diff --git a/data/stc-judgments.json b/data/stc-judgments.json index 193ac13..73a3edd 100644 --- a/data/stc-judgments.json +++ b/data/stc-judgments.json @@ -1 +1 @@ -[{"tags":["Criminal Law – Statutory Offences – Penal Code – Outrage of Modesty","Criminal Procedure and Sentencing – Joint Trial","Evidence – Standard of Proof – Unusually Convincing Standard – Corroboration","Evidence – Principles – Considerations in Cases of Sexual Violence","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-11-14","court":"Magistrate's Court","case-number":"Magistrate's Arrest Case No. 910838 of 2021 & 7 Ors, Magistrate's Appeal No. 9170-2024-01","title":"Public Prosecutor v Rajpal Singh","citation":"[2024] SGMC 80","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32474-SSP.xml","counsel":["Selene Yap and Gladys Lim (Attorney-General's Chambers) for the Public Prosecutor","Anil Murkoth Changaroth (RHTLaw Asia LLP) for the Accused."],"timestamp":"2024-11-20T16:00:00Z[GMT]","coram":"Sharmila Sripathy-Shanaz","html":"Public Prosecutor v Rajpal Singh

Public Prosecutor v Rajpal Singh
[2024] SGMC 80

Case Number:Magistrate's Arrest Case No. 910838 of 2021 & 7 Ors, Magistrate's Appeal No. 9170-2024-01
Decision Date:14 November 2024
Tribunal/Court:Magistrate's Court
Coram: Sharmila Sripathy-Shanaz
Counsel Name(s): Selene Yap and Gladys Lim (Attorney-General's Chambers) for the Public Prosecutor; Anil Murkoth Changaroth (RHTLaw Asia LLP) for the Accused.
Parties: Public Prosecutor — Rajpal Singh

Criminal Law – Statutory Offences – Penal Code – Outrage of Modesty

Criminal Procedure and Sentencing – Joint Trial

Evidence – Standard of Proof – Unusually Convincing Standard – Corroboration

Evidence – Principles – Considerations in Cases of Sexual Violence

Criminal Procedure and Sentencing – Sentencing – Principles

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9170/2024/01.]

14 November 2024

District Judge Sharmila Sripathy-Shanaz:

Introduction

1       The accused, Rajpal Singh (“the Accused”) claimed trial to eight counts of outraging the modesty of four women.[note: 1] It was alleged that the Accused had either slapped or smacked the buttocks, touched the breasts or touched the vaginas of the four complainants during yoga classes under his tutelage at ‘Trust Yoga’.[note: 2]

2       Following the trial, I convicted the Accused of five charges of molestation pertaining to three complainants and sentenced him to a total of 23 months’ imprisonment and 4 strokes of the cane. I acquitted him of three charges pertaining to the remaining complainant.

3       Dissatisfied with his conviction and sentence, the Accused has filed an appeal. These grounds incorporate the detailed oral remarks I had delivered at the time of convicting and sentencing him.

4       As an order under s 7(3) of the State Courts Act 1970 is in force to protect the identity of the complainants, their names have been replaced with an alphabetic mnemonic in these grounds:

(a)     PW1 – Ms C

(b)     PW3 – Ms V

(c)     PW4 – Ms Y

(d)     PW5 – Ms R

The Charges

5       The Accused was convicted of the following charges which averred that he had intended to outrage the modesty of the Ms C, Ms R and Ms V in the following manner:

1st Charge

MAC-910838-2021

On one occasion in November 2019, at Trust Yoga, used criminal force on Ms R by using his hand to slap her buttock.

7th Charge

MAC-910844-2021

On one occasion sometime after 30 September 2019 to around 11 March 2020, at Trust Yoga, used criminal force on Ms V by using his hand to slap her buttock.

8th Charge

MAC-910845-2021

On one occasion sometime after 30 September 2019 to around 11 March 2020, at Trust Yoga, used criminal force on Ms V by using his hand to touch her vagina.

9th Charge

MAC-910846-2021

On 11 July 2020 between 4.30pm and 5.30pm, at Trust Yoga, used criminal force on Ms C by smacking her buttock with his hand.

10th Charge

MAC-910847-2021

On 11 July 2020 between 4.30pm and 5.30pm, at Trust Yoga, used criminal force on Ms C by touching one of her butt cheeks to her vagina to her other butt cheek using his hand.



6       The Accused was acquitted of the following charges which averred that he had intended to outrage the modesty of Ms Y in the following manner:

4th Charge

MAC-910841-2021

On one occasion in January 2020, at Trust Yoga, used criminal force on Ms Y by touching her vagina with his hand.

5th Charge

MAC-910842-2021

On a second occasion between 8 January and 28 July 2020, at Trust Yoga, used criminal force on Ms Y by touching her breast with his hand.

6th Charge

MAC-910843-2021

On one occasion between 8 January 2020 and 28 July 2020, at Trust Yoga, used criminal force on Ms Y by touching her breasts with his hands.



Summary of the Parties’ Case

7       Given the breadth and multiplicity of the allegations, I begin by summarising the evidence led at trial and the key planks of the parties’ respective cases.

The Prosecution’s Case

Complainants’ evidence

8       On 13 July 2020, Ms C lodged a police report stating that she had been molested at Trust Yoga, two days earlier.[note: 3] Ms C began attending yoga classes at Trust Yoga in March 2020. In all, she attended ten classes with various teachers including the Accused.[note: 4] Her last class was on 11 July 2020, the day of the incidents. Ms C testified that the Accused had molested her twice during this class by:

(a)     slapping her left butt cheek whilst she was in a Forward Bend Pose.[note: 5] This formed the 9th Charge; and

(b)     swiping his hand from her left butt cheek to her vagina and thereafter to her right butt cheek whilst she was in an inverted pose known as the Pincha Mayurasana (“Pincha Pose”).[note: 6] This formed the 10th Charge.

9       After class, Ms C exchanged text messages with her friend[note: 7] (“Ms J”) and her mother,[note: 8] and spoke to Mr Arvind Ganaraj (“Mr Arvind”), an assistant sales manager at Trust Yoga, about what had transpired during the class. Ms C’s exchange with Mr Arvind continued via text message[note: 9] and over several phone calls in the early hours of 12 July 2020.[note: 10]

10     On 12 July 2020, Ms C and her father discussed the incidents during a meeting with the owners of Trust Yoga, Ms Wong Shiou An (“Ms Shiou An”) and Mr Manoj Kumar Deshwal (“Mr Manoj”).[note: 11] On 31 July 2020, Ms C posted about her experience on Twitter.[note: 12] On 18 August 2020, she lodged an online police report pertaining to the same matter, as she wanted to ensure that the facts she had mentioned to the police during the first report, had been recorded accurately.[note: 13]

11     Ms R and Ms Y reached out to Ms C online, on 5 August 2020 and 18 August 2020 respectively,[note: 14] after reading about her experience. They subsequently made police reports about their own encounters with the Accused.

12     In this regard, on 5 August 2020, Ms R lodged a police report stating that the Accused had smacked her on the bum after adjusting her during a class sometime in November 2019.[note: 15] This formed the 1st Charge. It was not in dispute that Ms R was in a Forward Bend Pose when the alleged act occurred.[note: 16] She subsequently detailed her experience in a Facebook post.[note: 17] Ms R had been a student of Trust Yoga since October 2019. Her last lesson was on 4 August 2020.[note: 18]

13     On 24 August 2020, Ms Y lodged a police report stating that she had been molested by the Accused several times. In court, she explained that:

(a)     on one occasion, whilst in a Centre Split Pose, the Accused had placed his hand on her vagina. This formed the 4th Charge; and

(b)     on more than one occasion, whilst in a Bow Pose, the Accused had groped her breasts. This formed the 5th and 6th Charges.

14     Ms Y had been a student of Trust Yoga since September 2019 and attended group classes as well as personal training sessions with the Accused.[note: 19]

15     Separately, on 25 August 2020, Ms V contacted one Ni Chia Min Judy (“Judy”) on Facebook after seeing the latter’s Google review on Trust Yoga.[note: 20] Judy referred Ms V to Ms C.[note: 21] On 29 August 2020, Ms V lodged a police report[note: 22] stating that the Accused had touched her inappropriately:

(a)     by smacking her butt cheeks when she was in a Forward Bend Pose. This formed the 7th Charge; and

(b)     by swiping his hand across her vagina when she was performing an Inner Thigh Stretch. This formed the 8th Charge.

16     Ms V was a student at Trust Yoga between 30 September 2019 and 29 July 2020.[note: 23]

17     At trial, parties agreed that the following illustrations broadly depicted the various poses assumed by the complainants:

Forward Bend Pose [note: 24]

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Pincha Pose [note: 25]

\"\"

Inner Thigh Stretch [note: 26]

\"\"

Center Split Pose [note: 27]

\"\"

Bow Pose [note: 28]

\"\"

Prosecution’s submissions

18     Broadly, it was the Prosecution’s case that the complainants were credible witnesses whose accounts were unusually convincing, compelling and bolstered by (i) the absence of any reason to fabricate evidence against the Accused, and (ii) their palpable distress when recounting the incidents in court.[note: 29] It was also argued that there was no evidence of collusion[note: 30] and that Ms V, Ms R and Ms Y had given credible explanations for their delayed reporting of the incidents.[note: 31]

19     In contrast, the Prosecution submitted that the Accused was an evasive witness who had given inconsistent evidence and made use of his position as a yoga teacher to commit the offences.[note: 32] It was further submitted that the Accused’s alternative defence to the charges involving Ms V and Ms R, viz. the assertion that if he had touched the complainants as alleged it was merely to adjust them, was internally inconsistent with his primary position that he had never touched their private parts.[note: 33]

20     The Prosecution asserted that the evidence of the Defence witnesses was irrelevant as none of them had witnessed the incidents in question.[note: 34]

The Defence’s Case

Accused’s evidence

21     The Accused was a yoga instructor at Trust Yoga from 1 April 2019 till he was placed on a leave of absence on 3 August 2020 as a result of police investigations into Ms C’s complaint.[note: 35]

22     It was the Accused’s practice[note: 36] to adjust his students by “tapping” on the body part that he wanted them to focus on as he found this was more effective than giving verbal cues.[note: 37] He gave the examples of tapping a student on the leg if it was not straight or tapping the student’s hand if it was improperly positioned.[note: 38] He explained that whilst he used the term “tap” to describe how he undertook adjustments, “the same action [could] be called a slap” by “a layman or an outsider”.[note: 39]

23     The Accused denied committing the physical acts alleged by the complainants and testified that no yoga adjustments would necessitate touching or tapping a student’s private parts which he agreed, encompassed the buttocks, penis, vagina and breasts.[note: 40] He gave evidence that he would “never tap anyone at the wrong part of the body”[note: 41] because he knew that he was not supposed to do so.[note: 42] He was thus “very careful” not to touch a student’s private parts during adjustments to their yoga posture.[note: 43]

24     At trial, the Accused asserted that he would never tap a student on “the centre part of the hip”. He clarified that this phrase was a reference to the left and right butt cheek.[note: 44] A photograph of the Accused demonstrating what he coined, “the centre part of the hip”, was admitted in evidence as Exhibit D7:

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25     The Accused explained the adjustments he would typically make to the various poses of relevance to the trial (reproduced at [17] above):

Forward Bend Pose

If the student’s back is not completely bent forward, he will tap their back to alert them to bend forward. If the student is a beginner, he will push the lower back down slightly.[note: 45] If the student’s thighs or knees are bent, the Accused will tap them slightly on their thigh and tell them to keep their knees straight.[note: 46]

Pincha Pose

If a student is unable to attain the correct position and the Accused feels that they need to focus or engage a particular muscle or body part, he will use one hand to balance and hold the student’s leg. He will then use his other hand to slightly tap and ask the student to focus or engage that particular muscle or body part.

For example, if the toes are not straight, he will tap them on the toes. If the thigh muscles are not engaged properly, he will tap it slightly and ask the student to tighten or engage the thigh muscles.[note: 47]

Inner Thigh Stretch

If the pose is done without the aid and support of a wall, the student will have to widen and stretch their legs with their own hands. When adjusting a mediocre student, the Accused will push down their heel. Where a student is able to touch the ground with their toes, the Accused will push down their thighs and rotate it externally.[note: 48]

Centre Split Pose

To adjust this posture, the Accused will push down the student’s knees with both hands. If the student is “very advanced in this posture”, the Accused will go near the thigh, close to the knee, and do an external rotation.[note: 49]

Bow Pose

The Accused will stand behind the student, in the gap between the student’s knees, hold their ankles and lift it up towards the ceiling.[note: 50]



Defence’s submissions

26     The Defence case was premised upon the following broad assertions at trial and in closing submissions, with clarifications proffered subsequent to the court’s queries:

(a)     the Prosecution had failed to establish the actus reus of the offences as the Accused had not touched the complainants’ breasts, vaginas and buttocks as alleged;[note: 51]

(b)     the Accused had no intention of outraging the modesty of the complainants.[note: 52] He had only adjusted his students “in the context of yoga training”.[note: 53] Such adjustments were “a widely accepted and utilised practice” at Trust Yoga;[note: 54]

(c)     the complainants had not provided testimony that was unusually convincing for the following reasons –

(i)       Ms C’s police report stood “in stark contrast to the events captured by the CCTV footage.”[note: 55] Her evidence was “coached and rehearsed as she had consulted a lawyer” after filing the first police report;[note: 56]

(ii)       Ms V was unable to state the exact time period of the alleged offences. Her evidence did not have the ‘ring of truth’ as she continued attending the Accused’s lessons after the alleged offences;[note: 57]

(iii)       Ms Y was unable to “provide a narrower timeframe as to the alleged traumatic incidents” and continued attending private lessons with the Accused after the alleged offences. The police report was only made approximately four months after the offences;[note: 58] and

(iv)       Ms R returned for classes with the Accused after having been allegedly slapped on the buttocks by him. This was not logical or coherent. Her police report was made approximately 8 months after the alleged offence;[note: 59]

(d)     “common sense” would dictate that[note: 60] –

(i)       the complainants would switch instructors and stop attending classes with the Accused after he had outraged their modesty;

(ii)       the complainants would cease one-to-one interactions with the Accused; and

(iii)       complainants “of such offences” would remember or at least note down when exactly the offences had occurred;

(e)     greater weight should be given the evidence of the Defence witnesses as they had consistently maintained that the Accused was skilled in his adjustments.[note: 61]

The Issues for Determination

27     The key issues before this Court were:

(a)     whether the Accused had touched the complainants as alleged; and

(b)     whether he had done so with the intention of outraging their modesty.

28     As intention is purely an operation of the mind, it can only be proved by drawing inferences from the surrounding circumstances and the acts of the person in question: Sim Yew Thong v Ng Loy Nam Thomas and other appeals [2000] SGHC 186 at [18].

29     The parties concurred that if the Court found that the Accused had touched the complainants’ private parts as alleged, the finding that he had done so with the intention of outraging their modesty would necessarily follow since the Accused accepted that no legitimate adjustments would require him to touch his students’ private parts. [note: 62] It was also not the Defence’s case that the touches were accidental.[note: 63]

Legal Principles

The Law

30     In assessing the evidence, I was mindful that the uncorroborated evidence of a complainant may form the sole basis for a conviction only if, having regard to the complainant’s demeanour and the internal and external consistencies of the witness’ evidence, the testimony is “unusually convincing” such that it leaves the court satisfied that no reasonable doubt exists in favour of the accused: Public Prosecutor v GCK [2020] 1 SLR 486 at [87] – [88]; Haliffie bin Mamat v Public Prosecutor and other appeals [2016] 5 SLR 636 at [28]; AOF v Public Prosecutor [2012] 3 SLR 3 at [111] (“AOF”) and Public Prosecutor v Mohammed Liton Mohammed Syeed Malik [2008] 1 SLR(R) 601 [37].

31     In determining whether a complainant’s evidence is corroborated, a liberal approach is adopted. In this regard, the Court will treat the subsequent complain made by a complainant as corroboration provided that the statement implicating the offender was made at the first reasonable opportunity after the commission of the offence: AOF at [173] citing Public Prosecutor v Mardai [1950] MLJ 33.

Important Considerations in Cases of Sexual Violence

32     While the trial concerned allegations of “a similar character”[note: 64] by multiple women, I approached the evaluation of the evidence with deliberate and meticulous care to ensure that the claims of each complainant were scrutinised separately, on their own merits, without any undue influence from the broader context of related allegations. Consequently, my assessment focused solely on the evidence of each complaint and the credibility of the individual complainants.

33     The trial also presented an opportunity to explain how a delay in reporting a sexual offence ought to factor in the court’s assessment of the evidence. I accepted that there is no general rule requiring victims of sexual offences to report the offences immediately or in a timely fashion: Public Prosecutor v Yue Roger Jr [2018] SGHC 125 at [30], Haliffie bin Mamat v Public Prosecutor and other appeals [2016] 5 SLR 636 at [67].

34     I also accepted that a delayed report does not, in itself, automatically render an allegation of sexual assault, suspect. The dynamics of sexual offences often involve significant psychological and emotional complexities that can inhibit immediate reporting. Complainants may experience a range of overwhelming emotions, such as fear, shame or confusion, which can impact their ability to come forward promptly.

35     Judicial wisdom requires the court to approach these situations with an understanding of the complexities involved and assess the veracity of an allegation based on the entirety of the evidence presented, including explanations proffered by the complainant for the delay in reporting, rather than solely on the timing of the report.

36     Relatedly, I took the view that the absence of overt distress or outcry in the aftermath of a sexual assault does not automatically render the allegation dubious. Victims of sexual offences may not behave in a stereotypical way, and it is imperative that the court guards against assessing the evidence before it based on preconceived notions of how a victim should act or react, or as the Accused was wont to express in this case, what “common sense”[note: 65] dictates.

37     It is the duty of the court to assess the evidence before it holistically and ensure that justice is not compromised by misconceptions surrounding sexual offending.

38     Guided by these considerations, I made the following findings.

The Court’s Findings

The Charges Involving Ms C

39     The offences involving Ms C, were the subject matter of the 9th and 10th Charges. Having scrutinised the evidence, I was satisfied that Ms C was an unusually convincing witness who had provided cogent, textured and compelling testimony. The same could not be said of the Accused’s claims. I explain.

Internal consistency

40     I found Ms C’s evidence to be internally consistent for several reasons.

41     First, her vivid and granular description of the incident remained unshaken under cross-examination and rendered her evidence compelling. In respect of the 9th Charge, Ms C testified that she was in the Forward Bend Pose when the Accused had approached her on the left, said something that she was unable to hear, and proceeded to “smack [her] left butt cheek” with his hand before walking off and continuing with his teaching “like nothing had happened”. Ms C described the unsolicited touch as a “smack” because “there was some speed to it.”[note: 66]

42     She explained that she was “in shock” and “felt very anxious” but did not say anything as the Accused had resumed teaching and she “didn’t really know what to do” and “how to disrupt the class”.[note: 67]

43     The 10th Charge, the subject of the second incident, occurred sometime later when Ms C was in the Pincha Pose:[note: 68]

Q

So tell us what happened in the second incident.

A

[W]e were practising the pincha. I was kicking up against the wall. So we were practising for stability and balance. So Raj was moving around the class adjusting everyone. When he came to me, one hand was on my calf and the other hand was groping me from one butt cheek. And then he went in between to the middle area of my groin and crotch area – the vaginal area – before moving on to the other --- ending off at the other end of my butt. So from one butt to the middle to the other end of the butt. And his other hand was on my calf.

Q:

[W]hen you say “groping”, can you explain what that means?

A:

So he used his hand again to like a swiping motion from one side to the middle to the other side. So it was a like a joined smooth movement. Yah.

 

(emphasis added)



44     Second, Ms C was able to provide logical and rational explanations of the various case theories the Accused had advanced in his own defence at trial.

45     Chiefly, I did not find the veracity of Ms C’s evidence to be undermined by the fact that she neither vocalised her discomfort to the Accused or remained in the class for the remaining duration of the lesson, as she cogently explained her frame of mind at the time, and the amalgam of emotions she experienced:

 

Examination-in-Chief [note: 69]

Q:

And so what happened after that?

A:

So that was also shocking to me. So after that, I was very affected. So I was mostly kneeling on my mat looking at Raj but he, like with the first incident, just continued teaching as if nothing happened. I was --- I wasn’t really able to continue with class also, so I was on the mat a lot. And Raj also asked me why I wasn’t following along. And I shook my head and told him that I didn’t want to continue. But he was insisting that I go and do like the handstand portion.

Q:

And, Ms Lim, you said that you weren’t able to continue with the class. Why?

A:

I felt violated. It wasn’t something that I expected to happen during yoga class by a teacher. It just felt very---it just felt wrong especially because I go to yoga class to---it’s kind of like a physical and mental break for myself and I didn’t expect this to happen. So for this to happen in what I thought was a safe space just felt very shocking to me at that time and, yah, I---I wasn’t---I was just very confused and I didn’t know how to react

 

Cross-Examination [note: 70]

Q:

[I]n paragraph 33, you say in the middle of it, it says:

“I did not know what to do or whether I should scold him in front of the other students for molesting me.”

Why would you feel that way? Because if it was as you described it … why would you not say something?

A:

So, like I mentioned in paragraph 22, this is the first time I was assaulted in class. So, it was very shocking and unexpected to me. I don’t think there is a scenario where I prepared or prepared to be in this scenario. So, it felt very difficult for me to speak up, especially because I am in the class as a student and he has the authority in the room. And it also took some time for me to collect myself. Even after he left the room, I also did not immediately do something. I was still trying to collect myself.

 

(emphasis added)



46     To the intimation that she did not appear to be in shock since she continued with the class, Ms C explained that she was simply trying to process her feelings as the class progressed:[note: 71]

A:

I don’t feel very comfortable with what he’s insinuating. I was still trying to process my feelings and movement helps me process difficult feelings. So, this might not register as shock to you but I know what I felt at that time and the violation I felt shouldn’t be minimised just because I continued certain movements.

 

[…]

Q:

[M]y question is that: so, you are participating?

Court:

Let her answer.

 

Yes, Ms [C]?

A:

So, I was participating but there were number of times where I---I didn’t feel like I was really participating. A lot of the time, I was just on the mat. Yah. Especially because Raj also came up to me and he also asked me why I wasn’t following along. So, I also felt pressured to continue as opposed to just waiting for class to end and not participating at all.

 

(emphasis added)



47     I found nothing remiss in Ms C’s explanations; there was no merit in the insinuation that her passivity in class was incompatible with her allegations of sexual violation. To restate a point made earlier (supra at [36]), it is well established that the behaviour of a victim of sexual assault cannot always be expected to align with what might be perceived as a typical or expected response: GBR v Public Prosecutor [2018] 3 SLR 1048 at [20]. As our legal system recognises that each individual’s reaction to trauma is unique and personal, I did not regard the absence of immediate confrontation as a marker of the credibility or veracity of Ms C’s claims. That assessment had to undertaken holistically, within the broader context of the evidence available. The ensuing analysis demonstrates how this was achieved.

Corroboration and external consistency

48     Internal consistency aside, I found Ms C’s evidence of the incidents as a whole, fortified by other corroborative evidence.

49     First, Ms C’s testimony was consistent with the account she had furnished to the police in the online report lodged on 18 August 2020 (Tab B, ASOF). In this report, Ms C disclosed that she had been in the Forward Bend Pose when the Accused had “approached from [the] left, said something inaudible and then suddenly slapped [her] left butt cheek.”[note: 72] As with her testimony in court, Ms C stated that she “was very shocked and felt distressed and violated”.[note: 73] She also stated that she was “stunned and overwhelmed with shock, confusion and distress” as this “was the first time [she had] ever been molested and physically violated.”[note: 74]

50     In narrating the second incident of molest in the report, Ms C had stated that she was in the Pincha Pose when the Accused, with one of his hands supporting her calves, used his other hand “to slowly stroke [her] from [her] left buttock cheek, [her] crotch and groin (vaginal region), to [her] right butt cheek” in “a slow, deliberate and smooth stroke that lasted about 3 seconds.”[note: 75] In the report, Ms C had similarly recounted feeling “extremely shocked by [the] even more intrusive touching” and disclosed that she did “not fully” participate in the rest of the class.[note: 76]

51     I did not agree with the Defence’s assertion that Ms C’s detailed account of the incident in the second police report was “coached and rehearsed” merely because she had consulted a lawyer.[note: 77] Quite apart from the fact that Ms C was never confronted with this proposition, and was thus denied the opportunity to respond to it (falling foul of the rule in Browne v Dunn)[note: 78], the Defence’s submission blithely ignored Ms C’s unchallenged explanation that:

(a)     she had provided the same detailed account when she filed the first police report on 13 July 2020;[note: 79]

(b)     she did not know that the details she had furnished on 13July 2020 had not been included in any official documents until she showed her lawyer the first police report and “he asked [her] where’s the rest of it”;[note: 80]

(c)     she had filed the second police report because she was not satisfied with the first report[note: 81] and “wanted to make sure that the facts [she had] mentioned to the officer and the IO previously [had] been recorded accurately”;[note: 82] and

(d)     the lawyer’s advice was confined to asking her questions about the “background context, how many classes [she had] been to at Trust Yoga”, advising her to include “as much detail as [she could] remember about the two incidents [and] what happened after that” as well as enquiring if she was “okay going to make a police report on [her] own”.[note: 83]

52     I was satisfied that Ms C’s account in the second police report was not coached. It was clear to me that she had, on the advice of her lawyer, simply sought to recount the incidents in as much detail as possible and have her experience recorded in the manner that she “wanted it written.”[note: 84]

53     Second, Ms C’s account of the two incidents also accorded with her Twitter posts on 31 July 2020 (Tab R, ASOF), in which she disclosed the two incidents of molest in broad terms. I reproduce the post for ease of reference:[note: 85]

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54     On the whole, I found no inconsistencies between Ms C’s narration of the incidents of molest in the second police report, her Twitter posts and her evidence in court.

55     Third, I agreed with the Prosecution that CCTV footage, admitted in evidence as Exhibit P1, corroborated aspects of Ms C’s testimony. Pertinently, the footage captured the Accused’s contact with Ms C’s buttocks during the class. Still images of the footage at timestamp 10:01, identified by Ms C as the time of the first incident[note: 86], did indeed show the Accused’s hand on her left butt cheek:

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56     Given the angle and position of the Accused’s hand vis-à-vis Ms C’s body and posture, I did not agree with the Defence’s assertion that the above images showed the Accused’s hand in contact with Ms C’s thigh. Further undermining the veracity of the latter claim, was the belatedness with which it arose; a point I address in greater detail at [74] below.

57     I also did not find Ms C’s inability to pinpoint in the CCTV footage, the precise moment at which the transgression upon her vagina had occurred, to undermine her evidence in respect of the 10th Charge. It was important to have regard to her explanation as to why this was so:

 

Examination-In-Chief [note: 87]

A:

[I]t happened when I was kicking up against the wall. But that happened a few times during the CCTV footage and I tried watching really closely but I can’t really point out which exact timing it was.

 

[…]

Q:

[Y]ou had identified three points in time when you were doing the pincha pose. Earlier, you also said that you could not identify the specific timestamp where the second incident happened. Is that correct?

A:

Yah, I can’t really see clearly from the footage.

 

Cross-Examination [note: 88]

A:

I can see my legs but I---because we kicked up quite a few times and because he adjusted me a few times, I hesitate to point out in the footage at which exact point because I cannot see clearly.

 

Re-Examination [note: 89]

A:

[A]lthough there is CCTV footage we don’t have a super close-up view, I could still point out the time frames where it might have happened although it might not be as exact as preferred.

 

(emphasis added)



58     Having viewed the CCTV footage multiple times, I found myself in agreement with Ms C’s observation that the footage was not clear enough; indeed, the angle and zoomed-out perspective that the CCTV footage provided, coupled with Ms C’s inverted posture in the Pincha Pose (unlike the Forward Bend Pose at timestamp 10:01), did not facilitate the precise identification exercise required of her, since her legs and buttocks were not fully and clearly visible. I thus found no merit in the insinuation that Ms C’s credibility was undermined “because she could not pinpoint the exact moment when the incident occurred”.[note: 90] If anything, I found Ms C’s credibility bolstered by her candour and the lack of embellishment in her testimony.

59     I also found untenable, the Defence’s submission that aspects of the second police report did not align with the CCTV footage. [note: 91] Ms C gave reasonable explanations in response to the various doubts the Defence had attempted to sow in her testimony:

(a)     to the assertion that the CCTV footage did not capture the shock, distress and feeling of violation she had reported experiencing, Ms C testified: [note: 92]

A:

[I] don’t think the CCTV footage is clear enough for you to focus on my expression. And I don’t know what kind of emotional expression you would qualify as shocked, distress and violated because though that’s what I was feeling, you can’t just say that I don’t look like it.



(b)     to the contention that the CCTV footage did not show her jerking out of pose, she explained that the references to the same in her police statement were simply meant to reflect the fact that:

(i)       she had “got out of the forward fold” position she was in[note: 93] and “looked up”[note: 94]; and

(ii)       she “felt very wobbly” and “felt very unstable” even if it did not clearly show on the footage.[note: 95]

60     Fourth, there was ample corroboration of other material aspects of Ms C’s account of the incidents. For instance, Ms C’s assertion that she had not fully participated in the class after the second incident and had noticed Mr Arvind looking into the classroom through the glass door from time to time,[note: 96] was corroborated by Mr Arvind who testified that he had indeed walked past the studio to “peep from outside” after observing, from the CCTV screen playing in the sales room, “that [Ms C] was not participating as how she used” and “was taking way too more (sic) breaks”.[note: 97]

61     Mr Arvind’s inability to identify portions of the CCTV footage where Ms C was not actively participating can be explained by the fact that Exhibit P1 was a sped-up version that compressed a full one-hour class into a recording of only 18 minutes.[note: 98] This was vastly different to the real time CCTV video Mr Arvind had watched in the sales room on 11 July 2020,[note: 99] from which he was able to discern Ms C’s patent discomfort.

62     Pertinently, Ms C’s evidence as to her passivity in the aftermath of the second assault was corroborated by the Accused himself, who testified that he had questioned Ms C’s non-participation in the latter part of the class after several Pincha Poses had been performed:[note: 100]

Q:

15.01. Yes?

A:

You would have seen that when I went near [Ms C], I was telling her something … There was this one time that she was sitting in the class. And I went near her, and I asked her, “Why are you sitting down?” And she told me that she was feeling tired … You can see it on the CCTV that after talking to her for a while, I even gestured with my hand to continue. And after which, she continued with the last posture … I surely and remember it very firmly that I did speak to her and ask her. I asked her as to “why are you sitting down in the class”, and she replied by saying that she is tired.

Q:

And are you saying that this is the time when you did that?

A:

Watching this footage, I think that this is the time that I spoke to her.

 

(emphasis added)



63     The Accused’s assertion to this effect was also found in the statement he gave to the police on 15 July 2020 (admitted as Exhibit P5, without any challenge to voluntariness), wherein he stated:

8

During the classes, I remembered that I had asked her why she was not doing one of the posture and she told tired. I then told her to do the posture …

 

(emphasis added)



64     The Accused’s evidence cohered with Ms C’s account on three levels:

(a)     it confirmed Ms C’s and Mr Arvind’s testimony that she had, at one juncture, sat on the mat without participating in the class;

(b)     it confirmed Ms C’s testimony that this overt reticence to participate had occurred after she had assumed several Pincha Poses; and

(c)     it confirmed Ms C’s evidence that the Accused had “asked [her] why [she] wasn’t following along” and thereafter insisted that she perform the posture.[note: 101] While the Accused subsequently claimed that Ms C had attributed her non-participation in class to tiredness, Ms C’s testimony that she had only told the Accused that she did not want to continue,[note: 102] was unchallenged when she was on the stand. This rendered the Accused’s assertion vis-à-vis the reason proffered by Ms C for her non-participation in class, dubious.

65     In addition to the above, Ms C’s evidence as a whole, was also materially corroborated by the disclosures she made to various individuals following the class. These included near immediate disclosures to:

(a)     her friend, Ms J, in a series of text messages sent at 5.32 p.m. on 11 July 2020, as soon as the class ended.[note: 103] In these messages, Ms C disclosed that the Accused had “smacked the side of [her] butt when [she] was in forward fold” and “groped [her] ass” when “he was supposed to assist me in pincha”.[note: 104] I found nothing untoward about Ms C’s omission to mention that the Accused had groped her vagina as I accepted her explanation that she did not go into much detail because she was not “functioning well at that point”, was “tearing”, “felt very anxious” and had “a lot of thoughts going through [her] head about how [to] proceed”.[note: 105] Ms C’s testimony as to her state of mind then, resonated with her contemporaneous messages in which she stated that she felt like crying, was “trying to breathe”, was “stressed” and was “trying to calm down”;[note: 106]

(b)     her mother at 6.24 p.m. on 11 July 2020, less than an hour after the class, informing her that the yoga teacher had “molested” her.[note: 107] Its brevity notwithstanding, the message captured the nub of Ms C’s allegation even as she was trying to collect her thoughts;[note: 108] and

(c)     Mr Arvind that she had been molested “on two separate occasions”, disclosing that “one was a smack on the butt cheeks” and that she was also inappropriately touched when she was in an inversion pose.[note: 109] This aspect of Mr Arvind’s testimony was not challenged by the Defence.

66     The evidence also showed that Ms C disclosed the thrust of her allegations to Ms Shiou An and Mr Manoj at the meeting she attended at Trust Yoga the following day (on 12 July 2020) where she revealed that she had been molested twice; first, when the Accused had “smack (sic) [her] butt” when she was in the Forward Bend Pose and again, when he had groped her during the Pincha Pose.[note: 110]

67     On the whole, I found Ms C’s narration of various material aspects of the incident to no less than three others, congruent with her testimony in Court. The contemporaneity of these disclosures, served to bolster her credibility.

68     Finally, Ms C’s palpable distress in the aftermath of the incident, as witnessed by Mr Arvind, was also consistent with her claims of molestation. Mr Arvind’s evidence that Ms C was in “crying uncontrollably” and “in a state of shock”[note: 111] as she conveyed her experience to him, was unchallenged by the Defence. Ms C’s demeanour corroborated her account, though I must stress that the absence of overt distress does not automatically render an allegation of molest suspect (supra at [36]).

69     For the foregoing reasons, I found Ms C’s evidence externally consistent with the evidence before the court.

Deficiencies in the Defence’s case

70     The Defence’s case stood in stark contrast to Ms C’s cogent evidence. The Accused’s economy with the truth came to the fore when he inadvertently confessed to touching Ms C’s buttocks in the following exchange with Defence Counsel when asked to explain Exhibits P7 and P8:[note: 112]

A

[I]n the picture you can clearly see that my hand is at thebottom part of the buttocks, my hands are sliding from the right side of the hips to thebottom of the buttocks … But my hand came from the side and it tapped her on thebottom of her buttocks.

 

(emphasis added)



71     To correct this Freudian slip, the Accused resorted to casting aspersions on the interpreter’s translation, asserting that he had said “thigh” and not “buttocks”. This accusation was roundly and vehemently rejected by the interpreter who explained that the Accused had not used the word “thigh” nor the Hindi equivalent of the word (“jhangh”) in the response in question.[note: 113] I had no reason to doubt the accuracy of the interpreter’s translation and her explanation satisfied me that the Accused had indeed used the word “buttocks”.

72     This was all the more so since the Accused’s contrary claim was illogical as it would mean that he had, but for the purported mistranslation, said that Exhibits P7 and P8 showed him touching the “bottom part of the thighs”, when the screenshots patently did not show this. This purported statement would also have been contrary to the Accused’s own earlier claims that Exhibits P7 and P8 showed his hand on Ms C’s “upper thigh”[note: 114] (as opposed to the bottom part of the thighs). It thus appeared to me that the Accused had indeed admitted to touching the “bottom part of the buttocks” three times and his claim of mistranslation was a desperate attempt to recant an otherwise damning admission. This undermined his credibility.

73     Even if I paid little to no heed to this parapraxis, there were other material deficiencies in the Accused’s evidence which severely undermined the cogency of the Defence’s case in relation to Ms C’s allegations. The most salient of these were:

(a)     the inconsistent positions the Accused had taken in relation to where he had touched Ms C in respect of the 9th Charge; and

(b)     the Defence’s failure to put several key aspects of its overarching case to Ms C (e.g., supra at [51] and [64(c)]), despite the court’s express caution and entreaty to do so.[note: 115]

74     In this connection, I could not ignore the fact that the Accused’s contention that he had merely touched Ms C’s thigh to adjust her Forward Bend Pose only arose in his examination-in-chief and was thus clearly an afterthought. The Accused’s explanation, viz. that he had been waiting for his turn to provide his version,[note: 116] was strained.

75     That the Accused’s statements to the police made no mention of the fact that he had touched Ms C’s thigh, lent credence to the above finding. In fact, I would highlight that in his statement recorded on 6 August 2020 (admitted as Exhibit P6, without any challenge to voluntariness) the Accused expressly took a contrary position on where he had touched Ms C during the Forward Bend Pose, claiming that he had tapped the “left side of the hip near to her butt once”.[note: 117]

76     The Accused could not provide a coherent explanation for this material discrepancy between Exhibit P6 and his testimony in court. Despite earlier confirming that he was able to give an accurate account of what had happened during the recording of Exhibit P6,[note: 118] and agreeing that the statement did in fact accurately reflect what he had told the police in relation to the 9th Charge,[note: 119] the Accused subsequently sought to renege on these admissions by claiming that he had given a demonstration to the Investigating Officer only to be told by the latter that he had demonstrated touching Ms C on the upper thigh and not the hips.[note: 120] He claimed to have been “shocked” when he looked at Exhibit P6 because the demonstration he had given was “totally different” to what had been written in paragraph 11.[note: 121]

77     The Accused’s about-turn was problematic given his concession that (i) he knew the difference between the thigh and the left side of the hip, and (ii) could have included the word ‘thigh’ in Exhibit P6 if he had wanted to.[note: 122] Unsurprisingly, the Accused resorted to claiming that he had been denied the opportunity to make changes to Exhibit P6 as the Investigating Officer had rushed him when he had been attempting to read through the statement.[note: 123]

78     These allegations were squarely rejected by the Investigating Officer. Ultimately, the Defence’s failure to challenge the Investigating Officer’s evidence that (i) the Accused had not demonstrated any yoga postures during the recording of Exhibit P6, (ii) he had not informed the Accused that he had demonstrated touching Ms C’s thigh, and (iii) the Accused had been given the time and opportunity to make amendments to the statement, laid rest to the Defence’s claims to the contrary.[note: 124]

79     All considered, I found myself unable to place any weight on the Accused’s strained and shifting explanations for the material internal inconsistencies in his case. The Accused had shown himself to be a witness unworthy of credit and this cast doubt on the cogency of the Defence’s case in relation to the allegations involving Ms C as a whole.

The evidence of the Accused’s other students did not assist the Defence

80     I saw nothing in the evidence of the Defence witnesses that would assist the Accused. Ms Lim Nam Leng conceded that she was focused on her yoga practice during the class and was not paying attention to what Ms C had been doing for the duration of the class.[note: 125] The remaining Defence witnesses were not present in the class.

The conviction on the 9th and 10th charges

81     Drawing the strands together, I was satisfied beyond a reasonable doubt that the Accused had touched Ms C as alleged. The finding that he had done so with the intention of outraging her modesty necessarily followed since the Accused accepted that no legitimate adjustments would require him to touch his students’ private parts, and it was also not the Defence’s case that the touches were accidental (supra at [29]). I thus convicted him of the 9th and 10th Charges.

The Charges Involving Ms R and Ms V

82     While I had assessed the charges involving Ms R and Ms V separately, I deal with them together in these grounds to avoid repetition since the Accused’s defence vis-à-vis these allegations was the same. It bears reiterating that I was careful to ensure that my findings in relation to Ms C, did not taint my assessment of the remaining allegations involving the other complainants.

Ms R’s evidence

83     The 1st Charge involving Ms R, averred that the Accused had slapped her buttock during a class in November 2019.[note: 126] I found that Ms R had provided a textured account of the incident that was internally and externally consistent.

84     In court, Ms R testified with sufficient certainty that she had looked through her attendance records at Trust Yoga[note: 127] and determined, by a “process of elimination”, that the incident in question had occurred on 7 November 2019 as she distinctly recalled it having taken place during a non-peak class that ended around lunchtime at midday. She was also certain that it had not occurred during one of her first few sessions at Trust Yoga and that it was not a hot yoga class.[note: 128]

85     In my view, the fact that Ms R’s online police report (lodged on 5 August 2020 and admitted as Tab C, ASOF) stated that the incident had occurred on 16 November 2019, was not of any material consequence as I accepted her explanation that she had merely provided “an estimate based on what [she] could gather at that point in time” and “just put a middle date in November” as she believed she would not have been able to “advance with the online form” without completing the field that required particulars of the ‘Date/Time of Incident’.[note: 129]

86     In the course of her testimony, Ms R recalled with clarity, how the Accused had approached her from behind and smacked the left side of her buttocks with his hand after she had “fully recovered” from the Forward Bend Pose, which she explained to mean that she had “stood up” and was in a stable standing position.[note: 130] He had walked away nonchalantly thereafter. This was consistent with the accounts in both Ms R’s police report and her post on Facebook, penned on 26 August 2020 (Tab T-1, ASOF). Ms R asserted, unchallenged, that the touch was “not necessary, given the context of the situation”,[note: 131] since she had already completed the pose and thus did not require any adjustment.

87     In court, Ms R recounted continuing with the rest of the class because it was close to ending, even though she felt “very disoriented and confused”.[note: 132] Though she had contemplated raising the incident after she had left the class, she explained that she ultimately decided against it for the following reasons:

 

Examination-in-Chief [note: 133]

Q

What was going through your mind at that time?

A

First of all, it was a very disorienting period of time. I was still struggling with coming to terms with what happened actually. So, processing what had happened and eventually I---yah, looking back, it was definitely a phase of self-betrayal because I had convinced myself that there was no need to create so much trouble for this kind of thing and probably no one would believe me because, well, there’s no physical evidence.

 

Cross-Examination [note: 134]

A

I stayed calm throughout the whole thing and I didn’t report until August 2020. And I didn’t confront him either, in public or in private.

Q

But you did say that you’re very uncomfortable?

A

Yes.

Q

And yet you chose to keep your composure?

A

Yes. Because we are conditioned from young not to cause a scene. And I think that applies to me too … Meaning from young, a lot of us would be influenced, told, instructed to not make a scene. And that sticks which on hindsight should not have been my course of action.

 

(emphasis added)



88     The Defence argued that Ms R’s delayed report of the assault and continued attendance at subsequent classes taught by the Accused, rendered her account unbelievable.[note: 135] The fact that Ms R did not report the incident to anyone in authority till nine months later, on 5 August 2020, and had attended some classes taught by the Accused in the interim, gave me some pause. However, as highlighted above at [33] to [37], I was mindful that the court had to guard against assessing the evidence before it based on preconceived notions of how a victim should act or react. Instead, it was incumbent on the court to assess the evidence holistically.

89     In the present case, this necessarily entailed consideration of the explanations proffered by Ms R for her conduct after the offences. In this vein, I had regard to a series of posts Ms R made on Instagram on 22 August 2020 in which she explained what had happened to her and why she had reacted in the manner that she did.[note: 136] These posts were admitted in evidence as Tab X of the ASOF.

90     For ease of reference, I summarise salient aspects of Ms R’s testimony elaborating upon her Instagram posts in which she had detailed her internal thought process[note: 137] subsequent to the assault:

Instagram Posts [note: 138]

(reproduced in verbatim and uncorrected)

Ms R’s explanation

(emphasis added)

1) Anger Shock! Basically we instinctively know that this is wrong

“There is a difference between being touched accidentally and you know, just someone who move past and accidentally brushed their hand on your bum versus smacking it. So, you can call it the gut feeling---in the moment it’s very obvious that there’s something wrong here.”[note: 139]

2) But then doubt sets in. When that psychopath walks away nonchalantly as if its most normal thing to ever happen. So the internal conversation becomes: Am I over thinking? He’s an instructor so he should know what he’s doing right? Could it be an accident? (Not that some of us are new to yoga and unfamiliar with what proper adjustments look like)

“Because when faced with an authority figure in that context, someone who is---is in [the] position of a teacher, an instructor, even a guru or master … the question becomes, when I internally put this person on a pedestal … the assumption is that they know what they’re doing … [it was] an act of self-betrayal when I agreed with that assumption then I doubt my own experience.”[note: 140]

“[W]hole cloud of self-doubt that started to set in … so making up reasons in my mind so that I can hold onto that belief that this person is not a malicious predator hiding in plain sight all along.”[note: 141]

3) Even after repeated assaults, victims can still feel disoriented and confused because he otherwise seems very helpful and caring, almost eager sometimes to help you with your progress. So you think: He can’t possibly be out to hurt me right?

“[W]e want to hang on to that reality that he is a good teacher, he is there to help … the whole reality that he could be of malicious intent all along, out to violate me from the start, that’s too much of a drastic transition to grapple with. So … I just settle with “can’t be it, right?”[note: 142]

4) Plus he is popular and everyone seems to like him so maybe I’m the only one that’s experiencing this?

“[T]his is part of that group of self-doubt that sets in … it’s disorienting because is it even real because everyone else is reacting in a very loving way sometimes, you know, some of the perhaps more experienced students … I based off of their reaction and invalidated my own.”[note: 143]



91     The sum of Ms R’s evidence was that she knew that the Accused’s act was not an accident,[note: 144] but had, despite her initial shock and anger, “rationalised” it as an “accidental flick of the wrist” to keep her composure and go on with life,[note: 145] invalidating her own experience based on, amongst other things, the reactions of the Accused’s more experienced students who appeared to have a very good relationship with him.[note: 146] This was, as she termed it, an act of self-betrayal; “justifications” that she came up with to hold onto the reality that she was just a normal student with a normal instructor, going through life.[note: 147]

92     Ms R explained that she awoke from “this stupor” only when she read about Ms C’s experience and contacted her to relay her own encounter with the Accused (Tab S, ASOF):[note: 148]

Q

Why did you contact her?

A

Because she was the person who woke me up from this --- almost this stupor, basically and I wanted to first of all, thank her for---for doing what---what she did. And also … I was also not very sure at that time if I should lodge a police report, if this instance was too small of a thing … so I wanted to check in with her on that also. Yah.

 

(emphasis added)



93     She explained that Ms C corrected her initial misimpression that police reports were only intended for more significant offences like robbery and aggravated sexual offences like rape.[note: 149] Ms C’s social media post gave Ms R clarity that her “fog of self-doubt”[note: 150] and justifications were “not aligned with the truth”[note: 151] and had served as an excuse “to not confront the gravity of the situation”[note: 152], with ramifications for others apart from herself. This insight “blew the top off” the assault she had “suppressed”,[note: 153] jolting her into action and prompting her to lodge a police report hours later:[note: 154]

 

Cross-Examination [note: 155]

Q

And what made this perception that you had about making police reports change in August?

A

So, what changed in August was not taking action at all had dire consequences for other people, and its not just about myself. Maybe I can give second chance, maybe I can shelve it aside, you know, maybe I can move on with my life, but there are ripple effects, some of which I may never see or hear about, but they are still there.

 

Questions from the Court [note: 156]

Q

For the Court’s benefit, can you shed some light on what you mean when you say, “not taking action at all had dire consequences for other people, and not just for myself?”

A

So, what I meant was, by this inaction, other people, other students would be exposed to this same instructor, and potentially also be assaulted in the same way. Yah.

 

(emphasis added)



94     Ms R was so impacted by this insight that she felt it necessary to publicly acknowledge what had happened to her (on Instagram and Facebook) and ensure that her story “would not be a nameless, faceless kind of thing”.[note: 157]

95     Ms R’s initial decision to suppress the assault,[note: 158] push the incident aside,[note: 159] give the Accused the benefit of the doubt and a “second chance” to see “whether he would act the same way again”[note: 160], provides the context in which her subsequent post-incident attendance at some of the Accused’s classes, must be understood.

96     In any event, I am mindful that of the 57 classes Ms R had attended since 7 November 2019, only ten lessons were taught by the Accused. This accounted for less than one-fifth of her remaining classes at Trust Yoga and was not inconsistent with her evidence that she “generally avoided”[note: 161] taking the Accused’s classes except where her work obligations and dance classes, coupled with the Accused’s domination of the studio’s class schedule, made it untenable to do so.[note: 162]

97     Objectively, ten classes over a nine-month period in a studio where the Accused typically taught four out of six classes daily,[note: 163] could hardly be said to be a regular occurrence. If anything, Ms R’s subsequent attendance at the classes taught by the Accused would be best characterised as ad hoc and infrequent. This accorded with her testimony that she most of her classes were not with him.[note: 164]

98     Considering the evidence in its entirety, I found that Ms R had given reasonable explanations to any inherent improbabilities in her evidence that might, at first blush, have been said to arise from her seemingly counter-intuitive behaviour after the incident. Given the internal and external consistency in Ms R’s evidence, I found her to be an unusually convincing witness.

Ms V’s evidence

99     Ms V’s allegations that the Accused had slapped her buttocks and touched her vagina, formed the basis for the 7th and 8th Charges respectively.[note: 165] I likewise found her evidence clear and compelling.

100    I did not find Ms V’s inability to state the precise dates on which the incidents had occurred, to be fatal since she was able to provide a timeframe for the same. Taking reference from her class attendance records at Trust Yoga (Tab I, ASOF) Ms V testified that the intrusions had occurred on two occasions during classes at the Telok Ayer branch sometime after 30 September 2019 but before 11 March 2020.[note: 166]

101    It was Ms V’s evidence that the first incident had occurred when she was in the Forward Bend Pose. The Accused had approached her from behind and tried to push her further into the pose, as being new to yoga, she was very stiff and unable to bend forward as deeply as he had wanted her to. The Accused then proceeded to “smack” her butt cheek firmly with his hand before saying something “along the lines of [her] not trying hard enough to do that pose.” He then walked away and continued with the class.[note: 167]

102    Ms V explained that she “was very confused” by the Accused’s act which she knew was an “intentional action”.[note: 168] However, as she saw him doing the same thing to other female students “and nobody reacted [and] nobody said anything”, she did not want to “make a big deal out of this incident”, “thought that that was probably his style of teaching ” and decided not to “make a mountain out of a molehill”.[note: 169] Pertinently, I pause to observe that Ms V’s evidence that the Accused had slapped the buttocks of his other students, was unchallenged by the Defence when she was on the stand.[note: 170]

103    The court heard that the second incident occurred on another occasion when Ms V was performing a variation of the Inner Thigh Stretch (depicted at [17]), whilst lying on the floor with her legs “in the sky” and without the aid and support of a wall. Her hands were on her thighs, trying to stretch wider as she was very stiff. The Accused approached her from the front and began adjusting her by putting his hands on her inner thighs to help her achieve a wider stretch. Before leaving, he touched her “in one sweeping motion”[note: 171] “from the centre of [her] butt to [her] vagina”, using his hand.[note: 172] Ms V recalled feeling shocked and uncomfortable. She adjusted her position and saw the Accused walking away.

104    Ms V shared that she had not acted in the aftermath of the second incident because she was “too shocked”, “couldn’t process what had happened” and “refused to believe” that she had been touched inappropriately by a trained instructor.[note: 173] Ms V’s reticence to believe that the Accused had taken advantage of her, was also influenced by the fact that she had observed the “friendly relationship” the Accused had with his regular and advanced students, leading her to surmise that “he could be trusted as an instructor”.[note: 174]

105    Ms V further explained that she had returned for subsequent yoga classes because she “chose not to think” “too deeply” about what had transpired, reiterating that she “just did not want to believe that [she] had been touched inappropriately by an instructor.”[note: 175] Ms V resolutely rejected the Defence’s suggestion that she had consciously followed the Accused to Trust Yoga’s Tampines branch when it opened, explaining that the new location was closer to her home in Simei[note: 176] and that she not chosen her classes based on the instructor, but based on the class times, her preference for morning classes and her own availability based on her work schedule at the time. [note: 177]

106    I found Ms V’s testimony vis-à-vis the two incursions to her body and her ensuing thought process, consistent with the account in her police report (lodged on 29 August 2020 and admitted in evidence as Tab E, ASOF) in which she stated (reproduced in verbatim and uncorrected):

During the classes with him, he would occasionally give hard smacks on my butt cheeks when I was doing inversion[note: 178]poses. This happened several times on different occasions. Being a newcomer, I was very confused but repressed it and told myself not to overthink. I would even observed him doing it to other female students but nobody spoke up. There was even one occasion where I was doing a pose that involve me lying on the floor with my legs up in a V to stretch my inner thighs. He came over and molested me by spreading my thighs wider and then took the liberty to touch my crotch area by swiping his hand gently through my crotch. At that point of time, I felt very uncomfortable and was very confused. However, as being a new student, I once again, repressed the thoughts that I was being taken advantage of as I trusted him as a teacher and convinced myself that it was just an accident.

(emphasis added)



107    In the course of her testimony, Ms V shed critical light on how and why she decided to lodge the aforementioned police report, explaining that she only reflected upon her own experiences with the Accused when she learnt that Trust Yoga had removed the Accused from its class schedule and, upon undertaking a Google search, read accounts online of other girls who had been through a similar situation.[note: 179]

108    In this vein, the evidence showed that Ms V contacted Judy on 25 August 2020 on Facebook after seeing the latter’s Google review on Trust Yoga about a friend who had been molested by the Accused, as she wanted to share her own experience and find out what to do about the situation.[note: 180] This was borne-out by messages between Ms V and Judy, admitted in evidence as Tab U, ASOF:[note: 181]

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109    In court, Ms V testified that she had contemplated lodging a police report as the accounts of other girls who had been through a similar situation, “confirmed [her] worst fears” that the two incidents “were not mere accidents [as she had] wanted to believe initially”. Ms V gave voice to this realisation in the following manner, her distress patent to the court:[note: 182]

A

[A]fter reading all the stories, it was very upsetting. It was through Google that I found accounts of, like, other girls as well who had been through the similar situation and that led me to think about and reflect upon the incidents that happened to me, and---and---and confirmed my worst fears.

Court:

Take your time and you can continue with your - answer after you’ve composed yourself. Do you need to stop for a while---

Witness:

I’m okay.

Court:

---Ms [V]?

Witness:

I can continue.

[…]

A:

Led me to confirm that I was touched inappropriately in those incidents.

 

[…]

 

At that time, I---I really think back about those two incidents that I mentioned earlier, yah, and---and---and---decided that those---those two incidents were---were not mere accidents that I wanted to believe initially, and---and decided to reach out to someone so as to know the process on how to go ahead and lodge the police report.

[…]

Q:

So, what changed from initially wanted to not believe it to eventually wanting to bring justice for yourself and other people?

A:

So, like I said earlier, after reading the accounts of the other girls and reflecting [on] what had happened to me, I felt that the incidents that happened to me were not accidental.

 

(emphasis added)



110    Ms V explained that she had contacted Ms C to find out about “the police lodging process that she [had] been through”, specifically, “what she had done, how she had done it and what she experienced.”[note: 183] The “validation” she received from other girls dispelled her initial fears about what the reporting process entailed,[note: 184] and Ms V proceeded to lodge the police report as she wanted “justice” and was determined “to do something so as to protect other people as well”.[note: 185]

111    It bears repeating that the effect of any delay in reporting always falls to be assessed on the specific facts of each individual case. In the present case, the fact that Ms V did not complain in a timely manner and continued attending classes with the Accused, did not rob her of credibility. In the final analysis, I accepted as cogent, her explanations for this initial passivity.

112    Also lending credence to Ms V’s account, was the fact that her narration of the legitimate adjustments the Accused had undertaken just prior to molesting her (supra at [101] and [103]), in fact accorded with the Accused’s own evidence as to what he would have done to correct the poses she was in (supra at [25]).[note: 186] In my view, the material parallels between the two accounts demonstrated that Ms V’s recollection and narration of the circumstances leading to the acts of molest, was both accurate and truthful and could not be impugned.

113    Considering her evidence holistically, I found Ms V to be an unusually convincing witness.

The material deficiency in the Defence’s case

114    Again, the Defence’s case stood in stark contrast to the compelling evidence provided by both Ms V and Ms R. It must be remembered that the Accused’s defence to Ms V’s and Ms R’s allegations, was a bare denial, viz. that he had not touched them on their private parts as alleged, either intentionally or accidentally (supra at [23]).

115    Curiously however, the Defence’s alternative case at trial, that the Accused had merely been adjusting Ms V and Ms R if he had indeed touched their private parts,[note: 187] was glaringly inconsistent with the broader defence that no yoga adjustments would ever necessitate the Accused touching a student’s private parts. This contradictory and competing claim in the Defence’s case, was of such materiality to the central question confronting this court, that it the necessarily rendered the Accused’s case devoid of credibility.

116    For completeness, I pause to highlight that the evidence of the Defence witnesses did not assist the Accused as it was not the Defence’s case that they were present in the class with Ms R or Ms V at the material time, and thus privy to what had transpired.

The conviction on the 1st, 7th and 8th charges

117    In the final analysis, having found Ms V and Ms R to be unusually convincing witnesses, I accepted their evidence that they had been touched as alleged. I thus convicted the Accused on the 1st, 7th and 8th Charges; satisfied that these has been proven beyond a reasonable doubt.

118    My decision was fortified by the fact that neither Ms R nor Ms V had any reason to falsely implicate the Accused, a fact which he himself accepted.[note: 188] There was also no allegation of collusion. These findings applied equally to Ms C.

The Charges Involving Ms Y

119    Ms Y’s allegations that the Accused had touched her breasts and vagina on three separate occasions, gave rise to the 4th, 5th and 6th Charges.[note: 189] I had, at the close of trial, acquitted the Accused of these charges. Though the present appeal is only against the Accused’s conviction and sentence, I nonetheless, for completeness, briefly explain the premise for the acquittal.

Ms Y’s evidence

120    I reproduce salient parts of Ms Y’s testimony as summarised by the Prosecution in its closing submissions:[note: 190]

[92] For the first incident, [Ms Y] was practising a [Centre Split Pose] when the Accused used one hand to push the inside of her knee downwards. He placed his other hand on her vagina for the duration of the posture which [Ms Y] estimated to be around 15 seconds. [Ms Y] described feeling pressure at her vagina when the Accused pressed his hand down at the centre of her vagina. When this was happening, [Ms Y] felt a mix of confusion and shock. She felt confused as to why [the Accused’s] hand was at her vagina because it did not help her open her hips up but could not bring herself to say anything because she was stunned and her mind was a blank. The Accused carried on with class and did not address what happened. After she left class, she stated that she was hoping that the receptionists would ask her if something had happened as she assumed that the CCTV may have been livestreamed onto their monitors. The fact that they did not made her doubt herself.

[93] [Ms Y] testified that she felt shocked after the incident, and although she continued going for classes with the Accused, she was on the lookout for whether he would sexually assault her in the same way by touching her vagina.

[94] For the second incident, [Ms Y] stated that she was practicing the [Bow Pose]. She was holding her ankles with each of her hands in this position. The Accused was standing over and behind her with one hand pulling her ankles upwards and his other hand on her breast in an upward brushing motion across her nipples for about 15 seconds. The Accused against did not address what he did. This time, [Ms Y] felt that she had essentially allowed the Accused to molest her by going back for his classes. She thus convinced herself that given his popularity, he must not have molested her.

[95] The third incident occurred during another private class with the Accused. [Ms Y] was doing a variation of the Bow Pose, [with] the Accused standing behind her. [Instead] of holding her own ankles, [Ms Y] grabbed onto his legs. [Ms Y] mentioned that during this pose, her face was directly under the Accused’s penis and she felt uncomfortable. The Accused placed each of his hands on each of her breasts in a cupping motion. He then pulled her breasts upwards towards him. He did this for around 15 seconds. [Ms Y] froze when this happened to her. She could not explain why she froze, but described feeling lost for words and felt like she could not do anything.



121    Amongst the correspondence admitted in evidence, were the following messages Ms Y had sent to Ms Shiou An on 3 August 2020 (Exhibit D2):

\"\"

122    On the same day, she sent the following messages to the Accused (Tab V, ASOF):

\"\"

123    It is pertinent to note, for context, that the above messages were exchanged in the midst of multiple allegations of sexual assault made against the Accused in the online public sphere, which Ms Y was aware of.

The acquittal on the 4th, 5th and 6th charges

124    It must be remembered that the function of the trial process is to ascertain whether guilt is proved beyond a reasonable doubt. In this connection, the presumption of innocence mandates that any reasonable doubt must weigh in favour of the Defence.

125    In the present case, while Ms Y presented as an earnest witness, the question of whether a complainant is unusually convincing must be premised upon the reliability of her evidence. In the absence of other evidence, I found Ms Y’s continued active, unsolicited and vocal support of the Accused in the wake of multiple allegations of sexual assault surfacing, incongruent with her allegations of molest. This gave rise to reservations about the reliability of her narrative, notwithstanding her explanations in Court, and ultimately constrained a finding that her testimony was unusually convincing. In my judgment, a conviction on the 4th, 5th and 6th Charges would have been unsafe. I thus acquitted the Accused of these charges.

126    I must emphasise that this should not be construed as conveying that I had found that Ms Y was being untruthful. It meant only that Ms Y’s evidence was not sufficient on its own to lead to the conclusion that the case against the Accused had been proven beyond a reasonable doubt and result in his conviction.

Conclusion on the Findings

127    To summarise, after an assiduous assessment of the evidence led at trial, I convicted the Accused of five charges of molestation pertaining to Ms C, Ms R and Ms V, having found them to be unusually convincing witnesses. I acquitted him of the three charges pertaining to Ms Y.

128    I now turn to discuss the factors undergirding the sentence imposed on the Accused.

Sentencing

129    The sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) guides sentencing for offences under s 354(1) of the Penal Code and invites the court to adopt the following two-step sentencing band approach (at [46] – [49]):

(a)    First, the court should identify under which band the offence in question falls within, having regard to the factors which relate to the manner and mode by which the offence was committed as well as the harm caused to the victim (we shall refer to these as ‘offence-specific’ factors). Once the sentencing band, which defines the range of sentences which may usually be imposed for a case with those offence-specific features, has been identified the court should then determine precisely where within that range the present offence falls in order to derive an ‘indicative starting point’, which reflects the intrinsic seriousness of the offending act.

(b)    Secondly, the court should have regard to the aggravating and mitigating factors which are personal to the offender to calibrate the appropriate sentence for that offender. These ‘offender-specific’ factors relate to the offender’s particular personal circumstances and, by definition, cannot be the factors which have already been taken into account in the categorization of the offence. In exceptional circumstances, the court is entitled to move outside of the prescribed range for that band if, in its view, the case warrants such a departure.

130    The following were identified as relevant offence-specific factors (at [45(a)] of Kunasekaran):

(i) The degree of sexual exploitation. This includes considerations of the part of the victim’s body the accused touched, how the accused touched the victim, and the duration of the outrage of modesty.

(ii) The circumstances of the offence. These include considerations of: (A) the presence of premeditation; (B) the use of force or violence; (C) the abuse of a position of trust; (D) the use of deception; (E) the presence of other aggravating acts accompanying the outrage of modesty; and (F) the exploitation of a vulnerable victim.

(iii) The harm caused to the victim, whether physical or psychological, which would usually be set out in a victim impact statement.

(emphasis added)



131    The characteristics of each band were distilled in the following terms (at [45(b)] of Kunasekaran):

a) Band 1: This includes cases that do not present any, or at most one, of the offence-specific factors, and typically involves cases that involve a fleeting touch or no skin-to-skin contact, and no intrusion into the victim’s private parts.

b) Band 2: This includes cases where two or more of the offence-specific factors present themselves. The lower end of the band involves cases where the private parts of the victim are intruded, but there is no skin-to-skin contact. The higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts. It would also involve cases where there was the use of deception.

c) Band 3: This includes cases where numerous offence specific factors present themselves, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim.

(emphasis added in bold)



132    Taking into account the full spectrum of sentences that may be imposed for s 354(1) offences, the following sentencing bands of imprisonment were calibrated (at [49] of Kunasekaran):

a)    Band 1: less than five months’ imprisonment

b)    Band 2: five to 15 months’ imprisonment; and

c)    Band 3: 15 to 24 months’ imprisonment

The Prosecution’s Position

133    The Prosecution sought a global sentence of between 21 to 26 months’ imprisonment and at least 4 strokes of the cane,[note: 191] with a sentence of:

(a)     between 1 to 2 months’ imprisonment for each offence that involved smacking/slapping of the complainants’ buttocks, on the basis that these fell within Band 1 of the Kunasekaran framework;[note: 192] and

(b)     between 10 to 12 months’ imprisonment and at least 2 strokes of the cane for each offence that involved twin incursions into the complainants’ vaginas and buttocks, on the basis that these fell within Band 2 of the Kunasekaran framework.[note: 193]

134    The Prosecution highlighted that there were two offence-specific factors (viz. the breach of trust and the emotional harm suffered by the complainants) common to all the charges.[note: 194] It was argued that there were no offender-specific factors that served as mitigation.[note: 195]

The Defence’s Position

135    The Defence’s primary submission was that fines ought to be imposed on the Accused. Reliance was placed on the imposition of a $4000 fine on an unreported case concerning another Trust Yoga instructor who had pleaded guilty to touching a student’s buttocks.[note: 196]

136    In the alternative, Defence Counsel sought a global sentence of no more than 10 to 12 months’ imprisonment without caning[note: 197] on the premise that:

(a)     between 5 to 6 months’ imprisonment was sufficient for each offence that involved an intrusion to the complainants’ buttocks and vagina;[note: 198] and

(b)     between 1 to 2 months’ imprisonment for the offences that involved intrusions solely to the complainants’ buttocks.[note: 199]

137    The following factors, said to be mitigating, were highlighted by the Defence:

(a)     the Accused’s parents were financially dependent on him, and he had been unable to provide them with financial support from the time investigations first began;[note: 200]

(b)     the Accused was law-abiding who had no antecedents;[note: 201] and

(c)     the Accused’s former students had complimented his teaching ability and skills.[note: 202]

138    No less than 21 character references were tendered in support of the latter submission.[note: 203] The general tenor of these references was that the Accused was a fun, helpful and experienced yoga teacher who was highly skilled in performing hands-on adjustments to improve his students’ yoga poses.

The Court’s Decision on Sentence

Common offence-specific factors

139    The following offence-specific factors were common to the offences.

(1)   Abuse of trust

140    Foremost, there was aggravation accruing from the Accused’s abuse of the trust reposed in him by the complainants. Trust is a defining element in every teacher-student relationship. In the present case, this intrinsic trust was expressed in the latitude given to the Accused, in his capacity as a yoga instructor, to freely touch the bodies of his female students to perform legitimate physical adjustments during yoga lessons.

141    The testimonies of the three complainants revealed just how innate and foundational this trust was. Ms C testified that she had regarded yoga classes as “a safe space” and had not expected to have been violated during a yoga class by a teacher[note: 204] who was in a position of “authority in the room”.[note: 205] Ms V testified that she had difficulties processing what had happened to her because she could not accept that she had been touched inappropriately by an instructor whom she believed would be “properly trained and know how to adjust the students appropriately.”[note: 206] Ms R regarded the Accused as an “authority figure” whom she had put “on a pedestal” as she assumed that he knew what he was doing because he was in the “position of a teacher, an instructor, even a guru or master”.[note: 207] It was clear to me that the Accused had acted in gross violation of the trust reposed in him by these women.

(2)   Emotional and psychological harm

142    In my judgment, the enduring emotional and psychological harm to the complainants was another factor that had to be accorded weight in sentencing. Ms C’s palpable shock and distress in the immediate aftermath of the molests was apparent to Mr Arvind who testified that she was in a “state of shock” and “crying uncontrollably”.[note: 208] Testifying that the incidents had affected her “quite a bit”, Ms C gave evidence that she no longer practised yoga and had been receiving therapy from a counsellor.[note: 209] Ms V’s overt distress was patent at various junctures of the trial.[note: 210] She also testified that she remained “very affected” by the sexual assaults to date and described them as “a very traumatic experience”. She too, no longer practised yoga in other studios.[note: 211] Ms R testified that she no longer practised yoga and shared that it took her several months to process the “trauma” with a therapist.[note: 212]

Common offender-specific factors

143    I regarded the fact that the Accused had claimed trial to be a neutral factor. While it was his right to do so, he was not entitled to any sentencing discount that would otherwise have applied had he pleaded guilty.[note: 213] Second, given his serial offending I did not consider the Accused to be a first offender. He had no prior convictions only because the law had yet to catch up with him for his misdeeds: Chen Weixiong Jerriek v Public Prosecutor [2003] SGHC 103 at [15] and [17].

144    Third, I did not find the character references submitted by the Defence, to be a meaningful consideration in sentencing. In my view, the subjective attestations as to the Accused’s integrity and characterisation of him as a gentleman, simply did not comport with the objective facts before the court, which undergirded the convictions.

145    Given the content of many of the testimonials (viz. that physical adjustments are par for course in yoga practice and concomitantly, the intimation that students averse to this have the option of availing themselves of the ‘no adjustment’ card offered by Trust Yoga), it is necessary to set in context what this case is about, and by extension, what it is not about. For the writers of these testimonials to understand the sentence imposed by the court, they must first understand the issues engaged in this case.

146    As I had explained at the time of sentencing, this was not a case about the Accused’s proficiency as a yoga teacher. This was also not a case where physical adjustments made during a yoga class, inadvertently or unintentionally encroached into the complainants’ private parts. Neither was this a case where the complainants were averse to physical adjustments and had misconstrued or misunderstood legitimate adjustments made. Put simply, there was no inadvertent, unintentional or accidental touching of Ms C’s, Ms V’s and Ms R’s private parts. This was a case where the Accused had wilfully slapped his students’ buttocks and touched their vaginas with the intention of outraging their modesty, artfully interspersing these acts between performing other legitimate adjustments during the class.

147    Against this backdrop, while the 21 individuals who had penned testimonials for the Accused, appeared to hold him in some regard, their experience was clearly not shared by the three women involved in this case. In this regard, it bears emphasis that the positive encounters others may have had with the Accused, should not in any way invalidate the experience of the women who were sexually assaulted by him. The existence of positive narratives does not diminish the reality of the contrasting experiences Ms C, Ms V and Ms R have suffered.

148    I would also observe that the testimonials might perhaps have carried some weight if they showed that the Accused’s folly was an isolated, momentary aberration that was wholly out of character. However, such a submission could not stand in this case given the Accused’s conviction on five charges involving three different women. In any event, I was mindful that an offender’s good character is most relevant where rehabilitation is the main sentencing consideration and there is no countervailing need for retribution, deterrence or prevention to feature in the sentence: Tan Sai Tiang v Public Prosecutor [2000] 1 SLR(R) 33; Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2nd Ed, 2019) at para 21.008, cited with approval in Niranjan s/o Muthupalani v Public Prosecutor [2023] SGHC 181 at [78]. In the present case, deterrence remained the dominant sentencing consideration given the serious and serial nature of the offending.

149    Finally, I did not consider the adverse personal consequences, including financial hardship to the Accused’s dependents, to be a relevant mitigating factor. Such collateral consequences, whilst unfortunate, are not relevant to sentencing. Quite simply, a person who breaches the criminal law must expect to face the consequences that follow under the law: Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 at [110] to [111] and M Raveendran v Public Prosecutor [2021] SGHC 254 at [13], [22], [38] and [47].

The appropriate sentence

150    It was against this backdrop, that I considered the appropriate starting point for the individual offences.

(1)   The 8th and 10th Charges

151    The degree of sexual exploitation was high since the acts involved incursions into the complainants’ vaginas which were not particularly fleeting. It would be recalled that Ms C testified that the Accused had groped her, swiping his hand from one butt cheek to her vagina and thereafter to her butt cheek in a smooth joint movement.[note: 214] Ms V testified that the Accused had used his hand to touch her from the centre of her buttocks to her vagina.[note: 215]

152    After a holistic assessment of the factors at the first and second stage of the Kunasekaran framework, I found a sentence of 11 months’ imprisonment warranted for each of these offences. In addition, I also imposed 2 strokes of the cane for each of these charges to adequately reflect the need for deterrence and retribution. This accorded with the practice that caning ought to be imposed where a victim’s private parts and sexual organs are intruded upon: Public Prosecutor v Chow Yee Sze [2011] 1 SLR 481 at [9]; cited with approval in GBR v Public Prosecutor [2017] SGHC 296 at [31] and Kunasekaran at [50]. The sentence for the 8th and 10th Charges was thus 11 months’ imprisonment and 2 strokes of the cane, each.

153    To be clear, I was not aided by the precedents cited by the Defence in support of its submission that a sentence of 5 to 6 months’ imprisonment without caning, was appropriate.[note: 216] No two cases are ever alike and the value of a sentencing precedent in determining the sentence to be imposed in a subsequent case is ultimately dependent on the degree of factual similarity between the cases. Bare references to outcomes in precedent cases without consideration of the reasoning leading to outcomes is an unproductive exercise: Toh Suat Leng Jennifer v Public Prosecutor [2022] SGHC 146 at [34] (“Jennifer Toh”).

154    As I had highlighted at the hearing on 15 July 2024, the Defence’s bare reliance on the sentences imposed in five other cases of outrage of modesty, without any attempt to distil the principles which it thought relevant to sentencing in the present case, was unhelpful.[note: 217] Ultimately, the factual dissimilarity of these cases meant that they did not serve as a useful reference point for sentencing in this case.[note: 218]

(2)   The 1st, 7th and 9th Charges

155    These offences involved the Accused smacking/slapping the buttocks of Ms C, Ms V and Ms R, and fell under Band 1 of the Kunasekaran framework. In my view, while the degree of sexual exploitation was not the most egregious, the offence-specific factors canvassed above, certainly rendered the custodial threshold crossed and warranted an imprisonment term of 1 month for each of these offences.

156    For completeness, I found no merit in the Accused’s submission for a fine. I did not regard the precedent cited to me to be a useful comparator, even though it concerned a yoga instructor from the same yoga studio who had pleaded guilty to slapping his student’s buttocks during a yoga class. Foremost, it is an established principle of law that sentencing precedents without grounds or explanations are of little, if any, precedential value because they are unreasoned and it will thus not be possible discern what had weighed on the mind of the sentencing judge: Keeping Mark John v Public Prosecutor [2017] SGHC 170 at [18] and Jennifer Toh at [51], citing Abdul Mutalib bin Aziman v Public Prosecutor and other appeals [2021] 4 SLR 1220 at [99].

157    Second, a key distinguishing factor was the fact that the offender in the case cited had faced a single charge of molest to which he had pleaded guilty. There was thus clear remorse demonstrated by the offender. The same could not be said of the Accused. For these reasons, I placed no weight on the precedent cited by the Defence.

The aggregate sentence

158    The next stage of the sentencing analysis required me to determine how the individual sentences ought to run. This necessitated consideration of whether the offences were unrelated. This was determined by considering whether they involved a single invasion of the same legally protected interest. As a general rule, sentences for unrelated offences should run consecutively, while sentence for offences that form part of a single transaction should run concurrently, subject to the requirement in s 307(1) Criminal Procedure 2010: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [98(b)].

159    In the present case, I found it necessary to order the sentences for the 1st, 8th and 10th Charges to run consecutively. Each of these charges pertained to a different victim and were thus plainly unrelated and not part of a single transaction. This resulted in an aggregate sentence of 23 months’ imprisonment and 4 strokes of the cane.

160    The final stage of the sentencing analysis required me to apply the totality principle and take a “last look” at all the facts and circumstances to ensure that the aggregate sentence was sufficient and proportionate to the Accused’s overall criminality. There are two limbs to the totality principle. First, the court should examine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed. Second, the court should examine whether the effect of the sentence on the offender is crushing and not in keeping with his past record and future prospects: Raveen at [98(c)] and Public Prosecutor v Loh Cheok San [2023] SGHC 190 at [47].

161    In my judgment, no moderation of the sentence was warranted as the aggregate sentence imposed was proportionate to the criminality before me, viz. the Accused’s serial offending which he continues to deny.

Conclusion

162    Sexual violence in all its forms, disregards personal autonomy and deeply violates the core values of respect, equality and protection for all, that bind us as a society. A strong response from the courts is imperative to signal a collective commitment to a society where such violence has no place. The sentence imposed on the Accused, seeks to achieve this.

163    Despite filing an appeal against his conviction and the sentence imposed, the Accused began serving his sentence on 1 October 2024.

164    Two remaining charges which pertain to a fifth complainant,[note: 219] have yet to be dealt with and have been stood down pending the outcome of this appeal.

[note: 1]Parties agreed that the eight charges, viz. MAC-910838-2021 and MAC-910841-2021 to MAC-910847-2021, would be jointly tried pursuant to s 133 of the Criminal Procedure Code 2010 (“CPC”) as the offences were of a “similar character”. See Notes of Evidence (“NE”) 7 March 2023, 2/2-22.

[note: 2]The application for a joint trial did not extend to two further charges which pertained to a fifth complainant (MAC-910839-2021 and MAC-910840-2021). On the Prosecution’s application, these two charges were stood down and will be tried separately, pursuant to the general rule in s 132(1) of the CPC.

[note: 3]Tab A of the Agreed Statement of Facts (“ASOF”)

[note: 4]Tab H, ASOF – Trust Yoga’s record of Ms C’s class attendance

[note: 5]Tab B, ASOF at [18] to [23]

[note: 6]Tab B, ASOF at [24] to [31]

[note: 7]Tab M, ASOF

[note: 8]Tab N, ASOF

[note: 9]Tab O, ASOF

[note: 10]Exhibit P2 comprises recordings of Ms C’s phone conversations with Mr Arvind. Tab P, ASOF comprises a transcript of these conversations.

[note: 11]Exhibit P3 comprises a recording of the conversation that took place during this meeting. Tab Q, ASOF is a transcript of this conversation.

[note: 12]Tab R, ASOF

[note: 13]Tab B, ASOF at [3] to [6]

[note: 14]Tab S, ASOF. Pgs.1 and 2 pertain to Ms R’s communication with Ms C. Pgs. 3 to 31 pertain to Ms Y’s communication with Ms C.

[note: 15]Tab C, ASOF

[note: 16]ASOF at [17]

[note: 17]Tab T-1, ASOF

[note: 18]Tab K, ASOF – Trust Yoga’s record of Ms R’s class attendance

[note: 19]Tab J, ASOF – Trust Yoga’s record of Ms Y’s personal training and group class attendance

[note: 20]Tab U, ASOF

[note: 21]ASOF at [23]

[note: 22]Tab E, ASOF

[note: 23]Tab I, ASOF - Trust Yoga’s record of Ms V’s class attendance

[note: 24] Tab L1, ASOF

[note: 25] Tab L2, ASOF

[note: 26] Tab L3, ASOF

[note: 27] Tab L4, ASOF

[note: 28] Tab L5, ASOF

[note: 29]Prosecution’s Closing Submissions (“PCS”) at [32] to [37]

[note: 30]PCS at [34]

[note: 31]PCS at [38] to [40]

[note: 32]PCS at [126] to [130]

[note: 33]PCS at [122] to [125]

[note: 34]PCS at [131]

[note: 35]ASOF at [8] to [9]

[note: 36]NE 4 July 2023, 19/28-29

[note: 37]NE 3 July 2023, 37/9-21

[note: 38]NE 3 July 2023, 51/8-15

[note: 39]NE 4 July 2023, 32/11-14

[note: 40]NE 4 July 2023, 20/2-4 and NE 4 September 2023, 15/4-13

[note: 41]NE 4 September 2023, 11/19-29

[note: 42]NE 4 September 2023, 8/8-12

[note: 43]NE 4 September 2023, 11/30 – 12/1

[note: 44]NE 4 July 2023, 27/12 – 30/7

[note: 45]NE 4 July 2023, 56/31 – 57/5

[note: 46]NE 3 July 2023, 31/2-25

[note: 47]NE 3 July 2023, 31/26 – 32/26

[note: 48]NE 3 July 2023, 33/12 – 34/19

[note: 49]NE 3 July 2023, 24/20 – 35/8

[note: 50]NE 3 July 2023, 35/14 – 36/16

[note: 51]Defence’s Closing Submissions (“DCS”) at [27] to [30] and NE 14 March 2024, 11/18 – 12/32

[note: 52]DCS at [25]

[note: 53]DCS at [9]

[note: 54]DCS at [20], [21], [25]

[note: 55]DCS at [33] to [39]

[note: 56]Defence’s Reply Submissions (“DRS”) at [60] to [63]

[note: 57]DCS at [40] to [46]

[note: 58]DCS at [47] to [51]

[note: 59]DCS at [52] to [54]

[note: 60]DCS at [62]

[note: 61]DCS at [57] and [60]

[note: 62]PCS at [31] and NE 14 March 2024, 13/11-32

[note: 63]NE 14 March 2024, 34/1-4

[note: 64]The precondition for a joint trial under s 133 of the CPC.

[note: 65]NE 4 July 2023, 57/28, 58/5-23, 71/1-28

[note: 66]NE 7 March 2023, 18/1-8, 19/4-11

[note: 67]NE 7 March 2023, 19/12-17

[note: 68]NE 7 March 2023, 21/26 – 22/8

[note: 69] NE 7 March 2023, 22/14-31

[note: 70] NE 7 March 2023, 93/5-20

[note: 71]NE 7 March 2023, 82/1-6

[note: 72]Tab B, ASOF at [19]

[note: 73]Tab B, ASOF at [20]

[note: 74]Tab B, ASOF at [22] and [23]

[note: 75]Tab B, ASOF at [27] to [29]

[note: 76]Tab B, ASOF at [31] to [32]

[note: 77]DCS at [67] and DRS at [60] to [63]

[note: 78]The rule in Browne v Dunn (1893) 6 R 67, was restated in Harven a/l Segar v Public Prosecutor [2017] 1 SLR 771, citing Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [48]

[note: 79]Tab B, ASOF at [6]

[note: 80]NE 7 March 2023, 50/16-29

[note: 81]NE 7 March 2023, 50/4-7

[note: 82]Tab B, ASOF at [5] and NE 7 March 2023, 56/4-7

[note: 83]NE 7 March 2023, 51/14-21

[note: 84]NE 7 March 2023, 50/9-10

[note: 85]Tab R, ASOF at pg. 1

[note: 86]NE 7 March 2023, 18/15-31

[note: 87] NE 7 March 2023, 19/26-29, 21/21-25

[note: 88] NE 7 March 2023, 90/4-9

[note: 89] NE 8 March 2023, 20/18-29

[note: 90]DCS at [36] to [37]

[note: 91]DCS at [33(c)] and [35]

[note: 92]NE 7 March 2023, 76/18 – 77/2

[note: 93]NE 7 March 2023, 75/15-29

[note: 94]NE 7 March 2023, 66/3-8, 77/3-25, 78/11-14

[note: 95]NE 7 March 2023, 90/24-8

[note: 96]Tab B, ASOF at [32]

[note: 97]NE 8 March 2023, 45/31 – 46/18, 53/21-32

[note: 98]NE 7 March 2023, 13/23-24, 14/1-2 read with NE 8 March 2023, 50/5-6. In the course of his testimony, the Accused himself stated that “the CCTV is very fast” – NE 4 July 2023, 25/13

[note: 99]NE 8 March 2020, 53/13-15, 55/4-12

[note: 100]NE 4 July 2023, 43/26 – 44/17

[note: 101]NE 7 March 2023, 22/18-22 and 92/15-20

[note: 102]NE 7 March 2023, 22/20-21

[note: 103]NE 7 March 2023, 24/8-12

[note: 104]Tab M, ASOF at pg.1 messages four and five

[note: 105]NE 7 March 2023, 24/1-6

[note: 106]Tab M, ASOF at pgs. 2 to 3

[note: 107]Tab N, ASOF

[note: 108]NE 7 March 2023, 96/27-31

[note: 109]NE 8 March 2023, 31/15-24

[note: 110]Tab Q, ASOF at pgs. 1 and 2

[note: 111]NE 8 March 2023, 31/25-27

[note: 112]NE 5 September 2023, 25/11-17

[note: 113]NE 5 September 2023, 26/6-15

[note: 114]NE 4 September 2023, 46/3-4

[note: 115]NE 8 March 2023, 25/10-25

[note: 116]NE 4 September 2023, 28/10-14 and 46/5-7

[note: 117]Exhibit P6 at [11]

[note: 118]NE 4 September 2023, 21/3-9

[note: 119]NE 4 September 2023, 26/29-32

[note: 120]NE 4 September 2023, 33/14-20

[note: 121]NE 4 September 2023, 34/23-25

[note: 122]NE 4 September 2023, 34/4-9

[note: 123]NE 4 September 2023, 25/19-24

[note: 124]NE 8 September 2023, 6/22 – 7/8

[note: 125]NE 5 September 2023, 69/9 – 71/6

[note: 126]MAC-910838-2021

[note: 127]Tab K, ASOF

[note: 128]NE 27 June 2023, 7/3-28, 8/29 – 9/2, 40/1-10

[note: 129]NE 27 June 2023, 6/18-29 and 42/9-17, 43/8-13

[note: 130]NE 27 June 2023, 10/26-28

[note: 131]NE 27 June 2023, 46/18-19

[note: 132]NE 27 June 2023, 11/4-8

[note: 133] NE 27 June 2023, 11/9-19

[note: 134] NE 27 June 2023, 48/22 – 49/3

[note: 135]DCS at [53] to [54]

[note: 136]NE 27 June 2023, 13/24-28

[note: 137]NE 27 June 2023, 16/14 – 17/3

[note: 138] Tab X, ASOF at pgs. 9 and 10

[note: 139]NE 27 June 2023, 19/11-19

[note: 140]NE 27 June 2023, 17/12-22

[note: 141]NE 27 June 2023, 19/27 – 20/4

[note: 142]NE 27 June 2023, 18/11-21

[note: 143]NE 27 June 2023, 18/26 – 19/9

[note: 144]NE 27 June 2023, 19/15-22, 20/18-19

[note: 145]NE 27 June 2023, 48/18-20

[note: 146]NE 27 June 2023, 18/31 – 19/3

[note: 147]NE 27 June 2023, 56/20-24

[note: 148]NE 27 June 2023, 21/14 – 22/2

[note: 149]NE 27 June 2023, 66/9-18 and 23/3-6

[note: 150]NE 27 June 2023, 21/4-5

[note: 151]NE 27 June 2023, 15/4-7

[note: 152]NE 27 June 2023, 21/4-10

[note: 153]NE 27 June 2023, 42/4-5

[note: 154]Ms R read about Ms C’s account at about 1 a.m. on 5 August 2020. She lodged her police report online at 8.52 a.m. that same morning.

[note: 155] NE 27 June 2023, 66/23030

[note: 156] NE 27 June 2023, 68/16-21

[note: 157]NE 27 June 2023, 12/8-10 and 27/10-20

[note: 158]NE 27 June 2023 (Day 5), 42/4-5

[note: 159]NE 27 June 2023 (Day 5), 38/25-28

[note: 160]NE 27 June 2023, 38/25 – 39/5

[note: 161]Tab C, ASOF pg. 2 line 4

[note: 162]NE 27 June 2023, 30/13 – 32/8 and Tab X, of ASOF at pg. 13 read with NE 27 June 2023, 38/18-27 and 44/26 – 45/4. See also the evidence of (DW4) Yee Boon Lee NE 7 September 2023, 6/21-24

[note: 163]NE 27 June 2023, 44/26 – 45/4

[note: 164]NE 27 June 2023, 50/10-23

[note: 165]MAC-910844-2021 and MAC-910845-2021 respectively

[note: 166]NE 9 March 2023, 2/13/18, 7/6-25,8/19-29 and 41/10-12

[note: 167]NE 9 March 2023, 3/21 – 4/20 and 32/4-10

[note: 168]NE 9 March 2023, 49/22-24

[note: 169]NE 9 March 2023, 9/23-29, 34/3-8

[note: 170]NE 14 March 2204, 21/30 – 22/1-5

[note: 171]NE 9 March 2023, 35/20-27

[note: 172]NE 9 March 2023, 5/3 – 6/10

[note: 173]NE 9 March 2023, 9/30 – 10/10, 16/19-24 and 52/7-15

[note: 174]NE 9 March 2023, 39/13-25

[note: 175]NE 9 March 2023, 21/10-24, 33/20-21, 39/26-30, and 46/16-18

[note: 176]NE 9 March 2023, 18/23-31

[note: 177]NE 9 March 2023, 18/16-22, 19/14-16 and 510/28 – 51/8

[note: 178]Ms V explained that she regarded the Forward Bend Pose to be an inversion as the body would not be upright and the head would be below the heart – NE 9 March 2023, 31/1-23

[note: 179]NE 9 March 2023, 11/10-16

[note: 180]NE 9 March 2023, 11/17-21

[note: 181]Tab U, ASOF at pg. 1

[note: 182]NE 9 March 2023, 13/21 – 14/20

[note: 183]NE 9 March 2023, 15/3-8

[note: 184]NE 9 March 2023, 15/17 – 16/2

[note: 185]NE 9 March 2023, 12/1-9 and 16/25-28

[note: 186]NE 4 September 2023, 54/1-7

[note: 187]NE 9 March 2023, 47/4-6 and 27 June 2023, 67/8-10

[note: 188]NE 4 September 2023, 64/28 – 66/11

[note: 189]MACs 910841 to 910843 of 2021

[note: 190]PCS at [92] to [95]

[note: 191]Prosecution’s Address on Sentence (“AOS”) at pg. 1

[note: 192][16] to [19], AOS

[note: 193][13] to [15], AOS

[note: 194][7] to [10], AOS

[note: 195][11] and [12], AOS

[note: 196]Mitigation Plea (“MP”) at [3(a)]

[note: 197]NE 15 July 2024, 8/28-30

[note: 198][3(b)], MP

[note: 199]NE 15 July 2024, 9/15-22 and 11/20-32

[note: 200][14] and [24], MP

[note: 201][25], MP

[note: 202][26], MP

[note: 203]Tab D, MP

[note: 204]NE 7 March 2023, 22/25-30

[note: 205]NE 7 March 2023, 93/17

[note: 206]NE 9 March 2023, 10/3-10, 21/19-20, 39/24-25, 52/11-15

[note: 207]NE 27 June 2023, 15/17-22

[note: 208]NE 8 March 2023, 30/16, 21-23, 31/27

[note: 209]NE 7 March 2023, 45/29 – 46/7

[note: 210]NE 9 March 2023, 5/25-31

[note: 211]NE 9 March 2023, 17/5-8

[note: 212]NE 27 June 2023, 34/3-13

[note: 213]Kunasekaran at [66]

[note: 214]NE7 March 2023, 21/30 – 22/13

[note: 215]NE 9 March 2023, 5/17-26

[note: 216][9], MP

[note: 217]NE 15 July 2024, 8/7-15

[note: 218]In relation to Public Prosecutor v Helmi bin Norman [2022] SGMC 31, see NE 15 July 2024, 12/8-11. In relation to Public Prosecutor v Ong Jun Yong [2024] SGMC 6, Public Prosecutor v Adaikkalam Sivagnanam [2018] SGMC 43, PP v Soh Guan Hup [2023] SGMC 33 and Ng Kum Weng v PP [2021] SGHC 100, see NE 15 July 2024, 12/13-22 and 12/28 – 13/15

[note: 219]MAC-910839-2021 and MAC-910840-2021

"},{"tags":["Landlord And Tenant – Covenants – Landlord’s right of entry","Landlord And Tenant – Covenants – Quiet enjoyment","Landlord And Tenant – Covenants – Repair","Landlord And Tenant – Termination of leases"],"date":"2024-08-30","court":"District Court","case-number":"District Court Originating Claim No. 897 of 2022","title":"Son Jung Wook v Cheong Kian Hock Randall and another","citation":"[2024] SGDC 222","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32469-SSP.xml","counsel":["Yap Bock Heng Christopher (Alpha Law LLC) for the claimant","Oei Ai Hoea Anna (Tan Oei & Oei LLC) (instructed), Sng Kheng Huat (Sng & Co.) for the defendants."],"timestamp":"2024-11-20T16:00:00Z[GMT]","coram":"Sim Mei Ling","html":"Son Jung Wook v Cheong Kian Hock Randall and another

Son Jung Wook v Cheong Kian Hock Randall and another
[2024] SGDC 222

Case Number:District Court Originating Claim No. 897 of 2022
Decision Date:30 August 2024
Tribunal/Court:District Court
Coram: Sim Mei Ling
Counsel Name(s): Yap Bock Heng Christopher (Alpha Law LLC) for the claimant; Oei Ai Hoea Anna (Tan Oei & Oei LLC) (instructed), Sng Kheng Huat (Sng & Co.) for the defendants.
Parties: Son Jung Wook — Cheong Kian Hock Randall — Ang Swee Ghee

Landlord And Tenant – Covenants – Landlord’s right of entry

Landlord And Tenant – Covenants – Quiet enjoyment

Landlord And Tenant – Covenants – Repair

Landlord And Tenant – Termination of leases

30 August 2024

Judgment reserved.

District Judge Sim Mei Ling:

Background

1       The claimant leased the premises at 54 Lakeside Drive [unit number redacted] Caspian, Singapore 648317 (the “Premises”) from the defendants. A total of 3 tenancy agreements were signed:

(a)     The 1st tenancy agreement dated 8 January 2018 for the period 3 February 2018 to 2 March 2020 (the “1st TA”);

(b)     The 2nd tenancy agreement dated 4 January 2020 for the period 3 March 2020 to 2 April 2022 (the “2nd TA”); and

(c)     The 3rd tenancy agreement dated 15 December 2021 for the period 3 April 2022 to 2 May 2024 (the “3rd TA”).

2       The claimant’s complaints relate to events during the 3rd TA. The claimant handed the Premises over to the defendants on 2 September 2022.

The claim

3       The claimant asserted that the defendants breached clause 3(c) of the 3rd TA, the covenant for quiet enjoyment, by committing several acts to harass the claimant, with the intention of forcing the claimant to terminate the 3rd TA so that the defendants could rent out the Premises at a higher rent.

4       The claimant asserted that this amounted to a repudiation of the 3rd TA, which he accepted by his solicitors’ letter dated 23 August 2022.

5       The claimant pleaded in the alternative, that the claimant and the defendants agreed to terminate the 3rd TA and for the claimant to find a replacement tenant.

6       The claimant sought damages for the defendants’ alleged repudiation of the 3rd TA. He also claimed damages for harassment or for breach of his right to quiet enjoyment of the Premises, a return of alleged overpayment of $1,444.50 for air conditioning servicing, and his security deposit of $7,800 (less costs for repairing a damaged hinge).

7       The claimant subsequently withdrew his claim for damages for harassment.[note: 1]

The defence and counterclaim

8       The defendants denied committing the alleged acts or that these amounted to repudiatory breaches of the 3rd TA. Further, there could not have been acceptance of the alleged repudiation on 23 August 2022 as parties entered into a settlement agreement on 16 August 2022 to terminate the 3rd TA with 2 months’ notice. The claimant’s alleged losses were expenses which the claimant had to incur in any event because he agreed to an early termination of the 3rd TA.

9       The defendants said that the claimant breached the settlement agreement by vacating the Premises on 2 September 2022 before the expiry of the 2 months’ notice. The defendants also allegedly incurred costs in rectifying the defects discovered at the handover of the Premises.

10     The defendants therefore counterclaimed for rectification costs, one and a half months’ rent in lieu of notice, and commission which they had to pay for an agent to find a replacement tenant, less the security deposit.

11     The defendants subsequently conceded that there was no evidence to support their claim for commission.[note: 2] They therefore dropped this part of their claim.

Issues for determination

12     The following issues arise for determination:

(a)     In relation to the alleged repudiation of the 3rd TA:

(i)       Did the defendants commit the alleged acts?

(ii)       Do the alleged acts amount to a repudiation of the 3rd TA?

(iii)       Was there an agreement reached on 16 August 2022, and if so, what is its effect?

(iv)       What damages is the claimant entitled to, if any?

(b)     Is the claimant entitled to recover the alleged overpayment for air conditioning servicing?

(c)     Are the defendants entitled to set off the alleged costs of repairs and one and a half months’ rent in lieu of notice against the security deposit?

The alleged repudiation of the 3rd TA

Did the defendants commit the alleged acts

13     The claimant asserted that the 1st defendant committed various acts amounting to a breach of the covenant for quiet enjoyment. These are as follows[note: 3]:

(a)     Sometime in June 2022, the 1st defendant started to make a false allegation that the claimant breached clause 2(q) of the 3rd TA on servicing of the air conditioning.

(b)     The 1st defendant sent numerous emails and WhatsApp texts to the claimant and/or his wife on the false allegation. Even though the claimant appointed Ms Sophia Bay (“Ms Bay”), a salesperson from Propnext Realty Pte Ltd, to liaise with the 1st defendant, the 1st defendant refused to liaise with her and continued to liaise with the claimant.

(c)     The 1st defendant lied to Ms Bay that he would not come to the Premises on 12 August 2022 but turned up with his air conditioning contractor from City Cooling Pte Ltd (“City Cooling”), when the claimant was not home.

(d)     The claimant’s wife was put in fear as the 1st defendant was behaving aggressively. She had no choice but to let the 1st defendant into the Premises, while the claimant had to leave work abruptly and rush back home to deal with the situation.

(e)     Whilst inside the Premises, the 1st defendant brazenly and without authority, walked around the Premises freely, invading the privacy and sanctity of the claimant’s home.

(f)     During the inspection, the 1st defendant demanded that the claimant repaint a wall which had minor discolouration and repair a damaged hinge of a glass door in the toilet with a similar hinge from Germany, which demands were without basis under the 3rd TA.

(g)     The 1st defendant erroneously invoked clause 2(x) of the 3rd TA and demanded that his next inspection be held on 10 September 2022.

(h)     The claimant was asked to pay an invoice from City Cooling dated 12 August 2022 amounting to $1,444.50, which he did as he was intimidated by the 1st defendant’s aggressiveness or under a mistake of fact that he was liable to pay.

(i)     The 1st defendant demanded a variation of the 3rd TA by giving the claimant 2 options to choose from, with the intention of increasing the monthly rent.

14     I will deal with each of the alleged conduct in turn.

Did the 1st defendant make a false allegation in June 2022 that the claimant breached clause 2(q) of the 3rd TA on servicing of the air conditioning?

15     Clause 2(q) of the 3rd TA provides:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(q)    To keep the air conditioning units installed at and for the said Premises in good and tenantable repair and condition. The Tenant is required to take up an air-con service contract (defined cost and time period) with a professionally competent, qualified & reliable air-conditioning contractor to service and maintain the multi-system air-conditioning units at the said Premises at least once every (03) calendar months (4 times per calendar year) at the expense of the Tenant…Such air con servicing contract of air-con job could be arranged and appointed by the Landlord. The Landlord shall not be responsible for repairs, replacement, maintenance or servicing of the air-conditioning units or parts if the Tenant failed to fulfill herein obligation or failed to show and submit proof of regular service report and service contract or due to the willful act or negligence of the tenant. Under such circumstances, the Landlord shall be at liberty to recover such remedies from the security deposit held by the Landlord and subject to paragraph or clause 2(g) the Tenant shall continue to be fully responsible for repair, replace, maintenance & service of the air-conditioning unit or parts. Any additional cost that the Landlord had to, or will have to, incur as a result of the Tenants’ action, the Landlord reserves the right to demand further compensation or reimbursement from the Tenant. Service contract and service report/s shall be forwarded to the Landlord for record purposes when demanded by the Landlord during and beyond the currency of the Tenancy Agreement. Landlord reserves the right and prerogative to engage a professional air-con contractor to check on the air-con system at the end of each renewal lease or should any of the receipt/s is misplaced or any missed air-con servicing, all fees shall be borne by the Tenant.

[Emphasis in original.]

16     Clauses 2(q) of the 1st and 2nd TAs also contain the claimant’s obligation to keep the air conditioning in good and tenantable repair and condition. There are some wording differences.

17     Essentially however, the claimant remained obliged throughout the 3 tenancy agreements, to:

(a)     Keep the air conditioning installed at and for the said Premises in good and tenantable repair and condition;

(b)     Take up an air conditioning service contract with a professionally competent, qualified and reliable air conditioning contractor to service and maintain the multi-system air conditioning at the said Premises at least once every (03) calendar months (4 times per calendar year) at his expense; and

(c)     Forward the service contract and service reports to the defendants for record purposes.

18     The claimant pleaded that the allegation of breach of the 3rd TA was false because he only failed to service the air conditioning once during the 2nd TA. The obligation to service the air conditioning quarterly arose from commencement of the relevant tenancy agreement.[note: 4] As the 3rd TA commenced on 3 April 2022, the first quarterly servicing under the 3rd TA was thus not yet due as of June 2022.

19     The defendants on the other hand take the position that the 3-months’ cycle for servicing should be computed from the date of last servicing (regardless of whether it took place under an earlier tenancy agreement)[note: 5]. They therefore maintained that the claimant failed to carry out quarterly air conditioning servicing in breach of clause 2(q) of the 3rd TA.[note: 6] The defendants only discovered this when the claimant provided the servicing reports/ contracts in June 2022.

20     I accept the defendants’ interpretation, that the 3-months’ cycle should be computed from the last servicing and not only from the start of the 3rd TA:

(a)     Clause 2(q) does not specify how to compute the 3-months’ cycle, save that there should be a minimum of 4 servicing sessions per calendar year.

(b)     Even though there were 3 separate TAs signed, the 2nd TA for the period 3 March 2020 to 2 April 2022 was signed as early as 4 January 2020. Similarly, the 3rd TA for the period 3 April 2022 to 2 May 2024 was signed as early as 15 December 2021. In other words, parties intended for a seamless continuation of the tenancy without any breaks in between.

(c)     By the claimant’s interpretation, the first servicing under the 2nd TA would only be due in June 2020[note: 7]. However, the last servicing under the 1st TA would have fallen due in February 2020.[note: 8] This would result in a servicing gap of 4 months.

(d)     Similarly, by the claimant’s interpretation, the first servicing under the 3rd TA would only be due in July 2022.[note: 9] However, the last servicing under the 2nd TA would have been due in March 2022. This again would result in a servicing gap of 4 months.

(e)     The result of applying the claimant’s interpretation is that for the year 2022, there would only be 3 servicing sessions[note: 10]. This would go against clause 2(q) which requires a minimum of 4 servicing sessions per calendar year.

(f)     If the obligation to service the air conditioning does not arise until 3 months into the 3rd TA, it begs the question why the claimant arranged for a servicing to be conducted in May 2022.[note: 11]

21     The claimant was therefore required to conduct air conditioning servicing in the months of February, May, August and November of each year.

22     The evidence supports the 1st defendant’s assertion that the service orders were only provided in June 2022.[note: 12] This is evident from how the 1st defendant had to make repeated requests for the servicing contract and job sheets / reports. [note: 13] There is nothing before the Court to indicate that the claimant actually provided them earlier.

23     The claimant’s “Service Order Invoice (Tax Invoice)”s[note: 14] show that for the period February 2020 to May 2022, servicing was only done in February, June, September and December 2020, March, July and October 2021, and January and May 2022 (9 sessions). For the period February 2020 to June 2022, there should have been 10 servicing sessions[note: 15].

24     Hence by a 15 June 2022 email, the defendants informed the claimant of a shortfall of 1 quarterly servicing of the air conditioning for the period February 2020 to May 2022.[note: 16] On 15 June 2022, the claimant via his email apologised for the delay and proposed to complete 9 servicing sessions by 2 May 2024. [note: 17] By a further email on 15 June 2022, the 1st defendant requested that the claimant make up the shortfall by arranging a further servicing by 1 July 2022.[note: 18]

25     I agree that the shortfall of 1 servicing session relates to the period under the 2nd TA. This by itself, is not a breach of the 3rd TA. Each of the TAs are separate agreements. While the 2nd and 3rd TAs refer to the defendants granting the claimant a tenancy of the Premises for a “further term”[note: 19], there is nothing to suggest that the obligations under the 1st and 2nd TAs were “carried over”, such that a breach of the 1st and/or 2nd TAs would also amount to a breach of the 3rd TA.

26     That said, the claimant breached quarterly servicing obligations that had already accrued during the 2nd TA. The 1st defendant was thus entitled, notwithstanding the 2nd TA’s expiry, to take issue with the claimant’s breach. Additionally, clause 4(j) of the TAs state that the waiver by either party of a breach shall not be construed as a waiver of any succeeding breach, and any delay or omission to exercise any right which a party may have will not operate as a waiver of a breach or default of the other party.

Did the 1st defendant send numerous emails and WhatsApp texts to the claimant and/or his wife on the false allegation and refuse to liaise with Ms Bay?

27     The claimant pleaded that the 1st defendant sent numerous emails and WhatsApp texts falsely alleging that he breached clause 2(q) of the 3rd TA. The 1st defendant also refused to liaise with Ms Bay, whom the claimant appointed to liaise with the 1st defendant.[note: 20]

28     The defendants pleaded that they had to send these because the claimant was not responsive to their requests for air conditioning servicing reports.[note: 21] The defendants denied that they are contractually obliged to liaise with Ms Bay, and further, the claimant did not notify the defendants of her appointment.[note: 22]

29     In his affidavit of evidence-in-chief (“AEIC”), the claimant identified the specific emails from the 1st defendant which allegedly contained demands without legal basis[note: 23]:

(a)     An email of 15 June 2022 demanding that the claimant submit all air conditioning service orders prior to February 2020[note: 24];

(b)     An email of 15 June 2022 stating that the defendants would appoint their own air conditioning service contractor[note: 25];

(c)     An email of 20 August 2022 demanding the claimant immediately repair door hinges and paint a wall[note: 26]; and

(d)     An email on 23 August 2022 on entering the Premises for inspection[note: 27].

30     I find that the 1st defendant was entitled to make these demands.

31     First, the 1st defendant was entitled to ask the claimant to submit all air conditioning service orders prior to February 2020.

32     The claimant argued that this was without basis because they were for the period prior to the 3rd TA[note: 28]. The claimant further contended that first 3-months’ cycle should be counted from the start of the 3rd TA and thus servicing was not yet due on 7 June 2022[note: 29]. In any event, the defendants did receive service reports from the claimant.[note: 30]

33     However, the obligation to forward the air conditioning service contract and service reports had already accrued under the 1st and 2nd TAs prior to their expiry. The defendants were therefore entitled to ask for these (insofar as they had not been provided), notwithstanding the expiry of the 1st and/or 2nd TA. The service orders were only provided in June 2022 (see [22] above).

34     Secondly, the defendants were entitled to appoint their own air conditioning contractor.

35     Clause 2(q) of the 3rd TA provides that the air conditioning servicing contract could be arranged and appointed by the defendants. There is no evidence that the claimant had taken up an air conditioning servicing contract for the 3rd TA. [note: 31] The last recorded servicing took place on 4 May 2022, and the relevant service order stated that this was the 4th servicing in a cycle which commenced on 21 July 2021.[note: 32] The claimant’s counsel conceded that the claimant did not have a document called air conditioning service contract.[note: 33]

36     That the claimant may have been using one Wonbong Waterpia Pte Ltd without any objections from the defendants[note: 34] does not assist him. The 3rd TA clearly states that the claimant must take up an “air-con service contract (defined cost and time period)”. The 3rd TA also states what services it should include, and requires the claimant to submit the contract to the defendants for record purposes. Clause 4(j) of the 3rd TA provides that any delay or omission to exercise a right will not amount to a waiver of any breach.

37     Thirdly, the 1st defendant was entitled to demand that the claimant repair the broken door hinges and paint over the discolouration on the wall. This is pursuant to clauses 2(d) and 2(x) of the 3rd TA, which state:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(d)    It is the Tenant’s obligation and full responsibility (at the Tenant’s costs and expenses) to keep the interior of the said Premises (including the sanitary and water apparatus, and the Furniture including all doors and doorframes, windows and window-frames, window handlers [sic] and shower door hinges) thereof all in good and tenantable condition throughout this tenancy (fair wear and tear excepted) and to repair or replace the same with new ones of comparable quality if spoiled, damaged, lost or broken and to yield up the same in good order and tenantable condition at the lawful termination of this tenancy in accordance with its covenants stated in this agreement…

(x)    To permit the Landlord and the Landlord’s agents, surveyors, workmen and prospective buyer/tenants with all necessary appliances to enter upon the said Premises at all reasonable times by prior appointment (excepted in the case of emergency) for the purpose whether of viewing the condition thereof or of doing such works and things as may be required for any repairs, alterations or improvements whether of the said Premises or of any parts of any building to which the said Premises may form a part of or adjoin. To forthwith comply with any notice that may be given by the Landlord requiring any breach of any of the obligations on the part of the Tenant under this Agreement to be made good provided that if the Tenant shall fail to remedy such breach of obligation within a reasonable time it shall be lawful for the Landlord or its agent with or without workmen and others (but without prejudice to the right of re-entry herein contained) by prior appointment at reasonable times to enter the said Premises and execute the necessary repairs and maintenance.

[Emphasis in original.]

38     What the claimant in fact takes issue with is how the inspection was conducted without his agent present[note: 35]. For the reasons which I will come to later, I find no issue with how the inspection came about or was conducted.

39     Fourthly, the 1st defendant was entitled to request a further inspection to view the condition of the Premises or doing such works as may be required, pursuant to clause 2(x) of the 3rd TA.

40     Lastly, was it wrong for the 1st defendant to continue communicating with the claimant directly after 10 August 2022[note: 36]?

41     In my view, the answer is no. The claimant did not give the 1st defendant prior notice of Ms Bay’s appointment. Instead, it was Ms Bay who messaged the 1st defendant on 10 August 2022 stating that she would be handling the claimant’s leasing matters.[note: 37] The 1st defendant then asked the claimant to confirm that Ms Bay was his agent.[note: 38] The claimant does not appear to have responded to this message.

42     In any event, it is not true that the 1st defendant refused to liaise with Ms Bay. In evidence are numerous WhatsApp messages between them on the 3rd TA. The 1st defendant even liaised with Ms Bay on the handover of the Premises on 2 September 2022.[note: 39] At the same time, there is nothing objectionable in the 1st defendant’s conduct in communicating with the claimant on 20 and 23 August 2022 on issues concerning the 3rd TA, notwithstanding Ms Bay’s appointment.

Did the 1st defendant lie to Ms Bay that he would not come to the Premises on 12 August 2022?

43     The claimant pleaded that the 1st defendant lied to Ms Bay that he would not come to the Premises on 12 August 2022, but turned up with City Cooling when the claimant was not home.[note: 40] The defendants said that parties had agreed to this inspection, and the 1st defendant did not tell Ms Bay that he would not be coming to the Premises on 12 August 2022.[note: 41]

44     Initially, the claimant testified that because the 1st defendant had informed Ms Bay that he was not going to the Premises, Ms Bay did not go to the Premises. Ms Bay had also informed the claimant that the 1st defendant was not going to be at the Premises.[note: 42]

45     However, at the second tranche of trial, the claimant conceded that he made a mistake, and Ms Bay never said that the 1st defendant told her he would not be attending the inspection on 12 August 2022. He claimed that this mistake arose because he was fixated on how the 1st defendant was supposed to come in the afternoon but instead came in the morning.[note: 43]

46     I find that the 1st defendant did not say he was not coming to the Premises on 12 August 2022 or that he was only coming in the afternoon[note: 44]. The following exchanges are pertinent:

(a)     On 4 August 2022, the 1st defendant sent a WhatsApp message to the claimant that the air conditioning checking and servicing would be arranged on 12 August at 10.30am, and that this appointment would be confirmed if the claimant did not reply by 5 August 2022. The claimant did not respond.[note: 45]

(b)     The claimant was nevertheless aware of the appointment, because Ms Bay then messaged the 1st defendant on Wednesday, 10 August 2022, stating her understanding that there was an upcoming air conditioning servicing on Friday (i.e. 12 August 2022) and asking for more details.[note: 46]

(c)     On 11 August 2022 at 3:33pm, the 1st defendant told Ms Bay “see you tomorrow 10.30am-12pm at Caspian”. Ms Bay replied “yes”.[note: 47]

(d)     At 3:50pm, Ms Bay informed the 1st defendant that she could reach around 12pm and suggested letting the air conditioning contractor go up first, and meeting at 12.15pm to inspect the Premises.[note: 48] The 1st defendant did not respond on this query as parties then discussed novating the 3rd TA and revising rental.

(e)     At 6:09pm, Ms Bay asked if the 1st defendant was still going for the inspection.[note: 49] The claimant accepted that as of 6:09pm, there was still an agreement between Ms Bay and the 1st defendant to meet at the Premises.[note: 50]

(f)     The 1st defendant then replied “hope to see you [tomorrow]”.[note: 51] Ms Bay then asked if 12.15pm was ok.[note: 52] The 1st defendant did not respond directly to this message but said “see you [tomorrow]”, to which Ms Bay said “OK, see you”.[note: 53] Parties then continued discussing novating the 3rd TA.

(g)     However, on 12 August 2022 at 10:57 am, Ms Bay informed the 1st defendant that she would like to cancel their meeting[note: 54]. According to Ms Bay, this was because the 1st defendant had raised his voice at her during an earlier call.[note: 55]

47     The claimant conceded that the WhatsApp messages do not show the 1st defendant telling Ms Bay that he would not turn up at the Premises.[note: 56]

48     Ms Bay claimed that the 1st defendant and her had spoken about the 1st defendant not attending at the Premises without her.[note: 57] However, this assertion is not found in her AEIC and there are no such messages to this effect in evidence. Neither are her telephone records in evidence.

Did the 1st defendant behave aggressively with the result that the claimant’s wife was put in fear, while the claimant had to leave work abruptly and rush back home to deal with the situation?

49     The claimant claimed that the 1st defendant was aggressive when he was in the Premises on 12 August 2022 and even prior to 12 August 2022:

(a)     In his AEIC, the claimant alleged that the 1st defendant said in a loud tone something about why servicing of the air conditioning was not done, which put his wife and daughter in fear, and scolded the air conditioning servicing staff.[note: 58]

(b)     On the stand, the claimant claimed that there were several conversations between his wife and the 1st defendant in June and July 2022 where he shouted at her, causing her to be put in fear.[note: 59] His wife was also put in fear because the 1st defendant had bombarded them with emails on the issue of air conditioning servicing.[note: 60]

50     These assertions are not part of the claimant’s pleaded case. The claimant’s case, based on his pleadings, is that the 1st defendant had behaved aggressively outside the Premises on 12 August 2022, prior to the actual inspection:

(a)     The claimant initially pleaded that the 1st defendant behaved aggressively causing his wife to be put in fear, and she had no choice but to let the 1st defendant into the Premises. The claimant had to leave work abruptly and rush back home to deal with the situation.[note: 61] This suggests that the 1st defendant was aggressive when he was outside the Premises.

(b)     However, in his Defence to Counterclaim, the claimant stated that it was actually the air conditioning contractor who was waiting outside the Premises, which prompted the claimant’s wife to call the claimant at his office. When the claimant reached home, the 1st defendant had not arrived and the air conditioning contractor was still waiting at the door.[note: 62]

(c)     The pleadings do not say that the 1st defendant behaved aggressively when he was in the Premises or even before 12 August 2022.

51     The claimant conceded under cross-examination that his Statement of Claim was referring to the 1st defendant’s alleged conduct on the day itself, i.e. 12 August 2022, and this had nothing to do with alleged conversations in June and July 2022.[note: 63]

52     I find that the claimant has failed to establish his pleaded case that the 1st defendant behaved aggressively outside the Premises.

53     The claimant’s AEIC is silent on the 1st defendant’s allegedly aggressive conduct prior to entering the Premises.

54     The claimant did not call his wife as a witness. He said that was because he did not think it was necessary[note: 64] and he did not want to put her through a difficult position.[note: 65] There is therefore no direct evidence that his wife was put in fear by reason of the 1st defendant’s allegedly aggressive conduct.

55     In fact, the claimant was already at the Premises when the 1st defendant turned up with the air conditioning contractor.[note: 66]

56     Under cross-examination, the claimant conceded that he had arrived at the Premises either before or at around the same time as the 1st defendant[note: 67]. It was the claimant who let the 1st defendant into the Premises. The 1st defendant did not push his way in. There was no bodily contact and it was not the case that the 1st defendant came in despite the claimant’s protests.[note: 68]

57     Even the claimant’s non-pleaded assertions are not borne out by the evidence.

58     The defendants have produced a video recording which the 1st defendant claimed was taken by accident when he was in the Premises on 12 August 2022, as well as transcripts of their conversation. The video does not show the 1st defendant saying in a loud tone something about why servicing of the aircon was not done, or scolding the air conditioning servicing contractor. [note: 69]

59     I am not convinced by the claimant’s attempts to challenge the video recording:

(a)     The claimant argued that because the video was taken some time after the 1st defendant or the air conditioning service contractor had already entered the Premises, it did not capture the 1st defendant shouting at the claimant’s wife[note: 70]. However, this was not put to the 1st defendant.

(b)     The claimant argued that the video could not have been taken accidentally because deliberate steps must be taken to record a video on a mobile phone.[note: 71] This was not put to the 1st defendant. He was only cross-examined on how the video could not have been taken accidentally because he was “focusing on the camera”.[note: 72] In any event, I do not see how anything turns on whether the video was taken accidentally or intentionally.

(c)     The claimant argued that the video may have been doctored and/or there is another video which the defendants failed to produce[note: 73]. The sole basis of this assertion is the defendants’ pleading that there was a “video recording evidencing that the Claimant was present and waiting for the 1st Defendant and the Air-Con Contractor to arrive on 12 August 2022”.[note: 74] That the video could have been doctored was not put to the 1st defendant. Counsel for the claimant had merely asked if the 1st defendant had edited the video by “cutting”, and the 1st defendant answered that he did not.[note: 75] The 1st defendant denied that there were any other video recordings.[note: 76] The claimant has no evidence to suggest that the video was in fact doctored or that there is another video recording.

60     Ultimately, the claimant did not seek to challenge the 1st defendant’s account of what happened in the Premises or put the claimant’s version of events to the 1st defendant during cross-examination.

61     I also decline to draw adverse inferences against the defendants for not calling any witness from City Cooling.[note: 77] The defendants were not cross-examined on why they did not call any City Cooling representative as a witness. Further, the claimant himself could have called a City Cooling representative as a witness, given that there is no property in a witness: Prince Restaurant Pte Ltd v Kosma Holdings Pte Ltd [2017] SGHC 245 at [43] – [45].

62     I therefore find that the claimant has not discharged his burden of proving that the 1st defendant behaved aggressively at the Premises on 12 August 2022.

63     There is also insufficient proof of the 1st defendant’s allegedly aggressive conduct prior to 12 August 2022.

64     The claimant did not hear for himself the alleged conversations between his wife and the 1st defendant in June and July 2022. He was unable to say what they were about, other than his belief that the 1st defendant must have said something to his wife to put her in fear. [note: 78]

65     As for the emails on air conditioning servicing, I have found that the 1st defendant was entitled to ask for service reports and take issue with the shortfall in quarterly air conditioning servicing.

Did the 1st defendant, whilst inside the Premises, brazenly and without authority, walked around the Premises freely, invading the privacy and sanctity of the claimant’s home?

66     The claimant pleaded that the 1st defendant brazenly and without authority walked around the Premises, freely invading the privacy and sanctity of the Premises.[note: 79] The defendants denied this and stated that the 1st defendant was standing in the living room at all material times.[note: 80]

67     In particular, the claimant took issue with how the 1st defendant walked around the Premises to inspect it, and did not ask for permission before entering each room. According to him, because he only consented to inspection of the air conditioning, it should have been the air conditioning contractor, and not the 1st defendant himself, conducting the inspection.[note: 81]

68     However, clause 2(x) of the 3rd TA allows not just the defendants’ agents, surveyors, workmen and prospective buyer/tenants with all necessary appliances to inspect the Premises, but the defendants as well.

69     Further, clause 2(x) of the 3rd TA cannot be so restrictively construed as to require the 1st defendant to additionally seek the claimant’s consent each time he wanted to inspect fittings other than the air conditioning or before entering each room.

70     I come to this conclusion bearing in mind the following principles in Earl of Plymouth and others v Rees and another [2020] 4 WLR 105:

(a)     A landlord’s right of entry must be interpreted to work in a sensible fashion. There is no rule that it must be strictly construed or, where there were 2 possible interpretations, that a narrower interpretation should be preferred (at [59]).

(b)     It is in every case a question of interpreting the clause in question in its context. Part of the context is that the purpose of the contract was to confer on the tenant the right to exclusive possession of the premises (at [66]).

(c)     Accordingly, the right of entry was not a right to enter for entry’s sake, but a right to enter for a particular purpose. Accordingly, if a purpose was a reasonable one for which the landlords wish to enter the land, the proper interpretation of the right must be to enable them to do what was reasonably necessary to achieve that purpose, but conversely, if what they wanted to do (or what was reasonably necessary to do) in order to achieve a particular purpose was highly intrusive, then the purpose itself might be held not to be a reasonable one (at [70]).

(d)     Whether something the landlords want to do on the land is permitted by the right is a question of fact and degree in each case (at [71]).

71     All clause 2(x) requires is that there be a prior appointment for inspection, which inspection must take place at a reasonable time. The claimant was aware of the inspection on 12 August 2022. The defendants can conduct inspection for various purposes, whether to view the condition of the Premises or to do any works that may be required. The 1st defendant was therefore entitled to inspect the condition of Premises on 12 August 2022. Reading clause 2(x) sensibly, there is no requirement that the 1st defendant must additionally seek the claimant’s consent to inspect fittings other than the air conditioning or before entering each room, when parties had already agreed to the inspection on 12 August 2022. I do not find the 1st defendant’s inspection to be so intrusive such as to be unreasonable.

Did the 1st defendant demand without basis that the claimant repaint a wall which had minor discolouration and repair a damaged hinge of a glass door in the toilet with a similar hinge from Germany?

72     The claimant pleaded that during the “illegal inspection” on 12 August 2022, the 1st defendant found a minor discolouration on a wall and demanded that it be repainted. The 1st defendant also found a damaged hinge of the glass door in the toilet and demanded that it be repaired with a similar hinge from Germany and in September 2022. Such claims, according to the claimant, had no basis under the 3rd TA.[note: 82]

73     The defendants pleaded that the 1st defendant had spotted a bad stain on the wall and merely requested the claimant to remove it. The air conditioning contractor was the one who noticed the damaged hinge when he was trying to wash the air conditioner filter. The 1st defendant only requested that it be repaired, and mentioned in passing that the hinge was from Germany.[note: 83]

74     The claimant does not dispute that there was minor discoloration to the wall and a damaged hinge.[note: 84]

75     The claimant clarified that the basis of his objection is that the inspection on 12 August 2022 was supposed to be of the air conditioning, and the 1st defendant ought to have asked for permission if he wanted to inspect fittings other than air conditioning. Further, this had to be on an agreed date and time so that the claimant’s agent could be present.[note: 85]

76     For the reasons set out at [37] to [38] and [69] to [71], the 1st defendant was entitled to inspect the Premises on 12 August 2022 and demand that the claimant repaint the wall and repair the damaged hinge.

Did the 1st defendant erroneously invoke clause 2(x) of the 3rd TA and demand that his next inspection be held on 10 September 2022?

77     The claimant pleaded that because of the “illegal inspection”, the 1st defendant erroneously invoked clause 2(x) of the 3rd TA and demanded via several emails to the claimant, that his next inspection be on 10 September 2022 between 10 am and 6pm.[note: 86]

78     The defendants said these requests for further inspection were made because the air conditioning contractor who attended at the Premises on 12 August 2022 had highlighted that 2 of the air conditioning units may need chemical washing. The claimant did not respond to these requests.[note: 87]

79     As I have found at [39], the 1st defendant was entitled to demand a further inspection on 10 September 2022.

Was the claimant intimidated by the 1st defendant’s aggressiveness to pay an invoice from City Cooling dated 12 August 2022 amounting to $1,444.50?

80     The claimant pleaded that City Cooling had rendered a service report dated 12 August 2022 for “change 2nd hand fancoil dining room” and “change new fan motor room 1”, amounting to $1,444.50. This was work done beyond air conditioning servicing and/or outside the scope of the claimant’s obligations under clause 2(q) of the 3rd TA. The claimant paid this because he was intimidated by the 1st defendant’s aggressiveness or under a mistake of fact that he was liable.[note: 88]

81     The defendants said that the air conditioning was damaged because the claimant failed to maintain the air conditioning as per clause 2(q) of the 3rd TA. The air conditioning contractors had advised doing these works. The claimant had paid City Cooling without demur. The 1st defendant did not intimidate the claimant. [note: 89]

82     For the reasons set out at [49] to [62] above, the claimant has failed to discharge his burden of proving that the 1st defendant behaved aggressively at the Premises on 12 August 2022.

83     The claimant was in any case obliged to pay City Cooling’s invoice.

84     As noted at [23] to [26] above, the claimant had missed 1 air conditioning servicing during the 2nd TA. Additionally, since the 3rd TA commenced, there had only been 1 air conditioning servicing on 4 May 2022. By 12 August 2022, it had been more than 3 months since the last servicing.

85     Clauses 2(q) of the 2nd and 3rd TAs allow the defendants to demand compensation or reimbursement from the claimant for any additional costs the defendants incur for any repairs, replacement, maintenance or servicing of the air conditioning or parts as a result of the claimant’s failure to fulfill his obligations or show and submit proof of regular service report and service contract. Under the 3rd TA, the defendants also reserved the right to engage a professional air conditioning contractor to check on the air conditioning if there was any missed servicing, and all fees would be borne by the claimant.

Did the 1st defendant demand a variation of the 3rd TA by giving the claimant 2 options to choose from, with the intention of increasing the monthly rent?

86     The claimant pleaded that even though there was a valid tenancy agreement, the 1st defendant demanded a variation of the 3rd TA by giving the claimant 2 options to choose from, with the main intention of increasing monthly rental.[note: 90]

87     The defendants pleaded that it was actually Ms Bay who proposed that the defendants agree to a novation agreement with the claimant’s company, LT Sambo Co Ltd, or that a replacement tenant, at a monthly rental of $4,800, be found.[note: 91]

88     The evidence shows that it was not a unilateral demand by the 1st defendant to vary the 3rd TA. Rather, parties had been discussing how to revise the 3rd TA. This appears to have arisen because of rental arrears:

(a)     On 10 August 2021, the 1st defendant’s messaged Ms Bay to remind the claimant to pay the arrears since 2021. He also proposed converting the tenancy to a company tenancy at a higher rent, on the basis that a personal lease did not come with an agent who could assist the claimant.[note: 92]

(b)     Ms Bay discussed this with the claimant, who then proposed changing the tenancy to a company lease at an additional $100-$200 in monthly rental. [note: 93]

(c)     The 1st defendant and Ms Bay (on the claimant’s behalf) continued discussing the increase in rental and how to document the changes.[note: 94]

(d)     Eventually, by an email of 14 August 2022, the 1st defendant gave the claimant 2 proposals: (1) for the claimant to pay a revised rental of $3,800 per month from the next rental due date up to the expiry of the 3rd TA, with the claimant being at liberty to engage his own agent to handle tenancy matters; or (2) for the claimant to find a replacement tenant at $4,000 a month from 3 September 2022 to 2 October 2024 with a possibility of ending the new lease on 2 May 2024, and on similar terms and conditions as the 3rd TA.[note: 95]

(e)     There was a meeting at Waterway Point on 15 August 2022, attended by the claimant, the 1st defendant and Ms Bay, to discuss the way forward.[note: 96]

89     It was the claimant himself, who decided to terminate the 3rd TA.[note: 97] Hence on 16 August 2022, the claimant informed the 1st defendant that he would accept the 2nd option set out in the 1st defendant’s 14 August 2022 email. He also informed the 1st defendant that he would terminate the 3rd TA with 2 months’ notice and tasked Ms Bay to look for a replacement tenant.[note: 98]

Do the alleged acts amount to a repudiation of the 3rd TA?

90     Even if the 1st defendant committed any of the alleged acts, I am of the view that these would not amount to a breach of the covenant for quiet enjoyment.

91     Clause 3(c) states:

AND THE LANDLORD HEREBY AGREES WITH THE TENANT as follows:

(c)    That the Tenant paying the rent thereby reserved, observing and performing the several covenants and stipulations on the Tenant's part herein contained shall peacefully and quietly hold and enjoy possession of the said Premises during the terms hereby created without any interruption by the Landlord or any person or persons lawfully claiming under or in trust for the Landlord.

[Emphasis in original.]

92     To amount to a breach of the covenant for quiet enjoyment, there must be some interference with the enjoyment of the demised premises. The interference need not be direct or physical so long as it substantially interferes with the title to or possession of the demised premises or the ordinary and lawful enjoyment of those premises by the tenant. Whether this interference has taken place is, in each case, a question of fact: Lim Kau Tee v Lee Kay Li [2005] SGHC 162 (“Lim Kau Tee”) at [48] - [54].

93     The following instances would amount to a breach of the covenant for quiet enjoyment:

(a)     Where a tenant had to move out of the house for 2 weeks to allow the landlord o paint the house: Budd-Scott v Daniell [1902] 2 KB 351, cited at Lim Kau Tee at [58].

(b)     Where a landlord used abusive language demanding that the tenant leave the premises, and where on the last occasion, the tenant’s wife had been so terrified such that she hid underneath one of the caravans: Sampson v Floyd [1989] 2 EGLR 49, cited at Lim Kau Tee at [59].

(c)     Where a landlord tried by a series of threatening communications, to drive the tenant out of her possession of the premises, not merely by threatening legal proceedings, but of physical eviction of the tenant and removal of her belongings. There was also an element of direct physical interference as the landlord repeatedly knocked on the door and shouted the threats to her: Kenny v Preen [1963] 1 QB 499, cited at Lim Kau Tee at [60].

94     In contrast, the following have been found to not amount to a breach of the covenant for quiet enjoyment:

(a)     A temporary inconvenience which renders the tenant’s access to his premises less convenient than it was, but does not interfere with the tenant’s title or possession: Manchester, Sheffield & Lincolnshire Railway Company v Anderson [1898] 2 Ch 394 at 401.

(b)     A temporary inconvenience in the form of noise caused by construction works: Phelps v City of London Corporation [1916] 2 Ch 255.

(c)     Sending a solicitors’ letter threatening to exercise the landlord’s right of re-entry in relation to claims for outstanding rental which the tenant deliberately refused to pay, and where the tenant was not frightened at the prospect of being locked-out as he had already held closing-down sales: Lim Kau Tee at [61].

95     The conduct the claimant complained of amounts at best to a temporary and insubstantial inconvenience. It also did not rise to the level of interfering with the claimant’s possession or his ordinary and lawful enjoyment of the Premises. The allegedly wrongful inspection only took place over several hours on 12 August 2022. The claimant has only been able to point to several emails where the 1st defendant allegedly made claims without legal basis.

96     The claimant has not explained how the effect of the 1st defendant’s alleged conduct was to deprive him substantially of the whole benefit which it was intended that he should obtain from the 3rd TA, such that he was entitled to terminate the 3rd TA: RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 at [99]. Despite the inspection on 12 August 2022 and the sending of several emails, the claimant was still able to enjoy exclusive possession and use of the Premises.

97     Accordingly, I find that there was no repudiatory breach of the 3rd TA.

Was there an agreement reached on 16 August 2022, and if so, what is the effect of this agreement?

98     Even if there was a repudiatory breach, the claimant could not have accepted this by his solicitors’ letter of 23 August 2022[note: 99]. This is because parties had on 16 August 2022, already agreed to terminate the 3rd TA.[note: 100]

99     I pause to observe that the claimant has taken inconsistent positions on whether parties had agreed to terminate the 3rd TA.

100    The claimant had pleaded (albeit in the alternative) that the claimant and the defendants had agreed to terminate the 3rd TA and for the claimant to find a replacement tenant.[note: 101] In closing submissions, the claimant submitted that there was a “Settlement Agreement” between parties, the terms of which were set out in Ms Bay’s handwritten notes taken at their 15 August 2022 meeting [note: 102] , which state[note: 103]:

1)    Letter for 2 months’ notice (termination)

2)    No commission from landlord

3)    Rental $4,000/-

4)    SB commission to be held by landlord

5)    Caspian – MA hold $1K for job/work/minor repair SB to check

6)    Handover date to be confirmed

7)    Reinstatement as per TA (confirm & comply as pe TA)

8)    NT to pay legal costs of TA estimated $1K

9)    Security deposit to be refunded after deduction, if any (as per TA).”

101    Yet, in his reply submissions, the claimant denied that the 3rd TA was terminated by agreement. He also denied that the new agreement was evidenced by Ms Bay’s handwritten notes and the claimant’s email of 16 August 2022.[note: 104] The claimant argued that there could not have an agreement because item 6 of Ms Bay’s notes states “handover date to be confirmed”, but this date was not confirmed. He also relied on the 1st defendant’s subsequent requests for further inspection and rectification of hinges, as inconsistent with the existence of a new concluded agreement. [note: 105]

102    I find that parties had reached an agreement on 16 August 2022 to terminate the 3rd TA:

(a)     The claimant’s revised position is inconsistent with his own email stating that he would accept the 2nd option set out in the 1st defendant’s 14 August 2022 email and that he was agreeable to the Ms Bay’s handwritten notes of 15 August 2022.[note: 106]

(b)     That parties had not confirmed the exact handover date does not prevent a finding that an agreement was reached. All the essential terms were agreed upon.

(c)     Without the agreement on 16 August 2022, the claimant would not have been entitled to give 2 months’ notice of termination. Clause 4(g) of the 3rd TA provides that the claimant had to fulfill the tenancy period of 25 months and that the claimant did not have an option of terminating the 3rd TA.

103    The 1st defendant was entitled to insist that the claimant complied with his obligations under the 3rd TA. The 3rd TA would only come to an end on 15 October 2022. Further, as per item (7) of Ms Bay’s notes, the claimant still had to comply with his reinstatement obligations in the 3rd TA.

104    The claimant did not reserve his ability to sue for any alleged prior breaches.[note: 107] Notably, the claimant himself in closing submissions, referred to the agreement as a “Settlement Agreement”.[note: 108] The claimant is therefore precluded from relying on the defendants’ repudiatory conduct (if any), as a basis for terminating the 3rd TA.

The claimant’s damages claim

105    The claimant pleaded that because of the defendants’ breach, the claimant had to move out of the Premises into a new rental residence and pay a higher monthly rental, thereby suffering loss and damage as follows[note: 109]:

(a) Rental difference between the new rent of $4,800.00 and $3,400.00 for the period of 25 months

$35,000.00

(b) Ad Valorem Stamp Duties paid for the 3rd TA

$340.00

(c) Ad Valorem Stamp Duties paid for the new tenancy agreement

$460.00

(d) Costs of Movers [The Trio Movers Pte Ltd (UEN: 202108869N)] for the services of moving from the Premises to new residence

$980

(e) Agent commission for the new residence

$5,136.00

(f) Payment for the services rendered by Ms Bay in liaising with the 1st defendant; in procuring the replacement tenant, Jia Guanyuan (“Jia”); and in attending the handover of the Premises to the defendants on 2 September 2022

$5,184.00

Total:

$47,100



106    In respect of [105(b)], these are costs that the claimant would have incurred in any event, upon entering the 3rd TA.

107    Given my finding that there was no repudiatory breach, the claimant is not entitled to recover the alleged costs of moving to new premises ([105(a), (c), (d) and (e)]). Even if there was a repudiatory breach, these are costs that the claimant would have incurred in any event following his decision to terminate the 3rd TA with 2 months’ notice.

108    In respect of [105(f)], no breakdown of Ms Bay’s fees has been provided.[note: 110] In any case, the claimant is not entitled to recover these. It was the claimant who chose to appoint Ms Bay as his agent to liaise with the 1st defendant and attend at the handover. The claimant would have to incur Ms Bay’s fees for finding a replacement tenant in any event as a result of his agreement to find a replacement tenant.

109    The claimant also has a claim for alleged overpayment of City Cooling’s fees of $1,444.50. For the reasons at [83] to [85] above, the claimant is obliged to bear this cost.

110    Finally, the claimant sought a return of his security deposit of $7,800 less any deductions. The defendants have asked that this be set off against their counterclaim. Per clause 2(b) of the 3rd TA, the security deposit shall be refunded to the claimant within 40 days after expiry or lawful termination of the 3rd TA but the defendants can deduct any sum as may be reasonable to remedy any failure by the claimant to observe or perform his obligations under the 3rd TA.

111    I find that the defendants are entitled to set off the security deposit against their counterclaim, but for the reasons I will come to shortly, I only allow the counterclaim in part, leaving a remaining $1,423.80 which the defendants are to refund the claimant.

The defendants’ counterclaim

Cost of repairs

112    The defendants said that they incurred the following reinstatement costs because the claimant failed to hand over the Premises in like condition as at the commencement of the tenancy[note: 111]:

(a) Repainting works to living and bedrooms

$3,477

(b) Costs of replacing the damaged hinges to glass swing shower doors at toilets

$706.20

(c) Costs of restoring and polishing the parquet floor at bedrooms and parquet wall skirting at the dining area

$2,000

(d) Costs of restoring damaged kitchen tap and silicon at kitchen sink

$50

(e) Costs of professional cleaning of the Premises

$576

(f) Costs of repairing damaged door lockset and laminated panel of kitchen semi-glass door and drawer lockset at bedroom 1

$80

(g) Costs of restoring damaged hob backing above hob and damaged hood aluminum filter and charcoal filter at kitchen

$300

(h) Costs of restoring damaged box up wall grouting at fridge area

$200

(i) Costs of chemical wash and topping up of gas to air conditioning

$570

(j)    Costs of restoring damaged door frames at the bedrooms

$200

(k)    Costs of replacing the irreparably damaged washer, TV and the dining table set with 4 chairs

$1,100

(l) Costs of replacing damaged casement window gasket

$2,200

Total:

$11,429.20



113    Clause 2(t) of the 3rd TA states:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(t)    At the expiration or the sooner termination of the tenancy to peacefully and quietly deliver up and yield up to the Landlord the said Premises in like condition as if the same were delivered to the Tenant at the commencement of the [1st TA], as well as shall be in accordance with the conditions, covenants and stipulations herein contained in this Tenancy Agreement. At the expiration or sooner termination of the tenancy, the Landlord shall have the prerogative to effect the reinstatement works himself / themselves as stated out in this paragraph and/or clause 2(g).

[Emphasis in original.]

114    Clause 2(d) of the 3rd TA also contains the obligation to yield up the interior of the said Premises in good and tenantable condition at the lawful termination of the 3rd TA.

115    The claimant admitted that the door hinges in the common toilet were damaged. He thus acknowledged that the defendants are entitled to deduct from the security deposit, their reasonable costs for rectifying these.[note: 112] As for the other alleged defects however, the claimant pleaded that: (1) these were not highlighted during the joint inspection on 2 September 2022; (2) the defendants failed to invite him to conduct a joint inspection to verify these or give him an opportunity to comment on the rectification costs; (3) the defendants failed to mitigate the loss; and (4) the alleged defects were in fact fair wear and tear.[note: 113]

116    However, in closing submissions, the claimant instead argued that[note: 114]:

(a)     The defendants have not proven the condition of the Premises as at the time of commencement of the 1st TA;

(b)     The defendants have not proven the alleged defects existed when the Premises were handed over; and

(c)     Not all the alleged expenses are supported by receipts.

117    Dealing with (a), the claimant questioned the authenticity of the defendants’ photographs allegedly taken of the Premises in 2018, because they had annotations such as “Boon Lay” and “Pioneer”[note: 115] even though the Premises were at a condominium called the Caspian. The claimant said that the 260 photographs which he took of the Premises when he first took possession in 2018 showed the true condition of the Premises. The 1st defendant’s explanation was that the annotations on his photographs could have been automatically populated by his iPhone.[note: 116]

118    Apart from referring to the annotations, the claimant has put forward no other grounds as to why the defendants’ photographs cannot be of the Premises. The claimant’s photographs are also not helpful – the claimant has only referred to several photographs showing some white spots on the floor trap at the toilet[note: 117] and some marks on the parquet floor.[note: 118] He did not identify which of the other alleged defects were in fact pre-existing as of 2018.[note: 119]

119    As to whether the alleged defects existed at the Premises when the Premises were handed over, the claimant argued that:

(a)     The defendants’ photographs of the alleged defects[note: 120] were taken without the claimant’s representatives present. The 1st defendant did not highlight any defects when Ms Bay attended at the handover;

(b)     There is no evidence that the defendants’ photographs of the alleged defects[note: 121] are the same as those which the 1st defendant sent to Ms Bay’s friend[note: 122];

(c)     The defendants did not call as witnesses the other representatives who were with the 1st defendant at the handover.

120    Ms Bay had attended the handover with a male friend, Darwin. The 1st defendant only raised the issue of defects about 30 minutes after they left, by sending various photographs to Darwin, who then forwarded them to her.[note: 123] However, even if the defects had not been immediately raised, it does not mean that there were no defects. Further, it was only put to the 1st defendant that because the defects had not been pointed out to Ms Bay earlier, the photographs were “irrelevant” and “useless, in terms of evidential value.”[note: 124]

121    The claimant has not explained how the photographs sent to Darwin are different from the photographs annexed to the 1st defendant’s AEIC, or how these differences are material.

122    The claimant has only singled out some photographs showing adhesive tapes attached to a cupboard door[note: 125], to argue that these could not be defects. It is unclear which set of rectification costs these relate to. The claimant has not pointed to any other photographs or argued why the remaining alleged defects were not in fact defects.

123    I do not see the need for the defendants to call the other representatives who attended at the handover with the 1st defendant as witnesses. It is sufficient for the 1st defendant to adduce the photographs taken at the Premises. He is also in the position to give evidence as he was present at the Premises on 2 September 2022.

124    Ultimately, the claimant has no photographic evidence of the Premises to contradict those taken by the 1st defendant, which clearly show that there were defects to the Premises.

125    I therefore accept the 1st defendant’s evidence that the claimant did not hand over the Premises in like condition as at the commencement of the 1st TA.

126    However, I find that the defendants have not discharged their burden of proving that they in fact incurred all the alleged rectification costs.

127    The defendants have provided documents in respect of the costs claimed at [112(a), (b), (e) and (i)] only.

128    Even then, only the documents in support of [112 (b) and (i)] look to be receipts, being documents titled “Tax Cash Sales”[note: 126] and “Job Invoice”[note: 127] respectively.

129    The documents in respect of [112(a)[note: 128] and (e)[note: 129]] are only quotations. The quotation in support of [112(a)] is expressed to be valid for 30 days and has a section for “customer confirmation Sign & Date”, but this is left blank. As for the quotation for [112(e)], this is only for $425, and not $570 as claimed by the defendants. Even though the 1st defendant said there was a second page[note: 130], this has not been produced.

130    The 1st defendant’s explanation for the lack of receipts was that he paid in cash.[note: 131] However, most of these are not insubstantial amounts, with the highest at $2,200. The defendants have also not given any evidence to show that the work was done, or by whom. The onus is on the defendants to prove that these costs were incurred.

131    I therefore only allow the costs claimed at [112(b) and (i)], which amount to $1,276.20.

One and a half months’ rent in lieu of notice

132    The claimant’s 2 months’ notice of termination, given on 16 August 2022, would have ended on 15 October 2022. However, the claimant vacated the Premises on 2 September 2022. The defendants have a counterclaim for breach of the settlement agreement, being one and a half months’ rent in lieu of notice.

133    The claimant denied that he was in breach. He pleaded that: (1) he did not agree to serving 2 months’ notice as he did not accept the 1st defendant’s proposal that he find a replacement tenant; and (2) had the defendants entered a tenancy with Jia, that would have commenced on 3 September, and the 3rd TA would have ended before then and not October 2022.[note: 132]

134    In the claimant’s closing submissions, the claimant additionally submitted that because the defendants derailed the tenancy with Jia, the claimant was no longer bound by the “Settlement Agreement” and was entitled to terminate the 3rd TA and hand over the Premises on 2 September 2022.[note: 133] The claimant also argued that the defendants, being the party in breach of the “Settlement Agreement”, was not entitled to enforce its terms.[note: 134] The claimant argued that he would only be in breach of the requirement to give 2 months’ notice in the event this Court that there is no breach of the 3rd TA and the “Settlement Agreement” by the defendants.[note: 135]

135    It is not disputed that Ms Bay subsequently found Jia as a potential replacement tenant. Jia and the defendants executed a letter of intent dated 18 August 2022 (“LOI”), and Jia paid a good faith deposit of $4,800 to the defendants. However, Jia did not eventually lease the Premises.[note: 136] Jia commenced a Small Claims Tribunal action against the defendants to recover his deposit. Parties eventually reached a confidential settlement.[note: 137]

136    Parties disputed the reasons why Jia did not eventually lease the Premises. The claimant said it was the defendants who unilaterally changed the terms of the LOI and demanded that Jia execute the defendants’ tenancy agreement, which Jia refused. The defendants denied unilaterally changing the terms of the LOI. According to them, it was Jia who refused to sign the tenancy agreement even though the terms had been agreed. The defendants were entitled to forfeit the deposit.[note: 138]

137    Whatever the reasons were for Jia not leasing the Premises, and which party was at fault, is irrelevant.

138    I have found that there was an agreement on 16 August 2022 to terminate the 3rd TA with 2 months’ notice (see [102] to [103] above). The claimant was thus obliged to give 2 months’ notice.

139    There is nothing in the terms[note: 139] which obliged the defendants to lease the Premises to the claimant’s replacement tenant. The obligation to give 2 months’ notice is not expressed to be conditional upon the defendants first entering a tenancy with the claimant’s replacement tenant. The defendants’ failure to enter a replacement tenancy with Jia also did not prevent the claimant from giving 2 months’ notice.

140    It is also not the case that 3rd TA would definitely have ended on 2 September 2022 had the defendants enter into the replacement tenancy with Jia. I note that 3 September 2022 is only stated as a tentative start date in the LOI. The LOI also stated that the lease was subject to parties executing a tenancy agreement.[note: 140]

141    The defendants’ right to claim rental in lieu of notice is not predicated on whether they had breached the 3rd TA. These are separate agreements. I have in any case also found that there was no repudiatory breach of the 3rd TA (see [90] to [97] above).

142    I therefore find in favour of the defendants on their counterclaim for one and a half months’ rental in lieu of notice, however, given that monthly rental was $3,400, this amount should be $5,100 and not $6,800.[note: 141]

Conclusion

143    For the above reasons, I allow the defendants’ counterclaim in part. After setting off the sum of $6,376.20 against the security deposit of $7,800, the defendants are to pay the claimant $1,423.80.

144    Unless parties can agree on costs, they are to file brief costs submissions, limited to 10 pages, within 2 weeks of the date of this judgment.

[note: 1]The claimant’s closing submissions dated 15 July 2024 (“CCS”), [12].

[note: 2]CCS, [96].

[note: 3]Statement of Claim (“SOC”), [5].

[note: 4]SOC, [5(a)]; Defence to Counterclaim, [2(a)]; the claimant’s affidavit of evidence-in-chief (“AEIC”), [16] – [17]; CCS, [10].

[note: 5]Certified Transcripts (“CT”), 3 April 2024, 40:25 – 41: 10; Agreed Bundle of Documents Vol. 1 (“1AB”) 41, the defendants’ closing submissions dated 1 July 2024 (“DCS”), [31] – [34]; the defendants’ reply submissions dated 5 August 2024, [12] – [15].

[note: 6]Defence and Counterclaim, [5(ii)(g)].

[note: 7]Computing the 3-months’ cycle from the start date of the 2nd TA of 3 March 2020, servicing would be due in June, September, December 2020, March, June, September, December 2021 and March 2022.

[note: 8]Computing the 3-months’ cycle from the start date of the 1st TA of 2 February 2018, servicing would be due in May, August, November 2018, February, May, August and November 2019 and February 2020.

[note: 9]Computing the 3-months’ cycle from the start date of the 3rd TA of 3 April 2022, servicing would be due in July, October 2022, January, April, July, October 2023 and January and April 2024.

[note: 10]Being March, July and October 2022.

[note: 11]DCS, [33].

[note: 12]CT, 3 April 2024, 37:1 - 39:29.

[note: 13]Bundle of Documents (Not in the Agreed Bundle of Documents) (“DB”) 41-45; 1st defendant’s AEIC, [11].

[note: 14]Exhibit D4.

[note: 15]Being February, May, August and November 2020, February, May, August and November 2021, and February and May 2022.

[note: 16]1AB 41.

[note: 17]Exhibit D3.

[note: 18]1AB 43.

[note: 19]Clause 1 of the 2nd TA, 1AB 14; Clause 1 of the 3rd TA, 1AB 24.

[note: 20]SOC, [5(b)].

[note: 21]Defence and Counterclaim, [5(iii)].

[note: 22]Defence and Counterclaim, [5(iii)(a) – (b)].

[note: 23]The claimant’s AEIC, [18].

[note: 24]1AB 42.

[note: 25]1AB 43.

[note: 26]1AB 66- 67.

[note: 27]1AB 72-73.

[note: 28]CCS, [10(a)- [10(b)].

[note: 29]CCS, [10(c)].

[note: 30]CCS, [10(f)].

[note: 31]DCS, [30], [33], [38].

[note: 32]Exhibit D4.

[note: 33]CT, 3 April 2024, 54:27 – 55:4.

[note: 34]CCS, [10(d)].

[note: 35]CT, 1 April 2024, 36:1 – 37:16, the claimant’s AEIC, [22].

[note: 36]CT, 6 February 2024, 54:27 – 55:4; CT, 6 February 2024, 50:22 - 52:3.

[note: 37]DB 48 - 49.

[note: 38]DB 131.

[note: 39]1AB 197 -218; Ms Bay’s AEIC, [23] – [28].

[note: 40]SOC, [5(c)].

[note: 41]Defence and Counterclaim, [5(ii)(f)], [5(iv)].

[note: 42]The claimant’s AEIC, [19], CT, 6 February 2024, 54:15 – 56:5.

[note: 43]CT, 1 April 2024, 18:1 – 19:20.

[note: 44]DB 57- 68.

[note: 45]DB 47.

[note: 46]DB 48.

[note: 47]DB 58.

[note: 48]DB 58.

[note: 49]DB 62.

[note: 50]CT, 6 February 2024, 59:27 – 60: 5.

[note: 51]Message time-stamped 6:17pm, DB 62.

[note: 52]Message time-stamped 6:18pm, DB 63.

[note: 53]Message time-stamped 6:35pm and 6:36pm, DB 64.

[note: 54]DB 68.

[note: 55]CT, 2 April 2024, 22:29- 26:6.

[note: 56]CT, 6 February 2024, 60:6 – 61:8.

[note: 57]CT, 2 April 2024, 19:25 – 31 -22:6.

[note: 58]The claimant’s AEIC, [21].

[note: 59]CT, 6 February 2024, 31:11- 32:8.

[note: 60]CT, 6 February 2024, 34:20- 35:11.

[note: 61]SOC, [5(d)].

[note: 62]Defence to Counterclaim, [4].

[note: 63]CT, 6 February 2024, 35:12 – 14.

[note: 64]CT, 6 February 2024, 43:11 – 16.

[note: 65]CT, 1 April 2024, 60:14- 26.

[note: 66]Defence and Counterclaim, [5(v) – (vi)] .

[note: 67]CT, 1 April 2024, 9:24-32; 14:25-28.

[note: 68]CT, 1 April 2024, 21:28 - 23:14.

[note: 69]DB, Item 10; Exhibit D5.

[note: 70]CT, 1 April 2024, 9:14-21; 54:10 – 19.

[note: 71]CCS, [10(k)].

[note: 72]CT, 3 April 2024, 6:30 – 7:10.

[note: 73]CCS, [10(l)].

[note: 74]Defence and Counterclaim, [5(v)].

[note: 75]CT, 3 April 2024, 61:7-10.

[note: 76]CT, 3 April 2024, 8:1 –30; 9:28 - 10:4.

[note: 77]CCS, [10(n) – (o)].

[note: 78]CT, 6 February 2024, 32:9 - 34:8.

[note: 79]SOC, [5(e)].

[note: 80]Defence and Counterclaim, [5(vii)].

[note: 81]CT, 1 April 2024, 16:24 - 17:32.

[note: 82]SOC, [5(f)]; the claimant’s AEIC, [22].

[note: 83]Defence and Counterclaim, [5(viii)]

[note: 84]CT, 1 April 2014, 61:5 – 17.

[note: 85]CT, 1 April 2024, 35:27 – 37:21.

[note: 86]SOC, [5(g)], read with Defence to Counterclaim, [6].

[note: 87]Defence and Counterclaim, [5(ix)].

[note: 88]SOC, [5(h)].

[note: 89]Defence and Counterclaim, [5(x)].

[note: 90]SOC, [5(i)], read with Defence to Counterclaim, [7(a)].

[note: 91]Defence and Counterclaim, [5(xi)]; Defence to Counterclaim, [7(a)].

[note: 92]DB 49.

[note: 93]DB 52.

[note: 94]DB 58 – 82.

[note: 95]Exhibit D2.

[note: 96]The claimant’s AEIC, [32]; Ms Bay’s AEIC, [10] – [13].

[note: 97]The claimant’s AEIC, [33] – [34]; Ms Bay’s AEIC, [10] – [11].

[note: 98]Exhibit D2.

[note: 99]SOC, [7] – [8]; 1AB 83- 84.

[note: 100]Exhibits D1, D2.

[note: 101]SOC, [9].

[note: 102]CCS, [8], [11(c), 11(i), 11(j)].

[note: 103]Bundle of Affidavits of Evidence-in-Chief Vol. 1 (“1BA”) 87 – 88; Ms Bay’s AEIC, [12].

[note: 104]The claimant’s reply submissions dated 5 August 2024, [19] – [25].

[note: 105]CRS, [24].

[note: 106]Exhibit D1.

[note: 107]DCS, [81].

[note: 108]CCS, [8], [11(c), 11(i), 11(j)].

[note: 109]SOC, [12].

[note: 110]Exhibit C1.

[note: 111]Defence and Counterclaim, [21] – [22]; 1st defendant’s AEIC, [21].

[note: 112]CCS, [12(c)].

[note: 113]Defence to Counterclaim, [9].

[note: 114]CCS, [14] – [15].

[note: 115]Bundle of Affidavits of Evidence-in-Chief Vol. 2 (“2BA”) 430 – 460.

[note: 116]CT, 2 April 2024, 90:23 – 92:30.

[note: 117]Agreed Bundle of Documents Vol. 2 (“2AB”) 326.

[note: 118]2AB 403T, 403B.

[note: 119]CCS, [14(c)(vi)].

[note: 120]2BA 461 – 526; DB 176 – 241.

[note: 121]2BA 461 – 526; DB 176 – 241.

[note: 122]1BA 130 – 212.

[note: 123]Ms Bay’s AEIC, [28], Ms Bay’s AEIC, Tab-H.

[note: 124]CT, 3 April 2024, 5:1-11.

[note: 125]2AB 226, 227.

[note: 126]DB 140.

[note: 127]DB 143.

[note: 128]DB 141.

[note: 129]DB 142.

[note: 130]CT, 3 April 2024, 20: 1: 21-2.

[note: 131]CT, 3 April 2024, 18:7-21:25; 20:1- 21: 13, 25:30-26:12; 27:7-28:1.

[note: 132]Defence to Counterclaim, [8(a) - (b)].

[note: 133]CCS, [8(e)].

[note: 134]CCS, [11(j)].

[note: 135]CCS, [13].

[note: 136]SOC, [9].

[note: 137]Lim Hwee See’s AEIC.

[note: 138]Defence and Counterclaim, [9].

[note: 139]1BA 87 – 88; Ms Bay’s AEIC, [12].

[note: 140]1AB 48 – 52.

[note: 141]CCS, [13].

"},{"tags":["Criminal Procedure and Sentencing – Road Traffic Act – Section 67(1)(b) read with Section 67(2)(a) – Drink driving – Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) – Driving without due care and attention – Serious offender and Repeat offender – Sentencing – Disqualification from holding or obtaining a driving license"],"date":"2024-11-12","court":"District Court","case-number":"DAC No. 908588-2023 & 2 Ors, Magistrate's Appeal No. 9189-2024-01","title":"Public Prosecutor v Bhandari Neel Rajveer","citation":"[2024] SGDC 294","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32466-SSP.xml","counsel":["DPP Matthew Choo (Attorney-General's Chambers) for the Prosecution","Mohamed Niroze Idroos (Niroze Idroos LLC) for the Accused"],"timestamp":"2024-11-19T16:00:00Z[GMT]","coram":"Ong Hian Sun","html":"Public Prosecutor v Bhandari Neel Rajveer

Public Prosecutor v Bhandari Neel Rajveer
[2024] SGDC 294

Case Number:DAC No. 908588-2023 & 2 Ors, Magistrate's Appeal No. 9189-2024-01
Decision Date:12 November 2024
Tribunal/Court:District Court
Coram: Ong Hian Sun
Counsel Name(s): DPP Matthew Choo (Attorney-General's Chambers) for the Prosecution; Mohamed Niroze Idroos (Niroze Idroos LLC) for the Accused
Parties: Public Prosecutor — Bhandari Neel Rajveer

Criminal Procedure and Sentencing – Road Traffic Act – Section 67(1)(b) read with Section 67(2)(a) – Drink driving – Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) – Driving without due care and attention – Serious offender and Repeat offender – Sentencing – Disqualification from holding or obtaining a driving license

12 November 2024

Senior District Judge Ong Hian Sun:

Introduction

1       Mr Bhandari Neel Rajveer (“the accused”), a 49-year-old male British citizen and Singapore Permanent Resident pleaded guilty and was convicted on the following three charges:

a)     “..are charged that you, 21 September 2022 at or about 1.32 am., along lane 3 of 6 of Kampong Bahru Road at the junction of Keppel Road Singapore, whilst driving motorcar, SNC 7384P, did have so much alcohol in your body that the proportion of it in your blood, to wit, not less than 127 milligrams of alcohol in 100 millilitres of blood, exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood and you have thereby committed an offence under Section 67(1)(b) and punishable under Section 67(1) read with Section 67(2)(a) of the Road Traffic Act 1961.” (DAC 908588-2023 - “drink driving charge”).

b)     “..are charged that you, on 21 September 2022, at or about 1.32 am, along Kampong Bahru Road at the junction of Keppel Road towards Brani Terminal Gate 2, did drive motorcar bearing vehicle number SNC 7384P, on the road without due care and attention, to wit, by failing to keep a proper lookout ahead and collided with the rear of a bus bearing vehicle number PC 1994Y, and you have thereby committed an offence under Section 65(1)(a) of the Road Traffic Act 1961. And further, that you, before the commission of the said offence, has been convicted, on 3 September 2016 (vide 163065702311) in Court 25N for an offence of speeding under Section 63(4) of the Road Traffic Act (Cap. 267, Rev. Ed. 2004), which conviction has not been set aside, and you are thereby liable to be punished under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) of the Road Traffic Act 1961.” (DAC 908589-2023 – “driving without due care and attention charge”)

c)     “..are charged that you, 21 September 2022 at or about 1.32 am., along Kampong Bahru Road at the junction of Keppel Road Singapore, whilst driving motorcar, SNC 7384P, did fail to obey the traffic indicating sign by proceeding straight across the junction when the traffic light signal was showing red along Kampong Bahru Road and you have thereby committed an offence under Section 120(3) read with (r/w) Section 120(4) of the Road Traffic Act 1961 and punishable under (p/u) Section 131(2)(a) of the Road Traffic Act 1961.” (DAC 908592-2023 – “beating traffic light signal charge”)

2       The accused agreed to have two of his remaining charges, one under Section 84(1)(a) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act 1961 and one under Section 84(3) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act to be taken into consideration for the purpose of sentencing.

3       I sentenced him to a fine of $5000 and disqualification from driving all classes of vehicles for a period of 30 months for the drink driving charge, 3 weeks’ imprisonment and disqualification from driving all classes of vehicles for a period of 2 years for the driving without due care and attention charge, and $1000 fine for the beating traffic light signal charge.

4       Dissatisfied with my decision, the accused filed an appeal against the sentence and the order of disqualification. He has been granted stay of execution for the sentence and the order of disqualification pending the outcome of his appeal. He has been released on bail pending his appeal.

5       I hereby set out the reasons for my decision.

Punishment Prescribed by Law

6       The punishment prescribed under s 67(1) r/w s 67(2)(a) of the Road Traffic Act 1961 for a first-time drink driving offender under s 67(1)(b) is a fine not less than $2000 and not more than $10000 or a term of imprisonment not exceeding 12 months, or with both and a disqualification order of not less than 2 years.

7       The punishment prescribed for an offence of driving without due care and attention for a serious and repeat offender under Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) of the Road Traffic Act 1961 is a fine of not less than $2000 and not more than $13,000 [combining the fine not exceeding $3000 in Section 65(5)(b) and the fine not exceeding $10,000 in Section 65(5)(c)] or a term of imprisonment not exceeding 24 months or both. Further, pursuant to Section 65(6)(i) of the Road Traffic Act 1961, there is a mandatory disqualification order of at least 2 years.

8       The punishment prescribed for an offence of beating the traffic light signal under Section 120(3) read with Section 120(4) of the Road Traffic Act 1961 and punishable under Section 131(2)(a) of the Road Traffic Act 1961 is a fine not exceeding $1,000 or to imprisonment for a term not exceeding 3 months. Further, Section 42(1) of the Road Traffic Act, Cap 276 provides that a court before which a person was convicted of any offence in connection with the driving of a motor vehicle, could also order that person to be disqualified from holding or obtaining a driving license for life or for such period as the court might think fit.

Statement of Facts

9       The salient parts of the Statement of Facts (SOF) which the accused admitted without qualification are as follows.

10     The accused is Bhandari Neel Rajveer, a 49-year-old male British citizen and Singapore Permanent Resident.

11     On 21 September 2022, the Singapore Police Force received a call with the following message “There is a vehicle believed to be involved in a hit and run. The driver believed to be drunk. The vehicle ended up at our place. The incident location provided was Brani Port Terminal Gate 2, 2 Brani Terminal Avenue, Singapore 098324, Singapore (“Brani Terminal Gate 2”).

12     On 20 September 2022, at about 9:30 pm, the accused attended a company function at a club located at Clarke Quay. There, the accused consumed three units of whisky. The accused left the club before 1:32 am on 21 September 2022 to return home at Siglap Road. The accused drove his motor car bearing vehicle number SNC 7384P.

13     On route home, at about 1:32 am, the accused was driving along Kampong Bahru Road at the junction of Keppel Road, towards Brani Terminal Gate 2. The accused was traveling on lane three of the six-lane carriageway.

14     At the junction, the traffic light was red and traffic had formed in accordance with the directional traffic signal. The accused, without due care and attention, failed to keep a proper lookout and failed to brake in time. He caused a rear-end collision with the stationary vehicle that had formed up in front, being a bus bearing vehicle number PC 1994U.

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15     The bus driver disembarked from his vehicle and approached the accused’s car. As the bus driver approached the accused’s car and tapped on the car, instead of providing his particulars and rendering assistance, the accused reversed his vehicle, signalled and switched to the right lane (lane four), and drove straight towards Brani Terminal Gate 2.[note: 1] The accused drove straight from a right-turn only lane and while the traffic light was red. The accused failed to obey the traffic sign by failing to comply with the traffic signal light that required the accused to not proceed forward.

16     At the time of accident, the weather was clear, the road surface was dry and the traffic volume was light.

17     The accused was stopped by the security personnel at Brani Terminal Gate 2. The bus driver followed the accused towards Brani Terminal Gate 2 after the lights turned green in the bus’s favour.

18     At about 2:04 am, Senior Staff Sergeant Abdul Hakim Abdul Rahim (“SSGT Abdul”) arrived on scene and attended to the incident. SSGT Abdul observed the accused to reek of alcohol. SSGT Abdul administered a preliminary breathalyser test, and the accused failed the breathalyser test. He was arrested and escorted to the Traffic Police Headquarters and asked to provide a specimen of his breath for an analysis using the Breath Analysis Device (“BAD”). However, the accused was too drowsy to provide a specimen for a test conducted using the BAD. The accused consented to providing to a registered medical practitioner, a specimen of his blood for a laboratory test.

19     On 5 October 2022, the Analytical Toxicology Laboratory of the Health Sciences Authorities issued a report stating that upon analysis of the accused’s blood sample submitted, the accused’s blood ethanol (alcohol) was analysed to be 127 mg/100 ml, which exceeded the prescribed limit of 80 mg/100ml.

20     On 15 November 2022, the accused made full restitution of S$1,800 for the damage caused to the bus.

21     By virtue of the foregoing, the accused has thereby committed:

(a)     An offence under s 67(1)(b) and punishable under s 67(1) read with s 67(2)(a) of the Road Traffic Act 1961.

(b)     An offence under s 65(1)(a) of the Road Traffic Act 1961. Further, the accused was, before the commission of the offence, convicted on 3 September 2016 (vide 163065702311) in Court 25N for an offence under s 63(4) of the Road Traffic Act (Cap. 267, Rev. Ed. 2004). He is thereby liable to be punished under s 65(5)(c) read with s 65(5)(b) and s 65(6)(i) of the Road Traffic Act 1961.

(c)     An offence under s 120(3) read with s 120(4) and punishable under s 131(2)(a) of the Road Traffic Act 1961.

Prosecution’s submissions on sentence

22     With respect to the drink driving charge, the Prosecution referred to the sentencing framework in Rafael Voltaire Alzate v PP [2022] 3 SLR 993 at [31] (“Rafael Voltaire”) and urged this court not to accept Defence’s forensic report which was based primarily on the accused’s self-reporting of prior consumption of ayurvedic medicines.

23     In the alternative, the Prosecution argued that even if the Defence’s forensic report were to be accepted, the variance in the supposed blood alcohol level excluding the supposed effects attributable to the consumption of these medicines is not materially different from that stated in the Health Sciences Authorities’ (“HSA”) report.

24     The Defence’s forensic report stated that the blood alcohol level attributable to the accused’s consumption of alcohol is between 119.57mg and 122.41 mg/100 ml, being between 52 μg and 54 μg/100 ml of breath. This would have placed the accused in the upper end of Band 1 of the indicative sentencing range of at least $2000 to $4000 fine and a disqualification order for a period of 24 to 30 months under the Rafael Voltaire framework.

25     The HSA report found that the accused’s blood alcohol level to be 127 mg/100 ml being equivalent to about 56 μg/100 ml of breath which would have placed the accused in lower end of Band 2 of the Rafael Voltaire framework with an indicative sentencing range of at least $4000 to $6000 fine and a disqualification order for a period of 30 to 36 months.

26     The Prosecution further submitted that that placement of whether the accused’s alcohol level should be under Band 1 or Band 2 of the Rafael Voltaire framework is academic since parties are aligned on quantum of fine $5,000 to be imposed for the drink driving charge under s 67(1)(b) of the Road Traffic Act 1961 (vide DAC-908588- 2023).

27     The Prosecution argued that the Defence’s submission for a disqualification period of 24 months’ is clearly inadequate as it would fall on the lower end of the range provided under Band 1 of the framework.

28     The Prosecution was of the view that a Newton hearing under 228(5) of the Criminal Procedure Code is not necessary to determine the level of alcohol found in the accused.

29     On the driving without due care and attention charge, the Prosecution referred to the case of PP v Cheng Chang Tong [2023] 5SLR 1170 at [42], where the High Court held that the sentencing framework in the High Court decision in Wu Zhi Yong v PP [2022] 4 SLR 5873 provides a useful guidance in sentencing for offences of driving without due care and attention. Further, the Prosecution referred to a recent case in Public Prosecutor v Ngo Kieng Hui (Wu Quonghui) [2024] SGDC 69 (which is pending the outcome of the appeal) to argue that the custodial threshold has been crossed and a sentence of 3 to 4 weeks’ imprisonment and the mandatory minimum disqualification order of 2 years should be imposed.

Defence’s submission on sentence and Migation

30     The accused claimed that he was reluctant to consume alcohol, and his colleagues had added liquor to his glass without his knowledge and that he had consumed ayurvedic medicines prior to the consumption of alcohol at the company party.

31     The Defence tendered a forensic report stating that the accused’s blood alcohol level attributable to the consumption of alcohol at the party is somewhere between 119.57 mg to 122.41 mg per 100 ml of blood, which is equivalent to 52 µg to 54 µg per 100 ml of breath. The Defence is also of the view that a Newton hearing is not necessary.

32     Relying on the Rafael Voltaire framework, the Defence submitted that the alcohol level of 54 µg per 100 ml of breath falls within the Band 1 of Rafael Voltaire and proposed that a fine of $5000 and disqualification of 24 months would be appropriate.

33     As for the driving without due care and attention charge, the Defence also accepted that the Wu Zhi Yong framework is applicable to offences under section 65 of the RTA citing the case of Cheng Chang Tong and argued that the seriousness of the offence is at the lower level of Band 1 and there are no offence specific aggravating factors [36] of Wu Zhi Yong or they are present only to a limited extent.

34     Defence submitted that there was no serious potential harm and danger at the time of the offence as the traffic volume was light and no pedestrians were reasonably expected to be on the road at that time. In addition, there was no serious property damage as the damage to the rear middle bumper was repaired at a cost of $1800 to which the accused has paid the full restitution to the bus company.

35     The accused also claimed that he had taken two ayurvedic medicines prior to his consumption of the whiskey and the Defence contended that his alcohol level based on the Defence forensic report should be 54 µg per 100 ml of breath which falls within Band 1 of Rafael Voltaire.

36     The accused also claimed that he was intending to charge his EV car at Vivocity before returning home, after the office party where he consumed 3 units of whiskey. After the accident, he alleged that he has no intention to leave the scene of the accident as he observed an open area beyond Keppel Road and perceived it to be safe location to stop his car to speak to the driver of the bus.

37     The Defence contended that his speeding offence antecedent was dated, and for which he was fined $900 by the court. Accused further contended that the speeding antecedent was committed under strong mitigating circumstances as he was rushing home to attend to his younger son.

38     The Defence contended that the prescribed fine under Band 1 of the Wu Zhi Yong framework of a sufficiently high fine would achieve the objective of deterrence without crossing the custodial threshold of up to one month imprisonment prescribed under Band 1 of the Wu Zhi Yong framework.

Decision

39     Both the Prosecution and Defence, in reference to the Rafael Voltaire framework, agree in relation to the quantum of the fine of $5000 for the drink driving charge. They differ only in their proposed disqualification periods.

40     The sentencing framework as established by Sundaresh Menon CJ in Rafael Voltaire for first time drink drivers with the respective indicative starting point based on the level of alcohol is set out at below.

Level of alcohol (µg per 100ml of breath)

Range of fines

Range of disqualification

36-54

$2,000-$4,000

24-30 months

55-69

$4,000-$6,000

30-36 months

70-89

$6,000-$8,000

36-48 months

≥90

$8,000-$10,000

48-60 months



41     Defence is proposing the mandatory minimum of 24 months’ imprisonment and the DPP is proposing a higher DQ period of 30 to 36 months’ imprisonment. The Prosecution’s submission fits within the range set out in the sentencing framework in Rafael Voltaire. In Rafael Voltaire at [31], the High Court set out an indicative sentencing range of least $4000-$6,000 fine and a disqualification order for a period of 30 to 36 months where the alcohol level is at Band 2 (based on the HSA report the accused’s blood alcohol level is 127 mg/100 ml which is equivalent to 56 μg per 100ml of breath).

42     I am not minded to give any weight to the Defence’s forensic report as it was based solely from the self-reporting by the accused and I agree with the Prosecution that it was tendered to downplay his culpability when the responsible thing for him to do was not to drive when he knew that he was under the influence of drink.

43     In my view there was no reasonable excuse for the accused to drive when he was clearly not in the fit state to drive as evidenced from [18] above whereby SSGT Abdul found the accused to reek of alcohol at the scene and after he was brought back to the police station, he was too drowsy to provide a specimen for the BAD test.

44     As accused was attending a company party, he could have found alternative arrangement for someone to drive him home or find alternative means to reach home instead of attempting to drive home on his own to Siglap Road with the view along the way to drive to Vivocity (which is in an opposite direction to his way home) to recharge his electric vehicle according to his mitigation plea.

45     For the above reasons, I find that the Prosecution’s submission on the drink driving charge to be appropriate and proportionate to his culpability.

46     For the driving without due care and attention charge, it is appropriate to refer to the decision in PP v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng”) at [42], where the High Court held that the sentencing framework set out in Wu Zhi Yong v PP [2022] 4 SLR 5873 at [39] provides a useful guidance in sentencing for offences of driving without due care and attention, notwithstanding the fact that the framework was promulgated for offences under s 64(2C) of the RTA.

47     In Wu Zhi Yong, Menon CJ had prescribed the sentencing approach of analysing firstly the offence-specific factors before arriving at the the following sentencing band as set out below:

Band

Degree of seriousness

Sentencing range

1

Lower level of seriousness with no offence-specific aggravating factors present or where they are present only to a limited extent. The offender’s blood alcohol level is also likely to be at the lowest or second lowest bands in the framework set out in Rafael Voltaire.

A fine of between $2,000 and $15,000 and/or up to one month’s imprisonment and a disqualification period of two to three years.

2

Higher level of seriousness and would usually contain two or more offence-specific aggravating factors. In these cases, the level of culpability and the blood alcohol level will typically both be on the higher side. Where an offender’s blood alcohol level is in the highest or second highest band of the framework in Rafael Voltaire, the case is likely to fall at least within Band 2.

Between one month’s and one year’s imprisonment and a disqualification period of three to four years.

3

The most serious cases of reckless or dangerous driving whilst under the influence of drink. In these cases, there will be multiple aggravating factors suggesting higher levels of culpability and higher alcohol levels.

Between one year’s and

two years’ imprisonment

and a disqualification

period of four to five

years.



48     Both parties refer to the framework of Wu Zhi Yong v PP [2022] 4 SLR 5873 as a guide with the Prosecution seeking 3 to 4 weeks’ imprisonment and DQ for a period of 2 years and the Defence seeking a fine of $7500 and DQ for a period of 2 years for the driving without due care and attention charge.

49     Pursuant to s 64(8) of the RTA, as the accused has also been charged with an offence under s 67 of the RTA, the accused is considered a serious offender. As the accused has a prior conviction for the offence of speeding that has not been set aside, the accused is considered a repeat offender. Therefore, the accused would be considered both a serious offender under s 65(5)(c) and a repeat offender under s 65(5)(b) of the RTA. 

50     Given the accused’s status as a serious offender and repeat offender, the accused would be liable to the sentence set out in s 65(5)(b) of RTA to a “fine not exceeding $3,000 or to imprisonment for a term not exceeding 12 months or to both”. He is additionally liable under s 65(5)(c) of the RTA to a “fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term not exceeding 12 months or to both”. From the above, the maximum sentence would be a fine of $13,000 and an imprisonment term of 24 months. Further, pursuant to s 65(6)(i) of the RTA, the court must order that the accused be disqualified from holding or obtaining a driving licence for a period of at least 2 years for all classes from the date of conviction or release (if imprisonment imposed).

51     Under the Wu Zhi Yong sentencing framework approach, the first step is to consider the offence-specific factors which relate to the manner and the mode by which the offence was committed as well as the harm caused and identify the appropriate sentencing band. The second step is to consider the aggravating and mitigating factors that are personal to the offender (Wu Zhi Yong at [30] and [48]).

Step 1: Consider the offence-specific factors

Manner and mode of offence and offender’s conduct following the offence or attempt to evade arrest

52     In the present case, the accused had consumed about three units of whiskey at a club and drove a car after he had his last drink. The accused left the club at Clarke Quay after drinking to return home at Siglap Road.

53     Instead of taking a direct route home from Clarke Quay, the accused claimed that he was driving in the direction of Vivocity to charge his EV car before returning home. When the traffic light signal turned red, the accused failed to brake in time and caused a rear-end collision with the bus in front of his car.

54     At the time of the accident, both the bus and the accused’s car were on the third lane which is a right-turn only lane. When the bus driver approached the accused’s car, the accused reversed his vehicle, signalled, switched to another right-turn only lane and drove straight towards Brani Terminal Gate 2. The accused drove straight from a right-turn only lane and while the traffic light was red. The accused had to be stopped by the security personnel at Brani Terminal. The accused is being charged separately under s 120(4) RTA for failing to obey the traffic light.

55     I did not accept the accused’s explanation that he intended to drive forward to stop at a convenient place before discussing with the bus driver. It was clearly an afterthought. There was no reason for him to reverse his car to avoid communicating with the bus driver who had already approached his car and tapping on his car to speak to the accused. The accused drove straight against the traffic light signal from a right-turn only lane risking injuring the bus driver and risking causing any major accident with any other potential vehicle that may be travelling from the direction of Keppel Road to Telok Blangah Road towards Vivocity in the green light direction.

56     I find that the accused’s conduct of failing to stop after the collision to render assistance to the bus driver and his continuing to commit a further offence as aggravating.  Further, the accused had driven about 7 kilometres, a significant distance in an inebriated state before the collision occurred.

Alcohol level

57     As held at [37] of Wu Zhi Yong and affirmed in Chen Chang Tong at [50], the level of alcohol found in the accused’s breath is critical in determining the appropriate sentencing band for the offence. The accused’s breath alcohol level is in Band 2 of the Rafael Voltaire framework, the second lowest band.

58     The property damage to the bus is not insignificant as the repair cost is $1800. It was fortuitous that the accused collided into a bigger vehicle where the damage was mitigated. In terms of potential harm and danger, notwithstanding that the traffic volume was light at 1.32 am, in my view it was fortuitous that no serious accident occurred when accused drove for more than 7 km in an intoxicated state before this incident occurred.

59     In Public Prosecutor v Ngo Kieng Hui (Wu Quonghui) [2024] SGDC 69 (case is pending the outcome of appeal), the offender similarly pleaded guilty to two charges under the RTA for drink driving and driving without due care and attention. Two other charges under the RTA were taken into consideration for the purpose of sentencing. The offender was found with 83 microgrammes of alcohol in 100 ml of breath which fell within Band 3 of the Rafael Voltaire sentencing framework. With respect to the drink driving charge, the offender was sentenced to a fine of $7,000 in default 20 days’ imprisonment and a disqualification from holding or obtaining all classes of driving licences for 42 months.

60     With respect to the driving without due care and attention charge, the court considered the offender’s high breath alcohol level, that there was some degree of potential harm to other road users as the accident had occurred in a residential area, the actual property damage caused as the LTA sign was uprooted and the offender’s motorcar sustained some damages and that the offender did not remain at the scene after the accident, in finding that the case fell within Band 2 of the Wu Zhi Yong framework and an indicative starting point of one month’s imprisonment would be appropriate.

61     In terms of offender-specific factors, the court noted that the offender had a relatively clean driving record and had pleaded guilty. However, the court also considered that the offender had not made any restitution and faced two TIC charges under the RTA. Considering these factors, the court calibrated the starting point of one month’s imprisonment downwards to two weeks’ imprisonment, being the minimum within Band 2. The court was also of the view that a period of disqualification of 30 months for all classes of vehicles from release was appropriate after having regard to both the offence-specific and offender-specific factors.

62     In the present case, considering the offence-specific aggravating factors, I am of the view that this case falls within the highest end of Band 1in Wu Zhi Yong. I find that a starting point of one month imprisonment would be appropriate.

Step 2: Consider the offender-specific factors

63     The accused was caught red-handed after his unsuccessful attempt to escape from the scene and he was stopped by the security personnel at the Brani Terminal Gate when he was clearly quite intoxicated to the point that he was unable to provide his breath for the test when he was brought back to the police station. As he was caught red-handed on the scene, I did not give much weight to his plea of guilt.

64     I noted that the accused had made restitution for the property damage caused. I also noted the Defence’s submission that the accused’s previous conviction for speeding occurred under special circumstances where his son had earlier suffered life-threatening and uncontrolled seizures and he was rushing home to administer medication to his son. Notwithstanding that this offence occurred 8 years ago, it did not detract from the fact that he was considered a repeat offender.

65     The accused had two remaining charges under the RTA, namely, one under Section 84(1)(a) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act 1961 and one under Section 84(3) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act to be taken into consideration for the purpose of sentencing

66     Considering both the mitigating and aggravating factors, a downwards adjustment to 3 weeks’ imprisonment would be appropriate.

67     As for the disqualification period, I am of the view that the mandatory minimum of 2 years would suffice.

68     I was also of the view that hardship caused to the accused arising from his custodial term and the disqualification order was not a mitigating factor as this was brought about by himself.

Conclusion

69     For the reasons set out above, I sentenced the accused to a fine of $5000 (in default 2 weeks’ imprisonment) and disqualification from driving all classes of vehicles for a period of 30 months for the drink driving charge, 3 weeks’ imprisonment and disqualification from driving all classes of vehicles for a period of 2 years for the driving without due care and attention charge, and $1000 fine (in default 3 days’ imprisonment) for the beating traffic light signal charge.

[note: 1]Forming the basis of the 3rd (DAC-908590-2023) and 4th (DAC-908591-2023) charge, that is taken into consideration for the purposes of sentencing.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20 and s 50(b) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – First offender contravened its statutory duty to ensure so far as reasonably practicable that the formwork materials that it supplied were safe when used","Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20, s 48(1) and s 50(a) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Second offender a director of a company that supplied defective formwork materials"],"date":"2024-10-11","court":"District Court","case-number":"DSC 900912 of 2021, Magistrates' Appeal No. 9202 of 2024-01","title":"Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another","citation":"[2024] SGDC 148","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32317-SSP.xml","counsel":["Delvinder Singh and Nur Ishameena for the Prosecution","Lee Wei Yung and Harpal Singh (Tito Isaac & Co) for the Accused Persons."],"timestamp":"2024-11-19T16:00:00Z[GMT]","coram":"Kow Keng Siong","html":"Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another

Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another
[2024] SGDC 148

Case Number:DSC 900912 of 2021, Magistrates' Appeal No. 9202 of 2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Delvinder Singh and Nur Ishameena for the Prosecution; Lee Wei Yung and Harpal Singh (Tito Isaac & Co) for the Accused Persons.
Parties: Public Prosecutor — Formwork Hire (S.E.A.) Pte Ltd and another

Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20 and s 50(b) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – First offender contravened its statutory duty to ensure so far as reasonably practicable that the formwork materials that it supplied were safe when used

Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20, s 48(1) and s 50(a) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Second offender a director of a company that supplied defective formwork materials

11 October 2024

District Judge Kow Keng Siong:

Introduction

1       Section 16(1)(b) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) imposes a duty on companies to ensure that the equipment which they supply is safe when properly used. Under s 48(1) of the same Act, a director can be held criminally liable for his company’s breach of s 16(1)(b). What principles are applicable when imposing sentences in connection with offences under s 16(1)(b) and s 48(1)? These are the issues raised in the present case.

2       By way of background –

(a)     I had convicted Formwork Hire (S.E.A.) Pte Ltd (“1st Accused”) after a trial of an offence under s 16(1)(b) read with s 20, and punishable under s 50(b) of the WSHA (“s 16(1)(b) offence”). This conviction stemmed from the 1st Accused’s failure to ensure that a table formwork system which it had supplied to a worksite was safe when properly used. This failure eventually contributed to the collapse of a formwork structure erected with the equipment.

(b)     At the same trial, I had also convicted Yeo Teck Soon (“2nd Accused”), a director of the 1st Accused, of an offence under s 16(1)(b) read with s 20 and s 48(1), and punishable under s 50(a) of the WSHA (“s 48 offence”). This conviction arose by virtue of the 1st Accused’s commission of the s 16(1)(b) offence.

(c)     My reasons for the above convictions have been set out in Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd & Anor [2024] SGDC 28 (“Conviction GD”).

3       Following the convictions, the parties’ provided their sentencing recommendations for the 1st Accused and 2nd Accused (collectively “Accused Persons”). These recommendations, as well as my eventual sentences, are as follows:

 

Prosecution’s recommendation

Defence’s recommendation

Sentence

1st Accused

$280,000 – $300,000

Harm – High

Culpability – Moderate

Fine

Harm – Low

Culpability – Low

$280,000

Harm – High

Culpability – Moderate

2nd Accused

6 – 8 months

Harm – High

Culpability – Moderate

Fine

Harm – Low

Culpability – Low

$150,000 i/d 150 days

Harm – High

Culpability – Low



4       In this judgement, I will explain the sentencing approach which I had adopted to derive the Accused Persons’ sentences.

1st Accused’s sentence

Applicable principles

Preliminary observation

5       I begin with the 1st Accused’s sentence. At the outset, it bears highlighting that there is no reported sentencing decision for a s 16(1)(b) offence.

Sentencing approach for WSHA offences generally

6       As such, I approached the sentencing of the 1st Accused’s offence from first principles. In this regard, I noted the following.

7        First, when imposing sentences for the WSHA offences, our courts have typically placed an equal emphasis on two offence-specific sentencing factors, namely, harm and culpability: Koh Lian Kok v Public Prosecutor [2024] SGHC 132 (“Koh Lian Kok”) at [1], [58] – [62].

8        Second, our courts have consistently adopted a two-stage sentencing approach for WSHA offences: see e.g., Public Prosecutor v Manta Equipment (S) Pte Ltd [2023] 3 SLR 327 (“Manta Equipment”) at [20] (offence under s 12(1) of the WSHA); Koh Lian Kok at [79] (offence under s 12(2) of the WSHA); Public Prosecutor v Yeduvaka Mali Naidu [2023] SLR 988 at [24] (offence under s 15(3) of the WSHA); and Mao Xuezhong v Public Prosecutor [2020] 5 SLR 580 at [64] (offence under s 15(3A) of the WSHA).

9       The two-stage sentencing approach consists of the following:

(a)      First stage – Levels of harm and culpability. At the first stage, the court determines the level of harm posed by the offence and the level of the offender’s culpability for the offence.

(i)       When evaluating the level of harm, the following factors are typically considered: (1) The seriousness of the harm risked; (2) The likelihood of that harm arising; (3) The number of people likely to be exposed to the risk of the harm; and (4) The actual harm that is occasioned. Considerations (1), (2) and (3) relate to the level of potential harm arising from a s 16(1)(b) offence: Koh Lian Kok at [79(b)], Neo Ah Luan v Public Prosecutor [2018] 5 SLR 1153 at [67], and Chen Song v Public Prosecutor [2024] SGHC 129 at [130].

(ii)       When evaluating the level of culpability, the following factors are considered: (1) The number of breaches; (2) The nature of the breaches; (3) The seriousness of the breaches (i.e., whether they are a minor departure from the established procedure or whether they are a complete disregard of the procedures); (4) Whether the breaches are systemic or are part of an isolated incident; and (5) Whether the breaches are intentional, rash, or negligent: Koh Lian Kok at [79(c)].

(b)      First stage – Sentencing matrix – Starting point sentence. After evaluating the levels of harm and culpability, the court will then derive a starting point sentence based on a matrix of indicative sentences.

(i)       For an example of such a matrix that is applicable to a breach of s 12(2) by a natural person, see the following from Koh Lian Kok at [79]:

 

Culpability

Harm

 

Low

Moderate

High

Low

Fine up to $75,000

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

Moderate

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

High

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

More than 12 months and up to 24 months’ imprisonment



(ii)       For an example of a sentencing matrix that is applicable to a breach of s 12(1) by a legal person, see the following from Manta Equipment at [28]:

 

Culpability

Harm

 

Low

Moderate

High

High

$150,000 to $225,000

$225,000 to $300,000

$300,000 to $500,000

Moderate

$75,000 to $150,000

$150,000 to $225,000

$225,000 to $300,000

Low

Up to $75,000

$75,000 to $150,000

$150,000 to $225,000



(c)      Second stage. At the second stage, the court will adjust the starting point sentence by considering the offender-specific aggravating and mitigating factors that are present in the case: Koh Lian Kok at [79(e)] and [79(f)].

(i)       The aggravating factors include the following: (1) The offender’s lack of remorse; (2) The presence of relevant antecedents; and (3) Offences taken into consideration for the purpose of sentencing.

(ii)       The mitigating factors include the following: (1) Voluntary steps taken to remedy the problem; (2) High level of co-operation provided to the investigating authorities beyond that which is normally expected; (3) Self-reporting and acceptance of responsibility; and (4) Timely plea of guilt.

Two-stage sentencing approach is applicable to a s 16(1)(b) offence

10     In my view, the two-stage sentencing approach can be applied to a s 16(1)(b) offence. My reasons are as follows.

(a)      First, the sentencing objectives for a s 16(1)(b) offence are the same as those for the other WSHA offences in [8] above (“other WSHA offences”) – i.e., deterrence and retribution.

(b)      Second, the sentencing factors for the other WSHA offences in [9(a)] above are also applicable to a s 16(1)(b) offence.

(c)      Third, after considering the legislative intent behind WSHA, the High Court has held that the two-stage sentencing approach “should in principle apply to all Part 4 offences punishable under s 50 of the [WSHA]”: Manta Equipment at [39]. A s 16(1)(b) offence is an offence under Part 4.

(d)      Finally, the parties had adopted the two-stage sentencing approach when making their sentencing recommendations.[note: 1]

Sentencing matrices

11     The next issue is what sentencing tariffs are applicable to a s 16(1)(b) offence. Regarding this, I noted that the sentencing matrices in [9(b)] above had been specifically formulated for other WSHA offences – and not for a s 16(1)(b) offence. As such, I am not bound to apply them when sentencing the 1st Accused. That said, in the absence of guidance from the High Court, I found these matrices to be useful reference points for sentencing a s 16(1)(b) offence. After all, these matrices are based on s 50 of the WSHA – which is the same punishment provision in the present case.

Applying the principles

Level of harm

12     Applying the two-stage sentencing approach to the present case, I am of the view that the level of potential harm arising from the 1st Accused’s offence is “High”.[note: 2] My reasons are as follows.

(a)      Seriousness of the harm risked. The 1st Accused had supplied materials which contained numerous serious defects: see [15(a)] below. This is highly dangerous given that the Supplied Materials were to be used to construct a ramp and driveway of a nine-storey warehouse development.[note: 3]

(b)      Likelihood of harm arising. There is a real likelihood that a formwork structure constructed with such defective materials might collapse, e.g., due to the materials’ inability to bear heavy loads and to withstand high levels of stress. Indeed, this was precisely what had happened – the defects in the Supplied Materials had contributed to the collapse of a table formwork structure on 2 April 2016.[note: 4] Based on the photos, the collapse was extensive.[note: 5]

(c)      Number of people exposed to the risk of the harm. At the time of the collapse, a team of at least five workers were doing casting work on the section next to the Collapsed Formwork.[note: 6] Anyone of them could have been seriously injured by the collapse.

(d)      Actual harm that materialised. Fortunately, there was only one casualty. A worker fell from the Collapsed Formwork and had to be sent to hospital. He was discharged from hospital two days later and given 14 days’ medical leave. (It is unclear from the evidence what was the nature and extent of the worker’s injuries.)

13     At this juncture, I wish to respond to the Defence’s submission that the level of harm should instead be classified as “Low”. This submission is based on the following:[note: 7]

(a)     The 1st Accused did not have control and supervision over the Worksite where the Supplied Materials were erected and kept.

(b)     There were safety lapses by other parties at the Worksite which had been contributed to the collapse.

(c)     There was no evidence that the injured worker was wearing safety harness at the material time.

14     I rejected the above submission.

(a)      First, the matters raised by the 1st Accused are not relevant to the level of harm posed by their offence. At best, these matters are relevant to the level of the 1st Accused’s culpability.

(b)      Second, it bears emphasis that the 1st Accused had been convicted on the basis that (i) it had supplied formwork materials which were not safe when properly used, and (ii) such materials had contributed to the collapse of a formwork structure. The 1st Accused was not convicted of having caused either the collapse or the worker’s injuries.

Level of culpability

15     Next, I turn to the level of the 1st Accused’s culpability. In my view, this should fall within the “Moderate” range. My reasons are as follows.

(a)      Number and seriousness of the breaches. The Supplied Materials had several serious defects:[note: 8]

(i)       The weld joints of the scaffold frames had numerous weld defects such as porosities, slag inclusions, wide root gap, and lack of fusion.

(ii)       The weld joints of the scaffold frames and spigots had cracks which were pre-existing and due to corrosion fatigue.

(iii)       Some scaffold frames had severe corrosion with significant wall thinning to perforation.

(iv)       Most of the scaffold frames were not galvanised and had corroded surfaces.

(v)       Corroded surfaces were painted over without any due consideration for risk assessment or inspection.

(vi)       The connecting spigots had varying amount of pearlite in the microstructures and hardness strengths.

(b)      Nature of the breaches. I agreed with the Prosecution that[note: 9] –

The breaches go towards the very nature of FHS’s business activity. When hired to supply formwork parts, the basic expectation would be to ensure that the parts and components were safe, and without risk to health. This was also the fundamental failure of the charge that FHS had been convicted of. As these formwork materials and components were to be used to construct support structures, the structural integrity must not be compromised in any way. This was crucial to ensure the safety and health of the workers carrying out work around the formwork structure.

[emphasis in original text]

(c)      Whether the breaches are systemic/isolated. I also agreed with the Prosecution that the 1st Accused’s safety lapses were not “isolated”.[note: 10]

(i)       I say this because the Supplied Materials had been delivered over a long period of time (between 3 to 30 March 2016) via numerous deliveries (33 delivery orders). Furthermore, it was not disputed that for 18 of these deliveries, the 1st Accused’s production supervisor did not check the materials before certifying them to be in order: Conviction GD at [6] and [51(b)]. Finally, investigations conducted after the collapse revealed that an extensive number of the materials were corroded.

(ii)       That said, I would disagree with the Prosecution’s submission that the 1st Accused was not concerned as to whether the materials were safe for use. I had found that the 1st Accused did put in place measures to check for – and to prevent – defective formwork materials from being supplied: see Conviction GD at [45] and [46]. Unfortunately, due to lack of effective supervision, these measures had not been dutifully followed by its workers at the material time: Conviction GD at [48] to [52].

(d)      Whether the breaches are intentional, rash, or negligent.

(i)       The Prosecution submitted that the 1st Accused had “intentionally” breached s 16(1)(b) as it had “knowingly painted over the corroded parts instead of testing if the materials were of adequate strength before supplying these formwork materials”. According to the Prosecution, the painting over of the corroded parts was akin to a “deliberate concealment” of the 1st Accused breach of s 16(1)(b).[note: 11]

(ii)       Presumably, the Prosecution was relying on evidence which showed that the frames of the Collapsed Formwork had corroded and pitted surfaces which were “obvious on inspection”, and that these surfaces had been painted over: see Conviction GD at [8(e)], [51(a)].

(iii)       If so, then I am of the view that such evidence did not conclusively prove that at the time of the deliveries, the 1st Accused and their workers had “intentionally” supplied defective materials. This is because the same evidence in (ii) above could also support the inference that the 1st Accused and their workers had wrongly assessed the materials to have only minor defects and thus could be re-used: see Conviction GD at [52] – esp. [52(c)].

(iv)       It is unclear whether the defects in the materials and the risks of using them (1) were within the subjective consciousness of the 1st Accused and their workers, or (2) were so obvious that a reasonable person would have to have paused and considered the matter, and would not have ignored it: Jali bin Mohd Yunos v Public Prosecutor [2014] 4 SLR 1059 at [21], [22], [28], [29] and [32]. Given the state of the evidence, I decided to give the 1st Accused the benefit of doubt and found that the breaches were committed negligently instead of rashly.

Starting point sentence

16     Based on my assessment that the levels of harm and culpability is “High” and “Moderate” respectively, I agreed with the Prosecution that the starting point sentence for the 1st Accused’s offence should be $280,000.

Adjustment for offender-specific factors

17     I next considered whether the starting point sentence ought to be adjusted on account of offender-specific factors relating to the 1st Accused.

18     In this regard, I noted the following submissions by the 1st Accused:[note: 12]

(a)     Until the collapse, the 1st Accused had been in the business of supplying formwork materials for more than 23 years without any accident (“1st Consideration”).

(b)     The 1st Accused had received several business industry awards from 2009 to 2016. The most recent being the 2016 Enterprise 50 Award (“2nd Consideration”).

(c)     As a result of the collapse, the 1st Accused had lost local contracts (“3rd Consideration”).

19     I am of the view that the above considerations did not warrant a reduction in the starting point sentence. My reasons are as follows:

(a)     Regarding the 1st Consideration, the mere fact that the 1st Accused was a first offender carried very little weight in the present case – given that the extent of the breach was extensive and was not an isolated incident: see [15(c)] above.

(b)     As for the 2nd Consideration, there is nothing to suggest that the industry awards had anything to do with the 1st Accused’s management of safety matters. Even if there is such evidence, these awards are of little mitigating value unless they were given to the 1st Accused for having gone above and beyond the safety requirements imposed by law. An offender should not be given a sentencing discount for simply having complied with the law – something that he is obliged to do in the first place.

(c)     Regarding the 3rd Consideration, the hardship suffered by the 1st Accused is a natural consequence of them having breached s 16(1)(b). This hardship is not mitigating.

(d)     Finally, and in any event, the 1st to the 3rd Considerations do not in any way diminish the need for a deterrent sentence to be imposed. A high fine will change the perception that fines are just a form of compliance costs: see [23] above: Public Prosecutor v Sindok Trading Pte Ltd [2022] 5 SLR 336 (“Sindok Trading”) at [77].

Sentence imposed

20     Given the absence of applicable offender-specific factors, I sentenced the 1st Accused to a fine of $280,000.

2nd Accused’s sentence

21     Next, I turn to the 2nd Accused’s sentence.

Applicable principles

Section 48(1)

22     It is useful to begin by considering the language in s 48(1). It states –

Where an offence under this Act has been committed by a body corporate, an officer of the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves that —

(a)    the offence was committed without his consent or connivance; and

(b)    he had exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

[emphasis added]

23     In essence, s 48(1) holds an “officer” accountable for WSHA offences committed by his company. The rationale behind this was explained during the Second Reading of the Workplace Safety and Health Bill by the then-Minister for Manpower as follows:

To engender a strong safety culture, commitment of top management is critical. Hence, the Bill holds managers and directors of companies accountable for safety and health practices at their workplaces under clause 48, even though managers may not be able to police safety and health on the ground. This means that even though physical supervision of workers may be delegated, management must show that they have taken active steps to implement sound OSH management systems, including proper risk assessments and reporting systems, provide adequate resources, and ensure that full information is disseminated to workers and other persons exposed to risks.

The purpose behind s 48(1) is clear. Additionally, I noted that companies seek to maximise profits and reduce costs. Some companies may see fines as being no more than a form of compliance costs. If the potential profits outweigh the expected fines, such companies may take the risk of breaching the WSHA. Section 48(1) can address this mindset by making a director personally liable for his company’s breaches.

24     While the purpose behind s 48(1) is clear, it is unclear what considerations apply when sentencing an officer (“O”) for an offence committed by his company (“C”) (“Issue”). Thus far, the Issue appears to have eluded judicial guidance in Singapore.

Culpability – Key consideration

25     In my view, the following are relevant considerations when sentencing s 48(1) offences:

(a)     It is settled law that a sentence must be commensurate with the extent of an offender’s culpability. It is also well established that an offender’s culpability is closely linked to the extent to which he is aware of the circumstances surrounding his offence: see e.g., Sentencing Principles in Singapore (Academy Publishing, 2019) (“Sentencing Principles”) at [11.044(d)]; Public Prosecutor v Tan Thian Earn [2016] 3 SLR 269 at [17] and [47]; Public Prosecutor v Bong Sim Swan, Suzanna [2020] SGCA 82 at [88] and [90(c)]; Nicholas Tan Siew Chye v Public Prosecutor [2023] SGHC 35 at [77];

(b)     Following from the above, there are at least three scenarios in which O can be involved in C’s breach of s 16(1)(b). (The level of O’s culpability for the breach can be very different across these scenarios.)

(i)        Scenario 1. Under the first scenario, O “consents” to C committing the breach: see s 48(1)(a). This happens when O knows of the material facts and explicitly agrees to C committing the breach: Abdul Ghani bin Tahir v Public Prosecutor [2017] 4 SLR 1153 (“Abdul Ghani”) at [99] and [100]; Chua Hock Soon James v Public Prosecutor [2017] 5 SLR 997 (“Chua Hock Soon”) at [203] and [204]; Public Prosecutor v Tan Seo Whatt Albert [2019] 5 SLR 654 (“Tan Seo Whatt”) at [35] – [39]. In other words, O would have intended for C to breach s 16(1)(b) under Scenario 1.

(ii)        Scenario 2. Under the second scenario, O “connives” at C’s breach of s 16(1)(b): see s 48(1)(a). This happens when O is aware of what is going on, can do something to prevent the breach – but turns a blind eye and does nothing. In other words, O has allowed the breach to be committed: Abdul Ghani at [99]; Chua Hock Soon at [204]; Tan Seo Whatt at [41]; Public Prosecutor v Okonkwo Gabriel [1993] 2 SLR(R) 256 at [41]; Public Prosecutor v Iryan bin Abdul Karim [2010] 2 SLR 15 at [123] and [124].

(iii)        Scenario 3. Under the third scenario, O fails to exercise due diligence that could have prevented C’s breach of s 16(1)(b): see s 48(1)(b). This occurs where, for example, O knows or ought to know of the existence of facts requiring him to take safety measures – but fails to do so because he is either negligent or rash: Abdul Ghani at [63].

Among the three scenarios, O’s culpability is the highest in Scenario 1 and the lowest in Scenario 3.

(c)      Third, it bears noting that C and O can breach s 16(1)(b) with different mental states and in different circumstances. Let me illustrate this with two examples. In both examples, assume that O is C’s Chief Operating Officer.

(i)        Example 1. O knows that C’s materials are unsafe. (This knowledge is based on, e.g., frequent reports and complaints that O has received about the materials, as well as his visits to the warehouse.) To save on costs, O instructs his foreman that unsafe materials are to be supplied to the customers. In such a case, both O and C will have breached s 16(1)(b) intentionally.

(ii)        Example 2. O fails to ensure that there is an effective system of safety checks that C’s materials must undergo before they are supplied to the customers. When preparing materials for delivery, C’s foreman detects major defects in some of them. He nonetheless approves them for delivery to a customer. While the foreman – and by implication, C – may have intentionally or knowingly supplied unsafe materials, the same cannot be said of O. O does not have any personal knowledge of the delivery in question. O’s role in the breach of s 16(1)(b) lies in his neglect in implementing an effective safety system.

(d)      Finally, it is also relevant to note that different “officers” within the same company can have different degrees of control and responsibility for the company’s safety matters – and thus can have different levels of culpability for their company’s breach of s 16(1)(b). This is clearly reflected in s 48(1). That provision states that a court is to have regard “to the nature of [the officer’s] functions” in determining whether he is liable for the company’s offence.

26     In summary –

(a)     One cannot assume that the level of C’s and O’s culpability for a breach of s 16(1)(b) will always be the same.

(b)     In determining the level of O’s culpability, it is important to consider (i) what is his role within C regarding safety matters, and (ii) how material is his (mis)conduct to C’s breach of s 16(1)(b). In the case of Scenarios 1 and 2, O’s motive for agreeing to the breach or allowing it to occur is also a relevant sentencing consideration. For instance, if O’s conduct is motivated by financial or other benefits, then this is a culpability-enhancing factor. I should add that the mere fact that O’s conduct is not motivated by any gain per se is a neutral sentencing factor – and not a culpability-reducing factor: see e.g., Chiew Kok Chai v Public Prosecutor [2019] 5 SLR 713 at [67(f)].

Two-stage sentencing approach

27     In the above discussion, the level of harm does not feature in the above analysis on s 48. This is not surprising given that the level of harm for O’s offence is an objective and unchanging factor – it is pegged to the level of harm arising from C’s conduct.

28     As stated earlier, our courts have typically given equal emphasis to both harm and culpability and have applied the two-stage approach when sentencing WSHA offences: [7] to [9] above. In line with this, I am of the view that the following approach can be adopted when sentencing an offender under s 48(1):

At the first stage

(a)     The court determines the following:

(i)       The level of harm posed by C’s offence, and

(ii)       The level of O’s culpability for the offence.

(b)     When determining the level of O’s culpability, the considerations in [9(a)(ii)] above continues to be relevant.

(c)     After determining the levels of harm and culpability, the court will then derive a starting point sentence. As stated in [11] above, reference can be made to the matrix in [9(b)(i)] – bearing in mind of course that the matrix is not binding.

At the second stage

(d)     The court will adjust the starting point sentence based on the offender-specific aggravating and mitigating factors relevant to O.

Avoid double punishment

29     Finally, it bears emphasis that when both C and O are to be sentenced for the same WSHA offence, a court should assess whether C is essentially O’s alter ego. This is because if the answer is “yes”, then a court should not impose deterrent sentences on both C and O – as doing so would be a breach of the principles of totality and against double punishment: Lim Kopi Pte Ltd v Public Prosecutor [2010] 2 SLR 413 at [18]; Sindok Trading at [109].

Applying the principles

30     I will now show how the above principles had been applied in the 2nd Accused’s case.

Level of harm

31     Following from [27] above, the level of harm for posed by the 2nd Accused’s offence is “High”.

Level of culpability

32     In my view, the level of the 2nd Accused’s culpability should be assessed to be “Low”. My reasons are as follows:

(a)     The 2nd Accused’s case fell within Scenario 3: see [25(b)(iii)] above. There is no evidence that he had either consented to (Scenario 1), or connived at (Scenario 2), the 1st Accused’s breach of s 16(1)(b).

(b)     The 2nd Accused’s liability is akin to that in Example 2: see [25(c)(ii)] above. There is no evidence that he was personally aware of the defects in the Supplied Materials before they were delivered to the Worksite. The 2nd Accused’s offence lies in (i) failing to ensure that his workers had dutifully complied with the safety measures and (ii) failing to implement a more robust checking system before the Supplied Materials were delivered to the Worksite: see Conviction GD at [51] to [53]. There is no evidence to show that the 2nd Accused had fostered a culture of indifference to safety consciousness in his company.

(c)     On the contrary, the evidence revealed that the 2nd Accused had tried to ensure that the safety measures were implemented by personally visiting the warehouse and storage areas and randomly selected formwork materials for testing: Conviction GD at [45(d)].

Starting point sentence

33     Based on my assessment that the levels of harm and culpability are “High” and “Low” respectively, I was of the view that the starting point sentence for the 2nd Accused should be $150,000.

34     In arriving at this sentence, I was mindful that the 2nd Accused’s culpability essentially stemmed from one of negligence/omission, and that there was no evidence to show that he had been personally involved in, or had been aware of, the delivery of defective materials to the Worksite. While these factors are relevant to sentencing, I am of the view they should not be given undue weight. This is because a clear message must be sent that save in exceptional circumstances, officers who have the final say on safety matters in their company will be held fully accountable for safety lapses and accidents. The proverbial buck stops with them. Officers should not be allowed to rely on their own negligence/omission to defeat Parliament’s intent of making them liable for WSHA breaches by their companies: see [23] above. Fines imposed on officers such as the 2nd Accused must have deterrent effect.

35     I am also mindful that the starting point sentence of $150,000 is below the tariffs (of between $175,000 to $200,000) set in Koh Lian Kok: see [9(b)(i)] above. As stated in [11] above, these tariffs are useful references only and are not binding on me. Furthermore, and in any event, tariffs set in guideline judgements such as Koh Lian Kok are not cast in stone and should not be applied mechanically.

Adjustment for offender-specific factors

36     I will now address the issue of whether there are offender-specific factors in the 2nd Accused’s case that warrant an adjustment to the starting point sentence.

37     In this regard, I noted the Prosecution’s submission that the 2nd Accused was not remorseful his offence and that this was an aggravating factor. The Prosecution highlighted two points to substantiate their position.

(a)      First, the Prosecution had to expend considerable time and resources at the trial to rebut the 2nd Accused’s case that they had done all that they could to ensure that their formwork materials were safe for use.

(b)      Second, the 2nd Accused had pushed the blame for the collapse to EC Builders and Precise – namely, for having used insufficient bracings to erect the formwork structure.[note: 13]

38     I am unable to agree with the Prosecution.

(a)     I did not find that the 2nd Accused had conducted his defence in an egregious manner so as to warrant an enhancement in sentence: Sentencing Principles at [20.214] to [20.243].

(b)     There is evidence to show that the 2nd Accused did put in place some measures to check for, and to prevent, defective formwork materials from being supplied: Conviction GD at [45] – [47].

(c)     It is also undisputed that 25% of the cross bracings were missing from the formwork.[note: 14]

39     I find that there are no offender-specific factors in the 2nd Accused’s case.

40     Accordingly, I imposed a sentence of $150,000, i/d 150 days’ imprisonment. In arriving at the above sentence, I noted that there is no evidence or submission that the 1st Accused is the alter-ego of the 2nd Accused. As such, the issue of double punishment is not engaged: [29] above.

Conclusion

41     The above are my reasons for the Accused Persons’ sentences.

[note: 1]Prosecution’s Address on Sentence dated 18 June 2024 at [5], [7] to [10]; Accused Persons’ Mitigation dated 21 June 2024 at [32] to [36], [39], [58], [67], [74], [88] and [89].

[note: 2]

[note: 3]Statement of Undisputed Facts Between the Prosecution and the Defence dated 29 May 2023 at [2] and [5].

[note: 4]See Conviction GD at [69] – [79].

[note: 5]See e.g., Agreed Bundle of Documents at pages 4, 5, 7 to 11, 16; Forensic Engineering Assessment of Collapsed Formwork Structure at 47 Jalan Buroh exhibited as AB1-M1 at pages 16 – 19.

[note: 6]Agreed Bundle of Documents at page 50 (Statement of Facts at [3]).

[note: 7]Accused Persons’ Mitigation dated 21 June 2024 at [36] to [38], [41], [47], [54], [55], [77] – [79], and [87].

[note: 8]See Conviction GD at [8], [28] – [37], [57] – [59].

[note: 9]Prosecution’s Address on Sentence dated 18 June 2024 at [22(ii)].

[note: 10]Prosecution’s Address on Sentence dated 18 June 2024 at [22(iv)].

[note: 11]Prosecution’s Address on Sentence dated 18 June 2024 at [22(v)].

[note: 12]Accused Persons’ Mitigation dated 21 June 2024 at [68] to [71].

[note: 13]Prosecution’s Address on Sentence dated 18 June 2024 at [38].

[note: 14]Accused’s Closing Submissions dated 9 January 2024 at [32], [102], [103], [110], [280] – [283]. Forensic Engineering Assessment of Collapsed Formwork Structure at 47 Jalan Buroh exhibited as AB1-M1 at pages 10 – 13.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Appeals","Criminal Law – Offences – Property – Cheating"],"date":"2024-11-11","court":"District Court","case-number":"District Arrest Court Case No DAC 933117 of 2019 and 4 Others, Magistrate's Appeals No 9205 of 2024-01 and 02","title":"Public Prosecutor v Jeremy Francis Cruez","citation":"[2024] SGDC 293","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32464-SSP.xml","counsel":["Matthew Choo and Chaye Jer Yuan (Attorney-General's Chambers) for the Public Prosecutor","A. Revi Shanker (ARShanker Law Chambers) for the Accused."],"timestamp":"2024-11-16T16:00:00Z[GMT]","coram":"Lim Tse Haw","html":"Public Prosecutor v Jeremy Francis Cruez

Public Prosecutor v Jeremy Francis Cruez
[2024] SGDC 293

Case Number:District Arrest Court Case No DAC 933117 of 2019 and 4 Others, Magistrate's Appeals No 9205 of 2024-01 and 02
Decision Date:11 November 2024
Tribunal/Court:District Court
Coram: Lim Tse Haw
Counsel Name(s): Matthew Choo and Chaye Jer Yuan (Attorney-General's Chambers) for the Public Prosecutor; A. Revi Shanker (ARShanker Law Chambers) for the Accused.
Parties: Public Prosecutor — Jeremy Francis Cruez

Criminal Procedure and Sentencing – Sentencing – Appeals

Criminal Law – Offences – Property – Cheating

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9205/2024/01-02.]

11 November 2024

District Judge Lim Tse Haw:

Introduction

1       The Accused, Jeremy Francis Cruez (a male Sri Lanka national now of 60 years of age) (“the Accused”), pleaded guilty before me to one charge under section 417 of the Penal Code (Cap 224, 2008 Revised Edition)(“the Penal Code”) summarised as follows:

1st charge (DAC-933117-2019)

Between 13 April 2017 and 3 April 2018, on 24 different incidents, the Accused cheated Major’s Pest Management Services Pte Ltd (the “Company”) by deceiving the Company into believing that it had to pay a total amount of $118,384 for supplies, a fact which the Accused knew to be false, and by such manner of deception, the Accused intentionally induced the Company to deliver a total of $118,384 to him, which the Company would not have done had it not been so deceived, and which incidents taken together amounted to a course of conduct, and the Accused had thereby committed an offence punishable under s 417 of the Penal Code, which charge was amalgamated under s 124(4) of the Criminal Procedure Code 2010 (“CPC”)(“the proceeded cheating charge”).

2       The following four charges were taken into consideration (“TIC”) with the consent of the Accused for the purpose of sentencing:

(a)     Two similar charges of cheating the Company under s 417 of the Penal Code read with s 124(4) of the CPC, amounting to $35,458 and $36,613.60 respectively;[note: 1]

(b)     One charge of forgery for the purpose of cheating the Company, involving $3,430.95, an offence under s 468 of the Penal Code;[note: 2] and

(c)     One charge of theft of 41 blank invoices from Da Zhou Trading (“Da Zhou”), an offence under s 380 of the Penal Code.[note: 3]

3       Having considered all relevant sentencing considerations, I sentenced the Accused to six months’ imprisonment.

4       Being dissatisfied with the sentence imposed, both the Accused and Prosecution have appealed against the same.

Background

5       The Accused had initially claimed trial to all the above five charges before another district judge on 13 September 2021. The three cheating charges proceeded with were then under s 420 of the Penal Code, which offence is punishable with imprisonment of up to ten years and a liability to a fine. According to the Prosecution, the trial proceeded for 18 days. However, on 25 June 2024, the Accused decided to plead guilty before me as set out in [1] and [2] above.

Statement of Facts

6       The Accused admitted to the statement of facts[note: 4] without any qualification summarised as follows:

7       The Company has two departments which deal in Pest Management and Fumigation respectively.[note: 5]

8       The Accused started his employment with the Company from 3 June 2011. He was initially employed as a Business Development Manager. Sometime in end 2016, the Accused was concurrently appointed as the Fumigation Manager in charge of the Fumigation Department. Owing to the Accused’s offending, his employment was terminated on 10 December 2019.[note: 6]

9       As the Fumigation Manager, the Accused led a team of Fumigators who performed fumigation works as contracted. The Accused was responsible for ensuring that the supplies required for the fumigation works were obtained. These supplies included, amongst others, canvases, probes, canisters of gases, thermometer, and compressors.[note: 7]

10     The Accused was required to seek approval for the purchase of the supplies before the purchase was made. This included submitting an invoice in support of the purchase. He then presented invoices to the Company’s administrative staff for payment processing.[note: 8]

11     Between 13 April 2017 and 22 October 2019 (both dates inclusive), the Accused sought 46 different disbursements from the Company for payment to six different suppliers for fumigation related supplies, namely Lain Heng Canvas & Hardware Trading Pte Ltd (“Lain Heng”),[note: 9] Apple Graphic Pte Ltd (“Apple Graphic”), Parisilk Sealants Pte Ltd (“Parisilk”), WKS Industrial Gas Pte Ltd (“WKS Industrial”)[note: 10] and Da Zhou [note: 11]. The Accused submitted the above invoices purportedly from these suppliers in support of his claims.[note: 12]

12     When the Accused was questioned by the Company’s managing director as to why the suppliers required payment in cash for the disbursements, the Accused explained that these suppliers were always paid in cash during the Company’s previous managing director’s time. He then provided emails from the suppliers who purportedly requested for payment in cash or for the cheque to be addressed to one Myrna who was stated to be an “executive in charge of accounts” in the emails.[note: 13] However, Myrna was a close friend of the Accused and at the material time, she was employed as a domestic helper. She was never in the employ of any of the suppliers stated in [11] above.[note: 14]

13     On each occasion, the Accused represented to the Company that the disbursement was for an order of supplies for the indicated type and quantity from a particular supplier as reflected in the invoices. The Company believed that the amounts it disbursed were paid to the suppliers above, and that the supporting invoices submitted were genuine. In total, the Company disbursed $190,455.60 as payment for the supplies to the Accused and/or Myrna.[note: 15]

14     In reality, the invoices submitted by the Accused were either fake or forged. No such company as Lain Heng existed, and the invoices of Apple Graphic, Parisilk, WKS Industrial and Da Zhou were forged. In respect of the invoices of Lain Heng, Apple Graphic, Parisilk and WKS Industrial, the Accused obtained these invoices from an unknown individual. The Accused knew that the invoices were either fake or forged.[note: 16]

15     To ensure that the Fumigators received the required supplies for the fumigation works, the Accused purchased the required supplies from other suppliers. He then marked up the price he paid by 5% in the fake or forged invoices, pocketing the difference, tabulated as follows:[note: 17]

Charge

Invoiced Amount

Mark Up

The proceeded cheating charge

$118,384

$5,919.20

2nd cheating charge

$35,458

$1,772.90

3rd cheating charge

$36,613.60

$1,830.68

Total

$190,455.60

$9,522.78



16     Hence, for the proceeded cheating charge, between 13 April 2017 and 3 April 2018, on 24 different incidents, the Accused deceived the Company into believing that it had to pay the amounts as stated above to Lain Heng for supplies, a fact which he knew to be false, and which incidents taken together amounted to a course of conduct.[note: 18] The Accused did so by presenting invoices of Lain Heng and requested for payment of the invoiced supplies. The Accused knew that no such company as Lain Heng existed, and the invoices submitted were false. The Accused thereby intentionally induced the Company into disbursing a total of $118,384 to him via cash cheques as payment, which the Company would not have done were it not so deceived, and which act caused damage to the Company’s property.

17     The total amount marked up along with the claim made using a forged Da Zhou invoice[note: 19] was $12,953.73.[note: 20]

18     The Prosecution informed that one day before the matter was fixed for mitigation and submissions on sentence, on 21 October 2024, the Accused had approached the Investigation Officer and offered to make restitution of the sum of $12, 953.73. However, the Company had refused to accept any restitution.[note: 21]

Antecedent

19     The Accused was a first-time offender.

Prosecution’s Submissions on Sentence

20     The Prosecution submitted for an imprisonment term of between 14 to 16 months on the following grounds:[note: 22]

(I)   General Deterrence the Dominant Sentencing Principle

21     The Prosecution submitted that the Accused’s offending was premeditated and sophisticated, and warranted the imposition of a deterrent sentence, relying on PP v Law Aik Meng [2007] 5 SLR(R) 814 (“Law Aik Meng”) at [24] and [25(d)].[note: 23]

22     The Accused’s offending was premeditated which involved significant planning, as follows:[note: 24]

(a)     He had to first obtain fake or forged invoices from an unknown individual to support his claims for payment to the purported suppliers for fumigation-related equipment. The Accused also ensured that the fake or forged invoices contained a 5% mark-up from the actual amount spent to allow him to pocket the difference between the actual amount he paid for the fumigation supplies and the invoiced amount;

(b)     Thereafter, he then submitted these fake or forged invoices to the Company’s administrative staff for payment processing in order to have the Company disburse payment for the purported supplies;

(c)     Finally, the Accused procured the fumigation-related equipment required for the Fumigators to carry out the contracted fumigation works. This not only ensured the continuity of the Fumigators’ works, but also the continuity of the Accused’s scheme.

23     The Accused’s offending was also sophisticated as he took active steps to ensure the continuity of his scheme and worked against its unravelling as follows:[note: 25]

(a)     By procuring the equipment and actually carrying out the fumigation works, the Accused allowed for his scheme to run undetected under the Company’s nose for three years[note: 26], such that they were none the wiser that the Accused had submitted fake or forged invoices;

(b)     The Accused was also shrewd in providing emails purportedly from the suppliers when he was questioned by the managing director of the Company, on why the suppliers required payment in cash cheques. These emails convinced the Company that the suppliers indeed required payment in cash or for the payments to be addressed to Myrna who was falsely represented to be an “executive in charge of accounts”. In reality, the payments by the Company went to the Accused who either encashed the cash cheque or got Myrna to encash the cheques and handed the money to him.

(II)   Substantial Sum Involved an Aggravating Factor

24     For cheating offences, the amount involved was a key sentencing consideration (PP v Fernando Payagala [2007] 2 SLR(R) 334 at [47]). The Accused’s offences involved a substantial amount of $190,455.60. The custodial threshold was clearly crossed given that the Company parted with significantly more than negligible value (Idya Nurhazlyn bte Ahmad Khir v PP [2014] 1 SLR 756 at [47])(“Idya Nurhazlyn”).[note: 27]

25     The Prosecution submitted that the Court should focus on the amount cheated by the Accused from the Company. While the Accused’s provision of the fumigation-related equipment did allow for the Company to carry out its fumigation works as required, this was also part of how the Accused was able to continue his scheme undetected, and his way of making personal gains by marking up the invoices. Seen in that light, the Accused’s personal gain from his offending was S$12,953.73.[note: 28]

(III)   The Accused Cannot Be Treated as a First-time Offender

26     For an offender like the Accused who faced numerous charges, the Prosecution submitted that he cannot be considered a first-time offender (Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 343 at [17]). The Accused’s offending spanned three years from 2017 to 2019 for which he faced numerous different charges. Hence, he should not be considered a first-time offender.[note: 29]

(IV)   Sentence Sought In Line with Precedents

27     The Prosecution submitted that the sentence they sought for was in line with reported precedents as follows:[note: 30]

Case Name

Brief Facts

Sentence

Remarks

Idya Nurhazlyn

Cheating offences involving $1000 and $15,000.

Custodial sentences of 4 and 8 months’ imprisonment were imposed.

Observation by the High Court in Idya Nurhazlyn at [47].

PP v Hogberg Marc Eric Rickard

[2020] SGDC 203

The offender pleaded guilty (“PG”) on the second day of trial to a s-417 charge for deceiving the victim of S$50,000 for the purchase of shares of a company that the offender was purportedly a shareholder of. One similar charge under s-417 involving S$25,000 was TIC.

The offender made full restitution of both sums.

5 months’ imprisonment.

The appeal against sentence was dismissed by the High Court.

PP v Tan Hwee Ngo

[2020] SGDC 277

(“Tan Hwee Ngo”)

The offender claimed trial to, inter alia, one charge under s- 417 of the Penal Code (Cap. 224, Rev. Ed. 1985) (“PC 1985”) in a long-drawn fraud perpetrated against a single victim over 13 years.

The s 417 PC 1985 charge pertained to cheating the victim into withdrawing S$53,131.64 from his CPF account.

Negligible restitution of between S$2,000 and S$5,000 was made.

6 months’ imprisonment.

(The prescribed punishment for s-417 of the PC 1985 was up to 1 year imprisonment or fine or both).

The appeal was dismissed by the High Court.

PP v Chen Chen Chang (unreported – cited in Tan Hwee Ngo at [138])

The offender PG to 6 counts of s- 417 charge involving a total of S$66,027.50 for cheating his company on 24 occasions over a period of three years into paying commissions to himself when it was meant to be paid to individuals who had introduced business to the company.

A total of 17 counts of s 417 charges were TIC.

The total loss was S$138,102.50.

Full restitution was made.

Sentences of 2 and 5 months’ imprisonment were imposed for a global sentence of 12 months.

The Prosecution recognised that this was an unreported precedent but highlighted the case as it bore much factual similarity to the present case.

The Prosecution submitted that the sentence to be imposed in the present case must be higher than that in Chen, since the number of cheating occasions was higher (46 versus 24) and the amount cheated was similarly higher (S$190,455.60 versus S$138,102.50)[note: 31]



(V)   Sentence Reduction on Guilty Plea

28     As the present case pre-dated the commencement of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentences for Guilty Pleas (“the Guidelines”) which took effect 1 October 2023, the Prosecution’s position was that the Guidelines do not apply. However, if it did, they submitted that present came under Stage 4 of the Guidelines for up to a maximum of 5% reduction given that the Accused had pleaded guilty on or after the first day of trial.[note: 32]

Accused’s Plea in mitigation and Submissions on Sentence

A   Preliminary Comment

29     Having read the Mitigation and Submission on Sentence[note: 33] (“Mitigation”) submitted by Counsel for the Accused, Mr A. Revi Shanker (“Mr Shanker”), I informed Mr Shanker that his Mitigation was so convoluted and verbose (and often with grammatical errors) that I had difficulty understanding what he was trying to submit.[note: 34] By way of illustration, paragraph 1 of his Mitigation reads as follows:

“With the greatest of respect, the most untoward thing is not the qualification of the plea by our client (AP- here in after)--- for 60 years (DOB-17 September 1964) of age separated from Wife and Children, Keith and kin, for years at least since November 2019 (from 27 November 2019- Date-of-Arrest) and being on special pass, which prohibits gainful employment by Law, compelling him to live at the mercy of friends and relatives whose assistance is only, not unexpectedly, thinning away such that his queues for food (breakfast, lunch and dinner) on a daily basis at religious place of worship and other organizations have become more frequent, ejusdem generis, his family (wife and children) too are struggling back in Sri Lanka with income from AP who was the sole breadwinner in all these years (at least till November 2019) such that genuineness to dispose off maters is pressing coupled with contriteness to say the least--- but is the manner or content of the charge(s) as framed (especially the three s 417 charges even after the amendments);” (sic)[note: 35]

30     After I confirmed with Mr Shanker that he himself had drafted the Mitigation, I asked Mr Shanker to summarise orally at the hearing on 22 October 2024 what he was trying to submit as the Accused’s plea in mitigation and submission on sentence, so that I do not misunderstand him. Mr Shanker then summarised it as follows:[note: 36]

Counsel’s Summary on Plea in Mitigation and Submissions on Sentence

The Accused Was Not Qualifying His Plea

31     Mr Shanker clarified that the Accused was not qualifying his plea and he was no longer submitting that s 124(4) of the CPC should not apply to the proceeded cheating charge as the period of offence, namely 13 April 2017 to 3 April 2018, predated 31 October 2018, the date on which s 124(4) of the CPC came into effect.[note: 37] It was quite clear to me that the High Court in PP v Loh Cheok San [2023] SGHC 190 at [62][note: 38] was merely saying that the doubling of the court’s sentencing jurisdiction for amalgamated charges as provided for in s 124(8) of the CPC only applies to acts which take place on or after 31 October 2018, and not that s 124(4) of CPC is not applicable to such acts. On the face of the proceeded cheating charge, it was quite clear that the Prosecution was not invoking the doubling of the court’s sentencing jurisdiction for this charge under s 124(8) of the CPC.

The Defence Was Submitting For a Fine Only

32     Mr Shanker next clarified that he was submitting for a fine to be imposed on the Accused on the following grounds:

(1)   Relying on Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523[note: 39] (‘Glenn Knight”)

33     Mr Shanker submitted[note: 40] that just like in Glenn Knight, as the Prosecution in the present case had decided to proceed on the “intentionally induces” limb under s 415 of the Penal Code and not the “higher limb” of “ fraudulently or dishonestly induces”, it was “trite that if mens rea is lower the sentence too should be lower; in other words the gravity of the charge is lessened to that extent”. In Glenn Knight, a sentence of a fine of $7000 was imposed by the High Court on appeal for the s 417 charge. He then submitted for a fine “in excess of $7000 should suffice” as the “impugned amount” was $5919.20 and not $112,464.80 as submitted by the Prosecution.[note: 41]

(2)   No Loss was Suffered by the Company

34     Finally, Mr Shanker submitted that no loss was suffered by the Company as the Accused was ready and prepared to make full restitution to the Company, but it was the Company which refused to accept restitution.

My Decision

The Defence’s Submission For a Fine Was Not Appropriate

35     Mr Shanker’s reliance on Glenn Knight to submit for a fine to be imposed in the present case was clearly misguided for the following reasons:

(a)      Glenn Knight was a case of attempted cheating under s 417 of the 1985 PC. Hence no loss was suffered by the intended victim. [note: 42] In contrast, the Company in the present suffered a total wrongful loss of $12,953.73 (see [17] above);

(b)     The maximum imprisonment term for the attempted cheating charge under s 417 of the 1985 PC was six months[note: 43], as compared to the maximum term of three years for the proceeded cheating charge;

(c)     The offender in Glenn Knight had a distinguished record of public service.[note: 44] Whereas whatever contributions the Accused may have had to the Company, if any, was limited to the Company only; and

(d)     In Idya Nurhazlyn, Sundaresh Menon CJ held that a custodial sentence will generally be appropriate as long as the offence in question causes a victim to part with property that has more than negligible value.[note: 45]

36     Further, it would be incorrect for Mr Shanker to submit that the Company did not suffer any loss because Accused was ready and able to make restitution to the Company. This is because the Company did suffer wrongful loss to the tune of $12,953.73 as a result of the Accused’s crimes. The fact that the Accused was willing and able to make full restitution to the Company merely meant that the Accused was prepared to mitigate the loss suffered by the Company, but did not mean that the Company did not suffer any loss at all in the first place. In any event, I was prepared to sentence the Accused on the basis that full restitution was intended to be made by the Accused as it was the Company who refused to accept the restitution offered. However, in view of the lateness of the offer to make full restitution to the Company, i.e. almost five years after he was charged in court on 29 November 2019 and after 18 days of trial, the mitigating value is low (see PP v S. Iswaran [2024] SGHC 251 at [134]) (“S. Iswaran”). [note: 46]

The Prosecution’s Submission For 14-16 months’ Imprisonment Was Manifestly Excessive

37     I agreed with the Prosecution’s submissions that general deterrence must be the dominant sentencing principle in this case as the Accused’s offending was premeditated and sophisticated, involving significant planning (see [21] to [23] above).

38     However, while the total amount delivered to the Accused as a result of his deception was a relevant sentencing factor, it cannot be considered in isolation from other facts pertaining to the case. What was more significant was the wrongful loss suffered by the Company, which was S$12,953.73 (see [25] above).

39     In this regard, in Idya Nurhazlyn, a sentence of three months’ imprisonment was upheld by Sundaresh Menon CJ when the offender plead guilty to, inter alia, a charge under s 417 of the Penal Code for using a dud cheque to cheat the victim of $10,509. Full restitution was made in that case. Sundaresh Menon CJ held (Idya Nurhazlyn at [49] to [51]) that using a financial instrument such as a dud cheque was an aggravating factor in that case. There was no such aggravating in the present case.

40     The wrongful loss suffered by the Company in the present case, S$12,953.73 was higher than that in Idya Nurhazlyn. Although there was no use of a dud cheque to cheat by the Accused, there were other aggravating factors present as follows:

(a)     The large quantum delivered to the Accused, the premeditation and the sophistication of the Accused’s cheating modus operandi as highlighted in [21] to [23] above;

(b)     There was an element of a betrayal of trust by the Accused. As a long-time employee of the Company, the Accused had betrayed the trust that the Company had reposed in him to carry out his duties in the Company faithfully and honestly, when he cheated the Company instead;

(c)     The offences also took place over a prolonged period of more than 2.5 years from 13 April 2017 to 22 October 2019.[note: 47]

41     Hence, in my judgement, the above aggravating factors warranted an uplift of the sentence of three months’ imprisonment imposed in Idya Nurhazlyn to six months for the present case. In my view, the aforesaid aggravating factors did not justify a sentence of 14-16 months’ imprisonment as submitted by the Prosecution. Had the Accused pocketed the entire sum of S$190,455.60 and left the Company in a lurch by not carrying out any of the fumigation works, then perhaps a sentence of 14-16 months’ imprisonment as sought for by the Prosecution would be appropriate.

42     The above sentence would not be out of synch with the sentencing precedents cited by the Prosecution as summarised in [27] above:

(a)     In Hogberg, the total sum delivered to the offender (and also the wrongful loss suffered by the victim) was $75,000 (including the TIC charge), which was much higher than the present case. The offender had deceived the victim into paying him to buy shares of a company which the offender did not own. The case did not appear to feature the same sophistication and planning found in the present case. The offender PG on the second day of the trial and made full restitution. The sentence of five months’ imprisonment was upheld on appeal;

(b)     In Tan Hwee Ngo, six months’ imprisonment was imposed on the offender who was convicted after trial of cheating the victim of $53,131.64 of his CPF monies. This sum would also be the wrongful loss suffered by the victim. Although the punishment for s 417 offence under PC 1985 was only up to one year imprisonment, the facts of this case were clearly more aggravating than the present case, as the wrongful loss caused to the victim was much higher, comprising his CPF monies and the offender did not PG. There was also negligible restitution. The sentence was similarly upheld on appeal.

(c)     In Chen Chen Chang- the Prosecution recognised that this was an unreported case. However, a quick glance at the brief facts prepared by the Prosecution would show that this case is distinguishable from the present case as the total loss suffered by the company was $138,102.50, far higher than the actual loss of S$12,953.73 in the present case. It would not be appropriate for the Prosecution to use the sum of $190,455.60 delivered to the Accused for comparison as it was not the actual loss suffered by the Company in the present case. In any event, I note that there was no appeal against the global sentence of 12 months’ imprisonment imposed by the district court.

43     Finally, as the present case pre-dated the Guidelines, I agreed with the Prosecution that the Guidelines did not apply to the present case (see [28] above). Nevertheless, I did factor in some discount in sentencing in the six months’ imprisonment imposed on the Accused on account of his plea of guilt, albeit after 18 days of trial (see [5] above).

Conclusion

44     Lawyers and prosecutors would do well to prepare their written submissions in plain English and easy to read manner. This would save much valuable judicial time in reading and understanding the submissions.

45     Both the Accused and Prosecution, being dissatisfied with the above sentence, have appealed against the same. The Accused is currently serving his sentence although bail pending these appeals was offered to him on his application.

[note: 1]DAC 933411/2019 (“the 2nd cheating charge”) and DAC 933412/2019 (“the 3rd cheating charge).

[note: 2]DAC 906879/2020 (“the forgery charge”).

[note: 3]DAC 906880/2020.

[note: 4]PS1

[note: 5]Ibid. at [2].

[note: 6]Ibid. at [4].

[note: 7]Ibid. at [5].

[note: 8]Ibid. at [6].

[note: 9]These formed the subject matters of the proceeded cheating charge and the 2nd cheating charge.

[note: 10]The purported payments to Apple Graphic, Parisilk and WKS Industrial formed the subject matter of the 3rd cheating charge.

[note: 11]This formed the subject matter of the forgery charge.

[note: 12]PS1 at [7].

[note: 13]Ibid. at [8].

[note: 14]Ibid. at [3(c)].

[note: 15]Ibid. at [9].

[note: 16]Ibid. at [10].

[note: 17]Ibid. at [11].

[note: 18]Ibid. at [12].

[note: 19]The subject matter of the forgery charge.

[note: 20]PS1 at [16].

[note: 21]See Notes of Evidence (“NE”) on 22 October 2024, page 1, line 16 to page 2, line 3.

[note: 22]The Prosecution’s Skeletal Address on Sentence (“PSS”) at [1].

[note: 23]Ibid. at [2].

[note: 24]Ibid. at [3].

[note: 25]Ibid. at [4].

[note: 26]Ibid. at [7].

[note: 27]Ibid. at [5].

[note: 28]Ibid. at [6].

[note: 29]Ibid. at [8].

[note: 30]Ibid. at [9].

[note: 31]Ibid. at [9(b)(iii)].

[note: 32]Ibid. at [10].

[note: 33]D1.

[note: 34]NE on 22 October 2024, page 6 line 17 to page 7 line 28.

[note: 35]D1 at [1].

[note: 36]NE on 22 October 2024, page 6 line 19 to page 10 line 18.

[note: 37]D1 at [1] to [3].

[note: 38]Ibid at Tab 1.

[note: 39]Ibid at Tab 8.

[note: 40]Ibid at [7].

[note: 41]Ibid at [4] and [5].

[note: 42]Glenn Knight at [1].

[note: 43]Ibid at [1].

[note: 44]Ibid at [27].

[note: 45]Idya Nurhazlyn at [47].

[note: 46]D1 at Tab 25.

[note: 47]See PS1 at [7].

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Public Prosecutor v Tan Jun An Jason
[2024] SGDC 289

Case Number:District Arrest Case No 918786 of 2021, Magistrate's Appeal No. 9204-2024-01
Decision Date:11 November 2024
Tribunal/Court:District Court
Coram: James Elisha Lee
Counsel Name(s): Deputy Public Prosecutor Gabriel Lee (Attorney-General's Chambers) for the Public Prosecutor; Mr Sinnadurai s/o T Maniam (Rex Legal Law Corporation) for the Accused.
Parties: Public Prosecutor — Tan Jun An Jason

Criminal Law – Offences – Driving Without Reasonable Consideration for Other Persons Using the Road Causing Grievous Hurt

Criminal Procedure and Sentencing – Sentencing – Road Traffic Act 1961

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9204/2024/01.]

11 November 2024

District Judge James Elisha Lee:

Introduction

1       The accused, Tan Jun An Jason, a male 30-year-old Singaporean (“the Accused”), had initially claimed trial to 1 charge under s 65(1)(b) p/u s 65(3)(a) r/w s 65(6)(d) of the Road Traffic Act (“RTA”) for driving a motor car without reasonable consideration for other persons using the road along the Central Expressway by making an abrupt lane change which resulted in a collision with a motorcycle and consequently causing grievous hurt to the motorcycle rider. He pleaded guilty to the charge on the first day of the scheduled trial.

2       The prescribed punishment under s 65(3)(a) of the RTA is a fine not exceeding $5,000 or imprisonment not exceeding 2 years. The court is also to, unless it for special reasons thinks fit to order otherwise, make an order for disqualification from obtaining or holding all classes of driving licence (“DQ”) for 5 years under s 65(6)(d) of the RTA.

3       After having heard and considered the Prosecution’s submissions on sentence and the mitigation plea, I sentenced the Accused to 7 months and 2 weeks imprisonment and 5 years’ DQ with effect from the date of release.

4       The Accused being dissatisfied filed an appeal against his sentence. He is currently on bail pending appeal.

5       These are the grounds for the sentence imposed.

The Charge

6       The charge read as follows:

DAC 918786 of 2021

You…are charged that you, on 18 April 2021, between 8.40pm to 8.52pm, along the Central Expressway (“CTE”) towards the Seletar Expressway (“SLE”) near the 0.8km mark, Singapore, did drive a motor car bearing registration number SFX6606R (“the Car”) on a road without reasonable consideration for other persons using the road, to wit, by making an abrupt lane change from lane 3 to lane 2 of the CTE, which resulted in a collision with a motorcycle bearing registration number JMB4708 that was travelling in lane 2 of the CTE, and consequently, caused grievous hurt to the rider of the said motorcycle, one Beh Chai Bek (55-year-old male at the time of the offence), and you have thereby committed an offence under s 65(1)(b) punishable under s 65(3)(a) read with s 65(6)(d) of the Road Traffic Act (Cap 276, 2004 Rev Ed).

Statement of Facts

7       The Statement of Facts which the Accused admitted to without qualification is summarised as follows.

First information report

1.    On 18 April 2021, at about 8.52pm, one Mr Ben Yang called ‘999’ and reported the following, “One car hit a motorbike. The motorcyclist is injured.” The incident location was provided as the Ayer Rajah Expressway (“AYE”) towards Central Expressway (“CTE”), before the tunnel at the Clemenceau Exit.

Facts pertaining to the charge

2.    Investigations revealed that on 18 April 2021, at about 8.00pm, the accused left his house at Block 701 West Coast Road, Singapore, and drove towards Jalan Membina, Singapore. The accused had used the directions from the map on his Waze application throughout the journey – from the AYE towards the CTE; and thereafter, from the CTE towards the Seletar Expressway (“SLE”), where the accident occurred.

3.    At about 8.40pm, the accused was travelling, at a speed of 90km/h to 100km/h, in lane 1 of a three-lane road along the CTE, in the direction towards the SLE. Towards the exit to Outram Road, the map on his Waze application prompted him to take the said exit. The accused thus made a lane change to the left to exit onto Outram Road. While he was in the midst of changing lanes from lane 2 to lane 3, the map on his Waze application suddenly re-routed. This prompted the accused to abruptly change lanes from lane 3 to lane 2 along the CTE, in front of a lorry which was travelling in lane 2.

4.    As a result of the abrupt lane change, the Car collided into the Motorcycle which was travelling in front of the said lorry in lane 2 of the CTE. The accused would have been able to see the Motorcycle when he was behind the lorry. As the result of the collision, the victim fell off the Motorcycle and landed on the road between lanes 1 and 2. When the collision occurred, there were other vehicles travelling behind the victim. The accused eventually stopped the Car on the road shoulder of the expressway and alighted from the vehicle. He saw the victim lying on the road.

5.    The in-car footage from a vehicle that was travelling in lane 1 of the CTE, behind the Car and the Motorcycle, captured the accident.

6.    The victim was subsequently conveyed by ambulance to the Emergency Department of the Singapore General Hospital (“SGH”). On clinical examination, multiple abrasions and superficial lacerations were noted over the victim’s right upper lip, left upper eyebrow and eyelid, left shoulder, right posterior flank, bilateral knees and toes of both feet. X-rays of the chest and pelvis were performed as well as a CT pan-scan and the following injuries were noted:

a.    left facial bone fractures involving the zygomatic arch and fronto-zygomatic process;

b.    displaced fractures of the second to fifth ribs on the left, and non-displaced fractures of the sixth to eight ribs on the left;

c.    mild left posterior chest wall haematoma and mild haemothorax; and

d.    left lung contusions.

9.    X-rays of the extremities were performed in view of pain and swelling over the victim’s hands and feet, and the following injuries were noted:

a.    left foot 5th metatarsal head/neck fracture;

b.    right hand 2nd metacarpal base fracture;

c.    left foot 5th toe distal phalanx fracture;

d.    left 4th toe metatarso-phalangeal joint dislocation;

e.    left foot possible cuboid fracture; and

f.    comminuted fracture of left proximal fibula.

10.    The victim subsequently underwent the following procedures and courses of treatment:

a.    a minimally invasive procedure involving the injection of local anaesthesia, to control the pain brought about by the rib fractures;

b.    application of a dutch boot cast to the left lower limb, to immobilise the left lower leg and foot;

c.    application of a resting wrist splint on the victim’s right hand, to facilitate the healing of the hand fracture.

11.    The victim’s lacerations were sutured in the Accident & Emergency Department and the facial fracture was managed conservatively.

12.    The victim was hospitalised from 18 April 2021 to 11 May 2021, and was on hospitalisation leave from 18 April 2021 to 15 September 2021.

13.    Based on the victim’s last review in Rehabilitation Medicine clinic on 10 August 2021, no permanent disability was identified.

14.    The Vehicle Damage Report for the Car (dated 19 April 2021) stated that there were scratches and dents on the rear right passenger door and rear right tyre. Additionally, the Vehicle Damage Report for the Motorcycle (dated 19 April 2021) stated that there were scratches and dents on the left side, front left handlebar, side mirror and the front mudguard. The final cost of repairs for the Motorcycle was S$4,400.

15.    At the time of the accident, the weather was fine, road surface was dry and the traffic flow was moderate.

Antecedents

8       The Accused is untraced.

Overview Of the Parties’ Positions On Sentence

Prosecution’s Address on Sentence

9       The Prosecution, applying the sentencing framework set out in the High Court’s decision in Chen Song v PP [2024] SGHC 129 (“Chen Song”) had submitted for an imprisonment term of between 7.5 to 9.5 months imprisonment with 5 years’ DQ.

The Mitigation Plea

10     The Defence had submitted for a Mandatory Treatment Order (“MTO”) to be issued, and in this regard had submitted for an MTO suitability report to be called. In the alternative, they had submitted for an imprisonment term of 6 months with 5 years’ DQ[note: 1].

11     In support of their submission for an MTO, the Defence had tendered a psychiatric report by Dr Rajesh Jacob from Promises Healthcare / Winslow Clinic who had diagnosed the Accused as suffering from Major Depressive Disorder (“MDD”). Dr Jacob had opined that there was a significant contributory link between the Accused’s MDD and the offence and that at the material time, the Accused was experiencing auditory hallucinations which had distracted him during driving which led to the accident.

12     The Prosecution had objected to the calling of an MTO suitability report. They had tendered a psychiatric report by Dr Cheok Cheng Soon Christopher (“Dr Cheok”) of the Institute of Mental Health (“IMH”) which stated that while the Accused was suffering from Persistent Depressive Disorder (“PDD”) and Alcohol Use Disorder (“AUD”) there was no contributory link between the Accused’s condition and the offence.

Sentencing Considerations

13     The 2 issues which had arisen, in view of the submissions by parties were as follows:

(a)     Whether a MTO suitability report should be called in respect of the Accused.

(b)     The appropriate sentence for this case based on the application of the Chen Song sentencing framework.

Whether a MTO suitability report should be called

14     As set out at paragraph 11 above, Dr Jacob had opined that there was a significant contributory link between the Accused’s psychiatric condition and the offence. He had also opined that at the material time, the Accused was experiencing auditory hallucinations which had distracted him during driving which led to the accident[note: 2].

15     Dr Jacob’s opinion that the Accused was experiencing auditory hallucinations at the material time appear to be based on what the Accused had informed him over 3 interview sessions and his interviews with the Accused’s wife and mother. According to Dr Jacob’s report, the Accused had started hearing a male unknown voice in 2020 “which used to shout at him or talk to him in a derogatory manner and saying that he was worthless, and he is a burden to others.” The Accused reported telling his wife about the voice in early 2021 and that he would sometimes respond back to the voice. He also reported that the intensity of the voice increased after his wife gave birth which was 1 week before the accident[note: 3].

16     The Accused’s account was corroborated by his wife and mother[note: 4].

17     Dr Jacob had made no mention in his report, however, of the fact that the Accused had reacted to a sudden re-routing on the Waze app which the Accused was using at the material time, a fact which had been admitted to by the Accused without any qualification in the SOF. According to Dr Jacob’s report, the SOF was amongst the sources of information he had relied upon. It was unclear from the report, however, whether Dr Jacob had considered this fact in his assessment that it was the auditory hallucinations which the Accused had claimed to be labouring under which had led to the accident. It was pertinent that Dr Jacob had also not referred to the Accused’s statements to the police in the preparation of his report as, according to his report, the statements were not available[note: 5]. It was not in dispute that the Accused had made no mention of the auditory hallucinations in his statements to the police.

18     The Defence had had the opportunity to obtain a clarificatory report from Dr Jacob. No such report was tendered.

19     The Prosecution had tendered a psychiatric report by Dr Cheok of IMH which had stated that while the Accused was suffering from Persistent Depressive Disorder (“PDD”) and Alcohol Use Disorder (“AUD”) there was no contributory link between the Accused’s condition and the offence[note: 6].

20     Dr Cheok had opined that there was no contributory link between the Accused’s condition and the offence. According to the report, in his interview with Dr Cheok, the Accused had informed that he heard “random thoughts” in his head and had shouted back at the “voice”. He had also informed Dr Cheok that he “lost concentration on the road” and that he had responded to his navigation app re-routing and hit the motorbike as a result[note: 7].

21     Dr Cheok had observed that despite his psychiatric symptoms, the Accused was able to work and drive a car. There was also no substantial impairment of his ability to look after himself. Dr Cheok expressed doubt that the Accused was distracted by hallucinations at the time. He observed, firstly, that the Accused had not reported the hallucinations in his statements to the police. Secondly, the Accused had reported that the so-called voices were experienced in the head. According to Dr Cheok, a typical auditory hallucination is experienced as coming from outside the body[note: 8].

22     The Defence disputed certain factual aspects of Dr Cheok’s report in the mitigation pleas[note: 9]. These relate in the main to what the Accused had informed Dr Cheok regarding his alcohol consumption patterns and what the Accused’s mother had informed regarding the Accused’s condition from childhood. The Accused also claimed, in response to Dr Cheok’s explanation why he did not believe that the Accused was distracted by hallucinations at the material time, that he had informed Dr Cheok that he heard voices in his head and talking to him as if it was through the outside.

23     With regards to the factual disputes concerning Dr Cheok’s report raised by the Accused, Dr Cheok, in his clarificatory report had stated that he stood by what he had written in his earlier report and explained that in expressing an expert opinion, information gathered is synthesized and analysed. As such, the relevant paragraphs setting his opinion are not records of factual information[note: 10].

24     I had accepted Dr Cheok’s explanation and clarification. In any case, the information concerning the Accused’s alcohol consumption pattern did not appear to have a material effect on the assessment of whether his mental condition had a contributory link to the offence by both Dr Jacob and Dr Cheok.

25     I was therefore inclined towards accepting the opinion of Dr Cheok over that of Dr Jacob, who did not appear to have fully considered the facts and circumstances in forming his opinion that the Accused was experiencing auditory hallucinations at the material time. In particular, he did not appear to have considered that the Accused had not reported any such hallucinations in his statements to the police. More importantly, Dr Jacob did not appear to have taken into account the fact that the Accused had admitted to reacting to the sudden re-routing of the Waze app which then led to the accident.

26     I also did not accept the Accused’s assertion that he had failed to report any such hallucinations in his statements to the police out of fear of the stigma associated with mental illness[note: 11]. Given the circumstances, withholding such a vital piece of information, assuming it was true, would have been an illogical and irrational course. I was, instead, of the view that the real reason why the Accused had failed to report that he had been distracted by hallucinations was because he was in fact not labouring under such hallucinations at the material time. My view was further buttressed by the fact that the Accused was able to react almost immediately to the sudden re-routing of the Waze app, something which I find difficult to reconcile with the Accused’s assertion that he was labouring under auditory hallucinations at the time.

27     I accepted therefore Dr Cheok’s opinion that there was no contributory link between the Accused’s psychiatric condition and the offence. Under s339(3) of the CPC, a court may make a MTO only if the psychiatric condition is a contributing factor for an accused person committing the offence. In the circumstances, I declined therefore to call for a MTO suitability report.

Application of the Chen Song sentencing framework

28     The sentencing framework for the offence has been comprehensively set out in the recent High Court decision in Chen Song. The framework is summarized at [134] as follows:

(a)     First, the court is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability”.

(b)     Second, based on the number of offence-specific factors present, the court is to determine whether the harm caused is “lesser harm” or “greater harm” and whether the culpability of the offender is “lower culpability” or “higher culpability” and thereafter arrive at the sentencing band the offence falls within. To recapitulate, “lesser harm” is caused, and the offender’s culpability is deemed as “lower culpability” where there are 0–1 harm or culpability factors respectively. “Greater harm” is caused, and the offender’s culpability is deemed as “higher culpability” where there are 2 or more harm or culpability factors respectively.

Band

Circumstances

Sentencing Range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability Or Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



(c)     Third, after determining the indicative sentencing band that the offence falls within, the court should identify an indicative starting point sentence within that range, taking into account: (a) all the primary harm factors and the culpability factors identified; and (b) the secondary harm factors (see [125] above).

(d)     Fourth, the court is to make adjustments to the starting point to take into account the usual gamut of offender-specific aggravating and mitigating factors.

29     The High Court also held at [137] that the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present.

30     Under the framework, the first step is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability”. The harm factors are classified into primary and secondary harm factors. The High Court had set out at [127] 3 broad primary harm factors pertain directly to the injury suffered and include:

(a)      Nature and location of the injury: This factor focuses on the precise nature and the location of the injury. This requires a consideration of: (i) the nature and severity of injury (eg, simple or complex and extent of injury, etc); (ii) the number of injuries; (iii) whether surgical intervention was necessary (or whether the injuries were treated conservatively); (iv) the disposition of the victim post- surgery (eg, general ward, high dependency or intensive care unit); and (v) the location of the injury (eg, vulnerable location).

(b)      Degree of permanence: This factor considers whether the injury or injuries caused to the victim are permanent or transient. Permanent injuries include loss of a limb or permanent privation of the sight of either eye or the hearing of either ear, etc.

(c)      Impact of injury: This factor contemplates the impact of the injury on the victim’s quality of life. Here, considerations of: (i) the duration of stay in the hospital/rehabilitation centre; (ii) duration of any hospitalisation/medical leave; (iii) ability to carry out daily tasks and maintain livelihood; and (iv) duration of rehabilitation (if any), are relevant.

31     The victim in the present case had suffered multiple fractures on his face, ribs, head/neck, hands and feet. He had also sustained haematoma on his chest wall, mild haemothorax and lung contusions. A minimally invasive procedure for the injection of anaesthesia to control the pain from the rib fractures was performed. The victim had been hospitalised for 24 days and was on hospitalisation leave thereafter for a further 127 days. He had had to wear a boot cast on the left lower limb and a resting writs splint on his right hand to facilitate healing. The victim did not, however, suffer any permanent injury.

32     The secondary harm factors, which are unrelated to the physical injuries suffered by the victim, but which nonetheless go towards the extent of harm caused, include:

(a)     potential harm; and

(b)     property damage.

33     The repair cost for the victim’s motorcycle was $4,400.

34     In terms of culpability factors, the High Court had set out at [131] a non-exhaustive list of factors as follows:

(a)     Any form of dangerous driving behaviour. For instance:

(i)       speeding;

(ii)       driving against traffic;

(iii)       driving when not fit to drive;

(iv)       driving under the influence of alcohol or drugs;

(v)       sleepy driving;

(vi)       driving while using a mobile phone;

(vii)       swerving in and out of lanes;

(viii)       using a vehicle in a dangerous fashion; and

(ix)       street racing.

(b)     Flouting of traffic rules and regulations. For instance:

(i)       failing to stop at a stop line;

(ii)       failing to conform to traffic signal;

(iii)       not forming up correctly to execute a turn;

(iv)       changing lanes across a set of double white lines/chevron markings; and

(v)       making an illegal U-turn/right turn.

(c)     High degree of carelessness: This is demonstrated where there was a prolonged or sustained period of inattention (as opposed to a momentary lapse of attention), and where the offender was deliberately cavalier about certain mitigatable risks. As stated in Sue Chang at [95], it would also be relevant to consider the extent to which the offender’s distraction was avoidable and the extent to which the offender’s mis-judgment was reasonable.

35     The High Court also held at [133] that “in assessing the offender’s culpability, it is also important for the sentencing court to be alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness. The conduct of the victim or third parties may in certain circumstances be considered at this juncture in the calibration of the offender’s culpability.”

36     Turning to the facts of the present case, the Accused was travelling at a speed of between 90 to 100 km/h at the material time. Parties were agreed that the speed limit at the material time was 90 km/h. The Accused had therefore been travelling marginally above the speed limit at the material time.

37     From the in-car video footage of the vehicle travelling behind the Accused at the material time, it was also apparent that the Accused had overtaken the lorry from the left in a sudden manner and close to an expressway exit. Vehicles travelling on the main carriage way would not have expected exiting vehicles to suddenly move in the manner the Accused’s vehicle did. That, in my view was a dangerous manoeuvre on the part of the Accused.

38     As for the usage of the Waze app, the court recognised that the use of navigation apps or other similar in-car navigation systems was a part of modern driving. The onus, however, remained on the driver to maintain proper attention on the traffic conditions. Any situation arising from the use of navigation apps or systems cannot be justification for any form of unsafe or careless driving. In the present case, the Accused had failed to pay adequate attention to the other vehicles on the road and had reacted in a dangerous manner to the sudden re-routing on the Waze app. This, in my view, was a relevant culpability factor.

39     Based on the above, I was of the view that there were clearly 2 harm factors present. The injuries sustained by the victim was serious and extensive. The impact of the injuries on the victim was also severe. As for the culpability factors, while there were 2, namely driving above the speed limit and reacting in an unsafe manner whilst using the Waze app, I was of the view that they were of a limited degree. The Accused was driving at a speed that was marginally above the speed limit at the material time. Although the Accused had reacted in an unsafe manner to the Waze app re-route, it was also apparent from the in-car video footage that the victim had changed lanes without signaling. This was not disputed by the Prosecution.

40     Both the Prosecution and the Defence were of the view that the present case falls under Band 2 of the Chen Song framework. The Prosecution has situated the case at the upper-middle portion while the Defence had submitted that it should be at the lowest end.

41     Based on the harm and culpability factors in the present case, I was of the view that the indicative starting point sentence should be 8 months imprisonment.

42     The Accused had pleaded guilty, albeit on the first day of trial. Under the SAP PG Guidelines, a sentencing discount of up to 5% may be applied. He is also untraced. As for the Accused’s psychiatric condition, I was of the view that no mitigatory weight should be attached in view of my finding that there was no contributory link with the offence.

43     As for the period of DQ, pursuant to s 65(6)(d) of the RTA a mandatory 5-year disqualification period applies “unless the court for special reasons thinks fit to not order or to order otherwise”. In Lee Shin Nan v Public Prosecutor [2023] SGHC 354, it was held (at [79]) that special reasons will generally be found only if the court is satisfied that the offender drove in circumstances that reasonably suggest:

(a)     it was necessary to do so in order to avoid other likely and serious harm or danger; and

(b)     there was no reasonable alternative way to achieve this end.

44     No such circumstances existed in our present case. I was also of the view that there were no other special reasons warranting a departure from the mandatory period of DQ under s 65(6)(d).

Sentence Imposed

45     In the circumstances, the Accused was sentenced to 7 months and 2 weeks imprisonment and 5 years’ DQ with effect from the date of release.

46     The Accused being dissatisfied with the decision had lodged an appeal against his sentence. He is currently on bail pending appeal.

[note: 1]NE for FM(Mitigation & Sentencing) on 8 July 2024 at page 11.

[note: 2]Report by Dr Jacob dated 26 June 2023 at [21].

[note: 3]Report by Dr Jacob dated 26 June 2023 at [14].

[note: 4]Report by Dr Jacob dated 26 June 2023 at [16] and [17].

[note: 5]Report by Dr Jacob dated 26 June 2023 at [5].

[note: 6]Report by Dr Cheok dated 8 May 2024 at [13].

[note: 7]Report by Dr Cheok dated 8 May 2024 at [10].

[note: 8]Report by Dr Cheok dated 8 May 2024 at [16] and [19]..

[note: 9]See written mitigation pleas dated 3 & 23 July 2024.

[note: 10]See Clarification Report by Dr Cheok dated 12 August 2024.

[note: 11]See 2nd mitigation plea dated 23 July 2024 at [17].

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Public Prosecutor v Ge Xin and others
[2024] SGMC 78

Case Number:Magistrate Arrest Case No 902315 of 2024 & Ors, Magistrate Summon Charge 900588 of 2024 & Ors, Magistrate Summon Charge 900617 of 2024 & Ors
Decision Date:08 November 2024
Tribunal/Court:Magistrate's Court
Coram: Ong Luan Tze
Counsel Name(s): Mr Christopher Ong, Mr Norman Yew and Mr Lee Da Zhuan (Attorney-General's Chambers) for the Public Prosecutor; Mr Dhillon Surinder Singh (Dhillon & Panoo LLC) for the Accused.
Parties: Public Prosecutor — Ge Xin — MT Gadget+ Pte Ltd — Grandnew Pte Ltd

Criminal Law – Statutory offences – Copyright Act

Criminal Procedure And Sentencing – Sentencing

8 November 2024

District Judge Ong Luan Tze:

1       This was the first case to be dealt with for copyright infringement offences under s 150(1) of the Copyright Act 2021 (“CA”), involving the commercial dealing of illicit streaming devices.

2       Mr Ge Xin (“B1”) was the registered owner and director of MT Gadget+ Pte Ltd (“MT Gadget”), while his wife was the registered owner and sleeping director of Grandnew Pte Ltd (“Grandnew”). At all material times, B1 was the directing mind and controller of the business of MT Gadget and Grandnew. In these court proceedings, B1 was also the representative for MT Gadget and Grandnew.

3       MT Gadget pleaded guilty to infringing the copyright in the following works by dealing commercially in the following illicit streaming devices (“ISDs”) under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA, with another eight similar counts taken into consideration for sentencing:

Charge

Work

Copyright owner

Device

MSC-900589-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Football Association Premier League (“FAPL”)

MT TV BOX installed with Cloud TV

(2 units)

MSC-900590-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

FAPL

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

MSC-900591-2024

Discovery Channel

Discovery, Inc

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

MSC-900592-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)



4       Grandnew pleaded guilty to infringing the copyright in the following works by dealing commercially in the following ISDs under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA, with another eight similar counts taken into consideration for sentencing:

Charge

Work

Copyright owner

Device

MSC-900617-2024

Raya and the Last Dragon

Disney Ltd

A95X F3 AIR installed with Bee TV

(17 units)

MSC-900618-2024

Adam Project

Netflix Ltd

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

MSC-900619-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

MXQPRO 4K installed with My family Cinema

(15 units)

MSC-900622-2024

Raya and the Last Dragon

Disney Ltd

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)



5       As an officer of these two businesses, B1 pleaded guilty to the corresponding eight charges of having connived in the commission of these offences by MT Gadget and Grandnew, under s 500(1)(a) read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA, with another 16 similar counts taken into consideration for sentencing.

6       Having considered the facts of the case and the submissions from all parties, I imposed the following sentences.

MT Gadget

Charge

Device

Sentence

MSC-900589-2024

MT TV BOX installed with Cloud TV

(2 units)

$50,000

MSC-900590-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

$50,000

MSC-900591-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

$60,000

MSC-900592-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

$40,000

Total sentence

$200,000



Grandnew

Charge

Device

Sentence

MSC-900617-2024

A95X F3 AIR installed with Bee TV

(17 units)

$35,000

MSC-900618-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

$15,000

MSC-900619-2024

MXQPRO 4K installed with My family Cinema

(15 units)

$35,000

MSC-900622-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

$15,000

Total sentence

$100,000



Ge Xin (“B1”)

Charge

Device

Sentence

MAC 902328-2024

MT TV BOX installed with Cloud TV

(2 units)

2 months’ imprisonment

MAC 902329-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

2 months’ imprisonment

(consecutive)

MAC 902330-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902331-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

1 month’s imprisonment

MAC 902315-2024

A95X F3 AIR installed with Bee TV

(17 units)

4 months’ imprisonment

(consecutive)

MAC 902316-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902317-2024

MXQPRO 4K installed with My family Cinema

(15 units)

4 months’ imprisonment

MAC 902320-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

2 months’ imprisonment

Total sentence

10 months’ imprisonment



7       B1 commenced serving sentence from 24 October 2024. No appeal was filed.

8       Given the importance of this case as the first time an offender has been dealt with under s 150(1) of the CA, I now set out the full grounds for my decision in what I hope will be the start of the conversation to rationalize the operation of this provision and area of law.

Facts

9       The facts in support of the charge are set out in the Statement of Facts, which were admitted without qualification by the three accused persons.

10     Both MT Gadget and Grandnew operated from shop units at Sim Lim Square, offering for sale various electronic products, including various brands and models of ISDs. B1 was the directing mind and controller of the business of both MT Gadget and Grandnew, and he was also the one who incorporated the two businesses.

11     MT Gadget and Grandnew operated through a total of four employees who were employed by B1.

ISDs offered for sale

12     ISDs are devices that are typically pre-installed with computer programs to facilitate unauthorised access to copyrighted work, such as live television channels and video-on-demand content (“infringing apps”). They allow users to gain unauthorised access to multiple copyrighted works owned by multiple copyright owners repeatedly.

13     In particular, the ISDs offered for sale by MT Gadget and Grandnew were capable of facilitating access to copyrighted works without the following copyright owners’ authority:

MT Gadget

Grandnew

Disney Ltd

Warner Bros. Entertainment Inc

Discovery, Inc

Netflix Ltd

FAPL

Paramount Pictures Corporation

 



14     B1 was the one who decided to sell ISDs through MT Gadget and Grandnew, and he was solely responsible for the procurement and receipt of the said ISDs. B1 secured the supply of ISDs from an overseas supplier.

15     At all material times, B1, MT Gadget and Grandnew knew that the ISDs offered for sale were (i) capable of facilitating access to works communicated to the public without the authority of their copyright owners by streaming such copyrighted content; and (ii) had only a limited commercially significant purpose or use other than that capability.

16     At B1’s instructions, MT Gadget and Grandnew offered the ISDs for sale and told their customers that the ISDs would allow them to watch copyrighted works without incurring the costs of watching the same works through legitimate sources provided with the authorisation of the copyright owners.

Warning letters and seizure

17     In January 2020, October 2020 and February 2021, Grandnew received a total of three letters from FAPL warning Grandnew to desist from selling ISDs as they infringed FAPL’s copyright. Although B1 knew about the contents of each letter, B1 continued to authorise Grandnew and MT Gadget to sell the ISDs.

18     On 4 October 2022, a raid was conducted by officers of the Intellectual Property Rights Branch (“IPRB”) of the Singapore Police Force at the shop units of MT Gadget and Grandnew. During the raid, IPRB seized a total of 499 ISDs. Out of these, there were 239 operational ISDs seized from MT Gadget (9 of which were installed with infringing apps), and 91 operational ISDs seized from Grandnew (40 of which were installed with infringing apps). 169 of the ISDs seized were not operational.

19     Before the raid, these ISDs were offered by MT Gadget and Grandnew for sale.

20     With regard to MT Gadget, there were two employees involved in the sale of ISDs. MT Gadget began offering ISDs for sale in early 2018. The selling price of each ISD was about $115 - $220 and the profit margin for each ISD was about $43 - $80. Therefore, the total profit that MT Gadget would have made if it had sold all its operational ISDs which had been seized was about $10,277 - $19,120. According to B1, MT Gadget earned a monthly profit of about $5,000 from selling ISDs.

21     With regard to Grandnew, there were two employees involved in the sale of ISDs. Grandnew began offering ISDs for sale in early 2018. The selling price of each ISD was about $99 - $220 and the profit margin for each ISD was about $43 - $80. Therefore, the total profit that Grandnew would have made if it had sold all its operational ISDs which had been seized was about $3,913 - $7,280. According to B1, Grandnew earned a monthly profit of about $5,000 from selling ISDs.

22     Neither B1, MT Gadget nor Grandnew made any compensation to any copyright owner for the infringement of their copyrights arising from their commercial dealing in ISDs.

Facts pertaining to the charges involving ISDs seized from MT Gadget

23     By virtue of the foregoing, on or about 4 October 2022, at MT Gadget’s shop unit located at 1 Rochor Canal Road, Sim Lim Square #02-72, Singapore 188504, MT Gadget had infringed the copyright in the following works by dealing commercially in the following units of ISDs capable of facilitating access to the said works:

Charge

Work

Copyright owner

Device

MSC-900589-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Football Association Premier League (“FAPL”)

MT TV BOX installed with Cloud TV

(2 units)

MSC-900590-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

FAPL

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

MSC-900591-2024

Discovery Channel

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Discovery, Inc

Disney

Warner Bros.

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

MSC-900592-2024

Fantastic Beasts: The Secrets of Dumbledore

Raya and the Last Dragon

Discovery Channel

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Warner Bros.

Disney

Discovery, Inc

FAPL

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)



24     MT Gadget infringed copyright by offering the said devices for sale by way of trade, knowing that the said devices were capable of facilitating access to works communicated to the public without the authority of their copyright owners and had only a limited commercially significant use other than that capability. MT Gadget had therefore committed four counts of the offence under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA.

25     These offences were committed with the connivance of B1, who was an officer of the company. B1 had therefore committed four counts of the offence under s 500 read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA.

Facts pertaining to the charges involving ISDs seized from Grandnew

26     By virtue of the foregoing, on or about 4 October 2022, at Grandnew’s shop unit located at 1 Rochor Canal Road, Sim Lim Square #02-87, Singapore 188504, Grandnew had infringed the copyright in the following works by dealing commercially in the following units of ISDs capable of facilitating access to the said works:

Charge

Work

Copyright owner

Device

MSC-900617-2024

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Disney Ltd

Warner Bros

A95X F3 AIR installed with Bee TV

(17 units)

MSC-900618-2024

Adam Project

Discovery Channel

Top Gun: Maverick

Tottenham Hotsput FC v Newcastle United FC (23 Oct 22)

Aston Villa FC v Chelsea FC (23 May 21)

Liverpool FC v Crystal Palace FC (23 May 21)

Netflix Ltd

Discovery Inc

Paramount Pictures

FAPL

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

MSC-900619-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

Disney

Discovery Inc

MXQPRO 4K installed with My family Cinema

(15 units)

MSC-900622-2024

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Discovery Channel

Disney

Warner Bros

Discovery Inc

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)



27     Grandnew infringed copyright by offering the said devices for sale by way of trade, knowing that the said devices were capable of facilitating access to works communicated to the public without the authority of their copyright owners and had only a limited commercially significant use other than that capability. Grandnew had therefore committed four counts of the offence under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA.

28     These offences were committed with the connivance of B1, who was an officer of the company by virtue of his purporting to act in such capacity as a director of Grandnew. B1 had therefore committed four counts of the offence under s 500 read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA.

Antecedents

29     The accused persons were untraced.

Prosecution’s Address on Sentence

30     The Prosecution submitted for the following sentences:

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31     Relying on the case of PP v Goik Soon Guan [2015] 2 SLR 655 (“Goik Soon Guan”) where the High Court had observed that general deterrence was the primary sentencing consideration in cases of trademark infringement, the Prosecution similarly submitted that the same considerations applied in cases of copyright infringement. Therefore general deterrence should be the dominant sentencing consideration in the present case.

32     In particular, the Prosecution highlighted that the new offences under s 150(1) of the CA had been enacted by Parliament specifically to tackle the commercial proliferation of ISDs in Singapore. Deterrent sentences would signal clearly to the industry and members of the public that commercial dealing in ISDs carried serious legal consequences and this would also be consistent with Singapore efforts to strengthen our position as a global intellectual property hub.

33     The Prosecution also pointed out that ISDs had the potential to facilitate cybercrime, as such devices could contain malware and form botnets (networks of compromised devices that could be controlled by criminals to perform malicious tasks). However, the Prosecution confirmed that there was no indication in the present case of any such cybercrime potential being realised in relation to the seized devices.

34     In the absence of any sentencing guidance for the new offence under s 150(1) of the CA, the Prosecution submitted that reference could be made to the sentencing guidelines for offences under s 49(c) of the Trade Marks Act 1998 (“TMA”), and as set out in Goik Soon Guan. Section 49(c) involves the possession for the purpose of trade or manufacture any goods to which a registered trade mark is falsely applied. Both offences involve the infringement of intellectual property rights for commercial purposes and share the same prescribed maximum punishments.

35     In this respect, the Prosecution referred to the following two-step framework set out in Goik Soon Guan at [31]:

(a)     Consider the nature and extent of the infringements, and the manner in which the infringements were carried out; and

(b)     Examine whether there were any other relevant aggravating or mitigating factors.

36     Under the Goik Soon Guan framework, the court should also look at the offender’s level of involvement to determine the appropriate starting sentence. The ranges below applied to offenders who pleaded guilty.

\"\"

37     With regard to the appropriate fines to be imposed on MT Gadget and Grandnew, the Prosecution referred to the case of PP v Jia Xiaofeng and Synnex Trading Pte Ltd [2019] SGMC 73 (“Synnex”), where the company and its director pleaded guilty to charges under:

(a)     Section 136(3A) of the Copyright Act 2006 (“CA 2006”) for authorising customers to use ISDs to make infringing copies of shows; and

(b)     Section 136(4) of the CA 2006 for possessing ISDs which were articles designed to make infringing copies of shows.

38     In Synnex, 108 ISDs were involved and the global fine imposed on the company was $160,800. The profit margin per ISD was about $114 and the total estimated profit margin for all the ISDs was $12,312.

39     Applying the above guidelines, the Prosecution submitted that B1’s level of involvement was moderate as he owned and operated MT Gadget and Grandnew. In calibrating the specific sentences, the Prosecution had regard to the following factors:

(a)     Harm caused by each ISD was generally higher than the harm caused by each infringing article under s 49(c) of the TMA, as ISDs enabled multiple infringements of copyright.

(b)     B1, MT Gadget and Grandnew committed the offences in blatant disregard of the law. B1 continued to offer the ISDs for sale through MT Gadget and Grandnew despite receiving warning letters from FAPL.

(c)     There were four employees working under MT Gadget and Grandnew.

(d)     A total of six copyright holders’ copyrights had been infringed as a result of B1’s business.

(e)     Although s 150(1) of the CA only came into force on 22 November 2021, the fact was that B1, through MT Gadget and Grandnew, had commercially dealt with ISDs for a total of four years since early 2018.

(f)     A total of 499 ISDs were seized, with 330 of them being the subject of the charges.

(g)     Based on the operational ISDs seized, B1 would earn a total profit of $10,277 to $19,120 through MT Gadget, and $3,913 to $7,280 through Grandnew.

(h)     According to B1, he made monthly profits of about $10,000 from the sale of ISDs in MT Gadget and Grandnew.

(i)     No compensation had been made to any copyright holder.

40     With regard to the fines, the Prosecution also pointed out that the proposed global fines had been calibrated to be in line with the global fine imposed in Synnex.

Mitigation

41     In mitigation, the Defence highlighted that B1 had not supplied the devices to any other suppliers or otherwise further contributed to their distribution. His role was largely limited to simply purchasing the devices. The Defence also stressed that B1 was just a small-time operator who was not involved in any sophisticated business plan set out to avoid detection.

42     B1, MT Gadget and Grandnew were all untraced and B1 in particular had cooperated with the investigations and indicated at an early stage his intention to plead guilty.

43     The Defence was generally in agreement that the framework as set out in Goik Soon Guan was relevant to the present case, and submitted that B1’s level of involvement should be pegged at the lower end of the moderate range. The manner in which the infringements was carried was not particularly sophisticated and there was no attempt to conceal the business operations. It was also pointed out that there were only a total of four employees running the two businesses and the profit margins involved were not high. There was no involvement of a syndicate, and the duration of offending should be pegged from the time s 150 of the CA came into force i.e. about 11 months prior to the raid.

44     Based on the above, the Defence urged the court to impose the following sentences:

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45     The Defence asked for only two of the sentences to run consecutively, as all of the offences arose essentially from the same business operation and there were no exceptional circumstances warranting the ordering of more than two of the sentences to run consecutively.

Decision on Sentence

46     There was no doubt in my mind that the dominant sentencing principle in the present case was that of deterrence, both specific and general. Strong intellectual property protection is an integral component of Singapore’s economic and industrial policy, and vital to our economic success.[note: 1] Therefore, the general signal must be that such copyright offences will be taken seriously and offenders should not expect to get away with merely a slap on the wrist.

47     In the present case, Grandnew had already received three previous warnings from a copyright owner (FAPL) and B1 knew about these warnings. Despite this, he continued to authorise MT Gadget and Grandnew to sell the ISDs, demonstrating a deliberateness and persistence which, in my view, invited the application of the principle of specific deterrence as well.[note: 2]

48     While there was no specific guidance from the High Court with regard to sentencing for an offence under s 150(1) of the CA, the infringement of intellectual property rights was not a novel concept and guidance could be discerned from similar cases in the past. I agreed with the Prosecution that Goik Soon Guan was one such case.

49      Goik Soon Guan dealt with the offence under s 49(c) of the TMA, involving the possession for the purpose of trade or manufacture any goods to which a registered trade mark is falsely applied. This is similar in principle to an offence under s 150(1) of the CA, involving the infringement of intellectual property rights for commercial purposes. The main difference is that while s 49(c) of the TMA involves physical goods (such as bedding products as in Goik Soon Guan), s 150(1) involves devices and services facilitating access to copyrighted works. I accepted that the principles expounded in Goik Soon Guan would be of relevance to the present case.

Sentencing framework in Goik Soon Guan

50     The sentencing framework set out in Goik Soon Guan for offences under section 49(c) of the TMA was to (a) first, consider the nature and extent of the infringements, and the manner in which the infringements were carried out and (b) second, examine whether there were any other relevant aggravating or mitigating factors (see [31] of Goik Soon Guan).

51     In applying the aforementioned framework, a good starting point was to consider the offender’s level of involvement in the whole operation. The three categories of involvement could be found at [32] to [35] of Goik Soon Guan and were also re-affirmed and summarised in [12] of Tan Wei v Public Prosecutor [2016] SGHC 72 (“Tan Wei”), as reproduced below:

(a)      low involvement, where the offender was merely an employee (see Goik Soon Guan at [35]);

(b)      moderate involvement, where the offender owned and operated the business, but the scale of the business was generally quite small (eg, a small shop) (see Goik Soon Guan at [34]); and

(c)      high involvement, where the offender ran a relatively large scale or complex operation, and/or was heavily involved in many levels of the “trade or manufacture” of counterfeit products, including manufacturing or sourcing for the products, distributing the products to other retailers and/or selling the infringing products (see Goik Soon Guan at [33]).

52     Considering only the degree of involvement of the offender and not the number of infringing articles concerned, the starting point and sentencing range per charge (Tan Wei at [18]) was as follows (Goik at [38]):

(a)      Low involvement: two to four months’ imprisonment;

(b)      Moderate involvement: six to seven months’ imprisonment; and

(c)      High involvement: 10 to 20 months’ imprisonment.

53     Having determined the starting point, the sentences should then be calibrated upwards or downwards after taking into account the surrounding factors including (see [14] of Tan Wei):

(a)     Size of offender’s business;

(b)     Number of employees;

(c)     Financial figures (revenue and profits);

(d)     Whether a syndicate was involved;

(e)     Number of infringing articles;

(f)     Nature and value of infringing articles;

(g)     Duration of infringement;

(h)     Manner of infringement and degree of permanence (e.g. whether offender had shop front); and

(i)     Whether compensation was made.

54     In particular, the High Court in Goik Soon Guan had also observed at [36] that the custodial threshold would be crossed when an offender had some sort of permanence in dealing with the infringing articles e.g. a shop front.

55     There was no dispute in the present case that the custodial threshold had been crossed. B1 had operated the businesses of MT Gadget and Grandnew from two shop units, and these two businesses had been selling the ISDs in question for at least 11 months. A mere fine would have been clearly insufficient.

56     In terms of the level of involvement of B1, I agreed with the Prosecution that this should be pegged at the moderate level under the Goik Soon Guan framework. B1 owned and operated two different businesses from two different shop units. Under the framework, the starting point per charge was therefore six to seven months’ imprisonment.

57     In calibrating the appropriate length of the custodial terms for B1, and the fines for MT Gadget and Grandnew, I took the following factors into consideration.

(a)     The number of infringing devices per charge was small, and certainly not in the usual range for a charge under a s 49(c) of the TMA, which could run into hundreds or even thousands. However, this must be viewed against the fact that the harm caused by each infringing ISD was generally more serious than the harm caused by each infringing article. A single physical infringing article usually represents a single infringement, whereas a single infringing ISD enables multiple infringements of copyright because the user can use it to view multiple copyrighted works repeatedly. Indeed, there would appear to be no limit to the number of times a work can be infringed with a single ISD.

(b)     The offences had been committed in blatant disregard of the law, and despite B1 having notice of three previous warning letters from FAPL.

(c)     B1 employed a total of four employees who assisted MT Gadget and Grandnew in the selling of the ISDs.

(d)     The offending period, during which B1, through MT Gadget and Grandnew, had commercially dealt with ISDs in contravention of s 150(1) of the CA, was about 11 months. Although I noted that in fact MT Gadget and Grandnew had been selling ISDs since 2018, this was before s 150(1) of the CA came into force on 22 November 2021. Since the offence had not been created then, I did not give weight to this period before November 2021.

(e)     The charges against B1, MT Gadget and Grandnew involved a total of 330 operational ISDs. This included the charges which were taken into consideration. In particular, the charges against MT Gadget involved 239 ISD, while the charges against Grandnew involved 91 ISDs.

(f)     The profits involved based on the operational ISDs seized ranged from $10,277 to $19,120 for MT Gadget, and $3,913 to $7,280 for Grandnew. In terms of monthly profits from the sales of ISDs, this would be about $5,000 for each business.

(g)     No compensation had been made to any copyright holder.

(h)     B1, MT Gadget and Grandnew were all untraced and chose to plead guilty at an early stage. B1 had also cooperated with the investigations.

58     In addition, the Prosecution had pointed out that some weight ought to be given to the fact that some of these devices had been confirmed to have infringed on more than one copyright holder’s work. (See paragraphs 17 and 20 of the Statement of Facts). Upon my query, the Prosecution explained that the works as set out in the Statement of Facts were confirmed by the experts who had analysed the ISD based on certain parameters. That said, it remained true that these devices were not limited to these works and were capable of facilitating access to other works as well.

59     I had some difficulty deciding what weight, if any, ought to be accorded to the fact that some of these ISDs had been confirmed to have infringed more than one copyright holder’s work. Firstly, the expert reports were not before the court and no further details of their contents had been provided. It was not clear what parameters the experts had used for their analysis, and whether these parameters were the same for the examination of all the ISDs under question. Secondly, it already appeared to be an element of the offence that the device itself should be capable of facilitating access to more than one work.[note: 3] This was also one of the key sentencing considerations in the present case – that the ISD as compared to a physical article under s 49(c) of the TA, had the potential to involve multiple infringements involving different copyrighted works and owners. If in fact there was no known limit to how many copyright holders could be potentially affected by a single ISD and this was already taken into account for the purpose of sentencing, then the fact that an expert analysis had confirmed that at least an x number of copyright holders’ had been affected in any particular charge appeared to lose much of its significance. Thirdly, the charges only reflected one copyright holder per charge.

60     Therefore, while I relied on the fact that the ISDs were all capable of facilitating access to multiple works involving multiple copyright holders, I did not give specific weight to the known number of copyright holders per charge when calibrating the individual sentences. If this is a factor which the Prosecution wants to continue pursuing for future cases, perhaps it would be helpful to provide for the court’s reference more details regarding the expert analysis, how the conclusions were arrived at and how this should be viewed against the general backdrop that an ISD can potentially facilitate access to works involving an unlimited number of copyright holders.

Sentence imposed on B1

61     Based on the above considerations, I took the view that the starting points as set out in Goik Soon Guan for a moderate level of involvement could be calibrated downwards, with adjustments made based on the number of ISDs per charge. With regard to the global sentence, I was of the view that it would be appropriate to run a total of four charges consecutively, involving two from each business. This is having taken into account the individual sentences, as well as the fact that there were 16 other charges taken into consideration. The global sentence imposed on B1 is a term of 10 months’ imprisonment, the details of which are set out below:

Charge

Device

Sentence

MAC 902328-2024

MT TV BOX installed with Cloud TV

(2 units)

2 months’ imprisonment

MAC 902329-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

2 months’ imprisonment

(consecutive)

MAC 902330-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902331-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

1 month’s imprisonment

MAC 902315-2024

A95X F3 AIR installed with Bee TV

(17 units)

4 months’ imprisonment

(consecutive)

MAC 902316-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902317-2024

MXQPRO 4K installed with My family Cinema

(15 units)

4 months’ imprisonment

MAC 902320-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

2 months’ imprisonment

Total sentence

10 months’ imprisonment



Sentences imposed on MT Gadget and Grandnew

62     I accepted that the global fine imposed in Synnex would be a good reference point, as the case similarly involved copyright infringements and the possession of ISDs. In Synnex, 108 ISDs were involved and the global fine imposed on the company was $160,800. Based on the number of ISDs seized, the total fine imposed on MT Gadget (involving 239 ISDs) should be more than that imposed in Synnex, while the total fine imposed on Grandnew (91 ISDs) should be less.

63     Based on the above, I calibrated the fines as set out below.

MT Gadget

Charge

Device

Sentence

MSC-900589-2024

MT TV BOX installed with Cloud TV

(2 units)

$50,000

MSC-900590-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

$50,000

MSC-900591-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

$60,000

MSC-900592-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

$40,000

Total sentence

$200,000



Grandnew

Charge

Device

Sentence

MSC-900617-2024

A95X F3 AIR installed with Bee TV

(17 units)

$35,000

MSC-900618-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

$15,000

MSC-900619-2024

MXQPRO 4K installed with My family Cinema

(15 units)

$35,000

MSC-900622-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

$15,000

Total sentence

$100,000



64     I was satisfied that the resulting global sentences for B1, MT Gadget and Grandnew were in line with the totality principle, and an adequate and necessary reflection of their culpability.

Conclusion

65     The market for on-demand digital entertainment is poised to grow, but with increased accessibility comes the risk of copyright infringement. Protecting intellectual property rights in the digital realm requires a multi-faceted approach, including legal action. While the courts must and will always consider the individual circumstances in sentencing, a deterrent stance should be adopted as a starting point for copyright offences. This approach is crucial in order to maintain Singapore’s status as a global hub for intellectual property.

66     In light of the nature of these offences, the circumstances surrounding the present case and the considerations pertaining to the accused persons, I was satisfied that the aforementioned sentences were appropriate and imposed them accordingly.

[note: 1]See Goik Soon Guan at [18].

[note: 2]See PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [18].

[note: 3]The relevant provision under s 150(1) reads: “… copyright in a work is infringed by a person (X) if (a)the work is communicated to the public without the copyright owner’s authority;(b)X does any of the following acts (whether before or after the work is so communicated):ii.deals commercially in a device;(c)the device … is capable of facilitating access to the work; and(d)X knows or ought reasonably to know that the device… (i) is capable of facilitating access to works communicated to the public without the authority of their copyright owners; and (ii) has only a limited commercially significant purpose or use other than that capability. (emphasis added)

"},{"tags":["Contract – Breach – Whether the settlement agreement was breached","Contract – Settlement agreements – Whether the settlement agreement precluded a claim based on the tort of waste","Landlord And Tenant – Agreements for leases – Conflicting evidence on whether a written tenancy agreement was stamped in accordance with section 52 of the Stamp Duties Act 1929 (2021 Rev Ed)","Landlord And Tenant – Agreements for leases – Whether section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) precludes a party from relying on an oral tenancy agreement that has not been duly stamped","Landlord And Tenant – Covenants – Whether there is an implied obligation at law for a tenant to reinstate the premises","Landlord And Tenant – Covenants – Whether there is a difference between an obligation to yield up the premises in good and tenantable repair and condition, and an obligation to reinstate the premises","Tort – Tort of waste – Whether an omission to restore the premises attracts liability for voluntary waste","Tort – Tort of waste – Whether the removal of fixtures constitutes an act of voluntary waste","Tort – Tort of waste – Whether the tort of voluntary waste applies in Singapore"],"date":"2024-09-16","court":"District Cout","case-number":"Suit No 288 of 2021","title":"Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.","citation":"[2024] SGDC 232","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32462-SSP.xml","counsel":["Chu Hua Yi and Goh Jia Jie (FC Legal Asia LLC) for the Plaintiff","Ling Daw Hoang Philip, Lim Haan Hui and Nur Afiqah Binte Mohamed Ashefjah (Wong Tan & Molly Lim LLC) for the Defendant."],"timestamp":"2024-11-16T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.

Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.
[2024] SGDC 232

Case Number:Suit No 288 of 2021
Decision Date:16 September 2024
Tribunal/Court:District Cout
Coram: Samuel Wee
Counsel Name(s): Chu Hua Yi and Goh Jia Jie (FC Legal Asia LLC) for the Plaintiff; Ling Daw Hoang Philip, Lim Haan Hui and Nur Afiqah Binte Mohamed Ashefjah (Wong Tan & Molly Lim LLC) for the Defendant.
Parties: Lian Hoe Leong & Brothers Pte. Ltd. — Texas Petrochemical Asia Pacific Pte. Ltd.

Contract – Breach – Whether the settlement agreement was breached

Contract – Settlement agreements – Whether the settlement agreement precluded a claim based on the tort of waste

Landlord And Tenant – Agreements for leases – Conflicting evidence on whether a written tenancy agreement was stamped in accordance with section 52 of the Stamp Duties Act 1929 (2021 Rev Ed)

Landlord And Tenant – Agreements for leases – Whether section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) precludes a party from relying on an oral tenancy agreement that has not been duly stamped

Landlord And Tenant – Covenants – Whether there is an implied obligation at law for a tenant to reinstate the premises

Landlord And Tenant – Covenants – Whether there is a difference between an obligation to yield up the premises in good and tenantable repair and condition, and an obligation to reinstate the premises

Tort – Tort of waste – Whether an omission to restore the premises attracts liability for voluntary waste

Tort – Tort of waste – Whether the removal of fixtures constitutes an act of voluntary waste

Tort – Tort of waste – Whether the tort of voluntary waste applies in Singapore

16 September 2024

Judgment reserved.

District Judge Samuel Wee:

Introduction

1       The claims in this action relate to alleged damage caused by the Defendant when it vacated the Plaintiff’s property at International Road (“IR Premises”). Underlying this dispute was a fractious family whose adversarial camps were at loggerheads.[note: 1] Determining the scope of the parties’ rights and obligations therefore required an understanding of the background leading up to the dispute.

Background Facts

The genesis of the Plaintiff and the Defendant

2       Sometime in the 1950s, Mr Lim Kong Seng (the “Father”) started a business as a sole proprietor trading as “Lian Hoe Leong”, which over time became involved in the wholesale and trading of petrochemical products.[note: 2]

3       The Father and his wife had many children. The names of the Father’s relevant children are listed in order of seniority, along with details about their own respective family members who are involved in the proceedings:[note: 3]

(a)     Mr Lim Tiong Teek (“Teek”), whose daughter, Ms Lim Pei Pei (“Beth”), was previously employed by the Plaintiff; and whose son-in-law, Ang Chin Teong (“Ang”), is currently an employee of the Defendant and is married to one of Teek’s other daughters.

(b)     Mr Lim Tiong San (“San”), who has passed away. San’s family members are: (i) his wife, Mdm Low Siang Eng (“Low”); (ii) his daughter, Ms Kelly Lim (“Kelly”); and (iii) his son, Mr Louis Lim (“Louis”).

(c)     Ms Lim Poh Eng (“Nancy”), who was previously employed as the finance manager of both the Plaintiff and the Defendant.[note: 4]

(d)     Mr Lim Tiong Beng (“Tony”), who is presently the managing director of the Plaintiff, and was previously a director of both the Plaintiff and the Defendant. Tony’s son, Mr Lin Xiaoxian (“Darren”), is presently a director of the Plaintiff.

(e)     Mr Lim Tong Yam (“George”), who is presently the managing director of the Defendant, and was previously the managing director of both the Plaintiff and the Defendant. George’s son, Mr Lim Xiao Wei Leroy (“Leroy”), is presently a director of the Defendant.

Tony and George are the leading members of the two adversarial factions.

4       The Father suffered a stroke around 1982. As a result, the Plaintiff was incorporated to take over the business, and was operated and managed as a family business.[note: 5]

5       Over the years, the entire shareholding of the Plaintiff remained within the members of the Father’s family, although the shareholding composition varied. For the purposes of these proceedings, the relevant shareholding relates to the period in early 2020 when Teek, George and Tony each owned 25% of the shares, while the remaining 25% was divided amongst San’s family (Low 12.5%, Kelly 7.5% and Louis 5%).[note: 6]

6       In 2002, the Defendant company was incorporated and served as a vehicle for the development of the Plaintiff’s own brand of lubricants.[note: 7] Initially, the Plaintiff was the Defendant’s majority shareholder with other minority shareholders involved. The Plaintiff subsequently bought out the other shareholders and become the sole shareholder of the Defendant sometime around May 2004.[note: 8] The Defendant company was hence seen as an extension of the Plaintiff’s business, with the operations and management of both companies undertaken in tandem.[note: 9] In this regard, George was the managing director of both companies, [note: 10] and Tony was a director of both as well.[note: 11]

The purchase of the IR Premises by the Plaintiff and occupancy of the Carved-Out Area by the Defendant

7       Prior to 2003, the Plaintiff’s business operated out of Loyang Offshore Supply Base (“Loyang Premises”), while the Defendant’s business operated out of a factory in Tuas.[note: 12]

8       Sometime in early 2003, the Plaintiff purchased the IR Premises. As the IR Premises sat on land owned by JTC Corporation (“JTC”), it was subject to the prevailing terms, covenants, conditions and stipulations imposed by JTC.[note: 13]

9       By way of an agreement entered into around March 2003 (“2003 Agreement”),[note: 14] the Plaintiff sub-leased part of the IR Premises (“Carved-Out Area”) to the Defendant from 1 March 2003 to 28 February 2005.[note: 15] In line with the JTC Conditions, the Plaintiff sought and was granted approval by JTC for the said sub-lease.[note: 16] The Plaintiff also relocated its operations from the Loyang Premises to the IR Premises.

10     After the 2003 Agreement expired on 28 February 2005, the Defendant continued to occupy the Carved-Out Area and paid various sums to the Plaintiff for some, but not all, of the months it occupied the Carved-Out Area.[note: 17] However, no further written tenancy agreement was entered into between the parties.

The Settlement Deed

11     Disputes arose between Teek, George and Tony regarding the management of the Plaintiff and the Defendant, which culminated in the commencement of High Court proceedings in HC/OS 1391/2019 and HC/S 8/2020 (“High Court Proceedings”).

12     Through a Deed of Settlement dated 1 July 2020 (“Settlement Deed”), to which the Plaintiff and the Defendant were parties, the following terms (relevant to these proceedings) were agreed:

(a)     The shareholding structure of the Plaintiff and the Defendant would be reconfigured to allow a clean break between the disputing factions.[note: 18] The Plaintiff would fall under Tony’s faction and be owned by Tony, Low, Kelly and Louis, whereas the Defendant would fall under George’s faction and be owned by Teek and George.[note: 19]

(b)     The Defendant would have 8 months (“Removal Period”) to remove the property, equipment and production facilities listed at Annex K-1 to the Settlement Deed (“Annex K-1 Property”) from the IR Premises (Clause 12.1 of the Settlement Deed).[note: 20]

(c)     The Defendant would pay the Plaintiff a monthly rental of $30,000 and 50% of electricity and water charges until the Annex K-1 Property have been removed from the IR Premises, subject to a waiver of the rental for the first month (Clause 12.1 and 12.3 of the Settlement Deed).[note: 21]

(d)     There would be a full and final settlement of the disputes between the parties to the Settlement Deed (Clause 5.1 of the Settlement Deed).[note: 22]

The Defendant’s vacation of the Carved-Out Area

13     Around October 2020, the Defendant started removing the Annex K-1 Property from the Carved-Out Area.[note: 23] After the Defendant removed some of its blending and storage tanks (“Tanks”), the Plaintiff noticed that the now exposed ground was unlevelled and depressed.[note: 24] The Plaintiff therefore requested that the Defendant restore and repair the Carved-Out Area,[note: 25] but the Defendant refused and continued removing the rest of the Annex K-1 Property from the Carved-Out Area.[note: 26]

14     The Defendant vacated the Carved-Out Area in the first week of December 2020.[note: 27] However, it did not remove the concrete fencing around some of the Tanks (“Fencing”);[note: 28] and left parts of the now exposed ground in an unlevelled and depressed state (“Uneven Ground Surface”).[note: 29]

15     The Defendant also removed the following items from the Carved-Out Area, which are material to this dispute:

(a)     A steel structure (“Steel Structure”), which had large holes that three Tanks were place in.[note: 30]

(b)     Two distribution boxes (“DBs”) connected to the electrical mains which supplied electricity within the Defendant’s Carved-Out Area.[note: 31] The DBs were located at separate areas within the Defendant’s Carved-Out Area.[note: 32]

Commencement of proceedings

16     As the Defendant did not restore or repair the Carved-Out Area, the Plaintiff commenced these proceedings to seek damages for (a) the removal of the Fencing, (b) the restoration of the Uneven Ground Surface, (c) the restoration of the Steel Structure, and (d) the restoration of the two DBs.

17     The Plaintiff’s claims are premised on:[note: 33]

(a)     A breach of the Settlement Deed by virtue of the Defendant’s removal of the Steel Structure and the two DBs, which the Plaintiff alleges was not part of the Annex K-1 Property.[note: 34]

(b)     The tort of waste vis-à-vis the Defendant’s removal of the Steel Structure and the two DBs, its failure to remove the Fencing, and its failure to restore the Uneven Ground Surface.[note: 35]

(c)     A breach of a contractual obligation to reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.[note: 36]

18     The Defendant denies the Plaintiff’s claims and asserts as follows:

(a)     The Plaintiff’s claims were extinguished under the Settlement Deed.[note: 37]

(b)     It was entitled to remove the Steel Structure and the two DBs as they (i) were part of the Annex K-1 Property; (ii) belonged to the Defendant; or (iii) were treated by the parties as belonging to the Defendant.[note: 38]

(c)     It was merely an occupier (and not a tenant) of the Carved-Out Area;[note: 39] and did not have any contractual obligation to reinstate the Carved-Out Area.[note: 40]

(d)     The tort of waste does not apply because it was not a tenant.[note: 41]

Issues

19     Several issues must be addressed.

20     First, whether there was a landlord-tenant relationship between the parties prior to the Settlement Deed and whether there was an accompanying contractual obligation for the Defendant to reinstate the Carved-Out Area.

21     Second, there was a landlord-tenant relationship between the parties under the Settlement Deed and whether there was an accompanying contractual obligation for the Defendant to reinstate the Carved-Out Area.

22     Third, whether the Defendant breached the Settlement Deed by removing the Steel Structure and the two DBs.

23     Fourth, whether the Plaintiff was entitled to rely on the tort of waste despite the terms of the Settlement Deed, and if so, whether the Defendant committed the tort of waste by removing the Steel Structure and the two DBs, failing to remove the Fencing, and failing to restore the Uneven Ground Surface.

24     Fifth, the appropriate quantification of damages.

Issue 1 – Although there was a landlord-tenant relationship between the Plaintiff and the Defendant prior to the Settlement Deed, there was no obligation on the Defendant to reinstate the Carved-Out Area

The parties’ positions

25     The Plaintiff asserts that there was a landlord-tenant relationship between the parties by way of a tenancy at will;[note: 42] and that this gave rise to an obligation on the Defendant to reinstate the Carved-Out Area when it vacated the same because: (a) the terms of the 2003 Agreement were extended and continued to apply from 1 March 2005 onwards; and (b) there was an implied obligation at law to do so.[note: 43]

26     The Defendant denies that there was a landlord-tenant relationship after the 2003 Tenancy Agreement expired. It asserts that it was merely an occupier of the Carved-Out Area.[note: 44] The Defendant also asserts that it did not have any obligation to reinstate the Carved-Out Area.[note: 45]

The law

27     The right to occupy a property may come in the form of a landlord-tenant relationship or a licensor-licensee relationship.

28     Exclusive possession of the property by the occupier is an essential requirement in a landlord-tenant relationship (Goh Gin Chye and another v Peck Teck Kian Realty Pte Ltd and another 1987] SLR(R) 195 (“Goh Gin Chye”) at [14]). Exclusive possession is the right of the occupier to exclude others, including the owner, from entering the property (Tan Sook Yee’s Principles of Singapore Land Law (Tang Hang Wu and Kelvin FK Low) (LexisNexis, 4th Ed, 2019) (“Principles of Singapore Land Law”) at [19.15], citing Heslop v Burns [1974] 3 All ER 406).

29     In contrast, a licensor-licensee relationship exists where the occupier is granted the right to occupy the property without being entitled to exclusive possession.

30     That said, exclusive possession is not the sole criterion, and there may be circumstances negating an intention to create a tenancy despite the occupier having exclusive possession of the property (Goh Gin Chye at [15]). This includes situations where the parties have no intention to enter into legal relations (Booker v Palmer [1942] 2 All ER 674); a family arrangement or an act of friendship or generosity (Errington v Errington and Woods [1952] 1 KB 290 (“Errington”)); or where an employee occupies his employer’s property in order to perform his duties as an employee (Street v Mountford [1985] AC 809 at 818). In such situations, there would be a licensor-licensee relationship rather than a landlord-tenant relationship (Halsbury’s Laws of Singapore vol 14(2) (LexisNexis, 2014 Reissue, 2014) (“Halsbury’s Singapore on Land Law”) at [170.0831]).

31     It is the substance of the arrangement between the parties that is paramount, and “[p]arties cannot turn a tenancy into a licence merely by calling it one” (per Denning LJ (as he then was) in Errington at 298, cited with approval by the Court of Appeal in Goh Gin Chye at [7]). In this regard, the Court of Appeal’s finding in Goh Gin Chye at [14] are pertinent:

… Firstly, the intention of the parties is an important consideration in determining the relationship of landlord and tenant, as in all other contractual relationships, but in every case the intention “must be sought not from the mere words of the agreement but from its substance and from the conduct of the parties and the surrounding circumstances”. What the parties said or professed in the agreement alone is not enough, it does not alter what is, in effect, a tenancy into a licence, and vice versa. Secondly, the relationship of the parties is determined by law, having regard to all the relevant circumstances, and not by the label they choose to put on the agreement. The “consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence” …

There was a landlord-tenant relationship between the Plaintiff and the Defendant prior to the Settlement Deed

Exclusive possession of the Carved-Out Area by the Defendant

32     The IR Property sat on a land plot of around 6,500m2. Upon driving into the IR Property from the entrance along Kian Teck Avenue, there would be one building on the left (“Building 1”) and another smaller one on the right (“Building 2”).[note: 46]

(a)     Building 1 was occupied primarily by the Plaintiff, although a few rooms on the 1st floor were set aside and used by the Defendant as its office (“Office Unit”).[note: 47]

(b)     Building 2 was occupied solely by the Defendant.

(c)     The Defendant would also use some open-air land around Building 2 to house its Tanks (“Tank Areas”). These areas were enclosed by the Fencing.[note: 48]

33     The Carved-Out Area therefore comprised Building 2, the Tank Areas and the Office Unit.

34     I find that the Defendant had exclusive possession of the Carved-Out Area.

(a)     The Plaintiff has adduced sufficient evidence showing that the Carved-Out Area was delineated, and that it was possible for the Defendant to control the access to the same (ie. the entry and exit points).[note: 49] Building 2 had two main access points;[note: 50] the Tank Areas were demarcated by the Fencing, which limited access to it;[note: 51] and the Office Unit was locked, with access limited to persons authorised by the Defendant.[note: 52]

(b)     In contrast, there is no evidence from the Defendant to suggest that it was unable to control access to the Carved-Out Area or that the Plaintiff retained a right to control access to the Carved-Out Area (Principles of Singapore Land Law at [19.24]). In this regard, the fact that staff from the Plaintiff were able to easily walk in and out the Carved-Out Area[note: 53] did not mean that the Defendant was unable to control access, as this had to be understood in the context that the Defendant had been a wholly owned subsidiary and that the Plaintiff’s staff may have been permitted to access the Carved-Out Area.[note: 54] The Defendant’s choice to allow the Plaintiff to access the Carved-Out Area should not be confused with its ability to control access if it so wished.

35     The Defendant’s exclusive possession of the Carved-Out Area is a strong indication that a landlord-tenant relationship existed between the parties; and I turn to consider whether there were other circumstances that suggest otherwise.

George’s and Nancy’s handling of the affairs

36     George and Nancy were responsible for handling the arrangements regarding the Defendant’s occupancy of the Carved-Out Area. Tony’s involvement was limited as he accepts that these matters were left to George and Nancy to handle.[note: 55]

37     The stance taken by both George and Nancy was that following the expiry of the 2003 Agreement on 28 February 2005, the Plaintiff allowed the Defendant to occupy the Carved-Out Area, and the parties did not contemplate or discuss the existence of a landlord-tenant relationship. This is reflected in their affidavits of evidence-in-chief (“AEICs”), which explained the following in support of their view that there was merely a licensor-licensee relationship:

(a)     The landlord-tenant relationship under the 2003 Agreement and the accompanying obligation for the Defendant to pay rent to the Plaintiff were initially necessary as the Defendant was not a wholly owned subsidiary of the Plaintiff when it first started occupying the Carved-Out Area in March 2003.[note: 56]

(b)     This however changed once the Defendant become a wholly owned subsidiary of the Plaintiff around May 2004,[note: 57] and there was no longer a need for the Defendant to pay rent to the Plaintiff as it would be “akin to paying money from the left pocket to the right pocket”.[note: 58] The parties therefore did not bother or even consider signing any further tenancy agreements when the 2003 Agreement expired on 28 February 2005,[note: 59] and the Defendant occupied the Carved-Out Area for a period after 1 March 2005 without paying any fees or charges to the Plaintiff.[note: 60]

(c)     It was only years later that: (i) the Defendant started paying the Plaintiff utilities charges for electricity and water (“Utilities Charges”) amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises from January 2008 onwards;[note: 61] and (ii) the Defendant paid $30,000 towards invoices issued by the Plaintiff for monthly “warehousing storage and handling” charges (“Occupancy Charges”) from January 2017 onwards.[note: 62] These payments arose because the Defendant’s business was performing better than the Plaintiff’s, and the parties decided to do this to enhance the financial performance of the Plaintiff.[note: 63]

38     That said, George’s and Nancy’s belief that there was merely a licensor-licensee relationship is not determinative as “[i]f the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence” (Goh Gin Chye at [14]). Likewise, the fact that the Plaintiff had labelled and referred to the monthly Occupancy Charges as “warehousing storage and handling” rather than “rent” is not determinative (Chiap Seng Productions Pte Ltd v Newspaper Seng Logistics Pte Ltd [2023] 3 SLR 754 at [44]).[note: 64]

39     In any event, George conceded during cross-examination that the arrangement between the parties after 28 February 2005 was in substance a tenancy,[note: 65] which fortifies my view that a landlord-tenant relationship existed between the parties.

JTC approval

40     It is not disputed that the JTC Conditions required the Plaintiff to seek JTC’s approval for any sub-lease of the IR Premises.

41     The evidence shows that the Plaintiff had liaised with JTC on three separate occasions to seek approval of its sub-lease of the Carved-Out Area to the Defendant: (a) on 3 June 2003 for the occupancy period from 1 March 2003 to 28 February 2005; (b) on 31 December 2004 for the occupancy period from 1 March 2005 to 29 February 2008; and (c) on 10 January 2008 for the occupancy period from 1 March 2008 to 28 February 2011.[note: 66]

42     George was aware that such approval was sought from JTC, and accepted during cross-examination that there was a possibility that JTC would not have allowed the Defendant to occupy the Carved-Out Area in the absence of a landlord-tenant relationship.[note: 67] The JTC approval therefore supports my finding that a landlord-tenant relationship existed between the parties.

The terms of the tenancy prior to the Settlement Deed

The 2003 Written Tenancy Agreement is inadmissible under the Stamp Duties Act

43     Prior to the Settlement Deed, there was only one written agreement entered into between the parties vis-à-vis the Defendant’s occupancy of the Carved-Out Area.[note: 68] This pertained to the 2003 Agreement, which terms were set out in a written Tenancy Agreement dated 1 March 2023 (“2003 Written Tenancy Agreement”). The reason for splitting hairs between the use of the phrase “2003 Agreement” and “2003 Written Tenancy Agreement” will be seen in the following paragraphs.

44     A lease or an agreement for a lease is an instrument chargeable with duty under section 4(1) of the Stamp Duties Act 1929 (2021 Rev Ed) (“Stamp Duties Act”) read with Article 8 of the First Schedule thereto.

45     Under section 52(1) of the Stamp Duties Act, an instrument chargeable with duty must not be admitted in evidence unless the instrument is duly stamped. Section 52(1) states:

Subject to this section, an instrument chargeable with duty must not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, and must not be acted upon, registered or authenticated by any such person or by any public officer, unless the instrument is duly stamped.

46     In the present case, it only became apparent on the ninth and final day of trial that the 2003 Written Tenancy Agreement was not stamped.

(a)     Throughout the proceedings, the parties had taken the position that the 2003 Written Tenancy Agreement was duly stamped. The 2003 Written Tenancy Agreement was included in the Agreed Bundle of Documents for trial;[note: 69] counsel for the Defendant did not raise any objections regarding the admissibility of the 2003 Written Tenancy Agreement despite the Court having informed parties to consider the effect of section 52 of the Stamp Duties Act during the Judge Pre-Trial Conference;[note: 70] and the Defendant’s George informed the Court during cross-examination that he recalled that stamp duty was paid.[note: 71]

(b)     It was only on the final day of trial that Nancy gave evidence during cross-examination that the 2003 Written Tenancy Agreement was not stamped.[note: 72] This happened after numerous questions concerning the terms of the 2003 Written Tenancy Agreement were posed by counsel for both the Plaintiff and the Defendant over the first eight days of trial.

47     I therefore invited parties to address this issue in their Closing Submissions.

(a)     The Plaintiff argues that the 2003 Written Tenancy Agreement is admissible as: (i) George’s evidence that suggests it was stamped should be preferred over Nancy’s evidence; (ii) JTC’s approval of the Plaintiff’s sub-lease of the Carved-Out Area suggests that the 2003 Written Tenancy Agreement must have been stamped; and (iii) the Defendant did not challenge the admissibility of the 2003 Written Tenancy Agreement in its pleadings or during the trial.[note: 73]

(b)     The Defendant takes the opposite position and argues that the Court must not have any regard to the 2003 Written Tenancy Agreement which is unstamped and inadmissible since the Plaintiff has not discharged its burden (under section 105 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”)) of proving that the 2003 Written Tenancy Agreement was stamped. It argues that Nancy’s evidence should be preferred over George’s.[note: 74]

48     The crux of this issue is whether there is sufficient evidence before the Court to show that the 2003 Written Tenancy Agreement was duly stamped.

49     I find that there is insufficient evidence to conclude, on a balance of probabilities, that the 2003 Written Tenancy Agreement was stamped.

(a)     Nancy’s evidence that the 2003 Written Tenancy Agreement was not stamped is significant. She was the person in charge of both the Plaintiff’s and the Defendant’s accounts at the time and confirmed that she did not arrange for the 2003 Written Tenancy Agreement to be stamped.[note: 75] In this regard, there is no factual basis for the Plaintiff to assert that Nancy was not in charge of the Defendant’s accounts at the time,[note: 76] and her evidence during cross-examination instead shows that she was dealing with the Defendant’s accounts in 2003:[note: 77]

Q:    It wasn’t stamped?

A:    No.

Q:    Even though you were the one who was in charge of Texas and Lian Hoe Leong’s accounts?

A:    Yes.

Q:    You didn’t arrange for it to be stamped?

A:    No.

Q:    Even though there was a lawyer involved, you didn’t – the lawyer didn’t ask you to get it stamped?

A:    No.

(b)     While George took the position that stamp duty was paid for the 2003 Written Tenancy Agreement,[note: 78] his evidence must be seen from the perspective that it was his Nancy and Beth who were handling all the documentation and paperwork,[note: 79] and that Nancy’s evidence on this issue would have greater probative value.

(c)     Further, the Plaintiff’s reliance on JTC’s approval of the sub-lease is neither here nor there, as it appears from the evidence that JTC did not require a stamped tenancy agreement before granting approval. This is obvious from the fact that JTC granted approval of the sub-lease for the periods from 1 March 2005 to 29 February 2008 and from 1 March 2008 to 28 February 2011 even though there was no written tenancy agreement in existence for those periods (see [41] above).

50     Consequently, in accordance with, section 52(1) of the Stamp Duties Act, the 2003 Written Tenancy Agreement must not be admitted in evidence, and the Court is to have no regard to its contents. The fact that parties had erroneously laboured under the impression that it was stamped, or that the Defendant did not raise any prior objections to its admissibility did not affect this outcome. To this end, the findings in the High Court decision of Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd [2014] 2 SLR 1342 at [51] are instructive:

A judge has a duty not to admit in evidence any document which is on its face chargeable and unstamped. That is so whether or not an objection is taken, whether or not the unstamped document is tendered by the person liable to pay the duty and whether or not the document has through oversight been admitted and treated as evidence in interlocutory proceedings or in a lower court.

51     The primary impact of this finding is that the Plaintiff is not able to rely on a particular clause in the 2003 Written Tenancy Agreement that according to the pleadings required the Defendant to yield up the Carved-Out Area in good and tenantable repair and condition at the expiry of the term of the lease (“Tenantable Repair Clause”).[note: 80]

52     In coming to this decision, I am mindful that it was possible for the Plaintiff to rely on section 52(2) of the Stamp Duties Act to have the 2003 Written Tenancy Agreement admitted in evidence by making payment of the relevant stamp duty and penalty chargeable. This could have been done after the issue surfaced on the final day of trial. However, the Plaintiff has not done so, and merely states in its Closing Submissions that it “attempted to obtain records from [the Inland Revenue Authority of Singapore] to ascertain whether stamp duty was paid … but was informed that [the Inland Revenue Authority of Singapore] does not keep any such records dating back to 2003”.[note: 81] This was therefore not a situation where the Plaintiff’s case would be irreparably harmed due to the delayed emergence of the issue; and the Plaintiff must accept the consequences under section 52(1) of the Stamp Duties Act if it refuses to take the necessary steps under section 52(2).

53     Further, the case of Asirham Investment Pte Ltd v JSI Shipping (S) Pte Ltd [2008] 1 SLR(R) 117 (“Asirham”), which the Plaintiff relies on, can be distinguished.

(a)     In Asirham, a tenancy agreement was admitted into evidence after the plaintiff tendered a certificate of stamp duty, which showed that the plaintiff had paid stamp duty and a penalty under the Stamp Duties Act. After the trial came to a close, the defendant sought to rely on fresh documentary evidence to argue that the penalty was not fully paid by the plaintiff and that the tenancy agreement was hence inadmissible. The High Court rejected the defendant’s attempt to introduce the fresh evidence and found that there was no evidential basis to conclude that the penalty paid was deficient. The High Court also expressed the view that it was inequitable for the defendant, who had the obligation under the tenancy agreement to pay the stamp duty, to rely on its own omission to pay the stamp duty to avoid liability.

(b)     The facts in the present case are different from Asirham in a couple of material aspects:

(i)       First, the High Court had credible evidence (in the form of a certificate of stamp duty) that permitted it to admit the tenancy agreement into evidence under section 52 of the Stamp Duties Act, and thereafter have regard to the contents therein (such as the clause specifying that it was the defendant who had the obligation under the tenancy agreement to pay the stamp duty).[note: 82] In contrast, there is no documentary or uncontradicted evidence that stamp duty was paid on the 2003 Written Tenancy Agreement, and I am not entitled to peer into the terms of the inadmissible 2003 Written Tenancy Agreement to ascertain whether it was the Plaintiff or the Defendant who bore the obligation to pay the stamp duty.

(ii)       Second, the defendant’s objections in Asirham arose after the close of trial and were premised on fresh evidence that the High Court chose to disregard in the absence of a formal application to introduce the said evidence post-trial.[note: 83] In contrast, the evidence forming the basis of the Defendant’s objections to the admissibility of the 2003 Written Tenancy Agreement arose before the close of trial, and can be considered and taken into account.

(c)     Consequently, I am not persuaded by the Plaintiff’s argument that it would, like the case of Asirham, be inequitable for the Defendant to rely on its omission to pay stamp duty to prevent the Plaintiff from relying on the terms of the 2003 Written Tenancy Agreement;[note: 84] nor am I persuaded by the Plaintiff’s argument that the Defendant has failed to discharge its burden (under section 108 of the Evidence Act) of proving that the stamp duty was not paid because it was the Defendant who was required to pay the stamp duty and would be the sole party with knowledge of whether it was paid.[note: 85] Making such a finding would require me to put the cart before the horse by delving into the terms of the inadmissible 2003 Written Tenancy Agreement to determine whether the Defendant was required to pay the stamp duty. In this regard, I must reiterate that this was not a situation where the Plaintiff had absolutely no way to salvage the situation, as it could have relied on section 52(2) of the Stamp Duties Act to pay the relevant stamp duty and penalty chargeable and have the 2003 Written Tenancy Agreement admitted in evidence.

54     For completeness, the provisions of the Stamp Duties Act do not prevent the Court from making findings vis-à-vis the existence of the 2003 Agreement and the associated landlord-tenant relationship thereunder, which is in any event not in dispute.[note: 86] Aside from written agreements (which have to be stamped), landlord-tenant relationships can be created orally or by conduct (Halsbury’s Singapore on Land Law at [170.0825]), in which case there would be no instrument to be stamped. Consequently, section 52(1) of the Stamp Duties Act does not, in my view, preclude the Court from relying on other evidence (aside from the 2003 Written Tenancy Agreement) to determine the existence of and the accompanying terms of a landlord-tenant relationship; and the mere fact that no stamp duty was paid is not determinative of whether there was a landlord-tenant relationship.[note: 87]

The terms of the 2003 Agreement were not extended beyond 28 February 2005

55     When the 2003 Agreement expired on 28 February 2005, the Defendant did not yield up the Carved-Out Area and continued to occupy the same.[note: 88]

56     As far as George (and by extension the Plaintiff and the Defendant) was concerned, any obligations under the 2003 Agreement could be disregarded since the Defendant was a wholly owned subsidiary of the Plaintiff and he was managing both companies in tandem.[note: 89] In other words, the Plaintiff was simply unconcerned about the nature of the Defendant’s occupancy of the Carved-Out Area and there was no need to consider or discuss the terms of the stay.

57     This must mean that the terms of the 2003 Agreement could not have been extended, and instead expired and no longer applied to the Defendant’s occupancy of the Carved-Out Area. This finding is consistent with the fact that there is no evidence whatsoever showing that the parties referred to the terms of the 2003 Agreement after it expired on 28 February 2005.

58     Instead, a fresh arrangement in the form of a tenancy at will arose, which replaced the fixed term lease under the 2003 Agreement. The nature of a tenancy at will is described in Principles of Singapore Land Law at [17.15]:

A tenancy at will is create when a tenant, with the consent of the owner, occupies land as a tenant on terms that either party may determine the tenancy at any time. Such a lease may be created where the landlord acknowledges the occupier as a tenant but has not set out the terms of the tenancy; the tenant is a tenant at will. Such a tenant may be asked to leave at any time and such a tenancy does not form part of the estate of the tenant. A common example of such a lease is when a tenant of a fixed term lease holds over after the lease has expired, with the consent of the landlord and without paying any rent …

59     For completeness, I disagree with the Defendant’s argument that the 2003 Agreement was terminated by the parties when the Defendant became a wholly owned subsidiary of the Plaintiff around May 2004.[note: 90] While the parties may have decided that it was no longer necessary for the Defendant to pay rent (see [37(b)] above), this is not tantamount to a termination of the 2003 Agreement.

The discernible terms of the tenancy after 28 February 2005

60     When the tenancy at will first arose, it simply meant that the Defendant could occupy the Carved-Out Area. There was no contemplation or discussion of any other terms.

61     Subsequently, the parties agreed that the Defendant would have to make some payments to the Plaintiff:

(a)     There was an agreement for the Defendant to pay the Utilities Charges, which was in place from 2008 onwards.[note: 91]

(b)     There was an agreement for the Defendant to pay the Occupancy Charges, which was in place from 2017 onwards.[note: 92]

62     There was however no agreement between the parties regarding the Defendant’s obligations when it finally vacated the Carved-Out Area. There is simply no evidence showing that anyone considered whether the Defendant would be required to reinstate the Carved-Out Area or yield it up in good and tenantable repair and condition if it vacated the Carved-Out Area. This is understandable since George was managing both companies in tandem and would not have contemplated the need for the Defendant to vacate the Carved-Out Area as long as the Plaintiff remained the owner of the IR Premises.

63     Consequently, at the time before the Settlement Deed was entered into, the only discernible terms of the tenancy at will were:

(a)     The Defendant would pay the Plaintiff Utilities Charges amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises.[note: 93]

(b)     The Defendant would pay the Plaintiff Occupancy Charges of $30,000 per month.[note: 94]

64     The Plaintiff has in its Closing Submissions also argued that there is an implied obligation on the Defendant to keep the Carved-Out Area in a tenant-like manner and to yield it up in the condition it was in when the Defendant started occupying it.[note: 95]

(a)     Based on the Plaintiff’s arguments, an implied obligation at law would at best extend to keeping the Carved-Out in a tenant-like manner, which Lord Denning LJ (as he then was) has described in Warren v Keen [1954] 1 QB 15 at 20 as follows:

The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must of course, not damage the house, wilfully or negligent; and he must see that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.

(b)     However, there is no basis for the Plaintiff’s suggestion that there is an implied obligation at law to yield up the Carved-Out Area in the condition it was in when the Defendant started occupying it.[note: 96] The Plaintiff has not cited any authorities supporting this proposition and it did not elaborate on this argument in its Closing Submissions.

Even if the 2003 Written Tenancy Agreement is admissible and its terms were extended, there was no obligation to reinstate the Carved-Out Area

65     Assuming that I am incorrect in my findings, and that instead (a) the 2003 Written Tenancy Agreement is admissible, and (b) its terms (particularly the Tenantable Repair Clause) were extended beyond 28 February 2005, I would still have found that the Defendant did not have an obligation to reinstate the Carved-Out Area when it vacated the same.

66     The Plaintiff argues that the phrase “good and tenantable repair” under the Tenantable Repair Clause placed an obligation on the Defendant to restore or reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.[note: 97]

67     I disagree. I do not see how such an interpretation can arise when the Tenantable Repair Clause does not refer to the condition of the Carved-Out Area when the Defendant started occupying it in 2003 or use the words “restore” or “reinstate”.[note: 98]

68     In this regard, contrary to the Plaintiff’s suggestion, the English Court of Appeal decision of Proudfoot v Hare [1890] 25 QBD 42 does not equate the term “good and tenantable repair” with an obligation of reinstatement, and instead shows that there is a clear distinction between the two.[note: 99] The English Court of Appeal defined “good and tenantable repair” as “such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it” (at 52 and 55) and made it clear that the “house need not be put into the same condition as when the tenant took it” (at 52).

69     Likewise, the Plaintiff’s reliance on the Singapore High Court decision of Lee Tat Realty Pte Ltd v Limco Products Manufacture Pte Ltd and others and another suit [1998] 2 SLR(R) 258 does not support its argument, as the obligation to maintain a building in the state it was received and to restore it to its original state arose in that case because of contractual obligations to not only “maintain the demised premises in good order and condition”, “keep the demised premises … in good and tenantable repair and condition”, but also to “reinstate the demised premises to their original condition”.

Issue 2 – While there was a landlord-tenant relationship between the Plaintiff and the Defendant under the Settlement Deed, there was no obligation on the Defendant to reinstate the Carved-Out Area

The parties’ positions

70     The Plaintiff takes the position that the landlord-tenant relationship and the prevailing terms existing prior to the Settlement Deed (including an obligation to reinstate the Carved-Out Area) continued to apply to the landlord-tenant relationship under the Settlement Deed.[note: 100]

71     The Defendant argues that it remained an occupier of the Carved-Out Area under the Settlement Deed and that it did not have an obligation to reinstate the Carved-Out Area under the Settlement Deed.[note: 101]

The Settlement Deed reflected a landlord-tenant relationship between the Plaintiff and the Defendant

72     The terms of the Settlement Deed point to the existence of a landlord-tenant relationship between the Plaintiff and the Defendant.

73     Clause 12 of the Settlement Deed referred to the payment of monthly rent of $30,000 from the Defendant to the Plaintiff for the Removal Period.[note: 102] While the description in the corresponding invoices issued by the Plaintiff for the said sum of $30,000 reflected “warehousing storage and handling” charges,[note: 103] this did not change the fact that the parties treated the sum as being rent under the Settlement Deed. This is evident from the letter from the Defendant’s solicitors to the Plaintiff’s solicitors on 23 October 2020 that referred to the payment of “rent” rather than “warehousing storage and handling” charges.[note: 104]

74     Further, the Settlement Deed did not change the fact that the Defendant continued to have exclusive possession of the Carved-Out Area until it vacated the same. As explained at [32] to [35] above, the Defendant’s exclusive possession of the Carved-Out Area is a strong indication that a landlord-tenant relationship existed between the parties.

75     The Plaintiff’s failure to obtain approval from JTC was inconsequential to this finding.

(a)     Based on the letters from JTC, JTC approved the sub-letting of the IR Premises to the Defendant on the basis that the Plaintiff had to own at least 51% of the shareholding of the Defendant.[note: 105] In this regard, Tony accepted during cross-examination that JTC would not have approved the sub-letting of the IR Premises to the Defendant after the parties entered into the Settlement Deed, as the Plaintiff was no longer a shareholder of the Defendant.[note: 106]

(b)     Nevertheless, any breach of the JTC Conditions by the Plaintiff is a separate issue for JTC to address and does not affect the Plaintiff’s arrangement with the Defendant. The relationship between JTC and the Plaintiff and the accompanying obligations by the Plaintiff to seek JTC’s approval of any sub-leases is a matter between JTC and the Plaintiff. If the Plaintiff fails to comply with the JTC Conditions, it is for JTC to take the necessary steps against the Plaintiff relating to the same. This was not a situation where the arrangement between the Plaintiff and the Defendant was subject to the relevant approvals from JTC.

The terms of the tenancy are set out within the Settlement Deed, which does not place an obligation on the Defendant to reinstate the Carved-Out Area

76     The Plaintiff accepts that the terms of the tenancy between the parties are wholly set out in the Settlement Deed. This is apparent from the evidence from the Plaintiff’s current managing director Tony,[note: 107] and the Plaintiff’s pleaded position that the terms of Clause 12 of the Settlement Deed created or formalised the tenancy at will between the parties.[note: 108]

77     The terms of the tenancy under the Settlement Deed are:

(a)     The Defendant would have to remove the Annex K-1 Property from the IR Premises within the Removal Period.

(b)     The duration of the lease was until the earlier of:

(i)       the expiry of the Removal Period; or

(ii)       the vacation of the IR Premises by the Defendant.

(c)     The Defendant would pay the Plaintiff the Occupancy Charges of $30,000 per month plus Utilities Charges amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises.

(d)     The Plaintiff would waive the Occupancy Charges of $30,000 for the first month of the Removal Period.

78     The Settlement Deed does not refer to an obligation for the Defendant to reinstate the Carved-Out Area when it vacated the same. It also does not refer to or incorporate any of the terms under the 2003 Agreement (such as the Tenantable Repair Clause).

79     Consequently, there is no basis for the Plaintiff’s argument that the Settlement Deed placed an obligation on the Defendant to reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.

Issue 3 – The Defendant breached the Settlement Deed by removing the two DBs

The parties’ positions

80     The Plaintiff’s position is that:

(a)     The Defendant breached Clause 12 of the Settlement Deed because it removed the Steel Structure and the two DBs, which were not part of the Annex K-1 Property.[note: 109]

(b)     It did not have any knowledge of the Defendant’s removal of the Steel Structure and the two DBs until after the removal was completed;[note: 110] and hence could not have objected to or prevented the Defendant’s removal of the same.[note: 111]

81     The Defendant’s contends as follows:[note: 112]

(a)     It was entitled under Clause 12 of the Settlement Deed to remove the Steel Structure because it was referred to at S/N 10 of the Annex K-1 Property, which states “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank. Mixer propeller MT07/08, Mixer System MT-09”;[note: 113] and to remove the two DBs because they were referred to at S/N 58 of the Annex K-1 Property which states “1 lot Fabricate steel base with Electrical Panel with motor starter”.[note: 114] The Defendant also argues that it was entitled to remove the Steel Structure and the two DBs as they belonged to it or were treated by the parties as belonging to it.[note: 115]

(b)     The Plaintiff is estopped from raising this claim, as it did not object to the Defendant’s removal of the Steel Structure and the two DBs even though the removal was witnessed by the Plaintiff’s representatives (including Tony and Darren).[note: 116]

The Settlement Deed

82     The Settlement Deed was intended to allow a clean break (ie. complete separation) between the disputing factions of the family.[note: 117]

(a)     The preamble of the Settlement Deed refers to the desire for parties to “completely part ways”.[note: 118]

(b)     Clause 5 of the Settlement Deed is labelled “Full and Final Settlement of the Disputes” and provided a holistic settlement of all claims relating to the management and affairs of the Plaintiff and the Defendant.[note: 119] Clause 5.1 of the Settlement Deed states:

5.1.1  the Parties shall unconditionally and irrevocably waive, forgo, abandon, release and forever discharge each other, from any and all liabilities, obligations, claims and demands, suits, causes of action, costs, charges, debts, dues, sums of money (whether principal, interest or any applicable penalties), damages, judgments and execution of whatsoever nature and howsoever arising, in law or in equity, of every kind and description (including limitation, for fraud) which the Parties had, or hereafter, can, shall or may have against each other in respect of, arising from or in connection with the Disputes (including the subject matter of the Legal Proceedings) and management and affairs of [the Plaintiff] and [the Defendant];

5.1.2  the Parties shall have no further claims or counterclaims against each other in respect of, arising from or in connection with the Disputes and management and affairs of [the Plaintiff] and [the Defendant].

[Emphasis added.]

(c)     Clause 13 of the Settlement Deed is labelled “Clean Break and Non-disparagement”.[note: 120]

83     The Settlement Deed was negotiated over several months and comprehensively outlined the steps to achieve a clean break in several areas concerning the management and affairs of the companies.[note: 121] The Plaintiff (through its current managing director Tony and director Darren) accepts that the removal of the Annex K-1 Property under Clause 12 was a crucial element in facilitating the clean break.[note: 122] Aside from Clause 12, Clause 8 addressed the discharge of corporate and personal guarantees; Clause 9 dealt with the allocation of and corresponding transfer of employees between the companies; and Clause 10 covered the segregation, transfer and deletion of documents, data and information belonging to the companies.

84     Further, Clause 17 of the Settlement Deed was labelled “Entire Agreement” and states:

This Deed embodies all the terms and conditions agreed upon between the Parties as to the subject matter herein and shall supersede and cancel all prior agreements and/or arrangements with respect to the subject matter herein whether such be written or oral. This Deed shall not be varied, altered, changed, supplemented, or amended except by written instruments signed by the Parties.

85     I therefore find that the full extent of the Defendant’s obligations regarding the removal of property from the Carved-Out Area was exhaustively set out in Clause 12 of the Settlement Deed. In particular, the Annex K-1 Property is an exhaustive list of items that the Defendant was required to remove from the Carved-Out Area.[note: 123] This finding is consistent with my earlier finding that the terms of the landlord-tenant relationship between the parties are wholly set out in the Settlement Deed (see Issue 2 above).

The Steel Structure

The parties’ positions

86     The Plaintiff asserts that the Defendant was not entitled to remove the Steel Structure because the Steel Structure belonged to the Plaintiff; and it was not part of the Annex K-1 Property.[note: 124]

87     The Defendant takes a diametrically opposed position. It contends that it was permitted to remove the Steel Structure, which belonged to the Defendant, was treated by the parties as belonging to the Defendant and was reflected at S/N 10 of the Annex K-1 Property.[note: 125]

The history of the Steel Structure

88     The Steel Structure stood on the IR Premises (in the Carved-Out Area) when it was originally purchased by the Plaintiff in early 2003.[note: 126]

89     In late 2003, the Plaintiff permitted the Defendant to modify the Steel Structure to install some Tanks and relinquished ownership of the Steel Structure to the Defendant. This is evident from the following:

(a)     There is an invoice from DIL Technology to the Defendant showing that modification works to the Steel Structure were performed sometime around November 2003 (“DIL Invoice”).[note: 127] The works specified relate to the installation of Tanks in the Steel Structure, which shows that the Plaintiff permitted the Defendant to modify the Steel Structure. For clarity, the mere fact that it was the Defendant who incurred the costs of modification does not mean that the Defendant became the owner of the Steel Structure (Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2013] 4 SLR 409 at [156]).[note: 128]

(b)     After the Tanks were installed, George (who was the managing director of both the Plaintiff and the Defendant at the time) treated the Steel Structure and Tanks as one collective asset that was owned by and belonged to the Defendant; and made a business decision on behalf of both the Plaintiff and the Defendant to allow the ownership of the Steel Structure to vest in the Defendant.[note: 129] There is no evidence from the Plaintiff’s current management (ie. Tony or Darren) to disprove the existence of this transfer of ownership of the Steel Structure to the Defendant. In this regard, I note that Tony’s sole reason for believing that the Steel Structure belonged to the Plaintiff is based on it having been part of the IR Premises when it was first purchased,[note: 130] and there is no evidence showing that he was involved in the specific arrangements, circumstances and details surrounding the modifications to the Steel Structure or the change in ownership of the Steel Structure;[note: 131] and that Darren was not involved in the Plaintiff’s business until 2007, which was well after the event.[note: 132] To this end, the fact that the Defendant did not pay the Plaintiff for the Steel Structure is inconsequential,[note: 133] as the evidence shows that the Plaintiff allowed the ownership of the Steel Structure to vest in the Defendant without the payment of any fees.[note: 134]

(c)     The Defendant’s ownership of the Steel Structure is also reflected in contemporaneous documents:

(i)       The Defendant’s Fixed Asset Register refers to “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank, Mixer propeller MT07/08, Mixer System MT-09”, which coincides with the language adopted in the DIL Invoice vis-à-vis the modifications performed to the Steel Structure around November 2003,[note: 135] and the exact wording of S/N 10 of the Annex K-1 Property.

(ii)       The Defendant’s Financial Statements for the year ending 31 December 2003 shows an increase in asset value for “Machinery and equipment”, which George has explained reflects the value of the collective asset comprising the Steel Structure and Tanks.[note: 136] In this regard, I am mindful that Tony had (as director of the Defendant at the time) signed off to acknowledge that the figures in the Financial Statement were a “true and fair view of the state of the affairs of the company as at December 31, 2003”.[note: 137]

(d)     Further, Nancy (who was the finance manager of both the Plaintiff and the Defendant at the time)[note: 138] has given evidence that the Steel Structure was treated as the Defendant’s asset.[note: 139] As she was the one handling the accounts for both companies, her knowledge and position is testament to how both the Plaintiff and the Defendant accepted that the Steel Structure was owned by the Defendant from November 2003 onwards.

90     In any event, the ownership of the Steel Structure prior to the Settlement Deed being entered has limited impact, as the relevant question in this case relates to whether the Steel Structure was part of the Annex K-1 Property. If it was, the Defendant would be permitted to remove it even if it was owned by the Plaintiff prior to the Settlement Deed.

The removal of the Steel Structure in November 2020

91     I find that the Steel Structure is referred to under S/N 10 of the Annex K-1 Property and that the Defendant was entitled to remove it.

92     S/N 10 of the Annex K-1 Property states “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank. Mixer propeller MT07/08, Mixer System MT-09”,[note: 140] with the abbreviation “s.s.” being a reference to the Steel Structure.

93     The evidence shows that the Plaintiff is aware that the Steel Structure is referred to in S/N 10 of the Annex K-1 Property, as Darren indicated during cross-examination that “my understanding on item 10 is just that it’s open – open mix – open top mixing tank with heater and controller, the lot – on lot attached to the steel structure”.[note: 141] Darren’s concession has some implications:

(a)     It contradicts and disposes of the Plaintiff’s argument that S/N 10 of the Annex K-1 Property only covered the heating tank and not the Steel Structure.[note: 142] In this regard, it is pertinent that the Plaintiff’s current managing director Tony has deferred to Darren’s understanding of S/N 10 of the Annex K-1 Property since Darren was the one in charge of it.[note: 143]

(b)     It raises concerns and doubts over the credibility of Darren’s evidence on this issue of whether the Defendant was permitted to remove the Steel Structure from the Carved-Out Area, as he had prior to the said concession taken a drastically different position by insisting that “Annex K-1 just show the heating tank, so the guy bring me to the heating tank and pointed me, this is the heating tank, so I took the photo of it”.[note: 144]

94     My finding that the Defendant was permitted to remove the Steel Structure under S/N 10 of the Annex K-1 Property is fortified by the following evidence.

95     First, the Plaintiff accepts that it was the Defendant who prepared the description for S/N 10 of the Annex K-1 Property and that the Defendant would be in a better position to know what the description meant.[note: 145] Suffice to say that the Defendant considers the Steel Structure to be part of S/N 10 of the Annex K-1 Property.

96     Second, George (and by extension the Plaintiff and the Defendant) treated the Steel Structure and Tanks as one collective asset belonging to the Defendant (see [89(b)] above). Indeed, Darren accepts that he (and hence the Plaintiff) was aware that the Defendant had been operating the “whole thing as an integrated unit”.[note: 146]

97     Third, the evidence shows that part of the Steel Structure had to be cut for the Tanks (that the Plaintiff accepts belonged to the Defendant) to be removed. This was not a situation where the Tanks could have been removed without any form of tampering with the Steel Structure. This lends credence to the Defendant’s position that the Steel Structure and Tanks are one collective asset.

98     The Defendant relied on the evidence from Mr Zheng Zubin (“Zheng”) of Tong Sun Pte Ltd (“Tong Sun”), who was the contractor engaged by the Defendant to remove the Steel Structure from the Carved-Out Area, and is also the contractor subsequently engaged by the Plaintiff to construct a new steel structure after the Defendant vacated the Carved-Out Area.[note: 147] According to Zheng, part of the Steel Structure had to be cut for the Tanks to be removed.[note: 148] This view was reached after Zheng had performed an onsite assessment of the situation and the prevailing circumstances in the Carved-Out Area,[note: 149] and formed the conclusion that the Tanks could not have been hoisted out without cutting the Steel Structure due to limitations arising from the ceiling height.[note: 150] His evidence comes from the perspective of someone with firsthand knowledge and understanding of the onsite conditions. I therefore found Zheng’s views, which were objective and coherent, to have significant evidential value.

99     In contrast, the evidence relied on by the Plaintiff to show that the Steel Structure did not have to be cut to remove the Tanks was tenuous and unhelpful.

(a)     The Plaintiff relied on evidence from Darren and Mr Soh Eng Chee (“Soh”) of ELS Construction Pte Ltd (“ELS”), who assisted the Plaintiff in performing other construction works after the Defendant vacated the Carved-Out Area.

(b)     Darren’s perspective is that the Tanks could have been removed without cutting the Steel Structure.[note: 151] Darren formed this view after observing Tong Sun lift new tanks into the new steel structure it constructed for the Plaintiff after the Defendant vacated the Carved-Out Area; and by extrapolating the construction process in reverse order.[note: 152] However, Darren’s extrapolation is unhelpful because Tong Sun’s Zheng has confirmed that the Steel Structure had to be cut in order to remove the Tanks.

(c)     Soh’s perspective is that the Tanks could have been hoisted out from the top of the Steel Structure.[note: 153] I did not find Soh’s evidence to be helpful as:

(i)       There is no evidence showing that he performed an onsite inspection and assessment of the situation around the time that the Tanks and Steel Structure were removed in November 2020. This stands in stark contrast to what Tong Sun had done before Zheng was able to reach his view.

(ii)       There is a mathematical conundrum surrounding Soh’s perspective. The area’s maximum ceiling height was about 7.5-8m;[note: 154] the Steel Structure was around 3.2m high;[note: 155] there were two 3.8m tall Tanks that had to be removed from the Steel Structure;[note: 156] and Mr Soh’s evidence is that a crane would require a minimum of 0.8-1m between the ceiling and the top of the Tank being hoisted.[note: 157] Consequently, the vertical extension required to remove the 3.8m Tank would be between 7.8m (ie. 3.2m + 3.8m + 0.8m) and 8m (ie. 3.2m + 3.8m + 1m). If the ceiling height was 7.5m, both the 7.8m and 8m vertical extensions would exceed it, rendering hoisting impossible. If the ceiling height was 8m, the 7.8m vertical extension would fit, while the 8m vertical extension would leave no margin for error. Given the permutations and Mr Soh’s lack of an onsite inspection, I am unable to accept his evidence on this point.

100    Consequently, I prefer Zheng’s evidence over Darren’s and Soh’s, and accept that part of the Steel Structure had to be cut for the Tanks to be removed. In this regard, I note that the Plaintiff has in its Closing Submissions conceded that the Steel Structure would at the very least have to be cut in the front to create a gap so that the Tanks could be removed[note: 158] – this was a significant departure from its earlier position that the Steel Structure did not have to be cut at all, which is evident from Darren’s evidence (see [99(b)] above).

101    Fourth, the Plaintiff’s conduct after it was aware that the Steel Structure was cut by the Defendant shows that it originally accepted that the Steel Structure was meant to be removed as part of the Annex K-1 Property.

(a)     The evidence shows that the Plaintiff did not stop the Defendant from cutting the Steel Structure to remove the Tanks even though it was aware of the same.

(b)     On 19 November 2020, the Plaintiff visited the Carved-Out Area together with its solicitors to inspect the area. The Plaintiff accepts that by this time, it was aware that the Defendant had already begun cutting the Steel Structure by removing some railings and parts of the upper platform.[note: 159] However, rather than notifying the Defendant to stop tampering with the Steel Structure, the Plaintiff took no action.[note: 160] This was despite Tony’s evidence that the Plaintiff would have promptly intervened to prevent the Defendant from removing any items that it was not permitted to remove under the Settlement Deed.[note: 161]

(c)     Subsequently, the Plaintiff continued to remain silent and did not ask the Defendant to stop tampering with the Steel Structure even though: (i) it was aware that the Defendant was cutting it to remove the Tanks;[note: 162] and (ii) Leroy sent an email at 5.37pm on 19 November 2020 to inform the Plaintiff that the Defendant would be removing the said Tanks from the Carved-Out Area between 21 and 22 November 2020.[note: 163]

(d)     It was only on 25 November 2020 that the Plaintiff’s solicitors wrote to the Defendant’s solicitors to raise issues regarding the removal of the Steel Structure.[note: 164] This was after the Steel Structure and the Tanks were already removed and is a departure from the Plaintiff’s earlier conduct that suggests that the Steel Structure was meant to be removed as part of the Annex K-1 Property.

(e)     In this regard, I find Darren’s explanation as to why he did not directly confront the Defendant on 19 November 2020 to stop them from tampering with the Steel Structure to be unbelievable. According to Darren, he did not confront the Defendant because the relationship between the parties was “tense at that point of time” and he wanted the Plaintiff’s solicitors to inform the Defendant of its objections to the removal of the Steel Structure.[note: 165] However, this explanation contradicts the fact that on 20 November 2020, the Plaintiff saw the Defendant removing some blue racks from the Carved-Out Area that were not part of the Annex K-1 Property, and immediately confronted the Defendant to stop them from removing the racks (instead of waiting for its solicitors to communicate with the Defendant).[note: 166] To this end, it is of particular note that Darren personally communicated with Leroy over telephone calls or WhatsApp messages on this issue surrounding the blue racks,[note: 167] and it is clear that the communication channels between Darren and Leroy were open.

(f)     Further, I do not accept the Plaintiff’s argument that it did not have to confront the Defendant on 19 November 2020 to stop them from tampering with the Steel Structure because it believed that the Steel Structure was being cut to create a gap to allow the Tanks to be removed laterally (rather than being fully hoisted).[note: 168] This argument is unsupported by any evidence from the Plaintiff and appears to be an afterthought. It is also at odds with Darren’s explanation that he did not confront the Defendant because the relationship between the parties was “tense at that point of time”,[note: 169] and contradicts Darren’s evidence that the Steel Structure did not have to be cut for the Tanks to be removed (see [99(b)] above).

102    In coming to this decision, I did not place any significance on the Defendant’s argument surrounding the Plaintiff’s failure to raise the claim for the Steel Structure in the original Statement of Claim filed on 5 February 2021.[note: 170] The fact remains that the Plaintiff had raised this issue from as early as 25 November 2020 when its solicitors wrote to the Defendant’s solicitors,[note: 171] and that the Court had granted the Plaintiff leave to amend its pleadings to include the claim.

103    In view of the above, the Defendant was entitled to remove the Steel Structure, which was part of the Annex K-1 Property. It is therefore not necessary for me to deal with the Defendant’s alternative argument that the Plaintiff was estopped from raising the said claim.[note: 172]

The two DBs

104    The Defendant was not entitled to remove the two DBs, which were not part of the Annex K-1 Property.[note: 173]

105    I am unable to accept the Defendant’s assertion that the two DBs are referred to at S/N 58 of the Annex K-1 Property, which states “1 lot Fabricate steel base with Electrical Panel with motor starter”.[note: 174]

106    First, the two DBs were located at separate areas within Building 2,[note: 175] and there is no evidence from the Defendant to show that they were both located on “1 lot Fabricate steel base”.

107    Second, the term “electrical panel” is singular and does not seem to correspond with the two DBs.

108    In this regard, it did not matter whether the Defendant was the one who installed the two DBs since the full extent of the Defendant’s obligations in relation to the removal of property from the Carved-Out Area was exhaustively set out in Clause 12 of the Settlement Deed (see [85] above).

109    Further, the Defendant’s argument that the Plaintiff was estopped from bringing this claim is untenable.[note: 176] There is simply no evidence of any representation being made by the Plaintiff or reliance on such representation by the Defendant.[note: 177] I do not see how the Plaintiff’s failure to object to the Defendant’s removal of the two DBs can amount to a representation when there is no evidence that any of the Plaintiff’s representatives ever saw the two DBs being removed.

Conclusion on Issue 3

110    The Defendant was permitted under the Settlement Deed to remove the Steel Structure from the Carved-Out Area.

111    However, the Defendant’s removal of the two DBs from the Carved-Out Area was in breach of the Settlement Deed.

112    For completeness, there was no allegation of a breach of the Settlement Deed arising from the Defendant’s failure to remove the Fencing or to restore the Uneven Ground Surface. This was rightfully so, as the Settlement Deed did not require these acts to be performed, and the Plaintiff instead relies on the tort of waste as the basis of its claim against the Defendant for these items.

Issue 4 – The Defendant is liable for the tort of waste with regards to the removal of the two DBs

The parties’ positions

113    The Plaintiff contends that the Defendant has committed the tort of waste by removing the Steel Structure and the two DBs, failing to remove the Fencing, and failing to restore the Uneven Ground Surface.[note: 178]

114    The Defendant argues that:

(a)     The Plaintiff’s claim is precluded under the Clause 5.1 of the Settlement Deed which provided for a full and final settlement of the disputes between the parties.[note: 179]

(b)     The tort of waste does not apply in this case because there was no landlord-tenant relationship between the parties.[note: 180]

Law on the tort of waste

115    This appears to be the first reported case in Singapore that deals with the tort of waste.

116    The tort of waste refers to an act or omission that alters the nature of a property to the prejudice of the person who has the remainder or reversion of the property (ie. the owner).

(a)      Principles of Singapore Land Law states at [3.17]: “By definition, waste is any alternation to the nature of the land, whether the land is improved or otherwise.”

(b)      Clerk & Lindsell on Torts (Michael Jones gen ed) (Sweet & Maxwell, 23rd Ed, 2020) (“Clerk & Lindsell”) states at [18-97]: “The action for waste is an action in tort. Waste has been defined to be “the committing of any spoil or destruction in houses, land etc by tenants, to the damage of the heir, or of him in reversion or remainder”.”

(c)      Hill & Redman’s Law of Landlord and Tenant, Issue 142 October 2023 states at A[3328]: “”Waste’ is an act which alters the nature of the land. It has been defined as a spoil or destruction to houses, gardens, trees, or other corporeal hereditaments, to the injury of the reversion.”

(d)      Halsbury’s Singapore on Land Law states at [170.0948]: “Waste consists of any act or omission which causes a lasting alteration to the nature of the land in question to the prejudice of the person who has the remainder or reversion of the land. The obligation not to commit waste is an obligation in tort, and is independent of contract or implied covenant.”

(e)      Halsbury’s Laws of England vol 62 (LexisNexis, 5th Ed, 2016) (“Halsbury’s England on Land Law”) states at [324]: “Waste consists of any act or omission on the part of the tenant which causes a lasting alteration to the nature of the land in question to the prejudice of the person who has the remainder or reversion of the land. The obligation not to commit waste is an obligation in tort, and is independent of contract or implied covenant.”

117    Waste is either voluntary or permissive.

Voluntary waste

118    Voluntary waste refers to an act that results in the destruction of the property, such as pulling down houses, altering their structure, breaking down walls, removing the landlord’s fixtures or removing the tenant’s fixtures without making good the damage (Mancetter Developments Ltd v Garmanson Ltd [1986] 1 All ER 449 (“Mancetter”) at 452e, 453a and 457a; Principles of Singapore Land Law at [3.19]; Clerk & Lindsell at [18-97]; Halsbury’s Singapore on Land Law at [170.0948]; Halsbury’s England on Land Law at [324]).

119    Under section 4(3) of the Civil Law Act (Cap 43, 1999 Ed), a tenant of life or lives and leasehold tenants (which includes a tenant at will under section 4(4)) are liable for voluntary waste unless the tenancy is without impeachment of waste or there is some other right to commit waste (Principles of Singapore Land Law at [3.19]; Halsbury’s Singapore on Land Law at [170.0950]). Further, the English Court of Appeal in Mancetter suggests that licensees would be liable for voluntary waste (at 455a and 456g), and the author of Rosy Thornton, Property Disrepair and Dilapidations: A Guide to the Law (Fourmat Publishing, 1st Ed, 1992) suggests that it “extends to every occupier of land who is not a trespasser” (at 24).

120    The case of Mancetter is instructive in understanding the tort of waste.

(a)     The material facts of Mancetter are as follows:

(i)       The plaintiff granted a lease of an industrial building to a tenant, who was permitted to cut holes in the walls of the building to install extractor fans and pipes. The fans and pipes ensured that the building remained wind and weatherproof despite the holes.

(ii)       A few years later, the first defendant purchased the tenant’s fixtures at the building (including the said fans and pipes) and took over the original tenant’s occupancy of the building.

(iii)       The first defendant subsequently vacated the building and removed the fans and pipes without patching up the holes in the walls, which meant that the building was no longer wind and weatherproof.

(b)     The English Court of Appeal discussed the law concerning the tort of waste and made several findings:

(i)       Voluntary waste requires a commissive or positive act rather than a mere omission (at 454b, 455i, 457f).

(ii)       The first defendant had an obligation to make good or repair (“Waste Repair Obligation”) damage left behind by the removal of tenant’s fixtures by filling the holes in the wall after the fans and pipes were removed. If the holes were not filled, the reversion of the property suffered damaged as the building was no longer wind and weatherproof (at 454e and 457f).

(iii)       For the Waste Repair Obligation to arise, the damage had to be structural rather than decorative; and the obligation would not arise where the damage was de minimis, such as where screw or nail holes are left behind (at 454e-f, 455d-e).

(iv)       The act of waste was not committed by the original tenant when the holes were first cut in the wall. This was since the cutting of the holes was not inconsistent with the purport of the tenancy with the original tenant and hence permitted by the plaintiff (at 456h-457e, where Kerr LJ disagreed with Sir George Waller’s dissenting view).

(v)       Kerr LJ also expressed his view that cases involving the tort of waste would be rare, as the reinstatement or repair of a property would usually be governed by contractual stipulations that the parties may be bound to sue on (at 456c-h).

121    Further, the destruction of a property while using it for the purpose of the occupancy in a reasonable and proper manner (as opposed to a wilful or negligent manner) is not waste (Halsbury’s England on Land Law at [325] and Woodfall’s Law of Landlord and Tenant, Release 115 January 2019 at [13.114], citing Saner v Bilton (1878) 7 ChD 815 and Manchester Bonded Warehouse Co v Carr (1880) 5 CPD 507 (“Manchester Bonded Warehouse”)). In Manchester Bonded Warehouse, the court considered whether the defendant was liable for waste when a building fell because it was overloaded with flour, and made the following findings which are instructive:

The question in these cases is whether it is the tenant's duty to ascertain what he can do with safety to the property, or whether he is not entitled to assume that it is fit to be used for the purposes for which it is let and for which it is apparently fit. We are of opinion that the latter is the true view, and that, in the absence of an express agreement to that effect, a tenant is not liable for the destruction of the property let to him if such destruction is in fact due to nothing more than a reasonable use of the property, and any use of it is in our opinion reasonable provided it is for a purpose for which the property was intended to be used, and provided the mode and extent of the user was apparently proper, having regard to the nature of the property and to what the tenant knew of it and to what as an ordinary business man he ought to have known of it. To hold a tenant liable for the destruction of the property by its reasonable use as above explained, would be to hold him liable for latent faults and defects in the property demised. We are of opinion that he is not liable for such faults and defects, in the absence of some express agreement on his part imposing such liability upon him.

122    In view of the above, it is clear that the tort of voluntary waste has a narrower scope than a contractual obligation to reinstate the premises to its original condition since voluntary waste requires a positive act rather than a mere omission; and the Waste Repair Obligation only arises if a positive act results in damage that goes beyond a de minimis level. Consequently, it is conceptually wrong for the Plaintiff to argue that the tort of waste imposes a duty on the Defendant to reinstate the Carved-Out Area to the condition it was in when the Defendant first started occupying it in 2003.[note: 181]

Permissive waste

123    Permissive waste refers to an omission that results in damage, such as allowing a property to fall into disrepair by neglect (Mancetter at 453; Principles of Singapore Land Law at [3.20]; Clerk & Lindsell at [18-98]; Halsbury’s Singapore on Land Law at [170.0948]; Halsbury’s England on Land Law at [324]).

124    While a tenant for years may be found liable for permissive waste, a leasehold tenant would not (Mancetter at 453; Principles of Singapore Land Law at [3.20]; Clerk & Lindsell at [18-98]; Halsbury’s Singapore on Land Law at [170.0950]; Halsbury’s England on Land Law at [324]).

125    Consequently, permissive waste is not relevant to the present matter.

The effect of the Settlement Deed on the Plaintiff’s reliance on the tort of voluntary waste

126    As explained at [82]-[85] above, Clause 5.1 of the Settlement Deed resulted in a holistic settlement of all claims relating to the management and affairs of the Plaintiff and the Defendant.

127    The question that arises is whether claims arising from the tort of voluntary waste fall within the purview of the management and affairs of the Plaintiff and the Defendant.

128    The Plaintiff argues that it does not,[note: 182] while the Defendant argues otherwise.[note: 183]

129    I find that the scope of the settlement under Clause 5.1 of the Settlement Deed does not extend to the tort of voluntary waste. As mentioned at [118] above, voluntary waste refers to an act that results in the destruction of the property. I do not see how this can be characterised as an issue relating to the management and affairs of the Plaintiff and the Defendant under Clause 5.1 of the Settlement Deed.

130    Consequently, I find that the Settlement Deed does not preclude the Plaintiff from relying on the tort of voluntary waste.

The alleged instances of voluntary waste

The Steel Structure

131    I have found that the Defendant was entitled to remove the Steel Structure under the Settlement Deed (see [91] above).

132    The Defendant’s removal of the Steel Structure was therefore permitted by the Plaintiff and cannot amount to an act of voluntary waste.

The two DBs

133    I have found that the Defendant was not permitted to remove the two DBs under the Settlement Deed (see [104] above).

134    Consequently, the Defendant’s removal of the two DBs was an act that destroyed part of the Carved-Out Area and constituted an act of voluntary waste.

The Fencing

135    It is not disputed that the Fencing was built by the Defendant and present at the Carved-Out Area when the Settlement Deed was entered into.

136    The Plaintiff alleges that the Defendant committed the tort of waste by failing to remove the Fencing, which is an omission by the Defendant.[note: 184]

137    As it is clear that voluntary waste requires a positive act rather than an omission, the Plaintiff’s claim vis-à-vis the removal of the Fencing fails.

The Uneven Ground Surface

138    There is an Uneven Ground Surface because:

(a)     Certain parts of the ground were raised (“Raised Platforms”) compared to the surrounding areas that were consequently lower in height (“Ground Level Areas”).[note: 185] The Raised Platforms were made of concrete and Tanks were placed on them.[note: 186]

(b)     Certain parts of the ground were depressed when compared with the Ground Level Areas (“Depressed Areas”).[note: 187]

It is not disputed that the Raised Platforms and Depressed Areas (and hence the Uneven Ground Surface) existed when the Settlement Deed was entered into.

139    The Plaintiff’s allegations surround the Defendant’s failure to restore the Uneven Ground Surface by levelling it. This would require the Defendant to remove the Raised Platforms and raise the Depressed Areas to match the height of the Ground Level Area.[note: 188] However, any failure by the Defendant to remove the Raised Platforms or raise the Depressed Areas are omissions rather than positive acts, which do not attract liability for voluntary waste.[note: 189]

140    For the Plaintiff to succeed in its claim, it must therefore show that the Waste Repair Obligation arose due to damage to the existing Raised Platforms or Depressed Grounds when the Tanks were removed,[note: 190] with such damage going beyond a de minimis level. This would be similar to the situation in Mancetter, where the plaintiff was able to show that the Waste Repair Obligation arose due to damage (ie. the holes in the wall that had structural significance) when the fans and pipes were removed.

141    In this regard, the Plaintiff has not given any evidence showing that actionable damage was caused by the removal of the Tanks. At its highest, the photographs relied on by the Plaintiff show some bulging and differences in the colour of the ground of the Raised Platforms where the Tanks were previously located[note: 191] – the alleged damage did not go beyond a de minimis level as it did not have any structural significance (unlike the situation in Mancetter). Further, the Plaintiff’s evidence is that any alleged depressions were minor in nature, which again does not go beyond the de minimis level required.[note: 192]

142    Further, I am mindful that the placement of the Tanks on the Raised Platforms was permitted by the Plaintiff prior to the Settlement Deed.[note: 193] This was therefore done in accordance with the purpose of the Defendant’s occupancy of the Carved-Out Area and cannot amount to waste (see [121] above). To this end, I do not agree with the Plaintiff that the Defendant should be precluded from relying on this argument because it was not specifically pleaded[note: 194] as: (a) it is trite that it is the material facts, rather than the legal results or consequences, that need to be pleaded (How Weng Fan and others v Sengkang Town Council and other appeals [2023] 2 SLR 235 at [19]); and (b) the material facts relating to the purpose of the Defendant’s occupancy of the Carved-Out Area have been pleaded.[note: 195]

143    The Plaintiff’s claim under the tort of waste regarding the restoration of the Uneven Ground Surface therefore fails.

Conclusion on Issue 4

144    The Settlement Deed does not preclude the Plaintiff from relying on the tort of waste, which the Plaintiff has proven vis-à-vis the two DBs.

Issue 5 – The Defendant is liable to pay the Plaintiff $14,017

145    The Plaintiff is only entitled to damages relating to the Defendant’s removal of the two DBs, which was in breach of the Settlement Deed and also attracted liability under the tort of waste.

146    The Plaintiff has quantified its claim for the re-installation of the two DBs at $28,997 based on an invoice dated 11 March 2021 issued by its contractor ELS (“11 Mar 2021 Invoice”).[note: 196]

147    According to the explanation of ELS’s Soh, the 11 Mar 2021 Invoice covered the following areas of work (including 7% GST):[note: 197]

(a)     $13,054 for the installation of the two DBs;

(b)     $963 for the preparation of a single line diagram relating to the two DBs; and

(c)     $14,980 for electrical works relating to an air compressor that had nothing to do with the two DBs.

148    I therefore find that the Plaintiff is entitled to damages of $14,017 in relation to the Defendant’s removal of the two DBs (ie. the work set out at [147(a)] and [147(b)] above), plus interest at the rate of 5.33% per annum from the date of writ to the date of judgment.[note: 198]

Conclusion

149    A summary of my findings is as follows:

(a)     The Plaintiff succeeds in its claim against the Defendant for damages in relation to the removal of the two DBs. The Defendant is liable to pay the Plaintiff $14,017 plus interest at the rate of 5.33% per annum from the date of writ to the date of judgment.

(b)     The Plaintiff’s claim against the Defendant regarding the removal of the Steel Structure, the failure to remove the Fencing and the failure to restore the Uneven Ground Surface fails.

150    The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

151    In closing, I thank counsel for the Plaintiff, Mr Chu Hua Yi and his team, and counsel for the Defendant, Mr Philip Ling and his team, for the helpful submissions.

[note: 1]Plaintiff’s Opening Statement dated 15 April 2024 (“PFOpening”)_[1]-[2].

[note: 2]Defence (Amendment No. 2) (“DF”)_[5A(a)]; Affidavit of evidence-in-chief (“AEIC”) of Lim Tiong Beng (“PFAEIC_Tony”)_[6]-[7], [10]-[12]; AEIC of Lim Tong Yam (“DFAEIC_George”)_[11].

[note: 3]PFAEIC_Tony_[13]; DFAEIC_George, [11], [17]-[18].

[note: 4]AEIC of Lin Xiaoxian (“PFAEIC_Darren”)_[10(3)].

[note: 5]DF_[5A(b)]- [5A(c)]; DFAEIC_George_[12].

[note: 6]DF_[5A(d)]; PFAEIC_Tony_[13], [22(f)]; DFAEIC_Geroge_[17].

[note: 7]DF_[5A(g)]; PFAEIC_Tony_[23]; DFAEIC_George_[21]; 2PBOD_217-218.

[note: 8]PFAEIC_Tony_[24]-[25]; DFAEIC_George_[21], [31].

[note: 9]DF_[5A(m)].

[note: 10]DFAEIC_George_[9]-[10].

[note: 11]2TRANS_PDF14:15-PDF15:24, PDF17:2-8. *[Day of Trial]TRANS_[PDF Page Number]:[Lines in Transcript].

[note: 12]PFAEIC_Tony_[27]-[28]; DFAEIC_George_[20].

[note: 13]DF_[4], [5B(a)]; PFAEIC_Darren_[4]; DFAEIC_George_[24]-[25].

[note: 14]Defendant’s Closing Submissions dated 2 August 2024 (“DFClosingSubs”)_[13]. The written terms of the 2003 Agreement as set out in a Tenancy Agreement dated 1 March 2003 are inadmissible pursuant to section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) see [43]-[544] of this Judgment.

[note: 15]1AB_120; 1TRANS_PDF23:17-20, PDF26:1-5; 5TRANS_PDF165:6-9.

[note: 16]Statement of Claim (Amendment No. 3) (“SOC”)_[2B].

[note: 17]SOC_[3]; DF_[6].

[note: 18]DFAEIC_George_[37]; 1TRANS_PDF65:22-23, PDF117:1-3; 2TRANS_PDF32:22-25.

[note: 19]1AB_16.

[note: 20]1AB_30, 93-98.

[note: 21]1AB_30-31.

[note: 22]1AB_21.

[note: 23]SOC_[6].

[note: 24]PFAEIC_Darren_[21]; PFAEIC_Tony_[61].

[note: 25]SOC_[6]; PFAEIC_Darren_[22]; PFAEIC_Tony_[62].

[note: 26]PFAEIC_Darren_[24]-[25]; PFAEIC_Tony_[63]-[64].

[note: 27]SOC_[10].

[note: 28]PFAEIC_Darren_[25].

[note: 29]PFOpening_[7]; 3TRANS_PDF7:21-PDF8:7.

[note: 30]PFAEIC_Darren_[29]-[30]; PFAEIC_Tony_[69]-[70].

[note: 31]PFAEIC_Darren_[36]; PFAEIC_Tony_[76].

[note: 32]2DBOD_6; 1TRANS_PDF152:13-PDF154:4. One of the DBs is labelled as DB-A on 2DBOD_6, while the other is near to the exit E2 on 2DBOD_3. See also AEIC of Soh Eng Chee (“PFAEIC_Soh”)_[11], 16; 5TRANS_PDF20:19-PDF21:12

[note: 33]PFOpening_[17].

[note: 34]PFOpening_[18]-[21]; Plaintiff’s Closing Submissions dated 2 August 2024 (“PFClosingSubs”)_[65]-[68].

[note: 35]PFOpening_[22]-[24]; PFClosingSubs_[60]-[64].

[note: 36]PFopening_[25]-[29]; PFClosingSubs_[40]-[44].

[note: 37]DFAEIC_George_[6]; DFClosingSubs_[85]-[94].

[note: 38]Defendant’s Opening Statement dated 16 April 2024 (“DFOpening”)_[12], 15-16; DFClosingSubs_[10(c)].

[note: 39]DFOpening_5-12; DFClosingSubs_[10(a)].

[note: 40]DFOpening_14; DFClosingSubs_[10(b)].

[note: 41]DFOpening_13-14; DFClosingSubs_[74]-[76].

[note: 42]PFClosingSubs_[13], [37].

[note: 43]PFClosingSubs_[40]-[43].

[note: 44]DFClosingSubs_[10(a)], [66]-[68].

[note: 45]DFClosingSubs_[10(b)], [47].

[note: 46]4AB_3.

[note: 47]PFAEIC_Tony_[50]; PFAEIC_Darren_[13(5)].

[note: 48]PFAEIC_Tony_[47]; PFAEIC_Darren_[13(2)].

[note: 49]PFAEIC_Darren_404.

[note: 50]2DBOD_3; 1TRANS_PDF132:23-PDF133:11.

[note: 51]PFAEIC_Darren_[13(2)].

[note: 52]PFAEIC_Darren_[13(4)].

[note: 53]DFClosingSubs_[39]; 3TRANS_PDF103:1-12, PDF109:23-24, PDF110:19.

[note: 54]Plaintiff’s Reply Submissions dated 23 August 2024 (“PFReplySubs”)_[32].

[note: 55]2TRANS_PDF46:23-PDF49:4, PDF78:11-PDF79:5, PDF80:22-PDF81:19.

[note: 56]DFAEIC_George_[30]; AEIC of Lim Poh Eng Nancy (“DFAEIC_Nancy”)_[15].

[note: 57]PFAEIC_Tony_[24]-[25]; DFAEIC_George_[21], [31].

[note: 58]DFAEIC_George_[31]; DFAEIC_Nancy_[16].

[note: 59]DFAEIC_George_[33]; DFAEIC_Nancy_[18].

[note: 60]DFAEIC_George_[34]; DFAEIC_Nancy_[18]-[19].

[note: 61]DFAEIC_George_[34]; DFAEIC_Nancy_[19]; 2AB_5-6.

[note: 62]2AB_232.

[note: 63]DFAEIC_George_ [35]; DFAEIC_Nancy_[20]-[22].

[note: 64]PFClosingSubs_[39].

[note: 65]5TRANS_PDF166:14-16, PDF178:25-PDF179:5.

[note: 66]PFAEIC_Darren_[10(4)]-[10(10)]; PFAEIC_Tony_[39]-[40]; AEIC of Lim Pei Pei (“DFAEIC_Beth”)_[9]-[14]; 1AB_120-136.

[note: 67]5TRANS_PDF178:18-24.

[note: 68]DFClosingSubs_[23]; 1TRANS_PDF22:12-15; 2TRANS_PDF27:13-16.

[note: 69]1AB_3-6.

[note: 70]Notes of Evidence dated 3 April 2024.

[note: 71]5TRANS_PDF140:15.

[note: 72]9TRANS_PDF60:1-21.

[note: 73]PFClosingSubs_[5].

[note: 74]DFClosingSubs_[13]-[21].

[note: 75]9TRANS_PDF60:1-21.

[note: 76]PFClosingSubs_5(5); PFReplySubs_[11]-[12]

[note: 77]9TRANS_PDF60:11-21.

[note: 78]5TRANS_PDF140:15.

[note: 79]5TRANS_PDF141:20-PDF142:4.

[note: 80]SOC_[2A(3)].

[note: 81]PFClosingSubs_[5(9)].

[note: 82]Asirham at [12].

[note: 83]Asirham at [12].

[note: 84]PFClosingSubs_[6].

[note: 85]PFReplySubs_[16]-[17].

[note: 86]1AB_120; 1TRANS_PDF23:17-20, PDF26:1-5; 5TRANS_PDF165:6-9; DFClosingSubs_[13].

[note: 87]DFAEIC_Nancy_[23].

[note: 88]5TRANS_PDF165:6-PDF166:13.

[note: 89]5TRANS_PDF164:16-22, PDF166:2-8.

[note: 90]DFClosingSubs_[22]-[31].

[note: 91]2AB_5-6.

[note: 92]2AB_232.

[note: 93]2AB_5-6; PFAEIC_Tony_[42].

[note: 94]2AB_232; PFAEIC_Tony_[43].

[note: 95]PFClosingSubs_[43].

[note: 96]PFClosingSubs_[43].

[note: 97]PFClosingSubs_[41]-[42].

[note: 98]SOC_[2A(3)].

[note: 99]PFClosingSubs_[41].

[note: 100]PFClosingSubs_[32]-[35], [40]-[43].

[note: 101]DFClosingSubs_[48]-[58], [69]-[72].

[note: 102]1AB_30-31.

[note: 103]2AB_469, 471, 473, 475.

[note: 104]1AB_144.

[note: 105]1AB_128-129, 133-134

[note: 106]2TRANS_PDF70:8-12, PDF71:11-21.

[note: 107]2TRANS_PDF35:9-19, PDF36:20-PDF37:24.

[note: 108]SOC_[5]-[5A].

[note: 109]PFOpening_[18]; PFClosingSubs_[51]-[52].

[note: 110]PFOpening_[19(3)]; PFClosingSubs_[53]-[54].

[note: 111]PFAEIC_Tony_[69]-[72], [76]-[77]; PFAEIC_Darren_[29]-[32], [36]-[37].

[note: 112]DFClosingSubs_[10(c)], [99]-[149].

[note: 113]1AB_93.

[note: 114]1AB_96.

[note: 115]DFOpening_[12], 15-16; DFClosingSubs_[10(c)].

[note: 116]DFAEIC_George_[92].

[note: 117]DFAEIC_George_[37]; 1TRANS_PDF65:22-23, PDF117:1-3; 2TRANS_PDF32:22-25.

[note: 118]1AB_16.

[note: 119]1AB_21.

[note: 120]1AB_31.

[note: 121]PFClosingSubs_[32]; DFClosingSubs_[93].

[note: 122]2TRANS_PDF32:14-25; 1TRANS_PDF117:1-3.

[note: 123]PFClosingSubs_[66]; PFReplySubs_[64(a)]; 1AB_191; 6TRANS_PDF149:9-12, PDF162:13-15.

[note: 124]PFClosingSubs_[51].

[note: 125]DFClosingSubs_[99]-[129].

[note: 126]PFAEIC_Tony_[70]; 6TRANS_PDF69:1-4.

[note: 127]DFAEIC_George_[83], 246

[note: 128]PFClosingSubs_[55]-[58]; DFClosingSubs_[102]-[105].

[note: 129]6TRANS_PDF86:1-PDF87:11, PDF89:11-PDF92:22, PDF94:7-11, PDF115:20-25, PDF198:8-PDF199:18; DFAEIC_George_[84], 246; 9TRANS_PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 130]3TRANS_PDF81:16-PDF82:7; PFAEIC_Tony_[70].

[note: 131]3TRANS_PDF82:8-PDF83:12.

[note: 132]PFAEIC_Darren_[1]; 1TRANS_PDF73:13-19.

[note: 133]PFClosingSubs_[51(3)].

[note: 134]9TRANS_PDF17:20-PDF18:15, PDF23:21-25, PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 135]DFAEIC_George_[83]-[84], 246, 248.

[note: 136]DFAEIC_George_[83]-[84]; 1DBOD_36.

[note: 137]1DBOD_41.

[note: 138]DFAEIC_Nancy_[1].

[note: 139]9TRANS_PDF17:20-PDF18:15, PDF23:21-25, PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 140]1AB_93.

[note: 141]1TRANS_PDF112:15-18.

[note: 142]1TRANS_PDF87:9-17.

[note: 143]3TRANS_PDF71:7-16; 4TRANS_PDF5:10-PDF7:20.

[note: 144]1TRANS_PDF87:9-17.

[note: 145]1TRANS_PDF110:20-24, PDF112:5-18, PDF113:4-8; PFReplySubs_[6].

[note: 146]1TRANS_PDF114:6-9.

[note: 147]1TRANS_PDF104:17-PDF106:9; AEIC of Zheng Zubin (“DFAEIC_Zheng”)_[5]-[6].

[note: 148]DFAEIC_Zheng_[12].

[note: 149]8TRANS_PDF5:14-23.

[note: 150]8TRANS_PDF10:12-PDF11:14.

[note: 151]PFAEIC_Darren_[31]; 1TRANS_PDF92:6-11.

[note: 152]1TRANS_PDF93:17-PDF94:19, PDF95:4-12, PDF104:3-PDF105:13, PDF107:17-PDF108:15.

[note: 153]PFAEIC_Soh_[10]; 5TRANS_PDF13:4-12, PDF47:17-23.

[note: 154]3DBOD_18.

[note: 155]5TRANS_PDF12:12-19.

[note: 156]3DBOD_18.

[note: 157]5TRANS_PDF19:10-18.

[note: 158]PFClosingSubs_[51(6)].

[note: 159]1TRANS_PDF140:7-PDF141:12, PDF144:14-20, PDF154:24, PDF157:25-PDF158:4.

[note: 160]1TRANS_PDF140:22-141:12, PDF142:3-12, PDF158:5-24.

[note: 161]3TRANS_PDF114:14-20.

[note: 162]1TRANS_PDF182:3-10.

[note: 163]AEIC of Lim Xiao Wei Leroy (“DFAEIC_Leroy”)_6; 1TRANS_PDF143:5-24.

[note: 164]1AB_151-152.

[note: 165]1TRANS_PDF142:3-12, PDF144:21-PDF145:10.

[note: 166]PFAEIC_Darren_[27]-[28]; 1TRANS_PDF145:11-PDF148:16; AEIC of Ang Chin Teong (“DFAEIC_Ang”) _[16].

[note: 167]1TRANS_PDF147:9-16; DFAEIC_Leroy_[13], 26.

[note: 168]PFClosingSubs_[54(3)]; PFReplySubs_[67].

[note: 169]1TRANS_PDF142:3-12, PDF144:21-PDF145:10.

[note: 170]DFClosingSubs_[146].

[note: 171]1AB_151-152.

[note: 172]DFClosingSubs_[147]-[148].

[note: 173]9TRANS_PDF39:1-9, PDF40:15-24.

[note: 174]1AB_96.

[note: 175]2DBOD_6; 1TRANS_PDF152:13-PDF154:4. One of the DBs is labelled as DB-A on 2DBOD_6, while the other is near to the exit E2 on 2DBOD_3. See also PFAEIC_Soh_[11], 16; 5TRANS_PDF20:19-PDF21:12.

[note: 176]DFClosingSubs_[149].

[note: 177]PFClosingSubs_[54(4)].

[note: 178]PFClosingSubs_[62].

[note: 179]DFClosingSubs_[85]-[94].

[note: 180]DFClosingSubs_[74]-[76].

[note: 181]PFClosingSubs_[60]-[64]; PFReplySubs_[48].

[note: 182]PFClosingSubs_[70]; PFReplySubs_[54].

[note: 183]DFClosingSubs_[85]-[94]; Defendant’s Reply Submissions dated 23 August 2024 (“DFReplySubs”)_[37]-[49].

[note: 184]DFReplySubs_[9(a)].

[note: 185]3TRANS_PDF39:22-PDF51:2.

[note: 186]3TRANS_PDF8:11-PDF9:15, PDF11:22-PDF12:21, PDF20:17-PDF21:19, PDF40:1-5; 6TRANS_PDF169:20-PDF170:24.

[note: 187]3TRANS_PDF44:15-22, PDF46:10-PDF47:7; PFAEIC_Soh_[5]; 4TRANS_PDF77:13-PDF80:23.

[note: 188]3TRANS_PDF39:22-PDF51:2; 4TRANS_PDF71:17-PDF72:23, PDF74:6-11.

[note: 189]DFReplySubs_[9(a)].

[note: 190]PFReplySubs_[53].

[note: 191]1AB_161-175; 3DBOD_3-17.

[note: 192]4TRANS_PDF80:15-23.

[note: 193]DFClosingSubs_[84].

[note: 194]PFClosingSubs_[64].

[note: 195]DFReplySubs_[30].

[note: 196]PFAEIC_Darren_[39]; 1AB_109.

[note: 197]5TRANS_PDF31:13-PDF34:8.

[note: 198]PFReplySubs_[69].

"},{"tags":["Criminal Law – Offences – Using criminal force knowing it to be likely to outrage modesty","Criminal Procedure and Sentencing – Sentencing – Whether custodial threshold crossed"],"date":"2024-11-07","court":"Magistrate's Court","case-number":"Magistrate's Arrest Case No MAC-900854-2023, Magistrate's Appeal No 9180-2024-01","title":"Public Prosecutor v Koh Chee Leong @ Tan Chee Leong","citation":"[2024] SGMC 77","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32441-SSP.xml","counsel":["Kiera Yu (Attorney-General's Chambers) for the Public Prosecutor","Ryan David Lim (Public Defender's Office) for the Defendant."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Kessler Soh","html":"Public Prosecutor v Koh Chee Leong @ Tan Chee Leong

Public Prosecutor v Koh Chee Leong @ Tan Chee Leong
[2024] SGMC 77

Case Number:Magistrate's Arrest Case No MAC-900854-2023, Magistrate's Appeal No 9180-2024-01
Decision Date:07 November 2024
Tribunal/Court:Magistrate's Court
Coram: Kessler Soh
Counsel Name(s): Kiera Yu (Attorney-General's Chambers) for the Public Prosecutor; Ryan David Lim (Public Defender's Office) for the Defendant.
Parties: Public Prosecutor — Koh Chee Leong @ Tan Chee Leong

Criminal Law – Offences – Using criminal force knowing it to be likely to outrage modesty

Criminal Procedure and Sentencing – Sentencing – Whether custodial threshold crossed

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9180/2024/01.]

7 November 2024

District Judge Kessler Soh:

Introduction

1       Mr Koh Chee Leong @ Tan Chee Leong is 66 years of age.

2       On 31 October 2022, around noon, he boarded an ascending escalator (the “Escalator”) leading out of the Raffles Place MRT Station (the “MRT Station”). He boarded on the left side. There were people standing ahead of him. He moved to the right and walked up the Escalator on the right side. He arrived behind a 37-year-old woman (the “Victim”) who was standing on the right side. The Victim felt her right buttock being touched by from behind. It was a quick touch with the fingers of a hand. Stunned and shocked, she turned around to confront the person behind her. It was the defendant. He denied touching her, saying that his left arm had bumped into her accidentally. But his act of touching her with his fingers was witnessed by another person (an independent witness) who was standing on the defendant’s left when the incident occurred.

3       The defendant was charged with outraging the modesty of the Victim, an offence under s 354(1) of the Penal Code 1871 (2020 Rev Ed) (“Penal Code 1871”). He disputed the charge. His defence was that he was moving up the Escalator quickly and did not notice the Victim. He noticed her only just before he collided into her. His left lower arm made physical contact with her right buttock accidentally and he did not touch her intentionally. I did not find his account to be credible. It was contradicted by the clear and credible testimony of the Victim, who was corroborated by the independent witness. On 15 July 2024, I found the defendant guilty and convicted him on the charge.

4       The Prosecution sought a sentence of six to eight weeks’ imprisonment, on the basis that the offence occurred within the space of a public transport network. The Defence disagreed and submitted for a fine of $2,000 and not more than $3,000. I accepted the submission of the Defence. On 19 September 2024, the defendant was sentenced to a fine of $2,500.

5       The defendant filed the present appeal against his conviction the same day. The payment of the fine was stayed and he is on bail pending the appeal. (No appeal has been filed against the sentence.)

6       These grounds of decision set out my reasons for finding the defendant guilty of the charge and briefly explain my reasons for imposing a fine rather than a custodial sentence.

Trial

Charge

7       The charge against the defendant was as follows:

MAC-900854-2023

You […] are charged that you, on 31 October 2022, at about 12.10 p.m., on the escalator at Exit A of Raffles Place MRT Station, 5 Raffles Place, Singapore 048618, did use criminal force to [the Victim, a 37-year-old woman], to wit, by touching her right buttock over her clothes, knowing it to be likely[note: 1] that you will thereby outrage her modesty, and you have thereby committed an offence punishable under section 354(1) of the Penal Code 1871.

Prosecution’s case

Evidence of Victim

8       The gist of the testimony of the Victim, a 37-year-old woman (PW1), was as follows:[note: 2]

(a)     On 31 October 2022 (sometime before 12.10 pm), she alighted from a train at Raffles Place MRT Station with her husband and two children.

(b)     They subsequently took the ascending Escalator at Exit A of the MRT Station. She boarded the Escalator and stood on the right side while her six-year-old daughter stood on the left side next to her. (Her husband was a few steps higher in front of her with a stroller and their three-year-old daughter.)

(c)     On the way up, somewhere at the middle of the Escalator, she felt a “five finger points” touch on her right buttock from behind her. It was “touch and go”, from the bottom up. She was “stunned and shocked” and immediately turned around to see who had touched her. She saw the defendant standing directly behind her, one step below her on the Escalator. She asked him why he touched her buttock. He denied touching her. He said that he had bumped into her accidentally and that it was his left lower arm that made contact. [note: 3]

(d)     She then turned to the person standing next to the defendant, on the left side of the Escalator, and asked the person whether he saw the defendant touch her. The person (subsequently ascertained to be “Mr Naim”, PW3) affirmed that he saw the defendant touch her.[note: 4]

(e)     They all alighted at the top of the Escalator. The Victim continued to confront the defendant, and he continued to deny touching her. The Victim then asked Mr Naim again whether he had seen the defendant molest her. Mr Naim affirmed that he did and asked the defendant why he had to stand so close to the Victim. The Victim also told her husband about the incident. She showed her husband how she was touched by holding her left hand in a bowl shape with her five fingers and her palm facing upwards and touching her husband’s right buttock with her five fingers.[note: 5]

(f)     Subsequently, she reported the matter to staff at the MRT Station and the police were notified.

9       (A police report was subsequently filed stating that “female pax reported being touch”.[note: 6] The defendant was arrested at about 1.32 pm for an offence of outrage of modesty.[note: 7])

Corroboration by independent witness

10     The Victim’s account of the incident on the Escalator was corroborated by Mr Naim (Mr Naim Khan bin Alih, PW3).

11     The Prosecution initially had difficulty locating Mr Naim to arrange for him to testify. Mr Naim was a Malaysian and had returned to Malaysia. Efforts by the police to contact him had been unsuccessful.

(a)     The Prosecution applied, under s 32(1)(j)(ii) of the Evidence Act 1893, to admit in evidence Mr Naim’s statement to the police, on the basis that despite reasonable efforts to locate him he could not be found. The defence objected to the application.[note: 8] An ancillary hearing was conducted to determine if Mr Naim’s statement should be admitted in evidence. At the ancillary hearing, the investigation officer Thian Si Min (“IO”, PW2) testified about the extensive efforts undertaken by her (from 22 August 2023) to try to contact Mr Naim to attend the trial as a witness (in November 2023), without success.[note: 9] After the IO’s testimony, the ancillary hearing was adjourned (on 23 November 2023) for parties to tender written submissions. The matter was fixed for a pre-trial conference (“PTC”) for further hearing dates to be taken.

(b)     Further hearing dates were given on 11, 12 and 24 April 2024. At a PTC on 8 April 2024, a few days before the further hearing, the Prosecution informed that they had managed to contact Mr Naim and he was able to attend the hearing on 24 April 2024.

(c)     The trial resumed on 24 April 2024 (with the hearing dates on 11 and 12 April 2024 vacated). Given that Mr Naim would be coming to court to give his evidence, the Prosecution withdrew their application to admit Mr Naim’s statement to the police, and the ancillary hearing was discontinued.

12     The gist of Mr Naim’s testimony was as follows:[note: 10]

(a)     On 31 October 2022, he was on his way to work (at Burger King, Marina Bay Link). His work started at 12.00 pm, and he was late for work.[note: 11]

(b)     He boarded the Escalator at the MRT Station and stood on the left side. This was one step below the Victim who was on the right side.[note: 12]

(c)     He saw “an uncle” (whom he identified as the defendant and described as the “molester”) going up the Escalator and standing “exactly behind” the Victim, on the step “right behind” her, on the right side of the Escalator. The defendant stood behind the Victim as there was nowhere else to go.[note: 13]

(d)     He saw the defendant reaching out for the Victim’s right buttock with his left hand. The defendant’s palm was open and he used his fingers to touch her. Mr Naim was “shocked” when he saw this. (In cross-examination, Mr Naim demonstrated the action by stretching out his left arm with his palm facing upwards and five fingers outstretched.)[note: 14]

(e)     The Victim appeared “angry, trauma, shocked” following the touch. She asked the man repeatedly why he touched her; he denied it, saying that he did not. The man said that he bumped into her accidentally and that his left lower arm had bumped into her. [note: 15]

(f)     The Victim then asked him (Mr Naim) whether he saw what the defendant did, and he told her that he saw.[note: 16]

(g)     Mr Naim was shown CCTV footage of the top of the Escalator (referred to below, at [15]). He testified that the Victim asked him to reconfirm what he saw, and he confirmed that he saw the defendant touch her. The Victim also explained to her husband what had happened and was “recreating the event” (as shown in the CCTV footage, below at [15(d)]). (Mr Naim said this was “exactly the same” as how he had observed the defendant touching the Victim.)[note: 17]

(h)     As Mr Naim was about to leave to go to work, the Victim asked him for his contact details and they exchanged phone numbers.[note: 18]

CCTV footage

13     Two CCTV footages of the Escalator were tendered in evidence.[note: 19]

14     One CCTV footage (labelled “MRT Bottom”) was 20 seconds long and showed the view from the bottom of the Escalator. It showed the following, among other things:

(a)     The Victim boarded the Escalator and stood on the right side, with her six-year-old daughter on her left (at about 0:04);

(b)     Mr Naim boarded the Escalator on the left side (at about 0:06);

(c)     The defendant boarded the Escalator on the left side (at about 0:13) and shortly after moved to the right side and walked up the Escalator (at about 0:16 – 0:20).

15     The second CCTV footage (labelled “MRT Top”) was 55 seconds long and showed the view from the top of the Escalator. It showed the following, among other things:

(a)     The Victim’s husband pushing a pram with their three-year-old daughter and leaving the Escalator, with their six-year-old daughter beside him (at about 0:11);

(b)     The Victim stepped off the Escalator on the left side, with her body turned to speak to the defendant and Mr Naim who were one step behind her (at about 0:15 – 0:17);

(c)     The Victim continued to confront the defendant at the top of the Escalator, with her husband and Mr Naim looking on (at about 0:17 – 0:37);

(d)     The Victim showed her husband how the defendant had touched her, by touching her husband’s right buttock with the five fingers of her left hand (at about 0:38 – 0:40);

(e)     The Victim spoke to Mr Naim as he was about to leave (at about 0:48 – 0:55).

16     There was no CCTV footage of the middle segment of the Escalator. Based on the estimations of the Defence, which was put in cross-examination to the IO, this “blind spot” between the CCTV footages of MRT Bottom and MRT Top was about eight seconds, and what transpired between the parties during that time could not be seen.[note: 20]

Defence

17     The case for the Defence was that the physical contact between the defendant and the Victim was an accidental one between his left lower arm and her right buttock.[note: 21] He was moving up the Escalator quickly and only noticed the Victim right before he collided into her. [note: 22] The collision was inadvertent and he did not touch her intentionally.

Evidence of Defendant

18     The gist of the Defendant’s testimony was as follows:[note: 23]

(a)     On that day, he took a train to the Raffles Place MRT Station. He exited the fare gate and withdrew $3,000 from an ATM at the MRT Station. He intended to go to the Arcade to change the money into Thai Baht for an upcoming trip to Thailand.

(b)     He boarded the Escalator to exit the MRT Station. He was initially on the left side. After boarding the Escalator, he decided to quicken up his steps as he was overwhelmed with the exchange rate and excited about the trip. He moved to the right side of the Escalator and began proceeding up the Escalator. At that time, he was carrying a sling bag on his right side, with the bag hung from right shoulder and both his hands grasping the strap of his sling bag.[note: 24]

(c)     As he was climbing up the steps, he was looking at the steps in front of him. He did not notice there was a woman in front, and he “bumped” into her. He bumped into her buttocks with his “lower left arm” (near his elbow).[note: 25]

(d)     The woman turned around and in a loud, aggressive tone asked why he had touched her backside. He denied touching her, as he had accidentally bumped into her. She moved to the left side and kept accusing him, and turned to Mr Naim and said, “You saw him touch me, right?” as if pressuring Mr Naim to say “Yes”.[note: 26]

(e)     (The defendant also testified about what happened subsequently, how the woman continued to accuse him, and how he maintained that he did not touch her.)

Issue

19     The issue to be determined was one of credibility: whether the evidence of the Victim and the independent witness (Mr Naim) was credible and proved the Prosecution’s case, or whether reasonable doubt had been raised from the defendant’s account of the incident.

Findings and Verdict

Victim was a credible witness

20     I found the Victim to be a truthful witness and her evidence was credible. Her evidence was that while she was on the Escalator she felt a quick and light touch on her right buttock. She could feel that the touch involved the five fingers of a hand and that it was not accidental. She was shocked and outraged, and turned around to confront the person behind her, who was the defendant.

21     The Defence suggested that she could have been mistaken as she did not actually see the touch. I accepted her evidence, however, that she could tell that it was a “five finger points” touch and that an accidental bump from an arm, as claimed by the defendant, would have felt very different.[note: 27]

Corroborated by independent witness

22     The Victim’s evidence was corroborated by Mr Naim, an independent witness. Mr Naim saw, right in front of him, the defendant touching the right buttock of the Victim with his left hand; and Mr Naim was shocked by what he saw.

23     The Defence sought to discredit the evidence of Mr Naim by suggesting, among other things, that his evidence was cavalier with a tendency to exaggerate, and that he viewed his role as helping the Victim to “get justice” such that it influenced the answers he gave to the Court.[note: 28] I did not accept the Defence’s characterisation of Mr Naim’s evidence. As was pointed out by the Prosecution, Mr Naim had been largely unwilling to testify, and extensive efforts had to be taken by the IO to locate him (as explained above, at [11]) and to persuade him to give his evidence in court. Mr Naim had left his business in Malacca, Malaysia, and travelled to Singapore to testify; he “didn’t want to come” but did so out of a sense of justice; and he rejected the Defence’s suggestion that his answers were influenced by his desire to help the Victim:

Q    I suggest to you that you are letting your desire to help, yes, you are letting your desire to help influence your answers to the Court today.

A    My desire influence---no, no. To be […]very honest, […] Your Honour, I left my business, my small business […] that needs me […] at Malaysia […] for justice. And to be honest, […] I didn’t want to come. And then, my mum told me […] what happened because I was so stressed. I said I don’t want to come. Maybe I can give, what is it called, […] a video testament. And […] my mum asked me […] what is this all about? I said, […] I am the witness of […] molesting happen. And […] she told me that, what if that is happen to your sister, and I said, you know what, say no more, […] I’m leaving now. I mean, like, I’m going. So, my desire helping is not influenced this at all. This guy across of me probably has […] the same age of my father. So, it will be inhumane of me to accuse him […] for the things that he didn’t do unless I 100% sure that he did that. So, yah. [note: 29]

24     I found Mr Naim to be a truthful witness. He did not know either the Victim or the defendant, and there was no reason for him to exaggerate or give false evidence to implicate the defendant. His evidence of what he saw was credible, as it happened right in front of him, and he could not have been mistaken about what he saw.

Discrepancies were minor and not material

25     There was an apparent discrepancy between the evidence of the Victim and of Mr Naim as to which side of the Escalator the Victim was standing on when she was touched.

(a)     The Victim said that she was standing on the right side of the Escalator when she felt the touch.[note: 30]

(b)     Mr Naim said that the Victim stood on the right side of the Escalator, one step in front of him, and that she had moved to the left side before the touch occurred; he could not be sure how far to the left she had moved before the touch occurred and his guess was that it was one step.[note: 31]

26     There was thus an inconsistency between the testimony of the Victim and Mr Naim. In my assessment, however, it was a minor inconsistency attributable to an imperfect recollection of events and not a material discrepancy. It did not diminish the overall credibility of the Victim’s account or the corroborative effect of Mr Naim’s testimony. Whether the Victim was standing fully at the right side of the Escalator or one step to the left, it was physically possible for the touch to have happened, and it was a touch that the Victim felt and Mr Naim saw right in front of him.

Defence did not raise reasonable doubt

27     The defendant denied outraging the Victim’s modesty. He did not deny that a touch occurred, but the gist of his defence was that in his rush to go up the Escalator, he may have accidentally bumped into her buttock with his left elbow.

28     His evidence, however, was contradicted by the Victim who was certain that she was touched with five fingers of a hand, and that a bump from an elbow would have felt different. Her evidence was clear, coherent and credible, and corroborated by the independent testimony of Mr Naim. Conversely, I did not find the account given by the defendant to be credible.

29     The CCTV footage showed the defendant walking up the Escalator (above, at [14(c)]). He was not dashing up the Escalator or proceeding at such a speed that he could not stop himself. He could not have failed to notice the Victim standing on the right side, and he would have had enough time to stop behind her without bumping into her. In short, his defence that he was moving at such a speed up the Escalator that he could not stop himself from bumping into the Victim was simply not credible.

30     Moreover, it was clear from the evidence of the Victim and Mr Naim that the defendant’s touching of the Victim could not have been accidental. Both the Victim and Mr Naim gave a consistent description and demonstration of the defendant touching the Victim’s right buttock with the fingers of his left hand, with the fingers and palm facing upwards. That would not have been a natural position for the defendant’s hand, and the irresistible inference must be that he had touched her deliberately rather than accidentally.

31     The Defence sought to argue that it was “physically improbable” or “impossible” for the defendant to touch the Victim’s right buttock with his left hand if she was standing on the right side of the Escalator.[note: 32] I did not see why such a touch was impossible or improbable.

(a)     If the Victim was standing on the right side of the Escalator and the defendant was one step below and directly behind her, his left hand if held across his abdomen would be directly behind her right buttock. (This could be seen in Figure 3 at p 10 of the Defence’s Closing Submissions.) It would have been physically possible for him to position his hand with his palm upwards and quickly reach out to touch the Victim’s right buttock. Even if the Victim had taken one step to the left (according to Mr Naim), such a touch would also have been possible.

(b)     Indeed, the case for the Defence was that the defendant’s lower left arm had bumped into the Victim’s right buttock. If such contact was possible with the lower left arm, surely such contact would have been even easier with the left hand.

(c)     Crucially, based on the credible testimony of the Victim and Mr Naim, the defendant using the fingers of his left hand to touch the Victim’s right buttock while standing behind her did in fact happen.

Verdict

32     In short, I found that the Defence had not raised any reasonable doubt to the credible testimony given by the Victim and corroborated by Mr Naim. Neither the Victim nor Mr Naim had any reason to lie and falsely accuse the defendant. From their credible testimony, I found that the defendant did touch the Victim’s right buttock (over her clothes) with the fingers of his left hand. The touch was intentional, not inadvertent. And, in doing so, he knew it was likely that it would outrage her modesty. Accordingly, I found that the Prosecution had proven the charge against the defendant beyond a reasonable doubt, and he was found guilty and convicted on the charge.

Sentencing

33     I now explain briefly the sentence imposed.

34     The sentencing framework for offences under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) was laid down by the High Court in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”). The High Court adopted a “two-step sentencing bands” approach (at [45]-[49]).

(a)     At the first step, the court considers the offence-specific factors to ascertain the gravity of the offence. The offence-specific factors include the degree of sexual exploitation, the circumstances of the offence and the harm caused to the victim. The court then places the offence within one of three bands of imprisonment according to the gravity of the offence.

(b)     At the second step, the court considers the offender-specific factors, which are the aggravating and mitigating factors that relate to the offender generally but which are not offence-specific. The court then calibrates the appropriate sentence for that offender.

35     Both the Prosecution and the Defence agreed that the present offence fell within Band 1 of the Kunasekaran framework.[note: 33] I agreed, considering that the degree of sexual exploitation was low, the touch was fleeting with no skin-to-skin contact and, while the Victim was outraged by the offence, there was no evidence of serious harm.

36     Under Band 1, the indicative sentence would be “less than five months’ imprisonment”. Parties agreed that given that the maximum sentence for an offence under s 354(1) had been increased from two years (under the Penal Code (Cap 224, 2008 Rev Ed) when Kunasekaran was decided) to three years (under the Penal Code 1871 with effect from 1 March 2022), the indicative sentencing range for Band 1 should be increased proportionately. The sentencing range for Band 1 would thus be less than 7½ months’ imprisonment (which would include a fine).[note: 34]

37     The Prosecution submitted that the custodial threshold had been crossed in the present case and sought a sentence of six to eight weeks’ imprisonment. This was on the basis that the offence occurred within the space of a public transport network.

(a)     The Prosecution referred to the case of PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 (“Siow Kai Yuan Terence”).[note: 35] The offender in that case pleaded guilty to a charge of outraging a victim’s modesty by touching her buttocks over her shorts with his finger while ascending an escalator at an MRT station. (Two other offences, where the offender had earlier touched the victim’s right thigh twice on an MRT train, were taken into consideration for sentencing.) The prosecution sought a sentence of six weeks’ imprisonment; the District Court ordered that the offender be placed on probation. The prosecution appealed. The High Court accepted that the custodial threshold had been crossed and imposed a sentence of two weeks’ imprisonment. It was held that the key offence-specific aggravating factor was the fact that the offences were committed on the public transport network (at [88]); and, given the need to deter the commission of such offences on the public transport network, the custodial threshold was crossed in that case (at [89]).

(b)     The Prosecution submitted that the custodial threshold would be crossed if an offence of outrage of modesty was committed in any stations and transit areas which formed the public transport system, such as train platforms and escalators leading out of the train stations. [note: 36]

38     While I accepted that the rationale in Siow Kai Yuan Terence should extend to areas which formed part of the public transport network, the present case could be distinguished from Siow Kai Yuan Terence. I accepted the submission of the Defence that the fact that the offence occurred on an escalator in an MRT station should not in itself be an aggravating factor such as to cross the custodial threshold.[note: 37] The offence in the present case occurred on an escalator leading out of the MRT station, in an area beyond the fare gates to which non-commuters of the public transport network also had access. It was, to that extent, no different from an escalator in a shopping mall or an office building. In Siow Kai Yuan Terence, on the other hand, the offence occurred after the offender and the victim had alighted from an MRT train and the offender was following the victim up an ascending escalator before they had exited the control station: the offence had thus occurred in an area that was clearly an integral part of the public transport network.

39     Furthermore, the offending behaviour in Siow Kai Yuan Terence was somewhat more egregious than in the present case. There, the offender, having earlier touched the victim’s right thigh twice on the MRT train, followed her when she alighted from the train and touched her buttocks as they were ascending an escalator. In the present case, the defendant had not met the Victim before, and his encounter with her on the Escalator was unpremeditated and unplanned.

40     Considering the facts of the present case, I accepted the submission of the Defence that the custodial threshold had not been crossed. A fine would suffice if the act of molest was a “relatively minor one”: PP v Chow Yee Sze [2011] 1 SLR 481 at [12] (which was referred to in Kunasekaran at [62]). The following were some examples where the offenders were fined (after appealing to the High Court):

(a)     In Ng Chiew Kiat v PP [1993] 3 SLR(R) 927, an employer was fined $4,000 for grabbing his foreign domestic worker’s buttock.

(b)     In Teo Keng Pong v PP [1996] 2 SLR(R) 890 (“Teo Keng Pong”), a tuition teacher was fined $500 on each of four charges for caressing a 13-year-old student’s thigh and a fifth charge of caressing her thigh and squeezing her back.

(c)     In Soh Yang Tick v PP [1998] 1 SLR(R) 209, an employer was fined $2,000 for slapping his secretary’s buttock lightly on the spur of the moment.

(In all these cases, the offenders had no antecedents and were convicted after a trial, as in the present case.)

41     I accepted the submission of the Defence that the present case concerned a “relatively minor” act of molest where a fine would suffice. It was a fleeting touch, over clothing with no skin-to-skin contact, and not at the private parts. The defendant had a prior clean record and the offence was out of character. The offence was less aggravated than in the three precedents above: the defendant was not in a position of authority (unlike the offenders in the three precedents) and there was no vulnerable victim (unlike in Teo Keng Pong).[note: 38]

42     As to the amount of fine, the defence submitted that a fine of around $2,000 and in any event not more than $3,000 would be sufficient.[note: 39] Two (more recent) precedents were cited by the Defence:

(a)     In Ng Kum Weng v PP [2021] SGHC 100 (“Ng Kum Weng”), the offender was convicted after a trial on four charges, three of which were for outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). The offender was a patron at a music lounge and the victims were waitresses. One charge involved the offender sliding his hand on a victim’s right thigh, skin-on-skin. The offender was sentenced to a fine of $3,000 for that offence, which was upheld on appeal.

(b)     In PP v Balakrishnan s/o Kuppusamy [2016] SGDC 76 (“Balakrishnan”), the offender was convicted after a trial on two charges of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). The victim was a senior care associate or nursing aide who was employed by the offender and his family to take care of their ailing and elderly mother. The offender had tapped the victim on the buttocks in his home. He was fined $5,000. In imposing a fine “on the higher end of the range”, the court noted (at [71] of the Grounds of Decision) that this was not the first instance that the offender had violated the victim’s modesty.

The Defence submitted that both these cases were significantly more aggravated than the present case, and that the fine for the present case should be significantly lower.

43     In deciding on the fine to be imposed, I accepted the submission of the Defence that the facts of the present case were far less aggravated than in Ng Kum Weng and Balakrishnan. Conversely, I also considered that the prescribed maximum imprisonment term for offences under s 354(1) had been enhanced from two years (when the precedents were decided) to three years, which applied to the present offence (as mentioned above, at [36]). All in, I considered that a fine slightly lower than in Ng Kum Weng would be appropriate.

44     Accordingly, I imposed a fine of $2,500 (in default, one week’s imprisonment).

45     The payment of the fine has been stayed and the defendant is on bail pending the appeal.

[note: 1]At the trial, the charge before the court stated that the defendant touched the Victim “intending to” outrage her modesty: see the charge reproduced in the Defence’s Closing Submissions dated 28 June 2024 (the “Defence’s Closing Submissions”, marked DS1) at [6]. This was incorrect. It was later clarified by the Prosecution that the intended charge was that the defendant committed the act “knowing it to be likely” that it would outrage the Victim’s modesty: Prosecution’s Reply Submissions dated 5 July 2024 (“Prosecution’s Reply Submissions”, marked PS2) at [4]-[6]. This error was corrected and the charge amended before the verdict of the court was delivered. It did not result in any prejudice to the defendant given his line of defence that the touch was unintentional.

[note: 2]Transcript, 22 November 2023 (Day 1): 5:18–27:13 (p 5 line 18 – p 27 line 13).

[note: 3]Transcript, 22 November 2023 (Day 1): 10:21-27; 11:5-19; 12:11-18; 13:3-10; 15:13-21; 16:16-17; 46:3-23.

[note: 4]Transcript, 22 November 2023 (Day 1): 15:24–16:6; 16:16–17:16.

[note: 5]Transcript, 22 November 2023 (Day 1): 19:25-27; 20:3-22; 21:3-20.

[note: 6]First Information Report (Exh P1).

[note: 7]Police Report (NP299) (Exh P3).

[note: 8]Transcript, 23 November 2023 (Day 2): 5:14–14:3.

[note: 9]Transcript, 23 November 2023 (Day 2): 26:7–36:5.

[note: 10]Transcript, 24 April 2024 (Day 3): 12:27–25:32.

[note: 11]Transcript, 24 April 2024 (Day 3): 14:1-17.

[note: 12]Transcript, 24 April 2024 (Day 3): 16:13–22.

[note: 13]Transcript, 24 April 2024 (Day 3): 17:14-30; 18:14-32.

[note: 14]Transcript, 24 April 2024 (Day 3): 19:14-28; 20:16-20; 31:1-10.

[note: 15]Transcript, 24 April 2024 (Day 3): 20:21-29; 73:30–74:15.

[note: 16]Transcript, 24 April 2024 (Day 3): 21:6-13.

[note: 17]Transcript, 24 April 2024 (Day 3): 23:22–24:15.

[note: 18]Transcript, 24 April 2024 (Day 3): 24:18-29.

[note: 19]DVD+R marked Exh P2.

[note: 20]Transcript, 24 April 2024 (Day 3): 7:18-21; 8:4-9, 28-32; 9:1-9.

[note: 21]Defence’s Closing Submissions at [41].

[note: 22]Defence’s Reply Submissions dated 5 July 2024 (“Defence’s Reply Submissions”) at [10].

[note: 23]Transcript, 24 April 2024 (Day 3): 85:5–106:1.

[note: 24]Transcript, 24 April 2024 (Day 3): 85:5-24; 93:4–94:23; 96:1-23.

[note: 25]Transcript, 24 April 2024 (Day 3): 96:26-29; 97:8–98:7.

[note: 26]Transcript, 24 April 2024 (Day 3): 98:17–99:11.

[note: 27]Transcript, 22 November 2023 (Day 1): 27:5-13.

[note: 28]Defence’s Closing Submissions at [33].

[note: 29]Transcript, 24 April 2024 (Day 3): 10:14-19; 68:1-19.

[note: 30]Transcript, 22 November 2023 (Day 1): 12:21-29.

[note: 31]Transcript, 24 April 2024 (Day 3): 16:15-22; 33:25-30; 76:28-32; 78:5-9.

[note: 32]Defence’s Closing Submissions at [31].

[note: 33]Prosecution’s Sentencing Submissions dated 5 August 2024 (“Prosecution’s Sentencing Submissions”) at [10]; Mitigation Plea dated 6 August 2024 (“Mitigation Plea”) at [3].

[note: 34]Prosecution’s Sentencing Submissions at [6]; Mitigation Plea at [3].

[note: 35]Prosecution’s Further Sentencing Submissions dated 18 September 2024 (“Prosecution’s Further Sentencing Submissions”).

[note: 36]Prosecution’s Further Sentencing Submissions at [7]-[8].

[note: 37]Transcript, 13 August 2024 (Day 6): 4:1-30.

[note: 38]Mitigation Plea at [3]-[8].

[note: 39]Mitigation Plea at [8].

"},{"tags":["Agency – Appointment requirements – Whether contractual relationship between Claimant and Defendant established such that Claimant entitled to commission under terms of contract – Whether Claimant discharged requisite burden of proof to show it was effective cause of sale of Defendant’s property and entitled to commission on sale"],"date":"2024-10-28","court":"District Court","case-number":"Suit No 407 of 2023","title":"Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.","citation":"[2024] SGDC 280","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32439-SSP.xml","counsel":["Peter Ong Lip Cheng and Marcus Lim Wei Jie (Peter Ong Law Corporation) for the claimant","Mato Kotwani, Peter Doraisamy and Wong Min Hui (PDLegal LLC) for the defendant."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Sia Aik Kor","html":"Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.

Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.
[2024] SGDC 280

Case Number:Suit No 407 of 2023
Decision Date:28 October 2024
Tribunal/Court:District Court
Coram: Sia Aik Kor
Counsel Name(s): Peter Ong Lip Cheng and Marcus Lim Wei Jie (Peter Ong Law Corporation) for the claimant; Mato Kotwani, Peter Doraisamy and Wong Min Hui (PDLegal LLC) for the defendant.
Parties: Landplus Property Network Pte Ltd — Y.H.H Marine Engineering Pte. Ltd.

Agency – Appointment requirements – Whether contractual relationship between Claimant and Defendant established such that Claimant entitled to commission under terms of contract – Whether Claimant discharged requisite burden of proof to show it was effective cause of sale of Defendant’s property and entitled to commission on sale

28 October 2024

Judgment reserved.

District Judge Sia Aik Kor:

1       This is the Claimant’s claim for the amount of $166,246.00 being the agreed commission of 1.75% of $9.5 million for the sale of the Defendant’s property at 1 Kian Teck Crescent Singapore (“the Property”) which was ultimately completed through another estate agent.

Background

2       The Claimant is a company incorporated in Singapore and is in the business of real estate agency. The Defendant is a company incorporated in Singapore and is in the business of mechanical engineering.

The Claimant’s Case

3       The Claimant’s case is that Damien Choo (“Damien”), salesperson agent and an associate and representative of the Claimant, was engaged on or about 28 January 2019 by one Flora Teo (“Flora”) via WhatsApp to market the Property for sale. Flora is the personal assistant to the Managing Director of the Defendant, Yap Hoon Hong (“Mr. Yap”). Through a referral from another agent, Woo Su Fen Angeline (“Angeline”), Damien arranged for the viewing of the Property by CGW Construction & Engineering Pte Ltd (“CGW”) on 14 June 2021, 14 July 2021 and 20 September 2021. On 20 October 2021, there was an agreement between Flora and Damien via WhatsApp that the Defendant would pay a commission of 1.75% on the sale of the Property to CGW at the price of S$9.5 million.

4       However, the sale of the Property to CGW fell through on 8 November 2021 because the parties could not agree on the terms of the Option to Purchase (“OTP”). Unbeknownst to the Claimant at the material time, the Property was subsequently sold to CGW for the same price pursuant to an OTP dated 27 January 2022 and following completion of the sale, the Defendant paid the commission of $166,250 plus GST, being the commission of 1.75% of the purchase price of the Property at $9.5 million to the company of Tan Kok Kim Kelly (“Kelly”), another estate agent. The Claimant claims to be the effective cause of the transaction, which is denied by the Defendant.

The Defendant’s Case

5       The Defendant’s case is that there was no contractual relationship between Damien or the Claimant and the Defendant. Flora did not have the authority to make decisions on behalf of the Defendant and Damien was aware that (a) his commission could be discussed if he was able to secure a suitable buyer who was willing to purchase the Property at a suitable price and on terms which the Defendant could agree to; and (b) Mr Yap would only consider offers as genuine if the agent brought to him a draft OTP from the potential purchaser together with the 1% option fee. It is not disputed that CGW did not provide a cheque of the 1% option fee in October or November 2021. In the alternative, the Defendant contends that the Claimant was not engaged on an exclusive basis and the Defendant was at all material times at liberty to accept offers from other property agents.

Issues to be Determined

6       The following issues arise in this case:

(a)     Was the Claimant engaged by the Defendant and what were the terms of the engagement?

(b)     Is an effective cause clause implied into the contract between the parties?

(c)     Was the Claimant the effective cause of sale?

Issue (a): Was the Claimant engaged by the Defendant and what were the terms of the engagement?

7       It is well established that the relationship between an agent and his principal is a contractual one with any entitlement to commission being governed by the terms of that contract: Deans Property Pte Ltd v Land Estates Apartments Pte Ltd [1994] 3 SLR(R) 804 (“Deans Property”) at [17]. In the absence of an express contractual term governing the agent’s right to commission, the agent is only entitled to commission if his services were the effective cause of the transaction, this being an implied term of the agency contract: Deans Property at [17].

8       In the present case, there is no written contract between the Claimant and the Defendant. The question is therefore whether an agreement can nevertheless be implied from the conduct of the parties and what the terms of the agreement was. In this regard, I accepted that the appointment of agents can be a rather informal process. According to Angeline [note: 1], the seller merely gives the agent information on the property including the price that they want and the agent would contact the seller when the agent has a viewing. Frequently the terms of the engagement such as the percentage of commission will only be discussed when the agent brings a serious buyer. The standard market practice was to pay 1% to 2% for a sale and 1 month’s commission for a two-year lease.

9       In addition, the market practice in Singapore was that the seller, the Defendant in this case, would pay the commission of the agent, regardless of whether the agent is acting for the seller or the buyer[note: 2]. In the present case, there is no evidence that the Claimant was acting for the buyer, given that there was already an agent acting for CGW in October 2021 by the name of Edmund. In any event, I note that Flora had referred to Damien as “our agent” in her WhatsApp message on 27 September 2021[note: 3]. In addition, on 21 October 2021, when Damien messaged Flora about how the commission would be split, he had specifically referred to himself as the seller agent and Edmund as the buyer agent[note: 4], which Flora did not dispute.

10     I would state that I found Flora to be an unreliable witness on the stand. For reasons unknown, Flora would take a long time in thinking over and in answering the questions posed to her and kept asking for simple questions to be repeated. At various junctures, she provided no answer and was afraid to commit to an answer. Given that she is a degree holder who should have no difficulty in comprehending the questions put to her, her reticence was unexplained. Accordingly, I did not place much weight on her evidence. There was nevertheless sufficient contemporaneous evidence before me in the form of WhatsApp messages between Damien and her to indicate that the Defendant’s position was that the Defendant and Damien could discuss the commission payable if Damien was able to secure a suitable buyer who was willing to purchase the Property at a suitable price[note: 5] and that Damien had to bring a 1% option fee and an OTP acceptable to the seller. From the messages, these conditions of a 1% cheque and an acceptable OTP appeared to have been conveyed by Damien to another potential buyer besides CGW[note: 6].

11     Given the exchange of WhatsApp messages between Damien and Flora in September and October 2021[note: 7], in particular Damien’s WhatsApp message to Flora on 11 October 2021 that unless the buyer can agree with the OTP and offer a price with cheque, he would not disturb Mr Yap[note: 8], Damien was well aware of the Defendant’s position that he had to bring the 1% option fee and an OTP that is acceptable to the Defendant in order for the Defendant to consider the offer seriously. Damien was also aware that there were other agents marketing the Property and other property agents who approached the Defendant with potential buyers[note: 9].

12     During the trial, the Defendant tried to argue that Flora was not the authorised representative of the Defendant and that Mr Yap alone had the sole authority to make decisions on behalf of the Defendant. However, it was clear from the evidence that while Mr Yap would make the final decision as to whether to sell the Property, Flora was in fact authorised by Mr Yap to represent the Defendant to liaise with all the property agents in relation to the sale of the Property[note: 10]. It was clear from the WhatsApp messages between Flora and Damien that Flora had liaised with Damien within the scope of Mr Yap’s instructions and that if there were any matters which fell outside the scope of Mr Yap’s instructions, she had either said she would check with Mr Yap[note: 11] or had referred Damien to check directly with Mr Yap. This was clearly borne out by the WhatsApp messages where Flora had expressly informed Damien to check directly with Mr Yap regarding an offer from a potential purchaser[note: 12] and where she had replied to Damien that she could not issue an email from the Defendant rejecting the offer because Mr Yap did not give her instructions to do so[note: 13].

13     Based on a WhatsApp text from Flora on 20 October 2021[note: 14], the Defendant had proposed to Damien that the rate of commission be set at 1.75%. This appeared to have been sanctioned by Mr Yap given the following words used by Flora: “Damien, can u double confirm. Whether 1.75% is agreeable. Because i have already reported to my boss when u called me earlier: If ur side change, he will also change his mind.” On the stand, Mr Yap did not dispute that if Damien had successfully sold the Property, he would have been entitled to the commission[note: 15]. However this was subject to Damien bringing the 1% cheque and an OTP that was agreeable to both sides[note: 16]. Damien agreed to this on 21 October 2021 via WhatsApp after he had confirmed with his co-broke agents on the proposed allocation of the commission of 1.75% of the sale price of $9.5 million upon completion[note: 17].

14     There was therefore nothing in the evidence to suggest that Flora had gone beyond her mandate to discuss the 1.75% commission agreed on 21 October 2021. There was also a common understanding between Damien[note: 18] and Flora[note: 19] that the 1% cheque was pending before they would ask Mr Yap to sign the OTP. Given the course of dealings, Damien was entitled to rely on Flora’s messages as representing the Defendant’s position. There was therefore a common understanding between the Claimant and the Defendant by 21 October 2021 and, correspondingly an agreement between the Claimant and the Defendant, that subject to agreement between CGW and the Defendant on terms of the OTP and the production of a 1% cheque for the option fee, the Claimant and his co-broke agents would be paid a commission of 1.75% of the sale price of $9.5 million upon completion. However, the Defendant and CGW could not get past the disagreements on various clauses of the OTP and the cheque was never tendered by CGW. Consequently, the deal fell through on 8 November 2021.

15     Given that the events of 20 and 21 October 2021 had been the subject matter of the parties’ pleadings[note: 20], I do not think this was a case in which the Defendant had been caught unaware by what the Defendant claims to be a shift in the Claimant’s pleaded case. While estate agents are engaged in a rather informal manner, it was clear from the exchange of WhatsApp messages that by 21 October 2021, there was a meeting of minds between the parties as to the amount of commission payable on completion subject to the satisfaction of certain conditions. Correspondingly, I find that there was a contract of agency between the parties.

Isssue (b) – is an effective cause clause implied into the contract?

16     Subject to any special terms or indications in the contract of agency, where the remuneration of an agent is a commission on a transaction to be brought about, he is not entitled to such commission unless his services were the effective cause of the transaction being brought about: Bowstead & Reynolds on Agency (18th Ed, 2006) at para 7-027 cited in Colliers International (Singapore) Pte Ltd v Senkee Logistics Pte Ltd [2007] SGHC 18 (“Colliers”) at [70]. Accordingly, if the Claimant was not the effective cause of sale, the mere existence of a contractual agreement between the parties would not, in and of itself, confer to an agent an unreserved right to a commission in the event of any sale: Colliers at [71].

17     The main reason for implying an effective cause term is to minimize the risk of the principal having to pay double or multiple commissions. Accordingly, an effective cause term provides business efficacy in non-exclusive contracts of agency where multiple agents are engaged to secure a transaction: Turms Advisors APAC Pte Ltd v Steppe Gold Ltd [2024] SGHC 174 at [63] citing EMFC Loan Syndications LLP v The Resort Group plc [2021] EWCA Civ 844 at [72] and [78].

18     In the present case, it is undisputed that Damien was not engaged on an exclusive basis. In the Claimant’s written submissions, it had sought to argue that it would be entitled to the commission to be paid upon the completion of the sale upon securing a buyer at the Defendant’s asking price of $9.5 million and it was not necessary for the Claimant to follow through with the sale of the Property. I do not accept this argument given the evidence on the understanding between the parties. The evidence on the understanding between the parties indicate that the agent had to procure a cheque of 1% of the purchase price from the buyer and an OTP which the buyer was willing to execute and which terms were acceptable to the seller before the agent would be entitled to commission. As it was clear that Damien did not manage to procure the 1% cheque or get CGW to commit to an OTP which terms were acceptable to the Defendant, he did not manage to fulfil the terms upon which parties agreed that the commission would be payable.

19     I do not think that the parties’ understanding was that the agent would nevertheless be entitled to a commission even if he or she was not involved in procuring the 1% cheque or the execution of the OTP provided that there was subsequent completion with the buyer that the agent introduced. This would mean that mere introduction of the eventual buyer would have been sufficient to ground entitlement to the commission and that the agent need not be the effective cause of sale. The parties’ conduct, both before and after 21 October 2021, do not bear this out. Damien was well aware that he had to bring a 1% option fee and an acceptable OTP to the Defendant and had conveyed these conditions to potential buyers. Even after 21 October 2021, he followed up closely with the Defendant on the amendments to the OTP made by CGW. On the Defendant’s part, given that there were multiple agents marketing the Property, it had made clear that it would only seriously consider offers which were accompanied with a 1% cheque and OTP terms which were acceptable.

20     In the absence of further details in the correspondence between the parties as to the other circumstances in which the Claimant would nevertheless be entitled to a commission and given that the understanding between the parties was not inconsistent with the implication of the effective cause term, I think it would be appropriate to imply the effective cause term into the contract of agency between the parties. In fact, the risk of having to pay multiple commissions where there are multiple non-exclusive agents marketing the Property would supply the rationale for implying such a term.

Issue (c) – Was the Claimant the effective cause of the sale?

21     There is no precise definition of what “effective cause” means as the inquiry is fact-specific. The High Court in Grandhome Pte Ltd v Ng Kok Eng [1996] 1 SLR(R) 14 (“Grandhome”) offered some guidance as to what may constitute effective cause at [31]:

Where as in this case it is established that:

(a)    an owner agreed to pay an agent a commission for finding a buyer for a property;

(b)    the agent engendered the interest of a buyer in the property;

(c)    the buyer made an offer for the property which the agent conveyed to the owner;

(d)    the owner eventually sells the property to the same buyer at the same price offered through the agent; and

(e)    (b) and (d) take place within a short space of time;

the agent would have discharged the necessary burden of proof to establish a prima facie case for being the causa causans or effective cause of the sale. The owner can of course seek to show why despite all of this the agent is not the effective cause. But if he fails to do so the agent will succeed.

22     However, the Court of Appeal cautioned in Goh Lay Khim and others v Isabel Redrup Agency Pte Ltd and another appeal [2017] 1 SLR 546 (“Goh”) at [37] that the above-mentioned factors only serve as a rough-and-ready guide in assessing an estate agent’s contributions and that a steadfast adherence to the factors could in some cases lead to a wholly unjust outcome as Lai Siu Chiu J noted in Colliers at [76]. No one factor is determinative and the inquiry requires a holistic assessment of all the relevant facts of each case. To be an effective cause, the agent would have to show that it was “the critical cause”; it is insufficient for the agent to show that it was “one of the causes” of the sale.

How the deal fell through on 8 November 2021

23     On 8 October 2021, Damien forwarded Angeline a draft OTP and informed her that it was non-negotiable[note: 21]. Damien also informed Flora on the same day that he had forwarded the OTP last agreed with Mr. Yap to CGW and told them that the OTP was not negotiable[note: 22].

24     On 11 October 2021, Angeline messaged Damien to inform him that there were some amendments proposed to the OTP[note: 23] and sent the proposed handwritten amendments by CGW to him[note: 24]. The handwritten amendments included the following: (a) 5% deposit instead of 10%; (“Exercise Price Amendment”) (b) deletion of “Purchaser” from the Environmental Baseline Study (“EBS”) Clause at clause 9 (“EBS Amendment”); (c) that if the inability to obtain JTC’s approval is attributable to the Purchaser’s default, neither party shall have any further claim or demand against the other after forfeiture of the deposit (“Waiver Amendment”); and (d) that the Purchaser shall be entitled to rescind the agreement in the event of unsatisfactory replies in respect of below category 5 Road Line Plan[note: 25] (“Road Line Plan Amendment”) . On 12 October 2021, Damien asked Angeline to ask the buyer to make the proposed amendments in red in a word document for him to try to talk to Flora. However, he took the position that the deposit of 10% and the EBS clause should stay and could not be negotiated[note: 26].

25     On 12 October 2021, CGW proposed various amendments to the OTP, based on an offer price of $9.5 million, which, other than minor edits, comprise the following: (a) an amendment to Clause 11(a) such that if the inability to obtain JTC’s approval is attributable to the purchaser’s default, there shall be no further claims or demands against the other after forfeiture of the deposit paid i.e. the Waiver Amendment; and (b) an amendment to Clause 14(c) such that the agreement may be rescinded at the purchaser’s option if unsatisfactory plans or replies are received in respect of “below category 5 of the road Plan Line”[note: 27] i.e. the Road Line Plan Amendment.

26     As set out earlier, there was then an exchange of emails between Flora and Damien as to the commission payable. On 20 October 2021, Flora sent Damien a WhatsApp message to confirm that a commission of 1.75% of the sale price was agreeable for Damien and his co-broke agent[note: 28]. On 21 October 2021, Damien sent Flora a WhatsApp message that he has confirmed this with his co-broke agent and will proceed to wait for the 1% cheque[note: 29]. On 21 October 2021, Angeline forwarded Edmund’s contact to Damien for Damien to take over the matter[note: 30].

27     On 28 October 2021, Damien updated Flora that the co-broke agent was trying to talk to the buyer on 3 issues: (a) an exercise price of 4% instead of 9% i.e. the Exercise Price Amendment; (b) to delete “purchaser” in Clause 9 i.e. the EBS Amendment; and (c) a forfeiture of 1% in Clause 11(a) instead of the full deposit[note: 31] (“Forfeiture Amendment”) and that the “rest of the otp is ok”. Meanwhile, Damien informed Flora on 29 October 2021 that he will start to look for a new buyer again[note: 32].

28     On 1 November 2021, Damien forwarded to Flora a message from Edmund, CGW’s agent, informing Damien that CGW was insisting on their proposal and asking Damien to see if the seller would accept, failing which there would be no deal[note: 33]. Damien then commented to Flora that it looked like they need to find a new buyer again[note: 34]. On 8 November 2021, Damien forwarded to Flora a message informing Edmund that the seller has rejected the buyer’s offer[note: 35].

29     When Damien was cross-examined on this, he replied that he did not go back to Edmund, CGW’s agent, to try and negotiate some middle ground. This was because the seller told him that the OTP was non-negotiable[note: 36]. Damien also agreed that the Defendant had good reasons to not accept the amendments proposed by CGW[note: 37]. Damien was of the view that out of all the amendments proposed by CGW, only the Exercise Price Amendment, the EBS Amendment, the Forfeiture Amendment were outstanding as at 28 October 2021 and that CGW eventually only compromised on the EBS Amendment in the OTP dated 27 January 2022[note: 38]. He did not try to speak to Mr Yap on the Exercise Price Amendment and the Forfeiture Amendment because he was of the view that the amendments were not reasonable and as a seller’s agent, he had advised Flora accordingly[note: 39]. After Edmund informed him on 1 November 2021 that CGW insisted on the changes, he advised Flora that their demands were unreasonable and when Mr Yap agreed with him on 8 November 2021, the deal fell through[note: 40]. He did not attempt to negotiate the terms with Edmund, CGW’s agent as Edmund had told him that the terms were non-negotiable from CGW’s side[note: 41].

What happened after the deal fell through in November 2021

30     Damien was well aware that after the deal fell through in November 2021, the Defendant was also considering renting out the Property and were actively looking for tenants as well[note: 42]. He accepted that there was no evidence that the Defendant went straight to CGW and started negotiating with them[note: 43]. He conceded that the Defendant may have genuinely thought that CGW was no longer interested in the deal and proceeded to look at other options including other potential buyers or renting out the Property[note: 44].

How Kelly came to sell the Property

31     Kelly knew Mr Yap because the Defendant had previously bought industrial property through her in 2012[note: 45]. While she was given a 6-month exclusive agreement to market the Property in 2018, she was unable to procure any buyer and her exclusive agreement was not renewed when it lapsed after 6 months[note: 46]. Kelly was referred to CGW when Steven Lee, the vice-president of NatSteel Holding Pte Ltd sent her a WhatsApp message on 21 January 2022 asking her to assist their client to source for an industrial property. Steven Lee shared some of CGW’s requirements with Kelly, gave her the contact of CGW and asked her to contact CGW directly[note: 47]. Kelly proceeded to call Ms Gong, the director of CGW and the contact shared by Steven[note: 48]. She recommended three properties to CGW and CGW viewed all three properties on 26 January 2022[note: 49]. CGW shortlisted the Property and arranged for a second viewing the next day on 27 January 2022[note: 50].

32     On 26 January 2022, Kelly Tan Kok Kim (“Kelly”) informed Mr Yap that she had a potential buyer and informed the Defendant not to rent the Property[note: 51]. After the viewing on 27 January 2022, CGW decided to buy the Property and made an offer of $9.5 million[note: 52]. On 27 January 2022, Kelly sent a photograph of the cheque for the 1% option fee to Mr. Yap[note: 53]. Kelly had asked Mr Yap if he was comfortable using the OTP which he had previously used when he bought a property through Kelly[note: 54]. As he was, Kelly forwarded the OTP to CGW who proposed two amendments: (1) changing the exercise period from 2 weeks to 3 weeks and (2) changing the exercise fee from 10% to 5%[note: 55]. When Kelly asked them for the reasons for proposing the amendments, CGW explained that they require more time to exercise the option as Chinese New Year was approaching. As the sale process would take six to nine months, CGW found it meaningless to park 10% of the purchase price for such a long period. Kelly sent a photograph of the cheque for the 1% option fee to Mr Yap[note: 56] and explained these reasons to Mr Yap over the phone[note: 57]. In Kelly’s view, a three-week period of exercising the option was reasonable given that it was the Chinese New Year period and most of the lawyers’ offices might be closed[note: 58]. In addition, parking the 10% option fee with the stakeholder was meaningless and there was nothing for Mr Yap to gain or lose when the stakeholder amount was reduced from 10% to 5%[note: 59]. Mr Yap agreed with Kelly on the amendments[note: 60] and subsequently signed the OTP, a draft of which was forwarded to the Defendant on 27 January 2021[note: 61]. According to Kelly, CGW asked who would have to conduct the EBS and she told them that JTC would decide[note: 62]. In the executed OTP dated 27 January 2022[note: 63] which is in a different structure from the one Damien had used in October 2021, (a) the exercise price became 4% instead of 9%, (b) the EBS clause was drafted differently but references to the “Purchaser” remained; (c) the forfeiture amount became 1% instead of 10% but in the event of an inability to obtain JTC’s approval due to the Purchaser’s default, forfeiture of the 1% option money shall be without prejudice to any of the seller’s other rights and remedies; and (d) there is no reference to below Category 5 Road Line Plan in the “requisition” clause.

33     Under cross-examination, Kelly testified that she did not know that before she brought CGW to view the Property in January 2022, CGW had already viewed the Property with another agent on three occasions[note: 64]. She was also unaware that CGW had previously offered $9.5 million for the Property and had proposed amendments to a previous OTP[note: 65]. She agreed that as an ethical agent, she would have contacted Damien if she were aware that the Defendant had brought CGW to view the Property and if she had his contact[note: 66]. She also testified that CGW was initially not keen on a JTC property as there were many constraints. As such, she had spent 2 hours talking to CGW on the obligations which the buyer of a JTC property had to fulfil and explaining that they should be able to fulfil the requirements[note: 67]. Kelly also testified that initially CGW wanted the seller to bear the EBS cost. However, as the EBS clause stated that JTC would decide who should bear the EBS cost, CGW was comfortable with the clause and did not propose any amendments[note: 68].

34     According to Kelly, she negotiated the commission with Mr Yap after she had sent him a screenshot of the 1% cheque deposit and after he had agreed to the amendments proposed by CGW[note: 69]. While she asked for a 2% commission, Mr Yap did not agree and they ultimately settled at 1.75%[note: 70]. The commission of $166,250 (which is 1.75% of $9.5 million) plus GST amounting to $179,550 was ultimately paid to Kelly’s company[note: 71].

Short intervening period between initial interest and eventual sale

35     As Damien thought that the Exercise Price Amendment and the Forfeiture Amendment were not in the seller’s favour, he had advised the Defendant against accepting them[note: 72]. While Damien had told CGW that the OTP was non-negotiable[note: 73], Damien understood that this was not strictly the case as he nevertheless forwarded the amendments proposed by CGW to the Defendant. However, it was clear that he did not try to talk the Defendant round to accepting CGW’s amendments as he felt that the amendments were not reasonable[note: 74].

36     Given that CGW had not, in October or November 2021, provided the cheque of a 1% option fee[note: 75], the Defendant thought that CGW was not genuinely interested in purchasing the Property and rejected the amendments. The evidence reveals that Damien himself was not optimistic about the deal going through, as illustrated in his WhatsApp message dated 29 October 2021 to Flora about having to look for a new buyer. Edmund, CGW’s agent, had also taken a hard stance in not ceding any ground. The parties therefore came to an impasse and abandoned the deal.

37     In the two and a half intervening months, both parties explored other options. The Defendant considered other potential buyers or renting the Property while CGW sourced for other options, which was how they ended up being contacted by Kelly. As Kelly testified and as illustrated by the WhatApp message received by Kelly from Steven, CGW felt that there were many constraints in relation to buying a JTC property and were open to other types of properties such as freehold or URA property[note: 76]. It was also not disputed that CGW viewed two other properties with Kelly.

38     Given the evidence that both parties had moved on to consider other options after they abandoned the deal on 8 November 2021, I do not think that criteria (e) of the Grandhome test was necessarily determinative in the present case. The Claimant had argued that in respect of criteria (e) of the Grandhome test, guidance can be sought from Clause 6(b) of Form 5 Exclusive Estate Agency Agreement for the Sale of Residential Property which provides for the payment of commission if the property is sold within 3 months after the expiry date of the agreement to a buyer whom the estate agent had introduced to the seller during the validity of the agreement. As Damien was engaged on a non-exclusive basis and no written agreement was executed between the parties, I do not think the practice in respect of exclusive agents was applicable in the present case. In any event, as set out earlier, a strict application of the Grandhome test may lead to unfair results and the effective cause inquiry is necessarily a highly fact-sensitive one.

Subsequent Compromise by both the Defendant and CGW

39     In Damien’s view, the concessions made by CGW on the EBS clause which would entail a cost of $10,000 to $20,000 paled in comparison to the concessions made by the Defendant in reducing the exercise fee and the forfeiture amount (from almost $1 million to $95,000)[note: 77]. The EBS or Environmental Baseline Studies is a requirement imposed by JTC in the event of a sale. The purpose is to ensure that there is no contamination of the land before the transfer. From his experience, the requirement is usually imposed on the seller in the majority of cases given that the seller is the one who has been using the land[note: 78]. In Damien’s view, an exercise fee of 10% i.e. $950,000 was more favourable to the Defendant as the JTC approval will take 9 months to a year. The high forfeiture amount will stop the buyer from thinking about exiting the deal if they find another alternative property. It also compensates for the opportunity costs to the seller who would not be able to sell it to other buyers who subsequently offer a higher price. The seller would also need to incur EBS costs and engage lawyers. As such, Damien’s view was that the 1% forfeiture fee was not reasonable for the seller[note: 79]. He did not persuade Mr Yap to accept 5% instead of 10% for the exercise fee because he acted for Mr Yap’s best interest[note: 80]. As the seller’s agent, Damien felt that he had to protect the Defendant’s interest and advised them not to accept the changes as he thought that the changes were unreasonable.

40     I accepted that Damien’s advice on the Exercise Price Amendment and Forfeiture Amendment were well-intentioned but what is in issue here is not an assessment of whether the terms were objectively in the seller’s favour or whether Kelly fell short of Code 6 of the First Schedule (Code of Ethics and Professional Client Care) to the Estate Agents (Estate Agency Work) Regulations 2010, which was in any event not put to Kelly. What was in issue here was whether the buyer and seller could come to a set of terms which both could accept in proceeding to a transaction and whether it was the Claimant or Damien who brought that about.

41     In Damien’s view, he managed to negotiate the sale price of $9.5 million and Kelly would not have been able to bring the deal across the line if he had not narrowed down the area of dispute to just 3 clauses[note: 81]. Although the fact that the agent had introduced the person who became the ultimate purchaser is a factor and a strong factor at that to take into account in deciding if the agent was the effective cause of the sale, it need not by itself be conclusive: Emporium Holdings (Singapore) Pte Ltd v Knight Frank Cheong Hock Chye & Bailieu (Property Consultants) Pte Ltd [1994] SGCA 147 at [24]. The introduction of the ultimate purchaser by an agent to the seller is insufficient to establish that the agent was the effective cause of the sale: Deans Property at [22]. In the present case, while Damien was the one who had introduced CGW to the Defendant and obtained an oral offer of $9.5 million from CGW, he was unable to help parties to arrive at terms that both sides were agreeable to in respect of the OTP. On the stand, Mr Yap admitted that it had been previously communicated to Damien that the OTP was non-negotiable and that he had rejected the four amendments proposed by CGW[note: 82]. He did not inform Damien that he would have been willing to negotiate further because he felt that it was the job of a property agent to try to bridge the gap between the two parties[note: 83]. Based on the message sent by Edmund, CGW’s agent, to Damien on 1 November 2021[note: 84], it would appear that Edmund, CGW’s initial agent, was unable to talk CGW round and CGW insisted on their amendments. It is also clear in the evidence that Damien did not try to persuade Mr Yap to accept the amendments proposed by CGW, not so much because the terms were non-negotiable but because he felt that the proposed amendments were not in the Defendant’s favour[note: 85] and he felt duty-bound to act in the Defendant’s interest as their agent. As such, there was a gap between the parties’ positions on the clauses[note: 86] which neither Damien nor Edmund managed to bridge. Given CGW’s hard stance and Damien’s views on the clauses in October 2021, I do not think it can be said that the Defendant or Mr Yap frustrated the sale or placed a road block to the sale of the Property by Damien by deliberately refusing to negotiate the OTP with CGW.

42     Kelly, on the other hand, was able to find out the reason why CGW were so insistent on the proposed amendments and managed to persuade Mr Yap to see CGW’s perspective that they did not want the money to be tied up for a long period of time. She was also able to point out to Mr Yap that he did not stand to gain from the deposit remaining at 10% in the event the purchase was successful since the difference between the deposit and the option fee would be money held by the stakeholders. Kelly was able to communicate with both CGW and Mr Yap and managed to fulfil Mr Yap’s terms which Damien and his co-broke agents were unable to in October or November 2021: (1) produce a cheque of the 1% option fee from the buyer as a demonstration of its commitment; and (2) talk both parties round to a set of agreed terms and executing a legally binding OTP, which ultimately resulted in the successful completion of the sale of the Property.

43     In determining the effective cause of the sale, it was not a matter of weighing up who had conducted more viewings or the length of such viewings. Such efforts would amount to naught in the absence of a sale and were insufficient in and of themselves to ground an effective cause of sale. A successful transaction involves not just a suitable price but also a time at which the seller is willing to release his property and the buyer is willing to commit to the purchase as well as terms which meet the subjective needs of the parties. This requires a confluence which the agent must help bring about and for which the agent then becomes entitled to the commission.

44     The final set of agreed terms in the OTP involved concessions from both CGW and the Defendant. Both parties were therefore able to agree to a set of clauses, which they were initially at an impasse on as at 8 November 2021. CGW managed to get the exercise fee down from 9% to 4% and the forfeiture fee down to 1%. The Defendant, on the other hand, was happy with the EBS clause which states that JTC would determine the party which would have to bear the cost of the EBS. This was important to the Defendant as he felt that having to do the EBS was a troublesome affair, which necessitates the engagement of a third party. The EBS would take a long time and if the test fails, the Defendant would have to clean up[note: 87]. From a purely legal perspective, it may be said that the Defendant made significant concessions in executing the final version of the OTP but according to Mr Yap, he had been persuaded by Kelly to accept the reduction of the exercise fee from 9% to 4% as he would not be able to use the money in any event, given that this money would be held with his solicitors anyway[note: 88]. Before Kelly spoke with him, he did not think about whether he would get this money or it would be with his lawyer[note: 89]. He did not think that the probability of CGW choosing not to exercise the option or not going through with the purchase was high[note: 90]. In addition, Kelly had advised him that beside the forfeiture of the 1% option fee, they would nevertheless be able to take legal action[note: 91]. Given Mr Yap’s background as a businessman, these commercial and practical perspectives may be more persuasive than the technical legal implications of the proposed amendments. He had given reasonable explanations as to why the Defendant eventually came to accept the set of terms in the OTP that he signed. It was therefore not for the Court to judge what was objectively the best deal for the Defendant and whether or not Mr Yap should have changed his mind in accepting CGW’s proposed amendments. The only relevant inquiry before the Court was whether the Claimant was the effective cause of the sale for which the evidence indicates otherwise.

Distinct and Separate Negotiations

45     There was no evidence to indicate that the Defendant went straight to CGW after the deal fell through on 8 November 2021 to oust the Claimant from the deal or to deprive Damien and his co-broke agents out of their commission or to avoid paying any commission. On the contrary, there is evidence that CGW’s needs for an industrial property had been highlighted to Kelly by a referral from her former client[note: 92] which led to Kelly contacting CGW and subsequently bringing CGW to view the Property and two other properties. The Defendant had also paid Kelly 1.75% of the purchase price as commission. Based on the evidence, the negotiations which led to the eventual sale were distinct and separate from those conducted by Damien and his co-broke agent and were conducted by Kelly. This was not a case in which the chain of causation between the efforts of Damien and his co-broke agents and the eventual sale of the Property to CGW was unbroken.

No legal obligation on Defendant to get Kelly to co-broke with Damien

46     In Damien’s view, the Defendant should have asked Kelly to co-broke with him as he was the one who brought in the buyer, and obtained the price that the Defendant wanted. However, he conceded that there is no legal obligation for the Defendant to do so[note: 93]. As set out earlier, the introduction of the purchaser to the seller was an important but not determinative factor in whether an agent was an effective cause of the sale. However, there is no legal duty for a seller to ensure that an agent who had introduced a purchaser continued to be an effective cause of the sale. Where there were many non-exclusive agents marketing a property, an agent would have to be extremely proactive in seeing a transaction to completion and in earning the corresponding commission.

After-sale Events

47     In the Claimant’s written submissions, it was highlighted that the Defendant continued to string Damien along, even after the sale of the Property, when Flora lied to Damien about the property being leased out, not being for sale and that no more viewings were allowed. The Claimant argued that this showed that Flora was aware of the extensive marketing efforts expended by Damien and that Damien was in fact entitled to the commission as promised for securing CGW as a purchaser. I do not think this argument is meritorious. As set out earlier, the mere fact of marketing efforts was insufficient; they had to be the effective cause of a sale. In my view, Flora could simply have been trying to avoid an awkward position of having to explain to Damien how the Property came to be sold to CGW eventually. I would therefore not accord much weight to her actions after the sale of the Property in ascertaining whether the Claimant was indeed the effective cause of the sale.

Conclusion

48     In the circumstances, while Damien introduced CGW to the Defendant and managed to get CGW to make an oral offer of the eventual purchase price of $9.5 million, CGW walked away without offering a 1% cheque after an impasse on the OTP terms. It was the efforts of Kelly that revived CGW’s interest in the Property and spoke with both CGW and the Defendant to arrive at a set of mutually acceptable terms which eventually led to the sale. Accordingly, I find that the Claimant has failed to discharge the requisite burden of proof to show that it was the effective cause of the sale and I dismiss the claim.

49     The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

[note: 1]Notes of Evidence (“NE”), 18 June 2024, 45/10-19, 96/8 – 97/10

[note: 2]NE, 19 June 2024, 30/18 – 31/4

[note: 3]Damien’s Affidavit of Evidence-in-Chief (“AEIC”) at page 63 – Flora’s WhatsApp (“WA”) message at [27/9/21, 3:20:01 PM]

[note: 4]Damien’s AEIC at page 82 – Damien’s WA message at [21/10/21, 12:21:36 PM]

[note: 5]Flora’s AEIC at pages 45 & 46 - Flora’s WA messages to Damien dated 18 June 2021

[note: 6]Flora’s AEIC at pages 48 – 52 - Damien’s WA messages to Flora dated 20 September 2021 on another potential buyer’s forthcoming submission of a 1% cheque and their draft OTP

[note: 7]Damien’s AEIC at Tab A, pages 54 - 70

[note: 8]Damien’s AEIC at Tab A, page 70 – Damien’s WA message at [11/10/2021, 11:10:45 AM]

[note: 9]NE, 18 June 2024, 23/30-32 – 24/1-3

[note: 10]NE, 7 August 2024, 9/1-32

[note: 11]Damien’s AEIC at Tab A page 67 – Flora’s WA message at [1/10/21, 10:53:34 AM]

[note: 12]Damien’s AEIC at Tab A page 70 – Flora’s WA message at [6/10/21, 1:59:21 PM]

[note: 13]Damien’s AEIC at Tab A page 70 – Flora’s WA message at [6/10/21, 2:24:09 PM]

[note: 14]Damien’s AEIC at Tab A page 81 – Flora’s WA message at [21/10/21, 4:32:12 PM]

[note: 15]NE, 7 August 2024, 16/21-24, 17/15-26

[note: 16]NE, 7 August 2024, 32/2-12, 32/32 - 33/4

[note: 17]Damien’s AEIC at Tab A page 82 – Damien’s WA messages at [21/10/21, 12:21:36 PM] and [21/12/21, 12:21:49 PM]

[note: 18]Damien’s AEIC at page 82 – Damien’s WA message at [21/10/21, 12:22:15 PM] – “Will proceed and wait for the 1% cheque”

[note: 19]Damien’s AEIC at page 82 – Flora’s WA message at [21/10/21, 2:20:59 PM] – “U can provide evidence of 1% cheque first”

[note: 20]Statement of Claim and Defence at [10] – [13]

[note: 21]Angeline’s AEIC at [13] and page 15 – Damien’s WA message to Angeline at [8/10/21, 6:46 PM]

[note: 22]Damien’s AEIC at page 70 – Damien’s WA message to Flora at [8/10/21, 6:54:06 PM]

[note: 23]Damien’s AEIC at page 94 – Angeline’s WA message to Damien at [11/10/21, 4:27:59 PM]

[note: 24]Angeline’s AEIC at [14]

[note: 25]Angeline’s AEIC at Tab C pages 29-33

[note: 26]Damien’s AEIC at Tab B page 94 – Damien’s WA message to Angeline at [12/10/21, 1:23:59 AM]

[note: 27]Damien’s AEIC at page 72-76

[note: 28]Damien’s AEIC at page 81 – Flora’s WA message to Damien at [20/10/21, 4:23:12 PM]

[note: 29]Damien’s AEIC at page 82 – Damien’s WA message to Flora at [21/10/21, 12:21:49 PM] and at [21/10/21, 12:22:15 PM]

[note: 30]Damien’s AEIC at page 106 – Angeline’s WA message to Damien at [21/10/21, 12:46 PM]

[note: 31]Damien’s AEIC at page 82 – Damien’s WA message to Flora at [28/10/21, 2:48:24 PM] and at page 83 – Damien’s WA message to Flora at [29/10/21, 1:48:15 PM]

[note: 32]Damien’s AEIC at page 83 – Damien’s WA message to Flora at [29/10/21, 1:49:40 PM]

[note: 33]Damien’s AEIC at page 84 - picture forwarded by Damien to Flora at [1/11/21, 11:08:19 AM]

[note: 34]Damien’s AEIC at page 84 – Damien’s WA message to Flora at [1/11/21, 11:08:35 AM]

[note: 35]Damien’s AEIC at page 86 - picture forwarded by Damien to Flora at [8/11/21, 2:35:58 PM]

[note: 36]NE, 18 June 2024, 49/6-13

[note: 37]NE, 18 June 2024, 55/20 – 57/8, 57/15- 27, 57/28 – 58/25, 59/1-10, 59/18 - 60/5

[note: 38]NE, 18 June 2024, 68/29 – 71/6

[note: 39]NE, 18 June 2024, 71/8-27, 73/9- 74/5, 78/9 – 79/12

[note: 40]NE, 18 June 2024, 74/28 – 75/9

[note: 41]NE, 18 June 2024, 75/14-18

[note: 42]NE, 18 June 2024, 51/1-13

[note: 43]NE, 18 June 2024, 51/29 – 52/1

[note: 44]NE, 18 June 2024, 52/2-16

[note: 45]NE, 19 June 2024, 110/19-26

[note: 46]Yap’s AEIC dated 29 Dec 2023 at [27], NE, 19 June 2024, 114/28-31

[note: 47]NE, 19 June 2024, 119/18-31 and 2SBOD 4-8

[note: 48]NE, 19 June 2024, 120/8-15

[note: 49]NE, 19 June 2024, 112/12-15

[note: 50]NE, 19 June, 122/16-32

[note: 51]Yap’s AEIC at [49] and page 31

[note: 52]NE, 19 June 2024, 112/22-23

[note: 53]Yap’s AEIC at page 33

[note: 54]NE, 19 June 2024, 113/1-11

[note: 55]NE, 19 June 2024, 113/12-15

[note: 56]NE, 19 June 2024, 126/5-15

[note: 57]NE, 19 June 2024, 113/31 – 114/19

[note: 58]NE, 19 June 2024, 126/28 – 127/2

[note: 59]NE, 19 June 2024, 127/1-14

[note: 60]NE, 19 June 2024, 127/13-17

[note: 61]Yap’s AEIC at pages 38 - 44

[note: 62]NE, 19 June 2024, 128/20-24

[note: 63]SBOD 53-59

[note: 64]NE, 5 August 2024, 15/21-32

[note: 65]NE, 5 August 2024, 18/13 -19/23

[note: 66]NE, 5 August 2024, 17/12-26

[note: 67]NE, 5 August 2024, 21/10 – 22/6

[note: 68]NE, 5 August 2024, 27/31 – 28/7

[note: 69]NE, 19 June 2024, 129/31-130/2

[note: 70]NE, 19 June 2024, 130/4-6

[note: 71]NE, 19 June 2024, 130/23-31

[note: 72]NE, 18 June 2024, 71/8-27

[note: 73]Damien’s AEIC at page 70 – Damien’s WA message to Flora at [8/10/21, 6:54:06 PM]

[note: 74]NE, 18 June 2024, 73/27 - 74/13

[note: 75]Yap’s AEIC at [45], NE, 8 August 2024, 38/18-22

[note: 76]2SBOD 7

[note: 77]NE, 19 June 2024, 14/15-24

[note: 78]NE, 19 June 2024, 12/11-23

[note: 79]NE, 19 June 2024, 15/13 - 16/7

[note: 80]NE, 19 June 2024, 16/30-17/3

[note: 81]NE, 19 June 2024, 18/29-19/3

[note: 82]NE, 7 August 2024, 46/1-17, 48/13-25

[note: 83]NE, 7 August 2024, 50/14-22

[note: 84]Damien’s AEIC, Tab I at pages 133-134

[note: 85]NE, 18 June 2024, 73/9- 74/13

[note: 86]NE, 18 June 2024, 93/12-23

[note: 87]NE, 8 August 2024, 70/20-26

[note: 88]NE, 8 August 2024, 62/13-19

[note: 89]NE, 8 August 2024, 62/25-30

[note: 90]NE, 8 August 2024, 25/27-32, 26/25 - 27/2

[note: 91]NE, 8 Aug 2024, 26/6-12, 61/7-29

[note: 92]NE, 5 August 2024, 3/7-27

[note: 93]NE, 18 June 2024, 83/1-84/5

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for driving under disqualification set out in Fam Shey Yee v PP 2012 3 SLR 927 should be applied","Criminal Procedure and Sentencing – Sentencing – Whether sentencing framework for reckless or dangerous driving set out in Wu Zhi Yong v PP 2022 4 SLR 587 should be applied","Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for forgery for the purpose of cheating set out in Lim Ek Kian v PP 2003 SGHC 58 should be applied","Criminal Procedure and Sentencing – Sentencing – Principles – Whether section 458A of the Penal Code 1871 provides for mandatory caning for repeat offenders","Criminal Procedure and Sentencing – Sentencing – Date of commencement – Whether disqualification period to commence from date of release or date of conviction"],"date":"2024-09-02","court":"District Court","case-number":"District Arrest Case No 904840 of 2023 and 28 Others","title":"Public Prosecutor v Lim Choon Leong, Aaron","citation":"[2024] SGDC 219","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32058-SSP.xml","counsel":["Phoebe Tan (Attorney-General's Chambers) for the Public Prosecutor","Teo Choo Kee (CK Teo & Co.) for the Accused."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Public Prosecutor v Lim Choon Leong, Aaron

Public Prosecutor v Lim Choon Leong, Aaron
[2024] SGDC 219

Case Number:District Arrest Case No 904840 of 2023 and 28 Others
Decision Date:02 September 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Phoebe Tan (Attorney-General's Chambers) for the Public Prosecutor; Teo Choo Kee (CK Teo & Co.) for the Accused.
Parties: Public Prosecutor — Lim Choon Leong, Aaron

Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for driving under disqualification set out in Fam Shey Yee v PP 2012 3 SLR 927 should be applied

Criminal Procedure and Sentencing – Sentencing – Whether sentencing framework for reckless or dangerous driving set out in Wu Zhi Yong v PP 2022 4 SLR 587 should be applied

Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for forgery for the purpose of cheating set out in Lim Ek Kian v PP 2003 SGHC 58 should be applied

Criminal Procedure and Sentencing – Sentencing – Principles – Whether section 458A of the Penal Code 1871 provides for mandatory caning for repeat offenders

Criminal Procedure and Sentencing – Sentencing – Date of commencement – Whether disqualification period to commence from date of release or date of conviction

2 September 2024

District Judge Shen Wanqin:

1       Mr Lim Choon Leong, Aaron (“Mr Lim”) is a serial offender who committed a spate of traffic, drug, and property-related offences shortly after he was released on a conditional remission order on 28 June 2022. Even though he was fined or incarcerated for similar offences in 2002, 2006, 2012, 2013, 2016, 2018 and 2022, he has not reformed. Instead, he returned to his life of crime within two weeks of his release and made a foray into the realm of controlled drugs, which indicates a clear escalation in his criminality. From July 2022 to March 2023, he went on an offending spree, and stopped only when he was arrested and remanded by the Police. His scant regard for the law is appalling. General and specific deterrence are clearly the dominant sentencing considerations in this case.

2       Having carefully considered circumstances of this case, the relevant precedents, and the legal issues, I sentenced Mr Lim as follows:

S/N

Charge/ Date

Offence

Prosecution’s Position

Defence’s Position

Sentence

1.

DAC-903093-2024

 

10.07.22

Driving under disqualification (“ DQ ”)

s 43(4)(a) punishable under (“p/u”) s 67A(1) of the Road Traffic Act 1961 (“RTA”)

& s 50T(1)(a) of the of the Prisons Act 1933 (“PA”)

8-11 weeks & 36 months’ DQ from date of conviction

Enhanced sentence of 14 days

8 weeks (consecutive) & 24 months’ DQ from date of conviction

Enhanced sentence of 10 days

8 weeks & 30 months’ DQ from date of release

2.

DAC-903094-2024

10.07.22

Driving without insurance

s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 (“MVA”) p/u s 3(2) read with (“r/w”)

s 3(3) of the MVA & s 50T(1)(a) of the PA

2-4 weeks & 36 months’ DQ from date of conviction

Enhanced sentence of 10 days

1 week & 24 months’ DQ

Enhanced sentence of 10 days

2 weeks & 24 months’ DQ from date of conviction

3.

DAC-903095-2024

10.07.22

Careless driving

s 65(1)(a) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) of the PA

4-8 weeks (consecutive) & 36 months’ DQ from date of release

Enhanced sentence of 12 days

1-2 weeks (consecutive) & 24 months’ DQ

Enhanced sentence of 10 days

5 weeks & 30 months’ DQ from date of release

4.

DAC-913460-2023

31.08.22

Drug consumption

s 8(b)(ii) p/u s 33A(3A) of the Misuse of Drugs Act 1973 (“MDA”) & s 50T(1)(a) of the PA

1 year (consecutive)

Enhanced sentence of 59 days

1 year (consecutive)

Enhanced sentence of 40 days

1 year 2 months (consecutive)

Enhanced sentence of 118 days

5.

DAC-903099-2024

09.09.22

Driving under DQ

s 43(4)(a) p/u s 67A(1) of the RTA & s 50T(1)(a) of the PA

10-14 weeks (consecutive) & 48-60 months’ DQ from date of conviction

Enhanced sentence of 20 days

10 weeks & 30 months’ DQ from date of conviction

Enhanced sentence of 10 days

10 weeks (consecutive) & 36 months’ DQ from date of release

Enhanced sentence of 59 days

6.

DAC-903101-2024

09.09.22

Inconsiderate driving

s 65(1)(b) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) of the PA

6-10 weeks & 48-60 months’ DQ from date of release

Enhanced sentence of 18 days

2 weeks & 30 months’ DQ

Enhanced sentence of 10 days

5 weeks & 30 months’ DQ from date of release

7.

DAC-903103-2024

09.09.22

Failing to render assistance

s 84(7) p/u s 131(2)(b) of the RTA, & s 50T(1)(a) of the PA

4 weeks & 24 months’ DQ from date of conviction

Enhanced sentence of 15 days

1 week & 12 months’ DQ

Enhanced sentence of 10 days

5 weeks & 24 months’ DQ from date of release

8.

DAC-903104-2024

09.09.22

Giving false information

s 182 of the Penal Code 1871 (“PC”) and s 50T(1)(a) of the PA

2-3 weeks

Enhanced sentence of 12 days

2 weeks

Enhanced sentence of 10 days

2 weeks

9.

DAC-905094-2024

10.11.22

Forgery

s 468 of the PC and s 50T(1)(a) of the PA

5-6 months (consecutive)

Enhanced sentence of 70 days

4 months (consecutive)

Enhanced sentence of 60 days

6 months (consecutive)

Enhanced sentence of 53 days

10.

MAC-901358-2023

28.02.23

Criminal trespass

s 447 of the PC

3-4 weeks

3 weeks

3 weeks

11.

MAC-907422-2023

07.03.23

Criminal trespass

s 447 of the PC

6 weeks (consecutive)

6 weeks (consecutive)

6 weeks

12.

DAC-904840-2023

28.03.23

Housebreaking

s 451 PC r/w s 458A of the PC

16 months & 3 strokes of the cane (consecutive)

13-14 months (consecutive)

16 months (consecutive)

Total Sentence

1 years, 21-22 months, 20-28 weeks & 48-60 months’ DQ from date of release.

Enhanced sentence of 230 days

1 year, 17-18 months, 15-16 weeks & 30 months’ DQ from date of release.

Enhanced sentence of 170 days

1 year, 24 months, 10 weeks & 36 months’ DQ from date of release.

Enhanced sentence of 230 days



Background

3       On 30 March 2022, Mr Lim was convicted of 11 traffic, property and hurt-related offences. He was sentenced to an aggregate imprisonment term of two years, fined S$2,500, and disqualified from driving for a total period of 12 months. On 28 June 2022, he was released on a conditional remission order. He knew that pursuant to the order, he must not commit or be convicted of any offence, or else he might be given an enhanced sentence in addition to any punishment given for any offence committed whilst under a remission order.

4       From 10 July 2022 to 28 March 2023, Mr Lim committed 29 traffic, drug and property-related offences. The offences committed are set out below in chronological order.

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Issue 1: Whether the proposed individual sentences were appropriate in the circumstances and in keeping with the precedents

5       This section sets out the issues relating to each proceeded offence and the reasons for imprisonment terms imposed. The issues relating to the disqualification orders and the enhanced sentences imposed under s 50T(1)(a) of the PA will be discussed separately below.

Driving under disqualification

6       Mr Lim drove on 10 July 2022 and 9 September 2022 whilst under a disqualification order, thereby committing two offences under s 43(4)(a) of the RTA (DAC-903093-2024 and DAC 903099-2024) (hereinafter referred to as the “First DQ Offence” and “Second DQ Offence” respectively).

7       The Prosecution sought an imprisonment term of eight to 11 weeks, and 10 to 14 weeks, in respect of the First DQ Offence and the Second DQ Offence respectively. The Defence sought an imprisonment term of eight- and 10- weeks’ imprisonment for the First DQ Offence and Second DQ Offence respectively, which was in line with the Prosecution’s submission. However, both parties confirmed during the hearing that they did not wish to refer the court to any sentencing frameworks or precedents. While sentencing is an art and not a science, sentences must be arrived at after a careful consideration of not only the facts, but also the applicable sentencing frameworks and precedents. Sentencing is meaningful only if it takes place within the confines of the sentencing infrastructure established by the sentencing jurisprudence, sentencing limits and precedents. Hence, I considered the following issues when determining the sentences for the present offences:

(a)     whether the court should rely on any sentencing framework when determining the appropriate sentences for offences of driving under disqualification under s 43(4)(a) of the RTA; and

(b)     whether the parties’ proposed sentences were in line with the sentencing precedents.

Sentencing framework for offence of driving under disqualification

8       The offence under s 43(4)(a) of the RTA is a strict liability offence that is concerned with the public’s protection and safety. It prohibits persons without valid or subsisting licences from endangering human lives by driving on public roads and highways (Chng Wei Meng v PP [2002] 2 SLR(R) 566 (“Chng Wei Meng”) at [18] and [43]). It is “about as serious an offence as a motorist can commit” (Chng Wei Meng at [43]) and invariably manifests in the following way: (a) an offender committed one or more road traffic-related offences which caused him to be disqualified from driving; (b) the offender drove a vehicle whilst under a disqualification order; and (c) this was done in deliberate disregard of the disqualification order (Chng Wei Meng at [44] and Seah Ming Yang Daryle v PP [2024] 4 SLR 1561 (“Daryle Seah”) at [57])). As offences under s 43(4) of the RTA often presented in a particular way with a limited range of sentencing considerations, the benchmark approach and the single starting point approach can be applied to such offences (Ng Kean Meng Terence v PP [2017] 2 SLR 449 (“Terence Ng”) at [28] and [32]).

9       Between the benchmark approach and the single starting point approach, the benchmark approach was preferred for two reasons. First, it allowed for the identification of an archetypal case and a sentencing norm (Terence Ng at [31]). This was especially useful since the bulk of the s 43(4)(a) RTA cases would likely involve the archetypal case. Second, the adoption of the benchmark approach would bring the sentencing approach for s 43(4)(a) RTA offences in line with the benchmark approach endorsed by the High Court for s 35(1) RTA offences (Daryle Seah at [37]). This would in turn ensure consistency in the sentencing approaches adopted for similar types of RTA offences, i.e., ss 35(1) and 43(4) RTA offences (see Daryle Seah at [75]).

10     Having established that the benchmark approach was a suitable approach for assessing the appropriate sentence for an offence of driving whilst under disqualification, I then turned to case law and the facts to determine an appropriate sentence for the offences. A review of the cases showed that the courts had consistently taken a serious view of offences under s 43(4) of the RTA and emphasised that offenders who drove whilst under disqualification would be punished strictly (PP v Lee Cheow Loong Charles [2008] 4 SLR(R) 961 at [31] and Daryle Seah at [58]). This was because such offenders, being recalcitrant offenders who would have inevitably driven without insurance, put victims at risk of receiving inadequate compensation and endangered the public (Daryle Seah at [58] and Chng Wei Meng at [43]). Such offences were also difficult to detect.

11     Before 1 November 2019, the prescribed punishment for the offence of driving under disqualification under s 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“pre-2019 RTA”) was a fine not exceeding S$10,000, or imprisonment not exceeding 3 years, or both (see the left column in the table below). Following the passing of the Road Traffic (Amendment) Act 2019 (Act 19 of 2019) (“2019 RTA amendments”), the prescribed punishment for a first offence under s 43(4)(a) of the RTA is a fine not exceeding S$10,000, or imprisonment for a term not exceeding 3 years, or both. However, the prescribed punishment for a repeat offender was doubled (see the right column in the table below).

Section 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed)

(Pre- 2019 RTA amendments)

Section 43(4) of the Road Traffic Act 1961

(Post- 2019 RTA amendments)

Provisions as to disqualifications and suspensions

43.– […]

(4) If any person who is disqualified as mentioned in subsection (3) drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class or description, a motor vehicle of that class or description, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.

Provisions as to disqualifications and suspensions

43. – […]

(4) If any person who is disqualified as mentioned in subsection (3) drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class or description, the person drives on a road a motor vehicle of that class or description, the person shall be guilty of an offence and shall be liable on conviction as follows:

(a) to a fine not exceeding S$10,000 or to imprisonment for a term not exceeding 3 years or to both;

(b) where the person is a repeat offender, to a fine not exceeding S$20,000 or to imprisonment for a term not exceeding 6 years or to both.



12     Before the 2019 RTA amendments, the High Court in Fam Shey Yee v PP [2012] 3 SLR 927 (“Fam Shey Yee”) at [12] observed that the usual tariff for an offence of driving whilst under disqualification was between four to eight weeks’ imprisonment if the offender pleaded guilty to a first offence under s 43(4) of the RTA. Following the 2019 RTA amendments, the High Court did not pronounce any benchmark sentence for an offence of driving whilst under disqualification. However, the District Court in PP v Peng Jianwen [2021] SGDC 93 (“Peng Jianwen”) observed at [47] that the “starting point sentence” for such offences is eight weeks’ imprisonment.

13     To arrive at an appropriate sentence for the First DQ Offence and the Second DQ Offence, it was necessary for me to consider the issue as to whether the sentencing tariff pronounced in Fam Shey Yee would still be applicable after the 2019 RTA amendments. Having considered the context in which Fam Shey Yee was decided, the legislative developments thereafter and the relevant cases, I concluded that the tariff set out in Fam Shey Yee, while relevant, should be applied with caution, as the prevailing sentencing practice supports a benchmark sentence of eight weeks’ imprisonment for an offence of driving whilst under disqualification. This benchmark sentence also comports with parliamentary intent.

14     First, the benchmark sentence of eight weeks’ imprisonment is consistent with the prevailing sentencing practice. According to the Sentencing Information and Research Repository, the median sentence for an offence under s 43(4)(a) RTA is eight weeks’ imprisonment (see the table below), based on a sample size of 109 cases. The graph below also shows that the sentences imposed are clustered around eight weeks’ imprisonment. AS for the remaining cases, the sentences mostly exceeded eight weeks’ imprisonment, and only a minority of the offenders received sentences in the range of two to six weeks’ imprisonment. Hence, based on the prevailing sentencing trends, the sentencing tariff of four to eight weeks’ imprisonment established in Fam Shey Yee should be applied with caution.

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15     Second, the benchmark sentence of eight weeks’ imprisonment comports with Parliament’s intent to punish irresponsible drivers more severely after the 2019 RTA amendments. This intent could be gleaned from the parliamentary debates and the legislative amendments.

16     During the Second Reading of the Road Traffic (Amendment) Bill (Bill No. 13/2019) on 8 July 2019, Second Minister for Home Affairs, Mrs Josephine Teo, explained that the impetus behind the comprehensive review of the RTA, and the consequent amendments to it, was the need for stronger deterrence and an “enhanced approach” against irresponsible driving offences. Specifically, the purpose of adopting an “enhanced approach” was to “raise sentencing norms for egregious irresponsible driving offences” (Singapore Parliamentary Debates, Official Report (8 July 2019, vol 94). As all instances of a disqualified driver driving under a disqualification order fall squarely within the definition of irresponsible driving, an offence of driving under disqualification should generally attract a stiffer punishment after the 2019 RTA amendments.

17     Further, the Parliament, in amending s 43(4) of the pre-2019 RTA to the current version in s 43(4) of the RTA, intended to confer a wider discretion on the courts to mete out higher sentences in appropriate cases. Before the 2019 RTA amendments, the offence of driving whilst under disqualification under s 43(4) of the pre-2019 RTA attracted a single punishment range for both first-time and repeat offenders, presumably with the sentences for first-time offenders being clustered at the lower end of the range (i.e., four to eight weeks’ imprisonment established in Fam Shey Yee), and the sentences for identically situated repeat offenders falling at the upper end of the range.

18     After the 2019 RTA amendments, the punishment range under s 43(4) of the pre-2019 RTA is now reserved for first-time offenders, and the maximum prescribed punishment for repeat offenders is double that of the maximum prescribed penalty for first-time offenders. This means that the sentences for first-time offenders need not be clustered at the lower end of the range – the courts can consider the full range of penalties prescribed in determining the appropriate sentence in each case, and impose higher sentences when the facts justify them (Ong Chee Eng v PP [2012] 3 SLR 776 (“Ong Chee Eng”) at [24] and Suventher Shanmugam v PP [2017] 2 SLR 115 at [26]).

19     The starting benchmark sentence of eight weeks’ imprisonment comports with the parliamentary intent to punish irresponsible drivers more severely, as this starting sentence was calibrated upwards from the starting tariff established in Fam Shey Yee before the 2019 RTA amendments. As the maximum prescribed penalty for a repeat offender was doubled after the 2019 RTA amendments, a proportionate increase of the starting sentence of four weeks’ imprisonment for a first offender, established in Fam Shey Yee, was appropriate, especially given the need to utilise the full spectrum of sentences prescribed. On the other hand, a strict and unthinking application of the pre-2019 RTA sentencing tariff of four to eight weeks’ imprisonment not only defeats the parliamentary intent, but also has the undesirable effect of causing the sentences to be arbitrarily clustered in a particular segment of the full range (Ong Chee Eng at [24] and Huang Ying-Chun v PP [2019] 3 SLR 606 at [79]). This is antithetical to the duty of the court to ensure that the full spectrum is carefully explored in determining the appropriate sentence in each case (Ong Chee Eng at [24]).

Appropriate sentence for offence of driving under disqualification

20     In arriving at the sentences imposed, I also considered the following offence-specific and offender-specific factors which applied to both offences unless otherwise stated:

Offence-specific factors:

(a)      Premeditation and planning: Mr Lim took steps to rent a car in advance, knowing that he had been disqualified from driving. On the facts, there was no reason for him to rent a car other than for the purpose of driving it. His offences were therefore premeditated and planned. His culpability was higher than that of an offender who drove spontaneously whilst under disqualification.

Offender-specific factors:

(b)      Antecedents: Mr Lim was convicted of the related offences of taking a motor vehicle without consent and driving without licence in 2002 and 2006, and an offence of driving without licence in 2022. While the earlier offences are dated, the present offences were committed relatively close in time to his prior conviction for driving without a licence in 2022. Specific deterrence was therefore necessary.

(c)      TIC charge (Second DQ Offence only): Mr Lim committed a separate offence of driving whilst under disqualification on 29 August 2022, which was the subject of a charge DAC-916128-2024 that was taken into consideration in sentencing (“TIC’). The effect of the TIC charge was to enhance the sentence for the Second DQ Offence, which was of the same nature, and was committed a mere 11 days after the TIC offence (PP v UI [2008] 4 SLR(R) 500 (“UI”) at [38]).

(d)      Re-offending whilst under investigation: The First DQ Offence and the Second DQ Offence were committed on 10 July 2022 and 9 September 2022 respectively, shortly after the prior disqualification order was imposed on 30 March 2022. Mr Lim committed the Second DQ Offence, despite being aware that he was investigated for the earlier traffic and drug offences. His conduct was analogous to one who had reoffended while on bail, and also revealed his lack of remorse and his blatant disregard for the law, which in turn called for a stiffer sentence (Tan Gek Young v PP and another appeal [2017] 5 SLR 820 (“Tan Gek Young”) at [73(c)]).

21     Based on the analysis above, the Second DQ Offence was more egregious than the First DQ Offence due to the factors set out at [20(c)] and [20(d)]. There were no compelling mitigating factors which I could count in Mr Lim’s favour. That said, I applied the full sentencing discount attributable to his early indication of plea (Stage 1) to the sentence he would have received if he was convicted after trial. Bearing in mind the benchmark sentence of eight weeks’ imprisonment, I sentenced him to eight- and 10- weeks’ imprisonment for the First DQ Offence and Second DQ Offence respectively. The precedents below showed that the sentences were amply justified.

Case / Date of Decision

Aggravating Factors / Material Facts

Mitigating Factors

Sentence Imposed

PP v Lee Seck Lian [2024] SGDC 33 (“Lee Seck Lian”)

19 February 2024

Magistrate’s Appeals No. 9016 of 2024

· Two TIC charges for traffic offences.

· The offender was traced for an offence of drink driving, for which she was fined S$6,500 and given a 36-month DQ order.

· The offender was “not meaningfully cognisant” of the DQ order.

· She pleaded guilty and fully compensated for the property damage caused.

· She met with an accident that was caused by a cockroach on her thigh.

On appeal, the High Court set aside the fine of S$10,000 and substituted it with six weeks’ imprisonment.

The DQ order of four years was not disturbed.

PP v Abdul Fathani Bin Khairuddin [2021] SGDC 143 (“Abdul Fathani”)

29 July 2021

Magistrate’s Appeals No. 9133 of 2021

· The offender was late for work. He drove the car to collect folic acid, to pass it to his wife. He re-offended six months after the original DQ order was imposed.

· One TIC charge for failing to deliver his driving licence to the Traffic Police within seven days of the original DQ order.

· He was traced for drink driving and inconsiderate driving, for which he was fined S$2,500 and $500 respectively and given DQ orders of 23 months and 3 months.

· The offence did not cause any accident or harm.

Eight weeks’ imprisonment and 42 months’ DQ from the date of release from Prisons. The sentence was affirmed on appeal.

PP v Peng Jianwen [2021] SGDC 93 (i.e., Peng Jianwen)

24 May 2021

Magistrate’s Appeals No. 9895 of 2020

· The offender committed the offence about two months after the original DQ order was imposed. He took over the car from his wife because she complained of dizziness.

· Two TIC charges for driving without insurance and failing to wear a seat belt.

· He was traced for an offence of dangerous driving for which he was sentenced to a fine of S$3,750 and a 12-month DQ order.

· The offender pleaded guilty and fully cooperated with the Police.

· No evidence of accident or harm caused.

Eight weeks’ imprisonment and 36 months’ DQ from date of release. The sentence was affirmed on appeal.



22     In respect of the First DQ Offence, the culpabilities of Mr Lim and Mr Abdul Fathani were similar, as their offences of driving whilst under disqualification were premeditated and planned. While Mr Lim’s record of traffic violations was more extensive, the crux of the matter was that both offenders, being traced for similar antecedents, needed to be specifically deterred. I therefore accepted that the sentence of eight weeks’ imprisonment in Abdul Fathani could apply to Mr Lim.

23     However, Mr Lim, in committing the Second DQ Offence, bore a higher culpability as compared to the offenders in all three cases. This was because he committed the Second DQ Offence while being investigated for other offences of the same nature. He also committed the Second DQ Offence shortly after committing other traffic and drug offences. His conduct revealed his lack of remorse and a deep-seated disrespect for law and authority, which were significant distinguishing factors. Hence, based on a comparison of the facts, there was sufficient justification for calibrating the sentence for the Second DQ Offence upwards to 10 weeks’ imprisonment.

Driving without insurance

24     As for the contravention of s 3(1) of the MVA, which amounted to an offence punishable under s 3(2) read with s 3(3) of the MVA (DAC-903094-2024), the usual sentence, even where the offender claimed trial, is a fine and disqualification from driving all classes of vehicles for 12 months (see, for example, Sulaiman bin Mohd Hassan v PP [2021] 5 SLR 763 and Prathib s/o M Balan v PP [2018] 3 SLR 1066). The Prosecution submitted for an imprisonment term of two to four weeks, while the Defence submitted for an imprisonment term of one week.

25     I agreed with both parties that the usual fine could not be applied to a recalcitrant offender like Mr Lim. He committed offence of driving without insurance, even though he was already fined for the offence of driving without insurance in 2002 and 2006, and consented to have the charge for an offence of the same nature taken into consideration in 2022. Further, two TIC charges DAC-903100-2024 and DAC-916129-2024 for driving without insurance were taken into consideration in sentencing, and the effect of such charges was to enhance the sentence for the proceeded offence (UI at [38]). After factoring in the aforesaid circumstances and applying the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1), I imposed a short custodial term of two weeks’ imprisonment for the offence.

Careless driving and inconsiderate driving

26     Mr Lim was convicted of an offence under s 65(1)(a) of the RTA, for driving a motor vehicle on a road on 10 July 2022 without due care and attention (DAC-903095-2024) (the “Careless Driving Offence”), and another offence under s 65(1)(b) of the RTA, for driving a motor vehicle on a road on 9 September 2022, without reasonable consideration for other persons using the road (DAC-903101-2024) (the “Inconsiderate Driving Offence”). Prior to the said offences, Mr Lim was convicted on 30 March 2022 of an offence of careless driving under s 65(1)(a) of the RTA, and was also convicted on 30 November 2006 of an offence of reckless or dangerous driving under s 64(1) of the pre-2019 RTA. He therefore qualified as a repeat offender, defined in s 65(8) of the RTA. Accordingly, the Careless Driving Offence and the Inconsiderate Driving Offence were punishable under s 65(5)(b) read with s 67A(1) of the RTA. The court was also empowered to make a disqualification order under s 42(1) of the RTA.

Sentencing framework for careless driving and inconsiderate driving offences

27     Section 65(5)(b) of the RTA provides that a repeat offender shall on conviction of an offence under s 65(1) of the RTA be liable to a fine not exceeding S$3,000 or to imprisonment for a term not exceeding 12 months or to both. In determining the sentences for the Careless Driving Offence and the Inconsiderate Driving Offence, I was required to confront the novel issue as to whether the sentencing framework in Wu Zhi Yong v PP [2022] 4 SLR 587 (“Wu Zhi Yong”) should be applied.

28     In Wu Zhi Yong, Chief Justice Sundaresh Menon (“Menon CJ”) reviewed the sentencing considerations and precedents for reckless driving offences involving serious offenders, punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA. Following the review, Menon CJ found it appropriate to apply a modified “sentencing bands” approach to reckless driving offences, because (a) there were no typical set of facts that would characterise a reckless driving offence; and (b) there was no identifiable key determinant of a starting point sentence, as Parliament already identified one principal element – that of harm – and delineated the range of sentences applicable in relation to each type of harm (Wu Zhi Yong at [24]–[30]). The modified “sentencing bands” approach was summarised as follows (Wu Zhi Yong at [30] and [49]):

(a)     As a first step, the court should identify the band applicable to the offence and the indicative starting point with reference to that band, having regard to the offence-specific factors present. These encompass factors relating to the manner and mode by which the offence was committed, as well as the harm caused by the offender.

(b)     At the second step, the court calibrates the sentence from the starting point by having regard to the offender-specific factors, being the aggravating and mitigating factors that are personal to the offender.

29     In PP v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng Chang Tong”) at [32], [35] and [38]–[39], the High Court held that the sentencing framework for reckless driving offences involving serious offenders punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA, laid down in Wu Zhi Yong, applied equally to the offence of careless driving by a repeat and serious offender punishable under s 65(5)(b) read with s 65(5)(c) of the RTA. This was because both types of offences were similar in seriousness in terms of the prescribed sentencing range. The maximum sentence for a careless driving offence punishable under s 65(5)(b) and 65(5)(c) of the RTA is a fine of S$13,000 and an imprisonment term of 24 months. The maximum sentence for a reckless driving offence under punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA is a fine of S$15,000, and/or imprisonment term of 24 months.

30     In this case, both parties submitted that the framework in Wu Zhi Yong did not apply as the reckless driving offence dealt with in Wu Zhi Yong was different from the nature of the present offences. The Prosecution sought an imprisonment term of four to eight weeks for the Careless Driving Offence, and an imprisonment term between six to ten weeks for the Inconsiderate Driving Offence, without invoking any sentencing framework or precedents. The Defence sought a sentence of one to two weeks’ imprisonment for each offence based on the case PP v Anson Tan Chin Siang [2023] SGDC 298 (“Anson Tan”). I was not convinced that the distinct nature of the offences involved was dispositive of the issue. In any event, the reckless driving, careless driving and inconsiderate driving offences were all traffic offences that targeted an offender’s unsatisfactory manner of driving. In my assessment, the sentencing approach in Wu Zhi Yong could be extrapolated and applied to careless and inconsiderate driving offences involving repeat offenders punishable under s 65(5)(b) of the RTA for the reasons below.

31     First, even though Wu Zhi Yong framework was promulgated for the offence of reckless driving punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA, offences under s 64(2C) and s 65(1) of the RTA are both subject to the same tiered punishment framework whereby the punishment is calibrated according to the degree of hurt caused, and specific ranges of punishments are prescribed for each category of harm (Wu Zhi Yong at [15]). In respect of both types of offences, the factor of harm is not a significant element in sentencing, as it is largely already reflected in the different punishment provisions and in the choice between the different provisions (Wu Zhi Yong at [28]). Given these broad similarities, the “sentencing bands” approach and the sentencing considerations espoused in Wu Zhi Yong can provide useful guidance in sentencing an offender for an offence under s 65(1) of the RTA. In Cheng Chang Tong at [39], the High Court similarly opined that the assessment of the relevant sentencing factors should be similar for both dangerous driving and careless driving offences, as both careless driving and dangerous driving cases had been cited in Wu Zhi Yong to illustrate the different levels of seriousness of offending (Cheng Chang Tong at [39]).

32     Second, in Wu Zhi Yong at [47], Menon CJ envisaged that adjustments to the sentencing approach laid down in that case could be made in a suitable case, in view of the different punishments prescribed for a “repeat offender” or “serious repeat offender”. Hence, Menon CJ observed that “the formulation of these sentencing ranges [would] need to be done by the court in suitable cases”. In formulating the sentencing ranges to cater to a repeat offender who committed offences under s 65(1) of the RTA, the court would merely be extrapolating from the Wu Zhi Yong framework, and would not be devising any new frameworks – a task best left to the appellate court (PP v Sindok Trading Pte Ltd (now known as BSS Global Pte Ltd) and other appeals [2022] 5 SLR 336 at [29]).

33     More significantly, this was not the first case in which the courts had extrapolated from and applied the Wu Zhi Yong framework to suitable cases. For example, in Cheng Chang Tong, the High Court, in applying the Wu Zhi Yong framework to a “serious offender” and “repeat offender” who committed an offence of careless driving under s 65(1)(a) and punishable under s 65(5)(b) read with s 65(5)(c), s 65(6)(i) and 67A(1)(a) of the RTA, implicitly recognised the usefulness of the sentencing bands approach in deriving the sentences for careless driving offences. Similarly, in PP v Kenneth Tham Wei Cheow [2023] SGDC 190 at [30]–[35], the District Court adapted the Wu Zhi Yong framework and applied it to an offence of careless driving committed by a “serious repeat offender” under s 65(1)(a) and punishable under s 65(5)(d) read with s 65(5)(a) and 65(7)(d) of the RTA.

34     Hence, adapting Wu Zhi Yong framework to determine the appropriate sentence for a “repeat offender” who engaged in careless or inconsiderate driving, and bearing in mind the need to utilise the full spectrum of possible sentences whilst leaving room for the sentencing judge to calibrate the sentences upwards or downwards in view of other sentencing factors (Vasentha d/o Joseph v PP [2015] 5 SLR 122 (“Vasentha”) at [46]), the adjusted sentencing bands for the Careless Driving Offence and the Inconsiderate Driving Offence (collectively, “the Adapted Framework”) were as follows:

Band

Features

Reckless Driving – Wu Zhi Yong framework (discounting DQ)

Careless/Inconsiderate Driving involving Repeat Offenders

1

No offence-specific aggravating factors present / present to a limited extent

A fine between S$2,000 and S$15,000 and/or one month’s imprisonment

A fine of up to S$3,000 and/or two weeks’ imprisonment

2

Two or more offence-specific aggravating factors

Between one month’s and one year’s imprisonment

Between two weeks’ and six months’ imprisonment

3

Multiple offence-specific aggravating factors

Between one year’s and two years’ imprisonment

Between six months’ and one year’s imprisonment



35     The Adapted Framework was derived in the following manner:

(a)      Band 1: In Wu Zhi Yong, the High Court set the lower limit at S$2,000 because the offence of reckless driving is punishable under s 64(2C)(c) with a minimum fine of not less than S$2,000. The High Court also set the upper limit at one month’s imprisonment, which was 1/24 of the sentencing range of two years for the reckless driving offence. As the Careless Driving Offence and the Inconsiderate Driving Offence did not attract a minimum fine, it was not necessary to stipulate a minimum quantum for the fine. The upper limit of two weeks’ imprisonment was derived by applying a 1/24 ratio to the prescribed sentencing range of 12 months for the Careless Driving Offence and Inconsiderate Driving Offence.

(b)      Band 2: The High Court in Wu Zhi Yong set the lower limit at one month’s imprisonment, and the upper limit at one year’s imprisonment, which were pegged at 1/24 and 1/2 of the prescribed sentencing range of two years for the reckless driving offence. The sentencing range stipulated in Band 2 of the Adapted Framework – between two weeks’ imprisonment (1/24 x 12 months) and six months’ imprisonment (1/2 x 12 months) – was derived by applying the same 1/24 and 1/2 ratio to the prescribed sentencing range of 12 months for Careless Driving Offence and the Inconsiderate Driving Offence.

(c)      Band 3: In Wu Zhi Yong, the High Court set the lower limit and upper limit as one year’s imprisonment and two years’ imprisonment respectively, which were pegged at 1/2 and 100% of the sentencing range prescribed for the reckless driving offence. Applying the same ratio, the sentencing range for Band 3 of the Adapted Framework was between six months’ (1/2 x 12 months) and one year’s imprisonment (i.e. the maximum prescribed sentence).

Application of the Adapted Framework

36     Applying the Adapted Framework, I arrived at a sentence of five weeks’ imprisonment for each offence. My analysis was as follows:

37      Step 1. I found that the Careless Driving Offence and the Inconsiderate Driving Offence fell within Band 2, and that the custodial threshold was crossed, given the following offence-specific aggravating factors which were applicable to both offences:

(a)      Serious potential harm: In respect of the Careless Driving Offence, Mr Lim fell asleep at the wheel and failed to exercise proper control of the car. As Mr Lim was not conscious at the time of the offence and could not exercise proper judgment and control of the vehicle, he could have caused serious harm to the persons and properties around him. Similarly, in respect of the Inconsiderate Driving Offence, Mr Lim collided into a lorry – a heavy vehicle, along a narrow road at Lorong 8 Geylang, where the buildings and cars on the road would have been in close proximity. This, coupled with his manner of driving, could have caused significant harm to other persons and properties in his vicinity.

(b)      Significant property damage: The Careless Driving Offence and the Inconsiderate Driving Offence resulted in actual property damage. Following the Careless Driving Offence, the front of Mr Lim’s rented car was ripped off and the rear was cracked. The sides of the car were scratched and crumpled, and the front tyres were punctured. The car’s windscreen was cracked, and the left side mirror was damaged. The repair costs amounted to S$14,200, which was also indicative of the extensive and serious damage caused. Apart from the damage to the rented car, Mr Lim also collided into the wall near Lamp Post 42, thereby scratching the wall, which is the Government’s property. Following the Inconsiderate Driving Offence, another rented car driven by Mr Lim was scratched and cracked at the front, and its front portion was ripped off, while the right side of the victim’s lorry was scratched and dented. Even though the loss to the victim was not quantified, the victim was put to expense in repairing the lorry. Mr Lim did not compensate for any of the damage caused and costs incurred.

38      Step 2. I then considered the following offender-specific factors which were relevant to both the Careless Driving Offence and the Inconsiderate Driving Offence, in calibrating the sentence upwards from the starting point of two weeks’ imprisonment for Band 2 cases:

(a)      Antecedents: Apart from the antecedents for careless driving under s 65(1)(a) of the RTA (convicted on 30 March 2022) and for reckless or dangerous driving under s 64(1) of the pre-2019 RTA (convicted on 30 November 2006), which were considered under the “repeat offender” provision, Mr Lim had an extensive record of relevant antecedents. He was convicted of an offence of careless riding or driving in 2002. Another offence of careless driving was taken into consideration in sentencing in 2022. He was also traced with several compounded offences for failing to give driver’s particulars (in 2013), inconsiderate driving (in 2017), careless driving (on two occasions in 2018 and in 2020), failing to stop after an accident (in 2018) and speeding (in 2019). While several of the antecedents were dated, these antecedents, when viewed holistically, showed Mr Lim to be a recalcitrant offender who had a propensity to flout traffic rules.

(b)      TIC charge (Inconsiderate Driving Offence only): Mr Lim committed another offence of careless driving on 29 August 2022, which was the subject of a TIC charge DAC-916130-2024. The effect of the TIC charge was to enhance the sentence for the Inconsiderate Driving Offence, which was not only similar in nature but also committed shortly after the careless driving offence (UI [2008] 4 SLR(R) 500 at [38]).

(c)      Re-offending whilst under investigation and shortly after release on remission order: The Careless Driving Offence and Inconsiderate Driving Offence were committed shortly after Mr Lim was released on a remission order on 28 June 2022 and whilst he was being investigated for his earlier traffic and drug offences. His conduct showed his impenitence and blatant disregard for the law, which in turn called for a stiffer sentence (Tan Gek Young at [73(c)]).

39     On a holistic assessment, the gravity of the Careless Driving Offence and Inconsiderate Driving Offence was similar. While Mr Lim fell asleep at the time of the Careless Driving Offence and caused more extensive property damage, he committed the Inconsiderate Driving Offence while under investigation and the TIC charge also enhanced the sentence for the Inconsiderate Driving Offence. The Defence did not attempt to rely on any mitigating facts as there was none. However, because of Mr Lim’s early indication of plea (Stage 1), I applied the full sentencing discount to the sentence he would have received if he was convicted after trial and sentenced him to five weeks’ imprisonment for each offence.

40     The Defence relied on the case of PP v Anson Tan Chin Siang [2023] SGDC 298 (“Anson Tan”) for its sentencing position of one to two weeks’ imprisonment, but a comparison of both cases showed the sentence of five weeks’ imprisonment to be justified. In Anson Tan, the offender similarly re-offended whilst under a remission order, by committing an inconsiderate driving offence punishable under s 65(5)(b) of the pre-2019 RTA read with s 50T(1)(a) of the Prisons Act (Cap 247). He was sentenced to one week’s imprisonment for the inconsiderate driving offence.

41     While Mr Lim and Mr Tan were both heavily traced and re-offended whilst under a remission order, the Careless Driving Offence and the Inconsiderate Driving Offence were significantly more egregious than Mr Tan’s inconsiderate driving offence. Crucially, Mr Lim fell asleep at the wheel at the time of the Careless Driving Offence, and collided with a lorry on a narrow road at the time of the Inconsiderate Driving Offence. These aggravating circumstances did not feature in Mr Tan’s case. Instead, Mr Tan only caused the car to move forward out of a parking lot in a car park (Anson Tan at [8]–[9]). Unsurprisingly, Mr Lim’s offences resulted in more extensive property damage, whereas Mr Tan’s offence resulted in only minor damage to the front portion of the vehicles and pain on his girlfriend’s arm. Given these circumstances, it was only reasonable that a significant uplift be applied to the sentence imposed on Mr Tan.

42     To be clear, in arriving at the sentences imposed, I did not factor in the antecedents for careless driving under s 65(1)(a) of the RTA (convicted on 30 March 2022) and for reckless or dangerous driving under s 64(1) of the pre-2019 RTA (convicted on 30 November 2006) at any step of the sentencing framework. This was in line with the guidance given by the High Court in Wu Zhi Yong at [47] and [48] and was also sound in principle. As Parliament already prescribed enhanced penalties in s 65(5)(b) of the RTA on account of the said antecedents which rendered Mr Lim a “repeat offender”, to consider such antecedents again in sentencing would amount to double counting (Wu Zhi Yong at [47]).

43     Even though the High Court in Cheng Chang Tong at [59] appeared to have treated the “repeat offender” status as an offender-specific aggravating factor, the High Court did not consider the antecedents that triggered the “repeat offender” status under s 65(5)(b) of the RTA in sentencing the respondent. Further, the High Court’s observations were made in the context of the discussion on the seriousness of the offence (see Cheng Chang Tong at [59]–[60]) and should not be understood as endorsing a consideration of the antecedents that triggered the repeat offender status in sentencing, especially since the antecedents was already built into the legislation.

44     Finally, even though the Careless Driving Offence and the Inconsiderate Driving Offence were also punishable under s 67A(1) of the RTA, I agreed with the Prosecution that it was not necessary to invoke s 67A(1) to impose a punishment in excess of the prescribed punishment for the offences. The imposition of enhanced penalties under s 67A(1) of the RTA is a drastic measure to be deployed only in limited circumstances (Lee Shin Nan v PP [2024] 3 SLR 1730 (“Lee Shin Nan”) at [56]). In this case, the duration and frequency of re-offending was not so severe as to warrant enhanced penalties, especially since Mr Lim’s antecedent sentences did not even come close to the maximum sentences (Lee Shin Nan at [89]).

Failing to render assistance

45     Mr Lim was required, by virtue of s 84(3) of the RTA, to render any assistance that might reasonably be in his power to render, after he collided into and caused damage to the lorry along Lorong 8 Geylang on 9 September 2022. His contravention of s 84(3) amounted to an offence under s 84(7) of the RTA, which was punishable under s 131(2)(b) of the RTA (DAC-903103-2024) (“the Failing to Render Assistance Offence”). As this was Mr Lim’s second offence for failing to render assistance, the offence was punishable under s 131(2)(b) of the RTA with a fine not exceeding S$2,000 or imprisonment for a term not exceeding six months or both. He was fined S$800 and disqualified from driving for six months for his previous offence of the same nature in 2006. The Prosecutions sought an imprisonment term of four weeks. The Defence sought an imprisonment term of one week. In my view, the sentence of five weeks’ imprisonment was appropriate.

46     Hit-and-run offences, including an offence for failing to render assistance, must be severely dealt with as they constitute a reprehensible abdication of a fundamental moral obligation to render assistance to the victim of an accident (PP v Lee Meng Soon [2007] 4 SLR(R) 240 (“Lee Meng Soon”) at [34]). Such offences are wholly unacceptable as they obstruct investigations and result in wastage of public resources. For example, when the offender leaves the scene before the arrival of the Police, the Police cannot obtain contemporaneous evidence and statements, and require the use of significant Police resources to ascertain the identity of the assailant (see Haleem Bathusa bin Abdul Rahim v PP [2023] 3 SLR 1284 at [48], [49] and [51]). Hence, there is strong public interest in deterring hit-and-run offences.

47     The Failing to Render Assistance Offence was more aggravated than the archetypal case, because Mr Lim also used violence and wilfully refused to assist the victim of the accident on 9 September 2022, in a calculated attempt to escape the consequences of his crime. After the accident, the victim specifically requested to exchange particulars, but Mr Lim rebuffed the victim’s requests (TIC charge – DAC-903102-2024) and pushed him twice. Mr Lim similarly failed to stop and provide his particulars or render assistance after another accident on 10 July 2022, and instead caused his rented car to remain in a position that was likely to cause inconvenience to other road users (see TIC charges – DAC-903096-2024, DAC-903097-2024 and DAC-903098-2024). In all the afore-mentioned cases, Mr Lim callously left the scene instead of rendering the necessary assistance. The TIC charges tendered in relation to the afore-mentioned conduct had the effect of enhancing the sentence for the Failing to Render Assistance Offence.

48     Further, Mr Lim had similar antecedents. In 2006, Mr Lim was convicted of three offences of failing to stop in an accident, failing to render assistance and unauthorised removal of accident vehicle. He was sentenced to a total fine of S$2,200 which was paid in full. In 2022, Mr Lim was convicted of an offence of failing to stop the vehicle and take reasonable steps to inform the owner of the damaged vehicle. He was fined S$1,500 and disqualified from driving for 12 months. On the same occasion, two other charges for failing to give particulars or to report accident within 24 hours were taken into consideration in sentencing. Given the similar nature of the antecedents, the principle of specific deterrence was clearly engaged.

49     The Failing to Render Assistance Offence was therefore unlike the usual hit-and-run cases involving offenders who were motivated by fear, confusion and some sort of impulse to hide from the consequences of their crime (Lee Meng Soon at [39]). Mr Lim was a seasoned offender who knew full well what he was doing when he met the victim’s request for particulars with violence and chose not to render any assistance on 9 September 2022, despite having been asked specifically to cooperate. In PP v Ho Loong Chan [2018] SGDC 134, the offender pleaded guilty and was sentenced to one week’s imprisonment for an offence of failing to render assistance under s 84(7) and punishable under s 131(2)(a) of the RTA (for a first offender). As Mr Lim was a repeat offender whose offence was punishable under s 131(2)(b) of the RTA with imprisonment of up to six months, a significant uplift should be applied to the sentence for the first offender. That said, I also applied the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1) to the sentence he would have received if he claimed trial. I therefore sentenced Mr Lim to five weeks’ imprisonment for the Failing to Render Assistance Offence.

Giving false information

50     Mr Lim committed an offence under s 182 of the PC (DAC-903104-2024) by falsely telling the Police that he called to report the accident on 9 September 2022 but was told to leave the scene as the victim did not suffer any injuries. I agreed with parties that the sentence of two weeks’ imprisonment was appropriate. Mr Lim’s offence under s 182 of the PC had the potential to frustrate the progress of investigations, thwart the course of justice, and embarrass the Police. As the potential harm arising from the offence was appreciable, the starting sentence for the offence should be a custodial term (Koh Yong Chiah v PP [2017] 3 SLR 447 at [50]).

51     The offence also engendered significant harm in the form of a wastage of public investigative resources and time. Mr Lim knowingly lied to the Police and did not come clean voluntarily before his lie was found out. As a result, the Police expended time and effort to investigate the matter. While the deception was rudimentary, spontaneous, and intended to shield Mr Lim from investigation or prosecution, these factors were not mitigatory in nature, and were only relevant to the assessment on his culpability. Having applied the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1) to the sentence he would have received if he was convicted after a trial, I sentenced Mr Lim to two weeks’ imprisonment for the offence.

Drug consumption

52     The facts of the drug consumption offence (DAC-913460-2023) were unremarkable, and this was Mr Lim’s first conviction for drug consumption. Both parties sought the mandatory minimum sentence of one year’s imprisonment. However, even considering his early indication of plea (Stage 1) for which I was prepared to apply the full sentencing discount, I did not think the mandatory minimum sentence was appropriate, as a minimum sentence would generally be meant for an offender who exhibited the least degree of culpability, i.e., who committed the crime in question in the absence of any aggravating factors (UI at [76]).

53     Mr Lim could not be said to have exhibited the least degree of culpability, nor could his crime be characterised as one committed in the absence of any aggravating factors. Besides consuming methamphetamine on or before 31 August 2024, he also committed an offence of possession of drug utensils under s 9 of the MDA on 31 August 2022, which was the subject of a TIC charge (DAC-913461-2023). After committing a spate of traffic-related and property-related offences, Mr Lim committed yet another offence of consuming methamphetamine under s 8(b)(ii) of the MDA, on or before 9 March 2023. This was the subject of another TIC charge (DAC-909517-2023).

54     The effect of the TIC charges was to enhance the sentence for the proceeded drug consumption offence. After considering the effect of the two TIC charges for the drug-related offences and applying the full sentencing discount due to Mr Lim on account of his early indication of plea to the sentence he would have received if he was convicted after trial, I sentenced Mr Lim to one year and two months’ imprisonment. This was a fair outcome, considering Mr Lim could not be placed in the same position as another putative offender who committed an archetypal offence of drug consumption without any aggravating factors.

Forgery for the purpose of cheating

55     The offence of forgery for the purpose of cheating under s 468 of the PC (DAC-905094-2024) is punishable with imprisonment for a term which may extend to 10 years and/or a fine. In respect of the forgery offence committed by Mr Lim on 10 November 2022 (“the Forgery Offence”), the sentencing position put forth by both parties was similar – the Prosecution sought a sentence of five to six months’ imprisonment, while the Defence sought a sentence of four months’ imprisonment, on the basis that Mr Lim did not profit from the offence. I sentenced Mr Lim to six months’ imprisonment.

Sentencing approach for offence of forgery for the purpose of cheating

56     In Lim Ek Kian v PP [2003] SGHC 58 (“Lim Ek Kian”) at [35], Yong Pung How CJ observed that the courts have always treated offences of forgery for the purpose of cheating seriously, and “past cases have adopted a 12 month sentence of imprisonment as a benchmark”. The main issue was whether this benchmark of 12 months should be applied to the present offence under s 468 of the PC. In my view, the benchmark should be applied with caution for the following reasons.

57     First, the benchmark in Lim Ek Kian must be viewed with circumspection, as the legislation and sentencing jurisprudence developed significantly since the decision in 2003. The maximum imprisonment term prescribed for the offence of forgery for the purpose of cheating increased from seven years to ten years since the decision. We also now know that there are different types of sentencing frameworks that cater to different types of offences, and that sentencing frameworks may not be suitable for all types of offences (see Terence Ng at [26] and [39]). Specifically, the High Court clarified that the “benchmark” approach would be suited for offences that manifested in a certain way, or where a particular form of offending was common and merited special attention (at Terence Ng at [32]). Yet, Lim Ek Kian did not precisely articulate the variant of forgery offences that was being referred to when pronouncing the benchmark sentence of 12 months in that case (PP v Vericker Michael Gunderson [2023] SLR(StC) 498 (“Vericker”) at [54]).

58     Second, as offences under s 468 of the PC present in a wide variety of ways, it could not be assumed that the Yong CJ’s observations in Lim Ek Kian regarding the 12-month benchmark was to apply across all types of forgery offences under s 468 of the PC. Lim Ek Kian itself involved a factual matrix that was entirely different from the facts of this case. In Lim Ek Kian, the offender forged signatures on a PARF/COE rebate transfer form and presented it to the Land Transport Authority (“LTA”), intending to deceive LTA into transferring one customer’s rebates to another. The offender, being a first offender, received a sentence of 12 months’ imprisonment for his offence under s 468 of the Penal Code (Cap 244), as his actions adversely affected public perception of the system of rebates transfer and of the car selling industry in general (Lim Ek Kian at [37]). As the Forgery Offence occurred in an entirely different context, the eventual sentence needed to be calibrated based on the facts. As the District Court aptly observed in Vericker, the “benchmark” is merely a starting point, not the end point. Accordingly, the benchmark in Lim Ek Kian could not be unthinkingly or strictly applied.

59     Similarly, the case of PP v Yong Wei Onn, Louis Paul [2021] SGDC 33 cited by the Defence could not be applied directly to this case, as the forgery offence in that case occurred in an entirely different context. In that case, Mr Yong forged a Notice of Assessment for Year of Assessment 2014, intending that the said document be used for the purpose of cheating Malayan Banking Berhad into approving a loan to Turntables and Solutions Pte Ltd. Two other charges under s 468 of the PC were taken into consideration in sentencing. Mr Yong, who was untraced, was sentenced to three months’ imprisonment.

60     In this case, Mr Lim benefited from the Forgery Offence whereas Mr Yong did not, as the loan was not disbursed. Notably, unlike Mr Yong, Mr Lim had a long record of property-related antecedents. Specifically, he was traced for an offence of forgery for the purpose of cheating under s 468 of the PC, for which he was convicted on 30 March 2022 and sentenced to three months’ imprisonment. The facts of his prior forgery offence were strikingly similar to that of the Forgery Offence. His prior forgery offence involved the forgery of a prescription memo which was intended for the purpose of cheating the triage staff and pharmacist at Ng Teng Fong Hospital to dispense five bottles of Procodin. However, the pharmacist discovered the forgery and did not dispense the requested bottles.

Appropriate sentence for offence of forgery for the purpose of cheating

61     In view of Mr Lim’s chequered history, the principle of escalation was engaged and an escalation in his sentences was warranted (PP v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”) at [57]–[60]). Bearing in mind the 12-month benchmark in Lim Ek Kian and the relevant factors below, and applying the full sentencing discount arising from his early indication of plea (Stage 1), I sentenced Mr Lim to six months’ imprisonment for the Forgery Offence:

Offence-specific factors:

(a)      Premeditation, planning and sophistication: Mr Lim committed the Forgery Offence with premeditation, planning and some degree of sophistication. He took a prescription memo which he previously obtained from Ng Beng Yeong Psych Medicine Clinic and made a realistic copy of it using a photocopier machine. He forged the prescription memo, handed the copy to the pharmacist, and was persistent in his deception, as he chose to further perpetuate the forgery by adding more details when the pharmacist pointed out certain missing details on the prescription. These factors were indicative of his high culpability.

(b)      Tangible Benefit: While the Defence rightly pointed out that Mr Lim did not gain any monetary profits from the Forgery Offence, the Defence overlooked the tangible benefit involved – Mr Lim successfully obtained prescription drugs without a valid prescription. While Mr Lim asserted that the prescription drugs were meant to treat his cough and Attention-Deficit Hyperactive Disorder (“ADHD”), he conceded that this was a bare assertion as he had no supporting evidence to show that he indeed suffered from cough and ADHD at the material time. As the Prosecution rightly pointed out, if Mr Lim suffered from any ailment, he ought to have consulted a doctor for it. Since he was previously convicted of a similar offence, he ought to have known that such medications could only be obtained through a doctor, and not in the way he did. I was therefore not convinced that Mr Lim obtained the drugs for the professed purpose.

(c)      High potential harm: While the Defence rightly pointed out that no actual loss was caused and no actual harm materialised, the Defence overlooked the high potential harm arising from the Forgery Offence. Unlike his prior offence of forgery whereby no medications were dispensed to him, Mr Lim obtained prescription-only medications, namely, 10 tablets of Ritalin and two bottles of Procodin syrup, without a prescription, by committing the Forgery Offence. These medications contained scheduled poisons, namely, codeine and methylphenidate, under the Poisons Act 1938, which could not be obtained without a valid prescription. If these medications fell into the wrong hands, the unregulated consumption of such medications could potentially endanger the life and safety of the consumer(s). Moreover, the Forgery Offence could have damaged the reputation of the pharmacist and the pharmacy and exposed them to the risks of investigation and prosecution.

Offender-specific factors:

(d)      Similar antecedents: Apart from his conviction for an offence under s 468 of the PC on 30 March 2022, Mr Lim gave his consent for four other forgery offences under s 468 of the PC to be taken into consideration in sentencing on that occasion. In addition, he was convicted of an offence of attempted cheating by personation in 2013 and was sentenced to four months’ imprisonment for that offence.

(e)      TIC charges: Two charges (DAC-905149-2024 and DAC-905150-2024) for forgery of two other prescription memos for the purpose of cheating were taken into consideration in sentencing. As the TIC charges also involved offences under s 468 of the PC, the effect of the TIC charges was to enhance the sentence for the Forgery Offence.

(f)      Re-offended whilst under investigation: Mr Lim committed the Forgery Offence whilst he was under investigation for other drug and traffic-related offences.

62     There were no mitigating facts that I could consider in Mr Lim’s favour. That said, I applied the full sentencing account attributable to his early indication of plea (Stage 1) to the sentence he would have received if he claimed trial, and sentenced him to six months’ imprisonment for the Forgery Offence.

Criminal trespass

63     Both parties agreed that a sentence of three- and six- weeks’ imprisonment should be imposed for the offences of criminal trespass committed on 28 February 2023 and 7 March 2023 (MAC-901358-2023 and MAC-907422-2023 respectively). Having considered the relevant factors pertaining to these offences and Mr Lim’s early indication of plea, I accepted parties’ submissions and imposed these sentences accordingly.

House-breaking

64     Mr Lim was convicted of an offence punishable under s 451 read with s 458A of the PC (DAC-904840-2023) (“the House-breaking Offence”). Under 451 of the PC, the offence of house-breaking shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to a fine. Further, pursuant to s 458A of the PC, Mr Lim “shall be liable to caning” as he was convicted of an offence under s 451 of the PC on 30 March 2022. The Prosecution, taking reference from the sentence of 11 months’ imprisonment imposed for Mr Lim’s prior housebreaking offence under s 451 of the PC (“the Prior House-breaking Offence”), submitted for a sentence of 16 months’ imprisonment and three stokes of the cane. The Defence, relying on the observations made in PP v Lim Wei Ho [2023] SGDC 152 (“Lim Wei Ho”), submitted for a sentence of 13 to 14 months’ imprisonment and objected to caning. While I agreed with the general sentencing considerations and sentencing factors identified by the learned District Judge in Lim Wei Ho, I was mindful that the sentence to be imposed would ultimately be dependent on the unique facts of each case, especially since a house-breaking offence could occur in a wide variety of ways.

Appropriate sentence for offence of house-breaking

65     Turning to the facts of this case, I arrived at the sentence of 16 months’ imprisonment for the House-breaking Offence, by applying the principle of escalation articulated in Low Ji Qing. Mr Lim was convicted of the Prior House-breaking Offence on 30 March 2022, for trespassing into a clinic at 3.36am and stealing 21 bottles of cough syrup worth S$231, without making any restitution for the loss. Yet, he re-offended on 28 March 2023 by committing the same offence. Both parties, in seeking sentences that were higher than that previously imposed in respect of the Prior House-breaking Offence, implicitly accepted that the principle of escalation was engaged.

66     I agreed with the Prosecution that a significant uplift from Mr Lim’s previous sentence of 11 months’ imprisonment was required. The previous sentence was clearly insufficient to deter him from re-offending. I also considered the following aggravating features:

Offence-specific factors:

(a)      Duration of the trespass: Mr Lim unlocked the main door, trespassed into the unit, and remained unlawfully in the unit for an extended period of over an hour. He also rummaged the items in the unit and left the unit in a state of disarray.

(b)      Timing of the offence: Mr Lim chose to trespass into the unit at 3.42am, under the cover of darkness. It could be surmised that he committed the House-breaking Offence at that time with a view to reducing the risk of detection.

(c)      Profit motive: Mr Lim stole material goods such as branded shoes and cash. The total value of the stolen goods was S$3,820. This was much higher than the value of cough syrup (S$231) stolen from the Prior House-breaking Offence. Based on the nature and value of the items stolen, I inferred that Mr Lim stole them with a profit motive.

(d)      Loss to the victim: Cash of S$250 belonging to the victim, Guan Xiaohui, was not recovered. No restitution was made.

Offender-specific factors

(e)      Antecedents: Apart from the Prior House-breaking Offence, Mr Lim had a lengthy record of property-related antecedents, including for dishonest misappropriation of property, theft, theft in dwelling and taking a motor vehicle without the owner’s consent.

(f)      Similar TIC charges: Two charges of dishonest misappropriation (MAC-907402-2023 and MAC-907403-2023), one charge of fraudulent possession (MAC-902659-2024) and one charge of theft (MAC-902660-2024) were taken into consideration in sentencing. The effect of these TIC charges was to enhance the sentence for the House-breaking Offence.

(g)      Reoffending whilst on court bail and during investigations: The House-breaking Offence was committed whilst Mr Lim was released on court bail This revealed his lack of remorse, which was an aggravating factor (Vasentha at [63]).

67     Given the escalation in criminality, a sentence higher than 11 months’ imprisonment was amply justified. Mr Lim argued for a lower sentence as he claimed the House-Breaking Offence was not pre-meditated or sophisticated, and no damage was caused. While I was prepared to accept that there was no evidence of pre-meditation, sophistication or damage, the absence of an aggravating factor did not ipso facto constitute a mitigating factor and thus could not be relied upon to gain a discount in sentencing (PP v AOM [2011] 2 SLR 1057 at [37]). Further, even though most of the stolen items were recovered, save for cash of S$250, credit could not be given to Mr Lim for the fortuitous recovery of the stolen items. Considering the aforesaid circumstances, and after applying the full sentencing discount attributable to his early indication of plea, I sentenced him to 16 months’ imprisonment for the House-breaking Offence.

Whether caning should be imposed

68     The novel issue before me was whether s 458A of the PC provided for mandatory or discretionary caning. Further, if caning was discretionary, the other issue was whether caning ought to be imposed. Both parties agreed during the hearing that s 458A of the PC provided for discretionary caning. However, after the sentence was passed and no caning was imposed, the case was re-mentioned. The Prosecution then argued that Parliament, by virtue of s 191(4) of the Criminal Law Reform Act 2019 (No. 15 of 2019) (“CLRA”), intended to provide for mandatory caning under s 458A of the PC. However, this argument was eventually retracted. In any event, having considered the issue, my conclusion was that s 458A of the PC did not provide for mandatory caning in this case.

69     To understand why s 458A of the PC did not provide for mandatory caning in this case, it is important to first understand the legislative history and context of the offence under s 451 and punishable under s 458A of the PC. This was helpfully set out in Lim Wei Ho at [20]–[26]. In gist, ss 144 to 155 and 191 of the CLRA came into force on 1 January 2022, bringing into effect a suite of updates to the offences of criminal trespass, house-trespass and house-breaking in the Penal Code (Cap 224, 2008 Rev Ed) (“PC Cap 224”) (“the legislative amendments”). Specifically, following the legislative amendments, the offence of house-trespass under s 454 of the PC Cap 224 was replaced by the offence of house-breaking under s 451 of the PC. Section 458A of the PC Cap 224 was also amended to the current version in s 458A of the PC. Section 153 of the CLRA and s 458A of the PC provide as follows:

CLRA

Amendment of section 458A [PC Cap 224]

153. Section 458A of the Penal Code [PC Cap 224] is amended –

[…]

(b) by deleting the words “section 454 or 457 shall be punished with” and substituting the words “section 449, 450, 451 or 452 shall be liable to”

Penal Code 1871

Punishment for subsequent offence under section 449, 450, 451, or 452

458A. Whoever, having been convicted of an offence under section 449, 450, 451 or 452, commits an offence under section 449, 450, 451 or 452 shall be liable to caning in addition to the punishment prescribed for that offence.

[Emphasis added]

70     Further, s 191(4) of the CLRA, which was invoked by the Prosecution, provides as follows:

Savings and transitional provisions

191. […]

(4) Where a person who is convicted on or after the date of commencement of section 153 of an offence under section 449, 450, 451 or 452 of the Penal Code which is committed on or after that date, has a prior conviction for an offence under the repealed section 454, 455, 457 or 458 of the Penal Code as in force immediately before that date, the person shall be punished with caning in addition to the punishment prescribed for section 449, 450, 451 or 452 of the Penal Code (as the case may be) because of section 458A of the Penal Code as amended by section 153.

[Emphasis added]

71     As a starting point, the words “shall be liable” in s 458A of the PC do not have any mandatory connotation and are generally viewed as conferring a discretion (Poh Boon Kiat v PP [2014] 4 SLR 892 at [36]). However, the interpretive exercise must be guided by the textual and legislative context of the provision (Sim Wen Yi Ernest v PP [2016] 5 SLR 207 at [52]), which, in this case, supported the plain interpretation that the punishment of caning prescribed under s 458A of the PC was discretionary and not mandatory. The legislative history showed that Parliament intended for s 458A of the PC to provide for discretionary caning even for repeat offenders, if they were convicted after the legislative amendments came into force on 1 January 2020.

72     In August 2018, the Penal Code Review Committee (“PCRC”) recommended, amongst other things, the re-labelling of “house-trespass” as “house-breaking”, a re-calibration of the punishment provisions for the various forms of house-breaking, and the inclusion of the requisite transitional provisions relating to s 458A of the PC Cap 224 (see the PCRC’s Report of August 2018 at pp 382–383). In making these recommendations, the PCRC envisaged that one of the effects of the legislative amendments was a removal of the mandatory minimum sentences prescribed under the PC Cap 224, including for caning (see the PCRC’s Report of August 2018 at p 382).

73     Thereafter, Parliament accepted the PCRC’s recommendations and effected the legislative amendments. Specifically, s 153(b) of the CLRA substituted the phrase “shall be punished with caning” in s 458A of the PC Cap 224 with the phrase “shall be liable to caning” in s 458A of the PC (see the provisions in the table below). The aforesaid developments indicated to me that parliamentary intent in effecting the legislative amendments was to substitute mandatory caning with discretionary caning.

Section 458A of the Penal Code (pre-amendment)

Section 458A of the PC (post-amendment)

Punishment for subsequent offence under section 454 or 457

458A.    Whoever, having been convicted of an offence under section 454, 455, 457 or 458, commits an offence under section 454 or 457 shall be punished with caning in addition to the punishment prescribed for that offence.

Punishment for subsequent offence under section 449, 450, 451 or 452

458A.  Whoever, having been convicted of an offence under section 449, 450, 451 or 452, commits an offence under section 449, 450, 451 or 452 shall be liable to caning in addition to the punishment prescribed for that offence.



74     Further, the text of s 191(4) of the CLRA supported the interpretation that Parliament did not intend for s 458A of the PC to provide for mandatory caning, if an offender was convicted after the legislative amendments. Parliament, in enacting s 191(4) of the CLRA, expressly provided for mandatory caning for repeat offenders with previous convictions under the repealed s 454, 455, 457 and 458 of the PC Cap 224 (“the First Group”), but not for repeat offenders with previous convictions under ss 449–452 of the PC (“the Second Group”). By the application of the maxim expressio unius est exclusion alterius, which means to express one thing is to exclude the other, Parliament, by choosing not to include the Second Group while expressly providing for mandatory caning for the First Group, intended to subject the Second Group to discretionary caning instead (Low Guang Hong David and others v Suryono Wino Goei [2012] 3 SLR 185 at [18]). As Mr Lim’s previous conviction was one under s 451 of the PC and not one under the repealed provisions, he belonged to the Second Group of offenders who faced discretionary caning, and not mandatory caning, under s 458A of the PC.

75     Having established that the Court had the discretion to decide whether to impose caning, I declined to impose caning because it was a severe measure that need not be deployed here. Caning is regarded as a form of punishment that is more serious and more to be feared than imprisonment (see Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 (“Frederick Chia”)). Where caning was discretionary, the general policy was that caning would not be imposed unless the offence was committed with substantial violence (Frederick Chia at [18]). Caning might be appropriate if the offence was particularly grave or egregious. For example, in Sia Ah Kew & Ors v PP [1974] 1 MLJ 125, the Court of Criminal Appeal found the sentence of caning to be appropriate where the offenders had committed an offence of kidnapping for ransom, by abducting the victim with pistols and a dagger.

76     The cases therefore showed that caning would be a significant step-up in the punishment scale and should not be lightly imposed. While there were several aggravating factors associated with the House-breaking Offence, the need for deterrence was amply met by the lengthy imprisonment term imposed. Moreover, Mr Lim did not use any violence at all or hurt any victims. The Prosecution did not point to any other compelling factors or precedents that demonstrated the need for caning, or to explain why the imprisonment term imposed was insufficient to meet the ends of deterrence. Hence, I declined to impose caning for the House-breaking Offence.

Issue 2: Whether the proposed disqualification periods were appropriate

77     A disqualification order serves to punish, protect the public and deter the offender (see Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 at [13] and Kwan Weiguang v PP [2022] 5 SLR 766 (“Kwan Weiguang”) at [59]–[62]). It takes effect above and beyond the primary sentence of an imprisonment term (Kwan Weiguang at [62]). It is regarded as “the most satisfactory penalty for most motoring offences” because an offender is reminded every day of his offence and the unwarranted risks which he had placed on ordinary members of the public (Kwan Weiguang at [62]). The hope is that through the imposition of a disqualification order, the offender will no longer be a menace on the roads. I had these objectives in mind when determining the period of the disqualification orders below.

S/N

Charge/ Date

Offence

Prosecution

Defence

Order

1.

DAC-903093-2024

10.07.2022

Driving under DQ

s 43(4)(a) p/u

s 67A(1) RTA & s 50T(1)(a) PA (i.e. First DQ Offence)

36 months’ DQ from date of conviction

24 months’ DQ from date of conviction

30 months’ DQ with effect from date of release

2.

DAC-903094-2024

10.07.2022

Driving without insurance

s 3(1) p/u s 3(2) r/w s 3(3) of the MVA & s 50T(1)(a) PA

36 months’ DQ from date of conviction

 

24 months’ DQ from date of conviction

24 months’ DQ with effect from date of conviction

3.

DAC-903095-2024

10.07.2022

Careless driving

s 65(1)(a) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) PA

36 months’ DQ from date of release

24 months’ DQ from date of

30 months’ DQ with effect from date of release

4.

DAC-903099-2024

 

09.09.2022

Driving under DQ

s 43(4)(a) p/u s 67A(1) of the RTA & s 50T(1)(a) PA (i.e. Second DQ Offence)

48-60 months’ DQ from date of conviction

30 months’ DQ

36 months’ DQ with effect from date of release

5.

DAC-903101-2024

09.09.2022

Inconsiderate driving

s 65(1)(b) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) PA

48-60 months’ DQ from date of release

36 months’ DQ

30 months’ DQ with effect from date of release

6.

DAC-903103-2024

09.09.2022

Failing to render assistance

s 84(7) p/u s 131(2)(b) of the RTA & s 50T PA

24 months’ DQ from date of conviction

 

12 months’ DQ

24 months’ DQ from the date of release



78     I was also guided by the observations in Muhammad Saiful bin Ismail v PP [2014] 2 SLR 1028 (“Saiful”) at [18], where the High Court observed, in the context of offences under s 43(4) of the RTA, that a disqualification period that was shorter than the original disqualification period would do little to deter future like-minded offenders. The High Court further observed at [20] that in most cases, a person who drove under disqualification should expect a period of disqualification that would be at least twice the original period, unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability. Conversely, where there were aggravating circumstances, the disqualification period might well be more than twice the original period (Saiful at [20]).

79     In my view, the general principles set out in Saiful applied equally to other situations whereby an offender who had previously committed traffic offences re-offended by committing the same type of traffic offence(s) or similar traffic offence(s). It only made sense that a longer disqualification period should be imposed for the fresh traffic offence(s), if the original disqualification period was insufficient to deter the offender from re-offending. The High Court in Kwan Weiguang at [69]–[71] similarly emphasised that a longer disqualification period might be warranted if aggravating factors were present, or if the past driving records revealed the offender to be an unsafe driver with a cavalier attitude towards road safety or an unwillingness to comply with the law.

80     In this case, the traffic offences that attracted a disqualification order stemmed from two accidents that occurred on 10 July 2022 and 9 September 2022 respectively. The circumstances of the offences and Mr Lim’s past records were relevant in determining the appropriate period of disqualification. Applying the principles above, in respect of the First DQ Offence and the Second DQ Offence (see s/n 1 and 4 in the table at [77] above), the period of the disqualification orders was fixed at 30 months and 36 months respectively. As Mr Lim was already subjected to a 12-month disqualification order before committing the present offences, the period of disqualification for the First DQ Offence and the Second DQ Offence should minimally be 24 months. However, due to the presence of aggravating factors, and as the Second DQ Offence was more egregious (see [20] and [21] above), the disqualification period were adjusted to 30 months and 36 months respectively.

81     In respect of the offence of driving without insurance (see s/n 2 in the table at [77] above), I note that Mr Lim was subjected to a 36-month disqualification order in 2006, and an 18-month disqualification order in 2002. As these antecedents were dated, I did not simply apply an uplift to those disqualification periods when determining the appropriate period of disqualification. Instead, I took reference from the longest period of disqualification imposed on 30 March 2022 (i.e., 12 months), and fixed the disqualification period at 24 months.

82     In respect of the Careless Driving Offence and Inconsiderate Driving Offence (see s/n 3 and 5 of the table at [77] above), I similarly took reference from the longest period of disqualification ordered on 30 March 2022 (i.e., 12 months) when determining the appropriate period of disqualification. The period of disqualification should minimally be 24 months, which would be double the period of disqualification ordered on 30 March 2022. In view of the aggravating factors (see [37]–[39] above), I applied a modest uplift to derive the period of 30 months’ disqualification for each offence.

83     In respect of Failing to Render Assistance Offence (see s/n 6 of the table at [77] above), the period of disqualification ordered was twice the length of the disqualification ordered on 30 March 2022 for a similar offence of failing to provide the driver’s particulars, punishable under s 84(7) and 131(2)(b) of the RTA. Since Mr Lim re-offended despite having been subjected to a 12-month disqualification order before, the disqualification period of 12 months evidently did not have sufficient deterrent effect. As such, the Defence’s proposed period of 12 months was not appropriate.

84     The Prosecution sought a disqualification period of 48 to 60 months for the Second DQ Offence and the Inconsiderate Driving Offence, without explaining why the disqualification period sought was four to five times the longest period of disqualification ordered on 30 March 2022. I therefore declined to accept the Prosecution’s submissions pertaining to the period of disqualification.

Issue 3: Whether the disqualification period should commence from the date of release or the date of conviction

85     Apart from the disqualification periods, another material issue was whether the disqualification orders imposed for the First DQ Offence, the Second DQ Offence, and the Failing to Render Assistance Offence should commence from the date of conviction or the date of release. The RTA does not provide for the date of commencement of the disqualification order for such offences. Both parties, relying on the decision in Saiful, submitted that the disqualification period should commence from the date of conviction.

86     To recapitulate, Mr Lim committed the First DQ Offence on 10 July 2022. He then committed the drug consumption offence on or before 31 August 2022. Thereafter, he committed the Second DQ Offence and the Failing to Render Assistance Offence on 9 September 2022. The chronology is therefore as follows:

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General principles pertaining to the date of commencement for DQ orders

87     The High Court in Saiful set down the following general principles pertaining to the commencement date of disqualification orders (Saiful at [39] and [46]):

(a)     Where an offender is sentenced to a disqualification order and an imprisonment term in respect of the same set of offences, the former should generally commence at the end of the period of imprisonment. This is because an overlap between a disqualification order and a concurrent term of imprisonment will undermine the penal effect of the disqualification order.

(b)     Where an offender is sentenced to a disqualification order and an imprisonment term, and the sentences arise out of separate and unconnected offences, then it may be appropriate to have the disqualification commence from the date of conviction, even if this results in an overlap with a period of imprisonment imposed for a separate and unconnected offence that is committed after the offence for which the disqualification is imposed (Saiful at [46(b)]).

88     In Saiful, the appellant committed the offence of riding a motorcycle under disqualification on 23 November 2012, and various drug offences four months later, on 23 March 2013. Menon CJ held that the disqualification order imposed for the traffic offence should commence from the date of the appellant’s conviction rather than from the date of release (Saiful at [39]–[47]). This was primarily because the appellant appeared to have been fortuitously charged and convicted of two unconnected series of offences at the same time, and would have been prejudiced by his decision to plead guilty if the disqualification order commenced from the date of release.

89     Conversely, if the appellant pleaded guilty to the traffic offence and subsequently contested his drug offences at a separate hearing, at least part of the period covered by the disqualification order for the traffic offence would have overlapped with the imprisonment term for the drug offences. In addition, ordering the disqualification to commence upon the appellant’s release from prison would have the unintended effect of incentivising attempts to delay the resolution of the non-traffic offences, and to expedite the resolution of the traffic offence, with a view to undercutting the penal effect of the disqualification order. Menon CJ therefore gave an order for the disqualification order of eight years to commence from the date of the appellant’s conviction, as it was untenable that the appellant should be worse off in having pleaded guilty to both sets of offences than he might well have been had he chosen to contest one set of charges (Saiful at [45]).

90     It is pertinent to note that Saiful was a case that was “a little out of the ordinary”. In Saiful, it was entirely possible for the traffic offence to be resolved in court first before the drug offences were dealt with. However, due to “an accident of timing”, or “what was essentially a matter of chance and timing”, the appellant was charged and convicted of the two unconnected series of offences at the same time (Saiful at [42]). The High Court’s decision in Saiful must be understood in that context. Notably, Saiful did not provide for an immutable rule for a disqualification order to commence from an offender’s date of conviction, whenever an offender was sentenced to a disqualification order and an imprisonment term, and the sentences arose out of separate and unconnected offences. As was evident from the decisions of Muhammad Ramzaan s/o Akhbar v PP [2023] SGHC 9 (“Ramzaan”) and PP v Muhamad Nor Afendi Bin Rusly [2024] SGDC 59 (“Afendi”), the courts would exercise their discretion to order the disqualification period to commence from the date of release in appropriate cases.

91     Ultimately, the court hearing each case has the discretion to decide, based on the unique facts presented and the individual offender in question, whether the disqualification should commence from the date of conviction or the date of release. As the learned District Judge aptly observed in Afendi at [21], sentencing jurisprudence had since developed such that “the court must be alive to the particular factual circumstances and must exercise its discretion in relation to the commencement date of the disqualification order, to achieve a proportionate outcome”. The imperative to achieve a proportionate outcome warranted an exercise of my discretion, to order the disqualification to commence from Mr Lim’s date of release. My reasons were as follows:

92     First, the High Court’s concerns in Saiful did not apply to this case, as Mr Lim was solely responsible for the circumstances that led to him being convicted of separate and unconnected offences at the same hearing. The upshot of Saiful was that an offender ought not be prejudiced, or put in a worse position, by matters of chance, including the time and sequence in which the offences were dealt with by the courts (Saiful at [42] and [47]). Mr Lim, having chosen to re-offend within two weeks of his release, and to re-offend every one to three months from 10 July 2022 to 30 March 2023, could not be said to be a victim of chance.

93     As Mr Lim re-offended in quick succession over an extended period, it was entirely conceivable that the Police and the Prosecution would require time to conduct investigations, finalise the charging position and deal with the matter globally. Specifically, as the First DQ Offence amounted to a breach of remission order, and the drug consumption offence was committed only slightly over a month after the First DQ Offence, it would be unrealistic to proceed on the basis that Mr Lim could have pleaded guilty to the First DQ Offence first. With the sheer number of charges, prosecutions for the unconnected offences would, as far as possible, have been conducted in the same hearing, as any other approach would have prejudiced Mr Lim by depriving him of the opportunity to seek a global plead-guilty offer and concurrent sentences.

94     In sum, Mr Lim authored his own fate by electing to act the way he did. His deliberate and persistent re-offending – not an accident of timing or a matter of chance – led to him being convicted and sentenced for his offences at the same hearing. This was unlike Saiful, whereby the drug offences took place some four months after the traffic offence, and the circumstances that led to the sentencing court having both the traffic offence and the drug offences before it “appeared to be fortuitous” (Saiful at [47]). As such, the approach in Saiful could not be applied strictly to this case.

95     Second, the general approach in Saiful should not apply because the need for deterrence featured more prominently in this case, as compared to Saiful. Mr Lim was a habitual and serial offender who committed three sets of traffic offences within a mere three months. The offences committed were also relatively egregious in nature. Despite having been convicted and sentenced for an astounding range of traffic violations, he had no qualms re-offending by committing offences of the same nature. He committed the First DQ Offence whilst under a remission order, within two weeks of his release from prison, and must have known that the First DQ Offence would attract an enhanced imprisonment term. He later committed the Second DQ Offence and the Failing to Render Assistance Offence about nine days after the drug consumption offence, and must have known that the drug offence was a serious offence that would attract a substantial period of imprisonment.

96     In Ramzaan at [22], the High Court observed that where an offender knew he had already committed an offence that might attract imprisonment, there must be a marginal disincentive to deter further offending that would likely attract a disqualification order (see also Saiful at [49]). If periods of disqualification for such offenders always ran concurrently with their existing imprisonment sentences, there would be no marginal disincentive for offenders facing lengthy imprisonment terms not to commit further driving offences. As such, maintaining the penal effect of the DQ order should take precedence in order to preserve deterrence (Ramzaan at [23]). The same principles applied to the traffic offences here.

97     For the reasons above, I ordered the disqualification period for the First DQ Offence, the Second DQ Offence and the Failing to Render Assistance Offence to commence from the date of Mr Lim’s release from prison.

Issue 4: Whether the maximum enhanced sentence should be imposed pursuant to s 50T of the Prisons Act 1933

98     Mr Lim was liable for enhanced punishment under s 50T(1)(a) of the PA for 22 of the 29 offences for which he was charged, and nine of the 12 charges he pleaded guilty to. Both parties rightly identified Abdul Mutalib bin Aziman v PP and other appeals [2021] 4 SLR 1220 (“Abdul Mutalib”) as the decision that laid down the sentencing framework for determining enhanced sentences under s 50T(1)(a) of the PA. However, after applying this framework, the Prosecution submitted for a sentence of 230 days, whereas the Defence submitted for an enhanced sentence of 120 days.

99     Applying the framework in Abdul Mutalib, I first considered the gravity of the fresh offences committed, in order of the most serious to the least serious of the fresh offences (Abdul Mutalib at [78]):

(a)     The drug consumption offence was the most serious offence. Mr Lim consumed methamphetamine after committing a spate of traffic offences on 10 July 2022 and 29 August 2022, and within a mere three months after his release on the remission order (Abdul Mutalib at [58]). Even after he was arrested for the drug consumption offence, he consumed controlled drugs again on or before 9 March 2023, and committed a string of other serious property-related offences and traffic offences. Most of the offences were committed while he was already under investigation for his earlier offences or while he was on court bail. His persistent recalcitrance was indicative of his complete lack of commitment to rehabilitation. Based on the gravity of the drug offence and Mr Lim’s lack of rehabilitative prosects, the breach arising from the drug consumption offence was moderate and fell within the upper end of Band 2 or around two-third of the remaining duration of the remission order (178 days). The enhanced sentence imposed was therefore 118 days (2/3 x 178 days).

(b)     On the gravity scale, the Forgery Offence was also a serious offence but not as serious as the drug consumption offence. The facts of the Forgery Offence were similar to Mr Lim’s previous forgery offence. His prior and current forgery offences both involved him forging documents to obtain prescription-only medications. The similarities in the offending conduct were indicative of his poor rehabilitative capacity (Abdul Mutalib at [59]). For these reasons, the breach arising from the Forgery Offence fell within the mid-point of Band 2 or around half of the remaining duration of the remission order (107 days). The enhanced sentence imposed was therefore 53 days (1/2 x 107 days).

(c)     The Second DQ Offence committed on 9 September 2022 was the next serious offence. This offence arose from the accident on 9 September 2022, after Mr Lim was arrested for the drug consumption offence and investigated for the traffic-related offences on 10 July 2022 and 29 August 2022. The Second DQ Offence was therefore of moderate gravity. Coupled with the obvious lack of rehabilitative prospects, the severity of the Second DQ Offence was assessed to be at the lower end of Band 2 or around 40% of the remaining duration of the remission order at the time of the offence (169 days). This worked out to be an enhanced sentence of 67 days. However, as the cumulative enhanced sentence to be imposed under s 50T(1)(a) of the PA must not exceed the remaining duration of the remission order at the time of Mr Lim’s earliest offence, i.e. 230 days, the sentence must be calibrated downwards to 59 days.

100    As the maximum duration of the enhanced sentence that could be imposed was reached, I did not separately consider each of the remaining proceeded charges that attracted enhanced sentences (Abdul Mutalib at [78]). Instead, as a final step, I took a “last look” at all the facts and circumstances of the case and assessed that the maximum enhanced sentence of 230 days was fair and appropriate, given the gravity of Mr Lim’s offending conduct and his poor rehabilitative capacity as described above. Hence, further adjustments to the enhanced sentences were not necessary.

Issue 5: Whether the aggregate sentence was consistent with the one-transaction rule and the totality principle

101    Both parties agreed that six sentences should be ordered to run consecutively but differed in their selection of the consecutive sentences. Having considered the parties’ submissions and all relevant facts, I ordered the sentences for four offences to run consecutively, as the four offences – the drug consumption offence, the Second DQ Offence, the Forgery Offence and the House-breaking Offence – involved unrelated offences that invaded distinct legally protected interests and could not be characterised as being part of the same transaction. Sentences for the unrelated offences should generally be ordered to run consecutively (PP v Raveen Balakrishnan [2018] 5 SLR 799), and both parties did not raise any facts that warranted a departure from the general position.

102    Further, given the sheer number and type of offences Mr Lim committed since he was released, his extensive list of similar antecedents and the absence of compelling mitigating factors, the aggregate sentence of one year, 24 months and 10 weeks’ imprisonment (i.e. three years and 10 weeks), plus the enhanced sentence of 230 days and the 36-month disqualification order that commenced from the date of release, could not be said to be crushing. Such a sentence was necessary and proportionate to his overall criminality. As Mr Lim could not be deterred despite having served a global sentence of two years after his conviction on 30 March 2022, a longer imprisonment term was required to effectively deter him from re-offending. Having taken a “last look” at all the facts and circumstances, I was satisfied that the aggregate sentence was in keeping with the one-transaction rule and the totality principle.

Conclusion

103    The sentences imposed in this case were meant to set Mr Lim on the straight and narrow path, and to firmly deter him from falling into dark abyss of crime. Yet the sentences were also tempered by leniency and proportionality, with the hope that Mr Lim would turn his life around, stop his offending streak and reunite with his family at the earliest opportunity. If Mr Lim persists in his criminal ways and fails to do right by the law, the same measure of leniency may not be shown to him in future, and he may be made to bear the full weight of the law.

"},{"tags":["Criminal Law – Offences – Sexual offences – Outrage of modesty","Criminal Law – Offences – Voluntarily causing hurt – Customs offences","Criminal Procedure and Sentencing – Sentencing – Multiple offences – Forms of punishment – Corrective training"],"date":"2024-11-05","court":"District Court","case-number":"District Arrest Case No 909726 of 2021 and others","title":"Public Prosecutor v Toh Lam Seng","citation":"[2024] SGDC 285","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32432-SSP.xml","counsel":["Sarah Siaw (Attorney-General's Chambers) and Woo Jia Min (Singapore Customs) for the Prosecution","Chooi Jing Yen and Chen Yongxin (Law Society Pro Bono Services, CLAS) for the Defence"],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Janet Wang","html":"Public Prosecutor v Toh Lam Seng

Public Prosecutor v Toh Lam Seng
[2024] SGDC 285

Case Number:District Arrest Case No 909726 of 2021 and others
Decision Date:05 November 2024
Tribunal/Court:District Court
Coram: Janet Wang
Counsel Name(s): Sarah Siaw (Attorney-General's Chambers) and Woo Jia Min (Singapore Customs) for the Prosecution; Chooi Jing Yen and Chen Yongxin (Law Society Pro Bono Services, CLAS) for the Defence
Parties: Public Prosecutor — Toh Lam Seng

Criminal Law – Offences – Sexual offences – Outrage of modesty

Criminal Law – Offences – Voluntarily causing hurt – Customs offences

Criminal Procedure and Sentencing – Sentencing – Multiple offences – Forms of punishment – Corrective training

5 November 2024

Judgment reserved.

District Judge Janet Wang:

Introduction

1       The accused, a 54-year old male Singaporean, was convicted upon the conclusion of a trial before me on a charge under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) for an offence of outrage of modesty involving a female victim below 14 years of age. My grounds of decision on the order of conviction can be found in Public Prosecutor v Toh Lam Seng [2023] SGDC 294 (“GD”).

2       Upon his conviction after trial on the charge of outrage of modesty, the accused pleaded guilty to one charge each of voluntarily causing hurt (DAC-917902-2023) and storing uncustomed tobacco products, namely, duty unpaid cigarettes (DAC-909191-2023). These offences were committed during his trial for the outrage of modesty offence, and while he was on bail. The charges are set out as follows:

DAC-917902-2023

You are charged that you, on 24 September 2022 sometime after 8pm, at location Y, Singapore, did voluntarily cause hurt to Chin Fong Yoke (female / 51 years old), to wit, by punching her head, slapping her face and pulling her hair, intending to cause her hurt and thereby causing her abrasions and bleeding on her face, and you have thereby committed an offence punishable under section 323 of the Penal Code 1871.

DAC-909191-2023

You are charged that you, on the 15th day of June 2023, at about 10.42 p.m., inside unit X of Block 6 Marsiling Drive, Singapore, did store uncustomed goods, to wit, 197 cartons x 200 sticks, 4 packets x 20 sticks and 55 sticks of assorted brands of duty unpaid cigarettes weighing 36.300 kilogrammes, on which excise duty of $19,419.05 was not paid, and you have thereby, committed an offence under Section 128I(1)(a)(ii) of the Customs Act 1960 punishable under section 128L(4) of the same Act

The accused further consented to be taken into consideration a charge under section 128I(1)(a)(ii) of the Customs Act 1960, namely, DAC-909192-2023, for the offence of storing duty unpaid cigarettes on which the Goods and Services tax was not paid.

3       The accused was assessed and found suitable for corrective training and preventive detention.[note: 1]

4       I impose a sentence of five years’ corrective training and set out my reasons below.

Punishment prescribed by law

5       For an offence of aggravated outrage of modesty under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed), the accused shall be punished with an imprisonment term not exceeding 5 years, or with fine, or with caning, or with any combination of such punishments.

6       The accused is liable to be punished with a maximum imprisonment term of 3 years, or a fine not exceeding $5000, for committing the offence of voluntarily causing hurt under s 323 of the Penal Code 1871.

7       For the offence of storing uncustomed goods consisting of tobacco products exceeding 2 kilogrammes in weight under s 128I(1)(ii) of the Customs Act 1960, the accused is liable on conviction to a fine of not less than 15 times the amount of the customs duty, excise duty or tax the payment of which would have been evaded by the commission of the offence, subject to a minimum of $1,000, and not more than 20 times the amount of the customs duty, excise duty or tax the payment of which would have been so evaded or $10,000, whichever is the greater amount, or to imprisonment for a term not exceeding 3 years, or to both.

Antecedents

8       The accused has numerous antecedents.[note: 2] As these are of significant relevance in determining the appropriate sentence, the antecedents are reproduced below:

Date of conviction

Charge(s)

Sentence

9 April 1987

Theft in dwelling under s 380 of the Penal Code

1- year probation

4 May 1989

Robbery with common intention under s 392 read with s 34 of the Penal Code

Reformative training

30 November 1989

Theft under s 379 of the Penal Code – (two charges)

Reformative training

12 June 1992

Rioting under s 147 of the Penal Code

6 months’ imprisonment

3 July 1992

Drug possession under s 8(a) of the Misuse of Drugs Act (three charges)

Fine of $2000 each (paid in full)

24 May 1993

i)Voluntarily causing hurt by dangerous weapons or means under s 324 of the Penal Code

ii) Voluntarily causing hurt by dangerous weapons or means

9 months’ imprisonment

6 months’ imprisonment

21 September 1993

i) Robbery under s 392 of the Penal Code

ii) Snatch theft under s 356 of the Penal Code

iii) Voluntarily causing hurt under s 323 of the Penal Code

(one charge taken into consideration)

42 months’ imprisonment and 12 strokes of the cane

18 months’ imprisonment

2 months’ imprisonment

26 May 1997

Detention order under s 30(a) of the Criminal Law (Temporary Provisions) Act

4 February 2003

Voluntarily causing hurt under s 323 of the Penal Code

12 month’s imprisonment

3 September 2003

Affray under s160 of the Penal Code

1-year imprisonment

1 February 2007

Rape under s 376(1) of the Penal Code

16 months’ imprisonment and 10 strokes of the cane

1 April 2008

Carnal connection with a female below 16 years of age under s 140(1)(i) of the Women’s Charter – (two charges proceeded with and another two charges taken into consideration.)

2 years and 6 months’ imprisonment on each proceeded charge



Summary of Facts [note: 3]

9       The accused pleaded guilty to the Statement of Facts in respect of each proceeded charge unreservedly. A summary of the salient facts are as follows:

S 323 Penal Code charge (DAC-917902-2023) (“VCH”)

10     According to the Statement of Facts to which the accused pleaded guilty unreservedly, the accused assaulted the victim by the punching her face and causing her nose to bleed. He also pulled the victim’s hair and slapped her face several times. The victim was regular visitor to the accused pet shop where she was given free items by the latter and his wife on several occasions.

11     The offence occurred on 24 September 2022 at the pet shop belonging to the accused and his wife. At the material time, the trial against the accused involving the outrage of modesty offence which took place in the same pet shop was ongoing.

12     The victim had visited the pet shop to request for free cat food. The accused rejected her request and chased her out of the pet shop. Angered by the accused, the victim scolded and called the accused a rapist. At the material time, she was aware of the accused person’s prior conviction for the offence of rape. The victim’s actions angered the accused.

13     Subsequently on the evening of the same day, the victim returned to the pet shop where she saw the accused seated and smoking outside the shop with his friends. As she was still reeling from anger at the accused, the victim started to scold the accused and told him how she despised him. She also called him a rapist. The accused approached the victim and assaulted her. He pulled her towards the shop and told his wife to call the police. The victim fell to the floor as the accused was pulling her. However, the accused persisted and continued to drag her towards the pet shop, before he finally released his grasp and watched over the victim before the police arrived.

14     The victim was observed to be bleeding on her face and sustained scratches on her hands immediately after the assault. On medical examination, she was noted to have abrasions on her right knee and right chin. According to the examining resident physician at Woodlands polyclinic, the victim described having flashbacks of the assault and nightmares due to the incident. The clinical assessment was one of alleged assault with acute stress reaction. The victim was referred to the Institute of Mental Health Psychiatry department for follow-up treatment regarding her acute stress reaction and awarded medical leave of one day.

S 128I(1)(a)(ii) Customs Act charge (DAC-909191-2023) (“Customs”)

15     In early 2023, the accused bought duty unpaid cigarettes from a peddler, Ah Di, in Marsiling. He agreed to help Ah Di store these cigarettes in the residential unit of his girlfriend and co-accused, Wang Sze Ming (“Wang”). Through Ah Di, the accused became acquainted with an unknown Chinese female, Da Jie, who coordinated illicit cigarette activities in Singapore. The accused knew and assisted Da Jie in the collection and delivery of duty unpaid cigarettes. Upon notification of the arrival of the uncustomed goods, the accused collected these at the void deck of Wang’s unit and stored these in the unit. The accused also assisted Da Jie to repack the duty unpaid cigarettes into smaller quantities for her delivery man for collection and delivery to her customers. The accused was provided with the delivery details to facilitate his repacking of the tobacco products. On some occasions, the accused assisted in the delivery of the uncustomed goods and the collection of the sale proceeds. In return, he was paid an amount in the range of $20 to $30. The accused retained some of the duty unpaid cigarettes for personal consumption and for sale. Wang assisted the accused to deliver and sell some of the uncustomed goods on a few occasions.

16     On 15 June 2023, the accused and Wang were arrested in the unit with duty unpaid cigarettes that weighed a total of 36.300 kg with an excise duty of $19,419.05.

Prosecution’s submissions on sentence

17     The prosecution seeks a minimum term of seven years’ preventive detention.[note: 4]

18     In support of its submissions, the prosecution highlights the recalcitrance of the accused despite having undergone a substantial period of incarceration for 18 years and 6 months of imprisonment.[note: 5] According to the prosecution, the facts suggested that the accused is not inclined to reform or rehabilitation. The prosecution argues that the protection of the public is the foremost consideration, given that rehabilitation is not a realistic prospect, and maintains that preventive detention is to be preferred over corrective training.[note: 6]

Defence submissions on sentence and mitigation plea

19     The defence proposes a sentence of not more than 21 months’ imprisonment on all the charges. The global sentence includes an individual imprisonment term not exceeding 16 months in respect of the outrage of modesty charge, one not exceeding one-month imprisonment for the offence charge of voluntarily causing hurt, and an imprisonment term not in excess of four months with regard to the customs charge.[note: 7]

The appropriate sentence

Deterrence as the dominant sentencing consideration

20     Deterrence was the dominant sentencing consideration in the present case. The following relevant factors, among other non-exhaustive factors, as identified in PP v Law Aik Meng [2007] 2 SLR (R) 814 at [24] - [25], would attract the sentencing principle of general deterrence:

(i)     Offences affecting public safety and security;

(ii)     Offences leading to public disquiet; and

(iii)     Difficulty of detection

These factors were demonstrably present. The present offence was committed against a young and vulnerable member of the public in a pet shop located within the precinct of public housing. The victim was a customer at the pet shop where the accused was working at the material time. The accused perpetrated the offence against the victim in an insidious manner, namely, in the pet shop when no customers were present, to avoid detection. Alongside the public disquiet and unease engendered, these factors clearly attract deterrence as a key sentencing consideration.

Application of the framework in Sim Yeow Kee

21     The sentencing framework established in Sim Yeow Kee v Public Prosecutor and another appeal [2016] 5 SLR 936 (“Sim Yeow Kee”) is useful when considering cases involving corrective training. Similarly, the framework can be applied to preventive detention: see Ow Gan Wee v Public Prosecutor [2023] SGHC 135 at [4].

22     The technical requirements for both corrective training and preventive detention are met in the present case in the first stage of Sim Yeow Kee. These requirements are found in s 304(1) and s 304(2) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”).

(1)    Where a person of 18 years of age or above —

(a)    is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least twice since he or she reached 16 years of age for offences punishable with such a sentence; or

(b)    is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient with a view to the person’s reformation and the prevention of crime that the person should receive training of a corrective character for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to corrective training for a period of 5 to 14 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

(2)    Where a person 30 years of age or above —

(a)    is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least 3 times since he or she reached 16 years of age for offences punishable with such a sentence, and was on at least 2 of those occasions sentenced to imprisonment or corrective training; or

(b)    is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient for the protection of the public that the person should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to preventive detention for a period of 7 to 20 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

23     I next consider whether it is expedient to sentence the accused to CT with a view to his reformation and prevention of crime. In respect of whether it is expedient to sentence the accused to PD in order to protect the public, the same considerations would apply.

24     In respect of the likely imprisonment term that would be imposed for the index offences. I am mindful of the sustained pattern of offending conduct presented by the accused, given his history of similar antecedents. While the present set of offences are less serious in nature in comparison with those involved in his prior antecedents, the present offences must be viewed in the context of the repeated nature of the accused’s offending. The principle of escalation would warrant a longer term of incarceration to fulfill the needs of both general and specific deterrence. Equally aggravating is the fact that the accused had committed the offences that he pleaded guilty to while he was released on bail and during his trial for the offence of outrage of modesty.

The likely imprisonment term

S 354(2) Penal Code charge (DAC-909726-2021)

25     The case of GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”) provides guidance in the sentencing of offences under s 354(2) of the Penal Code. The High Court in GBR established a sentencing framework involving the consideration of offence-specific aggravating factors to determine the gravity of the offence before emplacing the offence within an appropriate band of imprisonment. These factors include the degree of sexual exploitation, the circumstances of the offence and the harm caused to the victim.[note: 8] Having ascertained the gravity of the offence, the court must determine precisely where the offender’s conduct falls in the three sentencing bands as follows (GBR at [31]-[37]):

Band 1: less than one year’s imprisonment

This applies to cases at the lowest end of the spectrum of seriousness where no intrusion of the victim’s private parts is involved. Typically, this category of cases involve a fleeting touch or touch over the victim’s clothes and caning is generally not imposed.

Band 2: one to three years’ imprisonment

Cases involving two or more of the aggravating factors will fall within this band and usually attract caning of at least three strokes.

Band 3: three to five years’ imprisonment

Cases involving the most serious instances of aggravated outrage of modesty where such aggravating factors as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim, are present. As a starting point, caning of at least six strokes ought to be imposed.

26     The next stage of the framework entails having regard to the general aggravating and mitigating factors that are specific to the offender. These include the number of charges taken into consideration, the lack of remorse, relevant antecedents demonstrating recalcitrance, a timeous plea of guilt or the presence of a mental disorder or intellectual disability.[note: 9] Other considerations where the offender is certified to be unfit for caning by virtue of his age being 50 years and above at the time of the caning or medical reasons, are equally relevant.[note: 10] In addition to imprisonment, caning should be imposed to adequately meet the needs of deterrence as warranted by the factual circumstances, particularly where there is intrusion of the victim’s private parts or sexual organs.[note: 11]

27     Applying the framework to the present case, I consider the offence-specific aggravating factors. While there is no finding of skin-to-skin contact with the victim’s private parts, the degree of sexual exploitation was considerable. The manner and extent of how the accused touched the victim were by no means fleeting. His sexual exploitation of the victim was sustained and involved contact with numerous areas of the victim’s body including her left shoulder, her left arm, the top of her chest, her breasts, her stomach, the side of her body at the waist, her left thigh and left inner thigh (GD at [17]-[20]). The touching of her breasts occurred over the victim’s clothes.

28     Pertinently, the victim suffered psychologically. During the molestation, the victim was in shock and “froze” (GD at [21]). After the incident, she felt highly anxious and troubled. She was fearful of going to school on her own. Her sleep and studies were also affected (GD at [38]-[39]). As observed by Dr Woo, the victim displayed distress, anxiety, sadness and fear immediately after the incident and experienced flashbacks and recurrent thoughts and nightmares of the event, in addition to being easily startled (GD at [112]-[113]). According to Dr Woo, these were symptomatic of post-traumatic stress disorder (GD at [256]-[257]). The psychological harm caused to the victim is a relevant aggravating factor.

29     Equally aggravating is the degree of premeditation on the part of the accused as shown by the manner in which he capitalised on the victim’s concern for her pet hamster and her fondness of hamsters. The victim was a regular customer at the pet shop. She described the accused as kind because he allowed her to play with the hamsters in the pet shop (GD at [11] and 93]). It is evident that the victim had developed trust in the accused when she brought her hamster to the pet shop to consult him on its skin condition. Notably, there is an abuse of his position of trust as a shop keeper towards the customer.

30     It was the victim’s evidence that she chose to go to school immediately after the incident instead of going home to inform her mother because she was afraid that her mother would not believe her (GD at [26] and [71]). The victim described that it was difficult for her to see her mother’s face after what had happened (GD at [32]). As recognised by the court in GBR, the fear and reluctance of victims to share their ordeals with family members underscore the real concern that the courts have over the difficulty of detection of such cases. Accordingly, “general deterrence must feature prominently in the sentencing equation” (GBR at [42]).

31     Applying the first stage of the GBR framework, the totality of the offence-specific aggravating factors brings the case within Band 2, at an indicative starting point of 20 months’ imprisonment. Given that caning will nearly always be imposed, the suggested starting point would have been three strokes of the cane (GBR at [33]). However, the accused, by reason of his age of 54 years, is statutorily exempted from caning.

General aggravating and mitigating factors

32     Turning next to the general aggravating and mitigating factors, the accused is not eligible for any sentencing discount that would have been accorded to a guilty plea, having claimed trial to the charge of outrage of modesty. The accused showed not an iota of remorse for his conduct as he sought to portray the victim in negative light by casting aspersions on her character (GD at [348]-[349]).

33     Relevant antecedents demonstrating recalcitrance are the accused person’s convictions for rape and carnal connection offences in 2007 and 2008 respectively. These involved young and adolescent female victims. The common thread running through these antecedents and the present case is that the offences revolved around the accused person’s pet shop.

34     For the rape conviction, the accused was convicted and sentenced to 16 years’ imprisonment and 10 strokes of the cane at the conclusion of a trial on a rape charge involving a 14-year old female victim: see Public Prosecutor v Toh Lam Seng [2007] SGHC 95.[note: 12] As highlighted by the prosecution, the facts mirrored those of the present case.[note: 13] The accused had befriended the victim among a group of school attending children who frequently gathered at his pet shop. The accused cultivated the goodwill and trust of the children by gestures of offering treats and being a peacemaker in their disputes. The accused made advances towards the victim but was rejected. He subsequently forced himself upon her and raped her on a hillock. The accused used violence on the victim. A few days after the rape incident, the accused brought the victim to a basement carpark where he applied force on her by pushing her against the wall and attempted to sexually assault her again. His attempt was thwarted by the arrival of the victim’s friends. The defence mounted by the accused at the trial was one of denial.

35     In respect of the carnal connection offences, the accused committed these against a 15-year old girl on four occasions in December 2005 and about three months prior to the rape offence on 18 March 2006. The victim knew the accused through her peers who met him at his pet shop. The victim developed trust in the accused after confiding in him. The accused assured the victim and offered to help her when she needed. Subsequently, the accused brought the victim to a park and made sexual advances towards her, which were rejected. However, the accused persisted and engaged in sexual intercourse with the victim. After the act of sexual intercourse, the accused gave the victim a puppy from his pet shop. The second incident took place shortly after this, where the accused drove the victim to a field to play with the puppy and had sexual intercourse with her inside the van.[note: 14]

36     The prosecution further highlighted that the accused committed the present offence of outrage of modesty in less than two years after his release from prisons on 13 August 2018, upon serving his sentence for the sexual offences. The accused reoffended in June 2020. This was after he befriended the victim who visited his pet shop sometime in 2019.[note: 15]

37     These antecedents bear striking similarities to the present offence. The accused denied the commission of the rape offence and the present outrage of modesty offence at both trials. His modus operandi of targeting young and adolescent female victims and gaining their trust under the guise of friendship and affability is the common thread running through all his sexual offences, past and present. These antecedents also reveal the accused person’s propensity towards violence.

38     In light of his similar antecedents, the principle of escalation will apply to justify a longer imprisonment term to be imposed on such a persistent offender as the accused (see Sim Yeow Kee at [99] citing Tay Kay Beng v PP [2006] 4 SLR(R) 10 at [14]). The courts have recognised the significance of escalating the subsequent sentence for an offender who has already committed the same sort of offence in order to specifically deter him from committing further offences of that nature (see PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR (R) 334 at [43] and PP v Ng Bee Ling Lana [1992] 1 SLR(R) 448 at [13], cited in Sim Yeow Kee at [99] ). Given the accused sustained pattern of criminal conduct involving adolescent female victims, I agree with the prosecution that specific deterrence justifies a significant uplift in the present sentence.[note: 16]

39     Equally relevant is that the present offence was committed barely two years after the accused person’s release from imprisonment for the rape and carnal connection offences. This pointed towards an utter lack of contrition and remorse for his wrongdoing. His level of culpability is heightened by this offender-related aggravating factor (GBR at [39]).

Imposition of imprisonment in lieu of caning

40     At 54 years of age, the accused is certified unfit for caning (s 325(1)(b) of the Criminal Procedure Code 2010 (“CPC”)). The court is empowered to enhance the imprisonment term by up to a maximum term of 12 months in lieu of caning (s 325(2) of the CPC). I next consider whether such an enhancement is warranted in the present case. The High Court case of Amin bin Abdullah v Public Prosecutor [2017] 5 SLR 904 (“Amin bin Abdullah”) held that an imprisonment term in lieu of caning may be appropriate in such an offence as outrage of modesty, where there is the need for a sufficiently deterrent and retributive sentence (at [73]).

41     The present case involved an exploitation of a vulnerable class of victims, namely, a minor under the age of 14. This is a substantial aggravating factor that warrants the need to maintain deterrence and achieve due retribution, both of which are the dominant sentencing principles behind the imposition of caning. The offence of outrage of modesty committed against a minor under the age of 14 is especially reprehensible and an additional term of imprisonment is necessary to compensate the lost deterrent and retributive effects of caning due to the exemption.

42     In Public Prosecutor v Tan Kok Leong [2017] SGHC 188, the High Court noted that the benchmark sentences for offences under s 354 of the Penal Code involving intrusion of the victim’s private parts or sexual organs is nine months’ imprisonment and three strokes of the cane. In enhancing the sentence of the offender, who was a medical professional above 50 years of age, for the charges under s 354(1) of the Penal Code by two months per charge, the High Court saw the need for a sufficiently deterrent and retributive sentence to address the aggravating factor of abuse of trust by virtue of the offenders having taken advantage of their professional positions to commit the offences (at [89]-[91]).

43     Taking further guidance from Amin bin Abdullah at [90], where the High Court provided the following indicative guidelines in the calibration of extent of the enhancement, namely: (a) one to six strokes avoided: up to three months’ imprisonment; (b) seven to 12 strokes avoided: three to six months’ imprisonment; (c) 13 to 18 strokes avoided: six to nine months’ imprisonment; and (d) more than 19 strokes avoided: nine to 12 months’ imprisonment, I consider an enhancement of two months’ imprisonment in lieu of three strokes of the cane to be appropriate.

44     I next address the mitigating factors. In my view, there are none. The accused did not enter a timeous plea of guilt. He claimed trial to the present charge and the victim was made to revisit the traumatic episode. Notwithstanding his conviction, the accused continues to deny the commission of the offence.

45     Having regard to the totality of the aggravating factors presented, I am of the view that the accused conduct would fall within the upper range of Band 2, with a sentence of 32 months’ imprisonment.

S 323 Penal Code charge (DAC-917902-2023) (“VCH charge”)

46     The case of Niranjan s/o Muthupalani v Public Prosecutor [2024] 3 SLR 834 (“Niranjan”) is instructive in setting out the sentencing framework for offences of such a genre, which is premised on the existing framework set out by the High Court in Low Song Chye v Public Prosecutor and another appeal [2019] 5 SLR 526 (“Low Song Chye”). In Niranjan, the court revised the sentencing framework to apply to offenders claiming trial in the interests of greater clarity and consistency in sentencing, and to reduce the risks of future potential misapplication of the framework (at [62]). Of direct relevance is the sentencing range for offences which were committed after 1 January 2020 involving first offenders pleading guilty.[note: 17] This is set out as follows:

Band

Hurt caused

Sentencing range under the modified Low Seng Chye framework (first-time offenders who pleading guilty)

1

Low harm: no visible injury or minor such as bruises, scratches, minor lacerations or abrasions

Fines or custodial term up to six weeks’ imprisonment

2

Moderate harm: hurt resulting in short hospitalisation or a substantial period of medical leave,

Between six weeks’ and nine months’ imprisonment

3

Serious harm: serious injuries which are permanent in nature and/or which necessitate significant surgical procedures

Between nine months’ and 36 months’ imprisonment



47     In applying the two-stage inquiry under the Low Song Chye framework, I first determine the harm caused to the victim to fall within Band 1 of the modified indicative sentencing range. On examination, the injuries sustained by the victim were abrasions of her right knee and over her right chin, measuring 1 cm by 1 cm. Apart from physical harm, the victim suffered psychological harm. She experienced flashbacks of the assault and nightmares. She was diagnosed to be suffering from acute stress reaction to the assault by the accused.[note: 18] The victim was treated conservatively with symptomatic medication for her pain and referred to Institute of Mental Health for her condition of acute stress reaction. An appropriate indicative starting sentence ought to be one-month imprisonment.

48     At the second stage, I consider the following relevant factors as identified in Public Prosecutor v BDB [2018] 1SLR 27 (“BDB”) at [62]-[70] and [71]-[75], and reaffirmed in Niranjan at [66]-[67]. These are aggravating factors involving the extent to which of deliberation or premeditation, the manner and duration of the attack, the victim’s vulnerability, the use of any weapon, whether the attack was undertaken by a group, any relevant antecedents on the offender’s part, and any prior intervention by the authorities. Mitigating factors include the offender’s mental condition, genuine remorse and personal financial or social problems.

49     The accused has a chequered history of violence related antecedents. These spanned a period of over 30 years from 1992. These included the use of force in the course of rioting, voluntarily causing hurt using dangerous weapons or means, voluntarily causing hurt and affray. The accused was sentenced to imprisonment for his commission of these offences. Specific deterrence warrants an enhanced imprisonment term to be imposed, given the accused marked proclivity towards criminal offending (see Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”)).

50     Of his similar antecedents involving an offence of voluntarily causing hurt, the accused pleaded guilty to one charge and consented to another charge under s 323 of the Penal Code to be taken into consideration. He was sentenced to an imprisonment term of 2 months for the offence on 21 September 1993. According to the prosecution, the accused subsequently reoffended and was convicted and sentenced on 4 February 2003 to 12 months’ imprisonment for an offence of voluntarily causing hurt involving the act of swinging a four-metre long metal chain at his male tenant of his pet shop and hitting the latter’s head during a verbal dispute. The accused was unhappy that the victim had started his own pet shop business elsewhere and was trying to poach his customers (see Public Prosecutor v Toh Lam Seng [2003] SGDC 32).[note: 19] In affirming the sentence of 12 months’ on appeal, the High Court observed that the accused had shown himself to be a violent man, from his numerous antecedents for violent behaviour. While the victim was not innocent by precipitating the attack with his antagonistic manner, the appellant court found the accused person’s reaction to be far in excess of reasonable behaviour (Toh Lam Seng v Public Prosecutor [2003] 2 SLR(R) 346 at [21]-[25] ).[note: 20] Similarly, while the victim in the present case was not altogether without blame when she scolded and called him such names as “rapist”, the accused person’s reaction was disproportionate.

51     It is pertinent to note that barely within less than a year of his release from prison, the accused reoffended on 2 Sept 2004 by committing affray. In sentencing him to the maximum custodial sentence of one-year imprisonment, the court noted the violent disposition of the accused and previous unsuccessful attempts to rehabilitate him from his violent nature (Public Prosecutor v Toh Lam Seng [2004] SGMC 12 at [7]-[8]).

52     The accused committed the VCH offence when his trial involving the outrage of modesty offence was ongoing, and while he was released on bail. The court further note that the accused had overtly assaulted the victim outside his pet shop in full view of the public including his friends. In the face of overwhelming evidence, the accused person’s plea of guilt is a Hobson’s choice. There is limited weight to be accorded to his plea of guilt.

53     Accordingly, I am of the view that a sentence of eight months’ imprisonment is appropriate.

S 128I(1)(a)(ii) Customs Act charge (DAC-909191-2023) (“Customs charge”)

54     The case of Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 (“Yap Ah Lai”) is instructive in setting out the sentencing framework involving offences of importation under s 128F and punishable under s 128L(4) of the Customs Act under s 128, where the offender’s role was confined to pure importation, where he pleaded guilty at the earliest chance and was a first-time offender. The sentencing framework is presented in a table format using multiple starting ranges depending on the weight of tobacco products involved (Yap Ah Lai at [46] and [57]):

Quantity of Tobacco Product (kg)

Sentencing Range (months)

2-50

3-6

51-100

6-12

101-200

12-18

201-300

18-24

301-400

24-30

>400

30-36



55     The sentencing framework was endorsed by the High Court in Syed Fathuddin Putra bin Syed A Rahman v Public Prosecutor and another appeal [2024] 3 SLR 1672 (“Syed Fathuddin Putra”). In affirming that the Yap Ah Lai framework should govern the specified offences in ss 128D to 128I of the Customs Act punishable under s 128L(4), the High Court recognised that the specific offences also targeted the same twin evils of revenue-loss prevention to the Government and reduction of harmful goods consumption, and formed the core activities of the smuggling chain involving uncustomed harmful goods. The High Court further clarified that the types of offending acts in the smuggling chain for various scenarios under ss 128D to 128I of the Customs Act should not have a serious bearing on the analysis for significant differentiation of culpabilities between two offenders. Beyond looking at the step in the chain which the offender was charged with performing, the culpability of offenders may be distinguished by examining such other factors as further involvement in owning, managing or controlling the smuggling enterprise (at [49]-[50]).

56     The High Court in Syed Fathuddin Putra at [53] identified four key factors cited in Yap Ah Lai (at [29]-[32]) as relevant to the sentencing of offences under the Customs Act:

(a)     the quantity of tobacco products imported (the primary factor in determining the length of sentence as reflected in the benchmark sentencing ranges);

(b)     the repetition of the offence;

(c)     whether the offender acted on his own or was involved in a syndicated operation; and

(d)     the extent of the offender’s role in the smuggling enterprise (such as the level of ownership, management, control and responsibility in the hierarchy of a smuggling syndicate).

The High Court further considered such other sentencing factors as the impact and timeliness of the offender’s guilty plea and the age of the offender, as well as the sentencing benchmark ranges in Yap Ah Lai, in determining that the sentences imposed were not manifestly excessive.

57     It is noteworthy that the High Court in Syed Fathuddin Putra observed at [48] that as the application of the Yap Ah Lai Framework is premised on the assumption that the offender’s role in the smuggling chain is limited purely to the physical act which is the subject of the charge (where only one offending act of the specific offence is present), where the offender undertook a broader role in the smuggling operation by being involved at multiple points and in offences in the smuggling chain, eg. importing, loading and unloading, and storge of duty unpaid cigarettes), it would be appropriate to consider whether these other acts are reflected in separate charges proceeded with or taken into consideration for the purpose of sentencing. Where this is not the case, it would be appropriate to consider the enhanced role of the offender as an aggravating factor justifying a sentence that is more severe.

58     Applying these factors and the Yap Ah Lai sentencing benchmark ranges to the present case, the indicative starting range for the excise duty charge is three to six months’ imprisonment for 36.300 kg of duty unpaid cigarettes.

59     Apart from storing the tobacco products, the accused assisted the supplier in repacking the cigarettes into smaller quantities, as well as in the delivery of the cigarettes and collection of the sale proceeds from the customers.[note: 21] The enhanced role of the accused thus warrants a more severe sentence.

60     Equally aggravating is the fact that the accused received pecuniary benefits for his role. He received payment for his involvement in storing and delivering the tobacco products. He also retained some of the duty unpaid cigarettes for his personal consumption, as well as for the purpose of reselling these for profit. The culpability of the accused was heightened by the fact that he reoffended after committing the offence in relation to the VCH charge, and while he was on bail and during the trial for the offence of outrage of modesty. Simply put, the accused had reoffended on several occasions. The accused demonstrated recalcitrance and a lack of remorse for his conduct.

61     Having regard to the principle of parity in sentencing, the status of the co-accused, Wang, is equally relevant (see Public Prosecutor v Ramlee [1998] 3 SLR(R) 95). She pleaded guilty and consented to similar charges as the accused to be taken into consideration as the accused. She was sentenced to 11 weeks’ imprisonment.[note: 22] As rightly pointed out by the prosecution, the level of culpability of the accused is higher with his greater involvement in a syndicated operation.[note: 23] Co-offenders in a common criminal enterprise who are of greater culpability should generally be more severely punished (Chong Han Rui v Public Prosecutor [2016] SGHC 25 at [1]).

62     While the accused has pleaded guilty to the Customs charge, this must be viewed in the factual context of the accused being caught red-handed with the illegal tobacco products in the unit where he resided with the co-accused, Wang. His plea of guilt is attenuated in its mitigating value.

63     An appropriate sentence is one of five months’ imprisonment.

64     Having determined the appropriate individual sentences, I consider it appropriate to run all the sentences consecutively to give effect to the separate and distinct legally protected interests: see PP v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen Balakrishnan”) at [41]-[47].[note: 24] The aggregate sentence would be one of 45 months’ imprisonment.

65     While the defence has applied the established sentencing frameworks, the proposed uplifts in the sentences are not aligned with reality by reason of the failure to consider the aggravating fact of the accused person’s repeated reoffending while he was released on bail and during the trial for the present offence of outrage of modesty. The VCH charge involved an act of reoffending by the accused, while the Customs charge constituted further offending subsequent to the VCH offence. Punishing the accused less severely for the subsequent offending will be a “perverse outcome that flies in the face of any notion of justice” (Raveen Balakrishnan at [46]). The fact that the second or further offence was committed on bail would ordinarily have been an offence-specific aggravating factor. As an offender-specific aggravating factor, the fact that the accused committed these subsequent offences while he was facing trial for the present case reveals a lack of remorse and serves to amplify his level of culpability. It bears emphasis that in determining the appropriate sentence, the particular factual matrix in each case must be thoroughly considered (GBR at [38]).

66     Having regard to the totality principle, I re-calibrate the individual sentences to ensure that the aggregate sentence is one that is just and proportionate (Lim Seng Soon v Public Prosecutor [2015] 1 SLR 1195 at [40] and [43]; see also Pram Nair v Public Prosecutor [2017] 2 SLR 1015 at [171] and Chong Kum Heng v Public Prosecutor [2020] 4 SLR 1056 at [77]) as follows:

Likely imprisonment sentence

Offence date

Charge

Likely sentence

22 June 2020

S 354(2) of the Penal Code (Cap 224)

31 months’ imprisonment

24 September 2022

VCH charge

7 months’ imprisonment

15 June 2023

Customs charge

4 months’ imprisonment



The aggregate sentence is a term of 42 months’ imprisonment.

67     The Mandatory Aftercare Scheme (‘MAS’) applies if the accused were to sentenced to regular imprisonment. However, I note that the accused’s eligibility for MAS is a neutral factor. It bears noting that the present offences were committed while the accused was placed on the MAS scheme. He had breached the conditions attendant to the scheme.

68     I next consider whether corrective training and preventive detention would be unduly disproportionate.

Issue of proportionality

69     In Sim Yeow Kee at [97]-[98], the court stated that the imposition of a corrective training sentence should be subject to the principle of proportionality. However, the test of proportionality is applied less rigorously in the consideration of preventive detention as a form of punishment, but is no less relevant. Similarly, in Kamis v Public Prosecutor [2024] 3 SLR 1713 (“Kamis”) at [46], the court emphatically stated that the consideration of proportionality, while attenuated in the context of preventive detention, should not be wholly ignored. Notably, the regimes of corrective training and preventive detention are distinct sentencing options that are underpinned by different objectives and rationales. The operative justification for corrective training is specific deterrence and the reformation of the offender (Sim Yeow Kee at [98]). As expressly provided in s 304 (2) of the CPC, the overarching principle governing preventive detention is the need to protect the public. With public interest as the central tenet of the principle, where a habitual offender whose situation does not admit of the possibility of his reform, and thereby constituting a menace to the public, a sentence of preventive detention would be imposed on him for a substantial period of time in order to protect the public (PP v Rosli bin Yassin [2013] 2 SLR 831 (“Rosli”) at [17]). In Rosli, the court reiterated that the sentence of preventive detention is meant essentially for habitual offenders whom the court considers to be beyond redemption and too recalcitrant for reformation (Rosli at [17] citing Public Prosecutor v Wong Wing Hung [1999] 3 SLR(R) 304 at [10]). The totality of the offender’s previous convictions is relevant in determining whether preventive detention is appropriate (Rosli at [17] citing Tan Ngin Hai v Public Prosecutor [2001] 2 SLR(R) 152 at [7]).

70     In Rosli, the offender pleaded guilty to eight charges involving various counts of cheating with common intention, theft, criminal breach of trust, abetment of forgery and culpable homicide not amounting to murder. He consented to another 11 charges being taken into consideration for the purpose of sentencing. The offender was traced with numerous property-related criminal antecedents. In allowing the prosecution’s appeal and enhancing the sentence of 12 year’s preventive detention to a term of 20 years, the Court of Appeal noted that the offender had demonstrated a clear pattern of chronic recidivism.[note: 25] Among his previous punishments was a prior term of eight years’ preventive detention that had little (if any) rehabilitative effect on him. The Court of Appeal found troubling that the offender’s hitherto non-violent conduct had escalated to the most egregious crime of taking of a human life. The offender was assessed to be at a high risk of re-offending, given his lack of remorse, supportive social network and a fixed abode, as well as marketable skills (Rosli at [25]-[29]).

71     In Kamis bin Basir v Public Prosecutor [2024] 3 SLR 1713 (“Kamis”), the 54-year old offender was previously sentenced to two stints of corrective training of seven years and eight years for property offences in 2005 and 2013 respectively, as well as a lengthy imprisonment of five years and six months for a drug consumption offence in 2000. Despite having received caning for those offences, the offender was not deterred in his reoffending. In affirming the sentence of ten years of preventive detention, the appellate court noted that the two stints of corrective training did not seem to have any rehabilitative effect on the offender.

72     In Ow Gan Wee v Public Prosecutor [2023] SGHC 135 (“Ow Gan Wee”), the 51- year old offender appealed against the sentence of eight years’ preventive detention. He pleaded guilty to two charges of theft under s 379 of the Penal Code (Cap 224, 2008 Rev Ed) and s 379 of the Penal Code 1871 (2020 Rev Ed), one charge of drug possession under s 8(a) of the Misuse of Drugs Act 1973 (2020 Rev Ed). The offender was previously sentenced to two stints of corrective training and multiple terms of imprisonment. He re-offended shortly after his release on each occasion. In imposing preventive detention, the appellant court was mindful of the offender’s lack of remorse despite being given numerous opportunities to “realise the error of his ways”.[note: 26]

73     While the principle of proportionality was held to apply less rigorously where the imposition of preventive detention is concerned (see Sim Yeow Kee at [97]), the court in Kamis at [46] reiterated that “considerations of proportionality, whilst attenuated in the context of preventive detention, should not be wholly ignored”. As a point of illustration, the court cited the case of Tan Ngin Hai v Public Prosecutor [2001] 2 SLR(R) 152, where the sentence of eight years’ preventive detention imposed on the offender for theft of $1.10 from a van was found to be wholly disproportionate to the offence: Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 at [77] citing Sim Yeow Kee at [97].

Corrective training as an appropriate form of punishment

74     The accused presented with a long history of offending. Of significance are the antecedents involving sexual offences, namely, his rape and carnal connection convictions. The commonality of these antecedents and the present offence is the modus operandi adopted by the accused in the commission of the offences, and the specific class of victims he targeted, namely, young and adolescent females. The present conviction for an offence of outrage of modesty must be viewed in the context of the repeated nature of the accused’s offending…these added the layered recalcitrance of a repeat offender who lacked contrition, notwithstanding the lengthy terms of imprisonment.

75     According to the pre-sentencing report for corrective training and/or preventive detention (“PSR”), on the general risk of criminal recidivism, the accused is placed on the moderate-high risk/need level of criminal re-offending. Specifically, the accused is assessed to have a high risk of reoffending with sexual and violence offences.[note: 27] In particular, the accused person’s preference for underaged victims was highlighted in the PSR. This is amply demonstrated by the accused present offending and prior convictions involving young and adolescent female victims.

76     I find particularly troubling the lack of remorse and insight displayed by the accused despite his lengthy periods of imprisonment. As observed in the PSR, the accused categorically maintained his denial of his convictions relating to sexual offences including the present offence. The PSR reinforces the view that the accused has failed to gain insight into his criminal conduct and lacked the resolve to break away from the vicious cycle of criminality. By his persistent denial of guilt, the accused refused to accept responsibility for his offences and found justification for his use of violence. The accused person’s habitual use of violence and association with peers of negative influence were well documented in the PSR. Notably, the accused did not challenge the findings of the report.

77     The accused is a constant malevolent presence in the community. A culture of manipulation permeated his engagement with adolescents, as seen from his grooming of the victims in his sexual offences. As highlighted in the PSR, the accused exhibited a pattern of seeking victims who were amenable to his influence and on whom he could exert some psychological coercion.[note: 28] This was borne out by the accused person’s act of persuading the victim in the present outrage of modesty case to bring her hamster to the pet shop, and allowing her to play with his hamsters. Immediately after the incident, the accused even tried to coerce the victim to remain a while longer in the pet shop.

78     It is patent from the report that the effects of protracted incarceration in terms of imprisonment were markedly lost on the accused. The accused was not deterred from reoffending in less than two years from his last release from prisons for sexual offences involving rape and carnal connection. The key findings in the report cement the view that a sentence of imprisonment is not a viable form of punishment.

79     While there appears to be a limited prospect of rehabilitation, the option for reformation should not be foreclosed. It is noteworthy that the PSR recognised the potential in the willingness of the accused to engage in his church activities as a positive source of support and protection that would mitigate his risk of reoffending.[note: 29] The report noted that his previous employment with the church was an indication of his motivation to engage in a prosocial lifestyle.[note: 30]

80     I do not agree with the prosecution that seven years’ preventive detention is an appropriate sentence in the present case.[note: 31] Neither am I persuaded by the prosecution’s argument that reformation is not a realistic prospect for the accused.[note: 32]

81     While the technical requirements for preventive detention are met in the present case, preventive detention of a length of the prescribed statutory minimum of seven years would have been unduly disproportionate, on account of the likely regular imprisonment term of 42 months which would be imposed for the underlying offences (see [ 66 ] ).

82     Conversely, a five-year corrective training sentence would not be unduly disproportionate to the 42- month term of regular imprisonment term that would otherwise have been imposed on the accused, and is not manifestly excessive , given the extent of his criminal record and the need for him to be specifically deterred.

83     Notably, the offenders in Rosli, Ow Gan Wee and Kamis were afforded numerous opportunities by the criminal justice system to be reformed. The imposition of preventive detention came after multiple stints of corrective training and lengthy imprisonment terms that failed to deter the offenders from reoffending.

84     I note that the prosecution did not sufficiently address the appropriateness of corrective training. The prosecution’s written submissions are silent on why corrective training should not be imposed. According to the prosecution, the facts suggested that the accused is not inclined to reform or rehabilitation. The prosecution argues that the protection of the public is the foremost consideration, given that rehabilitation is not a realistic prospect, and maintains that preventive detention is to be preferred over corrective training.

85     The defence did not direct its mind to the findings in the PSR, save for the submission that the report does not deal with the consideration of proportionality. Neither did the defence dispute the findings and opinion of the psychologist in the pre-sentencing report.

86     Ultimately, it is for the court to determine the consideration of proportionality. The pre-sentence report affords insights of a constructive nature. However, the defence elected not to address the findings and opinion of the senior principal psychologist. The non-committal of the defence defeated the objective of the pre-sentence report.

Conclusion

87     For these reasons, I am fortified in my view that the interests of specific deterrence and reformation warrant the imposition of corrective training.

88     Finally, I thank the parties for their assistance in this matter.

[note: 1]See Pre-sentencing report for a corrective training (“CT”) and/or preventive detention (“PD”) dated 18 April 2024

[note: 2]See Criminal Records

[note: 3]See Statement of Facts dated 5 January 2024

[note: 4]Prosecution’s submissions for preventive detention (“PD”)

[note: 5]Prosecution’s submissions for PD at [18]

[note: 6]Prosecution’s further oral submissions, NE Day 14 (12 June 2024), p 14, lines 16-20

[note: 7]Defence sentencing submissions and plea in mitigation (19 January 2024) at [9]

[note: 8]See GBR at [27]-[30]

[note: 9]See GBR at [39]

[note: 10]See GBR at [40]

[note: 11]See GBR at [31]

[note: 12]See also Prosecution’s BOA, Tab 21

[note: 13]Prosecution’s submissions for a CT and PD suitability report at [18]-[19]

[note: 14]Prosecution’s submissions for a CT and PD suitability report at [20]; see also Prosecution’s BOA, Tab 22

[note: 15]Prosecution’s submissions for a CT and PD suitability report at [21]

[note: 16]Prosecution’s submissions for a CT and PD suitability report at [15] and [23]

[note: 17]See Niranjan at [63]

[note: 18]See medical report from Woodlands Polyclinc dated 25 October 2022

[note: 19]Prosecution’s submissions for a CT and PD suitability report at [27]; see also Prosecution’s bundle of authorities on sentence (“BOA”), Tab 18

[note: 20]Prosecution’s BOA, Tab 19

[note: 21]Statement of Facts dated 19 February 2024 at [5]

[note: 22]Prosecution’s submissions for a CT and PD suitability report at [35]; see also Prosecution’s BOA, Tab 15.

[note: 23]Prosecution’s submissions for a CT and PD suitability report, p 14

[note: 24]See also Prosecution’s submissions for a CT and PT suitability report at [36]-[37]

[note: 25]See Rosli at [24]

[note: 26]See Ow Gan Wee at [9]

[note: 27]See PSR, Part VIII, pp 9-10

[note: 28]See PSR, Part VI, p 9

[note: 29]See PSR, Part VIII, p 10

[note: 30]See PSR, Part VII, p 9

[note: 31]Prosecution’s submissions for PD at [19]-[22]

[note: 32]Prosecution’s submissions for PD at [9]-[18]

"},{"tags":["Tort – Negligence – Damages"],"date":"2024-10-30","court":"District Court","case-number":"District Court Originating Claim No 433 of 2022, District Court Appeal No 21 of 2024","title":"Tan Yu Hong v Lek Meng Peau","citation":"[2024] SGDC 278","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32435-SSP.xml","counsel":["R Magendran (Arasan Law Chambers) for the Claimant","Shahira Binte Mohd Anuar (Securus Legal LLC) for the Defendant."],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Tan Yu Hong v Lek Meng Peau

Tan Yu Hong v Lek Meng Peau
[2024] SGDC 278

Case Number:District Court Originating Claim No 433 of 2022, District Court Appeal No 21 of 2024
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: Samuel Wee
Counsel Name(s): R Magendran (Arasan Law Chambers) for the Claimant; Shahira Binte Mohd Anuar (Securus Legal LLC) for the Defendant.
Parties: Tan Yu Hong — Lek Meng Peau

Tort – Negligence – Damages

30 October 2024

District Judge Samuel Wee:

Introduction

1       In September 2019, the Claimant fell inside a public bus (“Bus”) and suffered injuries. The incident occurred due to an abrupt encroachment by the Defendant’s car into the Bus’s lane, which caused the driver of the Bus to brake suddenly and the Claimant to be flung to the floor of the Bus.[note: 1]

2       The Claimant suffered injuries to his lower back, cervical spine and left shoulder.[note: 2] He underwent treatment in end-September 2019 in the form of radiofrequency ablation of facet nerves C3/4, C4/5. C5/6 and C6/7 and radiofrequency neurolysis of left C5 nerve (“Sep 2019 Treatment”).[note: 3] While the pain in his lower back and cervical spine resolved,[note: 4] the pain and discomfort in his left shoulder persisted.[note: 5] The injury to his left shoulder was a posterior labral tear with a paralabral cyst (“Left Shoulder Injury”),[note: 6] for which he had deferred surgery (“Left Shoulder Surgery”).

3       He commenced this action against the Defendant based on the tort of negligence vis-à-vis the manner in which the Defendant drove, and sought the following:[note: 7]

(a)     General damages for pain and suffering in respect of the injuries to his lower back, cervical spine and left shoulder.

(b)     General damages for future medical expenses for the Left Shoulder Surgery.

(c)     General damages for loss of income for the period that he would be unable to work after undergoing the Left Shoulder Injury (“LOI”).

(d)     General damages for loss of earning capacity (“LEC”).

(e)     Special damages for medical expenses and transport expenses.

4       Prior to the commencement of trial, the parties reached an agreement on several issues that helped narrow the scope of the dispute.[note: 8]

(a)     First, parties agreed that the Defendant was 90% responsible for the accident. This meant that:

(i)       The parties were not disputing the existence and breach of a duty of care by the Defendant, which are two of the four elements required to establish liability under the tort of negligence (Crapper Ian Anthony v Salmizan bin Abdullah [2024] 1 SLR 768 at [48]).

(ii)       If the remaining two elements of liability are subsequently established (ie. causation and remoteness) and the Defendant was found to be negligent, the Claimant would be contributorily negligent to the extent of 10%. In this regard, it should be emphasised that contributory negligence is a defence that only arises after the Claimant discharges his burden of proving all four elements to establish liability.

(b)     Second, parties agreed to the following quantum on a 100% basis:

(i)       General damages for pain and suffering: $35,000.

(ii)       Special damages for medical expenses and transport expenses: $6,077.48 and $232.60 respectively.

5       Consequently, the intended focus of the trial was on the residual issues of causation and remoteness, and the quantification of general damages for: (a) future medical expenses; (b) LOI; and (c) LEC. Nevertheless, it became apparent that the Defendant was not actually challenging causation and remoteness, and the matter involved the quantification of general damages.[note: 9]

Decision

6       At the outset, I set out the sums awarded in the following table (which also summarises the amounts sought by the parties):

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General damages – future medical expenses

7       The crux of the issue was whether the Claimant should be entitled to future medical expenses surrounding the Left Shoulder Injury as he had deferred and was hesitant to undergo the surgery. The Claimant’s hesitancy arose from concerns over a possible adverse reaction to anaesthesia required for the surgery,[note: 10] as he previously had a bad reaction to anesthesia – he had been unable to move the muscles below his neck due to generalised dystonia related to the anaesthetic medication administered for the Sep 2019 Treatment.[note: 11]

8       The Claimant took the position that he should be entitled to future medical expenses as he was, despite his hesitancy, prepared to undergo the Left Shoulder Surgery if the condition worsened.[note: 12] The Claimant presented his claim as a range with an upper limit of $105,500 that comprised the following:[note: 13]

(a)     $40,000 to $95,000 in medical expenses for the Left Shoulder Surgery.[note: 14] This included $40,000 to $45,000 for the Left Shoulder Surgery itself, and a further $50,000 as a buffer if the surgery became complicated due to the risk of generalised dystonia.

(b)     $1,800 for 10 to 12 physiotherapy sessions.[note: 15]

(c)     $5,700 for magnetic resonance imaging (“MRI”) scans to monitor his condition until the Left Shoulder Surgery is performed.[note: 16]

(d)     $2,400 to $3,000 for medication until the Left Shoulder Surgery is performed.[note: 17]

9       The Defendant contended that the Claimant should not be awarded future medical expenses because of the low possibility that he will undergo the Left Shoulder Surgery, due to the risk of generalised dystonia that the Claimant may suffer.[note: 18]

10     The law is clear that future medical expenses can be claimed where there is an appreciable risk that the victim will suffer that loss (Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) at [65] and [72]-[73]).

11     Both the Claimant’s medical expert Dr Henry Chan Ying Ho (“Dr Chan”) and the Defendant’s medical expert Dr Chang Wei Chun (“Dr Chang”) agreed that the Claimant’s present condition was sufficient to require surgery in the form of a left shoulder arthroscopic decompression of the paralabral cyst and labral repair (ie. the Left Shoulder Surgery).[note: 19] However, as the Left Shoulder Surgery required anaesthesia, both Dr Chan and Dr Chang suggested the possibility of deferring the surgery for the time being.

(a)     Dr Chan offered to perform the Left Shoulder Surgery from as early as October 2020.[note: 20] However, due to the risks of generalised dystonia confronting the Claimant when anaesthesia is administered, Dr Chan continued to propose the more conservative option of monitoring the Claimant’s condition and deferring the surgery.[note: 21] The monitoring involved undergoing regular MRI scans to observe the size and growth of the cyst.[note: 22]

(b)     Dr Chang gave evidence that the Left Shoulder Surgery could be performed if the Claimant wished, but that it was also reasonable to adopt the conservative option of monitoring the situation until such time when the Claimant’s pain was “bad enough”.[note: 23]

12     As far as the Claimant was concerned, he remained prepared to undergo the Left Shoulder Surgery if his condition worsened, such that he lost sensation in his left arm and had no other options (which he referred to as a “life-threatening issue”).[note: 24] However, as the cyst in the Claimant’s left shoulder had not yet reached a size that would cause him to lose sensation in his left arm, he had deferred the Left Shoulder Surgery and adopted the conservative treatment proposed.[note: 25]

13     That said, the evidence from the medical experts showed that the cyst had grown over time and continued to pose a risk of growing bigger;[note: 26] and that it remained possible for the Claimant to lose the range of motion and sensation in his left arm. In this regard, I found the evidence from the Claimant’s medical expert Dr Chan’s to be particularly of assistance, as Dr Chan confirmed the possibility that the cyst would “cause weakness because of the compression of the nerve” and “cause pain and pressure effect when [the Claimant] lift[s] up the shoulder”.[note: 27] Dr Chan’s evidence came from the perspective of the doctor who treated the Claimant and had first-hand knowledge of the Claimant’s condition, and there was no reason for me to doubt the same. Further, the Defendant’s medical expert Dr Chang accepted that “there may be pain and immobility” if the cyst grew bigger,[note: 28] and did not actually contradict Dr Chan’s view.

14     Consequently, I found that there was an appreciable risk that the Claimant would undergo the Left Shoulder Surgery and awarded $45,000 for the future medical expenses for the surgery. This figure was based on the evidence from the Claimant’s medical expert Dr Chan showing that the Left Shoulder Surgery would cost around $40,000 to $45,000 (excluding GST).[note: 29] To this end, I disagreed with the Claimant that there should be an additional award of $50,000 as a buffer if the surgery became complicated due to the risk of generalised dystonia as there was insufficient evidence to support such an award.

15     Further, I disagreed with the Defendant’s belated argument that the award should be discounted by 50% because of the uncertainties surrounding whether the Claimant would have to undergo the Left Shoulder Surgery (Lua Bee Kiang at [72]-[73]). This argument was not raised by the Defendant in his Closing Submissions, and was raised belatedly by the Defendant’s counsel as a “further argument” after I had issued my oral judgment on 7 October 2024.[note: 30] In line with TG Master Pte Ltd v Tung Kee Development (Singapore) Pte Ltd and another [2023] SGHC 64 at [2], [24] and [50], it is doubtful that that “further arguments” could be entertained after I had delivered my oral judgment that arose from a trial. In any event, the Defendant’s counsel merely proposed the 50% discount without any explanation of how the percentage was derived, and she did not raise any arguments that would have helped the Court determine the discount “with sympathy and with fairness for the interest of all concerned and at all times with a sense of proportion” and to ensure that the Claimant received a fair compensation (Lua Bee Kiang at [72] and [80]).

16     Turning to the other aspects of the Claimant’s claim for future medical expenses, I found that the Claimant was also entitled to future expenses for 10 physiotherapy sessions at $85 per session and awarded $850 (ie. $85 x 10 sessions). This finding was based on the evidence from the Defendant’s medical expert Dr Chang, who indicated that 10 to 12 physiotherapy sessions would be required post-surgery, and that each session would cost about $85.[note: 31]This award was a reduction from the $1,800 sought by the Claimant.

17     However, I disallowed the Claimant’s claim for damages for the anticipated expenses for MRI scans and medication that would have to be incurred whilst he continues to defer the Left Shoulder Surgery. I did not find justification for the Defendant to be responsible for such expenses when it was the Claimant who opted to defer the Left Shoulder Surgery, even though the surgery could have already been performed based on his prevailing condition.

General damages – LOI

18     The Claimant sought $20,000 in LOI for the period that he would be unable to work after undergoing the Surgery.[note: 32] The period was estimated to be 4 months, and the amount tabulated based on a monthly income of $5,000.

19     I disallowed this claim as the Claimant had in his Closing Submissions conceded that no evidence was adduced of his alleged income of $5,000;[note: 33] and there was no evidence showing how the 4 months was derived.

General damages – LEC

20     The Claimant sought $20,000 in LEC on the basis that he was “unable to climb cat-ladders that are too high in his job due to the injuries and also unable to lift heavy items”[note: 34] and “If the Claimant loses the strength or the use of his left hand due to his injuries, he will be handicapped and he needs to be compensated due to his injuries”.[note: 35]

21     LEC relates to the victim’s competitive disadvantage in the open labour market because of the injuries he suffered. As the Claimant was employed,[note: 36] he had to show that: (a) there was a substantial or real risk that he could lose his present job at some time before the end of his working life; and (b) that he would be at a disadvantage in the open employment market because of the injuries (Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 at [36]).

22     I disallowed this claim as the Claimant did not address or establish either of the requisite elements, and merely invited the Court to adopt a “rough and ready approach” to award the LEC.[note: 37]

Conclusion

23     As reflected in the table at [6] above, the total amount of damages on a 100% basis was $87,160.08, comprising $80,850 in general damages and $6,310.08 in special damages.

24     In line with the parties’ agreement that the Defendant was 90% responsible for the accident (see [4(a)] above), I awarded damages of $78,444.07 to the Claimant, comprising $72,765 in general damages and $5,679.07 in special damages.

25     Interest was fixed at 5.33% p.a. on general damages from the date of the Originating Claim to judgment; and 2.67% p.a. on special damages from the date of the accident to judgment.

26     I also fixed costs payable by the Defendant to the Claimant at $14,000. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

[note: 1]Statement of Claim (“SOC”)_[3]-[7]; Affidavit of evidence-in-chief of Tan Yu Hong (“CMAEIC”)_[4].

[note: 2]3CBD_5 (Dr Chan’s Report dated 13 January 2020); 3CBD_16 (Dr Chang’s Report dated 28 April 2023).

[note: 3]3CBD_5 (Dr Chan’s Report dated 13 January 2020).

[note: 4]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_13, 16 (Dr Chang’s Report dated 28 April 2023).

[note: 5]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_13 (Dr Chang’s Report).

[note: 6]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_16 (Dr Chang’s Report); 2TRANS_PDF10:1-13.

[note: 7]Claimant’s Opening Statement (“CMOpening”)_PDF3-6; Claimant’s Closing Submissions (“CMClosingSubs”)_[2].

[note: 8]CMClosingSubs_[3]; Defendant’s Closing Submissions (“DFClosingSubs”)_[3]-[4].

[note: 9]See DFClosingSubs.

[note: 10]CMAEIC_[17]; 1TRANS_PDF8:14-19. *[Day of Trial]TRANS_[PDF Page Number]:[Lines in Transcript]

[note: 11]CMAEIC_[13]-[15]; 3CBD_7; 2TRANS_PDF8:5-PDF9:2; 2TRANS_PDF21:1-20.

[note: 12]CMClosingSubs_[10], [22]-[24], [32]-[35].

[note: 13]CMClosingSubs_[45].

[note: 14]CMClosingSubs_[36].

[note: 15]CMClosingSubs_[38].

[note: 16]CMClosingSubs_[39].

[note: 17]CMClosingSubs_[40].

[note: 18]DFClosingSubs_[20].

[note: 19]3CBD_6 (Dr Chan’s Report dated 19 October 2020); CBD_7 (Dr Chan’s Report dated 6 February 2021); 3CBD_9 (Dr Chan’s Report dated 17 April 2024); 2TRANS_PDF10:14-21; 2TRANS_PDF20:3-17.

[note: 20]3CBD_6 (Dr Chan’s Report dated 19 October 2020).

[note: 21]2TRANS_PDF12:1-20.

[note: 22]3CBD_9 (Dr Chan’s Report dated 17 April 2024).

[note: 23]2TRANS_PDF20:3-17.

[note: 24]1TRANS_PDF8:23-PDF9:22, PDF13:1-14.

[note: 25]1TRANS_PDF12:5-PDF13:7.

[note: 26]2TRANS_PDF13:17-PDF14:2, PDF15:9-19; 2TRANS_PDF20:3-17, PDF23:15-PDF24:11.

[note: 27]2TRANS_PDF13:17-PDF14:2.

[note: 28]2TRANS_PDF23:3-PDF24:11.

[note: 29]3CBD_9 (Dr Chan’s Report dated 17 April 2024).

[note: 30]Notes of Evidence for the hearing on 7 October 2024 at pages 5 to 6.

[note: 31]3CBD_18 (Dr Chang’s Report dated 13 May 2024).

[note: 32]CMClosingSubs_[41].

[note: 33]CMClosingSubs_[41].

[note: 34]CMClosingSubs_[42].

[note: 35]Claimant’s Reply Submissions (“CMReplySubs”)_[2].

[note: 36]1TRANS_PDF12:9-18.

[note: 37]CMClosingSubs_[42]-[44]; CMReplySubs_[1]-[4].

"},{"tags":["Criminal Law – Statutory offences – Misuse of Drugs Act – Mistaken delivery defence – Consumption defence","Criminal Procedure and Sentencing – Sentencing – Drug trafficking – Drug possession – Drug consumption"],"date":"2024-10-11","court":"District Court","case-number":"District Arrest Case No 924431 of 2019 and 12 Others, Magistrate's Appeals No 9203 of 2024-01","title":"Public Prosecutor v Abdullah Bin Mohammad Kunhi","citation":"[2024] SGDC 264","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32318-SSP.xml","counsel":["Koh Yi Wen (Attorney-General's Chambers) for the Public Prosecutor","Prakash Otharam (Kalidass Law Corporation) for the Accused."],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Paul Chan","html":"Public Prosecutor v Abdullah Bin Mohammad Kunhi

Public Prosecutor v Abdullah Bin Mohammad Kunhi
[2024] SGDC 264

Case Number:District Arrest Case No 924431 of 2019 and 12 Others, Magistrate's Appeals No 9203 of 2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Paul Chan
Counsel Name(s): Koh Yi Wen (Attorney-General's Chambers) for the Public Prosecutor; Prakash Otharam (Kalidass Law Corporation) for the Accused.
Parties: Public Prosecutor — Abdullah Bin Mohammad Kunhi

Criminal Law – Statutory offences – Misuse of Drugs Act – Mistaken delivery defence – Consumption defence

Criminal Procedure and Sentencing – Sentencing – Drug trafficking – Drug possession – Drug consumption

11 October 2024

Judgment reserved.

District Judge Paul Chan:

1       In the present case, the Prosecution initially preferred 13 charges against the accused, Mr Abdullah Bin Mohammad Kunhi. During the pre-trial stage, one charge was withdrawn. The Prosecution then elected to proceed on five charges first, with the other charges stood down pending the resolution of the five charges. The following five drug-related charges therefore formed the subject matter of the trial before this court.

(a)     possession of not less than 249.99 grams of methamphetamine (the “Methamphetamine Possession Charge”);

(b)     trafficking of not less than 15.01 grams of MDMA (the “MDMA Trafficking Charge”);

(c)     possession of not less than 0.35 grams of diamorphine (the “Diamorphine Possession Charge”);

(d)     possession of tetrahydrocannabinol (the “THC Possession Charge”); and

(e)     possession of drug utensils (the “Drug Utensils Charge”).

2       During his examination-in-chief in the course of trial, the accused confirmed that he was only disputing three of the five proceeded charges, namely the Methamphetamine Possession Charge, the MDMA Trafficking Charge and the Diamorphine Possession Charge.[note: 1] These charges arose from drugs that were recovered from two bundles that the accused had received from a co-accused person shortly before his arrest. The accused raised two key defences:

(a)     the drugs were delivered to the accused by mistake; and

(b)     the accused had ordered 100 tablets of MDMA for personal consumption and not for trafficking.

The resolution of the trial turned largely on whether these defences were made out on a balance of probabilities.

3       I found that there was indeed a reasonable doubt as to whether the drugs were meant for the accused. This was principally on account of evidence provided by a co-accused person that was highly probative of the fact that the drugs were wrongly delivered to the accused. In my judgment, the co-accused’s evidence was not materially damaged at trial. However, on the totality of the relevant evidence, I found that the accused failed to prove, on a balance of probabilities, that he had ordered 100 tablets of MDMA for personal consumption.

4       Flowing from the above findings, I made the following orders:

(a)     I acquitted the accused of the Methamphetamine Possession Charge and the Diamorphine Possession Charge.

(b)     I altered the MDMA Trafficking Charge to one for attempted MDMA trafficking and convicted the accused of the amended charge (the “Attempted MDMA Trafficking Charge”).

(c)     I convicted the accused of the THC Possession Charge and the Drug Utensils Charge.

5       Following the trial, the accused subsequently pleaded guilty to a further two charges. The first was for consumption of methamphetamine. The second was for possession of a sword otherwise than for a lawful purpose. He also consented to have another five charges taken into consideration for the purpose of sentencing. After considering the submissions made by parties, I ultimately sentenced the accused to an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane.

6       I now set out the reasons for my decisions.

The Charges

7       The charges that were the subject matter of trial were on the following terms.

The Methamphetamine Possession Charge

You…are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, two (2) packets containing a total of 372.4 grams of crystalline substance, which was analysed and found to contain not less than 249.99 grams of methamphetamine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The MDMA Trafficking Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did traffic in a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, by having in your possession one (1) packet containing one hundred (100) tablets weighing not less than 29.67 grams, which was analysed and found to contain not less than 15.01 grams of MDMA, for the purpose of trafficking, at the said place, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) MDA,

And further, that you, before the commission of the said offence, on 13 December 2010, in the District Court No. 19, in Singapore, vide DAC23780/2010, were convicted for an offence of trafficking in a controlled drug, to wit, methamphetamine, under s 5(1)(a) MDA, and were sentenced to 7 years’ imprisonment and 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you are thereby liable for enhanced punishment under s 33(4A)(i) MDA.

The Diamorphine Possession Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, one (1) packet containing not less than 11.80 grams of granular/powdery granular substance, which was analysed and found to contain not less than 0.35 gram of Diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The THC Possession Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, one (1) packet containing not less than 0.93 gram of fragmented vegetable matter, which was analysed and found to contain tetrahydrocannabinol, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The Drug Utensils Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession of utensils intended for the consumption of a controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, one (1) spoon, one (1) straw, one (1) improvised bottle, one (1) glass pipe, one (1) aluminium foil, four (4) cut straws, and three (3) lighters, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 9, which is punishable under s 33(1) MDA.

[Emphasis deleted.]

The undisputed facts

8       On 2 December 2019, Mr Jude Leslie Paul (the “co-accused”) entered Singapore from Malaysia through the Tuas Checkpoint on a motorcycle. He travelled thereafter to the vicinity of the carpark of Blk 4 Teck Whye Avenue, Singapore (the “Drop Off Point”).

9       At the Drop Off Point, the co-accused met with the accused. The co-accused stopped his motorcycle, removed a plastic bag from the storage box affixed to his motorcycle and handed the plastic bag to the accused. At the same time, the accused had intended to travel to a friend’s residence in Bukit Batok and, to that end, had a private hire car waiting for him. The accused took the plastic bag and immediately entered the private hire car. The private hire car then travelled to Bukit Batok West Avenue 5. The accused was arrested upon arrival at Bukit Batok.

10     While CNB officers were escorting the accused to a police vehicle, a bundle with red tape dropped from the accused’s body onto the floor. That bundle had the words “TAMIL 100-250” written in black on it. A further search of the accused was conducted whereupon the CNB officers recovered, amongst other things, a similar bundle with red tape. This bundle was marked “Tamil 125”.

11     The table below summarises the drugs found within these bundles. The results of the forensic analysis performed by the Health Sciences Authority were not challenged by the accused.

Exhibit description

Result of forensic analysis

CNB marking

Court marking

One bundle with red tape and marking “TAMIL 100-250” later found to contain:

 

B1

P3

Not less than 248.2 grams of crystalline/powdery substance

Substance contained not less than 166.8 grams of methamphetamine

B1A

P4

100 green tablets and not less than 11.80 grams of granular/powdery substance

Tablets contained not less than 15.01 grams for MDMA

Granular/powdery substance contained not less than 0.35 grams of diamorphine

B1B

P5

One bundle with red tape and marking “TAMIL 125” later found to contain:

 

B2

P6

Not less than 124.2 grams of crystalline substance

Substance contained not less than 83.88 grams of methamphetamine

B2A

P7



In this judgment, I adopt the CNB markings when references are made to the exhibits.

12     Photographs taken by CNB officers of these bundles and drugs may be seen below.

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13     In addition to the above exhibits, several other items were also seized from the accused’s possession. Amongst these items were the drug utensils listed in the Drug Utensils Charge as well as a packet of vegetable matter. This packet of vegetable matter was subsequently analysed and found to contain cannabinol and tetrahydrocannabinol.

The parties’ cases

The Prosecution’s case

14     The accused was first produced in court on 18 April 2019. The Prosecution’s case was that, after the accused was released on bail on 26 October 2019, he was active in dealing with controlled drugs. In particular, the accused placed an order for MDMA, methamphetamine and diamorphine with an unknown person going by the moniker “Boy”. Boy was also known to the accused as “Boy Taman” and “Tasha” and he resided in Malaysia. Pursuant to that order, the accused, at 5.11 am on 1 December 2019, transferred a total sum of $1,350 to Boy and arranged for the drugs to be delivered. In satisfaction of that order, the co-accused, at about 12:50 am on 3 December 2019, delivered a white plastic bag to the accused at the Drop Off Point. The white plastic bag contained B1, B1A, B1B, B2, B2A.

15     As regards the methamphetamine and diamorphine, the Prosecution submitted that the accused was in unauthorised possession of these drugs. The Prosecution sought to prove the element of possession. Insofar as the knowledge of the nature of the drug was concerned, the Prosecution relied on the presumption under section 18(2) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”).

16     As regards the MDMA, the Prosecution submitted that the accused had possessed the drugs for the purposes of trafficking. In this regard, the Prosecution sought to prove that the accused possessed the drugs and had knowledge of the nature of the drug. The Prosecution relied on the presumption of trafficking under section 17(i) of the MDA. Further, if the drugs were mistakenly delivered to the accused, the Prosecution argued that the accused should nevertheless be convicted of an amended charge for attempted trafficking of 100 MDMA tablets.

The Defence’s case

The accused’s evidence

17     The accused admitted that he ordered 100 tablets of MDMA from Boy on 30 November 2019 or 1 December 2019. However, he denied ordering methamphetamine and diamorphine. According to the accused, the two bundles that were delivered to him and all the drugs contained within were mistakenly delivered to him and that he was not the correct recipient of these bundles. He only saw that the plastic bag provided to him by the co-accused contained two packages - B1 and B2 - after he had entered the private hire car. He was surprised by this as 100 tablets “usually… doesn’t come in two packages”. [note: 2] The accused wanted to check the contents of the packages. However, he did not do so immediately as he knew that the bundles contained illegal items and he wanted to check the items in private. I shall call this the “Mistaken Delivery Defence”.

18     Further, the Defence argued that the 100 MDMA tablets that the accused ordered were meant for personal consumption. The accused would ordinarily consume two to five tablets a day, depending on the quality of the tablets. The tablets that the accused ordered was meant to be used for personal consumption over a period of about a month. I shall call this the “Consumption Defence”.

19     As mentioned earlier, the accused did not challenge the THC Possession Charge and the Drug Utensils Charge.

The co-accused’s evidence

20     According to the co-accused, he worked for an individual known to him as Dinesh. Pursuant to Dinesh’s instructions, the co-accused used a motorcycle belonging to Dinesh to enter Singapore from Malaysia. The co-accused was told to travel to a location and collect a sum of money. After the co-accused had collected this sum of money, Dinesh informed the co-accused to remove two bundles (namely, B1 and B2) which was hidden within the side cover of the motorcycle and deliver them to the Drop Off Point. Upon arrival, the co-accused called Dinesh whereupon the co-accused was instructed to hand over the plastic bag containing B1 and B2 to an individual wearing a red shirt. The co-accused handed B1 and B2 to the accused without speaking to the accused.

21     After leaving the location and when the co-accused was on the way back to Malaysia, Dinesh called the co-accused. Dinesh told the co-accused to return to the Drop Off Point where he had delivered B1 and B2, retrieve the bundles from the accused and deliver them to somebody else in Bukit Batok. The co-accused was arrested shortly thereafter.

Issues to be determined

22     Arising from the submissions made by the parties, the following issues arose for consideration.

Guilt

(a)     Whether the accused was not guilty of the Methamphetamine Possession Charge, the MDMA Trafficking Charge and the Diamorphine Possession Charge by reason of the fact that the relevant drugs were delivered to him by mistake.

(b)     If the accused was not guilty of the MDMA Trafficking Charge, whether the accused was also not guilty of the Attempted MDMA Trafficking Charge by reason of the fact that:

(i)       the primary offence was an impossibility in that the drugs that the accused received were not intended for him;

(ii)       any attempted possession was for the purpose of personal consumption, not trafficking; and

(iii)       the accused’s acts were insufficient to constitute an attempt.

(c)     Whether the Prosecution had proven the THC Possession Charge and the Drug Utensils Charge beyond reasonable doubt.

Sentence

(d)     What sentences should be imposed for each of the charges that the accused was convicted of?

(e)     What should the aggregate sentence be?

Issue 1: Whether drugs were mistakenly delivered

The applicable law

Burden of proof

23     It is necessary to begin with the law governing the burden of proof. The Prosecution always bears the legal burden of proving the charges against an offender beyond reasonable doubt. A reasonable doubt is one for which a reason can be given, so long as the reason given is logically connected to the evidence: Public Prosecutor v GCK [2020] 1 SLR 486 (at [131]). The legal burden does not shift throughout the trial. That said, in certain situations, the Prosecution may rely on statutory presumptions to satisfy this burden. Where this is so, the legal burden is on the offender to prove, on a balance of probabilities, the existence of facts to rebut the presumptions: Roshdi bin Abdullah Altway v Public Prosecutor and another matter [2022] 1 SLR 535 (at [72]-[73]).

Drug possession and trafficking

24     The Methamphetamine and Diamorphine Possession Charges were brought under section 8(a) of the MDA. This section provides:

Possession and consumption of controlled drugs

8.    Except as authorised by this Act, it shall be an offence for a person to –

(a)    have in his or her possession a controlled drug; or

…

25     The elements to be satisfied for a charge of drug possession under section 8(a) of the MDA are as follows: Sim Teck Ho v Public Prosecutor [2000] 2 SLR(R) 959 (“Sim Teck Ho”) (at [11]).

(a)     Possession of a controlled drug (which may be proved or presumed under section 18(1) of the MDA, or deemed under section 18(4) of the MDA (the “Possession Element”).

(b)     Knowledge of the nature of the drug (which may be proved or presumed under section 18(2) of the MDA) (the “Knowledge Element”).

26     The MDMA Trafficking Charge was brought under section 5(1)(a) read with section 5(2) of the MDA. This section provides:

Trafficking in controlled drugs

5. –(1)    Except as authorised by this Act, it shall be an offence for a person, on his or her own behalf or on behalf of any other person, whether or not that other person is in Singapore –

(a)    to traffic in a controlled drug;

…

(2)    For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he or she has in his or her possession that drug for the purpose of trafficking.

27     It is well established that the elements to be satisfied for a charge of possession for the purpose of trafficking under section 5(1)(a) read with section 5(2) of the MDA are as follows: Public Prosecutor v Yeo Liang Hou and another [2023] SGHC 157 (“Yeo Liang Hou”) (at [24]).

(a)     The Possession Element.

(b)     The Knowledge Element.

(c)     Possession of the controlled drug was for the purpose of trafficking which was not authorised.

The Mistaken Delivery Defence

28     If the Defence established the Mistaken Delivery Defence on a balance of probabilities, there was no question that the Knowledge Element, at the very least, would be disproved in respect of the Methamphetamine Possession Charge and the Diamorphine Possession Charge – the accused could not have known that B1 and B2 contained methamphetamine and diamorphine. There was, however, a question of how the Mistaken Delivery Defence, if correct, would affect the MDMA Trafficking Charge.

29     In this regard, the Prosecution took the position that, even if the Mistaken Delivery Defence was made out, it would neither disprove the Possession Element nor the Knowledge Element of the MDMA Trafficking Charge.[note: 3] It took this position for the following reasons.

(a)     The Possession Element comprised both a physical component and a knowledge component.

(i)       The physical component was made out as it was undisputed that the accused was in physical possession of the two bundles, namely B1 and B2.

(ii)       In order to satisfy the knowledge component, it must simply be proved that an offender is aware “of the thing that later turned out to be a drug”: Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (at [40]). In the present case, the accused admitted that he was aware of B1 and B2 when he was in the private hire car.

(b)     The Knowledge Element was made out as the accused had ordered and had expected to receive 100 tablets of MDMA. B1 contained, among other drugs, 100 tablets of MDMA.

30     In my judgment, the manner in which the Prosecution analysed the Knowledge Element was inconsistent with reality on the facts of the present case. The Prosecution’s Case had always been that B1 and B2 (and all the drugs contained within them) were intended for the same recipient.[note: 4] The Prosecution never took the position that the MDMA tablets were correctly delivered but the other drugs were wrongly delivered to the accused. Indeed, the evidence suggested that the Prosecution was right in taking this position. Both B1 and B2 were similarly packaged and marked and were secured by red tape with the word “Tamil” written on them. More significantly, the bag of drugs marked as “B1B” contained both MDMA and diamorphine, with the tablets and powdery substance intermingled: see [11] and [12], above. The evidence therefore suggested that it was intended that the MDMA, methamphetamine and diamorphine were all intended for the same individual.

31     Given this, it would be contrary to reality in the present case to analyse the MDMA Trafficking Charge as if the MDMA may be disaggregated from the rest of the drugs and treated independently. This the Prosecution did by arguing that the Knowledge Element was satisfied as long as the accused was aware that the two bundles contained MDMA, even if he did not know what else the bundles may contain. Furthermore, if the Mistaken Delivery Defence was satisfactorily established, this must logically mean that the accused could not have been aware of what B1 and B2 contained, including whether it contained 100 tablets of MDMA. While the accused did order 100 tablets of MDMA, the bundles he received were materially different from what he had expected to receive. At trial, the accused described himself as “surprised” when he discovered that he had received two bundles.[note: 5] In his police statements, he described himself as “shocked”.[note: 6] I was cognisant that the accused ventured in his police statements that the two bundles contained 100 MDMA tablets and vape accessories.[note: 7] However, this was, at best, a guess and a guess was insufficient. To satisfy the Knowledge Element, the Prosecution must show that the accused “has actual knowledge” or was “almost certain” of the nature of the drugs: Yeo Liang Hou (at [30]). If the Mistaken Delivery Defence was made out, this could not have been the case.

32     In my judgment, the MDMA Trafficking Charge could not succeed if the Mistaken Delivery Defence was proven on a balance of probabilities.

Application of the law

33     I now turn to consider the critical issue of whether the Mistaken Delivery Defence was made out on the facts. After considering the available evidence carefully, I was satisfied that there was a reasonable doubt as to whether the accused was the correct recipient of the drugs. This was so for the following reasons.

34     To begin with, there was no objective evidence regarding the precise order that the accused placed with Boy as this was done by way of a telephone call.[note: 8] The only direct evidence on this point was the accused’s testimony. Nevertheless, what was notable was that the accused made the claim that he only ordered 100 tablets of MDMA - and nothing else - at an early stage of the investigations and he raised this consistently and repeatedly. The first time he raised the Mistaken Delivery Defence was on the same day as his arrest. In his cautioned statement recorded on 3 December 2019, the accused stated as follows.[note: 9]

I didn’t order anything except the 100 piece of Ecstasy. The Ecstasy was for my own consumption. I did not sell it to anyone. When I took the bag from him, I was in a hurry and just got into the car because the “Ryde” driver has arrived already. I am being framed because I ordered Ecstasy but Ice came.”

Thereafter, he repeated this defence on no less than four other occasions.[note: 10] Thus, this was not a defence that was raised belatedly.

35     The Prosecution took issue with the fact that the accused did not raise this argument in his earliest statement which was recorded roughly about one hour after the accused was arrested. However, it was not the case that the accused provided a substantive statement in that instance and failed to raise the Mistaken Delivery Defence. Rather, the accused simply declined to provide a substantive statement at that time.[note: 11]

Q:    I want to take your statement. Can?

A:    I just ate medicine. I’m feeling dizzy.

The accused gave evidence that he had, even prior to this statement, told a police officer that he only ordered 100 tablets of MDMA but the police officer refused to believe him.[note: 12] This was disputed by the Prosecution. However, what could not be gainsaid was the fact that the Mistaken Delivery Defence was raised at an early stage of the investigations, even on the same day of the accused’s arrest.

36     At this point, I acknowledge a point made by the Prosecution – the accused was generally an unreliable witness. His evidence was inconsistent on many important points, including (i) what he had paid Boy for; (ii) the amount of times he bought vape products from Boy, (iii) the reason for his relapse into drug use; and (iv) the source of funds for his purchase of drugs. I will develop these points subsequently. While this meant that his evidence should be treated with caution, it did not mean that his evidence should be wholly rejected without close examination. Rather, “[t]he court must carefully scrutinise the whole of the evidence to determine which aspect might be true and which aspect should be disregarded”: Public Prosecutor v Somwang Phatthanasaeng [1990] 2 SLR(R) 414 (at [43]).

37     In the present case, the accused’s claim that he only ordered 100 tablets of MDMA and that B1 and B2 were wrongly delivered to him was not without corroborative evidence. On the contrary, the co-accused’s evidence was highly probative of the fact that the drugs were wrongly delivered to the accused. At trial, the co-accused revealed that, shortly after the delivery, Dinesh instructed him to return to the Drop Off Point. The co-accused was to retrieve the plastic bag from the accused and deliver them to another location. If true, the only possible inference must be that Dinesh realised that the drugs had been delivered to the wrong location and wanted to retrieve the drugs and re-direct them to the correct location. The relevant portions of the co-accused’s evidence are reproduced below.[note: 13]

Q    So, when you left the place, where were you going?

A    I’m intending to return to JB.

Q    So, were there any more calls with Dinesh after you handed the plastic bag over to this red shirt man?

A    He called me.

Q    And when did Dinesh call you?

A    When I was leaving after handing over the bundles.

Q    So, Dinesh called you when you were leaving the location where you had handed the bundles over to the red shirt man?

A    I had already left that location. I was on my way towards JB when he called me.

Q    And what did Dinesh say when he called you?

A    He told me to go back to the location to collect back the bundle from the person and go to somewhere in Bukit Batok to give it to someone else.

38     I accepted the evidence provided by the co-accused and accorded it significant weight. In doing so, I was mindful of the following three points.

(a)     To the knowledge of this court, the accused and co-accused were unacquainted with each other. The Prosecution did not allege otherwise. The only time they had met (prior to meeting in court) was when the co-accused delivered the drugs to the accused at the Drop Off Point. On that occasion, they met only for the purpose of handing over the white plastic bag and did not speak to each other.[note: 14] Thus, there was no reason to doubt that the evidence provided by the co-accused was objective and independent.

(b)     The co-accused did not give evidence that he was informed that the drugs were wrongly delivered to the accused. He only testified that he had obtained instructions from Dinesh to retrieve the drugs from the accused and to deliver them to a different location. The co-accused’s account on this point was wholly consistent with the overall manner in which he corresponded with Dinesh. According to the co-accused, he did not know much about the drug operation that Dinesh ran. He knew that he had to collect money and deliver items, but he did not know what drugs were being delivered[note: 15] or the precise nature of the transactions[note: 16]. He was also not given a full set of instructions before leaving Malaysia. He was only provided instructions at appropriate junctures when he needed more information to perform his tasks.[note: 17] Hence, it was entirely consistent that Dinesh would tell the co-accused to return to the Drop Off Point to retrieve the drugs without explaining why he had to do so. It was also not unusual that the co-accused complied with the directions unquestioningly.

(c)     At trial, the co-accused did not reveal the exculpatory information - that he was instructed to retrieve the drugs from the accused and deliver them to another location - at the earliest opportunity. As set out above, the co-accused was first asked by the Prosecution where he was headed after leaving the Drop Off Point. To this, it would have been reasonable for the co-accused to explain that he had been heading to Malaysia but was asked to return to the Drop Off Point. The co-accused did not do so. He simply answered that he was returning to Malaysia without elaboration.[note: 18] Had the Prosecution not asked any further questions, the co-accused would not have had an opportunity to disclose Dinesh’s instructions to him. It was only because the Prosecution specifically asked whether there were any more calls from Dinesh after delivery that led to the co-accused’s account that he was instructed to return to the Drop Off Point. Even then, the evidence came out incrementally and the Prosecution had to ask the necessary follow up questions before the full account was revealed.[note: 19]It may be observed that the critical question from the Prosecution - regarding whether there was any more calls from Dinesh after the delivery - was not an obvious one that would have been asked in any event. This suggested that the co-accused was not anxious to reveal that he was instructed to return to the Drop Off Point to retrieve the drugs.

39     The Prosecution tried to undermine the evidence provided by the co-accused by taking the following points.

(a)     The co-accused was not a credible witness. In particular, the co-accused did not raise the fact that he was asked to retrieve the drugs in any of his police statements.

(b)     The co-accused had nothing to lose by tailoring his evidence to support the accused’s Mistaken Delivery Defence.

(c)     There was no evidence to support the co-accused’s testimony that Dinesh told him to retrieve the drugs from the accused.

For the following reasons, I found that the co-accused’s evidence was not materially damaged at trial.

40     The Prosecution suggested that the co-accused was not a credible witness and sought to impeach his evidence. The Prosecution argued that two parts of his evidence were inconsistent with his police statements: (i) his knowledge of the nature of the drugs he delivered to the accused; and (ii) whether Dinesh informed him to return to the Drop Off Point to retrieve the drugs. In my view, the first point was somewhat peripheral since the co-accused had no direct knowledge of what B1 and B2 contained. As the Prosecution accepted, the co-accused’s knowledge of the drugs would be derived from Dinesh and would be “of little relevance”.[note: 20] In any event, whether the co-accused knew the precise nature of the drugs he was delivering had no bearing on whether the drugs were wrongly delivered. In the present case, what was crucial was the latter point.

41     As to the latter point, it was correct that the co-accused did not disclose in any of his police statements that he was told to return to the Drop Off Point to retrieve the drugs. The co-accused explained that this was because of the manner in which the interview was conducted – he only answered questions he was asked and, unlike at trial, he was never asked whether Dinesh had called him after he had delivered the drugs. He was only asked about the delivery of the drugs and the circumstances of his arrest but not what occurred between these two events.[note: 21] I accepted this explanation. It was, in fact, consistent with the manner in which the co-accused answered questions at trial. As mentioned earlier, the co-accused did not volunteer information about him being told to return to the Drop Off Point until he was specifically asked. There was also no contrary evidence regarding the manner the police interviews were conducted and the questions asked. The Prosecution was at liberty to call the police officers who conducted the interviews to give evidence but it did not do so. Accordingly, there was no reason to reject the co-accused’s evidence on this point.

42     Next, the Prosecution suggested that the co-accused had “nothing to lose” by tailoring his evidence to support the Mistaken Delivery Defence. This was incorrect. Intentionally providing false evidence in court proceedings may constitute a criminal offence: see section 191 of the Penal Code 1871. By providing false evidence, the co-accused would open himself up to criminal sanctions beyond that which he was already serving. On the other hand, as mentioned earlier, there was no evidence that the accused had anything to gain by providing false evidence in court. This did not mean, of course, that this court should accept the co-accused’s evidence unquestioningly. However, the Prosecution was wrong to argue that the co-accused’s evidence should not be believed because he had nothing to lose in giving false evidence.

43     Finally, the Prosecution submitted that there was no evidence to support the co-accused’s evidence that he was instructed to retrieve the drugs. In this regard, the Prosecution highlighted two specific matters.

(a)     There was no call record in the WhatsApp correspondence between the co-accused and Dinesh to support the co-accused’s evidence that Dinesh called him after delivery of the drugs.[note: 22] However, what was produced before this court was a photograph of a particular portion of the WhatsApp correspondence between the co-accused and Dinesh. It was not made clear whether this photograph captured the entire conclusion of the correspondence or only a selected portion of the correspondence. No evidence was led on this point. Accordingly, the possibility that there may have been a record of the call between the co-accused and Dinesh which was not captured by the single photograph put before this court could not be dismissed.

(b)     If the co-accused was informed to return to the Drop Off Point to retrieve the drugs from the accused, it would stand to reason that Boy would also have tried to contact the accused. Boy would need to have the accused return to the Drop Off Point to meet the co-accused. However, the Prosecution argued that there was no evidence that Boy had tried to contact the accused after the delivery. I noted that this point was not specifically canvassed at trial – the accused was not taken through the call logs of his four handphones to determine whether Boy had or had not tried to call him after the delivery. Again, one could not dismiss the possibility that Boy had tried to contact the accused but this evidence was not adduced before the court.

44     Taken together, I was of the view that the co-accused’s evidence - that Dinesh instructed him to retrieve the drugs from the accused and deliver them to a different location - was not materially damaged at trial and should be accorded substantial weight.

45     I turn now to deal with some unsatisfactory aspects of the evidence provided by the accused. These pieces of evidence ought to be weighed against the co-accused’s evidence.

(a)     I accepted the Prosecution’s point that the accused had been inconsistent regarding what he had paid Boy for. Documentary evidence suggested that the accused had paid Boy $1,350 on 1 December 2019 at about 5:11 am. According to the accused, $800 of this sum was payment for 100 tablets of MDMA. The remaining $550 was payment for vape products that the accused had ordered from Boy.[note: 23] However, this testimony was inconsistent with the statements the accused made during investigations. He explained in his police statements that he had purchased vape accessories from Boy on two previous occasions. On both occasions, payment was made in cash upon delivery of the vape products.[note: 24] On the basis of the accused’s police statements, there was no outstanding vape products for which payment had not been made.

(b)     I also agreed that the accused had been inconsistent regarding why he did not attempt to contact Boy or check the contents of B1 and B2 after realising that the plastic bag contained two bundles. As mentioned, the accused had described himself as “surprised” at trial[note: 25] and “shocked” in his police statements[note: 26] when he realised that there were two bundles in the plastic bag. On this point, the accused gave three different explanations: (i) his handphone did not have sufficient credits to make calls;[note: 27] (ii) he realised that the private hire car he was in was being followed and was “not thinking properly”;[note: 28] and (iii) it was inconvenient to do so in the private hire car as he was involved in illegality.[note: 29]

(c)     There was evidence that suggested that the accused was generally involved in drug-related activities at the material time.

(i)       Adduced in evidence was a Telegram conversation between the accused and an associate identified as “Super” which discussed the transportation of methamphetamine from Malaysia to Singapore.[note: 30]

(ii)       Pictures of crystalline substances were found in one of the accused’s handphones.[note: 31] While the accused claimed at trial that these were just bathing salts[note: 32], he admitted in his police statements that the substances were methamphetamine sent by a friend to him as a boast[note: 33].

(iii)       A photograph of various mathematical figures was found in one of the accused’s handphones.[note: 34] The accused testified that these figures represented the market price of methamphetamine. However, according to the accused, these figures were not his. The photograph was in fact one of a page from a friend’s notebook. The accused took the photograph as he was curious about the price of methamphetamine.[note: 35]

Conclusion

46     In summary of this section, there were pieces of evidence that pointed in different directions. In particular, there was evidence that suggested that the accused was involved in drug-related activities generally. More significant, however, was the evidence of the co-accused which was highly probative of the fact that the drugs the accused received were wrongly delivered. The co-accused’s account corroborated the accused’s Mistaken Delivery Defence. Considering the totality of the evidence and ascribing weight to the different pieces of evidence as may be appropriate, I found that the Defence had proven the Mistaken Delivery Defence on a balance of probabilities and that there was reasonable doubt as to whether the accused was the correct recipient of B1 and B2.

47     It followed from this finding that the accused must be acquitted of the Methamphetamine Possession Charge and the Diamorphine Possession Charge. However, the Prosecution argued that even if the Mistaken Delivery Defence was made out, the MDMA Trafficking Charge should be altered and the accused should be convicted of the Attempted MDMA Trafficking Charge. To this contention I now turn.

Issue 2: Whether accused guilty of Attempted MDMA Trafficking Charge

Prosecution’s position

48     In the event that the accused was innocent of the MDMA Trafficking Charge, the Prosecution submitted that this court, instead of acquitting him of the charge altogether, should alter the charge to one for attempted possession for the purpose of trafficking. The Prosecution framed the proposed Attempted MDMA Trafficking Charge in the following manner.

You, Abdullah Bin Mohammad Kunhi, are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did attempt to traffic in a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008)(“MDA”), to wit, by having in your possession one (1) packet containing one hundred (100) tablets weighing not less than 29.67 grams, which was analysed and found to contain not less than 15.01 grams of MDMA (“ecstasy”), which you believed to be the 100 ecstasy tablets that you had ordered, for the purpose of trafficking, at the said place, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) and s 12 MDA.

And further, that you, before the commission of the said offence, on 13 December 2010, in the District Court No. 19, in Singapore, vide DAC 23780/2010, were convicted for an offence of trafficking in a controlled drug, to wit, methamphetamine, under s 5(1)(a) MDA, and were sentenced to 7 years’ imprisonment and 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you are thereby liable for enhanced punishment under s 33(4A)(i) MDA.

49     The Prosecution argued that the proposed Attempted MDMA Trafficking Charge was consistent with the position taken in Public Prosecutor v Mas Swan bin Adnan and another appeal [2012] SGCA 29 (“Mas Swan”). In the present case, the accused, it was contended, had done everything possible to complete the offence of possessing 100 tablets of MDMA for the purpose of trafficking. The only circumstance that prevented him from actually possessing the MDMA tablets he ordered was that he had received someone else’s MDMA tablets instead of his own.

50     It was submitted that the Attempted MDMA Trafficking Charge was framed based on the accused’s own evidence and there could not be any prejudice against him.

Defence’s position

51     The Defence did not allege that the accused suffered from any prejudice if the MDMA Trafficking Charge were to be altered to the Attempted MDMA Trafficking Charge. However, the Defence submitted that the accused could not be guilty of the Attempted MDMA Trafficking Charge for the following reasons.

(a)     The Attempted MDMA Trafficking Charge was drafted wrongly. The accused could not be found guilty of attempting to possess drugs which were actually found in his possession.

(b)     The primary offence was an impossibility – the accused’s order of 100 tablets never came into Singapore and the drugs the accused received were not meant for him.

(c)     The accused ordered 100 tablets of MDMA for personal consumption, not trafficking.

(d)     The accused’s act was only limited to ordering the MDMA tablets. This was insufficient to constitute an attempt to possess the tablets.

52     At this point, it would be easiest to deal with the Defence’s first objection immediately. The first objection was based on a misreading of the Attempted MDMA Trafficking Charge. The Attempted MDMA Trafficking Charge did not allege that the accused attempted to possess the 100 tablets that he was actually caught with. Rather, the allegation was that he attempted to possess the MDMA tablets that he had ordered. The fact that the accused had in his possession the 100 MDMA tablets which was contained in B1 simply constituted part of the actus reus (or the physical element) of the attempt. Hence, the first objection was a non-starter.

The applicable law

53     Section 12 of the MDA provides that an attempt to commit a drug-related offence would, in itself, be an offence.

Abetments and attempts punishable as offences

12.     Any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

54     It would also be necessary to consider the general provision dealing with attempts to commit offences under the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). At the time of the accused’s arrest, that provision read as follows.

Punishment for attempting to commit offences

511.—(1)    Subject to subsection (2), whoever attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence.

(2)    The longest term of imprisonment that may be imposed under subsection (1) shall not exceed —

(a)    15 years where such attempt is in relation to an offence punishable with imprisonment for life; or

(b)    one-half of the longest term provided for the offence in any other case

Illustrations

(a)     A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(b)    A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

55     Section 511 of the Penal Code has since been amended by the Criminal Law Reform Act 2019 (Act 15 of 2019) to require the taking of a “substantial step towards the commission of that offence”. However, the amended version of section 511 was not applicable for the purposes of the present case.

56     The law in relation to impossible attempts was comprehensively reviewed and set out by the Court of Appeal in Han Fang Guan v Public Prosecutor [2020] 1 SLR 649 (“Han Fang Guan”). In that decision, the Court of Appeal explained (at [107]) that, once the criminality of the intended act is established, it did not matter that the attempt is impossible. This is because what is being criminalised is the guilty intent of the offender and a movement towards the fulfilment of that intent.

An attempt is criminalised because the intended (or attempted) act is illegal; and the imposition of a requirement that there be sufficient acts to corroborate the existence of that guilty intention serves not only as an evidentiary threshold, but also, and more importantly, as a safeguard to ensure that an accused person is not penalised purely for having a guilty intent. Seen in this light, cases involving impossible attempts must be resolved by focusing on the criminality of the intended act. If that is sufficiently established, it will not generally matter even if what the accused person in fact did would not objectively amount to an offence, such as if a would-be murderer stabbed a bolster mistakenly thinking it was his intended victim. The accused person’s acts are to be analysed against the guilty intent with which he set out, in order to corroborate that intent and establish a movement towards its fulfilment that the law regards as sufficient so as to filter out cases that reside, in truth, only in the guilty mind. [Emphasis added.]

This point therefore answered the second of the arguments made by the Defence in this regard: see [51(b)], above.

57     To take into account all relevant factors, the Court of Appeal established (at [108]) the following framework to analyse impossible attempts.

(a)     Intention – Was there a specific intention to commit a criminal act?

(i)       The key questions in this regard are:

(A)       What was the act that the accused person specifically intended to do?

(B)       Was that intended act criminal, either on its face or by reason of some mistaken belief harboured by the accused person?

(ii)       The inquiry only proceeds to the second stage if the answer to (B) above is “yes”. This would sieve out situations where what the accused person intended to do was not an offence at all, meaning cases of no-offence impossibility, which, as the court in Han Fang Guan noted, is commonly accepted not to give rise to criminal liability for attempt.

(b)      Actus reus – Were there sufficient acts by the accused person in furtherance of the specific intention to commit the criminal act found under (a)? The inquiry here is directed at whether there were sufficient acts to reasonably corroborate the presence of that intention and demonstrate substantial movement towards its fulfilment. A conviction may only be arrived at if the answer to this is “yes”. This inquiry also serves to avoid penalising mere guilty intentions.

Application of the law

58     I now consider how the Han Fang Guan framework applied in the present case.

What was the intended act?

59     In the present case, it was undisputed that the accused intended to possess 100 tablets of MDMA. This was so for the following reasons.

(a)     The accused admitted that he placed an order for 100 MDMA tablets with Boy on 30 November or 1 December 2019.[note: 36] The purpose for the order was disputed (and I will address this subsequently) but for present purposes, it was undisputed that the accused placed the order with every intention to receive delivery of the order.

(b)     The accused made a cash deposit of $1,350 in favour of Boy on 1 December 2019. Of this amount, $800 was payment for the 100 MDMA tablets that the accused had ordered.[note: 37]

(c)     The accused arranged with Boy for the delivery of the 100 MDMA tablets to be made at the Drop Off Point.[note: 38]

(d)     In satisfaction of this arrangement, Boy informed the accused, at about 12:50 am on 3 December 2019, that the co-accused had arrived at the Drop Off Point. The accused met the co-accused and took possession of the white plastic bag with the intention of taking delivery of the 100 MDMA tablets that he had ordered.[note: 39]

60     In my judgment, it was beyond peradventure that the accused intended to possess 100 tablets of MDMA.

Was the intended act criminal?

61     Under section 5(1)(a) of the MDA, it shall be an offence for a person to traffic in a controlled drug. Under the First Schedule of the MDA, MDMA was a Class A controlled drug. The offence of trafficking may be constituted if that person had in his possession that drug for the purpose of trafficking: section 5(2) of the MDA. Accordingly, the accused’s intended act of possessing 100 tablets of MDMA would be criminal if it was done for the purpose of trafficking.

62     As regards the purpose of possessing controlled drugs was concerned, there was a statutory presumption of trafficking under section 17(i) of the MDA. This statutory presumption applied in a situation when a person had in his possession more than ten grams of MDMA. In the present case, 100 tablets of MDMA of the type the accused ordered weighed not less than 15.01 grams.

63     Accordingly, the act that the accused intended to commit – possessing 100 tablets of MDMA – was criminal unless the accused was able to prove on a balance of probabilities that the 100 tablets he had intended to possess were not for the purpose of trafficking. In this regard, the accused testified that the 100 tablets of MDMA were meant for personal consumption. This was also the position he took in his police statements as early as 3 December 2019.[note: 40] Nevertheless, on the totality of the evidence, I found that the accused failed to prove the Consumption Defence.

(A)   Rate of consumption

64     The rate of consumption has been described as the “key pillar and essential foundation” of a consumption defence. The Court of Appeal held that “[t]he appellant bears the burden of establishing the extent of his personal consumption, and it is incumbent on him to show, by credible evidence, his rate of consumption”: A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538 (at [25]).

65     In the present case, the accused testified that he would consume between two to five MDMA tablets a day, depending on the quality of the tablets.[note: 41] This was a slight shift from the account he gave in his police statements where he had stated that “[b]ack then, I had consumed 02 to 03 “E” tablets per day”.[note: 42] As mentioned (at [36], above), the accused was a generally unreliable witness whose evidence should be approached with caution. Given that there was no other corroborative evidence regarding the accused’s rate of consumption, the accused’s evidence on this point must be assessed accordingly.

66     In any event, based on the accused’s evidence, he would consume 100 tablets of MDMA in 20 to 50 days. In my judgment, such a rate of consumption was not strongly probative that the tablets were meant only for personal consumption, especially in light of the subsequent discussion regarding his ability to pay for the drugs.

(B)   Reason for relapse

67     According to the accused, he did not consume any drugs since he was released on bail on 26 October 2019. Nevertheless, he accepted that he ordered 100 tablets of MDMA from Boy on either 29 or 30 November 2019. The accused argued that he had ordered these tablets for personal consumption. However, he could not provide a consistent account of why he decided to relapse into consuming MDMA and why he would order 100 tablets of MDMA in a single instance.

68     In his police statements, the accused provided two reasons why he ordered 100 tablets of MDMA in a single instance.

(a)     The accused ordered 100 tablets of MDMA “as it was cheaper to buy more”.[note: 43] However, this reason did not withstand scrutiny. At trial, the accused stated that he did not know whether he, in fact, enjoyed a discount for purchasing 100 tablets in a single instance.[note: 44] He simply stated that “[t]hat’s what Boy told me. If I buy more, I can get cheaper.”[note: 45] If the motivation for buying so many MDMA tablets in a single instance was to enable the accused to pay less per tablet, it was curious that the accused did not ensure that he did, in fact, enjoy a better rate.

(b)     Next, the accused proffered in his police statements that he decided to overdose on MDMA as he saw his mother cry when she caught the accused consuming “Epam”. His logic was that “[he] could not stop [his] addiction to “ice” and “heroin” so [he] thought about overdosing [himself]”. However, at trial, he recanted from this position. He clarified that the episode of his mother crying only took place on 3 November 2019 (after the accused was arrested for the present offences). Hence, it had no impact on the accused’s decision to purchase 100 tablets of MDMA.[note: 46]

69     At trial, the accused provided two different reasons for ordering 100 tablets of MDMA from Boy.

(a)     The accused said that his bailor, one Mr Firdaus, had motivated him to stay clean from drugs after his release on bail on 26 October 2019. However, the bailor himself was arrested for drug trafficking and this caused the accused to desire to take drugs again.[note: 47] However, Mr Firdaus was not called to give corroborative evidence at trial.

(b)     The accused also mentioned that he visited a friend and saw some people taking drugs and this caused him to have the urge to do the same. However, this contention was bereft of particulars. The accused was unable to provide the friend’s name[note: 48] or the date on which this incident occurred[note: 49].

70     All in all, the accused was unable to provide a consistent account of why he decided to purchase 100 tablets of MDMA from Boy and many of the accounts he provided could not be believed.

(C)   Source of funds

71     The accused was also unable to satisfactorily explain how he was able to afford the drugs which he purchased, if he did not intend to sell them.

72     In his police statements, the accused stated that he was unemployed and that his bank accounts had been frozen since he was arrested in April 2019 for other drug offences.[note: 50] In these circumstances, he only had two sources of income.

(a)     His mother or sister would provide him $100 in cash each week.[note: 51]

(b)     He also used an ATM card that his mother had provided him to withdraw a total of $200.[note: 52] He also stated that he was embarrassed at having to use his mother’s money.

73     At trial, the accused took a different position. He claimed that he, in fact, had four sources of income.

(a)     A weekly allowance of $100 from his mother or sister.

(b)     Cash withdrawn from his mother’s ATM card. In this regard, the accused was evasive at trial about the number of times he withdrew money. He first stated he could not remember, before moving to “[q]uite a few times” and finally settling at four times.[note: 53] He also initially refused to commit to a position on how much he withdrew, stating that “[i]t depends on the situation”.[note: 54] When pressed for an estimate, the accused stated it would be $300 each time before finally adding that there was one occasion when he withdraw $600.[note: 55]

(c)     The sale of vape products. According to the accused, he purchased vape products from Boy on multiple occasions.[note: 56] However, he could not be specific about the number of times he bought vape products from Boy.[note: 57] He also could not say how much he earned from selling vape products.[note: 58] As mentioned earlier, this position was entirely different from his police statements where he only identified two occasions on which he purchased vape products from Boy: see [45(a)], above.

(d)     He also stated that Firdaus loaned him “two, three hundred dollars”.[note: 59] He later changed his position by stating that this sum was a gift, not a loan.[note: 60] Again, Firdaus was not called to give evidence.

74     It was therefore clear that the accused had been inconsistent with his sources of income. At trial, he gradually developed both the number of his income sources as well as the amount of monies he had access to. I had no hesitation in rejecting his account at trial regarding his sources of funds. I regarded the account the accused provided in his police statements as generally being closer to the truth. This would mean that the estimated funds he had during the period he was out on bail should be in the region of $900. Given that he would have to pay for his day-to-day expenses from this sum, the accused was unable to properly explain how he was able to afford paying $800 for 100 MDMA tablets if he did not intend to recover some funds by selling the tablets.

(D)   Attempted sale of MDMA tablets

75     Admitted into evidence were incriminating messages exchanged between the accused and an acquaintance identified as “Robin”. These messages were dated 27 November 2019, which was just several days before the accused was arrested. From the tenor of these messages, it appeared the accused was trying sell Robin MDMA tablets.

76     At trial, the accused explained that it was Robin who was pestering the accused to sell him MDMA tablets. In order to put Robin off, the accused quoted Robin a “ridiculously high price”.[note: 61] However, a plain reading of the messages in fact suggested that Robin had initially rejected the accused’s offer to sell him MDMA tablets and the accused had tried to persuade Robin to purchase the tablets.[note: 62]

Accused:

Bro u got the pic I sent

[voice message sent]

Robin:

Don’t want bro

 

Next one I will take

Accused:

U got new lobang already ah….

Robin:

No bro.

 

That fellow nvr contact me yet

Accused:

Oohh...coz of tat frog I bought already sia frm my friend

Robin:

Ok. Then Tmr I meet u take samples. If can I take 500

[Emphasis added.]



77     It must be recalled that, contrary to the message sent by the accused, the accused had not in fact yet placed his order for 100 tablets of MDMA. He did so on 30 November or 1 December 2019. [note: 63] However, this did not detract from the overall tenor of the message which suggested that the accused was trying to persuade Robin to purchase MDMA from him.

78     The idea of Robin pestering the accused to sell Robin MDMA tablets (rather than the accused trying to sell Robin MDMA tablets) was also not the account the accused provided to the police. In his police statements, the accused merely gave the following account.[note: 64]

Photograph 3 is for the guy who had wanted to buy “E” tablets from me, but I did not sell him as he felt it was too expensive. I have never sold “E” tablets to him before. He knew I had ways to get “E” tablets from our conversation in a club long ago.

79     Finally, at a subsequent point of the trial, the accused changed his position completely. He suggested that the “frog” in the messages did not refer to MDMA tablets but to a vape product.[note: 65] The accused also stated that he was confused when the investigation officer first showed him the messages.[note: 66]

80     I rejected the notion that the accused was trying to sell Robin a vape product instead of MDMA tablets. This suggestion was made at a very belated stage and was, in my judgment, an afterthought, an attempt to minimise the accused’s involvement with drugs. I also rejected the suggestion that it was Robin who pestered the accused to sell Robin MDMA pills. This was wholly inconsistent with a plain reading of the text messages. I accepted the Prosecution’s position that the messages, in fact, related to an attempt by the accused to sell Robin MDMA pills.

81     Viewing all of the above factors holistically, I found that the accused failed to establish the Consumption Defence on a balance of probabilities.

82     Given that the accused intended to possess 100 tablets of MDMA and the accused’s inability to establish on a balance of probabilities the Consumption Defence, I found that the accused’s intended act was criminal. The accused’s intended act would constitute an offence under section 5(1)(a) read with section 5(2) of the MDA.

Were there sufficient acts by the accused person in furtherance of his intention?

83     The last step in the Han Fang Guan framework was to ascertain if an offender of an attempt took “sufficient acts” to further his criminal intention. This is necessary “to avoid penalising mere guilty intentions”: Han Fang Guan (at [108(b)]).

84     On this issue, the Defence was wholly incorrect to argue that the accused’s acts were “only limited to ordering the tablets”.[note: 67] As I have explained earlier (at [59], above), the accused performed the following acts.

(a)     He placed an order to purchase 100 MDMA tablets.

(b)     He made payment for the tablets.

(c)     He arranged for the tablets to be delivered.

(d)     He went to the Drop Off Point with the intention of taking delivery of the tablets that he had ordered and did take delivery of the white plastic bag.

85     In my judgment, the acts that the accused performed was more than sufficient to constitute an attempt. Indeed, the present case was similar to that in Mas Swan where the Court of Appeal held (at [44]) that the offender “had done everything possible to complete the offence”. In the present case, the accused had also done everything possible to complete an offence of possession of 100 tablets of MDMA for the purpose of trafficking. The only reason he was not guilty of the MDMA Trafficking Charge was because the wrong set of drugs was delivered to him.

Conclusion

86     In conclusion of this part, I held that the answers to the questions set out in the Han Fang Guan framework were all in the affirmative. Accordingly, it was appropriate to alter the MDMA Trafficking Charge to the Attempted MDMA Trafficking Charge on terms as proposed by the Prosecution (see [48], above). Pursuant to section 128 of the Criminal Procedure Code 2010 (“CPC”), I altered the charge accordingly.

87     As required under that provision, the Attempted MDMA Trafficking Charge was read and explained to the accused. I called on the accused to enter his plea. After consulting with the Defence counsel, the accused maintained his original plea of not guilty. He also confirmed that he did not wish to call any new witness or recall any witness in relation to the Attempted MDMA Trafficking Charge.

88     I was satisfied that the Prosecution had proven the elements of the Attempted MDMA Trafficking Charge against the accused beyond reasonable doubt. In the premises, I found the accused guilty of the Attempted MDMA Trafficking Charge and convicted him accordingly.

The THC Possession Charge and the Drug Utensils Charge

89     The accused did not challenge the THC Possession Charge and the Drug Utensils Charge. Nevertheless, I will briefly address these charges for completeness.

90     As regards the THC Possession Charge, the accused admitted that he was in possession of a packet of vegetable matter that was subsequently analysed and found to contain tetrahydrocannabinol.[note: 68] He also admitted at trial that he knew that it contained cannabis.[note: 69]

91     As regards the Drug Utensils Charge, the accused admitted that he was in possession of the spoon, straw, improvised bottle, glass pipe, aluminium foil, cut straws and lighters set out in the charge.[note: 70] He also admitted that they were intended to be used for consumption of controlled drugs.[note: 71]

92     I was satisfied that the Prosecution had proven the elements of the THC Possession Charge and the Drug Utensils Charge against the accused beyond reasonable doubt. Accordingly, I convicted him of these charges.

Orders Made After Trial

93     For the foregoing reasons, I made the following orders at the close of trial:

(a)     I acquitted the accused of the Methamphetamine Possession Charge and the Diamorphine Possession Charge.

(b)     I altered the MDMA Trafficking Charge to the Attempted MDMA Trafficking Charge and convicted the accused of the said Charge.

(c)     I convicted the accused of the THC Possession Charge and the Drug Utensils Charge.

Sentencing

94     After I convicted the accused of the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge, the accused subsequently pleaded guilty to a further two charges. The first was for consumption of methamphetamine, an offence under section 8(b)(ii) of the MDA (the “Methamphetamine Consumption Charge”). The second was for possession of a scheduled weapon, an offence under section 7(1)(a) of the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 2013 Rev Ed) (the “Offensive Weapon Charge”).

95     These charges were on the following terms.

Methamphetamine Consumption Charge

You… are charged that you, on or before 16 April 2019, in Singapore, did consume a Specified Drug listed in The Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, methamphetamine, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed),

and further, that you, before the commission of the said offence, had been convicted on 13 December 2010 in District Court 19 (DAC23784/2010), for an offence of Consumption of a Specified Drug, to wit, Morphine, under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), and punished under Sec 33A(1) of the said Act with 5 years imprisonment and 3 stokes of the cane, for which conviction and punishment has not been set aside to date, and you shall now be liable for punishment under Sec 33A(2) of the said Act.

Offensive Weapon Charge

You… are charged that you, on the 03th day of December 2019, at or about 1.00 a.m., at Blk 435B Bukit Batok West Avenue 5 drop off point, Singapore, who, otherwise than for a lawful purpose, has in your possession any scheduled weapon, to wit, a sword with 30 centimetres blade and you have thereby committed an offence punishable under Section 7(1)(a) of the Corrosive and Explosive Substances and Offensive Weapons Act, Chapter 65.

96     The accused also consented to have another five charges taken into consideration for the purpose of sentencing.

(a)     Three charges for drug possession, offences under section 8(1) of the MDA.

(b)     One charge for possession of drug utensils, an offence under section 9 of the MDA.

(c)     One charge for failing to provide his urine sample, an offence under section 31(2) of the MDA.

Facts

97     The facts relevant to the two charges to which the accused pleaded guilty were as follows. The accused accepted these facts without qualification.

The Methamphetamine Consumption Charge

98     On 16th April 2019, the accused was arrested on suspicion of having committed drug offences. Subsequently, he provided two bottles of his urine sample which were sent for analysis. Upon analysis, the accused’s urine samples were found to contain methamphetamine.

99     The accused admitted that he had smoked “ice” (a street name for methamphetamine) prior to his arrest.

The Offensive Weapon Charge

100    On 3 December 2019, the accused was arrested by CNB officers. A search was conducted and a cane sword with blade of 30 cm was seized from his backpack.

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101    Investigations revealed that the accused found the cane sword at a rubbish chute under his block two days before his arrest. The accused took the cane sword home because he wanted to display it. He subsequently brought the cane sword out on 3 December 2019 as he intended to sell it to a friend.

Prescribed penalties

102    The prescribed penalties for the offences for which the accused was convicted were as follows.

The Attempted MDMA Trafficking Charge

Imprisonment for a term not less than ten years and not more than 30 years; and not less than ten strokes and not more than 15 strokes of the cane.

The THC Possession Charge

Maximum: ten years’ imprisonment or $20,000 fine or both.

Minimum for a second or subsequent offence: two years’ imprisonment

The Drug Utensils Charge

Maximum: three years’ imprisonment or $10,000 fine or both

The Methamphetamine Consumption Charge

Imprisonment for a term of not less than seven years and not more than 13 years; and not less than six strokes and not more than 12 strokes of the cane.

The Offensive Weapon Charge

Imprisonment for a term not exceeding five years; and not less than six strokes of the cane.



Antecedents

103    The accused’s antecedents are set out below. He accepted these antecedents as correct.

Date of Conviction

Offence

Sentence

7 September 2001

Drug consumption

12 months’ imprisonment

Drug consumption

TIC

Aggregate

12 months’ imprisonment

17 March 2003

Attempted drug possession for the purpose of trafficking

Six years’ imprisonment and five strokes of the cane

Drug consumption

Three years’ imprisonment

Drug possession

Two years’ imprisonment (concurrent)

Drug possession

TIC

Possession of drug utensils

Drug consumption

Aggregate

Nine years’ imprisonment and five strokes of the cane

13 December 2010

Drug possession for the purpose of trafficking

Seven years’ imprisonment and five strokes of the cane

Drug possession for the purpose of trafficking

Seven years’ imprisonment and five strokes of the cane (concurrent)

Drug consumption

Five years LTI imprisonment and three strokes of the cane

Drug possession

Three years’ imprisonment (concurrent)

Drug possession for the purpose of trafficking

TIC

Drug possession for the purpose of trafficking

Drug possession for the purpose of trafficking

Possession of drug utensils

Drug consumption

Drug consumption

Failing to report for urine test

Failing to report for urine test

Aggregate

12 years’ imprisonment and 13 strokes of the cane



Prosecution’s submissions on sentence

104    The Prosecution urged this court to impose the following sentences.

The Attempted MDMA Trafficking Charge

11 to 12 years’ imprisonment (consecutive) and 10 strokes of the cane

The THC Possession Charge

3.5 to four years’ imprisonment (consecutive)

The Drug Utensils Charge

Three to four months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (concurrent) and six strokes of the cane

Aggregate

14.5 to 16 years’ imprisonment and 22 strokes of the cane



105    As regards the Attempted MDMA Trafficking Charge, the Prosecution highlighted that the present offence was the accused’s third conviction for a trafficking offence. The accused was previously convicted in 2003 and 2010 of drug trafficking or attempted drug trafficking offences. In these circumstances, the Prosecution argued that the principles of escalation and specific deterrence would apply. For these reasons, the Prosecution submitted that a one to two year uplift from the mandatory minimum sentence should be imposed.

106    As regards the THC Possession Charge, the accused was similarly convicted of drug possession offences in 2003 and 2010. Again, the principles of escalation and specific deterrence were relevant. The Prosecution sought a half to one year uplift from the accused’s previous sentence of 3 years’ imprisonment.

107    As regards the Drug Utensils Charge, the Prosecution sought three to four months’ imprisonment in the absence of similar of antecedents.

108    As regards the Methamphetamine Consumption Charge, the Prosecution sought the mandatory minimum sentence of seven years’ imprisonment and six strokes of the cane.

109    As regards the Offensive Weapon Charge, the Prosecution submitted that the median sentence for such offences, based on data from the Sentencing Information Repository data, was 6 months’ imprisonment with the mandatory minimum of six strokes of the cane. The Prosecution sought a similar sentence for this offence.

110    Finally, the Prosecution took the position that, having regard to section 307(1) of the CPC and the principle of totality, the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge should run consecutively.

Defence’s mitigation and submissions on sentence

Mitigation

111    In mitigation, the Defence took the following points.

(a)     The accused was genuinely remorseful and had pleaded guilty to the Methamphetamine Consumption Charge and the Offensive Weapon Charge.

(b)     The accused cooperated with the authorities at all times.

(c)     The accused should be accorded some compassion on medical grounds. According to a medical report filed by the Defence, the accused was, at the time of sentencing, suffering from microscopic haematuria (a medical condition in which urine contains small amounts of blood), left renal stone, lower urinary tract symptoms, urinary tract infection, and voiding dysfunction (an inability to fully discharge urine).

Submissions on sentence

112    Insofar as sentence was concerned, the Defence generally agreed with the Prosecution’s submissions. The only areas of disagreement was in relation to the sentence for the Attempted MDMA Trafficking Charge and which sentences should run consecutively.

The Attempted MDMA Trafficking Charge

Ten years’ imprisonment (consecutive) and ten strokes of the cane

The THC Possession Charge

3.5 to four years’ imprisonment (concurrent)

The Drug Utensils Charge

Three to four months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (consecutive) and six strokes of the cane

Aggregate

Ten years and six months’ imprisonment and 22 strokes of the cane



113    As regards the Attempted MDMA Trafficking Charge, the Defence highlighted that the accused’s last sentence for a drug trafficking charge, in 2010, was seven years’ imprisonment. This represented a one year uplift from his sentence for a similar charge in 2003. The mandatory minimum sentence applicable to the Attempted MDMA Trafficking Charge now required a three-year uplift from his last sentence in 2010. In the view of the Defence, such an uplift would be more than sufficient to satisfy the principle of escalation and specific deterrence. Accordingly, no more than the mandatory minimum sentence should be imposed in respect of this offence.

114    As to the running of the sentences, the Defence took the position that, save for the Methamphetamine Consumption Charge, all the other offences were part of a single transaction. As the law requires at least two sentences to run consecutively, the Defence urged this court to run the sentences for the Attempted MDMA Trafficking Charge and the Offensive Weapon Charge consecutively with the other sentences running concurrently. This would, in the Defence’s view, be consonant with the totality principle.

Decision on sentence

The Attempted MDMA Trafficking Charge

115    Insofar as the Attempted MDMA Trafficking Charge was concerned, I agreed with the Prosecution that an uplift from the mandatory minimum sentence would be appropriate. In this regard, three points were pertinent.

116    To begin with, and as I have explained above, the accused had done everything possible to complete the offence: see [85], above. This was not a case where an offender had taken only preliminary or partial steps to commit the offence. The only reason why the MDMA Trafficking Charge was not constituted was something that had nothing to do with the accused’s intentions or actions – he was sent the wrong set of drugs. His culpability was therefore not diminished by the fact that he was merely guilty of an attempt.

117    Next, the Prosecution was correct in pointing out that the present conviction was the accused’s third conviction for a drug trafficking or attempted drug trafficking offence. The provision under which the accused was punished – section 33(4A)(i) of the MDA – was applicable for any repeat offending. In Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (at [29]), the Court of Appeal held that “the full spectrum of possible sentences should be utilised” in sentencing. Generally, this should mean that the mandatory minimum sentence should be reserved for the least severe of cases contemplated under the sentencing regime. In the present case, the mandatory minimum sentence should be reserved for cases where the offender had only repeated the offence once, unless compelling mitigating factors present themselves.

118    Finally, while it was correct that the mandatory minimum sentence represented a significant uplift from the accused’s last sentence of seven years’ imprisonment, this was consistent with Parliamentary intent. The present punishment provision – section 33(4A)(i) of the MDA – was introduced via the Misuse of Drugs (Amendment) Bill (Bill No. 27/2012). Prior to this Bill, there was no statutorily mandated enhanced punishment for repeat drug trafficking. It was under these circumstances that the accused was sentenced to seven years’ imprisonment for his last drug trafficking offence even though it was a repeat offence. In introducing enhanced punishment for repeat drug trafficking, Parliament was concerned with certain challenges facing Singapore in the trafficking and use of illicit drugs: Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89. In particular, the then Deputy Prime Minister and Minister for Home Affairs, Mr Teo Chee Hean, explained that “[t]he drug problem in our immediate vicinity is very real. Globally, new psychoactive substances are also being developed so rapidly that law enforcement agencies are having difficulties dealing with them effectively. These new psychoactive substances mimic effects of controlled drugs such as amphetamines, cocaine and cannabis and have the potential to cause as much, if not more harm.” To address these issues, Parliament, among other things, introduced enhanced sentences for repeat drug trafficking. Accordingly, it would be consistent with Parliament’s intent that the sentence for the Attempted MDMA Trafficking Charge be substantially higher than the accused’s last drug trafficking sentence.

119    Insofar as mitigating factors were concerned, the Defence submitted that the accused cooperated with the authorities. The Prosecution did not deny this. Nevertheless, the fact remained that the accused chose to challenge the charge when it was read and explained to him: see [87], above. In these circumstances, the weight to be ascribed to this factor was attenuated.

120    Turning to the Defence’s plea for compassion on account of the accused’s medical conditions, the relevant principles set out by the High Court in Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 (“Chew Soo Chun”) (at [38] – [39]) are as follows.

(a)     Ill health is relevant to sentencing in two ways.

(b)     First, it is a ground for the exercise of judicial mercy. Judicial mercy is an exceptional recourse available for truly exceptional cases and which will likely result in an exceptional sentence. Where mercy is exercised, the court is compelled by humanitarian considerations arising from the exceptional circumstances to order the minimum imprisonment term or a non-custodial sentence where appropriate.

(c)     Second, ill health exists as a mitigating factor. The cases where ill health will be regarded as a mitigating factor include those which do not fall within the realm of the exceptional but involve markedly disproportionate impact of an imprisonment term on an offender by reason of his ill health. The court takes into account the fact that ill health may render an imprisonment term that will not otherwise be crushing to one offender but may be so to another.

(d)     In all other cases, ill health is irrelevant. It may be that the offender has a condition or several conditions, but unless he can satisfy the tests for exercising judicial mercy or for mitigating a sentence because of disproportionate suffering or decreased culpability, there is no proper basis to vary the sentence.

121    In the present case, the accused’s medical conditions were irrelevant for the purpose of sentencing. This was so for the following reasons.

(a)     Counsel did not argue that the accused’s ill health was a ground to exercise judicial mercy. Indeed, this was correct. Situations in which judicial mercy may be exercised include those where the offender was suffering from a terminal illness and where the offender was so ill that a sentence of imprisonment would carry a high risk of endangering his life. It would also be possible to exercise judicial mercy in other situations that are equally grave: Chew Soo Chun (at [27]). The accused’s medical conditions did not approach that magnitude of severity.

(b)     Moreover, the accused’s conditions were not so serious that they should carry mitigating weight. In this regard, the question was “whether the offender faces far greater suffering than the usual hardship in serving a term of imprisonment… generally, it is constituted by a risk of significant deterioration in health or a significant exacerbation of pain and suffering”: Chew Soo Chun (at [34]).

(c)     In the present case, the accused suffered from conditions relating to his kidney and urine: see [111(c)], above. None of these conditions meant that the accused faced far greater suffering than the usual hardship in serving a term of imprisonment. Indeed, there was no evidence that Prisons did not have the ability to manage or treat these medical issues. Similarly, these was no argument that these issues would be exacerbated by prison conditions.

122    Having regard to all of the above considerations, I imposed a sentence of 11 years’ imprisonment and ten strokes of the cane for the Attempted MDMA Trafficking Charge.

The THC Possession Charge

123    Insofar as the THC Possession Charge was concerned, both parties agreed that a sentence of 3.5 to four years’ imprisonment would be appropriate. I accepted this position. The THC was contained in 0.93 gram of fragmented vegetable matter which was not so significant as to be aggravating. Insofar as aggravating factors were concerned, the accused was convicted in 2003 and 2010 of drug possession. The present offence was therefore his third conviction for drug possession. In the last instance in 2010, the accused was sentenced to three years’ imprisonment for drug possession. Further, there were another three charges for drug possession to be taken into consideration for sentencing purposes. As regards mitigating factors, it was again the case that the weight to be accorded to the fact that the accused had cooperated with the authorities must be circumscribed as he had chosen to claim trial to this charge, even if he did not actively challenge this charge at trial. Taken together, I imposed a sentence of three years and six months’ imprisonment for this offence.

The Drug Utensils Charge

124    As regards the Drug Utensils Charge, both parties agreed that a sentence of three to four months’ imprisonment would be appropriate in the absence of similar antecedents. This was supported by the case of Effrizan Kamisran v Public Prosecutor [2020] 5 SLR 757 where the High Court upheld a sentence of three months’ imprisonment imposed by the District Court for a similar charge. I accepted this position. Accordingly, I imposed a sentence of three months’ imprisonment.

The Methamphetamine Consumption Charge

125    As regards the Methamphetamine Consumption Charge, the accused was liable for enhanced punishment as he had a prior conviction for LT1 drug consumption in 2010. On that occasion, he was sentenced to five years’ imprisonment and three strokes of the cane. In the present case, both parties agreed that it would only be necessary to impose the mandatory minimum sentence. I accepted this. The circumstances of the offending did not disclose any aggravating factors. Accordingly, I imposed a sentence of seven years’ imprisonment and six strokes of the cane. As I had imposed the mandatory minimum sentence, there was no room to apply a sentencing reduction on account of the accused’s plea of guilt for this charge.

The Offensive Weapon Charge

126    In the present case, the accused was found in unauthorised possession of a cane sword. However, there were no aggravating factors. He did not display the sword publicly or use it to intimidate or hurt someone. In Public Prosecutor v Teo Kok Wah [2022] SGDC 136, the District Court accepted (at [22]) that the median sentence for such an offence was six months’ imprisonment (the offender in that case was not liable to the mandatory caning of six strokes of the cane). The District Court in Public Prosecutor v Saseetharen s/o Subramaniam [2023] SGDC 205 described (at [21]) a sentence of six months’ imprisonment and six strokes of the cane for such an offence as “the usual tariff”. In my judgment, there was no reason to depart from the usual sentence.

127    Counsel for the Defence urged me to apply a 30% sentence reduction on account of the fact that the accused had pleaded guilty. I declined to do so. This was because the usual tariff of six months’ imprisonment and six strokes of the cane was established for plead guilty matters. The sentence would be higher in cases where an offender was convicted after trial. To apply a further reduction would give too much weight to the fact that the accused had pleaded guilty. As stated in the “Guidelines on Reduction in Sentences for Guilty Pleas” issued by the Sentencing Advisory Panel (at [10]), “the relevant reductions… are not intended to apply over and above the existing sentencing guidelines or precedents in cases where the offender has pleaded guilty” (emphasis in original).

128    Accordingly, I imposed a sentence of six months’ imprisonment and six strokes of the cane for this offence.

Aggregate sentence

129    Finally, I turn to the issue of how the sentences should run. Under section 307(1) of the CPC, this court must order the sentences for at least two offences to run consecutively. Subject to this limitation, how the sentences should run should be determined by the application of the one-transaction rule and the totality principle.

130    The one-transaction rule requires that where two or more offences are committed in the course of a single transaction, all sentences in respect of those offences should be concurrent rather than consecutive. The rationale for this rule was explained by the High Court in Mohamed Shouffee bin Adam v Public Prosecutor [2014] SGHC 34 (“Mohamed Shouffee”) (at [30] – [31]) as follows.

The better articulation of the rationale for the rule is found in the principle that consecutive sentences are not appropriate if the various offences involve a “single invasion of the same legally protected interest”… On this formulation, the real basis of the one-transaction rule is unity of the violated interest that underlies the various offences. Where multiple offences are found to be proximate as a matter of fact but violate different legally protected interests, then they would not, at least as a general rule, be regarded as forming a single transaction.

While it would be helpful to have regard to factors such as proximity of time, proximity of purpose, proximity of location, continuity of design and unity of protected interests, this exercise must ultimately be undertaken as a matter of common sense: Mohamed Shouffee (at [40]).

131    In the present case, I regarded the Methamphetamine Consumption Charge as distinct from the others. This was because the Methamphetamine Consumption Charge was committed in April 2019 while the others were committed in December 2019. I also regarded the Offensive Weapon Charge as distinct from the others. This was because the Offensive Weapon Charge, being unrelated to drugs, violated a far different legal interest from the others. However, I regarded the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge as forming a single transaction. In this regard, I was cognisant that there were differences between them; it was possible to argue that they violated different protected interests. However, it was also possible to argue that these three offences did not reflect significantly increased culpability on the part of the accused. As the High Court in Mohamed Shouffee also explained (at [42]), another way to consider this issue is to determine whether the offences reflect increased culpability on the part of the offender:

The enquiry into whether there is an invasion of the same underlying interest looks at things from the perspective of the victim. But there is another way of approaching the ultimate question of how the offender should be punished and that is to view it from the perspective of the accused. On this premise, the imposition of consecutive sentences would be appropriate if the second (or other subsequent) offence reflects increased culpability on the accused’s part even where, as a technical matter, the multiple offences might form part of the same transaction.

On this view, it would be appropriate to view the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge as forming a single transaction.

132    Having regard to the above, the provisional options available to this court insofar as the running of sentences was concerned were as follows.

(a)     To run the sentences for the Attempted MDMA Trafficking Charge, the Methamphetamine Consumption Charge and the Offensive Weapon Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 18 years and six months’ imprisonment and 22 strokes of the cane.

(b)     To run the sentences for the Attempted MDMA Trafficking Charge and the Methamphetamine Consumption Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 18 years’ imprisonment and 22 strokes of the cane.

(c)     To run the sentences for the Attempted MDMA Trafficking Charge and the Offensive Weapon Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 11 years and six month’s imprisonment and 22 stokes of the cane.

133    In my judgment, none of these options were appropriate.

(a)     The options set out in [132(a)] and [132(b)] would result in a sentence that was too high and disproportionate to the accused’s overall offending. In my view, it would violate the first limb of the totality principle. This principle requires a sentencing court to determine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed: Mohamed Shouffee (at [54]). The most serious offence in the present case was the Attempted MDMA Trafficking Offence. Given the circumstances of the present offending, this offence would ordinarily attract about ten to 12 years’ imprisonment and ten to 12 strokes of the cane. An aggregate sentence of 18 years’ imprisonment and 22 strokes of the cane would be substantially above this.

(b)     The option set out in [132(c)] would be too lenient and disproportionate to the accused’s overall offending. It would also not serve the ends of specific deterrence. It must be recalled that in 2010, the accused was convicted of four charges. These comprise charges of drug possession for the purposes of trafficking, drug consumption and drug possession. He was sentenced to an aggregate sentence of 12 years’ imprisonment and 13 strokes of the cane. In the present case, the accused was convicted of five charges involving all of the above types of offences and more. For each type of drug offence which was committed both in 2010 and in the present case, I had imposed a higher individual sentence as compared to his sentence in 2010. This was for the purpose of specific deterrence. Having done so, it would be wholly incongruous that the aggregate term of imprisonment would be lower than that in 2010.

134    Accordingly, I departed from the one-transaction rule in the present case. I considered it condign to run the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge consecutively, even though they may possibly be considered to be part of the same transaction. As the High Court in Mohamed Shouffee explained (at [81(b)]:

The application of the one-transaction rule yields only a provisional exclusion. In certain circumstances, it may be necessary for the sentencing judge to impose two consecutive sentences even if they relate to a single transaction. This may, for instance, be so for such reasons as to give effect to a particular sentencing interest such as deterrence or to adequately capture the enhanced culpability of the offender or simply in order to ensure compliance with s 307(1) of the CPC. A sentencing judge who does this should articulate the reasons for it.

135    Running the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge consecutively, with all the other sentences running concurrently, would yield an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane. In my judgment, such a sentence would be condign and proportionate to the accused’s overall offending.

136    As a final check, I applied the totality principle to consider whether such an aggregate sentence was: (i) substantially above the normal level of sentences for the most serious offence; and (ii) crushing and not in keeping with the accused’s past record and future prospects. As to the first limb, while the aggregate sentence was above the normal level of sentences for the Attempted MDMA Trafficking Charge, it was not substantially and unreasonably so. On the contrary, it was reflective of the overall offending and the number of offences the accused had committed. As to the second limb, there was no reason to think that the aggregate sentence was crushing. It was also in keeping with the accused’s past record.

Conclusion on sentence

137    For the above reasons, I imposed the following sentences.

The Attempted MDMA Trafficking Charge

11 years’ imprisonment (consecutive) and ten strokes of the cane

The THC Possession Charge

Three years and six months’ imprisonment (consecutive)

The Drug Utensils Charge

Three months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (concurrent) and six strokes of the cane

Aggregate

14 years and six months’ imprisonment and 22 strokes of the cane



138    As the accused had been in remand for a significant period pending the conclusion of this matter, I ordered that his sentence be backdated to 16 April 2019 (date of his first arrest) and that his sentence should exclude the period when the accused was released on bail (being 26 October 2019 to 3 December 2019).

Conclusion

139    To summarise, after considering the evidence at trial, I convicted the accused of the Attempted MDMA Trafficking Charge, the THC Possession Charge, and the Drug Utensils Charge. I also convicted the accused of the Methamphetamine Consumption Charge and the Offensive Weapon Charge pursuant to his plea of guilt. Having considered all relevant factors and the submissions of parties, I imposed an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane.

140    I record my appreciation to counsel for their assistance in this matter.

[note: 1]Notes of Evidence, day 9, page 2, lines 9-14.

[note: 2]Notes of Evidence, day 9, page 7, lines 25-26.

[note: 3]Prosecution’s Further Closing Submissions, section III.

[note: 4]Prosecution’s Closing Submissions at [41(c)].

[note: 5]Notes of Evidence, day 9, page 7, line 15.

[note: 6]P28 at [33].

[note: 7]P28 at [35].

[note: 8]P27 at [26].

[note: 9]P25.

[note: 10]P26 at [13], P27 at [26], P28 at [43], P30.

[note: 11]P44.

[note: 12]Notes of Evidence, day 9, page 8, lines 24-25.

[note: 13]Notes of Evidence, day 5, page 21, line 23 to page 22, line 6.

[note: 14]Notes of Evidence, day 5, page 21, line 16.

[note: 15]Notes of Evidence, day 5, page 9, line 14.

[note: 16]Notes of Evidence, day 5, page 11, lines 4-6.

[note: 17]Notes of Evidence, day 5, page 12, lines 28-29, page 13, lines 5-6, page 14, lines 1-3, page 14, lines 25-26, page 20, lines 20-23.

[note: 18]Notes of Evidence, day 5, page 21, line 24.

[note: 19]Notes of Evidence, day 5, page 21, lines 25-26, line 28, lines 30-31, page 22, line 3, line 7-8, line 12.

[note: 20]Prosecution’s Closing Submissions at [44(b)].

[note: 21]Notes of Evidence, day 5, page 51, lines 12-14.

[note: 22]P34-A.

[note: 23]Notes of Evidence, day 9, page 10, lines 15-17.

[note: 24]P28 at [36].

[note: 25]Notes of Evidence, day 9, page 7, line 15.

[note: 26]P28 at [33].

[note: 27]P28 at [33 (A5)].

[note: 28]P32 at [79].

[note: 29]Notes of Evidence, day 9, page 7, lines 14-22.

[note: 30]P32-A, photographs 9-12.

[note: 31]P32-A, photographs 13-14.

[note: 32]Notes of Evidence, day 9, page 17, lines 11-20.

[note: 33]P32 at [71].

[note: 34]P32-D, photograph 2.

[note: 35]Notes of Evidence, day 9, page 23, lines 10-15.

[note: 36]Notes of Evidence, day 9, page 2, lines 18-23.

[note: 37]Notes of Evidence, day 9, page 11, lines 26-29.

[note: 38]Notes of Evidence, day 9, page 5, lines 4-5.

[note: 39]Notes of Evidence, day 9, page 6, lines 23-31.

[note: 40]P25.

[note: 41]Notes of Evidence, day 9, page 24, lines 8-11.

[note: 42]P28 at [43].

[note: 43]P28 at [43].

[note: 44]Notes of Evidence, day 10, page 19, line 20.

[note: 45]Notes of Evidence, day 10, page 19, line 22.

[note: 46]Notes of Evidence, day 10, page 22, lines 13-14.

[note: 47]Notes of Evidence, day 9, page 67, lines 7-12.

[note: 48]Notes of Evidence, day 9, page 67, line 26.

[note: 49]Notes of Evidence, day 9, page 68, line 2.

[note: 50]P26 at [8].

[note: 51]P45 at [16].

[note: 52]P26 at [9].

[note: 53]Notes of Evidence, day 9, page 49, lines 3-18.

[note: 54]Notes of Evidence, day 9, page 48, line 32.

[note: 55]Notes of Evidence, day 9, page 50, line 7.

[note: 56]Notes of Evidence, day 9, page 40, line 31.

[note: 57]Notes of Evidence, day 9, page 43, line 8.

[note: 58]Notes of Evidence, day 9, page 42, line 28.

[note: 59]Notes of Evidence, day 9, page 51, line 21.

[note: 60]Notes of Evidence, day 9, page 61, line 30.

[note: 61]Notes of Evidence, day 9, page 12, line 24.

[note: 62]P32-A, photo 3.

[note: 63]Notes of Evidence, day 9, page 2, lines 18-23.

[note: 64]P32 at [70].

[note: 65]Notes of Evidence, day 9, page 13, line 31.

[note: 66]Notes of Evidence, day 10, page 15, line 18.

[note: 67]Defence’s Reply to Prosecution’s Clarification for Further Closing Submissions at [9].

[note: 68]Statement of Agreed Facts at [6].

[note: 69]Notes of Evidence, day 10, page 36, lines 12 and 18.

[note: 70]Statement of Agreed Facts at [6].

[note: 71]Notes of Evidence, day 10, page 46, line 10.

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Driving without due care and attention – Grievous hurt"],"date":"2024-10-30","court":"District Court","case-number":"District Arrest Case No. 918156 of 2024","title":"Public Prosecutor v Mohamad Nazrulhaqim Bin Johari","citation":"[2024] SGDC 283","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32422-SSP.xml","counsel":["Jheong Siew Yin (Attorney-General's Chambers) for the Prosecution","Muhammad Aadil bin Dafir (I.R.B. Law LLP) for the Defence."],"timestamp":"2024-11-07T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Mohamad Nazrulhaqim Bin Johari

Public Prosecutor v Mohamad Nazrulhaqim Bin Johari
[2024] SGDC 283

Case Number:District Arrest Case No. 918156 of 2024
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jheong Siew Yin (Attorney-General's Chambers) for the Prosecution; Muhammad Aadil bin Dafir (I.R.B. Law LLP) for the Defence.
Parties: Public Prosecutor — Mohamad Nazrulhaqim Bin Johari

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Driving without due care and attention – Grievous hurt

30 October 2024

District Judge Shawn Ho:

Introduction

1       Mr Mohamad Nazrulhaqim Bin Johari pleaded guilty to one charge of riding without due care and attention. By failing to keep a proper lookout for other road users, his vehicle collided with another motorcycle and caused grievous hurt to two people.

2       The Defence sought a fine. It cited Erh Zhi Huang Alvan v Public Prosecutor (MA 9204 of 2022) where a fine was given when the victim suffered a traumatic amputation of the right little finger.

3       I disagreed with the Defence’s submissions for a fine.

4        Erh had to be placed in proper perspective.

5       First, while it was undisputed that permanent injury was caused to the victim in Erh, there was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work: Chen Song v Public Prosecutor [2024] SGHC 129 at [165].

6       The victim in Erh also suffered a right-sided clavicle fracture, though it was not apparent that there was any surgical intervention required for this injury. While the victim was given 57 days of hospitalisation leave, this included only one day of hospitalisation, as he was discharged the day after the accident occurred: Public Prosecutor v Hee Kwee Choy [2024] SGDC 230 at [56].

7       In the present case, there were multiple victims:

(a)     Grievous hurt was visited upon two victims — the 3rd victim suffered a right 5th metacarpal proximal shaft fracture to his right hand and was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave.[note: 1]

(b)     The 5th victim suffered a left pubic symphysis fracture.[note: 2]

(c)     The 2nd victim suffered injuries.[note: 3]

8       In addition to bodily injury, property damage was caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 4]

9       Second, Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165]. Erh’s case had no culpability factors.

10     In contrast, there was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

11     This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 5]

12     The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 6]

13     The Prosecution tried to distinguish Erh by stating that his sentence was based on the framework in Sue Chang (instead of Chen Song): Chen Song at [165] and [167].

14     However, as the High Court observed in Chen Song at [120], applying both frameworks would likely result in the same or similar outcomes. A similar observation was made by the High Court in Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [3] and [15] and in Loh Kaine Tong Nicholas v Public Prosecutor (HC/MA 9037/2023/01).

15     All things considered, Mr Mohamad Nazrulhaqim was imprisoned for 4 months and disqualified from driving for 5 years.

16     I set out my reasons. There was no appeal.

Charge

17     The Accused pleaded guilty to the following charge:

You, Mohamad Nazrulhaqim Bin Johari, Male/ 27 years old, Malaysian, are charged that you, on 8 June 2023, at or about 8.12 a.m., along Bukit Timah Expressway towards Woodlands, Singapore, did ride a Malaysia-registered motorcycle bearing registration number VHC5971, on a road without due care and attention, to wit, by failing to keep a proper lookout ahead for other road users, resulting in a collision with a Malaysia registered motorcycle bearing registration number VGD2971 who was ahead of you, and causing grievous hurt to the rider of VGD2971, namely, one Siva Narayanan, and your pillion, namely, one Muhammad Izzatfahmi Bin Mohd Noh, by such driving, you have thereby committed an offence under Section 65(1)(a) punishable under Section 65(3)(a) read with Section 65(6)(d) of the Road Traffic Act 1961 (“the Act”).[note: 7]

18     Two charges were taken into consideration for sentencing. They were for riding without due care and attention under s 65(1)(a) punishable under s 65(4)(a) of the Act[note: 8] and under s 65(1)(a) punishable under s 65(5)(a) of the Act.[note: 9]

Statement of facts

I. Introduction

19     The accused is Mohamad Nazrulhaqim Bin Johari, a 27-year-old male Malaysian (“Accused”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number VHC5971 (“Motorcycle VHC5971”).[note: 10]

20     The victims are:

(a)     Lee Pei Jin, Joanna, a 36-year-old female Singaporean (“1st victim”). At the time of the accident, she was driving a motorcar bearing the registration number SNG8856S.

(b)     Yogeswaran A/L Doraisamy, a 34-year-old male Malaysian (“2nd victim”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number JVK6719.

(c)     Siva Narayanan, a 43-year-old male Malaysian (“3rd victim”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number VGD2971.

(d)     Chong Chin Lin, a 68-year-old male Singaporean (“4th victim”). At the time of the accident, he was driving a taxi bearing the registration number SHB6368U.

(e)     Muhammad Izzatfahmi Bin Mohd Noh, a 22-year-old male Singaporean (“5th victim”). The 5th victim is a friend of the Accused, and he was riding pillion on the Motorcycle VHC5971 at the time of the accident.[note: 11]

II. Facts relating to the 1st charge (DAC 918156 2024)

21     On 8 June 2023, at or about 8.12 a.m., the Accused was riding the Motorcycle VHC5971 with the 5th victim as pillion on the second lane of a four-lane road along the Bukit Timah Expressway towards Woodlands. The Accused failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, which had been travelling in front of the Accused, causing the Accused’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, the Accused also collided into the rear and side of the 2nd victim’s motorcycle, which had also been travelling in front of him. In so doing, the Accused had ridden his motorcycle on a road without due care and attention.[note: 12]

22     The impact of the collision caused the 2nd victim to fall, and the 3rd victim to collide into the taxi driven by the 4th victim on the rightmost lane. The Accused lost control of the Motorcycle VHC5971 which slid forward and resulted in both the Accused and the 5th victim colliding into the rear of the motorcar driven by the 1st victim, who had just completed a lane change from the rightmost lane to the second lane of the Bukit Timah Expressway towards Woodlands.[note: 13]

23     At the time of the accident, the weather was fine, the road surface was dry, the traffic flow was moderate, and visibility was clear.[note: 14]

24     The accident was caught on in-car camera footages of the 1st victim (Annex A) and the 4th victim (Annex B).[note: 15]

25     As a result of the accident, grievous hurt was caused to the 3rd victim and the 5th victim, who were both conveyed to the Khoo Teck Puat Hospital (“KTPH”) for treatment. In particular:

(a)     The 5th victim suffered: (i) a left pubic symphysis fracture; (ii) full thickness laceration to his left big toe; and (iii) multiple abrasions to his body.

(b)     The 3rd victim suffered: (i) a right 5th metacarpal proximal shaft fracture to his right hand; (ii) multiple superficial abrasions over his left hand, wrist, forearm and toes; and (iii) full thickness abrasion wounds over his right knee and left elbow. The 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.

(c)     Neither the 5th victim nor the 3rd victim suffered from permanent disabilities as a result of the accident.

(d)     The respective medical reports of the 5th victim and the 3rd victim are enclosed at Annex C and Annex D.[note: 16]

26     In addition to bodily injury, property damage was also caused to the 3rd victim’s Malaysia-registered motorcycle bearing the registration number VGD2971. In particular, the said motorcycle sustained cracks, and the right- side mirror was knocked off.[note: 17]

27     The Accused initially claimed that the accident was attributable to an unknown car travelling on the rightmost lane which, by appearing to want to make a left lane change, caused the Accused to be fearful and he chose to accelerate instead of braking to avoid the said car. However, police investigations revealed no objective evidence supporting the Accused’s claim of the said unknown car.[note: 18]

28     Instead, the fact remains that the 2nd victim and 3rd victim were travelling in front of the Accused, and this would have been obvious to the Accused. By failing to keep a proper lookout ahead while riding the Motorcycle VHC5971 and colliding into, inter alia, the 3rd victim who was travelling ahead, the Accused had ridden the Motorcycle VHC5971 on a road without due care and attention, and caused grievous hurt to his pillion ride, the 5th victim, and the 3rd victim, by such driving. Accordingly, the Accused had committed an offence under s 65(1)(a) of the Road Traffic Act 1961 which is punishable under s 65(3)(a) read with s 65(6)(d) of the said Act.[note: 19]

III. TIC charges

29     The Accused also faces two other TIC charges, in particular:

(a)     The 2nd Charge (DAC 918157 of 2024) concerns the offence under s 65(1)(a) punishable under s 65(4)(a) of the Road Traffic Act 1961 for driving without due care and attention on a road and causing hurt to the 2nd victim, who suffered superficial abrasions and was placed on 2 days of medical leave.

(b)     The 3rd Charge (DAC-918158-2024) concerns the offence under s 65(1)(a) punishable under s 65(5)(a) of the Road Traffic Act 1961 for driving without due care and attention on a road which resulted in his collision with the motorcar driven by the 1st victim and the 3rd victim’s collision with the taxi driven by the 4th victim. Fortunately, the 1st victim and the 4th victim did not sustain any injuries from the accident.[note: 20]

30     The Accused admits to the above, and stands charged accordingly.[note: 21]

Prescribed punishment

31     The prescribed punishment for causing grievous hurt under s 65(1) punishable under s 65(3)(a) read with s 65(6)(d) of the Act is:

(a)      s 65(3)(a): a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both;

(b)      s 65(6)(d): for an offender or a repeat offender in s 65(3)(a) or s 65(3)(b) – a driving disqualification for a period of not less than 5 years.

32     The two components of the overall sentence generally are not to be regarded as mutually compensatory. Hence, an increase in the fine or custodial sentence should not be taken to mandate the imposition of a reduced disqualification period than would otherwise have been ordered: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

33     While the different types of punishment are not fungible, there is a positive correlation between the length of the imprisonment term and/or quantum of the fine imposed and the period of the disqualification ordered. This direct relationship arises from the overlapping considerations of harm and culpability underlying the determination of the length of imprisonment or quantum of fine, and the length of the disqualification period: Chen Song at [141].

34     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

35     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

36     The Prosecution asked for 4 to 5 months’ imprisonment and a driving disqualification of 5 years.[note: 22]

37     The proposed custodial sentence was derived from applying the sentencing bands approach set out in Chen Song at [134] for careless driving offences causing grievous hurt punishable under s 65(3)(a) of the Act, under which the Prosecution submitted that the present offence is one of greater harm and lower culpability situated in the lower range of Band 2 (between 6 and 12 months’ imprisonment).[note: 23]

38     In particular:

(a)     Mr Mohamad Nazrulhaqim had a lower culpability as there is one applicable culpability factor, namely, his high degree of carelessness. It would have been apparent to him that the 3rd victim was travelling on the road in front of him. For Mr Mohamad Nazrulhaqim to have nevertheless driven directly into and collided with the 3rd victim, is indicative of his high degree of carelessness and inattention to the road.[note: 24]

(b)     Mr Mohamad Nazrulhaqim had caused greater harm as there are at least two applicable harm factors, namely, the multiple injuries that had been caused to two separate victims, and which injuries had impacted the victims’ quality of life. This is especially so for the 3rd victim who had to be warded for 4 days and placed on 69 days of hospitalisation leave for the injuries sustained from the accident.[note: 25]

(c)     The offence is situated at the lower range of Band 2, as there was some property damage caused to the 3rd victim’s motorcycle which were not extensive.[note: 26]

39     In light of the above, the Prosecution submitted that the proposed sentence of between 6 and 7 months’ imprisonment, which is at the lower range of Band 2, is appropriate. However, as the Chen Song sentencing bands framework applies to an offender who elects to claim trial, and Mr Mohamad Nazrulhaqim had indicated his guilty plea within Stage 1 of the Guidelines on Reduction in Sentences for Guilty Pleas, the Prosecution factored in a reduction of about 30% to arrive at a custodial sentence of between 4 and 5 months’ imprisonment.[note: 27]

Mitigation plea

40     The Defence asked for a fine of $4000 and driving disqualification of 5 years. Alternatively, a short detention order (“SDO”) of 2 weeks was sought.[note: 28]

41     Mr Mohamad Nazrulhaqim has been co-operative after his arrest and has facilitated with investigations. He has chosen to plead guilty early. He is deeply remorseful of his actions.[note: 29]

42     He has no related antecedents. This is his first brush with the law.[note: 30]

43     Additionally, he is 28 years old this year. His mother is critically ill and his father is suffering from cancer. He needs to financially support his parents, and an imprisonment term would greatly cripple the care of his parents who are dependent on him.[note: 31]

44     For the injuries suffered by the 3rd and 5th victims, the nature and severity of injury are not complex, the number of injuries is not excessive, no surgical intervention was necessary, the victims were not treated at high dependency wards or intensive care units and the location of the injuries were not at vulnerable locations.[note: 32]

45     The injuries caused to the victims are not permanent.[note: 33]

46     The impact of the injuries on the victims’ quality of life was not severe. The 3rd victim was warded for 4 days. It is unclear how many days the 5th victim was warded. Neither the 5th victim nor the 3rd victim suffered from permanent disabilities because of the accident and can carry out daily tasks and maintain their livelihoods.[note: 34]

47     Mr Mohamad Nazrulhaqim was on a motorcycle, the roads were clear, the accident occurred pre-peak hour traffic at 8.12am, there were no pedestrians on the road at the relevant time and there were no particular vulnerabilities. Hence, the potential harm is low.[note: 35]

48     In addition to bodily injury, property damage was also caused to the 3rd victim’s motorcycle. In particular, the motorcycle sustained cracks, and the right-side mirror was knocked off. The property damage as reflected above was minimal.[note: 36]

49     The primary harm factors are limited to 0 or 1 if we consider that there were 2 victims, and “lesser harm” has been caused by Mr Mohamad Nazrulhaqim.[note: 37]

50     Mr Mohamad Nazrulhaqim possesses a lower culpability. He did not exhibit any form of dangerous driving nor did he flout traffic rules or regulations. He did not possess a high degree of carelessness. There was no prolonged or sustained period of inattention but rather it was a momentary lapse of attention.[note: 38]

51     The culpability factors are limited to 0 or 1 and as such, Mr Mohamad Nazrulhaqim possesses a lower culpability.[note: 39]

52     The present offence is one of lesser harm and lower culpability that falls under Band 1 and as such a fine would be appropriate.[note: 40]

53     In Erh’s case, the victim suffered far more severe injuries such as (a) a traumatic amputation of the right little finger; and (b) a right-sided clavicle fracture. In comparison, in the present case, the victim’s injuries were less severe.[note: 41]

54     The victim in Erh suffered permanent injury in the form of an amputated right little finger. Here, there were no permanent injuries to the victims.[note: 42]

55     In the alternative, given that this was Mr Mohamad Nazrulhaqim’s first brush with the law and he is not a recalcitrant offender, a SDO of 2 weeks would be appropriate.[note: 43]

Sentencing

The Law

(1)   Legislative history of s 65 of the Road Traffic Act

56     As was observed by Sundaresh Menon CJ in Wu Zhi Yong v Public Prosecutor [2021] SGHC 261 at [15] (albeit in the related context of s 64 of the Act), the Road Traffic (Amendment) Act 2019 (Act 19 of 2019) (“Amendment Act”) envisaged a new scheme of penalties for careless or inconsiderate driving in a tiered structure calibrated according to the degree of hurt caused. This is codified in the Act as ss 65(2) to 65(5). The maximum punishments which may be imposed for each category of harm increase concomitantly with the seriousness of the harm caused; this translates into wider ranges of punishments where more serious harm is occasioned (Sue Chang v Public Prosecutor [2022] SGHC 176 at [38]).

57     For instance, where death is caused, s 65(2)(a) provides that a first-time offender is liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding three years or to both. In contrast, the residual category (where no actual physical harm is caused, but which includes cases of non-personal injury or potential harm) captured in s 65(5)(a) provides that a first-time offender is liable to a fine not exceeding $1,500 or to imprisonment for a term not exceeding six months or to both (Sue Chang at [38]).

58     By tiering the punishment provisions in accordance with the type of harm suffered, Parliament has given clear expression to the need to give explicit consideration to the outcomes that result from instances of careless or inconsiderate driving. This is a stark departure from the structure of s 65 of the pre-2019 Act, where there was a single range of punishment with no differentiation based on the type and/or degree of harm caused (Sue Chang at [39]).

59     In addition, while Parliament has retained the distinction between reckless or dangerous driving under s 64 of the Act and careless or inconsiderate driving under s 65 of the Act, this distinction has been made more pronounced through the refining of the punishment provisions. These two provisions reflect the differing circumstances under which an irresponsible driving offence can occur. The former offence (s 64) is regarded as being more serious than the latter (s 65), reflecting primarily the differing levels of culpability of the offenders. Accordingly, the current architecture of the Act concerning irresponsible driving offences tiers the punishment provisions according to both harm and culpability, not dissimilar to the Penal Code (Sue Chang at [40]).

(2)   Driving disqualification order

60     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

61     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

62     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

63     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Road Traffic Act.

Decision on sentence

64     For driving without due care or attention causing grievous hurt, the applicable case is Chen Song v Public Prosecutor [2024] SGHC 129.

Framework in Chen Song

65     A quantitative factors-based approach, where the indicative sentencing band is determined at the first step, based on the number of offence-specific harm and culpability factors is especially useful: Chen Song at [123].

66     “Lesser harm” is caused and the offender’s culpability is deemed as “lower culpability” where at most one harm or culpability factor applies in respect of each category: Chen Song at [123].

67     “Greater harm” would be caused and the offender’s culpability deemed as “higher culpability” where there are 2 or more harm and culpability factors respectively: Chen Song at [123].

68     This is a general guideline which is not to be applied mechanistically in every case. The foremost inquiry is to assess holistically whether the totality of the harm suffered by the victim should be classified as either “greater harm” or “lesser harm” and whether the offender’s culpability considered as a whole should be classified as either “lower culpability” or “higher culpability”: Chen Song at [123].

(1)   Harm factors

69     Primary harm factors are factors which pertain directly to the bodily injury suffered by the victim(s) in each case. These factors include:

(a)     the nature and location of the injuries;

(b)     the degree of permanence of the injuries; and

(c)     the impact of the injuries: Chen Song at [124].

70     The three broad primary harm factors are:

(a)      Nature and location of the injury: This factor focuses on the precise nature and the location of the injury. This requires a consideration of:

(i)       the nature and severity of injury (eg, simple or complex and extent of injury, etc);

(ii)       the number of injuries;

(iii)       whether surgical intervention was necessary (or whether the injuries were treated conservatively);

(iv)       the disposition of the victim post-surgery (eg, general ward, high dependency or intensive care unit); and

(v)       the location of the injury (eg, vulnerable location).

(b)      Degree of permanence: This factor considers whether the injury or injuries caused to the victim are permanent or transient. Permanent injuries include loss of a limb or permanent privation of the sight of either eye or the hearing of either ear, etc.

(c)      Impact of injury: This factor contemplates the impact of the injury on the victim’s quality of life. Here, considerations of:

(i)       the duration of stay in the hospital/rehabilitation centre;

(ii)       duration of any hospitalisation/medical leave;

(iii)       ability to carry out daily tasks and maintain livelihood; and

(iv)       duration of rehabilitation (if any), are relevant: Chen Song at [127].

71     Nevertheless, I bore in mind that there may be cases where even if two or more primary harm factors apply, if they present themselves to a limited degree, the court may nevertheless consider that “lesser harm” had been caused based on a holistic assessment of the harm caused: Chen Song at [127].

72     Secondary harm factors are unrelated to the physical injury suffered by the victim(s), but which nonetheless go towards the extent of harm caused in a particular case. These factors include:

(a)     property damage; and

(b)     potential harm: Chen Song at [125].

73     Consideration of actual harm focuses on the moment of a collision. Potential harm looks at the wider circumstances before and after a collision (Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [57]).

74     The level of potential harm may be assessed against facts such as the condition of the road, the volume of traffic or number of pedestrians actually on or which might reasonably be expected to be on the road at the relevant time, the speed and manner of driving, visibility at the relevant time, the type of vehicle, and any particular vulnerabilities (eg, a truck or car colliding into a motorcycle or pedestrian). It was observed that these relate to the circumstances of driving that could increase the danger posed to road users (Wu Zhi Yong at [36(a)]): Chen Song at [129].

75     It would only be appropriate to have regard to potential harm if there was a sufficient likelihood of the harm arising and this in turn should be assessed in the light of the gravity of the harm risked (Neo Ah Luan v Public Prosecutor [2018] 5 SLR 1153 at [67]): Chen Song at [129].

76     I was mindful that in assessing the level of harm or potential harm, the sentencing court should be careful not to double-count any factors which may already have been taken into account in assessing the level of culpability: Ye Lin Myint v Public Prosecutor [2019] 5 SLR 1005 at [58] (see also Andrew Ashworth, Sentencing and Criminal Justice (6th Ed, 2015, Cambridge University Press) at [4.3] and [4.5]).

77     Each primary harm factor would count as one offence-specific factor going towards harm. However, where a secondary harm factor presents itself in a significant manner, this should be considered in the determination of where the particular offence falls within the indicative sentencing band: Chen Song at [125].

78     In the present case, there were two primary harm factors — nature and location of the injury, and impact of injury.

79     For the nature and location of injury, the 3rd victim suffered:

(a)     a right 5th metacarpal proximal shaft fracture to his right hand,

(b)     multiple superficial abrasions over his left hand, wrist, forearm and toes; and

(c)     full thickness abrasion wounds over his right knee and left elbow.[note: 44]

(d)     He underwent a right knee and left elbow wound debridement on 10 June 2023.[note: 45]

80     The 5th victim suffered:

(a)     a left pubic symphysis fracture,

(b)     full thickness laceration to his left big toe; and

(c)     multiple abrasions to his body.[note: 46]

81     The victims’ injuries were not permanent. All wounds of the 5th victim were well-healed.[note: 47]

82     For the impact of the injuries, the 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.[note: 48]

83     There was a secondary harm factor as property damage was caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 49]

(2)   Culpability factors

84     A non-exhaustive list of factors which each constitute 1 offence-specific factor going towards culpability is as follows (Chen Song at [131]):

(a)      Any form of dangerous driving behaviour. For instance:

(i)       speeding;

(ii)       driving against traffic;

(iii)       driving when not fit to drive;

(iv)       driving under the influence of alcohol or drugs;

(v)       sleepy driving;

(vi)       driving while using a mobile phone;

(vii)       swerving in and out of lanes;

(viii)       using a vehicle in a dangerous fashion; and

(ix)       street racing.

(b)      Flouting of traffic rules and regulations. For instance:

(i)       failing to stop at a stop line;

(ii)       failing to conform to traffic signal;

(iii)       not forming up correctly to execute a turn;

(iv)       changing lanes across a set of double white lines/chevron markings; and

(v)       making an illegal U-turn/right turn.

(c)      High degree of carelessness: This is demonstrated where there was a prolonged or sustained period of inattention (as opposed to a momentary lapse of attention), and where the offender was deliberately cavalier about certain mitigatable risks. As stated in Sue Chang at [95], it would also be relevant to consider the extent to which the offender’s distraction was avoidable and the extent to which the offender’s misjudgment was reasonable.

85     There was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

86     This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 50]

87     The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 51]

(3)   Sentencing framework for careless driving offences causing grievous hurt punishable under s 65(3)(a)

88     We apply the following sentencing framework for careless driving offences causing hurt punishable under s 65(3)(a) where the offender elects to claim trial (Chen Song at [134]).

89     First, the court is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability” (Chen Song at [134(a)]).

90     Second, based on the number of offence-specific factors present, the court is to determine whether the harm caused is “lesser harm” or “greater harm” and whether the culpability of the offender is “lower culpability” or “higher culpability” and thereafter arrive at the sentencing band the offence falls within (Chen Song at [134(b)]).

91     “Lesser harm” is caused, and the offender’s culpability is deemed as “lower culpability” where there are 0–1 harm or culpability factors respectively. “Greater harm” is caused, and the offender’s culpability is deemed as “higher culpability” where there are 2 or more harm or culpability factors respectively (Chen Song at [134(b)]).

Band

Circumstances

Sentencing range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability

Or

Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



92     Third, after determining the indicative sentencing band that the offence falls within, the court should identify an indicative starting point sentence within that range, taking into account: (a) all the primary harm factors and the culpability factors identified; and (b) the secondary harm factors (Chen Song at [134(c)]).

93     Fourth, the court is to make adjustments to the starting point to take into account the usual gamut of offender-specific aggravating and mitigating factors (Chen Song at [134(d)]).

94     The High Court stated that with reference to the proposed sentencing bands for s 65(3)(a), the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present. Therefore, for Band 1 cases, fines would ordinarily be reserved for cases where 0–1 offence-specific harm and/or culpability factors are present (Chen Song at [137]).

95     A mandatory 5-year disqualification period applies for offences punishable under s 65(3), “unless the court for special reasons thinks fit to not order or to order otherwise”: s 65(6)(d) of the RTA (Chen Song at [138]).

96     In the present case, there were two primary harm factors (nature and location of the injury, and impact of injury) and one culpability factor (high degree of carelessness).

97     Given the presence of two primary harm factors, the harm caused was greater harm. Mr Mohamad Nazrulhaqim’s culpability is lower culpability. The applicable sentencing band would be Band 2, with the sentencing range of 6 months’ to 1 year’s imprisonment.

98     Taking into account all the harm and culpability factors, the indicative starting point sentence would be at the lower end of Band 2, viz. about 6 months’ imprisonment.

99     After taking into account the offender-specific aggravating and mitigating factors, including his early plea of guilt, the custodial sentence was moderated downwards to 4 months’ imprisonment.

100     TIC charges. The effect of taking into consideration outstanding charges is to enhance the sentence that would otherwise have been imposed for the proceeded charges: Public Prosecutor v UI [2008] 4 SLR(R) 500 at [38] (see also s 148 of the Criminal Procedure Code). In the present case, the 2nd victim suffered injuries.[note: 52]

101     Clean record. Mr Mohamad Nazrulhaqim had a clean driving record.

102     Guilty plea. The SAP Guidelines for Guilty Pleas applied. I gave due weight to the guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

103    Given the multiple victims’ injuries, the damage to the motorcycles, and the high degree of carelessness by Mr Mohamad Nazrulhaqim, the starting point was about 6 months’ imprisonment. After a discount of 30% under the SAP Guidelines, the custodial sentence was rounded down to 4 months’ imprisonment.

104     Cooperation with the authorities. I gave due weight to Mr Mohamad Nazrulhaqim’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

(4)    Erh Zhi Huang Alvan’s Case

105     Erh Zhi Huang Alvan v Public Prosecutor (“Erh”) (MA 9204 of 2022) was one of the cases heard in the Chen Song decision. The High Court allowed the appeal in Erh and substituted a sentence of 10 weeks’ imprisonment with a fine of $4,000. There was also the minimum 5-year driving disqualification.

106    The offender in Alvan Erh was driving his motor car along an expressway. Due to heavy traffic, the car travelling in front of Erh braked and came to a stop. Consequently, Erh abruptly switched lanes, failing to keep a proper lookout. This led to a collision between Erh’s motor car and the victim who was travelling on his motorcycle: Chen Song at [163].

107    In relation to harm, the victim in Erh suffered from: (a) a traumatic amputation of the right little finger; and (b) a right-sided clavicle fracture. He was given hospitalisation leave of 58 days: Chen Song at [165].

108    It was undisputed that permanent injury was caused to the victim in Erh, although there was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work. Therefore, in the High Court’s view, taking into consideration also the victim’s right-sided clavicle fracture, the damage caused to his motorcycle and the potential harm arising from his abrupt lane-change on the expressway during peak hour, this would place the harm caused in the higher end of the “low” category. This was so bearing in mind that the range of injuries classified as grievous hurt is broad and are by their nature serious: Chen Song at [165].

109    Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165] (see also Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [14]).

110    Based on the High Court’s determination that the harm caused was at the higher end of low and Erh’s culpability was low, the indicative sentence ought to be a fine based on the Sue Chang framework: Chen Song at [167].

111    After taking into account that Erh pleaded guilty and readily co-operated with the authorities, the High Court allowed the appeal in MA 9204 of 2022 and substituted Erh’s sentence of 10 weeks’ imprisonment with a fine of $4,000: Chen Song at [169].

112    I noted that in Erh’s case:

(a)     There was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work: Chen Song at [165].

(b)     Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165].

113    While the victim in Erh suffered a permanent loss of his little finger, the High Court noted that there was no indication of any permanent disability that resulted from this injury and that he had in fact been medically assessed as being likely to be able to return to work. Apart from this, he also suffered a right-sided clavicle fracture, though it was not apparent that there was any surgical intervention required for this injury. While the victim in Erh was given 57 days of hospitalisation leave, this included only one day of hospitalisation, as he was discharged the day after the accident occurred (Public Prosecutor v Hee Kwee Choy [2024] SGDC 230 at [56]).

114    In the present case, the 3rd victim suffered:

(a)     a right 5th metacarpal proximal shaft fracture to his right hand,

(b)     multiple superficial abrasions over his left hand, wrist, forearm and toes; and

(c)     full thickness abrasion wounds over his right knee and left elbow.

(d)     The 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023.

(e)     Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.[note: 53]

115    The 5th victim suffered:

(a)     a left pubic symphysis fracture,

(b)     full thickness laceration to his left big toe; and

(c)     multiple abrasions to his body.[note: 54]

116    In addition to bodily injury, property damage was also caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 55]

117    Furthermore, Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165] (see also Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [14]).

118     Erh was driving his motor car along an expressway. Due to heavy traffic, the car travelling in front of Erh braked and came to a stop. Consequently, Erh abruptly switched lanes, failing to keep a proper lookout. This led to a collision between Erh’s motor car and the victim who was travelling on his motorcycle: Chen Song at [163].

119     Erh’s case had no culpability factors.

120    In contrast, there was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

121    This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 56]

122    The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 57]

123    The Prosecution tried to distinguish Erh by stating that Erh’s sentence was based on the framework in Sue Chang (instead of Chen Song): Chen Song at [165] and [167].

124    However, as the High Court observed in Chen Song at [120], applying both frameworks would likely result in the same or similar outcomes. A similar observation was made by the High Court in Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [3] and [15] and in Loh Kaine Tong Nicholas v Public Prosecutor (HC/MA 9037/2023/01).

125    Finally, I deal with the Defence’s alternative submission of a 2-week SDO. When he was sentenced, the offender was 27 years old (and 26 years old at the time of the offence), and a working adult.[note: 58] Notwithstanding his early plea of guilt and his clean driving record, I was of the view that rehabilitation did not outweigh the principles of deterrence and retribution in the present case given the high degree of carelessness and the nature of the offence, in particular, the serious injuries suffered by multiple victims (Chen Song at [164]).

Conclusion

126    For the above reasons, Mr Mohamad Nazrulhaqim was imprisoned for 4 months and disqualified from driving for 5 years.

127    I am grateful for the hard work and submissions of both sides.

[note: 1]SOF at [7(b)].

[note: 2]SOF at [7(a)].

[note: 3]DAC 918157 of 2024.

[note: 4]SOF at [8].

[note: 5]SOF at [3].

[note: 6]SOF at [10].

[note: 7]DAC 918156 of 2024.

[note: 8]DAC 918157 of 2024.

[note: 9]DAC 918158 of 2024.

[note: 10]SOF at [1].

[note: 11]SOF at [2].

[note: 12]SOF at [3].

[note: 13]SOF at [4].

[note: 14]SOF at [5].

[note: 15]SOF at [6].

[note: 16]SOF at [7].

[note: 17]SOF at [8].

[note: 18]SOF at [9].

[note: 19]SOF at [10].

[note: 20]SOF at [11].

[note: 21]SOF at [12].

[note: 22]Prosecution’s Skeletal Address on Sentence at [1] and [5].

[note: 23]Prosecution’s Skeletal Address on Sentence at [3].

[note: 24]Prosecution’s Skeletal Address on Sentence at [3(a)].

[note: 25]Prosecution’s Skeletal Address on Sentence at [3(b)].

[note: 26]Prosecution’s Skeletal Address on Sentence at [3(c)].

[note: 27]Prosecution’s Skeletal Address on Sentence at [4].

[note: 28]Mitigation Plea at [1], [27], [30]-[31].

[note: 29]Mitigation Plea at [5].

[note: 30]Mitigation Plea at [6].

[note: 31]Mitigation Plea at [7].

[note: 32]Mitigation Plea at [11.1].

[note: 33]Mitigation Plea at [11.2].

[note: 34]Mitigation Plea at [11.3].

[note: 35]Mitigation Plea at [12.1].

[note: 36]Mitigation Plea at [12.1].

[note: 37]Mitigation Plea at [13].

[note: 38]Mitigation Plea at [14].

[note: 39]Mitigation Plea at [15].

[note: 40]Mitigation Plea at [17].

[note: 41]Mitigation Plea at [23].

[note: 42]Mitigation Plea at [24].

[note: 43]Mitigation Plea at [28].

[note: 44]SOF at [7(b)].

[note: 45]Medical report dated 3 October 2023 at page 1.

[note: 46]SOF at [7(a)].

[note: 47]Medical report dated 2 October 2023 at page 2.

[note: 48]SOF at [7(b)].

[note: 49]SOF at [8].

[note: 50]SOF at [3].

[note: 51]SOF at [10].

[note: 52]DAC 918157 of 2024.

[note: 53]SOF at [7(b)].

[note: 54]SOF at [7(a)].

[note: 55]SOF at [8].

[note: 56]SOF at [3].

[note: 57]SOF at [10].

[note: 58]Mitigation Plea at [31].

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Public Prosecutor v Ning Zhaochuang
[2024] SGDC 281

Case Number:District Arrest Case No 906666 of 2024 and 1 other, Magistrate's Appeals No 9186 of 2024-01
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: A Sangeetha
Counsel Name(s): Kevin Liew and Jason Chua (Attorney-General's Chambers) for the Public Prosecutor; Accused in person.
Parties: Public Prosecutor — Ning Zhaochuang

Criminal law – Abetment – Abetment by conspiracy

Criminal law – Penal Code – Cheating

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9186/2024/01.]

30 October 2024

District Judge A Sangeetha:

Introduction

1       The accused, Ning Zhaochuang, is a 40-year-old Chinese citizen. He claimed trial to one charge (the “Charge”) of abetment by engaging in a criminal conspiracy with one Chan Yun For (“Chan”) to cheat and dishonestly induce an Apple store assistant to accept a credit card in the name of Zhang Jian (“Zhang”) for payment and delivery of two sets of the Apple iPhone 15 Pro Max to Chan.

2       Having carefully considered the evidence and parties’ submissions, I convicted the accused of the Charge.

3       Following this, the accused admitted and consented to a charge under s 379 of the Penal Code 1871 (“PC”) to be taken into consideration for sentencing[note: 1]. This charge was for committing theft of Zhang’s items (including the above-mentioned credit card) on 20 February 2024 at about 3pm in Sentosa.

4       I sentenced the accused to an imprisonment term of 22 months for the Charge and ordered that his sentence be backdated to the date of arrest, 26 March 2024. The accused is presently serving his sentence. His earliest date of release is 17 June 2025.

5       Dissatisfied, the accused appealed against the conviction. As the accused did not file an appeal against sentence, these grounds will be limited to my reasons for his conviction.

The Charge

6       The Charge[note: 2] is reproduced below:

…are charged that you, on 20 February 2024, in Singapore, did engage with one Chan Yun For (“Chan”) in a conspiracy to do a certain thing, namely to cheat, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 20 February 2024, at about 4.39pm, at the Apple Marina Bay Sands store (“Apple store”) located at 2 Bayfront Avenue B2-06 Singapore 018972, to wit, Chan presented a China Construction Bank credit card bearing number xxxx xxxx xxxx xxxx in the name of Zhang Jian to a sales assistant of the Apple store for the payment of two iPhone 15 Pro Max valued at SGD 5,003.85, to deceive the sales assistant into believing that Chan was the rightful account owner of the credit card, a fact which you and Chan knew was false, and by such manner of deception, the sales assistant was dishonestly induced to accept the credit card for the payment of the two iPhones and deliver the two iPhones to Chan, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code 1871

Undisputed facts

7       The accused and Chan knew one David Chen (“David”). Chan described David as his “boss”[note: 3].

8       The accused arrived in Singapore on 19 February 2024 through Woodlands Checkpoint[note: 4]. Chan, a Hong Kong national, also arrived in Singapore on the same day but through Changi Airport[note: 5].

9       The next day, on 20 February 2024, between 10.49am and 10.56am, the accused visited the Apple store (“Apple Store”) at Marina Bay Sands (“MBS”). He did not make any purchase[note: 6]. Chan, who was also at the Apple Store at that time, successfully purchased two sets of the Apple iPhone Pro Max using a credit card belonging to one Hong Khee Kiong (“1st Purchase”)[note: 7]. Both the accused and Chan left the Apple Store at about 10.56am[note: 8].

10     Sometime between 3pm and 4pm, in Sentosa, Zhang lost his wallet which contained cash, a China Construction Bank credit card bearing xxxx xxxx xxxx xxxx (“Credit Card”) and other cards[note: 9].

11     At around 4.39pm, Chan used the Credit Card to make an unauthorised purchase of two sets of the Apple iPhone 15 Pro Max valued at S$5,003.85 at the Apple Store[note: 10] (“2nd Purchase”). Once the transaction was completed, Chan left the Apple Store with the two phones.

12     Subsequently, Zhang received an SMS regarding this transaction. Only then did Zhang realise that he had lost his wallet. Later that night, Zhang made a police report which resulted in investigations being carried out[note: 11]. Pursuant to section 20(1) of the Criminal Procedure Code 2010 (“CPC”), the police issued an Order for Information dated 11 March 2024 to Apple requesting for data concerning the 2nd Purchase[note: 12].

13     Meanwhile, the accused and Chan left Singapore vide Changi Airport on 24 February 2024[note: 13] and 27 February 2024 respectively[note: 14].

14     When the accused[note: 15] and Chan attempted to re-enter Singapore on different dates in March 2024, they were each arrested. They were charged in court separately.

15     Chan pleaded guilty on 18 July 2024 to three charges[note: 16]. He was sentenced to a global imprisonment term of 20 months[note: 17]. The charges and respective sentences are as follows:

(a)     For the charge of cheating whilst engaging in a criminal conspiracy with an unknown person for the 1st Purchase under s 420 read with s 109 of the PC, Chan was sentenced to 17 months’ imprisonment.

(b)     For the charge of cheating whilst engaging in a criminal conspiracy with the accused for the 2nd Purchase under s 420 read with s 109 of the PC, Chan was similarly sentenced to 17 months’ imprisonment.

(c)     For the charge of receiving the stolen Credit Card from the accused under s 411 of the PC, Chan was sentenced to three months’ imprisonment.

Summary of the Prosecution’s case

16     The Prosecution’s case was that this case involved the use of a stolen credit card to purchase iPhones which were later sold for profit. As part of this illegal syndicated scheme, the accused passed the Credit Card to Chan and engaged in a conspiracy to cheat. Pursuant to this conspiracy, Chan effected the 2nd Purchase using the Credit Card. The Apple Store representative, Vikneswari d/o Kamala Anandan (PW3), was deceived into believing that Chan was the rightful owner of the Credit Card. She was dishonestly induced into accepting the Credit Card as payment for the two iPhones that she delivered to Chan.[note: 18]

17     The Prosecution led evidence from three witnesses, namely, Inspector Chang Yuan Feng (PW1) who was the lead investigation officer (“IO”) for this case, Chan (PW2) and PW3.

18     The Prosecution’s main witness was Chan, who gave direct evidence on the accused’s abetment pursuant to a conspiracy to cheat the Apple Store of the iPhones. Chan identified the accused as the person who gave him the Credit Card in a toilet at MBS to make the 2nd Purchase.

19     The evidence from the IO and PW3 were largely uncontroversial.

20     The IO testified that based on investigations, on the morning of 20 February 2024, the accused entered the Apple Store. He was observed to be looking at Chan[note: 19]. Shortly after, Chan carried out the 1st Purchase before the accused and Chan left the Apple Store. As regards the 2nd Purchase, the IO testified that investigations revealed that the accused had stolen the Credit Card from Zhang and subsequently, handed the Credit Card to Chan[note: 20].

21     PW3 processed the transaction for the 2nd Purchase. She testified that she was deceived into believing that Chan was the owner of the Credit Card when he was not. Had she known that Chan was not the owner of the Credit Card, she would not have processed the said transaction. PW3 testified that she was induced into accepting the Credit Card for payment and delivering the two iPhones to Chan[note: 21].

22     Apart from the direct evidence from Chan, the Prosecution bolstered its case by relying on two pieces of circumstantial evidence (“Circumstantial Evidence”)[note: 22]. The first was that both Chan and the accused knew David. The second was the accused’s presence in the Apple Store during the 1st Purchase. According to the Prosecution, the Circumstantial Evidence suggested that the accused was involved in the syndicate operated by David to use stolen credit cards to purchase iPhones from the Apple Store.

Summary of the Defence’s case

23     The accused was the Defence’s sole witness.

24     At this juncture, it is apposite to provide some context on how evidence-taking went. The accused’s examination-in-chief was brief despite this Court asking him to state his version of events, provide information that would help his defence, as well as requesting his explanation for the evidence which was presented in Court[note: 23].

25     After the allocution was administered to him, the accused had initially elected to give evidence and answer the learned DPP’s questions[note: 24].

26     Less than 30 minutes into cross-examination, the accused changed his mind and refused to answer questions. As a result, the case was stood down early so that the accused could have some time to calm down and consider stating his answers under cross-examination the next day.

27     Surprisingly, the next day, the accused refused to take the stand and elected to remain silent without entering the witness stand. I explained to the accused that given that he had earlier elected to give evidence, he had to take the witness stand to state his answers or his refusal to answer[note: 25]. The accused then took the stand and declared that he would remain silent for all questions posed[note: 26]. The learned DPP continued with cross-examination. Consistent with his declaration, the accused persistently refused to answer the DPP’s questions.

28     The accused’s defence was one of bare denial. His position was that there was no abetment or conspiracy to cheat between himself and Chan for the following reasons:

(a)     there was no CCTV footage of the accused stealing the Credit Card[note: 27];

(b)     there was no CCTV footage of the accused entering the toilet at MBS where he was alleged to have met and delivered the Credit Card to Chan[note: 28];

(c)     there was no CCTV footage of the accused passing the Credit Card to Chan[note: 29];

(d)     the accused did not say a word to Chan at the Apple Store[note: 30];

(e)     the accused did not buy anything with Chan[note: 31];

(f)     there was no evidence of any conversation between the accused and David[note: 32]; and

(g)     there were no records to show contact between the accused and Chan[note: 33].

29     The accused’s claim that there was an absence of CCTV footages and/or records of conversations was not disputed by the Prosecution.

Issue to be determined: Whether the accused had engaged in a conspiracy with Chan for the 2nd Purchase

30     It was not in dispute that Chan had used the Credit Card for the 2nd Purchase. Neither was it in dispute that PW3 was deceived to deliver the two iPhones to Chan.

31     The sole issue at trial was whether the accused had engaged in a conspiracy with Chan for the 2nd Purchase. The testimonies from Chan and the accused were at odds. Chan identified the accused to be the person who gave him the Credit Card to make the 2nd Purchase, whereas the accused vehemently denied this.

Chan’s evidence that there was a conspiracy to be believed

32     Chan testified that he had first met the accused in the afternoon on 20 February 2024 at a toilet (on the same floor as the Apple Store) in MBS [note: 34]. Pursuant to David’s instructions, Chan had gone to the toilet to collect a stolen credit card from “someone”[note: 35], whose identity was not revealed by David. There was no prior communication between Chan and the accused, as arrangements were made by David on WeChat[note: 36]. This was corroborated by screenshots from Chan’s WeChat account (P11) which showed an incoming call from David to Chan lasting 22 seconds followed by photographs of the Credit Card[note: 37].

33     Chan subsequently identified the “someone” to be the accused. Chan testified that the accused handed the Credit Card to him at the toilet so that Chan could purchase iPhones from the Apple Store[note: 38].

34     Shortly after, Chan left the toilet to execute the 2nd Purchase with the Credit Card[note: 39]. Once the transaction was done, Chan destroyed the Credit Card. This was supported by the photographs in P11[note: 40] which showed the destroyed Credit Card.

35     Under cross-examination, Chan remained consistent that the accused handed the Credit Card to him at a toilet in MBS[note: 41] so that he could make the 2nd Purchase. While the accused had asserted that Chan was trying to frame him[note: 42], I noted that this was merely a bare assertion with no reasons suggested as to why Chan would want to frame him.

36     Chan’s testimony in Court was also consistent with the charge (see DAC-907645-2024) and Statement of Facts dated 17 July 2024 (“Chan’s SOF”) which he had pleaded guilty to[note: 43]. In Chan’s SOF, Chan admitted to helping a syndicate operate in Singapore by stealing credit cards and using such cards to purchase items which would thereafter be sold for profit. In respect of the 2nd Purchase, Chan’s SOF stated that David had asked Chan to meet another syndicate member, who was later identified to be the accused, at a toilet in MBS to collect a stolen credit card from the accused. The meeting took place according to David’s plan, with Chan collecting the Credit Card from the accused.

37     The Prosecution submitted that Chan was a credible witness whose evidence was corroborated by objective evidence[note: 44]. The Prosecution further submitted that Chan had no reason to lie or provide false allegation against the accused. As Chan did not know the accused prior to 20 February 2024, there was no ill will between them. In Court, Chan provided a factual account of what happened on 20 February 2024 without playing up the accused’s role. The Prosecution also submitted that if the Court found Chan’s evidence to be reliable, then Chan’s evidence should receive the same weight as any other evidence.

38     The accused orally submitted that Chan testified against the accused so that Chan could avoid a trial[note: 45]. As Chan’s evidence was not supported by CCTV footages, the accused submitted that this Court should not accept Chan’s false testimony.

39     Overall, I found Chan to be a reliable witness and accepted his evidence. I agreed with the Prosecution that Chan’s evidence was corroborated by contemporaneous evidence, P11.

40     Regarding the accused’s submission that Chan testified against the accused to avoid a trial, I found nothing strange about Chan pleading guilty and later, testifying against the accused as a co-conspirator. It was natural that once Chan pleaded guilty to his offences, a trial for his offences would no longer be necessary.

41     In addition, Chan had also admitted to his offences and accepted the punishment imposed by the court. Based on the evidence before this Court, I was also unable to see any reason for Chan to falsely implicate the accused. Chan had pleaded guilty and received his sentence prior to this trial. He came as a witness after a subpoena was issued to him. All things considered, I found that Chan had nothing to gain by lying to this Court. I accorded full weight to Chan’s testimony.

The Circumstantial Evidence was consistent with the Prosecution’s case

42     Looking only at the Circumstantial Evidence of David being a common contact of the accused and Chan, as well as the accused being at the Apple Store during the 1st Purchase, it may not be evident that there was a link or connection between Chan and the accused.

43     However, seen together with the direct evidence from Chan and the supporting contemporaneous evidence, I agreed with the Prosecution that the Circumstantial Evidence was consistent with its case that the accused and Chan were members of a syndicate which operated in Singapore at the material time. Most pertinently, the accused had refused to explain or explain satisfactorily, if at all, on why he was at the Apple Store when Chan was making the 1st Purchase. The absence of explanations from the accused regarding his appearance in the Apple Store during the 1st Purchase and the dearth of details concerning his relationship with David (as discussed below at [53] to [56]) only further strengthened the Prosecution’s case.

The Prosecution had proven its case beyond a reasonable doubt with Chan’s direct evidence and supporting evidence

44     For a charge which alleges an abetment by way of conspiracy, the elements that need to be proved are laid down in Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 (at [76]):

The essential elements of abetment by conspiracy are: first, the person abetting must engage with one or more other persons in a conspiracy; second, the conspiracy must be for the doing of the thing abetted; and third, an act or illegal omission must take place in pursuance of the conspiracy in order to the doing of that thing.

45     Explanation 5 to s 108 of the PC and its accompanying illustration makes it clear that it is not necessary for the abettor to have agreed or arranged directly with all the other conspirators or the person who commits the offence:

Explanation 5 — It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section, and is liable to the punishment for murder.

46     Additionally, the following summary of the case law in Public Prosecutor v Pang Siu Shen (Peng Xiuxian) and another [2024] SGDC 108 (at [38]) is a useful guide on how criminal conspiracy may be proved:

(a)    Proof of a conspiracy is generally a matter of inference of the apparent criminal purpose in common between the accused parties: Er Joo Nguang v Public Prosecutor [2000] 1 SLR(R) 756 (at [35]). In Goldring, Timothy Nicholas v Public Prosecutor and other appeals [2015] 4 SLR 742 (at [47]), the Court of Appeal confirmed that a conspiracy need not be proved by direct evidence, and in fact, is often proved by the cumulative circumstantial evidence. This is because conspirators mostly agree in private and direct evidence is rarely available.

(b)    The essence of a conspiracy is agreement, and it suffices to show the conspirators’ awareness of the general purpose of the plot, or an agreement in principle to carry out the common design: Nomura Taiji v Public Prosecutor [1998] 1 SLR(R) 259 (at [110]) (“Nomura Taiji”).

(c)    Accordingly, there is no need to prove: (i) a physical meeting of the conspirators; (ii) that the conspirators remained in each other’s company throughout or at all; (iii) communication between each conspirator and every other; (iv) or that the conspirators knew all the details of the unlawful plot: Ang Ser Kuang v Public Prosecutor [1998] 3 SLR(R) 316 (at [30]); Nomura Taiji (at [110]).

(d)    It is not essential for a conspirator to have been a party to the agreement from the start, provided that at some stage prior to the unlawful act being carried out, he or she joins in the agreement: Saleemuddin v State (1971) ILR 1 Delhi 432 (at [16]).

47     In this case, the following elements of the Charge must be proven beyond reasonable doubt:

(a)     The accused engaged in a conspiracy with Chan;

(b)     The conspiracy was for doing the thing abetted; and

(c)     Pursuant to the said conspiracy, an act or omission took place.

48     On the evidence in this case, I was satisfied that there was a meeting of minds to prove conspiracy. Evidence from Chan showed that the accused and Chan were aware of the general purpose of the meeting in the toilet i.e. for the accused to deliver the Credit Card to Chan for him to make the 2nd Purchase. The evidence showed that the conspiracy was executed successfully with the accused meeting Chan to deliver the Credit Card. With that Credit Card, Chan made the 2nd Purchase and left the Apple Store with two iPhones. I was satisfied that Chan and the accused were members of a syndicate and acted in concert as per the Charge.

49     As the case law cited above makes clear, for a conspiracy to exist, there was no need for Chan and the accused to have remained in each other’s company throughout or at all, have direct records of conversations with each other or even have conversations with each other and every other co-conspirator or know all the details of the unlawful plot.

50     In sum, based on the direct evidence from Chan and supporting contemporaneous evidence, P11, I was satisfied that the Prosecution had discharged its burden in proving that the accused had abetted Chan as set out in the Charge.

Accused’s evidence denying abetment by conspiracy was inadequate and internally inconsistent

51     Under the circumstances mentioned above (at [23-27]), the evidence which was eventually led from the accused was limited. I assessed the accused’s evidence to be inadequate and sketchy. In my view, his evidence created more questions than it offered answers. Accordingly, I found that the accused’s testimony did nothing to create a dent in the Prosecution’s case. I explain.

52     The accused’s evidence could be classified into two categories, namely, instances where he gave evidence, but such evidence lacked details or internal inconsistency and instances where the accused refused to give evidence.

The accused’s evidence was lacking details or internal consistency

53     The first category concerned aspects of the accused’s evidence which were lacking details or internal consistency. These aspects are as follows:

(a)     The accused’s evidence on his stay in Singapore in February 2024 was sorely lacking in detail. The accused testified that he came to Singapore with a friend (later, he said brother[note: 46]), and they had left together[note: 47]. Apart from this brief testimony, unfortunately, the accused did not give any account of events or provide any evidence on the whereabouts of his stay in Singapore. In addition, the accused did not call any witness to support his version. After the accused had finished testifying, he indicated his intention call a friend who was with him in Singapore at the material time and could attest to the accused’s whereabouts. The accused requested to use his mobile phone to make a video call to this witness who was in China. Having heard my explanation that he must put in a formal application for the witness to give evidence remotely from a foreign jurisdiction (including providing the identity of the potential witness), the accused did not pursue this further[note: 48].

(b)     The accused’s evidence on the details of his relationship with David was internally inconsistent. As mentioned earlier, the accused admitted that he knew David. When the accused was cross-examining the IO, he mentioned that he had not been in contact with David for a few months. Within seconds, the accused quipped that he had never chatted with David[note: 49]. During the DPP’s cross-examination of the accused, the accused testified that he had not been in contact with David for nearly a year[note: 50] including the time he had spent in remand. The accused further testified that there was no chat record between David and himself[note: 51]. When the DPP probed on whether the accused had deleted the chat records, the accused reverted to one of his earlier positions that he had never contacted David before[note: 52]. As can be seen, the accused toggled between having contact with David nearly a year ago to never having contact with David. Any attempt by the Prosecution to clarify these answers was futile given the accused’s subsequent refusal to answer questions.

54     In the absence of consistent and reliable evidence from the accused, I found it hard to give his testimony any weight.

The accused refused to give evidence on material aspects

55     As mentioned above, the accused elected to give evidence and answer the DPP’s questions. This changed as soon as the questions geared towards his relationship with David[note: 53]. The accused began stating his refusal to answer. The next day, the accused attempted to insulate himself from further cross-examination by retracting his election to give evidence and wanted to remain silent. This was followed by his refusal to answer questions which went to the nub of this case. The accused explained that his refusal to answer questions was because there was no evidence against him. Regrettably, this explanation was neither here nor there.

56     In the following instances, the accused refused to give evidence on the several material aspects which directly impacted his culpability:

(a)     whether he met Chan before 20 February 2024[note: 54];

(b)     whether the accused entered the Apple Store in the morning of 20 February 2024 after Chan had gone to the Apple Store;[note: 55]

(c)     whether the accused was looking for Chan in the Apple Store in the morning of 20 February 2024[note: 56];

(d)     whether the accused was in MBS in the afternoon of 20 February 2024[note: 57];

(e)     whether the accused had seen the Credit Card before[note: 58];

(f)     whether the accused was at the toilet at MBS in the afternoon of 20 February 2024[note: 59];

(g)     whether the accused was the one who passed the stolen credit card to Chan in the toilet[note: 60];

(h)     whether the accused had instructed Chan to use the Credit Card at the Apple Store[note: 61];

(i)     whether Chan had agreed to use the Credit Card[note: 62]; and

(j)     whether Chan made the 2nd Purchase with the Credit Card[note: 63].

57     Seen in context, the accused persistently refused to answer questions on crucial points regarding the events of 20 February 2024. Since the accused was the only person who could contradict Chan’s evidence on what happened on that day, at every opportunity he had, the accused could have given a plausible explanation for this Court’s consideration. But he simply did not.

Drawing of adverse inference against the accused

58     In respect of the accused’s refusal to answer questions, the Prosecution submitted that an adverse inference against the accused under s 291(3)(b) of the CPC be drawn that the accused had no defence to the Charge[note: 64]. For reference, the provision relied on by the Prosecution is reproduced below:

…

(3)    If the accused -

(a)    after being called upon by the court to give evidence or after the accused or the advocate representing the accused has informed the court that the accused will give evidence, refuses to be sworn or affirmed; or

(b)    having been sworn or affirmed, without good cause refuses to answer any question,

the court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

59     The appropriate inference to be drawn in each case depended on the circumstances and was premised upon ordinary common sense: see Oh Laye Koh v Public Prosecutor [1994] SGCA 102 (“Oh Laye Koh”) at [14] to [15]. In Oh Laye Koh, the defendant elected to remain silent and failed to give any evidence on oath. Additionally, he called no witnesses in his defence. Relying on s 196(2) of the Criminal Procedure Code (Cap. 68) (like the present-day s 291(3) of the CPC), the trial judge drew an adverse inference against the defendant that he was guilty of the offence charged.

60     In the present case, I agreed with the Prosecution that the accused’s refusal to answer questions after having been affirmed could place the accused within s 291(3)(b) of the CPC. The key question was whether the accused had good cause for his refusal. To this end, I referred to s 291(5) of the CPC which provides:

(5)    For the purposes of this section, an accused who, having been sworn or affirmed, refuses to answer a question is taken to do so without good cause unless —

(a)    the accused is entitled to refuse to answer by section 122(4) of the Evidence Act 1893 or another written law or on the ground of privilege; or

(b)    the court excuses the accused from answering it.

61     In my assessment, the accused did not satisfy the exceptions set out in s 291(5) of the CPC. The questions posed by the learned DPP concerned the offences that he was charged for. At no point did the accused plead privilege or refer to any other law. Neither was he excused by this Court from answering the questions posed by the learned DPP.

62     Having considered the accused’s evidence in totality, I agreed with the Prosecution that the accused did not have satisfactory answers to provide or a viable defence to present in Court. I was satisfied that the accused’s refusal to answer questions during cross-examination was done without good cause. Accordingly, I exercised my discretion under s 291(3) of the CPC and drew an adverse inference against the accused that he was guilty of the Charge.

Conclusion

63     In conclusion, I was satisfied beyond reasonable doubt that the accused had engaged in a conspiracy with Chan and abetted him to carry out the 2nd Purchase. Having found the accused guilty of the Charge, I convicted and sentenced him to 22 months’ imprisonment with effect from 26 March 2024.

[note: 1]Notes of Evidence (“NE”), 27 September 2024, 4/3-31; 5/1-5

[note: 2]C1A

[note: 3]NE, 14 August 2024, 4/22-23

[note: 4]P7

[note: 5]P8

[note: 6]P10 footage “08A R633 02202024 1048-1057hrs”

[note: 7]P13

[note: 8]P10 footage “08A R633 02202024 1048-1057hrs”

[note: 9]P1

[note: 10]NE, 14 August 2024, 7/19-23; P9; P10 footage “08A R633 02202024 1635-1644hrs”

[note: 11]P1; NE, 13 August 2024, 6/30-31; 7/6

[note: 12]P2

[note: 13]P7

[note: 14]P8

[note: 15]P4

[note: 16]DAC-905298-2024, DAC-907645-2024 and DAC-907647-2024

[note: 17]P13

[note: 18]P14

[note: 19]NE, 13 August 2024, 14/8-20

[note: 20]NE, 13 August 2024, 47/16-27

[note: 21]NE, 14 August 2024, 36/8-30

[note: 22]P14

[note: 23]NE, 14 August 2024, 42/23-34; 43/1-10

[note: 24]NE, 14 August 2024, 42/1-19

[note: 25]NE, 15 August 2024, 1/12-30; 2/1-20

[note: 26]NE, 15 August 2024, 3/3-20

[note: 27]NE, 13 August 2024, 43/5-15; 50/16-27

[note: 28]NE, 13 August 2024, 44/12-14; NE, 14 August 2024, 22/22-31

[note: 29]NE, 13 August 2024, 50/28-30; 51/1-3

[note: 30]NE, 13 August 2024, 43/16-18

[note: 31]Ibid

[note: 32]NE, 13 August 2024, 45/23-26

[note: 33]NE, 13 August 2024, 48/1-7

[note: 34]NE, 14 August 2024, 3/29-34; 4/1-5

[note: 35]NE, 14 August 2024, 4/16-23

[note: 36]NE, 14 August 2024, 11/30-31; 12/1-15

[note: 37]NE, 13 August 2024, 37/1-9

[note: 38]NE, 14 August 2024, 4/13-15; 7/8-10; 11/21-29

[note: 39]NE, 14 August 2024, 7/19-23

[note: 40]NE, 13 August 2024, 37/10-16; NE, 14 August 2024, 12/16-20

[note: 41]NE, 14 August 2024, 22/3-21

[note: 42]NE, 14 August 2024, 24/1-14

[note: 43]P13

[note: 44]P14

[note: 45]NE, 10 September 2024, 8/1-12

[note: 46]NE, 14 August 2024, 45/1

[note: 47]NE, 14 August 2024, 44/13-15

[note: 48]NE, 15 August 2024, 28/17-32; 29/1-32; 30/1-17

[note: 49]NE, 13 August 2024, 45/11-22

[note: 50]NE, 14 August 2024, 47/21-24; 48/4-7

[note: 51]NE, 14 August 2024, 48/17-21

[note: 52]NE, 14 August 2024, 48/22-26

[note: 53]NE, 14 August 2024, 47/21-31; 48/1-32; 49/1-29

[note: 54]NE, 15 August 2024, 24/13-15

[note: 55]NE, 15 August 2024, 5/3-8

[note: 56]NE, 15 August 2024, 5/18-25

[note: 57]NE, 15 August 2024, 11/20-26

[note: 58]NE, 15 August 2024, 16/1-9

[note: 59]NE, 15 August 2024, 13/15-18

[note: 60]NE, 15 August 2024, 13/3-18

[note: 61]NE, 15 August 2024, 16/15-25

[note: 62]NE, 15 August 2024, 16/26-30; 25/1-11

[note: 63]NE, 15 August 2024, 17/12-30

[note: 64]P14

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Public Prosecutor v Altaf Ahamad Sheikh
[2024] SGDC 282

Case Number:District Arrest Case No 940886 of 2018 & Another, MA 9159-2024-01
Decision Date:28 October 2024
Tribunal/Court:District Court
Coram: Salina Ishak
Counsel Name(s): Norman Yew, Koh Mun Keong and Jeremy Bin (Attorney-General's Chambers) for the Public Prosecutor; Andre Darius Jumabhoy and Low Ying Ning Elaine (Peter Low & Choo LLC until 12 September 2022); Andre Darius Jumabhoy and Aristotle Eng (Andre Jumabhoy LLC) for the accused.
Parties: Public Prosecutor — Altaf Ahamad Sheikh

Criminal Law – Offences – Penal Code – Forgery for the purpose of cheating – Fraud committed on insurance company – Expert evidence

Criminal Procedure and Sentencing – Sentencing – General and specific deterrence – Fraud involving financial institutions

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9159/2024/01.]

28 October 2024

District Judge Salina Ishak:

Introduction

1       The present case involves a fraud committed on Allied World Assurance Company Ltd (“Allied World”), an insurance provider that led to a payout of $653,500 to Royal Kashmir Trading Private Limited (“Royal Kashmir”), a carpet retailer.

2       The accused, Mr Altaf Ahamad Sheikh, a 55-year-old male Singapore citizen ran Royal Kashmir, a carpet trading business at 40 Arab Street. He denies forging two Oriental Carpets Pte Ltd (“Oriental Carpets”) invoices that were submitted as part of the documents in support of the insurance claim. He claimed trial to two charges of forgery for the purpose of cheating under s 468 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) as set out below:

DAC 940886-2018

1st Charge (Amended)

are charged that you, between November 2015 and April 2016, in Singapore, did forge an invoice bearing the header “Oriental Carpets Pte Ltd” and numbered 1377, intending that it be used for the purpose of cheating Allied World Assurance Company Ltd, to wit, by fraudulently writing and signing on the said invoice, intending to deceive Allied World Assurance Company Ltd into believing that Oriental Carpets Pte Ltd had issued the said signed invoice with its written particulars to Royal Kashmir Trading Pte Ltd, and thereby dishonestly induce Allied World Assurance Company Ltd to deliver an insurance payout to Royal Kashmir Trading Pte Ltd, and you have thereby committed an offence punishable under section 468 of the Penal Code (Cap.224, 2008 Rev. Ed.).

DAC 940887-2018

2nd Charge (Amended)

are charged that you, between November 2015 and April 2016, in Singapore, did forge an invoice bearing the header “Oriental Carpets Pte Ltd” and numbered 1378, intending that it be used for the purpose of cheating Allied World Assurance Company Ltd, to wit, by fraudulently writing and signing on the said invoice, intending to deceive Allied World Assurance Company Ltd into believing that Oriental Carpets Pte Ltd had issued the said signed invoice with its written particulars to Royal Kashmir Trading Pte Ltd, and thereby dishonestly induce Allied World Assurance Company Ltd to deliver an insurance payout to Royal Kashmir Trading Pte Ltd, and you have thereby committed an offence punishable under section 468 of the Penal Code (Cap.224, 2008 Rev. Ed.).

3       The Prosecution asserts that the accused forged the two invoices between November 2015 to April 2016 by fraudulently writing and signing on these invoices for carpets sold by Oriental Carpets to Royal Kashmir to deceive Allied World into delivering the said insurance payout.

4       The accused does not deny that he submitted the two invoices in April 2016 to Allied World as part of his insurance claim for the rainwater damage suffered by Royal Kashmir. Instead, the accused claims that the two invoices were provided by Oriental Carpets when the carpets were delivered in early 2013.

5       At the conclusion of the trial, I found the accused guilty and convicted him on both the charges. I imposed the following sentences:

(a)     DAC 940886 - 2018 – 30 months’ imprisonment

(b)     DAC 940887 - 2018 – 30 months’ imprisonment.

I ordered the imprisonment terms to run concurrently. The total sentence is 30 months’ imprisonment. This is the accused’s appeal against his conviction and sentence. The accused is presently on bail pending the hearing of his appeal.

6       I now set out the grounds of my decision in full.

Background

7       Both the accused and Mr Khawaja Muhammad Kamran (“Kamran”), the controller of Oriental Carpets was in the business of selling carpets. Kamran regarded the accused as a very good friend, and they had known each other about 10 to 15 years prior to starting the business. Prior to 2013, the accused had been buying carpets from Oriental Carpets through Kamran.

Chronology of significant events

8       The table below sets out the chronology of significant events.

Date

Events

30 November 2015

Royal Kashmir makes an insurance claim to Allied World for damage to its stock estimated at about $1,000,000 as well as for loss of revenue for the insured property at 40 Arab Street.

1 April 2016

The accused emails the scanned copies of invoices from carpet retailers including Oriental Carpets invoices numbered 1377 and 1378[note: 1] to Areda Adjusters, Allied World’s loss adjuster.

12 June 2016

Areda Adjusters issues its Final Report[note: 2] on the insured property at 40 Arab Street recommending the insurers settle the claim at $653,500.

28 April 2017

Kamran lodges a police report E/20170428/2066[note: 3] against the accused for outstanding payment for carpets from Oriental Carpets. The accused had informed Kamran that he would make payment after receiving his insurance claim. In June 2016, Kamran discovered that the accused’s shop was closed. Kamran indicates that he was taking his own legal action.

24 May 2017

Mr Jan Mohmad Butt (“Jan”) lodges a police report A/20170524/2066[note: 4] against the accused as he suspects the accused used fake invoices to make an insurance claim with Allied World. He refers to the police report made by Kamran and highlights that the total value of the Oriental Carpet invoices was $33,103.48. However, Royal Kashmir had submitted Oriental Carpets invoices amounting to $253,852.60. He states that Kamran had informed the insurers that he had never issued the invoices that the accused had submitted to his insurers.

13 July 2017

Allied World finalises the insurance claim and approves payment of $653,500 to Royal Kashmir whereby $650,000 is for the property damage and $3,500 for the consequential loss.

25 September 2017

The police submit seized exhibits and request specimen handwriting of Kamran, the accused’s wife, Madam Rehana Begam d/o Gulabali (“Rehana”) and the accused to the Health Sciences Authority (“HSA”) for handwriting analysis.

4 October 2017

The police submit normal specimen handwriting of Kamran, Rehana and the accused to HSA for analysis.

26 October 2017

Nellie Cheng, Senior Forensic Scientist of HSA issues her handwriting analysis expert report[note: 5] and the exhibits were returned to the police.

18 December 2018

The accused is charged in Court 26 for the present charges.

16 October 2021

Defence’s handwriting expert, Ms Melanie Jayne Holt, a Forensic Document Examiner from Documents in Dispute issues her expert report[note: 6] based on scanned copies of the exhibits.



Prosecution’s Case

9       It was the Prosecution’s case to support Royal Kashmir’s insurance claim, the accused submitted invoices issued by his carpet suppliers to the insurer’s loss adjusters. In particular, the accused asked Kamran to issue fresh Oriental Carpets invoices for carpets sold to Royal Kashmir as he claimed the original invoices in the accused’s possession were damaged. As Kamran trusted the accused, he gave the accused an empty Oriental Carpets invoice booklet sometime in 2016 to enable him to create fresh invoices for the carpets that were sold to him. However, instead of doing so, the accused fraudulently creates two forged invoices numbered 1377 and 1378 ie P2 and P3 by writing false material particulars and signing on two empty Oriental Carpets invoices. The accused knew that the particulars were false as Kamran had not sold those goods to the accused.

Defence’s case

10     The Defence’s asserts that the two Oriental Carpets invoices were given to Royal Kashmir in early part of 2013 when Kamran delivered the carpets to the shop at 40 Arab Street. As the accused was busy, Kamran gave the invoices to Rehana who acknowledged receipt when she initialled on them.

11     The Defence states that the Prosecution has not proven that the accused forged the writings and signatures in the two invoices. Instead, the Defence’s handwriting expert has conclusively demonstrated that the accused did not write the disputed invoices.

Issues

12     The key issues at trial were:

(a)     Whether Oriental Carpets sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 with a total value of $253,852.60 and

(b)     Whether the accused forged the invoices between November 2015 and April 2016 by fraudulently writing and signing on the Oriental Carpets’ invoices numbered 1377 and 1378.

13     Before my analysis of the evidence before me, it is necessary to set out the undisputed facts.

Undisputed Facts

14     The following facts were undisputed:

(a)     Both Royal Kashmir and Oriental Carpets were in the business of selling carpets. The accused, as the controller of Royal Carpets bought carpets from Oriental Carpets through Kamran, the controller of Oriental Carpets since before 2013.

(b)     Torrential downpours were experienced in most parts of Singapore on the night of 29 November 2015 to the early hours of 30 November 2015.

(c)     On 30 November 2015, after the discovery of rainwater damage to 40 Arab Street, Royal Kashmir submitted an insurance claim to Allied World for damage caused to its stock including carpets as well as for consequential losses.

(d)     On 1 April 2016, the accused submitted scanned copies of invoices from several carpet retailers, including the two Oriental Carpets invoices numbered 1377 and 1378 to Areda Adjusters. Areda Adjusters was the loss adjuster assigned by Allied World to assess the damage caused to Royal Kashmir’s goods.

(e)     The accused wanted to submit as many sales invoices as possible to the loss adjusters as he knew that the more supporting invoices he provided, the higher the insurance payout would be.

(f)     The two invoices purport to show that on 4 February 2013, Oriental Carpets sold the carpets stated in the two invoices to Royal Kashmir.

(g)     Acting on the two invoices issued by Oriental Carpets or with Oriental Carpets’ authority, amongst other invoices submitted by the accused, Allied World made an insurance payout of $653,500 in July 2017 to Royal Kashmir.

(h)     Clause 7 of the Policy Conditions Applicable To All Sections listed at Section 9 of the Allied World insurance policy[note: 7] provides:

7) Fraud

If a claim is in any respect fraudulent, or if any fraudulent means or devices are used by You or anyone acting on Your behalf to obtain benefit under this Policy, or if any injury, Damage or legal liability, or expense occasioned by Your wilful act or with Your connivance all benefits under this Policy shall be forfeited.

Allied World would not have made any insurance payout if it had known that any invoice submitted by the accused was forged.

(i)     The accused was not authorised by any person to write false particulars in the two Oriental Carpets invoices.

The Law on Forgery

15     The offence of forgery is made out if the accused had fraudulently written the material particulars in the two invoices with intent to cause it to be believed that they were made by or by the authority of Kamran/Oriental Carpets when he knew that they were not so made, with the intent to support Royal Kashmir’s insurance claim with Allied World or to cause Allied World to make an insurance payout.

16     Under s 463 of the Penal Code, a person who makes any false document or part of a document with intent to support any claim or to cause any person to part with property, commits forgery. Further, under s 464 of the Penal Code, a person is said to make a false document who dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by or by the authority of a person by whom or by whose authority he knows that it was not made.

Assessment of Evidence and Findings

17     The Prosecution asserts that the key issue at trial was whether the accused forged the writings and signatures in two invoices. This, in turn, depended on whether Kamran sold the goods in two invoices to the accused/Royal Kashmir. Once it is proven beyond reasonable doubt that the accused had forged the writings and signatures in the invoices, it follows that the accused did so to cheat Allied World into disbursing an insurance payout to Royal Kashmir. To prove its case on the 2 proceeded charges, the Prosecution had relied on the evidence of 13 witnesses.

18     I now turn to the two key issues before me.

Issue 1: Whether Oriental Carpets sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 with a total value of $253,852.60

19     I first considered Kamran’s direct evidence at trial. He testified that he was in the business of selling, washing and servicing carpets since 2005. He also testified that he was the only one responsible for the opening and signing invoices[note: 8]. He gave evidence that he did not issue the two invoices numbered 1377 and 1378[note: 9] (as shown below) and he had not sold the carpets as listed in the two invoices to Royal Kashmir. He further gave evidence that the amount in the two invoices ie $171,225.60 and $82,627 was not the kind of amount that he would prepare[note: 10] and that both his handwriting and his signature were not on the invoices[note: 11].

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20     Kamran testified that the two invoices with the Oriental Carpets letterhead were from his Oriental Carpet invoice booklet[note: 12] but the contents stated under the ‘Stock Number’, ‘Description’ and ‘Amount’ was not in his handwriting[note: 13]. He explained that he did not write in that manner and was certain that the carpets listed were not from his stock of carpets. He further explained his system of managing his inventory of carpets and the issuance of invoices for Oriental Carpets sold with reference to his green invoice book[note: 14] and his Oriental Carpets Stock Book (“stock book”)[note: 15].

21     He testified that in 2013, he only had one invoice book with 50 sequential invoice numbers ie 0851 to 0900 for the period 11 January 2013 to 28 August 2013. When the Prosecution went through all the invoices in the invoice book, he explained the difference between a sales invoice and those issued for the cleaning or repair of carpets. He also explained invoices numbered 0891, 0892, 0893, 0895 and 0898 involved goods he had returned to his suppliers after the deal fell through. Nevertheless, as he had received the carpets in the company’s name, he allowed his suppliers to use these invoices to sell the carpets externally. For instance, for invoices 858 and 860, the description was written by his supplier ‘Danish’ with Kamran’s permission and was signed by Kamran. He testified the amount in such invoices would not be included when the accountant prepared the accounts.

22     Kamran gave evidence that his practice was to record all his carpet stock in his green stock book. Whenever he received his goods, he would record the details in his stock book[note: 16]. He started using the stock book since 2005 and was still using it. He explained he made most of the entries in his stock book. Previously when he had a worker, at times the worker would make entries too[note: 17].

23     He further explained he wrote the details of his stock based on the information in the packing list provided by the suppliers whenever he makes a purchase.[note: 18] He would enter the date, the stock number, the name of the company (supplier), description of the carpet, the size, maximum price and actual sale price.[note: 19] Kamran testified that he kept the packing lists and the invoices and when it was time to do the accounts, he would pass it to the accountants for them to file[note: 20]. He also testified on how he prepares a sales invoice with reference to invoice 0867 dated 1 March 2013 from the Oriental Carpets invoice book.

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24     Kamran explained that the reference 2911 under the Stock No column is from his stock book. He further explained that under Stock No, he wrote the number ‘2911’ and under the Description column, he wrote ‘PAKISTAN SUTRIL’. According to him, he obtained the description of the carpets from his supplier’s packing list. During his testimony, I observed that Kamran was able to methodically locate the corresponding stock number 2911 with the matching description stated in the invoice at page 148 of the stock book as shown below.

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25     He testified that unlike the two invoices ie P2 and P3, he would not have written the number of pieces under the column of Stock Number and under Description. He further testified that he did not have the sizes nor such expensive amounts as stated in two invoices.

26     Based on the above, I agreed with the Prosecution that there were significant discrepancies between the invoices in P2 and P3 and the invoices for genuine sales in 2013 (the year in which P2 and P3 were purportedly issued) and the sales therein that purportedly took place. I further agreed with the Prosecution that a comparison of P2 and P3 against the invoices in P4 and P5 (undisputed genuine invoices issued by Oriental Carpets in 2013 for genuine sales in that year) showed the following:

(a)     None of the genuine invoices contains descriptions of goods similar to descriptions used in P2 and P3, namely describing the materials such as “silk on cotton”, “wool on kilim”, etc. Instead, most of the invoices for eg in P4 and P5 set out the design of the carpet such as “Super Kazak”, “Green Persian”, “Light Green” etc. Where the materials used were described, the words “cotton” or “wool” cannot be found in them.

(b)     The invoice numbers of P2 and P3 ie 1377 and 1378 were inconsistent with the invoice numbers used in the genuine invoices issued in the same period ie 0850 to 0900. If the sales recorded in P2 and P3 took place, invoices numbered between 0850 and 0900 would have been used by Oriental Carpets. Instead, the fact that P2 and P3 were numbered 1377 and 1378 showed that they were written sometime after 2013. This cohered with Kamran’s evidence that he gave the invoice booklet containing invoice templates numbered 1377 and 1378 to the accused in 2016.

27     In my view, Kamran’s testimony was internally consistent and was corroborated by the fact that his stock book does not contain any description of the goods stated in the two invoices. He explained that the description of the stock in his invoices would be the same as those in his stock book. I observed that this was unchallenged by the Defence. Nevertheless, the Defence alleges that Kamran’s evidence is not worthy of belief as most of his evidence was untrue or incredible and sought to impeach Kamran’s credit pursuant to s 157(c) of the Evidence Act 1873. I disagreed with the Defence’s position, and this is addressed later in my grounds below.

28     Kamran’s testimony that the two invoices were not genuine Oriental Carpet invoices was also corroborated by his wife, Madam Sadia Kamran Butt, his former workers, Ishrat Iqbal and Suraya Begum Binte Gulab Khan who testified that they had not prepared the two invoices 1377 and 1378. I noted that the Prosecution highlighted that it was also not alleged by the Defence that Kamran’s son wrote P2 and P3. In any event, Kamran’s son who was born in 2003[note: 21], would have been 10 years old in 2013 and as such could not have prepared the invoices. Based on the above, it was clear that no one associated with Oriental Carpets had prepared the two invoices.

29     Kamran’s testimony was externally consistent with the objective evidence of Mr Bafna Rajesh Jograj, the external accountant for Oriental Carpets from 1 July 2012 to 30 June 2013. He testified that based on the records of the carpet sales with serial numbers kept in the Excel sheet, the two invoices 1377 and 1378 were not submitted by Kamran. The last number submitted was 900[note: 22]. He also testified that he had not seen the said two invoices[note: 23].

30     According to him, Kamran had not submitted invoices for such large amounts namely $171,225.60 for invoice 1377 and $82,627 for 1378. He explained that Oriental Carpets’ reported sales was about $11,800 and not more than $12,000. His evidence on the size of Oriental Carpets reported sales was not disputed by the Defence. He further explained that Oriental Carpets was considered a small and medium-sized enterprise, and such a company cannot have ‘big’ sales because they are unable to sustain the stock. He testified that Oriental Carpets average stock maintenance was less than $100,000[note: 24].

31     For the period after June 2013, Kamran’s testimony was supported by the objective evidence of Mr Suppiah Singaram who was Oriental Carpet’s accountant from 1 July 2013 to date. He had prepared a Ledger Account[note: 25] containing an exhaustive list of the transactions between Oriental Carpets and Royal Kashmir from 1 July 2013 to 30 June 2014 (and inclusive of any sales in the preceding year). The Ledger Account reflected the invoice numbers 0901, 0902, 0903, 0916, 0922, 0923 and 0973. It did not contain any record of the sale of the goods in P2 and P3 nor the corresponding invoice numbers 1377 and 1378.

32     Mr Suppiah Singaram testified that the two invoice numbers 1377 and 1378 were never submitted to him[note: 26]. He further testified that Kamran had never submitted any sales invoice with such amounts as his invoices ranged from $3,000, $5,000 to $6,000[note: 27].

33     Based on the Ledger Account, I noted that it was undisputed that Mr Suppiah Singaram did not receive any invoice from Oriental Carpets recording such sales in Exhibits P2 and P3 being made in 2013. I accepted Prosecution’s submissions that the reliability of the Ledger Account in setting out all the sales transactions between Oriental Carpets and Royal Kashmir was buttressed by the fact that there were seven other sale transactions between Oriental Carpets and Royal Kashmir in the material period. Hence, I agreed with the Prosecution as Kamran had honestly and duly reported the sales made by Oriental Carpets to Royal Kashmir in the same period in 2013 as that written in P2 and P3, there was no reason for Kamran to fail to report the sales in P2 and P3 if they had indeed occurred.

34     I next considered the accused’s version of events. I also noted that the accused gave materially inconsistent accounts of the events surrounding the delivery of the two invoices 1377 and 1378 and the carpets listed in the invoices. During his examination-in-chief, the accused testified that Kamran had delivered the carpets listed in the two invoices to 40 Arab Street on 4 February 2013. As the accused was busy, Kamran had asked Rehana to sign on the invoices[note: 28]. According to him, Kamran then left the invoices on the table, and it was only 2 hours later that he had sight of the invoices[note: 29].

35     Nevertheless, in his long statement recorded on 15 July 2017[note: 30], the accused stated that on 4 February 2013, he went to Oriental Carpets located at Paya Lebar Crescent and bought the carpets from Kamran[note: 31]. The payment was agreed to be made in instalments in cash or in cheques. In his statement, he stated that the invoices were prepared by Kamran[note: 32] and notably stated that he did not know who had signed on the left side of the invoices[note: 33]. However, in his further statement recorded on 16 Aug 2017[note: 34], the accused stated that Kamran came to the accused’s shop on 4 February 2013 to hand over the goods. He then passed the invoices to Rehana who initialled them.

36     Curiously, during his cross-examination, the accused testified that he did not order the items listed in the two invoices. According to the accused, Kamran mentioned that he had some goods from his paternal and maternal uncles and sought the accused’s assistance to sell the items. There was no agreement to say that the accused purchased these goods from Kamran. The understanding was once he sold an item, he would pay Kamran.[note: 35]. I noted that this version that the items in P2 and P3 were on consignment was not put to Kamran by the Defence. It was also inconsistent with his Defence that he had bought the carpets listed in the invoices in 2013.

37     The accused further testified that he selected a few items and Kamran delivered it over three or four occasions about two weeks prior to the date stated in the two invoices[note: 36]. According to him, it must be sometime in January 2013 as the invoices were both dated 4 February 2013. The items were delivered to 40 Arab Street and the invoices were given one to two weeks after 4 February 2013[note: 37]. Kamran gave Rehana the invoices as the accused was busy with his Turkish supplier. Kamran had walked into the shop where Rehana was and asked her to append her signature. He then left the two invoices on the shelf[note: 38].

38     All things considered; I found the accused to be an unreliable witness as he was internally inconsistent in his evidence. Based on his evidence as discussed above at [34] to [37], I agreed with the Prosecution that the accused gave four materially inconsistent versions of events regarding how Royal Kashmir purportedly obtained the two invoices from Kamran.

39     In view of the evidence discussed above, I agreed with the Prosecution that Kamran has consistently maintained, in his evidence-in-chief and under cross-examination that (i) he did not sell the goods in P2 and P3 to the accused; and (ii) he never owned those goods.[note: 39] I also agreed that Kamran’s evidence was corroborated by various contemporaneous documentary evidence which show that Oriental Carpets neither sold those goods nor issued the two invoices.

40     Hence, I agreed with the Prosecution that the significant discrepancies from the genuine invoices as well as the material inconsistencies in the accused’s evidence showed that P2 and P3 were false. Although the accused asserts that the two invoices 1377 and 1378 were provided by Oriental Carpets when the carpets were delivered in early 2013, this was inconsistent with the objective evidence that the invoice numbers issued in 2013 ought to be from the range of 0850 to 0900.

41     I further observed that unlike Kamran, the accused had not produced any corroborative documentary evidence such as a similar stock book which listed the carpets in the two invoices 1377 and 1378 as part of his inventory or stock. There was also no corroborative evidence from any of the accused’s accountants of Royal Kashmir’s average stock maintenance in 2013 or when he made the insurance claim in 2015 which could accounts for the total value of $253,852.60 of the carpets listed in the two invoices. Accordingly, I found that Oriental Carpets had not sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 and that these invoices were false.

Impeachment application

42     The Defence had sought to impeach Kamran’s credibility pursuant to s 157 (c) of the Evidence Act 1873 based on the inconsistencies within his own testimony as well as with other witnesses and in his police statements. The Defence asserts in the Closing Submissions that Kamran’s testimony is not worth of belief as most of his evidence was untrue or incredible. Although Kamran claimed that only he was authorised to issue invoices, there were other people who issued Oriental Carpets invoices, most prominently, his supplier ‘Mr. Danish’.

43     The Defence further asserts that Kamran was ‘cooking the books’ ie he was evading taxes as the invoices which should have been given to his accountants, and he should have paid tax on because they were goods sold by his company. According to the Defence, Kamran tried to explain it away by saying that he was returning goods that he had bought from Danish, which made no sense. The Defence also asserts that Danish, who appears to be an overseas carpet supplier with no right to engage in trade in Singapore, was using Kamran’s invoices to sell goods to Singapore customers.

44     The Defence further asserts that Kamran has lied about almost every aspect of the evidence that he gave in Court. In his statement recorded on 23 June 2017 (D2), he lied about the provenance of the disputed invoices, he lied about telling the police that the accused had given him P2A and P3A (and told him not to give them to the police), he did not mention meeting with the accused to give him the invoices, he did not mention the difficulty in finding parking, he did not mention his “mother brother” or his daughter in hospital, and he lied about whether other people issued his invoices. He lied about every aspect of his evidence that he gave in Court.

45     In my assessment of the evidence, I considered the fact that the events in question happened between 2013 and 2017, hence there was a lapse of time from the occurrence of the events in question and Kamran’s testimony in court in 2020. Hence, it was necessary that his testimony should be assessed with this context in mind. In Public Prosecutor v Singh Kalpanath [1995] 3 SLR(R) 158 at [60] Chief Justice Yong Pung How held that adequate allowance must be accorded to the human fallibility in retention and recollection. It is also common to have varying account of the same incident by the same person. No one can describe the same thing exactly in the same way over and over again: see Chean Siong Guat v PP [1969] 2 MLJ 63 at [63] to [64].

46     In Kwang Boon Keong Peter v Public Prosecutor [1998] 2 SLR(R) 211 (“Peter Kwang”), Yong CJ explained at [18] that “the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity”. Yong CJ also explained the meaning and purpose of impeachment as follows at [19]:

There is a close relationship between the credit and credibility of a witness. The credit or discredit of a witness relates to his credibility. This brings us to the question of what it means by impeaching a person’s credit. The Oxford English Dictionary (2nd Ed) defines the word, “impeach”, as “to challenge, cast an imputation upon, attack”. To impeach a witness’ credit is to disparage or undermine his character and moral reliability and worth. The purpose of the impeachment of a witness’s credit is to undermine his credibility by showing that his testimony in court should not be believed because he is of such a character and moral make-up that he is one who is incapable of speaking the whole truth under oath and should not be relied on. …

47     For the credit of a witness to be successfully impeached under s 157(c) of the Evidence Act 1893, the following requirements must be met (Peter Kwang at [21]-[26]):

(a)     The witness’s former statement must be proved;

(b)     There must be an actual inconsistency between the witness’s oral evidence and the statement which is not a minor difference or an apparent discrepancy;

(c)     The inconsistency must be so serious or material as to affect the credit of the witness;

(d)     The conflicting versions must be carefully explained to the witness, and he or she must have a fair and full opportunity to explain the difference; and

(e)     The witness is unable to provide a convincing or credible explanation for the difference.

48     Material inconsistencies are defined as inconsistencies that go to the crux of the charges against the accused person: see Peter Kwang at [26] and Mohammed Zairi bin Mohamad Mohtar v Public Prosecutor [2002] 1 SLR(R) 211 (“Mohammed Zairi”) at [34]. Even so, even if the witness’s credit is successfully impeached, this does not mean that all his or her oral testimony will have to be disregarded (Public Prosecutor v BZT [2022] SGHC 91 at [176]). The court would still have to scrutinize the whole of the evidence to determine what is true and which aspects should be disregarded (Teo Geok Fong v Lim Eng Hock [1996] 2 SLR(R) 957 at [42]).

49     In the present case, I was of the view that the requirements of an impeachment application had not been satisfied. During Kamran’s cross-examination, when the Defence referred to his police statements, I had queried whether it was to impeach him or to refresh his memory as Kamran was unable to recall going to the station to give a statement[note: 40]. The Defence stated that ‘at the moment’ it was being used to refresh his memory because he was ‘saying one thing and saying the other’. The Defence further stated that he was using the statement for ‘the purpose of s 157 in relation to his credit’[note: 41].

50     In my view, the Defence had not set out the alleged material inconsistencies it was relying on in respect Kamran’s evidence and I was not invited to determine if the inconsistencies were material. I agreed with the Prosecution, even if both statements were inconsistent, the Defence did not give Kamran a fair and full opportunity to explain the inconsistency. Hence, I agreed with the Prosecution that no weight should be placed on these alleged inconsistencies. In any event, I was of the view that these inconsistencies were not so material as to affect the crux of the charges. As stated earlier, I was mindful and considered that there was a considerable lapse of time between the incidents and Kamran’s testimony. It would therefore be extremely difficult for him to remember the details of each event with a high degree of accuracy. Hence, when delivering my verdict, I ruled that Kamran’s credit had not been impeached[note: 42].

51     I next turn to the issue of who had created the two false Oriental Carpet invoices. It was the Prosecution’s case that the fact that the sales recorded in P2 and P3 never took place showed that the two invoices were forged to create the false impression that the purported sales were genuine. I therefore had to determine who was responsible for the forged writings and signatures in these invoices.

Issue 2: Whether the accused forged the invoices between November 2015 and April 2016 by fraudulently writing and signing on the Oriental Carpets’ invoices numbered 1377 and 1378.

52     To determine whether the Prosecution had proven that it was the accused who was responsible for the forged writings and signatures in the two Oriental Carpets’ invoices, I considered the circumstances that led to their creation. Based on the evidence before me, I noted that each invoice is in triplicate, with the original or customer copy being in white while the remaining two copies are in blue and yellow. In the present case, the white copies[note: 43] were seized from the accused’s house while the blue copies[note: 44] were seized from Kamran. The yellow copies of the invoices were not part of the evidence before me.

53     I noted that although the water damage occurred in November 2015, it was only sometime in 2016, the accused told Kamran that some of the carpets he bought from Oriental Carpets had become defective and that he wanted to make an insurance claim[note: 45]. This coheres with the evidence from Lee Lin Yong Mark, insurance loss adjuster from Areda Adjusters Pte Ltd that he received the scanned copies of the invoices via email on 1 April 2016[note: 46].

54     According to Kamran, as the accused was a very good friend whom he trusted very much, he had passed his company’s invoice book[note: 47]. Kamran explained that he gave his unused invoice book which included invoice numbers 1377 and 1378 to the accused[note: 48]. As Kamran had difficulty finding parking space when he went to the accused’s shop, he left the entire invoice booklet with the accused and told him to fill up Oriental Carpet’s stock number, the description of the carpets as well as the amount for the carpets that were defective. Kamran told the accused that he would come back and append his signature on the invoice when the accused was done filling up the invoice[note: 49]. According to Kamran, the invoice book was completely empty when he gave to the accused[note: 50] and to date the accused had not returned the said invoice book.

55     Kamran testified that sometime in 2017 after he had lodged a police report[note: 51] against the accused, the latter came to his office in Paya Lebar and gave him the blue copies of the two invoices[note: 52] numbered 1377 and 1378[note: 53]. The accused told Kamran not to give the two blue copies to the police. After examining the copies of the invoices, Kamran found that it was not his stock, nor his handwriting and that the accused ‘used his letterhead’ ie the Oriental Carpets invoices for somebody else’s carpets[note: 54]. Subsequently Kamran handed over the copies of the two blue invoices to the police[note: 55].

56     In view of my earlier finding that Kamran did not sell or own the goods in P2 and P3, I agreed with the Prosecution that it followed that Kamran did not issue or write P2 or P3 as there was no reason for him to write or issue such invoices for sales that did not take place. As highlighted by the Prosecution, it was also not the Defence’s case that Kamran had issued or written P2 and P3 despite the sales not taking place. Further, I accepted the fact that Kamran did not write P2 and P3 was supported by the expert opinion of the HSA handwriting expert Nellie Cheng. Her opinion that Kamran did not write P2 and P3[note: 56] was unchallenged by the Defence.

57     In addition, I agreed with the Prosecution that the fact that Kamran did not write or issue P2 and P3 was corroborated by the fact that they were customer copies handed by the accused to Areda Adjusters contained Rehana’s signatures acknowledging receipt of the goods, while the blue carbon copies in P2A and P3A which were obtained by the police from Kamran did not have these signatures. I accepted the Prosecution’s submissions that this supported Kamran’s account that he did not sell or deliver the goods in P2 and P3 and diminishes the credibility of the accused’s version of events.

58     As highlighted by the Prosecution, the accused had conceded that it would have been strange for Kamran to have Rehana provide an acknowledgment signature on customer copies ie P2A and P3A without the signatures being duplicated on the carbon copies kept by Kamran[note: 57]. Indeed, if the sales took place, Kamran would have wanted the acknowledgment signatures to be on the blue carbon copies kept by him as proof of delivery should there be any subsequent dispute on whether he had delivered the goods.

59     I agreed with the Prosecution that it was far more likely that the accused appended the signatures on P2 and P3 before giving them to Areda Adjusters while separately returning the unsigned P2A and P3A to Kamran. In my view, he had done so to cover his tracks as the blue copies are usually retained by the seller for accounting purposes. Accordingly, I rejected the Defence’s suggestion that Kamran could have filled up the invoices P2 and P3 either in his office or at home as he would have had the blue copy of the previous invoice and that there was no need for Kamran to bring a new invoice book[note: 58].

Expert Evidence

60     What remains outstanding was whether the handwriting on P2 and P3 was attributable to the accused which the accused denies. To this end, both the Prosecution and the Defence called their own experts on handwriting analysis. It is noteworthy that the Defence only informed the Prosecution of its intention to call a potential expert witness on 15 October 2021 (Day 15 of the trial) during the Case for the Defence and before DW3 Mr Khawaja Mohammad Ashfaq Baba’s testimony.

61     On 18 October 2021, the Defence served a notice pursuant to s 231(1) of the Criminal Procedure Code (Cap 68, 2012 Rev. Ed.) to produce and rely on the expert handwriting report prepared by Ms Melanie Jayne Holt, a Forensic Document Examiner dated 16 October 2021 and to call her as a Defence witness.

62     Subsequently on 21 October 2021, I allowed the Defence’s application for Ms Holt to give evidence via remote communication technology from her home in New South Wales, Australia pursuant to s 28(2) of the COVID-19 (Temporary Measures) Act 2020.

63     I shall first deal with the evidence of the Prosecution’s expert, Ms Nellie Cheng, a Senior Forensic Scientist with the Forensic Chemistry and Physics Laboratory of HSA.

Prosecution’s Expert Evidence

64     Inspector Kumarasamy P Indera had submitted 20 exhibits ie P2 to P22 as listed in Part B of her report[note: 59] to the Forensic Chemistry and Physics Laboratory of HSA on 25 September 2017 at 11.10am and 4 October 2017 at 9.10am respectively. Ms Cheng testified that she received specimen handwriting from three different persons and was asked to determine if any of the three could have written the questioned handwriting. She was also asked to determine if P2 and P3 could be associated with one of the Oriental Carpets invoices (P4).

65     The purpose of the submission as set out at Part C of her report was to examine the various exhibits and to report:

(a)     If the writer of the specimen handwriting in "MKK/0 1" to "MKK/04'' ie Kamran, the writer of the specimen handwriting in "AAS/01", "AAS/02" and AAS/3" to "AAS/10" ie the accused, or the writer of the specimen handwriting in "RBG/01" to "RBG/03'' ie Rehana could have written the questioned handwriting in "CADPKY/01" and "CAD/PKY/02'' ie Exhibits P2 and P3 and

(b)     If the two invoices "CAD/PKY/0 I" and "CAD/PKY/02" could be associated with the specimen invoice No: 0875 in "CAD/PKY/03" ie one of the invoices found in Kamran’s invoice booklet ie P4.

Methodology

66     Ms Cheng testified that she examined all handwriting specimens said to be the specimen handwriting of the writer[note: 60]. She explained that the handwriting specimens were examined using a microscope. She used the methodology written in the laboratory methods manual in her examination. She further testified that she had examined the questioned handwriting P2 and P3 and recorded the handwriting features[note: 61]. She explained the handwriting features she examined were the stroke quality, slants, slopes, pen pressure, formation of characters, relative alignment of letters inside words, relative alignment of the words or punctuation relative to the ruled lines.

67     She elaborated that during document examination, the examiner compares features of the questioned handwriting and then compares the range of variation of the specimen handwriting to see whether the features of the questioned handwriting fall beyond or within the range of variations of the specimen handwriting. She testified that examiners must undergo annual proficiency tests to reduce subjectivity.

68     Ms Cheng explained that as a questioned document examiner, she was not just looking at the pictorial appearance. She looks at the handwriting features namely the pen path, how it is formed, the angle, the pen pressure etc. She further explained that she looks at the list of handwriting features to determine whether it falls beyond or within the range of variations. She follows guides and best practices and stated that there are lists of what handwriting features examiners must go through for every one of the examinations.

69     She testified that she recorded the handwriting features of the request specimens, and the normal specimens obtained from the accused, Kamran and Rehana. She then did a comparison between the features of the questioned handwriting specimens and the features of the normal specimen handwriting. Following that, she evaluated the similarities and differences while factoring the limitations in such an evaluation and then rendered her opinion[note: 62]. She explained that for handwriting examination generally, the limitations would include the specimens or the questioned handwritings being non-original[note: 63].

70     In the present case, Ms Cheng found the request specimen of the accused’s handwriting to be slightly unnatural[note: 64]. She explained that this could be due to the writer’s mental or physical state. Where the unnatural handwriting was intentional, it could be that the writer intentionally ordered or controlled the handwriting habit. She opined that the handwriting was executed at a slow speed. Nevertheless, she testified that this limitation did not affect her conclusion as the writer’s ie the accused’s normal handwriting specimens was submitted[note: 65].

71     Ms Cheng explained that a normal handwriting specimen refers to the handwriting of a writer which was executed in the normal course of life for example writing in credit card or cheques, letters, greeting cards etc[note: 66]. According to her, the disadvantage of a normal specimen is that it may not contain the characters in the questioned handwriting. She further explained the advantage of a request specimen is that the investigation officer could direct the writer to write in accordance with what was contained in the questioned handwriting specimen so that a direct comparison could be made. The disadvantage on a case-by-case basis, is that the writer may produce unnatural handwriting either intentionally or unintentionally. As such, the features in the normal specimen handwriting would be useful as it would show the normal habits on how the writer executes his handwriting[note: 67].

72     During her cross-examination, she agreed that the best practice would be to have handwriting as contemporaneous to the questioned handwriting as possible to avoid the evolution or the change that a person’s handwriting might undergo over time[note: 68]. When the Defence took issue with the fact that the methodology used was not listed in her report, she explained that all HSA scientists refer to the methods manuals in their laboratory and that her laboratory is accredited. There are procedures to follow, and the reports are reviewed by another qualified examiner to ensure quality. According to her, examiners are trained to follow the guidelines and protocols, and the accreditation of the laboratory is reviewed annually[note: 69]. During her re-examination, she explained that the methodology was not stated in her report as she wanted to give the reader concise information of the examination[note: 70].

73     Ms Cheng explained the eight levels of the different degrees of certainty she applied in respect of the level of evidence observed between an unknown writing or signature and the specimens provided namely:

1.     “The writer of this wrote that.” - This is a positive finding indicating that beyond all reasonable doubt the writer of the questioned document is identified. There are significant similarities, and no significant differences noted between the questioned and specimen handwriting. The probability of finding another person at random with similar handwriting is negligible.

2.     “It is highly probable that the writer of this wrote that.” - There are significant similarities and no unexplainable differences noted between the questioned and specimen handwriting, and the possibility that another person has written it is not so remote as to be negligible, but it would still be difficult to find at random another person whose writing is so similar, and the possibility of simulation is equally unlikely.

3.     “It is probable that the writer of this wrote that” - There are similarities noted between the questioned and specimen handwriting. The evidence is insufficient to indicate a high probability but is still points towards common authorship. It could be that the quantity of writing is small, or that there are few characteristic features.

4.     “The possibility of the writer of this having written that cannot be ruled out.” - Although there may be some differences noted between the questioned and specimen handwriting, there still exist a small number of similar features which suggest possible common authorship. One possibility is that there is reason to believe that there is disguise in the specimen handwriting. It could also be because of some limitations in the writing such as no normal specimen writing available.

5.     “The evidence is inconclusive.” - This is used when an effective comparison cannot be conducted. The questioned writing may be disguised or too limited in quantity and nature, or the specimen writing may be unsuitable. In signature comparison, it could also be that the design of the questioned signature is different from that of the specimen signatures and there is no basis for comparison. Another reason could be that only very poor-quality photocopies or facsimile copies are submitted.

6.     “There is no evidence to indicate that the writer of this wrote that.” - This is used when there are differences noted between the questioned and specimen writing. The evidence is insufficient to indicate a high probability but still points towards different authorship. It could be that only photocopied documents are available, or that the questioned writing is limited in nature, or that the number of specimen writing available is limited.

7.     “It is unlikely that the writer of this wrote that.” - This is used when there are significant differences in features such as line quality and pen pressure noted between the questioned and specimen writing, and disguise can be ruled out, but the number of specimen writing available may not be enough to exclude him completely.

8.     “The writer of this did not write that.” - This is used when the forensic scientist is satisfied that the differences between the questioned and specimen writing are sufficient and significant enough to exclude him.

She explained that different countries have different levels of conclusions.

74     In her expert report, when Ms Cheng compared the questioned handwriting with the accused’s specimen handwriting, she found similarities in formation and relative alignment of strokes of the English alphabet letters and numerals between them. To illustrate, she provided examples of the similarities she noted at paragraph 4 of her report and referred to the attached Comparison Chart for more illustrations.

75     At paragraph 5, she opined that it is probable that the accused who was the writer of the specimen handwriting in "AAS/01", "AAS/02" and "AAS/3" to "AAS/10", wrote the questioned handwriting in the two invoices P2 and P3. She arrived at this conclusion of ‘probable’ after evaluating the weight of the similarities and the differences. She explained that when she evaluated the features, the evidence was insufficient to indicate a higher probability which is at level 2 or level 1 as set out above.

76     At paragraph 6, she stated that when she compared the questioned handwriting with Kamran’s normal and request specimens, she found differences in formation and relative alignment of strokes of the English alphabet letters and numerals between them. Hence, she opined that there is no evidence to indicate that Kamran wrote the questioned handwriting in the two invoices.

Defence’s Expert Evidence

77     I now turn to the evidence of the Defence’s expert witness, Ms Holt. Initially, she testified via remote communication technology using the Zoom application from her home in Australia. She was only present in court midway through the trial during her cross-examination by the Prosecution. Unlike Ms Cheng, I noted that she had not examined the various physical handwriting specimens under a microscope and excluded several request specimens namely P14, P18 and page 124 of P19 (as shown below) although the accused had admitted that they were his handwriting.

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78     Only when she was present in Court, she used an eyepiece to examine some of the handwriting specimens including P2 and P3. I noted that although she acknowledged in her report that the documents may be legitimate specimens of the accused’s handwriting, she opined that they do not add value to the comparison[note: 71]. In my view, this limited the range of variations that she had considered in her opinion unlike Ms Cheng who had considered all the specimens.

79     In her report (D16), Ms Holt stated the purpose of her examination was to provide an expert opinion as to whether the handwriting on the disputed invoices P2 and P3 was written by the writer of the specimen material labelled P8 and P9 ie requested specimen of the accused and P13 - P20 (“seized specimen”). I observed that unlike Ms Cheng’s report who was given the specimens of three subjects and was asked to determine if any of the three persons could have written the questioned handwriting, the focus of Ms Holt’s report was limited to specimen materials associated with the accused.

80     I noted in her report, she had set out the limitations of her examination. She acknowledged that all the documents provided by the Defence for examination are reproductions ie non-originals. She stated that the examination of handwriting on non-original documents is limited to the pictorial features (such as shapes, proportions, relative placement, relative size and height relationships, baseline alignment, spacing, slant, and apparent structures and dynamics) that are evident on the copies submitted.

81     She further stated that it is often not possible to determine with certainty the finer details of structure (such as pen stroke direction, the location and nature of some pen lifts/pen stops) and dynamics (such as fluency and pen pressure variations) based on non-original (copy) documents[note: 72].

82     She also stated that there are limitations in the specimen material provided. She had indicated that apart from the two sets of requested specimen material P8 and P9 (provided by the accused), the authorship of the other documents is uncertain and only presumed to be that of the accused, even when the accused had admitted that the request specimen handwriting belongs to him. She opined that some of the documents likely or potentially contain the writings of more than one person. She explained a lot of the writing on these documents is lowercase cursive. She opined that this style of writing is not directly comparable to the handwriting contained on the disputed invoices, which is primarily uppercase hand printing[note: 73].

83     Ms Holt prepared a handwriting examination report[note: 74] and a supplemental expert report[note: 75]. As submitted by the Defence, in her report she sets out in detail inter alia:

(a)     the methodology employed and the examinations conducted by Ms Holt;

(b)     the premise and criteria of her analysis; and

(c)     her findings and the basis of those findings.

84     She employed the following four-step examination procedure based on published standards for handwriting comparison produced by various scientific organisations[note: 76]:

(a)     First, the exhibits are analysed by performing internal comparisons and evaluations before being subdivided into groups according to comparable styles. Consideration is given to: (1) handwriting features such as arrangement, design, and strokes; (2) the habits of ‘document completion’ such as alignment, size, and writing style; and (3) the variations displayed in these features.

(b)     Second, a comparison is made between the elements and features of each exhibit, and the similarities and differences between the exhibits are noted.

(c)     Third, the significance of the findings at the second stage is evaluated against various propositions and sub-propositions. Consideration is given to the presence of unnatural or distorted writing behaviour which may restrict the evaluation. An opinion is rendered based on the evaluation.

(d)     Finally, the opinion is verified through peer review by a second qualified examiner who reviews the submitted material and forms an independent opinion. The opinion issued in the final report is based on the consensus between the examiner and the “peer review” examiner.

85     It was highlighted by the Defence that in her report, Ms Holt stated that, to find that the same person ie the accused made both the specimen handwriting and the questioned handwriting, two criteria must be satisfied[note: 77]:

(a)     there must be sufficient individual features, in combination, that preclude the accidental occurrence of the writing of another person; and

(b)     there must be no significant or fundamental differences.

86     Ms Holt elaborated that this “combination” refers to the “cumulative value of those similarities and of difference[s] observed, that will help you inform your final opinion”. She explained further that if only similarities are observed between the questioned and specimen handwriting, with no unaccounted-for differences, the evidence would support that both handwritings were made by the same author. However, where both similarities and differences are found, one would have to weigh both observations, resulting in either a “very qualified opinion” or an “inconclusive opinion”[note: 78].

87     Ms Holt explained that a significant or fundamental difference refers to a difference in writing habit, and that such habits are more telling of authorship than similarities because they allow an expert to distinguish between differences resulting from different writers or from variations by a single writer[note: 79]. This is because two writings can be similar for several reasons including the age of the writer, how a certain group of writers are taught to write at school, or the singular nature of the design of some letters and numbers[note: 80].

88     In distinguishing between the types of differences, Ms Holt further explained that:

“[I]f they’re fundamentally different, and that’s in a sense that the construction of the letters are very different between the 2 samples, then it starts to raise the question: Were they written by different people? If the differences are potentially just variation that may not be displayed. So, that’s what you really need to work out. So if there’re fundamental differences, then at starting, potentially, it should point towards authorship by another person.[note: 81]”

According to Ms Holt, generic and class similarities should not outweigh differences. During her testimony, she repeatedly maintained that one significant or fundamental difference is sufficient to support that someone else other than the specimen writer wrote the questioned writing, and that more weight should be placed on differences than on similarities[note: 82]. I noted that in her analysis, unlike Ms Cheng she has used 7 tiers of certainty namely: Extremely strong support, very strong, strong, moderately strong, moderate, limited, inconclusive.

89     By employing the methodology above, Ms Holt concluded as follows:

(a)     There is very strong support that someone else other than the accused wrote “ROYAL KASHMIR TRADING” and the product information details on the disputed invoices based on the “repeated and fundamental differences in virtually every aspect of the writing including, but not limited to, size, letter design, slant and skill level between the questioned and specimen writing strongly support these entries being written by someone other than the specimen writer ie the accused.

(b)     There is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the specimen writer”.

Prosecution expert’s findings and conclusion preferred

90     All things considered; after a careful examination of the evidence of both experts before me, I preferred Ms Cheng’s evidence that it was probable that the accused had written the questioned handwriting in P2 and P3 for the reasons as set out below.

91     Ms Cheng had the benefit of examining the original specimens submitted by the police to HSA using a microscope. I agreed with the Prosecution that this enabled her to derive detailed handwriting features. She was able to examine the handwriting features such as stroke quality, slants, slopes, pen pressure, formation of characters, relative alignment of letters inside words, relative alignment of the words or punctuation relative to the ruled lines.

92     In contrast, Ms Holt’s examination of the handwriting on non-original documents ie reproductions of the specimens is limited to the pictorial features (such as shapes, proportions, relative placement, relative size and height relationships, baseline alignment, spacing, slant, and apparent structures and dynamics) that are evident on the copies submitted. As submitted by the Prosecution, Ms Holt was only able to examine reproductions, which she admitted could result in masked or distorted features, rendering her conclusion potentially inaccurate[note: 83]. While Ms Cheng could identify features, such as the fact that the “H” in P2 and P3 was formed using 3 separate strokes, Ms Holt stated that she could not see such a feature using reproduced images which she described to be of “poor” quality[note: 84].

93     Ms Holt acknowledged in her report that it is not possible for her to determine with certainty the finer details of structure such as pen stroke direction, the location and nature of some pen lifts/pen stops) and dynamics such as fluency and pen pressure variations of the documents. I was not convinced that this limitation was mitigated by her use of the zooming or magnifying function on her computer screen when examining the reproductions or her use of an eyepiece in Court to examine some of the physical specimens. I noted that there was no attempt by the Defence to arrange for Ms Holt to examine the physical specimens under a microscope although they were with the police after Ms Cheng returned them.

94     I noted that Ms Cheng had examined all specimens submitted by the police unlike Ms Holt who had excluded the reproductions of P14, P18 and page 124 of P19 (as shown at [66] above) as she regarded them as being “scrappy bits of paper”[note: 85]. This was even though the accused admits it was his handwriting. Ms Holt maintained that her conclusion would not change even though she had not considered them and had only looked at some of them in court. With respect, I agreed with the Prosecution that her exclusion of these specimens had the effect of limiting the range of the writer’s ie the accused’s handwriting features and range of variation she had considered in her examination.

95     I also noted that during her cross-examination, she agreed that for her to be able to assess or evaluate the writer’s range of variations, the amount of the specimens matters. She further agreed that it was unsafe when comparing handwriting to base it on a very limited specimen of handwriting features. The only potential exception would be if the writer has very complex and very consistent writing. She qualified the amount needed by stating it is writer-dependent[note: 86].

96     Further, I agreed with the Prosecution that Ms Cheng is more experienced than Ms Holt and has been a document examiner for a significantly longer period[note: 87]. I noted that Ms Cheng testified that examiners must undergo annual proficiency tests to reduce subjectivity and that her laboratory was accredited. She follows guides and best practices as well as the lists of what handwriting features examiners must go through for every one of the examinations. Hence, I found her evidence to be convincing and objective during her testimony before me.

97     During her cross-examination, Ms Holt accepted that nobody writes the same words and letters the same way twice. She further agreed that there would be some variation even within the same writer when he writes the same words again and again[note: 88]. Nevertheless, during her cross-examination when shown examples of similarities by the Prosecution, she doggedly maintained that there was nothing similar when comparing the accused’s specimen and questioned handwriting. Yet, she had concluded there is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the specimen writer. As Ms Holt is in private practice and is not with an accredited laboratory, it is unclear whether Ms Holt goes for an annual proficiency test to reduce the subjectivity of her assessment.

98     In her testimony, I observed that Ms Holt placed more weight on differences in relation to habit, structure and design than on similarities. According to her, significant differences have more weight than significant similarities. She explained that the consensus between the authorities on handwriting[note: 89] was that more weight should be attributed to differences in handwriting than similarities, and that repeated small differences are sufficient to establish clearly that writings are the work of two individuals even where there are a considerable number of general similarities.

99     I noted that in the extract submitted by the Defence titled “Handwriting Identification: Facts and Fundamentals” by Huber and Headrick (D20) at page 47, the authors observed that none of the widely recognised authorities on handwriting, Osborn, Hilton, Conway, Harrison or Ellen, each of whom have spoken on differences and of the considerations they must give, has provided definitions of the terms with which examiners might work with:

In a world of material things, virtually all things are different, if the examination of them is carried out at an appropriate level of precision. This is particularly so in the comparison of handwritings, for no two samples of the exact same text, by the same individual, with the same writing instrument, on the same date, and under the same writing and writer conditions will be identical in all aspects. Such being the case, the document examiner or handwriting expert is constantly challenged by the same provocative questions, What is a difference and when does it become significant?

Much has been written on the subject of differences, but as McAlexander points out, little has been provided to clearly establish for us what a fundamental difference is and what makes a difference significant. None of the widely recognised authorities on handwriting, Osborn, Hilton, Conway, Harrison or Ellen, each of whom have spoken on differences and of the considerations they must give, has provided definitions of the terms with which examiners might work with…”

100    I further noted that at page 49 of the extract, the authors had suggested a usable definition as set out overleaf:

Definition: In a comparison of questioned and known writings, a difference in a (questioned) writing is (1) a disparity in one of its discriminating elements of style or (2) a divergence in one of the discriminating elements of execution; either of which exceeds the expected range of natural variations for these elements within the writings within which it is being compared. In either case the difference is otherwise inexplicable.

101    I observed that while the general position taken by the recognised authorities is that even a single difference can outweigh a number of similarities, the exception would be when the divergence can be logically accounted for by the facts surrounding the preparation of the specimens or that the difference is capable of reasonable explanation. In the same extract at page 51, the authors opined that some apparent differences are not true differences indicative of different authors, but simply a variation of the same author resulting from extenuating circumstances.

102    In the present case, I was of the view that the repeated and fundamental differences observed by Ms Holt in her examination to justify her first finding that the specimen writing strongly support the entries “ROYAL KASHMIR TRADING” and the product information details being written by someone other than the accused, are not true differences. This is considering her own finding that there is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the accused. This coheres with the Prosecution’s case that Kamran had provided the accused with an empty invoice booklet for the latter to fill up with Oriental Carpet’s stock number, the description of the carpets as well as the amount for the carpets that were allegedly defective.

103    Accordingly, I accepted the Prosecution’s position that the handwriting in the two invoices is attributable to the accused, not Mr Kamran. Although, the accused’s claims that he never wrote or made any changes to the two invoices, it was undisputed that both the Prosecution’s handwriting expert and the Defence’s handwriting expert agree that the accused wrote the name and address of Royal Kashmir. Based on the totality of the evidence before me, I accept the Prosecution’s case that the accused was the author of the two invoices and that he had forged the particulars and the signatures in the said invoices.

104    I disagreed with the Defence’s submissions that the Prosecution’s case was essentially dependent on its expert evidence to establish that the accused wrote the disputed invoices P2 and P3. As discussed above, the Prosecution’s case was not where the Prosecution was relying solely on Kamran’s uncorroborated testimony and/or only on the handwriting expert’s evidence. Instead, the Prosecution relied not only on Kamran’s evidence but also the evidence of other witnesses as well as documentary evidence such as Kamran’s stock book and his accountant’s Ledger Account in support of its case.

105    Based on the totality of the evidence before me, I found the evidence of the Prosecution’s witnesses to be credible and reliable. Their testimonies corroborate each other and were consistent in material aspects and was externally consistent with the extrinsic evidence by the various objective documentary evidence. I also found that their evidence was also externally consistent with the extrinsic evidence from the various Prosecution witnesses.

106    In contrast, I found Rehana to be an unreliable witness. I agreed with the Prosecution that her testimony in court was materially inconsistent with her statement to the police as to when the goods in the two invoices were purportedly delivered. When the inconsistency was pointed out to her, although she initially testified that the statement was accurately recorded from her, she then claimed that the statement was inaccurately recorded. It was clear from her evidence before me that she came to Court to give evidence in favour of the accused and not the truth.

107    I also found Mr Khawaja Mohammad Ashfaq Baba to be an unreliable and immaterial witness. He has no knowledge regarding whether the two invoices were forged or whether Kamran possessed the goods stated in the invoices. It was clear that he took the stand to assist the accused. I agreed with the Prosecution that there was reason to doubt his impartiality as he had been the accused’s mentor since he was a child and that he has stated on multiple occasions that he did not want to see Kamran and the accused locked in legal proceedings.

108    Consequently, I rejected the Defence’s suggested motive that the present charges arose out of a long running civil dispute between the accused and Jan. The Defence had posited the discontinuance of the civil suit had kicked started the CAD investigations against the accused after Jan had alleged that the accused had used fraudulent invoices and obtained the invoices from Allied World’s lawyers. I agreed with the Prosecution that the Defence’s reliance on Jan’s role was a red herring.

109    All things considered, I found that the accused had forged the two Oriental Carpets invoices between November 2015 to April 2016 by fraudulently writing and signing on these invoices to deceive Allied World into delivering the said insurance payout. At the conclusion of the 25-day-trial, I was satisfied that the Prosecution had proven its case in respect of two charges in DAC 940886 of 2018 and DAC 940887 of 2018 beyond a reasonable doubt and convicted the accused on these charges.

Sentencing

Prescribed Penalty

110    The prescribed penalty for an offence of forgery for the purpose of cheating under s 468 of the Penal Code is imprisonment for a term which may extend to 10 years and shall be liable to a fine.

Antecedents

111    The accused had no antecedents.

Prosecution’s Submissions on Sentence

112    The Prosecution had sought a sentence of 2 years 6 months to 3 years’ imprisonment per charge, with both sentences running concurrently.

113    The Prosecution asserts that general deterrence is the primary sentencing consideration in the present case. As a financial institution offering insurance services, Allied World is an important part of Singapore’s financial market. In Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 (“Law Aik Meng”), the Justice V K Rajah identified offences that “affec[t] the delivery of financial services and/or the integrity of the economic infrastructure” as offences which attract general deterrence.

114    It was submitted that in Tan Thiam Wee v Public Prosecutor [2012] 4 SLR 141 (“Tan Thiam Wee”), the Honourable Justice Lee Sieu Kin (“Lee J”) agreed that the use of false invoices to cheat financial institutions “undermined the confidence of the financial industry and adversely affects the economic infrastructure”. It was highlighted that as Lee J went on to explain:

Financial institutions form a key part of the economic system and any abuse results in a loss of confidence requiring additional safeguards to be taken. This will lead to increased costs which will be passed to all users of the system. Thus, not only do such crimes cause direct monetary loss to the financial institution concerned, the resultant loss of confidence and increase in compliance cost is borne by the community as a whole.

115    It was further submitted that the failure to stem the tide of such offences that target or affect financial institutions or compromise the integrity of financial systems, threatens Singapore’s standing as an international financial and commercial hub: see Law Aik Meng at [24(e)] and Public Prosecutor v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando Payagala”) at [88].

116    The Prosecution asserts that insurance fraud, such as that committed in the present case, falls within the scope of offences that affect the delivery of financial services envisioned in Law Aik Meng, and therefore justifies a deterrent sentence. It was submitted that as the Court held in Public Prosecutor v Tijan Syafiq Bin Selamat [2012] SGDC 198, a case involving motor insurance fraud, at [15]:

[I]t cannot be denied that the provision and underwriting of motor insurance is a form of financial service provided to drivers and vehicle owners by an insurance company which is a financial institution. I would therefore consider motor insurance fraud cases to fall within this category of offences thereby justifying a deterrent sentence.

… These losses have and will continue to result in increasing costs of motor insurance which are passed on to consumers.

According to the Prosecution, the observations above equally apply to all forms of insurance fraud.

117    It was submitted that general and specific deterrence also come to the fore where the offence is difficult to detect (Law Aik Meng at [25(d)]) or where the offence is sophisticated and “replete with carefully orchestrated efforts and steps to avoid detection” (Fernando Payagala at [42]). The Prosecution asserts that the present offences embody these attributes and must consequently attract a deterrent sentence.

Aggravating factors

118    According to the Prosecution, there were several factors that justify a significant deterrent sentence in this case namely:

The amounts involved are substantial

119    Allied World made the maximum insurance payout of $653,500 to Royal Kashmir based on the policy limit. It was undisputed that Allied World would not have made any insurance payout if it had known that any invoice submitted by the accused was forged. Further, the amount of harm caused by the accused’s offences can be said to be $653,500. However, in the present case the Prosecution accepted that had the accused simply omitted to submit the questioned invoices, Allied World’s payout would have been the same, as the remaining invoices were sufficient to cross the insurance policy’s payout limit.

Offences highly planned and pre-meditated

120    The offences were highly planned and pre-meditated, and involved deceiving Kamran that he needed Oriental Carpets’ invoice book to re-issue genuine invoices, only to then forge invoices involving carpets with a purported value of more than 10 times that of its most expensive genuine carpet sales. It was submitted that even after the accused found out that he was being investigated by the police, he attempted to frustrate investigations by providing the carbon copies of the invoice to Kamran and telling him not to give them to the police. The Prosecution asserts that the premeditated nature of the offences attracts specific deterrence and justifies a heightened sentence: see Law Aik Meng at [22] and Fernando Payagala at [39].

Offences committed for profit

121    The offences were committed for profit. Persons who act out of pure self-interest and greed will rarely be treated with much sympathy: see Zhao Zhipeng v Public Prosecutor [2008] 4 SLR(R) 879 at [37].

Difficulty in detection

122    The offences were difficult to detect. This trial involved the calling of 17 witnesses, including two handwriting experts with differing opinions on whether the accused had authored the two forged invoice.

Lack of remorse

123    The accused had shown no remorse. The accused showed no hesitation in lying repeatedly, providing four materially different versions of events on the provenance of the invoices, then making baseless allegations against an officer of the Singapore Police Force after it was pointed out that his police statements were inconsistent with his evidence in Court.

124    The Prosecution asserts that of equal importance was the Lucas lie the accused made, claiming that he had never wrote or made changes to the invoices in question, a position that went against his own expert’s testimony, and a position that the accused has maintained until today. It was submitted that such a lack of remorse is a significant aggravating factor: see Thong Sing Hock v Public Prosecutor [2009] 3 SLR(R) 47 at [55].

125    Conversely, it was the Prosecution’s case that there were no mitigating factors in the present case.

The appropriate sentence

126    The Prosecution sought a sentence of 2 years 6 months to 3 years per charge, with both sentences running concurrently. It was submitted that the charges should not be distinguished by the amount in each invoice, as either invoice being found to be fraudulent would have resulted in Royal Kashmir not being paid a single cent.

127    It was further submitted that Chief Justice Sundaresh Menon observed in Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756 that the primary yardstick in sentencing for an offence of cheating (and similar white-collar offences) will often be the value of the property involved (at [48]). Similarly, in Wong Kai Chuen Phillip v Public Prosecutor [1990] 2 SLR(R) 361, Justice Chan Sek Keong (as he then was) held that it was a matter of “common sense” that all other things being equal, the larger the amount misappropriated, the greater the culpability of the offender and the more severe the sentence of the Court.

128    The present offences fall under s 468 Penal Code, which is forgery for the purpose of cheating. The Prosecution acknowledged that Allied World would have made the same payout of $653,500 to Royal Kashmir even if the accused had not submitted the two forged invoices, as the insurance payout ceiling of $653,500 would have been reached by considering the other invoices submitted by the accused. According to the Prosecution, the evidence is unclear on whether Allied World had included the sums in the two forged invoices in the payout that was eventually made.

129    Given these circumstances, it was submitted that guidance be drawn from Public Prosecutor v Leck Kim Koon [2020] SGDC 292 (“Leck Kim Koon”), a case involving offences under s 420 Penal Code in the context of invoice financing fraud where no direct financial harm was caused because the offender had duly repaid the victimised financial institution in full and on time. It was highlighted that the maximum prescribed imprisonment term for s 420 Penal Code is the same as s 468 Penal Code.

130    In Leck Kim Koon, the untraced offender deceived various banks into disbursing loans pursuant to invoice financing applications, by providing Bills of Lading that bore no relation to the goods stated in the invoices to be financed. The offender claimed trial to 6 charges involving a disbursed sum of USD 622,783.95 (approx. SGD 878,000). The accused had repaid this sum in full to the banks in line with the due dates of the loans; the banks suffered no loss. The Court considered that the appropriate sentence was 42 months’ imprisonment but imposed a reduced 36 months’ imprisonment on account of the accused’s ill health: at [295]. The sentence was upheld on appeal in by Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050. The offender’s criminal motion for a criminal reference to refer two questions of law of public interest to the Court of Appeal was dismissed in Leck Kim Koon v Public Prosecutor [2022] 2 SLR 595.

131    The Prosecution asserts that the substantial custodial term imposed in Leck Kim Koon makes it clear that a lengthy and deterrent sentence should be imposed on offenders who cheat financial institutions, even when no actual loss is caused. It was submitted that the present case is like Leck Kim Koon as both cases involve fraud on financial institutions where little harm was caused, save for the fact that the accused does not suffer from any terminal illness. It was further submitted that as the amount involved in the present case is relatively lower ($653,500 as compared to $878,000 in Leck Kim Koon), the sentence of 42 months’ imprisonment in Leck Kim Koon should be calibrated downwards to 2 years 6 months to 3 years’ imprisonment per charge in the present case.

Plea in Mitigation

132    The Defence sought a sentence of not more than 24 months’ imprisonment in respect of each charge, and for the sentences to run concurrently.

Submissions on sentence

133    It was submitted in Toh Suat Leng Jennifer v Public Prosecutor [2022] 5 SLR 1075 (“Jennifer Toh”), Justice Vincent Hoong held at [43] that a single starting point approach is inappropriate for offences under section 468 of the Penal Code. Instead, the Court held at [60] that:

“While relevant sentencing precedents serve as good reference points to determine the appropriate sentence to impose, due regard must be had to the specific facts and circumstances of each case, especially the relevant offence-specific and offender-specific factors.”

134    In that case, the appellant, an insurance agent, pleaded guilty to three charges under s 468 of the Penal Code after forging three insurance policies to obtain more money from her client and a charge under s 420 of the Penal Code. For the first two charges under s 468, the appellant forged two AIA insurance contracts, each promising returns of $52,340 if the first complainant put in $50,000 up front. The first complainant agreed and delivered a total of $100,000 to the appellant, who eventually made restitution of $21,200 to the complainant. For the third charge s 468, the appellant forged a HSBC insurance policy and presented it to the second complainant who had just sold his house and wanted to invest the money he obtained from the sale. The complainant signed the forged document and gave $32,000 in cash to the appellant. No restitution was made in respect of the second complainant. The court below imposed a sentence of 18 months’ imprisonment for the first two s 468 charges and 16 months’ imprisonment for the third s 468 charge.

135    Having regard to the facts in that case, Hoong J held at [61] – [70] that the following sentencing factors were relevant:

(a)     The amount involved across all the charges including the TIC offences was $330,878.

(b)     By committing the offences as an insurance agent in the employ of prominent institutions, the appellant had seriously undermined the delivery and integrity of insurance services in Singapore.

(c)     The appellant abused the trust of the complainants as they were her clients at the material time. She took advantage of them by misusing the authority of the insurance companies she worked for on multiple occasions.

(d)     The offence entailed a high degree of premeditation. The appellant carefully planned and executed her scheme by forging insurance contracts using copies of existing contracts.

(e)     The appellant’s meticulous forging of the documents based on existing contracts made the offences difficult to detect as they would have resembled standard insurance contracts to the unsuspecting victims

(f)     The total period of offending was lengthy; it spanned a period of three years.

(g)     The Court did not accord significant mitigating weight to the partial restitution of $26,200 made to the complainants as they were insignificant when compared to the losses caused to them.

(h)     The Court accorded some mitigating weight to the appellant’s plea of guilt.

136    It was submitted that considering the factors above, Hoong J affirmed the sentences imposed and dismissed the appeal against sentence.

137    The Defence asserts the present case was far less egregious than Jennifer Toh. Whilst a larger amount of money is involved, and the accused was convicted after a trial, he did not commit these offences in any official capacity or position of trust. The accused forged the two invoices at or around the same time ie the offending did not persist for a lengthy period and unlike the entire contracts that were forged in Jennifer Toh, did not entail a high degree of premeditation. It was submitted that it was thus less difficult to detect than those forged contracts.

138    The Defence further orally asserts that Jennifer Toh involved a case where the undermining of the insurance industry is abundantly clear as the accused there was an insurance agent who abused her position of trust and cheated her clients. This was not the case in the present case as the accused has no relation to the insurance company. Even if the Court is of the view that some degree of undermining was done to the integrity of the insurance industry, it should be considered based on the facts and circumstances.

139    The Defence further asserts that whilst the total amount involved serves as a yardstick for the appropriate sentence, the sentence should not be premised solely on the amount involved (see Jennifer Toh at [62]). The relevant offence-specific and offender-specific factors must be considered. This principle is consistent with case precedents.

140    In Public Prosecutor v Tan Han Hua [2012] SGDC 480 (“Tan Han Hua”), the accused was similarly sentenced to 16 to 18 months’ imprisonment after pleading guilty to five proceeded charges under s 468 of the Penal Code despite the total amount involved, being $510,000, nearly doubling that in Jennifer Toh.

141    It was highlighted that although the amount involved in Tan Han Hua is closer to that in the present case, the facts are similarly more egregious. Unlike the present accused, in Tan Han Hua the offender abused his position of trust as an accountant of DBS Bank and forged cheques to cheat the bank on 13 occasions. He repeated the forgeries over a period of 5 months, during which the offences remained undetected, and whilst some restitution was made, the Court accorded little mitigating weight to this as the restitution was relatively low compared to the total amount involved. Finally, the accused had eight charges taken into consideration (TIC) for the purpose of sentencing.

142    It was submitted that considering the sentences of 18 months’ imprisonment imposed on the offenders in Jennifer Toh and Tan Han Hua despite their significantly more egregious facts, a sentence of not more than 24 months’ imprisonment was appropriate and sufficiently accounts for the accused’s conviction after a trial. It was further submitted that in those two cases, the amounts in each charge were made clear by the Prosecution and the Court considered the total amount including the TIC charges. The Defence asserts the present case was different in that it was unclear what the amounts in the respective charge should be. In the present case, the accused was not charged in respect of the other invoices and there was no finding of impropriety in respect of those invoices. The total amount for the two invoices is $253,852.60 and the other invoices were not the subject matter of any TIC charges such that the difference of about $400,000 could be accounted for.

143    It was highlighted that the Prosecution had acknowledged that the other invoices were sufficient on their own to cross the insurance policy payout limit. For this reason, the Defence asserts that the amount involved as a sentencing factor should be limited to the amounts claimed in respect of each of the invoices in the charges. Accordingly, the sentences should be calibrated downwards by two-thirds to account for this.

144    It was reiterated that the present offences neither involved an abuse of trust nor did it undermine the delivery and integrity of insurance services by virtue of the accused being in the employ of insurance institutions at the material time. There were no offences taken into consideration for the purpose of sentencing, and the two invoices forming the subject matter of the charges were made at or around the time ie the period of offending was not prolonged. Accordingly, it was submitted that the offences formed part of a single transaction and, thus, the sentences should be ordered to run concurrently.

Personal background

145    The accused is presently 55 years old. He was born in Cashmere, India, and came to Singapore in 2001 to work at a carpet shop as a sales manager. He met his wife in Singapore sometime in 2003 and the pair married in 2004. It was highlighted that prior to these offences, he had never committed any criminal offence in any jurisdiction.

146    According to the Defence, whilst they have no children, the accused works hard to provide for himself and his wife as the family’s sole breadwinner. He works as a captain of Opus Bar & Grill, a restaurant situated in Voco Orchard Singapore. He draws an hourly salary of $14 and works between six to ten hours for six days a week; his monthly salary varies between $2,000 to $3,300.

147    The Defence asserts that the proposed sentence was sufficiently deterrent as the accused would not only be incarcerated for a lengthy period, but his absence from the household would negatively impact his family’s finances and his unemployed wife.

Prosecution’s Reply

148    In response to the Defence’s submissions that the sentences should be calibrated downwards by two-thirds, the Prosecution asserts that the Defence was seeking to amend their position on the total harm to $253,000 instead of $653,000, without basis. It was highlighted that the Defence in their written mitigation had accepted that the harm is the full payout at $653,500. It was also an undisputed fact accepted by the Defence during the trial and they never sought to put a different case forward.

149    It was submitted that the Defence assertion’s that computing the harm in that manner would warrant a two-thirds reduction in the sentence was incorrect because the amount involved was not even two-thirds less than $653,500. Further such a simplistic calculation failed to take into account the aggravating factors involved which would remain the same regardless of the amount.

150    The Prosecution asserts that the Defence’s attempt to explain away some of the aggravating factors involved was without basis. The Prosecution maintained that the accused committed the acts with significant premeditation. Apart from the deception to Allied World, there was the deception of Kamran and the attempted deception of the police as well.

151    Further, it was highlighted even after numerous tranches and multiple handwriting experts, the Defence claimed that the accused’s offences were not difficult to detect. The Prosecution asserts that it was difficult to see how this submission could stand.

152    Lastly, the Prosecution submitted that the Defence’s position that the accused did not undermine the financial services of insurance companies by virtue of being their employee misses the mark. What was relevant is the fact that the accused undermined the delivery of financial services, employee or not. This was an aggravating factor that is set out in case law: see Law Aik Meng, Tan Thiam Wee and even Leck Kim Koon which was endorsed by the Court of Appeal where the accused persons were similarly not employees of the insurance industry. The Prosecution asserts that the Defence had not provided any basis to state that an insurance agent’s offence would affect the integrity of the financial system more than a claimant’s offence and there was no basis to say so.

Sentencing considerations

General deterrence

153    The offence of forgery for the purpose of cheating under s 468 of the Penal Code carries a mandatory custodial sentence of up to 10 years. The substantial length of the maximum sentence is a clear indication of the seriousness of such offences and of Parliament’s intention that such offences should attract heavier sentences as a form of deterrence. Hence, general deterrence is the primary sentencing consideration in the present case.

154    Further as the present offences involves fraud committed on a financial institution offering insurance services, it clearly fell within the scope of offences that affect the delivery of financial services envisioned in Law Aik Meng, a deterrent sentence was therefore justified.

155    In my determination of the appropriate sentence to be imposed, I was guided by Hoong J in Jennifer Toh who held at [60] that due regard must be had to the specific facts and circumstances of each case, especially the relevant offence-specific and offender-specific factors. In that case, Hoong J had set out at [62] to [70] some of the relevant sentencing factors for an offence under s 468 which were applicable in the present case namely:

(a)     the amount involved;

(b)     the fact that the offences undermined the delivery and integrity of insurance services in Singapore;

(c)     the abuse of trust vis-à-vis the victims;

(d)     the premeditated nature of the offences;

(e)     the difficulty of detecting the offences.

The amounts involved are substantial

156    Acting on the invoices including the two Oriental Carpets invoices submitted by Kamran to its loss adjusters, Allied World made an insurance payout of $653,500 to Royal Kashmir based on the policy limit. It was undisputed that it was a condition of the policy[note: 90] that if the claim was fraudulent ie any invoice submitted by the accused was forged, Allied World would not have made any insurance payout.

157    Hence, I agreed with the Prosecution, the amount of harm caused by the accused’s offences can be said to be $653,500. It was immaterial that had the accused simply omitted to submit the questioned invoices, Allied World’s payout would have been the same, as the remaining invoices were sufficient to cross the insurance policy’s payout limit. The fact remains that Allied World made a payout of $653,500 based on the totality of the 26 invoices submitted in support of his insurance claim for S$1,004,730.39. Hence, I disagreed with the Defence assertion’s that should be a two-thirds reduction in the sentence as the harm involved was limited to the sum of the two Oriental Carpets invoices.

Offences highly planned and pre-meditated

158    I also agreed with the Prosecution that the offences were highly planned and pre-meditated, as it involved deceiving Kamran that he needed Oriental Carpets’ invoice book to re-issue genuine invoices to support his insurance claim. I further agreed with the Prosecution that Kamran attempted to frustrate investigations by providing the blue copies of the invoices to Kamran and telling him not to give them to the police.

159    Apart from the deception to Allied World through the loss adjusters, there was the deception of Kamran and the attempted deception of the police as well. Hence, I disagreed with the Defence assertion that Kamran’s acts were not highly pre-meditated. Such a premeditated nature of the offences attracted specific deterrence and justifies a heightened sentence: see Law Aik Meng at [22] and Fernando Payagala at [39].

Abuse of trust vis-à-vis the victim

160    It was undisputed that Kamran regarded the accused as a very good friend, and they had known each other about 10 to 15 years prior to starting the business. Furthermore, the accused had been buying carpets from Oriental Carpets through Kamran since prior to 2013. The accused had clearly abused the trust Kamran had in him when he obtained the empty invoice book from the former and fraudulently created two forged invoices by writing false material particulars and signing on two empty Oriental Carpets invoices.

161    Hence, I disagreed with the Defence’s submissions that the present offences neither involved an abuse of trust nor did it undermine the delivery and integrity of insurance services by virtue of the accused being in the employ of insurance institutions at the material time. I agreed with the Prosecution that it was immaterial that in any official capacity or position of trust. What was relevant is the fact that the accused undermined the delivery of financial services, employee or not.

Offences committed for profit

162    In the present case, the accused had sought to unlawfully benefit from the rainwater damage to his stock at 40 Arab Street in the course of his insurance claim. I agreed with the Prosecution that it was clear that the offences were committed for profit. As highlighted by the Prosecution, persons who act out of pure self-interest and greed will rarely be treated with much sympathy: see Zhao Zhipeng v Public Prosecutor [2008] 4 SLR(R) 879 at [37].

Difficulty in detection

163    I agreed with the Prosecution that the offences were difficult to detect as the present case involved the calling of 17 witnesses to establish the chain of events as well as two handwriting experts with differing opinions on whether the accused had authored the two forged invoice.

164    I noted even the loss adjusters who were tasked to investigate the claim were deceived as it was difficult to verify the large number of items as well as the individual carpet retailers’ invoices that came from multiple sources including those from overseas. It appeared that all these invoices submitted by the accused were accepted at face value as the loss adjusters had rejected items of claim without any supporting invoices.

Lack of remorse

165    I also agreed with the Prosecution that the accused had shown no remorse. The accused showed no hesitation in lying repeatedly, providing four materially different versions of events concerning the delivery of both the carpets and the invoices. Although the accused did not dispute the voluntariness of his statements, he made allegations against the police after the inconsistencies between his police statements and his testimony were pointed out.

166    In my calibration of the appropriate sentence, I was guided by the sentences imposed in Leck Kim Koon and Jennifer Toh based on the substantial amounts involved. In my view, the appropriate sentence should fall between the sentence imposed in these two cases. I agreed with the Prosecution that the sentence of 42 months’ imprisonment in Leck Kim Koon should be calibrated downwards to 30 months imprisonment per charge in the present case. I further agreed that that the charges should not be distinguished by the amount in each invoice, as either invoice being found to be fraudulent would have resulted in Royal Kashmir not being paid a single cent.

167    In my view the sentence of no more than 24 months for each charge proposed by the Defence was inadequate having regard to the aggravating offence-specific factors including the substantial amount involved in this case. Furthermore, as accused had claimed trial to these charges, he would not have been entitled to the sentencing discount given to an offender who had pleaded guilty to these charges.

Global Sentence

168    In the present case as both invoices were submitted at the same time as part of the insurance claim, I agreed with the Defence that the offences formed part of a single transaction. Accordingly, I ordered the sentences for both charges to run concurrently. Hence, the global sentence imposed is 30 months’ imprisonment.

[note: 1]Exhibits P2 and P3.

[note: 2]Exhibit P32.

[note: 3]Exhibit P1.

[note: 4]Exhibit P38.

[note: 5]Exhibit P24.

[note: 6]Exhibit D16.

[note: 7]Exhibit P28.

[note: 8]NEs, Day 5, Page 4, Lines 13 – 14.

[note: 9]Exhibits P2 and P3.

[note: 10]NEs, Day 5, Page 8, Lines 4.

[note: 11]NEs, Day 5, Page 6, Lines 12 – 13.

[note: 12]Exhibit P4.

[note: 13]NEs, Day 5, Page 5, Lines 25 – 32 and Page 6 Line 1.

[note: 14]Exhibit P4.

[note: 15]Exhibit P34.

[note: 16]NEs, Day 5, Page 12, Lines 23 – 25.

[note: 17]NEs, Day 5, Page 14, Lines 10 – 12.

[note: 18]NEs, Day 5, Page 14, Lines 25 – 27.

[note: 19]NEs, Day 5, Page 15, Lines 25 – 32 and Page 6 Lines 1 - 2.

[note: 20]NEs, Day 5, Page 23, Lines 3 – 5.

[note: 21]NEs, Day 7, Page 15, Lines 23 – 26.

[note: 22]NEs, Day 2, Page 55, Lines 28 – 32.

[note: 23]NEs, Day 2, Page 56, Lines 14 – 17.

[note: 24]NEs, Day 2, Page 57, Lines 13 – 17.

[note: 25]Exhibit P26.

[note: 26]NEs, Day 2, Page 64, Lines 32.

[note: 27]NEs, Day 2, Page 65, Lines 28 - 29.

[note: 28]NEs, Day 12, Page 15, Lines 23 – 32.

[note: 29]NEs, Day 12, Page 16, Lines 1 – 4.

[note: 30]Exhibit P41.

[note: 31]Exhibit P41, Answer 10.

[note: 32]Exhibit P41, Answer 15.

[note: 33]Exhibit P41, Answer 16.

[note: 34]Exhibit P42, Answer 6.

[note: 35]NEs, Day 13 Page 17 lines 8 – 18.

[note: 36]NEs, Day 13 Page 17 lines 27 – 32 and Page 18 lines 1 - 22.

[note: 37]NEs, Day 13 Page 18 lines 6 – 31.

[note: 38]NEs, Day 13 Page 19 lines 25 – 32 and Page 20 lines 1 - 4.

[note: 39]NEs, Day 5, Page 8, Lines 2 - 5 and Day 6, Page 12, Lines 9 - 21.

[note: 40]NEs, Day 6 Page 63 line 32 and Page 64 lines 1 – 6.

[note: 41]NEs, Day 6 Page 64 lines 8 – 9.

[note: 42]NEs, Day 26 Page 6 lines 31 – 32 and Page 7 lines 1 – 4.

[note: 43]Exhibits P2 and P3.

[note: 44]Exhibits P2A and P3A.

[note: 45]NEs, Day 5, Page 10, Lines 31 – 32 and Page 11 Line 1.

[note: 46]Exhibit P31 – 1 April 2016 email from the accused to Lee Lin Yong Mark.

[note: 47]NEs, Day 5, Page 8, Lines 9 – 13.

[note: 48]NEs, Day 5, Page 9, Lines 3 – 20.

[note: 49]NEs, Day 5, Page 10, Lines 20 – 28.

[note: 50]NEs, Day 5, Page 9, Lines 30 – 31.

[note: 51]Exhibit P1.

[note: 52]NEs, Day 6, Page 7, Lines 3 – 20.

[note: 53]Exhibit P2A and P3A.

[note: 54]NEs, Day 6 Page 7, Lines 23 – 24.

[note: 55]NEs, Day 6, Page 13, Lines 7 – 8.

[note: 56]Exhibit P24, Page 3 at paragraph 6.

[note: 57]NEs, Day 13, Page 28, Lines 9-14.

[note: 58]NEs, Day 6, Page 52, Lines 24 -32 and Page 53 Lines 1 - 6.

[note: 59]Exhibit P24.

[note: 60]NEs, Day 2, Page 40, Lines 12 – 13.

[note: 61]NEs, Day 2, Page 31, Lines 22 – 26.

[note: 62]NEs, Day 2, Page 31, Lines 26 – 32.

[note: 63]NEs, Day 2, Page 32, Lines 10 – 12.

[note: 64]NEs, Day 2, Page 32, Lines 13 – 17.

[note: 65]NEs, Day 2, Page 32, Lines 19 – 32 and Page 33 Lines 1 – 6.

[note: 66]NEs, Day 2, Page 33 Lines 8 – 12.

[note: 67]NEs, Day 2, Page 34 Lines 1 – 25.

[note: 68]NEs, Day 3, Page 6, Lines 5 – 18.

[note: 69]NEs, Day 3, Page 13, Lines 13 – 31.

[note: 70]NEs, Day 3, Page 53, Lines 6 – 10.

[note: 71]Exhibit D16 at paragraph 21.

[note: 72]Exhibit D16 at paragraph 11.

[note: 73]Exhibit D16 at paragraph 12.

[note: 74]Exhibit D16.

[note: 75]Exhibit 17.

[note: 76]Overview of Handwriting/Signature Comparison Method and Opinion Terminology – Defence Expert Bundle at page 524.

[note: 77]Exhibit D16 Page 5 at paragraph 18.

[note: 78]NEs, Day 18, Page 13, Lines 21 – 29.

[note: 79]NEs, Day 18, Page 14, Lines 11 – 26.

[note: 80]NEs, Day 18, Page 14, Line 31 to Page 15, Lines 1 – 6.

[note: 81]NEs, Day 18, Page 15, Lines 10 – 18.

[note: 82]NEs, Day 22, Page 56, Line 4 to Page 60 Line 7.

[note: 83]NEs, Day 18, Page 45, Lines 5 - 10.

[note: 84]NEs, Day 18, Page 51, Lines 1 - 24.

[note: 85]NEs, Day 22, Page 68, Lines 1 - 25.

[note: 86]NEs, Day 22, Page 66, Lines 1 - 15.

[note: 87]Exhibit P23 at Page 2 and Exhibit D16 at Page 89.

[note: 88]NEs, Day 22, Page 9, Lines 7 - 12.

[note: 89]NEs, Day 22, Page 60, Lines 4 – 13 and Exhibits D18 to D22.

[note: 90]Clause 7 of the Policy Conditions Applicable To All Sections listed at Section 9 of the Allied World insurance policy.

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Public Prosecutor v Yip Kong Fai Clement
[2024] SGDC 284

Case Number:District Arrest Case No 905473 of 2024 & 6 Others
Decision Date:29 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Benedict Teong (Attorney-General's Chambers) for the Public Prosecutor; Daryl Lim (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Yip Kong Fai Clement

Criminal Law – Offences – Property Offences – Cheating

Criminal Law – Statutory Offences – Computer Misuse Act – Unauthorised access to computer material

Criminal Law – Abetment

Criminal Procedure and Sentencing – Sentencing – Principles

29 October 2024

District Judge Paul Quan:

Introduction

1       This is a case involving scams-related offences, specifically the opening of bank accounts and relinquishing control over bank accounts, resulting in the subsequent use of such accounts to perpetrate scams. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Mr Yip Kong Fai Clement (“Mr Yip”), a 29-year-old Singaporean, came to know of someone who went by the moniker, “Michael” on Telegram. Enticed by Michael’s offer to pay S$1,000 for each bank account that Mr Yip was able to provide for him to use, Mr Yip:

(a)     relinquished control over his existing bank account with DBS Bank Limited (“DBS”) to Michael;

(b)     opened two new bank accounts with United Overseas Bank Limited (“UOB”) and Standard Chartered Bank (“SCB”), and relinquished control over these accounts to Michael on Michael’s directions; and

(c)     opened another new bank account with DBS and disclosed its internet banking credentials to Michael.

This was despite the fact that Mr Yip suspected that Michael had wanted the accounts to perpetuate scams.

3       Unrelated to the scams-related offences committed in August 2023, Mr Yip also stole cash amounting to S$60 from Pet Lovers Centre on two separate occasions in January 2024.

Charges and prescribed punishment

4       Mr Yip has pleaded guilty to a single charge of cheating UOB under section 417 of the Penal Code 1871 (2020 Rev Ed) (“PC”) into opening a bank account in his name, by dishonestly inducing UOB to believe that he was to be the sole operator of this account when he knew this to be false because he had opened the bank account on Michael’s directions solely for the purpose of relinquishing control over it subsequently to Michael for profit.

5       Mr Yip has also consented to have six other charges taken into consideration for the purpose of sentence (“TIC”):

(a)     two of abetting by aiding the offence of authorised access to computer material under section 3 of the Computer Misuse Act 1993 (2020 Rev Ed) (“CMA”) for relinquishing control over the UOB account and his existing DBS account to Michael;

(b)     two similar charges under section 417 of the PC and section 3 of the CMA in relation to cheating SCB into opening a bank account in his name and relinquishing control over it to Michael on Michael’s directions;

(c)     one similar charge under section 417 of the PC for cheating DBS into opening another bank account in his name; and

(d)     an unrelated and amalgamated charge of theft-in-dwelling under section 380 of the PC.

6       On the cheating charge that is proceeded against him, Mr Yip must be imprisoned for up to three years and/or fined.

Parties’ positions

7       Mr Yip is a first offender. The prosecution has sought to impose a global sentence of ten to 13 months’ imprisonment on Mr Yip based on:

(a)     an extrapolation from the Sentencing Advisory Panel guidelines on scams-related offences (“SAP Guidelines”),[note: 1] specifically:

(i)       a starting sentence of four months’ imprisonment,

(ii)       an upward calibration of the starting sentence to ten to 13 months’ imprisonment to account for:

(A)       Mr Yip’s motivation to commit the offence because of personal gain,

(B)       the opening of a new account,

(C)       a significant sum of S$248,000 that coursed through the account;

(b)     a significant uplift for the TIC charges of about 7¾ to nine months’ imprisonment, given that a sentence of 13½ to 19 months’ imprisonment would have been passed if the prosecution were to proceed with the charges in relation to the new SCB account and existing DBS account; and

(c)     a full 30% reduction in sentence for Mr Yip’s guilty plea.

8       On the other hand, the defence has submitted a term of seven months’ imprisonment for Mr Yip instead on the grounds that:

(a)     care, caution and circumspection should be exercised in adapting the SAP Guidelines to offences not originally covered by it; as such, the sentence for the present case not contemplated by the guidelines, should not be extrapolated from the SAP Guidelines and in any event –

(i)       the deceitful opening of a new bank account is not an offence-specific sentencing factor; and

(ii)       the individual calibrations of the uplifts for motivation by gain and opening a new account for the proceeded with charge is excessive given the illustration in [20(b)] of the SAP Guidelines;

(b)     the uplifts for the TIC charges are excessive because:

(i)       the opening of new bank account should not be construed an offence-specific aggravating factor;

(ii)       the aggravating factor of motivation by personal gain is double or triple-counted for each bank account opened and relinquished; and

(iii)       the full 30% reduction in sentence has not been taken into account; and

(c)     the facts of the present case are more aggravating than that in PP v Muhammad Ryan Rosmani [2024] SGDC 239, which warrant an uplift of three months’ imprisonment to the four-month imprisonment sentence in Ryan Rosmani –

(i)       a significant sum of $149,260 in scam proceeds transacted through Mr Yip’s account as compared to S$72,600 in Ryan Rosmani;

(ii)       four accounts were handed over, of which three were newly opened for that purpose as compared to two bank accounts being opened and handed over in Ryan Rosmani; and

(iii)       a vulnerable witness who suffered actual loss of S$99,999.21 was affected.

Court’s decision

9       I sentence Mr Yip to eight months’ two weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

10     There are three issues I have to decide in this case.

Operative sentencing principles; application of SAP Guidelines and sentencing approach; relevant offence-specific and offender-specific factors

11     They are:

(a)     the sentencing principles operating in this case;

(b)     whether the SAP Guidelines should apply in this case and if so, the extent to which its sentencing approach should be adopted; and

(c)     whether and if so the relevant offence-specific and offender-specific factors enumerated in the SAP Guidelines that should apply in this case.

12     I resolve the issues in this way:

(a)     deterrence is the operative sentencing principle in this case, given the current context of the prevalence of scams, the proliferation of money mules and our resolute aim to effectively cut off the easy supply of new and existing bank accounts;

(b)     the SAP Guidelines can apply in the present case by adopting a modified approach that entails scaling down linearly the starting sentence and recommended uplifts; and

(c)     the offence-specific factors and offender-specific factors enumerated in the SAP Guidelines apply, including the opening of new bank accounts as an offence-specific aggravating factor.

Analysis of issues

13     I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing principle

14     In a series of cases (see PP v Muhamad Noor Tijany Bin Mohamed Arridin, unreported, Magistrate Arrest Case 902261 of 2024 at [5]; PP v Tan Jun Liang, unreported, Magistrate Arrest Case 900440 of 2024 at [4]; and PP v Ilyak Ilyasa bin Sulaiman, unreported, District Arrest Case 908225 of 2024 at [5]), I echoed why general deterrence is the dominant sentencing principle for scam-related offences and that we do not lose sight of why punishment for them is necessarily severe:

(a)     first, the prevalence of scams. Over the past five years, the number of reported scam cases increased by more than seven-fold, while the amount lost to scams have quadrupled: SAP Guidelines at [5];

(b)     second, proliferation of money mules. There is a pressing need to deter like-minded offenders from equipping scam syndicates with an effective layering tactic in the form of an intricate network or web of bank accounts to perpetrate scams whose proceeds are untraceable and unrecoverable: PP v Goh Hai Shan [2024] SGDC 178 at [9]. To evade detection and maintain anonymity, scammers acquire bank accounts by offering to “buy” or “rent” them from others in return for payment or other gains. Therefore persons who cede control of their bank accounts play an important role in facilitating the receipt and laundering of crime proceeds by scammers: PP v Muhamad Farhan Bin Umar (“Farhan”) [2024] SGMC 67 at [4]. The opportunity cost of crime in the form of deterrent sentencing must be sufficiently high so that would-be offenders think twice about becoming money mules for easy money: Farhan at [35]; and

(c)     third, the resolute aim to effectively cut off the easy supply of new and existing bank accounts. Once compromised bank accounts are frozen by the authorities, scammers will need new bank accounts to receive funds from other victims. Not having a steady stream of new bank accounts to replace the frozen ones disrupts the crucial layered network built on the back of these disposable accounts though which proceeds of scams are typically laundered, thereby crippling syndicate activity: SAP Guidelines at [6]; Farhan at [35].

Issue 2: Application of SAP Guidelines

15     The SCP Guidelines recommend a sentencing approach for scams-related offences, including under sections 55A(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (2020 Rev Ed) (“CDSA”) and section 8A of the CMA.

Section 8A CMA and section 8 CMA

16     In respect of offences involving the unauthorised disclosure of Singpass credentials framed under section 8 of the CMA, the court in Farhan found the SAP Guidelines to be relevant and applicable because the criminal act involved, the mischief targeted and the prescribed punishment are the same as that for offences under the new section 8A of the CMA to which the SAP Guidelines apply: Farhan at [19]. I took the same view in Nur Alif at [22] and earlier in Cheah Bernice at [16].

Section 55A CDSA and section 3(1) CMA

17     By extension, although the SAP Guidelines are meant to apply to scams-related offences under section 55A of the CDSA, I have taken the view that the guidelines can apply equally to scams-related offences framed under section 3(1) of the CMA because both types of offences target the same mischief of handing over control of bank accounts: PP v Muhammad Nur Alif Bin Muhammed Yatim, unreported, District Arrest Case No 906976 of 2024 (“Nur Alif”) at [15(a)]. However, given the difference in the maximum punishments prescribed by both offences – two years under section 3(1)(a) of the CMA as compared to three years under section 55A(5) of the CDSA – the recommended starting sentence and uplifts ought to be scaled down linearly by one-and-a-half times when applied to scams-related offences under section 3(1) of the CMA: Nur Alif at [15(b)]. I have adopted this modified approach in Tan Jun Liang at [6] and Ilyak Ilyasa at [6].

Section 55A CDSA and section 417 of the PC

18     The prosecution has submitted that this modified approach should also apply to the present scams-related offence framed under section 417 of the PC as the substance of the offence is the same, notwithstanding that the maximum imprisonment term of three years prescribed by section 417 of the PC is higher than the two years prescribed by section 3(1)(a) of the CMA, and the same as that prescribed by section 55A(5) of the CDSA. I agree with the prosecution, considering the convergence of the gravamen of the scams-related offences under:

(a)     section 55A CDSA, which is entering into, or being otherwise concerned in, an arrangement by handing over control of bank accounts: SAP Guidelines at [8(a)];

(b)     section 417 PC, which is cheating banks into opening new accounts on the pretext of operating them for legitimate personal banking needs, when they are in fact opened for the sole purpose of handing over control of them; and

(c)     section 3 CMA, which is the unauthorised access of bank accounts after control over them have been handed over.

19     At the very least, I ought to consider the offence-specific and offender-specific factors distilled by the guidelines that will inform the harm caused and the culpability of an offender engendered by a section 417 PC offence, where an offender has deceitfully procured and thereafter relinquished a bank account that is used to launder scam proceeds: PP v Muhammad Ryan Rosmani [2024] SGDC 239 at [6].

Modified approach

20     The SAP Guidelines can apply in the present case by adopting a modified approach that entails scaling down linearly the starting sentence and recommended uplifts.

(1)   Starting sentence scaled down linearly from six months’ to four months’ imprisonment

21     In this case, the mischief underlying the cheating charge is Mr Yip deceiving UOB into opening a bank account for him when he knows at the outset that he will not be operating the account for his own legitimate personal banking needs, but handing over control of it to Michael instead on his directions, without taking reasonable steps to ascertain Michael’s purpose of accessing, operating or controlling the accounts. Indeed, Mr Yip had suspected that Michael wanted his bank accounts to perpetrate scams. On this basis and extrapolating from the guidelines, the starting sentence for a typical section 55A CDSA scams-related offence that targets the same mischief can be scaled down linearly from six to four months’ imprisonment to apply to the present scams-related offence framed under section 417 PC offences: SAP Guidelines at [11(a)].

22     In finding at [27] that the SAP Guidelines are highly relevant because the criminal acts described at [8(a)] of the guidelines are the same as those committed by the accused in relinquishing her accounts by opening and handing over three bank accounts, the court in PP v Siti Maryam Binte Mohamed Zubir [2024] SGDC 260 adopted the same starting sentence of four months’ imprisonment for the charge under section 417 of the PC proceeded with against the accused in that case.

(2)   Adjustments to the starting sentence

23     The starting sentence will be adjusted upwards for offence-specific aggravating factors such as where:

(a)     the offender opened a new bank account to be handed over as opposed to merely handing over control of an existing account: SAP Guidelines at [13(a)];

(b)     the offender handed over more than one bank account: SAP Guidelines at [13(b)];

(c)     the offender was motivated to commit the offence for personal gain, even if he did not receive the gain: SAP Guidelines at [13(d)]; and

(d)     significant funds of S$100,000 or more had been received or transferred out of the bank account: SAP Guidelines at [13(f)].

24     As for offender-specific factors, there will also be an upward adjustment for the presence and number of TIC offences: SAP Guidelines at [15(a)], and reduction in sentence for guilty pleas: SAP Guidelines at [17].

Issue 3(a): Relevant offence-specific factors

25     I consider the relevant offence-specific factors in turn.

Deceitful opening of new bank account as offence-specific aggravating factor

26     Relying on Muhammad Ryan Rosmani at [17], the defence has submitted that the deceitful opening of a new account should not be considered as an offence-specific aggravating factor because that is inherent in the cheating offence, forming the basis and ingredients of the offence, and it is also only aggravating in the context of the CDSA offences that criminalise the relinquishing of bank accounts. With respect, I hold a different view for three reasons:

(a)     first, the nature and context of this type of cheating offence is aggravating per se because it goes towards the perpetration of scams;

(b)     second, and related to the first reason, the deception involved in procuring a new bank account by an offender on the pretext of operating it for his own legitimate banking needs is all the more egregious when the sole purpose of doing so is to cede control of the account later; and

(c)     third, for the purposes of extrapolating from the SAP Guidelines, it is artificial, if not inaccurate, to divorce the opening of the bank account from handing over the bank account:

(i)       the guidelines presupposes the existence of an account to hand over; and where there is none and a new account is opened, an uplift is recommended: SAP Guidelines at [13(a)],

(ii)       the archetypal case is where an offender hands over control of an existing bank account to another person and is contrasted with a scenario where the offender opened a new bank account for the purpose of handing over the account to the other person: SAP Guidelines at [10(a)], and

(iii)       if an uplift were not applied in the present case, its factual matrix would not be comparable to that envisaged under the SAP Guidelines for any meaningful extrapolation to be made.

27     Likewise, the court in Siti Maryam also considered at [38] and [39] the opening of a new bank account to be handed over as an offence-specific aggravating factor and applied an uplift for this factor.

Upward adjustment of two months’ imprisonment for opening of new bank account and motivation by personal gain

28     Despite suspecting that Michael had wanted to use his accounts to perpetuate scams, Mr Yip nevertheless provided Michael (and others working with him) with the bank accounts for personal gain in exchange for the promise of S$1,000 for each bank account that Mr Yip could provide for Michael to use. This is coupled with the fact that Mr Yip had opened a new UOB bank account under Michael’s directions solely for the purpose of handing it over to Michael. Illustration [20(b)] of the SAP Guidelines recommends an upward adjustment of three months’ imprisonment for these two factors. I apply an upward adjustment of two months’ imprisonment, which I extrapolate and scale down linearly from the three months’ imprisonment, to the starting sentence, for these two factors.

Upward adjustment of three months’ imprisonment for significant funds received

29     An uplift of at least 25% of the starting sentence should be considered where significant funds of S$100,000 or more had been received or transferred out of the offender’s bank account: SAP Guidelines at [13(f)]. In this case:

(a)     the proceeded with charge involves a sizeable sum of S$248,600 received, of which S$149,260 were scam proceeds linked to two victims, and

(b)     the TIC charges involve about another S$150,000, of which S$129,830.01 were scam proceeds linked to three victims.

In assessing this factor, the court may consider the full amount received or transferred out of the bank’s account, and not just the amounts traceable to reports about scams: SAP Guidelines at footnote 8. As Mr Yip did not use the bank accounts himself after opening and handing them over to Michael and that he has no claim to the balance sums remaining in the accounts after the accounts were frozen during police investigations, Mr Yip will not be able to satisfy the court that any of the receipts or transfers were made for innocent reasons: SAP Guidelines at footnote 8.

30     The funds received in respect of the proceeded with charge were more than double the threshold of S$100,000 contemplated by the SAP Guidelines, and almost quadruple if the sums received in respect of the TIC charges are included. I therefore apply an uplift of 75% of the starting sentence, or three months’ imprisonment, to the starting sentence for this factor. In so doing, I adopt the court’s approach in Siti Maryam at [52] in applying an uplift for significant funds flowing through all five bank accounts in that case.

Upward adjustment of two months’ imprisonment for handing over three other bank accounts

31     The number of bank accounts handed over should be considered in determining the extent of the sentencing uplift: SAP Guidelines at [13(b)]. The defence does not dispute this as an aggravating fact: see [8(c)(ii)], above. Strictly speaking in this case, apart from the UOB account in respect of the proceeded with charge that was handed over, three other accounts, one from SCB and two from DBS (one existing and one new), were handed over. As the new DBS account was not used, I adopt the court’s approach in Siti Maryam at [44] and apply an upward adjustment of only two months’ imprisonment to the starting sentence for this factor.

Upward adjustment of one month’s imprisonment because of involvement of vulnerable victim

32     If vulnerable persons of above the age of 65 are affected by the scams even if such persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected, an uplift of at least 25% of the starting sentence is recommended: SAP Guidelines at [14]. In this case, the TIC charges relating to the SCB account affected a 74-year-old vulnerable victim to the tune of S$99,981.01. The defence also does not dispute this as an aggravating fact: see [8(c)(iii)], above. For this factor, I apply an upward adjustment of one month’s imprisonment to the starting sentence. I do not see why an adjustment cannot be done even though the vulnerable victim’s involvement is with the SCB account that pertains to the TIC charges.

Issue 3(b): Offender-specific factors

33     There are no offender-specific personal aggravating factors to warrant a further upward adjustment to the starting sentence. As for offender-specific personal mitigating factors, Mr Yip is not regarded as a first offender even though he has no prior convictions and his guilty plea carries mitigatory weight.

TIC charges

34     As all scams-related TIC charges have been factored into the overall aggravating nature of the cheating offence, their aggravating presence is not double-counted as offender-specific factors. This was also the approach adopted by the court in Siti Maryam at [58].

35     As for the TIC charge of theft-in-dwelling, a slight upward adjustment of one week’s imprisonment is warranted, given:

(a)     its similar property-related nature. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38];

(b)     its commission was after the slew of scams-related offences had already been committed; and

(c)     two separate incidents were amalgamated as a course of conduct in a single charge. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

36     I respectfully decline to follow the prosecution’s approach of applying an uplift for the TIC charges: see [7(b)], above. A similar approach was suggested in Siti Maryam at [45] and I align my views with the court at [46] on the danger and implications of doing so. The defence has also argued against this approach in a similar vein: see [8(b)(ii)], above.

Absence of criminal antecedents

37     Although Mr Yip has no prior convictions, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Full 30% reduction in sentence for guilty plea

38     Mr Yip’s indication of early guilty plea carries mitigatory weight and I accord him the full 30% reduction in sentence.

Sentences for remaining charges had they not been TIC

39     For completeness, I set out, by way of comparison, the total upward adjustment attributable to the aggravating facts of the TIC charges (and the TIC charge of theft-in-dwelling itself) against the individual sentences had any of the TIC charges been proceeded with.

40     Had any of the TIC charges been proceeded with, the indicative sentences imposed on them would have been between about five months’ one to two weeks’ imprisonment to seven months’ imprisonment:

(a)     Seven months’ imprisonment for opening and handing over the SCB account, comprising:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account,

(iv)       an upward adjustment of one month’s imprisonment for significant funds of nearly S$100,000 received,

(v)       an upward adjustment of one month’s imprisonment for the involvement of a vulnerable victim, and

(vi)       a full 30% reduction of sentence for guilty plea;

(b)     Five months’ two weeks’ imprisonment for handing over a new DBS account comprising:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account, and

(iv)       a full 30% reduction of sentence for guilty plea; and

(c)     Five months’ one week’s imprisonment for relinquishing an existing DBS account:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of one month’s imprisonment for motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account,

(iv)       an upward adjustment of two weeks’ imprisonment for funds of S$50,000 received, and

(v)       a full 30% reduction of sentence for guilty plea.

41     In this case, the total upward adjustment that is attributable to the TIC charges is about four months’ one week’s imprisonment, comprising:

(a)     about one month’s imprisonment for the funds received in the SCB and DBS accounts;

(b)     two months’ for handing over three other bank accounts;

(c)     one month’s imprisonment for the involvement of a vulnerable victim linked to the SCB account; and

(d)     one week’s imprisonment for the theft-in-dwelling.

Conclusion

Sentence of eight months’ two weeks’ imprisonment imposed

42     To summarise, I impose a sentence of eight months’ two weeks’ imprisonment on Mr Yip comprising:

(a)     four months’ imprisonment as the starting sentence;

(b)     an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain;

(c)     an upward adjustment of three month’s imprisonment for significant funds of nearly S$400,000 received in respect of all the charges;

(d)     an upward adjustment of two months’ imprisonment for handing over three other bank accounts;

(e)     an upward adjustment of one month’s imprisonment for the involvement of a vulnerable victim in respect of the TIC charges relating to the SCB account;

(f)     an upward adjustment of one week’s imprisonment for the TIC charge of theft-in-dwelling; and

(g)     a full 30% reduction of sentence for guilty plea.

[note: 1]Sentencing Advisory Panel, “Guidelines for Scams-Related Offences” <https://www.sentencingpanel.gov.sg/files/Guidelines/Guidelines_For_Scams_Related_Offences.pdf> (21 August 2024).

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Public Prosecutor v Loh Sheung Jin Julian
[2024] SGMC 74

Case Number:Magistrate Arrest Case No 901279 of 2023 & 12 Others
Decision Date:25 October 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Teo Pei Rong Grace (Attorney-General's Chambers) for the Public Prosecutor; Azri Imran Tan (I R B Law LLP) for the Accused.
Parties: Public Prosecutor — Loh Sheung Jin Julian

Criminal Law – Offences – Hurt – Voluntarily causing hurt

Criminal Law – Offences – Public decency and morals – Obscene act in public

Criminal Law – Offences – Sexual offences – Outrage of modesty

Criminal Law – Attempt

Criminal Law – Offences – Criminal force and assault – Use of criminal force

Criminal Law – Offences – Public tranquillity – Public nuisance

Criminal Law – Offences – Sexual offences – Gesture intended to insult modesty

Criminal Law – Statutory Offences – COVID-19 (Temporary Measures) Act 2020 – Contravention of control order

Criminal Procedure and Sentencing – Sentencing – Mentally disordered offenders

Criminal Procedure and Sentencing – Sentencing – Principles

25 October 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       This is a case of a mentally disordered offender who has committed a slew of offences. While there is a contributory link between his mental conditions and the commission of the offences that are of a sexual nature, there is no such link in relation to the commission of the other offences. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Loh Sheung Jin Julian (“Mr Loh”), a 58-year-old Singaporean, who suffers from mild intellectual disability and “Other Specified Personality Disorder” as defined by the fifth edition of the Diagnostic and Statistics Manual of Mental Disorders (“DSM-5”), committed a slew of 13 offences over the course of nearly five years between 2019 and 2024 with:

(a)     the majority of the offences being sexual in nature. There are eight such offences involving five counts of outrage of modesty (“OM”), two counts of public obscenity and one count of insult of modesty, and

(b)     the remaining five offences being non-sexual in nature, involving two counts of voluntarily causing hurt (“VCH”), one count of using criminal force, one count of pubic nuisance and another count of contravening a COVID-19 control order.

Charges and prescribed punishments

3       Mr Loh, who is certified to be not of unsound mind and fit to plead, has pleaded guilty to seven charges:

(a)     three of OM (including one attempted OM) under section 354(1) of the Penal Code 1871 (2020 Rev Ed) (“PC 1871”) against –

(i)       a 16-year-old victim (“V1”) by pinching his left chest area over his shirt on a bus,

(ii)       a 16-year-old victim (“V2”) by attempting to touch his penis over his clothes at a bus stop, and

(iii)       a 15-year-old victim (“V3”) by touching his penis over his pants along a pavement;

(b)     two of doing an obscene act in public (“public obscenity”) under section 294(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC 2008”) by ‘flashing’ himself at a 17-year-old victim (“V4”) on the bus, and under section 294(a) of the PC 1871 by masturbating in public caught in plain slight by a 49-year-old victim (“V5”); and

(c)     two of VCH under section 323 of the PC 2008 against a foreign domestic worker (“V6”) while at home and against a fellow commuter (V7”) on the bus.

4       He has also consented to have the remaining six charges taken into consideration for the purpose of sentence (“TIC”):

(a)     two of OM under section 354(1) of the PC 2008 against –

(i)       V1 by touching his buttocks over his clothes as he alighted from the bus, and

(ii)       another victim by touching his genitals over his pants;

(b)     one of making a gesture intended to insult under section 377BA of PC 1871;

(c)     one of using criminal force under section 352 of the PC 2008 against V6;

(d)     one of being a public nuisance under section 268 of the PC 2008 by shouting repeatedly on a bus;

(e)     one of contravening a COVID control order under section 34(7) of the COVID-19 (Temporary Measures) Act 2020 (Act No 14 of 2020) by failing to wear a mask when not in his ordinary place of residence.

5       The charges/offences relating to the commission of OM and public obscenity at [3(a)], [3(b)], [4(a)] and [4(b)], above, will be referred to as sexual charges/offences in this judgment.

6       The prescribed punishment for OM (and attempted OM) under section 354 of the PC 1871 is imprisonment for up to three years, a fine, caning or any combination of such punishments. Although Mr Loh is not eligible to be caned, an imprisonment term not exceeding 12 months in lieu of the caning can be imposed on him as additional punishment: section 325(2) of the Criminal Procedure Code 2010 (2020 Rev Ed). For public obscenity, Mr Loh must be imprisoned for up to three months, and/or fined under section 294(a) of the PC 1871/ PC 2008. For VCH, Mr Loh must be imprisoned for up to three years and/or fined for up to S$5,000 under section 323 of the PC 2008.

Parties’ positions

7       Mr Loh is a first offender. The parties agree that the custodial threshold has been crossed in this case. The parties’ positions are not far apart. The prosecution has sought to impose a global sentence of between seven months’ eight to nine weeks’ imprisonment to ten months’ eight to nine weeks’ imprisonment; whereas the defence has submitted for a term of not more than six months’ and 12 weeks’ imprisonment. The difference is attributed to the weight to be accorded to Mr Loh’s mental conditions, which the defence has submitted are mitigating to the extent that they diminish his culpability in the offences, as well as affect his ability to manage his impulses and impair his capacity for self-control and restraint.

8       There is common ground between the parties:

(a)     that Mr Loh suffers from mild intellectual disability and “Other Specified Personality Disorder with mixed personality features as defined by DSM-5;

(b)     that there is a contributory link between these mental conditions and the commission of the sexual offences, but no such causal or contributory link in respect of the commission of the other offences;

(c)     that deterrence is the primary sentencing consideration, given that Mr Loh is aware of his mental conditions, he has committed multiple offences spanning across more than four years (with the prosecution making the additional point that numerous teenage victims were involved) and poses recidivism risks (with the prosecution making the additional point that he poses a consequent threat to the public, particularly males from post-puberal adolescents to adults, because of his moderate to high risk of reoffending), as well as the inefficacy of the treatment of his mental conditions thus far;

(d)     generally in the sentences to be imposed on the seven charges that Mr Loh has pleaded guilty to:

Charge

Prosecution

Defence

MAC 901279 of 2023

OM against V1

At least 5-6 weeks’ imprisonment

(consecutive)

5 weeks’ imprisonment

(consecutive)

MAC 906537 of 2023

Attempted OM against V2

At least 2½ months’ imprisonment

2½ months’ imprisonment

MAC 906539 of 2023

OM against V3

6-9 months’ imprisonment

(consecutive)

5-6 months’ imprisonment

(consecutive)

MAC 906529 of 2023

‘Flashing’ at V4

At least 1 month’s imprisonment

(consecutive)

2-4 weeks’ imprisonment

(consecutive)

MAC 904357 of 2024

Masturbating in public in plain sight of V5

At least 2 weeks’ imprisonment

1 week’s imprisonment

MAC 906532 of 2023

VCH against V6

At least 3 weeks’ imprisonment

(consecutive)

3 weeks’ imprisonment

(consecutive)

MAC 906535 of 2023

VCH against V7

At least 1 week’s imprisonment

1 weeks’ imprisonment



with the sentences on the four charges in respect of V1, V3, V4, and V6 to run consecutively.

Court’s decision

9       I have reserved my judgment on sentence after convicting Mr Loh on 21 October 2024. I now sentence Mr Loh to eight months’ eight weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

10     There are three issues I have to decide in this case.

Sentencing approach and operative sentencing principles; mental conditions as personal mitigating factor; individual sentences to be imposed and how they should run

11     They are:

(a)     first, the approach to sentencing mentally disordered offenders and the sentencing principle(s) operating in this case;

(b)     second, how Mr Loh’s mental conditions sit as a personal mitigating factor with the operative sentencing principle(s); and

(c)     third, whether I agree with the common ground between the parties in respect of the individual sentences that they have advanced for the charges that Mr Loh has pleaded guilty to and how they ought to run.

12     I resolve the issues in this way:

(a)     The approach in PP v Soo Cheow Wee [2024] 3 SLR 972 at [51] for sentencing offenders with multiple mental conditions is instructive in this case, which focuses on the:

(i)       existence, nature and severity of the conditions;

(ii)       interaction between the conditions;

(iii)       causal link between the conditions and the commission of the offence(s);

(iv)       the extent of the offender’s insight into his conditions and their effects; and

(v)       determination of the operative sentencing principle(s) by balancing the interests of the public and the offender.

(b)     Deterrence and prevention should take greater weight over rehabilitation and retribution in this case. Notwithstanding that Mr Loh suffers from mental conditions that cause the commission of the sexual offences:

(i)       the consideration of prevention by way of incapacitation is the main focus in the sentencing process because he poses a threat to the public and is guilty of more serious offences, given their sexual nature, the victim profiles, the multiplicity in his offences, as well as the moderate and high risk of reoffending;

(ii)       an emphasis on specific deterrence will also provide the discouragement necessary to engender adherence to regular treatment, comprising medication, follow-ups, as well as meaningful community interaction and engagement with counselling, job coaching and placement advice;

(iii)       given that Mr Loh can no longer avail himself of his deceased father’s exceptional familial support and commitment, the likely efficacy of his rehabilitation is reduced and therefore the sentencing consideration of rehabilitation cannot be given greater weight; and

(iv)       likewise, the tampering effect of retributive justice (with Mr Loh’s actions appearing to be as a result of a disordered mind, making him less culpable for the sexual offences that he had committed which cause not an insignificant harm) has to recede into the background with prevention and deterrence coming into the fore.

(c)     As for the remaining offences, specific deterrence and retribution will apply. Mr Loh is culpable for the harm that he had caused to his victims and since his mental conditions had not caused the commission of these offences, he can be specifically and suitably deterred from negative “acute situational reactions” and “responses to external situational triggers that cause him to be unhappy with other people for various reasons”.

(d)     I broadly agree with the individual sentences that the parties have advanced and my decision takes reference from the common ground between the parties in respect of those sentences and how they ought to run.

Analysis of issues

13     I analyse the issues in turn.

Issue 1(a): Sentencing approach

14     I consider the specific facts that was enumerated in Soo Cheow Wee at [51] in determining the impact Mr Loh’s mental conditions would have on sentencing.

Existence, nature and severity of Mr Loh’s mental conditions

15     It is common ground between the parties that Mr Loh suffers from mild intellectual disability and “Other Specified Personality Disorder with mixed personality features”. Gleaned from reports put up by the Institute of Mental Health (“IMH”), the nature and severity of such mental conditions are such that:

(a)     he “has a pattern of behaving outside social norms, even for that expected of an individual with mild [intellectual disability]”;

(b)     he “has difficulties with interpersonal functioning, abiding to social norms and lawful behaviour, and appreciation of the impact of his actions on his victims [that] cannot be solely ascribed to his [intellectual disability]”; and

(c)     his pattern of personality traits do not fit a single cluster or pattern, hence the diagnosis of “Other Specified Personality Disorder”. Mr Loh’s previous treating psychiatrists had depicted him as “naïve, gullible, and emotionally immature”, “odd, eccentric, pseudointellectual, pseudophilosophical, immature and dull”, with “poor self-image, lack of confidence, poor social skills, very limited capabilities and an unclear sexual identity role”. He was also recorded previously not to exhibit a sense of shame or guilt and had little thoughts of consequence.

Interactions between Mr Loh’s different mental conditions and causal link between mental conditions and commission of offences

16     In relation to the sexual offences, the parties have accepted the psychiatric evidence that Mr Loh’s mental conditions “would collectively affect his ability to manage his impulses, which stem from innate, biological urges. His capacity to exercise self-control and restraint with regards to his actions in the alleged offences are impaired”. This was the basis on which the prosecution’s psychiatrist found that there was a contributory link between Mr Loh’s mental conditions and the commission of the sexual offences.

17     In relation to the remaining offences, the parties have also accepted the psychiatric evidence that Mr Loh’s offending behaviour in this regard are “acute situational reactions, which are not a mental illness. They are his responses to external situational triggers that cause him to be unhappy with other people for various reasons”. As such, the prosecution psychiatrist found that there was no causal or contributory link between Mr Loh’s mental conditions and the commission of these other offences.

Extent to which Mr Loh had insight into his mental conditions and effects

18     Mr Loh has shown some appreciation of what could trigger him to offend. For instance, the facts that he had admitted to revealed that he knew chilli made him aroused and yet, he ate spicy food that led him to masturbate in public the day after.

19     He has also exhibited some appreciation of what could keep his offending behaviour in check:

(a)     the first is medication. Mr Loh is aware that he has been prescribed medication to “curb sexual urges” and had oscillated between indicating that the medication was “highly effective in limiting his ability to attain an erection” and that the medication being “not strong enough”;

(b)     the second is counselling advice from his social worker. He was “100% confident [the advice from his MINDS social worker to stop and think twice before acting] would completely keep him out of trouble with the law”. But he went on to commit the offence of public obscenity by masturbating in public because he thought “maybe I didn’t heed her advice”. He was prepared to “think thrice” in future; and

(c)     the third is meaningful engagement in the community through gainful employment. He has not been able to hold on to a job and yet refused to continue with IMH’s Octave Occupation Therapy Sessions after attending a few sessions from September to November 2022.

Issue 1(b): Operative sentencing principles

20     Notwithstanding that Mr Loh suffers from mental conditions that causes the commission of the sexual offences, the consideration of prevention by way of incapacitation is the main focus in the sentencing process because he:

(a)     poses a threat to the public, particularly males from post-puberal adolescents to adults, because of his moderate to high risk of reoffending; and

(b)     is guilty of more serious offences, given their sexual nature, the victim profiles and the multiplicity in his offences.

21     Treatment has not been efficacious thus far. Specific deterrence will provide the discouragement necessary to engender adherence to future treatments, including the following aspects:

(a)     medication, as the prosecution’s psychiatrist opined that current medication would require further titration to reach the required dosage, while its effectiveness is also contingent on his adherence to treatment;

(b)     continuing with his regular follow-ups at IMH.

(c)     attending job coaching and placement programmes to show a real effort to work towards the plans he had expressed to get a job upon his release from incarceration; and

(d)     following his social worker’s counselling advice, or thinking thrice before acting in future, in Mr Loh’s words.

22     Given that Mr Loh can no longer avail himself of his deceased father’s exceptional familial support and commitment, the likely efficacy of his rehabilitation is reduced and therefore the sentencing consideration of rehabilitation cannot be given greater weight. Retributive concerns of pegging Mr Loh’s punishment to a lower culpability for actions that caused harm but were a result of his disordered mind also have to cede to the primary considerations of prevention and deterrence coming to the fore.

23     In respect of the remaining offences, specific deterrence and retribution will apply. He has to account for the harm that he had caused to his victims. His culpability in this regard is not diminished since his mental conditions did not cause the commission of these offences. Therefore, he can also be specifically deterred from such acts of negative “acute situational reactions” and “responses to external situational triggers that cause him to be unhappy with other people for various reasons”. Although he has been assessed to “have a propensity to lose his temper and get frustrated more easily than the average person”, the psychiatric evidence is that it is “within his volition to decide on his reaction (or non-reaction)”.

Issue 2: Mental conditions as personal mitigating factor

24     Against the backdrop of deterrence and prevention, the defence has submitted Mr Loh’s mental conditions can still sit as a personal aggravating factor that diminishes his culpability. As I understand it, there are two aspects to this submission:

(a)     first, “[a]bove and beyond there being a contributory link between his conditions and his offending, [Mr Loh’s] conditions affected his ability to control his impulses and his ability to exercise self-restraint making him act on impulse – as opposed to purely volitionally”; and

second, “[a]bove and beyond the same, the nature of Mr Loh’s intellectual disability and ‘superficial’ understanding of the wrongfulness of his actions (notwithstanding he knew what he did was wrong) further mitigate his culpability”.

25     I make two preliminary points in this regard:

(a)     first, the impairment on Mr Loh’s self-control and restraint caused by his mental conditions affecting his ability to manage his impulses is the reason for saying there is a contributory link between his mental conditions and the commission of the sexual offences. The two should not be divorced from each other and considered separately; and

(b)     secondly, Mr Loh’s mental responsibility was impaired by a combination of his psychiatric conditions. The interaction between Mr Loh’s intellectual disability and his personality order and their collective effect ought to be considered, rather than considering the individual effect of each mental condition per se.

26     I accept the defence’s point that the moral culpability of mentally disordered offenders lies on a spectrum: PP v Kong Peng Yee [2018] 2 SLR 295 at [65]. While it is clear that Mr Loh does not fall under one extreme end of that spectrum comprising offenders who have temporary and situational mental disorders who retain their understanding of their actions and can reason and weigh the consequences: Kong Peng Yee at [65], the psychiatric evidence:

(a)     neither lends itself to the defence’s suggestion that Mr Loh falls under the other extreme end of the spectrum comprising offenders whose mental disorders impair severely their ability to understand the nature and consequences of their acts, to make reasoned decisions, or to control their impulses: Kong Peng Yee at [66],

(b)     nor advance the defence case that Mr Loh’s mental responsibility was significantly or substantially impaired and compromised by his psychiatric disorders like the accused in Roszaidi bin Osman v PP [2023] 1 SLR 222 at [179] and [183].

The IMH reports and indeed the defence’s own psychiatrist did not speak of or speak to severe, significant or substantial impairment brought about by Mr Loh’s mental conditions. Indeed, parties accepted the psychiatric evidence that Mr Loh had a “superficial albeit good-enough understanding” of what is wrong. Coupled with a moderate to high risk of reoffending and to encourage adherence to treatment, deterrence and prevention come to the fore in the sentencing process and will eclipse retributive considerations that demands sentencing be proportionate to the reduced level of culpability as a result of Mr Loh’s disordered mind. The flipside is that as there is no evidence to suggest that Mr Loh is severely mentally ill, the period of incapacitation need not be for a substantial period of time.

Issue 3(a): Sentencing approach for sexual offences

27     There are two main sets of charges relating to sexual offences – OM and public obscenity.

OM charges

28     The sentencing framework for OM offences is laid down in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”) at [45], [48]-[49] as adapted by PP v Wong Teck Guan [2023] SGMC 64 at [53].

29     The parties’ respective positions on sentence on the three OM charges are tabulated:

Charge

Prosecution

Defence

MAC 901279 of 2023

OM against V1

At least 5-6 weeks’ imprisonment

5 weeks’ imprisonment

MAC 906537 of 2023

Attempted OM against V2

At least 2½ months’ imprisonment

2½ months’ imprisonment

MAC 906539 of 2023

OM against V3

6-9 months’ imprisonment

5-6 months’ imprisonment



(1)   OM against V1 on 13 February 2023

30     This is Mr Loh’s most current OM transgression committed against the 16-year-old V1 on a bus, having already committed two previous OM offences, including an attempted OM.

(A)   Offence-specific factors

31     The Kunasekaran framework essentially involves three steps. First, the court should ascertain the gravity of the offence by considering three offence-specific factors:

(a)     Degree of sexual exploitation. Mr Loh pinched the victim’s left chest area lightly over his shirt;

(b)     Circumstances of the offence. V1 was 16 years old at the time of the offence. The offence took place on a bus. Mr Loh had deliberately moved to sit with V1, when V1 placed his bag on the seat next to him. V1 acquiesced when Mr Loh asked if V1 could remove his bag so that Mr Loh could sit beside him. After he asked V1 whether he had any gay friends, Mr Loh made his move and touched V1 for his own sexual gratification.

(c)     Harm caused to the victim. In response to the OM, V1 stood up and swore at Mr Loh. He was sufficiently aggrieved to inform the bus driver of the incident, who then alerted the police.

(B)   Situating case within sentencing bands

32     The next step is to situate this case within the sentencing bands of the Kunasekaran framework at [49]. Offences committed on the public transport network warrant a custodial sentence: PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 at [88]-[89]; Kunasekaran at [58]. This case resides in Band 1 attracting an imprisonment term of less than 7½ months. This band typically involves cases that involve a fleeting touch or no skin-to-skin contact and no intrusion into the victim’s private parts. This case also has these features, but the fact that:

(a)     a young and therefore vulnerable victim was involved;

(b)     the offence also took place on a public transport vehicle; and

(c)     the deliberate yet unsuspecting manner of Mr Loh’s approach that led to the offence and caught V1 unawares;

changes its complexion. I therefore assess the starting point sentence to be five weeks’ imprisonment.

(C)   Offender-specific factors

33     The final step is to take into account the offender-specific personal aggravating and mitigating factors. In this regard, the fact that this is Mr Loh’s third OM transgression and having just committed his last OM against V3 barely a month ago is aggravating and taken against him. I therefore apply an upward adjustment of two-and-a-half weeks’ imprisonment to the starting sentence.

34     Although retributive justice demands proportionality in sentencing according to the moral culpability of the offender and it is acknowledged that Mr Loh is on the spectrum given his mental conditions, retributive concerns ultimately has to cede to the primary considerations of deterrence and prevention: see [26], above.

35     Mr Loh’s plea of guilt carries mitigatory weight and only because in doing so, he has sparred V1 of having to testify against him in a trial. I therefore accord him the full 30% reduction in sentence.

36     The final sentence to be imposed on this OM charge is five weeks’ imprisonment.

(2)   OM against V2 on 29 June 2022

37     Of the three OM offences, this was the first in time. I apply the same analysis to this offence committed against the 16-year-old V2 at a bus stop based on the Kunasekaran framework.

(A)   Offence-specific factors

38     The nature of the sexual exploitation was an attempt by Mr Loh to touch V2’s penis over his clothes.

39     As for the circumstances of the offence, V2 was 16 years old at the time of the offence. The offence occurred at a bus stop. Mr Loh was seated at a different bench from V2 at the bus stop. Mr Loh then deliberately moved to sit with V2, extended his hand to V2 for a handshake before trying to touch V2. It was fortuitous that V2 managed to hit Mr Loh’s hand away before any contact could be made. But even then, Mr Loh persisted in his offending conduct and made a sucking gesture with his fist.

40     In response to the attempted OM, V2 stood up and walked away. Although there was no harm caused to V2 in the form of actual physical contact with his private parts, V2 felt alarmed by the incident. He was sufficiently aggrieved to lodge a police report the following day about the OM incident.

(B)   Situating case within sentencing bands

41     This case also resides in Band 1 attracting an imprisonment term of less than 7½ months. Although there was no contact with and therefore no intrusion into V2’s private parts at all, for which Mr Loh cannot be given any credit that ought to be attributed to V2’s vigilance instead, the deliberate though unsuspecting manner of Mr Loh’s approach guised as a civil handshake, and the persistence in offending by way of his lewd gesture after the OM did not succeed, coupled with the fact that a young and therefore vulnerable victim was involved, brings this case closer to the middle of Band 1.

42     I assess the starting point sentence to be 2¾ months’ imprisonment.

(C)   Offender-specific factors

43     As for offender-specific personal aggravating and mitigating factors, the presence of a similar TIC charge for insulting the modesty of another victim by gesturing an oral sex action is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. I therefore apply an upward adjustment of one month’s imprisonment to the starting sentence.

44     As with the previous OM offence, the primary considerations of deterrence and prevention cast a long shadow over the mitigatory effect of Mr Loh’s mental conditions: see [26], above. I also similarly accord Mr Loh the full 30% reduction in sentence for his guilty plea and only because he had spared V2 of having to testify against him in a trial.

45     The final sentence to be imposed on this OM charge is therefore two months’ and two weeks’ imprisonment.

(3)   OM against V3 on 13 February 2023

46     This is the most egregious of the trio of OM offences against the 15-year-old V3, who was walking along a pavement, and the second in time. I apply the same analysis to this offence based on the Kunasekaran framework.

(A)   Offence-specific factors

47     The nature of the sexual exploitation is in the form of touching V3’s penis over his pants.

48     As for the circumstances of the offence, V3 was 15 years old and walking along a pavement at the time of the offence. Mr Loh approached V3, said hi to V3 and extended his hand to V3 for a handshake. After V3 shook his hand, Mr Loh made his move and touched him. V3 stepped back but Mr Loh persisted in his offending behaviour by making a masturbation gesture and pointing to a nearby block.

49     The harm caused to V3 is apparent. He ran away and was sufficiently aggrieved to lodge a police report the very same day about the OM incident.

(B)   Situating case within sentencing bands

50     This case resides in Band 2 attracting an imprisonment term of less than 7½ to 22½ months. Cases where there was an absence of skin-on-skin contact with the private parts of the victim reside at the lower end of the band. In this case, although the touching was also over V3’s pants, the different complexion is the deliberate yet unsuspecting manner of Mr Loh’s approach, which was the same modus operandi that he had deployed for the previous offence against V2, except that he succeeded on this particular occasion with V3, and the persistence in offending thereafter, coupled with the fact that a young and therefore vulnerable victim was involved.

51     I assess the starting point sentence to be nine months’ imprisonment.

(C)   Offender-specific factors

52     As for offender-specific personal aggravating and mitigating factors, the presence of a similar TIC charge for touching the genitals of another victim over his pants in 2021 is aggravating. I therefore apply an upward adjustment of one month’s imprisonment to the starting sentence.

53     Like the first two offences, prevention and deterrence considerations trump the mitigatory effect of Mr Loh’s mental conditions: see [26], above. I also similarly accord Mr Loh the full 30% reduction in sentence for his guilty plea for sparing V3 of having to testify against him in a trial.

54     The final sentence to be imposed on this OM charge is therefore seven months’ imprisonment.

Public obscenity charges

55     The parties’ respective positions on sentence on the two public obscenity charges are tabulated:

Charge

Prosecution

Defence

MAC 906529 of 2023

‘Flashing’ at V4

At least 1 month’s imprisonment

2-4 weeks’ imprisonment

MAC 904357 of 2024

Masturbating in public

At least 2 weeks’ imprisonment

1 week’s imprisonment



(1)   ‘Flashing’ at V4 on 31 January 2019

56     I agree with the parties that the custodial threshold is crossed for this aggravated ‘flashing’ offence because it is:

(a)     committed against a young and therefore vulnerable victim, 17-year-old V4,

(b)     on a public transport vehicle,

(c)     causing V4 to feel angry and harassed to the extent that he told his father who called the police that same night.

57     Mr Loh also showed persistence in offending by virtue of a similar TIC charge involving the same V4, whom Mr Loh touched again before V4 alighted the bus on his buttocks over his clothes.

58     A one-month imprisonment term as proposed by the parties is therefore justified.

(2)   Masturbating in public on 12 June 2024

59     This is Mr Loh’s most recent transgression among the sexual offences. It is aggravated because:

(a)     Mr Loh’s offending behaviour escalated from previously ‘flashing’ himself to V4 on the bus in 2019 to now masturbating himself at a void deck this year, after already having committed a slew of seven previous sexual offences;

(b)     Mr Loh knew that chilli makes him aroused and yet went ahead to eat spicy food the day before; and

(c)     he committed this offence while on court bail.

60     A two-week imprisonment term as proposed by the prosecution is justified.

Issue 3(b): Sentencing approach for VCH offences

61     The sentencing framework for VCH offences is laid down in:

(a)      Low Song Chye v PP [2019] 5 SLR 526 at [77]-[78] for offences committed before 1 January 2020; and

(b)      Niranjan s/o Muthupalani v PP [2024] 3 SLR 834 (“Niranjan”) at [63] for offences committed after 1 January 2020.

62     The parties’ respective positions on sentence on the VCH charges are tabulated:

Charge

Prosecution

Defence

MAC 906532 of 2023

VCH against V6

At least 3 weeks’ imprisonment

3 weeks’ imprisonment

MAC 906535 of 2023

VCH against V7

At least 1 week’s imprisonment

1 weeks’ imprisonment



VCH against V6 on 16 June 2019

63     The first VCH offence that Mr Loh had committed was against V6 who was a foreign domestic worker in his mother’s employ in their home. He slapped V6 once on the right side of her head and punched the right side of her head. As a result, V6 suffered a face contusion.

(1)   Situating case within sentencing bands

64     There are two steps to the Low Song Chye framework. The first step is to identify the sentencing band and where this case falls within the applicable indicative sentencing range by considering the hurt caused by the offence.

65     Given that V6 only suffered a face contusion, this offence fell within Band 1 of the framework attracting a fine or a custodial term of up to four weeks’ imprisonment for first-time offenders pleading guilty. The custodial threshold is crossed because the offence was committed against a foreign domestic worker, who is regarded as belonging to a special class of vulnerable victims. I assess the starting point sentence to be two weeks’ imprisonment.

(2)   Adjustments to be made to starting point sentence

66     The next step is to make the necessary adjustments to the starting point sentence based on an assessment of Mr Loh’s culpability as well as the aggravating and mitigating factors. Mr Loh’s assault on V6 resulted from a poor acute situational reaction that was triggered by his irritation of the sound from V6 boiling water in the kitchen. He is therefore wholly culpable for the hurt he had caused V6. Coupled with the aggravating presence of a similar TIC charge involving the same V6 for splashing water at her face and body, I apply a one-week adjustment to the starting sentence.

67     The final sentence to be imposed on this VCH charge is therefore three weeks’ imprisonment.

VCH against V7 on 25 February 2021

68     I apply the same analysis to this second VCH offence that Mr Loh had committed against V7, who was a fellow bus commuter, based on the Low Song Chye framework as modified by Niranjan. Mr Loh grabbed a handful of V7’s hair and pulled forcefully, causing V7 pain. V7 did not seek medical attention.

(1)   Situating case within sentencing bands

69     Given that V7 only suffered pain, this VCH offence also fell within Band 1 of the modified Low Song Chye framework, attracting a fine or a custodial term of up to six weeks’ imprisonment for first-time offenders pleading guilty. The custodial threshold is crossed because it is an offence committed on a public transport vehicle. I assess the starting point sentence to be one week’s imprisonment.

(2)   Adjustments to be made to starting point sentence

70     I apply an upward adjustment of one week’s imprisonment because:

(a)     the violence that was visited on V7 is gratuitous and unsolicited, as a result of Mr Loh’s poor acute situational reaction that was triggered by his perception that V7 and her husband were being unhelpful;

(b)     this offence is recalcitrant in the light of his previous VCH offence; and

(c)     the presence of a similar TIC charge for being a public nuisance by shouting repeatedly on the bus is aggravating.

71     The final sentence to be imposed on this VCH charge is therefore two weeks’ imprisonment.

Sentences on two OM, one public obscenity and one VCH charges to run consecutively

72     Because I am sentencing Mr Loh for three or more offences, I am mandated by law to run at least two of the sentences consecutively. I agree with the parties that I should order the following four sentences to run consecutively:

Charge

Individual sentence to run consecutively

MAC 901279 of 2023

OM against V1

5 weeks’ imprisonment

MAC 906539 of 2023

OM against V3

7 months’ imprisonment

MAC 906529 of 2023

Flashing at V4

1 month’s imprisonment

MAC 906532 of 2023

VCH against V6

3 weeks’ imprisonment



73     The aggregate sentence reflects the gravity of the sexual offences involved: PP v Law Aik Meng [2007] 2 SLR(R) 814 at [56], and Mr Loh’s overall criminality: PP v Syamsul Hilal bin Ismail [2012] 1 SLR 973 at [32], which is enhanced because of the multiplicity of his offences: Mohamed Shouffee bin Adam v PP at [41]. The aggregate sentence cannot be said to be substantially above the normal level of sentences for the most serious of the individual offences committed (ie 7½ months’ imprisonment for Band 2 OM): Mohammed Shouffee at [54]. It also cannot be said to be crushing or not in keeping with his past record (clean record notwithstanding but to be taken in the light of the multiple offences Mr Loh had committed) and his future prospects (a nine-month interruption to his current station in life being 58 years old presently): Mohammed Shouffee at [57]. For completeness, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Conclusion

Individual sentences

74     I pass the following individual sentences on Mr Loh, with four of the sentences to run consecutively:

Charge

Sentence

MAC 901279 of 2023

OM against V1

5 weeks’ imprisonment

(consecutive)

MAC 906537 of 2023

Attempted OM against V2

2 months’ 2 weeks’ imprisonment

MAC 906539 of 2023

OM against V3

7 months’ imprisonment

(consecutive)

MAC 906529 of 2023

Flashing at V4

1 month’s imprisonment

(consecutive)

MAC 904357 of 2024

Masturbating in public

2 weeks’ imprisonment

MAC 906532 of 2023

VCH against V6

3 weeks’ imprisonment

(consecutive)

MAC 906535 of 2023

VCH against V7

2 weeks’ imprisonment



The sentences on the remaining charges are to run concurrently with these four other sentences.

Aggregate sentence of eight months’ eight weeks’ imprisonment imposed

75     I therefore impose an aggregate sentence of eight months’ eight weeks’ imprisonment on Mr Loh, backdated to 10 March 2023 when he was first arrested to take into account the periods of remand and exclude the period when he was out on bail from 24 March 2023 to 11 June 2024. He was re-arrested on 12 June 2024 and has been in remand since 12 June 2024.

76     With Mr Loh’s consent, I refer him and his mother to the State Courts Centre for Specialist Services to follow up on a previous referral on 24 March 2023.

Observation on the conduct of the proceedings

77     I will be remiss if I did not commend parties on the manner in which they have conducted these proceedings. While they had their eye on the public interest, they also did not lose sight of the fact that the court has the unenviable task of sentencing a mentally disordered offender, and rendered every assistance to the court. In a previous case, I have endorsed the very measured and sensible approach taken by the defence in generally agreeing with the prosecution’s position on the individual sentences and parting ways only when it is necessary in the interests of the client: PP v Ryan Hafiz Syah bin Razali [2024] SGDC 245 at [46]. Such is also the case here with Ms Teo being fair, measured and even-handed and Mr Tan’s efforts in concurring with most of her sentencing positions. I reiterate that such efforts are not only laudable but enlightened and are to be encouraged in criminal proceedings. It is also clear to me that Mr Tan had built an excellent rapport with Mr Loh and conducted an empathetic defence. The plead-guilty mention was able to proceed smoothly because of that client rapport which I do not take for granted. In the circumstances, Mr Tan has discharged his duties as counsel with diligence and distinction and it is my hope that he will continue to support Mr Loh and his mother post-sentence as far as it is practicable.

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JDE v JDF
[2024] SGDC 279

Case Number:District Court Suit No 388 of 2021
Decision Date:25 October 2024
Tribunal/Court:District Court
Coram: Chiah Kok Khun
Counsel Name(s): Singh Ranjit (Francis Khoo & Lim) for the plaintiff; Prabhakaran S/O Narayanan Nair (Karan Nair and Co) for the defendant.
Parties: JDE — JDF

Civil Procedure – Foreign judgments – Enforcement – Common law action for enforcement of foreign judgment in personam in Singapore – Requirements for enforcement of foreign judgment in personam – Requirement of foreign judgment being for fixed sum of money

Civil Procedure – Foreign judgments – Enforcement – Reciprocal Enforcement of Foreign Judgments Act 1959

Civil Procedure – Foreign judgments – Enforcement – Maintenance Orders (Reciprocal Enforcement) Act 1975

25 October 2024

Judgment reserved.

District Judge Chiah Kok Khun:

Background

1       This case concerns the enforcement of a foreign judgment in Singapore. The question that arises for determination is whether a judgment of the Stockholm District Court can be enforced in Singapore by way of a common law action.

2       The plaintiff is a Swedish citizen. The defendant is a Singaporean. The plaintiff and the defendant married on 8 August 2014. There are two daughters to the marriage, aged eight and nine. The children have both Singapore and Swedish citizenships. The marriage was dissolved by the Stockholm District Court on 29 September 2018.

3       The parties have filed various applications in the Swedish and Singaporean courts since 2017. All proceedings filed in these courts have been contested. It would appear that the dissolution of the marriage is attended with intense acrimony between the parties.

The 7 April Order

4       On 31 August 2017, the defendant petitioned the Stockholm District Court for an order that the plaintiff pays interim, retroactive and final spousal maintenance to her (the “application for maintenance”).[note: 1] In her petition, the defendant stated that the application for maintenance should be adjudicated with Singapore law as the applicable law, while the Swedish procedural laws would apply. The plaintiff did not object to the application for maintenance been heard at the Stockholm District Court. The plaintiff however contested the claims for maintenance; and asked for costs and interest to be ordered against the defendant.[note: 2]

5       The defendant was represented by Swedish solicitors from 31 August 2017 when she submitted her petition for maintenance, until 2 August 2019. On 2 August 2019, the defendant’s Swedish solicitors submitted a written statement, informing the Stockholm District Court that they have ceased to act for the defendant. The defendant’s Swedish solicitors also requested on the defendant’s behalf that the Stockholm District Court continue to translate all documents into English.[note: 3]

6       On 28 March 2019, the Stockholm District Court held a pre-trial hearing. Both the parties attended the hearing remotely.[note: 4] The defendant submitted several written statements to the Stockholm District Court in support of her application for maintenance. The defendant’s written statements also included legal opinions from her Singapore lawyers.[note: 5]

7       On 14 November 2019, the Stockholm District Court heard the application for maintenance. The Stockholm District Court rejected the application and ordered that the defendant to pay costs and interest to the plaintiff, pursuant to the Swedish Code of Judicial Procedure.[note: 6]

8       Under the Swedish Code of Judicial Procedure, the defendant was entitled to a retrial and the Stockholm District Court could grant the defendant a re-trial by summarily making a decision ex parte. On 15 December 2019, the defendant petitioned the Stockholm District Court for a re-trial of her application for maintenance and the re-trial was granted.[note: 7] On 7 April 2020, the Stockholm District Court heard the defendant’s application for maintenance in the re-trial and again rejected her application. The Stockholm District Court also ordered the defendant, pursuant to the Swedish Code of Judicial Procedure, to pay the plaintiff costs and interest.[note: 8] The costs ordered is in the sum of SEK 426,033 (the “7 April Order”). Based on the exchange rate as at 7 April 2020, the equivalent amount in Singapore currency is $60,259.

9       On 9 April 2020, the Stockholm District Court served the 7 April Order by email on the defendant. On 17 April 2020, a translated copy of the 7 April Order was emailed to the defendant by the Stockholm District Court.[note: 9]

The EDE Order

10     Separately, on 15 May 2018, the plaintiff petitioned the Stockholm District Court to appoint an estate distribution executor (“EDE”) to carry out the division of the parties’ matrimonial assets.[note: 10] On 26 June 2018, the defendant’s Swedish solicitors submitted a written statement to the Stockholm District Court, agreeing to the appointment of an EDE to conduct a division of the matrimonial assets between the parties and proposes that a lawyer with experience in international law in Stockholm to be appointed. The defendant’s Swedish solicitors went on to suggest the name of a lawyer, Ms Susanne Ekberg-Carlsson.[note: 11]

11     On 7 September 2018, the Stockholm District Court appointed Ms Susanne Ekberg Carlsson as the Estate Distribution Executor.[note: 12] Between the end of 2018 and 2019, the defendant submitted five written statements to the EDE in respect of the matter of the distribution of the matrimonial assets.

12     On 22 January 2019, the EDE held a hearing in respect of the division of the matrimonial assets. The defendant’s solicitor attended the hearing. On 23 April 2020, the EDE made orders in relation to the division of matrimonial property between the defendant and the plaintiff (the “EDE Order”). Pursuant to the EDE Order, the defendant was to make a distribution payment, and to also pay interest to the plaintiff.[note: 13] The payment was in the amount of SEK 270,622. Based on the exchange rate as of 7 April 2020, the equivalent amount in Singapore currency is $38,288.

13     The EDE served the EDE Order on the defendant on 24 April 2020.[note: 14] On 17 December 2020, the plaintiff’s solicitors sent a letter of demand in respect of the 17 April Order and the EDE Order to the defendant’s former solicitors.[note: 15]

14     The plaintiff filed the present action against the defendant claiming for the sum of $60,259 under the 7 April Order and the sum of $38,288 under the EDE Order. The defendant however contends that the 7 April Order and the EDE Order are unenforceable in Singapore.

15     In support of his case, the plaintiff has produced an expert report on Swedish civil procedure. The expert evidence focuses in particular on the legal processes surrounding the EDE Order.

The issue to be determined

16     At the commencement of the trial, the parties applied for by-consent amendments to their respective pleadings. The amendments to the statement of claim essentially resulted in the withdrawal of the plaintiff’s claim in respect of the EDE Order. The plaintiff proceeds only with the claim in respect of the 7 April Order. As for the amendments to the defence, the key amendment is a reiteration of the defence that the 7 April Order is unenforceable in law.

17     With the by-consent amendments, the dispute is therefore effectively narrowed to a single question of law. As a result, counsel for the parties agreed to dispense with the expert evidence, and the cross-examination of factual witnesses. The trial proceeded on the basis of the facts as disposed to in the affidavits of evidence in chief, and submissions on the question of law made by counsel.

18     The parties agree that the sole question to be determined by me in this action is whether the 7 April Order should be enforced in Singapore by registration under the Reciprocal Enforcement of Foreign Judgments Act 1959 and the Maintenance Orders (Reciprocal Enforcement) Act 1975; or whether it could be enforced by way of a common law action.

19     A subsidiary question to be determined by me is the exchange rate to apply, should I give judgment in favour of the plaintiff.

Analysis and findings

20     The defendant’s case is that the 7 April Order is not enforceable in Singapore as it has not been registered as an order under the Reciprocal Enforcement of Foreign Judgments Act 1959 (the “REFJA”), or the Maintenance Orders (Reciprocal Enforcement) Act 1975 (the “MOREA”). The defendant’s contention is that the 7 April Order should be enforced by way of registration under either the REFJA or the MOREA (collectively, the “Acts”).

21     The defendant contends further that the Acts were passed by Parliament in order to have “proper control over what kinds and types of foreign judgments must be first registered as provided for” under the Acts. The defendant goes on to argue that to allow any foreign judgment to be enforced in Singapore without it first being registered under either of the Acts would render the Acts nugatory and redundant. The thrust of the defendant’s case is that our courts must ensure that all foreign judgments can only be enforced through the Acts. To allow the enforcement of a foreign judgment outside of the Acts is to circumvent the Acts.[note: 16]

The two existing regimes for enforcing foreign judgments in Singapore

22     It is however settled law that quite apart from the registration regime under the Acts, a foreign judgment may also be enforced by an action in court for the amount due under it.

23     The Court of Appeal in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 (“Poh Soon Kiat”) stated as follows at [13]-14]:

13    … The law on the enforceability of foreign judgments in Singapore is not in doubt, and is summarised in, inter alia, Dicey, Morris and Collins on The Conflict of Laws (Sir Lawrence Collins gen ed) (Sweet & Maxwell, 14th Ed, 2006) (“Dicey, Morris and Collins”) at vol 1, para 14-020 as follows:

For a claim to be brought to enforce a foreign judgment, the judgment must be for a definite sum of money, which expression includes a final order for costs, e.g. in a divorce suit. It must order X, the defendant in the [enforcement] action, to pay to A, the claimant, a definite and actually ascertained sum of money; but if a mere arithmetical calculation is required for the ascertainment of the sum it will be treated as being ascertained; if, however, the judgment orders him to do anything else, e.g. specifically perform a contract, it will not support an action, though it may be res judicata. The judgment must further be for a sum other than a sum payable in respect of taxes or the like, or in respect of a fine or other penalty.

14    An in personam final and conclusive foreign judgment rendered by a court of competent jurisdiction, which is also a judgment for a definite sum of money (hereafter called a “foreign money judgment”), is enforceable in Singapore unless:

(a)    it was procured by fraud; or

(b)    its enforcement would be contrary to public policy; or

(c)    the proceedings in which it was obtained were contrary to natural justice.

Thus, in Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515, this court stated (at [12]):

Quite apart from the arrangements under the RECJA or the [Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed)], it is settled law that a foreign judgment in personam given by a foreign court of competent jurisdiction may be enforced by an action for the amount due under it so long as the foreign judgment is final and conclusive as between the same parties. The foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error, whether of fact or of law: Godard v Gray (1870) LR 6 QB 139. In respect of such an action, an application for summary judgment may be made on the ground that the defendant has no defence to the claim: Grant v Easton (1883) 13 QBD 302. The local court will only refrain from enforcing a foreign judgment if it is shown that the plaintiff procured it by fraud, or if its enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were opposed to natural justice: see Halsbury’s Laws of England vol 8(1) (Butterworths, 4th Ed) (1996 Reissue) paras 1008–1010.

24     It is therefore well established that there are in fact two existing regimes for enforcing foreign judgments in Singapore. Under the first regime, the judgment creditor sues on the foreign judgment by way of a common law action in Singapore. Under the second regime, the judgment creditor registers the foreign judgment in the General Division of the High Court. See Poh Soon Kiat at [56]-[57].

25     In her submissions, the defendant makes reference to the rhetorical question of the need for the Acts if foreign judgments can be enforced outside of the Acts.[note: 17] In my view, the rationale of the Acts is plain. The reciprocal regimes for the enforcement of foreign judgments under the Acts are clearly to facilitate expeditious enforcement of judgments of reciprocating countries. In Singapore, such foreign judgments can be enforced by way of registration of the judgments in the General Division of the High Court (s 4 of the REFJA). The MOREA likewise provides for the registration of maintenance orders made in reciprocating countries (ss 6 & 7 of the MOREA). Upon such registration, the judgments and orders are enforceable as if they are judgments and orders made by Singapore courts. The registration procedure under the Acts therefore obviates the court process of a common law action to enforce a foreign judgment, and the time and costs expenditure attendant upon such actions.

26     It does not follow however that foreign judgments that do not come under the auspices of the Acts cannot be enforced in Singapore. Whilst these judgments cannot be enforced by way of the registration process, they can be enforced by the usual court processes, as in the present case. The difference of course is that the party seeking to enforce such judgments does not have the benefit of the time and costs savings that come with the expedited process under the registration regime of the Acts.

27     In the present case, it is not disputed that Sweden is not a reciprocating country under the Acts. However, that by itself is not a bar to the enforcement of the 7 April Order. The plaintiff is enforcing the 7 April Order by suing on it by way of the action before me.

28     It the light of the foregoing, my answer to the question to be determined by me is that the 7 April Order could be enforced by way of a common law action. It is clearly not the law that foreign judgments can only be enforced in Singapore under the auspices of the Acts.

29     In view of the agreement reached by parties at the commencement of the trial to proceed on the basis of the sole question of law of whether the 7 April Order could be enforced by way of a common law action, it follows from my answer to the question of law that the plaintiff’s claim against the defendant should be allowed.

The requirements for the enforcement of a foreign judgment by way of a common law action

30     However, for completeness I turn now to briefly discuss the requirements for the enforcement of a foreign judgment by way of a common law action in Singapore. The requirements can be discerned from Poh Soon Kiat (at [14]) to be as follows:

(a)     The foreign judgment must be a final and conclusive judgment for a definite sum.

(b)     The foreign judgment:

(i)       was not procured by fraud;

(ii)       its enforcement would not be contrary to public policy; and

(iii)       the proceedings in which it was obtained were not contrary to natural justice.

31     In the present case, the 7 April Order is a judgment for the sum of SEK 426,033. It is also final and conclusive. In this regard, it has been held in The “Bunga Melati 5” [2012] 4 SLR 546 at [81] that a judgment is final and conclusive on the merits if it is one which cannot be varied, re-opened or set aside by the court that delivered it.

32     As for the other requirements, there is no allegation by the defendant that the 7 April Order was procured by fraud, or that its enforcement would be contrary to public policy. In respect of the question of natural justice, this is not a live issue in the present case, with the agreement reached by parties at the commencement of the trial to dispense with the expert evidence and the cross-examination of factual witnesses; and for the trial to proceed on the basis of the facts as disposed to in the affidavits of evidence in chief. Parties have agreed to proceed on the basis of the sole question of law of whether the 7 April Order could be enforced by way of a common law action.

33     In any event, I note from the agreed facts that the defendant had actively participated in the court processes that took place before the Stockholm District Court. I note further that the 7 April Order, which is in essence a costs order, was made by the Stockholm District Court on the basis of the Swedish Code of Judicial Procedure and the Swedish Interest Act. The plaintiff had submitted to the Stockholm District Court his legal bills and his solicitors’ time sheets for purposes of his claim for costs and interest. The Stockholm District Court had the benefit of these documents before making the 7 April Order.[note: 18]

34     I therefore find that the requirements for the enforcement of the 7 April Order by way of a common law action are satisfied. In the final analysis, the 7 April Order is in the nature of a judgment debt. As such it is sufficient proof of the debt owed to the plaintiff by the defendant. I am not to revisit the merits of the 7 April Order in the current proceedings or let these proceedings turn into a re-hearing or an appeal.

35     As for the subsidiary question of the exchange rate to apply to the judgment sum, it appears from the closing submissions of the parties that they are now ad idem that any judgment that I give should be in Swedish Kronos.

Conclusion

36     In the premises of the above, the defendant is to pay the plaintiff the sum of SEK 426,033, with interest at 5.33% per annum, from the date of filing of this suit to the date of judgment. Parties are to file written submissions on the question of costs, to be limited to three pages, within 14 days hereof.

A costs-saving and efficient way of resolving dispute

37     I would just add a few words on the different ways to resolve a civil dispute. In the State Courts we have over the years implemented protocols to assist parties to resolve their civil disputes in an efficient, timely, cost-saving and proportionate manner. These protocols include the civil simplified process for Magistrate Court’s cases.[note: 19] Implemented since November 2024, smaller value civil claims of less than $60,000 undergo a simplified process with upfront disclosure, early and robust case management, curtailed interlocutories and a simplified trial. By mutual consent, parties in District Court cases can also avail themselves of the civil simplified process. We have also implemented a protocol which provides for civil trials or assessments of damages to be conducted on a documents-only basis (“DOTA hearing”).[note: 20] The DOTA hearing is to allow for quicker disposal of cases which whilst involving issues that require adjudication, parties’ contentions on such issues could be proven by way of documentary evidence and expressed in writing.

38     These protocols allow parties, and their counsel, to avail themselves of quicker and cheaper ways of resolving their disputes. However, beyond these tools that we have placed at parties’ disposal, parties can, and should, on their own agree on ways to achieve costs and time savings in any given case. These include narrowing the issues and limiting the scope of the dispute. Factual disagreements in particular, take up an inordinate amount of trial time. Agreeing on facts and delineating remaining issues for adjudication goes a long way in shortening proceedings. Counsel can assist the court by advising parties of the costs and time savings in taking such an approach. Unfortunately, there are however counsel who insist on taking up every point, whether legal or factual and litigate it to the bitter end. Much is to be said for proceeding on the one or two most substantial points and focusing on persuading the court to find in favour of a party on the basis of those points. If the court is not with the party on those points, flogging another dozen of smaller issues will not advance its case, and often serves instead to obfuscate the main issue that the dispute pivots on.

39     The approach to the conduct of the present dispute by the counsel before me is exemplary of a costs-saving and efficient way of resolving a dispute. It is not only time and costs saving, but also served to de-escalate a dispute with deep underlying acrimony between the parties. I record my appreciation to both counsel for adopting a sensible approach, and the assistance they have given to the parties and the court in doing so.

[note: 1]Pp 27-33 of plaintiff’s AEIC.

[note: 2]Pp 34-43 of plaintiff’s AEIC.

[note: 3]Pp 1254-1255 of plaintiff’s AEIC.

[note: 4]Pp 546-563 of plaintiff’s AEIC.

[note: 5]Pp 564-927 of plaintiff’s AEIC.

[note: 6]See pp 928-935 of the plaintiff’s affidavit for copies of the judgment dated 14 November 2019 and its certified translation.

[note: 7]See pp 787-927 of the plaintiff’s affidavit for a copy of the Defendant’s petition dated 15 December 2019 for re-trial.

[note: 8]See pp 939-948 of the plaintiff’s affidavit for a copy of the order dated 7 April 2020.

[note: 9]See pp 954-957; 1743-1756 of the plaintiff’s affidavit.

[note: 10]A copy of the petition dated 15 May 2018 is found at pp 962-965 of the plaintiff’s affidavit.

[note: 11]A copy of the Defendant’s written statement to the Stockholm District Court dated 26 June 2018 is found at p 966 of the plaintiff’s affidavit.

[note: 12]A copy of the court order made by the Stockholm District Court on 7 September 2018 is found at pp 969-976 of the plaintiff’s affidavit.

[note: 13]A copy of Executor’s Orders is found at pp 1069-1082 of the plaintiff’s affidavit.

[note: 14]See pp 1083-1084 of the plaintiff’s affidavit.

[note: 15]See pp959-961 of the plaintiff’s affidavit.

[note: 16]Paras 12-13 of the defendant’s closing submissions.

[note: 17]Paras 14 of the defendant’s closing submissions.

[note: 18]See pp 1703-1742 of the plaintiff’s affidavit.

[note: 19]See Order 65 of Rules of Court 2021.

[note: 20]See Practice Direction 52 of the State Courts Practice Directions 2021.

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Public Prosecutor v Benjamin Song Junde
[2024] SGDC 261

Case Number:District Arrest Case No 909301 of 2024 & 11 Others
Decision Date:03 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Louis Ngia (Attorney-General's Chambers) for the Public Prosecutor; Yoong Tat Choy Joseph (Dominion LLC) for the Accused.
Parties: Public Prosecutor — Benjamin Song Junde

Criminal Law – Offences – Property – Cheating

Criminal Law – Statutory offences – Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act – Transferring benefits from criminal conduct

Criminal Procedure and Sentencing – Sentencing – Principles

3 October 2024

District Judge Paul Quan:

Introduction

1       This is an egregious case of health insurance fraud, with the economic value involved in the offences amounting to about S$1.3 million, perpetrated over the course of nearly two years. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; as well as

(c)     parties’ positions and my decision.

Brief facts

2       At the time of the offences, the accused, Benjamin Song Junde (“Mr Song”), a 40-year-old Singaporean, and the co-accused, Charn Sze Choong (“Mr Charn”) were friends. Mr Song acted as a bookie and Mr Charn would place online poker and soccer bets through Mr Song and would settle his gambling winnings and debts with Mr Song on a net basis each week. At the time, Mr Charn was a claims assessor with Prudential Assurance Co Singapore (Pte) Ltd (“Prudential”). From July 2019, Mr Song became aware that Mr Charn was making fictitious outpatient insurance claims (“the fictitious claims”) on two insurance policies held by Mr Song’s wife under which Mr Song was insured (“the insurance policies”). Mr Song did not inform Prudential that he did not make the claims. The payouts were then used to repay Mr Charn’s gambling debts owing to Mr Song and two other third parties. In doing so, Mr Song abetted by intentionally aiding Mr Charn to deceive Prudential from July 2019 to February 2021 on no less than 136 occasions into believing that the claims made on the insurance policies were legitimate. Consequently, Prudential was dishonestly induced to deliver a total of S$1,312,537.87 to various designated bank accounts belonging to Mr Song, Mr Charn and two other third parties. On five occasions in August 2019, Mr Charn caused Prudential to make payouts to Mr Song in excess of the gambling debts he owed to Mr Song. Mr Song agreed to transfer such excess payouts that he received into Mr Charn’s bank account.

Charges

3       Mr Song has pleaded guilty to four charges, three of abetting by intentionally aiding Mr Charn commit an offence of cheating under section 420 of the Penal Code 1871 (2020 Rev Ed) (“PC”) for 74 incidents of insurance fraud, and one of transferring Mr Charn’s benefits from criminal conduct to him under section 47(2)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2020 Rev Ed) (“CSDA”). Mr Song also consented to have eight similar cheating charges under section 420 of the PC taken into consideration for the purpose of sentence (“TIC”) for the remaining 62 incidents of insurance fraud.

Prescribed punishment

4       For each cheating charge, Mr Song must be punished with imprisonment that may extend to ten years. This can also be coupled with a fine. He is also subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the cheating charges are framed as amalgamated charges for separate transgressions amounting to a course of conduct under section 124(4) of the CPC. As for the CDSA charge, Mr Song can be punished with a fine not exceeding S$500,000 and/or imprisonment for a term not exceeding ten years.

Parties’ positions

5       Mr Song is a first offender with no criminal antecedents. The prosecution has sought to impose a global sentence of 17 to 20 months’ imprisonment on him based on:

(a)     general deterrence for offences committed against financial institutions;

(b)     loss caused by insurance fraud offences to insurance companies and consumers;

(c)     difficulty in detecting such fraud offences perpetrated by the very same people whose duty is to protect and safeguard the insurance system by identifying and stopping fraudulent claims in their tracks;

(d)     the high economic value involved in the offences;

(e)     Mr Song’s level of culpability in the offences that resides at the high end of the low culpability spectrum; and

(f)     Mr Song’s early indication of guilty plea.

6       The defence has sought a term of 17 months’ imprisonment, which is the lower end of the sentencing range that the prosecution has submitted, on the basis that Mr Song:

(a)     was not the mastermind and it was Mr Charn who had devised the entire scheme in which he would enter and approve the fictitious claims in his capacity as claims assessor;

(b)     has realised the follies of his ways and is remorseful; and

(c)     had indicated his intention to plead guilty at the earliest available opportunity.

Court’s decision

7       I sentence Mr Song to 18 months’ two weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

8       There are three main issues I have to decide in this case.

Operative sentencing principle; harm-culpability assessment; personal aggravating and mitigating factors; application of case authorities

9       They are:

(a)     first, the main sentencing principle(s) operating in this case;

(b)     second, the assessment of:

(i)       the harm caused by the offences,

(ii)       Mr Song’s level of culpability in the offences; and

(iii)       the aggravating and mitigatory weight to accord relevant factors personal to Mr Song that present themselves in this case; and

(c)     third, the appropriate individual sentences and final aggregate sentence to impose on Mr Song having regard to relevant case authorities.

10     I resolve the issues in this way:

(a)     deterrence and retribution are the operative sentencing principles in this case. There is a strong public interest in deterring insurance fraud because it affects the delivery of financial services and has downstream effects for the general population of consumers. The need for deterrence has to be tempered by retributive considerations the pegs criminal punishment to the nature of the offence and the offender;

(b)     The nature of the offences is serious in that the economic value involved is very high amounting to some S$1.3 million over the course of nearly two years. Mr Song’s culpability is assessed to be low because he is not the mastermind or primary offender. However, to the extent that:

(i)       he is complicit in the knowledge that Mr Charn had devised a scheme to cause Prudential to issue payouts based on the fictitious claims made on the insurance policies, and

(ii)       he has in turn acquiesced to the scheme and did not inform Prudential that he did not make those claims because he was benefitting from the scheme as Mr Charn was repaying the debts owed to him through the payouts, and also extended that same benefit to a third party, one Mr Baey Kian Guan (“Mr Baey”),

Mr Song’s culpability is at the high end of the low culpability spectrum. There is also the aggravating presence of eight similar cheating charges that are TIC and the countervailing mitigating factor of his guilty plea; and

(c)     While the prosecution had relied on case precedents that are not quite on point because they do not arise out of the context of insurance fraud, the individual sentences that the prosecution had sought to extrapolate from them are broadly consistent with the range of sentences that had been imposed for previous cheating offences under section 420 of the PC. Based on the economic value involved in the present offences (being S$164,156, S$307,160 and S$234,137), a primary offender can expect a custodial term of at least 15 months, 22 months and 18 months respectively for the three cheating charges. Given the secondary role of Mr Song, his culpability being in his omission to inform Prudential of the true state of affairs of the claims that were made on the insurance policies, acquiescing in Mr Charn’s scheme for personal gain, and the relatively dated offences, Mr Song’s criminality can be properly reflected in the individual sentences for the primary offender by scaling them down linearly to arrive at imprisonment terms of 7½ months, 11 months and nine months for the three cheating charges.

Analysis of issues: cheating charges

11     I analyse the issues in turn in respect of the cheating charges.

Issue 1: Deterrence and retribution as operative sentencing principles

12     Deterrence and retribution are the main sentencing principles operating in this case.

Strong public interest in deterring insurance fraud

13     There is a strong public interest to deter insurance fraud as it affects the delivery of financial services, implicating the provision and underwriting of insurance provided by insurance companies, which are financial institutions: PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24(e)]. In a case involving the submission of a fraudulent claim on a personal accident insurance policy, the importance of deterring like-minded individuals from abusing the insurance claims system was underscored because if left unchecked, this would lead to increased costs for insurers, whether due to more stringent investigations or enlarged payouts, and would in turn increase the cost of insurance for consumers: PP v Huang Hsin Tian Silver [2023] SLR (StC) 268 (“Silver Huang”) at [20]. In the context of motor insurance fraud, similar observations about losses suffered by insurance companies through fraud are invariably passed down to consumers in the form of increased premiums, as well as the public interest to deter such fraud to curb increasing premiums were endorsed: PP v Sudhagaran s/o Aruvinasan [2023] SGDC 138 at [217].

14     In the present case, the prosecution has made the same point in the specific context of health insurance fraud and the attendant detriment on the health of the general population of Singapore and the quality of healthcare they are able to access, in a climate of soaring insurance premiums that are artificially jacked up by higher costs as a result of losses suffered by insurance companies due to insurance fraud. Offences that are difficult to detect, such as the present committed by claims assessors, who gatekeep the very process that safeguards insurers against fraudulent claims by assessing the merits of the claims, also attract general deterrence: Law Aik Meng at [25(d)].

Proportionality through retributive justice

15     The need for deterrence has to be tempered by proportionality with the insistence of retributive justice pegging punishment to the nature of the offence and the offender. To that end, I analyse and balance the relevant offence-specific harm-culpability factors, as well as offender-specific aggravating and mitigating factors personal to Mr Song.

Issue 2(a): Nature of offence and harm caused

16     The victims against whom the insurance fraud was perpetrated go beyond Prudential but also includes indirect victims who would have to bear the cost of the fraud in the form of increased premiums for their health insurance: Sudhagaran at [217].

Harm caused by offence is high

17     In sentencing property offences, the economic value involved in the offence is a proxy for the degree of criminal benefit received by the offender and the degree of harm caused to the victim, and both are relevant sentencing considerations; therefore the greater the economic value, the heavier the sentence: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [42].

18     In this case, the loss suffered by Prudential, and therefore the harm caused to it, is high. The total loss caused by the offences is in the region of a staggering S$1.3 million. The three cheating charges preferred against Mr Song accounts for more than half that amount about S$700,000, of which he benefited from some S$470,000. Mr Song reaped the full benefits of the fraud because the debts that Mr Charn owed him continued to be financed by these massive payouts at no cost to Mr Song because the fictitious claims did not cause an increase in the premiums payable to maintain the insurance policies. He was also able to extend that same benefit to Mr Baey, a third party. The loss also fell where they were because no restitution was made. The loss must have been passed on and borne by other consumers and/or indeed the general population of Singapore insured for healthcare as a whole, when such losses affect market sentiment and consequently implicate a more conservative approach to the provision and underwriting of health insurance.

19     While the victims’ pecuniary loss and the Mr Song’s pecuniary benefit is proportionate to the severity of the sentence, this relationship is not linear and other relevant sentencing considerations such as offender culpability and offender-specific factors have to be evaluated and weighed: PP v Lim Beng Kim, Lulu [2023] SGDC 9 at [29].

Issue 2(b): Nature of offence and offender culpability

20     I assess Mr Song’s culpability to be low because he was not the mastermind. He did not devise the fraudulent scheme, or enter and approve the fictitious claims on the insurance policies. His complicity was in aiding or facilitating (as opposed to conspiring with or instigating) Mr Charn perpetrate the cheating offences against Prudential through his omission or deliberate inaction.

Mr Song’s culpability was at high end of low culpability spectrum

21     However, his blameworthiness should reside at the high end of the low culpability spectrum for three reasons:

(a)     first, he was complicit in the knowledge that Mr Charn had devised a scheme to cause Prudential to issue payouts based on the fictitious claims made on the insurance policies;

(b)     second, by his deliberate omission and inaction, he has in turn acquiesced to the scheme to Prudential’s detriment;

(c)     third, he was motivated by personal gain not to act and was quite content to turn a blind eye and bury his head in the sand in allowing Mr Charn to make fictitious claims on the insurance policies because the process benefitted him as Mr Charn was repaying any debts owed to him through the payouts and he could also extend that benefit to others; and

(d)     fourth, his sustained omission and inaction enabled Mr Charn to perpetrate no less than 136 occasions of fraud over the course of nearly two years.

Issue 2(c): Offender-specific personal aggravating and mitigating factors

Mr Song not to be regarded as first offender

22     Although Mr Song has no criminal antecedents, I exercise the prerogative not to consider him as a first offender on account of his multiple offences, even if he has no prior convictions: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Amalgamated charges as signalling higher criminality and gravity of conduct

23     The nature of the charges preferred against Mr Song is such that no less than 74 separate transgressions have been amalgamated as a course of conduct across only three individual charges. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct as is the present case: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Presence of TIC charge aggravating

24     The TIC charges are likewise amalgamated, framing 62 separate transgressions as a course of conduct across eight individual charges. They also involve cheating under section 420 of the PC accounting for S$600,000 or so in losses due to the fraud perpetrated. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37].

Full 30% reduction in sentence for guilty plea

25     Mr Song’s guilty plea carries mitigatory weight and I accord him the full 30% reduction in sentence following the recommendations of the Sentencing Advisory Panel in its guidelines on the reduction of sentence for guilty pleas.

Issue 3: Sentences for section 420 PC cheating cases

26     The prosecution relied on PP v Tan Keat Siang [2020] SGDC 220 and other case precedents involving offences under section 420 of the PC to extrapolate the individual sentences it has proposed to impose on each cheating charge, namely:

(a)     Six to seven months’ imprisonment for the first cheating charge involving 19 transgressions with S$164,156 as the economic value involved in the offence;

(b)     11 to 13 months’ imprisonment for the second cheating charge involving 33 transgressions with S$307,160 as the economic value involved in the offence; and

(c)     Eight to ten months’ imprisonment for the third cheating charge involving 22 instances with S$234,137 as the economic value involved in the offence.

27     Although the cases relied upon by the prosecution are not quite on point because they do not arise from the specific context of insurance fraud, the individual sentences extrapolated from Tan Keat Siang for the present charges are broadly consistent with the range of sentences imposed for previous cheating offences. Without prejudice to Mr Charn’s case, I hold the preliminary view that a primary offender can expect a custodial term of at least 15 months, 22 months and 18 months corresponding respectively to the economic values involved in the present offences (being S$164,156, S$307,160 and S$234,137). This could explain previous sentences that had been imposed for lower values of insurance fraud: for instance, in Silver Huang, a one-week imprisonment term was imposed where the economic value of the offence was S$1,128.57; in PP v Lau Soon Kwan [2015] SGDC 209, a six-month imprisonment term was imposed where the economic value of the offence was S$7,110, whereas in PP v Hardeep Singh Kler s/o Jaswant Singh [2017] SGDC 90, eight-month imprisonment terms were imposed where the economic values of the offences were S$4,688 and S$5,500.

28     Mr Song’s criminality can properly be reflected in the individual sentences for the primary offender by scaling them down linearly to arrive at imprisonment terms of 7½ months, 11 months and nine months to be imposed on the three cheating charges, given:

(a)     the secondary role of Mr Song;

(b)     his culpability being in his omission to inform Prudential of the true state of affairs regarding the fictitious claims on the insurance policies;

(c)     his acquiescence in Mr Charn’s scheme for personal gain; and

(d)     that he had stayed crime-free during the lapse of time between the time the offences were first committed and sentencing today.

Analysis of issues: CDSA charge

29     I analyse three specific issues that the CDSA charge engages with, namely the approach in sentencing the CDSA offence, Mr Song’s culpability in the offence and the mitigatory weight of his guilty plea.

Sentencing approach

30     For the CDSA charge, the prosecution has justified the sentence of one to two months’ imprisonment that it has sought on the basis of Chong Kum Heng v PP [2020] 4 SLR 1056. The case of PP v Merlur bte Ahmad [2024] SLR (StC) 1 is more on point. As I had observed in PP v Bryan Lim Teng Siang, unreported, District Arrest Case No 904407 of 2024, Melur applied the indicative sentences set out in the sentencing bands for “self-laundering” offences where criminal benefits were not recovered, which were laid down in Chong Kum Heng v PP [2020] 4 SLR 1056 at [71]. A discount to the indicative sentences was also applied in Melur because the accused in that case was not laundering her own ill-gotten gains, but what she had reasonable grounds to believe to be another person’s criminal benefits. This was also the case for Mr Song. For present purposes, it suffices to note that a two-week imprisonment term was imposed on the accused in Melur upon her conviction after trial on the section 47(2)(b) CDSA charges involving transfer amounts of between S$1,960 to S$2,975.

Mr Song’s culpability

31     I therefore took two weeks’ imprisonment as the starting sentence and apply an upward adjustment of two weeks’ imprisonment based on Mr Song’s culpability in the offence:

(a)     first, Mr Song had reasonable grounds to believe, if not knew, that he was transferring Mr Charn’s benefits from criminal conduct to him because Mr Song knew that he caused Prudential to make payouts that were in excess of the debt repayments from him to Mr Song from time to time;

(b)     second, he agreed to help transfer the excess payouts to Mr Charn when this had nothing to do with him or the repayment arrangements that existed between him and Mr Charn; and

(c)     third, he did on five separate occasions transfer to Mr Charn a total of S$2,657, which he knew were criminal proceeds from Mr Charn’s fictitious claims on the insurance policies.

Full 30% reduction in sentence for guilty plea

32     On the basis of his guilty plea as a mitigating factor, I accord him the full 30% reduction in sentence and arrive at the final sentence of three weeks’ imprisonment for the CDSA charge.

Conclusion

Individual sentences

33     The individual sentences that I impose on the four charges preferred against Mr Song are:

(a)     seven months’ two weeks’ imprisonment for the first cheating charge involving 19 transgressions with S$164,156 as the economic value involved in the offence;

(b)     11 months’ imprisonment for the second cheating charge involving 33 transgressions with S$307,160 as the economic value involved in the offence;

(c)     nine months’ imprisonment for the third cheating charge involving 22 instances with S$234,137 as the economic value involved in the offence; and

(d)     three weeks’ imprisonment for the CDSA charge for transferring Mr Charn’s benefits from criminal conduct to him totalling S$2,657 on five occasions.

Aggregate sentence of 18 months’ two weeks’ imprisonment imposed

34     I am mandated by law to run at least two of the sentences consecutively and I therefore order the sentences on the first and second cheating charges to run consecutively with the sentences on the third cheating and CDSA charges to run concurrently with these other two sentences.

35     I therefore sentence Mr Song to an aggregate imprisonment term of 18 months and two weeks. The aggregate sentence reflects the full extent of Mr Song’s criminality and cannot be said to be crushing and not in keeping with Mr Song’s past record (clean record notwithstanding in the light of multiple offences that he had committed) and his future prospects (being 40 years old currently).

"},{"tags":["Criminal Law – Offences – Outraging of modesty","Criminal Procedure and Sentencing – Sentencing – Appeals"],"date":"2024-10-22","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No. 903603 of 2022 and another, Magistrate's Appeal No. 9149-2024-01","title":"Public Prosecutor v JDD","citation":"[2024] SGMC 75","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32373-SSP.xml","counsel":["Quek Lu Yi (Attorney-General's Chambers) for the Public Prosecutor","Ramesh Chandr Tiwari (Ramesh Tiwari) for the Accused."],"timestamp":"2024-10-28T16:00:00Z[GMT]","coram":"Lim Tse Haw","html":"Public Prosecutor v JDD

Public Prosecutor v JDD
[2024] SGMC 75

Case Number:Magistrate Arrest Case No. 903603 of 2022 and another, Magistrate's Appeal No. 9149-2024-01
Decision Date:22 October 2024
Tribunal/Court:Magistrate's Court
Coram: Lim Tse Haw
Counsel Name(s): Quek Lu Yi (Attorney-General's Chambers) for the Public Prosecutor; Ramesh Chandr Tiwari (Ramesh Tiwari) for the Accused.
Parties: Public Prosecutor — JDD

Criminal Law – Offences – Outraging of modesty

Criminal Procedure and Sentencing – Sentencing – Appeals

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9149/2024/01.]

22 October 2024

District Judge Lim Tse Haw:

Introduction

1       The accused person, (“the Accused”), claimed trial before me to the following two charges:

First charge (MAC 903603 of 2022)-

On 19 August 2021, at or about 12 a.m, in a car driven by [the Accused], [the Accused] did use criminal force on [the Victim] by using his hand to touch her right breast, skin-on-skin, on two occasions to outrage her modesty, and he has thereby committed an offence punishable under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)(“the Penal Code”);

Second charge (MAC 903604 of 2022)-

On 19 August 2021, at or about 12 a.m, in a car driven by [the Accused], [the Accused] did use criminal force on [the Victim] by using his hand to touch her vagina, skin-on-skin, intending to outrage her modesty, and he has thereby committed an offence punishable under s 354(1) of the Penal Code.

2       After a trial, I found the Accused guilty of the above two charges and convicted him. I sentenced him to a global sentence of 12 months’ imprisonment and three strokes of the cane.

3       Being dissatisfied with the above decisions, the Accused has appealed against the same.

The Prosecution’s Case

(i)   Statement of Agreed Facts

4       By way of a Statement of Agreed Facts (“ASOF”), both the prosecution and defence agreed on the following material facts:

I.    The Accused

(1)    The accused is (redacted), a 26-year-old Singaporean male (date of birth (redacted) bearing NRIC No. (redacted).

II.    Facts Concerning The Investigative Process

(2)    On 21 August 2021, at 8.25 pm, the Victim lodged a police report at Woodlands East Neighbourhood Police Centre. Sergeant (1) Lee Zheng Quan recorded the report in a police report bearing Report No. L/20210821/2059.[note: 1]

(3)    On 22 August 2021, at about 12 pm, the following items of clothing were seized as case exhibits:

(a)    One black bra[note: 2]

(b)    One grey panty[note: 3]

(c)    One black top[note: 4]

(d)    One black pants[note: 5]

(4)    The seizure of the case exhibits set out at [3] was documented by Investigation Officer Inspector Wong Xiao Hui on 13 April 2022, at 2.50 pm, in a police report bearing Report No. L/20220413/2034.[note: 6]

(5)    On 23 August 2021, at 8.02 pm, Forensic Specialist Lim Shu Qiang, under the direction of IO Fawzey, took 12 photographs of [the accused’s car].[note: 7]

(6)    At 11.35 a.m, on the same day, the accused was placed under arrest at Woodlands Police Divisional Headquarters for an offence of outrage of modesty under s 354(1) of the Penal Code. On the same day at 11.42 a.m, Investigation Officer Staff Sergeant Muhammad Fawzey bin Karimghani (“IO Fawzey”) lodged a police report bearing Report No. L/20210823/2013[note: 8] to document the arrest.

(ii)   Evidence of the Victim

5       The Victim[note: 9] testified that she was born in May 2001. At the material time of the offences on 19 August 2021, she was studying for a diploma in mass communication. She was also working part-time at a restaurant at Jem Shopping Centre in Jurong (“the Restaurant”) since January 2021.

6       She described the Accused as her co-worker. She was not sure if he was working at the Restaurant, as she only saw him a few times helping out in the Restaurant before the day of the incident. On 18 August 2021, she started her shift at the Restaurant about around 11 a.m. to 12 noon. Her duties were to take orders from the customers and clear tables. The Accused was also working at the Restaurant on that day. She described her relationship with the Accused as professional in nature as they were not friends, and they did not have much interaction. She described the top she was wearing on that day[note: 10] was soft and stretchy, and had a V-shaped neckline. The pants she was wearing that day[note: 11] was also stretchy and smooth.

7       On that day, a friend of the Restaurant’s manager (“the Manager”)[note: 12] came for a visit and bought them and some other colleagues alcoholic drinks. The Victim had two bottles of Soju with Sprite. The drinking session ended at about 11.30 p.m. The Victim said she was tired and sleepy. The Manager and his friend left first. The Victim, another colleague “M” and the Accused were the last to leave the Restaurant. “M” then asked the Accused to send the Victim home, as “M” could walk home from the Restaurant. The Victim was okay with “M"’s suggestion. The Victim said she did not pay any attention as to whether the Accused drank any alcohol that night.

8       When they reached the Accused’s car, the Victim said she would usually take the back seat of a car but the Accused asked her to sit at the front passenger seat instead. The Victim then sat at the front passenger seat of the Accused’s car. While in the car, the Victim texted her sister[note: 13] (“Sister”) to tell her she would be coming home.[note: 14] The Accused then told the Victim to stop texting and took her phone and kept the phone for her. The Victim also said that initially she was hugging her bag in front of her but the Accused told her to put her bag in the back seat, which she did. The Accused then told her to rest and close her eyes to sleep. She did close her eyes but she did not sleep as she could not fall asleep that easily. She was also feeling a bit queasy.

9       After the Accused had driven for a while, the Victim vomited in her mask and some of the vomit spilt onto her top and chest area. The Accused then stopped his car along the expressway. He got out of the car and came to the Victim’s side. He then patted her chest area on her top where the vomit was to help her clean up. He then went back into the car and started driving again. The Victim apologised to the Accused for vomiting in his car. The Accused then told the Victim to rest and sleep. The Victim then closed her eyes to rest.

10     After the Accused had driven for a few minutes, the Victim felt something cold on her breast and she felt the Accused squeezing her right breast. I observed that the Victim looked distressed and broke down at this stage of her evidence in chief. [note: 15] The Victim testified that the Accused’s hand went under her top and bra and squeezed her right breast. The squeeze was for a few seconds and he did it twice. After the first time, the Victim said she just froze and did not know what to do. She was also afraid that if she were to react, she did not know what else he would do to her. So she did not react. When he did it the second time, she also did not react.

11     The Victim testified that she also felt the Accused’s hand moved up from her thigh, into her pants and then into her panty, and stroked her vagina near the pubic hair at least once. However, she cannot remember whether this was after or in between the two times when the Accused touched her right breast. The Victim said that she did not consent to the touching. She was disgusted by this. The Victim said that on all the occasions when the Accused touched her, he was not driving.

12     After this, the Accused tapped on her shoulder to tell her that they had arrived at her house. She took her bag from the car, thanked the Accused and quickly got off the car. Her Sister was still waiting up for her when the Victim reached home. A short while after she reached home, the Victim started crying and said to her Sister “he touched me, he touched me”. Her Sister was confused and asked her who touched her and where, but the Victim said she cannot remember if she had answered her Sister’s questions. Her Mother[note: 16] also woke up and the Victim also told her that someone had touched her inappropriately. The Victim eventually did tell her Sister and Mother it was her co-worker who touched her but they did not know who the Accused was. As it was already very late at night, her Mother told her to go to sleep and they will discuss the matter the next day.

13     When asked by the learned deputy public prosecutor (“DPP”) why she only lodged the police report[note: 17] on 21 August 2021 when the incident took place on 18 August 2021, the Victim explained that she was afraid that people would not believe her as there were only the Accused and her in the car. She decided to lodge the police report as she did not want the Accused to get away with it. She said she was disgusted with herself over the incident and as a result, she did not even want her Mother to hug her and did not like people touching her. I observed that the Victim looked distressed and broke down again at this stage of her evidence in chief. [note: 18] The Victim also took two weeks’ leave from her work. Even when she was back at work after that, she became anxious at work whenever other people got close to her. However, she was relieved that the Accused was sent to the Restaurant’s other outlets.

14     In cross-examination, when counsel for the Accused, Mr Ramesh Tiwari (“Mr Tiwari”) asked the Victim why she did not open her eyes when the Accused touched her, the Victim said that the Accused probably thought that she had blacked out and that was why he touched her. She said she was afraid that the Accused may threaten her if she did so. It was also put to her that the Accused did not help her clean up after she had vomited in the car but she disagreed.

15     Mr Tiwari then applied to impeach the Victim’s credit based on the purported inconsistencies between her evidence in court and her statement to the police in D1. Having perused her statement in D1 and compared with her evidence in court, I allowed the application as the purported inconsistencies between D1 and her evidence in court were material.

The Impeachment Proceedings

16     The purported inconsistencies between the Victim’s evidence in court and D1 were as follows:

(a)     “Upon reaching (the Accused)’s car, I sat in front.”[note: 19]

17     Mr Tiwari pointed out to the Victim that unlike her evidence in court, she did not mention in D1 that she had wanted to sit at the back but the Accused asked her to sit in front. The Victim answered that she cannot remember.

(b)     “After wiping (the vomit), I closed my eyes and he continued to drive.”[note: 20]

18     Mr Tiwari pointed out to the Victim that unlike her evidence in court, she did not say in D1 that it was the Accused who asked her to close her eyes. The Victim explained that she did not think that it was an important detail.

(c)     “(I felt a hand going underneath my shirt and) going to my bra area.”[note: 21]

19     When asked by Mr Tiwari why she did not say in D1 that the Accused’s hand went under her bra, the Victim said she did not know.

(d)     “(The Accused’s hand) then go underneath my panty and touched a few seconds.”[note: 22]

20     Mr Tiwari asked the Victim why she did not say in D1 that the Accused touched her vagina. The Victim explained that the recording officer did not ask but she did demonstrate it to the recording officer. To her, underneath the panty was the vagina as her panty was the low waist type.

(e)     “At that time I was drunk”[note: 23]

21     Mr Tiwari pointed out to the Victim that she had insisted in her evidence in court that she was not drunk but merely tipsy. The Victim said she was tipsy but the recording officer typed the word “drunk” in D1.

(f)     “The incident lasted about a minute.”[note: 24]

22     When it was pointed out to her that she said in her evidence in court that the incident lasted about a few seconds, the Victim said that the recording officer asked her to give a rough estimate of the duration and that was what she did.

(g)     “(The Accused’s) hand got under my shirt, touched and pressed my breast a few times”[note: 25]

23     When asked why she did not say in D1 that the Accused’s hand went underneath her bra, the Victim said she told the recording officer that the same thing happened.

(h)     “Then followed by going to my pants area, to touch my panty”[note: 26]

24     When asked why she did not say in D1 that the Accused touched her vagina, the Victim said that she did tell the recording officer that he touched her vagina.

(i)     “It also lasted about a minute”[note: 27]

25     The Victim gave the same explanation that she was only asked to give an estimate of the time taken and she gave an estimate.

(j)     “However, I did not call for Police straight away because I was tired and also wanted to inform my workplace about it. My boss (PW1) told me he had spoke to (the Accused) about the matter however he deny it. I then decided to lodge a Police report.”(sic) [note: 28]

26     When it was pointed out to her that the reason she had given in D1 for lodging the police report was different from her evidence in court, namely, that she was afraid that people would not believe her, the Victim explained that it was her internal reason that she was afraid that people may not believe her. The reason given in D1 was also another reason she decided to lodge the police report.

27     In re-examination, the Victim explained that to her, being tipsy meant that one was a bit high but could still walk and talk, while being drunk meant that one cannot walk and talk, and cannot remember anything. She said that during the incident, she was conscious of what the Accused did to her as she was just tipsy, or “slightly drunk”.[note: 29]

(ii)   Evidence of the Sister

28     The Victim’s Sister[note: 30] was two years younger than the Victim. She was still awake at home when the Victim came home after midnight on 19 August 2021. She testified that when the Victim came home, she told her that someone touched her on her chest and private part area. When she asked the Victim who had touched her, the Victim started crying. The Victim told her Sister it was the Accused but told her that she would not know who the Accused was. The Sister then told the Victim to take a shower to calm down. Her Mother also woke up and the Sister told her what happened. The Mother was shocked but told the Sister not to worry. After the Victim had showered, she was told to sleep first and that they would talk about it in the morning.

29     The next morning, the Victim told her Mother and Sister what the Accused did to her in the car but in more details. Thereafter, in discussion with their Mother and father, the Victim said that she wanted to make a police report as it was a crime. The Sister said that she was not involved in the making of the police report.

30     After the incident, the Sister testified that the Victim would cover herself with a blanket even though it was not cold. She also did not dare to come home late at night or sit at the front passenger seat of a car.

(iii)   Evidence of the Mother

31     The Mother testified that she was awoken from her sleep when she heard the Victim crying. The Sister came into her room to tell her that someone had touched the Victim in a car and told her not to scold the Victim as the Victim was crying. After this, the Sister also cried. When the Sister and she went out from her room to the hall, the Victim was still crying and said “someone touched me and nobody will believe me”. The Mother then consoled the Victim and when asked who had touched her, the Victim said it was her colleague, the Accused. The Victim told her that the Accused had sent her home and that he had touched her while sending her home. The Victim said that the Manager knew that the Accused had sent her home. The Mother then called the Manager and told him what the Victim had alleged against the Accused. The Manager then said that he will call the Accused about the allegation. The Manager then called the Mother back and told her that the Accused said that he sent the Victim home out of good will and he was being accused of touching the Victim.

32     The Manager then spoke to the Victim and the Victim told the Manager that the Accused had touched her. When the Manager asked the Victim if she was sure that the Accused had touched her as it would be a criminal case, the Victim then cried very loud and refused to speak to the Manager anymore. The Mother then told the Manager to let the Victim sleep first and she will find out more from the Victim the next day.

33     The next day, the Victim told her and her husband (i.e. the Victim’s father) what happened in the car in more details. She then called the Manager to tell him that the Victim was not able to go to work and asked the Manager to take leave on her behalf. The Mother also told the Manager to tell the CEO of the Restaurant (“the CEO”) what happened. The following day, the CEO called the Mother and told her that he had spoken to the Accused about the incident and the Accused denied the allegation. However, the Accused told him that if this matter was not reported to the police, the Accused will apologise to the Victim. The Mother then told the CEO that if the Accused did not commit the offence, there was no need for him to apologise. It would be the Victim and her family’s decision whether to report to the police on this matter. The CEO agreed with the Mother’s position.

34     The Mother also testified that after the incident, the Victim would hide in her room and cover herself with blanket even though it was hot. She would also cry whenever they asked her about the incident. She also told the Victim that if she really wanted to make a police report, she must do so as soon as possible. The Victim said she wanted to as the incident did happen.

35     In cross-examination, when asked by Mr Tiwari if she knew all along that a delay in making a police report on the incident would be bad for the Victim’s case, the Mother said that she knew that they should not delay in making the police report, but explained that the Victim had social anxiety. She had tried very hard to ask the Victim to go to the police station to make the police report but every time she did so, the Victim would cry. Eventually she told the Victim that they cannot delay anymore.

(iv)   Evidence of the Manager

36     The Manager testified that on the day in question at about 10 pm, he had alcoholic drinks with the Victim, his friend and another colleague “M” at the Restaurant. The Accused was also present but he did not drink. He and his friend then left the Restaurant first. When he was leaving, he saw the Victim resting with her eyes closed. She told him she was okay when he asked her. He went for supper with his friend and returned home at about 2 a.m. the next morning.

37     He then received a phone call from the Victim’s Mother. She told him that the Victim had locked herself in the room and was crying. The Mother told the Manager that the Victim told her that she was molested by the person who sent her home. The Victim told her Mother that the Accused put his hand into her T-shirt and pants, and it happened a few times. The Manager said that he remembered this clearly as it was a serious matter and that he was shocked.

38     He then called the Accused and told him about what the Victim had alleged against him. The Accused told him nothing happened and said that he did not do “this type of thing”. He also said that he was being “a good Samaritan to send her home, and then she accused me of this type of thing”.[note: 31] He then called the Victim’s Mother back and told her that the Accused said that he did not do such thing. He then told the Mother to let the Victim rest and he will speak to the Victim again the following day.

39     He spoke to the Victim around noon time the next day. He told her to think carefully whether the Accused did touch her and she said “yes”. He then told the Victim to take care and rest, and that he would report the matter to his superior, the CEO. The Manager then duly informed the CEO of the matter. The Manager testified that the CEO had since passed away.

40     The Manager confirmed that the Victim took a short break of one to two weeks after the incident before she returned to work. The Restaurant’s management also transferred the Accused to another outlet of the Restaurant, so that the Victim and the Accused did not have to meet each other at work. The Manager also noted that the Victim was not her usual self when she went back to work and was only back to her bubbly self about a month later.

41     In cross-examination, the Manager agreed with Mr Tiwari that the Accused was shocked when told of the allegation by the Victim against him. The Manager also agreed with Mr Tiwari that the Accused was transferred to another outlet of the Restaurant to spearhead the start of that outlet which was new.

The Defence’s Case

The Evidence of the Accused

42     On 18 August 2021, the Accused said that he was working at the Restaurant. At closing time, their colleague “M” asked him to send the Victim home as she was “high” and intoxicated. He noticed that she had been drinking before this and she was louder than her usual self. He agreed to send the Victim home and he asked her for her address.

43     During the journey, the Victim suddenly wanted to vomit. Before he could pull over his car, the Victim vomited. He then pulled over his car. He then took some tissues, got out of the car to pass her the tissues. She then used the tissues to clean herself and passed the soiled tissues back to him. He threw them on the roadside and continued driving. He merely passed her the tissues and did not help her to clean herself. He did not touch her at all. When they reached the Victim’s home, he used both his hands to shake her shoulder to wake her up as she did not wake up when he told her that they had arrived at her home. The Accused denied that he had outraged the Victim’s modesty as alleged.

44     When the Manager called him to tell him about the Victim’s allegation, he told the Manager that no such thing happened and how could the Victim say such a thing. The Accused also denied telling the CEO that if the Accused agreed not to make a police report, he would apologise to the Victim.

Cross-examination

45     In cross-examination, the Accused said that he was employed by the Restaurant as an operations executive, a position that was akin to a manager. He was senior to the Victim at work, who was a service crew. Sometimes, he would give orders to the Victim to comply. He had known the Victim for about six months as at the date of the incident. He agreed that his relationship with the Victim was strictly professional, and he was not aware of any bad blood between the Victim and him. He maintained that he was only doing her a favour when he agreed to send her home in his car on the night of the incident. He had no explanation as to why the Victim would make such an allegation against him as it was not true. He was shocked by her allegation and at a loss as to why she did this. The Accused said he believed that the Victim was drunk that night, as she was not her usual self and louder than usual.

46     He said he could not remember if the Victim had approached the back seat of his car first but said that it was possible. He denied that he told her to stop texting or that he took her phone. Although the Accused said that he cannot remember if he saw the Victim closed her eyes and rested in the car, he said that it was possible that he had told her to close her eyes and rest. When the Victim vomited in his car, he thought that she was still drunk. However, he said that he did not help her to clean up as he did not want to touch her as she was in a drunken state. After the Victim had vomited in his car, he thought that she was asleep and not conscious. However, he denied that he had molested her and thought that he could get away with it. He also denied the learned DPP’s suggestion that he was prepared to apologise to the Victim if she did not make a police report on the matter, and that he did so because he had a guilty conscience.

The Prosecution’s Closing Submissions

47     In the prosecution’s closing submissions[note: 32], the prosecution submitted that the Victim was a credible witness, whose account of the incident bore a ring a truth. This was because her account was internally and externally consistent in material aspects and when considered against the totality of the evidence.[note: 33]

48     The prosecution submitted that the Victim’s evidence was reliable, because although she was tipsy, she was not drunk. She was conscious and aware of what was going on that night.[note: 34] She can be seen walking from the Restaurant on her own unaided in the CCTV footage from the Restaurant when she was leaving the Restaurant with the Accused and her colleague “M”.[note: 35] She also had no difficulty telling the Accused her address. After that, she was also able to message her Sister to tell her to help open the house door as she could not find her house key. She was also able to alert the Accused when she felt like vomiting and asked the Accused if he had a plastic bag.

The Victim’s Evidence was Internally Consistent

49     The prosecution further submitted that Victim had been internally consistent on the material facts of the allegation of the molest: who molested her and where, when and how she was molested. Although there were some inconsistencies, the prosecution submitted that they were not material and did not detract from the truth of the Victim’s account. They also showed that she was a candid witness.[note: 36]

50     On the inconsistency concerning the number of times the Accused had touched the Victim’s vagina, where the Victim had testified in her evidence in chief that the Accused had touched her vagina at least once (see [11] above) but had said in her police statement in D1 that the Accused had touched her vagina twice,[note: 37] the prosecution submitted that the Victim was being candid when she admitted during her evidence in chief that she could only remember distinctly that the Accused had touched her vagina at least once, and that she was not sure if this happened after the first or second time when the Accused touched her breast. The prosecution also pointed out that this only relates to the number of times she was touched on her vagina, and that the Victim was steadfast in her evidence that she was touched on her vagina. This frank disclosure, the prosecution submitted, despite knowing that it was inconsistent with her police statement in D1, bolstered the Victim’s credibility.[note: 38]

51     On the inconsistency on the duration of the molest referred to in [22] and [25] above, the prosecution stressed that these were only estimates and submitted that it was not reasonable to expect any victim of a sexual offence to recall the exact duration of such a traumatic event.[note: 39]

52     The prosecution further submitted that the Victim was also remarkably consistent on the secondary facts, such as:

(a)     The events leading up to the molest;

(b)     Why she did not react upon being molested; and

(c)     The events leading up to her lodging of the police report.[note: 40]

The Victim’s Account was Corroborated by Extrinsic Evidence

53     It was the prosecution’s submission that the Victim’s account was also corroborated by the following extrinsic evidence:

(a)     her demeanour upon reaching home in the immediate aftermath of the molest, when she started crying after telling her Sister that she was touched by the Accused;

(b)     the contemporaneous disclosure she made to her Sister and Mother that she was touched by the Accused; and

(c)     Her behaviour in the weeks after the incident, when she was always taking showers, hiding under her blanket and did not let her Mother hug her. She also took two weeks off work and felt anxious at work.[note: 41]

The Accused Failed to Raise Any Reasonable Doubt

54     The prosecution then submitted that the Accused’s evidence consisted of a bare denial of the charges. He also confirmed that there was no bad blood between the Victim and him, and no reason for her to make false allegation against him. He even did her a favour by sending her home. [note: 42]

55     The prosecution further submitted that his post-offence conduct, when he informed his CEO that he was prepared to apologise if the matter did not escalate to the police, was telling of his guilty conscience. Although the Accused had denied saying this, the prosecution submitted that the Mother’s evidence on this conversation with the CEO was consistent and unshaken even after cross-examination. Hence, this cast doubt on his denial of the charges. [note: 43]

The Defence’s Closing Submissions

The Victim’s Evidence was Not Unusually Convincing

56     In the defence’s closing submissions[note: 44], Mr Tiwari submitted that the evidence of the Victim was not unusually convincing and therefore the prosecution had failed to discharge its burden of proof, on the following grounds:

(a)     The Victim’s account of what happened from the time she entered the car was doubtful

57     Mr Tiwari submitted that it was highly unlikely that the Victim had initially wanted to sit at the back of the car but the Accused asked her to sit in front. This was because as the Accused was giving the Victim a lift home, it would be “more natural” for her to sit in front.[note: 45]

58     On the Victim’s allegations that it was the Accused who had asked her to put her bag at the back of the car and to hand her mobile phone to him when she was messaging her Sister using the mobile phone, Mr Tiwari submitted that there was simply no reason for the Victim to obediently follow the Accused’s requests. Mr Tiwari then made the point that she was saying all these to show that the Accused’s requests had facilitated the offences, although she claimed that she did not realise this at the material time.[note: 46]

(b)     When the Victim was touched by the Accused, she did not open her eyes at all

59     Mr Tiwari submitted that if it was true that the Victim was shocked by the Accused’s unexpected touch, her natural reaction would have been to instinctively open her eyes to see what was happening. If it was the Victim’s claim that the Accused had molested her because he felt that she was unconscious, the best thing for her to do would be to open her eyes “to show that she was not unconscious”. The fact that the Accused had touched her a second time meant that it would have been obvious to her that keeping her eyes closed “was not working” and yet she still did not open her eyes. Mr Tiwari then submitted that the Victim’s “description of the 2 incidents and her reaction (was) inconsistent with what she claimed he had done”.[note: 47]

(c)     The Victim’s inconsistent accounts of what had happened

60     First, Mr Tiwari pointed out that in her evidence in chief, the Victim merely said that she was “tired and sleepy” but did not say that she was “tipsy” in the car. Then in cross-examination, she said that she was “tipsy” but denied that she was drunk. However, in her statement in “D1”, she said that she was drunk. Mr Tiwari submitted that the Victim was playing down the fact that she was “actually drunk” in the car that night, as she had said so in her statement in “D1”. This was to make her evidence “more believable”.[note: 48]

61     Second, as regards the second time the Accused had allegedly touched her breast, the Victim said in her evidence in court that his hand went under her bra, but in the statement in “D1”, she said that his hand “went under her shirt and touched and pressed her breast a few times” and the Victim did not correct what she said in “D1”.[note: 49]

62     Third, on the duration of the incidents, the Victim had given different evidence, from a few seconds in her evidence in court to about a minute in “D1”.[note: 50]

63     Fourth, she had given different reasons for making the police report only a few days later. In court, she said that it was because she was afraid that no one would believe her. However, in “D1”, she said it was because she was tired and wanted to report it to her workplace first. She also said when the Accused denied molesting her to the CEO, she decided to lodge the police report.[note: 51]

64     Finally, she had failed to mention in “D1” her allegations in court that the Accused had asked her to sit in front, to put her bag at the back seat and for her mobile phone to be put away.[note: 52]

The Accused’s Evidence Remained Intact After Cross Examination

65     Mr Tiwari submitted that the Accused’s evidence remained consistent throughout the case and had not given conflicting version of what transpired on that day.[note: 53] The Accused was being candid when he said he could not think of any reason why the Victim would falsely accuse him of having molested her.[note: 54]

66     The defence then relied on the case of Khoo Kwoon Hain v PP [1995] 2 SLR (R) 591 at [71] [note: 55] to submit that “it is not for the defendant to prove that the complainant had some reason to falsely accuse him. This is a fact that would be wholly within the complainant’s knowledge and nobody else’s. The Defence therefore cannot be expected to prove this.”

67     Finally, Mr Tiwari submitted that the Victim’s evidence was not of the required quality for the prosecution to discharge its burden of proving the charges beyond reasonable doubt and urged the Court to acquit the Accused of both charges.[note: 56]

My Decision

The Victim’s Evidence Was Unusually Convincing

68     Having carefully considered and scrutinised the Victim’s evidence in court, I have had no difficulty in arriving at the conclusion that her evidence was unusually convincing. In my judgment, she had given evidence in a truthful and candid manner. In the course of her evidence, I also observed that she was still very much affected by her ordeal at the hands of the Accused. First, she looked distressed even for the purpose of identifying the Accused in court.[note: 57] Second, she broke down when she had to relive the incidents in the charges while testifying in court.[note: 58] The emotions were real and telling, and it was not contrived.

There Was Strong Corroborative Evidence of the Victim’s Evidence

69     In addition, there was strong corroborative evidence of the Victim’s evidence in the present case as follows:

(a)     Immediately after the incidents when she returned home, she broke down when she saw her Sister and told her that the Accused had touched her. She repeated this to her Mother when she was awoken by her crying (see her Sister’s and Mother’s evidence at [28] and [31] above respectively);

(b)     Both her Sister and Mother observed that the Victim was crying when she was narrating to them how the Accused had touched her;

(c)     In the days after the incident, the Victim would hide in her bedroom and cover herself with blanket, and would cry when asked about the incident. She also did not dare to come home late at night and did not dare to sit at the front passenger seat (see her Sister’s and Mother’s evidence at [30] and [34] above respectively);

(d)     She had to take one to two weeks’ break from her work after the incident; and

(e)     The Manager testified that the Victim told him the following morning after the incident that the Accused did touch her when he told her to think carefully about what she said (see the Manager’s evidence at [39] above). The Manager also testified that when the Victim came back to work after the one to two weeks’ break, she was not her usual self and was only back to her bubbly self about one month later (see the Manager’s evidence at [40] above).

70     The above were strong corroborative evidence that the Victim was very much traumatised by the incident. The above also show both internal and external consistencies in the Victim’s evidence in terms of how she was affected by the Accused’s actions and how her traumatic reactions were observed by her Sister, Mother and the Manager.

The Impeachment Proceedings

71     The alleged inconsistencies between the Victim’s evidence in court and her statement to the police in D1 as highlighted by the defence during the impeachment proceedings did not affect her credibility as a witness. In my judgment, these alleged inconsistencies, though material, pertain to minute details of the facts surrounding the incident. Given that D1 was a very brief two-page statement, it would not be reasonable to expect the Victim to go into every single minute detail of the facts surrounding the incident in the statement, unlike at the trial when she was answering questions by the learned DPP on the finer details of the incident. For example, the omission of the finer detail that it was the Accused who had asked her to sit at the front seat of the car in D1 as highlighted in [17] above was not unreasonable as the main fact was that eventually the Victim did end up sitting at the front seat of the car. Similarly, the discrepancy on the duration of each of the incidents as highlighted in [22] and [25] above did not affect the Victim’s credibility as a witness as the Victim was merely asked to estimate the duration during the statement recording process. The same reasoning can be applied to the other alleged inconsistencies highlighted during the impeachment proceedings.

72     Further, it would be pertinent to note that at the time of the offence, the Victim had just turned 20 years-old a few months earlier.[note: 59] Hence, she may not have the maturity or life experience to have the awareness that she needed to give as much details as possible in her statement to the police.

73     What was important to note was that her evidence on the general manner in which the Accused had outraged her modesty was consistent in both her evidence in court and D1. In fact, I would pause here to note that at the trial, more than two and a half years after the incident and upon recalling the incident for the purpose of the trial, the Victim had very fairly testified that she could only recall that the Accused had touched her vagina area underneath her panty at least once, as opposed to twice as stated in D1. This difference in the recollection on the number of times the Accused had touched her vagina was not surprising given that the Victim was tipsy at the time of the offence and her eyes were closed, and she was recalling details of a traumatic event which took place more than two and a half years ago. Further, the duration of each incident was very brief, only a few seconds.

Addressing the Defence’s Closing Submissions

74     On the defence’s submission reproduced at [57] and [58] above that the Victim’s account of what happened from time she entered the car was doubtful, there was nothing unusual or unnatural about the fact that the Victim had initially wanted to sit at the back of the car. This fact was at best neutral. Similarly, there was nothing surprising or unusual that eventually, the Victim acceded to the Accused’s request for her sit at the front passenger seat, put her bag at the back of the car and handed over her mobile phone. After all, the Accused was giving her a lift home and it would not be surprising if the Victim did not want to come across as being a difficult person by refusing the Accused’s requests on such minor matters.

75     It was the defence’s submissions reproduced at [59] above that if it was true that the Victim was shocked by the Accused’s unexpected touch, her natural reaction would have been to instinctively open her eyes to see what was happening. In my judgment, the Victim’s explanation that she did not immediately react after the Accused had touched her the first time or even the second time was a reasonable one. First, it was not surprising for a young girl who was not even 21 years-old yet to freeze, and not knowing what to do when she was suddenly being touched inappropriately by a senior colleague when they were alone in his car. Second, she had every reason to fear what worse things he might do to her if she were to react, since they were alone in the car driven by him in the middle of the night. Third, there can no prescribed manner as to how a female would or should react when she was being touched inappropriately without her consent.

76     On the question of whether the Victim was merely tipsy or drunk as highlighted in [60] above, as pointed out by the prosecution in its submissions highlighted in [48] above, the CCTV footage clearly shows that the Victim was able to walk from the Restaurant on her own unaided and she also had no difficulty telling the Accused her address. She was able to message her Sister to tell her to help open the house door as she could not find her house key. She was also able to alert the Accused when she felt like vomiting and asked the Accused if he had a plastic bag. In any event, the word “drunk” is not a term of art and it really depends on one’s interpretation or understanding of the word. As highlighted in [27] above, the Victim explained that to her, being tipsy meant that one was a bit high but could still walk and talk, while being drunk meant that one cannot walk and talk, and cannot remember anything.

77     On the other alleged inconsistencies in the Victim’s evidence highlighted by the defence as reproduced in [61] to [64] above, I have already explained in [71] to [73] above why I held that they did not affect her credibility as a witness.

The Accused’s Bare Denial Failed To Raise a Reasonable Doubt

78     As stated in [43] above, the Accused’s defence was one of bare denial. It is of course the correct position in law that it is not for an accused to prove that the complainant had some reason to falsely accuse him of molest. However, in the event that a complainant is able to put forth a credible case that the accused did molest her as alleged, and the accused is not suggesting that the complainant has any motive to falsely accuse him of the molest, then there is nothing to displace the inference that the accused has indeed committed the offence.

79     It is pertinent to note that Mr Tiwari did not put to the Victim that her distress and crying, as observed by her Sister and Mother immediately when she reached home, was false or staged. The inference to be drawn, therefore, was that her distress and crying were genuine, and arose because she was molested by the Accused.

80     Further, contrary to defence’s submission[note: 60] that the Accused had denied in his evidence of asking the Victim to sit at the front passenger seat when she had initially wanted to sit at the back seat, what the Accused had said in cross-examination was that he cannot remember if he did ask the Victim to sit in front when she had initially wanted to sit at the back, and that this could have happened.[note: 61] The Accused also agreed during cross-examination that after the Victim had vomited, he thought that she fell asleep because she was drunk and that she was “not conscious”.[note: 62] Hence, given the Victim’s unusually convincing evidence that the Accused had molested her in the manner as stated in the charges, the irresistible inference was that the Accused decided to take advantage of the Victim’s state of intoxication by first, asking her to sit at the front passenger seat when she had initially wanted to sit at the back seat of the car. Second, after the Victim had vomited, thinking that she was asleep because she was drunk, and not conscious, the Accused decided to molest the Victim in the manner as described by her, as the Accused thought that she would not be aware of what he had done to her.

81     In the circumstances, I did not find the Accused’s bare denial defence credible, and I rejected his defence.

82     Finally, I would add that I did not give any weight to the Mother’s evidence that the CEO of the Restaurant had told her that although the Accused had denied molesting the Victim, he was prepared to apologise to the Victim if the matter was not reported to the police. This was because the CEO was not called as a witness at the trial as he had passed away before the trial. This evidence was therefore hearsay evidence. Further, the Accused had denied saying this to the CEO.

Conclusion

83     Having carefully considered the Accused’s bare denial defence, when weighed against the Victim’s unusually convincing evidence and the strong corroborative evidence by the other prosecution witnesses, I found that the Accused had failed to raise a reasonable doubt in the prosecution’s case.

84     In conclusion, I was satisfied that the prosecution had proved both the charges against the Accused beyond reasonable doubt. I found the Accused guilty and convicted the Accused accordingly.

Antecedents

85     The Accused was a first-time offender.

Prosecution’s Submissions on Sentence

86     In submitting for a sentence of 15 to 18 months’ imprisonment and two to three strokes of the cane to be imposed on the Accused for each charge, the prosecution relied on the sentencing framework laid down in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”) and submitted that the present case fell between the high end of Band 2 and the low end of Band 3 of the sentencing framework, which states as follows:[note: 63]

Band

Description

Sentencing Range

1

This includes cases that do not present any, or at most one, of the offence-specific factors, and typically involves cases that involve a fleeting touch or no skin-to-skin contact, and no intrusion into the victim’s private parts.

Less than five months’ imprisonment

2

This includes cases where two or more offence-specific factors present themselves. The lower end of the band involves cases where the private parts of the victim are intruded, but there is no skin-to-skin contact. The higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts. Would also involve cases where there was the use of deception.

Five to 15 months’ imprisonment

3

This includes cases where numerous offence-specific factors present themselves, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim

15 to 24 months’ imprisonment



87     On the offence-specific factors, the prosecution submitted that there were the following aggravating factors present in this case, namely:[note: 64]

(i)     There was high degree of sexual exploitation. The Victim’s private parts were intruded upon in both charges. For the first charge, the Accused had squeezed her breast on two occasions. For the second charge, he stroked her vagina for a few seconds;

(ii)     The circumstances of the offending: the Accused took advantage of his junior colleague in the enclosed space of his car after having been entrusted to send the Victim home safely;

(iii)     Harm caused to the Victim: the Victim was so affected by the incidents that she would hide for days after the incident and covered herself with blanket, cried whenever she was asked about the incident. She also dared not come home late at night or sit at the front passenger seat. She also had to take one or two weeks off from work and was not her usual self at work, for about a month.

88     Given that the Accused had intruded upon the Victim’s private parts, the prosecution submitted for two to three strokes of the cane to be imposed on each charge, relying on Kunasekaran (at [50]).[note: 65]

89     As there were no offender-specific factors relevant to the present case, the prosecution submitted that there was no need to adjust the starting sentences. The prosecution further submitted that both sentences should run concurrently, for a global sentence of 15 to 18 months’ imprisonment and four to six strokes of the cane to be imposed.[note: 66]

Defence’s Mitigation and Submissions on Sentence

90     Mr Tiwari submitted, on the other hand, that the present case fell within the lower end of Band 2 of the sentencing framework in Kunasekaran for the following reasons:[note: 67]

(a)     Apart from skin-to-skin contact with the private parts of the Victim, there were no other aggravating circumstances;

(b)     The Victim was not incapacitated by drinks, but was merely afraid to resist or react;

(c)     The Accused was asked to drive the Victim home not because of his seniority at work but because he did not consume any alcohol that night; and

(d)     There was no assessment by psychiatrist or psychologist on the Victim on how she was affected by the incident.

91     Mr Tiwari also pointed out the Accused had an otherwise unblemished record and submitted for a sentence of six months’ imprisonment for both charges and for the sentences to run concurrently.[note: 68]

My Decision on Sentencing

92     In sentencing the Accused, I was guided by the sentencing framework in Kunasekaran. As there was skin-to-skin contact with the Victim’s private parts in both charges, I was not able to agree with Mr Tiwari’s submission that this would place the Accused’s case in the lower end of Band 2 in the sentencing framework. Band 2 of the framework, as reproduced in [86] above, clearly states that the “higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts”. Hence, I would place the Accused’s offences at the higher end of Band 2 in the framework. Caning would therefore also be appropriate.

93     I further agreed with the other offence-specific aggravating factors as submitted by the prosecution and reproduced in [87](ii) and (iii) above. Although I agreed with Mr Tiwari that the Accused was asked to send the Victim home in his car not because of his seniority at work to the Victim but because he did not consume any alcohol that night, the fact remains that there was a betrayal of trust in the present case. As a fellow colleague, the Victim trusted the Accused to send her home safely and not to molest her. Had the Accused been a total stranger, the Victim may not have agreed to let him drive her home.

94     As I have mentioned in [69] and [70] above, I was satisfied that the Victim was very much traumatised by what the Accused had done to her. The harm caused to her was significant. There was no requirement that there must be some medical evidence from a psychiatrist or psychologist, contrary to what Mr Tiwari had submitted[note: 69], that trauma or harm was caused to a victim before the court can take cognisance of the same, especially in a case where the victim had in fact testified at the trial on how she was affected by her ordeal, as in the present case. Hence, the trauma and harm caused to the Victim was another aggravating factor that I would take into consideration in sentencing.

95     On the other hand, I took into consideration that the touches on the Victim’s private parts were not prolonged in both charges and lasted only for a few seconds. Hence, I would place the Accused’s case just below the top end of Band 2 in the sentencing framework.

96     As for offender-specific factors, since the Accused was a first-time offender and had been convicted after trial, I agreed with the prosecution that there was no need to adjust the starting sentence.

97     In the circumstances, having considered all relevant sentencing factors as discussed above, I sentenced the Accused to ten months’ imprisonment and one stroke of the cane for the first charge, as the Accused had touched the Victim’s breast, skin-to-skin, not once but twice.

98     For the second charge, the Accused could have stopped after the commission of the offence in the first charge. However, he did not and went on to commit the offence in the second charge by touching the vagina of the Victim at least once, also skin-to-skin. Hence, I found it necessary to reflect this additional aggravating factor in the second charge and I sentenced the Accused to 12 months’ imprisonment, with two strokes of the cane.

99     As both offences took place in quick succession in the same transaction, I ordered both sentences to run concurrently, making it a global sentence of 12 months’ imprisonment and three strokes of the cane.

100    Dissatisfied with my judgment above, the Accused has appealed against the same. The Accused is currently released on bail pending this appeal.

[note: 1]P1

[note: 2]P8

[note: 3]P9

[note: 4]P10

[note: 5]P11

[note: 6]P3

[note: 7]P6 to P12

[note: 8]P2. A list of exhibits referred to in the ASOF was also enclosed as Annex A to the ASOF.

[note: 9]PW2.

[note: 10]P10.

[note: 11]P11.

[note: 12]PW1.

[note: 13]PW 3.

[note: 14]P5 (the screenshots of the relevant messages).

[note: 15]Notes of Evidence (NE), Day 1, page 49 ln 7 to 13.

[note: 16]PW4 (“Mother”)

[note: 17]P1

[note: 18]NE, Day 1, page 61 ln 25 to 29.

[note: 19]First underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 20]Second underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 21]Third underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 22]Fourth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 23]Fifth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 24]Sixth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 25]Seventh underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 26]Eighth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 27]Nineth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 28]Tenth underlined portion of D1 in the first paragraph of D1 on the second page.

[note: 29]NE, Day 2, page 48 ln 27 to page 49 ln 21.

[note: 30]PW 3.

[note: 31]NE, Day 1, page 13, ln 2 to 20.

[note: 32]PCS at Section B.

[note: 33]PCS at [27].

[note: 34]PCS at [28] to [31]

[note: 35]P4.

[note: 36]PCS at [33] to [42], [45] and [48].

[note: 37]D1, on the first page, bottom four lines.

[note: 38]PCS at [43] and [44].

[note: 39]PCS at [47].

[note: 40]PCS at [50] to [56].

[note: 41]PCS at [58] to [65].

[note: 42]PCS at [66] and [67].

[note: 43]PCS at [68].

[note: 44]DCS at [5].

[note: 45]DCS at [7] and [8].

[note: 46]DCS at [9] to [14].

[note: 47]DCS at [15] to [20].

[note: 48]DCS at [22] to 24].

[note: 49]DCS at [25] and [26].

[note: 50]DCS at [27].

[note: 51]DCS at [28] and [29].

[note: 52]DCS at [30].

[note: 53]DCS at [31] and [32].

[note: 54]DCS at [33].

[note: 55]DCS at Tab B.

[note: 56]DCS at [36] and [37].

[note: 57]NE, Day 1, page 28 ln 20 to page 29 ln 15.

[note: 58]NE, Day 1, page 49 ln 7 to 13, and page 61 ln 25 to 29.

[note: 59]The incident was on 19 August 2021 and the Victim’s date of birth was in May 2001 (see the charges)

[note: 60]DCS at [7].

[note: 61]NE, Day 4, page 5 ln 12 to 22.

[note: 62]NE, Day 4, page 12 ln 2 to 23.

[note: 63]Prosecution’s Submissions on Sentence(“PSS”) at [2] to [4].

[note: 64]PSS at [5] to [7].

[note: 65]PSS at [8].

[note: 66]PSS at [9] to [10].

[note: 67]The Accused’s Mitigation Plea (“D2”) at [2] to [6].

[note: 68]D2 at [7] to [9].

[note: 69]D2 at [6]

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Offences – Drink Driving","Criminal Procedure and Sentencing – Disqualification – Special Reasons"],"date":"2024-10-22","court":"District Court","case-number":"District Arrest Case No. 903904-2024","title":"Public Prosecutor v Wong Chee Kan","citation":"[2024] SGDC 274","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32371-SSP.xml","counsel":["Lim Yee Shuen (Criminal Investigation Department) for the Prosecution","Farhan Tyebally (AsiaLegal LLC) for the Defence."],"timestamp":"2024-10-28T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Wong Chee Kan

Public Prosecutor v Wong Chee Kan
[2024] SGDC 274

Case Number:District Arrest Case No. 903904-2024
Decision Date:22 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Lim Yee Shuen (Criminal Investigation Department) for the Prosecution; Farhan Tyebally (AsiaLegal LLC) for the Defence.
Parties: Public Prosecutor — Wong Chee Kan

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Offences – Drink Driving

Criminal Procedure and Sentencing – Disqualification – Special Reasons

22 October 2024

District Judge Shawn Ho:

Introduction

1       Mr Wong Chee Kan pleaded guilty to drink driving.

2       After drinking gin, he engaged a valet driver. On his way home, Mr Wong got into a dispute with the valet driver, who stopped along Eastwood Drive as he decided against continuing the journey.

3       Mr Wong drove his car to head back home along Upper Changi Road East as he “felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him” during their dispute.[note: 1]

4       While driving, Mr Wong lost his way. He approached the valet driver for assistance. A dispute broke out again between them. Mr Wong called the police.

5       The issue was whether there were special reasons.

6       All things considered, there were no special reasons. I set out my reasons.

7       Mr Wong was fined $2,000 in default 5 days’ imprisonment and disqualified from driving for 24 months. There was no appeal.

Charge

8       Mr Wong pleaded guilty to the following charge:

You,

NAME: WONG CHEE KAN (WANG ZHIQIN)

SEX/ AGE: MALE/ 49 YEARS OLD

NATIONALITY: SINGAPOREAN

are charged that you, on the 4th day of November 2023 at or before 4.01 a.m., along Eastwood Drive, Singapore, when driving a motor car, SKX1948C, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 51 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath and you have thereby committed an offence under Section 67(1)(b) and punishable under Section 67(1) read with Section 67(2)(a) of the Road Traffic Act 1961.[note: 2]

Statement of facts

9       The complainant is one Sergeant Quek May May, a Police Officer who is attached to Bedok Neighbourhood Police Centre.[note: 3]

10     The Accused is one Wong Chee Kan (Wang Zhiqin), Male, 48 years old, Chinese. He was the driver of the motor car, SKX1948C, at the time of incident.[note: 4]

11     The involved party is one Koh Tong Chuan, Male, 36 years old, Chinese. He was the valet driver engaged by the Accused at the time of incident.[note: 5]

12     On the 4th day of November 2023 at or about 4.01 a.m., the complainant attended to a reported police incident along Eastwood Drive. The complainant then interviewed the Accused who admitted to driving his motor car, SKX1948C, along Eastwood Drive.[note: 6]

13     The complainant communicated and observed that the Accused reeked of alcohol. A breathalyzer test was conducted on the Accused and the result showed “Fail”. The Accused was then arrested for the offence of driving under the influence of alcohol and he was escorted to Bedok Police Division for a Breath Analysing Device (BAD) Test.[note: 7]

14     The BAD test was conducted by Police Officer Taufiq on 4 November 2023 at about 5.26 a.m. at Bedok Police Division. The breath test revealed that the proportion of alcohol in the Accused’s breath was 51 microgrammes of alcohol in every 100 millilitres of breath. The prescribed limit is 35 microgrammes of alcohol per 100 millilitres of breath.[note: 8]

15     Investigations revealed that on the 4th day of November 2023 at about 12.00am, the Accused was at a bistro along the vicinity of Suntec City together with his friends. There, the Accused consumed about 2 to 3 glasses of gin. The Accused started drinking from 12.00am and stopped drinking later on the same day at about 2.00am. After drinking, the Accused had engaged a valet service with the involved party to drive his car and send him and one of his friends back to their places. While on his way home, the Accused got into a dispute with the involved party. The involved party then stopped along Eastwood Drive as he decided against continuing to send the Accused back home. As such, the Accused proceeded to drive his car to head back home to his place along Upper Changi Road East. The Accused then lost his way driving along Eastwood Drive and subsequently approached the involved party for assistance. A dispute then broke out again, and the complainant then attended to the case.[note: 9]

16     By virtue of the foregoing, the Accused had committed the offence of drink driving (exceeding the prescribed limit) under s 67(1)(b) and punishable under s 67(1) read with s 67(2)(a) of the Road Traffic Act 1961.[note: 10]

Prescribed punishment

17     The prescribed punishment for s 67(1) of the Road Traffic Act 1961 (“the Act”) (first offender for drink driving) is:

(a)     a fine of not less than $2,000 and not more than $10,000 or imprisonment for a term not exceeding 12 months or to both, and

(b)     a driving disqualification for a period of not less than 2 years.

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751])

18     The two components of the overall sentence generally are not to be regarded as mutually compensatory. Hence, an increase in the fine or custodial sentence should not be taken to mandate the imposition of a reduced disqualification period than would otherwise have been ordered: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

19     While the different types of punishment are not fungible, there is a positive correlation between the length of the imprisonment term and/or quantum of the fine imposed and the period of the disqualification ordered. This direct relationship arises from the overlapping considerations of harm and culpability underlying the determination of the length of imprisonment or quantum of fine, and the length of the disqualification period: Chen Song v Public Prosecutor [2024] SGHC 129 at [141].

20     A disqualification order melds three sentencing objectives: punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

21     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

22     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle: Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60].

Prosecution’s submissions on sentence

23     The Prosecution asked for a fine of $2,500 and driving disqualification of 24 months.

24     There were no special reasons.

Mitigation plea

25     The Defence asked for a fine of $2,500 and driving disqualification of less than 24 months.

26     There were special reasons.

Sentencing

The Law

(1)   Legislative history of s 67 of the Road Traffic Act

27     The offence under s 67(1)(b) of the Act was enacted on 10 May 1996, following the passing of the Road Traffic (Amendment) Act 1996 (No. 11 of 1996) (“the 1996 Amendment Act”).

28     The 1996 Amendment Act effected two changes that are relevant for present purposes. First, it repealed s 70 of the Road Traffic Act (Cap 276, 1994 Rev Ed). Second, it re-enacted s 67 of the Act.

(See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

29     The present iteration of the offence under s 67 of the Act was enacted on 1 November 2019, following the passing of the Road Traffic (Amendment) Act 2019 (Act 27 of 2019) (the “2019 Amendment Act”). The reforms introduced through the 2019 Amendment Act were aimed at providing stronger deterrence against irresponsible driving and to tighten the regulatory regime against irresponsible driving: Singapore Parliamentary Debates, Official Report (8 July 2019) vol 94 (Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993 at [26]).

30     Specifically, in relation to the offence of drink driving, the Second Minister for Home Affairs, Mrs Josephine Teo explained as follows:

… Drivers who are drunk or drug-impaired show a blatant disregard for the safety of other road users. … Currently, such motorists typically face the same maximum penalties as other motorists who cause accidents. The judge may take into consideration that the offender was driving under influence during the sentencing itself. But it would be clearer to have our intentions codified in law. In fact, our intention is for offenders driving under influence to face stiffer penalties to signal the aggravated seriousness of their actions.

…

… during the public engagement process, respondents felt that even a standalone driving under influence offence where no accident is caused, should attract higher penalties to better reflect its gravity.

We agree with this view. The consumption of alcohol or drugs already makes a motorist a danger to other road users. Section 67 in Clause 17 of the Bill will raise the penalties to about double the current levels. We will also raise the existing minimum DQ period to two years for first-time driving under influence offenders and five years for second-time driving under influence offenders. A lifelong disqualification will be imposed on third-time driving under influence offenders. [emphasis added]

(2)   Driving disqualification order

31     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

32     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

33     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

34     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Road Traffic Act.

Decision on sentence

35     Drink driving is irresponsible. A motorcar in the hands of a drunk driver is a potentially devastating weapon writ large – and needlessly so: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

36     For drink driving, the applicable case is Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993.

Framework in Rafael Voltaire Alzate v Public Prosecutor

37     The sentencing ranges are set out in the Rafael Voltaire Alzate at [30]-[31]:

Level of alcohol (µg per 100ml of breath)

Range of fines

Range of disqualification

36-54

$2,000-$4,000

24-30 months

55-69

$4,000-$6,000

30-36 months

70-89

$6,000-$8,000

36-48 months

≥90

$8,000-$10,000

48-60 months



38     This framework only applies where there is no harm to person or property (Rafael Voltaire Alzate at [32]).

39     This framework provides only neutral starting points based on the relative seriousness of the offence and considering only the level of alcohol in the offender’s body. Regard should still be had to any aggravating or mitigating circumstances (see Edwin s/o Suse Nathen at [22]), and the former, if they exist, could result in the custodial threshold being crossed (Rafael Voltaire Alzate at [33]).

40     Here, the applicable sentencing range is a fine of $2,000 to $4,000 and a driving disqualification of 24 to 30 months.

41      Antecedents. Mr Wong’s driving record was not unblemished.

42     He had driving-related compounded offences for speeding, parking and not conforming to the red light signal. An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

43     Given that they are fairly dated, I placed little weight on his compounded offences.

44      Guilty plea. I gave due weight to Mr Wong’s guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

45     That said, the evidence against Mr Wong was overwhelming (e.g. Breath Analysing Device Test result) and lends itself to the conclusion that he had little choice but to plead guilty: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 at [71] and [73], and Public Prosecutor v BDB [2017] SGCA 69 at [74].

46      Cooperation with the authorities. I gave due weight to Mr Wong’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

No special reasons

(1)   The law

47     Under s 3(1) of the Act, an offender would be disqualified from driving unless he shows “special reasons”.

48     In this connection, the two-stage framework for “special reasons” is as follows:

(a)     First Stage: Show special reasons, viz. reasons relating to the facts or circumstances of an offence and not to the offender herself; and

(b)     Second Stage: Even if special reasons are established, the court will consider whether the discretion not to disqualify must be exercised in favour of the offender.

49     Under the two-stage framework, the first stage is offence-specific (not offender-specific). When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the court’s satisfaction: Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 at [5].

50     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the court’s discretion not to disqualify can only be made in very exceptional circumstances: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [25] (see also Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [9]-[11]).

(i)   First Stage

51     What are “special reasons” not to impose a driving disqualification? The special reasons have to be reasons relating to the facts or circumstances of an offence and not to the offender himself – this would be the clearest means of giving effect to Parliament’s intention: M V Balakrishnan v Public Prosecutor [1998] 2 SLR(R) 846 at [9], Muhammad Faizal bin Rahim v Public Prosecutor [2012] 1 SLR 116 at [41] and Rafael Voltaire Alzate at [38].

52     In other words, a special reason is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment: Whittall v Kirby [1947] 1 KB 194 at 201, as endorsed by Muhammad Faizal bin Rahim at [30].

53     Offender-specific factors, such as the fact that the defendant is of a good character or has a good driving record, cannot be accepted as special reasons: Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (30th Ed, 2021, General Editor: Kevin McCormac) at [21-10]. Circumstances peculiar to the offender do not go towards reducing his moral culpability; they are essentially extrinsic facts about the offender which are unrelated to the offence but are produced to elicit sympathy from the court. These circumstances are morally distinguishable from circumstances peculiar to the offence: Muhammad Faizal bin Rahim at [43].

54     Even if an offender requires his driving licence for his livelihood, this would not constitute a special reason (see also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751]).

55     This is because in the Malaysian Criminal Appeal Court case of Public Prosecutor v Hiew Chin Fong [1988] 1 MLJ 467 – which was endorsed in Chua Chye Tiong v Public Prosecutor [2004] 1 SLR(R) 22 at [61] and [62] – a 12-month disqualification period was imposed on the offender despite the fact that his livelihood depended on him having a driving licence.

56     The Criminal Appeal Court in Public Prosecutor v Hiew Chin Fong laid down several statements of law on what should not be considered special reasons:

(a)     Financial hardship to the offender;

(b)     The offender knew no other means of earning his livelihood;

(c)     That the effect of the disqualification must necessarily and consequently deprive the offender of his livelihood or occupation; and

(d)     That the offender was a poor man and would have difficulty to get to his work.

57     Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive, and that he had explored every reasonable alternative before driving: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [17], affirmed in Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [13].

58     When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the court’s satisfaction: Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 at [5]. The onus lies on an accused to raise special reasons for the court’s consideration, if such reasons exist: Chue Woon Wai v Public Prosecutor [1996] 1 SLR(R) 725 at [13], Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [12] and Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [12].

(See also Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (30th Ed, 2021, General Editor: Kevin McCormac) at [21-62])

59      Cheong Wai Keong v Public Prosecutor [2005] SGHC 126 stands for the proposition that the shortness of distance travelled cannot in itself be a “special reason” (Rafael Voltaire Alzate at [41]). A court should be able to have regard to the distance travelled as part of its overall analysis (Rafael Voltaire Alzate at [42]).

60     For completeness, the High Court in Lee Shin Nan v Public Prosecutor [2023] SGHC 354 at [79] stated that the unifying principle to be distilled with respect to s 67(2A) of the Act is that special reasons will generally be found only if the court is satisfied that the offender drove in circumstances that reasonably suggest:

(a)     it was necessary to do so in order to avoid other likely and serious harm or danger; and

(b)     there was no reasonable alternative way to achieve this end.

(ii)   Second Stage

61     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified. In this regard, there must be a separate process of considering whether the discretion must be exercised in favour of the offender: Sivakumar s/o Rajoo at [22]. The limited discretion not to disqualify can only be made in very exceptional circumstances, having regard to the special circumstances as well as to the whole of the circumstances surrounding the commission of the offence, including the manner in which the offender drove and the alcohol content in the offender’s body: Sivakumar s/o Rajoo at [25].

62     Pulling the various strands together, the test for special reasons is stringent and is only satisfied in very exceptional circumstances (see also Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [9]-[11]).

63     The Act is construed strictly in order to preserve its policy of protecting road users: Chua Chye Tiong v Public Prosecutor [2004] 1 SLR (R) 22 at [53]. A less restrictive approach would negate the legislative stipulation of mandatory disqualification and defeat its underlying objectives: Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [8]. Widening the special reasons exception would encourage frivolous defences: Muhammad Faizal bin Rahim at [41].

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3702], [3751] and [3752])

(2)   Application to the facts

64     The special reasons have to be reasons relating to the facts or circumstances of an offence and not to the offender himself. In other words, a special reason is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment.

65     In the present case, the Defence argued that:

(a)     As a real estate agent, Mr Wong needed his driving licence for his work, including travelling to various properties to conduct viewings.[note: 11]

(b)     Additionally, networking and building relationships with various individuals are integral to his real estate agent role, often necessitating meetings over drinks with friends and/or prospective clients.[note: 12]

(c)     After drinking alcohol, Mr Wong would hire a valet driver.[note: 13] In 2023, Mr Wong spent an estimated $5,927 on valet services from M/s DUH Drive U Home Valet.[note: 14]

(d)     On 4 November 2023, Mr Wong engaged a valet driver.[note: 15] Mr Wong provided his home address in Upper Changi Road East.[note: 16] However, the valet driver drove to an incorrect location at Eastwood Drive.[note: 17] Mr Wong and the valet driver had an argument.[note: 18]

(e)     The valet driver's aggressive behaviour escalated to the point that Mr Wong felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him.[note: 19]

(f)     Mr Wong drove off.[note: 20] He drove within a landed enclave at about 4 a.m.[note: 21] He had only driven for approximately 480m.[note: 22]

(g)     After parking his car, he pleaded with the valet driver to send him home.[note: 23] This request was met with increased aggression — the valet driver not only verbally berated Mr Wong but also slapped him across the face.[note: 24]

(h)     Mr Wong quickly distanced himself from the valet driver and called the police to report the assault/ battery.[note: 25]

(i)     The police arrived at the scene. Mr Wong informed them of the assault by the valet driver. The valet driver told the police that Mr Wong had driven his vehicle while intoxicated.[note: 26]

66     Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive, and that he had explored every reasonable alternative before driving.

67     Here, the Defence claimed that Mr Wong had driven away as he had “felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him” during their argument, which amounted to a special reason.[note: 27]

68     After driving away, Mr Wong had approached the valet driver for assistance after losing his way,[note: 28] which militated against Mr Wong feeling physically threatened by the valet driver in the first place.

69     Apart from driving, there were other alternatives open to Mr Wong — including distancing himself from the valet driver on foot, locking the car doors, and calling the police. In fact, after being “verbally berated (and) also slapped … across the face”,[note: 29] Mr Wong “quickly distanced himself from the valet driver and called the police to report the assault / battery”.[note: 30]

70     While Mr Wong had argued that his driving licence was required for his livelihood as a real estate agent, this would not constitute a special reason: Public Prosecutor v Hiew Chin Fong, which was endorsed in Chua Chye Tiong v Public Prosecutor at [61] and [62].

71     Insofar as the Defence was arguing that Mr Wong had driven a short distance, even taking the Defence’s case at its highest, a distance of 480 metres — almost ten Olympic-sized swimming pools — was not short. Moreover, Mr Wong had intended to drive home along Upper Changi Road East from Eastwood Drive.[note: 31] In other words, if he had not been lost,[note: 32] Mr Wong would have driven a distance of about 2.6 km.

72     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the court’s discretion not to disqualify can only be made in very exceptional circumstances. Here, Mr Wong’s alcohol level of 51 microgrammes of alcohol in every 100 millilitres of breath[note: 33] was at the higher end of the relevant band in Rafael Voltaire Alzate.

Conclusion

73     For the above reasons, Mr Wong was fined $2,000 in default 5 days’ imprisonment and disqualified from driving for 24 months.

74     There were no special reasons.

75     I am grateful for the hard work and submissions of both sides.

[note: 1]Mitigation Plea at [10] and [13].

[note: 2]DAC 903904-2024.

[note: 3]SOF at [1].

[note: 4]SOF at [2].

[note: 5]SOF at [3].

[note: 6]SOF at [4].

[note: 7]SOF at [5].

[note: 8]SOF at [6].

[note: 9]SOF at [7].

[note: 10]SOF at [8].

[note: 11]Mitigation Plea at [5].

[note: 12]Mitigation Plea at [6].

[note: 13]Mitigation Plea at [7]-[8].

[note: 14]Mitigation Plea at [9].

[note: 15]Mitigation Plea at [11].

[note: 16]Mitigation Plea at [11].

[note: 17]Mitigation Plea at [13].

[note: 18]Mitigation Plea at [13].

[note: 19]Mitigation Plea at [13] and [25].

[note: 20]Mitigation Plea at [15].

[note: 21]Mitigation Plea at [24].

[note: 22]Mitigation Plea at [15], [21] and [25].

[note: 23]Mitigation Plea at [16].

[note: 24]Mitigation Plea at [16].

[note: 25]Mitigation Plea at [17].

[note: 26]Mitigation Plea at [18].

[note: 27]Mitigation Plea at [10] and [13].

[note: 28]SOF at [7].

[note: 29]Mitigation Plea at [16].

[note: 30]Mitigation Plea at [17].

[note: 31]SOF at [7].

[note: 32]SOF at [7].

[note: 33]SOF at [6].

"},{"tags":["Criminal Law – Offences – Abetment of suicide","Criminal Law – Offences – Obstructing the course of justice"],"date":"2024-10-18","court":"District Court","case-number":"District Arrest Case No. 921296 of 2021 & Ors","title":"Public Prosecutor v Cher Sheue Pin Alverna","citation":"[2024] SGDC 235","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32349-SSP.xml","counsel":["Marcus Foo and Cheronne Lim (Attorney-General's Chambers) for the Prosecution","Peter Ong and Marcus Lim (Peter Ong Law Corporation) for the Defence."],"timestamp":"2024-10-25T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Cher Sheue Pin Alverna

Public Prosecutor v Cher Sheue Pin Alverna
[2024] SGDC 235

Case Number:District Arrest Case No. 921296 of 2021 & Ors
Decision Date:18 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Marcus Foo and Cheronne Lim (Attorney-General's Chambers) for the Prosecution; Peter Ong and Marcus Lim (Peter Ong Law Corporation) for the Defence.
Parties: Public Prosecutor — Cher Sheue Pin Alverna

Criminal Law – Offences – Abetment of suicide

Criminal Law – Offences – Obstructing the course of justice

18 October 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mdm Cher Sheue Pin Alverna, had been convicted after trial of two charges of abetment by intentionally aiding suicide and obstructing the course of justice.

2       This judgment deals with the sentencing submissions and mitigation plea.

3       All things considered, the Accused was sentenced to 74 months’ imprisonment.

4       I set out my reasons.

The parties’ position on sentence

Prosecution’s submissions on sentence

5       The Prosecution sought the following sentence:[note: 1]

DAC No.

Sentence

Status

DAC 921296 2021

s 306 Penal Code

Upper half of the sentencing range for s 306

Consecutive

DAC 920605 2021

s 204A Penal Code

1 to 1.5 years

Consecutive



6       For the s 306 offence, the Accused’s culpability was not low:

(a)     First, while acts of intentional aiding can take many forms, the Accused’s culpability can be seen by her actions of handling the Tank and IKEA bag at the material time. This in turn displayed intimate participation in his suicide efforts.[note: 2]

(b)     Second, the Accused’s culpability must be understood against the backdrop of her knowledge, role, and interactions with Mr Wee leading up to 16 May 2020. She was no passive onlooker insofar as Mr Wee’s suicide was concerned:

(i)       Prior to 16 May 2020, the Accused was significantly involved in his suicide plans to the point that she participated in a “trial run”. She told him to “die handsome”.[note: 3]

(ii)       The Accused’s actions of enlisting a doctor so that Mr Wee’s death could appear natural would also have encouraged him to take further steps in pursuing his suicide plans (ASOF at [30]).[note: 4]

(iii)       The Accused’s willingness and agreement to dispose of evidence of suicide on Mr Wee’s behalf goaded him to press on with his suicide plans.[note: 5]

(iv)       The Accused agreed to oversee Mr Wee’s funeral arrangements (ASOF at [27]-[29]). She even wrote a eulogy for Mr Wee (ASOF at [35]).[note: 6]

(c)     Third, when Mr Wee told the Accused that he was “commencing” his suicide plan on 16 May 2020, the Accused did not dissuade him. Instead, the Accused replied that she would see him “in another world”, i.e. “the afterlife after he passes away” (see also the ASOF at [42]).[note: 7]

(d)     Fourth, it was not the Accused’s case – given the defence of a bare denial that she ran at trial – that she assisted Mr Wee’s suicide out of some altruistic motivations or compassion that can be said to attenuate her culpability in any way. The Defence did not lead any evidence or alternative case in this regard.[note: 8]

7       In Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393, the offender was convicted after trial of an offence under s 306 Penal Code (Cap 185, 1985 Rev Ed) and sentenced to 8 years’ imprisonment.[note: 9]

8       There was some limitation in relying on Lim Tee Hian as a precedent. The iteration of the offence that the offender in Lim Tee Hian was convicted of was different from the present provision. Unlike its predecessor, the present provision also contemplated a situation where the individual abetted attempts suicide.[note: 10]

9       The upshot of this was that greater — if not overriding — significance would have been placed on an offender’s culpability when sentencing under the previous iteration of the offence under s 306 of the Penal Code. Indeed, that overarching emphasis on the offender’s culpability can be seen from the High Court’s grounds of decision in Lim Tee Hian. That may not be warranted to the same extent, or necessarily appropriate, in the present situation, where the consequences flowing from an abettor’s actions also acquires prominence in the sentencing equation.[note: 11]

10     For the s 204A offence, applying the Court of Appeal case of Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847:

(a)     The predicate offence is extremely serious – this concerns the Accused’s abetment and involvement in Mr Wee’s suicide. There was a degree of self-interest insofar as the Accused was also attempting to conceal her criminal liability. The maximum punishment of 10 years’ imprisonment underscored the severity of the offence.[note: 12]

(b)     The degree of persistence, premeditation, and sophistication was demonstrated by the following:[note: 13]

(i)       Prior to 16 May 2020, there were significant discussions between the Accused and Mr Wee as to how to get rid of the evidence.[note: 14]

(ii)       From the text messages, the Accused made material suggestions to improve Mr Wee’s plans, such as the fact that she should be the first one at the scene to find his body. That proactiveness underscored her complicity.[note: 15]

(iii)       The Accused undertook considerable efforts to bring these plans about. She instructed a third party, Mr Cheo,[note: 16] to remove evidence (the Tank). The Accused herself disposed of the IKEA bag, which was why it could not be retrieved by investigation authorities. The Accused also lied to SSSgt Munira[note: 17] to conceal the Mr Wee’s suicide.[note: 18]

Mitigation plea

11     The Defence sought a global sentence of not more than 1 year’s imprisonment because:[note: 19]

(a)     The Accused is a first-time offender with no previous antecedent.

(b)     She is of a good character.

(c)     A criminal record has tainted her career, and a custodial sentence will destroy her career and family.

(d)     She is genuinely remorseful.

(e)     She has fully cooperated with the authorities.

(f)     There is no likelihood of recidivism in the present case.

(g)     Mr Wee in fact had planned his own suicide.

12     The Accused’s daughters, aged 10 and 17, are entirely dependent on her for their upbringing, education, and emotional support. Her elderly parents, who require constant care, are also reliant on her. A custodial sentence would severely impact not only her life but also the well-being of her family.[note: 20]

13     While the court has convicted the Accused, she had no intention of abetting Mr Wee’s suicide. The series of incidents that unfolded, as shown through the facts adduced during the trial, reflect her attempts to dissuade Mr Wee from taking his own life, and the court may have overlooked or misconstrued some key aspects.[note: 21]

14     It was crucial to highlight that:

(a)      Lack of criminal intent. The Accused did not intend to encourage or facilitate Mr Wee’s death. Her involvement stemmed from emotional manipulation by Mr Wee and a misguided sense of duty to honour his last wishes.[note: 22]

(b)      Efforts to dissuade Mr Wee. The Accused repeatedly tried to dissuade Mr Wee from committing suicide by offering alternative solutions, including financial help and employment opportunities. She even suggested he seek medical help, further demonstrating her intent to save him.[note: 23]

(c)      Mr Wee’s determination. Mr Wee’s determination to end his life was evident from his own preparations, including purchasing the nitrogen gas tank and orchestrating a detailed plan. The Accused was not the driving force behind these decisions.[note: 24]

(d)      Emotional turmoil and confusion. The Accused’s state of mind during the incident must be considered. Her actions were not rational but influenced by the overwhelming emotional stress and confusion she experienced upon finding Mr Wee in a critical state.[note: 25]

(e)      Her cooperation and honesty. When confronted by the authorities, the Accused admitted to her actions without hesitation, showing her willingness to cooperate despite her mental state at the time.[note: 26]

15     The Accused pleaded for leniency because the court opted not to believe, that as all scientific evidence shows memory does lapse over time. She felt aggrieved that the court chose instead to attribute to her a perfect and accurate memory upon which the conviction is built. She rightly or wrongly believed that this was a factor justifying leniency and the Defence Counsel were thus instructed to so plead.[note: 27]

16     The need for retributive justice was extremely low in the present case.[note: 28] The offence was not the sort of offence which incited public outrage.[note: 29]

17     The principle of prevention applied only in very serious cases of dangerous or persistent offenders. Clearly, the Accused did not fall into this category of criminals.[note: 30]

18     Even if the Court was minded to impose a deterrent sentence, a deterrent sentence need not take the form of a long custodial sentence.[note: 31]

19     Although the principle of rehabilitation was highly persuasive and should apply in the present case, nonetheless, the facts of this case suggest that there was no further need to rehabilitate the Accused. She had been remanded in Changi Prison for 330 days. After she was released on bail, she continued to keep a clean record and has shown that she has learnt her lesson and will not reoffend. Rehabilitation has been achieved in this case.[note: 32]

20     The offences that the Accused was convicted of were not for profit or some evil motive.[note: 33] She was not of wanton greed to profit by fraud on insurance companies and which involved the grievous loss of an innocent life but this case was the other way round. [note: 34]

My decision on sentence

Prescribed punishment

21     The prescribed punishment for s 306 of the Penal Code is imprisonment for a term which may extend to 10 years, and the offender shall also be liable to fine.

22     The prescribed punishment for s 204A of the Penal Code is imprisonment for a term which may extend to 7 years, or with fine, or with both.

23     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

24     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

25      Claiming Trial. Although claiming trial is not an aggravating factor, no discount would be given to offenders who elect to claim trial: Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [37] (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [20.147]).

26      Antecedents. The Accused had antecedents in 2011 for failing to comply with the condition of the work permit under s 22(1)(A) r/w s 22(1)(I) r/w s 23(1) of the Employment of Foreign Manpower Act (Cap 91A). No weight was placed on these antecedents as they were fairly dated and unrelated to the present case.

27      Personal Circumstances. The Accused alluded to the fact that as she is the sole bread-winner and a single parent, her incarceration would bring hardship to her family, especially her two daughters aged 10 and 17.[note: 35]

28     However, personal circumstances such as financial difficulties and hardship caused to family by their incarceration have no mitigating value save in the most exceptional cases: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [10]-[11] and Chua Ya Zi Sandy v Public Prosecutor [2021] SGHC 204 at [11]-[14].

29     Hardship to the family is a natural consequence when a family’s breadwinner decides to commit an offence and is imprisoned for it: Kannan s/o Birasenggam v Public Prosecutor [2021] SGCA 15 at [10].

30     In the present case, I saw no cogent reasons to consider her personal financial and family circumstances as valid mitigating factors.

31      Cooperation with the Authorities. I gave due weight to the Accused’s cooperation with the authorities.

32      Proportionality Principle. I kept in mind the proportionality principle in sentencing (Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [30]). Under the proportionality principle, the sentence to be imposed must not only bear a reasonable proportion to the maximum prescribed penalty, but also to the gravity of the offence committed (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [06.091]-[06.093]).

Section 306 of the Penal Code

33      Harm. Harm is a measure of the injury caused to society by the commission of the offence (Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [41]).

34     In the present case, Mr Wee died. Death is generally the most serious consequence of any offence: Public Prosecutor v BDB [2018] 1 SLR 127 at [60].

35     I was mindful that in assessing the level of harm or potential harm, the sentencing court should be careful not to double-count any factors which may already have been taken into account in assessing the level of culpability: Ye Lin Myint v Public Prosecutor [2019] 5 SLR 1005 at [58] (see also Andrew Ashworth, Sentencing and Criminal Justice (6th Ed, 2015, Cambridge University Press) at [4.3] and [4.5]).

36      Culpability. Culpability is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act: Public Prosecutor v Aw Tai Hock [2017] 5 SLR 1141 at [35] (see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th Ed, 2015) at [4.5]).

37     The Accused’s culpability can be seen by her handling of the nitrogen tank and IKEA bag at the material time.[note: 36]

(1)   Accused was involved in Mr Wee’s suicide plans

38     I agreed with the Prosecution that the Accused was involved in Mr Wee’s suicide plans. She referred him to Dr Kwan[note: 37] so that his death could be passed off as arising from natural causes. She joined Mr Wee in what she called a “trial run” of his plans to commit suicide. [note: 38] And she agreed to oversee Mr Wee’s funeral arrangements and penned him a eulogy.[note: 39]

(2)   Beneficiary of Life Insurance Policy

39     As of 16 May 2020, the Accused was a beneficiary with a 20% share of a S$1 million life insurance policy purchased by Mr Wee.[note: 40]

40     According to the Defence:

(a)     In return for Mr Wee’s kindness, the Accused took out a NTUC Income term insurance policy for $200,000 with Mr Wee nominated as one of the beneficiaries. [note: 41] This term insurance policy was discontinued later as the Accused was tight financially and “she thought that (Mr Wee) did not continue with his policy so (she) also did not want to continue”.[note: 42]

(b)     The Accused told Mr Wee that she did not need his money.[note: 43]

(c)     The Accused had testified that she was financially independent, raising her 2 children independently for 17 years without any credit card debt or personal loan, and that she had never taken a cent from her ex-husband.[note: 44]

(d)     Mr Wee told the Accused that if he died less than 1 year after the insurance policy had been taken out, she would not receive any money.[note: 45]

(e)     If Mr Wee had intended his insurance policy nominees (including the Accused) to receive the insurance payout upon his death, he could have postponed his suicide by a mere 11 days (from 16 May 2020 to 27 May 2020).[note: 46]

41     The Accused did not receive any payout from the life insurance policy.

42     In my judgment, given that the Accused did not ask Mr Wee to postpone his suicide by 11 days (in which case she would be eligible to receive the insurance payout), the fact that the Accused knew that she was a beneficiary of Mr Wee’s insurance policy did not animate her acts of intentionally aiding his suicide. In other words, her knowing that she was a beneficiary of his insurance policy should be given no weight in sentencing.

43     My view was fortified by the fact that the Accused had offered to sell her apartment and pass the sales proceeds of between $100,000 to $150,000 to Mr Wee.[note: 47] Mr Wee had declined her offer of goodwill.[note: 48] The Accused also transferred $8,000 to Mr Wee,[note: 49] loaned him $2,000 and offered Mr Wee a job in her funeral business. [note: 50]

(3)   Public Prosecutor v Lim Tee Hian

44     In Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393, the High Court stated that the offence of abetment of suicide could range from one committed under circumstances where the abettor acted out of altruism or mercy to relieve pain suffered by a terminally-ill principal whom he loves to one committed for profit or some evil motive (at [75]).

45     In Lim Tee Hian, the offender was convicted after a trial and sentenced to 8 years’ imprisonment for the s 306 Penal Code offence. He had instigated the deceased to commit suicide (at [71]).

46     The High Court in Lim Tee Hian stated that it was “indisputably a very serious case of abetment of suicide at the heart of which was the wanton greed of the accused to profit by fraud on insurance companies and which involved the grievous loss of an innocent life. It was planned over a period of time. The accused manipulated and took heartless advantage of the love and devotion of a naive and simple-minded girl who he knew loved him so much and so deeply that she was even prepared to sacrifice her own life to get him out of the mortal danger from the phantom creditors which he artfully persuaded her were real and imminent” (at [75]).

47     Given the facts and circumstances of Lim Tee Hian, the Accused was less culpable than the offender in Lim Tee Hian.

Section 204A of the Penal Code

(1)   Parthiban a/l Kanapathy v Public Prosecutor

48     The Court of Appeal in Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847 stated that:[note: 51]

(a)     General deterrence ought to be the primary sentencing consideration for s 204A of the Penal Code.[note: 52]

(b)     Offences under s 204A of the Penal Code included situations where offenders seek to obstruct the course of justice by eradicating or fabricating evidence of their own wrongdoing or that of others, whether to conceal acts of another or of one’s own transgressions.[note: 53]

(c)     A multitude of factors, both offence-specific and offender-specific, may be considered in determining the relevant sentence to be imposed. For example, in assessing the extent of wrongdoing, the nature of the predicate charge upon which the offender had sought to thwart the course of justice is relevant. The more serious it is, the more serious the act of perverting the course of justice will be (see the High Court decision in Seah Hock Thiam v Public Prosecutor [2013] SGHC 136 at [8]). Relatedly, the effect of the attempt to pervert the course of justice is also relevant, as is the case where offenders have perverted the course of justice in order to protect their own perceived interests.[note: 54]

(d)     The degree of persistence, premeditation and sophistication in the commission of the offences may also indicate the culpability of the accused person (see the District Court decision in Public Prosecutor v Lim Chit Foo [2019] SGDC 48 at [122]).[note: 55]

49     The Court of Appeal in Parthiban a/l Kanapathy at [29] affirmed the High Court’s sentence for the s 204A offence of one year and nine months’ imprisonment. Amongst other things, the predicate offence that the appellant’s actions were aimed at subverting – that of a capital charge – is the most serious conceivable (Parthiban a/l Kanapathy at [28]).

50     For completeness, in Public Prosecutor v S Iswaran, the High Court stated that there is no general principle that, in relation to offences under s 204A(a) of the Penal Code, the court should maintain “a degree of proportionality … by imposing a substantially lower sentence for the [s 204A(a)] offence than for the predicate offence” (at [118]). The High Court also disagreed that it was less serious to obscure the true facts than to destroy evidence (at [120]).

51     I agreed with the Prosecution that:

(a)     The predicate offence is extremely serious – this concerns the Accused’s abetment and involvement in Mr Wee’s suicide.[note: 56] The prescribed punishment for the s 306 offence is imprisonment which may extend to 10 years, and the offender shall also be liable to fine.

(b)     There was a degree of persistence, premeditation, and sophistication on the Accused’s part,[note: 57] including significant discussions between the Accused and Mr Wee as to how to get rid of the evidence.[note: 58]

(c)     The Accused undertook considerable efforts to bring these plans about, including instructing Mr Cheo[note: 59] to remove evidence (the nitrogen tank), disposing of the IKEA bag herself, and lying to SSSgt Munira[note: 60] to conceal Mr Wee’s suicide.[note: 61]

Sentences to run consecutively

52     As a general rule, sentences for unrelated offences should run consecutively, while sentences for offences that form part of a single transaction should run concurrently: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [41], [54] and [98(b)].

53     In the present case, all things considered, I was satisfied that both of the custodial sentences should run consecutively. Both charges related to different legally protected interests. The s 306 offence concerned punishing the voluntary facilitation of ending someone else’s life.[note: 62] The s 204A offence concerned the prevention of offences against justice by acts having the effect of hindering the course of justice (S Iswaran at [154]).

Totality principle

54     The sentence was in line with both limbs of the totality principle: Mohamed Shouffee Bin Adam at [54] and [57].

55      Sentence. All told, in the round, I sentenced the Accused as follows:

DAC No.

Sentence

Status

DAC 921296 2021

s 306 Penal Code

66 months

Consecutive

DAC 920605 2021

s 204A Penal Code

8 months

Consecutive

Total

74 months



Conclusion

56     The Prosecution proved its case beyond a reasonable doubt against the Accused. She was convicted on both charges.

57     She was sentenced to a global imprisonment term of 74 months.

58     The offence of abetting suicide clearly signals society’s opposition to suicide.[note: 63] Life is sacred.

59     I am grateful for the hard work and submissions of the Prosecution and the Defence.

[note: 1]Prosecution’s Skeletal Submissions on Sentence at [2], [3], [5] and [10]-[12].

[note: 2]Prosecution’s Skeletal Submissions on Sentence at [4(c)(i)].

[note: 3]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(1)].

[note: 4]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(2)].

[note: 5]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(3)].

[note: 6]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(4)].

[note: 7]Prosecution’s Skeletal Submissions on Sentence at [4(c)(iii)].

[note: 8]Prosecution’s Skeletal Submissions on Sentence at [4(c)(iv)].

[note: 9]Prosecution’s Skeletal Submissions on Sentence at [4(e)].

[note: 10]Prosecution’s Skeletal Submissions on Sentence at [4(e)(i)].

[note: 11]Prosecution’s Skeletal Submissions on Sentence at [4(e)(ii)].

[note: 12]Prosecution’s Skeletal Submissions on Sentence at [8(a)].

[note: 13]Prosecution’s Skeletal Submissions on Sentence at [8(b)].

[note: 14]Prosecution’s Skeletal Submissions on Sentence at [8(b)(i)].

[note: 15]Prosecution’s Skeletal Submissions on Sentence at [8(b)(ii)].

[note: 16]PW10.

[note: 17]PW16.

[note: 18]Prosecution’s Skeletal Submissions on Sentence at [8(b)(iii)].

[note: 19]Mitigation Plea at [7]-[8], [79] and [109].

[note: 20]Mitigation Plea at [31].

[note: 21]Mitigation Plea at [36].

[note: 22]Mitigation Plea at [42(a)].

[note: 23]Mitigation Plea at [42(b)].

[note: 24]Mitigation Plea at [42(c)].

[note: 25]Mitigation Plea at [42(d)].

[note: 26]Mitigation Plea at [42(e)].

[note: 27]Mitigation Plea at [46].

[note: 28]Mitigation Plea at [58].

[note: 29]Mitigation Plea at [58].

[note: 30]Mitigation Plea at [60].

[note: 31]Mitigation Plea at [63].

[note: 32]Mitigation Plea at [67].

[note: 33]Mitigation Plea at [77(b)].

[note: 34]Mitigation Plea at [77(c)].

[note: 35]Mitigation Plea at [24]-[31].

[note: 36]Prosecution’s Skeletal Submissions on Sentence at [4(c)(i)].

[note: 37]PW14.

[note: 38]SOAF at [38].

[note: 39]ASOF at [27]-[29] and [35].

[note: 40]Prosecution’s Closing Submissions at [4]. Defence’s Written Submissions at [11].

[note: 41]Defence’s Written Submissions at [136(b)].

[note: 42]Defence’s Written Submissions at [136(b)], citing ASOF-20 at [72].

[note: 43]Defence’s Written Submissions at [11] and [136(a)].

[note: 44]Defence’s Written Submissions at [136(c)].

[note: 45]Defence’s Written Submissions at [11].

[note: 46]Defence’s Written Submissions at [136(e) and (h)].

[note: 47]Defence’s Written Submissions at [144(d)], citing ASOF-19 at [24]. Mitigation Plea at [77(g)].

[note: 48]Defence’s Written Submissions at [144(d)], citing ASOF-19 at [24].

[note: 49]Defence’s Written Submissions at [144(b)].

[note: 50]Defence’s Written Submissions at [144(c)]. Mitigation Plea at [42(b)].

[note: 51]Prosecution’s Skeletal Submissions on Sentence at [7].

[note: 52]Prosecution’s Skeletal Submissions on Sentence at [7(a)].

[note: 53]Prosecution’s Skeletal Submissions on Sentence at [7(b)].

[note: 54]Prosecution’s Skeletal Submissions on Sentence at [7(c)].

[note: 55]Prosecution’s Skeletal Submissions on Sentence at [7(c)].

[note: 56]Prosecution’s Skeletal Submissions on Sentence at [8(a)].

[note: 57]Prosecution’s Skeletal Submissions on Sentence at [8(b)].

[note: 58]Prosecution’s Skeletal Submissions on Sentence at [8(b)(i)].

[note: 59]PW10.

[note: 60]PW16.

[note: 61]Prosecution’s Skeletal Submissions on Sentence at [8(b)(iii)].

[note: 62]Penal Code Review Committee Report (August 2018) at page 345.

[note: 63]Penal Code Review Committee Report (August 2018), paraphrasing page 348.

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Competition and Consumer Commission of Singapore and another v Nail Palace (BPP) Pte. Ltd. and another matter
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Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Georgina Lum
Counsel Name(s): Mr Chooi Yue Wai Kenny, Mr Joel Jaryn Yap Shen, Ms Yap Wei Yee (Adsan Law LLC) for the applicant; Mr Ng Boon Gan (VanillaLaw LLC) for the respondents.
Parties: Competition and Consumer Commission of Singapore — Nail Palace (BPP) Pte. Ltd. — Nail Palace (SM) Pte. Ltd.

Consumer Protection (Fair Trading) Act – Sections 9(4) and 9(5) – Whether there is a breach of accompanying orders issued

Contempt of Court – Civil Contempt – Disobedience of order of court

Contempt of Court – Civil Contempt – Sentencing

9 September 2024

Judgment reserved.

District Judge Georgina Lum:

Introduction

1       The plaintiff has filed Summons No. 2849 of 2023 (“Summons 2849”) in Originating Summons No. 285 of 2021 (“OSS 285”) and Summons No. 2850 of 2023 (“Summons 2850”) in Originating Summons No. 286 of 2021 (“OSS 286”).

2       In these two applications, the plaintiff seeks orders for the imposition of fines on the defendant companies in both proceedings and for the committal of their managing director, Mr. Kaiden Cheng, for breaching two Orders of Court dated 28 July 2023 (i.e. HC/ORC 3513/2023 and HC/ORC 3515/2023) issued by Judicial Commissioner Goh Yihan (as he then was) in appeals filed against certain orders issued by District Judge Elaine Lim (“DJ Lim”) in OSS 285 and 286 (hereinafter to be collectively referred to as "the Orders of Court").

Background

The parties

3       The plaintiff, the Competition and Consumer Commission of Singapore (“CCCS”), is a statutory board of the Singapore government. Since 1 April 2018, it has been entrusted with administering and enforcing the Consumer Protection (Fair Trading) Act 2003 (2020 Rev Ed) (“CPFTA”), which safeguards consumers against unfair trade practices.

4       Nail Palace (BPP) Pte Ltd (“NPBPP”) is the defendant in OSS 285 and Nail Palace (SM) Pte Ltd (“NPSM”) is the defendant in OSS 286. Both defendants are companies that provide, amongst other things, manicure and pedicure services, and foot-related treatments.

5       Mr Kaiden Cheng (“Mr Cheng”) is the managing director of both defendants at all material times and other related companies providing similar services and products, all of which trade under the business name “Nail Palace”.

6       For ease of reference, I will refer to the CCCS as the applicant, to NPBPP and NPSM collectively as “the respondent companies” and to NPBPP, NPSM and Mr Cheng collectively as the “respondents”.

Procedural history

7       On 17 December 2021, OSS 285 and OSS 286 were filed. In a nutshell, under section 9 of the CPFTA, the applicant sought (a) declarations that the respondent companies had engaged in certain unfair practices in relation to fungal treatment packages, (b) final injunctions to restrain the respondent companies from engaging in such practices, and (c) various accompanying orders.

8       On 8 August 2022, DJ Lim issued a 66-page judgment (“the Judgment”) in which comprehensive grounds were given as the basis for her issuing a decision substantively in favour of the appellant and granting most of the reliefs it had sought (see Competition and Consumer Commission of Singapore v Nail Palace (BPP) Pte Ltd and another matter [2022] SGDC 171).

9       A request for further arguments were made by the respondent companies with respect to some of the accompanying orders. On 2 September 2022, DJ Lim dismissed the further arguments and gave the respondent companies an extension of time to comply with the accompanying orders which were the subject of their further arguments.

10     In two Orders of Court dated 2 September 2022, DJ Lim ordered inter alia that each of the respondent companies:

“2.    …is to publish, at its own expense, within twenty-one days from 2 September 2022, details of the declarations and injunctions granted against it, by way of a full page public notice in the Straits Times, Lianhe Zaobao, Berita Harian, and Tamil Murasu, pursuant to sections 9(4) and 9(5) of the Consumer Protection (Fair Trading) Act.”

3.    …must, before any consumer enters into a contract in relation to a consumer transaction with it during a period of two years from 2 September 2022:

(1)    notify the consumer in writing about the declarations and injunctions in force against the Defendant; and

(2)    obtain the consumer’s written acknowledgement of receipt of the said notice.”

(Hereinafter to be referred to as the “DC Publication Orders” and the “DC Consumer Notification Orders” respectively)

11     The Orders of Court dated 2 September 2022 were served on the respondents with the requisite penal notices inserted in September 2022.

12     On 14 September 2022, the respondent companies filed appeals against the DC Publication Orders and the DC Consumer Notification Orders given by the learned DJ on 2 September 2022. These appeals were placed before Judicial Commissioner Goh Yihan (as he then was).

13     On 8 November 2022, the respondent companies filed applications to stay the orders issued by DJ Lim in both OSS 285 and OSS 286 pending the determination of the appeals before the High Court (“the Stay Applications”). On 20 June 2023, the learned DJ dismissed the Stay Applications.

14     On 28 July 2023, the High Court dismissed both appeals and issued the two Orders of Court.

15     Paragraph 2 of both Orders of Court states that:

“2.    The Appellant is to publish, at its own expense, within twenty-one days from 28 July 2023, details of the declaration and injunction granted against it, by way of a full page public notice in the Straits Times, Lianhe Zaobao, Berita Harian, and Tamil Murasu, pursuant to sections 9(4) and 9(5) of the Consumer Protection (Fair Trading) Act.

(Hereinafter to be referred to as the “HC Publication Orders”)

16     At paragraph 3 of the Orders of Court, the High Court further ordered that:

“3.    The Appellant must, before any consumer enters into a contract in relation to a consumer transaction with it during a period of two years from 28 July 2023:

(1)    notify the consumer in writing about the declaration and injunction in force against the Appellant; and

(2)    obtain the consumer’s written acknowledgement of receipt of the said notice.”

(Hereinafter to be referred to as the “HC Consumer Notification Orders”)

17     On 2 and 3 August 2023, the respondent companies and Mr Cheng were personally served with copies of the Orders of Court with the requisite penal notices properly inserted.

18     In the two present applications, the applicant seeks a fine of at least S$15,000 against each of the respondent companies (NPBPP and NPSM) and a custodial sentence of 3 to 4 months for Mr Cheng arising from their continuing failure to comply with the HC Publication Orders and the HC Consumer Notification Orders to date[note: 1].

19     The respondents accept that they have breached the HC Publication Orders from 13 August 2023 to 31 August 2023 and accept that they have breached the HC Consumer Notification Orders on 14 September 2023. The respondents however submit that they have complied with the HC Publication Orders on 31 August 2023 and have complied with the HC Consumer Notification Orders save for “a single instance of non-compliance”[note: 2]. On this basis, the respondents further submit that the imposition of a fine within the range of S$5000 and S$16,000 against all the respondents would be an appropriate sentence and further submit that in the event a custodial sentence is imposed that it should be suspended[note: 3].

Issues to be determined

20     Bearing in mind the position taken by parties in their submissions, it appears that there is no disagreement regarding the occurrence of a breach. The real bone of contention between parties is the extent of the breach by the respondents and the appropriate sentence to be imposed.

21     Therefore, in my judgment, the following are the issues to be determined:

(a)     The extent of the respondent companies’ breach of the HC Publication Orders;

(b)     The extent of the respondent companies’ breach of the HC Consumer Notification Orders;

(c)     Whether Mr Cheng is liable for contempt: and

(d)     The appropriate sentence to be imposed on each of the respondents.

Issue 1: The extent of the respondents’ breach of the HC Publication Orders

22     With respect to the HC Publication Orders, the respondents contend that:

(a)     The HC Publication Orders had been complied with on 31 August 2023; and

(b)     Prior to the deadline of 18 August 2023, the respondents had made attempts to comply and had unintentionally failed to meet the said deadline because the applicant had refused to “take a clear position on the mode of compliance which would satisfy it” and the respondents were no longer legally advised[note: 4].

23     For the reasons stated below, I do not and cannot accept both these contentions.

There was no compliance by the respondents on 31 August 2023

24     On 31 August 2023, the respondents reproduced and condensed all 66 pages of the Judgment issued by DJ Lim into a single page and published four one-page advertisements in the Straits Times, Lianhe Zaobao, Berita Harian and Tamil Murasu (“the Advertisements”).

25     The applicant asserts[note: 5] that the form and manner in which the Advertisements were made do not secure adequate publicity, that the Advertisements published in Lianhe Zaobao, Berita Harian and Tamil Murasu were not duly translated and that the Advertisements should have included reference to the Orders of Court made by JC Goh.

26     In their response, the respondents argue[note: 6] that the applicant is seeking to expand the scope of the HC Publication Orders without basis and unilaterally imposing additional requirements on NPBPP and NPSM. The respondents further contend that neither the HC Publication Orders nor the CPFTA stipulate the specific format for publications or mandate translations into Chinese, Malay or Tamil. Additionally, they assert that the publications need not make reference to the Orders of Court[note: 7].

27     I am unable to accept the arguments presented by the respondents.

28     Where injunctions and declarations are granted, section 9(4) of the CPFTA clearly provides that the Court has the discretion to make an accompanying order that the supplier publish the details of the declaration or injunction in a form and manner that will secure prompt and adequate publicity for the declaration or injunction issued against the supplier.

29     Section 9(5) of the CPFTA further provides that details in such publications should include: (a) the name of the supplier; (b) whether the supplier is subject to any other subsisting declaration or injunction, or both, pursuant to any other action commenced under this section; (c) the address at which the supplier is carrying on the supplier’s business; and (d) where the supplier carries on business through the Internet, the Internet address at which the supplier may enter into a consumer transaction with a consumer.

30     The discretion to compel publication was exercised by both DJ Lim and Judicial Commissioner Goh Yihan (as he then was) who have issued decisions with respect to the underlying dispute in the present matter. In fact, specific references to sections 9(4) and 9(5) of the CPFTA were made in both the DC Publication Orders and the HC Publication Orders.

31     Detailed analyses of the legislative intent behind the introduction of these accompanying orders into the CPFTA were made by both DJ Lim and JC Goh. I do not propose to repeat these dissertations in their entirety in my judgment but will state for the record that I am in entire agreement with Judicial Commissioner Goh Yihan (as he then was) that three purposes were meant to be achieved in the creation of these accompanying orders in the Consumer Protection (Fair Trading) Act 2023.

(a)     The first and primary aim of such orders are to raise consumer awareness of suppliers who are under accompanying injunctions or declarations to assist consumers in making informed purchasing decisions.

(b)     Secondly, certain categories of accompanying orders are meant to enable the agency concerned to monitor errant suppliers

(c)     Lastly, the accompanying orders are meant to have a general deterrent effect.

32     I further note that in highlighting the purpose behind the introduction of accompanying orders under section 9(4) of the CPFTA, Dr Koh Poh Koon, Minister of State for Trade and Industry at the Second reading of the Consumer (Fair Trading) Amendment Bill in 2016[note: 8] specifically stated that:

Taken together, the requirements for errant retailers to publicise the injunction orders and notify consumers of the injunction prior to entering into a transaction…will serve to raise consumers’ awareness of retailers who are under injunction. Consumers can then decide if they still want to purchase from the retailer. This goes back to the principle of ‘caveat emptor’, buyers beware, with consumers exercising their choice and making informed purchasing decisions.

33     Bearing in mind the clear terms in which sections 9(4) and 9(5) of CPFTA are couched and the express legislative intent set out by Dr Koh Poh Koon, it is incontrovertible that the primary purpose of the accompanying HC Publication Orders is to notify consumers and raise consumer awareness of the injunctions and declarations issued against the respondents.

34     In my view, the Advertisements have failed to achieve the primary public purpose for which they were intended and fail to comply with the HC Publication Orders in both form and substance.

35     The form in which the Advertisements were issued intentionally obscures the terms and effect of the declarations and injunctions issued against NPBPP and NPSM while purporting to achieve technical compliance with the court orders made and section 9(5) of the CPFTA. Copies of the Advertisements were submitted to the Court in both A4 size and the standard size of a newspaper page. In both formats, the reproduction and condensation of a 66-page Judgment into a one-page document rendered the terms of the declarations and injunctions contained therein nearly illegible.

36     The respondents argue that the Advertisements contain all the particulars required in section 9(5) of the CPFTA[note: 9]. This argument does not assist the respondents when the details required to be communicated to consumers are hidden within a substantial amount of text and 101 paragraphs of a Judgment. The deliberately chosen mode of presentation effectively conceal the details of the injunctions and declarations made against NPBPP and NPSM.

37     On a plain examination of the reproductions provided to me, I cannot accept that any reasonable man or individual could objectively or subjectively take the view that the Advertisements would secure adequate publicity for the declarations and injunctions against the respondent companies, notify consumers of the terms of the declarations and injunctions against the respondent companies and/or raise awareness on the part of a consumer to assist him/her in making informed purchasing decisions.

38     In fact, I am of the view that the fundamental failure in form that the Advertisements took has the consequential effect of rendering the Advertisements substantially in breach of the HC Publication Orders.

39     The intent, purpose and therefore substance behind the issuance of a publication order under section 9(4) of the CPFTA is to notify and inform consumers of injunctions and declarations made so they may make informed choices in their decisions as consumers. The entire reproduction and condensation of the Judgment into the one-page Advertisements to obscure the declarations and injunctions contained within does not meet this intent or purpose at all.

40     Further to the above, the contents of the Advertisements were also not translated into Chinese, Malay or Tamil when the purported publications were made in Lianhe Zaobao, Berita Harian and Tamil Murasu respectively.

(a)     On this issue, the respondents argue that the HC Publication Orders did not specifically require translations and submit that the applicant was “expanding the requirements” in the said order and “imply(ing) the additional requirement of translation[note: 10].

(b)     I accept that the HC Publication Orders did not expressly state that translations from English were required for publication in these 3 newspapers but am of the view that the orders did not need to do so.

(c)     Not all members of the public or consumers in Singapore are proficient in English and an order for publication in the 4 major local newspapers (each serving the function of communicating news to the public at large in the 4 main languages used in Singapore) is clearly aimed at ensuring that readers of these publications who are more likely to be either only or primarily proficient in Chinese, Malay or Tamil would be made aware of the declarations and injunctions issued against NPBPP and NPSM.

(d)     The applicant was not implying “an additional requirement” into the HC Publication Orders in objecting to the respondents’ failure to translate the abovementioned Advertisements, it was merely accurately interpreting the scope of the HC Publication Orders made.

(e)     As such, in addition to the reasons stated above, I am of the view that the Advertisements made in Lianhe Zaobao, Berita Harian and Tamil Murasu also did not comply with the HC Publication Orders as they were not translated into the respective languages used by each of these print media platforms for communicating news and notifications to the public.

41     I do however accept in part the respondents’ submission that reference to all the orders issued within the Orders of Court was not necessary in its publications. In summary, the Orders of Court:

(a)     dismissed the appeals made by the respondents,

(b)     imposed a fresh deadline for publication of the details of the declarations and injunctions issued by DJ Lim;

(c)     extended the period of the DC Consumer Notification Order to a period of two years from 28 July 2023; and

(d)     awarded costs in favour of the applicant.

42     It bears highlighting that: (a) the declarations and injunctions made by DJ Lim can be found at [100(a)] to [100(d)] of the Judgment; and (b) the DC Publication Orders and DC Consumer Notification Orders are accompanying orders issued in support of these declarations and injunctions.

43     The HC Publication Orders only required the respondents to publish details of the declaration and injunction issued against NPBPP and NPSM within twenty-one days from 28 July 2023. In my view, the respondents were not required to publish details on the fresh deadlines issued for accompanying orders or cost orders made. I am however of the view that by necessity and to give the proper context to any publication issued, the respondents would need to refer to Orders of Court issued by the High Court to inform the public that they were obliged to comply with injunctions and declarations by virtue of orders of court issued on 8 August 2022, 2 September 2022 and 28 July 2023 with respect to OSS 285 and OSS 286 and appeals arising thereon.

44     In short, I am of the view that the HC Publication Orders did not require the respondents to publish details of the accompanying orders issued with respect to the injunctions and declarations but that reference to the Orders of Court needed to be included in the publications issued thereunder for completeness and context.

Conduct prior to purported compliance with the HC Publications Orders

45     In addition to claiming that publication had been made by way of the Advertisements, it the respondents’ position that they did not have any intention of breaching the HC Publication Order.

46     To substantiate this, Mr Cheng asserts the following in his reply affidavit filed on behalf of the respondents[note: 11]:

(a)     On 17 August 2023, the respondents had sought advice from their solicitors on compliance with the HC Publication Orders but did not manage to obtain any advice because the quote submitted by their previous solicitors exceeded their budgetary constraints.

(b)     On 18 August 2023, the respondents “sought clarification from the (applicant), but the (applicant) had declined to directly correspond with (the respondents) on the matter of compliance”.

(c)     On 23 August 2023, the respondents “sought the (applicant’s) approval as to the draft advertisement prior to publication” but the applicant “again declined to respond substantively to the (respondents) and deferred to the (applicant’s solicitors) instead”.

(d)     “Due to these difficulties”, the respondents (without any legal advice or assistance) had attempted to comply with the HC Publication Orders by publishing the Judgment as “it was the most transparent way of comprehensively setting out the findings and orders made against it”.

47     The respondents further claim that it is “unfair” for the applicant to “not take a clear position on the mode of compliance” and “then proceed to make an application for committal based on the (respondents') honest and reasonable failures to comply”[note: 12].

48     These assertions do not assist the respondents. I arrive at this observation for the following reasons.

49     Prior to engaging their current solicitors, the respondents were advised by two different sets of solicitors in the present proceedings[note: 13]. M/s Vicki Heng Law Corporation ("VHLC") provided advice to the respondents from the initiation of proceedings in January 2022 until shortly after appeals were filed against DJ Lim’s Judgment around 19 September 2022. Thereafter, KSCGP Juris LLP (“KSCGP”) was appointed in or around 19 October 2022[note: 14]. On 14 December 2023 a Notice of Change of Solicitor was filed reflecting the appointment of the respondents’ current solicitors.

50     On 2 January 2004[note: 15], the respondents’ current solicitors sought input from both of the respondents’ previous solicitors, on a draft of the reply affidavits filed by the respondents herein with respect to events that the respondents claim had occurred in 2022 and 2023.

51     In response, KSCGP had clarified in a letter dated 5 January 2024[note: 16] that:

(a)     On 28 July 2023, their firm had sent an email to Ms. Valerie Tan of the respondents (“Ms. Tan”) enclosing the judgment issued by Judicial Commissioner Goh Yihan (as he then was) on 28 July 2023 (“the HC Judgment”) to ask if the respondents required advice on the said judgement and on the merits of an appeal to the Court of Appeal.

(b)     On the same day, Ms. Tan responded to their firm’s email stating they needed advice on the HC Judgement and KSCGP then provided a quote.

(c)     On 12 August 2023 and 14 August 2023, KSCGP’s Mr. Navinder Singh sent messages via Whatsapp to the respondents to request that they send KSCGP an email stating that they will not appeal against the Judgment and they will not engage KSCGP to advise on compliance issues.

(d)     On 14 August 2023, Ms. Tan advised that the respondents would not be appealing to the Court of Appeal but would engage their firm to advise on the compliance issues.

(e)     On 16 August 2023, KSCGP provided a quote for post judgement work.

(f)     On 17 August 2023, KSCGP sent a letter to the applicant’s solicitors to request for a draft of the full-page notice in English and to request for an extension till 25 August 2023 to comply with the HC Publication Orders.

(g)     Repeated reminders for payment to be made towards their bill were sent by KSCGP to the respondents between 18 August 2023 and 15 September 2023.

(h)     On 30 August 2023, KSCGP sent an email to the respondents to follow up on the payment, and also to remind the respondents that “they have to comply with the HC Publication Orders and that the publications as ordered run effectively from 18 August 2023”. The respondents were also informed that it is a contempt of court if they did not comply with the court orders, and that the applicant can commence enforcement proceedings against the respondents for which the directors can be taken to task, and the punishment for contempt of court is a fine or imprisonment or both.

(i)     On 12 October 2023, KSCGP received instructions from the respondents that they will not require KSCGP’s services for the post judgment work.

52     To provide further context to the sequence of events that had occurred from the issuance of the HC Publication Orders on 28 July 2023 to 31 August 2023, I also refer to the contemporaneous correspondence exchanged between parties[note: 17].

53     One day before the deadline for publication stipulated in the HC Publication Orders, on 17 August 2023 at 4.17pm, the respondent companies’ solicitors wrote to the applicant’s solicitors: (a) stating that they were “instructed to…request for the wording draft for the full-page public notice in English for (their) clients’ consideration…and humbly request till 25 August 2023” to comply with the HC Publication Order; and (b) seeking a response by 12 noon on 18 August 2023.

54     On 18 August 2023 at 2.32pm, the applicant’s solicitors replied to the respondent companies’ solicitors. In this written response, it was stated that: (a) the respondents should be seeking their own legal advice as to, inter alia, the manner of compliance with the relevant Orders of Court issued; (b) the applicant is not legally obliged to draft the wording of the notices for the respondents’ “consideration”, or to provide any advice to the respondents; and (c) it was incumbent on the respondents to ensure strict compliance with the separate and distinct obligations in the relevant Orders of Court.

55     Concurrent to the above correspondence between solicitors, the general manager of NPBPP, Ms Tan was attempting to engage the applicant directly on the HC Publication Orders.

(a)     On 18 August 2023 at 10.55am, Ms Tan emailed the Senior Assistant Director of the applicant, Mr Angus Xie (“Mr Xie”) requesting for an “exemption” from publication order for (the respondents) since the cost of this publication will be reflectively high:

(b)     On the same day at 3.14pm, Mr Xie replied to state that all requests to the applicant with respect to the Orders of Court should be made to the applicant through KSCGP as both the respondent companies are represented by counsel.

(c)     On 21 August 2023, Mr Xie sent an email to Ms Tan:

(i)       Putting on record that he had received 2 missed calls and a voice message on 21 August 2023 asking him to call Mr Cheng;

(ii)       Expressly stating that he would not be calling Mr Cheng; and

(iii)       Repeating his request that all correspondence with respect to the Orders of Court should be exchanged between solicitors.

(d)     Ms Tan replied in an email dated 22 August 2023 repeating the respondents’ request to speak directly with the applicant.

(e)     On 23 August 2023, Ms Tan sent an email at 1.47pm:

(i)       Claiming to have spoken with Mr Xie and “writing to discuss what (they had) spoke(n) about”;

(ii)       Claiming to have included a “clause in (their) written agreements with clients notifying them of the injunction”

(iii)       Asking for approval to allow the respondent to place one “notice advertisements” (sic);

(iv)       Asking the applicant to “let (them) know if there is anything else that (they) need to take note of, otherwise, (they) will proceed as written above”; and

(v)       Informing the applicant that the respondents “will proceed accordingly, if there are no further comments received by 3pm today”.

(f)     At 3.16pm on the 23 August 2023, Mr Xie replied to state that:

(i)       The applicant wished “to clarify and put on record that neither (himself) nor any of (his) colleagues spoke to (Ms Tan) or any other representative of (the respondent companies) at any time prior to or after (Ms Tan’s) email;

(ii)       As stated in their emails dated 18 August and 21 August 2023, the applicant’s position remains that all requests and correspondence to the applicant in relation to the Orders of Court should be made to the applicant through its lawyers; and

(iii)       For the avoidance of doubt, the applicant’s position remains that the respondents are obliged to comply with the Orders of Court and reserve the right to take the necessary legal action if the Orders are not complied with within the stipulated time periods.

56     In my view, the contemporaneous correspondence disclosed and the chronology of events provided by the respondents’ previous solicitors did not indicate that any steps were taken by the respondents to comply with the HC Publication Orders till the day before the stipulated deadline for publication of 18 August 2023 (i.e. 17 August 2023).

57     Even on 17 August 2023, the only step taken by the respondent companies and their solicitors was to issue a letter to the applicant’s solicitors looking to the applicant for a draft “notice” for the respondents’ “consideration”.

58     The contemporaneous correspondence exchanged when read with the submissions made before this Court in the two present applications on this issue, indicate that the respondents are under the misapprehension since July 2023 that:

(a)     the onus does not lie on the respondents to ensure that they obtain adequate legal advice and/or take all possible steps in a timely fashion to comply with the HC Publication Orders;

(b)     the burden of drafting an announcement complying with the HC Publication Orders lay with the applicant and/or its solicitors; and/or

(c)     compliance with the HC Publication Orders was a matter which they could attempt to unilaterally vary or negotiate on even after the said orders had been breached.

59     There is no obligation on the applicant and/or its solicitors to advise the respondent companies on the steps they need to take to comply with the HC Publication Orders. Indeed, it would have been inappropriate for the applicant to do so given that the respondent companies were legally represented at the material time. It was for the respondent companies and Mr Cheng to ensure that the respondent companies complied with the Orders of Court issued against it.

60     Since the respondent companies had chosen to wait till days before the stipulated deadline in the HC Publication Orders to seek advice from their solicitors on compliance with the Orders of Court and thereafter decided not to obtain legal advice due to budgetary constraints, they must stand by their decision to do so and its consequences. The onus to ensure compliance with the HC Publication Order rests on the respondents, not the applicant or its solicitors.

61     Further and in any event, their subjective view that they have honestly complied is not relevant in finding if there is contempt.

62     The mens reas necessary to establish a finding of civil contempt is set at a low threshold. It suffices that the relevant conduct was intentional, and that the contemnor knew of all the facts that rendered such conduct a breach of the order (such as the order’s existence and its terms): SpaceSATS Pte Ltd v Chan Chia Sern and others [2023] SGHC 40 at [31] (“SpaceSATS”). While the contemnor must necessarily have knowledge of the existence of the order and its material terms, it need not be shown that he had the specific intention of disobeying the court order or appreciated that he was breaching the order: Mok Kah Hong v Zheng Zhuan Yao [2016] 3 S.L.R. 1 at [86] (“Mok Kah Kong”) and SpaceSATS at [31]. The contemnor’s motive in doing the acts which breached the court order is strictly irrelevant to the question of liability, and is only relevant to the question of mitigation or in determining the appropriate penalty to be imposed: OCM Opportunities Fund II, LP, Burhan Uray (alias Wong Ming Kiong) [2005] 3 S.L.R. (R.) 60 at [27] (“OCM Opportunities”) and Mok Kah Kong at [86]. The criminal standard of proof (i.e. beyond reasonable doubt) applies in determining liability: SpaceSATS at [38].

63     In the present case, the respondents were all aware of the existence and material terms of the Orders of Court and had intentionally issued the Advertisements in purported compliance with the HC Publication Orders. While the respondent and/or its officers may submit that they did not subjectively appreciate that these publications did not comply with the order (which I do not accept), this is not a factor that is relevant to the question of liability for contempt in this present context. I am further of the view that this was not an honest and/or reasonable mistake that could in any event have been made given the illegibility of the Advertisements published and the clear terms of the HC Publication Orders.

64     In the circumstances and for the reasons stated above, I am satisfied beyond reasonable doubt that the respondent companies are liable for contempt for breach of the HC Publication Orders.

Issue 2: The extent of the respondents’ breach of the HC Consumer Notification Orders

65     Moving on to the HC Consumer Notification Orders.

66     On 14 September 2023, with a view towards ascertaining if the respondent companies were complying with the HC Consumer Notification Orders, two senior executives of the applicant visited NPBPP’s outlet at 1 Jelubu Road $04-02 Bukit Panjang Plaza Singapore 677743 (“NPBPP outlet”) and NPSM’s outlet at 3 Simei Street 6 #02-17 East Point Mall Singapore 528833 (“NPSM’s outlet”) as new customers (“the September Visits”).

67     Both executives entered into a contract on the same date for pedicure and manicure services at the two outlets and it is their evidence[note: 18] that:

(a)     throughout their entire visit they were not notified in writing of the declaration and injunction against the respondent companies and were also not asked to sign a written acknowledgment of receipt; and

(b)     As new customers who had walked in, requested and paid for services, they were not asked at any point in time to sign any “customer registration form” or any such similar document throughout their entire visit at both outlets.

68     The respondents concede that there was indeed non-compliance on 14 September 2023 but contend[note: 19] that:

(a)     The breach was “one-off and not premeditated”; and

(b)     The breach was not deliberate as the respondent companies had put in place measures to comply with the HC Consumer Notification Orders.

69     In support of the respondents’ claims that measures had been put in place to ensure compliance with the HC Consumer Notification Orders, Mr Cheng has filed two reply affidavits on the respondents’ behalf in the present two applications tendering copies of the following documents[note: 20]:

(a)     An internal memorandum to the respondents’ staff issued on 27 October 2022 informing their staff that they were to obtain the signatures of customers on a Customer Registration Form (“the October Memorandum”).

(b)     The Customer Registration Form which Mr Cheng asserts includes “a notice of the Court Orders at the end” (“the Customer Registration Form”).

(c)     Records of customers who signed the Customer Registration Form (“the Registration Records”); and

(d)     A further memorandum issued to the respondents’ staff on 21 December 2023 “to ensure that all future customers shall be asked to sign the Customer Registration Form and have their attention drawn to the notice in relation to the declaration and injunction” (“the December Memorandum”).

70     On a close review of the documents provided, I am not satisfied that: (a) appropriate measures had been put in place to ensure compliance with the HC Consumer Notification Orders; (b) there had been compliance with the DC Consumer Notification Orders and the HC Consumer Notification Orders; and (c) the events that occurred on 14 September 2023 were a “single lapse amidst of a continuous attempt to comply”[note: 21].

71     As a starting point, the instructions issued to the respondents’ staff do not appear to include a direction to notify all consumers entering into a contract in relation to a consumer transaction with the respondent companies of the declarations and injunctions in force against them. It appears that, at best, directions were given to their employees to inform a sub-set of consumers of the existing declarations and injunctions, namely, “walk-ins and customers who are newly signed up”.

(a)     Section 2(1) of the CPFTA defines the terms “consumer” and “consumer transaction” as follows:

“consumer” means an individual who, otherwise than exclusively in the course of business —

(a)    receives or has the right to receive goods or services from a supplier; or

(b)    has a legal obligation to pay a supplier for goods or services that have been or are to be supplied to another individual.

“consumer transaction” means —

(a)    the supply of goods or services by a supplier to a consumer as a result of a purchase, lease, gift, contest or other arrangement; or

(b)    an agreement between a supplier and a consumer, as a result of a purchase, lease, gift, contest or other arrangement, in which the supplier is to supply goods or services to the consumer or to another consumer specified in the agreement,

but does not include any transaction specified in the First Schedule.

(b)     The First Schedule of CPFTA states that the term “consumer transaction” does not include any of the following transactions:

“(a)   acquisition of an estate or interest in any immovable property (but not including any lease of residential property granted in consideration of rent or any time share contract);

(b)    (to avoid doubt) service provided under a contract of employment.”

(c)     Applying the above definitions to the DC Consumer Notification Orders and the HC Consumer Notification Orders, the respondent companies were obliged since 2 September 2022 to notify every consumer (new, existing and/or repeat) who wished to engage any of the services of the respondent companies (by way of an appointment or by walking into any of their outlets) of the declarations and injunctions issued against them.

(d)     However, this does not appear to have been done.

(e)     The October Memorandum[note: 22] only directed the respondents’ staff to ensure that “walk-ins and customers who are newly signed up” fill up the Customer Registration Form.

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(f)     The electronic Customer Registration Form used also indicates that the form was to be filled in by consumers at their first appointment.

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(g)     The December Memorandum[note: 23] issued after the present applications were filed similarly restricted notification to “walk-ins and newly signed-up customers. In this memorandum, the respondents further informed their staff that a fine of S$500 would be imposed on “anyone who fails to ask the customer to sign the form”.

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(h)     Counsel for the respondents submitted[note: 24] that the directions given in the memorandums did not “expressly restrict the Customer Registration Form to only “walk-ins and customers who are newly signed up”, that the second paragraph of the memorandums remind the respondent companies’ staff to go over details of the form with “customers” (and that this term would include all customers) and that the Customer Registration Form itself does not exclude previous or repeated customers from filling it up. It was further submitted at the hearing of the applications that the term “walk-in” would include all customers that walked into any outlet and thereby include all customers.

(i)     I disagree. A plain reading of the documents tendered do not reflect an intention by the respondents (and any direction given by the respondents to their staff) to inform existing and repeat customers of the declarations and injunctions. I am also of the view that the submissions made by counsel for the respondents run contrary to the position taken by Mr Cheng (on behalf of the respondents) in an affidavit filed on 25 April 2023 with respect to the respondent companies’ Stay Applications[note: 25] that as part of its implementation efforts, the respondents had “in or around September 2022…added a statement at the bottom of the registration form for new customers” (emphasis added).

(j)     In the circumstances, I am of the view that since September 2022, the respondent had (at best) attempted to inform new customers of the injunctions and declarations issued by DJ Lim but did not take steps to inform all consumers who wished to engaged their services as they were obliged to do under the DC Consumer Notification Orders and the HC Consumer Notification Orders.

72     Secondly, even if every consumer who entered into a contract in relation to a consumer transaction with the respondent companies had received a Customer Registration Form and had provided their written acknowledgement of the same, the notification contained within the Customer Registration Form is incomplete and does not comply with the HC Consumer Notification Orders issued.

(a)     DJ Lim had issued two declarations and two injunctions on 8 August 2022 in her Judgment at [100]:

“(a)   a declaration that each of the (respondent companies) has engaged in an unfair practice within the meaning of section 4(d), read with paragraph 1B of the Second Schedule, to the CPFTA, by making a misleading representation concerning the need for fungal treatment(s) or fungal treatment package(s); and

(b)    a declaration that (NPSM) has also engaged in an unfair practice within the meaning of section 4(a) of the CPFTA, by omitting to inform a consumer that certain products were included in the price of a treatment package, thereby resulting in the consumer being misled

(c)    that Nail Palace BPP be restrained from engaging in the unfair practice referred to in subparagraph (a) above;

(d)    that Nail Palace SM be restrained from engaging in the unfair practices referred to in subparagraphs (a)-(b) above”

(b)     The notification contained in the Customer Registration Form reads as follows:

“Pursuant to Orders of Court of the State Courts, Republic of Singapore dated 8 August 2022 and 2 September 2022, we are hereby required to notify you that pursuant to the said Orders, a declaration was made by the Court that we had engaged in an unfair practice within the meaning of section 4(d), read with paragraph 1B of the Second Schedule, to the Consumer Protection (Fair Trading ) Act (“CPFTA”), by making a misleading representation concerning the need for fungal treatment or fungal treatment packages. We are further required to inform you that we have been restrained by the said Orders from engaging in any such unfair practices”

(c)     The notification is lacking in two respects.

(i)       There is no reference to the declaration made by DJ Lim at paragraph 100(b) the Judgment against NPSM and no reference to the injunction against NPSM from engaging in the unfair practices referred to at paragraph 100(b) of the Judgment; and

(ii)       The notification also does not inform the consumer that in addition to the two order of courts issued by DJ Lim on 8 August 2022 and 2 September 2022, the respondent companies are also bound by the Orders of Court issued on 28 July 2023 by the High Court.

73     Thirdly, the Registration Records[note: 26] provided by the respondents also indicate that there have been substantial and continuing lapses by the employees of the respondent companies even with respect to the directions the respondents had issued in the October Memorandum.

(a)     The Registration Records appear to record notifications being made to 1078 consumers in the period from 6 September 2022 to 24 December 2023.

(b)     Contrary to directions given in the October Memorandum that it was mandatory for the respondents’ staff to ensure that walk-ins and customers would fill in their “name, mobile number and address” in the Customer Registration Form, from 6 September 2022 to 30 October 2022, there are no particulars provided on the identity of 463 consumers who were purportedly notified of the declarations and injunctions. An extract of the records provided to the Court for this time period is replicated below[note: 27]:

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(c)     For the period of ten months, from 11 February 2023 to 19 December 2023, there are also no entries reflecting the notification of any customer by NPBPP during this time period.

(d)     The Registration Records therefore reflect that:

(i)       The respondents’ staff had not consistently and/or completely adhered to the directions issued in the October Memorandum; and

(ii)       NPBPP did not comply with the DC Consumer Notification Order and HC Consumer Notification Order for the period of ten months from 11 February 2023 to 19 December 2023.

74     In addition to its arguments that measures had been put in place to comply with the HC Consumer Notification Orders, the respondents further contend that it was their employees that had not complied with protocols or procedures that it had put in place[note: 28] and on this basis they take the view that the breach had occurred despite their attempts to comply with the HC Consumer Notification Orders.

75     It is trite law that the disobedience or breach may have been committed by an employee of the corporation but the corporation may still be held liable and its director punished for contempt: Datuk Hong Kim Sui v. Tiu Shi Kian [1987] MLJ 345 at [347]. It is not for the respondent companies to shift the burden of compliance to its employees and a breach on the part their employees is a breach of the respondents.

76     In this regard, it also bears highlighting that in the context of committal applications, liability is strict in the sense that all that is required to be proved is service of the order and the subsequent omission by the party to comply with the order: PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others [2018] 4 SLR 828 (“PT Sandipala”) at [47]–[48].

77     As such, the imperfect, incomplete and/or ad hoc compliance on the part of the respondent companies recorded in the evidence and documents before the Court is sufficient for the purposes of establishing liability.

78     In the circumstances, I am satisfied beyond reasonable doubt that the respondent companies are liable for contempt for breach of the HC Consumer Notification Orders.

Issue 3: Whether Mr Cheng is liable for contempt

79     Sections 6(2) and 6(7) of the Administration of Justice Protection Act 2016 (“AJPA”) provide that:

(2)    Where a corporation commits contempt of court under this Act, a person —

(a)    who is —

(i)    an officer of the corporation, or a member of a corporation whose affairs are managed by its members; or

(ii)   an individual who is involved in the management of the corporation and is in a position to influence the conduct of the corporation in relation to the commission of the contempt of court; and

(b)    who —

(i)    consented or connived, or conspired with others, to effect the commission of the contempt of court;

(ii)   is in any other way, whether by act or omission, knowingly concerned in, or is party to, the commission of the contempt of court by the corporation; or

(iii)   knew or ought reasonably to have known that the contempt of court by the corporation (or contempt of court of the same type) would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that contempt of court, shall be guilty of the same contempt of court as is the corporation, and shall be liable on being found guilty of contempt of court to be punished accordingly.

(7)    In this section —

“corporation” includes a limited liability partnership within the meaning of section 2(1) of the Limited Liability Partnerships Act 2005;

“officer”, in relation to a corporation, means any director, partner, chief executive, manager, secretary or other similar officer of the corporation, and includes —

(a)    any person purporting to act in any such capacity; and

(b)    for a corporation whose affairs are managed by its members, any of those members as if the member was a director of the corporation;

“state of mind” of a person includes —

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

80     It is apparent from the contents of the multiple affidavits that Mr Cheng has filed in both OSS 285, OSS 286 and the appeals arising thereon that he has been and is actively involved in: (a) the conduct of the present proceedings; and (b) overseeing the management and conduct of both the respondent companies and the “Nail Palace” group of companies to which they belong.

81     It is therefore no surprise that there have been no submissions made and/or evidence tendered before this Court taking the position that Mr Cheng had not been involved and/or had not participated in the management of and/or decision-making process behind the conduct of the respondent companies during these entire proceedings with respect to the DC Publications Orders, the DC Consumer Notification Orders, the Orders of Court, the HC Publication Orders and/or the HC Consumer Notification Orders.

82     In fact, submissions and evidence with respect to the two present applications were tendered on behalf of all the respondents in OSS 285 and OSS 286 as a unified whole and supported by evidence given by Mr Cheng on their behalf.

83     Mr Cheng’s position is therefore in entire alignment with: (a) the respondent companies that he oversees as a managing director; and (b) the submissions that the respondents have tendered with respect to Orders of Court, the HC Publication Orders, the HC Consumer Notification Orders, their conduct in relation to said orders and the claims made against all of them by the applicant in the present applications.

84     In the circumstances, given the approach taken by Mr Cheng to the present applications, his role and involvement in the two respondent companies, his knowledge of the terms of the Orders of Court since at least 3 August 2023 and his active participation in the present proceedings, I am of the view that he knew or ought reasonably to have known that contempt of court by the respondent companies was being committed, and had failed to take all reasonable steps to prevent or stop the commission of that contempt of court. I am therefore also satisfied beyond reasonable doubt that Mr Cheng is liable for the breach of the HC Publications Orders and the HC Consumer Notification Orders.

Issue 4: The appropriate sentences to be imposed

85     In view of my findings above, I now turn to consider the appropriate sentences to be imposed.

Parties’ Submissions

86     The applicant seeks[note: 29] a fine of at least S$15,000 against each of the respondent companies (NPBPP and NPSM) and a custodial sentence of 3 to 4 months against Mr Cheng on the basis that:

(a)     The contemnors are in continuing, deliberate, egregious and persistent breach of the Orders of Court;

(b)     The contemnors have a history of flagrant disregard of earlier orders of court and continued lack of cooperation;

(c)     The absence of valid reasons for non-compliance; and

(d)     The substantial prejudice caused to the applicants, consumers and public interest which cannot be remedied by costs or money.

87     The respondents submit that a suspended sentence and/or a fine between S$5000 to S$16,000 would be appropriate and asked the court to consider the following for the purposes of sentencing[note: 30]:

(a)     That the short delay in publishing the Advertisements is not a result of the respondents’ unwillingness to comply with the HC Publication Orders;

(b)     That the applicant’s demands of the mode of compliance with respect to the HC Publication Orders stands in contrast with the express terms of the HC Publication Orders, the express provisions of the CPFTA, and with its earlier disengaged, non-communicative stance;

(c)     That the respondents’ breach of the HC Consumer Notification Orders is once-off and in spite of its attempts to comply by introducing various measures; and

(d)     That the applicant is seeking to unfairly and through logical sleights of hand to characterise the respondents as contumelious, without accounting for the specific issues in dispute at the various stages of the proceedings, as well as using its own unreasonable behaviour to paint an unfavourable picture of the respondents.

Applicable legal principles

88     In the District Courts, contempt of court is punishable with a fine not exceeding S$20,000 or with imprisonment for a term not exceeding 12 months or with both (s12(1)(c) of the AJPA).

89     In exercising its discretion and determining the appropriate sentence to be imposed in each case, the courts will consider the facts of each case and the nature of contempt committed. In this exercise, the courts do take into account the past conduct of the contemnor in determining the appropriate sentence to be imposed: Mok Kah Kong at [106].

90     To provide a navigable framework in this decision, I refer to the various factors and guidelines elucidated by the Court of Appeal and the High Court in the cases of SpaceSATS at [103], Sembcorp Marine Ltd v Aurol Anthony Sabastian [2013] 1 SLR 245 at [57] to [68] (“Sembcorp Marine”) and Mok Kah Kong at [103] and [104]. It is clear from these decisions that the factors to be considered in sentencing include:

(a)     The purpose of the order breached and the impact of the breach on that purpose;

(b)     The reversibility of the breach – i.e. whether the harm caused can be remedied by a fine and costs, or if there is substantial prejudice which cannot be remedied by costs;

(c)     Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;

(d)     The extent to which the contemnor has acted under pressure;

(e)     Whether the breach of the order was deliberate or unintentional;

(f)     The contemnor’s degree of culpability;

(g)     Whether the contemnor has been placed in breach of the order by reason of the conduct of others; and

(h)     Whether the contemnor has cooperated.

91     In addition to the abovementioned factors, Justice S. Mohan in SpaceSATS at [103] referred to the case of SembCorp Marine and noted that there is a stronger case for imprisonment where there is:

(a)     a continuing, deliberate and persistent course of conduct (Sembcorp Marine at [57]);

(b)     a failure to resolve the situation and continued lack of cooperation (Sembcorp Marine at [57] and [64]);

(c)     egregious behaviour and motive (Sembcorp Marine at [59]); and/or

(d)     a series of repeated breaches of the court order evincing flagrant disregard for the court’s authority (Sembcorp Marine at [62]).

92     Bearing the above in mind, I now turn to apply the above factors (where relevant) to the present case.

Is a custodial sentence appropriate?

93     I am of the view that the imposition of a custodial sentence is appropriate in the present case for the following 3 reasons.

94     As a start, I am of the view that there has been continuing, deliberate, egregious and persistent conduct by the respondents in disregard of their existing obligations under the Orders of Court. and in particular the HC Publications Orders and HC Consumer Notification Orders made thereunder.

95     The terms of the Orders of Court are unambiguous and clear.

96     To comply with the HC Publication Orders, the full-page public notices submitted for publication by the respondents would have to simply:

(a)     Make reference to all the orders of court compelling the respondents to issue the publications, namely, the Orders of Court dated 8 August 2022, 2 September 2022 and 28 July 2023;

(b)     Contain exact reproductions of the declarations and injunctions issued against them by DJ Lim in her Judgment at [110(a)] to [110(d)]; and

(c)     Be translated into chinese, malay and tamil when submitted for publication to Lianhe Zaobao, Berita Harian and Tamil Murasu.

97     With respect to the HC Consumer Notification Orders, there is similarly nothing complicated in the creation of a document (in electronic or physical form) containing the declarations and injunctions issued by DJ Lim in her Judgment at [110(a)] to [110(d)] and thereafter issuing clear instructions and reminders to all staff (on a regular basis if necessary) to ensure that all customers acknowledge the said form before services are provided by the respondent companies with measures put in place to ensure and monitor compliance.

98     However, this was not done by the respondents.

99     Instead, the evidence and contemporaneous documents provided before this Court show:

(a)     the respondents knowingly and intentionally breaching the HC Publication Orders by condensing the entire 66-page Judgment issued by DJ Lim into one page Advertisements thereby rendering: (i) the terms of the declarations and injunctions stated therein almost illegible and/or obscured; and (ii) the publication ineffectual;

(b)     the respondents intentionally and deliberately electing not to take proper, adequate and/or complete steps and/or measures to comply with the HC Consumer Notification Orders from 28 June 2023 to date;

(c)     a lack of urgency and a cavalier approach being taken by the respondents to compliance with the Orders of Court;

(d)     an unfounded misconception on the part of the respondents that they are entitled to: (i) look to the applicant for confirmation on the steps they were required to take in compliance with the Orders of Court; and/or (ii) place the blame for their non-compliance on the applicant; and

(e)     only technical or minimal attempts at purported compliance being made by the respondents in the form of the Advertisements published, two memorandums issued to its staff and the incomplete notifications issued to a sub-set of consumers on an ad hoc basis which do not comply with the Orders of Court issued.

100    Secondly, I accept that a sterner approach needs to be taken in sentencing with respect to the respondents’ present breaches of the Orders of Court as the breaches before me are but the latest chapter in the respondents’ history of disregarding orders of court in the present proceedings.

(a)     DJ Lim issued the DC Publication Orders and DC Consumer Notification Orders on 8 August 2022 and extended the deadline for compliance on 2 September 2022.

(b)     The Stay Applications were filed on 8 November 2022 and dismissed on 20 June 2023 by DJ Lim.

(c)     In an affidavit filed by Mr Cheng in April 2023[note: 31] in support of the Stay Applications, the respondents asserted that:

(i)       The “significant delay” in the filing of the stay Applications were due to Mr Cheng being “preoccupied with the opening of a new shop in Jurong Point” in November 2022”, being “actively involved with the year-end stock take for all Nail Palace outlets” and having “multiple meetings with Nail Palace’s leasing team and other related staff of Nail Palace”.

(ii)       The respondents had already implemented measures to comply with the DC Consumer Notification Orders by adding “a statement at the bottom of the customer registration form for new customers” and that “the new customers of the (respondent companies) are already aware of the declarations and injunctions”.

(iii)       The respondents had not complied with the DC Publication Orders because the DC Publication Orders “would essentially be informing the larger society of the declarations and injunctions made against a practice that the (respondents are) no longer engaged in”, “would hurt the business and reputation of the (respondent companies)” and “would negatively impact the growth of the (respondent companies’) business”; and

(iv)       A stay of execution pending the hearing of the appeals would ensure that the respondent companies are not unfairly prejudiced by the orders made by DJ Lim.

(d)     The position taken by the respondents in the affidavit above, clearly reflect that they were duly notified and aware that they had to comply with the orders issued by DJ Lim but had chosen to prioritise their business operations over compliance and elected not to comply with the existing orders against them pending the resolution of the appeals filed against the DC Publication Orders and the DC Consumer Notification Orders.

(e)     However, in the reply affidavits filed by Mr Cheng (on behalf of all the respondents) in these applications, he claimed that their previous solicitors “KSCGG, (had) verbally advised the (respondent companies) and (him) that the compliance with the orders made by District Judge Elaine Lim Mei Yee could be postponed until the stay of execution had been decided”[note: 32]. On this basis, the respondents claim that they were “therefore acting under the honest and reasonable failure to understand that the act of filing the Notice of Appeal did not act as a stay of execution”

(f)     KSCGG has denied the above by way of a letter dated 5 January 2024[note: 33] in which it has stated unequivocally that their firm “did not advise Nail Palace that they did not need to comply with the order made” by DJ Lim and had in fact taken out a stay application on behalf of the respondent companies.

(g)     Given the chain of events and evidence placed before me on this issue, I am compelled to find that the respondents did not honestly and/or subjectively fail to appreciate that they were not entitled to a stay of execution pending appeal.

(i)       The position taken by the respondents in the affidavits filed for the Stay Application, clearly reflect that they were duly notified that they had to comply with the orders issued by DJ Lim and had merely elected not to do so at all, adequately and/or in a timely fashion.

(ii)       If the respondents had honestly held the belief and/or were advised that the orders issued by DJ Lim were suspended pending appeal, there would have also been no necessity for the Stay Applications to have been filed in November 2022 when the appeals against DJ Lim’s orders were filed on 14 September 2022.

(h)     As such, I accept the applicant’s arguments that from September 2022 to July 2023, notwithstanding the fact that they had failed in their attempts to obtain a stay, the respondents had:

(i)       Intentionally and egregiously made no attempts to comply with the DC Publication Orders;

(ii)       only (at best) taken minimal and incomplete steps to comply with but had not complied with the DC Consumer Notification Orders; and

(iii)       displayed a flagrant disregard for the orders of court issued by DJ Lim in August and September 2022.

101    Thirdly, I am also of the view that a custodial sentence is appropriate as the prejudice caused as a result of the continuing breach by the respondents is substantial, not reversible, cannot be remedied by a fine or costs and has impacted the public at large.

(a)     In the present case, there is a public interest to the Orders of Court sought and obtained by the applicant.

(b)     As part of the duties entrusted to it as a statutory board to enforce the CPFTA, the applicant had obtained declarations and injunctions from DJ Lim to prevent NPBPP and NPSM from inter alia making misleading misrepresentations and/or omitting to inform a consumer that certain products were included in the price of a treatment package.

(c)     The accompanying orders mandating publication and consumer notifications were issued and obtained to ensure: (i) prompt and adequate publicity of the injunctions and declarations issued against the respondent companies; and (ii) consumers intending to engage the services of the respondent companies were duly notified of the said declarations and injunctions before they elected to exercise their right to enter into a contract with the respondent companies.

(d)     The prejudice caused by the respondents’ breach is therefore clearly not limited to the applicant but extends to the public and consumers in Singapore who have to date:

(i)       Not received the benefit and protection which should have been afforded to them by the HC Publication Orders and the HC Consumer Notification Orders since 28 July 2023; and

(ii)       Not been completely, properly and/or duly notified of the declarations and injunctions issued against the respondent companies by DJ Lim since September 2022.

(e)     The nature of the harm caused by the respondents’ breach is clearly substantial, irremediable and is harm that in my view is not capable of being monetarily quantifiable or being ameliorated by the payment of damages or costs or fines by the respondents thereby rendering fines an insufficient and inappropriate mode of punishment and a suspended sentence unsuitable.

102    In the circumstances and for all the reasons above, I am of the view that this is a necessary and appropriate case for a custodial sentence to be imposed.

The appropriate sentences

103    The respondents have referred to the two cases of Rohrlach Nicolas Robert Adam v Qantas Airways Ltd [2022] 4 SLR 983 at [68] (“Rohrlach”) and Baker Michael A (executor of the estate of Chantal Burnison, deceased) v BCS Business Consulting Services Pte Ltd and others [2024] SGHC(I) 2 at [57] (“Baker Michael”) as appropriate sentencing precedents for the present matter.

104    I am however of the view that these 2 cases can be distinguished as the factual matrix in the present matter is significantly different from those found in Rohrlach and Baker Michael.

(a)     In Rohrlach, a former employee was given a fine of S$25,000 for breaching an interim prohibitory injunction. However, in Rochlach, there were only two isolated incidents of breach found by the court (Rohrlach at [63]), the other party in the matter had suffered no prejudice (Rohrlach at [65]) and there is no element of public interest.

(b)     In Baker Michael, the director of a company was fined S$80,000 for breach of an anti-suit injunction. However, unlike the present case, there was no public element and no prejudice suffered by the innocent party as the defendants in Baker Michael did not manage to obtain the advantage they wished to obtain despite the breach of the anti-suit injunction (Baker Michael at [33] and [65]).

105    The applicant has highlighted 3 cases as relevant sentencing precedents for my consideration.

(a)     In OCM Opportunities, 6 months imprisonment was imposed on each of the contemnors. In that case, the contemnors breached a mareva injunction, a permanent injunction, and cross-examination orders by failing to disclose assets and attend court for cross-examination. The breaches by the contemnors were on a continuing basis and continued up to the time of the hearing of the committal proceedings. In OCM Opportunities, the defendants had also not purged their contempt but had remained uncooperative, deliberate and contumacious in breaching the terms of the orders.

(b)     In Maruti Shipping Pte Ltd v Tay Sien Djim [2014] SGHC 227 (“Maruti Shipping”), 6 months imprisonment was imposed on the first defendant and a S$10,000 fine was imposed on the company. In Maruti Shipping, the contemnor had breached a mareva injunction by withdrawing $380,000 from his account and failing to file the necessary documents in compliance with his disclosure obligations under an Anton Piller order and Mareva injunction. He also breached an Anton Piller order by preventing the execution of the said order and failing to allow the plaintiff to enter the premises. In Maruti Shipping, the court also took into consideration the fact that the first defendant was a “repeat offender” who had previously been imprisoned 3 months for the breach of a mareva injunction.

(c)     In Toyota Tsusho (Malaysia) Sdn Bhd v Foo Tseh Wan [2017] 4 SLR 1215 (“Toyata Tsusho”), the third defendant director had breached his obligations under a Mareva injunction by filing several affidavits in purported compliance with the order which were thereafter found to be unconvincing and lacking credibility (at [49]). The court in Toyota Tsusho imposed 3 months imprisonment with a 10-day suspension to afford the contemnor a final opportunity to purge his contempt by complying with the disclosure order.

106    Having regards to the precedents above, the facts of the present case and the nature of the continuing breaches committed by the respondents from September 2022 to date, I am of the view that the submissions made by the applicant on the appropriate sentences to be imposed are reasonable.

Conclusion

107    For the reasons above, with respect to Summons No 2849 of 2023 and Summons No 2850 of 2023:

(a)     I find that NPBPP is guilty of contempt of court in that NPBPP has breached paragraphs 2 and 3 of the Order of Court dated 28 July 2023 (HC/ORC 3513/2023). NPBPP is fined $15,000 to be paid within 4 weeks;

(b)     I find that NPSM is guilty of contempt of court in that NPSM has breached paragraphs 2 and 3 of the Order of Court dated 28 July 2023 (HC/ORC 3515/2023). NPSM is fined $15,000 to be paid within 4 weeks; and

(c)     I find that Mr Cheng is guilty of contempt of court in that he was and is as an officer of the respondent companies who knew or ought reasonably to have known that the actions of the respondent companies in breach of paragraphs 2 and 3 of the Orders of Court dated 28 July 2023 (HC/ORC 3513/2023 and HC/ORC 3515/2023) would be or was being committed and had failed to take reasonable steps to prevent or stop the commission of that contempt of court. I commit him to 4 months imprisonment in Changi Prison.

108    I will now hear parties on costs.

[note: 1]Applicant’s written submissions filed on 19 March 2024 (“AWS”) at Section H

[note: 2]Respondents’ written submissions filed on 19 March 2024 (“RWS”) at [2]

[note: 3]RWS at [2] and [16] to [19]

[note: 4]Affidavits filed by Mr Kaiden Cheng on 8 January 2024 in OSS 285 (“OSS 285 Reply Affidavit”) and OSS 286 (“OSS 286 Reply Affidavit”) (hereinafter to be collectively referred to as “Reply Affidavits”) at [6] and RWS at [2] to [4]

[note: 5]CWS at sections E, J.1, J.4 and J.5

[note: 6]RWS at [2] and [4]

[note: 7]RWS at [4]

[note: 8]Exhibit P4

[note: 9]RWS at [5]

[note: 10]RWS at [5]

[note: 11]Reply Affidavits at [6]

[note: 12]Reply Affidavits at [6] and RWS at [3]

[note: 13]Reply Affidavits at [5]

[note: 14]Notice of Appointment of solicitor filed on 19 October 2022

[note: 15]Reply Affidavits at page 8

[note: 16]Reply Affidavits at pages 9 and 10

[note: 17]Xie Junhao’s two affidavits filed on 24 November 2022 in support of the applications filed in OSS 285 and OSS 286 (“XJH 1st Affidavit”) at pages 39 to 47

[note: 18]Four affidavits filed by Ms Chue Qian Qi, Shu-Ann and Ms Yvonne Goh Jia Yu on 24 November 2023 in OSS 285 and OSS 286.

[note: 19]RWS at [7]

[note: 20]Reply Affidavits at [7], OSS 285 Reply Afft at pages 11 to 69 and OSS 286 Reply Afft at pages 11 to 128

[note: 21]RWS at [10]

[note: 22]Reply Affidavits at page 11

[note: 23]OSS 285 Reply Affidavit at page 70

[note: 24]RWS at [10]

[note: 25]Exhibit P6

[note: 26]OSS 285 Reply Affidavit at pages 15 to

[note: 27]OSS 285 Reply Affidavit at page 46

[note: 28]Reply Affidavits at [7] and RWS at

[note: 29]AWS at sections H and I

[note: 30]RWS at [2], [19] and [20]

[note: 31]Exhibit P6

[note: 32]Reply affidavits at [5.d.] and [5.e.]

[note: 33]Reply affidavits at pages 9 and 10

"},{"tags":["Criminal Law – Offences – Sexual offences – Voyeurism","Criminal Procedure and Sentencing – Sentencing – Forms of punishment","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-10-18","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904085 of 2024 & 2 Others","title":"Public Prosecutor v Ng Dick Soan","citation":"[2024] SGMC 72","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32357-SSP.xml","counsel":["Samuel Chew (Attorney-General's Chambers) for the Public Prosecutor","Lim Wen Yang, Bryan (Hoh Law Corporation) for the Accused."],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ng Dick Soan

Public Prosecutor v Ng Dick Soan
[2024] SGMC 72

Case Number:Magistrate Arrest Case No 904085 of 2024 & 2 Others
Decision Date:18 October 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Samuel Chew (Attorney-General's Chambers) for the Public Prosecutor; Lim Wen Yang, Bryan (Hoh Law Corporation) for the Accused.
Parties: Public Prosecutor — Ng Dick Soan

Criminal Law – Offences – Sexual offences – Voyeurism

Criminal Procedure and Sentencing – Sentencing – Forms of punishment

Criminal Procedure and Sentencing – Sentencing – Principles

18 October 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       This is a case of voyeurism perpetrated by a head of department of a company against his direct subordinate by taking upskirt recordings of her. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       At the time of the offence, the accused, Ng Dick Soan (“Mr Ng”), currently a 51-year-old Malaysian who is also a Singapore Permanent Resident, was a head of department and the victim’s direct superior at the company where they both worked. As they lived close to each other, Mr Ng offered to fetch the victim to work whenever they needed to be at the office. On 12 April 2023, Mr Ng drove them to work. While climbing a flight of stairs from the carpark to the office, Mr Ng, who followed the victim from behind, took upskirt recordings of her by holding his handphone underneath her dress with its in-built camera facing upwards between her legs. Mr Ng’s actions were captured on video by a fellow colleague who had witnessed him take upskirt recordings of the victim on two other earlier occasions in March 2023. That colleague subsequently reported Mr Ng to the company and following internal investigations, the company in turn reported the matter to the police.

Charges and prescribed punishment

3       Mr Ng has pleaded guilty to a charge of voyeurism under section 377BB(4) of the Penal Code 1871 (2020 Rev Ed) (“PC”) for taking upskirt recordings of the victim with his handphone on 12 April 2023, while knowing that she did not consent to Mr Ng operating his handphone with that intention. He has also consented to have two similar charges taken into consideration for the purpose of sentence (“TIC”) in respect of the other two occasions in March 2023.

4       The punishment prescribed by section 377BB(7) of the PC for voyeurism is imprisonment for up to two years, a fine, caning, or any combination of such punishments. Although Mr Ng is ineligible to be caned, an imprisonment term not exceeding 12 months in lieu of the caning can be imposed on him as additional punishment: section 325(2) of the Criminal Procedure Code 2010 (2020 Rev Ed).

Parties’ positions

5       Mr Ng has no criminal antecedents.

6       The prosecution has sought to impose a sentence of eight to 12 weeks’ imprisonment on him on the basis of:

(a)     its low harm-low culpability assessment of the case;

(b)     its starting point sentence of ten to 15 weeks’ imprisonment that pegs:

(i)       harm at the lower end of the ‘low harm’ spectrum, and

(ii)       Mr Ng’s culpability at the highest end of the ‘low culpability’ spectrum because of:

(A)       the serious breach of trust that the victim had reposed in him as her superior,

(B)       some degree of premeditation involved in the commission of the offence, and

(C)       the subjective knowledge that the victim did not consent to him taking such upskirt videos of her;

(c)     an uplift of two to three weeks’ imprisonment to the starting point sentence to account for the aggravating presence of two similar TIC charges;

(d)     a full 30% reduction in sentence for Mr Ng’s early indication of guilty plea; and

(e)     an application of relevant case authorities in the light of a breach of trust and the presence of similar TIC charges that are the distinguishing features of the present case.

7       The defence has sought a sentence of not more than seven days’ imprisonment, if not a fine, for Mr Ng based on the specific circumstances of the present offence being on the less severe of the low harm-low culpability spectrum because of:

(a)     a lower degree of invasion of the victim’s privacy;

(b)     the absence of physical contact with the victim during the course of the offence;

(c)     the absence of any stalking or following of the victim;

(d)     the lack of premeditation on Mr Ng’s part and the lack of sophistication in committing the offence;

(e)     potential harm of dissemination or circulation limited by Mr Ng having deleted the recordings;

(f)     Mr Ng’s genuine remorse and contrition shown by his admission to the company of wrongdoing that led to the subsequent termination of his employment, his apology to the victim, his full cooperation with the police, and his guilty plea;

(g)     Mr Ng’s clean past record;

(h)     the hardship caused by the offence and the effects of court proceedings;

(i)     Mr Ng’s strong propensity for reform by channelling his energy in a positive manner and setting up a new consultancy company two weeks after his termination; and

(j)     a downward calibration of the sentences in Tan Siew Chye Nicholas v PP (“Nicholas Tan”) [2023] 4 SLR 1223 and PP v Aung Myint [2023] SGMC 93 that ought to be considered for the present case.

Court’s decision

8       After convicting Mr Ng on 14 October 2024, I reserved my judgment on sentence. I now sentence Mr Ng to seven weeks’ imprisonment. I set out the reasons for my decision.

Issues to be decided

9       Applying the Nicholas Tan sentencing framework for offences of voyeurism under section 377BB(4) of the PC, there are three main issues I have to decide in this case.

Operative sentencing principles; forms of punishment; starting point sentence and adjustments to be made

10     They are:

(a)     the operative sentencing principle for the present offence;

(b)     whether a fine is an appropriate sentence to consider for the offence; and

(c)     the starting point sentence having considered the offence-specific harm-culpability factors, as well as the adjustments to be made having regard to the offender-specific aggravating and mitigating factors personal to Mr Ng.

11     I resolve the issues in this way:

(a)     deterrence is generally the dominant sentencing consideration and it is therefore incumbent on the sentencing court to send a stern and unequivocal signal, on behalf of society, that voyeurism such as the present offence will not be tolerated: Nicholas Tan at [42] and [43];

(b)     the retention of such emphasis on deterrence leads to the result that the sentences imposed for section 377BB(4) PC cases would likely include an imprisonment term: Nicholas Tan at [49]. Indeed, section 377BB(4) PC cases will typically cross the custodial threshold given the intrinsic seriousness of the offence. Although I agree with the parties and arrive at the same low harm-low culpability assessment for this case, it is not in the “less severe of the low harm-low culpability cases that a fine may sufficiently advance the sentencing objective of deterrence”: Nicholas Tan at [86]; and

(c)     considering the offence-specific factors, I assess the level of harm to be at the lower end of the ‘low harm’ spectrum, but the level of Mr Ng’s culpability to be at the higher end of the ‘low culpability’ spectrum. The circumstances of the present offence are such that the custodial threshold is crossed and there is nothing about the case that suggests the interests of deterrence would be adequately met by the imposition of a fine: Nicholas Tan at [98]. I assess the starting point sentence to be eight weeks’ imprisonment, and apply an upward adjustment of two weeks’ imprisonment to take into account the aggravating presence of the two similar TIC charges. I then accord the full 30% reduction in sentence for Mr Ng’s early indication of guilty plea. This is somewhat demonstrative of genuine remorse and contrition, which is generally consistent with Mr Ng’s admission of wrongdoing to the company that led to the subsequent termination of his employment, his apology to the victim and his cooperation with the authorities, though this is militated by the fact that he was caught red-handed as the present offence was captured on video by a colleague. More importantly, he has spared the victim of having to testify against him in a trial.

12     The sentence reflects Mr Ng’s overall qualitative criminality viewed through the specific dual lens of the breach of trust and the aggravating presence of similar TIC charges in this case.

Analysis of issues

13     I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing consideration for voyeurism offence

14     Deterrence is generally the dominant sentencing consideration for a voyeurism offence under section 377BB(4) of the PC and it would rarely be the case that emphasis would shift away from deterrence to rehabilitation even where the offender has demonstrated an extremely strong propensity for reform: Nicholas Tan at [42] and [48].

15     It behoves the sentencing court to send a stern and unequivocal signal, on behalf of society, that voyeurism will not be tolerated because it:

(a)     offends the sensibilities of the general public and triggers unease;

(b)     involves an appalling attempt to invade the victim’s privacy and is an affront of our society’s fundamental value that no one should have to suffer the indignity of having his or her modesty outraged or insulted; and

(c)     affects the extent to which members of the public feel safe as they go about their daily life: Nicholas Tan at [43].

16     Harm caused in the form of significant emotional distress suffered when a victim becomes aware of falling prey to voyeurism, or even where there is no such awareness but when there is potential for dissemination and retention of recordings in which victims are identifiable, brings general and specific deterrence to the fore: Nicholas Tan at [44] and [45].

17     The commission of a voyeurism offence generally involves a degree of furtiveness, planning and premeditation on the part of the offender that warrants the imposition of deterrent sentences: Nicholas Tan at [46]. The imposition of stiff sentences is timely and necessary to curb voyeurism offences that are easy to commit but difficult to detect with technological advancements that have facilitated the ease with which such offences can be stealthily committed: Nicholas Tan at [47].

Issue 2: Fine not appropriate punishment for voyeurism offence

18     The retention of such emphasis on deterrence leads to the result that the sentences imposed for section 377BB(4) PC cases would likely include an imprisonment term: Nicholas Tan at [49]. Indeed, section 377BB(4) PC cases will typically cross the custodial threshold given the intrinsic seriousness of the offence, unless they lie at the less severe end of the low harm-low culpability spectrum such that a fine may sufficiently advance the sentencing objective of deterrence: Nicholas Tan at [86].

19     Although I agree with the parties and arrive at the same low harm-low culpability assessment for this case, it is not in the less severe of the low harm-low culpability cases. The circumstances of the present offence are such that the custodial threshold is crossed and there is nothing about the case that suggests the interests of deterrence would be adequately met by the imposition of a fine: Nicholas Tan at [98]. The defence has submitted Mr Ng’s strong propensity for reform. The efforts that have been detailed in relation to rebuilding his life and his career are a necessary consequence or outcome of his criminal behaviour, but says nothing about addressing the root cause(s) of his offending behaviour and the prevention of future offending. Even taking the defence case at its highest in this regard, it would be rare for the emphasis to shift from deterrence to rehabilitation on the ground of the offender’s strong propensity for reform; this was not a truly exceptional case to warrant this: Nicholas Tan at [48].

Issue 3(a): Starting point sentence of seven months’ imprisonment based on low harm-low culpability assessment

20     Considering the offence-specific factors, I assess the level of harm to be at the lower end of the ‘low harm’ spectrum, but the level of Mr Ng’s culpability to be at the higher end of the ‘low culpability’ spectrum.

21     Given that I have already ruled out a sentence of fine as a form of punishment, the indicative range of imprisonment for an offence involving low harm and low culpability is up to four months’ imprisonment: Nicholas Tan at [83]. The starting point sentence within that range that reflects the lower end of the ‘low harm’ spectrum and the higher end of the ‘low culpability’ spectrum is eight weeks’ imprisonment.

Harm caused is at lower end of ‘low harm’ spectrum

22     The parties have agreed that the harm caused is at the lower end or the less severe of the ‘low harm’ spectrum. I too agree. I have previously expressed that less egregious ‘upskirt’ or ‘down-blouse’ offences can reside at the lower end of the low harm spectrum: PP v JCZ [2024] SGMC 57 at [16]. In this case, the invasion of privacy was confined to the observation of the victim’s buttocks and underwear. The victim was not made aware that she had fallen prey to voyeurism at the time of the offence. It is also undisputed that there was no physical contact with the victim during the offence. The prosecution has however disputed the defence’s categorisation of Mr Ng’s motive for deleting the recordings as being driven by remorse. The point, as rightly submitted by the defence orally, is that at the very least, such deletion minimised any potential harm by limiting any danger of dissemination or storage of the recordings.

Mr Ng’s culpability is at higher end of ‘low culpability’ spectrum

23     Parties part company in their assessment of Mr Ng’s culpability. The prosecution has pegged this at the “highest end” of the low culpability spectrum, whereas the defence has pegged this at the “less severe” of the low culpability spectrum. I am more inclined towards the prosecution’s view in this regard and assess Mr Ng’s culpability to be at the higher end of the low culpability spectrum for four reasons:

(a)     first, as the prosecution has submitted, Mr Ng had actual knowledge that the victim did not consent to the offending conduct and his culpability is therefore higher: Nicholas Tan at [77];

(b)     second, the defence has contended that there was no premeditation on Mr Ng’s part and that and he had committed the offence on the spur of the moment. But as the prosecution has rightly submitted, this is contradicted by his admission that a previous accidental ‘upskirt’ recording of the victim made him think that he could take such recordings on subsequent occasions. The operation of a mobile phone with an in-built camera is also strongly indicative of Mr Ng’s intent to make a record of the victim (which he also did eventually make): Nicholas Tan at [78];

(c)     third. the defence has contended the lack of sophistication in the manner in which Mr Ng had committed the offence. But what he lacked in sophistication, Mr Ng certainly made up in sheer doggedness and persistence in offending, as is evident from the manner in which he had committed the offence that were captured on video by his colleague. As can be seen, he went to great lengths to position his mobile phone underneath the victim’s dress with great furtiveness and without detection, and all the while climbing up the stairs behind her.

(d)     it is undisputed that the victim was neither stalked nor followed. Mr Ng was known to the victim and they shared a close working relationship. Indeed, the victim had willingly hitched a ride from Mr Ng on the day of the offence and was climbing the stairs with him to head to the office from the carpark. But as the prosecution has submitted, there is a serious breach of a relationship of trust in this case. The fact that an accused had abused his colleagues’ trust in filming upskirt videos at the workplace, especially where the victims could reasonably expect an environment of safety and mutual respect, is an aggravating factor: PP v Lau Zongming [2021] SGMC 71 at [56]. This applies with greater force in this case. Mr Ng and the victim are not peers or merely colleagues; Mr Ng had in fact perpetrated the offence as the victim’s direct superior against her at the workplace.

Issue 3(b): Upward and downward adjustments to starting point sentence

24     Adjustments to the starting point sentence are to be made to account for the aggravating presence of TIC charges and the mitigatory weight to be given to Mr Ng’s early indication of guilty plea.

Aggravating presence of TIC charges

25     To account for the aggravating presence of the two similar TIC charges, I apply an upward adjustment of two weeks’ imprisonment. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37]. Indeed, they are egregious because they establish a clear pattern of re-offending against the same victim for the same type of voyeurism offence. Specific deterrence therefore also applies in this case.

Mr Ng not to be regarded as first offender

26     Although Mr Ng does not have any prior convictions, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Hardship suffered as a result of offence and sentence not mitigatory

27     It is trite law that hardship suffered as a result of criminal conduct and being held accountable for such conduct carries little or no mitigatory weight. This is necessarily the outcome for engaging in criminal conduct and it is par for the course for any offender to bear the full brunt of the consequences that follow such conduct. It would otherwise be perverse to ameliorate the effects of criminal wrongdoing for which the offender is responsible in the very first place.

Full 30% reduction in sentence for early indication of guilty plea

28     Decidedly in Mr Ng’s favour is his early indication of guilty plea, for which I accord him the full 30% reduction in sentence, as recommended by the Sentencing Advisory Panel in its guidelines in this regard, because:

(a)     first, this is somewhat demonstrative of genuine remorse and contrition, which is generally consistent with:

(i)       his admission of wrongdoing to the company that led to the subsequent termination of his employment,

(ii)       his apology to the victim; and

(iii)       his cooperation with the authorities,

though this is militated by the fact that he was caught red-handed as the present offence was captured on video by a colleague; and

(b)     second, and more importantly, he has spared the victim of having to testify against him in a trial.

29     The final sentence to be imposed for Mr Ng’s voyeurism offence is therefore seven weeks’ imprisonment.

Issue 3(c): Application of case authorities

30     In support of its submission for a seven-day imprisonment term, the defence has argued that a downward calibration of the sentences in Nicholas Tan and Aung Myint [2023] SGMC 93 ought to be considered for the present case that seemingly features less egregious facts. I agree with the prosecution that a more nuanced application of relevant case authorities is called for through the specific dual lens of a breach of trust and similar TIC charges that are the two distinguishing features of the present case that set it apart from other cases.

Sentencing a fact-sensitive exercise encompassing determination of criminality in both quantitative and qualitative aspects

31     When embarking on the exercise of applying relevant case authorities, I sound the same caution as I did in PP v Andy Oie Zheng Jie [2024] SGDC 238 at [37]-[38] (which I reiterated in PP v Tan Boon Hiang [2024] SGDC 269 at [22]) about adopting too granular an exercise in this regard and over-emphasising linear quantitative proportionality over the qualitative criminality of the accused:

Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: [PP v Lim Beng Kim, Lulu [2023] SGDC 9] at [29].

It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Mr Ng’s overall qualitative criminality “changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases”: Andy Oie at [40], and the decisive factors in this regard, as correctly identified by the prosecution, are the serious breach of the relationship of trust and the aggravating presence of the two similar charges that point to a disturbing pattern of deliberate and targeted re-offending against the very same victim under his charge.

Conclusion

32     In summary, I sentence Mr Ng to seven weeks’ imprisonment on the voyeurism charge.

Aggregate sentence of seven weeks’ imprisonment imposed for voyeurism

33     The sentence is derived from:

(a)     a starting point sentence of eight weeks’ imprisonment, having assessed –

(i)       the level of harm to be at the lower end of the ‘low harm’ spectrum, and

(ii)       the level of culpability to be at the higher end of the ‘low culpability’ spectrum,

(b)     an upward adjustment of two weeks’ imprisonment to take into account the aggravating presence of the two similar TIC charges; and

(c)     the full 30% reduction in sentence for Mr Ng’s early indication of guilty plea.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – s 3(1) of Protection from Harassment Act 2014 – Community based sentencing"],"date":"2024-10-17","court":"District Court","case-number":"Magistrate's Arrest Case No 905290 of 2023 & another","title":"Public Prosecutor v Tan Shi-en Nicolette","citation":"[2024] SGMC 73","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32358-SSP.xml","counsel":["Sunil Nair and Mark Chia Zi Han (Attorney-General's Chambers) for the Prosecution","Sanjiv Rajan, Christine Tee, Wee Su-ann and Ignatius Koh (Allen & Gledhill LLP) for the Defence"],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Janet Wang","html":"Public Prosecutor v Tan Shi-en Nicolette

Public Prosecutor v Tan Shi-en Nicolette
[2024] SGMC 73

Case Number:Magistrate's Arrest Case No 905290 of 2023 & another
Decision Date:17 October 2024
Tribunal/Court:District Court
Coram: Janet Wang
Counsel Name(s): Sunil Nair and Mark Chia Zi Han (Attorney-General's Chambers) for the Prosecution; Sanjiv Rajan, Christine Tee, Wee Su-ann and Ignatius Koh (Allen & Gledhill LLP) for the Defence
Parties: Public Prosecutor — Tan Shi-En Nicolette

Criminal Procedure and Sentencing – Sentencing – s 3(1) of Protection from Harassment Act 2014 – Community based sentencing

17 October 2024

Judgment reserved.

District Judge Janet Wang:

Introduction

1       It was Friday afternoon in the eastern part of Singapore. The accused, a lawyer and an avid cyclist, was cycling along a road. Ow Elaine Michele (“Ow”), is a cooking instructor. She was driving towards a mall located along the same road to conduct a cooking class for children. The incident was triggered by Ow’s manner of driving, which culminated in a series of verbal exchanges and unravelling of the events that led to charges being brought against the accused and Ow for their transgressions.

2       The accused, Tan Shi-en Nicolette, a 33- year old female Singaporean, pleaded guilty to the following charge:

MAC-905290-2023

You are charged that you, on 2 June 2023, between 3pm to 3.30pm, at along East Coast Road, Singapore, with intent to cause harassment did use threatening behaviour towards one Ow Elaine Michele, to wit, by stopping your bicycle in front of her car, aggressively confronting her, and by slightly opening the door of her car, thereby causing her harassment and alarm, and you have thereby committed an offence under s 3(1)(a) of the Protection from Harassment Act 2014, punishable under s 3(2) of the same.

3       An offence under s 3(1)(a) of the Protection from Harassment Act 2014 may be punished with a maximum fine of $5,000, or with an imprisonment term which may extend to 6 months, or with both.

4       The accused consented to a charge of causing obstruction to Ow, as well as other drivers of the vehicles behind Ow’s vehicle in a public way under s 283 of the Penal Code 1871 to be taken into consideration for the purpose of sentencing. She is untraced.

5       Ow pleaded guilty to a charge of doing a rash act endangering the personal safety of the accused under s 336(a) of the Penal Code 1871. Her case is pending sentencing before me.

6       I sentence the accused to a five-day short detention order and set out my reasons below.

Background facts

7       The accused pleaded guilty to the Statement of Facts unreservedly. The salient facts are reproduced below:

1.    On 2 June 2023, just before 3.10pm, Ow was driving along Lane 3 of Still Road South in her car (“Ow’s car”). She was headed to the mall i12 Katong (“the mall”), where she was due to teach a cooking class at 3.30pm. At the same time, the accused was cycling along Lane 3 of the same road.

2.    At about 3.12pm, the accused and Ow entered the slip road turning left from Still Road South to East Coast Road. At the apex of the bend, once they were past the zebra crossing, the accused perceived that Ow’s car was too close to her and exclaimed, “Excuse me, watch it!”, which was audible from inside Ow’s car as her rear left window was partially open. Ow exited the slip road and drove for about 400m along East Coast Road until she stopped at the cross-junction of East Coast Road and Joo Chiat Road at about 3.13pm. She stopped in Lane 2 of East Coast Road. At all material times, her car remained in Lane 2.

3.    As Ow’s car stopped at a red light, the accused caught up with Ow’s car and stood in front of it to confront Ow and prevent her from driving away. The accused and Ow got into a verbal exchange. Throughout the exchange, the accused was in front of Michele’s car and Ow was in the driver’s seat of her car. Ow decided to leave the scene and reversed, as she wanted to change lanes to the right and pass the accused. The accused tracked her movement to position herself close to the front of Ow’s car, thus leaving Ow with insufficient space to safely drive off. Ow wound her window down and informed the accused that she was late for her class. Ow then reversed again, but the accused once again moved close to Ow’s car in response to leave her insufficient space to safely drive off.

4.    At this point, Ow again informed the accused that she had a class to get to and asked her to step aside. When the accused asked if Ow had heard what she said, Ow said she did and apologised.

5.    The accused moved towards the right of Ow’s car to move to the rightmost lane, saying to Ow “Your behaviour is embarrassing”, as she did so. Simultaneously, Ow moved slightly to the left to go around the accused. As Ow accelerated slightly forward, Ow’s car came into contact with the accused’s bicycle. The accused hit Ow’s car in response and shouted at Ow, “Excuse me, you just fucking hit my bike!” Parties got into another verbal exchange, which was more heated than the first.

6.    In the course of the exchange, at about 3.17pm, the accused opened the driver’s door of Michele’s car slightly before Michele shouted at the accused, “Don’t do that, don’t fucking touch my car!”. The accused then moved to the front of Michele’s car. Michele inched her car forward and stopped. Michele then alighted from her car and, while explaining that she had a class to get to, carried the accused’s bicycle to the pavement at the side of the road. As she was doing that, the accused called the police.

7.    As the accused was trying to call the police, she stood in the middle of Lane 2 and obstructed the road. She knew that by so doing, she would cause harassment to Ow as Ow wanted to drive away but could not safely do so. Ow reversed towards the right side of Lane 2, causing the cars behind to sound their horn. The accused followed by walking forward and continuing to block the path of Ow’s car.

8.    At about 3.19pm, as the accused was still standing in front of her car, Michele inched her car forward and stopped. When the accused still refused to stand aside, Ow moved her car forward slowly, causing her car to come into contact with the accused’s legs. As she was doing so, the accused asked, “What are you doing?” After several seconds of Ow moving her car forward and causing it to come into contact with the accused’s legs, the accused jumped on the bonnet of Ow’s car and lay on it.

9.    When she did so, Ow uttered “Ok” to herself and accelerated through the cross junction with the accused still lying on the bonnet. The traffic light was green in Ow’s favour. She drove for about 100m with the accused lying on her bonnet. Throughout the journey, the accused held on to one of Michele’s car’s windscreen wipers with her left hand and pounded on the windscreen with her right, screaming for Ow to stop.

10.    Ow only stopped after she had turned left into the entrance of the mall’s carpark. As she turned left and stopped, the accused slid off her bonnet and stood on the right side of the car, still holding on to the windscreen wiper. The accused was coaxed into letting go by passers-by who had witnessed the event.

11.    The interaction between Ow and the accused throughout the incident was recorded by the in-car camera in Ow’s car, as well as partly recorded by the camera affixed to the accused’s bicycle. The in-car camera footage was retrieved in seven parts. The bicycle camera footage was retrieved in three parts. The transcripts of audible speech from both footages are annexed herein.

12.    On the same day, at about 5.43pm, the accused visited Raffles Hospital. She was diagnosed by Dr Sharen Tian (“Dr Tian”) to have suffered muscle strains affecting her neck, shoulder, and right hip. On 3 June 2023, at a follow-up appointment, Dr Tian diagnosed her with muscular neck pain and soft tissue injury in her right thigh.

13.    On 4 June 2023, Bedok Police Division contacted the accused to give a statement. On 5 June 2023, the accused went down to Bedok Police Division. She was subsequently arrested at 7.10pm. She was produced in Court 4B and released on court bail on 6 June 2023 at 3pm.

14.    The accused stopped her bicycle in front of Ow’s car, aggressively confronted her, and opened the door of Ow’s car, thereby causing harassment to Ow. The accused used the aforesaid threatening behaviour with the intent to cause harassment to Ow.

Prosecution’s submissions on sentence

8       The prosecution submits that the custodial threshold is crossed in the present case, albeit marginally, and seeks a short detention order of a period to be determined by the court.[note: 1]

9       The prosecution highlights multiple aggravating factors.[note: 2] According to the prosecution, the accused was unnecessarily aggressive and provocative towards Ow for a perceived driving infraction committed against her. The accused persisted in her harassment of Ow, despite the latter’s apology and imploration, which contributed to the escalation of the events during the incident.

Defence submissions on sentence and mitigation plea

10     The defence argues that the custodial threshold is not crossed.[note: 3] The defence seeks a fine in the range of S$1,500 to S$2,000. In the alternative, the defence seeks a short detention order of one day.[note: 4]

11     The defence highlights the medical and mental conditions of the accused. According to Dr Goh Kah Hong, Clarence (“Dr Goh”) , a senior consultant psychiatrist, who first saw her before the incident on 3 March 2023, the accused has a long history of depression from 2008 to 2013. Dr Goh diagnosed her with adjustment disorder with depressed mood.[note: 5] The accused was subsequently diagnosed with major depressive disorder on 16 March 2023, when she was found to be moderately depressed. According to Dr Goh, there was improvement in her condition with lessening of her depressed mood on 15 May 2023.

12     According to the defence, the accused experienced shock and anxiety after the incident. She was diagnosed with acute stress reaction by Dr Goh on 5 June 2023, three days after the incident. As the accused person’s state of anxiety and hyperarousal persisted over a month after the incident, she was diagnosed with post-traumatic stress disorder. The accused subsequently presented with post-concussion syndrome and was diagnosed with intracerebral brain tumour three months after the incident. She underwent surgery to excise the brain tumour on 2 October 2023.[note: 6]

13     The defence further highlights the personal and familial circumstances of the accused, in particular, that she is a caregiver of her father who suffers from a neuro-degenerative disease and that of her late mother.[note: 7] The stress and grief from the caregiving and subsequent passing of her mother from lung cancer brought on her mental health issues. According to the defence, the accused resigned from her position at a law firm due to the present court proceedings and has met with challenges in procuring gainful employment in the legal industry. The accused is involved in volunteer work with an animal charity and cycling-related social initiatives. The defence adds that the accused cooperated fully with the authorities in their investigations.[note: 8]

The appropriate sentence

Deterrence as the dominant sentencing consideration

14     Deterrence is the dominant sentencing consideration in the present case. The following relevant factors, among other non-exhaustive factors, as identified in PP v Law Aik Meng [2007] 2 SLR (R) 814 at [24] - [25], would attract the sentencing principle of general deterrence, namely:

(a)     Offences affecting public safety, public security, public health or public services; and

(b)     Offences leading to public disquiet

These factors are demonstrably present. The present offence was committed on a public road on a weekday. Vehicular traffic was moderate to high. The accused person’s acts obstructed traffic and affected public safety. Her offending conduct triggered public disquiet and unease and thus warrants a deterrent sentence.

Whether the custodial threshold is crossed

15     The harm and culpability analysis is instructive in determining whether the custodial threshold is crossed. In this premise, two principal parameters are relevant in evaluating the severity of the offence, namely, (a) the harm caused by the offence, and (b) the accused person’s culpability. ‘Harm’ is the measure of the injury and the extent of the damage which has been caused to society by the commission of the offence, while ‘culpability’ is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act ( see PP v Koh Thiam Huat [2017] 4 SLR 1099 at [41]).

16     On the degree of harm that occasioned from the accused person’s role, I consider both actual and potential harm- see Koh Yong Chiah at [51]. By stopping her bicycle in the middle of a busy thoroughfare, the accused had placed herself in a precarious position that posed a significant risk to her safety. Apart from stopping in front of Ow’s vehicle, she moved over to the driver’s side of the vehicle, regardless of the oncoming traffic in the adjacent lane. The accused was observed to be weaving in between the stationary vehicles within two lanes. Her act of opening the door on the driver’s side of Ow’s vehicle in the middle of the road posed a hazard to the safety of the driver and the risk of potential damage to the vehicle. Equally relevant is the potential harm to other road users, namely, the motorists who were also travelling along the same two-lane dual carriageway. The accused person’s actions created a potential for significant harm, having regard to the considerable vehicular traffic at the material time. It is fortuitous that no accident involving personal injury and property damage occurred.

17     Turning next to the culpability of the accused. The accused was the aggressor in the entire episode. While Ow ought to have exercised due care and consideration towards the accused, a cyclist, by maintaining a margin of safety when passing and negotiating a bend in the road, the latter’s reaction was patently disproportionate. According to the defence, the accused did not speed up and had no intention of confronting Ow. It was at the cross junction when the accused stopped her bicycle in front of Ow’s vehicle to tell the latter that she had driven in an unsafe manner by overtaking the accused at the slip road.[note: 9] Pertinently, there was a break in the chain of events which took place at the slip road and the cross junction. The lapse in space and time lends support to the fact that the accused person’s subsequent display of aggression was totally unprovoked. A window of conciliation presented itself when the co-offender apologised. Short of being placated by Ow’s apology, the accused was obdurate in her relentless pursuit of Ow. Her aggression did not abate. She refused to let Ow leave and continued to block her path of travel, despite Ow’s entreaties. This led to the escalation of the events. Her culpability was heightened by her act of causing obstruction to Ow and the drivers of the vehicles that were behind Ow’s vehicle, which is the nub of the charge she has consented to be taken into consideration for the purpose of sentencing (PP v UI [2008] 4 SLR(R) 500 at [37]-[38]).

18     As a legal professional, the accused is well versed in the traffic rules and regulations. And it was precisely her perception of a traffic violation on Ow’s part that accounted for her confrontation with the latter. She had the presence of mind to call the police. However, the accused chose to remain in front of Ow’s vehicle to prevent her from fleeing the scene. It was a misplaced sense of vigilantism that went awry.

19     In support of a fine, the defence cites among others the cases of PP v Lim Keng Tat [2018] SGMC 80 (“ Lim Keng Tat ”) and PP v Chiang Kok Wee [2021] SGMC 36 (“ Chiang Kok Wee ”).[note: 10] Notably, both cases involved offences of intentionally causing harassment in a car park and fines were imposed. In Lim Keng Tat, the offender was a private-hire car driver who pleaded guilty to a charge of using abusive words with intent to cause distress under s 3 of the Prevention from Harassment Act. The offender made left turn into the car park without waiting at the stop line, which led to the victim sounding his horn and braking to avoid a collision. The offender stopped and stared briefly at the victim before he drove into the car park. Subsequently, both the vehicles passed each other in the car park. The offender stopped his vehicle near the victim’s and stared at him. A brief verbal argument took place between them. The victim subsequently drove off and parked his vehicle in a lot. Shortly thereafter, the offender alighted from his vehicle and walked towards the victim’s vehicle to confront him. During their argument, both parties used vulgarities towards each other. The offender hurled multiple Hokkien vulgarities of an insulting nature at the victim. At the material time, the victim’s wife and young child were present. The parties did not engage in physical contact. The offender committed the offence while he was under investigation for an earlier offence involving the use of criminal force. He further consented to a similar charge under s 3(1) of the Protection from Harassment Act to be taken consideration. The prosecution sought a high fine. The court imposed a fine of $2000. The victim was issued a warning for an offence under s 3(1) of the Protection from Harassment Act.

20     In Chiang Kok Wee, the offender pleaded guilty to a charge of intentionally causing alarm to another person by uttering abusive words under s 3 of the Protection from Harassment Act, and a charge of mischief under s 427 of the Penal Code (Cap 224, 2008 Rev Ed). A further charge under s 3 of the Protection from Harassment Act for the offence of using abusive words with intent to cause harassment was taken into consideration. With respect to the s 3 of the Protection from Harassment Act charge, the offender was driving into the car park of a condominium and attempted to turn into a one-way lane against the traffic flow. At the material time, the victim was walking in the middle of the one-way lane in the car park and had stood at the white line marking the end of the lane. The victim stood in front of the offender’s car to prevent the latter from entering the one-way lane from the wrong direction. The offender drove forward and attempted to turn into the lane again, only to be blocked by the victim. The offender alighted from his vehicle and confronted the victim. He uttered abusive words and verbal threats towards the victim. In imposing a fine of $4000, the court noted that the offender committed the offence while he was under investigations for the mischief charge.

21     The present facts are far more egregious. I agree with the prosecution that the accused had demonstrated a sustained pattern of aggressive behaviour towards Ow.[note: 11] She persisted in her harassment and harangue of Ow, despite the latter’s apology and repeated pleas. Her acts of aggression ran the gamut from deliberately placing her bicycle in front of Ow’s vehicle and obstructing her in her path of travel to opening Ow’s vehicle door in a threatening manner, alongside the utterance of harsh and abusive words, as reflected in the transcripts of the verbal exchanges that took place between the accused and Ow. These place her culpability at a higher level than that of the offenders in the above cited precedents involving an isolated occasion where abusive, threatening and insulting words were employed by the offenders. The incident took place on a weekday at the cross junction where the volume of vehicular and human traffic was considerably higher than that in the car parks. The accused person’s acts also affected the other road users travelling the same road. This in turn translates to a greater measure of harm. In light of these aggravating factors, the custodial threshold is breached.

Whether a short detention order is appropriate

22     A short detention order is a community-based sentence. This is prescribed in s 348 of the Criminal Procedure Code 2010 (“CPC”). Section 348 of the CPC provides as follows:

Short detention orders

348.—(1)    Where an offender who is 16 years of age or above is convicted of an offence, and if the court by or before which he or she is convicted is satisfied that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may make a short detention order requiring the offender to be detained in prison for a period which must not exceed 14 days.

(2)    Sections 317 and 318 apply to a short detention order as if the order were a sentence of imprisonment passed by the court.

23     The underlying legislative intent of community-based sentencing (“CBS”) can be found in the following passage in the Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at col 422 (K Shanmugam, Minister for Law and Second Minister for Home Affairs)):

CBS gives more flexibility to the Courts. Not every offender should be put in prison. CBS targets offences and offenders traditionally viewed by the courts to be on the rehabilitation end of the spectrum: i.e. regulatory offences, offences involving younger accused persons and persons with specific and minor mental conditions. For such cases, it is appropriate to harness the resources of the community. The offender remains gainfully employed and his family benefits from the focused treatment.

While the primary focus of CBS is rehabilitative, community sentences are ultimately punitive. It was emphasised by the Minister that it is not the primary objective of community sentences to prevent moral stigmatisation (at col 568). As noted by the Minister, the short detention order, being limited to a maximum period of 14 days, is less disruptive and stigmatising than a longer prison stay (at col 426). Pursuant to s 7DA of the Registration of Criminals Act 1949, an offender’s criminal record is rendered spent on the date of completion of the community sentence.

24     In Sim Wen Yi Ernest v PP [2016] 5 SLR 207 (“Sim Wen Yi Ernest”) at [33], it was recognised that CBS options were introduced to afford greater flexibility to the courts in balancing the various sentencing principles in individual cases. The court further noted that a short custodial sentence in the form of a SDO carries a punitive and deterrent element (Sim Wen Yi Ernest at [42] – [44]). Similarly, it was observed in PP v Teo Chang Heng [2018] 3 SLR 1163 (“Teo Chang Heng”) at [17], that a short detention order has the resultant effects of the offender spending time behind bars for his misdeeds as punishment and signalling that what he did was serious and he is not being let off scot-free. The court reiterated that community sentences are ultimately punitive. The offender will be incarcerated and deprived of his liberty as a consequence of a short detention order (Teo Chang Heng at [13]- [15]).

25     In Teo Chang Heng, the offender pleaded guilty to a charge of mischief under s 426 of the Penal Code (Cap 224, 2008 Rev Ed). He deliberately caused damage to his spouse’s vehicle which was being driven by the boyfriend of his spouse at the material time. The accused had helped maintain the upkeep of the said vehicle. It transpired that the offender was angered upon the sight of his spouse’s boyfriend driving the said vehicle. He then drove past the vehicle and side-swiped it. When the driver stepped out onto the pavement to inspect the damage caused, the offender collided into the vehicle from behind. No personal injuries were caused. Neither were other vehicles affected. The offender immediately called the police and surrendered. He paid for the vehicle damage that resulted from the collision. In affirming the sentence of a ten-day short detention order and 120-hour community service order, the appellate court stated at [15] that a short detention order carries a punitive element and is inherently capable of deterring.

26     The case of Teo Chang Heng is loosely characterised by the court as a “manifestation of road rage” as the offender was provoked into a rage at the sight of his spouse’s boyfriend in her vehicle that he helped to upkeep.[note: 12] The appellate court observed that there was no compelling evidence to suggest that the respondent was potentially a menace to other road users and had inflicted or sought to inflict physical harm or bodily injury on them, as his aggression was targeted specifically at the driver and mostly at the car (at [10]). Unlike Teo Chang Heng, the “textures and nuances” of the present case are materially different (Teo Chang Heng at [8]). By her act of stopping in front of Ow’s car at the cross-junction, the accused caused obstruction to the other drivers in the vehicles behind Ow’s. She next moved to the driver’s side of Ow’s car and thus encroached on the adjacent lane with its oncoming traffic, causing the other road users to avoid her and her bicycle, in order to avert an accident. Her aggression exacerbated with her act of opening the driver’s door of Ow’s vehicle, which posed a safety hazard to other road users travelling on the adjacent lane. It is pertinent to note that unlike the offender in Teo Chang Heng, who did not infringe any other traffic rules and was not charged for any other offences involving bad driving, the accused faces another charge of causing obstruction to Ow and other drivers travelling behind Ow’s vehicle in a public way, which charge she has consented to be taken into consideration for the purpose of sentencing.

27     The present case bears more elements of road rage than Teo Chang Heng’s. In Teo Chang Heng, the driver of the car was known to the offender. His aggression was specifically targeted at the driver, who was his spouse’s boyfriend. He had used his vehicle to inflict damage on his spouse’s car out of personal vendetta and jealousy. In the present case, Ow was a complete stranger to the accused. Her display of vitriol stemmed from her unhappiness with Ow’s manner of driving and use of the road, which is a common background of most road rage cases.

Accused mental and medical conditions

No causal or contributory link

28     I next address the issue of whether the accused person’s condition of major depressive disorder and the presence of the brain tumour had caused or contributed to her offending behaviour.

29     The case of Lim Ghim Peow v PP [2014] 4 SLR 1287 (“ Lim Ghim Peow”) is instructive, where the Court of Appeal affirmed the approach in the High Court case of Ng So Kuen Connie v PP [2003] 3 SLR(R) 178 (“Connie Ng”), namely, where an offender is suffering from a mental disorder at the time of the offence, particularly if the mental disorder is causally related to the offence, the element of general deterrence may be given considerably less weight (Lim Ghim Peow at [26] ). The approach which our courts have adopted can be found in Connie Ng at [58]:

… [T]he element of general deterrence can and should be given considerably less weight if the offender was suffering from a mental disorder at the time of the commission of the offence. This is particularly so if there is a causal link between the mental disorder and the commission of the offence. In addition to the need for a causal link, other factors such as the seriousness of the mental condition, the likelihood of the [offender] repeating the offence and the severity of the crime, are factors which have to be taken into account by the sentencing judge. In my view, general deterrence will not be enhanced by meting out an imprisonment term to [an offender] suffering from a serious mental disorder which led to the commission of the offence.

While the existence of a mental disorder on the part of the offender is always a relevant factor in the sentencing process, the manner and extent of its relevance depends on the circumstances of each case, in particular, the nature and severity of the mental disorder. The Court of Appeal in Lim Ghim Peow clarified that the element of general deterrence may still be accorded full weight in some circumstances, such as where the mental disorder is not serious or is not causally related to the commission of the offence, and the offence is a serious one.

30     In his medical report of 12 September 2023, Dr Goh opined that “there is no definite and specific causal relationship” between the accused person’s illnesses and the incident. According to Dr Goh, the accused was diagnosed with major depressive disorder on 16 March 2023. He noted an improvement in her mental condition after two months on 15 May 2023. On her request, Dr Goh scheduled a further review at a later date in four months. In respect of the brain tumour, Dr Goh indicated that the onset of the tumour could not be determined but postulated the likelihood of it predating the incident. According to him, the influence of the brain tumour on the accused person’s behaviour at the material time was highly probable, given the location of the tumour in the left front region of the brain, which “ may lead to personality changes, disinhibition, and impairment of judgment ”.[note: 13] [emphasis added]

31     It is patent from Dr Goh’s report that there was no causal or contributory connection between the accused person’s mental condition and brain tumour and the commission the offence.

32     However, I find his qualification on the influence of the brain tumour on the accused person’s behaviour at the material time to be tenuous. Pertinently, his medical report is silent on whether there were actual clinical findings of impairment in the accused person’s judgment and marked changes in her personality, as well as disinhibition, in support of his contention. On the contrary, Dr Goh reported the accused as having the ability to work and engage in activities with her husband. Notably, these were communicated by the accused during the consultations leading up to the incident. Coupled with the fact that the accused was gainfully employed as a lawyer at the material time, I am not persuaded that the presence of the brain tumour had impaired her cognitive function and judgment in her professional capacity. Neither did it cause functional impairment. It is noteworthy that at the time of the incident, the accused was able to ride her bicycle and navigate the roads without difficulty. The presence of the brain tumour did not appear to have dented the quality of her life and prevented her from carrying out her daily and recreational pursuits. She was in full control of her faculties and had the presence of mind to call the police to report on Ow’s manner of driving.

33     It further bears noting that Dr Goh’s medical expertise lies in the field of psychiatry and not neurology and its related area of neurosurgery. He acknowledged in his report that the accused would likely require neurosurgery to treat the brain tumour, which she did eventually undergo. Accordingly, his views on how the presence of the brain tumour could have influenced her behaviour at the material time and was a possible contributory factor in her commission of the offence are tentative and ambiguous: see Toh Suat Leng Jennifer v PP [2022] 5 SLR 1075 at [27].

34     Similarly, the medical report of 30 December 2023 by Dr Ivan Ng Hua Bek (“Dr Ng”) is silent on the effects of the brain tumour on the behaviour of the accused. Dr Ng, a senior consultant neurosurgeon, first saw the accused after the incident on 1 August 2023. He next saw her on 7 August 2023 when she presented with symptoms of near-blacking out episodes, dizziness and the inability to focus. The accused was diagnosed with a cluster of lesions in the left frontal lobe. According to Dr Ng, the brain tumour was likely to have been present for a period of time. The accused subsequently underwent surgery of the brain tumour, which was found to be benign. Dr Ng opined that given the position of the tumour, “ it may be possible that this could lead to issues of cognitive function and executive brain functioning that could lead to her behaviour leading up to the accident”.[note: 14] [emphasis added]

35     To my mind, these are mere suggestions. In the absence of clinical findings and established medical literature, these are ambiguous and fail to establish a clear causal or contributory link between the brain tumour and her commission of the offences. Given the lack of clarity in their medical reports, I directed further clarification to be obtained from the doctors.

36     In their further clarificatory medical reports, it is pertinent to note that the doctors did not definitively state that there was direct causal or contributory link between the accused person’s conditions, namely, the brain tumour and major depressive disorder and the present offences.

37     In his further report of 1 July 2024, Dr Ng clarified that while it was possible that the presence of the brain tumour contributed to her commission of the offence, it was unlikely. He added that the possibility of this leading to her offending behaviour was less than 50%.[note: 15]

38     Dr Goh maintained in his further report of 20 June 2024 that there was no definite and specific causal relationship between the accused person’s major depressive disorder and brain tumour and the incident. He was unable to state quantitatively the likelihood of the influence of the brain tumour on her behaviour at the material time occurring.[note: 16] Dr Goh further relied on an article in the following medical journal: World Journal of Psychiatry - Psychiatric aspects of brain tumours: A review. Of particular relevance is the following passage in the journal article:

“Brain tumours as the primary cause of psychiatric symptoms are a rare occurrence. The rarity of this condition, insidiousness of the disease process, vague of signs pointing to several causative factors all contribute to the diagnostic challenges. Diagnosis of psychiatric symptoms being secondary to brain tumours starts from having the clinical suspicion…”[note: 17]

[emphasis added]

On this note, I observe that Dr Goh did not allude to such clinical suspicion as the presence of brain tumour being the primary cause of the accused person’s psychiatric symptoms in his medical report. The accused was diagnosed with brain tumour in the left frontal lobe of the brain on 5 September 2023. Dr Goh was apprised of the diagnosis subsequently. He was unable to ascertain the onset of the brain tumour, but opined that it likely predated the incident on 2 June 2023. Any clinical suspicion of the presence of a brain tumour had eluded him over the course of his examination of the accused leading up to the incident.

39     In my view, these clarifications only serve to reiterate the lack of causal link between the accused person’s mental condition and brain tumour and the commission of the offence. Accordingly, the element of general deterrence must be accorded full weight in these circumstances.

40     Notably, the defence concedes the absence of contributory link between the accused medical condition and her offending conduct.[note: 18] The defence further acknowledges that her medical and mental health conditions do not absolve her of liability.[note: 19] Nonetheless, the defence maintains that the custodial threshold is not crossed and seeks a fine in the range of $1500 to $2000.[note: 20]

Offender specific factors

41     To her credit, I note in her favour the accused person’s early plea of guilt and her full cooperation with the authorities during the investigations, coupled with her clean record. However, in the light of overwhelming evidence presented in the camera footages, alongside the public disquiet triggered by the publicity generated from the theatrics of the accused and Ow on a public road, the plea of guilt is a Hobson’s choice for the accused. This is akin to being caught red-handed. As observed by the High Court in Public Prosecutor v Tan Fook Sum [1999] 1 SLR(R) 1022 at [33], there is no mitigating value in a plea of guilt if the offender pleaded guilty in circumstances knowing that the prosecution would have no difficulty proving the charge against him; or if he had been caught red-handed. In this regard, her guilty plea is attenuated.

42     I am mindful of the injuries sustained by the accused when she rode on the bonnet of Ow’s moving vehicle. She was diagnosed with muscular neck strains affecting her neck, shoulder and righ hip, as well as muscular neck pain and soft tissue injury in her right thigh.[note: 21] Notably, these injuries were of a minor nature and did not require invasive medical intervention. She was treated conservatively. According to Dr Ng, the accused likely suffered a post-concussion syndrome from an acceleration-deceleration injury of the brain with associated mild whiplash injury and was treated symptomatically.[note: 22] She further developed acute stress disorder from the incident, which diagnosis was changed to one of post-traumatic stress disorder owing to the subsistence of her symptoms of anxiety, panic attack and hypervigilance, as well as her heightened state of irritability and frustration.[note: 23] However, these are of limited mitigating weight. While Ow was not without blame, the accused was in large part responsible for her plight. She was the aggressor from the outset and throughout the incident. By her actions, the accused put herself in harm’s way. She was an author of her own misfortune.

43     While I note with empathy the personal circumstances of the accused, I observe that her medical and mental conditions did not impair her capacity to engage constructively as a legal professional prior to the incident. Neither do these conditions curtail her ability to carry out her daily activities including cycling. Her involvement in charity and volunteer work is commendable. Regrettably, the accused did not extend a modicum of that goodwill and charity shown towards her fellow cyclists and animals to a fellow road user. The glare of public security that is brought to bear on the accused is an inevitable consequence attendant on her actions. It is settled law that such hardship bears little, if any, mitigating value, except in the most exceptional circumstances: Lai Oei Mui Jenny v PP [1995] 2 SLR (R) 406 at [11]; PP v Yue Mun Yew Gary [2013] 1 SLR 39 at [67]-[68]. Citing these cases in Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [75], Sundaresh Menon CJ observed that “each case will have to be decided on its own facts”, but added that “the threshold is a very high one”.

44     Contrary to the parties’ submissions, I find the circumstances leading to the commission of the offences to be far from unique. The accused and Ow had exhibited anti-social and disruptive behaviour on a public road. Both women conducted themselves dismally. Ascribing such positive a label as “unique” to criminal acts has the undesirable effect of downplaying the severity of the offences and distorting the reality of the situation. As observed from the extensive video footage captured on the cameras, the incident resulted from a confluence of irresponsible driving and inconsiderate use of the road by both the accused and Ow.

45     In her brazen act of confronting Ow over what she perceived to be a traffic infraction and an affront to her personal safety, the accused was equally guilty of violating traffic rules and exposing herself to the risk of potential harm to her personal safety and that of other road users by obstructing public traffic. The paradox is stark. Her behaviour cannot be condoned.

46     The defence seeks a short detention order of one day in the alternative. Despite having left the length of the short detention order to the court, the prosecution did not object to the defence submission.

47     In my view, a one-day short detention period is a proverbial slap on the wrist. The accused has spent a day in remand during the investigations.[note: 24] The remand period, when considered in sentencing pursuant to s 318(5) of the Criminal Procedure Code 2010, will render nugatory a detention period of one day. The deterrent effect of a custodial sentence is blunted.

48     Taking account of the period of one day in which the accused spent in custody, I calibrate the length of the short detention order accordingly (see Vasentha d/o Joseph v PP [2015] 5 SLR 122 (“Vasentha”) at [86]).

Conclusion

49     For these reasons, I am fortified in my view that a five-day short detention order will adequately meet the interests of deterrence, while not being crushing.

50     Finally, I thank the parties for their helpful submissions in this matter.

[note: 1]Prosecution’s address on sentence at [2] and [6]-[8]

[note: 2]Prosecution’s address on sentence at [3]-[5];Prosecution’s reply to mitigation at [9] and [11]

[note: 3]Plea of mitigation, pp 18 -20

[note: 4]NE Day 1 (17 April 2024), p 20, lines 1-2

[note: 5]Annex D, Plea of mitigation

[note: 6]Plea of mitigation at [36]-[38]

[note: 7]Plea of mitigation, pp 4-6

[note: 8]Plea of mitigation at [45]

[note: 9]Plea of mitigation, pp 10-11

[note: 10]Plea of mitigation , Annex F- Table of sentencing precedents

[note: 11]Prosecution’s reply to mitigation at [9]-[11]

[note: 12]See Teo Cheng Heng at [10]

[note: 13]See Annex D, Plea of mitigation

[note: 14]Annex E, Plea of mitigation, pp 34-35

[note: 15]Annex A, Defence Further Submissions, p 11

[note: 16]Annex B, Defence Further Submissions, p 15

[note: 17]Annex B, Defence Further Submissions, p 34

[note: 18]Defence Further Submissions at [10]; see also NE (10 July 2024), p 3, lines 25-29

[note: 19]Plea of mitigation at [52]

[note: 20]Defence Further Submissions at [11]-[17]

[note: 21]SOF at [14]; see also medical report dated 17 July 2023

[note: 22]Annex E, Plea of mitigation, p 34

[note: 23]Annex D, Plea of mitigation, p 30

[note: 24]SOF at [15]

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Public Prosecutor v Brendan Ho Jun Jie
[2024] SGDC 271

Case Number:District Arrest Case No. 911859 of 2022 & 3 Others, Magistrate's Appeal No. 9140 of 2024-01
Decision Date:17 October 2024
Tribunal/Court:District Court
Coram: Brenda Chua
Counsel Name(s): Jonathan Tan Hoe En (Attorney-General's Chambers) for the Public Prosecutor; Hua Yew Fai Terence (Rex Legal Law Corporation) for the Accused.
Parties: Public Prosecutor — Brendan Ho Jun Jie

Criminal Law – Offences – Penal Code

Criminal Law – Statutory offences – Massage Establishments Act

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9140/2024/01.]

17 October 2024

District Judge Brenda Chua:

Introduction

1       The accused person, Brendan Ho Jun Jie, claimed trial to the following charges (“the CT Charges”):

DAC-911859-2022 (“the First CT Charge”)

You…are charged that you, on 21 occasions between 24 January 2020 and 24 April 2020, in Singapore, did cheat Citibank Singapore (“Citibank”), by deceiving Citibank into believing that you were authorised to make payment using the following credit card details, which fact you knew this to be false,

Type of Information

Details

Registered customer

Chan Weng Shi

Issuing bank

Citibank Singapore

Payment network

VISA

Card number

[redacted] 4422



and by such manner of deception, you dishonestly induced Citibank to deliver property to you, to wit, a total sum amounting to S$2,444.74, which sum was used to fund 21 separate transactions with Rely Singapore, Farfetch UK Ltd and Farfetch London, and Deliveroo Singapore, which transactions are summarized at Annex A to this charge, and which sum Citibank would not have done delivered had it not been so deceived, which 21 occasions taken together amount to a course of conduct, and you have thereby committed an offence punishable under Section 420 of the Penal Code (Cap 224, Rev Ed 2008), which is an amalgamated charge pursuant to Section 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC.

Annex A

S/N

Date of transaction

Details of transaction

Vendor

Amount

1.

24 January 2020

Second instalment for 1st Secretlab chair (Order ID 46903)

Rely Singapore (“Rely”)

S$154.69

2.

3 February 2020

Third instalment for 1st Secretlab chair (Order ID 46903)

Rely

S$154.69

3.

25 February 2020

Third[note: 1] instalment for 2nd Secretlab chair (Order ID 51020)

Rely

S$184.66

4.

9 March 2020

Bottega Veneta midnight calf leather wallet

Farfetch UK

S$623.00

5.

10 March 2020

Adidas Black Noir Recycled Polyester Cotton pants

Farfetch London

S$284.00

6.

15 March 2020

Off-White Black Beige Cotton top

Farfetch London

S$397.00

7.

13 April 2020

Moschino Black Polyester bag

Farfetch London

S$171.00

8.

17 April 2020

Logo Badge holder

Farfetch London

S$205.00

9.

3 March 2020

Sinn Ji Hainanese Chicken Rice

Deliveroo Singapore (“Deliveroo”)

S$22.99

10.

4 March 2020

Pizza Hut – Toa Payoh

Deliveroo

S$41.09

11.

7 March 2020

Burger King – Kitchener Complex

Deliveroo

S$14.99

12.

9 March 2020

Boon Tong Kee – Balestier

Deliveroo

S$18.72

13.

9 March 2020

Boon Tong Kee – Whampoa

Deliveroo

S$18.47

14.

14 March 2020

Yishun 925 Chicken Rice (Potong Pasir)

Deliveroo

S$15.49

15.

18 March 2020

Burger King – Kitchener Complex

Deliveroo

S$14.99

16.

18 March 2020

Boon Tong Kee – Balestier

Deliveroo

S$14.99

17.

23 March 2020

Yishun 925 Chicken Rice (Potong Pasir)

Deliveroo

S$17.09

18.

16 April 2020

Chicken Rice Box for 2

Deliveroo

S$22.93

19.

17 April 2020

Chicken Rice Box for 2

Deliveroo

S$23.13

20.

22 April 2020

Chicken Rice Box for 2

Deliveroo

S$23.13

21.

24 April 2020

Boiled Chicken Rice – 1 Person Set

Deliveroo

S$22.69

Total amount

S$2,444.74



DAC-911860-2022 (“the Second CT Charge”)

You…are charged that you, on 7 occasions between 30 April 2020 and 4 June 2020, in Singapore, did attempt to cheat Citibank Singapore (“Citibank”), by deceiving Citibank into believing that you were authorised to make payment using the following credit card details, which fact you knew this to be false,

Type of Information

Details

Registered customer

Chan Weng Shi

Issuing bank

Citibank Singapore

Payment network

VISA

Card number

[redacted] 4422



and by such manner of deception, you attempted to dishonestly induce Citibank to deliver property to you, to wit, a total sum amounting to S$161.63, which sum you intended to use to fund 7 separate transactions with Deliveroo Singapore, which transactions are summarized at Annex B to this charge, which 7 occasions taken together amount to a course of conduct, and you have thereby committed an offence punishable under Section 420 read with Section 511 of the Penal Code (Cap 224, Rev Ed 2008), which is an amalgamated charge pursuant to Section 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC.

Annex B

S/N

Date of transaction

Details of transaction

Vendor

Amount

1.

30 April 2020

Sinn Ji Hainanese Chicken Rice – 2 Set-Meal

Deliveroo

S$23.69

2.

4 May 2020

Burger King – Kitchener Complex – Double Mushroom Swiss Meal

Deliveroo

S$14.69

3.

4 May 2020

Boon Tong Kee – Balestier – Chicken Rice Box for 1

Deliveroo

S$15.69

4.

5 May 2020

Boon Tong Kee – Balestier – Chicken Rice Box for 1

Deliveroo

S$16.69

5.

13 May 2020

Sinn Ji Hainanese Chicken Rice – Roasted Chicken Rice – Boiled Chicken Rice

Deliveroo

S$43.69

6.

4 June 2020

Loy Kee Best Chicken Rice – Loy Kee Premium Set Menu

Deliveroo

S$23.59

7.

4 June 2020

Loy Kee Best Chicken Rice – Loy Kee Premium Set Menu

Deliveroo

S$23.59

Total amount

S$161.63



2       I convicted the accused on the CT Charges at the trial’s conclusion.

3       The accused pleaded guilty to the following charge:

MAC-905411-2022 (“the PG Charge”)

You…are charged that you, on 11 January 2021, at about 2.40 p.m., being the licensee (licence no. L/ME/000712/2020 dated 27 August 2020) of Imperial Apple Spa, an establishment for massage located at 6 Handy Road #01-01 The Luxe, Singapore, failed to ensure that your employee one Yi Jin Hua (“Yi”) did not offer to provide any sexual service to any other individual in the course of her employment at Imperial Apple Spa, to wit, by failing to ensure that Yi did not offer masturbation services to one Tan Bak Chye for S$50/-, and you have thereby committed an offence under Rule 12(1)(a) of the Massage Establishments Rules 2018 (Act 45 of 2017, S 96/2018) (“MER”) and punishable under Rule 12(2) of the MER.

4       There was another charge which was taken into consideration for the purpose of sentence for an offence under section 13(1) of the Massage Establishments Act 2017 (Act 45 of 2017) (“MEA”) and punishable under section 13(3) of the MEA.

5       For the First CT Charge, I sentenced the accused to an imprisonment term of ten months. For the Second CT Charge, I sentenced the accused to an imprisonment term of two weeks. For the PG Charge, I sentenced the accused to a fine of $2,000 in default one week’s imprisonment. I ordered the sentences for the First CT Charge and the Second CT Charge to run concurrently. The global sentence was an imprisonment term of ten months and a fine of $2,000 in default one week’s imprisonment. The fine was paid on 19 July 2024. No backdating of sentence was needed, as confirmed in court by both the prosecution and the defence counsel.

6       Pursuant to section 359 of the CPC, I ordered the accused to pay compensation of $2,444.74 to Chan Weng Shi (“Chan”) (PW4) in respect of the First CT Charge, in default one week’s imprisonment.

7       The accused is presently on bail pending appeal. The accused appealed against the conviction of the CT Charges. The defence counsel confirmed that the accused was not appealing against any of the sentences imposed or the global sentence imposed. The execution of the imprisonment term and payment of compensation was stayed pending appeal. I set out below the reasons for my decision only in respect of the accused’s appeal against the conviction of the CT Charges.

Facts that were not disputed

8       The Statement of Agreed Facts (“ASOF”) recorded the accused as a 28-year-old male Singaporean (NRIC No. SXXXX248H[note: 2] (“the accused’s NRIC”), DOB 27-07-1994). The accused resides at [redacted] Pasir Ris Drive 1 [redacted] Singapore [redacted] (“Residential Address”). His handphone number is [redacted] (“Handphone Number”). The accused used two email accounts: rakion_xxxx@hotmail.com (“Hotmail”) and br3ndanxxx@gmail.com (“Gmail”). The following facts were undisputed.

9       At the material time, the accused was working as a Personal Assistant to the Director and Co-Founder of Boogle Group Limited (“Boogle”). Boogle was located at 62 Bendemeer Road, Singapore (“the Office Address”) at the units #02-00, #06-00 and #07-00 (“the Level 7 Office Unit”).

10     The complainant, Chan, a 69-year-old male Singapore citizen, was the authorised holder of the Citibank credit card ending with 4422 (“Chan’s Card”). On 28 April 2020, Chan received an SMS from Citibank stating that an amount of S$1,758.81 was due on Chan’s Card. Chan realised that there were unauthorised charges between January 2020 and April 2020, and made a police report dated 28 April 2020 (“Chan’s Police Report”) (Exhibit P5).

11     The accused possessed various debit and credit cards issued by DBS, namely: ending with 5801 (“the accused’s 5801 Card”), ending with 9098 (“the accused’s 9098 Card”), ending with 5549 (“the accused’s 5549 Card”), ending with 6867 (“the accused’s 6867 Card”) and ending with 2051 (“the accused’s 2051 Card”) (Exhibit P6).

First CT Charge – Transactions involving Rely Singapore (“Rely”)

12     Rely is a payment service provider which allows payment for orders through instalments. On 1 December 2019, the accused registered an account with Rely (“the Rely Account”) using his full name, Residential Address, Hotmail, and the accused’s 6867 Card (Exhibit P7).

13     Two orders were made using the Rely Account in December 2019:

(a)     On 1 December 2019, a Secretlab chair for S$464.07 was ordered and delivered to the Level 7 Office Unit, with payment to be made by three interest-free instalments of S$154.69 each (Order ID 46903) (“Chair 1”).

(b)     On 25 December 2019, a Secretlab chair for S$554.00 was ordered and delivered to the Residential Address, with payment to be made by three interest-free instalments of S$184.66 each (Order ID 51020) (“Chair 2”).

14     On 23 January 2020, the payment method for the Rely Account was changed to Chan’s Card. In fact, the second instalment for Chair 1 had been overdue. A message was sent from the Rely Account to inform the support team to update the payment method to Chan’s Card, and further instruction was given for them to deduct the overdue second instalment (“the Rely Message”) (Exhibit P12):

“Rakion xxxx Jan 23 2020 23:00

i    have just updated my payment method is it possible to deduct my installment payment from my updated card”

15     Between 23 January 2020 and 25 February 2020, Rely charged a total of S$494.04 to Chan’s Card for the outstanding instalments for Chair 1 and Chair 2 (Exhibit P13):

 

Chair 1

Chair 2

First payment

1 Dec 2019/ S$154.69

[the accused’s 6867 Card]

25 Dec 2019/ $184.66

[the accused’s 6867 Card]

Second payment

24 Jan 2020/ S$154.69

4422 [Chan’s Card]

23 Jan 2020/ S$184.64

[the accused’s PayNow]

Third payment

3 Feb 2020/ S$154.69

4422 [Chan’s Card]

25 Feb 2020/ S$184.66

4422 [Chan’s Card]

Total sum paid

S$464.07

S$554



First CT Charge – Transactions involving Farfetch UK Ltd/ Farfetch London (“Farfetch”)

16     Farfetch is an online luxury fashion retail platform. On 9 March 2020, a Farfetch account was registered under Chan’s name (‘Weng shi Chan’) (“the Farfetch Account”). However, the personal details given were Gmail and the Handphone Number.

17     Between 9 March 2020 and 17 April 2020, the Farfetch Account incurred a total of S$1,680.00 in charges on Chan’s Card for the purchase of five items from Farfetch (Exhibit P14). In this regard:

(a)     The items were delivered to the Residential Address which was the billing address and the shipping address.

(b)     Chan’s name was used for the billing address, while a pseudonym (‘Br3ndan Hjj’) was used for the shipping address.

First CT Charge – Transactions involving Deliveroo Singapore (“Deliveroo”)

18     Deliveroo is a company that runs an online food delivery platform. On 31 January 2020, an account was registered with Deliveroo using the accused’s name (‘Brendan Ho’) (“the Deliveroo Account”). The details given were Gmail, the Handphone Number and the Level 7 Office Unit (Exhibit P15).

19     Between 3 March 2020 and 24 April 2020, 13 food orders totalling S$270.70 were made from the Deliveroo Account and charged to Chan’s Card. All 13 food orders were delivered to the Level 7 Office Unit.

Second CT Charge

20     Sometime on 28 April 2020, Chan’s Card was terminated. Between 30 April 2020 and 4 June 2020, attempts were made from the Deliveroo Account to place seven further food delivery orders and charge them to Chan’s Card. All seven attempted food delivery orders were indicated to be delivered to the Level 7 Office Unit.

21     Given the termination of Chan’s Card, the seven attempted food delivery orders were cancelled. In some cases, the accused’s 9098 Card was used to fulfil the orders instead. The total amount involved in the seven attempted food delivery orders was S$161.63.

Other information

22     The accused made two police reports on 19 August 2019 (“the First Police Report”) (Exhibit P16) and 27 May 2022 (“the Second Police Report”) (Exhibit P17). Two statements were taken from the accused on 5 November 2020 (“the First Statement”) (Exhibit P18) and 20 January 2022 (“the Second Statement”) (Exhibit P19). The accused did not object to their admission.

Case for the prosecution

23     For the First CT Charge, the accused had dishonestly induced Citibank to deliver property amounting to S$2,444.74. To make out an offence under section 420 of the Penal Code (Cap 224, 2008 Rev Ed), there are three key elements outlined in Ong Tiong Poh v Public Prosecutor [1998] 2 SLR(R) 547 at [18] which applied to this case:[note: 3]

(a)     The accused deceived Citibank into believing that he was authorized to make payment using Chan’s Card, which fact he knew to be false;

(b)     By such manner of deception, the accused induced Citibank to deliver property to him; and

(c)     The accused did so dishonestly.

24     First, by providing Chan’s Card for the various transactions, the accused deceived Citibank into believing that he was authorised to make payment using Chan’s Card, which fact he knew to be false. The prosecution submitted that a charge could be proven based on the cumulative effect of circumstantial evidence “which leads to the irresistible conclusion that it was the accused who committed this crime”: Ang Sunny v Public Prosecutor [1965-1967] SLR(R) 123 (at [13] to [14]).[note: 4] In this case, the circumstantial evidence was overwhelming.

25     The accused’s personal details like his name, residential/office addresses, email address, handphone number were associated with the various purchases that he made. Further, all the purchases and food orders were either made to the Office Address or the Residential Address.[note: 5] The use of Chan’s Card also coincided with the accused’s mounting financial liabilities beginning in December 2019. These showed the accused’s motive (financial difficulty), the accused’s digital fingerprint (use of personal accounts) and the accused’s personal benefit (receipt of unauthorised purchases). There was no other evidence pointing to any other third-party involvement.[note: 6]

26     Second, by such manner of deception, the accused induced Citibank to deliver property amounting to S$2,444.74 to him. Lai Jingyang Caleb (“Lai”) (PW3), a Citibank representative, testified that Citibank would not allow transactions to be performed on a credit card by a third party without authorisation.[note: 7]

27     Third, the accused did so dishonestly. Section 24 of the Penal Code states:

“Dishonestly”

24.    A person (A) is said to do an act dishonestly if —

(a)    A does that act with the intention of causing wrongful gain to A or another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent; or

(b)    that act done by A is dishonest by the ordinary standards of reasonable and honest persons and A knows that that act is dishonest by such standards.

28     The prosecution submitted that the accused performed the unauthorised transactions using Chan’s Card intending to cause wrongful gain to himself, given that he received and/or retained the items purchased. The accused’s claim that he disposed of the items was ridiculous. Further, performing unauthorised transactions using someone else’s credit card was dishonest by ordinary standards, and the accused knew that such an act was dishonest. Also, unauthorised transactions were termed by the accused in the Second Statement as “fraudulent transactions”.[note: 8]

29     For the Second CT Charge, section 511(1) of the Penal Code provides that to establish an attempt to commit an offence under section 420 of the Penal Code, the accused must have had the intention of committing that offence and taken a substantial step towards the commission of that offence.[note: 9] The key focus was on the criminality of the intended act. The Court of Appeal in Han Fang Guan v Public Prosecutor [2020] 1 SLR 649 (at [108]) considered a two-stage framework:[note: 10]

(a)     First, was there a specific intention to commit a criminal act?

(b)     Second, were there sufficient acts by the accused in furtherance of the specific intention to commit the criminal act found under (a)?

30     These were made out in this case. The attempted fraudulent transactions with the Deliveroo Account involved the accused’s personal details and delivery address (Office Address).[note: 11] They occurred after Chan’s Card was terminated on 28 April 2020.[note: 12] It was unknown to the accused that Chan’s Card had already been terminated, and the seven unsuccessful attempts from April 2020 to June 2020 showed the accused’s persistence which reflected a specific intention to continue fraudulently using Chan’s Card.[note: 13] The accused’s use of his personal cards (the accused’s 9098 Card and the accused’s 5549 Card) showed that the accused was always in control of his Deliveroo Account. In fact, there were four fulfilled orders using the accused’s 9098 Card (prosecution’s emphasis added). The conclusion was that the accused used his own personal funds to purchase the food orders after he was unsuccessful in using Chan’s Card.[note: 14]

31     On this point, the prosecution highlighted that the accused’s 9098 Card and the accused’s 5549 Card were issued after Hotmail and Gmail were allegedly hacked and inaccessible (prosecution’s emphasis added). This was a key piece of objective evidence. The accused also agreed that it was impossible for the alleged hackers to obtain these card details as they could not have been inside his hacked emails.[note: 15]

32     On the contrary, the accused’s defence and claims were “blatant attempts to distance himself” and to “avoid liability by consistent denial of his involvement in the absence of direct proof”.[note: 16] The accused’s primary defence was that he was a victim of identity theft by unknown hackers exploiting his personal details (prosecution’s emphasis added).[note: 17] The accused’s recounts of alleged hacks of his emails were speculative and shifting. The accused could not produce any evidence to prove his emails had been hacked. The accused also admitted at trial that the lack of evidence made his claims unreliable. In particular:[note: 18]

(a)     There were no records presented to support the accused’s assertion that he recovered access to Hotmail and Gmail at various points, since the accused claimed he recovered access through official means (e.g. Microsoft security questionnaire, recovery email).[note: 19]

(b)     There was no documentary evidence from the gaming platforms Mobile Legends or Steam to support the accused’s position that Hotmail and Gmail were tied to these platforms through which the accused discovered the alleged email hacks.[note: 20]

(c)     The sudden mention of another email called brendanxxxxxxxx@gmail.com (“Another Gmail”), which was tied to Steam, was an afterthought raised at trial. Notably, the accused claimed that he did not have access to it.[note: 21]

(d)     The accused did not produce any police report which he claimed to have made regarding the hacking of Hotmail.[note: 22]

33     The accused’s secondary defence pertained to his former boss, one Darren Goh Liang Feng (“Darren Goh”), who might have misused the accused’s identity in perpetrating fraud on Chan’s Card. Notably, the accused admitted at trial that he only thought of this on the day before he raised it in court. Eventually, the accused conceded at trial that he had no reason to suspect Darren Goh.[note: 23]

34     In conclusion, the prosecution submitted that the accused was the perpetrator behind the successful and attempted fraudulent transactions on Chan’s Card, and the CT Charges had been proven beyond a reasonable doubt.

The prosecution witnesses’ evidence

35     Investigation Officer Karl Elliott Lim Peng (PW1) “(the IO”) stated that there was no police report lodged by the accused in relation to hacking of Hotmail. The IO testified “that it wasn’t very clear as to whether his emails were even compromised at all”.[note: 24]

36     Based on the transactions set out in the DBS statements for the accused’s 6867 Card (Exhibit P9), Mohamad Pauzi Bin Ali (PW2), a DBS/POSB representative, agreed with the prosecution that there was a “sudden cessation” of transactions from January 2020 to May 2020.[note: 25] He also noted that the outstanding balance increase arose from charges incurred from “non-payment”.[note: 26]

37     Lai (PW3) from Citibank testified as follows:[note: 27]

Q    So on the point of unauthorised transactions, in the event that Citibank is aware---if Citibank is aware that someone is using another person’s---a third party is using someone’s credit card without authorisation, would Citibank allow transactions to be performed by that third party on that card?

A    No.

38     Chan (PW4) testified that Chan’s Card was kept “at home” and he never lost the “physical card”.[note: 28] Chan never disclosed the card details to anyone other than entering them on online platforms usually from Taobao and Lazada, and the things he bought would “not amount to a few thousand dollars”.[note: 29] Chan confirmed that the transactions in question were unauthorised because he did not use Chan’s Card “during those few months”.[note: 30]

39     On the relevance of the term “USED 55X” in relation to the Level 7 Office Unit set out in the information provided by Deliveroo (Exhibit P15), Mohamed Ajmal H Sirajudeen (PW5), a Deliveroo representative, stated that it meant “this address has been used 55 times” for deliveries or orders:[note: 31]

“Name of order/account: Brendan Ho

The delivery address associated with the order:

DELIVERY ADDRESS

62 bendemeer road #07-00, Boogle, Bendemeer/Whampoa, Singapore –

Novena/Toa Payoh, Singapore, 339939, SG

USED 55x

…

The email address associated with order/account: br3ndanxxx@gmail.com…

Phone number(s) associated with orders/account: +65 [redacted Handphone Number]

Date account was opened: 2020-01-31 10:44:26”

[emphasis in bold]

Submission of no case to answer

40     The defence did not make a submission of no case to answer, and I was satisfied that the prosecution made out a prima facie case on the CT Charges. The accused was accordingly called to make his defence.

Case for the defence

41     The accused (DW1) was “adamant” that he did not commit the offences.[note: 32] The accused lodged the First Police Report before investigations in the matter commenced, concerning how Gmail had been compromised or hacked to the extent he had no access to it.[note: 33] The accused lodged the Second Police Report over “continued or repeated problems” relating to Gmail being compromised or hacked. The Second Police Report stated:[note: 34]

I received an email from Bluehost.com saying that, my Domain Esportstimes.com Bluehost primary email have been changed on 27 May 2022 at 03:23AM…

42     The accused’s personal information (including mobile number, residential address, place of employment, banking and other financial data) were stored or contained in Gmail. Hotmail (which also contained an array of his personal details and information) had been similarly compromised or hacked as well.[note: 35]

43      Rely Account. The compromise or hacking of Hotmail “must be how” the Rely Account was used to make the Chair 1 order on 1 December 2019 by the actual perpetrator(s) of the offence as the accused did not authorise the purchase of Chair 1 (including the first instalment), nor was he involved in any way thereafter. It was also on this basis that the actual perpetrator(s) managed to and did arrange for Chair 1 to be delivered to the Office Address.[note: 36] The accused had only made or placed the order for Chair 2 on 25 December 2019.[note: 37]

44      Farfetch Account. The accused never did have any account with Farfetch. The accused’s explanation was that Gmail “must have been” compromised or hacked, with the information in Gmail being used by the actual perpetrator(s) to register the Farfetch Account.[note: 38]

45      Deliveroo Account. For the Deliveroo Account registered using Gmail, the accused adopted the same position he took with regards the Farfetch Account, being that he never did have a Deliveroo Account, the actual perpetrator(s) must have registered the Deliveroo Account, and they would have given instructions using the Deliveroo Account to effect the unauthorised transactions and payments.[note: 39] On multiple occasions, food was delivered to the Office Address but left at the door or gate unattended. No one notified the accused on the delivery of the food.[note: 40]

46     On the attempted Deliveroo orders, the accused was not aware of how payment was redirected to the accused’s 9098 Card. During that period, the accused recalled having informed the bank of fraudulent charges being made to the accused’s 9098 Card.[note: 41]

47     Accordingly, the defence counsel submitted that the prosecution has failed to prove its case beyond a reasonable doubt.

The accused’s evidence

48     The accused’s view was that this was a case of “identity theft” where his identity was used.[note: 42] In the accused’s words: “[T]here’s no way that I could get the guy’s identity or details.”[note: 43] According to the accused, the “same syndicate” was trying to “fraud” him for the past few years.[note: 44] The accused felt like he was “being sabotaged”.[note: 45]

49     The accused’s version of events was as follows.

50      Hotmail. The accused was unable to recall when he created his first email account, Hotmail. When he created Hotmail, he “manually inputted” his credentials and card details in Hotmail.[note: 46] The credentials found in Hotmail were the same as Gmail. Hotmail was “hacked two times between 2018 and 2019”[note: 47] – once between late 2018 to middle 2019 (“the First Hotmail Hack”) and another time in December 2019 (“the Second Hotmail Hack”).

51     Between late 2018 to middle 2019, the accused was unable to access his account on a gaming platform called Mobile Legends. To reset his Mobile Legends account, the account had to retrieve a verification code from Hotmail. The accused was unable to access Hotmail. The accused managed to regain access to Hotmail by doing the “usual Microsoft” security questionnaires.[note: 48]

52     In end December 2019, the accused was unable to access his account on a gaming platform called Steam (“the Steam Incident”). To reset his Steam account, the accused had to retrieve a verification code from Hotmail. The accused was unable to access Hotmail. The Steam developers helped the accused to retrieve his gaming account, to “unbind” Hotmail which was “compromised”[note: 49] as well as to “bind” his gaming account into Another Gmail.[note: 50] During examination-in-chief, the accused claimed he made a police report in early-2020 that Hotmail was jeopardised due to the Steam Incident. I set out the exchange between the accused and the defence counsel:[note: 51]

Q    Which incident?

A    The Steam---when I realised that my gaming platform was being jeopardised; I cannot access to my email.

Q    Okay, and this was before or after 25th December 2019?

A    No, that was way after 25th December.

Q    Okay. So, was it January 2020? February 2020? Or---

A    I recall it’s like the early-2020.

Q    Okay. So, how did you---where did you go to lodge the report?

A    I think it was the online e-statement---e-services.

Q    I see.

A    Yah.

Q     And do you have a copy of the report?

A     No, I don’t have.

[emphasis added]

53     On why the accused only mentioned the First Hotmail Hack (and not the Second Hotmail Hack) in the Second Statement (dated 20 January 2022) (even though the Second Hotmail Hack had already occurred by then), the accused stated during cross-examination that the Second Hotmail Hack was not brought up as “no person in their right mind would even recall such dates”.[note: 52] For reference, the relevant extracts from the Second Statement stated:

1.     I have given you a summary of your previous statement – that you had nothing to do with all the fraudulent transactions and what happened is likely because of your email accounts being compromised. Is there anything you would like to clarify?

…rakion_xxxx@hotmail.com was the first email that got hacked and it was hacked sometime in late 2018 to middle 2019…I lodged a Police report pertaining to this matter within a week.

I then created br3ndanxxx@gmail.com to use, however, it was subsequently hacked in about middle 2019 to 2020…

[emphasis added]

54      Gmail. Gmail was first hacked on 11 August 2019 (“the First Gmail Hack”). The accused lodged the First Police Report which stated as follows:

On 11/08/2019 at about 3pm, I discovered my email (br3ndanxxx@gmail.com) was hacked...This is the first time such incident happened to me. My email consists of my company information but it is just car prices and insurance rates which is not sensitive information.

[emphasis added]

55     Gmail was created to “take over” the compromised Hotmail originally used for his Mobile Legends account.[note: 53] The accused was unable to log into his Mobile Legends account. To reset his Mobile Legends account, the accused had to retrieve the “6-digit number ID code” from Gmail.[note: 54] The accused discovered he was unable to access Gmail. Since then, Gmail was compromised multiple times, and it is “still happening”.[note: 55]

56      Darren Goh. For the first time at trial, the accused introduced a fresh point regarding Darren Goh which, as clarified by the defence counsel in court, was “not a fundamental defence”[note: 56] relied on by the accused. Apart from the hacking of Hotmail and Gmail as his defence, the accused said that Darren Goh was the one who was “doing this” to him.[note: 57] The accused added that Darren Goh would have “such a motive” against him.[note: 58] The accused admitted that this thought only came about “now”.[note: 59]

57     These additional key points emerged from the prosecution’s cross-examination of the accused.

Overview

58     The accused agreed that he was facing “financial difficulty” with loans and credit cards.[note: 60] Although Hotmail and Gmail were compromised, the accused agreed that it “didn’t really matter and [he] continued putting [his] personal details” into Hotmail and Gmail.[note: 61] In the accused’s view, this was one big conspiracy against him. That said, the accused conceded that there was “no reason for someone to do that”.[note: 62] Further, the accused agreed that “[i]f what [he] had told [the court] today is true about [his] boss, [he] would have informed this to somebody, anybody, at any point before today”.[note: 63] Notably, this account about Darren Goh only surfaced at trial. Even so, the accused was hesitant about his own case theory regarding Darren Goh:[note: 64]

Q    Was Darren Goh involved in these transactions or not?

A    I’m unsure.

Rely Account

59     Even though the accused claimed that he received an overdue notification for the second instalment for Chair 2 which prompted him to make payment, the accused did not have evidence of this alleged notification:[note: 65]

Q    And they send you this by?

A    If I recall, it’s SMS or---or---or WhatsApp or---I can’t remember already.

Q    And you don’t have the evidence on that?

A    No, I don’t---I don’t have, yah.

60     Notably, the accused plainly admitted that all the evidence pointed to him being the one who made the orders for Chair 1 and Chair 2:[note: 66]

Q    …all these evidence, that you did not dispute as you have confirmed that all these personal details are yours and registered to this account, that ordered the two Secretlab chairs, the evidence points to you being the one who made the orders for the Secretlab chairs, you agree or disagree?

A    Yes.

61     Contrary to the accused’s evidence-in-chief that he opened the Rely Account on 1 December 2019 using Hotmail[note: 67], the accused mentioned during cross-examination that he created the Rely Account on “25th December 2019”[note: 68] using Hotmail which is “the correct one”[note: 69]. This conflicted with the Second Statement in terms of date and email account used:

17.     Do you have or have you ever had an account with Rely Singapore?

Yes, I made an account at about the end of 2020 to sometime in 2021 linked to br3ndanxxx@gmail.com. I used it to buy a blue-coloured Cloud9 secret lab chair for my brother. It was delivered to my home address.

To explain his answer in the Second Statement, the accused stated that he “couldn’t remember at all”[note: 70] during the recording and agreed that he “made this up”.[note: 71]

62     In addition, the Second Statement set out that the accused did not bother to monitor the status of the second and third payments for Chair 2, when in fact the accused paid for the second instalment of Chair 2 by PayNow:

18.     How did you make the payment for the secret lab chair?

Through one of my credit cards. I can confirm that the first payment was made using my credit card. I did not bother to monitor the status of the second and third payments because there were not (sic) any (sic) email notifications sent to me pertaining to failure to deduct, so I assumed it went through.

Again, to explain his answer in the Second Statement, the accused said that he “couldn’t remember at all during the investigation” and wanted to “just conclude the investigation”.[note: 72]

Farfetch Account

63     The accused agreed with the prosecution that the “reasonable thing” to do was to check and find out why an unknown package was sent to him.[note: 73] The accused also agreed with the prosecution that he would be “alarmed” if he received more than one package and if this was building up.[note: 74] Notwithstanding, the accused did not check the packages.

64     The accused disagreed with the prosecution that “the right thing to do would be either to return the package or to report it to an authority”.[note: 75] This was because “it’s the sender’s fault”, and disposal was “more of the right choice”.[note: 76] The accused did not make a police report because he decided to “just focus on [his] career” and he “didn’t really bother about [his] life” at that time.[note: 77]

65     The accused disagreed with the prosecution that he “would be concerned as to why someone would have sent [him] something with [his] compromised email username”.[note: 78] It did not occur to the accused at that time as being a personal assistant was a “very tedious job” for him.[note: 79] The accused stated that he “didn’t care” at that point.[note: 80] The packages sent to him were not his “priority”.[note: 81]

Deliveroo Account

66     The accused stated that “there were times” he saw his name on the food items.[note: 82] The accused admitted that he found it “weird” that the accused’s 9098 Card and the accused’s 5549 Card were used, and he did not know how his card details were there.[note: 83]

67     The accused agreed with the prosecution that it was “impossible” for the hackers “to have access or known” the accused’s 9098 Card as it was issued on 2 January 2020.[note: 84] The accused disagreed with the prosecution that he “put in” the accused’s 9098 Card details for the Deliveroo purchases because his view was that the “hacking of a Gmail account itself” can “link to a lot of different thing (sic)”.[note: 85]

Reason for conviction

68     The crux of the defence was that the accused’s email accounts (which stored his personal information) were hacked previously, and that there was a conspiracy to sabotage him. The accused agreed with the prosecution that there were essentially two competing positions, and he did not challenge Chan’s testimony:[note: 86]

Q    ---do you have any evidence to challenge his testimony?

A    Yes.

Q    That he made those transactions?

A    No, no, no.

…

Q    So, what we have to do today is to compare your version, which is that your details are there but you don’t know how and your explanation is the hacking of the email accounts, right, versus the other version, which is prosecution’s version that you are the one who did these transactions. That’s the two competing versions, you agree?

A    Understand.

Q    I mean, do you---have you any other version?

A    No.

69     In view of the significant number of occasions, dates and details, I set out the key events in chronological order in the table below (“the Table”) for context and clarity:

Key Dates

Description

25 October 2017

The accused’s 5801 Card was issued

9 October 2018

The accused’s 2051 Card was issued

Late 2018 to mid-2019

First Hotmail Hack (Accused’s version)

(Note: The accused said in the Second Statement that he made a police report about First Hotmail Hack. No police report was produced.)

9 October 2018

The accused’s 6867 Card was issued

7 April 2019

Gmail was created

11 August 2019

First Gmail Hack (Accused’s version)

19 August 2019

First Police Report – regarding First Gmail Hack

1 December 2019

Rely Account created

- Full Name: Brendan Ho Jun Jie

- Account Name: Rakion Xxxx

- The accused’s NRIC

- Handphone Number

- Residential Address

- Hotmail

- The accused’s 6867 Card

Chair 1

- Shipping Address: Level 7 Office Unit

- 1st instalment for Chair 1 paid using the accused’s 6867 Card

25 December 2019

Chair 2

- Shipping Address: Residential Address

- 1st instalment for Chair 2 paid using the accused’s 6867 Card

End December 2019

Second Hotmail Hack (Accused’s version)

(Note: The accused said at trial that he made a police report in early 2020 about Second Hotmail Hack. No police report was produced.)

2 January 2020

The accused’s 5801 Card was cancelled

The accused’s 9098 Card was issued

23 January 2020

[Time at 22:50] 2nd instalment for Chair 2 paid using the accused’s PayNow

(Note: The accused claimed he was prompted by an overdue notification. No notification was produced.)

[Time at 23:00] Message sent from Rely Account informing Rely to update the payment method to Chan’s Card

First CT Charge period: 24 January 2020 to 24 April 2020

(21 occasions)

- Rely Account: 3 occasions

- Farfetch Account: 5 occasions

- Deliveroo Account: 13 occasions

24 January 2020

Rely Account: 2nd instalment for Chair 1 paid using Chan’s Card

31 January 2020

Deliveroo Account created

- Name of order/account: Brendan Ho

- Gmail

- Handphone Number

- Level 7 Office Unit

- Chan’s Card

3 February 2020

Rely Account: 3rd instalment for Chair 1 paid using Chan’s Card

25 February 2020

Rely Account: 3rd instalment for Chair 2 paid using Chan’s Card

3 March 2020

Deliveroo Account: Food item 1 – Chicken rice

4 March 2020

Deliveroo Account: Food item 2 – Pizza Hut

7 March 2020

Deliveroo Account: Food item 3 – Burger King

9 March 2020

Farfetch Account created

- Billing Address Name: Weng shi Chan

- Shipping Address Name: Br3ndan Hjj

- Gmail

- Handphone Number

- Residential Address

- Chan’s Card

Farfetch Account: Item 1 – Bottega Veneta leather wallet

Deliveroo Account: Food item 4 – Boon Tong Kee

Deliveroo Account: Food item 5 – Boon Tong Kee

10 March 2020

Farfetch Account: Item 2 – Adidas cotton pants

14 March 2020

Deliveroo Account: Food item 6 – Chicken rice

15 March 2020

Farfetch Account: Item 3 – Off-White cotton top

18 March 2020

Deliveroo Account: Food item 7 – Burger King

Deliveroo Account: Food item 8 – Chicken rice

23 March 2020

Deliveroo Account: Food item 9 – Chicken rice

13 April 2020

Farfetch Account: Item 4 – Moschino polyester bag

16 April 2020

Deliveroo Account: Food item 10 – Chicken rice

17 April 2020

Deliveroo Account: Food item 11 – Chicken rice

Farfetch Account: Item 5 – Logo badge holder

22 April 2020

Deliveroo Account: Food item 12 – Chicken rice

24 April 2020

Deliveroo Account: Food item 13 – Chicken rice

28 April 2020

Chan’s Police Report was made

Chan’s Card was terminated

Second CT Charge period: 30 April 2020 to 4 June 2020

-     Deliveroo Account: 7 attempted occasions

30 April 2020

Attempted Deliveroo order 1 using Chan’s Card cancelled (4:54am) – Chicken rice

- Deliveroo order using the accused’s 9098 Card cancelled (4:54am)

- Fulfilled using a card ending with 0934 (4:54am)

4 May 2020

Attempted Deliveroo order 2 using Chan’s Card cancelled (5:06am) – Burger King

- Fulfilled using the accused’s 9098 Card (5:53am)

Attempted Deliveroo order 3 using Chan’s Card cancelled (1:58pm) – Chicken rice

- Fulfilled using the accused’s 9098 Card (1:59pm)

5 May 2020

Attempted Deliveroo order 4 using Chan’s Card cancelled (6:38am) – Chicken rice

- Fulfilled using the accused’s 9098 Card (6:50am)

13 May 2020

Attempted Deliveroo order 5 using Chan’s Card cancelled (7:30am) – Chicken rice

- Fulfilled using the accused’s 9098 Card (7:30am)

4 June 2020

Attempted Deliveroo order 6 using Chan’s Card cancelled (9:50am) – Chicken rice

Attempted Deliveroo order 7 using Chan’s Card cancelled (9:50am) – Chicken rice

16 August 2020

The accused’s 9098 Card was cancelled

The accused’s 5549 Card was issued

17 September 2020

The accused’s 6867 Card was closed

The accused’s 2051 Card was closed

29 September 2020

Two Deliveroo orders using the accused’s 5549 Card pending (9:55am and 10:03am)

(Note: This card was still valid as at the date of DBS letter on 22 November 2021)

5 November 2020

First Statement

20 January 2022

Second Statement

27 May 2022

Second Police Report – regarding Bluehost.com domain account



[emphasis added in bold]

70     At the outset, I highlighted that the accused’s case theory kept shifting, with differing versions of events. For example, for the first time, the accused brought up a new defence only at trial about how his former boss Darren Goh was involved and sabotaged the accused. Notably, the accused admitted in court on 8 November 2023 that he “only thought of that yesterday”, i.e. 7 November 2023.[note: 87] This was encapsulated in the following exchange between the prosecution and the accused during cross-examination:[note: 88]

Q    Okay. Now, you agree with me that it doesn’t make sense that hackers or scammers---okay, let’s call them hackers to be accurate. That hackers would---so, I’ll go into the hacking part later, but even assuming your case to be true, that they obtained your personal details, it does not make sense that they would use someone else’s card to pay for things that they are sending you. You agree with me it doesn’t make sense?

A      Yes, correct.

Q    And further to that, it does not even make sense in the first place, regardless of whose card they used, that they would hack your account and then send things to you.

A      Correct.

Q     So, do you have any explanation for why this would have happened?

A      I will say probably one. The person that is using my details or compromising the hacker has a relationship with me or probably has a relationship with the victim as well, and he started, like, compromising, probably want to jeopardise me, or it’s at the same time that---since he know that, “Oh, I got this victim, why not I just jeopardise this person that I don’t really like actually.” So, that could be the reason as well.

Q    Now, I don’t really understand what you mean because what does the hacker have to gain out of doing that? Of sending things to you which the hacker is not receiving?

A    Okay, so what I’m mentioning is that the hacker could have a relationship with the victim and as well as with me, but because probably there could be a terms where he is obliged to---to be friend with me or basically he have an objection against me, he could be using this method to actually be compromising me and jeopardising myself, like, me.

Q      So, basically, you are saying the hacker is trying to sabotage you?

A      Yes.

Q      And this is what you think now, or this is what you thought then?

A      This is what I’m thinking right now.

Q      And sabotage you in what way?

A      Jeopardising my career, life.

Q      And do you know of anyone in your life who has such a motive against you?

A      I’ll say Darren Goh.

Q      And again, you knew this at the time that he had a motive against you, or now?

A      Now.

Q    What changed since then?

A    Because I have came (sic) into a thought on---in a way it’s that, like, it doesn’t make sense as well, as you mentioned, why---why would a hacker want to reward, like, another person while jeopardising a victim’s card itself. So, I been trying put into thoughts on anyone close to me that I have ever given a lot of 100% trust and confidential information to, and only one person came in mind, which is him.

Q    Okay, I won’t delve too much into this, but I think your evidence is quite clear that you don’t know why a hacker would do such a thing, basically taking your personal details and sending things to you?

A      Correct.

Q      And your only explanation is that it goes back to Darren?

A      Correct.

[emphasis added]

71     In the round, the accused’s case was inconsistent in many ways and had several gaps. In my assessment, it was questionable that alleged hackers would make purchases for the accused’s benefit. Even the accused agreed that this did not make sense. As the prosecution aptly summed up:[note: 89]

The Prosecution’s case is that the accused was the one making these fraudulent transactions. Accordingly, it made perfect sense that the items and food purchased were delivered to the accused as the intended beneficiary…It would only make sense that the perpetrators would want to benefit or enrich themselves, and it makes no sense that they would commit identity theft and/or credit card fraud (on Mr Chan), only to bestow unsolicited and inexplicable generosity on the accused by sending him gifts by making fraudulent purchases.

72     I was unpersuaded by the defence’s allegation of conspiracy against the accused by unknown persons or the alleged sabotage by Darren Goh. From the accused’s perspective, someone was “observing” him “on the other end” and “[a]ll these things could happen, but [he didn’t] know how.[note: 90] Ultimately, the accused was unsure about how the transactions lead to Darren Goh. In my view, the accused’s assertions were speculative in nature.

73     Throughout the proceedings, the accused did not provide any concrete evidence to support his allegations. In relation to the alleged hacking of Hotmail and Gmail, there was no documentary proof of how these email accounts were eventually retrieved with a security questionnaire or the assistance of gaming platform developers. None of the police reports which the accused claimed to have lodged after the First Hotmail Hack or the Second Hotmail Hack was produced in court by the accused. Indeed, the IO testified that there was no such police report. The same happened for the alleged overdue notification regarding the second instalment for Chair 2 (mentioned by the accused) which was also not produced as defence evidence.

74     Next, the accused claimed that he stored his credentials and card details in Hotmail and Gmail. Specifically, the accused’s evidence was that the credentials found in Hotmail were the same as Gmail. Even the First Police Report, which the defence relied on to support their position that Gmail was hacked, contradicted the main line of defence. Notably, it was odd for the accused to state in the First Police Report that this was the first time such an incident happened to him, bearing in mind that the accused already encountered the First Hotmail Hack before the First Gmail Hack. Even if this referred to the first time Gmail was hacked, the fact that the accused specifically stated in the First Police Report that Gmail contained non-sensitive company information (car prices and insurance rates) was telling. I was unconvinced by the accused’s feeble explanation that he did not want his ex-girlfriend to know that his credit card details were found in Gmail.[note: 91] Amidst a glaring lack of any other documentary evidence in the defence’s case, the defence’s assertions were unsubstantiated.

75     In terms of motive and timing, I noted from the testimony of Mohamad Pauzi Bin Ali (PW2) from DBS/POSB that the accused’s expenditure on the accused’s 6867 Card (which was used to pay for the first instalments of both Chair 1 and Chair 2 in December 2019) stopped from January 2020 onwards, and late charges started accumulating for the accused’s 6867 Card. Pertinently, the accused admitted that he could not keep up with the monthly repayments for all his credit cards. Based on the First Statement:

…I have been working for Boogle since September 2019, earning a monthly salary of about S$2,600…

…

Q4)     Do you own any credit cards?

A4)    Yes, I used to own credit cards from POSB, CIMB and Citibank but all the cards have been cancelled as I could not keep up with the monthly repayments. I do not own any credit card now.

[emphasis added]

76     Essentially, the accused was spending beyond his means. As summarised by the prosecution:[note: 92]

Since December 2019, he started incurring significant credit card debt that ran into the thousands of dollars. Between December 2019 and May 2020, he only made the monthly minimum repayments for his credit card debt. In the same period, the accused’s bank account balance at the end of the month never exceeded S$100. He also did not earn much, and he had little to no savings by his own admission. To continue funding his lifestyle, he needed another source of funds.

77     From the Second Statement, the accused could not remember the card number which was in Hotmail, but he stated that the accused’s 5801 Card was compromised in the alleged hacking of Gmail:

2.     Can you clarify what banking details were compromised for your rakion_xxxx@hotmail.com email.

My debit card details were compromised as they were linked to my email account. By having access to my email and logging in, the hacker would be able to retrieve details that are input into my email, specifically, my billing address, name, contact number and only the last four digits of my DSB/POSB debit card. I do not remember the card number that was linked to this email address.

3.     Can you clarify what banking details were compromised for your br3ndanxxx@gmail.com email?

Same thing as above, just that another DBS/POSB debit card was compromised and all I recall is the last four digits are 5801.

78     Notably, the accused’s other cards were used, namely, the accused’s 6867 Card (for the Rely Account), the accused’s 9098 Card (for the Deliveroo Account) and the accused’s 5549 Card (for the Deliveroo Account). It was striking that the accused claimed to have made reports for fraudulent transactions involving his various cards.[note: 93] Yet, these alleged reports were not provided as defence exhibits to support the accused’s claims.

79     There were several instances where the accused provided differing versions of events. For example, in relation to the Farfetch packages:

(a)     Originally, the accused said that he only asked his family members about the Farfetch packages. Subsequently, the accused said that he also checked with Darren Goh. From initially saying that he asked Darren Goh about the Farfetch packages, the accused then changed his evidence to say that he had conversations with Darren Goh about the Deliveroo orders, and not the FarFetch packages. This was seen from the relevant extract:[note: 94]

Q    Okay. You said, you had conversations in relation to Farfetch packages and then now you said it’s actually Deliveroo food orders. Two different versions, right?

A    Correct, correct, correct.

(b)     The accused first stated in cross-examination that he saw the packages at the corridor or the flowerpot outside his house when he came home. He “cannot recall whether [he has] met the delivery guy before”.[note: 95] Subsequently, the accused said in cross-examination that he saw a person leave something at his house and spoke to him:[note: 96]

A    …But that is the one---one time I saw---ever saw a guy that---that---that actually leave something at my house.

…

A    …Then, I asked him, say, “What did you put here?” That’s all.

…

Q    ---just one or---is there this one incident now that you remember, at least one, right, to be completely accurate, that there’s this delivery personnel walking away that just put the parcel outside your door and you are in a conversation with him.

A    Yah…

(c)     The accused stated in the First Statement that he did try to contact Farfetch but to no avail:

Q15)     Since you mentioned that you did not order these items from ‘Farfetch’, did you make any attempt to contact them or reject the parcel?

A15)   I did try to contact ‘Farfetch’ but to no avail.

However, the accused gave a different version at trial where he said that he did not contact Farfetch:[note: 97]

Q    Okay. Did you call anybody that could have been Farfetch?

A    No.

Q    Did you call anybody that could have been the delivery company?

A    No, not at all. Because I don’t know who was it sent from also.

(d)     The Case for the Defence dated 4 July 2023 (Exhibit P22) stated that the accused “asked the delivery personnel in question to take them away” (at [15]). This description was entirely different from the accused’s evidence during cross-examination that he was sure he did not speak to any delivery personnel to try to reject the parcel:[note: 98]

Q    …Did you speak to any delivery personnel to try to reject the parcel?

A    No.

Q    Sure?

A    Yah, sure.

(e)     The accused’s evidence-in-chief was that he did not glance at the Farfetch packages or open them. This however did not gel with the accused’s testimony during cross-examination that it was reasonable to check if he received a package which he did not order and was addressed to him:[note: 99]

Q    …My question is: Agree with me that if you receive a package that you didn’t order addressed to you, the reasonable thing to do would be to check why such a package was sent to you?

A    Correct.

80     At this juncture, I highlighted that the unauthorised transactions were traced to the accused through prominent aspects connected to the accused such as the account name, email accounts, addresses, contact details and credit cards. Such information was personal, confidential, and sensitive in nature. In my view, not only were the testimonies of the prosecution witnesses credible, the prosecution’s line of questioning during cross-examination demolished the defence’s case, rendering the hacking and sabotage claims baseless.

81     For the First CT Charge, there were many linkages connected to the accused as demonstrated in the Table. In sum:

(a)     For the Rely Account, apart from the details tied to the accused (see the Table above), the first instalments for both Chair 1 and Chair 2 were paid using the accused’s 6867 Card. Separately, I noted that the second instalment for Chair 2 was paid by the accused using PayNow on 23 January 2020 at 22:50. I also noted the proximity and flow in timing when the payment method was changed to Chan’s Card via the Rely Message on 23 January 2020 at 23:00. Thereafter, all instalments were paid using Chan’s Card.

(b)     For the Farfetch Account, apart from the details tied to the accused (see the Table above), I found it questionable that the accused would dispose of the packages without checking or doing something about them, especially since he claimed that he did not order them. Moreover, the packages came on more than one occasion which would have raised alarm bells or prompted further action on the accused’s part. As the accused mentioned in the First Statement:

Q9)     There was a report lodged in April 2020 about some unauthorized transactions done on his (sic) Citibank credit card. Based on the information that he had provided to the Police, there was an order made from a merchant, ‘Farfetch’ from UK and the delivery was made to your address at Pasir Ris. What do you know about this transaction?

A9)    I know items are been (sic) delivered to my place. But I have thrown them away.

…

Q12)     What were the items or parcels that you have received and thrown away?

A12)    I do not know as I did not check.

[emphasis added in bold]

Specifically, the accused was again unable to explain how the packages ended up at his home:[note: 100]

Q      Mr Ho, if you return those items, you reported to the police; at any point when you suspected something, you would not be charged.

A      I understand. That’s why---

Q      So, my question is: How would that person, according to your theory, be able to sabotage you just by sending you things?

A      So, now, it’s---the answer is I do not know---

[emphasis added]

(c)     For the Deliveroo Account, apart from the details tied to the accused (see the Table above), I again found it questionable that the accused would dispose of the food items. According to the Second Statement, the accused did not find this fishy and did not bother to contact Deliveroo:

9.     Have you ever received unsolicited food orders from Deliveroo to your house or former work place?

Yes. When I was working with Boogle, I received food items addressed to me which I did not order. The frequency would vary – sometimes it could be once or twice a day, sometimes it ranged from two to three times a week. This happened for about half a year.

10.     What did you do with the food that was delivered?

I disposed of the food.

11.     Did you get in touch with Deliveroo pertaining to the unsolicited deliveries?

I do not have a Deliveroo account, so I did not bother to contact the company.

12.     Did it not occur to you that considering the frequency of the unsolicited food deliveries, something fishy was going on and you should at the very least inform the company about what was happening?

No.

[emphasis added]

This was unbelievable, given the high frequency of the food deliveries and the lengthy duration for which this has been taking place. Pertinently, I noted from the testimony of Mohamed Ajmal H Sirajudeen (PW5) from Deliveroo that the Level 7 Office Unit address had been used 55 times.

82     For the Second CT Charge, the strong connecting factors to the accused were once more present. Arising from the termination of Chan’s Card on 28 April 2020, the attempted food delivery orders using Chan’s Card were cancelled. Apart from the details tied to the accused in the Deliveroo Account (see the Table above), it was noteworthy that the accused’s cards (namely, the accused’s 9098 Card and the accused’s 5549 Card) were used to fulfil cancelled orders or for pending orders.

83     In this regard, the accused confirmed that the accused’s 9098 Card was “not” found in Hotmail and Gmail.[note: 101] The accused also confirmed that it was “impossible, therefore, for the hackers to have access or known this card”.[note: 102] Similarly, the accused conceded that the accused’s 5549 Card “won’t be” in his email accounts.[note: 103] Notwithstanding this, the accused simply inferred that the hackers “can do way more things” with his email accounts. I found the accused’s explanation problematic. Essentially, the accused was unable to provide a proper explanation as to how his cards’ details ended up in the Deliveroo Account.

84     From the accused’s perspective, “it doesn’t make sense” that the Deliveroo orders were made using the accused’s 9098 Card and the accused’s 5549 Card because he did a “replacement” on those cards due to “fraudulent transactions being done on it before”.[note: 104] Again, the accused’s claim was unsupported by evidence. Bearing in mind that the period in the Second CT Charge was from April 2020 to June 2020, the accused’s 9098 Card was only cancelled in August 2020 and the accused’s 5549 Card was still valid at that time.

85     In a nutshell, this line in the First Statement captured the accused’s overall position: “Maybe the hacker wanted to manipulate the victim’s credit card and used another person’s address.” [emphasis added] I found that this was pure conjecture on the accused’s part without affording proof or explanation on why the alleged hacker would send so many items to the accused’s home and office paid for by somebody else. It was notable that the accused’s evidence and the defence closing submissions were peppered with speculative words such as “maybe”, “unsure”, “must be how” or “must have been” to explain away the offences. The defence’s recurrent and nebulous reference to “the actual perpetrator(s)” also showed weakness and mere supposition in the defence case theory, akin to convenient finger-pointing to an unknown subject with no specific identity, without more.

86     Even though the defence counsel clarified that the aspect regarding Darren Goh was not a fundamental defence, I have dealt with it here for completeness since it has been raised by the accused. In my view, the sudden allusion to Darren Goh certainly did not pass muster. There was no evidence produced to show that Darren Goh was the perpetrator. At trial, the accused mentioned that Darren Goh “is on the run”.[note: 105] Even if this was the reason for which Darren Goh was not called as a defence witness to testify, I noted that the defence did not call any other former colleagues to testify. Not only was the position concerning Darren Goh not put to the prosecution witnesses, there was also no mention of Darren Goh in the accused’s statements. I agreed with the prosecution that the use of Darren Goh was an afterthought which arose as a last-ditch attempt (during the defence case at the trial itself) to salvage his case comprising a bare denial and essentially no valid defence.

87     Further, the accused said he did not raise this earlier because he did not think that Darren Goh would “be doing all this based on trust with him”.[note: 106] The accused was “very close” to Darren Goh who was “using his phone personal details” to make purchases.[note: 107] When the accused previously asked Darren Goh whether he used his “email to send all these stuff”, Darren Goh said “no” and mentioned to the accused: “Oh, I actually logged out your email already” or like “not even in your email”, something like that.[note: 108] As the accused confirmed in court that this covered Gmail, it contradicted the First Statement:

Q5)     Do you share access of your gmail address, Br3ndanxxx@gmail.com with anyone else?

A5)    No, nobody else.

To explain his answer in the First Statement, the accused said during cross-examination: “I couldn’t recall at all. That’s the reason why the answer is “No””.[note: 109]

88     Based on the strong evidence against the accused, I agreed with the prosecution that the elements under section 420 of the Penal Code were made out. As the High Court concisely set out in Public Prosecutor v Sim Chin Ang Jason [2024] SGHC 169 (“Jason Sim”) (at [43]):

The elements of a cheating offence punishable under s 420 of the Penal Code are as follows: (a) the victim was deceived; (b) there was an inducement such that the victim delivered any property to any person; and (c) there was a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property (Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946 (“Gunasegeran”) at [42]–[44]).

89     I will cover each element in turn.

90     First, deception is defined as the causing of another to believe what is not true (Rahj Kamal bin Abdullah v Public Prosecutor [1997] 3 SLR(R) 227 at [24]): Jason Sim at [44]. I was satisfied that Citibank was deceived by the accused into believing that he was authorised to make payment using Chan’s Card.

91     Second, “in the context of deceiving corporate bodies such as the banks in the present case, it is sufficient for the Prosecution to show that the bank’s processes were utilised to induce the bank to act in a manner that it would not have acted if the representation was not made (Leck Kim Koon v PP [2022] 3 SLR 1050 at [28])”: Jason Sim at [56]. I was satisfied that there was an inducement such that Citibank delivered property (amounting to $2,444.74) to the accused, as attested to by Lai (PW3) from Citibank.

92     Third, I was satisfied that there was a dishonest or fraudulent intention on the part of the accused to induce Citibank to deliver the property. The accused used Chan’s Card for the transactions. Chan did not authorise the transactions.

93     I also agreed with the prosecution that the accused attempted to commit the other offence under section 420 of the Penal Code. I was satisfied that the accused had the intention to commit the offence and there were sufficient acts by the accused to conclude as such.

94     Apart from the accused’s multiple discrepancies and conflicting evidence, I added that his nonchalant and blasé approach to try to explain away occurrences along the lines of being unable to recall situations or that he could not be bothered about certain matters did not aid his case in any way. I agreed with the prosecution that the accused “caught himself in the web of lies that he has spun”.[note: 110] Pertinently, the accused conceded that he had no evidence to support his claims. I set out this exchange between the accused and the prosecution:[note: 111]

Q      Now, Mr Ho, you have told us a lot of things today that you have no evidence for as well.

A      Correct.

Q      So, if it happened, why didn’t you tell us?

A      Because you should have evidence in Court, you know, in order to---to mention about it. If you don’t have any evidence, then there’s no point mentioning it.

Q      And no point mentioning it because it would be unreliable?

A      Yes, correct.

Q      So, whatever you have told us today in Court that you have no evidence for would also be unreliable?

A      Yah.

[emphasis added in bold]

Conclusion

95     This was a case where the accused continually used the credit card details of a 69-year-old person for a buying spree. This took place over 20 times, only ending involuntarily when the credit card was cancelled. The defence was completely devoid of merit.

96     In the circumstances, I was satisfied that the prosecution has proven its case beyond reasonable doubt. The accused was convicted on the CT Charges. The accused is presently on bail pending appeal.

[note: 1]The original charge read “Second” instalment. It was altered, read and explained to the accused under section 128 of the Criminal Procedure Code 2010 (“CPC”). The accused claimed trial on the First CT Charge, and both parties did not require any witness who had been examined to be recalled: sections 129 and 131 of the CPC.

[note: 2]The accused’s NRIC was originally redacted in the ASOF.

[note: 3]Prosecution’s End of Trial Submissions dated 25 April 2024 (“Prosecution’s End of Trial Submissions”) at Paragraph 7.

[note: 4]Prosecution’s End of Trial Submissions at Paragraph 11.

[note: 5]Prosecution’s End of Trial Submissions at Paragraphs 3, 4 and 12.

[note: 6]Prosecution’s End of Trial Submissions at Paragraph 13.

[note: 7]Prosecution’s End of Trial Submissions at Paragraph 15.

[note: 8]Prosecution’s End of Trial Submissions at Paragraph 16.

[note: 9]Prosecution’s End of Trial Submissions at Paragraph 8.

[note: 10]Prosecution’s End of Trial Submissions at Paragraph 9.

[note: 11]Prosecution’s End of Trial Submissions at Paragraph 17.

[note: 12]Prosecution’s End of Trial Submissions at Paragraph 8.

[note: 13]Prosecution’s End of Trial Submissions at Paragraph 18(a).

[note: 14]Prosecution’s End of Trial Submissions at Paragraph 18(c).

[note: 15]Prosecution’s End of Trial Submissions at Paragraphs 28 and 29.

[note: 16]Prosecution’s End of Trial Submissions at Paragraph 45.

[note: 17]Prosecution’s End of Trial Submissions at Paragraph 19.

[note: 18]Prosecution’s End of Trial Submissions at Paragraphs 5 and 24.

[note: 19]Prosecution’s End of Trial Submissions at Paragraph 24(a).

[note: 20]Prosecution’s End of Trial Submissions at Paragraph 24(b).

[note: 21]Prosecution’s End of Trial Submissions at Paragraphs 24(b) and 24(c).

[note: 22]Prosecution’s End of Trial Submissions at Paragraph 24(c).

[note: 23]Prosecution’s End of Trial Submissions at Paragraph 36.

[note: 24]Notes of Evidence (“NE”), 3 July 2023, 62/7-8.

[note: 25]NE, 3 July 2023, 74/22.

[note: 26]NE, 3 July 2023, 74/3.

[note: 27]NE, 3 July 2023, 82/24-29.

[note: 28]NE, 4 July 2023, 4/16, 5/6.

[note: 29]NE, 4 July 2023, 4/25.

[note: 30]NE, 4 July 2023, 16/5.

[note: 31]NE, 4 July 2023, 23/13.

[note: 32]Defence Closing Submissions dated 22 April 2024 (“Defence Closing Submissions”) at Paragraph 69.

[note: 33]Defence Closing Submissions at Paragraph 69.

[note: 34]Defence Closing Submissions at Paragraph 91.

[note: 35]Defence Closing Submissions at Paragraphs 69 and 88.

[note: 36]Defence Closing Submissions at Paragraph 74.

[note: 37]Defence Closing Submissions at Paragraph 73.

[note: 38]Defence Closing Submissions at Paragraphs 87 and 88.

[note: 39]Defence Closing Submissions at Paragraph 95.

[note: 40]Defence Closing Submissions at Paragraph 96.

[note: 41]Defence Closing Submissions at Paragraph 97.

[note: 42]NE, 7 November 2023, 3/1.

[note: 43]NE, 8 February 2024, 10/18-19.

[note: 44]NE, 7 November 2023, 46/4-5.

[note: 45]NE, 8 February 2024, 10/17.

[note: 46]NE, 8 November 2023, 24/13-15.

[note: 47]NE, 7 November 2023, 92/16.

[note: 48]NE, 7 November 2023, 104/6.

[note: 49]NE, 7 November 2023, 32/13.

[note: 50]NE, 7 November 2023, 107/17.

[note: 51]NE, 7 November 2023, 32/28-33/8.

[note: 52]NE, 7 November 2023, 99/28-29.

[note: 53]NE, 7 November 2023, 104/11.

[note: 54]NE, 7 November 2023, 39/12-13.

[note: 55]NE, 7 November 2023, 54/6.

[note: 56]NE, 15 May 2024, 3/13.

[note: 57]NE, 7 November 2023, 94/5.

[note: 58]NE, 7 November 2023, 97/17.

[note: 59]NE, 7 November 2023, 97/22.

[note: 60]NE, 7 November 2023, 110/2.

[note: 61]NE, 8 November 2023, 26/20-23.

[note: 62]NE, 8 November 2023, 34/20-21.

[note: 63]NE, 8 November 2023, 48/24-27.

[note: 64]NE, 8 November 2023, 36/19-20.

[note: 65]NE, 8 November 2023, 58/6-10.

[note: 66]NE, 8 November 2023, 52/28-53/1.

[note: 67]NE, 7 November 2023, 19/3-7.

[note: 68]NE, 8 November 2023, 77/28-30.

[note: 69]NE, 8 November 2023, 77/20.

[note: 70]NE, 8 November 2023, 77/22.

[note: 71]NE, 8 November 2023, 81/20-21.

[note: 72]NE, 8 November 2023, 83/15, 83/17-18.

[note: 73]NE, 7 November 2023, 113/13.

[note: 74]NE, 8 November 2023, 110/6.

[note: 75]NE, 7 November 2023, 113/24-27.

[note: 76]NE, 7 November 2023, 113/29-31.

[note: 77]NE, 8 November 2023, 110/30-32.

[note: 78]NE, 7 November 2023, 114/30-115/1.

[note: 79]NE, 7 November 2023, 115/2.

[note: 80]NE, 7 November 2023, 115/25.

[note: 81]NE, 7 November 2023, 116/19.

[note: 82]NE, 8 November 2023, 137/19.

[note: 83]NE, 8 November 2023, 140/8.

[note: 84]NE, 8 November 2023, 30/4-5.

[note: 85]NE, 8 November 2023, 30/8-12.

[note: 86]NE, 8 November 2023, 8/1-4; 8/27-9/3.

[note: 87]NE, 8 November 2023, 35/16-17.

[note: 88]NE, 7 November 2023, 96/11-98/5.

[note: 89]Prosecution’s End of Trial Submissions at Paragraphs 40 and 41.

[note: 90]NE, 8 November 2023, 73/31-32.

[note: 91]NE, 8 November 2023, 142/19-21.

[note: 92]Prosecution’s End of Trial Submissions at Paragraph 1.

[note: 93]NE, 7 November 2023, 67/19-25.

[note: 94]NE, 8 November 2023, 45/23-26.

[note: 95]NE, 8 November 2023, 117/30-31.

[note: 96]NE, 8 November 2023, 130/13-131/3.

[note: 97]NE, 8 November 2023, 122/19-23.

[note: 98]NE, 8 November 2023, 122/25-29.

[note: 99]NE, 7 November 2023, 113/11-15.

[note: 100]NE, 8 November 2023, 146/22-28.

[note: 101]NE, 8 November 2023, 31/19-21.

[note: 102]NE, 8 November 2023, 30/4-7.

[note: 103]NE, 8 November 2023, 33/16-18.

[note: 104]NE, 8 February 2024, 9/3, 9/6-7.

[note: 105]NE, 7 November 2023, 94/22.

[note: 106]NE, 7 November 2023, 94/29-31.

[note: 107]NE, 7 November 2023, 94/10-12.

[note: 108]NE, 8 November 2023, 39/28-32.

[note: 109]NE, 8 November 2023, 37/26-27.

[note: 110]Prosecution’s End of Trial Submissions at Paragraph 34(c).

[note: 111]NE, 7 November 2023, 109/19-30.

"},{"tags":["Tort – Defamation","Tort – Defamation – Publication – The effect of posting a statement on a Facebook page","Tort – Defamation – Justification – Whether the failure to call for annual general meetings, laying the company’s financial statements, and accounting to the shareholders can amount to oppressive conduct","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota is wrongful utilisation and/or misappropriation of the company’s money","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert breach of fiduciary duty","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert criminal breach of trust","Civil Procedure – Costs"],"date":"2024-10-01","court":"District Court","case-number":"District Court Originating Claims Nos 714 and 715 of 2023, District Court's Appeals No. 12 and 13 of 2024","title":"Thong Chee Leong v Yong Tian Cheng Terrence and another matter","citation":"[2024] SGDC 255","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32350-SSP.xml","counsel":["Mr Balachandran Suren Jaesh (Bishop Law Corporation) for the claimants","Mr Ivan Ng Khai Lee and Ms Phyllis Wong Shi Ting (Infinitus Law Corporation) for the defendant."],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Ng Tee Tze Allen","html":"Thong Chee Leong v Yong Tian Cheng Terrence and another matter

Thong Chee Leong v Yong Tian Cheng Terrence and another matter
[2024] SGDC 255

Case Number:District Court Originating Claims Nos 714 and 715 of 2023, District Court's Appeals No. 12 and 13 of 2024
Decision Date:01 October 2024
Tribunal/Court:District Court
Coram: Ng Tee Tze Allen
Counsel Name(s): Mr Balachandran Suren Jaesh (Bishop Law Corporation) for the claimants; Mr Ivan Ng Khai Lee and Ms Phyllis Wong Shi Ting (Infinitus Law Corporation) for the defendant.
Parties: Thong Chee Leong — Yong Tian Cheng Terrence — Chow Chee Chang Samson

Tort – Defamation

Tort – Defamation – Publication – The effect of posting a statement on a Facebook page

Tort – Defamation – Justification – Whether the failure to call for annual general meetings, laying the company’s financial statements, and accounting to the shareholders can amount to oppressive conduct

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota is wrongful utilisation and/or misappropriation of the company’s money

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert breach of fiduciary duty

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert criminal breach of trust

Civil Procedure – Costs

1 October 2024

District Judge Ng Tee Tze Allen:

Introduction

1       DC/OC 714/2023 (“DC714”) and DC/OC 715/2023 (“DC715”) are defamation actions arising out of a company dispute.

2       Mr Thong Chee Leong is the claimant in DC714 and Mr Samson Chow the claimant in DC715. They are the directors of M E Eateries Pte Ltd (the “Company”). They have sued Mr Yong Tian Cheng Terrence for posting a letter of demand on a Facebook page (the “Facebook Page”).

3       The claimants took issue with six statements in the letter of demand. Five of the six statements concerned both claimants. Broadly speaking, the net effect of these five statements was that:

(a)     the claimants failed in their duties to account for the Company’s affairs or to furnish the financial statements for 2020 when requested, and this lack of transparency amounted to minority oppression; and

(b)     the claimants wrongly utilised and/or misappropriated the Company’s funds and there was reasonable grounds that the claimants breached their fiduciary duties and/or committed criminal breach of trust.

4       In my view, although these five statements are defamatory, the defence of justification is made out:

(a)     Starting with the statements concerning the claimants’ failure to account and their alleged oppressive conduct, the claimants admitted that they were duty-bound to account to the shareholders for the Company’s business and finances. Notwithstanding these duties, the claimants admitted that they had failed to: (i) call an annual general meeting for the financial years 2020 and 2021; (ii) place before the shareholders financial statements for either year; or (iii) account to the shareholders the depletion of the Company’s cashflow.

(b)     As for the statements concerning the wrongful utilisation of funds, misappropriation, breach of fiduciary duties, and criminal breach of trust, the claimants admitted that they had permitted / caused the Company to make CPF contributions to Mr Thong’s friends and relatives who did not work for the Company.

(c)     Further, the claimants’ attempt to legitimise these payments did not help them. According to the claimants, these payments were made to increase the Company’s foreign worker quota. In my view, this explanation is lacking. It does not take away from the fact that the Company’s funds were being diverted to pay phantom workers who did not work for it. Furthermore, the stated purpose is illegal and exposed the Company to criminal liability. It is thus objectively difficult to see how an intelligent and honest director could have believed that this is for the Company’s interest. And the claimants’ evidence on their subjective intentions was poor.

5       The remaining statement concerned only Mr Thong and a period before Mr Thong was appointed one of the Company’s directors. It alleged that Mr Thong had: (a) forcefully and wrongfully gained control of the Company’s invoices and books, and (b) refused to return them to the defendant (the then director).

6       I found this statement to be defamatory as well. But I did not think it was fully justified. In particular, the evidence showed that the defendant had voluntarily passed these documents to Mr Thong. It was thus not correct to allege that he had “forcefully or wrongfully". I awarded Mr Thong S$2,000 (inclusive of aggravated damages).

7       The claimants have appealed against my decision. These are the full grounds of my decision.

Facts

The incorporation of the Company and its business

8       On 13 July 2018, the Company was incorporated. At the time of its incorporation, its shareholders were, and continue to be:[note: 1]

(a)     Mr Thong (i.e. the claimant in DC714) who held 65% of the Company’s shares;

(b)     The defendant who held 15% of the Company’s shares;

(c)     Ms Lim Yen Yen who held 15% of the Company’s shares; and

(d)     Mdm Lim Chew Tee who held 5% of the Company’s shares.

9       The Company was incorporated to operate a food and beverage business in Mount Elizabeth Novena Hospital. This took the form of Killiney Kopitiam outlet (the “Killiney store”).[note: 2]

10     The defendant was appointed the Company’s director at its incorporation. He also managed the Company and the Killiney store.[note: 3]

11     This continued for about two years.

The claimants replaced the defendant as the Company’s directors

12     On or around 4 November 2020, Mr Thong signed a written Member’s Resolution to:[note: 4]

(a)     remove the defendant from his office as a director of the Company with immediate effect; and

(b)     appoint Mr Chow (i.e. the claimant in DC715) as a director of the Company.

13     Two weeks later, on 18 November 2020, Mr Thong was appointed a director of the Company.[note: 5]

14     There was no need to explore the reasons for these events. Suffice to say, the claimants alleged,[note: 6] and the defendant denied,[note: 7] that the removal of the defendant as director and the appointment of the claimants as directors were due to the defendant mismanaging the Company.

15     There was also no need to determine: (a) whether the rest of the shareholders agreed to the defendant’s removal and the claimants’ appointment, and (b) whether the steps taken to effect the aforesaid changes in office complied with the Company’s constitution and/or the Companies Act 1967. On the defendant’s own case, he resigned from his directorship shortly after the 4 November 2020 Member’s Resolution.[note: 8] All parties also agreed that Mr Chow and Mr Thong were appointed to the Company’s board of directors on 4 November 2020 and 18 November 2020 respectively.

16     Thereafter, the defendant handed over the management of the Company and the Killiney store to the claimants.

17     About a year later, in or around October to November 2021, the Company’s lease with Mount Elizabeth Novena Hospital ended, and the hospital decided not to renew the lease.[note: 9] On Mr Thong’s evidence, “there was no reason to continue to keep the Company open as it did not have any other business” and that he intended to voluntarily wind-up the Company.[note: 10]

The letter of demand

18     On or around 9 March 2022, Infinitus Law Corporation (“Infinitus Law”) sent a letter of demand to the claimants on behalf of the remaining shareholders of the Company. Namely, the defendant, Ms. Lim Yen Yen, and Mr Poh Wen Jie who acted as a proxy for Mdm Lim Chew Tee.[note: 11]

19     I will return to the contents of the letter of demand later. For now, it is sufficient to note that there is no dispute as to the contents of the letter of demand and that it contained the six statements which the claimants took issue with.

The defendant posted the letter of demand on the Facebook Page

20     This brings me to the Facebook Page that the letter of demand was posted on. The Facebook Page was created by the defendant on 17 October 2018 when he was managing the Company and its business. It was originally named “Killiney Mount Elizabeth Novena Hospital”.[note: 12]

21     In or around June 2021, i.e., about seven months after the defendant stopped managing the Company and the claimants took charge (see [12]-[16] above), the defendant started posting images and posts on the Facebook Page which suggested that the Company’s business was failing. These Facebook posts included the following:

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22     On 10 November 2021, the defendant changed the name of the Facebook Page from “Killiney Mount Elizabeth Novena Hospital” to “Thong Chee Leong”, i.e. the name of the claimant in DC714.[note: 13]

23     On 4 April 2022, the defendant posted the letter of demand on the Facebook Page, with the comment “Someone is going to get sued until pant drop.” It is common ground that the entire letter of demand could be read in this Facebook post. A copy of the Facebook post with the letter of demand is reproduced below:

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24     It appeared that the Facebook Page has since been removed and can no longer be seen by the public.

The parties’ cases

25     The elements to establish the tort of defamation were not in dispute. First, the statement in issue must bear a defamatory meaning. Second, it must refer to the plaintiff. And third, the statement must have been published to a third party: Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 (“Golden Season”) at [35].

26     The claimants’ case is that the defendant had defamed them by publishing the letter of demand on the Facebook Page. In this regard, they pleaded that the following six statements (collectively, the “Statements”) in the letter of demand were defamatory and referred to them:

(a)     The first statement (“Statement 1”) is Header B and [7] of the letter of demand. Both claimants took issue with Statement 1, which reads:[note: 14]

B.    Failure to account for the Company’s business and finances.

7.    Having set out the foregoing, we are instructed that both of you had failed as the directors [sic] of the Company, to account for the affairs of the Company to our clients, including the state of the Company’s operations, business, and finances.”

(b)     The second statement (“Statement 2”) concerned only Mr Thong. It is found in [8] of the letter of demand:[note: 15]

… Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books (from October 2019 onwards) (“the Company’s financial documents”) through the Company’s accountant and refused access of the same to Mr Yong; even though Mr Thong is not entitled to retain the Company’s financial documents…

(c)     The third statement (“Statement 3”) is the last sentence of [10] of the letter of demand. Both claimants took issue with Statement 3, which reads:[note: 16]

10.    … However, both of you had blatantly failed, refused and/or neglected to conduct proper accounting and furnish our clients with FS 2020 when they requested the same.

(d)     The fourth statement (“Statement 4”) is [12] of the letter of demand. Both claimants took issue with Statement 4, which reads:[note: 17]

12.    Furthermore, both of you had blatantly failed, refused, and/or neglected to account when specific enquires, with regard to the Company’s affairs, were made to you. Your lack of transparency and failure to account to our clients is oppression of minority of shareholders’ rights contrary to Section 210 of the Companies Act 1967.

(e)     The fifth statement (“Statement 5”) is Header D and [17] of the letter of demand. Both claimants took issue with Statement 5 which reads:[note: 18]

D.    Misappropriation of Company funds

17.    Apart from your oppressive conduct, you also appear to have wrongfully utilized the Company’s funds and/or had misappropriated the same.

(f)     The sixth statement (“Statement 6”) is [25] of the letter of demand. Both claimants took issue with Statement 6 which reads:[note: 19]

25.    Based on the sequence of events, foreshadowed, our clients have reasonable grounds to believe that not only have the both of you breached your fiduciary duties to the Company, there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code.

27     The defendant’s case was as follows:

(a)     While the defendant admitted to posting the letter of demand on the Facebook Page, he denied that it was published to third parties;

(b)     While the defendant accepted the letter of demand contained the six Statements, he denied that they were defamatory; and

(c)     In any event, the defences of justification and/or fair comment applied.

Issues

28     I will start with my thoughts on whether the letter of demand was published to third parties, and if so, the extent of publication (see [31]-[55] below).

29     I will then consider whether the Statements are defamatory and whether any defences applied to them. My views will be set out thematically in the following order:

(a)     First, Statements 1, 3, and 4 will be considered. Broadly speaking, these statements alleged that the claimants failed in their duties as directors to properly account for the Company’s affairs and accounts, and that this lack of transparency amounted to minority oppression (see [57]-[79] below).

(b)     Next, Statements 5 and 6 will be considered. Broadly speaking, these statements alleged that the claimants wrongfully used and/or misappropriated Company’s money. On this basis, the defendant asserted that there were reasonable grounds to believe that: the claimants: (i) breached their fiduciary duties, and (ii) were liable for criminal breach of trust (see [81]-[114] below).

(c)     Finally, Statement 2 will be considered. This statement alleged that Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books and refused to give the defendant access to the same (see [116]-[126] below).

30     I will then move to the remedies sought by the claimants (see [127]-[140] below), before turning to costs (see [141]-[152] below).

Publication to third parties

31     The defendant’s case was that the letter of demand (and hence the Statements) was not published to third parties. He submitted that just because the letter of demand was posted on the Facebook Page did not mean that third parties had read it. He also submitted that the evidence did not support finding that the letter of demand was seen by third parties because:[note: 20]

(a)     the Facebook post which annexed the letter of demand had no likes, shares, or comments;

(b)     the claimants did not call anyone to testify that they had seen the Facebook post or the letter of demand; and

(c)     neither claimant knew for a fact that any third party had seen the Facebook post or the letter of demand.

32     On this basis, the defendant submitted that the claimants had not proved that the letter of demand was published to third parties,[note: 21] or even if there was publication, that such publication was limited.[note: 22]

Effect of posting the letter of demand on Facebook

33     As a preliminary point, it is trite that the claimants bear the burden of proving their case. This means that they bear the burden of proving that the letter of demand was read by third parties.

34     In this regard, I agree with the defendant’s submission that just because a letter of demand was posted on Facebook does not mean that it was read by third parties. In Qingdao Bohai Construction Group Co, Ltd v Goh Teck Beng [2016] 4 SLR 977 (“Qingdao”), the Court explained at [35] that publication has two components:

(a)     an act that makes the defamatory material available to a third party in a comprehensible form (“the first component”); and

(b)     the receipt of the information by a third party in such a way that it is understood (“the second component”).

35     In this case, the first component was clearly satisfied. The defendant himself admitted that he posted the letter of demand on the Facebook Page.

36     We are thus only concerned with the second component. In this regard, the Court in Qingdao also explained that not only is “uploading or posting the material on the Internet alone is not publication for the purpose of the law of defamation” (see Qingdao at [37]), there “is no presumption of law that material appearing on the Internet has been published” (see Qingdao at [41]). Similarly, just because the defendant posted the letter of demand on the Facebook Page does not mean that it was read by third parties, and this was what the claimants had to establish.

37     My views on the point are set out below.

The defendant did not dispute publication in his Defence

38     First, I accept the claimants’ submission that the defendant did not dispute the fact of publication in the Defence he filed in DC714 and DC715.

39     As noted, the main question is whether the letter of demand had been seen by third parties. In this regard, the court should not disregard the fact that a document was posted on Facebook just because its posting is no guarantee that it was read. After all, the facts surrounding the posting can give rise to a platform of facts from which the court can infer that publication has taken place. In Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128, the Court identified at [45] the considerations which might form the basis for this platform of facts:

(a)    First, the number of “likes”, “shares”, “reactions” and comments which a post draws might provide insight into the number of individuals who accessed it, especially since not every individual who reads the post will necessarily respond in such a fashion: Boltonv Stoltenberg [2018] NSWSC 1518 at [154] and [155], as upheld in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [102].

(b)    Second, the number of “friends” and “followers” the poster has on the relevant social media platform is also relevant in determining whether or not substantial publication has taken place: Pritchard v Van Nes [2016] BCJ No781 at [83].

(c)    Third, setting the privacy settings of the relevant post to “public” is also more likely to give rise to an inference that the defamatory statement had been accessed by third parties and that substantial publication arose: Doris Chia, Defamation: Principles and Procedure in Singapore and Malaysia (LexisNexis, 2016) (“Doris Chia”) at paras15.10 and 15.11.

(emphasis mine)

40     Turning to the pleadings, in [6]-[7] of their respective statements of claim filed in DC714 and DC715, Mr Thong and Mr Chow relied on the considerations set out at (b) and (c) above to establish publication. And notably, the defendant did not deny or not admit to the same. The relevant paragraphs are reproduced in the table below:

 

Statement of Claim

Defence

DC714

6. On 4th April 2022, the Defendant published and/or caused to be published on the Facebook Business Page a copy of a letter of demand from his lawyers Infinitus Law addressed to the Claimant. The letter of demand expressly stated the Claimant’s name at the top of the letter and made repeated references to the Claimant (the “LOD”). The publication bore the caption “Someone is going to get sued until pant drop”.

7. The Facebook business page is a public page which can be viewed by anyone on Facebook and is followed by 394 people. In addition, at least 16 of the Claimant’s Facebook Friends had also visited the page and seen the LOD. Publication has been ongoing from 4th April 2022 till date.

15. Paragraph 6 of the SOC is admitted insofar as the Defendant did publish and/or caused to be published a copy of Infinitus Law’s LOD on the Facebook Business Page.

…

20. Paragraph 7 of the SOC is admitted.

DC715

6. On 4th April 2022, the Defendant published and/or caused to be published on the Facebook Business Page a copy of a letter of demand from his lawyers Infinitus Law addressed to the Claimant. The letter of demand expressly stated the Claimant’s name at the top of the letter and made repeated references to the Claimant (the “LOD”). The publication bore the caption “Someone is going to get sued until pant drop”.

7. The Facebook business page is a public page which can be viewed by anyone on Facebook and is followed by 394 people. In addition, at least 16 of the Claimant’s Facebook Friends had also visited the page and seen the LOD. Publication has been ongoing from 4th April 2022 till date.

15. Paragraph 6 of the SOC is admitted insofar as the Defendant did publish and/or caused to be published a copy of Infinitus Law’s LOD on the Facebook Business Page.

…

Paragraph 7 of the SOC is admitted insofar as the Facebook business page is a public page which can be viewed by anyone on Facebook. The Defendant denies that at least 16 of the Claimant’s Facebook Friends had visited the page and seen the LOD. The Claimant is put to strict proof thereof.



41     This was significant. It is trite that the purpose of pleadings is to define the issues in dispute so that the litigation (and particularly, the trial) can be conducted fairly, openly, without surprise: Singapore Civil Procedure 2024 Volume 1, (Sweet & Maxwell) at [9/13/1]. Thus, if there are allegations which the defendant did not agree with, he had to traverse them in his Defence. However, the defendant did not do that. As seen, the furthest that the defendant went when denying publication was in DC715 where he denied that 16 of Mr Chow's Facebook friends had seen the letter of demand. Nowhere in the Defences which he filed in DC714 and DC715, did he deny, not admit, or put in issue the allegation that the letter of demand was seen by third parties.

42     In fact, this remained the defendant’s position in his affidavit of evidence in chief (“AEIC”) which he filed for both suits. Not only did he fail to deny, not admit, or put in issue the point of publication, he took the position that “posting the letter of demand on Facebook was necessary and justified”[note: 23] because doing so would “make it clear, once and for all, that [he was] not a director of the [Company]”.[note: 24]

43     Under these circumstances, I have considerable sympathy for the claimants’ submission that it is too late for the defendant to contest the fact of publication. Having failed to traverse the point in his Defence and maintaining this position in his AEIC, the defendant would have led the claimants to believe that (a) the element of publication was a non-issue such that (b) there was no need to lead any evidence on the point. It is too late for the defendant to change his position at trial,[note: 25] and to submit that the claimants failed to discharge their burden of proof.

44     In any event, I was of the view that the evidence indicated that the letter of demand was published to third parties (albeit to a limited extent).

Limited publication of the letter of demand to third parties

45     Apart from the pleadings, the evidence also supported the inference that the letter of demand (and hence, the Statements) had been read by third parties.

46     The starting point of the analysis is that there is no direct evidence as to the persons who saw the Facebook post and the letter of demand. Mr Thong’s evidence was that the only reason he believed that third parties saw the post is because “it’s a Facebook account”.[note: 26] And while Mr Chow claimed in his AEIC that at least 16 of his friends had viewed the post, he admitted in trial that he did not know for sure whether they saw it and that what he meant was that “they may have seen” it.[note: 27] Indeed, it was evident from his cross-examination that he had no concrete basis for asserting that 16 of his friends had viewed the post. In Mr Chow’s words:[note: 28]

Just---just that these are the people. I cannot assume that they have not seen it---seen my post, seen all these posts. I cannot assume that they never seen. I cannot assume that all have seen.

47     As such, the extent of publication had to be determined based on the facts surrounding the Facebook post.

48     In this respect, the claimants’ case was that (a) the defendant had posted the letter of demand so that the public would see it;[note: 29] (b) “an unknown number of multiple people would have seen the posts simply by virtue of it being published on the [Facebook Page] which had 394 followers”[note: 30]; and (c) “at least 10-20% [of the Facebook Page’s] 394 followers” would have seen the post.[note: 31]

49     I accepted the claimants’ submissions to a limited extent. As noted at [39] above, the following considerations are relevant:

(a)     the number of “likes”, “shares”, “reactions” and comments which the post drew;

(b)     the number of “friends” or “followers” the Facebook Page had; and

(c)     the privacy setting of the Facebook Page – whereby a “public” setting is more likely to give rise to an inference that the defamatory statement had been accessed by third parties and that substantial publication arose

50     I am prepared to accept that the fact that the Facebook Page was a public page which garnered 384 “Likes”[note: 32] serves as a “platform of facts” from which publication can be inferred. However, I am in no position to find that at least 10%-20% of the Facebook Page’s followers had seen the Facebook post and letter of demand.

51     In coming to this decision, I accept that the defendant had posted the letter of demand so that the public would see it. On his own evidence, he posted the letter of demand so that people would know that he was no longer the director of the Company.[note: 33] However, there is a difference between: (a) the defendant’s aims for posting the letter of demand on Facebook and (b) whether he achieved those aims. The former does not prove the latter. Just because the defendant wanted many people to read the letter of demand does not mean that many people did.

52     I turn to the claimants’ submissions that the Facebook Page had 394 followers. In this respect, it appeared that the parties had equated a Facebook page’s “followers” and with the number of “likes” that it had. Thus, even though the claimants’ pleaded that the Facebook Page had 394 followers, they did not refer to this figure at all in their AEICs. Instead, they referred to the number of “likes” the Facebook Page had.[note: 34] Possibly due to this, the defendant’s cross examination of the claimants proceeded on the number of “likes” that the Facebook Page had.

53     Be that as it may, little turned on this distinction because no evidence was led (whether factual or expert) to show the extent that the Facebook Page’s “likes” or “follows” translated into greater viewership of its Facebook posts. Now, I accept that it may be the case that a person who “liked” or “followed” a Facebook page would have a greater likelihood of receiving notifications of new posts from that Facebook page and/or having such posts appear on his/her news feed. And if so, there is a higher likelihood that such persons would read these posts. However, the extent of this happening turns on Facebook’s algorithm. And without any evidence to show the impact that such “likes” and “follows” had, I am unable to determine (or estimate) the number of people who would have read the post and letter of demand based on the Facebook page’s “likes” or “followers”.

54     What I thought was more telling was that the Facebook post containing the letter of demand had no likes, comments, or forwards. [note: 35] Now, I accept that this does not mean that nobody viewed the post. Afterall, it is completely conceivable for a person to choose not to like, comment, or forward the post after reading it. However, the complete lack of response undermined a finding that there has been extensive publication. It also buttressed the defendant’s submission that the claimants had no positive evidence as to the number of persons who viewed the post and the letter of demand.

55     For these reasons, I am of the view that the publication of the Facebook post and the letter of demand to third parties was limited.

56     I turn to set out my views on: (a) whether the Statements were defamatory; and (b) if so, whether a defence applied.

Statements 1, 3, and 4: Allegations that the claimants failed in their director duties

Statements 1, 3, and 4 were defamatory

57     As outlined at [29] above, I will set out my views on Statements 1, 3, and 4 together.

58     I begin with my views on the claimants’ Closing Submissions. In my view, these Closing Submissions were bare and lacking. They did not explain why each of the Statements that the claimants took issue with was defamatory. Instead, the claimants’ Closing Submissions made the generic and unsubstantiated allegations (presumably for all six Statements together) that “the words used by the [d]efendant were defamatory”,[note: 36] that the defendant had “made serious allegations about impropriety and criminal offences”[note: 37], that the claimants’ reputation “would have been lowered in the minds of any people who had come across the defamatory posts”,[note: 38] and that the words used “were highly defamatory and damaging to both of the [claimants’] reputations.”[note: 39]

59     Be that as it may, I am of the view that the Statements 1, 3, and 4 were defamatory in that they would lower the claimants in the estimation of right-thinking members of society generally: Golden Season at [36]. Broadly speaking, these statements alleged that the claimants failed in their duties as directors to properly account for the Company’s finances and accounts. Statements 1, 3, and 4 are reproduced for ease of reference:

(a)     Statement 1 is Header B and [7] of the letter of demand. It reads:[note: 40]

B.    Failure to account for the Company’s business and finances.

7.    Having set out the foregoing, we are instructed that both of you had failed as the directors, of the Company, to account for the affairs of the Company to our clients, including the state of the Company’s operations, business and finances.”

(b)     Statement 3 is the last sentence of [10] of the letter of demand. It reads:[note: 41]

10.    … However, both of you had blatantly failed, refused and/or neglected to conduct proper accounting and furnish our clients with FS 2020 when they requested the same.

(c)     Statement 4 is [12] of the letter of demand. It reads:[note: 42]

12.    Furthermore, both of you had blatantly failed, refused and/or neglected to account when specific enquires, with regards to the Company’s affairs were made to you. Your lack of transparency and failure to account to our clients is oppression of minority of shareholders’ rights contrary to Section 210 of the Companies Act 1967.

60     I formed this view not only based on the plain and ordinary meaning of these statements, but also when the letter of demand is considered as a whole. After all, it is trite that “the bane and the antidote must be taken together”: Golden Season at [37(e)]. And in this regard, the following paragraphs of the letter of demand are relevant:

(a)     [13]-[16] where it is alleged that the claimants failed to call for an annual general meeting (“AGM”) for the financial years 2020 and 2021 (“FY2020” and “FY 2021” respectively);[note: 43]

(b)     [10]-[11] where it is alleged that the claimants failed to furnish the financial statements for FY2020 and FY2021 (“FS2020” and “FS2021” respectively);[note: 44]

(c)     [12] where it is alleged that claimants failed to account when specific enquiries on the Company’s affairs were made.[note: 45]

61     Quite clearly, Statements 1, 3 and 4 were defamatory whether read in isolation or in the relevant context. Indeed, on the defendant’s own interpretation of Statements 1, 3, and 4 impugned the claimants in their roles as directors of the Company. On his case, all three statements alleged that the claimants had a duty to account for the affairs of the Company to the shareholders, but they had failed to do so.[note: 46] Not only that, Statement 3 went further to allege that the claimants had failed to furnish a copy of the financial statements for financial year 2020 despite the shareholder’s request. And Statement 4 further alleged that the claimants’ lack of transparency and failure to account amounted to minority oppression.

Statements 1, 3 and 4 were justified

62     I turn to the defendant’s defence of justification. Justification is an absolute defence in a civil defamation claim. To succeed in the defence of justification, the defendant does not need to prove the literal truth of the defamatory imputation. It is sufficient to prove the substantial truth of the defamatory imputation: Golden Season at [85]-[86]; Clerk & Lindsell on Torts (Sweet & Maxwell, 22 Ed, 2018) (“Clerk and Lindsell”) at [22-71].

63     In this regard, the claimants’ Closing Submissions were again lacking. No attempt was made to distinguish or explain why the defamatory imputation of each of the Statements was wrong. Instead, the claimants made broad and sweeping submissions for all six Statements. Namely, that even though the defendant bore the burden of proof, he had “provided absolutely no evidence of any worth”[note: 47] and that he had “done absolutely nothing of credit to establish his claims of justification and back up his version of events with tangible evidence.”[note: 48]

64     I accept that the defendant bore the burden of proving his defence of justification. However, I do not accept that there is no evidence to support the defence of justification. In my view, the defence of justification was established on the claimants’ own evidence. As elaborated below, the claimants’ own evidence showed:

(a)     First, that the claimants were directors of the Company. And as such, they were duty bound to call for AGMs and to lay the financial statements of the Company at these AGMs (see [66]-[68] below).

(b)     Second, notwithstanding their duties, they failed to call for AGMs or lay the financial statements before the Company for FY2020 and FY2021. And despite signing off on FS2020, both claimants did not take steps to ensure its accuracy (see [69]-[72] below).

Critically, however, the claimants made no attempt to deal with their own evidence.

65     In my view, the claimants’ breaches, together with the claimants’ failure to account to the shareholders, was a betrayal of the shareholders’ expectations and amounted to minority oppression (see [73]-[78] below).

The claimants as directors were obliged to call for AGMs and to account for the finances of the Company

66     It was common ground that both claimants were directors of the Company at the material time that the annual general meetings for FY2020 and FY2021 were to be called.

67     It was also uncontroversial that they were statutorily obliged to ensure that the Company call annual general meetings. Indeed, the claimants would have committed an offence if the Company did not do so. Sections 175(1)(b) and (4)(a) of the Companies Act 1967 read:

Annual general meeting

175.—(1)    Subject to this section and section 175A, a general meeting of every company to be called the “annual general meeting” must, in addition to any other meeting, be held after the end of each financial year within —

(a)    4 months in the case of a public company that is listed; or

(b)     6 months in the case of any other company.

…

(4)     If default is made in holding an annual general meeting —

(a)    the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty; and

(b)    the Court may on the application of any member order a general meeting to be called.

…

(emphasis mine)

68     Section 201(1) of the Companies Act 1967 further imposed a duty on the claimants as directors to “lay before the company at its annual general meeting the financial statements for the financial year in respect of which the annual general meeting is held”. And here, section 201(2) of the Companies Act 1967 provides that the financial statement must “give a true and fair view of the financial position and performance of the company”.

The claimants failed to call for AGMs, place financial statements before the Company, or ensure proper accounting

69     Notwithstanding their statutory duties, the claimants’ own evidence was that they failed to call for the AGMs for FY2020 and FY2021. Consequently, they also failed to lay FS2020 and FS2021 before the Company or its shareholders.

70     Starting with Mr Chow, his evidence was that he did not touch the finances of the Company. It was also his evidence that he did not ensure notices for the FY2020 and FY2021 AGMs were given to the shareholders because “the other director [was] taking care of it”:[note: 49]

Q    So, the long and short of it, I will speak---let me summarise it for you. Your position to this---before this Court today is as long as it comes to money, finances, financial statements, it is “none of my business because this is not my scope of responsibility”.

A    I---I won’t put it none of my business, but he has his job. I’m not touching the finances.

…

Q    You have failed to give notices of AGM to the shareholders for FY 2020 and FY 2021 as a director of the company. You may agree or disagree.

A    As my job scope, I agree that I did not do that part, but the other director is taking care of it.

(emphasis mine)

71     As for the "other director", Mr Thong admitted that even though FS2020 was uploaded onto the ACRA, the AGMs for both FY2020 and FY2021 were not called and that the financial statements for these financial years were not laid before the Company:[note: 50]

Q    Mr Thong, you are in Court today and these are reports obtained from a government body. It says AGM 21st of March 2021 last held, annual return last filed 5th of July 2021.

A    Yes, because Soon Seng, the corp sec---secretary filed a wrong report.

…

Q    But it is---you are not disputing that the financial statements for FY 2020 and 2021 were not given to your shareholders, correct?

A     Yes.

Q     You’re also not disputing that the AGM for these 2 years were not called by you.

A     Yes.

(emphasis mine)

72     Furthermore, the evidence showed that both claimants also failed to ensure proper accounting. The questions raised as to the contents of FS2020 went unanswered,[note: 51] and the evidence of both claimants showed that they did nothing to ensure FS2020's veracity. Mr Thong admitted to signing it blindly, and Mr Chow said he "assumed" that it was correct:

(a)     Even though Mr Thong accepted that he was obliged to conduct proper accounting,[note: 52] he admitted to signing off on FS2020 blindly and as such, failing in his duties:[note: 53]

Q:    We deny that, but assuming it is truth, you signed it blindly, right?

A     Yes.

Q    You are the director in 2020, correct?

A    Yes.

Q    Now, I put it to you that it is your obligation as the director of the companies to conduct proper accounting. You may agree or disagree.

A    Agree.

Q      And in this instance, especially financial statement 2020, you have failed utterly. You agree or disagree?

A      Agree.

(emphasis mine)

(b)     Mr Chow also accepted that he had a duty to ensure proper accounting.[note: 54] However, it was clear from his evidence that he did not ensure that FS2020 was accurate. On his evidence, he had simply “browsed through” FS2020 and “assumed” that they were correct.[note: 55]

Q    And I put it to you that you were aware, at all material times, that financial statement 2020 was produced.

A    No, I was not totally aware.

Q    You signed.

A    Yah.

Q    If it wasn’t produced, what did you sign, Mr Chow?

A     Basically, I just signed whatever I need to sign to complete the returns.

Q    Okay. So, you---did you [review] that document?

A    You mean the numbers?

Q      Did you [review] financial statements 2020?

A      Numbers, I just browsed through. I signed.

…

Q    It wasn’t important to you, okay, whether or not you are affixing your signature to a document which may be falsified, right?

…

A      ---I assume the numbers are correct.

Q      Oh, okay. So, you assume that the numbers were correct.

A      Yes.

(emphasis mine)

The claimants’ breaches amounted to minority oppression

73     I turn to consider the allegation of minority oppression. In determining whether there is prejudicial conduct that amounts to minority oppression, Hans Tjio, Pearlie Koh, Lee Pey Woan, Corporate Law (Academy Publishing) (“Corporate Law”) explains at [11.074] that prejudicial conduct includes situations where shareholder expectations are disappointed. It cites McGuinness v Bremner plc [1988] BCLC 673 (“McGuinness”) as an example of such prejudice. In McGuinness, there was delay of several months by the board of directors in convening a general meeting requisitioned by the petitioners.

74     In this case, the shareholders had a clear right to expect proper accounting, AGMs to be called in accordance with the provisions of the Companies Act 1967, and the financial statements to be placed at these AGMs. Indeed, if there was any doubt on the point, such doubt is put to rest by Articles 47(1) and 102(1) of the Company’s constitution which provided:[note: 56]

General meeting

47—(1)    An annual general meeting of the company must be held in accordance with the provisions of the Act.

…

Financial statements

102—(1)    The directors must –

(a)    cause proper accounting and other records to be kept;

(b)    distribute copies of financial statements and other documents as required by the Act; and

(c)    …

In this respect, “Act” is defined in Article 6(1) as “the Companies Act (Cap.50)”.[note: 57]

75     However, the expectations of the minority shareholders represented by Infinitus Law (see [8] above) were clearly disappointed. As seen at [69]-[72] above, the claimants failed to call for AGMs for FY2020 and FY2021, lay the financial statements for these financial years before the Company and its shareholders, or ensure proper accounting.

76     I am also of the view that the claimants’ failure to call for AGMs and lay the financial statements was a significant infringement of the shareholders’ rights. As explained in Corporate Law at [08.20], annual general meetings are when shareholders consider matters such as the company’s annual financial statements, and the directors and auditors’ reports. It is also there that shareholders may raise other issues for deliberation.

77     Indeed, the importance of AGMs and having the right to question the directors was underscored by how the claimants failed to account to the shareholders. To take one example, and on Mr Thong’s own evidence, even though the Company’s cash flow dropped by about S$100,000 between November 2020 and February 2021, this was never explained to the shareholders.[note: 58] While I am not saying that this drop in cashflow was due to improper reasons, the fact remains that the shareholders are entitled to know of the “drop” and why this was happening. And here, I found utterly unpersuasive Mr Thong’s claim that he would show them “eventually”.[note: 59] The drop in cashflow took place in 2020 to 2021. However, he still had not accounted for the drop three years later when he gave his evidence in April 2024.[note: 60]

78     Apart from failing to call for the AGMs, the claimants also failed to explain the omission when queried by the shareholders:

(a)     On or around 31 October 2021, one Mr Poh asked Mr Thong when the Company’s accounts would be completed. However, Mr Thong did not answer the question. Instead, he simply forwarded a link to a newspaper article titled “Jailed: Former Gleneagles Hospital…”[note: 61]

(b)     Similarly, Mr Chow accepted that he did not respond to the emails he received from the shareholders complaining that no AGM was called and that the financial statements were not provided to them.[note: 62]

Sub-conclusion

79     Under these circumstances, I had little doubt that the allegations set out in Statements 1, 3, and 4 were justified. As directors, the claimants were obliged to call for AGMs and to lay the financial statements before the Company for FY2020 and FY2021. But they failed to do so and ignored / disregarded the shareholder’s queries on the topic. This is a clear betrayal of the shareholders’ expectations which significantly infringed upon their right to understand the financial status of the Company and to make decisions based on the same. In my view, this justifies the allegation of minority oppression.

80     Given my findings on justification, it is unnecessary to make any findings on the pleaded defence of fair comment. In any case, I did not think that the defendant’s submissions on fair comment brought him very far. It is trite that whereas the defence of justification applies to statements of facts, the defence of fair comment applies to comments: Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 at [59]. However, there was no attempt by the defendant to distinguish which of the Statements were facts and which were comments. He opted instead to submit on both defences in the same breath, thereby giving the impression that he had conflated the two defences.

Statements 5 and 6: Allegations of misappropriation, wrongful use of Company’s funds, breach of fiduciary duty and criminal breach of trust

Statements 5 and 6 were defamatory

81     I turn to Statements 5 and 6. In these statements, the claimants were alleged to have wrongfully used and/or misappropriated Company’s funds. It was alleged that there were reasonable grounds for believing that the claimants breached their fiduciary duties and committed criminal breach of trust:

(a)     Statement 5 is Header D and [17] of the letter of demand. It reads:[note: 63]

D.    Misappropriation of Company funds

17.    Apart from your oppressive conduct, you also appear to have wrongfully utilized the Company’s funds and/or had misappropriated the same.

(b)     Statement 6 is [25] of the letter of demand. It reads:[note: 64]

25.    Based on the sequence of events, foreshadowed, our clients have reasonable grounds to believe that not only have the both of you breached your fiduciary duties to the Company, there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code.

82     Notwithstanding my views of the claimants’ submissions on the defamatory meaning of the Statements (see [58] above), I am of the view that Statements 5 and 6 are defamatory. I formed this view not only based on the plain and ordinary meaning of these statements, but also the paragraphs in the letter of demand drafted in support of Statements 5 and 6. These paragraphs are:

(a)     [18]-[19] of the letter of demand which asserted that the claimants had caused the Company to make monthly CPF contributions to Mr Thong’s friends and relatives even though they did not work for the Company and as such should not be paid by the Company;[note: 65] and

(b)     [20]-[24] of the letter of demand which asserted that Mr Thong had incurred an exorbitant amount to reinstate the premises and that the reinstatement included works that was not required.[note: 66]

83     Quite clearly, therefore, Statements 5 and 6, whether read alone or in the relevant context, were alleging serious wrongdoing on the part of the claimants. This undoubtedly would have lowered the claimants in the estimation of right-thinking members of society.

Statements 5 and 6 were justified

84     I turn to the defence of justification. In this respect, I do not think that the assertion that the claimants paid too much to reinstate the property assisted the defendant. The point was not well substantiated. No objective evidence (e.g. through an expert) was led on what it would have cost to reinstate the premises. Instead, all I had was the defendant's own partisan view on the point. Furthermore, even if the assertion was true, it would not have merited the serious allegations made in Statements 5 and 6. It might have justified allegations of negligence. But it certainly does not justify allegations of misappropriation and/or wrongful use of Company funds, breach of fiduciary duty, and criminal breach of trust.

85     What was more relevant was the assertion that the claimants caused the Company to pay Mr Thong's friends and family even though they did not work for the Company. In this respect, and as I will elaborate:

(a)     It was the claimants’ own evidence that they caused the Company to pay Mr Thong’s friends and family who did not work for the Company. Notably, they did not deny this assertion. Instead, they claimed that the paying of CPF contribution to these persons was “to enable the Company to engage foreign workers” (see [86]-[91] below).

(b)     Causing the Company to pay persons who did not work for the Company (or “phantom workers” for ease of reference) is quite clearly wrongful utilisation and/or misappropriation of the Company’s money (see [92]-[98] below).

(c)     It is also a sufficient basis to assert reasonable grounds there was breach of fiduciary duties (see [99]-[108] below) and criminal breach of trust (see [109]-[114] below).

Using the Company’s funds to pay phantom workers associated with Mr Thong

86     In the letter of demand, it was alleged at [18] that the claimants had caused the Company to make monthly CPF contribution to nine persons related to Mr Thong. These persons included his wife, six of his relatives, and two of his friends. It was further alleged at [19] of the letter of demand that these persons did not work for the Company and as such should not have been paid by the Company.[note: 67]

87     The claimants all but admitted to these allegations in their joint Opening Statement. Therein, the claimants did not deny that the existence of this practice or that the claimants were perpetuating this practice. Instead, the claimants sought to legitimize the payments by stating that “the CPF was to enable the Company to engage foreign workers”:[note: 68]

36.    … The allegation about CPF to justify the allegation about misappropriation is an afterthought and the Defendant is fully aware that this act was not a misappropriation. The CPF was done to enable the Company to engage foreign workers and the Defendant was fully aware of this and chose to flagrantly mislead the Court otherwise.

(emphasis mine)

88     The claimants maintained this position when they took the stand. I start with Mr Thong. After he was referred to the aforesaid paragraph in the claimants’ Opening Statement, he admitted that the Company was making CPF contributions to “phantom workers” and that he knew this was illegal:[note: 69]

Q      Now, would you agree with me that this is an admission that the company has made CPF contributions to phantom workers?

A      Some of it.

Q      Yes or no?

A      Yes.

Q    And you know what phantom workers meant, right?

A    Yes.

Q    Do you know that it is illegal in Singapore to engage phantom workers?

A    This is---

Q      Do you know that it is illegal in Singapore to engage phantom workers?

A      Yes.

Q    But you, nonetheless, went ahead with that, right?

A    It started out with Terence.

Q    Now, Mr Thong---

A      Yes.

Q      ---I know you want to point fingers at certain directions but my question to you is you knew that it was illegal, right?

A      Yes.

Q    You do not admit that it started from Mr Yong.

A    Yes.

Q    Assuming that it did, you, as director, continued with that practice, correct?

A      Yes.

(emphasis mine)

89     As for the identities of these phantom workers, Mr Thong confirmed that the Company’s CPF statements showed that the Company was making CPF contributions to both his wife and his family members in March 2021. He also stated that save for his wife, the rest of these persons were paid CPF contributions “mainly for headcount” so that the Company could “engage more foreign workers”:[note: 70]

Q    ... These are your family members.

A      Yes.

Q    Right? Now, would you agree with me if I suggest to you, Mr Thong, that the CPF contributions of 6,178 was made in a month simply for you to engage foreign workers. This is disproportionate, isn’t it? With $6,178 of CPF contributions, you could have engaged many Singaporeans to work there.

A    But my wife do work for the company, during that point of time.

Q    Very well, apart from your wife?

A    Some is mainly for headcount.

Q      So, that you can engage more foreign workers, right?

A      Yes.

(emphasis mine)

90     In a similar vein, Mr Chow’s evidence was that “the people working on the ground are …. most of them are foreign workers. So without paying phantom workers, these workers would not have existed”,[note: 71] and that this practice of paying phantom workers already existed when the defendant handed over management of the Company to him.[note: 72]

91     To sum up, the net effect of the claimants’ case at trial was that they were perpetuating the practice of paying phantom workers who did not work for the Company to engage foreign workers.

Paying phantom workers is wrongful utilisation and/or misappropriation of Company’s funds

92     Given the claimants’ admissions, I had expected at least some attempt on the claimants’ part at legitimising the payment of phantom workers. This is especially so if, as the claimants’ solicitors argued in costs submissions (see [147] below), they believed that they had strong grounds for making these payments. However, the claimants’ closing submissions were completely silent on the point. They made, instead, the unconvincing argument that the defendant did not discharge his burden of proof because there was “absolutely no evidence of any worth” (see [63] above).

93     Under these circumstances, and given the claimants’ own admissions, I had little doubt that Statement 5 was justified. Paying phantom workers is quite clearly wrongful utilisation and/or misappropriation of Company’s funds.

94     The definition of “misappropriation” was set out in Tan Tze Chye v Public Prosecutor [1997] 1 SLR(R) 876 (“Tan Tze Chye”) which was cited by the Court of Appeal in Chew Eng Han v Public Prosecutor [2017] 4 SLR 474 (“Chew Eng Han”) at [57]. Tan Tze Chye concerned a prosecution for criminal breach of trust under section 409 of the Penal Code 1871. And one of the questions raised was whether the appellant in that case had dishonestly misappropriated property. In that context, Yong Pung How CJ defined “misappropriate” to mean “to set apart or assign to the wrong person or wrong use”:

37.    To “misappropriate” means to set apart or assign to the wrong person or wrong use, and this must be done dishonestly. Setting aside property by one person for the use of another other than himself and the true owner can also constitute misappropriation; see Tan Sri Tan Hian Tsin v PP [1979] 1 MLJ 73 where criminal breach of trust was committed by the MD of the company which paid money into the bank account of another company of which he and his wife were the sole shareholders. Therefore, in this case, setting aside property for the appellant as well as his brother’s firm could both constitute misappropriation.

(emphasis mine)

95     Adopting this definition, paying CPF contribution to phantom workers is quite clearly misappropriation. It sets aside / assigns funds to persons who have no right to them. Paying such persons is also clearly wrong and detriments the Company by depriving it of funds which could otherwise be used for legitimate business purposes and operating costs (e.g. paying employees who actually worked). Indeed, if nothing else, such monies could have been applied to the Company’s debts, liabilities, and finally paid back to the shareholders assuming the Company were wound up.

96     In my view, it did not assist the claimants to claim (as they did in cross examination) that purpose of paying phantom workers CPF contribution was so that the Company could increase its foreign worker quota. First, the stated purpose does not take away from the fact that the Company was paying phantom workers who did not work for it. Second, the stated purpose amplified the wrongfulness of these payments. As the claimants accepted, paying phantom workers CPF contribution to get foreign worker quota is illegal. It involved making false declarations / representations (i.e. the number of locals employed) to the authorities. And in this respect, section 22(1) of the Employment of Foreign Manpower Act 1990 provided amongst other things:

22.—(1)    Any person who —

...

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

shall be guilty of an offence and shall be liable on conviction —

...

(i)    in the case of an offence under paragraph (d), (e) or (f) — to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both;…

(emphasis mine)

97     I turn to another assertion that the claimants advanced in trial but not their closing submissions. Namely that the paying of phantom workers was a practice started by the defendant and that they were simply continuing it:

(a)     As a starting point, I did not think it was fair to allow the claimants to rely on this assertion. The assertion is a serious one. However, it was not pleaded or set out in either claimant’s AEIC. To make a finding on this point would prejudice the defendant unfairly by depriving him of the opportunity to marshal the relevant rebuttal evidence. And indeed, I should note that the defendant denied this allegation when it was put to him at trial.[note: 73]

(b)     In any event, even if the assertion were true (a point that I am not finding), the fact remained that the Company was continuing to pay workers who did not work, and that this is for an illegal purpose. It may be that the defendant was in breach when he was a director. However, the fact remains that the claimants were in charge at the material time, and on their own evidence, they had perpetuated the wrong.

(c)     And in this regard, even if I accepted the argument that the claimants were “forced” to continue on with this illegal practice when they first took over management of the Company in November 2020 (see [12]-[16] above), it does not explain why the claimants continued the practice months after they took over (see [89] above).

98     Under these circumstances, Statement 5 was quite clearly justified.

Paying phantom workers gives rise to reasonable grounds to believe that the claimants breached their fiduciary duties

99     As noted, Statement 6 alleged that there were reasonable grounds to believe that: (a) the claimants had “breached [their] fiduciary duties to the Company; and (b) “there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code”.

100    I start with the assertion that there were reasonable grounds to believe that the claimants had breached their fiduciary duties to the Company.

101    As a starting point, it is uncontroversial that the claimants owed fiduciary duties to the Company by virtue of their directorship. As explained in Credit Suisse Trust Limited v Ivanishvili, Bidzina [2024] SGCA(I) 5 (“Credit Suisse”) at [42], fiduciary duties are distinguished by the fiduciary’s obligation of loyalty. The scope of fiduciary duties include:

(a)     the no-profit rule which prohibits a fiduciary from obtaining an advantage out of their fiduciary position without the informed consent of the principal;

(b)     the no-conflict rule which prohibits a fiduciary from placing themselves in a position of conflict of interest with their principal; and

(c)     the duty to act in the best interest of the principal.

102    As regards a director’s fiduciary duty to act in the best interest of his company, Credit Suisse explained at [45] that determining whether a director had acted honestly and in good faith in the interest of his company has subjective and objective elements. In this respect, the court will consider whether the director had acted bona fide in what he considered / believed (and not what the court considers) to be in the interest of the company. However, the director’s subjective belief (or claimed belief) is not determinative. Where the transaction / decision is not objectively in the company’s interest, the court will consider whether an intelligent and honest director could have reasonably believed that the transaction / decision was for the company’s benefit. If the answer is no, that could lead to the inference that the director had not acted honestly.

45    In the context of company law, it is well established that directors owe a fiduciary duty to act honestly and in good faith in the best interests of their company, such a duty being the “distinguishing obligation of a director”: BIT Baltic Investment & Trading Pte Ltd (in compulsory liquidation) v Wee See Boon [2023] 1 SLR 1648 at [31]–[33]. The test involves both subjective and objective elements. The court considers whether, in entering into a transaction or exercising a discretion (or omitting to do so), the director had acted bona fide in what the director considered or believed (and not what the court considers) to be in the interests of the company. A director might not be liable for an outcome that subsequently turns out to be financially detrimental if the decision to embark upon the course of action that led to that negative outcome was an honest commercial decision. In this sense, the focus is on the decision-making process rather than on the outcome of the action. However, the director’s subjective belief (or claimed belief) is not determinative. Where the transaction or decision is not objectively in the interests of the company, the court then considers whether an intelligent and honest director could, in the circumstances, have reasonably believed that the transaction or decision was for the benefit of the company. A negative answer could lead to the inference that the director had not acted honestly: Goh Chan Peng and others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592 at [35]–[36]. A dishonest director will be in breach regardless of whether he claims to have been acting in the interests of the company: Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 at [39].

(emphasis mine)

103    In the present case, the claimants were asserting a subjective belief that paying phantom workers was in the interest of the Company. I was not prepared to accept this assertion.

104    On an objective basis, spending Company’s money on phantom workers is contrary to the Company’s interests:

(a)     First, the practice diverted and deprived the Company of funds which it could use for other legitimate business purposes.

(b)     Second, saying that these payments were intended to increase the Company’s foreign worker quota did not help matters. Paying on that basis is a crime, and it exposed the Company to criminal liability (see [96] above). It is thus difficult to see how an intelligent and honest director could have reasonably believed that adopting such a practice is in the Company’s interest. This is especially so where the directors in question were aware of the practice’s criminality.

105    Under these circumstances, I needed something more than bare assertions before I was prepared to accept the claimants’ claimed belief that paying phantom workers was in the Company’s interests. In this regard, I accord some weight to the fact that the claimants had effectively admitted to a crime. However, it is not conclusive. And when considered as a whole, the claimants’ evidence was poor. Amongst other things,

(a)     Neither claimant deposed to the same in their respective AEIC.

(b)     It was not explained why the claimants needed to perpetuate this illegal scheme months after they took over management of the Company (e.g. the claimants had tried but failed to hire Singaporeans).

(c)     No objective evidence was led to show that foreign workers were in fact hired pursuant to the payment of phantom workers.

Indeed, it also did not help that the claimants’ closing submissions was completely silent on the point. This indicated that the claimants did not intend to rely on it.

106    For the reasons set out at [97] above, I also did not give much weight to the claimants’ assertion that it was the defendant who started this practice.

107    Finally, and for completeness, the case that Mr Thong breached his fiduciary duties is even stronger. It is his friends and family who are benefiting from the payment. As such, Mr Thong would undoubtedly be in breach of the no-conflict rule by authorizing the payments.

108    Under these circumstances, I find the assertion in Statement 6 that there are reasonable grounds to believe that the claimants breached their fiduciary duties is justified.

Paying phantom workers gives rise to reasonable grounds to believe that the claimants committed criminal breach of trust

109    I turn to the assertion in Statement 6 that there were reasonable grounds to believe that the claimants may be liable for criminal breach of trust under section 409 of the Penal Code 1871.

110    Section 409 of the Penal Code 1871 concerns criminal breach of trust by, inter alia, a person “in his capacity as a director of a corporation”. Section 409(1)(d) provides:

409.—(1)     Whoever, being in any manner entrusted with property, or with any dominion over property —

…

(d)     in his capacity as a director of a corporation;

…

commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.

(emphasis mine)

111    In this case, it was clear that the claimants’ decision to pay phantom workers was taken in their capacity as directors of the Company. It is their own evidence that they were managing the Company’s operations as directors.[note: 74] And quite clearly the payment of phantom workers was as part of their management of the Company’s operations. On their evidence, these payments were made to increase the Company’s foreign worker quota.

112    Accordingly, section 409 of the Penal Code 1871 would be engaged if an offence of criminal breach of trust had been committed. In this regard, section 405 of the Penal Code 1871 provides that criminal breach of trust would be committed if, amongst other things, a person who was entrusted with property, or with dominion over property, dishonestly misappropriates that property:

Criminal breach of trust

405.     Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or intentionally suffers any other person to do so, commits “criminal breach of trust”.

…

(emphasis mine)

113    For the reasons set out at [94]-[97] (above), I am of the view that using the Company’s funds to pay phantom workers constitutes dishonest misappropriation of Company’s funds.

114    Consequently, I am also of the view that Statement 6 is justified in that there were reasonable grounds to believe that “there may be liability for criminal breach of trust under section 409 of the Penal Code.”

Sub-conclusion

115    For the reasons above, I am of the view that Statements 5 and 6 though defamatory, are justified. In the circumstances, I will not comment on the defence of fair comments save to say that my views as set out at [80] above applies here as well.

Statement 2: The allegation that Mr Thong forcefully and wrongfully gained control and refused to return the Company’s invoices and books

Statement 2 is defamatory

116    Statement 2 concerned only Mr Thong. At [8] of the letter of demand it alleged:[note: 75]

8    … prior to Mr Yong’s removal as director of the Company… Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books (from October 2019 onwards) … through the Company’s accountant and refused access of the same to Mr Yong, even though Mr Thong is not entitled to retain the Company’s financial documents…

117    Mr Thong pleaded that the natural and ordinary meaning of Statement 2 was that:[note: 76]

(a)     Mr Thong had forcefully and wrongfully obtained control of the Company’s invoices and books;

(b)     he refused to return them to the defendant; and

(c)     he had failed in his duties as a director, was incompetent in his work and role as a director, was not responsible in his work as a director, was not credible or diligent in his work as a director, and had behaved wrongly and contrary to his roles and duties in the Company.

118    I accept that the first two pleaded meanings are borne out of Statement 2 and that they are defamatory. Indeed, the use of the words “forcefully and wrongfully” gives the impression that Mr Thong had acted unreasonably and without regard to the Company’s policies when obtaining the documents in question. Further, the allegation that he refused to return the documents indicated that Mr Thong wanted to control these documents even though he had no right to them. This certainly would lower Mr Thong in the estimation of right-thinking members of society.

119    However, I reject the pleaded meanings as set out at [117(c)] above. These other meanings presuppose that Mr Thong was a director at the material time. However, the letter of demand makes clear that this is not the case:[note: 77]

(a)     First, on the face of [8] of the letter of demand, Mr Thong had gained control of the documents “prior to [the defendant’s] removal as the director of the Company.

(b)     And when read together with [3] and [4] of the letter of demand, it is clear that Mr Thong was not a director at this point. It is stated clearly in [3] that the defendant was removed as director on 4 November 2020 and in [4] that Mr Thong was appointed director on 18 November 2020.

In the circumstances, it is difficult to see how Statement 2 could have impugned Mr Thong in his role as the Company’s director.

Statement 2 is not fully justified

120    I turn to the defence of justification.

121    I reject the defence of justification insofar as it pertained to the allegation that Mr Thong had “forcefully and wrongfully” gained control of the Company’s invoices and books. Even though Mr Thong was not a director at that point and did not have a right to the documents, the defendant’s own evidence was that he had voluntarily passed Mr Thong the relevant documents upon the latter’s request. Referring to various WhatsApp messages between himself and Mr Thong, the defendant explained in re-examination that:[note: 78]

(a)     Mr Thong had requested for the documents because his wife wanted to go through the books; and

(b)     In response to this request, the defendant stated “No worries. Will pass to u by end of this week”.

122    I set out my brief thoughts on the defence of fair comment before proceeding to the second allegation in Statement 2 that Mr Thong refused to return the documents. In my view, even if Statement 2 could be considered a comment (a point which I did not accept for the reasons at [80] above), the defence of fair comment cannot succeed given the defendant’s own evidence. It is trite that for the defence of fair comment to succeed, it must be based on true facts: Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) at [13.021]. However, the defendant himself makes clear that contrary to the allegation in Statement 2, Mr Thong did not obtain the relevant documents “forcefully and wrongfully”.

123    I move to the second allegation in Statement 2 that Mr Thong refused to return the documents subsequently and that this is wrongful. In my view, this is justified. Now, it may be that Mr Thong was entitled to retain the documents after he was appointed director. However, the allegation about Mr Thong refusing to return the documents concerned a period when Mr Thong was not the Company’s director. At that period, the defendant was the director. And when the defendant asked for them in his WhatsApp message of 21 October 2020, Mr Thong refused to return the documents. Mr Thong responded on the same day stating that he “will be keeping the documents”.[note: 79]

124    I touch briefly on section 8 of the Defamation Act 1957. It provides:

Justification

8.    In an action for libel or slander in respect of words containing 2 or more distinct charges against the claimant, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation having regard to the truth of the remaining charges.

125    I accept that it may be arguable that section 8 applied to Statement 2. However, I decline to make any such finding in my judgment. It is trite that the defendant bears the burden of proving the defence of justification. There is little doubt that the defendant was aware of this provision given that he had referred to it at [18] of his closing submissions. Notwithstanding, the defendant did not submit that the provision applied to Statement 2 even though it must have been apparent to him (or at least, his counsel) that there is a risk that I would find that Statement 2 was not fully justified. Afterall, his own evidence made clear that Mr Thong did not gain control of the Company’s invoices and books “wrongfully and forcefully”. In the circumstances, if he did not think it necessary to make any submissions on the point, I can only assume that he did not intend to rely on the provision. And in this regard, the defendant has not appealed against my decision.

Sub-conclusion

126    For the reasons above, Mr Thong succeeds in his defamatory claim for Statement 2 to the extent that it alleged that he had “forcefully and wrongfully” obtained the documents. I turn to damages.

Damages

127    The claimants’ claimed both general and aggravated damages in this suit as summarised below:[note: 80]

Statement

Mr Thong’s claim (S$)

Mr Chow’s claim (S$)

Statement 1

5,000

5,000

Statement 2

5,000

NA

Statement 3

5,000

5,000

Statement 4

10,000

10,000

Statement 5

30,000

30,000

Statement 6

30,000

30,000

Aggravated damages

30,000

30,000

Total

115,000

110,000



128    For the reasons above, both claimants have failed in their defamatory claim for Statements 1, 3, 4, 5 and 6. And Mr Thong has succeeded partially for Statement 2. As such, I only need to award damages for Statement 2.

General damages

129    The function of general damages for defamation is not controversial. They act as a consolation for the distress suffered from the publication of the statement, repair the harm to the victim’s reputation, and serve to vindicate his reputation. To that end, the Court may consider the following factors: (a) the nature and gravity of the defamation; (b) the conduct, position and standing of the plaintiff and the defendant; (c) the mode and extent of publication; (d) the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict; (e) the failure to apologise and retract the defamatory statement; and (f) the presence of malice: Lim Eng Hock Peter v Lin Jian Wei [2010] 4 SLR 357 (“Peter Lim”) at [3]-[7].

130    The application of these principles is seen in Koh Kok Cheng v Vernes Asia Ltd [1993] SGHC 23 (“Koh Kok Cheng”). That case concerned a letter of demand which stated that the claimant owed the defendants a substantial sum of money. The Court found the letter of demand defamatory because it suggested that the claimant was unable or unwilling to pay up his debts or is a person who does not fulfil his contractual obligations. The Court awarded S$2,000 to the claimant after considering:

(a)     the above suggestions are not “too serious” because they do not impute dishonesty or fraud;

(b)     there was limited publication;

(c)     the claimant’s employment as an accountant at the material time; and

(d)     the defendants’ failure to apologise and attempts to justify what they wrote.

131    In my view, Koh Kok Cheng is instructive for the following reasons:

(a)     First, like Koh Kok Cheng, the defamatory meaning which Mr Thong succeeded on– he had “forcefully and wrongfully” gained control of the Company’s books and invoices – was not serious. It does not impute dishonesty or fraud. At most, it suggested that Mr Thong had acted unreasonably and without regard to the Company’s policies when obtaining the documents in question (see [118] above).

(b)     Second, like Koh Kok Cheng, Mr Thong had only established limited publication of the defamatory statement (see [45]-[55] above).

(c)     Third, like the claimant in Koh Kok Cheng, Mr Thong’s professional reputation would have suffered because of the defamatory statement. Just like how accountants are distinguished by their reliability and suggestions of being unwilling / unable to pay on one’s debt would injure their professional reputation, businessmen have professional reputations as well. And here, the suggestion that Mr Thong acted unreasonably and without regard to Company policy would impact that.

(d)     Fourth, like Koh Kok Cheng, the defendant in this case refused to apologise and attempted to justify the defamatory statement.

132    That said, unlike Koh Kok Cheng where the defamatory statement was wholly unjustified, the suggestions raised by the defamatory statement in this case were partially justified. After all, even though Mr Thong had obtained the documents in question legitimately, he refused to return them when the defendant (who was the then director) asked for them (see [123] above).

133    Under these circumstances, I was of the view that the general damages that Mr Thong should be awarded should be less than Koh Kok Cheng. In my view, S$1,500 in general damages is fair.

Aggravated damages

134    It is well established that aggravated damages may be awarded where the motive or the conduct of the defendant has increased the injury to the plaintiff. In assessing the quantum of aggravated damages to be awarded, the factors that the Court will consider include: (a) the failure to apologise; (b) a plea of justification which is bound to fail; and (c) malice. Importantly, the principle of proportionality applies to the award of aggravated damages. Caution has to be exercised to avoid double counting for distress caused to the plaintiff: ATU v ATY [2015] 4 SLR 1159 at [51]-[54].

135    In the present case, I have already accounted for the defendant’s failure to apologise and the fact that the defendant had unsuccessfully raised a plea of justification. As such, I need only consider the issue of malice.

136    In this respect, it was Mr Thong’s submission that the defendant’s defamation was malicious and motivated by malice, vengeance and egomania.[note: 81] This, Mr Thong submitted, is evidenced by how the defendant changed the name of the Company’s Facebook Page to Mr Thong’s name. According to Mr Thong, this “was part of the Defendant’s calculated and malicious plan to maximise the reach of his defamatory posts.”[note: 82]

137    While I do not think that it is right to say that the defendant’s posts were motivated by egomania, I am prepared to accept that the defendant was upset with Mr Thong and he had acted on these feelings. In this respect, it is explained in Clerk and Lindsell at [22-214] that a claimant may be able to show malice from extrinsic facts that the defendant harbored feelings of spite and ill-will, and it may be inferred that the publication was prompted by such feelings, and not by a legitimate motive.

138    In the present case, the defendant claimed to have posted the letter of demand on Facebook to “make it clear, once and for all, that [he is] not a director of [the Company]”.[note: 83] I was unable to accept this. If this was truly his intention, he could have posted a message on the Facebook Page to state that he is no longer a director. And if he wanted to ensure that there is no doubt, he could have even posted a copy of an ACRA search of the Company.

139    However, that is not what the defendant did. After changing the name of the Facebook Page from Killiney Mount Elizabeth Novena Hospital to Mr Thong’s name, the defendant posted mocking messages and pictures on the Facebook Page (see [21] above) as if to gloat that the Killiney store was going to shut down. The defendant also posted the words “Someone is going to get sued until pant drop” together with the letter of demand (see [23] above). Quite clearly, the defendant had posted the letter of demand on Facebook because he was unhappy with the claimants. The defendant had quite likely wanted to embarrass them.

140    As such, I award aggravated damages of S$500 to Mr Thong on top of the S$1,500 which I had awarded him for general damages.

Costs

Liability for costs

141    I turn to the costs to be awarded for the two actions and start with liability for costs.

142    Starting with DC715, as the defendant succeeded wholly in his defence against Mr Chow, he is entitled to costs.

143    As for DC714, the defendant should also be awarded costs as he is the substantial winner. In coming to this decision, I am guided by Afro-Asia Shipping Co (Pte) Ltd v Da Zhong Investment Pte Ltd and others [2004] 3 SLR(R) 274 (“Afro-Asia”) at [21], the High Court referred to the following passage of the English Court of Appeal in Swale Storage and Distribution Services Limited v Sittingbourne Paper Company Limited [The Times, 30 July 1998]:

One gathers from that that in the appropriate case the court should look at the substance of the matter and the substance of the result of the trial. It can also be drawn from Oksuzoglu that where there is a limited recovery by the plaintiff, questions of a particular order for costs do not arise only and exclusively where the plaintiffs’ success has been purely nominal. Brooke LJ refers to recovery of between 1% and 3% of the original claim: I am not seeking to lay down the strict parameters, but that is by way of illustration.

I draw from the two cases that I have mentioned, bearing in mind that one has the benefit in Oksuzoglu of the review of these previous authorities, the proposition relevant to this case that where there are separate claims in a trial and only on some of which the plaintiff succeeds; or, and this may often be the same thing, there is a recovery of very much less than the total; the court should at least consider whether it should ask itself: who was the real winner? What was the event? I emphasise that that does not mean, and there is no justification in the authorities for supposing, that in the ordinary run of cases the court should, or even may, try to determine costs by minute examination of what are not, in truth, clear and distinct issues of liability, but rather only facets of, or ways in which it is sought to prove, a single issue. That warning is, in particular, to be drawn from the criticism that the Court of Appeal made in Elgindata of the approach that had been adopted by the trial judge in that case.

(emphasis mine)

144    I had little doubt that the defendant had substantially succeeded in this DC714. Even though Mr Thong had obtained judgment of S$2,000, that must be viewed in the overall result of the trial. In this case, Mr Thong took issue with six Statements in the letter of demand (see [26] above). However, he succeeded only partially on Statement 2 which was the least serious of the Statements (see [116]-[126] above). The net result is that even though he made a claim of S$115,000 (see [127] above), he obtained only S$2,000. This is less than 2% of the claimed sum.

Quantum

145    Turning to quantum, the defendant’s solicitors highlighted a Calderbank letter which they served on the claimants on 19 April 2024 (i.e. 3 days before trial started on 22 April 2024). In that Calderbank letter, the defendant offered to pay the claimants S$1,500 each. On that basis, the defendant sought a total of S$56,000 for both suits on an indemnity basis.

146    The claimants’ solicitors disagreed. They argued that the defendant’s Calderbank letter was not genuine because there was no real prospects of acceptance. According to the claimants’ solicitors,

(a)     In respect of Statements 1, 3 and 4, the claimants had genuinely taken the view that they had properly accounted for the affairs of the Company; and

(b)     In respect of Statements 5 and 6, while the claimants accepted that they were making payments to phantom workers, both he and the claimants held the firm belief that they had a strong defence because but for these payments, the Company would not have been able to hire foreign workers.

147    I was not convinced by the claimants’ submissions. In my view, the reasonableness or otherwise of the Calderbank letter must take into account the merits of the claimants’ case. And here, it must have been clear to the claimants that the merits of their case were not strong. Indeed, this is not a case where the claimants lost because of any true controversy. It would be recalled that the defendant’s defence of justification for Statements 1, 3, 4, 5, and 6 rested on the claimants’ own admissions. Now, I appreciate that the claimants may be laypeople who might not be able to properly assess the merits of their respective cases. However, this is no excuse. They had the assistance of legal counsel who presumably would have advised them on the merits of their case.

148    In any event, it was difficult to accept that the claimants (or their solicitors) truly believed that the claimants’ actions were kosher. If this truly was the case, it is unclear why the claimants never made those submissions in their closing submissions.

149    Under these circumstances, I am of the view that the Calderbank letter was a reasonable one and it is a factor that I should take into account when awarding costs.

150    Be that as it may, I did not think that S$56,000 is reasonable. While two suits were filed, there was substantial overlap in issues and work. Five of the six statements concerned both claimants. There was also only one trial which spanned three days. The documents were not voluminous and only one set of submissions were prepared for both suits. I also did not think that the defendant was reasonable in some of the positions he took. For instance, even though the Statements were clearly defamatory, he contested the same.

151    Taking matters in the round, I fix costs as follows:

(a)     For DC714, costs is fixed at S$17,000 plus GST plus reasonable disbursements to be paid by Mr Thong to the defendant.

(b)     For DC715, costs is fixed at S$18,000 plus GST plus reasonable disbursements to be paid by Mr Chow to the defendant.

152    The costs of DC714 has been moderated downwards to account for Mr Thong’s partial success for Statement 2.

Conclusion

153    For the reasons above, while I find all six Statements defamatory, the defence of justification is established for five of them:

(a)     Statements 1, 3, and 4 alleged, inter alia, that the claimants breached their duty to account for the Company’s affairs and to furnish financial statements. It is also alleged that this lack of transparency amounted to minority oppression. These allegations were justified on the claimants’ own evidence. The claimants admitted that as directors, they owed a duty to call for AGMs and to lay the Company’s financial statements before the Company and its shareholders. Notwithstanding, they failed to: (i) call for AGMs for FY2020 and FY2021; (ii) lay FS2020 and FS2021 before the Company and its shareholders; and (iii) account for the Company’s affairs even when there was a sizable depletion of the Company’s cashflow.

(b)     Statements 5, and 6 alleged that there has been wrongful utilisation and/or misappropriation of Company funds. They also alleged reasonable grounds for believing that there has been breach of fiduciary duty and criminal breach of trust.

These statements were justified. On the claimants’ own evidence, they had caused / permitted the Company to pay phantom workers related to Mr Thong. Such payments would have depleted the Company’s funds wrongfully. The stated purpose of these payments—to inflate the Company’s foreign worker quota—also did not assist the claimants. It does not detract from the fact that the Company’s funds were still being depleted. Furthermore, the stated purpose is illegal and exposed the Company to criminal liability. I was also not convinced by the excuse that the claimants were simply carrying on the defendant’s practices. Even if true, the claimants had taken over management and they were in charge. And in this regard, there is no evidence that the claimants tried to stop this illegal practice. To the contrary, the evidence showed that they continued to perpetuate this wrong even months after they took over and no good reason was given to explain this.

154    For the remaining Statement 2, I did not think that the defences of justification or fair comment applied fully. Even though Mr Thong refused to return the Company’s books and invoices, it is incorrect to say that Mr Thong obtained them “forcefully and wrongfully”. It was the defendant’s own evidence that he passed these documents to Mr Thong voluntarily. Accordingly, there is no factual basis for either defence to apply to this part of Statement 2.

155    As for the damages to be awarded, Statement 2 was the least defamatory of the Statements. It alleged neither fraud nor dishonesty, publication is limited, and indeed, part of its sting was justified. That said, the defendant failed to apologise and sought to justify Statement 2. I was also of the view that there was some level of malice. Accordingly, I award Mr Thong S$2,000 in damages (inclusive of aggravated damages).

156    The net effect of the above is that Mr Chow has failed completely in his action and Mr Thong has failed substantially in his. As such, I ordered:

(a)     For DC714, Mr Thong is given judgment for the sum of S$2,000. Costs is fixed at S$17,000 plus GST plus reasonable disbursements to be paid by Mr Thong to the defendant.

(b)     For DC715, Mr Chow’s claim is dismissed. Costs is fixed at S$18,000 plus GST plus reasonable disbursements to be paid by Mr Chow to the defendant.

[note: 1]Agreed Bundle of Documents (“AB”) 85.

[note: 2]Mr Thong Chee Leong’s AEIC in DC714 (“Mr Thong’s AEIC”) at [5]-[6]; Mr Terence Yong’s AEIC in both suits (“Mr Yong’s AEIC”) at [9]-[12].

[note: 3]Mr Thong’s AEIC at [7]; Mr Yong’s AEIC at [14]-[16].

[note: 4]AB129.

[note: 5]AB84.

[note: 6]Mr Thong’s AEIC at [9]-[13]; Mr Chow’s AEIC at [8].

[note: 7]Mr Yong’s AEIC at [30].

[note: 8]Mr Yong’s AEIC at [30].

[note: 9]Mr Yong’s AEIC at [17]; Mr Yong’s AEIC at [41].

[note: 10]Mr Yong’s AEIC at [17]-[18].

[note: 11]AB204.

[note: 12]AB64.

[note: 13]AB64.

[note: 14]DC714 Statement of Claim at [9]; DC715 Statement of Claim at [9]; AB341.

[note: 15]DC714 Statement of Claim at [12]; AB341.

[note: 16]DC714 Statement of Claim at [15]; DC715 Statement of Claim at [12]; AB341.

[note: 17]DC714 Statement of Claim at [18]; DC715 Statement of Claim at [15]; AB341.

[note: 18]DC714 Statement of Claim at [21]; DC715 Statement of Claim at [18]; AB342.

[note: 19]DC714 Statement of Claim at [27]; DC715 Statement of Claim at [24]; AB343.

[note: 20]Defendant's Closing Submissions at [88].

[note: 21]Defendant's Closing Submissions at [83]-[88].

[note: 22]Defendant's Closing Submissions at [227].

[note: 23]Mr Yong’s AEIC at p.19 at header “v. Posting of the Letter of Demand on Facebook was necessary and justified”.

[note: 24]Mr Yong’s AEIC at [81].

[note: 25]Defendant’s Opening Statement at [6(d)].

[note: 26]NE (22 April 2024) p. 103 ln 25-28.

[note: 27]NE (23 April 2024) p.57 ln 6-19.

[note: 28]NE (23 April 2024) p.34 ln 21-23.

[note: 29]Claimant’s Closing Submissions at [51].

[note: 30]Claimant’s Closing Submissions at [52].

[note: 31]Claimant’s Closing Submissions at [54].

[note: 32]AB72.

[note: 33]NE (23 April 2024) p.91 ln 26-27.

[note: 34]Mr Thong’s AEIC at [72]; Mr Chow’s AEIC at [41].

[note: 35]AB73.

[note: 36]Claimant’s Closing Submissions at [16].

[note: 37]Claimant’s Closing Submissions at [18].

[note: 38]Claimant’s Closing Submissions at [22].

[note: 39]Claimant’s Closing Submissions at [23].

[note: 40]DC714 Statement of Claim at [9]; DC715 Statement of Claim at [9]; AB341.

[note: 41]DC714 Statement of Claim at [15]; DC715 Statement of Claim at [12]; AB341.

[note: 42]DC714 Statement of Claim at [18]; DC715 Statement of Claim at [15]; AB341.

[note: 43]AB342.

[note: 44]AB341.

[note: 45]AB341.

[note: 46]Defendant’s Closing Submission at [38]-[39], [51], and [63].

[note: 47]Claimants’ Closing Submissions at [30].

[note: 48]Claimants’ Closing Submissions at [31].

[note: 49]NE (23 Apr 2024) p.20 ln 24-29; p.39 ln 1-5.

[note: 50]NE (22 Apr 2024) p.31 ln 6-10; p.42 ln 2-7.

[note: 51]NE (22 Apr 2024) p.82 ln 22 to p.83 ln 23.

[note: 52]NE (22 Apr 2024) p.84 ln 26-31.

[note: 53]NE (22 Apr 2024) p.84 ln 23 to p.85 ln 3.

[note: 54]NE (23 Apr 2024) p.50 ln 27 to p.51 ln 4.

[note: 55]NE (23 Apr 2024) p.25 ln 19 to p.26 ln 15.

[note: 56]AB96 and 106.

[note: 57]AB89.

[note: 58]NE (22 Apr 2024) p.41 ln 1 to p.42 ln 28.

[note: 59]NE (22 Apr 2024) p.42 ln 15.

[note: 60]NE (22 Apr 2024) p.42 ln 26-28.

[note: 61]NE (22 Apr 2024) p.23 ln 22 to p.24 ln 30; AB165-166.

[note: 62]NE (23 Apr 2024) p.17 ln 7-30.

[note: 63]DC714 Statement of Claim at [21]; DC715 Statement of Claim at [18]; AB342.

[note: 64]DC714 Statement of Claim at [27]; DC715 Statement of Claim at [24]; AB343.

[note: 65]AB342-343.

[note: 66]AB343.

[note: 67]AB342-343.

[note: 68]See the Opening Statement filed in DC714 on behalf of both Claimants on 16 April 2024 at [36].

[note: 69]NE (22 April 2024) p.43 ln 6 to p.44 ln 10.

[note: 70]NE (22 Apr 2024) p.45 ln 19-30; AB301.

[note: 71]NE (23 April 2024) p.53 ln 1-4.

[note: 72]NE (23 Apr 2024) p.9 ln 16 p.10 ln 22.

[note: 73]NE (24 Apr 2024) p.16 ln 9-32.

[note: 74]Mr Thong’s AEIC at [15]; Mr Chow’s AEIC at [5] and [8].

[note: 75]DC714 Statement of Claim at [12]; AB341.

[note: 76]DC714 Statement of Claim at [13].

[note: 77]AB340-341.

[note: 78]NE (24 Apr 2024) p. 67 ln 1 to p.68 ln 2; BA179-180.

[note: 79]AB153; NE (22 Apr 2024) p.29 ln 7-29.

[note: 80]Claimants’ Closing Submissions at [37]-[42] and [62].

[note: 81]Claimants’ Closing Submissions at [9].

[note: 82]Claimants’ Closing Submissions at [44].

[note: 83]Mr Yong’s AEIC at [81].

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Royal’s Engineering & Trading (S) Pte Ltd v Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd)
[2024] SGDC 275

Case Number:Suit No 1178 of 2024, Summons No 1229 of 2024
Decision Date:16 October 2024
Tribunal/Court:District Court
Coram: Chee Min Ping
Counsel Name(s): Ashok Kumar Rai (Cairnhill Law LLC) for the claimant; Dilip Kumar (Gavan Law Practice LLC) instructed by Mary Magdalene Pereira (Whitefield Law Corporation) for the defendant.
Parties: Royal's Engineering & Trading (S) Pte Ltd — Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd)

Civil Procedure – Summary judgment

Contract – Discharge – Frustration

Contract – Discharge – Subsequent agreement

16 October 2024

Deputy Registrar Chee Min Ping:

Introduction

1       The application by Royal’s Engineering & Trading (S) Pte Ltd (“Claimant”) for final judgment to be entered against Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd) (“Defendant”) was dismissed. In gist, the Claimant asserted that the Defendant had failed to pay rental amounting to the sum of S$131,335.00 payable under a tenancy agreement for the Claimant’s premises to be used by the Defendant to operate a canteen (“Tenancy Agreement”). In its response, the Defendant availed itself to a multitude of defences, including frustration of contract, force majeure and repudiatory breach by the Claimant associated with the slew of measures taken the Covid-19 pandemic which were put in place shortly after commencement of the tenancy period under the Tenancy Agreement in Singapore. The Defendant also asserted that the Tenancy Agreement had been invalidated due to the Defendant’s non-payment of stamp fees.

Issues and overview

2       This application raised two main issues. The first issue which arose is whether the Defendant had shown that it had a good arguable defence that the parties were not required to perform their primary obligations under the Tenancy Agreement despite the Defendant’s non-payment of the stamp duty for the lease throughout the Tenancy Period (“Condition Precedent Issue”). In the event that the Condition Precedent Issue was answered in the negative, the second issue was whether the Defendant had a good arguable defence that the Claimant had agreed to the termination of the Tenancy Agreement, and thus the Defendant was not liable to pay rental under the Tenancy Agreement as claimed (“Consent to Terminate Issue”).

3       In these grounds of decision, I will set out the factual background before explaining my reasons for deciding the Condition Precedent Issue in the affirmative and dismissing the Claimant’s application. For completeness, I will also explain the reasons for deciding the Consent to Terminate Issue in the affirmative, and that leave to defend should, in any event, be granted to the Defendant. These grounds of decision will also state my reasons for awarding costs to the Defendant at an attenuated quantum of $2,000, having regard to the manner in which the Defendant’s response to the Claimant’s application was conducted.

The Claim

4       The Statement of Claim sets out the following key facts. The Claimant is the owner of a canteen at 109 Tuas View Walk 1, Singapore (“Premises”). The Defendant is a food catering company. On 6 March 2020, the Claimant and the Defendant entered into the Tenancy Agreement for the lease of the Premises from the Claimant to the Defendant.

5       Under cl 1 of the Tenancy Agreement, the Defendant was to have possession of the Premises from 15 March 2020 until 14 March 2022 (“Tenancy Period”). The Defendant was required to pay rental at $8,500 per month, comprising $7,000 for the Premises, and the furniture and fittings at $1,500 per month. In addition, 7% Goods and Services Tax was to be paid by the Defendant on the monthly rental, which meant that the monthly payment due was $8,990. For present purposes, nothing turns on the component sums making up the monthly rental payments. Clause 4(b) of the Tenancy Agreement also provided that the Claimant was entitled to interest at 10% per annum calculated on a pro-rated daily basis on the amount of rental unpaid 7 days after rental falls due, calculated from the due date to the actual payment date.

The Claimant’s Demand for Payment

6       The Claimant asserts in its Statement of Claim, that between March 2020 and July 2021, the Defendant failed to pay the monthly rental of $8,990. The Claimant stated that the total indebtedness was $131,335.00 (being 16.5 months’ of rental less the security deposit of $17,000). The Claimant had treated the Tenancy as subsisting from March 2020 and July 2021.

7       The Claimant exhibited correspondence relating to the Tenancy Agreement between the Claimant and the Defendant’s “related company”, Four Seasons Food Central Pte Ltd (“Four Seasons”). In a letter from Four Seasons’ solicitors to the Claimant dated 3 December 2020 (“Four Seasons Letter”), “Four Seasons and/or the Defendant”[note: 1] stated:

With regards to the second tenancy signed on or about the 4th of March 2020, a total of $17,000 was paid as security deposit to you for the lease of this premises but our clients never commenced their business at the said premises due to the lock down and the consequential restrictions. Our clients were further instructed to move out their equipment shortly after the payment of the security deposit. There has been no refund of the said security deposit.

[emphasis added]

8       The Four Seasons Letter referenced two tenancy agreements, the second of which related to:[note: 2]

(2) Canteen Operator at 109 Tuas View Walk 1 Singapore under a subsidiary [Defendant].

The Claimant disputed the contents of the Four Seasons Letter, in particular the assertion that the Defendant had never commenced their business at the Premises, as being the “Defendant’s ploy to get its Security Deposit back”.[note: 3]

9       On 16 November 2022, the Claimant sent a letter of demand for unpaid rental from March 2020 to July 2021 to the Defendant. The Claimant’s solicitors subsequently sent a letter dated 5 March 2023, demanding that the Defendant makes payment for unpaid rental and utilities from March 2020 to July 2021 and late interest of 10% per annum.

The Stamp Duty reminder

10     The Claimant sent an email on 28 July 2021 to Four Seasons, reminding the Defendant of its obligation to pay stamp duty on the Tenancy Agreement to the Inland Revenue Authority of Singapore (“IRAS”) pursuant to cl 4(g) of the Tenancy Agreement.[note: 4] According to the Claimant, the Defendant ignored the Defendant’s request for the Defendant to pay the outstanding stamp duty and this resulted in the Claimant filing a report 15 November 2021 with the IRAS, showing the Defendant’s refusal to honour the Tenancy Agreement.[note: 5] The stamp duty was subsequently paid, as evidenced by the Certificate of Stamp Duty issued on 21 August 2023, indicating that a total amount of $1,782 had been paid comprising stamp duty of $816 and penalty of $966.

The Defence and Counterclaim

11     The Defendant pleaded in the Defence and Counterclaim, and stated in its affidavit in reply, that the Defendant never had the opportunity to use the Premises as a canteen as mandated by the Tenancy Agreement due to the Claimant’s conduct. The Tenancy Agreement was entered into on 6 March 2020, days before the Covid-19 Circuit Breaker was imposed on 7 April 2020, which was “effectively lifted only in 2021”.[note: 6] It was also asserted that the “canteen had to be closed due to mandatory orders issues [sic] by the authorities in Singapore”.[note: 7]

12     As I understand it, the Defendant’s position as stated in its affidavit is that due to the Covid-19 pandemic, there were safe management measures in place which affected the Claimant. These measures affected the Premises in two ways. Firstly, the authorities required the Premises to be used as foreign workers’ accommodation quarters, and this resulted in the Claimant informing the Defendant to stop business, so that the Claimant could use the Premises as workers’ quarters.[note: 8] Secondly, as a consequence of the authorities’ measures, it was not possible to operate the Premises as a canteen and also not possible for the Defendant to obtain licensing approval to operate a canteen.[note: 9]

13     The Defendant asserted in its affidavit in reply[note: 10] that:

… If the Claimant alleged that it was possible for the Defendant to operate the canteen, why did the Claimant prevent the Defendant from coming to the [Premises] except to collect the equipment belonging to the Defendant and why did the Claimant convert the canteen to a temporary holding area.

…

There was indeed an oral agreement between myself and Mr. Naga of the Claimant. We agreed to terminate the agreement and I was duly informed to remove my utensils which I did with the consent and knowledge of the Claimant. If indeed there was a breach of the Tenancy Agreement, why didn’t the Claimant stop me from taking back my utensils and equipment.

14     It appears that the Defendant was elaborating on matters stated in the Defence and Counterclaim at [7] – [8] which reads:

7 … the Claimants had locked up the premises claiming that the authorities had mandated it as such and used the entire premises including the premises which was leased to our clients. Subsequently, our clients had discovered that the entire premises was used to accommodate foreign workers pursuant to a regulatory order issued by the Ministry of Manpower in compliance with the Covid-19 measures. Given the lockdown and the use of the premises for the Claimant’s exclusive use, the tenancy agreement was deemed repudiated by the Claimants.

8… The Defendants were told to remove all their equipment from their premises which the Defendants complied. The Claimants orally informed the Defendants that the Tenancy Agreement was duly terminated thereafter. The Defendants are wondering why the Claimants are pursuing this present cause of action when they had informed the tenants that the Tenancy Agreement was terminated with no consequential costs from the Defendants.

15     The Defendant had exhibited photographs its affidavit in response, explaining that the Premises were “taken back” by the Claimant and “converted” for the Claimant’s usage as a workers’ dormitory.[note: 11]

16     In the Defence and Counterclaim[note: 12] and Further and Better Particulars on the Defence and Counterclaim (“Defendant’s FNBP”), [note: 13] the Defendant averred that the Defendant’s Mr Lingam had requested for early termination due to constraints imposed by the Ministry of Manpower as a result of challenges emanating from the Covid-19 pandemic. On 22 May 2020, Mr Naga had allegedly acknowledged the request for early termination as the Defendant could not resume business at the demised premises as the Claimant had converted the Premises into a temporary accommodation area for its own foreign workers. The Defendant was also apparently informed by the Claimant that the Tenancy Agreement was “pre-terminated” with no consequential costs for the Defendant by oral agreement (“Alleged Oral Agreement”).

Applicable principles

17     In Horizon Capital Fund v Ollech David [2023] SGHC 164 (“Horizon Capital Fund”) at [58], Goh Yihan JC observed that the principles applicable in a summary judgment application under O 9 r 17 of the ROC 2021 are the same as those applicable to applications under O 14 of the ROC 2014. In Horizon Capital at [60], the following principles were elucidated:

(a)     A claimant must first show that he has a prima facie case for his claims. If he fails to do so, then the application ought to be dismissed.

(b)     If the claimant shows that he has a prima facie case, the tactical burden shifts to the defendant who, in order to obtain permission to defend, must establish that there is a fair or reasonable probability that he has a real or bona fide defence.

(c)     The tactical burden which shifts to the defendant is the burden to provide further evidence to rebut an inference that would otherwise be drawn from the evidence provided by the claimant.

(d)     The court will not grant permission to defend if the defendant only provides a mere assertion, contained in an affidavit, of a given situation which forms the basis of his defence. If the defendant cannot satisfy this tactical burden, the claimant would be entitled to summary judgment.

Analysis

The Claimant has shown a prima facie case

18     The Claimant has presented a prima facie case that there was a Tenancy Agreement signed by the parties, and that rental had not been paid during the Tenancy Period, which included March 2020 to July 2021. Accordingly, it had a prima facie entitlement to claim for unpaid rental plus interest, accrued as a result of the Defendant’s failure to pay rental.

The Defendant has a good arguable defence

19     On the Condition Precedent Issue, the Defendant had demonstrated a good arguable defence that the primary obligations under the Tenancy Agreement were not required to be performed by the parties until the stamp duty had been paid. It was not disputed that the stamp fee was paid only after the Tenancy Period had expired. On the Consent to Terminate Issue, the Defendant had a good arguable case that the Claimant had by conduct and agreement, determined the Tenancy Agreement, and the Defendant was thereby not required to perform its obligation under the Tenancy Agreement to pay rental.

Clause 4(g) makes stamp duty payment by the Defendant a condition precedent to the performance of the Tenancy Agreement by the parties

20     I turn now to clause 4(g), which contains the words “Stamp Fee duty borne by Tenant”. Clause 4(g) reads as follows:

4.     Provided always and it is expressly agreed as follows:

…

(g)     Stamp Fee duty borne by Tenant. It is a must to have the stamp duty paid prior activating the legality of this contract.

[emphasis in bold in original]

21     Clause 4(g) is, in my view, an express provision that the stamp duty for the lease should be paid by the Defendant. The second sentence indicates that the parties, in providing for cl 4(g), intended that the stamp fee must first be paid before the other obligations under the Tenancy Agreement should be performed. It was not disputed that the Stamp Duty was only paid in 2023, after the Tenancy Period, which means that clause 4(g) was not fulfilled by the Tenant.

22     In Bonsel Development Pte Ltd v Tan Kong Kar and another [2000] 2 SLR(R) 967 at [8], the Court of Appeal clarified that in construing a clause stipulating that the contact is “subject to” the performance of an obligation by one party, it is essential to distinguish between a clause that constitutes a condition precedent to the formation of a contract, and a clause that constitutes a condition precedent to the precedent of a contract. In Bonsel Development, cl 10 of a sale and purchase agreement provided that the sale of property was “subject to” the sellers removing caveats lodged against the property, and “in the event that we are unable to do so by the competition date, the completion shall take place two (2) weeks from the date the caveats are removed”. The Court of Appeal held that the removal of caveats was a condition precedent to the performance of the contract, but not the formation of a contract. The delayed removal of caveats therefore delayed the performance of the contract but did not prevent a contract from being formed in the first place.

23     In contrast, in Lim Hwee Meng v Citadel Investment Pte Ltd [1998] 3 SLR(R) 101, the contract for sale of property contained cl 5 which provided:

The purchase herein by a company is subject to the company obtaining the approval of the Land Dealings Unit or other government approval for the purchase on or before completion.

24     The Court of Appeal held in Lim Hwee Meng at [40], that cl 5 was a condition precedent, not to the existence of a contract, but to the performance of the principal obligations under the contract. Specifically, if the Land Dealings Unit gave the requisite approval, then the principal obligations under the contract of sale and purchase would accrue. If the Land Dealings Unit did not give the requisite approval, the parties would be released from their obligations under the contract. Specifically, the Court of Appeal stated:

Pending the application to and the decision of the Land Dealings Unit, there remained in existence a contract which bound both parties and which neither party could disavow, notwithstanding that the principal obligations under the contract, namely, the sale and purchase of the property, would not accrue until the requisite approval was obtained…

25     Turning once more to Bonsel, it was clarified at [12] that while a binding contract had come into being, its performance is postponed until the occurrence of the specified event. And if the event requires action by one party, then that party must take all reasonable steps to achieving that end. Such a party cannot do nothing and claim that the condition has not materialised, thus exonerating himself from fulfilling the contractual obligation.

26     In view of the wording of cl 4(g), there is a good arguable case that the contract was intended by both the Claimant and the Defendant to not have “legal effect”, ie, that parties are not required to perform their primary obligations under the Tenancy Agreement due the Defendant’s non-payment of the stamp duty. In the present case, it was at least plausible to infer that the Claimant’s alleged conduct in operating a workers’ dormitory at the Premises and not demanding for rental until November 2022 was indicative that it had not regarded the Tenancy Agreement has imposing contractual obligations on the Defendant. I took the Claimant’s point, in the course of arguments, that the defendant had not specifically pleaded in its Defence and Counterclaim that the primary obligations under the Tenancy Agreement need not be fulfilled until the condition of stamp duty payment was met. To my mind, the lack of a specific pleading on this point is the matter that goes to costs, given the possibility of an amendment of pleadings.

Prima facie evidence of the Alleged Oral Agreement to terminate the Tenancy Agreement

27     In the event that my determination on the Condition Precedent Issue was in error, the Defendant should nevertheless be granted leave to defend as the Consent to Terminate Issue was answered in the affirmative. The Defendant has adduced prima facie evidence of an Alleged Oral Agreement in May 2020 to terminate the Tenancy Agreement, thereby discharging the Tenancy Agreement without liability on the Defendant’s part.

28     The Claimant disputed the existence of the Alleged Oral Agreement and argued that it was improbable that parties in an arm’s length commercial transaction would terminate their contractual relationship without leaving any documentary record. The Claimant’s argument relates to the credibility of the Defendant’s assertion that the Alleged Oral Agreement existed, which I accepted had significant force. However, it should be recalled that in an application for summary judgment, the analysis centres on whether the Defendant can adduce sufficient evidence to discharge its tactical burden to show that it has a good arguable defence. It is not necessary for the Defendant to prove its case on a balance of probabilities on affidavit evidence at this juncture.

29     The Defendant’s assertion that the Alleged Oral Agreement existed was not corroborated by either contemporaneous or subsequent documentary records. Details of the Alleged Oral Agreement appeared to be lacking in the Defence and Counterclaim. However, the Defendant had adduced some evidence of the Claimant’s subsequent conduct, which was explicable if one accepted that the Alleged Oral Agreement was in fact arrived at by the parties. Specifically, in my view, the Defendant pointed to two specific aspects of the Claimant’s subsequent conduct which was consistent with the Defendant’s assertion that the Claimant regarded the Tenancy Agreement as having been terminated:

(a)     First, the Defendant asserted that the Claimant had “taken back” the Premises, and also converted it to a foreign workers’ dormitory for its own use. To this end, the Defendant exhibited pictures in the Defendant’s affidavit to corroborate such an assertion.

(b)     Secondly, the Claimant had acted with conspicuous delay in demanding payments, with its written request to Four Seasons to pay the stamp duty in July 2021, and its delayed demand for unpaid rental as late as 16 November 2022.

30     The Claimant has raised disputes of fact, which do not detract from the fact that the Defendant has discharged its tactical burden to rebut the Claimant’s evidence and inferences that may be drawn therefrom. In my view, it would be more appropriate for these disputes to be ventilated at a trial:

(a)     The Claimant disputed that it had used the Premises to accommodate foreign workers pursuant to a regulatory order issued by the Ministry of Manpower in compliance with Covid-19 measures. The Claimant asserted that foreign workers were accommodated on the second level above the Premises which was on the ground floor. The Claimant had also not applied to convert the Premises into a sick bay or a workers’ dormitory.[note: 14]

(b)     Relatedly, the Claimant disputed the veracity of the Defendant’s photographic evidence in support of its assertion that the Premises were used as a workers’ dormitory. In the Claimant’s reply affidavit dated 2 August 2024 filed by Manickam Nagarajan, photographs were also exhibited depicting kitchen equipment, which the Claimant averred were located at the Premises. The Claimant disputed that the photographs exhibited in Sembulingam’s affidavit depicted the Premises and asserted that they were taken at another location.[note: 15]

31     I therefore arrived at the view, that the Claimant’s alleged conduct in converting the Premises to a workers’ dormitory for the Claimant’s use during the Tenancy Period, thereby effectively preventing the Defendant from performing its obligations under the Tenancy Agreement was consistent with the existence of the Oral Agreement to Terminate.

The alleged impossibility of performing the Tenancy Agreement

32     For completeness, I address what I understood to be the Defendant’s alternative arguments, that:

(a)     the Covid-19 pandemic is an “act of God” and a “force majeure event”,

(b)     the Covid-19 pandemic had “frustrated the performance of the Tenancy Agreement”; and

(c)     the Claimant had acted in repudiatory breach of the Tenancy Agreement by instructing the Defendant to move out of the premises and using the Premises as a dormitory for foreign workers.

33     I understood these assertions to be alternative arguments because implicit in these grounds relied upon is the acknowledgment that the Tenancy Agreement had been in subsistence and has not been terminated by agreement of the parties.

The definition of “force majeure” events was narrow

34     The Claimant has correctly submitted that force majeure events have been contractually defined in cl 4(c), and the Covid-19 pandemic would not constitute a force majeure event as it was still possible for the Defendant to perform its obligations under the Tenancy Agreement during the Tenancy Period. In any event, the Defendant had not once given notice of its intention to terminate the contract under cl 4(d) of the Tenancy Agreement.

35     Clause 4(c) defines events that affect the Premises, causing damage and destruction to it. These include destruction by fire, lightning, riot, explosion or other causes beyond the parties which cause the Premises to be unfit for occupation and use. The effects of a pandemic which did not lead to any destruction of the Premises would not constitute an event falling within the ambit of cl 4(c) which would entitle the Defendant to terminate the Tenancy Agreement. Even if there were difficulties in obtaining a licence to operate a canteen at the Premises (there was in fact, scant evidence of such difficulties), the inability of the Defendant to obtain a licence does not entitle the Defendant to terminate the Tenancy Agreement. In any event, as the Claimant has rightly pointed out, there was no evidence that any notice had been given by the Defendant under cl 4(d) to terminate the Tenancy Agreement. Thus, the Defendant would not have, in my view, succeeded in showing that it had a good arguable case that it did not have to perform its primary obligation under the Tenancy Agreement to pay rental on the basis that the Covid-19 pandemic constituted a “force majeure” event.

The Defendant’s alternative case was that of repudiation rather than frustration of contract

36     I turn now to the Defendant’s argument that the Tenancy Agreement had been frustrated by the Covid-19 pandemic and the “consequential curbs and restrictions”[note: 16]. The doctrine of frustration discharges parties from their agreement by operation of law when a supervening event that occurred after the formation of the contract rendered a contractual obligation radically or fundamentally different from that which had been agreed to (Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857). In Lachman’s Emporium Pte Ltd v Kang Tien Kuan (trading as Lookers Music Café, a sole proprietorship) [2022] SGHC 19 (“Lachman Emporium”) at [13], it was held that although the primary obligation to lease has not been rendered impossible by the Covid-19 pandemic or the control measures, there is a bona fide defence of the frustration of the shared purpose of using the Premises for a music lounge. The tenancy agreement required the defendant to use the leased premises as a “pub/bar/cabaret/night club/discotheque/karaoke lounge only…”. On the facts, leave was granted to defend, given that there was a triable factual issue of whether it was the shared purpose of parties that the leased premises was to be operated as a music lounge (which purpose could not be achieved due to Covid-19 control measures), as permission was obtained for the leased premises to be used as a restaurant. Leave to appeal was not granted in Lachman’s Emporium Pte Ltd v Kang Tien Kuan (trading as Lookers Music Café, a sole proprietorship) [2022] SGHC(A) 13.

37     In the present case, the Defendant’s substantiation of the alleged frustrating event bears some scrutiny. The Tenancy Agreement was alleged to have been “frustrated” by the Claimant’s deprivation of the benefit of the Premises for its own gain, rather than events that rendered the Defendant’s performance of its contractual obligations impossible:[note: 17]

The Defendant was frustrated was [sic] performing its contractual obligations due to the pandemic and its consequential restrictions and curbs. The Claimant had actually benefitted from using the Premises for its own use. The Claimant did not pay any compensation to the Defendant for the use of the Premises… there was unjust enrichment by the Claimant at the expense of the Defendant.

[emphasis added]

38     I had indicated that the alleged use of the Premises by the Claimant as a dormitory, thereby depriving the Defendant of the use of the Premises was corroborative that the Alleged Oral Agreement was more than a bare assertion. If the Alleged Oral Agreement did not exist, and indeed the Claimant had used the Premises as workers’ accommodation instead of allowing the Defendant to use it during the Tenancy Agreement, the Defendant’s recourse against the Claimant would have rested on the basis of a breach of the Tenancy Agreement, depriving the Defendant the benefit of the Premises.

39     Thus, a good arguable defence of frustration of the Tenancy Agreement was not raised on the facts presented by the Defendant. However, it would appear to me that there would be a triable issue of whether the Claimant had acted in breach of the Tenancy Agreement by using the Premises as a dormitory for foreign workers if the Alleged Oral Agreement did not exist.

Conclusion

40     In conclusion, I dismissed the summary judgment application as I found that there were triable issues for trial. Essentially, the issues were:

(a)     whether the Defendant was liable for rental payments, despite the non-satisfaction of the condition precedent of payment of stamp duties before the primary obligations under the Tenancy Agreement were to have legal effect and validly bind the parties; and

(b)     relatedly, whether the parties entered into the Alleged Oral Agreement to terminate the Tenancy Agreement between parties in May 2020 with no liability on the Defendant’s part.

41     In the event that it was determined at the trial that the Tenancy Agreement was in force and that the Defendant was liable to perform its obligation to pay rental during the Tenancy Period, the issue of whether the Claimant had acted in breach of the Tenancy Agreement by depriving the Defendant of use of the Premises by using the Premises as a dormitory for workers would arise for determination at the trial.

Decision on costs

42     The Defendant had conducted its response to the Claimant’s application in a confusing and at times contradictory manner. The Defendant has puzzlingly asserted the following in the affidavit filed on its behalf that the Tenancy Agreement “was not valid till 30th of March 2020, not as 15th of March 2020 as claimed by the Claimant”, as the security deposit of $17,000 was paid only on 30 March 2020.[note: 18] This was in stark contrast to its position in the very same affidavit, that the Defendant’s non-compliance with the Tenancy Agreement rendered it “null and void”:

13    The Defendant did not pay its rental for the month of March 2020, the first month of the tenancy period. This effectively meant the Tenancy Agreement was null and void as the rental was never paid from the onset of the tenancy period.

…

15    The Defendant did not pay its Stamp Duty. It only paid its Stamp Duty in late 2023… The failure of the Defendant to pay the said Stamp Duty on a timely basis effectively rendered the Tenancy Agreement null and void.

43     The assertion that the Tenancy Agreement was null and void contradicted the Defendant’s assertion that the Alleged Oral Agreement existed, as it would not be possible to terminate the Tenancy Agreement if it was null and void to begin with. Similarly, there could be no discharge by force majeure or frustration of a contract, if there was no valid Tenancy Agreement to begin with. Further, as I had also highlighted above at [34] – [39], the Defendant’s assertion that the Tenancy Agreement was determined by Covid-19 as a force majeure event or an event frustrating the purpose of the Tenancy Agreement found no basis, even if the Defendant’s asserted facts were assumed to be true.

44     Notwithstanding that costs should follow the event, as the Defendant’s conduct of its response to the application had necessitated lengthy arguments and preparation on the Claimant’s part to meet the multiple areas of arguments traversed, I attenuated the award of costs. Costs to the Defendant was ordered to be paid by the Plaintiff fixed at $2,000 inclusive of reasonable disbursements.

[note: 1]Affidavit filed by Tham Kwok Cheng dated 5 July 2024 (“Tham’s affidavit”) at [16].

[note: 2]Tham’s affidavit at p 40.

[note: 3]Tham’s affidavit at [17].

[note: 4]Tham’s affidavit at p 43.

[note: 5]Tham’s affidavit at [19].

[note: 6]Defence and Counterclaim at [6].

[note: 7]Defence and Counterclaim at [9].

[note: 8]Affidavit filed by Sathappan Sembulingam dated 18 July 2024 (“Sembulingam’s affidavit”) at [20] – [22].

[note: 9]Sembulingam’s affidavit at [14].

[note: 10]Sembulingam’s affidavit at [30] and [33].

[note: 11]Sembulingam’s affidavit at [26].

[note: 12]Defence and Counterclaim at [7].

[note: 13]Tham’s affidavit at p 66, see [4].

[note: 14]Tham’s affidavit at [33].

[note: 15]Affidavit of Manickam Nagarajan dated 2 August 2024 (“Manickam’s affidavit”) at [20] – [21] and Tab 4.

[note: 16]Defendant’s Skeletal Submissions at [9] and [11].

[note: 17]Defendant’s Skeletal Submissions at [11]

[note: 18]Sembulingam’s affidavit at [11].

"},{"tags":["Criminal Law – Conspiracy – Cheating of financial institution – Use of forged documents of public institutions – Accused’s presence & co-accused’s participation – Admissibility of statements – Promise – Inducement – Refreshing memory – Similar fact evidence – Prima facie case at close of prosecution – Credibility of witness – Inconsistency in a witness’s evidence – Acceptance and rejection of parts of a witness’s evidence – Retracted statements implicating accused and co-accused – Sentencing considerations"],"date":"2024-10-03","court":"District Court","case-number":"DAC-933283-2019 & others, MA-9162-2024-01, MA-9163-2024-01 & MA-9164-2024-01, MA-9163-2024-02 & MA-9164-2024-02","title":"Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others","citation":"[2024] SGDC 243","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32276-SSP.xml","counsel":["DPPs Suhas Malhotra, Joseph Gwee & Matthew Choo (for the prosecution)","Wee Pan Lee, Kyle Leslie Sim Siang Chun (before 22 Aug 2022) & Low Chang Yong (from 22 Aug 2022) (M/s Wee, Tay & Lim LLP) for Bijabahadur Rai S/O Shree Kantrai","Patrick Fernandez & Md Arshad (Fernandez LLC) for Kok Chiew Leong, Mohamed Haron Bin Hassan and Juma'at Bin Johari","Tan Cheng Kiong (CK Tan LaCorporation)(discharged on 18 Jan 2022) for Sufandi Bin Ahmad (Accused in Person from 18 Jan 2022)","Manickavasagam s/o R M Karuppiah Pillai (Manicka & Co) for Sufandi Bin Ahmad (B6)(Engaged on 14 Nov 2022 and discharged on 12 June 2023) Sufandi Bin Ahmad (Accused in Person from 12 June 2023)"],"timestamp":"2024-10-22T16:00:00Z[GMT]","coram":"Soh Tze Bian","html":"Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others

Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others
[2024] SGDC 243

Case Number:DAC-933283-2019 & others, MA-9162-2024-01, MA-9163-2024-01 & MA-9164-2024-01, MA-9163-2024-02 & MA-9164-2024-02
Decision Date:03 October 2024
Tribunal/Court:District Court
Coram: Soh Tze Bian
Counsel Name(s): DPPs Suhas Malhotra, Joseph Gwee & Matthew Choo (for the prosecution); Wee Pan Lee, Kyle Leslie Sim Siang Chun (before 22 Aug 2022) & Low Chang Yong (from 22 Aug 2022) (M/s Wee, Tay & Lim LLP) for Bijabahadur Rai S/O Shree Kantrai; Patrick Fernandez & Md Arshad (Fernandez LLC) for Kok Chiew Leong, Mohamed Haron Bin Hassan and Juma'at Bin Johari; Tan Cheng Kiong (CK Tan LaCorporation)(discharged on 18 Jan 2022) for Sufandi Bin Ahmad (Accused in Person from 18 Jan 2022); Manickavasagam s/o R M Karuppiah Pillai (Manicka & Co) for Sufandi Bin Ahmad (B6)(Engaged on 14 Nov 2022 and discharged on 12 June 2023) Sufandi Bin Ahmad (Accused in Person from 12 June 2023)
Parties: Public Prosecutor — Bijabahadur Rai s/o Shree Kantrai — Kok Chiew Leong — Mohamed Haron bin Hassan — Sufandi bin Ahmad — Juma'at bin Johari

Criminal Law – Conspiracy – Cheating of financial institution – Use of forged documents of public institutions – Accused’s presence & co-accused’s participation – Admissibility of statements – Promise – Inducement – Refreshing memory – Similar fact evidence – Prima facie case at close of prosecution – Credibility of witness – Inconsistency in a witness’s evidence – Acceptance and rejection of parts of a witness’s evidence – Retracted statements implicating accused and co-accused – Sentencing considerations

3 October 2024

District Judge Soh Tze Bian:

(A)   INTRODUCTION & CHARGES

1       Each of the 5 accused persons (“APs”), Bijabahadur Rai s/o Shree Kantrai ("BJ"); Kok Chiew Leong ("Kok"); Mohamed Haron bin Hassan ("Haron"); Sufandi bin Ahmad ("Sufandi"); and Juma'at bin Johari ("Juma'at") jointly claimed trial and all were convicted of their respective charges and sentenced after 56 days of hearing. BJ, Kok and Sufandi had filed appeals against their respective convictions and sentences for their cheating and forged documents offences and are each on bail pending their appeals. The Prosecution had filed its appeal against the sentences I have imposed on BJ and Sufandi. As Haron and Juma'at did not file any appeal against their respective convictions and sentences for their fraudulent deed offences and are currently serving their sentence of 10 weeks’ imprisonment each, these Grounds of Decision will deal only with the appeals of BJ, Kok and Sufandi against their respective convictions and sentences as well as the Prosecution’s appeals against the sentences imposed on BJ and Sufandi.

2       BJ, Kok and Sufandi had jointly claimed trial to their respective charges for 35 Saraca Terrace (“Saraca Terrace”) and 1 Woodgrove Walk ("Woodgrove Walk") as follows:

(I)     Saraca Terrace

(a)     Bijabahadur Rai s/o Shree Kantrai (BJ)

(i)     DAC-933252-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Sufandi Bin Ahmad and Kok Chiew Leong to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 31 March 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Mohammad Naseeruddin BinAllamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 to the bank, which documents you knew were false, to deceive the bank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109[note: 1] of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933256-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109[note: 2] of the Penal Code (Chapter 224, 2008 Revised Edition).”

(b)     Kok Chiew Leong (Kok)

(i)     DAC-933266-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Bijabahadur Rai S/O Shree Kantrai and Sufandi Bin Ahmad to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 31 March 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Mohammad Naseeruddin Bin Allamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 to the bank, to deceive the bank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933269-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933270-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 18 March 2014 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(c)     Sufandi Bin Ahmad (Sufandi)

(i)     DAC-933283-2019

“…that you, sometime in 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai and Kok Chiew Leong to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“Maybank”), and in pursuance of the conspiracy and in order to the doing of that thing, on or about 31 March 2014, you did submit a false Notice of Assessment and a false CPF Board Statement (the “false documents”) in the name of Mohammad Naseeruddin bin Allamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 (the “property”) to Maybank, which documents you knew were false, to deceive Maybank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced Maybank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Cap 224, 2008 Rev Ed).”

(ii)   DAC-933286-2019

“…you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933287-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF statement”) dated 18 March 2014 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said CPF statement was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109of the Penal Code (Chapter 224, 2008 Revised Edition).”

(II)   Woodgrove Walk

(a)     Bijabahadur Rai s/o Shree Kantrai (BJ)

(i)     DAC-933254-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 6 August 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Iswandi Bin Yahya (“Iswandi”), the named buyer of a property located at 1 Woodgrove Walk Singapore 738144 to the bank, which documents you knew were false, to deceive the bank into believing that Iswandi had an annual income of $471,600 in 2014, facts which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,840,000 to Iswandi in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933261-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 23 May 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933262-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 5 August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iv)   DAC-933263-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine DBS Treasures POSB Passbook Savings Account (no. xxxx) statements for June 2014, July 2014 and August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be forged documents, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said bank statements were submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(b)     Sufandi Bin Ahmad (Sufandi)

(i)     DAC-933284-2019

“…that you, sometime in 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“Maybank”), and in pursuance of the conspiracy and in order to the doing of that thing, on or about 6 August 2014, you did submit a false Notice of Assessment and a false CPF Board Statement (the “false documents”) in the name of Iswandi Bin Yahya (“Iswandi”), the named buyer of a property located at 1 Woodgrove Walk Singapore 738144 (the “property”) to Maybank, which documents you knew were false, to deceive Maybank into believing that Iswandi had an annual income of $471,600 in 2014, a fact which you knew to be false, and by such manner of deception, you dishonestly induced Maybank into approving and delivering a mortgage loan of $2,840,000 to Iswandi in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Cap 224, 2008 Rev Ed).”

(ii)   DAC-933288-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 23 May 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933289-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 5 August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iv)   DAC-933290-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine DBS Treasures POSB Passbook Savings Account (no. xxxx) statements for June 2014, July 2014 and August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be forged documents, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said bank statements were submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(B)   AGREED STATEMENT OF FACTS

3       Prior to the commencement of the trial, all parties had signed an agreed statement of facts (ASOF) with a list of exhibits admitted by consent[note: 3]. Having been advised by Counsel, subject to the qualifications in paragraphs 13 and 28 of the, ASOF, Sufandi accepts the facts stated in the ASOF and that he would be bound by the facts stated in this ASOF, even after his Counsel is discharged; and he will require leave of Court for any admission made in this ASOF to be withdrawn[note: 4].

(C)   PROSECUTION’S CASE

4       The Prosecution’s opening statement dated 18 January 2022 set out its case[note: 5]. To prove its case against the AP, the Prosecution tendered voluminous bundles of 92 exhibits and called the following 25 witnesses:

S/N

Witness

Role

Court Marking

35 Saraca Terrace

1.

Yeo Ming Joo

Vendor of 35 Saraca Terrace.

PW1

2.

Lim You En

Vendor of 35 Saraca Terrace.

PW2

3.

Koh Jin Min Adrian

Vendor’s property agent.

PW3

4.

Mohammad Naseeruddin bin Allamdin

Purchaser of 35 Sarada Terrace.

PW4

5.

Fauziah Binte Mohamed Hussain @ Angela Veronica

Secretary at the law firm acting for the purchaser.

PW5

6.

Tan Poh Geok

IRAS Officer: To give evidence on the authenticity of Notices of Assessment submitted to Maybank.

PW8

7.

Go Theng Theng

IRAS Officer. To give evidence on the Payment Records for the Stamp Duty of 35 Saraca Terrace and 1 Woodgrove Walk.

PW7

8.

Wong Jing Ling Jerlyn

Maybank sales officer.

PW9

9.

Leow Kwee Far Dorothy

Maybank credit manager.

PW10

10.

Tay Han Liang

Complainant for 35 Saraca Terrace and 1 Woodgrove Walk. Mortgage manager of Maybank.

PW12

1 Woodgrove Walk

11.

Ammar Salim bin Ariff

Maybank sales officer.

PW13

12.

Iswandi bin Yahya

Purchaser of 1 Woodgrove Walk.

PW16

13.

Shirley Goh

Secretary at the law firm acting for the purchaser.

PW19

14.

Kanthosamy Rajendran

Vendor’s solicitor.

PW14

15.

Gobikrishna s/o Chinaya

Son of Govindasamy Chinaya.

PW22

16.

Tay Chye Huat

Director of the company to which a portion of the sales proceeds were paid.

PW18

17.

Mohamad Pauzi Ali

To give evidence on the authenticity of the bank statements submitted to Maybank.

PW11

18.

Mohamad Hamzi bin Rabu

Vendor of 1 Woodgrove Walk.

Deceased

19.

Rohana Binte Januri

Vendor of 1 Woodgrove Walk.

PW6

20.

Prasanna D/O T.V Prabhakaran

To give evidence on the meeting with Hamzi, Rohana, and Haron concerning 1 Woodgrove Walk

PW15

21.

Clarissa Bay

To give evidence on the loss suffered by Maybank

PW17

Law enforcement officers

22.

Commercial Affairs Officer Hong Jinglin

Investigation officer.

PW20

23.

Commercial Affairs Officer Chew Min

Investigation officer.

PW21

24.

Commercial Affairs Officer Wu Qiuping

Investigation officer.

PW23

Other Witnesses

25.

Zulkarnain Lim Bin Zulkefli

PW24



(I)    ANCILLARY HEARINGS

(D)   ISSUES ARISING AT ANCILLARY HEARINGS

5       The issues arising at 5 ancillary hearings for my determination were as follows:

(I) Whether a co-accused can participate in an accused’s ancillary hearing?

(a)     Having carefully considered the submissions and case authorities of the parties on this issue, I accepted the Defence submissions that each of the co-accused has the right to object to the admissibility of Sufandi’s CAD statements and they are all entitled to participate in the ancillary hearing.

(b)     I took into account the provisions of ss 279(1) and (3) of the Criminal Procedure Code (“CPC”), which allow any party to object to the admissibility of statements or evidence. The absence of a distinction between "statement" and "evidence" in the CPC supports the argument that co-accused should be allowed to participate in ancillary hearings regarding the admissibility of any evidence, including statements.

(c)     In my view, the Prosecution’s reliance on the cases of Jasbir Singh v PP [1994] 1 SLR(R) 782 (“Jasbir Singh”) and Panya Martmontree v PP [1995] 2 SLR(R) 806 (“Panya Martmontree”), failed to take into account that this was the “previous practice” (as pointed out in the current 2020 edition of Evidence and the Litigation Process, wherein Jeffrey Pinsler SC described the position taken in Jasbir Singh and Panya Martmontree as “the previous practice”), particularly when the present s 279(1) CPC was enacted (after Jasbir Singh and Panya Mortmontree were decided) wherein s 279(1) CPC provides that any party may object to the admissibility of any statement made by that party or any other evidence which the other party to the case intends to tender at any stage of the trial.

(d)     The statements made by the Minister for Law during the 2nd reading of the CPC 2010 bill indicated that ancillary hearings are necessary when any party objects to the admissibility of evidence. Co-accused individuals are entitled to cross-examine witnesses during the ancillary hearing, under ss 279(1) and 279(3) CPC. Evidence presented during the ancillary hearing is admissible in the main trial without the need to recall witnesses, as specified in s 279(5) CPC.

(e)     The court’s power under s 279(6) CPC to recall witnesses from the ancillary hearing during the trial, if necessary, for further examination or cross-examination by either party, is to be exercised only in the interests of justice. As contemplated under ss 279(7) to 279(9) CPC, the court can assess the value and relevance of any evidence arising from cross-examination during the ancillary hearing, with the option to reverse its decision based on further submissions from the parties before the conclusion of the trial.

(f)     For the above reasons, I ruled that the co-APs have the right to participate in ancillary hearings concerning the admissibility of the CAD statements of their co-accused, Sufandi, so as to ensure procedural fairness and compliance with relevant legal provisions.

(II) Whether an accused person needs to be present in court while a co-accused person’s evidence is being taken in an ancillary hearing ?

(a)     S 233 CPC mandates that the evidence of a witness during a trial must be taken in the presence of the accused, unless the accused's personal attendance is dispensed with.

(b)     As one of the co-accused, Kok cannot be present in court due to been tested positive for COVID-19 and needed to self-isolate, I found it inappropriate to dispense with Kok's personal attendance, especially considering that his counsel requires his presence to take instructions. Since Kok is allowed to participate in Sufandi's ancillary hearing on his CAD sattements, I ordered that Sufandi's ancillary hearing cannot proceed without Kok's presence.

(c)     In compliance with the COVID-19 regulations of the Ministry of Health, which prohibited Kok from attending court due to his positive test result and self-isolation requirements, I ordered Sufandi's ancillary hearing to be adjourned. The adjournment is contingent upon Kok's COVID-19 test result being negative or, if positive, upon his ability to attend court via video-conferencing. Alternatively, the adjournment period is set for 7 days from the date Kok first tested positive for COVID-19.

(d)     Hence, I ruled that Kok's personal attendance cannot be dispensed with for Sufandi's ancillary hearing, and therefore, the hearing is adjourned until Kok's COVID-19 situation allows his participation either physically or via video-conferencing.

(III) Whether there is any alleged promise and/or inducement made by CAD officer Hong Jinglin (PW20) and/or CAD officer Chew Min (PW21) to Sufandi in relation to his requests for overseas travels so as to get his cooperation to give positive statements in his 5 CAD statements implicating himself and his co-accused thereby rendering the aforesaid CAD statements inadmissible as evidence?

(a)     An ancillary hearing (AH) was conducted by this Court to determine the admissibility of Sufandi’s 5 statements as set out below :

(i)       Statement dated 8 June 2016 marked as P65i.

(ii)       Statement dated 29 July 2016 marked as P66i.

(iii)       Statement dated 2 December 2016 marked as P67i.

(iv)       Statement dated 11 April 2017 marked as P78i.

(v)       Statement dated 24 April 2019 marked as P79i.

(b)     The provisions under ss 258(1) to 258(3) CPC establish the rules for the admissibility of statements made by a person charged with an offence, as well as the limitations on their admissibility. Any statement made by an accused, whether oral or written, is generally admissible as evidence at his trial. This applies to statements made at any time, whether before or after the person was charged with an offence. It also includes statements made during or outside of an investigation by any law enforcement agency. If the accused chooses to testify in court, any previous statements made by him can be used by the prosecution for cross-examination or to challenge the accused’s credibility. However, statements made to a police officer below the rank of sergeant are not admissible in court. Further, the court is required to reject or disallow the use of a statement if it was made by the accused due to inducement, threat, or promise from a person in authority which must be of a nature that would cause the accused to reasonably suppose that he would gain some advantage or avoid some evil of a temporal nature in reference to the proceedings.

(c)     A two-staged test has been laid down by the Court of Appeal[note: 6] to determine whether a statement was given voluntarily: (i) whether, objectively, any inducement, threat or promise was made; and (ii) whether, subjectively, the inducement, threat or promise operated on the mind of the particular accused, such that the accused reasonably supposed that he would gain some advantage or avoid some evil of a temporal nature in relation to the proceedings against him.

(d)     The Court of Appeal[note: 7] had considered the application of s 258 CPC and stated as follows:

(i)       Any statement provided by an accused is initially considered admissible, but this is contingent upon the requirement of voluntariness.

(ii)       In cases where the voluntariness of a statement is challenged and an AH is convened, the burden of proof rests on the Prosecution to demonstrate beyond a reasonable doubt that the statement was made voluntarily.

(iii)       If a statement is deemed involuntary according to the definition provided in s 258(3) of the CPC, the court must reject its admission.

(iv)       The court employs a two-stage inquiry to ascertain the voluntariness of a statement. During the first stage, the court objectively evaluates whether any threat, inducement, or promise was given. This evaluation also includes an examination of potential gains or losses, as well as the level of assurance provided. In the second stage, the court considers the subjective impact of the threat, inducement, or promise on the accused's state of mind. This assessment encompasses all relevant circumstances, including the accused’s personality and prior experiences.

(e)     Based on the evidence[note: 8] presented at the AH and submissions from the parties, I found that Sufandi's allegations did not satisfy the 1st stage of the test for determining the voluntariness of a statement. The Prosecution has established beyond a reasonable doubt that no promises were made by CAO Hong or CAO Chew to Sufandi. Both CAO Hong and CAO Chew clearly denied making any promises regarding Sufandi's travel or avoiding charges. Objective documentary evidence supported their testimonies, indicating that no formal travel application was ever submitted to CAO Hong. The travel application was only made to CAO Chew, who was handling such matters during CAO Hong's maternity leave. The application to CAO Chew was promptly approved by the CAD after receiving all necessary details, including the purpose of the trip, itinerary, and bailor information. The absence of any promises or inducements, as confirmed through both the testimonies and objective evidence, means that the first stage of the test is satisfied. My reasons are as follows.

(f)     Based on CAO Hong's testimony and the CAD Bail Memo prepared by CAO Chew, I found that CAO Hong did not have unilateral authority to approve overseas travel requests as decisions on such requests required clearance from her superiors, indicating a hierarchical process for approval. The CAD Bail Memo prepared by CAO Chew outlined a process involving two levels of approval within CAD for overseas travel requests. This hierarchical approval process reinforces CAO Hong's limited discretion in granting travel permission. Any promise made by CAO Hong regarding travel permission could have been ineffective if it was ultimately subject to approval from higher authorities. If CAO Hong's superiors denied the request, the promise would have been void. Similarly, any threat to withhold travel permission might have been ineffectual if her superiors had the authority to override her decision and grant permission despite the threat. In my view, CAO Hong's limited authority suggests that any promises or threats related to travel made by her may not have been significant in influencing Sufandi’s decision to make a statement and her lack of unilateral authority diminishes the impact of any alleged promises or threats made to Sufandi, as decisions were ultimately subject to higher-level approval within CAD.

(g)     Based on the evidence presented at the AH, Sufandi’s November 2015 travel request contained a typographical error concerning the travel date which he did not follow up with CAO Hong to correct it. Sufandi’s December 2015 travel request was vague and lacked essential details such as the purpose of the trip, itinerary, accommodation, transportation plans, and particulars of a suitable bailor which made it challenging for CAO Hong to process the request effectively. Sufandi did not take steps to follow up on his travel requests or provide the necessary information to CAO Hong. CAO Hong, who was on maternity leave during this period, was not involved in the decision-making regarding Sufandi's travel. In my view, the evidence suggests that Sufandi’s failure to provide essential details and follow up on travel requests contributed to their rejection which was not influenced by any promises or threats from CAO Hong. There is no evidence of any nefarious intent on the part of CAO Hong. The lack of detail and follow-up by Sufandi regarding his travel requests raises questions about his level of commitment and seriousness. Further, Sufandi only alleged that a promise to allow travel in exchange for favourable statements arose on 8 June 2016, which is after the dates of the travel requests in question.

(h)     CAO Chew, covering for CAO Hong during her maternity leave, independently assessed and approved Sufandi’s travel request in April 2017. This demonstrates that CAO Chew had the authority and autonomy to make decisions regarding travel permissions without direct involvement from CAO Hong. There was a notable disagreement between CAO Hong and CAO Chew regarding the terms of Sufandi’s travel. CAO Hong disagreed with CAO Chew's recommendation on the bail quantum for Sufandi. This indicates that the decision-making process regarding Sufandi's travel was not uniform and that CAO Hong did not control or dictate the outcome. If CAO Hong had been using travel permissions as leverage to obtain positive statements from Sufandi, it would be expected that she would have been more involved and given specific instructions to CAO Chew. The fact that CAO Chew independently managed the travel request and that CAO Hong's disagreement on the bail terms suggests that travel permissions were not being used manipulatively. In my view, the evidence supports the conclusion that CAO Hong did not use travel permissions as leverage to obtain positive statements from Sufandi. The independent handling of the travel request by CAO Chew and the lack of alignment between CAO Hong and CAO Chew in their decisions regarding Sufandi’s travel suggest that the decision-making process was conducted fairly and without undue influence.

(i)     CAO Chew’s handling of Sufandi’s travel application in April 2017 was professional and reasonable. CAO Chew processed and approved the application independently, which aligns with CAO Hong's testimony about CAO Chew’s autonomy in managing travel requests. There were no promises of travel made by either CAO Hong or CAO Chew to Sufandi. Sufandi's previous failure to travel was attributed to incomplete or improper applications rather than any manipulation or bargaining by CAO Hong or CAO Chew. By April 2017, when Sufandi made a proper application and provided details of his bailor, it was the first complete application received. CAO Chew’s approval was based on the legitimacy of Sufandi’s reasons for travel, including verifiable details of the soccer tournament in Kuala Lumpur. CAO Chew assessed Sufandi’s flight risk as low, taking into account that he was travelling with his family and no external factors suggested a risk of absconding. In my view, the evidence supports that CAO Chew's approval of Sufandi’s travel request was based on a professional assessment and not influenced by promises or manipulation. The handling of Sufandi’s travel application was consistent with standard procedures and did not involve leveraging travel permissions for obtaining favourable statements. The conduct of CAO Hong and CAO Chew demonstrates that travel permissions were managed appropriately and fairly.

(j)     Both CAO Hong and CAO Chew testified with candour and fairness. Their demeanour and the way they answered questions reflected a commitment to honesty and transparency. The bail memo and other documentary evidence supported their testimonies. The documentation provided clear reasons for their decisions and aligned with their oral accounts. The Prosecution’s assessment that CAO Hong and CAO Chew were fair-minded civil servants is supported by the evidence as there was no indication that promises regarding travel were made to Sufandi, as per their respective testimonies and the supporting documents. Hence, I found that CAO Hong and CAO Chew have acted within their professional duties without any undue influence or promises related to Sufandi's travel requests. Their conduct and the documentary evidence support the integrity of their decisions and their credibility in the matter.

(k)     Sufandi’s allegation regarding promises made to him appears to have evolved over time. Initially, it was claimed that CAO Hong promised to recommend the approval of Sufandi's travel request in exchange for a positive statement. This initial claim was later expanded to include promises of not being charged or going "scot-free" if Sufandi cooperated as a prosecution witness. This shift came after the Prosecution introduced a bail memo from CAO Chew. During cross-examination, CAO Chew was implicated in the promise, despite Sufandi's previous evidence that CAO Chew was not involved and did not make any promises. Sufandi's counsel had earlier exonerated CAO Chew from making any promises. Sufandi admitted that he did not instruct his counsel regarding the alleged promise and did not verify with his counsel about this issue during the initial testimony of CAO Hong before her recall. The shifting nature of the allegation, along with inconsistencies in Sufandi's statements and the actions of his counsel, suggests that the allegation regarding promises made to Sufandi evolved as the case progressed. The lack of clear and consistent evidence to support the allegation and the evolving nature of the claims indicate that the allegation may have been introduced as an afterthought or in response to new evidence, rather than being based on a solid, initial claim. In light of these observations, I found that the credibility of Sufandi’s allegation is called into question, and its introduction and modification over time undermine its reliability.

(l)     Sufandi initially denied that CAO Chew made any promises but later altered his claim to state that CAO Chew promised not to charge him if he cooperated, following the appearance of the phrase "prosecution witness" in the bail memo. During EIC, Sufandi expressed ignorance about the wrongfulness of CAD’s methods, but his stance faltered during XE as he made increasingly implausible claims which included a lack of awareness about the implications of a false confession and inconsistencies about his expectations of being charged and receiving a lesser sentence. Sufandi could not provide a credible explanation for not instructing his counsel about the alleged promise involving CAO Chew. His inability to address this gap in his defence suggested that the allegation was potentially fabricated or altered in response to new evidence. Sufandi's explanations, particularly his belief that being a prosecution witness was not wrong and his delayed introduction of the promise allegation, were implausible. The inconsistency between his initial denial and later admission, coupled with his contradictory statements about expectations and charges, further undermined his credibility. In my view, the significant inconsistencies in Sufandi's accounts, coupled with his contradictory and implausible explanations, cast substantial doubt on the credibility of his claims regarding promises made by CAD officials. His evolving story and lack of coherent reasoning regarding his actions and instructions to counsel suggest that the allegations were not substantiated and may have been developed or modified in response to new information.

(m)     Sufandi's reliance on the CAD's bail memo is unfounded, particularly concerning his interpretation of the phrases "prosecution witness" and "cooperation." CAO Chew, as CAO Hong's covering officer, had limited involvement in Sufandi's case and lacked the authority to make prosecutorial decisions. Furthermore, there appears to be no reason for CAO Chew to have made any promises regarding non-prosecution. CAO Chew clarified that the term "cooperation" in the bail memo referred to Sufandi's willingness to answer questions openly during the statement recorded on 11 April 2017. This interpretation was consistent, even under XE. Conversely, Sufandi's claim that "cooperation" in his email implied self-incrimination or implicating other suspects conflicts with the context and structure of his email. The email shows Sufandi's readiness to provide documents and travel details, indicating his intent to cooperate by sharing necessary information for his travel request. Therefore, I found that Sufandi's interpretation of "cooperation" lacks merit, whereas CAO Chew's explanation is consistent and logical.

(n)     I agreed with the Prosecution and rejected the Defence's argument regarding CAO Hong's credibility. The Defence argued that CAO Hong lacked credibility because she allegedly failed to follow proper procedures in handling Sufandi's earlier travel requests. However, CAO Hong explained that there was no standard operating procedure (SOP) requiring a bail memo for every travel request from a suspect. She further clarified that she did not prepare a bail memo for Sufandi's travel requests in November 2015 and December 2015 because he did not provide essential information, such as bailor details, reasons for travel, or a complete itinerary. This explanation was corroborated by CAO Chew's testimony during RE, where she confirmed that she would not have processed Sufandi's previous travel requests in 2015 due to the lack of necessary information. CAO Hong's statement that she did not formally process Sufandi's previous request because it lacked bailor particulars was consistent with the requirements stated in the bail memo. Additionally, Sufandi's own email dated 4 April 2017 acknowledged the necessity of bailor details, demonstrating his understanding of this requirement. Therefore, the Defence's suggestion that bailor particulars are required only after the preparation and approval of the bail memo was incorrect. In my view, the alignment between CAO Hong's evidence, CAO Chew's testimony, and Sufandi's acknowledgment of the bailor requirement supported the conclusion that proper procedure was followed in handling Sufandi's travel requests. Consequently, the Defence's argument about CAO Hong's lack of credibility was unfounded.

(o)     Regarding the Defence's claim that CAO Hong was involved in the preparation of the bail memo because CAO Chew used the collective noun "we" in the document, I agreed with the Prosecution that CAO Chew's use of "we" was loose and inconsistent. Throughout the bail memo, CAO Chew alternated between using "we" and "I," indicating that "we" did not specifically imply a joint effort with CAO Hong. For example, CAO Chew used "we" to refer to a statement she recorded alone on 11 April 2017, which demonstrates that the term "we" does not necessarily mean that CAO Hong was involved in preparing the memo. Additionally, CAO Hong's testimony confirmed that she was not involved in the bail memo's preparation because she was on maternity leave during the relevant period. Furthermore, CAO Hong disagreed with CAO Chew's recommendation to allow Sufandi to travel, reinforcing that she was not part of the decision-making process concerning the bail conditions. Therefore, the Defence's suggestion that the use of "we" in the bail memo implied CAO Hong's involvement is inconsistent with CAO Chew's testimony and the context of the memo itself. This conclusion is further supported by a table submitted by the Prosecution as reproduced below:

Para

Extracts from the Bail Memo

[5]

“ … we have identified three main perpetrators of the scam, namely, Sufandi, Kok and BJ”

[11]

“I have verified from open internet source that the KL Cup

2017 is indeed slated to happen … “

[12]

“We have considered the following factors … “

[13]

“Based on the assessment above, it is my opinion that the degree of risk associated with Sufandi absconding is low.”

[15]

“We have recorded a statement from him today and it appears that he is still lending his cooperation to the Police.”

[16]

“I recommend to deviate from CAD’s guidelines …”



(p)     I rejected the Defence's argument about the interpretation of the term "cooperate" in the bail memo. CAO Chew consistently used the word "cooperate" to mean that Sufandi had fulfilled his obligation by attending interviews and answering questions. This interpretation was supported by Sufandi's own use of the term "cooperation" in his email, where he expressed his willingness to provide the necessary information for his travel request. During XE, CAO Chew disagreed with the notion that "cooperation" meant Sufandi had confessed to or implicated his co-accused. I found that CAO Chew did not use "cooperate" to imply that Sufandi had confessed or implicated others in criminal offences as a condition for the CAD to allow him to travel. Furthermore, BJ’s counsel's submission that the only significant factor that changed between June 2016 and July 2017 was Sufandi’s cooperation overlooked the fact that, unlike in his earlier travel requests in June 2016, Sufandi had provided the requisite information in April 2017 for his travel request to be processed. This included the reason for travel, the duration of travel, the destination, and the particulars of a bailor. CAO Chew disagreed with BJ’s counsel's argument that the only significant factor that changed was Sufandi’s cooperation as she had testified that she did not know when the change in circumstances occurred. Therefore, the Defence's argument about the interpretation of "cooperate" was not supported by the evidence, and the submissions by BJ’s counsel failed to account for the full context surrounding Sufandi's travel requests.

(q)     I found the Defence's argument illogical that CAO Chew's reference to Sufandi as an important Prosecution witness in the bail memo automatically corroborated the allegation that Sufandi was promised he would be treated as a witness and not charged with a criminal offence. As pointed out by the Prosecution, CAO Chew's reference to Sufandi as an important Prosecution witness in the bail memo did not imply that any promise was made to treat him as a witness instead of an accused person. The way Sufandi introduced the alleged promise during the AH suggested that he fabricated the promise after seeing the phrase "prosecution witness" in the bail memo. This indicated that Sufandi's claim of being promised treatment as a witness was not grounded in any prior agreement but was instead a later concoction. Therefore, the Defence's argument lacked a logical basis, as it incorrectly assumed that the reference in the bail memo to Sufandi as a witness meant a promise was made to treat him as a witness instead of an accused person.

(r)     The Defence argued that the testimonies of CAO Chew and CAO Hong regarding whether Sufandi was considered a Prosecution witness were contradictory, suggesting that one of the CAD officers might be lying. However, as noted by the Prosecution, this allegation was not raised during XE by any of the Defence Counsels (“DCs”), and the officers were not questioned about whether they discussed Sufandi's status with each other. CAO Chew testified that she formed her opinion about Sufandi's status independently but could not recall specific details, such as which documents influenced her impression. I found that there was no evidence indicating that CAO Hong's case summary identified Sufandi as a witness or that this document influenced CAO Chew's opinion. Therefore, I agreed with the Prosecution that no adverse inference should be drawn against them for not producing CAO Hong's case summary, as requested by the Defence. The lack of questioning on this point by the DCs during XE of CAO Chew and CAO Hong and the absence of evidence connecting CAO Hong's case summary to CAO Chew's opinion meant there was no basis for the Defence's claim of contradiction or dishonesty between the 2 CAD officers.

(s)     The Defence argued that Sufandi did not change his allegation but instead provided an additional allegation alongside the original promise that he would be allowed to travel. The Defence claimed that this demonstrated consistency and credibility in Sufandi's testimony. However, as the Prosecution pointed out, the issue is not whether Sufandi changed or added a promise, but rather that a highly critical and material promise was not mentioned at the beginning of the AH. There were inconsistencies in Sufandi's testimony, such as initially attributing the promise solely to CAO Hong, and later claiming it was made by both CAO Hong and CAO Chew. These shifts in Sufandi’s testimony during the hearing suggested a willingness to modify his evidence to suit his own purposes. An example highlighted by the Prosecution is Sufandi’s claim that the CAOs supposedly used the phrase “point finger” during the recording of the statements. This phrase was not brought up until the Bail Memo was introduced as evidence, which happened after CAO Hong had finished her testimony (but before the Defence applied to recall CAO Hong to question her about the Bail Memo). The phrase “point finger” was not mentioned, nor was it brought up during the initial XE of CAO Hong by the DCs. Later, however, the Defence began using this phrase extensively during their XE of the CAOs, and it subsequently became a part of Sufandi’s evidence, with him claiming that CAO Hong had explicitly used the words “point finger” during XE. In my view, this pattern of inconsistencies and shifts in Sufandi's testimony undermined his credibility and indicated that he was willing to tailor his evidence to support his allegations. Thus, the Defence's contention that Sufandi was merely adding to his allegation rather than changing it did not hold up against the inconsistencies in his testimony.

(t)     Regarding BJ's submission that travel was a priority for Sufandi, especially given his extensive travels after his trip in April 2017, I agreed with the Prosecution's argument that this claim was not supported by the evidence as Sufandi did not make any travel requests for a period of 1.5 years between December 2015 and April 2017.

(u)     For the above reasons, I found that the evidence proved beyond reasonable doubt that no promise that Sufandi will not be charged was made as Sufandi had concocted this promise after having seen the bail memo written by CAO Chew, and Sufandi had therefore failed the first stage of the test laid down by the Court of Appeal.

(v)     Regarding the second stage of the test laid down by the Court of Appeal, I agreed with the Prosecution that the alleged promises made to Sufandi were inherently absurd and trivial, and they did not influence him when he provided the five statements to the CAD. As pointed out by the Prosecution, Sufandi's claim that he falsely confessed in five different statements to serious offences of submitting forged documents to banks in order to be allowed to travel, and that he would risk lengthy imprisonment in exchange for short-term travel permission, lacked logic and was inherently absurd. During XE, Sufandi himself acknowledged the possibility that any false confession could be used against him and his co-accused, potentially leading to severe legal consequences, including imprisonment. This admission undercuts his claim that he would have provided false confessions simply to secure travel permission. Additionally, there was no evidence that Sufandi was misled into believing he would not be charged for providing a false confession in exchange for travel permission. He had also acknowledged the possibility that any promises made to him could be reneged upon by CAO Hong. Hence, I agreed with the Prosecution that Sufandi was not operating under any misconception and was not so gullible as to believe that the CAD would allow him to travel after providing a false confession or that he would not face prosecution or have those confessions used against him.

(w)     Sufandi's behaviour does not support his claim that travel was of utmost importance to him, rated “10 out of 10.” Despite this assertion, he did not correct a typographical error in his email dated 1 November 2015 or follow up on his request to travel with his family in December 2015. Furthermore, after his last travel request in December 2015, he did not make any additional travel requests for the next one and a half years, during which time he provided three incriminating statements to the CAD. Sufandi also did not seek clarification from CAO Hong about whether she would fulfil any alleged promises related to travel permissions. Instead, he claimed he "must be patient" and continued to express trust in CAO Hong, describing her as "honest," despite his allegation that she had asked him to falsely confess to a crime and then subsequently charged him for it. Based on the evidence presented at the AH, it is clear that travel was not a priority for Sufandi. This is evident from his willingness to wait patiently for one and a half years before submitting a detailed formal travel request in April 2017. Thus, I agreed with the Prosecution that any discussions about travel could not have subjectively induced Sufandi into giving the five statements to the CAD. His actions did not align with the urgency or importance he later claimed travel had for him, undermining the Defence's argument that travel-related promises influenced his decision to provide the statements.

(x)     Sufandi's behaviour is inconsistent with the claim that he was promised he would not be charged. Despite allegedly feeling betrayed by the CAD, he did not mention this supposed promise to his counsel at the start of the AH. In his testimony, Sufandi suggested that he adopted a nonchalant attitude, conveying a "c'est la vie" (such is life) mindset, and claimed he did not inform his counsel about the promise not to be charged because he had "no evidence" to substantiate it. However, if Sufandi genuinely believed he was promised not to be charged and then faced charges for the very offences he was allegedly asked to falsely confess to, it would be reasonable to expect him to raise these allegations immediately after being charged. Contrary to this expectation, there is no record of him doing so. He did not mention the alleged promise in his cautioned statements, his pretrial case for the defence, or at the start of the AH, despite describing the supposed betrayal by the CAD when giving evidence at the AH. In my view, the only logical conclusion is that Sufandi fabricated the alleged promises. His failure to raise the issue earlier, despite the seriousness of the betrayal he described, suggests that the promises were concocted to serve his interests during the hearing.

(y)     I accepted the Prosecution's submissions that Sufandi's statements provided a credible explanation for the changes in his position in the later statements recorded by the CAD. While Sufandi testified during his EIC that he did not confess to any criminal conduct or implicate his co-accused before the five statements in question, his earlier statements prior to 8 June 2016 did, in fact, contain confessions and implications of his co-accused. For instance, in his statement dated 2 October 2015, Sufandi implicated Kok in committing forgery, and in his statement dated 7 October 2015 at 1400 hours, he confessed and implicated Kok in inflating the stated selling price of 35 Saraca Terrace to secure a higher bank loan. Sufandi confirmed that these statements dated 2 October 2015 and 7 October 2015 were given voluntarily without any promises from CAO Hong and were admitted as part of the evidence at the trial as P-86 and P-87. The Prosecution highlighted that the difference between the earlier and later statements is not that Sufandi gave "negative" statements earlier (i.e., statements in which he did not confess to any wrongdoing) and "positive" statements later (i.e. confessions to criminal offences). Rather, the distinction lies in the degree of detail provided and the fact that Sufandi implicated his co-accused, BJ, in the later statements recorded after his release from prison. Furthermore, as pointed out by the Prosecution, Sufandi's claim that he "confessed" in the statements after 8 June 2016 due to alleged promises made by the CAD does not adequately explain why he admitted to inflating the price of 35 Saraca Terrace even before 8 June 2016 or why he provided extensive details about Kok's involvement in the cashback scheme for this property, even implicating Kok as having forged documents. In my view, this inconsistency undermines Sufandi's argument that his confessions in the later statements were solely influenced by the alleged promises from the CAD officers.

(z)     I rejected the Defence's contention that Sufandi's explanation in his statement—that he changed his mind because BJ did not keep his promise of taking care of Sufandi's family—is not the true state of affairs. The Defence argued that Sufandi could have given a positive statement while still in prison as soon as he learned from his wife, through monthly visits, that BJ had not taken care of his family. The Defence suggested that the real reason Sufandi changed his position in the statements was because of the alleged promises made by the CAD. However, I agreed with the Prosecution's position that, based on Sufandi’s own evidence, he had decided to come clean to the CAD only after confronting BJ following his release from prison. Sufandi’s explanation in his statement dated 8 June 2016 clearly stated that: “He promised me that he will take care of my family when I was in prison, but my wife said he did not. So I looked for him when I was out to ask him why he did not honour his words. He gave me a different story, he said my wife don’t want the money…. I told him to help my family if they got financial difficulties. But I think he thinks that it is useless to support my family because I am not of value to him anymore…. What I said today is the truth, I think no point hiding anymore. For my family I think I should say the truth….I wanted to protect BJ then. But now I am sick and tired of all these things. I helped him but he didn’t help me, so no point helping him anymore….” In my view, the aforesaid explanation from Sufandi’s statement dated 8 June 2016 supports the logic that Sufandi could have only decided to change his position and stop “protecting” BJ after he had the opportunity to confront BJ, which could only occur after his release from prison.

(aa)       In light of the above, I accepted the Prosecution's submissions and found that Sufandi's allegations also failed the 2nd stage of the test as laid down by the Court of Appeal. There was no basis for the Defence's submissions that both CAD officers had gauged Sufandi's level of cooperation solely based on whether they assessed his answers to be truthful and whether he implicated himself and others, or that Sufandi was promised he would be allowed to travel if he made statements that the CAD officers considered to be truthful. The Defence's assertion that these alleged promises caused Sufandi to believe he would gain advantage or avoid evil of a temporal nature is unfounded. Based on the evidence adduced at the AH, it is clear that the contents of the statements given before and after the alleged promises were made do not support Sufandi’s claim that he falsely confessed in the statements after 8 June 2016 due to promises made by CAD. Instead, the evidence proves beyond a reasonable doubt that Sufandi had been concealing BJ’s involvement while he was in prison. After his release, upon realizing that BJ did not support his family financially, Sufandi decided to disclose BJ's involvement to CAD. This decision was motivated by his personal grievances with BJ and had nothing to do with any promises allegedly made to him by CAD regarding travel or the assurance of not being charged.

(bb)       Accordingly, I ruled that there was no promise and/or inducement made by CAO Hong (PW20) and/or CAO Chew (PW21) to Sufandi in relation to his requests for overseas travel so as to get his cooperation to give positive statements implicating himself and his co-accused, thereby rendering the above five Statements inadmissible as evidence. I found that the five Statements were made voluntarily by Sufandi without any alleged promises and/or inducement by CAO Hong or CAO Chew as his allegations of promises and/or inducement are plain lies to be rejected, and the aforesaid five CAD Statements of Sufandi are therefore admitted as part of the evidence in the Prosecution’s case against the APs.

(IV) Whether the questions and answers from PW22 Gobikrishna’s statement which were read aloud in Court by the Prosecution should be ignored in view of the fact that they have been read and recorded as part of the trial proceedings, but the statement from which they were quoted was not admitted as evidence?

(a)     I have considered the written submissions and replies of the parties and also referred them to “Evidence and the Litigation Process, Seventh Edition, 2020 by Jeffrey Pinsler SC” on Refreshing Memory from 19.033 to 19.039” (“the book”) which I found to be instructive for the following relevant legal principles on a witness refreshing of memory from a document :

(i)       A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. It is not necessary for the document used to refresh memory to be admissible in evidence.

(ii)       A witness may refresh his memory in the course of any stage of examination by the party who called him or the opposing party. This is the effect of s 161 (1) EA, which does not limit the procedure to the type of examination which is being carried out.

(iii)       Although an application for the leave of the court for the witness to refresh his memory is not expressly required, this is clearly implied by the reference to the court's determination of whether the conditions of the EA have been complied with. Compliance with these conditions does not automatically entitle the witness to refresh his memory. The court must be satisfied that the witness needs to refresh his memory and that this procedure is necessary to adduce relevant evidence. When a party examining his own witness attempts to invoke s 161 EA to refresh the memory of that witness, the basic premise, apart from the conditions set out in s 161 EA, is that his memory has faded; causing him to forget certain details about the evidence he intends to give. The witness is allowed to refresh his memory because a witness should not suffer from an unintended mistake, and may explain an inconsistency. Where he testifies to facts mentioned in the document referred to under s 161 EA, provided he accepts that the facts were correctly recorded, these facts become his testimony: s 162 EA. (see Yuen Chun Yii v PP [1997] 2 SLR(R) 209 at [21]-[23])

(iv)       Where a witness refers to a document for the purpose of refreshing his memory, he may give evidence concerning the facts in that document even though he does not remember those facts, subject to the requirement that he is certain that the facts were correctly recorded in the agreement. This is provided by s 162 EA, which states: 'A witness may also testify to facts mentioned in any such document as is mentioned in s 161 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.' This section offers an additional ground on which the witness may be allowed to refresh his memory. The other grounds are contained in s 161 (1) and 161 (2) EA. The rationale of s 162, as the Illustration below shows, is the witness's conviction that the facts, if not remembered, were correctly recorded. The Illustration is as follows: 'A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.’

(v)       If a witness is permitted to refresh his memory in court and refers to a document for this purpose, the opposing party may require that it be shown to him. Furthermore, the opposing party may cross-examine the witness on that document. This requirement ensures that the opposing party has a full opportunity to test and challenge the document which the witness seeks to rely on for the purpose of refreshing his memory. If this is the opposing party's intention, he should make a formal objection. The court may then hear submissions on whether the conditions for refreshing the witness's memory have been fulfilled before deciding on whether the witness should be allowed to do so. S 163 EA states specifically as follows: 'Any writing referred to under s 161 or 162 must be produced and shown to the adverse party if he requires it; such party may cross-examine the witness thereupon.'

(vi)       The decision to cross-examine a witness on a document used to refresh his memory is a significant one, for in such an event the statements in that document may become substantive evidence in the case. S 147(4) EA states: 'Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those proceedings.' S 147(5) EA adds: 'Where a document or any part of a document is received in evidence by virtue of subsection (4), any statement made in that document or part by the person using the document to refresh his memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.' The position is endorsed by s 259(l)(a) CPC, which expressly refers to statements admissible pursuant to s 147 EA.

(vii)       A relevant example given in the book states as follows:

“A    witness refreshing his memory from his own notes.

Q.    When did you meet Mr Wong?

A.    The next day.

Q.    Where did you meet him?

A.    At the Milton Hotel.

Q.    What time did you meet him?

A.    About 9 am.

Q.    What did you do when you met him?

A.     I know that we visited Mr Lim and Mr Song but I cannot remember whether we did this in the morning or the afternoon.

Q.     Is there anything that would refresh your memory?

A.     Yes, I made a note that day which indicates the times of the appointments.

Advocate to judge: 'Your Honour, may the witness refer to his note to refresh his memory?'

The advocate will need to establish that the note satisfies the requirements of the applicable sections.

Judge:      'Yes.'

Q.     Please, would you refer to your memorandum and read from it.

The witness reads from memorandum.” (emphasis added)

(b)     Applying the above legal principles to the present case, it was clear to me that:

(i)       The refreshing of a witness's memory can occur during any stage of examination, whether it be EIC, XE, or RE, and it can be initiated by either the party who called the witness or the opposing party. In the present case, there was no objection from the Defence to the manner in which PW22 Gobikrishna was referred to his statement by the Prosecution during EIC at trial. The trial evidence indicated that PW22's memory had faded, causing him to forget certain details about the evidence he intended to provide. As such, the Prosecution’s action of referring PW22 to his statement was appropriate to help him recall the facts accurately.

(ii)       It is not necessary for the document used to refresh memory to be admissible in evidence and the Prosecution did not seek for it to be admitted.

(iii)       The statement had been given to the Defence as required by s 163 EA which did not object to the use by PW22 to refresh his memory.

(iv)       As PW22 had testified to the facts mentioned in the statement and accepted that the facts were correctly recorded even though he appeared not to remember those facts, these facts became his testimony.

(v)       As the EIC of PW22 had ended, it is now open to the Defence to cross-examine PW22 on the statement used to refresh his memory and the statement or any part thereof may then become substantive evidence in the present case as provided in s 147(4) EA, and under s147(5) EA, when the statement or any part thereof is received in evidence by virtue of s 147(4) EA, any statement made in that document or part by PW22 using the document to refresh his memory shall by virtue of s147(5) EA be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. The position is endorsed by s 259(l)(a) CPC, which expressly refers to statements admissible pursuant to s 147 EA as an exception to s 259 CPC which provides that: “ Any statement made by a person other than the accused in the course of any investigation by any law enforcement agency is inadmissible in evidence….”

(c)     In this regard, I rejected the following BJ’s submissions :

(i)       S 259(1) CPC makes it very clear that any statement made by a witness in course of police investigation is inadmissible, but a statement admitted under s 147 EA can be an exception to s 259(1) CPC without any impeachment proceedings under s 157 EA. The Defence reliance on the case of PP v BAU [2016] 5 SLR 146 is misconceived as that case is clearly distinguishable from the present case as despite the Prosecution’s successful application under s 161 EA in that case to adduce two statements the victim had given to the police to refresh her memory, the victim had declined to read the contents of the statements which were produced. Further, when the Prosecution then successfully applied to cross-examine the victim under s 156 EA, the victim also declined to give meaningful evidence as she had stated that she could not remember the event and could not remember telling certain persons about any sexual misconduct by the offender. Moreover, with the victim recanting her accusations, the Prosecution’s case was considerably weakened and s 147(6) was not of much help.

(ii)       If the statement of a witness is inadmissible, references to the contents of the statement should be equally inadmissible as the only purpose of s 161 EA is to allow a witness who says he cannot now remember an event due to passage of time, to refresh his memory from an account he gave in a document nearer in time and when his memory is fresh, and does not operate as a gateway to substitute what the witness had forgotten with what the witness said in an earlier document.

(iii)       It is illegal to try to substitute the contents of the statement for the evidence of the witness who is unable to remember.

(iv)       In Sebastian v PP [1970] SGHC 4 , the High Court held that there was no rule that a witness should not refresh his memory from his former statement to the police. Anything in the nature of coaching would, however, be reprehensible. The value to be attached to the evidence of a witness who had had his memory refreshed would depend on the circumstances of the particular case, since there was a likelihood that the witness would depose to what was contained in his previous statement rather than to what he actually recollected about what he had previously said. There was also the danger that a witness, who had refreshed his memory from his previous statement, might feel obliged to adhere to his previous statement even if he no longer believed it to be true. In my view, the Defence reliance on the aforesaid High Court case is also misconceived as there was no trial evidence that PW22 had deposed to what was contained in his previous statement rather than to what he actually recollected about what he had previously said, or that he had felt obliged to adhere to his previous statement even if he no longer believed it to be true.

(d)     I agreed with the Prosecution that it would appear from the above example given in the book that the EA does not prescribe how exactly the witness is to be referred to his writing or stipulate a bar against the witness being pointed orally to specific portions of his writing by reading out portions of his writing. There is also no authority for the proposition that the witness must “refer” to any writing in silence.

(e)     In the light of the above legal principles on refreshing of memory, I accepted the Prosecution submissions that :

(i)       There is no bar to a witness being orally referred to a specific portion of his writing or referred to the writing in silence based on 161 and s 162 EA as it appears from s 162 EA that referring a witness orally to a specific portion of his writing is required to give effect to that section.

(ii)       The core principle behind allowing witnesses to refresh their memory is that testimony in court should be assessed based on the credibility of the witness and not merely his ability to recall details. Memory can be fallible, especially when significant time has passed between the events in question and the witness's testimony. Courts recognize that human memory is not infallible and can degrade over time. The case of Jagatheesan s/o Krishnasamy [2006] 4 SLR(R) 45 at [82] illustrated that courts consider the natural decline in memory when evaluating the reliability of testimony. This is particularly relevant when there is a considerable gap between the events in question and the testimony provided, as is the case with PW22, whose statement was recorded 7 years after incidents that occurred 10 to 13 years ago. If a witness is not referred to specific portions of their prior statement, especially in cases where the statement is long or complex, it may lead to confusion and can hinder the court's ability to determine the truth, as the witness might struggle to recall details accurately without assistance. By orally referring a witness to specific portions of their writing, particularly when the writing is extensive, the court ensures that the witness can accurately recall and confirm the facts. This practice supports the court's goal of determining the truth, rather than merely testing the witness's memory. As the Court of Appeal had previously cautioned in Lim Hong Yap v PP [1977-1978] SLR(R) 262 at [20] as follows:

‘Testimony in the witness box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.’

‘Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.’

(iii)       The Defence’s application to expunge portions of PW22’s testimony is based on an overly technical and artificial distinction that does not serve the interests of justice. The court’s primary focus must be on ensuring that the witness’s testimony is accurate and truthful, which can be achieved by allowing the witness to be referred to their previous writings, whether read aloud by the witness or the examiner. Any concerns of prejudice can be addressed through the Defence’s opportunity to cross-examine the witness. Therefore, I rejected the Defence’s aforesaid application to expunge as there is no substantive difference between a witness reading their statement aloud and an examiner reading the statement to the witness. If the witness were to read the statement aloud and affirm its contents, it would be acceptable. Therefore, it is illogical to deem it objectionable when the examiner read it aloud. The ultimate goal is the same: to ensure the witness can accurately recall and affirm the facts. The Defence application introduces a contradiction by suggesting that different rules should apply depending on whether the process occurs during EIC or XE. During XE, it is common practice for the questioner to read out portions of the witness’s previous writings to challenge or confirm the witness’s testimony. Applying a different standard during EIC is without basis and would result in an absurd outcome—where identical actions are treated differently depending on the stage of the examination. Any potential prejudice to the Defence can be adequately addressed through cross-examination. The Defence was provided ample opportunity to challenge the witness’s testimony, including the accuracy and reliability of the previous writings being referred to. This opportunity mitigates any concern that the witness’s testimony might unfairly favor one side. The primary purpose of a court’s inquiry is to uncover the truth which is best achieved by allowing a witness to be referred to their previous written statements, ensuring he can provide accurate and clarified testimony. The process of reading aloud—whether by the witness or the examiner—facilitates this truth-finding mission by helping the witness accurately recall and confirm the details of their prior statements. As cautioned by the Court of Appeal in Lim Hong Yap v PP [1977-1978] SLR(R) 262 at [20] as follows:

“The courts, however must take care not to deprive themselves by new, artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow on a matter of practice the lure of the rules of logic in order to produce unreasonable results which would hinder the course of justice.” (emphasis added)

(iv)       Given that all the necessary requirements under s 161 EA have been satisfied, there is no legal basis to expunge any portion of PW22’s testimony. He needed to refresh his memory due to the lapse of time and his evidence should remain intact, as PW22 had stated that it represents a truthful and accurate account of the events to the best of his knowledge, and corroborated by his contemporaneous statement. Therefore, I rejected the Defence application for expungement and PW22’s testimony was allowed to stand.

(v)       As pointed out by the Prosecution, the Prosecution is not attempting to admit questions and answers from PW22's statement in his absence. PW22 was present and provided clarification during both EIC and XE, thereby ensuring his evidence was properly scrutinized in court. PW22 has unequivocally stated that the answers he was referred to during his testimony are indeed his evidence at this trial which should not be disregarded, as the Defence has requested. The Defence’s failure to raise objections earlier suggests that the Defence did not view the process as procedurally flawed at the time, and their current application to discard portions of the testimony appears to be a belated attempt to challenge the evidence retrospectively. Allowing the Defence to do so could indeed result in an unfair advantage, offering them a second opportunity to reshape the case after having already missed the proper chance to object. The Court must remain focused on the overall credibility of PW22 as a witness, rather than on minor procedural issues. The emphasis on procedural technicalities could detract from a full examination of the truthfulness of PW22's account, especially given his long-standing interactions with BJ since 2010, which are crucial for establishing context and intent. By considering the entirety of PW22’s testimony, the Court will be able to properly assess the facts without being sidetracked by an overly narrow focus on specific objections that could have been addressed earlier. In fact, when BJ’s counsel was expressly asked on his views on the refreshing of PW22 before the commencement of the refreshing process, he stated that this was “between the learned prosecutor and the witness”.[note: 9]

(vi)       For all the above reasons, I agreed with the Prosecution that PW22 had clearly stated his position on the evidence, and the procedure used to refresh his memory was correct and in compliance with proper legal procedures. The Defence should now proceed to cross-examine PW22 and make submissions regarding the weight of his evidence. I specifically rejected the Defence’s arguments that references to the contents of PW22’s statement are inadmissible merely because the statement itself is inadmissible under s 259(1) CPC. Additionally, I found no merit in the Defence's claim that the manner in which PW22’s attention was directed to the contents of the statement during EIC constituted a leading question that violated s 144 EA.

(V) Whether PW24 Zulkarnain should be allowed to testify as a Prosecution witness and whether his testimony should be admitted in evidence as part of the Prosecution’s case ?

(a)     Our criminal justice system is based on the adversarial system the features of which Jeffrey Pinsler SC in his book “Evidence and the Litigation Process Seventh Edition” stated at [1.036] to [1.037] as follows (emphasis mine):

“…the 'adversarial' process is defined by the more active role of the parties, who must take the responsibility of investigating the facts and of ensuring that their respective cases are comprehensively and effectively prepared for, and presented at, trial…

Unlike the inquisitorial system, it is not for the judge in the adversarial trial to dictate to the parties how their cases should be presented at trial. He does not take a leading role in the examination of witnesses. He does not, as a general rule, require that specific persons testify or order that particular documents be produced if this would be against the parties' wishes. The function of the judge is to assess the relative merits of the parties' cases in the state that they are presented to him. He will generally not interfere with the manner in which a party conducts his case as long as the appropriate trial procedures and rules of evidence are complied with….

(b)     In the present case, after reviewing the written submissions from the parties, I agreed with the Prosecution that the procedures outlined in the CPC for issuing the s 231 notice regarding PW24 were properly followed. The notice was sufficiently broad to provide the Defence with adequate information about the scope of PW24 Zulkarnain's evidence, which was to address the involvement of BJ and Sufandi. This notice served as a proper outline of PW24 Zulkarnain's evidence, in accordance with s 231 CPC. Additionally, the proposed conditioned statement of PW24 Zulkarnain was provided to the Defence with sufficient time for them to prepare for and conduct cross-examination. Thus, the requirements of s 231 CPC were met, and the Defence was given adequate notice and opportunity to challenge PW24 Zulkarnain's evidence.

(c)     Given that the procedures outlined in the CPC for issuing the s 231 notice regarding PW24 Zulkarnain have been properly followed, I took the view that this Court should not interfere with the Prosecution's decision on which witnesses to call. The Prosecution, as per our adversarial system (as defined in the above book), has the discretion to determine which witnesses will be called based on their assessment of the evidence presented at trial. This decision includes whether PW24 Zulkarnain should be called to address issues raised by BJ during his XE of PW20 Hong. Both parties initially agreed to the use of a proposed conditioned statement for PW24 Zulkarnain’s EIC. The Prosecution has argued that PW24 Zulkarnain's proposed testimony is relevant to rebut BJ's assertions about the unreliability of Sufandi's CAD statements as put forward during the XE of PW20 Hong. Allowing PW24 Zulkarnain to testify would ensure that the Prosecution has the opportunity to provide evidence that corroborates Sufandi's CAD statements and addresses any potential gaps in its case. Thus, I agreed with the Prosecution's position that PW24 Zulkarnain should be allowed to testify to provide a complete account of his involvement with Sufandi and BJ. This would include detailing what he was told, what he was expected to do and what he actually did. Such testimony is essential for the Court to assess his credibility and properly weigh his evidence.

(d)     For the above reasons, I rejected BJ’s submissions on :

(i)       a preliminary objection under s 231(2) CPC that a plain reading of PW24 Zulkarnain’s role indicates that he would be giving evidence that relates to the Saraca and Woodgrove properties, but his proposed conditioned Statement covers matters relating to the Limbok property, which is subject matter of a stood down charge;

(ii)       the proposed conditioned statement does not cover the issues raised in BJ’s XE of PW20 Hong; and

(iii)       PW24 Zulkarnain’s evidence is not relevant in this trial as he is not involved in the subject matter properties and his evidence does not assist in the determination of the issues and relevant facts concerning the proceeded charges.

(e)     As parties have agreed to PW24 Zulkarnain’s use of the proposed conditioned statement, I allowed PW24 Zulkarnain to testify using the conditioned statement as his EIC and be subject to XE by the Defence. Thereafter, PW24 Zulkarnain’s evidence would form part of the Prosecution’s case.

(f)     As regards whether all or any parts of PW24 Zulkarnain’s evidence should be allowed or prohibited as similar fact evidence, or be allowed as corroborative evidence which have been addressed in the submissions of the parties, I took the view that it is premature at this stage to decide on these legal issues, but the parties are free to submit on these legal issues after the conclusion of the trial for the court’s consideration and decision.

(E)   CLOSE OF THE PROSECUTION’S CASE & DEFENCE SUBMISSION OF NO CASE TO ANSWER

6       At the close of the Prosecution’s case, the APs made a Defence submission on no case to answer (NCTA) and all parties filed their written submissions on the NCTA submission for my consideration, except for Sufandi who had filed no written submissions and later confirmed at the hearing on 4 October 2023 that he would withdraw his NCTA submission. Having carefully considered and on my assessment and sifting of the various arguments and submissions made by all parties in the light of the evidence adduced at the close of the Prosecution’s case and the applicable caselaw[note: 10] governing a Defence NCTA submission at the close of the Prosecution’s case under s 230(1)(j) CPC, as well as the caselaw on cheating[note: 11] and conspiracy[note: 12], I dismissed the Defence NCTA submission as I agreed with the Prosecution that it has adduced sufficient evidence of the APs’ conspiracy to cheat Maybank, dishonestly use as genuine forged documents, as well as to fraudulently execute a deed of transfer in respect of the properties at Saraca Terrace and Woodgrove Walk. The detailed reasons are set out in the Prosecution’s submissions and I shall simply highlight the key points and explain why I rejected the Defence NCTA submissions.

Saraca Terrace

(a)     For the Saraca Terrace, the Prosecution had cited and relied on various parts of Sufandi’s CAD statements[note: 13] which contained direct evidence of the conspiracy concerning Saraca Terrace. Sufandi gave evidence that there was a scheme between BJ, Kok and himself on inflating the selling price of Saraca Terrace, in order for the sellers to give a cashback to the buyers. Further, pursuant to this scheme, forged income documents were prepared and submitted to Maybank in PW4 Naseeruddin’s name, in order to induce Maybank into giving a mortgage loan. Sufandi’s account is consistent with the evidence of the Prosecution’s witnesses (PW1 Yeo Ming Joo, PW2 Lim You En, PW3 Koh Jin Min Adrian, PW4 Naseeruddin(PW4), PW8 Wong Jing Ling Jerlyn, PW10 Leow Kwee Far Dorothy and PW12 Tay Han Liang, as well as the contemporaneous documentary evidence[note: 14]. The evidence of all the other parties involved[note: 15] in the sale of Saraca Terrace – being the sellers, their agent, Naseeruddin (the buyer), as well as the representatives of Maybank– all show that their actions were coordinated beforehand at the behest of Sufandi, Kok and BJ, with the eventual goal of cheating Maybank into disbursing the mortgage loan.

(b)     I disagreed with BJ’s submissions that there is no evidence to satisfy each of the 3 charges preferred against BJ for Saraca Terrace as the allegations in Sufandi’s CAD statements are inherently incredible because they have been denied or contradicted by Sufandi himself with confirmation provided by PW20 IO Hong herself that the only information source that she had was from Sufandi’s own statements. BJ’s reliance on the case of of Er Joo Nguang v PP is misconceived as case law is clear that conspiracy is proven generally as a matter of inference based on words and actions of the parties which indicate their concert in pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand[note: 16], and it suffices to show the parties’ awareness of the general purpose of the plot, or an agreement in principle to carry out the common design[note: 17], with no requirement to prove a physical meeting of the conspirators; that the conspirators remained in each other’s company throughout or at all; communication between each conspirator and every other; or that the conspirators knew all the details of the unlawful plot[note: 18]. Further, as held in Haw Tua Tau, at the close of Prosecution’s case, the Court must keep an open mind about the veracity and accuracy of recollection of any individual witness, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been confirmed, explained or contradicted by the evidence of other witnesses, and evidence may be rejected at this stage as being “inherently incredible” only if “no reasonable person would accept it as being true. I found that Sufandi’s evidence in his CAD statements which is not the only evidence against BJ is not “inherently incredible” that “no reasonable person would accept it as being true” as it is consistent with the evidence of the various parties involved in the purchase of Saraca Terrace where the combination of their various actions proves that each of their individual acts were coordinated beforehand and designed to achieve the overall aim of cheating Maybank. In my view, the Defence must be called so that Sufandi and BJ as his co-AP can testify and Sufandi can explain his statements and BJ can also explain his case and cross-examine Sufandi on the truth or otherwise of his CAD statements.

(c)     I rejected Kok’s submissions that no evidence has been adduced by the Prosecution to satisfy the each of the 3 charges preferred against him for Saraca Terrace that, if left unrebutted, would warrant his conviction as Kok’s submissions have totally ignored the direct evidence from Sufandi as contained in his CAD statements of the conspiracy to cheat Maybank and to use as genuine forged income documents of PW4 Naseeruddin, and that Sufandi’s evidence is consistent with the evidence of the various parties involved in the purchase of Saraca Terrace where the combination of their various actions proves that each of their individual acts were coordinated beforehand and designed to achieve the overall aim of cheating Maybank. At the close of the Prosecution’s case, there was evidence consistent with Sufandi’s CAD statements concerning the Greenwich V meeting and Kok’s involvement in the collection of cashback from the seller to show that Kok was involved in the sale of Saraca Terrace as he had explained the cashback scheme to the seller and his agent, and $300,000 cashback was given to Sufandi and Kok by the seller after Kok demanded it, telling him that Saraca Terrace was only worth $2m. In my view, the Defence must be called so that Sufandi and Kok as his co-AP can testify and Sufandi can explain his statements and Kok can also explain his case and cross-examine Sufandi on the truth or otherwise of his CAD statements.

Woodgrove Walk

(d)     As for Woodgrove Walk, the Prosecution had cited and relied on various parts of Sufandi’s CAD statements[note: 19] as well as Juma’at’s statements[note: 20] which contain direct evidence of the conspiracy concerning Woodgrove Walk as Sufandi had given a comprehensive account of the role and involvement of all the conspirators in Woodgrove Walk. Sufandi’s account of the conspiracies is consistent with the evidence of the Prosecution’s witnesses[note: 21] and the documentary evidence[note: 22].

(e)     I disagreed with BJ’s submissions that there is no evidence to satisfy each of the 4 charges preferred against BJ for Woodgrove Walk as the allegations in Sufandi’s CAD statements are inherently incredible because they have been denied or contradicted by Sufandi himself with confirmation provided by PW20 IO Hong herself that the only information source that she had was from Sufandi’s own statements. In this regard, as held in Haw Tua Tau, at the close of Prosecution’s case, the Court must keep an open mind about the veracity and accuracy of recollection of any individual witness, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been confirmed, explained or contradicted by the evidence of other witnesses, and evidence may be rejected at this stage as being “inherently incredible” only if “no reasonable person would accept it as being true. I found that Sufandi’s account in his CAD statements which is not the only evidence against BJ is clearly not inherently incredible as he has himself explained the reason for his change in position in his statements which was because Sufandi found out, upon his release from prison that BJ did not keep his promise of taking care of Sufandi’s family whilst he was in prison, and his account of the conspiracy in his CAD statements is also consistent with the evidence of the Prosecution witnesses and documentary evidence adduced. In my view, the Defence must be called so that Sufandi and BJ as his co-AP can testify and Sufandi can explain his statements and BJ can also explain his case and cross-examine Sufandi on the truth or otherwise of his statements.

(f)     There was evidence to show that BJ received $464,000 from the funds that Maybank was cheated into delivering to the buyer. This sum was paid by the sellers out of the money they received from Maybank on completion of the sale of Woodgrove Walk. The payment was made via a cheque dated October 9, 2014, paid to Evergreen Builders & Security Pte Ltd (“EBS”), followed by a cash cheque issued by EBS on 13 October 2014, which BJ, as one of the authorized signatories of the bank account, deposited into his UOB account on the same day. There was also evidence of a meeting at Greenwich V where BJ and Sufandi discussed arranging a "cash back" from the seller in relation to a transaction at 2 Limbok Terrace. Sufandi mentioned that Woodgrove Walk was purchased using a similar method, indicating BJ's involvement. BJ had disclosed to PW22 Gobi, the son of another authorized signatory of EBS, that he was involved in a "property scam." BJ then brought Gobi to a property, possibly Saraca or Mimosa, and asked him to prepare a quotation using a method similar to that used for extracting proceeds from the Woodgrove Walk transaction. The aforesaid evidence collectively showed that BJ was linked to the conspiracies related to Woodgrove Walk and was not solely implicated by Sufandi's statement, as contended by BJ.[note: 23]

(g)     For all the above reasons, I found that at the close of the Prosecution’s case, there is some evidence which is not inherently incredible and which satisfies each and every element of each of the charges preferred respectively against the APs. Therefore I called on each of the APs to give their respective defences as required under s 230(1)(j) CPC, and each elected to give evidence in his own defence with no other witnesses.

(II)    MAIN TRIAL [note: 24]

(F)   WHETHER THE PRESENT CHARGES ARE DEFECTIVE

7       BJ alone had raised the issue of defective charges and contended[note: 25] that the present charges as framed by the Prosecution are defective which, after consideration of the submissions of BJ[note: 26] and the Prosecution[note: 27], I rejected BJ’s contentions on the following grounds:

(a)     There is some ambiguity regarding the nature of the charges and whether the APs are being charged for criminal conspiracy under s 120A PC or for abetment by conspiracy under s 109 PC. The ambiguity arises from the wording of some of the charges which either state that the accused "did engage in a conspiracy" or "did abet by engaging in a conspiracy." This inconsistency makes it difficult for the APs to mount a proper defence.[note: 28] I disagreed with BJ’s aforesaid arguments as I shared the Prosecution’s view that the Prosecution has consistently referenced s109 PC in all the charges and this reference is explicitly included at the bottom of all charge sheets, clarifying that the charges pertain to abetment by conspiracy. The Prosecution's Opening Statement further clarified the nature of the charges, specifically stating that the accused "abetted by engaging in a conspiracy." BJ's defence has been conducted on the understanding that the charges are for abetment by conspiracy which is evident from BJ's submissions for his NCTA application, where he cited relevant legal provisions in ss 107 and 109 PC and referenced the case of Er Joo Nguang v PP as being instructive on the law of abetment by conspiracy. Hence, there is no ambiguity in the charges and it is clear that they are framed under s 109 PC for abetment by conspiracy, and BJ was fully aware of the nature of the charges, enabling him to mount an appropriate defence.

(b)     On the issue raised by BJ of the identification of the principal offender (the "actor") and the abettor in the charges of abetment by conspiracy[note: 29], the case of Er Joo Nguang established that under s 107(b) PC, which deals with abetment by conspiracy, there is no requirement to specifically identify the principal offender and the abettor. If two individuals agree to commit a substantive offence and one acts in furtherance of the conspiracy, both can be charged with abetting each other by conspiracy to commit that offence. Given this legal position, the Prosecution is not required to distinguish who the "actor" or principal offender is, and who the abettor is. The focus of the charges is on the agreement to commit the offence and the actions taken in furtherance of that conspiracy. The Prosecution has presented evidence that focuses on the roles and responsibilities of each AP involved in the conspiracy which is crucial in establishing their respective participation in the conspiracy, regardless of whether one is the principal offender or the abettor, as set out below:

(i)       Sufandi had submitted the loan documents to Maybank[note: 30] for both Saraca Terrace and Woodgrove Walk. Evidence from Sufandi’s CAD statements indicated that he controlled the email addresses from which the forged documents were sent to Maybank[note: 31] and he also admitted to sending the forged income documents to Maybank for both properties.

(ii)       BJ's role[note: 32] involved financing the cashback scheme by providing the necessary funds before completion and he also collected the cashback sums from the sellers after completion.

(iii)       Kok liaised with the sellers for Saraca Terrace, persuaded PW1 Yeo to state a higher price on the OTP than the actual agreed sale price, collected a cashback sum of $300,000 from PW1 Yeo after completion, and liaised with Angela Veronica, the buyer’s conveyancing secretary. [note: 33]

Given the aforesaid roles, it was evident that each individual had a part to play in the overall conspiracy. Therefore, even without specifying who the "actor" and who the abettor is, the Prosecution has delineated the respective roles and responsibilities of Sufandi, BJ and Kok involved in the conspiracy for Saraca Terrace, providing a clear picture of their involvement in the offences which form the charges preferred respectively against each of them.

(c)     I rejected BJ's arguments[note: 34] that the charges failed to clearly specify whether the act committed in pursuance of the conspiracy was the act of cheating under s 420 PC or merely the submission of forged documents s 471 PC. I agreed with the Prosecution[note: 35] that the charges have sufficiently detailed the acts committed in pursuance of the conspiracy. For the Saraca Property, BJ is charged with causing the submission of false IRAS Notice of Assessment and false CPF statement in the name of PW4 Naseeruddin to the bank. These forged documents deceived the bank into believing that PW4 Naseeruddin had an annual income of $310,300 in 2013, leading to the dishonest inducement of the bank into approving and delivering a mortgage loan to him. As regards Woodgrove Property, BJ is charged with causing the submission of similar false documents in the name of PW16 Iswandi to the bank. These documents deceived the bank into believing that PW16 Iswandi had an annual income of $471,600 in 2014, leading to the dishonest inducement of the bank into approving and delivering a mortgage loan to him. In both instances, it is clear that Maybank was cheated into delivering mortgage loans to PW4 Naseeruddin and PW16 Iswandi due to the deception created by the submission of forged income documents by Sufandi. The charges under s 471 PC, which pertain to using forged documents as genuine, have also been properly particularized. These charges detail the use of the forged income documents and the manner in which they were submitted to Maybank as part of the loan application process.

(d)     BJ had raised the issue of alleged duplicity[note: 36] of the charges under ss 420 and 471 PC because the forged documents are the subject-matter of two charges: one under s 420 PC charge, as well as a corresponding s 471 PC charge for the usage of the forged documents, and whether these charges contravene s 40[note: 37] of the Interpretation Act 1965 (“IA”) which prohibits a person from being punished twice for the same offence. I agreed with the Prosecution[note: 38] that s 135[note: 39] CPC allows the Prosecution to frame multiple charges arising from one act or conduct. Specifically, Illustration (d) [note: 40] of s 135 CPC clarifies that in relation to the same act of using a forged document, a person can be prosecuted and convicted under both ss 196 and 471 PC. S 40 of the IA also does not prohibit the Prosecution from framing multiple charges arising from the same act. In my view, the charges under ss 420 and 471 PC are not considered duplicitous as they pertain to different aspects of the same conduct. S 420 PC deals with cheating by deceiving, while s 471 PC deals with using a forged document as genuine. Both charges target distinct legal elements of the same overall criminal conduct. As the legal provisions in both the CPC and the IA allow for the framing of multiple charges arising from the same act or conduct, I took the view that the Prosecution was within its rights to charge BJ and his co-APs under both ss 420 and 471 PC for the same act involving the use of a forged document.

(e)     In Tan Khee Koon v PP [1995] 3 SLR(R) 404 at [104], the High Court held that as the effect of s 40 of the IA was that while the same set of facts may establish liability under two or more written laws, there cannot be double punishment for the same offence which meant two or more offences with the same essential ingredients. In PP v Merlur Binte Ahmad [2022] SGDC 301 at [81] to [82], the District Court applied the aforesaid High Court case and rejected the defence argument that the offence of removal of property from jurisdiction under s 47(2)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) must necessarily involve an element of possession under s 47(3) of the CDSA and thus, if the offender were convicted for both the possession as well as removal charges, the former would be duplicitous. The Court reasoned[note: 41] as follows:

“....In my view, the essential ingredients of the possession and removal offences were separate and distinct. In particular, I concurred with the prosecution’s submissions that possession of property was not a necessary ingredient for an offence of removing property out of jurisdiction. This was clearly illustrated by the example given by the prosecution of a person performing an online banking transaction on behalf of another person to transfer the money in the latter’s bank account out of jurisdiction. Thus, the fact that the Accused was in possession of the property prior to her effecting its removal from jurisdiction would not, in my view, prohibit the prosecution from proceeding with offences constituted by each criminal act. To me, this was not a case where the Accused was being punished twice in relation to the same offence.” (emphasis mine)

(f)     In the light of the above case authorities, I rejected BJ’s submissions[note: 42] which did not consider the aforesaid highly relevant case authorities. I agreed with the Prosecution[note: 43] that the charges under s 420 PC, in conjunction with s109 PC (which deals with abetment), involve a broader pattern of conduct that indicates a conspiracy to cheat Maybank into approving and delivering loans to PW4 Naseeruddin and PW16 Iswandi. The charges under s 420 encompass more than just the use of forged documents. They involve various actions that point to a conspiracy, such as coordination with others to recruit a dummy buyer; liaising with sellers to inflate prices; giving instructions to law firm staff during the conveyancing process; and facilitating the return of money to conspirators. These actions form part of a broader scheme to deceive Maybank which goes beyond merely submitting forged documents. The charges under s 471 PC specifically target the use of forged income documents in the loan applications. These charges focus on the act of using those documents as genuine, which is a separate legal violation from the broader conspiracy. The essential ingredients of the charges under ss 420 and 471 PC are clearly separate and distinct. While the use of forged income documents is part of the broader conspiracy under the s 420 PC charges, it is not the sole basis for the offence of cheating as defined under s 420 PC which does not require the use of forged documents as a necessary ingredient. As the charges under ss 420 and 471 PC address different ingredients, BJ and his co-accused persons have therefore not been charged and punished twice for the same offence which legally refers to offences with the same essential (and not separate and distinct) ingredients, which is not the case here.

(G)   EVIDENCE & CREDIBILITY OF THE KEY PROSECUTION WITNESSES

8       Based on the ASOF, the Notes of Evidence and other relevant documentary evidence adduced at the trial, the relevant salient facts from the evidence of the Prosecution Witnesses may be summarised as follows:

Saraca Terrace

(a) PW1 Yeo Ming Joo[note: 44] (“Yeo”)

(i)     PW1 Yeo Ming Joo (“Yeo”) and PW2 Lim Yeo En (“Lim”) as the owners of Saraca Terrace, purchased the property in 2010 for about $1.15 million. Their goal was to sell the property for $2 million or more. They engaged PW3 Adrian Koh Jin Min (“Adrian”) to facilitate the sale. Adrian was responsible for marketing the property and finding potential buyers. Despite Adrian's efforts, the property remained unsold for six months. Factors such as noise pollution from the Central Expressway likely contributed to the lack of interest from potential buyers. Adrian eventually introduced Yeo to someone identified as "Andi," who was later revealed to be Sufandi. Sufandi expressed interest in purchasing Saraca Terrace and made an initial offer of $2.9 million.

Despite the seemingly attractive offer, Yeo rejected it. His concerns stemmed from his position as a civil servant and his reluctance to invest the sale proceeds into a proposed company without clear details about his shares, the expected returns, and the potential legal risks associated with the company's activities.

(ii)     After initially rejecting the first offer, Yeo agreed to a second offer for the sale of Saraca Terrace during a meeting at a coffee shop in Greenwich V. This meeting was attended by Yeo, his agent Adrian, Sufandi, and an individual referred to as "Nicholas," later identified as Kok. The sale price for Saraca Terrace was agreed upon at $2.9 million. Despite the sale price, Yeo was informed that he would not receive 19% of the sale proceeds. Specifically, he was not to encash the cheques for the 4% option exercise fee and the 15% downpayment. Instead, Yeo would receive only $2.3 million from the sale. Kok was the one who explained these conditions to Yeo during the meeting, clarifying the specifics of how the sale proceeds would be handled. On 15 March 2014, an OTP was issued by Yeo and Lim to sell Saraca Terrace for $2.9 million. The OTP was in the name of a person called Naseeruddin, with Naseeruddin’s name, address, and NRIC number already filled in on the document that Yeo received. Yeo assumed that "Naseeruddin" was the real legal name of "Andi" (Sufandi), believing them to be the same person. On 15 March 2014, Adrian handed Yeo a post-dated cheque for $29,000, which was issued in Sufandi’s name. Adrian informed Yeo that the cheque could be encashed after 19 March 2014. Before 19 March 2014, Adrian informed Yeo that Sufandi wanted to provide cash instead of using the cheque. Yeo subsequently received $29,000 in cash from Sufandi at Saraca Terrace. After receiving the cash, Yeo scanned the cheque and returned it to Sufandi.

(iii)     Yeo agreed with Sufandi and Kok not to encash the cheques for the 4% option exercise fee ($116,000) dated 23 March 2014 and the 15% downpayment ($435,000) dated 15 April 2014. Both cheques were issued from the OCBC account of LQ Investment, where Sufandi was the registered sole proprietor. These cheques were later seized by the CAD. Yeo informed his solicitors, Matthew Chiong Partnership, that he was not going to encash the cheques. This communication occurred on or before 21 April 2014. In a letter dated 21 April 2014, Matthew Chiong Partnership acknowledged that Yeo had already received 15% of the sale price before the completion of the sale, even though the cheques themselves were not encashed. The sale of Saraca Terrace was completed on 22 April 2014. Around the completion date, Kok visited Saraca Terrace and demanded $300,000 from Yeo, claiming that the property was worth only $2 million. Fearing potential repercussions, such as losing his job or facing harm to his family, Yeo complied with Kok’s demand. On 24 April 2014, Yeo withdrew $299,000 from his Citibank account. The next day, Yeo handed $300,000 to Kok at Saraca Terrace. Kok was accompanied by Sufandi when the payment was made.

(b) PW2 Lim You En[note: 45] (“Lim”)

(i)     Yeo’s wife, Lim testified that she left the handling of the Saraca Terrace sale entirely to her husband. Lim could not remember whether there was an agreement not to encash the 4% option exercise fee cheque and the 15% downpayment cheque.

(ii)     Lim did not recall whether Yeo had informed her about the $299,000 cash withdrawal that was made to pay Kok and also could not remember whether there was any agreement to pay a cashback to the buyer.

(c) PW3 Koh Jin Min Adrian[note: 46] (“Adrian”)

(i)     Adrian testified that he first became acquainted with PW1 Yeo during their National Service. Yeo later engaged Adrian to market and sell Saraca Terrace, which involved listing the property online to attract potential buyers. Adrian noted the difficulties in selling Saraca Terrace, with only about 10 viewings conducted. These challenges were likely due to factors such as the property’s location and possibly its condition or surrounding environment, such as noise pollution from the nearby Central Expressway. Despite the difficulties, Adrian eventually received an offer from a buyer named “Andi,” whom he later identified as Sufandi. This contact was initiated through one of Adrian’s online listings for Saraca Terrace. Following the contact, Adrian arranged a viewing of the property at Sufandi’s request.

(ii)     Sufandi arranged a meeting at a KFC restaurant on the west side of Singapore. During this meeting, Adrian met a "Chinese guy" who introduced himself as Sufandi’s partner. Adrian later identified this individual as Kok. Kok proposed two cashback schemes to Adrian, both of which involved the buyer receiving money back from the seller after the sale of Saraca Terrace. The first scheme involved the sellers signing an IOU with the buyer, agreeing to repay the money owed from the sale proceeds. Essentially, the sellers would acknowledge a debt to the buyer that would be settled from the proceeds of the sale. Under the second scheme, the sellers would invest the sale proceeds into a company, which was part of the cashback scheme. Adrian informed Yeo about the second scheme, which involved investing the sale proceeds into a company, but Yeo rejected it.

(iii)     After Yeo rejected the initial offer made at the KFC meeting, Kok continued to pursue the matter with Adrian. Kok requested Adrian to arrange a direct meeting between himself and Yeo. Adrian arranged a meeting at Greenwich V, which took place in the evening and included Adrian, Yeo, Kok, and Sufandi. This meeting occurred a few days before the Option to Purchase (OTP) dated 15 March 2014 was signed. According to Adrian, the meeting was brief, lasting about 10 minutes. Adrian was on a phone call during the meeting and did not know what was discussed among Yeo, Kok, and Sufandi.

(iv)     According to Adrian, Yeo received a post-dated cheque dated 19 March 2014 from Sufandi on 15 March 2014 and was instructed to encash the cheque on or after 19 March 2014.

(d) PW4 Mohammad Naseeruddin bin Allamdin[note: 47](“Naseeruddin”)

(i)     Naseeruddin who had identified Sufandi at the trial agreed to act as a "dummy buyer" for Saraca Terrace as proposed by Sufandi. Sufandi promised Naseeruddin $60,000 for his participation in the scheme. Naseeruddin was instructed to lend his name to the transaction, sign the necessary conveyancing documents, and apply for a mortgage loan with Maybank. He was not required to pay anything for the house being bought in his name. Following Sufandi's instructions, Naseeruddin visited the Maybank branch at North Bridge Road on 7 April 2014. He signed the Mortgage Facility Letter for a mortgage loan amounting to $2,320,000 for Saraca Terrace. Naseeruddin also went to Lutfi Law Corporation ("Lutfi Law") to execute and sign the Land Titles Act Mortgage Instrument. After the completion of the purchase of Saraca Terrace, Naseeruddin received $40,000 in cash from Sufandi, which was less than the $60,000 initially promised.

(ii)     Naseeruddin did not directly correspond with any bank officer or sign the Maybank Mortgage Loan Application Form himself. Instead, he was instructed by Sufandi to pretend to be working for IGB International Pte Ltd. The Maybank Mortgage Loan Application Form, along with various income documents, was submitted electronically to the bank. These documents included an IRAS Notice of Assessment (NOA) dated 12 June 2013; a CPF Contribution History Statement dated 18 March 2014; Pay statements from IGB International Pte Ltd for the period from November 2013 to February 2014. Naseeruddin testified that all of these documents were false.

(iii)     After discovering from Sufandi that forged income documents were used to secure the mortgage loan in his name, Naseeruddin requested Sufandi for a copy of these documents. His intention was to use the forged documents to obtain additional loans, such as a car loan and a personal loan from HSBC. Naseeruddin admitted to his role in the fraudulent scheme and served prison time for obtaining additional loans using the same forged documents. As pointed out by the Prosecution[note: 48], there is no apparent ulterior motive for Naseeruddin to falsely implicate Sufandi given that Naseeruddin has served prison time for related crimes and was aware of the forged documents used in the mortgage application,

(e) PW5 Fauziah Binte Mohamed Hussain @ Angela Veronica[note: 49] (“Angela Veronica”)

(i)     Angela Veronica, a conveyancing secretary at Lutfi Law, identified Kok as "Nicholas," a housing agent who had previously referred conveyancing cases to Lutfi Law. Kok referred the Saraca Terrace transaction to Lutfi Law, prompting Angela Veronica to open a file with reference number LUT/7502/03/14/AV (PTE) on 24 March 2014. The file cover page listed "Nicholas" as the agent and included details such as the agency name "Oasis Agent" and a mobile number (xxxx) that Angela used to communicate with Kok. Kok provided Angela Veronica with all the necessary documents and information for the conveyancing process, including the buyer's information; completion period; financing mode; signed OTP; 4% cheque option exercise fee; and the certificate of Buyer's Stamp Duty (BSD), which Kok was responsible for paying. Kok emailed the OTP to Angela Veronica a few days before 25 March 2014. This OTP contained Naseeruddin’s name, address, and phone number (xxxx). The phone number in the OTP matched the one listed in the Maybank Mortgage Loan Application Form.

(ii)     Kok informed Angela Veronica via a phone call that the completion of the Saraca Terrace conveyancing was to occur within four weeks. He specified that the financing for the purchase would be through a mortgage loan from Maybank, and there would be no utilization of the buyer’s CPF funds. Kok communicated to Angela that the buyer, Naseeruddin, was agreeable to incurring additional charges because Lutfi Law was not on Maybank’s panel of solicitors. As a result, another solicitor would need to be appointed by Maybank to handle the mortgage-related aspects of the transaction. Angela Veronica instructed Kok to arrange for Naseeruddin to attend Lutfi Law to sign the Mortgage Instrument. Following this instruction, Naseeruddin complied and attended Lutfi Law to execute the necessary documents.

(iii)     On 24 March 2014, Kok provided Angela Veronica with the signed OTP and the 4% cheque for exercising the OTP. This action allowed Angela Veronica to move forward with the process, ensuring that the OTP was exercised. On 25 March 2014, Angela Veronica forwarded both the original OTP and the 4% cheque to Matthew Chiong Partnership, the solicitors representing the sellers, to formally exercise the OTP. Angela Veronica requested Kok to provide the BSD cheque, which was necessary for the completion of the conveyancing process. Kok assured her that he would deliver the BSD cheque within a few days but failed to do so initially, prompting Angela to follow up. Despite the delay, Kok eventually provided Angela Veronica with a copy of the BSD certificate after paying the BSD.

(iv)     Angela Veronica's testimony that Kok was responsible for paying the BSD is corroborated by the documentary evidence showing Kok's purchase of a cashier's order for $81,600, payable to the Commissioner of Stamp Duties. This payment was made using funds from the Maybank account of Oasis Realtors & Consultant Pte Ltd, a company where Kok was the sole authorized signatory. Angela Veronica contacted Kok to arrange for Naseeruddin to attend Lutfi Law to sign the Mortgage Instrument. Kok was also involved in arrangog for Naseeruddin to signed the mortgage documents. Kok informed Angela Veronica that 15% of the purchase price had been paid and this information was later verified by Angela Veronica through correspondence with Matthew Chiong Partnership, which confirmed that the 15% deposit had indeed been paid before completion, aligning with the agreement among Yeo, Sufandi, and Kok regarding the payment terms.

(f) PW9 Wong Jing Ling Jerlyn[note: 50](“Wong”), PW10 Leow Kwee Far Dorothy[note: 51] (“Dorothy”) & PW12 Tay Han Liang[note: 52] (“Tay”) (Maybank officers), PW8 Tan Poh Geok[note: 53] (“Tan”)(IRAS officer)

(i)     Owing to the submission of forged income documents, Maybank was deceived into approving and disbursing the mortgage loan for Saraca Terrace based on the evidence of Maybank Officer, Wong who had received via email, various forged documents in the form of IGB International Pte Ltd pay statements, CPF Board Contribution History dated 18 March 2014, and IRAS NOA dated 12 June 2013 in relation to the mortgage loan application in the name of Naseeruddin. Trial evidence showed the aforesaid CPF documents were forged as compared to Naseeruddin’s real CPF records which are different from the CPF Board Contribution History submitted to Maybank, and IRAS also did not issue the IRAS NOA dated 12 June 2013 according to Tan.[note: 54]

(ii)     Maybank was dishonestly induced into approving the loan as Maybank took into consideration the false IRAS NOA and CPF Board Contribution History in assessing whether to approve the mortgage loan made in Naseeruddin’s name, and had Maybank known that the submitted IRAS NOA and CPF Board Contribution History were not genuine, it would not have approved the loan, according to the evidence of Dorothy and Tay.[note: 55]

(iii)     Maybank was cheated to approve the mortgage loan, through the submission of forged income documents, and it disbursed $2,320,000.[note: 56]

(g) PW7 Go Theng Theng[note: 57] (“Go”)

Mdm Go who is an IRAS officer testified that the certificate of stamp duty for the Saraca Property was issued on 16 April 2014. The payment slip for the stamp duty was issued on 26 March 2014 and it was paid using a cashier's order. Mdm Go explained that when stamp duty is paid at the service bureau, they ensure that the document to be stamped and the amount to be paid are correct. Regardless of who makes the payment, as long as the document and amount are accurate, the stamp duty is processed. She cannot confirm if the service bureau verified the identity of the person paying the stamp duty at the service bureau.[note: 58]

Woodgrove Walk

(a) Mohamad Hamzi Bin Rabu (deceased) (“Hamzi”)

(i)     Hamzi who had passed away gave statements to the CAD which were admitted pursuant to s 32(1)(j) EA[note: 59]. He had admitted to wrongdoing in his statements to CAD, by misstating the price of Woodgrove Walk on the conveyancing documents, and also admitted to the same facts during his plead guilty hearing where he was sentenced to 12 months’ imprisonment.[note: 60]

(ii)     Hamzi and PW6 Rohana engaged Haron and Juma'at as property agents to sell their property for an original price of $2.4 million. The agents marketed the property using various channels, including newspapers and online platforms. Haron eventually found a buyer but suggested increasing the price stated on the conveyancing documents to $3.55 million to cover purported renovation costs, while still assuring Hamzi that they would receive $2.4 million from the sale. Hamzi agreed to this arrangement. Hamzi and Rohana later met with Juma'at at Woodgrove Walk, where they were given a 1% option fee of $24,000 and signed a blank OTP document. This OTP was subsequently completed with the inflated purchase price of $3.55 million. Hamzi later claimed not to have seen a different version of the OTP presented by the CAD. Despite agreeing to the price mark-up to $3.55 million, Hamzi and Rohana did not receive the expected 19% of the marked-up price, which amounted to $674,500. When their solicitor raised concerns about this discrepancy, Haron assured Hamzi that he would discuss the issue with the lawyer.

(iii)     After the buyer purportedly exercised the OTP, without Hamzi ever meeting the buyer, Haron instructed Hamzi to sign additional documents. These included P52, which was a renovation quotation and a letter of authority to facilitate payment to a renovation contractor, EBS. Although Hamzi had not met the buyer and was only following Haron's instructions, he complied and signed the documents. As the proceeds from the sale of the property were paid directly to Hamzi and Rohana, Haron reminded Rohana to issue a cheque in favour of EBS. Following the completion of the property sale, Hamzi was hospitalized for an operation. During his hospitalization, Haron and Juma'at visited him to collect cash. However, Hamzi asked them to wait until he was discharged to withdraw the money. Subsequently, they agreed to receive a sum of $464,000 via cheque, paid to EBS using funds from Hamzi's father's account.

(iv)     The $7,000 cheque issued to Haron and Juma'at on 9 October 2014 was intended as a commission for their role as property agents in facilitating the sale of the Woodgrove Walk property. This payment was not just a token of appreciation, but a formal commission for their services.

(b) PW6 Rohana Binte Januri[note: 61] (“Rohana”)

(i)     Rohana was fully aware that Haron and Juma'at were acting as their property agents for the sale of the Woodgrove Walk property, where she and Hamzi had lived for about 10 years. She acknowledged that the property was in poor condition with no recent improvement works and understood the need to sell it to cover Hamzi's medical bills and debts. When Haron and Juma'at contacted them to arrange viewings and discuss the sale, Rohana understood that they were representing her and Hamzi as property agents. She confirmed that she and Hamzi usually attended meetings together with Haron and Juma'at and was aware that a commission would be paid to the agents if they found a buyer for the property. Rohana identified her signature on the OTP document (P34) as genuine. However, she mentioned that she had not seen another version of the OTP in P38 and did not recognize the signatures on it as hers or Hamzi's. She was unsure of which portions of P34 were filled in at the time of signing but inferred that Haron or Juma'at likely completed the handwritten portions or made amendments, as the handwriting did not match hers or Hamzi's. Furthermore, Rohana recalled receiving the 1% option fee in cash from either Haron or Juma'at at Woodgrove Walk on the same day they signed P34. Following this, either Haron or both Haron and Juma'at took possession of the OTP.

(ii)     Hamzi and Rohana agreed to a payment of $464,000 to EBS, based on a renovation quotation and a letter of authority they signed. Rohana was not fully aware of the specifics behind this payment but believed it was intended for renovation work after they vacated Woodgrove Walk. This understanding was based on information provided by the agents (either Haron or Juma’at). Rohana was under the impression that Hamzi had already arranged with the agents for both of them to contribute towards the renovation costs, as the property was in poor condition. Furthermore, Hamzi and Rohana never received a sum of $674,500, which was 19% of the sale price of a property.

(iii)     On 7 October 2014, Haron sent a message to Rohana asking her to prepare cashier's orders for several amounts of “$145,712.28 to TAN & JIANG ENTERPRISE PTE. LTD; $464,000 to EVERGREEN BUILDERS & SECURITY PTE LTD; $3,417.50 (inclusive of $350 to UOB n $267.50 to CPF) to RELIANZE LAW CORPORATION; and 0.5% to MOHAMED HARON BIN HASSAN”. Despite these instructions, no cashier's orders were actually prepared based on the message from Haron. However, Haron and Juma’at continued to push Hamzi and Rohana to provide the $464,000 for the renovation. Given that Hamzi was hospitalized at the time, either Haron and Juma’at visited the hospital to collect the cheque. On 9 October 2014, Rohana did issue a cheque, but it was for $7,000 to Haron as commission. This amount was negotiated down due to her financial difficulties, including outstanding loans and the fact that she did not have a house at that time.

(c) PW11 Mohamed Pauzi Ali[note: 62] (“Ali”)

Ali’s evidence was that the DBS Treasures POSB Bank Statement in P44 was forged.[note: 63]

(d) PW14 Kanthosamy Rajendran[note: 64] ("Rajendran")

(i)     Rajendran first met with Haron and Hamzi at his office in Peninsula Plaza in the first week of August 2014 or earlier. They requested Rajendran's assistance in removing a caveat on Woodgrove Walk, which had been lodged by a moneylender, Tan & Jiang, in order to facilitate the sale of the property. Rajendran succeeded in removing the caveat with the consent of Tan & Jiang, allowing the sale process to proceed. On 3 September 2014, Haron informed Rajendran via a phone call that the buyer intended to exercise the option to purchase Woodgrove Walk. Shortly after, Rajendran received an email from Messrs Gopal & Rai, the solicitors representing the buyer, confirming that Rajendran had been appointed to act for the sellers (Hamzi and Rohana). On 12 September 2014, a meeting was held at Rajendran's office, attended by Haron, Hamzi, and Rohana. Juma’at was present but did not enter the conference room. Prior to Rajendran joining the meeting, another lawyer, Mdm Prasanna D/O TV Prabhakaran (PW15), spoke with Haron, Hamzi, and Rohana. Rajendran assumed there were no issues regarding the sum of $674,500, which should have been paid upon exercising the option to purchase. This assumption was based on the presence and apparent agreement of Hamzi and Rohana to proceed with the transaction.

(ii)     During the meeting on 12 September 2014, Hamzi and Rohana executed a Letter of Authority as a statutory declaration, providing instructions for the distribution of the sale proceeds from the sale of the Woodgrove Walk property. The instructions were given to Rajendran, the seller’s solicitor, by Haron and Hamzi, detailing how the proceeds should be allocated. Among the specified payments was a sum of $464,000 to EBS, which was labelled as "renovation expenses." This payment was supported by a quotation provided at document P52, which Rajendran identified as the basis for the $464,000 payment. Despite the preparation of this Letter of Authority and the clear instructions on how the proceeds were to be distributed, Maybank, which was involved in the transaction, refused to disburse the sale proceeds according to the instructions outlined in the Letter of Authority. Maybank insisted that the sale proceeds should only be paid directly to the vendor (Hamzi and Rohana) and not to any other party, such as EBS or other third parties mentioned in the letter. As a result of Maybank's refusal to follow the Letter of Authority's instructions, when the sale was completed on 3 October 2014, the distribution of the proceeds did not occur as initially planned.

(iii)     Rajendran confirmed that the only OTP that he saw was P34. He had not seen another version of the OTP[note: 65], when conducting the conveyance of Woodgrove Walk.

(e) PW15 Prasanna D/O T.V Prabhakaran[note: 66] (“Prasanna”)

Prasanna was present to take notes on behalf of Rajendran, who was not in the meeting initially because he was attending to a court matter. She was there for about 10 minutes before Rajendran returned and took over the meeting. During this time, she documented the discussions and instructions provided by the attendees. She could not recall whether Juma'at was present at the meeting. However, she clearly remembered that Hamzi, Rohana, and Haron were there.

According to Prasanna, the instructions regarding the document in P50 might have originated from Haron. However, Hamzi and Rohana, as the sellers, would also have had to provide confirmation or input regarding this document. Prasanna recalled that the quotation in document P52, which pertained to the $464,000 payment to EBS for "renovation expenses," was provided by Haron. She also confirmed that after the meeting on 12 September 2014, Rohana returned to the office to speak with Rajendran.

(f) PW16 Iswandi Bin Yahya[note: 67] (“Iswandi”)

(i)     Iswandi, who was serving a 24-month imprisonment sentence after pleading guilty to a charge of cheating Maybank under s 420 PC, testified that he was introduced to the scheme by a friend named "Boy," who brought another individual, "Bobby," to meet him. "Bobby" explained that Iswandi could earn quick money by signing papers for renovation or housing loans. Another individual, "Fandi," introduced by "Bobby," further explained the scheme to Iswandi. He was given the choice between a renovation loan or a housing loan. Iswandi chose the housing loan in exchange for a promised payment of $5,000, which would be paid to him by either "Fandi" or "Bobby" after he signed the documents and once the loan was processed and cleared. After his release from the Drug Rehabilitation Centre (“DRC”), "Bobby" contacted Iswandi again to continue with the loan scheme. Iswandi agreed to proceed. "Bobby" arranged a meeting between Iswandi and Maybank officer PW13 Ammar Salim bin Ariff ("Ammar Salim") at a Kopitiam at Lavender MRT. During this meeting, Iswandi signed the Mortgage Facility Letter for a mortgage loan amounting to $2,840,000 for the Woodgrove Walk property. Iswandi admitted that he was aware he was taking out a mortgage loan that he had no intention or ability to repay. He was assured by "Bobby" or "Fandi" that they would take care of the repayment. Iswandi also went to a lawyer’s office in Chinatown, where he executed and signed the Mortgage Instrument.

(ii)     Iswandi stated that he neither filled out nor signed the Maybank Mortgage Loan Application Form. He denied any involvement in the submission of this form to Maybank. The contact number (xxxx), email address (xxxx), employment information, and marital status provided in the loan application form were incorrect and did not belong to him. Iswandi confirmed that he did not submit the loan application form electronically to Maybank. The loan application was accompanied by several documents, purportedly to verify Iswandi's income and financial status, which included an IRAS NOA dated 23 May 2014, a CPF Contribution History Statement dated 15 August 2014, and pay statements of Option Vests Pte Ltd from June to August 2014. Iswandi testified that he had never seen these documents before and that the information they contained was false. He did not provide these documents, and they did not reflect his true financial situation.

(g) PW18 Tay Chye Huat[note: 68] (“Tay”)

(i)     Tay co-founded EBS with BJ, who provided the capital investment necessary to start the business and for the running account of the business. BJ and another individual, Chinaya, were the authorized signatories for the company's bank accounts. Tay agreed to this arrangement because BJ had invested the initial capital. Within EBS, there were distinct divisions for different aspects of the business. Tay was responsible for the CCTV aspect of the business, focusing on security systems and related technology. BJ managed the building aspect, which involved construction and renovation projects. This division of responsibilities meant that their business activities and profits were separate. Tay’s earnings came from the CCTV works, which were his area of responsibility. BJ’s earnings came from the building works. Tay emphasized that the CCTV and building divisions operated independently of each other. He did not interfere in the building projects managed by BJ and BJ did not interfere in the CCTV operations. While Tay was not directly involved in the building works, he acknowledged being aware that EBS was engaged in such projects. EBS became dormant around 2015 due to a lack of work and was formally closed around 2018, with the capital initially provided by BJ returned to him.

(ii)     Tay testified that he was unfamiliar with the source or intended use of the funds referenced in the EBS Quotation in document P52. He first encountered this document during the course of the investigations. Upon reviewing the quotation, Tay identified it as being associated with building and renovation works, which were handled by BJ, his business partner at EBS. When Tay saw the quotation, he sought clarification from BJ regarding its purpose and origin. BJ confirmed to Tay that the quotation pertained to the building division of EBS, which BJ managed. Satisfied with this explanation, Tay did not pursue any further inquiries about the document or the funds mentioned in it.

(h) PW19 Shirley Goh[note: 69] (“Shirley”)

(i)     Shirley, a conveyancing secretary at the law firm of Wong, Gopal, and Rai, testified she had received instructions from one "Fandi" concerning the buyer of the Woodgrove Walk property. On 3 September 2014, "Fandi" provided Shirley with the OTP document in P34. In court, based on an identification via photograph in P68, Shirley stated that it was possible that the person she knew as "Fandi" was Sufandi bin Ahmad. "Fandi" informed Shirley that the buyer, Iswandi, was often busy and travelled overseas frequently. Due to this, he provided Iswandi's email address (xxxx) for communication purposes. Additionally, he gave Shirley his own mobile number (xxxx) as a point of contact. Shirley attempted to contact Iswandi via the provided email address, under the belief that she was corresponding directly with him. However, she often faced challenges in getting a timely response. This lack of direct communication with Iswandi led Shirley to frequently contact "Fandi" for updates and guidance on the transaction.

(ii)     Shirley was informed by "Fandi" that the option exercise fee of $674,500 had been paid directly to the seller. "Fandi" mentioned that this was in accordance with an existing arrangement between the buyer and seller. On 29 September 2014, "Fandi" personally delivered the BSD certificate for the Woodgrove Walk property and three cheques covering legal fees, BSD, and property tax to Shirley at the Wong, Gopal, and Rai office. In her conveyancing file, P81, Shirley recorded various details related to the Woodgrove Walk transaction. This included the client's name, address, and the financial figures relevant to the sale. Although Shirley had no direct connection or communication with Haron, she recorded the names of individuals associated with the transaction in P81, including "Alex/Haron." During XE, Shirley explained that she had believed Haron to be the housing agent involved in the transaction, though she could not precisely recall how she obtained this information.

(i) PW13 Ammar Salim bin Ariff[note: 70] (“Ammar Salim”) & PW10 Leow Kwee Far Dorothy[note: 71] ("Dorothy") (Maybank officers)

(i)     Ammar Salim began communicating with an individual known as "Mr. Iswandi" (contact number: xxxx) in early August 2014 regarding the valuation of a property at Woodgrove Walk. "Mr. Iswandi" asked if Maybank could match a valuation of $3.6 million for the property. Ammar Salim managed to obtain valuations of up to $3.55 million for Woodgrove Walk. On 6 August 2014, he received an email from "Mr. Iswandi" (xxxx) containing the following attached documents: (a) A scanned copy of an NRIC belonging to Iswandi; (b) Various Pay Statements of Option Vests Pte Ltd in relation to Iswandi between June 2014 and August 2014, which stated that he was paid a salary ranging between $36,500 and $38,000 per month; (c) A CPF Contribution History Statement dated 5 August 2014 under the name of Iswandi, which stated that he received $1,800 per month in CPF contributions from his purported employer, Option Vests Pte Ltd; and, (d) An IRAS NOA dated 23 May 2014 under the name of Iswandi which stated that he had an annual income of S$471,600 in 2013.[note: 72]

(ii)     Between 6 and 13 August 2014, Ammar Salim received several emails from "Mr. Iswandi" (xxxx) enclosing the following documents: (a) A signed Maybank mortgage loan application form dated 5 August 2014, which stated that Iswandi has been employed as a Senior Consultant with Option Vests Pte Ltd for a period of four years, as well as the relevant MAS Declaration Form; (b) An IRAS NOA dated 19 June 2013 under the name of Iswandi which stated that Iswandi supposedly had an annual income of $310,900 in 2012; (c) Statements of DBS Treasures POSB Passbook Savings Account bearing xxxx for the months of June 2014 to August 2014; and, (d) Pages 1, 2, 3, 4, of an Option to Purchase, in respect of 1 Woodgrove Walk, granted to Iswandi on 10 August 2014, by the vendors, Rohana and Hamzi. On Page 4, the acceptance copy of the Option to Purchase was unsigned. Believing these documents to be genuine, Ammar Salim submitted them to Maybank's Credit Processing Department for approval of the mortgage loan. He later stated that he would not have submitted these documents if he had known that the income documents were forged.[note: 73]

(iii)     Dorothy explained that her team at Maybank received the Option Vests Pte Ltd pay statements, CPF Board Contribution Histories, and the IRAS Notice of Assessment (NOA) related to the mortgage loan application in Iswandi's name sometime in August 2014. Maybank relied on these documents to assess and approve the loan application. However, Dorothy stated that if Maybank had known that these documents were not genuine, the bank would not have approved the loan. As a result, Maybank was dishonestly induced into approving the loan based on falsified documents.[note: 74]

(iv)     After Maybank approved Iswandi’s loan on 15 August 2014, Ammar Salim informed "Mr. Iswandi" that the letter of offer was ready. Later that month, Ammar met the real Iswandi at a food court near Lavender. Ammar confirmed the real Iswandi’s identity by checking his face against his NRIC and assumed this was the same person he had been communicating with via email and phone. After the real Iswandi signed the Letter of Offer, Maybank disbursed $2,840,000 for the purchase of Woodgrove Walk.[note: 75]

(j) PW7 Go Theng Theng[note: 76] (“Go”)

Go who is an IRAS officer testified that the certificate of stamp duty for the Woodgrove Property was issued on 29 September 2014. Based on the Form E1A (Requisition Form for the Sale and Purchase of Immovable Property), Sufandi had applied for the certificate on 15 September 2014, and payment was made in cash on 29 September 2014. Go stated that when stamp duty is paid at the service bureau, the bureau only ensures that the document to be stamped and the amount to be paid are correct. Regardless of who pays the stamp duty, the document will be stamped, and they will not reject the payment solely because it is not the named buyer personally paying the stamp duty. Go cannot confirm if the bureau verified the identity of the person paying the stamp duty at the service bureau.

(k) PW22 Gobikrishna s/o Chinaya[note: 77] (Gobi)

(i)     Gobi testified that he established Evergreen Landscaping & General Construction around 2010 with financial support from BJ, who provided $50,000 as starting capital. The business was registered under Gobi's father, Govindasamy Chinaya's name, but Gobi independently managed its operations. The collaboration with BJ ended around 2015 when Gobi repaid the $50,000 capital. Evergreen Landscaping continues to operate, with Gobi still managing its operations.

(ii)     According to Gobi, Evergreen Landscaping is a separate entity from EBS. Gobi filed for a Personal Protection Order against BJ for harassment, but this action was taken after he had repaid BJ the capital for Evergreen Landscaping.

(iii)     In 2014, BJ requested Gobi to prepare a quotation for renovation work on the Saraca Property. Gobi was hesitant to provide the quotation because he was concerned that if the loan associated with the quotation was not repaid, it might jeopardize his business or his father's financial standing.

(iv)     Gobi stated that he had not seen the EBS quotation in P52 until his interview with the CAD. He did not prepare the quotation and was unaware of who did. He assumed that BJ had prepared it. Initially, Gobi thought the quotation might not be genuine because it was on EBS’s stationery, and his father, as the director, would likely need to be informed about such works. However, as of 2023, he remains uncertain about its authenticity.

(v)     BJ once asked Gobi to refer friends who would be willing to buy properties in their names and declare bankruptcy if they were unable to pay for the houses. BJ did not specify which properties were involved or the roles of the individuals in this arrangement.

(I) PW24 Zulkarnain Lim Bin Zulkefli[note: 78] (Zulkarnain)

(i)     Zulkarnain knew Sufandi personally by his real name and recognized BJ as "Sufandi’s boss." At a Coffee Bean meeting at Greenwich V, Sufandi and BJ explained to him their plan to sell Limbok Terrace by listing a price on the OTP higher than the actual agreed price between the buyer and the seller so that the bank would approve a larger loan amount than what would have been granted based on the actual transaction value. After the loan was disbursed by the bank based on the inflated OTP price, Sufandi and BJ expected to receive a portion of the funds back from the seller in the form of cashback which Zulkarnain understood could potentially amount to a few hundred thousand dollars.

(ii)     At the same Greenwich V meeting, Zulkarnain was informed by Sufandi and BJ that the seller would receive only 1% of the agreed sale price when the OTP was signed. The downpayment of 19% of the sale price stated on the OTP would not be paid to the seller. Once the bank approved and disbursed the mortgage loan, which would cover 80% of the inflated sale price, the seller would receive the funds directly from the bank. After receiving the bank's disbursement, the seller was required to return a portion of the money to the buyers, namely Sufandi and BJ, in the form of cashback. Following the meeting, Zulkarnain explained the scheme to the seller, who agreed to the arrangement.

(iii)     Sufandi, who corresponded with Zulkarnain using the email address xxxx.350, revealed to Zulkarnain that the Woodgrove Walk property had been purchased from a Malay family where the husband had some medical problems and the wife decided to sell the house using the same method that was explained to him for Limbok Terrace.

Credibility of the Prosecution witnesses

9       A court’s findings as to the credibility of a witness can be based on his demeanour and the internal consistency of his own evidence, or the external consistency between his own evidence and extrinsic evidence (such as the evidence of other witnesses, documentary evidence or exhibits), or some combination of these.[note: 79]

10     Having assessed the testimony and demeanour as well as the conduct of each of the Prosecution witnesses (except the deceased Hamzi) during their respective EIC, XE and RE at the trial and in the light of corroboration by the other Prosecution and/or Defence witnesses, documentary evidence and/or exhibits, I rejected all the Defence contentions that the evidence of Prosecution witnesses are inconsistent and incredible. I agreed with the Prosecution and found that all the Prosecution witnesses who have no apparent motive to lie (as they have not been prosecuted or have already served their sentences for similar or other offences) to be credible and truthful. I accepted their respective testimonies insofar as they are relevant to prove the charges against each of the APs (on which this Court will make the findings of facts in section (J) below) with the immaterial and/or irrelevant inconsistencies in their testimonies as explained below.

Corroboration

11     In terms of corroboration, I agreed with the Prosecution and found as follows:

(a)     PW1 Yeo's evidence regarding price inflation was corroborated by PW3 Adrian which suggests consistency and strengthens the credibility of their accounts about inflating sale prices. Their accounts on the sale of Saraca Terrace and who explained the scheme to inflate the sale price align with Sufandi's CAD statements. Sufandi had stated that Kok first explained the scheme to Adrian and later explained it to Yeo at a meeting at Greenwich V. Yeo’s evidence about the handling of cheques, including receiving post-dated cheques and instructions not to encash them, is consistent with Sufandi’s admissions in his CAD statements. Sufandi admitted that these cheques were given to Yeo to falsely represent that a portion of the sale price had been paid. Furthermore, Yeo's claim of giving $300,000 in cash to Sufandi and Kok is consistent with Sufandi’s admission that the $300,000 was divided among BJ, Kok, and himself. [note: 80] In my view, the consistencies between the accounts of different witnesses and the corroboration of evidence reinforce the case against the APs involved in the fraudulent scheme related to the sale of Saraca Terrace and the manipulation of sale prices.

(b)     PW4 Naseeruddin was a candid and upfront witness whose testimony I found to be credible. His honesty and transparency in describing his role in the Saraca Terrace transaction enhance the reliability of his account. Naseeruddin described being persuaded by Sufandi to be the named buyer for Saraca Terrace, with Sufandi promising him money. He claimed that his income documents submitted to Maybank were forged, and he did not communicate directly with the bank officer. On Sufandi's instructions, he attended the Maybank branch to sign the Mortgage Facility Letter and proceeded to Lutfi Law to sign the Mortgage Instrument. Naseeruddin further testified that he used the forged income documents to purchase a car. These details align with Sufandi's CAD statements, indicating that Sufandi orchestrated the fraudulent transactions and directed Naseeruddin's actions. Sufandi’s CAD statements confirm that he was responsible for communicating with the bank officer and submitting the forged income documents, which were prepared by either BJ or Kok. In my view, the consistency between Naseeruddin's testimony and Sufandi's admissions in his CAD statements supports the credibility of Naseeruddin's account and strengthens the case against the APs involved in the fraudulent activities related to the Saraca Terrace transaction.[note: 81]

(c)     I found no merit in Sufandi’s submissions[note: 82] that Naseeruddin is the real mastermind behind the scheme to defraud Maybank in relation to Saraca Terrace and that Naseeruddin is not a credible witness. Sufandi’s claim that Naseeruddin’s oral evidence is unreliable and inconsistent, and therefore should be disregarded, does not hold up against the trial evidence. I accepted the Prosecution’s submissions[note: 83], which demonstrated that there is no evidence suggesting Naseeruddin masterminded the scheme to cheat Maybank. Instead, the weight of the Prosecution’s evidence, including witness testimonies and documentary evidence, clearly points to a conspiracy involving Sufandi, Kok, and BJ to defraud Maybank as based on the trial evidence, it was clear that:

(i)       Naseeruddin had no dealings whatsoever with the sellers (Yeo and Lim) or their agent (Adrian), but there was extensive and prolonged interactions between the sellers and Sufandi (referred to as "Andi") as well as Kok to discuss the specifics of the sale transaction with no mention of Naseeruddin who had no involvement in the negotiations, discussions, or agreement of the sale.

(ii)       Naseeruddin's minimal interactions with Angela Veronica, limited to Sufandi's instructions and a single visit to Lutfi Law to sign the Mortgage Instrument, highlight his peripheral role in the scheme. On the other hand, Angela Veronica's testimony regarding Kok's proactive role in providing necessary information for the conveyancing process and liaising with Angela Veronica for the BSD payment demonstrates his deeper involvement and active participation in the scheme.

(iii)       Naseeruddin's limited financial benefit, receiving only $40,000 instead of the promised $60,000, contrasts sharply with BJ's substantial gain of $170,000 from the total amount collected by Sufandi and Kok. This stark difference in financial gain highlights Naseeruddin's subordinate position in the scheme and further supports the Prosecution's case that he was merely a dummy robot in BJ's property scam. The promise of an investment opportunity by Sufandi, which led to Naseeruddin applying for a mortgage loan and subsequently being declared bankrupt, further solidifies the narrative of Naseeruddin being manipulated and used by the main conspirators.

(d)     I disagreed with Sufandi’s submissions[note: 84] on the inconsistencies in Naseeruddin’s evidence as I agreed with the Prosecution[note: 85] that his evidence was internally and externally consistent as his evidence was clear that he was promised $60,000 by Sufandi, but was only eventually given $40,000; he did not meet Jefri at the IGB office and only met Jefri in prison in 2015; his knowledge about a UOB loan application is extremely limited as all that he knew was that the outcome of the application was a rejection and did not know anything else, much less how the application was made; and he was initially unaware that forged documents were used for the mortgage application, but he found out subsequently when he requested for a copy from Sufandi to obtain a personal loan and a car loan. Further, it was wrong for Sufandi to submit that Naseeruddin was fully capable of applying loans for himself as the steps in applying for a mortgage loan differs vastly from an application for a personal loan and a car loan and he could not have applied for the personal loan or the car loan until he obtained the income documents from Sufandi.

(e)     PW5 Angela Veronica's testimony that Kok was responsible for paying the BSD is supported by documentary evidence. Kok applied for and obtained a cashier's order for $81,600, payable to the Commissioner of Stamp Duties, on 16 April 2014. The funds for this cashier's order came from the Maybank account of Oasis Realtors & Consultant Pte Ltd, of which Kok is the sole authorized signatory. This evidence established Kok's involvement in the financial transactions related to the purchase of Saraca Terrace. Angela Veronica's testimony that Kok was the main individual she communicated with for the purchase of Saraca Terrace aligned with Sufandi's CAD statements wherein Sufandi stated that Kok was the one who liaised with Lutfi Law for the purchase of Saraca Terrace. Additionally, Naseeruddin's phone number for communication with Maybank (xxxx) matches the number stated in the Maybank Mortgage Loan documents. Sufandi admitted to using the same phone number to communicate with Maybank. [note: 86] In my view, the consistency between Angela Veronica's testimony, Naseeruddin's phone number, Sufandi's CAD statements, and the documentary evidence strengthens the case against Kok and supports the credibility of the Prosecution witnesses' accounts.

(f)     I disagreed with Kok’s submissions[note: 87] that Angela Veronica was not careful and did not follow necessary protocols in handling the conveyancing transaction and her EIC evidence was largely based on assumptions, and as such, little to no weight should be given to Angela Veronica’s testimony. I accepted the Prosecution’s submissions that these attacks on Angela Veronica’s evidence by attacking her character and casting her as an incompetent conveyancing secretary are unfounded for the following reasons:

(i)       In property transactions, the signing of the OTP is typically witnessed by another party who also signs the document as a witness. This witness provides an additional layer of verification for the buyer's signature, negating the need for the conveyancing secretary to conduct a separate verification. Conveyancing secretaries like Angela Veronica are generally responsible for ensuring that the necessary documents are prepared correctly and in accordance with legal requirements. Once the OTP is signed by the buyer and witnessed by another party, the conveyancing secretary's role primarily involves processing the transaction based on the information provided and the signatures witnessed on the document.[note: 88]

(ii)       A Warrant to Act is typically associated with litigation matters where a solicitor is representing a client in court proceedings. It serves as evidence that the solicitor is authorized to act on behalf of the client in those specific legal proceedings.[note: 89] For non-litigation matters such as conveyancing, there is generally no requirement for a Warrant to Act to be signed.[note: 90]

(iii)       Angela Veronica’s evidence regarding Kok's involvement in the sale of Saraca Terrace revealed that she had received specific information from Kok regarding the buyer, completion timeline and financing mode which demonstrates Kok's active role in the transaction. Further, the documents that Angela Veronica received from Kok, including the signed OTP with a 4% cheque and the BSD, further corroborate his involvement. The Lutfi Law file cover that identifies Kok by name and contact details, along with the BSD paid for by a cashier's order from Kok's company, Oasis Realtors, further strengthens the case for his involvement. These objective documentary pieces of evidence align perfectly with Angela Veronica's testimony and paint a consistent picture of Kok's role in the sale of Saraca Terrace.[note: 91]

(iv)       In his EIC, Kok denied having any dealings with Angela Veronica, specifically denying that he referred the transaction to her or arranged for Lutfi Law to act for the buyer. This denial contradicts his previous statements and actions related to the transaction. Contrary to his denial, Kok's position in his Case for the Defence and his interactions with Angela Veronica indicate that he did, in fact, have dealings with her. He accepted that he went to Lutfi Law to hand over the OTP and the 4% cheque, directly contradicting his earlier denial. These inconsistencies between Kok's EIC and his Case for the Defence, as well as his interactions with Angela Veronica, highlight a credibility issue in his defence. It raises questions about the reliability and truthfulness of Kok's testimony and his overall defence strategy. Addressing these inconsistencies is crucial for Kok to maintain any semblance of credibility and to effectively challenge the Prosecution's case against Kok,[note: 92] but he failed to do so.

(g)     The corroboration between the evidence of Hamzi and Rohana that the sale price of Woodgrove Walk was artificially inflated, with a subsequent "cashback" payment to EBS strengthens the credibility of their accounts. Juma'at's first statement about earning a "commission" aligns with Hamzi's account that Haron and Juma'at acted as his agents and received a commission. Rohana's testimony about bargaining down the commission to $7,000 further supports this narrative, showing consistency in the details of the transaction and the roles of the involved parties. The consistency between Hamzi, Rohana, and Juma'at regarding the payment of the 1% Option Fee—whether received directly from Juma'at or Haron—adds to the reliability of their testimonies. The existence of two OTP agreements and the subsequent extraction of $464,000 from Hamzi and Rohana and paid to EBS, align with Sufandi's CAD statements.[note: 93] In my view, the consistency between the testimonies of Hamzi, Rohana, Juma'at, and Sufandi's CAD statements provide strong evidence of fraudulent activities of the APs involved in the sale of Woodgrove Walk, including price inflation, cashback payments, commission payments, and the involvement of agents.

(h)     Both Rajendran and Prasanna confirmed that the 12 September 2014 meeting's purpose was to discuss and provide instructions on how to distribute the proceeds of the house sale. Prasanna's testimony that Haron provided the quotation in P52 and gave instructions on the distribution, including the payment of $464,000 to EBS, directly implicates him in the transaction. The consistency between Rajendran's and Prasanna's evidence suggests that Haron, along with Rohana and Hamzi, played a significant role in the fraudulent distribution of the sale proceeds, including directing substantial payments to EBS.[note: 94]

(i)     Iswandi's claim that he did not communicate with Maybank officers or conveyancing secretaries, except for signing a Letter of Offer, is corroborated by Sufandi's admissions in his CAD statements. This alignment suggests that Iswandi's involvement was minimal, and he did not engage directly with the parties handling the transaction, further supporting his credibility. The evidence provided by Ammar Salim, who corresponded with a specific phone number and email address, and Shirley, who testified that she dealt directly with Sufandi, further reinforces Iswandi's account. Their testimonies confirm that Sufandi was the primary point of contact, not Iswandi, aligning with Iswandi's assertion of his limited role. Iswandi's testimony that he signed the Mortgage Instrument at a law firm in Chinatown is consistent with Sufandi's CAD statements, adding another layer of corroboration that strengthens the reliability of Iswandi's evidence. [note: 95] In my view, the consistency between Iswandi's testimony and the corroborating evidence from other witnesses, combined with Sufandi's admissions in his CAD statements, paints a clear picture that Iswandi was not the key player, which strengthens the case against those APs who were actively involved, particularly Sufandi.

(j)     As pointed out by the Prosecution[note: 96], Zulkarnain's evidence plays a critical role in corroborating the existence of the cashback schemes and in reinforcing the credibility of Sufandi's CAD statements regarding the cashback schemes related to Saraca Terrace, Woodgrove Walk, and Limbok Terrace. Zulkarnain's testimony regarding the cashback schemes for Limbok Terrace aligns with Sufandi's admissions in his CAD statements, providing strong evidence that these schemes were not isolated incidents but part of a broader pattern of fraudulent activity. This consistency bolsters the reliability of both Zulkarnain's and Sufandi's accounts. The specific details provided by Zulkarnain, such as the sellers of Woodgrove Walk being Malay and the husband's medical issues, matched the evidence from other witnesses. This further supports the credibility of Zulkarnain's account, as these consistent details across testimonies indicate a shared and accurate understanding of the events. The similarities between the cashback arrangements for Limbok Terrace and Woodgrove Walk, as described by Zulkarnain, are particularly significant. They suggest that a similar fraudulent scheme was applied across multiple properties, thereby strengthening the case against key players like BJ, Kok, and Sufandi. Zulkarnain's evidence effectively counters the assertions made by BJ's counsel during XE. By directly addressing the claims regarding his alleged collaboration with BJ, Zulkarnain clarifies any misconceptions and reinforces the accuracy of the evidence against BJ, particularly in relation to the cashback schemes.

(k)     I accepted the Prosecution’s submissions[note: 97] that Zulkarnain’s evidence that he was informed that there was a cashback arrangement for Woodgrove Walk and was given a detailed explanation of how there was to be a cashback arrangement for Limbok Terrace, and was told that Limbok Terrace would be transacted in the same manner as Woodgrove Walk should be given full weight under ss 9, 11(b) and 158 EA[note: 98] and/or as similar fact evidence. Zulkarnain’s aforesaid evidence as explained to him by BJ is specifically connected to the issue of whether there was a cashback arrangement for Woodgrove Walk, and whether Sufandi and BJ were involved in the cashback scheme for the property, and is essentially identical to the cashback arrangement described by other Prosecution witnesses for Saraca Terrace and Woodgrove Walk which makes it “highly probable” that the same cashback scheme was also in place for Saraca Terrace and Woodgrove Walk, and BJ was aware of this. As held in Tan Meng Jee v PP [1996] SGCA 34 at [50], the more “similar” the evidence, the more probative the evidence. Zulkarnain’s testimony, being almost identical to the descriptions of the cashback arrangement provided by other witnesses, increases the probability that the same fraudulent scheme was employed across different properties. This similarity adds significant weight to the overall evidence against BJ and other APs involved. Zulkarnain’s testimony also serves as a direct rebuttal to the assertions made by BJ’s counsel during XE. By affirming that Zulkarnain did indeed work with BJ, it strengthens the case against BJ and aligns with the admissions in Sufandi’s CAD statements. Further, under s 158 EA, Zulkarnain’s aforesaid evidence on Limbok Terrace and the cashback arrangement corroborated Sufandi’s CAD statements; evidence of PW1 Yeo and of PW6 Rohana as well as the statements of Hamzi (deceased), all of which are three threads of evidence pointing towards there being a scheme to inflate the price of Saraca Terrace and Woodgrove Walk on the conveyancing documents, and a cashback arrangement for the buyers to receive the proceeds of the higher bank loan obtained with no fear or possibility of collusion as Zulkarnain was not able to recognise Yeo, Lim, Rohana, or Hamzi. In this regard, I disagreed with:

(i)       BJ’s submissions[note: 99] that Zulkanain’s evidence should be rejected as he was called to give similar fact evidence of evidence of what he heard which is hearsay, and what transpired is in relation to another property, the Limbok property, which is not the subject matter of this trial; and

(ii)       Sufandi’s submissions[note: 100] that this Court was wrong during the AH to allow Zulkarnain to testify in court to set out his entire story and no weight should be assigned to Zulkarnain’s evidence as his evidence covers alleged events that transpired regarding the Limbok Property and while BJ and Sufandi have put their cases to Zulkarnain, it would have been necessary to have the evidence of all parties involved in the Limbok Property transaction to fully compare and assess the credibility and weight of Zulkarnain’s evidence against the evidence of other witnesses involved in the Limbok Property, as otherwise it is extremely unsafe to assign any weight to Zulkarnain’s evidence which is similar fact evidence and prejudicial in nature.

(l)     PW9 Wong, the bank officer’s evidence that she received the application form and income documents via email is consistent with Sufandi’s CAD statements.[note: 101]

(m)     The testimony of PW22 Gobikrishna is crucial in establishing the involvement of BJ, Kok, and Sufandi in a property scam conspiracy. According to Gobikrishna, BJ instructed him to recruit individuals willing to serve as "dummy robots"—people who would apply for bank loans to purchase properties but were expected to default on payments, leading to their bankruptcy. This was described as a "property scam." Gobikrishna's testimony is consistent with evidence from other witnesses, such as Sufandi and Naseeruddin. For instance, Sufandi orchestrated a similar scheme involving Naseeruddin, who acted as a "dummy robot" for the Saraca Terrace property. Naseeruddin's role was limited to applying for a mortgage bank loan and signing conveyancing documents, despite lacking the financial means to make payments for the property. As anticipated, when the payments were defaulted, Naseeruddin was declared bankrupt. The alignment of Gobikrishna’s testimony with that of other witnesses bolsters the Prosecution's argument, demonstrating a conspiracy to cheat involving BJ, Kok, and Sufandi. As held at the AH, Gobikrishna's memory was appropriately refreshed according to the procedures outlined in s 161 EA. After reviewing his statements to the CAD, Gobikrishna affirmed their accuracy. Therefore, I agreed with the Prosecution[note: 102] that Gobikrishna's testimony is credible and should be given full weight, as it significantly reinforces the case against BJ and other APs in the property scam conspiracy.

(n)     Kok received $80,000 in cash from BJ, which he then deposited into his personal bank account. From there, Kok withdrew $72,000 and transferred it into the bank account of Oasis Realtors. Following this, Kok purchased a Cashier's Order for $81,600, payable to the Commissioner of Stamp Duties, specifically for the BSD associated with Saraca Terrace. These actions are consistent with Sufandi's CAD statements, in which he mentioned that Kok coordinated with BJ regarding the BSD money. Furthermore, this aligns with the testimony of PW5 Angela Veronica, who indicated that she communicated with Kok regarding the BSD payment. The pattern of transactions involving Kok and BJ clearly suggests a financial link to the purchase of Saraca Terrace.[note: 103] In my view, this connection reinforces the Prosecution's argument that there was a conspiracy involving Kok, BJ, and Sufandi to commit fraud in relation to the Saraca Terrace property.

(o)     I disagreed with Sufandi’s submissions[note: 104] that he had no role in the Woodgrove Walk transaction beyond a mere limited role of recommending the house to Naseeruddin for investment and asking BJ to prepare P52, and his arguments that Shirley’s evidence identifying him as the "Fandi" she dealt with was ambiguous due to her mistaken identification of him during her testimony. I found Shirley's identification of Sufandi to be corroborated by external evidence. Shirley's testimony that it was possible Sufandi was the "Fandi" she dealt with, along with her identification of him via photograph in P68, adds weight to her statement. As pointed out by the Prosecution[note: 105], Shirley's position is reasonable and consistent with that of a truthful witness as the photograph of Sufandi exhibited in P68, which was taken closer to the time Shirley would have interacted with "Fandi," offers a plausible explanation for why she was able to recognize "Fandi" in the photo but not necessarily recognize the person she saw in court. Furthermore, Sufandi’s admissions in his CAD statements[note: 106] that he had been corresponding with Shirley from the beginning and providing instructions to her are consistent with Shirley's account that she dealt with "Fandi." In my view, this combination of corroborative evidence supports the conclusions that Shirley’s identification of Sufandi is credible and reliable and that Sufandi played a role in the Woodgrove Walk transaction beyond the aforesaid mere limited role.

Explanations for inconsistencies in the evidence of the PWs

12     A witness whose testimony is inconsistent does not mean that the witness is lying or should not be believed as it is open to the Court to accept one part of a witness’ testimony and reject the other part by scrutinizing each piece of evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances and there is no requirement for the testimony of a witness to be either believed in its entirety or not at all.[note: 107] Whether an inconsistent witness ought to be believed is a matter of degree and the test is whether the inconsistencies undermine the witness’ evidence in key aspects[note: 108]. In terms of any inconsistencies between or among the Prosecution witnesses and/or with the Defence witnesses, I rejected the Defence contentions and accepted the Prosecution’s submissions and found as follows:

(a)     As regards the following inconsistencies between the testimonies of PW1 Yeo and PW3 Adrian, I found as follows :

(i)       As for the discussions at the Greenwich V meeting, Yeo testified that Sufandi and Kok explained that although the price stated on the OTP would be $2.9 million, Yeo would only receive $2.3 million. Yeo sought Adrian's opinion on this matter, to which Adrian allegedly responded that it was "okay to proceed." However, Adrian testified differently, stating that he was unaware of the discussion at the meeting because he was on a phone call and had stepped out. Adrian further suggested that he suspected the discussion might involve a cashback scheme, but he chose not to get involved. While Yeo testified that he would not have acted against Adrian’s advice, after assessing the evidence, I rejected the submissions[note: 109] of Kok and Sufandi regarding the inconsistency between Yeo and Adrian's accounts of the Greenwich V meeting. I accepted the Prosecution's explanation[note: 110] that Yeo's testimony should be preferred over Adrian's. Yeo's account of the discussion is more credible and should be accepted as the truth of what transpired at the Greenwich V meeting. This conclusion is supported by documentary evidence indicating that 19% of the price stated on the OTP was not received by Yeo. This evidence is consistent with the fact that the 4% and 15% cheques were not encashed and were instead seized by the CAD from Yeo. Adrian's testimony could be interpreted as an attempt to downplay his involvement to avoid implicating himself in an illegal arrangement, which is not in line with the documentary evidence presented. Additionally, Yeo is not a housing agent and therefore has no reason to distance himself and his wife from the transaction to avoid legal trouble, unlike Adrian, who, as a housing agent, would have a motive to do so. Thus, Yeo’s testimony is considered more reliable in this context.

(ii)       Regarding the inconsistency about whether Yeo received the 15% cheque from Adrian, I rejected Sufandi’s and Kok’s submissions.[note: 111] I agreed with the Prosecution's position[note: 112] that this discrepancy is trivial and immaterial as although the cheque was delivered to Yeo, it was never encashed and remained in his possession until it was seized by the CAD. This fact renders the debate over whether Yeo received the cheque inconsequential to the overall case, as it does not affect the substantive issue of the alleged fraud or conspiracy.

(iii)       In relation to the offers made at the KFC meeting, I rejected Sufandi's submissions[note: 113] and agreed with the Prosecution[note: 114] that Adrian and Yeo’s testimonies are factually consistent. Adrian conveyed Kok's offer to Yeo about setting up a company, which Yeo subsequently rejected. While Adrian's testimony is ambiguous about whether he communicated the IOU offer to Yeo, this ambiguity is immaterial. As explained by the Prosecution, all the offers made at the KFC meeting were ultimately rejected, necessitating the scheduling of the Greenwich V meeting. Therefore, any inconsistency regarding the communication of specific offers is irrelevant to the case, as the key point is that none of the offers was accepted.

(iv)       As regards the number of viewings, there is no inconsistency between Adrian's and Yeo's testimonies. Adrian mentioned that there were around 10 viewings, while Yeo testified that "there were not many viewers throughout the 6 months." This statement from Yeo contradicts Sufandi's submissions[note: 115] that Yeo claimed there were no viewings at all. Yeo's comment does not suggest that no viewings occurred; rather, it indicates a relatively low number of viewings, which is not inconsistent with Adrian's account of there being about 10 viewings. In my view, the testimonies are not in conflict and the Prosecution's position[note: 116] on this matter is supported by the evidence.

(b)     As for the inconsistencies between the testimonies of PW1 Yeo and PW2 Lim about Kok's demand for $300,000 and the handling of the 4% and 15% cheques, I found the discrepancies to be minor and not detrimental to the credibility of the witnesses or the Prosecution's case. Yeo testified that Kok demanded $300,000 around the completion date, and he mentioned passing the cash to Kok to Lim but did not provide her with many details to avoid causing her concern. Yeo also stated that he received the 4% and 15% cheques but did not encash them. In contrast, Lim either could not recall or was unaware of these specific details. I agreed with the Prosecution’s explanation[note: 117] that these inconsistencies are minor, given that Yeo's greater involvement in the property sale was evident from both his and Lim's testimonies. Lim admitted that she left the negotiations to her husband and was not fully aware of the details surrounding the sale. Therefore, I found Lim’s lack of recollection or knowledge regarding certain aspects of the transaction to be understandable and reasonable. I rejected Kok's submissions[note: 118] that Yeo and Lim were attempting to distance Lim from the transaction to protect her from liability and that it was unbelievable that Yeo would not have informed Lim, his wife, about such a large cash withdrawal. Given the context and the evidence, I found that the aforesaid inconsistencies did not significantly impact the overall credibility of the testimonies of Yeo and Lim or the Prosecution's case against the APs involved.

(c)     I rejected Sufandi’s submissions[note: 119] that Yeo's statement about taking $1,000 from his safe was inconsistent with Lim's statement that there was no cash in the safe after Chinese New Year. I agreed with the Prosecution[note: 120] that there are no inconsistencies between Yeo's and Lim's evidence. Lim's testimony was that she kept cash in the safe only for Chinese New Year, and she was specifically referring to her own use of the safe, not Yeo's. Lim did not state that there was no cash in the safe in April 2014; her comment was specific to her practice of keeping cash in the safe solely for Chinese New Year. Therefore, any interpretation that Lim claimed there was no cash in the safe at all in April 2014 is unfounded and I found no contradiction between Yeo's and Lim's testimonies regarding the presence of cash in the safe.

(d)     I rejected Kok’s submissions[note: 121] that Yeo’s evidence was inherently incredible based on his assumption that “Naseeruddin bin Allamdin” is Andi’s full name because both are Malays. I agreed with the Prosecution[note: 122] that Yeo's assumption was entirely reasonable. Yeo had dealt with Sufandi as "Andi" without being provided with his full or legal name. Given that Sufandi is Malay, it is reasonable to perceive "Andi" as a nickname or an English name derived from "Naseeruddin bin Allamdin," both of which are Malay-sounding names. Therefore, Yeo's assumption did not undermine the credibility of his evidence.

(e)     I rejected Kok's and Sufandi's submissions[note: 123] that Lim's evidence was inherently incredible. They argued that Lim's lack of knowledge about the inflation or cashback schemes, her inability to recognize Kok in court, and her failure to recall any threats made to her children were implausible, especially considering that Yeo would have likely shared such information with her. I agreed with the Prosecution[note: 124] that the dynamics between Yeo and Lim provide a plausible explanation for these issues. Yeo was more actively involved in the sale process, and Lim trusted him to handle most aspects of it. This division of responsibilities explains why Lim might not have been aware of the cashback or inflation schemes, did not recognize Kok in court, and did not remember any threats made to her children. Yeo’s testimony that he intentionally kept information about the threats from Lim to prevent her from worrying further supports the credibility of Lim's evidence. In my view, if Yeo chose to shield Lim from this information to protect her, it is entirely reasonable that Lim would be unaware of Kok and the threats in question.

(f)     I accepted the Prosecution’s explanation[note: 125] that the inconsistency between PW1 Yeo’s testimony and Sufandi’s CAD statements regarding when Yeo was informed about the cashback requirement is immaterial. Yeo testified that he was informed about the cashback requirement one week before completion, during a visit by Kok to Saraca Terrace, with no such discussion occurring at the Greenwich V meeting. In contrast, Sufandi’s CAD statements indicated that Kok provided a breakdown of the cashback amount during the Greenwich V meeting. The Prosecution’s position is that this inconsistency does not undermine the overall case. Both Yeo and Sufandi testified that a cashback of $300,000 was paid at Saraca Terrace after completion, in the presence of Yeo, Kok and Sufandi. This is supported by documentary evidence showing a withdrawal of $299,000 by Yeo post-completion. The discrepancy in when Yeo was informed about the cashback could be attributed to misunderstanding or misremembering of events, considering the significant time lapse since the incident occurred—two years between Sufandi’s CAD statements and the events in 2014, and more than eight years for Yeo. Given the complexity of the case and the passage of time, it is reasonable that recollections might differ. Therefore, I found the inconsistency regarding the timing of the cashback discussion to be insignificant, especially when weighed against the broader evidence of the cashback transaction’s occurrence. In this regard, I rejected Kok’s submissions[note: 126] that this inconsistency is material and that the Prosecution needed to establish the timing of the cashback to lend credibility to either Sufandi or Yeo as a witness.

(g)     I agreed with the Prosecution's submissions[note: 127] that the inconsistencies between Hamzi's and Rohana's testimonies regarding various details of the property transaction (such as how the OTP was signed, who was present when signing the OTP and what was the selling price and the $464 quotation) can be attributed to their roles, emotional state and the husband-wife relationship dynamics, where Hamzi played a dominant and decision-making role while Rohana followed his lead. Hamzi could recall specific details and provide reasons due to his active role, while Rohana’s lack of memory reflects her passive involvement. Rohana's emotional state, particularly during her testimony some 4 months after her husband's death could also have contributed to her lack of detailed recollection. Her visible distress and emotional breakdown during EIC supported her credibility, indicating the events' personal significance to her. Rohana’s acknowledgment of the transaction being "improper" and her decision to go along with Hamzi's lead aligns with her testimony and further supports her credibility. This consistency, along with Hamzi's admissions during his guilty plea that he agreed to mark-up the sale price and pay a cashback for renovation, as he was financially desperate and the resulting sentence, strengthens the Prosecution’s argument that both witnesses were truthful about their involvement and perspectives on the transaction.

(h)     As regards the inconsistencies between Hamzi's and Rajendran's testimonies, Hamzi provided a detailed account, stating that he informed Rajendran initially that he had not received the $674,500, but later understood that the matter was "settled" after a discussion with Haron. Rajendran assumed the sum had been paid because he would not have proceeded with the transaction if Hamzi and Rohana had not been paid this amount. His recollection was less detailed than Hamzi. I accepted the Prosecution's explanation[note: 128] that the inconsistency lies in the level of detail provided. Hamzi, as the seller and directly affected by the transaction's financial implications, would naturally have a more detailed memory, especially given his financial situation. On the other hand, Rajendran, being an experienced lawyer handling potentially routine transactions, might not have recalled specific details but remembered the broader conclusion that the sellers indicated they had been paid all sums due Neither Hamzi nor Rajendran was lying; instead, their different recollections can be attributed to their roles and the significance of the transaction to them. Hamzi’s account is more detailed due to his direct involvement and the financial stakes. Rajendran’s less detailed recollection is understandable given his professional experience and the routine nature of his work. There is another difference between Hamzi and Rajendran in their accounts regarding the number of meetings with the lawyer. I found this discrepancy to be a minor inconsistency that does not undermine Hamzi’s overall evidence as I agreed with the Prosecution[note: 129] that this inconsistency is not material to the core issues at hand, especially given the explanations provided for the different levels of detail and involvement of Hamzi and Rajendran. In this regard, I rejected Sufandi's arguments[note: 130] that the inconsistency between Hamzi's and Rajendran's testimonies was material and indicative of credibility issues as I found that the differences in their accounts could reasonably be explained by their different roles and perspectives in the transaction and do not undermine their overall credibility.

(i)     As for Sufandi's submissions[note: 131] that Hamzi was inconsistent about the circumstances in which he signed the OTP for the Woodgrove Walk transaction, I accepted the Prosecution’s submissions[note: 132] that there is no inconsistency about who asked Hamzi to sign the OTP as according to the trial evidence, the OTP in Exhibit P34 for Woodgrove Walk was prepared by Haron, who informed Hamzi that the property would be sold for $2.4 million. Juma’at delivered the OTP along with the 1% option fee of $24,000 to Hamzi and Rohana, who then signed the blank OTP exhibited at P34. Rohana testified that she had never seen the OTP exhibited at P38 (which was ultimately submitted to Maybank) and confirmed that the signatures on P38 were not hers or Hamzi’s. As for Sufandi’s arguments[note: 133] that Hamzi was inconsistent about the documents signed at the lawyer's office, I agreed with the Prosecution[note: 134] that any inconsistency regarding the documents signed at the lawyer's office is minor and does not undermine Hamzi’s credibility as a witness.

(j)     Regarding the inconsistency between the testimonies of Sufandi, Iswandi and Naseeruddin on how Iswandi was introduced to the cashback scheme, Iswandi had stated that he was introduced to the cashback scheme by a person named "Bobby," who connected him to "Fandi." "Fandi" then explained the scheme and promised Iswandi $5,000 for his participation. However, Iswandi could not identify Naseeruddin. Naseeruddin could not identify Iswandi and denied introducing Iswandi to Sufandi. Sufandi's CAD statements indicated that he found Iswandi through Naseeruddin. I accepted the Prosecution's explanation[note: 135] that the aforesaid inconsistency regarding how Iswandi was introduced to the cashback scheme is not material to the charges related to the Woodgrove Walk transaction as the key issue is not the manner of introduction but Iswandi's subsequent actions after becoming involved in the scheme. Iswandi’s actions, which align with Sufandi's CAD statements regarding the plan to cheat Maybank, are directly relevant to the charges. The crucial factor is Iswandi's conduct after being introduced to the scheme, which is relevant to the charges to defraud Maybank.

(H)   CREDIBILITY OF EACH OF THE ACCUSED PERSONS (APs) AS A WITNESS AND THEIR RESPECTIVE DEFENCES

13     None of the APs’ written submissions and replies had specifically responded or rebutted the Prosecution’s comprehensive submissions on the issue of their respective credibility as a witness at the trial, other than simply stating or asserting their respective testimonies as credible and true. Having regard to each of the APs’ demeanour and their respective conduct at the trial which revealed each of them to have openly fabricated evidence at the trial, as well as in their CAD statements (save for Sufandi’s statements in P65, P66, P67, P78 and P79 admitted at the AH as part of the Prosecution’s case), and in the light of the objective documentary and testimonial evidence adduced by the Prosecution at the trial, I rejected all the Defence contentions and agreed with the Prosecution’s assessment that all the APs are not truthful witnesses and their respective testimonies given at the trial and/or in their CAD statements (except Sufandi’s statements in P65, P66, P67, P78 and P79) is devoid of credit and must be given no weight. Based on the ASOF, the Notes of Evidence and other relevant documentary evidence adduced at the trial, the relevant salient facts from the testimonies of each of the APs may be summarised as follows[note: 136]:

(a)      Bijabahadur Rai s/o Shree Kantrai[note: 137] (“BJ”)

(i)     In BJ's EIC, he made several key assertions regarding his lack of involvement with the properties at Saraca Terrace and Woodgrove Walk, and his explicit denial of participating in any conspiracy to defraud Maybank. BJ stated he had no involvement with the property at Saraca Terrace. He emphasized that he was not part of any scheme related to this property. BJ claimed that he did not know Naseeruddin and mentioned that his first awareness of Saraca Terrace came when he learned that Sufandi was residing there. BJ acknowledged being aware of the property at Woodgrove Walk, but claimed his knowledge was limited to knowing its address. Similar to his claim regarding Naseeruddin, BJ denied knowing Iswandi.

(ii)     EBS, the entity involved in the quotation for renovation works, is registered at BJ's residential address. BJ is responsible for the “builder portion” of EBS's business, which involves handling any renovation works. BJ was approached by Sufandi to prepare a quotation for works listed from item 1.0 to item 9.0 in the EBS quotation (Exhibit P52). BJ prepared this quotation based on the scope of work provided by Sufandi and the figure of $464,000 in the quotation was BJ’s own estimate, based on the scope of work requested by Sufandi. BJ and Sufandi had a practice of introducing business opportunities or “lobang” to each other. After BJ handed over the quotation to Sufandi, he was informed by Sufandi that $464,000 had cleared in BJ’s bank account. This amount was then used to offset loans that Sufandi owed to BJ. BJ mentioned making personal loans to Sufandi from time to time, including a large loan of $1 million. However, BJ could not recall the exact amount owed at the time the payment of $464,000 was received, only that Sufandi still owed him money after the aforesaid payment. There was no formal paperwork documenting the personal loans BJ made to Sufandi. These loans were personal and did not go through BJ’s licensed moneylending business.

(iii)     BJ denied the veracity of the portions of Sufandi’s CAD statements that implicated and named him as a co-conspirator in the scheme to defraud Maybank and indicated that BJ was involved in using forged documents as part of the fraudulent process. When presented with questions and answers from Sufandi’s statements, BJ categorically stated that the incriminating parts were untrue.

(iv)     I agreed with the Prosecution's position[note: 138] that the quotation prepared by BJ was fabricated and not based on an actual assessment of the renovation work required at Woodgrove Walk. The quotation prepared by BJ which stated a total of $464,000 for renovation works was not grounded in any real assessment or understanding of the renovation needs at Woodgrove Walk, but appeared to have been created solely to justify a specific financial transaction—namely, the payment of $464,000 from Hamzi and Rohana to EBS. BJ admitted during XE that he had never met the prospective clients (Hamzi and Rohana) nor visited the Woodgrove Walk site. Without visiting the site, BJ would not have been able to assess critical factors necessary for an accurate quotation, such as the site's condition, precise measurements, or the specific renovation requirements. Given BJ’s lack of firsthand knowledge about the site, it would have been impossible for him to prepare a remotely accurate quotation. In my view, BJ’s lack of site inspection means he would not have known if the property conditions were suitable for the proposed work or the actual scope and costs associated with such renovations and this underscores the fabricated nature of the document.

(v)     The evasiveness and inability of BJ to provide a coherent basis for the quantities and unit rates listed in the quotation further substantiate the Prosecution's argument that the quotation was fabricated and intended to deceive. During XE, BJ demonstrated evasiveness and provided implausible explanations regarding the figures and quantities in the quotation. BJ’s answers during XE were absurd based on two examples cited by the Prosecution[note: 139] relating to item 2(a) and item 3(d) in the quotation. When questioned about the quantity listed for item 2(a) (the vertical green wall), BJ avoided giving a direct answer. When pressed further, his only explanation was that he had "googled how to construct a vertical green wall." This response lacked specificity and did not explain how he arrived at the specific figure of 1,200 square meters stated in the quotation (P52). Another example in item 3(d) of the quotation further illustrates BJ's unreliable estimates. He claimed that the quantity in item 3(d) was "based on a lump sum, based on Woodgrove Walk house area." However, when asked how he knew the house area without ever visiting Woodgrove Walk, BJ initially suggested that he used "Google Earth." He then quickly retracted this statement and suggested that he might have used his own network to estimate the area, but he refused to commit to a definitive answer. In my view, this inconsistent and shifting testimony further undermines BJ’s credibility and suggests that the figures were not based on any real or accurate assessment. The lack of a clear basis for the quantities listed in the quotation indicates that the figures were likely exaggerated or fabricated to inflate the total cost of the renovation project. As shown in the Prosecution’s table[note: 140] reproduced below, BJ’s quotation is replete with calculation errors which render it singularly unfit for purpose, as an estimate of the cost of renovation works as the whole objective was to end up with the figure of $464,000 at the bottom, regardless of whether the line items added up to this amount or not.

Item no.

Quantity

Unit Rate

Correct Amount

Amount in P52

2(a)

1,200

$500

$600,000

Nil

2(b)

1,050

$300

$315,000

$35,000

2I

1,500

$8

$12,000

$17,000

2(d)

200

$80

$16,000

$17,500

2I

1,200

$500

$600,000

$61,000

3I

500

$80

$40,000

$42,000

3(d)

3,800

$600

$2.28 million

$71,000

Total

-

-

More than $3.7 million

$464,000



(vi)     The Prosecution highlighted a major discrepancy in item 3(d) of the quotation.[note: 141] The unit rate quoted was $600 per square meter for a quantity of 3,800 square meters. This should result in a total amount of $2.28 million (3,800 sqm x $600 per sqm). However, the total amount quoted in the document was $71,000, which is grossly inaccurate given the aforesaid unit rate and quantity specified. During XE, BJ refused to acknowledge this apparent calculation error. Instead of admitting the mistake or providing a reasonable explanation, BJ was evasive and attempted to deflect the issue and his absurd explanation that the quoted amount of $71,000 was a "lump sum estimate based on Woodgrove Walk house area" contradicted the initially specified unit rate and quantity. In my view, BJ’s refusal to address the error directly raises concerns about his credibility and suggests a deliberate effort to avoid revealing the fraudulent nature of the quotation.

(vii)     Based on the evidence highlighted by the Prosecution, I rejected BJ’s explanations regarding the quotation in P52. I agreed with the Prosecution[note: 142] that P52 is a vague, lump sum quotation that lacks a credible basis and was not grounded in any actual assessment or calculation. The document contains no less than 17 specific line items, categorized into nine different categories. For several of these items, BJ quoted an exact quantity with specific measurements (such as square meters, numbers, or cubic meters) and included a unit rate. However, BJ was unable to provide any explanation for how these quantities or unit rates were derived, which, in my view, strongly suggests that he simply fabricated them.

(viii)    I rejected BJ’s submissions[note: 143] that P52 is a genuine document on which he expected the owner to negotiate before work commenced and that the $464,000 BJ received was merely repayment of loans owed by Sufandi, not a cashback payment from the sale of Woodgrove Walk. As pointed out by the Prosecution[note: 144], BJ did not undertake any preparatory work before creating the quotation. He did not meet with the owners of Woodgrove Walk, nor did he visit the property to assess its condition or determine the scope of renovation work required. Further, BJ's evasive answers when confronted with objective evidence during XE cast serious doubt on his credibility. When questioned about the basis for the figures in P52, BJ was unable to provide a clear or consistent explanation. The summation of the line items in the quotation, which resulted in an absurdly inflated total exceeding $3.7 million, further underscores the document's unreliability and suggests it was not meant to serve as a genuine estimate. The sheer excess of this amount, especially when compared to the purported renovation scope, highlights the fabricated nature of the document. The primary purpose of P52 was to justify and facilitate the payment of a $464,000 cashback to BJ, rather than to provide an accurate or reliable estimate for actual renovation work. The evidence supports the conclusion that P52 was concocted to create the appearance of a legitimate transaction while disguising the fraudulent nature of the payment involved. Therefore, I found that BJ’s explanations regarding P52 are not credible, and the Prosecution’s argument that the document was fabricated to facilitate a fraudulent transaction is well-founded.

(ix)     I accepted the Prosecution’s submissions[note: 145] that the quotation prepared by BJ was fake, which is consistent with Sufandi’s evidence where during XE, Sufandi admitted that there was never any intention to perform renovation work at Woodgrove Walk when he stated : “There’s no renovation, what. Did I say---I---I never said about renovation. I just say that payment must have third-party to a company. I never said that, their son, they want to do renovation.” Sufandi also acknowledged that the quotation was merely a device to facilitate the payment to EBS and admitted that it was "fake" with no possibility of being used for an actual renovation project at Woodgrove Walk. He explained that this was why the quotation contained numerous errors—it was prepared without any genuine intent to undertake renovation work at the property. However, Sufandi contradicted himself during RE the following day, asserting that: “The quotation is not fake, it’s a real quotation. It’s … requested by Mr. Rabu to renovate the house, because Rabu claims that the house is in need for renovation to sell the house at the higher price.”[note: 146] This starkly opposing position was presented without any explanation by Sufandi for his sudden reversal. On this issue, I completely rejected Sufandi’s evidence given during his RE as his abrupt change in stance, without any justification or reason, severely undermines the credibility of his testimony. The lack of consistency and the absence of a plausible explanation for his about-turn suggest that his RE evidence is unreliable. Therefore, I agreed with the Prosecution’s submission that the quotation was fabricated to facilitate a fraudulent transaction rather than to reflect a genuine intent to carry out renovation work at Woodgrove Walk.

(x)     BJ's failure to mention that the $464,000 payment was a repayment from Sufandi in his CAD statements raises serious suspicions about his transparency and honesty. This omission is particularly significant given the subsequent revelation during the trial about the actual nature of the payment. BJ's inconsistent statements regarding whether he conducted any research after his initial interview with the CAD further cast doubt on the credibility of his testimony. Initially, BJ claimed he had conducted research to understand the transaction better, but he later contradicted himself in his second statement to the CAD by denying any further research. I agreed with the Prosecution[note: 147] that the inexorable inference is that BJ's explanation of the $464,000 payment being related to a legitimate job quoted by the builder's side of his business is an afterthought, fabricated to rationalize the cashback payment from Hamzi and Rohana to BJ.

(xi)     While it is correct for BJ to argue that the only evidence directly implicating him in the conspiracy comes from Sufandi’s CAD statements, and that the testimonies of the Prosecution’s witnesses (such as the sellers, the buyer, the agents, the conveyancing secretary, or the bankers) do not directly implicate him[note: 148], I agreed with the Prosecution's position[note: 149] that this absence of direct implication was by design. BJ’s role was deliberately orchestrated to remain behind the scenes, thereby limiting his exposure and reducing the risk of being identified by any of the witnesses as the mastermind and financier of the conspiracy. BJ was effectively pulling the strings from the shadows, running the scheme covertly while directing Sufandi and Kok and financing the fraudulent activities. According to Sufandi, BJ was the one who taught him the mechanics of the cashback scheme and was responsible for deciding on the distribution of the $300,000 cashback obtained from Yeo. Sufandi stated that BJ allocated $50,000 to him, of which $40,000 was subsequently passed to Naseeruddin. Sufandi also implicated BJ as the financier of the conspiracy involving Saraca Terrace, stating that BJ provided the 1% option fee in cash and funded the BSD. This account is corroborated by the bank statements from Kok's account and Oasis Realtors’ account, which showed that Kok received $80,000 in cash, deposited it into his personal bank account, withdrew $72,000, and then deposited it into Oasis Realtors' account, from which the BSD was paid using a cashier’s order. Furthermore, Gobikrishna's testimony about how BJ wanted to execute a "property scam" involving an individual acting as a "dummy robot" to obtain a bank loan and subsequently declare bankruptcy also supports Sufandi's account of the cashback scheme taught by BJ. Naseeruddin, who applied for the mortgage bank loan for Saraca Terrace, defaulted on the loan, and was later declared bankrupt, fits the profile of the "dummy robot" BJ sought for this scheme. Thus, as pointed out by the Prosecution, it is not surprising that BJ was not directly identified by any of the Prosecution witnesses. The way the scheme was devised allowed BJ to remain in the shadows as the mastermind, orchestrating the fraudulent activities from behind the scenes while keeping his involvement concealed. Sufandi and Kok (for Saraca Terrace only) , who were more visibly engaged in the scheme, were the ones seen by others, thus shielding BJ from direct exposure.

(xii)     I accepted the Prosecution’s submissions[note: 150] that BJ’s claims of lack of involvement in the conspiracies related to Saraca Terrace and Woodgrove Walk were contradicted by the testimonies of Gobikrishna and Zulkarnain, and BJ failed to effectively counter or deny their evidence. Gobikrishna testified that BJ admitted to being involved in a scam and asked him to find individuals to act as "dummy robots" who would buy a house and declare bankruptcy if they could not repay the loan. This aligns with the experiences of Naseeruddin and Iswandi, as well as Sufandi’s account of the conspiracy in his CAD statements. BJ did not challenge Gobikrishna’s testimony, nor did he refute Gobikrishna’s claim that BJ asked him to prepare a quotation for Saraca Terrace intended to secure a loan. Similarly, Zulkarnain testified about a personal meeting with BJ, during which BJ discussed a conspiracy to inflate the price of Limbok Terrace and obtain a cashback from the seller. Zulkarnain also mentioned that Woodgrove Walk was purchased using the same fraudulent method. BJ did not cross-examine Zulkarnain on these points or address why Zulkarnain might be providing false evidence against him. In my view, BJ’s failure to contest these testimonies or provide explanations for the contradictions significantly undermines his credibility and supports the Prosecution's case regarding his involvement in the conspiracies.

(xiii)    Based on the trial evidence, I agreed with the Prosecution[note: 151] that BJ’s claims of non-involvement in the Saraca Terrace and Woodgrove Walk transactions are entirely untrue. The credibility of BJ's testimony is seriously undermined by Sufandi's CAD statements in P65, P66, P67, P78, and P79 wherein Sufandi had detailed BJ's role in orchestrating the scheme to defraud Maybank, portraying BJ as the mastermind who financed critical payments, such as the 1% option fee and the BSD. Additionally, Sufandi indicated that BJ received the lion’s share of the profit through the cashbacks paid by the sellers. In my view, the aforesaid Sufandi’s CAD statements strongly suggest that BJ was indeed the central figure in the fraudulent activities, contrary to his claims of ignorance and non-involvement.

(xiv)     Given BJ's failure to specifically address or rebut the Prosecution’s comprehensive submissions regarding his credibility, I found him not to be a credible or reliable witness. I rejected BJ's claims about his non-involvement in the Saraca Terrace and Woodgrove Walk transactions, as well as his defence, which I found to be untruthful and self-serving. I also rejected BJ’s evidence that sought to exonerate himself or any of the other APs from the charges against them. Specifically, I dismissed BJ’s arguments[note: 152] that it was unsafe to rely on Sufandi’s aforesaid CAD statements to convict him since PW1 Yeo, PW3 Adrian, PW4 Naseeruddin, and PW5 Angela Veronica either could not or did not identify BJ, and the oral testimonies of the other 4 APs also made no mention of BJ.

(b)      Kok Chiew Leong[note: 153] (“Kok”)

(i)     Kok's involvement in the Saraca Terrace transaction was multifaceted. He was asked by Sufandi to leverage his communication skills for negotiating a lower price for the property, given his proficiency in English and his ability to interact with Chinese parties. Despite a promise of an "ang pow," Kok did not receive any payment for his efforts in these negotiations. Kok participated in a key meeting at Greenwich V with Sufandi, Yeo, and Adrian, where Kok was involved in the discussions and negotiation process. Following this, Sufandi requested Kok to sign as the buyer's witness on the OTP, a task carried out at Gurdaib Singh's law firm, where Sufandi was employed. Additionally, Sufandi provided Kok with $81,600 in cash and instructed him to use it to pay the BSD. Kok agreed to assist with this payment, under the impression that Sufandi needed help due to being short-handed.

(ii)     Kok's defence against the allegations of involvement in the conspiracy to defraud Maybank centres on a series of specific denials. Kok denied any involvement in negotiating with PW1 Yeo and PW3 Adrian to inflate the price stated on the conveyancing documents. He denied dealing with BJ for the purchase of Saraca Terrace or having any knowledge of BJ's involvement in the transaction. Kok refuted the claim that he took $300,000 from PW1 Yeo. He denied referring the transaction to PW5 Angela Veronica or acting as the agent representing the buyer. Kok denied arranging for Lutfi Law to act for the buyer and claimed not to have liaised with or submitted anything to Lutfi Law. He stated he did not know PW4 Naseeruddin personally, nor did he deal with him for the purchase of Saraca Terrace. He also denied meeting Sufandi and Naseeruddin outside Saraca Terrace. Kok denied any involvement in the forgery of Naseeruddin's income documents. While acknowledging that his name and contact details are on the conveyancing file, Kok claimed not to understand why they are there. Kok asserts that the CAD statements made by Sufandi implicating him are fabrications, framing his defence around these specific denials.

(iii)     As there were no specific responses or rebuttals by Kok of the Prosecution’s comprehensive submissions on his credibility as a witness, I rejected Kok’s bare submissions[note: 154] that Kok was a truthful witness as his evidence on the stand was consistent, even in the face of intense cross-examination, and his testimony was largely consistent with his statements and any discrepancies were minor and did not substantively go towards the making out of the alleged offences. I agreed with the Prosecution[note: 155] that Kok is an untruthful witness who tailored his evidence in response to information revealed to him and his version of events is also internally inconsistent and ridden with lies based on his conduct as follows:

(1)       Kok deliberately misled the Investigating Officer (IO) and tailored his statements in response to the evidence presented. Kok initially denied any involvement in negotiating the sale price of Saraca Terrace and claimed not to know the purchase price. He also denied knowing Yeo, despite evidence showing that he had met with Yeo to discuss the sale price. Kok’s involvement was gradually revealed only after being confronted with evidence, such as Yeo’s identification of him. This piecemeal admission suggested that Kok was attempting to obscure his true level of involvement until it became untenable to continue denying it.[note: 156]

(2)       During XE, Kok attempted to justify his earlier lies in court by providing seemingly absurd explanations that contradicted his previous testimony. Kok's claim that he was unaware of the investigation’s nature and was concerned about breaching Council for Estate Agencies (CEA) regulations did not align with the clear information provided by the CAD at the outset of each statement that the investigation's focus was on a Penal Code offence. Kok had not previously mentioned concerns about CEA regulations in his earlier testimony. As pointed out by the Prosecution, Kok's belief that he had not committed any wrongdoing in negotiating the price should have logically led him to disclose his involvement rather than conceal it. [note: 157] In my view, the lack of a clear rationale for why Kok would hide his actions if he believed they were legitimate further undermined his explanations.

(3)       Kok only admitted to paying the BSD for Saraca Terrace after the IO presented concrete documentary evidence showing that the payment was made using a cashier's order from Kok’s company, Oasis Realtors. This indicates that Kok was initially reluctant to disclose this information. Kok’s admission came only after being confronted with undeniable evidence suggests that he was deliberately withholding information about his involvement. As pointed out by the Prosecution, this behaviour supports the idea that Kok was not initially forthcoming and only provided information when it became impossible to deny due to the irrefutable proof. [note: 158]

(4)       The Prosecution highlighted Kok's inconsistency regarding his memory of paying the BSD for Saraca Terrace. Kok’s ability to recall specific details during his testimony in 2023, including interactions with Sufandi, the signing of the OTP, and the BSD payment, contrasts sharply with his claim of forgetfulness when questioned by the CAD in 2016. Given Kok’s detailed recollection of the events in question, his claim of forgetting the BSD payment which was a significant financial transaction, appears implausible. As pointed out by the Prosecution, if Kok could remember other specific details, it is unlikely that he would have forgotten such a crucial part of the transaction. [note: 159] In my view, the inconsistency between Kok’s detailed account during his EIC and his claim of forgetfulness significantly undermines his credibility as it suggests that Kok's failure to remember the BSD payment may have been a deliberate attempt to evade responsibility or obscure his involvement.

(5)       Kok’s shifting testimony regarding the cash received and the payment of the BSD raises significant issues regarding his credibility. Kok initially claimed to have received exactly $81,600 in cash from Sufandi and used it to pay the BSD. When confronted with bank statements showing a $72,000 withdrawal and subsequent transactions, Kok changed his account, expressing uncertainty about whether the amount was cash or a bank transfer. The evidence shows that Kok withdrew $72,000 from his personal bank account, which was then deposited into Oasis Realtors' account and used to obtain a cashier’s order for $81,600. Kok's claim that the IO refreshed his memory by prompting him with figures, despite his prior statement that he had not read the statements, contradicts his earlier assertions. Kok’s statements to the IO did not include information about receiving cash from Sufandi at Gurdaib Singh’s law firm. Even after being prompted with figures, he still claimed he could not remember where he obtained the money to pay the BSD. His failure to mention this detail initially, and his subsequent contradictory claims, further point to an attempt to obfuscate his true involvement. [note: 160] In my view, these inconsistencies, combined with Kok’s attempt to fabricate or manipulate his testimony when confronted with evidence, seriously undermine his credibility as a witness.

(iv)     Kok’s inconsistent statements about whether he was promised a reward further undermine his credibility. Kok initially denied being promised any reward or fee for his assistance during his interview with the IO. During his court testimony, Kok stated that he was promised an ang pow for negotiating a lower sale price. When questioned about the inconsistency, Kok’s response—that if Sufandi had included chocolates in the ang pow, he would still accept it as a reward—was both illogical and unconvincing. This response suggests that Kok may have been trying to downplay or obscure the nature of the promised reward, rather than providing a coherent explanation.[note: 161] In my view, the discrepancy between Kok’s initial denial and his later admission, combined with the absurd justification provided during XE, undermines his overall credibility.

(v)     Kok claimed that he signed the OTP on 16 April 2014, when Sufandi asked him to do so. However, as pointed out by the Prosecution, the OTP would have expired on 26 March 2014 and by 16 April 2014, the OTP would no longer have been valid, making it impossible for Kok to have signed it as a witness on that date. [note: 162] In my view, the contradiction regarding the timing of the OTP signing significantly undermines Kok's credibility as a witness, reinforcing the conclusion that his testimony is not trustworthy.

(vi)     I rejected both Kok's and Sufandi's submissions[note: 163] that Kok played only a limited role in the sale of Saraca Terrace. Their assertion that Kok's involvement was merely to assist in negotiating the purchase price, due to a shared ethnic background with the seller, or to do Sufandi a favour by paying the stamp duty with cash provided by Sufandi, or to help with a dispute at Saraca Terrace after completion, is contradicted by the evidence from three key Prosecution witnesses. These witnesses presented a compelling case that Kok's role was much more significant and directly tied to the alleged conspiracy. The fact that Kok assisted in negotiations with the seller because both were Chinese does not necessarily limit his involvement as this ethnic connection does not negate the fact that he played a significant role in the transaction. The testimony from both Yeo and Adrian demonstrated that Kok was actively involved in negotiating the sale terms for Saraca Terrace. Both witnesses described how Kok made proposals to Yeo for the sale price stated on the OTP to be higher than the actual agreed price, with an arrangement for a cashback to be provided post-completion. This suggests Kok was not merely facilitating negotiations due to a shared ethnic connection but was deeply involved in structuring the deal in a way that facilitated the fraudulent scheme. Yeo's testimony further indicated that Kok demanded and received $300,000 in cash from him after the completion of the sale. The fact that Kok received such a substantial amount of money from Yeo post-completion indicates his active role in the conspiracy and contradicts his and Sufandi's claims of limited involvement. Angela Veronica's testimony reinforced Kok's significant involvement. She stated that she liaised with Kok throughout the sale process and that Kok effectively handled all arrangements on behalf of the buyer. This level of involvement goes beyond merely assisting with negotiations or logistical matters; it points to Kok being a central figure in managing and orchestrating the transaction. Kok failed to provide any reasonable explanation or rebuttal to the detailed evidence provided by these three Prosecution witnesses. Instead, he chose to ignore their testimonies, which implicated him in the fraudulent activities.[note: 164] In my view, the overall evidence from Yeo, Adrian, and Angela Veronica paints a clear picture of Kok’s significant and active participation in the Saraca Terrace transaction, contradicting his and Sufandi's claims of a limited role and the aforesaid evidence supports the Prosecution's case that Kok was involved in the conspiracy to defraud, rather than merely playing a peripheral or favour-based role.

(vii)     I rejected Kok's arguments[note: 165] that the Prosecution failed to adduce evidence on how the documents were forged since Tan Poh Geok was unable to state who had forged the documents; Sufandi claimed that he lied in his statement about BJ and Kok forging the documents; and CAD did not seize any devices to investigate how the forgery occurred. I agreed with the Prosecution[note: 166] that Kok’s aforesaid arguments are irrelevant to the charges at hand as the primary focus of the charges against the APs is not on the act or method of forgery itself but rather on the conspiracy to cheat and conspiracy to use as genuine forged income documents. The charges pertain to their involvement in a scheme to defraud, rather than the technical details of how the forgeries were produced. Furthermore, Sufandi's CAD statements[note: 167], which were admitted into evidence during the AH, directly implicated BJ or Kok as been responsible for forging the income documents. These statements provide sufficient grounds to infer Kok's involvement in the conspiracy, regardless of the exact process by which the documents were forged or the specific tools used. The inability of Tan Poh Geok to identify the person who forged the documents does not exonerate Kok, as the charge centres around his participation in the conspiracy rather than the physical act of forgery. Similarly, the absence of devices seized by CAD for forensic examination does not undermine the conspiracy charges, as the evidence against Kok comes from witness testimonies and circumstantial evidence rather than direct forensic proof of forgery. In my view, Kok's defence on the basis that the Prosecution has not proved the act or method of forgery is misconceived as the charges focus on the conspiracy to cheat and use of forged documents as genuine, and the trial evidence is sufficient to establish his involvement in the fraudulent scheme.

(viii)    I accepted the Prosecution’s submissions[note: 168] that Kok’s defence contained glaring inconsistencies on material aspects of the case which are material because they go towards Kok’s involvement in Saraca Terrace as he had tailored his evidence to such an extent that he was unable to keep his story straight as follows:

(1)       During his EIC, Kok initially denied having any interactions with Lutfi Law or submitting any documents to them. This claim directly contradicted the case presented by his counsel during the XE of PW5 Angela Veronica, as well as the statements made in the Case for the Defence (CFD) filed on Kok's behalf. During XE of PW5 Angela Veronica, Kok’s counsel suggested that Kok had indeed gone to Lutfi Law to hand over the OTP and the 4% cheque, directly implying Kok's involvement in these transactions. The CFD further confirmed this involvement, stating that Kok was instructed by Sufandi to pass the OTP to Lutfi Law and that Kok acted accordingly. These statements directly conflict with Kok’s denial during his EIC that he had any dealings with Lutfi Law or submitted any documents there. When confronted with these glaring inconsistencies, Kok's responses were evasive and deflective. Instead of addressing the contradictions head-on, Kok attempted to downplay them by suggesting that the statements made by his counsel during XE were merely hypothetical questions posed to PW5 Angela Veronica. However, this assertion was clearly inconsistent with the documented statements shown to him, further highlighting his reluctance to confront the discrepancies in his testimony. Regarding the inconsistencies in his CFD, Kok provided a series of conflicting explanations, none of which was satisfactory or credible. He first claimed that he had not seen the CFD at all, then shifted to suggesting that he might not have read it properly. Later, he stated that the specific sentence in question was unfamiliar to him and might have been forgotten due to memory lapses. Finally, during RE, Kok attempted to attribute the inconsistency to a miscommunication between himself and his counsel. These contradictory responses demonstrate a lack of reliability and honesty in Kok's testimony concerning his dealings with PW5 Angela Veronica and the submission of documents to Lutfi Law.[note: 169] In my view, Kok's inconsistent and evasive responses undermine his credibility as a witness and suggest that he may have been attempting to obscure the truth regarding his involvement in the conspiracy and transactions at Lutfi Law.

(2)       Initially, during his EIC, Kok denied knowing PW4 Naseeruddin personally and also denied ever meeting him alongside Sufandi outside Saraca Terrace. However, this position was contradicted during the XE of PW4 Naseeruddin. Kok's counsel put forward a suggestion that Kok had, in fact, gone to Saraca Terrace specifically to appease Naseeruddin. The assertion made by his counsel during XE indicates that Kok was involved in a situation where he needed to calm or negotiate with Naseeruddin, which would logically require some form of prior knowledge or relationship. When confronted with this inconsistency in his testimony, Kok provided several nonsensical and conflicting explanations. He suggested that he may have met PW4 Naseeruddin at Saraca Terrace, but only speculated about this possibility after hearing Naseeruddin's testimony, which he claimed "refreshed" his memory. Additionally, during RE, Kok further contradicted himself by stating that he had deduced that PW4 Naseeruddin must have been the individual he encountered outside Saraca Terrace. These inconsistent and speculative explanations lack credibility and suggest that Kok was attempting to fabricate or manipulate his testimony to align with the evidence presented against him.[note: 170] In my view, Kok's pattern of providing inconsistent and conflicting statements when faced with contradictory evidence reveals a tendency to tailor his testimony to fit the circumstances, rather than providing a truthful and consistent account of events and raise significant doubts about the veracity of Kok's testimony and suggest that he may have been deliberately misleading the court to distance himself from the conspiracy and any involvement with PW4 Naseeruddin.

(ix)     Based on the inconsistencies and contradictions highlighted by the Prosecution in Kok's testimony, I agreed with the Prosecution[note: 171] and found that Kok is not a credible or reliable witness. His efforts to downplay his involvement in the Saraca Terrace transaction, along with a consistent pattern of only admitting his involvement when directly confronted with incriminating evidence, significantly undermine his credibility. Furthermore, Kok's defence is fraught with internal inconsistencies, which he fails to address adequately. His explanations for these inconsistencies are inadequate, further detracting from his reliability as a witness. In my view, the overall pattern of Kok's behaviour during the trial—characterized by selective admissions and evasion when faced with contradictory evidence—demonstrates a clear lack of candour. His inconsistent statements regarding his dealings with the other parties involved, his knowledge and involvement in the transaction, and his recollections of events all suggest a deliberate attempt to mislead. I found that the glaring material inconsistencies within Kok's defence, along with his overall pattern of behaviour when testifying at the trial, undermine his credibility as a witness and are also detrimental and fatal to his defence.

(x)     Hence, I totally rejected Kok’s evidence given at the trial regarding his involvement in the Saraca Terrace transaction and found his defence based on the aforementioned evidence to be untruthful and self-serving. I also rejected any portion of Kok’s evidence that sought to exculpate himself and/or any of the other co-APs from the respective charges preferred against them. Specifically, I dismissed Kok’s defence of denial, in which he claimed that he did not engage in any conspiracy or have any knowledge of a conspiracy involving BJ and/or Sufandi; that he had no knowledge that PW4 Naseeruddin’s IRAS Notice of Assessment (NOA) and CPF statements had been forged; and that he played no part in the submission of PW4 Naseeruddin’s IRAS NOA and CPF statements to Maybank. I further disagreed with Kok’s submissions that his role was merely to assist in negotiating the purchase price with the seller; to do Sufandi a favour by paying the stamp duty on Sufandi’s behalf; and to assist with a dispute at 35 Saraca Terrace after the sale of the property had been completed at Sufandi's request. The trial evidence demonstrated that Kok’s involvement was more substantial and integral to the conspiratorial actions, contradicting his claims of limited participation. In my view, Kok’s attempts to portray his actions as innocuous and merely helpful gestures failed to account for the broader context and the evidence pointing to his more significant role in the fraudulent scheme.

(c)      Sufandi bin Ahmad[note: 172] (“Sufandi”)

(i)     In his EIC in DE-14, Sufandi attempted to shift the blame onto PW4 Naseeruddin, suggesting that Naseeruddin was responsible for orchestrating the frauds related to the properties at Saraca Terrace and Woodgrove Walk. Sufandi testified that in 2014, Naseeruddin expressed an interest in purchasing a property for investment purposes, with the intention of renting it out to generate rental income. Sufandi offered to assist Naseeruddin in finding a suitable property that matched his budget and investment criteria. After some consideration, Sufandi recommended the property at 35 Saraca Terrace, which he claimed was both within Naseeruddin's budget and met his requirements for an investment property. Sufandi then allegedly brought Kok into the process, tasking him with negotiating the sale price with the sellers of Saraca Terrace. Sufandi testified that he facilitated the transaction by issuing cheques for 1%, 4%, and 15% of the property's purchase price. He claimed that these cheques were issued on behalf of Naseeruddin and that Naseeruddin had reimbursed him with the equivalent amounts in cash. Sufandi also sought to distance himself from any direct involvement in the fraudulent submission of loan documents to Maybank, asserting that Naseeruddin handled all aspects of the loan paperwork on his own.

(ii)     In the case of Woodgrove Walk, following the purchase of Saraca Terrace, Naseeruddin expressed an interest in acquiring another property. Sufandi recommended Woodgrove Walk as a suitable investment. However, Sufandi denied having any direct knowledge of how the deal for Woodgrove Walk was finalized. Sufandi provided an account of how the EBS quotation in document P52 was prepared. According to Sufandi, he had a relationship with Haji Rabu, who was in the food catering business. Sufandi had engaged Haji Rabu's services for various weddings he organized. Over time, Haji Rabu encountered cash flow problems and accrued a substantial debt to Sufandi, amounting to between $400,000 and $500,000. Haji Rabu informed Sufandi that his son, Hamzi, was planning to sell the Woodgrove Walk property. Haji Rabu assured Sufandi that he would repay his debt from the sale proceeds of Woodgrove Walk. To facilitate this repayment, Haji Rabu proposed structuring the repayment as "an undertaking to pay for a renovation package" for Woodgrove Walk, which would appear legitimate on paper. Sufandi agreed to this arrangement. Subsequently, Sufandi requested BJ to prepare a quotation for $464,000, which was documented in P52. This quotation was then submitted to Hamzi's law firm, so that the $464,000 could be deducted directly from the sale proceeds of Woodgrove Walk and paid to EBS. The payment of $464,000 was intended to serve two purposes: firstly, as repayment for the loans that Sufandi had extended to Haji Rabu, and secondly, to cover sums owed by Sufandi to BJ.

(iii)     Regarding his confessions to the CAD, Sufandi claimed that by June 2016, he owed BJ over $300,000, a debt he had not repaid. Under pressure from BJ, who had threatened to sue him over the unpaid amount, Sufandi stated that he decided to frame BJ as the mastermind behind the frauds committed during the sales of Saraca Terrace and Woodgrove Walk.

(iv)     Sufandi's explanation for his failure to confront Naseeruddin in court and his decision not to reveal Naseeruddin’s involvement to the CAD is that he feared for his own safety and that of his family. To substantiate this claim, Sufandi presented two Facebook Messenger chat logs between himself and Naseeruddin as evidence (DE15 and DE16), along with a translated version (DE23).

(v)     I agreed with the Prosecution[note: 173] that Sufandi’s account of the events in DE-14, was exposed during XE to be an afterthought, fabricated and was untrue as the contents of DE-14 are completely contradicted by Sufandi’s CAD statements in P65, P66, P67, P78 and P79. Sufandi's inability to provide a credible explanation for these inconsistencies further weakened his case. His suggestion that the similarities between his statements and evidence of 4 unrelated Prosecution witnesses in court were merely coincidental lacks plausibility, especially considering the number of witnesses involved and the specific details of the discrepancies between Sufandi’s court testimony and his CAD statements which are in turn consistent with the evidence of the Prosecution witnesses. In this regard, I accepted the following illustrations given by the Prosecution to show the consistencies between Sufandi’s aforesaid CAD statements and the evidence of the Prosecution witnesses:

(1)       Sufandi's CAD statements in P65, P66, P67, P78 and P79 were materially consistent with the evidence provided by PW1 Yeo relating specifically to the price of $2.9 million written on the OTP being inflated, as the sellers had actually agreed to sell for a lower sum; the agreement that the cheques comprising 4% and 15% of $2.9 million were not to be encashed, and the collection of approximately $300,000 in cash from Yeo by Sufandi and Kok after completion of the transaction. Sufandi admitted during XE that he had lied to the CAD about these 3 points and claimed that it was a “sheer coincidence” that PW1 Yeo also told the exact same 3 lies to the Court.[note: 174]

(2)       There is consistency between Sufandi's CAD statements and the evidence provided by PW4 Naseeruddin on several key points regarding the property transaction that the property would be bought in Naseeruddin’s name; Naseeruddin need not pay any money; Naseeruddin would get money when the property was first bought; Naseeruddin would also get money if the property was later sold; a mortgage loan was taken from Maybank, using forged documents in Naseeruddin’s name; and Naseeruddin did not know that forged documents were used to get this loan. Both Sufandi and Naseeruddin stated that Naseeruddin received $40,000 for his role in the transaction. Sufandi's only explanation was that it was "sheer coincidence" that Naseeruddin told the same lies in Court as he did to CAD some years earlier.[note: 175]

(3)       Sufandi’s statements are likewise consistent with the evidence of Hamzi and Iswandi and when confronted with those consistencies, he attributed them too to coincidence.[note: 176]

(vi)     Sufandi did not put his case in DE-14 to the relevant witnesses as shown in the following illustrations given by the Prosecution:

(1)       During the trial, there were significant discrepancies between Sufandi's account in DE-14 and the evidence provided by PW1 Yeo. Sufandi claimed in DE-14 to have given cash sums totalling $116,000 and $435,000 to Yeo, which Yeo allegedly denied receiving during his testimony in court. However, despite this apparent contradiction, Sufandi did not confront Yeo about this issue during XE. When questioned about his failure to do so, Sufandi brushed off the omission, claiming a lack of understanding of trial procedures, despite Sufandi been repeatedly reminded by the Court of his duty to put his case to the witnesses. I agreed with the Prosecution that the exchange between Sufandi and the DPP at the trial showed that the contents of DE-14 are an afterthought as Sufandi had simply not yet thought up the version in DE-14, when the Prosecution witnesses were giving evidence and he concocted this version of events, after the Prosecution had closed its case, indicating a lack of credibility in his testimony.[note: 177]

(2)       Sufandi asserted that he did not name PW4 Naseeruddin as the orchestrator of the frauds in his CAD statements or during XE due to fear of harm to himself and his family. He pointed to Facebook chatlogs DE-15 and DE-16 as evidence of Naseeruddin's harassment and threats, claiming to have felt scared and threatened. However, as pointed out by the Prosecution[note: 178], it was revealed during his XE that Sufandi had previously informed CAD about Naseeruddin's involvement in a separate cheating offence, suggesting that he was not afraid to implicate Naseeruddin. Further, Sufandi's behaviour in the Facebook chatlogs contradicted his claims of fear, as he was seen threatening and mocking Naseeruddin. The fact that he was willing to confront Naseeruddin in other contexts and even mock him casts doubt on his claim of fear. In my view, Sufandi's inconsistencies and contradictions regarding his fear of Naseeruddin's reprisal severely undermine the credibility of his testimony.

(vii)     Sufandi had argued[note: 179] that he was harassed and threatened by PW4 Naseeruddin when he implicated the co-APs in P65, P66, P67, P78 and P79 as when he was first interviewed in prison, Sufandi told CAO Sharon Xie that he was afraid of someone and was unable to tell the truth, and wanted assurance that CAD would protect his family. CAO Sharon Xie ignored Sufandi’s concerns and did not record them in his statement. Having considered Sufandi’s submissions and the Prosecution’s reply, I agreed with the Prosecution[note: 180] that Sufandi’s story about being terrified of Naseeruddin is blatantly untrue. In his statements in DE18, DE19 and DE21 and P87[note: 181], Sufandi did not conceal Naseeruddin’s involvement in the Saraca Terrace transaction with no fear that Naseeruddin would harm his family. He had accused Naseeruddin of being involved in drugs; alleged that Naseeruddin was involved in a fraud company; suggested that Naseeruddin did not have the money to buy Saraca Terrace and he must have obtained a loan using forged documents; and accused Naseeruddin of being the buyer in a fraudulent cashback transaction. All of these completely undercut Sufandi’s case that he was hiding Naseeruddin’s involvement because he was scared. Sufandi's assertion that he was too scared to implicate Naseeruddin to CAD officers is also contradicted by his own statement dated 2 December 2016 in P67 wherein Sufandi provided detailed information about Naseeruddin's involvement in fraudulent activities related to a car loan which contradicts his narrative of being terrified of Naseeruddin.

(viii)    Sufandi had submitted[note: 182] that he did not cross-examine and put his case to Naseeruddin because he was afraid that Naseeruddin would harm his family. In particular, the DPP had identified Sufandi’s wife in Court when Naseeruddin was giving evidence which alarmed and angered Sufandi who immediately raised the issue of whether he can cross-examine Naseeruddin, as his wife was now in danger. Naseeruddin also lost his temper during cross-examination and Sufandi was scared by this and raised the issue of his wife’s safety to the Court. As Naseeruddin’s evidence was completed in just 2 days, there was very little time for Sufandi to recover from this shock and cross-examine him. I rejected Sufandi’s aforesaid submissions and agreed with the Prosecution[note: 183] that Sufandi appears to be opportunistically using an incident in Court, to substantiate a falsehood as his behaviour does not suggest that he was so alarmed or afraid about his wife’s safety that he was unable to cross-examine Naseeruddin on the following grounds:

(1)       Sufandi’s decision to bring his wife to Court, despite claiming fear for her safety, suggests that his claim might be more about leveraging the situation for a strategic advantage rather than a genuine concern. The discrepancy between his actions and his stated fears supports the view that his submission was opportunistic rather than truthful.

(2)       Sufandi's initial response, focusing on the inconvenience rather than the supposed fear for his wife's safety, suggests that his primary concern was not about protecting his wife, but rather about the logistical inconvenience of his wife having to come to court and then leave the courtroom after the Prosecution applied for his wife to step out of the court room.

(3)       Sufandi's failure to follow through on the Court's advice to make a police report before Naseeruddin’s XE began, despite being given the opportunity[note: 184], strongly contradicts his claim of being genuinely concerned for his wife's safety. As pointed out by the Prosecution, if Sufandi’s fear were sincere, it would be reasonable to expect him to take immediate action to protect his wife and his inaction further supports the view that his concern for her safety was not genuine.

(4)       Sufandi’s claim of not cross-examining Naseeruddin due to fear is inconsistent with his actual conduct in Court. By engaging in cross-examination for about 20 minutes from 3:22 pm to 3:43 pm and presenting broad propositions to Naseeruddin that Naseeruddin knew that: the income documents he used for the car loan were not genuine; submitted all three applications for the mortgage loan, car loan and cash loan singlehandedly; and initiated the entire scheme because he needed money[note: 185], Sufandi demonstrated no hesitation or fear in challenging Naseeruddin. Additionally, Sufandi’s decision not to cross-examine Naseeruddin on the details contained in his EIC in DE-14 is because he had not thought up the details yet and this strategy is consistent with his cross-examination strategy with other witnesses, such as PW1 Yeo[note: 186], indicating that his approach to cross-examination was consistent and not influenced by fear or concern for his wife's safety.

(ix)     I rejected Sufandi’s claims[note: 187] that the chatlogs of his conversations with Naseeruddin in DE15-17 showed that Naseeruddin was intimidating and threatening him wherein Sufandi was provoking Naseeruddin in these chatlogs in order to make him come out and face Sufandi who was not afraid that Naseeruddin would hurt him, but he was afraid for his family. I agreed with the Prosecution[note: 188] that an examination of the contents of the chatlogs in DE-15 and DE-16[note: 189] revealed Sufandi's own aggressive and threatening behaviour towards Naseeruddin. Instead of displaying fear, Sufandi mocks and threatens Naseeruddin openly, indicating that he did not take Naseeruddin's threats seriously, which undermines his claim of being terrified and unable to confront Naseeruddin in court.

(x)     I rejected Sufandi’s claims[note: 190] that he laughed during the trial because he felt the Prosecution was disrespecting his family and failing to empathize with their difficulties. I agreed with the Prosecution[note: 191] that Sufandi's behaviour during XE further weakens his claim of fear. While Sufandi appeared distraught and tearful during EIC when describing Naseeruddin's threats, he displayed a different demeanour during cross-examination, where his laughing and dismissing Naseeruddin's threats showed he appeared unaffected. This behaviour contradicted his earlier portrayal of fear, and he even conceded that he was the one actually threatening Naseeruddin, which is not the behaviour of a man so petrified that he was unable to put his case to Naseeruddin when the latter appeared in Court.[note: 192] In this regard, I rejected Sufandi’s submissions on his fear of Naseeruddin harming his family and particularly that :

“…all 12 of his statements contain untruths. It is unreliable and should not be believed. He accused persons whenever they were introduced during the interview and strung together a story with the evidence already shown to him whenever the IO told him that “investigations show that…” to make a believable story. He did this because he was fearful of Naseeruddin harming his family if Naseeruddin found out that Sufandi had exposed his participation in the property transactions to the CAD. He had already told his fears to the IO Sharon Xie when they came to interview him in prison and he wanted their assurance that his family would be protected, but she had ignored his worries and did not record this in his statement which he found unfair.”[note: 193]

(xi)     Sufandi's admissions in the chat exchanges with Naseeruddin in DE-16, where he acknowledges cheating banks and is prepared to serve a sentence for it[note: 194], directly contradict his defence in DE-14. These admissions strongly support the Prosecution's argument[note: 195] that Sufandi was involved in the fraudulent activities related to the Saraca Terrace and Woodgrove Walk sales. His aforesaid admissions significantly weaken his credibility and undermine his claims of innocence regarding the fraud.

(xii)     Sufandi and his co-APs have contended[note: 196] that Sufandi’s statements in P65, P66, P67, P78 and P79 should not be given any weight because these statements have been contradicted by other statements given by Sufandi and in Sufandi’s evidence at the trial (namely, DE18–22); Sufandi has retracted these statements in P65, P66, P67, P78 and P79 at trial as he had repeatedly testified that they are untrue; these were obtained by CAD through promises, and Sufandi did not tell the truth in these statements that Naseeruddin was the mastermind of the fraud committed on Maybank because he was afraid that Naseeruddin would harm his family.[note: 197] Having considered the submissions and replies of all the parties, I rejected all the Defence submissions and agreed with the Prosecution[note: 198] that unlike DE18–22 and Sufandi’s evidence in Court, Sufandi’s statements in P65, P66, P67, P78 and P79 contain the truth and should be given full weight for reasons as follows:

(1)       The Defence's argument that Sufandi's statements in P65, P66, P67, P78 and P79 are contradicted by his earlier statements and that he has retracted these statements in his testimony are valid points to consider. However, the Defence's contention that a witness' s evidence must be believed entirely or not at all is not a correct proposition of law since it is trite law[note: 199] that it is open to this Court to assess a witness’s testimony and accept some portions of Sufandi’s statements and reject the remainder of his evidence based on the trial evidence and corroborating factors. Further, as held in Jagatheesan s/o Krishnasamy v PP [2006] SGHC 129 at [82] to [87], an accused can be convicted solely upon his own confession even though that statement is subsequently retracted and a retracted confession of a co-accused implicating the accused in the offence may also be relied upon to establish the accused’s guilt, so long as the retracted statement was given voluntarily and was objectively reliable based on the circumstances of the case and the cogency of the statement itself, and where a reasonable and reliable explanation can be furnished for the retraction, the court should consider any explanation that the accused person gives for his change of position, but the explanation can be rejected if it is found to be untrue.

(2)       In the present case, while the fact that Sufandi's CAD statements in P65, P66, P67, P78, and P79 are contradicted by his earlier statements and retracted in his testimony does raise questions about their reliability, the corroborative evidence from numerous Prosecution witnesses and documentary evidence objectively supports Sufandi's account in his CAD statements. The consistency between Sufandi's account and the corroborative evidence suggests a basis for believing that his account is true. I disagreed with Sufandi that the alignment between his account and the evidence is merely coincidental. Therefore, while the contradictions in Sufandi's testimony are valid concerns, they do not necessarily undermine the credibility of his account entirely. The Court has the discretion to assess the evidence as a whole, considering both the strengths and weaknesses of Sufandi's testimony, along with the corroborative evidence, in determining the truthfulness of his account.[note: 200]

(3)       I found that the corroboration of Sufandi's CAD statements by multiple independent witnesses and documentary evidence significantly strengthens the credibility of his account in his CAD statements. Independent corroboration from witnesses who had no interaction with each other reduces the likelihood of fabrication or collusion. Sufandi's ability to provide a cohesive and consistent overview of the events, particularly in the Saraca Terrace transaction where his account was supported by both the sellers, buyer and agent, as well as relevant documents received by Maybank officers and executed by PW5 Angela Veronica, indicates a comprehensive understanding and supports the authenticity of his account. In my view, the consistency with accounts and documents from other parties involved suggests that Sufandi’s account in his CAD statements is likely to be true.

(4)       Sufandi's decision to stop protecting BJ after BJ failed to fulfil his promise to take care of Sufandi's family while he was in prison provides a plausible motive for Sufandi to reveal the truth to CAD. [note: 201] This suggests that Sufandi had a change of heart and chose to cooperate with the authorities due to feeling betrayed by BJ and wanting to set things right. I found that Sufandi's CAD statements in P65, P66, P67, P78, and P79 were given voluntarily, without any alleged promises or inducements, and were admitted as evidence as part of the Prosecution's case at the AH. Considering these factors, I took the view that Sufandi's account in these CAD statements as likely truthful and credible, as his voluntary cooperation and motive for revealing the truth add weight to the authenticity of his statements.

(5)       It is highly unlikely for Sufandi to fabricate consistent and coherent information over 11.5 hours of interviews spanning from June 2016 to April 2019. The complexity of the topics discussed and the sheer volume of questions would make it nearly impossible to maintain a fabricated story without inconsistencies. The detailed and consistent responses provided, especially regarding specific documents and events, further support the credibility of Sufandi's account in his CAD statements. The fact that his statements were recorded across multiple interviews adds another layer of complexity, making it improbable for him to maintain a fabricated story over such a long period. Given these considerations, I found Sufandi's aforesaid account to be credible and based on his genuine recollection and understanding of the events discussed during the CAD interviews.

(xiii)    As I have found at the AH that Sufandi's CAD statements in P65, P66, P67, P78, and P79 were given voluntarily, without any alleged promises or inducements from CAO Hong or CAO Chew, and admitted these statements as evidence as part of the Prosecution's case, I rejected Kok’s arguments[note: 202] that Sufandi's statements were obtained through promises made by CAD that Sufandi would become a Prosecution witness if he gave statements incriminating his co-APs or that he would be allowed to travel if he did so.

(xiv)     I rejected Sufandi’s explanation[note: 203] regarding the quotation in P52, which he claimed was created so that Rabu could repay an existing loan owed to Sufandi, and in turn, the amount would be set off against an existing loan Sufandi owed BJ. I agreed with the Prosecution[note: 204] that this explanation was illogical because it would imply the quotation was false and no actual renovation work was planned or carried out. Sufandi’s admission during XE that the quotation in P52 was fake and only intended to be shown to lawyers contradicted BJ's claim that P52 was a genuine document and Sufandi’s sudden change in position during re-examination, without providing any explanation, further undermined his credibility regarding P52's authenticity. Further, Sufandi's aforesaid explanation regarding the quotation in P52 appears to be an afterthought as there was no mention of the explanation in his earlier statements prior to DE-14 and during the trial. Moreover, Sufandi did not question Rohana (who is Rabu’s daughter-in-law) about his dealings with Rabu which suggests that his explanation was not part of his original account and was introduced later without any basis.

(xv)     I disagreed with Sufandi’s submissions[note: 205] that PW16 Iswandi’s evidence has no impact because he did not identify Haron, Juma’at, or Sufandi, and because Iswandi might have associated "Fandi" with "Sufandi" due to the similarity in their names. I agreed with the Prosecution[note: 206] that Iswandi did identify Sufandi as "Fandi" from a photograph in P68 during his evidence which is consistent with PW19 Shirley's testimony and corroborated Iswandi's identification of Sufandi as "Fandi". Despite Iswandi's inability to explain the basis for his identification, the association between "Fandi" and "Sufandi," and Sufandi’s admission of corresponding with Shirley as "Fandi" provided a reasonable basis for the identification. Further, Iswandi’s role in the Woodgrove Walk transaction, which was on the buyer's side, meant that he would not have interacted with Haron and Juma’at, who were on the seller's side. Therefore, Iswandi's failure to identify Haron and Juma’at does not detract from his identification of Sufandi or the credibility of his evidence.

(xvi)     In the light of the above, I rejected the Defence's contention that Sufandi’s CAD statements in P65, P66, P67, P78, and P79 are unsafe for conviction of the APs and should be given little or no weight. I agreed with the Prosecution[note: 207] that Sufandi's CAD statements are true and objectively corroborated by other witnesses and documentary evidence. I took the view that Sufandi's defence and his account of events in DE-14, as well as his claims of being terrified of Naseeruddin based on DE-15 and DE-16, are afterthoughts, blatantly untrue, and lacking credibility due to inconsistencies and contradictions in the light of the inconsistencies and contradictions highlighted above. Additionally, I found Sufandi’s portrayal of fear of Naseeruddin, based on DE-15 and DE-16, as unconvincing and contradicted by his own actions and behaviour.

(xvii)    Sufandi failed to respond or rebut the Prosecution’s comprehensive submissions on his credibility as a witness. I disagreed with the Defence's submissions that Sufandi’s testimony in court is consistent and reliable and I found that Sufandi is not a credible or reliable witness. I rejected Sufandi’s evidence given at the trial regarding his involvement in the Saraca Terrace and Woodgrove Walk transactions, as well as his defence based on the aforesaid evidence, as untruthful and self-serving. I also rejected any of Sufandi's evidence that sought to exonerate himself and/or any of the other co-APs from the respective charges preferred against them.

(xviii)    Specifically, I rejected Sufandi’s submissions[note: 208] in relation to himself, BJ and Kok[note: 209] that :

(1)       he did not know that the documents were false or forged; had not submitted the loan application to Maybank; and did not abet by engaging in a conspiracy with either BJ or Kok.

(2)       all his incriminating evidence against BJ was not true as his evidence at trial, documentary or oral evidence, does not show any connection between BJ and the Saraca Property transaction, and BJ was not involved in the falsification of the income related documents of Naseeruddin, or in the submission of the falsified documents for the Maybank loan application concerning Naseeruddin, and there was no conspiracy between Sufandi, BJ or Kok to do any of these acts.

(3)       all his incriminating evidence against Kok was not true and Kok was not involved in the falsification of the income related documents of Naseeruddin, or in the submission of the falsified documents for the Maybank loan application concerning Naseeruddin, and there was no conspiracy between Sufandi, BJ or Kok to do any of these acts.

(4)       all his incriminating evidence against BJ concerning Shirley was not true as BJ did not know Shirley and did not liaise with Wong, Gopal & Rai concerning the Woodgrove Walk property, and Shirley also did not help BJ by expediting cases or recommending people to borrow from BJ.

(5)       all his incriminating evidence against BJ regarding the Woodgrove Walk property transaction was not true as BJ was not involved in the falsification of the income related documents of Iswandi; in the submission of the falsified documents for the Maybank loan application concerning Iswandi, and there was no conspiracy between Sufandi and BJ to do any of these acts.

(6)       PW20 Hong’s evidence which showed that investigations produced corroborated evidence in Sufandi’s CAD statements in P65, P66, P67, P78 and P79 and which indicated the involvement of the APs in the Saraca Terrace and Woodgrove Walk property transactions is not corroborative evidence, but actually coincidences and the Prosecution is stretching and stringing these coincidences together with the hope of putting together “corroborated evidence” to prove that the APs are conspiring to do wrongful acts in these transactions.

(I)   APPLICABLE LEGISLATION & CASELAW

14     The elements of cheating under s 420 PC are : (a) The victim must have been deceived; (b) The victim must be induced to deliver property to any person by manner of the accused’s deception although the inducement does not need to be the sole or main reason for the delivery of property; (c) The accused must act with a dishonest or fraudulent intention and dishonest intent means an intent to cause a wrongful gain or a wrongful loss.[note: 210] In short, deception must have been practised on the victim with inducement such that the victim delivered a property to any person and a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property.[note: 211]

15     The elements of using as genuine a forged document under s 471 PC are: (a) The document in question is forged; (b) The accused used the document; (c) The accused used it as a genuine document; (d)The accused knew, or had reason to believe, that the document was forged.[note: 212]

16     The elements of abetment by conspiracy are: (a) The accused must engage or conspire with one or more other persons; (b) The conspiracy (or agreement) must be to do the thing abetted; (c) An act or illegal omission must take place in pursuance of the conspiracy, in order to do the thing abetted.[note: 213]

17     The essence of a conspiracy is an agreement. In most cases, the actual agreement would have taken place in private. Direct evidence will rarely be available. Thus, one method of proving a conspiracy is to show that the words and actions of the parties were concerted in the pursuit of a common object – giving rise to the inference that their actions must have been coordinated by arrangement beforehand.[note: 214] The conspiracy can be inferred from the surrounding circumstances, including the conduct of parties before and after the alleged commission of the crime[note: 215]. Although there must be knowledge of a common design, it is not necessary that all the conspirators should be equally informed as to the details as it is enough that all of them are aware of the general purpose of the plot[note: 216]. There is no need for the Prosecution to prove: (a) a physical meeting of the conspirators; (b) that the conspirators remained in each other’s company throughout or at all; (c) that there was communication between each conspirator and every other; or (d) that the conspirators knew all the details of the unlawful plot.[note: 217]

(J)   COURT’S FINDINGS OF FACTS

18     For the reasons given in section (H) above, I found BJ, Kok and Sufandi not to be reliable or credible witnesses and totally rejected their respective testimonies given at the trial and/or in their CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78, and P79) as untruthful and self-serving which sought to exonerate or exculpate themselves and/or their co-APs from the charges preferred against them. I rejected all their factual submissions and defences based largely on their respective testimonies given at the trial and/or in their CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78, and P79). Having found the Prosecution witnesses and Sufandi’s CAD statements in P65, P66, P67, P78, and P79 to be credible and truthful, I accepted their evidence on the factual issues and made the following findings of fact in respect of the Saraca Terrace and Woodgrove Walk transactions, which would satisfy and prove the elements of the charges against BJ, Kok and Sufandi and render their defences invalid[note: 218]:

Findings of facts for Saraca Terrace transaction

(a)     Sufandi and Kok persuaded and convinced PW1 Yeo and his wife, PW2 Lim, who were the sellers of Saraca Terrace, to artificially inflate the price stated on the OTP as $2.9 million, and cannot encash the 4% option exercise fee cheque of $116,000 and 15% downpayment cheque of $435,000, and to arrange for a "cashback" whereby after the completion of the sale, PW1 Yeo gave $300,000 to and as demanded by Kok who was accompanied by Sufandi when he visited Saraca Terrace and had told PW1 Yeo that his property was worth only $2 million.

(b)     Sufandi persuaded PW4 Naseeruddin to use his name and act as the buyer for Saraca Terrace, apply for a mortgage loan from Maybank without requiring any upfront payment, and gave Naseeruddin $40,000 in cash for his role after the completion of the sale.

(c)     Kok's involvement in the Saraca Terrace transaction was extensive and intricate. His actions in providing instructions to PW5 Angela Veronica as the conveyancing secretary; amending the completion amount to reflect that the buyer did not have to pay 15% of the price on completion; referring the case to Lutfi Law Corporation; providing the OTP and the 4% cheque issued by Sufandi to PW5 Angela Veronica; paying the BSD; and arranging for Naseeruddin to sign the Mortgage Instrument at the law firm, all point towards Kok’s pivotal role in facilitating the transaction on behalf of the buyer. The complexity and depth of Kok's involvement with PW5 Angela Veronica indicate a high level of coordination and collaboration with Sufandi and BJ as it is improbable that Kok could have played such a pivotal role without prior discussions and agreements regarding the transaction details and how it was to proceed.

(d)     Sufandi’s submission of forged documents of IRAS Notice of Assessment and CPF statements in PW4 Naseeruddin's name was aimed at deceiving Maybank into believing that Naseeruddin had a significantly higher annual income of $310,300 in 2013 than he actually did so as to secure a mortgage loan approval from Maybank under false pretenses. Maybank's approval and disbursement of $2,320,000 based on these forged documents indicate that Maybank officers were deceived by Sufandi's deceptive actions.

(e)     Kok had collected $300,000 from the seller, PW1 Yeo, after the completion of the transaction, with a subsequent transfer by Kok of this amount to BJ, who then distributed it among PW4 Naseeruddin, Kok himself, Sufandi, and BJ. This indicates a coordinated effort to share the proceeds of the fraudulent scheme among Kok, Sufandi and BJ as the conspirators and reinforces their conspiracy in the fraudulent transaction.

(f)     Kok initially received $80,000 in cash from BJ, deposited it into his personal bank account on 26 March 2014, and later on 16 April 2014 withdrew $72,000 from his personal account. He then deposited this $72,000 into the bank account of Oasis Realtors, of which he is the sole authorized signatory. Subsequently, Kok withdrew $81,600 from the Oasis Realtors bank account and used it to purchase a Cashier's Order for the same amount, payable to the Commissioner of Stamp Duties to cover the BSD for the Saraca Terrace transaction.

(g)     There was an orchestrated scheme with careful coordination involving Sufandi, BJ, Kok in the Saraca Terrace transaction with the ultimate goal to defraud Maybank and obtain a $300,000 cashback. The scheme involves several steps of convincing the sellers, PW1 Yeo and PW2 Lim, to agree to an inflated price on the conveyancing documents while accepting a lower sum for selling the house; persuading PW4 Naseeruddin to lend his name to the transaction and apply for a loan; cheating Maybank by submitting forged income documents to secure mortgage loan approval and disbursement of $2,320,000; deceiving PW5 Angela Veronica, the buyer's conveyancing secretary, into believing that 15% of the price stated on the OTP had been paid to the sellers before completion and conveying the false information by PW1 Yeo to his own lawyers. After completion of the transaction, Kok took $300,000 from PW1 Yeo and passed it on to BJ, who distributed the funds among PW4 Naseeruddin, Kok, Sufandi, and himself. The scheme required careful coordination and advance planning among Sufandi, BJ, and Kok to ensure that each of them played their respective roles effectively and achieved the desired outcome of defrauding Maybank and obtaining the cashback.

(h)     Sufandi’s CAD statements (in P65, P66 and P87) which corroborate and reinforce the aforesaid factual findings provided a detailed account of the conspiracy between BJ, Kok and Sufandi to cheat Maybank using forged income documents and indicate that BJ taught Sufandi a scheme to convince the sellers to inflate the selling price of the Saraca Terrace property in order to secure a larger mortgage loan from the bank and also agree to facilitate a cashback after the sale was completed. [note: 219] The aforesaid CAD statements are in turn fully and materially corroborated by the aforesaid factual findings as these statements are consistent with :

(i)       PW1 Yeo and PW3 Adrian’s account on who had explained the scheme to inflate the sale price of Saraca Terrace and where this took place, as Sufandi had told CAD that Kok first explained the scheme to PW3 Adrian and subsequently explained it to PW1 Yeo at another meeting at Greenwich V.[note: 220]

(ii)       PW1 Yeo’s evidence on how the cheques were used where PW1 Yeo first received a post-dated cheque for $29,000 being 1% of the sale price, but subsequently received the same amount in cash. When PW1 Yeo received the 4% and 15% cheques, he was told not to encash them, as these cheques were given to PW1 Yeo by Sufandi to show that 19% of the sale price had been paid when it had in fact not been so paid, as admitted by Sufandi.[note: 221]

(iii)       PW1 Yeo’s evidence that he gave $300,000 in cash to Kok and Sufandi, and Sufandi also stated that the money received was split between BJ, Kok and himself.[note: 222]

(iv)       PW4 Naseeruddin’s evidence that he was persuaded by Sufandi to be the named buyer for Saraca Terrace with Sufandi promising him money; his income documents of IRAS Notice of Assessment and CPF statements submitted to Maybank were forged; he did not communicate with the bank officer; and he attended to a Maybank branch to sign the Mortgage Facility Letter on Sufandi’s instructions, as Sufandi had admitted that he was the one who communicated with the bank officer and submitted the forged income documents.[note: 223]

(v)       Evidence adduced at the trial that either BJ or Kok had prepared the forged income documents.[note: 224]

(vi)       PW4 Naseeruddin’s evidence that he was told by Sufandi to proceed to Lutfi Law to sign the Mortgage Instrument, and on how he used the forged income documents to purchase a car.[note: 225]

(vii)       PW5 Angela Veronica and her interactions with Kok in that Kok acted as the housing agent representing the buyer and instructed PW5 Angela Veronica on the purchase of Saraca Terrace, and Kok paid the BSD with the money from BJ.[note: 226]

(viii)       PW9 Wong Jing Ling Jerlyn, the Maybank bank officer’s evidence that she received the application form and income documents via email.[note: 227]

Findings of facts for Woodgrove Walk transaction

(a)     Haron and Juma'at convinced PW6 Rohana and Hamzi, the sellers of Woodgrove Walk, to state an inflated price of $3.55 million (instead of the actual selling price of around $2.4 million) on the conveyancing documents and pay a "cashback" to EBS after completion.

(b)     Sufandi recruited PW16 Iswandi to pose as the buyer of Woodgrove Walk and apply for a mortgage loan in Iswandi’s name.

(c)     PW19 Shirley Goh, acting as the buyer's conveyancing secretary, followed Sufandi's instructions regarding the sale and purchase of Woodgrove Walk.

(d)     PW14 Rajendran, acting as the sellers' solicitor, was instructed to draw up a letter of authority instructing Maybank to pay $464,000 to EBS based on a quotation prepared by BJ to support this payment.

(e)     Maybank, through its officers, was deceived into believing that Iswandi had an annual income of $471,600 in 2013. This deception was carried out using forged income documents of IRAS Notice of Assessment, CPF statements and bank statements in Iswandi’s name, and submitted by Sufandi. Based on the evidence of PW11 Mohamed Pauzi Ali, a DBS Treasures POSB Bank Statement in P44 was forged. As a consequence of this deception, Maybank was dishonestly induced into approving a mortgage loan and disbursing $2,840,000 to PW16 Iswandi.

(f)     Haron instructed PW6 Rohana to prepare a cashier's order for the payment of $464,000 to EBS after completion, and later either Haron or Juma'at collected a cheque for the same amount from Rohana, which ultimately ended up in BJ's personal bank account.

(g)     Haron and Juma'at were acting as agents for Hamzi and PW6 Rohana respectively, in the sale of the Woodgrove Walk property. They collaborated in various aspects of the sale, including discussing details with Hamzi, arranging viewings for potential buyers, and handling paperwork. Juma'at took responsibility for handing over the 1% OTP fee and signing the OTP, even though the signature block belonged to Haron. Haron was involved throughout the conveyancing process, including the signing of the instruments of transfer, the letter of authority and the EBS quotation. Haron provided specific instructions to Rohana regarding payments to be made upon completion of the sale, including arranging a cashback payment to EBS.

(h)     PW16 Iswandi's evidence revealed a conspiracy between Sufandi and BJ to defraud Maybank. This conspiracy involved the use of forged documents of IRAS Notice of Assessment, CPF statements and bank statements. Sufandi recruited Iswandi to act as a "dummy buyer" of the Woodgrove Walk property and Iswandi's role was to apply for a mortgage loan with Maybank using false identities and forged documents as part of the fraudulent scheme orchestrated by Sufandi and BJ.

(i)     PW19 Shirley's evidence regarding the conveyancing process of Woodgrove Walk indicates that Sufandi played a significant role in coordinating the process. Sufandi was deeply involved and took responsibility for paying the BSD and served as the primary contact for the person whom PW19 Shirley believed to be PW16 Iswandi.

(j)     After the sale of Woodgrove Walk was completed on 9 October 2014, $464,000 was deposited via cheque into the UOB Corporate Account of EBS which was withdrawn on 13 October 2014 and deposited into BJ's personal UOB Savings account. This showed that BJ received a cashback of $464,000 earned from the proceeds of cheating Maybank. The actions of the involved parties, the sellers (PW6 Rohana and Hamzi), the buyer (PW16 Iswandi), the property agents (Haron and Juma'at), the sellers' solicitors (PW14 Rajendran and PW15 Mdm Prasanna), the buyer's conveyancing secretary (PW19 Shirley), and the Maybank officers, were all coordinated by Sufandi and BJ as part of their conspiracy to achieve the end goal of paying $464,000 to BJ.

(k)     The stated sale price was false and Haron and Juma’at knew this as Haron had proposed to Hamzi and PW6 Rohana, with Juma’at’s knowledge, to agree to mark up the sale price for Woodgrove Walk with the stated price of $3.55 million, but the actual selling price was around $2.4 million.

(l)     Sufandi’s CAD statements (in P65, P66, P78 and P79) which corroborate and reinforce the aforesaid factual findings showed that there was a scheme between Sufandi and BJ on inflating the stated sale price on the conveyancing documents of Woodgrove Walk in order for PW6 Rohana and Hamzi as the sellers to give a cashback to the buyers and agree to pay back cash to Sufandi and BJ after the sale. [note: 228] The aforesaid CAD statements are in turn fully and materially corroborated by the aforesaid factual findings as they are consistent with :

(i)       The evidence of Hamzi and PW6 Rohana as the sellers that Haron and Juma’at were acting as their agents for the Woodgrove Walk transaction.[note: 229]

(ii)       Hamzi’s account that Haron had given him an OTP in which the sale price was marked up and Haron had told him that he had to pay $464,000 after completion for renovation.[note: 230]

(iii)       The evidence of Hamzi and PW6 Rohana on why there were two OTPs, one in P34 which was signed by the sellers, and the pages in P38 which was eventually submitted to the bank.[note: 231]

(iv)       The evidence adduced at trial on how the sum of $464,000 was extracted from Hamzi and PW6 Rohana and paid to EBS.[note: 232]

(v)       PW16 Iswandi’s evidence that PW16 Iswandi’s role was to put down his name as the buyer of Woodgrove Walk in exchange for a sum of money corroborated his evidence that he did not communicate with a Maybank officer, except to meet him to sign a Letter of Offer and that he did not communicate with any conveyancing secretary, as Sufandi had admitted that he was the one who communicated with PW13 Ammar Salim and PW19 Shirley for the transaction. This is also consistent with PW13 Ammar Salim’s evidence that he corresponded with phone number xxxx, and the email of xxxx, for the Woodgrove Walk transaction and corroborated PW19 Shirley’s evidence that she dealt with Sufandi for the transaction.[note: 233]

(vi)       PW16 Iswandi’s evidence that he went to a law firm in Chinatown to sign the Mortgage Instrument.[note: 234]

(m)     Sufandi’s CAD statements (in P65, P66, P78 and P79) also explained how forged income documents in Iswandi’s name were used to cheat Maybank[note: 235], and showed that Haron and Juma’at knew about the plan to inflate the price and obtain cashback, but they did not know about getting the mortgage loan using forged documents.[note: 236]

(K)   CONCLUSION FOR THE TRIAL

19     Having given due consideration to the merits of the parties’ submissions and having properly weighed and assessed the strengths and weaknesses of the parties’ submissions based on the trial evidence, I found that the compelling picture from the relevant testimonies of the Prosecution witnesses, as well as the relevant objective documentary evidence is that BJ, Kok and Sufandi had conspired with one another to commit the offences as stated in their respective charges (except that Kok was only involved in the Saraca Terrace offences), and the aforesaid testimonial and documentary evidence is consistent with the direct evidence of the conspiracies detailed in Sufandi’s CAD statements in P65, P66, P67, P78 and P79. I totally rejected as untruthful and self-serving the testimony of BJ, Kok and Sufandi given at the trial and/or in their respective CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78 and P79) regarding their respective non-involvement, as well as that of the other co-APs in the Saraca Terrace and Woodgrove Walk transactions, and also their respective defences based on the aforesaid testimony and their respective CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78 and P79). Having regard to the applicable laws on cheating, use of forged document, fraudulent execution of a deed of transfer and abetment of conspiracy as applied to my above factual findings, I found that the Prosecution has proved its case that :

(a)     The actions of all the persons involved in the sale of Saraca Terrace, namely the sellers (PW1 Yeo and PW2 Lim), buyer (PW4 Naseeruddin), property agent (PW3 Adrian), Maybank officers (PW9 Wong, PW10 Leow and PW12 Tay), conveyancing secretary (PW5 Angela Veronica), were all carefully coordinated to achieve the object of cheating Maybank with the end goal for BJ to obtain $300,000 from the proceeds of cheating, out of which BJ paid PW4 Naseeruddin, Kok, Sufandi and himself. Such careful and intricate coordination were carried out by Sufandi, BJ and Kok who had all conspired and planned everything in advance where Sufandi and Kok first convinced PW1 Yeo and his wife, PW2 Lim, who were the sellers of Saraca Terrace, to inflate the price on the OTP and then to agree to a "cashback" after the sale.

(b)     The actions of all the persons involved in the sale of Woodgrove Walk, namely the sellers (PW6 Rohana and Hamzi), buyer (PW16 Iswandi), property agents (Haron and Juma’at), Maybank officers (PW13 Ammar and PW10 Leow) and conveyancing secretary (PW19 Shirley), were carefully coordinated by BJ and Sufandi to achieve the common object of cheating Maybank with the end goal for BJ to make off with $464,000. Central to that goal were inflating of the price to $3.55 million on the conveyancing papers and the payment of a $464,000 cashback to EBS. As Haron and Juma’at were intimately involved in both the price inflation and the cashback, they knew that the price of $3.55 million on the transfer instrument was false.

(c)     The actions of all the parties involved in the sale of Saraca Terrace and Woodgrove Walk are wholly consistent with the direct evidence of a conspiracy found in Sufandi’s CAD statements (in P65, P66, P78, P79 and P87) which showed the details of the conspiracy to cheat Maybank and to use forged documents for loan applications, and which are in turn fully and materially corroborated by the objective documentary and testimonial evidence of the Prosecution witnesses as adduced by the Prosecution at the trial. In particular, the respective evidence of PW22 Gobikrishna and PW24 Zulkarnain further corroborated Sufandi’s account of the conspiracies in his aforesaid CAD statements.

(d)     Specifically in respect of Saraca Terrace, as regards the charges under s 420 r/w s 109 PC, I found that the Prosecution has proved that Sufandi, BJ and Kok conspired to cheat Maybank and deceive Maybank into believing that PW4 Naseeruddin had a 2013 annual income of $310,300, so as to dishonestly induce Maybank into approving and delivering a $2,320,000 mortgage loan to PW4 Naseeruddin, for the purchase of Saraca Terrace, and these acts were done by Sufandi, BJ and Kok pursuant to this conspiracy. As for the charges under s 471 r/w s 109 PC, I found that the Prosecution has proved that Sufandi, BJ and Kok conspired to use as genuine, forged IRAS Notice of Assessment and CPF statements as income statements in PW4 Naseeruddin’s name as part of his mortgage loan application to Maybank for Saraca Terrace and the aforesaid forged documents were so used.

(e)     Specifically in respect of Woodgrove Walk, as regards the charges under s 420 r/w s 109 PC, I found that the Prosecution has proved that Sufandi and BJ conspired to cheat Maybank and deceive Maybank into believing that PW16 Iswandi had a 2014 annual income of $471,600 so as to dishonestly induce Maybank into approving and delivering a $2,840,000 mortgage loan to PW16 Iswandi, for the purchase of Woodgrove Walk, and these acts were done by Sufandi and BJ pursuant to this conspiracy. As for the charges under s 471 r/w s 109 PC, I found that the Prosecution has proved that BJ and Sufandi conspired to use as genuine, forged IRAS Notice of Assessment, CPF statements and bank statements as income documents in PW16 Iswandi’s name as part of his mortgage loan application to Maybank for Woodgrove Walk and the aforesaid forged documents were so used.

20     Accordingly, I rejected the submissions of BJ, Kok and Sufandi for their respective acquittals as I was satisfied that the Prosecution has proved all the charges preferred respectively against each of them beyond a reasonable doubt, and I found BJ, Kok and Sufandi guilty and convicted each of them of all their respective charges.

(L)   SENTENCING CONSIDERATIONS, PRECEDENTS & PRINCIPLES

21     I have carefully considered the sentencing submissions and mitigation plea of all the parties[note: 237] before deciding on the appropriate individual sentence and aggregate or global sentence to be imposed on BJ, Kok and Sufandi for their respective offences[note: 238] for the reasons set out below.

Little to no mitigating factors

22     I agreed with the Prosecution that as BJ, Kok and Sufandi are not first-time offenders with little to no mitigating factors, they are not entitled to receive the usual sentencing discounts given to an offender ’s plea of guilt to recognise the saving of state resources as they have all been found guilty following a lengthy trial spanning 54 days across two calendar years from 2022. BJ and Sufandi who have been found guilty of seven charges each in respect of two property transactions that took place in different periods of time cannot be considered as first-time offenders as it is trite law that an offender who faces numerous charges cannot be considered a first-time offender. BJ also had a conviction for online gambling and had been fined for this offence. As for Sufandi, I rejected his submission to treat all his charges as 1st time offences as he did not have any previous criminal record in view of the numerous charges against him. As regards Kok, he has been found guilty of one count of s 420 read with s 109 PC on 20 February 2024 in DAC-933268-2019.

23     Regarding BJ’s medical issues of diabetes, hypertension and cardiac issues, there were no medical or other relevant reports stating that he cannot have them treated with the prescribed medication while serving his sentence in prison. Hence, these medical issues are not relevant to BJ’s sentencing as a ground for the exercise of judicial mercy or as a mitigating factor.[note: 239]

Cheating offences

24     I accepted the Prosecution’s submissions on the following sentencing considerations as relevant and applicable to the individual sentences to be imposed on the APs, BJ, Kok and Sufandi for their respective cheating charges where the prescribed punishment under s 420 PC read with s 109 PC for each charge is an imprisonment for a term which may extend to 10 years, and shall also be liable to a fine:

(a)     As correctly submitted by the Prosecution, the offences committed by the APs involved a sophisticated scheme that deceived Maybank into disbursing multi-million dollar mortgage loans based on forged income documents. This fraudulent activity undermined the integrity of Maybank and posed significant risks to the broader financial system. The APs exploited the trust and due diligence processes of Maybank by submitting forged income documents, which manipulated the bank’s lending criteria and led to the disbursement of substantial funds under false pretences. This deception undermined the bank's operational integrity and financial stability. General deterrence must be the dominant sentencing consideration with severe sentences to be meted out by the Courts for offences that affect the delivery of financial services[note: 240], as the financial burden resulting from mortgage fraud extends beyond the banking industry, ultimately impacting the general public, especially the home-owning community, through higher administrative costs, more onerous application processes, and higher interest rates.[note: 241]

(b)     As highlighted by the Prosecution, the following aggravating factors warrant the imposition of stiff sentences to be imposed on the APs :

(i)       The APs' fraudulent actions led to significant financial losses for Maybank, with the bank disbursing two mortgage loans to the “buyers” of properties at Saraca Terrace and Woodgrove Walk, totalling $5,160,000. Despite recovery efforts, only about 65.3% of the loan disbursed was recovered, resulting in an unmitigated loss of $1,791,915.04, which included a $579,582.69 loss for Saraca Terrace and a $1,212,332.35 loss for Woodgrove Walk. No restitution was made by the APs, exacerbating the financial damage inflicted on Maybank. As it is trite law that the amount cheated and the unmitigated loss are primary factors in determining the appropriate sentence, the significant financial losses necessitate severe penalties to reflect the gravity of the offences and serve as a deterrence to others. The higher unmitigated loss associated with Woodgrove Walk warrants a stiffer sentence compared to Saraca Terrace.

(ii)       The sentence to be imposed on the APs must reflect the planning and premeditation employed, their respective roles and culpability in the enterprise, and their motivation for personal gain. Based on my factual findings for the trial on the respective roles of BJ, Kok and Sufandi, I found that the entire criminal enterprise was carefully orchestrated by BJ and executed by Sufandi and Kok for the Saraca Terrace transaction and by BJ and Sufandi for the Woodgrove Walk transaction. BJ was identified as the brain, mastermind and financier behind the conspiracy to cheat Maybank, while Sufandi and Kok (which concerned only Saraca Terrace) were active participants instrumental in executing BJ’s master plan[note: 242] and were intimately involved in the conspiracy with Sufandi been present right from the conception of the premeditated conspiracy which is an aggravating factor.[note: 243] I agreed with the Prosecution that a harsher sentence on BJ vis-à-vis Sufandi and Kok for the Saraca Terrace transaction and BJ vis-à-vis Sufandi for the Woodgrove Walk transaction is justified based on BJ’s role[note: 244]. I also found that the premeditated and planned offending of BJ, Sufandi and Kok for the Saraca Terrace transaction, and of BJ and Sufandi for the Woodgrove Walk transaction, are aggravating factors deserving of a stiff sentence. [note: 245] As correctly pointed out by the Prosecution, the offending of the APs was meticulously planned, premeditated, and executed jointly, requiring a high level of communication to coordinate the actions of four different groups of people, displaying their deliberate and calculated offending.

(iii)       The sentence to be imposed on BJ, Sufandi and Kok must take into account their respective personal gain or benefit and the Court must be harsh in censuring them for making such ill-gotten gains as an aggravating factor.[note: 246] As highlighted by the Prosecution, a total of $764,000 was received collectively as “cashback” from the sellers of Saraca Terrace and Woodgrove Walk, with the pool of money split and BJ receiving the lion share of their pot, according to Sufandi’s CAD statements in the Prosecution’s table reproduced below:

AP

Personal Benefit

Saraca Terrace34

Woodgrove Walk

BJ

$59,400 to $69,40035

$307,76236

Sufandi

$10,000

$10,000

Kok

$70,000 to $80,000

-



(c)     It is trite law that an offender who has a more culpable role in a criminal enterprise should be dealt with more severely than an accomplice who played a lesser role[note: 247] and while those of similar culpability should receive similar sentences, those of greater culpability are punished more severely[note: 248]. Under the principle of parity in sentencing, where two or more offenders are to be sentenced for participation in the same offence, their sentences should be the same, unless there are relevant differences in their responsibility for the offence[note: 249].

(d)     In PP v Iswandi Bin Yahya [2021] SGDC 17 (“Iswandi”), the offender who was the “dummy buyer” for Woodgrove Walk pleaded guilty and was sentenced to 24 months’ imprisonment for his role. His sentence was upheld on appeal and the Court recognised that his culpability was low.

(e)     Based on my factual findings regarding the roles played by BJ and Sufandi in the Woodgrove Walk transaction, I agreed with the Prosecution's position that the sentences for BJ and Sufandi must be more severe than Iswandi's. BJ and Sufandi had significantly more extensive involvement in the criminal conspiracy, with Sufandi even recruiting Iswandi to act as a "dummy buyer." Iswandi, having pleaded guilty, was afforded a reduction in his sentence as a result of his plea, while BJ and Sufandi opted to claim trial, which extended the proceedings over 54 days in court. In light of these considerations, I accepted the Prosecution's argument for an uplift in sentence by 3 to 5 years. Accordingly, as proposed by the Prosecution, the sentence for BJ on the cheating charge for the Woodgrove Walk transaction in DAC-933254-2019 should be between 6 and 7 years' imprisonment while for Sufandi, the sentence for his role in the same transaction in DAC-933284-2019 should be between 5 and 6 years' imprisonment. Regarding the Saraca Terrace transaction based on my factual findings regarding the roles played by BJ, Sufandi and Kok, I agreed with the Prosecution that a lower uplift is warranted. Therefore, as proposed by the Prosecution, the sentence for BJ in DAC-933252-2019 should be between 5 and 6 years' imprisonment, and for Sufandi and Kok, the sentences for their respective cheating charges in DAC-933283-2019 and DAC-933266-2019 should be between 4 and 5 years' imprisonment.

(f)     Based on the comparisons to the sentencing precedents of Cheong and Winnie Goh, as referenced in the Prosecution's submissions[note: 250], I rejected Kok’s submissions and agreed with the Prosecution that the sentences to be imposed on BJ, Sufandi and Kok for the cheating offences are appropriately aligned. The present case, as highlighted by the Prosecution, exhibits aggravating factors beyond those in Cheong. It involved a more complex scheme that required meticulous planning and coordination among multiple groups, and it was more syndicated with a larger number of individuals involved compared to Cheong, which only had three conspirators. Furthermore, the financial scale of the fraud in the present case ($5.16 million cheated and an unmitigated loss of $1.79 million) significantly exceeds that in Cheong ($1.54 million cheated and an unmitigated loss of $676,320), except that Kok’s offence concerned only Saraca Terrace and the loss involved was $579, 582.69. These factors underscore the severity and complexity of the present offences, warranting sentences that reflect the increased gravity and impact of the crimes committed.

(g)     In contrast to Winnie Goh, where the scheme involved genuine buyers and inflated income documents to meet loan criteria, the present case as highlighted by the Prosecution is more brazen as the income documents were entirely forged, and the "dummy buyers" had zero income to support their supposed property purchases. The entire transaction was a mere vehicle devised to facilitate the APs' wrongful gain. Moreover, Maybank's unmitigated loss in the present case amounted to about $1.79 million out of the about $5.16 million disbursed, reflecting a significant financial impact, except that Kok’s offence concerned only Saraca Terrace and the loss involved was $579,582.69. In contrast, despite Winnie Goh involving the disbursal of over $62 million across 179 mortgage loans, the unmitigated loss was lower at $687,788.37. This difference underscores the severity and audacity of the present scheme, where the fraudulent activities led to a higher financial loss despite a lower overall loan amount disbursed compared to Winnie Goh.

(h)     Unlike Cheong and Winnie Goh where the offenders had pleaded guilty and hence entitled to sentencing discounts, BJ, Kok and Sufandi had claimed trial which took over 54 days and hence a higher sentence than Cheong and Winnie Goh is justified.

(i)     I have considered the case of Leck Kim Koon v PP [2022] 3 SLR 1050 cited by counsel for BJ and I took the view that the aforesaid case is irrelevant and clearly distinguishable from the present case as the offender’s medical condition was a relevant mitigating factor in the reduced sentence imposed on him with no conspiracy and no actual loss caused to the banks where the sum of moneys involved in the offender’s six charges totalled up to US$622,783.95 as compared to about SGD 5.16 million involved in BJ’s case.

(j)     I have also considered the case of PP v Go Boon Chai [2012] SGDC 71 cited by counsel for Kok and I took the view that the aforesaid case is irrelevant and clearly distinguishable as unlike the present case, the offender had pleaded guilty with sentencing discount accorded to him (with the maximum sentence for a cheating offence been 7 years at that time instead of the present maximum sentence of 10 years) and the total amount involved was $2.56 million with no quantification of the actual loss suffered by the bank as compared to about SGD 2.32 million involved with an unmitigated total loss of $579, 582.69 for Saraca Terrace in the present case. As for the other cases of PP v Toh Thong Lim [2009] SGDC 505, PP v Law Kok Leong [2009] SGDC 504 and PP v Toh Beng Hua [2009] SGDC 506 cited by counsel for Kok where each offender was fined SGD 10,000, I found that they are also irrelevant and clearly distinguishable as unlike the present case, they were plead guilty cases and did not involve banking institutions where large sums of money were involved and defrauded in an extensive conspiracy concerning the sale of 2 landed properties (except that Kok was only involved in Saraca Terrace).

Forged documents offences

25     The offences involving forged documents, carrying a potential punishment of imprisonment for up to 4 years under s 471 PC read with ss 465 and 109 PC, are undeniably serious. I agreed with the Prosecution that the primary sentencing consideration in this case should be general deterrence, particularly given that the offences were committed against public authorities. The forged documents included those purportedly issued by the IRAS and the CPF, which were submitted to defraud Maybank as a financial institution. The involvement of public authorities and financial institutions in the present offences elevates their severity and necessitates a sentence that emphasises general deterrence. Such a sentence is crucial for sending a strong message that dissuades others from engaging in similar fraudulent activities. Moreover, the premeditated and carefully planned nature of these offences, rather than being spontaneous acts, serves as a significant aggravating factor in determining the appropriate sentence. This deliberate and calculated planning highlights the gravity of the criminal conduct, necessitating a sentencing approach that adequately reflects the seriousness of these offences.[note: 251]

26     Based on my factual findings for the trial, it is clear that the offences involved the creation and submission of forged documents, including IRAS NOA, CPF Contribution statements, and payslips of dummy buyers, which were created by BJ or Kok and submitted to Maybank by Sufandi. These fraudulent submissions were made using email accounts created in the names of the dummy buyers. Additionally, for the Woodgrove Walk transaction, Sufandi submitted a forged DBS Treasures Bank statement to Maybank. The coordination among BJ, Sufandi and Kok (for Saraca Terrace only) was not only extensive but also meticulously planned. They successfully secured the cooperation of dummy buyers, who permitted their names to be used for the transactions and would ultimately bear responsibility for loan repayments. Furthermore, the trio (Kok for Saraca Terrace only) coordinated with sellers to inflate sale prices and sign transfer documents reflecting false sale prices, often involving agents like Haron and Juma’at in these deceptive acts. The level of coordination and the deliberate use of forged documents and false information in these transactions highlight the premeditated and carefully orchestrated nature of the offences. These factors serve as significant aggravating factors in determining the appropriate sentences. The planned and calculated execution of these fraudulent activities underscores the gravity of the criminal conduct, warranting severe penalties to reflect the seriousness of the offences and to serve as a deterrence to others.

27     Based on the sentencing precedent of Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946 referred to by counsel for Kok[note: 252] which involved forgery relating to a credit company as a financial institution and in the absence of any other relevant sentencing precedents cited by the parties, I accepted the Prosecution’s submission for a sentence of at least 6 months imprisonment to be imposed for each s 471 PC r/w s 465 PC charge respectively for BJ in DAC-933256-2019, DAC-933257-2019, DAC-933261-2019, DAC-933262-2019 and DAC-933263-2019; for Sufandi in DAC-933286-2019, DAC-933287-2019, DAC-933288-2019 and DAC-933289-2019; and for Kok in DAC-933269- 2019 and DAC-933270-2019.

28     I have considered the cases of Lin Lifen v PP [2016] 1 SLR 287 (where the offender had pleaded guilty to using a fake university certificate for an application for permanent residence) and Xia Qin Lai v PP [1999] 3 SLR(R) 257 (where the offender had pleaded guilty to using a false passport as genuine) cited by counsel for BJ. I took the view that these 2 cases are irrelevant and clearly distinguishable as unlike the present case, they were plead guilty cases and did not involve banking institutions where large sums of money were involved and defrauded in an extensive conspiracy concerning the sale of 2 landed properties. Hence, I rejected BJ’s submission for a sentence of 2 months’ imprisonment each for the s 471 r/w s 465 PC offences faced by him. I also rejected Sufandi’s submission for a sentence of between 3 to 6 months’ imprisonment each for the s 471 r/w s 465 PC offences faced by him.

Consecutive sentences and totality

29     I rejected the Prosecution's submissions that the sentences for BJ and Sufandi for their respective two cheating offences should run consecutively. I agreed with counsel for BJ that his charges comprised two groups: one for the Saraca Terrace enterprise, where all the charges form part of the same single transaction, and the other for the Woodgrove Walk enterprise, where all the charges form part of the same single transaction. There is a need to avoid a crushing sentence when ordering consecutive sentences from the cheating charges in these two groups, as submitted by BJ’s counsel which I agreed with.

30     I took the view that running the sentences for the two cheating offences consecutively would result in up to 13 years' imprisonment for BJ and 11 years' imprisonment for Sufandi leading to their respective aggregate sentences violating both limbs of the totality principle. The first limb of the totality principle examines whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed.[note: 253] The most serious individual offence for both BJ and Sufandi is cheating, which provides for a term of imprisonment of up to 10 years. In my view, the Prosecution’s proposed aggregate sentences of between 11 and 13 years for BJ and between 9 and 11 years' imprisonment for Sufandi would exceed by 2 to 4 years (as admitted by the Prosecution) the normal sentencing range of between 6 years’ and 7 years’ and 9 months’ imprisonment based on the sentencing precedents cited by the Prosecution for a similar cumulative unmitigated loss of S$1.79 million[note: 254]. The aforesaid Prosecution’s proposed aggregate sentences would in fact even exceed by 1 to 3 years the maximum permissible sentence of 10 years for the most serious individual cheating offence committed by BJ and Sufandi. For Sufandi, even if a lower sentence of 9 years within the Prosecution’s proposed aggregate sentence of between 9 and 11 years' imprisonment were to be imposed on him, it would still be close to the maximum permissible sentence of 10 years.

31     If the overriding concern of the first limb of the totality principle is to ensure proportionality, then it would be incongruous to take as a yardstick for comparison a maximum permissible sentence which would usually be reserved for the most serious offenders and which may have no correlation to the actual circumstances in which the offender who is before the court committed the offence in question.[note: 255] The second limb of the totality principle considers whether the effect of the sentence on the offender is crushing and not in keeping with his past record and his future prospects.[note: 256] While the offending of BJ and Sufandi is severe considering the duration and scale of the offending and involves a significant amount of money cheated from Maybank involving two properties and multiple individuals, I was not satisfied that the present case warranted an aggregate sentence for each of them that exceeds the normal sentencing range of between 6 years’ and 7 years’ and 9 months’ imprisonment based on the sentencing precedents cited by the Prosecution for a similar cumulative unmitigated loss of S$1.79 million, and also the maximum permissible sentence of 10 years for the most serious individual cheating offence committed by each of them, as this would be crushing and not in keeping with the past records and future prospects of BJ and Sufandi.

32     I also took the view that since BJ and Sufandi each faced two categories of offences under s 420 PC read with s109 PC and s 417 PC read with s 465 PC and s 109 PC, their sentences must properly reflect the overall criminality of their conduct. To ensure that BJ and Sufandi are each punished and serve one sentence for each of the two different categories of offences, one sentence from each category (under s 420 PC read with s109 PC and under s 417 PC read with s 465 PC and s 109 PC) should run consecutively.

33     I rejected BJ’s submission for an aggregate or global sentence of between 36 to 40 months’ imprisonment as it would be manifestly inadequate in view of his role in the 2 conspiracies based on my factual findings for the trial. I agreed with the Prosecution that since the two cheating offences were committed at different times, the sentences for each of the two cheating offences committed by BJ and Sufandi must adequately and appropriately reflect their overall criminality in cheating Maybank twice for an aggregate amount of about $5.16 million. Hence, within the sentencing range as proposed by the Prosecution of between 5 and 6 years' imprisonment and between 6 and 7 years' imprisonment respectively for the two cheating offences committed by BJ, I would impose an appropriate sentence at the top end of 6 years’ imprisonment for DAC-933252-2019 and 7 years’ imprisonment for DAC-933254-2019. Pursuant to s 307(1)[note: 257] CPC, I ordered that BJ’s sentence of 7 years’ imprisonment for DAC-933254-2019 is to run consecutively with the sentence of 6 months for the forged documents charge in DAC-933256-2019, resulting in an aggregate or global sentence of 7 years and 6 months’ imprisonment for him.

34     In view of Sufandi’s role in the offences based on my factual findings for the trial, I rejected his submissions for 3 years’ imprisonment for the cheating charge in DAC-933283-2019 and 2 years imprisonment for the cheating charge in DAC-933284-2019, as well as for his sentence for the aforesaid 2 cheating charges to run consecutively with an aggregate sentence of between 5 and 6 years’ imprisonment. Within the sentencing range as proposed by the Prosecution of between 4 and 5 years’ imprisonment and between 5 and 6 years’ imprisonment respectively for the two cheating offences committed by Sufandi, I would impose an appropriate sentence at the top end of 5 years’ imprisonment for DAC-933283-2019 and 6 years’ imprisonment for DAC-933284-2019. As required by s 307(1) CPC, I ordered that Sufandi’s sentence of 6 years’ imprisonment for DAC-933284-2019 is to run consecutively with the sentence of 6 months for the forged documents charge in DAC-933286-2019, resulting in an aggregate or global sentence of 6 years and 6 months’ imprisonment for him.

35     As Kok faces only one cheating charge and taking into account that he was not involved in the Woodgrove Walk transaction where the loan disbursed and loss sustained was significantly higher than in the 35 Saraca Terrace transaction, I would impose on him an appropriate sentence of 4 years’ imprisonment at the lowest end of the sentencing range of 4 and 5 years’ imprisonment as proposed by the Prosecution. Pursuant to s 307(1) CPC, I ordered that Kok’s sentence of 4 years’ imprisonment for his cheating charge is to run consecutively with the sentence of 6 months’ imprisonment for the forged documents charge in DAC-933269-2019, resulting in an aggregate or global sentence of 4 years and 6 months’ imprisonment for him. In this regard, I rejected Kok’s submissions for a 18-months’ imprisonment sentence for his cheating charge as it would be manifestly inadequate in view of his role in the conspiracy with BJ and Sufandi based on my factual findings for the trial which showed that Kok’s culpability was much higher than Iswandi who had merely lent his name to the scheme, interacted with the Maybank staff in signing the requisite financial documents and with the conveyancing solicitors at their office to sign the completion documents, albeit the loss caused in Iswandi‘s case amounted to $1,212,332.35 whereas in relation to Kok’s offences, the loss caused was less than half of that at $579,582.69.

36     In evaluating Kok's submissions, I firmly rejected his argument that the offences in DAC-933269-2019 (forgery of the IRAS Notice of Assessment), DAC-933270-2019 (forgery of the CPF statement), and DAC-933266-2019 (cheating) are part of a single offence, thereby limiting the application of s 307 CPC in view of s 308[note: 258] CPC and necessitating that only one punishment be imposed. In my view, Kok's submissions are fundamentally flawed, as these offences are clearly distinct and separate. The cheating offence and the forgery offences are distinct criminal acts that fall under different sections of the Penal Code, and one is not a constituent or ingredient of the other. The forgery offences relate to the use of forged documents to facilitate the broader conspiracy to cheat Maybank, whereas the cheating charge encompasses a wider range of deceitful conduct aimed at defrauding the bank. Furthermore, Kok's involvement extended beyond merely using forged documents. He actively participated in various aspects of the conspiracy, including meeting with the seller Yeo, collecting cashback, and giving detailed instructions to the conveyancing secretary, Angela Veronica, on managing the transaction to avoid breaching conveyancing timelines. This broader pattern of conduct further distinguishes the cheating offence from the forgery offences. Contrary to Kok's submissions, the acts referred to in DAC-933269-2019 and DAC-933270-2019 (the submission of the forged NOA and CPF statement to Maybank) do not constitute a single transaction giving rise to several offences of a different character. Instead, these offences represent separate and distinct criminal acts that justify separate punishments. Therefore, I ruled that separate sentences can and should be imposed for each of Kok’s 3 offences with at least two of the sentences to run consecutively under s 307 CPC in that Kok’s sentence of 4 years’ imprisonment for his cheating charge is to run consecutively with the sentence of 6 months’ imprisonment for the forged documents charge in DAC-933269-2019, resulting in an aggregate or global sentence of 4 years and 6 months’ imprisonment to be imposed on him. In arriving at this decision, I took into account and applied the clear judicial guidance on the proper interpretation and application of ss 307(1) and 308 CPC from the following cases referred to by Kok and the Prosecution:

(a)     In Lim Woon Cheng Anthony v PP [1997] 3 SLR(R) 123, the High Court held at [44] that s 308 CPC is applicable only where there is a repetition in the same transaction of several acts, each amounting to the same offence. It does not apply where, in a single transaction, it may give rise to several offences of a different character, each complete in itself and distinct from the other.

(b)     In Shouffee, the High Court held (at [24]) that “as long as the charges have been correctly framed, each separate charge will have been brought in respect of a ‘distinct offence’ for the purposes of s 307(1) CPC”.

(c)     In Xia Qin Lai v PP [1999] 3 SLR(R) 257, the High Court held (at [18]) that distinct offences were offences that were “not in any way interrelated” and even if they were, they could also still be distinct depending on the circumstances of the case, i.e., a series of offences of the same or similar character or arising from the same transaction could also be distinct.

(d)     In Zeng Guoyuan v PP [1997] 2 SLR(R) 999, the High Court laid down the correct approach to ascertain the applicability of s 308 CPC, i.e. to determine whether separate offences arises out of one transaction or whether the entire transaction is in reality one offence. Where it is the former, s 308 CPC is not applicable and the issue is which sentences are to run concurrently/consecutively under s 307 CPC. Thus, ss 307 and 308 CPC work in tandem and do not circumscribe the operations of either provision. Where there are distinct offences, s 307 CPC operates, where the offences are not distinct, s 308 CPC operates.

(e)     In Tham Wing Fai Peter v PP [1988] 1 SLR(R) 349, the High Court at [66] held in obiter that s 308 CPC would apply if the appellant was charged with forging the company seal and the director’s signature, in addition to forging the share certificates since the share certificates necessitated the affixing of the director’s signature and seal. This is unlike the present case where the use of forged documents were the way in which the APs chose to support their false representation to Maybank in respect of their conspiracy to cheat. They could have very well cheated Maybank without the use of the forged income documents but since they have chosen to do so, they must be punished for it. Further, the two forged document offences are also distinct from each other, since they concern the use of different forged documents. In my view, Kok’s submissions that unlike Kok’s case, the offender in Tham Wing Fai Peter was not charged, convicted and/or sentenced separately for using the forged documents to dishonestly induce banks into disbursing the loan are matters for the Public Prosecutor to decide and do not support Kok’s interpretation and application of s 308 CPC to his case.

(M)   CONCLUSION ON SENTENCE

37     Having regard to above sentencing considerations, precedents and principles well as the forgoing reasons on the appropriate individual and global sentence to be imposed on BJ, Kok and Sufandi for the offences committed respectively by each of them, I sentenced each of them as follows:

(a)      BJ’s individual and aggregate sentence

Charge

Offence

Sentence of Imprisonment

DAC-933252-2019

s 420 r/w s 109 PC

6 years

DAC-933256-2019

s 471 r/w s 465 r/w s 109 PC

6 months (consecutive)

DAC-933257-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933254-2019

s 420 r/w s 109 PC

7 years

(consecutive)

DAC-933261-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933262-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933263-2019

s 471 r/w s 465 r/w s 109 PC

6 months

Aggregate or global sentence

7 years and 6 months imprisonment

 



(b)      Kok’s individual and aggregate sentence

Charge

Offence

Sentence of imprisonment

DAC-933266-2019

s 420 r/w s 109 PC

4 years

(Consecutive)

DAC-933269-2019

s 471 r/ws 465 r/ws 109 PC

6 months

(Consecutive)

DAC-933270-2019

s 471 r/ws 465 r/ws 109 PC

6 months

Aggregate or global sentence

4 years and 6 months’ imprisonment

 



(c)      Sufandi’s individual and aggregate sentence

Charge

Offence

Sentence of Imprisonment

DAC-933283-2019

s 420 r/w s 109 PC

5 years

DAC-933286-2019

s 471 r/w s 465 r/w s 109 PC

6 months (consecutive)

DAC-933287-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933284-2019

s 420 r/w s 109 PC

6 years

(consecutive)

DAC-933288-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933289-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933290-2019

s 471 r/w s 465 r/w s 109 PC

6 months

Aggregate or global sentence

6 years and 6 months imprisonment

 



38     In my view, the above global sentence which I have imposed on BJ, Kok and Sufandi respectively was not manifestly excessive or inadequate, but wholly appropriate and commensurate with the nature and extent of their respective culpabilities, and was a sufficient deterrent sentence tempered with proportionality without the effect of a crushing sentence.

[note: 1]S 420 of the Penal Code (Chapter 224, 2008 Revised Edition) :“Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.”S 109 of the Penal Code (Chapter 224, 2008 Revised Edition):“Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for punishment of such abetment, be punished with the punishment provided for the offence.”

[note: 2]S 471 of the Penal Code (Chapter 224, 2008 Revised Edition) states:“Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or forged electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”S 465 of the Penal Code (Chapter 224, 2008 Revised Edition) states:“Whoever commits forgery shall be punished with imprisonment for a term which may extend to 4 years, or with fine, or with both.”

[note: 3]PS1.

[note: 4]PS1 at [34].

[note: 5]PS2.

[note: 6]See Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 6198 (“Chai Chien Wei Kelvin”)

[note: 7]See Sulaiman Bin Jumari v PP [2021] 1 SLR 557 (“Sulaiman”),

[note: 8]NE, Day 23, 21 Nov 2022 at pp 1 to 121; Day 24, 22 Nov 2022 at pp 1 to 44; Day 24, 22 Nov 2022 at pp 46 to 76; Day 25, 23 Nov 2022 at pp 6 to 63, pp 64 to 82; and NE, Day 24, 24 Nov 2022 at pp 1 to 138.

[note: 9]NEs, Day 30 (15 June 2023), 69:20 – 22 (PW22 EIC).

[note: 10]as laid down in Haw Tua Tau v PP [1981-1982] SLR(R) 133 (“Haw Tua Tau”) at [15].

[note: 11]as laid down in Gunasegaran S/O Pavadaisamy v PP [1997] 2 SLR (R) 946 at [42] to [44]; Seaward III Frederick Oliver v PP [1994] 3 SLR(R) 89 at [28]; definitions of the terms ‘dishonestly’ and ‘fraudulently’ under ss 24 and 25 of the Penal Code.

[note: 12]as set out in PP v Yeo Choon Poh [1993] 3 SLR(R) 302 at [20]; Nomura Taiji & Ors v PP [1998] 1 SLR(R) 259 at [110]; and Er Joo Nguang and another v PP [2000] SGHC 60

[note: 13]In P65, P66 and P78.

[note: 14]See Exhibits P11, 13, 14 , 15, 85 and PS1 – Statement of Agreed Facts (“SOAF”) at [6b.]

[note: 15]In addition to the oral evidence adduced at the trial, see also the various conditioned statements in PCS-2 of PW8 Tan Poh Geok, PCS-5 of PW11 Mohamad Pauzi Ali; PCS-7 of PW13 Ammar Salim; PCS-4 of PW10 Leow; PCS-6 of PW12 Tay Han Liang;

[note: 16]Lai Kam Loy v PP [1993] 3 SLR(R) 143 at [31].

[note: 17]Nomura Taiji at [105] to [110].

[note: 18]Ang Ser Kuang v PP [1998] 3 SLR(R) 316 at [30]; Nomura Taiji at [110].

[note: 19]In P65, P66,P76, P78 and P85.

[note: 20]In P80

[note: 21]Hamzi’s statement in P76, Iswandi (PW16), Ammar Salim bin Ariff (PW13), Tan Poh Geok (PW8), Mohamad Pauzi Ali (PW11), Leow Kwee Far Dorothy (PW10) and Tay Han Liang (PW12). In addition to the oral evidence adduced at the trial, see also PCS-7 of PW13 Ammar Salim; PCS-2 of PW8 Tan Poh Geok; PCS-5 of PW11 Mohamad Pauzi Ali; PCS-7 of PW13 Ammar Salim; and PCS-4 of PW10 Leow.

[note: 22]See exhibits P11; P40, P41, P42, P85; PS1 – SOAF at [20(b)]

[note: 23]P54; P56; P58; P57; PW22; NEs, Day 30, p 47 line 18 to p48 line 2 (EIC of Gobi); NEs, Day 30, p 53 line 23 to 25 (EIC of Gobi); P52; PW6; NEs, Day 11 (25 May 2022), p 40 lines 26 to p 42 lines 9 (EIC of Rohana”); P76 at Q196.

[note: 24] The written submissions filed by the parties for the main trial are as follows:(a)Prosecution’s Closing Submissions (PCS) dated 19 February 2024;(b)Prosecution’s Reply Submissions (PRS) dated 18 April 2024;(c)Prosecution’s Submissions (PS(CPCIA)) on section 135 of the Criminal Procedure Code 2010 and section 40 of the Interpretation Act dated 26 April 2024;(d)The closing submission of Counsel for BJ dated 1 March 2024 (“DCS-1”).(e)The closing submissions of Counsel for Kok, Haron and Juma’at dated 20 February 2024 (“DCS-2”).(f)Sufandi’s closing submissions filed on 15 March 2024 (“DCS-3”).(g)The reply submissions of Counsel for BJ dated 18 April 2024 (“DCS-4”).(h)Submissions of Counsel for BJ on section 135 of the CPC and section 40 of the Interpretation Act dated 26 April 2024. (“DCS-5”).(i)The reply submissions of Counsel for Kok, Haron and Juma’at dated 2 May 2024 (“DCS-6”).

[note: 25]DCS-1 at [16]-[25].

[note: 26]DCS-1 at [16]-[35].

[note: 27]PRS at [4] to [21].

[note: 28]DCS-1 at [16]-[25].

[note: 29]DCS-1 at [18]-[20] and [27]-[33].

[note: 30]See Prosecution’s Opening Statement at [10].

[note: 31]PCS at [55(b)] and [108(b)].

[note: 32]See Prosecution’s Opening Statement at [9], [20] and [31] and [22] and [32].

[note: 33]Prosecution’s Opening Statement at [16]–[17]; [21] and [38]–[41].

[note: 34]DCS-1 at [20].

[note: 35]PRS at [14] to [17].

[note: 36]DCS-1 at [26], [34]-[35].

[note: 37]S 40 of the Interpretation Act 1965 states as follows: “Where any act or omission constitutes an offence under 2 or more written laws, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under any one of those written laws but shall not be liable to be punished twice for the same offence.”

[note: 38]PRS at [18] to [21].

[note: 39]S 135 states as follows: “If the alleged acts constitute an offence falling within 2 or more separate definitions of any law by which offences are defined or punished, then the person accused of them may be charged with and tried at one trial for each of those offences.”

[note: 40]Illustration (d) states as follows: “A dishonestly uses a forged document as evidence to convict B, a public servant, of an offence under section 167 of the Penal Code 1871. A may be separately charged with offences under sections 471 (read with section 466) and 196 of the Penal Code 1871.”

[note: 41]The District Court’s decision was upheld on appeal by the High Court which held that there was no double counting because the elements of the two offences were separate and distinct and it followed that there was no double penalization : see Merlur Binte Ahmad v PP [2024] SGCA 8 at [15] where the Court of Appeal agreed with the High Court and dismissed the Accused’s application for permission to refer four questions to the Court of Appeal which included the question of “whether the Possession Charges and the Removal Charges resulted in double counting which penalised the applicant twice ?”.

[note: 42]DCS-5.

[note: 43]PS(CPCIA) at [16] to [22].

[note: 44]Notes of Evidence (“NEs”), Day 3 (19 Jan 2022) at pp 14 to 127.

[note: 45]NE, Day 4, 20 January 2022 at pp 1 to 142.

[note: 46]NEs, Day 5, 21 January 2022 at pp 1 to 106; Day 6, 24 January 2022 at pp 1 to 72; Day 7, 25 January 2022 at pp 12 to 27.

[note: 47]NEs, Day 7, 25 January 2022 at pp 28 to 55; Day 8, 26 January 2022 at pp 1 to 111.

[note: 48]PCS at [37].

[note: 49]NEs, Day 8, 26 January 2022 at pp 112 to 131; Day 9, 27 January 2022 at pp 1 to 70; Day 10, 24 May 2022 at pp 8 to 110.

[note: 50]NE, Day 14, 22 August 2022 at pp 13 to 70.

[note: 51]NEs, Day 14, 22 August 2022 at pp 71 to 95; Day 15, 23 August 2022 at pp 1 to 60.

[note: 52]NE, Day 15, 23 August 2022 at pp 66 to 102.

[note: 53]NE, Day 14, 22 August 2022 at pp 4 to 13.

[note: 54]P11; P15; P14; P13; PS1 – Statement of Agreed Facts (“SOAF”) at [6b.]; P85, PBOD, Vol 3, p 929; PCS-2 of PW8 Tan Poh Geok.

[note: 55]PCS-4 of PW10 Leow Kwee Far Dorothy (“Leow”); PCS-4 of Leow and PCS-6 of PW12 Tay Han Liang(“Tay”).

[note: 56]PS1 at [10].

[note: 57]NE, Day 13, 27 May 2022, pp 69 to 96.

[note: 58]PCS-1, Para 4(a)

[note: 59]“Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant32.—(1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally, in a document or otherwise), are themselves relevant facts in the following cases:(j)when the statement is made by a person in respect of whom it is shown is dead…”;

[note: 60]PCS at [68].

[note: 61]NEs, Day 11, 25 May 2022 at pp 1 to 65; Day 12, 26 May 2022 at pp 1 to 63; Day 13, 27 May 2022 at pp 13 to 68.

[note: 62]NE, Day 15, 23 August 2022 at pp 64 to 66.

[note: 63]PCS-5 Para 3-6.

[note: 64]NEs, Day 16, 24 August 2022 at pp 59 to 106; Day 17, 25 August 2022 at pp 2 to 81.

[note: 65]at pages 210, 211, 212, and 223 of the PBOD.

[note: 66]NE, Day 18, 12 September 2022 at pp 3 to 54.

[note: 67]NEs, Day 18, 12 September 2022 at pp 56 to 93; Day 19, 13 September 2022 at pp 1 to 60; Day 20, 14 September 2022 at pp 2 to 12.

[note: 68]NE, Day 21, 15 September 2022 at pp 1 to 34.

[note: 69]NEs, Day 21, 15 September 2022 at pp 38 to 82; Day 22, 16 September 2022 at pp 1 to 79.

[note: 70]NEs, Day 15, 23 August 2022 at pp 103 to 122; Day 16, 24 August 2022 at pp 1 to 59.

[note: 71]NEs, Day 14, 22 August 2022 at pp 71 to 95; Day 15, 23 August 2022 at pp 1 to 60.

[note: 72]P37, PBOD, Vol 1, at p 131, and [6] of PCS-7; [8] of PCS-7.

[note: 73][9] of PCS-7; [13] of PCS-7.

[note: 74]P42, PBOD, Vol 1, p 315; P43, PBOD, Vol 1, p 314; P40, PBOD, Vol 1, p 313; [12] of PCS-4; [14] of PCS-4.

[note: 75][15] of PCS-7.

[note: 76]NE, Day 13, 27 May 2022, pp 69 to 96.

[note: 77]NEs, Day 30, 15 June 2023 at pp 39 to 88; Day 32, 10 July 2023 at pp 4 to 98.

[note: 78]PCS-8.

[note: 79]Farida Begam d/o Mohd Artham v PP [2001] 3 SLR(R) 592 at [9].

[note: 80]PCS at [52].

[note: 81]PCS at [55].

[note: 82]DCS-3 at [89] and [93].

[note: 83]PRS at [69] to [70].

[note: 84]DCS-3 at [89], [93] and [99].

[note: 85]PRS at [71].

[note: 86]PCS at [40(d)(ii)] and at [43] and [40](a)(ii).

[note: 87]DCS-2 at [83] to [88] and DCS-6 at [B9].

[note: 88]PRS at [75].

[note: 89]This is reflected in Order 64 rule 7of the 2014 Rules of Court which states as follows:“7.(1) Every solicitor representing any party in any cause or matter shall obtain from such party or his duly authorised agent a warrant to act for such party, either generally or in the said cause or matter. (2) The absence of such warrant shall, if the solicitor’s authority to act is disputed, be prima facie evidence that he has not been authorised to represent such party.”

[note: 90]PRS at [75].

[note: 91]PCS at [40] to [41] and PRS at [76].

[note: 92]PCS at [149] and [166] and PRS at [77].

[note: 93]PCS at [107].

[note: 94]PCS at [81] – [88].

[note: 95]PCS at [108].

[note: 96]PCS at [114] to [117].

[note: 97]PCS at [114] to [119].

[note: 98]Sections 9, 11(b) and 158 of the Evidence Act provide as follows:“Facts necessary to explain or introduce relevant facts9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.When facts not otherwise relevant become relevant11. Facts not otherwise relevant are relevant —(a)if they are inconsistent with any fact in issue or relevant fact;(b)if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.Questions tending to corroborate evidence of relevant fact admissible158.—(1) When a witness whom it is intended to corroborate gives evidence of any relevant fact, the witness may be questioned as to any other circumstances which he or she observed at or near to the time or place at which such relevant fact occurred, if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he or she testifies.”

[note: 99]DCS-4 at [25].

[note: 100]DCS-3 at [240]-[252].

[note: 101]PCS at [57].

[note: 102]PCS at [59] to [62].

[note: 103]PCS at [163].

[note: 104]DCS-3 at [147(f)].

[note: 105]PRS at [95] to [98]; PCS at [108](b)].

[note: 106]P86 – Statement of Sufandi dated 2 October 2015 at Q288 and Q290; P66 – Statement of Sufandi dated 29 July 2016 at Q1133, Q1134 and Q1136,

[note: 107]See Ng Kwee Leong v PP [1998] SGHC 294 where the High Court held that the trial judge made no error of law in relying on the testimony of PW1 although he lied about the appellant attempting to assault him as the trial judge had given due consideration to PW1’s lie in assessing the credibility and veracity of his evidence.

[note: 108]Chandroo Subramaniam v PP [2021] SGCA 11092 at [39].

[note: 109]DCS-2 at [64] to [68] DCS-3 at [75.b.]-[75.c.] and DCS-6 at [B5] to [B7].

[note: 110]PCS at [32] to [33] and PRS at [60].

[note: 111]DCS-3 at [63.b.iv.] and DCS-6 at [B7].

[note: 112]PCS at at [33] and PRS at [61].

[note: 113]DCS-3 at [63.b.ii.] and [74.h.].

[note: 114]PRS at [61a.].

[note: 115]DCS-3 at [63.b.i.].

[note: 116]PRS at [62].

[note: 117]PCS at [34] to [35].

[note: 118]DCS-6 at [B8].

[note: 119]DCS-3 at [63.b.vi.2]

[note: 120]PRS at [63] to [64].

[note: 121]DCS-2 at [69],

[note: 122]PRS at [65a]

[note: 123]DCS-2 at [71] to [72] and DCS-3 at [63.b.v.2.]

[note: 124]PCS at [34] to [35] and PRS at [65b].

[note: 125]PCS at [53] to [54].

[note: 126]DCS-6 at [B11].

[note: 127]PCS at [73] to [75].

[note: 128]PCS at [89] to [90].

[note: 129]PRS at [120].

[note: 130]DCS-3 at [172(b)(iii)] and DCS-3 at [172(c)].

[note: 131]DCS-3 at [172(b)(i)] and [172(b)(ii)].

[note: 132]PRS at [116] to [118].

[note: 133]DCS-3 at [172(b)(i)] and [172(b)(ii)].

[note: 134]PRS at [118].

[note: 135]PCS at [112] to [113].

[note: 136]As Haron and Juma'at did not file any appeal against their respective convictions for the fraudulent deed offences under s 423 PC, I did not include a summary of their evidence, my reasons in these Grounds of Decision why I found them to be untruthful witnesses and rejected their respective defences to the aforesaid offences.

[note: 137]NEs, Day 35, 4 Oct 2023; Day 36, 5 Oct 2023; Day 37, 6 Oct 2023; and Day 38, 9 Oct 2023.

[note: 138]PCS at [128] to [129].

[note: 139]PCS at [130] to [131].

[note: 140]PCS at [133].

[note: 141]PCS at [134].

[note: 142]PCS at [132].

[note: 143]DCS-1 at [45], [46], [48] and [53].

[note: 144]PRS at [93].

[note: 145]PCS at [135].

[note: 146]NEs, Day 48 (20 Nov 2023), 106:24-27 (Sufandi’s XXN by DPP); NEs, Day 48 (20 Nov 2023), 107:1-108:17 (Sufandi’s XXN by DPP); NEs, Day 49 (21 Nov 2023), 6:5-6:10 (RXN of Sufandi).

[note: 147]PCS at [138] to [142].

[note: 148]DCS-1 at [36] and [41].

[note: 149]PCR at [48] to [54]; PCS at [51],[52],[55], [56] and [162].

[note: 150]PCS at [143] to [145] and PCR at [55] to [56].

[note: 151]PCS at [123].

[note: 152]DCS-1 and DCS-4.

[note: 153]NEs, Day 38, 9 Oct 2023; Day 39, 10 Oct 2023; Day 40, 23 Oct 2023.

[note: 154]DCS-6 at [20].

[note: 155]PCS at [151] to [164].

[note: 156]PCS at [155(a)] and [157].

[note: 157]PCS at [158].

[note: 158]PCS at [159] to [161].

[note: 159]PCS at [161].

[note: 160]PCS at [162].

[note: 161]PCS at [164].

[note: 162]PCS at [164].

[note: 163]DCS-2 at [89] to [96]; DCS-3 at [115] to [116].

[note: 164]PCS at [26] to [27] and [40 to [41] and PRS at [80 to [83].

[note: 165]DCS-2 at [98] to [104] and DCS-6 at [20].

[note: 166]PRS at [84] to [87].

[note: 167]P65 – Statement of Sufandi dated 8 June 2016 at Q784; P66 – Statement of Sufandi dated 29 July 2016 at Q987 to Q 988; 1003; Q1007 to Q1010 and Q1015.

[note: 168]PCS at [165] to [168].

[note: 169]PCS at [166].

[note: 170]PCS at [167] to [168].

[note: 171]PCS at [146] and [168].

[note: 172]NEs, Day 46, 14 Nov 2023; Day 47, 15 Nov 2023; Day 48, 20 Nov 2023; Day 49, 21 Nov 2023.

[note: 173]PCS at [235] and [247].

[note: 174]PCS at [238].

[note: 175]PCS at [240].

[note: 176]PCS at [241].

[note: 177]PCS at [244] to [245].

[note: 178]PCS at [247].

[note: 179]DCS-3 at [12].

[note: 180]PCS at [246] to [247].

[note: 181]DE18 – Statement of Sufandi dated 29 April 2015 at 1045 hours at Q42; DE19 – Statement of Sufandi dated 29 April 2015 at 1445 hours at Q53 to Q54 and Q69; DE21 – Statement of Sufandi dated 7 October 2015 at 0915 hours at Q445, Q448, to Q449 and Q457; P87 – Statement of Sufandi dated 7 October 2015 at 1400 hours Q500 to Q503.

[note: 182]DCS-3 at [88(a)].

[note: 183]PCR at [40] to [43].

[note: 184]NE, Day 8 (26 Jan 2022), 11:40 am, lns 6 – 28.

[note: 185]NE, Day 8 (26 Jan 2022), 3:27 pm, ln 28 – 3:28 pm, ln 32; NE, Day 8 (26 Jan 2022), 3:29 pm, lns 27 – 29; NE, Day 8 (26 Jan 2022), 3:43 pm, lns 19 – 32.

[note: 186]PCS at [243]–[245].

[note: 187]DCS-3 at [88(c)]

[note: 188]PCR at [44] to [45].

[note: 189]The contents of DE-15 and DE-16. DE-15 only contains a series of messages sent by Sufandi with no reply from the recipient. There is nothing in Sufandi’s message that indicates any form of fear. Instead, in DE-15, Sufandi is: (i) inviting Naseeruddin for a meeting;(ii) openly mocking Naseeruddin – “Mother fucker. Come la meet me .. no valls. Mother chee bye. . You fuck your own mother. Read than don’t reply.”; (iii) outrightly threatening Naseeruddin with physical harm – he sent Naseeruddin a photo of a main with stitches on his scalp and added “Pray bro .. next”. Likewise, in DE-16, although Naseeruddin can be seen threatening Sufandi and his family, “Your whole family heads will roll”, Sufandi’s response shows that he did not take any of Naseeruddin’s threats seriously. Instead, he laughed off the threats, “Boring ar. Dont talk la much la … sore loser … I still have balls show my face but not you … hahahahhaha.” (emphasis in bold added)

[note: 190]DCS-3 at [88(c)].

[note: 191]PCR at [46] to [47]; and PCS at [247].

[note: 192]DE-14 at 27; DE-14 at [52]-[53]; P67, PBOD, Vol 3, p 1 at p 679 at Q1271 and p 684 at Q1304 to Q1309; DE-15 at pg 1; DE-15 at pg 5; DE-15 at pg 6; DE-16 at pg 8; DE-16 at pg 9.

[note: 193]DCS-3 at [12] and [88].

[note: 194]wherein Naseeruddin tells Sufandi, “I will make sure EVERYBODY know how you manipulate people and CHEAT BANK and cheat other people around you, and how you cheat and manipulate all friends and relative who help you!”, and Sufandi replies, “What you got if everyone know? Everyone know already. It’s a mistake and I will need to face the sentence. And I will face it like a man with balls. Not like you no balls hide behind social media, ok lah, bye..” (emphasis in bold added)

[note: 195]PCS at [249].

[note: 196]DCS-1, DCS-2, DCS-3, DCS-4 and DCS-6

[note: 197]DCS-1 at [36]-[40]; DCS-1 at [38]; DCS-2 at [52]-[57].

[note: 198]PRS at [23] to [29].

[note: 199]PP v Singh Kalpanath [1995] 3 SLR(R) at 158 at [88]; PCR at [24].

[note: 200]PCR at [26]; PCS at [50]–[58] and [62]; [105]–[110] and [114]–[115].

[note: 201]See Questions 756-766 and 946-948 in P65.

[note: 202]DCS-2 at [15]-[30]; DCS-2 at [30]-[50].

[note: 203]DCS-3 at [122]-[130].

[note: 204]PRS at [88] to [91].

[note: 205]DCS-3 at [201(d)].

[note: 206]PRS at [124] to [125].

[note: 207]PCS at [228] to [229].

[note: 208]DCS-3 at [10],[12], [106] to [109], [114] to [116], [148], [217] to [218],[225], [230], [235] to [236], [260] to [271].

[note: 209]Sufandi’s submissions in relation to Haron and Jumaat have been excluded since they did not file any appeal against their respective convictions and sentences.

[note: 210]See Gunasegaran s/o Pavadaisamy v PP [1997] 2 SLR (R) 9465 (“Gunasegaran”) at [42] to [44] and Seaward III Frederick Oliver v PP [1994] 3 SLR(R) 896 at [28].

[note: 211]Leck Kim Koon v PP [2022] 3 SLR 1050.

[note: 212]See Gunasegaran at [53].

[note: 213]See Lee Yuen Hong v PP [2001] 1 SLR(R) 6049 at [38]and Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619

[note: 214]See PP v Yeo Choon Poh [1993] 3 SLR(R) 30210 at [20].

[note: 215]See Er Joo Nguang v PP [2000] 1 SLR(R) 77011 at [35].

[note: 216]See Nomura Taiji & Ors v PP [1998] 1 SLR(R) 25912 at [110].

[note: 217]See Ang Ser Kuang v PP [1998] 3 SLR(R) 31613 at [30].

[note: 218]As Haron and Juma'at did not file any appeal against their respective convictions for their fraudulent deed offences under s 423 PC, I did not include my finding of facts in these Grounds of Decision for their aforesaid offences.

[note: 219]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q759 and Q760.

[note: 220]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q852 and Q861 and P66 – Statement of Sufandi dated 29 July 2016 in his answers Q964 and Q965.

[note: 221]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q965 to Q968 and Q1028 to Q1029; P87 – Statement of Sufandi dated 7 October 2015 in his answers to Q541 to Q542.

[note: 222]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q853; P66 – Statement of Sufandi dated 29 July 2016 in his answers Q989

[note: 223]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q791 and Q792; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1016 to Q1021 and to Q1024 to Q1026.

[note: 224]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q784; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q987 to Q988, Q1003, Q1007 to Q1010, and Q1015.

[note: 225]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1043 and Q1044; P67 – Statement of Sufandi dated 2 December 2016 in his answers to Q1271.

[note: 226]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1040 and Q1041; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1055 to Q1057.

[note: 227]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q995, Q997, Q1001 and Q1018.

[note: 228]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q759 to Q760.

[note: 229]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q840, Q843 to 844, and Q1069.

[note: 230]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q835; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1120, Q1122, Q1143 to Q1144.

[note: 231]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q833 and Q834.

[note: 232]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q921, Q922 and Q 924.

[note: 233]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1071 to Q1073; Q1134, Q1163 and Q1165 to Q1166

[note: 234]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q832.

[note: 235]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q784; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1075to Q1077, Q1079 and Q1085.

[note: 236]P78 – Statement of Sufandi dated 11 April 2017 in his answers to Q1368, Q1371 to Q1379; P79 – Statement of Sufandi dated 29 April 2019 in his answers to Q1362 to Q1364 and Q1370 to Q 1372.

[note: 237]These are as follows:(a) Prosecution’s address on sentence dated 28 June 2024 and Prosecution’s submissions on the totality principle and sections 307 & 308 of the Criminal Procedure Code 2010 dated 19 July 2024;(b) BJ’s plea in mitigation and sentencing submissions dated 28 June 2024; (c) Joint mitigation plea and sentencing submissions dated 1 July 2024 for Kok, Harin and Juma’at; reply dated 10 July 2024 and further submissions dated 25 July 2024;(d) Mitigation reply of Sufandi bin Ahmad received on 17 July 2024.

[note: 238]As Haron and Juma'at did not file any appeal against their respective convictions and sentences for their fraudulent deed offences under s 423 PC, I did not include my reasons in these Grounds of Decision for the sentences imposed on each of them for the aforesaid offences.

[note: 239]Leck Kim Koon v PP [2022] 3 SLR 1050 at [46] to [48].

[note: 240]PP v Law Aik Meng [2007] 2 SLR(R) 8141 (“Law Aik Meng”) at [24(e)]).

[note: 241]PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 3342 (“Fernando Payagala”) at [1]).

[note: 242]Fernando Payagala at [44]; Than Stenly Granida Purwanto v PP [2003] 3 SLR(R) 57630 at [17] and [18].

[note: 243]Moganaruban s/o Subramaniam v PP [2005] 4 SLR(R) 12131 at [57]).

[note: 244]Fernando Payagala at [45].

[note: 245]PP v Tan Fook Sum [1999] 1 SLR(R) 10223 at [28]; Fernando Payagala at [39] to [41]).

[note: 246]Zhao Zhipeng v PP [2008] SGHC 12532 at [37].

[note: 247]Fernano Payagala at [44].

[note: 248]Chong Han Rui v PP [2016] SGHC 25.

[note: 249]PP v Ramlee [1998] 3 SLR 539 at [7].

[note: 250](a) In PP v Cheong Sing Whee [2005] SGDC 124 (“Cheong”), the offender pleaded guilty to conspiring with another to cheat DBS into disbursing a loan of $1,540,000 to purchase a machinery by submitting a letter falsely stating that the difference between the cost of the machinery and the loan has been paid. DBS was able to recover the machinery and sold it off, with an unmitigated loss of $676,320. The offender faced another charge involving $1,940,000 that was taken into consideration. The offender was sentenced to three years’ imprisonment which sentence was reduced on appeal to two years’ imprisonment. (emphasis in bold mine)(b) In PP v Winnie Goh Li Ching [2011] SGDC 428 (“Winnie Goh”), the offender pleaded guilty to 33 charges for being part of a conspiracy to cheat the banks into disbursing mortgage loans to individuals who did not meet the credit worthiness criteria, with 156 remaining charges taken into consideration. She was sentenced to 60 months imprisonment (5 years) globally, with the sentence ranging from six months to 18 months for sums involving $160,000 to $1,710,000. She was a Mobile Banking Executive with OCBC. She provided to real estate salespersons the indicative salary range that their genuine buyer should possess in order to be eligible for a mortgage loan. In turn, the salespersons provided her with forged income documents as supporting documents. She then processed these mortgage applications and OCBC disbursed 179 mortgage loans involving a total of $62,795,796. OCBC was able to foreclose on properties where the borrowers were unable to resell their properties and the unmitigated loss stood at $687,788.37. The offender was paid a commission of $44,632.57 from OCBC, $11,257.65 in referral fees from the salespersons and $90,000 from her accomplices. (emphasis in bold mine)

[note: 251]PP v Tan Fook Sum at [28]).

[note: 252]where the offender in Gunasegeran was convicted after trial of cheating a car buyer and using forged documents to obtain a loan from a credit company. In relation to the s 471 PC offence, the offender had used 4 different forged documents as stated in the charge for the offence and the High Court found that he had forged the documents and affirmed the sentence of 6 months’ imprisonment.

[note: 253]Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (“Shouffee”) at [54].

[note: 254]PP v Li Yong De [2021] SGDC 115 where the bank had disbursed at least $1,076,339 to the pawn shop during the relevant period which the offender then misappropriated and 6 years’ imprisonment was imposed on him; PP v Husniyati Binte Omar [2018] SGDC 255 where the offender cheated 89 victims to deliver a total of $1,796,474.44 to her with no restitution made and a global sentence of 93 months’ of 7.75 years’ imprisonment was imposed on her; PP v Neo Aileen [2013] SGDC 315 where the total loss was $1,297,000 (as at September 2011) with no restitution made and the offender was sentenced to a global sentence of 78 months’ or 6.5 years’ imprisonment.

[note: 255]Shouffee at [56].

[note: 256]Shouffee at [57].

[note: 257]S 307(1) CPC: “ Subject to subsection (2), if at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which the person is convicted must order the sentences for at least 2 of those offences to run consecutively.”

[note: 258]S308 CPC states as follows:“Limit of punishment for offence made up of several offences 308.—(1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the person who committed the offence must not be punished with the punishment of more than one of such offences unless it is expressly provided. (2) Where — (a)anything is an offence falling within 2 or more separate definitions of any law in force for the time being by which offences are defined or punished; or (b)several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person who committed the offence must not be punished with a more severe punishment than the court which tries the person could award for any one of such offences.”

"},{"tags":["Criminal Procedure and Sentencing – Sentencing","Criminal Procedure and Sentencing – Offences – Theft","Criminal Procedure and Sentencing – Law enforcement officer"],"date":"2024-10-15","court":"District Court","case-number":"District Arrest Case No 913757 of 2024 and 4 others, Magistrate's Appeal No 9171/2024/01","title":"Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh","citation":"[2024] SGDC 273","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32332-SSP.xml","counsel":["Mark Chia Zi Han (Attorney-General's Chambers) for the Public Prosecutor","Accused in person."],"timestamp":"2024-10-21T16:00:00Z[GMT]","coram":"Kenneth Chin","html":"Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh

Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh
[2024] SGDC 273

Case Number:District Arrest Case No 913757 of 2024 and 4 others, Magistrate's Appeal No 9171/2024/01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Kenneth Chin
Counsel Name(s): Mark Chia Zi Han (Attorney-General's Chambers) for the Public Prosecutor; Accused in person.
Parties: Public Prosecutor — Muhammad Fadhil Bin Mohamed Salleh

Criminal Procedure and Sentencing – Sentencing

Criminal Procedure and Sentencing – Offences – Theft

Criminal Procedure and Sentencing – Law enforcement officer

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9171/2024/01.]

15 October 2024

District Judge Kenneth Chin:

Introduction

1       It is trite that the hard-won reputation of law enforcement and security agencies in Singapore cannot be taken for granted but must instead be jealously protected. If, and when the personnel of such agencies break the law, especially when the offences were committed under the colour of office, they must be punished appropriately, and the imposed sentence must adequately reflect the damage that may be inflicted on the standing of all other law enforcement personnel and the institutions that they represent.[note: 1] The present case represents one such instance where a deterrent message must be sent to deter other like-minded offenders.

2       The accused, an Immigration and Checkpoints Authority (“ICA”) officer at the material time, was the duty officer stationed at the departure hall in Changi Airport and had stolen from five different foreign travellers departing Singapore while he was searching through their belongings in execution of his official duties.

3       On 26 August 2024, the accused pleaded guilty to three proceeded charges of theft under s.379 of the Penal Code 1871 (“Penal Code”). Two similar charges were taken into consideration (“TIC”) for the purpose of sentencing. I sentenced the accused to a global custodial sentence of 14 months’ imprisonment as follows:

Charge No.

Offence Section

Sentence

DAC 913757-2024

Section 379 Penal Code

Stealing cash of $400 from one Chou Thanyachanok

Eight (8) months’ imprisonment

(consecutive)

DAC 913760-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Zhu Junwu

Six (6) months’ imprisonment

DAC 913761-2024

Section 379 Penal Code

Stealing cash of at least $100 from one Le Thi Ly

Six (6) months’ imprisonment

(consecutive)

DAC 913758-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Mai Nhat Quynh Nhu

TIC

DAC 913759-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Le Trung Kien

TIC



4       Being dissatisfied, the accused has appealed against the sentences imposed.

5       The sentence has been stayed and the accused is currently on bail pending appeal.

6       I now set out the reasons for my decision.

The charges and prescribed punishment

7       The accused pleaded guilty to the following charges.

DAC-913757-2024

You… are charged that you, on 26 September 2023, at around 7.50pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of S$400 in the possession of one Chou Thanyachanok, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913760-2024

You… are charged that you, on 20 September 2023, at around 2pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Zhu Junwu, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913761-2024

You… are charged that you, on 28 September 2023, at around 1.45pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$100 that was in the possession of one Le Thi Ly, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

8       The following two charges were TIC for sentencing:

DAC-913758-2024

You… are charged that you, on 12 September 2023, at around 9.40am, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Mai Nhat Quynh Nhu, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913759-2024

You… are charged that you, on 12 September 2023, at around 1.20pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Le Trung Kien, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

9       The prescribed punishment for each of the offences is a fine or imprisonment not exceeding three years, or both.

Facts

10     The following facts are summarised from the statement of facts, to which the accused admitted to without qualification.[note: 2]

11     On 1 October 2023, the complainant lodged a police report after having received feedback via the ICA website that a female Thai national had alleged that an ICA officer had taken her cash monies amounting to $400 on 26 September 2023.

12     Preliminary investigations revealed the ICA officer involved to be the accused. At the material time, the accused was employed as an immigrations officer with the ICA and was deployed at the departure hall of Changi Airport Terminal 4. The accused’s job as a duty officer was to attend to passengers who faced issues clearing the automated clearance lanes in the departure hall.

Facts pertaining to the 1st charge (DAC 913757-2024)

13     On 26 September 2023, the victim V1, a female Thai national, attempted to clear Singapore immigrations through the automated clearance lanes. V1 was flagged by the system, prevented from leaving through the automated lane, and was referred to the accused instead.

14     The accused escorted V1 into an interview room and instructed her to place her bags on the table before conducting a bag check in front of V1. During his check, the accused discovered that one of V1’s bags contained cash. He told V1 to sit down on a chair, directed her to look away from him, and to look towards the wall instead. The accused then continued to search through V1’s bags while conversing with her. When V1 turned towards the accused, she was instructed to look back at the wall. Investigations revealed that such procedure did not adhere to ICA’s standard practice.

15     While V1 was facing the wall, the accused took cash of $400, rolled the cash into his palm and slipped it into his pocket. The accused subsequently allowed V1 to leave the interview room, and she departed Singapore.

16     After departing Singapore, V1 discovered her missing cash and made a report through the ICA website.

Facts pertaining to the 4th charge (DAC 913760-2024)

17     On 20 September 2023, the victim V4, a male Vanuatu national failed to clear Singapore immigrations through the automated clearance lanes and was referred to the accused instead.

18     The accused escorted V4 into an interview room and instructed V4 to lay out his belongings together with his backpack on the table. V4 complied with the instructions and the accused proceeded to check V4’s belongings which included cash monies. When the accused counted V4’s cash in front of V4, the accused performed a sleight of hand and tucked several notes into his right hand before putting the monies into his pocket. As V4 was distracted repacking his belongings back into his backpack, he did not notice this.

19     The accused subsequently allowed V4 to leave the interview room, and he departed Singapore.

20     The accused admitted to taking at least $50 from V4’s stack of cash.

Facts pertaining to the 5th charge (DAC 913761-2024)

21     On 28 September 2023, the victim V5, a female Vietnamese national similarly failed to clear Singapore immigrations through the automated clearance lanes and was referred to the accused instead.

22     The accused escorted V5 into an interview room and instructed V5 to place her bag on the table. Whilst checking through V5’s belongings, the accused discovered a stack of $100 notes in a bag, removed it from the bag, and started to count it in front of V5 before putting the cash back into the bag.

23     The accused then directed V5 to open her suitcase. V5 complied and squatted on the floor to open her suitcase pursuant to the accused’s directions. While V5’s attention was diverted in getting her suitcase ready for inspection, the accused reached into the bag on the table, removed several notes and slipped the notes into his pocket. The accused then glanced into V5’s suitcase before telling her to pack up her belongings.

24     The accused subsequently allowed V5 to leave the interview room, and she departed Singapore.

25     The accused admitted to taking at least $100 from V5.

26     The accused’s actions were captured by CCTV in the interview rooms, and he admitted to the offences.

27     In total, the accused stole at least $650 from five victims. No restitution had been made.

Antecedents

28     The accused had no prior antecedents.

Parties’ submissions

Prosecution’s submission on sentence

29     The Prosecution submitted for a global custodial sentence of 13 to 15 months’ imprisonment with the following breakdown:

(a)     DAC 913757-2024 – 7 to 8 months’ imprisonment (consecutive)

(b)     DAC 913760-2024 – 6 to 7 months’ imprisonment (consecutive)

(c)     DAC 913761-2024 – 6 to 7 months’ imprisonment (concurrent)

30     In support of this position, the Prosecution made the following arguments:[note: 3]

(a)     General deterrence was the dominant sentencing consideration in the present case. When law enforcement officers offend in abuse of trust and reliance placed in them, a deterrent sentence was warranted.[note: 4] The accused had also tarnished Singapore’s reputation as an international travel hub.[note: 5]

(b)     There was the presence of the following aggravating factors:

(i)       The accused committed multiple offences;

(ii)       The accused targeted foreigners about to depart Singapore and who were vulnerable being unfamiliar with Singapore’s laws and processes;

(iii)       The offences were premeditated as evidenced by how the accused deliberately distracted the victims with his directions to either look away or to engage in other tasks;

(iv)       The accused abused his position of authority and trust as the victims complied with his directions without question and allowed the accused to access their belongings, only for the accused to steal from them;

(v)       The accused was motivated by personal gain.[note: 6]

(c)     There were two identical TIC charges;[note: 7]

(d)     The Prosecution’s position was in line with case precedents:

(i)       In PP v Amir Hamzah bin Mohammad [2012] SGHC 165, the High Court noted that in cases of theft by police officers, the sentences imposed have been between four to six months’ imprisonment;[note: 8]

(ii)       The present case is more severe than Fackir Mohamed Shariff v PP [2003] SGDC 189 (“Fackir”) where the offender, an auxiliary police officer, stole items worth $25 from the building that he was supposed to safeguard. The offender was sentenced to three months’ imprisonment.[note: 9]

(iii)       The present case is more severe than PP v Mohammad Yus bin Ismail [2005] SGDC 168 (“Mohammad Yus”) where the offender, a police officer, stole an ATM card from a suspect that he was investigating and used the ATM card to steal $1,000 on each of two occasions. The offender was sentenced to six months’ imprisonment for stealing the ATM card and eight months’ imprisonment for each of the theft charges where he stole $1,000, with a global custodial sentence of 14 months’ imprisonment.

(e)     Applying the totality principle, it was sufficient for the sentences of two of the charges to run consecutively, for a global custodial sentence between 13 to 15 months’ imprisonment.

Accused’s submission on sentence

31     The accused pleaded for leniency in seeking a lighter sentence and highlighted the following:

(a)     The accused was a first offender;

(b)     The accused was remorseful and pleaded guilty at first instance;

(c)     The accused was the sole breadwinner with two young children.

Decision on sentence

General deterrence as the predominant sentencing consideration

32     The accused in this case was a law enforcement officer, in immigration matters. Law enforcement officers are not only expected to enforce and maintain the law but are also expected to conduct themselves in a manner befitting of them to enforce such laws.[note: 10] This legitimacy to uphold the law demands high standards of honesty and integrity.

33     In PP v S Iswaran [2024] SGHC 251,[note: 11] Hoong J held that “trust and confidence in public institutions are the bedrock of effective governance, which can all too easily be undermined by the appearance that an individual public servant has fallen short of the standards of integrity and accountability”. The positive reputation of Singapore’s law enforcement agencies is a precious and hard-won asset that should be jealously protected, as it serves as the foundation upon which trust, credibility and success are built. Once tarnished, this reputation can be difficult, if not impossible, to fully restore. Damaged confidence in Singapore’s law enforcement agencies can have dire long-term consequences. Therefore, where the accused in this case has fallen short of the level of conduct expected of him and have committed criminal acts that could corrode the trust and confidence that has been reposed in him and the institution, this court should not hesitate to show its disapproval by imposing a sufficiently significant term of imprisonment. It is imperative that a deterrent sentence be imposed to deter similarly placed individuals from acting in disregard to the demands of their office. To lightly condone the present offences would no doubt diminish the public’s trust in Singapore’s law enforcement agencies, and this must not be allowed to happen.

34     For these reasons, general deterrence is undoubtedly the predominant sentencing consideration in this case.

There were multiple aggravating factors present

35     I further considered the following sentencing factors in determining the appropriate sentences:

(a)      Offences were committed under colour of office – The accused committed offences of theft whilst on active duty as a law enforcement officer. Committing offences under the colour of office is a particularly egregious form of misconduct as it involves the exploitation of a position of trust and authority for personal gain. As the duty ICA officer in charge of screening the foreign travellers departing Singapore, the accused held considerable authority over the victims as he was empowered to instruct these victims to subject their belongings to search. He was expected to exercise such powers responsibly and in accordance with the law. Instead, the accused abused his official powers which facilitated the commission of his theft offences by instructing the victims to carry out instructions which drew their attention away from his offending acts of theft. Such misconduct not only harm the direct victims but also tarnish the reputation of law enforcement agencies, damaging the social contract between ordinary citizens and those in power. The aggravating nature of such offences lie in the unequal power dynamic where the victims were exploited by the accused who was supposed to uphold the law. The potential erosion of public confidence in our public institutions demands stern accountability. As unscrupulous or corrupt officers may be especially well placed to abuse their positions of authority to commit such acts of theft or misappropriation if they are so inclined, it is necessary that a clear signal in sentencing be sent to deter like-minded persons who might contemplate such criminal acts.[note: 12]

(b)      Potential harm to Singapore’s reputation as an international travel hub – For some foreign travellers, their only interaction with Singapore’s law enforcement regime may only be with our ICA officers when they enter or depart Singapore through our borders. The accused, an ICA officer, represented Singapore’s law enforcement system to these travellers. In this case, where the accused who was tasked to protect Singapore’s borders offend against foreign nationals by stealing from those who visit our country, I agree with the Prosecution that the potential harm to Singapore’s global standing as an international travel hub cannot be understated.

(c)      Offences committed for personal benefit – I accepted the Prosecution’s submission that the accused had committed the offences for personal benefit. No restitution has been made.

(d)      Multiple offences committed with TIC charges present – This was not an isolated incident as the accused committed multiple offences on separate occasions against five different victims until he was caught. Apart from the three proceeded charges, there was the presence of two TIC charges. As made clear in PP v UI [2008] 4 SLR 500,[note: 13] where the TIC charges are similar in nature to the proceeded charges, there generally ought to be an increase in the sentence to be imposed for the proceeded charge. While it is not axiomatic that the court must increase the sentence imposed for the offences proceeded with where TIC offences are present, I am of the view that it would be appropriate in this case to do so, especially when considering the similar offences in their context of being committed in a serial fashion.

There was limited mitigating credit to be accorded to the accused

36     In mitigation, the accused highlighted that he was a first offender, which is often cited as a mitigating factor in sentencing. However, I accorded limited weight to this factor in this case for the following reasons:

(a)     First, it was precisely the accused’s clean record which allowed him to be placed in a position of trust and authority as a law enforcement officer. This made his abuse of his position more aggravated;

(b)     Second, I was of the view that the lack of antecedents carried little mitigating value in the face of serious offences and when there is a need for deterrence.

37     It is well accepted that an admission of guilt that reflects genuine remorse is a mitigating factor.[note: 14] However, the courts have also given little weight to an offender’s plea of guilt in cases where the offender was caught red-handed and has little choice but to plead guilty. In Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 at [14], Chan Sek Keong J (as he then was) commented:

…I do not dissent from the principle applied by the Senior District Judge that the voluntary surrender by an offender and a plea of guilty by him in court are factors that can be taken into account in mitigation as they may be evidence of remorse and a willingness to accept punishment for his wrongdoing. However, I think that their relevance and the weight to be placed on them must depend on the circumstances of each case. I do not see any mitigation value in a robber surrendering to the police after he is surrounded and has no means of escape, or much mitigation value in a professional man turning himself in in the face of absolute knowledge that the game is up. [emphasis added]

38     In this case, there was overwhelming evidence against the accused as he was caught “red-handed” on CCTV recording in the interview rooms and he had little choice but to plead guilty. Nevertheless, I accepted that the accused’s guilty plea did save some judicial resources and time and therefore after considering these factors in the round, I accorded the accused slight mitigating weight for his guilty plea.

39     It is trite law that save in exceptional or extreme circumstances, hardship to the offender’s family has little mitigating value as it is merely the natural consequence of the offender committing a crime.[note: 15] No such exceptional circumstances were brought to the court’s attention, and I therefore did not consider the accused’s highlighted family circumstances a valid mitigating factor.

The appropriate sentences

40     Notwithstanding the relatively small sum of monies stolen by the accused in the proceeded charges, after considering the aggravating factors highlighted above at [35], the appropriate sentences must nevertheless be substantial.

41     For the 4th (involving at least $50) and 5th charges (involving at least $100), the appropriate sentence in my view was six months’ imprisonment.

42     For the 1st charge (involving $400), the appropriate sentence must be higher than the sentence imposed for the 4th and 5th charges as it involves a larger amount of money stolen. Generally, in property offences, the higher the value involved, the stiffer the punishment, although the appropriate calibration is not necessarily a linear one. For the 1st charge (involving $400), the appropriate sentence in my view having considered that the stolen amount is almost four times the amount stolen in the 5th charge (involving at least $100), is eight months’ imprisonment.

The imposed sentences were in line with cited sentencing precedent

43     In Fackir, the offender, an auxiliary police officer, stole items worth $25 from the building that he was supposed to safeguard and was convicted of an offence under s.380 of the Penal Code. The offender was a first offender and was sentenced to three months’ imprisonment, which was affirmed on appeal.

44     I agreed with the Prosecution that the present case was more severe than Fackir and therefore should attract a higher sentence for the following reasons:

(a)     The quantum involved in the charges in the present case are higher;

(b)     The accused here committed multiple offences;

(c)     There was an element of premeditation and a greater abuse of the accused’s position of authority here as he had deliberately distracted the victims using his official powers;

(d)     The present case involves potential harm to Singapore’s standing as an international travel hub;

45     In Mohammad Yus, the offender was a case investigating officer in the Singapore Police Force. He stole an ATM card belonging to a suspect in custody, used his powers of investigation to obtain the PIN number of the ATM card, and withdrew $1,000 on each of two occasions. He was convicted on three charges of s.379 of the Penal Code and sentenced to six months’ imprisonment for the theft of the ATM card, and eight months’ imprisonment each for the theft of the cash with the ATM card, with a global custodial sentence of 14 months’ imprisonment.

46     I was of the view that the present case is of a similar level of seriousness as compared to Mohammad Yus for the following reasons:

(a)     While the quantum involved in the proceeded charges of the present case is lower than in Mohammad Yus, the present case involved the accused committing theft on a larger number of occasions;

(b)     Both offenders in the present case and in Mohammad Yus had blatantly abused their official powers to facilitate their commission of the offences;

47     Therefore, given that the accused in the present case had additionally potentially damaged Singapore’s standing as an international travel hub, the appropriate sentence in the present case should be similar, if not more severe than the sentence imposed in Mohammad Yus.

The appropriate global sentence

48     As the accused has been convicted of three distinct offences, the court must order that at least two of the sentences run consecutively pursuant to section 307 of the Criminal Procedure Code 2010.

49     The global sentence to be meted out to the accused must reflect the totality of the accused’s criminality and serve as a deterrent as I had identified general deterrence as the overriding sentencing consideration in this case. In my view, a global sentence of 14 months’ imprisonment by running the sentences for the 1st and 5th charges consecutively would be fair and appropriate. I so sentenced the accused.

50     The accused was remanded for one day from 3 October 2023 to 4 October 2023. I ordered for his global sentence of 14 months’ imprisonment to be backdated to his date of arrest on 3 October 2023 to account for the period of remand but excluding the period the accused was released on bail.[note: 16] The accused was released on bail from 4 October 2023 till date.

Conclusion

51     In conclusion, a law enforcement officer who commits theft offences deserves stringent punishment, not only for the criminal act itself but also for the profound betrayal of public trust. By engaging in theft while on active duty, the accused had abused his position, exploited the victims, undermined the integrity of the system, and eroded public confidence in the entire law enforcement community. Heavy punishment serves as a necessary deterrent, ensuring accountability and maintaining the highest standards of integrity within our law enforcement agencies. Ultimately, severe penalties for law enforcement officers who commit theft send a clear message – that those entrusted with enforcing the law will be held to the highest standards of conduct, and any breach will face swift and just consequences.

52     All considered, I was of the view that a global custodial term of 14 months’ imprisonment was warranted and cannot be said to be manifestly excessive.

[note: 1]PP v Loqmanul Hakim bin Buang [2007] 4 SLR(R) (“Loqmanul”) at [3] and [37].

[note: 2]Statement of Facts dated 21 August 2024.

[note: 3]Prosecution’s Address on Sentence dated 21 August 2024.

[note: 4]At [4]

[note: 5]At [5].

[note: 6]At [6]

[note: 7]At [7]

[note: 8]At [8].

[note: 9]At [12]

[note: 10]Loqmanul at [76]

[note: 11]At [1].

[note: 12]Mohammad Yus at [14].

[note: 13]At [37]-[38].

[note: 14]PP v Fernando Payagala Wadyge Malitha Kumar [2007] 2 SLR(R) 334 at [54]

[note: 15]Lai Oei Mui Jenny v PP [1993] 3 SLR 305 and PP v Tan Fook Sum [1999] 2 SLR 523

[note: 16]S.318(4) and s.318(5) CPC.

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Public Prosecutor v AR Ridhwan Bin Abdul Rahim
[2024] SGDC 272

Case Number:District Arrest Case No 913840 of 2023
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Brian Tan (Attorney-General's Chambers) for the Public Prosecutor; Benedict Koh Yen Hin and Yip Jian Yang (Pro Bono SG) for the Accused.
Parties: Public Prosecutor — AR Ridhwan Bin Abdul Rahim

Criminal Procedure and Sentencing – Sentencing – Young offenders

15 October 2024

District Judge Shen Wanqin:

1       Youths represent the hope of our society. The public have no greater interest than that a youth should become a good and productive citizen (Teo Siew Peng v PP [1985] 2 MLJ 125). Hence, when a young offender commits a crime, a sentencing judge is faced with a difficult and weighty task. The judge is required to not only scrutinise the life and conduct of the young offender, but to also tailor an appropriate treatment that will mould the offender into a responsible member of the society. This is a sentencing decision that will change the course of a young person’s life in profound ways. As such, it is of paramount importance that the sentencing exercise be undertaken carefully and meticulously, with a view to steering a young offender to the straight and narrow path.

2       Mr AR Ridhwan Bin Abdul Rahim (“Mr Ridhwan”) was a 21-year-old young offender who was working at a club in Concorde Hotel and Shopping Mall (“Concorde”) in the early morning of 20 August 2023, when a fight occurred outside Concorde. His role that day was confined to taking a knife from his colleague, Muhammad Shahrulnizam Bin Osman (“Nizam”), and handing it to another colleague, Mohamad Zachary Danial Bin Mohamad Azhar, knowing that it would be removed from the crime scene. When questioned by the Police about the knife, he lied to shield Nizam from legal punishment. As a result, he faced one charge under s 201(c) read with s 34 of the Penal Code 1871 (“Penal Code”), and one charge under s 182 of the Penal Code. Two other similar charges were taken into consideration in sentencing.

3       Mr Ridhwan, now 22 years of age, pleaded guilty and was convicted on the two proceeded charges on 6 September 2024. I called for a pre-sentence report to assess his suitability for probation. The probation officer, Mr Ben Poh, produced a report on 4 October 2024, finding Mr Ridhwan to be unsuitable for probation (“the First Report”). Mr Poh also disclosed that Mr Ridhwan had been investigated for cheating offences before the incident on 20 August 2023, and the investigations for the offences were still pending (“the pending investigations”). Given the new information concerning the pending investigations, and notwithstanding the parties’ willingness to proceed with the sentencing for the present offences, I found it inappropriate to sentence Mr Ridhwan without knowing the outcome of the pending investigations. This was because he would suffer a real risk of prejudice if he was subsequently charged and sentenced separately for the cheating offences. Further, the pending investigations or the outcome of such investigations would likely affect his suitability for probation.

4       Fortunately, those concerns were obviated when the Prosecution informed on 7 October 2024 that they had reviewed the matter and decided not to tender any additional charges. Given these developments, I called for a supplementary report to re-assess Mr Ridhwan’s suitability for probation. In the supplementary report dated 14 October 2024, Mr Ridhwan was assessed to be suitable for probation (“the Second Report”).

5       The issues before me are (a) whether Mr Ridhwan should be treated as a youthful offender for the purposes of sentencing; (b) whether rehabilitation retains its primacy in the sentencing matrix; and (c) whether probation is the most appropriate sentence to impose in this case. Having considered the matter, I find that the questions should be answered in the affirmative, and therefore order Mr Ridhwan to undergo probation for a period of 18 months in lieu of imprisonment, on the conditions recommended in the Second Report. I now explain the reasons for my decision.

Whether Mr Ridhwan should be considered a youthful offender

6       In A Karthik v PP [2018] 5 SLR 1289 (“Karthik”) at [37], the High Court explained that there are at least two primary reasons for sentencing youthful offenders on the basis of rehabilitation being the dominant consideration:

(a)     First, the retrospective rationale, which seeks to justify giving a young offender a second chance by excusing his actions on the grounds of his youthful folly and inexperience.

(b)     Second, the prospective rationale, which seeks to justify rehabilitation as the preferred tool to discourage future offending, on the grounds that: (i) society will stand to benefit considerably from the rehabilitation of young offenders; (ii) young offenders will be more receptive to reformative efforts; and (iii) young offenders appear to suffer disproportionately when exposed to punitive options such as imprisonment as compared to adult offenders.

7       In this case, as Mr Ridhwan was at the threshold age of 21 at the time of the offences, the retrospective rationale applies to him, whereas the prospective rationale does not apply as strongly (Karthik at [45]). Even then, he can be considered a youthful offender for sentencing purposes because (see Karthik at [47]–[50]):

(a)     First, there is nothing to displace the continuing relevance of the retrospective rationale for sentencing such offenders on the basis of rehabilitation being the dominant sentencing consideration.

(b)     Second, an older offender like Mr Ridhwan may respond more meaningfully to rehabilitation and is therefore more suited for a rehabilitative sentencing option.

(c)     Third, Mr Ridhwan had, in the year that had elapsed since the commission of the present offences, progressed positively in his rehabilitation, by keeping himself meaningfully engaged in work commitments and by steering clear from negative social influences.

8       For the reasons outlined above, Mr Ridhwan should be considered a youthful offender for sentencing purposes.

Whether rehabilitation retains its primacy in the sentencing matrix

9       As Mr Ridhwan is a youthful offender, the two-stage approach for sentencing youthful offenders, set out in PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”), applies to him. Under this approach, the task for the court, at the first stage of the sentencing process, is to determine whether rehabilitation retains its primacy in the sentencing matrix. The primary sentencing consideration for youthful offenders will generally be rehabilitation, unless (a) the offence is serious, (b) the harm caused is severe, (c) the offender is hardened and recalcitrant; and/or (d) the conditions which make rehabilitative sentencing options viable do not exist (Karthik at [65]). At the second stage, the court is to select the appropriate sentence that will best meet the primary sentencing consideration identified and prioritised at the first stage (Karthik at [67]). I now apply the Al-Ansari approach to this case.

10     At the first stage, I find that rehabilitation retains its primacy in the sentencing exercise. It is not disputed that the present offences are serious as they pervert the course of justice and undermine the rule of law. Further, the offences would have caused the Police to expend additional time and resources to investigate and recover the weapons. While the harm caused was not insignificant, it was also not so severe as to displace rehabilitation as the primary sentencing consideration. Notably, Mr Ridhwan was neither a hardened nor recalcitrant offender who needed to be deterred as a matter of priority. He is a first offender who has no criminal history and does not exhibit anti-social behaviours. His family and his schools have given positive reports on his conduct. The fact that he eventually admitted to the offences during investigations also shows that he is not a hardened offender.

11     More significantly, there exists conditions which make rehabilitative sentencing a viable option. In this regard, I find that Mr Ridhwan’s capacity for rehabilitation is demonstrably high for several reasons (see the factors set out in Leon Russel Francis v PP [2014] 4 SLR 651 at [15] and applied in Karthik at [66] in determining whether there exist conditions which make rehabilitative options viable). First, he shares a good and close relationship with the core members of his family and has a strong support system to supervise him and to assist him in his rehabilitation. His mother, being the primary caregiver and disciplinarian, monitored him closely and made the effort to communicate regularly with him. His eldest sister frequently offered her encouragement, advice and support, while his younger siblings often spent their recreational time with him. His family had regular outings and partook in meals together. He also has a group of three close friends who provided positive influence and support, by advising him to be more discerning towards his choices of peers and work after learning about his offences.

12     Second, Mr Ridhwan’s offences amount to a one-off aberration. He does not have any criminal history and had consistently demonstrated good conduct until the commission of the present offences. After the offences, he engaged in meaningful employment and remained crime-free. He was employed as a paramedic from September 2023 to January 2024, and a warehouse assistant from February 2024 until the date of his remand on 28 June 2024. Even after he was remanded, he maintained good conduct in Prisons. His positive conduct is a good indicator of his robust commitment towards leaving his errant ways (Karthik at [73]).

13     Third, Mr Ridhwan demonstrated genuine remorse for his actions, by acknowledging the seriousness of his offences and their implications, verbalising regret for his role in concealing evidence and obstructing justice, and pleading guilty at the earliest opportunity. He sincerely reflected on his wrongdoing and candidly acknowledged that he should have listened to his mother’s advice to quit his job at the club earlier. Crucially, he could have taken the easy way out by seeking an imprisonment term which could be backdated to the date of his remand, but he did not do so. As the aggregate imprisonment term for the present offences is roughly equivalent to his period of remand, he will likely be released from Prisons by today, if he is sentenced to an imprisonment term. Yet, he demonstrated contriteness, maturity of thought and commitment to reform, by seeking the option of probation.

14     Fourth, Mr Ridhwan does not present any significant risk factors. Despite the risk factors noted in the First Report, he was assessed to have a low risk of re-offending. He has no history of anti-social behaviours or criminal antecedents and does not associate with other members of secret societies. He terminated his employment at the club immediately after the offences and ceased contact with his ex-colleagues who instigated the offences.

15     Given the factors above, rehabilitation should remain the dominant sentencing consideration for Mr Ridhwan.

Whether probation is the appropriate sentence

16     At the second stage of the Al-Ansari framework, the court must select the appropriate sentence in view of the primary sentencing consideration identified and prioritised at the first stage (Karthik at [67]). In this regard, I accept that the First Report and the Second Report are both helpful in assisting the court to make a more informed sentencing decision, as they contain important information about Mr Ridhwan elicited during interviews by the probation officer (Praveen s/o Krishnan v PP [2018] 3 SLR 1300 (“Praveen”) at [64]). However, I am mindful that the opinion of the probation officer is not conclusive on the issue of sentencing; the sentencing decision ultimately lies within the exclusive remit of the court alone (Praveen at [65]–[67]).

17     In this case, I hesitate to rely on the recommendation in the First Report because I am not convinced that a balancing of the various factors necessarily yielded the conclusion that Mr Ridhwan was unsuitable for probation. While Mr Poh took the position that probation was not suitable because the risk factors outweighed the protective factors, the basis for the position was not entirely clear. On a more superficial level, an equal number of risk factors and protective factors were noted in the First Report. On a more nuanced level, the risk factors that were noted, such as poor consequential thinking and disregard for the law, were common to individuals who flouted the law, and were not so exceptional as to outweigh the protective factors. Significantly, despite the risk factors, Mr Ridhwan’s risk of re-offending was ultimately assessed to be low.

18     On the other hand, there were numerous protective factors noted in this case, and these were strong and exceptional factors that demonstrated Mr Ridhwan’s high capacity for rehabilitation. These protective factors include his consistently good conduct prior to the offences, his close relationship with family members, his sense of responsibility and family commitment and the absence of deep-seated antisocial behaviours and criminal antecedents. Hence, on a proper balance of the relevant factors, the protective factors appear to outweigh the risk factors. When questioned about the basis for his assessment in the First Report, Mr Poh rightly did not pursue the point, and simply acknowledged that there were many protective factors in this case. Mr Poh also reviewed his assessment following the Prosecution’s decision not to prosecute the cheating offences and came to the same conclusion as I did – that Mr Ridhwan is suitable for probation.

19     Where rehabilitation is the dominant sentencing consideration, probation is an appropriate sentence, as it places rehabilitation at the front and centre of the court’s deliberation (Karthik at [67]). While there is also a need for deterrence given the seriousness of the offences committed, I find that the stringent conditions for probation, proposed by Mr Poh in the Second Report, are sufficient to meet the objective of deterrence (Praveen at [75]). Accordingly, I sentence Mr Ridhwan to undergo probation, and impose the conditions recommended by Mr Poh.

20     This case demonstrates the importance of placing all relevant information before the sentencing judge, especially in cases involving youthful offenders, to enable the judge to arrive at a fair, informed and appropriate sentencing decision that best fits the offence and the offender. In this case, both parties did not disclose the fact that there were pending investigations at the time of the plea of guilt. The pending investigations were only revealed following Mr Poh’s comprehensive and diligent social investigations, which were of considerable assistance to me. Even though the omission appears to be an innocuous one, the outcome in this case may have been different if the pending investigations were not disclosed and resolved before sentencing.

21     Similarly, I note that both parties did not have any questions for Mr Poh even though they, in submitting for probation as a sentencing option notwithstanding the recommendation in the First Report, necessarily disagreed with the recommendation. In such situations, it is only fair that the parties put their case to the probation officer, or question him on his assessment, to afford him the opportunity to explain his position. This approach will also assist parties in gaining a proper understanding of the probation officer’s position and the reasons for the same. That said, it is commendable that both parties had, despite the recommendation in the First Report, independently arrived at their decision to press for probation as a sentencing option, by putting Mr Ridhwan’s interests and needs at the forefront of their consideration.

Conclusion

22     The evidence before me shows Mr Ridhwan to be a young person who has merely taken a misstep in life owing to his lack of maturity and his misplaced sense of loyalty to his peers. Probation is well suited for an offender like Mr Ridhwan, who will benefit from the robust supervision, support and guidance provided by the probation officer and the family members rallying around him. Mr Ridhwan should treasure this opportunity given to him and make a concerted effort to become a good and productive citizen. Given his strong rehabilitative capacity, I trust that he will internalise the lessons learnt from this incident and work closely with the probation officer to effect positive transformations in his life.

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Public Prosecutor v Caleb Sho Khai Lok
[2024] SGDC 270

Case Number:District Arrest Case no. 900648-2024 and others, Magistrate's Appeal No. 9176-2024-01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Eddy Tham
Counsel Name(s): Deputy Public Prosecutor Ethan Lee for the Public Prosecutor; Defence Counsel A Revi Shanker (M/s ARShanker Law Chambers) for the Accused.
Parties: Public Prosecutor — Caleb Sho Khai Lok

Criminal Law – Criminal Procedure and Sentencing – Cheating by impersonation under section 419 of the Penal Code 1871 – Driving in breach of the conditions of his provisional driving licence under section 36(5) of the Road Traffic Act 1961) – Criminal misappropriation under section 403 of the Penal Code Cap 224 – Reformative training and probation

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9176/2024/01.]

15 October 2024

District Judge Eddy Tham:

Background

1       This is the accused’s appeal against a sentence of reformative training.

2       The Accused pleaded guilty to and was convicted on 14 March 2024 in respect of three charges, one for cheating by impersonation under section 419 of the Penal Code 1871, one charge for driving in breach of the conditions of his provisional driving licence under section 36(5) of the Road Traffic Act 1961(amalgamated pursuant to section 124(4) of the CPC) and one charge for criminal misappropriation under section 403 of the Penal Code Cap 224, Rev Ed 2008.

3       In addition, the Accused admitted and consented for 3 charges under section 419 of the Penal Code 1871 (amalgamated pursuant to Section 124(4) of the Criminal Procedure Code 2010 (“CPC”)), one charge for driving without insurance coverage under section 3(1) Motor Vehicles (Third-Party Risks and Compensation) Act 1960 and one charge under section 3(1) of the Computer Misuse Act (Cap 50A, Rev Ed 2007).

4       Pre-trial reports to assess the suitability of the Accused for probation and reformative training was called for.

5       The Accused was found suitable to undergo both probation and reformative training.

6       I found that reformative training was the more appropriate sentence and I accordingly sentenced the Accused to undergo a minimum of 12 months of reformative training.

7       The Accused being dissatisfied with the sentence has filed an appeal against it. He is presently released on bail pending the appeal.

The Charges

8       The three charges which Accused pleaded guilty to are set out here in full:

DAC 900648-2024

… are charged that you, on 114 separate occasions, between 02 March 2022 to 18 October 2022, somewhere in Singapore, did cheat BlueSG Pte Ltd (“BlueSG”) by personation, to wit, by using a BlueSG account in the name of one Sho Win Siew and representing yourself to be the said Sho Win Siew, and in doing so, did deceive BlueSG Pte Ltd into believing that you were the said Sho Win Siew, a fact which you knew to be false, and by such manner of deception, you dishonestly induced BlueSG Pte Ltd into delivering property in the form of BlueSG rental cars, an act which BlueSG Pte Ltd would not have done if it was not so deceived, which taken together amounts to a course of conduct, and you have thereby committed an offence punishable under section 419 of the Penal Code 1871 which charge is amalgamated pursuant to section 124(4) of the Criminal Procedure Code 2010 (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC;

DAC 900650-2024

… you, on 114 occasions on 2 March 2022 to 18 October 2022 in Singapore, whilst driving motor vehicle, did fail to comply with the conditions subject to which your provisional driving licence was granted, to wit, by driving the said motor vehicle without displaying the distinguishing mark set out in the Fifth Schedule of the Road Traffic (Motor Vehicles, Driving Licence) Rules on the front and rear of the motor vehicle and driving the said motor vehicle without the supervision of a licensed instructor with a Class 3 driving licence, and you have thereby committed an offence under section 36(5) of the Road Traffic Act 1961 and punishable under section 131(2)(a) of the same Act, which the charge is amalgamated pursuant to section 124(4) of the Criminal Procedure Code 2010 (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC;

and

MAC 900312-2024

… you, on 2 November 2021, at about 7.30pm, at Endless Bar, 8B Circular Rd, Singapore 049364, did dishonestly misappropriate certain property, to wit, one Black Apple iPhone 11, 64GB, IMEI: 352915117839459, valued at SGD$1,500.00/-, belonging to one Elson Lim Ming Sheng, and you have thereby committed an offence punishable under Section 403 of the Penal Code, Chapter 224 (Rev. Ed. 2008).

The Statement of Facts

Background facts

9       The accused is Caleb Sho Khai Lok, a 20-year-old male Singaporean at the time of the conviction.

Facts relating to the 2nd charge (MAC-900312-2024): s 403 of the Penal Code (Cap 224, Rev Ed 2008)

10     On 2 November 2021, the Accused was at Endless Bar, 8B Circular Rd, Singapore when he was joined by the victim, Elson Lim Ming Sheng. The Accused and the victim were friends. Sometime in the morning on the same day, the Accused noticed that a black Apple iPhone valued at $1,500 (“the iPhone”) belonging to the victim was left unattended on a sofa. The iPhone is a movable property. The Accused knew that the iPhone belonged to the victim. At about 7.30pm, the Accused took the iPhone and placed it in his wallet with the intent to dishonestly misappropriate the iPhone to his own use.

11     When the victim discovered that the iPhone was not at the sofa, he looked around the vicinity but was unable to locate the iPhone. The victim then asked the Accused if he could check his pockets. The Accused indicated that he did not have the iPhone and allowed the victim to check his pockets. To prevent the victim from locating the iPhone, before the victim checked the Accused’s pockets, the accused set aside his wallet containing the iPhone. The victim was therefore unable to locate the iPhone.

12     On 3 November 2021, the victim was able to use the “Find My iPhone” mobile application to find the general location of the iPhone. The “Find My iPhone” mobile application indicated that the iPhone was in the general vicinity of The Arc at Tampines, which is a condominium that the victim knew to be the Accused’s residence. The victim contacted the Accused and asked the Accused if he took the iPhone. The Accused again denied doing so. The Accused invited the victim to search his room, which the victim accepted. The victim searched the Accused’s room but was unable to find the iPhone.

13     The victim nonetheless suspected that the Accused had taken the iPhone and informed the investigation officer of the same. The Accused was called down to the Tampines Neighbourhood Police Centre to be interviewed by the investigation officer. After the interview, the Accused contacted the victim and returned the iPhone to the victim.

14     By virtue of the foregoing, the Accused has committed an offence punishable under section 403 of the Penal Code (Cap 224, Rev Ed 2008).

Facts relating to the 5th charge (DAC-900648-2024): s 419 of the Penal Code 1871(“PC”)

15     Sometime before 28 February 2022, the Accused was interested to rent a car from BlueSG Pte Ltd (“BlueSG”), a company that provides a car rental service. To do so, he had to set up an account with BlueSG through BlueSG’s mobile phone application. The Accused knew that he would not be able to set up an account with BlueSG as BlueSG requires any prospective user to submit a picture of that user’s valid driving license. BlueSG has this requirement to protect road users from unqualified drivers. At the material time, the Accused did not have a valid driving license.

16     The Accused formed the intention to deceive BlueSG by representing that he was one Sho Win Siew, a person with a valid driving license, in order to set up a BlueSG account. Sho Win Siew is the Accused’s father and the Accused resided with him. When Sho Win Siew left his wallet unattended at home, the Accused took Sho Win Siew’s driving licence out of the wallet and took a photo of the driving license to deceive BlueSG.

17     On 28 February 2022, the Accused applied for an account with BlueSG. During the application process, he falsely represented that he was Sho Win Siew, and provided the photo of Sho Win Siew’s driving license. BlueSG approved the application, which act it would not have done, had it not been so deceived by the Accused’s impersonation of Sho Win Siew. In the process, an account was created in the name of Sho Win Siew (the “BlueSG account”).

18     On 2 March 2022, the Accused accessed the BlueSG account and rented a car through the BlueSG mobile phone application. By using the BlueSG account, he deceived BlueSG by representing himself as Sho Win Siew, intending to dishonestly induce BlueSG to deliver a BlueSG rental car to him. Through this deception, the accused successfully induced BlueSG to deliver a BlueSG rental car to him.

19     Between 2 March 2022 and 18 October 2022, the Accused used the method described above on a total of 114 occasions to dishonestly induce BlueSG to deliver BlueSG rental cars to him, acts which BlueSG would not do had it not been so deceived. These 114 occasions, taken together, amount to a course of conduct.

20     By virtue of the foregoing, the Accused has committed an offence punishable under Section 419 of the PC, which charge is amalgamated under Section 124(4) of the CPC and punishable under s 124(8)(a)(ii) CPC.

21     Between January 2022 and February 2022, the Accused was given access to a separate BlueSG account and an account with GetGo Technologies Pte Ltd (“GetGo”), which is also a company that provides a car rental service. The accounts were obtained through illegal means and the Accused was aware of this. The accounts were in the name of one Muhammad Shukri Bin Aderes, who is not acquainted with the Accused. In the same manner described above, the Accused dishonestly induced BlueSG and GetGo to deliver BlueSG rental cars and GetGo rental cars respectively to him. This deception resulted in BlueSG providing $114.84 worth of car rental services to the Accused, and GetGo providing $1,830 worth of car rental services to the Accused, for which no payment has been made.

Facts relating to the 7th charge (DAC-900650-2024): s 36(5) of the Road Traffic Act 1961 (“RTA”)

22     On the 114 occasions between 2 March 2022 and 18 October 2022 referred to above, the Accused did not have a valid driving license. During this time, the Accused possessed a provisional driving licence (“PDL”) for Class 3 vehicles. On each of the 114 occasions, the Accused drove the BlueSG rental car. He would drive the car to get to school or just for leisure. On some occasions, he would ferry passengers in his car.

23     As a person to whom a PDL was granted, the Accused was required to comply with the conditions subject to which the PDL is granted. The conditions for the PDL are set out in the Road Traffic (Motor Vehicles, Driving Licences) Rules. The Accused failed to comply with the following conditions:

(a)     Pursuant to s 22(3)(a) of the Road Traffic (Motor Vehicles, Driving Licences) Rules, while the Accused is learning to drive a Class 3 vehicle, the Accused must be under the supervision and in the presence of a licensed instructor who holds a Class 3 licence. On all 114 occasions, the accused drove BlueSG rental cars, which are Class 3 vehicles, without being supervised by, or in the presence of, a licensed instructor with a Class 3 licence.

(b)     Pursuant to s 22(3)(c) of the Road Traffic (Motor Vehicles, Driving Licences) Rules, while the Accused is driving a motor vehicle, the Accused must display in a conspicuous position at the front and at the rear of the vehicle the distinguishing mark set out in the Fifth Schedule. On all 114 occasions, the Accused drove BlueSG rental cars, which are motor vehicles, without displaying the required distinguishing mark.

24     The Accused therefore failed to comply with the conditions for the PDL on at least 114 occasions, which taken together, amount to a course of conduct.

25     On 18 October 2022, while driving along the Pan-Island Expressway in a BlueSG rental car, the Accused was stopped by a Traffic Police officer, who asked to see his licence.

26     The Accused had a passenger, one Esther Lim Xing Hui, in the car with him. When the Traffic Police officer asked to see the Accused’s driving licence via Singpass, the Accused was only able to provide the PDL but did not have a valid driving licence. He was unable to account for why he was driving without a valid driving licence.

27     By virtue of the foregoing, the Accused has committed an offence under section 36(5) of the Road Traffic Act 1961 and punishable under Section 131(2)(a) of the same act, which charge is amalgamated pursuant to Section 124(4) of the CPC and punishable under Section 124(8)(a)(ii) of the CPC.

Antecedents

28     The Accused has no previous convictions.

The Prosecution’s Submission on Sentence

29     The Prosecution sought for a sentence of reformation training on the ground that general and specific deterrence is paramount in the present case.

30     They highlighted the following aggravating factors that show a need for specific deterrence:

(a)     For the criminal misappropriation charge, the Accused had misappropriated the iPhone belonging to his friend and had made use of the trust in their friendship to convince the victim that he had not misappropriated the iPhone.

(b)     The Accused had repeatedly lied to the victim that he had not taken the iPhone, and only came clean after he had been interviewed by the Police.

(c)     For the cheating and driving offences, the Accused committed the offences on at least 114 occasions and only stopped after he was caught by the Traffic Police. This shows a commitment to his criminal conduct.

(d)     The Accused displayed persistence in committing the offence, having gone to great lengths to drive the BlueSG rental car. He created an account using personal details that did not belong to him, then represented he was the person named in the BlueSG account and drove the vehicle without complying with the PDL conditions.

(e)     The Accused has never held a valid driving licence and therefore posed a risk to other road users on the 114 or more occasions that he drove BlueSG rental cars. Furthermore, he ferried passengers around on several occasions, putting those passengers’ safety at risk.

(f)     The Accused has similar TIC charges for cheating by impersonation that show the same modus operandi. Further, for these TIC charges, the Accused received services for which he did not make payment. The Accused has not made restitution for any of these services.

31     The Prosecution also highlighted the following factors that show a need for general deterrence:

(a)     Scam and cybercrimes offences have been on the rise, which was noted by Minister for Home Affairs, Mr K Shanmugam, in a written answer to a Question for Oral Answer (Singapore Parliamentary Debates, Official Reports (7 November 2023) vol 95), stating that “in the last few years, there has been an exponential rise in the number of scam and cybercrime cases”. The Accused’s s 419 PC offences involved elements of deception in inducing car rental services into providing rental cars to him using cyber means. In 2020, Minister of State for Home Affairs Mr Desmond Tan, during Oral Answers to Questions (Singapore Parliamentary Debates, Official Reports (6 October 2020) vol 95), observed that the most popular scam crimes were the e-commerce scam, due to the prevalence of the Internet. The second most popular scam were impersonation scams. The present case discloses offences wherein the Accused made use of the cloak of anonymity provided by the Internet to impersonate other people in order to deceive BlueSG and GetGo into delivering rental cars to him.

(b)     Deterrence is paramount for offences that are difficult to detect. The fact that the offence was committed through the Internet shows that it was difficult to detect. BlueSG and GetGo had no way to verify that the person they had delivered the rental car to was indeed the person that the Accused represented himself to be. The only reason the Accused’s 114 occasions of cheating by personation were uncovered was because he was stopped by the Traffic Police.

(c)     There is a need to deter PDL licensees from failing to comply with the PDL conditions. These conditions are put in place to protect both the licensee and other road users.

(d)     The Accused’s cheating offences were effectively to bypass requirements put in place by BlueSG and GetGo for the safety of road users. There is a need to send a strong message against those who commit cheating offences to bypass requirements put in place for safety reasons. As identified in PP v Law Aik Meng [2007] 2 SLR(R) 814 (at [24(d)]), offences affecting public safety should warrant general deterrence.

32     The Prosecution also submitted that a disqualification order would be necessary to serve as specific deterrence for the Accused given the numerous times he drove without complying with the PDL conditions. The need to impose a disqualification order militates against probation, since a disqualification order cannot be imposed in addition to a probation order.

Mitigation

33     The Defence asserted that there have been numerous studies conducted on the effects of incarceration on young adults and it was well recognized that incarceration should be the last resort for young adults.

34     Given their capacity to change, young adults are more likely to benefit from rehabilitative sentences and restorative measures. Further, the Defence argued that it was well established that custody can have a particularly damaging effect on young adults given their stage of development and it has a range of other damaging consequences such as increase in the likelihood of offending.

35     The Defence thus submitted that rehabilitation rather than imposing preventative, retribution or deterrent sentences be the main focus of sentencing.

36     The Accused had expressed his wish to pursue his further studies and obtain a degree in Hotel and Tourism. The Defence Counsel thus urged the Court to give him a second chance to recalibrate his direction in life so that he could attempt to further purse his education, carve out a career path and be a contributing member of society.

REASONS FOR THE SENTENCE

The sentencing principle

37     When dealing with young offenders below 21, it is well established that the primary focus of sentencing ought to be one of rehabilitation. This is so, given the lesser culpability associated to the acts of a person who is still of tender and immature age and to reflect the greater capacity for change that is inherent in young people.

38     On the other hand the primacy of this sentencing principle can at times be reduced or even displaced in cases when there is a greater need for deterrence or retribution when the nature of the offence is serious such as where grave harm has been caused. In PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Mohammad Al-Ansari”), at [34] an example of a case where rehabilitation was no longer the dominant consideration was cited in PP v Mohamed Noh Hafiz bin Osman (2003) 4 SLR(R) 281 , where a 17 year-old offender was sentenced to 20 years’ imprisonment and 24 strokes of the cane due to the number and nature of the offences. The offender had pleaded guilty to 2 charges of rape, 4 charges of aggravated outrage of modesty, 3 charges of unnatural sex and a robbery charge. In addition, he also had 19 other charges taken into consideration which included 9 charges of aggravated outrage of modesty and 4 charges of robbery.

39     Even if the offences committed are not so serious to completely displace rehabilitation as the dominant principle, where deterrence is still needed, reformative training may represent a better balance between the need for rehabilitation and deterrence (Mohammad Al -Ansari at [65]).

40     In deciding where the balance lies on the spectrum, relevant factors for consideration include (see Mohammad Al-Ansari at [67]):

(a)     the seriousness of the offence;

(b)     the culpability of the offender;

(c)     the existence of antecedents;

(d)     the nature of the rehabilitation best suited for the offender;

(e)     the availability of familial support in the rehabilitative efforts; and

(f)     any other special reasons or need for rehabilitation.

Applying the sentencing principles

The seriousness of the offences

41     I noted several factors that militated towards a more deterrent approach needed for sentencing. First, the seriousness of the offences committed. For the driving offences, the Accused had clearly put public safety at risk. He had driven on 114 occasions without a valid driving licence and without any supervision as required by the law. On some occasions, he had also ferried passengers thereby putting those passengers’ lives at risk too. The audacity of his offences is further evidenced by the fact that he had carried on such a conduct on numerous occasions as set out in the charge taken into consideration under section 419 of the Penal Code where between January 2022 and February 2022, the Accused dishonestly induced BlueSG and GetGo to deliver BlueSG rental cars and GetGo rental cars respectively to him and allowed him to thereby make use of the vehicles without paying for them.

42     Furthermore on each occasion, he had also driven without third party insurance coverage thereby putting any potential victim to greater harm of not being able to be fully compensated. It is clearly fortuitous that no actual harm was caused to any other road users during the numerous occasions that the Accused had driven on public roads.

43     I also noted that the Accused had committed another offence that calls out for general deterrence. This is in the case of another charge taken into consideration, the offence under section 3(1) read with Section 10 of the Computer Misuse Act (Cap 50A), by handing over his bank account’s user ID and access code to others. This kind of offences had come under new sentencing guidelines which called for greater punishment in order to stem the prevalence of such offences. The potential harm for such offences has been widely publicised to the public as to how scammers had made use of bank accounts provided by offenders such as the Accused in order to siphon off the monies scammed.

The prevalence of the offences

44     In addition, the culpability of the Accused would also have been enhanced by the prevalence of the cheating offences he had committed. The Accused had consciously and deliberately exploited the ease of rental of such vehicles using the false identity to circumvent the checks put in place to ensure that cars are rented out only to fully qualified drivers.

45     He was likely to have persisted with his offences had he not been stopped by a Traffic Police Officer whilst he was driving for his licence to be checked which thus put an end to his illegal escapades.

46     He had cheated and driven on more than a hundred occasions without being detected. He had revealed to the officer during the preparation of the Pre-Sentencing Report on Reformative Training (“RTC Report”) that he had planned his route and time of offence and drove carefully to minimise the possibility of getting caught[note: 1]. The difficulty at detection of such offences is also another factor that calls for greater deterrence.

Prior Intervention

47     There were prior interventions with rehabilitative efforts applied on the Accused. The Accused’s school record as detailed in the Probation Report[note: 2] disclosed poor conduct as he had been suspended due to late coming, displayed open defiance, and was caught for smoking and vaping on 6 occasions from 2018 to 2020 and was caned.

48     He had also been caned once for one incident of vandalism and twice for two theft incidents.

49     He was placed on Guidance Programme for dishonestly misappropriating a schoolmate’s phone in 2020 and issued with a 24-month conditional warning in 2021 for the criminal misappropriation offence in MAC 900312/2024 for which he breached and hence was subsequently charged for this incident[note: 3].

50     The Accused had thus repeatedly wasted the numerous chances to him and persisted with the same disciplinary issues despite these past rehabilitative efforts.

The persistence of the Accused’s criminal behaviour post-offences

51     The RTC Report disclosed that the Accused had not changed much since the commission of the offences. He enlisted for National Service (“NS”) in November 2022. He committed violations of disobedience of general orders or conduct to the prejudice of good order or non-compliance with a lawful duty or order on eight occasions between March 2023 and January 2024.

52     The Accused had shared that he behaved poorly initially for example, deliberately delayed completion of work assigned and did not get along with his peers. However, his attitude towards NS improved since his sentence to Detention Barracks for Conduct to the Prejudice of Good Order in June 2023. He claimed that because of the sentence, he realised the seriousness of the consequences of his offences and improved on his behaviours[note: 4].

53     Caleb shared that his relationship with his parents improved since his sentence to Detention Barracks in June 2023 with him calling them more often and having meals with them weekly and that the curfew hours stipulated by the Court had increased the opportunities to bond with his family. His parents corroborated his account that they communicated more and spent more time together as a family since his sentence in Detention Barracks[note: 5].

54     However, the RTC report highlighted two violations in January 2024 in which he was found in possession of e-cigarette and subsequently provided false information to his superior. This offence was similar to the offences committed in March 2023 for which he was sentenced to Detention Barracks. The repeated offence indicated that despite the improvements made, the Accused continued to violate SAF rules and regulations pointing to his issues with compliance[note: 6].

55     The number of violations was in fact more than 2 after his stint in the Detention Barracks as set out in the Probation Report. The Accused served 10 days’ detention at the Detention Barracks on 1 June 2023 for providing false information to his superior by lying that his friend was not vaping.

56     Thereafter, he committed the following violations[note: 7] post-Detention Barracks:

(a)     Given 7 days of Stoppage of Leave(“SOL”) on 17 July 2023 for possessing obscene material in his phone;

(b)     Given 21 days of SOL on 17 July 2023 for leaving his house while on medical leave;

(c)     Fined $100 for smoking in the bunk on 23 August 2023;

(d)     Given 7 days of SOL on 26 October 2023 for failing to comply with his superior’s instructions by going to the canteen without permission;

(e)     Fined $300 for being in possession of an e-cigarette on 11 January 2024.;

(f)     Given 14 days of SOL on 12 February 2024 for providing false information to his superior that he did not bring a vape into camp.

57     His persistence in committing violations in NS even after his time in the Detention Barracks, contrary to his assertion of it being a wake-up call for him, showed that he had difficulty in internalising any lessons learned and continued to struggle with compliance of regulations imposed on him by his superiors. Significantly, the Accused’s last violation, which was as recent as February this year for lying to his superior, was a similar violation to the one for which he was sentenced to detention just about 8 months earlier.

58     This undermined both his assertion that he had realised the folly of his ways and the consequences of his actions with the Detention Barracks sentence, as well as the positive effect of his closer bond with his family. These touched on two the factors raised by the Probation Officer as protective factors that supported his assessment that probation is a suitable option for the Accused, namely:

(a)     Improvement in Caleb’s performance and conduct in NS after his stint in the Detention Barracks suggests that he is able to abide by rules and structure, as well as demonstrates insight into his misbehaviours and the need to make positive changes when faced with a protective factor with consequences.

(b)     Caleb’s close relationship with his parents and their willingness to improve their parenting and supervision of him are strengths that could be utilised to optimise his rehabilitation in the community.

59     When questioned by the Prosecution on this factor of the Accused’s improved work performance, conduct and performance, the Probation Officer clarified that this was based on what the Accused’s NS officer wrote and he was not able to say whether this improvement was only after the last violation in February 2024[note: 8]. The Probation Officer also agreed with the Prosecution that given the number of violations post Detention Barracks, any improvement was inconsistent and haphazard[note: 9].

60     Given that his patchy record in NS even after a stint in Detention Barracks, I am of the view that whilst he was still found to be suitable for probation, the strength of the recommendation for probation had clearly been weakened.

61     It is also disturbing that he was less than forthcoming when he was being questioned during the preparation of the RT Report on this issue. It was highlighted in the RTC Report that he only disclosed one punishment during NS, contrary to the report from NS that he had eight punishments meted out[note: 10].

Conclusion

62     The Accused had committed the offences at a relatively youthful age of 18-19 years old and hence rehabilitation is clearly a relevant and important sentencing principle. The offences committed, whilst serious and persistent, were not so heinous or outrageous that rehabilitation is wholly displaced by the other sentencing principles such as deterrence and retribution.

63     Nonetheless, the overall picture presented by the Accused was a person who had not been able to turn away from crime and violation of rules despite many chances and previous punishments inflicted on him.

64     A clearly more deterrent approach in order to ensure that the rehabilitative efforts are brought to bear upon the Accused to steer him away from crime. In the circumstances, reformative training with its structured environment and a higher level of deterrence would be more appropriate to serve the twin objectives of rehabilitation and deterrence.

65     I have accordingly sentenced the Accused to undergo level 2 intensity of rehabilitation as recommended in the RTC Report. As this level would require a 12-month period of intervention, I have sentenced the Accused to undergo 12 months of reformative training.

[note: 1]RTC Report page 8 under section of Attitude/Orientation

[note: 2]Probation Report pages 7-8 under section of Education at para 5.2 under sub-section of Behaviour

[note: 3]Probation Report at page 11 under section of Risky Behaviours with the sub-heading of Pilfering

[note: 4]RTC Report page 6, [2] under section on Education/Employment.

[note: 5]RTC Report pages 5-6 under section on Family.

[note: 6]RTC Report page 6, [4] under section on Education/Employment.

[note: 7]Probation Report pages 8-9 under section on Employment/National Service.

[note: 8]Notes of Evidence, 19 August 2024, 4/4-22

[note: 9]Notes of Evidence, 19 August 2024, 3/18-4/3

[note: 10]RTC Report page 5 under section on Presenting Behaviour

"},{"tags":["Criminal Procedure and Sentencing – Sentencing"],"date":"2024-10-15","court":"District Court","case-number":"DAC-924048-2020 & ors, Magistrate's Appeal No 9187-2024-01","title":"Public Prosecutor v Lim Ee Zheng, Jerron","citation":"[2024] SGDC 266","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32329-SSP.xml","counsel":["DPPs Matthew Choo and Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor","Mr Chua Shi Jie (RCL Chambers Law Corporation) for the Accused."],"timestamp":"2024-10-21T16:00:00Z[GMT]","coram":"Toh Han Li","html":"Public Prosecutor v Lim Ee Zheng, Jerron

Public Prosecutor v Lim Ee Zheng, Jerron
[2024] SGDC 266

Case Number:DAC-924048-2020 & ors, Magistrate's Appeal No 9187-2024-01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Toh Han Li
Counsel Name(s): DPPs Matthew Choo and Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor; Mr Chua Shi Jie (RCL Chambers Law Corporation) for the Accused.
Parties: Public Prosecutor — Lim Ee Zheng, Jerron

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9187/2024/01.]

15 October 2024

Principal District Judge Toh Han Li:

Introduction

1       The Accused, a 29-year-old male Singaporean, pleaded guilty before me to the following proceeded charges and was sentenced as follows:

Offence

Court’s sentence

YouTrip fraudulent scheme

12 charges under s 3(1) r/w ss 10(1) and 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”)

(5th, 8th, 10th , 11th, 13th, 16th, 19th, 20th, 21st, 28th, 38th and 45th charges)

Five to six months’ imprisonment per charge

(10th, 11th, 16th, 19th , 38th charges to run consecutively)

Driving-related offences

Three charges under s 35(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) (pre-2019 amendment)

(92nd, 98th and 104th charges)

One week’s imprisonment per charge

(all sentences concurrent)

Two charges under s 182 of the Penal Code (Cap 224, 2008 Rev Ed)

(88th and 90th charges)

One week’s imprisonment (88th charge)

Two weeks’ imprisonment (90th charge)

(90th charge to run consecutively)

Two charges under s 35(1) of the RTA or Road Traffic Act 1961 (“RTA 1961”) (post-2019 amendment)

(114th and 120th charges)

Six weeks’ imprisonment

Five years’ Disqualification for All Classes (“DQAC”) per charge

(114th charge to run consecutively)

Two charges under s 129(2)(d) of the RTA

(108th and 119th charges)

Six weeks’ imprisonment per charge

(108th charge to run consecutively)

One charge under s 84(3) r/w s 84(7) of the RTA

(118th charge)

Two weeks’ imprisonment

(consecutive)

Cheating offence

One charge under s 417 Penal Code (Cap 224, 2008 Rev Ed) (“PC”) r/w s 124(4) and p/u s 124(8) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)

(112th charge)

Nine months’ imprisonment

(consecutive)

Enlistment Act offences

One charge under s 9 of the Enlistment Act (Cap 93, 2001 Rev Ed) (“Enlistment Act”)

(110th charge)

$6,000 fine in default (“i/d”) three weeks imprisonment

One charge under s 10 (2) of the Enlistment Act

(111th charge)

$4,000 fine i/d two weeks imprisonment

Global sentence

36 months’ and 16 weeks’

imprisonment, $10,000 fine and five years’ DQAC

(backdated to 28 September 2022)



2       99 charges were taken into consideration for the purposes of sentencing (“TIC charges”). These TIC charges included a YouTrip fraudulent scheme and were offences under s 3(1) r/w ss 10(1) and s 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed), using benefits from criminal conduct under s 47(1)(c) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act Cap 65A, as well as various driving-related offences under the RTA and the Motor-Vehicle (Third Party Risk and Compensation Act).

3       The Accused has appealed against his sentences and is currently serving sentence. While the Accused had sought bail pending the appeal, the Prosecution objected to bail given the history of the case.

4       The Accused was arrested on 11 February 2019 and thereafter remanded for investigations into his involvement in the YouTrip fraudulent scheme until 20 February 2019. He was released on court bail on 20 February 2019.

5       On 16 August 2021, he appeared in court for his plead guilty mention, but the plead guilty mention did not proceed as he had committed fresh offences while on bail. When the Accused was informed of these fresh investigations and the Prosecution’s intention to revoke bail, he produced a medical certificate stating that he was unfit to attend court that day. The court then adjourned the mention.

6       The subsequent court mentions from September 2021 were rescheduled repeatedly after the Accused applied to reschedule these mentions on the basis that he was medically unwell. From September 2021 onwards, the Accused became uncontactable to the authorities, who required him to assist with investigations for various fresh offences he had committed. A warrant to arrest (with no bail offered) was issued by the court against the Accused on 25 April 2022 and he was arrested by the Police on 28 September 2022 and was remanded up to the date of the plead guilty mention before me.

7       In view of the case history, including the fact that he had committed offences on bail, his non-responsiveness to the authorities and his being at large until he was eventually arrested and thereafter being in remand till the plead guilty mention, I did not grant bail pending the Accused’s appeal.

8       The Accused has paid the $6,000 fine and was granted until 29 November 2024 to pay the $4,000 fine.

Statement of Facts

The YouTrip fraudulent scheme

9       The co-accused persons in the YouTrip fraudulent scheme were as follows:

a.     Wong Chen Yui (“Wong”), a male 35-year-old Singaporean;

b.     Loh Hong Jun (“Loh”), a male 27-year-old Malaysian (Singapore PR);

c.     Ong Bee Lay (“Ong”), a female 37-year-old Singaporean;

d.     Han Shuzhen (“Han”), a female 37-year-old Singaporean; and

e.     Bai Siyan (“Bai”), a female 39-year-old Singaporean

10     On 1 February 2019, a representative of You Technologies (Singapore) Pte Ltd lodged a police report informing that they had received many transaction disputes connected to at least 18 user accounts involving 76 credit and debit cards.

11     The victim company was You Technologies (Singapore) Pte Ltd. Its core business is the provision of the “YouTrip” payment service, a multi-currency e-wallet (the “YouTrip account”), which could be accessed via a mobile application, the “YouTrip app”, combined with a contactless prepaid Mastercard (the “YouTrip card”).

12     To register for a YouTrip account, a user was required to submit his personal information via the YouTrip app and accede to the terms and conditions – he was not authorised to (a) use the YouTrip account to receive fraudulent funds, nor (b) allow any other person the use of or access to his YouTrip card.

13     The YouTrip card could be used (a) at merchant or retail points, or (b) to withdraw the stored value in the YouTrip account in cash from automated teller machines (“ATMs”) located overseas (ie, outside of Singapore).

14     To top-up the stored value, a user would first have to register his credit or debit card details. At the time of the offences, the victim company did not require a one-time-password (“OTP”), or any other authentication process, to register such card details. Each account was permitted to have multiple cards registered.

15     To perform a top-up, the user would access the bank account linked to the credit/debit card via the YouTrip app and select the option for funds to be transferred from the bank account to the YouTrip account. No OTP or authentication was required for each top-up performed.

16     At all material times, the data in relation to each YouTrip account was accessible via the YouTrip app through the victim company’s computer system, hosted on the Amazon Cloud Server located in Singapore.

17     Sometime in 2018, the Accused realised that there was a security flaw in the YouTrip payment service, whereby credit/debit cards could be registered on the YouTrip app and top-ups performed without any requirement for an OTP. He shared his plan to use stolen credit or debit card information to perform unauthorised top-ups to YouTrip accounts with the other co-accused persons. The modus operandi of the syndicated fraud operation on YouTrip was as follows:

18     Opening of YouTrip accounts. The Accused requested Loh, Wong and one Nua We Beng to open YouTrip accounts, and hand over control of the accounts by providing him with the physical YouTrip cards and login details. The Accused also requested that they obtain more YouTrip accounts for the scheme’s use. Wong and Loh in turn persuaded 16 other individuals to open YouTrip accounts. The Accused offered a commission of between S$200 to S$1,000 for each YouTrip account obtained.

19     Obtaining stolen credit or debit card information: Wong also agreed to help the Accused obtain credit/debit card information, so that the Accused could use such information to perform the top-ups. Wong agreed to help the Accused in return for S$1,000 for each credit/debit card information obtained. Wong recruited Ong and Han to steal credit/debit card information from customers at their respective places of employment (without the knowledge of the employer or the cardholder). They were paid S$200 by Wong for each set of card information obtained. Ong obtained about 20 sets of card information from her customers at Pour House Bar, while Han obtained about 10 sets from her customers at Eighteen Bali pub and Atlas Medical Pte Ltd for the scheme’s use.

20     Top-ups to the YouTrip accounts: The Accused would then use the stolen card details to perform the unauthorised top-ups, to a maximum sum of S$3,000 per YouTrip account.

21     For some of the top-ups, the top-ups would be unsuccessful if (i) the transaction amount exceeded the daily transaction limit for the credit card (or if the debit card had insufficient funds), or (ii) the payment system for that card had a separate OTP or authentication requirement. These unsuccessful top-ups formed the subject of the TIC charges under s 3(1) r/w s 10(1) r/w s 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”) r/w s 116 of the Penal Code (Cap 224, 2008 Rev Ed).

22     Withdrawal of cash from ATMs in Malaysia: The scheme members would then withdraw the stored value in the YouTrip accounts in cash using the YouTrip cards at ATMs in Malaysia. The Accused would request his runners to withdraw the cash on his behalf, while he waited in the vicinity of the ATMs. The cash withdrawn would then be split amongst the scheme members.

23     In total, the scheme obtained at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders.

24     The successful top-ups performed by the scheme amounted to the sum of S$128,171.46, of which the sum of S$6,039.63 was successfully recovered by the Police during investigations. On the 12 proceeded charges, the total amount involved was S$55,261.96.

25     The total loss sustained by the victim company was S$122,131.83. The Accused received a profit of at least RM100,000. He has not made any restitution.

26     Wong was first investigated by the Police on 31 January 2019. When the Accused found out about the investigations, he disposed of his iPad in Johor, Malaysia. This was because the iPad contained evidence of the offences, being the Accused’s record of the debit/credit card top-ups and cash withdrawals made on the YouTrip accounts. The iPad was not recovered during investigations.

Driving-related offences: Facts relating to DAC-924048-2020 (92nd charge)

27     At the time of the accident, the Accused was the driver of the motor car JPC888 (the “Car”). The Car was registered outside Singapore. The Accused purchased the Car from a “black market seller” in Johor Bahru, Malaysia in cash sometime between December 2018 and January 2019, without any registration documents.

28     On 22 April 2019, at about 5 pm, the Accused was driving the Car straight along Yishun Avenue 6, Singapore. Without reasonable consideration for other road users, the Accused failed to exercise care when making a lane change to the right, which resulted in a collision with the motor car driven by the victim, Xu Hanting. No injuries were reported.

29     After the accident, the Accused did not stop to exchange particulars with the victim, nor did he file an accident report within 24 hours of the accident.

30     The Accused did not possess any valid Singapore Class 3 driving licence. The Accused knew that he did not have a valid licence, and that it was an offence to drive in Singapore without one. Prior to the accident, around 2.50 pm, he had driven the car from his place of residence in Bukit Batok to a building in Yishun Avenue 6 to meet a friend. The accident occurred shortly after he left the building’s car park around 5.00 pm.

Driving-related offences: Facts relating to MAC-907015-2020 AND DAC-924054-2020 (88TH and 98TH charges)

31     On 28 June 2019, at or about 3.46 am, the Accused was driving the Car straight along CTE (AYE), Singapore. At the 8.5 km mark of the said expressway, without reasonable consideration for other road users, the Accused failed to exercise care when making a lane change to the left, which resulted in a collision with the motor car driven by the victim, Liang Zhen Ning, Justin. No injuries were reported.

32     Sometime between 4 am and 4.32 am, Sergeant(2) Mohamed Nurhaikal Bin Mohamed Shariff (“Sgt Haikal”), a police officer in the employ of the Traffic Police Department of the Singapore Police Force, arrived at the accident location. He approached the Accused and asked that he furnish his particulars. The Accused was unable to produce any identification. Instead, he claimed that he was one “Loh Hong Jun” on a Malaysian social visit pass. He also claimed that his Malaysian passport was with a friend. The Accused lied to Sgt Haikal that he was “Loh Hong Jun”, which information he knew to be false. He did so knowing that it would be likely that Sgt Haikal would omit to investigate the Accused for offences in relation to driving the Car, which Sgt Haikal ought not to omit if the true state of facts respecting which such information was given were known to him.

33     Sgt Haikal conducted numerous searches on various Police systems but was unable to establish the Accused’s identity. After a search of the Accused’s Car, the Police found forged documents bearing logos from the Land Transport Authority and the Ministry of Defence stating that the Car was a “government registered vehicle” and that the Accused had a “valid Class 3A driving licence”. The Accused finally admitted to providing false particulars when a photograph of his genuine NRIC was found in his mobile phone.

34     The Accused did not possess any valid Singapore Class 3 driving licence. Prior to the accident, he had left his place of residence in Bukit Batok, and headed to Bedok for supper until 1 am. Thereafter, he drove to Hougang with the intention to pick up a Grab Hitch passenger but was not successful. The accident occurred when he was on the way home.

Driving-related offences: Facts relating to MAC-907574-2020, MSC-903130-2020 AND MSC-903134-2020 (90TH, 104TH and 108TH charges)

35     At the time of the accident, the Accused was the driver of the motor car bearing licence plate ‘QS996K’ (the “Second Car”).

36     On 25 August 2019, at about 4.45 pm, the Accused was driving the Second Car along Bukit Batok West Avenue 5, Singapore when he was stopped by Traffic Police officers for a routine check. At about 5 pm, Staff Sergeant Fathur Rahman Bin Rohani (“Sgt Fathur”), a police officer in the employ of the Traffic Police Department of the Singapore Police Force, approached the Accused and asked that he furnish his particulars. The Accused produced a photograph of a forged Malaysian identification card and claimed to be one “Chng Soon Hao”. He did so knowing that it would be likely that Sgt Fathur would omit to investigate the Accused for offences in relation to driving the Second Car, which Sgt Fathur ought not to omit if the true state of facts respecting which such information was given were known to him.

37     Sgt Fathur conducted searches on various Police systems, but was unable to establish the Accused’s identity. Sgt Fathur only realised that the Accused was lying when Sgt Haikal arrived at the scene, and recognised the Accused from a prior investigation. The Accused then admitted to providing the false particulars.

38     The Accused did not possess any valid Singapore Class 3 driving licence. The Accused had driven the Second Car daily for less than a month before 25 August 2019.

39     Further investigations revealed that the Second Car was previously registered in Singapore and assigned with the registration number ‘SLG8100M’. The vehicle was deregistered on 4 September 2018 and declared to be exported to Malaysia on 14 September 2018. The Accused bought the Second Car on the “black market” in Malaysia from an unknown subject “James”, and arranged for the Second Car to be brought into Singapore. The Accused then paid James a further sum of S$5,000 to obtain falsified road tax documents for a new licence plate, QS996K. The Accused then went to an unknown car workshop in Ubi, Singapore to affix a false licence plate ‘QS996K’ to the Second Car.

Driving-related offences: Facts relating to MSC-900648-2023 and MSC-900649-2023 (119TH and 120TH charges)

40     On 5 March 2020, at about 9.20 pm, one Alden Gan Wei Hao, a 22-year-old male (“Gan”), was driving a motor car bearing licence plate ‘SS484V’ along Jalan Lam Sam, Singapore, when he was stopped by enforcement officers from the Land Transport Authority. During the checks, Gan was found to have been driving without a valid licence, the requisite insurance and road tax.

41     Further investigations revealed that the said car was in fact the Second Car, and previously registered in Singapore and assigned with the registration number ‘SLG8100M’. The Second Car was not impounded by the Traffic Police during investigations into the offences on 25 August 2019. After the Accused regained possession of the Second Car, sometime in January 2020, he went to an unknown car workshop in Singapore to affix a second false licence plate ‘SS484V’.

42     The Accused drove the Second Car daily in Singapore from January to March 2020.

43     The Accused was friends with Gan, and shared the use of the Second Car between January to March 2020 with Gan. Gan would use the Second Car to ferry passengers, and would give the Accused S$20 to S$30 per day in return for fuel costs. The Accused would have the use of the Second Car for the rest of the day, after Gan’s shift had ended.

Cheating offence

Facts relating to DAC-901979-2023 (112TH charge)

44     On 6 July 2021, at about 2.47 pm, Loo Bee Theng, a fraud specialist employed by Singapore Telecommunications Limited (“Singtel”), lodged a police report stating that Singtel had been scammed by one of their customers.

45     Between February 2017 to March 2019, the Accused signed up for five mobile lines with Singtel. From June 2020 onwards, the Accused was responsible for paying the bills for all five mobile lines, as well as a Singtel Fibre Home Bundle and a Singtel TV subscription.

46     However, from June 2020 onwards, the Accused knew that he did not have the means nor the intention to make payment to Singtel for the mobile lines and other services. As such, he decided to issue cheques from his personal CIMB account or Standard Chartered Bank (“SCB”) account, and represent to Singtel that the cheques would be honoured to pay for the mobile lines and other services, when he knew in fact that he did not intend to honour such cheques. He knew that the cheques would not be honoured either because:

a)     His bank accounts had insufficient funds at the time he submitted the cheques;

b)     He would deliberately insert a different signature on the cheque, so that the banks processing the cheque would reject the cheque because the signature was irregular; or

c)     He submitted the CIMB cheques after his CIMB account had been closed on 5 March 2021.

47     As a result of the Accused’s deception, Singtel was dishonestly induced not to discontinue the mobile phone lines because of the unpaid outstanding bills, which Singtel would not omit to do if it were not so deceived, and which omission caused Singtel harm in property, being the value of the outstanding bills.

48     In respect of the proceeded charge, between 26 June 2020 and 17 June 2021, on 20 separate occasions, the Accused submitted 20 cheques to Singtel totalling S$95,900 which were dishonoured.

49     Considering the value of the three SCB cheques submitted, The Accused submitted 23 dishonoured cheques to Singtel amounting to a total value of S$112,380.

50     As of 8 August 2021, the total outstanding amount owed to Singtel for the five mobile phone lines and other services was S$17,521.98, including $4,824.33 in fees for the early termination of the five mobile phone lines. No restitution had been made.

Driving-related offences: Facts relating to DAC-902125-2023 and DAC-902129-2023 (114TH and 118TH charges)

51     At the time of the accident, the Accused was the driver of the motor car SLD204R (the “Third Car”).

52     On 4 June 2022, at or about 12.32 pm, The Accused was driving the Third Car straight along Bukit Batok Street 23 towards Bukit Batok Street 25. A motorcyclist, Balachandar a/l Verilek Pillay (“Balachandar”), was travelling in the opposite direction along the said Bukit Batok Street 23. He failed to keep a proper lookout when he executed a right turn into the VICOM Inspection Centre located at 511 Bukit Batok Street 23. The left side of his motorcycle collided into the right side of the Accused’s Third Car, who had the right of way. As a result of the collision, Balachandar fell onto the road and suffered pain of the right ankle, left lower limb, right chest and right shoulder.

53     After the accident, the Accused did not stop and continued to travel straight along Bukit Batok Street 23 towards Bukit Batok Street 25. The Accused saw that Balachandar “was still able to move” and decided not to render any assistance. He knew that he was wanted by the authorities and that if he had stopped, he would be investigated for further traffic offences.

54     A passer-by witnessed the incident, stopped to assist Balachandar and lodged a police report. Balachandar was conveyed by ambulance to Ng Teng Fong General Hospital. He was found to have sustained multiple fractures of the collarbone, neck, toes and ankle. He was given 23 days of hospitalisation leave.

55     The Accused did not possess any valid Singapore Class 3 driving licence. Between February 2022 and 4 June 2022, the Accused worked as a delivery driver and drove the Third Car to perform his delivery services.

56     For his involvement in the accident, Balachandar was administered with a stern warning for careless driving without reasonable consideration under s 65(1)(b) RTA 1961 on 7 February 2023.

Enlistment Act Offences

Facts relating to DAC-901949-2023 and DAC-901950-2023 (110TH and 111TH charges)

57     The Accused was born on 28 January 1995 and is a Singapore Citizen by birth. He was subject to the requirements of the Enlistment Act (Cap 93, 2001 Rev Ed). The Accused registered for National Service (“NS”) on 10 June 2012. He was medically graded as Physical Employment Standards (“PES”) E9 on 26 June 2020. He enlisted for full-time NS in the Army on 30 September 2022.

58     Prior to his enlistment, he was granted a deferment from November 2012 to March 2014 to complete his local studies. Thereafter, he attended one Full Medical Examination on 17 February 2014, and was given PES D pending further medical reviews.

59     The Accused failed to report for further medical reviews when Further Reporting Orders (“FROs”) were issued to him.

60     The Accused failed to comply with FROs to report for medical review on the following occasions between 25 June 2018 to 15 June 2020, for a cumulative period of 1 year, 2 months and 17 days:

61     Thereafter, from January 2021 to February 2022, the Accused was served with 52 Enlistment Notices (“EN”). He did not report for enlistment as he produced medical certificates which diagnosed him with acute respiratory symptoms.

62     On 23 February 2022, a further EN was served to him by hand at his registered address. The EN required the Accused to report to Kranji Camp III on 25 February 2022 at 10.30 am for enlistment into full-time NS. Having acknowledged the EN, the Accused failed to report for his enlistment.

63     On 25 February 2022, a house visit was conducted at the Accused’s address, but he was not at home. Multiple calls were made to contact him but to no avail. On 26 February 2022, a police gazette was raised against the Accused. On 28 September 2022, the Accused was arrested by the Police.

64     The Accused was aware that he was required to report for his enlistment, but chose not to do so as he knew that he was wanted by the authorities for committing multiple offences.

65     The Accused had failed to report for enlistment into full-time NS from 25 February 2022 to 27 September 2022, for a period of 7 months and 3 days.

Antecedents

66     The Accused was traced for numerous moneylending offences in 2015 for which he was sentenced to Reformative Training.

The Parties’ Position on Sentence

67     A table summarising the Prosecution’s and Defence’s submission on sentence is set out as follows:

Offence

Prosecution’s submission

Defence’s submission

YouTrip fraudulent scheme

12 charges under s 3(1) r/w ss 10(1) and 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”)

(5th, 8th, 10th , 11th, 13th, 16th, 19th, 20th 21st, 28th, 38th and 45th charges)

Five to seven months’ imprisonment per charge

(Five sentences to run

consecutively)

Four to five months’ imprisonment per charge

(Four sentences to run

consecutively)

Subtotal:

25 to 35 months’ imprisonment

16 to 20 months’ imprisonment

Driving-related offences

Prosecution’s submission

Defence’s submission

Three charges under s 35(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) (pre-2019 amendment)

(92nd, 98th and 104th charges)

One week’s imprisonment per charge

(concurrent)

One week’s imprisonment per charge

(concurrent)

Two charges under s 182 of the Penal Code (Cap 224, 2008 Rev Ed)

(88th and 90th charges)

Two to four weeks’ imprisonment per charge

(One sentence to run

consecutively)

One to two weeks’ imprisonment per charge

(One sentence to run

consecutively)

Two charges under s 35(1) of the RTA or Road Traffic Act 1961 (“RTA 1961”) (post-2019 amendment)

(114th and 120th charges)

Three to five months’ imprisonment per charge and five years’ DQAC

(consecutive)

Five weeks’ imprisonment and five years’ DQAC for the 114th Charge and four weeks’ imprisonment and five years’ DQAC for the 120th Charge

(consecutive)

Two charges under s 129(2)(d) of the RTA

(108th and 119th charges)

Three to four months’ imprisonment per charge

(One sentence to run

consecutively)

Four weeks’ imprisonment per charge

(One sentence to run

consecutively)

One charge under s 84(3) r/w s 84(7) of the RTA

(118th charge)

Two to four weeks’ imprisonment

(consecutive)

Two weeks’ imprisonment

(consecutive)

Subtotal:

Nine to 14 months’ and

Four to eight weeks’ imprisonment and 5 years DQAC

17 to 18 weeks’ imprisonment and 5 years’ DQAC

Cheating offence

Prosecution’s submission

Defence’s submission

One charge under s 417 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) r/w s 124(4) and p/u s 124(8) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)

(112th charge)

10 – 12 months’ imprisonment

(consecutive)

Nine months’ imprisonment

(consecutive)

Subtotal:

10 – 12 months’ imprisonment

(consecutive)

9 months’ imprisonment

(consecutive)

Enlistment Act offences

Prosecution’s submission

Defence’s submission

One charge under s 9 of the Enlistment Act (Cap 93, 2001 Rev Ed) (“Enlistment Act”)

(110th charge)

Five to six weeks’ imprisonment

(consecutive)

$2,000 fine

One charge under s 10(2) of the Enlistment Act

(111th charge)

Two to three weeks’ imprisonment

(consecutive)

$300 fine

Subtotal:

Seven to nine weeks’ imprisonment

$2,300 fine

Global Sentence

44 to 61 months’ and 11 to 17 weeks’

imprisonment

and 5 years’

DQAC

25 to 29 months’ and 17 to 18 weeks’

imprisonment,

$2,300 fine and

five years’ DQAC



The Prosecution’s submission on sentence

68     The Prosecution sought a global sentence of 44 to 61 months’ and 11 to 17 weeks’ imprisonment and five years’ DQAC

69     The Prosecution submitted that the Accused was a “recalcitrant offender” who has demonstrated “a blatant disregard for the authorities through his criminal conduct.” The Prosecution submitted that over a four-year period between 18 October 2018 and 27 September 2022, the Accused had committed 124 offences on 9 separate occasions.

70     Having first been arrested and investigated for his role in masterminding the YouTrip fraudulent scheme in February 2019, he committed several fresh offences while on bail. Subsequently, he absconded from court and became uncontactable to the authorities in September 2021, and continued to reoffend. Many of these offences were of a similar nature and involved deception employed on public officers. Taken together, they reflected a patent lack of remorse throughout the proceedings, and a worrying proclivity towards criminal behaviour.

YouTrip fraudulent scheme

71     The Prosecution submitted that the Accused’s offence caused significant harm totalling S$122,131.83.

72     The scale of the syndicate was relatively large and was carried out for a period of three months from 28 October 2018 to 28 January 2019 before it was uncovered by the authorities.

73     The scheme involved six scheme members, who obtained a total of 20 YouTrip accounts and at least 42 sets of credit or debit card information from 40 cardholders.

74     There was a transnational element to the scheme as the cash sums were withdrawn and dissipated in Malaysia. This resulted in most of the criminal proceeds not being recovered during investigations.

75     The Accused culpability was high for the following reasons:

(a)     He played a pivotal role in the fraudulent scheme. He was intimately involved as the directing mind at every stage of the scheme.

(b)     He conceived of the scheme, and either personally recruited or instructed his runners to obtain YouTrip accounts for the scheme’s use.

(c)     He instructed his runners to misappropriate credit or debit card information from unsuspecting customers.

(d)     He personally performed the unauthorised top-ups in the YouTrip accounts.

(e)     He oversaw the withdrawal of the cash sums from ATMs in Malaysia and dissipated the criminal proceeds to the other scheme members.

(f)     The Accused acted with a high degree of premeditation and planning. He realised and exploited a security flaw in the YouTrip payment service.

(g)     To successfully carry out and sustain the fraud would also entail a degree of coordination between the Accused and the other scheme members, nominees and runners. To that end, he maintained a record of the various top-ups and transactions in his iPad.

(h)     There was also a well thought out profit-sharing arrangement to entice the various scheme members and nominees to join his scheme. The Accused offered commission of between S$200 to S$1,000 for each YouTrip account obtained, and S$200 for each set of credit/debit card information obtained.

(i)     The offences were committed for profit. The Accused earned a profit of at least RM100,000. No restitution has been made and his profits have not been disgorged.

Driving-related offences

76     For the pre-2019 RTA amendment s 35(1) RTA charges (the 92nd, 98th and 104th charges), the Prosecution sought one week’s imprisonment for each charge.

77     For the post-2019 RTA amendment s 35(1) RTA 1961 charges(the 114th and 120th charges), the Prosecution sought a sentence of three to five month’s imprisonment and five years DQAC on the basis that there was a higher prescribed punishment post-2019 amendment, that the Accused drove for his own convenience for significant length of time and permitted his friend to drive for profit and the offences was committed on bail.

78     For the s 182 Penal Code offences, the Prosecution submitted for a sentence of between two to four weeks’ imprisonment. The Prosecution submitted that appreciable harm was caused as the Accused’s false information caused some waste of police resources, as separate screenings were conducted based on the false information and searches had to be conducted of his cars. The Accused’s culpability is also enhanced by his use or possession of forged documents.

79     For the false license plate charges, the Prosecution submitted that on the authority of Chong Jiajun Eugene v PP [2016] 1 SLR 365 [TAB 14] (“Eugene Chong”), the present case fell within Band 3 (aggravated offences where false licence plate used on stolen cars or to facilitate serious offences like drug trafficking, robbery, immigration offences or customs offences) with an imprisonment term of three months’ imprisonment and upwards.

80     The Prosecution sought a sentence of between three to four months’ imprisonment per charge would be appropriate.

81     For the charge of failing to render assistance, the Prosecution sought a sentence of two to four weeks’ imprisonment, after surveying various case precedents. The Prosecution submitted that the custodial threshold had been crossed as the Accused committed the offence in order to evade apprehension for serious driving offences and knew that he was wanted by the authorities for his previous offences; and Balachandar had sustained serious injuries (multiple fractures); it was wholly fortuitous that there was a passer-by who rendered timely assistance, which enabled Balachandar to receive the necessary medical attention.

Cheating charge

82     The Prosecution sought a sentence of ten to 12 months’ imprisonment on account of the following:

(a)     The amount involved in the charges is high. On the proceeded charge, the Accused submitted 20 cheques amounting to $95,900 and including the TIC-ed charge, the Accused submitted 23 cheques amounting to $112,380.

(b)     The harm caused was significant as the outstanding loss to Singtel remains at $17,521.98 and no restitution had been made.

(c)     The Accused acted with some premeditation. He prepared numerous cheques and knew how to vary his signature so that the banks would reject the submitted cheques.

(d)     The offence was an amalgamated charge punishable with twice the maximum prescribed punishment under s 124(8) CPC.

Enlistment Act offences

83     The Prosecution submitted that on the authority of PP v Sakthikanesh s/o Chidambaram [2017] 5 SLR 707 (“Sakthikanesh”), the custodial threshold had not been crossed as the Accused’s cumulative period of default was less than two years, or about one year nine months and 20 days The Prosecution submitted that this would warrant a high fine totalling at least $10,000.

84     Nonetheless, the Prosecution sought a custodial sentence as the Accused was likely to be unable to pay the fine and noted that in Tan Yan Qi Chelsea v PP [2022] SGHC 275 the High Court held that custodial sentences may be appropriate for impecunious offenders who could not afford the fines.

85     The Prosecution sought an aggregate custodial sentence of seven to nine weeks’ imprisonment for the Enlistment Act offences, with individual sentences as follows:

a)     110th charge (s 9 Enlistment Act): five to six weeks’ (consecutive); and

b)     111th charge (s 10(2) Enlistment Act): two to three weeks’ (consecutive).

The Defence’s submission on sentence

86     The Defence sought a global sentence of 25 to 29 months’ and 17 to 18 weeks’ imprisonment, $2,300 fine and five years’ DQAC.

YouTrip fraudulent scheme

87     For the YouTrip fraudulent scheme the Defence sought four to five months’ imprisonment per charge. While the Defence did not dispute that the Accused’s culpability was higher than the other co-accused persons as the Accused was the individual who informed the co-accused of his plan to perform unauthorised top-ups to YouTrip accounts and was responsible for a larger sum of top-ups, the Defence submitted that an uplift of the individual sentences to four to five months’ imprisonment per charge would adequately reflect the Accused’s level of involvement in the scheme compared to the co-accused persons.

88     The Defence submitted that the Accused’s culpability was only slightly higher than co-accused Wong for the following reasons:

a)     Wong provided the Accused with his own YouTrip account;

b)     Wong was actively involved in obtaining YouTrip accounts for the scheme’s use by persuading other individuals to open YouTrip accounts. Indeed, Mr Wong personally obtained 12 further YouTrip accounts while the Accused did not actively obtain any YouTrip accounts;

c)     Wong actively recruited three further scheme members;

d)     Wong procured 30 sets of credit card information; and

e)     Wong did not make any restitution.

89     While the Accused conceived of the scheme, Wong also played an active role in furthering the scheme. Wong was not a mere foot soldier. While the Accused was personally responsible for recruiting two scheme members, Wong was personally responsible for recruiting three scheme members and expanding the group. Further, Wong obtained a greater number of YouTrip accounts and sets of credit card information than the Accused.

90     Accordingly, it could be said that the Accused’s level of harm and culpability was higher than Wong, and a slight uplift from the three to four months’ imprisonment per charge imposed on Wong to a sentence of four to five months’ imprisonment per charge would be appropriate.

91     The Defence submitted that there was no transnational element in the present case even though monies were withdrawn from ATMs in Malaysia. The monies that were misappropriated came from bank accounts in Singapore, the instructions for the transfers and withdrawals were made in Singapore, the scheme was conceived and carried out in Singapore and the victim company was also a Singaporean company.

92     The Defence submitted that if the Court were to run the sentences for five charges consecutively, this would be substantially above the normal level of sentences for offences under s 3(1) CMA.

Driving-related offences

93     For the pre-2019 RTA amendment s 35(1) RTA charges the Defence was aligned with the Prosecution in seeking one week’s imprisonment for each charge.

94     For the post-2019 RTA amendment s 35(1) RTA 1961 charges, the Defence sought sentences of four- and five-weeks’ imprisonment for the 120th and 114th charges respectively. The Defence noted that in Seah Ming Yang Daryle v Public Prosecutor [2024] SGHC 152 (“Seah Ming Yang Daryle”) (at [73] to [83]), the appropriate benchmark sentence for the archetypal case (i.e., a case which involved a first-time offender, who was an unqualified driver who pleaded guilty, and who did not cause an accident) should be set at two weeks’ imprisonment.

95     The Defence accordingly submitted that an uplift from the two weeks’ imprisonment to not more than five week’s imprisonment for the 114th Charge and four (4) weeks’ imprisonment for the 120th Charge with five years’ DQAC for each charge would be appropriate in the present case.

96     For the s 182 Penal Code charges, the Defence submitted that appropriate sentence for the 88th and 90th Charges should be one (1) week’s imprisonment and two weeks’ imprisonment respectively as limited public resources were wasted as a result of the false information provided by the Accused as the police found a photograph of the Accused’s NRIC (identification card) in his mobile phone (88th charge) and the Accused’s identity was discovered on the same day when a different police officer arrived at the scene (90th charge).

97     For the false license plate charges, the Defence submitted that the appropriate sentence for the 108th and 119th Charges should be four weeks’ imprisonment per charge, bearing in mind the sentencing guidelines in Chong Jiajun Eugene v Public Prosecutor [2015] SGHC 285.

98     For the failure to render assistance, the Defence submitted that the appropriate sentence for the 118th Charge should be two weeks’ imprisonment.

Cheating charge

99     The Defence submitted that the appropriate sentence for the 112th Charge should be nine months’ imprisonment.

100    The Defence referred to Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756 (“Idya”) where Menon CJ stated (at [48]) that the primary yardstick for cheating offences would often be the value of the property involved and at [47] that for cheating offences that resulted in losses of between $1,000 and $15,000, custodial sentences for terms of between four and eight months’ imprisonment have been imposed in prior cases. As the loss caused to Singtel was $17,521.98, a slight upward adjustment from a sentence of eight months’ imprisonment would be appropriate.

Enlistment Act offences

101    For the 110th charge the Defence submitted for a fine of $2,000 Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] 5 SLR 707 (“Sakthikanesh”), the court held at [57] that the length of the period of default would, as a general rule, be the key consideration in the determination of the appropriate sentence. The court also stated at [60] that as a general observation, cases involving short periods of default of two years or less would generally not attract a custodial sentence.

102    As the Accused had failed to report for medical reviews for a cumulative period of 1 year, 2 months and 17 days, which was significantly shorter than the period of two (2) years as stated in Sakthikanesh, the custodial threshold had not been crossed.

103    The Defence referred to Mohammed Ibrahim s/o Hamzah v Public Prosecutor [2015] 1 SLR 1081 (“Ibrahim”), where the court held at [30] that while there were relatively few cases under s 3(1) EA, an analogy could be drawn with cases concerning offences under s 33 EA which prescribed the same punishment as s 4(2) EA for a s 3(1) EA offence. The court held accordingly at [31] submitted that fines of $600 to $2,000 were imposed in respect of periods of default ranging from about one year and seven months to slightly over two years. As such, the Defence submitted that a fine of $2,000 would be appropriate for the 110th charge and a fine of $300 would be appropriate for the 111th charge.

The Court’s decision on sentence

The sentences for the YouTrip fraudulent scheme

104    It would be helpful to set out a pictorial depiction of the YouTrip fraudulent scheme as follows[note: 1]:

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105    I also set out the particulars of one of the CMA charges (the 5th charge) which was representative of the YouTrip fraudulent scheme:

…are charged that you, between 28/10/2018 and 9/1/2019, in Singapore, did engage in a conspiracy with Loh Hong Jun, Wong Chen Yui, Ong Bee Lay, Han Shu Zhen, Bai Siyan and others, to commit unauthorised access to computer material, namely, knowingly causing the YouTrip mobile application to access YouTrip data held in the Amazon Cloud server in Singapore without authority, and in pursuance of that conspiracy and in order to do that thing, an act did take place, to wit, you used the credit card details of [redacted] belonging to Chang Sien Kheng to perform unauthorised funds transfers amounting to S$5405.42 to YouTrip card [redacted], which acts were committed in consequence of your abetment, and you have thereby committed an offence punishable under section 3(1) read with sections 10(1) and 11A of the Computer Misuse Act, Chapter 50A.

106    The Accused was the mastermind of the scheme. As could be seen from the pictorial depiction, the Accused sat at the apex of the multi-layered scheme and instructed various persons to open YouTrip accounts who in turned instructed more persons to open more YouTrip accounts. Wong and Loh in turn persuaded 16 other individuals to open YouTrip accounts. The Accused would then use the stolen card details to perform the unauthorised top-ups, to a maximum sum of $3,000 per YouTrip account. The scheme members would then withdraw the stored value in the YouTrip accounts in cash using the YouTrip cards at ATMs in Malaysia. The Accused would request his runners to withdraw the cash on his behalf, while he waited in the vicinity of the ATMs. The cash withdrawn would then be split amongst the scheme members.

107    In total, the scheme obtained at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders.

108    The successful top-ups performed by the scheme amounted to $128,171.46, of which $6,039.63 was successfully recovered by the Police during investigations. The total loss sustained by the victim company was $122,131.83. The Accused received a profit of at least RM100,000. He had not made any restitution.

109    Before the Accused’s plead guilty mention, five other co-accused persons of the scheme had already pleaded guilty and were sentenced as follows:

Scheme member

Charges

Sentence

Wong Chen Yui (“Wong”)

Provided own account; obtained 12 further accounts; recruited three scheme members; helped procure 30 sets of credit card information and withdrew cash from Malaysia

Amount involved: $29,999.08 (proceeded), $56,451.49 (total)

43 CMA charges

(Proceeded on ten charges, TIC 33 charges)

Three to four months’ imprisonment per charge

Global sentence:

Eight months and 11 weeks’ imprisonment

(taking into account one week remand period)

Loh Hong Jun (“Loh”)

Provided own account; obtained one further account; withdrew cash from Malaysia

Amount involved: $30,461.53 (proceeded), $44,734.19 (total)

28 CMA charges

(Proceeded on six charges, TIC

22 charges)

Two to three months’ imprisonment per charge

Global sentence

Eight months’ imprisonment

Ong Bee Lay (“Ong”)

Obtained four accounts and 20 sets of credit card information

Amount involved: $16,670.84 (proceeded), $28,203.06 (total)

20 CMA charges

(Proceeded on six charges, TIC 14 charges)

Ten weeks’ imprisonment per charge

Global sentence:

29 weeks’ imprisonment

(taking into account one week remand period)

Han Shuzhen (“Han”)

Provided own account; obtained three further accounts and 10 sets of credit card information

Amount involved: $9,001.99 (proceeded), $16,773.99 (total)

Ten CMA charges

(Proceeded on three charges, TIC seven charges)

Ten weeks’ imprisonment per charge

Global sentence

20 weeks’ imprisonment

Bai Siyan (“Bai”)

Provided own account; obtained three further accounts; instructed one nominee to lie to CAD

Amount involved: $8,999 (proceeded),

$16,893.96 (total)

16 CMA charges

(Proceeded on three charges TIC 13 charges)

Five weeks’ imprisonment per charge

One 204A PC charge

Two weeks’ imprisonment

Global sentence

12 weeks’ imprisonment



110    The parity principle as stated in Public Prosecutor v Ramlee and another action [1998] 3 SLR(R) 95 (“Ramlee”) at [7] dictated that where there were multiple offenders, the sentences passed on them should be the same unless there was a relevant difference in their responsibility for the offence:

Where two or more offenders are to be sentenced for participation in the same offence, the sentences passed on them should be the same, unless there is a relevant difference in their responsibility for the offence or their personal circumstances … An offender who has received a sentence that is significantly more severe than has been imposed on his accomplice, and there being no reason for the differentiation, is a ground of appeal if the disparity is serious. …

[emphasis added]

111    This was one such case where there were different levels of responsibilities among the co-accused persons in the scheme resulting in the need for differentiated sentencing. This was already reflected in the different sentences passed on the co-accused persons where the number of charges preferred and proceed against them were not the same.

112    Among the co-accused persons already sentenced, Wong had the greater degree of involvement. His sentence was three to four month’s imprisonment per charge and a global sentence of eight months and 11 weeks’ imprisonment, taking into account the one-week remand period, If the one-week remand period was not accounted for, the sentence would be eight months and 12 weeks’ imprisonment, which would be close to 11 months’ imprisonment.

113    The Defence submitted that Wong was not a mere foot soldier and while the Accused was personally responsible for recruiting two scheme members, Wong was personally responsible for recruiting three scheme members and expanding the group. Further, Mr Wong obtained a greater number of YouTrip accounts and sets of credit card information than the Accused.

114    The fact of the matter was that the Accused stood at the apex of the multi-layered scheme as the mastermind.

115    The Accused was responsible for the top ups amounting to $128,171 which was more than twice that of Wong ($56,451) and had around twice (87) as many charges (43) as Wong. As such, I was of the view that a significant uplift from Wong’s individual sentences were in order. Further, I rejected the Defence’s submissions that there was no transnational element as the cash sums were withdrawn and dissipated in Malaysia and this resulted in most of the criminal proceeds not being recovered during investigations.

116    I also did not find the Defence’s comparison of the present case to Public Prosecutor v Casper Ang (Hong Weiliang) [2022] SGDC 206 (“Casper Ang”) as helpful. Casper Ang involved sums of $68,065, $100,001 and $50,000, where the total sum involved was $356,600.80 and the court sentenced the offender to 20 months’ imprisonment per charge with two to run consecutively leading to a 40 months’ imprisonment. In the present case, the individual sentences imposed were much lower than that in Casper Ang.

117    The Defence referred to Public Prosecutor v Kong Wei Keong Marcus [2022] SGMC 48 (“Marcus Kong”), the offender was charged with 21 charges under s 3(1) CMA for the unauthorised transfer of funds from the bank account of the victim, who he was in a romantic relationship with at the time. The transfers involved sums ranging from $5 to $5,000. The court in Marcus Kong had proposed tariffs in sentencing (at [288]):

a)     For offences involving up to $500: one (1) to two (2) weeks’ imprisonment;

b)     For offences involving between $700 to $1,000: one (1) month’s imprisonment; and

c)     For offences involving between $2,000 to $3,000: three (3) month’s imprisonment.

118    The Defence also referred to the sentence imposed in Public Prosecutor v Leong Kiat Hoe [2021] SGDC 133 (“Leong Kiat Hoe”), where the offender was sentenced to five months’ imprisonment for a charge under s 3(1) CMA involving a sum of $8,500.

119    I did not find these two cases helpful. Quite apart from the fact that any tariffs or benchmarks proposed by the District or Magistrate’s courts were not binding on me, cases of fraud under the CMA can involve a myriad of factual scenarios depending on the level of culpability of the offender and thus cannot be pigeonholed into a standard tariff or benchmark based simply on the amounts involved. In my view, it would be more helpful to reference the sentences for the co-accused persons in this case and then calibrate accordingly based on the Accused’s level of harm and culpability.

120    That said, the Prosecution and Defence’s sentencing position were not that far apart in terms of individual sentences. The Prosecution sought five to seven months’ imprisonment per charge whereas the Defence sought four to five months’ imprisonment per charge. In this regard, the Defence was prepared to concede that the Accused’s level of harm was culpability was higher than Wong.

121    In the circumstances, for charges where the amount was less than $5,000, I imposed a sentence of five months’ imprisonment. For charges where the amount was $5,000 or more, I imposed a sentence of six months’ imprisonment.

122    As to how many of such sentences should run consecutively, this would be discussed at [151] to [172] when all the individual sentences have been determined.

Sentences for the driving-related offences

123    For the pre-2019 s 35 (1) RTA charges, the Prosecution and the Defence submitted for a sentence of one week’s imprisonment. I agreed that the custodial threshold had been crossed and I imposed a sentence of one week’s imprisonment each for the 92nd, 98th and 104th charges.

124    In respect of the post-2019 s 35 (1) RTA 1961 charges, as held in Seah Ming Yang Daryle the benchmark sentence for the archetypical case would be two week’s imprisonment and two year’s DQAC.

125    Both the Prosecution and Defence agreed that an uplift from the benchmark sentence of two weeks’ imprisonment in Seah Ming Yang Daryle was in order as there were aggravating factors which took this beyond the archetypical case. Specifically, I noted that the Accused had driven without a licence for three to four months, had caused a traffic accident (in the case of the 118th charge), permitted his friend Gan who was similarly unlicensed to use the car (in the case of the 120th charge) and had committed these offences while on bail. I did not consider the use of false license plates as an aggravating factor to justify an uplift as the Accused would be separately sentenced for this offence. All things considered, I did not agree with the Prosecution this warranted an uplift all the way to three to four months’ imprisonment. I accordingly sentenced him to six weeks’ imprisonment for each of 114th and 120th charges. This would already be a significant uplift from the two weeks’ imprisonment term archetypical case in Seah Ming Yang Daryle.

126    Turning to the length of the disqualification order, the Prosecution and Defence agreed on five years’ DQAC to be imposed for each of the 114th and 120th charges. In any event, I considered that a significant uplift from the benchmark of two years’ DQAC in Seah Ming Yang Daryle was in order. In this regard, I had considered the factors to be considered as to the length of disqualification as set out in Kwan Weiguang v Public Prosecutor [2022] 5 SLR 766, including the Accused’s prolonged period of driving without a license, permitting an unlicensed driver Gan to drive, that an accident was caused in one instance (the 114th charge) with relative serious injuries and his use of deception on police officers as to his true identity when stopped There were also numerous driving-related TIC charges which were taken into consideration including that for inconsiderate driving under s 65(b) RTA, using a vehicle without insurance coverage under s 3(1) MVA, failing to stop after an accident under s 84(1) RTA and failure to lodge a report within 24 hours under s 84(2) RTA and driving a vehicle registered outside Singapore under s 12(1)(a) RTA.

127    For the s 182 Penal Code charges, I agreed with the Prosecution and Defence that the custodial threshold had bene crossed after considering the degree of harm caused by the offence as per Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447 at [50] which would include wastage of public investigative resources.

128    I imposed a sentence of one week’s imprisonment for the 88th charge and two weeks’ imprisonment for the 90th charge. The higher sentence for the 90th charge reflected the fact that the more police sources were expended to uncover the Accused’s false statement where Sgt Fathur conducted searches on various Police systems, but was unable to establish the Accused’s identity and Sgt Fathur only realised that the Accused was lying when Sgt Haikal arrived at the scene, and recognised the Accused from a prior investigation. This could be contrasted with the 88th charge where the Accused eventually admitted to providing false particulars when a photograph of his genuine NRIC was found in his mobile phone.

129    For the charges of using false license plates under s 129(2)(d) RTA, in Eugene Chong, See JC (as he then was) held at [22]:

It would in fact be very likely that, in other cases, false number plates are affixed in order to facilitate the commission of other offences. I would emphasise that a custodial term is still warranted in such cases. Imprisonment of two weeks upwards should be expected even if they may be relatively minor offences such as evasion of ERP, and I would venture to suggest that a longer term in the range of four weeks would be appropriate where there is non-payment of road tax and/or insurance. There will also be aggravated offences for which more substantial sentences of imprisonment would be warranted, such as where false number plates are used on stolen cars or to facilitate the commission of more serious offences like drug trafficking, robbery, immigration or customs offences, to name just a few. In such cases, the intent to evade detection is manifestly clear and the starting point for the sentencing court would be to consider a sentence of three months’ imprisonment upwards.

[emphasis added]

130    See JC’s reference in Eugene Chong to aggravated offences for which the use of false licence plate to facilitate included serious offences like drug trafficking, robbery, immigration offences or customs offences. For such offences the starting point would be an imprisonment term of three months and upwards.

131    I was of the view that the Prosecution’s submission for a sentence of three to four months’ imprisonment was not warranted for the following reasons. The offences for which the false license plates were used by the Accused to facilitate (the use of a de-registered car and driving without a licence) were not as serious as those described in Eugene Chong which referred to drug trafficking, robbery, immigration offences or customs offences to attract the starting point of three months’ imprisonment. Further, the court in Eugene Chong described the starting point of three month’s imprisonment which had not factored in the offender’s plea of guilt.

132    After factoring in the Accused’s plea of guilt and considering the offences for which the false licensed plates were used to facilitate but noting that the offence was committed while the Accused was on court bail, I imposed a sentence of six weeks’ imprisonment each for the 108th and 119th charges.

133    For the charge of failing to render assistance under s 84(3) RTA, several sentencing precedents tendered by the parties showed that penalties ranged from fines to imprisonment sentences were imposed. This was undoubtedly because the factual scenarios for such an offence could vary widely.

134    That said, I agreed with the Prosecution that two important sentencing factors would be (a) the severity of the offender’s offence which he was attempting to evade liability for and (b) the seriousness of the other party’s injuries and with both parties that the custodial threshold had been crossed in the present case.

135    In this case, the Accused failed to render assistance as he was wanted by the authorities for driving related offences. Further, Balachandar had sustained serious injuries, namely multiple fractures of the collarbone, neck, toes and ankle and was given 23 days of hospitalisation leave.

136    It was indeed fortuitous that there was a passer-by who rendered timely assistance, which enabled Balachandar to receive the necessary medical attention at Ng Teng Fong General Hospital.

137    All thing considered I imposed a sentence of two weeks’ imprisonment for the 118th charge.

Sentence for the cheating offence

138    In Idya Menon CJ held at [47]:

In my judgment, a custodial sentence will generally be appropriate as long as the offence in question causes a victim to part with property that has more than negligible value. … The cases cited in Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) (“Sentencing Practice”) indicate that custodial sentences have been imposed where the s 417 offence in question was committed for financial gain.

[Emphasis added]

139    Menon CJ went to highlight the various sentencing factors to consider at [48]:

As observed in Sentencing Practice, there are numerous factors that must be taken into account in every case. The primary yardstick will often be the value of the property involved. However, where the offence entails the misuse of a financial instrument or facility which threatens the conduct of legitimate commerce, the need for general deterrence is likely to take centre stage: see PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando Payagala”) at [88] in relation to the misuse of credit cards. Other factors such as the number and vulnerability of victims and the level of premeditation and deception involved will also feature to varying degrees in different cases: see Sentencing Practice at pp 834 to 838.

[Emphasis added]

140    In calibrating the length of the custodial sentence, I found the following factors relevant:

a)     The amount involved in the proceed charges comprised 20 cheques amounting to $95,900. After taking into account the TIC charges, the Accused had submitted 23 cheques amounting to $112,380.

b)     The outstanding loss to Singtel was $17,521.98. No restitution had been made.

c)     The Accused acted with premeditation as he prepared numerous cheques and knew that he insufficient funds at the time he submitted the cheques. He would vary his signature to that the banks would reject the submitted cheques because of irregular signatures.

d)     The offence was an amalgamated charge punishable with twice the maximum prescribed punishment under s 124(8) CPC.

141    The Prosecution sought a sentence of ten to 12 months’ imprisonment and the Defence sought a sentence of nine months’ imprisonment.

142    In Idya, Menon CJ noted at [47] that the cases indicate that custodial sentences for terms of between four and eight months’ imprisonment have been imposed for cheating offences that resulted in losses of between $1,000 and $15,000.

143    While the offender in Idya was sentenced to three months’ imprisonment for the use of a dishonoured cheque for a sum of $10,509, full restitution was made unlike the present case and in Idya only one cheque was involved whereas the present case involved 23 dishonoured cheques. Further, the loss to Singtel was $17,521.98 which was slightly over the $15,000 mark as noted in Idya where sentences of up to eight months’ imprisonment were imposed for losses of between $1,000 and $15,000.

144    In the circumstances, I was of the view that a sentence of nine and a half month’s sentence would be appropriate. At the same time, I considered the fact that the Accused was remanded for investigations from 11 to 20 February 2019 and I accordingly made a downwards adjustment in sentence and rounded it down to nine months’ imprisonment for the 112th charge.

Sentences for the Enlistment Act offences

145    The Defence had relied on Ibrahim in submitted for fines of $2,000 and $300 for the 110th and 111th charge respectively. Ibrahim dealt with the issue whether a custodial sentence was appropriate where the period of default was less than two years. Further, it should be noted that Ibrahim was decided before Sakthikanesh, and it was Sakthikanesh which had set out the sentencing framework for Enlistment Act offences.

146    In Ibrahim, the offender, who was 20 years old, was charged under s 3(1) Enlistment Act for failure to comply with a notice to report for registration for National Service. The High Court noted at [42] that the offender had since registered for National Service and would be fulfilling his obligations. The High Court accordingly imposed a fine of $3,000 in lieu of the two months’ imprisonment imposed by the sentencing court. In my view, one of the key differences between Ibrahim and the present case was that the offender in Ibrahim was a youthful offender and had since registered for National Service and would be fulfilling his obligations.

147    In Sakthikanesh it was held at [48] that general deterrence was the key objective in the sentencing of individuals who defaulted on their obligations to serve NS. The High Court further held that at [87] that as a general rule, the length of the period of default would be the key consideration in the determination of the appropriate sentence for an NS defaulter, although all the circumstances surrounding the commission of the offence should also be taken into account. The High Court held at [89] that a custodial sentence was typically only imposed where a period of default exceeds two years and proceeded to set down the following sentencing benchmarks:

S/No

Length of Period of Default

Starting Point for Sentence (Imprisonment Term)

1

2 to 6 years

2 to 4 months

2

7 to 10 years

5 to 8 months

3

11 to 16 years

14 to 22 months

4

17 to 23 (or more) years

24 to 36 months



148    In the present case, the period for which the Accused had failed to report was one year, two months and 17 days for the 110th charge and seven months and three days for the 111th charge. While the cumulative period of the Accused failing to report did not cross the two-year mark so as to attract a custodial sentence, the combined period at one year, nine months and 20 days was close to two years. As such, the fine should be sufficiently high to act as a deterrent. In this regard, the Accused disregarded numerous further reporting orders and enlistment notices sent to him between 2018 and 2022. Further, he did not voluntarily surrender and was arrested after a police gazette was raised.

149    In the circumstances, I agreed with the Prosecution that a global fine of $10,000 for both charges was appropriate. I did not impose a custodial sentence as sought by the Prosecution based on the Accused’s inability to pay as the Accused’s father who was present in court, had confirmed that he was able to pay the fine on his behalf and made the first payment of $6,000.

150    I accordingly imposed a fine of $6,000 i/d three weeks’ imprisonment for the 110th charge and a fine of $4,000 i/d two weeks’ imprisonment for the 111th charge. The remaining fine of $4,000 was to be paid by 29 November 2024.

Consecutive sentences

151    In Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 Menon CJ explained when consecutive sentences should be imposed at [41]:

As a general rule, a multiple offender who has committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively.

152    Menon CJ further explained the rationale of consecutive sentences at [43]:

In many situations, concurrent sentences for unrelated offences would not adequately serve, and in fact may undermine, the sentencing considerations that underlie the individual sentences comprising the aggregate term. For one thing, the imposition of concurrent sentences for unrelated offences would afford an offender who has already committed an offence less or no real incentive to refrain from committing a further offence, in so far as such a sentencing position would result in the offender not having to bear any real consequence for the further offending. This creates a distorted incentive that detracts from the deterrent value of the individual sentences notionally imposed.

153    Section 307(1) CPC provided that where there were three or more distinct offences for which the Accused has been sentenced to imprisonment (as in the present case), at least two sentences of imprisonment were to be consecutive. Menon CJ explained the operation of s 307(1) CPC and consecutive sentences in Raveen Balakrishnan at [52]:

The general rule of consecutive sentences for unrelated offences does not contravene s 307(1) or render it otiose. The provision retains its relevance in that it operates regardless of whether the multiple offences are related or otherwise. Therefore, even if all or some of the offences are related, s 307(1) applies to require that at least two sentences should run consecutively. Indeed, in my judgment, s 307(1) of the CPC, the one transaction rule, and the general rule of consecutive sentences for unrelated offences should be regarded as complementary principles that collectively help a court decide how sentences should be ordered to run in relation to a multiple offender.

154    On what amounted to an “unrelated offence”, Menon CJ observed at [69] as follows:

...to say that two offences are “unrelated” means that they are not “part of a single transaction”; conversely, to describe them as “part of a single transaction” means they are not “unrelated”. The two inquiries are two sides of the same coin.

155    In Mohammed Shouffee bin Adam v PP [2014] SGHC 34 Menon CJ observed at [30] that “the better articulation of the rationale for the rule was found in the principle that consecutive sentences are not appropriate if the various offences involve a “single invasion of the same legally protected interest” and explained further at [31] that “the real basis of the one-transaction rule is unity of the violated interest that underlies the various offences.”

156    Menon CJ highlighted that there were exceptions to the general rule of consecutive sentences for unrelated offences. For our purposes, the relevant exceptions were first, the totality principle and second, that the general rule of consecutive offences was not mandatory but if a court consciously chose not to run the sentences consecutively it needed to explain its reasons.

157    One of the key areas of contention between the Prosecution and Defence was how many sentences relating to the YouTrip fraudulent scheme should run consecutively. The Prosecution submitted for five such sentences to run consecutively while the Defence submitted for four such sentences to run consecutively.

158    In the present case the YouTrip fraudulent scheme concerned at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders. On a totality basis, it would not have been possible to run all sentences for the 12 proceeded CMA charges to run consecutively even though they involved different victims and separately legal protected interests.

159    That said, I disagreed with the Defence’s submission that if the sentences for five charges consecutively, this would be substantially above the normal level of sentences for offences under s 3(1) CMA and that the Accused should therefore not receive more than double of what Wong received.

160    A similar submission was rejected by the High Court in Navaseelan Balasingam v Public Prosecutor [2007] 1 SLR (R) 767 where Tay J (as he then was) held at [27]:

With respect, in a case like the present, where there are multiple charges, the district judge ought not to be unduly wary of the maximum provided for the “most serious offence” (which would be ten years’ imprisonment but for which the district judge could only sentence up to seven years for the reasons stated earlier), because there are at least five such offences here. In other words, the maximum punishment in this case is not ten years’ imprisonment but five times ten years’ imprisonment, even without taking into consideration the theft charges. Pursuant to s 18 of the CPC (see [25] above), at least two of the sentences must be consecutive. With the enhanced sentencing jurisdiction of the district judge provided in s 17 of the CPC (reproduced at [33] below), the maximum possible sentence that he could impose in this case is therefore 14 years’ imprisonment. It would be wrong, for instance, for the High Court to be wary of sentencing an offender who has raped three victims beyond the maximum of 20 years’ imprisonment provided for one offence of rape (under s 376 of the Penal Code). Such a view accords with the position taken by the Court of Appeal in Kanagasuntharam v PP ([12] supra) (involving one charge of rape with hurt, one charge of fellatio and one charge of anal intercourse) which noted (at [17]):

Although the total term achieved by this combination was 22 years, which was in excess of the 20-year maximum term prescribed by s 376(2) for the charge of aggravated rape, the most serious charge, this could not be said to be wrong in principle in view of what we have said above of the relation between s 18 of the CPC and the totality principle.

[emphasis added]

161    As such, in a case such as this where there were multiple charges, the Court should not be constrained by the maximum sentence of two years’ imprisonment for a singular CMA charge. To be so constrained would result in a manifestly inadequate sentence given the multiple charges in the present case and the operation of s 307(1) CPC where at least two of the sentences must run consecutively.

162    As I had earlier indicated, among the co-accused persons, Wong had the greater degree of involvement. He was sentenced to a global sentence of eight months and 11 weeks (after adjustment for a one-week remand period). Eight months and 12 weeks’ imprisonment (if there was no one week remand period accounted for) was close to 11 months’ imprisonment.

163    Given the role of the Accused at the apex of the scheme as the mastermind, as one who recruited members of the scheme who in turn recruited more members and was responsible for the top ups amounting to $128,171, I was of the view that a significant uplift from Wong’s global sentence was in order. Further, there were other co-accused persons who were involved in the scheme, and this should be factored in as well in the Accused’s total sentence as they were either recruited by the Accused or by someone else in the scheme. While the Accused may not have personally brought some of them in, his sentence would reflect his position as the mastermind and administrator of the scheme. As the mastermind of the scheme, the Accused offered a commission of between $200 to $1,000 for each YouTrip account, which would incentivise his co-accused persons to recruit more and more members into the scheme. Further, I agreed with the Prosecution’s submission that to successfully carry out and sustain the scheme would entail a degree of coordination between the Accused and the other scheme members, nominees and runners. To that end, he maintained a record of the various top-ups and transactions in his iPad which he had disposed of.

164    As there were a total of 87 such CMA charges preferred against the Accused, I was of the view that it would be proportionate to have five out of the twelve proceeded CMA sentences to run consecutively. In this case, I ordered the sentences for the 10th , 11th , 16th , 19th and 38th charges to run consecutively, which all involved different credit/debit card victims. This led to a total sentence of 27 months’ imprisonment for the YouTrip fraud.

165    The Defence had referred to the case of Public Prosecutor v Cheng Jun [2020] SGDC 106 (“Cheng Jun”) where the offender, a financial manager, logged in the company’s bank account and transferred them to his own account. The Defence submitted that the offender in Cheng Jun was sentenced to 15 months’ imprisonment for an amount of $144,790.74 and the duration of offending was more than three years whereas the total loss to the victim company in the present case was S$122,131.83 and the duration of offending was shorter.

166    In my view, there were distinct differences between Cheng Jun and the present case. First, the offender in Cheng Jun operated alone where the present case was a scheme with multiple offenders of which the Accused was the mastermind. In Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 the court held at [31] that where an offender commits the offence as part of a syndicate, this was an established aggravating factor that may justify an enhanced sentence in the interest of general deterrence: Second, there was only one victim in Cheng Jun whereas if we accounted for the credit or debit card holders in the present case there were at least 40 cardholders. Third, the global sentence in Cheng Jun was 45 months’ imprisonment after accounting for all the amounts taken which amounted to $1,293,496.13.

167    For the remaining offences, there was no real dispute between the Prosecution and Defence in the sentences for the remaining offences which would run consecutively. In fact, the Prosecution has sought for two of the post-2019 RTA amendment s 35(1) RTA 1961 charges to run consecutively but I was of the view that it would suffice, on a totality basis, for one of them to run consecutively.

168    I accordingly ordered the sentences for the following charges to run consecutively together with the 5 sentences for the YouTrip fraud:

a)     Post-2019 RTA amendment s 35(1) RTA 1961 charge (114th

charge)

b)     One s 182 Penal Code charge (90th charge)

c)     One s 129(2)(d) RTA charge (108th charge)

d)     One s 84(3) RTA charge (118th charge)

e)     Section 417 Penal Code charge (112th charge).

169    This resulted in a global sentence of 36 months’ and 16 weeks’ imprisonment, $10,000 fine and 5 years’ DQAC.

170    In ADF v Public Prosecutor and another appeal [2010] 1 SLR 874 (“ADF”) the Court of Appeal held at [146] that an order for more than two sentences to run consecutively ought to be given serious consideration in dealing with distinct offences when one or more of the following circumstances were present namely:

(a)     dealing with persistent or habitual offenders;

(b)     there was a pressing public interest concern in discouraging the type of criminal conduct being punished;

(c)     there were multiple victims; and

(d)     other peculiar cumulative aggravating features were present.

171    I found that all four circumstances cited by ADF were present in this case. The Accused was a persistent offender in view of the numerous charges with regard to the YouTrip fraud as well as the multiple driving offences of a similar nature, there was a pressing public interest in deterring the misuse of financial instruments or facilities’ such as the YouTrip card which would threaten the conduct of legitimate commerce (see Idya at [47]), there were multiple victims in this case and the Accused had committed a number of the offences while on bail. Further, the Accused became uncontactable to the authorities after September 2021, and was only apprehended one year later in September 2022, after a warrant to arrest was issued in April 2022. There was a disturbing and persistent tendency of the Accused to commit acts of deception on multiple victims, be it the YouTrip victims, Singtel or police officers (regarding the driving related offences).

172    In my view, the global sentence of 36 months’ and 16 weeks’ imprisonment, $10,000 fine and 5 years’ DQAC did not offend the totality principle and adequately reflected the criminality of the Accused’s conduct.

Conclusion on sentence

173    The sentences imposed on the Accused were accordingly as follows:

S/N

Charge number

(charge)

Offence

Court’s sentence

Consecutive/ Concurrent

1.

MAC-905292-

2020 (5th )

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

2.

MAC-905295-

2020 (8th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

3.

MAC-905297-

2020 (10th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

4.

MAC-905362-

2020 (11th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

5.

MAC-905364-

2020 (13th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

6.

MAC-905367-

2020 (16th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Consecutive

7.

MAC-905370-

2020 (19th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment s

Consecutive

8.

MAC-905371-

2020 (20th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

9.

MAC-905372-

2020 (21st)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

10.

MAC-905379-

2020 (28th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

11.

MAC-905389-

2020 (38th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

12.

MAC-905396-

2020 (45th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

13.

MAC-907015-

2020 (88th)

Section 182 Penal Code (Cap 224, 2008 Rev Ed)

One week’s imprisonment

Concurrent

14.

MAC-907574-

2020(90th)

Section 182 Penal Code (Cap 224, 2008 Rev Ed)

Two weeks’ imprisonment

Consecutive

15.

DAC-924048-2020 (92nd)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

16.

DAC-924054-

2020 (98th)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

17.

MSC-903130-

2020 (104th)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

18.

MSC-903134-

2020 (108th)

Section 129(2)(d) p/u s 129(2)(iii)

Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment

Consecutive

19.

DAC-901949-

2023 (110th)

Section 9 r/w s 33(a) Enlistment Act (Cap 93, 2001 Rev Ed)

$6,000 fine i/d three week’s imprisonment

NA

20.

DAC-901950-

2023 (111th)

Section 10(2) r/w s 33(a) Enlistment Act (Cap 93, 2001 Rev Ed)

$4,000 fine i/d two weeks’ imprisonment

NA

21.

DAC-901979-

2023 (112th)

Section 417 Penal Code (Cap 224, 2008 Rev Ed) r/w s 124(4) p/u s

124(8) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Nine months’ imprisonment

Consecutive

22.

DAC-902125-

2023 (114th)

Section 35(1) p/u s 35(3)(a) Road Traffic Act 1961

Six weeks’ imprisonment and five years’ DQAC from date of release

Consecutive

23.

DAC-902129-

2023 (118th)

Section 84(3) r/w s 84(7) p/u s 84(8)(a) Road Traffic Act 1961

Two weeks’ imprisonment

Consecutive

24.

MSC-900648-

2023 (119th)

Section 129(2)(d) p/u s 129(2)(iii)

Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment

Concurrent

25.

MSC-900649-

2023 (120th)

Section 35(1) p/u s 35(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment and five years’ DQAC from date of release

Concurrent

 

Global sentence

36 months and 16 weeks’

imprisonment, $10,000 fine and five years’ DQAC (from date of release)



Backdating

174    The sentence of imprisonment was backdated to the Accused’s arrest date of 28 September 2022. As no bail was offered, he had been remanded from that date to the date of the plead guilty mention.

175    The earlier remand period of 11 to 20 Feb 2019 has been accounted for in the downward adjustment in the sentence for the s 417 PC charge (112th charge).

176    The Accused is currently serving sentence.

[note: 1]Taken from the Prosecution’s Schedule of Offences, page 33

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Misuse of Drugs Act (Cap 185, 2008 Rev Ed) – Section 8(b)(ii) of the Misuse of Drugs Act – Sentencing factors – Advanced age of accused"],"date":"2024-10-10","court":"District Court","case-number":"District Arrest Case No. 907697 and 907698 of 2021, Magistrate's Appeal No 9177-2024-01","title":"Public Prosecutor v Nasir Bin Mohamad Nor","citation":"[2024] SGDC 258","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32294-SSP.xml","counsel":["DPP Heershan Kaur, Attorney General's Chambers, for the prosecution","Mumtaj Banu d/o Abdul Kalam Azad, Mumtaj Banu Law Corporation, for the accused"],"timestamp":"2024-10-19T16:00:00Z[GMT]","coram":"Lim Wee Ming","html":"Public Prosecutor v Nasir Bin Mohamad Nor

Public Prosecutor v Nasir Bin Mohamad Nor
[2024] SGDC 258

Case Number:District Arrest Case No. 907697 and 907698 of 2021, Magistrate's Appeal No 9177-2024-01
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Lim Wee Ming
Counsel Name(s): DPP Heershan Kaur, Attorney General's Chambers, for the prosecution; Mumtaj Banu d/o Abdul Kalam Azad, Mumtaj Banu Law Corporation, for the accused
Parties: Public Prosecutor — Nasir Bin Mohamad Nor

Criminal Procedure and Sentencing – Sentencing – Misuse of Drugs Act (Cap 185, 2008 Rev Ed) – Section 8(b)(ii) of the Misuse of Drugs Act – Sentencing factors – Advanced age of accused

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9177/2024/01.]

10 October 2024

District Judge Lim Wee Ming:

Introduction

1       The accused claimed trial to two charges for the unauthorised consumption of monoacetylmorphine and methamphetamine (“the drugs”). Both charges are for what is commonly known as LT2 offences, for offenders with a significant history of drug consumption, where there is a mandatory minimum imprisonment term of seven years.

2       At the end of the trial, I found the accused guilty and convicted him of both charges.

3       At the hearing of the sentencing submissions, the prosecution submitted for nine years’ imprisonment, while defence counsel submitted for eight years and six months’ imprisonment. I sentenced the accused to nine years’ imprisonment. The accused is currently serving his sentence.

4       As the accused has filed an appeal only against sentence and not against conviction, the grounds herein will briefly deal with the grounds for conviction and will elaborate more on the grounds for sentence.

Charges

5       The accused claimed trial to the following two charges:

(a)     “You, … are charged that you, on or before 22 March 2021, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, monoacetylmorphine without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA,

and further, that you, before the commission of the said offence, and were on 13 December 2006 in Subordinate Court No. 24, vide DAC053786/2006, convicted of an offence for the consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”) and punished under s 33A(1) of the MDA 2001 with 5 years’ imprisonment and 3 strokes of the cane, which conviction and sentence have not been set aside to date, you shall now be punished under s 33A(2) of MDA.”

(b)     “You, … are charged that you, on or before 22 March 2021, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, methamphetamine without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA,

and further, that you, before the commission of the said offence, were on 13 December 2006 in Subordinate Court No. 24, vide DAC053786/2006, convicted of an offence for the consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”) and punished under s 33A(1) of the MDA 2001 with 5 years’ imprisonment and 3 strokes of the cane, which conviction and sentence have not been set aside to date, you shall now be punished under s 33A(2) of the MDA.”

Facts

6       The accused was on bail for an earlier drug consumption charge, when he was arrested on 22 March 2021 for jumping bail. Urine samples were taken from the accused and the accused’s urine tested positive for monoacetylmorphine and methamphetamine.[note: 1]

7       A long statement was recorded from the accused under section 22 of the Criminal Procedure Code (“CPC”), by Investigating Officer, Angie Poh, on 23 April 2021.[note: 2] In the long statement, the accused admitted to consuming the drugs.

8       The long statement was recorded from the accused in English. At the trial, the accused alleged that he did not understand English,[note: 3] and claimed that the long statement was fabricated.[note: 4] The accused pointed out to earlier statements recorded from him by Angie Poh, that were interpreted to him in Malay.[note: 5] At the trial, the accused initially chose to have a Malay interpreter, but on the sixth day of the trial, he took the position that he was more comfortable in Mandarin,[note: 6] and thereafter a Mandarin interpreter interpreted for the accused.

Trial

9       At the trial, the prosecution’s case rested largely on:

(a)     Two certificates under section 16 of the Misuse of Drugs Act stating that the urine samples of the accused tested positive for the drugs.[note: 7] Two Health Sciences Authority (“HSA”) analysts, Ng Xue Qin and Goh Mei Ling Evelyn, gave evidence at the trial, confirming the contents of the two certificates.

(b)     The section 22 CPC long statement recorded from the accused by Investigating Officer, Angie Poh, wherein the accused admitted to the taking of the drugs.[note: 8] The Investigating Officer, Angie Poh, gave evidence at the trial, that the accused gave his long statement voluntarily and that he understood English.

10     The accused was self-represented at the trial. The accused raised:

(a)     The defence of medication, asserting that the medication that he was taking may have given rise to the positive test results in his urine samples.[note: 9] The accused was under medication for his chronic liver disease and was dispensed with fentanyl, midazolam, oral simeticone and xylocaine throat spray.[note: 10] Colonic lavage with polyethylene glycol was also given to the accused.[note: 11]

(b)     Allegations disputing:

(i)       his section 23 CPC cautioned statements, and

(ii)       his section 22 CPC long statement.

11     In relation to the accused’s section 22 CPC long statement, the accused objected to the admission of the statement on the basis that the statement was in English, he could not understand English, and the statement was not interpreted to him. An ancillary hearing was held to determine whether the statement should be admitted.

12     At the end of the ancillary hearing, I found that the prosecution had proven beyond reasonable doubt that the accused had made the long statement voluntarily, and that the accused had sufficient understanding of the English language for the statement to be admitted. Accordingly, the long statement was admitted into the evidence. However, at that stage, I reserved my decision on the weight to be accorded to the statement including the accuracy of the statement and the extent to which the accused understood the statement.[note: 12]

Conviction

13     As the accused has only appealed against sentence and not conviction, I will just deal briefly with the grounds for conviction, which are substantially the brief grounds that I gave at the hearing.

14     In view of the two certificates admitted into evidence, under section 22 of the Misuse of Drugs Act, the accused is presumed to have consumed the drugs. Other than a bare assertion that the medication he took may have affected the urine test results, no evidence was adduced by the accused to rebut the presumption.

15     The evidence of the two HSA analysts, Ng Xue Qin[note: 13] and Goh Mei Ling Evelyn,[note: 14] was that the medications given to the accused, would not give rise to the drugs in his urine. The accused did not adduce any evidence to support his assertion that the medications would cause a positive drug result.

16     Furthermore, the evidence of the accused’s doctor for his chronic liver disease,[note: 15] Dr Tan Chin Kimg, when cross-examined by the accused on the polyethylene glycol that was given to the accused, was that this would not affect the urine test.[note: 16] The accused did not dispute the evidence of Dr Tan.

17     In the premises, in the light of the presumption under section 22 of the Misuse of Drugs Act which has not been rebutted by the accused, the prosecution has proven its case beyond a reasonable doubt. In the circumstances, it is unnecessary for me to deal with the section 22 CPC long statement relied upon by the prosecution and disputed by the accused.

18     Nevertheless, I found that the accused’s allegation that he could not understand English and that his long statement was fabricated by the Investigating Officer was incredible. My reasons are as follows:

(a)     The long statement, in particular the accused’s admission that his urine tested positive for the drugs was because he could have consumed the drugs before his arrest,[note: 17] was consistent with the accused’s case for defence, where he stated that he did not dispute the charges against him,[note: 18] and sought to be placed in the Drug Rehabilitation Centre (“DRC”) regime, on the basis that he was merely a drug consumer, without other criminal offences.[note: 19]

(b)     The accused’s explanation that he did not understand the case for defence on which he had placed his thumbprint, as it was written for him in English by a Dutch person,[note: 20] is not credible, as his case for defence was served on 28 January 2022,[note: 21] well after he had given his long statement on 23 April 2021.[note: 22] The accused would have had ample time to consider his position, particularly his allegation that he does not understand English, and it is incredible that he would again endorse a document in English, months after his long statement that was in English if he did not understand English. Furthermore, the accused did not call the alleged Dutch person to give evidence in support of his allegation.

19     Accordingly, I found the accused guilty and convicted him of the two charges against him.

20     Thereafter, the accused agreed to a further drug consumption charge to be taken into consideration for sentencing.

Prosecution’s submissions on sentence

21     The prosecution submitted for an imprisonment term of nine years for each charge, with the sentence for both charges to run concurrently.

22     The prosecution relied largely on the accused being a repeat LT2 offender, with his last sentence in 2012 for LT2, being eight years’ imprisonment.[note: 23]

23     The prosecution further relied on:

(a)     The accused’s pattern of re-offending within two years from his release from prison, and pointed out that after the accused’s release from prison in July 2017 for his last offence, the accused re-offended less than two years later in April 2019.[note: 24]

(b)     The accused repeated the offences while on bail for the April 2019 offence.[note: 25]

(c)     The accused did not report for bail and an arrest warrant was issued against him.[note: 26]

(d)     The accused displayed a complete lack of remorse during the trial, blaming the Investigating Officer for lying and conspiring to frame him.[note: 27]

24     In seeking a one year uplift from the previous LT2 sentence of the accused, the prosecution relied on the High Court decision of Yusran bin Yusoff v Public Prosecutor [2014] SGHC 74, where a one year uplift was imposed from the previous LT2 sentence.[note: 28] As the accused was above 50 years old, he could not be sentenced to caning, but the prosecution did not seek a longer prison term in lieu of caning.

Mitigation plea

25     The defence submitted for a term of imprisonment of eight years and six months for each charge, with the sentence for both charges to run concurrently. Defence counsel who argued the mitigation, was only instructed by the accused after his conviction.

26     In the written mitigation plea that was filed for the accused, defence counsel initially sought the minimum sentence of seven years’ imprisonment, as she was under the mistaken impression that this was the accused’s first LT2 offence.[note: 29] At the sentencing hearing, defence counsel conceded that this impression was incorrect, and accepted that this was the accused’s second LT2 offence.[note: 30] With that in mind, defence counsel then sought a sentence of eight years and six months’ imprisonment.[note: 31]

27     Defence counsel further submitted in mitigation that:

(a)     the accused is 63 years old and will be released close to the age of 70 with no family ties and no financial support,[note: 32]

(b)     the accused was taking care of his mother before he was in remand,[note: 33]

(c)     the mother of the accused may not be around by the time he is released from prison,[note: 34]

(d)     there be no additional sentence in lieu of caning,[note: 35]

(e)     the accused deeply regrets his action of consuming drugs and is apologetic for wasting the court’s time in claiming trial,[note: 36] and

(f)     the accused is trying to reform and stay drug free.[note: 37]

Court’s decision on sentence

28     I sentenced the accused to a term of imprisonment of nine years for each charge, with the sentence for both charges to run concurrently.

29     A deterrent sentence which sends a strong message to the accused against his persistent drug offending, is called for in this case, in view of:

(a)     the multiple antecedents of the accused, including a previous LT2 conviction where the accused was sentenced to eight years’ imprisonment,

(b)     his failure to report while on bail,

(c)     the commission of the offences while the accused was on bail, and

(d)     the consumption charge which the accused agreed to be taken into consideration.

30     The matters raised by the accused in mitigation carry little weight in sentencing.

31     The principal matter relates to the age of the accused who was 63 years old at the time of sentencing. The advanced age of the offender is a relevant factor, if the sentence is a long term of imprisonment. The court should not impose a sentence that effectively amounts to life imprisonment. In Public Prosecutor v UI [2008] 4 SLR (R) 500 at [78], it was held:

… in general, the mature age of the offender does not warrant a moderation of the punishment to be meted out … But, where the sentence is a long term of imprisonment, the offender’s age is a relevant factor as, … the court should not impose a sentence that effectively amounts to a life sentence … that would be regarded as crushing and would breach the totality principle of sentencing.

32     In the present case, the defence has submitted that the accused will be close to 70, by the time he is released from prison. I am of the view that at that age, there is a reasonable prospect that the remaining years of the accused’s life would still be significant, compared to the time that he would have spent in prison for the current offences. In that context, a sentence of nine years’ imprisonment cannot be described as effectively amounting to a life sentence.

33     Furthermore, whether an accused of advanced age is a first offender or has a past criminal record is also relevant in determining whether the sentence is disproportionate and crushing. In Public Prosecutor v Yap Ah Lai [2014] 3 SLR 180, it was held:

(a)     “The key consideration is to assess the impact of such a sentence on the offender having regard to his past record and his future life expectation and consider whether this would be disproportionate and crushing because of the offender’s particular circumstances” (at [88]), and

(b)     “In relation to the offender’s past record, advanced age may be relevant in the sense that where a person of mature age commits a first offence some credit might be given for the fact that he has passed most of his life with a clean record and the prospects for rehabilitation may also be taken to be better” (at [89]).

34     In the present case, the accused was not a first offender. In view of the multiple antecedents of the accused including his previous LT2 conviction, the sentence of nine years’ imprisonment sought by the prosecution is not disproportionate and crushing.

35     Furthermore, the sentence of nine years’ imprisonment is:

(a)     Just six months more or about 6% higher than defence counsel’s proposed sentence of eight years and six months’ imprisonment.  That relatively small difference does not tip the sentence proposed by defence counsel into one that is disproportionate and crushing.

(b)     Is within the bottom one-third of the sentencing range for a LT2 charge, from a mandatory minimum of seven years to a maximum of 13 years’ imprisonment. This could hardly be said to be disproportionate or excessive, when I weighed the previous LT2 conviction of the accused, the current convictions for two LT2 charges, and a third LT2 charge to be taken into consideration.

36     Moreover, an uplift of one year from the previous LT2 sentence imposed on the accused is consistent with the precedent of Yusran bin Yusoff v Public Prosecutor [2014] SGHC 74 cited by the prosecution.[note: 38] In that case, the appellate judge (at [7]) affirmed the sentence imposed by the trial judge in Public Prosecutor v Yusran bin Yusoff [2013] SGDC 396 at [33]-[35], where there was a one year uplift from the previous LT2 sentence. There are no mitigating factors in this case that would justify a departure from the one year uplift given in that case.

37     Taking into consideration deterrence and the principle of escalation, the accused was sentenced to nine years’ imprisonment for each of the two charges on which he was convicted.  The terms of imprisonment are to run concurrently. There was no uplift of sentence in lieu of caning.

Conclusion

38     In conclusion, I sentenced the accused to nine years’ imprisonment. The term of imprisonment is with effect from the arrest of the accused on 22 March 2021.

[note: 1]P3 and P4.

[note: 2]P6.

[note: 3]Transcript (25 July 2023) at page 26, line 23.

[note: 4]Transcript (25 July 2023) at page 29, lines 21-32.

[note: 5]Transcript (26 July 2023) at page 5, lines 19-24.

[note: 6]Transcript (25 April 2024) at pages 1 to 3.

[note: 7]P3 and P4.

[note: 8]P6.

[note: 9]Transcript (29 April 2024) at page 4, lines 19-29.

[note: 10]P7, P9 and DA4 at [4(a)].

[note: 11]DA4 at [4(b)].

[note: 12]Transcript (25 April 2024) at page 8, lines 6-14.

[note: 13]Transcript (17 April 2024) at pages 9-11 and Transcript (26 April 2024) at page 12.

[note: 14]Transcript (18 April 2024) at pages 5-6 and Transcript (26 April 2024) at pages 14-15.

[note: 15]Transcript (26 April 2024) at page 19, line 22.

[note: 16]Transcript (26 April 2024) at page 23, lines 8-13.

[note: 17]P6 at [17], [18].

[note: 18]PA1 at [2].

[note: 19]PA1 at [10].

[note: 20]Transcript (29 April 2024) at page 9, lines 27-29.

[note: 21]PA1

[note: 22]P6.

[note: 23]Prosecution’s sentencing submissions at [4].

[note: 24]Prosecution’s sentencing submissions at [7(a)].

[note: 25]Prosecution’s sentencing submissions at [7(b)].

[note: 26]Prosecution’s sentencing submissions at [7(c)].

[note: 27]Prosecution’s sentencing submissions at [7(d)].

[note: 28]Prosecution’s sentencing submissions at [8(b)].

[note: 29]Mitigation plea at [5].

[note: 30]Transcript (28 August 2024) at page 3, lines 29-30.

[note: 31]Transcript (28 August 2024) at page 7, lines 23-30, page 8, lines 20-21.

[note: 32]Transcript (28 August 2024) at page 8, lines 25-26.

[note: 33]Transcript (28 August 2024) at page 8, lines 2-4.

[note: 34]Transcript (28 August 2024) at page 8, lines 5-6.

[note: 35]Transcript (28 August 2024) at page 8, lines 17-19.

[note: 36]Transcript (28 August 2024) at page 8, lines 8-13.

[note: 37]Transcript (28 August 2024) at page 8, line 30.

[note: 38]Prosecution’s sentencing submission at [8(b)].

"},{"tags":["Civil Procedure – Trial – Bifurcation of Proceedings"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit Nos. 1448 of 2021 and 1490 of 2021","title":"Nguyen Thuy Ha v Tran Thi Bich Ha and another matter","citation":"[2024] SGDC 251","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32309-SSP.xml","counsel":["Mr Clarence Lun Yaodong (Fervent Chambers LLC) for the plaintiff","Mr Mark Tang Yu Zhong (Rajah & Tann Singapore LLP) for the defendant."],"timestamp":"2024-10-19T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Nguyen Thuy Ha v Tran Thi Bich Ha and another matter

Nguyen Thuy Ha v Tran Thi Bich Ha and another matter
[2024] SGDC 251

Case Number:District Court Suit Nos. 1448 of 2021 and 1490 of 2021
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Mr Clarence Lun Yaodong (Fervent Chambers LLC) for the plaintiff; Mr Mark Tang Yu Zhong (Rajah & Tann Singapore LLP) for the defendant.
Parties: Nguyen Thuy Ha — Tran Thi Bich Ha — Jarta (S) Pte. Ltd. — Nguyen Thi Thu Trang

Civil Procedure – Trial – Bifurcation of Proceedings

23 September 2024

Judgment reserved.

Deputy Registrar Shen Wanqin:

1       This is an uncomplicated case featuring members of the Vietnamese community and former business partners who have since turned against one another, over several Facebook posts made by the defendant (“the Posts”). The Posts triggered two defamation suits, DC/DC 1448/2021 (“DC 1448”) and DC/DC 1490/2021. In these suits, the plaintiffs’ case is that the Posts are defamatory in nature, as they convey the meaning that Ms Nguyen Thuy Ha (“Angie”), the plaintiff in DC 1448, had engaged in sexual intercourse to procure business for the plaintiffs in both suits. The defendant’s case is that the gist of the Posts is true.

2       Even though the suits were filed in July 2021, there is still no end in sight. In the last three years, the parties made various applications which formed the subject of several written decisions, including Nguyen Thu Ha v Tran Thi Bich Ha and another matter [2022] SGDC 96, which contains a comprehensive summary of the material facts. In this latest episode, the defendant applied for the proceedings to be bifurcated between issues of liability, and issues of the defence of justification and of damages (“the Bifurcation Applications”). The plaintiffs oppose the Bifurcation Applications on the basis that the issues are linked.

3       Having carefully considered the matter, I find that the defendant has failed to discharge her burden of showing that the proposed bifurcation of the proceedings is just and convenient in the effective and efficient disposal of the matter. The proposed bifurcation will in fact add to the time and costs required to conclude an otherwise uncomplicated matter. I therefore dismiss the Bifurcation Applications and set out the reasons for my decision in this judgment.

Issue 1: Whether the court can bifurcate between issues of liability and defence

4       The plaintiffs argued that the Bifurcation Applications are not “true applications” for bifurcation, as proceedings are usually bifurcated between liability and damages, and a bifurcation between liability and defence is “most unusual” and unprecedented. On the other hand, the defendant submitted that the plaintiffs’ argument is untenable, as there is nothing in the language of Order 33, Rule 2 of the Rules of Court 2014 (“ROC 2014”) that prohibits a bifurcation on that basis. The preliminary issue is therefore whether the court can, as a matter of principle, order that the trial be bifurcated between issues of liability and issues of defence.

5       Order 33, Rule 2 of the ROC 2014 provides for the court’s power to order bifurcation. There is nothing in the text of Order 33, or in principle or policy, that prohibits a bifurcation between issues of liability and issues of defence (Crapper Ian Anthony v Salmizan bin Abdullah [2024] 1 SLR 768 (“Salmizan”) at [57]–[58]). Bifurcation is a case management tool which is used to achieve expeditious proceedings, cost-effectiveness and the efficient use of court resources (Salmizan at [57]). It follows that the court is at liberty to use this tool in any way it deems fit, so long as it is just and convenient in the effective and efficient disposal of the matter (Salmizan at [57]). This position is also supported by the precedents, which show that proceedings have not always been bifurcated between liability and damages (see Salmizan at [58]).

6       Accordingly, I accept the defendant’s submission that the Bifurcation Applications can, in principle, be granted, and that a bifurcation of the proceedings in the manner sought, if granted, is neither unusual nor unprecedented.

Issue 2: Whether the court should bifurcate between issues of liability and defence

7       I then turn to the next issue as to whether the present proceedings should be bifurcated between issues of liability and issues of the defence of justification (“defence”) and of damages. On this issue, the plaintiffs rightly pointed out that the normal practice is for a unified trial on all issues (Dai Yi Ting v Chuang Fu Yuan (Grabcycle (SG) Pte Ltd and another, third parties) [2022] 3 SLR 1574 (“Dai”) at [10]). The burden falls on the defendant, the party who filed the Bifurcation Applications, to show that it is just and convenient to order a bifurcation in the suits (Dai at [10] and [20] and Salmizan at [57]). For the reasons below, I find that the defendant has not discharged this burden.

8       The crux of the matter is whether a bifurcation between liability and defence should be ordered. The answer depends very much on the facts and circumstances of the case (Salmizan at [59]). These include (a) the degree of demarcation between the issues of liability and of the defence; (b) the complexity of the issues; and (c) the effect of bifurcation on the opposing party (Dai at [29]–[37]). These factors are non-exhaustive. Ultimately, the court must keep the bigger picture in mind and make a decision that yields a fair and practical result (Dai at [28]).

Complexity of the issues

9       The defendant accepts that the issues of liability are simple issues. However, her position is that the issues of defence and of damages are “relatively complex”, will “take up substantial time and costs” and will require “far more effort”. According to the defendant, this is because the list of such issues, the number of witnesses required, and the evidence to be given by the witnesses on the defence are “quite extensive”. In making these arguments, the defendant failed to appreciate that the assessment on the complexity of the issues does not merely involve a technical aggregation of the number of issues and witnesses or the evidence to be given. Instead, it requires an in-depth understanding of the dynamic nature of the trial process, and involves a holistic and qualitative analysis of all relevant factors, with a specific focus on the nature of issues involved. On a proper assessment, I find that the issues of defence and of damages cannot be characterised as complex issues for the following reasons.

10     First, the case involves only a modest number of simple factual issues that can easily be addressed by leading evidence from the witnesses. The plaintiffs’ case is that the Posts refer to the plaintiffs, carry a false and defamatory meaning, and were published by the defendant to third parties (see Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 at [35] for the elements of a defamation claim). The defendant disputes liability and raises the defence of justification by arguing that the gist of the Posts is true. Notably, the plaintiffs pleaded only one meaning for the Posts (see [1] above), and this is essentially the same meaning pleaded in the defence that the defendant seeks to justify.

11     Hence, based on the parties’ cases, the main issue pertaining to the defence is whether the Posts are true in substance (ANB v ANF [2011] 2 SLR 1 at [70]). As for damages, the issue is, as the plaintiffs rightly pointed out, ordinarily addressed by way of submissions based on the court’s findings of liability and the evidence (see, for example, Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [90]–[100]); see also the High Court’s observations in Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] 4 SLR 977 at [167]). The defendant has not shown any basis for a different approach. On this analysis, the issues of defence and of damages are clearly not so complex or extensive as to require special and separate consideration in a second stage of the proceedings.

12     Even though the defendant’s list of defence-related “issues” appears to be more extensive as compared to the liability issues (see Annex 1), this is because the defendant generated a list of defence-related questions that appear to be nothing more than questions that counsel may ask during examination-in-chief. In contrast, no such questions were generated in relation to liability. It is therefore unsurprising to see that the number of defence-related questions has surpassed the number of liability issues. However, as a matter of principle, the assessment on complexity cannot involve a perfunctory comparison of the numbers or be dependent on the number of questions a counsel can generate in relation to the issue at hand. Otherwise, any counsel can seek to characterise any issue as a complex issue, by generating more questions on that issue. By way of analogy, a counsel may ask many questions, in different permutations, about the colour of the sky, but the extent of such questions do not detract from the fact that the issue as to whether the sky is blue is a simple one that can easily be resolved. Put another way, the defendant’s questions do not make a simple factual issue complex.

13     The court must perform a more nuanced analysis and look beyond the number of questions to assess the nature of issues involved, to determine whether a case is truly complex. On this point, the defendant concedes that the broad issue pertaining to her defence is simply whether Angie had engaged in sexual intercourse with Hai for the purpose of procuring business for the plaintiffs. This is not a complicated issue (see [10] above). The defendant has not given any convincing explanation as to how the issue can possibly be construed as being complex in nature, or as being more complex as compared to the issues of liability. Further, the defendant accepts that the defence-related “issues” enumerated in her list (see the table under the sub-header “B. Justification”, and the header “III. Non-Agreed List of Issues”, in Annex 1) are “just [questions relating to] disputed facts and disputed significance of facts”. As such, I am not persuaded by the defendant’s argument regarding the alleged complexity of the issues.

14     Second, it is not possible to conclude, based on the number of witnesses required and the extent of evidence they are expected to give, that the issue pertaining to the defence is more complex. To begin with, the number of witnesses or the extent of evidence involved has no direct bearing on the complexity of the issues. The number of witnesses and the extent of evidence they give at trial can be influenced by a range of subjective considerations, including each party’s trial strategy, the role of each witness, or even individual preferences. For instance, even if an issue, such as whether the sky is blue, is not complex, plaintiffs who take a more cautious approach may elect to call a few witnesses to prove that the sky is blue, whereas others may simply call one witness to prove the same point. In either situation, the extent of evidence given by the witnesses does not change the nature of the issue – it remains a simple issue. Therefore, the number of witnesses and the extent of evidence they give, without more, are generally not conclusive of the complexity of the issues involved.

15     In any event, this case involves only four key witnesses – Angie, Nguyen Thi Thu Trang, Nguyen Hai (“Hai”) and the defendant. As for the remaining six witnesses, three will be testifying for the plaintiff, while the remaining three will be testifying for the defendant. Amongst the spectrum of cases that are heard before the courts, such numbers are not considered so large as to render the issues complex, or to warrant a bifurcation of the proceedings. If even a case like this which involves only a modest number of witnesses is treated as a case involving complex issues, it may no longer be meaningful to draw any distinction between complex and non-complex issues.

16     Based on the above analysis, I find that there is nothing complicated about the issues that warrants a split of the proceedings.

Degree of demarcation between issues of liability and defence

17     Apart from the lack of complexity, I find that a bifurcation of the proceedings is not appropriate as the issues of liability and defence are inextricably linked. The defendant concedes that these issues are linked, because there is an overlap in the evidence that is relevant to these issues, particularly in relation to the events of 10 March 2021 when Hai met with several employees from Transviet Travel Group. However, the defendant argues that the overlap is a “slight” one that is purportedly “present in all bifurcation applications”. Having considered the argument in the context of this case (Salmizan at [59]), I find that the overlap in the issues cannot be characterised as a slight one, and, in any event, there is no basis for saying that such overlap is present in all bifurcation applications.

18     In this case, the plaintiffs, in their case on liability, take the position that the Posts bear a false and defamatory meaning, while the defendant, in her defence, takes the position that the Posts are true. Given the parties’ positions and the way they have chosen to run their case, the evidence which the plaintiffs adduce at the liability stage will inevitably be directly relevant to the defence. Further, looking at the nature of the issues involved, one of the key issues that is common to both liability and defence is whether the Posts are false or true. As such, the issues of liability and defence overlap to a significant degree and bifurcation should not be ordered (Dai at [30]).

Effect of bifurcation on party opposing bifurcation

19     The defendant argues that a bifurcation will bring about costs and time savings because if she succeeds on the liability issues, she will not be required to call three additional witnesses to testify on the defence at trial, or prepare the affidavits of evidence-in-chief for these witnesses at the pre-trial stage. According to the defendant, even if she fails at the liability stage, a bifurcation will “still allow parties to control the type of questions that are asked at the first stage”, allow the court to “determine the defamatory meaning”, “direct the defendant to focus on the defence of justification”, and “sharpen the justification issue”. These arguments fail to adequately consider the time and costs inefficiencies arising from the proposed bifurcation, as well as the substantial injustice which the plaintiffs will suffer because of the proposed bifurcation.

20     First, if the plaintiff succeeds at the liability stage, the practical effect of bifurcation is that all seven of the plaintiff’s witnesses as well as the defendant will be required to testify twice – first at trial on liability issues and then again at the trial for the defence and damages issues, when these issues are inextricably linked. It is also significant that the defendant intends to object to evidence pertaining to the defence being given at the liability stage, should the proceedings be bifurcated, even though she acknowledges that there is some overlap in the issues of liability and defence. This will then lead to time being expended on objections and arguments on objections. This approach therefore wholly defeats the objective of time and costs saving.

21     Even in a situation where the defendant succeeds at the liability stage, the defendant’s argument on the time and costs savings arising from a bifurcation is overstated. The bulk of the evidence is expected to be given by four key witnesses, i.e., Angie, Nguyen Thi Thu Trang, Hai and the defendant, who play major roles and are directly privy to the incidents in question. In comparison, the scope of evidence to be given by the remaining witnesses is likely to be more limited, as they were not directly involved in the key incidents. Therefore, the defendant’s time and costs savings arising from the dispensation of three non-material witnesses are likely to be minimal at best. Similarly, the plaintiffs will not gain any significant time and costs savings, as all their witnesses will already have testified at the liability stage.

22     Second, a bifurcation of the proceedings unnecessarily distorts the evidence by compelling the parties to draw arbitrary lines between evidence pertaining to liability and those pertaining to the defence, when it is not possible for the evidence to be so finely tuned in a trial context, especially in the context of this case where the issues of liability and defence are inextricably linked. At trial, lay witnesses give evidence in a narrative based on events and incidents, and it is entirely conceivable that their evidence given in this form will concurrently shed light on the defamatory meaning and falsity of the Posts (i.e., be relevant to both the liability and defence issues).

23     A bifurcation will lead to the evidence being given in bits and pieces, with the witnesses having to arbitrarily confine their evidence to those that are relevant to liability only, when the entirety of the witness’s account, including those perceived to be irrelevant to liability, is required for the court to properly comprehend the truth of the matter, including the meaning of the Posts. As a result, the court is unable to perceive the evidence holistically and is instead burdened with the difficult task of piecing together the scraps for answers. It is not in the interest of justice for evidence to be given in such a contrived manner, and in a way that impedes an informed decision on the issues and the search for the truth.

24     Third, a bifurcation will deprive the plaintiffs the opportunity of running their best case. It is evident from the Statement of Claim that the falsity of the Posts is integral to the plaintiffs’ case on liability. If the proceedings are bifurcated, the plaintiffs will be compelled to abandon a crucial aspect of their case at the liability stage, as the defendant takes the position that the issue relating to the falsity or truth of the Posts is relevant to the defence and can only be addressed at the second stage. In such a situation, the prejudice imposed on the plaintiffs is not insubstantial, as the plaintiffs will be left with no real recourse or alternatives, except to run what they deem to be an inferior case. The prejudice to the plaintiffs is a valid and important consideration militating against an order of bifurcation (Dai at [37]).

25     It is evident from the above analysis that the defendant has erred in not considering the matter adequately from the plaintiffs’ perspective, with the trial process in mind. Based on the arguments and facts presented, I see no reason to make an order of bifurcation in this case. In arriving at my decision, I find that the concerns set out in the cases cited by the plaintiffs’ counsel, concerning Order 14, Rule 12 of ROC 2014, are not applicable here. This is because the concerns were articulated in the specific context of applications made under Order 14, Rule 12, which involves a different legal mechanism whereby a Court can make a preliminary determination on the meaning of the words on a summary basis. The principles articulated need to be understood in that context. Similarly, while the defendant’s counsel has helpfully cited several foreign authorities to assist the court, these cases show, at best, that a bifurcation based on the issues involved is precedented. The cases advanced by the parties, the nature of the claims and issues involved, and the context for the claims in those cases are substantively different from the present case. As such, it is not possible for the court to draw any analogy from those cases. Hence, I consider the facts and circumstances before me to be of paramount importance in determining whether the Bifurcation Applications should be allowed.

Conclusion

26     Based on the facts and circumstances before me, I find that the defendant has not discharged her burden of showing why the proposed bifurcation is just and convenient in the efficient and effective disposal of the matter. I therefore dismiss the Bifurcation Applications with costs to be paid by the defendant. The purpose of bifurcation is not only to achieve efficiency in the disposal of the matter, but also to ensure that the matter is dealt with effectively in the interests of all parties (Dai at [27] and [56]). In assessing the merits of any bifurcation application, parties must take care not to adopt an overly narrow or technical approach, by focusing on the numbers or the dollars and cents involved from one party’s perspective. Instead, parties should apply a pragmatic, commonsensical and holistic approach, by assessing the facts and the practical impact of bifurcation from both parties’ perspective, and with the trial process in mind.

________________________________

Annex 1: Lists of Witnesses and Lists of Agreed and Disputed Issues

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"},{"tags":["Criminal Law – Offences – Property – Cheating","Criminal Law – Offences – Property – Criminal breach of trust","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-10-11","court":"District Court","case-number":"District Arrest Case No 906413 of 2024 & 3 Others","title":"Public Prosecutor v Tan Boon Hiang","citation":"[2024] SGDC 269","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32320-SSP.xml","counsel":["Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor","Tan Shi Ying, Victoria (Public Defender's Office) for the Accused."],"timestamp":"2024-10-18T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Tan Boon Hiang

Public Prosecutor v Tan Boon Hiang
[2024] SGDC 269

Case Number:District Arrest Case No 906413 of 2024 & 3 Others
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor; Tan Shi Ying, Victoria (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Tan Boon Hiang

Criminal Law – Offences – Property – Cheating

Criminal Law – Offences – Property – Criminal breach of trust

Criminal Procedure and Sentencing – Sentencing – Principles

11 October 2024

District Judge Paul Quan:

Introduction

1       This is a case involving cheating and criminal breach of trust in the consignment of diamonds. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Mr Tan Boon Hiang (“Mr Tan”), a 64-year-old Singaporean, incorporated a sole proprietorship ST Jewels and entered into a consignment business involving diamonds with S M Jewels Pte Ltd (“S M Jewels”). He falsely misrepresented to S M Jewels through its director, Shah Hitesh Kirshorkumar (“Mr Hitesh”), whom he had solicited, and deceived S M Jewels into believing that ST Jewels had potential diamond buyers when there were none, thereby dishonestly inducing S M Jewels to enter into three consignment agreements and to deliver five diamonds valued at S$59,328 to him. He later pawned the diamonds for $28,850. He perpetrated the same ruse against two other entities which parted with two diamonds valued at S$20,415.60.

3       Separately, Mr Tan also entered into another consignment arrangement with Amdia Pte Ltd (“Amdia”), whose director Mr Tan had known for six to seven years. Consequently, 11 pieces of jewellery belonging to Amdia valued at S$55,800 were consigned and entrusted to him. When he could not find any buyers for the jewellery, he pawned them for S$6,720 and misappropriated the monies.

Charges

4       Mr Tan has pleaded guilty to two charges, one of cheating S M Jewels under section 420 of the Penal Code 1871 (2020 Rev Ed) (“PC”) and another of criminal breach of trust (“CBT”) against Amdia under section 406 of the PC. He has also consented to have another two similar charges under section 420 of the PC taken into consideration for the purpose of sentence (“TIC”) for cheating the other two entities.

Prescribed punishment

5       For the cheating charge, Mr Tan must be imprisoned for up to ten years that can be coupled with a fine. He is also subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because three separate occasions of cheating have been taken together to amount to a course of conduct and amalgamated as a single charge under section 124(4) of the CPC. As for the CBT charge, Mr Tan must be imprisoned for up to seven years and/or fined.

Parties’ positions

6       Mr Tan has unrelated traffic antecedents.

7       The parties’ positions are not far apart. The prosecution has sought to impose a global sentence of 19 months’ two weeks’ to 21 months’ two weeks’ imprisonment on him based on:

(a)     the total quantum of S$135,543.60 involved across the four charges, of which S$115,128 pertained to the two charges proceeded with against Mr Tan;

(b)     premeditation involved in respect of the cheating charge and the extent of the breach of trust in respect of the CBT charge;

(c)     personal gain as the motivation for committing the offences;

(d)     the aggravating presence of the TIC charges; and

(e)     no restitution being made.

8       The defence has sought a global sentence of 17½ to 18½ months’ imprisonment for Mr Tan instead based on:

(a)     the economic value involved and Mr Tan’s moderate culpability in the cheating offence;

(b)     the fair sentencing position of the prosecution on the CBT charge that is in line with precedent;

(c)     no similar antecedents for dishonesty though recognising that Mr Tan had committed multiple offences; and

(d)     Mr Tan’s early indication of guilty plea evidencing genuine remorseful that is consistent with the voluntary confession he had made to Mr Hitesh and Mr Shenoy.

Court’s decision

9       I sentence Mr Tan to an aggregate imprisonment term of 21 months. I set out the reasons for my decision.

Issues to be decided

10     There are three main issues I have to decide in this case.

Harm-culpability assessment; personal aggravating and mitigating factors; application of case authorities for sentencing

11     They are:

(a)     first, ascertaining the level of harm caused by the offences and Mr Tan’s culpability in the offences;

(b)     second, according the aggravating and mitigatory weight to the factors personal to Mr Tan that present themselves in this case; and

(c)     third, the appropriate individual sentences to be meted out and how they ought to be run.

12     I resolve the issues in this way:

(a)     in relation to the harm-culpability assessment –

(i)       the economic value involved in the offences is not insubstantial and the harm caused is therefore pegged at (the higher end of) low to moderate,

(ii)       Mr Tan’s level of culpability is correctly pegged by the defence at moderate, given that there was planning and premeditation involved, the period of the cheating offence, the extent of the breach of trust for the CBT offence, as well as personal gain motivating the commission of the offences to pay his debts and family expenses;

(b)     in relation to personal aggravating factors, although Mr Tan’s past record does not entail any property-related antecedents, he has committed a slew of such offences in the present case, with the aggravating presence of similar TIC charges;

(c)     as for countervailing mitigating factors, Mr Tan’s early indication of guilty plea is decidedly in his favour and this genuine show of remorse is consistent with his contemporaneous and voluntary confession of criminal wrongdoing to Mr Hitesh and Mr Shenoy; and

(d)     apart from the case authorities that the parties have cited, the precedents suggest that for cheating offences involving similar amounts and level of culpability, the sentences generally range from 12 to 15 months’ imprisonment; it is six to nine months’ imprisonment for CBT offences.

Analysis of issues for cheating charge

13     I analyse the issues in turn, first in respect of the cheating charge.

Issue 1(a): Harm caused by offence is low to moderate

14     The value of the property cheated is a convenient starting point for sentencing because there is often a close relationship between this and the extent of the victim’s detriment caused by the cheating and the extent of the offender’s criminal benefits: PP v Lim Beng Kim, Lulu [2023] SGDC 9 (“Lulu Lim”) at [22] and [23]. I assess the harm caused by the offence to be (on the higher end of) low to moderate. In this case:

(a)     the value of the diamonds cheated is S$59,328;

(b)     S M Jewel’s actual loss was $28,850. This was the amount that Mr Hitesh eventually had to pay the pawnshop to redeem the diamonds;

(c)     the actual benefit that Mr Tan had gained was S$28,850. This was the amount that he had received from pawning the diamonds that he spent; and

(d)     the losses fell where they were because no restitution was made.

15     While there is a proportionate relationship between the victim’s pecuniary loss as well as the offender’s pecuniary benefit on the one hand, and the severity of the sentence on the other, the relationship is not linear because there are other relevant sentencing considerations such as offender culpability and offender-specific factors that have to be evaluated and weighed: Lulu Lim at [29].

Issue 1(b): Mr Tan’s culpability is moderate

16     I assess Mr Tan’s culpability to be moderate.

17     First, the level of planning and premeditation was high, such that Mr Hitesh was systematically and methodically lured by Mr Tan to enter into the consignment agreements:

(a)     Mr Tan first sought Mr Hitesh out about two diamonds on the pretext that he had a customer to show them to in order to secure a sale, which led to the first consignment agreement;

(b)     By returning the first diamond and then telling Mr Hitesh that he had a buyer for the second gave veiled his account with legitimacy when he knew that there was no such buyer;

(c)     A couple of weeks later, Mr Tan enquired about having Mr Hitesh consign more diamonds to him. He maintained the deception that there was a buyer who was still considering purchasing the second diamond. He then issued three postdated cheques to induce Mr Hitesh to enter into a second consignment agreement for three more diamonds;

(d)     He pawned all three diamonds on the same day. A few days later, he also pawned the second diamond and despite doing so, he enquired with Mr Hitesh about yet another diamond that he claimed a customer was interested in buying when he knew that there was no such buyer. Mr Hitesh again consigned this diamond to him which he pawned the same day.

18     Second, Mr Tan was motivated by personal gain to commit the offences. He showed no compunction at all when he pawned the diamonds the very same day that they were consigned to him to clear his debts and pay for his family’s expenses. Third, Mr Tan perpetrated the offences over an extended period of time spanning nearly six weeks.

Issue 2: Offender-specific aggravating and mitigating factors

19     As for personal aggravating factors, even though he does not have property-related antecedents in his past records, he has committed multiple property-related offences that militates against any suggestion that this is his first brush with such a genre of criminal conduct. He should therefore not be regarded as a first offender on that basis, even if he has no prior convictions or dissimilar antecedents: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17].

20     There is also the aggravating presence of similar TIC charges. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37]. Other than S M Jewels, Mr Tan also perpetrated similar cheating offences against two other separate entities and the economic value involved in these offences are also quantitatively significant in excess of S$20,000.

21     Decidedly in Mr Tan’s favour is his early indication of guilty plea. Whether this evinces genuine contrition and remorse is a question of fact. In this regard, I have expressed in PP v Andy Oie Zheng Jie [2024] SGDC 238 (“Andy Oie”) at [32] that:

Expressions of regret and remorse after the offender has been caught are easy to profess and difficult to prove: PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 at [26]. This is no more or less difficult than other findings of fact that a trial or sentencing judge has to grapple with: Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [74], and the contemporaneity of documents, evidence, behaviour and conduct at the material time in question has been used as a reliable fact-finding yardstick.

In this case, there was such contemporaneous display of guilt, remorse and contrition at the time of the offence and this was persuasive. Mr Tan did not merely provide a written confession; he mailed the consignment invoices and the tickets issued by the pawnshop to Mr Hitesh.

Issue 3: Application of case authorities for sentencing

22     The parties have submitted relevant case authorities to support their respective positions on sentence. I sound the same caution as I did in Andy Oie at [37]-[38] about adopting too granular an exercise in this regard and over-emphasising linear quantitative proportionality over the qualitative criminality of the accused:

Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: Lulu Lim at [29].

It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Mr Tan’s overall qualitative criminality as determined by his culpability, in particular my discussion at [17], above, “changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases”: Andy Oie at [40].

23     Having said that, the sentences that the parties have proposed are broadly consistent with the sentences imposed for previous plead guilty cases (other than those they have cited) of similar amounts and culpability. As I understand these cases, their sentences range between 12 to 15 months’ imprisonment where the economic value involved in the offence is about S$50,000 and the level of culpability is pegged at low to moderate.

24     I impose a sentence of 15 months’ imprisonment on the cheating charge.

Analysis of issues for CBT charge

25     I analyse the issues afresh, this time around in respect of the CBT charge. I preface my analysis by observing that the dominant sentencing principle for CBT offences is deterrence: PP v Osi Maria Elenora Protacio [2016] SGHC 78 at [11]. The starting consideration is the value of the property misappropriated: PP v Lam Leng Hung [2017] 4 SLR 474 at [367]. It is the key indicator of the harm perpetrated as well as the culpability of the offender: PP v Ewe Pang Kooi [2019] SGHC 166 at [9].

Issue 1(a): Harm caused by offence is low to moderate

26     In sentencing property offences, the greater the economic value involved in the offence, the heavier the sentence, since the economic value is proxy for the degree of criminal benefit received by the offender and the degree of harm caused to the victim harm and both are relevant sentencing considerations: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [42].

27     I assess the harm caused in this case to be (on the higher end of) low to moderate, given that:

(a)     the value of the diamonds entrusted is S$55,800;

(b)     Amdia’s actual loss was $6,720. This was the amount that Mr Shenoy eventually had to pay the pawnshop to redeem the diamonds;

(c)     the actual benefit that Mr Tan had gained was S$6,720. This was the amount that he had received from pawning the diamonds and spent; and

(d)     the losses fell where they were because no restitution was made.

Issue 1(b): Mr Tan’s culpability is moderate

28     I assess Mr Tan’s culpability in the offence to be moderate. For CBT offences, all other things being equal, the larger the amount dishonestly misappropriated, the greater the culpability of the offender, and the more severe the sentence of the court: Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 at [18]. Apart from the value of the property misappropriated: see [26], above, I also took into account the fact-specific factors enumerated in PP v Lam Leng Hung [2017] 4 SLR 474 at [368] and [389] in arriving at the starting point sentence:

(a)     quality and degree of trust reposed in the offender. Mr Tan was readily entrusted with a sizable consignment of Amdia’s jewellery because of the long-standing relationship that he had with Mr Shenoy over six to seven years, and the goodwill generated from previous business dealings (based on prompt payment to Amdia after selling Amdia’s jewellery) that Amdia had with a previous company that Mr Tan ran with his sister;

(b)     the use to which the monies that was dishonestly taken was put. Mr Leong used the proceeds from pawning the jewellery to pay off his debts; and

(c)     effect upon the victim. Mr Shenoy eventually had to redeem the jewellery from the pawnshop for S$6,720 and come to terms with the realities of having to re-assess his patently mistaken impression of Mr Tan and future dealings with him.

29     Because I have assessed the harm caused to be (on the higher end of) low to moderate and Mr Tan’s culpability in the offence to be moderate, I assess the starting point sentence to be ten months’ imprisonment.

Issue 2: Offender-specific aggravating and mitigating factors

30     I next consider whether any discounts or uplifts to the starting point sentence is warranted depending on the relevant aggravating and mitigating factors personal to Mr Tan that are present in this case: Ewe Pang Kooi at [9].

Mr Leong not regarded as first offender

31     Even though Mr Tan had not committed previous property offences, he had committed a slew of them in the present case. It would be perverse to regard him as a first offender marking his first foray into this genre of criminal conduct, when he would not have been regarded as such, even if he were to have no prior convictions: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17].

Genuine contrition and remorse

32     Mr Tan also voluntarily and contemporaneously confessed his criminal wrongdoing to Mr Shenoy. The consignment invoices and the pawnshop ticket were also duly furnished to Mr Shenoy as well. This is decidedly in Mr Tan’s favour, along with his early indication of guilty plea, to which I accord him the full 30% reduction in sentence.

33     Viewed in the round, his contemporaneous display of genuine contrition and remorse at the time of the offence carries substantial mitigatory weight and warrants a two-month downward adjustment to the starting point sentence. No upward adjustment of the starting point sentence is required because there are no personal aggravating factors. The final sentence that I arrive at on the CBT charge is therefore six months’ imprisonment.

Issue 3: Application of case authorities for sentencing

34     The sentences that the parties have proposed are broadly consistent with the sentences imposed for previous CBT cases of similar amounts and culpability (other than the cases that the parties have cited). As I understand those cases, their sentences range between six to nine months’ imprisonment where the economic value involved in the offence is about S$50,000 and culpability is pegged at a low to moderate level.

Conclusion

Individual sentences

35     The individual sentences that I impose are therefore:

(a)     15 months’ imprisonment on the cheating charge; and

(b)     Six months’ imprisonment on the CBT charge.

Aggregate sentence of 21 months’ imprisonment imposed

36     The parties have agreed that the sentences on both charges should run consecutively. I too agree. Since the offences to which they relate are separate, unrelated and violate different legally-protected interests, the sentences on them should presumptively be ordered to run consecutively: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [41] and [102]. I therefore sentence Mr Tan to an aggregate imprisonment term of 21 months’ imprisonment.

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Public Prosecutor v Jin Xin
[2024] SGDC 268

Case Number:DSC 900420 of 2021
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Gregory Gan and Nur Ishameena (Ministry of Manpower) for the Prosecution; Michelle Yap (M Yap Law) for the accused person.
Parties: Public Prosecutor — Jin Xin

Criminal Procedure and Sentencing – Sentencing – Section 12(1) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Worker falling to his death after an overhead travelling crane collided into his scissor lift – Sentencing tariffs under s 12(1) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) where the offender is a natural person

11 October 2024

District Judge Kow Keng Siong:

Introduction

1       Jin Xin (“Accused”) was convicted after a trial of having failed to take measures as were necessary to ensure the safety and health of his employees at work. This is an offence under s 12(1) read with s 20 and punishable under s 50(a) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”): Public Prosecutor v Jin Xin [2024] SGDC 90 (“Conviction GD”).

2       Following the conviction, the parties submitted their sentencing recommendations. These recommendations, as well as my eventual sentencing decision, are as follows:

Prosecution’s recommendations

Defence’s recommendations

Sentence

12 to 14 months

$80,000 to $100,000 OR 9 months

8 months

Harm: High

Culpability: Moderate

Harm: High (top end of the range)

Culpability: Moderate (middle of the range)

Harm: High

Culpability: Moderate



3       This judgement is to explain my reasons for the sentence. (The same references as those in the Conviction GD will be used in this judgement.)

Parity issue

4       I begin by noting that the key thrust of the Defence’s submissions was that I should apply the parity principle in determining the Accused’s sentence. In this regard, they highlighted the following for my consideration.

Party

Charge

Sentence

Yan San[note: 1]

Offence under s 20 read with s 14A(1)(b) read with s 14A(3) and punishable under s 50(b) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that any contractor engaged by the principal, has taken adequate safety and health measures in respect of any machinery, equipment, plant, article or process used, or to be used, by the contractor or any employee employed by the contractor, namely, by having failed to ascertain that Fusion had conducted a risk assessment in relation to the safety and health risks posed to any person who may be affected by the Fusion’s use of the overhead travelling cranes.

$50,000

Fusion[note: 2]

Offence under s 11(a) read with s 20 and punishable under s 50(b) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that the workplace was safe and without risks to the safety and health to any person within the workplace, namely, by having –

(a) Failed to ensure that only trained personnel had access and control of the OTC and Lift;

(b) Failed to prevent incompatible works involving the concurrent use of the OTC and the Lift from being carried out; and

(c) Failed to take effective measures to warn workers of the approach of the OTC.

Another charge under reg 3(1) punishable under reg 8(a) of the Workplace Safety and Health (Risk Management) Regulations (Cap 354A, Rg 8, 2007 Rev Ed) for having failed to conduct a Risk Assessment in relation to the safety and health risks posed by the use of the OTC was taken into consideration for the purpose of sentencing.

$250,000

Ng Chin Sang (an officer of Fusion)[note: 3]

Offence under s 20 read with s 11(a) and s 48(1) and punishable under s 50(a) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that the workplace was safe and without risks to the safety and health to any person within the workplace, in that Fusion had –

(a) Failed to ensure that only trained personnel had access and control of the OTC and Lift;

(b) Failed to prevent incompatible works involving the concurrent use of the OTC and the Lift from being carried out; and

(c) Failed to take effective measures to warn workers of the approach of the OTC.

$60,000 i/d 3 months’ imprisonment



5       In particular, the Defence submitted that there should be parity between Ng Chin Sang’s sentence and the Accused’s sentence for the following reasons.[note: 4]First, the Accused and Ng Chin Sang had both been convicted pursuant to s 48(1) of the WSHA. Second, the prescribed punishment for their offences is also the same – i.e., s 50(a) of the WSHA. Finally, the Accused’s and Ng Chin Sang’s offences involved the same workplace accident.

6       I am unable to agree that there should be parity between Ng Chin Sang’s sentence and the Accused’s sentence.

(a)     These two individuals had been convicted for different types of safety breaches under the WSHA – namely, s 12(1) in the case of the Accused (breach of his company’s duty as an employer) and s 11(a) in the case of Ng Chin Sang (breach of his company’s duty as an occupier).

(b)     The mere fact that their convictions were pursuant to s 48(1) and that they faced the same prescribed punishment is neither here not there. In Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd [2024] SGDC 148 at [22] to [29], I had explained that an accused persons’ culpability remains a key sentencing consideration for s 48(1) convictions.

(c)     As such, even though the Accused’s and Ng Chin Sang’s convictions involved the same accident, it is important to consider the nature and extent of their respective responsibilities for the accident. In this regard, I found that the primary duty to ensure that (i) the Deceased and Kumarasan had gone for the scissor lift operator course before operating the Lift and (ii) they carried out the Work under the immediate supervision rested on the Accused – not Ng Chin Sang. In my view, there is a closer causative link between the Accused’s failures and the accident than Ng Chin Sang’s failures. This is significant as “the closer the causative link between an offender’s lapses … and the harm, the greater the offender’s culpability: Koh Lian Kok at [78].

(d)     Furthermore, the Accused’s safety breach is also more reprehensible than Ng Chin Sang’s breach. This is because the Accused (i) had allowed the Deceased and Kumarasan to operate the Lift knowing that they did not have the requisite qualification, and (ii) had done so to secure a benefit to himself – i.e., to avoid further delays in the Work.

Applicable sentencing framework

7       Having addressed the parity issue, I will now explain the sentencing approach that I had adopted in this case.

Manta Equipment

8       I begin with Public Prosecutor v Manta Equipment (S) Pte Ltd [2023] 3 SLR 327 (“Manta Equipment”). In that case, the High Court had set out (at [28]) the following sentencing framework for a breach of the statutory duty in s 12(1) – i.e., the same duty involved in the present case.

(a)     First, a court determines the level of harm posed by the offence and the level of the offender’s culpability.

(i)       According to the High Court, the following factors are relevant in determining the level of harm: (1) The seriousness of the harm risked; (2) The likelihood of that harm arising; (3) The number of people likely to be exposed to the risk of the harm; and (4) The actual harm that was occasioned by the risk that stemmed from the offender’s negligent act. The High Court held that where the potential harm is likely to be death or serious injury, the harm can be considered to be “high”. This is so even if it did not materialise. It was also held that if death or serious injury did occur, then the harm would typically be assessed near the top end of the “high” range.

(ii)       According to the High Court, the following non-exhaustive factors are relevant in determining the level of culpability: (1) The number of breaches or failures; (2) The nature of the breaches; (3) The seriousness of the breaches – whether they were a minor departure from the established procedure or whether they were a complete disregard of the procedures; (4) Whether the breaches were systemic or whether they were part of an isolated incident; and (5) Whether the breaches were intentional, rash, or negligent.

(b)     After determining the level of harm and culpability, the court is to then derive the starting point sentence for the offence based on the following sentencing tariffs which apply to claim trial cases:

 

Culpability

Harm

 

Low

Moderate

High

High

$150,000 to $225,000

$225,000 to $300,000

$300,000 to $500,000

Moderate

$75,000 to $150,000

$150,000 to $225,000

$225,000 to $300,000

Low

Up to $75,000

$75,000 to $150,000

$150,000 to $225,000



(c)     Thereafter, the starting point sentence should be calibrated according to offender-specific aggravating and mitigating factors present in the case.

(i)       The aggravating factors include the following: (1) the offender evidently lacks remorse; (2) the presence of relevant antecedents; and (3) any offences taken into consideration for the purposes of sentencing.

(ii)       The mitigating factors include the following: (1) the offender has voluntarily taken steps to remedy the problem; (2) the offender has provided a high level of co-operation with the authorities for the investigations, beyond that which is normally expected; (3) there is self-reporting and acceptance of responsibility; and (4) there is a timely plea of guilt.

Sentencing tariffs

9       The sentencing tariffs in Manta Equipment (see [8(b)] above) are intended to apply to offenders who are legal persons. As such, they cannot be simply applied to the present case – where the offender is a natural person: Manta Equipment at [36].

10     In Koh Lian Kok v Public Prosecutor [2024] SGHC 132 (“Koh Lian Kok”), the High Court had laid down (at [79(a)]) the following sentencing tariffs for breaches of s 12(2) of the WSHA. These tariffs are applicable to an offender who is a natural person:

 

Culpability

Harm

 

Low

Moderate

High

Low

Fine up to $75,000

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

Moderate

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

High

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

More than 12 months and up to 24 months’ imprisonment



11     Although the Accused’s offence involved a breach of s 12(1) and not s 12(2) (as in Koh Lian Kok), I am of the view that the above sentencing tariffs can be applied to the present case as well. My reasons are as follows:

(a)     The purpose of the duties in s 12(1) and s 12(2) is identical – to protect workers from danger. The only difference is that 12(1) imposes the duty on an employer to protect his employee, whereas s 12(2) requires an employer to protect other persons – not being his employees – who may be affected by any undertaking carried on by him in the workplace. In my view, this difference does not materially alter the mischief targeted by s 12(1) and s 12(2).

(b)     The above view finds support in Koh Lian Kok. There, the High Court held (at [57] to [60] and [79]) that the sentencing framework for a breach of s 12(1) and s 12(2) should be the same.

(c)     Finally, both the Prosecution and the Defence had proceeded on the basis that the sentencing tariffs in Koh Lian Kok apply to the present case.

Applying the framework

12     Having set out the sentencing framework and tariffs, I will now apply them to the present case.

Level of harm

13     I start with the level of harm posed by the Accused’s offence. In my view, this should be classified as “high” – in line with the guidance in Manta Equipment at [28(b)] and Koh Lian Kok at [79(a)]: see [8(a)(i)] in italics above. The Work in the present case is inherently dangerous: Conviction GD at [18].

(a)     Kumaresan and the Deceased were working at a height of 7.7 m. The Accused’s failure in ensuring that they were properly supervised had exposed these workers to the risk of fall from height: Conviction GD at [48] to [53].

(b)     Additionally, it bears highlighting that Kumaresan and the Deceased were not qualified to operate the Lift. I agreed with the Prosecution that[note: 5] –

Had the Deceased attended a scissor lift operator course, he would have been better able to anticipate foreseeable safety risks in the work environment, such as the OTC colliding into the scissor lift. The accused’s failure to send the Deceased for a course meant that he was not fully aware of the dangers of working alone on the scissor lift. Further, had a supervisor been physically present, the supervisor could have either stopped the Deceased from working alone or warn the Deceased about any danger from the OTC.

[footnoting removed]

(c)     I also agreed with the Prosecution that the above danger in the Work was heightened by the following:[note: 6]

The OTC could be operated, by remote, from anywhere on Level 3. As Level 3 was a big area with many pillars, the operator might not notice the Deceased working on the scissor lift, thereby increasing the chances of a collision between the scissor lift and the OTC beam.

The chances of such a collision were heightened by the possibility that the moving beam of the OTC might have been in the Deceased’s and Kumaresan’s blind spot when they were working. As the OTC did not emit any audible warning sound while in operation, the workers would not have been aware of the under unless a supervisor was present to act as the lookout.

14     The above safety risks eventually materialised and had contributed to the Deceased’s death: Conviction GD at [59] to [61]. Suffice to note, the Defence accepted that the level of harm in the Accused’s offence “would be in the top end of the high range, since death had occurred”.[note: 7]

Level of culpability

15     Next, I assessed the level of the Accused’s culpability for the offence and the Deceased’s death. I found this to be “moderate”. My reasons are as follows.

(a)     For two days, the Accused had allowed Kumaresan and the Deceased to operate the Lift by themselves – without any immediate supervision from Ravikumar. This was despite knowing that the two workers were not qualified to operate the Lift. In other words, the Accused had recklessly put the safety of two untrained workers at risk.[note: 8]

(b)     The Accused had acted in such a manner because there was a delay in the Work. In my view, the Accused’s explanation that he could not afford the time to send Kumaresan and the Deceased for the scissor lift operator course is not a valid excuse for putting their safety and lives at risk: Conviction GD at [26(b)].

(c)     I accepted the Defence’s submission that the breaches were not systemic. There is no evidence to show that the Accused had routinely instructed his employees to work from height despite not having been trained. The safety breach in the present case appeared to be an isolated incident.[note: 9]

(d)     Finally, I noted that this was not a case where the Deceased had fallen to his death while carrying out the Accused’s instructions. The Deceased had been specifically instructed to stop work when Kumaresan ended his work for the day. Kumaresan reminded the Accused of these instructions again when he left the workplace. For reasons known only to himself, the Deceased disregarded these instructions and chose to carry out the Work alone after Kumaresan had left. If the Deceased had complied with the Accused’s instructions, he would probably not have fallen to his death.

Starting point sentence

16     Based on my assessment of “high” harm and “moderate” culpability, the indicative sentence is more than six months and up to 12 months’ imprisonment: see [10] above.

17     Considering the circumstances of the Accused’s offence, I found that a starting point sentence of eight months’ imprisonment would be appropriate.

Adjustment for offender-specific factors

18     I next considered whether there were any offender-specific factors that warranted an adjustment to the starting point sentence. I agreed with the Prosecution that there were none.[note: 10]

19     For completeness, I wish to state that I am mindful that there had been delay in the prosecution of the Accused’s offence. The accident occurred in 2017. He was however charged in court only in July 2021. In my view, the delay is probably attributable to the advent of the COVID pandemic which stretched from 2020 to 2022. Such a delay should not affect the Accused’s sentencing.

Conclusion

20     For the above reasons, I sentenced the Accused to eight months’ imprisonment. In my view, this sentence is in line with that imposed in Koh Lian Kok, which involved a more serious offence. See Annex A.

________________________________

ANNEX A

CASE COMPARISON

 

Factors

Koh Lian Kok

Accused’s case

A

Level of harm

Low end of the high category

High

1

Seriousness of the harm risked

Risk of death or very serious injury

2

Likelihood of that harm arising

Very high likelihood

3

Number of people likely to be exposed to the risk of the harm

3

2

4

Actual harm that was occasioned by the risk that stemmed from the accused person’s negligent act

Death was caused.

This fact was however not considered in sentencing. The court accepted that the offender had pleaded guilty on the basis that the Prosecution would not rely on the fact of death in their sentencing submissions, and it would not be fair to allow the guilty plea to be rejected given how far the proceedings had progressed.

Safety lapses contributed to the Deceased’s death

B

Level of culpability

High

Moderate

5

Number of breaches

Numerous

Repeated breaches over two days.

6

Nature of the breach

The offender did not ensure that (a) the drivers were registered as a crane operator, (b) they knew of their statutory duties as crane operators, and (c) there was a lifting plan, lifting supervisor, signalman or rigger present at each lifting operation. The above lapses meant that there was a general dearth of qualified persons at all lifting operations conducted by the offender’s employees.

The Accused had failed to ensure that only competent workers were tasked to operate a scissor lift. He had also failed to ensure that Ravikumar supervised the Work.

7

Seriousness of the breach

The offender disregarded the procedures completely. His practice was to only send a single employee to carry out lifting operations.

Major departure from the established procedure.

8

Is the breach systemic or an isolated incident

Systemic

Isolated incident

Additionally, it bears highlighting that the Deceased had been instructed to stop work when Kumaresan ended his work for the day. Despite these instructions, the Deceased continued to work. It was during this time that the accident occurred.

9

Is the breach intentional, rash or negligent

The offender was utterly indifferent to the harm and danger that he could cause or expose others to.

The Accused committed the breaches rashly.

C

Starting sentence

18 months’ imprisonment

8 months’ imprisonment

D

Offender-specific aggravating factors

NIL

NIL

E

Offender-specific mitigating factors

Pleaded guilty

NIL

Cooperation with authorities

F

Sentence imposed

18 months’ imprisonment

8 months’ imprisonment



[note: 1]Agreed Bundle at pages 209 – 211.

[note: 2]Agreed Bundle at pages 212 – 222.

[note: 3]Agreed Bundle at pages 215 – 225.

[note: 4]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [13] to [15], [17] and [23].

[note: 5]Prosecution’s Address on Sentence at [9].

[note: 6]Prosecution’s Address on Sentence at [11].

[note: 7]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [35].

[note: 8]Prosecution’s Address on Sentence at [6].

[note: 9]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [36(a)].

[note: 10]Prosecution’s Address on Sentence at [15].

"},{"tags":["Criminal Law – Statutory offences – Prevention of Corruption Act (Cap 104, 1970 Rev Ed) – Corruptly giving gratification – Incriminating statements – Conduct of statement recording officers – Whether statements inaccurate, unreliable and unsafe to convict-Mens reas of recipient and givers & consistency of their evidence – Acquittal"],"date":"2024-10-11","court":"District Court","case-number":"DAC-913905-2020 & another; DAC-913902-2020 & another, MA-9196-2024-01 & MA-9197-2024-01","title":"Public Prosecutor v Pay Teow Heng and another","citation":"[2024] SGDC 267","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32312-SSP.xml","counsel":["DPPs Alan Loh, Kelvin Chong, Andrew Chia & Yap Jia Jun (Attorney-General's Chambers) for the Prosecution","Tan Chee Meng SC, Paul Loy & Samuel Navindran (Wong Partnership LLP) for Pay","Cavinder Bull SC, Jonathan Yap, Chua Xyn Yee & Chua Ying Ying Erin (Drew & Napier LLC) for Pek"],"timestamp":"2024-10-17T16:00:00Z[GMT]","coram":"Soh Tze Bian","html":"Public Prosecutor v Pay Teow Heng and another

Public Prosecutor v Pay Teow Heng and another
[2024] SGDC 267

Case Number:DAC-913905-2020 & another; DAC-913902-2020 & another, MA-9196-2024-01 & MA-9197-2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Soh Tze Bian
Counsel Name(s): DPPs Alan Loh, Kelvin Chong, Andrew Chia & Yap Jia Jun (Attorney-General's Chambers) for the Prosecution; Tan Chee Meng SC, Paul Loy & Samuel Navindran (Wong Partnership LLP) for Pay; Cavinder Bull SC, Jonathan Yap, Chua Xyn Yee & Chua Ying Ying Erin (Drew & Napier LLC) for Pek
Parties: Public Prosecutor — Pay Teow Heng — Pek Lian Guan

Criminal Law – Statutory offences – Prevention of Corruption Act (Cap 104, 1970 Rev Ed) – Corruptly giving gratification  – Incriminating statements  – Conduct of statement recording officers  – Whether statements inaccurate, unreliable and unsafe to convict-Mens reas of recipient and givers & consistency of their evidence  – Acquittal

11 October 2024

District Judge Soh Tze Bian:

(A)   CHARGES

1       The accused persons, Pay Teow Heng (Pay) and Pek Lian Guan (Pek) claimed trial to the following charges:

(i)     Pay’s charges

(a)     DAC-913905-2020:

“…you, on or after 2 June 2017, in Singapore, while a Director of Tiong Seng Contractors (Private) Limited (“TS”), did corruptly give gratification in the form of a loan of $200,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, and you have thereby committed an offence punishable under Section 6(b)[note: 1] read with Section 7[note: 2] of the Prevention of Corruption Act[note: 3], Chapter 241.”

(b)     DAC-913906-2020 :

“…you, on or around 28 March 2018, in Singapore, while a Director of Tiong Seng Contractors (Private) Limited (“TS”), did corruptly give gratification in the form of a loan of $150,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, and you have thereby committed an offence punishable under Section 6(b) read with Section 7 of the Prevention of Corruption Act, Chapter 241.”

(ii)   Pek’s charges

(a)     DAC-913902-2020:

“…you, while Managing Director of Tiong Seng Contractors (Private) Limited (“TS”), did abet by intentionally aiding Pay Teow Heng (“Pay”), Director of TS, to corruptly give gratification in the form of a loan of $200,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, to wit, on or before 2 June 2017, in Singapore, you approved, facilitated and caused TS to extend a $200,000 staff loan to Pay, knowing that Pay would use the monies from the said staff loan to extend a loan to Foo, and you have thereby committed an offence punishable under Section 6(b) read with Sections 7 and 29(a)[note: 4] of the Prevention of Corruption Act, Chapter 241.”

(b)     DAC-913903-2020:

“…you, in or around March 2018, in Singapore, while Managing Director of Tiong Seng Contractors (Private) Limited (“TS”), did abet by intentionally aiding Pay Teow Heng (“Pay”), Director of TS, to corruptly give gratification in the form of a loan of $150,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, to wit, you approved, facilitated and caused TS to extend a $150,000 staff loan to Pay, knowing that Pay would use the monies from the said staff loan to extend a loan to Foo, and you have thereby committed an offence punishable under Section 6(b) read with Sections 7 and 29(a) of the Prevention of Corruption Act, Chapter 241.”

(B)   STATEMENT OF AGREED FACTS

2       Pursuant to this court’s directions made during a JPTC, the parties had, prior to the commencement of the trial, agreed on a Statement of Agreed Facts (SOAF)[note: 5] dated 1 June 2022.

(C)   PROSECUTION’S CASE

3       The Prosecution’s case is set out in its opening statement dated 1 June 2022[note: 6]. To prove its case against Pay and Peck, the Prosecution tendered a voluminous list of 51 exhibits and called 16 witnesses as follows:

S/n

Name – Role

Language

Marking

1.

Tan Kian Tat – CPIB Officer

(IO Jeffrey)

English

PW1

2.

Tay Wenxun – CPIB Officer

(IO Tay)

English

PW2

3.

Lim Eng Cheung – CPIB Officer

(IO Chris Lim)

English

PW3

4.

Neo Shi Long – CPIB Forensic Examiner

English

PW4

5.

Kee Zhong Wai – CPIB Forensic Examiner

English

PW5

6.

Choo Hong Chun – Witness

English

PW6

7.

Andrew Khng – Witness

English

PW7

8.

Pay Sim Tee – Witness

English

PW8

9.

Pek Dien Kee – Witness

English

PW9

10.

Johnston Kan – CPIB Officer

(IO Johnston Kan)

English

PW10

11.

Frankie Lee – CPIB Officer

English

PW11

12.

Lim Guo Hong Benjamin – CPIB Forensic Examiner

(SI Benjamin Lim)

English

PW12

13.

Low Cher Keow – Witness

(Low)

English

PW13

14.

Foo Yung Thye Henry (Fu Yongtai Henry) – Witness

(Foo)

English

PW14

15.

Angie Heng – Witness

English

PW15

16.

Lew Yii Der – LTA Witness

(Lew)

English

PW16



(D)   CLOSE OF THE PROSECUTION’S CASE & DEFENCE SUBMISSION OF NO CASE TO ANSWER

4       At the close of the Prosecution’s case, Pay and Pek made a submission on no case to answer. Having carefully considered the parties’ submissions[note: 7], and on my assessment and sifting of the various arguments raised by the parties in the light of the evidence adduced by the Prosecution before this Court and the applicable laws governing a Defence No Case to Answer (NCTA) submission at the close of the Prosecution’s case under s 230(1)(j) of the Criminal Procedure Code 2010 (CPC), I dismissed the Defence NCTA submission for the following reasons on what I see are the key disputed issues raised by the parties.

Pay & Peck’s arguments

5       On the law governing a Defence NCTA submission, both parties are in agreement but disagree on what a “minimum evaluation of the evidence as a whole” entails. Based on the case authorities of Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 as well as other authorities cited by the parties on the law governing a Defence NCTA submission, and also the case of Roshdi v PP [1994] 3 SLR(R) 1 (which remains good law contrary to Pay’s arguments), I took the view that while it was clear that the Court must evaluate all evidence in totality without cherry-picking, any evidence that is exculpatory to the inculpatory parts of the accused persons’ CPIB statements must be considered at the end of the trial and not at the close of the Prosecution’s case. The Court is also not required to make comprehensive and conclusive factual findings on how the CPIB statements ought to be interpreted at the close of the Prosecution’s case, as was held by the Court of Appeal in Tan Siew Chay and ors v PP [1993] 1 SLR(R) 267 at [75] that this level of analysis should not be applied to the accused persons’ statements at the close of the Prosecution’s case. The Prosecution’s case on mens rea primarily rests on the accused persons’ admissions in their CPIB statements which show the true purpose of the loans to Foo that despite Pek’s misgivings, Pay and Pek decided to loan $350,000 to Foo because they were worried that Foo might otherwise cause problems for TSC in the T220 Contract, and these admissions alone establish a prima facie case that both Pay and Pek have the guilty knowledge with the requisite corrupt mens rea.

6       In the light of the case authorities of PP v Tan Aik Heng [1995] 1 SLR(R) 710 and Syed Abdul Aziz and anor v PP [1993] 3 SLR(R) 1, whether inculpatory parts[note: 8] of the statements of Pay and Peck are inconsistent with other evidence (such as Foo’s testimony and use of staff loans to Pay to loan to Foo) or has been entirely refuted by Pay and Peck as the makers is irrelevant to the Court’s inquiry at the close of the Prosecution’s case, and hence the inculpatory portions in the statements of Pay and Peck as relied upon by the Prosecution can be relied on to make out a prima facie case.

7       In my view, any alleged inconsistencies between the statements of Pay and Peck and the testimonies and conduct of the investigating officers responsible for recording these statements, as well as whether there is an abuse of the statement recording process (such as whether Pay’s first and second statements had been properly obtained by IO Chris Lim and IO Johnston Kan[note: 9] with little weight to be given to Pay’s alleged concessions in his second statement, and whether Pek’s first statement is “a reflection of IO Jeffrey’s authorship” rather than what he told IO Jeffrey who had allegedly combined and repackaged his answers to frame him[note: 10][note: 11]), which may affect the accuracy and reliability of these statements, as contended by the Defence, are matters to be decided by the Court only after the Defence is called and after the conclusion of the trial as Pay and Pek would need to testify on their respective conduct and circumstances during their statement recordings, including why they had agreed to and signed their statements, before a proper decision can be made on these matters. In this regard, I took the view that Pek’s reliance on the cases of Neo Ah Soi v PP [1996] 1 SLR(R) 199 at [16] and PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 at [78]-[79] that there was a predetermination made by IO Jeffrey of Pek’s guilt prior to the recording of Pek’s statements which raises serious doubts about the reliability of Pek’s statements as recorded by IO Jeffrey, and that the phrasing of Pek’s statement by IO Jeffrey in a manner that casts a certain light on Pek’s mental state (such as imputing a guilty mental state onto him) severely affected the reliability and weight to be accorded to Pek’s statements are issues to be decided after the conclusion of the trial. In any event, the procedural safeguards in respect of statement recording in s 22 CPC were complied with in the present case, namely, the accused be allowed to read through his statement or his statement be read back to him, and he be allowed to make amendments. Both Pay and Pek were given time to read through their statements or had their statements read back to them, allowed the opportunity to make amendments, made amendments where necessary, and eventually signed off on the statements. As noted by the Prosecution, the conclusions and findings that Pay and Pek had urged this Court to make as regards their respective CPIB statements are either not borne out by the evidence before this Court at the close of the Prosecution’s case, or are premised on assumptions of the evidence to be given by Pay and Pek, and hence both of them must be called to testify in their respective defence.

8       Based on the High Court guidance in the cases of PP v Liew Kim Choo [1997] 1 SLR(R) 627, PP v IC Automation (S) Pte Ltd [1996] 2 SLR(R) 799 at [18] and PP v Sng Siew Ngoh [1995] 3 SLR(R) 755, since the threshold for finding evidence to be inherently incredible or manifestly unreliable is high, I took the view that as there are two versions of facts placed before this Court over how the CPIB statements of Pay and Peck ought to be interpreted, it will be more appropriate to adopt the simple approach and assume that the version favourable to the Prosecution is true at the close of the Prosecution’s case and draw the reasonable inferences from it, instead of assessing the evidence to determine if it is so contradictory such that it is manifestly unreliable and should be disregarded completely. Further, while the Court has to find that any discrepancies in the evidence must be so material such that the entire evidential value of the evidence is nullified to the extent that the evidence is not even prima facie reliable (as held by the High Court in PP v Tan Aik Heng [1995] 1 SLR(R) 710 at [29]), I found that there are no discrepancies fitting this description based on the evidence placed before this Court at the close of the Prosecution’s case.

9       In addition to the accused persons’ admissions in their statements, whether there is evidence from which this Court can draw a reasonable inference that the accused persons acted with guilty knowledge (such as how Pay handed Foo the loans, why Pay never informed his wife of the loans for Foo, what happened at the Tiong Seng Contractors (TSC) Board meetings to approve the Loans to Pay for Foo, and whether and why there was any difference from other staff loans, why Pay deleted his Whatsapp correspondence, and whether and why Pay had requested information from Foo regarding LTA projects as contended and relied by the Prosecution), I took the view that both Pay and Peck should be called to testify and explain these issues.

10     As regards the arguments of both Pay and Pek that the Loans were not corrupt as they came with repayment terms and Foo was required to pay interest for the loaned monies with partial repayment of the First Loan, I agreed with the Prosecution that loan would generally include repayment terms and may require the borrower to pay interest and while the Prevention of Corruption Act 1960 (PCA) does not define what constitutes a “loan”, the Singapore Courts have accepted the following definition of “loan”[note: 12]:

“A loan of money may be defined, in general terms, as a simple contract whereby one person (“the lender”) pays or agrees to pay a sum of money in consideration of a promise by another person (“the borrower”) to repay the money upon demand or at a fixed date. The promise of repayment may or may not be coupled with a promise to pay interest on the money so paid.

11     Hence, I accepted the Prosecution’s arguments that the inclusion of “loans” as a specific form of gratification under s 2 of the PCA[note: 13] shows that there is no legal basis to argue that a loan which obliges the borrower to pay interest somehow falls outside the definition of gratification under s 2 of the PCA. Further, caselaw showed that whether Foo repaid or attempted to repay the Loans is irrelevant to the charges which concern corruptly giving the Loans in question in the first place.[note: 14] On the facts, I found that the Loans undoubtedly fall within the definition of gratification under s 2 of the PCA. Foo had testified that he resorted to borrowing from contractors (such as Pay) as he had exhausted all other means of credit, including illegal moneylenders.[note: 15] The Loans enabled Foo to settle some of his outstanding financial liabilities, which was what he needed. In this regard, I rejected Pek’s arguments and reliance on the cases of PP v Low Tiong Choon [1998] 2 SLR(R) 119 and PP v Khoo Yong Hak [1995] 1 SLR(R) 769 that there was no corrupt intention underlying the Loans and their repayments with interest by Foo to Pay. As noted by the Prosecution, regarding the form of the Loans, what this Court should ultimately be concerned with “whether at the time of the transaction… the [accused] possessed the requisite guilty mind.”[note: 16] As held by the High Court in PP v Wong Chee Meng and another appeal [2020] 5 SLR 807 at [73], there is no material difference between gratification taking the form of an outright gift and that in the form of a loan as far as culpability is concerned as the quantum of the loan or payment is reflective of the receiver’s greed or of the level of influence or advantage sought by the giver, and any intention on the part of the recipient of the loan to repay the loan was irrelevant[note: 17]. There is no necessity in law for an express request for a bribe or an express reference to a favour to be shown in order to establish a charge of corruption as to impose such a condition is undesirable and far too restrictive and the nets would not be cast wide enough to catch the often subtle and sophisticated forms of corruption, as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20]. As such, this Court would need to examine the intentions of Pay and Peck behind extending the Loans rather than the form of the Loans and both must be called to testify in this regard.

12     As for Pay and Pek’s submissions to this Court to find that they had no reason to believe or suspect that Foo had any power to show favouritism to TSC based on Foo’s evidence[note: 18], Foo’s evidence is purely speculative, as noted by the prosecution, as Foo cannot speak as to Pay and Pek’s knowledge of LTA’s inner workings and processes and both would have to testify, which they have not yet done. In any case, there is no necessity in law for an express reference to a favour to be shown in order to establish a charge of corruption, as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20] and in view of section 9(2) of the PCA which specifically provides that “In any proceedings against any person for any offence under section 6(b), it is proved that he corruptly gave…any gratification to any agent as an inducement or reward for doing or forbearing to do any act or for showing or forbearing to show any favour or disfavour to any person having reason to believe or suspect that the agent had the power, right or opportunity to do so, show or forbear and that the act, favour or disfavour was in relation to his principal’s affairs or business, he shall be guilty of an offence under that section notwithstanding that the agent had no power, right or opportunity or that the act, favour or disfavour was not in relation to his principal’s affairs or business.” (emphasis mine)

13     On the arguments of Pay and Pek that there was nothing irregular about the information Pay requested from Foo in relation to the messages he sent on 3 January 2018 concerning the N108, N110, and N111 Contracts as Pay’s intention behind those messages was simply to ask whether there was a way for Pay himself to check if TSC had prequalified for the said Contracts and not asking Foo to check on TSC’s prequalification results for him,[note: 19] I agreed with the Prosecution that these are allegations which require Pay to testify as to his intention behind his messages, which Pay has not yet done and can only do so after the Defence is called at the close of the Prosecution’s case.

14     The T220 Contract contained Clause 67.2.1 titled “Gifts, Inducements and Rewards” which prohibited “the Contractor or any person employed by him or acting on his behalf” from offering or giving any gifts or consideration to any individual as an inducement or reward for any action in respect of the T220 Contract. Lew had testified that this clause applied to TSC, its employees (such as Pay and Pek), as well as its subcontractors, and the Loans would have fallen within the scope of Clause 67.2.1.[note: 20] I found that the reliance by Pay and Pek on the case of Yuen Chun Yii v PP [1997] 2 SLR(R) 209 (“Yuen Chun Yii”) is misconceived as there is no similar provision to Clause 67.2.1 in Yuen Chun Yii who was found not to be corrupt as there was no pressure on the giver to give the offender anything and all the indications were that the $5,000 had been given purely on the giver’s own initiative, as a spontaneous gesture of generosity which is clearly absent in the present case.

Pay’s arguments

15     I rejected Pay’s reliance on the case of PP v Fan Yow Lee, Ang Lye Siong, Sia Siong Lim [2014] SGDC 164 where the court held that it was entirely plausible that a genuine friendship could have arisen out of what started as a normal working relationship, and there was a distinct possibility amounting to a reasonable doubt that Fan Yow Lee arranged for these drinking sessions simply because he liked to drink, was happy to drink in the company of his friends whom he saw daily at the Xilinx worksite, and because he could put these drinks on Siong Builder’s tab as this case involved private contractors and is clearly distinguishable from the present case involving a senior civil servant in charge of LTA projects who could make TSC’s life difficult on the T220 Contract. In this regard, I took the view that Pay should be required to testify on the payments for his dinners and other outings with Foo and whether, why and how he treated Foo as a friend for whom he had given the $350,000 loan Pay borrowed from TSC.

16     Pay had also argued that the length of time it took (one month) between Foo’s request for the Second Loan (on 28 February 2018) and Pay’s giving of the Second Loan (on 28 March 2018) showed that the Loans were anything but corrupt.[note: 21] Pay asserted that if he were corrupt, he would have not have shown any hesitance in extending the Second Loan and would have “snatched this opportunity with both hands”.[note: 22] I accepted the Prosecution’s submissions that the delay of one month neither goes towards showing that Pay was hesitant about extending the Second Loan, nor that the Loans were not corrupt. Based on the evidence before this Court, it would appear that the delay was attributable to other factors beyond Pay’s control because Pay took some time to persuade Pek to extend the Second Loan to Foo as Pek had initially refused Pay’s request for Foo’s Second Loan and eventually agreed only after some convincing from Pay and time was therefore needed to process the further staff loan of $150,000 to Pay. The cheque for $150,000 from TSC to Pay[note: 23] and the corresponding payment voucher[note: 24] were both dated 27 March 2018, signifying that the staff loan of $150,000 was only approved and processed on that date. The Second Loan was thus only extended one day after the staff loan of $150,000 was processed. As noted by the Prosecution, what is undisputed before this Court is that the moment Pay was able to cash in the cheque for $150,000 from TSC on 28 March 2018, he had on the same day, without any hesitation, headed to pass Foo the same sum in cash near his residence.[note: 25]

17     In my view, Pay’s arguments that none of the LTA officers who gave loans to Foo and Foo himself were not prosecuted and LTA took no disciplinary action against all of them are matters solely for the Public Prosecutor and the relevant LTA disciplinary body to decide respectively and are outside this Court’s jurisdiction.

18     Pay had made the following arguments for which I agreed with the Prosecution that Pay has a case to answer and should be called to give his defence to address the speculative nature of these arguments :

(a)     Pay asked this Court to find that he was aware that Foo would not have been able to influence the TSC’s ESS scores[note: 26]. But, as pointed out by the Prosecution, this is speculation as Pay has not testified about his knowledge of Foo’s involvement in TSC’s ESS scores.

(b)     On Pay’s arguments for this Court to find that he knew Foo could not have influenced TSC’s bids due to LTA’s “immutable, robust and stringent processes”[note: 27], I agreed with the Prosecution that this is speculative as Pay has not testified about what and how he knew of LTA’s processes at the time, beyond a mere mention in his statement that “[he] know [Foo] is not in a position to influence as LTA has a rigid protocol and system”.[note: 28]

(c)     On Pay’s assertion that he was entertaining Foo since Sep 2016, and relied on the Petty Cash Claim form[note: 29] in support[note: 30], Pay is again, as noted by the Prosecution, taking speculative positions as he has not yet given evidence.

(d)     As regards Pay’s argument that the series of messages exchanged between Pay and Foo regarding the T316 Contract does not go towards establishing the charges against Pay as Foo’s answers were inconsequential[note: 31], I accepted the Prosecution’s submissions that this argument is premised on assumptions of what Pay would testify, which he has not at this stage of the proceedings of the close of the Prosecution’s case and Pay’s own submissions, had even relied on several speculative and hypothetical claims regarding Pay: “Had Pay really intended to obtain some corrupt favour…”[note: 32] and “it would not have been all that novel for Pay to know …”[note: 33].

(e)     Pay had argued that in relation to the North-South Corridor (NSC) Contracts (N108, N110, and N111), TSC would not have been able to prepare for the tenders regardless of Foo’s answers on TSC’s second pre-qualification results, and that “it was evident that Pay was asking this as a matter of curiosity”.[note: 34] But, as noted by the Prosecution, despite seeking the information from Foo, Pay now seeks to downplay the importance of the information he was seeking based on assumptions of what Pay would testify and the imputed intentions underlying his WhatsApp messages, as well as not even committing to a particular position – Pay does not state his positions definitively but relies on tentative and speculative language. For example, “Pay would have known …” and “it is evident that Pay was asking out of curiosity”. Hence, it would be inappropriate, at this stage of the trial, for the Court to resolve these arguments based on speculative assumptions of Pay’s testimony and hence, he should be called to testify in his own defence.

(f)     In relation to Pay’s argument that LTA’s check and balances would have meant that Foo was in no position to be of assistance to Pay,[note: 35] I agreed with the Prosecution that this would require Pay to testify as to his perception of Foo’s ability to influence LTA matters, which Pay has not yet done.

19     In any case, as noted by the Prosecution, section 8 of the PCA clearly applies to Pay and the presumption is that the gratification in the form of the loans that Pay gave to Foo were corrupt and he has to rebut the presumption and hence, his defence must be called.

Pek’s arguments

20     On the proposition as espoused by the Court of Appeal in PP v Tan Aik Heng that where there are discrepancies in the evidence, the Court must find that the discrepancies are so material such that the entire evidential value of the evidence is nullified to the extent that the evidence is not even prima facie reliable[note: 36], I rejected Pek’s arguments that this should be limited to discrepancies between statements[note: 37]. I agreed with the Prosecution that Pek’s arguments amounted to taking a myopic view which unnecessarily restrict the principle in PP v Tan Aik Heng and is contrary to the decision of the Court of Appeal in PP v Tan Aik Heng which did not limit its analysis to the specific context of the case before it (i.e., the discrepancies between the co-accused’s statements), and hence the proposition in Tan Aik Heng should hold true for all forms of evidence.[note: 38]

21     As for Pek’s claims that the Prosecution’s reliance on the case of PP v Hendricks Glen Conleth [2003] 1 SLR(R) 426 (“Hendricks Glen”) to show that it suffices if Pek knew or should have suspected that something was improper with the Loans[note: 39] is “highly questionable” in the light of academic commentary[note: 40] cited by Pek, I agreed with the Prosecution that the case of Hendricks Glen which specifically involved a corruption case is still good law as it has not been overruled by the Court of Appeal decisions (relied by Pek) of Bachoo Mohan Singh v PP [2010] 4 SLR 137 (which involved a section 209 Penal Code offence of giving false evidence by a lawyer to the court), and PP v Koh Peng Kiat and another appeal [2014] 4 SLR 703 (which involved an optometrist who assisted his partner, Neo, and a friend, Wong, to purchase counterfeit contact lenses from one ‘Ah Seng’ and Neo and Wong resold these contact lenses to others). I see no reason why this Court should accept academic commentary and non-corruption cases cited by Pek over the specific corruption case of Hendricks Glen itself. As pointed out by the Prosecution, as the Court in Hendricks Glen did not phrase the proposition in a manner which suggested that it was intended to be a test of general application and did not rely on it to ground a conviction, what Pek had omitted to mention is that in Hendricks Glen, the Prosecution had put forth, as a general proposition, that the mens rea for an abetment offence under the PCA would be made out so long as the abettor had knowledge that something was improper about the underlying transaction[note: 41] and it was on this basis that the Court relied on the proposition to pronounce that the mens rea element in that case was not legally made out.

22     On Pek’s argument that the case of PP v Lai King Choon [2004] SGDC 57 (“Lai King Choon”) stands for the proposition that Pek needed to have known Pay intended to give the loans corruptly[note: 42] , I agreed with the Prosecution that the Court in Lai King Choon had expressly pronounced that the presumption in s 8 of the PCA[note: 43] applied both to the abettor and the primary offender, such that the burden was on the abettor to prove on a balance of probabilities that he did not know the circumstances constituting the offence when he facilitated the primary offender in corruptly offering gratification.[note: 44] Based on the case authorities of Garmaz s/o Pakhar and anor v PP [1995] 3 SLR(R) 453 (where the High Court rejected the appellants’ contention that the elements in the charges were not established, as “the presumption of “corruption” in s 8 PCA was properly invoked against the first appellant, Garmaz who was a former Police officer charged with corruptly receiving gratification from one Tan and also against the second appellant, Jaswinder who was charged with abetment of Garmaz’s offence for intentionally arranging with the said Tan to provide the gratification to Garmaz), PP v Lai King Choon [2004] SGDC 57 (which held that the s 8 PCA presumption should apply to an offence of abetment by intentional aiding under s 29 of the PCA) and the High Court decision in Lau Cheng Kai and ors v PP [2019] 3 SLR 374 (which held that the PCA statutorily deems that a conspirator has committed a PCA offence even when he has not factually committed it and further held that s 29[note: 45] of the PCA “treats every abetted PCA offence as having been committed even if the PCA offence abetted is factually not committed in consequence of the abetment”), I accepted the Prosecution’s submissions that Pek is deemed to have committed the principal offences, and therefore s 8 PCA applies to presume that he had the requisite mens rea for his offence and to not apply the s 8 PCA presumption would place Pek in a more favourable position than Pay, although he had abetted a person seeking to have dealings with a public body. Further, I agreed with the Prosecution and rejected Pek’s arguments that the policy consideration noted by the Court in Lai King Choon should be confined to scenarios where the abettor is a public officer and is thus not engaged in the present case as this is an unnecessarily narrow view, unsupported by the legislative purpose of s 8 PCA and s 29 PCA, and also contrary to the following observations of the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [15] that : ”To give effect to the objective of the Act to provide for the more effectual prevention of corruption, the Legislature has seen fit to displace the presumption of innocence against an accused person in the limited cases falling within s 8. These corruption cases are viewed with particular severity because public officers and government matters are involved.” Hence, contrary to Pek’s submissions, the presumption in s 8 of the PCA applies to Pek and he must rebut the presumption and his defence must be called. In any event, as noted by the Prosecution, this issue is ultimately moot because the statements from both Pay and Pek showed that they both knew the whole scheme and Pek did not have any less knowledge than Pay. The evidence from Pek’s first statement44 showed that Pek knew Pay intended to give the Loans corruptly.45 Pek was against the idea of giving loans to Foo and had initially rejected Pay’s requests for TSC to loan money to Foo, explaining to Pay that giving loans to Foo was “not right”, a conflict of interest, “sensitive”, and against TSC’s contract with LTA. However, Pay persuaded Pek that giving loans to Foo would make Pay’s work in the T220 Contract easier; Pek understood this to mean that Pay did not want Foo to cause any problems for the T220 Contract, and loaning Foo money would ensure that the T220 Contract ran smoothly. Pek’s eventual solution was to agree with Pay, but distance himself (and TSC) from the Loans by approving of TSC staff loans to Pay on condition that Pay would have to return the money to TSC, and Pay subsequently making the Loans to Foo.

23     I rejected Pek’s arguments as speculative with no evidence adduced before this Court that LTA officers who gave loans to Foo were not charged with corruption because “these were acts of human kindness, human sympathy, in response to a believable story about [Foo’s] mother’s gambling debts”. Further, as noted by the Prosecution, Pek made no mention of his sympathy for Foo in his statements or address this issue elsewhere which is unsurprising as Pek shared no personal friendship with Foo, unlike Pay. In any case, whether the LTA officers should be charged for corruption is a matter for the Public Prosecutor to decide and outside the jurisdiction of this Court.

24     While I agreed with Pek’s submissions that Foo’s evidence must be accepted by the Prosecution as true unless the Prosecution impeached Foo’s credit under s 157 of the Evidence Act[note: 46], there is a distinction between credit and credibility[note: 47] and s 157 of the Evidence Act on impeaching the credit of a witness does not preclude the Court from assessing the evidence of a witness before it and forming its own conclusion on a witness’s credibility. A court’s findings as to the credibility of a witness can be based on his demeanour and the internal consistency of his own evidence, or the external consistency between his own evidence and extrinsic evidence (such as the evidence of other witnesses, documentary evidence or exhibits), or some combination of these.[note: 48] It is trite law that there is no rule of law that the testimony of a witness must either be believed in its entirety or not at all and a Court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other by scrutinizing each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances.[note: 49] In this regard, I took the view that as Foo’s evidence (where different parts were cited by the Prosecution and the Defence as favourable to each party in their respective Defence NCTA submissions) is internally inconsistent, and also externally inconsistent with other extrinsic evidence (such as the statements of Pay and Pek), it is premature to consider Foo’s evidence at the close of the Prosecution’s case, but it is open to both the Prosecution and the Defence to submit on why and which parts of Foo’s evidence should be accepted or rejected for this Court’s determination (in support of the Prosecution’s case or the Defence, as the case may be) after both Pay and Pek have given their evidence and after the conclusion of the trial.

25     On Pek’s arguments that as far as Foo was concerned, the loans to him came from Pay and not Pek and TSC and Foo would only be beholden to Pay and not Pek and TSC, the evidence adduced at the close of the Prosecution’s case showed that Pay did not inform Foo that the loans came from TSC and not Pay personally, but as a TSC director, Pay had appeared to seek favours from Foo for TSC which would also benefit Pek as TSC’s Managing Director. In any case, as noted by the Prosecution, the evidence showed that the actual money came from TSC to Pay to Foo and that TSC then made Foo repay to Pay to repay TSC all the loans plus interest, and as there is no necessity in law for an express reference to a favour to be shown in order to establish a charge of corruption[note: 50], particularly in view of s 9(2) of the PCA as mentioned above, I agreed with the Prosecution that the Prosecution does not have to prove that Foo was actually showing favour as the corruption offence is made out because the accused persons paid with that intention; ie, when they gave the loan, it was with the intention that Foo would not create trouble for them,

26     Pek had made the following arguments for which I agreed with the Prosecution that Pek has a case to answer and should be called to give his defence to address the speculative nature of these arguments:

(a)     Pek’s arguments that [22] and [23] of his further statement[note: 51] clarifies that he mentioned it was “wrong” to give the Loans to Foo as it would create inconvenience for himself, for Pay, and for TSC[note: 52]. However, as noted by the Prosecution, this is not borne out by [22] and [23], which are the paragraphs relied on as Pek had said nothing about inconvenience at these paragraphs. In fact, at [23], Pek had admitted that lending monies to government employees is ‘sensitive’, i.e., wrong. As Pek is now attempting to put a spin on his further statement which is not supported by the plain wording of the statement, I agreed with the Prosecution that until Pek takes the stand, his assertion is without evidential basis.

(b)     Pek’s assertions for this Court to find that he was not warned that (i) he was the target of the investigations, or (ii) that he needed to give an accurate statement are not borne out by the evidence before this Court[note: 53]. As Pek has hitherto not given evidence before this Court that he was not warned that he was the target of investigations, Pek is asking this Court to assume this fact given that such a warning was not recorded on Pek’s first statement[note: 54] and IO Jeffrey had explained that he did not record down the warning as he did not have this practice.[note: 55] There is similarly no evidence hitherto that Pek was not warned of the need to give an accurate statement as IO Jeffrey maintained during cross-examination that Pek was given this warning.[note: 56] Hence, I agreed with the Prosecution that until Pek gives evidence, these assertions are without evidential basis.

(c)     As for Pek’s argument for this Court to find that he did not understand the meaning of “vividly” when his first statement was recorded since he did not attempt to clarify his use of the word “vividly” in his clarification letter or second statement[note: 57], I accepted the Prosecution’s submission that there is no evidence before this Court that Pek did not know the meaning of the word “vividly” as the absence of the word “vividly” in Pek’s letter and further statement may easily be explained by the fact that he actually knew the meaning of the word and did not take issue with it being used in his first statement. Hence, until Pek gives evidence, this argument is speculative.

(d)     In relation to Pek’s argument that he felt “lulled” into being less scrupulous or “rushed” into reviewing and signing his first statement at the time[note: 58], I agreed with the Prosecution that there is hitherto no evidence to show or suggest that Pek felt “lulled” into being less scrupulous or “rushed” at the time and insofar that Pek is claiming that IO Johnston had “rushed” him by telling Jeffrey/Pek that Pek’s wife was arriving, this was not put to IO Johnston.[note: 59] Hence, until Pek gives evidence, this argument is speculative.

(e)     On Pek’s argument that there remain unresolved questions about how Pay came to record a further statement which so dramatically changed his account of what happened[note: 60], I agreed with the Prosecution that only Pay can explain why he recorded his further statement.

27     For all the above reasons, I found that at the close of the Prosecution’s case, there is some evidence which is not inherently incredible and which satisfies each and every element of each of the 2 charges preferred respectively against Pay and Peck on which they could lawfully be convicted, and I therefore called on them to give their respective defences as required under s 230(1)(j) of the CPC. Both Pay and Pek elected to give evidence for their respective defences, and while Pay has no other witnesses as stated in his Case for the Defence, Pek had called 2 other witnesses for his defence as follows:

S/N

Name

Role

 

1.

Pek Lian Guan

Advisor, Tiong Seng Holdings Ltd (“TSH”)

Pek

2.

Colin Tan

Former Deputy Managing Director,

Tiong Seng Contractors Pte Ltd

(“TSC”) and current Director at

Gammon Construction Limited

DW1

3.

Pek Zhi Kai

Executive Director of TSH and Deputy Managing Director of TSC

DW2



(E)   KEY ISSUES ARISING FROM THE TRIAL FOR THE COURT’S DETERMINATION

28     Having carefully read and considered the voluminous submissions[note: 61] of the parties at the close of the trial comprising more than 1500 pages, I took the view that there are 3 key issues arising from the trial for my determination before I can decide on whether Pay and Pek should be convicted or acquitted of their respective charges. These 3 key issues are as follows:

(a)      Whether the incriminating CPIB statements of Pay and Pek are inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek in that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC?

29     The key authorities on the legal principles and cases governing unreliable statements cited by the Defence are as follows:

(a)     In Muhammad bin Kadar and another v PP [2011] SGCA 32, the Court of Appeal held at [57] to [63] as follows:

“…..in Singapore, the law provides police officers with great freedom and latitude to exercise their comprehensive and potent powers of interrogation in the course of investigations. This means that the evidential reliability of any written statements taken from accused persons rests greatly on the conscientiousness with which the police investigators who conduct the process of examination and recording observe the prescribed safeguards.

58    It also appears to be the case that written statements taken by the police are often given more weight by finders of fact as compared to most other kinds of evidence. This is because formal statements taken by the police have the aura of reliability that comes from their being taken (as would be normally, and correctly, assumed) under a set of strict procedures strictly observed by a trustworthy officer well-trained in investigative techniques. This aura is further enhanced by the admissibility requirement in s 122(5) that the recording police officer must be of the rank of sergeant or above. It is, it may be said, statutorily assumed that such senior police officers are competent and will discharge their obligations conscientiously. All in all, it seems that public policy is in favour of trusting the integrity of the police, and this gives them a certain freedom to conduct their investigations more effectively and efficiently, statement-taking included. However, such an approach comes with certain inherent risks.

59    There is always a small but real possibility that an overzealous police officer who believes that a suspect is guilty will decide, perhaps half-consciously, that strict compliance with the procedural requirements for statement-taking may contribute to a factually guilty offender being let off. He may not go so far as to extract an incriminatory statement by threat, inducement or promise, or a statement that is otherwise involuntary. All that is required for a miscarriage of justice to occur is for such a police officer to record the statement with embellishments, adding nothing more than a few carefully-chosen words to the suspect’s own account. If the statement is not read back or signed soon after by the suspect (with proper interpretation where appropriate), there is no assurance that the statement faithfully reflects what he had actually disclosed. Alternatively, a police officer might simply be indolent, leaving the recording of the statement to well after the examination. His memory of the interview having faded, such an officer might fill in the gaps based on his own views about the suspect’s guilt. Such questionable statements could, standing alone, form the basis for wrongful convictions even for capital offences if an accused, disadvantaged by the lapse of time and memory, is unable to convince the court that he did not say what appears in writing to be his words. The salutary requirements of the CPC and the Police General Orders, especially those requiring statements to be promptly reduced to writing, immediately read back to their maker, and corrected if necessary and signed, are the only prescribed safeguards standing in the way of such an unacceptable possibility.

60     Police investigators are aware when they record statements that they are likely to be tendered as evidence before a court and that there is therefore an uncompromising need for accuracy and reliability. The objective of the relevant provisions in the CPC and the Police General Orders is to ensure that both these twin objectives are met in every investigation. For this reason, as well as what we have articulated earlier, we think that a court should take a firm approach in considering its exercise of the exclusionary discretion in relation to statements recorded by the police in violation of the relevant requirements of the CPC and the Police General Orders (or other applicable legal requirements). This means that the court should not be slow to exclude statements on the basis that the breach of the relevant provisions in the CPC and the Police General Orders has caused the prejudicial effect of the statement to outweigh its probative value.

61     If the Prosecution seeks to admit a statement recorded in breach of the relevant provisions in the CPC and/or the Police General Orders, it will bear the burden of establishing that the probative value of the statement outweighs its prejudicial effect. The Prosecution can discharge this burden if, for instance, some reasonable explanation is given for the irregularity such that the court can find that the probative value of the statement exceeds its prejudicial effect.

62     Statements taken in deliberate or reckless non-compliance (or “flagrant” violation, to adopt the words of Rajendran J in Dahalan ([46] supra) at [85]) in relation to procedural requirements will generally require more cogent explanation from the Prosecution to discharge its burden, as compared to where the irregularities are merely careless or arising from some pressing operational necessity. This would be because the bona fides of a recording police officer who deliberately breaches the requirements or knowingly disregards them would necessarily be more questionable. Further, such conduct should not be encouraged. The court should be wary of accepting any explanation by way of ignorance of the correct procedures, considering that s 122(5) imposes an admissibility requirement that the recording police officer is to be at least of the rank of sergeant (a rank implying a certain level of responsibility and competence). That having been said, the court should always evaluate probative value and prejudicial effect on the facts of each scenario.

63    Where there is a dispute of fact regarding whether the statement was indeed irregularly recorded, or where the Prosecution wishes to adduce evidence to explain an irregularity, a trial-within-a-trial should be held….” (emphasis in bold mine)

(b)     In PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 at [78] to [86], where in interviewing the accused, the recording officer had made notes on a piece of paper and some four hours later, in writing up his pocket book, had “expanded” the notes and entered them into his pocket book and thereafter destroyed the paper, the High Court noted that in “expanding” what was said by the accused, the recording officer had used words that were not uttered by the accused and the officer’s confident assertions in court that he was not required to have a pocket book with him and that it was accepted practice to make entries on pieces of paper and transcribe the entries later into the pocket book were held to be untruths. Hence, the High Court held that it would be unsafe to admit in evidence what the accused had allegedly told the recording officer in the statement which was not admitted. (emphasis in bold mine)

(c)     In Parti Liyani v PP [2020] SGHC 187 at [86], the High Court overturned the accused’s conviction as it found that it was “unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33” due to the likelihood of inaccuracies brought about by the recording process. The High Court did not find it necessary to canvass every single inaccuracy in the statement, nor did the High Court need to be satisfied that every single possible inaccuracy was proven before finding the statement unreliable. Instead, the High Court highlighted a handful of examples which showed that the statement was not recorded accurately as follows:

“…..the Judge failed to consider the circumstances under which P33 was recorded, where a reasonable doubt exists as regards the accuracy of the answers in P33. P33 was recorded in English and read to Parti in Bahasa Melayu. This, the Defence submits, renders it conceivable that the particulars of P33 had been misheard or mistranslated.[note: 119] Parti testified that an example of this is at Q14/A14 of P33, where her answer was inaccurately recorded as her having said that she had placed the Pioneer DVD player “into” one of the three boxes, when she had actually placed it “near” the boxes and was not sure if Robin had put it inside the box.[note: 120] While nothing material turns on this alleged error, this is an example of how the mistranslation could have occurred in the statement recording process. Additionally, the existence of obvious errors in Q16 and A17 (ie, missing words or letters) supports the likelihood that IO Amir made errors in accurately recording P33 itself, especially given the fact that the statement was recorded at 1.44am to 5.57am on 4 December 2016.[note: 121] With the likelihood of inaccuracies in the recording of P33 itself, I find that it is unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33.”

(d)     In Chong Hoon Cheong v PP [2022] 2 SLR 778 at [70], the Court of Appeal held that it is necessary first to determine the precise content of the statement and next to determine the intended meaning of that statement where the Court is concerned with the subjective intention of the statement-maker at the time the statement was made, and if there is a reasonable doubt as to either what the accused person actually stated or what the accused person intended to mean when he made such statement, the Court should not place any weight on that statement, simply because it cannot be satisfied as to what was in fact said or meant. (emphasis in bold mine)

(e)     In Raj Kumar s/o Aiyachami v PP and another appeal [2022] SGCA 45 ("Raj Kumar") where the trial judge held that as the offender had a chance to read his voluntary statement, but he did not make any amendments and signed it, and that is evidence that his statement is true, the Court of Appeal disregarded the statement. This case provides a useful illustration of how the above legal principles governing unreliable statements have been applied. The Court of Appeal dealt with the appeal of one of the appellants, Ramadass, who had been convicted under the Misuse of Drugs Act (MDA) for delivering drugs. The case hinged on the admissibility and reliability of several statements made by Ramadass to the Central Narcotics Bureau, which were recorded by Sgt Meena. Ramadass contested the admissibility of his first, second, and third statements (referred to as the "Contested Statements") during his trial. The Court of Appeal recognized that the prosecution's case against Ramadass heavily depended on these statements, stating that "the case against him rests almost entirely on the admissibility and reliability of the Contested Statements." Ramadass’s appeal primarily focused on challenging the accuracy and reliability of these statements. He argued that the statements were not accurately recorded by Sgt Meena and, therefore, could not be relied upon to secure his conviction. The Court of Appeal meticulously examined the reliability of each of the Contested Statements to determine whether they could be used as evidence to uphold Ramadass's conviction. The Court's analysis of these 3 statements which was central to the resolution of the appeal and its findings that they were unreliable and unsafe to convict Ramadass were as follows (emphasis in bold below mine):

(i)       In examining the first statement made by Ramadass, the Court of Appeal scrutinized the inconsistencies in the evidence provided by Sgt Meena, who recorded the statement. Ramadass testified that Sgt Meena had suggested certain words or descriptors for him to use during the recording of his statement. In response, Sgt Meena testified that she used inverted commas in the statement to indicate the exact words and phrases that Ramadass had supposedly used. However, there were other words in the statement that she claimed Ramadass had used, but these words were not marked with inverted commas. The Court of Appeal found this discrepancy problematic, particularly when Sgt Meena was given the opportunity to explain the inconsistency during her re-examination. When questioned about how sure she was that Ramadass had used specific English words, such as "drugs," which were not indicated by inverted commas in the statement, Sgt Meena responded that she was "very sure." Despite this confidence, she admitted that she could not explain why these words were not marked with inverted commas. Additionally, Sgt Meena could not reconcile the timing at which the first statement was supposedly recorded with the entries in her field diary. Given these issues, the Court of Appeal concluded that it was "unsafe to accord [the first statement] significant weight," raising serious concerns about its reliability as evidence.

(ii)       Regarding Ramadass's second statement, he claimed that Sgt Meena had "supplied the words contained" in the statement, rather than accurately recording what he had said. Specifically, Ramadass testified that he did not inform Sgt Meena that the term "jama" meant drugs, a critical detail in the statement. The trial judge observed that Ramadass had the opportunity to amend any incriminating portions of the second statement but chose not to do so. This fact was initially taken as a sign that the statement might be reliable. However, the Court of Appeal took a different view, finding that the second statement was similarly compromised by Sgt Meena’s failure to properly denote the words Ramadass allegedly used, just as in the first statement. Because of these issues, the Court of Appeal determined that it was "impossible to overlook" these defects. Despite agreeing with the trial judge that the second statement was admissible, the Court concluded that it was "unsafe to accord the Second Statement significant weight." This conclusion echoed the Court's concerns about the first statement and further undermined the reliability of the evidence presented against Ramadass.

(iii)       In addressing Ramadass's third statement, the Court of Appeal considered his allegation that the key contents of the statement originated from Sgt Meena rather than from him. Specifically, Ramadass denied having told Sgt Meena that he had brought drugs into Singapore or where the drugs were placed. The trial judge had concluded that the details in the third statement could only have come from Ramadass himself, particularly because he signed the statement without making any amendments. However, Ramadass contended that the scenario presented by the Prosecution was implausible. He pointed out that the entire exchange between him and Sgt Meena was conducted in Tamil, with Sgt Meena consistently referring to "drugs" as "bodei porul." Despite this, the third statement indicated that Ramadass responded using the English word "drugs" each time. The Court of Appeal agreed with Ramadass and found that significant doubts had been raised about the accuracy of the third statement. This skepticism further undermined the reliability of the evidence against Ramadass, contributing to the Court's overall concerns about the validity of the statements used to convict him.

(f)     In Raj Kumar, the Court of Appeal expressed serious concerns about the reliability of the statements recorded by Sgt Meena. The Court noted the "inability of Sgt Meena to explain or address these concerns," which led them to conclude that there was "sufficient doubt as to whether the written record of the statements accurately record and reflect what was said by Ramadass." In its closing observations, the Court of Appeal emphasized the critical importance of accuracy when a case against an accused person hinges on the specific words recorded in a statement, stating that: “Where the case against an accused person turns on the specific words that are reflected in a statement, as is the case here, it is critically important that the court be satisfied as to the accuracy of the statement …” This emphasis underscores the Court's insistence that the reliability of recorded statements must be beyond doubt, especially when those statements form the cornerstone of the prosecution's case. The Court's findings in Raj Kumar highlighted the importance of meticulous and accurate record-keeping by law enforcement officers to ensure the integrity of the judicial process. (emphasis in bold mine)

30     In the present case, the Prosecution’s case primarily rests on the admissions in the incriminating second statement of Pay and the incriminating first statement of Pek to show that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC.[note: 62] The Defence contended that the aforesaid incriminating statements of Pay and Pek are inaccurate, unreliable and unsafe to rely on in the light of the above legal principles and cases governing unreliable statements. Having heard, read and reviewed the evidence and submissions of the parties, I rejected the Prosecution’s submissions[note: 63] and agreed with the Defence as follows:

(a)     In relation to Pay, based on the evidence of Pay and of the recorder of his second statement, IO Chris Lim as well as their respective explanations on the incriminating portions in the statement at the trial (evidence of which have been comprehensively set out in the Defence submissions[note: 64]), I accepted Pay’s submissions that Pay’s second statement as recorded by IO Chris Lim is inaccurate, unreliable and unsafe to rely on in determining the charges against Pay, due mainly to the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process as reflected in the evidence adduced at the trial and highlighted in Pay’s submissions. In the absence of any Prosecution's specific responses on the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process and the inability of IO Chris Lim and the Prosecution to explain or address the concerns over the aforesaid conduct, I found that there was sufficient doubt as to whether the second statement of Pay was accurately recorded and reflected what was said by Pay and I agreed with Pay's submissions in relation to how IO Chris Lim’s conduct rendered Pay’s second statement as recorded by him inaccurate, unreliable and unsafe to rely on in determining the charges against Pay for the reasons which have been summarized together with my views as follows:

(i)       During the trial, IO Chris Lim admitted that he approached the interview with a preconceived notion that Pay had committed some form of offence. However, when he realized that Pay's first CPIB statement did not clearly support this preconceived belief, he attempted to retreat from his earlier position. Despite this, IO Chris Lim acknowledged that there was nothing in Pay's first CPIB statement suggesting that gratification had been given by Pay in exchange for leniency on TSC's projects. Furthermore, he admitted that Pay’s first CPIB statement was "not good enough" to implicate Pay in a corruption offence.[note: 65] In my view, this scenario raises significant concerns about the reliability of Pay's second CPIB statement, particularly given IO Chris Lim's apparent predetermination of Pay's guilt before the statement was recorded.

(ii)       IO Chris Lim's credibility and the objectivity of his statement-taking process come into question due to his contradictory statements regarding the influence of a "hypothesis" provided by the CPIB. Initially, IO Chris Lim tried to distance himself from the idea that he had been provided with any hypothesis by the CPIB, asserting that no such hypothesis was communicated to him. This was likely an attempt to portray his approach to the interview with Pay as unbiased and objective. However, IO Chris Lim later contradicted this claim by admitting that he had indeed been given a hypothesis by a higher-up before he interviewed Pay. [note: 66] In my view, this contradiction undermines the notion of objectivity that IO Chris Lim initially tried to establish as it suggests that he might have approached the interview with a preconceived narrative or expectation, which could have influenced how he conducted the interview and how he interpreted Pay's responses. Further, this admission raises concerns about the reliability of the statement-taking process and whether IO Chris Lim's investigation was genuinely impartial.

(iii)       The testimony of IO Chris Lim reveals significant issues regarding his objectivity and the accuracy of his investigation into Pay's actions, particularly concerning the timing of the second loan. During the proceedings, IO Chris Lim admitted that if Pay had truly acted with ulterior guilty knowledge, it would not have made sense for him to delay the giving of the second loan. He acknowledged that the urgency with which the money was provided would be directly relevant to determining Pay's guilt for the corruption charges he faced. However, when questioned about the specifics in Pay's second CPIB statement, which indicated that Pay took a "couple of days" to extend the second loan to Foo, IO Chris Lim demonstrated that he did not actually know how long it took for Pay to provide the loan, despite previously insisting that he did. This lack of knowledge casts doubt on his earlier assertions and the thoroughness of his investigation. As the facts unfolded, it became clear that Pay had not provided the second loan to Foo even by 27 March 2018, which was well beyond the "couple of days" which IO Chris Lim had initially claimed. Upon realizing this, IO Chris Lim recanted his position, admitting that he should have clarified the timing of the loan more thoroughly. This admission further highlights the lack of objectivity in his investigative approach. Ironically, when asked again whether the timing of the loan was important, IO Chris Lim responded affirmatively, saying, "Oh, definitely."[note: 67] In my view, this response underscores the importance of the timing in assessing Pay's actions, yet it also highlights the inconsistency and lack of precision in IO Chris Lim's investigation. His failure to accurately ascertain and clarify such a critical detail raises serious concerns about the reliability of the evidence gathered and the overall objectivity of the investigation.

(iv)       IO Chris Lim's approach to potentially exculpatory facts further underscores his lack of objectivity in the investigation. When questioned about whether Pay had informed him that he "would not have given a loan for gambling debts, if it had been Foo’s... because his own brother-in-law had suffered much from gambling", IO Chris Lim responded that he "[did] not know" if Pay had made this statement. However, he did not deny the possibility that Pay might have told him this. This ambiguity is concerning, particularly because IO Chris Lim himself admitted that such a statement would have been relevant to understanding Pay's true motivations for giving the loans. If Pay had indeed made this remark, it could suggest that his actions were motivated by personal reasons unrelated to any corrupt intent, which would be crucial to assessing his culpability. IO Chris Lim’s failure to recall or properly document such a significant detail reflects a myopic approach to the investigation. By not adequately considering or recording facts that could potentially exonerate Pay, IO Chris Lim appears to have overlooked important context that might have altered the interpretation of Pay’s actions. This selective attention to facts that support a preconceived narrative, while neglecting those that might be in Pay’s favour, raises serious questions about the fairness and thoroughness of the investigation.[note: 68] In my view, such an approach not only undermines the reliability of the evidence collected but also casts doubt on the integrity of the investigative process, as it suggests that IO Chris Lim may have been biased toward confirming Pay's guilt rather than objectively assessing all relevant information.

(v)       IO Chris Lim's approach in how he dealt with Pay's suggested amendments raises serious concerns. According to Pay's testimony, the process he experienced with IO Tay, who recorded his first CPIB statement, was markedly different and more transparent than the process he went through with IO Chris Lim for the second statement. With IO Tay, Pay was invited to make amendments directly on his first CPIB statement, and IO Tay explained that Pay could sign next to these amendments, ensuring that the changes were clear and attributable to Pay. This approach promoted transparency and allowed Pay to verify that his amendments were accurately reflected. In contrast, IO Chris Lim handled Pay's amendments to the second CPIB statement in a much less transparent manner. When Pay marked up his second statement with the changes he intended to make, IO Chris Lim took the statement to another room, retyped it in his own words (which appears similar to PP v Dahalan bin Ladaewa where the recording officer had used words that were not uttered by the accused), and then returned it to Pay. IO Chris Lim claimed that this process was done for the sake of "neatness," and while there is no legal requirement for an IO to record a statement word-for-word as held in Leck Kim Koon v PP [2022] SGCA 42, it appears that this method was actually designed to confuse and disorient Pay. This practice of retyping the statement without allowing Pay to see how or where his amendments were incorporated raises significant concerns. Pay was left without any clear indication of how IO Chris Lim had integrated his changes, making it impossible for Pay to verify whether his amendments were accurately reflected. This lack of transparency could prevent Pay from identifying or distinguishing the changes he made from those made by IO Chris Lim. It also meant that any omissions or alterations by IO Chris Lim could later turn out to be consequential, without Pay having any opportunity to challenge or correct them.[note: 69] In my view, the overall picture suggests that IO Chris Lim's approach was not merely about "neatness" but was instead a deliberate attempt to obscure the process and potentially manipulate the content of the statement. This unscrupulous handling of Pay's second CPIB statement undermines the integrity of the evidence and raises serious questions about the fairness and reliability of the investigative process. It suggests that IO Chris Lim may have intentionally muddled Pay's understanding and control over his own statement, which could have significant implications for the accuracy of the recorded evidence and the outcome of the case.

(vi)       IO Chris Lim initially suggested that Pay had independently arrived at the phrase "more than friendly loans" without any prompting. However, he later admitted uncertainty about whether he confronted Pay with specific messages that led to this admission or if Pay came to this conclusion on his own. When pressed to identify the specific messages that may have prompted Pay to realize his position was unsustainable, IO Chris Lim could not point to any messages that Pay had not already explained in his first CPIB statement. The only exception was a conversation between Pay and Pek about a "tricky" second staff loan, which Pay had already clarified was innocuous. IO Chris Lim's claim that Pay used the exact phrase "more than friendly loans" is contradicted by his own testimony during his EIC, where he admitted that paragraph [32] of Pay's second CPIB statement was a paraphrase rather than a verbatim account of what Pay said. During cross-examination, it was suggested to IO Chris Lim that he had introduced the phrase "more than friendly loans" based on a misleading premise, that because the loans were substantial sums that would not typically be exchanged between friends, they must be considered "more than friendly". IO Chris Lim denied this suggestion but did not provide a satisfactory explanation to refute it.[note: 70] In my view, IO Chris Lim's evidence is inconsistent and possibly misleading with no concrete evidence to support his assertion that Pay independently described the loans as "more than friendly."

(vii)       IO Chris Lim demonstrated a lack of objectivity during the investigation, particularly in how he recorded Pay’s second CPIB statement. He had a "tunnel-vision" approach, focusing solely on evidence or aspects of the case that suggested Pay's guilt. He emphasized certain aspects of the case that he believed indicated there was “more than meets the eye,” implying that these aspects suggested Pay's guilt. However, at the same time, he ignored other critical elements of the investigation that could have potentially indicated Pay’s innocence. IO Chris Lim himself acknowledged there were aspects of the investigation that could have been significant in potentially relieving Pay of guilt, yet he chose not to consider them.[note: 71] In my view, IO Chris Lim’s conduct during the investigation, characterized by selective focus and a lack of impartiality, shows a clear lack of objectivity which could have affected the fairness and thoroughness of the investigation into Pay's case and undermines the integrity of the investigation process.

(viii)       IO Chris Lim had a "blatant disregard for the truth" when recording Pay's second CPIB statement. He provided false explanations to an exhausted Pay regarding the meaning of the words recorded in his statement. His approach was mischievous and conveniently selective as he selectively recorded only those parts of Pay's statements that could be construed as incriminating while ignoring or omitting exculpatory evidence. His actions appeared to be driven by a desire to secure a conviction "at all costs", regardless of the actual truth or fairness of the process, by engaging in underhanded practices, such as making "surreptitious or ambiguous amendments" to Pay’s statement in a manner that was difficult for Pay to notice or contest, especially after IO Chris Lim provided misleading explanations about any ambiguities in the statement. This could have created a situation where Pay unknowingly agreed to statements that were not fully accurate or reflective of his intended meaning.[note: 72] As held by the Court of Appeal in Chong Hoon Cheong v PP, if there is a reasonable doubt as to either what the accused person actually stated or what the accused person intended to mean when he made his statement, the Court should not place any weight on that statement, simply because it cannot be satisfied as to what was in fact said or meant. In this regard, I took into account that in Parti Liyani v PP, the High Court had overturned the accused’s conviction as it found that it was “unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33” due to the likelihood of inaccuracies brought about by the recording process.

(ix)       As pointed out by Pay’s counsel, the Prosecution's stance that the CPIB officers, IO Johnston Kan and IO Chris Lim, had no reason to frame Pay, and that their evidence should be given more weight than Pay’s is an oversimplification and an attempt to sidestep addressing the possibility that the CPIB officers as their witnesses may have been dishonest in their testimonies or biased in their investigation and court testimony. The Prosecution's stance overlooks a more nuanced understanding of the situation. The truth does not necessarily require that IO Johnston Kan and IO Chris Lim had a specific intention to frame Pay. Rather, the possibility exists that these officers, though not explicitly intending to frame Pay, were biased or, as the Court of Appeal in Kadar put it, "overzealous" in their investigation. This overzealousness could explain the officers' conduct without requiring a deliberate intent to frame anyone. IO Johnston Kan and IO Chris Lim could have developed a biased perspective during their investigation and formed a hypothesis that the loans indicated ill intent or wrongdoing, leading them to selectively interpret evidence or conduct the investigation in a manner that supported their preconceived notions.[note: 73]

(x)       As submitted by Pay’s counsel, the procedural safeguards were meaningless in the face of IO Chris Lim’s conduct based on his own evidence which unfortunately demonstrated him to be happy to stretch the truth and the Prosecution has offered no explanations for his conduct.[note: 74]

(b)     As mandated by the Court of Appeal in Kadar at [61] to [62], the Prosecution bears the burden of establishing that the probative value of Pay’s second CPIB statement outweighs its prejudicial effect and can discharge this burden by giving some reasonable explanations for the above concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process, but I found that the Prosecution has failed to do so as the Prosecution’s reply submissions at [26] to [44] as well as its oral submissions on 14 and 19 August 2024 did not specifically address the concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process.

(c)     Hence, I found that IO Chris Lim’s aforesaid conduct rendered Pay’s second CPIB statement inaccurate and unreliable as they are clearly incompatible with the “uncompromising need for accuracy and reliability” as mandated by the Court of Appeal in Kadar (at [60]) with many inconsistencies and ambiguities in the aforesaid statement relied upon in the Prosecution’s case, and it would be improper for this Court to resolve those doubts in the Prosecution’s favour, particularly in the absence of specific explanations from the Prosecution on IO Chris Lim’s aforesaid conduct in the statement recording process.

(d)     As regards Pek, based on the evidence of Pek and of the recorder of his first statement, IO Jeffrey as well as their respective explanations on the incriminating portions in the statement (evidence of which have been comprehensively set out in Pek’s submissions[note: 75]), I accepted Pek’s submissions that Pek’s statements, particularly his first Statement, as recorded by IO Jeffrey are inaccurate, unreliable and unsafe to rely on in determining the charges against Pek, due mainly to the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process as reflected in the evidence adduced at the trial and highlighted in Pek’s submissions.[note: 76] In the absence of any Prosecution's specific responses on the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process, and the inability of IO Jeffrey and the Prosecution to specifically explain or address the concerns over the aforesaid conduct, I found that there was sufficient doubt as to whether the Pek’s aforesaid statements were accurately recorded and reflected what was said by Pek and I agreed with Pek's submissions in relation to how IO Jeffrey’s conduct rendered Pek’s aforesaid statements as recorded by him inaccurate, unreliable and unsafe to rely on in determining the charges against Pek for the reasons which have been summarized together with my views as follows:

(i)       The first statement given by Pek, which was recorded by IO Jeffrey, contains several self-incriminating remarks that were repeated 4 times in the document. Such repetition is not a faithful representation of what Pek actually said during the interview but rather indicates an attempt to emphasize Pek's culpability. This is further supported by IO Jeffrey's admission under cross-examination that he used a cut-and-paste method to compile the statement, and it did not matter to him whether Pek in fact repeated himself in that manner, implying that the repetition might not reflect the true nature of Pek's interview responses.[note: 77] In my view, there would be no rational reason for Pek to incriminate himself multiple times in the same statement, reinforcing the idea that the statement lacks reliability.

(ii)       The reliability of Pek’s 13 November 2019 Letter is demonstrated by both its contents and the surrounding context in which it was created. The evidence provided by IO Jeffrey regarding the process of recording Pek’s first statement supports the truthfulness of Pek’s explanation in the 13 November 2019 Letter about how the misleading portions of Pek’s first statement arose. During cross-examination, IO Jeffrey admitted that he asked Pek numerous questions during the first interview and used a method of combining Pek’s answers to different questions into a single narrative. IO Jeffrey further acknowledged that in doing so, some of Pek’s responses were merged and repackaged in a way that omitted certain parts of what Pek actually said. In fact, IO Jeffrey conceded that this method specifically led to the recording of the second and third sentences of paragraphs [9] and [12] in Pek’s first statement as they appear, indicating that the recorded statement may not accurately reflect Pek's actual responses.[note: 78]

(iii)       Pek’s first statement appears to be more a product of IO Jeffrey's authorship than an accurate account of what Pek actually communicated. This is because IO Jeffrey took several liberties in constructing the statement. He substituted Pek's words as he deemed appropriate, rearranged the order of Pek's responses, combined and repackaged answers to separate questions, and chose to omit significant context that could have provided clarity to Pek's answers recorded in the statement. Furthermore, IO Jeffrey compounded these inaccuracies by copying and pasting sections of the statements that appeared to be more incriminating, thereby skewing the overall content to reflect a more incriminating narrative than what Pek might have actually conveyed.[note: 79] In my view, while there is no legal requirement for an IO to record a statement word-for-word as held in Leck Kim Koon v PP [2022] SGCA 42, the substitution of Pek’s words by IO Jeffrey appears similar to PP v Dahalan bin Ladaewa where the High Court noted that in “expanding” what was said by the accused, the recording officer had used words that were not uttered by the accused.

(iv)       IO Jeffrey confirmed twice during his testimony that he understood the meaning of the word "paint"—specifically, that it implied he had suggested a "wrong account" of what Pek had told him in the statement.[note: 80] In my view, this acknowledgment indicates that IO Jeffrey was aware that he was not providing an accurate or truthful representation of Pek’s words. Furthermore, it suggests that IO Jeffrey attempted to "frame" Pek by deliberately crafting the statement in a way that would present a false or misleading account of the events, casting further doubt on the reliability and integrity of Pek's first statement.

(v)       By IO Jeffrey's own admission, he drafted Pek’s first statement with the intention to "frame" Pek, focusing almost exclusively on recording information that supported Pek’s culpability rather than objectively establishing the facts of the case. IO Jeffrey crafted Pek’s first statement to create specific impressions about Pek, such as portraying him as the originator of a corrupt scheme. He selectively recorded details that would imply Pek's guilt, instead of providing a balanced and factual account. Additionally, IO Jeffrey's approach appears to have been aimed at influencing Pek’s memory of events, further undermining the reliability of Pek’s first statement as an accurate reflection of what was said during the interview.[note: 81]

(vi)       IO Jeffrey admitted in Court, during cross-examination, that he drafted key parts of Pek’s first statement, particularly the fourth sentence of paragraph [9], in a way that created the impression that Pek was the one who came up with the idea for the taking of Staff Loans. This admission indicates that IO Jeffrey intentionally worded portions of the statement to portray Pek as the initiator of the scheme, rather than accurately documenting what was actually communicated by Pek during the interview.[note: 82] In my view, this further calls into question the reliability and objectivity of Pek’s first statement.

(vii)       IO Jeffrey further conceded that, during the recording of Pek’s first statement, he had already predetermined that the Staff Loans were being used to conceal TSC’s involvement in the Loans to Foo. He admitted to drafting Pek’s first statement in a manner that suggested Pek had orchestrated this process.[note: 83] In my view, such an approach of IO Jeffrey in the statement recording raises serious doubts about the reliability of the statement.

(viii)       Pek’s first interview was conducted in a way that was intended to create a false sense of security for Pek, discouraging him from thoroughly reviewing his first statement. This approach affected Pek, leading him to rush through the review of his statement. Pek placed his trust in IO Jeffrey, relying on his perceived professionalism and assuming that the statement accurately reflected their conversation. As a result, Pek signed the statement without fully understanding its implications or realizing the potential personal repercussions.[note: 84] In my view, this further undermines the reliability of Pek's first statement, as it suggests Pek may not have been aware of the incriminating content or its consequences.

(ix)       IO Jeffrey testified that he took no notes during his interview of Pek prior to the formal recording of Pek’s first statement, despite this interview phase lasting several hours. According to IO Jeffrey’s evidence, at least five hours elapsed between the start of Pek’s first interview (around 9:30 am) and the beginning of the actual recording of Pek’s first statement (around 2:50 pm). Without any notes taken during the interview, IO Jeffrey later typed out Pek’s first statement on a laptop during the recording phase, relying solely on his memory of what was said. As Pek testified, IO Jeffrey drafted the statement from memory after 2 to 3 hours of conversation and asked only a few clarificatory questions while doing so. Indeed, IO Jeffrey admitted that when he drafted Pek’s first statement, he could not remember everything Pek said during the interview.[note: 85] In my view, this suggests that IO Jeffrey may have prioritized the CPIB’s needs over ensuring the accuracy of the statement as a faithful record of Pek's actual words during the interview. It is highly unlikely that anyone could accurately recall, without notes, everything said in an interview of several hours—along with the sequence of questions and answers—given the complexity and length of such a conversation. It would appear that IO Jeffrey’s conduct of not taking any notes is worse than that of the recording officer in PP v Dahalan bin Ladaewa where in interviewing the accused, the recording officer had made notes on a piece of paper and some four hours later, in writing up his pocket book, had “expanded” the notes and entered them into his pocket book and thereafter destroyed the paper.

(x)       Two significant weaknesses in the approach adopted by IO Jeffrey in recording a statement needed to be highlighted despite him been a trained law enforcement officer. The first point of failure is IO Jeffrey's dependence on his own memory to recall what Pek said during the interview. Memory can be fallible, especially over time or when dealing with multiple interviews and statements. This reliance increases the risk of errors or omissions in the recorded statement. The second point of failure is Pek's ability to comprehend the statement as recorded and to correct any inaccuracies. This assumes that Pek is fully aware of what was discussed, understands the statement's wording, and is capable of identifying and correcting mistakes. However, comprehension issues or stress during the interview can impact Pek’s ability to effectively review and correct the statement. A more effective and reliable method for ensuring the accuracy and comprehensiveness of the statement would have been for IO Jeffrey to take notes directly during the interview. This would allow for a more accurate capture of Pek's words and reduce reliance on memory. Even IO Jeffrey admitted that taking notes is generally expected when accuracy is a priority. However, IO Jeffrey's justification for not taking notes was simply that it was "not [his] practice." This is an insufficient explanation, as it does not address why this practice is in place, nor does it provide a rationale for deviating from what would be considered a more reliable method of documentation.[note: 86] In my view, the lack of a substantive explanation from IO Jeffrey raises concerns about the integrity and reliability of the statement-taking process as such important procedural questions cannot be dismissed with non-answers or unsubstantiated practices, as IO Jeffrey had done.

(xi)       The exchange during cross-examination reveals serious concerns about the methods used by IO Jeffrey in recording Pek's statement. Initially, IO Jeffrey testified that he believed it was acceptable to include inaccuracies in the statement, provided the subject had the opportunity to review and correct them. This approach fundamentally shifts the responsibility for ensuring the accuracy of the statement from the recording officer to the subject. Upon repeated questioning, IO Jeffrey changed his response, stating that it was important to record an accurate statement independently of the subject’s review. This sudden shift in his stance under cross-examination suggests either a lack of understanding of proper procedures or an attempt to avoid admitting to improper practices. Despite his altered testimony, the evidence points to the fact that IO Jeffrey's approach was heavily reliant on Pek to identify and correct inaccuracies, as he did not take any contemporaneous notes during a lengthy multi-hour interview. Moreover, IO Jeffrey admitted that he did not consider it important to capture the exact words used by Pek during the interview. Instead, he took the liberty of drafting Pek’s statement in his own words, introducing phrases such as “vividly remembered” that Pek neither understood nor used. This phrase, in particular, directly contradicted what Pek had actually said during the interview, further indicating a significant misrepresentation of Pek’s statements.[note: 87] In my view, this practice of drafting statements without directly quoting the subject or even accurately reflecting their testimony undermines the reliability and accuracy of the recorded statement. It shows a disregard for maintaining the integrity of the subject's words and intentions. The reliance on the subject to catch and correct such errors is not only an unfair burden but also a method that could lead to significant injustices, particularly if the subject does not fully understand the nuances of the language used or the implications of certain phrases.

(xii)       IO Jeffrey's decision to omit significant contextual information from Pek's first statement raises substantial concerns about the statement's accuracy and reliability. By leaving out the context that surrounded Pek's answers, IO Jeffrey effectively removed the framework necessary for an objective reader to fully understand what led to those answers.[note: 88] In my view, context is crucial in accurately conveying a person's statements, as it provides background, clarifies meaning and prevents misinterpretations. Without the surrounding circumstances, an objective reader is left without a clear understanding of the motivations, reasoning, or specific situations that prompted Pek's responses. This lack of context can lead to a distorted or misleading representation of what Pek actually meant or intended to convey during the interview.

(xiii)       The evidence presented in Pek’s submissions raises significant concerns that Pek’s first statement does not accurately reflect what Pek communicated during the interview and the Prosecution’s interpretation of Pek’s first statement appears to disregard Pek’s subjectively intended meaning, contrary to the guidance provided by the Court of Appeal in Chong Hoon Cheong v PP. [note: 89] The core issue lies in the manner in which IO Jeffrey, as the recording officer, documented Pek's first statement. The statement contained numerous inaccuracies that stem from IO Jeffrey’s own phrasing and embellishments which are significant because they alter the true meaning of what Pek intended to convey. Simply allowing Pek the opportunity to review and sign the statement does not automatically render the document accurate or reliable, particularly when the discrepancies are interwoven with the recording officer's wording choices, which Pek may not have fully understood or noticed. Pek’s failure to detect and correct these inaccuracies highlights the problematic nature of relying solely on the subject's review to ensure the accuracy of a statement. [note: 90] In my view, it is not enough to presume reliability based on the fact that an accused person reviewed and signed the statement, especially when the accused may not have been fully aware of the nuanced changes or errors introduced by the recording officer. This is particularly pertinent in cases where the subject may be under stress, confused by complex or unfamiliar language, or otherwise disadvantaged in identifying and correcting inaccuracies. Therefore, I found that Pek’s first CPIB statements, as drafted by IO Jeffrey, cannot be taken at face value as a reliable record of Pek’s testimony.

(xiv)       The probative value of Pek’s first CPIB statement is severely undermined by the way in which it was drafted. It appears that the statement was constructed primarily for prosecutorial convenience rather than as an accurate reflection of what Pek actually said. This issue is exacerbated by Pek’s trust in IO Jeffrey, whom he believed was recording his statements faithfully. During cross-examination, IO Jeffrey admitted that he attempted to “frame” Pek when drafting Pek’s first statement. This choice of words suggests an intention to portray Pek in a manner that could imply guilt rather than providing an impartial and objective account of the interview. Furthermore, IO Jeffrey’s approach included embellishing and inserting his own words into Pek’s statements, deviating from the actual language and context of Pek's responses. Instead of seeking to uncover the facts objectively, IO Jeffrey’s actions reveal a continued effort to highlight Pek’s culpability, even when drafting Pek’s second statement. This consistent focus on proving Pek’s guilt, rather than accurately recording the facts, demonstrates a bias that undermines the reliability and credibility of the statements. The evidence shows that factual accuracy was not IO Jeffrey’s priority; rather, his primary aim was to create material that would support a preconceived belief in Pek’s culpability.[note: 91] In my view, the deliberate framing and embellishment in the statements suggest that IO Jeffrey was more concerned with crafting a narrative that favoured the Prosecution's case.

(xv)       The issues that compromised the integrity of Pek’s first statement were also evident in the recording of Pek’s second statement. IO Jeffrey continued his practice of paraphrasing Pek’s words rather than accurately documenting what Pek said during the second interview. This paraphrasing reflects a continued lack of fidelity to Pek's actual words, which raises questions about the accuracy and reliability of the recorded statements. Moreover, IO Jeffrey took the questionable step of copying portions of Pek’s first statement into the second statement, even though Pek did not request or authorize this during the second interview.[note: 92] In my view, this act suggests a disregard for the unique context and content of each interview, as it introduces elements from a previous statement that may not be relevant or accurate in the context of the second interview. By doing so, IO Jeffrey effectively conflated the two statements, potentially creating a distorted account of Pek’s testimony.

(xvi)       As submitted by Pek’s counsel, the concerns articulated by the Court of Appeal in Kadar at [59] about the "real possibility" of an "overzealous police officer" compromising the integrity of a statement have manifested significantly in Pek’s case. The evidence indicates that IO Jeffrey, in his role as the investigating officer, exemplified the very conduct that the Court of Appeal warned against. IO Jeffrey's actions align closely with the concerns outlined in Kadar. He recorded Pek’s CPIB statements with "embellishments," adding his own carefully selected words to Pek’s account, rather than faithfully documenting what Pek actually stated. This selective phrasing suggests an intent to shape the narrative in a way that could imply Pek’s guilt, rather than objectively capturing Pek's statements as they were given. Furthermore, IO Jeffrey chose to delay the recording of Pek’s first statement until well after the initial examination. This delay in recording statements can introduce substantial risks of inaccuracy, especially when relying on memory. The lapse of time between the interview and the formal recording of the statement meant that IO Jeffrey’s recollection of the interview had likely faded. In such circumstances, he filled in the gaps based on his own perceptions and beliefs regarding Pek’s guilt, rather than on an accurate recollection of the facts as presented by Pek. The practice of embellishing statements, delaying their recording, and then reconstructing them from memory with added subjective interpretations raises serious questions about the reliability of the statements. IO Jeffrey’s approach appears to align more with a predetermined belief in Pek’s culpability rather than a neutral investigation into the facts. The “real possibility” of bias and manipulation in the statement-taking process, as warned by the Court of Appeal in Kadar, has thus been realized to an alarming degree in Pek’s case.[note: 93] In my view, IO Jeffrey’s conduct reflects an overzealous approach that compromised the integrity of Pek’s statements, further undermining their probative value.

(xvii)       Given the circumstances surrounding the recording of Pek’s CPIB statements by IO Jeffrey, it is evident that there can be "no assurance that the [CPIB] statement[s] faithfully reflected what [Pek] had actually disclosed" during the CPIB interviews. The concerns about the accuracy and reliability of these statements are substantial, especially when considering the various issues such as embellishments, paraphrasing, and the insertion of IO Jeffrey’s interpretations rather than Pek’s actual words. As pointed out by Pek’s counsel, the similarity between this case and the situation forewarned by the Court of Appeal in Kadar about the risks of overzealous officers compromising the integrity of statements appears to have materialized in the present case where the burden has unjustly shifted to Pek to “convince the court that he did not say what appears in writing to be his words.” This situation places an unfair and onerous responsibility on Pek to disprove the accuracy of statements that were not recorded in good faith or with the necessary attention to detail and truthfulness. This aligns with the Court of Appeal’s warning in Kadar at [59], where they cautioned against scenarios where the suspect must prove that the statement, as written, does not accurately reflect their actual disclosures.[note: 94]

(e)     As mandated by the Court of Appeal in Kadar at [61] to [62], the Prosecution bears the burden of establishing that the probative value of Pek’s CPIB statements, particularly his first statement, outweighs their prejudicial effect and can discharge this burden by giving some reasonable explanations for the above concerns raised by Pek over the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process, but I found that the Prosecution has failed to do so as the Prosecution’s reply submissions at [26] to [44] as well as its oral submissions on 14 and 19 August 2024 did not specifically address the concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process.

(f)     Hence, I found that IO Jeffrey’s aforesaid conduct rendered Pek’s CPIB statements, particularly his first statement, inaccurate and unreliable as they are clearly incompatible with the “uncompromising need for accuracy and reliability” as mandated by the Court of Appeal in Kadar (at [60]) with many inconsistencies and ambiguities in the aforesaid statement relied upon in the Prosecution’s case, and it would be improper for this Court to resolve those doubts in the Prosecution’s favour, particularly in the absence of specific explanations from the Prosecution on IO Jeffrey’s aforesaid conduct in the statement recording process.

31     For all the above reasons, I found that the second CPIB statement of Pay and Pek’s statements, particularly his first statement, are inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek in that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC.

(b)    Whether Foo’s evidence as the recipient on his own mens rea and the mens rea of Pay and Pek as the givers to the alleged corrupt transactions is relevant, and if so, whether the Prosecution is bound to accept his evidence as truthful, and whether his evidence is consistent with the evidence of Pay and Pek that the Loans were given innocently and not corruptly so as to prove that there is no corrupt element and no corrupt intention in the aforesaid transactions?

32     The key case authorities cited by Pek on whether the Prosecution is generally bound by the evidence of its own witnesses which comports with the Defence’s case are as follows:

(a)     In Baker, Samuel Cranage and another v SPH Interactive Pte Ltd [2022] SGHC 238 at [30] where the plaintiffs had subpoenaed a witness and never sought to impeach his evidence as hostile, the High Court held that the plaintiffs were bound to accept his evidence as truthful, as a party is generally required to accept the truthfulness of its own witness unless the witness is impeached in accordance with s 157 of the Evidence Act.

(b)     In CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2021] 4 SLR 883, the High Court noted that at common law, a party may not attack the credibility of its own witness, and explained the rationale (at [28]) as follows:

“This common law rule is given statutory expression in Section 156 of the Evidence Act (Cap 97, 1997 Rev Ed) (see PP v BAU [2016] 5 SLR 146 at [24]). The reason for the rule is that a party who calls a witness at trial is deemed to put the witness forward as a witness of truth. The party accordingly vouches to the court for the honesty of the witness (see Alexander v Gibson (1811) 2 Camp 555). A party cannot resile from this and discredit its own witness unless specific conditions are met. The rule places a salutary burden on a party to choose its witnesses carefully.” [Emphasis added.]

(c)     The application of the above legal principles to the Defence’s case that the Court should ascribe greater weight to the evidence of a Prosecution witness whose credit has not been impeached and whose evidence corroborates the Defence’s case can be seen in the High Court case of Chen Jian Wei v PP [2002] 1 SLR(R) 620 (“Chen Jian Wei”) relied upon by Pek[note: 95] where the accused was charged with rioting and his primary defence was that he was not an active participant in the assault. At his trial, the Prosecution called nine witnesses, but only one Kenny insisted that the accused was not an active assailant. The Defence only put the accused on the stand where he testified that he was not an active assailant. The Prosecution did not apply to impeach Kenny’s credit, but the trial judge held that Kenny had fabricated his evidence, and that the accused’s credit was impeached on the basis of material inconsistencies in his long statement and oral testimony, and he was therefore an active assailant and convicted him. On appeal, the trial judge’s decision was overturned by Yong CJ who emphasized that great weight should be given to Kenny's testimony since the Prosecution had not impeached his credit and the inconsistencies in the accused's long statement and oral testimony were not material enough to impeach his credit as the court must evaluate the evidence in its entirety, distinguishing between what aspects are true and what should be disregarded. Yong CJ found that certain aspects of the accused's testimony were consistent with the evidence of the Prosecution’s witnesses and the Court should attribute greater weight to the aspects of the Defence’s evidence that is consistent with the evidence of the Prosecution’s witness, and held that “the [accused] as well as Kenny provided firm exculpatory evidence that the [accused] was not involved in assaulting” the victim.

33     The key case authorities cited by the parties on the relevance of the mens rea of the recipient and giver in an alleged corrupt transaction are as follows:

(a)     In Abdul Aziz bin Mohamed Hanib v PP [2022] SGHC 101 at [118], the High Court stated as follows:

“….Where a charge is framed against the giver, it is the giver's intention that is crucial. Conversely, where a charge is framed against the recipient, it is the recipient's intention that is paramount…..Ultimately, the inquiry into whether the mens rea elements are satisfied hinges on whether the accused in question gave or received gratification as an inducement or reward knowing or believing it to be for a corrupt purpose (ie, with dishonesty). In order to evaluate this, the court may have regard to all the surrounding circumstances - for instance, evidence from the recipient - when determining the guilt of the giver, and vice versa……”(emphasis in bold added)

(b)     In Tey Tsun Hang v PP [2014] SGHC 39 at [15], the High Court stated as follows:

“15     Where a charge is made against the recipient, the question is also whether the recipient possessed a criminal intent, also known as the mens rea. The second to fourth elements set out at [12] concern the mens rea. In this respect, the intention of the recipient is paramount: see Yuen Chun Yii v PP [1997] 2 SLR(R) 209 (“Yuen Chun Yii”) at [69]–[70]. However, evidentially, the intention of the giver is also important as it sheds light on the recipient’s mens rea. Thus, the context of the gift is important. In Yuen Chun Yii, the court found that the nature of the relationship between the recipient and the giver, as well as the apparent intention of the giver, was part of the context which allowed it to make a finding that the recipient could not have had the necessary mens rea.” (emphasis in bold added)

(c)     In PP v Leng Kah Poh [2014] SGCA 51 at [24], the Court of Appeal stated as follows:

“24    Taking the cases and authorities cited above together, the paradigm of corruption under s 6(a) brings to fore the characterisation of the gift as being intrinsically tied to the third party’s intention of giving the gift for the purpose of obtaining a benefit conferred by the agent at the expense of the principal’s interest. In the prosecution of the agent under s 6(a), the intention of the third party would inform the presence of an objective corrupt element in the transaction and the agent’s subjective guilty knowledge. The third party’s intention, or ulterior motive, is to be considered not only from the third party’s point of view but also from the agent’s (see Chan Wing Seng at [41] in relation to the third party; and Yuen Chun Yii at [93] in relation to the agent).

34     Having regard to the above case authorities that the Prosecution is generally bound to accept as truthful the evidence of its own witnesses which comports with the Defence’s case, and on the relevance of the mens rea of the recipient and giver in a corrupt transaction, on both of which there were no contrary authorities cited and submissions made by the Prosecution, I agreed with Pek’s submissions[note: 96] that having chosen not to impeach Foo, the Prosecution is bound to accept the truthfulness of Foo’s evidence which has not been contradicted by other evidence.

35     I accepted the Defence’s reliance on Foo’s testimony which accords with the evidence of Pay and Pek[note: 97] that the Loans were given innocently and not corruptly. Based on Foo’s evidence regarding the Loans he received from Pay as highlighted in Pek’ submissions[note: 98], Foo consistently maintained that he had no corrupt intent when he requested and received the Loans and did not believe Pay or Pek had any corrupt intent either. Foo testified that there was no expectation of favours in exchange for the Loans, which were extended purely on the basis of friendship. Throughout the trial, Foo emphasized that he never viewed the Loans as bribes, nor did he believe Pay expected any favours or benefits in return. According to Foo, at no point did Pay request any favours, and Foo did not believe that Pay or Pek acted corruptly in relation to the Loans. Foo had even clearly and specifically testified that unlike Pay and Pek, in some or possibly one of the four groups of co-accused who lent money to him, they expected Foo to give them information when they asked him, and Foo also never even felt that those meals and karaoke sessions which he attended so infrequently, as compared to the very frequent invitations, were modes of Pay and Pek trying to groom him, as contended by the Prosecution. Foo stated that he was not saying this because Pay and Pek were his friends, but because of how he had seen, before he was arrested, the different behaviours of those co-accused who lent money to him and expected Foo to give them information when they asked him, unlike Pay and Pek. As pointed out by Pek’s counsel, Foo was completely unequivocal about the innocence of Pay and Pek based on his aforesaid testimony.

36     I agreed with Pek’s submissions that Foo’s aforesaid evidence is thoroughly consistent with the Defence’s case and the evidence of Pay and Pek that the Loans were given innocently and not corruptly as highlighted in Pek’s submissions[note: 99] as follows:

(a)     Pay testified that the Loans were extended as personal loans, intended to help Foo as a friend and out of goodwill, rather than to benefit TSC. Pek similarly testified that he did not lend money to Foo with the intention of benefiting TSC. He was clear that TSC was not the ultimate beneficiary of the Loans, and TSC did not provide any loans to Foo.

(b)     Pay testified that he never offered or promised any benefits to Foo in exchange for Foo showing favour to him or TSC. He emphasized that he did not ask for any favours from Foo in return for the Loans and did not believe that Foo would feel indebted to him because of the Loans. Pay also confirmed that Foo did not give or attempt to give him any favours. Pek testified that he did not perceive Pay as wanting any favour from Foo and was "quite sure" that Pay had no intention of obtaining any benefits from Foo.

(c)     Pek testified that he never suggested or implied to Pay that Foo should be "groomed" to act in favour of TSC’s benefit. Pek was clear that he had no intention of obtaining any benefits from Foo. He also testified that the idea of "grooming" Foo for either his own or TSC's benefit never crossed his mind, and he did not believe that Pay had any such intention either.

(d)     Pay testified that he had no corrupt intent in extending the Loans to Foo. Similarly, Pek testified that he did not intend for the two Staff Loans to be used as a means to induce Foo to advance TSC's business interests. Pek also made it clear that he did not intend to help Pay bribe Foo in any way.

37     I agreed with Pek’s submissions[note: 100] that Foo’s aforesaid evidence undermines the Prosecution’s case, but the Prosecution failed to impeach Foo or challenge his credibility as it was never put to Foo that he was being untruthful or even difficult with the Prosecution on this key issue of his own mens rea as well as the mens rea of Pay and Pek. Applying the above legal principles that the Court should ascribe greater weight to the evidence of a Prosecution witness whose credit has not been impeached and whose evidence corroborates the Defence’s case, I accepted Pek’s submissions[note: 101] that this Court should ascribe greater weight to Foo’s evidence where it cogently and consistently accords with the Defence’s case that the Loans were given innocently and not corruptly.

38     After careful consideration of the above evidence given by Foo, Pay and Pek as highlighted by Pek based on the evidence adduced at the trial and to which there were no contrary specific submissions from the Prosecution, I agreed with Pek’s submissions[note: 102] that Foo, Pay and Pek all gave consistent evidence that there was no quid pro quo, corrupt intent, or dishonest advantage associated with the Loans. This lack of a corrupt element undermined the Prosecution's case against Pay and Pek. As the recipient of the alleged bribes, Foo testified that there was no quid pro quo, which was a crucial point, given that the Prosecution called him as its key witness. This testimony made it difficult for the Prosecution to maintain its charges against Pay and Pek. Foo was unaware of TSC’s involvement in the provision of the Staff Loans until after his arrest, which occurred more than a year after he received the Loans. This fact supported Pay’s testimony that he did not inform Foo about borrowing the Staff Loans from TSC to help Foo. Pek testified that it did not matter to him whether Foo knew about his approval of the Staff Loans. Additionally, Pek and Foo had only a professional relationship, with minimal social interaction, further supporting the absence of any corrupt intent or personal gain. Both Foo and Pek testified that the idea of any bribery was unthinkable. Foo believed that Pek would never agree to giving him a bribe, and Pek confirmed that if he had been approached for a bribe, he would have rejected it and informed the relevant authorities. Hence, the Prosecution’s case could not be sustained due to the consistent evidence of Foo, Pay and Pek showing no corrupt intent, quid pro quo, or dishonest advantage connected to the Loans.

39     I disagreed with the Prosecution's arguments[note: 103] that Foo's admission of feeling "corrupted" and his guilty plea should be interpreted as an acceptance of his own corrupt intention and a belief that Pay or Pek were corrupt. I agreed with Pek's submissions[note: 104] that Foo's statement about feeling "corrupted" should be understood within the full context of his testimony. Foo's admission was based on his current understanding of the law, not necessarily an acknowledgment of his own corrupt intent or that of Pay or Pek. Foo's guilty plea was not an acceptance of corruption but a pragmatic decision to "cut short the pain." Foo testified that he made the plea to avoid further distress, rather than out of an acknowledgment of corrupt behaviour. This suggests that Foo’s guilty plea was a strategic choice rather than a reflection of actual guilt or acknowledgment of corruption. Given that Foo’s guilty plea was driven by pragmatic reasons rather than an acceptance of corruption, his testimony that corroborates the Defence's case should not be discounted. Overall, I took the view that Foo’s guilty plea and his comments about feeling “corrupted” did not negate the validity of his evidence that supported the Defence’s case.

40     As regards Foo’s evidence on the source of the 2 loans that the approach and the intention behind these two sources of the loan would have been very different, a closer examination of his evidence (referred to and relied upon by the Prosecution) as a whole showed that Foo testified clearly that he had asked Pay for a personal loan as he believed Pay was well to do and had the capacity to lend money to him from his own pocket and did not ask Pay for TSC’s help for his financial problem which would give the impression that he would give something back to TSC and which he did not mean at all. Hence, Foo’s aforesaid evidence does not assist the Prosecution’s case, as contended by the Prosecution.[note: 105]

41     I rejected the Prosecution’s submissions[note: 106] that there was no genuine friendship between Pay and Pek to warrant the 2 loans from Pay to Foo as this was contrary to the consistent evidence of Pay and Foo that the Loans were extended by Pay purely on the basis of friendship and Foo’s evidence which is consistent with Pay’s evidence must be accepted by the Prosecution as truthful without the Prosecution’s impeachment of Foo on this issue.

42     I disagreed with the Prosecution’s submissions[note: 107] that the evidence showed that Foo’s agency relationship with LTA had undeniably been suborned and Foo thought Pay wanted some quid pro quo for his Loans based on a selective passage from Foo’s evidence relied upon by the Prosecution that “there are times where the loan did feature at the back of my head”. In my view, a closer examination of these aspects of Foo’s testimony[note: 108] as a whole showed that Foo had clarified that almost all the information that Pay had asked of Foo would have been known to Pay in time to come and while his friendship with Pay certainly has a part to play as he got help from Pay, the information Foo gave to Pay was still within Foo’s tolerable limits of not going overboard in terms of compromising his own morals or financially against LTA. Foo further testified that Pay never said anything to Foo that gave him the idea that Pay was expecting special favours and benefits, but because Pay was his friend who had helped him, Foo had unilaterally did certain things for him within tolerable limits. Moreover, the loans Foo took from Pay did not have any impact on Foo’s work for the LTA as Foo had testified that he never suggested to Pay that if Pay lent him money, he would help Pay in his work for TSC and he never told Pay in any way that if Pay did not lend him money, he would create trouble for TSC. As Foo was completely unequivocal about the innocence of Pay and Pek, I found that there is no basis for the Prosecution’s case that Foo’s agency relationship with LTA had undeniably been suborned and Foo thought Pay wanted some quid pro quo for his Loans. In my view, any unilateral release of information by Foo to Pay which Foo himself believed was within tolerable limits, but contended by the Prosecution[note: 109] to be in breach of LTA’s policies (e.g. by providing information that had not been cleared, or providing information outside of LTA’s official channels, which had potential to cause reputational damage to LTA) should be a matter for LTA internal disciplinary action against Foo, or even possible prosecution by the Public Prosecutor against Foo for violation of the Official Secrets Act[note: 110] 1935 since Pay cannot control Foo’s aforesaid unilateral beliefs and actions.

43     For all the above reasons, I rejected the Prosecution’s submissions[note: 111] that Foo’s evidence on the mens rea of Pay and Pek is purely speculative and does not mean the Loans were not corrupt from Pay and Pek’s perspective as what is in issue here is Pay and Pek’s mens rea, not Foo’s, which can be ascertained primarily from their admissions in their incriminating CPIB statements wherein both agreed to Foo’s loan requests because they were afraid that he might cause TSC problems otherwise. Further, I have found the aforesaid incriminating CPIB statements to be inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek. I also found that Foo’s evidence as the recipient on his own mens rea and the mens rea of Pay and Pek as the givers to the alleged corrupt transactions is relevant and must be accepted as truthful by the Prosecution which did not impeach him, and Foo’s evidence is consistent with the evidence of Pay and Pek that the Loans were given innocently and not corruptly so as to prove that there is no corrupt element and no corrupt intention in the aforesaid transactions.

(c)    Whether the selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution showed that Foo’s agency relationship with LTA had been suborned and proved Foo was beholden to or felt indebted to Pay for the Loans?

44     In my view, the Prosecution's reliance on Foo's WhatsApp message to Pay: “No worries. Anything I can help, I will. For you and Tiong Seng”, as evidence of Foo been beholden or indebted to Pay[note: 112] is misconceived. I agreed with Pay’s submissions[note: 113] that Pay is on trial, not Foo, and Pay has no control over Foo’s unprompted communications. Further, Foo admitted that the phrase “For you and Tiong Seng” might initially seem problematic but he could not recall exactly why he used it. After reflecting, Foo provided a reasonable explanation that his message likely referred to work-related matters or issues related to TSC because Pay had asked questions related to those topics. Foo was also not involved in J120, the project mentioned in the messages, and therefore could not have meant that he was willing to take steps to benefit TSC in relation to this project. Foo had clarified that the messages and any perceived sense of obligation were related to the existing friendship rather than any influence from the Loans. He emphasized that his willingness to share information was due to his friendship with Pay and not because of any moral compromise related to the Loans. Hence, I found that that Foo’s explanations and the context in which the messages were sent did not support the Prosecution’s claim that Foo was beholden to or felt indebted to Pay, especially when the Prosecution’s aforesaid claim is contrary to Foo’s unequivocal evidence on no corrupt intention on his part as well as that of Pay and Pek which must be accepted as truthful by the Prosecution which did not impeach Foo whose evidence is consistent with both Pay and Pek.

45     The Whatsapp message from Foo mentioning his inability to influence the outcome of the tender evaluation (i.e. “Bro, confidential info. Sorry I couldn’t influence enough when Tender Evaluation Comm presented to us in TSC w DCE as the chair”) was sent on 14 August 2019 and Pay had replied to Foo: “Thanks for the Infor..,,” As pointed out by Pay, TSC had by this time already been informed by LTA on 13 August 2019, that TSC had failed in its tender for T316. This timing suggests that Foo's message could not have had any impact on the outcome since the result was already known. Foo's message was unsolicited. Pay did not request Foo's help regarding the T316 tender evaluation, nor did he implicitly ask Foo to influence the outcome. Foo’s decision to send the message was a unilateral action on his part and of his own accord without any influence or request from Pay. Foo's testimony was unequivocal that Pay never asked him to help with the tender evaluation or to influence the outcome. Given these factors, the Prosecution’s reliance on Foo’s message to suggest that Foo was beholden to Pay[note: 114] was misplaced as the context and the fact that the message was unsolicited and sent after the tender result was known weakened the Prosecution’s arguments. In this regard, I agreed with Pay’s submissions[note: 115] and rejected the Prosecution’s suggestion[note: 116] that Pay's expression of thanks in response to the message from Foo indicated that Pay shared Foo's sentiments, and this should be used against Pay because Pay was never cross-examined by the Prosecution on the meaning of his messages and Pay had clarified during his EIC that his "Thanks for the Infor" response was an attempt to end an unexpected and unnecessary conversation from Foo, and was not an agreement with Foo's sentiments. Further, Pay often used the word "thanks" casually, even when he did not actually mean to express gratitude. In my view, the Prosecution’s aforesaid suggestions on Foo been beholden to Pay and that Pay shared Foo's sentiments is contrary to Foo’s unequivocal evidence on no corrupt intention on his part as well as that of Pay and Pek which must be accepted as truthful by the Prosecution which did not impeach Foo whose evidence is consistent with both Pay and Pek.

46     Along with the above Foo's WhatsApp message to Pay, Foo had sent Pay a photograph image of his work laptop screen on 14 August 2019. The image contained an internal document related to TSC’s performance in a tender. Based on the consistency of Pay’s evidence with the evidence of Foo and Lew who were Prosecution witnesses and whose respective credibility has not been impeached which meant that the Prosecution is bound to accept as truthful the evidence of Foo and Lew, I accepted Pay’s submissions[note: 117] that by the time Foo sent this image, TSC had already been officially informed by LTA on 13 August 2019 that it had failed in its tender for T316. Therefore, the information Foo shared was not confidential at that point. Foo was not providing Pay with any advance notice or unauthorized information. TSC had already been informed of its failed bid through official channels. Pay testified that the image provided no valuable or new information to him. The content of the image was essentially what TSC would have learned through the standard debriefing process offered by LTA. There was no evidence to suggest that Pay had requested Foo to send this image or transmit the information in any way that bypassed usual protocols. Any contractor who failed a tender could request a debrief from LTA, where they would receive a detailed explanation of why their tender was unsuccessful. The information in the image was simply a part of what would have been discussed during such a debrief. Foo had explained that the document in the image was the same one he would use during the debrief to explain TSC’s shortcomings. Thus, the image contained no more information than what would be officially provided during a debrief. Lew had also confirmed that the information in the image was what TSC would have received during the debrief session. Furthermore, TSC had already requested a debrief from LTA, which was scheduled before Foo sent the image to Pay. Hence, Foo’s transmission of the image did not constitute a breach of confidentiality or any improper action. The information shared was not sensitive or valuable by the time it was sent, and Pay had not solicited this information in any inappropriate manner. In my view, the Prosecution's suggestion that the transmission of this image was improper or indicative of a corrupt relationship was unfounded as the evidence from the testimonies of Pay, Foo and Lew showed that the information was routine and would have been provided to TSC through standard procedures. Further, as stated earlier, any unilateral release of information by Foo to Pay which as contended by the Prosecution was in breach of LTA’s policies (e.g. by providing information that had not been cleared, or providing information outside of LTA’s official channels, which had potential to cause reputational damage to LTA) should be a matter for LTA internal disciplinary action against Foo, or even possible prosecution by the Public Prosecutor against Foo for violation of the Official Secrets Act 1935 since Pay cannot control Foo’s unilateral action.

47     I see no merit in the Prosecution’s reliance on following Whatsapp messages[note: 118] between Pay and Foo to show that Foo was beholden or indebted to Pay for the reasons submitted by Pay which have been summarized together with my views as follows:

(a)     On 3 January 2018, Pay asked Foo via Whatsapp whether TSC prequalified for certain projects, specifically “second preq for NSC… N108, N110 and N111.” I accepted Pay’s submissions[note: 119] that there was no connection between the loan Pay made and the alleged favour he sought from Foo. This alleged favour Pay sought on 3 January 2018 was six months after the first loan Pay made and this temporal gap showed that the loan and alleged favour were not linked, undermining any suggestion of a corrupt relationship. As for the Prosecution’s reliance on isolated excerpts from Foo's testimony, focusing on Foo's internal thoughts about how he felt after receiving the loans, Pay had rightly pointed out that these feelings were never put to Pay and therefore could not be relevant to determining Pay's guilt, and there was no evidence showing Pay harboured any corrupt intent. Foo’s own testimony, in which he described Pay as someone who would not take advantage of him or seek corrupt favours, was significant and supportive of Pay’s innocence, and must be accepted as truthful by the Prosecution which has not impeached Foo on this issue.

(b)     On 19 February 2019, Pay asked Foo via Whatsapp for the name of the person in charge of the "LTA HQ redevelopment, project J120." I agreed with Pay’s submissions[note: 120] that Foo was not involved in the J120 project, and Pay’s request for the contact information was innocuous and did not offer any advantage to Pay or TSC over other contractors as the request was presented as a normal inquiry, similar to questions other contractors might ask the LTA. At the trial, Foo appeared perplexed when the Prosecution implied that Pay’s question was inappropriate as Foo saw nothing wrong with Pay's request, viewing it as a standard query that would not give Pay or TSC an unfair advantage. Pay also found nothing improper in his message, considering it a normal thing as the information he requested (the contact person for project J120) was something LTA typically makes publicly available. During questioning, the Prosecution suggested that Pay's inquiry was improper and Pay was confused by this suggestion, as he saw the question as entirely legitimate and normal. Foo’s evidence is consistent with Pay’s evidence and the Prosecution which did not impeach Foo is bound to accept Foo’s evidence as truthful. Further, this alleged favour Pay sought on 19 February 2019 was almost a year after the second loan was made and this temporal gap showed that the loan and alleged favour were not linked, undermining any suggestion of a corrupt relationship.

(c)     On 1 June 2019, Pay messaged and queried Foo via Whatsapp on TSC’s chances for the T316 LTA contract. I accepted Pay’s submissions[note: 121], inter alia, that Pay’s question was neither uncommon nor unusual. Foo testified that such inquiries were "absolutely common," indicating that contractors often asked similar questions of high-ranking officials at LTA, including the Deputy Chief Executive. Lew also confirmed during the trial that it was commonplace for contractors to ask such questions. Pay clarified that his questions to Foo were general and not intended to extract specific or confidential information as he understood the limitations imposed by LTA’s strict protocols and that he never sought information he was not supposed to know. Pay also stated that he was unaware of Foo’s specific role or authority regarding the T316 project, reinforcing the idea that his inquiry was innocuous and the responses from Foo did not involve seeking or obtaining any improper advantage. Pay’s evidence is consistent with the evidence of Foo and Lew which the Prosecution must accept as truthful without impeaching Foo and Lew.

(d)     On 2 September 2019, Pay messaged Foo via Whatsapp asking about TSC’s chances in the tender for the J101 project, which involved the design and construction of the Tengah Depot for the Jurong Region Line. I agreed with Pay’s submissions[note: 122] that Pay admitted in his first CPIB statement and during the trial that his question stemmed from personal curiosity. He emphasized that this was a common practice and not an attempt to gain an unfair advantage. Pay’s query was neither uncommon nor inappropriate, as similar questions were regularly asked of LTA officials, including the Deputy Chief Executive. Foo and Lew both confirmed that contractors frequently inquired about the status of pending tenders. Pay knew that Foo was not involved in the J101 project, which was confirmed by Foo's testimony. Therefore, Pay’s question was purely out of inquisitiveness, not because he was seeking to influence the outcome. Pay’s close friendship with Foo created a sense of familiarity, making such questions more likely to be casual and informal, rather than part of any corrupt arrangement. On the same day, 2 September 2019, TSC received an email from LTA inviting them to a tender interview on 6 September 2019. This invitation, along with the Tender Clarification Questions (TCQs), indicated that TSC-Lotte JV was already considered a strong candidate for the project. Foo’s response to Pay, indicating that TSC-Lotte JV had a "good chance," did not reveal any confidential information, as Pay would have already inferred this from the LTA’s invitation. Despite Lew’s initial concerns that knowing they had a “good chance” might make contractors difficult during the clarification process, it was shown that TSC-Lotte JV was fully compliant and cooperative with LTA’s requests. If Pay had any corrupt understanding with Foo, he would have asked for more substantial information or favours, rather than simply confirming a situation that was already apparent. The message was more reflective of Pay’s natural impatience and curiosity, rather than any corrupt intent. Hence, I found that Pay’s inquiry was a routine and innocuous question, motivated by personal curiosity rather than any expectation of a corrupt advantage as the evidence of Pay, Foo and Lew did not support the Prosecution’s implication that the messages were indicative of any wrongdoing. Pay’s evidence was consistent with the evidence of Foo and Lew which the Prosecution must accept as truthful without impeaching Foo and Lew.

(e)     The Prosecution had argued that Foo’s use of the term “we” in his Whatsapp message to Pay that:“We should have arranged for Lotte to meet us earlier” suggested that Foo had been “captured”. I accepted Pay’s submissions[note: 123] that this interpretation was never directly put to Foo during the trial for Foo to explain what he meant by "we" in this context. When this argument was presented to Pay, he disagreed with the Prosecution's reading of Foo’s message. Pay clarified that the term “we” referred to LTA rather than TSC, and that it was common for LTA to meet with foreign contractors, like Lotte, who were new to Singapore as part of LTA’s standard practice to understand the contractors before they submit a tender. Pay also denied the Prosecution’s suggestion that it did not matter whether “we” referred to LTA or TSC because it would have still benefited TSC’s bid as the context of the message was about LTA's practices, not any collusion or inappropriate behaviour. Hence, I rejected the Prosecution’s aforesaid argument as it was refuted by Pay and not supported by Foo’s own testimony since Foo was not asked by the Prosecution during the trial to explain what he meant by "we" in the context of his above Whatsapp message to Pay.

48     For all the above reasons, I took the view that the above selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution did not show that Foo’s agency relationship with LTA had been suborned and failed to prove that Foo was beholden to or felt indebted to Pay for the Loans.

(F)   CONCLUSION

49     In the light of my decisions on the above 3 key issues arising from the trial, I found that the Prosecution has failed to prove its case against Pay and Pek beyond a reasonable doubt that :

(a)     the Loans given to Foo were given corruptly with a corrupt element and corrupt intention in the transactions involving Pay, Pek and Foo, as the Prosecution cannot rely on the respective inaccurate and unreliable incriminating CPIB statements of Pay and Pek to prove its case and is bound to accept as truthful Foo’s evidence on his own men rea and the mens rea of Pay and Pek which was consistent with the evidence of Pay and Pek that the Loans were given innocently; and

(b)     the selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution did not show that Foo’s agency relationship with LTA had been suborned and failed to prove that Foo was beholden to or felt indebted to Pay for the Loans.

50     As I took the view that my decisions on the above 3 key issues arising from the trial were sufficient for me to find that the Prosecution has failed to prove its case against Pay and Pek beyond a reasonable doubt, it was unnecessary for me to decide on other issues arising from the trial, such as whether there is objective evidence to corroborate the Prosecution’s case that the reason behind the Loans was corrupt, or show that the Loans to Foo were intended to advance TSC’s interests[note: 124], as well as various other disputed issues of law and facts as framed by Pek’s counsel.[note: 125]

51     Accordingly, pursuant to s 230(1)(w) CPC, I found Pay and Pek not guilty and ordered a discharge amounting to an acquittal for all their respective charges together with an order for their release forthwith.

[note: 1]Section 6(b) states: If — (b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; … he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

[note: 2]Section 7 states: A person convicted of an offence under section 5 or 6 shall, where the matter or transaction in relation to which the offence was committed was a contract or a proposal for a contract with the Government or any department thereof or with any public body or a subcontract to execute any work comprised in such a contract, be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 7 years or to both.

[note: 3]

[note: 4]Section 29(a) states: Whoever abets, within the meaning of the Penal Code — (a) the commission of an offence under this Act; … shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

[note: 5]PS1

[note: 6]PS2

[note: 7]In addition to the oral submissions of all parties made before this Court on 20 October 2023, these submissions are: (a) submissions dated 29 May 2023 tendered by Pay (“Pay’s NCTA Submissions”) and Pek (“Pek’s NCTA Submissions”) (collectively, “Defence’s NCTA Submissions”); (b) reply submissions dated 14 July 2023 tendered by Pay Teow Heng (“Pay’s Reply Submissions”) and Pek Lian Guan (“Pek’s Reply Submissions”) (collectively, “Defence’s Reply Submissions”); (c) Prosecution’s submissions dated 30 June 2023 (“Prosecution’s Initial Reply”); and (d) Prosecution’s Further Reply submissions dated 4 September 2023 (“Prosecution’s Further Reply”)

[note: 8]As set out in the Prosecution’s Further Reply at para 39 and 40.

[note: 9]Pay’s NCTA Submissions at [248]-[305].

[note: 10]Pek’s NCTA Submissions at [260]-[263].

[note: 11]Pek’s NCTA Submissions at [256]-[264].

[note: 12]City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR(R) 733 at [23]; E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and ors [2012] 1 SLR 32 at [54],

[note: 13]Section 2 of the PCA expressly provides that for the purposes of the PCA, “gratification” includes any “loan”.

[note: 14]Pandiyan Thanaraju Rogers v PP [2001] 2 SLR(R) 217 (“Pandiyan”) at [43]; PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20].

[note: 15]NEs of 23 June 2022 (Day 12), p. 107:14-21.

[note: 16]Pandiyan at [42].

[note: 17]PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20].

[note: 18]Pay’s Reply Submissions at [111] and Pek’s Reply Submissions at [164] and [198]

[note: 19]Pay’s NCTA Submissions at [206], Pek’s NCTA Submissions at [117].

[note: 20]PP-25 at CC-65, Clause 67.2.1; NEs of 4 April 2023 (Day 20), p. 38:5-12; NEs of 4 April 2023 (Day 20), p. 43:1-16.

[note: 21]Pay’s NCTA Submissions at [71]-[73].

[note: 22]Pay’s NCTA Submissions at [72].

[note: 23]AB(P)-9 at p. 1041.

[note: 24]AB(P)-9 at p. 1040.

[note: 25]ASOF at [11]-[12].

[note: 26]Pay’s Reply Submissions at [17]-[21]

[note: 27]Pay’s Reply Submissions at [33]-[35]

[note: 28]AB(P)-15 at Q23 [Q1/A1].

[note: 29]Exhibit AB(1D)-5 at p. 1.

[note: 30]Pay’s Reply Submissions at [39]-[40].

[note: 31][156]-[166] of Pay’s NCTA Submissions.

[note: 32][161] of Pay’s NCTA Submissions.

[note: 33][162] of Pay’s NCTA Submissions.

[note: 34]Pay’s NCTA Submissions at [210]-[212].

[note: 35]Pay’s NCTA Submissions at [224]-[247].

[note: 36]PP v Tan Aik Heng [1995] 1 SLR(R) 710 (“Tan Aik Heng”) at [29].

[note: 37]Pek’s Reply Submissions at [21]-[23].

[note: 38]See, for illustration, the remarks of the Court of Appeal in Tan Aik Heng at [31].

[note: 39]Prosecution’s Initial Reply at [11(d)].

[note: 40]Chan Wing Cheong, ‘Criminal Law’, SAL Annual Review 2003 178 and Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Singapore (LexisNexis, 2022)

[note: 41]Hendricks Glen at [14].

[note: 42]Pek’s Reply Submissions at [52]-[54].

[note: 43]Section 8 of the PCA reads as follows:Presumption of corruption in certain cases8. Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.

[note: 44]Lai King Choon at [191].

[note: 45]Section 29 of the PCA reads as follows:Abetment of offences29. Whoever abets, within the meaning of the Penal Code 1871 —(a)the commission of an offence under this Act; or(b)the commission outside Singapore of any act, in relation to the affairs or business or on behalf of a principal residing in Singapore, which if committed in Singapore would be an offence under this Act, shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

[note: 46]See Baker, Samuel Cranage and another v SPH Interactive Pte Ltd [2022] SGHC 238 where the High Court held that a party is generally required to accept the truthfulness of its own witness unless the witness is impeached in accordance with s 157 of the Evidence Act. See also CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2020] SGHC 160 at [28].

[note: 47]In Kwang Boon Keong Peter v PP [1998] SGHC 144 at [18], CJ Yong Pung How in the context of discussing s 157 of the EA drew a distinction between credit and credibility as follows: “…Nokes, in the fourth edition of An Introduction to Evidence at pp 407–408, sought to define and distinguish between credit and credibility. The learned author stated that credit involves “antecedents, associates, character, impartiality and consistency” while credibility concerns the “opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers”. It can thus be deduced that the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity.”

[note: 48]Farida Begam d/o Mohd Artham v PP [2001] 3 SLR(R) 592 at [9].

[note: 49]See Ng Kwee Leong v PP [1998] SGHC 294 where the High Court held that the trial judge made no error of law in relying on the testimony of PW1 although he lied about the appellant attempting to assault him as the trial judge had given due consideration to PW1’s lie in assessing the credibility and veracity of his evidence.

[note: 50]as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20]).

[note: 51]AB(P)-19.

[note: 52]Pek’s Reply Submissions at [142].

[note: 53]Pek’s Reply Submissions at [202]

[note: 54]AB(P)-17.

[note: 55]NEs of 1 June 2022 (Day 1), pp. 77:1-78:15.

[note: 56]NEs of 1 June 2022 (Day 1), p. 81:2-13.

[note: 57]Pek’s Reply Submissions at [204].

[note: 58]Pek’s Reply Submissions at [207]

[note: 59]NEs of 21 June 2022 (Day 10), pp. 101:14-104:18.

[note: 60]Pek’s Reply Submissions at [218]-[219].

[note: 61]The following are the written and oral submissions of the parties at the close of trial: (a) Prosecution’s submissions at the close of trial dated 25 June 2024 (Prosecution’s closing submissions); (b)Prosecution’s reply dated 31 July 2024 (Prosecution’s reply submissions); (c) Closing submissions of the first accused dated 25 June 2024 (Pay’s closing submissions); (d) Reply submissions of the first accused dated 31 July 2024 (Pay’s reply submissions); (e) Pay Teow Heng’s Supplemental Closing Submissions dated 18 August 2024; (Pay’s supplemental closing submissions); (f) Closing submissions of the second accused dated 25 June 2024 (Pek’s closing submissions); (g) Reply submissions of the second accused dated 31 July 2024 (Pek’s reply submissions); (h) The NE transcripts of the oral submissions made by the Parties on 14 August 2024; and (i) The NE transcripts of the oral submissions made by the Parties on 19 August 2024.

[note: 62]Prosecution’s reply submissions at [5].

[note: 63]Prosecution’s reply submissions at [14] to [15] and [40] to [44].

[note: 64]Pay’s closing submissions at [598] to [706]; Pay’s reply submissions at [25] to [110]; and Pek’s closing submissions at [928] to [982].

[note: 65]Pay’s closing submissions at [616] to [618] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 66]Pay’s closing submissions at [619] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 67]Pay’s closing submissions at [622] to [627] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 68]Pay’s closing submissions at [628] to [629] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 69]Pay’s closing submissions at [630] to [634]. NE, Pay’s XX on 21 March 2024 at pp. 41 to 42; 7 March 2024 at pp. 119 and 130.

[note: 70]Pay’s closing submissions at [653] to [658] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 71]Pay’s closing submissions at [615] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 72]Pay’s closing submissions at [598] and [664].

[note: 73]Pay’s reply submissions at [60].

[note: 74]Pay’s reply submissions at [62].

[note: 75]Pek’s closing submissions at [493] to [770], Pek’s reply submissions at [28] to [92], [96] to[100], Pek’s oral submissions at pp. 68 to 118 of the NE transcript dated 19 August 2024.

[note: 76]Pek’s closing submissions at [497], [510] to [511], [515], [520], [588], [605], [622], [675] to [678], [680] to [681], [687]. [705] to [707] and [720]; Pek’s reply submissions at [40] to [41], [64]

[note: 77]Pek’s closing submissions at [515] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 78]Pek’s closing submissions at [520] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 79]Pek’s closing submissions at [687].

[note: 80]Pek’s closing submissions at [622].

[note: 81]Pek’s closing submissions at [588].

[note: 82]Pek’s closing submissions at [604] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 83]Pek’s closing submissions at [605] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 84]Pek’s closing submissions at [675].

[note: 85]Pek’s closing submissions at [676] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 86]Pek’s closing submissions at [678] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 87]Pek’s closing submissions at [680] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 88]Pek’s closing submissions at [705] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 89]Pek’s reply submissions at [40] to [41].

[note: 90]Pek’s reply submissions at [64].

[note: 91]Pek’s closing submissions at [497].

[note: 92]Pek’s closing submissions at [720].

[note: 93]Pek’s closing submissions at [510].

[note: 94]Pek’s closing submissions at [511].

[note: 95]Pek’s closing submissions at [220] to [222].

[note: 96]Pek’s closing submissions at [225].

[note: 97]As highlighted in Pek’s closing submissions at [239] to [242].

[note: 98]Pek’s closing submissions at [235] to [238] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 99]Pek’s closing submissions at [239] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 100]Pek’s closing submissions at [233].

[note: 101]Pek’s closing submissions at [234].

[note: 102]Pek’s closing submissions at [240] to [242].

[note: 103]Prosecution’s reply submissions at [171(c)].

[note: 104]Pek’s closing submissions at [249] to [251] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 105]Prosecution’s reply submissions at [170(b)].

[note: 106]Prosecution’s closing submissions at [107] to [116].

[note: 107]Prosecution’s reply submissions at [171].

[note: 108]NEs, Day 15 at pp. 5 to 10.

[note: 109]Prosecution’s closing submissions at [145(a)].

[note: 110]As reported in the Straits Times of 13 September 2024 at https://www.straitstimes.com/singapore/dsta-manager-allegedly-told-another-man-about-three-projects-both-charged-under-osa, a manager from the Defence Science and Technology Agency (DSTA) allegedly shared information on three projects related to tenders, bids and budgets involving works for a toilet and several buildings with an external party who had dealings with DSTA at the time, and both the giver and recipient of the information were charged under the Official Secrets Act.

[note: 111]Prosecution’s reply submissions at [170].

[note: 112]Prosecution’s reply submissions at [171(b)].

[note: 113]Pay’s closing submissions at [360] to [362] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 114]Prosecution’s reply submissions at [170(b)].

[note: 115]Pay’s reply submissions at [305] to [310] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 116]Prosecution’s closing submissions at [146].

[note: 117]Pay’s closing submissions at [419] to [428] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 118]Prosecution’s closing submissions at [143] to [144].

[note: 119]Pay’s reply submissions at [286] to [294] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 120]Pay’s reply submissions at [302] to [304] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 121]Pay’s closing submissions at [381] to [407] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 122]Pay’s closing submissions at [331] to [356] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 123]Pay’s reply submissions at [312] to [315] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 124]As raised in the Prosecution’s closing submissions at [70] to [98] and [141] to [148].

[note: 125]As stated in Pek’s reply submissions at Annex in [1], [7] and [49] to [78].

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Section 65(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed) – Driving without reasonable consideration causing grievous hurt"],"date":"2024-10-10","court":"District Court","case-number":"District Arrest Case No 912606 of 2023, Magistrate's Appeals No 9178 of 2024-01","title":"Public Prosecutor v Mark Robert Cox","citation":"[2024] SGDC 265","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32311-SSP.xml","counsel":["Tan Jing Min (Attorney-General's Chambers) for the Prosecution","Sunil Sudheesan and Joyce Khoo (Quahe Woo & Palmer LLC) for the Accused."],"timestamp":"2024-10-17T16:00:00Z[GMT]","coram":"Koo Zhi Xuan","html":"Public Prosecutor v Mark Robert Cox

Public Prosecutor v Mark Robert Cox
[2024] SGDC 265

Case Number:District Arrest Case No 912606 of 2023, Magistrate's Appeals No 9178 of 2024-01
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Koo Zhi Xuan
Counsel Name(s): Tan Jing Min (Attorney-General's Chambers) for the Prosecution; Sunil Sudheesan and Joyce Khoo (Quahe Woo & Palmer LLC) for the Accused.
Parties: Public Prosecutor — Mark Robert Cox

Criminal Procedure and Sentencing – Sentencing – Section 65(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed) – Driving without reasonable consideration causing grievous hurt

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9178/2024/01.]

10 October 2024

District Judge Koo Zhi Xuan:

1       Mark Robert Cox (“the Accused”) pleaded guilty to the following charge: on 25 June 2021 at or about 1.27 p.m., along Jalan Toa Payoh slip road into Pan Island Expressway (PIE), Singapore, the Accused did drive a motor lorry, GBF5782M (“the lorry”), on a road without reasonable consideration, to wit, by using the same lane to overtake from the right side of a motorcycle, FBH8221K (“the motorcycle”), which was travelling on lane 1 of a two-lane road, resulting in a collision with the motorcycle, which was travelling on the Accused’s left side, at the material time of accident, and grievous hurt was caused to the motorcycle rider, one Mr Liow (“the Victim”); and by such driving, the Accused has thereby committed an offence under Section 65(1)(b) and punishable under Section 65(3)(a) read with Section 65(6)(d) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”).

2       Having carefully considered the facts and parties’ submissions, I sentenced the Accused to 5 months’ and 2 weeks’ imprisonment, and disqualified him from holding or obtaining all classes of driving licences for a period of 5 years with effect from his date of release from prison (together with a prohibition under s 47F RTA from driving any motor vehicle in Singapore for the same period). The Prosecution, being dissatisfied with the sentence imposed, has filed a notice of appeal.

3       I now set out my grounds of decision, which incorporate the oral sentencing remarks I had delivered when sentencing the Accused on 12 September 2024.

The Facts

4       The Statement of Facts (“SOF”) which the Accused admitted to without qualification is reproduced below, together with screenshots of a witness’ in-car camera footage which was shown during court proceedings. The witness was driving behind the Victim at all material times.

5       The Accused is a 55-year-old male holding British nationality. He was the driver of the lorry at the time of accident. The Victim is a 72-year-old male, the rider of the motorcycle (he was 69 years old at the time of the accident).

6       On 25 June 2021 at or about 1.27 p.m., the Victim and the Accused were travelling in their respective vehicles along Jalan Toa Payoh towards Pan Island Expressway (PIE), which is a two-lane road. They were driving towards Tuas. Both the Victim and the Accused were initially on lane 2, which is the left lane, with the Accused’s lorry behind the Victim’s motorcycle. In that lane, the Victim left his right signal indicator on for more than 22 seconds.

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7       Before the Victim made a lane change, the Accused did so from lane 2 to lane 1. The Accused then accelerated in lane 1.

8       Subsequently, the Victim, with his right indicator light still signalling, checked for oncoming traffic to his right on lane 1 and changed from lane 2 to lane 1, in front of the Accused’s motor lorry:

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9       The Victim checked for oncoming traffic again and veered his motorcycle towards the right side of lane 1, towards the exit of the expressway on the right. At the same time, the Accused’s lorry began to overtake the Victim’s motorcycle from the right side of the Victim’s motorcycle, using the same lane:

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10     The Victim, whose right indicator light was still signalling while he was on the left side of the Accused’s lorry, continued to veer towards the right side of lane 1 towards the exit of the expressway on the right. The Accused swerved right to avoid colliding with the Victim’s motorcycle. Thereafter, the Accused drove back towards the left to keep driving on the expressway, cutting across the chevron marking as he did so. This resulted in a side-swipe between the Victim’s motorcycle and the left rear portion of the Accused’s lorry:

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11     The victim’s motorcycle tipped over and his body was dragged across the asphalt on the road before coming to a stop. The Accused then stopped his lorry to check on the Victim and assist with investigations.

12     At the time of accident, the weather was fine, the road surface was dry, traffic flow was heavy, and visibility was clear.

13     The Victim was conveyed to Tan Tock Seng Hospital (“TTSH”) where he was diagnosed with the following injuries:

(a)     skull fractures,

(b)     facial fractures,

(c)     bilateral temporal bone fracture,

(d)     right rib fractures,

(e)     left temporal lobe haemorrhagic contusion,

(f)     subarachnoid haemorrhage in the brain,

(g)     right optic nerve injury with permanent complete loss of vision in the right eye, and

(h)     multiple abrasions.

14     All of the Victim’s injuries were treated conservatively. The Victim was admitted to the hospital for 28 days between 25 June to 22 July 2021 before being discharged to TTSH Rehabilitation Centre. In total, the Victim was given 124 days of hospitalization leave from 25 June to 26 October 2021.

15     The Victim’s motorcycle sustained numerous scratches and dents on its right side. The Accused’s lorry sustained a scratch on its left rear bumper.

16     By overtaking the Victim’s motorcycle with his lorry using the same lane, the Accused drove without reasonable consideration for other persons on the road, and grievous hurt was caused to the Victim. The Accused has thus committed an offence under s 65(1)(b) and punishable under s 65(3)(a) read with s 65(6)(d) of the RTA.

Antecedents

17     The Accused is untraced.

Prosecution’s Address on Sentence

18     The Prosecution submitted for a sentence of 8 to 10 months’ imprisonment, with the mandatory minimum disqualification order (“DQ order”) of 5 years to take effect from the Accused’s date of release from prison.

19     Applying the High Court decision of Chen Song v Public Prosecutor and other appeals [2024] SGHC 129 (“Chen Song”), the Prosecution submitted that the present case was one involving “greater harm”, and the Accused’s culpability fell within the moderate end of “lower culpability”.

20     The Prosecution highlighted three primary harm factors:

(a)     First, the nature of the injuries was serious, as the Victim had suffered injuries at vulnerable parts of his body.

(b)     Second, the Victim’s injury was permanent, as he suffered a permanent complete loss of vision in the right eye.

(c)     Third, the impact of the injury was significant, as the victim was admitted to hospital for 28 days and given a long duration of hospitalisation leave, ie, 124 days. The Victim would also be permanently affected in his ability to carry out daily tasks and maintain his livelihood, as he had lost vision completely in his right eye.

21     As for the Accused’s culpability, the Prosecution submitted that he had cut across the chevron marking to avoid taking the exit off the expressway. In relation to the Victim leaving his right signal indicator on for 22 seconds before making a lane change, the Prosecution submitted that this had no bearing on the culpability of the Accused. This is because the Victim’s right signal indicator was still on after the lane change, and this should have given notice to the Accused that the Victim might be taking the exit on the right.

22     Given these factors, the Prosecution was of the view that the sentence to be imposed should fall within the high end of Band 2 of the sentencing framework set out in Chen Song at [134(b)], which has a sentencing range of 6 months’ to 1 year’s imprisonment. The indicative starting point sentence, in the Prosecution’s view, ought to be 10 to 12 months’ imprisonment. This is because there were three primary harm factors and one culpability factor identified.

23     At the next step, the Prosecution submitted that there were no offender-specific aggravating or mitigating factors to warrant a further adjustment to the starting point sentence, save for the Accused’s plea of guilt. The Prosecution had indicated that the case was ready for the plea to be taken on 28 November 2023, and the last day for the Defence to indicate a decision to plead guilty under stage 1 of the Sentencing Advisory Panel’s Guidelines for Reductions in Sentences for Guilty Pleas (“SAP Guidelines”) was therefore 20 February 2024. The Defence only formally indicated the Accused’s intention to plead guilty on 29 May 2024. As the Accused had indicated his plea of guilt at stage 2 of the SAP Guidelines, the Court should consider a maximum of 20% reduction in the Accused’s imprisonment sentence.

24     Applying this reduction to the indicative starting point sentence, the Prosecution submitted that the final sentence should be 8 to 10 months’ imprisonment, and a DQ order of 5 years.

Mitigation

25     The Defence submitted that a 3 months’ imprisonment sentence should be imposed, together with a DQ order of 5 years.

26     Applying Chen Song, the Defence submitted that the present case fell within the higher end of “lesser harm” and low end of “lower culpability”, and the indicative starting point should be within Band 1 of the Chen Song sentencing framework.

27     On the issue of harm, even though the Defence accepted the three harm factors highlighted by the Prosecution, the Defence submitted that the severity of the grievous hurt the Victim suffered was low considering that his injuries were treated conservatively. The Defence also highlighted that there was nothing to suggest that the Victim’s ability to carry out daily tasks or maintain his livelihood had been affected.

28     The Defence thus submitted that an imprisonment term of around 5 months would be an appropriate starting point.

29     The Defence then submitted that besides the Accused’s plea of guilt, mitigating weight ought to be given to the fact that the Victim had kept his right signal indicator on for more than 22 seconds without making any manoeuvre to the right, causing significant confusion to road users at the material time. Quoting from the “Riding Theory Booklet: Official Handbook” published by the Singapore Traffic Police on 22 October 2020 (“Riding Theory Booklet”) at paragraph 145, the Defence highlighted that the recommendation for riders is that they signal their intention of their manoeuvre at least 3 seconds in advance. The Victim should therefore not have kept his right signal indicator on for such a prolonged period of time, without making the lane change.

30     The Defence submitted that the Victim’s driving behaviour contributed to the misimpression that the Victim was not serious about changing lane or taking the exit on the right; and the accident occurred when the Accused tried to overtake the Victim from the right just as the Victim was veering further right to exit the expressway. The Defence submitted that this should factor into the Court’s consideration and calibration of the Accused’s culpability.

31     The Defence also submitted that the maximum reduction of 30% should still be made available to the Accused, even though it conceded that the Accused’s decision to plead guilty was only formally indicated at stage 2 of the SAP Guidelines. Defence Counsel explained that adjournments were sought because the Defence had tried to obtain an expert report on how the accident had occurred, as the Defence had thought that this could have a bearing on the assessment of the Accused’s culpability and whether a Newton hearing was necessary. Eventually, the Defence decided not to tender or use the expert report which was obtained. Defence Counsel also candidly acknowledged that it was a mistake on his part in not formally indicating earlier that the Accused was going to plead guilty, as opposed to doing so only after the expert report had been obtained.

32     Eventually, the Defence submitted that a downward adjustment to around 3 months’ imprisonment would be appropriate in the present case. The Defence pleaded for the Court to show mercy on the Accused, who had maintained an unblemished driving record in Singapore (for 8 years) prior to the accident and was very remorseful for having caused the accident. Because of this offence, the Defence submitted that the Accused and his family (comprising of the Accused’s wife and daughter) would likely have to leave Singapore as a result.

The Court’s Decision on Sentence

The prescribed punishment

33     Under s 65(3)(a) of the RTA, the Accused was liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years, or to both. He was also to be disqualified from holding or obtaining a driving licence for a period of not less than 5 years, under s 65(6)(d) of the RTA.

The applicable sentencing framework

34     The applicable sentencing framework for the offence the Accused had pleaded guilty to is found in the seminal High Court decision in Chen Song, where the High Court set out sentencing frameworks to be applied for offences punishable under section 65(3)(a) and section 65(4)(a) of the RTA.

35     Under the first step, the sentencing court is to identify the offence-specific harm and culpability factors.

36     Harm factors include primary and secondary harm factors. Primary harm factors are factors which pertain directly to the bodily injury suffered by the victim(s), which include: (i) the nature and location of the injuries, (ii) the degree of permanence of the injuries, and (iii) the impact of the injuries. Each primary harm factor counts as one offence-specific factor going towards harm; and these factors are meant to be “taken into account in the court’s assessment of whether the harm caused constituted “greater harm” or “lesser harm’” (Chen Song at [127]). At the same time, the High Court held that even if two or more primary harm factors apply, “if they present themselves to a limited degree, the court may nevertheless consider that ‘lesser harm’ had been caused based on a holistic assessment of the harm caused” (Chen Song at [127]). Secondary harm factors such as potential harm, where significant, should be considered in the determination of where the offence falls within the indicative sentencing band.

37     The High Court also laid down a non-exhaustive list of culpability factors, with each of them constituting one offence-specific factor going towards culpability, such as: (i) any form of dangerous driving behaviour; (ii) flouting of traffic rules and regulations; and (iii) high degree of carelessness. The High Court also held that the sentencing court should be “alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness”, by considering whether the “moral culpability of the offender [is] affected by the behaviour of the victim or a third party” (Chen Song at [133]).

38     The High Court held that generally, if there are 0 – 1 primary harm or culpability factors, there will be “lesser harm” and “lower culpability” respectively. Conversely, if there are 2 or more harm or culpability factors, there will be “greater harm” and “higher culpability” respectively.

39     Under the second step, the court is to then identify the applicable sentencing range based on the number of offence-specific factors present:

Band

Circumstances

Sentencing range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability

Or

Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



40     Under the third step, the court should identify an indicative starting point sentence within the applicable sentencing range.

41     Finally, under the fourth step, the court is to make adjustments to the starting point by taking into account offender-specific aggravating and mitigating factors.

42     I now explain how I had arrived at my decision by applying the Chen Song sentencing framework.

Assessing the level of harm

43     In terms of the harm caused, I was in agreement with the Prosecution that all of the three primary harm factors in Chen Song were engaged in the present case. This was also not disputed by the Defence. To reiterate, the three primary harm factors were as follows:

(a)     The Victim’s injuries were numerous and at vulnerable parts of his body, as he had suffered fractures on his skull and face, and haemorrhage in his brain.

(b)     There was permanent injury caused, as the Victim suffered a permanent complete loss of vision in his right eye.

(c)     The impact of the injury caused the Victim to be warded for 28 days and he was given 124 days of hospitalisation leave in total.

44     Given that all three primary harm factors were engaged, I was of the view that harm must fall within “greater harm” in the Chen Song sentencing framework. I therefore disagreed with the Defence’s submission that harm should be assessed as falling only at the higher end of “lesser harm”.

45     At the same time, notwithstanding the amount of suffering caused to the Victim, which should not be downplayed, I was of the view that the harm caused should be calibrated as being at the lower end of “greater harm”. In coming to this finding, I was mindful of the High Court’s reminder that “injuries classified as grievous hurt are by their nature serious. Yet the breadth of the category allows for it to encompass a wide range of injuries of differing levels of severity” (Chen Song at [127]). In my view, the same principle should apply in the Court’s assessment of whether, even if a case is one which falls within “greater harm”, the extent of harm is more appropriately classified in the lower end or higher end of “greater harm” itself.

46     In this regard, I considered that all of the Victim’s injuries could be treated conservatively, and he did not require any form of surgery arising from the accident. Indeed, there was no indication that the Victim had to be warded in the Intensive Care Unit (“ICU”) despite his many injuries; and the SOF also did not state whether there was any long-term impact of the injuries caused (save for the permanent loss of vision on his right eye). In my view, the higher end of “greater harm” should be reserved for cases where not only are all three primary harm factors engaged, but there is adequate evidence presented on:

(a)     the extensive or long-lasting suffering or impact on the part of the victim,

(b)     the complicated surgical procedures which the victim has to undergo, and/or

(c)     the victim’s injuries being medically assessed at some point to be life-threatening (eg, if there is a need for the victim to be warded in the ICU).

47     Given that, in the present case, the Victim’s injuries were all treated conservatively, and the length of hospitalisation leave, whilst long, was not inordinately long, I was of the view that harm in the present case should be pegged at the lower end of “greater harm”. In my view, this assessment is consistent with the High Court’s holding that the calibration of harm must be based on a “holistic assessment of the harm caused” (Chen Song at [127]).

Assessing the level of culpability

48     In relation to the Accused’s culpability, parties were aligned that there was only one offence-specific culpability factor, which is that the Accused had flouted traffic rules by driving across the chevron marking (dividing the expressway and the exit) after he had collided with the Victim. I accepted this as a relevant culpability factor, above and beyond the Accused’s inconsiderate act of using the same lane to overtake the Victim’s motorcycle, which was the gravamen of the charge. The fact that the Accused ended up crossing the chevron marking was evidence of the extent of his failure to appreciate that he might have insufficient time and space to overtake the Victim safely and legally, thus enhancing his culpability. At the same time, I also could not ignore the fact that the Accused had crossed the chevron marking only after he had applied his brakes (to avoid a collision with the Victim) and his collision with the Victim’s motorcycle. This was therefore not a case where the flouting of a particular traffic rule (ie, driving across a chevron marking) could be said to have caused the accident. Rather, it merely accentuated the Accused’s inconsiderate act of attempting to overtake the Victim when there was insufficient time and space for him to do so.

49     Had I only considered the aforementioned factor as presented above, I would have agreed with the Prosecution to calibrate the Accused’s culpability at the moderate end of “lower culpability”, which would have been fair and appropriate. However, I came to a different conclusion after considering the Victim’s manner of riding, which in my view did have a “direct bearing on the culpability” of the Accused.

50     In Chen Song at [133], the High Court held as follows:

Finally, in assessing the offender’s culpability, it is also important for the sentencing court to be alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness. The conduct of the victim or third parties may in certain circumstances be considered at this juncture in the calibration of the offender’s culpability. This was elaborated on in Guay Seng Tiong Nickson v Public Prosecutor [2016] 3 SLR 1079 (“Nickson Guay”). Following a survey of the positions in several foreign jurisdictions, the court in Nickson Guay concluded that in Singapore, “where the conduct of the victim or a third party has a direct bearing on the culpability of the offender, it should, in keeping with the principle of proportionality, be taken into account when determining the sentence to be meted out” [emphasis added] (at [65]). In the context of careless driving offences, the moral culpability of the offender is usually linked to the extent that the offender’s driving had fallen below the standard of a reasonably competent driver who ought to have exercised due care and attention and reasonable consideration to other road users. This can in some circumstances be affected by the behaviour of the victim or a third party (at [65]). However, the fact that the negligence (or otherwise) of the victim or a third party was a contributory cause of the accident should not, without more, be taken into account as a mitigating factor (at [68] and [70]).

51     Having studied the video footage tendered by the Prosecution carefully, I was of the view that prior to the collision, the Victim did not appear to have been riding his motorcycle in the most considerate manner, and the Accused’s culpability should be assessed with this factor being given its proper weight. I elaborate further as follows.

52     The video footage begins (at the “0 second” mark) with the Accused behind the Victim at lane 2, with the Victim’s right indicator light already turned on:

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53     As can be seen from the screenshot above, even though his right indicator light was turned on, the Victim was positioned in the middle of lane 2. The Victim continued riding his motorcycle in this manner (ie, with his right indicator light turned on, but his motorcycle positioned in the middle or closer to the left of lane 2) for at least 21 seconds, as can be seen from the screenshots below:

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54     This was despite the fact that around the “17 seconds” mark, the witness (from whom the video footage was obtained) could be seen slowing his vehicle down (in lane 1) to make a lane change from lane 1 to lane 2 to be behind the Victim. In these circumstances, there would have been sufficient time and space for the Victim to make a lane change to lane 1 had it been his intention to do so in order to exit the expressway moments later. However, the Victim continued riding in the middle of lane 2 for a few more seconds as can be seen in the screenshot above (taken at the “20 seconds” mark). All of these would have been witnessed by the Accused, who was driving behind the Victim at all material times.

55     It was only around the “22 seconds” or “23 seconds” mark where the Victim could be seen attempting to make a lane change:

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56     In my view, the Victim’s riding behaviour during this period was less than ideal, as it would have confused drivers who were driving behind or alongside him whether he was in fact serious about making a lane change, let alone whether he was even planning to exit the expressway on the right. This is because he had not attempted to make a lane change for a significant period of time (ie, 22 seconds) even though there were ample opportunities for him to do so, despite his right indicator light being switched on.

57     In paragraph 145 of the Riding Theory Booklet (see above at [29]), motorcyclist riders are reminded as follows:

You must not change lanes suddenly as you may inconvenience or endanger other motorists. When changing lanes, give sufficient warning of your intention. Always signal at least 3 seconds in advance. Failure to do so could cause an accident.

Well before you reach a junction, make sure that you get into the correct lane for whichever direction you wish to take.

[emphasis added]

58     Even though the accident did not occur at a junction, I found myself in agreement with the Defence that the Victim could have attempted a lane change much earlier or at least given a clearer visual indication to those around him that he was serious about doing so, especially since his intention was not only just to travel on lane 1 but to exit the expressway on the right of lane 1.

59     In my view, this indecision or even inattention by the Victim likely contributed to the error of judgment on the part of the Accused, in that the Accused could have wrongly presumed that even though the Victim had eventually changed lanes in front of him, the Victim was only going to stay in lane 1 but was not going to veer further right to exit the expressway, given his prior riding behaviour. To be clear, this does not detract from the gravamen of the charge, which is that the Accused should in any case not have attempted to overtake the Victim when the Victim was already travelling on the same lane ahead of the Accused. That said, even though the Accused had fallen below the standard required of him, I found that the Victim’s manner of riding did contribute to the Accused’s wrongful assessment of the Victim’s intention, which had a bearing on the Accused’s misguided attempt of overtaking the Victim without due care and attention.

60     In the circumstances, I could not agree with the Prosecution that the Victim’s manner of riding had no relevance or bearing on the Accused’s culpability. To use a counterexample, suppose the Victim had moved into lane 1 much earlier and continued veering right which would clearly signal his intention to exit the expressway. In this hypothetical scenario, had the Accused committed the exact, same act of inconsiderate driving, the Accused’s culpability would surely have to be calibrated much higher. This is because in the hypothetical scenario, it would have been abundantly clear to the Accused (and all other road users) that the Victim was intending to exit the expressway on the right and would be veering further right to do so, such that it would be much more blameworthy for the Accused to attempt to overtake the Victim on the right. Returning to the actual facts of the present case, since it was likely unclear to the Accused whether the Victim was going to exit the expressway on the right at the point the Accused made his ill-informed decision to overtake the Victim, I was of the view that the Accused’s culpability should be proportionately lowered.

61     For the foregoing reasons, I was of the view that the Accused’s culpability fell below the moderate end of “lower culpability”, and should be pegged at the lower end of “lower culpability” instead.

Indicative starting point sentence

62     Given my assessment that the harm was at the lower end of “greater harm”, and the Accused’s culpability at the lower end of “lower culpability”, I arrived at my preliminary conclusion that the indicative starting point sentence (had the Accused been convicted after trial) would be around 7 months’ and 2 weeks’ imprisonment. This is a sentence which is situated in the mid-range of the lower half of Band 2 of the Chen Song sentencing framework.

63     In my view, this was an appropriate starting point because it was much higher than the sentence at the lowest end of Band 2 of the Chen Song sentencing framework (ie, 6 months’ imprisonment), accurately reflecting that the present offence was definitely not one situated at the lowest end of “greater harm” or “lower culpability”. At the same time, it was also proportionately pegged at a quantum which was premised upon a “holistic assessment” of the harm suffered by the Victim, and a careful consideration of the behaviours of both the Accused and Victim leading up to the accident. Ultimately, I could not agree with the Prosecution’s proposed indicative starting point sentence of 10 to 12 months’ imprisonment because the Prosecution’s calibration appeared to be premised on harm being situated at the highest end of “greater harm”, and the Victim’s driving behaviour having no relevance or bearing in the assessment of the Accused’s culpability.

Calibrating the eventual sentence

64     In terms of the offender-specific factors, I agreed with parties that the only relevant factor to consider is the Accused’s plea of guilt. I also agreed with the Prosecution that given the procedural history of this matter (see above at [23]), this was a case falling within stage 2 of the SAP Guidelines; and that ordinarily, the court would factor into consideration a maximum reduction of the sentence by only 20%.

65     That said, I appreciated the Defence Counsel’s candid admission that it was a mistake on his part for not formally indicating that the Accused was going to plead guilty earlier when the Defence was waiting for the expert report (see above at [31]). I also observed that this was not a case where “public resources on the part of the law enforcement agency, [the] prosecution, and [the Court]” (SAP Guidelines at [4(b)]) had to be significantly expended or wasted as a result of the Accused’s decision to plead guilty outside of stage 1. There were only four court mentions prior to the Defence’s election to plead guilty, and a significant bulk of the time which elapsed was spent by the Defence sourcing and waiting for the expert report.

66     Therefore, I was of the view that while the full 30% reduction of sentence should not be granted to the Accused as he had not elected to plead guilty during stage 1, a reduction above 20% could still be justified, having also considered the Accused’s remorse and his otherwise unblemished driving record. Besides having to lose his liberty for a substantial period of time, the Accused was also at risk of losing his livelihood and having to relocate his entire family, all as a result of his moment of folly or impatience on the road on that fateful day.

67     For all of the foregoing reasons, I was of the view that it was appropriate for the indicative starting sentence of 7 months’ and 2 weeks’ imprisonment to be reduced to 5 months’ and 2 weeks’ imprisonment, with the DQ order of 5 years to take effect upon the Accused’s release from prison.

Conclusion

68     In my view, the sentence I have imposed is derived from a faithful application of the Chen Song sentencing framework. The sentence is also severe enough to send a clear message on the importance of considerate driving; and the pain or tragedy which can result by a momentary loss of concentration or patience whilst on the road. It is the hope of the Court that both the Accused and the Victim will learn and recover from this painful episode, and successfully rebuild their lives with the support of their loved ones in the years to come.

69     The Accused is currently on bail pending appeal.

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Public Prosecutor v Koh Kim Swee
[2024] SGDC 257

Case Number:District Arrest Case No 914848 of 2023 & ors, Magistrate's Appeal No 9087-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kamala Ponnampalam
Counsel Name(s): Ms Claire Poh (Attorney-General's Chambers) for the Public Prosecutor; Accused In Person.
Parties: Public Prosecutor — Koh Kim Swee

Criminal Procedure and Sentencing – Sentencing – Whether sentence of seven years’ Preventive Detention was manifestly excessive

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9087/2024/01.]

30 September 2024

District Judge Kamala Ponnampalam:

1       This is an appeal against sentence by the Accused.

Introduction

2       The Accused is Koh Kim Swee (“the Accused”), a male, Singaporean, aged 38 years. He pleaded guilty to the following charges.

DAC 914848-2023:

…you, are charged that you on or about 17th September 2023 at about 1.21am at Apt Blk 287B Jurong East Street 21 #XX-XXX, Singapore (“the unit”), committed mischief by fire, knowing it to be likely that it will cause damage to the metal gate and wooden door of the unit, to wit, by placing a cloth below the gate of the unit and tying a cloth around the metal gate and setting the cloths on fire, and you have thereby committed an offence punishable under Section 435 of the Penal Code 1871.

DAC 920782-2023:

…you, are charged that you, on 04 September 2023, at or about 5.30pm, at 20 Buangkok View Singapore 534194, Institute of Mental Health Ward 32A, did voluntarily cause hurt to one male victim, Tiong Hoe Chin, to wit, by punching the victim on the left side of his face twice intending to cause him hurt, and you have thereby committed an offence punishable under Section 323 of the Penal Code 1871.

3       A third charge was taken into consideration for purposes of sentencing.

DAC 920783-2023:

…you, are charged that you, on 04 September 2023, at or about 5.30pm, at 20 Buangkok View Singapore 534194, Institute of Mental Health Ward 32A, did use criminal force on one victim, Imperial Rex Reyes, to wit, by spitting saliva on the right side of the said victim’s face, and you have thereby committed an offence punishable under Section 352 of the Penal Code 1871.

4       The Accused was sentenced to seven years’ Preventive Detention. The Accused being dissatisfied with the sentence imposed, has filed this appeal.

The Statement of Facts

5       The Accused admitted to the following Statement of Facts without qualification.

(a)     The Accused is Koh Kim Swee. He is a Singapore Citizen, NRIC No. SXXXX078J. His date of birth is 28 May 1986 and at the material time he was 37 years old. The Accused’s parents stay at Block 287B Jurong East Street 21, #XX-XX, Singapore.

FACTS PERTAINING TO THE 1ST CHARGE UNDER SECTION 435 PENAL CODE 1871- DAC-914848-2023

(b)     One of the victims in this case is Rachel Lee Ping Ping (“Rachel”). She stays at Block 287B Jurong East Street 21 #XX-XXX, Singapore (“the unit”) with her two sons aged 22 and 24 years old. Rachel is the owner of the unit. At the material time, the three of them were in the unit.

(c)     On 17 September 2023 at 1.27am, one of Rachel’s sons called ‘999’ with the following message, “THERE IS A FIRE OUTSIDE MY DOOR. I THINK THEY BURNING MY DOOR. THERE IS SMOKE. I CAN SEE THE FIRE VIA THE REFLECTION ON THE FLOOR”. The incident location was the victim’s unit. Police and SCDF Fire Fighting resources were dispatched.

(d)     Investigations revealed that on 1 March 2022, the Accused wanted to take revenge on Rachel’s family as one member of the family had slammed the door. On 2 March 2022, between 12 midnight and 1am, he approached the victim’s unit and started a fire at the gate of the said unit. This was done with intention to destroy and damage the gate and door to the unit. The Accused was subsequently convicted under s 435 of the Penal Code 1871 for his actions and sentenced to 18 months’ imprisonment (with effect from 2 March 2022) on 19 August 2022. The Statement of Facts which the Accused pleaded guilty to for this conviction is at Annex A .

(e)     The Accused was released from Prison on 4 April 2023. He applied for a rental flat. He was warded in Institute of Mental Health for some time in September 2023. Thereafter, he resided at a hotel at Geylang until 16 September 2023. The Accused did not extend his stay at the hotel as he did not have sufficient funds. Around this time, the Accused felt a grudge towards the members of Rachel’s family and decided to take revenge on them.

(f)     On 16 September 2023, sometime in the evening, the Accused went to a nearby hardware shop to buy two cans of Zippo lighter fluid at $5 each, a lighter, two mini cloths and a mini screw driver with the intention to commit the same crime as described in [d].

(g)     On 17 September 2023, at about 1.21am, the Accused went to the unit. He placed one cloth below the metal gate and tied another cloth on the metal gate. Thereafter, he lighted the cloths. The Accused then splashed the contents of the two cans of Zippo lighter fluid against the cloths to increase the scale of the fire. He then left the scene. Subsequently, one of Rachel’s sons smelled smoke from the fire. He also saw that there was a red light coming from the gap of the main door on the floor. He called the police as per [c].

(h)     The Accused then went to eat some food at Blk 345 Clementi Avenue 5 before heading to Clementi Police Division at about 2am on 17 September 2023 to surrender himself for setting fire to the main door of the unit. He was arrested thereafter.

(i)     The fire died down before the police and SCDF arrived. However, part of the main door, metal gate and the concrete pavement outside the door was burnt. Two photographs of the main entrance of the unit after the fire was put out are at the Appendix . Rachel sold the unit soon after. She compensated the new owner $988.00 for the damage on the front door and metal gate.

(j)     The Accused had placed one cloth below the gate of the unit and tied another cloth on the metal gate. He then set the cloths on fire knowing that it was likely that this would cause damage to the metal gate and wooden door of the victim’s unit. In doing so, he had caused a change to the metal gate and wooden door of the unit as diminishes their value. The Accused had done so knowing that he would cause wrongful loss to the owner of the unit. He has thereby committed mischief by fire which is an offence under s 435 Penal Code 1871.

FACS PERTAINING TO THE 2ND CHARGE UNDER DAC-920782-2023

(k)     The victim in this case is Tiong Hoe Chin (male/25 years old at the material time). He has bipolar disorder.

(l)     The Accused was warded in IMH located at 20 Buangkok View, Singapore on 4 September 2023. The victim was also warded in IMH at this time in the same ward (Ward 32A) as the Accused. At the material time, the victim was restrained to his bed.

(m)     At about 5.30pm, in Ward 32A, the Accused and the victim had an argument over another patient who was screaming and shouting. The Accused initially walked away. However, he returned to the victim’s bed and intentionally punched the victim on the left side of his face at least twice intending to cause the victim hurt. The victim felt pain on his face as a result. Some nurses attended to the victim and pulled the Accused away. The Accused was not provoked to cause hurt to the victim.

(n)     The Accused, by punching the left side of the victim’s face at least twice has committed the offence of voluntarily causing hurt under s 323 of the Penal Code 1871.

Annex A

6       Statement of Facts for the Accused’s prior similar conviction.

INTRODUCTION

(a)     The accused is Koh Kim Swee, a 36-year-old male Singaporean bearing NRIC No. SXXXX078J.

(b)     The victim is Rachel Lee Ping Ping, 45-year-old female Singaporean.

FIRST INFORMATION REPORT

(c)     On 2 March 2022, at about 2.07 am, the accused informed the Police that he wanted to surrender himself as he had set fire to a housing unit.

FACTS RELATING TO THE CHARGE – DAC-903350-2022

(d)     On 1 March 2022, the accused was staying in a Geylang hotel and decided that he wanted to take revenge on the victim’s family. The accused’s parents were the neighbours of the victim’s family. The accused admitted that he wanted to take revenge on the victim’s family as one member of the victim’s family had slammed the door when the accused’s mother was going out of her house. The victim was residing at Blk 287B Jurong East Street 21, #XX-XXX, Singapore (“the incident unit”) while the accused’s parents were residing at Blk 287B Jurong East Street 21, #XX-XXX, Singapore.

(e)     On the same day, sometime at night, the accused went to a shop located in the western region of Singapore. He purchased two bottles of refillable zippo fuel, a set of towels and two lighters.

(f)     The accused then took a Grab vehicle to the block of the incident unit. On 2 March 2022, between about 12am and 1am, the accused approached the said unit with all the items that he had earlier purchased. He then placed some white towels on the gate of the incident unit. He then squeezed some zippo fuel onto the towels and lighted the towel. He stood a distance away to see the fire burning but he was not satisfied that the fire was not big enough. He approached the gate of the incident unit a few more times to squeeze more zippo fuel onto the towels so that the fire would become bigger. He admitted that he intended to destroy and damage the gate and door of the incident unit. The victim, her father and the victim’s two sons were sleeping in the unit at the material time and were unaware of what was going on outside.

(g)     The accused then took a Grab vehicle to Cantonment Police Complex and surrendered to the Police. The Police immediately activated Police officers. The Police officers went to the incident unit and informed the victim’s family of the incident. The fire had stopped by then. The fire caused damage to incident unit’s door and gate.

(h)     The victim made repairs for the said damages and the total cost of repair amounted to $230. The accused did not make any restitution to the victim’s family.

(i)     The accused was placed under arrest on 2 March 2022 and charged in Court on 3 March 2022.

(j)     By virtue of the foregoing, the accused had committed mischief by fire, intending to cause damage to property by using a lighter to set fire to fuel-doused towels which he had placed on the gate of the incident unit, resulting in damage to the door and gate of the incident unit. The accused had committed an offence punishable under Section 435 of the Penal Code 1871.

Appendix

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Antecedents

7       The Accused has shown a proclivity for violence related offences. He was first convicted of the offence of committing mischief by fire in 2002 and then again in 2022. He faces a similar charge in the present case. He has also been convicted of several other violence related offences – (1) three counts of voluntarily causing hurt by dangerous weapons or means, (2) two counts of carrying offensive weapons in public places, (3) one count of doing a rash act which endangers life or the personal safety of others, (4) one count for being armed with instrument for shooting, stabbing or cutting, or offensive weapon, and (5) one count of using indecent, threatening, abusive or insulting words or behaviour towards a public servant. The Accused’s antecedents are summarised below:

S/N

Date of Conviction

Offence (Conviction & TIC)

Global Sentence

1

13.03.2002

S. 435 C. 224

S. 435 C. 224

S. 336 C. 224

Juvenile Home 27 Months

2

17.08.2005

S. 379 C. 224 r/w S. 511 C. 224

S. 379 C. 224 r/w S. 511 C. 224

S. 6(1) C. 65

S. 380 C. 224

S. 6(1) C. 65

S. 30(1) C. 107

S. 30(1) C. 107

S. 30(2)(a) C. 107

Reformative Training Centre

3

07.05.2008

S. 324 C. 224

15 Months Imprisonment

4

11.05.2010

S. 324 C. 224

30 Months Imprisonment With 6 Strokes Caning

5

08.10.2013

S. 324 C. 224

5 Years Corrective Training

6

03.11.2021

S. 6(1)(a) C. 256A P/U S. 6(3) C. 256A

S. 453(1)(a) C. 224

3 Weeks Imprisonment

Taken Into Consideration

7

29.07.2022

S. 435 Penal Code 1871

18 Months Imprisonment



Prosecution’s submissions on sentence

8       Prosecution urged the Court to call for a Preventive Detention (“PD”) suitability report on grounds that the public requires protection from the Accused. A Pre-Sentencing Report for Corrective Training and Preventive Detention was called for.

The PD Suitability Report

9       The Accused was assessed suitable for both Corrective Training and Preventive Detention (“PD”). The Prison Medical Officer’s and the Psychiatrist’s Medical Memorandum certified that the Accused was generally in good physical condition with no known major illnesses and in a stable mental condition with his Adjustment Disorder and his Anti-Social Personality Disorder controlled with medications.

10     The Risk Assessment Report noted an Antisocial Pattern in the Accused’s offending history. It was stated that the Accused presented with behavioural problems at a young age with an early onset of defiant behaviours and unlawful transgressions from under the age of 16. His antisocial and violent behaviour patterns were pervasive across different domains of his life. Specific to his violent behaviours, they comprised a combination of pre-meditated violence, as well as violence arising due to his poor frustration tolerance.

11     It was noted that the Accused’s past violent offences between 2008 and 2021 against his friend, his mother, police officer, and his current offences in 2023 against an IMH patient and IMH nurse were indicative of his inability to manage his frustrations towards them effectively. In contrast, his past action of setting a fire to his parents’ neighbour’s house (2022 – Mischief) was a calculated decision to intimidate the victim. The Accused stated that he initially wanted to “kill her” (the neighbour) as she caused his mother distress and he had grudges against her for reporting him to the police for loitering However, he decided against it as he knew he would “get the gallows”. Hence, he intentionally chose to set fire instead as he knew he would not get a long sentence.

12     Information from the 2023 IMH report also indicated that his current Mischief offence against the same victim was similarly premeditated. He planned to commit the offence to incarcerate himself to bide time to continue getting his allowance while incarcerated, to repay his outstanding loan from his gambling.

13     Beyond violence, the Accused also presented with a long history of involvement in antisocial behaviours for pleasure and financial gain, and since 2019, employed maladaptive means of turning to substance abuse to relieve stress and to alleviate his low moods.

14     It was reported that the Accused presented with thinking patterns which were supportive of crime and unfavourable towards convention. He was callous in his narration of his recent offences and his narratives were indicative of his deflection of personal responsibility. He blamed the neighbour for antagonising his family and attributed his fire-setting to his diminished mental state from his overdose of IMH psychiatric medication. His justification of his offences was also evident where he blamed the IMH nurse for staring at him “like a hooligan” which led him to spit at him (2023 – Use of Criminal Force). He also presented with minimal personal responsibility and a trivialisation of his actions which was evident in his repeated emphasis that he should be given lenience as he surrendered himself after setting the fire, and that the fire had “extinguished on its own” and was “not very serious”.

15     It was further noted that the Accused’s differing accounts of his offence and other details of his life (e.g., gambling habits, employment, involvement with peers) were also indicative of a consistent pattern of untruths and deceit. For instance, in the interview he mentioned that he had been in an overdosed state when he set the fire and had done so as he was in a ruminative “downtrodden” state where he had been hearing voices of the victim humiliating him. However, information from the IMH report stated that the Accused had wanted to go to prison so that he would continue getting an allowance from the Social Service Office and his parents in order to repay a debt of $3000. The report also indicated that the Accused had overdosed after he had set the fire.

16     The report concluded that based on Singapore’s norms, the Accused’s LS/CMI score placed him in the High Risk/Need level of criminal re-offending. Overall, the Accused appeared to be unfavourable towards convention. He presented with weak association to conventional settings such as family and employment, high tolerance of violence and antisocial behaviours and activities such as gambling, drug peddling, association with street gangs and selling of vapes, an inability to comply with rules and regulations as evidenced by numerous past institutional violations and community supervision breaches.

17     Based on the HCR-20v3 the Accused’s risk of violent re-offending was assessed to be in the High range, due to his permissive attitudes towards violence, poor frustration tolerance, and the presence of Anti-Social Personality Disorder traits. Specifically, he presented with a consistent pattern of blaming the victims or extenuating situations and presented with little insight into the causes for his perpetration of violence. There were no protective factors assessed for the Accused.

Prosecution’s further submissions on sentence

18     The Prosecution submitted for a sentence of Preventive Detention (“PD”) with the length to be left to the court. The Prosecution had no objections to the sentence being backdated to the Accused’s date of arrest on 17.09.2023.

19     The Prosecution stated that the threshold requirements for the imposition of PD was satisfied. 1) The offender was above 30 years of age. 2) The offender stood convicted of an offence punishable with imprisonment for 2 years or more. The proceeded charges were for offences under s 435 of the Penal Code which is punishable for up to 7 years’ imprisonment and s 323 of the Penal Code which is punishable for up to 3 years imprisonment. 3) The offender has been convicted at least three times since he reached 16 years of age for offences punishable with 2 years’ imprisonment or more.

20     The Prosecution argued that it was expedient to protect the public from the Accused’s behaviour in view of his lengthy list of violent antecedents. For the offence under s 435 of the Penal Code, the Accused committed the same offence (i.e. setting fire to the same victim’s door) less than six months after being released from prison. For his conviction in 2022, the sentencing judge had already called for a Corrective Training/Preventive Detention Report giving the Accused fair warning that a Preventive Detention sentence would be the likely outcome for a future offence but the Accused remained undeterred.

21     The Prosecution pointed out that the Accused has been assessed to be at a high risk of recidivism. He has shown himself to be such a menace to society that a substantial period of incarceration is merited. There were no special reasons militating against a PD sentence.

Mitigation

22     In his oral Mitigation plea, the Accused stated that he is remorseful and repentant. He acknowledged that it was a similar offence to his immediate past conviction. Nonetheless, he pleaded for compassion and mercy. He stated that his parents are old and his mother suffers from schizophrenia. As their only child he needs to take care of them. He informed that after his release from prison, he plans to change for the better. He will travel to China to join his grandparents there to start his life afresh.

23     The Accused stated that he had overdosed himself on his psychiatric medicine prior to committing the offences. He was depressed and stressed because he was unemployed and penniless. As a result of the overdosing, he had severe delusion and hallucination and was not in the proper state of mind. It was not a premeditated offence. The overdosing was also the reason why he surrendered himself at the police station.

24     Following his arrest at the police station, he suffered a seizure and had to be hospitalised for treatment. He was subsequently remanded in IMH.

25     With respect to the Prosecution’s submission for a term of PD, the Accused argued that it was a severe and disproportionate sentence. The were no casualties from his offending and so a PD sentence was not warranted.

Psychiatric assessment of the Accused

26     Following his arrest, the Accused was remanded at IMH from 22.09.2023 to 02.10.2023 for psychiatric observation. In the report dated 26.09.2023, the psychiatrist, Dr Lim Cui Xi, documented the following.

27     The Accused was first seen in IMH at the age of 10 for behavioural problems. At the age of 15 he was diagnosed with Obsessive Compulsive Disorder. The enduring diagnosis since then however, has been that of Anti-Social Personality Disorder.

28     The Accused had been admitted to IMH numerous times in the past, the most recent was from 25.08.2023 to 05.09.2023. The majority of the admissions were in the context of his homelessness. He would threaten suicide or become aggressive if denied admission. He had also been remanded in IMH on a few occasions for varied offences, including torching a rubbish chute (2002), stabbing his mother (2010) and slashing his godfather (also an IMH patient) with a knife (2013). He claimed that at other times he was remanded in Complex Medical Centre at Changi Prison, as that was his preference. The Accused added that he had been imprisoned seven times for causing grievous hurt with dangerous weapon, arson, forgery and manslaughter.

29     The Accused denied alcohol use. However, he stated that he started taking Methamphetamine in 2019 with his girlfriend before she was arrested in 2020. He took Methamphetamine daily for a year. He would then feel paranoid and hear voices. Since his recent release from prison, he only took 5g of Methamphetamine twice a week for work performance from April to August 2023. He did not have any psychotic symptoms. The Accused stated that he had tried Ketamine and Ermin about twice or thrice in the past. During the COVID lockdown in 2020, he started to gamble online out of boredom. He would gamble daily. Since his prison release in 2023, he went to the casinos weekly. He admitted that he lost more than he won. He would attempt to cut losses rather than chase losses. He would avoid borrowing money from others. He only borrowed from licensed moneylenders. At present, he owed $3000. He would try to make money by selling cough syrup in addition to his job as a fork lift driver.

30     The Accused stated that he had committed an offence similar to the one which he had committed last year. This was his parent’s neighbour who was his enemy. This neighbour had a feud with his mother although he was unsure of the details. He hated this neighbour because this neighbour had reported him to the police for loitering near his parent’s place. Hence, he committed arson in the previous year. On this occasion, he decided to commit the offence as he felt that he could repay his $3000 loan by going into prison. He would not spend money in prison but would still continue to receive monthly allowance from his parents and financial assistance from the Social Service Office.

31     During the first interview, the Accused said that prior to committing the offence, he went to see his parents to warn them that he would be going to prison. After he had committed the offence, he realized that he would also encounter issues in prison. That was when he decided to overdose on over 20 tablets of Sulpiride with green tea to try to end his life. The Accused had obtained Sulpiride during his last admission in IMH but he did not take the Sulpiride as prescribed. He denied hearing voices and having suicidal ideation after his discharge. At the time of the interview, the Accused said that he no longer heard voices or had suicidal thoughts.

32     In the second interview, the Accused stated that a few hours before the offence, he went to the hardware shop to buy a lighter, two pieces of cloth (pink and blue), two bottles of flammable gas and a screw driver. He hid near a rubbish chute next to the 7-11 store and waited till there was no one around. He then went up to his parents’ block at about 1 am. He deliberately took the lift up to the 20th floor and placed his belongings near the stairs. He went to the victim’s unit and opened the flammable gas bottles with the screw driver. He placed the two pieces of cloth at the gate and lit them up with the lighter. The flame was small, so he threw more flammable gas on the cloths and there was an explosion. He left the scene and disposed the items.

33     Subsequently, he booked a Grab car to Clementi Police Station to surrender. During the car journey, the Accused overdosed on over 20 tablets of Sulpiride with green tea as he claimed that he wanted to die. When asked why he had surrendered to the police, the Accused said that the overdose would not kill him. When he reached Clementi, he had some food at a coffeeshop before going to the Clementi Police Station to surrender.

34     The Accused was observed to be calm and euthymic but impatient at times. He was coherent and relevant. He was not psychotic or suicidal. The nurses reported that on 24.09.2023, he scolded vulgarities, kicked the door and tried to provoke the ward staff.

35     The psychiatrist opined that the Accused a) had Anti-Social Personality Disorder at the time of the alleged offences, b) was not of unsound mind at the material time, c) was fit to plead in the court of law, and d) with his history of pronounced violence and his Anti-Social Personality Disorder, his risk of reoffending is high.

36     In a clarification report dated 08.02.2024, the psychiatrist stated that there was no causal link between his Anti-Social Personality Disorder and the offence. It does not affect his ability to exhibit self-control. In fact, he chose to commit the offence as he wanted to be imprisoned again.

Decision on Sentence

37     In assessing whether PD ought to be imposed, I considered the technical requirements and the substantive requirements prescribed in the governing provision, section 304(2) of the Criminal Procedure Code 2010 (“CPC”). S 304(2) CPC provides as follows:

(2)     Where a person 30 years of age or above —

(a)     is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least 3 times since he or she reached 16 years of age for offences punishable with such a sentence, and was on at least 2 of those occasions sentenced to imprisonment or corrective training; or

(b)     is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient for the protection of the public that the person should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to preventive detention for a period of 7 to 20 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

The technical requirements

38     The technical requirements were met in the present case.

(a)     The Accused is above 30 years of age. He was born on 28.05.1986 and was 37 years old at the time of his conviction and sentencing for the present set of offences before a District Court.

(b)     The present set of offences are punishable with imprisonment for two years or more. The offence under S 435 of the Penal Code 1871 is punishable with imprisonment for a term which may extend to seven years, and the offence under S 323 of the Penal Code 1871 is punishable with imprisonment for a term which may extend to three years.

(c)     The Accused has been convicted in Singapore at least three times since he reached 16 years of age for offences punishable with imprisonment for two years or more. These would include the three convictions for voluntarily causing hurt by dangerous weapons or means under S. 324 of the Penal Code (Cap. 224), in 2008, 2010, and 2013.

(d)     On at least two of those occasions the Accused was sentenced to imprisonment or corrective training. The Accused was sentenced to 15 months’ imprisonment in 2008, 30 months’ imprisonment with six strokes of the cane in 2010, and five years’ Corrective Training in 2013.

Whether it is expedient to order PD

39     Next is the substantive issue of whether it is expedient for the protection of the public to impose an order of PD.

40     In PP v Syed Hamid Bin A Kadir Alhamid [2002] SGCA 40, the Court of Appeal at [10] summarised the principles of PD as follows:

A sentence of preventive detention is intended for habitual offenders, aged more than 30 years, whom the court considers to be too recalcitrant for reformation (see PP v Wong Wing Hung [1999] 3 SLR(R) 304). Preventive detention ought to be imposed if the accused has shown that he is such a menace to society that he should be incarcerated for a substantial period of time.

41     In PP v Rosli bin Yassin [2013] 2 SLR 831 at [11] the Court of Appeal elaborated that:

The overarching principle is the need to protect the public … Put simply, if the individual offender is such a habitual offender whose situation does not admit of the possibility of his or her reform, thus constituting a menace to the public (and this would include, but is not limited to, offences involving violence), a sentence of preventive detention would be imposed on him or her for a substantial period of time in order to protect the public. As Yong Pung How CJ put it in the Singapore High Court decision of PP v Wong Wing Hung [1999] 3 SLR(R) 304 (“Wong Wing Hung”) at [10], the “sentence [of preventive detention] is meant essentially for habitual offenders, who must be over the age of 30 years, whom the court considers to be beyond redemption and too recalcitrant for reformation ”. The court will look at the totality of the offender’s previous convictions. (see the Singapore High Court decision of Tan Ngin Hai v PP [2001] 2 SLR(R) 152 at [7]). [emphasis in original]

42     The High Court in Ravindran s/o Kumarasamy v PP [2023] 3 SLR 1343 provided guidance on how the sentencing court ought to view the offender’s conviction history. Hoong J held at [47]-[48] that the court in its assessment ought to consider the totality of the offender’s previous convictions against the circumstances of the present offence:

To summarise, if an individual offender is such a habitual offender whose situation does not admit of the possibility of his reform, thus constituting a menace to the public, a sentence of PD would appropriately be imposed on him for a substantial period of time in order to protect the public. In its assessment, the court will have regard to the totality of the offender’s previous convictions viewed together with the circumstances of the offender’s present offending.

Importantly, since a sentence of PD is underpinned by the need to protect the public, it differs from a sentence of imprisonment and different considerations may apply in determining the appropriate duration and implementation of the sentence. As Yong CJ explained in Public Prosecutor v Perumal s/o Suppiah [2000] 2 SLR(R) 145 at [38]:

In this regard, I must reiterate my earlier exhortation in PP v Wong Wing Hung … at [10] not to confuse the concept of preventive detention and imprisonment, which are distinct sentences and are underpinned by different objectives and rationales. The former is essentially aimed at the protection of the public while the latter reflects the traditional policies of prevention, deterrence, rehabilitation and retribution. They are different in duration, character and implementation. As such, it would be a mistake to view them as fungible sentences.

43     In summary, the following factors would be relevant in determining if PD is necessary for the protection of the public:

(a)     Whether the Accused is a habitual offender

(b)     The totality of the Accused’s previous convictions.

(c)     The circumstances of the present offence.

(d)     The Accused’s risk of re-offending in future

(e)     Whether the Accused has shown himself to be a menace to society

The Accused was a habitual offender

44     The Accused’s criminal record speaks volumes. He was first convicted and sentenced to the Juvenile Home on 13.03.2002, about two months shy of his 16th birthday. Thereafter, he re-offended regularly, often soon after he was released from prison.

45     In 2002, he was sentenced to 27 months in a Juvenile Home. He was convicted of his next offence on 17.08.2005 and was sentenced to Reformative Training. He must have re-offended within months of his release from the Juvenile Home.

46     On 07.05.2008, the Accused was sentenced to 15 months’ imprisonment for voluntarily causing hurt by dangerous weapons or means. He was next convicted on 11.05.2010 for a similar offence and sentenced to 30 months imprisonment with six strokes of the cane. He could not have been long out of prison before he had re-offended.

47     Three years later, on 08.10.2013, he was again convicted for voluntarily causing hurt by dangerous weapons or means and sentenced to five years’ Corrective Training. If he had been granted the standard remission in sentence, he would have been released sometime in 2012. Once again he had reoffended within months of his release from prison.

48     After serving his sentence of Corrective Training, the Accused would have been released from prison sometime in 2018. He was convicted for his next set of offences on 03.11.2021 and sentenced to three weeks’ imprisonment.

49     On 02.03.2022, within about three months from his release from prison for his prior conviction, the Accused committed the offence of mischief by fire. Annex A above refers. He was sentenced to 18 months’ imprisonment. He committed the present offences within five months of his release from prison. Without doubt, the Accused is a habitual offender.

The totality of the Accused’s previous convictions

50     The Accused’s criminal records also showed that his long list of prior convictions spanning over 20 years revealed a propensity to violence. He had two similar prior convictions for committing mischief by fire. He also had other violence related antecedents including voluntarily causing hurt by dangerous weapons or means and doing a rash act which endangers life or the personal safety of others.

51     Even after two lengthy incarceration terms for the violence-related offences – 30 months’ imprisonment and five years’ Corrective Training - the Accused remains undeterred. In fact, in recent years, he had reoffended with greater frequency and regularity, each time within a few months of his release from prison. On 03.11.2021, the Accused was sentenced to three weeks’ imprisonment. He committed his next set of offences almost immediately after his release from prison (within about three months) and was convicted and sentenced to 18 months’ imprisonment on 02.03.2022. Similarly, the present set of offences were committed within five months of his release from prison. The time over which the Accused remained crime free was decreasing demonstrating that the conventional terms of imprisonment had little effect on him.

The circumstances of the present offence

52     The present offences were again serious, violence related offences. In the first charge, the Accused had deliberately set fire to the front door of his neighbour’s unit which could have resulted in serious harm to the occupants within. It was purely fortuitous that the occupants were unharmed. In the second charge, the Accused had punched the victim on his face, a vulnerable part of his body, while the victim was restrained to his bed. Both offences were unprovoked. The first charge showed planned deliberation and a clear intent to cause harm. The second charge revealed unrestrained and unprovoked violence.

53     The circumstances of the offences also demonstrate the Accused’s cavalier disregard for the law. The offence in the first charge was committed whilst investigations must have been ongoing for the second charge, and similar to the previous offence of committing mischief by fire, the Accused elected to ‘self-report’ his offences to the police. He was clearly unafraid of the possible consequences of his crimes. Overall, the Accused’s offending conduct was escalating and recurring without respite. Specific deterrence becomes an important consideration in sentencing the Accused to protect the public from him.

The Accused’s risk of re-offending in future

54     The PD Suitability Report stated that the Accused presented with thinking patterns which were supportive of crime and was unfavourable towards convention. His LS/CMI score placed him in the High Risk/Need level of criminal re-offending. Based on his HCR-20v3 assessment, the Accused’s risk of violent re-offending was assessed to be in the High range, due to his permissive attitudes towards violence, poor frustration tolerance, and presence of Anti-Social Personality Disorder traits. Specifically, he presented with a consistent pattern of blaming the victims or extenuating situations and presented with little insight into the causes for his perpetration of violence. He did not present with any protective factors.

Whether the Accused had shown himself to be a menace to society

55     Having reviewed the Accused’s history of offending and the increased frequency of the offending, coupled with the escalation in the nature and the circumstances of the offending, it is evident that conventional terms of imprisonment have had no deterrent or rehabilitative effect on the Accused. His antisocial thinking and behaviour patterns have placed him at a high risk of violent reoffending. He is clearly a menace to society and poses such a grave threat to the public that he ought to be incarcerated for a substantial period. A term of Preventive Detention is warranted for the Accused.

Whether there were special reasons not to impose Preventive Detention

56     Section 304(2) CPC specifies that if the court is satisfied that it is expedient for the protection of the public to impose a term of PD, it should do so unless it has special reasons for not doing so.

57     The PD Suitability Report included the Psychiatrist’s and the Prison Medical Officer’s Medical Memorandum. The memorandum certified that the Accused was suitable for the PD regime. He was assessed to be in generally good physical condition with no known major illnesses and in a stable mental condition with his Adjustment Disorder and Antisocial Personality Disorder controlled with medications. There were no “special reasons” for not ordering a term of PD.

The appropriate length of Preventive Detention

58     Having determined that a term of PD is necessary, the next issue to be decided was the appropriate length of PD to be imposed on the Accused. It was observed by the court in PP v Rosli bin Yassin [2013] 2 SLR 831 (“Rosli”) that the principles underlying regular imprisonment differ from PD. At [12] the Court of Appeal held:

It is important, in this regard, to emphasise that a sentence of preventive detention is not the same as a sentence of imprisonment. As Yong Pung How CJ put it in the Singapore High Court decision of Yusoff bin Hassan and others v Public Prosecutor [1992] 2 SLR(R) 160 (“Yusoff bin Hassan”) at [11]:

Furthermore, corrective training and preventive detention are meant to supplant a sentence of imprisonment which would otherwise be ordered. These sentences are passed “in lieu of any sentence of imprisonment”. It would appear that the sentencing court should simply address its mind to the appropriate period of custody merited by the offences for which the offender has been convicted before it, and his criminal record. Provisions such as ss 17 and 18 [of the CPC] which relate to the ordering of consecutive or concurrent sentences of imprisonment clearly do not apply. I agreed with the submission of the learned DPP that corrective training and preventive detention should be ordered in lieu of the aggregate sentence of imprisonment which the court would otherwise have been minded to impose…

59     The same principles were further highlighted by the High Court in Sim Yeow Kee v PP [2016] 5 SLR 936 (“Sim Yeow Kee”) at [97]:

In the context of PD, general deterrence and the social value in keeping a hardened criminal out of circulation provide a legitimate basis and operative justification for the application of this regime. Thus, we consider that considerations of proportionality would not apply rigorously in such circumstances. Here too, these considerations would have limited scope for displacing the imposition of a term of PD where such a sentence would otherwise be warranted. However, we reject the notion that it has no application whatsoever.

60     In other words, once a court decides that PD is warranted, the conventional principles of deterrence, rehabilitation, and retribution become secondary to the predominant principle of the protection of the public.

A PD term of seven years would not be disproportionate

61     While per Sim Yeow Kee, considerations of proportionality do not apply rigorously, it would nonetheless be relevant to consider the likely term of imprisonment that the Accused would face in assessing the appropriate length of PD.

62     For the S 435 of the Penal Code 1871 offence, which is punishable with imprisonment for a term which may extend to 7 years, and also be liable to fine, the Accused was previously sentenced to 18 months’ imprisonment. The current offence targeted the same victim with the same intent to intimidate over a petty grievance. It was planned and premeditated – he had purchased the necessary materials, and it was cunningly executed in the stealth of the night when no one was around to alert or assist the victim. His PD suitability report revealed that the Accused expressed no remorse for his actions. He blamed the victim for antagonising him and his family which caused him to commit the offence. His IMH report disclosed his true intent for committing the offence. It was a cold and calculated plan to find the means to repay his debt. It is also noted that the offence was committed very soon after his release from prison. In view of the aggravating factors present, the principle of escalation would be triggered. A sentence of at least 36 months’ imprisonment would be warranted to reflect the Accused’s antecedents and the need for specific deterrence.

63     The S 323 of the Penal Code 1871 offence is punishable with imprisonment for a term which may extend to 3 years, or with fine which may extend to $5,000, or with both. Once again, the circumstances of the offence were aggravated. While the harm caused may have been slight, the Accused’s level of culpability was high. The victim being restrained in his bed was in a vulnerable position. The attack on the face was to a vulnerable part of the body. Against the background of the other transgressions during his IMH admission which were enumerated in the psychiatrist’s report, the Accused was deserving of a significant uplift from the usual tariff of around 6 weeks’ imprisonment to at least 12 months’ imprisonment.

64     As both offences arise from completely different transactions, the imprisonment terms would have run consecutively and the Accused would likely face a global imprisonment term of around 48 months’ imprisonment. Thus, the minimum PD term of 7 years’ imprisonment is entirely appropriate.

Backdating of the term of PD

65     Section 318(3) of the Criminal Procedure Code 2010 expressly permits a sentence of PD to take effect on a date earlier than the date the sentence is passed. Where an offender has been remanded in custody, under s 318(5), the court is required to take into consideration the date on which the offender was arrested for the offence and the length of the period for which the offender was remanded in custody. The court must then consider directing that the sentence of PD takes effect on a date earlier than the date the sentence is passed.

66     As the Accused had, at the time of sentencing, been remanded since the date of his arrest on 17.09.2023 for a period of about seven months, and as the Prosecution had no objections to the backdating of the sentence, I ordered that the sentence of 7 years’ PD be backdated to the Accused’s date of arrest on 17.09.2023.

Conclusion

67     The Accused was sentenced to seven years’ Preventive Detention which was backdated to the date of his arrest, 17.09.2023. Given the facts and the circumstances of this case, it cannot be said to be a manifestly excessive sentence.

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Public Prosecutor v S D Surentharan
[2024] SGDC 262

Case Number:District Arrest Case No. 913556 of 2024 & Ors
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jakki Lim (Criminal Investigation Department) for the Prosecution; Accused-in-Person.
Parties: Public Prosecutor — S D Surentharan

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Driving under Disqualification

Criminal Law – Motor Vehicles (Third-Party Risks and Compensation) Act

10 October 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mr S D Surentharan, pleaded guilty to two charges:

(a)     One charge of driving whilst under disqualification under s 43(4) of the Road Traffic Act 1961 (“the Act”) and

(b)     One charge of driving without insurance in respect of third-party risks under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 (“MV(TPR&C)A”).

2       For the sentence for s 43(4), this judgment examined various precedents, including Fam Shey Yee v Public Prosecutor [2012] SGHC 134 and Public Prosecutor v Peng Jianwen [2021] SGDC 93.

3       All things considered, the Accused was sentenced to:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months from the date of release.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 in default 2 days’ imprisonment and driving disqualification of 24 months from 15 August 2024.

4       I set out my reasons. There was no appeal.

Charges

5       The Accused pleaded guilty to the following charges:

You,

NAME : S D SURENTHARAN

SEX / AGE : MALE / 23 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 14th December 2022 at or about 2.00 pm, along Yishun Ring Road, Singapore, did ride motorcycle no. FBE589T, on a road, when you were under disqualification from holding or obtaining all classes of driving license for a period of twelve months from 9th September 2022 to 8th September 2023, you have thereby committed an offence of Section 43(4) punishable under Section 43(4)(a) of the Road Traffic Act 1961.[note: 1]

You,

NAME : S D SURENTHARAN

SEX / AGE : MALE / 23 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 14th December 2022 at or about 2.00 pm, along Yishun Ring Road, Singapore, did use motorcycle FBE589T, whilst there was not in force in relation to the user of the said vehicle, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of the Motor Vehicles (Third-Party Risks & Compensation) Act 1960, and you have thereby contravened Section 3(1) of the Act, which contravention is punishable under Section 3(2) and Section 3(3) of the Act.[note: 2]

Statement of facts

6       The Accused is S D Surentharan, male, Singaporean, 23 years old. He was the rider of motorcycle, FBE589T at the time of accident. The motorcycle FBE589T was a rented vehicle from Stars Rental & Leasing which the Accused rented from September 2022 to December 2022.[note: 3]

7       The involved party is Wen Jianping, male, Chinese, 37 years old. He was the driver of motor lorry, YP3610P at the time of the accident.[note: 4]

8       On 14 December 2022, at or about 2.00 p.m., along Yishun Ring Road, Singapore, the Accused was riding motorcycle FBE589T and was involved in an accident with the involved party, motor lorry YP3610P. The Accused was riding the said motorcycle with a pillion.[note: 5]

9       Investigations revealed that the Accused rode the motorcycle FBE589T while his driving licence was under disqualification for all classes of driving licence for a period of 12 months from 9 September 2022 to 8 September 2023 by the District Judge of Court No. 7B where he had been charged for an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 6]

10     As the Accused was riding the motorcycle FBE589T whilst under disqualification, there was no insurance policy or such a security in respect of Third-Party Risks as complies with the requirements of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 in relation to the use of the said motor vehicle by the Accused.[note: 7]

11     The Accused has thus contravened s 3(1)(a) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 which is punishable under s 3(2) read with s 3(3) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 8]

12     By virtue of the foregoing, the Accused has committed the following offences:

(a)     Driving whilst under disqualification punishable under s 43(4)(a) Road Traffic Act 1961.

(b)     Use of motor vehicles without insurance coverage under s 3(1)(a) punishable under s 3(2) read with s 3(3) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 9]

Prescribed punishment

13     The prescribed punishment for s 43(4) of the Act is:

(a)     A fine not exceeding $10,000, or

(b)     Imprisonment not exceeding 3 years, or

(c)     To both.

14     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

15     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

16     The Prosecution asked for:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 and driving disqualification of 24 months.

17     For the s 43(4) offence, the Accused rode his motorcycle about 3 months after he had been disqualified from driving. He had a pillion rider. The Prosecution highlighted the case of Public Prosecutor v Peng Jianwen [2021] SGDC 93 where the High Court dismissed the offender’s appeal against the sentence for s 43(4) of 8 weeks imprisonment.

18     For the s 3(1) offence, the Accused had a prior antecedent in 2022 where he was fined $600 with a driving disqualification of 12 months.

Mitigation plea

19     The Accused had no mitigation plea.

Sentencing

The Law

(1)   Legislative intent of 43(4)

20     The punishment set out in s 43(4) for driving whilst under disqualification was enhanced in 1993, via the Road Traffic (Amendment) Act 1993 (Act 3 of 1993).

21     The Minister for Home Affairs, Professor S. Jayakumar, in moving the second reading of the Road Traffic (Amendment) Bill 1992 (Bill 37 of 1992), explained this enhanced punishment [Singapore Parliamentary Debates, Official Report (18 January 1993) vol. 60 at col 426-428]:

… There have been a number of cases ... where motorists who are disqualified by the courts from driving for committing a serious offence, have deliberately ignored the court’s prohibition and continued to drive. ...

According to the Traffic Police, there are more [of] such offenders, but it is not easy to catch them. The Traffic Police can detect them only when they are stopped for some traffic offence or when they are involved in an accident. I hope Members will agree that such a driver is really a menace to all other road users. He is, in fact, a lethal, unguided missile. Moreover, when he causes an accident, the victims will not legally be covered by insurance...

(see also Wilkinson’s Road Traffic Offences, Sweet & Maxwell (30th Ed, 2021, General Editor: Kevin McCormac) at [11-73]-[11-96]).

(2)   Precedents for s 43(4)

Fam Shey Yee v Public Prosecutor

22     In Fam Shey Yee v Public Prosecutor [2012] SGHC 134 at [12], the High Court stated that “the usual tariff (for s 43(4) of the Act is) four to eight weeks’ imprisonment”.

23      Fam Shey Yee’s tariff of 4 to 8 weeks’ imprisonment was cited by the High Court in Sheik Parvez Zunuas bin Shaik Raheem v Public Prosecutor [2022] SGHC 138 at [27], Public Prosecutor v Rizuwan bin Rohmat [2024] 3 SLR 694 at [62], and Seah Ming Yang Daryle v Public Prosecutor [2024] 4 SLR 1561 at [75].

24     In Sheik Parvez Zunuas bin Shaik Raheem, the High Court applied the tariff in Fam Shey Yee: “Given that the usual sentencing tariff for the s 43(4) offence is between four to eight weeks (Fam Shey Yee v Public Prosecutor [2012] SGHC 134 at [12], cited in the GD at [31]), I do not think it can be said that the uplift of two weeks from the bottom of the range was manifestly excessive” (at [75]).

25     In Rizuwan bin Rohmat at [62], the High Court stated that the “‘usual tariff’ for an offence under s 43(4) RTA is between four to eight weeks’ imprisonment: see Fam Shey Yee at [12]”.

26     Importantly, in Seah Ming Yang Daryle at [75], a 3-Judge High Court stated that “we were of the view that a benchmark sentence of two weeks’ imprisonment was appropriate for the archetypal s 35(1) RTA case which involves a first-time offender, who is an Unqualified Driver who pleads guilty, and who does not cause an accident. Such a benchmark sentence was broadly consistent with the usual tariff of four to eight weeks’ imprisonment for s 43(4) RTA offences of driving whilst under disqualification (Fam Shey Yee at [12]) considering the similarities and differences between both offences.”

27      Rizuwan bin Rohmat and Seah Ming Yang Daryle were cases involving s 35 of the Road Traffic Act. They were decided after the amendments to the Road Traffic Act in 2019.

Public Prosecutor v Peng Jianwen

28     In Public Prosecutor v Peng Jianwen [2021] SGDC 93 (”Peng Jianwen”), the District Court stated that “…the punishment for s 43(4) of the RTA has been enhanced for first and repeat offenders” (at [37]) and that consequently, “the new starting point sentence for a first offender like the accused here would now be double that of the previous sentence of four weeks’ imprisonment, i.e. eight weeks’ imprisonment” (at [47]).

29     I paused here to offer three observations.

30     First, while the sentence in Peng Jianwen was upheld on appeal by the High Court, the High Court in that case neither endorsed nor commented on the starting point of sentences for s 43(4) of the Act.

31     This was similar to the situation described in Kandasamy Senapathi v Public Prosecutor [2023] SGHC 296 at [34]. Essentially, while the specific sentences for the CDSA[note: 10] charges in Public Prosecutor v Ho Man Yuk & others [2017] SGDC 23 were upheld in Shaikh Farid v Public Prosecutor and other appeals [2017] 5 SLR 1081, the High Court did not comment specifically on the appropriateness of the sentencing ranges set out by the court below.

32     In his subsequent decision in Chong Kum Heng v Public Prosecutor [2020] 4 SLR 1056, the High Court Judge stated unequivocally (at [70]) that he had not commented specifically on the appropriateness of the sentencing ranges set out in Ho Man Yuk.

33     Second, the laying down of sentencing benchmarks should generally be left to the appellate court (Public Prosecutor v Sindok Trading Pte Ltd (now known as BSS Global Pte Ltd) [2022] SGHC 52 at [29]). Sindok Trading was cited with approval in Kandasamy Senapathi v Public Prosecutor [2023] SGHC 296 at [37] and Yeo Kee Siah v Public Prosecutor and another appeal [2024] SGHC 77 at [88].

34      Peng Jianwen was decided about one year before Sindok Trading.

35     Third, the amendments to the Road Traffic Act in 2019 did not enhance the prescribed punishment for s 43(4) for first offenders, which remained the same — at “a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both”.

36     That said, I acknowledged Parliament’s intent to punish irresponsible drivers more severely after the 2019 RTA amendments. This intent finds expression in the parliamentary debates and the legislative amendments.

37     During the Second Reading of the Road Traffic (Amendment) Bill (Bill No. 13/2019) on 8 July 2019, Second Minister for Home Affairs, Mrs Josephine Teo, explained that the impetus behind the comprehensive review of the RTA, and the consequent amendments to it, was the need for stronger deterrence and an “enhanced approach” against irresponsible driving offences (Public Prosecutor v Lim Choon Leong Aaron [2024] SGDC 219 at [16]).

38     Specifically, the purpose of adopting an “enhanced approach” was to “raise sentencing norms for egregious irresponsible driving offences” (Singapore Parliamentary Debates, Official Report (8 July 2019, vol 94). As a driver driving under a disqualification order falls within the definition of irresponsible driving, an offence of driving under disqualification should generally attract a stiffer punishment after the 2019 RTA amendments (Lim Choon Leong Aaron at [16]).

39     Further, the Parliament, in amending s 43(4) of the pre-2019 RTA to the current version in s 43(4) of the RTA, intended to confer a wider discretion on the courts to mete out higher sentences in appropriate cases. Before the 2019 RTA amendments, the offence of driving whilst under disqualification under s 43(4) of the pre-2019 RTA attracted a single punishment range for both first-time and repeat offenders, presumably with the sentences for first-time offenders being clustered at the lower end of the range (i.e., four to eight weeks’ imprisonment established in Fam Shey Yee), and the sentences for identically situated repeat offenders falling at the upper end of the range (Lim Choon Leong Aaron at [17]).

40     After the 2019 RTA amendments, the punishment range under s 43(4) of the pre-2019 RTA is now reserved for first-time offenders, and the maximum prescribed punishment for repeat offenders is double that of the maximum prescribed penalty for first-time offenders. This means that the sentences for first-time offenders need not be clustered at the lower end of the range – the courts can consider the full range of penalties prescribed in determining the appropriate sentence in each case, and impose higher sentences when the facts justify them (Ong Chee Eng v Public Prosecutor [2012] 3 SLR 776 at [24] and Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 at [26]) (see Lim Choon Leong Aaron at [17]).

Other Precedents

41     The High Court in Public Prosecutor v Lee Seck Lian (MA 9016 of 2024/01, Oral Judgment) at [8] referred to Peng Jianwen and Public Prosecutor v Abdul Fathani Bin Khairuddin [2021] SGDC 143, where the offenders pleaded guilty to offences under s 43(4) and were sentenced to 36 and 42 months’ disqualification respectively and 8 weeks’ imprisonment.

42     In keeping with the gravity of s 43(4), offenders who drive whilst under disqualification must expect an imprisonment term and in most cases, a disqualification period that is at least twice the original disqualification period (unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability): Fam Shey Yee at 134 at [12] and Muhammad Saiful bin Ismail v Public Prosecutor [2014] 2 SLR 1028 at [20].

(3)   Driving disqualification order

43     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

44     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

45     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

46     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Act.

Decision on sentence

47     The Accused drove a vehicle whilst under disqualification, flouting s 43(4) of the Act.

48     Driving whilst under disqualification is grossly irresponsible – it is about as grave an offence as a motorist can commit: Public Prosecutor v Chng Wei Meng [2002] 2 SLR(R) 566 at [43].

49     There are three interlacing reasons for punishing these offenders strictly. The first reason is the offender’s deliberate disregard of the court order: Public Prosecutor v Lee Cheow Loong Charles [2008] 4 SLR(R) 961 at [31] (see also the Sentencing Practice in the Subordinate Courts (Third Edition: Volume II, LexisNexis, 2013) at pages 1629-1630).

50     Second, bringing this to sharper focus is the danger posed to the public.

51     Third, not only does the offender compromise the safety of our roads, luckless victims of traffic accidents are at risk of being without compensation because the offender would not be covered by insurance: Chng Wei Meng at [18].

52     For s 43(4) of the Road Traffic Act, the surrounding circumstances may indicate diminished culpability if the offender felt compelled to commit the offence: Muhammad Saiful bin Ismail at [36].

53     There were no such surrounding circumstances to aid the Accused. In fact, he had rented the motorcycle from September 2022 to December 2022,[note: 11] which pointed towards an intentional and flagrant breaking of the law (Muhammad Saiful bin Ismail at [31]). He was involved in an accident with a lorry on the day in question.[note: 12]

54     The length of time from the start or end of the original disqualification order might also be relevant for culpability. A person who is caught driving near the beginning of the original disqualification period is likely to be more culpable than one who is caught near the end of the period, as it may suggest a more blatant disregard for the law and contempt for the court-imposed penalties: Muhammad Saiful bin Ismail at [33]-[34].

55     Here, the length of time from the start of the original disqualification order was about 3 months. The date of the offence was 14 December 2022.[note: 13] The Accused was disqualified from driving for all classes of driving licences for 12 months from 9 September 2022 to 8 September 2023.[note: 14]

(1)   Antecedents

56     The Accused’s driving record was not unblemished.

57     The Accused had a prior antecedent for s 3(1) of the MV(TPR&C)A in 2022 where he was fined $600 with a driving disqualification of 12 months.

58     He also had driving-related compounded offences for speeding and careless driving. An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

59     In the present case, I placed little weight on his compounded offences.

(2)   Guilty plea

60     The SAP Guidelines for Guilty Pleas applied. I gave due weight to the Accused’s guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

61     That said, the evidence against the Accused was overwhelming and lends itself to the conclusion that he had little choice but to plead guilty: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 at [71] and [73], and Public Prosecutor v BDB [2017] SGCA 69 at [74].

(3)   Cooperation with the authorities

62     I gave due weight to the Accused’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

Conclusion

63     For the above reasons, the Accused was sentenced to:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months from the date of release.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 in default 2 days’ imprisonment and driving disqualification of 24 months from 15 August 2024.

[note: 1]DAC 913556 of 2024.

[note: 2]DAC 913557 of 2024.

[note: 3]SOF at [1].

[note: 4]SOF at [2].

[note: 5]SOF at [3].

[note: 6]SOF at [4].

[note: 7]SOF at [5].

[note: 8]SOF at [6].

[note: 9]SOF at [7].

[note: 10]Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act.

[note: 11]SOF at [1].

[note: 12]SOF at [4].

[note: 13]SOF at [3].

[note: 14]SOF at [4].

"},{"tags":["CRIMINAL LAW – Offences – Outrage of modesty","CRIMINAL LAW – Offences – Insulting modesty","CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Appeal"],"date":"2024-10-09","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 902980-2023 and No 902981 of 2023, Magistrate's Appeal No 9134-2024-01","title":"Public Prosecutor v JCX","citation":"[2024] SGMC 71","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32299-SSP.xml","counsel":["Vincent Ong (Attorney-General's Chambers) for the Public Prosecutor","Patrick Fernandez (Fernandez LLC) for the accused."],"timestamp":"2024-10-15T16:00:00Z[GMT]","coram":"Wong Peck","html":"Public Prosecutor v JCX

Public Prosecutor v JCX
[2024] SGMC 71

Case Number:Magistrate Arrest Case No 902980-2023 and No 902981 of 2023, Magistrate's Appeal No 9134-2024-01
Decision Date:09 October 2024
Tribunal/Court:Magistrate's Court
Coram: Wong Peck
Counsel Name(s): Vincent Ong (Attorney-General's Chambers) for the Public Prosecutor; Patrick Fernandez (Fernandez LLC) for the accused.
Parties: Public Prosecutor — JCX

CRIMINAL LAW – Offences – Outrage of modesty

CRIMINAL LAW – Offences – Insulting modesty

CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Appeal

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9134/2024/01.]

9 October 2024

District Judge Wong Peck:

Introduction

1       The male accused is presently aged 61 years old. He claimed trial to 2 charges. One charge was for outraging the modesty of his stepdaughter (“the complainant”) under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)(“first charge”) and the other charge was for insulting the modesty of the complainant which was an offence under section 377BA of the Penal Code 1871(“second charge”).

2       After a trial, the accused was convicted of both charges which were as follows:

MAC 902980-2023

are charged that you, sometime in 2020, at Blk XXX at #XX-XXX, Singapore XXX, did use criminal force on one XXX, Female/16 years old (DOB: 07/06/2002) to wit, by grinding your penis against her buttocks, knowing it likely that you would thereby outrage the modesty of the said XXX, and you have thereby committed an offence punishable under section 354(1) of the Penal Code (Chapter 224, 2008 Rev Ed).

MAC 902981-2023

are charged that you, sometime on or about 23 October 2022, at East Coast Park, Singapore, intending to insult the modesty of one XXX, Female/18 years old (DOB: 07/06/2004), did utter words, to wit, by asking the said XXX to perform oral sex on you in return for money, intending that such words would be heard by her, and you have thereby committed an offence punishable under section 377BA of the Penal Code 1871.

3       After considering the parties’ position on sentence, I imposed the following sentences:

Charge

Charge Number

Sentence

First charge

MAC 902980-2023

6 months’ imprisonment

(Consecutive)

Second charge

MAC 902981-2023

10 day’s imprisonment

(Consecutive)

Total sentence

6 months and 10 days’ imprisonment



4       Being dissatisfied, the accused has since appealed against conviction and sentence. He is currently on bail pending appeal. These are the full grounds of my decision.

5       The issues for determination before this court were:

Issue 1:    Did the accused commit the offence as set out in the first charge?

Issue 2:    As it was undisputed that the accused did communicate the words that form the subject matter of the second charge, what was the accused’s intention when making such communication?

Background facts

6       The complainant lived with her biological father after her parents’ divorce. However, her sister (“CS”) and brother (“CB”) who testified in court as prosecution witnesses, lived with their mother (“CM”) and the accused at another flat. It was undisputed that the complainant regarded the accused as a father.

First charge (grinding incident)

7       The complainant would visit the accused’s flat and obtain massages from the accused to relieve her bodily aches as she was active in the sport of Silat. The offence occurred during one of these massages that took place in the bedrooms in the accused’s flat. Although the accused would usually step on the complainant’s back as part of the massage, on that particular occasion, the accused sat on the back of the complainant to massage her back. The complainant felt the accused’s penis grind against her buttocks.

Second charge (“blowjob” incident)

8       This offence occurred during a family picnic that took place at the East Coast Park on a public holiday on 23 October 2022. The complainant and the accused went to a corner to have a smoke when the accused uttered words that were intended to insult her modesty. They had a conversation during which the accused asked the complainant if she would give him a “blowjob” if he gave her $100. When she refused, he offered her more money to which she refused. It was undisputed that such words were uttered. However, the accused claimed that he was instructed by CM to find out if the complainant had been liberal with the opposite sex and the utterance of these words were to “test” the complainant in this regard.

The prosecution’s case

9       There were 5 prosecution witnesses who gave evidence in court. These witnesses included the complainant, CS, CB, Officer F and Investigation Officer (“IO”). Officer F was the police officer who attended to the police report made by the complainant on 25 October 2022 relating to the first charge.[note: 1]

Evidence by CS

10     CS gave evidence that she would converse with the accused in a mixture of English and Malay. Their relationship was like father-daughter. According to CS, the complainant reduced the frequency of her visits to the accused’s flat after the filing of her police report in 2022 as the complainant did not want interaction with the accused. The sisters shared a very close relationship, and the complainant would regard CS as her mother. The sisters would speak to each other every day on a myriad of topics.

11     CS testified that the complainant’s relationship with the accused was also like father-daughter. According to CS, the complainant had spoken to CS more than once about the accused touching the complainant inappropriately. This included the incident which was subject matter of the first charge.

12     The complainant told CS that sometime in 2019 or 2020, during one of their Facetime sessions, there was an occasion that the accused had been “grinding his penis on” the complainant during a massage session. However, the complainant did not mention which part of her body. This happened when the complainant had asked the accused for a massage as she was tired and aching from her Silat practice.

13     The complainant sounded angry about the incident. CS told the complainant that she could be overthinking and brushed it off. However, she went on to advise the complainant not to come back to the accused’s flat so often. As CS felt confused after the conversation, she did not tell anyone about what the complainant had divulged to her. She noticed that the complainant reduced her visit to once a week thereafter.

14     CS also testified that the complainant told her about the insulting words said by the accused at a family picnic which was the subject matter of the second charge. CS recalled that the accused proposed “blowjob” and “having sex”.

15     After the picnic, on the night of that day, the complainant reached out via Telegram to CS. She told CS that she had spoken to CB already about the “blowjob” incident. When the sisters conversed over Facetime, the complainant informed CS that during a smoke session when the accused and the complainant were alone, the accused offered $100 for a “blowjob” and asked her if she wanted to feel what sex was like, she should go to him instead of other boys. According to CS, the complainant was angry and shocked when talking about the incident.

16     According to CS, CB then convened a family dialogue at the accused’s flat during which CB asked the accused for an explanation for the “blowjob” incident. The accused’s explanation was that the complainant misinterpreted the contents of their conversation.

The complainant’s evidence

17     The complainant testified that she was the closest to the accused as compared to her siblings. She even addressed him as “Papa” as she viewed him as a father figure. However, she was not very close to CM.

18     The accused and the complainant would speak to each other in a mixture of Malay and English. Whenever she had a problem, she would confide in CS.

19     When the complainant started having a boyfriend, the accused initiated a conversation with her about the sexual relationship between her and her boyfriend. She replied that they did not have sexual intercourse but she had given her boyfriend a “hand job”. Sometime in late 2019, she noticed that the accused would appear to accidentally touch her breast area which she dismissed as an accidental touch. CS then advised her not to come over to the flat so often.

20     Sometime in 2020, she had asked the accused to give her a massage by using his feet to step on her. The massage took place in the bedroom of her siblings. She then proceeded to lie face down. Instead of stepping on her, the accused sat on her back and massaged her shoulder area using his hands. She felt his penis rubbing on her buttocks in a up and down motion for less than 5 seconds. They were both wearing clothes. He was wearing a pair of jersey shorts.

21     As she was facing down, she could not see anything. She explained that as he was wearing jersey shorts with no pockets such that there was no possibility of objects being placed in his pockets and since his hands were massaging her shoulders, she was certain that it was his penis that was moving up and down her buttocks. At one point, she could feel his stomach on her back and his legs were spread open with each leg alongside her body. She then pushed him away and told him “Dah” to mean “enough”. Then she shouted “Mi” to call out to CM. However, CM was in her bedroom and did not hear her. The accused then got up and left the room.

22     According to the complainant, it was common for her to ask her family members for massages. This included asking the accused to provide massages. The complainant had Silat training so needed the massages to relieve her aches.

23     The complainant testified that when she confided in CS about this incident, CS told her to stay away from the flat. As the complainant had always listened to her sisterly advice, she reduced her visits to the flat thereafter.

24     On 22 October 2022, there was a family picnic at the East Coast Park. At one point, the complainant accompanied the accused for a smoke by themselves. The accused began the conversation by asking her if she was a virgin. When she replied “No”, he asked her if he gave her $100, would she give him a “blowjob”. Again, she replied “No”. By then, she had felt disgusted by him in that if he had regarded her as a daughter, he should not be asking her for a ”blowjob”. He persisted by offering her a sexual experience if she wanted such a sexual experience. He claimed that for such a sexual experience, he would be “better than any guy” and the experience would enable her to “drop dead until you cannot walk”. She continued feeling very uncomfortable by this conversation. She did not reply and the conversation ended. Thereafter, the accused texted the complainant that they had shared an experience and to keep it between them.[note: 2]

25     On 24 October 2022, she informed CB about what happened at the picnic. She recalled feeling very scared and was crying when she recounted the incident to CB. She then proceeded to file a police report on 25 October 2022.[note: 3]

Investigation Officer’s evidence

26     The investigation officer (“IO”) recorded 5 statements from the accused. On 26 October 2022, the accused wanted to file a police report against the complainant but he was arrested instead as the complainant had already filed a police report earlier.

27     The accused’s first and second statements were recorded in English on 26 October 2022[note: 4]. The third statement, which was to clarify his earlier statements, was recorded in English on 28 November 2022.[note: 5] The last 2 statements were the ones recorded under section 23(1) of the Criminal Procedure Code 2010.[note: 6]

Officer F’s evidence

28     Officer F confirmed in court that he attended to the complainant when she arrived at the police station to file her police report about both incidents. He clarified that although the complainant had informed him about both incidents, the police protocol was to reflect only the main offence which was the first charge.

CB’s evidence

29     CB testified that he addresses the accused as “papa”. CB was not really close to any family members as he would work and come home and would have little interaction with his family members.

30     According to CB, the complainant would come over to the accused’s flat often and even sleep over for a few days. Then the frequency of her visits reduced. Before she filed the police report against the accused, she had called CB first to meet up as she had something to tell him. When they met, she looked sad and tired.

31     During the meeting, she told him that at the family picnic, the accused had offered her money for a “blowjob”. She also told him that during a massage, she could feel the accused’s penis on her back. She did not tell CB about any grinding motion. CB asked her why she did not inform anyone. The complainant informed him that she had confided in CS. As her brother, he told her that he would accompany her to make police report if she wished to do so.

32     CB then convened a family dialogue so that family members could listen to the accused’s explanation for both incidents. The accused claimed that he offered the complainant $100 for a “blowjob” to test the complainant to see if she was still a virgin. He claimed that CM instructed him to test the complainant. As for the massage, he claimed that he had not intention to molest the complainant.

33     CB also testified that he did not believe the complainant entirely and he would want to hear both sides before deciding if the incidents did happen.

The defence’s case

The accused’s evidence

34     The accused’s evidence was that he did provide massages to the complainant in 2019 and 2020 as she would ask for massages when she felt pain and aches in her body. He continued providing massages until October 2022. During the massage, the complainant would lie face down on a mattress.

35     According to the accused, during massages, he would sit on her thighs and massage the complainant for about 10 minutes. CM would be in the room during the massages and the complainant would ask for CM to be present in the room. He claimed that he would not have an erection during the massages.

36     His defence to the first charge was that there was no outrage of modesty. The complainant continued having massages until October 2022. However, he admitted that he was not aware of any reason why the complainant would falsely accused him of the offence.

37     The first 2 statements were recorded in English as he claimed that he did not know that he could ask for an interpreter. He claimed that he could speak only little English so for the third statement, he asked for a Malay interpreter. He testified that he asked for the recording of the third statement as he was stressed during the recording of the first 2 statements and he might have said the wrong thing. He testified he was aware that it was important to tell the truth to the police.

38     As for the picnic incident, he did not deny that those words in the second charge were said by him to the complainant. He suggested that maybe the complainant was angry with his words and might have created stories to accuse him.

CM’s evidence

39     CM claimed that she shared a close relationship with the complainant. The accused and the complainant also shared a loving relationship as father- daughter.

40     When the accused provided massages to the complainant, CM would be present. She would leave the room only when the massages were completed. During the massage, the complainant would lie face down and the accused’s legs would straddle her body but he did not sit on her. He did not give the complainant massages by stepping on her body. CM claimed that if the complainant had been molested by the accused, the complainant would have informed her.

41     As for the family picnic, she recalled seeing both the accused and the complainant going for a smoke for about 10 minutes sometime during the picnic. This took place a little distance away. CM testified that the accused informed her after the picnic that he had advised the complainant to be careful with her friends. When they all left the picnic in a van, the complainant even chatted and laughed. The accused even lent the complainant $20 when the latter asked him for the loan.

42     As for the family dialogue, she claimed that she understood that there was a misunderstanding about the “blowjob” offer. The accused’s fatherly advice to the complainant was to be careful when mixing around and not to let others take advantage of her. CM testified that she did not know whether the accused had offered $100 to the complainant for a “blowjob”. She agreed that the offer of a “blowjob” for money would be insulting but in this instance, it was fatherly advice. She claimed that the “blowjob” offer was an example and not intended to insult the modesty of the complainant.

Submission of no case to answer

43     At the close of prosecution’s case, the defence counsel made a submission of no case to answer. In this regard, the question was whether there was some evidence (not inherently incredible) which, would establish each essential element in the alleged offences. The legal test was set down in the seminal case of Haw Tua Tau v PP [1981-1982] SLR (R) 133.

44     According to the defence, the offences took place when both the complainant and the accused were alone. Hence, the complainant’s evidence must be “unusually convincing”. The complainant’s evidence was uncorroborated and lacking in internal and external consistency such that no case was made out against the accused. The defence highlighted that the complainant testified that he never actually saw the accused using his penis as he was positioned on top of the complainant. Her evidence was that she felt his penis when he was sitting on top of her. Subsequently, her evidence was that he was lying flat on top of her when she felt his penis.

45     The defence also submitted that the complainant did not tell CM about the incident. She also continued to visit the accused’s flat and continued obtaining massages from the accused.

46     As for the second charge, the accused uttered those words as he was asked by CM to warn the complainant of the dangers of promiscuity. She was not disgusted or insulted by those words as she stayed on for another 2 hours until the end of the picnic and the whole family left together in the same van. The complainant even asked to borrow $20 from the accused via a text message whilst in the van and did not complain to the others while seated in the van.

47     The prosecution highlighted that there was sufficient evidence to establish all elements of the offences. The complainant had given a clear and logical recollection of the outrage of modesty incident which was not inherently incredible. While the complainant could not see the accused’s penis grinding against her, she gave cogent testimony that she could conclude that it was his penis as the jersey pants that the accused was wearing did not have pockets. A such, she could feel the accused’s penis moving up and down her buttocks.

48     As for the accused’s positioning, he was first sitting on her back and it progressed to him pressing his tummy on her hip area. Further, the complainant informed CS about this incident and CS corroborated the complainant’s testimony.

49     The complainant explained that she continued to get massages from the accused as CM would redirect her request for a massage to the accused.

50     As for the second charge, it was undisputed that such words were uttered. The only contention was the accused’s intention in doing so. The prosecution emphasised that such words were insulting particularly since he uttered the words in his capacity as the stepfather. The complainant testified that she was disgusted by the words.

51     After considering the submissions made by parties, I agreed with the prosecution that the prosecution had established a prima facie case. It was trite that the court was not required at this stage to conclude whether the accused’s guilt been proven beyond a reasonable doubt. The prosecution had shown that there was evidence to establish each essential element of the offences. Therefore, I then proceeded to call the accused to enter his defence.

Evaluation of evidence for the trial

52     For this trial, I found that the complainant was an unusually convincing witness. At [90] of PP v GCK and another matter [2020] 1 SLR 486, the complainant would be unusually convincing if the complainant’s testimony alone was sufficient to prove the prosecution’s case beyond a reasonable doubt. The court was to consider the complainant’s demeanour and the internal and external consistencies of her evidence.

53     For the present case, I also found that there was corroboration by CS and CB. CS and CB were able to corroborate the complainant’s version of her incidents.

Issue 1: Did the accused commit the offence as set out in the first charge?

54     I found that the grinding incident occurred in 2020 as in 2019, the complainant was still visiting the accused’s flat regularly. CS had testified that the complainant had reduced the frequency of her visits in 2020 which was the year as stated in the first charge. I found that this was because CS had advised the complainant to reduce the frequency of her visits after the sisters conversed about the grinding incident.

55     I found that the complainant had maintained her version consistently of how the outrage of modesty occurred. I found her evidence internally consistent and corroborated in the material aspects by CS and CB. The complainant had a close relationship with the accused and she called him “Papa”. She would also speak to the accused when she had problems. They would converse in a mixture of English and Malay. They also texted each other over WhatsApp. I found that she trusted the accused as a father to her.

56     The complainant’s version was consistent when the time when she informed CS as to how the offences occurred till the time when she gave evidence in the witness stand. I accepted the prosecution’s submissions that her account of the incident was “credible, consistent and unequivocal”. Her evidence remained unshaken and was tested during cross examination.

57     The complainant’s evidence was internally consistent in that she could clearly describe in detail that although she had asked the accused to step on her body as a massage, he instead sat on her “butt area” while she was lying prone, face down and he massaged her shoulders using his hands. While doing so, she could feel his penis grinding on her buttocks. She felt his hips resting on her buttocks and his penis grinding up and down for a few seconds[note: 7]. She could not have mistaken some object for his penis as there was nothing in the pocket of the accused’s jersey pants[note: 8]. Even under intense cross-examination by the defence, the victim’s testimony remained consistent that it was the accused’s penis grinding on her buttocks. [note: 9]She managed to push the accused away and called for her mother. As she was closer to CS than CM, it was unsurprising that she chose to confide in CS rather than CM about this grinding incident.

Issue 2: As it was undisputed that the accused did communicate the words that form the subject matter of the second charge, what was the accused’s intention when making such communication?

58     As for the second charge, it happened on Deepavali day which was 22 October 2022. While the accused and the complainant were alone for a smoke during the family picnic, the accused asked her if she was a virgin and upon hearing her reply that she was not, he went on to ask her if he paid her $100 for a “blowjob”, would she comply with the request for a “blowjob”. When she refused, he persisted and offered $200. She again rejected him. He also went on to offer sexual experience for which he could offer one “better than any guy”. This conversation took place when the accused was talking in a serious tone. As she was then already 18 years old as opposed to being 15-16 years old during the grinding incident, she testified that she decided to make a police report on 25 October 2022. I found that this was a logical explanation as to why she did not make a police report about the grinding incident earlier. With more maturity and realization that unwanted sexual encounters would likely persist if nothing was done to stop such encounters, she made the police report only after the “blowjob” incident. She had withheld making the police report about the grinding incident which was unsurprising since she regarded the accused as her father.

59     The complainant’s evidence was also corroborated by CS and CB. CS testified that the complainant had told her sometime in 2020 about the grinding incident that occurred during a massage. CS also testified that the complainant told her about the “blowjob”[note: 10]. The details of both incidents recited by CS in court were similar to the complainant’s testimony in court on how the incidents occurred[note: 11]. In contrast, the accused merely denied that he committed the offence at all for the grinding incident. It was undisputed that the complainant did obtain massages from the accused at the material period in time.

60     The parties agreed that the issue was whether the accused had intended to insult the victim’s modesty in making the “blowjob” proposition. For this incident, the accused did not deny that he did raise the subject of a “blowjob” for money. However, he attempted to explain that he was merely using the “blowjob” for money as an illustration as to how she should be circumspect when mixing with men. He claimed that it was fatherly advice and he did it out of fatherly concern. CS testified that this was an inappropriate conversation that the accused had with the complainant especially in a father-daughter context.

61     I agreed with the prosecution that the accused had intended to insult the modesty of the complainant[note: 12]. A request for oral sex for money was indeed inherently insulting to a woman’s modesty and it was worse when made in a stepfather-step daughter context. The accused admitted that he did make the proposition, but he gave an incredible explanation that he did so because CM told him to warn the complainant about being promiscuous. This was very odd explanation as there were other ways of administering such a warning without a “blowjob” proposition for money.

62     As for the reason why the complainant did not inform anyone in the van about the “blowjob” proposition, the reply was that no one would believe her. This was borne out by CM’s evidence that she would not have believed the complainant.[note: 13] I found this to be a reasonable explanation for the complainant’s behaviour in not informing anyone in the van at that point in time about the “blowjob” proposition.

63     The complainant’s testimony of “blowjob” proposition was corroborated by CS’s testimony[note: 14]. CS testified that the complainant was angry and shocked when she informed CS of the incident.

64     I found that the accused had not raised any reasonable doubt. For the grinding incident, the accused’s reply to Question 8[note: 15] in first statement recorded on 26 October 2022@1124 hours if he had used his penis to grind on the victim’s buttocks, he replied that “I cannot say yes, I cannot say no.” If this was a false accusation, he would have made an outright denial which he failed to do so. The accused claimed that he was nervous when he gave the 2 earlier statements on 22 October 2022 and might have said words wrongly. I found that this was not true as he had presence of mind to make amendments as seen on pages 9 to 13 of the first statement[note: 16]. He also claimed that he needed a Malay interpreter. According to the accused, as he was not really conversant in English, he did not provide correct answers in his first statement.

65     However, during the trial, he did answer a few times even before the Malay interpreter had completed her interpretation to him. He even answered clearly and loudly that he disagreed with a question that the learned prosecutor had put to him during cross-examination. This question posed by the learned prosecutor was that the accused had made the “blowjob” proposition because he thought he had a chance of getting a “blowjob”. Even CM who is his wife confirmed that they would speak and send texts to each other in English. Therefore, I found that he could understand, read and speak English. It followed that the accused did not make unintended or incorrect answers in the first statement as alleged by him.

66     I found the accused’s evidence to be riddled with inconsistencies, and he had the tendency to embellish or exaggerate his testimony. As stated earlier, his reply to Question 8 about the grinding incident in his first statement contrasted with his denial in a subsequent statement recorded on 28 November 2022 at 10.57am[note: 17] where he denied the incident. This subsequent statement was made by the accused 2 days later when he had the chance to ruminate on his earlier replies and decided to change his answers to ones that were favourable to him.

67     Another inconsistency related to the use of an interpreter. In the earlier 2 statements recorded on 26 October 2022, he declined to use an interpreter as he could speak a bit of English. In court, he claimed that he did not know he could ask for an interpreter although the question captured in the statements clearly showed that the Investigation Officer specifically offered the use of an interpreter to him. When confronted with this evidence of an offer, he changed his evidence to “I cannot recall if I did ask for an interpreter.”

68     Another inconsistency was the deletion of the WhatsApp exchange between the accused and the complainant[note: 18]. In this WhatsApp exchange, the accused had told the complainant to keep the conversation they had at the picnic between them. In court, he said at first that he did not delete this exchange from his phone. Upon further questioning by the prosecution, he changed his answer to “cannot remember”. However, the learned prosecutor showed that he had answered in Question 8 of his second statement that he had deleted them[note: 19].

69     I agreed with the prosecution that the accused had deleted this said WhatsApp exchange because he wanted to conceal the fact that he had informed the complainant to keep the conversation they had about the “blowjob” proposition secret. The first statement was made a mere 3 days after the “blowjob” incident. The accused also did not provide a satisfactory explanation as to why he deleted the exchange and at such a haste, a mere 3 days after the incident. I found that he knew the “blowjob” proposition was insulting to the victim and deleted this exchange to cover his tracks.

70     The accused claimed in court that the “blowjob” conversation was fatherly advice given to the victim and was a misunderstanding. However, the accused made no mention of fatherly advice in the cautioned statement recorded on 29 May 2023 at 2.45pm[note: 20]. This cautioned statement was made after the accused had benefit of legal advice. All he stated in the cautioned statement was that he was not guilty. Therefore, I found that the accused’s explanation for the “blowjob” proposition that he was merely giving fatherly advice and that it was a misunderstanding an afterthought on his part.

71     By the accused’s own admission in court, he had no idea as to why the complainant would falsely implicate the accused of both offences. The burden would fall on the prosecution to prove that there was an absence of motive only when the defence has raised sufficient evidence of a motive to fabricate allegations against the accused (see [48] in PP v Yue Roger Jr [2019] 3 SLR 749. Here, the accused had not adduced any evidence of a motive such that the burden would fall on the prosecution to prove the absence of a motive.

72     I found that CS had no reason to falsely testify in court about the grinding and “blowjob” incidents. It was also CS’s evidence that the complainant had a close relationship with the accused, so the complainant had no reason to falsely accuse her stepfather of having committed both offences. Although CB did testify that he did not entirely believe the victim, he did concede that he would want to hear both sides before deciding. This was unsurprising considering he was not close to the victim nor the rest of the family by his own admission as he would do his “own thing”.

73     I found CM’s evidence consisted mainly of opinion evidence which was inadmissible. For example, opinion such as “I know my husband and he would not do things like that.” This was in reply to the question about the grinding incident.

74     As for “blowjob” incident, I found that she knew little of this proposition. She admitted that she was a distance away when the conversation between the accused and the complainant occurred. She admitted that all she told the accused to speak to the victim about was “Be careful with whoever you befriend.” She did not inform him to use oral sex as fatherly advice nor as an illustration. She also knew scant details of the conversation and only knew whatever the accused chose to tell her. For example, she admitted that she first heard about the “blowjob” proposition only at the family meeting convened by CB.

75     CM also admitted and confirmed what the complainant had told the court that the reason why the victim did not confide in CM was because CM would not believe her.

76     In sum, I found that the prosecution had proven all elements of both offences beyond a reasonable doubt so I convicted the accused accordingly.

Antecedents

77     The accused was untraced.

The prosecution’s submissions on sentence

78     The Prosecution submitted for a global sentence of 6 months and 2 weeks’ imprisonment to 7 months and 3 weeks’ imprisonment as an appropriate sentence. In sum, the following sentences were proposed by the prosecution:

Charge number

Provision

Prosecution’s position on sentence

MAC 902980-2023

(First charge)

Section 354 (1) of the Penal Code

6-7 months’ imprisonment

(Consecutive)

MAC 902981-2023

(Second charge)

Section 377BA of the Penal Code 1871

2-3 weeks’ imprisonment

(Consecutive)

Proposed global sentence

6 months and 2 weeks’ imprisonment to 7 months and 3 weeks’ imprisonment



79     For the first charge, the prosecution highlighted that the sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v PP and another appeal [2018] 4 SLR 580 was to be applied. Under the two-step framework, the first step was for the court to consider offence-specific factors. These factors were (1) the degree of sexual exploitation, including where the victim was touched, how she was touched and the duration of the outrage of modesty; (2) the circumstances of the offence, including the presence of premeditation, the use of force, the abuse of trust, the use of deception, exploitation of a vulnerable victim and other aggravating acts; and (3) the harm caused to the victim, including physical or psychological harm.

80     For the second step, the court would consider the offender-specific aggravating and mitigating factors. This would include (1) the number of charges taken into consideration for purpose of sentencing; (2) relevant antecedents; (3) timely plea of guilt and (4) the presence of a mental or intellectual disability. The court would make an upward or downward adjustment to the sentence as appropriate.

81     Based on the offence-specific factors, the court would ascertain which band would the offence fall under:

Band

Offence specific aggravating factors

Sentencing range

1

None or at most one aggravating factor. This typically involves cases with a fleeting touch, or touch over the clothes or no intrusion into private parts.

Less than 5 months’ imprisonment

2

Two or more aggravating factors. Lower end of the band includes touching victim’s private parts but over clothes. High end of band included skin to skin contact with victim’s private parts.

5 to 15 months’ imprisonment

3

Multiple aggravating factors, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim.

15 to 24 months’ imprisonment



82     Th prosecution submitted that the present case fell under the lower end of Band 2 as there was a moderate degree of sexual exploitation, the accused had breached the trust that the complainant had in him and the complainant was affected by the accused’s offence as she had cried when recounting the incident to CS and she testified that she felt uncomfortable and disgusted by the incident.

83     As the accused had claimed trial and showed no remorse, he was not entitled to a sentencing discount. In calibrating the sentence, the prosecution also referenced to 3 reported decisions where sentences of 18 weeks to 5 months’ imprisonment were meted out. These were PP v Rosman bin Jaafar [2019] SGMC 56, PP v Goh Eng Chin [2018] SGMC 17 and PP v Raschel Md Asadujjaman [2018] SGMC 51. Here, the present case involved abuse of trust unlike the 3 cited cases. Hence, there should be an uplift to 6-7 months’ imprisonment.

84     As for second charge, the prosecution submitted that 2-3 weeks’ imprisonment would be appropriate. There is no applicable sentencing framework for offences under section 377BA. The court was asked to consider aggravating factors similar to those under section 354(1) offences as per Kunasekaran framework.

85     The accused had propositioned his much younger stepdaughter and he had claimed trial and showed no remorse. In PP v Tan Chee Beng [2023] SGHC 93 (“Tan Chee Beng”), the offender was sentenced to 1 week’s imprisonment. Here, there should be an uplift in the sentence as the complainant was the accused’s stepdaughter.

Mitigation

86     The Defence submitted that that the appropriate sentence was as follows:

Charge number

Defence’s proposed sentencing

MAC 902980-2023

(First charge)

4 months’ imprisonment

(Consecutive)

MAC 902981-2023

(Second charge)

1 week’s imprisonment

(Consecutive)

Total sentence

4 months and 1 week’s imprisonment



87     The defence also applied the Kunasekaran framework except that the present case fell under higher end of Band 1 because the touch was fleeting, there was no skin on skin contact and there was no intrusion of the private parts but there was abuse of position of trust. Hence, the starting point would be 4 months’ imprisonment. The defence also acknowledged that the accused would not be entitled to a sentencing discount.

88     According to the defence, imprisonment terms of up to 2 weeks were most frequently meted out for the section 377BA offences. Here, the accused’s actions were not prolonged, so 1 week’s imprisonment was appropriate.

Sentencing

First charge

89     Under section 354(1) of the Penal Code, the punishment prescribed by law is a sentence of imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.

90     I agreed with the prosecution that the present case fell under lower end of Band 2 in view of three aggravating factors. Here, there was a moderate degree of exploitation in that his actions were deliberate as he had repeated the motion of grinding his penis against the complainant’s buttocks for a few seconds. He knew that the complainant was in a vulnerable position in that she was unable to see his penis as she was lying down face down.

91     As rightly pointed out by the prosecution, the accused abused the position of trust as the complainant’s stepfather. It was clear that she trusted him and even addressed him as “Papa”. At the time of the offence, she was much younger than the accused in that she was about 16 years old.

92     The accused also knew that since both of them shared a close relationship, there was a strong likelihood that she would not report the wrongdoing. The situation was made worse by CM’s disbelief in her own daughter. CM confirmed in court that she would not believe that the accused would behave in such a fashion. This made it even more difficult for the complainant to report the accused’s wrongdoing.

93     Another aggravating factor was that the offence took place in the home that the accused shared with CM and where the complainant would visit frequently. The complainant would expect her mother’s home to be a safe place but instead, she was molested by her stepfather in that home.

94     It was also evident that the victim was affected by the offence. She cried over the phone when informing CS about the offence.[note: 21] She also testified in court that she felt uncomfortable and disgusted by the accused’s actions.

95     I noted that the accused was untraced for antecedents. No sentencing discount was accorded to him as he had claimed trial. The accused did not allege that he had any mental disorder or intellectual disability. In sum, I assessed the appropriate sentence as 6 months’ imprisonment.

96     Such a sentence was also in line with prevailing decisions. For the 3 reported decisions cited by the prosecution, terms of up to 5 months’ imprisonment were imposed for situations where the offender rubbed his penis against the victim’s buttocks for a few seconds like in the present case. I agreed with prosecution that unlike these 3 cited decisions, the present case was more egregious in that the offence was committed by the accused who abused the trust that the complainant had in him as her stepfather.

Second charge

97     Under section 377BA of the Penal Code 1871, the punishment prescribed by law is an imprisonment term which may extend to one year, or with fine, or with both.

98     As for second charge, I imposed a 10 days’ imprisonment term which was higher than the 1 week’s imprisonment meted out in Tan Chee Beng. The present case was more egregious than Tan Chee Beng as the accused here abused his position of trust. Even the defence had acknowledged that the usual imprisonment term was up to 2 weeks. Therefore, the present sentence of 10 days could hardly be said to be manifestly excessive.

Total sentence

99     Both parties were in agreement that the sentences should run consecutively. As I had agreed with the parties that separate and distinct offences were committed on different occasions, the imprisonment terms were ordered to run consecutively.

Conclusion

100    For the reasons as set out above, I imposed an imprisonment term of 6 months and 10 days.

[note: 1]Agreed bundle of documents, Tab 1

[note: 2]Agreed bundle of documents, Tab 4

[note: 3]Agreed bundle of documents, Tab 1.

[note: 4]Agreed bundle of documents, Tabs 5 and 6

[note: 5]Agreed bundle of documents, Tab 9

[note: 6]Agreed bundle of documents, Tabs 7 and 8

[note: 7]NE, Day 2, page 20, lines 1-10

[note: 8]NE, Day 2, page 20, line 17 and lines 19-21.

[note: 9]NE, Day 3, page 15, line 28 to page 16, line 15

[note: 10]NE, Day 1, page 19, lines 4-5

[note: 11]NE, Day 1, page 18, lines 13-24 and page 19, lines 6-11

[note: 12]The prosecution’s closing submissions at [25]-[29]

[note: 13]NE, Day 7, page 59, lines 6-28

[note: 14]NE, Day 1, page 26, lines 4-11

[note: 15]Agreed bundle of documents, Tab 5

[note: 16]NE, Day 6, page 70, line 16 to page 72, line 26

[note: 17]Agreed bundle of documents, Tab 9, page 36

[note: 18]Agreed bundle of documents, Tab 6, page 22

[note: 19]Agreed bundle of documents, Tab 6, page 19

[note: 20]Agreed bundle of documents, Tab 8, pages 30-35

[note: 21]NE, Day 2, page 27, lines 25-27

"},{"tags":["Criminal law – Statutory offences – Section 7 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor’s lips","Criminal law – Statutory offences – Section 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor and touching her breasts and vagina – Licking a minor’s vagina – Rubbing an accused person’s penis against a minor’s vagina – Making a minor masturbate the accused person","Criminal law – Statutory offences – Section 7(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Masturbating in front of a minor and making her masturbate the accused person","Criminal law – Statutory offences – Section 376A(1)(a) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Penile penetration of a minor’s vagina","Criminal law – Statutory offences – Section 376A(1)(b) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Digital penetration of a minor’s vagina","Evidence – Proof of evidence – Sexual offences by accused person based on a minor’s sole evidence – Whether the minor’s evidence is unusually convincing"],"date":"2024-10-09","court":"District Court","case-number":"District Arrest Case No 909117 of 2021","title":"Public Prosecutor v JDC","citation":"[2024] SGDC 192","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32293-SSP.xml","counsel":["DPPs Santhra Aiyyasamy, Janessa Phua, Chee Ee Ling for the Prosecution","Steven John Lam Kuet Keng and Kenrick Lam (Templars Law LLC) for the Accused."],"timestamp":"2024-10-15T16:00:00Z[GMT]","coram":"Kow Keng Siong","html":"Public Prosecutor v JDC

Public Prosecutor v JDC
[2024] SGDC 192

Case Number:District Arrest Case No 909117 of 2021
Decision Date:09 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): DPPs Santhra Aiyyasamy, Janessa Phua, Chee Ee Ling for the Prosecution; Steven John Lam Kuet Keng and Kenrick Lam (Templars Law LLC) for the Accused.
Parties: Public Prosecutor — JDC

Criminal law – Statutory offences – Section 7 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor’s lips

Criminal law – Statutory offences – Section 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor and touching her breasts and vagina – Licking a minor’s vagina – Rubbing an accused person’s penis against a minor’s vagina – Making a minor masturbate the accused person

Criminal law – Statutory offences – Section 7(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Masturbating in front of a minor and making her masturbate the accused person

Criminal law – Statutory offences – Section 376A(1)(a) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Penile penetration of a minor’s vagina

Criminal law – Statutory offences – Section 376A(1)(b) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Digital penetration of a minor’s vagina

Evidence – Proof of evidence – Sexual offences by accused person based on a minor’s sole evidence – Whether the minor’s evidence is unusually convincing

9 October 2024

District Judge Kow Keng Siong:

Introduction

The parties

1       The Accused (D.O.B.: 8 July 1973) is a primary school teacher. He is charged with having committed various sexual offences against the Victim (D.O.B.: 1 December 1994), his former student.

The Charges

2       The charges are under the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”) and the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (collectively “Charges”). The details of these charges are as follows:

Charge

Offence

Time of offence

Nature of offence

Location of offence

1st Charge

DAC 909117 2021

S 7 CYPA

2007

Victim: 12 – 13 years old

Accused kissed the Victim’s lips

Accused’s car (“Car”)

2nd Charge

DAC 909118 2021

S 7(a) CYPA

2008

Victim: 13 – 14 years old

Accused kissed the Victim and touched her breasts and vagina (over her clothes)

Car

3rd Charge

DAC 909119 2021

S 7(b) CYPA

2008

Victim: 13 – 14 years old

Accused attempted to procure the commission of an obscene act – by masturbating himself in front of the Victim and asking her to masturbate him

Car

4th Charge

DAC 909120 2021

S 7(a) CYPA

2008

Victim: 13 – 14 years old

Accused licked the Victim’s vagina

Accused’s flat (“Flat”)

5th Charge

DAC 909121 2021

S 7(a) CYPA

2009

Victim: 14 – 15 years old

Accused rubbed his penis against the Victim’s vagina (skin-on-skin)

Flat

6th Charge

DAC 909122 2021

S 7(a) CYPA

2009

Victim: 14 – 15 years old

Accused made the Victim masturbate him

Void deck of a HDB block near the Flat (“Block 492D”)

7th Charge

DAC 909123 2021

S 376A(1)(b) r/w s 376A(2) Penal Code

2009

Victim: 14 – 15 years old

Accused penetrated the Victim’s vagina with his finger

Block 492D

8th Charge

DAC 909124 2021

S 376A(1)(a) r/w s 376A(2) Penal Code

Between 12.11.10 and 30.11.10

Victim: 15 years old

Accused penetrated the Victim’s vagina with his penis

Flat



3       At the end of a trial, I convicted the Accused on all eight charges. These are my reasons for the convictions.

Undisputed facts

4       I begin with the undisputed facts.

(a)     The Accused and the Victim were in a romantic relationship.

(b)     During the relationship, they had engaged in various sexual acts. These included penile-vaginal penetration.

(c)     The relationship came to light on 13 June 2017 when the Victim’s sister (“VS”) accidentally discovered three videos (exhibit P3) that the Victim had made in June 2012 (“Videos”).

(d)     The Videos lasted about 13 minutes in total.

(i)       They showed the Victim speaking into a camera in a monologue. She spoke about her internal struggles concerning her relationship with the Accused and her intention to break up with him. She was emotional and crying in the Videos.

(ii)       The Victim made the Videos because she had no one to confide to. She did not want to disclose the relationship to others for fear of getting the Accused into trouble.

(iii)       The Victim did not send the Videos to the Accused. She had in fact forgotten about them until they were discovered by VS.

Disputed facts

Prosecution’s case

5       According to the Victim –

(a)     The romantic relationship started in September 2006 when she was in Primary 6 (11 years old).

(b)     The sexual acts began very soon thereafter. They started with kissing when the Victim was 12 to 13 years old (2007) – and gradually escalated to groping, masturbation, and digital-vaginal penetration. Just before the Victim’s 16th birthday (2010), the Accused engaged in penile-vaginal penetration with her.

Accused’s case

6       According to the Accused –

(a)     The relationship began much later – only in May 2011, i.e., after the Victim had turned 16. That was when they had become “friends with benefits” (the Accused’s own words). These “benefits” included kissing, groping, and groin-to-groin rubbing. The first time that the Accused engaged in penile-vaginal penetration with her was in January/February 2012 (after she turned 16).

(b)     The Accused denied (i) having touched the Victim’s breasts and (ii) having digitally penetrated her vagina.

(c)     The Victim was a manipulative and domineering person.[note: 1]

Key issues for determination

7       It is not disputed that the Victim’s evidence, if believed, will prove that the Accused had committed the relevant offences in the Charges.

8       The key issue before me is whether the Victim’s evidence should be believed. Specifically, did she tell the truth regarding the following matters (“Key Issues”):

(a)     That the relationship with the Accused had begun when the Victim was in Primary 6 (2006)?

(b)     That he had committed the sexual acts described in the Charges before she turned 16?

9       In answering these questions, I am mindful that while the Prosecution had tendered “voluminous conversation records and exhibits” at the trial, such evidence was not generated at the time of the relevant incidents stated in the Charges. Ultimately, the whole case boils down to the Victim’s words against the Accused’s.[note: 2]

Applicable principles

10     It is well settled that in determining whether it is safe to convict based on incriminating evidence of a sole witness, a court must consider the following:

(a)     Is the evidence “unusually convincing”? For the considerations relevant to this assessment, see Public Prosecutor v Liang An Wey [2023] SGDC 231 at [65] – [68].

(b)     If the sole witness’s evidence is not “unusually convincing”, then the following issues must be addressed:

(i)       Which aspect of the witness’s evidence is unsatisfactory?

(ii)       Does such evidence create a reasonable doubt in the Prosecution’s case?

(iii)       If the answer is yes, then is there any evidence to support the unsatisfactory aspect of the witness’s evidence?

(iv)       Finally, if supporting evidence is available, then is the Prosecution’s case proven beyond reasonable doubt if such evidence is taken together with the witness’s evidence?

My decision

Victim’s evidence

11     In my view, the Victim’s evidence is unusually convincing. My reasons are as follows.

(a)      Evidence is internally consistent. I found that the Victim had remained coherent and consistent on the Key Issues. This is so despite intense cross-examination. In coming to this finding, I was mindful that there were some minor discrepancies between the Victim’s testimony and her police statement (exhibit D2). In my view, these discrepancies can be attributed to the fact that when the statement was being recording (2017), the Victim was asked to recall events that had taken place some seven years (2010) to 10 years (2007) ago. Such a long passage of time will understandably cause some memory – especially those relating to matters of lesser importance to the Victim – to fade. I note that the Defence did not make an issue with the discrepancies in the Victim’s evidence.

(b)      Evidence is textured. On the Key Issues and matters that were important to the Victim, I found that her evidence had gone beyond bare assertions. The details that she had provided regarding these issues and matters added to the overall credibility of her evidence. One example involves the 8th Charge. The Victim provided the following explanation as to why she was certain that the Accused had penetrated her vagina with his penis before she turned 16:

[…] I always told him not to put his penis in my vagina. So, when---when I reached out and I realised; that was when it really hurt me, because since I was in Sec 1 now, I couldn’t stop any of his sexual advances. … that was like my last, if I might say, it was the last thing I could protect for myself, so that’s why I told him not to insert his penis into my vagina. And that’s why when I realised, I was really shocked. So I […] ask him and say, “Why, why did you---why did you put your penis in my vagina?” Like, “Did you realise it?” […] I remember him walking into his study room casually, and just coming out and just asking me, “Have you turned 16 yet?” And in that moment, I remembered ask---answer him, I said “No.” […] But at that point of time, he asked, you know, I turned 16, and I didn’t understand the significance of it. And because I didn’t understand the significance of it, that’s why I remember it till now.[note: 3]

[emphasis and text in square brackets added]

For other examples where the Victim had provided details to support her evidence on the Key Issues, see [18] to [39] below (discussion on “Specific findings”).

(c)      Fair witness. I have found the Victim to be a fair witness. Her evidence was measured and not one-sided. When questioned on matters that she was not sure about, the Victim would readily say so.

(d)      No motive to lie. There is no evidence to suggest that the Victim had a motive to falsely incriminate the Accused. In fact, the following undisputed evidence debunks any such suggestion.

(i)       The Victim was not the one who had exposed the relationship. The expose was by VS – she had stumbled upon the relationship after discovering the Videos accidentally in 2017.

(ii)       After the relationship came to light, the Victim had begged her family not to report the Accused to the police.[note: 4] She had wanted to marry him and did not mind being his second wife.

(iii)       The only reason why the police report was lodged is because of the Victim’s parents. When VS and the Victim approached them about the Accused marrying the Victim, their parents had refused to give their blessing. They were angry that he had taken advantage of the Victim from a young age and had wanted him to be dealt with in accordance with the law.

(e)      Detriment to the Victim. The Victim had much to lose by maintaining her evidence on the Key Issues.

(i)       In so doing, she had exposed herself to the ordeal and embarrassment of being cross-examined about her sexual acts with the Accused.

(ii)       I believed the Victim when she testified about her fear that with the disclosure of her sexual acts with the Accused, people would be embarrassed to be her friend.

(iii)       Importantly, by the time of the trial, the Victim had already married and had a child. She was concerned that her child would be disappointed to have a mother like her if it knew about her evidence in court.

(f)      Testimony supported by other evidence. The Victim’s testimony regarding the Key Issues is also supported by various pieces of evidence. Such evidence includes (i) her WhatsApp messages with the Accused (Annex A) and (ii) the Videos. These pieces of evidence could not have been fabricated – they were generated contemporaneously, over many years, and long before the 2017 police report against the Accused.

12     Despite the above, the Accused contended that the sexual acts could not have occurred during the time periods stated in the Charges (“Contention”). I disbelieved his Contention.

(a)     According to the Accused, these time periods conflicted with the timings of his work and domestic commitments at the material time.[note: 5] I am not persuaded by the Contention. It is not disputed that the Contention was made without the assistance of any diary or other documentary record from the material time. In the circumstances, I find it unbelievable that the Accused –

(i)       could recall purely from memory the timings of his work and domestic commitments from some 13 years (2010) to 17 years (2006) before the trial (2023), and

(ii)       could be so certain that he did not have any free time whatsoever during the relevant period to meet the Victim.

(b)     The Accused’s wife (“Wife”) had also given evidence to support the Contention. I gave very little weight to her evidence.

(i)       According to the Accused’s own case, he was able to keep his relationship with the Victim a secret from the Wife for many years (from 2011 to 2017).[note: 6]

(ii)       It is also not disputed that the Wife was not present when the Victim met the Accused at the Flat,[note: 7] and when the sexual acts were committed (be it in the Flat or in the Car).

Given the above, the Wife would not be able to testify conclusively on the Key Issues.

Accused’s evidence

13     In contrast to the unusually convincing evidence of the Victim, I find the Accused to be an evasive witness whose evidence is inconsistent, self-serving, and unbelievable. During the trial, there were several major shifts in his evidence. The Accused had also displayed selective memory and given illogical excuses when probed on details of his defence. (See [23] and [30] below for further details.)

The Statements

Admission of the Statements

14     Importantly, the Accused’s defence (as summarised in [6] above) is materially contradicted by investigation statements recorded from him on 28 July 2017 (“28 July statement”) and on 29 July 2017 (“29 July statement”) (collectively, “Statements”). According to the Statements:[note: 8]

(a)     The Accused had romantic feelings for the Victim beginning in 2006 (i.e., when she was about 12 years old): see [19(c)] below.

(b)     When the Victim was in secondary school, the Accused would meet her at the Bedok Reservoir after her school commitments had ended: see [23(c)] below.

(c)     The Accused had performed sexual acts with the Victim when she was in Secondary 1 to 3 (i.e., before she turned 16): see [23(c)] below.

(d)     These acts included digital penetration of the Victim’s vagina: see [34(b)] below.

15     The Defence submitted that the Accused did not give the Statements voluntarily and they should thus be rejected. This submission was based on the following evidence by the Accused.

(a)     First, the recorder, ASP Alvin Chua (“ASP Chua”) had allegedly told the Accused the following when recording the 28 July statement:[note: 9]

(i)       The Accused was not to lie and was to tell him (i.e., ASP Chua) what he wanted to know (“Representation 1”).

(ii)       If the Accused refused to comply, ASP Chua would disbelieve him, and he (the Accused) would be looking at imprisonment of 10 years or more (“Representation 2”).

(iii)       The Accused should not make life hard as the Victim did not want to press charges (“Representation 3”).

(iv)       ASP Chua would be nice to the Accused if he believed him (“Representation 4”).

(b)     After the 28 July statement was recorded, ASP Chua told the Accused that he had better say something more or else he would be in bigger trouble (“Representation 5”).

(c)     ASP Chua then deliberately kept the Accused in the lockup for almost 18 hours. This was to increase the discomfort to the Accused before recording a further statement from him (i.e., the 29 July statement) (“Claim A”).

(d)     The Accused was depressed and distressed when the Statements were recorded. ASP Chua’s words – together with the long delay between the recording of the 28 July and 29 July statements – rendered these statements involuntary (“Claim B”).

(e)     Finally, the fact that the Accused was mentally frail when the Statements were recorded is supported by the fact that he had broken down during the trial and had to be admitted to hospital on several occasions.[note: 10] (“Claim C”)

16     I disbelieved the Accused’s evidence. My reasons are as follows.

(a)      Representation 1. ASP Chua testified that in general, he would have advised all his accused persons to tell the truth – and that he would have asked the Accused to say everything that he had wanted to say regarding the allegations.[note: 11] I accepted ASP Chua’s evidence. It is settled law that words such as “you had better tell the truth” – on their own – do not amount to a threat, inducement, promise or oppression. Whether such words would have this effect is to be assessed in the context of the individual case: Lim Thian Lai v Public Prosecutor [2006] 1 SLR(R) 319 at [18]. In the present case, there is no reason why ASP Chua’s mere reminder to the Accused to tell the truth would have rendered the Statements involuntary.

(b)      Representation 2 to Representation 5. ASP Chua denied having made Representation 2 to Representation 5.[note: 12] He explained that there was no reason for him to do so.[note: 13] With regards to Representation 5 specifically, ASP Chua testified that he would have told the Accused that the statement recording was not completed, and that he would thus have to continue with the recording the next day.[note: 14] I believed ASP Chua’s explanation.

(i)       He impressed me as a credible witness.

(ii)       Further, regarding Representation 5, the following bears noting.

(1)       The 28 July statement recorded the Accused’s relationship with the Victim from the time she was in Primary 6 through to her secondary school years. On the face of the statement, its purpose appears to be to record his account of what had happened during this period of the relationship. ASP Chua did not seek any clarification on the Accused’s account. The statement ended when it was the Accused’s dinner time.

(2)       The 29 July statement continued with where the 28 July statement had left off – i.e., after the Victim had left secondary school. It recorded the Accused’s account of the relationship after the Victim entered the polytechnic. From a perusal of the 29 July statement, it is evident that it was only after the Accused had completed providing his account of the relationship with the Victim that ASP Chua then sought clarifications on this account.

(3)       From the above, the 28 July statement and 29 July statement clearly covered different areas, and that the recording of the 29 July statement was not – as the Accused had suggested – to get him to change his account in the 28 July statement or to provide more incriminating evidence.

(iii)       ASP Chua’s denial of having made Representations 1 to 5 was corroborated by the interpreter for the Statements, Ms Maria bte Bazid (“Ms Maria”). According to her, if ASP Chua had threatened the Accused, she would have told her supervisor and made a record of this. Ms Maria testified that she did not make any such record in the Accused’s case. I saw no reason to doubt Ms Maria’s evidence.

(ii)       For completeness, even if Representation 2 to Representation 5 had been made, I am of the view that they did not objectively constitute a threat, inducement, or promise. I hold this view for the following reasons.

(1)       It is not entirely unclear from these representations what exactly the Accused was supposedly being induced to do. If ASP Chua’s intention was simply for him to tell the truth, then this is not objectionable per se: see [16(a)] above.

(2)       Objectively, the representations would not have given the Accused any reasonable ground for supposing that he would gain some advantage or would avoid some evil or of a temporal nature to himself: Gulam bin Notan Mohd Shariff Jamalddin v Public Prosecutor [1999] 1 SLR(R) 498 at [53]; Roshdi bin Abdullah Altway v Public Prosecutor [2022] 1 SLR at [68] and [69]. For instance, it is unclear from the representations what ASP Chua would do to the Accused specifically if the latter did not tell the truth.

(c)      Claim A. I did not find anything sinister with the 18-hour break between the recording of the 28 July statement (ended at 7.07 pm) and the 29 July statement (commenced at 2.53 pm). ASP Chua had given a reasonable explanation for the break – i.e., (i) to give the Accused time to rest and (ii) for ASP Chua to attend to other matters relating to the case.[note: 15]

(d)      Claim B. ASP Chua testified that at all material times, there was nothing to suggest to him that the Accused was distressed or unwell. If there were such signs, he would have stopped the statement recording and referred the Accused to a doctor.[note: 16] ASP Chua’s evidence was corroborated by Ms Maria.[note: 17]

(e)      Claim C. In my view, the Accused’s admissions to hospital during the trial (in 2023/2024) did not prove that he was mentally susceptible to pressure during the recording of the Statements (in 2017). The Defence’s attempt to link these two matters is entirely speculative.

(i)        First, there is a gap of about six to seven years between the admissions to hospital and the recording of the Statements.

(ii)        Second, no evidence was adduced to show that the Accused had suffered anxiety attacks or depression when the Statements were recorded (2017). This is significant as the Accused was someone who had no hesitation in seeking medical attention for his mental health condition. I say this because a medical report from Changi General Hospital dated 24 August 2023 (“Medical Report”) shows that he was seen from November 2012 to December 2014, September 2022, and March 2023 for depression and anxiety attacks. These dates coincided with the following stressful events to the Accused:

(1)       Work stress from the Accused’s principal (from 2011),[note: 18] grieving following the demise of the Accused’s father (from end 2012),[note: 19] as well as two occasions when the Wife encountered the Victim in the Flat (2012 and 2014).[note: 20]

(2)       The Accused’s case was undergoing Criminal Case Disclosure Conferences (September 2022).

(3)       The Accused was under cross-examination during the trial (March 2023).

(iii)        Finally, and in any event, it is evident from the Statements that the Accused did not admit to the Victim’s account on the Key Issues. The Accused testified that during the statement recording, he had hit the table with his hands and challenged ASP Chua to just charge him.[note: 21] Such evidence shows that the Accused was not afraid to insist on the correctness of his own account on the Key Issues. This evidence is inconsistent with the Defence’s case that the Accused was so mentally weak as to have given the Statements involuntarily or under oppression.

Specific findings

17     I will now state my findings on other matters that have arisen during the trial and in submissions.

Romantic relationship started when the Victim was in Primary 6

18     The Victim and the Accused had given divergent accounts as to when, and how, their relationship had begun.

(a)     According to the Victim, sometime in 2006, the Accused had passed her a piece of paper containing his phone number in the school library. She became close to him soon thereafter because they often chatted on MSN. On 6 September 2006, while they were alone in the school’s computer lab, the Accused showed her a piece of paper. It contained the words, “I love you”, in Malay. Later that same day, the Accused asked her to be his girlfriend over a phone call.[note: 22]

(b)     On the other hand, the Accused testified that the relationship began only in March 2011 – after the Victim had turned 16. This occurred during a meeting at Bedok Reservoir, when he had instinctively grabbed her hands while comforting her over her family problems.[note: 23]

19     I believed the Victim’s evidence that the relationship had begun in 2006 when she was in Primary Six. This evidence is supported by several pieces of evidence, including the following:

(a)     On 6 September 2013, the Victim had sent the following message to the Accused:

Oh anyway since today is 6th September, it’s exactly 7 years since you confessed to me, so happy 7th, my dear.[note: 24]

[Emphasis added]

The message alludes to a “confession” that the Accused had made to the Victim seven years before 6 September 2013. This meant that the “confession” would have been made on 6 September 2006. This is consistent with the Victim’s evidence summarised in [5] above.

(b)     In the Videos, the Victim stated that their romantic relationship had begun when she was in Primary 6 (2006):

You know it’s funny how I realised that I was stupid …, to have made the decision like to agree … like to be with you from the beginning cause like I find myself very naïve and it was in Primary Six [wipes tears] so that I find that everything was in a rush. …

[emphasis added][note: 25]

(c)     In the Statements, the Accused admitted that when the Victim was in Primary 6 (2006), he had felt a “special feeling” when he stood close to her from behind – it was akin to “hugging her from behind at close proximity”.[note: 26]

(d)     There are numerous messages in exhibit P18 – sent in 2011 and 2012 between the Accused and the Victim – which alluded to the two of them having been in a relationship for “years”. For some of these messages, see Annex A.

20     I will now explain why I believed the Victim’s evidence that the Accused had performed the sexual acts as stated in the Charges before she turned 16.

1st to 3rd Charges – Kissing, touching and masturbation in the Car

21     I start with the 1st to 3rd Charges. The Victim gave the following evidence:

(a)      1st Charge. When the Victim was in Secondary 1, the Accused had frequently brought her to a secluded place where there was pond with turtles in it. This was so that they could meet in privacy. During one such outing in 2007, the Accused gave the Victim her first kiss.[note: 27]

(b)      2nd and 3rd Charges. In Secondary 2 (2008), the Victim had canoeing practices at Bedok Reservoir. After the practices had ended, she would spend time with him in the Car. On these occasions, the Accused would kiss her, as well as touch her breasts and vagina (over her clothes). The Victim did not resist because she was too tired after her canoeing practices. The Accused would also masturbate himself. There were times when he would ask the Victim to help him masturbate as well, but she would refuse.

22     I found the Victim’s evidence to contain a ring of truth. It contained a lot of details on peripheral matters. These details – which enhanced the credibility of the Victim’s evidence – include the following:

(a)      1st Charge. The Victim could recall her first kiss because it was an unpleasant and unexpected experience. During the kiss, the Accused had put his tongue into her mouth. She was put off by the “taste” and wanted to gag.[note: 28]

(b)      2nd Charge. The Victim could recall that she was in Secondary 2 when the Accused began touching her breasts and vagina in the Car at Bedok Reservoir. This is because the Accused had commented that she smelled good despite her being sweaty after her canoeing practices.

(c)      3rd Charge. The Victim could also recall that he had performed the sexual acts in 2008 after one of her religious classes. This is because these classes were in 2008.

23     In contrast, I found the Accused’s evidence regarding the 1st to 3rd Charges to be highly unsatisfactory.

(a)     During the trial, the Accused gave conflicting evidence on whether he had met the Victim at Bedok Reservoir while she was in secondary school.

(i)       Initially, the Accused accepted that such meetings had taken place. In fact, he gave extensive evidence regarding these meetings during the trial in March 2023. According to him, they took place in the afternoons – whenever they were both available. During these meetings, he had sat in the driver’s seat while the Victim sat at the rear passenger seat. When asked why they would have chat in such a “weird configuration”, the Accused explained that “it was the appropriate thing to do” – in case passersby misunderstood what the two of them were doing in the Car.[note: 29]

(ii)       However, during the trial in August 2023, the Accused completely denied having ever met the Victim at Bedok Reservoir when she was in secondary school. He testified that such meetings were “not possible” because of his work and domestic commitments at the material time.[note: 30]

(b)     The Accused had failed to provide a satisfactory explanation for this dramatic shift in his evidence. In my view, this shift occurred because the Accused had realised (belatedly) that by admitting to the meetings at Bedok Reservoir, he had in fact corroborated the Victim’s evidence that the sexual acts had occurred during such meetings.

(c)     The Accused’s denial of the 1st to 3rd Charges is also contradicted by the 28 July statement. In this statement, he had stated the following:

(i)       When the Victim was in Secondary 1 (2007), the Accused began kissing and hugging her, and groping her private parts and breasts over her clothing.[note: 31]

(ii)       When the Victim was in secondary school, the Accused had met her in the Car at Bedok Reservoir. During these meetings, the Victim was sweaty and did not want him to smell her sweat.[note: 32]

4th Charge – Licking the Victim’s vagina

24     I now come to the 4th Charge.

25     The Victim testified that the Accused had licked her vagina when she was in Secondary 2 (2008). This happened in the Flat.

26     According to the Accused, such an act did not take place until 2011.

27     I found the Victim’s evidence regarding the timing of the incident to be more credible.

(a)     The Victim had given convincing reasons as to why she could recall this incident vividly.

(i)        First, the Accused had sent her a message that his “hands were tied” and that she was to take a taxi to the Flat. At the material time, she had genuinely believed that the Accused “was in trouble”.

(ii)        Second, that occasion was (1) the first time that she had taken a taxi on her own, (2) the first time that she visited the Flat, and (3) the first time that the Accused licked her vagina. She remembered being in PE shirt at the material time and not knowing how to react to the sexual act.[note: 33]

(iii)        Third, the Accused had reprimanded her for disclosing his unit number to the taxi driver, and for greeting him too loudly as she entered the Flat. The Accused was upset because he did not want his neighbours to be alerted to her presence in the Flat.

(b)     The Victim testified that she began cutting her left wrist with a penknife in Secondary 2 – the same year as the incident in the 4th Charge. The Victim explained that she had done so because she felt powerless in resisting the Accused’s sexual advances. When the Victim responded to the Accused’s sexual advances by curling up, he would (i) scream at her for not complying, (ii) accuse her of liking other guys, and (iii) then uncurl her body. At times, the Accused would even “go crazy” by kicking and throwing things in the Flat. The Victim’s evidence that she had cut herself is corroborated by a photo (exhibit P24). It shows faint marks of what appear to be old wounds on the Victim’s wrist.

5th Charge – Rubbing of penis against the Victim’s vagina

28     I next turn to the 5th Charge. The Accused admitted that he had rubbed his penis against the Victim’s vagina (skin-to-skin). He however disputed the Victim’s evidence that the act had occurred in 2009. According to the Accused, the act took place only after the Victim had turned 16 (in 2010).

29     In my view, the Victim was telling the truth. Her evidence on the 5th Charge is clear and consistent.

30     In contrast, the Accused’s evidence is highly unsatisfactory.

(a)     During the trial in March 2023, the Accused expressly stated that he had begun rubbing his “crotch” against the Victim’s “vagina” skin-on-skin in December 2011.[note: 34]

(b)     During the trial in August 2023 however, the Accused testified that the Victim “wears jeans all of the time” and therefore he had “never been able to touch skin-on-skin on her […] until 2012”.[note: 35]

(c)     When confronted with his inconsistent evidence above, the Accused testified that he could not recall when he had first start rubbing the Victim’s private parts skin-on-skin.[note: 36]

6th and 7th Charges – Digital penetration and masturbation at Block 492D

31     I now turn to the 6th and 7th Charges.

32     According to the Victim, there were occasions in 2009 when she had met the Accused in the evenings at a raised concrete well at Block 492D. (She did not meet the Accused in the Flat because the Accused’s wife and children were at home.) On some of these occasions, the Accused and the Victim had climbed into the well. In the well (which was dark), the Victim helped the Accused to masturbate. He had also digitally penetrated her vagina.

33     The Accused denied having engaged in digital-vaginal penetration with the Victim. He also denied having performed any sexual act at Block 492D.

34     I preferred the Victim’s evidence.

(a)     I find the location and circumstances in which the sexual acts in the 6th and 7th Charges had taken place to be highly unusual. If the Victim had wanted to falsely implicate the Accused, she would have conjured a simpler story – e.g., that the acts had taken place in the Car. The unusualness of her account lent weight to its credibility.

(b)     Furthermore, the Accused’s denial of having digitally penetrated the Victim’s vagina is contradicted by the 28 July statement. In that statement at [11] and [12], he had admitted to having rubbed her vagina with his fingers while she was in Secondary 2 (2008) or Secondary 3 (2009).

8th Charge – Penile-vaginal penetration

35     Finally, I come to the 8th Charge.

36     The Victim gave the following evidence.[note: 37]

(a)     For a period prior to her 16th birthday, the Accused had been rubbing his penis against her vagina (skin-on-skin). She had insisted that the Accused was not to insert his penis into her vagina. The Victim had wanted to keep her virginity until she got married.

(b)     Despite her insistence, the Accused penetrated her vagina with his penis sometime after her O levels examinations (12 November 2010) but before her 16th birthday (1 December 2010). This occurred in the Flat. At the material time, the Accused had been rubbing his penis against her vagina. At some point, she felt pain in her vagina. When the Victim touched her vagina, she discovered that the Accused’s penis was in it.

(c)     The Victim was very upset with what the Accused had done. She asked him whether he had knowingly penetrated her and why. In response, the Accused casually asked whether she had turned 16 yet. She replied no.

37     The Accused, on the other hand, claimed that he had penile-vaginal penetration with the Victim only in January or February 2012 (after his father’s passing in December 2011) – i.e., when she was 17 to 18 years old.[note: 38]

38     I believed the Victim. Her evidence that the Accused had penile-vaginal penetration with her before her 16th birthday is materially supported by the following message that she had sent to the Accused. (This message was sent on 26 June 2011[note: 39] – i.e., before the date which the Accused claimed that the penetration had taken place):

Dah. Stop saying f. I feel so.. Nvm la.. What's it to you anyway. You don't care bout me being a v what right. To you , my pride don’t count.

[Emphasis added]

The Victim explained that “v” meant “virgin” and “pride” referred to her “virginity” – something that she valued. According to the Victim, the message conveyed her sense of worthlessness after having lost her virginity to the Accused out of marriage.[note: 40]

39     Before concluding, I wish to address a few matters raised by the Defence.

Delay in reporting

40     The first is their submission that I should disbelieve the Victim’s evidence on the Key Issues because the police report against the Accused was lodged only in June 2017 – i.e., about seven years after the last of the sexual acts had taken place in 2010.[note: 41]

41     I am unable to agree with this submission. As a matter of principle, a delay in reporting does not necessarily mean that the Victim’s evidence on the Key Issues is a recent fabrication. One needs to look at the circumstances and reasons for the delay: Public Prosecutor v Tan Chee Beng [2023] SGHC 93 at [127].

42     In this case, I am satisfied that the delay did not undermine the credibility and reliability of the Victim’s evidence. Let me explain.

(a)     The Victim was only 12 to 13 years old when the Accused first approached her to be his girlfriend: see [18(a)] above. As a young and impressionable child, it is not surprising that the Victim did not suspect that anything was amiss. As the High Court had noted in Public Prosecutor v Yue Roger Jr [2019] 3 SLR 749:

31    … While the average adult may be expected to react in a particular way – for example, to resist, report or complain about an assault as soon as possible – a child or juvenile cannot be expected to always react similarly. The thinking process, assumptions and viewpoint of a child or juvenile victim may lead to a course of action that may on its face appear unreasonable or improbable to an adult. However, the court must always be mindful of the reasons behind what may seem like unexpected conduct on the part of a child or juvenile victim, and should not measure a child or juvenile by adult standards.

31    … A child or juvenile is by definition immature, and should not, in the absence of evidence showing otherwise, be held to the measure of an adult. The thought processes and concerns of a child or juvenile may also continue to evolve and permutate as he or she matures, such that it may be some time before he or she is in a position to complain.

(b)     Apart from immaturity, there were other reasons why the Victim had wanted to keep the relationship a “secret”. She was afraid to tell her parents that she was involved with the Accused, an older man. Furthermore, she was concerned that disclosing the relationship would get him into trouble and wreck his marriage.[note: 42]

Claim that the Victim is manipulative

43     The Accused had also claimed that the Victim was the dominant party in their relationship. According to him, she had exploited his “fragile mental state” to manipulate him.[note: 43]

44     I found such evidence to be inherently unbelievable.

45      First, there is a 21-year age gap between the Accused and the Victim. At the time of the offences, the Victim was only a young child of between 12 and 15 years old. On the other hand, the Accused was much more mature – between 33 and 36 years old – and was her teacher. The Accused was clearly in a position of influence over the Victim.

46      Second, it is evident from the messages between the parties (exhibit P19) that the Accused had a habit of using abusive language and of threatening the use of violence when he was unhappy with the Victim – even over minor things. For instance, one of the messages between the parties in 2010 revealed that the Accused had chased the Victim in the Flat holding a knife because of an issue relating to his sexual advances.[note: 44] (According to the Victim, she had no choice but to arm herself with a knife from the kitchen in self-defence.) This message did not square with the portrayal of the Accused as a man who could be easily manipulated.

47      Third, there are numerous messages in exhibit P19 which disclosed that the Accused was in fact the possessive and manipulative party in the relationship. These messages included the following:

(a)     The Victim had to ask the Accused whenever she wanted to meet with her male schoolmates.[note: 45]

(b)     On one occasion, the Accused was furious when the Victim replied that it was not possible for her to comply his demand to “COME NOW!” She had to pacify the Accused even though the Accused had sent her abusive messages.[note: 46]

(c)     The Accused had also threatened to “deal with [the Victim] when the time comes” – simply because she could not accommodate his last-minute request to meet him. When the Victim counter-proposed a later meeting time, the Accused (i) replied “F!”, (ii) declared “Intergalactic war!”, (iii) accused her of being self-centred, and (iv) belittled her with derogatory remarks when the Victim told him not to be vulgar, that she wanted to end their sinful relationship, and that all the Accused are about was fulfilling his “desires”.[note: 47]

(d)     The Victim testified that she had previously tried to break up with the Accused while she was in Secondary 2 (2008) and again in Secondary 3. However, she changed her mind because the Accused had threatened to visit her at school to create a scene with the male schoolmates whom he had suspected that she was seeing. The Victim did not want her friends to get hurt.

Conclusion

48     To conclude, I find that the Prosecution had proven its case beyond reasonable doubt on the Charges and convicted the Accused accordingly.

_________________________________________________

ANNEX A

MESSAGES in 2011 and 2012

accused and victim HAD been in A RELATIONSHIP for years

S/N

Date

From/To

Message

404

11.06.11

Victim/Accused

… I'm a girl who craves for attention and being pampered by a boyfriend. I never wanted to share any love with anyone. Even if I was the third party. I'm selfish just that way. You cant change that. For years you tried to handle the love equally but I can't take it anymore. Jealousy eats out a big part of me. It's just me being selfish yet again but sigh, I cant stay on. So many restrictions to live with, how am I to survive?

[emphasis added]

635

07.07.11

Victim/Accused

… Happy advanced birthday. Year in year out I've been telling you bout your weakness. This time i give up in doing so. Live your life the way you want it. I don't wanna be part of it anymore. I lost , my bad. It's time to repent and you should start anew. …

[emphasis added]

1137

21.08.11

Victim/Accused

Oi. Dont you ever know how to reply my messages! This is what I mean when I say if I were to be with other guys then they'll be nice enough to reply me! And they reply even when im nonsensical or moody! If you think that you've put up with me for so many years, and don't wanna do it anymore, least let me know. IM A TYPICAL 17 YEAR OLD KID STILL WHEN IT COMES TO R/S! …

[emphasis added]

1871

19.12.11

Victim/Accused

You know it's just so hard to do certain things when you're so persistent on that thing. It's like even if I wanna repent or smth I can't cause you never take me seriously. My words in fact. Back in 2008, I still remember how you'd still do it despite the fact I was wearing it. Idk uh. I really wanna leave you at times. Because the situation is already so bad and like I just don't want to stay. At all.

[emphasis added]

Note. The Victim explained that in the message, she was referring to how the Accused had persisted in asking her for sexual favours (“that thing”, “still do it”) when she was wearing a tudung (“wearing it”). The message alluded to the Accused wanting sexual favours from her “[b]ack in 2008”, and to the Victim’s desire to leave him “at times” since 2008.

1872

19.12.11

Victim/Accused

Hmm, right now. I just wanna leave and be free. You know, like act my age and such. Not say go clubbing all. But just being me, like other girls, having eye candies and such without feeling so wrong. Up to you to think how you want to but what I'm trynna say is, it's as though I never felt how being single is like. It's like I'm out and I know I'm with someone but idk im actually in love with you. Sometimes I feel Like I stayed because of your stories and not my heart. Idk how to say. I know you try showering me with love and such but Idk if I feel the same way. …

[emphasis added]

1873

19.12.11

Accused/Victim

In the end it goes back to the same old you, that you need boys in your life. Because ironically, no matter what you say, it's been so long, in fact years, since I really stopped you from doing anything else. So the crux of the matter is, you can't live without boys! It's killing you!

[emphasis added]

Note. The Accused did not deny that reference in the Victim’s message that their relationship went back to 2008. Instead, his response appears to be typical of an angry lover in a “long” relationship that had gone on for “years”. I find the Accused’s claim as to why he did not correct the Victim’s reference to their long-standing relationship – namely that he did not respond to messages containing false allegations – to be unbelievable. There are numerous examples where the Accused had sent messages containing expletives and threats to the Victim over minor matters simply because he disagreed with what she had stated: see [47] above.

1875

19.12.11

Victim/Accused

Yeah yeah anything you say. So can I make my move now? Cause at the end of the day too, you'll still be you and not stop it. It's been years too.

[emphasis added]

2349

18.05.12

Victim/Accused

You know what hurts is most is that no matter how long we've been together, theres no future in us, cause you're already in that status and even then you don't wanna let me go. I mean honestly I appreciate it but it's killing me everyday. Even if you don't wanna let me go, you don't even trust. Like all these years for nothing. You go missing, you don't even text unless you're able to meet me which comes of as lust. K nvm that part, but fact is, at the end, you can't see me happy with other people. I know you can give me happiness etc but how to when you've already so much commitments in hand? Where does that leave me. FCUK how insecure I always feel.

[emphasis added]



[note: 1]Defence’s Closing Submissions dated 18 June 2024 at [5].

[note: 2]Defence’s Closing Submissions dated 18 June 2024 at [4(b)], [19] and [20].

[note: 3]Record of Proceedings for Day 4 at page 58 (line 20) to page 59 (line 12).

[note: 4]Prosecution’s End of Trial Closing Submissions dated 6 June 2024 at [140].

[note: 5]Defence’s Closing Submissions dated 18 June 2024 at [6(d)], [24] – [33].

[note: 6]Defence’s Closing Submissions dated 18 June 2024 at [5(c)] to [5(e)].

[note: 7]Defence’s Closing Submissions dated 18 June 2024 at [30(c)].

[note: 8]See the Prosecution’s End of Trial Closing Submissions dated 6 June 2024 at Annexes A to H.

[note: 9]Defence’s Skeletal Submissions dated 5 February 2024.

[note: 10]Defence’s Closing Submissions dated 18 June 2024 at [6(e)], [34] – [41].

[note: 11]Record of Proceedings for Day 17 at page 51 (line 26) to page 52 (line 20).

[note: 12]Record of Proceedings for Day 17 at page 52 (lines 17 – 27), page 54 (line 18) to page 55 (line 21).

[note: 13]Record of Proceedings for Day 17 at page 59 (line 5) to page 60 (line 26).

[note: 14]Record of Proceedings for Day 17 at page 64 (lines 2 – 13).

[note: 15]Record of Proceedings for Day 17 at page 56 (lines 20 – 26).

[note: 16]Record of Proceedings for Day 17 at page 51 (lines 11 – 25), page 58 (lines 9 – 17).

[note: 17]Record of Proceedings for Day 19 at page 14 (lines 2 – 18), page 16 (line 18) to page 18 (line 22).

[note: 18]Record of Proceedings for Day 11 at page 2 (line 11) to page 3 (line 10).

[note: 19]Record of Proceedings for Day 11 at page 11 (line 21) to page 12 (line 11).

[note: 20]Record of Proceedings for Day 11 at page 12 (line 21) to page 14 (line 26).

[note: 21]Defence’s Closing Submissions dated 18 June 2024 at [39(c)].

[note: 22]Records of Proceedings for Day 4 at page 8 (line 5) to page 9 (line 30).

[note: 23]Record of Proceedings for Day 9 at page 98 (line 27) to page 102 (line 12), page 104 (line 23) to page 105 (line 14).

[note: 24]See P18 at Annex F, s/n 542.

[note: 25]See transcript of Videos (exhibit P4) at page 3 (time stamp at 09:00).

[note: 26]Investigation statement recorded on 28 June 2017 (exhibit P32) at [3]; Investigation statement recorded on 29 June 2017 (exhibit P33) at Q/A 8.

[note: 27]Record of Proceedings for Day 4 at page 27 (line 17) to page 28 (line 10).

[note: 28]Record of Proceedings for Day 4 at page 28 (lines 12 – 25).

[note: 29]Record of Proceedings for Day 9 at page 37 (line 18) to page 40 (line 28), page 44 (line 28) to page 45 (line 20), page 53 (line 27) to page 54 (line 23).

[note: 30]Record of Proceedings for Day 11 at page 27 (line 6) to page 29 (line 1).

[note: 31]Investigation statement recorded on 28 June 2017 (exhibit P32) at [6] – [8].

[note: 32]Investigation statement recorded on 28 June 2017 (exhibit P32) at [4].

[note: 33]Record of Proceedings for Day 4 at page 29 (line 7) to page 30 (line 2), page 45 (lines 23 – 26); Record of Proceedings for Day 6 at page 75 (line 30) to page 77 (line 14).

[note: 34]Record of Proceedings for Day 9 at page 117 (line 25) to page 118 (line 7).

[note: 35]Record of Proceedings for Day 11 at page 6 (lines 23 – 31).

[note: 36]Record of Proceedings for Day 17 at page 7 (lines 7 – 28).

[note: 37]Record of Proceedings for Day 4 at page 58 (line 17) to page 59 (line 17).

[note: 38]Record of Proceedings for Day 11 at page 10 (lines 23 – 28).

[note: 39]See exhibit P19 at s/n 564.

[note: 40]Record of Proceedings for Day 5 at page 6 (line 23) to page 7 (line 2).

[note: 41]Defence’s Closing Submissions dated 18 June 2024 at [4(a)], [13] – [15]; police report (exhibit P1).

[note: 42]Record of Proceedings for Day 5 at page 93 (line 26) to page 94 (line 23); Record of Proceedings for Day 4 at page 34 (lines 29 – 32); Record of Proceedings for Day 5 at page 23 (lines 29 – 32); Record of Proceedings for Day 6 at page 30 (line 29) to page 31 (line 15).

[note: 43]Defence’s Closing Submissions dated 18 June 2024 at [18].

[note: 44]Exhibit P19 at s/n 561.

[note: 45]See e.g., exhibit P19 at s/n 410 (13 June 2011).

[note: 46]See exhibit P19 at s/n 500 to 527 (26 June 2011).

[note: 47]See exhibit P19 s/n 651 to 684 (15 July 2011).

"},{"tags":["Criminal Law – Statutory Offences – Immigration Act – Charge of alleged abetment of “marriage of convenience” – Bases for verdict and sentence"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No. DAC-931055-2017, Magistrate's Appeal No. 9055-2024-01","title":"Public Prosecutor v Kok Chiang Loong","citation":"[2024] SGDC 259","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32250-SSP.xml","counsel":["ASPs (ICA) Syed Mubaruk & Ganeshvaran Dhanasekaran for the Public Prosecutor","Charles Yeo (L F Violet Netto) (Discharged on 2 August 2022) and Rajwin Singh Sandhu (Rajwin & Yong LLP) (Discharged on 14 January 2024) for accused Kok Chiang Loong","K Jayakumar & Adrienne Grace Milton (Discharged on 18 March 2021, where he was thereafter self-represented as an accused in person) (Jay Law Corporation) for co-accused Goh Khoon Beng"],"timestamp":"2024-10-14T16:00:00Z[GMT]","coram":"Marvin Bay","html":"Public Prosecutor v Kok Chiang Loong

Public Prosecutor v Kok Chiang Loong
[2024] SGDC 259

Case Number:District Arrest Case No. DAC-931055-2017, Magistrate's Appeal No. 9055-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Marvin Bay
Counsel Name(s): ASPs (ICA) Syed Mubaruk & Ganeshvaran Dhanasekaran for the Public Prosecutor; Charles Yeo (L F Violet Netto) (Discharged on 2 August 2022) and Rajwin Singh Sandhu (Rajwin & Yong LLP) (Discharged on 14 January 2024) for accused Kok Chiang Loong; K Jayakumar & Adrienne Grace Milton (Discharged on 18 March 2021, where he was thereafter self-represented as an accused in person) (Jay Law Corporation) for co-accused Goh Khoon Beng
Parties: Public Prosecutor — Kok Chiang Loong

Criminal Law – Statutory Offences – Immigration Act – Charge of alleged abetment of “marriage of convenience” – Bases for verdict and sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9055/2024/01.]

30 September 2024

District Judge Marvin Bay:

Introduction

1       These are my grounds for the verdict, and sentence imposed, in the proceedings taken by the State against the accused person Kok Chiang Loong (“Mr Kok”). Mr Kok is a male Singapore citizen presently aged 44, and accused of abetting one Goh Khoon Beng (“Mr Goh”), a male Singaporean, presently aged 45, to enable the latter to contract a marriage of convenience with a female Georgia national, one Akhalkatsi Maia, presently aged 37 (“Ms Maia”) on 2 February 2016. It should be clear that while both were convicted and sentenced, only Mr Kok has appealed. These grounds will also cover facts and circumstances relating to Mr Goh’s case as these would be inextricably linked to salient aspect Mr Kok’s case, and of course to establish that consistency in sentencing was observed.

The charge

2       The proceeded charge states as follows:

(Mr Kok is) charged that (he) on or before 2 February 2016, did abet one Goh Khoon Beng (‘Mr Goh’) by instigating him to enter into a marriage of convenience with one Akhalkatsi Maia, (a female born on 13 December 1985) (‘Mr Maia’), at 15 Kew Terrace, Singapore, to wit, by instructing ‘Mr Goh’ to enter into a marriage with ‘Ms Maia’ and in consequence of the abetment, the said (Mr Goh) did enter into a marriage with the said (Ms Maia) on 2 February 2016, to assist the said ‘Ms Maia’ to obtain an immigration advantage in the form of a Visit Pass, and gratification in the form of free lodging was given to (Mr Goh) by (Ms Maia) as a reward for entering into the said marriage, and (he has) thereby committed an offence under Section 57C(1) of the Immigration Act (Cap 133) read with Section 109 of the Penal Code (Cap 224) and punishable under the Section 57C(1) of the Immigration Act.

3       Section 57C (1) of the Immigration Act Cap 133 (Rev Ed 2008) criminalises marriages of convenience with the provision specifying that: “Any person who contracts or otherwise enters into a marriage --

(a)    knowing or having reason to believe that the purpose of the marriage is to assist one of the parties to the marriage to obtain an immigration advantage; and

(b)    where any gratification, whether from a party to the marriage or another person, is offered, given or received as an inducement or reward to any party to the marriage for entering into the marriage (commits an offence).

Outline of prosecution’s case

4       Simply stated, the charge asserted that the marriage contracted between Mr Goh and Ms Maia had essentially been a “marriage of convenience”, which was otherwise than a genuine marriage, and entered into for a fraudulent purpose, where the latter would receive an immigration advantage, and where Mr Goh, an indigent, who was reduced to living an itinerant lifestyle with no fixed abode, would stand to gain free lodging by staying with Ms Maia.

5       The prosecution contended that, in relation to the above, Mr Kok had abetted Mr Goh by instigating him to enter the alleged marriage of convenience with Ms Maia, with the intent of assisting her in securing an immigration advantage in the form of a Visit Pass as a foreign spouse, with the concomitant inducement of free lodging provided to Mr Goh.

Significant developments at trial

6       Notably, this was a trial that had started with three accused persons being the three named persons in the charge. Mr Kok, the appellant accused person, had been joined by two co-accused persons at the beginning of the trial, being the two direct contractors of the impugned union, which was alleged to be a marriage of convenience. Mr Kok had retained Mr Charles Yeo from the firm of LF Violet Netto, with Mr Jayakumar Naidu and Adrienne Grace Milton from Jay Law Corporation representing Mr Goh and Ms Maia.

7       The trial proper, excluding submissions had taken a full 38 days, and involved developments which included the departure of Mr Charles Yeo on 1 August 2022, when he had abruptly announced his refusal to return after having left the country on LEJUR bail. Mr Rajwin Singh Sandhu of Rajwin & Yong LLP had taken over conduct thereafter.

8       Another momentous development had been Ms Maia’s decision to take a certain course on 8 January 2021, which left the proceedings with just two accused individuals. Mr Goh, citing financial constraints, had eventually discontinued Mr Jayakumar’s and Ms Milton’s representation, and elected to represent himself. At that juncture, Mr Goh, while formally continuing to claim trial, had effectively ceased to actively contest the prosecution’s case. Mr Goh did not disagree with most of the prosecution’s fundamental assertions against him and Mr Kok, and only contested fairly insignificant details.

9       It would, in my view, add unnecessary prolixity to cover each and every development of this lengthy trial to explain my decision on conviction and sentence. These grounds will thus focus on critical aspects of Ms Maia and Mr Goh’s testimony on their interactions with Mr Kok. These, in my judgement, ineluctably show the latter to not just have been complicit, but was effectively the prime mover of the marriage of convenience

MAIA AKHALKATSI

Plea of guilt of PW7, Maia Akhalkatsi

10     As mentioned above, the trial had begun with three co-accused persons with Ms Maia being the third co-accused person, who was no longer in the contested proceeding at its conclusion. As a very consequential development, Ms Maia had in the course of the joint trial, elected to plead guilty to a single charge under Section 57C (1) of the Immigration Act. Ms Maia had received a sentence of 6 months’ imprisonment on 8 January 2021 and then stood as a prosecution witness before being deported to her native Georgia.

11     I now set out Ms Maia’s Statement of Facts[note: 1] where she had made certain admissions salient to the present case[note: 2]:

The accused is Akhalkatsi Maia, a 35-year-old female Georgia national bearing (as stated) On 21 October 2016, the accused was arrested by Immigration & Checkpoints Authority (“ICA”) officers for engaging in a marriage of convenience with one Goh Khoon Beng, a 42-year old Singapore citizen whom the accused addresses as Alex (‘Alex’).

BACKGROUND

2.    The accused first arrived in Singapore on 6 June 2015 for sight-seeing and with an intention to search for a job. At that time, she was searching for better job opportunities because she was the sole breadwinner supporting her family in Georgia. The accused was unable to get a job during her visit in Singapore. Subsequently, prior to the expiry of her visit pass, the accused departed to Malaysia on 4 July 2015 and re-entered Singapore on 10 July 2015 to continue search for a suitable job. She was unsuccessful in her attempts and departed Singapore to Georgia on 8 July 2015.

3.    Consequently, on 23 September 2015, the accused re-entered Singapore from Georgia to search for a job again. Investigation revealed that on 18 October 2015, the accused extended her Visit Pass until 22 November 2015. During her stay here, she rented a room located at 24 River Valley Close # XXX, Pacific Mansion (“Pacific Mansion”). Since the accused was not successful in getting job, she started to work as a freelance prostitute. Consequently, she got acquainted with an unknown female Vietnamese at a pub located at Hyatt Hotel.

4.    During their conversation, the accused was informed that she could apply for a Student’s Pass to remain in Singapore. The accused was then told to contact one Kok Chiang Loong (‘Loong’) to obtain details about applying for a Student’s Pass. Sometime early November 2015, the accused met Loong. Subsequently, arrangements were made by Loong to enroll (sic) the accused at Dimensions International College (‘College’) located at River Valley Road and the College applied for a Student’s Pass for the accused.

5.    On 21 November 2015, the accused departed Singapore to Georgia since her Visit Pass was going to expire the following day. Sometime middle of December 2015, the accused received an email from the College stating that her Student’s Pass application was not approved. She then contacted Loong for advice since she wanted to work in Singapore.

FACTS RELATING TO THE CHARGE (DAC-938992-2016)

6.    Loong proposed to the accused that he could introduce a partner to take care of her so that she could come to Singapore and remain to work. Subsequently, Loong gave the contact number of Alex for the purpose to know each other better. The accused then communicated with Alex via WeChat and Viber Chat. Consequently, Loong made arrangements for the accused to return to Singapore. On 7 January 2016, the accused arrived in Singapore and stayed at Pacific Mansion.

7.    Thereafter, the accused went to meet Alex and Loong at a Vietnamese restaurant located at Marina Square. The accused met Alex for the first time and assessed him to be a filthy person. She was then persuaded by Loong that he could change his appearance and arrange for her to marry Alex so that the accused would remain in Singapore. In return, the accused had to provide shelter to Alex. Investigation revealed that at that material time, Alex did not have a permanent place of abode and was temporarily residing at the Vietnamese restaurant. The accused agreed with the proposal and accepted to marry Alex.

8.    The accused and Alex solemnized their marriage on 2 February 2016 at Loong’s grandparent’s residence located at 15 Kew Terrace, Singapore. After the marriage, Alex stayed together with the accused in her room at Pacific Mansion. They did not consummate their marriage. About a month later, a tenant vacated a room located adjacent to the accused’s room. She then rented it for Alex to reside and paid rental of S$1,000 every month for him.

9.     After the marriage, the accused submitted application for Visit Pass on numerous occasion that were sponsored by Alex. The applications were approved, and her Visit Pass was extended on each occasion. On each occasion, the accused gave Alex ranging from S$50 to S$100 and at the same time supported him with his daily expenses.

10.     By virtue of the above, the Accused, on 2 February 2016, at 15 Kew Terrace, Singapore, did enter into a marriage with Alex, having reason to believe that the purpose of the marriage was to obtain an immigration advantage in the form of a visit pass for herself, and where a gratification of free lodging was given to Alex as a reward for entering into the said marriage and she has thereby committed an offence under Section 57C(1) of the Immigration Act (Cap 133), punishable under the same section of the said Act.

[Emphasis added]

Timeline of significant events

12     For ease of reference, I have set out a timeline of notable events from information set out from sources such as Ms Maia’s earliest investigative statement[note: 3] which had been recorded on the day of her arrest, her admissions in her Statement of Facts when she pleaded guilty on 8 January 2021, and her testimony as a prosecution witness on 29 March 2021.

6 June 2015:

Ms Maia first arrives in Singapore for sightseeing and job hunting

4 July 2015:

Ms Maia departs to Malaysia

10 July 2015:

Ms Maia re-enters Singapore

8 July 2015:

Ms Maia departs Singapore for Georgia

23 September 2015:

Ms Maia re-enters Singapore from Georgia

18 October 2015:

Accused extends her Visit Pass until 22 November 2015

21 November 2015:

Ms Maia departs Singapore for Georgia

Mid-December 2015:

Ms Maia receives email that her Student's Pass application was not approved, and whereupon Mr Kok allegedly proposes to her that he could introduce a “partner” to take care of her so that she could come to Singapore and remain to work

1 January 2016-

Notice of intention to marry under Form A of the Women’s Charter (Chapter 353) is filed on Ms Maia’s behalf.

7 January 2016:

Ms Maia returns to Singapore

15 January 2016:

Ms Maia pays Mr Kok $4,000 for arranging the marriage.

23 January 2016:

At the original scheduled date of the wedding, Ms Maia declines to proceed with the marriage.

2 February 2016:

Ms Maia marries Mr Goh at Mr Kok’s grandparents’ residence in Kew Terrace, Singapore. After the marriage, while Mr Goh stays with Ms Mia in her room at Pacific Mansion, they reportedly do not consummate their marriage.

4 February 2016:

The first extension application for Ms Maia’s Visit Pass is submitted

About March 2016:

Ms Maia rents an adjacent room at Pacific Mansion for Mr Goh

11 April 2016-11 October 2016:

Mr Goh facilitates Ms Maia’s stay by submitting multiple periodic applications for Visit Passes[note: 4].

21 October 2016:

Ms Maia is arrested by Immigration & Checkpoints Authority (ICA) officers

8 January 2021:

Ms Maia pleads guilty to the mirror charge against her in SC-910863-2016 and is sentenced to six months’ imprisonment.

29 March 2021:

Ms Maia appears as a prosecution witness PW-7 for the trial against her two remaining co-accused; Mr Kok and Mr Goh.



Ms Maia’s background before meeting the accused[note: 5]

13     As can be seen from the Statement of Facts, Ms Maia stated that she had on 21 October 2016, been arrested by Immigration & Checkpoints Authority (“ICA”) officers for engaging in a marriage of convenience with Mr Goh. She provided a richly detailed background of how she had come to contract her marriage of convenience.

14     By her account, she had first arrived in Singapore on 6 June 2015 for sight-seeing and intended to search for a job. At that time, she was searching for better job opportunities as she was the sole breadwinner supporting her family in Georgia. Ms Maia had been unable to secure employment during her first stint as a visitor in Singapore.

15     Ms Maia had, subsequently, and prior to the expiry of her visit pass, departed to Malaysia on 4 July 2015, and re-entered Singapore, about a week later, on 10 July 2015 to continue search for a suitable job. She was again unsuccessful in her attempts and departed Singapore for Georgia on 8 July 2015.

16     On 23 September 2015, Ms Maia re-entered Singapore from Georgia to search for a job again. On 18 October 2015, Ms Maia had extended her Visit Pass until 22 November 2015. During her stay, Ms Maia rented a room at 24 River Valley Close, Pacific Mansion (“Pacific Mansion”).

17     Ms Maia remained unsuccessful in landing a job and resorted to working in a certain night-life trade. In the course of this activity, she became acquainted with a Vietnamese female at a pub located in Hyatt Hotel. In the course of their conversation, Ms Maia was told she could apply for a Student’s Pass to remain in Singapore.

Ms Maia’s initial interactions with the accused

18     Ms Maia admitted to having been told to contact one Kok Chiang Loong (“Mr Kok”) to obtain details about applying for a Student’s Pass. In early November 2015, Ms Maia met Mr Kok, and arrangements were made by the latter to enrol Ms Maia at Dimensions International College (‘College’) located at River Valley Road, with the college applying for a Student’s Pass for her.

19     On 21 November 2015, Ms Maia departed Singapore to Georgia as her Visit Pass was about to expire the following day. In mid-December 2015, she received an email from the College stating that her Student’s Pass application was not approved. It was in these circumstances that she resorted to contacting Mr Kok in pursuit of solutions as she wished to work in Singapore.

Ms Maia’s admitted facts relevant to the charge

20     Ms Maia identified Mr Kok as the mastermind of the scheme, as it was the latter who had proposed a scheme where he would “introduce a partner to take care of her” for the specific purpose of enabling her to come to Singapore and remain to work. Mr Kok’s facilitation had included his subsequently furnishing Mr Goh’s contact for the two individuals to liaise with each other.

21     Ms Maia recalled communicating with Mr Goh via WeChat and Viber, another chat application. Mr Kok had thereafter undertaken arrangements for her to return to Singapore. On 7 January 2016, Ms Maia arrived in Singapore and resided at Pacific Mansion.

The accused’s facilitation of Ms Maia’s meeting with Mr Goh and encouragement for her to marry despite her reservations

22     Ms Maia thereafter proceeded to meet Mr Kok and Mr Goh at a Vietnamese restaurant in Marina Square. Her first impression of the latter had been adverse as Ms Maia was taken aback by Mr Goh’s unkempt appearance. Mr Kok had however become an ardent advocate for her proceeding with the planned marriage by persuading that Mr Goh could improve his appearance. He proceeded to make the necessary arrangements for her to marry the former for the sole purpose of enabling her to remain in Singapore. It was made clear to Ms Maia that the arrangement she had entered into was reciprocal as she was required to provide shelter for Mr Goh, who was temporarily residing at the Vietnamese restaurant.

23     Ms Maia signalled her acceptance of the arrangements, and the marriage was solemnized on 2 February 2016 at Mr Kok’s grandparents’ residence in Kew Terrace.

Non-consummation of marriage and admission of mutual ulterior benefits from marriage of convenience

24     After the marriage, Mr Goh stayed with Ms Maia at her rented premises in Pacific Mansion. It was undisputed that the two never consummated their marriage. About a month later, a tenant vacated a room located adjacent to the Ms Maia’s room. Ms Maia had rented the vacated room for Mr Goh to reside and paid rental of S$1,000 each month for him.

25     After the marriage, Ms Maia made successive applications for the continuance of her Visit Pass, with Mr Goh, her putative spouse, being her sponsor. The applications were invariably approved, with her Visit Pass being successively extended. On each of these occasions, Ms Maia paid over sums of S$50 to S$100, and added that she supported him with his daily expenses.

Concordance with Ms Maia’s earlier investigative statement

26     The events recounted in Ms Maia’s Statement of Facts cohered with Ms Maia’s investigative statement recorded on the day of her arrest on 21 October 2016. The statement[note: 6] cites the same background of Ms Maia having come from Georgia to Singapore seeking better job opportunities, initially entering on tourist visas, making multiple trips between 2015-2016, being unable to find legitimate work and resorting to working freelance in a nightlife trade.

Ms Maia’s account of initial discussions with accused after rejection of her student visa

27     Ms Maia went on to describe her attempts to obtain a student visa through Mr Kok, which were unsuccessful. Mr Kok then purported to find her a partner and introduced her to a Singaporean man named Goh Khoon Beng[note: 7]:

17    … Whilst in Georgia, I then contacted (Mr Kok) and informed him that my student visa application is not approved. I then told (Mr Kok) that I want to come to Singapore as I want to have a better life (sic) job in Singapore. Then, (Mr Kok) told me that to have a better life in Singapore, I need to have a better person to take care of me. I then replied to (Mr Kok)' that I need to come to Singapore to find some better person. (Mr Kok) then told me that he had a friend and he can introduced (sic) to me if I want. I then agreed thus, 'Loong' then give one contact number belongs to one of his friend known as 'Goh Khoon Beng'…

… I then informed (Mr Kok)' that 'Goh Khoon Beng' asked me to come to Singapore to meet him. Therefore, (Mr Kok) informed that he will arranged (sic) for a visa for me to travel to Singapore. I wish to say that I received Visa from (Mr Kok) through email and to my understanding the said Visa that I received is sponsor (sic) by 'Goh Khoon Beng'.

Accused’s attempts to quell Ms Maia’s misgivings about marrying Mr Goh

28     Ms Maia testified that upon her returning to Singapore on 7 January 2016, she had contacted Mr Kok and informed him of her arrival. Mr Kok was attentive, as Ms Maia had, minutes later, received a call from Mr Goh, who asked for a meet up. Ms Maia had arranged to meet and formed a poor initial impression. She indicated that the accused had made considerable effort to suppress her resistance to marrying Mr Goh, who did not even resemble the images she had received from their shared chats. The accused relentlessly underscored the advantages of entering the marriage, and his persuasion had gone to the extent of promising to improve Mr Goh’s physical appearance.

19    I wish to say when I first met 'Goh Khoon Beng' personally, he introduced himself as 'Alex'. I then finds (sic) (Mr Goh)[note: 8] to be extremely dirty and his facial appearance is different from what I received his photo on my 'Viber Chat' and 'We Chat'. I then told (Mr Kok) that I could not accept the relationship with (Mr Goh). (Mr Kok) told me that he could arranged (sic) to change (Mr Goh’s) appearance and he could arranged (sic) for me to get married with him since I want to have a better life and prolong my stay in Singapore. I then agreed and (Mr Kok) told me that he will arranged (sic) for my marriage with (Mr Goh).

[Emphasis added].

29     In her statement, Ms Maia relented and proceeded to marry Mr Goh on 2 February 2016 for the specific purpose of prolonging her stay in Singapore. She also alluded to Mr Kok continuing to take an active hand in the arrangements, adding that she paid Mr Kok a sum of $4,000 for arranging the marriage[note: 9].

22    I wish to say that I get married with (Mr Goh) on 2 February 2016 as arranged by (Mr Kok). I wish to say (Mr Kok) is the one who arranged my marriage which includes booking my marriage solemnisation. I wish to say for this occasion, I had voluntarily paid 'Loong' an amount of $4,000. The reason I had paid the said amount to (Mr Kok) is because he had arranged for me to get married with (Mr Goh) and with the said marriage, I can prolong my stay in Singapore. I had paid the said amount of $4,000 to (Mr Kok) on 15 February 2016 at one Vietnam Restaurant located at Chinatown. This is the place where I first met (Mr Goh).

[Emphasis added].

30     After entering into the marriage, Ms Maia admitted that she and Mr Goh lived in separate rooms, but she supported him financially, while he repeatedly extended her visit pass in Singapore as her sponsor.

Ms Maia’s explicit admission to having committed the offence

31     When asked, Ms Maia was quite clear in her admission of having entered a marriage of convenience to obtain an immigration advantage. Notably, she did not tender any denial or offer any defence, but had the presence of mind to express remorse, emphasise this as her first offense, and pleaded for leniency, principally that her family in Georgia, including a mother who was beset by cancer, depended on her support. In her statement:

28    The Recorder now informs me that I had committed an immigration offence (sic) where I had entered into marriage with Goh Khoon Beng (Male, 16 September 1975) a Singapore citizen and having reason to believe that the purpose of the marriage. is to obtain an immigration advantage in the form of a Visit Pass for myself where a gratification of $4,000 was given to the said Kok Chiang Loong (Male, 17 August 1978), a Singapore citizen, as a reward for entering into the said marriage.

29    I am asked by the recorder whether I have anything to say.

30    I wish to say that I am sorry for what I have done. I admit mistake and I accept my punishment. This is my first time I commit such offence. I plead for leniency and I hope that the judge can reduce my penalty to lighter sentence. I missed my family in Georgia.

[Emphasis added]

Ms Maia’s cautioned statement

32     In her cautioned statement,[note: 10] which was recorded in the morning of 22 October 2016, Ms Maia had made an unequivocal admission which was consonant with the final part of her earlier investigative statement:

I am sorry for the offence that I have done. This is my first time I commit such offence. I plead for leniency and I hope that the judge can reduce my penalty to (sic) lighter sentence. I missed my family in Georgia especially to (sic) my mom who is suffering from cancer and they are depending on me to support them.

[Emphasis added]

Ms Maia’s subsequent statement on 26 October 2016

33     Notably, while Ms Maia explicitly admitted her involvement in a sham marriage for immigration purposes, knowing this to be an offence in Singapore, and providing details on how this was arranged and carried out at the date of her arrest on 21 October 2016, she had subsequently recanted a week later in a further statement[note: 11], where she instead claimed to have contracted a love marriage with Mr Goh. She added that Mr Kok’s actions were geared toward “helping me and (Mr Goh) to buy”[note: 12] suitable clothing, a mobile phone, and also to send the latter to Vietnam for dental treatment. She added that she had resolved to change Mr Goh’s appearance after hearing that he had become dishevelled and differed from his images sent via their chat applications as a result of family and financial problems. She had resolved that, as a couple they “should be together and better together”.

34     Ms Maia’s about-turn extended to her affecting a state of ignorance as to why Mr Goh might have stated that his purpose for getting married was for “the sake of shelter and not a love marriage”[note: 13] in his own investigative statement. She even attempted to claim that the non-consummation had not been intentional but occasioned by certain inabilities on Mr Goh’s part. In Ms Maia’s words: “(w)e both tried to have sex, but he couldn’t perform”[note: 14].

35     Ms Maia also asserted that the two tried to stay in the same room but decided to stay in separate rooms within the same address “after some argument”.

Ms Maia’s plea of guilt puts her position beyond doubt

36     Ms Maia initially ran her defence from a case theory based on her second statement of there being a love marriage with her planning a new life, children and family in Singapore with Mr Goh. Her defence counsel, Mr Jayakumar Naidu, even sought to assert that her first two statements to have been involuntary and coaxed by the pressure of threats, inducements or promises by the recording officers, as well as certain claimed inadequacies on the timely provision of an interpreter who could communicate in the Turkish language or Ms Maia’s native Georgian tongue. After it was made evident that Ms Maia understood English[note: 15], and looking at other aspects of the case, I admitted the challenged statements as being voluntarily made.

37     Notwithstanding the above, Ms Maia’s plea of guilt on 8 January 2021, which was of course after the statement made on 26 October 2016, has crystallised her position. What is notable is that Ms Maia’s admissions in the Statement of Facts cohere closely with her first statements made some four years and nine months before on 21-22 October 2016.

Maia’s testimony coheres with her earlier account recorded in her first statemen

38     To assess the quality of Ms Maia’s evidence, it would be appropriate to juxtapose the Statement of Facts and court statements above with her actual court testimony. Setting out Ms Maia’s court testimony allows me to introduce salient background facts which would give a more detailed, textured and complete picture, and in turn enable a more cogent analysis of the expanded factual matrix.

39     What was especially notable from her oral testimony was that both Ms Maia and Mr Goh had, on separate occasions militated against proceeding with the marriage, but been coaxed to proceed by Mr Kok. In Ms Maia’s instance, her initial refusal had resulted in the calling off of the original wedding date of 23 January 2016 at an establishment in Raffles Boulevard, where it was re-scheduled to a more modest event in Mr Kok’s grandparents’ residence at Kew Terrace.

Visa problems and marriage proposal

40     According to Ms Maia’s testimony in court, after her entry visa to Singapore was rejected in late 2015, she had contacted Mr Kok, who had suggested marriage as a solution to her visa problems, assuring her that this would resolve her immigration issues. It was plain that Mr Kok’s suggestion was to get married as her key to remaining in Singapore. He had posited this as an easy alternative to the rigours of securing official employment here.

41     The tenor of their conversation, from the outset, did not point to Mr Kok suggesting that Ms Maia should enter into a marriage founded on a genuine relationship, but rather an arrangement which could be casually terminated by a divorce. In her own words[note: 16]:

(Mr Kok) told me, “So, why are you looking for a job? You… can instead just get married.” So, I told him, “But who would I marry with? I don’t know anyone.” He told me he has a friend that he could introduce me.

(Mr Kok) said, “I’ll give you his number. You talk to him. …, see how it goes. …if you …get along, that’s fine, if you don’t get along, …you can get divorce at worst. And this way it will be easier for you to find a job”.

[Emphasis added]

Ms Maia’s introduction to Mr Goh

42     Ms Maia stated that Mr Kok introduced her to Mr Goh[note: 17], as the solution to her issues with her visa application. In her own words: “(Mr Kok) told me “Since you are telling me that you can’t get a visa, why didn’t you just find a nice person and get married. This way your visa issue would be solved””. Ms Maia testified that she and Mr Goh had begun communicating shortly after the accused’s introduction.

Accused’s facilitation of Ms Maia’s entry into Singapore

43     Prior to Ms Maia’s entry into Singapore on 7 January 2016, Mr Kok had lain the groundwork to enable her to be equipped with a social visit visa, and also a “marriage visa”. Ms Maia had testified of Mr Kok telling her that the social visit visa and the “marriage visa”, which was later established to be a Notice of Marriage[note: 18], would be required for her to be granted an extended stay in Singapore.

44     Ms Maia indicated that Mr Kok gave her the “marriage visa” to facilitate her entry into Singapore, but her social visit visa had sufficed without the need to brandish her “marriage visa” for inspection by authorities. In her own words[note: 19]:

Prosecution:

Okay. Earlier you said there is something about a marriage visa, right?

Ms Maia:

I didn’t need to produce it. No one … asked me.

Prosecution:

So, meaning you were in possession of that particular visa?

Ms Maia:

Yes.

Prosecution:

Who gave you the visa?

Ms Maia:

Chiang Loong.

Prosecution:

So, …there wasn’t a need for you to produce a visa?

Ms Maia:

I was going to use it if there was a problem at the immigration, but there wasn’t, so I didn’t need to use it.

Prosecution:

Who told you to use it when there’s a problem? To use that marriage visa?

Ms Maia:

Chiang Loong. But those visas were issued under the name “Goh Khoon Beng”.

Prosecution:

How did you receive these visas when you’re in Georgia?

Ms Maia:

…Via WhatsApp.

Prosecution:

Who WhatsApped you?

Ms Maia:

Chiang Loong.

[Emphasis added]



Accused’s bid to pressure Ms Maia’s to proceed with the marriage despite her misgivings and objections

45     I will now turn to mention Ms Maia’s account of Mr Kok’s persistent campaign for the marriage, that he had mooted and arranged for, to proceed. Mr Kok had, from her account, applied significant effort to quell her misgivings, and later, considerable pressure to suppress her objections.

46     As set out in the foregoing, Ms Maia’s initial impression of Mr Goh had been overwhelmingly negative. At their meeting in the restaurant that Mr Kok owned. Ms Maia reported feeling “repelled” by Mr Goh. In her own words, she “found him very unpleasant looking. The way he looked, the way he smelled, it all repelled me. I didn’t feel anything toward him.”[note: 20] Ms Maia found herself only able to tolerate a stay of about 20 minutes in the restaurant, before leaving the premises.

47     According to Ms Maia, Mr Kok had not been deterred by this infelicitous first encounter and brazened ahead to impose his plans. On 19 January 2016, Mr Kok had instructed Ms Maia to attend a pre-marriage course with Mr Goh. During the class, Ms Maia was “quite shocked”[note: 21] to learn that their union would be Mr Goh's third marriage.

Accused leaving Mr Goh at Ms Maia’s address upon her initial refusal to marry him

48     Mr Kok initially set the date of marriage date as 23 January 2016, Ms Maia protested “Why didn’t you tell me that this was his third marriage?”, to which Mr Kok had rebutted that “it wasn’t that important”. Ms Maia had put her foot down to state “I can’t marry him, …he is not someone who I like.”[note: 22].

49     Consequent to Ms Maia putting her foot down, the original plan for the marriage to take place on 23 January 2016 was abortive. Mr Kok had retaliated by taking Mr Goh to Ms Maia’s residence at Pacific Mansions, and simply leaving him there and becoming incommunicado. Ms Maia took pity on Mr Goh testifying that she “couldn’t leave him there” as “he didn’t have money”[note: 23]. The situation thus compelled Ms Maia to allow Mr Goh to stay with her.

Ms Maia’s decision to marry was actuated by a desire to extend her stay in Singapore

50     Ms Maia found co-living with Mr Goh challenging as “(h)is smell was overpowering” and “filled up the place”[note: 24], which necessitated her compelling him to take a bath and also shower. She also cooked for him. Mr Goh eventually stayed for two weeks in Ms Maia’s apartment.

51     Ms Maia subsequently became concerned that her visa, which was valid for only 30 days, would soon expire, and approached Mr Kok for help, only for the latter to present an ultimatum: “There is very little time left. In this little time, you…cannot get a job, you cannot extend your visa, so the only way for you is to get married to (Mr Goh)”[note: 25]. Ms Maia contemplated her quandary, realising she had no alternative, and thus agreed to the marriage, on the understanding that this move would solve her visa problems. Ms Maia was clear that her priority was to find a job in Singapore and would not have given her assent if she could have found a job[note: 26] upon which to base her stay.

Accused’s continued role in organising the marriage

52     Ms Maia testified on Mr Kok directly organising the necessary documentation for the marriage, which took place on 2 February 2016, a date was proposed by Mr Kok. Mr Goh confided to her that he was uninvolved[note: 27] in the preparation of the documents, save for appending his signature on them on 27 January 2016. Mr Kok furnished Ms Maia with a “matrimony agreement”[note: 28] and a statutory declaration[note: 29] with the substance set out below for reference

MATRIMONY AGREEMENT

I, GOH KHOON BENG (ID as stated) am the Man, and confirm that I agree to the following: -

a)    I promise to love AKHALKATSI MAIA, honour her, comfort her and keep her in sickness and in health and be faithful to her so long as I shall live.

b)    I promise to provide a matrimony home and live together with AKHALKATSI MAIA once we become husband and wife.

c)    I promise to support AKHALKATSI MAIA living in Singapore.

(consent clause)

l, AKHALKATSI MAIA (ID as stated) am the Woman and confirm that I agree to the following: -

a)    I promise to love GOH KHOON BENG, honour him, comfort him and keep him in sickness and in. health and be faithful to him so long as I shall live.

b)    I promise to live together with GOH KHOON BENG and stay together in the matrimony home he provides.

c)    I promise to perform my connubial duties once we become husband and wife. I will cook for him and wash his clothes.

I, the Woman agree with the consent set out in this Matrimony Agreement.

(consent clause)

[Emphasis added]

And

STATUTORY DECLARATION

I, the undersigned,

GOH KHOON BENG

(ID as stated)

being duly sworn in, hereby solemnly declare that, under the law of Singapore, I am currently divorced and fully qualified to marry a Georgia citizen.

Where the facts set out in this affidavit are within my personal knowledge, that they are true. Where they are not within my personal knowledge, they are true to the best of my knowledge, information and belief.

I crave your office to refer to the information of the bride in this affidavit.

I now confirm that the name of the bride is AKHALKATSI MAIA and her Georgia passport number is (as stated)

I now confirm that the data of the bride is true and correct.

I also declare that I had make an application at the HDB office to purchase a 2-room flat and this will be the matrimony home for the bride. I had got to know the bride through a phone application known as VIBER. I will marry her willingly and it is because of true love. I had shown her my CPF contributions statement showing that I had a stable job and able to support her living in Singapore.

And I make this solemn declaration conscientiously by virtue of the provisions of the Oaths and Declaration Act (Chapter 211) and subject to the penalties provided by the said Act for the making of false statements in statutory declarations,

conscientiously believing the statements contained in this declaration to be true in every particular.

Declared at Singapore by GOH KHOON BENG

This date: 27 January 2016.

The accused mollification of Mr Goh’s misgiving over the marriage

53     Ms Maia learnt that Mr Goh was also hesitant to proceed with the marriage, when she heard the latter state that he “didn’t want to marry (her)”[note: 30]. Upon this revelation, Ms Maia had plaintively implored “(n)ow, I don’t have any place to go, what am I going to do?”[note: 31].

54     The imbroglio was rectified, after Mr Goh was mollified upon Mr Kok taking Mr Goh aside for a private discussion that took place beyond Ms Maia’s earshot. The wedding ceremony then proceeded in Mr Kok’s grandmother's house at Kew Terrace on 2 August 2016.

Transactional nature of post-marriage arrangements

55     Ms Maia’s court testimony cohered with her later admissions in her Statement of Facts that she and Mr Goh did not consummate their marriage and lived separately, despite the “connubial duties” and “live/stay together” clauses in the ‘matrimony agreement’. Ms Maia had rented an additional room for Mr Goh and paid his rent which she recalled being between $800-$1,000 and maintained records of these payments. Ms Maia made it plain that the arrangements were, at their core, transactionally quid pro quo, where Mr Goh would assist with Ms Maia’s visa extensions as her sponsor, but she would pay him sums in return. In this regard too, she continued to rely on Mr Kok, as Ms Maia and her putative spouse were unfamiliar with ICA’s renewal procedures.

How the accused benefitted from the arrangement

56     Ms Maia’s evidence was that the accused had called for her help in securing referrals from foreign students for student passes, as he was able to sponsor these in the course of his occupation at Dimension School[note: 32]. She was able to recall referring three to four persons from Georgia and Uzbekistan, specifically recalling three names “Tursanawa Gilshan”, “Jugeli Teona” and “Gelashbili Sopio” from images provided by the prosecution[note: 33]. Ms Maia added that while she could not be certain as how much Mr Kok collected in totality, one of these referrals had paid up sums approximating $6, 500 for various services provided by Mr Kok and his play of employment, Dimension School[note: 34].

Payment to accused after her arrest for assistance in securing bail

57     Following her arrest, Ms Maia’s bail was set at $ 20,000. She indicated that Mr Kok had assisted with bail arrangements by having an associate[note: 35] stand in as her bailor. She was however chagrined that monies she extended to Mr Kok for her bail were not returned to her. This amounted to $ 10,000. She was also displeased that Mr Kok had secured another $8,000 from one of her referrals, Ms “Teona” who was never reimbursed the sum the latter furnished, despite an alleged promise to do so. In her own words[note: 36]:

(Mr Kok) had called (Ms Teona) and he had gotten $8,000 from her. And I paid another $10,000 so I owed another $2,000 but I didn’t have any money left. So, basically, he used me.

[Emphasis added]

Veracity and quality of PW7, Maia Akhalkatsi’s evidence

58     Ultimately, despite some degree of mild animosity expressed against the accused in the passage above, I was satisfied that Ms Maia was an objective witness in supporting the prosecution's case of the accused’s orchestration a marriage scheme designed to circumvent immigration laws, with herself and Mr Goh as occasionally unwilling participants, but drawn to the scheme by their own immediate perceived necessities, he for shelter, and she for the means to remain in Singapore. Ms Maia was certainly incisively observant and able to clearly articulate the complex network of relationships and transactions involved in arranging and maintaining this marriage of convenience.

GOH KHOON BENG

Goh Khoon Beng’s statements and testimony

59     Turning now to the co-accused Goh Khoon Beng. As touched on in the introductory passages, while Mr Goh technically claimed trial, he had, particularly in the latter stages of the trial, maintained an ambivalent disposition to putting forward any substantive response to the charge against him. This became more marked as the trial wound to a close, when Mr Goh had largely disengaged from mounting any active defence, and seemingly did not take any significant issue with the prosecution’s case.

Mr Goh’s concession that the statements were voluntarily made under cross-examination at an ancillary hearing

60     Mr Goh initially challenged the voluntariness of three of his statements but had conceded under cross-examination at the ancillary hearing, that his statements were voluntarily given, adding almost everything he said had been faithfully recorded by the recording officer. The challenge was essentially predicated on the rather feeble premise of an aggressive-looking supervising officer, OC Ong Ann Haug, being present when his statements were recorded by another officer, IO Siti Radhiyah.

61     Ms Adrienne Milton, Mr Goh’s counsel[note: 37], before discharging herself, acknowledged Mr Goh’s concession and concluded her submissions with a single line that “ultimately, that under Cross (-examination), (Mr Goh’s) own testimony is that it was voluntarily given. So, there is no dispute on the voluntariness of it”[note: 38].

62     Mr Kok’s then counsel, Mr Charles Yeo, maintained that Mr Goh’s statements were not voluntarily made, on the dubious premise of the statement recording having proceeded despite his poor hearing. I noted that Mr Goh could follow the court proceedings while unaided[note: 39] despite the cited auditory problems. I was thus satisfied that there was no inducement threat or promise made at the recording of the statements, or any other circumstances that could vitiate the voluntariness of these statements and ruled[note: 40] accordingly.

The admitted statements give context to the antecedent relationship between the accused and Mr Goh

63     Looking first at the document trial, Mr Goh’s earliest statements did not differ from the prosecution’s characterisation of his marriage with Ms Maia as a “sham marriage” to afford him an advantage. Mr Goh’s account was of Mr Kok steadily gaining control over Mr Goh’s affairs and dealings after some assistance with the latter’s divorce from an earlier sham marriage. This control extended to the former being given access to Mr Goh’s Singpass. This access had been granted since July 2015 during the commencement of Mr Goh’s divorce proceedings with his Vietnamese ex-wife, and its use extended to Mr Kok’s arrangements of the subsequent marriage of convenience with Ms Maia.

Mr Goh’s first ‘long’ statement

64     Mr Goh had given his first ‘long’ statement [note: 41] upon his arrest on 21 October 2016, when he was then aged 38. Mr Goh informed that his putative union with Ms Maia was his third marriage, and also revealed that his prior two marriages were sham marriages, adding these were arranged by other individuals, and had not involved Mr Kok[note: 42].

65     In this statement, Mr Goh stated that he had come to know Ms Maia, whom he knew to be a Georgian national, through Mr Kok in December 2015. Mr Goh added that Mr Kok previously helped with him in his divorce from his second wife named “Thao”. This association led to his ceding his Singpass and email address, which were handed over when Mr Kok had asked for these to facilitate divorce proceedings with Mdm “Thao”[note: 43].

Accused’s alleged misuse of Mr Goh’s Singpass and email accounts

66     Mr Goh’s evidence was that Mr Kok had asked for his Singpass details on multiple occasions. This had caused him to be concerned that his Singpass and email were being misused in what he suspected to be a sideline business of “arranging marriages and facilitating divorces”. Mr Goh states[note: 44]:

I also wish to say that in between my interim and final judgment papers, (Mr Kok) did asked (sic) from me for my Singpass again and also for my email address. He claimed that he needed it for references. I did not question him much back then. However, I recalled when I checked my emails, I saw that it contained all the marriage preparation documents, court filing cases and other documents which I believed were all part of (Mr Kok’s) sideline business of arranging marriages and also facilitating divorces. I wish to say that I did questioned (sic) (Mr Kok) about all these emails and why he had to use my email instead of his to receive all these but he never really answered my questions…

[Emphasis added]

Accused’s proposal for Mr Goh to marry Ms Maia

67     In November 2015, Mr Kok recruited Mr Goh to assume the role of ‘restaurant manager' for his restaurant “Saigon Baguette” which was situated in Marina Square. This appointment proved to be short lived, as the establishment was, according to Mr Goh, effectively non-functional, lacking staff and a cook. The restaurant closed in January 2016, in the wake of complaints from other shops. Mr Goh was in dire financial straits and used the restaurant as temporary shelter. He noted that Mr Kok used the restaurant to “organise lots of meetings for his clients”[note: 45].

Mr Goh’s reported reservations about marrying Ms Maia

68     It was in this milieu of Mr Goh’s dependency on the accused that the latter had, in December 2015, proposed a marriage between the Mr Goh and Ms Maia. Mr Goh was initially reluctant, having no prior knowledge of Ms Maia's background or employment status. In his words: “I wish to say that at that time, I was never agreeable to another fake marriage and I was unhappy with (Mr Kok) for doing this without my consent. I rejected his offer[note: 46]”.

69     Mr Goh added that the accused had assured that “this was going to be a real marriage”. Mr Goh claimed that there was, at this juncture, no discussions regarding financial compensation for visa extensions connected to the marriage which Mr Kok had mooted, with the understanding that Mr Goh would be compensated by having shelter provided when he resided with Ms Maia.

Mr Goh’s claim that accused had used his Singpass to effect the marriage registration

70     It was Mr Goh’s evidence that the accused had continued to take liberties with the former’s Singpass account. Without Mr Goh’s consent, the accused utilised Mr Goh’s Singpass to commence marriage arrangements, and his first notice of the initiated proceedings had been that he had been scheduled a pre-marriage assessment when he was going through his email. Mr Goh had deposed of Mr Kok taking such an involved role in the proposed marriage that he (Mr Kok) was the party setting the date of Mr Goh’s marriage with Ms Maia[note: 47] and nudging the former each step of the way. In this connection, Mr Kok had told him of the date of the marriage being scheduled to 2 February 2016, and even accompanied him to the Registry of Marriages to attend the one-hour marriage preparation course.

Mr Goh’s confirmation of non-consummation

71     In all of his accounts, Mr Goh was emphatic there had been no consummation of the marriage, and while they had initially shared a bed, Ms Maia had taken steps to secure an additional room to house Mr Goh once one became available. In his own words[note: 48]:

As I treated (Ms) Maia as my own sister, I told her I would prefer to have a room of my own. I wish to say that I had never treated this marriage as real and the only reason I had agreed to this was mainly for the shelter.

[Emphasis added]

Mr Goh’s evidence that accused had followed through after marriage to ensure his compliance with Ms Maia’s renewals

72     To accentuate the transactional nature of their relationship, Mr Goh pointed to Mr Kok continuing to maintain a close interest to ensure that the former held up his end to assist in the renewal of Ms Maia’s pass, to the extent of prompting and arranging to meet the former at the ICA building. He has also taken additional steps of memorising Ms Maia’s due dates for extension, and counselled Mr Goh to memorise her particulars to better present as an authentic couple. In Mr Goh’s own words[note: 49]:

I wish to say as (Ms)Maia's pass was about to expire late February 2016, (Mr Kok) had called me to remind me and we were supposed to meet at ICA Building for the extension. I wish to state (Mr Kok) was with us for (Ms) Maia's first extension.

And

… I am paid $50 for the first few extensions and subsequently $100 per extension. I wish to say that for the first four extensions, (Mr Kok) was present with us at ICA Building and he also took note of Maia's extension dates. It was also during the first four occasions; (Mr Kok) had asked me to memorize Maia's date of birth and her passport number just in case I am ever being interviewed by ICA officers for (Ms) Maia's Long Term Pass application. … I wish to add that for the first extension form, it was prefilled by (Mr Kok) but signed by both (Ms) Maia and I (sic).

[Emphasis added]

Mr Goh’s admission that the marriage had an ‘expiration’ date

73     Aside from the above admission where Mr Goh had admitted to having assisted Ms Maia with her visit pass extensions and being compensated by her with $50-$100 for each visit pass extension, the strongest indicum of this being nothing more than a marriage of convenience must come from his revelation that the arrangement came with an “annulment” mechanism, which could be triggered when Ms Maia decided to return to her native Georgia. In his own words[note: 50]:

Ql0    Did you ever plan to apply for annulment with (Ms) Maia?

A10 Yes, both (Ms) Maia and I discussed about it sometime in August 2016. (Ms) Maia told me that she planned to go back in December 2016, so she suggested to proceed only in November 2016.

[Emphasis added].

Mr Goh’s cautioned statement

74     Mr Goh’s handwritten cautioned statement revealed essentially the same as that disclosed in his ‘long’ statement[note: 51] where he had unreservedly conceded to having entered a marriage of convenience with Ms Maia for the sole purpose of ensuring that he had a roof over his head.

I admit to my offence. I had agreed to the marriage solely to have a roof over my head.

I regret my actions and hope I can be given some leniency.

[Emphasis added]

Mr Goh’s further statement on 1 November 2016

75     Mr Goh had given a further statement on 1 November 2016. Much of the statement involved explanations of his past dealings with Mr Kok in respect of the divorce proceedings against Ms Thao. In respect of cogent disclosures germane to the present proceedings, In that statement[note: 52], Mr Goh had for the third time, conceded that his reason for entering into the marriage was for shelter:

Q3:    Is you (sic) marriage to Maia a genuine marriage?

A3:     No.

Q4:    What was your purpose of entering the marriage with Maia?

A4:    It was for the shelter.

[Emphasis added]

76     In his further statement, Mr Goh indicated that he had been baffled when the accused brandished the ‘marriage agreement’ and statutory declaration for him to sign before a commissioner of oaths, as he had not encountered these documents in his prior two marriages. He was later told that “without the matrimony agreement and statutory declaration, (Mr Kok) can be easily charged therefore he will be using these documents to cover himself”[note: 53].

Mr Goh’s allegation of assault by Mr Kok

77     Mr Goh also deposed to an incident of assault in the hands of Mr Kok after he was bailed out, where Mr Kok had apparently become unhappy with his disclosures to investigators through the recorded statement. In his own words[note: 54]:

I just wish to say that I was in deep trouble and being slapped back in the face the moment he (Mr Kok) told me in the car after bailing me out about the 2 documents that I had signed known as the Statutory Declaration and the Matrimony Agreement. He told me that he will be using these documents against me in Court for the cross examination (sic) trial and he had also added that I can be sentenced to 9 months for admitting to a fake marriage.

[Emphasis added].

Mr Goh’s trial testimony

78     At trial Mr Goh’s testimony did not differ from his statements, with his reiteration of his first meeting with Ms Maia at Mr Kok’s restaurant, Mr Kok had essentially dictated the terms of the marriage, declaring that Mr Goh was to marry Ms Maia, and concomitantly be provided with shelter for so doing.

79     Mr Goh testified on his misgivings upon Mr Kok’s declaration that Ms Maia was to marry him. He attested to being unhappy, not least because he was romantically attached by then to a Vietnamese national. Notwithstanding this, Mr Goh had attended a pre-marital class with Ms Maia, where he recalled Mr Kok to curiously also in attendance[note: 55].

80     Mr Goh claimed to have tried to put his foot down in telling Kok that he did not wish to go through with a sham marriage and that Mr Kok was aware of Mr Goh having a Vietnamese girlfriend. Mr Kok had overcome his resistance by stating that his Vietnamese girlfriend was in no position to support him, as she was overseas and “nobody will give (Mr Goh) a roof over (his) head”[note: 56].

81     Mr Goh’s testimony at trial confirmed his stance that after the marriage, he did not consummate the marriage with Ms Maia, and was categorical in stating that he did not consider the marriage to be genuine, stating “…to me, it’s a sham marriage, lah”[note: 57]. He added that no members of his family had been in attendance as they did not regard the ceremony to be genuine wedding. Mr Goh added that he had played his part of the agreement where he was co-operated in processes to extend Ms Maia’s stay and reciprocated with free lodging where Ms Maia would directly settle his rental dues.

82     In his court testimony, Mr Goh added that he had not applied for Ms Maia’s visa prior to her arrival in Singapore, even as the documentation listed his applicant details and Ms Maia’s relationship stated as his spouse-to-be. He reiterated his belief that Mr Kok was involved, as Mr Goh had readily provided his Singpass details to the former even to the extent of giving his one-time password (or OTP) to Mr Kok[note: 58].

83     Ultimately, Mr Goh’s testimony was crystal clear that his marriage with Ms Maia was not a genuine union and both had entered this sham marriage for the former to obtain an immigration advantage and the latter to receive free shelter.

SUPPORTING TESTIMONIAL EVIDENCE FROM OTHER PROSECUTION WITNESSES

84     I now turn to the evidence of a number of supporting witnesses for the prosecution’s case, to give a precis on aspects of their evidence that proved helpful in gaining a better understanding of the contextual underpinnings of the prosecution’s case.

Evidence of PW12 DSP Chan Peng Nam

85     ICA DSP Chan Peng Nam (“DSP Chan”) gave evidence that he, in the course of assessing pre-marriage Long Term Visit Pass (LTVP) assessment applications, discovered Mr Goh had apparently submitted an application for Ms Maia, a Georgian national, in December 2015, even as he had tendered an application for another foreign female individual in November 2015[note: 59]. As DSP Chan probed further, he discovered Mr Goh had also submitted an appeal for entry for yet another person, this time a Vietnamese female, with all three applications being submitted in a span of one to two months.

Mr Goh’s attendance at ICA to respond to his multiple LTVP applications

86     The three applications, made in such an improbably rapid succession aroused DSP Chan’s suspicion, and he thus called Mr Goh to attend an interview at ICA on 4 January 2016. DSP Chan, referring to his records, testified of Mr Goh asserting during the interview that he had not submitted the two pre-marriage LTVP assessment application as “he did not know the two ladies”[note: 60]. DSP Chan indicated that Mr Goh implicated the accused by stating “he was asked by his colleague by the name of Mr Kok to submit, …using his, Mr Goh’s, Singpass”[note: 61].

87     DSP Chan inquired further, and noted Mr Goh’s explanation that because Mr Kok was his “colleague”, he was concerned that raising an objection would “spoil the relationship”[note: 62]. DSP Chan ascertained that Mr Goh was “only interested in the appeal for entry for the Vietnamese lady …whom he intended to marry”[note: 63].

DSP Chan’s account of Mr Goh’s change in position on his LTVP application for Ms Maia

88     DSP Chan stated that during the interview, Mr Goh had, in his presence, penned a statement[note: 64] for submission to ICA, which stated:

ALL APPLICATION (sic) (L.T.P) ARE MAINLY FRIENDS. MARRIAGE WITH GEOREIA (sic) FRIEND IS ARRANGE (sic) BY MY COLLEAGUE MR KOK.

MY MAIN CONCERN IS THE APPEAL FOR MS PHAM THI NHIEN TO (sic) RE-ENTRY TO SINGAPORE AS MY FUTURE WIFE.

ONLINE APPLICATION FOR GEORGIA LADY & THE APPEAL LETTER FOR VIETNAMESE WAS PENDING FOR 1 MONTH PLUS WITHOUT RESPOND (sic) TAT (sic) LED TO THE MARRIAGE ARRANGEMENT & VISA APPLICATION WITH THE GEORGIA LADY.

MS KIEU TUYET NGA APPLICATION WAS DONE IN MY PRESENCE BUT IN PERSON I’VE NEVER MET HER BEFORE.

Signed

GOH KHOON BENG

04/01/2016

[Emphasis added]

89     DSP Chan stated that Mr Goh left ICA after penning the note exhibited above. The witness added that Mr Goh returned several hours later with a detailed 10 page submission[note: 65] and “informed ICA that Mr Kok had asked him to furnish this document to (ICA officials)”[note: 66]. Unlike the earlier specimen of Mr Goh’s work product, which was rife with grammatical and typographic errors, this document was professionally typed and grammatically correct.

90     The submission set out Mr Goh’s history of marriages to two Vietnamese women, namely Ms Nguyen Hong Sinh and Ms Dang Ngoc Thao, and his divorce from the latter on 15 September 2015. The submission also explained that Mr Goh thereafter “considered to get into a relationship” with Ms Kieu Tuyet Nga but had been thwarted as she was not allowed to stay permanently in Singapore.

91     The remainder of this latter submission was an impassioned plea for Ms Maia, who was described as ‘a remarkable lady” and with whom Mr Goh was in love with, to be allowed to entry as he had ‘decided to enter into a relationship and a possible marriage with (Ms) Maia”. The submission extolled the fact of both sharing the same Christian faith, and that she was highly educated and could speak English. Mr Goh added that he had filed a “notice of marriage booking and the solemnisation date is on 23 January 2016”. Rather paradoxically, despite Mr Goh’s earnest pleas for Ms Pham Thi Nhien, she did not even merit a mention in Exhibit P-41.

Analysis of DSP Chan’s evidence

92     What was especially notable was the apparent change in Mr Goh’s position in the two documents submitted in the same morning on 4 January 2016, where he had described in his handwritten application that the application for Ms Maia to principally an arrangement by Mr Kok, and his main concern being his appeal for Ms Pham Thi Nhien’s re-entry to Singapore as his “future wife”, to diametrically change in his type-written submission, where Mr Goh instead identified Ms Maia as the person he earnestly wished to marry.

93     In my judgment, DSP Chan’s testimony demonstrated in stark detail, the amount of influence the accused held over Mr Goh. Circumstantially, Mr Goh could not have penned the fluently expressed submissions in Exhibit P-41, as he clearly lacked the wherewithal to even write grammatically or spell correctly. Again, it appeared suspicious that Ms Pham Thi Nhien was not even referenced in the latter document that Mr Goh had been asked by his “colleague”, Mr Kok, to submit.

Evidence of PW11 ASP Simon Chong

94     ASP Chong Ching Guan, Simon (“ASP Chong”) the lead investigator for the three original co-accused persons, confirmed that his investigative findings indicating the dominant role of the accused largely conformed with the accounts given by Ms Maia and Mr Goh where the former had been introduced to Mr Kok after she had sought his assistance to obtain a student pass, with the accused in turn involving Mr Goh when her application proved unsuccessful.

95     ASP Chong added that Mr Kok had been the prime mover in persuading Ms Maia through her hesitancy and planning for their marriage, using Mr Goh’s indigent status and need for shelter as a bargaining chip. ASP Chong stated that his investigations disclosed that Mr Goh was informed by Mr Kok that the latter had arranged for him to marry Ms Maia without his consent[note: 67] and had initially been inclined to reject the idea but had ultimately been persuaded to go along with the scheme.

Submission of no case and call for defence

96     Upon the prosecution closing their case, defence counsel Charles Yeo made a submission of no-case in that the prosecution had failed to establish their case of there being a marriage of convenience. Aside from raising questions of Mr Kok’s level of involvement in the marriage arrangements, counsel also cited the co-accused persons’ cohabitation, Ms Maia’s knowledge of Mr Goh’s aversion of water and her acts of showering him “very slowly and with care”[note: 68] as evidence that there was a “sexual or quasi-sexual dimension” to their relationship. Mr Yeo, however, had no response to the court’s questions on Ms Maia’s own testimony that there was no consummation of the marriage, and her reason for letting him live with her was on account of pity for Mr Goh’s lack of shelter. Notably, this is substantiated by ASP Chong’s investigations showing that the restaurant which was Mr Goh’s erstwhile shelter had wound its operations due to a lack of staff and ceased business in January 2016. Given the evidence amassed against the two remaining co-accused persons, I was of the view that the prosecution had made at least prima facie case and called for Mr Kok and Mr Goh to present their defence.

THE DEFENCE CASE

97     The defence case is encapsulated in their Case for the Defence and can be summarised in the following manner. Essentially, Mr Kok denied committing the offence on account of there being no actus reus being committed, and the accused not possessing the mens rea to commit the offence[note: 69]. Mr Kok reiterated that he “firmly aware that the marriage was a genuine marriage of trust and affection and romantic love”. Mr Kok also denied instigating or arranging the marriage in any way and denied being the prime mover of the marriage arrangements.

98     Defence counsel added that in the alternative, Mr Kok sought to avail himself to the statutory defence under section 57(4) of the Immigration Act to show that although one purpose of the marriage was to gain an immigration advantage, Mr Kok had reasonable grounds to believe, at the time it was contracted, that the marriage would result in a genuine marital relationship. Counsel states[note: 70]:

In this regard, the Accused Person had done his due diligence and was at all times aware that it would be an offence if he were to assist a fake marriage to be registered or instigate a fake marriage. Therefore, the Accused Person did very much to satisfy himself daily that both Mr Goh Khoon Beng and Ms Maia were indeed in love.

[Emphasis in the original]

99     Counsel sought to show that the factual matrix did not disclose a marriage of convenience, as Mr Kok’s only role had been to introduce Mr Goh and Ms Maia. Both had spontaneously fallen in love, and voluntarily chosen to register and solemnise their marriage and “thereafter lived together as a genuine and typical husband and wife”[note: 71]. He added that Mr Kok had “only done this in the social or friendship context and had not done this for profit whatsoever”. He contended that Mr Kok had only been “requested by both to assist because the Accused Person was regarded as a successful businessman and a person with (sic) high status in Singapore by both Mr Goh Khoon Beng and (Ms) Maia”

ACCOUNT OF THE ACCUSED KOK CHIANG LOONG

100    Mr Kok, in his court testimony, did not deny knowing Mr Goh, whom he knew to be a trishaw operator, and Maia, who was applying for a student pass. He described himself as being much closer[note: 72] to Mr Goh, giving him an “eight” and Ms Maia a ‘one’ on a scale of one to ten for closeness. Mr Kok’s familiarity with Mr Goh led to his exchanging messages about the opposite sex and sexual topics with Mr Goh, but he had never done the same with Ms Maia.

101    The accused contended that he had no control over Ms Maia, describing their relationship to be akin to that of a “guide” and a “tourist”, where he would show her around Singapore. Mr Kok did, however, admit to having a penchant for trying to "control" people like Mr Goh “in a certain way”[note: 73]. His intent was for them to act in what he saw as their best interests.

Accused’s desire to reform Mr Goh by matchmaking him to Ms Maia

102    The accused cited an example of his taking in Mr Goh to work at his restaurant after he left his job as a trishaw rider. Mr Kok ruefully claimed that this trait of desiring to shape the lives of others had resulted in his facing these proceedings. This was as his well-intentioned introduction of Ms Maia to Mr Goh, had resulted in the charge he faced, of abetting by instigation a marriage of convenience between the two.

103    According to the accused, he had undertaken a bid at matchmaking which brought forth a true romantic relationship between Mr Goh and Ms Maia. Mr. Kok had later found out that Mr Goh had an extant relationship with a Vietnamese national. This had greatly disappointed him, as he felt Mr Goh was behaving in an immoral manner and had betrayed his trust. Mr Kok characterised his matchmaking actions to be merely being a ‘busybody”. In his own words “…when I found out that (Mr Goh) has a Vietnamese girlfriend, then my busybody and this kaypoh[note: 74]has bad merits”[note: 75].

104    Mr Kok had reportedly taken what he considered to be Mr Goh’s dishonourable conduct very seriously to the point of claiming to have taken steps to stop the marriage from proceeding on the original scheduled date of 23 January 2016[note: 76].

Accused’s contention that the marriage was genuine

105    After Mr Goh assured Mr. Kok he would break up with his Vietnamese girlfriend and become a "better man", Mr. Kok saw this as a second chance for Mr Goh’s and Maia's relationship. Ultimately, Mr Kok’s position was principally to contend that there was a genuine marriage, as he understood from Mr Goh that he and Ms Maia were living together and sleeping in the same bed, and thus assumed a high level of intimacy existed between the two.

106    Mr Kok’s stance, after hearing Mr Goh’s court testimony that he (Mr Goh) had never engaged in sexual intercourse with Ms Maia and treated her like a sister, was that this contradicted what Mr Goh had understood from his conversations with Mr Goh at the material time.

107    To bolster his impression that Mr Goh had entered into a happy marriage, Mr Kok observed positive changes in Mr Goh’s appearance and hygiene standards after he started living with Ms Maia and attributed these changes to Ms Maia's care and effort to sustain a happy household.

108    Mr Kok claimed that he never looked down on Mr Goh and considered him a hardworking, down-to-earth person. His motivations for arranging the marriage were expressed to be twofold, the first was his wanting to “reform”[note: 77] Mr Goh and improve his socioeconomic status.

Mr Kok’s alleged fantasy to act “like a lawyer”

109    The second motivation was purportedly to fulfil his own fantasy of “being like a lawyer” or a government official in facilitating marriages. In this regard, defence counsel has alluded to Mr Kok being motivated by “an eccentric person’s fantasy to create documents”[note: 78] such as the marriage certificate and the statutory declaration for the marriage.

110    The latter motivation was best expressed by the accused’s erstwhile counsel Charles Yeo when he put the defence case to Ms Maia during her cross-examination, where in a rather prolix and convoluted ‘put’ question, he framed this proposition [note: 79]:

(it was put), that (Mr Kok) merely listened to your[note: 80] request and alleged request to help with the admin and he also got enthusiastic about it because of his eccentric personality which is that he likes to be involved with paperwork and fan---have a fantasy since young that he could be one day a lawyer or be a person in government service. And because of this he got himself into so much trouble by volunteering himself…

[Emphasis added]

111    Mr Kok’s contention in this regard was that he was not pursuing any pecuniary benefit, but merely sought to assist Ms Maia and Mr Goh in facilitating the generation of essential paperwork to formalise their marriage.

Mr Kok’s admission that he had drafted a Statement of Particulars for divorce proceedings between Mr Goh and Ms Maia

112    In his cross-examination, Mr Kok was shown a document[note: 81] seized from Ms Maia that appeared to be a draft Statement of Particulars for divorce proceedings between Mr Goh and Ms Maia. The substantive part of this document states as follows:

IN THE FAMILY JUSTICE COURTS OF THE REPUBLIC OF SINGAPORE

Divorce Suit No D (blank)

of (blank)

Between

Name: GOH KHOON BENG (stated ID)

- Plaintiff

And

Name: AKHALKATSI MAIA (stated ID)

Maia

DRAFT STATEMENT OF PARTICULARS

1.    The particulars of paragraph (6) of the Statement of Claim are set out below:

(a)    Parties registered their marriage at the Registry of Marriages, Singapore on (blank). The defendant is a divorcee and this is the plaintiff’s first marriage.

(b)    Right after the registration of the marriage on (blank), the Plaintiff wanted to consummate the marriage on that night. The Defendant informed the Plaintiff that he did not want to consummate the marriage as he is not feeling well.

(c)    In the course of the next 3 months after the registration of the marriage, for several times, the Plaintiff tied to consummate the marriage with the Defendant. Every time the Plaintiff and the Defendant were in bed together, the Plaintiff’s sexual advances towards the defendant were cruelly rebuffed by the Defendant as the Defendant claimed that She did not want to have a child. The Plaintiff and the Defendant would bitterly argue over the Defendant’s wilful refusal to consummate the marriage.

(d)    Initially, the Plaintiff and the Defendant were living together at the Plaintiff’s house, However, in about 3 months after the registration of the marriage, the Defendant moved out of the matrimonial room as she got no intention to consummate the marriage at all. The Plaintiff and the Defendant have since been living in separate bedrooms and have not consummated the marriage to date.

(e)    Whenever the Plaintiff tries to discuss marital issues with the Defendant, they would end up quarrelling.

(f)    The Plaintiff has decided to apply for nullity since the parties have not consummated the marriage even though the Plaintiff was willing to carry out his duties as a husband. The Defendant has consented to the Plaintiff’s application.

2.    The following documents are annexed herein:

(a) Marriage certificate No: (blank)

(b) Bankruptcy search for the Plaintiff and Defendants for the year 2016: (blank)

3.    The Plaintiff has not sought professional help with respect to reconciliation with the Defendant.

Signature (blank)

Name: GOH KHOON BENG

Date: (blank)

113    Mr Kok did not dispute[note: 82] having prepared this document for Mr Goh, though he claimed it was based on a “standard format”. There were several glaring inaccuracies, as the document stated that Ms Maia was a divorcee, and that the marriage was Mr Goh’s first, which is also not true. The document had misgendered Ms Maia as "he" instead of "she" in one instance[note: 83]. When asked about his motivations, Mr Kok responded “I have a fantasy of doing this kind of things but I’m not really good at it”[note: 84].

114    While Mr Kok claimed familiarity with preparing court documents for divorce proceedings, he conceded to have never undergone any formal legal training. When questioned about the identified inaccuracies, the accused admitted the errors in the information, but claimed the document to be a mere draft based on a standard format he obtained from "somewhere."

115    Mr Kok also initially denied preparing the document specifically for Mr Goh, but later paradoxically admitted giving Mr Goh a hard copy, explaining that Mr Goh sought to dissolve his marriage to Ms Maia, but could not afford a lawyer. The accused’s final position was to insist that the seized document was just a raw draft for Mr Goh to use as a resource. Mr Kok’s evasive answers left the court with a strong sense that he was more deeply involved in facilitating the marriage of convenience and its aftermath than he was willing to directly admit in his sworn testimony.

OTHER DEFENCE WITNESSES

116    Mr Goh had followed Mr Kok as the second defence witness. Mr Goh’s cross-examination by defence counsel Charles Yeo was interrupted by the latter, who was himself facing criminal proceedings, remaining outside the jurisdiction while on LEJUR bail and not returning when the trial resumed on 1 August 2022. Mr Goh’s cross-examination continued with Mr Kok’s appointment of Mr Rajwin Singh. The essence of Mr Goh’s testimony has already been covered in the earlier part of these grounds and need not be recounted here.

117    The defence had called a further three witnesses being Ms Be Thi Mai Chang, who was a witness to the marriage solemnisation, as well as Mr Yeo Yi Quan Harry and Mr Lim Wee Ming in their bid to show that there had been a genuine marriage of love and affection between Mr Goh and Ms Maia. With respect, the witnesses were merely able to give impressionistic glimpses of instances where the two appeared to be happy together.

118    In my judgment, it would be grossly unusual for two persons, knowing themselves to be in marriage of convenience, to fail to maintain appearances, as to give at least an outward representation of civility and cordiality, if not simulated “closeness” as a putative couple. The evidence of the latter three witnesses thus did not metaphorically “move the needle’ in advancing the defence case.

Defence submissions

119    In gist, defence counsel Rajwin Singh indicated that he had three areas that he wished to engage. The first was in relation to Ms Maia, where counsel asserted the existence of evidence of a genuine relationship, including public displays of affection and intimacy. He also alluded to Ms Maia’s own testimony of having tried to make the marriage work, which he regarded as not typical of a sham marriage.

120    The second area would be on Mr Goh’s testimony, where counsel lamented Mr Goh’s tendency to flip-flop between wanting to plead guilty and claim trial, which he submitted, ought to make his testimony unreliable. Mr Rajwin contended that Mr Goh’s evidence seems tailored to suit himself at different times. He also posited that Mr Goh had exhibited some signs he was behaving like a real husband, where testified of enjoying Ms Maia's cooking.

121    As his third point, on the alleged instigation by Mr. Kok founding the charge, defence counsel argued that Mr Kok’s interventions should be viewed via the lenses of charity rather than as instigation, considering Mr Kok's prior help to Mr Goh in taking him into the restaurant in wake of the latter’s destitution, which had left him in extremis, without shelter.

ANALYSIS

The elements of the charge and Mr Kok’s role as alleged abettor

122    In my analysis, I turn first to the elements of the charge under section 57C (1) of the Immigration Act. In relation to Mr Goh, the onus is on the prosecution to prove three elements. They are that:

(a)     Mr Goh had actually entered into a marriage with Ms Maia.

(b)     Mr Goh had reason to believe that the purpose of the marriage was to assist Ms Maia to obtain an immigration advantage in the form of a visit pass.

(c)     Mr Goh did receive gratification, which in this case, involved free lodging provided by Ms Maia as his recompense for entering into the marriage.

The second element of the charge

123    It is, of course, beyond dispute that Mr Goh and Ms Maia did in fact marry on 2 February 2016. On the second element, on establishing that Mr Goh entered the marriage knowing that his counterparty would receive immigration advantages, the facts adduced by the prosecution from the following would ineluctably prove this element:

(a)     Ms Maia’s guilty plea on 8 January 2021 for entering into a marriage of convenience with Goh and thereafter serving a six-month sentence.

(b)     The prosecution’s presentation of Ms Maia’s Statement of Facts and other documents within the bundle of “PG papers” for her case documenting the admitted facts[note: 85] and

(c)     Ms Maia’s subsequent attendance in this trial on 29 March 2021, as prosecution witness PW7, to give oral testimony and be subject to cross-examination, before her repatriation to her native Georgia.

(d)     Mr Goh’s unwavering admission in his contemporaneous investigative statements[note: 86] that the marriage was not genuine.

(e)     Mr Goh honouring the understanding by specifically performing the act of sponsoring all of Ms Maia's visit pass extensions after their marriage. It should also be noted that Mr Kok had reportedly accompanied Mr Goh to ICA in the first few renewals in an apparent bid to ensure his compliance.

124    Turning now to the third element of gratification. The foregoing would, in my view suffice to establish these elements

(a)     Mr Goh’s admission in his statements that the sole purpose of marrying Ms Maia was for her to provide him shelter, as he had no place to stay at that time.

(b)     Ms Maia’s payment of rental sums of $800 to $1,000 for room occupied by Mr Goh.

Requirements to prove an abetment charge in connection with a section 57C (1) Immigration Act offence

125    In relation to the charge Mr Kok faced, the element of the charge would require the prosecution to establish that Mr Kok abetted Mr Goh by instigating him to enter into the marriage of convenience with Ms Maia. The other elements would be similar to those set out above concerning the co-accused Mr Goh, specifically with the second element that, in consequence of Mr Kok’s his abetment, Mr Goh had married Ms Maia to assist her to obtain immigration advantage in the form of a visit pass. The last element would be that of a gratification of free lodging given to Mr Goh as a reward for his entering into a marriage.

126    In relation of this abetment charge, there is an authority on point. In the case of Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393; [1991] SGHC 120, Lai Kew Chai J held that the onus was on the prosecution to show active suggestion, support, stimulation or encouragement to establish the offence. His honour had held:

51    In my view, mere acquiescence or silence is not sufficient to constitute the offence of abetment by instigation. That the Prosecution must show that there has been active suggestion, support, stimulation or encouragement to make good the offence of abetment by instigation was affirmed by Raja Azlan Shah CJ (as he then was) in Haji Abdul Ghani bin Ishak v PP [1981] 2 MLJ 230 at 248 in the following terms:

In fact it is an essential ingredient in a Prosecution for abetment that there must be some evidence to show that the abettor actively suggested or stimulated the principal offender to the act by any means or language, direct or indirect, in the form of ‘expressed solicitation’ or of ‘hints, insinuations or encouragement’. … The word ‘instigates’ in s 107 of the Penal Code does not merely mean placing of temptation to do a forbidden thing but actively stimulating a person to do it …

[Emphasis added]

There was evidence of active instigation by Mr Kok

127    In the inquiry of whether Mr Kok could be liable for abatement by instigation, it would be appropriate to again examine the factual matrix. According to both Ms Maia and Mr Goh, Mr Kok was the progenitor of the notion of using a marriage of convenience between Mr Goh and Ms Maia, for the purpose of obtaining immigration advantages for Ms Maia and providing accommodation for Mr Goh. His instigation had even involved a high degree of pressure to overcome Mr Goh's initial reluctance.

128    The evidence included Mr Goh’s admission in his statement that Mr Kok had introduced Ms Maia to him and persuaded him to marry her, promising that she would provide shelter and take care of Goh's well-being in return. This was at a point that Mr Goh was largely beholden to Mr Kok on account of his staying within the premises of a Vietnamese-cuisine themed restaurant owned by Mr Kok at the time.

The manner of the accused’s instigation was especially brazen

129    There was, in my opinion, a certain brazen quality in the manner of Mr Kok’s instigation. This is exemplified by Mr Goh’s testimony, during the ancillary hearing, that Mr Kok introduced Maia to him and arranged the marriage without his consent. This was also reflected in Mr Goh’s statement that “I wish to say that at that time, I was never agreeable to another fake marriage, and I was unhappy with (Mr Kok) for doing this without my consent. I rejected his offer[note: 87]”. Mr Goh had been placed in a spot as he was seeing another person, a Vietnamese lady named Ms Pham Thi Nhien. Mr Kok overcame Mr Goh’s resistance by touting the advantages of marrying Ms Maia, where Ms Pham could not provide for him whilst overseas. Mr Kok was thus actively suggesting the idea of getting free accommodation in return for marrying Maia.

130    As a direct consequence of Mr Kok's persistent abetment, Mr Goh had yielded to married Ms Maia on 2 February 2016, and performed his part in sponsoring her visit pass applications on a number of occasions, in return for her renting a room for him, and paying a monthly rental of about $800 to $1,000.

Defence submission on apparent intimacy between Mr Goh and Ms Maia

131    It would be apropos for me to specifically address defence counsel Rajwin Singh’s argument that Ms Maia had a genuine marital relationship based on her testimony to having helped Mr Goh overcome his fear of water by bathing him and shaving his armpits and private parts[note: 88].

132    In relation to learned counsel’s argument that this signified the existence of a genuine union, I would express my view that these gestures seemed to be isolated acts of kindness that did little to dispel the impression of the transactional nature of their association. I also note Ms Maia’s prior occupation to be as a trained beautician in Georgia, and hence the assistance rendered at such instances would not be at all unusual or unexpected from a person with her prior training and experience. In a similar vein with Ms Maia’s unsuccessful attempts to initiate a sexual connection, I believe that it would be rather natural for two people living together for some eight months (from February 2016 until Ms Maia’s arrest on 21 October 2016) to seek to effect an evolution of their relationship, to improve on the nature and tenor of their cohabitation. None of this can change the fact of their union bearing clear signs of being ab initio, a marriage of convenience.

Ms Maia’s initial resistance does not suggest that the accused was advocating a love marriage

133    The indicia of the union being otherwise than a love marriage would include Ms Maia’s unfavourable response at her first face-to-face meeting of Mr Goh with Mr Kok at his restaurant, where she confessed to have been "repelled" by Goh. Further, she baulked when Mr Kok told her of his arrangements to hold the marriage on January 23, 2016, Ms Maia had then expressed her reservations stating she could not marry Goh as she did not like him.

The marriage only proceeded upon further pressure from the accused

134    To re-capitulate, Ms Maia’s trenchant resistance caused the marriage to be deferred to 2 February 2016. Mr Kok’s persistence in seeing through the planned marriage extended to his bringing Mr Goh to Ms Maia's residence and leaving him there. Ms Maia was finally persuaded when she sought Mr Kok's help to extend her visa and was told in no uncertain terms that the only way out was for her to marry Mr Goh. To recapitulate from Ms Maia’s investigative statement, Ms Maia had found Mr Goh to be “extremely dirty” and his facial appearance differed from images she received. She then recounted Mr Kok’s persuasion [note: 89]

I then told (Mr Kok) that I could not accept the relationship with (Mr Goh). (Mr Kok) told me that he could arranged (sic) to change (Mr Goh’s) appearance and he could arranged (sic) for me to get married with him since I want to have a better life and prolong my stay in Singapore. I then agreed and (Mr Kok) told me that he will arranged (sic) for my marriage with (Mr Goh).

There would be no basis to invoke the statutory exception under section 57 (4) of the Immigration Act

135    Given the above, it would be extremely challenging for Mr Kok to be able to invoke the statutory defence under section 57 C (4) of the Immigration Act where a defendant can establish reasonable grounds to believe, at the time the marriage was contracted, that the marriage would result in a genuine marital relationship. This is even more so when one considers that Mr Kok acknowledged to supplying Mr Goh with a draft Statement of Particulars for divorce proceedings under circumstances that he could not explain save a rather flippant “I have a fantasy of doing this kind of things but I’m not really good at it”[note: 90].

136    The defence introduced witnesses claiming to have heard Mr Goh exult over his married life and of seeing apparent expressions of affection such as the putative “couple” holding hands and being affectionate. I would only say that these were, if at all accurate, merely subjective impressions on the part of these witnesses, which were flatly contradicted by the testimonies of the actual protagonists, Mr Goh and Ms Maia.

Verdict

137    All considered, I was of the view that the evidence of the union being a marriage of convenience transacted to yield the specified benefits to each party, being Ms Maia’s continued stay in Singapore and Mr Goh’s shelter and remuneration in the form of a stipend upon his renewing Ms Miah’s visit pass, was simply overwhelming.

138    Accordingly, I found that the prosecution has proven its case beyond reasonable doubt, and I did convict both the accused person Kok Chiang Loong and his co-accused, Goh Khoon Beng of their respective charges under the section 57C (1) of the Immigration Act.

SENTENCING

Revisiting the factual matrix for sentencing

139    The starting point would be to note that section 57C (1) of the Immigration Act Cap 133 (Rev Ed 2008), which criminalizes marriages of convenience carries a maximum penalty of up to 10 years' imprisonment and/or a fine of up to $10,000. From the foregoing, the court has established that the marriage between Mr Goh and Ms Maia was indeed a marriage of convenience, where Ms Maia received an immigration advantage, and Mr Goh, who was indigent and living an itinerant lifestyle with no fixed abode, gained free lodging by staying with Ms Maia.

Mr Kok was the essential nexus between Mr Goh and Ms Maia

140    In this case, Mr Kok was the essential connection between the two contractors of the marriage of convenience, where he had abetted Mr Goh by instigating him to enter into the marriage of convenience with Ms Maia, with an intent to assist Ms Maia in securing an immigration advantage in the form of a Visit Pass as a foreign spouse. Mr Kok had dangled free lodging as inducement for Mr Goh.

141    In sentencing there would be a need to note and distinguish the different roles played by Mr Kok, as instigator/abettor and Mr Goh as the direct participant, as well as the specific benefits each party stood to gain from the arrangement. The premeditated nature of the offence, particularly on Mr Kok's part, was also a salient offence-specific factor in sentencing.

Indexing the sentences of the co-accused persons with the sentence imposed on Ms Maia

142    For the purpose of parity in sentencing, it is apropos to remember that Ms Maia was the third co-accused person, but had in the course of this trial, elected to plead guilty to a single charge under section 57C (1) of the Immigration Act. Ms Maia received a sentence of 6 months’ imprisonment on 8 January 2021 and stood as a prosecution witness before being deported to her native Georgia.

143    Unlike Ms Maia, both Mr Kok and Mr Goh elected to press on to contest their respective charges. I do note, however, that Mr Goh had at times sought to explore a guilty plea and did not actively contest the charge. Ultimately, while Mr Goh opted to proceed with the trial, he maintained an ambivalent disposition in putting forward any substantive defence, and seemingly did not take issue with the prosecution’s case. This was, of course, not the case with Mr Kok.

Testimony of former co-accused PW7, Maia Akhalkatsi, points to key role by Mr Kok

144    For the purpose of assessing the roles of the two accused persons Mr Kok and Mr Goh, it would be apropos to revisit Ms Maia’s evidence. Ms Maia had placed Mr Kok as the central figure in the scheme. He had, after all, proposed the scheme to Ms Maia, offering to introduce a partner to help her stay and work in Singapore, then provided Mr Goh's contact information to Ms Maia for them to communicate WeChat and Viber Chat. Mr Kok arranged for Ms Maia's return to Singapore on 7 January 2016.

Mr Kok’s role in setting up the initial meeting and persuasion to proceed with the marriage

145    It was Mr Kok who had set up the initial meeting between Ms Maia and Mr Goh at his Vietnamese restaurant in Marina Square. After Ms Maia was initially taken aback by Mr Goh's unkempt appearance, Mr Kok had worked to persuade Ms Maia that Mr Goh could improve his appearance and encouraged the marriage. Mr Kok was also the architect of the reciprocal arrangement for Ms Maia to provide shelter for Mr Goh, who had been living in a restaurant, in return for his assistance in visa applications. It was also notable that the marriage was solemnized on 2 February 2016 at Mr Kok's grandparents' residence. Aside from certain sums she paid Mr Kok, Ms Maia testified of benefits he received from her introduction of other fee-paying foreign nationals to him.

Mr Goh’s statements and testimony show his passive role and disinclination to contest his charge

146    As a co-accused person, Mr Goh was forthright even from his time as a criminal investigation suspect. As previously pointed out, in his statement taken in the course of investigation[note: 91], Mr Goh readily stipulated that his reason for entering into the marriage was for shelter. In another statement[note: 92], Mr Goh had been frank in respect of his having assisted Ms Maia with her visit pass extensions and of being compensated with $50-$100 for each Visit Pass extension. At the risk of repetition, I now set out a precis of established facts to better showcase Mr Goh’s limited and fairly passive role.

147    Mr Goh identified co-accused Mr Kok (in P29) as having been the party who contrived the plan for his marriage with Ms Maia. In P27, Mr Goh indicated that Mr Kok had introduced him to Ms Maia and their first meeting had been at Mr Kok’s restaurant in Dec 2015, adding that Mr Kok at this meeting dictated to him (Mr Goh) the terms that he would be marrying Ms Maia, who would, in turn, provide shelter. Mr Goh noted Mr Kok taking such an involved role in their proposed marriage that the latter was the party setting the date of Mr Goh’s marriage with Ms Maia.

148    Mr Goh’s passivity in committing the offence extended to the fact that Mr Kok never even sought his permission to facilitate the wedding with Ms Maia, and his first notice of the upcoming event had been that he (Mr Goh) had been scheduled to attend a pre-marriage assessment while he was going through his email.

149    Notably, Mr Goh indicated his misgivings upon Mr Kok’s declaration that Ms Maia was to marry him. He attested to being unhappy, not least because he was attached to another by then. Despite his initial reluctance, Mr Goh attended a pre-marital preparation class with Ms Maia, where he recalled Mr Kok to incongruously also be in attendance.

150    Mr Goh made a belated bid to assert himself in telling Mr Kok that he was not keen to undergo a sham marriage and that Mr Kok was aware of Mr Goh already involved with a Vietnamese female whom he regarded as his girlfriend. The accused has also taken Mr Goh to stay with Ms Maia for a short period of time, in what appeared to be both a familiarisation exercise and a pressure tactic against Ms Maia’s resistance.

The co-accused persons’ antecedents

151    The prosecution has pointed out that the trial spanned 39 days. In the way of offender specific factors, both Mr Kok and Mr Goh have antecedents, although only Mr Kok’s is directly relevant for sentencing. Mr Goh had a single spent antecedent for criminal breach of trust where he was imprisoned for three weeks in 2001. For the avoidance of doubt, I see no reason to impose any uplift in sentence, and no adjustment has been made on account of this.

152    Mr Kok on the other hand had an immigration related antecedent. Mr Kok also had a spent conviction followed by 14 convictions under the Computer Misuse Act and one for making a false statement in 2011, where he had been sentenced to 12 months’ imprisonment on a run of three charges. More significantly, Mr Kok had on Oct 2015 been convicted of an offence under section 57(1)(k) of the Immigration Act and received a sentence of six weeks’ imprisonment Mr Kok’s appeal was dismissed on 13 May 2016. It is somewhat troubling that he had through this period been involved in the activities set out above in relation to Ms Maia and Mr Goh’s marriage of convenience.

153     In Public Prosecutor v Lim Yung Keng Adam [2022] SGDC 192, the Kow Keng Siong DJ made observations of sentencing patterns in section 57C (1) cases, noting that first time offenders pleading guilty received six months’ imprisonment, while offenders claiming trial (and thus ineligible for any sentencing discount) generally received eight months’ imprisonment.

154    The profiles were also elucidated upon, where the court at [32], further observed that cases where the sentencing norms were applied typically had the following profile:

(a)    The foreign offender is female while the local offender is male.

(b)    The local offender knew – as opposed to merely having reason to believe – that the purpose of the marriage was to assist the foreign offender to obtain an immigration advantage.

(c)    Both the local and foreign offenders were charged for having entered – as opposed to merely having contracted to enter – into a marriage of convenience in Singapore.

(d)    The local offender and/or and foreign offender had taken some steps to deceive the authorities into believing that their marriage was not a sham.

(e)    The gratification was monetary in nature.

The factual matrix justifies Mr Goh receiving a measure of leniency

155    I would agree with the prosecution’s proposition that Mr Goh did fit the typical profile of an archetypal section 57C (1) offender, having embarked into the sham marriage for some recompense while affording Ms Maia an immigration advantage.

156    There was, however, the additional angle of the imposed pressure and coaxing by Mr Kok into entering the marriage of conveyance with Ms Maia, given Mr Goh’s indigent status, as a man who had been turned out by his own family, and thus in need of shelter.

157    Given the above, I found it inappropriate to sentence Mr Goh to the eight-month indicative sentence for claim trial cases. The court must properly consider Mr Goh’s state of want and desperation. It is also the case that Mr Goh did not contest the case with any intensity, and importantly, did little to conceal the offence. Aside from shelter, Mr Goh’s monetary recompense was also fairly paltry, being mostly limited to the $50 - $100 stipend he was given by Ms Maia for each Visit Pass extension done for the latter’s benefit.

Mr Kok’s manner and extent of offending is on an aggravated scale

158    Rather different considerations would apply for Mr Kok, where the grain of evidence identified him as the prime mover and instigator, who relentlessly coaxed Mr Goh into entering the marriage of convenience, knowing full well his vagrant circumstances. I would thus not disagree with the prosecution’s contention that “(Mr) Kok was aware that (Mr) Goh did not have any place to stay and exploited (Mr) Goh’s vulnerability to urge him to enter into the marriage of convenience for free lodging”. While there is some basis to consider a degree of parity between Ms Maia and Mr Goh, the facts against Mr Kok are quite different.

159    In my view the prosecution has correctly aligned their analysis of Mr Kok’s offending to be closer to that of the offender in PP v Mehra Radhika who also arranged a sham marriage. I am largely in agreement with the prosecution’s analysis. It would thus be worthwhile to set out their submissions in extensio[note: 93]:

22    In the case of Mehra Radhika, the High Court had outlined six aggravating factors, at [58], that are relevant to the offence of arranging or assisting in the arrangement of a marriage of convenience. The six aggravating factors as it applies to the present case are as follows:

a)     If active steps were taken to conceal the offence

Kok had prepared a matrimonial agreement and a statutory declaration (P6 and P7) for the sham marriage between Goh and Maia. Kok was also straightforward that he did not seek Goh’s or Maia’s advice before preparing these documents. In addition, Goh himself stated that Kok had told him that he had prepared the said documents to protect himself as he was of the view that he could easily be charged without P6 and P7.

Moreover, Kok had also prepared P41 for Goh to pass to the ICA officer during his interview at ICA building on 04 Jan 2016. This was after Goh had contacted Kok and told him about what had transpired during the interview. P41 consists of Goh’s ‘supposed’ declaration about his marriage to Maia, Maia’s details, Maia’s visa application forms as well as air tickets for Goh to fly to Georgia.

Goh himself had no clue about these documents and it is also confirmed that he had not met Maia yet, prior to his interview at ICA building on 04 Jan 2016. Thus, it is obvious that Kok had prepared P6, P7 and P41 in order to conceal that the marriage between Goh and Maia was a sham marriage and also to conceal his involvement in the said sham marriage.

b) If the offender played a major role in the commission of the offence as opposed to a minor or merely ancillary role

Kok had applied for the notice of marriage (P31) between Goh and Maia as well as the Visa application on 23 Dec 2015 (P35) for Maia to enter Singapore. For P35, it is also crystal clear that Kok had used Goh’s Singpass account to make the Visa application, and he had indicated the status of the relationship between the applicant, Goh and Maia as spouse to be, even though Goh had no knowledge about Maia at the material time. For P31 and P35, these applications were made prior to Maia’s arrival in Singapore.

In addition to these documents, Kok himself testified during the trial that he had coached Maia to show P31 to the immigration officers at Singapore, if she were to encounter any problems during her arrival immigration clearance into Singapore. Lastly, after the marriage on the initial date of 23 Jan 2016 didn’t take place, Maia’s visa was due to expire. At that point, Kok told Maia that the only way out was for her to marry Goh, which then led to the marriage eventually taking place on 02 Feb 2016.

Based on the above, it is unequivocal that Kok was the mastermind behind this sham marriage and had played a major role in the commission of the offence. He had essentially dictated the terms of the marriage, declaring that Goh was to marry Maia, and concomitantly be provided with shelter for so doing.

(c) If the offence was committed as part of a commercial enterprise that was active in the commission of such crimes as opposed to being a one-off incident

There is no evidence that the offence was committed as part of a commercial enterprise. However, it is noteworthy, that in addition to Kok and Goh at the point of arrest, Lim Wee Meng (DW7) was also arrested together for arranging a marriage of convenience between one Aw Kim Huat and Nguyen Thi Tuyet. For the said marriage of convenience, Kok himself had prepared documents similar to P6 and P7 as well…

160    In relation to the last point, the prosecution was able to show that Mr Kok had a template of sorts for such documents to be used, but there had been nothing to suggest a wider scale exploitation. For completeness, Mr Lim Wee Meng, a defence witness, had also been taken to task for arranging a marriage of convenience, under Section 57C (2) of the Immigration Act and received a six month imprisonment sentence.

161    On addressing the point of exploitation or pressure, it was Mr Kok who declared to Mr Goh that Ms Maia would be his future wife, and who, in turn, was expected to reciprocate by giving him shelter. As mentioned above, Mr Goh was essentially beholden to Mr Kok to the point of handing over his Singpass details and furnishing the one-time-passwords he separately received. This largely enabled Mr Kok to unilaterally plan the sham marriage without Mr Goh’s direct co-operation, or indeed even his permission.

162    In his final sentencing submissions, which Mr Kok presented from a set of written submissions sent just a day before this mention, Mr Kok had asserted himself to be a victim of Mr Goh and his primary motive to pair the latter with Ms Maia had been to get rid of Mr Goh whom he had attributed to having contributed to a rat infestation and other problems at his restaurant, as a result of Mr Goh’s sleeping over and failure to properly manage the property. Mr Kok also stated that his haste to “get rid’ of Mr Goh had been because of the latter’s ‘body odour’ which was a deterrent to restaurant customer patronage of his establishment.

163    In relation to Mr Kok’s final submissions, it was all too clear that the assertions minimising his level of involvement run against the grain of evidence. As the prosecution has aptly pointed out, there was considerable work on his part in coaching Ms Maia and preparing falsified documents for this case, and it would be wildly improbable and disproportionate to orchestrate a sham marriage just to “get (Mr Goh) out of his life”.

General deterrence must take a pre-eminent place

164    I have no doubt that general deterrence much take primacy in the sentencing of this genre of cases. As the prosecution has correctly pointed out, marriages are highly personal matters in nature. Marriages of convenience are inevitably difficult to detect. Such sham marriages are an efficient conduit for foreign nationals to enter and remain in Singapore under false pretences, where it is not uncommon that these individuals, under cover of their false marriages engage in socially undesirable work (as was the case with Ms Maia, who was engaged in the nightlife trade) or even activities falling on the wrong side of the law. Such persons could use their marital status to Singaporean spouses as a means to avoid scrutiny of their activities and stymie the monitoring efforts of State agencies on foreign nationals in this country. General deterrence would thus be the principal consideration in deterring like-minded persons from contemplating committing offences of this nature.

Why specific deterrence should apply for Mr Kok as well

165    For Mr Kok, there is the added dimension of specific deterrence, given his commission of this offence occurring almost conterminously with the period between his conviction and the completion of an appeal for an immigration offence in the previous case mentioned above.

166    Indeed, it is remarkable that Mr Kok had been involved in the events in the present case in the period after his conviction for the past case on 27 October 2015, and within the period his appeal was dismissed 13 May 2016.

167    The prosecution has elucidated on the facts of Mr Kok’s prior case to state the following[note: 94]:

32    On 27 Oct 2015, Mr Kok was sentenced after trial to 6 weeks’ imprisonment for committing an offence under Section 57(1)(k) of the IA. He had abetted a female Vietnamese national (“Ngoc”) to make a false statement in the disembarkation form upon her arrival in Singapore. She had stated her address in her disembarkation form as “Block 33 Taman Ho Swee (redacted)”, belonging to a male Singapore Citizen, Ong Chuang Tian (“Ong”).

33    Ong testified that Kok had informed him that he would be paid $2,500 to enter into a sham marriage with Ngoc. When Kok and Ong were in Vietnam, Kok took Ong’s NRIC to copy his address onto Ngoc’s disembarkation form as her address in Singapore. This was despite Ong informing Kok that there was no space for Ngoc to stay with him. Kok then told Ong not to worry as Ngoc’s living arrangements had nothing to do with Ong.

34.    In (Public Prosecutor v) Kok Chiang Loong, the DJ in [13] commented that Kok’s “mission was to bring Ngoc into Singapore for the sham marriage, and he knew Ngoc was previously denied entry into Singapore”. The DJ further added in [15] that Kok “had committed this offence to enable Ngoc to enter Singapore and his act was part of the sham marriage scheme.”

Sentences Imposed

168    After thorough and careful consideration of all salient factors, I imposed the following sentences:

169    For Goh Khoon Beng, noting the special circumstances of his case, I imposed a term of six months’ and three weeks’ imprisonment (taking into consideration his prior remand 22-27 October 2016), to take effect from 30 April 2024[note: 95].

170    For Kok Chiang Loong, looking at the somewhat more aggravated circumstances of his pervasive influence over the co-accused, and direct hand in managing the but also noting the terms given in precedent cases, I impose a term of imprisonment of 10 months’ imprisonment.

Present disposition of the accused

171    The appellant, Kok Chiang Loong, is presently on bail pending the disposition of his appeal against conviction and sentence.

[note: 1]Please refer to Exhibit P33.

[note: 2]Ms Maia’s Statement of Facts, PS-1 of SC-910863-2016, is set out verbatim and unedited. Mr Kok is referred to as “Loong” and Mr Goh is referred to as “Alex” in the Statement of Facts.

[note: 3]This was the statement made on 21 October 2016, under the auspices of section 22 of the Criminal Procedure Code, often colloquially referred to as a ‘long statement”.

[note: 4]Please see Exhibits P9-P20 for visa applications for Ms Maia made under Mr Goh’s sponsorship.

[note: 5]For the remainder of these grounds, all references to “the accused” should be taken to pertain to Kok Chiang Loong as the sole appellant. Goh Khoon Beng, who did not appeal will be referred as “the co-accused”.

[note: 6]Admitted as Exhibit P24.

[note: 7]In P24 at [17].

[note: 8]Ms Maia continues to reference Mr Goh as “Alex” for the remainder of her statement.

[note: 9]Please refer to P24 at [22].

[note: 10]Admitted as Exhibit P25.

[note: 11]Please see Exhibit D4.

[note: 12]At [3]-[4] of Exhibit D4.

[note: 13]At [5] Q2/A2 of Exhibit D4.

[note: 14]Exhibit D4 at Q4/A4.

[note: 15]Ms Maia had studied English before coming to Singapore and had spent a considerable time here before her arrest.

[note: 16]At Notes of Evidence, 29 March 2021, Page 26, Lines 1-9. Hesitations and repeated words in the transcript have been edited for flow and readability. Edited areas are marked with triple full-stops (…).

[note: 17]Please Notes of Evidence, 29 March 2021, Page 26, Lines 11-18.

[note: 18]The ‘marriage visa” referenced here is understood to actually be a Notice of Marriage which is Form A under the Women’s Charter and exhibited as D31. It should be noted that D31 itself is the final printed version and contains subsequent indorsements dated after Ms Maia’s entry on 7 January 2016. The actual application to marry had been made on 1 January 2016, for the marriage to take place 23 January 2016, and Ms Maia seems to be referring to an earlier version of this form sent by the accused via WhatsApp attachment.

[note: 19]At Notes of Evidence, 29 March 2021, Page 29, Line 12 to Page 30, Line 2. Hesitations and repeated words in the transcript have been edited for flow and readability

[note: 20]At Notes of Evidence, 29 March 2021, Page 32, Lines 9-12. Emphasis in bold italics added.

[note: 21]Please see Notes of Evidence, 29 March 2021, Page 34, Lines 6-7.

[note: 22]Please see Notes of Evidence, 29 March 2021, Page 36, Lines 5-11.

[note: 23]At Notes of Evidence, 29 March 2021, Page 37, Lines 26-32.

[note: 24]Please see Notes of Evidence, 29 March 2021, Page 38, Lines 9-12.

[note: 25]At Notes of Evidence, 29 March 2021, Page 46, Lines 25-28. Emphasis in bold italics added.

[note: 26]Please see Notes of Evidence, 29 March 2021, Page 55, Lines 2-10.

[note: 27]At Notes of Evidence, 29 March 2021, Page 60, Lines 1-4.

[note: 28]Admitted as Exhibit P6. The text contents are uncorrected.

[note: 29]Admitted as Exhibit P7.

[note: 30]Please see Notes of Evidence, 29 March 2021, Page 61, Line 3 and Page 62, Lines 6-10.

[note: 31]At Notes of Evidence, 29 March 2021, Page 62, Lines 7-8.

[note: 32]At Notes of Evidence, 29 March 2021, Page 78, Lines 1-6.

[note: 33]These photographic images can be found in Exhibit P-32.

[note: 34]As found in Notes of Evidence, 29 March 2021, Page 82, Lines 4-22.

[note: 35]This person is identified in Exhibit P-30. Please also see Notes of Evidence, 29 March 2021, Page 85, Lines 12-20.

[note: 36]At Notes of Evidence, 29 March 2021, Page 85, Lines 5-7.

[note: 37]Ms Adrienne Grace Milton of Jay Law Corporation.

[note: 38]At Notes of Evidence 18 March 2021, Page 4, Lines 9-14.

[note: 39]Mr Goh was able to obtain a hearing aid at the later part of the trial, but seemed to have minimal difficulty while unaided, and never hesitated to ask for a question to be repeated if he was uncertain.

[note: 40]Please see Notes of Evidence 18 March 2021, Page 16, Lines 13-32.The three statements were admitted as C27, C28 and C29.

[note: 41]The statement is made under section 22 of the Criminal Procedure Code.

[note: 42]P27 at [2].

[note: 43]P27 at [3].

[note: 44]P27 at [4].

[note: 45]Please see P27 at [5].

[note: 46]In P27 at [5].

[note: 47]Please see [11] (Photo 4) of P27.

[note: 48]Please refer to P27 at [7].

[note: 49]In P27 at [7] and [8] respectively.

[note: 50]Please see P27 at Q10/A10.

[note: 51]Please refer to Exhibit P28 entitled Goh Khoon Beng's statement recorded under Section 23 CPC on 22 October 2016.

[note: 52]Please see Exhibit P29.

[note: 53]Please see Exhibit P29 at [3] with emphasis added.

[note: 54]At A16 in Exhibit P29.

[note: 55]Please see Notes of Evidence, 2 August 2022, Page 36, Lines 1-10.

[note: 56]At Notes of Evidence, 17 September 2021, Page 58, Lines 6-22.

[note: 57]Please look at Notes of Evidence, 17 September 2021, Page 35, Line 21.

[note: 58]Please see Notes of Evidence, 2 August 2022, Page 28, Lines 1-19.

[note: 59]Please see Notes of Evidence, 4 August 2022, Page 3, Lines 10-25.

[note: 60]At Notes of Evidence, 4 August 2022, Page 5, Lines 14-18.

[note: 61]Notes of Evidence, 4 August 2022, Page 5, Lines 20-21.

[note: 62]Please see Notes of Evidence, 4 August 2022, Page 6, Lines 1-3.

[note: 63]Notes of Evidence 4 August 2022, Page 6, Lines 4-5.

[note: 64]Admitted as Exhibit P-42 (Original note is rendered in capitalised letters).

[note: 65]Exhibit P-41 entitled “Re: Visa application and pre-marriage long term pass assessment.

[note: 66]Notes of Evidence 4 August 2022, Page 8, Lines 1-4.

[note: 67]Please see Notes of Evidence 31 March 2021, Page 68, Lines 19-24.

[note: 68]Notes of Evidence 13 September 2021, Page 4, Lines 4-10

[note: 69]At [2] of Case for the Defence.

[note: 70]At [3] of Case for the Defence.

[note: 71]At [5] of Case for the Defence.

[note: 72]Notes of Evidence 13 September 2021, Page 42, Lines 4-8.

[note: 73]At Notes of Evidence 13 September 2021, Page 44, Lines 2-6.

[note: 74]Colloquial term for a busybody or person taking an extraneous interest in the affairs of others.

[note: 75]Notes of Evidence 15 September 2021, Page 20, Lines 19-21.

[note: 76]Notes of Evidence 15 September 2021, Page 61, Lines 4-5.

[note: 77]Please see Notes of Evidence 16 September 2021, Page 108, Lines 12-13.

[note: 78]Notes of Evidence 30 March 2021, Page 40, Line 32-Page 41, Line 1.

[note: 79]At Notes of Evidence 29 March 2023, Page 96, Lines 7-18 (verbatim and unedited).

[note: 80]The reference is to Ms Maia.

[note: 81]Please see Exhibit P-3, entitled Statement of Claim seized from Maia.

[note: 82]Please see Notes of Evidence 16 September 2021, Page 55, Lines 1-2.

[note: 83]At [1](b) of Exhibit P-3.

[note: 84]Please see Notes of Evidence, 16 September 2021, Page 55, Lines 8-9.

[note: 85]Please refer to Exhibit P-33 entitled Registrar's Certificate of Akhalkatsi Maia.

[note: 86]Exhibited as P-27, P-28 and P-29.

[note: 87]In P27 at [5].

[note: 88]Please see Notes of Evidence, 17 September 2021, Page 105, Lines 1-22.

[note: 89]In Exhibit P24 at [19].

[note: 90]Please see Notes of Evidence, 16 September 2021, Page 55, Lines 8-9.

[note: 91]Exhibit P29 entitled “(Goh) Khoon Beng's statement recorded under Section 22 CPC” on 1 November 2016.

[note: 92]Exhibit P27 entitled “(Goh) Khoon Beng's statement recorded under Section 22 CPC” on 21 October 2016.

[note: 93]At [22] of Prosecution’s Submission on Sentence.

[note: 94]Please refer to Exhibit F, Prosecution’s Submission on Sentence from [32]-[35]. The case in question is Public Prosecutor v Kok Chiang Loong [2015] SGDC 339

[note: 95]Mr Goh had applied for a sentence deferment.

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Public Prosecutor v Muhammad Ryan Rosmani
[2024] SGDC 239

Case Number:District Arrest Case No 902991 of 2024 & 3 others
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Sharmila Sripathy-Shanaz
Counsel Name(s): Benjamin Low (Attorney-General's Chambers) for the Public Prosecutor; Sui Yi Siong and Janerni Mohan (Harry Elias Partnership LLP) for the accused.
Parties: Public Prosecutor — Muhammad Ryan Rosmani

Criminal Law – Offences – Cheating

Criminal Procedure and Sentencing – Sentencing – Principles

16 September 2024

District Judge Sharmila Sripathy-Shanaz:

Introduction

1       Following his plea of guilt, Mr Muhammad Ryan Rosmani (“Mr Ryan”) has been convicted of two counts of engaging in a conspiracy to cheat two financial institutions, an offence under s 417 read with s 109 of the Penal Code 1871.[note: 1] He also consents to two charges under s 3(1) read with s 12 of the Computer Misuse Act 1993, being taken into consideration for the purpose of sentencing.[note: 2] These offences pertain to Mr Ryan handing his bank accounts’ access code, personal identification number and one-time password to unknown persons thereby facilitating their unauthorised access to banking services. It now falls upon this court to impose a condign sentence.

2       I preface my decision on sentence by addressing several points raised in the Mitigation Plea that warrant a response to set in context what sentencing in this case responds to and relatedly, what it seeks to achieve.

There is Public Interest in Deterring Cheating Offences that Facilitate Organised Crime

3       Cheating offences under s 417 of the Penal Code encompass a wide spectrum of offending. In this case, the court is concerned with actions that deliberately sought to circumvent safeguards in the banking system and ultimately resulted in the deception of two financial institutions. The act of handing over control of one’s bank account to a third party is a key cog in the criminal activities of organised crime syndicates. Sentencing here is about dealing with offenders who help facilitate the activities of such syndicates by giving them access to the legitimate banking system, thereby furthering their criminal enterprise.

4       Where the usurped bank account is then used to funnel illicit proceeds of crime, the egregiousness of the conduct must necessarily be assessed in the context of the burgeoning number of scams-related offences worldwide. I shall not delve into the figures as these are publicly available, however it suffices to highlight that the number of reported scam cases has increased by more than seven-fold, while the amounts lost to scams have quadrupled.[note: 3]

5       These sobering figures underscore the undeniable growing public interest in suppressing scams-related offences. In this connection, the courts play a pivotal role in responding to the urgent need to effectively deter such offences. The penal sanctions imposed on those who, in any capacity, facilitate and fuel these scams must be sufficiently robust to reflect the seriousness of the crime and curb the alarming ease with which many are drawn into committing these offences.

The Factors in the Sentencing Advisory Panel’s Guidelines for Scams-Related Offences are Broadly Relevant

6       This brings me to the next issue that arises in the Mitigation Plea, and that is the submission that Mr Ryan’s offences fall outside the scope of the Sentencing Advisory Panel’s Guidelines for Scams-Related Offences (“the Guidelines”).[note: 4] I would observe that while the Guidelines are not expressly applicable to offences under s 417 of the Penal Code, the suite of offence and offender specific factors distilled therein,[note: 5] would, with the appropriate modifications, clearly inform the court’s assessment of (i) the harm engendered by a s 417 offence involving an offender who has deceitfully procured and thereafter relinquished a bank account that is used to funnel scam proceeds, and (ii) the offender’s culpability for the same. It is to this extent, that these factors are relevant to sentencing in the present case.

7       In a similar vein, it would be remiss for the court to disregard the broad sentencing principles enunciated in the Guidelines,[note: 6] that as a matter of logic, are equally germane to s 417 offences of the nature under consideration.

8       In adopting this approach, I am doing no more than responding to the Defence’s call for the court to take into account the nature of the charges and the relevant facts and circumstances of this case.[note: 7] To be abundantly clear, I am not sentencing Mr Ryan as though he were convicted of the new scams-related offences that only came into force in February 2024.[note: 8] That is not the intent of the court, nor the approach that I have adopted. Though for completeness, I should highlight that the s 417 charges Mr Ryan has been convicted of, are punishable with a fine and/or up to 3 years’ imprisonment, which accords with the prescribed punishment for an offence under s 55A(1)(a) read with s 55A(1)(b)(ii) punishable under s 55A(5) of the CDSA.[note: 9]

The Applicable Sentencing Factors

9       I now turn to consider the interplay between the facts of this case and the relevant sentencing factors.

Offence-specific factors going towards harm

10     In assessing harm, the following factors inform sentencing.

11     Foremost, the offences involve the deliberate deception of a financial institution, which is aggravating as such conduct, if left unchecked has the potential to erode the integrity of, and confidence in, Singapore’s financial infrastructure: Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2013] SGHC 238 at [48] to [49].

12     Second, I cannot ignore the significant harm that has flowed from Mr Ryan’s offences. The Defence’s attempt to confine the court’s assessment to merely the reputational harm suffered by the victim banks,[note: 10] is erroneous. It bears repeating that harm is a measure of the injury which has been caused to society by the commission of the offence[note: 11] and as the High Court cautioned in Newton, David Christopher v Public Prosecutor [2023] SGHC 266 at [64], the court should look at all the surrounding facts that are relevant and proved, to determine “the real nature of the harm caused” even when the harm in question is plainly not an element of the proceeded charge.

13     In the present case, for the purpose of sentencing, this is sufficiently capacious to encompass the harm flowing from the subsequent illicit use of the two bank accounts opened by Mr Ryan, to funnel scam proceeds of more than $70,000 in a short span of time. The Defence’s argument that “no appreciable harm was actually inflicted”[note: 12] is therefore baseless and I reject any characterisation of Mr Ryan’s offences as having caused little or low harm.[note: 13]

Offence-specific factors going towards culpability

14     In assessing culpability, the following are relevant considerations.

15     First, Mr Ryan was motivated by personal gain as the Statement of Facts makes plain that he was tempted by the prospect of quick cash.[note: 14] This lays to rest the Defence’s over-simplistic assertion that he was not motivated by self-interest.[note: 15] As for the Defence’s related contention that Mr  Ryan had acted out of “a misguided sense of filial piety” to alleviate his family’s financial troubles,[note: 16] any sympathy I may hold for his personal circumstances does not erode the established principle of law that financial hardship cannot serve as a justification or mitigation for violating the law: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [10], cited with approval in Toh Suat Leng Jennifer v Public Prosecutor [2022] SGHC 146 at [30].

16     Second, I find no force in the argument that Mr Ryan’s culpability for the offence is low as he “did not know exactly what he was getting into and did not know that he was facilitating the activities of an illegal syndicate”.[note: 17] The Statement of Facts makes plain that Mr Ryan chose not to make further enquiries after Bro’s refusal to tell him what the relinquished bank accounts would be used for.[note: 18] It would thus be perverse for the court to find Mr Ryan’s culpability for the offences reduced on account of his own wilful failure to make the enquiries incumbent upon him to make. In fact, in assessing his culpability for the offences, I cannot ignore the fact that Mr Ryan had proceeded to defraud the banks despite his suspicions, as to Bro’s intentions, being aroused.

17     To be clear, I do not accept the Prosecution’s submission that Mr Ryan’s deceitful opening of a new bank account is an offence-specific sentencing factor[note: 19] since this is the very gravamen of the present s 417 offence. The Sentencing Advisory Panel’s guidance that it is aggravating if the offender had opened a new bank account to be handed over,[note: 20] must be understood in the context of the new CDSA offences which criminalise the relinquishing of bank accounts, new and existing, to third parties for the purpose of accessing, operating or controlling the account.[note: 21] It is in this specific context that the discrete act of opening a bank account, as opposed to handing over control of an existing account, is found to be aggravating since it discloses an added element of deliberation and commitment towards law-breaking. The issue does not feature in the present case and is thus not a relevant factor that I have regard to in sentencing.

Offender-specific factors

18     Balanced against the aforesaid offence-specific harm and culpability factors, are several offender-specific factors which I give weight to in mitigation. These are Mr Ryan’s cooperation with the authorities and his early plea of guilt which I accept are signs of remorse and contrition. I also accept that the present offences are Mr Ryan’s first brush with the law, though this is somewhat tempered by the fact that the two offences that have been taken into consideration, had served to entrench Mr Ryan’s role in enabling the scammers’ illicit scheme.

19     I would reiterate that I do not find it mitigating that the offences were committed out of financial need.

The Sentences Imposed

20     Having regard to (i) the broad sentencing principles implicated in s 417 offences which involve an offender who deceitfully procures and thereafter relinquishes a bank account that is subsequently used to funnel scam proceeds, (ii) the harm, culpability and mitigating factors canvassed, as well as (iii) the maximum prescribed punishment for offences under s 417 of the Penal Code, I take the view that the sentence of 4 weeks’ imprisonment sought by Defence Counsel is unduly lenient and would fail to reflect both the seriousness of the offending and deter like-minded individuals who might similarly be enticed to resort to such conduct.

21     In my judgment, upon weighing the various considerations, a sentence of 4 months’ imprisonment for the 1st and 2nd Charges respectively, is appropriate and proportionate to the criminality before me.

22     Ordinarily, I would have imposed a slightly higher sentence for the 2nd Charge since it pertains to a second, distinct act of offending. However, the aggravation accruing from this repeat offending is balanced by the fact that the harm flowing from the commission of the second offence is considerably lower than that which ensued from the first offence.[note: 22]

The precedents can be distinguished

23     For completeness, I briefly explain why I was not persuaded by the precedents cited by the Defence.

24     I do not regard the sentence of 3 months’ imprisonment imposed for the s 417 offence in Public Prosecutor v Liao Bang Xiong [2023] SGDC 228 (“Liao”) to be an appropriate yardstick against which the present sentences should be calibrated. The harm occasioned by Mr Ryan’s offence is higher since more than $70,000 was funnelled through his bank accounts, as opposed to the $50,000 transacted through the offender’s account in Liao. The culpability of the respective offenders is also not as far removed as the Defence has characterised it to be since Mr Ryan knew enough to become suspicious about how his banks accounts would be used and yet blithely proceeded with his clearly criminal acts (supra at [16]). Specific deterrence is also a relevant consideration here since Mr Ryan committed two cheating offences seven days apart. Ultimately, I do not consider myself constrained by the sentence imposed in Liao, which does not reflect the current context of intensified efforts to combat the ever-growing menace of scams-related offences.

25     I similarly do not regard the sentence of imposed on the offender in Tang You Liang Andruew v Public Prosecutor and another appeal [2022] SGHC 113 (“Andruew Tang”) to be instructive given the vastly different factual matrix involved, viz. the fact that the offender’s bank accounts were not misused, and no losses were caused.[note: 23] That context is entirely absent in the present case. Additionally, the court in Andruew Tang had tempered the sentence imposed on account of the principle of parity between the offender and his co-offenders who had already been sentenced.[note: 24] This consideration does not arise here.

26     For these reasons, I do not find sentencing in the present case to be guided by the precedents cited to me by the Defence. Instead, I have calibrated the sentences by applying my mind to the various factors canvassed earlier to determine where in the range of punishment prescribed for s 417 offences, Mr Ryan’s offending behaviour falls.

The Aggregate Sentence

27     Although the offences are distinct instances of offending, I order the sentences to run concurrently. In my judgment, an aggregate sentence of 4 months’ imprisonment reflects the egregiousness of the crime, accounts for Mr Ryan’s culpability and serves as an adequate deterrent to those who might similarly be enticed to resort to such conduct.

[note: 1]1st and 2nd Charges, DAC-902991-2024 and DAC902992-2024 respectively

[note: 2]3rd and 4th Charges, DAC-902993-2024 and DAC-902994-2024 respectively

[note: 3]Sentencing Advisory Panel’s Guidelines for Scams-Related Offences at [5]

[note: 4]Mitigation Plea at [18] to [27]

[note: 5]Guidelines at [13] and [15] to [17]

[note: 6]Guidelines at [5] to [7]

[note: 7]Mitigation Plea at [17]

[note: 8]ss 51(1), 51(1A) and 55A(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and ss 8A and 8B of the Computer Misuse Act 1993 (“CMA”)

[note: 9]Which carries a prescribed punishment of a fine up to $50,000 and/or up to 3 years’ imprisonment

[note: 10]Mitigation Plea at [35] to [37]

[note: 11]Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [41]

[note: 12]Mitigation Plea at [37]

[note: 13]Mitigation Plea at [34] to [37]

[note: 14]SOF at [4]

[note: 15]Mitigation Plea at [47]

[note: 16]Mitigation Plea at [47]

[note: 17]Mitigation Plea at [47]

[note: 18]SOF at [4]

[note: 19]Address on Sentence at [12(a)]

[note: 20]Guidelines at [13(a)]

[note: 21]Criminalised by virtue of

[note: 22]SOF at para [10] states that $69,800 in scam proceeds was transacted through the account which is the subject matter of the 1st Charge, whereas para [18] of the SOF states that at least $2,800 was transacted through the account which is the subject matter of the 2nd Charge.

[note: 23]Andruew Tang at [23] and [62]

[note: 24]Andruew Tang at [58]

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Disqualification from holding or obtaining a driving license"],"date":"2024-10-07","court":"District Court","case-number":"DAC No. 909603-2024, Magistrate's Appeal No. 9181-2024-01","title":"Public Prosecutor v Mohammad Hisyam Bin Basheer","citation":"[2024] SGDC 263","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32279-SSP.xml","counsel":["DPPs Xavier Tan and David Menon (Attorney-General's Chambers) for the Prosecution","Accused in Person"],"timestamp":"2024-10-13T16:00:00Z[GMT]","coram":"Ong Hian Sun","html":"Public Prosecutor v Mohammad Hisyam Bin Basheer

Public Prosecutor v Mohammad Hisyam Bin Basheer
[2024] SGDC 263

Case Number:DAC No. 909603-2024, Magistrate's Appeal No. 9181-2024-01
Decision Date:07 October 2024
Tribunal/Court:District Court
Coram: Ong Hian Sun
Counsel Name(s): DPPs Xavier Tan and David Menon (Attorney-General's Chambers) for the Prosecution; Accused in Person
Parties: Public Prosecutor — Mohammad Hisyam Bin Basheer

Criminal Procedure and Sentencing – Sentencing – Disqualification from holding or obtaining a driving license

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9181/2024/01.]

7 October 2024

Senior District Judge Ong Hian Sun:

Introduction

1       Mr Mohammad Hisyam Bin Basheer (“the accused”), a 40-year-old male Singaporean pleaded guilty and was convicted on the following charge:

“..are charged that you, on the 2nd day of April 2023, at about 6.26 pm, did ride motorcycle, FBK3955T along Woodlands Avenue 5 towards the direction of Woodlands Avenue 9, and cross junction of Woodlands Avenue 3, Singapore in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which was actually at the time, on the road, to wit, by failing to conform to the traffic red light signal while travelling straight into the signalized cross junction of Woodlands Avenue 3, and resulted in a collision with motor bus, SMB176L which was travelling straight from your right to left side, on traffic green light signal, by such driving, you have thereby committed an offence under Section 64(1) of the Road Traffic Act 1961, punishable under Section 64(2C)(a) of the same Act.” (DAC 909603-2024).

2       I sentenced him to a term of imprisonment of 1 week and disqualification from driving all classes of vehicles for a period of 12 months.

3       The accused had served his term of imprisonment. However, being dissatisfied with my decision, he is now appealing against the order of disqualification. I hereby set out the reasons for my sentence.

Punishment Prescribed by Law

4       The punishment prescribed under section 64(1) of the Road Traffic Act 1961, punishable under Section 64(2C)(a) of the same Act is a fine not exceeding $5000 or a term of imprisonment not exceeding 12 months, or with both.

5       Section 42(1) of the Road Traffic Act, Cap 276 provides that a court before which a person was convicted of any offence in connection with the driving of a motor vehicle, could also order that person to be disqualified from holding or obtaining a driving license for life or for such period as the court might think fit.

Statement of Facts

6       The salient parts of the Statement of Facts which the accused admitted without qualification are as follows.

7       The accused is Mohammad Hisyam Bin Basheer, a 40-year-old Singaporean male.

8       On 2 April 2023, at about 6.26pm, the accused was riding a motorcycle bearing plate number FBK3955T (“the motorcycle”) along Woodlands Avenue 5 towards the direction of Woodlands Avenue 9. At the same time, one Chong Yong Tian (“Chong”) was driving a motorbus bearing plate number SMB176L out from Woodlands Bus Interchange, along Woodlands Avenue 3.

9       Chong travelled along Woodlands Avenue 3 and approached the junction of Woodlands Avenue 3 and Woodlands Avenue 5 (“the junction”). As Chong approached the junction, the traffic light was green in his favour, and at least three cars and one motorcycle were stopped behind the stop line along Woodlands Avenue 5, at the junction, as the traffic light towards Woodlands Avenue 5 was red. The accused approached the junction as well.

10     Chong drove the bus across the stop line along Woodlands Avenue 3, into the junction. Suddenly, the accused rode the motorcycle past the stop line along Woodlands Avenue 5 when the traffic light was red and not in his favour, and collided into the left side of the bus. The accused fell off the motorcycle.

11     Chong stopped the bus, opened the door, and asked the accused if he was okay. The accused said he was and pushed the motorcycle away from the junction. Chong then continued driving along Woodlands Avenue 3, away from the junction. No hurt was caused to Chong or the bus passengers.

12     By virtue of the foregoing, the accused, on 2 April 2023, at about 6:26pm, rode the motorcycle along Woodlands Avenue 5 at the junction, in a manner which was dangerous to the public, having regard to all the circumstances of the case, including nature, condition, and use of the road and the amount of traffic which was on the road at the time, namely, by failing to conform to the traffic red light signal while travelling straight into the junction, resulting in a collision with a motorbus bearing plate number SMB176L, which was travelling into the junction on a traffic green light signal. He has thereby committed an offence under s 64(1) of the Road Traffic Act 1961, punishable under s 64(2C)(a) of the same Act.

13     The accused was traced but not related to any road traffic offences.

Prosecution’s submissions on sentence

14     The accused did not have any relevant antecedents in relation to this traffic offence and the Prosecution sought a short custodial sentence of up to an imprisonment term of one week with a disqualification from driving all classes of vehicles for a period of 12 months and for the sentence of imprisonment to be backdated to the date of his arrest as the accused had spent a substantial period in remand and the period of his remand would have outstripped his sentence of imprisonment for this traffic offence.

15     On the issue of disqualification, the Prosecution was of the view that a 12 months’ disqualification order should be imposed.

Mitigation Plea

16     The accused had sought a disqualification order for a period of less than 12 months in view of the hardship that will be caused if he was sentenced to a longer period of disqualification as he relied on his driving licence for his living.

Decision

17     As recognized by Menon CJ in the case of Edwin Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13] – [14]: “A disqualification order combines three sentencing objectives: punishment, protection of the public and deterrence......Where an offence reflects a blatant disregard for the safety of other road users and a lack of personal responsibility, there is a public interest in taking such a driver off the roads for a substantial period of time, The aims of deterrence are also served by sounding a stiff warning that such drivers can expect a lengthy disqualification order. The disqualification order should therefore increase in tandem with the severity of the offence, whether or not it is also accompanied by a substantial fine or period of imprisonment.” (emphasis added in bold).

18     In the present case, the accused had driven in a manner which posed a danger to the public by beating a traffic light at a road traffic junction resulting in an accident. It was only fortuitous that there was no injury caused to the bus driver and the passengers in the bus. The accused had driven in an irresponsible manner with blatant disregard to the safety of other road users when it should be clear to the accused that at least three cars and one motorcycle had already stopped behind the stop line along Woodlands Avenue 5, at the junction before the accused approached the traffic light junction.

19     In my view a deterrent sentence of a substantial period of disqualification is necessary to deter the accused and other like-minded persons from taking such risks by beating the traffic light without regard to the safety of other road users.

20     I was also of the view that hardship caused to the accused arising from his disqualification order which will deprive him from working as a delivery driver was not a mitigating factor as this was brought about by himself. This court’s main consideration in imposing an appropriate period of disqualification was to protect the safety of the public. Hence, a disqualification period of 12 months was adequate deterrence for the accused in the circumstances of the present case.

21     I noted that the accused was in remand for a substantial period of time as he had nobody to bail him out until his father eventually agreed to post bail for him. He only decided to take up the offer by the Prosecution on the first day of his trial after the Prosecution offered to apply for his six remaining Penal Code and Protection From Harassment Act related charges that he faced to be discharged not amounting to acquittal. I was not minded granting him any reduction in his disqualification order as the matter was delayed because the accused was contesting his non-road-traffic related charges and there was apparently some disagreement between him and his father that resulted in the father posting bail for him only after he had served a substantial period of his remand.

Conclusion

22     For the reasons set out above, I sentenced the accused to 1 week imprisonment and a disqualification period of 12 months with effect from his date of sentence.

"},{"tags":["Civil procedure – Costs – Whether costs should be on an indemnity basis"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit No 2309 of 2021, District Court Appeal No 17 of 2024","title":"Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.","citation":"[2024] SGDC 244","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32277-SSP.xml","counsel":["Ong Zhenhui Wayne and Lim Xiao Ping (Wayne Ong Law Practice) for the Plaintiffs","Rezza Gaznavi (Mahmood Gaznavi Chambers LLC) for the Defendant."],"timestamp":"2024-10-11T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.

Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.
[2024] SGDC 244

Case Number:District Court Suit No 2309 of 2021, District Court Appeal No 17 of 2024
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Samuel Wee
Counsel Name(s): Ong Zhenhui Wayne and Lim Xiao Ping (Wayne Ong Law Practice) for the Plaintiffs; Rezza Gaznavi (Mahmood Gaznavi Chambers LLC) for the Defendant.
Parties: Ng Poh Keng — Chang Lang Peng — Fatimah Mohsin The Wedding Gallery Pte. Ltd.

Civil procedure – Costs – Whether costs should be on an indemnity basis

[LawNet Editorial Note: An appeal to this decision has been filed in HC/DCA 17/2024.]

23 September 2024

District Judge Samuel Wee:

Introduction

1       In Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd. [2024] SGDC 196 (“Judgment”, which abbreviations and definitions I adopt), I determined that:

(a)     The Plaintiffs succeeded in their claim against the Defendant for damages of $11,713.68 arising from the Defendant’s failure to make payment of the outstanding sums payable under the 2018 Tenancy Agreement, plus contractual interest at 10% per annum from the date of writ to the date of judgment (“Unpaid Rent Claim”).

(b)     The Defendant succeeded in its counterclaims regarding:

(i)       The Plaintiffs’ wrongful termination of the 2018 Tenancy Agreement (“Wrongful Termination Counterclaim”), and was awarded $34,536 in damages plus interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment.

(ii)       The Plaintiffs’ breach of the Roof Maintenance Clause and Quiet Enjoyment Clause (“Leakage Counterclaim”), and was awarded $79,285.88 in damages relating to the Damaged Gowns and Outfits and Restored Outfits (“Leakage Damages Award”) and $2,142 in loss of profits as a result of the Jan 2021 Leakage, plus interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment.

2       On 28 August 2024, I fixed costs of $27,000 against the Plaintiffs. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

3       The Defendant has filed an appeal against my decision on costs, and I now provide the full grounds for the same.

The parties’ positions

The Defendant’s position

4       The Defendant sought costs of $85,000 on an indemnity basis.[note: 1] The broad breakdown of the amount sought, which the Defendant quantified based on the Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore in Appendix G of the Supreme Court Practice Directions 2021 is as follows:[note: 2]

(a)     Pre-trial work: $27,000[note: 3] plus an uplift for costs on an indemnity basis.

(b)     Trial (5.5 days): $33,000 plus an uplift for costs on an indemnity basis (being a daily tariff of $6,000).

(c)     Post-trial work: $15,000 plus an uplift for costs on an indemnity basis.

(d)     Various summonses: $1,500 plus an uplift for costs on an indemnity basis. The summonses in question were DC/Sum 720/2024, which was the Defendant’s application for Mr Taaffe to file a further expert report; and DC/Sum 3512/2022 and DC/Sum 2940/2023, which were summonses for further directions.[note: 4]

5       While the Plaintiffs succeeded in the Unpaid Rent Claim, the Defendant argued that the Plaintiffs should not be entitled to costs because:

(a)     The Defendant had an equitable right of set-off in light of the Wrongful Termination Counterclaim and the Leakage Counterclaim.[note: 5]

(b)     The sum awarded in favour of the Defendant for the Wrongful Termination Counterclaim and the Leakage Counterclaim was larger than the sum awarded in favour of the Plaintiffs for the Unpaid Rent Claim.[note: 6] In this regard, the Defendant’s tabulation of the total award including interest was as follows:

(i)       The total value of the award for the Unpaid Rent Claim after accounting for contractual interest at 10% per annum from the date of writ to the date of judgment interest was $15,324.06.[note: 7]

(ii)       The total value of the award for the Wrongful Termination Counterclaim and the Leakage Counterclaim after accounting for interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment was $134,641.98.[note: 8]

6       The Defendant argued that costs should be on indemnity basis from 14 July 2021 onwards (being the date of commencement of DC/DC 2309/2021 (“DC 2309”)) as there were two offers to settle made by the Defendant that the Plaintiffs did not accept, and the Plaintiffs commenced DC 2309 even though the Defendant’s solicitors sent a pre-action letter to rebut the Plaintiffs’ claims (“Pre-Action Letter”).

7       The first offer to settle was made on 18 November 2022 (“OTS 1”).[note: 9]

(a)     In OTS 1, the Defendant proposed the following:

a.    Both the [Defendant] and [Plaintiffs] shall withdraw their respective claims and file a Notice of Discontinuance with no order as to costs.

b.    This Offer to Settle shall be without prejudice to the rights of the [Defendant’s] insurers to pursue any claim available to the insurers under the contract of insurance between the [Defendant] and the insurers and / or any claim available to the insurers at law and /or at equity against the [Plaintiffs].

c.    If this Offer to Settle is accepted by the [Plaintiffs] by 4pm on 5 December 2022, time being of the essence, parties shall file and serve a Notice of Discontinuance within 7 working days of such acceptance.

d.    If this Offer to Settle is accepted by the [Plaintiffs] after 4pm on 5 December 2022, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] on an indemnity basis from 5 December 2022 until the date of acceptance of this Offer to Settle.

e.    All costs are to be agreed or taxed or fixed by the Court.

f.    In the event this Offer to Settle is accepted, parties shall be disentitled from commencing any further action in respect of all matters raised in the pleadings in DC/DC 2309/2021 save that the [Defendant’s] insurers shall be at liberty to proceed as the insurers deem fit as stated in [paragraph b].

(b)     The Defendant argued that costs should be on an indemnity basis as OTS 1 was more favourable than the outcome under the Judgment because:[note: 10]

(i)       If the Plaintiffs had accepted OTS 1, the Unpaid Rent Claim and the Wrongful Termination Counterclaim would not have been pursued by the parties, and the Plaintiffs would have only had to address the Leakage Counterclaim that the Defendant’s insurers could pursue against them. In that event, the quantum to be attributed to the Leakage Counterclaim raised by the Defendant’s insurers would have been limited to the Leakage Damages Award of $79,285.88 in light of the Judgment.

(ii)       The overall effect of the Judgment (after accounting for interest – see [5(b)] above) was that the Plaintiffs had to pay the Defendant $119,317.92, which was more than the $79,285.88 that the Plaintiffs would have to pay if the Defendant’s insurers pursued the Leakage Counterclaim.

8       The second offer to settle was made on 31 January 2023 (“OTS 2”).[note: 11]

(a)     In OTS 2, the Defendant proposed the following:

a.    The [Defendant] and [Plaintiffs] shall abandon all claims in DC/DC 2309/2021.

b.    The OTS is without prejudice to the rights of the [Defendant’s] insurers to pursue any claim available to the insurers in relation to the flooding / water seepage on 10 January 2021 at [the Shophouse] under the contract of insurance between the [Defendant] and the insurers and / or any claim available to the insurers at law and / or at equity against the [Plaintiffs] and/or the [Plaintiffs’] insurers, whether such claim is pursued in the name of the [Defendant] and/or the [Defendant’s] insurers, and the damages of such claim amount shall be limited to $102,659.60 (not inclusive of any interest, costs or disbursements to be taxed or agreed or fixed by the court).

c.    If this OTS is accepted by the [Plaintiffs] by 4pm on 15 February 2023, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] agreed in the sum of $15,000 (the “Costs”) or alternatively costs to be taxed or fixed by the Court, and parties shall file a Notice of Discontinuance within seven (7) working days of such acceptance.

d.    If the OTS is accepted by the [Plaintiffs] after 4pm on 15 February 2023, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] on a standard basis from date of counterclaim to 15 Feb 2023 and thereafter costs on an indemnity basis from 16 February 2023 until the date of acceptance of this OTS.

e.    In the event this OTS is accepted, parties shall be disentitled from commencing any further action in respect of all matters raised in the pleadings in DC/DC 2309/2021 save that the [Defendant’s] insurers shall be at liberty to proceed, whether in the [Defendant’s] name or otherwise, as the [Defendant’s] insurers deem fit as stated in [paragraph b].

(b)     One key difference between OTS 1 and OTS 2, was that the Defendant (as opposed to the Defendant’s insurer, who was not a party to OTS 2) purported to limit the quantum of the Leakage Counterclaim by the Defendant’s insurer to $102,659.60 under OTS 2.

(c)     The Defendant argued that costs should be on an indemnity basis as OTS 2 was more favourable than the outcome under the Judgment for similar reasons as those raised for OTS 1 (see [7(b)] above). In addition, it argued that the maximum amount the Plaintiffs would have had to pay under OTS 2 if the Defendant’s insurer pursued the Leakage Counterclaim was limited to $102,659.60 plus interest, which was less than the overall effect of the Judgment (after accounting for interest – see [5(b)] above).[note: 12] In this regard, I found the Defendant’s argument peculiar, as I could not see how the Plaintiffs could have enforced the alleged limit against the Defendant’s insurer, who was not a party to OTS 2; and harboured doubts on whether the figure had any meaningful effect on the Plaintiffs.

9       The Pre-Action Letter[note: 13] was sent on 17 June 2021 by the Defendant’s solicitors to rebut the claims in the Plaintiffs’ letter of demand dated 28 May 2021.[note: 14] In the Pre-Action Letter, the Defendant refuted the Plaintiffs’ claims and indicated that it would raise the Wrongful Termination Counterclaim and Leakage Counterclaim if the Plaintiffs decided to commence proceedings.

The Plaintiffs’ position

10     The Plaintiffs took the position that parties should bear their own costs.[note: 15]

11     They argued that costs should be on a standard basis, as DC 2309 was not commenced without basis and the Plaintiffs’ conduct was not dishonest, abusive or improper (Lim Oon Kuin and others v Ocean Tankers (Pte) Ltd (interim judicial managers appointed) [2022] 1 SLR 434 (“Lim Oon Kuin”) at [36]).[note: 16]

12     They took the position that the costs awarded should take into account the manner which the Defendant conducted the proceedings, which resulted in unnecessary costs being incurred, and pointed to the following:[note: 17]

(a)     The Defendant relied on the 4th Wrongful Termination Argument regarding the moratorium under section 19G of the COVID-19 Act even though the moratorium ended before DC 2309 was commenced.

(b)     The Defendant cross-examined one of the Plaintiffs’ witnesses, Mr Beh, for 1.5 days on issues relating to the moratorium under the COVID-19 Act, but did not refer to his evidence in its Closing Submissions.

(c)     The Defendant was dishonest in the conduct of its case by raising various oral agreements, which were made up (ie. the Alleged Additional Terms under the 5 Nov 2020 Agreement, the Alleged 9 Jan 2021 Agreement and the Alleged 12 Jan 2021 Agreement).

(d)     The Defendant proffered 6 arguments that the Plaintiffs wrongfully terminated the 2018 Tenancy Agreement, but only succeeded on one argument, which was an issue of law rather than fact.

(e)     The Defendant referred to Past Incidents 1 to 4 even though they were unrelated to the Leakage Counterclaim.

13     The Plaintiffs also pointed out that the awards of $34,536 and $81,427.88 for the Wrongful Termination Counterclaim and the Leakage Counterclaim respectively were less than the amounts of $78,402 and $155,344.50 sought by the Defendant.

Decision

Entitlement to costs

14     Although the Plaintiffs succeeded in part of their claim, it was apparent that the sums awarded for the Defendant’s counterclaim were significantly larger. I therefore found that costs should be in favour of the Defendant (Saha Ram Krishna & Others v Tan Tai Joum (acting in his capacity as the personal representative of the estate of Tan Hee Liang, deceased [2024] SGHC 9 at [144]).

Whether costs should be on an indemnity basis

15     It was not clear from the Defendant’s Costs Submissions whether it was relying on the provisions under Order 22A rule 9 of the Rules of Court (2014 Rev Ed) (“ROC 2014”) in support of its argument for costs on an indemnity basis, or whether it was relying on the provisions under Order 59 rule 27 of ROC 2014.

16     In its Costs Submissions, the Defendant gave three separate dates which it purported to seek costs on an indemnity basis from: (a) 14 July 2021 in light of the Pre-Action Letter;[note: 18] (b) 5 December 2022 in light of OTS 1;[note: 19] and (c) 31 January 2023 in light of OTS 2.[note: 20] However, in its conclusion, the Defendant ultimately computed costs on an indemnity basis from 14 July 2021 (being the date of commencement of DC 2309),[note: 21] which pre-dated both OTS 1 and OTS 2.

17     It therefore appeared to me that Order 22A rule 9 of ROC 2014 could not have been the primary basis that the Defendant was relying on to seek costs on an indemnity basis, as the said provisions refer to such costs being triggered from the date the offer to settle was served as opposed to being from the date proceedings were commenced.

18     Nevertheless, I considered both Order 59 rule 27 and Order 22A rule 9 of ROC 2014 to reach my decision that costs should not be ordered on an indemnity basis in this case.

Order 59 rule 27 of ROC 2014

19     Under Order 59 rule 27 of ROC 2014, costs are typically awarded on a standard basis, and an order for costs on an indemnity basis is appropriate only in exceptional circumstances (CCM Industrial Pte Ltd v Uniquetech Pte Ltd [2009] 2 SLR(R) 20 (“CCM Industrial”) at [32]). Order 59 rule 27 of ROC 2014 states:

Basis of taxation (O. 59, r. 27)

27.—(1)    Subject to the other provisions of these Rules, the amount of costs which any party shall be entitled to recover is the amount allowed after taxation on the standard basis where —

(a)    an order is made that the costs of one party to proceedings be paid by another party to those proceedings;

(b)    an order is made for the payment of costs out of any fund; or

(c)    no order for costs is required,

unless it appears to the Court to be appropriate to order costs to be taxed on the indemnity basis.

20     The touchstone for an order of costs on an indemnity basis is unreasonable conduct. To this end, I reproduce the Court of Appeal’s decision in Lim Oon Kuin at [36]:

A court, in deciding whether to make an order for indemnity costs, should necessarily have regard to all the circumstances of the case, with the touchstone being that of unreasonable conduct, as opposed to conduct that attracts moral condemnation (see the English High Court decision of Three Rivers District Council v The Governor and Co of the Bank of England (No 6) [2006] EWHC 816 (Comm) at [25]). Some examples of unreasonable conduct include situations where: (a) the action is speculative, hypothetical or clearly without basis; (b) a party’s conduct in the course of proceedings is dishonest, abusive or improper; or (c) where the action amounts to wasteful or duplicative litigation or would otherwise constitute an abuse of process (see the decision of the High Court in Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103 at [22] and [49]). While such a discretion to order indemnity costs “is unfettered, it must necessarily be exercised judicially” (see the decision of the High Court in CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2021] 4 SLR 883 at [222]).

21     The Defendant relied on the existence of OTS 1, OTS 2 and the Pre-Action Letter to justify an award of costs on an indemnity basis.

22     In this regard, I found that there was no unreasonable conduct on the part of the Plaintiffs insofar as OTS 1, OTS 2 and the Pre-Action Letter were concerned, and hence no basis to award costs on an indemnity basis under Order 59 rule 27 of ROC 2014.

23     First, the Plaintiffs’ failure to accept OTS 1 or OTS 2 could not be considered unreasonable. Accepting OTS 1 or OTS 2 would not have resulted in finality for the Plaintiffs insofar as the Leakage Counterclaim was concerned. Even if they accepted OTS 1 or OTS 2, the Plaintiffs would have still been exposed to fresh proceedings being commenced by the Defendant’s insurer to pursue the Leakage Counterclaim.

24     Second, the Plaintiffs’ conduct relating to the Pre-Action Letter was not unreasonable.

(a)     The Pre-Action Letter merely set out the Defendant’s rebuttal of the Plaintiffs’ claims together with the existence of the Defendant’s Wrongful Termination Counterclaim and the Leakage Counterclaim. It included tenuous computations of the potential damages involved, and made no reference to any documentary evidence or other legal or substantive basis that would have extinguished the Plaintiffs’ claims in totality. Consequently, I did not see any merit to the Defendant’s argument that the Plaintiffs should not have commenced DC 2309 after receiving the Pre-Action Letter.

(b)     Further, contrary to the misleading argument in the Defendant’s Costs Submissions that “the Defendant was prepared to let the matter rest if the Plaintiffs did not pursue the Defendant for [the Plaintiffs’ claims]”, the Pre-Action Letter did not reflect an offer of amicable resolution.

25     For completeness, I agreed with the Plaintiffs that there was no unreasonable conduct on their part, or other circumstances that would have justified an award of costs on an indemnity basis against them.

Order 22A rule 9 of ROC 2014

26     Order 22A rule 9 of ROC 2014 sets out instances where a party would be entitled to costs on an indemnity basis when an offer to settle in the prescribed form is made. The award of such costs is however subject to the overriding discretion of the court.

27     It is well established that “an offer to settle must be a serious and genuine offer and not just to entail the payment of costs on an indemnity basis. It should contain in it an element which would induce or facilitate settlement” (Man B&W Diesel S E Asia Pte Ltd and another v PT Bumi International Tankers and another appeal [2004] 3 SLR(R) 267 at [8]). Further, “The whole object of O 22A is to spur the parties to bring litigation to an expeditious end without judgment, and thus to save costs and judicial time” (Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 439 at [37]).

28     I found that OTS 1 and OTS 2 were not serious and genuine offers for the purposes of invoking Order 22A rule 9 of ROC 2014 and awarding costs on an indemnity basis. As mentioned at [23] above, accepting OTS 1 or OTS 2 would not have resulted in finality for the Plaintiffs insofar as the Leakage Counterclaim was concerned, and there was little incentive for the Plaintiffs to accept the same (Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd and others [2001] 1 SLR(R) 38 at [11]).

29     In light of the above, it was not necessary for me to determine whether OTS 1 and OTS 2 were more favourable than the outcome under the Judgment.

Quantification of costs

30     It is trite that the award of costs is in the discretion of the court (Order 59 rule 2(2) of ROC 2014). In exercising this discretion, the court may take into account “the conduct of all the parties, including conduct before and during the proceedings” (Order 59 rule 5(b) of ROC 2014); and the fact that “a party has failed to establish any claim or issue which he has raised in any proceedings, and has thereby unnecessarily or unreasonably protracted, or added to the costs or complexity of those proceedings” (Order 59 rule 6A of ROC 2014).

31     In this regard, I found that the Defendant should only be entitled to two-thirds of its costs as it had failed on various issues that took up a considerable amount of time during the trial and the proceedings:

(a)     First, the Defendant succeeded in only one of its six arguments under the Wrongful Termination Counterclaim.

(i)       The Defendant only succeeded in the 3rd Wrongful Termination Argument, which related to a narrow issue of whether the Plaintiffs satisfied the common law requirement of issuing a formal demand for payment before effecting re-entry of the Shophouse (see [57]-[60] of the Judgment).

(ii)       It failed in the 1st, 2nd and 6th Wrongful Termination Arguments, which revolved around the Defendant’s unmeritorious position regarding: (1) the time period that rent had to remain unpaid before the Plaintiffs could exercise their right of re-entry; (2) the Alleged 9 Jan 2021 Agreement; and (3) the Alleged 12 Jan 2021 Agreement (see [54], [55] and [69]-[71] of the Judgment).

(iii)       The 4th Wrongful Termination Argument, which related to the moratorium under the COVID-19 Act against the termination of lease agreements and a landlord’s exercise of his right of re-entry in relation to the non-payment of rent, was chronologically unsustainable and had no logical basis whatsoever (see [62]-[64] of the Judgment).

(iv)       The Defendant also failed in the 5th Wrongful Termination Argument regarding the Defendant’s withholding of payment of rent because of the Plaintiffs’ breaches of the 2018 Tenancy Agreement (see [65]-[68] of the Judgment).

(b)     Second, the Defendant raised irrelevant facts regarding Past Incidents 1 to 4 even though they had absolutely nothing to do with the main roof of the Shophouse and the Leakage Counterclaim (see [81]-[92] of the Judgment).

32     I therefore fixed costs (on a two-thirds basis) at $27,000, which was fair and reasonable in the circumstances. In coming to this decision, I was mindful that:

(a)     The subject matter of DC 2309 was not complex. The issues involved were largely factual in nature. While an expert was engaged by the Defendant and a few issues of law were addressed, these did not have much effect on the overall complexity of the case, which remained low.

(b)     The Defendant’s solicitors had pegged the costs sought to the amounts for commercial claims under Section III(A)(i)(4) of Appendix G of the Supreme Court Practice Directions 2021,[note: 22] even though Appendix G did not apply for obvious reasons. A tabular comparison showing that the costs sought by the Defendant fell squarely within the range under Appendix G is as follows:

 

Pre-trial

Trial (daily tariff)

Post-trial work

Amount under Appendix G

$25,000 – $70,000

$6,000 – $16,000

Up to $35,000

Amount sought [note: 23]

$27,000[note: 24]

$6,000 x 5.5 days

$15,000



Conclusion

33     Costs were fixed at $27,000 payable by the Plaintiffs to the Defendant. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

34     For completeness, the said costs were fixed on 28 August 2024, before the introduction of the Guidelines for Party-and-Party Costs Awards in District Court Cases in the State Courts of Singapore in Appendix H of the State Courts Practice Directions 2021, which came into force on 13 September 2024.

[note: 1]Defendant’s Costs Submissions dated 26 August 2024 (“DFCostsSubs”)_[13].

[note: 2]DFCostsSubs_[18], [22].

[note: 3]This figure comprises S/N 1, 2, 3, 4 and 6 of DFCostsSubs_[22].

[note: 4]DFCostsSubs_[20]-[21].

[note: 5]DFCostsSubs_[7].

[note: 6]DFCostsSubs_[8].

[note: 7]DFCostsSubs_[6].

[note: 8]DFCostsSubs_[4].

[note: 9]DFCostsSubs_[14], 20-22.

[note: 10]DFCostsSubs_[15]-[16].

[note: 11]DFCostsSubs_[9], 15-18.

[note: 12]DFCostsSubs_[10]-[11].

[note: 13]DFCostsSubs_27-29.

[note: 14]DFCostsSubs_24-25.

[note: 15]Plaintiffs’ Costs Submissions dated 26 August 2024 (“PFCostsSubs”)_[14].

[note: 16]PFCostsSubs_[3]-[4].

[note: 17]PFCostsSubs_[8].

[note: 18]DFCostsSubs_[17].

[note: 19]DFCostsSubs_[16].

[note: 20]DFCostsSubs_[13].

[note: 21]DFCostsSubs_[22].

[note: 22]DFCostsSubs_[18].

[note: 23] DFCostsSubs_[18], [22].

[note: 24]This figure comprises S/N 1, 2, 3, 4 and 6 of DFCostsSubs_[22].

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Cisilia Oktavia Lim v Reins International (Singapore) Pte Ltd
[2024] SGMC 68

Case Number:Originating Claim No 1646 of 2023
Decision Date:30 September 2024
Tribunal/Court:Magistrate's Court
Coram: Teo Guan Siew
Counsel Name(s): Mr Chen Kok Siang Joseph [Joseph Chen & Co] for the claimant; Mr Chai Ming Kheong and Ms Vivian Leung Nga Yu [JC Law Asia LLC] for the defendant
Parties: Cisilia Oktavia Lim — Reins International (Singapore) Pte. Ltd.

Contract – Termination

Employment Law – Contract of service – Termination with notice – Whether wrongful dismissal under s 14(2) Employment Act – Whether Tripartite Guidelines apply

30 September 2024

Judgment Reserved

District Judge Teo Guan Siew:

1       This is an employment dispute involving an allegation of wrongful dismissal. It involves a consideration of the applicability, and the application of the Tripartite Guidelines issued by the Ministry of Manpower on wrongful dismissal.

Factual Background

2       The defendant operates a chain of restaurants under the “Gyu-Kaku” brand.

3       The defendant employed the claimant as a management trainee in October 2008 on a two-year contract. Thereafter, the claimant was promoted to be a supervisor in November 2010, and subsequently Assistant Restaurant Manager in January 2013 and Acting Restaurant Manager in July 2017. However, on 27 April 2018, the defendant issued a letter to the claimant demoting her to Assistant Restaurant Manager (“the Letter of Demotion”).[note: 1]

4       More than a year later, the defendant again promoted the claimant, this time to the position of Restaurant Manager. The letter of promotion dated 23 September 2019 stated that the claimant would be required to undergo a probation period of six months.[note: 2] After the probation period, on 27 March 2020, the defendant provided the claimant with a letter of appointment as the Restaurant Manager (“the 27 March 2020 Letter”).[note: 3] The 27 March 2020 Letter set out the terms and conditions of the employment, including on matters such as salary, working hours, annual leave and termination. The claimant signed the 27 March 2020 Letter to accept its terms, and also acknowledged therein that she had read through and understood the terms and conditions in an Employee Handbook.

5       On 21 September 2020, the defendant issued a letter to the claimant titled “1st Warning Letter” which stated as follows (“the 1st Warning Letter”):[note: 4]

Based on our discussion, we have confirmed your hands-off approach and lack of responsibility in handling staff issues at the outlet, thus resulting in the loss of manpower due to low morale at the outlet you are responsible for, and dereliction of your duty as an outlet manager.

Due to your neglect of your duty as stated above, the company expects you to address this immediately and corrective action to be taken for this matter. Failure to comply, the Company will not hesitate to take further action, including termination, should there be any future occurrence of any similar offence.

6       The claimant signed at the bottom of the 1st Warning Letter where it was stated that she acknowledged receipt of the letter and accepted the contents therein.

7       As the claimant is a foreigner, she required a work pass issued by the Ministry of Manpower (“MOM”) in order to work in Singapore. The defendant renewed her work pass several times in the course of her employment. The latest renewal was in March 2021. In a declaration form dated 18 March 2021 which was submitted as part of the renewal application,[note: 5] the defendant stated the claimant’s occupation as Assistant Restaurant Manager. According to the defendant, this was an inadvertent clerical error as the claimant was already the Restaurant Manager by then.[note: 6] Following the renewal application, MOM issued a letter dated 7 April 2021 to the claimant presenting her with the new work pass card which was valid from 18 March 2021 till 16 April 2024 (“the MOM Work Pass Letter”).[note: 7]

8       The defendant eventually decided to terminate the employment of the claimant before the expiry of the claimant’s work pass. In a letter dated 15 September 2022 addressed to the claimant (“the Termination Letter”),[note: 8] the defendant’s Managing Director Mr Hinooka Yukihiko (“Mr Yuki”) on behalf of the defendant stated:

RE: TERMINATION WITH NOTICE IN LIEU

Dear Ms Cisilia Oktavia Lim,

We regret to inform you that we terminate your employment service after deeply [sic] consideration of your working performance.

We hereby will inform you that your last day will be on 14 October 2022, due to there is an outstanding 25 days of Annual Leave unclear [sic], we will use the remaining 22 days Annual Leave to clear your remaining notice thus after the deduction of Annual Leave your last day is 15 September 2022. The company will give you back encashment of the remaining 3 days Annual Leave.

Parties’ Pleaded Cases

9       The claimant pleads that the defendant’s issuance of the Termination Letter to her constituted a wrongful dismissal, because it was a summary dismissal without basis or justification, without reasons, and without the conducting of an inquiry to give her the opportunity to address any allegations of work performance issues.[note: 9] She also pleads that the dismissal was wrongful because the defendant did not give her any warning letter since the start of her new work pass period (ie from 18 March 2021 onwards),[note: 10] and that the 1st Warning Letter issued earlier in September 2020 was invalid.[note: 11] According to the claimant, there was a valid employment contract between parties till 16 April 2024 (ie the expiry date of her latest work pass), and that the defendant had committed a repudiatory breach of the contract by wrongfully dismissing her on 15 September 2022.[note: 12]

10     In addition to damages for wrongful dismissal, the claimant further seeks payment for 25 days of annual paid leave[note: 13] and alleged salary arrears for the one-month period from 15 September 2022 to 14 October 2022.[note: 14] The claimant originally had another claim for alleged outstanding overtime pay, but she subsequently withdrew it before trial commenced.[note: 15]

11     The Defence, on the other hand, is that the claimant was provided with a valid notice of termination in the form of the Termination Letter, in accordance with the employment contract and in compliance with s 10(1) of the Employment Act 1968 (“the Employment Act”).[note: 16] The defendant further pleads that there was just and sufficient cause to terminate the claimant due to her unsatisfactory work performance over a period of time.[note: 17]

12     In relation to annual leave, the defendant’s case is that the claimant agreed, at a meeting on 15 September 2022 with the defendant’s Mr Yuki and Human Resource Executive Ms Clara Loh (“Ms Clara”), that the claimant would utilise 22 days out of her remaining annual leave of 25 days to serve her one month’s notice period, and for the balance three days of leave to be encashed.[note: 18] This was captured accordingly in the Termination Letter, which the claimant signed. The Defence is that a sum equivalent to three days of annual leave was paid to the claimant.[note: 19] Further, the defendant pleads that the claimant was paid her salary for the month of September 2022 as well as for the period from 1 October to 14 October 2022, and as such, there were no outstanding salary arrears.[note: 20]

Analysis

13     Before considering whether there was wrongful dismissal, a preliminary issue is what constituted the contract of employment, as this is a point of dispute between parties.

What constituted the employment contract between parties?

14     The defendant’s position is that the 27 March 2020 Letter, together with the Employee Handbook referred to therein, constituted the contract of employment between parties at the material time until the defendant decided to terminate the employment relationship on 15 September 2022. On the other hand, the claimant’s counsel asserts in written submissions that the relevant contract of service was not the 27 March 2020 Letter and instead was evidenced by the MOM Work Pass Letter.[note: 21] According to this argument, this means that the period of the contract between parties at the material time was in fact from 18 March 2021 (the date of issuance of the latest work pass) to 16 April 2024 (when that work pass would expire). More generally, the claimant’s counsel submits that each time the defendant renewed the work pass for the claimant, there came into being a fresh contract of service for the validity period of that relevant work pass.[note: 22]

15     I do not agree with the arguments by the claimant’s counsel. The MOM Work Pass Letter is self-evidently just a letter from the authority presenting the work pass to the claimant. It is not, and cannot amount to evidence of, an agreement between the claimant and the defendant. The MOM Work Pass Letter does not contain any terms and conditions of the employment. It is not possible to imply or infer any employment terms from the letter.

16     The 27 March 2020 Letter was entitled a “Letter of Employment” and set out the detailed terms and conditions, covering issues of salary, work location, working hours, annual leave, duties, and termination and notice. Given that the law on employment can be said to be partly contractual and partly statutory, it is instructive to examine what MOM regards as an employment contract. MOM states on its website that a contract of service “defines the employer-employee relationship, including the terms and conditions of employment”, and “must include key employment terms and essential clauses, such as hours of work and job scope”.[note: 23] Such key employment terms include basic salary, fixed allowances, overtime pay, and type of leave.[note: 24] All such key employment terms were provided for in the 27 March 2020 Letter, which was signed by both parties. Notably, the 27 March 2020 Letter did not specify any fixed duration for the period of employment. There is no evidence before the Court of any further document after the 27 March 2020 Letter which sought to govern the employment relationship between the parties.

17     My view is therefore that the 27 March 2020 Letter (together with the Employee Handbook)[note: 25] continued to be the operative contractual document that governed the parties’ employment relationship at the material time of the defendant’s decision to terminate the employment contract.

Wrongful Dismissal

Common law on contracts

18     Clause 7 in the 27 March 2020 Letter contains the contractual terms pertaining to termination and giving of notice. Clause 7.2, which applies after the probation period of six months, provides as follows:

Termination of the contract of service between the Company and the Employee can be initiated by either the Company or the Employee. Such notice must be in writing. The period of notice shall be a minimum of one (1) month or one (1) month’s salary in lieu of notice.

19     In addition, clause 7.3 states that “[t]he company reserved the right not to give any reasons for termination of employment contract”.

20     In the Employment Handbook, it is similarly provided under clause 19.1 that either party can terminate the contract by giving notice in accordance with the letter of employment or with at least one month’s notice, as follows:

19.1 Termination with Prior Notice

The Company recognises that either the Company or an Employee may on its/his/her own volition and for various reasons wish to end the employment relationship. As such, either the Company or an Employee shall be at liberty to terminate an Employee’s contract of service with the Company in accordance with the termination provisions set out in the Letter of Employment.

Where the Letter of Employment does not contain any provisions for termination, his/her contract of service may be terminated by either the Company or an Employee giving at least one (1) month prior notice to the other party or payment to the other party of a sum equivalent to one (1) month’s salary in lieu of notice …

21     It should be noted that s 10 of the Employment Act contains certain requirements pertaining to termination of employment contracts:

Notice of termination of contract

10.–(1)    Either party to a contract of service may at any time give to the other party notice of the firstmentioned party’s intention to terminate the contract of service.

(2)    The length of the notice must be the same for both employer and employee and is to be determined by any provision made for the notice in the terms of the contract of service, or in the absence of such provision, must be in accordance with subsection (3).

(3)    The notice to terminate the service of a person who is employed under a contract of service must be at least –

…

(c)    2 weeks’ notice if the person has been so employed for 2 years or more but less than 5 years; and

(d)    4 weeks’ notice if the person has been so employed for 5 years or more.

22     The contractual provisions on termination of contract in the 27 March 2020 Letter and the Employment Handbook comply with s 10. In particular, the length of the notice period is the same for both the claimant as employee and the defendant as employer (in compliance with s 10(2)) and is at least one month (in accordance with s 10(3)).

23     In the Termination Letter, it was stated that the claimant’s last day of employment would be on 14 October 2022. Given that the letter was issued to the claimant on 15 September 2022, this clearly constituted the giving of one month’s notice, in accordance with clause 7.2 of the 27 March 2020 Letter and clause 19.1 of the Employee Handbook. Even though the claimant did not have to work from 15 September 2022 onwards, this was only because of the utilisation of her unconsumed annual leave for the one month notice period. I will return to this point later as the claimant also disputes the issue of her annual leave.

24     Given that the termination of the contract by the defendant was in accordance with the notice requirement under the contract, it is unclear what the basis of the claimant’s assertion of wrongful dismissal is. The statement of claim alleges that there was summary dismissal, but that is obviously not the case as notice of termination was given. As for the pleading that the dismissal was “without basis”, “without justification”, “without reasons in writing” and “without giving any prior warning letter”, it is equally unclear how these constituted breaches of the employment contract so as to entitle the claimant to damages for wrongful dismissal. It must be borne in mind that the employment contract expressly provides that either the claimant or defendant can terminate by giving notice, and there is no requirement to give reasons or for there to be a warning letter preceding the termination.

25     It is only at trial and in closing submissions that the claimant’s counsel has referred to the Tripartite Guidelines on Wrongful Dismissal (“the Tripartite Guidelines”) issued by the Minister under s 35 of the Employments Claims Act 2016 (“the Employment Claims Act”), and to that extent, appears to be grounding the claimant’s cause of action under the Employment Act, specifically s 14(2).

Dismissal “without just cause or excuse”

(1)   Applicability of s 14(2) Employment Act to present case

26     Under s 35 of the Employment Claims Act, the Tripartite Guidelines are issued by the Minister for the purposes of s 20(7) and s 25(4) of the same Act. Section 20(7) pertains to wrongful dismissal disputes brought before the Employment Claims Tribunal (constituted under s 4 of the State Courts Act 1970) (“the ECT”), whereas s 25(4) deals with appeals against orders made by the ECT to the General Division of the High Court. “Wrongful dismissal disputes”, in turn, is defined under the Third Schedule of the Employment Claims Act to mean disputes in relation to which an employee may lodge a claim mentioned in s 14(2) of the Employment Act over whether the employee has been dismissed without just cause or excuse by the employer.

27     Section 14(2) of the Employment Act provides that an employee who considers that he or she has been dismissed “without just cause or excuse” may lodge a claim under s 13 of the Employment Claims Act for reinstatement or compensation, which would be heard by the ECT. The present proceedings are brought before the Magistrate’s Court, as the initial claim amount in the Statement of Claim (before the dropping of the claim for overtime pay) exceeded the jurisdictional limit of the ECT. However, s 14(2) expressly refers to such claims for dismissals “without just cause or excuse” being brought before the ECT. As such, it is not immediately clear whether s 14(2), and the associated Tripartite Guidelines issued for interpretating what constitutes wrongful dismissal, are applicable to the present dispute.

28     In Longitude 101 Pte Ltd v Navinea Kanapathy Pillai [2024] SGDC 47, the District Court considered the Tripartite Guidelines in determining whether there was sufficient cause for dismissal of pregnant employees under s 84(1)(b) of the Employment Act. In the District Court’s view, there was no reason why the courts should not take the guidelines into account as otherwise it could mean the adoption of different rules by the courts and the ECT. Indeed, it would appear to be a strange position at law if such guidelines issued by the MOM applied only to claims below $20,000 (being the jurisdictional limit of the ECT) and not those above.

29     Also, although no specific arguments were canvassed, both parties proceeded on the basis that the Tripartite Guidelines applied to the present case in determining whether there was wrongful dismissal.

30     Accordingly, I shall proceed to examine the case on the basis that action can be brought for wrongful dismissal before this Court based on similar principles of whether dismissal was without just cause or excuse under s 14(2) of the Employment Act, as interpreted with the Tripartite Guidelines in mind.

(2)   Whether “dismissal without just cause or excuse” has been established

31     I reproduce below the parts of the Tripartite Guidelines dealing with the situation where the dismissal is for misconduct or poor performance:

(II) Circumstances where misconduct or poor performance are cited

4.    Where misconduct or poor performance is cited as the reason for dismissal, the employer bears the burden of proving that ground for dismissal. The dismissal is considered wrongful if the employer is unable to do so. (“Guideline 4”)

Misconduct

5.    Misconduct is the only legitimate reason for dismissal without notice. An employer may, after due inquiry, dismiss an employee without notice for misconduct. Misconduct includes but is not limited to theft, dishonest or disorderly conduct at work, insubordination, and bringing the organisation into disrepute. (“Guideline 5”)

Poor Performance

6.    In a case of poor performance, an employer cannot dismiss without notice. The employer would need to substantiate if poor performance is cited as the reason for dismissal with notice. (“Guideline 6”)

32     It should first be appreciated that Guideline 5 on dismissal without notice for misconduct does not apply in the present case because as explained above, the claimant was given one month’s notice of termination, and the defendant also did not refer to any misconduct by the claimant in terminating her employment.

33     The Termination Letter stated that the defendant was terminating the claimant's employment after consideration of her work performance. As such, Guideline 6, dealing with dismissal on the basis of poor performance, is relevant. Under Guideline 6, the dismissal must be with notice, and the employer needs to substantiate if poor performance is relied on as reason for the dismissal. However, unlike Guideline 5 for dismissal on basis of misconduct, there is no reference to the holding of an inquiry before the employer can dismiss the employee for poor performance.

34     Illustration 2 in the Tripartite Guidelines illustrates the application of Guideline 6. As extensive reliance was placed by the claimant’s counsel on Illustration 2, I reproduce it below:

B was employed as a warehouse assistant. She was involved in multiple incidents that resulted in poor quality services provided by the warehouse. Her supervisor documented these shortcomings in the performance reviews. Despite this, her performance did not improve. The employer dismissed B with notice and stated that this was because of B’s poor work performance.

This dismissal was not wrongful. There was documented proof of B’s poor performance and the employer rightly exercised his right to terminate (with notice) the employment.

If, on the other hand, the employer terminated the contract without notice, the dismissal would have been wrongful because it is not clear that B’s performance was so poor as to amount to misconduct. Furthermore, the employer had not conducted a proper inquiry and given B a chance to be heard.

35     Illustration 2 suggests that in terms of substantiating the poor work performance, that could be done by the employer documenting the shortcomings such that there is documentary proof of the poor performance.

36     Under Guideline 4, the employer bears the burden of proving the employee’s poor performance as the ground for dismissal. The defendant relies on the following to substantiate the claimant’s poor work performance:

(a)     The Letter of Demotion;

(b)     The 1st Warning Letter;

(c)     An incident involving the repair of the defendant’s computer (“the Computer Incident”); and

(d)     An incident of negative customer feedback (“the Customer Complaint”).

(A)   The Letter of Demotion

37     The Letter of Demotion was issued to demote the claimant from Acting Restaurant Manager to Assistant Restaurant Manager back in April 2018, almost two years before the applicable employment contract in the form of the 27 March 2020 Letter was issued to the claimant. Within that period, the defendant had also chosen to promote the claimant to a full Restaurant Manager on 23 September 2019. In my view, given the passage of time and how the claimant had subsequently recognised the improvement in the claimant’s work performance in promoting her, the Letter of Demotion can no longer be relied upon as a basis for justifying any poor work performance for the purpose of terminating her employment.

(B)   The 1st Warning Letter

38     The defendant’s Managing Director, Mr Yuki, testified that the basis for issuing this warning letter was the departure of five part-time staff members who at their exit interviews had indicated that they were leaving because they had issues working with the claimant.[note: 26] This is consistent with the reference in the 1st Warning Letter to the claimant’s hands-off approach and lack of responsibility in handling staff issues which led to low morale and loss of manpower. In contrast, the claimant’s explanation, that this letter was issued because of the problems with an elderly kitchen staff,[note: 27] does not cohere with the reference to loss of manpower; and in any event as the Restaurant Manager at that material time, any issues faced by a kitchen staff would have been within the claimant’s responsibility.

39     The claimant also signed on the 1st Warning letter indicating her acceptance of the contents. While this does not mean she necessarily agreed with the employer’s evaluation of her performance, this was an acknowledgement on her part of her employer’s view of her poor work performance and she was put on notice of possible further action like termination if she did not address the issue highlighted.

40     The claimant’s counsel makes various arguments for why the defendant is not entitled to rely on the 1st Warning Letter as substantiation of the claimant’s poor work performance in order to dismiss her. First, he argues that the claimant was subsequently promoted such that the effect of the 1st Warning Letter had effectively been extinguished. This argument is not sustainable, because it has not been established that there was a promotion after the 1st Warning Letter. At the time of the 1st Warning Letter on 21 September 2020, the claimant was already a full Restaurant Manager, having been promoted to that position since September 2019. Even though the declaration form submitted for her work pass renewal on 18 March 2021 reflected her position as Assistant Restaurant Manager, the defendant has explained that this was a clerical error. This is consistent with how there is no documentary evidence before the Court of the claimant having ever been demoted from her position of Restaurant Manager; indeed, the claimant has not taken such a position or adduced evidence to that effect. Second, the claimant’s counsel contends that the 1st Warning Letter is “water under the bridge” because the defendant chose to subsequently renew the claimant’s work pass. I have already explained above that I disagree with claimant’s counsel’ submission that a new contract came into being with the issuance of each successive work pass by MOM. Also, a renewal of her work pass is not necessarily reflective that her work performance has improved: it can simply mean that her performance did not become so unsatisfactory as to warrant ending the employment relationship.

41     In my view, the 1st Warning Letter is a written record of an instance of the defendant’s negative assessment of the claimant’s work performance and can be considered as part of the defendant’s substantiation of the claimant’s poor work performance.

(C)   The Computer Incident

42     The defendant also relies on an incident where the claimant had gone ahead to get a vendor to conduct certain repairs to the restaurant’s computer. According to the defendant, the claimant did this without first seeking the approval of Mr Yuki, contrary to Mr Yuki’s instructions to all the defendant’s employees that they had to first obtain his approval or consent before proceeding with any such repairs.

43     The relevant phone messages exchanged between the claimant and Mr Yuki in a group chat (together with other officers of the defendant including a Mr Yuta) during the material time of the Computer Incident are reproduced below:[note: 28]

Message from Claimant

30 July 2022 at 15:05

Dear Yuta san

Cc Yuki san

UE outlook have error again today. We unable to receive any emails today. Had contacted Darren from Sakura & he said there is extra charge for him to check into our PC today.

Would like to seek approval for this. Kindly advice.

Thank u.

Message from Mr Yuki

30 July 2022 at 15:33

@Cisilia A0021

@Yuta (Singapore)

I received invoice from SAKURA now. It’s very expensive. Cos it’s weekend today.

Of course, we should do the necessary repairs, but are you ordering with an understanding of the contract?

Do you know any special weekend rates?

Who approved this high payment?

Darren came to UE last time, but same trouble happened again, right?

We can negotiate with SAKURA boss.

Cos same trouble.

We can insist warranty period.

But ordered and done repair.

I can’t say anything from now.

Thank you.

Message from Claimant

30 July 2022 at 15:53

Dear Yuki san

Apologies for the misunderstanding in between.

I just checking with him about the same issue happen.

I not aware that its already count as charged.

My deeply apologies.

Will learn from this mistake.

Thank you.



44     As can be seen from Mr Yuki’s message above, he was concerned with the expensive weekend rate for the repair after receiving the invoice from the vendor, Sakura. He further referred to how they could have negotiated with the vendor on the rate or to have the repair covered under the warranty.

45     Counsel for the claimant made many arguments in relation to the Computer Incident, such as how the repair was necessary in order for the operations of the restaurant to continue, the fact that Sakura was the defendant’s authorized vendor, and how it should be Mr Yuki’s and not the claimant’s responsibility to negotiate with the vendor in relation to the rates and the warranty issues. These arguments, however, miss the point. This is because the issue was not about whether the repair was necessary, or whether the claimant had gone to a wrong vendor or failed to negotiate for a better rate. Instead, the defendant’s complaint was that the claimant failed to first obtain the express approval of the Managing Director before such repairs were undertaken, as was required by the company’s policy.

46     In this connection, the claimant’s counsel’s argument that Mr Yuki’s statement that “[o]f course, we should do the necessary repairs” show that he had given consent or approval, is misconceived. Read in the context of the entire message, it is clear that Mr Yuki was saying that although repairs needed to be done, the ordering of the repairs should not have been done without approval. This explains why he asked “[w]ho approved the high payment” and why he questioned whether the claimant was “ordering with an understanding of the contract”. I should add that the claimant’s position that the repair was carried out only after Mr Yuki’s message at 15:33hrs is also at odds with the contents of the message. In particular, Mr Yuki, after setting out his unhappiness with the expensive weekend rate and how approval for it was not obtained, then said “[b]ut ordered and done repair” and that he therefore “can’t say anything from now”. This clearly indicates that the vendor had already carried out the repair by then.

47     In any event, the point is not so much about when the repair was actually done, but rather that the act of ordering the repair and incurring the costs of such repair was done by the claimant without Mr Yuki’s approval. Indeed, the subsequent message from the claimant at 15:53hrs suggests that she herself appreciated that she had made the mistake of incurring the charges for the repair without having first obtained approval for it to be carried out.

48     The claimant’s counsel also challenged the defendant’s reliance on the Computer Incident on the basis that this episode was not separately documented as an instance of poor work performance, and that no warning was given to the claimant. However, it must be borne in mind that the requirement under Guideline 6 is one of substantiation, ie the employer must be able to provide some justification for taking the position that the employee’s performance was poor. The reference to documentation is only found in the Illustration to the Guideline. In other words, documenting the shortcomings is just one way an employer can discharge that burden of substantiating the basis for dismissal on the ground of poor performance; documentation and issuing a warning are not prescribed requirements under Guideline 6.

49     In my view, the evidence of Mr Yuki and the phone messages on the Computer Incident show that this was one instance of unsatisfactory work performance which can be taken into account by the defendant in their assessment of whether to dismiss the claimant.

(D)   The Customer Complaint

50     Finally, the defendant also relies on a customer complaint as a further example of the claimant’s poor work performance. In an email dated 2 June 2022, the customer complained that the service standard of the restaurant had dropped during his recent visit, particularly as regards the poor attitude of the serving staff and the long waiting times to place orders and for the food to arrive.[note: 29] The claimant subsequently put up an email report addressed to Mr Yuki in relation to the complaint, explaining why the generation of the QR code for ordering took time and how the customer had tried to place orders after the restaurant’s last order timing of 9.30pm.[note: 30]

51     The claimant’s counsel submits that this cannot be treated as an instance of poor performance by the claimant, because it was the customer who was unreasonable in wanting to place orders after the last order timing, and Mr Yuki did not conduct any fact finding of his own, such as by interviewing the staff concerned or to follow up with the complaining customer. However, Mr Yuki’s position was that what he took issue with was not so much the alleged bad service that evening per se, but rather that, in his view, the claimant did not sufficiently deal with the issue and address the concern of service standards dropping at the restaurant. In particular, he did not find the claimant’s email report satisfactory, because she only dealt with matters concerning the time taken for the customer’s ordering process and the fact that he wanted to put in an order after the last-order timing, but not the actual issue of service quality and specifically the unwelcoming or unfriendly attitude of the staff.[note: 31]

52     I note that the length of time taken for the QR code to be generated for orders to be placed was specifically highlighted by the complaining customer, and his displeasure with poor service attitude did also include the manner in which the service staff had informed him about the last order timing. To this extent, the claimant’s explanation in her email on these two specific matters can be said to be relevant and to pertain to the reasons behind why the customer might have perceived the service as poor. It is therefore arguable that that the claimant in her email report was seeking to address the issue of service standards, albeit it might not have been to the standard or level of detail that the defendant expected.

53     In this connection, it may be queried whether the court should engage in a detailed examination of the underlying merits of an employer’s assessment of the employee’s work performance and to substitute the court’s own view. At the end of the day, Guideline 6 of the Tripartite Guidelines states that the employer must be able to substantiate that there was poor work performance. In other words, there must be basis or justification for the employer to form such a view on poor performance. In my view, considered together, the 1st Warning Letter, the Computer Incident, and the Customer Complaint do afford the defendant with sufficient basis and constitute substantiation of the claimant’s poor performance. In respect of the claimant’s counsel’s arguments that the defendant had failed to conduct any inquiry in relation to the Computer Incident and the Customer Complaint, as I have mentioned earlier, there is no requirement to hold an inquiry under Guideline 6 where dismissal is with notice for poor performance. An inquiry needs to be held only if dismissal is without notice and for misconduct, as provided for under Guideline 5 which is not applicable in the present case.

54     Accordingly, in my judgment, the claimant has not established that she was wrongfully dismissed with reference to Guideline 6 of the Tripartite Guidelines.

55     In reaching this conclusion that there was no wrongful dismissal, it is pertinent for me to further point out that in fact, two other Guidelines in the Tripartite Guidelines appear to be more relevant for this case. These two Guidelines are Guideline 7, which apply to circumstances where the right to contractually terminate is invoked, and Guideline 9, which apply to circumstances where dismissal with notice is wrongful.

56     Guideline 7 states as follows:

(III) Circumstances where the right to contractually terminate is invoked

7.    As both employee and employer have a right to contractually terminate employment with notice, dismissals with notice are presumed not to be wrongful.

57     Guideline 9 states as follows:

(IV) Circumstances where dismissal with notice is wrongful

9.    To succeed in claiming that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal. Wrongful reasons include discrimination, deprivation of benefit, or to punish an employee for exercising his employment right. If an employer gives a reason for dismissal with notice, but the reason given is proven to be false, the dismissal would also be wrongful.

58     As I have explained above, the present case is one where the employer exercised its contractual right to terminate with notice, because the Termination Letter gave the claimant a month’s notice of termination in accordance with the contract of employment in the form of the 27 March 2020 Letter and the Employee Handbook. As such, Guideline 7 clearly applies, and it is curious that neither party has referred to it. Under Guideline 7, there would in fact be a presumption that the dismissal with notice of the claimant was not wrongful; and under Guideline 9, in such cases of dismissal with notice, it is for the employee instead to substantiate a wrongful reason for the dismissal. Similar to Guideline 7, neither party has relied on Guideline 9 in their respective cases, except that the claimant’s counsel did refer to it in the claimant’s reply submissions.[note: 32] Wrongful reasons under Guideline 9 can include discrimination, deprivation of benefit, or punishment for exercising one’s employment right. Such wrongful reasons have evidently not been established in the present case. In this regard, I disagree with the claimant’s counsel’s assertion that the defendant discriminated or was biased against the claimant simply because of the Customer Complaint. As highlighted above, the defendant essentially regarded the claimant’s performance as unsatisfactory in not sufficiently addressing the issue of poor service standards as perceived by the customer. There is no basis to say that this somehow amounted to any kind of discriminatory treatment of the claimant. Equally, as I will come to below, there is no basis for saying that the defendant deprived the claimant of her benefit in terms of annual leave.

59     A consideration of specifically Guidelines 7 and 9 reinforces my view that there was no wrongful dismissal within the meaning in the Tripartite Guidelines.

60     For the above reasons, I find that the claimant has not established any breach of the employment contract by the defendant which would entitle her to damages at common law, nor has she shown that there was wrongful dismissal without just cause or excuse within the meaning in s 14(2) of the Employment Act.

Alleged salary arrears and annual leave claims

61     The claim for alleged salary arrears for the one-month period from 15 September 2022 to 14 October 2022 is clearly unsustainable. It cannot be disputed that the claimant was paid her salary for the full month of September 2022. The defendant has produced the September payslip,[note: 33] as well as documentary proof of payment in the form of the defendant’s bank transfer history that showed a transfer of $4,050 to the claimant on 29 September 2022.[note: 34] Similarly, there was an October payslip,[note: 35] and the defendant’s bank transfer history showed a transfer of $1,805.67,[note: 36] which comprised her salary for 1 to 14 October 2022 and the three days of annual leave that was encashed. When the claimant was shown these documentary records at trial, she accepted under cross examination that she was indeed paid these sums of money by the defendant.

62     The actual complaint by the claimant at trial is that she would have preferred to work instead of using her annual leave days for the one month notice period. However, that was not what the parties agreed at the material time. The Letter of Termination, which clearly set out that the 22 days of leave was to be used to clear the one month notice period, was signed by both Mr Yuki and the claimant. The evidence from both Mr Yuki[note: 37] and Ms Clara[note: 38] was that the claimant did not raise any objections on this manner of using her leave days. Indeed, it was the claimant’s own evidence at trial that she did not raise any issues with the calculation and utilisation of her remaining annual leave. Her explanation, that she did raise any issues because she thought it would not have made a difference, is besides the point. By choosing not to object and by signing the Termination Letter, the claimant had agreed to using the 22 days of annual leave to serve her notice period and encashing the remaining three days. In fact, it is not even clear from the employment contract that she is entitled to insist on encashment of her outstanding leave days.

63     It follows from the above that there is no payment outstanding in respect of annual leave, nor any issue of deprivation of employee benefits, since all the claimant’s remaining leave days as of the date of termination were either consumed or encashed.

Conclusion

64     For the foregoing reasons, I dismiss the claimant’s claims.

65     Costs and disbursements are to be fixed by this Court if not agreed upon. The parties are to file and exchange their respective written submissions (limited to ten pages) on costs and disbursements within seven days hereof, if required.

[note: 1]ABOD Vol 1, p 23.

[note: 2]ABOD Vol 1, p 41.

[note: 3]ABOD Vol 1, p 49.

[note: 4]ABOD Vol 1, p 63.

[note: 5]ABOD Vol 1, pp 70-73.

[note: 6]Defence (Amendment No. 1) at para 124.

[note: 7]ABOD Vol 1, p 75.

[note: 8]ABOD Vol 1, p 140.

[note: 9]Statement of Claim (Amendment No. 1) at para 22(1)-(3), (5).

[note: 10]Statement of Claim (Amendment No. 1) at para 22(4).

[note: 11]Statement of Claim (Amendment No. 1) at para 22A.

[note: 12]Statement of Claim (Amendment No. 1) at para 22A(6).

[note: 13]Statement of Claim (Amendment No. 1) at paras 14-17.

[note: 14]Statement of Claim (Amendment No. 1) at paras 18-19.

[note: 15]BA 35 at para 40.

[note: 16]Defence (Amendment No. 1) at para 68(c) and para 71.

[note: 17]Defence (Amendment No. 1) at para 104.

[note: 18]Defence (Amendment No. 1) at para 68(a)-(d).

[note: 19]Defence (Amendment No. 1) at para 68(e).

[note: 20]Defence (Amendment No. 1) at paras 68(f) and 69.

[note: 21]Claimant’s Closing Submissions at [6].

[note: 22]Claimant’s Closing Submissions at [8].

[note: 23]Defendant’s Bundle of Authorities for Reply Submissions, at p 196.

[note: 24]Defendant’s Bundle of Authorities for Reply Submissions, at p 201.

[note: 25]The latest version of the Employee Handbook dated 29 July 2020: ABOD Vol 2 at p 1-23.

[note: 26]BA 8, at [29].

[note: 27]BA 25 at [36(12)].

[note: 28]ABOD Vol 1, p 127-130.

[note: 29]ABOD Vol 1, p 102.

[note: 30]ABOD Vol 1, p 103.

[note: 31]BA 166-167, at [40]-[42]. NE 3 July 2024 at p 42 (lines 16 to 24).

[note: 32]Claimant’s Reply Submissions at p 4.

[note: 33]ABOD Vol 1, p 136.

[note: 34]ABOD Vol 1, p 141.

[note: 35]ABOD Vol 1, p 142.

[note: 36]ABOD Vol 1, p 143.

[note: 37]BA 172-173 at [62]-[63]; NE 3 July 2024 at p 68 (lines 1 to 12).

[note: 38]BA 306-307 at [14].

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Lim Sheng Long v Bui Thi Thanh Huyen
[2024] SGDC 249

Case Number:Originating Claim No 74 of 2023
Decision Date:19 September 2024
Tribunal/Court:District Court
Coram: Sia Aik Kor
Counsel Name(s): Lum Jing Wen Crystal and Mohamed Baiross (I.R.B. Law LLP) for the Claimant; Au-Yong Kok Keong Kenneth and Chan Yuen Ling (Ramdas & Wong) for the Defendant.
Parties: Lim Sheng Long — Bui Thi Thanh Huyen

Gifts – Inter vivos – Whether money transferred were loans or gifts

19 September 2024

Judgment reserved.

District Judge Sia Aik Kor:

Introduction

1       This is the Claimant’s claim against the Defendant for a sum of $266,897, being $274,397 being loans made to the Defendant pursuant to her requests between 2015 and 2018 less repayments of $7,500[note: 1]. Due to the jurisdictional limit of the District Court, the Claimant is capping his claim at $250,000. The Defendant admits to receiving the sum of $209,897 but claims that the monies given to her were gifts.

The Claimant’s case

2       According to the Claimant, the Defendant was his wife’s friend and he was her landlord between 2012 to 2015 at 173 Yishun Avenue 7 #XXX. He began a romantic relationship with the Defendant in or around October 2014. While they were in a relationship, the Defendant frequently informed the Claimant that she was heavily in debt and was in constant urgent need of money. It is undisputed that over 2015 to 2018, the Claimant transferred various sums of money to the Defendant. The Claimant claimed that these were loans which the Defendant had promised to return within 6 months to a year[note: 2]. While the Claimant does not have contemporaneous documents indicating that the sums transferred were in the nature of loans, he is relying on IOUs signed by the Defendant as well as WhatsApp text messages and audio recordings between them where the Defendant had used the words “borrow” and “return”. According to the Claimant, the Defendant repaid the sum of $1,000 to the Claimant at the end of 2015 and the sum of $2,500 at the end of 2016[note: 3].

The Defendant’s case

3       The Defendant’s case is that the various transfers were gifts as they were in a relationship. She took the transfers as a sign of his love and affection and his intention to help her as she was struggling financially[note: 4]. When the sums were given to her, the Claimant did not mention that they were “loans” or how much she would have to pay and when and he was aware that she had no means to repay him[note: 5]. However, the Claimant was controlling and abusive and the Defendant tried to break up with the Claimant which resulted in what has been described as an “on-off” relationship between 2016 and 2018. It was during this period that the Claimant claimed that the monies he had given her were loans but he would not ask her to return the money as long as she stayed in a relationship with him[note: 6]. The Claimant would force her to sign IOUs and she would make repayments but the IOUs would be torn up when they resumed their relationship and he would continue to give her gifts of cash[note: 7]. The text messages and audio recordings were therefore to be viewed in that context.

Issues to be determined

4       Two issues arise in this case:

(a)     the quantum of the transfers made by the Claimant to the Defendant; and

(b)     whether the transfers were in the nature of loans or gifts.

Issue 1: Quantum of Transfers

5       The series of transfers made comprising the claimed sum are as follows:

S/N

Date of Transfer

Mode of Transfer

Reason for Transfer

Amount

Did Defendant admit to receiving these sums in her AEIC at [46]?

1.

2015

—

—

$46,897

Yes

2.

7 March 2016

Cash

Loan for Defendant to repay loans sharks[note: 8]

$10,000

No

3.

25 March 2016

Cash

Defendant did not give Claimant any good reason[note: 9]

$4,000

No

4.

2 April 2016

Cheque

For Defendant to repay her employer at Bavaria, Keran[note: 10]

$41,000

Yes

5.

19 April 2016

Cheque

For Defendant to repair her house in Vietnam which was burned down by fire[note: 11]

$68,000

Yes

6.

April – July 2016

Cash

For Defendant to repay loan sharks[note: 12]

$3,000

No

7.

25 July 2016

Cheque

For Defendant to repay loan sharks[note: 13]

$16,000

Yes

8.

End of 2016

Cash

For Defendant to repay loan shark from Ang Mo Kio (“AMK”) Coffee Shop Blk 711[note: 14]

$5,000

No

9.

End of 2016

Cash

For the medical bills of the Defendant’s father in Vietnam[note: 15]

$3,000

No

10.

End of 2016

Cash

For Defendant to repay debt owed in relation to AMK Coffee Shop Blk 711[note: 16]

$5,000

No

11.

End of 2016

Cash

For Defendant to repay another debt to loan sharks[note: 17]

$6,000

No

12.

End of 2016

Cash

For Defendant to repay another[note: 18] debt to M1 for her bills

$5,000

No

13.

January 2017

Cash

For the Defendant’s brother’s alleged legal representation in Vietnam[note: 19]

$5,000

No

14.

13 January 2017

Cheque

For the Defendant’s brother’s legal representation as he is involved in a murder case in Vietnam[note: 20]

$21,000

Yes

15.

1 March 2017

Cash

For Defendant’s sister-in-law and her child who had come to Singapore for holiday but had insufficient monies[note: 21]

$3,000

No. However there is evidence from the Defendant admitting in the audio recording of 17 April 2017[note: 22] that she had taken $3,000 in February or March 2017.

16.

8 July 2017

Cash

For the Defendant to repay loan sharks who were hounding her[note: 23]

$6,000

No

17.

15 August 2017

—

For the Defendant to have spare cash or savings in her own bank account[note: 24]

$3,000

Yes

18.

1 September 2017

—

For the Defendant to return home to Vietnam for surgery/treatment of her vaginal infection[note: 25]

$3,000

Yes

19.

14 March 2018

Cash

For the Defendant to rent a coffee shop stall[note: 26]

$5,000

Yes

20.

18 March 2018

Cash

For the Defendant to purchase ingredients for her coffee shop stall[note: 27]

$1,500

No

21.

17 April 2018

Cash

For rental of the Defendant’s coffee shop stall[note: 28]

$5,000

Yes

22.

18 April 2018

Cash

For rental of the Defendant’s coffee shop stall[note: 29]

$1,000

No

23.

11 July 2018

—

For rental of the Defendant’s coffee shop stall[note: 30]

$5,000

No. However, Defendant admitted in her POHA affidavit[note: 31] on 4 December 2018 to receiving the sum of $6,000 in July 2018 in return for having sex with him at a hotel 10 times.

24.

20 July 2018

Cash

For the Defendant’s son’s daily expenses[note: 32]

$1,000

Yes

25.

7 September 2018

—

—

$1,000

No

26.

End 2018

—

—

$1,000

No

Total

$274,397

$217,897



6       On the stand, the Defendant conceded that she did not record the amounts of money she received from the Claimant[note: 33]. There were also sums which she denied receiving but for which there was evidence indicating otherwise (see S/N 15 and 23 above). Given that the Claimant was able to set out in detail the amount transferred, the purpose given by the Defendant for the transfer and in most instances, the dates of the transfer, I accepted his evidence on the quantum of transfers.

Issue 2: Were the transfers in the nature of loans or gifts

Legal Principles

7       A loan is a simple contract where the lender pays or agrees to pay a sum of money in consideration of a promise by the borrower to repay the money upon demand or at a fixed date: City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR(R) 733 at [23] citing Clifford L Pannam, The Law of Money Lenders in Australia and New Zealand (The Law Book Company Limited, 1965) at page 6. A valid gift inter vivos is made where there is an intention to gift and delivery of the precise subject matter of the gift. The court assesses the subjective intention of the donor at the time of the transfer: Toh Eng Tiah v Jiang Angelina & another appeal [2021] 1 SLR 1176 (“Toh Eng Tiah”) at [52]. Once given, a donor cannot resile from his position and subsequently seek to convert a gift into a loan. This is because once there has been a voluntary transfer of a gift, and a full intention that the gift shall not return, the donor parts fully with the property: Toh Eng Tiah v Jiang Angelina [2020] SGHC 65 at [34] citing Chung Khin Chun K (by her deputy Mok Chiu Ling Hedy) v Yang Yin and others [2015] 5 SLR 467 at [41]. However, parties may well enter into a contract where the donee undertakes to repay a sum of money initially given as a gift: Toh Eng Tiah at [55].

8       As set out earlier, the Claimant does not have contemporaneous documentation at the time the monies were transferred to the Defendant that they were in the nature of loans. However, he relies on the following:

(a)     three IOUs signed by the Defendant[note: 34];

WhatsApp text messages sent by the Defendant using the words “borrow” and “return”;

(b)     audio recordings between the two of them;

(c)     an insurance policy purchased by the Defendant; and

(d)     the Defendant’s sporadic repayments to him.

(a)   IOUs

9       The First IOU is dated 13 January 2017 where the Defendant promised to return the Claimant the sum of S$32,000 in January 2024. In the Second IOU, the Defendant confirmed that she had taken an interest-free loan of $100,000 from the Claimant and would repay him the amount of $500 between the 15th and 20th day of each month starting June 2017 until the stated amount is discharged. She also promised not to change the beneficiaries nominated under the Prudential Assurance Policy No. 64681589. In the third IOU, the Defendant stated that she has taken a loan of $24,500 from the Claimant on 16 April 2018 and would return the money on 15 April 2022 without interest.

Were the IOUs procured by duress?

A.   The Defendant’s version

10     The Defendant relied on the fact of duress to vitiate the IOUs that the Claimant relied on to prove her acknowledgement of the purported loans.

11     The Defendant gave evidence that there was an incident of violence in 2016 where the Claimant had dragged her out of a customer’s car and pushed her into a taxi. She was then forced to make a voice recording on his phone that she had cheated his money and that she was to go to his house the next day to sign an IOU stating that she would pay him back $500 a month. The Defendant went to the Claimant’s house reluctantly. Although she was reluctant to sign the IOU, the Claimant grabbed her hair and held a knife to her neck and threatened her. She signed the document and made a few payments but when they resumed their relationship, the Defendant tore up the IOU and did not ask for further payments[note: 35].

12     The Defendant claimed that their “on-off” relationship continued for several years. Every time she wanted to break up, the Claimant would force her to sign another IOU and then tear it up when they got back together. The IOUs were therefore used by the Claimant as a way of keeping the Defendant in a relationship with him[note: 36].

13     In August 2016, when the Defendant had already broken up with the Claimant, the Claimant threatened that if she did not return the money, he would kill her children and her whole family[note: 37]. While the Defendant made a police report, I note from the police report that this threat was not captured. What was captured was the fact that the Claimant has been harassing her at home and at her work place asking for the return of his money if she wanted to end the relationship or to repay in the form of sexual services every week. There was however allusion to the fact that he had assaulted her in the past but she did not report him as he had helped her a lot financially[note: 38].

14     The Defendant also alleged that the Claimant had assaulted her near her former matrimonial home a few days after she made the police report[note: 39]. In addition, the Claimant had threatened her in 2017 that if she made him unhappy, he would push her off a tall building and claim the insurance money. The Claimant later made her sign an IOU regarding the insurance monies[note: 40].

B.   The Claimant’s Version

15     The Claimant countered that the Defendant’s accusations were baseless and should be given little weight. If the Claimant had indeed forced the Defendant to sign the IOUs under duress, it would be illogical to continue transferring money to her shortly afterward such as on 17 April 2018 and in July 2018.

16     Counsel for the Claimant sought to argue that from the audio recordings, it was obvious that the Defendant was not nervous at all when speaking to the Claimant. Her choice of words, such as “I know, I know lah. Don’t need to remind lah”[note: 41] and her quip that taking the Claimant’s two hundred thousand dollars was not much[note: 42] revealed a brazen and abrasive demeanour rather than one of fear or submission. Her tone in the various recordings does not indicate any fear or apprehension. On the contrary, it is clear that she was not intimidated by the Claimant which undermines her allegations of duress or threats. The Defendant’s offer to write the Claimant IOUs to borrow more money also contradicts her assertion that the Claimant forced her to sign the IOUs as a means of controlling her and keeping her in the relationship.

C.   Analysis

17     In Tam Tak Chuen v Khairul bin Abdul Rahman [2009] 2 SLR(R) 240 at [22] & [62], the High Court set out two elements in the wrong of duress: (a) pressure amounting to compulsion of the will of the victim; and (b) the illegitimacy of the pressure exerted. Once illegitimate pressure had been proved, the party complained against had to prove that the pressure had contributed nothing to the complainant’s decision to execute the decision and his consent had not been vitiated. Citing the Privy Council in Pao On v Lau You Long [1980] AC 614, the High Court set out the following factors that have to be considered to decide whether consent has been vitiated: (a) whether the person alleged to have been coerced did or did not protest; (b) whether, at the time of the alleged coercion, the person did or did not have an alternative course open to him; (c) whether he was independently advised; and (d) whether after entering into the contract he took steps to avoid it.

18     An audio recording which the Claimant put at February 2016 reveals that the Defendant’s signing of the IOUs appeared to be at the Claimant’s behest and that the Claimant dictated the terms of the IOU:

Female 1:

You tell me to return it today. Whatever you want me to sign, I will sign. So you can scold me or tell me off or anything. I have let you down this time round. Uh whatever you want me to sign, I will sign it. My thing with you, I will do this, that’s all.

Male 1:

You are right doing it this way[note: 43].



19     Another audio recording dated 2 April 2016 indicated that the terms of the repayment captured in the IOUs were not definitive and varied according to whether the parties were in a relationship or not:

Female 1:

Didn’t I wrote it le lor? I wrote on a white paper and give it to you le lor.

Male 1:

Write le, wait two years?

Female 1:

Uh, didn’t you told me to write a few years that day?

Male 1:

What happened that day, we were still together, ok? I felt that it didn’t matter la hor.[note: 44]



20     In the audio recording which the Claimant put at 5 April 2017[note: 45], the Defendant is recorded as dictating the terms of what appears to be the Second IOU to the Claimant but the Defendant alluded to a facade of the Claimant scolding her:

Female 1:

No no no no no no no no. You have to write, you must write one month five hundred thousand, uh five hundred dollars. You agree for me to pay every month five hundred dollars, five hundred dollars. You agree to let me pay five hundred dollars every month.

Male 1:

Ah,

Female 1:

You must. Cannot, you cannot like that, you cannot be this way don’t write inside de. Borrow money, you want me … You cannot ah. Then you, then you write like that leh. You won’t sue me. You want to pretend to scold me mah. Correct?

Male 1:

Then I write amount (inaudible)

Female 1:

Cannot, you … You write, you write one hundred thousand dollars every month. I return you 500 dollars

Male 1:

Ok ok.

Female 1:

15th till 20th.

Male 1:

No need.

Female 1:

I have to return the money.



21     However, it was clear that the terms of the IOUs were subject to the vagaries of the Claimant as the Claimant appeared thereafter to ask the Defendant to change the First IOU to four years:

Male 1:

Never mind hor, the thirty-five thousand dollars, the, the, the, the old thirty-two thousand dollars, when will you return?

Female 1:

When it’s time, I will return.

Male 1:

Huh?

Female 1:

When it’s time, I will return.

Male 1:

Huh, that one I need to change, I want you to change to four years hor because that time I text you to change to four years.



22     The IOUs were signed on 13 January 2017, sometime before June 2017 and on 16 April 2018. By then, the parties were already in an “on-off” relationship. The Defendant’s version that the relationship was a physically abusive one was consistent with the police report she made on 23 August 2016. Based on the police report, the Defendant had tried to break up with the Claimant on numerous occasions to no avail. After she broke up with him, the Claimant had harassed her by calling her, turning up at her work place and home, embarrassing her at work and asking for the return of what he had initially given her. I therefore accept that there was illegitimate pressure in the form of violence and harassment.

23     As to whether the pressure amounted to compulsion of the will of the victim, I accepted that the Defendant would not have been in a constant state of fear throughout what the Defendant described as an “on-off relationship” with the Claimant between 2016 and 2018. It is also not clear whether a particular audio recording corresponds with the “on” or “off” phase of the relationship. During the “on” phase of the relationship, it would not be unusual for the Defendant to coquettishly jest and banter with the Claimant as regards the money that he is giving her. However, in the face of illegitimate pressure in the form of violence and harassment if she were to break up with the Claimant and in view of her financial dependence on the Claimant and the threat of having to repay what had been earlier given to her, the Defendant was essentially being emotionally blackmailed into staying in the relationship. The Defendant would probably have come to the realization that signing the IOUs as required by the Claimant was what he wanted and her only practicable way to manage the Claimant’s behaviour during the “off” phase. The Defendant’s evidence that the Claimant would tear up the IOUs when they resumed their relationship and that they would not be effective as long as they were together[note: 46] caused the Defendant to believe that the Claimant would not enforce the IOUs and was simply using them to keep her in a relationship with him. This would also explain why the Defendant even offered to write IOUs for the Claimant[note: 47]. Bearing in mind that it was the Claimant who had to prove that the illegitimate pressure had contributed nothing to the Defendant’s decision to sign the IOUs, I do not think this burden had been discharged.

Weight of the IOUs

24     Even if the IOUs were not vitiated on the ground of duress, in the context of how they came to be signed, I found myself unable to place much weight on them to shed light on whether the transfers made were loans.

25     The Claimant conceded that the IOUs before the Court were made at least two to three years after the monies were transferred to the Defendant[note: 48] and while the Claimant was reluctant to admit this on the stand, only after the Defendant had first broken up with him in 2016[note: 49]. The numbers in the IOUs also do not tally with what was pleaded to be owing at the relevant time.

26     The first IOU relied upon by the Claimant is dated 13 January 2017 where the Defendant promised to return the Claimant the sum of $32,000 in January 2024. It is unclear how the sum of $32,000 has been derived, given that by the Claimant’s account, he would have transferred the sum of $212,897 by the end of 2016. Even with the return of $3,500 as he claimed, a sum of $209,397 is owing.

27     The second IOU that the Claimant relied on was not dated but must have been recorded sometime before June 2017. In the second IOU, the Defendant confirmed that she had taken an interest-free loan of $100,000 from the Claimant and would repay him the amount of $500 starting June 2017 until the amount is discharged. Again, the amount stated to be owing is inconsistent with what the Claimant pleaded to be owing as at June 2017. At the repayment rate of $500 per month, it would take a total of 200 months or 16 years to discharge the loan.

28     The third IOU is not dated but the Claimant stated that the Defendant signed it on 16 April 2018. Similarly, it is unclear how the sum of $24,500 is derived.

29     The Claimant did not offer any evidence as to how the sums stated in the IOUs relate to the sums which he now claims, whether individually or collectively[note: 50]. The Claimant also claimed[note: 51] that in respect of the sum of $46,897.00 transferred to the Defendant in 2015, the sum had been recorded by way of an IOU for the Defendant to return him the sum of $500 per month. However, the IOU was subsequently returned to the Defendant. The Claimant was unable to satisfactorily explain why he did so[note: 52], when it was undisputed that the Defendant did not return the sum to him.

30     The fact that the IOUs were made long after the monies were disbursed and did not relate to the sums alleged to be owing as at the dates of the IOUs casts serious doubt on their probative value as loan records. The Claimant was unable to satisfactorily explain why the IOUs only evidence a portion of what he claims were loans to the Defendant. He alluded to the Defendant’s objections that it was not necessary to record the entirety of the sums and that he should trust her given their relationship[note: 53]. However, this did not appear to be borne out by the audio recordings on 17 April 2017[note: 54] where it was in fact the Claimant who said that there was no need to write any more “black and white”.

31     According to the Defendant, the IOUs were signed during her “on-off” relationship with the Claimant when she wanted to break up with the Claimant. The Claimant would bring up the money he had previously given her and claim that they were loans. The Defendant’s evidence was consistent with the contemporaneous police report which she made on 23 August 2016. There the Defendant stated that the Claimant had given her money while they were in a relationship but started harassing her at her work place and home when she tried to end the relationship. The Claimant asked for a return of his money of $100,000 or she had to have sex with him every week. The Defendant also stated that when the Claimant helped her financially, he did not say the money was a loan and that he gave her the money willingly.

32     Having heard both the Claimant and the Defendant give evidence in court, I did not find the Claimant to be a forthcoming witness. Even when faced with incontrovertible evidence that the IOUs appeared to be signed at least two to three years after the monies were transferred to the Defendant, he was slow to concede the point[note: 55]. I find the Defendant’s version of events to be more credible, being consistent with her contemporaneous police report and filling the gaps as to why there was no IOU relating to the sum of $46,897.00, why the IOUs were made long after the transfers, and why they do not record what the Claimant alleged were owing at the date of the IOUs.

33     Correspondingly, the IOUs before me, which appear to be an afterthought rather than a record of loans owing at a certain point in time, did not help the Claimant to advance his case that the transfers were in the nature of loans, as opposed to gifts to someone whom he was romantically and sexually interested in. Rather than an acknowledgement of what was actually owing, they appear to be documents which were signed by the Defendant to appease the Claimant and keep his harassment at bay.

(b)   WhatsApp Text Messages

34     During cross-examination, the Defendant was directed to a series of WhatsApp text messages which were exhibited in the Claimant’s affidavit[note: 56] and in the Agreed Bundle where the Defendant had used the words “borrow” and “return”. The Defendant did not dispute sending the following messages to the Claimant:

S/N

Date of Message

Substance of Message

1.

22 February

She would transfer money for the month at the end of the month and she was trying hard to find another amount for now[note: 57]

2.

22 April

She would start returning him his money every month as previously agreed starting from 20 May. If he were to come to her stall to give her stress or problems, she will close her stall and it would be harder for him to get his money back[note: 58].

3.

20 May

She would transfer the money at the end of the month[note: 59].

4.

31 May

She would only pay him next month as she does not have enough money and needs to save some money to go back to Vietnam[note: 60].

5.

29 June

In response to a message from the Claimant asking for a transfer of $1,200 the next day, the Defendant replied that she did not have the money and said that she would pay him when she has the money[note: 61].

6.

—

She does not have any money and to give her time and that she would start paying him after that year[note: 62].

7.

—

The Defendant also asked for a loan of $6,000 so that she need not borrow from the loan sharks[note: 63].

It would appear that this request was rejected by the Claimant asking her to ask her friends to help instead[note: 64].



35     The Claimant argued that in the text messages, the Defendant did not deny that the monies she received were loans but was proactive in offering repayment plans to the Claimant.

36     Although neither party put a year to the messages that the Defendant sent during cross-examination[note: 65], counsel for the Claimant state in their written submissions that the Defendant’s messages set out at paragraph 34 at S/N 1, 2, 6 and 7 were sent in 2018, and those at S/N 3 to 5 were sent in 2017. Even so, it was difficult to correlate the messages to the loans which the Claimant is claiming were disbursed. While these messages do indicate that the Defendant had said she would pay the Claimant, there is no indication that this was pursuant to loans which the Defendant had taken from the Claimant and which alleged loan the repayments relate to. While they capture the Defendant’s intent to pay the Claimant, save for S/N7 which is dealt with in greater detail below, they did not capture the Defendant’s requests for the loans in the first instance or the parties’ intent at the time of the transfers. For the message at S/N 7, while the Defendant did ask the Claimant for a loan of $6,000 so that she need not borrow from the loan sharks, it would appear that this request was rejected by the Claimant. The Claimant put this message in 2018[note: 66] which meant that this was unrelated to the cash transfer of $6,000 to the Defendant on 8 July 2017 which was for the purpose of repaying a loan shark debt. While one may argue that the choice of words used indicate that the transfers were intended as loans, it was equally consistent with the Defendant’s account that she had sought to return the monies because following a breakdown of their relationship, the Claimant had sought to claw back from her what were initially intended as gifts.

37     The Claimant also pointed to various WhatsApp messages which he sent to the Defendant to support his case:

S/N

Date

Substance of Message

1.

6 March

“In 10 days you got to pay 3k. Or else you have to write black and white the total amount you owe me, this is what you ever promise.”[note: 67]

2.

10 July

“2015 Total $46,897”

“2016 Total $166,000”[note: 68]

3.

31 October

“Ah Long 1 day $50 interest. You ask for $1,000 on 11/09/2018. Today is last day of the month, you should return $1,000. You promise. Transfer to my account tomorrow”[note: 69]

4.

4 November

“If I don’t received your call before 11.30 pm I’ll terminate the insurance. The money you owe $274,397 how you settle”[note: 70]

5.

7 November

“Asked what, take what. Change 200 thousand worse it means what? Court coming soon when? O$P$. Call police no problem, don’t make up story and tell lies.”



38     As set out earlier, while these messages do indicate the Claimant chasing the Defendant for payment and stating the amounts owing, the Claimant did not put a year to when they were sent and there is no clarity on whether this was pursuant to loans which the Defendant had taken from the Claimant. In particular, while the message in S/N 3 in paragraph 37 refers to the Defendant asking for $1,000 on 11 September 2018, the Claimant’s pleadings and evidence do not reflect a loan of $1,000 on 11 September 2018. It is also pertinent to note that on 19 October 2018, the Defendant had made a police report that the Claimant had gone to her workplace to make a scene and to demand that she go to the hotel with him. In the report, the Defendant alluded to the fact that the Claimant had recently started to harass her for sex and that if she did not comply, she would have to return him the money which he gave her in 2016[note: 71]. Correspondingly, the text messages were equally consistent with the Defendant’s account that the monies were given as gifts in the context of a romantic and sexual relationship[note: 72] and the Claimant only asked for the return of the monies following a breakdown of that relationship.

(c)   Audio Recordings

39     In the Agreed Bundle, there were several audio recordings dated as follows which the Claimant is relying on:

(a)       February 2016

(b)       2 April 2016

(c)       21 May 2016

40     In the audio recording dated February 2016[note: 73], the Defendant told the Claimant that she will sign whatever he wants her to sign and that she would pay him back $1,000 per month. He can buy insurance as planned and he would be able to get his money back.

41     In the audio recording dated 2 April 2016[note: 74], the Claimant asked the Defendant when she was going to return the whole sum to him. She claimed that she had already given him a “black and white” with “two years” upon his instructions. However, the Claimant claimed that was while they were still together and he felt that it did not matter. Given the large sum that she now owes him, he asked for the return of the money and when she would return the money. The Defendant then asked for two years to return the money.

42     In the audio recording dated 21 May 2016[note: 75], the Defendant told the Claimant that he treated her very well and had given her so much. In another excerpt, the Defendant told the Claimant that he would only be able to get his money back via insurance and the Claimant agreed, telling the Defendant that he had already purchased close to $300,000.

43     The Claimant also relied on various audio recordings in relation to conversations which he said took place on 5 April 2017, 17 April 2017 and 31 August 2017.

44     In the audio recording which the Claimant said happened on 5 April 2017[note: 76], the Defendant asked the Claimant to write that he agreed that she would pay him $500 every month and he would not sue her. She then talked about returning the money between 15th and 20th and having to return the money. The Claimant then asked her when she would be returning the $32,000. The Defendant replied that she would return when it is time to which the Claimant replied that he wanted to change the date to four years.

45     In the second audio recording which the Claimant puts at 17 April 2017[note: 77], the Defendant asked to borrow five thousand dollars which she would return after the new year. The Claimant reminded the Defendant that she had already taken his $3,000 in February or March. The Defendant then promised to write a “black and white” for him if she did not return him the money. The Claimant then replied that there was no need for further “black and white” and that two pieces were sufficient. When the Claimant complained that she constantly asked him for help to borrow money but never returned the money, the Defendant asked him to help her for one last time and that she would write “one more one hundred thousand give you lah”.

46     In the third audio recording which the Claimant puts at 31 August 2017[note: 78], the Defendant admitted to taking two hundred thousand of the Claimant’s money but jested that it was not a lot. She then said that “No need to return, still want to take lah. Take your money must return, who do you think you are hor.”

Analysis

47     As the Defendant was quite clear in that she did not keep any messages or audio recordings and in fact alluded to the fact that the audio recordings did not capture the entire context of their conversations, I proceeded on the basis that the messages and audio recordings were the ones most favourable to the Claimant.

48     The audio recordings in February 2016 indicate that the Defendant was willing to sign whatever the Claimant wished her to sign but there was no evidence of any transfers in February 2016 and it was unclear whether the return of the monies was in respect of loans as alleged by the Claimant or gifts as alleged by the Defendant.

49     In relation to the audio recording on 2 April 2016, I note that this was on the same day that the Claimant stated that he had disbursed a cheque of $41,000 to the Defendant. However, there is no reference to this sum and their conversation appears to relate to an IOU which the Defendant had written some time ago, which IOU does not appear to be before the Court, given that none of the IOUs before the court referred to two years being the repayment period:

Male 1:

Ah, if ok, you tell me la. So, when are you going to return it to me all in one go?

Female 1:

Didn’t I wrote it le lor? I wrote on a white paper and give it to you le lor.

Male 1:

Write le, wait two years?

Female 1:

Uh, didn’t you told me to write a few years that day?

Male 1:

What happened that day, we were still together ok? I felt that it didn’t matter la hor.



50     For the audio recordings in 2017, the audio recording on 5 April 2017, in particular, provides context to how the Second IOU came about and an indication that the Claimant wanted to bring forward the repayment date of the First IOU. In fact, there is a line in the recording from the Defendant that with the IOU, the Claimant would not sue her. For the audio recording on 17 April 2017, the Defendant asked to borrow five thousand dollars but no transfers were in fact made in the second quarter of 2017.

51     In fact, the Defendant’s use of the words “treat me so well” and “given me so much” in the audio recording on 21 May 2016[note: 79] and the parties’ use of the word “take” when referring to the monies transferred and the Defendant’s joke as to the need to return the money in the audio recording of 31 August 2017[note: 80] on what must have been the better days of their relationship suggest that the transfers were not in the nature of loans.

52     At the highest, the messages and audio recordings indicate that the Defendant intended to repay the monies she took from the Claimant but they do not shed much light on the intent of the parties at the time of transfer. The sums transferred to the Defendant were not small and in certain instances, the Claimant had to terminate his insurance policies to transfer the sums to her. By his own admission, the Claimant was aware that the Defendant was in debt[note: 81] and had no means of returning the monies to him. According to the Defendant, the Claimant only started to claim that the money he had given her were loans only after their relationship started to strain in 2016 and that the Claimant would not ask for the return of the monies as long as they were in a relationship. This was consistent with the audio recordings where the Claimant said it did not matter when she returned the money when they were still together. The Defendant also claimed that over the course of their on-off relationship[note: 82], she had signed IOUs under pressure which were then torn up when they resumed their relationship. The audio recordings indicating that the Defendant was willing to sign whatever the Claimant wanted her to sign, the references to IOUs which were not before the Court and the fact that the IOUs before the Court were made long after the monies were disbursed and did not relate to the sums alleged to be owing as at the dates of the IOUs lend credence to the Defendant’s account. The Defendant’s references to return the Claimant’s money did not correlate to any particular sum disbursed by the Claimant and were not made in consideration of the transfer of any sum. Correspondingly, they do not appear to be premised on a legal obligation to repay and are not determinative that the transfers were loans.

(d)   Insurance Policy

53     The Claimant argued that the insurance policy in the Defendant’s name further supports the claim that the monies transferred to her by the Claimant were loans that were expected to be repaid and it was the Defendant who voluntarily offered to purchase the insurance policy as a way to repay the monies, being fully aware that the funds transferred to her were always intended as loans.

54     The Defendant had purchased an insurance policy dated 25 March 2017 where the Claimant’s niece and the Defendant’s son would each get $250,000 in the event of the Defendant’s death[note: 83]. The Claimant was one of two witnesses when the Defendant signed off on the nominees on 21 March 2017. While it is disputed who had suggested the purchase of the policy, the audio recordings in February 2016 recorded the Defendant as saying that the Claimant could buy the insurance “as planned” and left it to him whose name he would put[note: 84] so that he could get his money back in the event of her death. In the recording on 21 May 2016, the Defendant was also recorded as stating that if the Claimant really wanted to buy insurance, she could find[note: 85]. In response, the Claimant stated that he had already bought close to $300,000 of insurance[note: 86]. Given that the source of some of the larger sums transferred to the Defendant had come from the Claimant’s insurance policies, I find that the buying of an insurance policy was something which the Claimant was more familiar with. The fact that the Claimant talked about terminating the insurance policy in his text message on 4 Nov[note: 87] also indicated that it was the Claimant who was making the decisions as regards the insurance policy. The objective evidence therefore corroborated the Defendant’s evidence that the insurance policy was the Claimant’s idea so that he could get back the money he had given her in the event of her death. Correspondingly, I am of the view that the insurance policy did not advance the Claimant’s case that the monies transferred were in the nature of loans.

(e)   Repayments by the Defendant

55     According to the Claimant, the Defendant repaid $1,000 to him at the end of 2015 and $2,500 at the end of 2016[note: 88]. As these repayments in 2015 and 2016 were during the early stages of their alleged relationship when both parties were still on good terms, the Claimant argued that these were indicative that the transfers were in the nature of loans. The Defendant did not deny repaying the Claimant about $6,000 but explained that the repayments were made in the context where she had wanted to end the relationship and the Claimant started referring to the gifts as loans[note: 89].

56     According to the Claimant, he started to record their voice calls as he started suspecting that the Defendant was telling lies[note: 90]. This must have started as early as, if not earlier than, February 2016, given that this was the earliest audio recording tendered[note: 91]. This indicates that their relationship had already started to strain by then. Viewed in this context, the repayments by the Defendant do not have presumptive value in determining whether the monies transferred to her were in the nature of loans.

Conclusion

57     A claimant in a civil claim bears the legal burden of proving the existence of any relevant fact necessary to make out its claim on a balance of probabilities. In the present case, the legal burden of proof is on the Claimant to prove that the monies transferred to the Claimant were in the nature of loans. The burden of proof was not on the Defendant to prove that the monies transferred were gifts.

58     In this regard, I find that the Claimant had failed to discharge his burden of proof that the sums disbursed to the Defendant were in the nature of loans. First of all, there were no documents, messages or audio recordings contemporaneous with each of the 26 transfers indicating that they were loans. While one would not expect formal loan documentation, the fact remained that while the Claimant was able to produce various text messages and selective audio recordings about the Defendant agreeing to repay monies to him, the Claimant failed to produce any contemporaneous documentary or audio evidence in relation to any of the sums which he claimed were loans and which were probative of the parties’ intent at the time of the transfers. This was despite the fact that he had already started recording their voice calls as early as February 2016 which, barring the transfer of $46,897 in 2015, preceded the transfer of all the amounts which he now claims are loans. Even for the first transfer of $46,897 in 2015, which the Claimant claimed he cobbled together from his insurance payout, savings and sale of his car, there was no contemporaneous evidence before the Court that this was a loan given in consideration of a promise to repay. The lack of such evidence was glaring and crucial because in determining whether a transfer was a loan, the Claimant needed to prove that the various transfers had been made in consideration of a promise by the Defendant to repay the money.

59     Based on the evidence given by the Claimant, the purpose for which the monies were to be used relate to solving the Defendant’s financial problems, helping her family in Vietnam or Singapore, paying her medical bills, helping with her livelihood or even for her to have some spare cash in her own bank account. At the time the monies were transferred to the Defendant, the Claimant was aware that the Defendant was in debt and incapable of repaying the monies which have been transferred to her. Yet the Claimant continued to transfer significant sums of money to the Defendant to help her with her personal problems with no contemporaneous documentation or evidence as to the nature of such transfers and how they would be repaid, if indeed they were loans. This was the case even in the later part of their relationship, when their relationship had become visibly strained.

60     The Defendant also stated that the $5,000 and $1,000 that the Claimant gave her to help her pay for her stall rental on 11 and 20 July 2018 respectively was in exchange for her having sex with him 10 times[note: 92]. They subsequently met for sex on 13 July, 4 August and 7 September 2018. This was corroborated by the audio recordings dated 27 September 2018[note: 93] and the Claimant’s text message on 29 September[note: 94]. The Defendant had also taken a consistent stand in both her police reports on 23 August 2016 and 19 October 2018 that the monies transferred to her were gifts and which did not need to be returned if she continued to have sex with him. The IOUs were made long after the transfers and did not record the amounts alleged to be owing. References in the text messages and audio recordings about the Defendant returning the monies to the Claimant did not relate to any particular sum alleged to be disbursed by the Claimant and were not made in consideration of any specific transfers. They appeared to be made in a context where the Defendant was trying to break up with the Claimant and where the Claimant was trying to claw back from the Defendant what had been initially given. Given the totality of the evidence, the inference to be drawn is that the transfers were gifts by the Claimant to the Defendant in the context of a romantic and sexual relationship to solve her problems, win over her heart and to maintain and at a later stage, salvage their relationship and there was no intention to create an obligation to repay at the time of the transfer.

61     In the circumstances, I find that the Claimant has failed to show that the monies transferred to the Defendant were more likely than not to be loans and I dismiss the Claimant’s claim with costs.

62     The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

[note: 1]Statement of Claim at [4] and [7]

[note: 2]Lim Sheng Long’s (LSL) Affidavit of Evidence in Chief (AEIC) at [4] – [9]

[note: 3]LSL AEIC at [37]

[note: 4]Bui Thi Thanh Huyen’s (BTTH) AEIC at [55]

[note: 5]BTTH AEIC at [10], [44] & [55]

[note: 6]BTTH AEIC at [11]

[note: 7]BTTH AEIC at [13]

[note: 8]LSL AEIC at [13]

[note: 9]LSL AEIC at [14]

[note: 10]LSL AEIC at [16] & [17]

[note: 11]LSL AEIC at [19]

[note: 12]LSL AEIC at [21]

[note: 13]LSL AEIC at [22]

[note: 14]LSL AEIC at [23a]

[note: 15]LSL AEIC at [23b]

[note: 16]LSL AEIC at [23c]

[note: 17]LSL AEIC at [23d]

[note: 18]LSL AEIC at [23e]

[note: 19]LSL AEIC at [26]

[note: 20]LSL AEIC at [27]

[note: 21]LSL AEIC at [28]

[note: 22]LSL AEIC at Tab 16, BA118, lines 5-6

[note: 23]LSL AEIC at [29]

[note: 24]LSL AEIC at [30]

[note: 25]LSL AEIC at [31]

[note: 26]LSL AEIC at [33a]

[note: 27]LSL AEIC at [33b]

[note: 28]LSL AEIC at [33c]

[note: 29]LSL AEIC at [33d]

[note: 30]LSL AEIC at [33e]

[note: 31]LSL AEIC at Tab 9, BA71 paragraph (v)

[note: 32]LSL AEIC at [34]

[note: 33]NE, 11 July 2024, 41/7-9

[note: 34]LSL AEIC at Tab 2

[note: 35]BTH AEIC at [12] – [13]

[note: 36]BTH AEIC at [14]

[note: 37]BTH AEIC at [17]

[note: 38]BTH AEIC at Tab 2, BA139-140

[note: 39]BTH AEIC at [19]

[note: 40]BTH AEIC at [20]-[21]

[note: 41]Audio recording of 17 April 2017 at LSL AEIC at Tab 16, BA118 line 6

[note: 42]Audio recording of 31 August 2017 at LSL AEIC at Tab 15, BA116 line 5

[note: 43]Agreed Bundle of Documents (“ABD”) 24 at lines 1-5

[note: 44]ABD27 at lines 3-7

[note: 45]LSL AEIC at Tab 14, BA114

[note: 46]NE, 11 July 2024, 49/3-6

[note: 47]LSL AEIC at Tab 16, BA118 line 7-8, 17-19

[note: 48]NE, 11 July 2024, 28/3-7

[note: 49]NE, 11 July 2024, 28/17-30

[note: 50]NE, 11 July 2024, 28/31 – 31/11

[note: 51]LSL AEIC at [12]

[note: 52]NE, 11 July 2024, 9/3-19, 13/12-23, 28/22-23

[note: 53]LSL AEIC at [42]

[note: 54]LSL AEIC Tab 16 at BA118 line 9

[note: 55]NE, 11 July 2024, 25/22 – 28/7

[note: 56]LSL AEIC at Tab 1

[note: 57]LSL AEIC at Tab 1, BA17, ABD124, NE, 11 July 2024, 43/1-7

[note: 58]LSL AEIC at BA19. ABD126, NE, 11 July 2024, 43/8-21

[note: 59]LSL AEIC at BA24, ABD131, NE, 11 July 2024, 43/22-25

[note: 60]LSL AEIC at BA24, ABD131, NE, 11 July 2024, 43/27-30

[note: 61]LSL AEIC at BA25, ABD132, NE, 11 July 2024, 44/1-9

[note: 62]LSL AEIC at BA28, ABD135, NE, 11 July 2024, 44/20 - 45/1

[note: 63]LSL AEIC at BA29, ABD136

[note: 64]LSL AEIC at BA29, ABD136

[note: 65]NE, 11 July 2024, 42/32-45/29

[note: 66]Paragraph 11(g) of the Claimant’s written submissions

[note: 67]ABD124

[note: 68]ABD120

[note: 69]ABD145

[note: 70]ABD146

[note: 71]BTTH AEIC at Tab 5, BA147-148

[note: 72]NE, 11 July 2024, 55/32-56/4

[note: 73]ABD24-25.

[note: 74]ABD27-28

[note: 75]ABD32-33

[note: 76]LSL AEIC Tab 14 at BA114, ABD149

[note: 77]LSL AEIC Tab 16 at BA118, ABD151

[note: 78]LSL AEIC Tab 15 at BA116, ABD150

[note: 79]ABD32 lines 8 and 12

[note: 80]LSL AEIC at Tab 15, BA116 line 5, 7 and 8

[note: 81]LSL AEIC paragraph 7, NE, 11 July 2024, 5/13-14

[note: 82]BTTH AEIC at [14]

[note: 83]LSL AEIC Tab 13 at BA109-112, ABD 48-51

[note: 84]ABD24 line 17

[note: 85]ABD33 line 2

[note: 86]ABD33 line 4-5

[note: 87]ABD146

[note: 88]LSL AEIC at [37]

[note: 89]BTTH at [55] - [57]

[note: 90]LSL AEIC at [50]

[note: 91]ABD24-25

[note: 92]BTTH AEIC at [24]

[note: 93]ABD56

[note: 94]BTTH AEIC at Tab 4 at BA145

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Chong Kuan Siong v Goh Boon Kiat, Lennard
[2024] SGMC 70

Case Number:Originating Claim No 509 of 2024
Decision Date:02 October 2024
Tribunal/Court:Magistrate's Court
Coram: Chiah Kok Khun
Counsel Name(s): Lin Ruizi, Yong Ying Jie (Denise) and Nikhita Mulani (Shook Lin & Bok LLP) the claimant; Michael Ng Man Hon and Yong Hong Kit Clement (Yang Fengji) (Beyond Legal LLC) for the defendant.
Parties: Chong Kuan Siong — Goh Boon Kiat, Lennard

Contract – Illegality and public policy – Common law

Contract – Loan agreement – Whether loan agreement unenforceable for illegality

2 October 2024

Judgment reserved.

District Judge Chiah Kok Khun:

Introduction

1       This dispute was tried before me on a documents-only basis.

2       The parties have agreed for the dispute to be adjudicated under a protocol implemented in the State Courts which provides for civil trials or assessments of damages to be conducted on a documents-only basis (“DOTA hearing”).[note: 1] The DOTA hearing is to allow for quicker disposal of cases which whilst involving issues that require adjudication, parties’ contentions on such issues could be proven by way of documentary evidence and expressed in writing. Besides issues of law, such cases may involve factual disputes, and affidavits of evidence-in-chief (“AEICs”) are filed; but parties take the view that having the witnesses of facts give evidence in court would not necessarily advance their respective position.

3       When filing a request for DOTA hearing, parties would have to state the extent of their agreement in respect of the presentation of evidence and submissions. In the present case, in requesting for the dispute to be resolved solely by documents, the parties have stated as follows:[note: 2]

(a)     The parties have agreed to admit AEICs without the attendance of witnesses.

(b)     The determination of existing disputes of fact can be made based on contemporaneous documentation alone.

(c)     The issues between the parties can be resolved by legal arguments.

(d)     The parties do not require oral submissions to be made at the trial and will be proceeding on the basis of written submissions.

The dispute

4       The dispute involves a claim for repayment of a personal loan of $12,000. After considering the documents and the parties’ written submissions, I am allowing the claim. My reasons are as follows.

5       The claimant is a financial services manager who manages a team at AIA Singapore Private Limited (“AIA”). The claimant and the defendant were first acquainted with each other in February 2018 while they were both employed by Unioracle Alliance LLP. They were also colleagues at Great Eastern Financial Advisers Private Limited (“Great Eastern FA”) from 24 June 2019 to 2 November 2021, where the defendant was a financial consultant reporting to the claimant who was a manager.

6       On 2 November 2021, the claimant left Great Eastern FA to join AIA. Sometime in May 2022, the claimant decided to recruit the defendant to his team at AIA. In response to the claimant’s overtures, the defendant resigned from Great Eastern FA on 29 May 2022.

7       On 27 October 2022, AIA issued a letter of intent to the defendant (the “LOI”). The LOI stated that the defendant would be offered the position of a financial services manager subject to (among other conditions) passing a financial soundness assessment (the “Financial Soundness Assessment”). The Financial Soundness Assessment included the requirement that the defendant’s personal liabilities for unsecured loans should not be more than $30,000.

8       The defendant informed the claimant that he had unsecured debts of more than $60,000. In response, the claimant extended a personal loan totalling $24,000 (the “Loan”) to the defendant to enable the defendant to discharge his debts. The defendant subsequently made various repayments towards the Loan, leaving an amount of $12,000 owing to the claimant. This amount forms the subject matter of the claim in the present action. The defendant does not dispute the outstanding loan amount of $12,000. But he contends that the claimant is barred from recovering the amount because the claimant had extended the Loan to him for illegal purposes.

Issues to be determined

9       The question to be determined by me in this action is therefore whether the claim for the sum of $12,000 is unsustainable because the Loan was extended to the defendant for illegal purposes.

10     The agreed list of issues are as follows:

(a)     Whether the loan agreement (“Loan Agreement”) was entered into with the object of misleading AIA in its assessment of the defendant’s financial soundness (“Misleading AIA”).

(b)     Whether the Loan Agreement was entered into with the object of circumventing MAS’s direct and/or indirect regulations concerning the financial soundness of insurance agents under the fit and proper person framework (“Circumventing MAS Regulations”).

(c)     Whether Misleading AIA or Circumventing MAS Regulations would be an illegal purpose such that the Loan Agreement would either (i) fall within one of the established categories of illegality at common law; or (ii) have been entered into with the object of committing an illegal act.

(d)     If the Loan Agreement was entered into for the purpose of Misleading AIA or Circumventing MAS Regulations, whether the Loan Agreement remains enforceable.

Analysis and findings

Events leading to the claimant extending the Loan to the defendant

11     I turn first to the events leading to the claimant extending the Loan. As alluded to above, AIA issued the LOI to the defendant on 27 October 2022. It stated that the defendant’s position with AIA was subject to requirements which included full compliance by the defendant with all sales/market conduct guidelines/policies of AIA. As part of complying with these guidelines/policies, the defendant had to pass the Financial Soundness Assessment. This included the condition that the defendant’s outstanding liabilities for unsecured loans should not be more than $30,000. Otherwise, AIA would need to assess his suitability for the position which had been offered to him.

12     It is not disputed that for the defendant to join the claimant’s team, AIA would have to appoint the defendant as one of its representatives under s 23 of the Financial Advisers Act 2001. The defendant would also have to be registered as an insurance agent with the Agents’ Registration Board (the “ARB”) through AIA. This was one of the Monetary Authority of Singapore’s (“MAS”) mandatory requirements.[note: 3]

13     In both instances, AIA would have to be satisfied that the defendant is a fit and proper person. In respect of the appointment as one of its representatives, AIA had to lodge with MAS a certificate that the defendant is such a fit and proper person.[note: 4] In respect of registering the defendant with the ARB as one of its insurance agents, AIA has to ensure that the defendant was able to comply with the General Insurance Agents' Registration Regulations, which similarly required the defendant to be a fit and proper person.

14     In this regard, MAS has prescribed that being a fit and proper person means the person must be financially sound,[note: 5] a requirement adopted by the ARB.[note: 6] Therefore, to meet the requirements of MAS and the ARB, AIA stipulated in the LOI that the defendant had to pass the Financial Soundness Assessment. As referred to above, this included the condition that the defendant’s outstanding liabilities for unsecured loans should not be more than $30,000.

15     On 1 November 2022, the defendant signed his confirmation and acceptance of the LOI. It is not disputed that the defendant had outstanding liabilities of more than $60,000 at the material time. The defendant informed the claimant that his outstanding liabilities were primarily in the form of credit card debts. It is common ground that the parties knew that the Financial Soundness Assessment presented an obstacle to the defendant successfully joining the claimant’s team at AIA because of the defendant’s credit card liabilities. It was plain that with these credit card debts, the defendant would not be able to pass the Financial Soundness Assessment.

16     On 4 November 2022, the claimant agreed to extend a sum of $20,000 to the defendant so that the defendant could reduce his credit card debts. On 15 November 2022, the claimant forwarded a further sum of $4,000 to the defendant. The amount of $4,000 was for the defendant to pay off the shortfall in his MediSave account in his Central Provision Fund (“CPF”). This was part of the defendant’s CPF contribution obligations for self-employed income. The sums of $20,000 and $4,000 constituted the Loan.

17     The defendant contends that in reality the Loan did not reduce the defendant’s level of unsecured debt. The defendant’s case is that the Loan only served the purpose of masking the defendant’s true level of unsecured debt in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. This is to circumvent the MAS regulations.

18     It is not disputed that the defendant eventually cleared all of AIA’s fit and proper person assessments. What remained outstanding were the reference checks with the defendant’s former employer, Great Eastern FA. The defendant contends that this shows that the claimant’s scheme to circumvent the MAS regulations was successful.

19     The defendant’s case is therefore that the Loan Agreement is unenforceable because it was entered into for the illegal purpose of providing a false picture of the defendant’s financial soundness to AIA Singapore.[note: 7]

20     The claimant on the other hand contends that the Loan Agreement is prima facie enforceable against the defendant. As such, it is the defendant’s evidential and legal burden to prove that the Loan Agreement is a contract that falls within one of the established situations of common law illegality, or entered into with the object of committing an illegal act and thus unenforceable. In this regard, the claimant says the defendant has failed to discharge his burden.

The purpose of the Loan

21     I turn to examine the issues. Both the first and second issues concern the question of what the purpose of the Loan was. I will discuss the two issues together.

22     As referred to above, the LOI stated that the offer of the position to the defendant included passing the Financial Soundness Assessment. This involved the requirement that the defendant’s personal liabilities for unsecured loans should not be more than $30,000. The defendant’s case is that personal liabilities for unsecured loans include unsecured debts owed to any person. It follows therefore that borrowing $24,000 from the claimant to pay off the credit card debts and CPF liabilities results in no reduction in the defendant’s overall level of unsecured debt. This is because the defendant’s indebtedness to the financial institutions and CPF has been transferred to indebtedness to the claimant.

23     In this regard, the defendant refers to an email sent by AIA to the claimant dated 5 January 2024 (the “AIA email”).[note: 8] The defendant refers to the following wording in the AIA email:

… As shared, for the onboarding of candidates with outstanding liabilities. Their outstanding liabilities for unsecured loans should not be more than $30,000. We will require the latest CBS report and declaration on whether they have any other unsecured loans for a financial soundness assessment. …

24     The defendant points out that the reference to a “CBS report” is to a Credit Bureau of Singapore report. It is well known that such a report will only show liabilities to financial institutions. The defendant’s argument is that AIA would require a further declaration from the defendant on whether he has “any other unsecured loans” for the purposes of the Financial Soundness Assessment. These other unsecured loans would include loans from third parties like the claimant. On the strength of the AIA email therefore, the defendant says that AIA would not consider the Financial Soundness Requirement to be limited to liabilities to financial institutions.

25     In other words, the defendant’s objection is not to the Loan been made for the purpose of reducing the defendant’s credit card debts and CPF liabilities. The defendant’s objection is to the Loan been made in order to give a false picture to AIA Singapore of the defendant’s financial soundness. The defendant’s case is that the Loan served the purpose of masking the defendant’s true level of unsecured debt so as to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. This is an illegal purpose.

26     The claimant on the other hand contends that for the Financial Soundness Assessment, AIA would only be concerned with the defendant’s liabilities to financial institutions as reflected in the CBS report in determining the defendant’s financial soundness.

27     The defendant’s response to this is that in light of the regulatory backdrop, it would be incredible if AIA were willing to certify the defendant’s financial soundness to MAS or countersign on his financial soundness to the ARB merely because the defendant had unsecured debts to financial institutions below S$30,000, while knowing that he had unsecured debts to other persons of another S$30,000.[note: 9]

28     Whilst I see the force of the defendant’s argument, in my view, the defendant has placed too much store in the wording of the AIA email set out above. Although the wording of the AIA email is certainly capable of the interpretation ascribed to it by the defendant, the key question is what were the steps that the defendant was required to undertake in the Financial Soundness Assessment. In this regard, the matters that the defendant was required to declare did not include a further declaration from him as to whether he has any other unsecured loans for the purposes of the Financial Soundness Assessment. The matters that the defendant was required to declare are set out in AIA’s fit and proper criteria declaration form (the “Form”).[note: 10] There are a total of 31 items of declaration in the Form covering various matters, including a number that concerns financial liabilities. However, there is no item that require the defendant to declare that he has no unsecured debt owed to persons other than financial institutions.

29     In other words, whilst the AIA email alluded to a declaration regarding “any other unsecured loans” for the purposes of the Financial Soundness Assessment, the Form shows that AIA in fact does not require a declaration of any unsecured debt owed to persons other than financial institutions. It also follows that AIA was prepared to certify the defendant’s financial soundness to the MAS or countersign on his financial soundness to the ARB on the basis that he did not owe unsecured debts to financial institutions in excess of $30,000, without the need to consider if he owed unsecured debts to other persons.

30     With that being the case, it cannot be said that the Loan Agreement was entered into with the object of Misleading AIA or Circumventing MAS Regulations.

31     In my view therefore, there is nothing objectionable in the claimant assisting the defendant to reduce his indebtedness to financial institutions. That the Loan enabled the defendant to pass the Financial Soundness Assessment does not render the purpose of the Loan illegal. The Loan was not given for the purpose of masking the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment.

32     It is of pertinence to bear in mind that it is not illegal to borrow money to repay and reduce debts. Refinancing a loan is not per se illegal, as the defendant admits.[note: 11] The claimant assisting the defendant to reduce his indebtedness to the banks is a different question from whether the Loan Agreement was entered into for illegal purposes.

33     I therefore find that the purpose of the Loan Agreement was not to mask the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. There is thus no reason why the Loan Agreement is not enforceable against the defendant.

Illegality

34     I have made the finding that the Loan Agreement was not entered into by the parties for illegal purposes and is enforceable against the defendant. My finding is sufficient for me to allow the claim against the defendant. However, for completeness I will briefly discuss the third issue. The third issue concerns the question of whether Misleading AIA or Circumventing MAS Regulations would be an illegal purpose such that the Loan Agreement would either (i) fall within one of the established categories of illegality at common law; or (ii) have been entered into with the object of committing an illegal act.

35     Both sides referred to the two leading cases on illegality, the Court of Appeal decisions in Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (“Ting Siew May”) and Ochroid Trading Ltd and another v Chua Siok Lui (trading as VIE Import & Export) and another [2018] 1 SLR 363 (“Ochroid”).

36     The claimant has helpfully summed up the underlying principles of the doctrine of illegality laid down in the two cases. They are as follows:

(a)     If the contract was prohibited under statute and/or an established head of common law public policy, there could be no recovery.

(b)     If the contract was not unlawful but entered into with the object of committing an illegal act, the principle of proportionality would be applied to determine if the contract is enforceable.

(c)     If the contract is not enforceable (whether due to (a) or (b) above), the benefits conferred thereunder may nevertheless be recoverable.

37     As regard what type of contracts may be prohibited under the established heads of common law public policy, it has been held in Ochroid that they include contracts that are made to commit a crime, tort or fraud. The Court of Appeal stated at [29]:

29    In so far as illegality at common law is concerned, the question is whether the contract falls foul of one of the established heads of common law public policy. The heads of public policy at common law which would render a contract unenforceable were developed over time. These include contracts prejudicial to the administration of justice (including contracts to stifle a prosecution and contracts savouring of maintenance or champerty); contracts to deceive public authorities; contracts to oust the jurisdiction of the courts; contracts to commit a crime, tort or fraud; contracts prejudicial to public safety; contracts prejudicial to the status of marriage (including marriage brokage contracts as well as agreements by married persons to marry and agreements between spouses for future separation); contracts promoting sexual immorality; contracts that are liable to corrupt public life; and contracts restricting personal liberty (see “Illegality and Public Policy” in ch 13 of The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) (“Illegality and Public Policy in Singapore”) at paras 13.065–13.113).

[Emphasis in original]

38     The defendant’s case is that the Loan Agreement is ipso jure unenforceable because it is a contract to perpetrate a fraud on a third party, and thus prohibited at common law. The defendant further argues that even if the Loan Agreement were only a contract with an illegal object outside the established categories of common law illegality, refusing to enforce the contractual claim is a proportionate response to the illegal purpose in this case. In other words, the defendant is contending firstly that the contract is unlawful because it is to perpetrate a fraud; and second, if the contract is not unlawful, it is a contract entered into with the object of committing an illegal act.

39     In respect of contracts not prohibited under the established categories of common law illegality, but entered into with the object of committing an illegal act, the Court of Appeal stated in Ochroid at [35]-[36] as follows:

35    In particular, taking the cue from St John Shipping ([28] supra) once again, it was accepted that there is a broad and general category of contracts illegal at common law comprising contracts which are not unlawful per se but entered into with the object of committing an illegal act. This category depends on the intention of one or both of the contracting parties to break the law at the time the contract was made. It includes contracts entered into with the object of using the subject matter of the contract for an illegal purpose, contracts entered into with the intention of using the contractual documentation for an illegal purpose, as well as contracts which are intended to be performed in an illegal manner. This category also comprises contracts entered into with the intention of contravening a statutory provision, although not prohibited by that provision per se (at [43]–[45], [77] and [112]).

36    Having recognised this general category of common law illegality, the court acknowledged that it would be unjust to lay down a strict rule that all contracts falling within this broad category would be automatically unenforceable. There might be legal wrongs intended to be committed by one or more parties which are relatively trivial and it would be disproportionate to render the contract void and unenforceable in such situations (at [46]). Therefore, it was held that the application of the doctrine of illegality to this particular category of contracts is subject to the (limiting) principle of proportionality.

[Emphasis in original]

40     I turn first to the defendant’s contention that the Loan Agreement is a contract to perpetrate a fraud on a third party. Fraud in this context must mean that a tort of deceit or fraudulent misrepresentation has been committed by the claimant. In this regard, I have earlier examined the facts surrounding the Loan Agreement and concluded that the Loan Agreement was not entered into by the parties for the purpose of masking the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. There is thus no evidence of deceit or fraudulent misrepresentation in the parties entering into the Loan Agreement.

41     In any case, to establish fraud the defendant will have to satisfy a relatively high standard of proof: Ting Siew May at [39] - [41]. Further, as pointed out by the claimant, the defendant has not pleaded any elements of the tort of deceit or fraudulent misrepresentation. I also note that there is no evidence adduced of any of the elements of deceit or fraudulent misrepresentation. I am unable to make a finding that fraud has been perpetrated on AIA by the parties entering into the Loan Agreement.

42     I turn next to the defendant’s alternative contention that the Loan Agreement was a contract with an illegal object. In this regard, as seen in Ochroid at [35], to establish that a contract was entered into with the object of committing an illegal act, it must have been the intention of one or both of the contracting parties to break the law at the time the contract was made. Breaking the law in this context includes parties using the contract in question for the various illegal purposes enumerated by the Court of Appeal in the passage. These include contracts entered into with the object of using the subject matter of the contract for an illegal purpose, contracts entered into with the intention of using the contractual documentation for an illegal purpose, as well as contracts which are intended to be performed in an illegal manner. Stemming from my earlier finding that the Loan Agreement was not entered into by the parties to mislead AIA, the Loan Agreement does not fall into any of the categories of illegal purposes. I am thus unable to agree that it is a contract with an illegal object.

43     I have dealt with the third issue, and the remaining agreed issue is whether the Loan Agreement remains enforceable if the Loan Agreement was entered into for the purpose of Misleading AIA or Circumventing MAS Regulations. This issue concerns the question of the principle of proportionality as discussed by the Court of Appeal in Ochroid at [36], and Ting Siew May at [46], [66], [77]. As I have made the finding that the Loan Agreement was not entered into for the purpose of Misleading AIA or Circumventing MAS Regulations; and that it was not prohibited under an established head of common law public policy, nor entered into with the object of committing an illegal act, I do not propose to discuss the remaining issue.

Conclusion

44     In the premises of the above, I am unable to agree with the defendant that the Loan Agreement is unenforceable. It is for the defendant to prove on a balance of probabilities that the Loan Agreement is a contract that falls within one of the established situations of common law illegality or entered into with the object of committing an illegal act. The defendant has failed to discharge his burden in doing so.

45     I accordingly allow the claim, with interest at 5.33% per annum from the date of the originating claim to the date of judgment.

46     As for the question of costs, I note that the applicable range of costs set out in Pt 5 of App 1 of the Rules of Court 2021 is $3,000 to $6,000. Taking into consideration the value and nature of the claim, the amount of work done by parties, and the principle of proportionality, I fix costs at $3,500 all-in to be paid by the defendant to the claimant.

[note: 1]See Practice Direction 52 of the State Courts Practice Directions 2021.

[note: 2]These terms are in accordance with the guidelines set out in Form 16 of the State Courts Practice Directions 2021.

[note: 3]Pursuant to MAS Notice 211.

[note: 4]Section 26(1)(b) of the Financial Advisers Act 2001.

[note: 5]MAS Guidelines on Fit and Proper Criteria FSG-G01.

[note: 6]Under the General Insurance Agents' Registration Regulations.

[note: 7]Para 1 of the defendant’s written submissions; paras 8, 12, 13 & 31 of defence.

[note: 8]AB Tab 39.

[note: 9]Para 18 of the defendant’s written submissions.

[note: 10]Pg 68-70 of the claimant’s AEIC.

[note: 11]Para 11 of defendant’s written submissions.

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Hong Seh Yachting Pte Ltd v Loo Leong Thye
[2024] SGDC 253

Case Number:District Court Originating Claim No 613 of 2023, HC/DCA No. 16 of 2024
Decision Date:27 September 2024
Tribunal/Court:District Court
Coram: Teo Guan Siew
Counsel Name(s): Mr Tay Wei Loong Julian,Mr Dominic Kwok Chong Xin and Mr Lim Liang You Matthew [Lee & Lee] for the claimant; Mr Phua Cheng Sye Charles and Ms Noor Heeqmah Binte Wahianuar [PKWA Law Practice LLC] for the Defendant
Parties: Hong Seh Yachting Pte. Ltd. — Loo Leong Thye

Contract – Contractual terms – Parol evidence rule – Whether there was collateral oral agreement

[LawNet Editorial Note: An appeal to this decision has been filed in HC/DCA 16/2024.]

27 September 2024

District Judge Teo Guan Siew:

Introduction

1       This case concerned the sale of a yacht from the claimant to the defendant, with the trade-in of the defendant’s existing yacht as part payment of the purchase price. The dispute was whether the defendant acted in breach of contract by not handing over his existing yacht to the claimant by a certain stipulated date.

2       I granted judgment for the claimant. The defendant has filed an appeal against my decision.

The Parties’ cases

Claimant’s case

3       The claimant’s case was relatively straightforward. It relied on the written Sale and Purchase Agreement (“the SPA”) signed by the parties, under which the defendant had agreed to purchase a new yacht, the Navetta 30 (N30) from the claimant for the price of Euro 9,338,532.[note: 1] In particular, the claimant relied on the following express terms in the SPA:

(a)     The defendant would trade in his used yacht, the Ferretti 850 (F850) at the trade-in price of Euro 3.5m, and this would constitute part payment of the purchase price of the N30.

(b)     According to the payment schedule, the F850 would be handed over to the claimant on or by 31 July 2022.

(c)     The delivery date for the new vessel N30, ex-yard in Italy, was estimated to be 31 August 2022, and the delivery date of the N30 in Singapore was estimated to be November 2022.

4       It was undisputed that the defendant did not hand over the F850 to the claimant by 31 July 2022, the deadline stipulated in the SPA. Instead, the defendant handed over the F850 only on 6 December 2022, when the new vessel the N30 was delivered to him in Singapore.

5       Since the trade in of the F850 constituted part payment of Euro 3.5m towards the purchase price, it was the claimant’s case that the defendant’s failure to hand over the F850 by 31 July 2022 meant that the defendant was in breach of the SPA in making late payment. Accordingly, the claimant sought late payment interest at the agreed contractual rate on the sum of Euro 3.5m for the period from 31 July 2022 to 6 December 2022, amounting to $137.331.02.

6       In addition, the claimant sought reimbursement from the defendant for certain berthing charges it had paid to a third party, Mr Su Shuiming (“Mr Su”). This arose because the claimant had contracted to sell the F850 to Mr Su. Due to the defendant’s refusal to hand over the vessel by 31 July 2022, the claimant was unable to deliver the F850 to Mr Su by their contractually agreed date. As a result, the claimant ended up paying Mr Su berthing charges the latter incurred during the period of delay when the F850 was not delivered.

Defendant’s case

7       The defendant’s case rested essentially on certain representations that were supposed to have been made to him by the claimant’s representatives, Ms Della Pearce (“Ms Della”) and Mr Edward Tan (“Mr Edward”). These were:[note: 2]

(a)     The N30 would arrive in Singapore sometime in July 2022 (“the first representation”);

(b)     The handover of the F850 would only occur upon the arrival of the N30 in Singapore (in other words, that the handover of the two vessels would be concurrent) (“the second representation”);

(c)     The handover date of 31 July 2022 for the F850 as stated in the SPA was premised on the claimant’s estimate that the N30 would be delivered on or before 31 July 2022 (“the third representation”); and

(d)     In the event there was delay in the delivery of the N30 to the defendant in Singapore, the handover date of 31 July 2022 for the F850 would not be enforced by the claimant against the defendant (“the fourth representation”).

(collectively, “the Representations’)

8       While the Representations form the cornerstone of the defendant’s factual case, the pleaded Defence was however conceptually and legally unclear. The Defence simply stated that the defendant was not in breach of the SPA by virtue of the Representations, but the legal basis for saying so was not clear.[note: 3] The defendant also pleaded that the Representations were false, made negligently by the claimant, and had induced the defendant into entering into the SPA.[note: 4] Insofar as the language used suggested that the defendant was pleading misrepresentation (whether fraudulent or negligent), there were difficulties. First, all of the Representations pertained to future events or promises, not statements of existing or past facts. The Representations were therefore not of a nature that generally constitute actionable misrepresentation in law: Tan Chin Seng v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 at [21]-[22]. Second, since the Representations related to what was going to happen in the future, it was difficult to see how they could be said to be false at the time they were made, at any rate not without particulars of how and why the claimant’s representatives would or should have known at the material time that what they represented were untrue; and there were no such particulars, whether in pleadings or evidence. Further, the purpose of pleading misrepresentation was not even clear – the defendant was certainly not seeking to rescind the contract since he took delivery of the N30; neither was he counterclaiming for damages.

9       It was only at the hearing of the trial and in closing submissions that the defence based on a collateral oral agreement emerged. According to this defence, the Representations by the claimant, particularly that on concurrent handover, were agreed upon orally between parties, such that there was no breach of contract by the defendant in not handing over the F850 by the stipulated date in the SPA.

10     The other aspect of the Defence was that by virtue of the fourth representation, namely that the claimant would not enforce the F850 handover date if the N30’s delivery was delayed, the claimant was estopped from making its current claim against the defendant.[note: 5]

Issues

11     The two main issues before me were: (a) whether the defendant could rely on a collateral oral agreement; and (b) whether he could rely on the doctrine of promissory estoppel.

Whether defendant could rely on a collateral oral agreement

12     The existence of a collateral oral agreement was not clearly pleaded in the Defence, and therefore no particulars were given of such an agreement in the pleadings. Even in the defendant’s opening statement and closing submissions, there was a lack of specificity as to what the terms of this alleged oral agreement were. Be that as it may, I analysed this defence on the basis that the Representations I set out above, formed the terms of the alleged collateral oral agreement.

Parol evidence rule

13     The parol evidence rule, which is codified under ss 93 and 94 of the EA, prohibits the admission of extrinsic evidence to prove the terms of a written contract, and in particular, oral evidence cannot generally be admitted to contradict, vary, or add to those terms.

14     In the present case, the terms of the alleged collateral oral agreement, specifically the first and second representations, contradicted or varied the express terms of the SPA. This was clear from the two cover pages of the SPA which summarised the key provisions.[note: 6] First, under the SPA, the delivery date for the N30 was stated to be “[e]stimated 31 August 2022” in Italy and “[e]stimated November 2022” in Singapore. The first representation, in warranting that the N30 would arrive in Singapore in July 2022, even before the estimated date of delivery in Italy, clearly contradicted or varied the term on delivery date of the N30 under the SPA. In this regard, I did not accept the defendant’s argument that there was no contradiction simply because the dates in the SPA were estimates. Whereas under the SPA the claimant only needed to deliver the N30 in Singapore within a certain estimated time frame, the first representation sought to bind the claimant to a fixed, and much earlier deadline of July 2022 for the vessel to arrive in Singapore. The second representation on concurrent delivery contradicted the express term in the SPA obliging the defendant to hand over the F850 latest by 31 July 2022. This was because the alleged concurrent delivery term of the oral agreement would mean that the defendant was no longer bound to hand over his old vessel by the stipulated date in the SPA – instead, he could choose to hand over much later, depending on when the N30 arrived in Singapore.

15     There are, however, exceptions or provisos to the parol evidence rule as reflected in s 94. Proviso (b) states:

(b)    the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved; in considering whether or not this proviso applies, the court is to have regard to the degree of formality of the document.

[emphasis added]

16     In my view, this proviso was not applicable on the facts of the present case. First, the SPA had a significant degree of formality: it was a written document prepared with the claimant’s letterhead, and signed by both the defendant and the claimant with its company stamp. Its first two pages summarised the key terms, with the details set out in the General Conditions section of the document that followed. The formal nature of the SPA was one factor against allowing the introduction of extrinsic evidence by way of an oral agreement. Second, the alleged collateral agreement did not deal with any matters on which the written contract was silent. Instead, the Representations all dealt with the delivery and handover dates of the N30 and the F850 respectively, which were matters already expressly catered for in the SPA. Third, the Representations which allegedly formed the terms of the oral agreement were inconsistent with the express terms of the SPA.

17     Under clauses 5.3 and 5.4 of the SPA,[note: 7] delivery of the N30 to the buyer shall take place only after the seller has received all amounts due in accordance with the contract and until then, the seller shall retain possession and ownership of the yacht. Under the payment schedule in the SPA, the final payment was to be made by 31 August 2022.[note: 8] This meant that even if the N30 arrived earlier than expected, the earliest time for the yacht to be delivered to the defendant would still be 31 August 2022 when the final instalment and full payment was made. By insisting on concurrent delivery possibly as early as on 31 July 2022, the alleged oral term would be inconsistent with the detailed clauses on the terms of delivery in the SPA.

18     This alleged oral agreement for concurrent handover enhanced the defendant’s contractual position (because he would no longer be bound by a fixed date for handover of his F850). At the same time, it added to the contractual obligations and reduced the contractual rights of the claimant (because the claimant had to ensure delivery of the N30 by July 2022 instead of the estimated time frame of Nov 2022 and it could not take over the F850 until the N30 arrived). The law is clear that if the collateral agreement adds to or reduces the rights and obligations of the parties, it would be inconsistent with the written agreement: Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR(R) 77 at [15]; Latham Scott v Credit Suisse First Boston [2000] 2 SLR(R) 30 at [21]-[22]; Chai Kwok Seng Anthony v CCM Group Limited [2013] SGHC 208 at [52]-[54].

19     In addition to proviso (b), the defendant also relied on proviso (f) to s 94, which brings into play the contextual approach to contractual interpretation that permits extrinsic evidence to be considered. The defendant argued that such a contextual approach under proviso (f) is called for because there was ambiguity in the terms of the SPA relating to the delivery of the N30 (relying on Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 at [111]). The first problem with the defendant’s argument was a matter of pleadings and civil procedure. To guard against an overly expansive recourse to all manner of extrinsic evidence, the Court of Appeal in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (at [72]-[73]) imposed strict requirements of pleading on any party who seeks to invoke the contextual approach, including in particular the need to plead with specificity each fact of the factual matrix the party wish to rely on in support of the construction of the contract and sufficient particulars of the circumstances under which such facts were known to the contracting parties. None of these particulars were pleaded – in fact, the Defence did not even say that there was ambiguity in the SPA.

20     In any event, my view was that there was no ambiguity in the SPA at all in relation to the delivery of the N30. The mere fact that an estimated time frame, instead of a fixed date, was given did not make the term regarding the delivery of the N30 ambiguous. This was not a case where there were words used or statements made which were capable of different meanings or interpretation. The term meant exactly what it said, namely that the delivery of the N30 was estimated to be on 31 August 2022 in Italy and in November in Singapore. The parties essentially agreed on an estimated time frame – there was nothing ambiguous about that. Indeed, it was understandable, and perhaps even to be expected, that because this was a new vessel that was being built, the claimant was not in a position to warrant a fixed date for delivery at the point of the signing of the SPA, since it would still take a considerable length of time from that point till when the N30 is ready. That was also why it was stated expressly under clause 4.1 that the actual date of delivery would be the one stated in the Notice of Delivery to be subsequently issued.[note: 9]

21     Accordingly, my view was that proviso (f) likewise did not assist the defendant.

22     Finally, and rather curiously, the defendant’s submissions also referred to proviso (a) to s 94 and in that context the case of Exklusiv Auto Services Pte Ltd v Chan Yong Chuan Eric [1995] 3 SLR(R) 728. Any reliance on proviso (a) was misplaced, because that dealt with when a party was allowed to adduce oral evidence to prove facts that would invalidate the contract, which was not what the defendant was seeking. Insofar as the issue of a separate oral agreement was concerned, the High Court in that case in fact held (at [19]) that the oral representations there were inadmissible because of proviso (b), as those representations were inconsistent with the written contract. This, in the court’s view, precluded the finding that there was a separate oral agreement. The case was ultimately decided on whether there was misrepresentation which invalidated the contract so as to entitle the party misled to an order for rectification of the contract (at [20]). But that was not the defendant’s case here.

23     For the above reasons, in my view, the parol evidence rule applied in the present case so as to preclude any attempts by the defendant to introduce evidence of the alleged collateral oral agreement. This was sufficient to deal with this aspect of the defence, but for completeness and in case I was wrong on the applicability of the parol evidence rule, I went further to examine the evidence that emerged at trial to determine whether the claimant’s representatives did make those Representations and agreed on them with the defendant prior to the signing of the SPA.

Whether the Representations were made and agreed upon

24     Even though the defendant claimed that there were multiple occasions when the Representations were allegedly made to him, he only particularised three such occasions – namely, on 2 July 2021 (when the second representation on concurrent delivery was supposed to have been made to him by Ms Della), on 23 Dec 2021 (when both Ms Della and Mr Edward allegedly made the Representations to him orally just before the signing of the SPA), and on 25 March 2022 (in the form of Ms Della’s phone message to him to the effect that the N30 would be ready in July and he would not be without a boat like the previous time in the case of the Riva 75).[note: 10] To the extent that the defendant’s case was that the Representations induced him to enter into the SPA and were agreed upon orally before the signing of the SPA, only the first two occasions would be directly relevant. The phone message on 25 March 2022, like the other post-contract correspondence (which I will deal with later), could at most constitute evidence from which it might be inferred that the parties had a collateral oral agreement prior to signing the SPA.

25     It was of significance that there was no contemporaneous documentary evidence at all of the Representations having been made prior to the signing of the SPA, other than arguably the phone message that the defendant sent to Ms Della on 2 July 2021.[note: 11] That phone message was however the defendant’s own description of the discussion on 2 July. Ms Della did not reply to agree or confirm, and instead said she would document everything they spoke about in the Letter of Intent (“the LOI”) for his review. The defendant argued that Ms Della was effectively silent, and that such silence constituted a representation that there would be concurrent handover. I will return to this point shortly. But for present purposes, the fact of the matter was that all the available contemporaneous documentary evidence leading up to the signing of the SPA pointed in the other direction – that there was no such collateral agreement for concurrent handover.

26     In the LOI of 5 July 2021 shortly following the 2 July discussion,[note: 12] the draft SPA and cover email on 20 August 2021,[note: 13] the defendant’s email in reply the next day on 21 August,[note: 14] as well as the final SPA itself on 23 December 2021,[note: 15] no mention was made of concurrent handover or any of the other alleged representations. The defendant is an experienced businessman. If concurrent handover was of such crucial importance to him and had been agreed upon between parties, he would have insisted that this be reflected by the claimant in the final SPA, or even if not in the final SPA, at least recorded in writing separately at some point in time throughout the almost six months period between his initial discussion with Ms Della in July and the signing of the SPA in December. The defendant alluded to his trust in the claimant, having previously purchased another yacht, the Riva 75, from them. The parties might have enjoyed a good relationship, but this was still a commercial transaction involving substantial value. Moreover, according to the defendant, he was actually unhappy with his purchase of the Riva 75 because the vessel arrived only after he had handed over his old yacht, which meant he was without a yacht for some time. Given his earlier experience with the Riva 75, if the defendant indeed managed to agree with the claimant that this time the handover had to be concurrent, he would certainly have made sure that this important term be inserted into the SPA. The defendant had more than ample time and opportunity to do so, as could be seen from how he made other changes to the draft SPA such as on the exchange rate and certain specifications of the yacht.[note: 16]

27     I come now to the post-contract correspondences that the defendant relied on, and his argument that silence on the part of Ms Della and Mr Edward amounted to representations. The case law and arguments cited by the defendant were concerned with silence in the context of a claim in misrepresentation. It was not obvious whether the same legal principles even apply to the defence in the present case which was based on a collateral oral agreement. In any case, for misrepresentation by silence to be established, mere silence is insufficient and it must be shown that there was a willful suppression of material and important facts by the representor: Trans-World (aluminium) Ltd v Cornelder China (Singapore) [2003] 3 SLR(R) 501 at [66]. The defendant failed to plead, or establish at trial, what such material or important facts were suppressed or deliberately withheld from him by the claimant’s representatives.

28     On the other hand, the claimant’s representatives gave explanations for each of the instances when they were alleged to have remained deliberately silent. I deal first with the 2 July 2021 phone messages, followed by the post-contract correspondences.

29     As mentioned above, in response to the defendant’s message on 2 July 2021 that the “handover of Ferretti [be] at the same time”, Ms Della stated that she would document everything they discussed at the meeting in the LOI for the defendant’s review. Ms Della explained that while concurrent handover might possibly have been on the defendant’s wish list, this was never discussed or agreed upon at the 2 July 2021 meeting.[note: 17] This was because such an arrangement would not be commercially viable for the claimant who would have needed time to sell the used vessel the F850 to fund the purchase of the new vessel the N30.[note: 18] Her explanation was consistent with the reason given by Mr Edward for why the claimant would not have agreed to the concurrent handing over of the F850 only upon the N30’s arrival.[note: 19] Ms Della further explained that because the defendant was a long-time customer of the claimant whereas she was just an employee of the claimant, she did not want to directly contradict the defendant and risk offending him, which accounted for why she chose to instead couch her reply with reference to how she would record the points of discussion in the subsequent LOI.[note: 20]

30     After the signing of the SPA, there were further exchanges between the parties. The defendant’s argument was that in these exchanges, the failure of the claimant’s representatives to disabuse him of his expectation of concurrent handover amounted to a representation of the same. Specifically, in the context of certain phone messages from Ms Della on 3 March 2022 regarding an inventory check of the F850 and how the new owner Mr Su offered to pay for any defects after the check, the defendant responded to Ms Della stating that there was no need for the new owner to take such responsibility “as still got 6-8 months”.[note: 21] According to the defendant, his message implied that he would not deliver the F850 to the claimant by 31 July 2022 (presumably because he meant he would still be holding on to the F850 for six to eight months from 3 March 2022, ie till September to November), and that Ms Della’s failure to refute his message constituted a representation that there would be concurrent handover. However, as Ms Della explained, the defendant’s message was vague and she would not have read it as suggesting that the defendant would not be complying with the term in the SPA on the handover date for the F850.[note: 22] Moreover, it should be highlighted that the defendant’s position in relation to this message was inconsistent with his own case that the claimant had represented to him that the N30 would be ready in July for the concurrent handover with the F850.

31     As for the defendant’s email of 13 March 2022 to Ms Della stating “[l]et me enjoy in peace till the arrival of Navetta 30”,[note: 23] Ms Della explained that this email was sent around the time when the claimant was exploring with the defendant the possibility of an earlier handover of the F850 before the contractually stipulated date of 31 July 2022, because the buyer of the F850, Mr Su, had requested for earlier use of the yacht. As such, she did not interpret what the defendant said to mean that the F850 would be handed over only when the N30 arrived, but rather that the defendant wanted the claimant to stop troubling him with the request for the defendant to hand over the F850 before 31 July 2022.[note: 24] Her evidence was corroborated by Mr Edward who similarly testified that this was the period of time when the defendant was getting increasingly irritated by the claimant’s request for an earlier handover to facilitate the use of the F850 by Mr Su.[note: 25] It should be noted that Ms Della’s explanation was also consistent with the other parts of the defendant’s email, in particular his statement that he wanted “[n]o more discussion on temporary uses from your buyer, period”. It was further telling that the defendant started his email by saying “[l]et abide by the contract we signed on the handover of Feretti 850”, which was a clear reference to the SPA (the only contractual document that was signed), and not any collateral agreement on concurrent delivery.

32     I come to the phone message on 25 March 2022,[note: 26] in which the defendant claimed Ms Della had made the second representation to him, namely that on concurrent handover. The material parts of Ms Della’s phone message to the defendant read as follows:

anyway Mr Loo, I wanted to speak to you personally because I think previously I misinterpreted my message to you wrongly. Your Navetta 30 will be ready in July and on the contract I also asked for your yacht only on 31st July 2022, this does not change at all just to clarify with you.

Ferreti 850 is still yours until 31st July 2022. I am wondering if once in a while you can allow the other party to use the boat? Of course only when you are not using. There is no change of ownership or title, its yours. Only a very small favour once in a while you allow them to go out.

Maybe we gave you impression you had to give up your boat and will be without a boat like your Riva 75 last time, but I promise you this is not the case at all.

33     The defendant argued that Ms Della’s reference to “your Navetta30 will be ready in July” was a representation of concurrent handover in Singapore in July. However, Ms Della explained that what she meant was that the N30 would be ready in July in Italy for arrangements such as surveying to be done, in line with the estimated time frame in the SPA for the vessel to be ready ex-yard Italy by 31 August, and not that the vessel would arrive in Singapore in July.[note: 27] Her explanation was consistent with the earlier messages she had sent to the defendant in March, where she had reminded him to make arrangement such as sending his captain and technical team to Italy for training.[note: 28] In addition, the claimant’s Mr Alfred Tan sent an email to the defendant on 16 March 2022,[note: 29] nine days before Ms Della’s message of 25 March 2022, in which it was stated clearly that the N30 would be ready in Ancona, Italy in July 2022. This further reinforced the fact that Ms Della had to have been referring to the vessel being ready in Italy, not Singapore, in July. Given that it would take time for the N30 to be brought from Italy to Singapore, and the defendant himself acknowledged at trial that this could take approximately two months, it was therefore highly unlikely that the defendant would have interpreted Ms Della’s message to mean that the N30 would arrive in Singapore in July.

34     In respect of Ms Della’s comment that the defendant would not be left without a yacht like the previous time when he sold the Riva 75, firstly, her message was sent in the context of the claimant’s request to the defendant for Mr Su to be allowed to use the vessel on occasion before the handover date of 31 July 2022, and Ms Della was clarifying that the defendant would of course remain the owner the F850 and not be without his yacht till 31 July 2022. Also, as Ms Della explained in her evidence, there would be a difference from the previous case of the Riva 75 because the time gap of about three months this time round between the handover of the used vessel (the F850) and the delivery of the new vessel (the N30) would be considerably shorter compared to the previous case of the Riva 75, when the lapse of time between handover and delivery was six to seven months.[note: 30]

35     In summary, I disagreed with the defendant’s submission that the reasons and explanations given by the claimant’s representatives in relation to the above emails and phone messages were not credible. In my view, their explanations were coherent and generally consistent with contemporaneous documentary evidence. In this connection, I also disagreed with the defendant counsel’s submission that the claimant’s representatives, Ms Della and Mr Edward were evasive witnesses who lacked candour.

36     The defendant’s principal attack on Ms Della’s credibility pertained to her evidence on the issue of whether there were others present during her discussions with the defendant at his office. The defendant called as witnesses three of his friends – Mr Choo Wee Ming (“Mr Choo”), Mr Tan Han Pin, Collin (“Mr Tan”) and Mr Wang Pin Hsun (“Mr Wang”) – who each testified that they had been present at meetings between the defendant and Ms Della. In particular, Mr Tan produced photographs,[note: 31] which he claimed he had taken on one such occasion, showing the defendant and Ms Della in discussions. Ms Della’s evidence, on the other hand, was that all her discussions with the defendant on his purchase of the N30 were with the defendant alone,[note: 32] and she could not remember there being others present in the defendant’s office during those discussions.[note: 33] She also testified that she did not even know Mr Tan or Mr Wang.[note: 34]

37     Ms Della’s evidence that the actual discussions took place only between her and the defendant was not seriously disputed by the defendant. Indeed, none of the three defendants said that they took any active part in the discussions, and neither were they introduced to Ms Della. Given that none of them participated in the discussions, it would not have been of significance to Ms Della whether or not they were present. That being the case, contrary to the defendant’s contention, it was not unbelievable for Ms Della to not have paid attention to whether there were other unknown persons in the office and to not be able to subsequently recollect their presence (if they were indeed there).

38     The defendant’s counsel made various references to other parts of Ms Della and Mr Edward’s testimonies to argue that they were evasive or overly wary, such as in relation to the 2 July 2021 meeting and the messages that followed thereafter. However, in my assessment, the two witnesses were simply firm and consistent in their evidence, for example, in rejecting the defendant counsel’s position that the defendant’s phone message that day constituted the only documentary record of what transpired at the meeting. This was because both witnesses took the view that the subsequent LOI three days thereafter documented the precise terms that were discussed on 2 July 2021. The fact that witnesses did not readily agree to the cross-examiner’s questions, and were assertive or forceful in their disagreement, did not mean that they were overly wary or lacking in candour.

39     I turn next to the evidence of the defendant’s three witnesses, who were called to testify to what they supposedly heard during meetings between the defendant and Ms Della. According to Mr Choo’s and Mr Tan’s evidence, they heard assurances from Ms Della to the effect that the defendant would not be without a yacht because there would be concurrent delivery of the new yacht and handover of the old one.[note: 35] In the case of Mr Wang, he was supposed to have heard Ms Della inform the defendant that the claimant would not take legal action against him.[note: 36]

40     As a preliminary point, I did not accept the claimant counsel’s objections that their evidence were inadmissible because they were not pleaded and constituted hearsay. What these witnesses might have personally heard or witnessed were a matter of evidence that went towards proving that the alleged representations were made – they did not strictly need to be pleaded; and neither did they constitute hearsay.

41     In evaluating their evidence, at a general level, the material events happened a considerable amount of time ago and these defendant’s witnesses were of course not the actual parties to the transaction in question; instead, they were just bystanders who were supposed to have overheard certain conversations. As such, the accuracy and reliability of their recollection of exact words could be called into question.

42     At a specific level, Mr Choo’s evidence was vague and not clear as to dates of the meetings when he was allegedly present. He eventually said under cross-examination that for the last meeting at which he was supposedly present, Mr Tan was also there.[note: 37] According to Mr Tan’s evidence, he was around at only one meeting between Ms Della and the defendant, on 2 July 21.[note: 38] As such, for both witnesses, their evidence related only to what allegedly transpired several months before the signing of the SPA, and were not probative as to what were further discussed and agreed upon leading up to the signing of SPA. As for Mr Wang, he claimed to have remembered the exact words spoken by Ms Della: supposedly Ms Della said “Don’t worry, we will not take legal action against you”. Yet he could not provide any context or background of the conversation; indeed, it would seem strange, and no explanation was given, as to why Ms Della would even be talking about the issue of legal action in the first place since this was the occasion of the signing of the SPA.

43     Accordingly, I gave little weight to the evidence of the three defendant witnesses.

44     Ultimately, while the defendant’s submissions chose to focus on witness credibility, it was clear that the courts placed greater weight on available objective documentary evidence when ascertaining whether there was an agreement reached: Ng Chee Chuan v Ng Ai Tee (administratrix of the estate of Yap Yoon Moi, deceased) [2009] 2 SLR(R) 918 at [19]; OCBC Capital Investment Asia Ltd v Wong Hua Choon [2012] 4 SLR 1206 at [41]. In the present case, the objective documentary evidence were consistent with and supported the testimonies of the claimant’s witnesses Ms Della and Mr Edward.

45     My finding of fact, based on my evaluation of all the evidence at trial – both objective documentary evidence and the testimonies of the witnesses – was that there was no collateral oral agreement between the parties on the terms of the Representations. The defendant might have expressed his wish for concurrent handover so as to not be without a boat, but my finding was that the claimant representatives made no such representations or assurances to him and parties did not come to an agreement that the F850 would be handed over only when the N30 arrived.

46     Therefore, the defence based on a collateral oral agreement failed both as a matter of law and fact.

Whether the defendant could rely on the doctrine of promissory estoppel

47     Given my finding that none of the Representations were made, which would include the fourth representation that formed the alleged promise for the purpose of the defendant’s reliance on promissory estoppel, this defence fell away as well.

48     But for completeness, my view was that the defendant’s argument was legally flawed in any case. To the extent the defendant claimed that the promise was made to him prior to the signing of the SPA, there would have been no pre-existing legal relationship at that time. It would therefore not be possible for there to be a promise not to enforce a term of the contract or any existing right, because none existed at that point in time. Even if the defendant’s case was that such representation continued to be made to him after the coming into effect of the SPA, there was no detrimental reliance on his part. By paying the claimant pursuant to the terms of SPA, the defendant was just doing what he was contractually obliged to do. Conversely, there was no advantage or benefit to the claimant in addition to what it was contractually entitled to. The defendant’s argument that the advantage was securing the defendant’s agreement to purchase the N30 is wrong, because the inquiry is what additional benefit the claimant might have obtained post-contract, and there was none.

49     For the foregoing reasons, neither of the two defences could succeed. I found that the claimant proved its case against the defendant for breach of the SPA in his late handing over of the F850.

Reliefs

50     As the trade-in of the F850 constituted part payment towards the purchase of the N30, it followed that there was late payment by the defendant. Under the SPA, late payment interest is payable. The defendant argued that the claimant did not prove it had suffered any loss arising from the late handover. However, a claim for contractual interest is distinct from a claim for damages and does not require proof of loss. The defendant did not challenge the rate of late payment interest on other grounds.

51     As for the berthing charges that the claimant paid to the third party buyer of the F850, I was satisfied that this was a direct loss sustained by the claimant in consequence of the defendant’s breach of contract in handing over the F850 late.

52     Accordingly, I granted judgment in favour of the claimant against the defendant in respect of: (a) the sum of $137,331.02 being contractual interest on the sum of Euro 3.5m; and (b) the sum of S$40,286.73 being damages in respect of the berthing charges that the claimant had paid to the third party buyer.

[note: 1]AB 80-174.

[note: 2]Defence (Amendment No. 2) at para 9.2, AB 32-33.

[note: 3]Defence (Amendment No. 2) at para 9.4, AB 34.

[note: 4]Defence (Amendment No. 2) at para 9.5-9.7, AB 34-35.

[note: 5]Defence (Amendment No. 2) at para 9.8, AB 35.

[note: 6]AB 81-82.

[note: 7]AB 85.

[note: 8]AB 81.

[note: 9]AB 84.

[note: 10]Defence (Amendment No. 2) at para 9.3, AB 33-34.

[note: 11]AB 181.

[note: 12]AB 59-61.

[note: 13]AB 230.

[note: 14]AB 230.

[note: 15]AB 80-174.

[note: 16]In his email dated 21 August 2021: AB 230.

[note: 17]NE 22 April 2024 at p 17 (line 19) to p 18 (line 24).

[note: 18]Ms Della’s AEIC at [7]: BA 209; NE 22 April 2024 at p 21 (lines 11 to 14).

[note: 19]Mr Edward’s AEIC at [10]: BA 7.

[note: 20]NE 22 April 2024 at p 20 (lines 2 to 12).

[note: 21]AB 185.

[note: 22]NE 22 April 2024 p 62 (line 28) to p 63 (line 14).

[note: 23]AB 186.

[note: 24]NE 22 April 2024 p 53 (line 24) to p 54 (line 4).

[note: 25]NE 22 April 2024 p 92 lines 1 to 9.

[note: 26]AB 192.

[note: 27]Ms Della’s AEIC at [26]: BA 217-218.

[note: 28]AB 190.

[note: 29]AB 187-189.

[note: 30]Ms Della’s AEIC at [27]: BA 218.

[note: 31]DBD 9-11.

[note: 32]Ms Della’s AEIC at [29]: BA 219.

[note: 33]NE 22 April 2024 p 25 (line 15) to p 26 (line 9).

[note: 34]NE 22 April 2024 p 39 (line 4) to p 40 (line 4). Ms Della was not asked specifically about whether she knew Mr Choo.

[note: 35]BA 295; BA 302.

[note: 36]BA 309.

[note: 37]NE 24 April 2024 p 50 lines 4 to 10.

[note: 38]NE 24 April 2024 p 9 lines 19 to 27.

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Public Prosecutor v Siti Maryam Binte Mohamed Zubir
[2024] SGDC 260

Case Number:District Arrest Case No 906240 of 2024 and 4 Others, Magistrate's Appeals No 9179-2024-01
Decision Date:01 October 2024
Tribunal/Court:District Court
Coram: Lee Lit Cheng
Counsel Name(s): Lim Yi Neng, Ryan (Attorney-General's Chambers) for the Public Prosecutor; The Accused unrepresented.
Parties: Public Prosecutor — Siti Maryam Binte Mohamed Zubir

Criminal Procedure and Sentencing – Sentencing – Statutory offences – Section 417 Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Sentencing Advisory Panel Guidelines for Scams-Related Offences – Handing over control of bank account to others

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9179/2024/01.]

1 October 2024

District Judge Lee Lit Cheng:

Introduction

1       The 23-year-old Accused responded to a Telegram message from an unknown individual who promised her profits in exchange for opening bank accounts and relinquishing control of them. She then opened three bank accounts and handed them over to this unknown person without knowledge of their intended use.

2       Without the Accused's knowledge, those who gained control of the three bank accounts she had relinquished proceeded to open two additional bank accounts (“the two additional accounts”) using the details of the original accounts that the Accused had relinquished.

3       The Accused pleaded guilty to a charge under s 417 read with s 109 of the Penal Code 1871 (“PC”) for abetting by engaging in a conspiracy with an unknown person to cheat United Overseas Bank (“UOB”) by deceiving the bank that she would be the sole operator of the bank account that she had applied for. Four other charges were taken into consideration (“TIC”): two similar abetment of cheating charges relating to two other bank accounts and two charges under s 3(1) read with s 12(1) and s 14 of the Computer Misuse Act 1993 (“CMA”) for abetting the unknown person to secure access to her bank accounts by providing her login credentials.

4       The Prosecution submitted that the Guidelines for Scams-Related Offences published by the Sentencing Advisory Panel of Singapore in August 2024 (“the Guidelines”) provided guidance on the appropriate sentence to be imposed and sought a term of 10 to 14 months’ imprisonment.

5       I agreed with the Prosecution that the Guidelines were relevant. Drawing upon the Guidelines pertaining to cases where an offender relinquishes control of their bank account to another party without taking reasonable steps to ascertain that party’s purpose of accessing, operating or controlling the account, I sentenced the Accused to seven months’ imprisonment.

6       The two main reasons for imposing a sentence lower than that sought by the Prosecution were my disagreement with their submissions regarding: (a) the extent of the sentencing uplift for the three bank accounts that were opened and handed over by the Accused; and (b) the Prosecution’s proposal that an uplift should be made for the two additional accounts even though they were not handed over by the Accused.

7       The Prosecution, dissatisfied with the sentence, has filed an appeal.

Charges

8       The Accused opened and handed over the following three bank accounts to the unknown person:

(a)     United Overseas Bank account number ending with 963 (“UOB account”);

(b)     Commerce International Merchant Bankers Group Holdings Berhad account number ending with 185 (“CIMB account”); and

(c)     Standard Chartered Bank Limited account number ending with 627 (“SCB account”).

9       Five charges were tendered against the Accused in relation to the three bank accounts as follows (with the proceeded charge in bold):

Charge No.

Offence

Bank Account

DAC-906240-2024

s 417 r/w s 109 PC

 

UOB account

DAC-906241-2024

CIMB account

DAC-906243-2024

SCB account

DAC-906245-2024

s 3(1) r/w s 12(1) and

s 14 CMA

UOB account

DAC-906246-2024

SCB account



10     No charges were tendered against the Accused in relation to the two additional accounts opened without her knowledge:

(a)     United Overseas Bank account number ending with 867 (“the second UOB account”); and

(b)     Standard Chartered Bank Limited account number ending with 748 (“the second SCB account”).

Facts

11     In June 2023, the Accused received a Telegram message from an unknown individual who introduced himself as "Anthony". He promised the Accused an unspecified amount of investment returns and profits in exchange for opening bank accounts and relinquishing control of them. The Accused neither enquired about the intended use of these accounts nor was she aware that they would be used for illicit purposes.

12     Motivated by the promised gains from "Anthony", the Accused opened the SCB account on 30 June 2023, and the UOB account and CIMB account on 7 July 2023. In her application for the bank accounts, the Accused deceived the banks by falsely claiming that she would be the sole operator of the accounts, thereby inducing the banks to allow her to open the accounts.

13     Thereafter the Accused relinquished control of the three bank accounts to “Anthony”.

14     Unbeknownst to the Accused, the second SCB account and the second UOB account were created using her credentials on 9 and 11 July 2023, respectively.

15     A total sum of $109,655.78 flowed through all the five bank accounts as detailed below:

(a)     $26,244.52 flowed through the SCB account, of which $18,907.62 was traced to reported scam.

(b)     $58,078.06 flowed through the second SCB account, of which $47,509.46 was traced to reported scam.

(c)     $25,333.20 flowed through the UOB account, of which $25,290.50 was traced to a reported scam involving a 70-year-old victim. The victim was tricked into clicking a hyperlink in a text message, which led her to a webpage mimicking that of a restaurant. Consequently, a sum of $25,290.50 was siphoned from her bank account to the UOB account.

(d)     The second UOB account and the CIMB account were frozen before any funds could be channelled through them.

16     The Accused received no payment for the bank accounts she relinquished.

The Prosecution’s Address on Sentence

17     The Prosecution submitted that the offence of relinquishing bank accounts is a serious one which warranted a deterrent custodial sentence for the following reasons:

(a)     Persons like the Accused are “bank account money mules”[note: 1] who enable criminals including scammers to use the bank accounts handed over to facilitate their crimes or to launder their criminal proceeds.

(b)     Despite robust efforts to enhance law enforcement and educational awareness to combat scams, the number of scam cases continues to rise.

(c)     The Accused’s offences undermine Singapore’s financial system and status as a financial hub.

18     For the act of relinquishing bank accounts committed before 8 February 2024, offenders are generally charged with the following offences:

(a)     s 3(1) read with s 12 of the CMA for abetting unauthorised access of a bank account; and

(b)     s 417 of the PC, if the offender has opened a new bank account to be handed over (as opposed to relinquishing an existing account).

19     The Guidelines deal specifically with scam-related offences and considerable weight should be given to the sentencing approach posited by the Guidelines even though they relate to an offence under s 55A of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”). The Prosecution submitted that the Guidelines pertaining to relinquishing of bank accounts should be “extrapolated … to “old regime” bank account cases”[note: 2] in the following manner:

(a)     A lower starting sentence of four months’ imprisonment should be adopted instead of six months’ imprisonment recommended at [11] of the Guidelines.

(b)     The starting sentence should be adjusted upwards if the offence-specific aggravating factors set out in [13] of the Guidelines are present.

20     For the present case, the Prosecution submitted that the Guidelines should be extrapolated in the following way:

(a)     The starting sentence for DAC-906240-2024 involving the UOB bank account is four month’s imprisonment.

(b)     Uplifts should be made for the aggravating factors as follows:

(i)       An uplift of one to two months’ imprisonment should be made as the Accused opened the UOB bank account to be handed over as opposed to relinquishing an existing bank account.

(ii)       An uplift of one to two months’ imprisonment should be made as the Accused was motivated by gain.

(iii)       An uplift of half to one month’s imprisonment should be made as a vulnerable 70-year-old victim was involved.

(iv)       An uplift of one to two months’ imprisonment should be made as the UOB account “was used to open another UOB account”.[note: 3]

(v)       An uplift of six to eight months’ imprisonment should be made as two of the charges taken into consideration involved the opening and relinquishing of two more bank accounts that were also motivated by gain.

(vi)       An uplift of half to one month’s imprisonment should be made as the SCB account “was used to open another bank account without the accused’s control”.[note: 4]

21     If the Accused had claimed trial, the Prosecution submitted that the sentence would be around 14 to 20 months’ imprisonment.

22     Applying a 30% reduction in sentence for her plea of guilt, the Prosecution submitted for a sentence of 10 to 14 months’ imprisonment.

Mitigation

23     The self-represented Accused said nothing in mitigation.

My Decision

24     In determining the appropriate sentence for the present charge under s 417 of the PC, I first decided that the Guidelines for the offence under s 55A of the CDSA pertaining to relinquishing of bank accounts were relevant. Next, I applied the guidance in the Guidelines to arrive at the sentence in this case.

The Guidelines are relevant

25     Section 55A of the CDSA is one of several new offences that Parliament introduced in 2023 to combat the growing menace posed by scams. The offence came into force on 8 February 2024 and targets a critical component of the operation of scam syndicates: persons in Singapore who hand over control of their bank accounts.

26     A person who hands over control of their bank account to others may be prosecuted for the following offences:

(a)     The new offence under s 55A(1)(a) read with s 55A(1)(b)(ii) of the CDSA (“the s 55A offence”). The offence is punishable under s 55A(5) of the CDSA with a fine not exceeding $50,000 or imprisonment for a term not exceeding three years or both.

(b)     Abetting the pre-existing offence under s 3(1) of the CMA, which is punishable with a fine not exceeding $5,000 or imprisonment for a term not exceeding two years or both for the first offence.

(c)     Abetting the pre-existing offence under s 417 of the Penal Code (if the offender has opened a new bank account to be handed over) which is punishable with a fine or imprisonment for a term not exceeding three years or both.

27     The Guidelines at [8]-[22] provide guidance on sentencing for, inter alia, the s 55A offence involving an offender who enters into, or is otherwise concerned in, an arrangement by handing over control of their bank account to another without taking reasonable steps to ascertain the other person’s purpose of accessing, operating, or controlling the account. Given that the criminal acts described in [8(a)] of the Guidelines are the same as those committed by the Accused to relinquish her bank accounts, I found the Guidelines relating to the s 55A offence highly relevant in this case.

28     While the Guidelines are not binding on any court, they are helpful in providing guidance to the courts in passing sentences and are intended to promote greater consistency, transparency and public awareness in sentencing.

The Guidelines

29     The Guidelines (at [7]) recommend that custodial sentences ought to be the norm for scams-related offences and the sentences must be punitive enough and commensurate with the harm suffered by scam victims.

30     The Guidelines require the court to first identify the appropriate starting sentence for the offence. The starting sentence is then adjusted upwards based on the offence-specific aggravating factors Finally, the sentence is adjusted based on the offender-specific factors.

31     The Guidelines (at [11(a)]) recommend a starting sentence of six months’ imprisonment for an offender convicted after trial of a s 55A offence for handing over control of their bank account to another without taking reasonable steps to ascertain the other person’s purpose of accessing, operating or controlling the account in an archetypal case. An archetypal case is one with the following characteristics:

(a)     An offender hands over control of an existing bank account to another person.

(b)     The offender does so with the mental element set out in the relevant CDSA provision.

(c)     The offender hands over control of the bank account without any intention to derive a gain from his act.

(d)     The bank account is later used to receive and transfer funds which are benefits from crime.

32     Next, the Guidelines provide that the starting sentence should be adjusted upwards for the offence-specific aggravating factors in a case, including those set out in [13]-[14] of the Guidelines.

33     Finally, the sentence should be adjusted for the offender-specific sentencing factors, including relevant antecedents, early plea of guilt and other pertinent considerations.

34     If the offender has received a financial gain from their offence, the court should consider ordering an appropriate fine to disgorge such gain, in addition to imposing a custodial sentence.

Applying the Guidelines to this case

35     Given the prevalence of scam cases, general deterrence was undoubtedly the key sentencing consideration, and a custodial sentence was clearly warranted in this case.

Starting sentence

36     The Prosecution submitted that the starting sentence of six months’ imprisonment should be adjusted downwards to four months’ imprisonment for the “old regime” charges under s 3(1) of the CMA, given that the maximum imprisonment term prescribed for s 3(1) of the CMA (two years) was lower than that for the s 55A offence (three years). As the Prosecution wanted to adopt the same sentencing approach for offences under s 3(1) of the CMA and s 417 of the PC despite the maximum imprisonment term prescribed for the latter offence being three years, a lower starting sentence of four months’ imprisonment was also proposed for a charge under s 417 of the PC.

37     I was prepared to agree with the Prosecution to adopt a lower starting sentence of four months’ imprisonment for the present charge under s 417 of the PC.

38     Next, I applied sentencing uplifts for the offence-specific aggravating factors present in the case. In determining the appropriate uplifts, I had regard to the extent of the uplifts made in Illustration 1 (at [19]-[20] of the Guidelines). In the illustration, for the aggravating factors that (1) the offender had opened one new bank account to be handed over; and (2) the offender was motivated by gain to commit the offence, an upward adjustment of three months’ imprisonment was made. This works out to an average uplift of 25% of the starting sentence of six months’ imprisonment for each of the factors.

Uplift for opening a new bank account

39     The Guidelines (at [13(a)]) provide that the starting sentence should be adjusted upwards where the offender opened a new bank account to be handed over, as opposed to merely handing over control of an existing account.

40     As the Accused had opened new bank accounts instead of relinquishing existing ones, I applied an uplift of one month’s imprisonment (which is 25% of the starting sentence of four months’ imprisonment).

Uplift for being motivated by gain

41     The Guidelines (at [13(d)]) provide that the starting sentence should be adjusted upwards where the offender was motivated by gain.

42     The Accused was motivated by the promise of payment of an unspecified amount in this case. I applied an uplift of one month’s imprisonment.

Uplift for handing over more than one bank account

43     The Guidelines (at [13(b)]) provide that where an offender handed over more than one bank account, the number of bank accounts handed over should be considered in determining the extent of the sentencing uplift.

44     The Accused handed over three bank accounts in this case, two more than the account in the proceeded charge. For this factor, I applied an uplift of two months’ imprisonment (equivalent to 50% of the starting sentence).

45     The Prosecution sought an uplift of six to eight months’ imprisonment for “the opening and relinquishing of two additional bank accounts that were also motivated by gain”.[note: 5] The Prosecution proceeded on the basis that if the Accused were to be convicted of two other charges for handing over the CIMB account and SCB account, the sentence for each of those charges would be six to eight months’ imprisonment (computed based on a starting sentence of four months’ imprisonment plus uplifts for opening a new bank account and being motivated by gain). Since the charges relating to the relinquishing of the CIMB account and the SCB account were TIC, the Prosecution sought an uplift of three to four months’ imprisonment for each bank account.[note: 6]

46     In my view, the proposed uplift of six to eight months’ imprisonment (equivalent to 150-200% of the starting sentence) was excessive. An uplift had already been given for the aggravating factor that the Accused was motivated by gain (see [42]). It would be inappropriate to double or triple count this same aggravating factor for each bank account relinquished by the Accused. Based on the Prosecution’s explanation of how it arrived at the proposed uplift, it would be tantamount to proceeding on all three of the abetment of cheating charges and having the sentences for two of the charges run consecutively.

Uplift for the additional accounts not handed over by the Accused

47     Due to concerns that “there was great potential harm in the creation of another account”,[note: 7] the Prosecution also sought uplifts for the two additional accounts that were opened without the Accused’s knowledge:

(a)     an uplift of one to two months’ imprisonment for the second UOB account; and

(b)     an uplift of half to one month’s imprisonment for the second SCB account.

48     The Prosecution sought a smaller uplift for the second SCB account because it pertained to a TIC charge, whereas the second UOB account pertained to the proceeded charge.[note: 8]

49     I declined to order any uplift for the two additional accounts that were opened without the Accused’s knowledge for the reasons set out below.

50     First, the Guidelines do not provide for any uplift on this ground. The Guidelines provide for an uplift based on the number of bank accounts handed over by the offender, which does not include the number of bank accounts that may subsequently be opened without the offender’s knowledge.

51     Second, the Prosecution’s concerns about the potential harm in the creation of a bank account relate to the degree of harm. In my view, this is addressed by the Guidelines (at [13(f)]) recommending that an uplift in the sentence should be made if significant funds had been received or transferred out of the offender’s bank account. In the present case, I have given an uplift in the sentence because the total amount of funds that flowed through all five accounts (including the two additional accounts not handed over by the Accused) exceeded $100,000. I will now turn to this issue in the following section.

Uplift for significant funds flowing through all five bank accounts

52     The Guidelines (at [13(f)]) provide that a sentencing uplift of at least 25% of the starting sentence should be considered if significant funds ($100,000 or more) had been received or transferred out of the offender’s bank account, and the uplift should be commensurate with the quantum of funds involved. This is so even if the offender does not know of the extent of funds that have flowed through their bank account after it was handed over. The reasons for the uplift are as follows:

(a)     As the account holder, the offender can regain control of the account at any time. If the offender chooses not to do so, this will be at their own risk.

(b)     It would be perverse if an offender can rely on their own lapses in safeguarding their own interest and in complying with the law to reduce their blameworthiness for the offence.

(c)     It is well established that the court can consider in sentencing the foreseeable adverse effects of an offender’s crime even if they are beyond the offender’s control, especially in cases where the offender has acted negligently.

53     In the present case, the total amount of funds that flowed through all five bank accounts was $109,655.78. This included a sum of $58,078.06 which flowed through the second SCB account which was opened without the Accused’s knowledge but was made possible because she had ceded control of the SCB account. The harm that resulted from the Accused’s act of handing over three bank accounts therefore included the funds that flowed through the two additional accounts even though they were opened without her knowledge and control.

54     For this reason, I applied an uplift of one month’s imprisonment (equivalent to 25% of the starting sentence).

Uplift for vulnerable victim of scam

55     The Guidelines (at [14]) provide that a sentencing uplift should be imposed in cases where the funds flowing through the account are linked to a scam victim who is a vulnerable person, which includes a person of or above 65 years of age. The Guidelines further specify that the uplift should be at least 25% of the starting sentence even if vulnerable persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected.

56     In the present case, a 70-year-old victim of scam was affected. The vulnerable person had deposited a sum of $25,290.50 into the UOB account. For this reason, I applied an uplift of one month’s imprisonment (equivalent to 25% of the starting sentence).

57     The total imprisonment term if the Accused had claimed trial was 10 months’ imprisonment.

Offender-specific factors

58     In the final step, I considered the offender-specific factors. There were no offender-specific aggravating factors as the Accused was untraced and the facts relevant to the TIC charges had already been considered.

59     On account of the Accused’s early plea of guilt in Stage 1, I applied a 30% reduction in sentence and sentenced her to seven months’ imprisonment.

Disgorgement fine

60     As the Accused did not receive any payment for relinquishing her bank accounts, no fine was ordered in this case.

Conclusion

61     The alarming prevalence of scam cases have become a major and fast-growing concern, and there is a clear need to take firm action against those who facilitate the receiving and laundering of crime proceeds by scammers by handing over control of their bank accounts. Nevertheless, in imposing the uplifts recommended by the Guidelines, the court must be judicious in ensuring that that final sentence is not excessive and disproportionate to the offence.

62     All things considered, I was of view that the sentence of seven months imprisonment imposed in this case was commensurate with the Accused’s culpability and the harm occasioned by her criminal conduct.

 

[note: 1]Prosecution’s Sentencing Position (“PSP”), [5(a)].

[note: 2]PSP, [12].

[note: 3]PSP, [13(d)].

[note: 4]PSP, [13(f)].

[note: 5]PSP, [13(e)].

[note: 6]Notes of Evidence (“NE”), 17 September 2024, 6/16-7/16.

[note: 7]PSP, [13(d)].

[note: 8]NE, 17 September 2024, 7/17-8/15.

"},{"tags":["Criminal Law – offences – voyeurism under section 509, Penal Code"],"date":"2024-09-30","court":"Magistrate's Court","case-number":"Magistrate Case Notice No 901542-2020, Magistrate's Appeal No 9026-2024-01","title":"Public Prosecutor v Wang Panlong","citation":"[2024] SGMC 69","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32244-SSP.xml","counsel":["Deputy Public Prosecutor Michelle Tay (Attorney-General's Chambers) for the Public Prosecutor","Chen Kok Siang Joseph (Joseph Chen & CO) for the accused."],"timestamp":"2024-10-05T16:00:00Z[GMT]","coram":"Eugene Teo Weng Kuan","html":"Public Prosecutor v Wang Panlong

Public Prosecutor v Wang Panlong
[2024] SGMC 69

Case Number:Magistrate Case Notice No 901542-2020, Magistrate's Appeal No 9026-2024-01
Decision Date:30 September 2024
Tribunal/Court:Magistrate's Court
Coram: Eugene Teo Weng Kuan
Counsel Name(s): Deputy Public Prosecutor Michelle Tay (Attorney-General's Chambers) for the Public Prosecutor; Chen Kok Siang Joseph (Joseph Chen & CO) for the accused.
Parties: Public Prosecutor — Wang Panlong

Criminal Law – offences – voyeurism under section 509, Penal Code

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9026/2024/01.]

30 September 2024

District Judge Eugene Teo Weng Kuan:

1       Mr Wang Panlong (36 year old, China National) was charged with having insulted the modesty of V by having used his handphone to intrude upon the privacy of V by taking a photograph of her when she was naked and showering privately in the bathroom. Mr Wang claimed trial to that charge and was tried before me. After reviewing all the evidence presented, I found the charge amply proven beyond a reasonable doubt; Mr Wang was accordingly found guilty and convicted on the charge. After reviewing the mitigation and the sentencing submissions, I imposed a sentence of 12 weeks’ imprisonment for his offence. These are the grounds for my decision on his conviction and sentence. I start by first setting out the undisputed background facts.

Undisputed Background Facts to the Charge:

2       At the material time, V was 18 years old. Also originally from China, V was then in Singapore under a student pass. She stayed and had control over an apartment at Geylang (“the apartment”) where she also rented out some of the spare rooms. Mr Wang was one of those who approached her to rent a room for himself there. They came to a rental agreement and he moved into the apartment on 1st August 2019. Mr Wang, hereafter referred to as the accused, was then working in Singapore as a chef.

3       The material events took place about a week later on 9th August 2019. It was just past midnight when V went to the common bathroom to shower. Though she closed the bathroom door, a sizeable open ventilation gap remained above the bathroom door. Whilst V was showering, she saw a handphone positioned at that said gap with the camera lens units pointed at her. She was then naked. She dressed quickly so as to confront the person who was using that handphone, and when she opened the bathroom door, she saw only the accused at that area with his handphone. A confrontation ensued, and it was not disputed that the accused ultimately handed over his handphone to V for her inspection. It was also not disputed that V then found in the gallery of the accused’s handphone a recently taken image which she took objection to. Another confrontation ensued over that, and it was not disputed that the accused was asked by V to delete that image, and he did so.[note: 1] A short while later, V followed up by sending this stern text to the accused:

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”[note: 2]

4       Later that same day, V went to the police and reported the incident against the accused. As it turned out, Mr Wang did not return to the apartment that day. When he finally did return some three days later, the police arrived there, introduced themselves and informed him about their investigations and seized his black Oppo handphone (“the subject handphone”). The accused was then asked to pack his belongings and move out. A few days later, the accused attempted to leave the jurisdiction but was prevented by officers at the border.

5       When the authorities sent the subject handphone for a forensic data examination, a thumbnail index image of a deleted photo was found in the handphone and that thumbnail image showed V showering naked in the bathroom, an image which was taken from a position outside the bathroom at the open ventilation gap above the bathroom door at the material date and time (Exhibit P12: “the offending image”). After reviewing the evidence uncovered, the authorities then charged the accused in court.

The S.509 Charge & the Issues in Contention:

6       The charge against the accused read:

are charged that you, on 9 August 2019, at about 12.15 am at [address redacted] Singapore, did intrude upon the privacy of a woman, one V [name redacted] (Female, then 18 years old), to wit, by positioning your black OPPO mobile phone over the bathroom door, to take a photograph of V while she was naked in the bathroom, intending to insult her modesty, and you have thereby committed an offence punishable under section 509 of the Penal Code, Chapter 224.

7       For the most part of these legal proceedings, the accused was represented by learned counsel Mr Joseph Chen.[note: 3] The defence took various positions at different points of the proceedings (more said on that later), but the most coherent version of the Defence Case which could be pieced together was as follows: that the accused did not deliberately set out to intrude upon V’s privacy whilst she was showering. The defence asserted that there was an on-going dispute between the accused and V over noise at the apartment, and that the accused was outside the bathroom with the subject handphone because he had again been disturbed by the noise of loud music coming from the bathroom and he had wanted to use the subject handphone to record those loud music noises as evidence to confront V over the issue. The defence explained that the accused had inadvertently activated his camera function on the subject handphone instead. The defence asserted that only a very dark and blur image was taken by the accused in that inadvertence, and that the offending image was not taken by him. No coherent explanation was however offered as to why the offending image was found in his subject handphone. Given the explicit nature of the offending image itself, the defence conceded that it clearly amounted to an intrusion upon V’s privacy and was insulting to her modesty. The issues which the trial had to resolve were therefore factual:

-     Whether the accused had taken the offending image of V?

-     Whether the accused had done so intentionally?

8       I now set out the evidence presented before me on these issues.

The Prosecution’s Evidence:

9       The prosecution’s evidence on those issues comprised the following:

a.     The testimony of V on what she saw of the handphone above the bathroom door that night;

b.     The testimony of V on how the accused responded to her when she confronted him outside the bathroom;

c.     The testimony of V on the accused’s subsequent actions in the days following her police report against him; testimony which was backed up by consistent text messages exchanged during that period; and

d.     The evidence uncovered during the investigations from the subject handphone seized from the accused.

10     The prosecution contended that all those aspects showed that the accused was clearly guilty of having taken the offending image, and that he did so intentionally.

-   V – ALLEGED VICTIM – PW8

11     V was 22 years old by the time she testified before me and had already started work in Singapore.[note: 4] She confirmed that she was 18 years old at the time of the incident and was studying at one of the local polytechnics then. Up till that point, she had already been studying in various mainstream schools in Singapore for over 10 years.[note: 5] She testified comfortably before me in English.

12     Regarding the apartment where the incident took place, V explained that she was in the position of a master tenant. The apartment had been divided into 6 bedrooms and there was a singular common bathroom – the one where the incident took place – and another separate common toilet just next to it (Exhibit P17 contains 17 photos showing the layout of the relevant areas in the apartment). V had one bedroom for herself, and she had about 6 or 7 tenants in the other rooms during the material period, and the accused was one of them. V explained that the accused had initially come to view the apartment with his wife, but that his wife later went back to Malaysia and the accused had moved in on 1st August 2019 with his nephew instead.[note: 6]

13     Turning to the incident night on 9th August 2019, V testified that she went to the common bathroom to shower just past mid-night. Whilst undressed and showering privately, she turned to her side and saw a handphone camera lens pointed at her through the open ventilation gap above the bathroom door. She estimated that it was at about 12.20 am, and she could make out that the handphone was dark in colour. She said she saw the handphone being held steady in that position and that the camera lens units were pointed at her.[note: 7] Though shocked, she dressed quickly and opened the door and saw only the accused in that area with his handphone.[note: 8] She confronted him and said that she saw him taking photos of her, but the accused denied it.[note: 9] She then demanded to check his handphone, and the accused duly handed it to her. Upon checking the gallery, she saw a few images of her naked self showering in the bathroom. V candidly stated that she could not confirm if the offending image in P12 was one of the thumbnail images in the gallery that she saw that night and explained that she was actually still in shock and was feeling scared at that point and that she did not tap on the individual thumbnail images to launch and examine their full-sized versions, but she could nonetheless recognize herself and the bathroom depicted in those thumbnail images.[note: 10] Further, given where those thumbnail images were located in the gallery, she could tell that they had just been taken.[note: 11] She then demanded that they be deleted, and the accused simply nodded his head and walked away with his handphone. After recovering a little from the shock and fear she felt, V exited the apartment and called her friend to relate what just happened to her. V explained that all the other occupants in the apartment were already asleep at that time, and she did not want to immediately remain in the apartment where the accused was as she was still fearful for her safety. After a while, she re-entered the apartment and retreated to her room and sent the following sternly worded Whatsapp text at 12.59 am to the accused (Exhibit P9, and its translated copy at Exhibit P11):

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”

14     V explained that she sent that text as she was worried that those images of her would leak out to others.[note: 12] When she woke later that morning, she checked her Whatsapp and saw a reply message sent at 7.09 am from the accused to her; one which he had then proceeded to delete soon after, before she had managed to read it. As a result, she did not know what that reply text from him was about.

15     Later that same day, V went to the police to lodge a report against the accused over the incident (Exhibit P14). After doing so, she returned home under instructions from the police to contact them once she saw the accused return there.

16     At 11.18 pm that same day, V sent the accused the following Whatsapp text:

“You just move out tomorrow, I will refund to you the money for Sunday and Monday.”[note: 13]

17     V explained that she sent that text as she was concerned over her safety and did not know what else the accused might go on to do after having already intruded on her privacy in that manner.[note: 14] V therefore wanted him to move out early. The text was phrased in that manner because there was a pre-existing agreement reached between them for the accused to end his tenancy early and for the rental payable to be deducted from the deposit instead. The accused made no response to her text. As it turned out, the accused also did not return to the apartment that night, nor for the next few consecutive days.[note: 15]

18     Three days later on the 12th August 2019, the accused finally returned to the apartment and V duly informed the police. When the police arrived there a while later, they questioned him about the incident. V observed that ‘he denied and was too nervous till he can’t even speak’.[note: 16] The police then seized the subject handphone from the accused, supervised him gathering the rest of his belongings and moving out from the apartment.

19     About a week later on 20th August 2019, V said she received a telephone call from the accused who told her that the police had informed him ‘to communicate with her to resolve the issue privately’.[note: 17] In essence, V understood that the accused was offering to pay her some money to cancel the police report against him. V refused. A short while after the call ended, the accused suddenly appeared at the apartment and came in, and V again retreated to her room. The accused then knocked on her room door and asked her to come out to talk to him to resolve the matter privately, but V again refused and asked him to leave the apartment instead. The accused eventually did.

20     Later that same day, V received a series of WhatsApp text messages from a person who claimed to be the wife of the accused (Exhibit P8 and its translated copy at Exhibit P10).[note: 18] In gist, the person sought pity for Mr Wang and their family, and offered a private resolution to the police case with a compensation offer. V again refused.

21     V later went to the police to verify whether they had indeed told the accused to contact her directly to resolve the matter privately, and she discovered that the police had actually not told the accused any such thing.[note: 19]

22     When V was cross-examined on her account above, she remained consistent and coherent in her testimony throughout. The accused took the following opposing positions in cross-examining her (in chronological order), and V refuted them:

-    That V was playing music loudly whilst she showered.[note: 20]

-    That he was disturbed by the loud music, and had used his handphone to record the noise as evidence, but had accidentally activated the video record button instead.[note: 21] The accused explained that he needed evidence as V had represented that the apartment was quiet, and the evidence was needed to bolster his position in retrieving back his rental deposit in the event of him terminating the lease early due to the noise.[note: 22]

-    That it was not possible for V to have seen his handphone positioned steady at the open ventilation gap above the bathroom door, and that his handphone had at most only ‘waved past that gap when he slipped due to the slippery floor at that area’.[note: 23]

-    That V only found ‘one dark and blurry photo’ when she inspected his subject handphone, and which she requested him to delete, and which he had complied with immediately.[note: 24]

-    That V later came to confront him at his room together with another male tenant (unidentified) to demand that he move out immediately that very night.[note: 25]

23     V refuted all those defence positions, and consistently explained that whilst she was playing music whilst showering, it was not at a loud volume. Further, that she had already agreed to the request from the accused to terminate his tenancy early and return the balance of his security deposit as he was unhappy over the loud snoring sounds made by another tenant at the property, which agreement was arrived at and communicated to him before that incident night; this therefore meant that there was absolutely no reason for him to have been wielding his handphone to gather any supposed evidence about noise outside the toilet whilst she was showering that night.

-   MS KOH LING XIN – DIGITAL FORENSIC EXAMINER, CID – PW1

24     On 6th January 2020, Ms Koh performed the digital examination of the subject handphone which was seized by the police on the 12th of August 2019 from the accused.[note: 26] The various documents setting out the exhibit handling trail of the subject handphone took up Exhibits P2 to P5, with Exhibit P1 being the ultimate report which Ms Koh prepared as evidence to set out her digital forensic findings on the relevant contents found in the subject handphone. Before this court, Ms Koh described the process in which the subject handphone was retrieved and forensically examined, the software used, and the findings in terms of all the data which was residing in the subject handphone and its connected memory card.[note: 27] An appointment with the IO was then scheduled on 30th January 2020 to review all the forensic findings together, and only the data which was found to be relevant to the present case was then copied out from the subject handphone; this consisted of (1) the WhatsApp chatlog from the period 2nd – 9th August 2019 between the accused and V (Exhibit P6 and its translated copy at Exhibit P7) and (2) the offending image itself (P12).

-   The Difference in the Whatsapp Chatlogs:

25     There was one notable difference between the WhatsApp chatlog retrieved from the phone of the accused (P6 & P7) and the corresponding WhatsApp chatlog retrieved from V’s phone (P9 & P11). The version retrieved from the subject handphone of the accused was missing one singular message: the stern text which V sent to him soon after the incident at 12.59 am on the 9th August 2019:

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”[note: 28]

26     The rest of the chatlog before and after that particular message was identical. It was beyond argument that WhatsApp had the functionality to allow a user to delete a received message in their own chatlog, and it was the prosecution’s case that the accused had manipulated his WhatsApp chatlog by deliberately deleting that singular stern message from V as it was incriminating against him.[note: 29]

-   The Data Properties of the Offending Image:

27     Next, Ms Koh explained that the path location where the offending image was found, i.e. the default Digital Camera Image (“DCIM”) thumbnail index path (Exhibit P13), indicated that the offending image was a system generated smaller sized version of a photo which had been taken by the camera of the subject handphone. Such thumbnail copies are automatically generated to serve as quick reference displays in the gallery index for their respective full-sized versions.[note: 30] The corresponding full-sized image was however not found on the subject handphone. Ms Koh explained that the thumbnail versions were separate image files from their respective full-sized versions; therefore, whilst a user may delete the full-sized version, the thumbnail copy may still be present because the thumbnail copy was a separate image file with its own distinct data storage path.[note: 31] Ms Koh also explained that the data storage path indicated that the offending image was created on 9th August 2019 at 00.15 hrs – which notably coincided exactly with the testimony of V about what she saw of the handphone being pointed at her whilst she was showering in the bathroom that night.

28     When Ms Koh was cross-examined on her findings, the defence pursued a position which was ultimately abandoned, i.e. that the offending image was a thumbnail of an image received over WhatsApp instead and not of a photo taken by the camera function in the handphone.[note: 32] Given that this position was ultimately abandoned by the defence, was unsupported by any corresponding entry in any WhatsApp chatlog, and was squarely contradicted by the evidence in Exhibit P13 itself regarding the storage data path of the offending image as being in the DCIM thumbnail section and its creation date & time, there was really no basis to question any of the evidence offered up by Ms Koh, and their implications against the accused.

-   INSP ANGIE KHOO MUN YEE – 1st IO – PW2

29     Ms Khoo was the initial IO for this case. After the Police Report by V (P14) was assigned to her for follow-up, she visited the apartment the next day on the 10th August 2019 and spoke with V about her complaint. She left instructions with V to notify her once the accused returned to the apartment.

30     Ms Khoo was so notified two days later on the 12th August 2019 when the accused finally returned to the apartment. When Ms Khoo arrived there with her colleagues, they identified themselves to the accused and explained that they were investigating V’s complaint against him; in response, the accused denied filming V in the shower.[note: 33] The officers searched for his electronic devices, and the accused surrendered up the black Oppo handphone and explained that it was the one he was using at that time (“the subject handphone”). The photos and videos on the handphone were reviewed in the presence of the accused. Though nothing incriminating was found at that point, the officers explained that the subject handphone needed to be seized for further investigations (seizure report in Exhibit P15 and the accompanying acknowledgement form in Exhibit P16). According to protocol, the subject handphone was switched to “airplane mode” before being powered down.[note: 34] Ms Khoo then confirmed that the subject handphone was subsequently sent for digital forensic examination by Ms Koh (PW2), and that the manipulated WhatsApp chatlog and the offending image were discovered on it in that manner.

-   Attempted Departure on 19th August 2019 in midst of Investigations.

31     Ms Khoo said the accused “was not very cooperative and forthcoming” in his responses when they were questioning him at the apartment on the 12th August 2019.[note: 35] When asked to surrender up his passport, Mr Wang had claimed that he did not have his passport and that it was ‘being held by his employer’. Ms Khoo then told him that he was not allowed to travel out of Singapore during the investigations, and she proceeded to place him on the Stop List when she got back to her office.[note: 36] A few days later on the 19th August 2019, Ms Khoo was notified by her Immigration counterparts that the accused was detected at the Woodlands checkpoint trying to leave the country. Ms Khoo informed her counterparts not to allow Mr Wang’s departure and to instruct him to report to her the next day instead. When the accused turned up before her the next day, Ms Khoo asked about his attempted departure from jurisdiction, and the accused explained that he was simply accompanying a sick friend to see a doctor in Johor Bahru.

-   The Varied Defence Positions.

32     Ms Khoo subsequently recorded three statements from the accused (Exhibits P18, P19 and P20) where the following varied positions were taken by the accused in response to the complaint against him:

-     Complete Denial in P18[note: 37]: that he was not even at the apartment at that time on that day, and that there was no confrontation between V and him, and that there were no offending images in his subject handphone of her showering[note: 38];

-     Accidental Actions in P19[note: 39]: This second statement came about when the accused volunteered to provide details after supposedly remembering them. Contrary to what he stated earlier in P18, he now admitted that he was actually at the apartment at that time on that night. He explained that he had been out drinking earlier that night, and that he heard loud music coming from the common bathroom when he returned to the apartment. He knew someone was showering inside and he wanted to record the loud music as evidence to show the landlord. He explained that he did not know if he did an audio recording or if he took photos as he was intoxicated. He acknowledged that the person inside the bathroom did suddenly come out to confront him and claimed that it was only at that point that he realized it was V who had been inside. When V demanded to inspect his handphone, he complied and said it was only when V saw the gallery that he realized he had taken a photo instead of an audio recording. V then asked him to delete it and he complied.[note: 40] When asked how he intended to take an audio recording on his handphone, Mr Wang said it was through the WeChat application which had an audio recording function.[note: 41]

-     Back to Denial in P20[note: 42]: when Mr Wang was asked to account for the offending image found after the forensic examination on his subject handphone was completed, he simply said it was “impossible” repeatedly.[note: 43]

33     When the IO was cross-examined, the defence suggested that the offending image came to be on Mr Wang’s handphone because it had been shared between V and him via WhatsApp after the incident.[note: 44] This was however subsequently deleted, and that is why the chatlog shows that there was a deleted message between them. This defence suggestion appeared to be following the IO’s own initial misunderstanding of the forensic data findings.[note: 45] When the IO realized her own misunderstanding, she confirmed that the offending image did not come to be on Mr Wang’s subject handphone through WhatsApp.[note: 46] This defence suggestion was also subsequently abandoned, and nothing further need be said on it at this point save that this was yet another instance of the varied positions taken by the defence at the various stages of this case.

34     The other positions which the defence put to the IO were all refuted by her:

-    That she did not ask Mr Wang on the 12th August 2019 to surrender his passport;

-    That she did not tell Mr Wang on the 12th August 2019 that he could not leave the country as investigations were on-going;

-    That she did not tell Mr Wang on the 12th August 2019 what kind of case they were investigating against him;

-    That she had instead given Mr Wang the impression that the case they were looking into was minor and usually resulted in a fine or a warning;

-    That Mr Wang did not tell her on the 12th August 2019 that his passport was with his employer, and had stated instead that he wanted to check with his employer whether his passport was with them;

-    That Mr Wang did not deny being present in his first statement P18, but was simply stating that he was not sure if he was at the apartment at that time;

-    That the handphone which V saw above the bathroom door belonged to another person and not the accused, that V provided no description of the handphone she saw above the bathroom door, that Mr Wang was not tall enough to reach the gap above the bathroom door; that V’s stern WhatsApp text to Mr Wang actually referred to some other photo and not the one taken by the handphone she saw above the bathroom door.

35     The IO confirmed that Mr Wang was taller than her. At 1.65m herself, the IO confirmed that she was already able to reach the open ventilation gap above the bathroom door just by raising up her arm and reasoned that it would have been even easier for Mr Wang since he was taller than her.[note: 47]

-   SGT TOK RU JIE – CAUTIONED STATEMENT RECORDER – PW3

36     After the police firmed up the charge against the accused, Sgt Tok was assigned to record his cautioned statement (Exhibit P21 recorded on 14th September 2020). In response to the charge that he had intentionally insulted the modesty of V by taking the offending image of her whilst she was showering naked, the accused stated:

“This is wrong. I deleted it immediately. I did this for a reason.”

-   INSP AMANDA LIM PEI XUAN – 2ND IO AFTER PW2 - PW5

-   SGT TAN TUAN HOK – CURRENT IO - PW4

37     Both Insp Lim and Sgt Tan were called as witnesses to set the stage for the admission of V’s statements as evidence under section 32 of the Evidence Act. That was deemed necessary by the Prosecution because after the incident took place in March 2019, the COVID pandemic hit a few months later and V opted to be with her family in China during that period. V later encountered travel difficulties coming back to Singapore to testify due to the many pandemic restrictions on cross-border movement, and the Prosecution opted for her statements to be introduced as evidence when the date of her return to jurisdiction could not be confirmed. As it turned out, when the trial dates were eventually fixed, V managed to return to Singapore during the later tranches and testified as set out earlier; and with that, the application for her statements to be relied upon was then withdrawn by the Prosecution.[note: 48] Some of the initial positions taken by the defence with the first few prosecution witnesses were also abandoned when that happened. For those reasons, the evidence from these two witnesses about all the initial difficulties encountered in securing V’s attendance as a witness need not be recounted further.

Close of the Prosecution’s Case:

38     At the end of the prosecution’s case, the defence indicated that submissions would not be made. My own review found that there was some evidence which was not inherently incredible to support each and every element of the charge. The standard allocution was thus rendered to the accused and his defence to the charge was called. The accused elected to testify, and was the only witness for the defence.

The Defence’s Evidence:

39     The accused testified that he moved into the apartment on 1st August 2019 but said he did not go back there to stay every night.

-   His Version of the Incident:

40     He confirmed that he was at the apartment just past mid-night on 9th August 2019, having just returned from work. He said he heard loud music coming from the common bathroom and that it was very noisy. He heard someone showering inside but did not know who it was.[note: 49] After putting his bag down in his room and changing to slippers, he went to use the toilet. Whilst in the toilet, he decided to use his handphone “to record the noise to show to the landlord”, V.[note: 50] He said the voice recording app was near to the video recording app on his handphone, and that he accidentally tapped on the latter instead and did not check. After doing so, he came out from the toilet, raised his arm up with the handphone as he walked past the common bathroom door but slipped and fell to the floor as there was water on the floor at that area.

41     When learned counsel asked him to confirm whether he slipped at that area when he walked past there earlier to get to the toilet, the accused said he did not as the water on the floor was just “a small pool”, and later, the accused also added that he had washed his feet as well whilst he was in the toilet, and that his slippers became wet and slippery as a result.[note: 51]

42     The accused then continued and said that his handphone fell from his hand when he slipped. He then picked up the handphone, got up from the floor, and that was when V opened the common bathroom door and found him there. The accused surmised that she had heard him fall as he had hit something and made a noise when he slipped. The accused said V was dressed in her pyjamas, and he said it was only at that point that he realized it was her who was playing the music loudly. When V asked what he was doing there with his handphone, the accused responded that he was “not doing anything”.[note: 52] V then requested to see his handphone and he complied. V then checked and found a dark recently taken photo and asked him what it was. The accused said that the photo was so dark that it did not even have the image of V on it, and he replied that he did not know what that photo was. When V next asked him to delete it, he duly complied in her presence.[note: 53] Both of them then returned to their respective rooms.

43     The accused explained that he wanted to record evidence of the loud music noise because he wanted to move out of the apartment and end his tenancy early because the apartment was too noisy for his liking. He said that he had specifically asked V before moving in whether the apartment was noisy, and V had said it was very quiet. When it turned out that there were actually other noisy tenants, plus this noisy music, he wanted to have evidence of the noise to show V so as to bolster his case for the early tenancy termination and secure the return of his deposit. He explained that he was in that exact same situation in the previous rental property where he ended the tenancy early due to the noisy environment but had his security deposit forfeited when he did not have any evidence of the noise to justify his early termination.[note: 54]

44     Returning to the incident night, the accused said that after 5 to 10 minutes of him going back to his room, he heard someone knock loudly on his bedroom door. When he opened his door, he saw it was the male tenant from the next room together with V. The male tenant then asked him to move out immediately. The accused responded that it was so late already and asked them in return ‘where was he to go?’ The accused did not say how that exchange ended, but explained instead that over the next few days, he had no time to look for another property as he was busy at work.[note: 55] He however returned to the apartment on 12th August 2019 to retrieve his belongings, and that was when the police arrived there to question him.

-   The HP seizure and events on 12th August 2019.

45     The accused confirmed that V was present there with the police, and that the police did check with her which handphone of his to seize. Though there was some initial confusion on the correct handphone to be seized, the accused confirmed that the subject handphone which was ultimately seized by the police was the same one he had described using during the material period.[note: 56] The accused said he confronted V by stating “so you have to call the police just because of the deposit issue?” and V made no response to that.[note: 57] The accused then turned to the police and asked “It’s so serious?” and the police responded “It’s nothing serious, at most you will receive a warning.”.[note: 58] The police then left, and he also packed up and left the apartment.

46     When asked by learned counsel to clarify whether the IO (PW2) had told him why they were seizing his handphone, the accused answered that the IO simply said that ‘somebody had made a police report that someone has taken some pictures’ and they needed his handphone for investigation; the IO did not however say who made the complaint and who had taken the pictures.[note: 59] The accused confirmed though that the IO did check through the gallery on his handphone before seizing it, and the IO did not find anything of interest or highlight any image to him on that day.[note: 60]

-   The Subsequent Investigations:

47     Sometime later, when the IO recorded his statement and showed him the offending image which had been found on his seized subject handphone, the accused said he was very shocked and explained to the IO that he had never seen the offending image before. The accused said he was not challenging the forensic data examination findings in relation to the technical properties of the offending image, but simply maintained that he did not know where and how that offending image came to be on his handphone.[note: 61]

48     When asked by his own learned counsel if he had anything else to explain about the offending image, the accused contradicted his earlier position and said that the police did find a black image on his handphone during the session on 12th August 2019 and had asked him about it in the presence of V, and he had recounted what happened in response.[note: 62] The accused went on to maintain in the end that he had never seen the offending image P12 before, and declared that it was “impossible” for it to have been found on his seized subject handphone. The accused then concluded his defence account on that note. Nothing was offered on why he had deleted the stern WhatsApp text from V from his own chatlog, or on his subsequent conduct.

49     That defence account, with all its contradictions and coherence issues – more said on that later – was skillfully dismantled by the learned DPP in a systematic cross-examination, and the Notes of Evidence captures the accused going from his gleefully glib responses at the start, to ultimately ending in him floundering and continuously resorting to the refrain that he either did not understand the DPP, was confused by her questions and/or when he gave his earlier answers, or simply could not now remember the events, and requesting for leave to refer to notes to explain what allegedly happened as otherwise he could not remember those positions without referring to that script, and ending with the plea that life has not been and is not easy for a low wage migrant worker like him and that he seeks fairness and justice from the court as a result.[note: 63]

Findings on the Evidence:

50     It bears repeating that the sole matters of relevance which this court had to resolve was whether the accused had taken the offending image of V, and whether he had done so intentionally. In that regard, I found that the following evidence presented before me indicated beyond all reasonable doubt that he did.

-   V was a credible and reliable witness of truth:

51     I found V a competent and entirely credible witness as to what happened at the apartment that night and in the days following. An objective review of her account will indicate that it was clear, chronologically complete, internally and externally coherent against the undisputed background facts and the other objective evidence, and that it remained consistent under questioning. The easy and composed manner in which she was able to respond to learned counsel’s cross-examination and offer up further context appropriate and coherent details indicated an assuring depth to her testimony and that her ready responses were born of actual events which happened to her that night and which she was now being asked to recount. In particular, I noted that V was also candid in conceding that she could not tell for certain whether the offending image in P12 was actually one of those which she saw that night in the gallery of the subject handphone, and she offered up a cogent reason why she could not be certain, i.e. that she was still in shock and was also fearful even as she was confronting the accused. Given the difference between their ages at that point, plus the early hour when that confrontation took place when no one else was likely to be still awake, I found that explanation to be perfectly reasonable. I noted that V could have easily overstated her testimony and claimed to be certain on that aspect since it was clearly one of the material points of evidence against the accused, but the manner in which she ultimately offered her testimony bolstered my assessment that this was an entirely reliable and credible witness of truth who was striving to be as objectively accurate and factual as possible in her testimony to the court.

-   V’s testimony was materially corroborated by other objective evidence:

52     I also found that V’s testimony was materially corroborated by the objective evidence before the court. The most pertinent of which was the fact that the offending image in P12 was found in the subject handphone seized from the accused. Before me, the evidence of the digital forensic examiner Ms Koh Ling Xin (PW1) regarding the technical data properties of the offending image remained unchallenged by the defence, although the accused contradictorily maintained that it was ‘impossible’ for the offending image to have been found on his subject handphone but he had no explanation as to how it got there. I was unable to accept that contradictory position since it was plainly incoherent and also unsupported by any evidence. I found the evidence from Ms Koh to be instead objective, persuasive and reliable, and it thus indicated beyond all doubt that the user of the subject handphone had activated the camera function to take at least that one compromising photo of V at the material date and time. In the proceedings before me, it was also not disputed by the defence that the subject handphone was only ever used by the accused during the material period. The accused himself stated as much to Insp Khoo (PW2) on the 12th August 2019 when he surrendered it up, and repeated this same position when he took the stand. Taken together, all this therefore powerfully corroborated the account from V, and showed that the subject handphone was the one which she saw positioned steady above the bathroom door at the open ventilation gap with the camera lens units pointed at her whilst she was showering, and that it was the accused who was so doing, and that he had – as seen from the clear details captured in the offending image itself that an exposure setting capable of recording details at ambient lighting without the use of the flash – held it steady in that position in order to take that compromising photo of her. In my judgment, all this was sufficient to safely record the conviction of the accused on the charge.

53     I go further to make some connected observations on the evidence from Ms Koh. To recap, Ms Koh stated that the technical data properties of the offending image showed that it was a system generated thumbnail copy of a photo taken by the user, and that whilst a user may delete the original photo, the thumbnail copy may still remain as it is a separate image file with its own distinct data storage path. Since the corresponding original photo was not found, it indicated that it had likely been deleted by the user. To some, this may raise queries which require attention before comfortably arriving at a conclusion. For instance, is it coherent that the accused was seemingly careful enough to delete the original photo but had failed to take the same care to also delete the corresponding thumbnail copy? Further, is it then coherent that only one offending thumbnail image was found when V stated that she saw “a few images” of her naked self in the gallery of the handphone? In my judgment, those queries require needless speculation, and there was no basis to ascribe any particular care or technical knowledge to the accused as to how familiar he was with the system workings and storage places of his handphone when that was not even canvassed in the defence’s own case, and there was also no basis to conclude that the “few images” which V saw in the gallery were all photo files. I think the proper way to approach those aspects is to instead recognize and acknowledge what the evidence itself incontrovertibly establishes, and then assess if it still permits any interpretation which solely indicates the lack of guilt by the accused. When so assessed, it is clear that the evidence does not permit any such interpretation.

54     Next, I found that the evidence surrounding the WhatsApp chat between the accused and V also offered further material support to V’s account. The sternly worded text she sent to the accused (as shown in P9 and P11) shortly after she confronted him that night was wholly consistent with her account as to his objectionable conduct earlier, and it indicated no other possibility than him having just taken compromising image/s of her which she did not consent to and which she wanted deleted absolutely. The accused notably made no response to that message even though its damning implication was obvious. The fact that he chose to delete that singular stern text message instead (as shown in P6 and P7) indicated that its damning implication was also not lost on him. In my judgment, those actions in that context indicated that he had acted with a guilty mind at all material times and that he did not want his actions of that night to remain plainly on record and that he wanted it all to remain hidden. It was similarly telling when the accused blithely ignored this aspect of the evidence and made absolutely no attempt to address it in his defence. It therefore remained unchallenged before me.

-   The Other Evidence:

55     Apart from V’s credible and corroborated testimony, the prosecution also referred to the other evidence which it contended indicated that the accused had acted with a guilty mind. These included (1) his not returning to the apartment after the incident, (2) his being taciturn with the police upon their arrival on 12th August 2019, (3) his trying to leave the jurisdiction soon after, (4) his offering differing and contradictory accounts in his statements to the police, and (5) his desperately seeking a private resolution with V of her police complaint against him. Reviewed objectively, though they did appear suspicious, I did not find them to be of such a character that they permitted a solely incriminating interpretation and they did not feature in my decision to convict as a result.

56     Before rounding up to state my conclusions on the evidence in support of the charge, I turn to address the two defence submissions on this area and explain why I found them flawed and could not be accepted.

57      That V was a biased witness. [note: 64] To recap, the allegation of bias as explained by the accused was that V was upset with him because he wanted to terminate his tenancy prematurely as he was unhappy with the noisy environment at the apartment, so upset that she made up this spurious complaint against him as part of a devious plan to forfeit his tenancy deposit. Apart from his own bare assertions, there was however no evidence to support that allegation; no evidence of V being in any way upset, or that his tenancy deposit was even worth forfeiting. In fact, the undisputed objective evidence showed otherwise. By that, I refer to the WhatsApp chatlog between the accused and V (P6 and P7). That chatlog showed that the accused raised his noise complaint to V just three days after moving in, and that he requested to terminate his tenancy early as a result.[note: 65] In response, V readily acceded to his request.[note: 66] There was no hint whatsoever that she was upset with the accused, and she was even prepared to grant him whatever time he needed to arrange for new accommodation.[note: 67] As the days passed with no apparent developments with his exit plans, V then pointed out that the tenancy deposit she was then holding was now not even enough to cover the rental which was owing since day one, and she readily offered up a solution; all this indicated that she continued to take a very reasonable and facilitative stance to his exit request.[note: 68] This plain interpretation of the WhatsApp chatlog messages was not challenged, and it showed that the bare assertions by the accused were themselves spurious and had no evidential basis. In the end, after reviewing this defence submission, I found it evidentially flawed and could not be accepted.

58      That the evidence of Ms Koh and her CCRT report are unreliable and speculative because the accused has already explained that he did not use his handphone to take the offending image.[note: 69] This submission requires one to disregard the clear and unchallenged evidence on the technical data properties of the offending image as to its file nature, storage location, and creation date & time. It also requires one to disregard the clear and coherent evidence from Ms Koh as regards the forensic data recovery process which led to the discovery of the offending image in his subject handphone. I found no basis to do either purely based on the bare unsupported assertion of the accused that he did not use his handphone to take the offending image of V. Further, I noted that this bare assertion was also contradicted by the accused himself when he offered up his cautioned statement in response to the charge and where he admitted that he did take the offending image. To recap, that cautioned statement (P21) was recorded on 14th September 2020 at 17.25 hrs. By that date, the accused had already gone through three separate earlier sessions with the police where his statements were recorded (P18, P19 and P20) and where he had ultimately been shown the offending image found on his subject handphone. That context meant that there was no doubt whatsoever as to what he was being asked to formally respond to, i.e. the charge that he had insulted the modesty of V by using his handphone to take that offending image of her that night. In response to the charge and the caution, the accused could have said the act was accidental (as he did in P19), or he could have continued to maintain ignorance (as he did in P20), or offer any other explanation but he did none of those things. Instead, his cautioned response to the charge was:

“This is wrong. I deleted it immediately. I did this for a reason.”

59     It bears repeating that the defence took the position that this statement (and the others) was entirely voluntary. The defence also took the position that the recorder of this cautioned statement had better language ability and there were no communication issues. As such, the only reasonable and objective interpretation of the material part of his cautioned statement in that recounted context is that the accused was admitting that he did use his handphone to take the offending image of V that night, but that he had deleted it soon after/immediately. This cautioned statement plainly contradicted his testimony in court where he illogically maintained that the offending image was not taken by him, and he had only taken a very dark and blur image which did not even capture the likeness of V. The accused made no attempt to address his cautioned statement in his defence. It therefore remained standing as evidence that he did take the offending image of V. Having reviewed this defence submission, I found it evidentially flawed and that it could not be accepted.

Conclusion on the Charge:

60     After objectively reviewing the prosecution’s evidence on the charge, and the defence’s submissions made thereon, I found that the prosecution’s evidence remained entirely credible. V was a reliable witness of fact and her clear, complete and coherent testimony showed that the accused had intruded upon her privacy by taking the offending image of her when she was naked and showering privately in the bathroom. V’s testimony was materially corroborated by the unchallenged evidence regarding the technical forensic data of the offending image which was found in the subject handphone. Together with the admitted position that the subject handphone was only ever being used by the accused during that material period, all this conclusively showed that the accused had taken the offending image of V and that he did so intentionally.

61     Turning next to the evidence offered up by the defence, I found no reasonable doubt was raised. An objective review of that evidence – which consisted entirely of the bare assertions of the accused – will show that it had none of the qualities which earns it credibility. The Notes of Evidence show that accused could not stay consistent on his account, was ultimately offering up an incoherently incomplete scripted explanation as to what happened – one which he could not remember without reference to his prepared script. A few examples of his lack of credibility will suffice: his declaration that he did not take the offending image was contradicted by the solemn and voluntary admission which he entered in P21 that he did take the offending image of V. Next, in explaining how he came to accidentally activate the camera function on his subject handphone, the accused first said that ‘the camera function was near/next to the voice recording app’ on the screen of his handphone. When the said screen was presented in court as evidence (P28), he conceded that the apps were not near/next to each other – actually at the opposite lengths of the screen – but that he had nonetheless tapped the camera app by mistake. After a break in the proceedings, the accused changed his testimony again and said that the apps were next to each other inside a Google Apps Folder and pointed the apps out on P28. When those apps were verified and shown to have neither a camera function nor a voice recording function (P29), the accused could offer no coherent response. All this showed the utter lack of credibility of his defence.

62     For the reasons set out in these grounds, I therefore found the charge amply proven beyond a reasonable doubt and found the accused guilty and convicted him on it.

Prescribed Penalty:

63     The section 509 Penal Code charge he was convicted of carried a maximum penalty of imprisonment for a term which may extend to one year, or with fine, or with both.

Antecedents:

64     The accused was untraced.

Submissions on Sentence:

65     The prosecution tendered a written address on sentence that sought an imprisonment term of 12 to 16 weeks.[note: 70] In gist, the prosecution referenced the applicable precedents which indicated that an imprisonment term was due for such cases, and highlighting (1) the high degree of intrusion involved in the act, (2) the fact that V was a young student at the time and could be considered a vulnerable victim, (3) the utter lack of remorse exhibited by the accused, and (4) the efforts made by him during the case to thwart being held to account amounted to an obstruction of justice.

Mitigation:

66     Learned counsel tendered the written mitigation and address on sentence that sought a fine.[note: 71] In gist, the defence highlighted that (1) the prosecution’s own facts indicated that the act was a one-off instance, (2) that the accused was untraced, (3) that V was not a vulnerable victim because she was of ‘high cognitive ability’, and (4) that the accused was not trying to obstruct the course of justice. No authority was submitted to justify a fine, but reference was made to the dated case of PP v Tan Huat Heng (MA 25 of 2012) where probation was granted.

Reasons for Sentence:

67     I found little reliance could be placed on the outcome in PP v Tan Huat Heng since a different factual scenario was involved and no detailed grounds were ultimately issued by the High Court for its decision. Little meaningful comparison could be done as a result. This was especially since that decision pre-dated the detailed decision subsequently issued by the High Court as specific sentencing guidance for such offences in PP v Chong Hou En [2015]3 SLR 222 (“Chong Hou En”), where probation was set aside and imprisonment was imposed instead. Though I had brought Chong Hou En to the attention of the parties, the defence made no attempt to address the following points that judgment made:

■    That deterrence remains the primary sentencing objective in such offences given the increasing ubiquity of modern camera phones, and the very real danger of lasting shame and humiliation which victims face if their voyeuristic images were spread (at [65]);

■    It is aggravated if the intrusion was grave (i.e. full nudity), involved young victims, at the home of the victims, and involved a recording device (at [78]); and

■    That a 4 month imprisonment term was appropriate per charge (on a claim trial basis) if the facts showed a high degree of planning and premeditation (at [78]).

When that binding guidance is applied to the facts here, I found the 12-16 weeks’ imprisonment term sought by the prosecution to be entirely appropriate since:

■    The degree of intrusion on the victim here was grave as she was fully nude at the time;

■    The intrusion took place at the home of the victim at an hour when there was no one else around;

■    The accused knew the victim was a young person in comparison;

■    The accused had taken advantage of his licence to be at the apartment as a tenant to commit this offence against her instead; and

■    The accused had used a recording device in the offence to successfully take a compromising image of the victim.

I agreed with the High Court’s comments in Chong Hou En that a strong sentencing message should be sent to all those who habour thoughts of abusing the advancements in technology to commit these offences to satisfy their own perverse pleasures (at [65]). Further, I noted that the incident caused actual distress and fear to V when she realized that the accused had possession of such voyeuristic materials of her, plus there was also the anxiety she went through when she did not know whether those materials would spread. I considered though that there was not enough evidence to infer a high degree of planning and premeditation, and thus adjusted the sentence towards the lower end of the range for the single charge. All considered, I found a sentence of 12 weeks’ imprisonment to be entirely justified and appropriate given the facts here, and since the conviction was being recorded after a full trial, and where there continued to be utterly no evidence of any remorse, and so ordered for the charge. In closing, I make clear that I did not take into account the manner in which the defence was run at trial (with all the spurious explanations being offered), and the other actions taken by the accused to seemingly thwart the case (which the prosecution submitted was tantamount to an obstruction of justice). I would have if there was clearer guidance that our collective tolerance for those actions ought to be stricter, but no such authority has been issued.

68     The accused has seen it fit to pursue an appeal against his conviction and sentence. He is currently on bail pending his appeal.

[note: 1]NE, 9th May 2023, page 57.

[note: 2]Exhibit P9 and its translated copy at Exhibit P11.

[note: 3]Mr Chen was discharged for a brief period of a few hours during the trial, and that context and the following manner in which he resumed acting are set out in the NE, on 9th May 2023, at pages 1-2, and 35.

[note: 4]NE, 9th May 2023, pages 6-7.

[note: 5]NE, 9th May 2023, page 7.

[note: 6]NE, 9th May 2023, page 8.

[note: 7]NE, 9th May 2023, pages 9-11.

[note: 8]NE, 9th May 2023, page 11.

[note: 9]NE, 9th May 2023, page 12.

[note: 10]NE, 9th May 2024, page 27.

[note: 11]NE, 9th May 2023, page 13.

[note: 12]NE, 9th May 2023, pages 17-18.

[note: 13]Exhibit P9, and its translated copy at Exhibit P11.

[note: 14]NE, 9th May 2023, page 18.

[note: 15]NE, 9th May 2023, page 30.

[note: 16]NE, 9th May 2023, page 19.

[note: 17]NE, 9th May 2023, page 20.

[note: 18]NE, 9th May 2023, pages 22-24.

[note: 19]NE, 9th May 2023, page 22, and again on 4 April 2022, page 69.

[note: 20]NE, 9th May 2023, page 28.

[note: 21]NE, 9th May 2023, page 29.

[note: 22]NE, 9th May 2023, page 30.

[note: 23]NE, 9th May 2023, pages 27-28.

[note: 24]NE, 9th May 2023, pages 26 and 30.

[note: 25]NE, 9th May 2023, page 27.

[note: 26]NE, 4th April 2022, pages 12-13.

[note: 27]NE, 4th April 2022, page 17.

[note: 28]Exhibit P9 and its English Translation at Exhibit P11.

[note: 29]NE, 4th April 2022, pages 29-32.

[note: 30]NE, 4th April 2022, pages 34-35.

[note: 31]NE, 4th April 2022, page 36-37.

[note: 32]NE, 4th April 2022, pages 45-46.

[note: 33]NE, 4th April 2022, page 56; and again on 5th April 2022, page 7.

[note: 34]NE, 4th April 2022, page 59.

[note: 35]NE, 4th April 2022, page 60.

[note: 36]NE, 4th April 2022, pages 74-75.

[note: 37]The long statement of the accused in P18 was recorded on the 20th August 2019.

[note: 38]A1-A3, and A9 in P18.

[note: 39]The further long statement of the accused in P19 was recorded on the 2nd September 2019.

[note: 40]A2-A10 in P19.

[note: 41]A11 in P19.

[note: 42]The further long statement of the accused in P20 was recorded on the 26th March 2020.

[note: 43]A4 in P20.

[note: 44]NE, 4th April 2022, page 103.

[note: 45]See Q2 and Q3 in P20, and explained by Ms Khoo at NE, 5th April 2022 at page 51.

[note: 46]NE, 4th April 2022, page 103 and again at 105.

[note: 47]NE, 5th April 2022, pages 69-71.

[note: 48]NE, 9th May 2023, pages 33, 36-37.

[note: 49]NE, 9th May 2023, page 42.

[note: 50]NE, 9th May 2023, pages 39-40.

[note: 51]NE, 9th May 2023, page 41.

[note: 52]NE, 9th May 2023, page 43.

[note: 53]NE, 9th May 2023, page 45.

[note: 54]NE, 9th May 2023, page 45.

[note: 55]NE, 9th May 2023, page 46.

[note: 56]NE, 9th May 2023, page 47.

[note: 57]NE, 9th May 2023, page 47.

[note: 58]NE, 9th May 2023, page 47.

[note: 59]NE, 9th May 2023, page 48.

[note: 60]NE, 9th May 2023, page 49.

[note: 61]NE, 9th May 2023, page 51.

[note: 62]NE, 9th May 2023, page 51.

[note: 63]NE, 10th May 2023.

[note: 64] Para 5 of the Defence Closing Submissions dated 3rd October 2023.

[note: 65]See serial numbers 8 & 9 in P7.

[note: 66]See serial number 10 in P7.

[note: 67]See serial number 12 in P7.

[note: 68]See serial number 18 in P7.

[note: 69]Para 9 of the Defence Closing Submissions dated 3rd October 2023.

[note: 70]Prosecution’s Sentencing Submissions dated 30th November 2023.

[note: 71]Defence Submissions on Sentence dated 16th January 2024.

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Ng Kah Ming v Tan Sok Hui Jessica
[2024] SGDC 158

Case Number:District Court Suit No 829 of 2022, Assessment of Damages No 163 of 2023
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kim Bum Soo
Counsel Name(s): Muhammad Ridhwan Bin Abdul Rahim (Riaz Law) for the claimant; Foo Yuk Lin (Goodwins Law Corp) for the defendant.
Parties: Ng Kah Ming — Tan Sok Hui Jessica

Civil Procedure – Inherent powers – Belated change of position in parties’ cases

Damages – Assessment

Damages – Assessment – Causation

Damages – Measure of damages – Personal injury cases

Damages – Rules in awarding – Loss of earning capacity – Commissions-based jobs

30 September 2024

Judgment reserved.

Deputy Registrar Kim Bum Soo:

1       Is the Defendant bound by the position she takes in the joint opening statement? This question arises and is answered by this judgment, in a very specific context:

(a)     As is fairly common in cases involving road traffic accidents, interlocutory judgment is entered by consent, without a Defence/notice of intention to contest being filed.

(b)     The joint opening statement (“JOS”) is prepared and filed prior to the assessment of damages (“AD”). Put another way, the first definitive and complete statement of the Defendant’s position is found in the JOS.

(c)     The assessment proceeds on the basis of the positions taken in the JOS, and the parties’ examination-in-chief/cross-examination make no suggestion that they intend to depart from that.

(d)     The Claimant revises his position regarding certain heads of injury in the closing submissions (“CS”).

(e)     In closing reply submissions (i.e. when there is no longer an opportunity for the Claimant to clarify matters with witnesses, and after the Defendant had every opportunity to take a different position in closing submissions) the Defendant offers a position that not only departs from, but is fundamentally inconsistent with her previous position.

2       My answer, in brief, is that there is no general principle that a party is bound by the position she takes in her JOS. However, a court may, when clear need arises and the justice of the case requires, exercise its inherent powers, and opt not to entertain fresh arguments that detract from an earlier stated position. But where such fresh arguments are entertained, I would suggest that the opposing party be given an opportunity to respond as natural justice would require. My full thoughts are set out below at [21] – [25].

3       Separate from this, I had occasion to develop my earlier thoughts on the test for loss of earning capacity in relation to self-employed claimants (see Long Hean Kuang v Thomson Catering & Enterprises Pte Ltd and anor [2023] SGDC 243 (“Long Hean Kuang”) at [42] – [50]) and consider the implications of Crapper Ian Anthony v Salmizan bin Abdullah [2024] SGCA 21 (“Salmizan (CA)”). These are set out at [68] – [70] and [8] – [20] respectively.

Facts and procedural history

4       The Claimant-driver was involved in a road traffic accident with the Defendant-driver on 2 June 2022. Of note is that the Claimant underwent a surgical procedure fairly soon after the accident on 26th July 2022. This involved “lumbar spine L5S1 annuloplasty, bilateral facet radiofrequency ablation, and paravertebral blocks and trigger point injections” (collectively, “the surgery”). I will return to this later on.

5       Interlocutory judgment was entered by consent “with liability at 100% against the Defendant” on 30 November 2022. This was later varied (by consent) on 1 March 2023, with liability “entered in favour of the Claimant against the Defendant for 85% of the damages to be assessed with costs reserved to the Registrar assessing damages”.[note: 1] Notably, no mention was made of parties reserving any causation-related issues to the assessment, in either of the consent interlocutory judgments.

6       At the Assessment Case Conferences, the Defendant failed to meaningfully participate in the process[note: 2] and procedural directions had to be given in the Defendant’s absence.[note: 3] Following that, parties failed to submit Form 11 and were therefore unable to obtain a quantum neutral evaluation over the course of six case conferences between 19 May 2023 and 15 September 2023. The parties therefore lost an opportunity to negotiate a settlement with the assistance of the Court’s quantum neutral evaluation. The Court notes that the Claimant completed his portion of Form 11 and sent it to the Defendant as early as 15 June 2023, but no response appears to have been forthcoming from the Defendant. The matter was eventually rostered for an assessment of damages before me.

Housekeeping matters

7       Before proceeding to the assessment proper, I should first address two housekeeping matters arising from the Defendant’s belated arguments. The first is substantive – these arguments raise certain issues that should have and could only have been discussed at an earlier stage when liability was still at large. The second is procedural – these arguments represent a belated shift in the Defendant’s position, and it may be procedurally unfair for me to entertain them.

Salmizan (CA) and challenging causation belatedly

8       At the outset, I make clear that I am entertaining and, at some points, accepting the Defendant’s arguments which challenge the accident’s role in causing the Claimant’s injuries (“causation arguments”), even though they were raised belatedly at the assessment.

9       This – raising causation arguments at an assessment of damages – is seemingly impermissible for at least four reasons:

(a)     Causation cannot be challenged after liability has been established. Once established, a finding of liability necessarily accepts as established all elements of the tort of negligence, including the element of causation. An assessment of damages, convened after liability is established, should not reopen what is already closed.

(b)     Even if parties take steps to legitimately contest causation at a later stage in the proceedings (perhaps through a consent interlocutory judgment “reserving” issues of causation for later), such arguments would still not be permitted at an assessment of damages. Liability – and causation is indubitably an aspect of liability – must be established prior to quantification of damages. O. 15 r. 15 of the Rules of Court 2021 (“ROC 2021”), the provision that governs assessments of damages, appears to accept this sequence of adjudication as well.

(c)     Even if this particular aspect of liability is heard at the same time as the assessment of damages (perhaps in recognition of the fact that causation of injuries and quantification of damages are intimately connected), it appears that the two must be heard in different settings. Where proceedings are bifurcated, issues of liability (if disputed) are generally heard at trial. These must be heard in open court (see O. 15 r. 1(2) of ROC 2021). Quantification of damages is usually carried out at an assessment. These are heard in chambers (see O. 15 r. 1(1) of ROC 2021).

(d)     Finally, since a trial and an assessment usually require judicial officers to sit in different capacities (Magistrates/District Judges usually preside over trials, while deputy registrars generally assess damages), they implicate different jurisdictional limits. I, for example, am a Magistrate and could never, in that capacity, hear trials in the District Court, even as I preside over assessments of damages originating in the District Court, in my capacity as a deputy registrar.

10     My answer to these apparent objections is simply that a deputy registrar can preside over an assessment of damages in chambers, and may concurrently adjudicate the residual issue of liability (causation) in that setting. I explain this in three steps:

11      First, causation, though indubitably an element of negligence, need not be assessed at the same time as the other elements of the cause of action. “Liability does not need to be fully established before a consent interlocutory judgment can be entered in the context of [negligence claims for personal injuries arising from motor vehicle accidents (“PIMA”)]”: Salmizan (CA) at [35]. Liability, in other words, may be established in parts.

12      Second, causation, though indisputably a matter going towards the question of liability, need not be adjudicated before quantification of damages. It can be determined concurrently with the assessment of damages.

(a)     This is because in the PIMA context, questions of causation often overlap substantially with questions of quantum. Take whiplash injuries – a common type of spine-related injury arising from vehicle-on-vehicle collisions. The perennial debate centres on whether the force of the accident was responsible for the long-term back/neck aches resulting, or that a pre-existing degenerative condition (e.g. lumbar spondylosis) was responsible for the pain instead. The overlap is obvious: the same witness (i.e. the claimant) giving evidence about any pre-existing lumbar problems (which implicates questions of causation), would also testify about the pain he presently experiences (which is necessarily explored during an assessment of damages); the same doctor who can speak to the backache’s aetiology (again, a matter of causation) is the one venturing opinions about the severity of this backache (a question for assessment); and the same factual premises would generally undergird both submissions on quantum of damage and causation of damage. If so, it makes practical sense to have two intimately related issues determined together in the same setting. That – adopting an issues-based approach to making logistical decisions about the management/conduct of proceedings – was the sort of approach approvingly described in Salmizan (CA) at [58].

(b)     This would neither be the first nor last time that Courts adopt such a practical approach. A more intuitive sequence of adjudication, even if demanded by procedural hygiene, might yield to practical considerations in certain situations.

Consider Millenia Pte Ltd (formerly known as Pontiac Marina Pte Ltd) v Dragages Singapore Pte Ltd (formerly known as Dragages et Travaux Publics (Singapore) Pte Ltd) and others (Arup Singapore Pte Ltd, third party) [2019] 4 SLR 1075. That case concerned large stone panels that were defectively installed on the Centennial Tower’s façade. Two stone panels (weighing over 100kg each) fell off on two separate occasions, and the building owner sued the companies that installed the stone panels/rectified the façade the first time a stone panel fell off. Notably, though the trial was bifurcated between issues of liability and quantum, one of the issues related to quantum was heard at the liability stage of the proceedings (see [6]). Specifically, the Court assessed whether the building owners were entitled to recover the cost of completely recladding the Façade, at the liability stage instead of at the quantum stage (“the Reclad Issue”). This made perfect sense for two reasons. One, both the liability and Reclad Issue involved a great deal of similar expert evidence (see [225(a)] and [671]). It would have been impractical to call the same experts twice at two different stages of the proceedings to essentially give the same evidence. Two, the issues for liability and Reclad Issue were intimately linked. Both matters turned on factual findings about the nature and extent of the defects: the liability issue, for obvious reasons; and the Reclad Issue, because the reasonableness of pursuing a total recladding depended on how serious the defects were. Given the shared issues and shared reliance on expert evidence, it made perfect sense to have these issues heard together. The same reasoning applies to causation issues and assessments of damages in the PIMA context.

13      Third, though issues of liability such as causation are usually determined at trial in open court before a District Judge/Magistrate, I can find no authority that suggests issues of liability must be adjudicated at a trial presided over by a District Judge/Magistrate. By that same token, I can find no authority that explicitly precludes a discrete issue of causation from being heard at the assessment of damages presided over by a judicial officer sitting as a deputy registrar. So understood, the conceptual obstacle to having this matter heard before me may have been more illusory than real.

14     All this being said, I acknowledge that this particular aspect of my reasoning proceeds on a serious assumption: that issues of liability do not necessarily have to be adjudicated at trial. If this assumption were upset, the implication could be serious. The causation arguments and assessment of damages may well be heard concurrently (see [12] above), but only a trial could accommodate both in the same setting. And it being a District Court trial, I would be out of jurisdiction as a Magistrate. Since parties did not raise this issue, and being reasonably comfortable with the assumptions I have made, I did not find it prudent to make a conceptual mountain out of a molehill. Indeed, by the time this matter came before me in chambers, it would have been logistically absurd to have sent it back to the trial courts on account of procedural hygiene. And of course, the parties were fully in agreement and that there was no prejudice occasioned either.

15     I conclude with the caveat that everything I have mentioned above is limited to situations when (a) parties enter consent interlocutory judgment, (b) reserving causation to be assessed later, (c) for a PIMA matter. This is because:

(a)     My decision takes reference from and is ultimately bound by the observations of the Court of Appeal in Salmizan (CA), which was concerned with consent interlocutory judgments entered without admitting causation in the PIMA context.

(b)     Causation arguments would presumably not be raised at AD if responsibility for the accident is contested. By responsibility for the accident, I mean the other elements of negligence such as a recognised duty of care and breach of the same. In situations where responsibility for the accident is contested, an AD would not be convened at all. Rather, a preliminary issue of responsibility for accident would be adjudicated at trial, and following that, the trial will proceed with both issues of causation and quantification of damages being heard together.

(c)     Where default, rather than consent, judgment is entered, causation arguments would usually not be raised at an unchallenged AD either. That is because the default judgment would typically be final as to liability between the parties and causation arguments cannot, by that point, be raised. A finding of liability, after all, assumes that causation is fully admitted. If the Defendant wishes to raise causation arguments at the AD, the proper recourse would then be to set-aside the default judgment and enter a consent judgment that reserves issues of causation for the AD.

16     Ultimately, this issue – the proper forum and procedural mechanism for adjudicating causation arguments in the PIMA context– comes down to a contest between conceptual tidiness and practical realities. My view is that the two need not be mutually exclusive. I therefore summarise what I see as the proper, as well as practical, approach to the various situations that have arisen before me in the PIMA context:

(a)      Where the matter proceeds to trial because the Defendant disputes his responsibility for the accident, the parties ought to have responsibility for accident adjudicated as a preliminary issue at trial. Following that, they may wish to pursue negotiations (as I understand to be the usual course of events) before taking dates for further trial. At that next tranche of trial, and assuming that negotiations do not bear fruit, parties would be welcome to pursue any causation arguments (presumably reflected in their cross-examination and closing submissions) before seeking a final judgment that encompasses both a judgment on liability and a quantification of the damages payable.

(b)      Where consent interlocutory judgment is being entered, the Defendant ought to make clear whether issues of causation will be reserved. As the Court of Appeal remarked, “accuracy, precision and clarity in drafting such a consent interlocutory judgment” is paramount: Salmizan (CA) at [51]. Absent an express reservation to that effect, it may well be assumed that the parties have accepted the interlocutory judgment as final on matters of liability, and causation arguments would accordingly be impermissible at a later stage.

(c)      Where default interlocutory judgment has been entered against the Defendant, with damages to be assessed, the assumption ought to be that this interlocutory judgment is final as to liability. That means that causation arguments should not be raised, so long as that default interlocutory judgment stands. There is no reason to presume otherwise. The Claimant cannot have intended for it (since the Claimant has no reason to caveat the judgment to his own detriment) and the Defendant has simply not articulated his position at all. If the Defendant participates belatedly in the proceedings, seeking to raise causation arguments, he/she will have to set aside that default judgment and proceed accordingly. Alternatively, he/she may have to seek the Court’s leave to vary the interlocutory judgment (presumably, by consent). All this means is that a Defendant will now have to consider two matters in deciding whether to apply to have the default judgment set aside/varied. He will, as has always been the case, have to consider whether he disputes responsibility for the accident. But he will also have to consider whether he wishes to raise causation arguments later on.

17     That said, I recognise that “a defendant who entered into an interlocutory judgment, whether by consent or not, prior to [30 March 2023] is entitled to raise issues of causation at the AD stage, even in respect of all the damage that the claimant claimed to have suffered.”: Foo Kok Boon v Ngow Kheong Shen and other and another matter [2023] SGHC 189 (“Foo Kok Boon”) (emphasis in underline, mine). Foo Kok Boon, an authority from the General Division of the High Court which has technically not been overturned by Salmizan (CA), permits causation arguments at an assessment in certain situations.

18     However, as a matter of obiter, I would suggest that Foo Kok Boon ought to now be read in light of the pronouncements made by our apex Court in Salmizan (CA), which permits raising causation arguments at an assessment, specifically in situations when consent interlocutory judgment reserving issues of causation had been entered into between parties in the PIMA context. More importantly, Foo Kok Boon proceeded on the premise that Salmizan bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75 (“Salmizan (HC)”) was still good law. That is no longer entirely true as Salmizan (HC) was overturned on appeal. If so, I have serious reservations as to whether counsel can rely on Foo Kok Boon to raise causation arguments belatedly, without an appropriate reservation made in a consent interlocutory judgment between parties.

19     A final somewhat pedantic point on terminology: if the Defendant is found not to have caused the injury, the proper nomenclature ought to be that the Defendant is not liable for the particular injury rather than damages being “assessed” as nil. After all, if the Defendant did not cause that particular injury, then the cause of action (in respect of that injury) is not complete. The Defendant cannot be liable for that. And if there is no liability to begin with, there is simply no occasion for an assessment at all.

20     In the present matter, I apprised the counsel of my concerns. The solution was practical and agreed by all parties – the consent interlocutory judgment was varied (with my permission) to reflect that causation arguments were reserved to the AD. Accordingly, I was in a position to hear the causation arguments at the assessment, along with the usual matters arising in an AD, sitting in my capacity as a deputy registrar.

Change of position

21     I turn then to the other housekeeping matter. The starting point is that the JOS is not a pleading and does not bind parties the way that pleadings ordinarily would. The tension is that when Defendants are otherwise absent throughout the proceedings and surface only as ADs loom, the JOS is ordinarily the first definitive and complete statement of the Defendant’s position in the court records. In that regard, it effectively functions like a set of pleadings even if it is not formally so.

22     My view is that the Defendant cannot take advantage of this technicality to commit egregious breaches of natural justice. As the High Court in Tan Hun Boon v Rui Feng Travel Pte Ltd and another [2017] SGHC 189 observed at [64], the fact that the Defendant failed to file pleadings “cannot be taken as carte blanche for the Defendant to take the other side by surprise by changing their case fundamentally after the trial is over.” But equally, parties ought to be given some leeway to respond to the fluid developments at an assessment of damages, without being shackled to the positions taken in their joint opening statement. As such, my view is that parties are indeed free to depart from the positions taken in their JOS’, but is subject to some (non-exhaustive) commonsensical considerations such as:

(a)     how extensive or radical the departure is from the originally stated position;

(b)     the opportunity given to the opposing party to respond to these departures, including whether the change in position was foreshadowed/implied during cross-examination and the particular point was brought to the relevant party’s notice;

(c)     the explanation for such a change in position, including any developments outside of the parties’ control, and whether there existed earlier opportunities to depart from an earlier stated position.

(d)     the cogency of any newly stated position, including whether it was supported by the evidence or otherwise an entirely speculative/unsubstantiated position; and

(e)     whether any change in position can be addressed with a suitable opportunity given to the opposing party to make further submissions.

23     Accordingly, depending on the facts of the case, the Court may find that its inherent powers are enlivened, such being “the reserve or fund of powers […] which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”: Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 117 (“Wellmix”) at [83] (emphasis mine), citing Sir Jack Jacob’s seminal article, “The Inherent Jurisdiction of the Court” (1970) Current Legal Problems 23. Since the “essential touchstone is one of “need”” (Wellmix at [27]) and since these powers “should only be invoked in exceptional circumstances” (Roberto Building Material Pte Ltd & Ors v Oversea-Chinese Banking Corp Ltd. [2003] 2 SLR(R) 353 at [17]), I would imagine the impropriety must be particularly high for a court to exercise its inherent powers, whatever form that may take (e.g. refusing to entertain a belated argument entirely).

24     In the present case, I was not minded to shut out the Defendant’s arguments entirely, as belated as they were. It transpired that the Defendant’s belated change in position arose from a genuine misunderstanding between counsel. When the Claimant’s counsel forwarded a draft JOS (filled out with his proposal for each head of claim) to the Defendant’s counsel for her input, the Defendant indicated that she accepted the Claimant’s proposal for certain heads of claim. The Defendant’s counsel took that to mean that parties had agreed on those heads of claim and therefore opted not to pursue any line of questioning on the same. The Claimant’s counsel, however, took the Defendant’s indications as nothing more than unilateral submissions which happened to align with the Claimant’s proposals at the time of crafting the JOS, rather than some sort of bilateral agreement between parties. And so, when the Claimant’s closing submissions deviated from what the Defendant had assumed to be already agreed between parties, the Defendant took this to mean that everything was now fair game. Accordingly, the Defendant’s closing reply submissions involved extensive submissions charting the Defendant’s true position on the matter – a position that drastically veered from what had originally been set out in the JOS.

25     In my view, this could all have been avoided if the Defendant’s counsel had made clear at the outset that she (a) assumed that those heads of claim were agreed between parties and not the subject of the assessment, (b) would not be pursuing a line of questioning at assessment on those heads of claim, and (c) reserved her rights to recall the Claimant for further cross-examination if the Claimant veered from that earlier “agreement”. That being said, I recognise that this could be chalked up to a mere misunderstanding between counsel – a mess to be cleaned up rather than impropriety to be extinguished. I was therefore not inclined to shut out the Defendant’s arguments entirely. More importantly, some of the Defendant’s arguments were fairly valid points (while others were plainly without merit, as I will explain shortly). The better and more valid arguments could have been suitably regularised, as a matter of natural justice, by giving the Claimant an opportunity to speak on the same. That was precisely the route I took when I called parties for further clarification, and my decision below reflects that. I turn then to the decision proper.

Executive Summary

26     In brief, I awarded damages as follows:

S/N

Item

Award

GENERAL DAMAGES

Pain and Suffering

 

1

Back injury

$12,250

2

Whiplash Injury

$4,500

3

Shin contusion

$800

(agreed between parties)[note: 4]

4

Bilateral trapezius strain

$800

5

Forehead contusion

$800

6

Left chest wall contusion

$650

Others

7

Loss of future earning capacity

$2,000

SUB-TOTAL (GENERAL DAMAGES):

$21,800

SPECIAL DAMAGES

Medical Expenses

8A

Consultations, medication, physiotherapy

$6,706.78 (agreed between parties)[note: 5]

8B

Surgery costs

$34,324.70

Transport Expenses

9

Pre-trial transport expenses

$570

(agreed between parties)[note: 6]

Loss of pre-trial earnings

10A

Loss of pre-trial earnings as a real estate agent

$35,366.28

10B

Loss of pre-trial earnings as a private hire driver

$0

SUB-TOTAL (SPECIAL DAMAGES):

$76,967.76

TOTAL DAMAGES (GENERAL & SPECIAL DAMGES):

$98,768



General damages - pain and suffering

The applicable legal principles

27     The principles are well-established and set out in Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) at [12] – [18]. I adopt the summary I have penned elsewhere in Asher David De Laure v Norhazlina Binte Md Yusop [2023] SGDC 72 (“Asher David”) at [10]:

(a)     First, the component method is applied. That involves quantifying the loss arising from each item or head of damage separately. This ensures that the loss arising from each distinct item or head of damage is properly accounted for: Lua Bee Kiang at [14]. Reference may be made to the Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) since they set out indicative assessment ranges for most types of personal injuries. However, these are no more than guidelines and a “good starting point” for negotiation: Lua Bee Kiang at [15].

(b)     Second, the global method is applied. That involves holistically considering all the injuries, to determine whether the aggregate award is reasonable and neither excessive nor inadequate: Lua Bee Kiang at [16]. This exercise is guided by at least two considerations. The first is to avoid overcompensation, with the Court accounting for any “overlapping” injuries that either (i) together resulted in pain that would not have been differentially felt by the claimant or (ii) together gave rise to only a single disability: Lua Bee Kiang at [17]. The second consideration is to ensure that like cases are treated alike, by considering and referring to the appropriate precedents: Lua Bee Kiang at [18].

28     Besides this, I recognise that the benchmarks set out in the Guidelines and the awards made in past cases ought to be made more relevant by accounting for inflationary pressures: see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 at [18] and Quek Yen Fei (by his litigation representative Pang Choy Chun v Yeo Chye Huat and another appeal [2017] 2 SLR 229 at [110]. There being no authority on how inflation may be accounted for in a principled manner, I have previously used the Monetary Authority of Singapore’s online inflation calculator (“MAS Inflation Calculator”)[note: 7] in Asher David (see [8]). That approach has since been similarly applied in Poongothai Kuppusamy v Huationg Contractor Pte Ltd and anor [2023] SGHC 215 at [57], and Najai Benchawan v Chong Qing (Origin) Steamboat (Pte) Ltd and others [2023] SGDC 286. I see nothing wrong with applying the same approach here again.

Stage 1 (Component approach) - Back injury

29     I award $12,250 for the back injury.

30     As a preliminary point, there was insufficient medical evidence for me to confidently characterise the back injury. Indeed, neither of the doctors called for the hearing, Dr Sean Ng (“Dr Ng”) and Dr Lim Yi-Jia (“Dr Lim”), offered a clear diagnosis for the back injury. The injury was initially diagnosed as a “back sprain” by Dr Timothy Tan (“Dr Tan”) on 3 June 2022[note: 8] and Dr Christie Chang (“Dr Chang”) on 6 June 2022.[note: 9] Following an MRI of the spine on 16 June 2022, Dr Ng simply identified the injury as an “L5S1 disc bulge with posterior annular fissure” and managed it on that basis.[note: 10] Dr Lim did not commit to any firm diagnosis but suggested at the hearing on 19 December 2023 that “if pushed”, he would have diagnosed this as “back strain with aggravation of underlying lumbar spondylosis”.[note: 11] In that sense, there was no clear agreement on the precises diagnosis of the injury. That said, the irrefutable evidence (accepted by both Dr Lim and Dr Ng) was that the MRI had identified certain abnormalities with the back: “desiccated L5/S1 disc”, a “posterior annular fissure” and a “mild broad-based central disc protrusion”.[note: 12]

31     Ultimately, I saw no need to diagnose or make firm findings about the precise nature of the injury. The inquiry for pain and suffering is not a naming-exercise (see Daniel Terry v Lee Susan Sauming [2020] SGMC 31 (“Daniel Terry”) at [29] and Yap Pow Kin v Muhammad bin Johari [2019] SGMC 40 at [11]), and I was content to simply assess the back injury as a collection of abnormalities comprising a “desiccated” L5/S1 disc, a “posterior annular fissure” and a “mild broad-based central disc protrusion”. On that understanding, the two sub-issues for this head of damage are:

(a)     Whether the accident caused the back injury; and

(b)     The proper quantum of damages for the back injury

32     On the first sub-issue, I find that the accident caused the back injury but that a portion of the pain arising was attributable to a pre-existing degenerative condition in the lumbar spine. Accordingly, I find that a 30% discount ought to be applied to the final award for the back injury.

33     There was little dispute between parties that the accident had indeed caused some sort of injury to the back. The magnetic resonance imaging scans (“MRIs”) showed that there were “trace effusions within the facet joints”,[note: 13] and Dr Lim (the Defendant’s expert) conceded that the effusions was suggestive of trauma.[note: 14] This – the acknowledgement that the accident had caused some sort of trauma to the lower back – was also consistent with Dr Ng’s testimony[note: 15] and the fact that prior to the accident, the Claimant did not experience any back pain.[note: 16]

34     That said, I find that there was a pre-existing degenerative condition primarily because the affected disc (L5/S1) was desiccated, suggesting a “long term problem”.[note: 17] That was Dr Lim’s unchallenged evidence at assessment, and I saw no reason to doubt the same. More importantly, the only evidence suggesting that the injury was purely trauma related – the fact that the desiccation was isolated to a single disc - was explainable by other factors. This deserves some explanation. The suggestion at assessment was that if there had been pre-existing degenerative conditions, one would have expected to see degenerative changes along the entire length of the lumbar spine. The other lumbar discs being “hydrated and without annular fissure”,[note: 18] an inference could be drawn that the L5/S1 desiccation was purely traumatic in nature.[note: 19] I am not prepared to draw that inference. As Dr Lim explained, degenerative changes are generally common in most of the population, and observable “from teen onwards even”.[note: 20] Such degenerative changes commonly manifest in one rather than several discs because of “biomechanical reasons”,[note: 21] presumably to do with how weight is distributed and borne by the lumbar spine. Specifically for the Claimant, Dr Lim suggested that the L5/S1 disc’s desiccation could be explained by the fact that the Claimant was overweight.[note: 22] Again, these were not seriously challenged by the Claimant at the hearing. The only relevant questions put by the Claimant’s counsel yielded an equivocal response:

Dr Lim:

The fact that the disc was desiccated, you can tell it's a long-term problem. Very often at lumbar spine there's one or two discs that are desiccated. And it's commonly L4/5. L1/2, L2/3, L3/4 hardly comes with problems. There is a biomechanical reason for why the lumbar spine usually has less problem. less movement.

 

If you look at T12/L1, the ribcage restricts the movement. And most of the movement is on L4/5 and L5/S1. So if he has a L5/S1 fusion where it's so bad, you'll find that L4/5 will degenerate. But in the cervical spine, there's more even distribution.

Claimant’s Counsel:

If L5/S1 is degenerative, wouldn't L4/5 also have a problem?

Dr Lim:

Could be.



I was unable to place much weight on that equivocal testimony.

35     As for the extent that the degenerative conditions contributed to the Claimant’s pain and suffering, I did not find the evidence to be particularly compelling in favor of either the Claimant or the Defendant. To start with, the doctors were only really questioned on whether pre-existing degenerative changes had a role to play in the Claimant’s pain and suffering, and never on the nature or extent of that role. And beyond that, the submissions did not address the extent that the accident’s trauma might have aggravated any pre-existing degenerative condition. The only inference that I was prepared to draw is that the degenerative condition was, on a balance of probabilities, not severe prior to the accident. There was no evidence of the Claimant experiencing any back-related issues prior to the accident, and the nature of the Claimant’s job (as a real estate agent and part-time private hire driver) would not ordinarily have resulted in serious wear and tear on the lumbar spine. For these reasons, I am prepared to accept that the accident would have been responsible for most of the pain the Claimant experienced (i.e. around 70%).

36     On the second issue (quantification of the damages payable), the starting point is the Guidelines. I find that the applicable range ought to be $10,000 - $17,000. That is a range catering to injuries involving “exacerbation of existing back conditions…” but where the “injured person is able to cope with the activities of daily life although he may have difficulty performing his job at the pre-trauma capacity”. At face value, the present case appears to answer that description.

37     On that range, I find that the injury ought to sound in $13,500 (around the middle of the range). The pain was present even at the time of assessment,[note: 23] and the Claimant was taking painkillers to manage the pain as and when it arose.[note: 24] While he did not report any further lower back pain at his review with Dr Ng on 16 December 2022,[note: 25] he explained that his pain had returned after that.[note: 26] Therefore, the evidence – and I did not see any reason to be sceptical of the Claimant’s credibility – paints a picture of an uneven and erratic relationship with pain. The Claimant was forthright, acknowledging that at points he did not experience pain,[note: 27] but also made clear that the pain returned – albeit in a slightly duller form.[note: 28] Given this, and given the Claimant’s testimony of the excruciating pain he suffered in the early days following the accident (“After a month I was in the bed, couldn’t even come down from that. I was also crawling around. Believe me, that was how much pain I was in […] I was just in so much pain.”),[note: 29] I find that damages at the middle of the range (i.e. $13,500) would be fair. This would also suitably reflect the fact that the injury required an invasive surgery, and physiotherapy as well. After accounting for inflation, the damages ought to be adjusted to $17,500.

38     I should also address five main arguments from the Defendant. I reject them all.

39      First, the Defendant suggested that Dr Ng did not “verify how bad the back pain was”.[note: 30] The Defendant then proceeded to – in a manner wholly unbefitting of a layperson – list medical checks that Dr Ng ought to have conducted (“detect tenderness, check on range of motion, palpate for spasms […] By right a doctor can quantify better the pain level by administering any of the standard method such as Visual Analog Scale, Verbal Rating Scale, and Numeric Rating Scale.”).[note: 31] The Defendant is not a doctor. And neither is her counsel. And more importantly, these sort of suggestions ought to have been tested at trial. It was entirely inappropriate for the Defendant to now ambush the Claimant with untested allegations at the eleventh hour.

40      Second, the Defendant suggested that Dr Ng did not “corroborate the complaint history of patient” with any “objective evidence to support veracity of the symptoms alleged by Claimant”.[note: 32] The Defendant concluded, somewhat sarcastically, that Dr Ng “[appeared] to believe patient a lot”.[note: 33] That is simply not true. Dr Ng first conducted a clinical examination at his initial consultation with the Claimant.[note: 34] Following that, an MRI – i.e. an objective and empirical diagnostic tool – was ordered and later reviewed on 20 June 2022.[note: 35] More importantly, Dr Ng recorded the Claimant’s complaints over a long time horizon – he was the Claimant’s treating doctor after all – and had an opportunity to track any medical developments over time. In that regard, Dr Ng specifically recorded that the Claimant had “persistent low back pain”,[note: 36] and also recorded in his notes that the pain was “severe pain++”.[note: 37] All this was later confirmed by Dr Ng again in his report dated 8 August 2023 when he added that the Claimant had “severe low back pain” at the review on 22nd July 2022, and that was why the surgery was discussed at all.[note: 38] Importantly, there was no reason to doubt Dr Ng’s ability to take medical history accurately. His notes were consistent with Dr Chang’s history-taking as well (“He returned to our clinic […] for persistent pain in his […] lower back”), and when the Claimant no longer reported any pain (at least, as of 16 December 2022), Dr Ng candidly recorded that observation.[note: 39]

41      Third, the Defendant took umbrage at the fact that Dr Ng had not taken steps to verify whether the Claimant had first pursued a course of “physiotherapy and medication”.[note: 40] This supposedly threw Dr Ng’s testimony/evidence into doubt and diminished its reliability. I agree that a doctor ought to get a sense of what existing treatment options had already been explored before rendering further medical advice. It is also true that Dr Ng appears to have assumed that physiotherapy had been pursued before the Claimant came to visit him (he wrote in his report dated 30 June 2022 that the Claimant “was managed with physiotherapy and medication first”,[note: 41] even though the Claimant only attended his first physiotherapy session afterwards on 21 July 2022).[note: 42] But I don’t see the relevance of the Defendant’s objection. It says nothing about Dr Ng’s ability to take medical history, and to record the Claimant’s complaints at that time (see [40] above). There was no reason to doubt Dr Ng’s records either – he confirmed on oath that he “never thought [the Claimant] was malingering or anything like that.”[note: 43] And if the Defendant truly thought that “the best objective evidence would be a report from the physiotherapist”, then the Defendant ought to have asked for one. If the Claimant chooses to run his case solely on the strength of the doctors’ testimony (as in the present case), the measure of the evidence is the cogency of the doctor’s evidence, not a speculative yardstick about an imaginary physiotherapist.

42      Fourth, the Defendant pointed out that pain medication was not prescribed at some of the Claimant’s consultations with Dr Ng. The inference, supposedly, is that “Dr Ng saw no reason to medicate for pain relief.”[note: 44] I refuse to draw that inference. This suggestion was never put to Dr Ng or the Claimant. And more importantly, the argument is somewhat tenuous. If a patient experiences pain, one might expect medication to be prescribed. But it does not follow that the absence of prescribed medication necessarily invites the opposite conclusion. In fact, the Claimant returned for painkillers as recently as 16 August 2023.[note: 45]

43      Fifth, the Defendant suggested that the Claimant’s failure to pursue physiotherapy in a timely fashion prior to the surgery suggested that the Claimant had failed to mitigate his losses. The law on mitigation of losses in tortious claims is lucidly summarised in Don King Martin (trading as King Excursion & Transport Provider) v Lenny Arjan Singh [2023] SGHC 334 (“Don King Martin”) at [58]:

58    …a plaintiff has a duty to take reasonable steps to mitigate the loss resulting from the defendant’s tort and cannot recover damages for loss which he could reasonably have avoided: The “Asia Star” [2010] 2 SLR 1154 (“The ‘Asia Star’”) at [24]. To minimise any potential unfairness to the aggrieved plaintiff, the courts have sought to ensure that the standard of reasonableness required of him is not too difficult to meet. For instance, he is not required to act in a way which exposes him to financial or moral hazard. The standard of reasonableness falls short of being purely objective as it takes into account subjective circumstances of the plaintiff: The “Asia Star” at [31]. Pertinently, an assertion that the plaintiff failed to mitigate his loss must be pleaded and proved by the defendant relying on it: Jia Min Building Construction Pte Ltd v Ann Lee Pte Ltd [2004] 3 SLR(R) 288 at [71].

(emphasis in bold mine)

44     The Defendant’s case was hobbled at the outset by her failure to plead any assertion that the plaintiff failed to mitigate his loss. But even putting that aside, the surgery, though pursued fairly early on and though somewhat aggressive, was entirely defensible as a matter of medical practice:

(a)     Dr Ng made clear that surgery was not explored at first instance (“No I would never. Not at first. Conservative first.”).[note: 46] This was borne out by the evidence. The Claimant was conservatively treated and taking medication for at least a month from the time of the accident before eventually opting for surgery on 27 July 2022.[note: 47]

(b)     Dr Ng explained that he had advised surgery because Dr Lim’s alternative proposal[note: 48] might have involved a “second procedure [and he didn’t] want to subject plaintiff to yet another procedure […] another operating theatre session, another anaesthetic session, etc.”[note: 49]

(c)     Dr Ng and the Claimant decided to pursue the surgery after a considered discussion of the potential benefits and trade-offs of various surgical options.[note: 50]

(d)     Dr Ng had basis to suggest the surgery since he was assured by “good results” with the surgery before.[note: 51] The choice of surgical procedure being something practice-based, and something within the judgment of the expert, I am loath to substitute my own assessment with Dr Ng’s.

(e)     More importantly, even Dr Lim agreed with Dr Ng that “[the choice of surgical procedure is] ultimately practice based.”[note: 52] There was no suggestion the surgery was inherently dangerous, scientifically bogus, or otherwise unreasonable to pursue. At best, Dr Lim made a passionate case for physiotherapy and suggested that the surgery was not a silver bullet for the pain management.[note: 53] But that was not enough to convince me that pursuing the surgery was itself unreasonable.

45     Given this, I am assured that even though the doctors generally agreed on pursuing treatments in a gradated fashion (i.e. from less costly and less risky to more so),[note: 54] there was reason enough to pursue a more aggressive solution (i.e. the surgery) even earlier on in the recovery process. Dr Ng spoke plainly at the assessment. He said the Claimant was suffering from “severe pain ++”.[note: 55] He was prepared to offer medical advice that would address that. In that regard, I reiterate that “the standard of reasonableness required of [the Claimant] is not too difficult to meet [and] takes into account subjective circumstances of the [Claimant]”: Don King Martin at [58].

46     Taking all this into consideration, and applying the 30% discount to $17,500, I assess damages for the back injury at $12,250.

47     Parenthetically, I should add that I did not appreciate the manner in which the Defendant’s closing submissions were phrased. At points, they felt unfair, as they invoked brand new yardsticks – metrics which had never been raised in the assessment[note: 56] – that the Claimant had allegedly failed to meet. At other points, they sounded bordered on being disrespectful. The Claimant was accused of giving “dishonest” replies for not informing Dr Ng that he had not started on physiotherapy at the time of the 21 July 2022 consultation.[note: 57] He was even accused of “misleading” his doctor (an allegation that was not tested at the assessment).[note: 58] And there was fanciful speculation that the Claimant “did not think it important enough to recover from his back pain in June 22 to July 22” (another allegation that was not tested at assessment), when the evidence clearly suggests that the Claimant was in so much pain[note: 59] that he opted for surgery very early on. To my mind, even in an adversarial system, there must be limits as to what counsel can allege. The Defendant’s counsel may have, at points, crossed that line.

Stage 1 (Component approach) - Whiplash Injury

48     I award $4,500 for the whiplash injury.

49     The doctors agreed that this was a case of “whiplash to the cervical spine with aggravation of underlying cervical spondylosis”.[note: 60] The starting point for whiplash injuries in the Guidelines is $5,000 - $7,000 for Grade 1 whiplash injuries. Adjusted for inflation, that is $6,500 - $9,100.

50     I find that the present case is an appropriate occasion to dip below the range stated in the Guidelines. Indeed, the precedents suggest (see p 153 of Carrie Chan et al, Practitioner’s Library – Assessment of Damages: Personal Injuries and Fatal Accidents (Lexis Nexis, 3 Ed, 2016) (“Practitioner’s Library”)) that even whiplash injuries may well sound in damages under $5,000. I find this an appropriate case to deviate from the Guidelines for two reasons:

(a)     First, the injury did not appear to be especially severe. There was “mild” cervical spine tenderness but “good range of movement”.[note: 61] The “power in bilateral C5-T1 myotomes were full”[note: 62] as well. In fact, the Claimant’s neck pain had resolved by 22 July 2022[note: 63] and there was no suggestion at assessment that his neck was still troubling him. This means that the neck pain lasted about two months at most. This distinguishes the present case from Scott Grayham De Silva v Comfort Transportation Pte Ltd and others [2017] SGDC 215,[note: 64] where the plaintiff suffered symptoms for 2 years and 10 months (see [15]). This also distinguishes the present matter from Choo Mee Hua v Karuppiah Veerappan [2023] SGDC 306[note: 65] where there was continuing intermittent pain “some two and a half years after the accident, and [which involved] a permanent disability of 10%” (see [13]). Those cases sounded in damages of $11,000 and $7,400 respectively.

(b)     Second, the injury appeared to have been managed conservatively and there was no special measure (such as an invasive surgery) taken to manage the pain. This distinguishes the present case from Daniel Terry[note: 66] where the Plaintiff attended some 97 physiotherapy sessions in the span of two years (see [26]) and from Lang Ren Jee Renata Mrs Tay Ren Jee Renata v Toh Yij Wei [2023] SGHC 147[note: 67] where the plaintiff averaged about two physiotherapy sessions a month (see [11]) and would require special procedures to manage the “permanent” neck symptoms (see [19] – [20]). Those cases sounded in damages of $9,000 and $8,000 respectively.

51     Accordingly, I assess damages at $4,500 (equivalent to a fairly severe neck sprain, according to the Guidelines). I have done so bearing in mind that the Claimant’s symptoms included “parasthesia over the right C7 dermatome”, and considering that the accident had played a role in aggravating the pre-existing issues. This, to my mind, is consistent with the $4,000 award granted in Mohamed Rizal Bin Yatiman v Wadhrul Hijazi Bin Abdul Wahab [2020] SGDC 211[note: 68] where the plaintiff’s pain lasted about two months but was “intermittent and not constant in nature” (see [7]), without any other secondary complications.

Stage 1 (Component approach) - Shin contusion

52     Parties agreed on $800 for this head of claim. Having surveyed the medical evidence, I found this appropriate and fair and award that accordingly.

Stage 1 (Component approach) - Bilateral trapezius strain, forehead contusion, and chest contusion

53     As alluded to above at [1], the Defendant fundamentally changed her position with regard to these heads of claim in her closing reply submissions (“CRS”):

Injury

Claimant

Defendant

JOS

CS

CRS

JOS

CS

CRS

Trapezius strain

$800

$1,500

$1,500

$800

$800

Nil

Forehead contusion

$800

$1,000

$1,000

$800

$800

Nil

Chest contusion

$1,000

$1,200

$1,200

$1,000

$1,000

Nil



54     As explained above (see [25]), I did not find that the Defendant’s arguments deserved to be shut out, purely on account of them being late. I therefore proceeded to examine these particular injuries on the strength of the evidence and (where appropriate), considered the Defendant’s arguments fully.

Bilateral Trapezius Strain

55     The Defendant’s argument, in essence, was that this was nothing more than an offshoot of the neck injury. These being overlapping injuries, they ought to be considered together. Accordingly, the Defendant proposed that I assess damages at $0 for the bilateral trapezius strain. The Defendant did not propose any uplift to the neck injury even though it, according to her, ought to now encompass a bilateral trapezius strain as well.[note: 69]

56     In my view, that is a matter of expert evidence, and the Defendant has not put that hypothesis to the test before the doctors. The Defendant has drawn inferences and made conjectures (“The doctor did group together two set of muscles when examining for tenderness i.e. the report noted “tenderness at bilateral cervical paraspinal muscles and trapezius muscles””)[note: 70] that she is not entitled to make as a layperson. Needless to say, exhibiting medical diagrams and “explaining” the link between the shoulder and neck muscles is not appropriate either.[note: 71] Of course, I appreciate that the Defendant’s counsel did not question the doctors on this because she was operating under a mistake (see [24] above). But at the time of drafting closing reply submissions, she should have recognised that her case had not been put to the Claimant/experts properly, and written in to Court to explain the situation. If necessary, she should have requested for the doctors to be recalled. The cost of recalling the doctors would naturally have had been the price to pay for her lapse (see [25] above). As such, I am simply unable to accept this argument - it has never been tested at assessment and I am not prepared to venture my own medical opinion on this matter. I am not a doctor either.

57     Turning to the assessment proper, the starting point for the bilateral trapezius strain is the Guidelines. The applicable range is below $2,000. This translates to less than $2,600 once inflation is taken into account. I assess damages at $800 for the following reasons:

(a)     The injury was mild and appeared to have fully resolved 10 days after the accident. Indeed, when the Claimant visited Intemedical Kovan on 12 June 2022, there were no records or complaints of any shoulder related pain.[note: 72]

(b)     There were no residual disabilities or any suggestion that treatment was necessary specifically for the trapezius strain. It appears that he was treated conservatively with “medications”[note: 73] and the injury, thankfully, ran its natural course fairly quickly.

58     I recognise that the strain was experienced on both shoulders and have therefore seen fit to price this injury higher than say, a single contusion which ordinarily sounds in about $500 of damages according to the Guidelines ($650 by modern standards). Accordingly I assess damages at $800.

Forehead Contusion

59     The Defendant’s argument was baseless and improper: baseless, because it offered an entirely speculative hypothesis (“Although a diagnosis of contusion to forehead was made, it was probably on account of the feedback of patient of a knock, which the doctor accepted to treat at best”);[note: 74] and improper, because the argument lacked any credible medical authority. It was entirely inappropriate for the Defendant to recharacterise the medical evidence by adding her own gloss, especially when that theory had never been suggested at the assessment, nor specifically put to the doctors or the Claimant. Recasting the evidence in that manner was unfaithful to the actual diagnosis made by Dr Chang i.e. that there had indeed been a forehead contusion.[note: 75] Even if the Defendant’s suggestions were accepted, the conclusion urged on the Court (to award $0 for this head of claim) simply did not follow. I reject the Defendant’s arguments entirely.

60     I accept that the Claimant suffered a forehead contusion. This much was clear from the undisputed diagnosis in Dr Chang’s report.[note: 76] The starting point for a single contusion is $500 according to the Guidelines. Adjusted for inflation, that would come up to $650. I agree with the Claimant that not all contusions are the same.[note: 77] A contusion on the head, an especially vulnerable part of the body, can credibly be accepted as being more alarming and worthy of compensation than say, a contusion on the little finger of a non-dominant hand. The Guidelines do not allow for that nuance and do not acknowledge that distinction. The Court, however, can. I grant an uplift of $150 accordingly, and assess damages at $800.

61     I have tempered this uplift on account of the fact that the forehead contusion was mild and there was no mention of it in medical reports after 12 June 2022. Much like the bilateral trapezius sprain, the treatment was conservative as well. For these reasons, I did not find it appropriate to grant any more of an uplift than $150. Needless to say, I reject the Defendant’s alternative submission of $300 – premised on the suggestion that this was no more than a “knock”[note: 78] – which was shorn of any evidential basis, heedless to the Guidelines’ benchmarks, and never put to the Claimant at assessment. I repeat my observations at [56] above.

Left Wall Chest Contusion

62     I reject the Defendant’s submission but accept her alternative submission. The Defendant’s main submission seeks to undermine Dr Chang’s report. The report did not document any examination of the chest, and there were no X-Rays ordered either. Dr Chang’s diagnosis of a left wall chest contusion therefore cannot be trusted, so the argument goes.[note: 79] I reject this argument for similar reasons as what I have stated above at [56].

63     However, I accept that the seemingly applicable range in the Guidelines ($1,000 for contusions to the chest) is deceptive and ought not to be followed in the present case. According to the endnotes in the Guidelines, the figure of $1,000 is based on Raveendran v Chong Suiew Foo Suit No 2123 of 1986 (High Court), an unreported case found at p 506 of the Practitioner’s Library. That case involved a horrific accident involving serious damage to the chest area and the lung contusion sounded in $1,000. Accordingly, I agree with the Defendant that the Guidelines intended for $1,000 to represent contusions experienced on internal organs in the chest area, rather than superficial bruising that happens to be on the chest. The starting point therefore ought to be the usual $650 (for contusions simpliciter), and I see no reason to grant any further uplift to that figure. The Claimant has not offered any special reasons for an uplift, and the mild injury resolved uneventfully by 12 June 2022.

Stage 2 – whether an uplift/discount is necessary upon holistic consideration of the case

64     I did not see any need for a further uplift. This was not a situation where the total pain and suffering was greater than the sum of its parts, and neither was it a situation where the component approach failed to account for more generalised pain/suffering inestimable by reference to specific injuries (see for example, Asher David at [62]). I did not see a need for a discount either. This was not a situation where the pain and suffering experienced from the injuries otherwise overlapped (see for example, Asher David at [64]), or where the pure application of the component approach would lead to overcompensation.

General damages - loss of earning capacity

The applicable legal principles

65     Turning to the claim for loss of earning capacity, the authorities suggest that there are three different tests for loss of earning capacity:

(a)     In situations where a plaintiff remains in the same line of work before and after the accident (and up to the time of assessment), the test in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”) applies. This involves a cumulative two-stage test: first, the Court determines whether there is a “a substantial or real risk that the [plaintiff/claimant] could lose his or her present job at some time before the estimated end of his or her working life”; if yes, the Court assesses whether the plaintiff/claimant “will, because of the injuries, be at a disadvantage in the open employment market” (see Samuel Chai at [36]).

(b)     In situations where a plaintiff/claimant is unemployed at the time of trial or assessment, the only requirement is for the plaintiff to show that he will be at a competitive disadvantage in the open labour market due to his injuries: Mykytowych, Pamela Jane v V I P Hotel [2016] 4 SLR 829 (“Mykytowych”) at [139].

(c)     In situations where a plaintiff/claimant has lost a better, higher-paying pre-accident job because of his injuries and is compelled to take up a different, lower-paying post-accident job, he/she will only need to show that he/she will be at a disadvantage in competing for his/her higher-paying pre-accident job because of the injuries (see Lua Bee Kiang at [50] and the rationalisation of Lua Bee Kiang in Islam Mohammad Rakibul v Masud and another [2022] SGDC 270 (“Rakibul”) at [84]).

66     Different tests apply in different situations because the plaintiff/claimant’s exposure to financial risk differs, depending on his/her employment situation at the time of assessment. If one remains employed at their pre-accident job, the risk of financial damage is somewhat more muted. The plaintiff/claimant still remains employed and is shielded from the vicissitudes of the open market until such time as he/she is fired. That is why the Court imposes a threshold requirement that the plaintiff/claimant must first prove a substantial risk of losing his/her job before the estimated end of his or her working life. In other cases, the plaintiff/claimant has already lost his/her job and is now either unemployed or settling for a less demanding (and lesser paying) job. In those situations, there is no need to impose a threshold requirement – it would have already been met in any case. The plaintiff/claimant need only prove that he/she will be at a competitive disadvantage in the open labour market (if he/she is unemployed), or in competing for his/her previous higher-paying pre-accident job (if he/she is presently employed at a lesser-paying job). These reasons have been lucidly canvassed in greater detail by the learned deputy registrar in Rakibul at [70] – [87], and I have summarised that elsewhere in Asher David at [70] – [73].

67     Here, the applicable test would be Samuel Chai’s two-step test (see [65(a)] above), since the Claimant remains at his same pre-accident jobs even after the accident. He continues to work as a real estate agent and a part-time private hire driver. The key issue centres on whether he has demonstrated “a substantial or real risk that [he] could lose his or her present job at some time before the estimated end of his or her working life” (“threshold requirement”).

68     The threshold requirement appears to apply with some modifications in the context of self-employed claimants. Claimants are only expected to show that there is “real risk that [they] would lose the ability to sustain [their business]”: Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 169 (“Tan Teck Boon”) at [46]. Tan Teck Boon’s plaintiff was a sole proprietor providing courier services for companies like DHL Express (Singapore) Pte Ltd (“DHL”). Together with one employee, the plaintiff personally carried out courier assignments. The plaintiff then suffered a road traffic accident. In assessing the plaintiff’s damages for loss of earning capacity, the High Court applied the Samuel Chai test, and found that there was a “real risk that [the plaintiff] would lose the ability to sustain” his business”. The business was “highly dependent” on contracts with DHL, and DHL testified that the “plaintiff’s inability to personally drive/meet customers would be a factor relevant in the renewal of the DHL contract”: Tan Teck Boon at [46]. The Court accepted that the risk was real despite the fact that DHL had renewed the plaintiff’s contract twice after the accident, and despite the fact that the contract was renewed after the plaintiff could no longer personally deliver goods: Tan Teck Boon at [46].

69     This modified threshold requirement makes sense for two reasons:

(a)     First, the threshold requirement, as originally formulated, assumes a traditional employer and employee model where one might be conceivably let go from his/her job. That does not apply to the self-employed. Indeed, it is odd to speak of self-employed persons being fired from the very businesses they operate/own (see also Long Hean Kuang v Thomson Catering & Enterprises Pte Ltd and anor [2023] SGDC 243 at [46]).

(b)     Second, the modified threshold requirement still conforms with the rationale for imposing a threshold requirement. The threshold requirement is imposed to satisfy the Court of a credible possibility that the competitive disadvantage will indeed occasion financial damage at some point in the future: Rakibul at [76]. In the context of self-employed persons, that financial damage takes a different form. Instead of being fired and thrown into the open market, the financial threat would involve potentially losing the ability to sustain the business. That damage need not be complete or crippling. As the facts of Tan Teck Boon show, this modified threshold requirement can be satisfied even if the business is not facing existential threat.

70     In my view, the same modified threshold requirement may, depending on the facts, apply to those who are employed in commissions-based jobs as well. For some, they would largely have the autonomy to carry out their work as they deem fit, much like someone self-employed. A large part of their remuneration may be commission based, and they would essentially be operating independently, save that it is under the banner of another company. The risk of financial damage comes less from the prospect of being fired for under-performing, and more from simply being unable to drum up enough business for himself/herself. For others, they may not enjoy such independence. They may be regularly monitored, have sales targets to meet, have key performance indicators to fulfil, and essentially be reliant on their employer’s evaluations/operational needs for continued employment. They are unmistakably employees of the company, save that their remuneration is structured with a commission component. The sort of financial damage that they might face would be the one that any employee faces and ought to be assessed using the threshold requirement in its original formulation.

71     The Claimant falls in the former category and the applicable test for loss of earning capacity is the Samuel Chai test, as modified in Tan Teck Boon. The Claimant is a real estate agent and a private hire driver. He has the autonomy to pursue deals as he wishes, and to drive for as many hours as he wishes. The financial damage he might face comes not from the prospect of Propnex letting him go, or Grab firing him (assuming Grab or Propnex can even be credibly called his employers at all), but from the fact that he can no longer close deals and drive passengers as well as before.

The Claimant is entitled to his claim for loss of earning capacity with regard to his real estate job, but not his private hire driving

72     Applying the modified threshold requirement, I find that the Claimant does not face a real risk of losing his ability to sustain his private hire driving, but that he faces a real risk of losing his ability to sustain his job as a real estate agent.

73     For his private hire driving, the Claimant made clear that he took on the job for a clear and singular purpose – to cover the rental costs of his car (“if I cover my rental I will call it a day”).[note: 80] So understood, it does not appear that the accident – or any injury arising from that – will seriously affect his ability to drive the (modest) amount that he wants to drive. Indeed, he confirmed that he was “well enough to drive” as early as January 2023.[note: 81] There was no testimony – other than a vague suggestion that the injuries have “affected and [are] still affecting his] daily and working activities” – to the effect that he would no longer be able to drive enough to cover the rental costs of his car. That being the case, I do not find that there is any real risk of him losing his ability to sustain his job as a part-time private hire driver.

74     For his real estate work, I accept that there is a risk the Claimant will not be able to sustain his business, at least at pre-accident levels. True, Dr Ng specifically mentioned that the Claimant “has been back to work without any major issues or complaints.”[note: 82] But equally true is that his evidence – that he had to reduce meetings on account of his pain[note: 83] - was never challenged at the assessment either. In fact, the Claimant continues to suffer from intermittent pain – pain which is severe enough to require prescription medication rather than over-the-counter drugs[note: 84] – and experiences it till this day.[note: 85] That is consistent with Dr Ng’s suggestions that “there may be an increased risk of pain, discomfort and restriction of movement in [the Claimant’s] neck and lower back region” in the years to come,[note: 86] and that the Claimant “may have more pain and discomfort when he works” since he has to “walk around a lot for his job”.[note: 87] I am particularly mindful of two other concerns as well:

(a)     The intermittent pain directly implicates his ability to function effectively as a real estate agent. His job involves a high amount of uncertainty (“you never know whether you can close the deal”).[note: 88] It requires a certain measure of readiness – a readiness to seize opportunities, to take advantage of economic tailwinds (e.g bull run years in the market[note: 89]), and to dynamically respond to any potential prospects. The Defendant acknowledges this too.[note: 90] The Claimant fares poorer now, as he is unable to be reliably ready to take advantage of these opportunities as and when they present themselves.

(b)     For those in commissions-based jobs like the Claimant, the risk of financial damage is live and present when they are injured, even if their livelihood is not under existential threat. Doubtlessly, that risk (of financial damage) arises at least in part because of the nature of the plaintiff’s/claimant’s work. But that alone cannot exculpate a defendant – the defendant must take the “victim” as it finds him: Loh Siew Keng v Seng Huat Construction Pte Ltd [1998] SGHC 197 at [164], citing Smith v. Leech Brain [1962] 2 QB 405.

For these reasons, I find that there is a real risk of the Claimant not being able to sustain his business as a real estate agent, at least at pre-accident levels.

75     Real as the risk might be, I assess the risk conservatively. Ultimately, the Claimant has returned to his job and there was no real evidence led about the precise effect/manner in which the injury will implicate his work as a real estate agent. The pain, though present, is either intermittent or not excruciating enough to demand total disengagement from work. And beyond this, Dr Ng has specifically stated that the Claimant “has been back to work without any major issues or complaints” (emphasis mine).[note: 91] Therefore, the evidence marshals itself into one conclusion: there is lingering pain which haunts the Claimant’s ability to work, but not debilitatingly so. Unfortunately, the precedents (both those offered by counsel, and my independent survey of the Practitioner’s Library) do not offer a useful comparator in pricing this loss. The best I can do is assess the loss of earning capacity in broad strokes – the haze of pain that fogs an otherwise unclouded mind at work; the pressures of having to close the deal without surrendering to pain; and the anxiety of anticipating erratic (i.e. uncertain) episodes/experiences with pain at work. I price this modestly at $2,000.

76     For completeness, I should mention that the Claimant acknowledged that he was a director/shareholder of a few companies as well.[note: 92] But since he had never made any claims for loss of earning capacity, and since it was reasonably clear that he did not play active roles in these companies anyway (“just checking monthly company records, on and off”;[note: 93] “I have no knowledge of accounts”;[note: 94] “live company but no role”[note: 95]), there was no need for me to seriously examine his shareholding/directorship in those companies.

Special damages

Medical expenses

77     The medical expenses are as follows:

S/N

Item

Sum ($)

Reference

1

Mount Alvernia – Medicine & Consultation (3 June 2022)

463.95

CBOD 105

2

Intemedical – Medicine & Consultation (6 June 2022)

$90.74

CBOD 106

3

Intemedical – Medicine & Consultation (12 June 2022)

$114.49

CBOD 107

4

Ardmore – Consultation (16 June 2022)

$171.20

CBOD 108

5

Ardmore – Medicine, MRI & Consultation (20 June 2022)

$2,884.75

CBOD 109

6

Ardmore – Consultation (22 July 2022)

$107

CBOD 110

7

Ardmore – Medicine & Consultation (16 August 2022)

$408.25

CBOD 111

8

Ardmore – Consultation (1 August 2022)

$107

CBOD 112

9

Ardmore – Medicine & Consultation (7 September 2022)

$407.70

CBOD 113

10

Ardmore – Plaster & Consultation (14 November 2022)

$136.45

CBOD 114

11

Ardmore – Consultation (16 December 2022)

$107

CBOD 115

12

Atlas – Physiotherapy (11 August 2022)

$180

CBOD 116

13

Atlas – Physiotherapy (22 August 2022)

$180

CBOD 117

14

Atlas – Physiotherapy (14 September 2022)

$180

CBOD 118

15

Atlas – Physiotherapy (5 October 2022)

$180

CBOD 119

16

Atlas – Physiotherapy (14 November 2022)

$180

CBOD 120

17

Atlas – Physiotherapy (22 November 2022)

$180

CBOD 121

18

Atlas – Physiotherapy (21 July 2022)

$220

CBOD 122

19

Ardmore – Medicine & Consultation (16 August 2023)

$408.25

CBOD 128

20

Aptus Surgery – Surgery bill

$34,324.70

CBOD 123 - 127



78     The Defendant accepts that she is liable to pay for S/N 1 – 19 above (totalling $6,706.78),[note: 96] but objects to paying for the surgery stated at S/N 20 above. In that regard, the Defendant does not take issue with the sufficiency of the evidence. Her main contention is that the surgery expenses were unreasonably incurred, considering that there may have been cheaper alternative treatments that were medically viable and proposed by Dr Lim.

79     The starting point, legally speaking, is that a plaintiff/claimant is entitled to act on the advice of his experts if such advice was taken in good faith from reputable practitioners: Rubens v Walker [1946] SC 215 at p 216, cited in the Practitioner’s Library at [2-10]. That is why the plaintiff/claimant is entitled to claim from the defendant medical expenses, even if it later transpires that the medical advice he/she acted upon was wrong and the medical treatment was unnecessary: Rubens v Walker [1946] SC 215 (cited with approval by Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 1 SLR(R) 490 at [14]). Having found that the surgery was indeed medically defensible, and that there was nothing untoward about the decision-making leading up to the surgery (see [44] – [45] above), I begin with the premise that the surgery’s medical expenses were indeed reasonable.

80     To this, the Defendant made three broad arguments, all of which I reject.

81      First, the Defendant suggested that judging by the literature, the surgery was not appropriate for the Claimant. To that end, Dr Lim produced four articles – two website printouts, and two from medical journals – which allegedly demonstrated that the surgery was (a) only appropriate for chronic as opposed to acute pain,[note: 97] (b) not appropriate to be pursued at first instance,[note: 98] and (c) not a permanent solution.[note: 99] The truth is, none of these articles were directed towards, or indeed made any findings about the efficacy of the surgery when pursued early on, or the appropriate candidate for such a surgery. The website printouts were merely generalised descriptions about the conditions which can be treated with such a surgery, and were at best, general statements about the usual candidates/circumstances that warrant such a surgery.[note: 100] Nothing, much less any scepticism, was expressed about the efficacy of pursuing the surgery at an earlier point in the patient’s journey with pain. The medical articles were similarly directed towards answering an entirely different question. One was a “systematic review of randomized controlled trials”, aimed at determining “the efficacy of [the surgery] for chronic low back pain”.[note: 101] The other was a generalised study “to survey current clinical practice related to [the surgery]”.[note: 102] Again, these studies said nothing about whether the surgery was inappropriate/ineffective when pursued early on. And naturally, none of them discussed whether in specific circumstances, a doctor might credibly recommend the surgery for non-chronic pain. The furthest that the journals suggested was that the surgery was generally pursued for chronic pain, perhaps after other conservative measures have failed to yield results. This was not enough to convince me that the surgery was so out of step with scientific norms as to warrant scepticism or disapproval from the Court. Indeed, one of the medical studies confirmed that the surgery was “an efficacious treatment […] demonstrating statistically significant pain reductions”.[note: 103]

82      Second, the Defendant claimed that the Claimant’s reasons for pursuing the surgery were not reasonable. At least part of the Claimant’s consideration was that “because he [was] unemployed, he [was] not sure if he [wanted] a second surgery”[note: 104] (which was a possibility if the Claimant had adopted Dr Lim’s alternative approach). The Defendant’s submission was that “the concern of claimant that he could face downtime of 2nd round of surgery […] is not reasonable”.[note: 105] I disagree. That is perfectly reasonable. The Claimant is perfectly entitled to weigh the downsides of a potential return surgery, and to accord it weight when electing between surgical options. Moreover, as Dr Ng observed, every additional surgical operation represented risks (“another operating theatre session, another anaesthetic session etc.”).[note: 106] Dr Ng also suggested the surgery given that the Claimant was in a high amount of pain (“His pain to me was very bad”)[note: 107] These too, were legitimate considerations that spoke to the reasonableness of the decision.

83      Third, the Defendant argued that the surgery was not effective and for that reason, was not reasonably pursued.[note: 108] I acknowledge that the surgery has not produced a total and permanent solution for the Claimant’s back pain. But “the recoverability of expenses for medical treatment cannot be dependent on its success. For one thing, the success of a particular treatment has little, if any, relation to whether that treatment was reasonably undertaken.”: Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209 at [40]. Indeed, there may be any number of reasons why a surgical procedure, even if pursued reasonably may not yield results. No doctor promises silver bullets and the Court should not realistically expect that either. As explained earlier (at [82] and [44] above), the Claimant and Dr Ng made the call given the information they had and after a considered discussion of the trade-offs associated with the decision. Indeed, even one of Dr Lim’s articles suggested that the surgery “can provide lasting relief”.[note: 109]

84     I am therefore fortified in my belief that the surgery expenses were reasonable and award that accordingly.

Transport expenses

85     Given that there were 19 round trips, the parties agree that $570 ($30 x 19) is fair.[note: 110] I see no reason to disturb that agreement and similarly agree that it is fair.

Pre-trial loss of earnings

86     As a starting point, the Claimant was issued medical certificates for the following period, representing about 5.5 months out of work between June and mid-December 2022 :

(a)     3 – 7 June 2022 (5 days);[note: 111]

(b)     6 – 10 June 2022 (5 days, with 2 days overlapping with another medical certificate);[note: 112]

(c)     12 – 16 June 2022 (5 days);[note: 113]

(d)     16 June – 23 June 2022 (8 days, with 1 day overlapping with another medical certificate);[note: 114]

(e)     24 June 2022 – 20 July 2022 (27 days);[note: 115]

(f)     21 July 2022 – 26 July 2022 (6 days);[note: 116]

(g)     26 July 2022 – 15 August 2022 (21 days, with 1 day overlapping with another medical certificate);[note: 117]

(h)     16 August 2022 – 1 September 2022 (17 days);[note: 118]

(i)     2 September 2022 – 2 November 2022 (62 days);[note: 119]

(j)     3 November 2022 – 13 November 2022 (11 days);[note: 120]

(k)     14 November 2022 – 16 December 2022 (33 days);[note: 121]

87     However, I am reluctant to take June 2022 – mid-December 2022 as the period of loss of pre-trial earnings for two reasons. First, the Claimant did in fact enjoy commissions during that period. Save for October 2022, he earned anywhere between $8,424 to $16,467.98 a month during that period.[note: 122]Second, the Claimant acknowledged candidly that though the medical certificates ran till December 2022, he resumed work “on and off” from November 2022.[note: 123]

88     The fairer way to approximate his loss would be to examine when the effects of his time away from work manifested themselves. That is because a real estate agent would ordinarily only enjoy the fruits of his labour a few months after the completion of the sale/purchase. For example, an option that was exercised and accepted on 12 March 2022,[note: 124] only resulted in a payday later on 3 June 2022.[note: 125] Similarly, an option exercised and accepted on 23 March 2022[note: 126] only resulted in commissions being paid out on 9 June 2022.[note: 127] When one compares the commission payout dates[note: 128] against the actual date that transactions were completed,[note: 129] one can credibly estimate a lag time of approximately 3 to 4 months. By extension, I am willing to estimate that his inability to work between June and November 2022 would have begun manifesting in lost commissions sometime in October 2022 (four months from June 2022) up till March 2023 (four months from November 2022). Indeed, October 2022 was the first month after the accident that the Claimant received $0 in monthly income,[note: 130] and the Claimant was receiving zero commissions from January 2023 - April 2023.[note: 131] I choose not to recognise his lack of income in April 2023 as a loss attributable to the accident since there is not enough statistical data to convince me that this was something more than an ordinary ‘low’ period in a real estate agent’s profession. Indeed, the Claimant regularly experienced zero-income months, even prior to the accident.[note: 132] So understood, I take the period of loss as roughly 6 months between October 2022 to March 2023.

89     The Claimant’s average monthly income as a real estate agent, after deducting for expenses) in the period preceding the accident (2019 – May 2022) was $7,367.98 (i.e. ($1,974[note: 133] + $113,455[note: 134]+ $100,318[note: 135] + $86,340[note: 136]) divided by 41 months). I recognise that there was an over-representation of “bull-run” years in this data set since the Claimant himself acknowledged that the years 2020 and 2021 were bull run years.[note: 137] Moreover, the Claimant acknowledged that there were certain months in those years where particularly lucrative deals were closed, netting him $62,545.53 or $78,552.35 a month (representing almost ten times of the monthly average income).[note: 138] That being the case, I was not inclined to simply take the average monthly income of $7,367.98 at face value. A more realistic view of his monthly income ought to accept that the bull and bear years should, on average, even out. Bearing that in mind, and recognising that there was no evidence that the period that he was out of work was a similarly lucrative period for a real estate agent, I apply a 20% discount to his average monthly salary. That sounds in a final figure of $5,894.38 as his monthly average income.

90     Putting these two figures together, 6 months x $5,894.38 comes up to $35,366.28‬ in lost income as a real estate agent.

91     As for his claims for lost income as a private hire driver, I am not minded to give any award for that. The truth is, the Claimant saw his private hire driving earnings primarily as a form of cost-recovery rather than an additional stream of income. Indeed, the Claimant candidly acknowledged that he only drove enough to cover his rental costs of the car. [note: 139] There being no evidence of him having rented a car during the period he was recovering, I do not imagine that there was any loss (in the sense of not being able to recover the cost of the car rental) in any meaningful way. Making an award for this lost “income” would therefore represent a potential windfall for the Claimant, and would be unfair to the Defendant. For that reason, I decline to make an award for the same.

Conclusion

92     The usual interest of 5.33% p.a. from the time of writ till date of judgment is to apply to the general damages. Similarly, the usual interest of 2.67% p.a. from the time of accident till the date of judgment is to apply to the special damages. The parties are to confer on costs. If agreement cannot be reached, parties are to write in by 15 October 2024 with cost submissions limited to 2 pages each (excluding cover pages and annexes).

[note: 1]DC/ORC 612/2023.

[note: 2]Assessment Case Conference dated 17 January 2023

[note: 3]Assessment Case Conference dated 15 February 2024

[note: 4]Defendant’s Closing Submissions dated 23 March 2024 (“DCS”) at [5] and Defendant’s Reply Submissions dated 1 April 2024 (“DRCS”) at [3]

[note: 5]DCS at [83].

[note: 6]DRCS at [20]

[note: 7]See https://eservices.mas.gov.sg/statistics/calculator/GoodsAndServices.aspx

[note: 8]Claimant’s Affidavit Evidence-in-Chief dated 14 March 2023 (“AEIC”) at p 90.

[note: 9]AEIC at p 92.

[note: 10]AEIC at p 93.

[note: 11]Notes of Evidence dated 19 December 2023 (“NEs 19 Dec 2023”) at p 21E.

[note: 12]AEIC at p 96.

[note: 13]AEIC at p 96.

[note: 14]NEs 19 Dec 2023 at p 24B.

[note: 15]NEs 19 Dec 2023 at p 8C.

[note: 16]NEs 19 Dec 2023 at p 8E.

[note: 17]NEs 19 Dec 2023 at p 23A.

[note: 18]AEIC at p 96.

[note: 19]Nes 19 Dec 2023 at p 22E.

[note: 20]NEs 19 Dec 2023 at p 14B.

[note: 21]NEs 19 Dec 2023 at p 23A.

[note: 22]NEs 19 Dec 2023 at p 22B.

[note: 23]Notes of Evidence dated 18 October 2023 (“NEs 18 Oct 2023”) at p 10C.

[note: 24]NEs 18 Oct 2023 at p 11B.

[note: 25]Claimant’s Bundle of Documents (“CBOD”) at p 88.

[note: 26]NEs 18 Oct 2023 at p 10E.

[note: 27]NEs 18 Oct 2023 at p 10D.

[note: 28]NEs 18 Oct 2023 at p 10E.

[note: 29]NEs 18 Oct 2023 at p 9B.

[note: 30]DCS at [56(ix)].

[note: 31]DCS at [56(ix)].

[note: 32]DCS at [56(iii)] and [56(iv)].

[note: 33]DCS at [56(viii)].

[note: 34]CBOD at p 84.

[note: 35]CBOD at p 87.

[note: 36]CBOD at p 84.

[note: 37]NEs 19 Dec 2023 at p 7A.

[note: 38]NEs 19 Dec 2023 at p 6E.

[note: 39]CBOD at p 88.

[note: 40]DCS at [56xi].

[note: 41]CBOD at p 84.

[note: 42]CBOD at p 122.

[note: 43]NEs 19 Dec 2023 at p 12C

[note: 44]DCS at [56xv].

[note: 45]CBOD at p 128.

[note: 46]NEs 19 Dec 2023 at p 8B.

[note: 47]CBOD at pp 105 – 109.

[note: 48]Defendant’s Bundle of Documents (“DBOD”) at p 5.

[note: 49]NEs 19 Dec 2023 at p 9B – C.

[note: 50]NEs 19 Dec 2023 at p 23D.

[note: 51]NEs 19 Dec 2023 at p 9A.

[note: 52]NEs 19 Dec 2023 at p 14.

[note: 53]NEs 19 Dec 2023 at p 14C – E.

[note: 54]NEs 19 Dec 2023 at p 13C (for Dr Lim) and 8B (for Dr Ng).

[note: 55]NEs 19 Dec 2023 at p 7A.

[note: 56]See for example, references to the Singapore Medical Council’s standards, “standard” diagnostic tools for pain assessment, and the preferability of having a physiotherapist instead: DCS at [56ii], [56ix] and [56xii].

[note: 57]DCS at [56sviii]

[note: 58]DCS at [65].

[note: 59]NEs 18 Oct 2023 at p 9B.

[note: 60]NEs 19 Dec 2023 at p 22A.

[note: 61]CBOD at p 84.

[note: 62]CBOD at p 84.

[note: 63]CBOD at p 88

[note: 64]Claimant’s Closing Submissions (“CCS”) at [17]

[note: 65]DCS at [28]

[note: 66]CCS at [18].

[note: 67]DCS at [29].

[note: 68]DCS at [32].

[note: 69]DCRS at [8].

[note: 70]DRCS at [5].

[note: 71]DRCS at [7]

[note: 72]CBOD at p 83.

[note: 73]CBOD at p 83.

[note: 74]DRCS at [9].

[note: 75]CBOD at p 83.

[note: 76]CBOD at p 83.

[note: 77]CCS at [37].

[note: 78]DCS at [14].

[note: 79]DCRS at [15].

[note: 80]Notes of Evidence dated 9 January 2024 (“NEs 9 Jan 2024”) at p 14C.

[note: 81]NEs 9 Jan 2024 at p 17E.

[note: 82]CBOD at p 88.

[note: 83]AEIC at [11].

[note: 84]CBOD at p 128.

[note: 85]NEs 18 Oct 2023 at p 8E and 10E

[note: 86]CBOD at p 85.

[note: 87]CBOD at p 85.

[note: 88]NEs 9 Jan 2024 at p 13E.

[note: 89]NEs 9 Jan 2024 at p 12D.

[note: 90]DCS at [149].

[note: 91]CBOD at p 88.

[note: 92]NEs 9 January 2024 at p 14B and 17E.

[note: 93]NEs 9 January 2024 at p 16B.

[note: 94]NEs 9 January 2024 at p 16C.

[note: 95]NEs 9 January 2024 at p 17B.

[note: 96]DCS at [83]

[note: 97]DCS at [100(a) - (b)]

[note: 98]DCS at [100(c)]

[note: 99]DCS at [112]

[note: 100]Defence Exhibits “D1” and “D2”.

[note: 101]Defence Exhibit “D3”

[note: 102]Defence Exhibit “D4”

[note: 103]Defence Exhibit “D3”

[note: 104]NEs 19 December 2023 at p 23D.

[note: 105]DCS at [107].

[note: 106]NEs 19 December 2023 at p 9C.

[note: 107]NEs 19 December 2023 at p 23D.

[note: 108]DCS at [109] – [114].

[note: 109]Defence Exhibit “D1”

[note: 110]DRCS at [20] and CCS at [50].

[note: 111]CBOD at p 93.

[note: 112]CBOD at p 94.

[note: 113]CBOD at p 95.

[note: 114]CBOD at p 96.

[note: 115]CBOD at p 97.

[note: 116]CBOD at p 98.

[note: 117]CBOD at p 103.

[note: 118]CBOD at p 99.

[note: 119]CBOD at p 100.

[note: 120]CBOD at p 101.

[note: 121]CBOD at p 102.

[note: 122]CBOD at p 136.

[note: 123]NEs 18 October 2023 at 11E.

[note: 124]CBOD at p 149.

[note: 125]CBOD at p 137.

[note: 126]CBOD at p 159.

[note: 127]CBOD at p 137.

[note: 128]CBOD at p 137.

[note: 129]See CBOD at p 162 onwards

[note: 130]CBOD at p 136.

[note: 131]CBOD at p 139.

[note: 132]CBOD at p 135.

[note: 133]CBOD at p 5.

[note: 134]CBOD at p 10.

[note: 135]CBOD at p 15

[note: 136]DBOD at p 9.

[note: 137]NEs 9 Jan 2024 at p 12D.

[note: 138]CBOD at p 135.

[note: 139]NEs 9 Jan 2024 at p 14C.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Theft","Criminal Procedure and Sentencing – Sentencing – Enhanced Sentences for Breaching Conditional Remission Order"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No DAC-909291-2021 and 15 Others, Magistrate's Appeal No 9169-2024-01","title":"Public Prosecutor v Muhammad Danial Bin Jesman","citation":"[2024] SGDC 256","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32240-SSP.xml","counsel":["Norman Yew (Attorney-General's Chambers) for the Public Prosecutor","Leonard Chua Jun Yi (Damodara Ong LLC) for the Defendant (Plea of Guilt and Mitigation)","Ng Jeanny (Jeanny Ng) for the Defendant (Further Mitigation Plea)."],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Kessler Soh","html":"Public Prosecutor v Muhammad Danial Bin Jesman

Public Prosecutor v Muhammad Danial Bin Jesman
[2024] SGDC 256

Case Number:District Arrest Case No DAC-909291-2021 and 15 Others, Magistrate's Appeal No 9169-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kessler Soh
Counsel Name(s): Norman Yew (Attorney-General's Chambers) for the Public Prosecutor; Leonard Chua Jun Yi (Damodara Ong LLC) for the Defendant (Plea of Guilt and Mitigation); Ng Jeanny (Jeanny Ng) for the Defendant (Further Mitigation Plea).
Parties: Public Prosecutor — Muhammad Danial Bin Jesman

Criminal Procedure and Sentencing – Sentencing – Theft

Criminal Procedure and Sentencing – Sentencing – Enhanced Sentences for Breaching Conditional Remission Order

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9169/2024/01.]

30 September 2024

District Judge Kessler Soh:

Introduction

1       Muhammad Danial Bin Jesman is 32 years old.

2       He has a long history of offending, mainly for theft and other property-related offences. He was ordered to undergo probation in 2003 and 2004, ordered to reside for two years in a Juvenile Home in 2008, sentenced to reformative training in 2011, sentenced to 18 months’ imprisonment in 2014, sentenced to three years’ imprisonment in 2016. In 2018, he was found guilty of another string of theft offences and eventually sentenced to a total of 42  months’ imprisonment and an enhanced sentence of 224 days’ imprisonment for breaching a conditional remission order (“CRO”) under the Prisons Act (Cap 247, Rev Ed 2014) (“Prisons Act”).

3       For this last series of offences, he was released on 27 March 2021 under another CRO. Under this fresh CRO, he was not to commit any fresh offence during the period from 27 March 2021 to 30 April 2022. However, he breached the condition soon after by committing a fresh spate of offences between April and September 2021.

4       16 charges were subsequently brought against him. Most were offences of theft under s 380 of the Penal Code (Cap 224, Rev Ed 2008) (“Penal Code”). He pleaded guilty on 31 January 2023 to nine charges, with the remaining seven offences taken into consideration for sentencing. Various sentencing options were considered, including a mandatory treatment order (“MTO”) and corrective training (“CT”). Eventually, on 26 August 2024, he was sentenced to a total of 50 months’ imprisonment, and an enhanced sentence of the maximum of 391 days’ imprisonment for his breach of the CRO. He filed the present appeal against the sentence on 30 August 2024. He is serving the sentence.

5       The grounds of my decision on the sentence are set out below.

Plea of guilt

Proceeded charges

6       The defendant pleaded guilty to nine charges, which are set out below in the order in which the offences were committed:

DAC-911328-2021

You […] are charged that you, on 5 April 2021, at about 6.58pm, at Remax located at Westgate, 3 Gateway Drive #03-13, Singapore, a building used for the custody of property, did commit theft of [a smart watch and a portable speaker] with a total value of $328.90, in the possession of one Yap Siew Fong, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-911329-2021

You […] are charged that you, on 9 April 2021, at about 4.29pm, at “Laptop Factory Outlet” located at 200 Victoria Street Bugis Junction #03-26, Singapore, a building used for the custody of property, did commit theft of one Apple Macbook Air valued at $1,299, in the possession of one Nor Lih Shazzuany, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-911330-2021

You […] are charged that you, on 30 April 2021, at about 5.23pm, at “Oui Click” located at 107 North Bridge Road, #03-12 Funan, Singapore, a building used for the custody of property, did commit theft of one white DJI Mavic Air Fly More drone valued at $1,449, in the possession of one See Eng Teck, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-909314-2021

You […] are charged that you, on 2 May 2021 at about 5.08pm, at Challenger in 313@Somerset located at 313 Orchard Road #04-01/02, Singapore, a building used for the custody of property, did commit theft of one red and blue Nintendo Switch gaming console valued at $499, in the possession of one Wong Chee Kit and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-917037-2021

You […] are charged that you, on 2 May 2021, at about 7.32pm at “British Essential” located at 10 Tampines Central 1 #03-02 Tampines One, Singapore, a building used for the custody of property, did commit theft in dwelling of one 100ml bottle of “Versace Dylan Blue (Men)” valued at $69.60 and one 100ml bottle of “Burberry Touch (Men)” valued at $49.90 in the possession of Lim Kong Hwee, and you have thereby committed an offence punishable under section 380 of the Penal Code, Chapter 224 (2008 Rev. Ed.). […]

DAC-909291-2021

You […] are charged that you, on 17 May 2021, at about 7.24pm, at Popular Bookstore in PLQ Mall located at 10 Paya Lebar Road #03-01 to #03-03, Singapore, a building used for the custody of property, did commit theft of [earpieces] with a total value of $436, in the possession of one Chan Kin Yong, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-916277-2021

You […] are charged that you, on 6 June 2021 at about 8.55pm, at Best Denki in Ngee Ann City located at No. 391 Orchard Road, Singapore, a building for the custody of property, did commit theft of one white Sonos Beam soundbar valued at $699, which was in the possession of one Nor Ismail Bin Ariffin, and you have hereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-913618-2021

You […] are charged that you, on 11 July 2021 at about 9.53 p.m, at Cow Play Cow Moo (“CPCM”) located at No. 3 Temasek Boulevard #03-372 Suntec City Mall, Singapore, a building used for the custody of property, did commit theft of [two iPads and 4,000 pieces of CPCM vouchers with a total value of at least $180,000] with a total value of at least $181,378, in the possession of one Fu An, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-916293-2021

You […] are charged that you, on 18 August 2021, at about 11.47pm, at Mustafa Centre located at Blk 145 Syed Alwi Road, Singapore, a building used for the custody of property, did commit theft of [various items] with a total value of $4,932.70, in the possession of one Logkesh Maniam, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

Facts

7       The salient facts were as follows.[note: 1]

5 April 2021: Theft of watch, speaker ($328.90)

8       On 5 April 2021 at about 6.51 pm, the defendant visited “Remax”, an electronics store located at Westgate (3 Gateway Drive).

9       At a secluded corner of the store, he took a smart watch (Model: RL-EP09) valued at $49.90. After checking that no one was looking at him, he placed it inside his plastic bag with a view to taking it out of the store without paying for it. After that, he continued to loiter about in the store. At about 6.56 pm, he returned to the secluded corner and took a JBL Charge 4 portable speaker valued at $279. After checking that no one was looking at him, he placed it inside his plastic bag. He left the store at about 6.58 pm with both items without paying for them, intending to take the items dishonestly. (DAC-911328-2021)

10     The theft was discovered by the store manager, Yap Siew Fong, the next day. On 6 April 2021 at about 10.30 am, Yap performed a stock check and discovered that the two items were missing. She reviewed CCTV footage of the store, which showed the defendant taking the two items. She lodged a police report later that night.

11     During investigations, the defendant denied visiting the store. It was only after the police showed him screenshots of the CCTV footage that he admitted to stealing the items from the store. Both items have not been recovered.

9 April 2021: Theft of Apple Macbook Air ($1,299)

12     On 9 April 2021, at about 4.27 pm, the defendant visited “Laptop Factory Outlet”, a computer store located at Bugis Junction (200 Victoria Street).

13     He was carrying a paper bag and loitered in the store. At about 4.29 pm, after checking that no one was looking at him, he took a box containing an Apple Macbook Air valued at $1,299 from a shelf. He hid behind a display table so that the other persons in the store could not see him as he placed the box inside his paper bag. After putting the box inside his paper bag, and making sure that no one was looking at him, he left the store quickly, intending to take the item dishonestly without paying for it. (DAC-911329-2021)

14     On 4 May 2021, the sales supervisor of the store, Nor Lih Shazzuany, discovered that the item was missing. She reviewed CCTV footage of the store, which showed the defendant taking the item. Subsequently, she informed the police about the theft. The item has not been recovered.

30 April 2021: Theft of drone ($1,449)

15     On 30 April 2021, at about 5.21 pm, the defendant visited “Oui Click”, an electronic camera store located at Funan Mall (107 North Bridge Road).

16     He took a box containing a white DJI Mavic Air Fly More drone valued at $1,449. After making sure that no one was looking at him, he left the store at about 5.23 pm and took the item dishonestly without paying for it. (DAC-911330-2021)

17     Later that day, at about 8 pm, a staff at the store, See Eng Teck, discovered that the item was missing. He reviewed CCTV footage of the store, which showed the defendant taking the item. He called the police to report the theft. The item has not been recovered.

2 May 2021: Theft of Nintendo Switch ($499)

18     On 2 May 2021, at about 5.02 pm, the defendant visited “Challenger”, an electronics store located at 313@Somerset (313 Orchard Road).

19     He took a red and blue Nintendo Switch gaming console valued at $499 from a shelf at the store. He walked to a secluded corner of the store. He removed the store’s electronic tagging placed on the item (so that the store’s sensors would not detect the item being taken out of the store) and placed the item into his bag. He left the store at about 5.08 pm and took the item dishonestly without paying for it. (DAC-909314-2021)

20     On 13 May 2021, a sales manager at the store, Wong Chee Kit, conducted a stock check and discovered that the item was missing. He reviewed CCTV footage of the store, which showed the defendant taking the item. Later that day, he informed the police about the theft. The item has not been recovered.

2 May 2021: Theft of perfume ($119.50)

21     On 2 May 2021, at about 7.29 pm, the defendant visited “British Essentials” a health and beauty store located at Tampines One (10 Tampines Central 1).

22     He was carrying a tote bag and a paper bag. He took a bottle of 100 ml “Versace Dylan Blue (Men)” valued at $69.60. He went to a relatively secluded area in the shop, turned his back towards a shop staff to obscure her view, and placed the item in his paper bag. Subsequently, he took a bottle of 100 ml “Burberry Touch (Men)” valued at $49.90. He went to the same secluded area in the shop, turned his back towards a shop staff to obscure her view, and put the item in his paper bag. He left the store at about 7.32 pm with the items and dishonestly took the items without paying for them. (DAC-917037-2021)

23     Later that day, the store staff discovered that the items were missing and reported the matter to the director of the store, Lim Kong Hwee. Lim reviewed CCTV footage of the store, which showed the defendant taking the items. Later that night, Lim informed the police about the theft of the items.

24     During investigations, the defendant denied committing the offence. The items have not been recovered.

25     The defendant was arrested on 12 May 2021. He was released on bail on the same day.

17 May 2021: Theft of earpieces ($436)

26     On 17 May 2021, at about 7.18 pm, the defendant visited “Popular Book Store” a books and electronics store located at PLQ Mall (10 Paya Lebar Road).

27     He was carrying a tote bag. At about 7.20 pm, after making sure that no one was looking at him, he opened the locks on a rack and took the following items (worth a total of $436) and placed them into his pocket and bag:

(a)     Two Phiaton Bolt earbuds, valued at $99 each;

(b)     One Sennheiser wireless earpiece, valued at $99; and

(c)     One Skullcandy BT earpiece, valued at $139.33.

He left the store at about 7.24 pm with the items, intending to take the items dishonestly without paying for them. (DAC-909291-2021)

28     On 18 May 2021, a store supervisor, Chan Kin Yong, discovered that the items were missing. He reviewed CCTV footage of the store, which showed the defendant taking the items. Later that day, he informed the police about the theft of the items. During investigations, the defendant admitted to stealing the items. The items have not been recovered.

29     On 18 May 2021, the defendant was arrested for the second time. He was kept in police custody until he was produced in court on 20 May 2021 and charged. He was released on bail that day. His parents instructed him not to leave their residence from 10 am to 10 pm daily.

6 June 2021: Theft of soundbar ($699)

30     On 6 June 2021, at about 8.45 pm, the defendant visited “Best Denki”, an electronics store located at Ngee Ann City (391 Orchard Road).

31     He took a box containing a white Sonos Beam sound bar (valued at $699). He left the store at about 8.55 pm with the item intending to take the item dishonestly without paying for it. (DAC-916277-2021)

32     Staff at the store later discovered the item missing. A review of the store’s CCTV footage showed the defendant taking the item. Subsequently, the police were informed about the theft of the item. During investigations, the defendant denied stealing the item. The item has not been recovered.

33     On 10 June 2021, the defendant was arrested for the third time. He was released on bail on the same day.

34     On 15 June 2021, the defendant was arrested for the fourth time. He remained in police custody until he was produced in court on 17 June 2021. On that day, he was remanded at the Institute of Mental Health (“IMH”) for observation, until 1 July 2021 when he was released on bail.

11 July 2021: Theft of iPads ($1,378) and arcade vouchers

35     On 11 July 2021, at about 9 pm, the defendant visited “Cow Play Cow Moo” (“CPCM”), a video game arcade cum electronics store located at Suntec City Mall (3 Temasek Boulevard). He visited the store with a friend. CPCM was divided into two sections: the video game arcade at the front and the electronics store at the back.

36     At about 9.35 pm, at the electronics store of CPCM, the defendant saw multiple cardboard boxes on the floor. After making sure that no one was looking at him, he carried one box to a corner of the store, in front of a shelf with merchandise, with the intent to open the box and steal its contents. However, as he saw two shoppers at that corner, he put the box down, pretended to browse other merchandise and his mobile phone, and walked away.

37     At about 9.38 pm, after he saw that no one was at that corner, he returned there. After making sure that no one was looking at him or coming to that corner, he knelt and used a key to cut the tape used to seal the box. While he was doing so, a shopper walked to that corner. Hearing the shopper’s approach, the defendant stopped cutting the tape, stood up immediately and pretended to look at merchandise on the shelf.

38     At about 9.40 pm, once he saw that the shopper had left the area, he returned to the box, opened it and took multiple CPCM vouchers from the box and put them in his plastic bag. (The CPCM vouchers functioned as discount vouchers at CPCM’s video game arcade.) A few seconds later, he took more CPCM vouchers from the box and put them in the plastic bag. He then left that area with the vouchers.

39     At about 9.44 pm, he returned to the box and took more CPCM vouchers after checking that no one was looking at him. He placed them inside his plastic bag. While taking more CPCM vouchers from the box, he discovered that there were boxes of Apple iPads inside the box. At about 9.45 pm, he took out one of the boxes of Apple iPads and placed it inside his plastic bag. At about 9.49 pm, he returned to that corner and rearranged the merchandise at the bottom shelf to make space for the box. After doing so, he placed the box on the bottom shelf and took out one more box of Apple iPad. He then took other merchandise from the shelf and placed them in front of the box to obscure it from the view of others, to delay the discovery of the fact that the contents of the box had been stolen.

40     By this time, he had taken the following items (valued at a total of at least $181,378):

(a)     One Apple Wifi iPad 32GB valued at $499;

(b)     One Apple Wifi iPad Air 64GB valued at $879; and

(c)     4000 pieces of CPCM vouchers with a total value of at least $180,000 (which cost a total of $75 to print).

41     He went to look for his friend at the store but the friend was still playing a game. He then left the store and waited there until the friend finished the game and they left the place. He left the store at about 9.53 pm with the items intending to take the items dishonestly without paying for them. (DAC-913618-2021)

42     Subsequently, the store manager, Fu An, discovered that one box of redemption gifts was missing from the store and called the police. Upon reviewing the store’s CCTV footage, it showed the defendant taking the items. The items have not been recovered.

43     On 14 July 2021, the defendant was arrested for the fifth time. He was held in police custody until 15 July 2021, when he was produced in court to be charged. His bail was revoked and he was remanded. He remained in remand until 22 July 2021 when he was produced in court and offered bail. The Court reminded him that bail would not be offered if he should reoffend. He continued to remain in remand until 3 August 2021 when the bail sum was put up.

18 August 2021: Theft at Mustafa Centre ($4,932.70)

44     On 18 August 2021, at about 10.20 pm, the defendant visited Mustafa Centre, a department store located at 145 Syed Alwi Road.

45     He took the following items (with a total value of $4,932.70) from various parts of the store and placed them in a shopping trolley provided by the store:

(a)     Two bottles of John Varvatos Artisan Blue Edition Perfume valued at $90;

(b)     One bottle of Versace Dylan Blue Edition Perfume valued at $68;

(c)     One bottle of Versace Eros Men Edition Perfume valued at $72;

(d)     Two bottles of Mont Blonc Legend Edition Perfume valued at $110;

(e)     Two bottles of Lan Eclat Homme Edition Perfume valued at $88;

(f)     One bottle of Davoff CW Men Perfume valued at $35;

(g)     One bottle of BB London Women Edition valued at $40;

(h)     One bottle of Burberry Brit Men Edition valued at $45;

(i)     Two bottles of Viva La Juicy Gold Couture valued at $116;

(j)     Two bottles of John Varvatos Nick Jonas Edition valued at $138;

(k)     Two bottles of John Varvatos Edition valued at $110;

(l)     One IPhone 12 Pro 512GB Silver valued at $2,149;

(m)     One IPhone 12 Pro 256GB Blue valued at $1,819;

(n)     Two packets of Oreo single serve cookie valued at $3.80;

(o)     Two packets of Jack and Jill Dewberry Cookie valued at $7.20;

(p)     One packet of Bawas Mini Pempek Tallbot valued at $8.90;

(q)     One packet of Ajmir Assorted Tart valued at $13.90;

(r)     One piece of Amil Towel valued at $10.90; and

(s)     One piece of Amil Towel valued at $8.

46     He left the store at about 11.47 pm with the items, intending to take the items dishonestly without paying for them. (DAC-916293-2021)

47     A security supervisor at the store, Logkesh Manian, subsequently discovered that the items were missing. He reviewed CCTV footage of the store, which showed the defendant taking the items and leaving the store with the items inside his trolley.

48     On 22 August 2021, the security supervisor called the police to inform about the theft of the items. The defendant was arrested the same day (for the sixth time). He denied having stolen the items and lied that he had bought them from a friend. He was released on the same day.

49     Only item (b) and one bottle of (e) (at [45] above), worth a total of $112, were recovered.

Sentencing

Charges taken into consideration

50     Apart from the nine proceeded charges, the defendant admitted to seven other offences, which were taken into consideration for the purposes of sentencing. The key details of these charges are summarised below:

(a)     On 8 April 2021, at about 8.02 pm, at Singtel Exclusive Retail Branch located at ION Orchard (2 Orchard Turn), he committed theft of one JBL Pulse 4 portable speaker, valued at $299, an offence punishable under s 380 of the Penal Code. (DAC-909313-2021)

(b)     In April to May 2021, he intentionally distributed intimate recordings of a 25-year-old woman without her consent, by sending four videos of the woman naked and performing sex acts, with her face exposed, to at least ten people over an Instagram account that he had set up to impersonate the woman online, an offence under s 337BE(1) and punishable under s 377BE(3) of the Penal Code. (DAC-917038-2021)

(c)     On 10 May 2021, having been issued a medical certificate certifying that he had acute respiratory symptoms and excusing him from work or school for three days from 10 to 12 May 2021, he left his home without reasonable excuse, and contravened Regulation 3(2(b) of the Infectious Diseases (COVID-19 – Stay Orders) Regulations 2020, an offence punishable under Reg 3(3) of the Regulations. (MAC-908034-2021)

(d)     On 10 May 2021, at about 7.56 pm, at Kinokuniya Bookstore located at Bugis Junction (200 Victoria Street), he committed theft of a magazine valued at $7.00, an offence punishable under s 380 of the Penal Code. (DAC-911331-2021)

(e)     On 13 June 2021, at about 7.29 pm, at Victoria’s Secret located at Vivocity (1 Harbourfront Walk), he committed theft of four items of perfume with a total value of $486, an offence punishable under s 380 of the Penal Code. (DAC-911332-2021)

(f)     On 14 July 2021, at his home, he was found in possession of various items with a total value of $1,975.63, which were reasonably suspected of being stolen, an offence punishable under s 35 of the Miscellaneous Offences (Public Order & Nuisance) Act (Cap 184). (MAC-908033-2021)

(g)     On 25 September 2021 at about 2.40 pm, at JEM (50 Jurong Gateway Road), he committed theft of a Xiaomi smart watch valued at $179, an offence punishable under s 380 of the Penal Code. (DAC-925930-2021)

Antecedents

51     The defendant had a very long list of past offences.

52     On 9 September 2003, he was ordered by the Juvenile Court to undergo probation for 24 months for an offence of theft under s 379 of the Penal Code.

53     On 9 March 2004, he was again ordered by the Juvenile Court to undergo probation for 24 months after being found guilty of two offences of theft under s 379 of the Penal Code, with five other theft offences taken into consideration for sentencing.

54     On 24 January 2008, he was found guilty of an offence of theft under s 380 of the Penal Code. He was ordered to reside in a Juvenile Home for two years.

55     On 4 January 2011, he was convicted of a charge of forgery for the purpose of cheating, with a charge of theft taken into consideration for sentencing. He was sentenced to reformative training: PP v Muhammad Danial Bin Jesman [2011] SGDC 14.

56     On 6 November 2014, he was convicted of three charges of theft under s 380 of the Penal Code, one charge of personating a public servant and one charge of cheating, with four charges of theft and one charge of fraudulent possession of property taken into consideration for sentencing. He was sentenced to 18 months’ imprisonment in total.

57     On 3 February 2016, he pleaded guilty to seven offences of theft under s 380 of the Penal Code, with eleven other theft charges and two charges of possession of suspected stolen property taken into consideration for sentencing. He was sentenced to a total of three years’ imprisonment.

58     He was released under a CRO from 2 November 2017 to 17 September 2018. But he reoffended soon after with a string of theft offences from December 2017 to March 2018. On 16 August 2018, he pleaded guilty to six charges of theft under s 380 of the Penal Code, with eight other theft offences taken into consideration for sentencing. On 5 November 2019 he was sentenced to five years’ CT. He appealed against the sentence: PP v Muhammad Danial Bin Jesman [2020] SGDC 13 (MA-9270-2019-01). On 4 December 2020, the High Court allowed the appeal and substituted the sentence of CT with a total sentence of 42 months’ imprisonment, and an enhanced sentence of 224 days’ imprisonment for his breach of the CRO.

Submissions on sentence

Submissions on MTO and CT

59     After the defendant pleaded guilty on 31 January 2023, both the Prosecution and the Defence were aligned that an MTO pre-sentence report should be called for.[note: 2] Counsel for the defendant highlighted, among other things, an IMH Report dated 30 June 2021 where Dr Ashvini Selvaraj (“Dr Ashvini”) opined (at [26]):

Given repeated incarcerations have not helped in reducing his re-offending rate, an alternative approach of strict community supervision with continued outpatient psychiatric follow-up and therapy sessions with the medical social worker and family service centre is recommended.

60     The matter was adjourned and the defendant was remanded at the IMH for an MTO pre-sentence report to be prepared.

61     An MTO pre-sentence report dated 7 February 2023 (the “MTO Report”) was submitted by Dr Lim Cui Xi (the “Appointed Psychiatrist”). Dr Lim assessed (at [17]) that the defendant was not a suitable candidate for an MTO. While he had a history of Major Depressive Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”) and Conduct Disorder, he was not depressed at the time of the offences and there was no contributory link.

62     The case was next mentioned on 14 February 2023.

(a)     Counsel for the defendant indicated an intention to write to the IMH to seek a clarification report. Counsel wished to clarify, among other things, why it was assessed that there was no contributory link. [note: 3] Counsel had tendered a psychological report dated 4 June 2022 (the “Psychological Report”) prepared by Dr Julia CY Lam (“Dr Lam”) of Forensic Psych Services which indicated otherwise. Dr Lam’s opinion (at [32] of the Psychological Report) was that the defendant’s stealing behaviour was a manifestation of his Antisocial Personality Disorder (“ASPD”), and she agreed with Dr Ashvini’s recommendation (above, at [59]).

(b)     The Prosecution objected, submitting that the assessment of the Appointed Psychiatrist was final and conclusive. The Prosecution also submitted that a suitability report for CT should be called instead, as the defendant was a recalcitrant offender who had not reformed despite his past incarcerations.[note: 4]

(c)     I accepted the submission of the Prosecution that a pre-sentencing report for CT should be called for. I also allowed counsel for the defendant to seek clarifications from the Appointed Psychiatrist by way of written questions through the court. The matter was adjourned for the CT pre-sentence report to be submitted and for the Defence to prepare the questions to be put to the Appointed Psychiatrist.

63     In a Pre-Sentencing Report For Corrective Training dated 7 March 2023 (the “CT Report”, which was filed on 8 March 2023), the defendant was found to be physically and mentally suitable to undergo CT. It was stated at the conclusion of the CT Report (at p 9) that:

Danial presented with a persistent history of engaging in theft offences and presented with fast relapses after being released from prison. Danial’s recurrent failure to resist urges and impulses relating to theft, despite full awareness of the legal consequences and prior convictions, reflects his high risk of reoffending. While Danial sought professional help in the community after his previous release from prison, Danial’s fast relapse and arrest prevented him from having sustained engagement with professional treatment providers. It would be helpful for Danial to continue to receive intervention to target his impulse control issues relating to theft behaviours.

64     Meanwhile, the Defence also tendered a supplemental report by Dr Lam dated 18 March 2023 (the “Supplemental Psychological Report”) in response to the MTO Report (above, at [61]). In the Supplemental Psychological Report, Dr Lam opined (at [9]-[10]) that the defendant’s “untreated ADHD contributed to his offence commission” and “ADHD is a treatable condition”.

65     The Appointed Psychiatrist subsequently submitted a very brief supplementary report dated 4 April 2023 (the “Supplementary MTO Report”). She had considered the CT Report and Dr Lam’s Psychological Report, and maintained her assessment that the defendant was not recommended for an MTO. The Appointed Psychiatrist added at [3]:

I agree with Dr Lam that his theft behaviours are part of his Anti-Social Personality Disorder in paragraph 32 of her report. Therefore, he does not qualify for the Mandatory Treatment Order.

66     The case was next mentioned on 3 May 2023. It was agreed among parties that the Supplementary MTO Report was unclear, and that further clarification should be sought from the Appointed Psychiatrist.[note: 5] Among other things, it was unclear if the Appointed Psychiatrist had considered Dr Lam’s Supplemental Psychological Report. Meanwhile counsel for the defendant filed a further Plea-in-Mitigation on 3 May 2023 which set out (at [5]-[9], [12]-[13]) certain aspects of the MTO Report and the MTO Supplementary Report that were unclear. (This latest Plea-in-Mitigation also submitted (at [58]-[68]) that the defendant should not be sentenced to CT.)

67     The case was then adjourned to 24 May 2023 for the Appointed Psychiatrist to attend so that parties could ask questions to clarify her reports.[note: 6] The Appointed Psychiatrist clarified, among other things, that:

(a)     the defendant was not assessed for ADHD as his offences were “not impulsive” (meaning that ADHD was not a contributing factor to his offences);[note: 7] and

(b)     while she agreed that the defendant’s theft behaviours were part of his ASPD, ASPD was not treatable by psychiatric treatment, hence the defendant did not qualify for an MTO.[note: 8]

68     Following the clarifications from the Appointed Psychiatrist, the Defence accepted that MTO would not be a sentencing option. I also informed parties that I was not inclined to order CT, given that the sentence of CT imposed for the defendant’s previous set of offences was overturned on appeal. Parties were invited to make further submissions on the appropriate imprisonment sentence for each offence, the global sentence, and the enhanced sentence for the defendant’s breach of the CRO. The matter was adjourned for parties to put in further written submissions.

Submissions on imprisonment and enhanced sentence

69     The next mention was fixed on 22 June 2023. The defendant did not attend the mention as he had a medical certificate from a prison doctor. Counsel informed that the defendant might be seeking a Newton hearing on the basis that his underlying medical conditions might materially affect the sentence, even if MTO was not ordered. Meanwhile, the Prosecution had filed a further address on sentence seeking sentences ranging from 10 to 40 months’ imprisonment per charge, a global sentence of 60 months’ imprisonment, and an enhanced sentence of the maximum of 391 days’ imprisonment for the defendant’s breach of the CRO (if the court declined to impose CT). [note: 9]

70     The matter was next mentioned on 18 July 2023. The Prosecution and the Defence submitted on the sentence. Counsel for the defendant tendered further sentencing submissions seeking a global sentence of 36 months’ imprisonment and an enhanced sentence of 391 days’ imprisonment.[note: 10] The Defence’s main basis for seeking a sentence substantially shorter than that sought by the Prosecution was that Dr Lam, the psychologist engaged by the Defence, had opined that there was a contributory link between the defendant’s ADHD and the offences, and asked that a Newton hearing be held.[note: 11] As has been noted earlier (at [67(a)] above), the Appointed Psychiatrist was of a different opinion. Nonetheless I accepted that the Defence’s assertions, if they could prove it, could have a material impact on the sentence. The matter was adjourned to a pre-trial conference (“PTC”) for arrangements to be made for a Newton hearing.

71     Following that mention, nine PTCs were held from 14 August 2023 to 24 June 2024. Some time was taken for counsel to confirm whether the Criminal Legal Aid Scheme (“CLAS”) would pay for a private psychiatrist to assess whether the defendant’s ADHD had a contributory link to the offending. (Dr Lam was a psychologist and not a psychiatrist.) At some point, Mr Leonard Chua, the counsel who had been appearing for the defendant, left his law firm; another lawyer from the firm took over and appeared for the defendant from January 2024. In March 2024, the law firm applied to be discharged from further acting for the defendant. The defendant then requested for time to apply again to CLAS and to the Public Defender’s Office (“PDO”) for legal representation. When both CLAS and PDO declined to act for the defendant, he asked for time to seek assistance from his Member of Parliament to appeal for legal representation. This led to some delay. Eventually, Ms Jeanny Ng agreed to come on board and act for the defendant. By that time, the defendant had abandoned his quest for a Newton hearing: he was informed by a letter dated 7 May 2024 from Low Yung Ling, a neuropsychologist from Promises Healthcare, that “after careful consideration, Dr. Rajesh [a psychiatrist] has concluded that there is no link between your offence and your attention deficit hyperactivity disorder (ADHD) diagnosis.”

72     The case was fixed for a further mention on 26 August 2024 for Ms Jeanny Ng to tender a mitigation plea. Counsel tendered a brief mitigation plea in which she submitted, among other things, that a sentence of CT would be unsuitable.[note: 12]

Sentencing considerations

Dominant sentencing considerations

73     In deciding on the sentence, I considered the dominant sentencing considerations to be deterrence and prevention. The defendant had a long list of past convictions for theft, for which he had undergone probation, residence at a Juvenile Home, reformative training and periods of imprisonment of increasing duration (above at [51]-[58]). These have not rehabilitated him or deterred him from further offending. His rehabilitative prospects were not favourable at all, given his repeated and relentless reoffending each time soon after his release from custody. He must be deterred and prevented from further offending. The appropriate sentence to achieve these objectives would be a substantial term of imprisonment.

Individual sentences and global sentence

74     The prescribed punishment for theft under s 380 of the Penal Code was imprisonment for a term of up to seven years, and the offender was also liable to a fine.

75     In deciding on the sentence for each offence, it was appropriate to calibrate the sentence broadly according to the value of the items stolen as a proxy of the harm caused. It was also appropriate to apply the principle of escalation given his repeated offending. As noted above at [58], his most recent previous conviction was for six offences of theft, with eight other theft offences taken into consideration for sentencing. The offences for which he was convicted involved the theft of items with a total value ranging from $898 to $2,596. The High Court imposed 21 months’ imprisonment for each charge, with two sentences running consecutively, giving a global sentence of 42 months’ imprisonment. An enhanced sentence of 224 days’ imprisonment was also imposed for the defendant’s breach of his CRO at that time. These sentences previously imposed provided a helpful reference point for applying an escalation in determining the sentences for the present offences.

76     With these considerations in mind, I agreed with most of the sentences submitted by the Prosecution in the Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023. In my judgment, the sentences submitted were generally fair and appropriate. The following sentences were thus imposed for the individual offences:

(a)     For DAC-911328-2021, where the defendant on 5 April 2021 committed theft of a smart watch and portable speaker with a total value of $328.90, a sentence of 15 months’ imprisonment.

(b)     For DAC-911329-2021, where he on 9 April 2021 committed theft of an Apple Macbook Air valued at $1,299, a sentence of 20 months’ imprisonment.

(c)     For DAC-911330-2021, where he on 30 April 2021 committed theft of a drone valued at $1,449, a sentence of 20 months’ imprisonment.

(d)     For DAC-909314-2021, where he on 2 May 2021, at 5.08 pm, committed theft of a Nintendo Switch gaming console valued at $499, a sentence of 15 months’ imprisonment.

(e)     For DAC-917037-2021, where he on 2 May 2021, at 7.32 pm, committed theft of two bottles of perfume valued at a total of $119.50, a sentence of 10 months’ imprisonment.

(f)     For DAC-909291-2021, where he on 17 May 2021 committed theft of various earpieces with a total value of $436, a sentence of 15 months’ imprisonment.

(g)     For DAC-916277-2021, where he on 6 June 2021 committed theft of a soundbar valued at $699, a sentence of 15 months’ imprisonment.

(h)     For DAC-913618-2021, where he on 11 July 2021 committed theft of two iPads with a total value of $1,378, as well as 4,000 pieces of CPCM vouchers with a total value of at least $180,000, a sentence of 20 months’ imprisonment.

(i)     For DAC-916293-2021, where he on 18 August 2021 stole numerous items from the Mustafa Centre with a total value of $4,932.70, a sentence of 30 months’ imprisonment. This was lower than the sentence of 40 months suggested by the Prosecution. In my judgment, a sentence of 30 months, which reflected the higher value of the items stolen compared with the other charges, was an adequate and proportionate escalation from the sentence of 21 months that the defendant received for his previous set of offences.

77     As required by the law, at least two sentences had to run consecutively. In my judgment, the global sentence for the present offences should reflect an escalation from the global sentence of 42 months’ imprisonment that the defendant received for his previous offences. However, I did not consider it necessary for the global sentence to be as high as the 60 months sought by the Prosecution. Therefore, I ordered that the sentences for the following two offences run consecutively: DAC-911330-2021 (20 months) and DAC-916293-2021 (30 months), giving a total sentence of 50 months’ imprisonment. In my judgment, a total sentence of 50 months’ imprisonment would adequately reflect the defendant’s culpability and the harm caused by his present offences, with an escalation in view of his repeated offending, without being disproportionate or crushing.

Enhanced sentence for breaching CRO

78     After the defendant’s conviction and sentence for his previous set of offences, he was released on 27 March 2021 under a CRO. A basic condition of the CRO was that he was not to commit any fresh offence during the period of the conditional remission from 27 March 2021 to 30 April 2022. He committed all the present offences during this period while the CRO was in force. He was thus in breach of the CRO and liable to enhanced sentences of imprisonment under s 50T(1)(a) of the Prisons Act. These ranged from 391 days for the earliest offence committed on 5 April 2021 (DAC-911328-2021) to 256 days for the latest offence committed on 18 August 2021 (DAC-916293-2021).

79     I accepted the submission of the Prosecution that the offences would fall within Band 3 of the framework set out in Abdul Mutalib bin Aziman v PP [2021] 4 SLR 1220 (“Abdul Mutalib”).[note: 13] The defendant reoffended on 5 April 2021, which was only slightly more than a week after his release on 27 March 2021. He continued to reoffend numerous times despite being re-arrested and released on bail six times (above at [25], [29], [33], [34], [43], [48]). His offending stopped only in September 2021 after he was remanded. His rehabilitative prospects were clearly unfavourable. I accepted the submission of the Prosecution that the maximum enhanced sentence of a total of 391 days’ imprisonment should be imposed. Accordingly:

(a)     for DAC-911330-2021, an enhanced sentence of 191 days was imposed; and

(b)     for DAC-916293-2021, an enhanced sentence of 200 days was imposed,

giving a total enhanced sentence of 391 days for the breach of the CRO.

Sentence imposed

80     In summary, the sentences imposed were as follows:

Charge

Offence

Sentence

DAC-911328-2021

Theft ($328.90)

15 months’ imprisonment

DAC-911329-2021

Theft ($1,299)

20 months’ imprisonment

DAC-911330-2021

Theft ($1,449)

20 months’ imprisonment (Consecutive)

Enhanced sentence of 191 days’ imprisonment

DAC-909314-2021

Theft ($499)

15 months’ imprisonment

DAC-917037-2021

Theft ($119.50)

10 months’ imprisonment

DAC-909291-2021

Theft ($436)

15 months’ imprisonment

DAC-916277-2021

Theft ($699)

15 months’ imprisonment

DAC-913618-2021

Theft ($1,378, and arcade vouchers worth at least $180,000)

20 months’ imprisonment

DAC-916293-2021

Theft ($4,932.70)

30 months’ imprisonment (Consecutive)

Enhanced sentence of 200 days’ imprisonment

Total sentence: 50 months’ imprisonment; enhanced sentence of 391 days’ imprisonment.

Backdating of sentence: The sentence was backdated to 17 June 2021 (date of defendant’s remand at IMH) and to take into account the periods of remand and to exclude the periods during which he was on bail. He was on bail for the following periods:

- from 1 July 2021 to 15 July 2021, and

- from 3 August 2021 to 28 September 2021

(He has been in remand since 28 September 2021)[note: 14]



81     He is presently serving the sentence.

[note: 1]Statement of Facts of the Prosecution.

[note: 2]Plea-in-Mitigation filed on 31 January 2023 at [5]. Transcript, 31 January 2023, 15:9-15 (p 15 lines 9-15).

[note: 3]Transcript, 14 February 2023, 1:14-22, 3:8-30.

[note: 4]Prosecution’s Sentencing Submissions On Calling For Corrective Training Suitability Report filed on 10 February 2023. Transcript, 14 February 2023, 1:24–2:1-3, 14-32.

[note: 5]Transcript, 3 May 2023, 1:13–2:26.

[note: 6]Transcript, 24 May 2023, 1:16–19:27.

[note: 7]Transcript, 24 May 2023, 15:25–16:7.

[note: 8]Transcript, 24 May 2023, 18:22–19:20.

[note: 9]Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023.

[note: 10]Further Sentencing Submissions filed on 13 July 2023 at [24], [31]-[32].

[note: 11]Transcript, 18 July 2023, 1:29–2:12.

[note: 12]Further Plea-in-Mitigation dated 15 August 2024 at p 2, third paragraph.

[note: 13]Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023 at [4]-[5].

[note: 14]On further consideration, the brief periods that the defendant spent in police custody following some of his arrests could also have been taken into account in his sentence: 18-20 May 2021 (above at [29]); 15-17 June 2021 (above at [34]), 14-15 July 2021 (above at [43]).

"},{"tags":["Criminal Law – Offences – Section 5(1) read with section 14 of the Computer Misuse Act 1993","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No 910226 of 2024, Magistrate's Appeals No MA-9173-2024-01","title":"Public Prosecutor v Wu Zhiwei","citation":"[2024] SGDC 254","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32239-SSP.xml","counsel":["Grace Chua (Attorney-General's Chambers) for the Public Prosecutor","Lim Wen Yang Bryan (Hoh Law Corporation) for the Accused."],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Ong Chin Rhu","html":"Public Prosecutor v Wu Zhiwei

Public Prosecutor v Wu Zhiwei
[2024] SGDC 254

Case Number:District Arrest Case No 910226 of 2024, Magistrate's Appeals No MA-9173-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Ong Chin Rhu
Counsel Name(s): Grace Chua (Attorney-General's Chambers) for the Public Prosecutor; Lim Wen Yang Bryan (Hoh Law Corporation) for the Accused.
Parties: Public Prosecutor — Wu Zhiwei

Criminal Law – Offences – Section 5(1) read with section 14 of the Computer Misuse Act 1993

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9173/2024/01.]

30 September 2024

District Judge Ong Chin Rhu:

1       The Accused, Mr Wu Zhiwei, pleaded guilty to an amalgamated charge under section 5(1) read with section 14 of the Computer Misuse Act 1993 (“the Act”) for causing unauthorised modifications to the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd. I sentenced the Accused to 18 months’ imprisonment.

2       The Accused being dissatisfied with the sentence has filed an appeal. He is currently on bail pending the hearing of his appeal.

The Charge

3       The details of the charge which the Accused pleaded guilty to were as follows:

You […] are charged that you, between January 2022 and December 2022, in Singapore, did knowingly cause unauthorised modifications to the contents of the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd, to wit, not less than 297 SIM cards were registered for and activated using the personal information of 38 people without their consent, which modifications were without the authorisation of SIMBA Telecom Pte Ltd, and you have thereby committed an offence punishable under Section 5(1) read with Section 14 of the Computer Misuse Act 1993.

Facts

4       The Accused admitted to the facts set out in the Statement of Facts (“SOF”) without qualification:

1.    The accused is Wu Zhiwei, a 30-year-old Singaporean male, [NRIC No], [Date of birth]. At the material time, he was the owner of a mobile phone retail shop “TT Concept Pte Ltd”, located at Block 81 Whampoa Drive #01-907 Singapore 320081 (the “store”).

Facts pertaining to the charge DAC-910226-2024

2.    As the owner of the store, the accused ordered and received supplies of physical SIM cards from various telecommunication companies. The telecommunication companies used various applications, websites and portals for the registration of the SIM cards and as a dealer, the accused was given access to the login information on [the] said applications, websites and portal, for SIM card registration on behalf of his customers. One of these telecommunication companies was SIMBA Telecom Pte Ltd.

3.    Before issuing a SIM card from SIMBA Telecom Pte Ltd, the customer had to be physically present and the accused was required to physically verify the customer’s identity and particulars against their NRIC, employment pass or passport. The accused would then logon to the SIM card registration portal where he would select the type of SIM card the customer wished to register. He would click on the “sign up’ button for the customer. The accused would then retrieve a physical SIM card and key in the Integrated Circuit Card Identification (ICCID) details of the physical SIM card on the portal. Five available phone numbers would be generated on the website and the customer would be required to choose a preferred phone number. Once selected, the accused would be required to key in the customer’s personal particulars, before uploading a copy of the customer’s NRIC or Passport to complete the registration. Upon successful registration, the portal will transmit all of this data to SIMBA Telecom Pte Ltd’s computer system where it will be stored.

4.    Sometime in 2021, a man known as ‘Ah Boy’ arrived at the store. ‘Ah Boy’ informed the accused that he had gotten a group of customers for the store. The customers would be purchasing SIM cards from the accused and on average, they each required five to 10 SIM cards with different phone numbers. The customers arrived at the store to manually purchase the SIM cards. After some time, the same few customers kept returning over and over again to purchase SIM cards. When asked, they informed the accused that they were paid to purchase the SIM cards from him. ‘Ah Boy’ eventually collected these SIM cards from the customers. After some time, ‘Ah Boy’ informed the accused that he would simply send the accused photographs of various NRICs and Passports belongings [sic] to various individuals. The accused never verified the identities of any of these individuals and would simply register the SIM cards per the names and particulars furnished. Many of the individuals whose particulars were furnished did not know that their particulars were used in this manner and did not consent to the registering of a SIM card.

5.    The accused’s actions as described in paragraphs 4 above were all was [sic] performed without SIMBA Telecom Pte Ltd’s authorisation. The accused knew at all times that his actions were against SIMBA Telecom Pte Ltd’s policies and against the law but wanted to make fast cash and continued in his wrongdoing.

6.    The accused only stopped selling the SIM cards to ‘Ah Boy’ in December 2022 because ‘Ah Boy’ defaulted on payment.

7.    On 30 March 2023, at or about 3pm, a police raid was conducted to target errant subscribers and telco retailers for fraudulent registration of SIM cards. Investigations revealed that between January 2022 and December 2022, the accused had registered a total of 297 SIM cards with the personal information of 38 people, which were used as such by the accused without these individuals’ consent. 79 SIM cards were later used for illegal scam activities.

8.    By virtue of the above, from January 2022 and December 2022, the accused committed acts which he knew would cause unauthorised modifications to the contents of the computer system, namely the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd, by registering 297 SIM cards with the personal information of 38 people without their consent with the aforesaid computer system. This was performed without the authorisation of SIMBA Telecom Pte Ltd, and the accused has thereby committed an offence under Section 5(1) read with Section 14 of the Computer Misuse Act 1993.

Sentencing

Prescribed punishment

5       Section 5(1) of the Act stated:

5.—(1)    Subject to subsection (2), any person who does any act which the person knows will cause an unauthorised modification of the contents of any computer shall be guilty of an offence and shall be liable on conviction —

(a)    to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both;

Antecedents

6       The Accused was untraced.

Prosecution’s Submissions on Sentence

7       The prosecution tendered written submissions on sentence, supplemented by oral submissions in Court, and sought a sentence of 24 to 26 months’ imprisonment on the charge.

8       The prosecution began by submitting that the dominant sentencing consideration for offences under the Act was deterrence. Referring to the decision in Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR(R) 653 at [20] to [21], the prosecution explained that this was because such offences would undermine public and international confidence in the commercial integrity of Singapore’s computer systems and were difficult to detect. Further, the proliferation of offences like the ones committed by the Accused was also particularly damaging as they provided an anonymous channel of communications for illicit activities.

9       The prosecution proceeded to highlight the following considerations which enhanced the Accused’s culpability:

(a)     The Accused committed the offences out of greed as he wanted to make fast cash.

(b)     The offences were committed over a protracted period of time for about a year.

(c)     The Accused’s offending was persistent. Despite knowing that the customers were paid to purchase SIM cards from him, the Accused escalated his offending by registering multiple SIM cards based on particulars provided to him by “Ah Boy” without performing any due diligence or checks and only stopped selling SIM cards to “Ah Boy” when the latter defaulted on payment.

(d)     The offences were difficult to detect.

(e)     Actual harm was caused as a number of the SIM cards registered by the Accused were used for illegal scam activities and implicated innocent individuals whose personal details were misused.

10     Against these considerations, the prosecution noted that the Accused had pleaded guilty and therefore did not object to the maximum 30% sentencing reduction being applied.

11     Finally, the prosecution referred to the case of Public Prosecutor v Jimmy Ong Wei Siong [2022] SGDC 277 (“Jimmy Ong”) where the offender was sentenced to 24 months’ imprisonment for similar offences under the corresponding provisions of the earlier version of the Act. The prosecution submitted that while Jimmy Ong involved the registration of more SIM cards, fewer SIM cards were traced to illegal operations. Further, the offending in the present case was over a longer period and more sophisticated. Therefore, prosecution concluded that their position of 24 months’ imprisonment was fair.

Mitigation & Defence’s Submissions on Sentence

12     The defence tendered a written plea-in-mitigation incorporating their submissions on sentence and asked the Court to impose the maximum fine of $10,000 against the Accused, or alternatively, an imprisonment term of not more than six months.

13     In mitigation, the defence set out the Accused’s personal and family background and stated that the Accused had been running the mobile phone retail shop mentioned in the SOF as a “one-man-show” since mid-2021 to provide for his family. One of the services he provided was the sale of SIMBA SIM cards and he would earn a 40% profit (i.e. $4) from each $10 SIM card sold. At the time of the offence, it was permissible for persons to purchase multiple SIM cards with one identification document and there would be customers who would require multiple SIM cards for their family or business.

14     The Accused was extremely remorseful as he had failed to appreciate the severity of his wrongdoings. He acknowledged that he was wrong to have registered and sold SIM Cards to “Ah Boy” without exercising the due diligence required.

15     The defence pleaded for leniency by pointing to the Accused’s clean records, cooperation with the police during investigations and early plea of guilt. The defence added that his family would face financial difficulties if the Accused was required to serve a lengthy imprisonment term and submitted that the court proceedings already had a strong deterrent effect on him.

16     Next, the defence referred to two sentencing precedents in support of its sentencing position.

17     The defence began by studying the case of Jimmy Ong, the sentencing precedent cited by the prosecution. The defence noted that the District Court in that case had suggested the following sentencing factors at [24] of its decision:

(a)     the period of the offending;

(b)     the scale of the operations;

(c)     the quantity of cards generated and where they were intended for; and

(d)     the personal role and motivations of the offender.

18     After setting out the background facts in Jimmy Ong, the defence pointed to several distinguishing factors between that case and the present one which, the defence submitted, should result in a significant downward calibration in the sentence for the Accused, as compared to the 24 months’ custodial term meted out in Jimmy Ong.

19     Firstly, the court in Jimmy Ong had placed significant weight on the offender’s long list of antecedents, which suggested a blatant disregard for the law. It was also noted that some of the offender’s offending actions took place while he was investigated by the authorities for Customs and Excise duty evasion. In contrast, the Accused was a first-time offender.

20     Secondly, the defence submitted that the period of offending in Jimmy Ong was substantially longer as the offender’s criminal activities had actually gone on for about five years. While his earlier wrongdoings did not form the subject matter of the charges in that case, they nevertheless formed the relevant backdrop to the offences and were therefore duly considered by the court in deciding sentence. In the present case, the Accused’s period of offending was one year.

21     Thirdly, the scale of offending in Jimmy Ong was much more substantial. Not only did the offender generate a larger number of pre-registered SIM cards (known as “Space Cards”) using his customer’s particulars without their knowledge by exploiting a loophole in the registration system, he sold the cards at a much higher price and earned a profit of about $5,000 a month by doing so. The offender escalated his offending behaviour by instructing his employee to pre-register the cards for him and purchased large quantities of additional cards from unknown persons which he upsold for profit. The offender in Jimmy Ong further expanded his operations by receiving numerous passports every month from two individuals which he used to register Space Cards and for which he would be paid between $2,000 to $4000 per transaction. Hence, the defence argued that while the main focus of the offender’s business in Jimmy Ong was his illegal activities, the Accused’s main focus in running his shop had always been on selling legitimate products and providing legitimate services.

22     Fourthly, the role of the offender in Jimmy Ong, as the mastermind of his offences, was much more active with a much higher degree of premeditation whereas the Accused played a passive role in committing his offences and did not initiate any of the transactions. The Accused was approached by “Ah Boy” and merely dealt with “Ah Boy” and the customers recommended by “Ah Boy”. He did not know what “Ah Boy” would do with the SIM cards purchased.

23     Fifthly, the offender in Jimmy Ong earned substantially more profit from his criminal acts than the Accused. Further, even if there were any illegal activity carried out using the SIM cards provided by the Accused, he did not profit from them.

24     Finally, the SIM cards involved in Jimmy Ong comprised 616 cards in the proceeded charges and 112 cards in the charges taken into consideration. This was more than double the 297 cards involved in the present case.

25     The defence added that the Accused’s actions were not sophisticated in nature. The offences were also not difficult for the authorities to detect as there was always a paper trail which would allow the authorities to trace the SIM cards back to the Accused’s store.

26     The defence then referred to the case of Public Prosecutor v Tan Chinn (“Tan Chinn”), an unreported decision which was mentioned at [21] of Jimmy Ong. The offender had registered Space Cards using the particulars of legitimate customers without their consent over the period of about a year. He was sentenced to six months’ imprisonment.

27     Based on the above, the defence urged the Court to temper justice with mercy and apply a significant downward calibration from the sentence of 24 months’ meted out in Jimmy Ong.

Decision on Sentence

Sentencing considerations & principles

28     In deliberating sentence, I agreed with the prosecution’s submission that deterrence was the predominant sentencing consideration in offences of this nature. In this regard, I was of the view that sentencing in cases involving the illicit registration of SIM cards would be informed by the following offence-specific elements:

(a)     the period of offending;

(b)     the scale of the operations;

(c)     the level of sophistication and premeditation involved;

(d)     whether there was syndicate involvement;

(e)     the quantity of SIM cards registered;

(f)     harm (including potential harm) occasioned by the offences;

(g)     the motivation of the offender, including whether there was any monetary gain or benefit derived by the offender;

(h)     the role played by the offender; and

(i)     the degree of persistence of offending.

(1)   The offences were committed over a prolonged period and there was syndicate involvement

29     Turning to the facts in the present case, I agreed with the prosecution’s observation that the Accused had committed the offences in the amalgamated charge over a protracted period of about a year. In fact, while the full scale and extent of the Accused’s dealings with “Ah Boy” and the group of customers introduced by him were unclear, the facts admitted by the Accused showed that, even before the period stated in the charge, the Accused had, since sometime in 2021, registered multiple SIM cards for a number of customers who he knew were paid to purchase the cards repeatedly from him.

30     Further, the fact that “Ah Boy” went on to send numerous photographs of NRICs and passports to the Accused clearly pointed to a nefarious element in the transactions and indicated the involvement of a criminal syndicate. Thus, while the defence emphasised that the Accused did not know what “Ah Boy” would do with the SIM cards, it was, in my view, reasonably foreseeable that the SIM cards could fall into the wrong hands and be employed in illegal activities.

31     On the other hand, I agreed with the defence’s submission that the Accused’s offending conduct was not particularly sophisticated. There was also minimum planning or premeditation on his part as his role was to register SIM cards based on particulars provided by “Ah Boy”.

(2)   Substantial number of SIM cards were wrongfully registered, giving rise to potential and actual harm

32     As regards harm, I was of the view that the Accused’s criminal activities gave rise to both potential and actual harm. As highlighted by the court at [10] of Jimmy Ong, such SIM cards registered using innocent third parties’ particulars allowed malicious actors access to Singapore’s telecommunication systems and data networks while masked by a cloak of anonymity. Each of the 297 SIM cards registered by the Accused with particulars furnished by “Ah Boy” represented an instance where the control mechanisms put in place to safeguard access to our communications infrastructure was breached, and resulted in a local phone number issued which could not be traced to its actual user. As observed by the District Judge in Jimmy Ong “[w]ith these SIM cards, users can reach out to and contact others – whether they be other similar associates or other unsuspecting parties – to further their activities and /or to advance their propositions, and be assured that tracing attempts by those parties/authorities of the SIM card’s subscriber details would lead to naught, and instead result in some other hapless innocent individual being investigated instead”.

33     Indeed, this was exactly what happened in this case. Not only did the 38 individuals suffer their personal information being misused for the registration of the 297 SIM cards, actual harm was wrought when 79 of these SIM cards were later used for illegal scam activities and the innocent individuals were visited with the ignominy of being implicated. While the Accused was not directly involved in perpetuating the downstream offences, his unlawful acts were critical in enabling and facilitating such wrongdoings.

(3)   The Accused was motivated by personal gain and continued his offending despite knowing that the acts were illegal

34     The Accused’s offences were clearly motivated by personal gain. He had admitted to committing the offences despite knowing at all times his actions were unlawful as he wanted to make fast cash. Indeed, as submitted by the prosecution, even though the Accused found out that the customers introduced by “Ah Boy” were paid to purchase SIM cards from him, the Accused escalated his actions by simply registering SIM cards without performing any due diligence or checks. Further, the Accused had persisted in his offending and stopped only when it no longer profited him as “Ah Boy” had defaulted on payment.

(4)   The offences were difficult to detect

35     I agreed with the prosecution’s contention that the Accused’s offences were difficult to detect. Although the defence argued that there would be a paper trail leading from each SIM card registered to the Accused, in reality, the Accused’s surreptitious activities had gone undetected for more than a year and it was only in March 2023 that the police conducted the raid that uncovered his offences. Further, the facts admitted by the Accused showed that, by the time the offending SIM cards were traced to him, a large number had already been utilised in perpetuating criminal activity.

The maximum fine of $10,000 would be wholly inadequate

36     Following from the above, I was of the view that the maximum fine proposed by the defence would be manifestly inadequate to reflect the Accused’s overall criminality as the custodial threshold has clearly been crossed in this case.

Sentencing precedents considered

37     I therefore turned to deliberate on the appropriate imprisonment term to be meted out. In doing so, I had carefully considered the sentencing precedents highlighted by both parties.

38     Referring first to Tan Chinn, as acknowledged by the defence, this was an unreported decision mentioned at [21] of Jimmy Ong and the details of the case (including the number of SIM cards involved) were not available before me. Hence, I was of the view that Tan Chinn was of little precedential value and afforded no assistance to the defence.

39     I next turned to consider Jimmy Ong, the only reported decision cited by the parties. The offender in Jimmy Ong faced a total of four amalgamated charges under section 5(1) read with section 11A[note: 1] of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) for knowingly effecting unauthorised modifications to the contents of the computer systems of various telcos. Like the Accused, the offender ran a mobile phone and accessories shop. After registering a legitimate SIM card selected by a customer at his shop, he did not close the registration page but registered additional SIM cards against the customer’s particulars without his knowledge. These resultant pre-registered SIM cards were sold at a much higher price than legitimate ones. The offender pleaded guilty to two charges (involving a total of 616 SIM cards) and admitted and consented to having two charges (involving a total of 112 SIM cards) be taken into consideration for the purposes of sentencing. He was sentenced to a total of 24 months’ imprisonment.

40     As mentioned earlier in these grounds, the prosecution relied on Jimmy Ong and urged the Court to impose a similar sentence of 24 months’ imprisonment on the Accused. While the prosecution acknowledged that Jimmy Ong involved the use of more SIM cards, the prosecution argued that the offences in the present case was more prolonged and sophisticated. The defence, on the other hand, launched into a detailed comparison between Jimmy Ong and the present case[note: 2] and submitted that there should be a significant downward calibration in sentence for the Accused.

41     Having carefully studied the facts in Jimmy Ong, I was in general agreement with the defence that there were several substantial distinguishing factors. As the points of distinction have been enumerated extensively by the defence, I do not propose to set them out in detail, but summarise the main points below.

(a)     Firstly, though the proceeded charges in Jimmy Ong focused on offences committed between May to October 2021, the total duration of offending was in fact about 5 years.[note: 3] This was substantially longer than the period of offending in the present case.

(b)     Secondly, the scale of offending in Jimmy Ong was also more extensive. Based on the charges in that case, the number of SIM cards generated totalled 728. The offender also instructed his employee to pre-register the cards for him[note: 4] and earned about $5,000 a month from the creation and sale of the SIM cards[note: 5]. He further escalated his offending by regularly receiving numerous passports from unknown persons and was paid $2,000 to $4,000 per transaction for mass-registering SIM cards using the identities therein[note: 6]. To expand the scale of his criminal enterprise, the offender bought illegitimate SIM cards from unknown persons and upsold them for a profit[note: 7].

(c)     Thirdly, the conduct of the offender in Jimmy Ong was comparatively more egregious as he had exploited the technological loophole and misused the particulars of his own customers to register the illegitimate SIM cards.[note: 8]

(d)     Further, contrary to the prosecution’s submission that the offending in the present case was more sophisticated, the court in Jimmy Ong concluded that the offending in that case was “well-planned, sophisticated and entirely premeditated” due to the deliberate steps and subterfuge employed in registering each SIM card[note: 9].

(e)     Pertinently, the court in Jimmy Ong found that specific deterrence was firmly engaged as the offender had 54 pages of antecedents, and had committed the offences relating to the SIM cards while he was being investigated and dealt with for his many Customs and Excise evasion offences.[note: 10]

42     In contrast, the current case was the Accused’s first brush with the law. His offending conduct was also less sophisticated compared to that in Jimmy Ong as he played a relatively passive role by registering the SIM cards using particulars given to him by “Ah Boy”. The Accused’s transgressions were of a smaller scale and consequently, the profits reaped by the Accused also paled in comparison to that in Jimmy Ong.

43     That said, it was important to note that the number of SIM cards linked to illicit activities in the present case (79 cards used for illegal scam activities) was more than double that in Jimmy Ong (34 SIM cards used by unlicensed moneylending syndicate[note: 11]). In my judgment, this evinced a greater degree of actual harm flowing from downstream offences facilitated by the Accused’s wrongdoings.

44     I would also hasten to add that while Jimmy Ong may be distinguished on several fronts, it was nevertheless germane as a useful reference point for calibrating sentence in this case. More importantly, although I was of the view that a relatively shorter custodial term (than the 24 months in Jimmy Ong) should be meted out against the Accused, the sentence imposed in this case must still be sufficiently robust to reflect Accused’s overall criminality and effectively deter like-minded offenders.

Mitigating factors

45     In considering sentence, I had given the Accused credit for his cooperation during investigations. In recognition of his early plea of guilt as a sign of his genuine remorse and contrition, I have accorded him a 30% reduction from the sentence he would otherwise have received had he claimed trial. On the other hand, hardship suffered by the Accused’s family as a consequence of his incarceration would carry little mitigating value: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [11].

Conclusion

46     Having carefully weighed all the sentencing considerations, I was of the view that a sentence of 18 months’ imprisonment would be appropriate in this case. In my view, this sentence was proportionate to the Accused’s culpability and sufficient for the purpose of deterrence.

[note: 1]Section 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) was the equivalent of section 14 of the Act.

[note: 2]Mitigation plea at [33] to [60].

[note: 3]Jimmy Ong at [4(i)], [4(j)], [6] and [13].

[note: 4]Jimmy Ong at [4(d)].

[note: 5]Jimmy Ong at [4(c)].

[note: 6]Jimmy Ong at [4(f)] and [4(g)].

[note: 7]Jimmy Ong at [4(e)].

[note: 8]Jimmy Ong at [4(c)].

[note: 9]Jimmy Ong at [13].

[note: 10]Jimmy Ong at [5], [6] and [15].

[note: 11]Jimmy Ong at [4(h)].

"},{"tags":["Criminal Law – Securities and Futures Act – Act likely to operate as a fraud","Criminal Procedure and Sentencing – Sentencing – Custodial Sentence"],"date":"2024-09-23","court":"District Court","case-number":"District Arrest Case No 921152 of 2020 & Anor, Magistrate's Appeal No 9126/2024/01","title":"Public Prosecutor v Sun Weiyeh","citation":"[2024] SGDC 242","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32238-SSP.xml","counsel":["Mr Peter Koy, Mr Eric Hu, Mr Darren Sim (Attorney-General's Chambers) for the Public Prosecutor","Mr Jason Chan SC, Mr Aaron Lee, Ms Wong Pei Ting and Ms Low Zhe Ning (Allen & Gledhill LLP) for the accused"],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Luke Tan","html":"Public Prosecutor v Sun Weiyeh

Public Prosecutor v Sun Weiyeh
[2024] SGDC 242

Case Number:District Arrest Case No 921152 of 2020 & Anor, Magistrate's Appeal No 9126/2024/01
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Luke Tan
Counsel Name(s): Mr Peter Koy, Mr Eric Hu, Mr Darren Sim (Attorney-General's Chambers) for the Public Prosecutor; Mr Jason Chan SC, Mr Aaron Lee, Ms Wong Pei Ting and Ms Low Zhe Ning (Allen & Gledhill LLP) for the accused
Parties: Public Prosecutor — Sun Weiyeh

Criminal Law – Securities and Futures Act – Act likely to operate as a fraud

Criminal Procedure and Sentencing – Sentencing – Custodial Sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9126/2024/01.]

23 September 2024

District Judge Luke Tan:

Introduction

1       The accused, Sun Weiyeh, is a 43-year-old male Singaporean. He claimed trial to two charges under s 201(b) of the Securities and Futures Act (Cap 289, 2006 Rev Ed) (“SFA”), for engaging in acts which were likely to operate as a fraud upon the investors of a fund of which he was a portfolio manager.

2       The acts in question pertained to the accused selling two bonds from one fund (“selling fund”) to another fund in which he had a majority shareholding (“buying fund”). The Prosecution’s case was that he carried out these acts despite knowing of earlier bids for these bonds at higher prices, and thus benefitted from this transaction at the expense of investors of the selling fund.

3       For the purposes of the hearing, and with the consent of the Defence, the Prosecution proceeded on a joinder of the two charges. The trial took place over the course of 28 days. Evidence was led from eight witnesses from the Prosecution, and the accused was the sole witness for the Defence.

4       At the end of the trial, both the Prosecution and the Defence tendered lengthy submissions and replies and also put in several bundles of authorities. These consisted of:

(a)     For the Prosecution:

(i)       Prosecution’s Closing Submissions (“PCS”);

(ii)       Prosecution’s Reply Submissions (“PRS”)

(iii)       Prosecution’s Bundle Of Authorities (Volume 1) (“PBOA V1”); and

(iv)       Prosecution’s Bundle Of Authorities (Volume 2) (“PBOA V2”); and

(v)       Prosecution’s Bundle Of Authorities for Reply Submissions (“PBOA RS”).

(b)     For the Defence:

(i)       Defence’s Closing Submissions (“DCS”);

(ii)       Defence’s Reply Closing Submissions (“DRCS”)

(iii)       Defence’s Bundle Of Authorities to Defence’s Closing Submissions (Volume 1) (“DBOA CS V1”);

(iv)       Defence’s Bundle Of Authorities to Defence’s Closing Submissions (Volume 2) (“DBOA CS V2”); and

(v)       Defence’s Supplementary Bundle Of Authorities to Defence’s Reply Closing Submissions (“DSBOA”);

5       After going through the extensive notes of evidence (“NE”), the exhibits, the submissions of parties and the authorities cited, I was satisfied that there was sufficient evidence to establish the charges against the accused beyond a reasonable doubt, and I convicted him accordingly.

6       Thereafter, I considered submissions made by parties on sentence including, in particular, submissions on the gains made by the accused in connection with the commission of the offences. For sentencing, parties again tendered various submissions, replies and bundles of authorities consisting of:

(a)     For the Prosecution:

(i)       Prosecution’s Skeletal Sentencing Submissions (“PSSS”);

(ii)       Prosecution’s Reply Submissions (“PRSS”)

(iii)       Prosecution’s Further Reply Submissions (“PFRS”);

(iv)       Prosecution’s Bundle Of Authorities (“PBOAS”); and

(v)       Prosecution’s Reply Bundle of Authorities (“PRBOAS”)

(b)     For the Defence:

(i)       Defence’s Sentencing Submissions (“DSS”);

(ii)       Defence’s Reply Sentencing Submissions (“DRSS”)

(iii)       Defence’s Further Reply Sentencing Submissions (“DFRSS”)

(iv)       Defence’s Second Supplementary Bundle Of Authorities to Defence’s Sentencing Submissions (“DSSBOA”);

(v)       Defence’s Third Supplementary Bundle Of Authorities to Defence’s Reply Sentencing Submissions (“DTSBOA”); and

(vi)       Defence’s Fourth Supplementary Bundle Of Authorities to Defence’s Reply Sentencing Submissions (“DFSBOA”).

7       After considering the submissions and relevant authorities, I imposed an aggregate sentence of 6 months’ imprisonment on the accused, consisting of two concurrent sentences of 6 months’ imprisonment per charge.

8       The accused, being dissatisfied, has filed appeals against his conviction and sentence. He is currently on bail. I now give the reasons for my decision in these Grounds of Decision (“GD”). For ease of reference, I have set out in some detail the main points made by the Prosecution and the Defence in their various submissions referred to at [4] and [6], which explains the length of these GD.

Charges

9       The accused faced two similar charges. The charges were amended at the end of the Prosecution’s case pursuant to an application by the Prosecution, and before the defence was called. In line with section 230(1)(g) of the Criminal Procedure Code 2010 (“CPC”), and bearing in mind the guidance of the High Court in Goh Chin Soon v Public Prosecutor [2020] SGHC 162 (“Goh Chin Soon”), which set out at [69] the requirements that must be met before a trial court can exercise its discretion to amend an existing charge, I agreed that the charges should be amended in the manner proposed by the Prosecution. In making my assessment to amend the charges, I was of the view that the proposed amendment would not prejudice the accused.

10     Further, upon making the amendment, I followed the procedures set out in s 128 - 130 of the CPC (pertaining to the amendment of charges) where, inter alia, the plea was recorded again, time was given to the Defence to consider the amendment, and the opportunity for recall of witnesses was also given to parties. The accused then continued to the charges as amended, and neither party applied to recall any witness.

11     The two amended charges read:

First Amended Charge

You…. are charged that you, on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, MIEHOL 180206 Mie Holdings Corp 2013/2018 (“MIE18”), did engage in an act which was likely to operate as a fraud upon the investors of the Arion Asia Credit Fund SPC – AACF High Yield Basis Fund SP managed by One Asia Investment Partners Pte Ltd (“OAIP”), to wit, by selling 2.5 million notional value of MIE18 at US$25.375 when you knew that there was a bid for the said block of MIE18 bonds at or around US$33, and thereafter buying the said block of MIE18 bonds into the Arion Asia Credit Fund SPC – AACF Investment Grade Bond Fund II SP managed by OAIP at a price of US$25.5, through Pareto Securities Pte Ltd, and you have thereby committed an offence under Section 201(b) of the Securities and Futures Act (Chapter 289, 2006 Revised Edition) punishable under Section 204(1) of the said Act.

Second Amended Charge

You…are charged that you, on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, MIEHOL 190425 Mie Holdings Corp 2014/2019 (“MIE19”), did engage in an act which was likely to operate as a fraud upon the investors of the Arion Asia Credit Fund SPC – AACF High Yield Basis Fund SP managed by One Asia Investment Partners Pte Ltd (“OAIP”), to wit, by selling 1.5 million notional value of MIE19 at US$21.875 when you knew that there was a bid for the said block of MIE19 bonds at or around US$32, and thereafter buying the said block of MIE19 bonds into the Arion Asia Credit Fund SPC – AACF Investment Grade Bond Fund II SP managed by OAIP at a price of US$22, through Pareto Securities Pte Ltd, and you have thereby committed an offence under Section 201(b) of the Securities and Futures Act (Chapter 289, 2006 Revised Edition) punishable under Section 204(1) of the said Act.

The general undisputed facts and sequence of events

12     At the commencement of the hearing, parties put up a Statement of Agreed Facts (“SOAF”) setting out the undisputed matters. In the course of the trial, it was also clear that many of the events that preceded or were connected with the actions of the accused on 19 January 2016, were generally also not disputed, although the inferences to be drawn may not necessarily be agreed by parties. The main issues in dispute in this case pertained to the interpretation of the elements of s 201 of the SFA, and the inferences to be drawn from the evidence adduced, viz, the exhibits and the testimonies of the witnesses called, including the Prosecution’s expert witnesses, the witnesses from various trading counterparties, the accused’s colleagues, a representative of the main investor from the selling fund, and the accused himself.

13     I have set out the main undisputed matters below, much of which was extracted from the submissions of parties.

Main Parties and Agreements

14     The main parties were:

(a)     One Asia Investment Partners Pte Ltd ("OAIP"). At the material time in January 2016, the accused was a director, shareholder (with 83.6% of the shares), and the Chief Investment Officer (“CIO”) of OAIP. The other shareholders of OAIP included Mr Kelvin Goh (“Mr Goh”), a director and the Chief Executive Officer (“CEO”), and Mr Brayan Lai (“Mr Lai”), a portfolio manager, fixed income of OAIP. Both the accused and Mr Lai were also OAIP’s authorised traders. As the CIO, the accused had oversight and authority over all the portfolio managers of OAIP.[note: 1]

(b)     Arion Asia Credit Fund ("AACF"), Pursuant to an investment management agreement (“IMA”) dated 20 October 2014 (D42), OAIP managed a fund, AACF, which was incorporated and subsequently re-registered into a Segregated Portfolio Company ("SPC") in the Cayman Islands. Under clause 2.1 of the IMA, OAIP was to provide investment management services and to undertake management duties in respect of each of the segregated portfolios, which essentially meant that OAIP manages the sub-funds of AACF, including its assets. The management of each sub-fund was carried out by OAIP’s employees, essentially portfolio managers like the accused.[note: 2]

(i)       At the material time, AACF was governed by a Private Placement Memorandum ("PPM") dated 20 October 2014 and two Supplementary PPMs dated 26 June 2015 and 28 October 2015. The accused was one of two directors of AACF (together with Mr Lai). Holders of shares in AACF refer to the investors who have subscribed for shares in any of the sub-funds.[note: 3]

(ii)       As an SPC structure, AACF had 10 sub-funds, designated as SP1 to SP10. These included the following:

SIN

AACF Segregated Portfolios

SP Designation (internal to OAIP)

1

AACF High Yield Basis Fund (also referred to as "HYBF")

SP1

2

AACF Investment Grade Bond Fund Il SP (also referred to as "IGBF')

SP5



(iii)       The accused was a co-portfolio manager of SP1. At the material time in January 2016, Mr Lai was the other co-portfolio manager of SP1. At that time, a company, Stafford Capital Limited (“SCL”) had a majority ownership of about 86.85% in SP1, and OAIP had a shareholding of 2.49%. The accused had no ownership in SP1.

(iv)       Both the accused and Mr Lai, being OAIP’s authorised traders, could conduct trades with external parties for SP1 and SP5.

Witnesses at trial

15     The Prosecution witnesses called eight witnesses, while the accused was the only Defence witness. The Prosecution witnesses were as follows:

(a)     PW1 Morgan Stanley Lily Ng (“Ms Ng”), the legal manager of SCL, which was the majority investor in SP1. In essence, she testified on events connected to SCL’s investment in SP1, and the redemption of this investment.

(b)     PW2 Goh Toh Kiat Kelvin (“Mr Goh”), CEO and a director and shareholder of OAIP. Mr Goh was SCL’s primary relationship manager and gave evidence on the circumstances leading to the investment redemption by SCL.

(c)     PW3 Mr Brayan Lai (“Mr Lai”) was a co-founder of OAIP, co-portfolio manager and authorised trader of SP1, and a director of AACF. Mr Lai gave evidence of his role in the liquidation of SP1’s investments.

(d)     PW4 Ms Goyal Megha (“Ms Goyal”) was a salesperson from Morgan Stanley. Ms Goyal gave evidence on the messages that she exchanged with the accused on the day in question, 19 January 2016.

(e)     PW5 Mr Reshad Mohd Sabed (“Mr Reshad”) was a trader from Pareto, the intermediary broker that conducted the passthrough trades. Mr Reshad gave evidence about his involvement with the accused in the passthrough trades.

(f)     PW6 Ms Low Guan Yi (“Ms Low”), the head of Asia fixed income at M&G Investments Singapore, a global asset management firm that is part of Prudential plc. She gave evidence as an expert witness for the Prosecution.

(g)     PW8 Mr Jamie Tadelis (“Mr Tadelis”), the Head of Business Development for SC Lowy Financial (HK) Ltd (“SC Lowy”). Mr Jamie Tadelis gave evidence on Bloomberg chat conversations involving himself and the accused on 19 January 2016 concerning the MIE bonds.

(h)     PW7 Mr Cheong Wei Ming (“Mr Cheong”), a fund manager at Eastspring Investments (Singapore) Limited, a global asset management firm that is part of Prudential plc. He was the second expert witness for the Prosecution.

16     As for the Defence, only the accused gave evidence pertaining to the charges. The Defence declined to call any expert witnesses, which effectively meant that they chose not to put in the reports prepared by two previously identified expert witnesses, although the Defence did use these same reports to question and challenge the evidence of the Prosecution’s expert witnesses.

Key events

17     The Defence set out in its DCS certain key matters in the chronology of events. In so far as these do not appear to have been disputed by the Prosecution, I have reproduced parts of the Defence’s chronology on the more material matters, with relevant edits for purposes of brevity. I have also included below relevant extracts from some of the trial exhibits.

Events from Oct 2014 to 18 Dec 2015: SCL’s investment/redemption

18     SCL was brought in by Mr Goh as OAIP’s first external investor in 2014. On 14 October 2014, SCL signed the Subscription Agreement (P20) and invested in SP1 with a subscription amount of US$10 million, becoming the principal and seed (i.e., first) investor in SP1. The subscription was accepted by OAIP as a manager of the Fund with the contracting parties being the Fund and the subscriber.

19     From August 2015, SP1 did not perform well. At a subsequent investor update meeting with SCL on 23 November 2015, while SCL was encouraged not to redeem its investment at the meeting, SCL nevertheless decided to do so.

20     On 18 December 2015, Ms Tan Choo Hui ("Ms Tan”) from SCL emailed Mr Goh and stated that SCL would arrange for the redemption request form to be signed, upon receipt of the form from Mr Goh. At that time, SCL was the largest investor in SP1. Owing to the size of SCL’s investment in SP1, a full redemption by SCL meant that substantially all US$13.6 million worth of positions held by SP1 (including the MIE bonds) would have to be sold in order to generate sufficient proceeds to meet SCL’s redemption request. With the majority of SP1’s assets sold to fulfil SCL’s redemption request, SP1 would no longer be viable and would have to be liquidated completely.

Events from Dec 2015 to 15 Jan 2016: Responses to SCL’s request

21     In the days that followed, the accused, Mr Lai, and Mr Goh discussed alternative options to handle SCL’s intention to redeem its investment.

22     Mr Goh stated that SCL had wanted a full redemption by the end of 2015, but that “only after much explanation” SCL had agreed to a redemption by no later than the end of January 2016. According to Mr Goh, there was “no mention of redemption price or expectation”, which led Mr Goh to believe that SCL “really just wants to exit and get his money out”. Mr Goh suggested an alternative option to the two options raised by Mr Lai, i.e., to “inject own money to keep the fund going and we work to keep the other existing investors in viable”.[note: 4]

23     On 28 December 2015, Mr Goh sent Ms Tan a copy of the redemption form and asked her to complete it and send it back for processing with the fund administrator. That same day, Ms Tan sent a scanned copy of the signed redemption form to Mr Goh and informed him that the original redemption form, together with a board resolution from SCL in respect of the redemption, would be couriered to OAIP by 31 December 2015. SCL’s original redemption form eventually sent to OAIP was dated 4 January 2016.[note: 5]

24     Pursuant to clause 9.3.2 of the PPM, the next Dealing Day for SCL’s shares to be redeemed was 1 February 2016 (the first business day of February 2016), and the redemption would be at an NAV of 29 January 2016 (the last business day of January 2016 preceding the Dealing Day of 1 February 2016).

25     Some of SP1’s smaller positions (relative to the SP1’s portfolio) were sold on 4 January 2016 (700,000 Jingrui Holdings bonds) and 15 January 2016 (1 million Indika bonds).

26     At the material time in January 2016, there was evidence that the financial outlook was dire. The Defence pointed out that there was no dispute by the Prosecution’s experts that:

(a)     Oil prices were at a 12-year low, with particular concerns about the performance of the Chinese market, and that the market was “very tenuous”, “a lot of oil and gas bonds have traded down”, “prices were moving around consistently”, and it was overall a “difficult time in the markets”.[note: 6]

(b)     “…19 January 2016 would likely have been a very difficult opening for traders... If [they] were a trader at that time, [they] would have been very cautious to bid equities or corporate bonds, especially for those related to oil industries during that time.”[note: 7]

(c)     Given the downgrade in its rating, the MIE bonds “…would have much more price volatility with regard to the trading price of those issued securities”.[note: 8]

27     Around the first two weeks of January 2016, on the accused’s instructions, Mr Lai was monitoring the market and checking for prices of bonds (including the MIE bonds) held by SP1 which may have to be sold, so as to understand where the market was heading. During this time, the prices of the MIE bonds fluctuated daily.[note: 9]

28     On 18 January 2016 (Monday), the accused reached out to his contact at Goldman Sachs, and asked Goldman Sachs for indicative bid prices of the MIE bonds. Goldman Sachs responded with indicative bids of $34 on 1 million of MIE18 and $31 on 1 million of MIE19. the accused remarked that these indicative bids were a “big move” from the previous week, and was told by Goldman Sachs that “RM selling has much bigger size so bonds has been trading down. 18s is more heavy than 19s. as a few RM were worrying about coupon payment for 18s”.[note: 10]

Events on 18 Jan 2016: The passthrough plan

29     On Monday, 18 January 2016, the injection of funds into SP5 was done on an “urgent basis”.Various parties, including Mr Goh, Mr Lai, the accused and OAIP’s compliance personnel, were all involved in various actions as follows:

(a)     The AACF board resolution was signed by Mr Lai and the accused on 18 January 2016.[note: 11] The resolution provided that “[OAIP], acting in its capacity as the investment manager of [AACF] and [SP5] had determined that it was in the best interests of [OAIP] and [SP5] to waive the Dealing Deadline and Dealing Day. The subscription application would be accepted and processed ... for the Dealing Date of 4 January 2016”.

(b)     At 6:23 pm on 18 January 2016, Mr Lai informed the accused that “SP5 [was] immediately usable”.[note: 12] Following this, the accused became the majority shareholder of SP5, holding 94.1% of SP5, with OAIP holding the remaining 5.9%. Mr Lai then took steps to ensure that trading lines with various traders, including Pareto, were established for SP5 to trade.

(c)     On 18 January 2016, the accused injected US$3 million into SP5.[note: 13]

Events on 19 March 2016: The passthrough is carried out

30     At 1:32 a.m. on 19 January 2016, the accused created a WhatsApp chat group titled “HYBF [SP1] redemption” with Mr Lai and Mr Goh.[note: 14]

(a)     The first messages were from the accused, asking “Kg [i.e., Mr Goh] have we received the redemption notice from Dato [i.e., SCL]” and “Brayan [i.e., Mr Lai], have you received the redemption notice from Ken [i.e., Mr Ken Tanizar]”.

(b)     The accused highlighted to Mr Goh and Mr Lai the “[n]eed to stay on top of things” because “liquidity is thinning out”.[note: 15]

(c)     Mr Goh confirmed that OAIP had received SCL’s redemption notice and that it had been dated 4 January 2016.[note: 16]

31     At 10:00:34 a.m., the accused sent a mass blast to at least 11 counterparties including Morgan Stanley via the Bloomberg chat terminal to ask for pricing for the whole block of MIE bonds plus INDYIJ23 bonds issued by Indika held in SP1’s portfolio “to get them to show [him] a bid”.[note: 17] Bids were received from 4 counterparties: Haitong, Morgan Stanley, BNP Paribas (“BNP”), and SC Lowy for one, two or three of the bonds.

(a)     Haitong’s bids (based on Mr Ray Xie’s chat with the accused (P6) adapted/extracted from Annex A of DCS were as follows:

S/N

Time

Party

Event

Ref

1

10:00:23

The accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5,

P6, P7,

P8, P9,

P10,

P11,

P14,

P52

2

10:00:30

Ray Xie

(Haitong)

hey bro

P6

3

10:00:34

Ray Xie

(Haitong)

sec on the mie

P6

4

10:00:44

The accused

(mass blast)

sorry, i mean bids

P4, P5,

P6, P7,

P8, P9,

P10,

P11,

P14,

P52

5

10:02:50

Ray Xie

(Haitong)

oh

P6

6

10:02:55

Ray Xie

(Haitong)

sec sec

P6

7

10:06:26

Ray Xie

(Haitong)

32 bid on MIEHOL 18 1MM

29 bid on MIEHOL 19 1MM

P6

8

10:06:52

The accused

(with Haitong)

can you quote me a bid for the block?

P6

9

10:07:00

The accused

(with Haitong)

not in pieces

P6

10

10:08:50

Ray Xie

(Haitong)

sorry will be 25/MIE 18 and 20/MIE 19 for the block for now

P6

11

10:27:17

The accused

(with Haitong)

any bid for indika 23s 2mm?

P6

12

10:27:27

Ray Xie

(Haitong)

dont trade that here bro sorry

P6



 

(b)     Morgan Stanley’s bids (based on Ms Goyal’s chat with the accused (P4 (main chat) and P64 (side chat)) adapted/extracted from Annex A of DCS [Note: Bids request and bids quote are indicated in bold]

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7,

P8, P9, P10,

P11, P14, P52

2

10:00:30

Megha Goyal

(MS)

sec

P4

3

10:00:44

the accused

(mass blast)

sorry, i mean bids

P4, P5, P6, P7, P8, P9,

P10,P11,

P14,P52

4

10:01:24

Megha Goyal

(MS)

Miehol 18 - 33/ miehol 19 - 32/

P4

5

10:01:27

Megha Goyal

(MS)

pass on INDYIJ

P4

6

10:02:11

Megha Goyal

(MS side chat)

hey Wei..

P64

7

10:02:11

the accused

(with Morgan Stanley side chat)

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P64

8

10:02:18

Megha Goyal

(MS side chat)

probably easier here given the noise on the main chat

P64

9

10:02:45

the accused

(with Morgan Stanley side chat)

Ok

P64

10

10:08:07

Megha Goyal

(MS side chat)

assume nothing ?

P64

11

10:08:53

the accused

(with Morgan Stanley side chat)

need a bid for blkock [ sic ]

P64

12

10:08:56

the accused

(with Morgan Stanley side chat)

your best bid

P64

13

10:09:02

the accused

(with Morgan Stanley side chat)

pls use the main chjat [ sic ]

P64

14

10:09:11

Megha Goyal

(MS)

ive put the bids there already

P64

15

10:09:34

Megha Goyal

(MS)

reposting - Miehol 18 - 33/ miehol 19 - 32/ INDYIJ - PASS

P4

16

10:15:21

the accused

(with MS)

for whole block?

P4

17

10:15:29

the accused

(with MS)

miehol 18s 2.5mm, miehol 19s 1.5mm ?

P4

18

10:15:42

Megha Goyal

(MS)

yes

P4

19

10:23:42

Megha Goyal

(MS)

Wei please refresh before trading

P4

20

10:45:02

the accused

(with Morgan Stanley side chat)

Wei.. presume nothing ont he MIEHOLs ?

P64

21

10:47:53

the accused

(with Morgan Stanley side chat)

nope. tks

P64

22

10:48:01

the accused

(with Morgan Stanley side chat)

all or nothing

P64

23

10:48:11

Megha Goyal

(MS)

ahh i see, so INDYIJ

P64



(c)     BNP’s bid (based on Ms Pamela Tsang’s chat with the accused (P5 (main chat)) adapted/extracted from Annex A of DCS.

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast 2 )

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

2

10:00:31

Pamela Tsang

(BNP)

hi mom pls.

P5

3

10:00:44

the accused

(mass blast)

sorry, i mean bids

P4, P5, P6, P7, P8, P9,

P10,P11,

P14,P52

4

10:00:55

Pamela Tsang

(BNP)

oh !

P5

5

10:00:57

Pamela Tsang

(BNP)

sec

P5

6

10:11:48

Pamela Tsang

(BNP)

Weiyeh- bear with us- coming right back. just got a few things coming in

P5

7

10:12:18

the accused

(with BNP side chat)

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P5

8

10:12:22

the accused

(with BNP side chat)

PAMELA TSANG, BNP PARIBAS received an invite from WEIYEH SUN, ONE ASIA INVESTMENT

P5

9

10:12:22

the accused

(with BNP side chat)

pam

P5

10

10:12:26

Pamela Tsang

(BNP side chat)

hey

P5

11

10:12:32

the accused

(with BNP side chat)

can you give me a bid for the whole block?

P5

12

10:12:38

Pamela Tsang

(BNP side chat)

which one do u hv a block

P5

13

10:12:49

the accused

(with BNP side chat)

need to clear

P5

14

10:12:58

Pamela Tsang

(BNP side chat)

which name do u own the blcok [sic] ? mie 18, 19 or indika

P5

15

10:13:03

the accused

(with BNP side chat)

miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s

2mm

P5

16

10:13:11

Pamela Tsang

(BNP side chat)

ah u mean thts the entire position already

P5

17

10:13:15

the accused

(with BNP side chat)

all three. need a bid yes

P5

18

10:13:19

Pamela Tsang

(BNP side chat)

k. seccy

P5

19

10:22:17

Pamela Tsang

(BNP side chat)

Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block

otherwise, we can bid better for say 500k each and we need an order to work the balance.

P5



(d)     SC Lowy’s bid (based on Ms Pamela Tsang’s chat with the accused (P5 (main chat) adapted/extracted from Annex A of DCS

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

2

10:00:44

the accused

(mass blast2)

sorry, i mean bids

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

3

10:01:27

 

Jamie

Tadelis

4

10:16:43

the accused

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P52

5

10:16:46

(with SCLOWY

side chat)

JAMIE TADELIS, SC LOWY FINANCIAL (H received an invite from WEIYEH SUN, ONE ASIA INVESTMENT

P52

6

10:16:46

the accused

(with SC LOWY

side chat)

Jamie

P13

7

10:17:11

the accused

(with SC LOWY

side chat)

i need a firm bid for the whole block

P13

8

10:16:46

the accused

(with SC LOWY

side chat)

can you help me with something, not piecemeal

P13

9

10:17:35

Lauri Purhonen

(SC LOWY)

Indyij23 no bid atm

P52

10

10:24:33

Jamie Tadelis

(SC LOWY side

chat)

ah…I see. Unfortunately, we don’t have a bid for the block. The only bid we have had in these particular names of late has been in the MIE 19s. Seeing little to no interest in the others at the moment.

P13

11

10:28:39

the accused

(with SC LOWY side chat)

indika 23s

P13

12

10:28:50

the accused

(with SC LOWY side chat)

any bid for 2mm?

P13

13

10:28:54

the accused

(with SC LOWY

side chat)

need a firm one

P13

14

10:29:38

Jamie Tadelis

(SC LOWY side chat)

We don’t have a bid for INDYIJ 23s….you were our last trade in that when we lifted you in 1m last week.

No buyers at the moment.

P13



(e)     At 10:18 a.m., Mr Reshad messaged the accused. In two separate two chats, a main chat and a one-on-one chat, the accused acted in the capacity of both SP1 (selling fund) and SP5 (buying fund) respectively to deal with Mr Reshad, the intermediary via the passthrough.

A) Accused acting for SP1 (selling by SP1):

01/18/2016 09:18:58 PM EST (01/19/2016 10:18:58 SGT) RSABED3 (PARETO SECURITIES PT): Ready when you guys are

01/18/2016 09:31:17 PM EST (01/19/2016 10:31:17 SGT) WY.SUN (ONE ASIA INVESTMENT): hi miehol 18s 2.5mm, miehol 19s 1.5mm, any bids for the block

01/18/2016 09:31:27 PM EST (01/19/2016 10:31:27 SGT) RSABED3 (PARETO SECURITIES PT): Hi, where can you offer these bonds?

01/18/2016 09:35:04 PM EST (01/19/2016 10:35:04 SGT) WY.SUN (ONE ASIA INVESTMENT): any bids?

01/18/2016 09:37:27 PM EST (01/19/2016 10:37:27 SGT) RSABED3 (PARETO SECURITIES PT): I can buy from you @ 24.875 for the 18s and 21.875 for the 19s - FIRM

01/18/2016 09:40:09 PM EST (01/19/2016 10:40:09 SGT) WY.SUN (ONE ASIA INVESTMENT): can you improve your 18s pls?

01/18/2016 09:40:53 PM EST (01/19/2016 10:40:53 SGT) RSABED3 (PARETO SECURITIES PT): I can improve to 25.375 for the 18s - firm

01/18/2016 09:41:14 PM EST (01/19/2016 10:41:14 SGT) WY.SUN (ONE ASIA INVESTMENT): done

01/18/2016 09:42:15 PM EST (01/19/2016 10:42:15 SGT) WY.SUN (ONE ASIA INVESTMENT): AACF HYBF sells 2.5mm miehol 18s at 25.375 and 1.5mm miehol 19s at 21.875



B) Accused acting for SP1 (buying by SP5):

01/18/2016 09:19:20 PM EST (01/19/2016 10:19:20 SGT) RSABED3 (PARETO SECURITIES PT): hi

01/18/2016 09:19:21 PM EST (01/19/2016 10:19:21 SGT) WY.SUN (ONE ASIA INVESTMENT): wait

01/18/2016 09:30:47 PM EST (01/19/2016 10:30:47 SGT) WY.SUN (ONE ASIA INVESTMENT): hi I can pay for miehol 18s 2.5mm @ 25, miehol 19s 1.5mm @ 22, any offers?

01/18/2016 09:31:38 PM EST (01/19/2016 10:31:38 SGT) WY.SUN (ONE ASIA INVESTMENT): this is for IGBF2

01/18/2016 09:31:51 PM EST (01/19/2016 10:31:51 SGT) RSABED3 (PARETO SECURITIES PT): understood

01/18/2016 09:35:39 PM EST (01/19/2016 10:35:39 SGT) RSABED3 (PARETO SECURITIES PT): hi, where you bid for these bonds?

01/18/2016 09:36:13 PM EST (01/19/2016 10:36:13 SGT) WY.SUN (ONE ASIA INVESTMENT): I can pay 25 for the 18s and 22 for the 19s

01/18/2016 09:39:55 PM EST (01/19/2016 10:39:55 SGT) WY.SUN (ONE ASIA INVESTMENT): can improve to 25.5 for the 18s

01/18/2016 09:43:50 PM EST (01/19/2016 10:43:50 SGT) RSABED3 (PARETO SECURITIES PT): okie, I sell you 2.5MN miehol 18s at 25.5 and 1.5MN miehol19s at 22. Done?

01/18/2016 09:44:57 PM EST (01/19/2016 10:44:57 SGT) WY.SUN (ONE ASIA INVESTMENT): done. AACF IGBF 2 will buy the above

01/18/2016 09:45:11 PM EST (01/19/2016 10:45:11 SGT) RSABED3 (PARETO SECURITIES PT): understood.



The above transactions were summarised in a table (P72). I have reproduced the relevant parts with highlights below.

\"\"

(f)     As a result of the passthrough:

(i)       At 10:41:14 a.m., SP1 sold 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 to Pareto at a price of US$25.375 and US$21.875.

(ii)       At 10:44:57 a.m., SP5 bought 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 from Pareto at a price of US$25.50 and US$22. [note: 18]

Events following the passthrough

32     Following the passthrough, Mr Lai was involved in the confirmation and settlement of the passthrough. Mr Patrick Koh, an OAIP analyst, was involved in the settlement process for the passthrough too.

33     That afternoon, Mr Goh updated Mr Lai and the accused that SCL was seeking an update on the redemption of the positions of the fund.[note: 19] The accused drafted responses to be sent by Mr Goh to SCL and Mr Ken Tanizar.

34     In an email on 19 January 2016 at 4:53 pm, on the accused’s instructions, Mr Goh informed Ms Tan that “given the extreme volatility in the current markets, as evidenced by the sharp drop in global equities and oil prices, many bonds have traded lower” and “[a]s before, we highly recommend that you stay in the fund”.[note: 20]

35     Despite this, SCL pushed ahead with the redemption. The remainder of SP1’s assets were sold off between 20 and 25 January 2016, so as to fulfil SCL’s redemption and effect the liquidation of SP1.[note: 21] These included another passthrough trade in relation to a block of Indika bonds sold from SP1 to SP5 through Pareto on 22 January 2016.

36     Between 25 January 2016, Mr Lai, Mr Goh and the accused discussed a request made by SCL for the accounts of SP1. The accused said he had “np” (no problem) providing these, and instructed Mr Lai to prepare the quarterly accounts of SP1 for SCL. He also reminded Mr Lai to “square off all remaining positions in time for redemption this month end”.

37     On 28 January 2016, Mr Lai commented that there was “[n]othing out of the ordinary” on the NAV statements, which were “by the book and system generated”. The accused gave his approval for the NAV statements to be provided to SCL. On 3 February 2016, Mr Lai approved the NAV pack for SP1 for January 2016.

38     SCL’s redemption was confirmed on 5 February 2016 with the redemption amount of US$6,490,977.60, processed on the Dealing Day of 1 February 2016. On around 12 February 2016, SCL sought further information from OAIP on the sale of SP1’s assets. Mr Goh and Mr Lai worked to prepare a non-disclosure agreement (“NDA”) for SCL to be signed before providing such information and liaised with SCL on this. Eventually, SCL decided not to enter into the NDA with OAIP.

The Prosecution’s case

Outline of Prosecution’s case

39     The Prosecution’s case against the accused under s 201(b) of the SFA was that he engaged in acts on the morning of 19 January 2016, which were likely to operate as a fraud upon the investors of a fund (SP1) which he was a portfolio manager of, by selling two bonds of SP1 at lower prices to another fund (SP5) which the accused had overwhelming majority shareholding in, despite knowing of earlier bids by Morgan Stanley for these bonds at higher prices. By doing so, the accused knew he would cause losses to investors of SP1 and benefit to himself.

40     The Prosecution’s case, based on the evidence adduced at trial, and set out in its various submissions, is outlined below:

(a)     The accused as a portfolio manager of the fund SP1 carried the responsibility of managing the investments of SP1. In that capacity, he was entrusted with monies by SP1 investors and therefore had the duty to sell the MIE bonds for SP1 at the highest available prices. Importantly, the evidence shows that the accused did not dispute that he owed a duty to sell the MIE18 and MIE19 bonds at the best available prices. Further, while it was not necessary for the Prosecution to prove that the accused had a fiduciary duty in order to make out an offence under s 201(b), the Prosecution took the position that the circumstances of the case suggest that such a duty was owed.

(b)     In the present case, on 19 January 2016, even before Haitong gave its bids for the MIE bonds at 10:08:50 a.m., the accused had already decided to sell the MIE bonds from SP1 to SP5.

(c)     When the accused saw the Morgan Stanley bids that Ms Goyal reposted at 10.09 a.m., he knew they were executable.

(d)     The accused did not sell the MIE bonds to Ms Goyal, or the MIE19 bonds to SC Lowy, because by that time he did not intend to sell them to the market.

(e)     Even though Ms Goyal sent a message in the group chat at 10.23 a.m. asking the accused to refresh before trading, there was no reason for the accused to have gone back to the group chat with Ms Goyal and therefore he did not see this message because prior to that he did not intend to sell the MIE bonds to her.

(f)     Even if the accused had seen Ms Goyal’s message of 10.23 a.m., if it was true that he genuinely wanted to sell the MIE bonds at the highest available prices, he ought to have asked Ms Goyal if her earlier bid prices were still valid, given that those prices were the highest amongst the bidders and he was still purportedly doing price discovery.

(g)     On 19 January 2016, when the accused received executable bids from counterparties (e.g., from Morgan Stanley, SC Lowy), he should have sold the MIE bonds to those bids because they were higher than Haitong’s bids, or he should have used those prices as market context for the passthrough trades.

(h)     The accused’s defence that he sold the MIE bonds from SP1 to SP5 at fair prices cannot be accepted because he did not do genuine price discovery and had no basis to expect Mr Reshad of Pareto to do price discovery.

(i)     If the accused was carrying out genuine price discovery, he would have checked back with Morgan Stanley before he sold the MIE bonds to SP5 through Pareto. For BNP’s bids, the accused’s claim that he did not see BNP’s bids was inconsistent with his claim he was doing price discovery. When the accused asked BNP’s Ms Pamela Tsang for bids, she responded and acknowledged. She did not state that BNP was not bidding – instead, the accused moved on. He ought to have checked back with BNP if his claim of doing genuine price discovery was true; and

(j)     In connection with the sale of the MIE bonds, the accused’s acts which likely operated as a fraud upon SP1 investors comprised the

(i)       intentional act of selling the MIE bonds from SP1 and buying them for SP5 at the lower prices pegged to Haitong’s bid through Pareto; and

(ii)       doing so with the knowledge of the earlier higher bids when he carried out the trades.

(k)     In selling the MIE bonds from SP1 and buying them into SP5 despite knowing of earlier higher bids, the accused breached his duty to sell the MIE bonds at the highest available prices. He intentionally caused a loss to the investors of SP1, as well as benefitted himself as the majority shareholder of SP5.

41     The Prosecution also made clear that:

(a)     Its position was not that the passthrough itself was objectionable, but only the price that the passthrough was actually finally transacted at. In itself, a passthrough trade was not objectionable, provided it was done at a fair price, as the accused’s duty was to get what was the highest available price for him to use in the passthrough trades.[note: 22]

(b)     The accused has a duty to sell the MIE bonds at the highest available prices, which was something the accused agreed with in cross-examination. This means that he had to seek the highest available prices to sell the bonds at, in the light of the prices that he knew of.

(c)     Further, as the charges were framed under s 201(b) of the SFA, they deal with the accused’s acts which were directly “in connection with” the sale of the MIE bonds. These acts were not limited by s 201(b) only to the act done only at the time of the sale transaction of securities, as the terms (“in connection with”) carry a broad meaning. Therefore, the higher bid prices that the accused knew of, for example, the earlier Morgan Stanley bids, must be relevant, and his duty to investors must require him to check to ascertain if he could obtain those prices to use as market context for the passthrough trades.

(d)     A duty framed in a limited way by the Defence, as being restricted only to the time of the actual transaction, would not advance the objective of s 201 to protect investors.

Evidence from material witnesses

42     To prove its case, the Prosecution witnesses called eight witnesses, including two experts for the trial. The Defence called the accused as its witnesses, but declined to call two other witnesses who had prepared expert reports, for the trial, even though the latter were originally expert witnesses that the Defence lined up for the trial.

43     I have summarised at [15] above the general roles of the Prosecution witnesses who testified at the trial. In addition, in light of the elements set out in the charges, and the nature of the s 201(b) offences alleged to have been committed, for purposes of discussing the Prosecution’s case, I will elaborate on the evidence of the more material witnesses in relation to the passthrough trades and Morgan Stanley’s bids on 19 January 2016. These would be the evidence of Mr Lai from OAIP, Ms Goyal from Morgan Stanley, and Mr Reshad from Pareto. I will also set out the opinion evidence led from the two experts called by the Prosecution, namely Ms Low and Mr Cheong.

Mr Lai’s evidence pertaining to OAIP, the funds and the passthrough

44     Mr Lai testified that he was employed by OAIP from March 2014 to sometime in May 2016, and that he reported directly to the accused. The accused was the "Chief Investment Officer", or CIO and “has oversight, in quite absolute terms, over all investment strategies and funds that One Asia has.”[note: 23]

45     Mr Lai was also a co-portfolio manager with the accused for SP1. According to Mr Lai, because of a trading halt imposed on him from 5 January 2016 until the time he left OAIP, the accused was the only one who retained the discretion to make trading decisions for SP1 sometime after 5 January 2016. Mr Lai said that to him, the trading halt imposed on him, equated to him not being a portfolio manager.[note: 24] He also testified that about two weeks before the MIE bonds were sold, which was sometime around the beginning of January 2019, the accused had instructed him to check the market for the MIE bonds and other bonds that were held by SP1 for purposes of price discovery, and he was to keep the prices of those bonds in either an Excel or Word format.[note: 25] He said that these logs were kept in the company’s folder and both he and the accused had access to them.[note: 26] Mr Lai said that there were some trades that the accused wanted to handle directly himself regarding SP1, specifically those for MIE and Indika.[note: 27]

46     Mr Lai also said that he had set up lines with Pareto, but at the time he was doing so, he did not know that they were being used to carry out the passthrough trades. He also does not know of any passthrough trades that OAIP has ever done with Pareto before that.[note: 28]

47     Sometime in late January 2016, the accused had given him instructions to confirm a set of trades from SP1 to SP5 with Pareto involving MIE and/or Indika bonds, which were passthrough trades. At that time, the accused was the sole portfolio manager of SP5. The accused told Mr Lai that he had already agreed with Pareto on the prices that the bonds were to be sold at.

48     Mr Lai said that he had no involvement in any of the discussions that the accused had with Mr Reshad, nor did he have any involvement in arriving at the prices that the bonds were sold by SP1 and bought by SP5. He also confirmed that based on P6, he was not involved in the chat between the accused and Ray Xie of Haitong on 19 January 2019. He does not recall being aware of the bid by Haitong, or that he knew about it. [note: 29]

Ms Goyal’s evidence on the bids made by Morgan Stanley

49     Ms Goyal, was a salesperson from Morgan Stanley. She gave evidence about the messages that she had exchanged with the accused on 19 January 2016, as reflected in two chats: (1) P4 – a mass chat; and (2) P64 – a one-on-one chat (see [31(b)] above).

50     In response to the accused’s request, she had posted bids at 10:01:24 a.m. in the main chat. The same bids were reposted at 10:09:34 a.m. The bids for the MIE bonds were as follows:

“miehol 18 - 33/"

“miehol 19 - 32/"

51     Ms Goyal testified that the bids were for the size of the MIE bonds that the accused had asked for i.e. 2.5 million for MIE18s and 1.5 million for MIE19s.[note: 30]

52     The accused had subsequently asked her at 10.15.21 a.m. and 10.15.29 a.m. whether her bids were for the whole block of 2.5 million for MIE18s and 1.5 million for MIE19s, and she responded “yes” 13 seconds later to his query. Before reposting the prices at 10:09:34 a.m., and before she replying to the accused at 10:15:42 a.m., she had checked with her trading desk to make sure that the prices were good.[note: 31]

53     At 10:23:42 a.m., she posted a message “Wei please refresh before trading". She explained what she meant by this message:[note: 32]

Typically, prices can become stale after a certain time, so it is just a message to him saying -- it is not saying that I can't buy them anymore, it is just me saying that, "If you are still interested in trading, please just refresh the prices with me", because there could be news coming, there could be other reasons why the prices can move, and it's just like a disclaimer, saying, "Please just refresh. Don't come back to me 10 minutes later, saying, 'I can sell you at those old prices.'"

[emphasis added]

54     Ms Goyal also clarified that the prices could go stale so if the accused or anyone else cannot come back seven or eight minutes later to confirm the trade, as the prices may have remained the same or may have changed, or the trading desk may not want to trade the bond anymore. Ms Goyal further elaborated on her “please refresh before trading" message:[note: 33]

…It's just one of those disclaimers we put. It doesn't really add anything substantively, but we still put that disclaimer because the conversation has gone cold, there's no other further conversation happening. So, in a way, it's just to close the topic, that, "Just refresh before trading."

Mr Reshad’s evidence on the passthrough trades

55     Mr Reshad testified that in 2015 and 2016, he worked for a Nordic investment bank called "Pareto Securities” where his role was to carry out institutional sales for high-yield bonds, and his job scope was to find capital from clients in Singapore and Hong Kong.

56     Mr Reshad said that when he was performing this role, it was very rare for him to do a passthrough trade for a bond that Pareto had not placed. For the MIE bonds, he had agreed to carry out a passthrough for the accused who had engaged him for this task. Mr Reshad said that he trusted the accused’s judgement on the prices to do the passthrough.[note: 34] In Mr Reshad’s words:[note: 35]

No, so this is a passthrough. This is a straightforward case of a client transferring bonds from one fund to another. So the price at which he did or the price that I was instructed at which to do it I felt was a price the client knew best, so I leaned on the client's judgment for that price.

[emphasis added]

57     Leading up to this transaction, Mr Reshad had exchanged a phone call with the accused (see transcript at P55) on an unspecified date where Mr Reshad had said:

... I just want to let you know [that] the accounts are all set up. If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great."

[emphasis added]

58     Mr Reshad explained that he told the accused to let him know the price, and the amount as he was totally leaning (i.e. relying) on the accused for the price because, for Mr Reshad, he was facilitating a straightforward execution and just wanted to know the price that the accused wanted him to do the transaction at.[note: 36]

59     Mr Reshad said that as this would be a passthrough done for a bond that he does not actively trade, he trusted the accused’s judgement on price, and did not believe that he himself has an obligation to do price-discovery for the passthrough. Mr Reshad said that there wasn’t even a consideration for him to look for buyers and sellers. Neither did he recall the accused telling him to conduct price discovery, nor did he expect the accused to ask him to do so.[note: 37]

60     Mr Reshad also said that he did not know who were the investors for SP1 and SP5, and specifically, he did not know that the accused was the majority shareholder of SP5 at that time.

61     Mr Reshad said that in the course of the passthrough trades:

(a)     The accused had made use of two separate chats to carry out the buying and selling of the MIE bonds, with SP1 selling to Pareto done by way of a group chat (started by Mr Reshad), and SP5 buying from Pareto carried out by way of a single/one-on-one chat (started by the accused). Mr Reshad said that he does not know why the accused started the single chat, as he had expected the correspondence for the buying and selling to take place by way of a group chat.[note: 38]

(b)     Mr Reshad said that as it was the same party buying and selling the bonds, he just relied on the accused for the price, and so when the accused unilaterally improved his offer to buy the MIE18 bonds (for SP5) from 25 to 25.5 at 10.39.55 a.m., Mr Reshad presented the corresponding adjusted price of 25.375 (25.5 minus Mr Reshad’s spread of 0.125) to the accused to buy the bonds from SP1 correspondingly.

(c)     Then the accused, on behalf of SP1, had said “done” to confirm the trade i.e. buy for SP1. For MIE19 bonds, the accused sold the bonds at 22 from SP1 to Pareto and bought the same bonds at 21.875 from Pareto for SP5.

62     The passthrough trades, carried out between the accused and M Reshad, were reflected in P72 (an exhibit produced by the Prosecution). I set out again an extract of P72 to reflect the trade.

\"\"

63     Mr Reshad confirmed that Pareto primarily does passthrough for bonds that Pareto placed, for which they were able to participate in the price discovery and discussion process. But for this passthrough trade, the price discovery was not done because he trusted the accused. Mr Reshad also said that at the time of the transaction, he did not think much about the pricing and executed it “without paying much heed to the price at which he did”. He did not find anything suspicious during the transaction.[note: 39]

Evidence from the experts

64     The Prosecution called two experts to render opinions concerning the passthrough trades of the MIE bonds. Both experts also produced reports which set out their analysis. I summarise the main aspects of their evidence below.

    (1) Evidence of Ms Low Guan Yi (“Ms Low”)

65     Ms Low is the head of Asia fixed income at M&G Investments Singapore, a global asset management firm that is part of Prudential plc. In this role, she oversees a team of 20 fund managers and analysts, managing multiple fixed-income funds. The funds are mostly invested in bonds issued by governments and corporations domiciled in Asia

66     Ms Low was called as an expert in the area of fund management of bond funds with experience in trading. For the trial, she prepared a written report rendering her opinion on trades carried by the accused for the MIE bonds (see P67 – report dated 25 May 2022).

(a)     Her position in both her expert report and her court testimony was that the accused owed a duty to obtain the best available prices for the sale of the MIE18 and MIE19 bonds.[note: 40] She testified that “[her] experience over the entire course of [her] career has been consistently that investment managers need to ensure the best outcome for clients”.[note: 41]

(b)     In her expert report, Ms Low specified that the accused owed a duty to ensure “best execution” which involves achieving optimal economic outcome, taking into consideration the market circumstances.[note: 42] This duty is usually met by asking at least three to five counterparties for prices and selecting the best executable price for the trade.[note: 43] She also made clear that this was the case, even though there were no applicable guidelines from MAS in place at the time, given that this duty is “part and parcel” of the duties and obligations expected of fund managers.[note: 44]

(c)     When asked by the Prosecution to elaborate on her evidence, Ms Low testified as follows:[note: 45]

Q:    … I want to ask you more again about this, which is: quite apart from these published documents, as far as the fund management industry, itself, is concerned, are there obligations, standards, or duties required of a fund manager outside these published documents and outside the PPM and the IMA? Can you respond?

A.    I think outside of the standards, the PPM, the IMA, as a manager of somebody else's money, I think it is understood that, you know, I have to behave in an honest, diligent, take my best efforts, protect the interests of the investor, even without these standards in place.

Q.    What do you mean by "even without these standards in place"?

A.    It's so as to demonstrate fair play. Right? The investor pays me a fee for managing his money, so I have to take due care, exercise proper diligence and effort and process, and, again, in my dealings, I should not harm the interests of the client.

Q.    So what you're saying is that outside the PPM, outside the IMA, other than what the PPM and IMA have said, and apart from certain publications having set out certain standards, what you've just said is that, in terms of the fund management industry, there are such obligations on the part of the fund manager? I just want to be clear that --

A.    Yes, there should be these obligations on the fund manager. There should be these obligations on the fund manager.

Q.    I had asked a question which you had not answered because my learned friend had stood up to object, and that question was: if these obligations that you've just said of a fund manager are not adhered to, what consequence, if any, would there be to the investor of funds?

A.    If there's a financial loss suffered by the investor and clearly, because of –

Q.    No, I'm not asking you about financial loss. My question is even broader, which is: if those standards that you just referred to are not adhered to, what consequence, if any, may there be to investors? Because when you answered if there is financial loss, you're already assuming a consequence.

A.    Back to my former answers, the reason why -- the Association of Fund Managers of Singapore and why they set out a list of standards and code of conduct is to instil confidence and faith in the investment management industry, including fund management industry, for the healthy development of the industry. So if such standards or such obligations are not upheld, to answer your question specifically, it would impact the ability of investors to believe in the industry and, hence, place their investments through the industry.

[emphasis added]

(d)     In addition, Ms Low said that besides exercising due care and diligence, when a fund manager decides on strategies, and whether to buy or sell securities and in what quantities, the process of carrying out the strategy must be consistent with the obligation to achieve the best result for the client.[note: 46]As regards the concept of fiduciary duty which she mentions as being owed to the client, Ms Low understands this to mean that the manager owes responsibility to the client to exercise due care and diligence and to do his best for the client. This would include managing conflicts of interest, mitigating conflicts of interest, and ensuring the client was not disadvantaged by the carrying out of his work. She further said that in the fund management industry, there is a generally accepted standard that fund managers owe fiduciary duties.[note: 47]Further, in the fund management industry, there is a generally accepted standard that fund managers need to resolve conflicts of interest equitably and fairly. This would ensure a fair outcome for the client ensuring that the interests of the client are protected.[note: 48]

(e)     Ms Low further opined that where the same manager wishes to sell assets from one fund while buying for another, this can be transacted via a “cross trade” (two funds trade directly with each other) or via a “passthrough” (through a counterparty as an intermediary). Where the fund manager wishes to do a passthrough with a broker, he will communicate that intention to the broker, and inform the broker on the funds involved and the passthrough prices (i.e. the sell prices and buy prices of the securities). He will also agree with the broker on the spread that he would earn As part of the fund manager’s fiduciary obligations to both funds, the cross-trade or passthrough must be done in accordance with the principles of fair dealing and, if applicable, best execution. [note: 49] Ms Low agreed with the Defence that there was nothing wrong with carrying out a passthrough trade, but the nub of the issue was how the fund manager came up with the pricing and whether it was fair pricing.[note: 50]

67     Specifically, as regards the MIE18 and MIE 19 bonds:

(a)     Ms Low took the position that the accused’s action on 19 January 2016 to broadcast to 11 counterparties at the same time of his need to sell a block each of the MIE18 and MIE19 bonds, and his actions to make it very clear that he needs to clear the bonds, taken into account the difficult conditions for MIE bonds, “..actually serves to depress the prices that he's likely to get.”[note: 51]

(b)     In any event, the fact that three counterparties came back quite swiftly with bid prices in the face of such supposedly difficult conditions means that the accused “…as a manager who needs to sell the bonds, [should] decide amongst the three prices what's the best price and execute the trade, rather than hold off and not execute the trade.”[note: 52]

(c)     The short duration in which Haitong/ Morgan Stanley/ BNP replied with firm bids for the bonds also showed that the bonds were tradeable even if they were not traded actively by all counterparties.[note: 53]

(d)     Given that Haitong’s bids at 10:06:26 Singapore Time (“SGT”) was 32 cents to the US dollar for MIE18 and 29 cents to the US dollar for MIE19 for 1 million in quantity of the bonds, and about 30 minutes had elapsed before Pareto’s reply at 09:37:27 PM Eastern Standard Time (“EST”) (10:37:27 SGT), the accused should have checked with Haitong whether their prices were still valid. If that was so, the accused should have sold 1 million of each bond to Haitong because Haitong’s prices were higher than Pareto’s for the two bonds, even though they were for smaller quantities.

(e)     Ms Low opined that in fact, Haitong’s prices were still lower than what Morgan Stanley quoted at 10:01:24 SGT and what BNP quoted at 10:22:17 SGT. It was thus puzzling why the accused did not ask Morgan Stanley and BNP whether their prices were still applicable with a view to selling the full quantities to them. Even if the prices no longer applied, the accused should have explored selling smaller sizes with BNP, Haitong, Morgan Stanley and Pareto with the aim of improving the best price execution for SP1. By not doing these, the accused failed to demonstrate best execution in the trades between SP1 and SP5. [note: 54]

68     Further, as regards the passthrough trades, Ms Low opined that:

(a)     Even though it appears that SP1 sold to Pareto and SP5 bought from Pareto via two separate transactions, the fact was that it was the accused who determined the buy and sell prices. Using the prices from Haitong (as reference prices even though they were lower than the prices from Morgan Stanley and BNP), he had asked Pareto to improve the bid for MIE 18 at 09:40:09 PM EST (10:40:09 SGT). In his message sent at 09:39:55 PM EST (10:39:55 SGT), The accused had raised the buying price for MIE18 from 25 cents to the US dollar to 25.5 cents to the US dollar, this enabled Pareto to improve the bid price from 24.875 to 25.375, making it better than Haitong’s price (25 cents to the US dollar) but Pareto would still earn a spread. Ms Low opined that there was no need for the accused to have asked Pareto to improve the bid for MIE 19 as at 21.875 it was already higher than the bid by Haitong (20 cents to the US dollar).

(b)      Ms Low was of the view that by the accused determining the buy and sell prices, this showed that Pareto was just an intermediary facilitating the transfer of the bonds from SP1 to SP5 using prices determined by the accused in a manner that was unfair to SP1 . The latter demonstrated that the accused had not fulfilled his fiduciary duty to SP1.[note: 55]

69     As regards the bids from Morgan Stanley:

(a)     When the accused asked for bids from Morgan Stanley, he had already indicated the quantities of the two bonds that he wanted to sell. Thereafter, the Morgan Stanley bids (Miehol 18 - 33/ miehol 19 – 32), and BNP’s bids (Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36) would be applicable to these quantities. Thus, the accused should have sold the bonds to Morgan Stanley and/or BNP in order to meet best execution to obtain optimal economic outcome from the sale of the bonds.

(b)     Ms Low opined that the accused did not need to ask Morgan Stanley again whether the prices were for the whole block. However, since the accused did ask, he should have checked for Morgan Stanley’s response. In any event, since the accused knew of Morgan Stanley’s prices, which were better than those offered by Haitong, likewise he should have checked for Morgan Stanley’s response to his question (whether the prices were for the whole block).[note: 56] He could also have at least asked Pareto to match Morgan Stanley’s bid. Instead, the accused went ahead to sell the bonds from SP1 to SP5 through Pareto.

(c)     As a result, SP1 investors were clearly worse off as they could have obtained better prices for the two bonds had the accused sold them to Morgan Stanley and/or BNP. The accused could have sold the MIE18 bonds to BNP and the MIE19 bonds to Morgan Stanley or sold both bonds to either of them. Any of these permutations would have resulted in a better economic outcome for SP1 investors than the prices sold to SP5 through Pareto. Thus, the accused failed to demonstrate best execution in trading the bonds between SP1 and SP5. [note: 57]

70     As for whether the accused could have missed out on a price given by a counterparty, Ms Low stated that “If many counterparties came back with prices, yes, it's possible to miss out one or maybe even two of the prices that came back. But on 19 January, given only five counterparties came back with prices, I think it reasonable to expect the accused to have seen most of these prices that came back.”[note: 58]She clarified her answer further:[note: 59]

Q.    What do you mean by "most of these prices that came back"? What was your reference there to?

A.     I think that the three that came back quite promptly, by 10.09, which would be Haitong, Morgan Stanley --Morgan Stanley came back first -- Morgan Stanley, Haitong and Barclays quite close, think these three, the prices should have been picked up on, and any questions that the accused had, the answers should have been followed through on, because these three came back quite promptly. The SC Lowy's prices that came back at 10.16, I think we have already answered that it seems that he saw the price for MIE19 given by SC Lowy. Now, the BNP exchange took a bit more time. BNP only came back at 10.22, but prior to that, there was quite a few questions and answers between the accused and the BNP salesperson to verify what is the size of the position he's looking to sell. So I would expect then the accused to look out if BNP came back to him with a price, since there was quite a bit of question-and-answer between the two of them.

[emphasis added]

71     She further commented that “…given that he is the one deciding for both funds, to ensure independence and objectivity, it would be better to get another manager to represent SP1 in the selling, rather than him acting for both funds.”[note: 60] Ms Low said that even if there was no specific policy or mention in the PPM or IMA on how prices are set our determined, or the actions or measures or conditions to demonstrate best execution, “…there would be a need to demonstrate best execution so as to meet the fiduciary obligation to the client”.[note: 61]

72     Ms Low was of the view that the accused had failed to meet best execution requirements in the trading of the bonds or selling of the bonds from SP1. Ms Low explained her opinion as follows:[note: 62]

…Between 10.06 and 10.09, he had clearly responded to prices from Haitong and Morgan Stanley, and of these two price, Morgan Stanley prices were the higher ones. He should have followed through to trade on those prices… As in acknowledged or shown that he has seen the prices provided by Haitong at 10.06 and the prices provided by Morgan Stanley at 10.09. Between the two, it's clear that the best executable prices would be to sell to Morgan Stanley. So best execution would require that he sell the bonds to Morgan Stanley or at least use the Morgan Stanley prices as reference.

[emphasis added]

73     In addition, Ms Low opined that the accused had breached fair dealing in that he had benefitted SP5 at the expense of SP1. This is because “By passing through the bonds, meaning SP1 selling at a lower price than what SP1 could have gotten in the market, the beneficiary was SP5.”[note: 63](emphasis added)

74     On whether the accused breached his fiduciary duty to SP1, Ms Low opined that:[note: 64]

My opinion is the process did not manage or mitigate the conflicts of interest. That's one. My second opinion is he breached his fiduciary duty to SP1 because the process of selling the bonds from SP1, that the whole process did not meet the requirements of best execution and fair dealing.

[emphasis added]

75     Ms Low added that she took the position that the accused had breached his fiduciary duty “… because he did not ensure that SP1 was not disadvantaged in the passthrough. By "disadvantaged", [she] means having an economic outcome in the passthrough that is worse than what SP1 could have gotten in the market”.[note: 65] In addition, when asked further by the prosecutor on her view about his breach of fiduciary duty, she elaborated as follows:[note: 66]

Q.    So another question I want to ask you, perhaps in a more general way, is: if the accused had seen any of the bids from the other counterparties, other than Haitong, and then he carried out the passthrough trades of theMIE18 and MIE19 with Pareto in those prices that we have agreed set out in your report, has he breached his fiduciary duty?

A.    The other prices received would be Barclays for MIE19 at a price of 25, which is higher than the passthrough price of 21.875. SC Lowy gave a price of 28.5 for the MIE19s, which is also higher than the passthrough price used of 21.875. So for MIE19s, I would agree that he has not fulfilled best execution requirements.

Q.    My question was about fiduciary duty.

A.    And hence he's in breach of his fiduciary duty to SP1.

Q.    Your answer was on MIE19?

A.    Correct.

Q.    What about MIE18?

A.    MIE18s, we would have to use the Haitong prices and the Morgan Stanley prices.

Q.    What do you mean, "we would have to use"?

A.    Because only Haitong, Morgan Stanley and BNP came back with prices for the MIE18.

Q.     So if the accused had seen those prices, would he have breached his fiduciary duty by passing through the trades of MIE18 to Pareto?

A.     Yes, he would have, because if he had seen those prices, they were all higher than the passthrough price of 25.375 used for the MIE18s.

Q.    Earlier, you talked about MIE19, the price SC Lowy gave for MIE19. You also talked about Barclays. Now, we know that for the MIE19, Morgan Stanley also came back with a price.

A.    Correct.

Q.     So, again, I then need to ask you: if the accused had seen the Morgan Stanley price of MIE19, then, likewise, in passing through the trades with Pareto at the prices we know, the Pareto prices, did he breach his fiduciary duty?

A.     Yes, because the passthrough was at a lower price.

Q.    And I also want to ask: in terms of my questions here, if he had seen the prices of these counterparties and passed through the trades of MIE18 and MIE19 with Pareto at the Pareto prices, did he breach best execution?

A.    He breached best execution by passing through at prices lower than what he had seen. Again, your question is if he had seen those prices.

Q.    Yes.

A.     So if he had seen those prices and they were all higher than the Pareto prices, then he breached best execution, and hence fiduciary duty, by passing through Pareto at those lower prices -

[emphasis added]

(2)    Evidence of Mr Cheong Wei Ming (“Mr Cheong”)

76     Mr Cheong is a fund manager at Eastspring Investments (Singapore) Limited, a global asset management firm that is part of Prudential plc. He is part of the fixed-income dealing team which executes trades and engages market participants. He prepared an expert report pertaining to the execution of trades including of bonds for this case (P68– dated 27 May 2022). He also gave evidence in court. The Defence highlighted that Mr Cheong had stated in court that he was giving evidence as an expert on bond trading, and not as a fund manager.[note: 67] However, Mr Cheong confirmed that as he has been a portfolio manager since 2008, he was giving his opinion based on his experience both as a bond trader and a fund manager.[note: 68]

77     In the present case, Mr Cheong took the position that the accused owed a duty to ensure that he obtained the best available prices for the sale of the MIE18 and MIE19 bonds.[note: 69] Specifically, in his expert report, Mr Cheong stated that when a fund manager wishes to sell bonds, he should check for prices “in order to find the best available price to maximise the investment return”.[note: 70] Mr Cheong further stated that even in situations where there was low liquidity for a bond, this does not mean that there will be no bids in the market for the bond.[note: 71]

78      As for whether the quotes received by the accused in this case were executable, Mr Cheong stated that where a request for a bid provides the security identifier and the quantity of the bond, a bid received in response should be understood to be a tradeable/executable bid.

79     Specifically, on 19 January 2016, at 10:00:23 a.m. and 10:00:44 a.m. when the accused first sent out the following messages to the counterparties to ask for bids for three bonds he wanted to sell, the accused had provided the security identifier and quantity of the bonds. For the MIE bonds, he was asking the counterparties whether they wanted to bid for the two bonds of quantity 2.5 million of MIE18 and 1.5 million of MIE19. Mr Cheong said that it was clear that the accused’s message contained the quantity and the security identifier of the bonds that he wished to sell.[note: 72]

80     As regards the bids from Ms Goyal of Morgan Stanley, Mr Cheong stated the following:

(a)     Having regard to the earlier message by the accused asking for bids, the message sent at 21:01:24 EST (10:01:24 SGT) by Ms Goyal were prices to buy 2.5 million of MIE18 and 1.5 million of MIE19 at 33 cents to the US dollar and 32 cents to the US dollar respectively.

(b)     Further, the message sent at 21:09:34 EST (10:09:34 SGT) by Ms Goyal was a repeat of her bids at the same price for the same quantity of the MIE18 and MIE19 bonds. His view was that the bids contained in both the messages sent at 21:01:24 EST (10:01:24 SGT) and 21:09:34 EST (10:09:34 SGT) were firm. Mr Cheong further explained that when the fund manager or trader sends out to the counterparties the details of the trade that they want to engage in, in this case, the accused had indicated that he wanted to sell 2.5 million MIE18 and 1.5 million MIE19, when the counterparties see these details and they responded with the bid prices, unless stated otherwise, these bids are executable.[note: 73]

(c)     Additionally, when the accused posted his response “for the whole block?” at 21:15:21 EST (10:15:21 SGT) to Ms Goyal, this showed that the accused saw and knew of the bid prices for the full quantities of the two bonds which Ms Goyal had posted in her messages at 21:01:24 EST (10:01:24 SGT) and 21:09:34 EST (10:09:34 SGT). Ms Goyal had responded “yes” at 21:15:42 EST (10:15:42 SGT). That was the third time her messages showed that her bids were firm.[note: 74] Also, having asked her, the accused should have checked to make sure if she had responded to his question.[note: 75]

81     As regards the bids for MIE18 and MIE19 bonds from Mr Ray Xie of Haitong, the message sent at 10:06:26 SGT by him was a bid for 1 million of MIE18 at 32 cents to the US dollar, and 1 million of MIE19 at 29 cents to the US dollar. In response, at 10:06:52 SGT, the accused had asked him to give bid prices for the full quantities in the accused’s earlier message of the two bonds instead of the smaller quantities that he had given. The next message from Mr Ray Xie at 10:08:50 SGT quoted 25 cents to the US dollar for MIE18 and 20 cents to the US dollar for MIE19 for the full quantities the accused had earlier asked about. The bids contained in Mr Ray Xie’s messages at 10:06:26 SGT and 10:08:50 SGT were also firm.[note: 76]

82     As regards the bids of MIE18 and MIE19 from Ms Pamela Tsang of BNP, having regard to the earlier messages by the accused, the message sent at 02:22:17 GMT (10:22:17 SGT) by Ms Tsang to the accused was a price quote to buy 2.5 million of MIE18 and 1.5 million of MIE19 at 34 cents to the dollar and 31.5 cents to the dollar respectively. The rest of her message was that in the alternative, BNP could quote a higher price than for smaller quantities of the bonds the accused wanted to sell. For the remaining quantities, BNP could help the accused with the sale. The bids contained in the message sent by Morgan Stanley Pamela Tsang at 02:22:17 GMT (10:22:17 SGT) were firm.[note: 77]

83     As regards the sale of bonds from SP1 to SP5 via the passthrough trades in the present case, Mr Cheong was of the view that these trades were not appropriate because the accused should have sold the bonds at the higher bids that were given to him. Specifically, the accused should have sold the MIE18 bonds from SP1 to BNP at 34 cents to the US dollar and the MIE19 bonds from SP1 to Morgan Stanley at 32 cents to the US dollar. Mr Cheong said that it was common for Morgan Stanley to buy only MIE19 bonds alone since they did not say that they would only trade if SP1 was only selling them both bonds as a block.[note: 78] On the basis of Mr Cheong’s evidence, the accused could have sold MIE18 to one counterparty (e.g. BNP) at the price they quoted, and MIE19 to another counterparty (e.g. Morgan Stanley) at the respective higher prices.

84     As regards the bid from BNP which the accused claimed not to have seen, Mr Cheong said that since the accused knew that he had sent out a request to various counterparties as part of price discovery, he should have gone back to the chat room to ensure that there were no bids from these counterparties.[note: 79]

85     In the present case, despite receiving the higher bids, the accused instead sold the bonds at the lower prices of 25.375 cents to the dollar for MIE18 and 21.875 cents to the dollar for MIE19 from SP1, and bought the bonds into SP5 at 25.5 cents to the dollar for MIE18 and 22 cents to the dollar for MIE19 through Pareto. The accused thus failed to maximise the sales proceeds for investors of SP1. Further, the accused should not have allowed SP5 to buy the bonds at prices that were to SP1’s detriment. At the minimum, SP5 should have bought the bonds at prices equal to the highest bids given by BNP (for MIE18) and Morgan Stanley (for MIE19).[note: 80]

86      The accused could have used Haitong’s bids as reference only if Haitong’s bids were the only bids he received and saw. Given that there were two higher bids from BNP and Morgan Stanley, he should not have used Haitong’s bids as the reference for the trades between SP1 and SP5. This was especially so as he saw Morgan Stanley’s bid of 33 cents to the dollar for MIE18 and 32 cents to the dollar for MIE19 which Morgan Stanley posted at 10:01:24 SGT and 10:09:34 SGT. Mr Cheong said this because the accused responded at 10:15:21 SGT to ask whether the prices were “for whole block?”.[note: 81]

87     In the present case, while the accused had reached out to 11 counterparties for the MIE bonds:

(a)     The passthrough trades that he actually carried out based on Haitong's price as a reference were inappropriate “(b)ecause from the chat conversation, there were responses from other counterparties that came back with firm bids.”[note: 82]Further, “(c)ompared to Morgan Stanley, compared to BNP prices. He should have used those higher bids that's available to him for the passthrough.”[note: 83]

(b)     Mr Cheong also said that his view that the passthrough trades carried out by the accused using Haitong’s prices were inappropriate “…because from the fiduciary duty obligation angle, the fund manager has to act in the best interests of the investor. Hence, knowing that there are higher bids in the market for the selling fund, that is the price that he should be using for the passthrough trade. And because this passthrough was actually executed at a lower bid, hence from that perspective it's not appropriate”.[note: 84]

(c)     In short, “…the accused has seen higher prices. He's aware there are higher prices. As a result, when the cross trade was being carried out at 10.41..he cannot just rely on only Haitong's price…He should at least have checked back with Morgan Stanley”[note: 85]

(d)     Mr Cheong further said that if the accused did not see BNP’s prices when posted, and if Morgan Stanley was refreshed, the accused could have used Haitong’s bids as a reference if Haitong’s bids were the only bids he received and saw. Mr Cheong further said that there were in fact no firm bids at 10.41 am:[note: 86]

88     In court, Mr Cheong said that his disagreement was with the price the accused used in the execution of the sale, in that the accused should have taken into account the BNP and Morgan Stanley’s prices.

(a)     In the case of Morgan Stanley’s prices, Mr Cheong said that after Morgan Stanley had said “please refresh before trading”, the accused should have gone back to Morgan Stanley to check with Morgan Stanley because they had given the best prices for the bonds the last time. This duty to check, was because “…fund manager owes a fiduciary duty to your investor because they are entrusted with the money to manage in the best interest.”[note: 87] This means getting them the best returns.[note: 88]

(b)     While there was no mandatory requirement or specific regulation for the accused to re-do price discovery for the MIE bonds after the refresh by Morgan Stanley on 19 January 2016,[note: 89] and even though it is not stated in the policies, Mr Cheong said that to ensure fair dealing due to the fiduciary duty owed to the investor, the accused has to act in the best interests of the fund and get them the best returns by selling at the highest possible price and buying at the lowest possible price. This applies even if there is no central dealing desk and the fund manager and trader wears the same hat to do the planning and execution of the trade.[note: 90]

89     Further, Mr Cheong said that the duty to act in the best interests of investors means ensuring that the interests of the investors are looked after and avoiding benefitting oneself at the expense of the investor.[note: 91] This is rooted in the fact that investors have entrusted their money to the fund manager to look after for them.[note: 92]

90      Mr Cheong elaborated that acting in the best interests of a fund included getting the “best returns” which means selling at the highest possible price.[note: 93] This obligation, in his view, was breached by the accused because he executed the trades at a low price,[note: 94] with knowledge of the other earlier higher prices. Thus, he maintained his view that the trades were inappropriate because the accused had to act in the best interests of the investors and could not execute the passthrough trades while knowing that there were higher bids in the market.[note: 95] In Mr Cheong’s view, as the fund manager of SP1, the accused owed a fiduciary duty to the investors of SP1.[note: 96]

91     Further, on the issue of the conflict of interest in the present case:

(a)     Mr Cheong explained that as the accused has a financial interest, specifically a vested interest in the buying fund (SP5), and in this circumstance where the buying fund has bought the bond at a price that was lower than the available bids in the market, there was this potential gain that he, being an investor in the buying fund, would stand to gain.

(b)     Mr Cheong explained that the accused has to act in the best interests of his investors and that he should not be benefitting at the expense of the investors. This was the understanding Mr Cheong has from his years in the industry, whether be it a trader or be it a fund manager.[note: 97]

(c)     Here, being a major shareholder in SP5, and buying the bonds at a bid price that was lower than another available bid in the market, the accused stood to gain from that transaction. It also meant that the investors in SP1, which was the selling fund, would have lost out on the opportunity of selling at a higher bid.[note: 98]

92     Mr Cheong further opined that in the passthrough trade, Pareto was merely acting as a broker to facilitate the trades of the two bonds between SP1 and SP5. This was clear from the messages exchanged between Pareto and the accused where Pareto made the spread between the bid and offer prices put up by the accused. Specifically, from the chat messages between Pareto and the accused, Mr Cheong said that it appears that Pareto was not doing any price discovery for the accused,[note: 99]and from the sequence of the conversation between the accused and Mr Reshad, “…Mr Reshad is just taking the price from [the accused], both for SP5 and SP1, to help to pass through the trade.”[note: 100]

93     Finally, Mr Cheong said that had the accused sold the two bonds from SP1 to the market, SP1 investors would have made the additional amounts (in US currency, excluding transactional costs), of $215,635 and $151,875 as shown in the following tables:

Quantifying the impact of selling to Pareto instead of to the market Bid for 2.5 million of MIEHOL 18

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(2.5 million x bid price)

Impact ($)

(sales proceeds – 634,375)

1

BNP

34

850,000

215,635

2

MS[note: 101]

33

825,000

190,625

3

Pareto

25.375

634,375

-



Quantifying the impact of selling to Pareto instead of to the market Bid for 1.5 million of MIEHOL 19

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(1.5 million x bid price)

Impact ($)

(sales proceeds – 328,125)

4

BNP

31.5

472,500

144,375

5

MS

32

480,000

151,875

6

Pareto

21.875

328,125

-



94     At [52] of the PRS, the Prosecution emphasised the following:

(a)     First, the two experts have maintained throughout that the accused ought to have gone back to check with Ms Goyal even after her 10:23 a.m. message of “please refresh before trading”, even though there was no specific rule or regulation mandating or requiring this, and that this was part of the accused’s duty.

(b)     Secondly, they testified that the passthrough trades were not appropriate because the accused did not go back to Ms Goyal to check, given that he knew of her earlier higher prices.

95      The Prosecution also highlighted that the Defence did not call any of their own expert witnesses to contradict the key aspects of Ms Low and Mr Cheong’s evidence.

The Defence’s case

Duty owed to SP1 investors by the accused as the portfolio manager of SP1

96     The Defence argued that breaching a duty to take reasonable care, for example, cannot in itself and without more, result in an offence under s 201(b). Instead, for an offence under s 201(b) to be made out, this requires deception, deceit or dishonesty on the part of the accused.

97     Further, there was no offence committed in the present case as there was plainly no such legislation, regulation, guideline, or other policy statement with equivalent effect, dictating what the accused ought to have done to conduct the passthrough – including that he should / ought to have:

(a)     Sold the MIE bonds “shortly after” 10:15 a.m. (when Ms Goyal had confirmed that the bids made were for the blocks of MIE bonds that the accused had sought bids for;

(b)     Broken up the block of MIE bonds into MIE19 and MIE18 for separate sale of these bonds; or

(c)     Checked back with Morgan Stanley for a new bid price after the earlier bid had been refreshed.

98     In addition, as regards the meaning of fraud, the Defence argued that

(a)     The Prosecution’s conclusion[note: 102] - that the cases they cited stand for the proposition that fraud should be found where there is: (i) a breach of duty; and (ii) the accused knew or intended this breach would cause loss to investors or gain to oneself - was not correct.

(b)     It cannot be the case that a breach of duty with the intention of causing loss to others or gain to oneself, amounts to “fraud” under s 201(b). There must be an element of dishonesty, deceit, or deception. This is also clear from the species of fraudulent conduct that are set out in s 200(1) of the SFA.

99     As for the element of “likely to operate as a fraud” under the Second limb of s 201(b), the Defence took issue with the Prosecution’s contention that since there must be some difference in the first (“operate as a fraud”) and second (“likely to operate as a fraud”) limbs of s 201(b), this “must mean” that:

(a)     “the accused need not have intended to operate a fraud, and that the effect of the act, i.e., ‘operate as a fraud’, must be assessed objectively”; and

(b)     “the mens rea of the two limbs cannot be the same”, and “the offence is made out “so long as the accused does an act which objectively operates as a fraud on investors. The mens rea is the doing of such an act intentionally”.

100    The Defence argued that the word “likely” in the context of the phrase “likely to operate as a fraud” instead means that fraud has operated as a matter of factual causation, so long as it is likely to have operated. In other words, the word “likely” merely caters for a situation where no sale or purchase of securities has been induced or the market price of securities was not actually affected, so long as there was such potential.

101    I move on now to set out in some detail the evidence of the accused on various aspects of this case.

Evidence of the accused

102    Despite initially indicating that they intended to call two expert witnesses, and initially tendering the reports of these two potential experts, the defence counsel ultimately declined to call these two potential experts to give evidence. As such, the accused was the sole witness for the Defence.

103    I summarise the main aspects of the accused evidence below.

Role and duty to investors

104    In December 2015 and 2016, the accused was a director of AACF, the CIO and a director of OAIP, which itself was the fund manager of AACF. As for the sub-funds of AACF, both Mr Lai and the accused were the portfolio managers. The accused explained that this was a functional role, whereas the fund manager is the legal entity, and that “…in fund management activities, it includes a portfolio manager, trader, analyst, settlements. So all these are jobs pertaining to fund management.”[note: 103] He testified that portfolio managers in OAIP are there to make investment decisions for their portfolio, whether to buy or sell, and they had to do the trading themselves.[note: 104]The accused testified that as a portfolio manager, he had many things to do to manage the sub-fund, but as a director of the fund, there was not much to do on a day to day basis.[note: 105]

105    In the case of his role as a portfolio manager, the accused clarified that he was “more involved with the fund activities ranging from research down to execution of trades down to reporting and marketing. So it covers the entire spectrum of work required for the SP”.[note: 106] He stated that “(i)n One Asia, we are a much smaller firm, so the portfolio manager does everything, everything from research to price discovery, to execution, to marketing. We …do everything.”[note: 107] Between the accused and Mr Lai, who was the other co-portfolio manager, the latter was predominantly focussed on SP1 as compared to the accused who had duties for the other funds.

106    The accused agreed that as the portfolio manager of a sub-fund like SP1, he acts in the best interest of the sub-fund that he manages. [note: 108] He agreed that when a portfolio manager goes about to sell any asset of the sub-fund, he has to sell at the highest available price that he could obtain given the circumstances.[note: 109]

Q.    Now, I want to ask you, as the portfolio manager of SP1, or for that matter as a portfolio manager of any of the sub funds, when you go about to sell any asset of a sub-fund, did you have to sell at the highest available price that you could obtain?

A.     Yes, I do.

Q.    All right. That is logical because it is in order to get the highest available price for the sub-fund in selling any asset of the sub-fund, isn't it?

A.    Yes, it's logical to get the highest available price at that point of time given the circumstances then.

Q.    I understand. And it is also logical and makes sense because the investors of a sub-fund invested money into the sub-fund for the portfolio manager to invest, including to sell, correct? So if you don't understand my question, my question simply is that what you agreed as to the portfolio manager having to sell at the highest available price in the circumstances any asset of a sub-fund, it is because investors of a sub-fund invest the money into the sub-fund for the portfolio manager to invest, including to sell assets. It is just a follow-on question. Do you agree?

A.     Yes. In general I agree, yes.

Q.    That's fair. Now, do you also agree with me that investors of a sub-fund, when they invest money to the sub-fund, they entrust their money to the portfolio manager to invest, including to buy using their money or to sell assets of the sub-fund?

A.     Yes, I agree.

Q.    Having heard from you on these questions I asked, would you be able to also agree then that for a portfolio manager to sell any asset of a sub-fund at the highest available price you could obtain in the circumstances, that was also a duty of the portfolio manager?

A.     Yes, I agree.

[emphasis added]

107    Specifically, the accused agreed that “in the course of liquidating SP1's assets, the portfolio manager of SP1 had a duty to sell its assets at the highest available price so that the … sub-fund SP1 would get back as much sale proceeds as possible”, and “…the investors of the sub-fund could get back as much sale proceeds as possible.”[note: 110] However, the accused said that his view that this duty was derived from his employment contract with OAIP, and that as a portfolio manager, he does not have any fiduciary duty to the investors of SP1.[note: 111] However, I note that despite the accused’s claim that his duty was derived from his employment contract, the accused’s employment contract was not actually produced in evidence by the Defence.

108    When clarification was subsequently sought on his answers, the accused apparently changed his position and said that no one owes any duty to the investors.[note: 112]

COURT:

The second part doesn't really answer the question I pose. So in terms of trading or investment, does anybody owe any duty to the investors of SP1?

A.

No, your Honour, not to my understanding.

COURT:

So nobody owes any duties to the investors of SP1 for trading or investment?

A.

Yes, your Honour. Because there's the investment management agreement, it's a contract. It's a commercial contract to my understanding.



109    Thereafter, while stating that “…the portfolio manager, when they sell things they sell at the highest available price”, his subsequent position was that “…the portfolio managers do not owe a duty to the investors.”[note: 113]

Conflict of interest in selling assets from SP1 to SP5

110    The accused agreed that where one sub-fund wants to sell an asset such as a bond to another sub-fund, the selling sub-fund would want to sell at the highest possible price available, while the buying sub-fund would want to buy at the lowest available price.[note: 114]

111    Despite this, the accused denied that he was in a conflict of interest position even though he was the portfolio manager and managing both sub-funds, SP1 and SP5, and he was the majority shareholder of SP5[note: 115], in the intended sale of the MIE bonds from SP1 to SP5. The accused claimed that his interest in SP5 did not create any conflict of interest and that there was (already) a conflict of interest by virtue of the sale of bonds from SP1 to SP5.

112    Nonetheless, the accused said that both Mr Lai and he did not identify this to be an issue, and they did not think there was an actual conflict of interest.[note: 116] In particular, the accused claimed that he would not actually be in a conflict of interest position if the price for the sale was fair. Further, the price would be fair, if it was determined through a price discovery process with Pareto engaged as an independent intermediary to create an arm’s length transaction.

113    Further, while agreeing with the Prosecution that in a sale of assets from SP1 to SP5, this may affect SP1 if the sale was not done at the highest price, the accused denied that there was any requirement for him to disclose such a potential conflict of interest to the SP1 investors.[note: 117]

On what constitutes a firm bid for the MIE bonds

114    The accused was questioned about the statements that he previously made to CAD. The Prosecution pointed out that in various statements made by the accused, he had stated that for a bid, the broker must use the word “firm” before it was considered as a firm quote (P79 at Q106, P81 at Q286, Q287, Q288 and Q289, P80 at Q474). Nevertheless, I noted that in his final statement that was admitted for the trial (P82 dated 6 February 2018), the accused appeared to vacillate on whether had to see both the word “firm” and the size of the bid before it is considered a firm bid.

Question 613

You mentioned in the previous interviews, that if a broker provides a quote without mentioning the word firm, it means that the quotes are indicative and you need to look out for the word 'firm' so as to know if the price quoted is a confirmed price. You also mentioned just now that Morgan Stanley did 108 not mention the size and the word 'firm'. Can you explain the quote of USD33 for MIE18 and USD32 for MIE19 here?

Answer

These are indicative quotes.

Question 614

Why are these indicative quotes?

Answer

Morgan Stanley did not mention the word 'firm' and the size.

Question 615

Do you need to see both the word and the size? 'firm'

Answer

Yes.

Question 616

If the broker only provides the size and does not say 'firm' , is the quote a firm quote?

Answer

No.

Question 617

If the broker only says 'firm' and did not mention the size, is the quote a firm quote?

Answer

Yes .

Question 618

Then do you need to see both the word 'firm' and 'size' so that you know that it is a firm quote?

Answer

Yes. I need to see both.

Question 619

If the broker only says 'firm' and did not mention the size, does it mean that it is a firm quote?

Answer

No, I need to see both the size and the ’ word 'firm'.

Question 620

Does it mean that if the broker says either 'firm' or the size, it is an indicative?

Answer

Yes .



Events leading up to sale of MIE bonds on 19 January 2016 and Mr Lai’s restricted mandate

115    Following the redemption request made by SCL on 18 December 2015, Ms Tan emailed Mr Goh and stated that SCL would arrange for the redemption request form to be signed, upon receipt of the form from Mr Goh. She also stated that the “liquidation of the funds is allowed till end January 2016 and the proceeds will be remitted to the holder, namely [SCL] in 7 days after the relevant dealing date”[note: 118]

116    According to the accused, what Ms Tan was saying was for them “…to sell everything, liquidate the fund…and sell for me by the end of January and give me everything by seven days after the first dealing date of February.”[note: 119] By way of an email dated 28 December 2015 sent by Ms Tan to Mr Goh which was copied to the accused, Ms Tan attached a “duty signed redemption form” in respect of the redemption of its investment in SP1. The accused said that by the end of December 2015, he knew that SCL wanted to proceed with its redemption in SP1.[note: 120]

117    As regards the mandate by Mr Lai to trade for SP1, by way of an email (D16) dated 4 January 2016 from the accused to Mr Lai which the accused signed off with his name and CIO designation, the accused had told Mr Lai that he was to refrain from “…all trading activities on all funds/accounts including HYBF [which was SP1] with immediate effect. This will stay in place until further instructions are given." The accused agreed that the intention of the email was that Mr Lai should not trade and that he should consult the accused before he traded.[note: 121]

118    The accused also took the position that on 15 January 2016, Mr Lai, Mr Goh and he decided to proceed with a normal redemption by liquidating all the assets of SP1 in order to facilitate the redemption on 1 February 2016 by SCL, and that the assets of SP1 had to be liquidated in a short time frame between 15 January to the end of January 2016.[note: 122] The accused denied that they had all the way until the end of January to sell the assets. This was allegedly because they needed to factor in the time for administrative purposes, including moving the funds from one account to another, time to settle trades, and reconciliation. He estimated that they needed anywhere between five to seven working days to settle the process. The accused said that the bulk of the trades for SP1 took place between 19 January 2016 to 22 January 2016.[note: 123]

119    The accused also said that as they were in a liquidation process, he was mindful and kept telling everyone to document things properly.[note: 124] Based on the trade logs of the assets of SP1 (P75), the last bond held in SP1 was called Bumi Resources and it was sold on 25 January 2016, as part of the process of liquidating the entire SP1.[note: 125]

The passthrough trades on 19 January 2016

120    The accused initially said that he could not recall if there was any documentation of the plan to use SP5 as a backup plan if necessary to buy the bonds from SP1.[note: 126] Subsequently, upon further cross-examination, he agreed that there was no written documentation of this plan, claiming that no documentation was required.[note: 127]

DPP: .

Thanks. But my position to you again is there was no documentation of the declaration or disclosure or informing Mr Kelvin Goh of this plan -- of this decision to use the SP5 as a backup plan to buy bonds from SP1. Do you agree or disagree?

A.

So documentation as in the email was the documentation that -- that I have, the email currently.

Q.

Which email --

A.

There was no written documentation. The documentation

that Kelvin Goh had returned that he asked the question

and we discussed it.

Q.

So P69, that relevant email I earlier asked you about?

A.

Yes, he asked it. He asked it and we discussed it subsequently.

Q.

Yes, I understand you say there's no documentation --

A.

But that's my sense of some of the documentation that we had.

Q.

I know what you are saying, right.

A.

Because there's no official documentation that is required, the form of the documentation. If there is --if it's required, then probably we have done it.



121    According to the accused, the liquidation process only actually started on 19th January 2016 at 10 a.m. in the morning.[note: 128] He said that in order to meet SCL’s redemption by 1 February 2016, to be valued as of 29 January 2016, it was important to take immediate steps to start liquidating SP1’s portfolio. He also said that time had to be factored in for administrative purposes, including “moving of funds from one account to another account, including time to settle trades, time for reconciliation”.[note: 129]

122    In all, the accused estimated it would take five to seven working days to settle this process,[note: 130] before SCL’s redemption could be completed and the redemption funds paid to SCL. The accused further said that it was important to exit the MIE bonds and Indika bonds as a priority, as MIEHOL was under a lot of negative headlines and Indika was also one of the distressed companies in SP1’s portfolio. The accused said that he was “…extremely concerned about MIEHOL not just being downgraded to B minus but there were a lot of indications that there is more negativity and there's more price pressures to come in the days and the weeks to come.”[note: 131] Furthermore:

... there's a double whammy per se for [MIE Holdings]. They are an oil and gas company and they are a Chinese company. And coupled with the negative news from the rating agencies where they downgrade just I think about two days back -- one to two days ago, there was a lot of pressure on these bonds. So on the 19th was when we decided to liquidate and what do we liquidate? MIEHOL bonds stands out to me that we need to exit this position quickly.[note: 132]

123    The accused also said that he had a hectic schedule on 19 January 2016. He attended a medical check-up early in the morning and was scheduled for meetings with another fund at 10:30 a.m. followed by a luncheon. He was thereafter scheduled to fly to Shanghai, China that evening at 5:05 p.m.

124    Although the timing was tight, the accused testified that “if possible, [he] would like to exit this whole position [i.e. the MIE bonds and the Indika bonds] quickly in the morning before [he left] Singapore at least in terms of the liquidation process we have started it and taken off some of the more difficult positions in the portfolio”.[note: 133]

125    Furthermore, as SCL’s redemption would have to be processed at a NAV value of 29 January 2016, there was a deadline of roughly 22 January 2016 or at least around 3 days before the end of January (taking into account the time needed to process monies from account to account, and the settlement of bonds) to liquidate sufficient positions in SP1’s portfolio to meet SCL’s redemption request.[note: 134]

126    The accused said that there was only a small window in the morning to trade. Further, the accused said that “(b)ecause [he] was due to attend a meeting, a very important board meeting, shareholders' meeting at 10.30, roughly about 10.30, so [he] tried to do what [he] could between 10 to 10.30”.[note: 135]

127    Further, as the MIE bonds are not exchange-traded securities,[note: 136] the accused said that there was no readily available price for them, unlike securities traded on the exchange where there are generally ready prices at each moment in time when the market is open.

128    As a result of his mass blast to the 11 counterparties to ask for pricing for the whole block of MIE bonds plus Indika bonds held in SP1’s portfolio, and from the sizeable drop in the bid prices from the incremental size based on Haitong’s bids, the accused said that this was evidence of the stress in the market. The accused said that his fears were if the bonds were sold in the market, there may be a market perception they were dumping the bonds.[note: 137] The accused claimed that it was at this time that he felt that the backup plan to passthrough the MIE bonds to SP5 should be activated. The accused said that he provided Haitong’s bids as the price context to Pareto sometime prior to 10:18 a.m.[note: 138]

129    In the meanwhile, the accused said that he remained hopeful of finding higher prices, as there was still time in his allocated trading window.[note: 139] He thus continued to check the various Bloomberg chat messages.

130    As regards the bid by Morgan Stanley, at 10:01:24 a.m., Ms Goyal had placed bids for the MIE bonds in a main chat between Morgan Stanley and OAIP (“Miehol 18 – 33; miehol 19 – 32;pass on INDYIJ”). However, the accused claimed that he had not seen the message at that time.[note: 140] He also said that he was in a rush because there were a lot of things happening.

131    Thereafter, apparently without having seen Morgan Stanley’s earlier message at 10:01 a.m. in the main chat, the accused responded to Ms Goyal in the one-on-one chat at 10:08 a.m. telling her he “need[ed] a bid for blkock [sic]”, “your best bid”, “pls use the main chjat [sic]”.[note: 141] According to the accused, he did this because he knew that there was a main chat, and his team (Mr Lai[note: 142] and Mr Koh) who were in that chat could assist to monitor it.[note: 143]

132    However, the accused subsequently admitted that in his chat messages with Morgan Stanley (P4), even though he had queried Ms Goyal about the bids that Ms Goyal made at 10:09:34 a.m., he did not ask if the bids were firm. Also, despite the fact that in the chat messages, she did not use the word “firm”, he inferred that they were in fact executable[note: 144] (but see [114] above).

133    The accused also stated that on 19 January 2016, when he sent out the mass blast, he wanted a price for all three bonds as a block. Except for a bid from BNP, which he claimed that he did not see, no one else (including Pareto) gave him a bid for the whole block of three bonds.[note: 145]

134    The accused claimed that he revised his strategy to sell the MIE bonds as a block when he posed the question to Ms Goyal at 10:15:21 – “MIEHOL 18s 2.5 [million], MIEHOL 19s 1.5 [million]”.[note: 146].He then said that he did not see the subsequent reply “yes" from Ms Goyal at 10:15:42 a.m.

135    At 10:18 a.m., Mr Reshad messaged the accused to say he was “[r]eady when you guys are”, signifying that he was ready to do the passthrough.[note: 147] At 10:19 am, the accused invited Mr Reshad into another Bloomberg chat conversation, and told him to “wait”. The accused said that he did this as he was still doing price discovery at that point in time and was not looking to trade yet.[note: 148] Interestingly, Mr Reshad said that he did not expect that the accused would initiate a separate chat, thinking that everything would be done on the group chat.[note: 149]

136    The accused also said that as late as 10:18:30 a.m., he still reached out to MUFJ whom he saw as “one of the potential buyers” and “pasted a message to MUFJ and check them if … they have any interest on the bonds”.[note: 150] At 10:22:19 a.m., MUFJ informed the accused they did not have firm bids and the accused said that he saw this message sometime after 10:23 a.m.[note: 151]

137    At 10:23:42 a.m., Ms Goyal messaged the accused with the following message: "Wei please refresh before trading". The accused claimed that he did not see this until sometime after 10.23 to 10.30 am.[note: 152] He agreed that while he did not see the word “yes” from Ms Goyal at 10:15:42, “…the word "yes" confirms the size and the bonds and, therefore, it's firm at 21:15:42”.[note: 153]

138    The accused emphasised that at all material times, Mr Patrick Koh, who shared the OAIP common Bloomberg account with Mr Lai, was in the main chatroom with Morgan Stanley.[note: 154]

139    The accused said that even at 10:29:38 a.m. when James Tadelis of SC Lowy responded, he was still doing price discovery for MIE and Indika.[note: 155]

140    In short, the accused’s testimony was that he was only aware of one firm, valid and executable bid for the MIE bonds and this was from Haitong. Given the poor market conditions, and the fear of a perception of dumping or ‘fire sale’ liquidation, this became the catalyst for the passthrough.[note: 156]

141    The accused said that he only decided to start the passthrough process at 10:30 a.m. when he reached out to Pareto. Before that, he had not decided to sell to SP5 instead of reaching to the market.[note: 157]

142    The accused said that there was no dispute that Pareto was involved as an intermediary in the passthrough. As, he (the accused) was aware of a possible conflict of interest, he sought to mitigate this by using an intermediary, i.e. Pareto, to ensure that the trades between SP1 and SP5 were fair. The accused said that when he gave Mr Reshad the price on behalf of SP5 at 10:30:47 a.m. by stating “MIEHOL 18, 2.5 at 25 and MIEHOL 19, 1.5”, he expected Mr Reshad to check that the price that he was offering was in line with the market.[note: 158]

143    The accused also said that he carried out the passthrough trades on 19 January 2016 because the market conditions on that day were really bad and if they were to undertake a sale to the market, there could be this perception of dumping and they were worried that people will perceive that they were in liquidation.[note: 159] The accused subsequently elaborated on this answer during a later part of cross-examination. He stated:[note: 160]

So in the morning of -- in January 19, when we went to the markets, the responses that we got was there was a general lack of liquidity. It seems like at that point of time that if we start selling things in pieces, people may perceive that we're dumping. The prices of this -- a lot of assets are much -- are very low.

So in the case of the MIEHOL bonds, sometime after we reached out to the markets and Haitong came back with a bid that was very low, so I felt that at that point of time we should do the passthrough so that generally we don't want to let people have a sense or perceive that we're in trouble.

So that's the reason why we activate the SP5 and only at that point of time we do the passthrough with this Pareto at around 10.30….

144    At 10:31:17 a.m., the accused asked Pareto (on behalf of SP1) for bids on the MIE bonds. At 10:37:27 a.m., Mr Reshad provided a bid by stating “24.875 for the 18s and 21.875 for the 19s – FIRM”.[note: 161] As this bid was lower than Haitong’s bid prices, the accused improved his bid for the MIE18 (on behalf of SP5 as the buyer) to $25.5 at 10:39:55 a.m., to ensure that the price would be higher than Haitong’s bid price.[note: 162] At 10:40:53 a.m., Mr Reshad correspondingly increased the bid to SP1 for the MIE18 to $25.375.[note: 163]

145    Arising from the exchange between Mr Reshad, and the accused (acting on behalf of SP1 as the seller, and also acting on behalf of SP5 as the buyer):

(a)     At 10:41:14 a.m., SP1 sold 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 to Pareto at a price of US$25.375 and US$21.875.

(b)     At 10:44:57 a.m. SP5 bought 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 from Pareto at a price of US$25.50 and US$22.[note: 164]

146    Separately, the accused also said that he only realised that BNP made a bid for all three bonds as a block after MAS conducted its investigation, and not on 19 January 2016 itself. On that day, while Pamela Tsang of BNP rang the bell at 10:40:31 a.m., the accused only responded to her at 10:46:47 a.m.[note: 165]

147    Having set out in some detail both the Prosecution’s and Defence’s cases, and the main evidence of their witnesses, I now discuss the law on s 201(b) and the elements of the charge.

Section 201(b) of the SFA and elements of the charge

148    Having broadly outlined the parties’ respective cases, and the main evidence given by the material witnesses, I will now set out the law on s 201(b) and the elements of the two charges, before considering whether the charges have been proven beyond a reasonable doubt.

149    The accused was charged with committing two offences under s 201(b) of the SFA. This provision reads:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

150    As noted by the Defence[note: 166], s 201(b) encompasses four limbs:

(a)     an act which “operates” as a fraud (the “first limb”);

(b)     an act which is “likely to operate” as a fraud (the “second limb”);

(c)     an act which “operates” as a deception (the “third limb”); and

(d)     an act which is “likely to operate” as a deception (the “fourth limb”).

151    Both parties accepted that the broad legislative intent behind s 201(b) can be discerned from various cases and that these cases guide the interpretation of the elements of an offence under the second limb:

(a)      First, s 201 is a ““catch-all provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA”: Ng Geok Eng v Public Prosecutor [2007] 1 SLR(R) 913 (“Ng Geok Eng”) at [34].

(b)      Second, the enactment of the SFA as a whole “…is intended to achieve at the least the following ends: (a) protect investors; (b) protect public confidence in the market; and (c) ensure that the operation of the market is not distorted” Public Prosecutor v Ng Sae Kiat [2015] 5 SLR 167 (“Ng Sae Kiat”) at [58].

(c)      Third, s 201(b) of the SFA “penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities”: Ng Sae Kiat at [58].

152    The two charges against the accused involved the commission of offences under the second limb of s 201(b), as it was alleged that the accused had engaged in an act which is “likely to operate” as a fraud. Based on the relevant wording of s 201(b) and the respective charges, it was clear that the following elements need to be proven beyond a reasonable doubt:

(a)      First Element: That, the accused on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, the MIE bonds (MIE18 or MIE19) did engage in an act, to wit:

(i)        For the First Amended Charge: By selling 2.5 million notional value of MIE18 at US$25.375 when he knew that there was a bid for the said block of MIE18 bonds at or around US$33, and thereafter buying the said block of MIE18 bonds into SP5 managed by OAIP at a price of US$25.5, through Pareto: and

(ii)        For the Second Amended Charge: By selling 1.5 million notional value of MIE19 at US$21.875 when he knew that there was a bid for the said block of MIE19 bonds at or around US$32, and thereafter buying the said block of MIE19 bonds into SP5 managed by OAIP at a price of US$22, through Pareto.

(b)      Second Element: The acts (in the respective charges) were likely to operate as a fraud upon the investors of SP1.

153    I will now consider each element in turn.

The law on the First Element: Engaging in an act that was directly in connection with the sale of securities, namely, the MIE bonds

154    As regards the first element of the offence, this essentially deals with the actus reus of the offence as well as the nature of the accused’s act. In essence, this element concerned what the accused did on 19 January 2016, and that they were directly in connection with the sale of securities.

155    At this stage, without going too much into the evidence regarding this element, I will just broadly sketch out the components of this first element that have to be proven.

(a)     First, bonds, such as the MIE bonds, are included in the definition of “debenture” in s 2(1) and s 196A of the SFA (applicable on 19 January 2016). In turn, the definition of “securities” in s 196A(a) of the then SFA also includes “debentures. Hence, the MIE bonds were a form of securities that came within the scope of s 201(b).

(b)     Second, as for the meaning of “in connection with”, referred to in s 201(b), I accepted the arguments put forward by the Prosecution that:

(i)       The dictionary definition of “connection” is “causal or logical relation or sequence” or “contextual relation or association”.[note: 167] It is evident that the word “connection” carries a broad meaning, and that so long as the acts of the accused bore a relation to the eventual sale of the MIE18 and MIE19 bonds, they can be said to have been “in connection with” the sale of these securities within the meaning of the provision.

(ii)       The Prosecution also referred to case law from the United States of America (“US”) which provides useful guidance in interpreting s 201(b) of our SFA, as this provision was derived from legislation in the US.

(iii)       In this regard, our Parliament had made clear that the predecessor of the SFA, which was the Securities Industry Bill (“SIA”), was drafted with the principles guiding the regulation of securities in the US.[note: 168] It was thus no surprise that our s 102(b) SIA was worded in a similar way as the US Securities and Exchange Commission (“SEC”) Rule 10b-5 (“Rule 10b-5”), which was the provision that both the Prosecution and the Defence referred to in their submissions. The relevant portion of the SEC Rule 10b-5 is reproduced below with parts highlighted in bold to show the similarity of that provision with the equivalent SIA and SFA provisions. Rule 10b-5 reads:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or for the mails or of any facility of any national securities exchange…

(a)    To employ any device, scheme, or artifice to defraud;

(b)    To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c)     To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

[emphasis added]

(iv)       When the SFA was enacted in place of the SIA, section 201(b) of the SFA continued to be similarly worded to Rule 10b-5(c), with some minor variations. S 201(b) reads:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act , practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

(v)       As regards Rule 10b-5 itself, the seminal US Supreme Court decision in United States v O’Hagan, 521 U.S. 642 (1997) (“O’Hagan”), in dealing with Rule 10b-5, had construed the phrase “in connection with” broadly and found that the entrustment of the confidential information in the offender there, which the latter then used to trade, was done “in connection with” the sale of securities even though these two actions occurred at separate points in time. This was because the Court there decided that the “fiduciary’s fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities”.[note: 169]Accordingly, it appears that relevant information, acts and other context leading up to a fraudulent trade can be said to be done “in connection with” a fraudulent trade, so long as the fraud is consummated in that trade.

156    The Prosecution argued that since case law from the US demonstrates that “in connection with” should be interpreted widely in this manner, a similarly broad approach should be adopted in the interpretation of the words “in connection with” in s 201(b), such that the acts of the accused, leading up to the sale of MIE18 and MIE19 bonds, can similarly be said to be acts done in connection with the sale of securities.

157    I agreed with the broad analysis by the Prosecution of the first element of the offence, and its interpretation, in particular, on how the component “in connection with” should be interpreted.

The law on the Second Element: Act likely to operate as a fraud upon investors of SP1

158    Based on the wording of the second limb of s 201(b) (“act is likely to operate as a fraud upon anyone”), the second element that has to be established to make out the offence is proof that the act of the accused is likely to operate as a fraud upon investors of SP1.

159    Both the Prosecution and Defence took different positions as to the requirements to prove this element of the offence.

160    The Prosecution took the position that the following requirements were necessary to make out this aspect of the offence:[note: 170]

(a)     First Element: The accused engaged in the act of selling the MIE bonds from SP1 at the prices as set out in the amended charges and buying the same bonds into SP5 at the prices as set out in the amended charges through Pareto, and that such act was directly in connection with the sale of securities, namely the MIE18 and MIE19 bonds;

(b)     Second Element: The accused intentionally engaged in the said act; and

(c)     Third Element: By executing the said MIE18 and MIE19 trades while knowing of earlier higher bid prices, the said act was likely to operate as a fraud upon the investors of SP1.

161    As for the Defence, it essentially argued that:[note: 171]

(a)     The Prosecution must prove beyond reasonable doubt that:

(i)       there was deceitful, deceptive or dishonest conduct on the accused’s part, which was likely to operate as a fraud upon the investors of SP1; and

(ii)       there was an intention to operate fraud upon the investors of SP1.

(b)     s 201(b) is not a strict liability offence, and requires proof of intention; and

(c)     Breaches of fiduciary duty simpliciter do not and cannot amount to fraud, so as to attract criminal liability under s 201(b).

162    For purposes of analysis, I will break down the second element further into several component parts.

(1)    Sub-component: “ the act is likely to operate”

163    The conduct of the accused in effecting the sale of the MIE bonds by SP1, and the corresponding buying of the same bonds by SP5, all done via the passthrough effected through Pareto was not disputed, nor was it disputed that these actions were carried out by the accused at the time, and at the prices and in the manner decided by the accused.

164    As for the word “operate” which appears in the phrase “…engaged in any act…which is likely to operate…” in s 201(b), I accepted the position of the Prosecution, that this word can be taken to mean to “bring about or effect” or “to cause to function”, as defined in the Oxford English Dictionary. Clearly, the focus of the word “operate” is the effect of the act.

165    Next, while not explicitly stated in s 201(b), I also accepted the position of both parties that s 201(b) is not intended to create a strict liability offence. That said, while parties agreed that a mental element on the part of the accused was required for an offence to be made out, both parties disagreed as to the exact mens rea requirement(s) needed to be proven for the present charges. In essence:

(a)     The Prosecution took the position that a s 201(b) offence was made out where the accused intentionally engaged in the trades and knew that by these trades, he would cause loss to investors or financial gain to himself.[note: 172]

(b)     The Defence, on the other hand, argued that it must be shown that there was specific intention on the part of the accused.[note: 173] In this regard, notwithstanding that the charge was based on the second limb i.e. the “likely to operate as a fraud” limb, rather than the first limb i.e. the “operate as a fraud limb”, the Defence argued that there was still a need for the Prosecution to prove that there was an intention by the accused to commit fraud, for proof of specific intention on the part of the accused. Otherwise, the Defence argued, s 201(b) would amount to a strict liability offence. In this regard:

(i)       The Defence argued that it is contrary to the fundamental tenets of criminal law to adopt an objective approach. Further, citing, amongst others, several cases that have dealt with securities offences (albeit not offences under s 201(b) of the SFA) such as the decision of the Court of Appeal in Tan Chong Koay v Monetary Authority of Singapore [2011] 4 SLR 348 (“Tan Chong Koay (CA)”), and Shapy Khan s/o Sher Khan v Public Prosecutor [2003] 2 SLR(R) 433 (“Shapy Khan”), the Defence submitted that “this Court should not lightly imply that s 201(b) of the SFA was intended by Parliament to be a strict liability offence, i.e. not requiring specific intention on the part of an accused person for an offence to be made out”[note: 174]. Further, the Defence argued that criminal liability cannot be attached simply on the basis of knowledge or intention of doing the act.

(ii)       In addition, the Defence submitted that an objective interpretation of the phrase “likely to operate as a fraud” would render the phrase “operates as a fraud” in s 201(b) redundant since if an act actually operated as a fraud, it must perforce have been an act likely to do so, and it would, for all practical purposes, be easier to prove a breach of s 201(b) by relying on the “likely to operate as a fraud” limb.

(c)     The Defence also took issue with the Prosecution’s reliance on the comments of the High Court in Tan Chong Koay (HC) and on the decision of the Ontario Securities Commission (“OSC”) in In the Matter of Bradon Technologies Ltd., Joseph Compta, Ensign Corporate Communication Inc. and Timothy German 2015 ONSEC 26 (“Bradon”).

(i)       As regards the obiter views of the High Court in Tan Chong Koay (HC) which concerned the scope of the words “…likely to create a false or misleading appearance” as set out in the then section 197(1) of the SFA, the Defence pointed out that on appeal, Chan Sek Keong CJ (as he then was), delivering the judgment of the Court of Appeal in Tan Chong Koay (CA), affirmed the position that mens rea is presumed to be a necessary ingredient of any statutory provision that creates an offence. CJ Chan had stated that:

“[47   In the realm of criminal law, it is prima facie objectionable to penalise a person for doing a criminal act which he did not intend to do or did not know would be a criminal act. The criminal law punishes or penalises persons with guilty minds. If the law makes it an offence to do a negligent, rash or reckless act (which causes harm to the interests protected by criminal law, namely, life, liberty and property), it should say so expressly.”

…

“[51]  …It must be recognised that if s 197(1) proscribes the effects of an investor’s activities in the securities market without considering his intention or knowledge regarding those effects, there would be nothing he could do in advance to prevent himself from incurring liability, short of not trading at all. In other words, he would be trading at his peril. This is arguably not the policy intention of s 197(1).”

(ii)       As regards the Canadian case of Brandon, the Defence pointed out that this was not the decision of a judicial authority, and that in any event, it was decided based on provisions of Canadian law i.e. s 126.1(1) of Ontario’s Securities Act (“OSA”), which are evidentially and materially different from both s 201(b) of the SFA and the Rule 10b-5. Specifically, the Defence pointed out that the words “reasonably ought to know” in s 126.1(1) of the OSA provide for an objective assessment of whether a person perpetrates a fraud on any person or company, while such are words absent from both s 201(b) of the SFA and Rule 10b-5. Further, unlike the position under Ontario securities law (as noted by the OSC in Brandon), the Defence argued that there was no indication or evidence that our Parliament intended for s 201(b) to impose strict liability, or for it to water down the Prosecution’s burden of proof.

166    As a preliminary matter, I agreed that a blameworthy state of mind was needed to make out the offence i.e. that mens rea was required. As regards the respective propositions of parties, I agreed with the Prosecution that there need only be shown an intention by an offender to do the particular act, done with the knowledge that he would cause loss to investors or financial gain to himself. There is no further requirement to prove that the act was done by the offender with a specific intention to operate a fraud on any person. I elaborate below.

(a)     To begin, I accepted that the Prosecution’s position more clearly aligns with the plain reading of s 201(b) since the Prosecution was proceeding on the second limb of s 201(b) in which the accused was alleged to have “engage(d) in any act… which is likely to operate as a fraud …”, rather than the first limb of s 201(b) in which the accused was alleged to have “engage(d) in any act which operates as a fraud …”. Logically, the mens rea element that applies to the two limbs cannot be the same as it is trite that Parliament does not legislate in vain.

(b)     In enacting s 201(b) of the SFA Parliament had clearly distinguished the two limbs with the word “likely”, which was the sole word that differentiated the two limbs. This word does not even appear in the predecessor provision i.e. s 102(b) of the SIA. I accepted that Parliament was thus deliberately making a clear distinction in the mens rea requirements of the two limbs of s 201(b), in that while there is a requirement to prove the intention to commit fraud when proceeding on a charge of engaging in “an act that operates as a fraud” (i.e. first limb), proof of such an intention to commit fraud cannot also be required when proceeding against a person alleged to be engaging in “an act that is likely to operate as a fraud” (i.e. second limb). For the latter, I accepted that it is sufficient for the Prosecution to show that the accused intended to carry out the act and that the act is (objectively) likely to operate as a fraud.

(c)     I would add that in coming to the above conclusion, I agreed with the Prosecution that if one were to accept the Defence’s argument – effectively that the mens rea requirement when the charge is drafted under the “likely to operate as a fraud” limb is the same as the mens rea requirement when the charge is drafted under the “operate as a fraud” limb”, quite aside from making both limbs effectively one, this would also unduly limit the scope of s 201 as a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]).

(d)     Such an approach would also go against the general tenor of s 201(b) which seeks to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities: Ng Sae Kiat at [58]. Thus, the position put forward by the Prosecution was more in accord with Parliamentary intention, and the cases which have expounded on the objectives of s 201(b). This interpretation would also ensure that parties in the securities industry act with prudence to achieve stronger protection for investors.

167    Further, in arriving at the conclusion that the act must objectively be assessed to be likely to operate as a fraud, I also drew support from the dicta of the High Court in Tan Chong Koay (HC).

(a)     In that case, the Court had to consider the effect of the same word “likely” that appeared in the then s 197(1) of the SFA, under the “likely to create a false or misleading appearance” limb. In interpreting this word, the High Court at [93] had aligned itself with the views of an academic, Associate Professor (AP) Loke (Investors’ Protected Interest against Market Manipulation at 57–58):

It is certainly true that the statutory formulation admits of an objective test that permits conviction based on conduct that is likely to create a false or artificial market. None the less, the issue of whether a price is artificial cannot be solely determined by the new equilibrium brought about by one’s orders. There must be something wrongful about these orders that result in a false or artificial market. At best, the false or artificial market is linked to one’s motivations for giving the orders. The quality of the market – whether it is false or artificial – is often informed by one’s motivation.

(b)     I note from the above extract that while AP Loke took the view that the word “likely” connotes an objective test, he had also suggested that in assessing the scope of s 197(1) SFA, it was not enough to objectively look at the effect of the offender’s act (i.e. whether the false market was objectively likely to be created), there “.. must be something wrongful about these orders that result in a false or artificial market. At best, the false or artificial market is linked to one’s motivations for giving the orders”.

(c)     Applying the same logic and considerations to an offence proceeded with under the second limb (the “likely to operate limb”) of s 201(b), this would suggest that quite aside from proof that the act is objectively likely to operate as a fraud, it must be shown that there was something wrongful about the offender’s act, in that there must have been some ulterior or improper motivation involved on the part of the offender.

(d)     I would add that when the same case when on appeal, Chan CJ in Tan Chong Koay (CA) made several pertinent observations.

(i)       At [47], concerning s 197(1) of the SFA, Chan CJ stated that

…it is prima facie objectionable to penalise a person for doing a criminal act which he did not intend to do or did not know would be a criminal act. The criminal law punishes or penalises persons with guilty minds.

(ii)       Further, at [50], Chan CJ said that:

It must be recognised that if s 197(1) proscribes the effects of an investor’s activities in the securities market without considering his intention or knowledge regarding those effects, there would be nothing he could do in advance to prevent himself from incurring liability, short of not trading at all. In other words, he would be trading at his peril. This is arguably not the policy intention of s 197(1).

168    Moving on to s 201(b) offences drafted under the “likely to operate as a fraud” limb, I am of the view that the word “likely” should also be interpreted with the benefit of the observations made by Chan CJ in relation to 197(1). In other words, aside from proof that the offending act was done intentionally by an accused person, it must also be shown that he has intention or knowledge about the effects of his act. This approach also appears consistent with the views of AP Loke cited by the High Court above, where “the motivation” of the doer of the act is something that should be considered.

169    The Defence, however, argued that the true effect of the word “likely”, rather than suggesting an objective assessment of the effect of the accused’s act, was capable of alternative interpretations.

(a)     First, it could be interpreted as being intended to distinguish the second limb from the first limb of s 201(b) of the SFA in the sense that the Prosecution need not show that fraud has, as a matter of factual causation, been operated, so long as it was “likely” to have been operated. The Defence justified this position by referring to s 197(1) of the 2006 SFA concerning an act which “create[s]” or is “likely to create a false or misleading appearance”, where the learned authors of Securities Regulations in Singapore had opined that the third limb of s 197(1) of the 2006 SFA “appears more concerned with causation”.

(b)     The Defence also referred to s 199(b)(i) of the 2006 SFA concerning a statement or information that is “likely... to induce the sale or purchase of securities by other persons”, where the Court in Public Prosecutor v Wang Ziyi Able [2008] 2 SLR(R) 61 (“Wang Ziyi Able”) held at [63] that “To constitute an offence, it is not essential to show that someone was in fact induced to sell or buy securities; it is enough to show the potential to induce such an outcome. It also does not seem to be necessary to show that the statement concerned actually affected the market price of securities...” [emphasis added]

(c)     Finally, in reference to s 415 of the Penal Code, concerning an offence of cheating which requires an act or omission that “causes or is likely to cause damage or harm to any person in body, mind, reputation or property”, the Defence argued that the reference to the words “likely to cause damage or harm” means that there was no requirement to show “actual harm”: Tang You Liang Andruew v Public Prosecutor [2023] 3 SLR 229 at [29].

170    However, with due respect, I did not see the alternative suggestions of the Defence to be consistent with the interpretation of the word “likely” (as used in the second limb of s 201(b)) to be logical or consistent with the objectives of the SFA. Instead, interpreting “likely” in the manner suggested by the Prosecution would be more consistent with the intended wide scope of s 201(b) in serving to protect investors, the latter being one of the main objectives of the SFA. In this regard, an objective assessment simply requires an examination of the facts of the case to determine whether a reasonable person would regard the accused’s act as one which operates as a fraud upon the investors of SP1.

171    At this stage, I would like to also make a further observation about the word “likely” in the second limb of s 201(b). This is not a word that appears in either the US Rule 10b-5(c), or s 102(b) of our then SIA (the predecessor to our SFA). Specifically, the wording of s 201(b) of the SFA makes it clear that what is prohibited under the second limb is “…any act, practice or course of business which….is likely to operate as a fraud”. In contrast, both Rule10b-5(c) and s 102(b) SIA[note: 175] make unlawful any act, practice, or course of business which “would operate as a fraud”.

172    It could thus be argued that considering the difference in wording between s 201(b) of the SFA on the one hand, and Rule10b-5(c) and s 102(b) of the SIA on the other, the word “likely” used in s 201(b) suggests a lower degree of certainty than the more definitive word “would” used in Rule10b-5(c) and s 102(b) of the SIA. Thus, in the case of s 201(b), it would suffice for a reasonable person to objectively assess that fraud is a likely consequence, rather than for proof that fraud would be caused in the case of Rule10b-5(c) and s 102(b) of the SIA. Be that as it may, parties did not provide submissions on this point, and for present purposes, I will not comment further save to say that the provisions are not identical and hence, any reliance on caselaw which interpreted Rule 10b-5(c) and/or s 102(b) of the SIA should be done with some caution and awareness of this distinction in wording between those provisions and s 201(b) of the SFA. This also meant that the Singapore case law dealing with the SFA – which emphasised the objectives of the SFA, and importantly the intended wide-ranging scope of s 201(b) of the SFA – should be more critical in construing how the second limb should be interpreted and applied (see [176(b)] below).

173    There were also other reasons why the interpretation and requirements set out in US authorities dealing with SEC Rule10b-5(c) have to be considered with circumspection, bearing in mind the objectives of our SFA and the difference in wording. I will deal with these issues in greater detail when I explore the US cases dealing with fraud at a later part of these GD.

(2)    Sub-component 2: “ as a fraud” in s 201(b)

174    As regards the word “fraud” referred to in s 201(b), this word is not defined in the SFA.

175    As such, both parties looked at legislative provisions and caselaw from Singapore and from other jurisdictions to argue the scope and meaning of fraud in s 201(b). I discuss the main points brought out by the parties below.

(A)   Scope of fraud in case law and legislation

(I)   SINGAPORE LAW

176    In the context of s 201(b), the Prosecution submitted that fraud should be construed broadly as s 201(b) is a catch-all provision. Specifically, in the context of Singapore law, the Prosecution highlighted the following:

(a)     “fraud” in s 201(b) cannot be synonymous with “deception” or “deceit”, given that s 201 lists “fraud” and “deception” disjunctively, and it is trite that Parliament shuns tautology and does not legislate in vain. Accordingly, “fraud” must have a distinct meaning from “deception. Further, contrary to the position put forward by the Defence, s 201(b) cannot be confined to deception, since such an interpretation would unduly restrict s 201(b) in a way where it fails to protect investors. Instead, s 201(b) must be broad enough so as to punish errant and harmful conduct effectively, particularly in the context of the securities industry where parties, such as fund managers, are entrusted with monies from investors. Such fund managers can intentionally enrich themselves at the expense of the investors when dealing with the latter’s monies, without actually practising deception on the investors.

(b)     The Prosecution put forward other reasons why “fraud” must be construed broadly in the context of s 201(b):

(i)       First, the SFA was drafted specifically to protect investors, and s 201 is a “catch-all” provision that covers all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA (see PP v Cheong Hock Lai and other appeals [2004] 3 SLR(R) 203 (“Cheong Hock Lai”)

(ii)       Section 201(b) is broadly worded and penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities - Ng Sae Kiat at [58]. Further, the SFA as a whole, is intended to punish and deter market misconduct: Cheong Hock Lai at [23].

(iii)       An offence under s 201(b) must also be necessarily amorphous so that it can fully protect investors by being “capable of incorporating a myriad of illegitimate trading practices” and “[covering] all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA”.[note: 176]

(iv)       To protect investors, the provision must be construed broadly enough to capture the breach of one’s duty, knowing that it would cause loss to investors or financial gain to oneself. This is particularly so when one considers that the enactment of the SFA as a whole was intended to: (a) protect investors; (b) protect public confidence in the market; and (c) ensure that the operation of the market is not distorted: Ng Sae Kiat at [58].

(c)     The Prosecution also argued that while fraud has not been defined in the SFA, reference to other legislation may be useful to consider the scope of how this word should be construed in the SFA.

(i)       First, s 25 of the Penal Code 1871 (“PC”), defines “fraudulently” as doing an act with intent to deceive another person and by means of such deception, that an advantage should accrue, or a detriment shall befall another, However, s 6A of the PC expressly excludes this definition from applying to any other written law beyond the PC. Section 6A reads:

6A. Every definition of a word or expression which is explained in sections 22A to 26H (except the definitions of “dishonestly” and “fraudulently” in sections 24 and 25, respectively) applies to any offence in this Code or in any other written law unless that written law expressly provides for a definition or explanation of that same word or expression.

[emphasis added]

(ii)       The Prosecution also emphasised that the context of “fraudulently”/fraud used in the PC is also different, given that the SFA is aimed at protecting investors in the securities market.

177    In addition, the Prosecution referred to a local case under s 201(b) of the SFA, PP v Loo Kiah Heng & another [2010] SGDC 434 (“Loo Kiah Heng”).

178    In this case, the offenders (“Soh” and “Loo”) pleaded guilty to four proceeded charges under s 201(b). Soh was a fund manager who had conspired with Loo to operate a fraud on Soh’s investment firm. This conspiracy involved Soh buying securities from Loo at a price above that in the prevailing market and selling securities to Loo at a price below that in the prevailing market. This arrangement allowed Loo to profit from the difference between the price at which Soh sold the securities to him and the prevailing market price. As it was a “Plead Guilty” case, the Court there did not go into depth as to the meaning of fraud within s 201(b). Nevertheless, the Court accepted that on these facts, the offenders’ acts operated as fraud on Soh’s investment firm.

179    The Prosecution argued that the facts of Loo Kiah Heng are analogous to the present case, where the accused had sold the MIE bonds at lower prices from SP1 to SP5, knowing that it would thereby cause loss to SP1 investors and benefit himself (as the clear and overwhelming majority shareholder of SP5).

180    On its end, the Defence argued that:

(a)     Fraud requires not just an intent to deceive, but also proof that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception, and that “fraud” requires an element of dishonesty, moral blame, culpability or lack of probity.[note: 177]

(b)     While the term “fraud” is not defined in the SFA, the legislation and the case law demonstrate that there must be shown some illegitimate or deceptive conduct and that a mere breach of fiduciary duty (even if proven), cannot and does not automatically lead to a finding of fraudulent behaviour.

(c)     Referring specifically to section 25 of the PC, which defines the term “fraudulently”[note: 178], the Defence submitted that a “fraud” within the meaning of the PC requires not just an intent to deceive another, but also that such deception would result in an advantage accruing to the accused, or a disadvantage accruing on someone else, by such means of deception. The Defence further argued that contrary to the position taken by the Prosecution, s 6A of the PC does not preclude reference to s 25 as it is a permissive provision. Instead, it may be presumed that Parliament intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection (citing Alrich Development Pte Ltd v Rafiq Jumabhoy [1995] 2 SLR(R) 340 (“Alrich Development”), and submitted that fraud under the SFA requires not just an intent to deceive, but also that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception.

181    The Defence also responded to an example cited by the Prosecution.

(a)     The Prosecution had stated[note: 179]

To illustrate with a simple example, if an investor entrusted $100,000 to a fund manager and the fund manager intentionally purchased a security at ten times above market price (for the purposes of this example, assume the market price is $10,000) from himself, no deception would be involved. However, the conduct of the fund manager is evidently an abuse of his position, to harm the investor and at the same time, benefit himself. In effect, the fund manager would have conferred $90,000 in profit to himself, at the direct expense of his investor. As an example, this must be conduct that s 201(b) SFA is capable of prohibiting, in order to protect investors. Given the nature and practice of certain sectors of the securities industry (where parties are entrusted with monies from investors), it is critical that s 201(b) SFA not be confined merely to deception, and instead be broad enough to punish errant and harmful conduct effectively.

(b)     In the view of the Defence, deceit is inbuilt in the example cited by the Prosecution[note: 180]. I reproduce the Defence’s argument below:

[39]   According to the Prosecution, fraud cannot require an element of deception, because s 201(b) would apparently otherwise be rendered “toothless”. The Prosecution gives the following fallacious example in support of its submission:

“…if an investor entrusted $100,000 to a fund manager and the fund manager intentionally purchased a security at ten times above market price (for the purposes of this example, assume the market price is $10,000) from himself, no deception would be involved.

However, the conduct of the fund manager is evidently an abuse of his position, to harm the investor and at the same time, benefit himself. In effect, the fund manager would have conferred $90,000 in profit to himself, at the direct expense of his investor.”

[40]   The Prosecution’s example above is wholly misconceived, as deceit is inbuilt into that scenario. A fund manager who intentionally purchases a security at above market price clearly deceives the investor, because the investor in this situation would not know that the security has been purchased at above market value. It is also inherent in the example above that the fund manager acted dishonestly and intended to cause loss or confer a benefit on himself. Hence, the elements of deceit and/or dishonesty are established in the Prosecution’s example.

(c)     The Defence also cited the Magistrate’s Court’s decision in Ong First Pte Ltd v Yap Poon Kwang [2005] SGMC 31 (“Ong First”) which considered the predecessor provision of s 201(b) of the SFA, i.e. s 210(b) of the Securities and Futures Act (2002 Rev Ed) (“2002 SFA”). In Ong First, the Court held at [28] that s 210 of the 2002 SFA was “couched in a language which is premised on a fraudulent act or omission. There must be deception, deceit or dishonesty involved” [emphasis added].

182    Further, while the Defence agreed with the Prosecution that “fraud” must have a distinct meaning from “deception”, the Defence argued that “fraud” must mean something more than what “deception” entails. Drawing on the definition of “fraudulently” in s 25 of the PC, the Defence argued that fraud requires not just an intent to deceive, but also that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception,

183    The Defence additionally submitted that for an offence to be proven under the second limb of s 201(b), deception, deceit or dishonesty must be involved, citing amongst other things, US cases dealing with Rule 10b-5(c). I will deal with the US cases in a later part of my GD.

184    At this stage, having considered the parties’ submissions on Singapore law, I make several observations about the meaning of “fraud” in the SFA.

185     First, in the context of s 201(b), there is an obvious distinction between “fraud” and “deception” as can be seen from the wording of section 201(b) which makes clear that these concepts are different and mutually exclusive:

201 - No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)    engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

186    Thus, I agreed with the Prosecution “fraud” cannot be synonymous with “deception” (or the similar noun “deceit”), given that s 201 lists “fraud” and “deception” disjunctively, as Parliament shuns tautology and does not legislate in vain (citing Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [38]). Accordingly, “fraud” must have a distinct meaning from “deception” (and “deceit”). Thus, requiring additional proof of deception or deceit – in the context of a charge framed under either of the “fraud” limbs (rather than a charge framed under either of the “deception” limbs of s 201(b)) would run counter to the plain wording of the SFA.

187    As for the Defence’s suggestion that for an offence to be proven under either of the “fraud” limbs of s 201(b), there must be deception, deceit or dishonesty involved, with respect, I do not agree with the Defence.

(a)     For one, it makes no sense for a charge under either of the fraud limbs in section 201(b) to require additional proof of deception/deceit, as there are already two separate limbs in s 201(b) specifying the requirement for deception. If deception/deceit is already a requirement to be proven when the charge is drafted under either of the deception limbs, rather than under either of the fraud limbs, a charge drafted under either of the fraud limbs should not require deception to be proven, since conceivably all charges would otherwise simply be drafted under either of the “deception limbs” instead of under the “fraud limbs”, as the former would presumably require fewer elements to be proven.

(b)     As for the Defence’s suggestion that there was an alternative requirement for proof of dishonesty as a component of fraud under s 201(b) of the SFA, such a “requirement” was not set out in any of the cases cited by the Defence, with the possible exception of Ong First. In this regard, it a more careful perusal of Ong First was necessary to better understand the reasoning applied in that case, and to determine if it was of relevance to our present case.

188    It would be recalled in Ong First, the Magistrate’s Court had considered the predecessor provision of s 201(b) of the SFA, i.e. s 210(b) of the 2002 SFA and held at [28] that for an offence under that provision to be made out, “there must be deception, deceit or dishonesty involved”.

(a)     However, it should be noted that being a Magistrate’s Court’s decision, and one involving a civil matter (MC Suit 1507/2003) at that, Ong First was not binding on a District Court exercising original criminal jurisdiction, in determining the meaning of fraud within s 201 of the SFA.

(b)     Further, as noted at [28] of that case, the defendant in Ong First alleged a breach of s 210 of the 2002 SFA based on the Plaintiff’s concealment of material facts so as to induce the Defendant to trade and continue trading excessively. While the fact scenario presented in Ong First could arguably reflect deception, deceit or dishonesty on the facts, whether this definitively means that any of these concepts are essential requirements of a of s 210 offence was not established. In other words, while there may have been actual deception, deceit or dishonesty on the facts of a case involving a s 201(b) offence, whether any of these constitute essential elements of the offence is a different thing altogether.

(c)     In addition, the brief pronouncement by the Magistrate’s Court in Ong First at [28] was not explained nor elaborated on in the actual judgment. Neither was it backed by any interpretation, reasoning, or precedent. In addition, it was not shown that this one-line pronouncement in this 2005 decision has since been followed or adopted in any subsequent case dealing with s 210 of the 2002 SFA, let alone any case dealing with the present s 201(b) of the SFA, which is the provision that we are concerned with.

(d)     In short, I did not find the pronouncement in Ong First to be particularly helpful, let alone binding, on this Court.

189    Further, as pointed out by the Prosecution, the current SFA makes a distinction between dishonesty and fraud, as these concepts are referred to disjunctively in numerous sections.[note: 181] In addition, I note that s 201 is intended to be a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]) Thus, clearly s 201 should not subsume offences that are already dealt with under “dishonesty” provisions in the SFA, nor should “fraud” and “dishonesty” in s 201 overlap.

190    Finally, to round off this point, in so far as the Defence urged me to rely on principles set out in US cases, especially the requirement of “scienter” (i.e. a mental state embracing intent to deceive, manipulate or defraud)[note: 182], for reasons that I will expand on later when I consider US cases commenting on Rule 10b-5, I did not agree with the Defence’s approach.

191     Second, I accepted that the word “fraud” must be given an expansive meaning in the context of s 201(b).

(a)     In this regard, I note that both parties accepted that the SFA was drafted specifically to protect investors, and s 201 is a “catch-all” provision that covers all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA. As noted in Ng Sae Kiat at [58], s 201(b) “…is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities”

(b)     I thus accepted the proposition put forward by the Prosecution that in the context of the securities industry, the “likely to operate as a fraud” limb of s 201(b) should be construed broadly enough to capture a situation involving a breach of one’s duty with the knowledge that this would cause loss to investors or financial gain to oneself. Given the nature and practice of the securities industry, where parties such as portfolio managers are entrusted with monies from investors, s 201(b) should not be solely confined to acts of deception directly practised by portfolio managers (which could already amount to cheating under the Penal Code). Instead, this limb should be broad enough to punish conduct involving a breach of duty intentionally carried out with the knowledge that it would cause loss to investors or financial gain to oneself.

192    As for the Defence’s suggestion (see [180(c)] above) of adopting the definition of “fraudulently” in s 25 of the PC, as requiring proof of intent to deceive, and proof that such deception would result in an advantage accruing to the accused, or a disadvantage accruing on someone else by such means of deception, when interpreting the meaning of “fraud” in s 201(b) of the SFA, I respectfully disagree that this is the correct approach.

(a)      First, quite aside from the fact that s 201(b) makes clear the distinction between the concepts of “fraud” and “deception” as discussed above, I note that the PC itself, in the form of s 6A, specifically makes clear that the definition of “fraudulently” in the PC does not apply to other written laws.

(b)     In this regard, I agreed with the Prosecution that the case of Alrich Development, cited by the Defence to support its argument that in the absence of any context indicating a contrary intention it may be presumed that Parliament intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection, was ultimately an unhelpful case. Instead, section 6A of the PC evidences a contrary intention for the PC Code definition of “fraudulently” to be applied to laws other than the PC (see [176(c)] above).

(c)     Further, it should also be noted that in Alrich Development at [54], the Court had stated “Whether it is permissible in the interpretation of the RPA to refer to the Companies Act for the purpose of ascertaining the meaning of the word “director” depends on whether the word “director” is used in the same sense in the two statutes.” (emphasis added). In the present case, there was nothing to suggest any intention for the meaning of “fraudulently” in the PC to be “used in the same sense” as “fraud” in s 201(b) of the SFA. This was especially so given that the latter is a catch-all provision, and fraud should conceivably be given a more expansive interpretation than “fraudulently” has been given in the PC.

193    That said, while the PC definition of “fraudulently” should not limit the meaning of “fraud” in the SFA due to the operation of s 6A of the PC, I was of the view that how “fraud” is construed in the Companies Act 1967, which was a statute which does not contain a similar “limiting provision” as s 6A of the PC, that may be more useful to interpret the meaning of “fraud” in s 201(b), in line with the scope of the SFA.

(a)     In this regard, the Prosecution pointed out[note: 183] that in interpreting s 340 of the Companies Act, a provision which deals with fraudulent trading, the High Court in Phang Wah and others v Public Prosecutor [2012] 1 SLR 646 (“Phang Wah”) had construed the words “fraudulent purpose” in the Companies Act broadly to connote an intention to go “beyond the bounds of what ordinary decent people engaged in business would regard as honest”, or involving “according to the current notions of fair trading among commercial men, real moral blame”. This approach was endorsed by Vincent Hoong J in How Soo Feng v PP Prosecutor and another appeal [2023] SGHC 252 (“How Soo Feng”).

(b)     While the above cases in (a) dealt with the Companies Act, I agreed with the Prosecution that they also illustrate the general approach taken towards the concept of fraud (and its variants such as “fraudulent purpose”) and show that Courts are prepared to ascribe a wide meaning to such concepts.

(c)     I further agreed that this same approach adopted to the interpretation of “fraudulent purpose” in the Companies should similarly apply to the interpretation of “fraud” in s 201(b) bearing in mind again that 201(b) of the SFA “…is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities” (Ng Sae Kiat at [58]).

194    All in all, I was of the view that based on the Singapore authorities discussed above, for a charge that is framed under the “…likely to operate as a fraud” limb of s 201(b), it was not a requirement that there needs to be proof of deceitful, deceptive or dishonest conduct on the accused’s part as suggested by the Defence. Instead, fraud must necessarily be construed more broadly, in line with the objective of s 201(b).

195    That said, where elements of deceitful, deceptive or dishonest conduct on the part of the accused are present, it can be more readily construed that the acts are “likely to operate as a fraud”. This is consistent with the decision cited by the Prosecution of Loo Kiah Heng (see [177] above]. Even though that was a Plead Guilty case, which did not explicitly consider this issue, I accepted that the facts of the case were sufficiently analogous to those in the present case.

(a)     It would be recalled that in Loo Kiah Heng, Soh, the fund manager who conspired with Loo, had operated a fraud on Soh’s investment firm by buying securities from Loo at a price above that in the prevailing market and selling securities to Loo at a price below that in the prevailing market. The trades were thus to the disadvantage of Soh’s investment firm, and correspondingly were to Loo’s advantage and allowed the latter to make “contra” profits.

(b)     The Defence argued that the facts of Loo Kiah Heng were different from that of the present case[note: 184], highlighting that (a) the conduct of the offenders took place over a period of 20 months, whereas the present case concerns a one-off instance of a sale of bonds; (b) Loo was the counterparty to the married trade who benefited through actual, tangible, intra-day contra profits from the difference between the married trade price and the market price, while in this case, SP5 only fortuitously benefitted some months later; (c) the profits were earned by Loo personally and Loo alone, while in the accused’s case, any profits at the end of the day were earnt by SP5, which had other investors apart from the accused; (d) there was no indication in Loo Kiah Heng that the price of the married trade was determined with regard to any points of reference, e.g., actual firm, valid and executable bids received; (e) the decision to conduct a passthrough was not one taken by the accused alone, and various other key persons were involved but had not flagged any issues or concerns; and (f) there was no evidence of any deliberate and covert attempt to coverup or to otherwise conceal the passthrough from other parties, unlike in Loo Kiah Heng, and the accused here did not act in a deceptive, deceitful, or dishonest manner.

196    While I will be elaborating on the accused’s behaviour at a later part of these GD when considering whether the offence under s 201(b) was made out under the “likely to operate as a fraud” limb, I would only say at this stage that I did not agree with the Defence that the facts of Loo Kiah Heng and that of the current case are materially different. In this regard, it was clear that:

(a)     Even a one-off sale of bonds, as occurred in the present case, if done in breach of s 201(b) would still constitute an offence;

(b)     If the accused had sold the MIE bonds via the passthrough trades to SP5 at a lower price than was made available to SP1 on 19 January 2016, the SP1 investors would have suffered a loss, and SP5 investors (in particular the accused who held overwhelming shares in SP5) would have made a gain;

(c)     The fact that other investors of SP5 also benefitted from the accused’s actions would not change the fact that the accused (as an investor owning, directly or indirectly, 99% of SP5 on 19 January 2016 (see [520] below) gained overwhelmingly from carrying out the passthrough transaction;

(d)     That while the accused may have used Haitong’s bid prices for the purposes of the passthrough trades, there were clearly higher prices available on the day when he could have sold the MIE bonds at, most notably, at the Morgan Stanley bid prices which he was clearly aware of. In any event, even at the time he finally carried out the sale of the MIE bonds from SP1 via the passthrough trade to Pareto, and then pass through these bonds to SP5, there were higher bids from BNP, and from SC Lowy (for the MIE19 bonds), and he could have sold the bonds to these counterparties, or used these bids to conduct the passthrough trades;

(e)     It was the accused’s decision, and his decision alone, to decide when to sell the MIE bonds, who to sell them to, and also the price that they were to be sold. It was also his decision alone to buy the same bonds for SP5 at the time and prices that he bought them. The accused carried out these decisions in his capacity as a portfolio manager of SP1 (and SP5) knowing that they were to the detriment of the SP1 investors, and to the benefit of himself; and

(f)     There was also evidence suggestive of active concealment of the actions of the accused on 19 January 2016. At the same time, there was no evidence of active and voluntary disclosure of the circumstances of the transactions to SP1 investors. In fact, even if the accused had agreed to voluntarily disclose trade logs to the SP1 investors about the sale of the MIE bonds, these logs would not have included (1) information on the significantly higher competing bids that were made available to him that morning for the MIE bonds; (2) the fact that it was SP5 that bought the bonds (through the passthrough trades), or (3) that the accused himself was the overwhelming majority shareholder of SP5 at the material time of the passthrough trades.

197    I will elaborate on the matters in [196] in greater detail at a later part of my GD. Suffice it to say, contrary to the claims of the Defence, the facts of the present case bore many similarities with the facts in Loo Kiah Heng. I should also add that the limb that was proceeded with in Loo Kiah Heng was the “operate as fraud limb”, as opposed to the “likely to operate as a fraud limb”. The requirements to prove an offence under the latter limb are clearly less stringent than those to prove an offence under the former limb, for the reasons already discussed.

198    Separately, both parties also considered that reference should be made to US provisions that were analogous to section 201(b) of the SFA, although the parties differed as to which provisions I should look at, and the significance, and application of the US cases that interpreted those provisions. I shall deal with these issues in the next part of my GD.

(II)   US LAW AND LIMITATIONS ON APPLICATION TO S 201(B)

199    Both parties made extensive reference to Rule 10b-5(c), although not for the same purpose. Rule 10b-5 as a whole reads:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or for the mails or of any facility of any national securities exchange…

(a)    To employ any device, scheme, or artifice to defraud,

(b)    To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c)     To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

[emphasis added]

200    As stated earlier, Rule 10-5(c) bears similarity with our s 201(b). One of the major issues that parties disagreed with was whether this meant that the requirement of “scienter” in US securities law similarly applies to an offence under s 201(b).[note: 185]

Scienter is not a requirement for s 201(b) of our SFA

201    The Defence argued that US authorities dealing with Rule 10b-5(c) and more importantly, those dealing with section 10b of the US SEA, have indicated that the word “manipulative”, which appears in s 10b of the SEA but not in Rule 10b-5, “connotes intentional or wilful conduct designed to deceive or defraud investors…” (citing the US Supreme Court decision of Ernst & Ernst & Hochfelder 425 U.S. 185 (1976) (“Hochfelder”) at [199]). The Court there added at [202] that “(t)there is no indication, however, that s 10(b) of the SEA was intended to proscribe conduct not involving scienter.”

202    The Defence stated [note: 186] that as regards the requirement of scienter, the US Supreme Court in Aaron v SEC 446 U.S. 680 (1980) (“Aaron”) had concluded at 694 that “scienter is a necessary element of a violation of s 10(b) and Rule 10b-5” primarily on the basis that:

(a)     The language of s 10(b) of SEA – particularly the terms “manipulative”, “device”, “contrivance” – clearly refers to “knowing or intentional misconduct” (at 694); and

(b)     The legislative history of s 10(b) of the SEA contained no indication that the provision was intended to proscribe conduct not involving scienter (at 690).

203    In essence, the position of the Defence was that “the rationales that the US courts have put forward, even acknowledging the differences in language should, in our submission, lead to a conclusion by this Court that Section 201 of the SFA does require the kind of dishonest, morally blameworthy state of mind in order to prove fraud.”[note: 187]

204    However, having carefully considered and compared US legislation to our own SFA, and also having considered how the US authorities have interpreted the requirement of scienter in the context of US law, I disagree with the Defence that scienter is a requirement that has to be proven for an offence under the second limb of s 201(b) to be made out. Instead, I agreed with the Prosecution that there was no scienter requirement to limit the scope of s 201(b). I elaborate below.

A)    The scope of the US Rule 10b-5 is determined and constrained by the US SEA, and no such constrain applies to s 201(b) of our SFA

205    I will first deal with the fact that the statutory context of the US Rule 10b-5 differs from that of our s 201(b). In this regard, as noted in various US authorities, Rule 10b-5 was enacted under s 10b of the SEA, which is its parent provision. S 10b of the SEA reads:

It shall be unlawful for any person, directly or indirectly, …. To use or employ, in connection with the purchase or sale of any … security … any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

[emphasis added]

206    In line with the Prosecution’s submissions,[note: 188] the US Courts in Aaron, Tagliaferri, and other US cases, have made it clear that the mental state required for an offence to be made out under Rule 10b-5, is based on (and limited by), the context and language of s 10(b) SEA.

207    In Aaron, the US Supreme Court at pp. 6 and 8 specifically noted that s 10(b) of the SEA (which is the parent provision of Rule 10-5) was enacted to capture “knowing or intentional misconduct” for two reasons.

(a)     First, s 10(b) SEA uses the words “manipulative”, “device” and “contrivance” which indicate that the acts must have been done knowingly or intentionally.

(b)     Second, the legislative history of s 10(b) SEA makes it clear that Congress did not intend to punish merely negligent conduct, because whenever Congress intended that, it would expressly subject such actions to significant procedural restraints that were absent in s 10(b) SEA.

208    The Court went on to state that as Rule 10b-5 was enacted under s 10(b) SEA, Rule 10b-5 was “limited by the ambit of its statutory authority” and accordingly required the same scienter requirement. The Prosecution thus submitted that clearly, this interpretation of s 10(b) of the SEA directly informed the US Courts’ view on the scope of Rule 10b-5.[note: 189]

209    Similarly in Santa Fe Industries, Inc. v Green 430 U.S. 462 (1977) (“Santa Fe”), at p 1300, the US Supreme Court, citing Ernst & Ernst stated that

…the language of the statute must control the interpretation of the Rule: “Rule 10b-5 was adopted pursuant to authority granted the [Securities and Exchange] Commission under § 10(b). The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is “the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.”… [The scope of the Rule] cannot exceed the power granted the Commission by Congress under § 10(b).”

[emphasis added]

210    However, as the Prosecution rightly pointed out, there is no equivalent of section 10(b) of the US SEA in our SFA. This renders Aaron and other US cases - which had set out the scienter requirement - of limited utility given that the main basis for the Court’s position on scienter as a requirement for Rule 10b-5 was due to s 10(b) of the SEA, which the US Courts has made explicitly clear controls the interpretation of Rule 10b-5. Thus, as there is no provision equivalent to s 10(b) SEA in our SFA, our s 201(b) should not be similarly limited by the language or requirements of s 10(b) SEA.

211    Separately, the Prosecution also pointed[note: 190] out that the US Supreme Court had in O’Hagan made clear at pp 665 and 666 that the scienter requirement (that Rule 10b-5 be “wilfully” violated, and the offender has to have knowledge of the Rule which he breached) was rooted in the punishment provision, s 32(a) of the US SEA. This provision reads:

Any person who wilfully violates any provision of this title (other than section 30A), or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this title, or any person who wilfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this title or any rule or regulation thereunder or undertaking contained in a registration statement as provided in subsection (d) of section 15 of this title, or by any self-regulatory organization in connection with an application for membership or participation therein or to become associated with a member thereof, which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both, except that when such person is a person other than a natural person, a fine not exceeding $25,000,000 may be imposed; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.”

[emphasis added]

212    However, again the US law on this issue is at variance with Singapore law since s 32(a) of the US SEA differs from our s 204(1) of the SFA, the latter being the offence creating and punishment provision for s 201(b). Specifically, unlike the US provision, our s 204(1) SFA does not require the contravention to be done “wilfully”. Section 204(1) reads:

Any person who contravenes any of the provisions of this Division shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 7 years or to both.”

[emphasis added]

213    Thus, in short, since our SFA is not constrained in the same manner as the US SEA, the scienter requirement that the US courts have insisted in the application of Rule 10b-5 cannot simply be imported into s 201(b).

214    I agreed with the Prosecution’s submissions. In so far as the US courts have insisted on the scienter requirement in the context of Rule 10-5b, this was clearly a consequence of US provisions in the SEA. Since these provisions, essentially s 10(b) of the SEA, and s 32(a) of the SEA, have no equivalent in Singapore law, we should not blindly import the requirement of proof of scienter when determining whether an offence under s 201(b) is made out.

B)    Interpretation of S 17(a) of the US Securities Act supports the position that no scienter requirement applies to s 201(b)

215    Further, the Prosecution pointed out that at pp 696 and 697 of Aaron, the US Supreme Court had discussed s 17(a) of the US Securities Act of 1933 (“US SA”), and argued that the Court’s comments on this provision are useful and relevant, as s 17(a)(3) of the US SA has similarities with s 201(b) of our SFA. This provision relates to “Fraudulent Interstate Transactions”, and it reads:

It shall be unlawful for any person in the offer or sale of any securities … by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly –

(1)    to employ any device, scheme, or artifice to defraud, or

(2)    to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstance under which they were made, not misleading; or

(3)     to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.

[emphasis added]

216    At pages 695 to 697 of Aaron, the Court added:

[2C]  The language of § 17(a) strongly suggests that Congress contemplated a scienter requirement under §17(a)(1), but not under §17(a)(2) or §17(a)(3). The language of §17(a)(1) … plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term “defraud” is ambiguous, given its varied meanings at law and in equity, the terms “device”, “scheme”, and “artifice” all connote knowing or intentional practices ... Indeed, the term “device”, which also appears in §10(b) [of the SEA] embraces a scienter requirement.

…

[4C] Finally, the language of § 17(a)(3), under which it is unlawful for any person “to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit” … quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206(2) of the Investment Advisers Act of 1940 a meaning that does not require a “showing [of] deliberate dishonesty as a condition precedent to protecting investors”.

It is our view, in sum, that the language of § 17(a) requires scienter under §17(a)(1), but not under §17(a)(2) or §17(a)(3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17(a), the language of the section is simply not amenable to such an interpretation… Indeed, since Congress drafted § 17(a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what is so plainly seems to say.

[emphasis added]

217    The Prosecution argued that while the US Rule 10b-5 was circumscribed by section 10(b) of the US SEA, the same was not the case for 17(a)(3) of the US SA. Nor should our own s 201(b) be circumstanced. Instead, the comments of the Court in Aaron on s 17(a)(3) US SA, would apply to our s 201(b), and make clear that based on the plain wording of these provisions, there is no need to show deliberate dishonesty before they apply to protect investors.

218    I agreed with the arguments put forward by the Prosecution. In short, quite aside from the fact that our s 201(b) was not constrained by wording contained in s 10(b) of the US SEA, the analysis of the Court in Aaron, regarding s 17(a)(3) US SA serves further to reinforce the position that we should not impose a scienter requirement into s 201(b) when there was clearly no legislative basis, or legislative history showing Parliament’s intent to do so.

C)    Title of s 201(b) of the SFA does not limit the language of the provision

219    While the Defence also pointed out that s 201(b) comes under the title “[e]mployment of manipulative and deceptive devices” in the SFA, apparently suggesting that these words would import the requirements set out in the s 10(b) of the US SEA into our s 201(b), with respect, the title of s 201(b) alone cannot, without more, govern the scope and interpretation of this provision.

220    In this regard, I make reference to the local High Court case of Soil Investigation Pte Ltd v PP [2018] SGHC 91 (“Soil Investigation”), where the Court was called upon to interpret s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed), a provision which had hitherto not been dealt with since its introduction. The Appellant there had made a similar argument that the title of the provision should guide its interpretation. In rejecting this proposition, Aedit Abdullah J at [39], referred to his earlier decision in Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd [2016] 5 SLR 226, where he had stated at [18] that the title, header or marginal note to a section was not determinative of its contents as it is intended only to summarise the contents of sections for ease of reference and was not always precise or exhaustive. In Soil Investigation itself, Abdullah J added at [40]:

In the present case, I find that the title of the section does not limit the actual statutory language used in the section. It is rather only a broad summary of the contents of the section. In particular, the title of s 56A does not necessitate that s 56A be read as extending liability for offences committed by agents or employees only. One must look beyond the title and consider the wording of the section itself.

[emphasis added]

221    In the same vein, the title of the section under which s 201(b) of the SFA falls, cannot operate to limit how s 201(b) should be interpreted, especially when this provision (with four separate limbs) clearly was intended to cover a wide scope. Instead, as made clear by Aedit Abdullah J in Soil Investigation, it was the “wording of the section” itself, rather than the title, that needed to be considered. The wording of the “likely to operate” limb of s 201(b) clearly does not set out any scienter requirement.

222    In summary, in light of the fact that:

(a)     There is no equivalent to section 10(b) of the US SEA in our SFA, which would guide or impose limitations on how we interpret s 201(b) of our SFA;

(b)     The difference in the wording of the punishment provisions in the US SEA and our SFA (i.e. s32(a) of the SEA vs s 204(1) of our SFA);

(c)     The comments of the US Supreme Court in Aaron on the lack of a scienter requirement in s 17(a)(3) of the US Securities Act of 1933 which is similarly worded to Rule 10b-5(b), and which may guide us in our interpretation of s 201(b) of the SFA;

(d)     The fact that language of s 201(b) itself does not set out any scienter requirement; and

(e)     Finally, noting that s 201 is in the nature of a “catch-all” provision, and is intended to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities;

I am of the view that there was simply no basis to impose a scienter requirement in the “likely to operate as a fraud limb”. Neither, a literal nor a purposive interpretation of s 201(b) supports such a requirement.

223    While I have held that the scienter requirement that applies to US legislation does not apply to our own s 201(b), this does not mean that the US cases dealing with Rule 10b-5(b) are of no relevance at all. Instead, the fact that US courts have tendered to interpret fraud widely under US securities law was particularly instructive. I will deal with this in greater detail in the next section of these Grounds.

Broad scope of fraud under US securities law

224    While it is clear that the US Courts have not laid down a precise definition for fraud, I accepted the Prosecution’s argument that various US authorities show that fraud is construed broadly in US securities law. The following cases illustrate this point:

(a)     In the US Supreme Court decision of O’Hagan, which was cited by the Prosecution,[note: 191] the offender, a partner in a law firm, was charged and prosecuted, inter alia, with violating Rule 10b-5. The Supreme Court there explained that misappropriation of confidential information specifically, and disloyalty to the principal generally, could amount to deceptive and fraudulent conduct.[note: 192] The Court explained that Rule 10b-5 was breached in such a case because:

… A fiduciary who “[pretends] loyalty to the principal while secretly converting the principal’s information for personal gain”, “dupes” or defrauds the principal.

[emphasis added]

Thus, it could be seen that the Supreme Court there did not confine the scope of Rule 10b-5 to insider trading but instead recognised that the scope of the rule was wide enough to include cases where a fiduciary intentionally breaches his duties for personal gain.

(b)     Next, in US Supreme Court decision of Santa Fe, the Court stated that Rule 10b-5 must be flexible and broad, to “prohibit the full range of ingenious devices that might be used to manipulate securities prices”[note: 193]. Further, while the Court there acknowledged that “fraud” under Rule 10b-5 did not bring within its ambit “all breaches of fiduciary duty in connection with a securities transaction”,[note: 194] I agreed with the Prosecution that the decision of the Court shows that a breach of fiduciary duty can and does fall within the ambit of fraud under Rule 10b-5.

(c)     Other US authorities have similarly recognised that securities fraud can take many forms and it is accordingly critical that the prohibition on fraud remains flexible and broad, so as to encompass and prevent a wide range of conduct. The following cases are illustrative:

(i)       In Lorenzo v SEC 139 S.Ct. 1094 (“Lorenzo”), it was stated that the Rules 10b-5(a)-(c) “[capture] a wide range of conduct”[note: 195];

(ii)       In A.T. Brod Co v Perlow 375 F.2d 393, 397 (2d Cir. 1967), it was stated that “Rule 10b-5…was designed to protect both investors and “the public interest”[note: 196], and that it was designed to prohibit all fraudulent schemes in connection with the purchase or sale of securities, including “novel or atypical transactions”[note: 197] (see also James v Gerber Products (“James v Gerber Products”) 483 F.2d 944 (6th Cir. 1973) at [4])

225    On its end, the Defence cited the US Supreme Court decision of Schreiber v Burlington Northern, Inc. 472 U.S. 1 (1985) (“Schreiber”) to argue that instances of corporate mismanagement, where the essence of the complaint was that shareholders were treated unfairly by a fiduciary, would not fall within the scope of s 10(b) of the US SEA. However, I agreed with the Prosecution[note: 198] that Schreiber was distinguishable as the Court there was asked to interpret 14(e) of the SEA, a provision that is different from Rule 10b-5. Further, while the Court in Schreiber did also consider the scope and interpretation of the word “manipulative” in the context of s 10(b) of the SEA, as stated earlier, s 10(b) of the SEA is not a provision found in our SFA, and hence the comments of the Court in Schreiber were not directly relevant to our present case. In any event, on the facts of that case, the claim for fraud was not sufficiently supported.

226    Thus, in summary, I agreed with the Prosecution that the US courts have ascribed a broad meaning to fraud within the context of Rule 10b-5, and have found that fraud had been committed when:[note: 199]

(i)     A trustee promoted the interests of any other (including himself) over that of the beneficiary (James v Gerber Products);

(ii)     Executors intentionally sold stock at an undervalue, causing loss (Heyman v Heyman (“Heyman”) 356 F. Supp. 958 (S.D.N.Y. 1973); and

(iii)     There was a breach of the duty of best execution for personal financial gain (Francis x Fleming v. Charles Schwab “Francis x Fleming”) (2017) 878 F.3rd 1146)

227    In short, I agreed with the Prosecution that in line with the common thread running through the US cases that conduct involving a breach of a duty owed to investors, with the intention or knowledge that this would result in loss to investors, or to financial gain to oneself, could also be regarded a fraudulent within the context of our s 201(b). This, as the Prosecution rightly argued, would be the correct approach to adopt as such conduct harms investors who have entrusted monies to another to invest and manage.

(III)   CANADIAN CASES ALSO REVEAL A BROAD UNDERSTANDING OF FRAUD

228    To strengthen its argument that a broad understanding of fraud should be adopted when considering s 201(b), the Prosecution also referred to Canadian authorities because Singapore cases and US cases have not explained precisely what fraud means in the context of their respective securities laws.

229    The Prosecution argued that even though the relevant Canadian provision was not worded in the same way as our s 201(b), a reference to Canadian law would nonetheless be useful, since key elements are similar, for example, the requirements that one “engage in any act” and “perpetrates a fraud on any person” in Canadian law, have equivalents in s 201(b).

230    In this regard,

(a)     The Canadian Securities Act R.S.O 1990 (“the Securities Act”) specifically contains the following provision:

126.1 (1) A person or company shall not, directly or indirectly, engage or participate in any act, practice or course of conduct relating to securities, derivatives or the underlying interest of a derivative that the person or company knows or reasonably ought to know, (a) results in or contributes to a misleading appearance of trading activity in, or an artificial price for, a security, derivative or underlying interest of a derivative; or (b) perpetrates a fraud on any person or company.

[emphasis added]

(b)     For purposes of comparison, our s 201(b) has similar requirements and reads as follows:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

231    As regards Canadian authorities, the Prosecution highlighted the following:

(a)     The Ontario Securities Commission ("the Commission”) decision In the Matter of Bradon Technologies Ltd., Joseph Compta, Ensign Corporate Communication Inc. and Timothy German 2015 ONSEC 26 (“Bradon”) which held that securities fraud encompasses acts that are distinct from deceit or falsehood.

(b)     The Supreme Court of Canada decision in R. v Theroux, [1993] 2 S.C.R.5 (“Theroux”) where it was held that “fraudulent means” in the Canadian fraud offence provision is to be determined objectively by reference to what a reasonable person would consider to be a dishonest act. In Théroux, Justice McLachlin (as she then was) summarised the elements of fraud at [27] as follows:

… the actus reus of the offence of fraud will be established by proof of:

1.    the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and

2.    deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

Correspondingly, the mens rea of fraud is established by proof of:

1.    subjective knowledge of the prohibited act; and

2.    subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).

232    The Prosecution argued that Canadian cases have given a broad meaning to fraud which does not confine fraud to deceit or falsehood. This supported its argument that fraud should be understood broadly, to encompass the breach of one’s duties, with the intention or knowledge that it would cause loss to investors or financial gain to oneself. In addition, the Prosecution highlighted several Canadian cases which have applied a broad interpretation of fraud:

(a)     The case of Wong (Re) 2016 LNBCSC 155 (“Wong (Re)”), which demonstrated that fraud is construed broadly under Canadian law and is established when one acts with the intention or knowledge that it would cause loss to investors or gain to another.

(b)     The case of Sino-Forest Corporation (Re), 2017 ONSEC 27 (“Sino-Forest”) (affirmed by the Ontario Superior Court of Justice on appeal in Hung v. Ontario (Securities Commission), [2019] O.J. No. 2982)) which demonstrated that fraud was found when one intentionally puts investor interests at risk for personal gain.[note: 200]

233    The Prosecution thus summed up that the Canadian authorities have established that securities fraud had been found where an accused person:[note: 201]

(a)     Acts with the intention to cause loss to investors; or

(b)     Puts investor interests at risk to benefit himself.

234    In response, the Defence essentially argued against referring to Canadian jurisprudence as some of the cases cited were not determined by judiciary authorities but by regulatory authorities (such as the cases of Bradon and Wong (Re)), and/or were based on legislation that was not in pari materia with s 201(b) of the SFA. The Defence also argued that the facts of the cases cited were also distinguishable from the facts in the present case.

235    In so far as Canadian authorities commented on the meaning of fraud in the context of their securities laws, I make the following observations:

(a)     While it is clear that Canadian legislation is not identical to provisions in our SFA, they nonetheless deal with similar concepts and contain similar wording as highlighted above (see [229] and [230] above).

(b)     Further, as earlier noted, the concept of fraud in s 201(b) has not been decided by Singapore cases before, nor is there a definition of “fraud” provided in the SFA. In addition, as highlighted earlier and as accepted by both parties, our case authorities have made clear that s 201 is a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]), and is intended to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities. In fact, one of the main objectives of the SFA is to protect investors (Ng Sae Kiat at [58]). These objectives appear to be entirely consistent with s 126.1 of the Canadian Securities Act which seems to have a similar focus.

236    Thus, I did consider the guidance provided in the Canadian cases to be useful in understanding how “fraud” should be construed in the context of our s 201(b). Further, I accepted the proposition put forward by the Prosecution that securities fraud should be given a broad interpretation in a similar manner as what has been accepted in Canada.

(IV)   CONCLUSION ON THE INTERPRETATION OF FRAUD IN S 201(B)

237    To sum up, I agreed that consistent with Singapore, US and Canadian authorities, fraud should be given a broad meaning within the context of our securities laws. Specifically, in the context of the “fraud” limbs in s 201(b), fraud should not require proof of scienter or proof of deception, deceit or dishonesty. Further, I agreed with the Prosecution that based on the analysis of the cases, and the wide scope of s 201(b) fraud should be found where:

(a)     An offender who, in connection with the sale or purchase of securities breaches his duty (a concept we will discuss further in the next section of these GD); and

(b)     he does so knowing that this breach would cause loss to others or benefit himself.

238    The scope of fraud in s 201(b) would thus cover situations where an accused person, such as a portfolio manager, who is entrusted with and deals with securities of investors, and who voluntarily assumes this role, intentionally sells the securities in breach of his duty, knowing that by his act, he would thereby enrich himself or cause loss to the investors.

239    I will now examine whether the accused owes any duty to the SP1 investors in the context of s 201(b) and if so, what this duty entails.

(B)   Duty owed by the accused to sp1 investors

(I)   OUTLINE OF THE PARTIES’ ARGUMENTS

240    The Prosecution argued that the accused owed a duty to sell the MIE bonds at the highest possible prices and that this duty was owed to the investors. The Prosecution clarified that there does not mean that there was a requirement under s 201(b) to prove that the accused also owed a fiduciary duty to SP1 investors, even though the circumstances suggested that such a duty was actually owed by the accused in the present case.

241    The Prosecution instead argued that as a matter of logic and principle, it must be that the accused owed this duty to SP1 investors to sell the MIE bonds at the highest available prices in his capacity as a portfolio manager and that he had breached that duty in the present case. [note: 202]

242    I outline below the Prosecution’s arguments as to why the accused owed a duty to sell the MIE bonds at the highest available price, and why, in any case (even though it was not essential to establish the charges), the accused was in a position of a fiduciary vis-à-vis the SP1 investors.

243     First, the Prosecution cited the High Court case of Zhou Weidong v Liew Kai Lung and others [2017] SGHC 32 (“Zhou Weidong”) a case which established that fund managers owe fiduciary duties to investors.

(a)     In Zhou Weidong, the first defendant (Liew) had incorporated a company RCL (the second defendant) to spearhead its investments in China. The plaintiff (Zhou) maintained an investment portfolio in RCL, including four investments (“Four Investments”). Zhou subsequently claimed against Liew, for misrepresentation, breach of fiduciary duty, and constructive and resulting trusts pertaining to the Four Investments agreements that Zhou had entered with RCL.

(b)     Audrey Lim JC, who heard the case, made the following findings on the action for breach of fiduciary duty. Her Honour stated:

(i)       At [27] that “(e)ven if investment or fund managers do not fall within settled categories of fiduciaries, the circumstances of the case justify the imposition of such duties….”

(ii)       At [29], her Honour found that “Liew and RCL owed a duty to act in good faith for Zhou’s benefit, having voluntarily taken on the responsibility as Zhou’s fund manager handling Zhou’s investment moneys”. As they had not acted in Zhou’s best interest, they were thus in breach of their fiduciary duties (I will discuss this case further at [254] of my GD below).

244    Thus, in essence, the Singapore High Court in Zhou Weidong recognised that a fund manager owes a fiduciary duty to an investor when he voluntarily takes on the responsibility to handle the investor’s monies.

245    In the present case, the accused, was the portfolio manager of SP1.

(a)     In that capacity, he was entrusted with and had voluntarily taken on the management of the SP1 investors’ monies and the investment products in SP1. Further, as portfolio manager, he also handled the sale of the assets of SP1 including the sale of the MIE bonds.

(b)     On 19 January 2016, there was no dispute that the accused had full control and management of the assets in SP1. He was thus essentially in the same position as the fund manager in Zhou Weidong and owed fiduciary duties to the investors to act in good faith and for their benefit. Specifically, he had a duty to act to protect the interests of the investors, which in the context of selling the assets of the funds, meant that he had to sell them at the highest available prices in favour of his investors, and not to act against their interests or for his own benefit.

(c)     Specifically in the case of SP1, SCL was the majority investor of SP1 and the accused was the appointed portfolio manager assigned to manage the fund. Ms Lily Ng, who was SCL’s representative, had also testified that as an investor who has funded SP1, SCL expected the accused to sell the assets of SP1 at the highest possible price.[note: 203]

246     Second, the Prosecution argued that in any event, there was no need to prove that the accused had a fiduciary duty to make out a s 201(b) offence, as individuals in the accused’s position must, in any event, owe duties to those who entrust monies to them. The Prosecution made the following submissions.

(a)     Referencing the evidence of the expert witnesses, Ms Low and Mr Cheong, the Prosecution highlighted that both witnesses essentially testified that the accused owed a duty to ensure the accused obtained the best available prices for the sale of the MIE18 and MIE19 bonds. As regards the evidence of these experts, the Prosecution pointed out that:

(i)       Ms Low testified that she is an expert in fund management, and also has expertise in trading. As such, her evidence both as to fund management and trading was relevant to the issue of how the trades ought to have been carried out, particularly as OAIP has no trading desk, and the accused was wearing the hats of both a portfolio manager and a trader, Similarly, while Mr Cheong had given expert evidence on trading, he also has experience as a fund manager, and his experience on both aspects cannot be separated especially as the accused, as a portfolio manager, was also doing trading in wearing his other hat.

(ii)       Ms Low’s evidence was that the accused owed a duty to ensure best execution in the trades that he conducted. While there were no applicable guidelines from MAS in place at the time, her opinion was that the accused had a duty to ensure best execution which was “part and parcel” of the duties and obligations expected of fund managers, the role that she viewed as being played by the accused. In her report at [11], Ms Low explained best execution to mean “…achieving optimal economic outcome, taking into consideration the market circumstances.”

(iii)       Mr Cheong took essentially the same position in both his expert report and in his evidence in court. In his expert report, Mr Cheong stated that when a fund manager wishes to sell bonds, he should check for prices “in order to find the best available price to maximise the investment return”. In court, Mr Cheong added that the duty to act in the best interests of investors means ensuring that the interests of the investors were looked after and avoiding benefitting oneself at the expense of the investor. He explained that this duty was rooted in the fact that investors have entrusted their money to the fund manager to look after. Mr Cheong elaborated that acting in the best interests of a fund included getting the “best returns” which meant selling at the highest possible price.

(iv)       The Prosecution pointed out that the Defence had not called any expert to rebut and challenge these points made by the Prosecution’s experts. Thus, as recognised by the Court of Appeal on multiple occasions, the Court should be slow to reject expert evidence which was unopposed (citing Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1 (“Saeng-Un Udom”) at [26], and Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 (“Sudha Natrajan”) at [46]).

(v)       In essence, the Prosecution argued that the basis of the duty owed by the accused to SP1 investors was because the latter had entrusted their investments to him as their portfolio manager, to manage them and to sell their investment assets.

(b)     Next, the Prosecution highlighted the accused’s own evidence about the duty he owed. In this regard:

(i)       The accused had agreed that as a portfolio manager of SP1, he had a duty to sell the MIE bonds at the highest available prices that he could obtain. This was logical because the sub-fund investors invested their monies for the portfolio managers to invest, including buying and selling assets. The accused also agreed that a portfolio manager has to act in the best interests of the sub-fund he manages, which entailed getting the highest possible prices given the circumstances. This was so that the investors could get back as much sale proceeds as possible (see [106] and [107] above).

(ii)       Further, the accused had agreed that he has a duty to sell the products, when liquidating them, at the highest available prices. The Prosecution pointed out that there must be such a duty because otherwise, there would be no parameter governing or guiding the conduct of the portfolio manager, and the portfolio manager, in selling, could otherwise sell at any price he wanted.[note: 204]

(iii)       As for the denials made by the accused on the nature and scope of the duty he owed to SP1 investors, his attempts to distinguish his duty by limiting it to SP1 and not its investors, and also the distinction that the accused had sought to draw between the various roles he held at OAIP and his argument that no one, including himself, owed any duty to SP1 investors for trading or investments, the Prosecution argued that these claims were all illogical because SP1 was funded by investors’ funds. Instead, ultimately, by stepping back from labels and considering substance and not form, it was clear that the accused was entrusted with SP1 investors’ monies, and hence he owed a duty to the investors as it was the investors who would benefit or suffer a loss based on how he carried out his duty.[note: 205] It would thus be artificial to assert that duties were owed by the accused to the fund SP1 itself, but not to the investors who funded SP1.

(iv)       Further, while the accused claimed that his duty to obtain the highest available prices merely laid within his employment agreement with OAIP, when pressed, the accused claimed that this was a “general duty”, and there was “no such clause in the [employment] contract” setting this out.[note: 206]

(v)       Thus, even by his own evidence, the accused had to sell the MIE bonds at the highest available prices because the investors had entrusted their monies to him to manage. The accused was fully cognisant of this duty because he sought bids from market participants on the morning of 19 January 2016 and he claimed he was doing price discovery before carrying out the trades. The Prosecution highlighted that it would have been unnecessary for him to have done this or to claim that he was doing price discovery if he was not cognisant of his duty. Instead, he could simply have carried out the trades at any arbitrary price, if no such duty existed.

247    The Defence’s response, as extensively set out in its submissions and replies, can broadly be summarised as follows:

(a)     The Defence argued that the Prosecution had changed its stance in the course of the pre-trial preparation, and also in the course of the trial itself. The Defence also took issue with the Prosecution’s argument that the accused had an “overarching obligation” to “ascertain the highest prices available at the material time”,[note: 207] which was apparently based on a fiduciary duty or obligation that was owed. The Defence argued that “(t)his alleged duty is not mentioned in the various iterations of the charges against the accused, the CFP, nor the Prosecution’s Opening Statement.”

(b)     The Defence further argued that the Prosecution’s articulation of the duty owed by the accused was not framed in such terms in the expert reports of Ms Low and Mr Cheong and that “… the source and scope of the alleged fiduciary duty owed by the accused remains thoroughly unclear and unsubstantiated.”[note: 208]Additionally, the Defence submitted that any claim by the Prosecution experts of the accused’s alleged fiduciary duty was based on an erroneous understanding of the PPM, and of the accused’s role.

(c)     Further, even by the evidence of the Prosecution experts, the Defence argued that they had not framed the duty as one to obtain the best price, but rather, to obtain the best execution, and the Prosecution had conflated the notions of “best execution” with that of “highest price”, “highest available price” and “highest available executable price”.

(d)     The Defence instead took the position that the accused’s duty, if any, was only to obtain best execution, which does not mean the best price. Instead, the Defence highlighted that “(v)arious factors, besides price, are at play in obtaining the best execution, including the likelihood of execution and settlement, the size and nature of the order, the character of the market of the security (e.g., volatility and relative liquidity), the amount of bonds concerned, the circumstances and trading strategy of the trader or fund manager selling the bonds, the market context and the circumstances of the case.”

248    Having broadly outlined the parties’ respective cases, I now move on to examine the issues raised concerning the accused’s alleged position (and duty) as a fiduciary, and his alleged broader duty, in any event, to sell each of the MIE bonds at the highest available price.

(II)   ACCUSED’S POSITION AS A FIDUCIARY

249    I first consider the issue of whether the accused can be said to be a fiduciary, and thus owed fiduciary duties to the SP1 investors as such.

250    In the DRCS at [13], the Defence referred to Snell’s Equity (John McGhee & Steven Elliott gen eds) (Sweet & Maxwell, 34th Ed, 2020) (“Snell’s Equity”), where the learned authors had noted that “(t)he word “fiduciary” has been used in a variety of ways in equitable doctrine…” and that ““…unthinking resort” to verbal formulae has only created confusion in the fiduciary concept, and should be avoided.” (see [7-002] – citing Bristol and West Building Society v Mothew (t/a Stapley & Company) [1998] Ch 1 (“Bristol”)).

251    Further, at [7-005] of Snell’s Equity, the learned authors set out the following propositions:

(a)     The categories of fiduciary relationships are not closed. Fiduciary duties may be owed even if the relationship does not fall within one of the settled categories of fiduciary relationships, provided the circumstances justify the imposition of such duties;

(b)     Identifying the kind of circumstances that justify the imposition of fiduciary duties is difficult because the courts have consistently declined to provide a definition, or even a uniform description, of a fiduciary relationship, preferring to preserve flexibility in the concept. There is, however, growing judicial support for the view that:

a fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

[emphasis added]

(c)     The undertaking can be implied in circumstances, particularly where someone has taken on a role in respect of which fiduciary duties are appropriate. Hence, it has been said that:

(i)        Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct or the affairs of another.

(ii)       The concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal.

(d)      The expectation is assessed objectively, and so it is not necessary for the principal subjectively to harbour the expectation. Nor is it relevant whether the person who is alleged to be a fiduciary subjectively considered himself to be undertaking fiduciary duties.

[emphasis added]

252    In addition, at 7-008 of Snell’s Equity, the learned authors noted:

The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This obligation of loyalty has several facets, which are addressed separately below. Millett LJ provided a non-exhaustive list of those facets in his judgment in Bristol & West Building Society v Mothew, which is “widely regarded as a masterly survey of the modern law of fiduciary duties”

“A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal.”

The fundamental fiduciary obligation of loyalty comprises two related themes. The first prohibits a fiduciary from acting in a situation where there is a conflict between the fiduciary’s duty and his or her interest: “the objective is to preclude the fiduciary from being swayed by considerations of personal interest”. The second prohibits a fiduciary from making a profit out of his or her fiduciary position: “the objective is to preclude the fiduciary from actually misusing his position for his personal advantage”.

[emphasis added]

253    In the local case of Ho Yew Kong v Sakae Holdings Ltd [2018] 2 SLR 333 (“Ho Yew Kong”), the Court of Appeal also discussed the concept of fiduciary duties. At [135], the Court stated:.

[135] ...Fiduciary duties in the classic sense encompass the two distinct rules proscribing a fiduciary from making a profit out of his fiduciary position (namely, the no-profit rule) and putting himself in a position where his own interests and his duty to his principal are in conflict (namely, the no-conflict rule): see Bray v Ford [1896] AC 44 and Chan v Zacharia (1984) 154 CLR 178. Although conceptually distinct, these two rules share a common foundation in a director’s duty of loyalty to his company. The duty of care, skill and diligence is not a fiduciary duty because it is not imposed to exact loyalty from a director, and accordingly does not encompass either of the two aforementioned rules that are the hallmarks of a fiduciary obligation…"

[emphasis added]

254    Further, as discussed at [243] above, in Zhou Weidong,[note: 209] the Singapore High Court had recognised that a fund manager owes a fiduciary duty where he voluntarily took on the responsibility to handle investor monies. Audrey Lim JC (as she then was) had stated:

27.    .. I find that as the intended investment or fund manager under the Four Agreements, RCL and Liew (the alter ego of RCL, being its only shareholder and director) owed fiduciary duties to Zhou. Even if investment or fund managers do not fall within settled categories of fiduciaries, the circumstances of the case justify the imposition of such duties.

28    In Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654 (“Tan Yok Koon”), the Court of Appeal set out a few observations on fiduciary law. First, the hallmark of a fiduciary obligation is that he is to act in the interests of another person. The distinguishing obligation of a fiduciary is the obligation of loyalty which entails that he must act in good faith for his principal’s benefit (at [192]). Second, a fiduciary obligation is a conclusion rather than a premise. The relationship is the reason why undertaken duties are fiduciary (at [193]). Third, fiduciary obligations are voluntarily undertaken (see also Vivendi SA v Richards [2013] EWHC 3006 (Ch) at [137]–[141]). Such undertakings arise when the fiduciary voluntarily places himself in a position where the law can objectively impute an intention on his part to undertake these obligations (Tan Yok Koon at [194]).

29     I find that Liew and RCL owed a duty to act in good faith for Zhou’s benefit, having voluntarily taken on the responsibility as Zhou’s fund manager. Based on my earlier findings on the mismanagement of Zhou’s investment moneys, Liew and RCL had not acted in Zhou’s best interest, and were thus in breach of their fiduciary duties.

[emphasis added]

255    In the present case, I noted that the accused played multiple roles in OAIP, AACF and in the various sub-funds including SP1 and SP5. What was also clear was that in the context of SP1, both in the lead up to 19 January 2016, as well as on that date itself, the accused was the co-portfolio manager and, because of the restrictions placed on Mr Lai (who was supposed to be the other co-portfolio manager), the accused was effectively the sole person who was managing/trading the MIE bonds for SP1 on that date. Specifically, in respect of the MIE bonds, the accused was the sole decision maker in determining when to sell the MIE bonds, who to sell them to, and at what price and in what manner he wished to adopt to carry out the sale on 19 January 2016.

256    As the impetus to sell the MIE bonds was due to the redemption request made by SCL the majority shareholder of SP1, it was clear that the timing, method, and the price at which the accused determined the sale of the MIE bonds, would directly affect the proceeds that SCL would receive, something the evidence showed the accused was aware of.

257    Separately, in the case of SP5, the accused was not only the portfolio manager, but he was also the clear and overwhelming majority shareholder of SP5 at the time of the passthrough trade on 19 January (see [520] below). In this regard, just prior to the sale of the MIE bonds by SP1, and the ultimate purchase of these same bonds by SP5, both of which were decisions made solely by the accused, he had taken active steps to become the majority shareholder of SP5. The result of these actions was that by 18 January 2016, the day before the passthrough trade, the accused held 94.1% share of SP5, with OAIP (with the accused as one of its shareholders) owning the remaining 5.9% of SP5.

258    Further, like the situation in Zhou Weidong where Liew, the fund manager, was found to have breached his fiduciary duty to the investor Zhou when he failed to act in Zhou’s best interest, the accused who had taken on the role of the portfolio manager of SP1, and was also the sole person entrusted with and empowered to deal with the MIE bonds of SP1 on 19 January 2016, solely decided on the price, timing, mode of sale and buyer of the SP1 bonds. The accused was thus a fiduciary and owed fiduciary duties to the SP1 investors at the time he sold the MIE bonds from SP1 to SP5 via the passthrough mechanism. In other words, having been entrusted with full control, authority and management over how and when the MIE bonds would be transacted, and to whom and at what price, and having voluntarily taken on the role of dealing with them via the passthrough (to a sub-fund which was almost completely owned by him), the accused had “an obligation of loyalty which entails that he must act in good faith for his principal’s (i.e. the SP1 investor’s) benefit” (see Zhou Weidong at [28] citing the decision of the Court of Appeal in Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654 (“Tan Yok Koon”) at [192]).

259    The Defence, however, sought to distinguish the decision in Zhou Weidong from the present case by emphasising that while the intended investment or fund manager, RCL, as well as Liew who was the only shareholder and director of RCL (and its “alter ego”), were found to owe fiduciary duties to the plaintiff investor, the situation was different here as the accused was not the fund manager since the actual fund manager of AACF (including SP1) was OAIP under the PPM.

260    With respect, I am of the view that while it was technically correct to say that the fund manager of AACF (including SP1) was OAIP and not the accused, this was a distinction more in form than substance.

(a)     For one, it was not disputed that at the material time in January 2016, the accused was a director, shareholder (with 83.6% of the shares), and he was the Chief Investment Officer of OAIP. More importantly, the accused was the portfolio manager of SP1, and also the person given full control and authority over how the MIE bonds in SP1 could be disposed of. He could choose whether to sell them, when to sell them, who to sell them to, and by whatever method (i.e. via a sale to a counterparty, sale via a cross-trade, or sale via a passthrough trade). Further, throughout the entire sale process, he was the person with the sole authority and discretion to decide on the trading of the MIE bonds on the date and time in question, and he actually did so, without reference to or needing to seek clearance or approval from anyone else for his actions. His status and authority contrasted sharply with those of Mr Lai (the other person who could have traded the bonds), who would had to get the approval of the accused before he could conduct a trade of the securities in SP1.

(b)     Thus, the accused was in no different a position from Liew/RCL, the fund manager in Zhou Weidong, and hence like Liew/RCL who were found to owe a fiduciary duty to Zhou (the investor), the accused here similarly owed a fiduciary duty to the SP1 investors. Clearly, one should look beyond the labels, and focus on substance rather than form.

261    Finally, in assessing whether the accused could be said to be a fiduciary, I adopted the following guidance from the commentaries in Snell’s Equity (see [250] – [252] above), namely:

(a)     the categories of fiduciaries are not close;

(b)     fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct or the affairs of another;

(c)     the concept of a fiduciary encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal; and

(d)     the expectation is assessed objectively, and so it is not necessary for the principal subjectively to harbour the expectation. Nor is it relevant whether the person who is alleged to be a fiduciary subjectively considered himself to be undertaking fiduciary duties.

262    Thus, considering the principles summarised in [261] above, even if one disregards the decision of the High Court in Zhou Weidong that found the fund manager there to be a fiduciary (and by analogy, the accused would similarly be regarded as a fiduciary), I was of the view when one assesses the facts of the present case, namely:

(i)     the position of the accused as the portfolio manager of SP1 with full control and management of its assets on 19 April 2016;

(ii)     the fact that he voluntarily took on the role of deciding on the manner, timing and price of the sale of the assets of SP1 on that date; and

(iii)     the fact of the accused’s sole and unfettered discretion over the trading decisions of the MIE bonds;

all go to show that the accused’s role and relationship with the SP1 investors was such as to objectively give rise to “a legitimate expectation”, that he “will not utilise his position in such a way which is adverse to the interests of the principal”. Further, in line with the guidance above (see [261(d)], it was not necessary for the accused to subjectively harbour the expectation, nor was it relevant whether he subjectively considered himself to be undertaking fiduciary duties.

263    In short, I was of the view that the accused was a fiduciary in the present case vis-à-vis the investors of SP1, and hence he must act in good faith for their benefit. I would add that my assessment was consistent with the opinions of the expert witnesses, and also with the accused’s own evidence in court. As regards the latter, the accused himself recognised the conflict situation that he was in, whereby effecting the passthrough trade with the interest of SP1/its investors and the interest of SP5/himself as the overwhelming majority shareholder being essentially mutually inconsistent, he thus needed to resolve this conflict by having Pareto play an (impartial) part in this process. The latter was supposed to be effected by Pareto conducting its own price discovery so as to ensure a “fair price” for the sale of the MIE bonds.

264    All in all, it was clear that the accused owed an obligation of loyalty towards the SP1 investors, which prohibits him “…from making a profit out of his fiduciary position (namely, the no-profit rule) and putting himself in a position where his own interests and his duty to his principal are in conflict (namely, the no-conflict rule)…” (as per Sundaresh Menon CJ delivering the judgment of the Court of Appeal in Ho Yew Kong at [135]).

(III)   DUTY TO SELL AT THE HIGHEST AVAILABLE PRICE

265    In his position as a fiduciary, the accused should not benefit at the expense of his principal, or put himself in a position of conflict. His obligation of loyalty also entailed that he must act in good faith for his principal’s (i.e. the SP1 investor’s) benefit. In the case of selling the MIE bonds, this would have meant that he had to seek to sell at the highest available price, and certainly not do it in such a manner that benefits himself at the expense of the SP1 investors.

266    In any event, the Prosecution argued that there was no need to show that the accused owed a fiduciary duty before any contravention of s 201(b) of the SFA could be established. Instead from the evidence of the expert witnesses (see [246(a)] above), it was clear that in his duty as a portfolio manager when selling any asset of the fund, the accused has a duty to sell it at the highest available price that he could obtain in the circumstances.

267    The expert’s opinions were in fact fortified by the accused’s own admissions that he made in court.[note: 210]

Q.    Now, I want to ask you, as the portfolio manager of SP1, or for that matter as a portfolio manager of any of the sub-funds, when you go about to sell any asset of a sub-fund, did you have to sell at the highest available price that you could obtain?

A.     Yes, I do.

Q.     All right. That is logical because it is in order to get the highest available price for the sub-fund in selling any asset of the sub-fund, isn't it?

A.     Yes, it's logical to get the highest available price at that point of time given the circumstances then.

Q.    I understand. And it is also logical and makes sense because the investors of a sub-fund invested money into the sub-fund for the portfolio manager to invest, including to sell, correct?

So if you don't understand my question, my question simply is that what you agreed as to the portfolio manager having to sell at the highest available price in the circumstances any asset of a sub-fund, it is because investors of a sub-fund invest the money into the sub-fund for the portfolio manager to invest, including to sell assets. It is just a follow-on question. Do you agree?

A.    Yes. In general I agree, yes.

Q.    That's fair. Now, do you also agree with me that investors of a sub-fund, when they invest money to the sub-fund, they entrust their money to the portfolio manager to invest, including to buy using their money or to sell assets of the sub-fund?

A.     Yes, I agree.

Q.    Having heard from you on these questions I asked, would you be able to also agree then that for a portfolio manager to sell any asset of a sub-fund at the highest available price you could obtain in the circumstances, that was also a duty of the portfolio manager?

A.     Yes, I agree.

[emphasis added]

268    Thus, by agreeing that in his role as a portfolio manager, he owed a duty to the investors to sell the assets of SP1 at the highest possible price, the Prosecution submitted that the accused was essentially agreeing to what the experts, Mr Cheong and Ms Low, had set out in their reports and evidence.

269    I agreed with the submissions of the Prosecution. Thus:

(a)     As a portfolio manager of SP1, and one who was given sole discretion over how, when, to whom and at what specific price to sell the MIE bonds, the accused was to be guided by the duty he owed to the investors of SP1 to sell the MIE bonds at the highest possible price.

(b)     This was a duty confirmed by the experts and a duty that the accused himself acknowledged and admitted that he was aware.

(c)     As stated above, such a duty to sell the MIE bonds at the highest possible price was also consistent with the accused’s status as a fiduciary.

270    Having made clear the duty of the accused, I now go on to examine whether he breached his duty in a way as to amount to an offence under s 201(b) of the SFA.

Whether the offences have been made out

271    Having discussed the law relating to a s 201(b) offence, I now consider whether the charges against the accused have been proven beyond a reasonable doubt.

First Element: The accused engaged in an act directly in connection with the sale of securities, namely, the MIE bonds

272    The first element of the s 201(b) offence broadly concerns the actus reus of the offence and the nature of the accused’s actions. I agree that this element of the offence was made out. I explain below.

273     First, it was not disputed that the accused did intentionally sell the MIE bonds from SP1 at prices pegged to Haitong’s bid prices, and then almost immediately thereafter bought the same MIE bonds into SP5 through Pareto by way of the passthrough mechanism which he had earlier arranged with Mr Reshad.

274    To effect this sale and purchase through the passthrough mechanism, the accused had made use of two separate chats with Mr Reshad to carry out the buying and selling of the MIE bonds. This involved SP1 selling to Pareto (via a group chat started by Mr Reshad – “Chat A”) followed by SP5 buying from Pareto (via a separate one-on-one chat started by the accused – “Chat B”). The accused’s actions were reflected in P72 (reproduced below) which captured the two chats on 19 January 2016.

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275     Second, I noted that even before the passthrough trades were carried out on 19 January 2016, the accused had already taken preliminary steps in preparation for them. In this regard, aside from the actions he took to set up and prepare SP5 beforehand through the injection of his funds (see [29] above), the accused had also:

(a)     Checked with his contact at Goldman Sachs for indicative bid prices of the MIE bonds on 18 January 2016 (Monday), which was just one day before the commission of the alleged offences; and

(b)     Liaised with Mr Reshad to set up accounts with Pareto for the passthrough trades to be carried out. As set out in the transcripts of a phone call exchanged between the accused and Mr Reshad prior to 19 January 2016 (P55), Mr Reshad had told the accused that the accounts were set up and “If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great."

276    Specifically, for the transactions involving the MIE bonds on 19 January 2016, it could be seen from the two chats (P72 above) that:

(a)     During the period from 10:18:58 a.m. to 10:43:50 a.m., when Mr Reshad alerted the accused via the group chat that he was ready (to buy the MIE bonds in SP1 from the accused), all the way until Mr Reshad sold the same MIE bonds to SP5 through the accused, the accused was the sole person in OAIP that dealt with Mr Reshad for the passthrough trades.

(b)     Mr Reshad said that the same party (i.e. the accused) was buying and selling the bonds, and he just relied on the accused for the price.

(i)       Thus, when the accused unilaterally improved his offer to buy the MIE18 bonds (acting for SP5 at this stage) from 25 to 25.5 at 10.39.55 a.m., Mr Reshad had simply correspondingly adjusted the price to 25.375 (25.5 minus Mr Reshad’s spread of 0.125) and presented it to the accused (acting now for SP1) for the same bonds. The accused had then, on behalf of SP1, said “done” to confirm the trade i.e. for SP1 to sell the bonds.

(ii)       For the MIE19 bonds, it was also the accused who sold the bonds at 22 from SP1 to Pareto and then bought the same bonds at 21.875 from Pareto for SP5.

277    Thus, it was clear that apart from the accused, no one else was involved in the decision to execute the passthrough trades for the two MIE bonds, and it was also the accused alone who decided the time and price that they were transacted at – both the “sell price” by SP1 and the “buy price” by SP5.

(a)     In this regard, neither Mr Goh nor Mr Lai was involved in the seeking of bids on 19 January 2019 for the MIE bonds. They also did not know of the higher bids that were provided to the accused that morning, and neither were they involved in the actual transactions that took place at 10.41:14 a.m. (sale of the MIE bonds by SP1), or at 10:44:57 a.m. (purchase of the MIE bonds by SP5).

(i)       Specifically, Mr Goh was not involved in the trades of the MIE18 and MIE19 bonds in question.[note: 211] He also has no decision-making authority over the choice of bonds for the funds, or what would be done with the bonds after they were acquired.[note: 212]

(ii)       As for Mr Lai, he had a trading freeze imposed on him from 4 January 2016,[note: 213] and could only carry out the transactions with the approval of the accused. It was, however, not explained why approval was not granted by the accused to Mr Lai to carry out the passthrough trades since the accused was supposedly so busy on the morning of 19 January 2016, and since there was a clear potential of conflict for the accused that was involved in this transaction. Instead, Mr Lai was not present in the Bloomberg chat rooms or involved in the conversations at the material times between the accused and Ms Goyal,[note: 214] nor those between the accused and Mr Reshad.[note: 215] Further, Mr Lai was also not notified of the bid prices given by Morgan Stanley or SC Lowy.[note: 216] In addition, Mr Lai was not asked why he left the various chats involving Mr Reshad or the various counterparties on the material day that these MIE bonds were sold from SP1 to SP5 via the passthrough.

(b)     In any event, the accused accepted that he alone executed those passthrough trades with Mr Reshad on 19 January 2016 and that Mr Goh and Mr Lai were not involved.[note: 217]

(c)     As for Mr Patrick Koh, he was apparently present in the main chats (only) that the accused engaged in with some of the counterparties, as Mr Patrick Koh manned the OAIP account on the morning of 19 January 2016. The Defence suggested that his presence meant that he should have highlighted any issue of concern to the accused about the passthrough trades.

(i)       However, contrary to the Defence’s arguments, there was nothing to show that Mr Patrick Koh was aware that what the accused did would constitute an offence under s 201(b), nor was there any suggestion that Mr Koh was supposed to have any role in regulating the trades or to prevent the commission of such an offence. In this regard, Patrick Koh was a settlements staff member and not a portfolio manager, nor was he in the compliance department of OAIP. So, he was not involved in trading the MIE bonds, nor was he necessarily even familiar with the process involved to get the appropriate prices.

(ii)       Further, Mr Patrick Koh, like Mr Lai and Kelvin Goh, was not involved in the actual passthrough trades, [note: 218] as only the accused was engaged in the chats. It was also only the accused who decided when to sell the MIE bonds, who to sell them to, and at what price they should be transacted. There was no one that the accused needed to answer to or to clear his decisions with.

(iii)       Additionally, and vitally, Mr Patrick Koh was not involved in several important chats on 19 January 2016, in particular, the one-on-one chats that the accused engaged in with some counterparties/intermediaries, such as with Ms Goyal of Morgan Stanley or Mr Reshad of Pareto. Hence, Mr Patrick Koh would, at best, have had an incomplete picture about the bids that were received from the counterparties, and about what was discussed between the accused and some of the counterparties/intermediaries.

(iv)       Also, for the Haitong chat, the persons on the OAIP account were not involved as it was only carried out between the accused and Mr Ray Xie. Similarly, for the BNP account where the prices were posted, it was also only a chat between the accused and Ms Pamela Tsang of BNP, as was the chat between the accused and Jamie Tadelis of SC Lowy, which involved only the two of them. And for the Morgan Stanley one-on-one chat, it was only the accused and Ms Goyal that were involved.[note: 219] Of course, the one-on-one chat that the accused initiated between him (acting on behalf of SP5) and with Mr Reshad to buy the MIE bonds would also presumably not have been known to Mr Patrick Koh.

(v)       Finally, based on the evidence tendered, the accused as CIO would presumably have outranked Mr Patrick Koh, even if the latter had a full and complete picture of what was happening (which it appears he does not). In those circumstances, it is hardly reasonable to expect Mr Patrick Koh to be aware, let alone challenge or doubt the correctness or legitimacy of what the accused had done. So in short, contrary to the Defence’s assertions, just because Mr Patrick Koh was on the OAIP account was completely irrelevant.

278    Thus, to sum up, as regards the first element of the offence, it was clear that the accused did engage in an act directly in connection with the sale of securities i.e. the MIE bonds on 19 January 2016.

Second Element: The act was likely to operate as a fraud upon the investors of SP1

279    The Prosecution’s case on this element can be summed up as follows[note: 220]:

(a)     The accused had a duty to sell the MIE bonds from SP1 at the highest available prices.

(b)     On 19 January 2016, before 10:08:50 a.m., which was the time Haitong gave its bids for the MIE bonds, the accused had already decided to sell the MIE bonds from SP1 to SP5.

(c)     When the accused saw the Morgan Stanley bids that Ms Goyal reposted at 10.09 a.m., he knew they were executable.

(d)     The accused did not sell the MIE bonds to Ms Goyal, or the MIE19 bonds to SC Lowy, because by that time he did not intend to sell them to the market.

(e)     Even though Ms Goyal sent a message in the group chat at 10.23 a.m. asking the accused to refresh before trading, there was no reason for the accused to have gone back to the group chat with Ms Goyal and therefore he did not see this message because prior to that he did not intend to sell the MIE bonds to her.

(f)     Even if the accused had seen Ms Goyal’s message of 10.23 a.m., then if it was true that he genuinely wanted to sell the MIE bonds at the highest available prices, he ought to have asked Ms Goyal if her earlier bid prices were still valid, given that those prices were the highest amongst the bidders and he was still purportedly doing price discovery.

(g)     On 19 January 2016, when the accused received executable bids from counterparties (e.g. from Morgan Stanley, SC Lowy), he should have sold the MIE bonds to those bids because they were higher than Haitong’s or used those prices as market context for the passthrough trades.

(h)     The accused’s defence that he sold the MIE bonds from SP1 to SP5 at fair prices cannot be accepted because he did not do genuine price discovery and he had no basis to expect Mr Reshad of Pareto to do price discovery.

(i)     If the accused was carrying out genuine price discovery, he would have checked back with Morgan Stanley before he sold the MIE bonds to SP5 through Pareto. For BNP, his claim that he did not see BNP’s bid was inconsistent with his claim he was doing price discovery. When the accused asked BNP’s Pamela Tsang for bids, she responded and acknowledged. She did not state that BNP was not bidding – instead, the accused moved on. He ought to have checked back with BNP if his claim of doing genuine price discovery was true.

(j)     In connection with the sale of the MIE bonds, the accused’s acts which likely operated as a fraud upon SP1 investors comprised the

(i)       intentional act of selling the MIE bonds from SP1 and buying them for SP5 at the lower prices pegged to Haitong’s bids through Pareto; and

(ii)       done with the knowledge of the earlier higher bids when he carried out the trades.

(k)     In selling the MIE bonds from SP1 and buying them into SP5 despite knowing of earlier higher bids, the accused breached his duty to sell the MIE bonds at the highest available prices. He intentionally caused loss to the investors of SP1, as well as benefitted himself as the overwhelming majority shareholder of SP5.

280    The Defence argued that the Prosecution had failed to prove the charges beyond a reasonable doubt. Its main arguments are outlined below:[note: 221]

(a)     The accused’s duty was one of best execution, and not to sell at the best available price.

(b)     The accused had no alleged fiduciary duty.

(c)     The accused properly disclosed and dealt with his conflict of interests.

(d)     The accused did not know that the Morgan Stanley bids for the MIE bonds were executable at 10:15:21 a.m., and specifically:

(i)       The accused did not see the Morgan Stanley bids or their repost until around 10:15:21 a.m.; and

(ii)       it was not unreasonable for the accused to have asked Ms Goyal at 10:15:21 a.m. to confirm if her bid was for the full block

(e)     There was no alleged duty to sell the MIE bonds at 10:15 a.m. or shortly thereafter.

(f)     There was no alleged duty to use the Morgan Stanley bid prices which were no longer being firm, valid or executable after 10:23 a.m.

(g)     The accused only saw the Morgan Stanley chat after 10:23 a.m., when Ms Goyal had refreshed the bids.

(h)     There was no alleged duty to refresh the Morgan Stanley bids after 10:23 a.m.

(i)     The accused’s use of Haitong price was done in good faith.

(j)     The accused executed the passthrough trades at the best available price that he was aware of.

(k)     The accused did not know that Pareto, the third-party independent broker, would not do price discovery or would rely solely on him to give the price for the passthrough.

(l)     There was no motive or intention to cause loss to SP1’s investors or benefit himself as the majority shareholder of SP5.

281    I move on now to consider whether the Prosecution had established its case beyond a reasonable doubt based on its main arguments and also to review the main points put forward by the Defence.

I) Duty to sell the MIE bonds at the highest available prices

282    As stated earlier, while the Prosecution was of the view that the accused, in his capacity as portfolio manager of SP1, was a fiduciary vis-à-vis the SP1 investors, and that he owed duties to the investor as such, the Prosecution also took the broader position that for the purposes of making out the charges under s 201(b), there was no actual need to prove that the accused owed a fiduciary duty to the investors. Instead, the Prosecution said that the facts showed that in any event, the accused had a duty to sell the MIE bonds at the highest available price, and that this was consistent with the tenor of the evidence given by the Prosecution expert witnesses (which was unrebutted by contrary expert evidence), the expectations of SCL, which was the majority investor of SP1, and the accused’s own evidence that as the portfolio manager he had a duty to sell the MIE bonds at the highest available price.

283     The Prosecution also made it clear that the highest available price was something that the accused was to actively seek, and it was not the case that the accused only had to have regard to the executable prices at the time of the transaction at 10.41:14 am. Instead, the circumstances leading up to the final sale of the MIE bonds have to be considered, and not just the situation at the time of the actual transaction.[note: 222] Specifically, as s 201(b) was worded very broadly, and covers any act which the accused engaged in that was “in connection with” the sale of the MIE bonds, s 201(b) was not limited or proscribed to only the act of the accused done at the time of the actual sale transaction.

284    The Defence argued that the Prosecution has intermittently conflated the notions of “best execution” with that of “highest price”, “highest available price” and “highest available executable price”, submitting that the accused’s duty, if any at all, was only one of obtaining best execution, which requires a consideration of various factors besides price, including the likelihood of execution and settlement, the size and nature of the order, the character of the market of the security (e.g. volatility and relative liquidity), the amount of bonds concerned, the circumstances and trading strategy of the trader or fund manager selling the bonds, the market context and the circumstances of the case. This means that the duty of best execution, when obtaining a bid price, is not an exact science, and is a product of the discretion, judgment, and strategy of a fund manager keeping in mind the nature of the MIE bonds as OTC instruments, and the situation of the financial markets as at January 2016.[note: 223]

285    Having carefully considered both parties’ arguments, and the evidence of Ms Ng the representative of SCL, the evidence of the experts, Ms Low and Mr Cheong, as well as the evidence of the other witnesses involved in trading such as Mr Lai and Mr Reshad, and importantly, also the evidence of the accused himself, it was clear that without exception, the evidence showed that the duty expected of the accused, as the sole portfolio manager dealing with and selling the MIE bonds from SP1 on 19 January 2016, was that of obtaining the highest possible price for the MIE bonds.

(a)     First, as stated earlier (see [262] – [264] above) I was of the view that this duty arose from the position of the accused in the capacity of a fiduciary, who was entrusted with full discretion and control over dealings with the MIE bonds in SP1. Notably, as a portfolio manager/sole trader of the MIE bonds on the date in question, the accused had voluntarily assumed full management and decision-making over how, when and to whom the MIE bonds, and he had an obligation to act in good faith for the benefit of the investors, and certainly not to profit at their expense. Further, in the context of the accused’s role in managing the fund and its assets entrusted to him, it was both objectively clear and also subjectively obvious to the accused, that how he dealt with these assets would have a direct impact on the interests of the investors who had put money into the fund. Thus, I accepted that he had a duty to sell the bonds at the highest available price for the benefit of the investors. This was broadly in line with his role and obligations as a fiduciary (see [28] – [30] of Zhou Weidong), and also the obligations identified in Snell’s Equity for a fiduciary not to be swayed by considerations of personal interest, or to misuse his position for his personal advantage (see [249] above).

(b)     Second, in any event, I agreed with the Prosecution that the accused’s duty to sell the MIE bonds at the highest available price was clearly and logically the only objective he should have when selling the assets of a fund that he was managing, especially when he had taken upon himself the sole role of selling the MIE bonds on the day in question. That this was what he needed to do, was evidenced by the fact that he himself claimed to have been trying to seek the highest available price to sell the bonds to a counterparty, or to use the highest bid price that he could get from them as the bid price for the passthrough. In short, by his own words and his alleged behaviour, the accused was aware of his duty to get the highest possible price for SP1 and its investors (see [266] – [269] above).

286    While the Defence argued that the Prosecution (and its experts) had used a variety of different terms to characterise the duty incumbent on the accused, suggesting inconsistency in the approach, I was of the view that from the accused’s own evidence, where he admitted that he had a duty to sell at the highest available price, it was clear that the accused was fully aware of what was required of him, and hence his defence could not be said to have been in any way prejudiced, nor was the accused confused about what was expected of him, even if the Prosecution witnesses or parties had not used the exact same terms at the trial to describe the duty reposed on the accused.

287    As the sole person managing the fund, and the only person carrying out the process of sale (and determining the time, date, price, method of sale and buyer), the duty incumbent on the accused was clearly that of selling the MIE bonds at the best available price. Thus, by intentionally carrying out the act of sale at lower prices knowing that he would thereby cause loss to the investors or financial gain to himself, this was clearly in breach of his duty owed to the investors. Indeed, that this duty was clear to the accused was evidenced not only by his oral evidence but also by the rationale he gave for using Pareto on 19 January 2016 to facilitate the passthrough at the price offered by Haitong, which the accused claimed was the highest available price (that he knew of) at the time of the transaction.

288    Having thus established that the accused was required to sell the MIE bonds at the highest available price, the remaining issue to decide was whether he carried out his duty, and more importantly, whether his actions in the circumstances were acts that were likely to operate as a fraud on the investors of SP1, particularly as he was selling the MIE bonds to SP5, which was a fund which he had an overwhelming majority interest in on the date of sale.

II) The accused knew of higher executable bids for the MIE18 and MIE19 bonds but sold them at lower prices.

(1)    The accused knew that Morgan Stanley’s bids were executable

289    The Prosecution argued that on 19 January 2016, by 10:15:21 a.m. at the latest, the accused knew that the higher bids made by Morgan Stanley for the MIE18 and MIE19 bonds were executable because he responded to Ms Goyal of Morgan Stanley regarding her bids. Yet he ultimately chose not to sell the MIE bonds to Morgan Stanley. This was even though he also knew the prices offered by Morgan Stanley were the highest available prices for the MIE bonds that he was seeking bids for.

290    The relevant chats setting out the accused’s interaction with Ms Goyal of Morgan Stanley between 10:00:23 a.m. to 10:23:42 a.m. on 19 January 2016 (P4) which I had set out earlier, are reproduced again below for convenience (with the equivalent Singapore time inserted in brackets). I have also highlighted some aspects of their interaction in bold for emphasis.

P4 – main chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes

01/18/2016 21:23:42 (01/19/2016 10:23:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says Wei please refresh before trading



291    From the table above, it should be noted that after the accused sent out a blast message to the 11 counterparties (at 10:00:23 a.m. and 10:00:44 a.m.), Ms Goyal had responded almost immediately to him (see also Annex A of the DCS).

292    Within a short time thereafter, she had also specifically engaged the accused by way of a (one-on-one) side chat to discuss about her bid for the MIE bonds. Her reason for doing so was because of “noise on the main chat”. Again for convenience, I reproduce the relevant portions of P64, which is the one-on-one chat between the accused and Ms Goyal (with the equivalent Singapore time in brackets).

P64 – one-on-one chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:02:18 (01/19/2016 10:02:18 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

probably easier here given the noise on the main chat

01/18/2016 21:02:45(01/19/2016 10:02:45 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

ok

01/18/2016 21:08:07 (01/19/2016 10:08:07 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

assume nothing ?

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

ive put the bids there already



293    It should also be noted that Ms Goyal of Morgan Stanley was the first of the 11 counterparties that responded to him. She was also the first to make a bid for the MIE bonds (at 10:01:24 a.m. – see P4). Additionally, she initiated the side chat with the accused (see P64). All these acts on Ms Goyal’s part provided clear evidence that Ms Goyal was interested in the MIE bonds that the accused was seeking bids for. This fact would not have been lost on the accused.

294    Subsequently, in the one-on-one chat at 10:08:07 a.m., probably because of the accused’s lack of response, Ms Goyal asked the accused “assume nothing”. To this, the accused responded at 10:08:53 a.m. and 10:08:56 am, and told Ms Goyal that he needed a best bid from her for the whole block. He also specifically told her to use the main chat. To these requests of the accused, Ms Goyal responded at 10:09:11 a.m. that she had put the bids there (in the main chat) already.

295    These series of messages in the one-on-one chat (P64) showed that:

(a)     Ms Goyal had already posted a message to the accused that she was starting the one-on-one chat because of the noise (i.e. distractions) on the main chat, and the accused had expressly acknowledged her intention (and interest).

(b)     To her prompt, the accused subsequently responded to her between 10:08:53 a.m. to 10:09:02 a.m. to indicate that he needed her best bid for the whole block and that the bid should be made in the main chat.

(c)     Ms Goyal then replied almost immediately at 10:09:11 a.m. to say that she had done precisely what he asked her i.e. posted her best bids for the whole block in the main chat.

(d)      Thus, logically, the accused would have known to look at the main chat for Ms Goyal’s best bid for the MIE bonds since she was responding precisely in the way that he had asked her to.

296    The main chat between the accused and Ms Goyal of Morgan Stanley, which was out at [290] above is reproduced again for easy reference.

P4 – main chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes



297    These series of messages show that:

(a)     Ms Goyal was the first of the 11 counterparties, whom the accused had expressly sought out, to express interest in the MIE bonds. And they showed that she responded to him within seconds of his request.

(b)     Ms Goyal was also the first of the counterparties to make bids for the MIE bonds offered by the accused. This was done at 10:01:24 a.m., or less than a minute after he had posted his request for bids.

(c)      Her bids (“Miehol 18 - 33/ miehol 19 - 32/”) were also unqualified and made no changes to the quantum of the bonds that the accused had asked for. This was in contrast to the first bids made by Mr Ray Xie of Haitong (which was made a few minutes after than Ms Goyal’s bids) where he had made bids for lesser quantities of 1 million each of MIE18 and MIE 19 bonds (see extract of P6 below), rather than for the 2.5 million of MIE18 bonds, and the 1.5 million of MIE 19 bonds that the accused had sought bids for.

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(d)     Further, in response to the accused’s request that he had made in the side chat at 10:09:11 a.m. (P64) where the accused had specifically asked Ms Goyal to post her bid for the whole block in the main chat, Ms Goyal did precisely this when she reposted the bids “Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS” at 10:09:34 a.m. in the main chat.

298    It was thus clear that by the bids she made at 10:01:24 a.m., which she reposted at 10:09:34 a.m., Ms Goyal was posting her (unqualified) bid for the MIE bonds that he sought bids for, and she was doing so specifically in response to the accused’s request and as per his instructions for her to post her best bids in the main chat for the whole block. Clearly, Ms Goyal’s bids were for the precise quantities of MIE bonds that the accused was seeking bids for, and the accused would have known of this since she was doing exactly what he had asked her to do.

299    While the accused tried to refute this obvious conclusion by claiming that “… these two are different chats”,[note: 224] and suggested that his chats with Ms Goyal, in P64 and P4 should not be looked at as an entire conversation,[note: 225] I agreed with the Prosecution that his claims was illogical given that the two chats took place on the same morning, concerned the same bonds, and were carried out between the same two parties, i.e., the accused and Ms Goyal. Both chats were also clearly and solely in connection with the accused’s request for bids for the MIE bonds, which was the only item that the accused was dealing with Ms Goyal that morning (since she had already indicated that she was not bidding for the Indika bonds).

300    Moreover, it was clear that up to that point, the highest bids, and arguably the greatest interest in the MIE bonds, were being shown by Ms Goyal. In fact, she even took the trouble to set up a one-on-one chat with him (to get away from “the noise” in the main chat) to discuss about these very MIE bonds. Thus, the accused’s claim that he did not pay attention to her (or her bids) was completely illogical, if he was really trying to sell the MIE bonds at the highest available price as claimed.

301    Further, it should be noted that the accused had at 10:09:02 a.m. in the one-on-one chat (P64) with Ms Goyal – directed her to “pls use the main chjat (sic)”. This request from the accused made it clear that up to that time (10:09:02 a.m.), the accused was not only looking at the one-on-one chat (P64), but he was also looking at the main chat (P4) and would have seen all the messages on both chats. He had then wanted her to concentrate on making the bids on the main chat (P4) presumably because he, and she, would then focus on the discussion and deal with the MIE bonds on the main chat, and not be distracted by other chats.

302    Thus, after he had sent this message to Ms Goyal at 10:09:02 a.m. to use the main chat, it would be expected that he would be even more focused on the discussions in the main chat (P4) with her. Thus, when Ms Goyal reposted her best prices for the MIE bonds at 10:09:34 a.m. on the main chat (P4), which she did on his instructions, he would have seen these bids, at or around this time.

303    In short, the accused would have had a complete picture from around 10:09:34 a.m. at the latest, of the repeated (highest) bids made by Ms Goyal for the MIE bonds. The bids were, in any event, always on the main chat (P4) that he had directed Ms Goyal to post on.

304    I now address the accused’s claim that the prices that Ms Goyal reposted at 10:09:34 a.m. for the MIE bonds did not contain sizes, and hence it was not clear to him that her bids were executable.

305    In this regard, his evidence was that even though he had seen Ms Goyal’s 10:09:34 a.m. bid, which he claimed to have seen only around 10:15:21 a.m., he was uncertain if Ms Goyal’s bids were firm bids for the full block of the two MIE bonds. Because of this alleged uncertainty, he sought clarification from her at that time. To bolster the accused’s claim, the Defence pointed out that Ms Goyal herself admitted that it was possible the accused did not understand from her message that her bid was for the full block of MIE bonds. The Defence also pointed out that seeking clarification in this manner was something that the Prosecution’s expert witnesses agreed was reasonable to do.

306    In response, the Prosecution highlighted the accused’s interactions with Pareto contradicted his claims that he was not sure if the Morgan Stanley bids from Ms Goyal were executed. Specifically, the Prosecution compared the accused’s responses and interaction with Mr Reshad of Pareto in his dealings in the two chats between them (see extract of P72 below ), and his dealings with Ms Goyal over the same MIE bonds (in the two chats P4 and P64).

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307    As could be seen from the extract above, Mr Reshad’s bids for the MIE18 and MIE19 bonds from SP1 similarly do not state the size of these bonds that he was bidding for. Yet, the accused accepted the bids when he was selling the MIE bonds to Mr Reshad on behalf of SP1, even though no bond size was stated. The Prosecution argued that the conclusion to be drawn from the above interaction between them was that the accused knew that bids made this way (i.e. bids which only indicate the name of the bond and the price but did not specify the bond size) were clearly executable.

308    Thus, when the accused saw the unqualified bids by Ms Goyal in the main chat P4 at 10:01:24 a.m., which she then reposted at 10:09:34 a.m., and where the bids also only stated the name of the bond and the price but did not specify the bond size, the accused would similarly have known that Ms Goyal’s bids were for the same size of bonds that he was asking her (and the other counterparties) to bid for. Thus, the accused would also have known that these bids made by Ms Goyal at 10:01:24 a.m., and which she reposted at 10:09:34 a.m., were executable.

309    In response, the Defence argued that the interactions between Mr Reshad and the accused were different from those between Ms Goyal and the accused because, in the case of the former, it was a passthrough trade, while the latter was not. In this regard, the Defence argued that in the case of the former “… both the accused and Pareto were aware that the premise of Pareto’s involvement was as an intermediary to facilitate a passthrough trade of a known and specific block of MIE bonds from SP1 to SP5”[note: 226].

310    However, with respect, there appears to be no indication from Mr Reshad’s evidence that he was even aware of the actual amount of MIE bonds to be traded via the passthrough prior to his actual dealing with the accused via the chats in P72 on 19 January 2016. In other words, what Mr Reshad did – when he reflected the price that he was bidding for the MIE bonds from SP1 at 10:37:27 a.m. (without specifying the quantities of the bond in his bid) - was no different from how and what Ms Goyal repeatedly did when she similarly bided, much earlier and at a significantly higher price, for the same two bonds.

311    I would add that, contrary to the Defence’s argument in DRCS,[note: 227] the fact that Mr Reshad had added the word “FIRM” in his bid when he was buying from SP1 (Chat A in P72) was not a critical consideration in whether the bid could be regarded as executable since, as rightly pointed out by the Prosecution, the word “firm” did not appear in the accused’s own bid (made on behalf of SP5) to buy the MIE bonds from Mr Reshad, nor did the word “firm” appear in Haitong’s bids to SP1, even though the accused had always taken the position that the Haitong’s bids were the ONLY executable bid at 10:41:14 a.m. when the passthrough trades were initiated.

312    All in all, I agreed with the Prosecution that by the approach the accused took when selling the MIE bonds to Mr Reshad, it was clear that the absence of the bond size in Mr Reshad’s bids did not render the bid non-executable as the bid was made in response to the sizes of the bonds already specified in the request for bids. Applying the same logic to the bids by Ms Goyal, even if the accused only saw Ms Goyal’s bids as late as 10:15 a.m., he would have known that her bids were executable. He would also have known that they were the highest available bids for the MIE bonds that he was allegedly in such a hurry to sell.

313    I further noted that the evidence of the Prosecution experts was also that the bids posted by Ms Goyal for the MIE bonds - specifically in response to the accused’s request for bids - were executable. That no contrary expert evidence was produced, nor any evidence from the witnesses (such as Ms Goyal, Mr Reshad and Mr Lai, all of whom traded bonds) was given which contradicted this, fortifies the opinion of the two Prosecution experts on this issue.

314    In addition, while the accused asked questions of Ms Goyal in the main chat (P4) at 10:15:21 a.m. and 10:15:29 a.m. about her bids for the MIE bonds, the Prosecution submitted that it was actually unnecessary for him to have done so because he must have known that Morgan Stanley bids were executable.[note: 228] In any event, the following extracts of the Notes of Evidence also showed that the accused was aware of the bids by Ms Goyal of Morgan Stanley’s bids that were made at 10:01:24 a.m. (and which were reposted at 10:09:34 a.m.), although he claimed to have only seen them only at 10:15 a.m.

Q:    So let me repeat. Essentially her bids at 10:09:34 for both MIE 18 and MIE 19 were in response to your seeking of bids at 10 a.m. for the MIE 18 bond of 2.5 million, for the MIE 19 bond of 1.5 million, as well as for the Indika of 2 million. Do you agree it was in response to your seeking of bids at 10 am?

A: That’s correct. I think so.

…

Q:    … Let me put that question to you again so that you be not confused. Essentially I put it to you that when you saw the 10:09:34 prices by Morgan Stanley Megha Ms Goyal you knew that they were in response to your 10.00 message seeking for bids for the full sizes of the MIE 18 and MIE 19 bonds; that’s my position. Do you agree or not?

A:     Yes, I agree but, to clarify, I saw it at 10.15 of the 10.09 prices, just to clear up on the question.

[emphasis added]

315    Thus, to sum up, the evidence of the accused fortified my earlier conclusion that the accused would have known, by 10:15 a.m. at the latest, of the Morgan Stanley bids (made at 10:01:24 a.m., and again at 10:09:34 a.m.), and that he knew that they were executable.

316    The accused also claimed that he responded to Ms Goyal’s message of 10:09:34 a.m. because he had changed his mind from his initial request for bids for a block of three bonds to just bids for the two MIE bonds, and that his message made at 10:15:29 a.m. to Ms Goyal of “miehol 18s 2.5 mm, miehol 19s 1.5 mm?” in the main chat (P4 – see [296] above) was made because he was clarifying that he wanted bids for the MIE bonds only.

317    However, I agreed with the Prosecution that this claim does not make sense because the accused’s two questions made at 10:15:21 a.m. and 10:15:29 a.m. respectively to Ms Goyal, flowed immediately from Ms Goyal’s reposted prices for the two MIE bonds. Moreover, the first of his questions was made at 10:15:21 a.m. where he asked if her posted prices were for the “whole block” i.e. for the whole size of the MIE bonds she had given prices for. The accused’s next question, which he made eight seconds later at 10:15:29 am, clarified his position and also specified the sizes of the MIE bonds that he was referring to in his earlier question. I reproduce the relevant extracts of P4 again.

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA Says yes



318    From the above, it could be seen that when the accused saw Ms Goyal’s bid of 10:09:34 a.m., Ms Goyal was giving her best bid for the MIE bonds that the accused had sought bids for, and that Ms Goyal’s bids were executable.

319    Separately, the accused claimed that he did not take the prices posted by Morgan Stanley at 10:09:34 a.m. into account when he saw them, purportedly around 10.15 a.m. Purportedly on that basis, he then posed the question “miehol 18s 2.5mm, miehol 19s 1.5mm?” at 10.15:29. His evidence was as follows:[note: 229]

Q.    Well, you said earlier you don't -- "I don't think so much about what the other parties have said." But, you see, your question at 10:15:29 was about the same two MIE bonds of which Morgan Stanley Megha Ms Goyal had given prices for at 10:09:34 and you asked for the sizes, whether 2.5 million MIE 18 and 1.5 million MIE 19. Therefore, your question at 10:15:29 to Morgan Stanley Megha Ms Goyal was whether her prices for the MIE 18 and MIE 19 were for the sizes you asked for. Do you agree or disagree?

(Pause)

A.    No, I think -- I think you're thinking I'm asking the question with reference to the price. I'm -- what I'm saying here is that I'm not asking that question with reference to the earlier price. I'm asking a question I'm looking for the price at that point of time for this bond and this size. So I'm asking a question without any reference to the 10.09 that she's saying. I'm asking her by this statement give me a price for the MIEHOL 18s and MIEHOL 19s --

320    However, the accused’s claim in court – effectively that he was not making reference to Ms Goyal’s 10:09:31 a.m. message when he engaged her in the chat at 10:15:29 a.m. – does not make any sense, since he had just, only seconds earlier (at 10:15:21 a.m.) posed a question (“for whole block?”) to Ms Goyal’s very same message (see [317] above).

321    The Prosecution also pointed out to the accused that his position in court was also different from his earlier instructions to a witness that the Defence had originally intended to call, one Mr Porcelli. This could be seen from Mr Porcelli’s report (report D35i – cited by the Prosecution), where the accused had informed Mr Porcelli that “when [he] asked Morgan Stanley’s Ms Goyal at 10:15:21 and at 10:15:29, [he was] asking her about the prices she had given at 10:09:34”[note: 230] (emphasis added)

322    Similarly, at paragraph 13(a) of a report (D34i) from another witness whom the Defence had originally identified as its expert witness, one Mr Hidetaka, the accused had informed Mr Hidetaka that “At 10:15:21 a.m. and 10:15:29 am, [the accused] sought confirmation from Morgan Stanley that its bids were for the whole block of 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19”. Indeed, the accused confirmed that his instructions to Mr Hidetaka were that when he asked Ms Goyal his questions at 10:15:21 a.m. and 10:15:29 a.m. in the main chat with her (P4), he was asking her whether her prices for the MIE 18 and 19 of 10:09:34 were prices for the 2.5 million of MIE 18 and 1.5 million of MIE 19.[note: 231]

323    In short, what the accused said in court, and what he said to the two witnesses that he originally intended to call as his expert witnesses, were at odds with one another. Indeed, contrary to the accused’s court testimony that his questions posed at 10:15:21 a.m. and 10:15:29 a.m. were not made in reference to what Ms Goyal had stated at 10:09:24 a.m., this was NOT what the accused told his own experts earlier. It can only be concluded that despite his claims in court otherwise, his messages at 10:15:21 a.m. and 10:15:29 a.m. to Ms Goyal in P4 were indeed made in response to Ms Goyal’s reposting of her bids at 10:09:24 am.

324     Further, the totality of the evidence showed that the accused knew – by 10.15 a.m. at the latest - that the Morgan Stanley’s bids for the two MIE bonds, which Ms Goyal posted as early as 10:01:24 am, reposted on 10:09:34 am, and further confirmed to him again at 10:15:42 am, were executable bids. Yet the accused chose not to sell the MIE bonds to Morgan Stanley or used Morgan Stanley’s bids as reference prices for the subsequent passthrough trades.

325    I agreed with the Prosecution that given the following factors, namely:

(a)     the accused’s alleged urgency to sell the MIE bonds on the morning of 19 January 2016 in view of the supposed dire state of the market and the downgrade of the MIE bonds, as well as the pressure placed on him by SCL to redeem the bonds by the end of January 2016;

(b)     the supposed short time that the accused had to sell the bonds on 19 January 2016 itself due to his apparently busy schedule on that day caused by the many conflicting activities that were supposed to take place; and

(c)     the clear interest in the MIE bonds, and the obviously highest bids made by Ms Goyal of Morgan Stanley for them (at 10:01:24 am, reposted at 10:09:34 am, and further confirmed at 10:15:42 am), in contrast to the general lack of interest from most of the rest of the 11 counterparties that the accused engaged in that day, as well as the dismal other bid by Haitong for the MIE bonds,

it was obvious that the accused should have sold the bonds to Ms Goyal at the latest by 10:15:21 a.m.

326    Alternatively, if the accused should still have wanted to proceed with the passthrough to sell the MIE bonds to SP5, which was the fund that he had the clear majority interest, then he should have sold the MIE bonds at the price offered by Ms Goyal when Mr Reshad said that he was ready to do the trade at 10:18 am. Instead, what the accused ultimately did was to use Haitong’s prices for the passthrough trades for the MIE bonds from SP1 to SP5, even though the accused knew that these bid prices from Haitong were “too low”. His sentiments towards the Haitong bids could be seen from his answers given in his statements to the CAD:

Question 671:

... [S]o when did you confirm that SP5 has to be activated as a backup to buy the 2 Miehol bonds?

Answer:

On 19 January 2016 itself, before I had the Bloomberg conversation with Haitong.

Question 672:

You already decided and told yourself that SP5 will need to be activated for the cross trades before having the Bloomberg conversation with Haitong?

Answer:

Yes.

Question 673:

What was the purpose of asking Haitong for the quote then?

Answer:

There is a possibility of selling to Haitong.

Question 674:

Why did you not sell to Haitong?

Answer:

I don’t want to sell the Miehol bonds at the price of 25 for MIE18 and 20 for MIE18.

Question 675:

Why did you not want to sell at the price of 25 for MIE18 and 20 for MIE19 to Haitong?

Answer:

The price was too low...”

[emphasis added]



327    There was thus clearly no justification for the accused not to have sold the MIE bonds to Morgan Stanley by 10:15:21 a.m. at the latest, but to instead carry out the passthrough trades at the much lower Haitong prices subsequently. There was especially no excuse for him to have done so when he was clearly and knowingly benefitting a fund i.e. SP5 where he had overwhelming direct shareholding and interest. Yet the accused did precisely this, at the expense of a fund SP1 that he was not a shareholder of. His actions resulted in a loss to the SP1 investors whose interest he was supposed to be protecting and advancing.

(2)    The accused always intended to carry out the passthrough trades and did not engage in genuine price discovery before that

328    The accused also claimed that he set aside the period from 10 to 10.30 a.m. on 19 January 2016 to engage in price discovery. However, the Prosecution disputed this claim arguing that the accused never engaged in genuine price discovery for the MIE bonds before he sold them to SP5 and that he also had no basis to expect that Mr Reshad would do price discovery for the MIE bonds.

329    I will now deal with the issue of whether the accused actually engaged in any genuine price discovery.

(A)   The evidence contradicted the accused’s claim that he conducted genuine price discovery

(I)   THE ACCUSED DID NOT SELL TO COUNTERPARTIES THAT GAVE HIGHER EXECUTABLE BIDS FOR THE MIE BONDS

330    The Prosecution highlighted that the accused’s evidence was that for genuine price discovery, the intent must be to seek the highest available price to sell the MIE bonds. However, the accused did not do this in the morning of 19 January 2016. In this regard, the Prosecution pointed out that on that morning, despite claiming to have set aside time from 10:00 – 10:30 a.m. purportedly for price discovery, the accused did not sell the MIE bonds to counterparties which had provided him with executable bids (i.e. Morgan Stanley, SC Lowy and BNP), which were all higher than Haitong’s bid prices.

331    In this regard, if the accused had been conducting genuine price discovery during that time, he ought to have sold the MIE bonds (either one or both) to any of these counterparties or used their prices as reference for the passthrough trades when he eventually sold the bonds to SP5. Instead, the passthrough trades were conducted by the accused at significantly lower prices.

332    As regards the Prosecution’s argument, I agreed that there were clearly executable bids from counterparties that the accused could and should have sold the MIE bonds to rather than executing the passthrough trades. Instead, in deciding to proceed with the passthrough trades in the manner and at the prices that he did, the accused sold the MIE bonds at much lower prices to a fund (SP5) in which he had a clear personal interest and a huge personal shareholding in. In this regard, the bids from any of the three counterparties, Morgan Stanley, SC Lowy or BNP would clearly have resulted in much higher prices and benefits for the SP1 investors. I elaborate on this below.

(i)    Morgan Stanley’s bids for MIE18 and MIE19 bonds

333    As regards the bids by Morgan Stanley, this has been discussed exhaustively above. To summarise:

(a)     The accused could not explain why he did not check or transact with Ms Goyal of Morgan Stanley where the prices were posted on the main chat, despite her having given the highest bids that he had known at that time (10:15 a.m. at the latest). This was even more unfathomable when it was the accused who had deliberately told her (at 10:09:02 a.m. on the one-on-one chat) to use the main chat to post /discuss the bids for the whole block of MIE bonds that he was selling.

(b)     Indeed, in response to his instructions, Ms Goyal had faithfully complied and replied to him seconds later (at 10:09:11 a.m. on the one-on-one chat (P64) to say that she had “put the bids there [in the main chat] already” (see below).

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA says:

ive put the bids there already



(c)     Yet the accused did not follow up on those highest bids made at that time.

ii)    SC Lowry’s bid for MIE19 bond

334    As for the SC Lowy bid, this was made for the MIE19 bonds at 10:16:18 a.m. (see P52 – chat message with SC Lowy reproduced below)

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(a)     Thus, as far as SC Lowy’s bid was concerned, the accused did not dispute that it was executable for the MIE19 bond, although he said that while it was possible to sell the MIE19 bonds to SC Lowy (which would have been at a higher price than the passthrough price that he eventually sold the MIE19 bond to SP5), the accused declined to sell to SC Lowy because he wanted to sell the MIE bonds as a block, allegedly because if he only sold the MIE19 bonds to SC Lowy, he may not have been able to sell the MIE18 bonds.[note: 232]

(b)     However, with respect, the accused’s claim makes no sense since the accused could have subsequently bought the remaining MIE18 bonds for SP5 via the passthrough, even if he had sold the MIE19 bonds to SC Lowy at the higher price of 28.5. In such a scenario, the price he used for the passthrough trade for the MIE18 bonds, even if there was a genuine basis not to sell to Morgan Stanley or BNP at their higher prices, could still be the price offered by Haitong. This would still result in the SP1 investors being better off than they would be when the accused used the Haitong prices to buy the MIE bonds from SP1. Thus, selling to SC Lowy in such a scenario would at least be more closer aligned with the accused’s duty, and supposed intention, of selling the MIE bonds (at least the MIE19 bonds) at the highest available prices.

(c)     To do otherwise and proceed with the passthrough trades for both the MIE bonds at the Haitong prices, would be at the expense of the SP1 investors because they would have obtained more in sale proceeds for the MIE19 bond at least, if SC Lowy’s bid had been used. The accused admitted as much in court.[note: 233]

COURT:

I think the point he's trying to make and it's been asked quite a lot of times is you could have used the higher price or SP5 could have offered a higher price to essentially to SP1 through Pareto and SP1 will still make more money. I think that's in essence what he's trying to say. So why didn't you do that? That's really what he's asking.

A.

Your Honour, I don't do that because I need to take the

price as a whole, as both --

COURT:

Why? SP1, if your idea is for SP1 to get highest possible price, why can't you do that? That's fundamentally what he's asking, he's been asking and you're not really answering. You know, at some point we have to deal with it and move on.

A.

I'm sorry, your Honour. It's not the highest available price for that bond. It's the highest available price for what I'm trying to sell, which is the block. So I did not use this price by itself for the 19s because this is not -- this may not result in the highest available price for the block.

COURT:

Fundamentally the point is this: if you had used the higher price, 28.5, for MIEHOL 19 and still used Haitong's lower price for MIEHOL 18 -- "you" meaning SP5 -- would SP1 have made more money or less money? Do you understand the question?

A.

SP1 would have made more money.

…

DPP:

Therefore, if you had used the SC Lowy price for MIE 19 and sold it using that price to SP5, in contrast with the ultimate price that was sold to SP5 for the MIE 19, SP1 investors would have gotten $99,375 more. Do you agree?

A.

I agree.

[emphasis added]



335    As for counsel’s argument that “if [the accused] were to only sell the MIE19 bonds to SC Lowy, he would have to re-do price discovery for just the MIE19, which would have gotten different responses and different prices than when he was doing price discovery for the MIE bonds as a block”[note: 234], with respect, this is not an argument consistent with the accused’s own actions.

(a)     In this regard, when the accused first sought a bid from the 11 counterparties (at 10:00:23 a.m. and 10:00:44 a.m.) it was for THREE bonds – namely MIE18, MIE19 and Indyij23. In other words, he was doing price discovery for a block of three bonds at that time. Three of the counterparties (Haitong, Morgan Stanley and SC Lowy) reverted with bids ONLY for one or two of the MIE bonds, with none making any bid for Indyij23.

(b)     In the case of Haitong, it only bided for the two MIE bonds. Yet the accused NEVER proceeded to re-do price discovery for the two MIE bonds alone as a block when his original request for bids was for a block of three bonds. Instead, the accused used the Haitong’s prices, which were for the two MIE bonds only, to carry out the passthrough trades. In other words, the accused changed his plan by discarding the INDYIJ23 bonds from the block that he was trying to sell.

(c)     Further, the Prosecution pointed out that the accused himself had conceded that there was nothing to stop him from selling the MIE19 bonds alone to SC Lowy, or using the SC Lowy bid price as market context for the passthrough trades for MIE19 bonds,[note: 235] and then going on to separately sell the MIE18 bonds to other counterparties, or to then sell them to SP5 at the final price that he actually paid via the passthrough (i.e. at 25.375).

(d)     In short, it was entirely possible for the accused to have sold the MIE19 bonds to SC Lowy at the higher price that SC Lowy offered, and then carry out the passthrough trade with only the MIE18 bonds, without having to re-do the price discovery for the MIE18 bond alone. Alternatively, the accused could also have used the higher SC Lowy bid prices for the MIE19 bonds, when he conducted the passthrough trade for both of the MIE bonds. Either way, he would have made more money for the SP1 investors.

(e)     Yet the accused declined to take either of these actions that would have benefitted the SP1 investors. Instead, he deliberately chose to carry out the passthrough trade for the MIE19 bonds by selling them at a lower price to SP5. By doing so, the accused personally benefitted from this action, as he was the overwhelming majority shareholder of SP5 which was paying the lower price for the MIE bonds. His actions were also done to the detriment of the SP1 investors and caused loss to them.

(f)     I would also add that there was never any requirement for the MIE bonds to be dealt with as a “package” rather than individually and that the accused himself was aware of this.

(i)       This was in fact seen from the accused’s own actions when he was conducting the passthrough.

(ii)       In this regard, as seen from P72, when the accused was representing the buyer (SP5) in his dealing with Mr Reshad, the accused had revised his bid for the MIE18 bonds only (at 10:39:55 a.m.) without making a corresponding change to his bid for the MIE19 bond, even though the bid for the MIE19 bond was originally made together with the bid for the MIE18 bond at 10:36:13 a.m.

(iii)        This showed clearly that the prices and treatment of the two bonds could be delinked, and were in fact, dealt with independently of each other even by the accused himself. It also showed that the bid price of one was not dependent on the bid price of the other.

(g)     As for the argument made by the Defence that selling bonds in small pieces would give rise to the impression of dumping, this was clearly not something the accused was concerned with at the time.

(i)       Instead, if this was really the accused’s concern, it made no sense for the accused to have abandoned his initial strategy of selling three bonds and only selling the two MIE bonds, as such an impression of dumping could also be created by such action.

(ii)       Neither would the accused have reached out to as many as 11 counterparties, when the norm appears to be to approach only three to five, as reaching out to so many counterparties surely created the impression of desperation on the part of SP1, and “..actually serves to depress the prices that he's likely to get.”. This was the precise point made by the expert witness, Ms Low (see [67(a)] above).

(h)     In short, since the accused does not deny having seen the SC Lowy bid for the MIE19 bond, the fact that the accused did not use SC Lowy’s MIE19 bid price (at 28.5) which was substantially higher than the 21.875 offered to SP1 via the passthrough (based on Haitong price), discredits the accused’s claim that he was doing genuine price discovery. Instead, if he was doing genuine price discovery to achieve the highest available price, he would at least have used SC Lowy’s bid price for the MIE19 bonds so as to obtain more sale proceeds for SP1 investors (assuming that he really knew nothing about the Morgan Stanley or BNP bids at that time).

(i)     Clearly, the accused could have sold the MIE19 bonds to SC Lowy or used its prices in the passthrough trade for the MIE19 bonds, and still carried out the passthrough trade for the MIE18 bonds, as the decision whether and how to carry out the passthrough trade with the MIE18 bonds was solely his to make. This would at least have been more consistent with his alleged objective of seeking the highest possible price for the MIE bonds for the SP1 investors.

iii)    BNP’s bids for the MIE bonds and the Indika bonds -alleged lack of awareness

336    Finally, I deal with the bids made by BNP.

337    Based on Annex A of the DCS, which was a compilation by the Defence of the chats between the accused and the various counterparties from 10:00:23 a.m. and 10:30:47 a.m., it could be seen that similar to Ms Goyal of Morgan Stanley, Ms Pamela Tsang of BNP was also interested in the bonds that the accused was seeking bids for.

(a)     In this regard, Ms Tsang responded to the accused as early as 10:00:31 a.m. and again at 10:00:55 a.m. and 10:00:57 am, to the request for bids for the bonds. Like Ms Goyal of Morgan Stanley, Ms Tsang also engaged in a one-on-one chat with the accused, again indicating her interest in the bonds that the accused was trying to sell. I set out the relevant chats between the accused and Ms Tsang, with some parts highlighted in bold for emphasis.

01/19/2016 02:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/19/2016 02:00:31 (01/19/2016 10:00:31 SGT) PAMELA TSANG, BNP PARIBAS Says hi mom pls.

01/19/2016 02:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says sorry, i mean bids

01/19/2016 02:00:55 (01/19/2016 10:00:55 SGT) PAMELA TSANG, BNP PARIBAS Says oh !

01/19/2016 02:00:57 (01/19/2016 10:00:57 SGT) PAMELA TSANG, BNP PARIBAS Says sec

01/19/2016 02:11:48 (01/19/2016 10:11:48 SGT) PAMELA TSANG, BNP PARIBAS Says Weiyeh- bear with us- coming right back. just got a few things coming in

01/19/2016 02:12:18 (01/19/2016 10:12:18 SGT) WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

01/19/2016 02:12:22 (01/19/2016 10:12:22 SGT) PAMELA TSANG, BNP PARIBAS received an invite from WEIYEH SUN, ONE ASIA INVESTMENT Says pam

01/19/2016 02:12:22 (01/19/2016 10:12:22 SGT) PAMELA TSANG, BNP PARIBAS has joined the room

01/19/2016 02:12:26 (01/19/2016 10:12:26 SGT) PAMELA TSANG, BNP PARIBAS Says hey

01/19/2016 02:12:32 (01/19/2016 10:12:32 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says can you give me a bid for the whole block?

01/19/2016 02:12:38 (01/19/2016 10:12:88 SGT) PAMELA TSANG, BNP PARIBAS Says which one do u hv a block

01/19/2016 02:12:49 (01/19/2016 10:12:49 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says need to clear

01/19/2016 02:12:58 (01/19/2016 10:12:58 SGT) PAMELA TSANG, BNP PARIBAS Says which name do u own the blcok ? mie 18, 19 or indika

01/19/2016 02:13:03 (01/19/2016 10:13:03 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm

01/19/2016 02:13:11 (01/19/2016 10:13:11 SGT) PAMELA TSANG, BNP PARIBAS Says ah u mean thts the entire position already

01/19/2016 02:13:15 (01/19/2016 10:13:15 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says all three. need a bid yes

01/19/2016 02:13:19 (01/19/2016 10:13:19 SGT) PAMELA TSANG, BNP PARIBAS Says k. seccy

01/19/2016 02:22:17 (01/19/2016 10:22:17 SGT) PAMELA TSANG, BNP PARIBAS Says Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block otherwise, we can bid better for say 500k each and we need an order to work the balance.

01/19/2016 02:33:02 (01/19/2016 10:33:02 SGT) PAMELA TSANG, BNP PARIBAS Says see this?

01/19/2016 02:40:31 (01/19/2016 10:40:31 SGT) PAMELA TSANG, BNP PARIBAS Says *** PAMELA TSANG rang the bell



(b)     Yet again, despite specifically asking Ms Tsang of BNP for a bid for all three bonds at 10:13:15 a.m., the accused claimed that he did not even check with her for the result of his request, or the price of her bids, even though Ms Tsang had clearly and consistently expressed obvious interest in the bonds. In fact, Ms Tsang of BNP made a clearly valid and executable bid at 10.22:17 a.m. (“Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block”), which the accused admitted in court “looks like a firm bid to me”. The accused, however, claimed not to have seen the bids that she made, before he carried out the passthrough trades at 10:41:14 a.m. [note: 236]

(c)     Again, the accused’s claim about not being aware of Ms Tsang’s bids was unbelievable when one considers that it was the accused himself who had specifically asked Ms Tsang of BNP for a bid for all three bonds, and she had promptly responded to him. In fact, Ms Tsang was the only counterparty to make a bid for all the three bonds that the accused had originally sought bids for. I would add that BNP’s bids were also made when the accused’s price discovery process was taking place in full swing, and hence for him to have claimed not to have known of them simply beggars belief.

(d)     In addition, the accused’s story was made even more unbelievable when one considers that Ms Tsang even made a deliberate and conscious effort to get the accused’s attention when she “rang the bell” at 10:40:31 a.m. before the accused had actually started the sale of the MIE bonds from SP1 to Pareto (which took place at 10:41:14 a.m.).[note: 237] Since the Defence itself had taken the position that the actual price discovery had not ended until the passthrough actually began at 10:41:14 a.m., the fact that Ms Tsang consciously and deliberately alerted the accused before he carried out the passthrough trades with Pareto at 10:41:14 a.m. must have meant that he would have seen and been aware of the higher prices Ms Tsang was offering to SP1 for the MIE bonds. Yet the accused apparently chose to ignore the higher BNP bids and carried out the passthrough trades to the detriment of the SP1 investors, and to the obvious benefit of SP5 (and hence of the accused himself as its overwhelming majority shareholder).

338    I would add that not only had Ms Tsang of BNP rang the bell at 10:40:31 a.m., which would have surely alerted the accused of her interest before he carried out the passthrough trades, even in the case of the other counterparties which put in valid bids such as Ms Goyal of Morgan Stanley, and SC Lowy, those bids and messages would have been highlighted in their chats with the accused, and such highlighting would have resulted in getting his attention.

339    Further, these three counterparties (BNP, Morgan Stanley and SC Lowy), together with Haitong, were the only ones of the 11 counterparties that he engaged with, which had expressed interest in bidding for the bonds that the accused was trying so hard to offload that morning of 19 January 2016.

340    Thus, it was inconceivable that the accused did not see the executable bid of Morgan Stanley (when it was made at 10:01:24 a.m., and then reposted at 10:09:34 a.m., despite the various promptings of Ms Goyal), or the executable bid of BNP (made at 10.22:17 a.m. despite the numerous promptings of Ms Tsang) until after he had carried out the passthrough trades with Pareto at 10:41:14 a.m. The accused’s claim was especially dubious given his assertion that he was doing price discovery specifically during this period of time when they were making their bids to him. Simply put, the accused’s claim of his lack of awareness of these valid bids was completely incredible.

341    While the accused also claimed that it was “impossible to keep track”[note: 238] of the Bloomberg conversations that he had with counterparties, it should be noted that the accused was not exactly a babe in the woods in the field of fund management and trading, and he would have experience in working with and responding to bids and offers being made to him in his role as a portfolio manager who also conducts trades. More importantly, it was the accused himself who had supposedly chosen to do price discovery with at least 11 counterparties in that half hour window, even though the accused’s own evidence was that the norm was for only “two to three counterparties” to be engaged.[note: 239]

342    Quite aside from the fact that such a practice of engaging with as many as 11 counterparties would surely have gone against his admitted concern of giving the impression of a fire sale to others, it was also highly dubious that the accused claimed not to have known of BNP’s firm bid made during the period that he himself set aside for price discovery, and also put into doubt the reasons he gave as to why he did not ‘refresh’ Morgan Stanley bid during the same period of price discovery. It was further unbelievable for him not to have used SC Lowy’s bid for the MIE 19 bonds. Any of these actions would have been more aligned with his claimed objective of seeking the “highest available prices” for the MIE bonds, and yet none of these actions were taken by him.

iv)    Using Haitong’s bid prices for the passthrough made no sense

343    I next deal with the accused’s alleged basis for using the Haitong prices for carrying out the passthrough trades. In this regard, the accused essentially said that at 10:41:14 a.m. the Haitong prices were the only prices he was aware of that were executable for both MIE bonds (as a block), and hence he had used those prices to carry out the sale of the MIE bonds via the passthrough. However, I agreed with the Prosecution that the accused’s alleged claim and his purported reasons for relying on Haitong’s bid prices for the passthrough trades were unbelievable.

344     First, while claiming that “(t)he markets move, things move very quickly”,[note: 240] it was unfathomable for the accused to rely on Haitong’s bids (which were received much earlier) at 10:08:50 a.m. as market context to conduct the passthrough trades at 10:41:14 a.m., given that Haitong’s bids were made over 30 minutes before.[note: 241] Presumably things could have changed by then, especially given the alleged volatility of the market. Indeed, this was clearly the case as other counterparties, like BNP and SC Lowry had in fact made higher bids for one or more of the MIE bonds between the time of Haitong’s bids, and the time the accused carried out the passthrough trades.

345    Moreover, Haitong’s bids made by Mr Ray Xie at 10:08:50 a.m. appear to have been qualified and limited in time, since Mr Ray Xie had explicitly said that his bid prices made at 10:08:50 a.m. were “for now”[note: 242]. Thus, it was inexplicable for the accused not to have checked with Mr Ray Xie whether those Haitong bids were still valid at 10:41:14 a.m. when he purportedly used them as market context for the passthrough trades.

346     Second, if the accused was so careful – at 10:15:21 a.m. and 10:15:29 a.m. – to ask questions about the higher bids that Ms Goyal of Morgan Stanley had made at 10:01:24 a.m. and reposted at 10:09:34 a.m., it was inexplicable why the accused would have no questions about the much lower bids that Haitong made at 10:08:50 a.m., when he decided to carry out the passthrough trades at the much later time of 10:41:14 a.m., using bids that were more than 30 minutes old.

347     Third, it also seemed strange that the accused would be so willing to go ahead with using the Haitong bid prices to carry out the passthrough trades knowing full well that (in his own words) the bids by Haitong were “too low” (see [326] above).

348    All in all, the accused’s actions, more than his words, spoke volumes. It appeared that he was clearly happy to go with using Haitong’s “too low” bids as market context for the passthrough trades, simply because this benefitted SP5 of which he himself was the majority shareholder with almost total ownership of SP5. In other words, he was quite willing to take action that he knew benefited himself, while causing losses to the SP1 investors in the process.

349    In totality, the accused’s actions provided a strong basis for the Prosecution’s argument that “…either he was not serious about selling to the 11 counterparties or he was, in fact, scouting for low bid prices to use as market context for the passthrough trades while ignoring/deflecting higher bids.”[note: 243]

350    Whatever the case, the clear conclusion that one would draw was that the accused never carried out genuine price discovery for the MIE bonds before he executed the passthrough trades. Instead, the latter was done in a manner and at a price that was clearly detrimental to the SP1 investors and of benefit to the accused himself, as the passthrough prices were significantly lower than any of the bid prices from Morgan Stanley, BNP and/or SC Lowy.

(II)   THE ACCUSED’S CLAIM ABOUT SETTING ASIDE 10:00 TO 10:30 A.M. FOR PRICE DISCOVERY WAS UNSUBSTANTIATED

351    Since the accused was “very busy” that morning, and he wanted to sell the MIE bonds as soon as possible, he could (and presumably should) have carried out the passthrough trades by selling to SP5 through Mr Reshad earlier in the morning of 19 January 2016 than 10:41:14 a.m.. In fact, by 10:18:58 a.m. (see P72), Mr Reshad had made clear to the accused that he was “Ready , when you guys are”.

352    The facts certainly did not gel with the accused’s belated claim that he needed to do price discovery for half an hour between 10 a.m. and 10.30 a.m. In this regard, as highlighted by the Prosecution, this claim of the accused was only brought up at the trial during the accused’s cross-examination. The accused also did not raise this claim of price discovery in any of his investigative statements to the MAS.[note: 244]

353    Nor does the claim explain why the accused had to ask for bids from at least 11 counterparties, especially if he had genuine concerns that there would be perceptions of a fire sale or dumping of the SP1 assets, a fear which he claimed was on his mind. As regards the latter concern, it was the accused himself who had pointed out that counterparties “will start to chat [and] speculate among themselves”,[note: 245] and yet he engaged so many of them, who would the speculate on why the accused was even sounding so many of them out. The accused’s actions were especially unfathomable when one considered that it was the accused himself who claimed that the norm was for only “two to three counterparties” to be engaged.[note: 246]

354    The Prosecution thus suggested that the irresistible inference from these facts, and the fact that the accused did not sell at the higher executable prices when they were clearly available for him to trade, must be because the accused was actually utilising the time between 10 a.m. and 10.30 a.m. to fish and search for lower prices as reference points to conduct the passthrough trades. The Defence countered that this suggestion of the Prosecution was “an absurd and far-fetched submission to make”, and argued that this was also not a position the Prosecution had previously advocated.

355    As regards the Prosecution’s arguments on this issue, I noted that:

(a)     With the exception of the accused’s own evidence, there was no independent evidence to show that the accused had even set aside 30 minutes (from 10:00 to 10:30 am) for purposes of price discovery.

(b)     For one, neither Mr Reshad nor Mr Lai testified about this alleged plan of the accused to set aside 30 minutes for price discovery as a prelude to the sale of the bonds. Yet both of them would presumably have been kept in the loop about such a plan (if there was one) since both Mr Reshad and Mr Lai were allegedly integral parties in the plan to liquidate the assets of SP1.

(c)     Nor was there any documentation produced to show that there was such a plan.[note: 247] Yet, the accused was the one who agreed it was “very important [to] keep everything documented” during a liquidation process.[note: 248] In fact, the evidence of Mr Goh, the CEO of OAIP was that he did not even know that SP5 would buy the MIE bonds from SP1, or that the accused had injected US$3 million into SP5 for that purpose,[note: 249] essentially as part of the passthrough plan.

(d)     Further, as highlighted by the Prosecution, it was not put to Mr Reshad that at 10.18:58 a.m. (when Mr Reshad alerted the accused that he was “ready [to trade] when you guys are”) or even before, that the accused had given Mr Reshad the Haitong’s prices (which Mr Ray Xie of Haitong had informed the accused at 10:08: 50 a.m.) as market context for the purpose of Mr Reshad doing price discovery for the MIE bonds.[note: 250]

356    In any event, the idea of carrying out price discovery for 30 minutes from 10.00 to 10.30 am, before initiating the passthrough plan of negotiating and selling the bonds from SP1 to Pareto, and then also negotiating and selling the bonds from Pareto to SP5, would mean that the entire passthrough process would extend beyond 10.30 a.m. Yet going by the accused’s evidence, he was supposed to have closed the trade by 10:30 a.m. before going off for his important meeting that was supposed to start at 10:30 a.m. [note: 251] I reproduce his testimony on this matter.

Q.    And then, after that, had you some more chats with SC Lowy before serial number 101, at 10:30:47, you stated the passthrough trade by giving that message to Mr Reshad. Can I ask you to explain again: why did you have 10.30 as a cut-off time, and why did you start this passthrough trade at this time?

A.    That morning, they -- I had a very important meeting at 10.30, so it was for a pretty big fund. It was a real estate fund that Mr Kelvin Goh and myself were directors of. The shareholders, the directors, the owners, there was a big group of people that came sometime at 10.30, even before 10.30. So the latest, at that point of time, was 10.30 because that was when the meeting started, so I wanted to give myself the maximum amount of time, which is 10.00 to 10.30, see what I could get off the markets, then quickly close the trade and jump into the meeting. So that's roughly why the time constraint I had at that time was 10.30.

[emphasis added]

357    Yet, the accused’s purported urgency that morning of 19 January 2016 to finish with the price discovery and then to transact the MIE bond before the 10.30 a.m. meeting started, was contradicted by the fact that he did not actually initiate the passthrough trade with Pareto until 10:41:14 a.m. Further, he continued his chats with Mr Reshad over matters related to MIE bonds all the way until 11:01:55 a.m. at least, even though the passthrough process completed at 10:44:57 a.m. with SP5 buying the MIE bonds (see P72). By 11:05:11 a.m., this would be long after that very important meeting (starting at 10:30 a.m.) would have begun.

358    Further, if indeed the accused was so busy and so concerned about attending the very important meeting (for matters related to the “pretty big fund” – see [356] above) at 10.30 a.m., and if indeed he wanted to “quickly close the trade and jump into the meeting”, the accused’s price discovery process for the MIE bonds would not have lasted all the way to 10:30 am, since he would then have no time to “close of the trade and jump into the meeting” before the meeting was to begin at 10:30 a.m. Neither would he have continued dealing with the MIE bonds after 10:30 a.m., or sent messages to Mr Reshad as late as 11:01:55 a.m. – see P15 and P72) about this transaction.

359    In short, all the evidence cast serious doubt on the accused’s claim that he had even set aside 30 minutes until 10:30 a.m. for price discovery, or that he was doing genuine price discovery during this time.

360    There were other unexplained and illogical aspects of the accused’s behaviour which made his claim about allegedly setting aside 30 minutes for himself to conduct price discovery even more dubious.

(a)     For one, there was no reason for the accused to have to carry out price discovery himself, or to even to have to personally deal with the sale of the MIE bonds himself, when he could have simply authorised or delegated Mr Lai to do this since the latter could do so if the accused permitted him to. Considering that the accused was supposedly very busy with personal and professional matters to deal with on the morning of 19 January 2016, it made no sense for him to have burdened himself with this task that Mr Lai (if authorised by the accused) could do.

(b)     As to why Mr Lai was not involved that morning, or even why he was not present during most of the interactions with the counterparties, despite being the only other portfolio manager and the person authorised to trade during the entire process (if the accused so permitted), these issues were never explained by the accused. In this regard, in contrast to the accused, Mr Lai clearly did not have as busy a schedule as the accused that morning. For example, Mr Lai apparently did not need to attend that “very important meeting” that was due to start at 10:30 a.m. that the accused was so concerned about. Also, Mr Lai apparently did not need to fly out of the country that day, nor did Mr Lai have a medical appointment to attend to, all of which were tasks that the accused allegedly had to perform within the short space of time on 19 January 2016, and yet have to engage 11 counterparties to sell the MIE bonds that morning.

(c)     Simply put, Mr Lai could have done everything that the accused did to effect the sale of the MIE bonds from SP1, without the time limitations and work/personal constraints and pressure that the accused claimed he was under. Most importantly, unlike the accused, Mr Lai would not have been in a situation of conflict even if the passthrough trade had been conducted by him from SP1 to SP5 via Pareto since Mr Lai DID not have any direct shareholding in SP5. This was in sharp contrast to the overwhelming direct shareholding in SP5 that the accused did on 19 January 2016 (at 94.1% - which does not even include his indirect shareholding of about 4.9% (see [519] – [520] below).

361    Further, as previously discussed:

(a)     Another rather inexplicable aspect of the entire transaction, which was never properly explained by the accused, was why he asked for bids from 11 counterparties, especially if he had concerns about perceptions of a fire sale or dumping. This was especially so when the expert evidence led suggested that there was only a need to engage three to five counterparties (see [66(b)] above), and the accused himself said that the norm was for only “two to three counterparties” to be engaged.[note: 252]. To engage 11 counterparties as the accused did on 19 January 2016, especially when he allegedly had so little time to properly deal with those who may come back with bids or queries, clearly made no sense.

(b)     In addition, it made no sense for the accused not to transact, follow up, or be aware (or so he claimed) of bids made by clearly interested counterparties such as Morgan Stanley, BNP or SC Lowy (in the case of MIE19). Instead, the accused went ahead with the passthrough trades using a bid that was “too low” (by the accused’s own admission), and even “old” (as stated by the Prosecution experts - being a bid given by Haitong at 10:08:58 a.m. (which Mr Ray Xie said were prices “for now”) when the passthrough only started at 10:41:14 a.m.

(c)     Indeed, since the market was very bad, and there was an urgency to sell the MIE bonds which the accused had labelled as toxic and difficult to sell, and since he was very busy that morning (with a very important meeting starting at 10.30 a.m. to attend), it was inconceivable that the accused did not sell the MIE bonds as soon as he received much higher executable bids than those offered by Haitong, if the accused was really seeking to fulfil his duty of selling at the highest available price. In this regard, having received the Morgan Stanely bids (“33 for MIE18”, and “32 for MIE 19”) compared to the much lower Haitong’s bids (“25 for MIE18”, and “20 for MIE 19”), the accused would logically have acted on the Morgan Stanley bids to sell to them, or used them as the market context for the passthrough trades, if he was genuinely interested to sell the bonds at the highest available price for the benefit of the SP1 investors.

(d)     Further, even if the accused had not acted on the much higher Morgan Stanley bids after he received SC Lowy’s bid for the MIE19 bonds (“28.5 for MIE 19”), he should have sold the MIE19 bonds to SC Lowy or used that as market context, since that price was still significantly higher than what Haitong had offered for the MIE19 bonds. Yet the accused eventually used the much lower Haitong prices as market context for his passthrough trades for the MIE19 bonds from SP1 to SP5.

(e)     For the BNP bid, the accused should also have been actively looking out for the bids from Ms Tsang since he was clearly aware of BNP’s interest in the bonds. Yet he totally ignored her (also) much higher bids, this time for the MIE bonds as well as the Indika bonds, despite Ms Tsang specifically drawing his attention to her interest and her bids.

362    All in all, there were many reasons to support the Prosecution’s argument that it was highly doubtful that the accused had even set aside 30 minutes from 10 -10:30 a.m. to conduct price discovery or, if he did do so, to show that he never conducted genuine price discovery during this period.

363    Instead, if at all the accused was genuine in trying to sell the MIE bonds at the highest available price, he would have done so by accepting the bids from Morgan Stanley (or even the bids from SC Lowy or BNP) before the time he finally executed the passthrough trades by selling the MIE bonds at much reduced prices to SP5 (of which he had 94.1% direct shareholding in - see also [519] – [520] below)).

(III)   THE ACCUSED’S TRUE INTENTION WAS ALWAYS TO PASSTHROUGH THE MIE BONDS TO SP5

364    The Prosecution argued that the accused had intended to use SP5 to buy the MIE bonds from SP1 at the outset.

365    To support its argument, the Prosecution pointed to the investigation statement recorded from the accused on 6 February 2018 (P82), where the accused admitted that he had intended to use SP5 to purchase the MIE bonds even before Haitong provided its bid at 10:08:50 a.m. [note: 253]

Q671

… when did you confirm that SP5 has to be activated as a backup to buy the 2 [MIE] bonds?

A

On 19 January 2016 itself, before I had the Bloomberg conversation with Haitong.

Q672

You already decided and told yourself that SP5 will need to be activated for the cross trades before having the Bloomberg conversation with Haitong?

A

Yes

[emphasis added]



366    When confronted with his statement during cross-examination, the accused attempted to distance himself from the answer given in his statement by arguing that he had a different understanding of “activate”: [note: 254]

A    So my understanding of "activate" here was, as I've said earlier, in the early part of 10 o'clock, when I saw the other brokers' responses, it was before Haitong's Bloomberg. So that was my understanding that when was the thought, when was it activated? So -- and earlier on, I said as well that that was a time I said there is a possibility we will activate this SP5.

…

A    …The timing is, as I said, after I saw the brokers, before Haitong, I thought of using SP5. That was when I thought that we will activate this backup plan, because the responses were quite bad from the brokers in general.

367    The Prosecution argued that the accused’s explanation contradicted what he said in his statement (P82), and was also internally inconsistent. Clearly, the accused had changed his explanation in court of “activate” to “possibility we will activate” and “thought of using SP5”, from his earlier version in his statement where he had said that he “will activate this backup plan” even before his conversation with Haitong. Clearly, the account given by the accused in court had changed from what he said earlier in P82.

368    Further, the accused could not even say what his precise plan was that morning of 19 January 2016, in particular, whether his intention was to sell the MIE bonds to the market or not. Instead, he resorted to giving answers like he would sell the MIE bonds to the market if the prices were “fairly high”, and yet not be able to say what was “fairly high”, except that Haitong’s prices were “fairly low”. The Prosecution thus submitted that the simple reason for the accused’s inability to explain the inconsistent and incoherent position he took in court was because the truth was contained in what he earlier said in his statement P82 i.e. that he had intended to use SP5 to purchase the MIE bonds even before Haitong provided its bid at 10:08:50 a.m.

369    The Prosecution also pointed out that the accused had indicated in P82 that he decided to activate SP5 to buy the bonds before his Bloomberg conversation with Haitong because he liked the MIE bonds, and not because he wanted to see how the market reacted to his blast messages seeking bids. This could be seen from his answer given to the CAD in P82:

Q679

Can we [understand] your thinking at that time, on why did you not sell the bonds to Haitong but rather take them on yourself into SP5?

A

I was OK to take on the Miehol bonds at a slightly higher price than what Haitong quoted, because I like the bonds.

[emphasis added]



370    In response, the Defence argued that the accused had made it clear that he intended to use SP5 to purchase the MIE bonds only as a backup if there were no buyers in the market and that “…if there were buyers in the market, we will sell it to the market, if not, then we will do the cross trade.” (see answer to Q599). Further, the accused had stated that the backup plan would be used “If I cannot sell the bonds in the market.” (see answer to Q607). The accused had further mentioned that he had asked Haitong for a quote because there was a possibility of selling to them, but that he had decided not to sell because the price that was bided was “too low” (see answers to Q673 – 675).

371    All in all, the Defence argued that there was no inconsistency with the accused’s testimony at trial from his earlier statement, in that he only decided at 10:30 a.m. on 19 January 2016 that the passthrough trades should be conducted. Moreover, the Defence argued that it was not surprising that the accused could not confirm how “fairly high” a bid would have to be for him to sell the MIE bonds to the market, as the situation was dynamic. The Defence also insisted that “the decision to do the passthrough had nothing to do with [the accused] “wanting” the bonds”.[note: 255]

372    Having carefully evaluated the evidence, I was unable to accept the Defence’s position.

(a)     For one, the accused had said he would sell the bonds to the market if there were buyers and would activate the passthrough as a backup only if he could not sell to the market. Yet, while he agreed that there was (at least) one potential buyer i.e. Haitong that had actually made a bid that he was aware of, he declined to sell to Haitong.

(b)     Instead, he went ahead with the passthrough trades effectively to sell the MIE bonds to a sub-fund, SP5, in which he was the overwhelming majority shareholder, and he did so despite recognising the possible conflict of interest concerns.

(c)     Further, he sold the bonds from SP1 to SP5 at 25.375 for MIE18, and 21.875 despite the prices being offered to SP1 for the bonds being only slightly more than the price of 25 for MIE18, and 20 for MIE19, offered by Haitong, which were the very prices that he claimed were “too low”. In so doing, he disregarded much higher prices offered by other counterparties, which he declined to use because they were allegedly not available, he was not aware of them, or they allegedly didn’t fit into his trading strategy, all of which were claims that were not consistent with the evidence discussed.

(d)     Specifically, on 19 January 2016 between 10:00 – 10:30 a.m., which the accused said was the price discovery period that he (in court) said he had set aside, it was undisputed that significantly higher prices for the MIE bonds were offered by Morgan Stanley, BNP and Lowy for either one, two, or all three of the bonds being marketed by the accused for sale. Yet, the accused did not sell the bonds to any of these counterparties, but instead pass through the MIE bonds to a fund in which he was the overwhelming majority shareholder of, thus disregarding the much higher bids by the counterparties. He personally gained in this process, just as the SP1 investors suffered losses as a result.

373    Further, I noted that the accused had repeatedly answered in his investigation statements that he had to see the size and the word “firm” in a bid before he would transact. However, his actions showed that he acted otherwise.

(a)     In the case of Mr Reshad’s bids made to SP1 as part of the passthrough trade, these bids did not contain the size. And Mr Reshad’s subsequent offer to SP5 (after Mr Reshad had succeeded in buying the MIE bonds from SP1 at the low price) neither contained the size nor the word “firm”, and yet the accused carried out the transactions.

(b)     In addition, it should be noted that even Haitong’s bids did not have the word “firm”. Yet the accused took Haitong’s bids to be valid and executable.

(c)     While the accused attempted to explain that the above answers he gave in his investigation statements were referring to a “gold standard”, I agreed that no such “qualifier” or “clarification” (that his answers were referring to a “good standard” only) appeared in his statements. In other words, what the accused said in court, was not what he stated in his statements.

374    Separately, the Prosecution also highlighted that while the accused claimed that he was in a rush to sell the MIE bonds within a short window in the morning of 19 January 2016 (supposedly before his meeting of 10:30 a.m.), his claim was not credible.

(a)     For one, the accused had ample time to liquidate the assets prior to 19 January 2016, as SCL had indicated its intention to redeem its investment in SP1 on 15 December 2015, and had also sent the signed redemption form via email on 28 December 2015[note: 256] which the accused saw.[note: 257]

(b)     Further, there was evidence from Mr Lai that the liquidation process had started much earlier from the sale of the first bonds in SP1, which were the Jingrui bonds. The latter were sold before 6 January 2016 and Mr Lai testified that this sale was for the purpose of meeting the redemption of Stafford Capital. Mr Lai’s evidence on this point was not challenged by the Defence.

(c)     As such, the accused had sufficient time prior to 19 January 2016 to sell the assets, including the MIE bonds, and there was no need for him to have insisted on selling the MIE bonds in the very short window in the morning of 19 January 2016. Even if he had insisted on doing so, he should have sold them to Morgan Stanley, or at least sold the MIE19 bond to SC Lowy, when bids from both these counterparties were known by him and when these bids were clearly executable.

(d)     As further highlighted earlier (see [336] – [342] above), he could also have sold them to BNP which was offering significantly higher prices than the prices he eventually used for the passthrough trades, especially as BNP had made the effort to draw his attention to their bids and clearly indicated its continued interest in the bonds the accused was allegedly so desperate to sell.

375    All in all, I found credence in the Prosecution’s argument that the accused decided to use SP5 to buy the MIE bonds because he liked them. Thus, he never engaged in genuine price discovery before he finally carried out the passthrough trades by selling the MIE bonds from SP1 to SP5 at what was clearly not the “highest available price” on the morning of 19 January 2016.

(B)   The accused never intended to do genuine price discovery through Mr Reshad

376    The Prosecution argued that the evidence showed that the accused never intended to do genuine price discovery through Mr Reshad. Essentially, based on Mr Reshad’s and the accused’s answers in court, it was highlighted that Mr Reshad was not challenged on important aspects of his evidence where he said that his role was only to facilitate the passthrough and that there was no discussion (or reason for him) to do any price discovery before the passthrough trades took place.

377    Further, the circumstances of the accused’s interactions with Mr Reshad, before and during the passthrough process (as evidenced by the chat logs (see P72), and also a transcript of their phone message exchanged between them (P55)), and also the behaviour of the accused when acting for both SP1 and SP5 in the passthrough trades, led to the obvious conclusion that Mr Reshad’s role was never to do his own independent price discovery.

378    In response, the Defence submitted that the accused had wrongly assumed that Mr Reshad would do his own price discovery checks to ensure that the passthrough trade prices for the MIE bonds were fair and that such an assumption itself was reasonable as Pareto was a capital markets services licence holder that is regulated and monitored by MAS. Hence, the Defence argued that Pareto would have its own compliance functions and would comply with such compliance and other regulatory requirements without needing to be instructed by a third-party trader to do so. Further, the Defence argued that assuming that the accused had spoken to Mr Reshad closer to 10:08 a.m. on 19 January 2016, this would have given Mr Reshad effectively more than 30 minutes to do price discovery, between 10:08 a.m. and 10:41:14 a.m., before the MIE bonds were sold by SP1 to Pareto. [note: 258]

379    Having carefully evaluated the evidence, I agreed with the Prosecution that the accused never intended for Pareto to do independent price discovery, or even assumed that Pareto would do so. I elaborate below.

380     First, I agree with the Prosecution that the accused’s claim that he trusted or believed that Mr Reshad of Pareto would do price discovery before executing the passthrough trades was unsubstantiated. In this regard, the accused conceded that he did not instruct Mr Reshad to do price discovery for the MIE bonds, nor was there any written communication or documentation to Mr Reshad telling him to do price discovery based on Haitong’s bid prices.

381    In addition, as pointed out by the Prosecution, while the accused claimed that sometime around or before 10:18 a.m. on 19 January 2016, he had given Haitong prices for the MIE bonds to Mr Reshad with the expectation that Mr Reshad was to do price discovery,[note: 259] this claim was plainly inconsistent with the evidence of Mr Reshad that his involvement, prior to conducting the passthrough trades, was non-existent. Further, such a claim of the accused by the Defence was never put to Mr Reshad in cross-examination.

382     Second, I note that Mr Reshad was only told by the accused that Pareto’s role was to facilitate the passthrough trades. [note: 260] For doing this, Mr Reshad would earn the agreed spread. Essentially, the accused agreed that he, acting for SP5, would give Mr Reshad the price that he would buy the MIE bonds from SP1 and then Mr Reshad, as the intermediary, would just make the bid to SP1 accordingly after factoring in Mr Reshad’s own spread. The evidence from the accused during his cross-examination by the Prosecution was as follows:[note: 261]

Q:    Do you agree with me that this message from Mr Reshad when he said he could buy from you at those prices was an immediate, almost immediate response, after you had told him in the side one-on-one chat that you could pay 25 and 22 for the MIE 18 and MIE 19 respectively?

A:    That’s correct.

Q:    And you recall also that we have established that prior to the passthrough trade, the spread that Mr Reshad was to get for the passthrough trades was agreed and it was 0.125, right?

A:    That’s correct.

Q:    So what Mr Reshad, by his message at 10:37:27 in the group chat in giving you prices he could buy for the MIE 18 and MIE 19s, do you agree that he subtracted your prices you gave to him you could buy from SP5, the spread, and then he gave you the prices?

A:    It looks like it.

Q:    Therefore, can I ask you again to confirm, as far as Mr Reshad’s bids he gave to you at 10:37:27 in the group chat, that was given to you after you had given to him the prices you would buy – you could buy for SP5 of the MIE 18 and MIE 19 bonds of the amounts 25 and 22 respectively?

A:    That’s correct.

383    In essence, Mr Reshad’s role was simply to mechanically subtract his spread from the price offered by the accused (acting for the buyer SP5) and make that “adjusted bid” back to the accused himself (now acting for the seller SP1). All these “bids”/”offers” were done over separate chats albeit between the same two humans (the accused and Mr Reshad). They would nonetheless have given external parties the impression that these transactions were being conducted among three different parties i.e. SP1, Pareto and SP5, when in fact, the only two humans involved were Mr Reshad and the accused.

384    It was noteworthy that despite having been involved in other passthrough trades before, Mr Reshad testified that he does not know why – in this particular transaction - the accused had even started the additional one-on-one chat to carry out the passthrough trades, as Mr Reshad had simply expected the instructions for the buying and selling of the MIE bonds to have taken place by way of the single group chat.[note: 262]

385    The Prosecution also pointed out that the accused’s claims that he had expected Mr Reshad to do price discovery and that he had given Mr Reshad Haitong’s bid prices for this purpose, were also inconsistent with P55, the transcript of the conversation between the accused and Mr Reshad. This conversation had taken place before 19 January 2016. I reproduce P55 below (with the accused being speaker A, and Mr Reshad being speaker B).

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386    From P55 above, it could be seen that Mr Reshad had said to the accused “… I just want to let you know the accounts are all set up. If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great.” (emphasis added).

387    In court, when asked to comment on P55, Mr Reshad testified that:

(a)     The word “transfer” in P55 referred to the passthrough trades that he was to help facilitate.

(b)     As for his words “just let me know the price” Mr Reshad explained that he said them because his role was simply to facilitate a straightforward execution of the passthrough trades.

(c)     Further, Mr Reshad had totally leaned on the accused’s judgment for the price of the passthrough trades when he asked the accused “What is the price at which you want me to do this?”

(d)     Following Mr Reshad’s words to the accused, the latter clearly understood the limited extent of Mr Reshad’s role when he replied to Mr Reshad: “Okay, I’ll definitely give you a spread. I’ll let you know. Okay?”

388    Thus, it was clear from the conversation recorded in P55 between the accused and Mr Reshad, that the latter’s role was intended by both parties to be very passive and very limited. In essence, Mr Reshad was completely relying on the accused to give him the information (“the price”, and “the amount”) to carry out the passthrough trades, and his chief concern was only about getting a spread. This, the accused assured Mr Reshad that he would get i.e. that he would definitely give Mr Reshad a spread. There was certainly no indication, or expectation, that Mr Reshad would carry out any price discovery for the MIE bonds.

389    Instead, it was obvious from P55 that what the accused expected of Mr Reshad in the passthrough trades, for which Mr Reshad would be rewarded with a spread, was to carry the passthrough trades at the price and of the amount that the accused was to inform him. Thus, contrary to the accused’s claims in court, there was no evidence presented which would indicate that Mr Reshad was to do anything else (such as independent price discovery), or that Mr Reshad would be rewarded or remunerated for doing anything other than effect the transfer of the number of bonds at the prices that the accused informed him of.

390    I further noted that in cross-examination by the Defence, Mr Reshad was not challenged on P55 or the explanations he had given on its contents. I agreed with the Prosecution that P55 thus provided further evidence that, contrary to the accused’s claims in court, the accused never expected Mr Reshad to carry out independent price discovery before the passthrough trades were effected.

391     Third, as pointed out by the Prosecution, for the entire passthrough transaction, Mr Reshad did not assume any risk in executing the trades,[note: 263] and his role was simply to take the price offered by the accused for SP5.

(a)     As Mr Reshad would have earned the agreed spread regardless of the prices offered to SP1 for the MIE bonds, objectively, there was no impetus for him to have conducted any price discovery.

(b)     In a similar vein, the Prosecution pointed out that before appointing Mr Reshad as the intermediary in the passthrough trades, the accused had in fact had a separate conversation (see P3) with another potential intermediary, Mr Thomas Kong of Huatai. At that time, the accused was apparently considering using Mr Thomas Kong (rather than Mr Reshad) to carry out the passthrough trades. In his conversation with Mr Thomas Kong on 18 January 2016, the accused had stated that the role Mr Kong would play in the passthrough trades was one where the latter would get “free money”. Clearly, this meant that Mr Thomas Kong would get a spread if he carried out the passthrough trades and would not have to take any risks, nor be expected to do anything more.[note: 264] It could be clearly inferred that the same “passive role” was what the accused expected from Mr Reshad when the latter was finally appointed to carry out the passthrough trades.

392     Fourth, I accepted the Prosecution’s argument that there was no basis for the accused to have truly expected Mr Reshad to carry out price discovery for the MIE bonds, as these were not even bonds issued by Pareto.

(a)     In this regard, Mr Reshad’s unequivocal evidence was that he had no obligation to do price discovery. Instead, Mr Reshad understood this to be a straightforward transaction where he was to be in the intermediary, and he would just take a spread. He was not expected to do price discovery for the MIE bonds because he was simply not familiar with these bonds as these were not issued by Pareto.

(b)     Further, Mr Reshad testified that he leaned fully on the accused for the prices to be used for the passthrough trades. Mr Reshad saw the passthrough trades as an “extremely transactional, straightforward thing to do” and he did not scrutinise or think that he had to scrutinise the transactions. Indeed, Mr Reshad testified that there was no discussion about selling (or showing) the bonds to the market – his role was simply to pass through the bonds from one sub-fund (SP1) to another related sub-fund (SP5). In Mr Reshad’s words:[note: 265]

Again, it’s – it wasn’t even a consideration to look for buyers and sellers. This was a passthrough so I wasn’t even engaging clients or the market to be able to do this transaction.”

[emphasis added]

(c)      As rightly pointed out by the Prosecution, Mr Reshad’s evidence on these matters was all unchallenged during Mr Reshad’s cross-examination.

(d)     It should further be noted that. Mr Reshad was never told that the accused was the major shareholder of the fund SP5 that was going to buy the MIE bonds from the related fund SP1. In addition, in the main chat between the accused and Mr Reshad at 10.18:58 a.m., Mr Reshad sent a message to the accused to say: “Ready when you guys are.” So, clearly, by that time (10.18:58 a.m.), everything was set up in the sense that the passthrough trades were going to take place. Simply put, Mr Reshad was ready to do the passthrough trades and he was just waiting for the accused’s instructions to carry them out. There was nothing further for him to do but to act on the accused’s instructions, and to transact the amounts of bonds at the prices provided by the accused.

(e)     I would add that Mr Reshad’s unqualified message to the accused at 10:18:58 a.m. (“Ready when you guys are.”) also strongly suggested that it was always the understanding between him and the accused that the passthrough trades would definitely take place that day, and Mr Reshad was just waiting for the accused to give him the go ahead. In this regard, there was nothing to suggest that the accused only intended to use the passthrough as a backup plan and that his intention (or first choice) was to sell the bonds to a counterparty in the market.

393     Fifth, I do not accept the Defence’s argument that it was reasonable for the accused to have assumed that Mr Reshad/Pareto would conduct his/its own price discovery, even if the accused did not explicitly inform them to do so.

(a)     In this regard, the Defence argued that the accused thought that because Pareto was a CMS licence holder, which was regulated and monitored by the MAS, Pareto would conduct some form of price discovery for any passthrough trader.[note: 266] Further, the Defence argued that this was not an unreasonable view to hold since, as Mr Cheong had testified, Pareto had certain regulatory obligations and compliance functions to ensure that the required regulations were upheld, such as not being involved in fraud, money laundering, or market manipulation.

(b)     However, there was no actual evidence led by the Defence that such an obligation to carry out separate price discovery even existed in such a scenario just because Pareto was a CMS licence holder. [note: 267]Neither was there any actual evidence produced as to why the accused would even have made such an assumption about Mr Reshad/Pareto’s alleged obligation to check in such a scenario, or whether such an assumption (if really held by the accused) was even reasonable.

(c)     In particular, I noted that no evidence was led through the questioning of Mr Reshad by the Defence, nor evidence given by the accused himself, about the role, duties or responsibilities of a CMS holder in situations of passthrough trades, especially where they involve parties where there was an obvious conflict of interest as was the case here.[note: 268]

(d)     Further, while it was not disputed that Pareto had certain regulatory obligations and compliance functions to ensure that the required regulations were upheld, such as not being involved in fraud, money laundering, or market manipulation, this was quite different from saying that Pareto or Mr Reshad had to, or should, conduct their own price discovery in a passthrough trades situation. In other words, the Defence’s argument simply has no evidential basis to support it.

(e)     I would add that in this case, where the accused did not even make known his majority interest in SP5 to Mr Reshad, it cannot be said that Mr Reshad would have suspected, let alone have been aware of any possible impropriety or illegality, to make him scrutinise the transaction more carefully, or to make him feel the need to conduct an independent price discovery just because Pareto was a CMS licence holder.

(f)      In short, there was nothing put forward by the accused or by the Defence, in general, to substantiate their argument that just because Pareto was a CMS holder, the accused would, or did really, believe that Mr Reshad/Pareto would conduct their own price discovery process, independent of what the accused himself was already supposedly doing when he engaged the 11 counterparties. In fact, since the accused was already engaging so many more counterparties than he needed to for bids (see [353] and [361(a)], if Mr Reshad were to do the same, it would conceivably have made it even more likely that the market would perceive that there was dumping or fire sale of the MIE bonds, which would have depressed their prices even further.

394     Sixth, the Defence sought to rely on the chatlogs in D33, which were chats conducted between Mr Reshad and Mr Lai, to argue that in conducting MIE18 and MIE19 trades through Mr Reshad of Pareto, it was reasonable for the accused to have expected Pareto to assist to safeguard and check on the transactions.[note: 269] In this regard, the Defence highlighted the mention made by Mr Reshad in D33 that he was “checking on buyers”.[note: 270] This, the Defence suggested, showed that Mr Reshad had such a role to play when he was interacting with OAIP. The relevant extract in D33 is reproduced below.

Mr Lai:

show me a bid for 1m PSALM 24, 2m NTPCIN 24 or 2m STATS 20

Mr Reshad:

Okie checking on buyers. Let me come back.



395    However, with respect, I agreed with the Prosecution that the Defence’s argument – based on the above extract - was illogical.

(a)     For one, the chat cited by the Defence was dated 22 January 2016. This was after the impugned MIE18 and MIE19 passthrough trades had taken place (on 19 January 2016). Thus, this chat in D33 could not have formed a proper basis for the purported expectations the accused had of Mr Reshad and Pareto when the accused effected the passthrough trades on the earlier date of 19 January 2016. In other words, the accused could not have assumed on 19 January 2016 that Mr Reshad would do his own independent checks, based on what Mr Reshad would say three days later on 22 January 2016 in D33. Simply put, it was clear that on 19 January 2016, the accused would not have known what Mr Reshad would say or do three days later on 22 January 2016, and his actions on 19 January 2016 could not have been based on things that hadn’t yet happened, and which the accused won’t have known about when he carried out the passthrough trades.

(b)     Next, the character and identity of the bonds referred to in the chat in D33 were clearly different from the MIE bonds.

(i)       In this regard, the transactions that the Defence referred to in D33 involved other bonds and not MIE bonds.

(ii)       It was also unclear whether the bonds referred to in D33 were bonds previously placed by Pareto, or if those bonds had any other connection with Pareto (unlike the MIE bonds which clearly did not). It would be recalled that Mr Reshad had said that how Pareto deals with bonds depended on whether they were bonds issued by Pareto, or bonds not issued by Pareto. Thus, without any information on what kinds of bonds were dealt with between Mr Reshad and Mr Lai on 22 January 2016, it could not be ascertained why Mr Reshad dealt with these bonds differently on 22 January 2016 from how he dealt with the MIE bonds on 19 January 2016.

(c)     Further, the discussion in D33 related to a potential request made by Mr Lai to Mr Reshad to seek bids for those other bonds.

(i)       In this regard, there was no evidence on the face of D33 to show that the accused (or Mr Lai) in that chat intended to be both the buyer and the seller. Simply put, there was nothing to show that the discussion in D33 on 22 January 2016 even related to a passthrough trade scenario which was the scenario involving the MIE bonds on 19 January 2016.

(ii)       Instead, if the 22 January 2016 transaction was not a passthrough trade, it would be entirely logical for Mr Reshad to source for a buyer if Mr Lai or the accused was seeking Mr Reshad’s help to sell the bonds, and Mr Lai/the accused did not intend to hold on to the bonds thereafter.

(iii)       In short, what appears to be the scenario in D33 could well have been markedly different from the scenario involving the MIE trades transacted via the passthrough trade mechanism on 19 January 2016, where the accused was both selling the bonds for SP1 and then re-buying the bonds for SP5. The latter would have given Mr Reshad no impetus to source for external buyers, quite unlike a situation involving a non-passthrough trade.[note: 271]

(d)     Finally, and most importantly on this point, neither Mr Lai nor Mr Reshad was cross-examined on D33 and neither of their explanations on D33 was even obtained. On that basis, it was not possible to determine how similar (or dissimilar) the transaction in D33 on 22 January 2016 was with the passthrough trades involving the MIE bonds on 19 January 2026. Thus, the transaction in D33 may well have been a completely irrelevant and inappropriate comparison with the passthrough trades for the MIE bonds on 19 January 2016, which were the subject matter of this case.

(e)      In short, the transaction reflected in D33 was a red herring and D33 was of no assistance to the Defence.

396     Seventh, the Prosecution pointed out that based on the accused’s claim that he had expected Mr Reshad to carry out independent price discovery, Mr Reshad would have had only 10 minutes to carry this out. The inference would thus be that the accused actually did not contemplate Mr Reshad doing any genuine price discovery on 19 January 2016 before the passthrough trades were carried out. The accused’s answers on this issue are instructive.

Court:

How much time did you give [Mr Reshad] to do price discovery?

…

Court:

So about 10 minutes, is that what you’re saying? [10.08 to 10.18], is that what you’re saying?

A:

Yes, between the 10.08 and 10.18 is when I spoke to Mr Reshad.



397    In its submissions, the Defence argued that “(a)ssuming that [the accused] had spoken to Mr Reshad closer to 10:08 a.m., this would have given Mr Reshad effectively more than around 30 minutes to do price discovery, between 10:08 a.m. and 10:41 am, when the MIE bonds were sold by SP1 to Pareto”.[note: 272] However, this claim of the Defence – that there were 30 minutes for Mr Reshad to do price discovery - was not what was stated in the accused’s evidence. Further, Mr Reshad did not testify to this, nor did the Defence put to him that Haitong’s prices were given to him even before 10.18:58 a.m. for the purpose of doing price discovery.

398     Notably, when Mr Reshad first messaged the accused on the Bloomberg chat at 10:18:58 a.m. (see P72), there was no mention by Mr Reshad that he had received the Haitong prices earlier than 10:18 a.m., or that he would conduct, or was in the process of conducting, price discovery.

399    Instead, Mr Reshad’s message to the accused was simply “Ready when you guys are”. Clearly, this meant that Mr Reshad was just waiting for instructions or directions from the accused to carry out the passthrough trades based on the “the price” and “the amount” indicated to him by the accused (see P55 – transcript of their earlier discussion). As stated earlier, there was no evidence that Mr Reshad was expected to do anything more.

400    Further, in the chats indicated at P72 exchanged between the accused and Mr Reshad on 19 January 2016, the accused never asked Mr Reshad anything about the latter’s efforts at carrying out any independent price discovery. Thus, all the available evidence refuted the accused’s claim that he ever expected Mr Reshad to carry out any independent price discovery.

401    In any event, if the Defence’s position was that Mr Reshad had (and should have) carried out price discovery all the way up to 10:41:14 a.m. before the accused said “done” to accept the bid from Mr Reshad, then the accused similarly should have carried out his own price discovery all the way up to 10:41:14 a.m., and be open to higher bid prices before he concluded the passthrough trades at that time.

402    Yet when Ms Pamala Tsang of BNP posted her significantly higher bid prices for the MIE bonds at 10:22:17 a.m. (see [336] above), and even rang the bell to catch the accused’s attention at 10:40:31 a.m., the accused did not acknowledge her bids, let alone consider them. He should certainly have done so and possibly sold the MIE bonds to her as her bid prices were significantly higher than the prices he himself was about to use for the passthrough trades. Alternatively, he could have simply used BNP’s higher prices for the passthrough trades.

403    Indeed, there was no reason for the accused not to have done so since Ms Pamela Tsang was the only counterparty offering bids for all the three bonds that he was seeking to sell. Thus, rather than using the prices that he did for the passthrough trades, the accused could have (and should have) accepted her bids if he was really seeking to sell the MIE bonds at the highest available price, especially if he was trying to sell all three bonds. Moreover, since these prices had been given to the accused during the price discovery period (which the Defence suggested extended all the way until 10.41:14 a.m.), there was certainly no basis for the accused to have ignored them, and for him to have gone ahead with the passthrough trades instead.

404     Eighth, if the accused genuinely intended for Mr Reshad to do price discovery, he should at least have (but did not) give Mr Reshad the bid price provided by SC Lowy as the market context for the MIE19 bonds, since there was no doubt that he knew that SC Lowy bid (at US 28.5 cents) was significantly higher than Haitong’s bid (at US 20 cents) for the MIE19 bond. Further, the accused knew that the prices from SC Lowy were executable.

405    The accused, however, claimed that he did not want to rely on SC Lowy’s bid because he wanted prices for the whole block and not just for the MIE19 bonds from SC Lowy. However, as highlighted above (see [334] – [335] above) this claim by the accused would be at the expense of the SP1 investors because they would clearly have obtained significantly more in sale proceeds for the MIE19 bond if SC Lowy’s bid had been used, especially a SC Lowy’s bid at US28.5 cents for 1.5 million of MIE19 would have netted SP1 investors a lot more than the passthrough price of US21.875 cents for 1.5 million of MIE19. It appears that this difference amounted to about US$99,375, which was the amount that the SP1 investors thus lost out on for the MIE19 bonds alone.

406    I agreed with the Prosecution that the fact that the accused did not use SC Lowy’s MIE19 bid price further discredited his claim that he was doing genuine price discovery because SC Lowy’s bid would have resulted in significantly higher sale proceeds for SP1 investors, even if the accused did not use either Morgan Stanley’s or BNP’s bids, which were also significantly higher than what SP5 paid for the MIE bonds via the passthrough. Instead, the benefits of the lower passthrough trade prices accrued to SP5, and thus befitted the accused the most, in light of his overwhelming interest and ownership of SP5.

407     Ninth, a perusal of the chats (P72) between the accused and Mr Reshad also makes it clear that the bid prices to SP1 for the MIE bonds came solely from the accused and not independently from Mr Reshad, or any other counterparty that Mr Reshad could purportedly have found by way of his own price discovery. The relevant portion of P72 below illustrates this point.

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408    The table demonstrates that the bid prices all came from the accused, who initiated the so-called price exchanges or “negotiations” between him and Mr Reshad at 10.30.47 a.m. and 10.31.17 a.m.

(a)     In this regard, the accused’s claim that Mr Reshad first gave him bid prices (at 10:37:27 a.m. in Chat B) for the MIE bonds and that these bids could have been after Mr Reshad conducted his own checks, was a complete non-starter because it could be seen that at 10:30:47 a.m. and 10:36:13 a.m. in Chat A, it was clearly the accused who had given bid prices to Mr Reshad for the MIE bonds that SP5 could buy these bonds.

(b)     Further, Mr Reshad testified that he arrived at the prices in his message of 10:37:27 a.m. by relying on the prices that the accused gave to him to make the bid, after deducting his own spread. The accused even unilaterally ‘improved’ SP5’s bid for the MIE18 bonds in his one-on-one chat at 10.39.55 a.m., before requesting an improvement from Mr Reshad in the other chat at 10.40.09 a.m. This, Mr Reshad promptly did, in response to the accused’s own corresponding improvement made only moments earlier in the other chat.

(c)     These series of “back-to-back” transactions, when placed side by side, suggested a sequence of staged bids/offers. While they may appear genuine to third parties who look at them in isolation, when put together, the chats clearly showed that the transactions of bids/offers for the MIE bonds were fully and solely controlled by the accused. It was clearly a case of the accused being the puppet master and pulling all the strings. Thus, any claim that the accused “negotiated” the prices (meaning that he genuinely sought to discuss the prices for the MIE18 and MIE19 bonds) with Mr Reshad was completely untenable, as Mr Reshad simply did what the accused told him to do.

(d)     As a clear illustration of the complete extent to which the accused controlled the entire process of buying the MIE bonds, the transactions relating to MIE18 between 10:39:55 a.m. and 10:40:53 a.m. were especially pertinent.

(i)       In this regard, Mr Reshad testified he “[did] not have an explanation” as to why the accused improved prices, “on behalf of SP5”, for the MIE18 bonds on his own (which the accused did at 10:39:59 a.m.)

(ii)       Nevertheless, immediately after the accused’s improved bid (made on behalf of SP5), and almost mechanically at 10:40:53 a.m., Mr Reshad simply repeated that bid to the accused (acting on behalf of SP1[note: 273]), allegedly because of SP1 request (made by the accused) for an improved bid.

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(e)     Further, as could be seen from the extract of P72 (see [407] above), the fact that Mr Reshad replied to the accused (acting on behalf of SP1) with the prices so quickly after the bids were made by the accused (acting on behalf of SP5) made it crystal clear that Mr Reshad did not carry out his own independent price discovery but relied solely on the accused (acting for SP5 as buyer) to make the “same offers” back to the accused (acting for SP1 as seller). This would have been obvious to the accused.

(f)     While the accused tried to explain that he gave Mr Reshad an opportunity to “challenge [his] price”, that explanation, when considered against the sequence of his chats with Mr Reshad, and Mr Reshad’s and the accused’s own evidence in court, was completely unconvincing.

(g)     Instead, the chats when put side by side, spoke volumes as to what was actually happening. In short, the accused was the sole party dictating prices to be sold by SP1, and the prices to be bought by SP5, regardless of the higher prices that were offered by the other interested parties such as Morgan Stanley, BNP and SC Lowy for the MIE bonds.

409     Finally, I would add that the evidence of Ms Low, one of the Prosecution’s expert witnesses, was also that it was not Pareto's duty to establish prices that were reasonable for the passthrough trades. Her explanations for this opinion, which I endorsed, bear repeating:[note: 274]

(a)     First, the fund or the fund's holders have no recourse to Pareto acting as an intermediary should it subsequently be determined that the passthrough trade prices were not reasonable.

(b)     Second, it was completely at the discretion and the decision of the fund manager to decide if the passthrough trades should occur, and at what prices.

(c)     Third, Pareto was not amongst the 11 counterparties asked by the accused to provide bids at 10.00 a.m. In her view, if Pareto was an active trader in the three bonds, Pareto should be amongst the 11 counterparties that the accused asked for bid prices at 10.00 am, but it wasn't.

410    All in all, I agreed with the Prosecution that the clear conclusion to be drawn from the overwhelming evidence, including documentary evidence, opinion evidence and evidence of the relevant witnesses such as Mr Reshad and the accused himself, was that the accused never expected Mr Reshad to carry out independent or genuine price discovery, or to verify that the prices that the accused was offering to SP1 for the MIE bonds were fair prices.

411    This was a very significant finding especially as the accused himself acknowledged that the main precaution that he allegedly implemented - to get around the conflict of interest situation that he admitted was present from his selling the MIE bonds from SP1 (which he held no direct shares) to SP5 (of which he was the clear majority shareholder) - was through Pareto carrying out genuine and independent price discovery.

412    Clearly, this alleged precaution was never truly implemented by the accused. Thus, there was nothing to stop the accused from abusing the trust reposed in him by the SP1 investors, and this in turn resulted in him carrying out the passthrough trades in a manner and at prices that he knew would cause loss to them and benefit to himself.

(3)    If the accused really intended to get the highest available bid prices, he would have checked Morgan Stanley’s bids

413    As stated earlier (see [290] – [303] above), there were extensive discussions between the accused and Ms Goyal of Morgan Stanley, both in the main chat (P4) and in the one-on-one chat that she initiated with him (P64) before the accused carried out the passthrough trades.

414    For convenience, I set out again the relevant excerpt of the discussion between the accused and Ms Goyal in the main chat (P64).

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes

[emphasis added]



415    The Prosecution highlighted that even if one believes the accused’s claim that at 10:15:21 a.m. and 10:15:29 a.m., he had posed questions to Ms Goyal about her bid because he was unsure that Morgan Stanley’s bids were executable, the accused should have checked back with Morgan Stanley as soon as he could if he was genuinely interested in obtaining the highest available bid prices for the MIE bonds. This was especially the case since the accused said that the market conditions at that time were “really bad”[note: 275] and the MIE bonds were the “most toxic”, [note: 276] and he wanted to sell the MIE bonds quickly.[note: 277]

416    Instead, while Ms Goyal had shown arguably the greatest interest in the MIE bonds, a fact that could not have been lost on the accused, the accused did not follow up with her on her interest, and he allegedly did not see her reply at 10:15:42 a.m., despite the fact that she replied to him almost immediately after he questioned her at 10:15:21 a.m. and 10:15:29 a.m.

417    The accused’s apparent lack of interest in her reply was particularly surprising when one considers that Ms Goyal was not only the first of the counterparties that he reached out to who expressed interest in the bonds, Ms Goyal had even unilaterally initiated the one-on-one chat with him about the bonds as early as 10:02:18 a.m. (see extracts of one-on-one chat below)

P64 (extract)– side chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:02:18 (01/19/2016 10:02:18 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

probably easier here given the noise on the main chat

01/18/2016 21:02:45(01/19/2016 10:02:45 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

ok

01/18/2016 21:08:07 (01/19/2016 10:08:07 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

assume nothing ?

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

ive put the bids there already

[emphasis added]



418    As seen from the extract of P64 above, Ms Goyal even nudged the accused for a response at 10:08:07 a.m. when she asked him “assume nothing” after he had failed to respond to her earlier bids. The accused clearly knew about her interest in the MIE bonds, when he finally replied to her at 10:08:53 a.m. to say that he needed a bid for the whole block and that this was to be her best bid. In P64, the accused at 10:09:02 a.m. then redirected her to use the main chat, to which Ms Goyal confirmed at 10:09:11 a.m. that she had posted her bids in the main chat already.

419    All the above messages, in the main chat and the one-on-one chat, pointed to the clear and unequivocal fact of Ms Goyal’s interest in the MIE bonds during the price discovery period. This was her interest in the same bonds that the accused was allegedly so desperate to sell that morning, and her bids were also a clear improvement of the “too low” bid that the accused had received from Haitong. There was thus a clear impetus for the accused to have paid close attention to her bids, and to have seen them as she posted them on the main chat as early as 10:01:24 am, and then reposted at 10:09:34 a.m. This was especially so when Ms Goyal specifically informed the accused at 10:09:11 a.m. in the side chat (P64) that she had posted her bids in the main chat, in response to the accused’s explicit request to her to “pls use the main chjat (sic)”.

420    Separately, I also noted that the accused’s attention to Ms Goyal’s bids and messages would also have been drawn by the fact that they would have been highlighted in the various chats when they were sent to him. In this regard, it should be noted that when Ms Goyal responded to the accused on the Bloomberg chats, even the accused admitted that this chat would have been highlighted in red (see D49).[note: 278]This fact was made clear when the accused was questioned by the DPP in court.

Q.    Right. No, I understand what you are trying to explain, but my further question then, is that if you scroll to where Morgan Stanley's group chat with you was in the left column, you would see, when you reach it, that that group chat would be red highlighted because she had sent a new message; a.m. I right?

A.    Yeah. Most likely, yes.

[emphasis added]

421    The Prosecution also submitted that even if one takes the accused’s claim – that he only saw Ms Goyal’s bids in the main chat at 10:15 am (and not earlier) - his reaction thereafter speaks for itself. At 10:15:42 a.m., it would have been clear to him that he had received reconfirmation of executable bids from Ms Goyal at prices much higher than those offered in Haitong’s bids. Yet, he claimed he did not to know this at that time because he was very busy.

422     However, since Ms Goyal’s response to his mass blast (and her repeated reminders to him about her bids) would have been highlighted, the accused’s attention would have been drawn to them and he would have responded if indeed he was genuinely interested in her reply, and in selling the bonds at the highest available prices. Thus, the clear inference to be drawn from the overwhelming evidence was that the accused would have seen her the Morgan Stanley bids, at the latest, when Ms Goyal responded to him at 10:15:42 a.m. to his direct queries.

423    If on the other hand, he did not see them, it must have been because he did not bother going back to the Morgan Stanley chat to check on her bids. If the latter was the case, the clear inference to be drawn was that he never intended to sell the MIE bonds to Morgan Stanley or to use its prices as a reference for the passthrough trades.

424    The Defence, however, argued that the accused did not check back with Morgan Stanley until sometime after 10:23 a.m., and that there was nothing to show that he was expected to do so before that time.

425    However, I found the accused’s claim that he only checked the main chat with Morgan Stanley after 10:23 a.m. to be difficult to believe, especially if he was really trying to get the highest available prices for the MIE bonds. As I have dealt with this issue extensively, I will just reiterate the main points below.

(a)     The accused claimed that he had wanted to sell the MIE bonds quickly because of the poor market conditions. Since Ms Goyal for Morgan Stanley had shown the greatest interest in the MIE bonds, by being the first to respond to show interest, being the first to respond with an executable bid, and also being the first to initiate a one-on-one chat with him to talk about her bids, he would have checked and confirmed the sale with her much earlier if he was genuinely trying to sell at the highest available price.

(b)     Further, at 10:08:53 am, the accused had specified to Ms Goyal in the one-on-one chat that he needed a bid for the whole block, which was to be her best bid, and further directed her at 10:09:02 a.m. to use the main chat for her bids. In response to his specific requests, she did all that he asked for, and confirmed to him only seconds later at 10:09:11 am, that she had posted her bids in the main chat already.

(c)     Specifically, Ms Goyal had posted and reposted the same executable bids at 10:01:24 a.m. and 10:09:29 a.m. respectively and this was done on the main chat which the accused had specifically directed her to post her bids. Ms Goyal further confirmed at 10:15:42 a.m. in the main chat that these bids were for the whole block, again in response to the accused’s queries posted at 10:15:21 a.m. and 10:15:28 a.m.

(d)     Each time that Ms Goyal posted her bids and sent messages to the accused, the chats were highlighted to draw the accused’s attention to the postings.

(e)      Thus, the accused would have seen Ms Goyal’s bids, at the very latest, shortly after she posted them, and by 10:15:42 a.m. at the latest.

426    In short, either the accused did check the main chat and found out about Ms Goyal’s executable (and much higher bid prices) by 10:15:42 am, or if he did not, it was because he was not interested in getting the highest available prices to sell the MIE bonds, despite his claims that this was always his aim.

(4)    If the accused intended to obtain the highest available bid prices, he would have checked back with Morgan Stanley even if he saw Ms Goyal’s “please refresh after trading” message

427    The Prosecution also suggested that because the accused had no intention to sell the MIE bonds to Morgan Stanley, this was why there was no reason for him to check back on the chats with Morgan Stanley especially after he started the chat with Mr Reshad at 10.19.14 a.m. for the passthrough trades. Accordingly, the accused did not even see the “please refresh before trading” message by Ms Goyal at 10:23:42 a.m. because by that time he had no interest in selling the MIE bonds to Morgan Stanley.

428    Alternatively, even if the accused saw the “please refresh before trading” message around the time that it was sent, he should have checked back with Ms Goyal as to whether her earlier bid prices were still valid. This was also the view of Ms Low, the expert witness, “given that Morgan Stanley had provided the highest prices up to the point”. [note: 279] In this regard, I agreed that if the accused really intended to obtain the highest available bid prices through price discovery, he would have checked back with Morgan Stanley especially as he purportedly set aside (at least) until 10.30 p.m. to do price discovery. The accused also conceded that there was nothing to stop him from going back to check with Ms Goyal on whether her bid prices were still the same.

429    I was thus of the view that the objective evidence showed that the accused would have been aware of the interest shown by Ms Goyal in the MIE bonds since she had responded very quickly to his request for bids, and she had even taken the trouble to initiate a separate one-on-one chat with the accused at 10:02:11 a.m., after specifically informing the accused that it was easier for them to discuss about the bids that Morgan Stanley was making. In court, the accused agreed that Ms Goyal did this as she wanted to get his attention.[note: 280]

430    To reiterate, the following conclusions could be drawn from the one-on-one chat (P64) and the main chat (P4) between the accused and Ms Goyal.

(a)     From P64, there was a whole series of exchanges between them which again showed Ms Goyal’s clear interest in the MIE bonds. For one, Ms Goyal had questioned the accused about his non-response when she asked him the question "assume nothing" at 10:08:07 a.m. after the accused did not respond to her earlier bids for the MIE bonds which she had posted only seven minutes earlier in the main chat (P4). Clearly pushed to give a reply to her when she asked him about this, the accused then told her that he “Need a bid for block”, and also told her that he wanted her best bid. He then specifically instructed her to "pls use the main chat". This, the accused claimed, was so that “the team and I can follow up.”[note: 281] Ms Goyal promptly and directly replied to the accused by telling him at 10:09:11 a.m. that "I've put the bids there already" hence directed his attention to her bids in the main chat.

(b)     As seen in P4 at 10:09:34 a.m., Ms Goyal reposted the same bid prices for the MIE bonds that she had made earlier at 10:01:24 a.m. At 10:15:42 a.m., Ms Goyal again promptly responded to further questions posed by the accused only seconds earlier, again showing her enthusiasm for the bonds. It was only at 10:23:42 a.m. that she posted the message “Wei, please refresh before trading”. (emphasis added)

(c)     When asked in court about this 10:23:42 a.m. message, Ms Goyal testified that she was not saying that Morgan Stanley could not buy the MIE bonds:[note: 282] She explained what she meant by the message.

A    Typically, prices can become stale after a certain time, so it is just a message to him saying -- it is not saying that I can't buy them anymore, it is just me saying that, "If you are still interested in trading, please just refresh the prices with me", because there could be news coming, there could be other reasons why the prices can move, and it's just like a disclaimer, saying, "Please just refresh. Don't come back to me minutes later, saying, 'I can sell you at those old prices.'"

[emphasis added]

(d)     Indeed, I agreed that Ms Goyal’s message posted at 10:23:42 a.m. did not indicate that her bid had been withdrawn, but that the accused should refresh them before trading. If anything, Ms Goyal’s message (which specifically included the words “before trading”) showed her continued interest in trading the MIE bonds with the accused. This invitation for him to refresh before trading was thus consistent with the interest she continually displayed in bidding for the MIE bonds.

431    The accused claimed that he saw this message from Ms Goyal (“please refresh before trading”) sometime between 10.23 a.m. and 10.30 a.m. The accused took the position that he had no obligation to check back with Ms Goyal on whether her earlier higher bid prices were still valid. The Defence also submitted that the experts never mentioned any requirement to refresh a bid in their expert reports and that it was stated in the report of one of the experts, Mr Cheong, that the accused need only sell “…at the highest bid amongst the bids that have been received from counter parties…” [emphasis added].[note: 283]

432    However, I did not agree with the arguments of the Defence.

(a)     While there was no specific written requirement that the accused had to check with Morgan Stanley in such a situation, this was not surprising as it was unreasonable and unrealistic to expect every single aspect of a portfolio manager’s role to be set out in minute detail; nor could every single scenario such as the “please refresh before trading” situation be planned for or envisaged beforehand.

(b)     Instead, guided by the duty he owes to the investors to seek the highest available price for the MIE bonds, and on the basis that the accused was supposed to be carrying out genuine price discovery and further, given that the Morgan Stanley prices were the highest of the prices that he had already received for bonds that he was allegedly desperate to sell, it was inconceivable that he would not have checked with Ms Goyal if he was indeed trying to get the highest available prices for the MIE bonds.

(c)     This was more so as the accused was still in the process of carrying out price discovery at that time and refreshing “before trading” was no different from seeking fresh bids from counterparties, which the accused was still actively engaging in at that time (see Annex A of DCS).

(d)     In such circumstances, and considering that Ms Goyal of Morgan Stanley had given the best bid so far, certainly much better than Haitong’s bids which the accused used for the passthrough trades, the accused would be expected to “refresh the bids” with her before trading with her, if he was genuinely seeking to sell at the highest available price. Indeed, as pointed out by the Prosecution, the accused himself admitted that Morgan Stanley was an important counterparty because they had shown him a bid. I reproduce the accused’s evidence on this point:[note: 284]

Q    And I recall your evidence previously also that you agreed with me that Morgan Stanley in that morning was an important counterparty, correct?

A:    Yes, I think in the sense that they have shown me a bid.

(e)     In short, as Morgan Stanley was one of only two (or three, if one includes SC Lowy’s bid for the MIE19 bonds alone) counterparties that the accused claimed to have known to have shown him executable bids, and even discounting BNP’s executable bid which the accused claimed not to have been aware of at that time, it was unbelievable for the accused not to have checked back with Morgan Stanley (which had given the highest bids that morning) before he carried out the passthrough trades if he was indeed genuinely trying to sell at the highest available price.

433    While the Defence took issue with the fact that the requirement to refresh before trading was not specified in the expert reports, having considered the testimonies of both Prosecution experts (the Defence having declined to call its own experts), I noted that the Prosecution experts’ evidence supported my finding that the accused should have checked with Ms Goyal on the bid after she had indicated to the accused to “please refresh, before trading”. Specifically, when Mr Cheong was asked for his opinion concerning Morgan Stanley’s message at 10:23 a.m. (“please refresh before trading”), Mr Cheong’s opinion was that if the accused saw this message from Ms Goyal, it remained important for the accused to ask Ms Goyal for a refreshed price to ensure that the bids for Morgan Stanley were not higher than the prices that he would ultimately use for the passthrough trades. [note: 285] This was the case even though there was no specific regulation requiring the accused to do so[note: 286]. In this regard, Mr Cheong’s view was that if there were higher bids in the market, the accused ought to sell the bonds at the higher market bid prices for the SP1 investors.[note: 287] In my assessment, Mr Cheong’s view accorded with logic and common sense and also aligned with the duty reposed in the accused.

434    In short, I was of the view that the onus on the accused to check with Ms Goyal i.e. to “refresh before trading”, while not explicitly written down as part of the accused’s duty as the portfolio manager of SP1, was simply part and parcel of the accused’s fiduciary duty, and also aligned with his duty to obtain the highest available price for the sale of the MIE bonds. Such a duty was intentionally breached by the accused in circumstances which he knew would cause loss to the investors or gain to himself.

435    Finally, I move on to Ms Goyal’s message which she sent to the accused at 10.45:02 a.m. on the one-on-one chat (see P64), where she had indicated to him “Wei.. presume nothing ont he MIEHOLs”.

(a)     This message again showed her continued interest (even at that late stage) in buying the MIE bonds from him.

(b)     The accused responded to her question at 10:47:53 a.m. with the words “nope.tks”, followed at 10:48:01 a.m. with the words “all or nothing”. The Prosecution suggested that his responses were all lies. Specifically, his answer “all or nothing” suggested that he did not trade with her because she had passed on making a bid for the IND23 bond.

(c)     I agreed with the Prosecution that the accused’s answer to Ms Goyal’s question was clearly and intentionally misleading, as it gave the impression that he did not sell the MIE bonds to Ms Goyal because she had not also made a bid for the IND23 bond. Yet the fact was that he never even traded the IND23 bond that day, not even via the passthrough.

(d)     While the accused tried to explain in court that he had responded to Ms Goyal in this manner because he wanted to give a “polite answer” to her, this explanation was absurd, especially as there was no need for him to lie to Ms Goyal for this purpose. This was especially so after he had already answered her “nope, tks” at 10:47:53 a.m. that he was not trading with her on the MIE bonds. Further in the context of his busy schedule, and the important meeting he was attending, there was simply no need for him to have said anything further (after the “nope, tks” response), unless it was to distract her from the true situation.

(e)     I further accepted the Prosecution’s submission that the accused had lied to Ms Goyal because he knew, prior to carrying out the passthrough trades with Pareto, that Ms Goyal was all along interested in buying the MIE bonds from him, but he did not want to take up her bids.

(f)     In addition, contrary to the Defence’s submission that this evidence was not relevant to the accused’s state of mind at the time of the passthrough[note: 288], this lie made by the accused to Ms Goyal, so soon after he had gone ahead with the passthrough trades (objectively benefiting himself in the process), suggested that the accused was fully aware that the passthrough trades for the MIE bonds had been improperly conducted at prices below what should have been paid for them.

436    What was, perhaps also telling about this episode, was that in his response to Ms Goyal, when he said to her “all or nothing” after she enquired again about the MIE bonds, the accused neither expressed surprise at her continued interest nor did he say that he was not aware that her earlier bids were still executable. Neither did the accused tell Ms Goyal that he thought that her bids had been withdrawn or that they were no longer valid because of the “please refresh before trading message” that she had posted at 10:23:42 a.m.

437    The Defence, however, argued that in any event, the Morgan Stanley bid was not available at the time of the passthrough trades since it had been refreshed at 10:23:42 a.m., and there was no evidence whatsoever that Morgan Stanley would have continued to bid on the MIE bonds. Neither, the Defence argued, was there evidence as to what the hypothetical bid would have been even if the accused had sought a new price.

438    However, with respect, none of these arguments help the Defence’s case, In this regard, I considered the following factors.

(a)     In so far as the charge was one of “likely to operate as a fraud on the investors”, what was important was that the accused knew that a significantly higher bid had just been made by Morgan Stanley for both of the MIE bonds during the time that he was allegedly trying to sell the bonds and that Ms Goyal’s message, after he did not respond to her high bids, was for him to “please refresh before trading”. Ms Goyal never once said that Morgan Stanley was no longer interested in trading or in bidding for the MIE bonds. Her actions throughout also suggested otherwise.

(b)     Further, contrary to the Defence’s arguments, I agreed with the Prosecution that there was nothing in the charges or in s 201(b), to limit the court to consider only the situation at the precise point i.e. 10:41:14 a.m. when the passthrough trades were carried out. Instead, bearing in mind that the accused had said that he began the process of sourcing for bids at 10 a.m. and that he wanted to conclude the process before his meeting started at 10.30 a.m., and seeing the supposed urgency of the situation, there was no excuse for him not to have sold to Morgan Stanely at the much higher bids they offered when these bids were clearly available, or to check back after with Ms Goyal after she posted the “please refresh before trading” message.

(c)     Clearly, the accused had not fulfilled his duty to get the highest available price for the SP1 investors, and his actions resulted in a loss to them (seeing the availability of other executable bids prior to and at the time of the passthrough), and a gain to the accused (as the overwhelming majority shareholder of SP5) since he bought the same MIE bonds at a price much lower than what Morgan Stanley (as well as BNP and SC Lowy) were offering to SP1. The accused did so in breach of his duty, and with the knowledge that he would thereby cause loss to the investor, and personally gain in the process.

439    As for the Defence’s argument that Mr Cheong had essentially endorsed the accused’s practice of conducting the passthrough trades using the bid prices offered by Haitong, I note that this was an inaccurate characterisation of Mr Cheong’s evidence.

(a)     Instead, Mr Cheong had explained that it was not appropriate to rely only on Haitong’s bid price for the passthrough trades.

(b)     Specifically, in his expert report P68 at [27], Mr Cheong stated that it was appropriate for Haitong’s bid price to be used only if it was the sole bid. In court, he made clear that his view was that this was not actually the situation in the present case, as there were clearly other bids, e.g., from Morgan Stanley and SC Lowy (for MIE19).

(c)     Further, when Defence Counsel asked Mr Cheong whether it was appropriate to have used Haitong’s bid prices at 10.41:14 a.m. for the passthrough trades, Mr Cheong explained that due to the time-lapse of over 30 minutes (between Haitong’s bids at 10.08:50 a.m. and 10.41:14 a.m.), it was not fair to rely on Haitong’s earlier prices as the reference price for the passthrough trades.[note: 289]

440    As for the accused’s claim that he had many chats opened at the material time on 19 January 2016, and he had no obligation to go back to check with Morgan Stanley, I agreed with the Prosecution that this was not a credible explanation for him to give.

(a)     To recap, Morgan Stanley was one of only four counterparties which had responded with bids, the others being BNP, Haitong and SC Lowy. Further, Ms Goyal had also shown arguably the most interest in the MIE bonds. More importantly, the accused was aware of her obvious interest, as he had even queried about her bids, and instructed her on how to place the bids (telling her to use the main chat for this purpose). Further, each time she sent him a bid by way of a message, that chat would have been highlighted for his attention.

(b)     Thus, in light of the above considerations, and having seen the “please refresh before trading” message from Ms Goyal (purportedly seen by him between 10.23 a.m. and 10.30 a.m.), this should have prompted the accused to check with Ms Goyal, especially as the accused had not yet carried out the passthrough trades, and would not do so until 10:41:14 a.m. Such an action on his part was certainly to be expected of him in light of his duty to the investors, and if he was really seeking to obtain the highest available prices. This was especially the case as the alternative of using the “too low” offered by Haitong as market context, was clearly disadvantageous to the investors.

441    All in all, the clear and irresistible inference to be drawn from all the evidence was that the accused did not check back with Ms Goyal after her “please refresh before trading” message, because he had no intention of selling the MIE bonds to her or to the market. Instead, he was going to carry out the passthrough trades using the significantly lower price offered by Haitong, and to do this to his benefit as the main shareholder of the buyer SP5, and to the detriment of the investors of SP1.

(5)    The accused sold the MIE bonds at a lower price to a fund where he had an overwhelming shareholding despite the obvious conflict of interest.

442    It was not disputed that by way of the passthrough trades, the accused sold the MIE bonds to SP5, in which the accused had a massive direct majority shareholding of 94.1% (and total sharing of 99% if his indirect interest was also considered - see [520] below). Despite this, the accused claimed that there was no conflict of interest in his carrying out the passthrough trades, as he had no responsibility to the SP1 fund. I agreed with the Prosecution that this claim was untenable and should be rejected.

443    To recap, in his role as the portfolio manager of SP1, a position that he had voluntarily assumed, the accused was entrusted with monies by SP1 investors to purchase and then manage the assets of SP1 including the MIE bonds. Thereafter, having also taken upon himself the role of selling the bonds as the portfolio manager on 19 January 2016, the accused should do so in the interest of the SP investors by selling the MIE bonds at the highest available prices. At the same time, being also the portfolio manager of SP5, he would also want to buy the same MIE bonds at the lowest possible prices to benefit the investors of SP5 (which was mainly himself).

444     Thus, the accused’s role and interest as a portfolio manager of SP1 (with a duty to the SP1 investors to sell the MIE bonds at the highest possible price) clearly conflicted with his role and interest as a portfolio manager of SP5 (with a duty to the SP5 investors to buy the MIE bonds at the lowest possible price).To make matters worse, he had an overwhelming direct and indirect shareholding of 99% in SP5 and hence a direct majority financial interest in the buying fund. In such circumstances, his position of being in a conflict of interest was obvious, and it was a clear and present danger to his objectivity and judgment.

445    In fact, the accused conceded that if SP5 bought the bonds at a price lower than the market price, he stood to gain as its majority shareholder[note: 290]. He further admitted that there could be a “potential conflict of interest” because of the trades between SP1 and SP5,[note: 291] although he also claimed that this conflict was mitigated by using Pareto as an intermediary, as he assumed that Mr Reshad of Pareto would conduct his own price discovery to determine a fair price.

446    As I have already analysed the evidence and concluded that the accused did not carry out genuine price discovery through Mr Reshad, nor did he have the intention to do so (see [376] – [412] above), it was clear that the accused never intended to resolve this obvious conflict of interest through the use of Pareto to conduct independent price discovery as claimed. Further, as the accused himself conceded, he was the ultimate decision-maker in the entire process:[note: 292]

Court:

Who decides whether to sell on the part of SP1?

A:

The selling decision is by the portfolio manager, that’s myself.

Court:

In this case?

A:

In this case myself.

Court:

Who decides to buy on the behalf of SP5?

A:

That is myself, your Honour.

[emphasis added]



447    As discussed earlier, the accused did not tell Mr Reshad that there was a potential conflict of interest in the passthrough trades between SP1 and SP5, or about his (the accused’s) majority ownership in SP5. This strongly suggested that the accused never expected Mr Reshad/Pareto to, or assumed that Mr Reshad/Pareto would, help to mitigate any conflict of interest, especially as neither Pareto nor Mr Reshad was even aware of such a conflict. If anything, Mr Reshad’s admission that he leaned on the accused for the price and did not do his own price discovery, showed that Mr Reshad never knew or expected to fulfil this role to conduct independent price discovery to establish a “fair price”, because the accused never gave him any reason for him to feel that this action was expected of him.

448    I would add that while the accused also said that “we” (meaning Mr Lai and he) “engaged Pareto Securities as the independent intermediary to come in here [to] do the price discovery and check on this price context that we have, and they can also at any point in time give us the right market context”, no evidence was ever led by the Defence from Mr Lai that there was actually any plan between he and the accused to do this. Neither was such evidence led from Mr Reshad or anyone from Pareto to this effect. [note: 293]

449    In essence, it was never possible for the accused to be looking at the interests of SP1 investors when the accused himself had a financial or pecuniary interest as an SP5 investor. This was obviously the case since the only way for the accused to maximise profit for SP5 (and hence for himself as the overwhelming majority shareholder of SP5) was if SP5 paid a low price for the bonds sold by SP1. It was clearly impossible to reconcile these conflicting duties, as could be seen from the struggle in the accused’s evidence in court.[note: 294]

A.

Your Honour, because as SP1 and SP5, my interest aside, I understand I have -- I understand I have my interest aside, but between two funds the price being sold between the two funds must be a fair price.

COURT:

Fair for who?

A.

Both for SP1 and SP5. Because a low price for SP1 means a high price for SP5 and vice versa.

COURT:

A low price for SP1 means -- I don't get it. A low

price for SP1 means a low price for SP5?

A.

So, your Honour, I may not explain it correctly. Please bear with me. So if SP1 sells something at a low price, it means

SP5 stands to gain.

COURT:

SP5 buys it at a low price?

A.

Correct. If SP1 sells at a high price, it means SP5 is overpaying.

COURT:

As far as SP5 is concerned, it's overpaying?

A.

Correct. So the idea here is to establish --

COURT:

SP1 of course benefits.

A.

Correct, your Honour. So the idea here is that we want to achieve a fair price between SP1 and SP5.

COURT:

You see, that's why I struggle with your evidence. So SP1 benefits in this scenario; SP5 overpays. So whose interests are you looking at? SP1 or SP5?

A.

Both SPs' interests must be looked after equally.



450    Thus, by putting himself in the conflict of interest situation, where

(a)     If SP1 sells at a high price, it benefits SP1 but SP5 suffers, and

(b)     If SP1 sells at a low price, it benefits SP5 but SP1 suffers,

the accused would ultimately have to choose to favour one party (either SP1 or SP5) over the other. He simply could not have it both ways.

451    This was something that was clear from the accused’s answers, although he attempted to suggest that he was trying to be fair to both parties and that he had hoped and/or expected that this would be achieved by using Pareto as the intermediary to conduct its own genuine price discovery. As stated earlier, the accused’s claim about allegedly using Pareto to conduct genuine price discovery was simply not borne out by the evidence.

452    All in all, despite the obvious conflict of interest in carrying out the passthrough trades, the accused went ahead with them resulting in SP5 (of which he was the clear majority shareholder) buying the bonds of SP1 essentially at a gross undervalue. This supported the Prosecution’s claim this action of the accused was taken because the accused liked (and admitted that he liked) the MIE bonds and hence wanted to acquire them.

III)   The accused knew that his acts would cause losses to SP1 investors and benefit SP5 which he was a majority shareholder of

453    The Prosecution submitted that by the accused selling the MIE bonds from SP1 to SP5 at prices pegged to Haitong’s bid prices when he knew of higher bids (including the bid from Morgan Stanley), the accused must have known that doing so would cause losses to SP1 investors. This was because the resulting sale proceeds from such passthrough trades would obviously be less than if he had sold the MIE bonds to the other counterparties which had made (higher) executable offers that morning, and they would also be less than if he had used their bid prices for the passthrough trades. At the same time, the accused knew that SP5, with the accused as its clear majority shareholder, would benefit from buying the MIE bonds based on the lower Haitong bid prices.

454    In this regard, it was undisputed that the price that the accused paid for the MIE bonds, through the mechanism of using SP5 in the passthrough trades, was lower than the prices that Morgan Stanley had offered for the MIE bonds on the morning of 19 January 2016. The passthrough trade prices were also lower than the prices which BNP offered for both MIE bonds, and which SC Lowy offered for the MIE19 bond. The latter two bids were both clearly executable as late as 10.41:14 am. As for the earlier higher bids by Morgan Stanley, they were executable when given that morning, and this would have been known to the accused at that time when he saw them. Alternatively, the accused should have sought to check on them after seeing Ms Goyal’s message to “please refresh before trading” message which she sent at 10:23:42 a.m.

455    Whatever the case may be, the fact that all these alternatives to the passthrough trades, which were all more advantageous to the SP1 investors, were not taken up by the accused, but he proceeded to passthrough using the significantly lower Haitong prices for the passthrough trades meant that:

(a)     The SP1 investors received significantly less from the sale of the MIE bonds by the accused to SP5 via the passthrough than they would have received if the bonds were sold to Morgan Stanley, BNP or SC Lowy, or if the prices offered by any of these three counterparties been used for the passthrough trades; and

(b)     The accused would have made the corresponding gain by acquiring the MIE bonds at these lower bid prices, as he was the majority owner of SP5 which bought these bonds at a “discounted” price from SP1.

456    While the Defence submitted that the accused was not the only one who profited from the passthrough trades since SP5 also had Mr Lai’s father-in-law, and OAIP as its shareholders, the undisputed fact was that the accused was the overwhelming shareholder with 94,1% direct interest in SP5 on 18 January 2016. In any event, the accused was also a shareholder of OAIP and hence had a further indirect interest in SP5 of 4.9%. Further, the fact that others may also have benefited from the accused’s actions does not detract from the fact that the accused made (overwhelmingly) the most profit from his act of carrying out the passthrough trades. Neither does it change the fact that it was the SP1 investors who ultimately suffered losses from the accused’s act of carrying out the passthrough trades at the prices that he used.

457    I would add that it was also unchallenged that subsequently, the accused sold the same MIE bonds to the market at much greater profit. For the purposes of the trial, it was set out at P8, a summary of the prices that SP5 paid for MIE18 and MIE19 bonds, and the price that SP5 sold these same bonds for.

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458    In essence, the accused cashed out his gains in the MIE bonds about 3 months after the passthrough trades at a tremendous profit (of over S$1.5 million – see [520] below) that he would not otherwise have made but for the passthrough trades that he conducted at the prices he did on 19 January 2016.

IV)   The above constitute acts were likely to operate as a fraud on the SP1 investors

459    To recap, for the reasons already extensively discussed:

(a)     The SP1 investors had entrusted their monies with OAIP to invest, and the accused as portfolio manager of SP1 owed a fiduciary duty to the investors, and a duty to sell the assets of SP1 (including the MIE bonds) at the highest available prices.

(b)     At the latest by 10:15:21 a.m. on 19 January 2016, the accused saw Morgan Stanley’s bids for the MIE bonds and knew that the bids were executable. He asked Ms Goyal a question seeking confirmation that her bids were for the sizes of the MIE bonds. Whether he did check for her reply or not, his subsequent actions showed that he did not intend to sell the MIE bonds to her.

(c)     The accused knew that Morgan Stanley’s bid prices for the MIE bonds were higher than Haitong’s and that they were executable. As such, because of his duty to SP1 investors, he ought to have sold the MIE bonds to Morgan Stanley by 10:15:21 a.m. or shortly thereafter. Alternatively, he ought to have used the Morgan Stanley bid prices as market context for any passthrough trades that he conducted with Pareto.

(d)     Before selling the MIE bonds via the passthrough to SP5, the accused did not do any genuine price discovery either on his own or through Mr Reshad. He also had no basis to expect Mr Reshad would do any price discovery for the MIE bonds which were not bonds issued by Pareto, and he never told Mr Reshad to carry out price discovery in any event. The evidence further showed that the accused knew that Mr Reshad relied solely on him to provide the prices for the passthrough trades.

(e)     The accused either did not see the “please refresh before trading” message from Ms Goyal that she posted at 10:23:42 a.m. or even if he did, he ought to have checked back with her on the Morgan Stanley bid prices available to him thereafter.

(f)     Despite knowledge of Morgan Stanley’s higher bid prices, the accused used the lower bid prices by Haitong as market context for the passthrough trades. In doing so, he breached his duty to sell the MIE bonds at the highest available prices.

(g)     The accused also knew of a higher executable bid by SC Lowy for the MIE19 bonds and had no good reason for not selling them to SC Lowy or not using that bid price as market context for the passthrough trade of the MIE19 bonds. The accused would also have been alerted to the higher prices offered by BNP for the MIE bonds before he actually carried out the passthrough trades.

(h)     Yet despite having been given several executable bids for the MIE bonds (i.e., Morgan Stanley and BNP for both the MIE bonds and SC Lowy for the MIE19 bonds) before carrying out the passthrough trades, the accused ignored these higher bids and sold the MIE bonds to SP5 at lower prices. He did so because he liked the MIE bonds and wanted SP5 to purchase them via the passthrough trades based on the lower bid prices made by Haitong.

(i)     At the time the accused carried out the passthrough trades for the MIE bonds, he knew that he would cause detriment and loss to the SP1 shareholders as he sold them at prices lower than he otherwise would have obtained had he sold based on the higher executable bids. Correspondingly, he also knew that he would make a gain for SP5 (and hence himself as the clear majority shareholder of SP5) through the same passthrough trades. Subsequently, the accused sold the MIE bonds for profit to the market, thus crystallising his gains.

460    The above findings would satisfy each and every element of the charges.

(a)     The first element, which was that the accused engaged in an act directly in connection with the sale of securities, namely, the MIE bonds; and

(b)     the second element, which was that the act was likely to operate as a fraud on the investors of SP1.

461    Accordingly, I was of the view that the Prosecution has proven all the elements of the two charges against the accused beyond a reasonable doubt and I convicted him accordingly.

Sentencing

462    Having found the accused guilty of the two charges proceeded with, I now deal with sentencing.

Prescribed punishment and antecedents

463    The offences the accused has been convicted of are punishable, under s 204(1) SFA, with imprisonment of up to 7 years, or with a fine of up to $250,000, or with both.

464    The accused is a first offender.

Defence’s sentencing submissions (“DSS”)

465    The Defence argued that:

(a)     a high fine of up to S$150,000 in respect of each charge was appropriate and proportionate; and that

(b)     alternatively, if the Court was of the view that the custodial threshold has been crossed, an imprisonment sentence of no more than 3 weeks per charge should be imposed, with the sentences to run concurrently.

Argument that a custodial threshold has not been crossed

466    On its arguments that the custodial threshold had not been crossed, the Defence submitted that the following sentencing considerations applied:

(a)      First, the appropriate sentence should be determined with reference to the aims of the SFA, i.e. (a) the protection of investors; (b) the protection of public confidence in the market; and (c) ensuring that the operation of the market was not distorted (citing Ng Sae Kiat at [58]).

(b)      Second, in weighing whether a custodial sentence was warranted for offences under the SFA, the Court considers the extent of harm or damage that was caused: PP v Foo Jong Kan [2005] SGDC 248 (“Foo Jong Kan”) at [29].

(c)      Third, public interest affected the type of sentence to be imposed, whilst aggravating or mitigating circumstances affected the duration or severity of the sentence imposed, citing Ng Geok Eng at [44].

(d)      Fourth, as to when the custodial threshold was crossed for offences under s 201(b), the Court in Ng Sae Kiat had held at [58]:

We do not think it is possible, nor desirable, to lay down a bright line rule as to when the custodial threshold would be crossed in respect of a s 201(b) offence. In our judgment, it is necessary to consider all the facts of the case to determine if the offending conduct in question warrants a custodial sentence. A non-exhaustive list of factors to consider would include the following:

a)    the extent of the loss/damage caused to victim(s);

b)    sophistication of the fraud;

c)    the frequency and duration of the offender’s unauthorised use of the relevant account;

d)    extent of distortion, if any, to the operation of the financial market;

e)    the identity of the defrauded party (i.e., whether the defrauded party is a public investor or a securities firm)

f)    relationship between the offender and the defrauded party; and

g)    the offender’s breach of any duty of fidelity that may be owed to the defrauded party.

In addition, the Defence submitted that situations where the custodial threshold has been crossed included the following:

(i)       where there has been market misconduct which adversely affects the integrity of the financial market by causing information conveyed on the market to be distorted: Ng Sae Kiat at [56]; and

(ii)       where the offending conduct impinges upon the interests of public investors: Ng Geok Eng at [49]. For example, in the case of unauthorised share trades, those trades made without the consent of the account holder, as opposed to those made without the consent of the securities firm with whom the account was opened, would cause greater detriment to public investors and would therefore attract punishment of a higher order: Ng Geok Eng at [49]-[50].

(e)      Fifth, whether a profit or gain was made is not determinative as to whether a custodial sentence should be imposed. For example, if the profit or gain was incidental, there may be grounds for a fine only: Foo Jong Kan at [30].

(f)      Sixth, a deterrent sentence need not always take the form of a custodial term and could take the form of a fine so long as it was high enough to have a deterrent effect on the offender himself as well as others: Cheong Hock Lai at [42]. A fine would generally be appropriate for a s 201(b) offence which does not involve the deception of an innocent member of the investing public: Ng Geok Eng at [52].

467    Applying the above sentencing principles to the facts of the present case, and bearing in mind that there were no similar precedents applicable, the Defence argued that a high fine should suffice.

468    The Defence further cited the following reasons.

469     First, there was no impact on public confidence in the market nor was there any distortion of market operation as a result of the accused’s actions, and the impact would only be on the SP1 investors. As for SCL, which was the only investor of SP1 that testified at the trial, this was a private investment company incorporated in the British Virgin Islands, and it had the knowledge, expertise, and experience in financial matters to evaluate the investment, and the risks involved and could bear the risk of loss of its entire investment.

470     Second, the Defence argued that the Court should apply a graduated approach in view of the absence of any written law, rule, regulation, policy, guideline or contract concerning the accused’s conduct citing the District Court case of PP v Siow It Loong [2008] SGDC 306 (“Siow It Loong”). Under that approach, in situations where “… conduct is not inherently dishonest and has not previously been shown to be against the law”, the Court there decided that “…some leniency for the first offences of a kind should be exercised if over-regulation of the stock market is to be avoided” (see [10]). In the present case, the Defence argued that since the accused’s behaviour was not clearly or expressly prohibited by any written law, rule, regulation, policy, guideline or contract, a graduated approach should similarly be taken and some leniency should be shown so as to avoid over-regulating the financial markets and dampening enterprise on the part of traders.

471     Third, as regards the extent of loss caused, the Defence’s primary position was that no actual loss was caused to the investors of SP1 since the Morgan Stanley bid prices were no longer firm, valid or executable at the time of the passthrough trades. In any event, even by the evidence of the expert, Mr Cheong, the financial impact from the sale of the MIE18 and MIE19 bonds to SP5 through Pareto at the actual executed prices instead of at Morgan Stanley’s earlier (refreshed) bid prices was US$190,625 and US$151,875 respectively (i.e., US$$342,500 in total).[note: 295] This was similar to the losses in the other s 201(b) SFA cases considered in Annex A of the DSS where in each case, a fine was imposed despite actual losses being of comparable amounts. For example:

(a)     In Ng Sae Kiat, the loss caused was quantified between S$113,000 and S$266,000 for each of the 4 offenders. Notwithstanding the presence of aggravating factors, including premeditation, and planning, the extended duration of the conduct, the difficulty of detection, and the violation of clear and express prohibitions against trading, fines of between S$10,000 and S$50,000 were imposed per charge.

(b)     In Cheong Hock Lai, the loss caused was quantified at S$107,925.29 for one of the offenders. Despite the presence of other aggravating factors such as the extended duration of the conduct, the Court imposed a fine of between $30,000 and S$100,000.

(c)     Based on the above precedents and bearing in mind the financial impact quantified by Mr Cheong, the Defence submitted that a fine of up to S$150,000 was appropriate.

472     Fourth, the Defence argued that there was an absence of a sophisticated or elaborate scheme, or of planning or premeditation in the accused’s conduct, as could be seen from the following factors.

(a)     The offences were precipitated by SCL’s redemption of its investment into SP1. Had SCL not redeemed its investment, the acts underlying the charges would not have taken place at all.

(b)     The accused did not try to conceal his acts, and the decision to conduct a passthrough was not one taken by him alone, and others in OAIP were involved in the preparatory steps for the contemplated passthrough trade There was also nothing in principle inherently objectionable about a passthrough.

(c)     The facts and circumstances surrounding the acts underlying the charges took place within a short window on the morning of 19 January 2016, with the price discovery process commencing at 10:00:34 a.m. and SP1 eventually selling the MIE bonds to Pareto at 10:41:14 a.m. When SCL sought further information on the sale of SP1’s assets, OAIP was prepared to make information available subject to SCL’s execution of an NDA. Eventually, SCL decided not to enter into the NDA and chose not to access the information that was made available.

(d)     This situation was in contrast to other s 201(b) cases, where there was pre-meditation, planning, or coordination, and/or where there were elaborate steps taken to conceal the wrongdoing. For example:

(i)       In PP v Ng Hock Ching and Lau Voon Kien and Lum Wai Meng Benny [2017] SGDC 142, (“Ng Hock Ching”) the accused operated a deceit on a securities trading firm. The Court found that there was evidence of premeditation and planning, and the accused had taken active steps to conceal his involvement. Despite these factors and the presence of other aggravating factors, the Court sentenced the accused to a fine of S$150,000 per charge.

(ii)       In Ng Sae Kiat, the accused persons had collaborated and coordinated with one another to carry out more trades and had even set up additional nominee accounts to increase their trading limits. Despite this and the presence of other aggravating factors such as the extended duration of the conduct, the difficulty of detection, and the violation of an express prohibition to trade, the Court sentenced each of the accused persons to fines of S$10,000 to S$50,000 per charge.

(iii)       In Ng Geok Eng, the accused person used various trading accounts in his, his wife’s, and his friend’s names to trade shares in a publicly listed company to artificially maintain its share price. The first instance Court held that the offences were “carefully planned and pre-meditated, and involved a high level of deceit” (see Ng Geok Eng at [24]). Despite this and the presence of other aggravating factors, such as the scale and duration of the conduct and the extensive market impact, the accused was sentenced to a fine of S$50,000 for each of the three s 201(b) offences that he was charged with (see Ng Geok Eng at [81]).

(iv)       In PP v Sia Teck Mong and another [2005] SGDC 249 (“Sia Teck Mong”) the Court found that deceit on the securities trading firm was perpetrated with some level of organisation and coordination. Despite this and other aggravating factors like the violation of an express prohibition against placements, the accused persons were sentenced to fines of S$100,000 to S$150,000.

(v)       Based on the above precedents and the circumstances of the present case, the Defence submitted that a high fine of up to S$150,000 in respect of each charge was appropriate and proportionate in the present case.

473     Fifth, as regards the frequency and duration of the offences, the Defence pointed out that the passthrough trades were conducted within a short window on the morning of 19 January 2016, and that whilst there are two charges, both were part of the same transaction, and were conducted as a one-off event. In addition, the Defence argued that:

(a)     The Prosecution had not taken issue with any of the other trades in January 2016 conducted as part of the liquidation process, including a subsequent passthrough trade between SP1 and SP5 done through Pareto for the Indika bonds.

(b)     The accused’s behaviour was also not systematic, large scale, or carried out over a long period of time, in contrast to other s 201(b) cases where the conduct occurred over an extended period. For example:

(i)       In Ng Geok Eng, the accused had made trades on 260 out of 273 trading days (see [14]), but was nevertheless sentenced to a fine of S$50,000 for each of the three s 201(b) offences he was charged with (see Ng Geok Eng at [81]).

(ii)       In Cheong Hock Lai, the conduct of the accused persons took place over 3 months, and they were sentenced to fines ranging from S$30,000 to S$100,000.

474     Sixth, the Defence took the position that there was no distortion to the operation of the financial market, and argued that in other s 201(b) cases where there was no distortion to the operation of the financial market the Courts have imposed a fine even where there were significant aggravating factors e.g. in Ng Sae Kiat where fines of S$10,000 to S$50,000 per charge were imposed in connection with deceptive trades that were traded off-exchange for which there was no secondary market and no actual market impact.

475     Seventh, SP1 was a private offering investment issued only to selected accredited or institutional investors, and not to general retail laymen investors.

476     Eighth, the Defence argued that the accused did the best he could in the circumstances and had no motive to cause loss to SP1 investors or to benefit himself. Further, because of his efforts, SP1’s investments were successfully liquidated in a short time, and notwithstanding the abrupt liquidation of SP1’s assets during extremely challenging and volatile market conditions, a redemption amount of over US$6.49 million was paid to SCL, even though Mr Goh testified that there was no mention of redemption price or expectation by SCL, and he believed SCL just wanted to exit and get its money out.

477    As regards mitigating factors, the Defence highlighted the following:

(a)      First, the accused was a first-time offender and has no antecedents: Krishin Chand v Public Prosecutor [1995] 1 SLR(R) 737 at [14]. Additionally, the accused is of good character, as attested to by the Head of China of ARA Private Funds, a real estate fund management company.

(b)      Second, the accused has served the country with distinction as an army officer and has provided substantial public service. He was awarded the Platoon Best Trainee during Basic Military Training, the Sword of Merit (which was awarded to the top 10% of the Officer Cadet School cohort for each vocation), and the Best Trainee in his Guards Conversion Course. He completed his National Service duties, leaving as a Captain of the Singapore Armed Forces. The Defence argued that the public service records of accused persons merit consideration in sentencing as they show good character and tangible contribution to the welfare of society: Foo Jong Kan at [24], referencing Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523 (“Knight Glenn Jeyasingam”) at [27].

(c)      Third, the accused had cooperated with the investigations. He attended no fewer than 5 police interviews between June 2017 and February 2018 in connection with the investigations.

(d)      Fourth, there have been material and significant delays in the proceedings which have caused the accused significant stress, undue agony, and the immense uncertainty of having the matter hanging over his head since investigations commenced in 2017. The Defence highlighted the following case authorities:

(i)       In Tan Kiang Kwang v PP [1995] 3 SLR(R) 746 (“Tan Kiang Kwang”), the Court held at [20] that “in appropriate cases, the court may exercise its discretion to order a “discount” in sentence, if there has been a significant delay in prosecution which has not been contributed to in any way by an accused person, if it would otherwise result in real injustice or prejudice to the accused”.

(ii)       The lapse of time is a relevant mitigating factor: PP v Lo Hock Peng [2015] SGDC 23 (“Lo Hock Peng”) at [47], and such delays can result in accused persons suffering prolonged periods of suspense and anxiety: Chan Kum Hong Randy v PP [2008] 2 SLR(R) 1019 (“Randy Chan”). The Court in Randy Chan observed at [23] “[W]here there has been a lengthy postponement, ... fairness to the prisoner requires weight to be given ... to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach…”

(e)     In the present case, the Defence submitted that there have been significant delays in prosecution in light of the following:

(i)       The First Information Report was made against the accused on 20 February 2017. His first statement under section 22 of the CPC was recorded on 27 June 2017 (P79). Subsequent statements were recorded on 6 July 2017 (P80), 2 February 2018 (P81), 6 February 2018 (P82), and 8 February 2018. However, he was apparently only charged on 22 October 2020, which was more than 3 years after he was first investigated.

(ii)       Trial dates in the matter were first fixed at a pre-trial conference on 30 September 2021 and affirmed in pre-trial conferences on 27 October 2021 and 17 January 2022. The first tranche of the trial took place between 1 August 2022 and 16 August 2022. The final tranche of the trial took place between 14 August 2023 and 18 September 2023. The Prosecution delivered its oral closing submissions on 29 December 2023, and the Defence delivered oral closing submissions on 12 March 2024. The accused was eventually convicted on 11 April 2024. As of the date of the sentencing submissions, nearly 7 years have passed since the accused was first investigated.

(iii)       In the meanwhile, the accused has been subjected to inconveniences and restrictions, such as the need to have to seek leave of the Court each time he travelled out of Singapore. In total, the accused has had to file 7 applications to leave jurisdiction.

(iv)       Moreover, as the Prosecution consistently sought a bail condition that the accused’s bailor, who is his wife, cannot travel at the same time that the accused travelled, the accused has not been able to go on any family holidays with his whole family consisting of his wife and two children during this time.

(v)       Furthermore, there was significantly increased cost, time and resources applied to the accused’s defence, arising from the Prosecution’s evolving case, and the inclusion of new witnesses from the original list of witnesses filed on 1 July 2021.

(f)      Fifth, prior to these proceedings, the accused had a substantial and extensive professional reputation which has suffered, and arising from the investigation and present charges, the accused has not been able to work in the fund management industry as a fund manager, thereby resulting in a loss of job opportunities.

478    All in all, the Defence submitted that a fine would suffice.

Length of custodial sentence if such a sentence is appropriate

479    The Defence further submitted that even if the Court was of the view that the custodial threshold has been crossed, a sentence of no more than 3 weeks’ imprisonment should be imposed per charge. In particular, the Defence sought to distinguish the case of Loo Kiah Heng as a sentencing precedent (see [177] above), because of the presence of certain aggravating factors there which the Defence argued were absent in the present case.

480     First, in Loo Kiah Heng, which involved over 37 trades conducted over 20 months, both accused persons had pleaded guilty to four charges each under s 201(b). Additionally, each accused person had 33 charges taken into consideration for the purposes of sentencing.

(a)     Soh, the fund manager who was in charge of managing an institutional fund owned by the Singapore Anti-Tuberculosis Association (“SATA”), had engaged in married trades with Loo, and had sold, on behalf of SATA, to Loo at prices below the market price and did the reverse when buying from Loo. Over 20 months, 37 married trades were conducted, and total profits of S$154,588.64 (for the proceeded charges) and S$842,353.51 (for all the charges) were gained. The sheer scale of the scheme in Loo Kiah Heng led the Court there to conclude that Loo had “clearly exploited a laxity in the way the reporting [of trades] was monitored”, and that his acts were “premeditated and executed with care to avoid detection” (at [35]).

(b)     The Defence argued that the scale and extent of the conduct of the offenders in Loo Kiah Heng far outstripped that of the accused in the present case, as the latter concerned the sale of the MIE bonds in a single transaction that took place on a single day between 10:30 a.m. and 10:44 a.m., and with a single counterparty. Further, more than a dozen bonds in SP1’s portfolio, with an estimated book value of over US$13.6 million (including the MIE bonds), were liquidated in connection with SCL’s redemption including the Indika bonds which were later subjected to a passthrough to SP5 through Pareto. Yet, despite conducting investigations for more than 3 years, the Prosecution had not taken issue with the liquidation of any of the other bonds or any other trades conducted during the liquidation, and there were also no charges to be taken into consideration for sentencing here.

481     Second, in Loo Kiah Heng, the offences allowed Loo to make immediate, guaranteed intra-day contra profits from the difference in prices, exceeding S$842,000 in total (at [2] - [4]).

(a)     Further, while the Court there found that Soh, the fund manager, did not make “direct monetary profits” in the same manner that Loo did, “the benefits that would accrue to him could not be understated. The married trades were executed in order to feed a relationship that was beneficial to Soh because it would improve his standing in ING and positively affect his income/bonuses. His motivations in maintaining the relationship with Loo and in keeping the married trades concealed were thus hardly altruistic” (at [49]).

(b)     In the present case, the Prosecution’s expert, Mr Cheong. had quantified the immediate financial impact from the sale of the MIE18 and MIE19 bonds to SP5 at the actual executed prices instead of at Morgan Stanley’s earlier (refreshed) bid prices at US$190,625 and US$151,875 respectively (total: US$342,500). This was far below the amount of S$842,000 involved in Loo Kiah Heng. As for the total profit made from the subsequent onward sale by SP5 of the MIE18 and MIE19 bonds on 7 March 2016 and 25 April 2016 (S$572,500 and S$549,250 respectively - total: S$1,121,750), any such profit was purely fortuitous. Unlike in Loo Kiah Heng, there was no guarantee of any such profit as SP5 had taken on the risk of the MIE bonds.

482     Third, in Loo Kiah Heng, the Court found that Soh carried out the trades in a manner which he knew would escape detection. The Court found that Soh’s acts were “executed with care to avoid detection” (at [45]). By contrast, the decision to conduct a passthrough was not one taken by the accused alone, and various other key persons were involved but had not flagged any issues or concerns. There was no evidence of any deliberate and covert attempt to cover up or to otherwise conceal the accused’s interest in SP5 and/or the passthrough from other parties.

483     Fourth, in Loo Kiah Heng, the securities in question were publicly traded stocks. By contrast, the MIE bonds were not traded on the open market and SP1 was a private fund for accredited or institutional investors only.

484     Fifth, there was no indication that the prices of the married trades in Loo Kiah Heng were determined with regard to any points of reference, e.g., actual firm, valid and executable bids received. This was unlike the present case where the passthrough prices were based on the actual earlier firm, valid and executable Haitong bids received.

485     Sixth, as for the plea of guilt in Loo Kiah Heng, the Defence pointed out that a plea of guilt only has a mitigating effect when it was motivated by genuine remorse, contriteness or regret, and/or a desire to facilitate the administration of justice, and that not every plea of guilt entitles the accused to a “discount” on the sentence: Fu Foo Tong v PP [1995] 1 SLR(R) 1 at [12]. The Defence argued that there was also no indication in Loo Kiah Heng that the Court considered the plea of guilt as a mitigating factor or took the guilty plea into consideration for the purposes of sentencing. In the present case, the accused was entitled to claim trial, and amongst other things, the Morgan Stanley bids did not exist at the time of the passthrough. Further, it was only after the end of the first tranche of trial that the Prosecution amended the charges against the accused.

486    The Defence further argued that sentencing precedents must be compared on a charge-by-charge basis. This followed from the fact that the approach for sentencing multiple offences was to first determine the appropriate individual sentence in respect of each charge (including the relevant mitigating and aggravating factors for each charge), before determining the overall sentence to be imposed (including which sentences ought to run consecutively, and the totality principle): Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [18] -[19]. It was thus not appropriate to use the global sentence imposed in Loo Kiah Heng as the measure of comparison since that sentence was a product of adjustments that had been made in the second stage (including the Court’s determination in that case that 2 of the sentences should run consecutively).

487    The Defence also pointed out that in Loo Kiah Heng, the Court declined to increase the sentences with a measure of specific deterrence because Soh had been terminated from his job in ING and there was no indication he would be in a position to commit such offences in the industry again. Likewise, Loo was running a business in China (at [50]). Similarly, specific deterrence was not a factor in the present case because the accused no longer works in the fund management industry and has ceased to be a fund manager since his employment was terminated in January 2017.

488    Thus, as the facts in the accused’s case were less aggravated than Soh’s acts in Loo Kiah Heng, and considering the other circumstances and the personal and mitigating factors, the Defence argued that the accused should be given a shorter sentence of no more than 3 weeks’ imprisonment per charge.

Prosecution’s skeletal sentencing submissions (“PSSS”)

489    The Prosecution submitted for a global sentence of 8 to 12 months’ imprisonment, consisting of two sentences of 8 to 12 months’ imprisonment per charge, with the sentences running concurrently.

Applicable sentencing principles and considerations

490    The Prosecution cited the decision of the High Court in Ng Sae Kiat where at [58] of the judgement, the court made clear that one of the aims of the SFA was to protect investors. The Prosecution also referred to sentencing factors set out in Ng Sae Kiat, and in Lee Chee Keet v PP [2016] 4 SLR 1316 (“Lee Chee Kiat”), and submitted that a deterrent sentence must be imposed on the accused, due to the gravity of the offence and the need to protect investors.

491    In addition, the Prosecution also emphasised Singapore’s status as a leading international fund management hub, boasting a robust financial sector that plays a pivotal role in global markets, with assets under management (AUM) in Singapore increasing from S$2.7 trillion in 2016 to S$4.9 trillion by 2022. These amounts underscore the responsibility and trust given to fund and portfolio managers in managing the investments of investors.

492    Arguing the importance of investor confidence for the reputation of Singapore’s financial market and economic growth, the Prosecution submitted that it was imperative that individuals entrusted with managing funds should uphold the highest standards of integrity and transparency. In this case, the Prosecution argued that the accused’s conduct represented a breach of trust that undermines investor confidence and a deterrent sentence of a substantial imprisonment term was necessary to deter others from even thinking of engaging in any fraudulent act, so as to safeguard investors and maintain investor confidence.

Aggravating factors point to sentence of 8 to 12 months’ imprisonment

493    The Prosecution submitted that there were numerous aggravating factors in the present case to justify a deterrent sentence:

(a)      First, the losses caused to investors in this case were significant. Specifically, through the passthrough trades, the MIE18 and MIE19 bonds were sold from SP1 at US$25.375 and US$21.875 respectively, for which SP1 received sale proceeds of US$634,375 for the MIE18 bonds and US$328,125 for the MIE19 bonds. The Prosecution argued that if the accused had sold the bonds to Morgan Stanley or used Morgan Stanley’s prices for the passthrough trades, SP1 investors would have received US$825,000 for the MIE18 bonds and US$480,000 for the MIE19 bonds. Therefore, for the First Amended Charge involving the MIE18 bonds, the accused caused a loss amounting to US$190,625 (about S$273,738) and for the Second Amended Charge involving the MIE19 bonds, the accused caused losses of US$151,875 (about S$218,093). The total losses were thus US$324,500 (about S$491,831[note: 296]).

(b)      Second, the accused was in a position of trust and had intentionally breached the trust given to him. Further, being in an obvious conflict of interest position, given that he was the portfolio manager of SP1 (which was selling the bonds) and the majority shareholder of SP5 (which was buying the bonds), he went ahead to sell the bonds at lower prices knowing that it would cause loss to SP1 investors. This was an intentional breach of the trust of the SP1 investors and caused losses to them.

(c)      Third, the offences were premeditated. The inference to be drawn was that the accused never intended to carry out the sale of the MIE bonds at prices that would benefit SP1 investors. Instead, he did so with the motivation to benefit himself, and to cause loss to the investors.

(d)      Fourth, the offences were difficult to detect. If not for the letter sent in by Mr Goh to MAS on 31 October 2016, the accused’s offending would have gone undetected.

(e)      Fifth, the accused personally benefitted from the offences:

(i)       At the point of purchase of the bonds into SP5, he bought them at prices lower than what others in the market would have paid for. In this regard, when these bonds were purchased by SP5 at prices significantly lower than that in the market, SP5 recorded unrealised gains of US$264,062.50 (about S$375,998.59) for the MIE18 bonds and US$142,500.00 (about S$202,905.75) for the MIE19 bonds, totalling US$406,562.50 (about S$578,904.34).[note: 297] This benefitted the accused as the owner of SP5 (with direct and indirect shareholding of 99%). If the bonds had been sold to Morgan Stanley, the sale of the MIE18 and MIE19 Bonds, the loss would be quantified at S$190,625 and S$151,875 respectively,[note: 298] as seen from the evidence of Mr Cheong.

Impact of selling to Pareto (passthrough) instead of to the market

 

Bid for 2.5 million of MIEHOL 18

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(2.5 million x bid price)

Impact ($)

(sales proceeds – 634,375)

1

BNP

34

850,000

215,635

2

MS

33

825,000

190,625

3

Pareto

25.375

634,375

-

Bid for 1.5 million of MIEHOL 19

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(1.5 million x bid price)

Impact ($)

(sales proceeds – 328,125)

4

BNP

31.5

472,500

144,375

5

MS

32

480,000

151,875

6

Pareto

21.875

328,125

-



(ii)       By April 2016, the accused had sold both bonds to the market for a profit of US$572,500 for the MIE18 bonds and US$549,250 for the MIE19 bonds (the total profit was US$1,121,750 or around S$1,468,304).

(iii)       Given the huge amount of profit made by the accused, even if the maximum fine was imposed for each charge, the accused would still be enriched by his offending. Accordingly, a fine was clearly manifestly inadequate and would not be a sufficient punishment.

(f)      Sixth, there was a measure of sophistication to the fraud, as the accused did not engage in genuine price discovery, and had put forward a façade of seeking the highest prices for the MIE bonds to sell to SP5 through Pareto.

494    The Prosecution also argued that the global sentence of 8 to 12 months’ imprisonment sought in the present case was appropriate bearing in mind the case of Loo Kiah Heng which was the only reported case under s 201(b) involving a fund manager. The Court there had sentenced Loo to four months’ imprisonment and Soh (the fund manager) to eight months’ imprisonment, and the sentences were upheld on appeal. The Prosecution highlighted the following factors in Loo Kiah Heng which it argued were relevant to the present case:

(a)     The District Judge (DJ) there found (at [54]) the case was akin to one of criminal breach of trust rather than of mere misuse of information of a trading account. This fact, together with the way the transactions were carefully executed and concealed, the length of time over which the offences took place, the scale of the resultant benefits to the accused persons and the gravity of the corresponding loss suffered by SATA (the victim), made the DJ conclude that a custodial sentence was necessary.

(b)     Given Soh’s greater position of responsibility towards SATA and the fund as compared to Loo, the DJ sentenced Soh to a higher term of imprisonment. Loo also received a lower jail sentence because he disgorged his profits. At [51], in commenting on fund/asset managers, the Court stated that “It must be impressed upon persons placed in positions of trust in investment houses and the like that they cannot misuse the assets placed in their care and expect to get away lightly.”

495    In the present case:

(a)     The profits exceeded the total profits of all the charges in Loo Kiah Heng.

(b)     The fund manager Soh in Loo Kiah Heng, who was not shown to have directly benefitted monetarily from the offences, was nevertheless sentenced to 8 months imprisonment.

(c)     As compared to the accused persons in Loo Kiah Heng who pleaded guilty, the accused here claimed trial to the charges against him.

496    The Prosecution argued that while Loo Kiah Heng involved 37 trades over a 20-month period, this must be balanced against the aggravating factors in the present case. Considering these aggravating factors and Soh’s sentence, the proposed sentence of 8 to 12 months’ imprisonment per charge in the present case was appropriate.

497    Separately, the Prosecution highlighted the guidance provided by See Kee Oon JC (as he then was) in Lee Chee Keet on sentencing for s 201(b) offences. I will discuss these observations in greater detail when setting out the reasons for my sentence.

Defence’s Reply Sentencing Submissions (“DRSS”) and Defence’s Further Reply Sentencing Submissions (“DFRSS”)

498    The Defence was given the opportunity to respond to the Prosecution’s submissions on sentence and tendered the DRSS and DFRSS in response. As much of what the Defence stated in its replies were matters already set out in the DSS, I will just summarise the main points put forward.

Reiterating why the Defence considered a fine was justified

499     First, the Defence repeated its argument that the alleged loss mentioned by the Prosecution as having been caused to the investors was hypothetical, speculative, and conjectural, since the Morgan Stanley bids had been refreshed at 10:23:42 a.m. and were no longer firm, valid or executable, and there was also no evidence of the theoretical “refreshed” bid price. The Defence also repeated the position that by investing in SP1, SCL and other SP1 investors represented and warranted that they were aware of the inherent risks in their investments and of the methods by which the assets of SP1 were held and/or traded, and they could bear the risk of loss of the entire investment.

500     Second, notwithstanding the finding of this Court that the accused was a fiduciary vis-a-vis the SP1 investors, and that the accused had breached his duty to obtain the highest available prices for the MIE bonds, the Defence reiterated that there was no specific written law, rule, regulation, policy, guideline or contract which prescribes the steps that the accused has to take in connection with the passthrough, or to deal with the accused’s potential conflict of interest between SP1 and SP5. Further, even where a breach of fiduciary duty was established, the Defence argued that this does not automatically translate to an aggravating factor. Instead, the Defence argued that in Loo Kiah Heng, where one of the accused was a senior fund manager at a fund management company, the Court accepted at [49] that in almost every case of market misconduct, some degree of abuse of trust was involved, and this factor in itself should not be aggravating.

501     Third, the Defence repeated its claim that the offences were not premeditated.

502     Fourth, the Defence reiterated that the offences were not sophisticated even based on the findings made by the Court. In this regard, the Defence disputed the Prosecution’s claim that the accused did not engage in genuine price discovery, that the use of the two separate chats with Pareto to conduct the passthrough was ““unnecessary and a charade”, or that the alleged lie made by the accused to Ms Goyal (where he stated “all or nothing”) at 10:48:01 a.m. after the passthrough had been concluded, were evidence of sophistication.

503     Fifth, the Defence repeated its position that the accused did not conceal his involvement. Further, as regards the issue of difficulty in detection, the Defence cited the District Court decision in PP v Soh Guan Cheow Anthony [2015] SLR 190 (“Anthony Soh (DC)”) to argue that difficulty of detection was a factor that was inherent to most if not all market misconduct cases under s 201(b). Thus, this factor cannot in itself be aggravating. Instead, the Defence submitted that, on the basis of Lee Chee Keet, it was the obstruction of detection that was more relevant in sentencing rather than difficulty in detection, and that in the present case, there was no evidence of any obstruction of detection.

504     Sixth, the Defence reiterated the argument that any subsequent profits that were made by SP5 were entirely fortuitous. Given the volatile, chaotic, and difficult market conditions in January 2016 (which the Prosecution’s experts accepted), and the inherently risky nature of commodity-linked securities, the Defence argued that there was no guarantee or certainty that prices for the MIE bonds would have rebounded or recovered. In any event, the Defence argued that profit or gain was not determinative of whether a custodial sentence should be imposed. Further, on the issue of profits made by the accused, the Defence disputed the Prosecution’s claim that the accused made total gains of US$1,121,750 (or around S$1,468,304) as a result of his offences. Instead, the Defence highlighted the following arguments:

(a)     The appropriate measure of profit was the difference between the amount SP5 would have paid for the MIE bonds if it had purchased the MIE bonds at the Morgan Stanley bid prices, less the actual price SP5 paid for the MIE bonds in the passthrough on 19 January 2016. The profit should also be calculated as of 19 January 2016 because, at the time the passthrough was conducted in January 2016, there was no certainty that prices for the MIE bonds would have rebounded or recovered. SP5 took on the risk of the bonds and any profits it subsequently derived were entirely fortuitous. The coupon rate/interest for the MIE bonds should also be considered in the calculation. All in all, based on the calculations by the Defence, they arrived at a sum of US$317,587.50 as the eventual gain by the accused from the passthrough trades, accounting for his shareholding in SP5 as of 19 January 2016 of 94.1%. In this regard, the Defence did not consider the accused’s indirect interest in SP5 that he held through OAIP. The Defence’s calculations are tabulated below.

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(b)     In addition, the Defence referred to the case of Madhavan Peter v PP [2012] 4 SLR 613 (“Madhavan Peter”) to argue that:

(i)       In quantifying the amount of loss/profit caused by any offence, the Court will assess whether the loss/profit was attributable to extraneous factors and if such factors were unrelated to the accused person’s breach(es) under the SFA. Thus, in Madhavan Peter, the High Court held that it was overly simplistic to compute the loss avoided by the offender Chong in committing the offence of insider trading by reference to the traded price of the Airocean shares roughly two months after the offence took place because the subsequent drop in Airocean’s share price could also be attributed to other reasons unconnected to the offence (such as a failed joint venture).[note: 299]

(ii)       Accordingly, quite aside from the argument that there was no certainty, as of 19 January 2016, that the prices of the MIE bonds would rebound or recover and that it was entirely fortuitous that they did, the Defence argued that by parity of reasoning to Madhavan Peter, it would be overly simplistic and inappropriate to consider the profit made by the accused in the subsequent sales of the MIE bonds to the market in March and April 2016 as part, if not all, of the profits made, arguably arose because of the recovery or rebounding of the oil market and other market forces that were not attributable to or a result of the accused’s conduct in relation to the passthrough trades on 19 January 2016.

(iii)       Thus, even if the accused had conducted the passthrough trades on 19 January 2016 at the Morgan Stanley bid prices, SP5 would still have earned profits from the subsequent sale of the MIE bonds. Taking into account the coupon rate/interest and the accused’s 94.1% (direct) shareholding in SP5 as of January 2016[note: 300], the amount of profits made by the accused would still be US$317,587.50.[note: 301]

(c)     Further, and in the alternative, since the charges concerned the passthrough trades from SP1 to SP5, the relevant gain under consideration should be the gain made by SP5 from the sale of the MIE bonds, and the corresponding 94.1% share of such gains attributable to the accused having regard to his shareholding in SP5 as of 19 January 2016.[note: 302]

(i)       The Defence argued that this would amount to US$599,691.45, with the sum derived from the difference between:

(1)       the total of (i) SP5’s actual selling price of the MIE18 to Morgan Stanley and Goldman Sachs and (ii) SP5’s actual selling price of the MIE19 to SP9, using the actual prices SP5 purchased the MIE bonds via the passthrough trades, less

(2)       SP5’s actual buying price paid for the MIE bonds.

The calculations are summarised in the table below:

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(d)     Thus, by any of the calculations in [(a)] and [(c)] above, the Defence argued that the financial impact of the passthrough trades was far lower than that quantified by the Prosecution of US$1,121,750 (or around S$1,468,304). Instead, the profits were either US$317,587.50 or US$599,691.45.

505    Further, based on a lower profit figure of US$317,587.50, and bearing in mind that the accused no longer works in the fund management industry and has learned from his past conduct, the Prosecution’s submission that deterrence would not be achieved even if the maximum fine of S$250,000 is imposed, no longer stands. Instead, a high fine was appropriate and proportionate given all the circumstances of the case, particularly in the absence of any written law, rule, regulation, policy, guideline or contract concerning the accused’s conduct, and also in light of the fines imposed in Ng Sae Kiat and Cheong Hock Lai.

Alternative proposal of aggregate sentences of 3 weeks’ imprisonment

506    On its alternative proposal of a custodial sentence of not more than 3 weeks’ imprisonment per charge (with the sentences to run concurrently), the Defence reiterated that this proposed sentence was consistent with sentences imposed in the following cases with more aggravated facts:

(a)      Lee Chee Keet: The offender here profited in excess of S$573,500. The Court imposed 4 months’ imprisonment for each of the 2 charges, to run concurrently despite more aggravating facts.

(b)      Loo Kiah Heng: Loo earned profits of over S$842,000 and Soh benefited by way of a positive impact on his annual income and bonus. The Court imposed 1 - 2 months’ imprisonment per charge on Loo, with 2 terms to run consecutively (totalling 4 months) and 4 months’ imprisonment on Soh per charge, with 2 terms to run consecutively (totalling 8 months).

Prosecution’s Reply Submissions (“PRSS”) and Prosecution’s Further Reply Submissions (“PFRS”)

507    The Prosecution disputed both the factual assertions made by the Defence, as well as arguments put forward for a lighter sentence to be imposed. Amongst other things, the Prosecution argued that the Defence had relied on claims that were contrary to the evidence and findings of the Court and that the cases that the Defence relied on were distinguishable and did not assist the accused. I reproduce the crux of the Prosecution’s reply submissions below.

Defence’s claims contradicted the Court’s findings and the evidence

508    The Prosecution highlighted that the following claims made by the Defence had not been accepted by the Court:

(a)      First, the claim that the accused was under “extreme time pressure” to liquidate the SP1 portfolio and had allocated a 30-minute window to sell the bonds on the morning of 19 January 2016.

(b)      Second, the Defence’s claim that the accused had reached out to 11 counterparties and sought to engage with them to the best of his abilities, contradicted the Court’s findings that the accused never carried out genuine price discovery for the MIE bonds.

(c)      Third, the Defence’s argument that Mr Lai and Mr Koh were involved in the settlement of the trades but did not raise any issues with them was misconceived and of no mitigating value. For one, Mr Lai did not know what the accused knew, which was that there were higher available bid prices for the MIE18 and MIE19 bonds. The response (or lack thereof) of Mr Koh was irrelevant because he was essentially an operations and settlements specialist[note: 303], who would presumably not be able to assess whether the trades carried out by the accused were at market prices. In any event, even if other people may have been aware that the accused had committed offences but did not report him, this could not be mitigating.

(d)      Fourth, the Defence’s claim that SCL requested information on the redemption and that the accused gave his approval for such information to be provided although SCL chose to not access this information, was an inaccurate and irrelevant characterisation of the facts. While SCL had requested for the “trade logs”, this would only have shown the details of the trades conducted, for example, the buyers of the assets and the prices[note: 304], but would not have shown the full range of bids that the accused had received for the MIE18 and MIE19 bonds before he carried out the trades. Thus, even if the trade logs had been given to SCL, they would not have shown that there were higher available bid prices that the accused knew of.

(e)      Fifth, the Prosecution challenged the Defence’s reliance on the argument that there was a lack of any written law, rule, regulation, policy, guideline or contract at the material time to guide the accused on how to properly carry out the passthrough trades, as well as the fact that the MAS guidelines on best execution only came into effect after the MIE bonds had been traded. The Prosecution also disputed the Defence’s claim that it was not unreasonable or illegitimate for the accused to believe that Pareto would ensure fairness in the passthrough trades.

(i)       In this regard, the Prosecution highlighted that the Court had stated that it is not surprising that there were no written requirements on the accused’s specific conduct because “it was not reasonable to expect every single aspect of the portfolio manager’s role to be set out in minute detail nor could every single scenario … be planned or envisaged”.[note: 305] Instead, based on the accused’s own admissions, it was clear that the accused knew that he ought to have sought out and sold the MIE bonds at the highest available prices and that he should have done genuine price discovery. The accused was also aware that he was in a conflict of interest position. In particular, the accused knew that the passthrough trades were not based on the highest available prices when he conducted them.

(ii)       Further, on the role of Mr Reshad and Pareto, the Court had found that Mr Reshad would not have been able to ensure against impropriety or illegality. Additionally, the Court agreed with the Prosecution that there was no basis for the accused to have expected or believed that Mr Reshad or Pareto would do price discovery for the MIE18 and MIE19 bonds.

(f)      Sixth, the Defence’s contention that there was no actual loss to investors was again contrary to the evidence and the Court’s findings that the accused had not fulfilled his duty to obtain and sell the MIE bonds at the highest available prices for SP1 investors and that this resulted in a loss to them, as the bonds were traded at prices lower than the bids that Morgan Stanley, BNP and SC Lowy had given.

(g)      Seventh, the Defence’s claim that the acts of the accused were neither planned nor premeditated was also contradicted by the Court’s findings, as the evidence showed that the accused had intended to use SP5 to purchase the bonds before Haitong provided its bids at 10:08:05 a.m. because he liked the MIE bonds. Therefore, the arrangements that the accused had set up with Mr Reshad before 19 January 2016 were all in preparation for the sale of the bonds to SP5. The accused’s offending was also not done on the spur of the moment but was instead envisioned and planned beforehand, and the accused never expected Mr Reshad to do independent price discovery nor did he tell Mr Reshad that he was the majority shareholder of SP5. The inference from all these facts was that the accused never intended to carry out the sale of the MIE bonds at prices that would benefit SP1 investors. Instead, he did so with the motivation to benefit himself and to cause the investor’s loss.

(h)      Eighth, the Defence had argued that the accused had no motive to cause losses to SP1 investors or to benefit himself as the majority shareholder of SP5. However, even if, as the Defence alleged, there were other allegedly “more logical or easier” options available to the accused if he indeed had such a motive, the existence of these possibilities does not detract from the fact that the accused had breached his duty knowing he would cause loss to SP1 investors and his motive was for gain to himself. Thus, the fact that the offences were not committed in other possible ways could not be mitigating.

509    In addition, the Prosecution argued that despite clear evidence against the accused, as well as the findings made by the Court, the fact that the accused still insisted on his version of facts so as to get away with a light sentence showed a total lack of remorse on his part.

Authorities and precedents cited by Defence did not assist the accused

510    The Prosecution also submitted that the authorities cited by the Defence were unhelpful to the accused.

511     First, as regards the case of Foo Jong Kan, which the Defence cited to argue that under the SFA, the Court would consider the harm or damage that was caused to determine if a custodial sentence was warranted, the Prosecution highlighted that in the subsequent case of Lee Chee Keet, the High Court had clearly considered the quantum of gain as an aggravating factor in market misconduct cases (at [46]). On the facts of that case, the High Court took into account the appellant’s substantial gain in deciding to dismiss his appeal against the sentence of imprisonment (at [55]).

512    In the present case the accused reaped significant financial benefits of US$1,163,023.12 (or around S$1,522,328.06)[note: 306], and deterrence would not be achieved even if the maximum fine was imposed because the accused would then have benefitted and got away with most of his ill-gotten gains.

513     Second, as regards the case of Ng Geok Eng, which the Defence had cited for the proposition that a fine would generally be appropriate for a s 201(b) offence that does not involve deception of an innocent member of the investing public, the Prosecution made the following arguments:

(a)     The Court in Ng Geok Eng had made clear at [49] that in a case of unauthorised trading under s 201 of the SFA, the sentence imposed

…should reflect the extent to which each species of offending conduct impinges upon the interests of public investors ... In addition, the prejudicial effect of such unauthorised trading would be particularly pronounced where the offender is the broker or remisier of the innocent investor whose account has been used. Apart from the detriment suffered by the particular investor, such events would clearly be inimical to the fair and open running of our securities market. Public confidence in the securities market would be severely undermined if the investing public is not able to trust the relevant industry professionals. The need to ensure general deterrence is therefore sufficiently pressing to warrant the imposition of a custodial sentence in the general run of cases imbued with these characteristics.

[emphasis added]

(b)     Further, at [50] of Ng Geok Eng, the Court implied that where unauthorised share trading was carried out without the consent of the investor of the trading account, there was an abuse of the broker-client relationship. The Court then cited the case of PP v Goh Bock Teck [2002] SGHC 322 (“Goh Bock Teck”) where the then-DJ Mavis Chionh had at [15] had stated the following:

In sentencing the accused, I was conscious that the sentence should address the need to deter other like-minded individuals. For this reason, I did not agree with defence counsel that a fine would be adequate punishment. The trust which is reposed in dealer’s representatives by their clients is an important element of their relationship; and indeed, one of the “givens” of the securities industry. In committing the present offences, the accused abused that trust. A message has to be sent to all other would-be offenders that such conduct will not meet with a mere fine.

[emphasis added]

(c)     The above observations in Ng Geok Eng and Goh Bock Teck clearly demonstrated that one of the core factors that the Court should consider aggravating was where there was an abuse of position or trust by securities industry professionals in relation to their investors.

(d)     In the present case, the accused was entrusted with investors’ monies and owed a duty to his investors to obtain the highest available prices. Instead, the accused abused the trust given to him by his investors to intentionally cause them loss, and at the same time to benefit himself. Thus, the imposition of a custodial sentence would be in line with the principles set out in the above cases.

(e)     In addition, the High Court had opined at [49] - [50] of Ng Geok Eng that where there was a lack of consent emanating from the securities firm for unauthorised share trading, the public interest in deterring such conduct would be considerably less significant as compared to a situation where there was a lack of consent from the investors. The Court there also found that no loss had been caused by the offender’s use of other persons’ accounts in that case (see [81]). In contrast, in the present case, the accused’s acts had caused substantial losses to the SP1 investors.

514     Third, the Defence had relied on Shapy Khan to argue that if the offender had been able to pay a fine, the Court would have imposed the maximum fine. The Prosecution, however, argued that the Defence’s reliance on Shapy Khan was misplaced and the case was distinguishable as the losses sustained there only amounted to S$31,199.67 (at [10]). Further, the accused in Shapy Khan did not benefit from the crime though he stood to gain (at [18]).

515    In short, the Prosecution argued that the authorities cited by the Defence to argue that the custodial threshold was not crossed were either irrelevant or that they in fact supported the Prosecution’s sentencing position.

516    The Prosecution also distinguished the sentences in other cases relied on by the Defence.

(a)      First, the case of PP v Ng Hock Ching and Lau Voon Kien and Lim Wai Meng Benny [2017] SGDC 142 (“Ng Hock Ching”) was distinguishable as there was no evidence of loss caused in that case. Further, there was no breach of duty or abuse of trust unlike in the present case. The present case was also more serious as it involved substantial losses to investors who had entrusted monies to be invested and managed by the accused. In contrast, in Ng Hock Ching, Ng’s profit was only $36,000, and he was sentenced to $150,000 for each s 201(b) charge after trial. The other offenders, Lau and Lim, were sentenced to a fine of $30,000 each as they committed the offences on account of their friendship with Ng and their culpability was lower.

(b)      Second, the case of Ng Sae Kiat was distinguishable because:

(i)       The High Court there was primarily constrained by the parity principle in deciding to impose a fine, even though the High Court agreed with the Prosecution that a custodial term would ordinarily be warranted. At [64], the Court had stated:

We broadly agree that the aggravating factors highlighted by the Prosecution warrants a custodial sentence. In our judgment, custodial sentences would ordinarily be warranted where employees in a financial institution abuse the duty of fidelity they owe their employer in a premeditated and brazen manner, over a period of time, for personal gains…Therefore, ordinarily it would be appropriate to impose custodial sentences on an offender whose offences are of the same type, scale and gravity as that of the Respondents’ offences.

(ii)       However, at [72], while acknowledging that a custodial sentence was otherwise warranted, the Court decided that the parity principle prevented the imposition of a custodial sentence because another individual involved in the matter, one Vincent Tan, had been sentenced to fines for the same offences and his case could not be meaningfully distinguished from the cases in Ng Sae Kiat. The Court even described Vincent Tan as the “real villain” in the case and noted that the four offenders it dealt with had decided to plead guilty after Vincent Tan had pleaded guilty and received a fine. Thus, it was not unlikely that they had factored in Tan’s sentence in deciding to plead guilty. It was for this reason that the Court eventually declined to interfere with the sentences imposed by the DJ and did not impose a custodial term on the four offenders in Ng Sae Kiat.

(iii)       Additionally, Ng Sae Kiat was distinguishable from the present case as there was full restitution of profits made (at [37(a)]); there was no actual loss eventually because the brokerage company that was deceived had frozen the funds in the accounts used for the trades (at [63(h)]); and the largest amount of financial gain to the offenders was (only) $45,000 (at [17]).

(c)      Third, as for the case of Sia Teck Mong, there was similarly no loss or gain caused (see [5], [9] and [17]). Further, there was no evidence that the securities house suffered any additional prejudice above being deceived into a contravention of a practice note, and there was no indication of any damage suffered by any person (at [15]).

(d)      Fourth, Cheong Hock Lai was distinguishable from the present case as the highest profits made in Cheong Hock Lai were $62,931.90 (for the proceeded charges) and $107,925.29 in total (including the TIC charges) (at [13]). Further, the wrongful acts were committed when the respondents were trading on their own accounts and thus there was no clear abuse of position to the detriment of investors (at [30] and [38]).

A graduated approach should not be adopted

517    The Prosecution also disputed the Defence’s reliance on the case of Siow It Loong for the adoption of a graduated approach where there was no written source to indicate to the accused that what he did was wrongful or should have been avoided.

518    Instead, the Prosecution argued that the DJ’s proposition in Siow It Loong was very broad, and does not seem to have been derived from any established sentencing principle, any case law, or any academic publication. Further, the 2008 decision of Siow It Loong has not been cited since, nor has it been considered or endorsed in any reported case in the High Court. Even for State Court cases, the only reported case that had considered the proposition in Siow It Loong was Loo Kiah Heng. Even then, the DJ had stated at [46] that she “…preferred the view that if a course of conduct was not clearly illegal but the persons involved wanted to embark on it to test the limits of permissible activity, then they would have to bear the consequences of their conduct.” In any event, the Prosecution argued that the case of Siow It Loong differed significantly from the present case for the following reasons:

(a)      First, the trades carried out in that case did not involve any abuse of trust of investors.

(b)      Second, the profits made by the two accused persons in that case were totally not comparable, i.e. $4,825 and $6,592 with the profits made by the accused in the present case.

(c)      Third, the trades carried out by the accused in the present case, in contrast with those in Siow It Loong, involved the calculated abuse of the accused’s position to intentionally cause loss to his investors and at the same time, to cause gain to himself. This was not the type of conduct that was deserving of a graduated approach, even if there should be such an approach in law. Instead, the Prosecution submitted that the conduct of the accused in the present case harms investors and undermines investor confidence in the fund management industry and must be deterred by a substantial imprisonment sentence.

The accused’s total gains

519    Aside from the total amount of loss of US$342,500 caused to the SP1 investors as a result of the accused not using Morgan Stanley’s higher prices, the Prosecution initially argued that the accused had made total gains of US$1,121,750 (or around S$1,468,304) as a result of his offences (see [493(e)(ii)] above). Subsequently, the Prosecution revised this figure upwards to US$1,163,023.12 (or around S$1,522,328.06), bearing in mind inter alia that the accused also held 83.6% share in OAIP[note: 307], which in turn held an additional 5.9% of the shares in SP5 at the material time.

520    Effectively, this meant that the accused held an additional 4.9% (5.9 x 83.6/100, rounded up to the first decimal point) interest in SP5 that has to be added to his direct holding of 94.1% in SP5. Thus, in total, the accused’s shareholding in SP5 - both direct and indirect - was 99% (94.1% + 4.9%). (see PFRSS at [10] and the table reproduced below).

Description

Actual Buying

Price +

Interest (US$)

Actual Selling

Price + Interest

(US$)

Coupon payments

received by SP5 / SP9

(US$)

Actual Gains

(US$)

Sale of MIE18 (by SP5 to market)

716,276.04

1,225,755.20

85,937.50

595,416.66

Sale of MIE19 (by SP9 to market)

356,875.00

879,979.17

56,250.00

579,0354.17

Total

1,174,770.83

The accused’s gains, i.e., 99% of total

1,163,023.12 (or around S$1,522,328.06)



521    The Prosecution also referred to the case of Lee Chee Keet, where the appellant, who was under a moratorium imposed by the SGX on the transfer or disposal of his shareholdings in SNF Corporation Limited (“SNF”) for one year after the listing of SNF, had deceptively used nominees to circumvent this moratorium and disposed of his shareholding in SNF. A total of 15,931,900 SNF shares of his were sold by nominees in breach of the moratorium in three tranches, two in the open market and one through an off-market transaction, with the proceeds of the sale being approximately S$5.73 million, which were then channelled back to the appellant.

522    On the issue of the personal gain of the appellant for the purpose of the appeal against sentence, the High Court there considered (at [42] to [47]) the submission of the Defence in the lower court that the appellant only enjoyed a gain of S$573,548.40, being the difference between the price at which he sold the SNF shares in breach of the moratorium, and the price at which the SNF shares would have been sold had he complied with the moratorium. The High Court did not seem to have given credence to this argument because it observed that the appellant had gained handsomely, that his gains were not wholly fortuitous and not some unexpected windfall for him, nor did they flow to him purely by circumstance. The Court added at [44] 521 that “[i]f the post-IPO share prices had fallen, presumably he would have simply bided his time until he felt the time was right to sell”, and that the appellant had gained “from having engineered for himself the flexibility of cashing out within the period of the moratorium and at opportune times when he was not supposed to have done so.”

523    The Prosecution thus submitted that a parallel could be drawn between the present case and the observations of the High Court in Lee Chee Keet, as in the present case, the accused could similarly determine when and how he sold the MIE bonds to the market after he had bought them into SP5 in breach of his duty.

524    As for the subsequent sale of the MIE bonds from SP5 and SP9, the Prosecution pointed out that the accused always knew about their sale by Mr Lai, since the latter had to report to the accused and needed the accused’s approval before trading them. Thus, the accused had control over when and how these bonds were sold and he permitted Mr Lai to sell them to the market from SP5 and SP9 in a manner that resulted in significant total profits to the accused of US$1,163,023.12 (or around S$1,522,328.06).

525    The Prosecution also argued that the present case was significantly different from Madhavan Peter where the offender Chong did not have any control over the losses he would have avoided as a result of subsequent market price movements. Instead, in the present case, the accused alone could decide when to realise his profits from the price movements in the market.

526    The Prosecution thus reiterated that the gains made by the accused were not fortuitous, since he had full knowledge of and control over when and how the MIE18 and MIE19 bonds could be sold, and he had also bought them via the passthrough trades because he liked the bonds and "believed [these bonds] will recover”.[note: 308] Clearly, he saw potential in them, and approved for them to be sold at a time when profits could be realised.

527    The Prosecution further disputed the Defence’s argument that the profits from the sale of the MIE bonds to the market would have eventuated even if the accused had bought the bonds from SP1 into SP5 at the Morgan Stanley prices. Instead, the Prosecution argued that this claim was speculative since had the accused done genuine price discovery and acted properly, he would likely have sold the MIE bonds to Morgan Stanley and BNP at the highest available prices for the MIE18 and MIE19 bonds, and hence there would have been no profits to SP5 to talk about.

528    Thus, the Prosecution submitted that the Court should, in sentencing, consider the financial gain that the accused had in fact received, i.e. S$1,522,328.06. This large gain would not have been made if not for the accused’s offences.

Little or no weight should be given to the mitigating factors

529    The Prosecution argued against reliance on the factors that the Defence had cited as mitigating in nature.

530     First, the Prosecution submitted that the accused’s lack of antecedents and plea of guilt could only be a neutral factor at best in the face of the need for deterrence.

531     Second, while the Defence argued that the accused was of good character by providing one testimonial from his secondary school friend and further that the accused had provided “substantial” public service by completing his mandatory NS obligations, the Prosecution submitted that these arguments should be given no weight as his completion of NS obligations was no different from what many other male citizens and Permanent Residents have done. Further, the High Court in Leong Sow Hon v PP [2021] 3 SLR 1199 (“Leong Sow Hon”) had held that courts should place limited weight on past contributions.

532     Third, the Prosecution disputed various other claims made by the Defence including the argument that there was no premeditation involved, that the acts of the accused were not part of a sophisticated or elaborate scheme, and that the offences took place on a single day. The Prosecution submitted that the present offences were premeditated, and the fact that the offences took place on a single day could not be considered on its own but has to be considered in the context of the accused’s abuse of the trust given to him by the SP1 investors, the loss he caused to them, and the gains he made for himself.

533     Fourth, while the Defence claimed that the accused had cooperated with investigations by attending no fewer than five interviews by the investigator, the Prosecution argued that this could not, in itself, be a mitigating factor because the accused was required by law to attend such interviews. Further, he had not cooperated with investigations since it could be seen that the answers he gave were evasive and self-serving.

534     Fifth, as for the Defence’s argument that there had been a significant delay in these proceedings and a lower sentence was therefore warranted, the Prosecution submitted that there was little merit in the Defence’s submission.

535    Instead, the Prosecution highlighted the recent decision of Menon CJ in Wong Poon Kay v PP [2024] SGHC 91 (“Wong Poon Kay”), where an 11-year delay in prosecution (from 2 March 2010, when investigations began, to 4 June 2021 when the accused was charged) was not found to be inordinate. Instead, at [66], Menon CJ held that the test was whether the Court was “satisfied that there has been inordinate delay that is attributable to the Prosecution and that the accused person has suffered unfair prejudice as a result”. His Honour had also made clear that an inordinate delay was one that was “unusually long and not explicable by reasonable grounds” (see [68]). Further, Menon CJ cited Ang Peng Tiam v Singapore Medical Council and another matter [2017] 5 SLR 356 (“Ang Peng Tiam”) where at [113], the Court explained that whether there was an inordinate delay was “not measured in terms of the absolute length of time that has transpired, but must always be assessed in the context of the nature of investigations”. This was obviously a fact-sensitive inquiry.

536    In the present case, the Prosecution argued that there has similarly been no inordinate delay.

(a)     In this regard, as could be seen from the trial, the evidence in the present case was complex and voluminous. The First Information Report was received by MAS on 20 February 2017, and from the evidence adduced at trial, it was evident that extensive investigations were required, Such investigations included the following:

(i)       Obtaining and reviewing voluminous documents and other evidence from OAIP, APEX, Bloomberg, and market participants (e.g., Bloomberg chats with BNP, Morgan Stanley and Pareto);

(ii)       Conducting five interviews and recording statements from the accused, where he was evasive and uncooperative; and

(iii)       Interviewing all relevant parties including Mr Lai, Mr Goh, Mr Reshad, the SCL representatives, and Ms Megha Goyal from Morgan Stanley amongst others.

(b)     The accused was charged on 22 October 2020 which was about three years and eight months later. The Prosecution pointed out that the period of time to be looked at when considering whether there has been an inordinate delay was the time the Prosecution took to bring the present charges against the accused (see Pigg, Derek Gordon v PP and another matter [2022] SGHC 5 at [104]), and the time taken for trial was to be excluded from this analysis.

(c)     In this regard, the Prosecution submitted that the time taken to investigate and review the case against the accused was amply justified and would in no way amount to an inordinate delay.

537    Further, the Prosecution submitted that there was also no evidence of any unfair prejudice caused to the accused.

(a)     Regarding the Defence’s complaints concerning bail, the Prosecution highlighted that the bail condition that the bailor cannot travel with the accused was a standard bail condition imposed on all accused persons. Further, it was open to the accused to ask another bailor, who was not his wife, to be his bailor, if he wished to have his wife travel with him. Since he chose not to, or even if he could not, it does not lie in the accused’s mouth to complain that this situation amounted to mistreatment, when it was he who put himself in that position. This was also part of the necessary process and consequence of a person being charged with an offence.

(b)     On the separate matter regarding its conduct of the trial, the Prosecution pointed out that it was legally permissible and indeed not unusual for parties to decide to include new witnesses or to serve new documents. As for the first and second amendments made to the charges, these were merely to edit the phrasing of the charges and to correct typographical errors (e.g., “offer” to “bid”), and were done before the trial commenced. The third set of amendments, effected during the trial, was granted by the Court under s 128 of the CPC. As explained during the trial, the Prosecution had applied for the amendments to make clear that the bid for the MIE18 and MIE19 bonds was provided by Morgan Stanley earlier, i.e., at 10:01:24 a.m. and 10:09:34 a.m. before the sale of the bonds from SP1 to SP5 via the passthrough at around 10:41:14 a.m.. This was obvious from the evidence adduced by the Prosecution at trial and has been the Prosecution’s case. Also, the Defence had cross-examined the witnesses on the evidence, and hence the amendments did not prejudice the accused.

538     Sixth, as for the Defence’s argument that arising from the investigation and present charges, the accused had suffered significant reputational damage and has not been able to work in the fund management industry as a fund manager, thereby resulting in a loss of job opportunities, such an argument was expressly rejected by the High Court in Stansilas Fabian Kester v PP [2017] 5 SLR 755 (“Stansilas”). In that case, the offender had argued that he was already punished by facing disciplinary proceedings in the army and would suffer from adverse consequences at work. In rejecting these arguments, and regarding them to be irrelevant, Menon CJ stated at [111]:

A person who breaches the criminal law can expect to face the consequences that follow under the criminal law. Whether or not such an offender has already or may as a result suffer other professional or contractual consequences should not be relevant to the sentencing court.

539    In summary, the Prosecution submitted that there could no doubt that the accused’s offences were serious, and that the Defence’s submissions for a non-custodial sentence were unmeritorious, unprincipled, and unsupported by precedents, and that they trivialised the seriousness of the accused’s offending. Hence, the Prosecution repeated its submissions for a custodial sentence of 8 – 12 months’ imprisonment.[note: 309]

Decision on Sentence

540    I begin by setting out the approach that I would be adopting in sentencing before explaining how I arrived at the final sentence.

Approach to Sentencing

541    Both parties agreed that the appropriate sentence to be imposed should be determined with reference to the aims of the SFA, i.e. (a) the protection of investors; (b) the protection of public confidence in the market; and (c) ensuring that the operation of the market is not distorted (see Ng Sae Kiat). I further noted that at [58] of that case, the Court had made clear that:

(a)     Distortion of market information is not a necessary condition for a custodial sentence to be imposed in respect of a s 201(b) offence. It is important to bear in mind that s 201(b) is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities.

(b)     While recognising the aims of the SFA, the Court further noted that “…given the broad scope of offences criminalised in s 201(b), the absence of direct contravention of one of these aims should not necessarily preclude the imposition of a custodial sentence in respect of an offence under that section.”

542    In the present case, in deciding on the appropriate approach, I also considered the guidance provided by See Kee Oon JC (as he then was) in Lee Chee Keet. This was a case that both the Prosecution and the Defence referred to in their various submissions.

543    In Lee Chee Keet, See JC had considered earlier cases that dealt with offences under s 201(b) of the SFA and s 102(b) of the SIA (which was the predecessor of s 201(b) of the SFA), and also distilled the relevant sentencing principles and factors that should be considered for such offences. I have set out below some guidance provided by See JC in Lee Chee Keet.

(a)      First, at [22], See JC noted that in Cheong Hock Lai, it was observed that for charges under s 102(b) of the SIA (the predecessor of s 201(b) of the SFA), the common thread in all the cases in which custodial sentences were imposed for offences under s 102(b) of the SIA was that there was “a clear abuse of position by professional securities dealers vis-à-vis laymen investors who came to them for assistance and advice on trading” (at [38]).

(b)      Second, at [26], See JC disagreed with the proposition that the case of Ng Geok Eng, where the offender had pleaded guilty to and was convicted of three charges under ss 197(1) and 201(b) of the SFA as well as one charge under s 102(b) of the SIA, stood for the proposition that a fine should invariably be imposed in all types of cases brought under s 201(b) as long as the offence in question does not cause detriment to innocent investors.

(c)      Third, See JC also considered the case of Wang Ziyi Able. There, the respondent had been charged under s 199(b)(i) of the SFA with disseminating information that was false in material particulars on an online forum at shareinvestor.com, without caring whether this information was true or false. In allowing the appeal and sentencing the accused to six months’ imprisonment, V K Rajah JA squarely rejected the argument that a custodial sentence would only be appropriate where innocent lay investors had suffered losses. See JC thus commented that the decision in Wang Ziyi Able neatly debunks the appellant’s argument that prior to Ng Sae Kiat, the prevailing sentencing norm for a s 201(b) offence was a fine unless identifiable, innocent members of the public had been defrauded and had suffered losses. See JC also commented that this was also a salutary reminder that a period of incarceration may be appropriate even in cases where a fiduciary relationship or the offender’s position of authority over those affected is absent on the facts. (at [27])

544    In addition, See JC commented generally about the limitations in relying on sentencing precedents for s 201(b) offences. At [28], his Honour stated:

… the above cases illustrate the variety of offences and factual matrices that could be brought under s 201(b) of the SFA. Therefore, it may, in appropriate cases, be useful to have regard to sentences imposed for offences under other provisions of the SFA when determining an appropriate sentence for s 201(b) offences. It stands to reason that one should not readily assume that a sentence imposed in another s 201(b) case would invariably serve as a useful reference point simply because it also involved another offence for which a charge was preferred under s 201(b). It also follows that greater care must be taken when making reference to precedents involving s 201(b) as a guide to calibrating sentences.

[emphasis added]

Further, See JC added at [30] that:

…given the broad range of s 201(b) offences and the differing degrees of culpability of offenders, I was not convinced that a common and uniform “sentencing norm” should or can be established across all types of s 201(b) offences save for factors that could assist in assessing the public interest at stake which would in turn determine the type of sentence to be imposed.

545    In dealing with the appeal against sentence, See JC also set out certain considerations that are useful for our present case. I have summarised them below:

i)      The relevance of the factors in Ng Sae Kiat

To determine whether a custodial sentence is warranted, the non-exhaustive of factors set out by the High Court in Ng Sae Kiat at [58] , which are distilled from relevant precedents, was applicable i.e. that the court should consider: (a) the extent of the loss/damage caused to victim(s); (b) sophistication of the fraud; (c) the frequency and duration of the offender’s unauthorised use of the relevant account; (d) extent of distortion, if any, to the operation of the financial market; (e) the identity of the defrauded party (i.e., whether the defrauded party is a public investor or a securities firm); (f) relationship between the offender and the defrauded party; and (g) the offender’s breach of any duty of fidelity that may be owed to the defrauded party. I reiterate that these factors were distilled from relevant precedents and are therefore not new to this area of the law. (at [31])

…

As noted in Ng Sae Kiat, it is necessary to consider all the facts of the case to determine if the offending conduct in question warrants a custodial sentence. Not all the factors enumerated in Ng Sae Kiat might be relevant or applicable in every case and in determining the appropriate weight to be given to the pertinent factors, much would ultimately turn on the individual circumstances before the court. (at [32])

ii)      On personal gain as an aggravating factor

See JC accepted that the motive for the offence, and the quantum of gains made, are relevant aggravating factors in market misconduct cases, and that the commission of an offence for personal gain is generally an aggravating factor (see [46] – [47]). His Honour stated:

… I considered it established beyond peradventure that the motive for and the quantum of gain were relevant aggravating factors in market misconduct cases. In Wang Ziyi Able, V K Rajah JA stressed that the fact that the offender stood to gain from the gamble of making a false statement was an additional aggravating feature (at [24]). The same point was reiterated in Ng Sae Kiat where the High Court agreed that personal gain was an aggravating factor that warranted a custodial sentence (at [64]).” (at [46])

…

It is settled law that the commission of an offence for personal gain is generally an aggravating sentencing consideration... (at [47])

….

The appellant had hoped to gain by selling the shares during the period of the moratorium and he certainly did gain handsomely, even having regard only to the amount of $573,548.40 that was quantified by the defence in their submissions below. This gain far exceeds the gains made by several of the respondents in Cheong Hock Lai and Ng Sae Kiat. This gain far exceeds the gains made by several of the respondents in Cheong Hock Lai and Ng Sae Kiat. In Cheong Hock Lai, the respondents each made total profits ranging from $16,162.32 to $107,925.29. In Ng Sae Kiat, the respondents made profits ranging from $9,000 to $45,000.” (at [44])

[emphasis added]

iii)      As regards market impact

This could have been a relevant consideration but was not considered an aggravating factor on the facts of that case. See JC stated at [38]:

In the present case, notwithstanding the lack of evidence of actual quantifiable loss, the investing public was fed misleading information which had the potential to affect their investment decisions. It could be said that the integrity of the market was thus affected by the circulation of the misleading information and the appellant’s misconduct could have had potentially deleterious consequences for the financial market. …That having been said, there was no evidence about the materiality of such misleading information or its actual impact on the market. This in no way excuses or mitigates the appellant’s misconduct but I did not consider it appropriate to deem this an aggravating factor in the circumstances.

[emphasis added]

iv)      On premeditation, planning and efforts to avoid detection

See JC stated at [48]:

In my view, the high degree of premeditation and careful planning that went into creating the very elaborate scheme to secure the opportunity for gain while at the same time avoiding detection was a significant aggravating factor in favour of a custodial sentence.

v)      On the alleged delay in prosecution

See JC stated at [51].

I had no difficulty in accepting the general proposition that where there has been an inordinate delay in prosecution, the sentence should in appropriate cases reflect the fact that the matter has been held in abeyance for some time, possibly inflicting undue agony, suspense and uncertainty on the offender: Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 at [23]. However, it is clear from the District Judge’s grounds of decision that the substantial delay had been taken into account.… In any case, I would observe in passing that the degree of leniency that should be shown to the appellant to account for the delay in prosecution should be decided with the countervailing public interest in punishing and deterring serious market misconduct in mind.”

[emphasis added]

546    Based on the facts in Lee Chee Keet, See JC affirmed the decision of the DJ to impose an imprisonment sentence but reduced it from 6 months to 4 months, as he took into account “…the appellant’s cooperation with the authorities including his willingness to testify against his fellow director” (see [53]). Further, his Honour was of the view that the DJ had “…accorded undue weight to certain considerations in sentencing and had thus calibrated the sentence at a level which was inappropriately high.” (at [57])

547    Separately, I also considered the decision of the District Court in Loo Kiah Heng. As stated earlier, this case involved two offenders, one of whom played broadly the same role as the accused and was in a somewhat similar situation, in that he was a fund manager, and the offences were committed in connection with his position in managing a fund. This case was also referred to by both the Prosecution and the Defence in their sentencing submissions.

548    At [51] of Loo Kiah Heng, the Court commented that “…It must be impressed upon persons placed in positions of trust in investment houses and the like that they cannot misuse the assets placed in their care and expect to get away lightly.” The sentences imposed by the DJ were upheld on appeal. I will discuss this case in greater detail at a later part of these GD.

Why a custodial sentence rather than a fine should be imposed

549    I first deal with the issue of whether a custodial sentence or a fine should be imposed. For this purpose, I considered the relevant sentencing considerations, especially those referred to in Ng Sae Kiat, Lee Chee Keet, Loo Kiah Heng, and other relevant cases.

(1)    Huge losses caused to SP1 investors who had entrusted their investments to the accused to manage

550    On the extent of losses caused to investors, the Prosecution submitted that the losses caused in this case were very significant and totalled US$324,500 (about S$491,831) (see [493(a)] above).

551    On the other hand, the Defence’s primary position was that no actual loss was caused to the investors of SP1 (see [471]).

552    On the issue of loss caused to the SP1 investors, I accepted that based on the Morgan Stanley bids that were reflected in the charges that the accused was convicted of, the losses totalled US$324,500 (about S$491,831). This exceeded the sums set out in the cases relied on by the Defence, and was close to the maximum prescribed fine that could have been imposed for both charges taken together (i.e. S$500,000). I thus did not see it fitting to impose the kinds of fine imposed in Ng Sae Kiat or Cheong Hock Lai, or even the total fine of $300,000 suggested by the Defence as being the appropriate sentence, especially in light of other considerations which I will discuss further.

553    In addition, as noted earlier, the present case involved the accused who, as a portfolio manager of a sub-fund, SP1, was entrusted with and given full discretion to deal with the assets of SP1 on 19 January 2016. This was similar to the situation in Loo Kiah Heng involving the offender Soh, the fund manager who conspired with Loo to operate a fraud on Soh’s investment firm. At [54] of that case, the Court noted that the situation was more akin to a criminal breach of trust than the mere misuse of information or a trading account. This fact, combined with the manner in which the transactions were carefully executed and concealed, the length of time over which the offences took place, the scale of the resultant benefits to the accused persons, and the gravity of the corresponding loss suffered by the victim, led the Court there to conclude that a custodial term was necessary, even though the accused person Loo, was willing to disgorge the full profits of S$842,353.51.

554    I would add that many of the same, though not all, of the factors that applied in Loo Kiah Heng similarly existed in the present case, something which will be elaborated on further. On the other hand, there was no disgorgement of profits by the accused in the present case, unlike in Loo Kiah Heng where the disgorgement of profits by Loo was regarded as a very significant mitigating factor, that contributed to his aggregate sentence being four months’ imprisonment, as compared to the aggregate sentence of eight months’ imprisonment imposed on his co-accused Soh, the fund manager.

(2)    Profit as a motive and the huge personal benefits made

555    I next considered the profit motive for the present offences, and the quantum of gains made by the accused, all of which were recognised aggravating factors highlighted by See JC in Lee Chee Keat.

556    As pointed out by the Prosecution, the accused had indicated in his statement P82 that he decided to activate SP5 to buy the bonds even before his Bloomberg conversation with Haitong, because he liked the MIE bonds. The impetus for the commission of the offences was thus his desire to acquire the MIE bonds for SP5, the fund of which he had almost total ownership. This could be seen from his answer given to the CAD in P82 (Answer to Q674, 675 and 679 – reproduced below).

Question 674

Why did you not sell to Haitong?

Answer

I don't want to sell the Miehol bonds at the price of 25 for MIE18 and 20 for MIE19.

Question 675

Why did you not want to sell at the price of 25 for MIE18 and 20 for MIE19 to Haitong?

Answer

The price was too low, I was ready to buy the bonds at a slightly higher price than Haitong. The price Haitong gave was consistent with the market.

…

Question 679

Can we understanding your thinking at that time, on why did you not sell the bonds to Haitong but rather take them on yourself into SP5?

Answer

I was OK to take on the Miehol bonds at a slightly higher price than what Haitong quoted, because I like the bonds.

[emphasis added]



557    From the facts of the present case, it was not difficult to see why the accused had put in so much of his own money to fund SP5 (the buyer of the MIE bonds from SP1), and go through the very elaborate and urgent steps to set up the mechanisms and structures to carry out the passthrough trades using SP5 as his vehicle to purchase the MIE bonds. In addition, the accused had put in considerable effort and gone through significant trouble to liaise with Mr Reshad to prepare for the passthrough trades, just so as to ensure the passthrough of the MIE bonds from SP1 to SP5. The acquisition of these bonds from SP1 by SP5, clearly garnered the accused tremendous personal profits at the end of the day, whichever way one looks at it, even if I accepted the quantum of the accused’s profit as US$971,660.914 (S$1,472,705.56), the figure put forward by the Defence to me in court on 2 July 2024.[note: 310]

558    In this regard, at the point of sale of the MIE bonds by SP1 on 19 January 2016 at 10:41:14 a.m., and the purchase of the same bonds by SP5 at 10:44:57 a.m., even if one discounted the Morgan Stanley bids which the Defence argued were no longer executable by 10:41:14 a.m., there were outstanding BNP and SC Lowy bids for one or both of the MIE bonds at prices considerable higher than what SP1 sold, and what SP5 bought them, via the passthrough trades.

559    I further noted that the accused would in fact have made instantaneous gains after the passthrough trades, and could have even immediately cashed out and sold the MIE bonds on 19 January 2016 itself at a considerable profit. This he could possibly do, by onward selling (on behalf of SP5 after 10:44:57 a.m.) to BNP, SC Lowry or Morgan Stanley (whose Ms Goyal had informed him to “please refresh before trading”), all of whom were clearly still interested, and continued to maintain their desire to buy one or both of these bonds, even after the passthrough trades had already concluded (with Ms Goyal even asking the accused “Wei.. presume nothing on the MIEHOLs” at 10:45:02 a.m. – see P64). Further, in the case of BNP, Ms Tsang was actually interested not only in both the MIE bonds but also in the Indika bond as well.

560    However, the accused did not encash the MIE bonds for immediate gains on 19 January 2016. Instead, he chose to keep the bonds with SP5, likely because the accused liked the bonds and saw further potential upside. The accused’s decision was clearly well thought through and it was fully vindicated only two or three months later in March/April 2016 where, by the Prosecution’s calculations, the accused made much higher profits when he sold both bonds to the market for a total profit of US$1,163,023.12 (or around S$1,522,328.06)

561    In this regard, I accepted the Prosecution’s calculation of the profits made by the accused, since the accused held, directly or indirectly, shareholdings of about 99% of SP5, which was the buyer of the MIE bonds from SP1 (see [520] above). Hence, the accused was the clear and obvious beneficiary of the passthrough trades.

562    Further, the accused clearly could, and in fact did, determine, through his control and oversight of Mr Lai’s trading activities in SP5 and SP9 (which obtained the MIE19 bonds from SP5), the manner, timing and prices that the MIE bonds were onward sold by SP5 and SP9 to the market. These subsequent sales resulted in huge gains in profit for the accused who owned 99% and 100% of SP5 and SP9 respectively Indeed, this ability of the accused to control and determine the ultimate disposal and sale of the MIE bonds meant that he was fully able to control how the MIE bonds were dealt with, and hence reaped for himself huge profits of US$1,163,023.12 (or around S$1,522,328.06).

563    I further accepted the Prosecution’s argument (see [525] above) that, unlike the situation in Madhavan Peter, the accused here could, as Mr Lai’s superior and the person who had oversight of Mr Lai’s trading activities, ultimately control and decide how and when the MIE bonds would be disposed of. In this case, he decided on the disposal in a manner that resulted in huge gains for himself.

564    Clearly, in light of the vast profits made by the accused, even the maximum fine that could be imposed for both charges, which totalled only S$500,000, would be woefully insufficient, as the accused would still be unduly enriched by more than S$1 million afterwards. Imposing a fine in such circumstances would effectively be making a mockery of the justice system, as it would not only be completely inadequate and deficient as a punishment and a deterrent, but it may potentially even send out a perverse message that crime actually does pay, to the tune, in this case, of well over a million dollars.

565    I would add that in coming to the conclusion that imposing a fine as a punishment was completely misguided and inappropriate in the circumstances, I was guided by the words of See JC in Lee Chee Keet at [56] that “…the imposition of custodial sentences in appropriate cases was necessary to deter potential offenders who might otherwise be willing to risk a monetary slap on the wrist if and when they were apprehended (Wang Ziyi Able at [30])."

566    I also considered the Defence’s argument that given the volatile, chaotic, and difficult market conditions in January 2016, which the Prosecution’s experts accepted, and the inherently risky nature of commodity-linked securities, there was no guarantee or certainty that prices for the MIE bonds would have rebounded or recovered after they had been purchased by SP5.

567    However, such an argument ignored the fact that it was a considered decision of the accused to buy the MIE bonds as the portfolio manager and majority shareholder of SP5, and to decide on how to deal with the bonds thereafter. Neither of these were apparently ill-considered or illogical decisions, including the decision of the accused to hold onto the MIE bonds, which potential he obviously saw when he decided to keep them instead of immediately realising his considerable gains even on 19 January 2016 itself. His obvious faith in these bonds was realised and vindicated by the massive profits he subsequently made, which went well even beyond his initial already substantial gain that he could have immediately capitalised on, had he sold the bonds on 19 January 2016 after purchasing them from SP1.

568    Indeed, in light of the clear and complete control that the accused had over the dealings and disposal of the MIE bonds from SP5 (and SP9), I also agreed with the Prosecution that a parallel could be drawn with Lee Chee Keet, where in the context of the loss that the offender avoided there, the Court had observed at [44] that “[i]f the post-IPO share prices had fallen, presumably he would have simply bided his time until he felt the time was right to sell, and he would have done so if he deemed it expedient to reduce his exposure and minimise losses.”. The Court there had further remarked at [45] that the appellant had gained “…from having engineered for himself the flexibility of cashing out within the period of the moratorium and at opportune times when he was not supposed to have done so.” (see [521] above)

569    In the present case, being the person who oversaw and approved how Mr Lai would and could deal with the MIE bonds, being the majority shareholder of SP5 (with direct and indirect shareholdings of 99%), and finally also being the sole shareholder of SP9, the accused had obvious control as to how, when and how much the MIE bonds would be sold to the market, and this was eventually done resulting – as stated earlier - in huge gains to the accused himself of US$1,163,023.12 (or around S$1,522,328.06).

570    All things considered, the massive gains that the accused made, and his obvious profit motivation for the offences would, in line with the guidance of See JC in Lee Chee Keet, be clear aggravating factors.

(3)    Sophistication of the offence/Premeditation/Planning:

571    Moving on to considering the sophistication of the offences, and related factors such as the presence of premeditation and planning, the evidence already discussed showed that the accused had intentionally effected the sale of the MIE bonds from SP1 to SP5 through the passthrough trades, and did so otherwise than at the highest available prices and with the requisite knowledge that he would cause loss to the SP1 investors and also gains for himself. He clearly could have sold the MIE bonds to Morgan Stanley when they made much higher bids or sought a “refresh before trading” of the bonds with Morgan Stanley as Ms Goyal displayed consistent interest in the MIE bonds. Alternatively, the accused had the option of selling the MIE bonds to the other interested counterparties (BNP and SC Lowy) which were also offering higher prices (for one or more of the MIE bonds) than the prices offered by Haitong. Further, the accused could have used the higher prices that Morgan Stanley, BNP and SC Lowy offered when conducting the passthrough trades, but he did not.

572    In addition, the evidence indicated that the accused did not engage in genuine price discovery, but yet engaged with 11 counterparties, when it would be usual and/or sufficient to engage three to five counterparties as per Ms Low’s evidence while claiming that he wanted to avoid the perception of a fire-sale.

573    There was also evidence that even before engaging the counterparties on 19 January 2016, and specifically even before Haitong provided its bids at 10:08:05 a.m., the accused had intended to use SP5 to purchase the bonds because he liked the MIE bonds. This would explain the elaborate arrangements made by the accused to set up and prepare SP5 before 19 January 2016, and to liaise with Mr Reshad before the passthrough trades on 19 January 2016[note: 311], all for the purpose of effecting the passthrough trades of the MIE bonds to SP5 on 19 January 2016.

574    Other evidence of the elaborate nature of the offences, and the deliberation involved, included the accused’s use of one-on-one chats with Mr Reshad, his deceptive message to Ms Goyal after she asked him whether he was still interested in trading with her (after he had conducted the passthrough trades), and even his alleged lack of attention and reaction to the counterparties which had shown actual and persistent interest in the MIE bonds etc, despite allegedly setting aside time specifically for price discovery with them.

575    In short, there was abundant evidence of sophistication, planning, and premeditation, and of efforts made by the accused before and even after the commission of the offences which showed that his act of carrying out the passthrough trades in a manner that benefitted him and caused losses to the SP1 investors, was not a simple affair, nor one carried out on the spur of the moment.

(4)    Frequency/Duration of the offences

576    The Defence argued that the passthrough trades were conducted within a short window on the morning of 19 January 2016 and that whilst there were two charges, both were part of the same transaction and were conducted as a one-off event. The Prosecution did not submit anything to the contrary, and in fact, accepted that the custodial sentence imposed for each charge should run concurrently. I agreed with both parties that the aggregate sentence ultimately should reflect the fact that the two offences were committed on the same day, and as part of the same transaction, albeit that there was evidence of prior actions taken by the accused in preparation to set up SP5 for the passthrough trades (see [29] above).

(5)    Distortion to the market

577    In light of the nature of the securities involved, I accepted that there was no distortion to the market caused by the accused’s actions.

578    Having said that, the High Court in Ng Sae Kiat at [58] had stated that “We do not agree that the distortion of market information is a necessary condition for a custodial sentence to be imposed in respect of a s 201(b) offence.” The Court had added that “It is important to bear in mind that s 201(b) is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities,” and that “…given the broad scope of offences criminalised in s 201(b), the absence of direct contravention of one of these aims should not necessarily preclude the imposition of a custodial sentence in respect of an offence under that section.”

(6)    Identity of the defrauded party, entrustment to the accused and the accused’s position of conflict

579    The Defence highlighted that SP1 was a private investment issued for sale only to selected accredited or institutional investors and that the general retailer laymen public investors were not involved. While that may be the case, I did not think that this factor was something necessarily in the accused’s favour.

580    In this regard, Steven Chong J (as he then was) in PP v AOM [2011] 2 SLR 1057 had made clear at [37] “…the absence of an aggravating factor cannot ipso facto constitute a mitigating factor. This is because a mitigating factor is something which an accused is given credit for …, and it cannot be said that the absence of an aggravating factor is something which the accused should be given credit for…” Thus, that the victim was not a layman or a public investor was neutral at best, and not something the accused should be given credit for.

581    In any event, while Dato Lee of SCL, which was the majority investor of SP1, may have possibly been more financially secure and commercially astute than the ordinary man in the street, I noted that in this particular case, it was because the accused had direct contact with Dato Lee and his representative, Ms Ng, that the accused knew about how desperate SCL was in wanting to liquidate its investments in SP1, to the extent of refusing all advice, including from the accused himself, not to do so. It was under those circumstances, and with this knowledge, that the accused apparently decided to personally carry out the process of disposing of the MIE bonds via the passthrough trades, even though he could presumably have authorised and left Mr Lai to carry out the sale.

582    Yet, given that trust and mandate given to him to manage SP1 and to divest its assets including the MIE bonds, the accused, as the portfolio manager of SP1, and someone who had full control and discretion over how the process of sale of its assets was to take place in terms of the price to sell, the time to sell, the method of sale and the party to sell them to, he had a clear duty to act in the interests the investors of SP1. As the expert witnesses have alluded to and to which the accused agreed, he had a duty to sell the assets of SP1 at the highest possible prices. The accused was thus clearly in a position of trust vis-à-vis the investors of SP1, including SCL, and he had essentially abused that trust.

583    In addition, as previously discussed, the accused was also in an obvious position of conflict. This was because as the portfolio manager of both sub-funds SP1 and SP5, he effectively sold the MIE bonds from SP1 to SP5, when he was the clear majority shareholder of SP5 (with 99% direct and indirect shareholding), and hence he would have had a clear desire to pay the lowest possible price for the MIE bonds, which would clearly and directly act against the interests of SP1 and its investors. Under such circumstances, there was an obvious temptation on his part to offer a lower price for the MIE bonds.

584    As it turned out, the actual price that the accused bided for the MIE bonds (with SP5 as the buyer) which he then accepted on behalf of SP1 acting as its portfolio manager, was clearly a figure lower than the best available price for these bonds. His acts were done to the detriment of the investors of SP1, and to his own personal benefit as the clear majority shareholder of SP5.

585    As for the Defence’s argument that SP1’s investments were successfully liquidated in a short period of time, this was neither here nor there, simply because the accused was expected to complete the liquidation process as part of his duty as the portfolio manager of SP1. Presumably, the accused would have been separated and additionally remunerated or rewarded for doing this work that he was expected to do in any event. Even if this was not the case, it does not excuse his actions in carrying out the acts likely to act as a fraud on investors, in relation to the sale of the MIE bonds, which caused a huge loss to the investors of SP1, and which also resulted in massive profits for himself.

(7)    Difficulty of detection

586    As noted earlier, the Prosecution argued that the offences were difficult to detect and that if not for the letter sent in by Mr Goh to MAS on 31 October 2016, the accused’s offending would have gone undetected. The Defence countered by citing Anthony Soh (DC) (see [503]) where the District Court had remarked at [150(f)] that “[s]ecurities offences are notoriously difficult to detect, investigate and prosecute”. Given that difficulty of detection is a factor that was inherent to most if not all market misconduct cases under s 201(b) of the SFA, the Defence argued that this factor could not in itself be aggravating.

587    However, with respect, the Defence failed to mention that the same DJ in Anthony Soh (DC) had stated in the same paragraph referred to by the Defence that “The difficulty of detection of an offence attracts the principle of general deterrence when considering the appropriate sentence for the offence…” In other words, the difficulty of detection, even in the context of offences under the SFA, could be a reason for enhancing the sentence to serve as a deterrence.

588    I would add that detection may well have been made even more difficult by the accused in the present case as there were elements of concealment of the offences, as evidenced by the accused’s deliberate use of separate chats in his dealings with Mr Reshad of Pareto when conducting the passthrough trades. This was something which Mr Reshad could not understand as he had expected the actual instruction and correspondence for the buying and selling to occur by way of a single group chat, being a straightforward transaction (see [56], [58] and [387(b)] above). Further, the accused’s subsequent misleading response to Ms Goyal of Morgan Stanley (when he told her “all or nothing”), after she had queried him about her bids, also suggested that the accused was trying to give Ms Goyal the impression that he had not accepted her (higher) bids for the MIE bonds because she had not concurrently bided for the Indika bonds.

589    While the Defence pointed out that when SCL requested information on the redemption, the accused had given his approval for such information to be provided although SCL subsequently chose to not access this information, suggesting that there was no effort made by the accused to avoid detection by SCL, I agreed with the Prosecution that this was an inaccurate characterisation of affairs (see [508(d)] above).

590    In this regard, as pointed out by the Prosecution, SCL had requested the “trade logs”, which would only show the details of the trades conducted, for example, the buyers of the assets and the prices, but these would not have shown the full range of bids that the accused had received for the MIE18 and MIE19 bonds before he actually carried out the passthrough trades.

591    Thus, it appeared that even if the trade logs had been given to SCL, they would not have shown to SCL that there were higher available bid prices that the accused knew of before he conducted the passthrough trades and that the accused had not accepted these higher bids. Hence, SCL would have been none the wiser about the circumstances under which the accused had carried out the passthrough trades even if it had obtained the trade logs. In other words, the accused’s misdeeds would still likely have remained undetected by SCL even if the trade logs had been provided to SCL.

(8)    Sentencing precedents did not support a non-custodial sentence

592    In its written submissions, the Defence had enclosed a table of sentencing precedents to argue that a high fine ought to be imposed on the accused. However, I agreed with the Prosecution that the facts of those cases were distinguishable, and hence they were not useful sentencing precedents.

593     First, as explained by the Prosecution, in respect of the case of Ng Hock Ching, unlike the present case, there was apparently no evidence of any loss caused to the victim, nor of any breach of duty or abuse of trust, and the profits made were significantly lower (see [516(a)] above). I would add that factors such as planning and premeditation, in that case, were also present here.

594     Second, in respect of Ng Sae Kiat, as correctly pointed out by the Prosecution (see [516(b)] above), the High Court was primarily constrained by the parity principle to impose a fine, despite otherwise agreeing with the Prosecution there that a custodial term would ordinarily have been warranted as Ng Sae Kiat featured four “…employees in a financial institution [abusing] the duty of fidelity they owe to their employer in a premeditated and brazen manner, over a period of time, for personal gains…displaying a high degree of moral culpability” (see [64]). Thus, as the “mastermind” Vincent Tan had been sentenced to only a fine, and as the four offenders before the Court had likely pleaded guilty after they had factored in Tan’s sentence, the Court eventually declined to interfere with the sentences imposed by the DJ and did not impose a custodial term on the four offenders (at [72]). Further, consistent with what was pointed out by the Prosecution, other points of distinction between Ng Sae Kiat’s case and the present case were that:

(a)     the offenders there pleaded guilty (for which they would have received a sentencing discount), while the accused here claimed trial, for which he would not receive a similar discount;

(b)     there was full restitution by the offenders of the profits that they made (at [37(a)]);

(c)     there was no actual loss there eventually because the brokerage company that was deceived had acted promptly in freezing the funds in the relevant accounts used for the trades (see [63(h)]); and

(d)     the largest amount of financial gain to the offenders was only $45,000, made by the offender Wong (at [17]), while the gains by the accused here were significantly more, coming in at over S$1.5 million.

595     Third, as for Ng Geok Eng, the facts there were very different from the present case, as the s 201(b) offences in that case related to the offender using other persons’ trading accounts to conduct trades without informing the securities trading firms, albeit that he did so with the consent of the account holders. Also, there was no loss caused by the offender’s use of the other persons’ accounts (at [81]). In contrast, in the present case, the accused’s acts had caused substantial losses to the SP1 investors.

596     Fourth, as regards the case of Sia Teck Mong, there was similarly no loss caused or damage caused to the market, nor any gains made by the offenders. The Court also noted that there was no evidence that the securities house or any other person suffered damage (see [516(c)] above).

597     Fifth, as regards the case of Cheong Hock Lai, I accepted the Prosecution’s arguments (see [516(d)] above) that the facts there were less aggravating as the highest profits made were $62,931.90 (for the proceeded charges) and $107,925.29 in total (including the TIC charges) (at [13]). The Court there also expressly considered that the wrongful acts were committed when the respondents were trading on their own accounts rather than that of a member of the investing public. No investor clients were involved (at [30] and [38]), and thus, there was no abuse of position to the detriment of investors.

598    In short, the cases highlighted by the Defence to justify a fine were all clearly distinguishable. I would add that all things considered, the facts of the present case were distinctly more aggravating than the facts in those cases where fines were imposed. Accordingly, having considered the relevant factors, and bearing in mind the guidance of the Courts in Lee Chee Keet, Ng Sae Kiat and the various other cases discussed above, I was of the view that a custodial sentence was clearly necessary in the present case.

599    I now turn to consider the appropriate length of the custodial sentence to impose for each charge, and the aggregate sentence overall.

Length of custodial sentence

600    As for the length of imprisonment to be imposed, I would reiterate the guidance of See JC in Lee Chee Keet at [28] that as far as precedents for s 201(b) offences go “…one should not readily assume that a sentence imposed in another s 201(b) case would invariably serve as a useful reference point simply because it also involved another offence for which a charge was preferred under s 201(b). It also follows that greater care must be taken when making reference to precedents involving s 201(b) as a guide to calibrating sentences.”

601    As such, and having considered the factors put forward by parties, I found the precedents cited by the Defence, even on the question of calibrating the length of custodial sentence, to be generally unhelpful as the facts of those cases were clearly different and, in the case of unreported cases, there was nothing useful to guide me in determining the appropriate custodial sentence.

602    In this regard, I broadly agreed with the Prosecution’s arguments, set out in Annex A of the PFRSS, that the cases cited by the Defence to justify their argument for a 3-week imprisonment sentence (see DRSS at Annex A) were either unhelpful to the Defence, or were distinguishable for various reasons. These included the fact that they were plead-guilty cases, the gains involved were considerably smaller, the use of the accounts was done with the consent of the account holders, there was no evidence of any breach of duty, abuse of trust or of losses suffered by the victims, and/or they were unreported decisions of little precedential value.

603    Instead, the case which I found particularly useful for sentencing was the District Court decision of Loo Kiah Heng which was first cited by the Prosecution and which involved many similar facts and considerations as the present case. Amongst other things, one of the offenders, Soh, was a fund manager who dealt with securities. The sentence imposed by the DJ there was also upheld on appeal to the High Court.

604    Both parties also referred to Loo Kiah Heng, although they highlighted different and/or distinguishing aspects of that case that they felt supported their respective sentencing positions.

605    In the case of the Prosecution, it highlighted that:

(a)     The profits made by the accused in the present case exceeded the total profits of all the charges in Loo Kiah Heng;

(b)     The fund manager Soh, who was not shown to have directly benefitted monetarily from the offences, was nonetheless sentenced to 8 months’ imprisonment; and

(c)     As compared to the accused persons in Loo Kiah Heng who pleaded guilty, the accused here claimed trial to the charges against him.

606    As for the Defence, with reference to Loo Kiah Heng (see [480(b)] – [485] above) it highlighted the following considerations:

(a)      Loo Kiah Heng involved over 37 trades conducted over 20 months and hence, the scale and extent of the conduct in Loo Kiah Heng far outstripped that in the present case.

(b)     The offender Loo could make immediate, guaranteed intra-day contra profits from the difference, exceeding S$842,000 in total (at [2]-[4]), and the married trades were executed in order to feed a relationship that was beneficial to the offender Soh because it would improve his standing in ING and positively affect his income/bonuses. In contrast, in the present case, the Defence argued that the immediate financial impact from the sale of the MIE18 and MIE19 bonds to SP5 through Pareto at the actual executed prices, instead of at Morgan Stanley’s earlier (refreshed) bid prices which totalled US$342,500), was far lower than the amount of S$842,000 in Loo Kiah Heng. The subsequent profit from the onward sale by SP5 of the MIE18 and MIE19 bonds on 7 March 2016 and 25 April 2016 was also purely fortuitous.

(c)     In Loo Kiah Heng, the Court found that Soh had carried out the trades in a manner which he knew would escape detection, and Soh’s acts were “executed with care to avoid detection” (at [45]). In contrast, there was no evidence of any deliberate or covert attempt to cover-up or to otherwise conceal the accused’s interest in SP5 and/or the passthrough from other parties in the present case.

(d)     In Loo Kiah Heng, the securities in question were publicly traded stocks, unlike the MIE bonds which were not traded on the open market and SP1 is a private fund for accredited or institutional investors only.

(e)     There was no indication that the prices of the married trades in Loo Kiah Heng were determined with regard to any point of reference, whereas the passthrough prices were based on the actual firm, valid and executable Haitong bids received.

(f)     Finally, the Defence argued that there was no indication in Loo Kiah Heng that the court considered the plea of guilt as a mitigating factor, or took the guilty plea into consideration for the purposes of sentencing.

607    As I have already given my views about the losses suffered by the SP1 investors, the actual gains made by the accused and his profit motivation, as well as the planning and premeditation involved, I have nothing further to add, save to say that the final profits made by the accused vastly exceeded that made by Loo, and presumably would also have exceeded whatever benefits Soh, the fund manager, would have obtained. Moreover, Loo had made full restitution of the profits he received, something which the accused here has not done.

608    However, in so far as the MIE bonds in the present case were not publicly traded securities, and more importantly, in light of the much more extensive nature of the operation and offences in Loo Kiah Heng, as reflected in the total number of charges proceeded with, the charges taken into consideration, and also the duration of the offences, I accepted that these were clear differences between the two cases. As such, these were significant factors that I did take into account in calibrating the final sentence.

609    Further, while it was clear that the MIE bonds were not publicly traded securities, that did not mean that losses suffered by investors in a private fund i.e. the SP1 investors, should not be considered important, as they were still innocent victims who lost substantial sums of money as a result of what the accused did. Further, while SCL, the majority investor, could not be said to be a vulnerable victim (which would have been an aggravating factor), it was entitled to expect that the accused, the portfolio manager of the fund in which it had invested and trusted to manage, would abide by the law and not seek to unfairly and unlawfully profit himself at its expense. To aggravate its pain as SCL was already desperate to get out of its investment in SP1 due to the losses it had already suffered, the accused’s actions served only to deepen its wounds by causing its losses to be increased.

610    As for the Defence’s argument that the Court in Loo Kiah Heng found that Soh’s acts were “executed with care to avoid detection”, I had also noted that there were similar elements of concealment and deception in the present case (see [588] above).

611    As for the argument raised by the Defence that sentencing precedents must be compared on a charge-by-charge basis, and that it was thus not appropriate to use the global sentence imposed in Loo Kiah Heng as the measure of comparison, I would highlight that in Loo Kiah Heng at [55] the Court made clear that “…although the accused persons were being sentenced for four charges each, [the Court] considered their conduct in its entirety”. Thus, the aggregate sentence of 8 months’ imprisonment imposed on Soh (the fund manager) reflected this reality, including the fact that there were numerous charges taken into consideration for the purposes of sentencing.

612    Thus, the Court in Loo Kiah Heng, in expressly focussing on the aggregate sentence, would also have considered the totality principle where, amongst other things, the sentencing court has to consider whether to re-calibrate the individual sentences so as to arrive at an appropriate aggregate sentence (see Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (“Mohamed Shouffee”) at [58] – [59, [66] – [67])]. This means that rather than looking at the individual sentences in Loo Kiah Heng in isolation, it would be more useful to look at and compare the aggregate sentences when looking at two cases involving multiple charges.

613    I would add that the approach of the Court in Loo Kiah Heng in focussing on the aggregate sentence was also consistent with what the High Court advocated in Tan Thiam Wee v PP [2012] 4 SLR 141 (“Tan Thiam Wee”), where the Court stated at [8] that “It is clear law, and indeed commonsense, that the primary consideration in cases involving multiple charges in circumstances such as the present case, is the totality of the sentence”

614    Thus, applying the same approach in the present case, I was of the view that it would be more useful to consider the conduct of the accused in its entirety, and to come up with an aggregate sentence that was fair and proportionate based on the overall facts and circumstances of the present case. In doing so, it would be appropriate to look at the facts and aggregate sentence for each offender in Loo Kiah Heng, rather than the sentences imposed for their individual charges.

615    Moving on to the issue of a plea of guilt, it is generally accepted that this factor would result in a sentencing discount for offenders. Nevertheless, the Defence argued that there was nothing in Loo Kiah Heng to indicate that the Court there had considered the plea of guilt as a mitigating factor, or that it had taken the guilty plea into consideration in calibrating the sentence.

616    With respect, I did not agree with the analysis of the Defence. Instead, I was of the view that the Court in Loo Kiah Heng was clearly cognisant of the effect of a plea of guilt in sentencing as it made express reference to this factor when considering the sentencing precedents (see [31] – [37] of the case). Further, there was nothing stated by the Court in Loo Kiah Heng to suggest that it had not followed the general approach taken by courts to apply a sentencing discount when an offender pleads guilty. Nor was there any suggestion that the evidence there was so overwhelming that no sentencing discount for a plea of guilt was warranted in Loo Kiah Heng, In short, in line with general sentencing practice and based on the written judgement in Loo Kiah Heng, I was satisfied that the 4 months’ and 8 months’ imprisonment imposed on Loo and Soh respectively had taken into account their respective pleas of guilt.

617    Thus, when there was no plea of guilt, as in the present case, it serves to reason that no sentencing discount for a plea of guilt should be expected by the accused (see Kreetharan s/o Kathireson & Ors v PP [2020] SGCA 91 at [37] (“Kreetharan”). That said, for the avoidance of doubt, I agreed that the accused was entitled to claim trial and I would make it clear he was not penalised in terms of any increase in his sentence as a result of his claiming trial.

618    I would conclude the discussion of Loo Kiah Heng, by dealing with the graduated approach set out in Siow It Loong which the Defence urged me to apply here. This approach was also discussed in Loo Kiah Heng.

619    As correctly highlighted by the Prosecution, the learned DJ in Loo Kiah Heng, does not appear to have accepted that the graduated approach should apply. At [46] of Loo Kiah Heng, the DJ stated that she:

…preferred the view that if a course of conduct was not clearly illegal but the persons involved wanted to embark on it to test the limits of permissible activity, then they would have to bear the consequences of their conduct. I thus considered this to be a neutral point: it did not entitle them to more leniency, but the Court was also not entitled to treat such conduct in itself as aggravating.

[emphasis added]

620    Further, the Prosecution also rightly pointed out that the graduated approach in Siow It Loong does not appear to have been based on any approach previously set out by the High Court, nor has that approach since been endorsed or applied in any reported decision after Siow It Loong. In any event, I agreed with the Prosecution that the more nuanced approach taken by the DJ in Loo Kiah Heng on this issue was also clearly more logical and defensible. It was also the approach which I both preferred and endorsed.

621    On a related point, I would add that I did not agree with the Defence’s submission that there was a danger of over-regulating the financial markets and dampening enterprise on the parts of traders if behaviour such as that of the accused in this case was not dealt with leniently.

622    Instead, I noted that the present case was one where the accused had intentionally carried out acts that he knew were to the detriment of investors of a fund who had essentially entrusted him with the assets of the fund, over which he was given full control of and could deal with, save that it was clearly established, and which both the experts and the accused himself acknowledged, he had a duty to sell the assets of the fund at the highest available price. The accused would also clearly have been aware that by carrying out the passthrough trades at the prices and in the manner that he did, whereby the MIE bonds were essentially sold by SP1 to SP5 at an “undervalue”, he would personally benefit from this transaction because of his own overwhelming ownership and interest in SP5. He would also have known that the investors in SP1 would correspondingly suffer a loss by the same action. Indeed, even while the accused denied that he owed a fiduciary duty to the investors, as discussed extensively above, the accused himself conceded and recognised that he had a duty to the SP1 investors to sell the MIE bonds at the highest available price. Notwithstanding his knowledge and acceptance of this duty, he declined to do what he was supposed to do to fulfil his duty.

623    I would add that the chances of such a scenario happening in the future – where there was a confluence of factors such as (1) the entrustment of the assets of the selling fund to an accused person; (2) that person having complete control of the assets of the selling fund such as to be able to solely decide on all aspects of the trading of its securities including determining who, how, how much, and when the securities would be sold to; (3) that same person having full control of the buying fund which the accused did in the present case as its portfolio manager; and (4) and that same person being in a situation to benefit from the transaction as a result of having a personal interest and benefit in the buying party (which was also what happened in the present case) – was remote. Clearly, the Defence has not shown that the above factors or circumstances are so common or prevalent in the securities industry or among traders, that imposing custodial punishment on the accused in the present case, would lead to a danger of over-regulating the financial markets, or lead to a danger of dampening enterprise on the parts of traders as alleged by the Defence.

624    All in all, I rejected the Defence’s suggestion for the application of the graduated approach referred to in Siow It Loong.

625    I turn now to what the Defence put forward as mitigating factors. Before discussing them in detail, I would again highlight the cardinal sentencing principle that was reiterated by Steven Chong J in AOM at [37] that “…the absence of an aggravating factor cannot ipso facto constitute a mitigating factor. This is because a mitigating factor is something which an accused is given credit for …, and it cannot be said that the absence of an aggravating factor is something which the accused should be given credit for…”

626    As regards the mitigating factors put forward by the Defence, with respect, having carefully considered the Defence’s submissions, I did not consider them to be particularly noteworthy. I elaborate below.

627     First, the accused’s lack of antecedents was only a neutral factor at best, especially in the face of the need for deterrence. In Ng Tai Tee Janet and another [2000] 3 SLR(R) 735, a case cited by the Prosecution, Yong Pung How CJ had stated at [18] that:

The fact that the respondents were first offenders and had pleaded guilty were at best, neutral factors and could not justify the imposition of a fine when there were compelling overriding policy reasons for imposing a deterrent custodial sentence.

628    Similarly, in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 at [65], Chan Seng Onn J stated that:

First, I find the fact that the appellant is a first-time offender to be a neutral factor because it is not positive evidence of good character that could in turn be considered a valid mitigating factor: see Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at paras 21.016–21.017, citing PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [32]. Also, the absence of antecedents is merely the absence of an aggravating factor (ie, the presence of relevant antecedents that thereby evince recalcitrance). It is trite that the mere absence of an aggravating factor cannot be construed as a mitigating factor which the appellant should be given credit for: see Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 at [24]–[26], PP v AOM [2011] 2 SLR 1057 at [37] and Chow Yee Sze at [14].

[emphasis added]

629    In the present case, while the commission of previous offences may have been an aggravating factor in line with the principle of escalation and the need for specific deterrence, the converse was not necessarily true. In other words, the fact that the accused has not committed any offence before should not automatically be considered something that he should be given credit for. In short, on the facts of the present case, his lack of antecedents would at best be a neutral factor.

630     Second, the Defence argued that the accused is of good character by providing one testimonial, and by submitting that the accused had provided “substantial” public service by completing and apparently performing well during his NS stint. However, I agreed with the Prosecution that this argument does not carry much, if any, weight since most other male citizens and Permanent Residents would also have to complete NS, as this is required by Singapore law. Further, without meaning to belittle the accused’s personal achievements or status, all things considered, his record in NS was relatively insignificant compared to the clearly much more substantial contributions of the offenders referred to in the cases of Foo Jong Kan and Knight Glenn, which were the cases put forward in his mitigation plea.

(a)     In Foo Jong Kan, the Court had stated:

23.    …Of greater relevance were his positions on public bodies, such as the Strata Titles Board. His philanthropy was also highlighted. Foo Yung Kuan for his part, is described as being active in community work, particularly in Toa Payoh and the Central Singapore Community Development Council, various temples, and was awarded a National Day award in 2003. He also served on various other boards and panels.

[emphasis added]

(b)     Similarly, in Knight Glenn, at [27] the Court recognised the offender’s distinguished record of public service as follows:

[The offender] joined the Attorney-General’s Chambers on 3 April 1970 and reached the position of a Senior State Counsel. On 16 October 1984, he was appointed Director of CAD and was responsible for the setting-up of the department and also for the success of that department in the investigation and prosecution of commercial crimes. In 1989 he received a strong commendation from the Minister for Finance for outstanding leadership in setting up CAD, and in 1990 he was awarded the Public Administration Medal (Gold). In addition, he had served, among others, the positions of a lecturer/tutor in the Faculty of Law, National University; a consultant in the Practice Law Course organised by the Board of Legal Education; vice-chairman of the Board of Governors for four Anglo-Chinese Schools, and vice-chairman of the Board of Management of Anglo-Chinese Independent School.

[emphasis added]

631    In any event, as rightly pointed out by the Prosecution, the High Court has also made clear that courts generally place limited weight on claims of past contributions. In this regard, Aedit Abdullah J in Leong Sow Hon affirmed the position that past contributions do not confer a ‘Get out of Jail Free’ card on an accused person. At [66(b)], his Honour stated:

Second, in so far as the conception of the “clang of the prison gates” principle in question relies on the offender’s eminence and past contributions to society, with respect, this is not at all a sound basis for a more lenient sentence. In Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 (“Stansilas”) at [84], Menon CJ made clear that it was necessary to “justify the mitigating value of public service and contributions by reference to the four established principles of sentencing: retribution, prevention, deterrence (both specific and general) and rehabilitation”. Without actually elucidating the relationship between an accused person’s eminence and past contributions on the one hand, and particular sentencing objectives which should be met on the facts on the other, there is a real worry that the court may descend into “moral accounting” or sentencing offenders on the basis of their “moral worth”: Stansilas at [88]–[92]. Past contributions may be relevant in so far as they show a capacity for reform, and hence reduce the need for specific deterrence, but are even at the very highest only of modest weight, and are liable to be displaced where other sentencing considerations assume greater importance: Stansilas at [102(c)]. I would further note that the courts do not play the game of “Monopoly”, and that past contributions do not confer a “Get out of Jail Free” card on an accused person.

[emphasis added]

632    Notably, Aedit Abdullah J observed at [67] that it is “difficult to see how such contributions can be relevant to a charge involving fraud”. Similarly, in the context of the s 201(b) charge, where the acts of the accused were “likely to operate as a fraud”, and paraphrasing Aedit Abdullah J, it would be “ difficult to see how such contributions can be relevant to a charge involving [an act likely to operate as] a fraud”.

633     Third, the Defence argued that there was no premeditation involved, nor were the acts part of a sophisticated or elaborate scheme. As I have dealt with these issues earlier (see [571] – [575] above), I say nothing more.

634     Fourth, as regards the issue of cooperation by the accused, the Prosecution challenged this claim, arguing that that was no evidence that the accused had co-operated with the investigations. Specifically, as regards his attending police interviews, the Prosecution pointed out that the accused was required by law to attend such interviews, and that in any event, during these interviews, he had not been forthright nor had he given truthful responses, as seen from his evasive and self-serving answers contained in the accused’s statements that were admitted into evidence.

635    In my view, without delving into specific responses given by the accused in his statements, I would only say that there was nothing contained in the evidence before me during the trial which manifested any evidence of cooperation by the accused, beyond what he was required to do so by law. Simply put, in the words of Steven J in AOM, there was nothing to give the accused credit for.

636     Fifth, the Defence alleged that there was undue delay causing prejudice to the accused. However, with respect, again there was nothing before me that would support this claim by the Defence.

637    In this regard, in Wong Poon Kay, Menon CJ had explained at [66] that:

As a matter of principle, the court may extend leniency in the sentencing of an offender on account of a significant delay in investigation and/or prosecution. This is a nuanced inquiry which first requires the court to be satisfied that there has been an inordinate delay that is attributable to the Prosecution and that the accused person has suffered unfair prejudice as a result.

638    Menon CJ added that:

[67]  Even where it is possible to establish inordinate delay and unfair prejudice, the accused person may not succeed in getting the sentence reduced if there are countervailing reasons not to take into account the delay (such as if the offence is particularly heinous, or if the offender is recalcitrant)…

[68]  Turning to the question of delay, I reiterate that only inordinate delay would warrant considering leniency in sentencing. This means the delay must have been unusually long and not explicable by reasonable grounds…

[emphasis added]

639    In Wong Poon Kay, the Defence there had alleged that there had been a delay in investigations and prosecution for a period of 11 years, from 2 March 2010 when investigations began, to 4 June 2021 when the accused was charged. However, after examining the facts, Menon CJ rejected the Defence’s argument that there had been any inordinate delay and held that there was no basis to reduce the sentence that was imposed. As his Honour decided that there had in fact been no delay, there was no need for him to proceed to the second stage of the enquiry to consider if the accused there had been prejudiced by any delay.

640    It should also be noted that in Wong Poon Kay, Menon CJ expressly disagreed with the decision of the DJ who had reduced the offender’s sentence of 30 months’ imprisonment to a term of 24 months’ imprisonment on the basis of the alleged delay. Despite this, and perhaps fortunately for the accused person there, as there was no cross-appeal by the Prosecution, Menon CJ decided not to interfere with the sentence imposed by the DJ (at [86] – [87]).

641    In the present case, I agreed with the Prosecution that as has been made clear from the witnesses’ evidence, and the exhibits and reports tendered in court, there was no inordinate delay caused in connection with this case. In this regard, it was obvious that the evidence involved was complex and voluminous, and extensive investigations had to be carried out in relation to the offences. Specifically, I accepted the Prosecution’s arguments (see [536] above) that such investigations included examining documents and other evidence from OAIP, APEX, Bloomberg, and the market participants (e.g., Bloomberg chats with BNP, SC Lowry, Haitong, Morgan Stanley and Pareto); interviewing witnesses from OAIP, SCL, and the counterparties, as well as seeking expert opinions and obtaining expert reports from Ms Low and Mr Cheong, and conducting interviews and recording statements from the accused, before he was charged on 22 October 2020. This was about three years and eight months after investigations commenced.

642    In addition, I also considered the fact that this case involved a scenario which was novel, in that the charge was framed under a limb of s 201(b) (“likely to operate as a fraud”), where the law has not been settled in any previously contested trial. Thus, extensive evidence was adduced by BOTH the Prosecution and the Defence to support their respective positions. Both parties had also engaged experts, in fact, at least two experts each, to analyse the documents and to render their opinions. This fact alone reflected the complexity of the case, which, together with the amount of evidence that was adduced and examined, and the contentiousness of the issues, accounted for the time taken to investigate and evaluate the case, and for parties to review their positions.

643    To the extent that the evidence involved technical matters and/or issues which were not always clear cut (e.g. even on the gains that the accused made from the offences), and as the law was not exactly straightforward or obvious, these factors likely influenced how the parties conducted their respective cases.

644    In summary, all things considered, in particular, the complexity of the facts and the law, the volume of evidence concerned, and the involvement of various witnesses including foreign witnesses such as the representatives from SCL and SC Lowy, both of whom testified at the trial, I was of the view that an investigation that spanned less than 4 years could not be said to be inordinately long or to be one that has been delayed.

645    By way of comparison, and as noted above, the Court did not find 11 years to be an inordinate delay in Wong Poon Kay (a case cited by the Prosecution). Similarly, in Tan Kiang Kwang, a case cited by the Defence, a 6-year period to investigate and charge the offender was not found to be a ground to reduce the sentence imposed.

646    While there was some suggestion by the Defence that the trial process itself was lengthy, this was as much a result of the actions of the Defence as it was those of the Prosecution since cross-examination of the Prosecution witnesses accounted for a significant portion of the time spent on adducing evidence in court. It also appeared that the taking of trial dates was affected by the availability of counsel, as much, if not more so, than it was due to the availability of the prosecutors.

647    Further, I considered that the Prosecution had in fact, not called everyone who was connected with the transactions, possibly paring their witness list down to witnesses that they felt would be sufficient to prove their case. For example, they did not call Mr Ray Xie of Haitong to testify, nor various other employees of OAIP whose names were mentioned in the course of the trial. This would have reduced the time taken for the proceedings.

648    Separately, the evidence adduced after defence was called, particularly the evidence led from the accused by counsel (and contested by the Prosecution) also accounted for a substantial portion of the time taken for the trial. In addition, even though the Defence ultimately declined to call their experts to testify, the contents of those purported Defence expert witnesses’ reports were nonetheless used by the Defence in lengthy and protracted cross-examination of the Prosecution experts.

649    Even when it came to sentencing, on the original date of the sentencing mention which was supposed to be on 14 May 2024, the Defence brought up matters in relation to the quantification of the accused’s gains, and this necessitated further submissions and investigations and pushed back the completion of the case. That said these matters, rightly so, had to be fully explored and ventilated before the case could be properly concluded.

650    All in all, I saw no evidence of any delay in this case on the part of either the Prosecution or Defence, let alone any inordinate delay that would have an effect on sentencing.

651    While my finding that there was no inordinate delay would have been the end of the matter, I would add that there was also no evidence of any prejudice caused to the accused in any event. In this regard, I agreed with the Prosecution that much of what the Defence complained about, including the inability of the accused’s wife to travel with him overseas, was due to the accused’s own decision or acquiescence with her being his bailor, hence necessitating that she comply with the relevant bail conditions, which were themselves reasonable and unexceptional.

652    The choice by the Defence of selecting the accused’s wife to be the accused’s bailor was clearly a voluntary and considered decision of both the accused and his wife, presumably made with the awareness of counsel that under the conditions of bail, she would not be able to travel overseas with him.

653    As for the issue of amendments made to the original charges, this was something permitted under the CPC, subject to the requirements set out therein, as well as in case law. In light of the nature of the offences and the evidence presented, I was of the view that the amendments were justified. There was also nothing put forward by the Defence which showed that there was any prejudice caused to the accused, certainly nothing that was not already addressed by the precautions taken in connection with the making of the amendments.

654    In short, I rejected the Defence’s claim that there was an inordinate delay in the conduct of this case, let alone a delay that caused prejudice to the accused.

655     Sixth, as regards the Defence’s argument that the accused had suffered significant reputational damage and, arising from the investigation and present charges, and that he has not been able to work in the fund management industry as a fund manager thereby resulting in a loss of job opportunities, I agreed with the Prosecution that a similar argument had been expressly rejected by Menon CJ in Stansilas, In that case, the offender argued that he was already punished by facing disciplinary proceedings in the army and would also suffer from adverse consequences at work. However, Menon CJ emphatically rejected this argument as irrelevant to sentencing. Instead, his Honour held at [111] that:

A person who breaches the criminal law can expect to face the consequences that follow under the criminal law. Whether or not such an offender has already or may as a result suffer other professional or contractual consequences should not be relevant to the sentencing court.

656    All in all, after carefully evaluating the factors put forward, I was of the view that based on the relevant sentencing considerations and sentences imposed in the pertinent cases, the sentence imposed on the accused should not be as high as the aggregate sentence of 8 months’ imprisonment imposed on the fund manager Soh in Loo Kiah Heng (who faced more charges for offences committed over a greater duration), but that they should be higher than the sentence imposed on Loo, who had received a lower jail sentence because he disgorged his substantial profits, and also pleaded guilty, neither of which had happened in the present case.

657    All things considered, I imposed a sentence of 6 months’ imprisonment per charge in the present case, a sentence which I consider to be fair, proportionate, and one which has taken into account all the relevant considerations. The sentences will run concurrently, for an aggregate sentence of 6 months’ imprisonment.

658    It is my hope that such an aggregate sentence would promote continued investor confidence in our fund management industry, and ensure that individuals entrusted with managing funds uphold the highest standards of integrity and honesty.

659    Finally, it leaves me to thank the DPPs and counsel for coming up with detailed submissions on the issues of guilt and sentence, all of which have been of immense assistance to this Court.

[note: 1]Notes of Evidence (NE) Day 17 (25 August 2023) page 39/24 - 40/14.

[note: 2]NE Day 18 (28 August 2023) page 94/3 - 8.

[note: 3]NE Day 19 (29 August 2023) page 2/7 - 10.

[note: 4]P69 p 3 – Emails between the accused, Mr Lai and Mr Goh between 15 and 22 Dec 2015.

[note: 5]P24 – Redemption Form dated 4 Jan 2016; SOAF at [11].

[note: 6]NE Day 7 (11 August 2022) Page 139:10-23.

[note: 7]DCS Annex B, Table 1 s/n 17.

[note: 8]DCS Annex B, Table 2 s/n 15.

[note: 9]NE Day 6 (10 August 2022) Page 72/9-12.

[note: 10]DCS at [176].

[note: 11]D22 – Board resolution; NE Day 6 (10 August 2022) Page 15/19-16/1.

[note: 12]D23 – WhatsApp chat log between Mr Lai and the accused. NE Day 6 (10 August 2022) Page 43/11-16.

[note: 13]NE Day 21 (31 August 2023) Page 87/24 –88/6.

[note: 14]D26 p 1 – WhatsApp chat log between the accused, Mr Goh and Mr Lai.

[note: 15]D26 p 1.

[note: 16]D26 p 2.

[note: 17]NE Day 16 (24 August 2023) page 93/2 - 12, 100/20 - 24.

[note: 18]SOAF at [14].

[note: 19]D26 p 2 – WhatsApp chat log between the accused, Mr Goh and Mr Lai.

[note: 20]P58 – Email from Kelvin Goh to Tan Choo Hui dated 19 January 2016.

[note: 21]P75 – SP1 Trade List.

[note: 22]NE Day 25 (29 December 2023) Page 38/3 - 8.

[note: 23]NE Day 6 (10 August 2022) Page 145/1 - 11.

[note: 24]NE Day 6 (10 August 2022) Page 151/15 - 24.

[note: 25]NE Day 6 (10 August 2022) Page 69/11 - 72/5.

[note: 26]NE Day 6 (10 August 2022) Page 135/21 - 136/7.

[note: 27]NE Day 5 (8 August 2022) Page 17/3 - 9.

[note: 28]NE Day 6 (10 August 2022) Page 161/23 - 162/6.

[note: 29]NE Day 6 (10 August 2022) Page 87:19 - 22.

[note: 30]NE Day 7 (11 August 2022) Page 33//24 - 34/2.

[note: 31]NE Day 7 (11 August 2022) Page 34//25 - 35/23.; Page 56//23 - 57/14

[note: 32]NE Day 7 (11 August 2022) Page 36//15 - 24.

[note: 33]NE Day 7 (11 August 2022) Page 58//21 - 59/1.

[note: 34]NE Day 7 (11 August 2022) Page 79/21 - 24.

[note: 35]NE Day 7 (11 August 2022) Page 80/4 - 9.

[note: 36]NE Day 7 (11 August 2022) Page 86/23- 87/10.

[note: 37]NE Day 7 (11 August 2022) Page 88/18- 89/19.

[note: 38]NE Day 7 (11 August 2022) Page 97/14- 20.

[note: 39]NE Day 7 (11 August 2022) page 136/9- 14.

[note: 40]NE Day 10 (16 August 2022) page 26/18 - 24; and P67 at [10] and [11].

[note: 41]NE Day 8 (12 August 2022 page 107/14 - 16.

[note: 42]P67 at [10] and [11].

[note: 43]NE Day 8 (12 August 2022) page 51/1 -6.

[note: 44]NE Day 10 (16 August 2022) page 26/18 - 24; and P67 at [10] and [11].

[note: 45]NE Day 10 (16 August 2022) page 11/9 - 13/ 19.

[note: 46]NE Day 10 (16 August 2022) Page 14/16 - 15/ 3.

[note: 47]NE Day 10 (16 August 2022) Page 16/1 - 15/ 3.

[note: 48]NE Day 10 (16 August 2022) Page 19/3 - 21/10.

[note: 49]P67 at [15], [16] and [18].

[note: 50]NE Day 9 (15 August 2023) page 109/18 - 110/9.

[note: 51]NE Day 8 (12 August 2023) page 56/14 - 15.

[note: 52]NE Day 8 (12 August 2023) page 56/20 - 23.

[note: 53]P67 at [24].

[note: 54]P67 at [27].

[note: 55]P67 at [32].

[note: 56]NE Day 10 (16 August 2022) Page 49/23 - 50/4.

[note: 57]P67 at [34].

[note: 58]NE Day 10 (16 August 2022) Page 51/23 – 52/3.

[note: 59]NE Day 10 (16 August 2022) Page 52/4 – 23.

[note: 60]NE Day 10 (16 August 2022) Page 24/20 - 24.

[note: 61]NE Day 10 (16 August 2022) Page 28/7 - 20.

[note: 62]NE Day 10 (16 August 2022) Page 28/7 - 20.

[note: 63]NE Day 10 (16 August 2022) Page 93/23- 25.

[note: 64]NE Day 10 (16 August 2022) Page 90/6 - 24.

[note: 65]NE Day 10 (16 August 2022) Page 88/21 – 92/3.

[note: 66]NE Day 10 (16 August 2022) Page 90/25 – 93/2.

[note: 67]NE Day 11 (14 August 2023) page 79/15 - 80/2.

[note: 68]NE Day 12 (15 August 2023) page 107/4- 108/ 9.

[note: 69]NE Day 12 (15 August 2023) page 12/3 - 22 and P68 at [11].

[note: 70]P68 at [11].

[note: 71]NE Day 12 (15 August 2023) page 120/12 - 13.

[note: 72]P68 at [14] and [15].

[note: 73]NE Day 10 (16 August 2022) Page 6/17- 7/4.

[note: 74]P68 at [18] - [20].

[note: 75]NE Day 10 (16 August 2022) Page 7/12- 16.

[note: 76]P68 at [22].

[note: 77]P68 at [24].

[note: 78]NE Day 12 (15 August 2023) page 67/18- 71/21.

[note: 79]NE Day 10 (16 August 2022) Page 4/5- 21.

[note: 80]P68 at [25].

[note: 81]P68 at [27] – [28].

[note: 82]NE Day 10 (16 August 2022) Page 34/13 - 19.

[note: 83]NE Day 10 (16 August 2022) Page 36/9 - 25.

[note: 84]NE Day 10 (16 August 2022) Page 40/4 - 14.

[note: 85]NE Day 10 (16 August 2022) Page 47/21 - 48/2.

[note: 86]NE Day 12 (15 August 2023) page 80/10 - 80/20; NE Day 13 (16 August 2023 page 32/8 – 12.

[note: 87]NE Day 12 (15 August 2023) page 49/24 - 50/2.

[note: 88]NE Day 12 (15 August 2023) page 132/24 - 50/2.

[note: 89]NE Day 12 (15 August 2023) page 103/24 - 104/4; 136/22 – 137/7.

[note: 90]NE Day 12 (15 August 2023) page 132/10 - 134/5.

[note: 91]NE Day 11 (14 August 2022) page 47/5 - 12.

[note: 92]NE Day 11 (14 August 2022) page 47/13 - 21.

[note: 93]NE Day 12 (15 August 2022) page 132/18 - 22.

[note: 94]NE Day 13 (16 August 2022) page 40/7 - 14.

[note: 95]NE Day 13 (16 August 2023) Page 40/4 - 14.

[note: 96]P68 at [26].

[note: 97]NE Day 12 (15 August 2023) page 114/7 - 115/ 11.

[note: 98]NE Day 13 (16 August 2023) page 15/10 - 19.

[note: 99]See P68 at [30].

[note: 100]NE Day 13 (16 August 2023) page 12/17 - 23.

[note: 101]Morgan Stanley.

[note: 102]PCS at [53].

[note: 103]NE Day 15 (23 August 2023) page 38/1 - 8.

[note: 104]NE Day 17 (25 August 2023) page 42/20 - 24.

[note: 105]NE Day 18 (28 August 2023) page 87/8 - 20 .

[note: 106]NE Day 15 (23 August 2023) page 58/19 - 23.

[note: 107]NE Day 15 (23 August 2023) page 59/10 - 15.

[note: 108]NE Day 18 (28 August 2023) page 75/12 - 16.

[note: 109]NE Day 18 (28 August 2023) page 53/11 - 54/21.

[note: 110]NE Day 18 (28 August 2023) page 80/4 - 22.

[note: 111]NE Day 18 (28 August 2023) page 97/15 – 98/15.

[note: 112]NE Day 18 (28 August 2023) page 111/12 – 20.

[note: 113]NE Day 18 (28 August 2023) page 113/2 – 6.

[note: 114]NE Day 18 (28 August 2023) page 116/14 – 20.

[note: 115]With what the Prosecution said was direct and indirect interest of 99% in SP5.

[note: 116]NE Day 18 (28 August 2023) page 116/14 – 123/14.

[note: 117]NE Day 18 (28 August 2023) page 134/5 – p 135/24.

[note: 118]P57 p 1 – Email from Ms Tan dated 18 Dec 2015.

[note: 119]NE Day 17 (25 August 2023) page 49/8 - 14.

[note: 120]NE Day 18 (28 August 2023) page 36/10 - 20.

[note: 121]NE Day 18 (28 August 2023) page 50/20 - 52/8.

[note: 122]NE Day 16 (24 August 2023) page 16/6 - 20.

[note: 123]NE Day 18 (28 August 2023) page 39/5 - 43/11.

[note: 124]NE Day 17 (25 August 2023) page 6/16 - 7/6.

[note: 125]NE Day 18 (28 August 2023) page 16/24 – 18/13.

[note: 126]NE Day 18 (28 August 2023) page 149/7 – 11.

[note: 127]NE Day 19 (29 August 2023) page 36/15 – 37/10.

[note: 128]NE Day 24 (18 September 2023) page 7/4 - 21.

[note: 129]NE Day 18 (28 August 2023) page 39/9 - 17.

[note: 130]NE Day 18 (28 August 2023) page 40/15 - 20.

[note: 131]NE Day 16 (24 August 2023) page 48/10 - 15.

[note: 132]NE Day 23 (5 September 2023) page 47/9 - 18.

[note: 133]NE Day 16 (24 August 2023) page 96/15 - 20.

[note: 134]NE Day 23 (5 September 2023) page 46/10 - 47/8.

[note: 135]NE Day 17 (25 August 2023) page 11/4 - 9.

[note: 136]SOAF at [9].

[note: 137]NE Day 21 (31 August 2023) page 5/16 - 21.

[note: 138]NE Day 21 (31 August 2023) page 44/19 - 23.

[note: 139]NE Day 21 (31 August 2023) Page 5/22 - 6/2; NE Day 24 (18 September 2023) page 84/1 - 14.

[note: 140]P4 p 4 – Morgan Stanley Bloomberg chat; NE Day 19 (29 August 2023) page 95/10 - 17.

[note: 141]P64 – Morgan Stanley Bloomberg one-on-one chat.

[note: 142]It appears that Mr Lai left the chat room at around 10:00:52 am, and only re-joined at around 11:00 pm (P4 p 4 and p 6). the accused testified that this was not the typical format of a Bloomberg chat and therefore he could not explain what Mr Lai did to result in the notification that he had “left the room” in this particular format of the Bloomberg chat - NE Day 19 (29 August 2023) page 44/18 - 45/14.

[note: 143]NE Day 16 (24 August 2023) page 140/23 - 25; NE Day 22 (4 September 2023) page 145/8 - 13.

[note: 144]NE Day 21 (31 August 2023) page 45/16 – p 46/4.

[note: 145]NE Day 16 (24 August 2023) page 96/23 - 99/14.

[note: 146]NE Day 16 (24 August 2023) page 103/22 - 105/11.

[note: 147]P15 p 1 – Pareto Bloomberg chat; NE Day 7 (11 August 2022) page 95/19-25, 97/6 - 20.

[note: 148]NE Day 16 (24 August 2023) page 108/18 - 21; NE Day 17 (25 August 2023) page 18/16 - 23.

[note: 149]NE Day 7 (11 August 2022) page 97/14 - 20.

[note: 150]P12 – Bloomberg chat with MUFJ; NE Day 16 (24 August 2023) page 99/25 - 100/5.

[note: 151]NE Day 16 (24 August 2023) page 109/4 - 6.

[note: 152]NE Day 16 (24 August 2023) page 105/20-24; NE Day 19 (29 August 2023) page 132/22 - 133/2.

[note: 153]NE Day 23 (5 September 2023) page 6/5 - 7.

[note: 154]P4 pp 1-5 – Morgan Stanley main chat. NE Day 16 (24 August 2023) page 72/8 - 10.

[note: 155]NE Day 17 (25 August 2023) page 21/23 - 22/3.

[note: 156]NE Day 17 (25 August 2023) page 2/14 - 3/9.

[note: 157]NE Day 23 (5 September 2023) page 24/17 –25/13.

[note: 158]NE Day 16 (24 August 2023) page 127/7 - 128/9.

[note: 159]NE Day 17 (25 August 2023) page 2/18 - 3/1.

[note: 160]NE Day 21 (31 August 2023) Page 103/24 - 104/1.

[note: 161]P15 p 2 – Bloomberg chat with Pareto. Eastern Standard Time is 13 hours behind Singapore time/ NE Day 6 (10 August 2022) page 44/5 - 23.

[note: 162]NE Day 22 (4 September 2023) page 122/7 - 18.

[note: 163]P15 p 2 – Bloomberg chat with Pareto.

[note: 164]SOAF at [13] and [14].

[note: 165]NE Day 17 (25 August 2023) page 3/23 - 5/6.

[note: 166]DRCS at [34]

[note: 167]Oxford English Dictionary cited at Tab 37 of PBOA V2.

[note: 168]Second Reading of the Securities Industry Bill) at col 1443.

[note: 169]At pp.656.

[note: 170]PCS at [14].

[note: 171]DCS at [31].

[note: 172]PRS at [34].

[note: 173]DCS at [31(b)].

[note: 174]DCS at [68].

[note: 175]Section of the then 102(b) SIA states that: “It shall be unlawful for any person directly or indirectly in connection with the purchase or sale of any securities — (b) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person”

[note: 176]Ng Geok Eng at [34].

[note: 177]DRCS at [37] and [43].

[note: 178]25 “ A person (A) is said to do an act fraudulently if A does that act with intent to deceive another person (B) and by means of such deception, that an advantage should accrue to A or another person or detriment should befall B or another person (other than A), regardless of whether such advantage or detriment is temporary or permanent.”

[note: 179]PCS at [34].

[note: 180]DRCS at [39] – [40].

[note: 181]See for example, s 28(6)(b)(i) SFA, s 31(1)(b) SFA, s 46H(3)(c) SFA, s 86(4)(f)(i) SFA and s 292A(1)(i) SFA.

[note: 182]See DCS at [47] – [53].

[note: 183]PCS at [36(b)].

[note: 184]DRCS at [52].

[note: 185]DCS at [47].

[note: 186]DCS at [50]

[note: 187]NE Day 26 (12 March 2024) Page 14/27 – 31.

[note: 188]PRS at [29]

[note: 189]PRS at [29]

[note: 190]PRS at [25]

[note: 191]PCS at [42].

[note: 192]At p.653 to 654.

[note: 193]At p 1303.

[note: 194]At p 1300.

[note: 195]At p.1101.

[note: 196]At p.396.

[note: 197]At p.397.

[note: 198]See [16] – [17] of PRS.

[note: 199]See [47]- [52] of PCS.

[note: 200]At [1419] and [1430].

[note: 201]PCS at [65].

[note: 202]NE Day 25 (29 December 2023) page 31/27 - 31.

[note: 203]NE Day 1 (1 August 2022) page 29/2 - 5; 52/13 - 17; 80/10 - 11.

[note: 204]NE Day 25 (29 December 2023) page 23/22 - 24/10.

[note: 205]NE Day 25 (29 December 2023) Page 31/2 - 9.

[note: 206]NE Day 18 (28 August 2023) page 90/15 - 21.

[note: 207]NE Day 14 (21 August 2023) page 6/15 - 25.

[note: 208]DCS at [292] – [293].

[note: 209]See [243] above.

[note: 210]NE Day 18 (28 August 2023) page 53/11 - 54/21.

[note: 211]NE Day 23 (5 September 2023) page 118/17 - 23.

[note: 212]NE Day 2 (2 August 2022) page 10/20 - 11/7.

[note: 213]NE Day 16 (24 August 2023) page 142/18 - 22.

[note: 214]See P4 (‘Mr Lai, One Asia Investment has left the room’); NE Day 19 (29 August 2023) page 79/9 - 12.

[note: 215]P15 and P72; NE Day 22 (4 September 2023) page 111/22 - 25.

[note: 216]NE Day 23 (5 September 2023) page 131/14 - 20.

[note: 217]NE Day 25 (29 December 2023) page 70/9 - 16.

[note: 218]NE Day 25 (29 December 2023) page 5/12-16; 6/9 – 13.

[note: 219]NE Day 25 (29 December 2023) page 38/20 - 40/7.

[note: 220]See [4] of the PRS.

[note: 221]DCS at [324] – [435].

[note: 222]NE Day 25 (29 December 2023) at 12/16 - 29.

[note: 223]DCS at [307] - [312].

[note: 224]NE Day 19 (29 August 2023) page 102/7.

[note: 225]NE Day 19 (29 August 2023) Page 102/9 - 12.

[note: 226]DRCS at [163].

[note: 227]DRCS at [164].

[note: 228]NE Day 19 (29 August 2023) page 111/19 - 25; 118/5 - 13.

[note: 229]NE Day 21 (31 August 2023) Page 62/21 - 63/15.

[note: 230]NE Day 21 (31 August 2023) page 72/16 – 74/6 .

[note: 231]NE Day 21 (31 August 2023) page 67/12 -28.

[note: 232]DRCS at [175].

[note: 233]NE Day 21 (31 August 2023) page 102/15 - 103/15; 104/14 – 19.

[note: 234]DRCS at [175].

[note: 235]NE Day 21 (31 August 2023) page 99/8 - 11.

[note: 236]NE Day 23 (5 September 2023) page 50/19 - 51/12.

[note: 237]NE Day 23 (5 September 2023) page 51/13 - 53/12.

[note: 238]NE Day 19 (29 August 2023) page 104/20.

[note: 239]NE Day 19 (29 August 2023) page 106/21 - 23.

[note: 240]NE Day 16 (24 August 2023) page 104/22.

[note: 241]NE Day 16 (24 August 2023) page 109/20 - 110/21.

[note: 242]See P6. Mr Ray Xie had explicitly informed the accused at 10:08:50 a.m. that “sorry will be 25/MIE 18 and 20/MIE 19 for the block for now”

[note: 243]PCS at [110].

[note: 244]PCS at [107(b)] at footnote 127; see also NE Day 25 (29 December 2023) page 43/20 - 31.

[note: 245]NE Day 21 (31 August 2023) page 36/17 - 18.

[note: 246]NE Day 19 (29 August 2023) page 106/21 - 23.

[note: 247]NE Day 25 (29 December 2023) page 43/20 - 31.

[note: 248]NE Day 16 (24 August 2023) page 70/16 - 19.

[note: 249]NE Day 3 (3 August 2022) page 98/17 - 100/16.

[note: 250]NE Day 25 (29 December 2023) page 49/5 - 9.

[note: 251]NE Day 24 (18 September 2023) page 88/8 -25.

[note: 252]NE Day 19 (29 August 2023) page 10/21 - 23.

[note: 253]NE Day 21 (31 August 2023) page 15/1 - 8; See P82 at Q671 - 672.

[note: 254]NE Day 21 (31 August 2023) Page 15/15 – 21; 16/16 – 20.

[note: 255]DRCS at [187].

[note: 256]SOAF Tab 27.

[note: 257]NE Day 17 (25 August 2023) page 52/6 - 17.

[note: 258]DRCS at [207].

[note: 259]NE Day 22 (4 September 2023) page 11/10 - 18.

[note: 260]NE Day 22 (4 September 2023) page 92/24 – 93/11.

[note: 261]NE Day 22 (4 September 2023) page 114/8 to 117/3.

[note: 262]NE Day 7 (11 August 2022) Page 97/14- 20.

[note: 263]NE Day 22 (4 September 2023) Page 41/20 - 23.

[note: 264]PCS at [108(c)].

[note: 265]NE Day 26 (4 September 2023) page 102/5 - 8.

[note: 266]NE Day 16 (24 August 2023) page 119/14-17.

[note: 267]NE Day 26 (12 March 2024) page 29/1-6.

[note: 268]NE Day 26 (12 March 2024) page 26/11 - 29/6.

[note: 269]DCS at [241] and [242].

[note: 270]See D33, Mr Reshad’s message timestamped at 16:25:57 hrs.

[note: 271]PCS at [108(b)].

[note: 272]DRCS at [207].

[note: 273]After removing Mr Reshad’s own spread.

[note: 274]NE Day 8 (12 August 2022) page 49/19 – 50/15.

[note: 275]NE Day 17 (25 August 2023) page 2/21.

[note: 276]NE Day 17 (25 August 2023) page 24/21 - 22.

[note: 277]NE Day 16 (24 August 2023) page 95/9 - 15.

[note: 278]NE Day 24 (18 September 2023) page 114/22 – 115/3.

[note: 279]NE Day 8 (12 August 2022) page 40/18 - 41/1.

[note: 280]NE Day 19 (29 August 2023) page 87/18 – 25.

[note: 281]NE Day 19 (29 August 2023) page 96/24 – 97/15.

[note: 282]NE Day 7 (11 August 2022) page 36/15 - 24.

[note: 283]P68 p 2 – Mr Cheong’s Expert Report at [12].

[note: 284]NE Day 22 (4 September 2023) page 144/15 - 18.

[note: 285]NE Day 11 (14 August 2023) page 66/11 - 22.

[note: 286]NE Day 12 (15 August 2023) pages 136/4 - 137/7.

[note: 287]NE Day 11 (14 August 2023) page 66/20 - 22.

[note: 288]DRCS at [226].

[note: 289]NE Day 11 (14 August 2023) page 118/4 - 21.

[note: 290]NE Day 18 (28 August 2023) page 122/8 - 12.

[note: 291]NE Day 18 (28 August 2023) page 118/2 - 5.

[note: 292]NE Day 18 (28 August 2023) page 124/24 – 125/3.

[note: 293]NE Day 24 (18 September 2023) page 39/23 - 40/13.

[note: 294]NE Day 21 (31 August 2023) page 127/15 - 128/14.

[note: 295]P68 p 11-12 – Mr Cheong’s Expert Report at [32].

[note: 296]Based on the estimated exchange rate on 19 January 2016.

[note: 297]See P31, page 6 (SP5 NAV Pack for January 2016).

[note: 298]See P68 p 11-12 – Mr Cheong’s Expert Report at [32].

[note: 299]DFRSS at [36].

[note: 300]As stated above, for this calculation, the Defence did not consider the accused’s indirect interest in SP5 held through OAIP.

[note: 301]DFRSS at [38] – [40].

[note: 302]See DFRSS at [42] – [45]. The Defence did not consider the accused’s indirect interest in SP5 held through OAIP.

[note: 303]NE Day 6 (10 August 2022) page 34/10 - 12.

[note: 304]NE Day 1 (1 August 2022) Page 26/7 - 10.

[note: 305]NE Day 27 (11 April 2024) page 42/4 - 7.

[note: 306]The Prosecution had revised the figure for gain made by the accused taking into account as well the accused’s indirect sharing in SP5 (see PFRS at [11]).

[note: 307]See SOAF at [1].

[note: 308]NE Day 21 (31 August 2023), page 34/17 - 21.

[note: 309]PFRSS at [45].

[note: 310]NE Day 28 (2 July 2024) page 3/4 - 7.

[note: 311]For example based on the telephone conversation between Mr Reshad and the accused, transcribed in P55.

"},{"tags":["Criminal Law – Offences – Betting – Gaming Prohibitions – Sentencing Principles – Criminal Procedure and Sentencing – Sentence – Imprisonment"],"date":"2024-09-26","court":"District Court","case-number":"District Arrest Case No 941384 of 2017 and 3 ors, Magistrate's Appeals No 9150 of 2024 - 01","title":"Public Prosecutor v See Chye Huat","citation":"[2024] SGDC 229","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32218-SSP.xml","counsel":["Sunil Nair (Attorney-General's Chambers) for the Public Prosecutor","K Jayakumar Naidu (Jay Law Corporation) for the Accused."],"timestamp":"2024-10-02T16:00:00Z[GMT]","coram":"Wong Li Tein","html":"Public Prosecutor v See Chye Huat

Public Prosecutor v See Chye Huat
[2024] SGDC 229

Case Number:District Arrest Case No 941384 of 2017 and 3 ors, Magistrate's Appeals No 9150 of 2024 - 01
Decision Date:26 September 2024
Tribunal/Court:District Court
Coram: Wong Li Tein
Counsel Name(s): Sunil Nair (Attorney-General's Chambers) for the Public Prosecutor; K Jayakumar Naidu (Jay Law Corporation) for the Accused.
Parties: Public Prosecutor — See Chye Huat

Criminal Law – Offences – Betting – Gaming Prohibitions – Sentencing Principles – Criminal Procedure and Sentencing – Sentence – Imprisonment

26 September 2024

District Judge Wong Li Tein:

Introduction

After a prolonged period of intensive investigations, the police conducted crime-busting operations in November 2016 and arrested 49 persons for their involvement with a major online gambling ring operating out of Singapore by a trio of three brothers. One of those arrested was the Accused, See Chye Huat, male 55 years of age, a trusted runner in the gambling ring and one of the leader’s brother-in-law.

2       The Accused faced four charges proceeded against him as follows:

(a)     One count under s 5(1) of the Organised Crime Act 2015 (Act No. 26 of 2015) (“OCA”) for being a member of an organised crime group from 1 June 2016 to 27 November 2016 in DAC-941384-2017;

(b)     One count under s 5(a) of the Common Gaming Houses Act (Cap 49, Rev Ed 1985) (“CGHA”) for assisting in the carrying on of a public lottery sometime from 1 January 2013 to 1 February 2015 ($8.15 million deposits) in DAC-941385-2017;

(c)     One count under s 11(1) of the Remote Gambling Act 2014 (Act 34 of 2014) read with s 109 Penal Code 1871 for abetting the provision of a Singapore-based remote gambling service from 2 February 2015 to 27 November 2016 ($3.15 million deposits) in DAC-941386-2017; and

(d)     One count under s 11(1)(a) of the OCA punishable under s 11(3)(a) of the same Act for retaining $104,495.00 knowing that it was property obtained by an organized crime group in DAC-941387-2017.

3       After having considered fully the facts of the case, the Prosecution’s Address on Sentence and the Accused’s Mitigation Plea, I sentenced the Accused as follows:

Charge No.

Offence Section

Order of Court

DAC-941384-2017

S 5(1) of the OCA

18 months' imprisonment

DAC-941385-2017

S 5(a) of the CGHA

18 months' imprisonment and a fine of $50,000.00 in default 3 months’ imprisonment

DAC-941386-2017

S 11(1) of the RGA

read with s 109 of the Penal Code

18 months' imprisonment

DAC-941387-2017

S 11(1)(a) of the OCA punishable under s 11(3)(a) of the OCA

8 months' imprisonment



4       The sentences in DAC-941385-2017 and DAC-941386-2017 were ordered to run consecutively but concurrently with the sentences in DAC-941384-2017 and DAC-941387-2017. The aggregate sentence imposed was 36 months’ imprisonment with effect from 6 August 2024 and a fine of $50,000.00 in default 3 months’ imprisonment. The Accused, being dissatisfied, has filed an appeal against his sentence. He is currently serving sentence.

5       These are the grounds for the sentences imposed.

The Charges

6       The proceeded charges read as follows:

DAC-941384-2017 (1st Proceeded Charge)

You…are charged that you, from 1 June 2016 to 27 November 2016 (both dates inclusive), in Singapore, were a member of a group, knowing that the group was a locally-linked organised criminal group, to wit, you acted as a ‘Runner’ of the group which included Seet Seow Huat, Seet Seo Boon, Seet Sian Thian, Lim Beng Tiong, See Mui Khim, and Ang Poh Seng, which had, as one of its purposes, the obtaining of a financial benefit from the commission by Seet Seow Huat, Seet Seo Boon, and Seet Sian Thian, of offences of providing Singapore-based remote gambling services under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014), and you have thereby committed an offence punishable under section 5(1) of the Organised Crime Act 2015 (Act No. 26 of 2015).

DAC-941385-2017 (2nd Proceeded Charge)

You…are charged that you, from 1 January 2013 to 1 February 2015 in Singapore, did assist in the carrying on of a public lottery, to wit, by being a ‘Runner’ who managed monies amounting to approximately $8,154,729.97 particularized as follows:

S/no.

Account no.

Amount

Transactions

1

POSB 085-12XXX-X

S$25,941.80

9

2

DBS 006-7-00XXX

S$5,500.00

1

3

DBS 029-021XXX-X

S$835,270.00

89

4

OCBC 534-012XXX-XXX

S$1,845,754.67

381

5

OCBC 667-848XXX-XXX

S$729,864.00

91

6

UOB 366-304-XXX-X

S$3,374,166.30

364

7

UOB 138-305-XXX-X

S$585,970.00

52

8

UOB 366-302-XXX-X

S$495,336.20

104

9

SCB 42-2-988XXX-X

S$45,503.00

20

10

SCB 53-0-830XXX-X

S$199,424.00

12

Total

S$8,142,729.97

1123



in relation to public lotteries conducted through www.asure6.net and www.888pool.net and you have thereby committed an offence punishable under section 5(a) of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed).

DAC-941386-2017 (3rd Proceeded Charge)

You…are charged that you, from 2 February 2015 to 27 November 2016 in Singapore, engaged with Seet Seow Huat, Seet Seo Boon, Seet Sian Thian, Lim Beng Tiong, See Mui Khim, and Ang Poh Seng (collectively, “the co-conspirators”), in a conspiracy to provide a Singapore-based remote gambling service, through the websites www.asure6.net and www.888pool.net, and in pursuance of that conspiracy and in order to the doing of that thing, you assisted the co-conspirators as a runner in the collection and distribution of prize monies and money’s worth paid or staked by others in remote gambling which amounted to approximately $3,150,673.19 particularised as follows:

S/no.

Account no.

Amount

Transactions

1

POSB 085-12XXX-X

S$45,021.00

12

2

DBS 006-7-00XXXX

S$1,129,977.75

216

3

DBS 029-021XXX-X

S$4,540.00

3

4

OCBC 534-01X-XXX

S$458,149.44

53

5

OCBC 667-84803X-XXX

S$250,000.00

29

6

UOB 366-304-XXX-X

S$446,971.00

123

7

UOB 138-305-XXX-X

S$549,454.00

62

8

UOB 366-302-XXX-X

S$54,000.00

11

9

SCB 42-2-988XXX-X

S$62,900.00

11

10

SCB 53-0-830XXX-X

S$149,660.00

6

Total

S$3,150,673.19

526



a Singapore-based remote gambling service was committed in consequence of your abetment, and you have thereby committed an offence punishable under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014) read with section 109 of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-941387-2017 (4th Proceeded Charge)

You…are charged that you, on 27 November 2016, at or about 5.05pm, at Block 721 Yishun Street 71, #XX-XXX, Singapore, did retain property, to wit, $104,495.00, which you knew was illegally obtained by an organised criminal group which had, as one of its purposes, the obtaining of a financial benefit from the commission by Seet Seow Huat, Seet Seo Boon, and Seet Sian Thian, of offences of providing Singapore-based remote gambling services under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014), and you have thereby committed an offence under section 11(1)(a) and punishable under section 11(3)(a) of the Organised Crime Act 2015 (Act No. 26 of 2015).

Statement of Facts

7       The detailed facts of this case were found in the Statement of Facts (“SOF”) which the Accused admitted to without qualifications. For purposes of explaining my decision, I set out briefly the pertinent facts below.

Background information

How the Accused got involved with illicit gambling activities with Eric Seet

8       Sometime in 2011, the Accused was asked by his brother-in-law, 64-year-old Seet Seow Huat Eric (“Eric Seet”), to work in his illegal 4D business as a runner. He was to collect money from punters and other runners of the business and hand the money to Eric Seet personally or to deposit them into specific bank accounts controlled by Eric Seet. The Accused was to work on lottery draw dates, which were typically on Sundays and Mondays, or on the few days thereafter if runners requiredmore time to settle their accounts after the draw dates. In exchange, Eric Seet paid the Accused a monthly salary of S$2500.00.

9       Police investigations found that the Accused’s first transaction for Eric Seet took place on 15 April 2011, and he continued working for Eric Seet until his arrest on 27 November 2016 for a total of 68 months. During this time, he received at least S$ 170,000.00 in remuneration from Eric Seet.

How the Accused got involved with illicit gambling activities with Philip Seet

10     Sometime in 2012, the Accused was also asked by Eric Seet’s brother, 72-year-old Seet Sian Thian Philip (“Philip Seet”) to be a runner for the latter’s illegal 4D business. The Accused would collect money from other people working for Philip Seet either monthly or once every two to three weeks. Philip Seet paid him $3000.00 every year in the form of a red packet during Chinese New Year.

11     Police investigations found that the Accused’s first transaction for Philip Seet took place on 19 April 2012, and he continued working for Philip Seet until his arrest on 27 November 2016 for a total of around five years. During this time, he received at least S$15,000.00 in red packets from Philip Seet.

How the Accused got involved with illicit gambling activities with Steven Seet

12     Sometime in January 2013, the Accused was approached by Eric Seet’s brother, 55-year-old Seet Seo Boon Steven (“Steven Seet”) to be a runner in his illegal 4D business. The Accused would collect money from other runners working for Steven Seet and hand them to Steven Seet. In exchange for his work, Steven Seet paid the Accused $2000.00 monthly and bonuses of $3000.00 annually between 2014 and 2016 in the form of a red packet during Chinese New Year.

13     Police investigations found that the Accused’s first transaction for Steven Seet took place on 3 January 2013, and he continued working for Steven Seet until his arrest on 27 November 2016 for a total of around five years. During this time, he received at least S$94,000.00 from Steven Seet in the form of salary and bonuses.

Total remuneration received by the Accused from the illicit gambling activities

14     For working for Eric Seet, Philip Seet and Steven Seet (collectively known as the “Seet brothers”) in their illegal 4D business up until his arrest, the Accused received a total of S$288,000.00 over the course of 68 months.

Overview of the Seet brothers’ illegal 4D business

15     The Seet brothers were the leaders of a remote gambling organized crime group (“the Syndicate”) from 1 June to 26 November 2016. The Accused was roped in to assist as a runner for the Syndicate as he was a relative and trusted to handle large amounts of money.

16     After a long period of thorough investigations which culminated in raids conducted in November 2016, 49 people were arrested for their involvement with the Syndicate headed by the Seet brothers during this period.

17     Broadly, the Syndicate comprised the following member groups:

(a)     the three syndicate leaders, namely the Seet brothers, who operated remote gambling websites www.asure6.net and www.888pool.net;

(b)     the leaders’ runner, namely the Accused, who took instructions from them regarding the collection and transfer of money from gambling-related activities;

(c)      three administrative and two IT staff who assisted with operations in the Syndicate;

(d)      four shareholders who received a cut of the profits gained or paid for losses suffered by the Syndicate on www.asure6.net and www.888pool.net; and

(e)      three main clusters which actively collected bets, which consisted of:

(i)       a cluster led by shareholder Lim Beng Tiong comprising a runner and two sub-groups;

(ii)       a cluster led by shareholder Lean Kay Cheong; and

(iii)       a general cluster led by the Seet brothers comprising two shareholders and two agents who collected bets.

Administrative and IT staff

18     The three administrative Staff working for the Syndicate were:

(a)     Lai Yen San, female 33 years old;

(b)     Koo Kah Yee, female 30 years old; and

(c)     Tok Poh Ling, female 50 years old.

19     The two IT staff were:

(a)     Woo Woei Juem, male 43 years old, who provided IT website support for the Syndicate’s accounting website, aabooks.net, which he created to keep records of deposits and withdrawals related to the Seet brothers’ illegal remote gambling business; and

(b)     Lim Zhaoming Edwin, male 38 years old, who set up and maintained the illegal 4D websites, www.escrown.net and www.asure6.net.

Shareholders

20     The shareholders of the Syndicate were:

(a)     Seet Siau Khuang, male 71 years old, Philip Seet’s agent who collected illegal bets on the outcome of the 4D and and Toto draws conducted by Singapore Pools (Private) Limited (“Singapore Pools”). A portion of the 4D bets was transferred to www.asure6.net and/or www.888pool.net;

(b)     Wong Choi San, female 64 years old, Philip Seet’s agent who collected illegal 4D and Toto bets. A portion of the 4D bets was transferred to www.asure6.net and/or www.888pool.net;

(c)     Ang Poh Seng, male 56 years old, a shareholder of the remote gambling 4D websites www.asure6.net and www.888pool.net; and

(d)     See Mui Khim, female 55 years old, a shareholder of the remote gambling 4D websites www.asure6.net and www.888pool.net. She was Eric Seet’s wife and the Accused’s sister.

Main cluster led by Lim Beng Tiong

21     Lim Beng Tiong, male 55 years old, was a shareholder and operator of remote gambling websites, www.88lionking.net, www.hub12356.net, www.asure6.net and www.888pool.net. He was assisted by his runner, Lim Beng Yeow, male 47 years old, who would collect and distribute money related to business of the cluster for him. The bets received from the agents within this cluster would be entered into www.88lionking.net and www.hub12356.net, with a portion of the bets transferred to www.asure6.net and www.888pool.net.

22     Lim Beng Tiong’s Cluster comprised two sub-groups. Sub-Group 1 consisted of the following persons:

(a)     Toh Bee Leh, female 59 years old, an agent would assisted Lim Beng Tiong by accepting illegal 4D and Toto bets;

(b)     Siah Thiam Chai, male 70 years old, an agent who assisted Lim Beng Tiong by accepting illegal 4D and Toto bets.

(c)     Neo Lay Wah, female 53 years old, an agent who assisted Lim Being Tiong by accepting illegal 4D and Toto bets.

23     Sub-Group 2 consisted of the following persons:

(a)     Ow Choon Bok, male 43 years old, who operated illegal 4D and Toto website www.ss772.net with Ow Gowan Hock as the co-operator. The bets received from agents within this sub-group would be entered into www.ss772.net. This website was programmed to receive a limited value of bets, with the excess to be transferred to www.88lionking.net;

(b)     Ow Gowan Hock, male 73 years old, who operated www.ss.772.net, with Ow Choon Bok;

(c)     Cheau Biau Teck, male 64 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock;

(d)     Poh Boon Kheng, male 59 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock; and

(e)     Chai Chiek, female 66 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock.

Main cluster led by Lean Kay Cheong

24     Lean Kay Cheong, male 62 years old, was a shareholder and operator of remote gambling website www.peng8888.com. He was assisted by his runner, Seah Ee Lam, male 68 years old, who would collect and distribute money related to business of the cluster for him. The bets received from the agents within this cluster would be entered into www.peng8888.com or transferred to www.asure6.net and www.888pool.net.

25     Lean Kay Cheong and Eric Seet had an arrangement for a portion of the 4D bets collected by the former to be transferred to the latter. Lean Kay Cheong was also a shareholder of www.asure6.net and www.888pool.net and would receive a cut of the profit from both websites.

26     Lean Kay Cheong’s cluster consisted of the following persons:

(a)     Lim Teng Kok, male 69 years old, Lean Kay Cheong’s master agent who assisted him in accepting illegal 4D and Toto bets for www.peng8888.com. Lim Teng Kok had 16 agents under him who assisted him in collecting illegal 4D and Toto bets;

(b)     Edi, male 40 years old, the IT technician who assisted Lean Kay Cheong with the set up and maintenance of www.peng8888.com;

(c)     Toh Hee Choye, male 65 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(d)     Lim Poi Hwa, female 63 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(e)     Ng Eng Thiam, male 63 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(f)     Ng Kim Huat, male 66 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(g)     Or Poh Soon, male 55 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf; and

(h)     “Ah Lian”, female age unknown, one of Lean Kay Cheong’s accomplices and an agent who operated out of Malaysia who collected illegal 4D bets on Lean Kay Cheong’s behalf.

The Accused’s arrest

27     The Accused was arrested at about 6.58pm on 27 November 2016 at about 6.58 pm at his home by a party of police officers on suspicion that he had committed offences under the RGA. The following items were seized from him:

(a)     One yellow bag containing S$57,418.00;

(b)     One white envelope containing cash of S$20,000.00;

(c)     One white bag containing cash of S$27,077.00;

(d)     One Samsung Note 5 mobile phone;

(e)     One Samsung Galaxy S4 mobile phone;

(f)     Two calculators;

(g)     Some pieces of paper with entries;

(h)     One OCBC deposit slip;

(i)     One envelope with entries;

(j)     One Nokia mobile phone;

(k)     One stack of paper with entries;

(l)     One blue notepad with entries;

(m)     Some small pieces of paper with 2 clips; and

(n)     One Garmin Global Positioning System.

28     Investigations revealed that the accused maintained five bank accounts which were used solely for monetary transactions connected to the Syndicate’s illegal remote gambling activities:

(a)     DBS bank account number 08366XXXX;

(b)     UOB bank account number 416110XXXX;

(c)     UOB bank account number 899045XXXX;

(d)     OCBC bank account number 55073612XXXX; and

(e)     Hong Leong fixed deposit account number 1104043XXXX.

Facts relating to DAC-9441384-2017 (1st charge)

29     Investigation revealed that from 1 June to 27 November 2016 the Accused was a member of the Syndicate headed by the Seet brothers, involving Lim Beng Tiong, See Mui Khim and Ang Poh Seng. In particular, he was a runner for the Seet brothers.

30     The Accused was aware that the Syndicate was an illegal remote gambling business and worked closely with them by assisting them with the following:

(a)     collecting money from their respective agents, which would either be handed over to them in person or deposited by the accused into their designated bank accounts;

(b)     disbursing cash to their respective agents as payout for winnings under the instructions under their instructions; and

(c)     collecting cheques for payment by their agents to settled their gambling accounts and handing these cheques over to the relevant Seet brother to whom the cheque was made out to.

31     He was aware that the illegal gambling operations were syndicated and organised in nature as the Syndicate utilised assigned code references to its agents and the Accused knew who these code references belonged to. For instance, “B”, “BA”, “BB” and “AS” codes were syndicate members under Steven Seet, whilst the “M” codes indicated syndicate members under Philip Seet. The Accused acted as the sole intermediary between the Seet brothers and their respective agents, and handled all the funds that were transacted between the Seet brothers and the other syndicate members.

32     In this regard, the Syndicate was connected to operators of numerous illegal gambling websites including www.asure6.net, www.888pool.net, www.peng8888.com, www.88lionking.net, www.hub12356.net, and www.ss.772.net, with numerous sub-groups and clusters. Lean Kay Cheong’s cluster alone comprised at least 89 agents, of which only seven were arrested.

33     The www.asure6.net website had at least 36 registered shareholders but not all were successfully arrested. It generated an average revenue of about S$370,000 per 4D draw date, amounting to approximately S$1.11 million in revenue on average per week for three 4D draw dates per week. From 1 June to 27 November 2016 (24 week period), the Syndicate’s estimated revenue amounted to around S$26.64 million.

Facts relating to DAC-941385-2017 (2nd charge)

34     In the course of investigations, Steven Seet identified the Accused as his runner, who would collect and make payments to syndicate members under his instructions and on his behalf. The Accused would also collect and hand over cheques to be deposited into bank accounts controlled by Steven Seet. Whilst he did not always have specific knowledge of what each transaction was for, the Accused was aware that all these funds related to the Syndicate’s illegal gambling activities conducted through www.asure6.net and www.888pool.net.

35     Between 3 January 2013 and 26 January 2015, 1123 cheques were deposited into bank accounts controlled by Steven Seet. Each of these cheques were issued by a syndicate member working under Steven Seet and handed to the Accused, who would in turn hand them to Steven Seet. Investigations showed that the total amount transacted through these bank accounts during this period amounted to S$8,142,729.79 and represented Steven Seet’s earnings from his illegal gambling business during this period. The bank accounts were stated in the table reproduced below:

\"\"

Facts relating to DAC-941386-2021 (3rd charge)

36     Between 5 February 2015 and 24 November 2016, 526 cheques were deposited into bank accounts countrolled by Steven Seet. Each of these cheques were issued by a syndicate member working under Steven Seet and handed to the Accused, who would in turn hand them to Steven Seet. Investigations showed that the total amount transacted through these bank accounts during this period amounted to S$3,150,673.19 and represented Steven Seet’s earnings from his illegal gambling business during this period. The bank accounts were stated in the table reproduced below:

\"\"

Facts relating to DAC-941387-2017 (4th charge)

37     At the time of the Accused’s arrest on 27 November 2016 at about 5.05pm, a total of S$104,495.00 in cash was found in his home and seized as follows:

(a)     one yellow bag containing S$57,418.00;

(b)     one white envelope containing cash of S$20,000.00; and

(c)     one white bag containing cash of S$27,077.00;

38     The Accused admitted that the seized cash were illegal earnings of the Syndicate from their Singapore-based remote gambling activities. The Accused was arrested before he could receive instructions from the Seet brothers on how to handle the money.

Antecedents

39     The Accused was untraced.

Prosecution’s Address on Sentence

40     The Prosecution submitted for a global sentence of 36 to 40 months’ imprisonment and a fine of $50,000.00 to be meted out against the Accused, broken down as follows:

Offence

Sentence sought

1st charge under s 5(1) of the OCA

18 - 20 months’ imprisonment (concurrent)

2nd charge under s 5(a) of the

CGHA

18 - 20 months’

imprisonment

A fine of $50,000.00 for either charge

3rd charge under s 11(1) of the RGA read with s 109 of the Penal Code

18 - 20 months’

imprisonment

4th charge under s 11(1)(a) of the OCA

8 – 10 months’ imprisonment

(concurrent)



1st Charge (DAC-9441384-2017) under s 5(1) of the OCA

41     In respect of the first charge under s 323 of the Penal Code, the Prosecution made reference to the sentencing framework in Public Prosecutor v Hermanto Bin Abdul Talib [2021] SGDC 205 (“Hermanto”) at [11] to [17] to assess the degree of harm caused by the Syndicate, the Accused’s culpability and finally adjusting the sentence for personal aggravating and mitigating factors.

42     It was submitted that the degree of harm caused was at the threshold of moderate and high, whilst the Accused’s culpability in this case was medium. The starting point would be 3 years’ imprisonment based on the Hermanto framework. Adjusting the starting point for personal aggravating and mitigating factors, which was his plea of guilt and lack of similar antecedents, it was submitted that an adjustment to 18 to 20 months’ imprisonment would be condign.

43     The learned DPP highlighted that Lim Beng Yeow (the runner for Lim Beng Tiong) was sentenced to 8 months’ imprisonment for a similar charge while Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment and a fine of $11,000.00.

3rd Charge (DAC-941386-2017) under s 11(1) of the RGA read with s 109 of the Penal Code

44     For the 3rd charge under s11(1) of the RGA read with s 109 of the Penal Code, the Prosecution relied on the sentencing framework in Koo Kah Yee v Public Prosecutor [2020] SGHC 261 (“Koo Kah Yee”) in urging the Court to assess first, the degree of harm caused by the Syndicate, secondly the Accused’s culpability, the starting point sentence before finally adjusting the sentence for personal aggravating and mitigating factors.

45     In this case, similar to Koo Kah Yee, the degree of harm was submittted to be at the lower end of severe and the Accused’s culpability was medium. The starting point as such would be 27 to 30 months’ imprisonment. However, taking into his plea of guilt and lack of similar antecedents, an adjustment to 18 to 20 months’ imprisonment would be appropriate. It was pointed out that Lim Beng Yeow (the runner for Lim Beng Tiong) was sentenced to 10 months’ imprisonment for a similar charge, whilst Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment.

46     In addition to an imprisonment term, the Prosecution urged the Court to impose a fine of $50,000.00 against the Accused in respect of either the 2nd or 3rd charge. The learned DPP pointed out that in Public Prosecutor v Elger Kua Meng Tern [2019] SGMC 5 at [55], it was noted that a fine in addition to imprisonment was necessary under both the CGHA and the RGA to counter the profit motive involved. As the offences under s 11(1) of the RGA, s 5 of the CGHA and s 5(3)(a) of the BA all involve the same legally protected interest, i.e. the interest to protect individuals and society from the harmful effects of illegal gambling services, similar sentencing considerations would apply. Where the offender received profit in excess of S$20,000.00, additional fines ought to be imposed to disgorge the benefits of offending.

47     In view of the fact that the Accused had received the total sum of $288,000.00 as wages rather than profit or criminal proceeds, it was submitted by the Prosecution that an additional fine of $50,000.000 imposed would be appropriate.

2nd Charge (DAC-941385-2017) under s 5(a) of the CGHA

48     For the 2nd charge under s 5(a) of the CGHA, the Prosecution submitted that the sentencing considerations were similar to those in the 3rd charge. Given the virtually identical manner of offending in the 2nd and 3rd charges, the assessment of harm and culpability in the 3rd charge may be adopted for the 2nd charge, save that the Accused’s culpability would be higher due to the larger amount involved in the 2nd charge.

49     Further, it was submitted that if a fine of $50,000.00 was not imposed for the 3rd Charge, it may instead be imposed for the 2nd charge. Although the Accused’s culpability was higher in this charge than in the 3rd charge, the maximum imprisonment term for a charge under s 11(1) of the RGA was higher than that of a charge under s 5(a) of the CGHA. A similar imprisonment term was hence an appropriate calibration on the facts of this case.

50     The Prosecution stated that Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 2 years’ imprisonment and a fine of $92,000 on a similar charge.

4th Charge (DAC-941387-2017) under s 11(1)(a) of the OCA

51     It was submitted that s 11(1) of the OCA targeted any dealings with property that a person in Singapore knows was illegally obtained by an organised criminal group. Under s 11(3) of the OCA, the prescribed punishment for the offence was a fine not exceeding S$250,000 or to imprisonment for a term not exceeding 5 years or to both.

52     The total value of the property dealt with and how integral it was in advancing the Syndicate’s purpose or reach should have a strong bearing on sentence when assessing the harm caused. As for culpability, the duration of the offender’s involvement in dealing with illegally obtained property and the manner in which the offender dealt with said property would be relevant factors.

53     Given that the prescribed punishment for the offences under s 11(1) of the OCA and s 5(1)(a) of the OCA were the similar, the Prosecution sought to use the sentencing matrix as a reference point and indicated that this case would fall under the upper ends of the low harm and low culpability category.

54     Applying the harm-culpability matrix, the indicative sentence would be 1 year’s imprisonment. Adjusting it for the mitigating factors of the Accused’ plea of guilt and lack of similar antecedents, a sentence of 8 – 10 months’ imprisonment would be just and appropriate.

55     The Prosecution pointed out that Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment for dealing with $327,661.00.

Running of sentences and global sentence

56     In terms of running of sentences, the Prosecution submitted that it would be just and appropriate for two of the sentences with imprisonment terms between 18 and 20 months to run consecutively to reflect the overall criminality of the Accused’s offending. In addition, the Prosecution submitted that the Accused should be imposed with a fine of $50,000.00 to disgorge his earnings from working as a runner for the Syndicate leaders. The total proposed sentence would not be substantially above the normal level of sentences for the most serious of the individual offences involved such as to offend the totality principle.

57     It was highlighted for the Court’s reference the sentences imposed against other accused persons in the Syndicate with comparable work scopes:

(a)     Seah Ee Lam, the runner for Lean Kay Cheong, was sentenced to a global sentence of 3 years and 4 months’ imprisonment and a fine of $108,000.00;

(b)     Tok Poh Ling, an administrative staff working for the Syndicate, was sentenced to a global sentence of 37 months’ imprisonment and a fine of $92,000.00; and

(c)     See Mui Khim, a shareholder of the Syndicate, was sentenced to a global sentence of 40 months’ imprisonment and a fine of $90,000.

Mitigation Plea

58     Defence Counsel submitted a written mitigation plea on behalf of the Accused submitting for a global sentence of 20 months’ imprisonment and a fine of $20,000.00 with individual sentences as follows:

Offence

Sentence sought

1st charge under s 5(1) of the OCA

17 months’ imprisonment (concurrent)

2nd charge under s 5(a) of the

CGHA

10 months’

imprisonment

A fine of $20,000.00 for either charge

3rd charge under s 11(1) of the RGA read with s 109 of the Penal Code

10 months’

imprisonment

4th charge under s 11(1)(a) of the OCA

7 months’ imprisonment

(concurrent)



59     It was highlighted that the Accused was a family man who valued his family deeply. He had been married for 24 years with a 22-year-old daughter who was pursuing a Diagnostic Radiology degree at the Singapore Institute of Technology. The Accused’s highest level of education was Primary 4 and he had acted on the instructions of his brother-in-law, Eric Seet. His sister, See Mui Khim, was married to Eric Seet. As a result of these criminal proceedings, the Accused’s own bank accounts had been frozen and this had affected his daily life and caused financial burdens to him and his family.

60     The Accused started working for Eric Seet and Steven Seet at their coffeeshop located at Block 416 Bedok Avenue 2 (“the Coffeeshop”). Additionally, the Accused also received a full salary from the other businesses ran by Eric Seet and Steven Seet during the period he was working at the coffee shop. The Accused was tasked with depositing monies into the Syndicate’s bank accounts purely because he was a family member and the Seet brothers trusted him.

61     It was submitted by the Defence that the Accused’s culpability was on the low to medium end of the scale as he was merely acting on orders from the Seet brothers. He was just a runner and did not have much direct involvement in the operations as he did not hold a high position in the Syndicate. He did not want to ask too many questions of Eric Seet as the latter was married to his sister and he did not want to “make things difficult for her”.

62     Defence counsel urged the Court to consider that this was the Accused’s first brush with the law. In terms of culpability, the Defence subnitted that it would be low as the Accused was a “mere runner” and coffee shop employee who simply carried out instructions from the Seet brothers[note: 1], who did all the planning and premeditation of offences. Although he was aware of the ongoing activities of the Syndicate, he did not have a higher level of sophistication in the Syndicate and his culpability would be lower than that of the agents. When the offences came to light, he had cooperated fully in police investigations.

63     Whilst acknowedging that the three-step sentencing framework in Hermanto applied in this case and that the harm caused by the syndicate here was moderate to high, it was submitted by the Defence that the Accused’s culpability was not higher than other runners from other clusters because he “merely helped the brothers bank in the cash, which involved the earnings from the coffee shop, into requisite bank accounts”. In fact, his role in the organisation was “miniscule” compared to the other members in the organisation[note: 2] and he had not personally gained anything[note: 3]. It was further submitted that there were very few aggravating factors in this case, which were outweighed by the mitigating factors.

Sentencing Considerations

1st Charge (DAC-941384-2017) under s 5(1) of the OCA

64     The prescribed punishment under s 5(1) of the OCA was a fine not exceeding $100,000 or an imprisonment term not exceeding 5 years or both.

65     I was guided by the proposed sentencing framework set out in Hermanto, which comprised three steps, namely, (i) to assess the of harm caused by the Syndicate, going on (ii) to assess the Accused’s culpability in coming to a starting point sentence, and finally (iii) to adjust the sentence for personal aggravating and mitigating factors.

66     The sentencing matrix to arrive at the indicative starting point sentence would be as follows:

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Step 1: Assessing the harm caused by the Syndicate

67     In the first step, the following factors relating to the Syndicate would be relevant for the Court’s consideration:

(a)     its illegal purpose and how dangerous or serious it was;

(b)     its organization and scale; and

(c)     the negative impact it had on society.

68     In this case, the raison d’etre of the Syndicate was solely to obtain financial gain from illicit remote gambling activities. In doing so, it had to encourage or at least entice members of the community at large, both local and overseas, to breach gambling laws and indulge in unlawful and addictive behaviour. As observed by the learned Chief Justice in In Koo Kah Yee v Public Prosecutor [2020] SGHC 261 (“Koo Kah Yee”) at [62], the use of the internet acts as a powerful multiplier that extends the reach of gambling activities. The nature and design of online punting often lend themselves to repetitive play and compulsive conduct. This can leads to a proliferation of negative behaviour with an undesirable impact on society.

69     The Syndicate had a wide reach with at least 49 members consisting of shareholders, agents and runners, who in turn engaged with and collected bets from lower tier punters. It even had an overseas operation centre in Malaysia with workers who assisted with maintaining records of illegal bets from the sheer volume of activities which the Syndicate was involved in. An estimated S$26.64 million was generated from the collection of illegal bets through www.asure6.net alone in a six-month period from 1 June 2016 to 27 November 2016. The Syndicate was no old-fashioned punting ring. It utilised technology to create two remote gambling websites with automated standard functions such as the calculation of bets and profits to ensure that operations were efficient and effective, thereby making it easy for both agents and punters to place bets and settle transactions seamlessly.

70     I agreed with the Prosecution that the degree of harm caused by the Syndicate in this case was between moderate and high.

Step 2: Assessing the Accused’s culpability

71     In the next step of determining the Accused’s culpability, the following considerations would be taken into account:

(a)     his role and position in the hierarchy of the Syndicate;

(b)     the degree of control or power which he wielded;

(c)     the duration of his association with the Syndicate;

(d)     the functions he performed in the Syndicate;

(e)     his motives for being part of the Syndicate; and

(f)     his knowledge of the Syndicate’s purpose, scale and activities.

72     The Defence compared the Accused’s culpability to Wong Choi San, a 64-year-old female who was Philip Seet’s agent. She assisted in collecting illegal 4D and Toto bets and regularly transported staff from Singapore to Malaysia. It was submitted that her culpability would be much higher than the Accused as he “only acted as a runner and his task involved banking in cash to the requisite bank accounts”[note: 4]. As she was sentenced to 10 months’ imprisonment with no fine, Defence counsel submitted that the Accused should received the same or a lower sentence.

73     Defence counsel also compared the Accused’s culpability to that of his sister, See Mui Khim, who was a Syndicate shareholder and was actively involved in the Syndicate’s operations. She gave instructions to lower-tier members such as runners and agents and also directed operations in Malaysia. See Mui Khim was sentenced to 40 months’ imprisonment and a fine of $90,000 and it was argued by the Defence that the Accused should receive a lower sentence.

74     Having considered the Accused’s involvement in the Syndicate fully, I was unable to agree with the Defence. The Accused was no “mere runner” in the grand context of the Syndicate’s operations and was not as innocent as he was made out to be. He was considered the “chief runner” of the Syndicate as he worked directly with the Seet brothers and on their instructions, would collect and distribute moneys for illegal gambling operations[note: 5]. Because of his close connection with them, being Eric Seet’s wife’s brother, he was given extensive duties, the most important of which was to deposit revenue collected from the remote gambling websites into bank accounts as instructed by the them. This was a crucial role with huge amounts of monies passing through his hands in the form of cheques. Because it was such an important task, it made sense that the Seet brothers entrusted it to a single person – one in whom they must have had complete trust. The Accused apparently did his job faithfully and and lived up to expectations. The Accused was also relied upon to run the coffeeshop belonging to the Seet brothers. I noted that had been involved in the Syndicate since its early days, beginning from his involvement under Eric Seet from 15 April 2011.

75     I accepted that the Accused was not one of the masterminds in the Syndicate and hence would place his culpability lower than the shareholders, such as his sister See Mui Khim. However, his culpability was the highest amongst the runners and should be placed above the average agent and below one of the Syndicate’s smaller shareholders. I considered that the Accused’s culpability would be medium.

Step 3: Adjusting for personal aggravating and mitigating factors

76     Based on the sentencing matrix, the indicative starting point sentence against the Accused would be 2.5 to 3 years’ imprisonment.

77     In this case, the main mitigating factors in the Accused’s favour would be his plea of guilt and lack of similar antecedents. I compared his involvement with that of Lim Beng Yeow (the runner for Lim Beng Tiong), who was sentenced to 8 months’ imprisonment and Seah Ee Lam (the runner for Lean Chay Cheong), who was sentenced to 16 months’ imprisonment and a fine of $11,000, on a similar charge. As his role was higher than that of Seah Ee Lam, I was of the view that a sentence of 18 months’ imprisonment for the first charge would be appropriate.

2nd Charge (DAC-941385-2017) under s 5(a) of the CGHA and 3rd charge (DAC – 941386 – 2017) under s 11(1) of the RGA read with s 109 of the Penal Code

78     Although the 2nd and 3rd charges concerned different provisions under separate pieces of legislation, I noted that the offending conduct of the Accused forming the subject matter of these two charges were the same in substance, and hence the considerations for the appropriate sentence on each of these charges may take reference from one another.

79     The prescribed punishment for an offence under s 5(a) CGHA was a fine of not less than S$20,000.00 and not more than S$200,000.00, and an imprisonment term not not exceeding five years. The prescribed punishment for an offence under s 11(1) of the RGA was a fine of not less than S$20,000.00 and not more than S$500,000.00 and/or an imprisonment for a term not exceeding seven years.

80     In Koo Kah Yee where the offender was also part of the Seet brothers Syndicate and charged under s 11(1) of the RGA, the learned Chief Justice Sundaresh Menon set out a five-step sentencing framework to be applied for an offence of providing Singapore-based remote gambling services under s 11(1) of the RGA:

(a)     identify level of harm caused by the offence;

(b)     assess the offender’s level of culpability;

(c)     identify the indicative sentencing range;

(d)     identify the appropriate starting point within the indicative sentencing range; and

(e)     make adjustments for offender-specific factors.

Step 1: Assessing the degree of harm caused by the offence

81     In the first steps, factors to be considered in assessing the degree of harm caused would include:

(a)     the aggregate value of bets involved;

(b)     whether a syndicate was involved;

(c)     the involvement of a transnational element; and

(d)     difficulty in detection.

82     In Koo Kah Yee at [60], the Court noted that a transational remote gambling syndicate was involved with an aggregate value of bets collected exceeding $18 million. Whilst ordinary gambling activities were generally hard to detect because they were often carried out in secret, remote gambling activities were even harder to detect due to the added cloak of anonymity to both the provider and participants:

“In a related vein, the difficulty of detecting the offences in question may also be a relevant consideration… It is not surprising that ordinary gambling activities are often carried out secretly in order to evade detection. However, when gambling activities are offered on remote or online platforms, these tend to add a further cloak of anonymity to both the providers and participants and make detection even more challenging… The means by which the offenders provide the remote gambling services and evidence of the methods employed to conceal the illicit activities would also be pertinent considerations.”

83     The offender in Koo Kah Yee was an adminstrative staff and had acted as a runner as well. The degree of harm was placed at the lower end of severe.

84     In the present case, the 3rd charge involved a sum of $3.15 million, whilst the 2nd charge involved a sum of $8.14 million. I was of the view that the degree of harm for the 3rd charge should be placed at the lower end of severe as well.

Step 2: Assessing the Accused’s culpability

85     In the second step to determine the Accused’s culpability, the Court should take into account the following factors:

(a)     the degree of planning and premeditation;

(b)     the level of sophistication;

(c)     the offender’s role in the offence(s);

(d)     his personal gain from the offence(s); and

(e)     the duration of offending.

86     In the context of online gambling, the learned Chief Justice noted that culpability of the offender would be increased as the use of the internet served as a powerful multiplier which extended the reach of gambling activities. For offences under s 11(1) of the RGA, the level of sophistication would entail, amongst other things, consideration of the nature of remote communications used, the modus operandi of the remote gambling ring and the scale of the operations: Koo Kah Yee at [62].

87     Here, the Accused was the runner for the Syndicate leaders and managed five banks account used for the Syndicate’s remote gambling activities. In total, he had deposited around $3.15 million worth of cheques into bank accounts for the Syndicate. Although his earnings from working with the Syndicate did not correspond directly with the high amounts of money which he was tasked to handle, over the course of approximately 5 years, he was paid $288,000.00. I accepted that operatives who we essentially runners carrying out the instructions of their leaders would generally be less culpable than the masterminds behind the criminal operations: Koo Kah Yee at [63]. In this case, the Accused’s culpability would be placed as medium, taking into account all the relevant factors.

Steps 3 and 4: Identifying the indicative sentencing range and the appropriate starting point within the indicative sentencing range

88     Based on the degree of harm caused and the Accused’s assessed culpability, the indicative starting point sentence against the Accused for the 3rd charge would be an imprisonment term of between 2 to 2.5 years as per the sentencing framework in Koo Kah Yee:

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89     The amount of money handled in the 2nd charge, being S$8.14 million, was higher than the S$3.15 million handled in the 3rd Charge.

Step 5: Adjusting the final sentence for personal aggravating and mitigatin factors

90     Having determined the indicative starting sentence, I next considered the offender-specific factors in this case to decide if any adjustments ought to be made having regard to the applicable offender-specific factors. These would be the aggravating factors, which can include offences which make be taken into consideration for purposes of sentences, the offender’s relevant antecedents and evident lack of remorse. In terms of mitigating factors, the Court should consider if the offender had pleaded guilty or claimed trial, and his level of cooperation with the authories.

91     The main mitigating factors here, as for the 1st charge, would be the Accused’s plea of guilt and lack of similar antecedents. I took into account the sentences received by Lim Beng Yeow (the runner for Lim Beng Tiong) and Seah Ee Lam (the runner for Lean Chay Cheong) for a similar charge, which was 10 months’ and 16 months’ imprisonment respectively, and was of the view that a sentence of 18 months’ imprisonment for the 3rd charge would be appropriate against the Accused in this case.

92     Having decided that the Accused should be sentenced to a term of 18 months’ imprisonnment on the 3rd charge under the Koo Kah Yee sentencing framework and given that the subject matter of his offending in the 3rd charge was in essence similar to that in the 2nd charge, I was of the view that 18 months’ imprisonment should be imposed against him viz the 2nd charge as well. In imposing this sentence, I took reference from the sentence received by Seah Ee Lam (the runner for Lean Chay Cheong) on a similar charge at 2 years’ imprisonment and a fine of $92,000.00.

93     The Prosecution had sought for a disgorgement fine of $50,000.00 to be imposed against the Accused in respect of either the 2nd or 3rd charges. The question as to deductions from revenue generated by the illicit activities was also considered in Koo Kah Yee at [41], in cases where the Court imposes a fine. As held by the learned Chief Justice, the purpose of a fine was to disgorge the offender’s actual profits and ensure that he would not be better off by reason of having committed the offence. Fines imposed to disgorge benefits from criminal acts served a confiscatory purpose, such that the Court may take cognizance of the net profit or actual gain made by the offender in calibrating the quantum of the fine: Koh Jaw Hung v Public Prosecutor [2019] 3 SLR 516 at [48].

94     To this end, the starting point for a fine would have been the entire revenue representing the offender’s profits. However, the Court may take into account work rendered by the Accused for legitimate businesses owned by the Seet brothers, in this case, managing the coffeeshop: Koo Kah Yee at [42]. I was mindful of the fact that the sum of $288,000.00 which the Accused received for his services in the Syndicate was not purely profit or financial gain from criminal activities but paid to him as wages for work done. As such, a sum of $50,000.00 would be fair and reflective of the Court’s disapprobation of his involvement in the Syndicate’s operations.

4th Charge (DAC-941387-2017) under s 11(1)(a) punishable under s 11(3)(a) of the OCA

95     The prescribed punishment for an offence under s 11(3)(a) of the OCA was a fine not exceeding S$250,000.00 or an imprisonment for a term not exceeding five years or both, targetting anyone in Singapore who dealt with property knowing that it was illegally obtained by an organised criminal group. The value of the property dealt with and its purpose in advancing the Syndicate’s objectives, as well as the length of time the Accused dealt with the property and the manner in which he did so would therefore have a strong bearing on the sentence to be meted out.

96     This case fell within the upper end of the low harm and low culpability category.

97     In this case, the value of the property dealt with amounted to $104,495.00. I agreed with the Prosecution that this was the lowest amount involved in the charges against the Accused and that given the scale at which the Syndicate was operating, this particular sum of money cannot be said to be was integral to its operations. In fact, the Accused was found with this sum of money and had not yet dealt with it as he was still waiting for instructions from the Seet brothers.

98     Applying the harm-culpability matrix in Hermanto, which would be helpful insofar as the prescribed punishment for both the 1st and 4th charges were similar, the indicative starting point sentence for the 4th charge would be an imprisonment term of 1 year. Calibrating it for the Accused’ plea of guilt and lack of similar antecedents, which were personal mitigating factor, I was of the view that a sentence of 8 months’ imprisonment would be fair and just in this case.

Running of sentences

99     In terms of running of sentences, I was of the view that two of the sentences should run consecutively to reflect the overall criminality of the Accused’s conduct, such that the total proposed sentence would not be substantially above the normal level of sentences for the most serious of the individual offences involved such as to offend the totality principle. In doing so, I took reference from the global sentences which were imposed on other members of the Syndicate with comparable roles and job scopes as follows:

(a)     Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to a global sentence of 3 years and 4 months’ imprisonment and a fine of $108,000.00;

(b)     Tok Poh Ling (an administrative staff working for the Seet brothers) was sentenced to a global sentence of 37 months’ imprisonment and fine of $92,000.00; and

(c)     See Mui Khim (a shareholder of the Syndicate and Eric Seet’s wife) was sentenced to a global sentence of 40 months’ imprisonment and a fine of $90,000.00.

Conclusion

100    In summary, I imposed the sentences against the Accused as follows:

Charge No.

Offence Section

Order of Court

DAC-941384 -2017

s 5(1) of the OCA

18 months’ imprisonment

DAC-941385 -2017

s 5(a) of the CGHA

18 months’ imprisonment and a fine of $50,000.00 in default 3 months’ imprisonment

DAC-941386 -2017

s 11(1) of the RGA read with s 109 of the Penal Code

18 months’ imprisonment

DAC-941387 -2017

s 11(1)(a) punishable under s 11(3)(a) of the OCA

8 months' imprisonment



101    The sentences in DAC-941385-2017 and DAC-941386-2017 were ordered to run consecutively but concurrently with the sentences in DAC-941384-2017 and DAC-941387-2017. The aggregate sentence imposed on the Accused was 36 months’ imprisonment with effect from 6 August 2024 and a fine of $50,000.00 in default 3 months’ imprisonment.

102    In ordering the sentence against the Accused, I was mindful that it did not offend the totality principle, that it was not a crushing sentence and that it was in keeping with his past record and his future prospects of rehabilitation.

103    The Accused being dissatisfied with my decision had lodged an appeal against his sentence. He indicated that he did not wish to apply for bail pending appeal and is currently serving sentence.

[note: 1]Mitigation plea at [22]

[note: 2]Mitigation Plea at [26]

[note: 3]Mitigation Plea at [27]

[note: 4]Mitigation Plea at [29]

[note: 5]Reference to description of the Accused at [4(b)] of Koo Kah Yee.

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Public Prosecutor v Ong Kian Peng
[2024] SGDC 227

Case Number:District Arrest Case No. 909445 of 2024 and 3 others, Magistrate's Appeal No. 9167 of 2024-01
Decision Date:26 September 2024
Tribunal/Court:District Court
Coram: Kelly Ho
Counsel Name(s): DPP Lu Huiyi for the Public Prosecutor; Mohamed Sarhan s/o Mohamed Ikhbar (Public Defender's Office) for the Offender.
Parties: Public Prosecutor — Ong Kian Peng

Criminal Law – Offences – Outrage of Modesty

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9167/2024/01.]

26 September 2024

District Judge Kelly Ho:

1       Having preyed on young children as they were less likely to report him to the Police, Ong Kian Peng (“the Offender”), a 32-year-old male serial molester, pleaded guilty to two counts of aggravated outrage of modesty (“OM”) and one count of criminal force.[note: 1] The victims were nine, 11 and 15 years of age at the time of the offences, which were committed publicly near HDB flats and in a shopping mall. The acts of molest involved the Offender making the victims touch his penis over his pants and the act of criminal force involved the Offender grabbing the victim’s hand and placing it onto his palm. In my view, the sentences sought by the Prosecution and the Defence, which were in the region of 10 to 11 months’ imprisonment with and without caning respectively, were unduly lenient and did not adequately reflect the Offender’s overall criminality. I therefore sentenced him to 15 months’ imprisonment and two strokes of the cane.

Introduction

2       On 14 August 2024, the Offender pleaded guilty to the following three charges:

DAC-909445-2024 (“the 1st Charge”)

You … are charged that you, on the 12th day of December 2023, at or about 5.58 p.m., at the vicinity of Block 283 Bukit Batok East Avenue 3, Singapore 650283, did use criminal force to one [XXX (“V1”)] (a female, 9 years old), intending to outrage her modesty, to wit, by using your hand to grab the arm of the said V1 (a female, 9 years old), and guiding the hand of the said V1 (a female, 9 years old) to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(2) of the Penal Code 1871 (“Penal Code”).

DAC-909446-2024 (“the 2nd Charge”)

You … are charged that you, on the 13th day of May 2024, at or about 6.26 p.m., at the ground floor lift lobby of Block 288C Bukit Batok Street 25, Singapore 652288, did use criminal force to one [XXX (“V2”)] (a male, 11 years old), intending to outrage his modesty, to wit, by using your hand to grab the arm of the said V2 (a male, 11 years old), and guiding the hand of the said V2 (a male, 11 years old) to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(2) of the Penal Code.

MAC-903689-2024 (“the 3rd Charge”)

You … are charged that you, on the 2nd day of February 2024, at or about 5.48 p.m., along the walkway adjacent to Valu$ Shop located at Level 3 of West Mall, 1 Bukit Batok Central Link Singapore 658713, did use criminal force to one [XXX (“V3”)] (a female, 15 years old), to wit, by using your hand to grab the hand of the said V3 (a female, 15 years old), and placing the hand of the said V3 (a female, 15 years old) onto your palm, you have thereby committed an offence punishable under Section 352 of the Penal Code.

3       The Offender also consented to the following charge being taken into consideration for the purposes of sentencing:

MAC-903688-2024 (“the 4th Charge”)

You … are charged that you, on the 20th day of December 2023, at or about 6.20 p.m., at the vicinity of Block 289F Bukit Batok Street 25, Singapore 655289, did use criminal force to one unknown male, intending to outrage his modesty, to wit, by using your hand to grab the arm of the unknown male, and guiding the hand of the said unknown male to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(1) of the Penal Code.

4       The Prosecution’s and the Defence’s respective sentencing positions are set out in the table below:

Charge

Prosecution’s Position

Defence’s Position

The 1st and 2nd Charges

(Aggravated OM)

10.5 to 11 months’ imprisonment and caning per charge (one of the sentences to run consecutively)[note: 2]

10 months’ imprisonment and no caning per charge (one of the sentences to run consecutively)[note: 3]

The 3rd Charge

(Criminal force)

Short custodial sentence (to run consecutively)[note: 4]

One day’s imprisonment (to run consecutively)[note: 5]

Total sentence

At least 10.5 months to 11 months’ imprisonment and caning in addition to a short custodial sentence[note: 6]

10 months’ and one day’s imprisonment[note: 7]



5       I did not agree with the sentences sought by both parties and imposed a global sentence of 15 months’ imprisonment and two strokes of the cane. This was achieved by running the sentences for both the aggravated OM charges consecutively after moderating the imprisonment terms of 10 months for the 1st Charge and nine months for the 2nd Charge down to eight and seven months respectively, on account of the totality principle. The sentence of imprisonment was backdated to the date of arrest, viz, 15 May 2024.

6       The Offender has filed an appeal against sentence and is currently serving his sentence.

Facts

7       The salient parts of the Statement of Facts which the Offender admitted to without qualification were as follows.

Facts pertaining to the 1st Charge – aggravated OM

8       On 12 December 2023, at or about 5.58pm, the Offender had seen V1 (female, nine years old) in the vicinity of Block 283 Bukit Batok East Avenue 3. V1 was walking towards a nail salon where her mother was working. The Offender approached V1, grabbed her arm and asked her where he could find a nail salon. V1 told him that her mother’s salon was next to them. When asked by the Offender where she did her nails, V1 replied that her mother did them.[note: 8]

9       The Offender then guided V1’s hand to touch his penis over his pants. He took a video of this using his handphone. The video showed the Offender grabbing V1’s hand and directing her to touch and tickle his groin area and legs over his pants. V1 was scared and anxious. She pulled her hand away and went to her mother’s salon.[note: 9]

Facts pertaining to the 2nd Charge – aggravated OM

10     On 13 May 2024, at around 6.15pm, while the Offender was on his way home from work, he saw V2 (male, 11 years old) sitting at a playground near Block 288C Bukit Batok Street 25. The Offender approached V2 and asked if he knew where the salon was, where V2 did his nails, and where V2 lived. V2 felt uncomfortable and tried to walk away. When V2 stood up, the Offender grabbed V2’s arm and placed V2’s hand on his right knee, before taking a photograph of V2’s hand with his handphone. The Offender then moved V2’s hand up and down the Offender’s knee over his clothing.[note: 10]

11     V2 broke free and moved towards the ground floor lift lobby of the block. The Offender followed V2 to the lift lobby where he grabbed V2’s hand and guided it to touch his penis over his pants. He took a photograph of V2’s hand touching his penis using his handphone. V2 managed to push the Offender away and ran to the pick-up point where he boarded his Grab car and left.[note: 11]

Facts pertaining to the 3rd Charge – criminal force

12     On 2 February 2024 at around 5.48pm, the Offender was walking around West Mall while waiting for an appointment with his social worker. He saw V3 (female, 15 years old) along the walkway adjacent to the Valu$ shop. The Offender asked V3 if she knew of any nail shop in the mall and she replied that she did not.[note: 12]

13     Thereafter, the Offender grabbed V3’s hand and placed it on his left palm. He then stroked her fingers and used his handphone to take a photograph of her fingernails. V3 pulled her hand away and moved away from the Offender. The Offender followed V3 and asked her to place her hand on his lap but she refused. V3’s mother exited the Valu$ shop and confronted the Offender who then left to meet his social worker.[note: 13]

Prescribed penalties

14     The prescribed punishment for an aggravated OM offence under s 354(2) of the Penal Code was imprisonment for a term which may extend to five years, or with fine, or with caning, or with any combination of such punishments.

15     A person convicted of an offence of criminal force under s 352 of the Penal Code shall be punished with imprisonment for a term which may extend to three months, or with fine which may extend to $1,500, or with both.

Antecedents

16     The Offender was untraced.

Parties’ submissions

Prosecution’s address on sentence

17     The Prosecution sought an overall sentence of “at least 10.5 to 11 months’ imprisonment on top of a short custodial sentence as well as the imposition of caning”.[note: 14]

18     In respect of the aggravated OM charges, the Prosecution referred to the sentencing framework in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”) which was affirmed by the Court of Appeal in BRJ v Public Prosecutor [2020] 1 SLR 849.[note: 15] It highlighted the following offence-specific factors in submitting that the case fell within the lower end of Band 2 of the framework: (i) the Offender had guided the victims’ hands to touch his penis albeit over clothes; (ii) V1 was especially young (nine years old); and (iii) the Offender had photographed or video recorded his offences.[note: 16] For the offender-specific aggravating and mitigating factors, the Prosecution pointed out that the Offender had consented to a charge under s 354(1) of the Penal Code being taken into consideration for the purposes of sentencing, and although the Offender was untraced, he had committed the 2nd Charge whilst under investigation for his earlier offences.[note: 17]

19     Had the Offender claimed trial, the Prosecution would have submitted for 15 months’ imprisonment per charge.[note: 18] As the Offender had pleaded guilty at Stage 1 of the proceedings, it applied a sentencing discount of about 30% to arrive at 10.5 to 11 months’ imprisonment.[note: 19] The Prosecution urged the Court to impose caning but did not submit on the appropriate number of strokes.[note: 20]

20     As regards the criminal force charge, the Prosecution was of the view that a short custodial sentence should be imposed as the Offender had targeted a young and vulnerable victim who was only aged 15.[note: 21]

21     Finally, while it acknowledged that the aggravated OM Charges involved different victims, the Prosecution opined that both sentences should run concurrently to avoid a crushing sentence.[note: 22] The Prosecution’s proposed total sentence of at least 10.5 to 11 months’ imprisonment in addition to a short custodial sentence and caning was derived by running the sentence for the criminal force charge consecutively with one of the other two sentences.[note: 23]

Defence’s mitigation and submissions on sentence

22     The Defence’s global sentencing position, viz, 10 months’ and one day’s imprisonment, was not too far off from the Prosecution’s.[note: 24] It submitted that a reduced sentence without caning was justified on account of the following mitigating factors: (i) the Offender’s remorse, willingness to seek treatment, and full cooperation with authorities; and (ii) his psychiatric conditions, viz, fetishistic disorder with paedophilic interest and a background of mild intellectual disability.[note: 25]

23     While acknowledging that there was no direct contributory link between the Offender’s psychiatric conditions and his commission of the offences, the Defence highlighted paragraph 31(f) of the IMH Report which ostensibly stated that for the purposes of a Mandatory Treatment Order, his conditions did contribute to the commission of the offences.[note: 26] In advocating for mitigating weight to be placed on the Offender’s conditions, the Defence cited Public Prosecutor v ASR [2019] 3 SLR 709 (“ASR (HC)”) and Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”).[note: 27]

24     Referencing the IMH Report, the Defence implored the Court to infer that the Offender did not understand the seriousness of his offence until he was in remand.[note: 28] It went further and argued that the Offender’s intellectual disability caused him to “only recently understand that his actions [were] wrong and that he should not have committed such offences” (emphasis added).[note: 29] The Defence subsequently retracted this position during the hearing.[note: 30]

25     In respect of the aggravated OM charges, the Defence was in agreement with the Prosecution that the offences fell within Band 2 of the GBR framework.[note: 31] However, it pushed for a lower sentence of 10 months’ imprisonment on account of the Offender’s intellectual disability.[note: 32]

26     For the criminal force charge, the Defence cited Public Prosecutor v Bander Yahya A Alzahrani [2017] SGDC 51 (“Bander Yahya”) where the offender was sentenced to one week’s imprisonment for a charge under s 352 of the Penal Code.[note: 33] In seeking one day’s imprisonment, the Defence pointed out the distinguishing and mitigating factors in the present case.[note: 34]

27     The Defence also contended that caning was inappropriate due to the Offender’s intellectual disability.[note: 35] It quoted passages from Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2nd Ed, 2019) (“Sentencing Principles”) and referred to several cases which will be discussed further at [52] below.[note: 36]

28     The Defence was aligned with the Prosecution that the sentences for the aggravated OM charges ought to run concurrently.[note: 37]

Decision on sentence

29     I broadly agreed with the parties’ proposed individual sentences for the three charges; where we diverged was in relation to which sentences should run consecutively. They took the view that the sentences for one of the aggravated OM charges and the criminal force charge should run consecutively. I disagreed and ran the sentences for both the aggravated OM charges, reduced to eight and seven months respectively owing to the totality principle, consecutively.

30     In my opinion, running the sentences as proposed by the Prosecution and the Defence would result in an inadequate sentence that would fall far short of reflecting the gravity of the offences and the Offender’s culpability. As regards caning, I concurred with the Prosecution that it was warranted and imposed one stroke per charge. The eventual sentence was therefore 15 months’ imprisonment and two strokes of the cane.

The relevance of the Offender’s psychiatric conditions

31     This was the main area of disagreement between parties. The Defence’s position was that some mitigating weight should be assigned to the Offender’s psychiatric conditions notwithstanding the lack of a direct contributory link, and a lower custodial term without caning should be imposed.[note: 38] In contrast, the Prosecution maintained that the Offender’s conditions were not mitigating as there was no direct contributory link and his judgment and self-control were not impaired.[note: 39]

32     At the outset, I should deal with a seemingly contradictory statement in the IMH Report which the Defence had relied on.[note: 40] The entire sub-paragraph, paragraph 31(f), is reproduced below for ease of reference:[note: 41]

He is assessed to be suitable for Mandatory Treatment Order (MTO). Compared to adult persons without fetishistic disorder, he has a higher risk of committing the offence compared to others. From this point of view, there is a contributory link to his offence.

[emphasis added]

33     At first glance, the italicised words above appeared to be inconsistent with an earlier sub-paragraph of the report, viz, paragraph 31(c) which stated:[note: 42]

There is no direct contributory link of his psychiatric conditions to his alleged offence as they did not impair his judgement, nor did they impair his self-control.

[emphasis added]

34     However, upon further review, it was clear that there was no inconsistency as the purport of paragraph 31(f) was simply that the Offender had a higher tendency of committing the offence compared to adults without a fetishistic disorder. Paragraph 31(c) of the IMH Report made it amply clear that the Offender’s fetishistic disorder (or his mild intellectual disability which the Defence had placed more reliance on) did not have a direct contributory link to his offences or impair his judgment or self-control which was the key consideration when determining whether mitigatory weight should be given.

35     As Sundaresh Menon CJ pronounced (at [61]) in the recent case of Public Prosecutor v Soo Cheow Wee and anor appeal [2024] 3 SLR 972 (“Soo Cheow Wee”), the presence of psychiatric conditions per se will not constitute a mitigating factor. The court is required to assess the causal link between the conditions and the commission of the offence. In particular, the “conditions must have had some impact on the offender’s mental responsibility” in one of the following ways (at [61]):

(a)     the offender did not possess the “basic cognitive ability” to perceive his acts and know their nature;

(b)     the offender did not possess the “moral and legal cognition” to know and appreciate whether the act was wrong, in the sense of it being contrary to law; or

(c)     the offender was unable to “exercise his will to control his actions”.

36     Paragraph 31(c) of the IMH Report stated unequivocally that there was “no direct contributory link” between the Offender’s conditions and commission of the offences, and his conditions did not impair his judgment or self-control. It was also apparent from the following paragraphs of the report that the Offender was well aware that his actions were wrong:[note: 43]

21.    Regarding the charge on 20 Dec 2023 [the 4th Charge]… He knew that what he did was not a right thing to do.

22.    Regarding the charge on 2 Feb 2024 [the 3rd Charge] … While he knew that it was wrong to hold her hand without her consent, he still did it because nobody was around her. He did not dare put her hand on his groin because he felt that the shopping mall was a crowded place. …

24.    … He explained that all his victims have been children so far because a child may not know what is going on, and “they won't make police report”. He did admit that “actually I also like adult hands”, but he recognised that an adult person “can straightaway bring me to the police station”. There had been times where he would unzip his pants and place the victim's hand on his underwear over his groin region, but this was only done if he was out of public sight, so that he would not get caught. He also admitted that he has been committing multiple similar offences since early 2023, but he did not get caught for it. Even though he recalled being arrested by the police once in Feb 2023, he continued to commit similar offence because he thought the offence was not very serious and that he may not get caught again …

[emphasis added]

37     Where the offender’s condition does not affect the commission of the offence, ie, there is no causal link between the condition and the commission of the offence, “the usual sentencing parameters and principles would apply” (Soo Cheow Wee at [62]). Hence, the Offender’s conditions should not be viewed as mitigating.

38     For completeness, I now address the cases and arguments advanced by the Defence. I first turn to the cases it cited to support its submission that mitigatory weight should be afforded to the Offender’s conditions. The first case was ASR (HC) which held (at [108]) that rehabilitation was particularly important when dealing with mentally disordered offenders.[note: 44] However, the Court of Appeal (“CA”) decision, Public Prosecutor v ASR [2019] 1 SLR 941 (“ASR (CA)”), which was more pertinent, affirmed the need for a causative link between the Offender’s condition and the offence. In this regard, the CA held (at [107]) that “the existence of a causal link between the respondent’s intellectual disability and his offending acts represented a specific means by which his intellectual disability reduced his culpability, namely, by affecting his control over his offending impulses” (emphasis added).

39     The next case of Low Ji Qing also did not aid the Defence. In that case, the offender’s disorder had “impaired his ability to control his desire to act on his fetishism” (emphasis in original) (at [53]).[note: 45] Additionally, the offender’s condition had also “affected his judgment predisposing him to stealing” (emphasis in original) (at [52]). Unlike the offender in Low, the Offender’s conditions neither impaired his judgment nor his self-control.[note: 46]

40     On the issue of whether the Offender possessed the moral and legal cognition to know and appreciate that his acts were wrong and contrary to the law, the Defence highlighted paragraphs 27 and 31(e) of the IMH Report (reproduced below):[note: 47]

27.    He expressed remorse of his actions and fear of the upcoming consequences. He shared that he realised this time how serious his offence was from this remand admission. He requested to get help in controlling his behaviour. He said that he would not dare to do it again because he “don't want go jail, don't want caning”. At multiple times during the interview sessions, he kept pleading for a lighter sentence.

31.e) He is at moderate risk of reoffending in terms of repeating the same act. This is seen from the fact that he has repeated his offence multiple times, and continued to do so even after the police arrested him once in Feb 2023. This is balanced with the fact that he now appears to recognise the seriousness of his offence and is remorseful of his actions.

[emphasis in original in bold; emphasis added in italics]

41     Paragraphs 27 and 31(e) of the IMH Report merely suggested that the Offender did not realise the severity of the potential punishment for the offences until he was in remand, and not that he was unaware that his acts were wrong or illegal which was the crux of the matter (see paragraph 35(b) above). As explained at [36] above, the Offender was plainly cognisant of the wrongfulness of his actions.

42     Given that the Offender’s mental conditions did not affect his mental responsibility and he was fully aware of the illegality of his actions, I declined to place any mitigating weight on them.

Sentences for the 1st and 2nd Charges – aggravated OM

43     The consensus between parties was that the GBR framework should apply in respect of the aggravated OM charges. There are three main steps in the GBR framework:

(a)     The court should first consider the offence-specific factors which can be broadly categorised as such: (i) degree of sexual exploitation; (ii) circumstances of the offence; and (iii) harm caused to the victim.[note: 48]

(b)     The court should then situate the offence within one of the following sentencing bands:[note: 49]

(i)       Band 1 (at most one aggravating factor): less than one year’s imprisonment;

(ii)       Band 2 (two or more aggravating factors): one to three years’ imprisonment; and

(iii)       Band 3 (most serious instances): three to five years’ imprisonment.

(c)     Finally, the court should take into account the offender-specific aggravating and mitigating factors.

44     The following offence-specific aggravating factors raised by the Prosecution were present:[note: 50]

(a)     The Offender caused the victims to come into contact with his private part (penis), albeit that there was no direct contact.

(b)     V1’s age, viz, nine years old, was significantly lower than the threshold of 14 years (the 1st Charge).

(c)     The Offender had recorded his offending conduct by taking a video (the 1st Charge) and a photograph (the 2nd Charge) of his actions.

45     The Defence did not specifically address the Court on the above factors but accepted that the aggravated OM charges fell within Band 2. For Band 2, apart from an imprisonment term of between one and three years, “[c]aning will nearly always be imposed, and the suggested starting point would be at least three strokes of the cane” (GBR at [33]).[note: 51] As there was no skin-to-skin contact with the victims’ private parts (or that of the Offender’s), I accepted the Prosecution’s submission that the indicative sentence should be at the lower end of Band 2, viz, around one year’s or 12 months’ imprisonment.[note: 52] The indicative sentence for the 1st Charge should be slightly higher than that for the 2nd Charge given the factor at paragraph 44(b) above.

46     At the final step, I took into consideration the following offender-specific aggravating and mitigating factors raised by parties:[note: 53]

(a)     The Offender had consented to the 4thCharge (s 354(1) of the Penal Code) being taken into consideration.

(b)     The offence in the 2nd Charge was committed whilst the Offender was being investigated for his earlier offences, demonstrating his recalcitrance.

(c)     The Offender’s early plea of guilt which warranted a 30% reduction in sentence.

(d)     His lack of antecedents.

47     Bearing the above factors in mind, had the Offender claimed trial, I would have sentenced him to 14 months’ imprisonment for the 1st Charge and 13 months’ imprisonment for the 2nd Charge. Since he had pleaded guilty expeditiously, the appropriate sentence would have been 10 and nine months’ imprisonment for the 1st Charge and 2nd Charge, respectively.

48     Turning to the issue of caning, the recommended starting point for a Band 2 case is at least three strokes of the cane. I was of the view that caning was justified “as an additional deterrent” ([31] of GBR) given the facts and circumstances of the case canvassed above and imposed one stroke of the cane per charge. The Defence’s main argument against the imposition of caning appeared to be the Offender’s intellectual disability.[note: 54]

49     In support of its position, the Defence quoted the following passage from Sentencing Principles at para 29.037:

There may be a less compelling need to impose caning for the purpose of retribution or deterrence if the offender is mentally disordered at the time of the offence or is intellectually disabled. This is particularly so if there is a causal link between the offence and the offender’s mental condition.

[emphasis added]

50     It bore noting that the author merely suggested that there may be less need to impose caning where the offender is intellectually disabled; he did not actually assert that caning should not be imposed whenever an offender is intellectually disabled. Further, he had emphasised the significance of a causal link between the offender’s condition and his offence.

51     In this case, there was a strong impetus to impose caning for the aggravated OM charges given the nature and circumstances of the offences and the absence of a direct contributory link, let alone a causal link, between the offences and the Offender’s conditions.

52     The two cases mentioned in the Defence’s Plea-in-Mitigation were of no assistance to the Offender. For Public Prosecutor v Kok Weng Shang Bernard [2005] SGHC 64, the Defence quoted the following sentence from the judgment (at [28]), “[c]aning is not imposed in such cases as the accused persons would have been suffering from such abnormality of mind as would have substantially impaired their mental responsibility for their acts” (emphasis added).[note: 55] However, the Offender was not suffering from an abnormality of mind that substantially impaired his mental responsibility for his actions.

53     The offender in Public Prosecutor v Hwang Yew Kong [2006] SGHC 22 suffered from residual schizophrenia with residual hallucination and delusion, and there was some impairment of his self-control as he “was unable to ignore the hallucination and felt compelled to obey the voices telling him to stab his father” (at [11]).[note: 56] The second case was clearly distinguishable from the case at hand.

54     For completeness, I noted that the issue of whether an intellectually disabled offender should be caned was discussed in ASR (CA). The CA held (at [136]) that caning was precluded as it was generally imposed for its deterrent effect which was not applicable to the offender. This was because the offender was “not cognitively normal, and did not fully understand the gravity of his offending conduct” (ASR (CA) at [115]). Menon CJ explained (at [115]) that the offender’s intellectual disability attenuated the importance of general and specific deterrence considerably as there was a causal link between his intellectual disability and the offence, and his ability to fully appreciate the nature and quality of his actions was compromised.

55     The offender in ASR was considered to have a mental age of eight to 10 at the time of his offences and an “extremely low range of intelligence” (emphasis added), and his intellectual disability had impaired his impulse-control (ASR (CA) at [49], [67] and [68]). In contrast, the Offender’s intellectual disability was mild and did not impair his judgment or self-control.[note: 57] It also had no effect on his capacity to understand the nature of his acts (as explained in [35] to [42] above).

56     In light of the above, I rejected the Defence’s submission that the Offender should not be caned on account of his intellectual disability.

Sentence for the 3rd Charge – criminal force

57     Parties accepted that the custodial threshold was crossed.[note: 58] The Prosecution emphasised that the Offender had picked on a young and vulnerable 15-year-old victim in submitting for a short custodial sentence.[note: 59] To support its submission for one day’s imprisonment, the Defence referred to Bander Yahya where the offender was sentenced after trial to one week’s imprisonment for an offence under s 352 of the Penal Code.[note: 60] They reasoned that the Offender’s acts were not as egregious as those in Bander Yahya, he had pleaded guilty at the earliest opportunity, and he had suffered from an intellectual disability.[note: 61]

58     I took into account the aggravating and mitigating factors raised by parties save for the Offender’s intellectual disability. Considering all the factors and circumstances of the offence, I was of the view that three days’ imprisonment would be appropriate.

The appropriate global sentence

59     Having determined the individual sentences, I proceeded to consider what the aggregate sentence should be. Both parties’ submissions on this issue were brief.[note: 62] Despite recognising that the aggravated OM charges involved different victims, the Prosecution sought concurrent sentences “to prevent the total sentence from being crushing upon the accused”.[note: 63] The Defence simply agreed with the Prosecution’s position.[note: 64]

60     It is trite that sentencing is strictly within the court’s purview. The court is not obliged to sentence an offender in accordance with parties’ agreement, especially where scant reason was provided for the shared position. For example, in Public Prosecutor v Wong Tian Jun De Beers [2021] SGDC 75, the court at first instance ran five sentences consecutively despite parties’ common stance that only three sentences ought to run consecutively. The sentence imposed, viz, 42 months’ imprisonment and a fine of $20,000 (in default one month’s imprisonment) was substantially higher than the Prosecution’s and the Defence’s positions of at least 30 and no more than 24 months’ imprisonment respectively. On appeal, Menon CJ enhanced the custodial sentence to eight years and five months’ imprisonment (Wong Tian Jun De Beers v Public Prosecutor [2021] SGHC 273).

61     Pursuant to s 307(1) of the Criminal Procedure Code 2010, at least two sentences have to run consecutively as the Offender was sentenced to imprisonment for three distinct offences. In deciding which sentences to run consecutively, I considered whether the offences were unrelated. The general rule is that consecutive sentences should be imposed for unrelated offences (Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen”) at [41]). One of the key reasons for this rule was articulated by Menon CJ (at [46]) as follows:

Fourthly, and perhaps most intuitively, allowing a multiple offender to be punished less seriously, or even not at all, for a second or further offending would be a perverse outcome that flies in the face of any notion of justice. … public confidence in the administration of criminal justice requires the court to avoid any suggestion or impression that a multiple offender may benefit from some sort of bulk discount in sentencing. …

[emphasis added]

62     The three offences in the present case were without doubt unrelated as they were committed on separate occasions at distinct locations and involved different victims. They thus did not “form part of a single transaction” or involve a “single invasion of the same legally protected interest” (Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 at [39]). The starting point was thus that all three sentences should run consecutively.

63     I next applied the totality principle and took one “last look” at the entire case to satisfy myself that the cumulative sentence was “sufficient and proximate to the offender’s overall criminality” (Raveen at [73]). There are two limbs to this principle – the combined sentence must not be: (i) “substantially above the normal level of sentences for the most serious of the individual offences committed” or (ii) “crushing and not in keeping with [the offender’s] past record and future prospects” (Raveen at [73]). The sentencing judge may either reconsider the sentences to be run consecutively or calibrate the individual sentences if the collective sentence is too high (Raveen at [73]).

64     Running all three imprisonment terms consecutively would result in 19 months and three days’ imprisonment, which would be excessive. On the other hand, running only the sentences for one of the aggravated OM charges and the criminal force charge consecutively would lead to an inadequate sentence of only 10 months’ and three days’ imprisonment. This would be, in the words of Tay Yong Kwang J (as he then was) in Public Prosecutor v AUB [2015] SGHC 166 (“AUB”) at [25], “[giving] an unwarranted discount to the accused for multiple assaults”.

65     In that case, the offender pleaded guilty to two charges for the offences of sexual assault by penetration under s 376(2)(a) of the Penal Code (Cap 224, 2008 Rev Ed) and obscene act under s 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed), and consented to another charge of obscene act being taken into consideration. Although the offences involved the same location, same victim and an unwelcome invasion of the victim’s bodily integrity, and there were only two proceeded charges, consecutive sentences were imposed (AUB at [25]).

66     It was my considered view that the sentences for the two aggravated OM charges should be moderated downwards by two months per charge to eight and seven months’ imprisonment and made to run consecutively. The resulting sentence of 15 months’ imprisonment and two strokes of the cane was proportionate to the severity of the offences and the Offender’s general blameworthiness.

67     This sentence was not substantially above the normal level of sentences for an aggravated OM offence since the starting point for such an offence was 12 months’ imprisonment (see [45] above). It also did not offend the second limb of the totality principle. A sentence of 15 months’ imprisonment can hardly be said to be “an extremely long total sentence” that “will induce a feeling of hopelessness and destroy any expectation of a useful life after release” (Raveen at [75]).

Conclusion

68     The presence of a psychiatric condition does not automatically result in a reduction in sentence or the non-imposition of caning. Where the condition does not affect the offender’s mental responsibility as in this case, it should not be regarded as mitigating or displace the principle of deterrence. Ultimately, I did not find the sentences sought by the Prosecution and the Defence to be commensurate with the Offender’s overall criminality; I therefore imposed an aggregate sentence of 15 months’ imprisonment and two strokes of the cane.

[note: 1]Institute of Mental Health report dated 27 May 2024 (“IMH Report”) at para 24.

[note: 2]Prosecution’s Skeletal Submissions on Sentence (“PS”) at paras 6 and 8.

[note: 3]Defence’s Plea-in-Mitigation (“DS”) at para 3.

[note: 4]PS at paras 8 and 9.

[note: 5]Ibid.

[note: 6]PS at para 1.

[note: 7]Ibid.

[note: 8]Statement of Facts (“SOF”) at para 11.

[note: 9]SOF at para 12.

[note: 10]SOF at paras 14 and 15.

[note: 11]SOF at paras 16 and 17.

[note: 12]SOF at paras 2 and 3.

[note: 13]SOF at para 4 to 6.

[note: 14]PS at para 1.

[note: 15]PS at para 2.

[note: 16]PS at paras 3 and 4

[note: 17]PS at para 5.

[note: 18]PS at para 6.

[note: 19]Ibid.

[note: 20]PS at para 7.

[note: 21]PS at para 9.

[note: 22]PS at para 8.

[note: 23]PS at para 10.

[note: 24]DS at para 3.

[note: 25]DS at para 6.

[note: 26]DS at para 9.

[note: 27]DS at paras 11 and 12.

[note: 28]DS at para 14.

[note: 29]DS at para 15.

[note: 30]Notes of Evidence (“NE”), 14 August 2024, p 13, lines 10 to 14.

[note: 31]DS at para 19.

[note: 32]DS at paras 20 and 21.

[note: 33]DS at para 22.

[note: 34]DS at paras 23 and 24.

[note: 35]DS at para 25.

[note: 36]DS at paras 26 to 29.

[note: 37]DS at paras 31 and 32.

[note: 38]DS at paras 6(c), 9 and 10.

[note: 39]NE, 14 August 2024, p 11, lines 5 to 7.

[note: 40]DS at para 9.

[note: 41]IMH Report at para 31(f).

[note: 42]IMH Report at para 31(c).

[note: 43]IMH report at paras 21, 22 and 24.

[note: 44]DS at para 11.

[note: 45]DS at para 12.

[note: 46]IMH Report at para 31(c).

[note: 47]DS at para 14.

[note: 48]GBR at paras 27 to 30.

[note: 49]GBR at para 31.

[note: 50]PS at para 3.

[note: 51]PS at para 4 and DS at para 19.

[note: 52]PS at para 4.

[note: 53]PS at para 5 and DS at paras 7 to 17.

[note: 54]DS at paras 6(c), and 25 to 30.

[note: 55]DS at para 29.

[note: 56]DS at para 29.

[note: 57]IMH Report at para 31(a) and (c).

[note: 58]PS at para 9 and DS at para 24.

[note: 59]PS at para 9.

[note: 60]DS at para 22.

[note: 61]DS at para 23.

[note: 62]PS at para 8 and DS at paras 31 and 32.

[note: 63]PS at para 8.

[note: 64]DS at para 31.

"},{"tags":["Damages – Assessment","Contract – Contractual terms – Rules of construction – Consent judgment"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit No 1633 of 2018, Assessment of Damages No 173 of 2021","title":"Chew Hock Seng v Ng Teck Siong and another","citation":"[2024] SGDC 250","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32211-SSP.xml","counsel":["Ms. Lisa Sam (M/S Lisa Sam & Company) for the plaintiff","Mr. Wang Liansheng and Ms. Valerie Goh (M/s Bih Li & Lee LLP) for the first defendant"],"timestamp":"2024-10-01T16:00:00Z[GMT]","coram":"Teo Wei Ling","html":"Chew Hock Seng v Ng Teck Siong and another

Chew Hock Seng v Ng Teck Siong and another
[2024] SGDC 250

Case Number:District Court Suit No 1633 of 2018, Assessment of Damages No 173 of 2021
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Teo Wei Ling
Counsel Name(s): Ms. Lisa Sam (M/S Lisa Sam & Company) for the plaintiff; Mr. Wang Liansheng and Ms. Valerie Goh (M/s Bih Li & Lee LLP) for the first defendant
Parties: Chew Hock Seng — Ng Teck Siong — Sun Yiam Gwek — DTG & Co. Pte Ltd

Damages – Assessment

Contract  –  Contractual terms  –  Rules of construction  –  Consent judgment

23 September 2024

Judgment reserved.

Deputy Registrar Teo Wei Ling:

Introduction

1       The plaintiff is the owner of the property at 7 Siglap Avenue South (“House 7”). The first and second defendants are the owners of the property at 5 Siglap Avenue South (“House 5”). As the present assessment of damages proceeded only against the first and second defendants, I will refer to the first and second defendants collectively as “the defendants”.

2       In or around January 2015, the defendants decided to demolish and reconstruct House 5. Sometime in May 2015, the plaintiff noticed that House 7 had sustained damage, in particular, water seepage damage and cracks in the walls and ceilings.

3       Between August 2015 and August 2016, the plaintiff and the first defendant exchanged various emails and messages relating to the water seepage issues in House 7 noted by the plaintiff, and discussed remedial works to be done by the first defendant to rectify the issues. However, the plaintiff was not satisfied with the remedial works and claimed that the water seepage issues persisted.

4       Thereafter, the plaintiff engaged various parties to carry out surveys on the building condition of House 7, to identify defects and damage allegedly caused by the reconstruction works at House 5:

(a)     On 21 March 2017, Chesterfield Building Surveyors Pte Ltd carried out a survey on the building condition of House 7, and issued a report on 27 March 2017 (“the Chesterfield Report”);

(b)     Subsequently, the plaintiff engaged Mr. Chin Cheong of M/s Building Appraisal Pte Ltd (“BA”) to carry out a survey and inspection on property damage to House 7 and prepare a report on his observations and findings;

(c)     Mr. Chin Cheong carried out a first inspection on 13 November 2017, and a re-inspection on 27 December 2017, and issued his first report dated December 2017 (“BA’s First Report”) [note: 1];

(d)     On 19 February 2019, Mr. Chin Cheong carried out a further inspection and issued a supplementary report dated March 2019 (“BA’s Second Report”) [note: 2]; and

(e)     On 13 January 2020, Mr. Chin Cheong carried out a further inspection and issued a further supplementary report dated January 2020 (“BA’s Third Report”) [note: 3].

5       The plaintiff also obtained quotations in respect of rectification works for House 7. Of relevance to this assessment is the quotation obtained from Richfield Integrated Pte Ltd (“Richfield”) dated 24 September 2020[note: 4] (“Richfield Quotation”) for “rectification works required at the plaintiff’s property”[note: 5].

6       The Richfield Quotation contained quotations for various “renovation and/or repair works”, [note: 6] sorted into four different categories:

(a)     “A - Exterior”: works at the gate pillar, entrance metal gate, car porch, back yard, balcony, and roof;

(b)     “B - Interior”: works at the living room, kitchen, staircase, master bedroom, master bathroom, and third storey bathroom;

(c)     “C - Miscellaneous items”: painting works, scaffolding works as well as costs for labour, tools and materials; and

(d)     “D - Preliminaries”: general cleaning costs and costs for necessary permits and licences.

7       Each category contained an itemised list of proposed rectification works with a short description of the works to be done. Notably, the Richfield Quotation did not contain any references to any of BA’s Reports.

8       In the meantime, the plaintiff commenced the present action on or about 7 June 2018. His case is that the demolition and reconstruction works by the defendants caused damage to House 7, and the defendants are therefore liable in tort for negligence.

9       After seven days of trial, parties entered into a consent interlocutory judgment on 26 June 2020[note: 7] with damages to be assessed (“Consent Judgment”). Thereafter, the matter proceeded to assessment before me.

10     Some interesting issues for determination arose in the assessment. Notwithstanding the Consent Judgment, parties were in dispute as to the scope and extent of defects the Court could consider in assessing the appropriate damages to be awarded. The defendants claim that they should not have to pay rectification costs for all the defects and damage claimed by the plaintiff, but only for damage that was caused by the defendants’ reconstruction works. In essence, the defendants take the position that causation remains a live issue at the assessment stage. On the other hand, the plaintiff claims that insofar as there is a judgment on liability, causation cannot be challenged at the assessment stage now.

11     When there is a consent judgment on liability for damages to be assessed, does the court still have to determine causation before assessing and awarding damages? Should a consent judgment be interpreted like a contract and do the established principles of contractual interpretation therefore apply? What should the court consider when determining the scope of damages for assessment? These issues will be examined in the course of this judgment.

12     Having considered the matter carefully, I assess damages at $99,304.00 and set out below the reasons for my decision. A full breakdown of the damages assessed is set out at Annex 1.

The parties’ submissions

13     The joint opening statement set out a full itemised list of rectification works taken from the Richfield Quotation, as well as the plaintiff’s and defendants’ submissions in respect of each proposed rectification work item. The structure of cross-examination in the assessment hearing also appeared to be largely based on the list of proposed rectification works in the Richfield Quotation.

14     In his closing submissions at assessment, the plaintiff quantified his damage and losses at $214,905.80[note: 8], comprising costs for rectification works (as quoted in the Richfield Quotation) plus costs previously incurred by the plaintiff for interim or temporary rectification works.

15     In their closing submissions at assessment, the defendants took the position that the plaintiff is only entitled to $4,380 in damages, for instances where the plaintiff can prove that the alleged damage suffered was caused by the defendants’ reconstruction works. In this regard, the defendants’ main arguments were:

(a)     The alleged damage suffered by the plaintiff either did not exist or was not suffered by the plaintiff;

(b)     The plaintiff failed to establish factual causation, and the alleged damage suffered by the plaintiff was not caused by the reconstruction works; and

(c)     The quantum and scope of repairs claimed by the plaintiff were excessive and/or unreasonable.

16     In response, the plaintiff argued in closing submissions that the defendants’ expert had put up his opinion in contravention of “the ultimate issue rule”, and that the court should treat such evidence with “no weight”.[note: 9]

The Consent Judgment

17     Given that the present matter proceeded to assessment after parties had entered into the Consent Judgment, I was surprised that both parties chose to present their arguments and submissions based on the Richfield Quotation, rather than the Consent Judgment.

18     In my view, the starting point for assessment must be the Consent Judgment entered into on 26 June 2020. I set out in full the terms of the Consent Judgment:

IT IS HEREBY BY CONSENT ADJUDGED that:

1.     Judgment for the Plaintiff against the 1st and 2nd Defendants on matters set out in the 3 reports of Mr. Chin Cheong of Building Appraisal Pte Ltd dated December 2017, March 2019 and January 2020.

2.    Costs and disbursements, payable by the 1st and 2nd Defendants to the Plaintiff, are to be agreed or taxed.

3.     Damages, interest and costs of the Assessment of Damages hearing, payable by the 1st and 2nd Defendants to the Plaintiff, are to be assessed by the Registrar on the scope and quantum of rectification works required at No. 7 Siglap Avenue South Singapore 456267.

4.    The 1st and 2nd Defendants shall grant reasonable access, to the Plaintiff, his servants or agents, to No. 5 Siglap Avenue South Singapore 456265 to undertake such rectifications works ordered by the Registrar.

5.    Costs and disbursements, payable by the 1st and 2nd Defendants to the 3rd Defendant, whether on a standard or indemnity basis, are to be determined by the Court and for such quantum to be thereafter to be agreed or taxed.

[emphasis added in bold and underline]

19     What divides parties is how paragraph 3 of the Consent Judgment should be interpreted. Specifically, parties disagree whether an assessment “on the scope and quantum of rectification works required” means that the defendants can argue that they are only liable for some and not all of the rectification works for defects and damages claimed by the plaintiff.

Issues

20     As such, the issues before me in assessment are as follows:

(a)     Whether the defendants can challenge causation at the assessment stage;

(b)     What is the scope of damages to be assessed; and

(c)     What is the quantum of damages due to the plaintiff.

Can the defendants challenge causation at the assessment stage?

21     To ascertain what has been agreed between parties, I first examine the scope of the Consent Judgment.

Contractual Interpretation

22     The principles of contractual interpretation apply equally to the interpretation of consent judgments (Seiko Epson Corp v Sepoms Technology Pte Ltd [2008] 1 SLR(R) 269 (“Seiko”) at [26]).

23     The relevant principles were succinctly summarised by the High Court in Foreland Singapore Pte Ltd and anor v IG Asia Pte Ltd [2024] SGHC 179 at [88]:

88    The principles of contractual interpretation are well established under Singapore law. As the Court of Appeal stated in the seminal case of CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Ltd) v Ong Puay Koon and others and another appeal [2018] 1 SLR 170 (“CIFG”) (at [19]):

(a)    The starting point is that one looks to the text that the parties have used (see Lucky Realty Co Pte Ltd v HSBC Trustee (Singapore) Ltd [2016] 1 SLR 1069 at [2]).

(b)    At the same time, it is permissible to have regard to the relevant context as long as the relevant contextual points are clear, obvious and known to both parties (see Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 at [125], [128] and [129]).

(c)    The reason the court has regard to the relevant context is that it places the court in “the best possible position to ascertain the parties’ objective intentions by interpreting the expressions used by [them] in their proper context” (see Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 at [72]).

(d)    In general, the meaning ascribed to the terms of the contract must be one which the expressions used by the parties can reasonably bear (see, eg, Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [31]).

24     The High Court in HSBC Institutional Trust Services (Singapore) Ltd (as trustee of AIMS AMP Capital Industrial REIT) v DNKH Logistics Pte Ltd [2022] SGHC 248 (“HSBC”) also stated at [26]:

26    The principles to be applied in the interpretation of contracts are well established by several salient decisions of the Court of Appeal …

I shall summarise the applicable principles from the above cases on the interpretation of clauses in a contract:

…

(e)    Should an interpretation of the clause based on its plain wording lead to an absurd result, this is a strong indication that the text may be inconsistent with the context in which it is interpreted. In this regard, the Court should ordinarily start from the position that the parties did not intend that the term(s) concerned would produce an absurd result. It must be stressed that the context cannot be utilised as an excuse for the Court to rewrite the terms of the contract according to its subjective view of what it thinks the result ought to be. The need to avoid an absurd result cannot be pursued at all costs. Rather, the Court must always base its decision on objective evidence. Therefore, if the objective evidence demonstrates that the parties had contemplated the absurd result or consequence, the Court is not free to disregard this in favour of what may seem to the Court to be a more commercially sensible interpretation of the contract. In such a situation, although one that would no doubt be extremely rare, the Court must give effect to the meaning contained therein, notwithstanding that an absurd result would ensue: YES F&B at [32] and [33]

25     Following the approach of the Court of Appeal in Seiko, the first question in the present case is whether the Consent Judgment was final on the issue of liability, or whether, on an objective interpretation of the Consent Judgment, the issue was left to be determined at the present assessment hearing.

26     The plaintiff’s only submission on this issue was that the defendants had entered into the Consent Judgment, and that “[b]y admitting liability on the matters stated therein, it is not open for the 1st and 2nd Defendants to deny or attempt to challenge their liability for the defects found and observed in each of the three reports of Chin Cheong. They are disputing the terms of the Interlocutory Judgment. It is not open for them to do so now.” [note: 10]

27     On the other hand, the defendants submitted that the burden of proof lies on the plaintiff to show that the defendants’ breach was the effective cause of the plaintiff’s loss. [note: 11] The defendants further submitted that the assessment stage is for “damages to be assessed as regards the scope and quantum of rectification works required at the Plaintiff’s Premises” and therefore “there must be care and consideration given as to whether the claims made by the Plaintiff… would be allowed having regard to the agreement by parties that the failure to comply fully with the demolition plan as submitted and as approved by the Building and Construction Authority was the main cause of the water seepage” (emphasis in underline in original).[note: 12]

28     I have some difficulties with the defendants’ submissions.

(a)     Crucially, the Consent Judgment does not contain any express reservation of causation to the assessment stage.

(b)     The Consent Judgment makes no reference to the alleged “agreement by parties” as to the main cause of water seepage, or how that leaves the issue of liability open.

(c)     Further, the order that damages are to be assessed “on the scope and quantum of rectification works required” is not inconsistent with the position that liability has been fully determined. This simply means the scope of damages for assessment has been finalised, and the issue at assessment is for the court to determine what would be the reasonable or appropriate rectification works for the said damages and the costs thereof. For example, there may be alternative methods or differing extents of rectification works in respect of a defect or damage.

29     In my view, an objective construction of the Consent Judgment indicates that it is final on the issue of liability, with the specific issue of the scope and costs of rectification works to be determined in assessment. There is nothing in the factual matrix surrounding the Consent Judgment to justify any inference that the plaintiff had agreed to reserve the issue of causation to the assessment stage.

30     As the Court of Appeal observed in Crapper Ian Anthony v Salmizan bin Abdullah [2024] SGCA 21 (“Salmizan (CA)”) at [48], it is for parties to agree on what has been resolved with res judicata effect and what has not. The Court of Appeal further stated in Salmizan (CA) at [50]:

… However, where parties have agreed to enter into a consent interlocutory judgment, what has been decided would be an interlocutory judgment on the matters that the parties had agreed to, regardless of whether the interlocutory judgment entirely established liability. There can be no confusion as to what the interlocutory judgment was entered in respect of; any doubt would be a consequence of the conduct of the parties’ counsel in drafting the consent interlocutory judgment and not because of the legal effect of the consent interlocutory judgment.

31     For these reasons, I find that the defendants are not entitled to challenge causation at the assessment stage in the present case.

Scope of damages to be assessed

32     What then is the scope of damages captured by the Consent Judgment for which the defendants are liable, and which are to be assessed?

33     In the course of the assessment hearing as well as in closing submissions, counsel spent a considerable amount of time to identify whether the reconstruction works at House 5 were the actual cause of the defects and damage found in House 7, arguing that the defendants are liable insofar as the reconstruction works had caused the defects and damage suffered by House 7. This is misconceived.

34     As stated above, one must look at the Consent Judgment to ascertain the scope of parties’ agreement. Having said that, the question of the proper interpretation of the Consent Judgment in the present case involved some intricacy.

35     Paragraph 1 of the Consent Interlocutory Judgment (“Para 1”) states:

1.     Judgment for the Plaintiff against the 1st and 2nd Defendants on matters set out in the 3 reports of Mr. Chin Cheong of Building Appraisal Pte Ltd dated December 2017, March 2019 and January 2020.

[emphasis added in bold and underline]

36     The plain and ordinary meaning of Para 1 suggests that all matters stated in the three BA Reports should be assessed, regardless of whether they relate to a defect in House 7 or not. That would be an absurd result and cannot be the case. Insofar as the BA Reports include descriptions and photographs of the “General view” [note: 13] at various locations in House 7, such observations and remarks clearly should not be included in the scope of items for assessment.

37     This is supported by the plaintiff’s own interpretation of Para 1 to mean that the plaintiff is entitled to damages to rectify all “defects found and observed in each of the three reports of Chin Cheong”.[note: 14] However, this interpretation is still vague and does not clearly identify the “defects” in each of the three BA Reports.

38     Applying the law on the interpretation of contracts which requires the assessment of both text and context, I am satisfied that the sensible way of interpreting Para 1 is to review what defects have been identified or described to be a defect observed by the plaintiff’s expert, Mr. Chin Cheong, in the three BA Reports.

39     Paragraph 5.1 of BA’s First Report contains a table setting out the defects identified at House 7, titled “Table of comparison of the reports”. The third and fourth columns set out the inspection findings and observations from the City Surveyors’ Report, the fifth and sixth columns set out the inspection findings and observations from the Chesterfield Report, and the seventh, eighth and ninth columns titled “BA’s view” set out Mr. Chin Cheong’s findings and observations from his site inspections of House 7.

40     Notably, Mr. Chin Cheong stated in paragraph 5.2 of BA’s First Report that he “classified the defects into ‘existing defect’, ‘deteriorated defect’ and ‘new defect’. In our view, the ‘deteriorated defect’ and ‘new defect’ were caused by the construction activities in No. 5 Siglap Avenue South” (emphasis added in bold).

41     Paragraph 4.2 of both BA’s Second and Third Reports also contain a table setting out Mr. Chin Cheong’s observations on the defects and damage identified at House 7 following his further site inspections. In both Reports, this table is set out under the heading “Schedule of Defects and Observations”.

42     Hence, reading Para 1 of the Consent Judgment together with the three BA Reports, the most sensible interpretation of the scope of the Consent Judgment in my view is that the defects for which damages are to be assessed include the following:

(a)     defects or damage listed in paragraph 5.1 of BA’s First Report which Mr. Chin Cheong has identified either as a “deteriorated defect” or a “new defect”;

(b)     all defects and observations listed in paragraph 4.2 of BA’s Second Report; and

(c)     all defects and observations listed in paragraph 4.2 of BA’s Third Report.

Quantum of damages due to the plaintiff

43     Finally, I turn to consider the issue of quantum of damages.

44     An issue I faced in the present case was that neither party clearly addressed the scope of the Consent Judgment or identified the full list of defects or damage for assessment in their submissions. This was further complicated by the manner parties had chosen to present their quantification of damages for assessment.

45     As mentioned at [13] and [17] above, both parties had presented their submissions on quantum of damages in accordance with the Richfield Quotation, rather than in relation to the defects or damage identified in the BA Reports. Furthermore, considerable time was spent cross-examining and re-examining witnesses (both factual and expert) on whether the reconstruction works were the cause for each defect or damage photographed in the three BA Reports. This meant that a large part of the evidence in this case was unfortunately not relevant and of minimal use for the purposes of assessing damages.

46     After sifting through over 2800 pages of parties’ documents and over 1,000 pages of transcripts of the assessment hearing, which took a considerable time to sort out, I set out in Annex 1 a full list of the defects and damages for assessment (82 items in total), together with parties’ respective submissions on quantum as well as the final damages assessed.

47     Broadly, my assessment of damages can be categorized into three groups.

(1)   Items which I allowed the plaintiff’s submission in entirety

48     First, items for which I allowed the plaintiff’s submission in entirety. For most of these items, the defendants’ only argument and submission was that they should not be allowed as no causation has been established. For the reasons aforementioned, I cannot accept this submission.

49     Further, the defendants either did not propose any alternative method or quantum of rectification or the alternative was in my view unworkable, whereas the plaintiff’s submission is reasonable and appropriate. Accordingly, I awarded the damages sought by the plaintiff.

(2)   Items which I allowed in part

50     Second would be items for which I allowed either the plaintiff’s submission in part, or allowed the defendants’ alternative submission. This include instances where the plaintiff’s proposed rectification work amounts to an improvement work, and I have applied an appropriate discount to take this into account. There are also defects where the defendants’ proposed rectification works are more consistent with the plaintiff’s expert’s recommendation as stated in the BA Reports and more appropriate as compared to the plaintiff’s proposal.

51     Further, there are some defects which are clearly evidenced by the documentary evidence, but parties did not make any submissions on what the rectification works should be or the costs thereof. In these instances, the court has awarded a nominal sum to the plaintiff.

(3)   Items which I did not allow

52     The final group would be items which I did not allow. These include:

(a)     proposed rectification works to defects and damage that were not to the plaintiff’s property (House 7) but rather, to the defendants’ property (House 5) instead. These claims cannot be allowed;

(b)     proposed rectification works which either overlap with or would be included as part of other proposed rectification works which have been allowed. There should be no double-counting; and

(c)     proposed rectification works which do not relate to or address the identified defects at all.

(4)   Summary

53     Based on the above, I assessed rectification costs at a total of $99,304.00. The full tabulation and breakdown as well as reasons for assessment are found in Annex 1.

54     The defendants relied on LBE Engineering Pte Ltd v Double S Construction Pte Ltd (“LBE Engineering”) [2022] SGHC 92 and argued in their closing submissions that the Court should order a 5% reduction to the quoted rectification sums allowed, since the plaintiff had only obtained quotations from a single contractor, i.e. Richfield, in the course of these proceedings.

55     Having reviewed and analysed the defects and damages identified in the BA Reports, the recommendations for repair and/or rectification works as stated in the BA Reports, as well as the corresponding proposed rectification works in Richfield’s Quotation, there is in my view nothing to suggest that the figures stated in the Richfield Quotation (having regard to the description of works Richfield had quoted for) are inflated or unreasonable. The present matter can also be distinguished from LBE Engineering since there is nothing in the present case to suggest that the figures in the Richfield Quotation have been inflated because of any relationship between the plaintiff and Richfield or any contractor hired to conduct the rectification works. In the circumstances, I do not think it is appropriate to apply any reduction in the present case.

Conclusion

56     In conclusion, the total rectification costs assessed and allowed is $99,304.00. The full breakdown can be found in Annex 1.

57     I will hear parties on the issue of interest and costs.

58     Finally, I wish to record my thanks to counsel for their patience and resilience in seeing through this assessment.

______________________

Annex 1:

The following table contains a breakdown of the damages which I awarded to the plaintiff.

[LawNet Admin Note: Please click on the link to the PDF above to view Annex 1.]

[note: 1]Plaintiff’s Bundle of Documents (“PBOD”) p1176 – 1284.

[note: 2]PBOD p1400 – 1436.

[note: 3]PBOD p1530 – 1580.

[note: 4]PBOD p2739.

[note: 5]Plaintiff’s Supplementary AEIC at [9]

[note: 6]PBOD p2739

[note: 7]Plaintiff’s Bundle of Pleadings (“BOP”) Volume 4 p1-2.

[note: 8]Plaintiff’s Closing Submissions (“C Subs”)

[note: 9]Plaintiff’s Closing Submissions dated 24 February 2023 (“C Subs”) at paragraph 5.

[note: 10]C Subs at p13.

[note: 11]Defendants’ Closing Submissions dated 24 February 2023 (“D subs”) at paragraph 13

[note: 12]D subs at paragraphs 9 and 13.

[note: 13]PBOD p1182

[note: 14]C Subs at page 13.

"},{"tags":["Criminal Law – Offences – Property – Cheating","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-09-23","court":"District Court","case-number":"District Arrest Case No 904122 of 2023 & 2 Others, District Arrest Case No 904123 of 2023 & 2 Others","title":"Public Prosecutor v Andy Oie Zheng Jie and another","citation":"[2024] SGDC 238","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32209-SSP.xml","counsel":["Kelly Ng (Attorney-General's Chambers) for the Public Prosecutor","Kalidass Murugaiyan/ Koh Boon Yang (Kalidass Law Corporation) for the first Accused","Josephus Tan/ Cory Wong Guo Yean (Invictus Law Corporation) for the second Accused."],"timestamp":"2024-09-28T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Andy Oie Zheng Jie and another

Public Prosecutor v Andy Oie Zheng Jie and another
[2024] SGDC 238

Case Number:District Arrest Case No 904122 of 2023 & 2 Others, District Arrest Case No 904123 of 2023 & 2 Others
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Kelly Ng (Attorney-General's Chambers) for the Public Prosecutor; Kalidass Murugaiyan/ Koh Boon Yang (Kalidass Law Corporation) for the first Accused; Josephus Tan/ Cory Wong Guo Yean (Invictus Law Corporation) for the second Accused.
Parties: Public Prosecutor — Andy Oie Zheng Jie — Sim Tze Wei, Nicholas

Criminal Law – Offences – Property – Cheating

Criminal Procedure and Sentencing – Sentencing – Principles

23 September 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       These two related cases involve two friends who had committed online cheating offences, or in current parlance, e-commerce scams. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and the prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused persons, Andy Oie Zheng Jie (“Mr Oie”), a 32-year-old Singaporean, and Sim Tze Wei, Nicholas (“Mr Sim”), a 26-year-old Singaporean, conspired with each other to sell counterfeit Apple AirPods to unsuspecting buyers. The two friends bought three batches of such AirPods from a seller on Alibaba and listed them as genuine items for sale on their Carousell accounts, one owned by Mr Oie and two owned by Mr Sim. Over the course of seven days, 14 victims fell prey to their deception and were dishonestly induced to deliver a total of $3,405 to Mr Oie and Mr Sim to purchase the counterfeit AirPods.

Charges

3       Mr Oie and Mr Sim have each pleaded guilty to a charge of abetting by conspiracy an offence of cheating under section 420 of the Penal Code 1871 (2020 Rev Ed) two such victims in a day in March 2023. They have also each consented to have a second similar charge taken into consideration for the purpose of sentence (“TIC”) for cheating four victims over two days in February 2023. For Mr Oie, he consented to a third TIC charge of abetting by aiding Mr Sim cheat eight victims over four days in March 2023; for Mr Sim, he also did so in respect of cheating these eight victims.

Prescribed punishment

4       For the cheating charge which they have pleaded guilty to, both Mr Oie and Mr Sim must be punished with imprisonment that may extend to ten years. This can also be coupled with a fine. They are subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the cheating charge is framed as an amalgamated charge for two separate transgressions amounting to a course of conduct under section 124(4) of the CPC.

Parties’ positions

5       The prosecution has sought to impose a sentence of four to six months’ imprisonment on both Mr Oie and Mr Sim based on:

(a)     deterrence in the face of the prevalence of scams;

(b)     the use of the Internet to perpetuate their scams;

(c)     the presence of planning and premeditation demonstrating a conscious decision by Mr Oie and Mr Sim to commit the crime;

(d)     the difficulty the victims faced in detecting the offences because of the particular mode of deception deployed by Mr Oie and Mr Sim;

(e)     the persistence in their offending and efforts made to evade detection until they were caught red-handed when they made a sale to an undercover police officer;

(f)     personal financial gain that motivated the commission of the offences;

(g)     the number of victims involved; and

(h)     the presence of similar TIC charges evidencing a pattern of criminal activity.

6       Mr Oie is not a first offender and has largely unrelated criminal antecedents. He had previously committed property-related offences but these were dated, where he offended as a juvenile almost two decades ago. Mr Sim is also not a first offender but his criminal antecedents are unrelated as well.

7       The defence has sought a term of six to eight weeks’ imprisonment for Mr Oie and one that is no more than eight to ten weeks for Mr Sim:

(a)     both counsel for Mr Oie and Mr Sim emphasised the full and voluntary restitution made by their respective clients and their early indications of guilty plea. In particular, counsel for Mr Sim has highlighted that Mr Sim was always prepared to make full restitution, including Mr Oie’s share in the event that Mr Oie is unable to do so;

(b)     counsel have also submitted that the sentence that the prosecution has sought is a marked departure from the three-month imprisonment sentence based on case precedents that involve more egregious facts and have also considered the factors that the prosecution has relied on to justify its deterrent sentence; and

(c)     counsel for Mr Oie has sought to differentiate the lower culpability level of his client from that of Mr Sim.

Court’s decision

8       After convicting both Mr Oie and Mr Sim on their respective cheating charges that they have pleaded guilty to before me on 13 September 2024, I reserved my judgement on sentence to afford time for Mr Oie to make full voluntary restitution. He has since done so. I now sentence both Mr Oie and Mr Sim to three months’ imprisonment and set out the reasons for my decision.

Issues to be decided

9       There are three main issues I have to decide in this case.

Operative sentencing principle; nature of offence and offender; application of case authorities

10     They are:

(a)     first, the main sentencing principle(s) operating in this case;

(b)     second, the nature of this particular offence and the specific nature of Mr Oie and Mr Sim as offenders; and

(c)     third, how to approach and take any guidance from relevant case authorities in discerning the appropriate sentence for this case.

11     I resolve the issues in this way:

(a)     deterrence and retribution are the operative sentencing principles in this case. There is a strong public interest in the prevailing context of e-commerce scams to deter the use of the internet as a medium to commit online cheating offences. But retributive considerations also demand that the punishment fits the crime and the criminal. In this case, retributive and deterrent concerns are aligned given the egregious circumstances of offending and the wholly blameworthy conduct of Mr Oie and Mr Sim in their criminal enterprise;

(b)     to the extent that full restitution will restore the pecuniary loss of the victims who had come forward and will mitigate the harm caused to them, the severity of the offence is reduced. However, the full extent of the harm is potentially farther reaching because a significant majority of the offending transactions were left unreported. There is also the intangible harm caused to Apple’s reputation. The particular mode of deception deployed by Mr Oie and Mr Sim using valid serial numbers that could be verified by Apple perpetuates the victims’ belief that they had bought genuine but defective products from Apple; and

(c)     sentencing remains a fact-sensitive exercise that encompasses a determination of criminality that has both quantitative and qualitative aspects. Insisting on linear quantitative proportionality between the sentence to be meted out in the present case and the economic value of the transactions, the number of proceeded with or TIC charges, or the number of other factors previous cases took into account and their resulting sentences, misses the woods for the trees. The overall qualitative criminalities of Mr Oie and Mr Sim justify the imposition of a three-month imprisonment term on each of them.

Analysis of issues

12     I analyse the issues in turn.

Issue 1: Deterrence and retribution as operative sentencing principles

13     Deterrence and retribution are the main sentencing principles operating in this case.

Deterring use of internet as medium to commit online cheating offences

14     There is a strong public interest to deter potential offenders from using the Internet as a medium to reach a larger number of potential victims: PP v Syamsul Hilal bin Ismail [2012] 1 SLR 973 (“Syamsul”) at [36]. Like-minded potential offenders should be deterred in using the internet to prey on a large pool of potential scam victims: Syamsul at [37]. In this case, the internet misuse is not peripheral because the ability to commit multiple cheating offences involving numerous victims over a short span of seven days was largely facilitated by the duo’s use of the internet to effectively publicise their scams through listing the counterfeit AirPods as genuine items for sale on their respective Carousell accounts: Syamsul at [41]. Would-be criminals should be deterred from using the Internet as a cheap, convenient and effective publicity platform to reach large numbers of potential victims in a targeted manner as Mr Oie and Mr Sim did in a popular online marketplace: Syamsul at [42].

Situating public interest in current context of e-commerce scams and mediums of perpetration

15     While I heed the caution sounded in Huang Ying-Chun v PP [2019] 3 SLR 606 at [111] about drawing conclusions about the prevalence of certain offences based on statistics and more importantly how any such prevalence correlates to the particular offence and offender at hand, it is difficult in the present case to think of the public interest in the abstract. In this regard, I find it helpful, by way of background, to situate the public interest in the context of the current realities of e-commerce scams borne out by relevant and reliable statistics. According to the publicly-available Singapore Police Force’s Annual Scams and Cybercrime Brief 2023, e-commerce scams make up one of the two top scam types reported in 2023, recording the second highest number of reported cases among all scam types for 2023, with Carousell being the second most popular medium used in e-commerce scams.[note: 1] Public interest in deterring the use of the internet, specifically popular mediums such as Carousel, to commit online cheating offences should properly be understood in this context.

Proportionality through retributive sentencing

16     Ultimately, deterrent considerations have to be tempered by proportionality in sentencing by retributive justice insisting on pegging punishment to the level of culpability and blameworthiness of the offender. A convenient proxy for this is an analysis of the relevant offence-specific harm-culpability factors, as well as offender-specific aggravating and mitigating factors that present themselves in this case.

17     For online cheating scams, sentences in the range of three to four months per charge were imposed in previous cases where the amount involved is about S$1,000 or less, even for first offenders who pleaded guilty: PP v Lim Shi Hui [2018] SGDC 108 (“Lim”) at [36]; see also PP v Tan Li Hui Matthew [2022] SGDC 29 at [31]-[33]. The starting point for an online cheating offence involving less than S$1,000 is three months’ imprisonment: Lim at [39(a)].

Issue 2(a): Nature of offence and harm caused

18     I preface the discussion on the harm caused by the offence with the nature of the scams that Mr Oie and Mr Sim had perpetrated in general.

E-commerce scams deceptively clothed with semblance of legitimacy

19     The scams that Mr Oie and Mr Sim had engaged in were atypical of the nature of the usual e-commerce scams that involve the sale of goods and services without physical meet-ups, where victims would come across attractive deals on online marketplaces or social media platforms but would fail to receive the goods and services after making payment.[note: 2] In the present case, the deception was more egregious because the scams masqueraded effectively as legitimate transactions with actual delivery of goods (with valid and verifiable product serial numbers) on payment by Mr Oie and Mr Sim who would meet up with the buyers as sellers. However, no refunds were effected when the buyers caught on that their valid product serial numbers were duplicated widely across the same products of other buyers.

Harm caused by offence

20     There are at least three facets to the harm caused in this case: first, the actual quantifiable harm caused to the immediate victims of crime who came forward because they had suffered detriment in the form of a total loss of $3,405; second, the intangible reputational harm to Apple’s reputation by using its valid and verifiable product serial numbers to tout counterfeit Apple products as genuine; and third, the harm that has not been crystalised because the value of the transactions that were actually reported by the victims who came forward only represent a fraction of the total sales made by Mr Oie and Mr Sim from peddling the counterfeit goods.

(1)   Actual harm caused to 14 victims mitigated by full restitution

21     The charge that Mr Oie and Mr Sim has each pleaded guilty to involves two victims parting with S$560. The TIC charges involve 12 other victims and their S$2,845. The value of the property cheated is a convenient starting point for sentencing, but in this case, the victims will eventually not suffer any detriment because full restitution has been made: PP v Lim Beng Kim, Lulu [2023] SGDC 9 (“Lulu Lim”) at [22] and [23]. The actual harm caused by the offences will be mitigated as such with respect to the 14 victims that have come forward. However, this cannot be over emphasised when the fuller extent of the harm caused is considered.

(2)   Intangible reputational harm caused to Apple

22     First, there is also the intangible reputational harm caused to Apple by virtue of the particular mode of deception deployed by Mr Oie and Mr Sim of using Apple’s own product serial numbers against itself and its customers. This perpetuates the victims’ belief that they bought genuine but defective Apple products. Indeed, in response to the victims who got in touch with them to say that the AirPods they bought were either not working or were not genuine products, Mr Oie and Mr Sim fell back on the refrain that their products checked out using valid and verifiable (or verified in some cases by the victims themselves or by them with the victims) serial numbers.

(3)   Full extent of harm farther reaching because majority of offending transactions not reported

23     Second, I am cognisant that the full extent of the harm caused is potentially farther reaching because there are more victims involved who had not reported their transactions. The value of the transactions involving the 14 victims represent only 35% of the total sale of S$9,780 in counterfeit AirPods, which means that the majority of the offending transactions have not been reported and the full extent of the harm has therefore not crystalised as such.

24     In any event, while the victim’s pecuniary loss and the offender’s pecuniary benefit is proportionate to the severity of the sentence, this relationship is not linear because there are other relevant sentencing considerations such as offender culpability and offender-specific factors that have to be evaluated and weighed: Lulu Lim at [29].

Issue 2(b): Nature of offence and offender culpability

25     While restitution may go some way in reducing the harm caused by the offence and therefore the severity of its nature, this does not reduce Mr Oie and Mr Sim’s culpability in the offence, and in turn the severity of the nature of their offending behaviour, in any way.

Both Mr Oie and Mr Sim equally culpable

26     Both Mr Oie and Mr Sim are equally culpable in the criminal enterprise. It is unnecessary to split hairs over their roles; the argument that one is more (or less) culpable than the other loses considerable force when these facts are properly considered together:

(a)     both of them paid for the three batches of counterfeit AirPods that they bought from the seller on Alibaba;

(b)     the ill-gotten gains from the enterprise were split equally between them;

(c)     both of them listed the counterfeit products for sale on their Carousell accounts;

(d)     they would meet each customer either together or on their own;

(e)     if they drove to meet the customers together, either one would drive Mr Oie’s vehicle with the other as passenger; Mr Oie’s vehicle would also be used if either one drove to meet the customers alone; and

(f)     they struck a common modus operandi between themselves, which was to relay to the customers that the AirPods they sold bore valid and verifiable serial numbers to lend legitimacy to the otherwise counterfeit products that were in fact peddled.

Circumstances of offending aggravating

27     The circumstances of offending were aggravating. Both Mr Oie and Mr Sim are wholly culpable in the sheer doggedness in which they had pursued the offence. As early as the first two to three sales from the first batch of AirPods they had bought, they had confirmed with the seller and knew they were selling counterfeit products because the AirPods had duplicate serial numbers. But this did not deter them from buying two more batches of counterfeit AirPods to sell. They were driven by sheer greed and personal gain (for extra income in Mr Oie’s case and to pay off credit card debts in Mr Sim’s case) to cheat and it is in this context that the particular egregiousness of this motive has been singled out.

28     Indeed, this motive continued to feed the persistence in their offending behaviour. This is perplexing. When the victims started to confront Mr Oie and Mr Sim on or around 10 March 2023 about their ruse, this distinctly afforded a point of repentance and an opportunity for the duo to show remorse. Instead, they doubled down in their Damoclean situation of being reported to the police. They made plans to evade detection by:

(a)     closing ranks and getting their stories straight, aligning themselves to the account that their products carried valid and verifiable serial numbers (but which they knew had been duplicated widely across other products);

(b)     discussing about withdrawing their ill-gotten gains from their bank accounts; and

(c)     discussing about going dark on their instant messaging accounts.

29     Emboldened by the belief that their pseudonyms, which they had used to transact with the victims over PayNow, afforded them anonymity and shielded them from being traced by the police, they decided to persist with their criminal enterprise. It is in this context that the seriousness of the cheating charge that Mr Oie and Mr Sim has pleaded guilty to ought to be appreciated. It involves the least number of victims and the smallest transaction value as compared to the other two charges, but it is the most egregious because it represents blatant and defiant recalcitrant conduct. Knowing that their victims were on to them did not stop Mr Oie and Mr Sim in their tracks. The duo nevertheless went on to cheat their last two victims on 16 March 2023 and only stopped, not by choice, when they were caught red-handed making a sale to undercover police on 17 March 2023 posing as buyers. This effectively limited any further harm caused but to be sure, credit cannot be given to Mr Oie and Mr Sim for this. Indeed, the potential for further harm was very real. Upon their arrest, 16 pairs of AirPods were found in their possession and another 25 were subsequently delivered. These could easily have been sold to more unsuspecting victims.

Manner of deception reprehensible

30     For the specific cheating charge at hand, the mode of deception that was deployed is also reprehensible. These two particulars victims were lulled with the assurance that the valid serial numbers of their AirPods could be verified officially. This they did and the numbers checked out, clothing the transactions with a veil of legitimacy, making it difficult to detect the actual deception involved. Unbeknownst to them, these numbers have been widely duplicated and applied to other products. Indeed, it took the other victims finding one another after leaving reviews on Mr Sim’s Carousell account to discover that the AirPods they bought had duplicate product serial numbers.

Issue 2(c): Offender-specific personal aggravating and mitigating factors

31     The defence has raised restitution and the early indication of guilty plea as personal mitigating factors, whereas the prosecution has raised the aggravating presence of the TIC charges and the amalgamated nature of the charges.

Voluntary restitution and guilty plea not persuasive indicators of genuine remorse and contrition

32     I accept that the full restitution made by Mr Oie and Mr Sim goes some way towards reducing the harm and therefore severity of the offence. I have already explained why this does not make the nature of their offending behaviour any less blameworthy. I am also less persuaded that the voluntary restitution, along with their early indications of guilty plea after the fact, stem from genuine remorse and contrition. Expressions of regret and remorse after the offender has been caught are easy to profess and difficult to prove: PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 at [26]. This is no more or less difficult than other findings of fact that a trial or sentencing judge has to grapple with: Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [74], and the contemporaneity of documents, evidence, behaviour and conduct at the material time in question has been used as a reliable fact-finding yardstick. In this case, contemporaneous displays of guilt, remorse and contrition at the time of the offence that would have been more persuasive are clearly absent. Multiple victims coming forward to confront Mr Oie and Mr Sim provided them the golden opportunity to repent. Not only did they fail to seize this opportunity because they were obviously confident in thinking that their game was not up, they actually went ahead to commit the present offence and cheated another two victims. They did not stop until they were caught. Their behaviour as such is incongruous to the present claim of remorse and contrition that they lay. An equally plausible explanation is that they are merely sorry that they got caught in the circumstances.

33     In any event, any mitigatory weight to be accorded to these personal factors must also be weighed against the personal aggravating factors that are present.

Amalgamated charge as signalling higher criminality and gravity of conduct

34     Although both Mr Oie and Mr Sim have each pleaded guilty to a single cheating charge, that charge has been amalgamated. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct as is the present case: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Presence of TIC charge aggravating

35     The TIC charges are likewise amalgamated, framing 12 separate transgressions as a course of conduct across two single charges. They also involve cheating under section 420 of the PC similar to the charge that is proceeded with against Mr Oie and Mr Sim. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37].

Issue 3: Application of case authorities

36     I consider the approach to applying case authorities to ascertain the appropriate sentence in this case.

Nature of sentencing as highly evaluative rather than mathematical exercise

37     Counsel for both Mr Oie and Mr Sim have commendably cited and sought to distinguish relevant case authorities that involved more egregious facts and considered the factors that the prosecution has relied on to justify its deterrent sentence. However, taking on too granular an exercise in this regard runs the real risk of missing the woods for the trees. Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: Lulu Lim at [29].

Insistence on linear quantitative proportionality with other cases unhelpful

38     It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Qualitative aspect of criminality

39     In this case, the overall qualitative criminalities of Mr Oie and Mr Sim are determined by:

(a)     the multiple offences involving numerous victims that were committed over a span of merely seven days facilitated by their use of Carousell as the online medium with which to reel in unsuspecting victims;

(b)     not only the actual harm caused to the 14 victims that will be mitigated by the full restitution made, but also the intangible reputational harm caused to Apple, and the potentially farther-reaching extent of the harm caused because the majority of the offending transactions were not reported;

(c)     clothing the e-commerce scams with a semblance of legitimacy by delivering in person actual (but counterfeit) goods with valid and verifiable (but duplicate) product serial numbers;

(d)     persistent offending behaviour in the face of their subjective knowledge of the counterfeit nature of the goods they were selling, as well as the blatantly recalcitrant, unremorseful and defiant criminal conduct when faced with the Damoclean situation of being reported to the police; and

(e)     the mode of deception specifically deployed on the two victims relating to the charge that Mr Oie and Mr Sim have each pleaded guilty to, by getting them to verify the product serial numbers that would check out to assure them that they were buying genuine products, when Mr Oie and Mr Sim knew the numbers were duplicated widely and applied to other products.

40     It is this factual and qualitative aspect of criminality (rather than a reduction to the quantitative factors that represent them), which justifies the imposition of a three-month imprisonment term for this scale, nature and culpability of offending. Counsel for Mr Oie has eloquently put forth the proposition that no one factor trumps all and the factors do not come together to support a higher sentence on the same set of facts. I hold a different view. The culpability of Mr Oie and Mr Sim is a decisive factor. The mode of deception that they have deployed through the use of valid and verifiable product serial numbers, coupled with their persistence in offending till they were caught red-handed, changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases.

Conclusion

41     There is strong public interest in the prevailing context of e-commerce scams to deter the use of the internet as a medium to commit online cheating offences. In this case, the 14 victims who have come forward will be restored by the full restitution made, but the harm caused is not confined to the pecuniary loss suffered by these victims. Apple would have suffered intangible reputational and goodwill loss as well. The full extent of the harm is also potentially farther reaching because the majority of the offending transactions were unreported.

42     The severity of the offence may be reduced because the harm caused will somewhat be mitigated, but it does not reduce the severity of the offending behaviour in any way because of its aggravated nature borne out by the culpability of both Mr Oie and Mr Sim. The personal aggravating factors are not outweighed by the less persuasive case for any substantial mitigatory weight to be accorded to voluntary restitution and the early indications of guilty plea as reliable proxies of genuine remorse.

Sentence of three months’ imprisonment imposed

43     Viewed in the round, their overall qualitative criminality justifies the imposition of a sentence of three months’ imprisonment on both Mr Oie and Mr Sim. I backdate their respective sentences to 17 March 2023 when they were first arrested to take into account any periods of remand and custody and to exclude their bail period from 24 March 2023 till date.

[note: 1]Singapore Police Force, “Annual Scams and Cybercrime Brief 2023” <https://www.police.gov.sg//-/media/Spf/Media-Room/Statistics/Annual-Scams-and-Cybercrime-Brief-2023/Annual-Scams-and-Cybercrime-Brief-2023.ashx> (18 February 2024) (“SPF Annual Scams and Cybercrime Brief 2023”) at paras 8 and 9(b).

[note: 2]SPF Annual Scams and Cybercrime Brief 2023 at paras 9(b)(ii).

"},{"tags":["Criminal Procedure and Sentencing – Ill-treatment of Child under Section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act Chapter 38, 2001 Rev Ed – Sentence"],"date":"2024-09-23","court":"District Court","case-number":"DAC 906879/2022 and another, Magistrate's Appeal 9155/2024/01","title":"Public Prosecutor v JDB","citation":"[2024] SGDC 248","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32203-SSP.xml","counsel":["DPP David Menon (Attorney-General's Chambers) for the Prosecution","Michelle Yap Ho (M Yap Law) for the Accused"],"timestamp":"2024-09-27T16:00:00Z[GMT]","coram":"Carol Ling","html":"Public Prosecutor v JDB

Public Prosecutor v JDB
[2024] SGDC 248

Case Number:DAC 906879/2022 and another, Magistrate's Appeal 9155/2024/01
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Carol Ling
Counsel Name(s): DPP David Menon (Attorney-General's Chambers) for the Prosecution; Michelle Yap Ho (M Yap Law) for the Accused
Parties: Public Prosecutor — JDB

Criminal Procedure and Sentencing – Ill-treatment of Child under Section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act Chapter 38, 2001 Rev Ed – Sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9155/2024/01.]

23 September 2024

District Judge Carol Ling:

Introduction

1       The Accused was a 32 year-old mother who pleaded guilty to a charge of ill-treating her son, then six years old.

2       The charge read:

You, are charged that you, on 11 May 2020, between 12.03pm and 12.14pm, at Block 350 Anchorvale Road #xxx Singapore, being the person who had the care of a child [victim], a male who was six years old at the time of the offence, did ill-treat the said child by wilfully doing an act which was likely to cause him unnecessary injury, to wit, by kicking him, slapping him, and hitting him with a belt more than 100 times, and you have thereby committed an offence under section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”).

3       One other charge under section 182 of the Penal Code, Chapter 224 2008 Rev Ed[note: 1] was taken into consideration for purposes of sentencing. The Accused had given false information to a police officer that her then-boyfriend was the one who had caused unnecessary injuries to the child.

4       Prior to sentence, a Newton Hearing was conducted to determine whether the Accused's Adjustment Disorder had a contributory link to the offence, given the divergent views contained in the medical reports of Dr Lee Yu Wei from the Institute of Mental Health (IMH)[note: 2] and Dr Jacob Rajesh from Winslow Clinic of Promises Healthcare Pte Ltd.[note: 3] At the conclusion of the Newton Hearing, it was a finding of this court that there was no contributory link between the Accused’s Adjustment Disorder and the offence.[note: 4]

5       I imposed an imprisonment term of 13 months on the Accused for the ill-treatment of her child. This is the Prosecution’s appeal against sentence.

Facts of the Case[note: 5]

6       Save for the last paragraph in the Statement of Facts (which formed the issue for the Newton Hearing), the Accused admitted to the facts presented by the Prosecution without qualification.

7       At the time of the offence, the victim lived with the Accused, the Accused’s then-boyfriend, and several of the victim’s siblings, half-siblings, and step-siblings. The Accused had custody of the victim.

8       On 11 May 2020, at around 12pm, the Accused was at her home at Block 350 Anchorvale Road, #xxx, Singapore. She was in her bedroom with several of her children, including the victim. The Accused was punishing the victim for misbehaviour and had told the victim to do a handstand. The victim was unable to stay in the handstand position. The Accused, who had been brandishing a rotan, picked up a belt.

9       Between 12.03-12.14pm on 11 May 2020, the Accused began to strike the victim. The Accused struck the victim with a belt, and kicked and slapped the victim. The victim cried in pain, but the Accused ignored his pleas for her to stop. At one point, the Accused paused, before resuming the beating. In total, the Accused hit the victim with a belt more than 100 times, using both the strap and the buckle. The Accused struck the victim all over his body, including his face. The beating was captured on closed-circuit television (CCTV) camera.

10     On 12 May 2020, the Accused brought the victim to Nanyang NPC, where she lodged a police report falsely alleging that the Accused’s then-boyfriend had administered a beating to the victim. The victim was observed to have numerous bruises on his body and scratches on his face. On 13 May 2020, the victim was examined by Dr Juliet Tan Sher Kit at KK Women’s and Children’s Hospital. Dr Tan noted that the victim had sustained more than 50 bruises and abrasions.[note: 6]

Parties’ Position on Sentence

11     The Prosecution urged the Court to impose a sentence of between 16 to 18 months’ imprisonment.[note: 7] The learned Deputy Public Prosecutor (DPP) submitted that deterrence and retribution were the dominant sentencing considerations, highlighting these factors:

(a)     The offence took place in a familial setting and there was an abuse of trust;[note: 8]

(b)     The injuries were severe;[note: 9]

(c)     The manner and duration of the ill-treatment- the Accused had administered a ferocious and sustained beating on the victim, and also struck the victim on his head (which was a vulnerable part of the body);[note: 10]

(d)     A weapon was used, in this case both a belt and its buckle;[note: 11]

(e)     The young age of the victim – he was only six years at the time of the offence;[note: 12]

(f)     The Accused had attempted to conceal the offence;[note: 13]

(g)     Little weight ought to be given to the Accused’s plea of guilt as an indication of remorse since the evidence against the Accused was overwhelming (captured on closed circuit television - (CCTV)).[note: 14]

12     Defence Counsel urged the Court to impose a sentence of eight to 10 months’ imprisonment, which was a sentence more in line with case precedents and the facts of the case.[note: 15] Contrasting the present case with Public Prosecutor v GEC [2021] SGDC 236 (“GEC”), a case involving an offender who pleaded guilty to seven charges under the CYPA, Defence Counsel submitted that the facts in GEC were more aggravating. In GEC, the offender had abused her two daughters over many occasions and even when she was under investigations and on bail for similar offences.[note: 16]

Sentencing Considerations

Deterrence and Retribution - the Dominant Sentencing Considerations

13     Deterrence and retribution were the dominant sentencing considerations in this case. It was aptly stated in the case of GEC at [40]:

“In determining the appropriate sentence, the dominant sentencing considerations were deterrence and retribution. Children are vulnerable victims and must be given the full protection of the law. In the present case, both victims were particularly vulnerable in view of their very young age; they could do nothing to protect themselves. The defendant, as a parent, was under a moral obligation to care for the children. Her acts of physical abuse against them were a betrayal of the trust that they had placed on her. Parents must not use violence against their children under any circumstances, and such acts of violence must be deterred. The sentence must also carry a retributive element in proportion to the physical and likely psychological harm caused to the child.”

14     The scenes of the incident captured on CCTV footage and played in a closed court, were heart-wrenching. It was hard to watch. The victim was a young boy, only six years old at the time of the offence. He was punished for misbehaving and was ordered to do a handstand. At some points, he was unable to maintain his handstand and faltered. In the course of that, the Accused kicked and slapped the victim, and used a belt to hit the victim more than 100 times. The victim was vulnerable, helpless to defend himself physically against his mother. All he could do was to cry out to and plead with the Accused to stop hitting him.[note: 17]

15     It is right that the sentence imposed in this case should sufficiently reflect the court's disapprobation for the actions of the Accused and to also send a strong message to all parents and guardians of children that excessive force and/or the use of violence, even if it is said to be in the name of discipline, could not be tolerated.

The Relevant Aggravating and Mitigating Factors

16     In arriving at the appropriate sentence, I took into account the aggravating factors raised by the Prosecution (listed at [11] above).[note: 18] The incident was committed in a familial setting and there was an abuse of a position of trust.[note: 19]A child looks up to his parent for security and protection but in this case, the victim received none of those. Instead, he suffered physical abuse at the hands of his mother. The injuries suffered by the victim were also severe as he was covered in bruises, abrasions and hematomas all over his body.[note: 20] The use of violence on the victim by the Accused’s kicking and slapping was made worse when she used a belt (both belt and buckle) to hit him more than 100 times, over an extended period of time. The victim was also struck on vulnerable parts such as his head and face.[note: 21] The Accused had also attempted to conceal her involvement in the offence by naming her boyfriend as the one who caused the injuries.[note: 22]

17     These aggravating factors aside, I was mindful that the Accused had pleaded guilty. Notwithstanding the fact that the offence was captured clearly on CCTV and there was no running away for the Accused, her guilty plea saved judicial and prosecutorial resources. By so doing, she also spared her son from testifying in court against his own mother.[note: 23] When considered along with the steps the Accused had taken after the incident – attending counselling at Viriya Community Services from 2021 to 2022 (16 sessions in total)[note: 24] as well as making the effort to re-connect with the victim under supervision after her bail conditions were varied,[note: 25] I was satisfied that the Accused was genuinely remorseful for what she had done.

18     The Accused may also be treated as a first offender. As fairly pointed out by the Prosecution, even though this was not her first brush with the law, her previous conviction was dated and she had been sentenced to probation;[note: 26]

19     The Accused's ill-treatment of the victim on this occasion was one-off. There was no history or pattern of abuse or any prior incidents where the Accused was violent towards the victim or any of her other children. Defence Counsel emphasized that prior to this incident, the Accused was not on the Child Protection Services watchlist, indicating that there were no prior concerns about her conduct as a mother.[note: 27] On the evidence, I was prepared to accept Defence Counsel’s submission that this episode was a result of the Accused’s excessive use of force in disciplining the victim on this occasion rather than a pattern of violent behaviour towards the victim or her other children. Thankfully, the injuries suffered by the victim, whilst severe, did not, result in any permanent injuries.[note: 28]

The Appropriate Sentence

Punishment Prescribed

20     The punishment prescribed for an offence under section 5(1) of the CYPA punishable under section 5(5) of the same, was a fine not exceeding $8,000 or to imprisonment for a term not exceeding 8 years or to both.[note: 29] The prescribed punishment envisages a wide spectrum of cases for which fines may even be appropriate. The case before me was not one such case; the width of sentence only emphasized the need to scrutinize the facts and circumstances of each case to determine the most appropriate sentence.

Public Prosecutor v GEC

21     The case precedents[note: 30] highlighted by the Prosecution assisted to give a flavour of the range of sentences which had been imposed in offences under the CYPA but were not particularly helpful.[note: 31] However, Prosecution relied on GEC as the foundation for their proposed sentencing range. Prosecution submitted that the aggravating facts in the present case justified a substantial uplift from the individual sentences imposed in GEC.[note: 32] As GEC was a case dealing with offences under section 5(1) CYPA charges, with one such offence having occurred after the increase in the maximum punishment prescribed, I found the case of GEC to be relevant in my consideration of the appropriate sentence.

22     The particulars of ill-treatment contained in each proceeded charge in GEC consisted of acts such as pulling of the hair, repeatedly slapping of the face, kicking and pinching the victim, pulling of the ears, dragging the victim by the hair, throwing the victim on the floor, kicking of the head and body, throwing a capped marker pen at the victim’s forehead et cetera[note: 33]. The offender in GEC received a sentence of eight to 10 months imprisonment on each of the seven proceeded charges (four other charges were taken into consideration). The imprisonment terms in four charges were ordered to run consecutively, with a global sentence of 36 months imprisonment.[note: 34] The individual sentences as well as the global sentence were upheld on appeal.

23     I agreed that an uplift from the sentence imposed in individual charges in GEC was necessary on the single charge proceeded on in this current case, given the nature and duration of the violence inflicted on the victim, amongst other factors. However, I did not think it should be of the length suggested by the Prosecution. The sentences imposed by the court in GEC on the individual charges would have factored in the aggravating aspects of the case[note: 35].

24     In my view, there were several highly aggravating facts in GEC:

a)     For one, the offender in GEC faced a total of 11 charges under section 5(1) of the CYPA. She pleaded guilty to seven charges and the remaining charges were taken into consideration for purposes of sentencing. Her offences were similarly captured on a CCTV;[note: 36]

b)     There were two vulnerable victims in GEC – both were daughters of the offender who were four and eight years old at the time of the first incidents in 2019;[note: 37]

c)     There was a history as well as pattern of abuse by the offender in GEC. Investigations revealed that beatings for the eight year-old began when she was in kindergarten (K1 or K2). The beatings worsened in 2018, when she was in Primary 1. The beatings included slapping her many times on her face, using a cane to hit her, kicking her and pulling her hair. These assaults would usually take place in the living room where the CCTV camera was installed. Sometimes, the offender would pull the daughter by her hair and drag her to the bedroom to continue the assaults away from the CCTV camera;[note: 38]

d)     The offender in GEC was recalcitrant. The abuse did not stop despite the intervention of the Child Protection Service on 22 August 2019 and the police investigations that began on 3 September 2019. She re-offended in 2021 while on bail and awaiting trial;[note: 39]

e)     There was no indication of remorse other than a guilty plea. As mentioned in GEC at [31], “she lacked remorse and sought to downplay her culpability while the matter was being investigated by the police”;

f)     The injuries suffered by one of the victims included a broken tooth.[note: 40]

25     The sentences of eight to 10 months imprisonment imposed on the individual charges in GEC would have taken into account these aggravating facts even though admittedly, the particulars contained in the individual charges in GEC were not as serious as the single charge proceeded on in this present case. The overall culpability and criminality of the offender in GEC, which I found to be higher than the Accused in the present case, would also have been reflected in the global sentence imposed in GEC. Whilst I fully agreed that the appropriate sentence in this present case should be one higher than the sentences imposed in individual charges in GEC, I did not think it warranted a sentence of the length sought for by the Prosecution.

26     A sentence higher than 10 months’ imprisonment would be appropriate, taking a reference point from the sentence imposed on the 9th charge in GEC (DAC 917824/2021). In this charge which offence occurred on 8 March 2021 (and thus invoked the application of the increased penalties under section 5(1) CYPA, following amendments to the Act), the offender had pulled the ear of her daughter (who had by then turned 10 years old), slapped her face, and used her finger to repeatedly hit her head and also hit her arm. The court in GEC imposed a sentence of 10 months’ imprisonment, noting that the offence was committed after the offender had been charged in court and was pending trial for the earlier offences. Two other offences were considered in sentencing.[note: 41]

27     I was of the view that a sentence of 13 months’ imprisonment would be appropriate, bearing in mind the gravity of the offence before me and the sentencing objectives in this case. This sentence was not inconsistent with case precedents even if at first glance, the sentence may seem inadequate when viewed against the sentences imposed on CYPA offences in Public Prosecutor v BDB [2018]1 SLR 127 (“BDB”) and Public Prosecutor v Firdaus bin Abdullah [2010] 3 SLR 225 (“Firdaus”) - cases highlighted by the Prosecution.

28     The cases of BDB and Firdaus may be differentiated. First, as pointed out by the Defence Counsel, there were aggravating factors in these cases. There was evidence of a pattern of abuse; in BDB, even after child protection services were involved. Sadly, the abuse in these cases also caused the death of the victims.[note: 42] Taking into account these aggravating circumstances, the sentences imposed in BDB and Firdaus were between 6 months to one year’s imprisonment.

Conclusion

29     The sentence of 13 months’ imprisonment adequately meets the sentencing considerations of deterrence and retribution whilst balancing the aggravating and mitigating factors in this present case. Taking into consideration the totality of the circumstances, 13 months’ imprisonment on a single charge under section 5(1) CYPA, was a fair sentence. It may not be described as manifestly inadequate.

30     What would truly be in the best interest of the victim from this point forward was for the Accused to serve out the sentence and thereafter to resume contact with the victim with safety protocols in place, and for them to work on re-building their relationship as mother and child. This was the heartfelt desire expressed by the Accused in her personal mitigation plea to the court.[note: 43]

31     The Accused is on bail, pending the Prosecution’s appeal.

[note: 1]MAC 903165/2022

[note: 2]Medical Reports dated 3 Jan 2022 and 9 May 2023

[note: 3]Medical Report dated 5 October 2022

[note: 4]Notes of Evidence, 30 May 2024, 23/6-10

[note: 5]Statement of Facts

[note: 6]Medical Report from KK Women and Children’s Hospital dated 12 June 2020

[note: 7]Prosecution’s Sentencing Position, [1]

[note: 8]Prosecution’s Sentencing Position, [7]

[note: 9]Prosecution’s Sentencing Position, [8]

[note: 10]Prosecution’s Sentencing Position, [9]

[note: 11]Prosecution’s Sentencing Position, [10]

[note: 12]Prosecution’s Sentencing Position, [11]

[note: 13]Prosecution’s Sentencing Position, [12]

[note: 14]Prosecution’s Sentencing Position, [13]

[note: 15]Defence’s Mitigation Plea

[note: 16]Defence’s Mitigation Plea, [23]-[24]

[note: 17]Prosecution’s Address on Sentence, [11]

[note: 18]Prosecution’s Address on Sentence, [6] – [11]

[note: 19]Prosecution’s Address on Sentence, [7]

[note: 20]Prosecution’s Address on Sentence, [8]

[note: 21]Prosecution’s Address on Sentence, [9]-[10]

[note: 22]MAC 903165/2022 – TIC charge

[note: 23]Prosecution’s Address on Sentence, [13]

[note: 24]Defence’s Mitigation Plea, [24]

[note: 25]Defence’s Mitigation Plea, [8]

[note: 26]Prosecution’s Address on Sentence, [14]

[note: 27]Defence’s Mitigation Plea, [22]

[note: 28]Prosecution’s Address on Sentence, [8]

[note: 29]Children and Young Persons Act, Cap 38, 2001 Rev Ed, as of 11 May 2020

[note: 30]Prosecution’s Address on Sentence, [23]-[29]

[note: 31]Prosecution’s Address on Sentence, [22]

[note: 32]Prosecution’s Address on Sentence, [19]; [30]-[33]

[note: 33]Public Prosecutor v GEC, [7]

[note: 34]Public Prosecutor v GEC, [50]

[note: 35]Public Prosecutor v GEC, [27];[44]

[note: 36]Public Prosecutor v GEC, [3]

[note: 37]Public Prosecutor v GEC, [2], [7]

[note: 38]Public Prosecutor v GEC, [13]

[note: 39]Public Prosecutor v GEC, [31]

[note: 40]Public Prosecutor v GEC, [18]

[note: 41]Public Prosecutor v GEC, 10th and 11th charges

[note: 42]Notes of Evidence, 2 August 2024, 6/1-15

[note: 43]Notes of Evidence, 2 August 2024, 8/16-9/9

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Public Prosecutor v Lim Kai Heng
[2024] SGDC 247

Case Number:District Arrest Case Nos. 916267 of 2022 & others
Decision Date:18 September 2024
Tribunal/Court:District Court
Coram: Jill Tan
Counsel Name(s): Colin Ng (Attorney-General's Chambers) for the Public Prosecutor; Raphael Louis (Ray Louis Law Corporation) for the accused.
Parties: Public Prosecutor — Lim Kai Heng

Criminal Procedure and Sentencing – Sentencing – Sentencing framework – Section 354(2) Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Sentencing framework – Sections 377BK(1) and 377BK(2) Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Section 337(a) Penal Code 1871

18 September 2024

District Judge Jill Tan:

Introduction

1       A key question that arose in this case was whether caning should be imposed on an offender who had outraged the modesty of a child although he did not touch her private parts, and whether caning should be imposed on him for possession of child abuse material on account of some of its content depicting cruelty and physical abuse. On the facts of this case, I answered these questions in the affirmative. These are the grounds of my decision, which incorporate and supercede the oral remarks I made in sentencing.

Facts

2       The accused faced five charges. He pleaded guilty to three, with two taken into consideration for the purpose of sentencing (“TIC”). The charges he pleaded guilty to, the facts that he admitted to, and the charges that were TIC are summarised below.

First proceeded charge: DAC 9162671/2022 (1st charge)

3       The first proceeded charge was under s 354(2) of the Penal Code 1871 (“PC”), for outraging the modesty of a person under the age of 14 (“aggravated outrage of modesty”).

4       On 17 October 2022, at about 5 pm, the accused was walking around a housing estate when he heard sounds of merriment. He followed the sounds and came to a corridor which housed the flat in which the victim (then aged eight) and her sister (then aged five) lived. The accused noticed them playing in the flat and became sexually aroused at that sight. The victim noticed the accused peeping into the flat, and walked towards the window, thinking he was a deliveryman. The accused walked away and towards the lift lobby, near the staircase landing. He then began to masturbate. The victim, who had by then left her flat to follow the accused down the corridor, noticed him rubbing and stroking his exposed penis. When he accused saw the victim, he used his free hand to hold on to her right hand, while continuing his masturbation with his other hand in the victim’s presence, until he ejaculated on the floor. At this time, the victim’s sister shouted for her, and she managed to break free from the accused’s grasp. She ran home, and the accused ran away. Her mother subsequently called the police, and the accused was arrested at his residence the next day.

Second proceeded charge: DAC 915354/2023 (4th charge)

5       On the day of his arrest, the accused’s residence was raided and it was discovered that he possessed various electronic devices containing adult pornography, child abuse material and photographs of young children clad in swimming costumes at public swimming pools. The electronic devices contained 306 video files and 313 images, all of which were examined by the Info-Communications Media Development Authority and classified as obscene. Of these, 11 video files and 125 still images depicted children engaging in a sexual pose or sexual activities and/or depicted the genital and/or breasts of female children, where the depiction was sexual and offensive. Of the 11 video files, the faces of at least four children in four video files were fully, largely or partially visible. Of the 125 images, 30 were sampled, in which there were 24 in which the faces of at least 37 children were fully, largely or partially visible. The accused knew that these were child abuse material and had downloaded these from the internet for his own viewing.

6       His possession of these materials gave rise to the second proceeded charge, which was under s 377BK(1) punishable under s 377BK(2) of the PC.

Third proceeded charge: DAC 915355/2023 (5th charge)

7       The third proceeded charge was under s 337(a) of the PC, for doing a rash act to endanger the personal safety of others, by throwing a plastic cup filled with water from a fifth-floor unit to the ground floor, thereby causing bodily pain to a passer-by as the cup struck him in the neck. This occurred in August 2022.

Charges taken into consideration for the purpose of sentencing

8       The two charges which the accused consented to be TIC were as follows:

(a)     An amalgamated charge under s 336(a) of the Penal Code (Cap 224, 2008 Rev Ed) read with s 124(4) and 124(8)(a)(ii) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), for throwing various glass objects from a unit on the nineteenth floor of a block of flats onto the ground floor, in the period between 5 June 2020 and 14 September 2020; and

(b)     A charge under s 30(1) of the Films Act 1981 (“Films Act”) for possession of 295 obscene films on 18 October 2022.

Matters Relating to Sentencing

Prescribed penalties

9       The punishments that the accused faced were as follows:

(a)     For the offence of aggravated outrage of modesty, he was liable to be punished with imprisonment of up to five years, or with fine, or with caning, or with any combination of such punishments.

(b)     For the possession of child abuse material, he was liable to be punished with imprisonment of up to five years and was also liable to a fine or to caning.

(c)     For the rash act endangering the personal safety of others, he was liable to be punished with imprisonment of up to one year, or with a fine of up to $5,000, or with both.

Accused’s background

10     The accused had no antecedents but was found by the Institute of Mental Health to have paedophilia, which was “ego-dystonic” for him, which meant that he experienced distress about his sexual preference. He was about to turn 23 years old as at the time of the offences in the proceeded charges.

Prosecution’s submissions on sentence

11     The prosecution sought the following sentences:

(a)     For the first proceeded charge: at least 12 months’ imprisonment and three strokes of the cane;

(b)     For the second proceeded charge: 21 to 25 months’ imprisonment and three strokes of the cane; and

(c)     For the third proceeded charge: a starting sentence of six to 10 weeks’ imprisonment and with an appropriate uplift left to the court.

12     The prosecution also submitted that the sentences for the first and second proceeded charges should run consecutively, such that the total punishment should be 33 to 36 months’ imprisonment and six strokes of the cane.

13     The prosecution’s main bases for this submission were the need for deterrence and retribution.

Mitigation and defence’s submissions on sentence

14     The defence sought the following sentences:

(a)     For the first proceeded charge: eight months’ imprisonment with no caning;

(b)     For the second proceeded charge: 10 months’ imprisonment with no caning; and

(c)     For the third proceeded charge: three weeks’ imprisonment.

15     The defence submitted that the imprisonment terms for the second and third proceeded charges should run consecutively, for a total of 10 months and three weeks’ imprisonment.

16     The main mitigating factors cited were that following the commission of the offence for aggravated outrage of modesty, the accused had sought treatment for his paedophilia. He had also co-operated with investigations, and was extremely ashamed and remorseful. His youth and clean record were also highlighted, as was the fact that the outcome of the present proceedings would have a detrimental effect on his future employment prospects.

Victim Impact Statements

17     The prosecution filed victim impact statements from the victim of the aggravated outrage of modesty, and from her mother. The victim stated that since the incident, she had difficulty sleeping and often had to cry herself to sleep. She had nightmares that the accused was doing the act to her again and she would wake up crying. Since the incident, she is also afraid of men who are strangers and no longer trusts men, except for her father and relatives. She is now ten years old.

18     The victim’s mother confirmed the victim’s nightmares and difficulty sleeping after the incident. She added that the victim needed to go for counselling after the incident and became quieter than she used to be. The victim also asked her mother “why God chose her to be [the] victim of such an offence.” She sought to explain to her daughter that “God had chosen her because she was brave enough to face through this”, and since she was able to identify the accused, she had indirectly prevented him from doing the same to other children.

Decision on Sentence

19     As the three proceeded charges are different and have different sentencing considerations, I will refer to the relevant case law separately below.

First proceeded charge – aggravated outrage of modesty

20     For the charge of aggravated outrage of modesty, it was not disputed that the sentencing framework in GBR v Public Prosecutor [2018] 3 SLR 1048 (“GBR”) applied. In that case, the High Court set out a two-step sentencing framework.

(a)     First, the court is to identify which band the offence falls in, having regard to offence-specific factors (GBR at [28] to [30]). These include:

(i)       the degree of sexual exploitation, including the part of the victim’s body the accused touched, how the accused touched the victim, and the duration of the outrage of modesty;

(ii)       the circumstances of the offence, including any premeditation, use of force or violence, abuse of a position of trust, use of deception, aggravating acts accompanying the outrage of modesty, and the exploitation of a vulnerable victim; and

(iii)       the harm caused to the victim, whether physical or psychological.

Where two or more of these aggravating factors present themselves, the case will almost invariably fall within Band 2 (GBR at [33]), and cases involving skin-to-skin touching of the victim’s private parts or sexual organs would fall within the higher end of this band, while cases that do not involve skin-to-skin contact with the private parts would fall in the lower end of this band. Once the relevant band has been identified, the court should then determine where in that range the offence falls, to derive an indicative starting point.

(b)     Second, the court then considers the offender-specific factors, that is, the aggravating and mitigating factors personal to the offender, to calibrate his appropriate sentence (GBR at [39]).

21     While parties agreed that this case fell within Band 2, the prosecution submitted that the case fell in the middle of the range, while the defence contended that it fell at the lowest end of the range.

22     For reference, I noted that Band 1 comprises cases which do not present any (or at most one) of the offence-specific aggravating factors. Thus, it would include cases that involve a fleeting touch or a touch over the victim’s clothes, and do not involve intrusion into the victim’s private parts (see GBR at [32]).

Analysis

(1)   Step 1: Offence-specific factors

23     In terms of the degree of sexual exploitation, although the accused did not touch the victim’s private parts, there was skin-to-skin contact and it was not fleeting.

24     As for the circumstances of the offence, there was no premeditation, abuse of position of trust or deception. However, the victim, at the tender age of eight, was undeniably vulnerable. The accused also gripped her hand tightly during the episode such that her ordeal ended only when she managed to break free from his grasp. There was thus a use of force for a period of time that could not be described as short, and this was an aggravating factor.

25     Concerning the harm caused to the victim, while there was no indication of physical harm, the psychological harm in terms of the lasting trauma that she now suffers cannot be understated. Counsel for the accused submitted that there was no clinical diagnosis of the victim’s condition. Nevertheless, based on her victim impact statement and that of her mother’s, this incident clearly scarred her. She had trouble sleeping, had nightmares and woke up crying, needed to undergo counselling, and is now afraid of male strangers. She even asked her mother why God chose her to be the victim of such an offence – surely a question a child should never have to encounter. It was fortuitous that the victim’s mother had the wisdom to frame the incident in a positive light and explain it to the child in terms of her role in helping to catch an offender, which perspective it can only be hoped the victim will come to understand in time.

26     Given the number of aggravating factors that existed, I agreed with the parties that this case fell within Band 2. Since a Band 1 case would be one in which at most one of the aggravating factors existed (as noted at [20(a)] above), this would mean that to fall on the lowest end of Band 2, this case would need to be a “borderline” Band 1 case. In my view, it was clearly not borderline, and I disagreed with the defence that this case fell at the bottom of Band 2. I agreed with the prosecution that this offence fell within the middle of Band 2. Since the sentencing range for Band 2 is one to three years’ imprisonment, I pegged the starting point sentence at no less than 18 months’ imprisonment. This was slightly below the mid-point of the range, since the accused did not touch the victim’s private parts.

(2)   Step 2: Offender-specific factors

27     The strongest offender-specific factor in the accused’s favour was his plea of guilt, as this saved the victim from having to testify in court. While I noted that the accused sought treatment for his paedophilia and I accepted that this was a demonstration of remorse for his actions as well as a willingness to overcome his condition, I also noted that he sought treatment only after this incident. Crucially for his victim, this was too little, too late. I therefore declined to put much weight on this factor. However, I granted him the full 30% sentencing discount for his guilty plea, which brought his sentence to just over 12½ months’ imprisonment.

(3)   Caning

28     Counsel submitted that no caning should be imposed on the accused because he did not intrude into the victim’s private parts. The High Court (in GBR at [31]) held that the starting point is caning where a victim’s private parts are intruded upon. However, this did not mean that if the offence did not involve touching a victim’s private parts, then there would be no caning, for the High Court held that caning “should also be imposed if the facts and circumstances of the case warrant this as an additional deterrent”.

29     I agreed with the prosecution that the sentence to be imposed on the accused had to reflect the public disapprobation of such acts against young children, and that the key sentencing considerations were general deterrence and retribution. It needed to be made clear to the accused and any like-minded persons that perpetrating such acts on a child simply cannot be tolerated. In this regard, while his offence was not premeditated, his impulsive sexual offending was egregious, because it showed his inability to control his urges. In the present case, he was drawn to the sounds of merriment, saw two little girls playing, and was sexually turned on. He then gave in to his tendencies, and when approached by a curious child, grabbed hold of her while he was masturbating. He thus moved from watching child pornography videos and looking at images, to acting on his paedophilic urges in person with a child.

30     My view was that this was an escalation in his offending conduct and showed that he did pose a threat to the safety of children whom he might encounter. In the circumstances, my view was that this case was an appropriate one to impose caning in addition to the imprisonment term, as a deterrent. However, since he was a first offender in this regard, my view was that two strokes, instead of the three sought by the prosecution, would be sufficient.

31     Relying on a news report of an offender who had made his daughter perform an indecent act on him and who had been charged under the Children and Young Persons Act 1993 (“CYPA”), counsel also submitted that if a separate charge had been imposed under the CYPA for the accused’s obscene act, then it might have been the case that caning would likely not be imposed for the aggravated outrage of modesty. On the basis that the two resultant imprisonment terms might then have been ordered to run consecutively, counsel sought a higher imprisonment term for the accused instead of caning. I declined to equate the accused’s case with that of other offenders who faced different charges, not least because the circumstances under which they came to be charged were not known. I therefore declined to speculate on what the result might have been if the accused had faced different charges, as my task was to sentence him for the charges that he faced, based on the facts before me.

32     On DAC 916267/2022, for the offence of aggravated outrage of modesty, I therefore sentenced the accused to 12 months’ imprisonment and two strokes of the cane.

Second proceeded charge – possession of child abuse material

33     For the charge for possession of child abuse material, it was not disputed that the applicable sentencing framework was that in Public Prosecutor v Randy Rosigit [2024] SGHC 171 (“Randy Rosigit”). In that case, the High Court adopted the two-stage, five-step sentencing framework from Logachev Vadislav v Public Prosecutor [2018] 4 SLR 609.

34     Broadly, the first stage required the court to consider the offence-specific factors while the second stage required the court consider the offender-specific factors. Under the first stage, Step 1 of the framework required the court to identify the level of harm based on the nature of the acts in the child abuse material, and also decide on the accused’s culpability relative to the offence. Steps 2 and 3 of the framework then required the court to identify an indicative sentencing range and appropriate starting point based on the harm and culpability factors. Under the second stage, Step 4 required the court to consider the offender-specific aggravating and mitigating factors in further adjusting the sentence as necessary, while Step 5 required the court to make any final adjustments based on the totality principle.

35     The types of harm in such cases were noted by the High Court to generally refer to the harm to the children involved in the child abuse material, and a wider “market-making harm”. The factors to be considered included (Randy Rosigit at [51]):

(a)     The type/nature of acts that were depicted in the child abuse material;

(b)     The number of different children depicted in each item of child abuse material;

(c)     The quantity of child abuse material possessed;

(d)     The age of the children in the child abuse material;

(e)     The type of media (whether video or images) and the length of the media; and

(f)     The degree of identifiability of the children.

36     The scale of harm then could be categorized into four levels, in increasing grades of seriousness (Randy Rosigit at [44]):

(a)     Level 1: the child is in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity.

(b)     Level 2: the child is engaged in, or apparently engaged in, a sexual pose (whether or not in the presence of another person) – this includes material that depicts an image of the genital region, buttocks or breasts where the depiction is sexual and in circumstances which a reasonable person would regard as offensive.

(c)     Level 3: the child is engaged in, or apparently engaging in, a sexual activity (whether or not in the presence of another person).

(d)     Level 4: the child is a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual).

37     As for the factors going towards culpability, these were (Randy Rosigit at [51]):

(a)     The degree of planning, preparation, premeditation and sophistication by the offender;

(b)     The offender’s attempts to conceal behaviour;

(c)     The offender’s participation in a network;

(d)     The duration and persistence of the offending behaviour; and

(e)     The offender’s motive.

38     The relevant sentencing matrix was as follows (Randy Rosigit at [54]):

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39     As for the offender-specific factors, the aggravating factors included TIC offences, while the mitigating factors included co-operation with the authorities, psychological factors with a causal link to the commission of the offence, and genuine remorse (Randy Rosigit at [57]).

Analysis

(1)   Step 1

40     In terms of the harm caused, I noted the following:

(a)     First, that the quantity of child abuse material possessed, at 125 still images and 11 videos, was not as high in comparison to other cases in which over a thousand videos were found (eg, PP v Chong Xuan Ming, unreported, as cited by the defence, and addressed further below at [51]). That said, this number was certainly not low or negligible.

(b)     Second, the type and nature of the acts shown in much of the material was minimally Level 3 harm. As pointed out by the prosecution, in nine out of the 11 videos, the children were engaged in penetrative sexual activities. Out of the sampling of 30 images, at least a third showed the children engaging in sexual activity. Of these, one involved a child with her hands tied behind her back, and one with her hands taped to her legs while an object was being inserted into her vagina. Most disturbingly, one of the videos involved the child screaming in pain during penile-vaginal penetration. I classified these latter two clips as demonstrating Level 4 harm in their cruelty and physical abuse.

(c)     Third, in terms of the number of different children depicted, the faces of least four different children could be seen in the videos, while there were at least 37 different children visible in 24 images.

(d)     Fourth, the type of media involved were stills and videos, with the shortest video being seven seconds, and the longest being one minute and 59 seconds.

(e)     Fifth, the age of the children involved in the materials went as low as four years old, with many involving children aged between six to nine, and generally under 16.

(f)     Sixth, the faces of no less than 31 children were clearly identifiable in the images and videos.

41     Bearing these in mind, I agreed with the prosecution that the harm caused crossed the threshold from moderate into severe, and disagreed with the defence that the harm caused was only moderate. That said, my view was that the case fell at the bottom end of the severe band, since there clearly are cases in which the child abuse material depicts worse acts of cruelty or abuse (which are addressed below at [51]).

42     In terms of the accused’s culpability, since he simply possessed these images and videos for his own viewing and masturbated to them, I agreed with both parties that his culpability would be considered low.

(2)   Steps 2 and 3

43     Since my view was that the harm in this case was severe and culpability was low, this meant that based on the sentencing matrix, the sentencing range was 24 to 36 months’ imprisonment with the option of caning.

44     On balance, since I put the harm at the bottom end of the severe band, my view was that the starting point for the accused’s sentence would be at the bottom end of this range, that is, 24 months’ imprisonment, with the option of caning.

(3)   Step 4

45     As for the offender-specific factors, once again, the strongest mitigating factor was the accused’s guilty plea. However, I declined to grant him the full measure of the sentencing discount due to the TIC charge under the Films Act. That said, I disagreed with the prosecution that this TIC charge and the accused’s paedophilia justified an uplift of six months’ imprisonment, as this figure did not seem have a principled basis.

46     Therefore, from the starting point of 24 months, a slightly reduced sentencing discount (of about 25%) would bring the accused’s sentence to 18 months’ imprisonment.

(A)   Delay

47     Counsel also submitted that the accused should be granted a further sentencing discount because his guilty plea had initially been fixed for December 2023 but was delayed until August 2024. The postponement was because the prosecution was awaiting the High Court’s decision in Randy Rosigit.

48     The matter of whether a sentencing discount may be granted on account of a delay was recently addressed by the High Court in Wong Poon Kay v Public Prosecutor [2024] SGHC 91 (“Wong Poon Kay”), and the applicable principles were restated therein at [66] to [69]. In short, a discount in sentencing is granted only where there is an inordinate delay, that is, a delay that is unusually long and not explicable by reasonable grounds. In this regard, the delay is not measured in terms of the absolute length of time that has passed, but must be assessed in the context of the case. The delay must also cause the accused to suffer unfair prejudice as a result.

49     In the present case, the delay was to await relevant guidance on sentencing from the High Court, which was held in Wong Poon Kay (at [82] to [84]) to be a valid ground for a delay. In any event, my view was that eight months in the present context was not long, even in absolute terms. Given that the accused was on bail during that time in any event, I was unable to see how such a delay caused him to suffer unfair prejudice. I therefore disagreed that there was an inordinate delay in this case that would justify further reducing the accused’s sentence.

(B)   Caning and unreported precedents

50     Counsel also referred the court to some recent cases which he submitted had factual scenarios which “were worse” than the accused’s and for which there were more videos containing the child abuse material, but for which no caning was imposed. The prosecution also did not appeal against those decisions. Counsel thus submitted that for fairness and consistency, caning should not be imposed on his client. I directed the prosecution to file copies of the charges and statements of facts in those cases, and I reviewed the facts and the sentences imposed. Unfortunately, none of them involved a reported decision. These cases were PP v Chong Xuan Ming (as mentioned above) PP v Liew Yih Fui (unreported) and PP v Wang Dian (unreported). It was therefore unclear what factors were considered by the district judges in arriving at their decisions, and what aspects of the cases weighed on their minds.

51     Suffice to say that in the worst of the cases in terms of the quantity and nature of child abuse material, PP v Chong Xuan Ming, which involved 807 images and 3,149 videos, and in which some videos contained what I considered to be Level 4 harm (involving the use of a needle to poke the child’s nipple and a knife to cut her nipple), it was my view that the sentence of 18 months’ imprisonment without caning was lenient. In comparison, I noted that PP v Liew Yih Fui, which involved 752 videos containing what I regarded as mostly Level 3 harm and one involving Level 4 harm (as it concerned bestiality), the offender was sentenced to 21 months’ imprisonment without caning. Given the variations in the sentences and the absence of reasoned decisions, I did not consider myself constrained to necessarily impose a lighter sentence than in these precedents.

52     Returning to the matter of whether caning should be imposed on the accused for this offence in addition to his imprisonment term, as noted above, my view was the sentence had to signal public disapprobation of sexual offences against young children. As noted by the High Court in Randy Rosigit (at [47]), the consumption of child abuse material is pernicious, and a firm stance must be taken against it, because if not for the consumers of such material, there would be no market for those who abuse children by creating this material.

53     Given the number of videos and images found, the accused’s interest in child abuse material was also clearly more than merely fleeting. Thus, I agreed with the prosecution that general deterrence had to be factored into his sentence, and that caning would be appropriate, bearing in mind that I found that the harm caused to the children in the materials was severe. Nevertheless, given the accused’s low culpability and my finding that the harm was in the lower end of the severe band, my view was that two strokes of the cane would be sufficient.

54     On DAC 915354/2023, for possession of the child abuse material, I therefore sentenced the accused to 18 months’ imprisonment and two strokes of the cane.

Third proceeded charge – rash act endangering the personal safety of others

55     The third proceeded charge was for causing hurt by a rash act that endangered the personal safety of others. As noted above, the accused threw a plastic cup filled with water out of a fifth-floor window, such that it hit a passer-by on his neck, causing him to suffer pain.

56     For this, the prosecution sought an imprisonment term of six to ten weeks, relying on Public Prosecutor v Lim Choon Teck [2015] 5 SLR 1395 (“Lim Choon Teck”). The defence argued that a three-week term would suffice.

Analysis

57     Counsel submitted that the prosecution’s reliance on Lim Choon Teck was misplaced, because the reference to a sentencing range of six to 10 weeks’ imprisonment for “killer litter” offences therein (at [11]) was merely the High Court stating what the district judge had noted in her grounds of decision. I agreed with counsel on this point, as it was not a clear case of the High Court affirming the sentencing range. I also agreed with counsel’s observation that the offences under s 336 and s 337 of the PC consist not only of the rash and negligent limbs, but also of acts that are done to endanger human life, or the personal safety of others. In this regard, as noted by the High Court in Lim Choon Teck at [29], the “personal safety” limb is ordinarily regarded as of lower culpability than the “endangering life” limb. I bore this gradation in mind when determining where to peg the starting point sentence.

58     There being few reported cases relied on by parties to guide the court in sentencing for this offence, I noted from the Sentencing Information and Research Repository that the average sentence for such offences was six to eight weeks’ imprisonment, while the median was four to six weeks’ imprisonment. Counsel cited Public Prosecutor v Tan Kwan Sin [2010] SGDC 196, in which a term of three weeks’ imprisonment was imposed after a reduction upon appeal. While this case was slightly dated, I accepted that the object thrown in that case, a piece of wood from a broken chair, arguably had greater potential to cause harm than the plastic cup filled with water in the present case. I did not regard the other precedents cited by counsel as of much assistance, they concerned a different offence (that under s 336(a) of the PC), with a much lower punishment.

59     All things considered, I pitched the starting point sentence for this case at no less than three weeks’ imprisonment. This was at the lower end of the known sentencing ranges, in part because the offence was framed as a rash act that endangered the personal safety of others, rather than one that endangered life. Bearing in mind that the accused had a TIC charge which also involved throwing items out the window, my view was that a slight uplift was necessary, and a sentence of four weeks’ imprisonment overall was appropriate. The accused was therefore so sentenced on DAC 915355/2023.

Consecutive sentences

60     Finally, on the matter of which imprisonment terms to run consecutively, my view was that it should be the terms for the two more serious offences. This was because they happened on different occasions and concerned different legally-protected interests, even if the victims were all children. I thus agreed with the prosecution on this point and disagreed with the defence.

61     I then considered whether I needed to further adjust the sentence for the offence of possession of child abuse material under step 5 of the Randy Rosigit framework to ensure that the accused’s total sentence was not crushing in totality.

62     Running the sentences for the aggravated outrage of modesty charge and the possession of child abuse material charge consecutively meant a total of 30 months’ imprisonment and four strokes of the cane. The maximum punishment for each of these offences was five years’ imprisonment and 12 strokes of the cane. Bearing in mind that it is not unusual to see sentences in terms of years rather than months for offences of aggravated outrage of modesty, my view was that this aggregate sentence could not be said to be substantially above the normal level of sentences for the most serious of the individual offences committed. While the sentence would certainly adversely affect the accused’s future prospects, my view was that this was a necessary result of his punishment for his acts, and could not be said to be crushing. I therefore did not make any further adjustment to the sentence for the charge for possession of child abuse material.

Conclusion

63     The accused’s total sentence was therefore 30 months’ imprisonment and four strokes of the cane. His imprisonment term was backdated to 18 October 2022, the day he was arrested, and it was ordered to exclude the period he was on bail (3 November 2022 to 22 August 2024).

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Public Prosecutor v Muhamad Farhan Bin Umar
[2024] SGMC 67

Case Number:Magistrate Arrest Case No 902510 of 2024 and 1 Other
Decision Date:19 September 2024
Tribunal/Court:Magistrate's Court
Coram: Lee Lit Cheng
Counsel Name(s): Lim Yi Neng, Ryan (Attorney-General's Chambers) for the Public Prosecutor; The Accused unrepresented.
Parties: Public Prosecutor — Muhamad Farhan Bin Umar

Criminal Procedure and Sentencing – Sentencing – Relinquishing own Singpass credentials – Section 8 Computer Misuse Act 1993

Criminal Procedure and Sentencing – Sentencing – Sentencing Advisory Panel Guidelines for Scams-Related Offences

19 September 2024

District Judge Lee Lit Cheng:

Background

1       The alarming prevalence of scam cases have become a major and fast-growing concern. Over the past five years, the number of reported scam cases have increased by more than seven-fold, and amounts lost to scams have quadrupled. The total amount of monies lost by scam victims in 2023 alone was $651.8 million.[note: 1]

2       Victims who fall prey to scams are often unable to recover their monies as the funds can be swiftly transferred via the Internet out of jurisdiction and beyond the reach of the local authorities. The money is often dissipated by the time a police report is lodged and action is taken to freeze the bank accounts which first received deposits from the victims.

3       Once the bank accounts are frozen by the authorities, scammers will need new bank accounts to receive funds from other victims. In other words, scammers use bank accounts like disposables, and they need to have a steady stream of new bank accounts to replace the discarded ones.

4       To evade detection and maintain anonymity, scammers acquire bank accounts by offering to “buy” or “rent” them from others in return for payment or other gains. Scammers also offer to “buy” or “rent” Singpass credentials which they can then use to open bank accounts to receive scam proceeds. Therefore, persons who cede control of their bank accounts or disclose their Singpass credentials to others play an important role in facilitating the receipt and laundering of crime proceeds by scammers.

5       To combat the growing menace posed by scams, Parliament introduced new offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and Computer Misuse Act 1993 (“CMA”) in 2023. The new CDSA and CMA offences which came into force on 8 February 2024 target a critical component of the operation of scam syndicates – persons in Singapore who hand over control of their bank accounts or who disclose Singpass credentials to others.[note: 2]

6       In August 2024, the Sentencing Advisory Panel of Singapore (“the Panel”) also issued Guidelines for Scams-Related Offences (“the Guidelines”) to provide guidance and clarity on how the new CDSA and CMA offences should be sentenced. The Panel comprises members from the Judiciary, the Ministry of Law, the Singapore Police Force, the Attorney-General’s Chambers, and the Bar. The Panel formulates and publishes guidelines on matters relating to sentencing, with the objective of promoting greater consistency, transparency and public awareness in sentencing. While guidelines issued by the Panel are not legally binding on any court, they are helpful in providing guidance to the courts in passing sentences. If a decision is made not to apply a relevant guideline, the court should provide reasons for that.

7       In relation to the unauthorised disclosure of one’s Singpass credentials, an offender may be prosecuted for the new offence under s 8A of the CMA or for the pre-existing offence under s 8 of the CMA. Both offences carry the same prescribed punishment for the first conviction, namely, a fine not exceeding $10,000 or imprisonment not exceeding three years or both.

The Charges

8       In the present case, the 36-year-old Accused pleaded guilty to a charge under s 8 of the CMA for disclosing his own Singpass credentials knowingly and without authority. Another charge under s 177(1)(a) of the Penal Code 1871 for falsely informing the police that he did not furnish his Singpass credentials to anyone else was taken into consideration for the purpose of sentencing (“the TIC charge”).

Brief Facts

9       In early 2023, the Accused received an advertisement via Telegram offering to pay him $500 for relinquishing his Singpass credentials. The Accused responded by providing the unknown sender his Singpass User ID, password, and one-time password. The unknown person deleted the chat between them, and the Accused did not receive any payment.

10     On 21 February 2023, the Accused’s Singpass account was used to set up a company and a bank account was opened for the company (“the Bank Account”). Between 25 February 2023 to 1 March 2023, a total sum of $132,577.57 was deposited into the Bank Account, and a total sum of $132,543.32 was withdrawn from it. The funds that flowed through the Bank Account included a sum of $30,000 deposited by a victim of scam who had lodged a police report.

11     When the Accused was called up for investigations on 3 May 2023, he falsely told the police that he had not shared his Singpass login details with anyone.

The Prosecution’s Submissions on Sentence

12     The Prosecution submitted that general deterrence was the dominant sentencing consideration given that the offences were committed in the context of a rising tide of scam cases. The offence committed by the Accused facilitated the control of scam proceeds by allowing scammers to swiftly dissipate their unlawful gains by transacting the gains through multiple bank accounts and placing them beyond the reach of the authorities. Individuals must therefore be prevented and deterred from acting as money mules by selling their bank accounts or Singpass login details to others.[note: 3]

13     The Prosecution submitted that the sentencing approach for s 8A CMA offences in the Guidelines should also apply to the charge under s 8 of the CMA in this case, given that both involve the same conduct and mischief. The prescribed punishment for both offences is also the same for the first conviction.

14     Applying the Guidelines, the Prosecution sought a sentence of at least seven to 8.5 months’ imprisonment.

Mitigation

15     The Accused sought leniency on the basis that he was the sole breadwinner and had committed the offence because he was facing financial difficulties and was desperate to earn money to provide for his family with young children. He said that he would not have accepted the offer if he had known that it was a scam. He also did not receive any benefit.

Decision on Sentence

16     In determining the appropriate sentence to be imposed for the present charge under s 8 of the CMA, I first considered whether the Guidelines relating to s 8A of the CMA were relevant.

Guidelines for s 8A CMA relevant to s 8 CMA

17     I agreed with the Prosecution that the Guidelines relating to s 8A of the CMA were relevant to the present charge under s 8 of the CMA.

18     The guidance pertaining to s 8A of the CMA are set out in the Guidelines at [23] to [33]. They relate to cases where the criminal act involved is the disclosure by an offender of his own Singpass credentials without taking reasonable steps to ascertain the identity of the recipient and purpose in which the Singpass credentials will be used (Guidelines at [25]).

19     Given that the criminal act involved, the mischief targeted and the prescribed punishment for the present offence under s 8 of the CMA are the same as the s 8A CMA cases covered by the Guidelines, I found that the Guidelines were also relevant and applicable in the present case.

Application of the Guidelines to s 8 CMA

Custodial sentences ought to be the norm

20     The Guidelines (at [7]) recommend that custodial sentences ought to be the norm for scams-related offences and the sentences must be punitive enough and commensurate with the harm suffered by scam victims.

21     Given the prevalence of scam cases, general deterrence was undoubtedly the key sentencing consideration, and a custodial sentence was clearly warranted in this case.

(1)   Starting sentence

22     The Guidelines (at [25]-[26]) recommend a starting sentence of six months’ imprisonment for a first-time offender convicted after trial of an offence under s 8A of the CMA in an archetypal case involving the following:

(a)     an offender who discloses his Singpass credentials without taking reasonable steps to ascertain the identity of the recipient and purpose in which the Singpass credentials will be used;

(b)     the disclosed Singpass credentials have not been used, eg, to open bank accounts; and

(c)     the offender did not have any intention to derive a gain from his act.

23     Taking guidance from the Guidelines, I was of the view that the same starting sentence of six months’ imprisonment was appropriate, if the Accused had claimed trial. Although the Accused was not a first offender, his antecedents relate to offences which were dissimilar to the present offence under s 8 of the CMA. I therefore did not find it necessary to go beyond the recommended starting sentence.

(2)   Apply uplifts for offence-specific aggravating factors

24     Next, the Guidelines provide that upward adjustments to the starting sentence should be made for the offence-specific aggravating factors in a case, including the following factors set out in [28]-[29] of the Guidelines:

(a)     Where the offender was motivated to commit the offence for personal gain, even if he did not receive the gain.

(b)     Where the offender disclosed his Singpass credentials knowing that it would be used to commit an offence (“predicate offence”), it would be more aggravating than only having reasonable grounds to believe that it would be so used.

(c)     If the predicate offence is committed, an uplift should be imposed.

(d)     If the disclosure of the Singpass credentials has led to the opening of bank accounts, the incorporation of companies, or the making of any claim for Government incentives and benefits. The extent of the uplift will depend on, among others, the number of bank accounts and/or companies created, the amount of Government incentives and benefits claimed for or disbursed.

(e)     If there is evidence that the bank accounts were created for money laundering purposes. The extent of the uplift should be commensurate with the amount of funds that had been received or flowed through these accounts. Where significant funds ($100,000 or more) had been received or transferred out of these accounts, an uplift of at least 25% of the starting sentence should be considered. This is so even if the offender does not know of the extent of funds that have flowed through these accounts.

(f)     Where actual harm or loss occurs as a result of the disclosure of the Singpass credentials.

(g)     Where the disclosure of the Singpass credentials has led to the creation of bank accounts for money laundering purposes, and the funds flowing through the bank accounts are linked to a victim of a scam who is a vulnerable person, namely, a person 65 years of age or older, or a person who, by reason of mental or physical infirmity, disability or incapacity, is substantially unable to protect himself from abuse, neglect or self-neglect. The extent of the recommended uplift is as follows:

(i)       If the offender knew that vulnerable persons were specifically targeted by the scams, an uplift of at least 50% of the starting sentence should be made.

(ii)       If vulnerable persons were affected by the scams (even if vulnerable persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected), an uplift of at least 25% of the starting sentence should be made.

25     Further, in the illustration at [32]-[33] of the Guidelines (“the Illustration”), an uplift of three months’ imprisonment was made for the fact that (1) the offender was motivated by gain to commit the offence; and (2) a bank account was opened as a result of the offender’s disclosure of his Singpass credentials. This works out to an average uplift of 1.5 months’ imprisonment (being 25% of the starting sentence of six months) for each factor.

26     In the present case, the Accused was motivated by gain to commit the offence. A company was also incorporated using the Accused’s Singpass credentials followed by the opening of a bank account for the company. Taking guidance from the extent of the uplift made in the Illustration, I found that a similar uplift of three months’ imprisonment was appropriate for these two factors.

27     Significant funds amounting to over $130,000 flowed through the Bank Account which was created for and used to launder scam proceeds. An uplift of 1.5 months’ imprisonment (being 25% of the starting sentence of six months’ imprisonment) was appropriate.

28     After adding the uplifts, the custodial sentence if the Accused had been convicted after trial would be 10.5 months’ imprisonment.

(3)   Consider offender-specific sentencing factors

29     In the final step, I considered the Accused’s plea of guilt and the TIC charge.

30     For his early plea of guilt, I applied the maximum 30% reduction in sentence as recommended for a Stage 1 plea of guilt in the Guidelines on Reduction in Sentences for Guilty Pleas published by the Panel. That brought the sentence down to 7.35 months’ imprisonment.

31     Taking into account the TIC charge, I sentenced the Accused to imprisonment for a term of seven months and two weeks,

Disgorgement fine, if applicable

32     The Guidelines (at [31]) also recommend that, in addition to a custodial sentence, an appropriate fine to disgorge the financial gains received by an offender from his offence ought to be imposed.

33     As the Accused did not receive any payment for relinquishing his Singpass credentials, no fine was ordered in this case.

Conclusion

34     Many have fallen prey to scams and suffered huge financial losses. It is particularly dire for the elderly who may have lost their life savings and are unable to recover the monies.

35     There is a compelling need to cut the supply of bank accounts to scammers by taking firm action against those who hand over control of their bank accounts or disclose their Singpass credentials to others and, in so doing, have facilitated the receipt and laundering of crime proceeds by scammers. The clear message to anyone who may be tempted by the promise of easy cash is that the punishment will be severe and it does not pay to engage in such criminal conduct.

36     All things considered, I was of the view that the sentence of seven months and two weeks’ imprisonment was appropriate and needful in the present case.

[note: 1]Press release dated 21 August 2024: Publication of Guidelines for Scams-Related Offences (“Press Release”)

[note: 2]Press Release

[note: 3]Prosecution’s Skeletal Submissions on Sentence, [3]

"},{"tags":["Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Consumption of specified drug","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of controlled drug","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of drug utensils","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Trafficking of controlled drug"],"date":"2024-09-19","court":"District Court","case-number":"District Arrest Case No 912429 of 2023 & 6 Others","title":"Public Prosecutor v Ryan Hafiz Syah bin Razali","citation":"[2024] SGDC 245","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32177-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor","Lee Chuan/ Vadi PVSS (Public Defender's Office) for the Accused."],"timestamp":"2024-09-25T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ryan Hafiz Syah bin Razali

Public Prosecutor v Ryan Hafiz Syah bin Razali
[2024] SGDC 245

Case Number:District Arrest Case No 912429 of 2023 & 6 Others
Decision Date:19 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor; Lee Chuan/ Vadi PVSS (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Ryan Hafiz Syah Bin Razali

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Consumption of specified drug

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of controlled drug

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of drug utensils

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Trafficking of controlled drug

19 September 2024

District Judge Paul Quan:

Introduction

1       By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; and

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Ryan Hafiz Syah Bin Razali (“Mr Ryan”), a 31-year-old Singaporean, was caught selling methamphetamine to an undercover Central Narcotics Bureau (“CNB”) officer. A few days earlier, he had also sold methamphetamine to the same officer. During a subsequent house raid following his arrest, Mr Ryan was found to be in possession of:

(a)     methamphetamine for the purposes of personal consumption and trafficking;

(b)     MDMA; and

(c)     drug utensils.

His urine samples were also taken, which later tested positive for methamphetamine.

Charges

3       Mr Ryan has pleaded guilty to four charges under the Misuse of Drugs Act 1973 (2020 Rev Ed) (“MDA”) of unauthorised:

(a)     trafficking of a controlled drug, methamphetamine, under section 5(1)(a) MDA (“trafficking charge”);

(b)     consumption of a specified drug, methamphetamine, under section 8(b)(ii) MDA (“consumption charge”);

(c)     possession of a controlled drug, methamphetamine, under section 8(a) MDA (“possession charge”); and

(d)     possession of drug utensils under section 9 of the MDA (“possession of drug utensils charge”).

4       He has also consented to have another three similar charges under the MDA taken into consideration for the purpose of sentence (“TIC”). These relate to unauthorised:

(a)     trafficking of a controlled drug, methamphetamine, under section 5(1)(a) MDA;

(b)     possession of a controlled drug, methamphetamine, for the purpose of trafficking under section 5(1)(a) read with section 5(2) MDA; and

(c)     possession of a controlled drug, MDMA, under section 8(a) MDA.

Prescribed punishment

5       For drug trafficking, section 33(1) MDA prescribes a mandatory minimum sentence of five years’ and five strokes of the cane.

6       By virtue of his two previous drug rehabilitation centre admissions in 2017 and 2019, Mr Ryan is subject to Long Term-1 (“LT-1”) enhanced punishment for drug consumption under section 33A(1) MDA, which prescribes a mandatory minimum sentence of five years’ imprisonment and three strokes of the cane.

7       As for drug possession and possession of drug utensils, the maximum punishments prescribed by section 33(1) MDA are ten years’ imprisonment and/or fine of S$20,000; and three years’ imprisonment and/or fine of $10,000 respectively.

Parties’ positions

8       The prosecution has sought to impose a global sentence of six years’ six months’ imprisonment and eight strokes of the cane on Mr Ryan. The defence has submitted six years’ two months’ imprisonment and eight strokes of the cane.

9       The parties agree on the individual sentences to be imposed on each charge and only part ways on how the sentences are to run. Except for the sentence on the consumption charge that is to run concurrently, the prosecution has asked for the sentences on the remaining three trafficking, possession and possession of drug utensils charges to run consecutively. The defence has asked for only two sentences on the trafficking and possession charges to run consecutively instead.

Court’s decision

10     I sentence Mr Ryan to six years’ six months’ imprisonment and eight strokes of the cane. I set out the reasons for my decision.

Issues to be decided

11     There are two main issues I have to decide in this case.

Length of individual custodial sentences and how they should run

12     The first issue is whether I agree with the individual sentences put forth by the parties. The second is how these individual sentences are to run.

13     I resolve the issues in this way:

(a)     I agree with the individual sentences as proposed by the parties; and

(b)     I agree with the prosecution that I should run the sentences on the trafficking, drug possession and possession of drug utensils charges consecutively, with the remaining sentence on the consumption charge to run concurrently with the other sentences.

Analysis of issues

14     I preface the analysis of the issues by reiterating that the operative sentencing consideration for drug offences is unequivocally deterrence; because of the harm inflicted on the individual offenders and society at large, it cannot be gainsaid that the price that must therefore continue to be paid is eternal vigilance in the form of deterrent sentencing: PP v Jeon Suji [2024] SGDC 209 at [12].

15     I analyse the issues in turn.

Issue 1(a): Sentence of five years’ six months’ imprisonment and five stokes of cane on trafficking charge

16     The parties have submitted that the sentence on the trafficking charge ought to be five years’ six months’ imprisonment and five strokes of the cane. I agree.

Starting point sentence range from five to six years’ imprisonment and five to six strokes of cane

17     The proper starting point in determining the appropriate sentence for the trafficking charge is the quantity of methamphetamine trafficked: Loo Pei Xiang Alan v PP (“Alan Loo”) [2015] 5 SLR 500 at [13]. Given the very small quantity of 0.27g of methamphetamine, and applying the “exchange rate” between diamorphine and methamphetamine in Alan Loo at [17] so as to apply the indicative starting points in Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [47], the equivalent quantity of diamorphine would reside within the lowest end of the lowest band encompassing quantities under 3g. This would mean that the applicable starting point sentence for trafficking 0.27g of methamphetamine would range from five to six years’ imprisonment and five to six stokes of the cane.

Starting point sentence of five years’ three months’ imprisonment and five strokes of cane

18     Mr Ryan’ culpability is higher as he was motivated by financial gain to commit the offence. First-time traffickers are likely to have diverse motivations such that it would be meaningful to distinguish between those who are profit- driven and those who are not: Alan Loo at [27]. As such, I determine the starting point sentence to be five years’ three months’ imprisonment and five strokes of the cane.

Upward adjustment of three months’ imprisonment to starting point sentence

19     I then consider the further adjustments to be made to the starting point sentence to take into account offender-specific aggravating and mitigating factors.

20     The presence of similar TIC charges, one of trafficking and the other of possession for the purpose of trafficking, is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. The TIC charge of trafficking is particularly egregious because it represents the second occasion where Mr Ryan sold drugs to the same undercover CNB officer over a short span of merely four days. Together with the separate TIC charge of drug possession for the purpose of sale, this shows a pattern of criminal activity that suggests deliberate rather than causal involvement in drug trafficking: UI at [37]. I therefore apply an upward adjustment of three months’ imprisonment to the starting point sentence.

21     As the defence rightly conceded, entrapment is not a defence. By extension, the fact that trafficking occurred in the context of multiple entrapments is quite irrelevant. That Mr Ryan should not have been lured (if at all) to traffic drugs by the second entrapment is no answer to the simple point that he ought to have known better and should not have trafficked in drugs at all, much less a second time even when such an opportunity presented itself. The fact that Mr Ryan had drugs in his possession for sale and also drug utensils for this purpose militates against the argument that he would not have trafficked in drugs but for the opportunities that the two occasions of entrapment had afforded him to do so.

22     It is trite that any financial hardship that drove Mr Ryan to traffic in drugs is generally of little or no mitigatory value; it was also not suggested that he was experiencing exceptional or extreme hardship arising out of genuinely desperate needs and times. In the absence of Mr Ryan extending his cooperation beyond his confession, his cooperation with the authorities does not carry strong mitigatory weight since the case is often overwhelmingly against drug traffickers because of the operative presumptions: Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [73]. Although Mr Ryan’s guilty plea carries mitigatory weight, the sentence cannot be reduced below the mandatory minimum sentence on account of it. Instead, I have factored this into my calibration of the overall sentence for the trafficking charge.

23     The final sentence for the trafficking charge is therefore five years’ six months’ imprisonment and five strokes of the cane.

Issue 1(b): Sentence of five years’ imprisonment and three stokes of cane on consumption charge

24     The parties have submitted that the sentence on the consumption charge ought to be five years’ imprisonment and three stokes of the cane. I too agree.

Starting point sentence of five years’ imprisonment and three stokes of cane

25     The starting point sentence for an LT-1 consumption charge is the statutorily prescribed minimum punishment of five years’ imprisonment and three strokes of the cane.

No adjustment to starting point sentence necessary

26     Other than those that form the basis for the enhanced LT-1 punishment, Mr Ryan has a similar but dated antecedent for drug consumption more than a decade ago in 2012 when he was 19. He was also placed under drug supervision in 2015. He is obviously not a first-time drug user; in fact in relation to the present drug consumption, he had admitted to smoking methamphetamine two to three times a week, though the circumstances leading to the offence was that he took drugs to relieve stress due to his unemployment. His records show that his last drug use was in 2019 and he had stayed drug free till 2023.

27     On balance, I do not find it necessary to make any upward adjustment to the starting point sentence and the final sentence on the consumption charge is therefore the minimum prescribed punishment of five years’ imprisonment and three strokes of the cane. Likewise, the sentence cannot be reduced below this mandatory minimum sentence on account of his guilty plea, but I have factored this in my considerations when deciding not to make any upward adjustment to the starting point sentence.

Issue 1(c): Sentence of eight months’ imprisonment on possession charge

28     The parties have submitted that a sentence of eight months’ imprisonment should be imposed on the possession charge. Again I agree.

Starting point sentence of six to 18 months’ imprisonment

29     The starting point sentence for a first offender possessing a small quantity of Class A controlled drug is six to 18 months’ imprisonment: Dinesh Singh Bhatia s/o Amarjeet Singh v PP [2005] 3 SLR(R) 1 at [38] as applied in the context of drug possession in PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 (“Alvin Lim”) at [28] and Liew Zheng Yang v PP [2017] 5 SLR 1160 at [18].

Upward adjustment of two months’ to starting point sentence

30     I consider the aggravating and mitigating factors that warrant an upward or downward adjustment to the starting point sentence.

31     In terms of the aggravating factors:

(a)     first, the quantity of drugs possessed is a proxy of the harm caused by such possession; the greater the quantity, the graver the harm to the individual offender abusing the drugs, and therefore the greater the aggravating effect. In the present case, the quantity of methamphetamine in Mr Ryan’ possession is small, not less than 0.4g;

(b)     second, the drugs that were in Mr Ryan’ possession for this particular charge was for his own consumption. As the harm caused is confined to himself, it is less aggravating as opposed to possession for the purpose of trafficking that causes harm to others: Liew Zhen Yang at [14];

(c)     third, where the possession is for the purpose of consumption, there is a greater need for specific deterrence if the offender were an addict or a casual user, as opposed to a one-off user: Alvin Lim at [29]. In the present case, the facts reveal that Mr Ryan was a casual user at the very least, having abused drugs about two to three times a week. As such, specific deterrence applies in the present case; and

(d)     fourth, there is the aggravating presence of a similar TIC charge of possession of a different type of drug.

32     As for the mitigating factors:

(a)     first, being 30 years old at the time of the offences, Mr Ryan cannot avail himself of youth as a mitigating factor and the consequent baseline of six months’ imprisonment for younger offenders: Alvin Lim at [28]; Liew Zheng Yang at [20]. Indeed, the court in Alvin Lim had observed that for the 27-year-old accused in that case, there was no reason to think that the same position taken with young offenders should also apply to him: Alvin Lim at [15].

(b)     second, in cases of drug possession, if there is little room to suggest that the offender was not in possession, a plea of guilt will often carry little if any weight: Alvin Lim at [25].

33     The upshot of balancing the aggravating and mitigating factors lands on the side of a slight upward adjustment of two months’ imprisonment. The final sentence on the consumption charge is therefore eight months’ imprisonment.

Issue 1(d): Sentence of four months’ imprisonment on possession of drug utensils charge

34     The parties have submitted that a sentence of four months’ imprisonment should be imposed on the charge of possession of drug utensils. I also agree.

Starting point sentence of three months’ imprisonment

35     The starting point sentence for a possession of drug utensils charge is three months’ imprisonment, which is the median sentence passed on similar offenders who have pleaded guilty: Effrizan Kamisran v PP [2020] 5 SLR 747 at [40].

Upward adjustment of one month’s imprisonment to starting sentence

36     I apply a slight upward adjustment of one month’s imprisonment to take into account the fact that possession of the drug utensils was not only for the purpose of drug consumption but also for trafficking as well. The weighing scale was used to weight the drugs for his personal consumption and for his clients’ orders as well.

37     The final sentence for the possession of drug utensils charge is therefore four months’ imprisonment.

Issue 2: Sentences on trafficking, drug possession, and possession of drug utensils charges to run consecutively

38     I next consider how the individual sentences on the four charges are to run.

39     The defence has submitted for only the sentences on the trafficking and possession charges to run consecutively, on the basis that Mr Ryan already faces the prospect of a substantial term of imprisonment, which is qualitatively different from his previous stint at the Reformative Training Centre (“RTC”) and the Drug Rehabilitation Centre (“DRC”), and also a considerable number of strokes of the cane with the two sentences running consecutively. But that prospect is necessarily the consequence of committing multiple offences. Mr Ryan’s previous RTC and DRC stints have also proven to lack deterrent bite.

40     Other than the sentence on the consumption charge that is to run concurrently, the prosecution, on the other hand, has sought for the sentences on the three remaining charges to run consecutively. According to the prosecution, running any less than three sentences consecutively would yield a global sentence that is inadequate to reflect the multiple offences committed by Mr Ryan. I agree. Mr Ryan has committed multiple drug-related offences. Out of these seven offences, four attract a mandatory minimum sentence of five years’ imprisonment. The fact that two of these arose out of separate entrapments is irrelevant. Indeed, if anything, the second entrapment provided Mr Ryan a point of repentance to reconsider engaging in further criminal behaviour, but he chose not to turn away from crime and confirmed his deliberate involvement in criminal activity instead.

41     The totality principle has generally been taken to possess a limiting function, but it is equally capable of having a boosting effect on individual sentences where they would otherwise result in a manifestly inadequate overall sentence; this is because the principle not only requires the overall sentence not be excessive but also that it not be inadequate: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [20]. In the present case, running the sentences for the trafficking and consumption charges consecutively would have yielded a ten-year imprisonment term that would have been excessive; but running only the sentence for the trafficking charge consecutively with that for either possession charges only would represent some sort of bulk discount in sentencing that has the effect of conveying the unintended impression or suggestion that Mr Ryan does not have to bear the full brunt of the consequence of multiple offending, and in relation to serious offences at that: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [46], [75], [81].

42     Because the offences are also separate, unrelated and violate different legally-protected interests, I therefore order that the sentences on the trafficking, possession and possession of drug utensils charges to run consecutively: Raveen Balakrishnan at [41] and [102].

Conclusion

Aggregate sentence of six years’ six months’ imprisonment and eight strokes of cane imposed

43     I therefore sentence Mr Ryan to six years’ six months’ imprisonment and eight strokes of the cane, comprising:

(a)     five years’ six months’ imprisonment and five strokes of the cane on the trafficking charge;

(b)     five years’ imprisonment and three stokes of the cane on the consumption charge;

(c)     eight months’ imprisonment on the possession charge; and

(d)     four months’ imprisonment on the possession of drug utensils charge.

I order the sentences on the trafficking, drug possession, and possession of drug utensils charges to run consecutively, with the imprisonment term for the consumption charge to run concurrently. As concurrent sentences of caning cannot be ordered, they have to be aggregated as a cumulative sentence.

44     The aggregate sentence cannot be said to be substantially above the normal level of sentences for the most serious of the individual offences committed (being five years’ imprisonment and five strokes of the cane): Mohammed Shouffee bin Adam v PP (“Shouffee”) [2014] 2 SLR 998 at [54]. It would also not be crushing and not in keeping with his past record (given his similar drug-related antecedents) and future prospects (given that he is presently 31 years old) of setting a positive example for his children, staying resolutely away from drugs, committing to personal growth and providing a better future for his family, such that only two sentences should run consecutively, or that the individual sentences need to be re-calibrated in order to arrive at an appropriate aggregate sentence: Shouffee at [57].

45     I also backdate the sentence to 7 August 2023, when Mr Ryan was first arrested to take into account any period of custody and remand and to exclude his bail period from 3 April 2024 till date.

46     While I may not have agreed with the defence submissions in its entirety, I fully endorse the very measured and sensible approach it has taken in generally agreeing with the prosecution’s position on the individual sentences and parting ways only when it comes down to how the sentences are to be run that is necessary in the interests of the client. This effort is not only laudable but enlightened and is to be encouraged in criminal proceedings.

"},{"tags":["Tort – negligence – claim by client premised on solicitors’ failure to raise arguments in court proceedings","Tort – negligence – whether solicitors’ failure to raise arguments occasioned loss"],"date":"2024-09-04","court":"District Court","case-number":"District Court Suit No 1401 of 2021","title":"Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)","citation":"[2024] SGDC 228","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32170-SSP.xml","counsel":["Mr Suang Wijaya (Eugene Thuraisingam LLP) for the plaintiff","Mr Alfonso Ang and Mr Neo Wei Liang Anneson (A.Ang, Seah & Hoe) for the defendant."],"timestamp":"2024-09-23T16:00:00Z[GMT]","coram":"Teo Guan Kee","html":"Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)

Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)
[2024] SGDC 228

Case Number:District Court Suit No 1401 of 2021
Decision Date:04 September 2024
Tribunal/Court:District Court
Coram: Teo Guan Kee
Counsel Name(s): Mr Suang Wijaya (Eugene Thuraisingam LLP) for the plaintiff; Mr Alfonso Ang and Mr Neo Wei Liang Anneson (A.Ang, Seah & Hoe) for the defendant.
Parties: Wen Wen Food Trading Pte. Ltd. — Tan Yew Seng (Practising as Alfred Tan & Co.)

Tort – negligence – claim by client premised on solicitors’ failure to raise arguments in court proceedings

Tort – negligence – whether solicitors’ failure to raise arguments occasioned loss

4 September 2024

Judgment reserved.

District Judge Teo Guan Kee:

Introduction

1       The Plaintiff is a company, incorporated in Singapore, carrying on business as an operator of food stalls.

2       The Defendant is and was, at all material times, an advocate and solicitor.

3       The Defendant acted for the Plaintiff in High Court Suit No.930/2018 (“HC/S 930”).

4       The Plaintiff alleges that the Defendant was negligent in his conduct of HC/S 930 on behalf of the Plaintiff and has accordingly brought these proceedings against the Defendant seeking damages to be paid by the latter for loss occasioned by his negligence.

Brief Procedural History of HC/S 930

5       HC/S 930 was commenced on 21 September 2018 by the Plaintiff herein against a company known as Food Republic Pte Ltd (“Food Republic”).

6       The Plaintiff, which operated, inter alia, a food stall (the “ION Stall”) in a food court run by Food Republic located at ION Orchard (the “ION Foodcourt”), claimed that the latter had failed to honour a representation to allow the Plaintiff to operate the ION Stall for six years.

7       Specifically, the Plaintiff averred in HC/S 930 that Food Republic refused to extend the Plaintiff’s licence to operate the ION Stall and instead asked the Plaintiff to vacate the stall by 25 May 2018, less than six years from May 2016, being the date from which the Plaintiff alleged the promised six-year licence should have started to run.[note: 1]

8       After HC/S 930 was commenced, Food Republic, through its counsel, applied in HC/SUM 4872/2018 (“SUM 4872”) for the action brought by the Plaintiff to be struck out. Food Republic’s application was granted by an Assistant Registrar (“AR”) on 27 November 2018, and the Plaintiff’s action in HC/S 930 was struck out in its entirety.

9       The Plaintiff appealed against the decision of the AR by way of HC/RA 320/2018 (“RA 320”). RA 320 was heard by Dedar Singh Gill JC (as His Honour then was) and His Honour dismissed the Plaintiff’s appeal on 11 January 2019, with Grounds of Decision published on 7 March 2019 as [2019] SGHC 60 (the “RA 320 GD”).

10     In the RA 320 GD, the Judicial Commissioner noted that the Plaintiff’s action against Food Republic was based on a representation made by Food Republic that the Plaintiff would be able to operate the ION Stall for at least six years.[note: 2]

11     However, the Judicial Commissioner agreed with the AR in SUM 4872 that this argument was legally unsustainable, observing that the plaintiff could not have relied on or been induced by a misrepresentation (that a six-year license would be granted), as this directly contradicted the two-year licence period specified in the written contract between the parties.[note: 3]

12     It is also relevant, given the arguments raised by the Plaintiff in the present proceedings, that the Judicial Commissioner expressly remarked in the RA 320 GD that there was “no option to renew” the licence for the ION Stall in the written agreement between the Plaintiff and Food Republic.[note: 4]

13     The Plaintiff was dissatisfied with the decision in RA 320 and lodged an appeal to the Court of Appeal by way of a Notice of Appeal dated 1 February 2019, heard as CA/CA 16/2019 (“CA 16”).

14     CA 16 was heard before the Court of Appeal on 25 September 2019 and the Court of Appeal similarly dismissed the Plaintiff’s appeal.

15     The Defendant herein acted as counsel for the Plaintiff in HC/S 930 (including RA 320) as well as CA 16 up to and including the dismissal of CA 16 by the Court of Appeal.

16     For ease of reference, the proceedings in HC/S 930 (including RA 320) and CA 16 will collectively be referred to as the Food Republic Proceedings.

Summary of the Parties’ positions

The Plaintiff’s allegations

17     It is not disputed that, as the Plaintiff’s counsel on record in the Food Republic Proceedings, the Defendant owed to the Plaintiff a duty of care.

18     The Plaintiff has alleged that the Defendant breached this duty of care in failing to raise either of the two following arguments in the Food Republic Proceedings:

(a)     An argument that the Plaintiff had validly exercised a right of renewal contained in Clause 12 of a Licence Agreement (“Clause 12”), entered into between the Plaintiff and Food Republic dated 27 October 2016 (the “Licence Agreement”) pertaining to the Plaintiff’s operation of the ION Stall (the “Clause 12 Argument”); and

(b)     An argument that the Plaintiff was labouring under a unilateral mistake in believing that it was entitled to operate the ION Stall for six years when the Licence Agreement was signed (the “Mistake Argument”).

19     The Plaintiff avers that the Defendant’s failure to raise either the Clause 12 Argument or the Mistake Argument was the “direct and proximate cause of HC/S 930 being struck out”.[note: 5]

20     As such, the Plaintiff avers, the Defendant’s aforementioned failures caused the Plaintiff to lose a “real and substantial chance” of obtaining relief against Food Republic in HC/S 930 or, alternatively, to obtain a favourable out-of-court settlement with Food Republic.[note: 6]

The Defence

21     The Defendant accepts that he did not raise either the Clause 12 Argument or the Mistake Argument in the Food Republic Proceedings.

22     That said, the Defendant argues that his failure to raise these arguments did not amount to a breach of the duty of care which he owed to the Plaintiff in the Food Republic Proceedings, as he had valid reasons for not raising them.

23     In any event, the Defendant submits, his failure to raise the Clause 12 Argument and the Mistake Argument did not cause the Plaintiff to lose the chance of obtaining a favourable outcome or settlement in HC/S 930.

Background to the Plaintiff’s operation of the ION Stall

24     The Plaintiff’s primary witnesses in the proceedings before me were Mr Wang Lock Thean (“Wang”) and Mdm Elsie Tan (“Elsie”), a married couple.

25     Wang and Elsie were, at all material times, the directors of the Plaintiff.

26     In his Affidavit of Evidence-in-Chief (“AEIC”) filed in these proceedings, Wang asserted that the idea of taking up the ION Stall was first pitched to himself, Elsie and one Tan Boon Kiau (“BK Tan”) in or around March 2014 by two representatives of Food Republic, who he identified as Marquis Hou (“Marquis”) and Alvin Ong Lye Hock (“Alvin”).[note: 7]

27     BK Tan was not an officer of the Plaintiff, but Wang asserted that he was a person with whom the Plaintiff intended to “go into” the business of operating the ION Stall.[note: 8]

28     Wang asserted that Marquis and Alvin had informed BK Tan, Elsie and himself, inter alia, that if they became the operator of a stall at the then upcoming ION Foodcourt, they would have “priority to renew [its] licences each time [its] licence was up, which meant that [the Plaintiff] would effectively be able operate [sic] the stall for a duration of 6 years”.[note: 9]

29     I note that in HC/S 930, Food Republic did not agree with this position and that Alvin had affirmed an affidavit in those proceedings denying that Food Republic had, at any stage, represented that the licence period for the ION Stall would be six years.[note: 10]

30     On 26 March 2014, BK Tan signed a “stall licence booking form” for the ION Stall, for the sale of Yong Tau Foo (the “2014 Booking Form”).[note: 11]

31     For present purposes, it suffices to note that the 2014 Booking Form:

(a)     specified a licence period of “2 years”; and

(b)     contained the following acknowledgement directly above BK Tan’s signature:

I/We understand that this application is subject to acceptance, in whole or part. I/We agree to render my/our cooperation and be bounded by the terms and conditions of the licence agreement should I/We be selected.

(Emphasis added)

32     Although the 2014 Booking Form was signed in 2014, the ION Stall only commenced operations in or around June 2016 and the Licence Agreement for the ION Stall was formalised only on 27 October 2016. The parties to the Licence Agreement were Food Republic and the Plaintiff herein.

33     By way of further background, when the 2014 Booking Form was signed, the Plaintiff had not been incorporated. However, by the time the Licence Agreement was signed, the Plaintiff had been incorporated (in May 2016). Under cross-examination, Wang confirmed that the Plaintiff had been set up to operate the “business at ION”.[note: 12]

34     The Licence Agreement provided, in summary, that Food Republic would grant to the Plaintiff a “licence to use and occupy” the ION Stall on the terms and conditions set out therein.

35     In particular, the Licence Agreement included the following salient terms:

(a)     Section 6 of the Appendix to the Licence Agreement (the “Agreement Appendix”) provided for a license period of “27 May 2016 – 31 May 2018 (2 years)”.

(b)     Clause 12, entitled “Option to Renew”, stated that Food Republic “shall grant” the Plaintiff a “further licence” for a “renewal term and based on the further conditions as stated in Section 16”, which was a reference to section 16 of the Agreement Appendix.

(c)     The right to renew mentioned in Clause 12 was also subject to, inter alia, a requirement set out in Clause 12.1.1 of the Licence Agreement that the Plaintiff give “a notice to [Food Republic], not less than 6 months and not more than 9 months before the expiry of the Licence, that it wishes to exercise the option to renew the Licence”. Based on the licence period ending 31 May 2018, the relevant period during which the Plaintiff was required to give notice pursuant to Clause 12.1.1 (the “Window Period”) would have been from around the beginning of September 2017 to end November 2017.

(d)     Section 16 of the Agreement Appendix contained, under the title “Option to Renew”, only the notation “-NA-“, which the parties agreed was an abbreviation of the words “Not Applicable” (although they did not agree on the effect of this notation).

(e)     Clause 30.1 of the Licence Agreement contained an entire agreement clause, whereby the Plaintiff acknowledged that the Licence Agreement contained the whole agreement between the parties and that it had not relied on any oral or written representation made by Food Republic, its employees or agents.

36     On 4 April 2018, Food Republic sent a letter to the Plaintiff entitled “Notice of Expiration and Non-Renewal for [the ION Stall]”. In this letter, Food Republic made reference to the Licence Agreement, noted that it provided that the licence granted thereunder would expire on 31 May 2018 and informed the Plaintiff that Food Republic had decided “not to renew this Licence Agreement”. The letter also indicated that the Plaintiff’s last day of business should be 25 May 2018 and that the ION Stall was to be returned by 31 May 2018.[note: 13]

37     Correspondence then ensued between the Plaintiff and Food Republic in the following weeks, but ultimately Food Republic, through its then-Senior Branch Manager Nick Li, in an email dated 26 April 2018,[note: 14] informed the Plaintiff essentially that no renewal of the licence for the ION Stall would be granted.

38     On 21 May 2018, an email was sent by Elsie to Pearly Teo of Food Republic, stating that the Plaintiff would vacate the ION Stall.[note: 15]

39     Wang confirmed in his AEIC that the Plaintiff thereafter vacated the ION Stall on or around 25 May 2018.[note: 16]

The Clause 12 Argument

Breach of duty

40     The Plaintiff’s counsel have submitted that “on a plain reading of Clause 12.1 of the Licence Agreement, there exists an option to renew” the licence for the ION Stall and, further, that a reasonable solicitor would have:

(a)     further applied his mind to the existence of an option to renew in the Licence Agreement;[note: 17]

(b)     raised Clause 12 in response to Food Republic’s application to strike out the Plaintiff’s action in HC/S 930 and at the appeals therefrom; and

(c)     commenced HC/S 930 as, inter alia, a breach of contract claim alleging a breach of Clause 12 by Food Republic.[note: 18]

41     The Defendant accepts that he did not raise the Clause 12 Argument in the Food Republic Proceedings.[note: 19] It is also apparent, from the Statement of Claim filed in HC/S 930, that the Defendant did not plead any cause of action therein premised on Clause 12. However, he denies that the omission of the Clause 12 Argument from the Food Republic Proceedings arose because he had not properly considered the issue of whether the Plaintiff had an option to renew under Clause 12.

42     To the contrary, the Defendant asserts that he had specifically taken instructions from Elsie and Wang regarding Clause 12 and advised them that they could not seek to rely on the same in HC/S 930, as Elsie and Wang had not been aware of Clause 12 and had not given notice to Food Republic of the Plaintiff’s intention to renew the licence for the ION Stall in accordance with Clause 12.1.1.

43     The Defendant’s position is disputed by the Plaintiff.

44     In this regard, the Plaintiff has claimed that:

(a)     Elsie and Wang were aware of the existence of Clause 12.

(b)     Elsie and Wang did not inform the Defendant that they “did not seek oral renewal of the Licence Agreement” within the period provided for in Clause 12.[note: 20]

45     As such, the Plaintiff argues, it was incumbent upon the Plaintiff to “properly interrogate Clause 12 in the context of the Licence Agreement”.[note: 21]

46     Since the success of the Clause 12 Argument would have been premised on the Plaintiff having given notice of an intention to renew the licence for the ION Stall in accordance with Clause 12, in the next portion of these Grounds, I consider the evidence as to whether Elsie and Wang had been aware of Clause 12, and whether there is evidence that they had given notice in accordance with the requirements of that clause.

Evidence

(1)   Whether Elsie and Wang were aware of Clause 12

47     With respect, it is not entirely clear which period is being referred by the Plaintiff in relation to its submission that Wang and Elsie were aware of the existence of Clause 12.

48     Specifically, it is not clear whether the Plaintiff’s position is that Wang and Elsie had been aware of Clause 12 during the Window Period or whether what the Plaintiff meant was that Wang and Elsie had been aware of Clause 12 when they engaged the Defendant to act for the Plaintiff in connection with the latter’s grievances with Food Republic.

49     It will be appreciated that the point in time at which Wang and Elsie supposedly became aware of Clause 12 would have a significant bearing on their knowledge of the mechanism for seeking renewal set out therein and hence their ability to demonstrate that they had taken the necessary steps to set the aforementioned mechanism in motion.

50     In Wang’s AEIC, he stated that he had brought Clause 12 to the attention of the Defendant at a meeting with the Defendant on or around 30 November 2018, after the AR had ordered that the action in HC/S 930 be struck out.[note: 22] However, this assertion was not supported by any contemporaneous evidence.

51     Further, even if it is true that Wang raised Clause 12 to the Defendant in November 2018, there is evidence which suggests that up to and including May 2018, when the Plaintiff engaged the Defendant, Wang and Elsie were not aware of Clause 12 or its significance.

52     First, none of the three witnesses associated with Food Republic who testified at the trial before me provided any evidence which supported the Plaintiff’s assertion that Wang and Elsie had orally sought to renew the Licence Agreement during the Window Period. This is despite Wang asserting in his AEIC that an oral notice of intention to renew was given to Food Republic’s representatives “approximately 5 times”.[note: 23]

53     Significantly, Wang named “Pearly Teo, Leonard Bong, Nick Li” as the persons to whom they had communicated such an intent. All three of these persons gave evidence at the trial, but not one could recall having been so informed by the Plaintiff’s representatives.

54     Secondly, prior to engaging the Defendant, the Plaintiff had been represented by another firm, Messrs Optimus Chambers LLC (“Optimus”). If Wang and Elsie had been aware of Clause 12 as they claimed, one expects they would have addressed Clause 12 with the solicitors from Optimus as well.

55     Yet, when one looks at the documents prepared by Optimus in connection with the Plaintiff’s claim against Food Republic, Clause 12 does not feature at all.

56     Optimus’ final bill for services rendered to the Plaintiff in connection with its dispute with Food Republic was dated 20 June 2018, after the Defendant had been engaged by the Plaintiff. The Schedule to this bill (the “Optimus Schedule”)[note: 24], which was disclosed in Wang’s own AEIC, contained a summary of work carried out by Optimus on behalf of the Plaintiff between 13 April 2018 and 17 May 2018.

57     The Optimus Schedule confirms that the Licence Agreement had been provided to Optimus and that they had been given instructions to review the same on 13 April 2018.

58     Thereafter, between 17 April 2018 and 25 April 2018, the Optimus Schedule records that Optimus was engaged in discussions with the Plaintiff about corresponding with Food Republic and its representatives.

59     Significantly, the Optimus Schedule then records that on 10 May 2018, Wang and Elsie had met with Optimus’ solicitors for a “lengthy discussion” on Wang and Elsie’s decision to “proceed” with a claim against Food Republic “for breach of their oral contract to allow the [Plaintiff] to renew the Agreement for the next 4 years” (emphasis added).[note: 25]

60     It will be obvious that the claim which Optimus had instructions to commence against Food Republic, as of 10 May 2018, could not have been one based on Clause 12, because the instructions made reference to an oral contract to renew the ION Stall’s licence.

61     Further, Wang confirmed under cross-examination the terms of a draft letter of demand[note: 26] which had been prepared by Optimus to be sent (by Optimus) on behalf of the Plaintiff.[note: 27]

62     The terms of this draft letter of demand further reinforce the instructions received by Optimus on 10 May 2018, as recorded in the Optimus Schedule, in that the draft also makes no mention of Clause 12 or of the Plaintiff having given notice of an intention to renew the licence for the ION Stall.

63     Separately, it is also pertinent to note the transcript of a meeting[note: 28] which Wang and Elsie supposedly attended on 7 May 2018 (about 10 days before the Defendant was engaged), with three persons associated with Food Republic:

(a)     Nick Li (Senior Branch Manager);

(b)     Alvin Ong (Leasing Manager); and

(c)     Andy Kiu (General Manager).[note: 29]

64     As a preliminary point, I would record that I entertain some doubt regarding the accuracy of the transcript.

65     First, the person who prepared the transcript is not identified in the evidence and the transcript itself contains no certification as to accuracy.

66     Secondly, at trial, Nick Li cast doubt on the accuracy of the transcript, as it appeared to record words spoken by a woman who he did not recall was at the meeting.[note: 30]

67     Notwithstanding the foregoing, Wang himself must stand by the transcript, having introduced it into evidence.[note: 31]

68     From the contents of the transcript, it is plain that throughout the meeting, Wang and Elsie’s complaints were centred around a representation that they would be allowed to operate the ION Stall for 6 years. There was no reference at all to Clause 12.

69     To the contrary, the overall tenor of Wang’s complaints against Food Republic during the meeting gives the impression that he was unhappy that Food Republic insisted on sticking to the strict terms of the Licence Agreement, which he called the “contract”.

70     On the whole, therefore, the evidence available to this Court suggests that in May 2018, which also happened to be around the time the Defendant was engaged by the Plaintiff, Wang and Elsie were not aware of Clause 12.

71     That being the case, there is no reason to believe that Wang or Elsie would have been aware of Clause 12 during the earlier Window Period.

72     Taken at its highest, the evidence shows only that Wang and were aware of Clause 12 on or around 30 November 2018, after SUM 4872 had been decided.

73     The Plaintiff’s counsel emphasize that the Defendant herein has not disclosed any attendance notes which he may have made in the course of his retainer with the Plaintiff.

74     The Defendant claimed under cross-examination that he did keep “one or two attendance notes” in response to a suggestion that he could not remember whether he had met with Wang and Elsie after SUM 4872 had been decided.[note: 32]

75     However, the Defendant could only claim to have “no comments” when it was suggested to him that he had not kept attendance notes which would have recorded meetings with Wang and Elsie after CA 16 was heard.[note: 33]

76     I am constrained to agree with the Plaintiff’s counsel that the Defendant’s failure to disclose a single attendance note must, in the words of VK Rajah JC (as he then was) in Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR(R) 594 (“Lie Hendri”), handicap the Defendant insofar as the credibility of his evidence is concerned.

77     However, the absence of attendance notes should not be overstated in this case. As Rajah JC opined in Lie Hendri, it would be “incorrect” to say that “the absence of an attendance note is either tantamount to negligence or robs a solicitor’s testimony of all significance”.

78      A fortiori, the absence of an attendance note supporting a defendant solicitor’s assertions would not necessarily mean that his aggrieved client’s case must, without more, be accepted unconditionally. Ultimately, the Plaintiff still bears the burden of proving its own case.

79     As such, whilst I would view the Defendant’s claims that he had interviewed Wang and Elsie regarding Clause 12 with suspicion, this need not influence the view which I have formed based on evidence available to me from other sources, that is, that Wang and Elsie had not in fact been aware of Clause 12 or its significance during the Window Period and up to the point at which they engaged the Defendant to act for the Plaintiff.

(2)   Whether Wang and Elsie reached out to Food Republic’s representatives during the Window Period

80     Not only does the evidence provide no support for an assertion that Wang and Elsie were aware of Clause 12 prior to May 2018, there is also no independent evidence that Wang and Elsie contacted Food Republic’s representatives during the Window Period to indicate an intention to renew the ION Stall.

81     In his AEIC, Wang asserted that he and Elsie had reached out to Food Republic “[o]n or around October to November 2017 onwards” to arrange a meeting, because it was standard practice for stall owners to ask for an “appointment to renew their licence”,[note: 34] and also that they had verbally informed Food Republic’s representatives of their intention to renew the licence for the ION Stall.

82     However, these were bare assertions. There was no supporting evidence, for example in the form of text messages, showing that Wang and Elsie had asked for such a meeting at all, during the Window Period, despite Wang disclosing, in his AEIC, text messages which he exchanged with Pearly in February 2018, just a few months thereafter (but after the Window Period had ended), requesting a meeting.

83     Further, as mentioned above, none of Pearly Teo, Leonard Bong and Nick Li could recall, when questioned at trial, that they had been informed of the Plaintiff’s intention to renew the licence for the ION Stall.[note: 35]

Analysis

84     In considering whether the Defendant breached the duty which he owed to the Plaintiff, comments made by Belinda Ang J, in the case of Sports Connection Pte Ltd v Asia Law Corp and another [2015] SGHC 213 (“Sports Connection”) are apposite.

85      Sports Connection involved an action brought by a company against its solicitors for negligent advice, in connection with a lawsuit conducted by the latter on behalf of the former.

86     Ang J opined in Sports Connection at [13] that defendant solicitors “cannot be liable for any error of judgment in the course of a lawsuit”.

87     In making this remark, Ang J plainly did not mean that errors of judgment could never give rise to a cause of action in negligence against a solicitor guilty of that error; instead, it appears this remark was a reminder that not every error of judgment would give rise to such a cause of action.

88     Ang J also remarked in Sports Connection that a defendant solicitor’s conduct ought not to be assessed with the benefit of hindsight.

89     Given my finding that Wang and Elsie were not aware of Clause 12 during the Window Period, it follows that they could not possibly have knowingly acted, in accordance with Clause 12, to give notice of the Plaintiff’s intention to renew the licence for the ION Stall, during the Window Period.

90     That being said, if one takes the interpretation of Clause 12 which is most generous to the Plaintiff, this still leaves the possibility of making an argument that Wang and Elsie unknowingly engaged in communications with representatives of Food Republic, during the Window Period, which could constitute notice of an intention to renew, sufficient to meet the requirements of Clause 12.

91     Herein lies the significance of the Plaintiff’s assertion that Wang and Elsie had not informed the Defendant that they did not seek renewal of the Licence Agreement by giving verbal notice of an intention to do so. The Plaintiff’s case is effectively that because Elsie and Wang had not expressly provided information to the Defendant which ruled out the possibility that notice of an intention to renew had been unknowingly provided, the Defendant ought to have pleaded a cause of action premised on such a possibility.

92     The question is therefore whether, in failing to anticipate this cause of action, the Defendant’s conduct had fallen below the standard of a reasonably competent lawyer. In my view, the answer to this question is “no”.

93     Bearing in mind that the Plaintiff’s representatives were not, during the Window Period in 2017 or when the Defendant was first engaged in May 2018, aware of Clause 12, the Plaintiff’s case could not be that the Defendant failed to uncover the Plaintiff’s knowing exercise of its rights thereunder, but could only be that the Defendant failed to construct a case around facts which could have constituted an unknowing exercise, by the Plaintiff, of its right to the renewal provided for in Clause 12.

94     This position is reflected in the Plaintiff’s Closing Submissions, wherein the Plaintiff’s case was premised on the Defendant’s failure to “interrogate” or raise Clause 12 in the Food Republic Proceedings,[note: 36] as opposed to any assertion by Wang or Elsie that they had exercised the Plaintiff’s rights under Clause 12, and thereafter informed the Defendant of this.

95     The Plaintiff also asserted that because Wang and Elsie had not informed the Defendant that they had failed to seek oral renewal under Clause 12 within the Window Period, the Defendant was “at liberty”[note: 37] to raise Clause 12 in the Food Republic Proceedings.

96     It is clear, from the judgment in Sports Connection, that Ang J was acutely sensitive to the factual background in considering whether a lawyer’s actions had fallen below the standard expected of a reasonably competent lawyer.

97     Similarly, Judith Prakash J, in Tan & Au LLP v Goh Teh Lee [2012] 4 SLR 1 (“Goh Teh Lee”) at [64], recognised that when considering whether a solicitor has exercised reasonable skill and care, he should be judged in light of the circumstances existing at the time and not on hindsight.

98     Here again, the question of the defendant solicitor’s liability was also said by Prakash J (at [57] of Goh Teh Lee) to turn on whether any error made by the solicitor “was one which no reasonably competent solicitor would have made”.

99     Viewed in light of the information available to him at the time (for which the evidence adduced in these proceedings must be the proxy), the Defendant’s failure, in relation to his handling of the Food Republic Proceedings, was at best a failure to construct a case based on some informal notification, unsupported by any documentary evidence, which could have formed the basis for renewal under Clause 12.

100    I accept the Plaintiff’s argument that the Defendant cannot be allowed to rely on the defence that he had not been expressly instructed to construct such a case to absolve himself of liability. This is because ultimately the Plaintiff engaged the Defendant so as to benefit from the latter’s skill and experience as counsel.

101    That said, the fact that no express instructions were given by the Plaintiff to the Defendant to construct a case around the requirements of Clause 12 is still relevant, for it meant that that the Defendant was free to exercise his professional judgment to decide whether or not to put forward a case premised on Clause 12 in the Food Republic Proceedings.

102    This, taken together with the consideration that any notification of an intention to renew the licence during the Window Period would only have been made informally, without direct reference to Clause 12 and that any such notification was unsupported by documentary evidence, leads me to conclude that the Defendant’s failure to raise Clause 12 in the Food Republic Proceedings did not fall below the standard of a reasonably competent lawyer.

103    In other words, the failure by the Defendant to raise Clause 12 was not an omission which no reasonably competent solicitor would have made.

104    The nature of the Defendant’s failure, in this case, may be usefully contrasted against those of the defendant solicitors in the decision of Kitchen v Royal Air Force Association and others [1958] 1 WLR 563 (“Kitchen”). In Kitchen, the defendant solicitors were ultimately found by the English Court of Appeal to have been negligent in their handling of a claim on behalf of the plaintiff.

105    Specifically, the failures of an articled clerk handling the plaintiff’s matter (which were apparently attributed to the defendant firm) were helpfully summarised by Sellers LJ as follows (at pages 577 to 578 of the Judgment):

(a)     “inadequate efforts had been made to obtain evidence…”;

(b)     “failed to serve a writ within the statutory period of one year to keep the claim open…”

(c)     “failed to inform the plaintiff of the time-limit for the writ and the consequences of not issuing the writ and to obtain her instructions…”

106    It will be apparent from the foregoing that the failures attributed to the defendant solicitors in Kitchen were far more egregious than the failure of the Defendant before me.

107    Separately, in my view, it is not sufficient for the Plaintiff, in order to succeed in its action herein, to show that a notional argument, premised on Wang and Elsie having given oral notification to Food Republic of an intent to renew the licence for the ION Stall, could have staved off the striking out application made in SUM 4872.

108    The Defendant herein was plainly not engaged by the Plaintiff only to successfully resist a striking out application.

109    As such, a lawyer is not invariably to be regarded as having fallen below the standard of a reasonably competent lawyer only on account of having failed to raise an argument which is strong enough to defeat a striking out application but which, on the information available to that lawyer, he reasonably felt would not succeed at trial.

Breach of duty: Conclusion

110    By reason of the foregoing, I find that the Defendant did not breach his duty of care to the Plaintiff in failing to raise the Clause 12 Argument in the Food Republic Proceedings.

Causation

111    Even if, contrary to my findings above, the Defendant was remiss in failing to raise the Clause 12 Argument in the Food Republic Proceedings, in my view the Plaintiff herein has still not demonstrated that such a failure occasioned any loss to the Defendant.

112    I say this because:

(a)     there is insufficient evidence to show that Clause 12 was not considered in the Food Republic Proceedings; and

(b)     I do not accept the Plaintiff’s counsels’ submissions as to what the likely outcome of the Food Republic proceedings would have been if the Clause 12 Argument had been raised by the Defendant.

Insufficient evidence to show that Clause 12 was not considered in the Food Republic Proceedings

113    The Plaintiff’s counsel submits that Clause 12 is “a direct response to the Courts’ findings that there was no option to renew the Licence Agreement” which, had it been brought to the Court’s attention, would have led to HC/S 930 being “allowed to proceed”.[note: 38]

114    However, there is no evidence that Clause 12 was not considered in the Food Republic Proceedings.

115    Both the Judicial Commissioner in RA 320, as well as the Court of Appeal in CA 16, expressly made comments to the effect that the Licence Agreement contained no option to renew.

116    At the very first hearing of RA 320 on 17 December 2018, Gill JC highlighted the Appendix to the Licence Agreement and provisionally commented that

Licence period is stated to be two years. Page 62 under “Option to Renew” states NA. This is the difficulty with the Plaintiff’s case.[note: 39]

117    Subsequently, in the Notes of Evidence (“NE”) for the hearing of RA 320 on 11 January 2019, the Judicial Commissioner was again recorded as having specifically highlighted the Appendix to the Licence Agreement, in particular, the section entitled “Option to Renew”. This was directly linked to Clause 12, which was also entitled “Option to Renew”.

118    Similarly, regard can also be had to the certified NE for the hearing of CA 16 on 25 September 2019, wherein it is recorded that the Court of Appeal stated, inter alia, “there is no option to renew in the Licence Agreement”.

119    With respect to the Plaintiff’s counsel, there is no basis for me to conclude that the coram in RA 320 and CA 16 had failed to consider the possible import of Clause 12, before expressing their opinion that the Licence Agreement did not contain any option to renew.

120    It is worth noting that in arriving at their respective decisions in the Food Republic proceedings, the AR in SUM 4872, the Judicial Commissioner in RA 320 and the Judges of Appeal in CA 16 all made reference to the primacy of the Licence Agreement over any alleged representation made by Food Republic, thus demonstrating a focus on the terms of the Licence Agreement.

121    In view of the aforementioned Courts’ recognition of the importance of the Licence Agreement, the Plaintiff’s submission that Clause 12 of the Licence Agreement could not have been considered by all the Courts involved in the Food Republic Proceedings is not one which I am prepared to accept.

The Plaintiff’s submissions as to the hypothetical outcome of the Food Republic Proceedings if the Clause 12 Argument had been raised

122    The Plaintiff has put forward a version of events which it says would likely have transpired had the Clause 12 Argument been raised in the Food Republic Proceedings. Specifically, in the Plaintiff’s Closing Submissions, it submitted that:

(a)     The Plaintiff “would have had a strong case to argue that, based on a plain reading of Clause 12 and Section 16 [of the Agreement Appendix], there would have been an option to renew if the conditions at Clauses 12.1.1 to 12.1.3 were satisfied”.[note: 40]

(b)     “In construing the Licence Agreement the Court would lean towards the interpretation that there is an option to renew in Clause 12, with no further conditions that need to be fulfilled as none are detailed in Section 16” due to the operation of the contra proferentum rule.[note: 41]

(c)     The Court in HC/S 930 would likely have been persuaded that “the lack of defining of the terms of the renewal period and price simply means that Food Republic is obliged to grant a renewal period on the terms of the Licence Agreement”.[note: 42]

(d)     Since Clause 12 “sets clearly defined conditions that [the Plaintiff] had to fulfil before it could avail itself of the option to renew”, in that there was a specified period within which notice had to be served on Food Republic and the Plaintiff was obliged not to be in default of the Licence Agreement, this “must mean that the parties had explicitly contemplated and intended for there to be an option to renew in the Licence Agreement, and Food Republic had agreed to such an obligation. Had there been any more qualifications that Food Republic wished to have made, it would have made it amply clear in Section 16 [of the Agreement Appendix].”[note: 43]

123    I have set out the Plaintiff’s submissions in some detail to illustrate the lengths to which this Court is being invited to go, in hypothesizing as to the likely outcome of a trial, in the High Court, of HC/S 930.

124    On the information available to this Court, I am unable to conclude that there was a real and substantial chance that HC/S 930 would have turned out in the manner contended for on behalf of the Plaintiff, as summarised above.

125    The Plaintiff’s description of the putative outcome of a trial in HC/S 930 is premised, not just on findings of law, but of fact as well, for instance, that the preconditions for renewal set out in Clause 12 had been met.

126    As such, in order for this Court to arrive at the same view as that advocated for by the Plaintiff as to the outcome of a trial in HC/S 930, I would be required to agree with the Plaintiff that there was at least a real and substantial chance that the findings required to arrive at the aforementioned outcome would have been made.

127    To begin, I do not see how this Court could blithely arrive at such a conclusion, in the absence of both evidence adduced and arguments advanced by Food Republic, which is not a party to this suit.

128    Here, the Plaintiff’s suggestion that this Court can “evaluate” the Plaintiff’s chance of succeeding in HC/S 930 in percentage terms is, with respect, a non-starter because it is not even apparent that Food Republic had filed a Defence to the Plaintiff’s claim in HC/S 930 when the Plaintiff’s action therein was struck out.

129    The decision in Hanif v Middleweeks (a firm) [2000] Lloyd’s Rep PN 920, which the Plaintiff seeks to rely on, does not assist the Plaintiff here.

130    In that case, the English Court of Appeal was able to assess the plaintiff client’s chance of success in litigation, which had been struck out due to want of prosecution on the part of their solicitors (whom the client sued), by examining the merits of the defences which had been raised by the defendants in the suit which had been struck out. In contrast, no formal Defence was filed by Food Republic before HC/S 930 was struck out.

131    As such, the Plaintiff’s counsel herein was reduced to speculating about the supposed defences that would have been raised by Food Republic in HC/S 930 to a notional Clause 12 Argument but, at the same time, submit that these defences would not have found purchase with the High Court in the event of a trial. This was effectively a situation in which the Plaintiff’s counsel were arguing against themselves.

132    In any event, even if this Court were to carry out an assessment of the Plaintiff’s chances in a putative trial of HC/S 930, based on the available evidence, I would be unable to find that the Plaintiff had any real or substantial chance of success. Assuming that Clause 12 gave the Plaintiff an option to renew the licence for the ION Stall, there is scant evidence to show that the Plaintiff gave the requisite notice to Food Republic that was required under that provision (see paragraphs 80 to 83 above).

133    Separately, there were again suggestions by the Plaintiff’s counsel that so long as the Plaintiff can demonstrate that the making of the Clause 12 Argument would have allowed it to avoid the striking out of its action in HC/S 930, the requirement to demonstrate causation would be satisfied, because the Plaintiff would have lost the chance to pursue its case in HC/S 930 to trial.

134    This appears, for instance, in paragraph 38 of the Plaintiff’s Closing Submissions and paragraph 35 of the Plaintiff’s Reply Submissions.

135    The same reasoning underlies the Plaintiff’s counsels’ assertions, made in the Plaintiff’s Further Written Submissions dated 15 August 2024, that the “converse of striking out is a real and substantial chance of arguing the claims”.[note: 44]

136    I do not agree with this argument.

137    It is not sufficient for the Plaintiff to show the loss of merely any chance, such as a chance for the Plaintiff to argue its claims, without regard to the merits of such claims.

138    The authorities are clear that what the Plaintiff must show it has lost, by reason of some breach on the part of the Defendant, is a “real and substantial” chance.

139    In submitting that the loss of a chance to avoid having the Food Republic Proceedings struck out was itself sufficient to demonstrate causation for the purposes of the Plaintiff’s action against the Defendant herein, the Plaintiff has erroneously ignored the merits of its claim against Food Republic, which was one (if not the) key determinant of whether what was lost, by the Defendant’s actions, was real and substantial or not.

140    For the above reasons, I am not satisfied that the Defendant’s failure to raise the Clause 12 Argument caused loss to the Plaintiff.

The Mistake Argument

141    Independently of the Defendant’s failure to raise the Clause 12 Argument, the Plaintiff’s counsel in these proceedings have also submitted that a reasonable solicitor would have advanced, in the Food Republic Proceedings, the Mistake Argument.

142    As framed by the Plaintiff’s counsel, a “reasonable solicitor would be aware that claims that hinge on a mistake will, in all likelihood, not be struck out”[note: 45] and that pleading mistake could “possibly entitle the mistaken party to equitable rectification of an agreement”.[note: 46]

Breach of Duty

143    In Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502 (“Digilandmall”), the Court of Appeal first recognised that

the law will declare void a contract which was purportedly entered into where the non-mistaken party was actually aware of the mistake made by the mistaken party.[note: 47]

(Emphasis added)

144    The Court of appeal then went on, in Digilandmall at [80], to say that where the non-mistaken party did not have actual knowledge of the mistake but had constructive knowledge coupled with an “additional element of impropriety”, the court could also grant relief in the exercise of its equitable (as opposed to common law) jurisdiction.

145    I am unable to agree with the Plaintiff’s counsel that only a solicitor who was not reasonably competent could have failed to appreciate and raise the Mistake Argument in the Food Republic Proceedings.

146    I have already referred to Ang J’s reminder, in Sports Connection, that not every error of judgment would amount to negligence, and to Prakash J’s comment, in Goh Teh Lee, that a defendant lawyer’s conduct must be assessed in light of the circumstances existing during the relevant period and not on hindsight.

147    The primary difficulty with the Plaintiff’s argument under consideration is that whilst there may have been evidence that Wang and Elsie were labouring under a mistake as to their entitlement to operate the ION Stall for six years, there is no credible evidence, either in the Food Republic Proceedings or the present suit, to suggest that Food Republic was or ought to have been aware that Wang and Elsie were labouring under such a mistake.

148    Indeed, the Plaintiff’s counsel themselves have not identified, in the Plaintiff’s Closing Submissions or Reply Submissions, any specific evidence which was available to the Defendant herein, during the period when he was engaged by the Plaintiff, that could have formed the basis for raising the Mistake Argument in HC/S 930.

149    It follows that there is no basis for this Court to find that the Defendant had failed to appreciate or consider the significance of some evidence or information available to him, such that his failure to raise the Mistake Argument in the Food Republic Proceedings caused him to fall below the standard of a reasonably competent lawyer.

150    The Plaintiff’s counsel have sought to argue, in the Plaintiff’s Further Written Submissions dated 15 August 2024, that “the fact that it did not cross the mind of a solicitor to run a credible argument, whether or not ultimately successful, is arguably negligent”.[note: 48]

151    With respect, this assertion is neither here nor there, for the Court here is not concerned with whether the Defendant’s conduct was only “arguably” negligent but whether his conduct failed to meet the standard expected of any reasonably competent lawyer.

152    I also think it is relevant that this allegation of a failure by the Defendant to make the Mistake Argument was not even one which was raised by the Plaintiff’s present counsel themselves in their early correspondence with the Defendant.

153    Specifically, in their letters sent on behalf of the Plaintiff to the Defendant herein dated 14 December 2020[note: 49] and 12 January 2021[note: 50], there was no mention at all of a failure to raise the Mistake Argument.

154    The original Statement of Claim filed in these proceedings on 5 July 2021 also did not contain any allegation that the Defendant had breached his duty to the Plaintiff by reason of a failure to raise, in the Food Republic Proceedings, the Mistake Argument.

155    The allegation of negligence coming in the form of a failure to raise the Mistake Argument appeared, for the first time, in the Plaintiff’s Statement of Claim (Amendment No.2) filed on 19 August 2022, more than one year after this suit had been commenced.

156    I turn now to the submission that the Plaintiff could have sought the remedy of equitable rectification if only the Mistake Argument had been raised in HC/S 930.

157    Having regard to the decision in Yap Son On v Ding Pei Zhen [2017] 1 SLR 219, equitable rectification for a unilateral mistake would require, inter alia, the non-mistaken party to know of the mistaken party’s mistaken belief and yet do nothing to correct that mistaken belief.[note: 51]

158    In this regard, as I have already mentioned, there is no credible evidence of Food Republic’s knowledge of the Plaintiff’s supposedly mistaken belief.

159    For the above reasons, I find that the Defendant did not fall below the standard of a reasonably competent lawyer in failing to raise the Mistake Argument in HC/S 930.

Causation

160    In its Closing and Reply Submissions, the Plaintiff did not put forward any assessment of its chances of succeeding in making out the Mistake Argument, or of obtaining the equitable rectification which it says could have been a remedy to which it was entitled in consequence of successfully making such an argument.

161    I am of the view that the Plaintiff has not demonstrated the loss of any real or substantial chance stemming from the Defendant’s failure to raise the Mistake Argument in the Food Republic Proceedings. As I have commented above, there is insufficient evidence to support the Mistake Argument in the first place.

162    The Plaintiff’s counsel have, in order to illustrate how the Plaintiff was allegedly disadvantaged by the Defendant’s failure to raise the Mistake Argument, made reference to cases which show that if only such an argument had been raised, the Plaintiff’s claim in HC/S 930 would not have been struck out, but without then going further to submit on what its chance of succeeding on the Mistake Argument would have been in a trial of HC/S 930.

163    I would state again that such an argument is inchoate, for the purpose of establishing a claim premised in negligence, because the avoidance of having HC/S 930 struck out was not itself a valuable remedy, but at best, an opportunity for the Plaintiff to have recourse to another, separate opportunity, to obtain substantive relief from the Court in the Food Republic Proceedings.

164    As such, even if I am mistaken on the question of whether the Defendant’s conduct herein had fallen below the standards required of a reasonably competent lawyer, I am of the view that the Plaintiff has not demonstrated that such conduct occasioned any compensable loss to the Defendant.

Loss of opportunity to settle HC/S 930

165    Apart from submitting that the Defendant’s failures to raise the Clause 12 Argument and the Mistake Argument cost the Plaintiff the chance of obtaining a substantial remedy in court proceedings against Food Republic in HC/S 930, the Plaintiff’s counsel also argued that the striking out of the Plaintiff’s action in HC/S 930 caused it to lose a real and substantial chance of obtaining a favourable out-of-court settlement from Food Republic.[note: 52]

166    The Plaintiff suggested that there was a real and substantial chance that Food Republic would have pursued an out-of-court settlement if only the matter had not been struck out, partly because of the costs which Food Republic would have incurred in having that matter tried and partly because, according to the Plaintiff’s counsel, the Plaintiff “had a strong case that Clause 12 obliged Food Republic to grant a further licence period”.[note: 53]

167    I have already expressed my views on the shortcomings of an argument premised on Clause 12.

168    In particular, as previously mentioned, none of the witnesses associated with Food Republic who gave evidence at the trial before me provided any testimony that lent meaningful support to the Plaintiff’s case against Food Republic.

169    That being the case, it is unrealistic to imagine that the evidence of the aforementioned persons would have been any more favourable to the Plaintiff if Food Republic were a party to the proceedings (for instance, in a trial of HC/S 930), or that they would have provided information to Food Republic which would have made the latter more inclined to enter into a settlement with the Plaintiff.

170    As for the argument that Food Republic would have been deterred from pursuing a trial because of the costs of doing so and the perceived strength of a case premised on the Clause 12 Argument or the Mistake Argument, that is also pure speculation on the part of the Plaintiff’s counsel.

171    As such, I do not accept that the Defendant’s failure to raise the Clause 12 Argument or the Mistake Argument in HC/S 930 occasioned the loss of a real and substantial opportunity to settle the matter out-of-court.

Decision

172    In view of my findings above, the Plaintiff’s action against the Defendant herein is dismissed in its entirety.

173    The costs and disbursements of this action are to be fixed by this Court if the parties are unable to agree on the same. The parties are to file and exchange their respective written submissions on costs and disbursements within 14 days hereof, limited to 10 pages, if required. ​

[note: 1]Statement of Claim filed in HC/S 930 at paragraphs 16 to 19.

[note: 2]RA 320 GD at [12].

[note: 3]RA 320 GD at [20].

[note: 4]RA 320 GD at [28].

[note: 5]Plaintiff’s Closing Submissions dated 22 December 2023 (“PCS”) at page 23.

[note: 6]Plaintiff’s Reply Submissions (“PRS”) dated 22 February 2024 at paragraph 32.

[note: 7]Wang’s AEIC at paragraph 6.

[note: 8]Wang’s AEIC at paragraph 17.

[note: 9]Wang’s AEIC at paragraph 10.

[note: 10]RA 320 GD at [14].

[note: 11]Wang’s AEIC at page 33.

[note: 12]NE 17 August 2023 28/16-22.

[note: 13]Bundle of AEICs Volume 1 (“1BA”) at 95.

[note: 14]1BA109.

[note: 15]1BA175.

[note: 16]Wang’s AEIC at paragraph 70.

[note: 17]Paragraph 26 of the PCS.

[note: 18]Paragraph 27 of the PCS.

[note: 19]Paragraph 13 of the Defence (Amendment No.2) read with paragraph 28.8 of the Statement of Claim (Amendment No.2).

[note: 20]PCS at paragraph 15.

[note: 21]PCS at paragraph 23.

[note: 22]Wang’s AEIC paragraph 79.

[note: 23]Wang’s AEIC at paragraph 50.

[note: 24]1BA 172.

[note: 25]1BA 173.

[note: 26]Agreed Bundle of Documents volume 3 at 1199.

[note: 27]NE 16 August 2023 53/4-10.

[note: 28]1BA 113.

[note: 29]Wang’s AEIC at paragraph 55.

[note: 30]NE 17 August 2023 78/29-79/23.

[note: 31]Wang’s AEIC at paragraph 57.

[note: 32]NE 13 October 2023 45/15-24.

[note: 33]NE 13 October 2023 45/25-46/6.

[note: 34]Wang’s AEIC at paragraph 49.

[note: 35]Paragraph 53 above.

[note: 36]PCS at paragraphs 4 and 23.

[note: 37]PCS at paragraph 15.

[note: 38]Paragraph 40 of the PCS.

[note: 39]Agreed Bundle of Documents volume 1 at 440.

[note: 40]PCS at paragraph 51.

[note: 41]PCS at paragraphs 54 and 59.

[note: 42]PCS at paragraph 75.

[note: 43]PCS at paragraph 80.

[note: 44]Plaintiff’s Further Written Submissions dated 15 August 2024 (“PFS”) at paragraph 14.

[note: 45]PCS at paragraph 34.

[note: 46]PCS at paragraph 35.

[note: 47]Digilandmall at [37].

[note: 48]PFS at paragraph 31.

[note: 49]1BA206.

[note: 50]1BA210.

[note: 51]Yap Son On at [65].

[note: 52]PCS at paragraph 109.

[note: 53]PCS at paragraphs 113 and 114.

"},{"tags":["Criminal Law – Offences – Criminal breach of trust by employee","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-02","court":"District Court","case-number":"DAC 916394-2021, Magistrate's Appeal No. 9228-2023-01","title":"Public Prosecutor v Lee Wee Yen","citation":"[2024] SGDC 225","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32169-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor","Ragbir Singh Bajwa (Bajwa & Co) for the Accused."],"timestamp":"2024-09-23T16:00:00Z[GMT]","coram":"Kamala Ponnampalam","html":"Public Prosecutor v Lee Wee Yen

Public Prosecutor v Lee Wee Yen
[2024] SGDC 225

Case Number:DAC 916394-2021, Magistrate's Appeal No. 9228-2023-01
Decision Date:02 September 2024
Tribunal/Court:District Court
Coram: Kamala Ponnampalam
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor; Ragbir Singh Bajwa (Bajwa & Co) for the Accused.
Parties: Public Prosecutor — Lee Wee Yen

Criminal Law – Offences – Criminal breach of trust by employee

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9228/2023/01.]

2 September 2024

District Judge Kamala Ponnampalam:

Introduction

1       The accused person, Mr Lee Wee Yen, (“the Accused”) claimed trial to one charge under section 44(1)(a) and punishable under section 44(5)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) (“CDSA”) (“the offence”). For ease of reference, the charge is reproduced below:

You…are charged that you, sometime between the 25th to the 31st day of January 2020, in Singapore, did enter into an arrangement with one Gee Ming Li Jaromel (“Jaromel”), to wit, by using your Industrial and Commercial Bank of China (ICBC) bank account (no. [xxx]) (“ICBC account”) to receive and transfer out RMB 1,518,000 (approximately SGD $300,000) on behalf of Jaromel between 30th January 2020 and 31st January 2020, having reasonable grounds to believe that by the said arrangement, the retention by Jaromel of his benefits from criminal conduct would be facilitated, and having reasonable grounds to believe that Jaromel had engaged in criminal conduct, to wit, offences of cheating under section 420 of the Penal Code (Cap 224), and you have thereby committed an offence under section 44(1)(a) and punishable under section 44(5)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A).

2       At the conclusion of the trial, I was satisfied that the Prosecution had proven its case against the Accused beyond a reasonable doubt. I found the Accused guilty and convicted him on the charge. He was sentenced to 27 months’ imprisonment. The Accused being dissatisfied with the outcome, has appealed against the conviction and the sentence.

Background facts

3       The Accused is a Singapore citizen, aged 43 years, who works as a regional operations manager for Aivo Asia. He is also known as Vince. The Accused was the account holder of an International Commercial Bank of China (“ICBC”) bank account bearing the number [xxx]. This account was solely owned and operated by the Accused (“the Accused’s ICBC account”).[note: 1]

4       Sometime in January 2020, Gee Ming Li Jaromel (“Jaromel”) and Kato Hitoshi (“Kato”) conspired to deceive one Dominic Chen Jiajie (“Dominic”) into transferring the equivalent of SGD$300,000 in Renminbi into the Accused’s ICBC account. Their plan was to find a Bitcoin buyer in Singapore and for Kato to pose as a Bitcoin seller. The transaction amount was to be set at SGD$300,000. When the Bitcoin buyer produces the cash amount of SGD$300,000 for the purchase of the Bitcoins, they would deceive Dominic into believing that they were performing a genuine Bitcoin transaction, when in fact Kato had no Bitcoins for sale. They would then request Dominic to transfer the equivalent of SGD$300,000 in Renminbi into the Accused’s ICBC account in return for the cash amount of SGD$300,000 by saying that the Bitcoin owner resides in China and needs to be paid in Renminbi. However, once the money was transferred into the Accused’s ICBC account, Kato would claim that the money had not been received, and Jaromel and Kato would then make a hasty exit. Thereafter, Jaromel and Kato would take the Renminbi which was received into the Accused’s ICBC account and split it equally between the two of them.[note: 2]

5       As planned, sometime between 25th to 30th January 2020, Jaromel approached the Accused and requested for the use of his ICBC account to receive the Renminbi and thereafter for the Accused to transfer out the Renminbi. The Accused was told that these were monies involved in a Bitcoin transaction.[note: 3] The Accused agreed and provided his ICBC account number in the WhatsApp chatgroup which he shared with Jaromel and Kato.

6       On 30 January 2020, sometime in the afternoon, Jaromel and Kato arrived at an office unit located at 1 Commonwealth Lane, #04-20, One Commonwealth, Singapore. There, they met the Bitcoin buyer who showed them the cash amount of SGD$300,000 which was to be used for the purchase of the Bitcoins.[note: 4] The Bitcoin buyer placed the cash on the table. Dominic too arrived at the location and saw the cash on the table. When Kato confirmed to Dominic that the Bitcoin transaction would proceed, Dominic instructed his counterparts in China to transfer RMB 1,518,000 (equivalent to approximately SGD$300,000) to the Accused’s ICBC bank account. The bank account number was given to Dominic by Kato.[note: 5]

7       After the money was transferred into the Accused’s ICBC account, Kato left the office unit and did not perform any Bitcoin transfer. The Bitcoin buyer did not allow Dominic to take the SGD$300,000 which was on the table. A heated argument ensued and the police was summoned. Jaromel was arrested a few hours later. Kato too was arrested on the same day.[note: 6]

8       Prior to his arrest, Jaromel had called the Accused on the phone and told the Accused that the monies had been transferred into the Accused’s ICBC account. The Accused logged into his ICBC bank and saw that a total of RMB 1,518,000 had been transferred into his bank account from four different accounts. The Accused became worried that his ICBC bank account would be frozen and told Jaromel to take back the money.[note: 7] Jaromel offered to split the money with the Accused in an attempt to get the Accused to cooperate. Thereafter, Jaromel was arrested and the Accused was unable to contact him.

9       Subsequently, one Lao Ying contacted the Accused via WeChat and instructed the Accused to transfer the monies into three different bank accounts. Pursuant to the instructions which he received from Lao Ying, between 30th to 31st January 2020, the Accused made six outgoing transfers from his ICBC account amounting to RMB 1,518,000.[note: 8] The six outgoing transfers were made to three separate accounts[note: 9] which were different from the four accounts from which the monies were received[note: 10]. The Accused was subsequently arrested by the police on 8 February 2020.

10     Jaromel and Kato were each charged with the offence of cheating in furtherance of their common intention under section 420 read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“the cheating offence”). Kato pleaded guilty to the charge and was sentenced to 40 months’ imprisonment. Jaromel faced other charges to which he pleaded guilty. The cheating offence was taken into consideration for purposes of sentencing. He was sentenced to a total of 66 months’ and 2 days’ imprisonment.

The Prosecution’s Case

11     The Prosecution’s case was that the sum of RMB 1,518,000 received into the Accused’s ICBC account represented the benefits of Jaromel’s criminal conduct, which was the cheating offence perpetrated against Dominic. When the Accused agreed to receive these monies into his ICBC account and then to transfer out the same, he had facilitated Jaromel’s retention of the benefits of his criminal conduct. The Accused had done so having reasonable grounds to believe that Jaromel was engaged in criminal conduct and that the monies to be received into his ICBC account constituted Jaromel’s benefits from this criminal conduct. The offence was completed when the Accused transferred out the entire sum from his account into three different accounts as instructed by a person known to him only as Lao Ying.

12     The Prosecution led evidence from the three persons involved in the cheating offence – Kato, Jaromel, and Dominic. They also adduced in evidence the three statements recorded from the Accused during police investigations as well as the transaction records of the monies transferred into and out of the Accused’s ICBC account .

The Defence’s Case

13     The Defence denied any involvement by the Accused in the cheating offence. It was asserted that the Accused was not aware of Jaromel’s and Kato’s plan to deceive Dominic into transferring the Renminbi into the Accused’s ICBC account. The Accused had given his ICBC bank account number to Jaromel in good faith and never suspected that Jaromel would use the account to receive the benefits of his criminal conduct. Jaromel was a friend whom he trusted and the Accused had no reason to believe that by receiving and transferring the monies into and out of his ICBC account, he would be facilitating Jaromel’s retention of his ill-gotten gains. The Accused was the sole witness for the Defence.

The applicable law

14     The relevant statutory provision reads as follows:

Assisting another to retain benefits from criminal conduct

44.—(1)  Subject to subsection (3), a person who enters into or is otherwise concerned in an arrangement, knowing or having reasonable grounds to believe that, by the arrangement —

(a)      the retention or control by or on behalf of another (referred to in this section as that other person) of that other person’s benefits from criminal conduct is facilitated (whether by concealment, removal from jurisdiction, transfer to nominees or otherwise); or

(b)     that other person’s benefits from criminal conduct —

(i)     are used to secure funds that are placed at that other person’s disposal, directly or indirectly; or

(ii)    are used for that other person’s benefit to acquire property by way of investment or otherwise,

and knowing or having reasonable grounds to believe that that other person is a person who engages in or has engaged in criminal conduct or has benefited from criminal conduct shall be guilty of an offence.

(2)     In this section, references to any person’s benefits from criminal conduct include a reference to any property which, in whole or in part, directly or indirectly, represented in his hands his benefits from criminal conduct.

(3)     Where a person discloses to an authorised officer his knowledge or belief that any property, funds or investments are derived from or used in connection with criminal conduct or any matter on which such knowledge or belief is based —

(a)     if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he shall not be guilty of an offence under this section if the disclosure is made in accordance with this paragraph, that is —

(i)     it is made before he does the act concerned, being an act done with the consent of the authorised officer; or

(ii)    it is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it;

(b)     the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by law, contract or rules of professional conduct; and

(c)     he shall not be liable in damages for any loss arising out of —

(i)     the disclosure; or

(ii)    any act done or omitted to be done in relation to the property, funds or investments in consequence of the disclosure.

(4)     In any proceedings against a person for an offence under this section, it is a defence to prove —

(a)     that he did not know and had no reasonable ground to believe that the arrangement related to any person’s proceeds derived from criminal conduct;

(b)     that he did not know and had no reasonable ground to believe that, by the arrangement, the retention or control by or on behalf of the relevant person of any property was facilitated or, as the case may be, that, by the arrangement, any property was used as mentioned in subsection (1);

(c)     that —

(i)     he intended to disclose to an authorised officer such knowledge, belief or matter as is mentioned in subsection (3) in relation to the arrangement; and

(ii)    there is reasonable excuse for his failure to make disclosure in accordance with subsection (3)(a);

(d)     that, in the case of a person who was in employment at the time in question and he enters or is otherwise concerned in the arrangement in the course of his employment, he disclosed the knowledge, belief or matter as is mentioned in subsection (3) to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.

(5)     Any person who commits an offence under this section shall be liable on conviction —

(a)      if the person is an individual, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or to both; or

(b)     if the person is not an individual, to a fine not exceeding $1 million or twice the value of the benefits from criminal conduct in respect of which the offence was committed, whichever is higher.

[Act 51 of 2018 wef 01/04/2019]

[applicable subsections in bold]

15     It was agreed between parties that the elements required to be established under this provision are set out in the High Court case of Ang Jeanette v PP [2011] 4 SLR 1. The Court held at [49] that to make out an offence under section 44(1)(a), the Prosecution must prove as part of the actus reus the following:

a)     the accused has entered or is otherwise concerned in an arrangement;

b)     which (i) facilitates the retention or control by or on behalf of another (“that other person”) of (ii) that other person’s benefits of criminal conduct; and

c)     that other person is a person who engages in or has engaged in criminal conduct or has benefited from criminal conduct.

16     The Court further held at [56] that the Prosecution has to show that there was some criminal conduct from which the moneys were derived. If the conduct occurred in Singapore, it has to constitute an offence listed under the Second Schedule in order to come within the meaning of “criminal conduct”.

17     As for the mens rea element of having reasonable grounds to believe, the Court at [70] adopted the meaning ascribed to the phrase in Ong Yew Beng v PP [2003] 1 SLR(R) 536 that having “reason to believe” involved a “lesser degree of conviction than certainty but a higher one than speculation”. In applying the test, the court must assume the position of the actual individual involved (ie, including his knowledge and experience), but must reason (ie, infer from the facts known to such individual) from that position like an objective reasonable man.

18     On the issue of proof of “criminal conduct”, the Court had elaborated at [58] that circumstances could well arise where the only logical inference to any reasonable person is that the moneys involved in the arrangement are criminal property, and that the other person engages in, or has engaged in, or has benefited from, criminal conduct.

19     The Court in Ang Jeanette v PP concluded at [71] that the offender in that case clearly had reasonable grounds to believe that the moneys she was dealing with were the benefits of criminal conduct. The circumstances under which she received the money and her instructions were highly suspicious. Her unwillingness to remit any more money after her last assignment clearly indicated that she thought that she was aiding in the retention of what she reasonably believed were benefits of criminal conduct.

Issues to be determined

20     The key issues to be determined at this trial are as follows:

a)     whether the Accused had entered into an arrangement with Jaromel to receive and transfer out Renminbi from his ICBC account;

b)     whether Jaromel had engaged in criminal conduct;

c)     if Jaromel had engaged in criminal conduct, whether the arrangement with the Accused had facilitated the retention or control by Jaromel of Jaromel’s benefits of his criminal conduct; and

d)     when the Accused entered into the arrangement with Jaromel, whether the Accused had reasonable grounds to believe that Jaromel had engaged in criminal conduct and that the Renminbi were the benefits of his criminal conduct.

21     The first three issues deal with the actus reus of the offence while the last issue concerns the mens rea requirement for the offence.

The actus reus is undisputed

22     The Accused does not deny that he had an agreement with Jaromel pursuant to which he received and transferred out Renminbi through his ICBC account. Sometime between 25th and 30th January 2020, Jaromel had approached him and asked him for the use of his ICBC account. The Accused readily agreed and furnished his account details to Jaromel. On 30 January 2020, the Accused received a total of RMB $1,518,000 into his ICBC account. Hours later, on the same day and in the early hours of the following day, the Accused transferred out the entire sum. The transaction records, Exhibits P2, P3, and P4, show that monies were received from four separate accounts into the Accused’s ICBC account and were later transferred out into three different accounts.

23     Jaromel does not dispute that the sum of RMB 1,518,000 channelled through the Accused’s ICBC account constituted his benefits from criminal conduct. Jaromel admitted that together with Kato, they had deceived Dominic into believing that they were involved in a genuine Bitcoin transaction and that they would receive the cash amount of S$300,000 produced by the Bitcoin buyer which would be given to Dominic in exchange for Renminbi. By such manner of deception, Jaromel had dishonestly induced Dominic to transfer RMB 1,518,000 into the Accused’s ICBC account.

24     The RMB 1,518,000 which went through the Accused’s ICBC account constituted Jaromel’s benefits from the cheating offence which is listed as a “serious offence” under the Second Schedule to the CDSA and therefore satisfies the statutory definition of “criminal conduct” under the CDSA. The Accused had through his arrangement with Jaromel, facilitated Jaromel’s retention and control of the benefits of Jaromel’s criminal conduct.

The Accused had the requisite men rea

25     The mens rea element specified in the charge is “having reasonable grounds to believe”. The Court in Ang Jeanette v PP defined this element as the “lesser degree of conviction than certainty but a higher one than speculation”. The Court elaborated that in assessing whether the Accused possessed the requisite mens rea, the court needs to assume the position of the actual individual involved (ie, including his knowledge and experience), but must reason (ie, infer from the facts known to such individual) from that position like an objective reasonable man. Applying this test, the Court in Ang Jeanette v PP held that the offender in that case clearly would have found the circumstances of the transaction highly suspicious and would have had reasonable grounds to believe that the moneys she was dealing with were the benefits of criminal conduct.

26     The evidence in the present case similarly pointed to highly suspicious circumstances which would have given the Accused reasonable grounds to believe that Jaromel was engaged in criminal conduct and the monies to be received into his ICBC account were derived from Jaromel’s criminal conduct.

The suspicious circumstances

27     The Accused had past work experience in different areas of business. He had worked as a night club operator. He had set up an F&B business venture with Jaromel. The business venture known as Epic F&B failed and resulted in a police report being lodged against him. The Accused had also opened and operated his China bank account, ie the ICBC account, to carry out business with people in China.[note: 11] In short, the Accused was a seasoned businessman and not a naïve or gullible individual inexperienced in the ways of business and commerce. He would be familiar with how a transaction in foreign currency would typically be conducted.

28     In the present case, there were several red flags which should have indicated to the Accused that the request from Jaromel was not only unusual but downright suspicious and warranted caution and further enquiry. It was not how a normal foreign currency transaction would be carried out. The Accused ignored all the warning signs.

Jaromel’s request to use the ICBC account was suspicious on several levels

29     Sometime between 25th and 30th January 2020, Jaromel met the Accused and asked for the use of his ICBC account to receive and transfer out Renminbi. Jaromel made some vague and passing reference to a Bitcoin deal but provided no details.[note: 12] Neither did he specify the amount of money to be channelled through the account beyond stating that it would be ji wan in Chinese, meaning a few tens of thousands of Singapore dollars.[note: 13] This lack of details should immediately have caused the Accused to be wary. He had acknowledged during cross-examination, that Bitcoin was a cross-border currency and the source of funds for a Bitcoin transaction could potentially be ‘dirty’.[note: 14] Such awareness ought to have prompted the Accused to enquire further, but he did not. He immediately agreed to Jaromel’s request.[note: 15] His reason was that Jaromel was a friend whom he trusted.[note: 16]

30     I agreed with the Prosecution that an unsolicited request to “lend” your bank account to receive and transfer out funds, regardless of the purpose, would objectively be suspicious to any reasonable person.[note: 17] It begs the question of why the monies could not be converted into Singapore dollars before they were remitted to Jaromel or, why Jaromel could not have opened his own foreign currency account/Renminbi bank account to receive the monies. These would have been the logical ways to receive funds from a legitimate business transaction. Not the circuitous route proposed by Jaromel to funnel the funds into an account belonging to a person who was unrelated to the transaction. These were clearly suspicious circumstances which should have alerted the Accused.

31     It is baffling why the Accused readily agreed to Jaromel’s request without enquiring further. This was the first time that Jaromel had made such a request.[note: 18] There was no similar prior request or transaction for the Accused to reference or rely on. If there had been a similar previous arrangement with Jaromel which had been concluded without incident, the Accused could then cite that as a basis for his unquestioning trust, but there was none. A reasonable man in similar circumstances would minimally have asked Jaromel: 1) who was sending the money, 2) where was the money coming from, 3) how much was to be received into the account, and 4) how and when should the monies be transferred out. The Accused’s stock answer for why he made no enquiries was that Jaromel was a friend and he trusted him.

32     It was also the Accused’s testimony that his ICBC account was obtained with much difficulty and he was careful not to do anything to jeopardize the account as it was important to him.[note: 19] Yet he willingly provided his account to Jaromel without verifying how exactly his account would be used.

33     When Jaromel asked to use his ICBC account, he had mentioned that the amount involved was a few tens of thousands of Singapore dollars without specifying the exact amount. The Accused initially claimed that he took this to mean anything less than SGD $50,000 but later conceded that “a few tens of thousands of Singapore dollars” could be as much as SGD$100,000 which is equivalent to about RMB 500,000, an amount which had shocked him when he found it deposited into his account. He became afraid that his account would be frozen. Given his concern for his ICBC account, it bears repeating that it is puzzling why the Accused agreed to Jaromel’s request without first enquiring and verifying the exact amount of Renminbi to be received into the ICBC account.

34     The only conclusion to be drawn is that the Accused chose to be wilfully blind to the suspicious nature of the transaction. There were clear signs which cast doubts on the legitimacy of Jaromel’s Bitcoin transaction. The deliberately vague request from Jaromel devoid of details was a clear red flag. The only reasonable response in this situation would be to enquire further and get more details, something which the Accused omitted to do.

The Accused’s problematic past experience with Jaromel

35     The Accused’s sole defence was that he trusted Jaromel. He maintained that Jaromel was a good friend whom he trusted implicitly. Yet, this defence of blind faith was not stated in any of the three statements which were recorded from him in the course of investigations. These statements, Exhibits P5, P6, and P7, were admitted in evidence without any challenge to their accuracy and voluntariness.

36     In his second statement, P6, which was recorded on 30 April 2020, about three months after the transaction, the Accused was confronted with information obtained from Jaromel:

Q18:      Jaro informed Police that there was a plot between himself, Kato and yourself to cheat the money changer. What do you have to say?

A18:      No. I want to say that if I have the intention or if I really wanted to cheat people, I will not use my own bank account because it will trace to me.

37     Here, the Accused was quick to defend himself and assert that he had no intention to cheat. Earlier on in the same statement, the Accused was asked:

Q10:      Did you provide your bank account to other people other than Jaro?

A10:      No.

38     This question would have been the perfect opportunity for the Accused to state his defence of well-held trust in Jaromel, but he failed to do so. Clearly, this defence was an afterthought which had occurred to him long after the statements were recorded. It was something which he had conjured up to explain away his ready acceptance of Jaromel’s request.

39     The other plank of the Accused’s defence was that Jaromel was quite a reputable guy .. was a PAP member, .. accountant .. and his knowledge on business is quite respectful.[note: 20] This gave him further reason to trust Jaromel. Once again I accepted the Prosecution’s arguments that being a “reputable guy” and a “popular guy” does not in any way remedy the suspicious nature of Jaromel’s request. If anything, it invites more questions as to why a “reputable guy” would be making such a suspicious request. It is trite that being a grassroots member, an accountant or even someone with business experience is not an assurance that the individual would not engage in criminal activity.

40     Beyond these bare assertions, the Accused did not produce any evidence to show that Jaromel was indeed trustworthy. In fact, the converse appeared to be true. Apart from casual social interactions, the Accused’s only other interaction with Jaromel in the past was his failed business venture with him. This ended with the Accused being investigated by the police on suspicions of cheating. The Accused had declared in his first statement that Jaromel gave me a lot of problems. In his third statement recorded almost one and a half years later on 2 August 2021, when the Accused was asked about this claim, the Accused said that after he was investigated for cheating the company, he was not close to Jaromel anymore. The Accused said, I also do not want to join him in any other business that he approaches me. But I still on talking terms purely as a friend. This is in direct contrast to the Accused’s defence at the trial that he trusted Jaromel completely.

41     The Accused had gone through a difficult relationship with Jaromel. It had understandably made him cautious of any further business involvement with Jaromel. The objective reasonable man in the Accused’s shoes would have been slow to agree to any request from Jaromel which was remotely associated with a business transaction such as a Bitcoin deal. He would have made further enquiries to allay his concerns. The Accused however did the opposite. He ignored all signs which pointed to a dubious proposal and promptly acceded to Jaromel’s request. The Accused’s omission to make the enquiries to verify strongly suggests that he had wilfully ignored the signs indicating that Jaromel was engaged in criminal conduct and that the Renminbi represented the benefits of his criminal conduct.

Jaromel’s offer of money for the bank account

42     Jaromel testified that he had made a monetary offer to the Accused to entice him to allow the use of his ICBC account.[note: 21] The extract from Jaromel’s evidence-in-chief is reproduced below:[note: 22]

Q

And I’m not sure if I asked you this previously, but what did you---what, if anything, did you offer the accused for using his bank account? Did you offer him any commission or reward?

A

Yes, I did.

Q

What did you offer him?

A

I---I remember that---what was spoken was the---the---the majority of the share would go to Kato, and then the---the---remember whether was it $50,000, I told him that “I’ll give you $50,000 for just using your account. ”Yah.

Court:

You said “what was spoken”. What do you mean by “spoken”?

Witness:

I’m sorry, what I meant was the---this---what I told him was that I will give him $50,000 for using his bank account. That’s just to make things simple. Yes.

Q

And how did you communicate this to him, was it in person, or was it over the phone?

A

I can’t remember specific---specifically.

Q

Okay. Was this reward and commission offered to him before or after he agreed to lend you the bank account?

A

That would be before, yah, because I had to entice him to let me use his account, right? So, I told him I---suppose it’s before.

Q

And was Kato present when you made this offer to Vince?

A

Can’t recall.

Q

Okay. So, if I summarise, the arrangement was that majority of the share would go to Kato and you said you offered Vince $50,000 to use his bank account?

A

Yes, I did.



43     During cross-examination, Jaromel qualified that he couldn’t be certain whether he was earnest when he made such an offer or of the amount which he had offered.[note: 23]

Q

Alright. Now, I am going to ask you questions regarding this alleged payment, offer of $50,000 to Vince to entice him to open the account. I’m just going to ask you some questions there.

A

Go ahead.

Q

Is your memory a bit sketchy about what happened there?

A

Yah, I told---I---I mentioned before this that, you know, everything was done recklessly. So, this offer also was done in desperation, I would suppose.

Q

Now, there is---is there some thought as to whether you could have even made that offer, considering the fact that you have---you haven’t told him anything about any plan, or any amount of money, to that extent? You haven’t mentioned 300,000 to him, right?

A

No, I haven’t.

Q

So---

A

And I would suppose that---

Q

It doesn’t make sense---sorry, it doesn’t make sense to suddenly say “I offer you $50,000”, correct? And you are---

A

In---

Court:

Sorry. At which point did you offer him $50,000?

Singh:

Yes. Maybe I should---thank you, Your Honour.

Q

Maybe I should establish---there is some confusion about the $50,000, right---

Court:

No.

Q

---so at what point of time do you actually make this offer, if at all, or are you mistaken?

A

I could be mistaken, but I think I---I made this offer when I desperately needed an account. But, you know, when I made this offer, I don’t think Vince even believed it, this thing would---like, I would give him $50,000. You get what I mean? It’s just like, “Hey, can you give me your account and I will pay you $50,000?” We are at that level of closeness as friends, I would suppose he was just thinking that I was just jesting.

Q

Right, now, I’m still on this $50,000, right. Think carefully; could you be mistaken when you say that you actually had to entice him, given the fact that he trusted you and he was quite happy to lend you his bank account? Why would you even offer him anything? He was quite cooperative, he wanted to---

A

Yes, I agree. Perhaps it was just me being a loudmouth, I just, “Hey, I’m going to give you $50,000”. Yah.

Q

Perhaps you never said it, you are mistaken now. Is that a possibility?

A

As I mentioned, the---my memory is a bit sketchy. So, it might be a possibility.

Q

A possibility, right. In fact, when the learned DPP cross-examined you, the figure of 50,000 somehow came down to 5 or 10,000 as well, right?

A

As I mentioned, my memory is not 100% clear---

Q

Yes.

A

---so I would agree with what you just said.

Q

See, what it appears to me is this, correct me if I’m wrong. You may have had this intention of rewarding him 50,000 or 10,000 or 5,000, whatever the figure was, look, it was in your mind, but never communicated to him at the time when you asked him to give you the account. Is that possible? It was really in your mind. Because you did not know how much you were going to make.

A

I would agree with you. But I really can’t remember---can’t remember.

Q

Alright. So now your position on the 50,000, as an enticement, is something that you can’t really remember. Correct?

A

I would agree with you.

Q

Thank you.



44     Following re-examination by the Prosecution, the Defence posed more questions by way of cross-examination to Jaromel. Jaromel responded that he may have made the monetary offer to the Accused to persuade the Accused, but perhaps not in a serious way.[note: 24]

Q      Now, Mr Jaromel, I just---I just want to put it to you, because there is a lot of confusion about your evidence, but I want to put it to you that my instructions are that you did not entice my client with any monetary reward. You can agree or disagree. That’s my case. You did not offer him any money.

A      I need to say that even if I did, I wasn’t serious about it. It was something that I said in desperation. So I wouldn’t put it---I want to put it on record that it would be something that I might have said, I might not have said, but even if I said it, it wouldn’t be something serious, it would be like “Hey, please give me your bank account, I will give you $50,000, I really need your bank account”, and him being reluctant, I tried everything under the sun to ask him for his bank account. So yes, that---I---I would put it just---that would be my position, your Honour.

45     It is evident that Jaromel did not retract his initial testimony that he had made a monetary offer to the Accused because he had tried everything under the sun to ask him for his bank account. He simply clarified that it may have been something which he had said in jest. As pointed out by the Prosecution, Jaromel had no reason to lie. He never tried to implicate the Accused. If anything, he went to great lengths to absolve the Accused of any involvement in the plot to cheat Dominic.

46     The Accused on the other hand flip-flopped on whether Jaromel had made such an offer. During his evidence-in-chief, the Accused denied that Jaromel had offered him an incentive to provide his ICBC account.[note: 25] In cross-examination he merely said that he can’t recall if Jaromel had made such an offer.[note: 26] He no longer refuted the possibility of a monetary offer. In the final assessment, I was persuaded that there may have been some mention of a financial reward for the Accused’s ICBC account. It may not have been a serious offer. Such an offer for a personal favour would have made the already suspicious request from Jaromel even more suspect.

The shared WhatsApp chatgroup

47     There was a common WhatsApp chatgroup involving Kato, Jaromel and the Accused. This chatgroup was created “for the purpose”[note: 27] of corresponding about the transaction using the Accused’s ICBC account. The Accused had provided his ICBC bank account details on this chatgroup. The Accused further testified that Kato and Jaromel discussed their Bitcoin deal in this chatgroup.[note: 28] There was a suggestion that it was possible that the Accused may have received information about the cheating plot during the chatgroup discussions between Kato and Jaromel. However, this was mere speculation with no actual evidence of the fact. I therefore placed no weight on the evidence relating to the shared WhatsApp chatgroup and the possibility of the Accused deriving information relating to the cheating plot from the chatgroup.

The Prosecution witnesses were reliable

48     The prosecution witnesses were reliable and I accepted their evidence without reservation. Jaromel in particular, was keen to exonerate the Accused of any blame in the cheating offence. At the end of his testimony, Jaromel addressed the Court and pleaded for leniency on behalf of the Accused.[note: 29] That said, Jaromel did not exaggerate or embellish his evidence in order exculpate the Accused. If he did not know or could not recall, he stated as much. Likewise, Kato candidly admitted to his role in the cheating scam. He did not shift the blame to Jaromel or to the Accused. Similarly, Dominic gave a straightforward account which corroborated Kato’s and Jaromel’s evidence that he was dishonestly induced by the two of them to transfer RMB 1,518,000 into the Accused’s ICBC account. The Defence accepted the evidence of the prosecution witnesses without challenge. It was never the Defence’s position that the witnesses were untruthful or unreliable.

The Accused was an unreliable witness

49     By contrast, the Accused was an unreliable witness. His account was fraught with inconsistencies. It began with the statements recorded from him in the course of investigations.

50     The first statement, P5, was recorded on 8 February 2020, about a week after the Accused had transferred the monies out of his ICBC account. In this statement, the Accused stated that it was Kato who had requested for his ICBC account and not Jaromel. He had agreed to Kato’s request because he knew that Kato dealt with Bitcoins when he was in Taiwan. So, he thought that it was okay for Kato to use his account. The Accused claimed that he later became worried when he discovered that the amounts deposited into his ICBC account were large, but he did not think to report the matter to the police because he believed that Kato will not do anything illegal – Kato will tell A is A, B is B, meaning that Kato does not lie. This account that Kato had approached him for his ICBC account and his firm belief in Kato’s integrity were abandoned in the subsequent statements.

51     The second statement was recorded more than two months later on 30 April 2020. In this statement, the Accused claimed that it was Jaromel who had approached him and had requested for the use of his ICBC account for some Bitcoin business. When he was confronted with the previous statement, the Accused merely said, I confirmed Jaro is the one who approached me. He added that he was aware that both Kato and Jaromel were involved in a Bitcoin deal but it was Jaromel who contacted him. The Accused gave no clear reason for why he had named Kato in his first statement.

52     His attempts to explain away the discrepancy during his cross-examination by the DPP were not any more successful. The Accused testified that he was injured and lying in bed in hospital when the first statement was recorded from him.[note: 30] Kato was then at the forefront of his mind because someone had mentioned Bitcoin and then kept mentioning Kato’s name. That is why he used Kato’s name.[note: 31] The Accused’s reasons were plainly absurd. First, there was no evidence to support the Accused’s claim that someone kept mentioning Kato’s name. Second, the Accused’s explanation made no sense at all. The mere mention of Bitcoin and Kato’s name should not influence him to make a false statement. The question asked of him was a simple one – who approached you to use bank account [xxx]. What was the purpose to use this bank account? There is no reason why he could not have responded truthfully and given Jaromel’s name.

53     His injuries had not constrained him from accurately providing his personal particulars and the background facts. He could have similarly given an accurate account of who had approached him for his ICBC account. I accepted the Prosecution’s submission that the Accused had given Kato’s name in his first statement because he thought that it would make for a more convincing story given Kato’s prior history with Bitcoin deals. He sought to rely on Kato’s Bitcoin experience to justify his ready agreement to the request for his ICBC account.

54     Another example of the Accused’s inconsistent testimony was when he gave evidence in relation to Jaromel’s monetary offer for his ICBC bank account. During his evidence-in-chief, the Accused denied that Jaromel had offered him an incentive to provide his ICBC account. In cross-examination he changed his stance and said that he can’t recall if Jaromel had made such an offer.

55     The Accused also exhibited a tendency to embellish his evidence. When questioned about his transfer of the Renminbi to three separate bank accounts, the Accused initially claimed that his intention was to return the money to the rightful owner or the victim. After he was confronted with the transaction slips showing that the monies were not transferred to the accounts from which they were received but to a different set of bank accounts, the Accused conceded that his only intention was to get the money out of his ICBC account. He did not care who received the monies.[note: 32]

56     The Accused was evasive even when answering straightforward questions. When asked about whether Kato was involved, he did not give a direct answer, at times suggesting “not really” but eventually admitting that he “did not know” and “never asked him”. When asked about why Jaromel wanted a bank account in China to receive Renminbi, the accused claimed that there was “nothing to ask”, only to later admit that he “did not know” and “did not ask”.[note: 33]

57     On the whole, the Accused had shown himself to be an unreliable witness who was fast and loose with the truth. I treated his evidence with caution and placed little weight on it.

Conclusion on conviction

58     The evidence at this trial overwhelmingly pointed to the Accused’s guilty mind. He had a bad history with Jaromel. His previous business venture with Jaromel failed and resulted in the police investigating him for criminal offences. The Accused declared in his statements that he would not want to have any other business related dealings with Jaromel. Despite this, when Jaromel requested for his bank account, he agreed without hesitation. It was a bare request with no details beyond the fact that it was monies to be received from a Bitcoin deal. It was a request to use his ICBC account which according to the Accused was very important to him and he was careful not to do anything to compromise the account. It was a request from someone he no longer wished to have any business dealings with. Any reasonable man in the Accused’s position would have made enquiries and sought some verification before handing over his account details. The Accused did none of that.

59     At trial, the Accused proffered an improbable defence of well-held trust in Jaromel. It was a defence which was devoid of logic and did not stand up to scrutiny. It was at odds with his statements recorded during investigations. The Accused was unable to provide a satisfactory explanation for the inconsistencies. The only conclusion to be drawn from these circumstances was that the Accused was being untruthful. His defence of a bare trust in Jaromel was a fabricated afterthought invented to mask the fact that he had been wilfully blind to the clandestine nature of Jaromel’s request. The Accused had reasonable grounds to believe that Jaromel was engaged in criminal conduct and the monies to be received into his account were the benefits of that criminal conduct.

60     At the close of the trial, I was satisfied that the Prosecution had proven its case beyond a reasonable doubt. I found the Accused guilty and convicted him on the charge.

Sentence

Antecedents

61     The Accused was untraced for prior criminal convictions.

Prosecution’s submission on sentence

62     The Prosecution submitted that the dominant sentencing consideration for offences under section 44(1)(a) CDSA is general deterrence. They relied on the five-step sentencing framework in Huang Ying-Chun v PP [2019] 3 SLR 6062 (“Huang Ying-Chun”). Huang Ying-Chun dealt with section 44(1)(a) CDSA offences which involved the laundering of cash proceeds of cheating offences committed in Singapore. The offender in Huang Ying-Chun collected cash from victim-mules before handing the monies over to other runners, who would eventually carry the monies out of Singapore. In total, the offender collected and handed over a total of S$957,000 over two weeks. He was sentenced to 66 months’ imprisonment.

63     The five-step sentencing framework in Huang Ying-Chun was as follows:

a)     First, the court should identify the level of harm, and the level of culpability.

b)     Second, the court should identify the applicable indicative sentencing range.

c)     Third, the court should identify the appropriate starting point within the indicative sentencing range.

d)     Fourth, adjustments should be made to the starting point to take into account offender-specific factors.

e)     Fifth, further adjustments should be made to take into account the totality principle

64     The Prosecution argued that the principal factual elements identified in the Huang Ying-Chun framework were found in the present case:

a)     The laundering of cash or monies amounting to RMB 1,518,000,

b)     which cash and monies are the proceeds of the cheating offences committed in Singapore by Jaromel and Kato, and

c)     the involvement of a runner who collects cash in Singapore and dissipates the monies, for example, by remitting the monies or handing them to other persons to remove the monies from the jurisdiction. Here the Accused had used his ICBC account to dissipate the sum of RMB 1,518,000.

65     In assessing the harm and culpability for each offence, the High Court identified a few offence-specific and offender-specific factors:

Offence-specific factors

Factors going towards harm

(a) the amount cheated

(b) involvement of a syndicate

(c) involvement of a transnational

element

(d) the seriousness of the predicate

offence

(e) harm done to confidence in

public administration

Factors going towards culpability

(a) the degree of planning and

premeditation

(b) the level of sophistication

(c) the duration of offending

(d) the offender’s role

(e) abuse of position and breach of

trust

(f) the mental state of the offender

(g) whether commission of offence

was the offender’s sole purpose for

being in Singapore

(h) the offender’s knowledge of the

underlying predicate offence

(i) the prospect of a large reward

Offender-specific factors

Aggravating factors

(a) offences taken into consideration

for sentencing purposes

(b) relevant antecedents

(c) evident lack of remorse

Mitigating factors

(a) a guilty plea

(b) voluntary restitution

(c) cooperation with the authorities



66     The Prosecution submitted that the harm caused by the Accused’s offences must be pegged closer to the top of the moderate band in view of the significant amounts of criminal proceeds that were laundered through his bank accounts. The predicate offence of cheating under section 420 of the Penal Code (Cap 224) was a serious offence that attracts a maximum punishment of 10 years’ imprisonment. The Prosecution cited the following case precedent.

S/N

Case Name

Amount

Harm

1

PP v Ng Siew Wai Carole [2021] SGDC 1483 (“Carole Ng”)

S$27,600

Slight

S$72,050

Moderate

2

PP v Ng Koon Lay [2020] SGDC 1964 (“Ng Koon Lay”)

S$174,750

Moderate

3

PP v Chow Zhi Hong and anor [2020] SGDC 2795 (“Chow Zhi Hong”)

S$369,900

Moderate

4

PP v Cheng Peng-Yu [2019] SGDC 1216 (“Cheng Peng-Yu”)

S$803,000

Severe

5

Huang Ying-Chun

S$957,000

Severe



67     The Prosecution argued that the Accused’s culpability should be pegged at the lower end of the medium band for the following reasons:

a)     The importance of the Accused’s role: The Accused played a critical role in the dissipation of funds by offering his ICBC account for Jaromel’s use, failing which Jaromel would not have been able to retain his criminal proceeds.

b)     Transnational element: The Accused was aware that he was helping an individual based in Singapore, Jaromel, to facilitate a transaction based in China.

c)     The Accused’s mental state: The Accused admitted to having suspicions about the transactions he was performing. In fact, he admitted that he suspected that he was dealing with scam proceeds. Furthermore, despite the warning signs of Jaromel giving him the “barest minimum of details, or lack thereof” when requesting him to serve as a conduit to receive and transfer monies to accounts given by an unknown third party ‘Lao Ying’, he did not make any enquiries as any reasonable person would. By his own admission, he chose to remain wilfully blind to the circumstances.

d)     The prospect of personal gain: Jaromel made a monetary offer to the Accused to entice him to let him use the ICBC account. The evidence showed that an offer was made although whether a specific amount was offered was unclear (there were mentions of S$50,000, $10,000, and $5,000). In fact, it was Jaromel’s evidence that he “tried everything under the sun to ask him for his bank account” out of “desperation”. The inference is that there was a prospect of personal gain or reward that motivated the Accused to assist Jaromel with his ICBC account. It is undisputed that there is no evidence of the Accused actually receiving any monetary reward, and that the promised reward did not materialize. Nonetheless, the High Court in Huang Ying-Chun held that the fact that the offender did not ultimately receive his reward is not to be considered a mitigating factor warranting a reduction in sentence.

68     The Prosecution concluded that for offences falling within the moderate harm and medium culpability, the indicative sentencing range would be 30 to 60 months’ imprisonment. The indicative starting point is 30 to 40 months’ imprisonment. The indicative starting sentence will then have to be adjusted to take into account the offender-specific factors.

69     The Prosecution stated that there were no significant aggravating factors. The Accused was generally cooperative with the authorities during investigations save for the instance when he lied in his initial statement that it was Kato whom he trusted, only to later switch to Jaromel. The fact that the Accused had claimed trial and not taken responsibility for his criminal acts is a relevant consideration, even if not to be taken as an aggravating factor. Some credit may be afforded for his general cooperation with the investigations.

70     The Prosecution submitted that a sentence in the range of 27 to 30 months’ imprisonment is fair and appropriate. It is in line with the post Huang Ying-Chun reported case precedents.

S/N

Case Name

Antecedents

CT/PG

Amount

Sentence

1

Carole Ng

(Appeal dismissed)

Untraced

CT

S$27,600

4 months’ and 2 weeks’ imprisonment (concurrent)

S$72,050

9 months’ imprisonment (concurrent)

2

Ng Koon Lay

(Appeal dismissed)

Untraced

PG

S$47,050

6 months’ imprisonment (consecutive)

S$174,750

12 months’ imprisonment (consecutive)

3

Chow Zhi Hong

(Appeal dismissed)

Untraced

CT

S$369,900

45 months’ imprisonment (consecutive)



71     The Prosecution stated that the closest comparators by virtue of quantum are the cases of Ng Koon Lay and Chow Zhi Hong. The sentencing range of 27 to 30 months’ imprisonment was derived by applying an uplift to the sentence imposed in Ng Koon Lay (18 months’ imprisonment for S$221,800 collectively) given the higher quantum and the fact that the Accused was not entitled to any discount for a plea of guilt. The sentencing range of 27 to 30 months’ imprisonment was also derived by applying a downward adjustment from Chow Zhi Hong (45 months’ imprisonment for S$369,900) given the lower quantum and the absence of the offence-specific factors which were present in Chow Zhi Hong that warranted a higher indicative sentence).

Mitigation

72     The Mitigation Plea set out the Accused’s personal circumstances and pleaded for leniency stating that he had a clean record and was unlikely to reoffend. It was highlighted that the Accused did not ask for nor did he receive any financial incentive.

Defence’s submission on sentence

73     The Defence submitted for a sentence of a fine only and/or a short custodial sentence. It was argued that the harm was slight and the culpability was low. The Defence relied on the following factors.

74     The harm caused was low as it was not entirely clear what eventually happened to the sum of RMB 1,518,000 that was received in the Accused’s ICBC account. The evidence adduced showed that neither Kato nor Jaromel received the proceeds of the crime. Dominic, was unable to clarify what had eventually happened to the money. The loss was not borne by him either The monies may not have been dissipated but could have been returned to the original accounts as stated by Jaromel. As such, the harm is slight.

75     In terms of culpability, the Defence argued that it was low. The Accused was not offered any monetary reward for the use of his ICBC account. There was no syndicate involvement, no runner involved, no sophisticated planning, and no vulnerable victims involved. The duration of the offending was very short and there was no provable loss to anyone.

76     The Defence argued that this case was similar to the “love scam” cases as it involved an element of friendship and trust bordering on foolishness and vulnerability. There were no aggravating factors here, and the Accused had fully cooperated with the police. The Defence reiterated that the harm is slight and the culpability is low thereby falling into the category of a fine and /or a short custodian sentence.

The reply submission on sentence

77     The Prosecution highlighted that the Defence had pegged the harm as slight, primarily on the basis that there is no clear evidence of loss and thus giving rise to the possibility that the money was in fact returned to the rightful owner which is tantamount to making full restitution. The Prosecution argued that this is a mischaracterisation. In Huang Ying-Chun, the Court at [98] stated that the factor to be considered for harm is the amount cheated and not the specific loss being caused. So, it is not about proving the loss. In this case, evidence has been adduced to show that the sum of RMB 1,518,000 which is roughly equivalent to SGD 300,000 was cheated and thereafter dissipated through the ICBC account by the Accused. The Prosecution submitted that while it is correct to say that harm is not exclusively about the amount cheated, it does remain an important factor.

78     In the same vein, the evidence adduced cannot be stretched to mean that restitution has been made. While Dominic testified he did not personally bear the loss but that it was his Chinese counterpart that he was working with who did so, it does not mean that the monies should be taken as having been returned to the original owner or that restitution has been made. There was no evidence of this. The onus is on the Defence to prove on a balance of probabilities that restitution was attempted or made.

79     The Prosecution further argued that the fact that the funds were not recovered or allocated to a particular person precisely proves the point that there was loss and there was dissipation. If there was evidence that the money was recovered or it had gone to a certain party, that would be the basis to then assert that there was some kind of tracing and possibly even restitution. The lack of tracing actually is in fact evidence that there was dissipation and by extension, that would be the loss or the amount cheated that has to be considered by the Court for the CDSA offence.

80     The Prosecution disagreed that the form of culpability in the present case was similar to the genus of cases that relate to love scams. In those cases, there was some element of entrapment, exploitation, and cultivation of trust that was subsequently abused. That was not the case here. Entrapment and exploitation of trust was not present in this case. It was an active and voluntary decision by the Accused to let Jaromel use his ICBC account. There is even some evidence of some promise or prospect of gain from this enterprise. The Prosecution added that the love scam cases were cited to distinguish the present case from those cases in terms of the uplift in the sentence sought.

81     The Defence in their reply submissions reiterated that the Accused was not a party to the cheating plan which was the predicate offence. As for the dissipation of the monies, the Defence argued that the Prosecution’s own witness, Jaromel, had testified that his mother told him that the money had been returned to the source. This evidence was not challenged by the Prosecution. They appeared to be satisfied with that answer. So, the Accused is now entitled to rely on Jaromel’s evidence and to submit that restitution has indeed been made. In these circumstances, the onus is on the Prosecution to show that no restitution was made.

Court’s decision on sentence

82     The prescribed punishment for the offence under section 44(1)(a) of the CDSA is a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or both. I agreed with the parties that the five-step sentencing framework in Huang Ying-Chun applied to the present case. The factual elements were similar. The predicate offence was a cheating scam committed in Singapore. The monies derived from this offence, RMB 1,518,000 which is equivalent to about SGD 300,000, was laundered through the Accused’s ICBC account and thereafter dissipated by the Accused, acting on instructions received from one Lao Ying, into various Renminbi bank accounts. Lao Ying was unknown to the Accused and in conveying those instructions to the Accused, Lao Ying was effectively operating as a runner.

83     Applying the five-step sentencing framework in Huang Ying-Chun, the first step was to determine the level of harm and the level of culpability.

84     I agreed with the Prosecution that the amount cheated was the chief indicator of the level of harm involved. The amount involved here was about SGD 300,000. The Prosecution relied on five case precedents for an indication of the level harm, and I accepted this approach. The case precedents, save for Huang Ying-Chun, involved love scams and police impersonation scams. I found that these cases while having a different factual matrix were still relevant and provided a useful gauge. An amount of S$27,600 was held to be in the slight harm range. Amounts of S$72,050, S$174,750, and S$369,900 fell within the moderate harm range. Amounts of S$803,000 and S$957,000 were assessed to be in the severe harm range. The amount in the present case was about SGD 300,000 and it falls squarely within the moderate harm range. Additionally, the predicate offence of cheating was a serious offence and there was clearly a transnational element there as the monies were received from Dominic’s Chinese counterparts.

85     In assessing the Accused’s culpability, I agreed with the Prosecution that the Accused played a pivotal role in the plot to cheat. Without his ICBC bank account, the plot would have failed. The Accused was aware of the transnational nature of the transaction. He was helping Jaromel in Singapore to receive monies from China purportedly for a Bitcoin deal in China. There was also some evidence of a promise of a monetary reward which the Accused did not deny. When probed under cross-examination, he simply said that he could not recall. I accepted the Prosecution’s argument that the Accused’s culpability was not reduced merely because he did not receive the reward. All considered, I accepted the Prosecution’s submission that the Accused’s culpability fell within the Medium range. The indicative sentences for the various levels of harm and culpability were set out in Huang Ying-Chun.

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86     The present case of moderate harm and medium culpability fell within the range of 30 to 60 months’ imprisonment. Having considered the Accused’s level of involvement which was limited to agreeing to Jaromel’s request on a single occasion and with no further participation in the cheating scam, I agreed with the Prosecution that the indicative starting point within the sentencing range is 30 to 40 months’ imprisonment.

87     The next step was to take into account the offender-specific factors to make the appropriate adjustments to the indicative starting sentence.

88     In terms of the offender-specific considerations, there were no significant aggravating factors. As for the mitigating circumstances, it was noted that the Accused had a clean record and apart from this charge, he was not involved in any other offences. The Accused’s lack of antecedents and lack of TIC charges merited a downward adjustment to 27 months’ imprisonment. This sentence was in accordance with the sentencing precedents cited.

Conclusion

89     The evidence led at this trial unequivocally pointed to the Accused’s guilty mind. His lack of enquiries which any reasonable man in his position would have made showed that he had deliberately ignored the illicit nature of the transaction. His feeble defence of absolute trust in Jaromel failed dismally in the face of evidence to the contrary. The only inference to be drawn from these circumstances is that the Accused had been wilfully blind when there were reasonable grounds to believe that the monies constituted Jaromel’s benefits from his criminal conduct. Having regard to the severity of the offences, the sentence of 27 months’ imprisonment meted out to the Accused is just and appropriate. It is not a crushing sentence.

[note: 1]NE, Day 5 Page 3 Lines 3-7

[note: 2]NE, Day 1 Page 81 lines 4-31, Page 83 lines 1-10

[note: 3]NE, Day 1 Page 83 Lines 1 to 25

[note: 4]NE, Day 1 Page 8 lines 10-23, Page 9 lines 1-16

[note: 5]NE, Day 3 Page 7 Line 24 to Page 8 Line 9

[note: 6]NE, Day 3 Page 7 Line 24 to Page 8 Line 9

[note: 7]NE, Day 5 Pages 10-11 and Page 23

[note: 8]NE, Day 5 Page 63 Lines 1-5 and 12-16

[note: 9]Exhibit P4

[note: 10]Exhibit P3

[note: 11]NE, Day 5 Page 15 lines 21-32, Page 16 lines 1-32

[note: 12]NE, Day 5 Pages 22-23

[note: 13]NE, Day 5 Pages 49-50

[note: 14]NE, Day 5 Page 24 Lines 1-17

[note: 15]NE, Day 5 Page 4 Lines 2-7

[note: 16]NE, Day 5 Page 3 Line 17-22

[note: 17]Exhibit C Prosecution’s Closing Submissions at [16]

[note: 18]NE, Day 1 Page 83 Lines 11 to 20

[note: 19]NE, Day 5 Page 10 Lines 12 and 14

[note: 20]NE, Day 5 Page 17 Line 8-11

[note: 21]NE, Day 1 Page 90 Lines 8-11

[note: 22]NEs, Day 1 Page 89 Line 24 to Page 90 Line 17

[note: 23]NE, Day 2 Page 44 Line 30 to Page 46 Line 28

[note: 24]NE, Day 2 Page 55 Line 22 to Page 56 Line 4

[note: 25]NE, Day 5 Page 3 Lines 28-30

[note: 26]NE, Day 5 Page 49 Lines 9-12

[note: 27]Exhibit P5 at A15

[note: 28]NE, Day 1 Page 84 Lines 9-30, Page 91 Lines 1-29

[note: 29]NE, Day 2 Page 56 Line 20 to Page 57 Line 2

[note: 30]NE, Day 5 Page 26 Lines 27-29

[note: 31]NE, Day 5 Page 30 Lines 17-29

[note: 32]NE, Day 5 Page 60 Lines 23-32, Page 61 Lines 18-19

[note: 33]NEs, Day 5 Page 25 Lines 1-12

"},{"tags":["Criminal Procedure and Sentencing – Sentencing","Penal Code – Voluntarily Causing Hurt – Vulnerable victim – Enhanced sentences under ss 74B(2) and 74C(2)"],"date":"2024-09-16","court":"Magistrate's Court","case-number":"Magistrate Arrest Case 901498 of 2024 and Others","title":"Public Prosecutor v Dinesh S/O Rajalingam","citation":"[2024] SGMC 66","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32168-SSP.xml","counsel":["Yeo Zhen Xiong (Attorney-General's Chambers) for the Prosecution","Accused in Person"],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Christopher Goh Eng Chiang","html":"Public Prosecutor v Dinesh S/O Rajalingam

Public Prosecutor v Dinesh S/O Rajalingam
[2024] SGMC 66

Case Number:Magistrate Arrest Case 901498 of 2024 and Others
Decision Date:16 September 2024
Tribunal/Court:Magistrate's Court
Coram: Christopher Goh Eng Chiang
Counsel Name(s): Yeo Zhen Xiong (Attorney-General's Chambers) for the Prosecution; Accused in Person
Parties: Public Prosecutor — Dinesh S/O K Rajalingam

Criminal Procedure and Sentencing – Sentencing

Penal Code – Voluntarily Causing Hurt – Vulnerable victim – Enhanced sentences under ss 74B(2) and 74C(2)

16 September 2024

Judgement Reserved

District Judge Christopher Goh Eng Chiang:

Introduction

1       The Accused pleaded guilty to five charges under s 323 of the Penal Code 1871 (“PC”). Two charges were for causing hurt to his then girlfriend, victim 1 (“V1”) and three charges were for causing hurt to V1’s son, victim 2 (“V2”), who was then under four years old at V1’s home. As the Accused was in an intimate relationship with V1, the s 323 charges involving her were read with (“r/w”) s 74C(2) of the PC and, as V2 was under the age of 14 years, the charges involving him were r/w s 74B(2) of the PC.

2       Four more charges against the same victims were taken into consideration for the purposes of sentencing (“TIC”). Two TIC charges were for causing hurt to V1, one TIC charge was for causing hurt to V2 and the fourth TIC charge was for criminal intimidation against V1 under s 506 of the PC.

Summary of the facts

3       The proceeded charges involved incidents on three different occasions when the Accused was co-habituating with V1.

1st incident on 16/17 November 2022 (MAC-901498-2024 & MAC-901499-2024)

4       On either 16 or 17 November 2022, while in V1’s home, the Accused lost his patience with V2 as he refused to stop crying. He then slapped V2, who suffered bodily pain.

5       Having heard the slap, V1 came out of the kitchen to stop the Accused. The Accused kicked V1 in the face and threw his mobile phone at her. As a result, V1 suffered a bruise on her right eye and a cut on her nose area.

2nd incident on 18 December 2022 (MAC-901502-2024 & MAC-901503- 2024)

6       In the early morning of 18 December 2022, V2 could not sleep and began crying. This made the Accused angry. He used his mobile phone and hit V2 on his forehead multiple times.

7       Seeing this, V1 tried to intervene. The Accused slapped V1, pulled her hair and kicked her once. V1 felt bodily pain and suffered redness on the left side of her face, near her ear.

8       V2 suffered bodily pain and swelling on his head. It was only when V2’s condition worsened that the Accused allowed V1 to bring V2 to seek medical attention. V2 was admitted to KKH on 21 December 2022, suffering from headache, drowsiness, and persistent vomiting. A CT scan revealed that V2 had a small acute right subdural hematoma. He was also diagnosed with a mild traumatic brain injury resulting in a subdural hematoma and was hospitalized for five days between 21 to 26 December 2022. Prior to the V2’s discharge from hospital, the Accused was informed of the treatment received by the V2 and injuries suffered.

9       At KKH, V1 told the doctors that V2 had possibly fallen in the toilet. V1 did not tell them the truth because the Accused had threatened V1 that he would beat her up if she told the medical personnel the truth (this formed the subject matter of the TIC criminal intimidation charge).

3rd Incident on 3 January 2023 (MAC-901505-2024)

10     On 3 January 2023, at about 1100 hours, V2 felt pain on his forehead and began. This again irritated the Accused.

11     He grabbed V2’s neck and lifted him off the floor. When V1 tried to stop the Accused, he pushed V1 away with his elbow. Eventually, the Accused’s action caused V2 to lose consciousness, resulting in the V2’s head tilting backwards. The Accused stopped choking V2 and placed him on the sofa. The Accused then tried to wake V2 up by blowing air into his mouth and sprinkling water on his face. V2 eventually woke up.

12     V2 was subsequently brought for follow up treatment at KKH where V1 reported that V2 had symptoms of persistent headaches, poor appetite and his frequent vomiting had become worse. V2 was admitted to KKH from 4 to 10 January 2023 when his symptoms gradually improved.

13     During this time, the Accused moved out of V1’s home.

The chronology of when the offences were committed

14     To better appreciate when the offences were committed, (ie. five proceeded and four TIC charges), the following table sets out the chronology of events:

Date

Charge

Victim / Brief Description of harm caused

24 October 2022

TIC

MAC-901497-2024

V1. Slapped her cheek twice

16/17 Nov 2022

Proceeded

MAC-901498-2024

V2. Slapped him on the cheek.

MAC-901499-2024

V1. Threw phone at V1’s face. Causing bruise on right eye and cut at nose area.

21 November 2022

TIC

MAC-901500-2024

V1. Hit V1 on left forearm with a hanger.

MAC-901501-2024

V2. Hit V2 on his body with a hanger.

18 December 2022

Proceeded

MAC-901502-2024

V1. Pulled her hair and kicked her stomach.

MAC-901503-2024

V2. Used mobile phone to hit V2 on his forehead multiple times.

18 December 2022

TIC

MAC-901504-2024

V1. Threatened to beat her up if she told authorities how V2 sustained his injuries.

3 Jan 2023

Proceeded

MAC-901505-2024

V2. Grabbed V2 by his neck and lifted him of the floor causing him to lose consciousness



Antecedents

15     The Accused has numerous antecedents which he admitted to. Excluding the offences he had committed when he was a juvenile, I set out his relevant antecedents thereafter which involved violence or that were violence related:

Date

Offence

Sentence

16/09/2009

s.394 PC. Robbery

s.354A(2)(a) PC. Aggravated outrage of modesty

s.323 PC. Causing hurt (TIC).

RTC

Note: Also convicted for other offences

27/12/2012

s.324 PC. Causing hurt by dangerous weapon or means.

7 months’ imprisonment and caning 3 strokes

18/11/2016

s.354(1) PC. Outrage of modesty

15 months’ imprisonment and caning 3 strokes. years’ imprisonment

Note: Also convicted for other offences

23/08/2019

s.353 PC. Using criminal force on a public servant.

s.353 PC. Using criminal force on a public servant. (TIC)

3 weeks’ imprisonment

Note: Also convicted for other offences

07/06/2021

s.323 PC. Causing hurt (TIC).

NA

Note: Also convicted for other offences



Decision on Sentence

Punishment prescribed by law

16     The punishment prescribed by law for a charge of causing hurt under s 323 of the PC is imprisonment for a term which may extend to three years, or with fine which may extend to $5,000, or with both.

17     Further, as the Accused was in an intimate relationship with V1, and V2 was below 14 years of age, under ss 74C(2) and 74B(2) of the PC respectively, the Accused was liable to enhanced punishment not exceeding twice the maximum punishment prescribed.

The sentencing framework

18     The Prosecution has set out the sentencing framework for offences involving ss 74B and 74C at [8] - [18] of the Prosecution’s Sentencing Position (“PSP”). This is based on the High Court’s decision in GFX v PP [2024] SGHC 140 (“GFX”). I am in general agreement with this framework. This is further elaborated below.

19     In GFX, the offender faced a charge of causing grievous hurt under s 325 r/w s 74B(2) of the PC. On appeal, the High Court at [49] set out the following three-step process to determine the appropriate sentence. This is as follows:

(a)     First, the court is to considers the seriousness of the injury in arriving at an indicative starting point for the s 325 offence (ie “base” offence);

(b)     Second, the court is to make an uplift to the indicative starting point by way of a multiplier to reach the enhanced indicative starting point;

(c)     Thirdly, the court will adjust the indicative enhanced starting point upwards or downwards based on the presence of relevant aggravating and mitigating factors.

20     I agree with the Prosecution that, although the offender in GFX was convicted for an offence of causing grievous hurt, and the enhancement was under s 74B(2) of the PC, the same sentencing framework could not only be utilized for an offence of causing hurt under s 323 of the PC but also where an offender is in an intimate relationship with the victim under s 74C(2) of the PC.

First step: the sentencing framework for offences under s 323 of the PC

21     The first step is to determine the appropriate sentencing range based on the hurt caused. In Niranjan s/o Muthupalani v PP [2023] SGHC 181 (“Niranjan”) at [63], the High Court set out the sentencing ranges for a first-time offender who claims trial to a s 323 PC charge. This is reproduced below for easy reference.

Band

Factors

Indicative sentencing range for first-time offenders claiming trial

1

Low harm: no visible injury or minor hurt such as bruises, scratches, minor lacerations or abrasions

Fines or custodial term up to 8 weeks’ imprisonment

2

Moderate harm: hurt resulting in short hospitalization or a substantial period of medical leave, simple fractures, or temporary or mild loss of a sensory function

Between 8 weeks and 12 months’ imprisonment

3

Serious harm: serious injuries which are permanent in nature and/or which necessitate significant surgical procedures

Between 12 months and 36 months’ imprisonment



Second step: identifying the multiplier for ss 74C(2) and 74B(2) of the PC

(1)   Multiplier for s 74C(2) of the PC (viz V1)

22     The increase in the punishment prescribed by law under s 74C(2) of the PC is meant to impose additional punishment for domestic abuse cases and thus extends to intimate partners. Deterrence is the paramount consideration. The only issue would be to determine the multiplier. The main consideration to determining this would be the extent of this relationship and extent of trust and interdependency between the parties. This is a fact-specific inquiry (PP v Tan Jia Jun Shawn [2022] 5 SLR 560 (“Shawn Tan”) at [17]).

23     I note that V1 and the Accused entered into a relationship sometime in September 2022 and began cohabiting sometime in October 2022 when the Accused moved into V1’s home (see SOF at [5]). I accept that there is some level of trust and dependency which was perhaps higher when compared, for example, to a case where an offender and a victim were in an intimate relationship but not staying together. There may be other factors that could cause the multiplier to increase (or decrease, as the case may be) but in this instant, I was prepared to accept the Prosecution’s submission of a multiplier of 1.5 times.

(2)   Multiplier for s 74B(2) of the PC (viz V2)

24     In GFX, the High Court had, at [43] – [44], set out the appropriate enhancement to be applied for offences r/w s 74B(2) taking into account the victim’s age. This is set out below:

Age of victim

Enhancement (%)

0 – 3 years

76 – 100

Just over 3 years – 6 years

51 – 75

Just over 6 years – 10 years

26 – 50

Just over 10 years – just under 14 years

1 – 25



25     Although GFX was concerned an offence under s 325 of the PC, I agree that there is no reason why the enhancement set out by the High Court should not be equally applicable to an offence under s 323 of the PC. Hence, as V2 was then about three years and nine months old, the Prosecution’s submission of an enhancement of 70% in this instant is appropriate. This would equate to a multiplier of 1.7 times.

Third step: adjusting the indicative enhanced starting points based on the relevant aggravating and mitigating factors

26     In the third step, the offence related aggravating and mitigating factors are considered, as are and the offender related aggravating and mitigating factors, which in this case are the Accused’s antecedents and the TIC charges.

(1)   Offence-related aggravating and mitigating factors

27     In GCX at [47] the High Court set out a list of non-exhaustive factors to be considered. Not all as relevant to the present case. I considered, amongst other things, the following factors:

(a)     the extent of deliberation or premeditation;

(b)     the manner and duration of the attack;

(c)     the use of any weapon / or object;

(2)   Offender-related aggravating and mitigating factors

28     The offender-related aggravating factors concerns the Accused’s antecedents and the TIC charges. The Prosecution sought uplifts ranging from three to six months’ imprisonment for this. I agree that an uplift would be applicable because of:

(a)      The antecedents. The Accused has numerous violence related antecedents. These are set out at [15] of this Judgement.

(b)      The TIC charges. In this case, three of the four TIC charges are for similar offences under s 323 of the PC. In determining the respective uplifts, I note that in two TIC charges, V1 is the named victim while V2 is the named victim in the third TIC charge. The fourth TIC charge is a criminal intimidation charge relating to the 2nd incident on 18 December 2023. I was of the view that this charge would enhance the Accused’s culpability for the charges relating to that incident.

Final step: reduction in sentence for pleading guilty

29     I agree that other than the fact that the Accused had pleaded guilty, there are no other offender-related mitigating factors. As the Accused had pleaded guilty at Stage 1 of the Guidelines on Reduction in Sentences for Guilty Pleas, the full reduction of up to 30% will be accorded to him.

The Prosecution’s sentencing position.

30     Based on the sentencing framework in GFX, the Prosecution is seeking a global sentence of between 9 to 11.5 months’ imprisonment with two sentences of imprisonment to run consecutively. Their sentencing position can be found in PSP at [19] and is summarised below for easy reference:

Charge No (victim)

1st stage: base sentence

2nd stage: after ss 74B/74C enhancement

3rd stage: after aggravating/ mitigating factors

Final stage: sentence after SAP reduction

MAC-901498-2024 (V2)

Up to 2 wks

Up to 1 mth

2 -3 mths

2 – 3 mths

MAC-901499-2024 (V1)

Up to 1 mth

0.5 – 1.5 mths

3.5 – 4.5 mths

2.5 – 3.5 mths

consecutive

MAC-901502-2024 (V1)

Up to 1 mth

0.5 – 1.5 mths

3.5 – 4.5 mths

2.5 – 3 mths

MAC-901503-2024

2 – 3 mths

3.5 – 5 mths

7.5 – 9 mths

5 – 6.5 mths

MAC-901505-2024

2 – 3 mths

3.5 – 5 mths

9.5 – 11 mths

6.5 – 8 mths

consecutive



Applying the framework to the charges

31     In determining the appropriate sentence for each charge, I now proceed to apply the above sentencing framework to the proceeded charges.

Charges relating to the 1st incident on 16/17 November 2022

32     In MAC-901499-2024, the Accused caused hurt to V1. My assessment is as follows:

(a)      Stage 1: hurt caused. V1 suffered a bruise on her right eye and a cut on her nose area. In my view, this injury fell within Band 1 of the framework set out in Niranjan. I agree that the custodial threshold was crossed but I disagree with the Prosecution’s assessment as to the length of the sentence, namely a sentence of “up to one months’ imprisonment”. Instead, I assess the indicative sentence to be slightly more than one week’s imprisonment, namely about 10 – 11 days’ imprisonment.

(b)      Stage 2: uplift per s 74C(2) PC. With a multiplier of 1.5 times, this will give an indicative enhanced sentence of about two weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. The Accused kicked V1 at a vulnerable area, namely her face, and threw his mobile telephone at her. In my view, an uplift of at least three to four weeks’ imprisonment is appropriate. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be five weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Applying the full PG discount, the final sentence reached is about five weeks’ imprisonment. ie. 70% x seven weeks’ imprisonment.

33     In MAC-901498-2024, the Accused caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2 did not suffer any visible injury. I accordingly assess that this fell within Band 1 of the framework set out in Niranjan. While I accept that the custodial threshold was crossed, I assess the indicative starting sentence be slightly less than one week’s imprisonment.

(b)      Stage 2: uplift per s 74B(2) PC. With a multiplier of 1.7 times, this will give an indicative enhanced sentence of about 1.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. V2 was simply crying when the Accused slapped him. As this was but a slap, I find that an uplift of about two weeks’ imprisonment to be fair. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be about 3 weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentence reached is about three weeks’ imprisonment. ie. 70% x 4.5 weeks’ imprisonment.

Charges relating to the 2nd incident on 18 December 2022

34     In MAC-901502-2024, the Accused caused hurt to V1. My assessment is as follows:

(a)      Stage 1: hurt caused. V1 felt bodily pain and suffered redness over the left side suffered of her face. This injury fell within Band 1 of the framework set out in Niranjan. I likewise agree that the custodial threshold is crossed and assess the indicative sentence to be about one week’s imprisonment.

(b)      Stage 2: uplift per s 74C(2) PC. With a multiplier of 1.5 times, this will give the indicative enhanced sentence of about 1.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. In terms of the offence-related aggravating factors, I note that Accused had slapped V1, pulled her hair, and kicked her stomach. In my view, an uplift of five to six weeks’ imprisonment is appropriate. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be about seven weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentenced reached is about six weeks’ imprisonment. ie. 70% x 8.5 weeks’ imprisonment.

35     In MAC-901503-2024, the Accused caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2 was not brought to the hospital until 21 December 2022 when his condition worsened. A CT scan revealed that V2 had a small acute right subdural hematoma and was also diagnosed with a mild traumatic brain injury resulting in a subdural hematoma and was hospitalized for five days between 21 to 26 December 2022. In my assessment, this falls within Band 2 of the framework set out in Niranjan. I assess the indicative starting sentence to be 12 weeks’ imprisonment.

(b)      Stage 2: uplift per s 74B(2) PC. With a multiplier of 1.7 times, this will give the indicative enhanced sentence of about 20.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. Once again, the Accused assaulted V2 simply because he was crying. He used his mobile telephone to hit him twice, before and after V1 tried to intervene. Another aggravating factor was that the Accused did not allow V1 to bring V2 to seek medical attention. This could have serious repercussions as the injuries were caused to V2’s head. Furthermore, when V2 was brought to the hospital, the Accused threatened V1 that he would beat her up if she told medical personnel the truth of what had happened to the V2 (subject matter of the TIC charge MAC-901504-2024). V2 was eventually admitted to hospital for five days. I accordingly the uplift to be about 10 to 11 weeks’ imprisonment. Including the uplift for the TIC charges and antecedents, I assess the total uplift for this stage to be 12 weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentence sentenced reached is about 23 weeks’ imprisonment. ie. 70% x 32.5 weeks imprisonment.

Charges relating to the 3rd incident on 3 January 2023

36     In MAC-901505-2024, the Accused also caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2’s crying once again irritated the Accused. He lifted V2 off the ground by his neck until V2 lost consciousness. Although V2 subsequently regain consciousness, he later had symptoms of persistent headaches, poor appetite and frequent vomiting which had become worse. V2 was admitted to hospital from 4 to 10 January 2023 and his symptoms gradually improved. It my view, this injury fell within Band 2 of the framework set out in Niranjan. I adjudge that the hurt caused here is higher than that caused to V2 in the 2nd incident and assess that the indicative starting sentence is 14 weeks’ imprisonment.

(b)      Uplift per s 74B(2). With a multiplier of 1.7 times, this will give the indicative enhanced sentence of about 24 weeks’ imprisonment.

(c)      Aggravating factors. In this incident, one additional aggravating factor is that the Accused committed this offence despite knowing the injuries V2 had suffered earlier. In my view, an uplift of about 12 – 13 weeks’ imprisonment to be appropriate. Including the uplift for the TIC charges and antecedents, I assess the total uplift for this stage to be 14 weeks’ imprisonment.

(d)      Applying the PG discount. Having applied the 30% PG discount, the sentenced reached is about 27 weeks’ imprisonment ie. 70% x 38 weeks imprisonment.

Consecutive or concurrent sentences

37     Having determined the individual sentences, I next had to consider which of these sentences of imprisonment should run consecutively. Under s 307 of the CPC, I am required to run at least two sentences of imprisonment consecutively.

38     The Prosecution is seeking for two sentences of imprisonment to run consecutively, namely MAC-901499-2024, where the Accused caused hurt to V1 and MAC-901505-2024, where the Accused caused hurt to V2.

39     I disagreed. As the five proceeded charges encompassed three separate occasions, I adjudge that it was more appropriate that three of the sentences of imprisonment run consecutively. I therefore order at the sentences of imprisonment in the following charges to run consecutively:

(a)     MAC-901499-2024 (1st incident, committed against V1);

(b)     MAC-901503-2024 (2nd incident, committed against V2); and

(c)     MAC-901505-2024 (3rd incident, committed against V2)

Final sentence imposed

40     In summary, I impose the following sentences:

Charge No.

Offence

Sentence Imposed

MAC-901498-2024

V2. Slapped him on the cheek.

three weeks’ imprisonment

MAC-901499-2024

V1. Threw phone at face. Caused bruise on right eye, cut at nose.

Five weeks’ Imprisonment

consecutive

MAC-901502-2024

V1. Pulled hair and kicked stomach.

six weeks’ imprisonment

MAC-901503-2024

V2. Used phone to hit V2 on his forehead multiple times.

23 weeks’ imprisonment

Consecutive

MAC-901505-2024

V2. Grabbed V2 by his neck and lifted him off the floor causing him to lose consciousness

27 weeks’ imprisonment

consecutive



41     I therefore impose a global sentence of 55 weeks’ imprisonment.

42     While the global sentence of 55 weeks’ imprisonment is higher than the upper end of the Prosecution’s proposed sentencing range of 11.5 months’ imprisonment, I nonetheless found this to be appropriate. It was not a crushing sentence and I find that it more accurately reflects the Accused’s criminal culpability and accordingly, no further adjustment is required to the individual sentences.

Concluding remarks

43     What the Accused did to V2 to be both egregious and cowardly. Such volent conduct cannot be condoned.

44     He hurt V2 on numerous occasions and the only reason for doing so, it would appear, was the fact that V2 would not stop crying. He hurt an innocent child who was unable to defend himself. Even when V1 tried to intervene, the Accused continued to hurt V2. His violent acts against V2 did not stop even though he was aware that V2 had previously suffered injuries in his hands and had been warded in hospital. Further, in co-habiting with V2’s mother in her home, one of his responsibilities was ultimately to share, or minimally to assist in looking after V2. He did not. Instead, he abused the trust reposed in him. It can only be hoped that the incident(s) will not leave a lasting psychological effect on V2.

"},{"tags":["Criminal Law – Outrage of Modesty – Penal Code","Criminal Law – Obscene Act – Penal Code","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-16","court":"District Court","case-number":"District Arrest Case No 916718 of 2021 & Anor, Magistrate's Appeal No 9119 of 2024-01","title":"Public Prosecutor v Wong Xiu Xian","citation":"[2024] SGDC 237","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32163-SSP.xml","counsel":["DPP Grace Teo Pei Rong (Attorney-General's Chambers) for the Public Prosecutor","Bernard Sahagar and Shaun Sim (Lee Bon Leong & Co) for the accused person."],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Kok Shu-en","html":"Public Prosecutor v Wong Xiu Xian

Public Prosecutor v Wong Xiu Xian
[2024] SGDC 237

Case Number:District Arrest Case No 916718 of 2021 & Anor, Magistrate's Appeal No 9119 of 2024-01
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Grace Teo Pei Rong (Attorney-General's Chambers) for the Public Prosecutor; Bernard Sahagar and Shaun Sim (Lee Bon Leong & Co) for the accused person.
Parties: Public Prosecutor — Wong Xiu Xian

Criminal Law – Outrage of Modesty – Penal Code

Criminal Law – Obscene Act – Penal Code

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9119/2024/01.]

16 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused is a 39-year-old Singaporean male who claimed trial to 2 charges:

(a)     One charge of using criminal force to outrage the modesty of one [V] by touching V’s vagina and squeezing her breasts, and in order to commit the offence, voluntarily causing wrongful restraint to V, which is an offence under section 354A(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the section 354A charge”); and

(b)     One charge of doing an obscene act in a public place by exposing his penis to V, which is an offence under section 294(a) of the Penal Code (“the obscene act charge”).

2       At the conclusion of the trial, I amended the section 354A charge to remove references to V having been touched underneath her clothing and to change the reference to V being pinned down to having been blocked by the accused’s body.

3       I convicted the accused on both charges and sentenced him to a global sentence of 4 years’ imprisonment and 6 strokes of the cane.

4       The Defence has filed an appeal against both the convictions and sentences imposed.

Facts

The undisputed facts

5       It was undisputed that the accused and V were strangers who were unacquainted before the incident on 24 August 2021 and did not have any interactions thereafter. There was also no dispute that the accused did have an encounter with V that day and that they were both the premises of the estate where V resided (“the estate”)[note: 1] on 24 August 2021 at around 2am – in other words, the Defence did not claim that the accused had been mistaken for another person.[note: 2]

6       From the testimonies of V and the accused, there was also convergence as to some of the general contours of the events of 24 August 2021. The first point of contact between V and the accused was outside the gate and continued up the stairs behind the side entrance for residents and at the landing on top of the stairs.

7       At some point, the accused caused V to fall down around the stairs. As V got up, she fell again, this time backwards into a row of bushes at the side of the landing of the stairs. The accused’s body was positioned above her whilst she was in the bushes.

8       After the accused exited the compound, V scolded the accused. The accused turn back and reacted to V’s scolding with a rude gesture.

9       V subsequently captured photographs of the accused in the vicinity of the estate, having spotted him after the incident.[note: 3]

The Prosecution’s case

10     The Prosecution led evidence from a total of 4 witnesses. Apart from V, evidence was also led from one Quey Zhi Qiang (PW2), a doctor who examined V after the incident (PW3) and the investigation officer (PW4).

V’s evidence

11     At the time of trial, V was 32-year-old Chinese national. She testified that she arrived in Singapore from China in July 2021 to study, and she had been renting a place to stay at the residential estate located at the estate.

12     At about 2am on 24 August 2021, V was walking home alone.[note: 4] She was wearing a black top and white skirt that was slightly above her knees.[note: 5] She said she felt that someone was following her and when she turned around, she saw someone about 2 to 3 metres away from her.[note: 6] She said the man as wearing a red-orange top and shorts and a mask.[note: 7]

13     V said she quickened her steps and as she tried to get her keys from her handbag, the person pounced on her at the area near the side gate into the estate[note: 8], next to the white line on the ground,[note: 9] by using his arms to surround her chest and collarbone area from the back.[note: 10] When he pounced on her, V said that she shouted, “what are you doing?” at him but he did not respond.[note: 11]

14     V said she then struggled to make her way toward the side gate and to tap her access card. She managed to tap the card and the gate opened.[note: 12] After the gate opened, V tried to move up the staircases just behind the gate[note: 13].

15     As V tried to go up the stairs, she said that the person was pulling onto her, causing her to fall.[note: 14] She said that she was unable to get up as she moved from the bottom of the stairs to the top, and that the person was bent over her, using one of him arms to hold onto V’s arm while his other hand was somewhere on her waist.[note: 15]

16     When she reached the top of the stairs, V said that the contents of her bag and her handphone had scattered all over the floor. V said that she tried to stand up to pick up her phone, when she was pushed by the person towards the plants, and she fell. She said that she fell onto the concrete bench lining the planter box at the side of the staircase landing, with the upper half of her body was in the plants.[note: 16]

17     When describing her position at this time, V said during her examination-in-chief that she was in a half-lying position because the person was pinning down on her and she was not able to move.[note: 17] During cross-examination, she said that she had not been pinned down – she said that she had fallen backwards into the plants, so she was facing upward, while the person was bending forward though his body was not resting on hers.[note: 18] She said that she could not get up as she had used up all her strength in struggling and trying to push the person away[note: 19].

18     V said that when her upper body was in the plants and she was facing upwards, the accused – who was positioned above her – put his hand under her top from the collar.[note: 20] She said that he first touched both her breasts[note: 21] with both his hands, before using only his right hand underneath the top[note: 22]. He then used his left hand to touch her vagina[note: 23] – first touching her over the underwear and then underneath the underwear, going in from the side of her thigh to touch her private part.[note: 24]

19     During cross-examination, V was confronted with a statement that was recorded from her by the investigation officer, PW4, during investigations.[note: 25] It was highlighted to V that according to the statement, V said that she had been touched by the accused over her clothing – specifically that he had touched her vagina over her panties, and that he had squeezed both her breasts over the short-sleeved blouse that she was wearing. V explained that it was quite chaotic at the time of the incident - she said that he started off by touching her above the clothes and then under the clothes.[note: 26] She claimed that did tell PW4 that she had also been touched underneath her clothing but said that PW4 had mistakenly omitted to record these in the statement.[note: 27]

20     Whilst the person was touching her, V said that she wanted going to report the matter to the police, to which he retorted in Mandarin “I’ve already touched you, you can call the police all you want”[note: 28] in a tone that she said sounded as if he was belittling her.[note: 29]

21     After the person got up, V took the opportunity to pick up her phone and called her classmate, a person she identified as ‘Na Na’ as she did not know the number to call the police. V said that she managed to place a call through to Na Na and as she was telling Na Na that she had encountered an incident, the person turned to leave the premises of the estate via the side gate.

22     After the person had exited the gate had closed behind him, V stood near the railings of the compound and started to scold the accused from where she was. When the accused heard V scolding him, he turned around, took a few steps back in her direction and pulled down his shorts, exposing his penis to V.[note: 30]

23     Following this incident, V returned to her apartment at the estate and called her friend Na Na. She told Na Na that she was scared, and Na Na asked V to go over to her place.[note: 31] So about 10 minutes after returning to her apartment, V left the estate, planning to walk towards the main road to get a taxi.[note: 32] As she was walking down the road outside the estate, she spotted the person who had just assaulted her walking and talking on his phone and proceeded to take a photograph of him.[note: 33]

24     After she took the photograph, V noticed the person turn back and thinking that he had seen her, she panicked and noticing an open door of a car parked along the side of the road, she spoke the driver of the car, who was unknown to her, and told him that she had been robbed by the person she had just photographed. The driver told her to get into the car and that he would help her to go after this person. Whilst seated in the car, V took a second photograph of the person who had attacked her. [note: 34]

25     When the person turned into a road that the driver could not turn into, V said that she thanked the driver and alighted from his car. She managed to get a taxi and went to Na Na’s house. V told the court that Na Na left Singapore and returned to China sometime in March or May 2022 and that she had since lost contact with her.

26     Apart from Na Na, V said that she had also told one ‘Xiao Ming’ about what had happened to her. Xiao Ming was the agent who had assisted V in applying for her visa to stay in Singapore, and she said she received a text message from him reminding her to take precautions due to the worsening Covid-19 situation.[note: 35] After deliberating for a long time whether she should tell Xiao Ming about what had happened, since he was a guy, she decided to do so. Xiao Ming then told her to police report and accompanied her to do so on 25 August 2021 at about 6.39pm.[note: 36]

27     V also went for a medical check-up at Tan Tock Seng Hospital, where she briefly told the doctor about the incident and was examined for injuries.[note: 37] Photographs of injury marks on V were admitted into evidence[note: 38] and V confirmed that these were all injuries that she sustained in the altercation with the accused.[note: 39]

28     When asked about how the incident had affected her, V said that she had been affected psychologically, though she had not sought any treatment or help. She could not sleep well, had nightmare and continued to feel depressed even up to the time of the trial. She said that talking about the incident made her feel stressed and extremely scared, and having to give testimony about the incident made her feel helpless.[note: 40]

PW2’s evidence

29     PW2 was a self-employed consultant who ran a business called Visa Global Solution that assisted foreigners in handling visa-related issues. He informed the court that he was also known as ‘Xiao Ming’ and that he was the agent who had assisted V with her visa for her stay in Singapore.[note: 41]

30     He testified that V had texted him late one night asking to speak with him and that they eventually spoke via WeChat. He said that it took V a while to tell him what really happened, but she eventually told him that she had been molested. When he pressed V for details of the incident, he recalled that V told him that she had been walking home when she felt someone following her, which caused her to speed up her pace of walking. As she was scanning her access card to enter the condominium premise, she said that the unknown stranger came charging toward her from the back.[note: 42]

31     He said that V also told him that the stranger had pinned her onto the ground and had used his hand to touch her private area, specifically her breasts followed by her vagina, and that she had asked him to stop.[note: 43] According to PW2, V told him that the incident started as she was walking up the staircase at the entrance of the condominium and that the stranger pinned her down along the stairs and near the walkway inside the condominium parameter.[note: 44] He also explained that he had visited the estate before, though this was not with V but another client.[note: 45]

32     V also told him that in the midst of the incident, her phone rung, and she managed to press the key to answer the call, and that when the stranger heard the sound from the phone, he panicked, stopped what he was doing and tried to exit the condominium premise.[note: 46] After he had exited the condominium premises, PW2 said that V told him that the attacker flashed him private area at V before walking away.[note: 47]

33     PW2 said that V then told him that after resting at her place for a short while, V went out to look for the attacker. She sought the assistance of a driver and whilst in his car she spotted the attacker and was able to take a few photographs of the side profile of the person.[note: 48]

34     PW2 described V during this phone call as sounding a bit embarrassed and lost, as she asked PW2 how such a thing could happen to her just a few months after arriving in Singapore.[note: 49] He said that V was crying during the call, and that he tried to calm her down. He offered to go to the police station with her, as he felt it was the right thing to do since she did not have any friends in Singapore. He then sent her the address of the police station and they arranged to meet outside the station.[note: 50]

35     Prior to this phone call, PW2 said that he had only met with V twice – once at her school to handle administrative formalities, and another time when she obtained her student pass at the Immigration and Checkpoint Authority. From his earlier interactions with V, PW2 described her as a very outgoing person but after the incident, he felt that she tried to keep everything to herself and did not talk so much.[note: 51]

36     At the police station, PW2 assisted in translating for V as the first information report was made as the police officer was not a Chinese. PW2 said that V seemed lost during the recording of the report, and that she was not maintaining eye contact with him, which he found was quite different from her demeanour the previous two times that they had met.[note: 52]

37     Once the matter was forwarded to an investigation officer, he said that V proceeded into the interview alone and he waited for her at the police station. Following the interview with the investigation officer, PW2 accompanied V to Tan Tock Seng Hospital for a medical check-up that the police had requested, where again he helped her translate during the registration process before she went in for the check-up with the doctor alone.[note: 53]

38     PW2 indicated that he no longer had any record of his communications with V as he had changed his mobile phone, resulting in the loss of his previous chat records on WeChat.[note: 54]

The remaining witnesses

39     PW3 was the doctor who examined V at Tan Tock Seng Hospital on 25 August 2021. She testified that V had told her that she had been assaulted by an unknown male and had been grabbed by her leg, causing her to sustain abrasions over the leg. PW3 conducted a physical examination of V and discharged her with some medication.

40     During cross-examination, PW3 was asked to comment on photographs of injuries on V’s legs and agreed that some of the injuries appeared to be fresh while other appeared older.

41     PW4 was a Senior Station Inspector attached to the Special Victims Unit who was assigned as the investigation officer for the case reported by V, who also recorded the long statement from V. She testified that during the statement recording, V was quiet, looked a bit lost, avoided eye contact with her, and needed time to relate the incident to her. She confirmed that the contents of the statement came entirely from V, who had spoken in Mandarin.

42     During cross-examination, PW4 agreed that as an experienced investigation officer, she appreciated the difference between outrage of modesty that involved skin-to-skin contact as opposed to contact over the clothes.

Close of the Prosecution’s case

43     The Defence did not make any submission of no case to answer at the close of the Prosecution’s case. I was satisfied that a prima facie case had been made out on the charges and accordingly I called upon the accused to enter his defence.

The Defence’s case

44     The accused was the only witness for the Defence.

45     At the time of the trial, the accused was employed as a regular in the Singapore Armed Forces, holding the rank of third warrant officer. He had been in service for 18 years and his highest educational qualification was a diploma.

46     The accused said that he married his second wife in 2016 and claimed that she had a tendency to quarrel or fight with him when she became drunk. Photographs of injuries on the accused’s body was tendered into evidence[note: 55], which the accused said were the result of fights with his wife. At the time of the offence, the accused and his wife were renting a room in an apartment within the vicinity of V’s apartment.[note: 56]

47     On 24 August 2021, the accused had taken a day of leave from work[note: 57] as his wife was due to fly off that morning and he intended to send her to the airport. Sometime just before 2am that day, the accused recalled that he had not placed a parking coupon for his car for the next morning. After placing the parking coupons at his car,[note: 58] he saw a person who looked like one ‘Xiaoling’.

48     According to the accused, he came to know Xiaoling sometime in 2015 at a club in Tanjong Pagar. Sometime in 2019, she borrowed about S$2,800 from the accused, following which the accused said his WhatsApp account was deleted by his wife and he was unable to contact her anymore.[note: 59] The accused explained that he was eager to have his money back from Xiaoling as he had recently become the victim of an online scam, for which he made a police report on 14 May 2021.[note: 60]

49     When he saw the person whom he thought was Xiaoling on 24 August 2021, he proceeded to follow her. There was no dispute at the time of trial that this person was in fact not Xiaoling, but V, whom was a stranger to him. When they reached the gate, the accused said that V was waiting for the gate to open, and he asked her if she was Xiaoling. He said V turned around, shook her head once and went up the staircase.[note: 61] The accused denied that he had grabbed her from behind.[note: 62]

50     The accused said that even though V had turned around to face him, he was not able to recognise at that time if she was indeed Xiaoling as she was wearing a mask.[note: 63] Unconvinced that V was not Xiaoling and thinking that she might be trying to avoid him due to the money that she owed him, he chose to follow V up the staircase.[note: 64]

51     As V was about to reach the top of the flight of steps, the accused said that he tried to reach out for her hand but was only able to grab her skirt instead. The pull on her skirt caused her to trip and fall forward onto the ground.[note: 65] According to the accused, the contents of her bag fell out onto the ground when she fell.[note: 66] Once she fell to the ground, the accused said that he went forward to help her up by the front. He said that V had turned toward the right and was half-facing him, and so he placed his right hand in front of her chest and with his hand under her left arm to try to lift her up.[note: 67] He said that she struggled and tried to push him away as he was lifting her up.[note: 68]

52     After V managed to get up, the accused said that she tried to struggle again – she hit and pushed him, which caused her to lose balance and fall backward into the planter box, such that the top half of her body was in the bush.[note: 69] The accused said that he tried to hold onto her to prevent her from falling using his right hand but was unable to do so. He said that because she used her right hand to pull his shirt, he fell onto her. While trying to break his fall using his left hand, he said he sustained some cuts and bleeding on his hand due to the thorns in the plants.[note: 70] He did not seek any treatment for these injuries.[note: 71]

53     According to the accused, he was on top of V at the bush for about 1 or 2 second because his hand was in pain, so he quickly picked himself up and left the compound, going down the staircase and out of the gate, leaving her in the bush.[note: 72] In the brief moment that he was positioned above her in the plants, he said that his knee was positioned on the concrete bench but was not resting his body weight on her. The accused denied touching V’s breasts or her vagina, whether over or underneath the clothing.[note: 73]

54     Explaining why he decided to leave at this point, the accused said that he was still unconvinced that V was not Xiaoling who had borrowed money from him, but he left because did not want to escalate matters any further since he was already injured.[note: 74] He said that he left via the side gate while it was still closing – according to him, the side gate took about 40 seconds to close, and he was able to squeeze out just before it closed completely, which he explained meant that he had spent no more than 40 seconds within the compound of the condominium.[note: 75]

55     After he exited the gate, he turned right and walked down along the road. As he passed by the vehicle gate of the estate, he said that V came out of the gate, stood on the grass patch in front of the estate and started to scold him with some vulgarity.[note: 76] The accused said that he responded by also scolding her back, pointed his middle finger at her and also made a gesture by crossing his hands and making a downward gesture around the area of his pelvis. He did so because he was in pain and because she had scolded him.[note: 77] He denied exposing his private parts to V.[note: 78]

56     The accused then left the area and headed towards a nearby park when his wife called him, and they started to quarrel over the phone. He then walked back to a spot about 300 meters away from the estate he spotted V together with a guy, standing outside of a black car.[note: 79] He was unsure whether V and the man saw him. As he was still quarrelling with his wife on the phone, he did not think much about having spotted V.[note: 80]

57     As he continued walking, he noticed a black car with a man sticking out his head to look at him though it stopped following him when he turned onto another road. He did not see V at this point.

Analysis of the evidence

Assessment of V’s evidence

58     The Prosecution’s case against the accused rested almost entirely on V’s testimony. As the Defence rightly pointed out, this was a case where there was little corroborative evidence in that there were no eyewitnesses, no video footage or DNA evidence that might support her account of events.

59     While I do not think that the lack of corroborative evidence is in itself reason to discredit a witness’ account, it is clear that in such a situation, the evidence of the witness must be unusually convincing in the sense that it must be sufficient, in and of itself, to overcome any reasonable doubts that might arise from the lack of corroboration (see Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533).

V’s credibility as a witness

60     In court, it was evident that the incident that occurred on 24 August 2021 had been traumatic and deeply unpleasant for V. Her testimony was textured in a manner that reflected what would have been a chaotic episode. This was a stranger she did not know before the incident and had not interacted with since the incident who accosted her in the middle of the night, not long after she arrived in Singapore.

61     Objectively, I could see no reason for her to make false allegations against the accused. The accused himself also accepted that he could not think of any reason for V to make up false accusations against him.[note: 81]

62     The Defence argued that it was plausible that V had made false accusations ought of anger and annoyance at the accused for confronting her in the middle of the night and giving her a scare,[note: 82] though this was not something that was put to V in examination. Bearing in mind that it is not sufficient for the Defence to make bare assertions of any motive to falsely implicate the accused (see Goh Han Heng v Public Prosecutor [2003] 3 SLR(R) 374 at [33]), I did not think that the Defence had put forward sufficient evidential basis of such motive of V to do so.

63     I also noted that there was a strong consistent and coherent core that ran through V’s testimony in court, her statement to PW4 and the account that she told PW2 (as told to the court by PW2). Both the account to PW2 and the statement to PW4 occurred contemporaneously on 25 August 2021, just one day after the incident occurred.

64     The accounts were not completely identical. For example, the account that PW2 heard from V appeared to be the briefest and with the least amount of detail, but in all three accounts, V consistently said that:

(a)     The accused had accosted her outside the gate;

(b)     She struggled with him as she entered the gate;

(c)     Whilst inside the premises she was held down by the accused while he touched her breasts and vagina; and

(d)     After he had exited the premises via the gate, he flashed her penis at her.

65     Some of the details about the exact sequence of events before V and the accused were in the bushes were slightly different in the court testimony and in the statement, such as the exact spot outside the estate where V first encountered the accused, whether V had tapped her card when she said that the accused hugged her from the back, whether she recalled him saying any words – these were inconsistencies that the Defence picked up on and submitted that they affected her credibility as a witness. I did not think that these differences ought to have such impact, taking into account allowances to be given for the dynamic situation and the passage of time. Importantly, the general contours of her evidence remained consistent in these separate recounts, and broadly in-line with the accused’s own account of the initial part of their encounter.

66     Apart from these more minor inconsistencies, the Defence argued that V was not credible for a number of other reasons, such as the inconsistency between the injuries sustained and her description of the incident, V’s reaction in the aftermath of the incident, and also how she chose to describe the incident to the unknown car driver and to the doctor, PW3. I considered each of these issues in turn.

67     First, on the injuries sustained by V. The Defence argued that given V’s claim that she had crawled up the staircase, fallen down twice, and struggled with the accused while she was half-lying in the bushes, it was incredible that she only sustained fairly minimal injuries as seen from the medical report and the photographs. It also pointed to the PW3’s evidence that some of the injuries on V appeared to be fresher than others, based on the photographs, as evidence that V must have embellished her evidence about the incident.

68     In my view, this point was neither here nor there. The presence or absence of physical injuries on a person to my mind are not conclusive evidence in itself of whether a physical altercation had taken place, and to be clear this was not a case where there were no injuries noted on V at all. This was also not a case where the Defence was denying any physical altercation at all – by the accused’s own account, he had caused V to fall down as she was near the top of the stairs, and that she fell down again into the planter box.

69     Second, the Defence took issue with how V reacted in the immediate aftermath of the incident when she left the estate to look for a taxi. The Defence argued that this was irrational, since she ought to have stayed instead of leaving home and trying to confront the accused.

70     To be clear, V’s evidence as to why she left the estate shortly after the incident was not that she intended to look for or confront the accused, but to flag a taxi to go to Na Na’s house. She explained that she had been unable to a Grab car and decided to find a taxi along the road instead.[note: 83]

71     In looking at V’s actions in the immediate aftermath of the incident, I think that it is helpful to bear in mind that there is no typical way that a victim of sexual assault can be expected to behave. As the High Court in Public Prosecutor v Yue Roger Jr [2019] 3 SLR 749 observed (at [34]):

“[T]he fact that the Victim was not driven into despair or helplessness was not by itself a ground for disbelief of her evidence. People react in different ways to sexual abuse and may compartmentalise or rationalise their reactions. A calm, undisturbed disposition may generally incline the court to conclude that no wrong was committed, but it is not necessary for a complainant to be distraught for her to be believed.” [Emphasis added]

72     So, the fact that V did not cower and tremble in fear in her room, but decided to step out of her residence was, to my mind, not an indication that she had not been truthful about the incident. In any event, her explanation was still a logical one, in that she wanted to make her way to her friend Na Na’s place at Na Na’s invitation, as she had told Na Na that she was scared.

73     I pause at this point to address the absence of Na Na at the trial, or indeed the lack of any evidence of her existence. PW4, the investigation officer, confirmed that she had not been able to obtain any details about Na Na from V, though she also said that she had not asked V for any call logs. There was also the fact that V had told PW4 during investigations that she had been with Na Na prior to returning home that evening, but at trial claimed that she had been with an entirely different individual. The Defence pointed to these as another indication of the unbelievability of V’s account.

74     I did indeed find it difficult to believe that, in an age of hyper-connectivity, V would be unable to provide any information about Na Na, though I was not in a position to speculate as to why V seemingly refused to provide information about Na Na.

75     However, in assessing the impact of Na Na’s identity on V’s credibility as a witness, I returned to the significance of this person in V’s testimony, which was that she was the first person whom V claimed she related the incident to. However, she was not the only person that V confided in shortly after the incident, since she had also told PW2 about what had happened by the next day, which led to the police report being lodged by the evening of 25 August 2021. As such, whilst V’s testimony about Na Na could not be fully verified or accepted, I did not think that this significantly impacted her overall credibility as a witness.

76     Finally, I considered also what V told the unknown car driver and the examining doctor PW3 about the incident, significantly that she did not tell them that she had been molested. Instead, V said that she told the unknown car driver that she had been robbed, while she told the doctor that she had been assaulted, with no specific mention of sexual assault.

77     When questioned about these accounts that she gave to the driver and the doctor, V said that she had been embarrassed to tell the driver and the doctor about what had happened. She explained that the driver was a man, and as for the doctor, who was a female, she only gave information that the doctor asked for and did not volunteer any additional information.

78     In this connection, I am conscious that in determining if a witness’ evidence is “unusually convincing”, the court must consider the internal and external consistency of the witness’ testimony, and that in telling different things to different persons about what happened to her on 24 August 2021 there was inconsistency in her evidence.

79     However, in my view, V had given satisfactory explanations for why she had given these different accounts to the driver and the doctor. I noted that V had mentioned several times during her testimony that she found the incident to be embarrassing, and that it had taken her a long time to decide to tell PW2 about the incident, since he was also a man. It is understandable and natural for a person to feel a sense of embarrassment and reticence about having been violently molested, and also understandable if V decided that she would not provide the details of the incident to other persons unless it was necessary to do so. Thus, in my view, these inconsistent accounts that she gave to the doctor and the driver ought not to put a dent in her credibility as a witness.

80     Taking all these together, in my view V was overall a credible witness. While there were some significant inconsistencies in her evidence – which I deal with in further detail below – I did not think that V was being deliberately untruthful or that she was seeking to embellish her allegations against the accused, and they did not diminish her credibility as a witness.

The evidence for the section 354A charge

81     The key issue concerning V’s evidence in this case was the inconsistencies in her oral testimony in court and the statement that she gave to PW4. The main inconsistencies that go to the heart of the section 354A charge concerned V’s account of how she was touched on her breasts and her vagina.

82     In court, V said during evidence-in-chief that the accused first used both his hands to grab her breasts, and then used only his right hand.[note: 84] She said that he first touched her breasts over her underwear before he touched her below the underwear. During cross-examination, she said that he had squeezed her breast over the clothing and also slipped his hand under the blouse.[note: 85] She also said in court that he touched her vagina over her underwear before touching the same area under the underwear.[note: 86]

83     In the investigative statement that was recorded from her on 25 August 2021, she said that the accused used both his hands to squeeze both breasts over her short-sleeved shirt and that he touched her vagina over her panties. The statement did not contain any reference of touching the breasts under the blouse or the vagina underneath the underwear (“under-clothing touches”).

84     The explanation that V put forth in court for this omission was that she did tell the recorder about the under-clothing touches, and that the recorder mistakenly left this out from the statement, which the Prosecution accepted – and I agreed – was likely not the case given PW4’s experience as an Investigative Officer. The Prosecution instead relied on the fact that PW4 had not specifically asked V whether she had also been touched beneath her clothing to account for the absence of any reference to the under-clothing touches in the statement.

85     I accepted that on the evidence, there were inconsistencies in the description of how the touching of the breasts and vagina occurred that had not been satisfactorily resolved or explained. However, I would add that, in my view, the versions whilst inconsistent were not contradictory or incompatible, since what was in the statement was affirmed by V in court, albeit with the addition of further details. I also did not think that these inconsistencies were indicative of a witness who was being deliberately untruthful or seeking to embellish her evidence.

86     It was clear from the evidence that this was for V a chaotic and unpleasant experience with a stranger who accosted her out of the blue in the wee hours of the morning in a foreign country, and I agreed with the Prosecution that allowance must be given for a witness’ ability to recount events given these circumstances. It was also possible that a sense of shame and embarrassment can cause reticence in revealing the full details of an incident, which V herself alluded to several times in her evidence, e.g. when explaining why she told the driver that she was robbed, when asked about why she did not reveal details of the incident to the doctor, when she talked about deliberating whether to tell PW2 about the incident.

87     Allowance must also be given for the passage of time and how that affects a witness’ recollection and perception of events, as well as issues of nuances in translation from another language to English.

88     To my mind, any of these reasons can reasonably account for variances between in a witness’ contemporaneous recollection of an event and her recollection two years after the event. In this regard, I note that the credibility of a witness is a separate issue from the reliability of an account (see Public Prosecutor v GCK [2020] 1 SLR 486) and reiterate the point made earlier that she was, in my view, a credible witness who has no reason to give false testimony against a complete stranger.

89     On the issue of the reliability of her evidence, I did not think that this was a situation where, as the Defence suggested, V could have been mistaken about what had happened to her. It is quite difficult to see how a person can be mistaken about having her breasts squeezed and her vagina touched, particularly since the Defence accepted that V was not mistaken about a number of other things that evening, such identifying that the accused was the person who had followed her and then accosted her, and that she fell down once at the staircase of the estate and a second time into the planter box.

90     While there were aspects of V’s testimony – specifically that she was touched underneath her clothing – which I found evidentially difficult to accept given the lack of a satisfactory explanation in the evidence for the inconsistencies, I did not think that this was reason to disregard the entirety of her evidence as being unreliable. This was because of the consistent core running through the accounts that V gave to PW2, PW4 and to the court – all of which state that the accused squeezed her breasts, and then touched her vagina.

91     For these reasons, I had no difficulty accepting her evidence within the consistent core that ran through her testimony in court, and what she had said contemporaneously in her statement and to PW2, that she had been squeezed on her breasts and touched at her vagina, albeit without references to the under-clothing touches.

92     As for the element of the charge under section 354A that relates to the wrongful restraint of V by the accused, which the Prosecution has particularised with the words “pinned her down”, V had initially said during her evidence-in-chief that she had been pinned down by the accused while she was in the bushes.

93     Under section 339 of the Penal Code, the element of “wrongful restraint” is defined as follows:

Whoever voluntarily obstructs any person, so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

94     However, during cross-examination, she said that she had not been “pinned down”, which she explained to mean that his body was not resting on her though she maintained that she had been unable to move because his body was bent over above hers while she was half-lying down in the plants.

95     In my view, what V described satisfied the definition of wrongful restraint in section 339 in the sense that the accused had prevented V from moving away from the planter box since he had voluntarily placed himself in a position over her. However, given her evidence, in my view it was more appropriate to describe this as her having been blocked from moving by the accused’s body.

The evidence for the obscene act charge

96     Turning to the charge for doing an obscene act, the Defence did not dispute that V had scolded the accused as he walked away from the gate, and that he turned around in response to her scolding and reacted with a crude gesture, with the only dispute being what that gesture was.

97     As I indicated earlier, I did not think that the inconsistencies in the evidence on the section 354A charge discredited V as a witness nor the reliability of her testimony. The account that V gave in court about how she scolded the accused after he had left and the gate had closed, and how he then turned back to expose his penis to her was textured, coherent and consistent and I had no difficulty accepting her evidence in this regard.

Assessment of the accused’s evidence

98     The central plank of the accused’s Defence was the claim that he had mistaken V for Xiaoling, which caused him to follow V and try to grab onto her. He denied

99     While the Defence took issue with the lack of evidence that V’s friend Na Na existed, it faced a similar predicament of its own in the lack of evidence as to the existence of Xiaoling. While the accused was able to put forward a number of exhibits to corroborate his testimony on issues such as his leave plans and his car parking, there was noticeably nothing put forward to corroborate his testimony on Xiaoling to address the questions of whether she existed, and the debt that she owed to him. It appeared from his testimony that his wife would have been able to corroborate his testimony about Xiaoling, but he did not call her as a witness.

100    Even if I were to accept that Xiaoling existed, which I did not have any clear basis for, I found that his entire course of conduct in following V and then physically accosting her as she entered the condominium premise was at odds with his claim that this was a person who he thought owed him money. If he was indeed concerned with getting Xiaoling to return the money that she had borrowed from him, it seemed logical to me that he would try to quickly ascertain her identity and ask her about the returning the money.

101    Yet by the accused’s own account, he only asked her once in the entire incident if she was Xiaoling, which was at the point when he first caught up to her in front of the gate. From his account, there also appeared to have been no mention at all by him during the entire interaction when he mentioned the loan, even though that was ostensibly the main reason why he had gone through the trouble of approaching her.

102    He also claimed that he could not ascertain if she was Xiaoling because of the mask on her face, but there seemed to have been no attempt by him to have the mask removed so that he could visually identify the person.

103    When she started scolding him after he left the condominium, again he made no attempt to ascertain her identity or to bring up this outstanding debt that he was supposedly aggrieved by but claims that he only made a rude gesture before walking away.

104    This version of events put forward by the accused was to my mind unconvincing, and accordingly I rejected it.

Decision on the charges

105    For the reasons I set out above, I was satisfied on the evidence that:

(a)     The accused did touch V’s breasts and vagina, and in order to do so, he blocked her from moving with his body, and

(b)     The accused did expose his penis to V whilst standing at the road in front of the estate, which is a public place.

106    Accordingly, I amended the section 354A charge to remove the reference to skin-to-skin touch and to change the “pinned her down” to “blocked her from moving with your body” and convicted the accused on both charges.

Sentencing

Prescribed punishments

107    Under section 354A(1) of the Penal Code, an offender convicted of an offence of outrage of modesty while voluntarily causing restraint is one that shall be punished with imprisonment for a term of not less than 2 years and not more than 10 years, and with caning.

108    As for the obscene act charge, section 294(a) of the Penal Code provides that this is punishable by imprisonment for a term which may extend to 3 months, or with a fine, or both.

Prosecution’s submissions

109    The Prosecution sought a global sentence of between 4.5 to 5 years’ imprisonment with 6 strokes of the cane.

110    For the section 354A charge, the Prosecution referred to the sentencing framework set out by the High Court in Public Prosecutor v BDA [2018] SGHC 72 (“BDA”), which in turn was based on the sentencing approach set out in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”).

111    The Prosecution argued that all three offence-specific factors identified in the BDA framework and GBR approach were present in this case, specifically that:

(a)     There was a high degree of sexual exploitation, as the accused touched both the breasts and vagina, albeit over the clothes.

(b)     The circumstances of the offence were aggravated in that the accused targeted a woman walking home alone at night and attacked her within the premises of her home. There was some degree of premeditation in that the accused admitted to trailing her to the gate and attacked her there, even before the act of molestation.

(c)     There was harm to the victim in the form of both physical injuries and psychological impact.

112    The Prosecution argued that this ought to place the present case at Band 2, with a starting point of at least 4.5 years’ imprisonment with 6 strokes of the cane under the BDA framework.

113    It also argued that a further uplift was warranted in light of the manner in which the Defence was conducted, citing the case of Public Prosecutor v Rengasamy Manikandan [2021] SGDC 122 (“Rengasamy”), where the court considered it aggravating that the offender there had “spun an entire fairy tale in court” and “maintained a patently untenable defence in the face of overwhelming evidence”. The Prosecution submitted that the Defence’s case that the accused had mistaken V for Xiaoling and insisting that V had misconceived and embellished the entire incident was precisely such a defence.

114    As for the obscene act charge, the Prosecution sought a custodial sentence, with length left to the Court, which they submitted should run concurrently with the sentence for the section 354A charge.

115    The case of Public Prosecutor v M Udayaah [2017] SGDC 209 was cited, where the court sentenced the offender to 2 weeks and 1 month imprisonment for two charges under section 294(a) of the Penal Code. Based on the Statement of Facts that the Prosecution retrieved, the offender in that case had exposed his penis to a 16-year-old girl on a bus and on another occasion exposed the top of his penis to a 33-year-old female in a shop.

116    The Prosecution highlighted that the accused in this case exposed his penis to V at the end of what had already been a harrowing experience for her, which had the effect of prolonging her distress. It thus submitted that a custodial sentence was warranted in the circumstances, though recognising that both offences were committed in the same transaction, the Prosecution did not object for both sentences to run concurrently.

Defence’s submissions

117    In relation to the section 354A charge, the Defence similarly referred to the sentencing framework in BDA, though it submitted that the present case fell at the lowest end of Band 1 of the framework because there were no (or at most one) offence specific aggravating factors, specifically that:

(a)     The degree of sexual exploitation was non-existent and/or not high as there was no skin-to-skin contract, and all touches were flitting and over the clothing;

(b)     The victim sustained hardly any and/or only minor injuries in the form of small cuts/bruises on her legs;

(c)     There was no evidence of premeditation on the part of the accused, as seen from the evidence that he had gone to his car to place parking coupons;

(d)     The victim was not a minor; and

(e)     There was no abuse of trust and the incident did not occur within a confined space.

118    As for the obscene act charge, the Defence submitted for a benchmark fine of $2,000, arguing that the obscene act in this case was witnessed by V alone for a fleeting moment, with no physical harm caused to V.

119    The Defence highlighted that the accused had no prior convictions and had served for almost 20 years in the Singapore Armed Forces, from which he had been suspended since investigations began. It asked that the court impose the lowest possible sentences permissible by law on both the charges.

Reasons for the sentences imposed

The section 354A charge

120    On the s354A PC charge, both parties agree that the applicable sentencing framework is set out in the High Court decision of BDA, which adopted an adapted GBR approach for s354A offences, though they diverged on which sentencing band the present case fell under.

121    In my view, the present case ought to be placed at Band 2, which is for cases where there are two or more aggravating factors. Band 1, on the other hand, is for cases where there is no or only one aggravating factor.

122    The main offence-specific factor present in this case was the degree of sexual exploitation. I agreed with the Prosecution that there was a significant degree of exploitation. Even though I found that the evidence supported only an intrusion over the clothing of the victim, the intrusion was to her private parts at both her breasts and the vagina. This was not a case of low level of sexual exploitation, as the Defence had argued.

123    As for the circumstances of the offence, I accepted that this was not a premeditated offence. The accused and V were unknown to each other before this incident and the offence appears to have been committed rather opportunistically by the accused when he spotted V on that fateful evening after he had placed the parking coupons in his car.

124    There was some use of force, in the sense that the accused had accosted the victim outside the condominium and engaged in a physical struggle with V who tried to get away from him. However, I did not give this full weight as a standalone offence specific factor, since the offence under s354A already provides enhanced penalty for offences committed with an element of restraint, which I was satisfied had been established on the evidence. There was thus a need to ensure that there was no double counting of this element of force against the victim in the commission of the offence.

125    The victim sustained some minor physical injuries in the physical altercation with the accused, and she said that she also suffered psychologically. I agreed that these were also relevant as an offence-specific factor.

126    Putting these factors, I agree with the Prosecution that this case would be properly placed within Band 2 of the GBR framework, which under the BDA sentencing bands would attract between 4 to 7 years imprisonment with 6 strokes of the cane, with the appropriate starting point being at the lower end of the band.

127    Moving on to the next stage of the sentencing approach, I did not think that any further adjustments were necessary to account for offender specific factors. As for the accused’s conduct of his case, while I had rejected the version of events that he presented, I did not think that this necessarily warranted the uplift that the Prosecution sought from the starting point. The case of Rengasamy that was cited in support of this argument was quite distinct and aggravated because the offender presented a fanciful defence in the face of clear and objective evidence in the form of CCTV footage, which I did not think was comparable to the situation in the present case.

128    In the circumstances, I sentenced the accused to 4 years imprisonment with 6 strokes of the cane on the section 354A charge.

The obscene act charge

129    As for the obscene act charge, I noted that the usual sentence for such an offence is ordinarily a fine.

130    In the present case, the accused’s conduct in flashing his private parts at V was part of his overall conduct of insulting and antagonizing V. This was essentially an act of adding insult to the earlier injury caused when he had committed the offence in the section 354A charge.

131    In that context, I agreed with the Prosecution that the custodial threshold had been crossed and imposed a sentence of 1 week’s imprisonment on the obscene act charge.

Concurrent sentences

132    As for the issue of consecutive sentences, I agreed with the Prosecution that both sentences should run concurrently since they essentially formed a single transaction.

Conclusion

133    For the reasons set out above, the accused was convicted on the charges and sentenced to a global sentence of 4 years imprisonment and 6 strokes of the cane.

134    A stay of execution was granted on the imprisonment term and the caning. The accused is presently on bail pending appeal.

[note: 1]Scene photographs as set out in exhibit P2

[note: 2]See paragraph 3 of A1, Statement of Agreed Facts

[note: 3]Exhibit P4

[note: 4]Notes of Evidence (“NEs”) on 10 October 2023, page 8, line 31

[note: 5]Ibid, page 10, line 14

[note: 6]Ibid, page 9, line 1 to 3

[note: 7]Ibid, page 10, line 19; page 21, line 20

[note: 8]As shown in photograph 5 of exhibit P2

[note: 9]Ibid, page 10, line 7

[note: 10]Ibid, page 11, line 30 to page 12 line 4

[note: 11]Ibid, page 11, line 27 and page 12, line 5

[note: 12]NEs on 10 October 2023, page 12, line 7 to 24

[note: 13]As shown in photograph 7 of exhibit P2

[note: 14]NEs on 10 October 2023, page 12 line 29

[note: 15]Ibid, page 13, line 6 to 23

[note: 16]As shown in photograph 9 of exhibit P2

[note: 17]NEs on 10 October 2023, page 20 line 11 to 15; page 21, line 1

[note: 18]Ibid, page 58, line 23

[note: 19]Ibid, page 61, line 3

[note: 20]Ibid, page 14, line 30

[note: 21]Ibid, page 15, line 8

[note: 22]Ibid, page 20, line 18

[note: 23]Ibid, page 20, line 21

[note: 24]Ibid, page 18, line 25; page 22, line 17 to 19

[note: 25]Exhibit D1

[note: 26]NEs on 11 October 2023, page 38, line 25

[note: 27]Ibid, page 39, line 6 to 20

[note: 28]NEs on 10 October 2023, page 21, line 4

[note: 29]Ibid, page 21, line 21

[note: 30]Ibid, page 23, line 17 to page 24, line 7

[note: 31]Ibid, page 25, line 1

[note: 32]Ibid, page 25, line 5 to 11

[note: 33]Ibid, page 25, line 19; page 26, line 21; exhibit P4-1

[note: 34]Ibid, page 27, line 17 to 26; exhibit P4-2

[note: 35]Ibid, page 28, line 26 to page 29, line 5

[note: 36]Ibid, page 29, line 7 to 24; exhibit P1

[note: 37]Ibid, page 30, line 27

[note: 38]Exhibit P3

[note: 39]Ibid, page 31, line 16

[note: 40]Ibid, page 32, line 10 to page 33, line 3

[note: 41]NEs on 11 October 2023, page 46, line 8 to 19

[note: 42]Ibid, page 48, line 17 to page 49, line 9

[note: 43]Ibid, page 49, line 19 to page 50, line 2

[note: 44]Ibid, page 50, line 24 to page 51, line 17

[note: 45]Ibid, page 51, line 19

[note: 46]Ibid, page 50, line 4 to 11

[note: 47]Ibid, page 52, line 11

[note: 48]Ibid, page 52, line 17 to 26

[note: 49]Ibid, page 53, line 21

[note: 50]Ibid, page 54, line 9

[note: 51]Ibid, page 53, line 26 to page 54, line 6

[note: 52]Ibid, page 54, line 29 to page 58 line 22

[note: 53]Ibid, page 58, line 27

[note: 54]Ibid, page 60, line 26

[note: 55]Exhibit D2

[note: 56]NEs on 8 January 2024, page 5, line 4; exhibit D3

[note: 57]Exhibit D4

[note: 58]Exhibit D5A, D5B, D5C, D5D, D5E; location of car marked ‘X’ on D6

[note: 59]Ibid, page 15, line 8 to 30

[note: 60]Exhibit D9

[note: 61]Ibid, page 16, line 1 to page 18, line 3

[note: 62]Ibid, page 22, line 1

[note: 63]Ibid, page 18, line 4

[note: 64]Ibid, page 18, line 22

[note: 65]Ibid, page 18, line 28 to page 20, line 13

[note: 66]Ibid, page 25, line 24

[note: 67]Ibid, page 20, line 25 to page 21, line 23

[note: 68]Ibid, page 22, line 19 to page 23, line 6

[note: 69]Ibid, page 24, line 1

[note: 70]Ibid, page 24, line 21 to 32

[note: 71]Ibid, page 43, line 1

[note: 72]Ibid, page 26, line 15 to 27

[note: 73]Ibid, page 52, line 21 to page 5, line 23

[note: 74]Ibid, page 28, line 1 to 20

[note: 75]Ibid, page 28, line 21 to page 29, line 8

[note: 76]Ibid, page 30, line 10 to page 31, line 6

[note: 77]Ibid, page 31, line 7 to page 32, line 4

[note: 78]Ibid, page 53, line 24

[note: 79]Ibid, page 34, line 1 to page 35, line 25

[note: 80]Ibid, page 36, line 1

[note: 81]NEs on 8 January 2024, page 71, line 12

[note: 82]Defence’s Closing Submissions at [95]

[note: 83]NEs on 10 October 2023, page 67, line 20

[note: 84]NEs on 10 Oct 2023, page 20, line 18

[note: 85]NEs on 10 Oct 2023, page 18 line 3; NEs on 11 Oct 2023, page 39, line 12

[note: 86]NEs on 10 Oct 2023, page 20, line 1; NEs on 11 Oct 2023, page 39 line 12

"},{"tags":["Criminal Law – Criminal Procedure and Sentencing – Consumption of controlled drugs under section 8(b)(ii) and punishable under section 33A(2)of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Sentencing"],"date":"2024-09-16","court":"District Court","case-number":"District Arrest Case no.903360-2020 and others, Magistrate's Appeal No. 9158-2024-01","title":"Public Prosecutor v Mohammad Ariff Bin Jamaludin","citation":"[2024] SGDC 236","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32162-SSP.xml","counsel":["Deputy Public Prosecutor Ms Quek Lu Yi for the Public Prosecutor","Defence Counsel Teo Choo Kee (M/s C K Teo & Co) for the Accused."],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Eddy Tham","html":"Public Prosecutor v Mohammad Ariff Bin Jamaludin

Public Prosecutor v Mohammad Ariff Bin Jamaludin
[2024] SGDC 236

Case Number:District Arrest Case no.903360-2020 and others, Magistrate's Appeal No. 9158-2024-01
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Eddy Tham
Counsel Name(s): Deputy Public Prosecutor Ms Quek Lu Yi for the Public Prosecutor; Defence Counsel Teo Choo Kee (M/s C K Teo & Co) for the Accused.
Parties: Public Prosecutor — Mohammad Ariff Bin Jamaludin

Criminal Law – Criminal Procedure and Sentencing – Consumption of controlled drugs under section 8(b)(ii) and punishable under section 33A(2)of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9158/2024/01.]

16 September 2024

District Judge Eddy Tham:

Background

1       This is the accused’s appeal against sentence in respect of three charges, namely one charge DAC 903360-2020 for an offence of consumption of a specified drug under section 8(b)(ii) and punishable under section 33A(2) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“the Act”) and two charge, DAC 915381-2022 and DAC 917181-2022, for offences of possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Act.

2       The Accused was initially charged on 2 counts for trafficking in controlled drugs. For one charge, the amount of cannabis alleged to have been trafficked was not less than 499.99 grams and he would have been liable to be punished with not less than 20 years’ imprisonment, if convicted. For the other charge, the amount of diamorphine trafficked was alleged to be not less than 17.95g, for which the Accused was facing a death penalty. However, both charges were subsequently reduced to one for possession of controlled drug and the Accused had thereafter pleaded guilty to these charges.

3       The Accused also admitted to and consented for nine possession charges, one consumption charge, one possession of drug utensil charge and three failure to report for urine test charges to be taken into consideration.

4       I sentenced the Accused to 8 years’ imprisonment and 6 strokes of the cane for the consumption charge and 8 years’ imprisonment for each of the possession charges. I further ordered the sentence for the consumption charge to run consecutively with one of the sentences for the possession charge, giving a total sentence of 16 years’ imprisonment and 6 strokes of the cane.

5       The Accused being dissatisfied with the sentence has filed an appeal against it. He is presently serving his sentence.

The Charges

6       The three charges which Accused pleaded guilty to are set out here in full:

DAC 903360-2020

… you, on or about 24 August 2018, in Singapore, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, (Chapter 185, 2008 Rev Edition) (“MDA”), to wit, Morphine, without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA, and further, that you, before the commission of the said offence, had been convicted, on 12 May 2004, in the District Court, No. 4 (vide DAC18510/2004), for an offence of Consumption of a Specified Drug, to wit, Morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Chapter 185, 2001 Rev Edition) (“MDA 2001”) and punishable under s 33A(1) of the MDA 2001, and sentenced to 5 years and 3 months’ imprisonment with 3 strokes of cane, for which conviction and punishment has not been set aside, and that you are thereby liable for enhanced punishment under s 33A(2) of the MDA;

DAC 915381-2022

… you, on 24 August 2018 at or about 8.25am, at Block 782D Woodlands Crescent “xxx”, Singapore, did possess a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, four blocks containing not less than 499.99g of vegetable matter, which was analysed and found to be cannabis, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) of the MDA, and further, that you, before the commission of the above offence, had been convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside, and you are thereby liable for enhanced punishment under s 33(1) of the MDA;

and

DAC 917181-2022

… you, on 24 August 2018 at or about 8.25am, at Block 782D Woodlands Crescent “xxx”, Singapore, did possess a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, one packet and two bundles containing not less than 2254.7g of granular/ powdery substance which was analysed and found to contain not less than 14.99g of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) of the MDA, and further, that you, before the commission of the above offence, had been convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside, and you are thereby liable for enhanced punishment under s 33(1) of the MDA..

The Statement of Facts

Background facts

7       The Accused is a 41-year-old male Singaporean.

8       The co-accused persons are:

a.     Abdul Rahim bin Ahamed (“Ahamed”), a 53-year-old male Singaporean; and

b.     Abdul Rahim bin Ramli (“Ramli”), a 49-year-old male Singaporean.

9       On 24 August 2018, at about 8.25am, a group of officers from the Central Narcotics Bureau (“CNB”) arrested Ramli and the Accused at their residence at Block 782D Woodlands Crescent “xxx”, Singapore (“the Woodlands Unit”).

10     Separately, at about 9.14am on the same day, a group of officers from the CNB arrested Ahamed at his residence at Block 264 Jurong East Street 24 “xxx”, Singapore.

11     A search of the Woodlands Unit was conducted, and the following items, amongst others, were seized:

S/N

Exhibit Description

Exhibit Marking

1

One packet containing granular/powdery substance

A1A1

2

One bundle containing granular/powdery substance

A1B

3

One bundle containing granular/powdery substance

A1C

4

One block containing vegetable matter

H1A1-1

5

One block containing vegetable matter

H1A1A

6

One block containing vegetable matter

H1B-1

7

One block containing vegetable matter

H1B1A



12     The Accused, Ramli, and Ahamed were subsequently escorted to CNB Headquarters at Central Police Divisional Headquarters.

Facts relating to the 2nd Charge (DAC-917181-2022): Enhanced possession

13     The exhibits marked “A1A1”, “A1B” and “A1C” were individually sealed in tamper-proof bags and submitted to the Health Sciences Authority (“HSA”) for analysis on 27 August 2018.

14     On 19 December 2018, an analyst from HSA issued certificates stating that the exhibits “A1A1”, “A1B” and “A1C” were found to be as follows:

(a)     A1A1 - One packet containing not less than 450.6g of granular/powdery substance which was analysed and found to contain not less than 4.13g of diamorphine;

(b)     A1B - One black bundle containing not less than 901.7g of granular/powdery substance which was analysed and found to contain not less than 7.70g of diamorphine; and

(c)     A1C - One black bundle containing not less than 902.4g of granular/powdery substance which was analysed and found to contain not less than 6.12g of diamorphine.

15     Therefore, the three exhibits were found to be one packet and two bundles containing a total of not less than 2254.7g of granular/ powdery substance were analysed and found to contain not less than 14.99g of diamorphine (“the Drugs”).

16     During investigations, it was established that Ramli was acting under the instructions of the Accused. The Accused, Ramli and Ahamed communicated with one another via phone call and text messages.

17     Both the Accused and Ramli resided in the Woodlands Unit. The Accused would occasionally provide “panas” and “sejuk” (the street name for diamorphine and methamphetamine respectively) to Ramli.

18     Sometime in May 2018, Ahamed lost his job. As he was in financial difficulties, Ahamed agreed to work as a driver for the Accused. The Accused told Ahamed that his job scope was to drive to various places to collect items and to pass these items to him. The Accused informed Ahamed to rent a car under his name and told Ahamed that he would pay for the rental and petrol.

19     Ramli had previously confided in the Accused that he was in financial difficulties and was in debt. Sometime in August 2018, the Accused approached Ramli and offered him a job. The Accused told Ramli that his job scope was to collect items for him in exchange for $200. Ramli agreed.

20     On 24 August 2018, at about 6.00am, Ramli arrived at Ahamed’s residence. Ramli passed Ahamed a bundle wrapped with tape, which Ramli had received from the Accused. They then left Ahamed’s residence for Third Lok Yang Road at about 6.45am, after receiving instructions from the Accused to do so.

21     Ramli and Ahamed proceeded to Third Lok Yang Road in separate vehicles. Ahamed drove a red Toyota Vios bearing registration number SKW3761R, while Ramli followed behind in a white van bearing registration number GBH2032D.

22     At about 7.15am, Ramli and Ahamed arrived at a carpark at Third Lok Yang Road. An unknown Indian man, riding a motorbike bearing a Malaysian registration number, then passed a plastic bag (which contained the Drugs) to Ahamed, while Ahamed handed over the bundle he had earlier received from Ramli.

23     Ahamed placed the said plastic bag on the front passenger seat of his vehicle. Ahamed then called the Accused and informed him that he had collected the Drugs. He was informed by the Accused to hand over the Drugs to Ramli. Ramli and Ahamed then spoke on the phone and agreed to meet at a separate location.

24     Ramli and Ahamed then proceeded to the open carpark at Block 935 Jurong West, Singapore. When they arrived at the carpark, Ahamed passed the plastic bag containing the Drugs to Ramli.

25     Ramli proceeded to the Woodlands Unit with the Drugs in his van. At about 7.30am, Ramli reached the carpark next to Block 782D Woodlands Crescent. Ramli was in possession of the Drugs at this time.

26     After he had parked his van and as he was leaving his van, he realised the plastic bag containing the Drugs was torn. Ramli removed the Drugs from the plastic bag and placed them in a blue bag.

27     Ramli carried the blue bag containing the Drugs to the Woodlands Unit. He noticed that the door to the Accused’s bedroom was locked and knocked on the door. He then placed the blue bag outside the Accused’s bedroom door.

28     The Accused knew that the Drugs were diamorphine and was in possession of the Drugs. He intended to traffic the Drugs.

29     Diamorphine is a Class A controlled drug listed in the First Schedule to the MDA.

30     The Accused was not authorised under the MDA or the Regulations made thereunder to possess diamorphine. The Accused has thereby committed an offence under s 8(a) of the MDA.

31     Further, before the commission of the above offence, the Accused was convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside. The Accused is thereby liable for enhanced punishment under section 33(1) of the MDA.

32     On 4 September 2023, Ahamed was sentenced to, inter alia, eight years’ imprisonment for possession of not less than 17.95g of diamorphine under s 8(a) of the MDA, punishable under s 33(1) of the MDA. On 13 December 2023, Ramli was sentenced to, inter alia, eight years’ imprisonment for a similar charge.

Facts relating to the 1st Charge (DAC-915381-2022): Enhanced possession

33     The four exhibits marked “H1A1-1”, “H1A1A”, “H1B-1” and “H1B1A” were individually sealed in tamper-proof bags and submitted to the HSA for analysis on 27 August 2018.

34     On 20 December 2018, an analyst from HSA issued certificates stating that the four exhibits were found to be as follows:

(a)     H1A1-1 - One block containing, inter alia, not less than 253.4g of vegetable matter which was analysed and found to be cannabis;

(b)     H1A1A - One block containing, inter alia, not less than 27.63g of vegetable matter which was analysed and found to be cannabis;

(c)     H1B-1 - One block containing, inter alia, not less than 224.5g of vegetable matter which was analysed and found to be cannabis; and

(d)     H1B1A - One block containing, inter alia, not less than 39.40g of vegetable matter which was analysed and found to be cannabis.

35     Therefore, the exhibits “H1A1-1”, “H1A1A”, “H1B-1” and “H1B1A” were found to be four blocks containing, inter alia, a total of not less than 499.99g of vegetable matter, which were analysed and found to contain cannabis.

36     The Accused was in possession of these four blocks of cannabis and knew that the four blocks were cannabis. He intended to traffic the cannabis.

37     Cannabis is a Class A controlled drug listed in the First Schedule to the MDA.

38     The Accused was not authorised under the MDA or the Regulations made thereunder to possess cannabis. He has thereby committed an offence under s 8(a) of the MDA.

39     Further, before the commission of the above offence, the Accused was convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the MDA 2001, and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside.

40     The Accused is thereby liable to for enhanced punishment under section 33(1) of the MDA.

Facts relating to the 4th Charge (DAC-903360-2020): LT-2 consumption

41     After his arrest, the Accused was escorted to CNB Headquarters. He provided two bottles of his urine samples, which were sealed in his presence.

42     The urine samples were sent to the HSA on 27 August 2018 for analysis. The HSA subsequently issued two certificates on 29 and 30 August 2018 under s 16 of the MDA stating that stating that on analysis, the said urine sample was found to contain morphine.

43     Morphine is a Specified Drug listed in the Fourth Schedule to the MDA.

44     Morphine is a known metabolite of diamorphine. The morphine found in the Accused ’s urine samples was therefore a result of the Accused’s consumption of diamorphine.

45     The Accused admitted to consuming heroin (street name for diamorphine) to help him relax. He admitted to consuming 1 to 1.5 packets of heroin per day, with each packet containing about 8g of heroin.

46     The Accused was not authorised under the MDA or the Regulations made thereunder to consume morphine and he has thereby committed an offence under s 8(b)(ii) of the MDA.

47     Further, before the commission of the said offence, the Accused had been convicted on 12 May 2004 in the District Court No. 4 (vide DAC18510/2004) for an offence of consumption of a Specified Drug, to wit, morphine, under s 8(b)(ii) of the MDA 2001 and punishable under s 33A(1) of the same Act, and sentenced to 5 years and 3 months’ imprisonment with 3 strokes of cane, for which conviction and punishment has not been set aside.

48     The Accused is thereby liable for enhanced punishment under s 33A(2) of the MDA.

49     Following his arrest on 24 August 2018, the Accused was produced in State Court 26 on 25 August 2018. Ariff has been in remand since 25 August 2018.

50     The Accused’s sentence has been ordered to be backdated to the date of his arrest on 24 August 2018.

Antecedents

51     The Accused has a long list of antecedents. The Accused started off his court intervention in 1998 with probation being imposed for theft-related offences. He also had a few obscene films offences a few years later. The relevant antecedents would however be his drug records which began in 2000.

52     The Accused had two admissions into Drug Rehabilitation Centre, first on 23 March 2000 and again on 15 February 2002. On top of that, he was placed under drug supervision on 4 occasions in 2001, 2003, 2009 and 2017.

53     His drug convictions are as follows:

12 May 2004:

(a)     Trafficking in controlled drugs, sentenced to 5 years and 3 months’ imprisonment with 6 strokes of the cane;

(b)     Unauthorised possession of controlled drug, sentenced to 18 months (consecutive);

(c)     Consumption of a specified drug, sentenced to 5 years and 3 months’ imprisonment with 3 strokes of the cane (concurrent);

(d)     Failure to report for urine test, sentenced to 6 months’ imprisonment (consecutive); and

12 July 2012:

(e)     Consumption of a specified drug, sentenced to 7 years and 6 months with 6 strokes of the cane.

The Prosecution’s Submission on Sentence

54     The Prosecution sought a global sentence of 16 to 18 years and 6 months’ imprisonment and 6 strokes of the cane.

55     The Prosecution submitted for a sentence of between 8-10 years for each of the two unauthorised possession charges. For the consumption charge, Prosecution submitted for a sentence of between 8 years and 8 and a half years with 6 strokes of the cane and for this sentence to run consecutively with one of the sentences for the unauthorised possession charge.

56     For the unauthorised possession charges, the Prosecution highlighted the following factors:

(a)     The amount of diamorphine and cannabis being in possession by the Accused respectively is large, at just under the capital threshold.

(b)     The Accused was in possession of the drugs not just for his own consumption but also for trafficking.

(c)     The Accused was heavily traced for similar offences, including trafficking, and has nine similar enhanced possession charges taken into consideration.

(d)     The co-accused persons were both sentenced to 8 years’ imprisonment for their respective charges. The Accused is more culpable than the co-accused persons in that he was the coordinator of the transaction as borne out by the Statement of Facts.

57     In respect of the consumption charge, the Prosecution submitted for 8 years’ to 8 years’ and 6 months’ imprisonment with 6 strokes of the cane on the principle of escalation. This was because in 2012, the Accused had already been sentenced to 7 years’ and 6 months’ imprisonment with 6 strokes of the cane for an enhanced consumption offence punishable under section 33(A)(2) of the Act commonly known as an LT2 charge, for which he was sentenced to 7 years and 6 months with 6 strokes of the cane.

58     The Prosecution then submitted for the sentences for the 2nd and 4th charges to run consecutively to reflect the higher culpability of the Accused, in comparison with the other 2 co-accused persons.

Mitigation

59     In mitigation, the Defence counsel highlighted that the Accused had a promising start. He had secured GCE O’ level passes in 7 subjects and had enrolled into Temasek Polytechnic, Unfortunately, he fell prey to drugs time and again whenever he was faced with stresses and did not manage to overcome his drug addiction. However, for the past 6 years in remand, he had reflected deeply on what had happened. He is remorseful and regretful that he would not have much time to spend with his mother who has provided moral support to him . During this time, the Accused had taken up course in self-improvement, attended religious classes while in prison. He had also formally renounced his gang affiliations.

60     In respect of the sentence, the Defence Counsel agreed in general with the proposed sentences by the Prosecution save that they should be adjusted downwards to take into account the totality principle. It was thus submitted for a sentence of 7 years for each enhanced possession charge and 7 years and 6 months for the LT2 drug consumption charge giving an overall sentence of 14 years and 6 months of imprisonment.

61     The Defence Counsel submitted that a normal sentence for the most serious of offences which was the LT2 enhanced drug consumption charge which carried a maximum of 13 years would be 7 to 8 years. Thus a sentence of 16 years would be substantially above the normal level and would be a crushing sentence for the Accused.

62     He added that the sentence proposed by the Defence would also be keeping with the prospects that he had shown by the steps he had taken to reform himself for the past few years and would not dash his hopes.

REASONS FOR THE SENTENCE

The sentencing principle

63     The Defence does not appear to object to the individual sentences proposed by the Prosecution and hence the main contention in this case would be how the ‘totality principle’ should be applied in adjusting the individual sentences to reach the global sentence.

64     The totality principle has been enunciated in the case of Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 at [47] as ”a principle of limitation and is a manifestation of the requirement of proportionality that runs through the gamut of sentencing decisions”.

65     It has also been held that the totality principle is a consideration that is applied at the end of the sentencing process. It has been coined as taking “a last look” to see whether the sentence looks wrong or if the effect is crushing.

66     In applying this principle, the Court must first determine the appropriate individual sentences for each of the offences. Once that is done, the Court then can look at the overall sentence when the sentences are aggregated to see whether any adjustments need to be made to the individual sentences in order to “arrive at an aggregate that it thinks is proportionate to the culpability of the offender and which is just in all the circumstances”: PP v BAB [2017] 1 SLR 292 at [61].

67     I next turn to the reasoning for the individual sentences.

Sentencing of the enhanced possession charges

68     In respect of the possession offence, the first pivotal factor would be the amount of drugs. In this case, the quantity of drugs in both charges is huge. Even though the Accused has been charged for possession a lesser amount of 14.99 grams, factually, the amount of diamorphine that was seized was 17.95 grams. As for the cannabis, the amount was equally large. He was charged with being in possession of 499.99 grams of cannabis but factually the amount seized was 544.93 grams. As an indication of the significance of the amount of drugs, had the Accused been charged for trafficking for the amounts stated in the respective charges, he would have faced a minimum of 20 years’ imprisonment for each charge. This factor of quantity alone would have placed the Accused near the maximum end of the sentencing spectrum for this offence which would be towards 10 years’ imprisonment.

69     The second critical factor would be the purpose for the possession. In this case, the Accused had admitted that his possession for both drugs were for the purpose of trafficking.

70     The third factor would be that of culpability. In this case, the Accused had displayed high culpability in respect of the diamorphine charge. Both co-accused persons were acting under his instructions in the collection and transporting of the Drugs to the Woodlands unit. In terms of parity of sentencing, the Accused based on his role as the orchestrator of the offence, ought to be punished much higher than the sentences meted out to both co-accused persons. Even though the co-accused persons had been convicted with being in possession of a higher amount of drugs, which would be the actual amount of drugs seized, nonetheless, the fact that they had been recruited by the Accused should clearly be reflected in the respective sentences. In any case, the actual amount of the Drugs seized was set out in the Statement of Facts and was admitted by the Accused without any qualification.

71     The fourth critical factor would be his antecedent record. The most relevant would be his offence of trafficking in 2004 where he had been sentenced to 5 years and 3 months with 6 strokes of the cane with another charge of possession which sentence of 18 months was ordered to run consecutively. His substantial period of incarceration did not deter him from getting involved in drugs again.

72     The final aggravating factor would the nine similar charges taken into consideration. The Accused had one possession offence committed on an earlier date, 3 February 2018 (DAC 904516/2023). Of the other 8 possession charges taken into consideration, they were all committed on the same day as the proceeded charges but they involved additional variety of other controlled drugs, namely:

(i)     methamphetamine,

(ii)     4-bromoethcathinone or its bromo positional isomer in the phenyl ring,

(iii)     N-ethylpentylone or its 3-methylbutan-1-one isomer,

(iv)     5-methoxy-MiPT or its methoxy positional isomer in the 6-membered ring,

(v)     MMB-FUBINACA or its 1-pentanoate or 2-methylbutanoate isomer or any of their respective fluoro positional isomers in the phenyl ring,

(vi)     Methadone, and

(vii)     MDMA.

73     The Accused was in possession of not just large quantity but a large variety of controlled drugs. These numerous charges taken into consideration would certainly have a boosting effect on the sentences for the proceeded possession charges.

74     Based on the principle of deterrence and the abovementioned factors, the maximum sentence would have been warranted and I would have sentenced the Accused to 10 years’ imprisonment on each charge at this first stage of the sentencing.

75     I turn next to the charge of consumption.

Sentencing of the LT2 consumption charge

76     The Accused had been in and out of the Drug Rehabilitation Centre on at least 2 occasions. Despite his two DRC admissions, the Accused went on to commit consumption offences on another 2 occasions, resulting in a conviction of a LT2 consumption offence in 2012 whereby he was sentenced to 7 years and 6 months with 6 strokes of the cane.

77     The Accused also had three failure to report for urine charges as well as one LT2 charge taken into consideration.

78     Taking into account the principle of escalation, I would have sentenced the Accused to eight years and six months’ imprisonment for this offence with 6 strokes of the cane.

Adjusting the individual sentences in applying the Totality Principle

79     By virtue of section 307 of the Criminal Procedure Code 2010, as the Accused is being sentenced to imprisonment for at least 3 distinct offences, the Court must order the sentences for at least two of those offences to run consecutively.

80     If no adjustment is made, then the Accused would have to be sentenced minimally to 18 years and 6 months imprisonment based on my above-indicated sentences for the three offences.

81     Given that the maximum sentence for the most severe offence which is the consumption offence is 13 years’ imprisonment, the sentence of 18 years and 6 months would not be exactly crushing given his overall criminality. Nonetheless, in view of his plea of guilt and his avowed efforts during the last six years in remand to reform, I have adjusted the sentences for each offence down to eight years’ imprisonment, giving a global sentence of 16 years’ imprisonment.

82     Any further adjustment down would not reflect appropriately the various aggravating factors highlighted above in arriving at the individual sentences.

83     The sentence of 16 years’ imprisonment would not be so crushing as to snuff out all hopes and prospects of a rehabilitated life and thus would be in keeping with his past record and future prospects.

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Public Prosecutor v Le Thuy Trieu
[2024] SGDC 191

Case Number:DAC 902207 of 2023
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Ganeshvaran s/o Dhanasekaran and Muhammad Izzat (Immigration & Customs Authority) for the Prosecution; James Joseph (Prestige Legal LPP) for the accused person
Parties: Public Prosecutor — Le Thuy Trieu

Criminal Procedure and Sentencing – Section 57C(2) of the Immigration Act (Cap 133, 2008 Rev Ed) – Offender arranged a marriage of convenience in return for financial gain

13 September 2024

District Judge Kow Keng Siong:

Introduction

1       At the end of a trial, I convicted Ms Le Thuy Trieu (“the Accused”) on a charge under s 57C(2) of the Immigration Act (Cap 133, 2008 Rev Ed): Public Prosecutor v Le Thuy Trieu [2024] SGDC 126 (“Conviction GD”).

2       After the conviction, the Prosecution recommended a sentence of 9 months’ imprisonment and $6,000 fine. The Defence sought a lenient sentence.

3       I eventually imposed a sentence of 9 months’ imprisonment and $4,000 fine i/d 20 days’ imprisonment. In this judgement, I will explain my reasons for imposing this sentence. (The references used in this judgement are the same as those in the Conviction GD.)

Relevant considerations

4       Section 57C(2) makes it an offence for any person to arrange or otherwise assist in arranging a marriage between two other persons with the intention of assisting one of the parties to the marriage to obtain an immigration advantage (“marriage of convenience”).

Offence-specific factors

5       In Mehra Radhika v Public Prosecutor [2015] 1 SLR 96 (“Mehra Radhika”) at [24] and [25], the High Court identified six offence-specific factors which are relevant to the sentencing under s 57C(2). They are as follows:

(a)     Whether the offence was committed in circumstances that reveal that active steps were taken to avoid detection of the offence.

(b)     Whether the offence was a one-off incident or part of a wider illicit commercial operation.

(c)     The specific role played by the offender.

(d)     The specific motive with which the offender committed the offence.

(e)     Whether the offender had recruited accomplices to assist in the commission of the offence.

(f)     Whether the offender had pressured or exploited any of the other parties involved in the marriage of convenience.

Custodial threshold

6       According to the High Court, the custodial threshold will generally be crossed if any of the following offence-specific factors are present (Mehra Radhika at [58]):

(a)     Active steps were taken to conceal the offence.

(b)     The offender played a major role in the commission of the offence as opposed to a minor or merely ancillary role.

(c)     The offence was committed as part of a commercial enterprise that was active in the commission of such crimes as opposed to being a one-off incident.

(d)     The offender was motivated by profit, in which case a fine should additionally be imposed (“disgorgement fine”).

(e)     The offender has recruited others (beside the “spouse”) in the course of committing the offence.

(f)     There has been any exploitation or pressure applied to any of the participants involved in the commission of the offence.

Offender-specific factors

7       In my view, I am of the view that the offender-specific sentencing factors that are typically considered for other offences should also apply to s 57C(2). These factors include the following:

Aggravating factors

(a)     Offences taken into consideration.

(b)     Relevant antecedents.

(c)     Evident lack of remorse.

Mitigating factors

(d)     Guilty plea.

(e)     Voluntary surrender of criminal proceeds.

(f)     Co-operation with authorities.

(g)     Offender’s personal attributes, e.g., his mental condition.

(h)     Offender’s young age.

(i)     Judicial mercy.

(j)     Undue delay in investigation and prosecution.

See Sentencing Frameworks in Singapore (Academy Publishing, 2022) at [4.86(b)] and at Annex H; Sentencing Principles in Singapore (Academy Publishing, 2019) at Cap 22 and Cap 24.

Applying the considerations

Custodial threshold crossed

8       Applying the considerations in [6] above, the custodial threshold is clearly crossed in the present case.

(a)      First, the Accused had played a major role in the commission of the offence. Specifically, she was the one who (i) had suggested the idea of Vuong entering a marriage of convenience to prolong her stay in Singapore, (ii) had approached Hoo to enter into a marriage of convenience with Vuong, (iii) had arranged the registration of the marriage with the Registry of Marriages, and (iv) had passed a total of $10,000 (consisting of $2,000 as an advance and $8,000 in balance payment) from Luong to Hoo for entering the marriage: see Conviction GD at [5(a)], [5(b)], [5(d)], [6(c)] and [6(d)]. I agreed with the Prosecution that without the Accused’s involvement, it would have been unlikely for Hoo and Vuong to have entered a marriage of convenience.[note: 1]

(b)      Second, the Accused had also obtained for herself $4,000 to $6,000 in order to commit the offence: see [13] below.

Imprisonment term

9       In determining the duration of the Accused’s imprisonment term, I have considered the fact that Hoo, Vuong, and Luong (“co-offenders”) had each been sentenced to six months’ imprisonment for their role in the marriage of convenience.

10     In my view, the Accused’s sentence should be longer than those imposed on her co-offenders. This is to reflect a difference in their culpability.

(a)     Among the four persons involved in the marriage of convenience, the Accused clearly played the most significant role: see [8(a)] above.

(b)     The co-offenders had pleaded guilty to their respective offences. Such a plea showed that they were remorseful and had saved valuable public resources in prosecuting them. The sentences on the co-offenders would have included a sentencing discount for their early guilty plea. The same sentencing discount is not available to the Accused. This is because she had chosen to claim trial.

11     In my view, a sentence of 9 months’ imprisonment is appropriate as a starting point (“starting point sentence”). Such a sentence –

(a)     commensurate with the gravity of the Accused’s offence,

(b)     reflects the difference in her culpability from those of the co-offenders, and

(c)     is in line with the sentences imposed in Public Prosecutor v Qin Fuxing [2021] SGDC 154 and Public Prosecutor v Nguyen Thi Hong Lan [2018] SGDC 325.[note: 2]

Disgorgement fine

12     In addition to a term of imprisonment, it is also appropriate to impose a fine to disgorge the criminal benefits that the Accused had received from her offence: see [6(d)] above.

13     In this case, the evidence reveals the following:

(a)     Luong had given the Accused about $14,000 to $16,000 for arranging the marriage: see Conviction GD at [5(d)].

(b)     Out of this sum, the Accused had given $10,000 to Hoo: see [8(a)] above.

(c)     The criminal benefits that the Accused had obtained from the offence is thus between $4,000 to $6,000 – i.e., $14,000 to $16,000 minus $10,000.

14     Given that there is some uncertainty as to exactly how much the Accused had obtained (between $4,000 to $6,000), a benefit of the doubt should be given to her. Accordingly, I impose a disgorgement fine of $4,000 in the present case.

Offender-specific factors

15     I will now deal with the issue of whether the starting point sentence ought to be adjusted for offender-specific sentencing factors.

16     In this regard, the Defence had highlighted the following when submitting for a lenient sentence:[note: 3]

(a)     The Accused did not have any criminal antecedent.

(b)     She had been suffering from depression since 2016.

(c)     She had been unemployed since March 2024.

(d)     The personal circumstances and hardship that the Accused’s loved ones and her were facing at the time of sentencing.

17     In my view, the factors raised by the Defence do not justify a reduction in the starting point sentence.

Conclusion

18     Accordingly, I imposed a sentence of 9 months’ imprisonment and a fine of $4,000 i/d 20 days’ imprisonment.

[note: 1]Prosecution’s Submission on Sentence dated 1 July 2024 at [6(b)].

[note: 2]See Prosecution’s Submission on Sentence dated 1 July 2024 at [9] to [15].

[note: 3]Mitigation dated 4 July 2024.

"},{"tags":["Criminal Law – Offences – Outrage of modesty","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-13","court":"District Court","case-number":"District Arrest Case No. 916738 of 2022 & Ors, Magistrate's Appeal No. 9127-2024-01/02","title":"Public Prosecutor v JDA","citation":"[2024] SGDC 224","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32136-SSP.xml","counsel":["Ms Gladys Lim (Attorney General's Chambers) for the Prosecution","Mr Terence Tan and Ms Ong Hui Wen (Drew & Napier LLC) for the Accused"],"timestamp":"2024-09-18T16:00:00Z[GMT]","coram":"Ong Luan Tze","html":"Public Prosecutor v JDA

Public Prosecutor v JDA
[2024] SGDC 224

Case Number:District Arrest Case No. 916738 of 2022 & Ors, Magistrate's Appeal No. 9127-2024-01/02
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: Ong Luan Tze
Counsel Name(s): Ms Gladys Lim (Attorney General's Chambers) for the Prosecution; Mr Terence Tan and Ms Ong Hui Wen (Drew & Napier LLC) for the Accused
Parties: Public Prosecutor — JDA

Criminal Law – Offences – Outrage of modesty

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9127/2024/01-02.]

13 September 2024

District Judge Ong Luan Tze:

1       The Accused claimed trial to four charges involving the outrage of modesty against his stepdaughter. These charges covered a 10-year period from 15 March 2005 to 2015, with the salient details as follows:

Charges under s 354 of the Penal Code (Cap 224, 1985 Rev Ed) (“1985 Penal Code”)

1st charge (DAC 916738/2022)

Sometime between 15 March 2005 and 2006, in an address along Bury Road (“Bury Road address”), the Accused touched the victim’s chest over her clothes.

2nd charge (DAC 916739/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s vagina with his fingers, and made contact between his penis and her vagina.

Charge under s 354(1) and punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“2008 Penal Code”)

3rd charge (DAC 916740/2022)

Sometime between 15 March 2009 and 15 August 2010, at the carpark of 43 Jalan Loyang Besar and in a motorcar, the Accused touched the victim’s bare thigh and breast over her clothes.

Charge under s 354(1) of the 2008 Penal Code

4th charge (DAC 916741/2022)

Sometime in 2015, in an address along Upper Aljunied Lane (“the Aljunied unit”), the Accused touched the victim’s thigh and breasts.



2       At the conclusion of the trial, I was satisfied that the Prosecution had proven these four charges beyond a reasonable doubt. Accordingly, I found the Accused guilty and convicted him.

3       Having heard the Prosecution’s address on sentence as well as the Accused’s mitigation, I imposed the following sentences:

Charge

Sentence imposed

1st charge DAC 916738-2022

12 months’ imprisonment

2nd charge DAC 916739-2022

18 months’ imprisonment (consecutive)

3rd charge DAC 916740-2022

16 months’ imprisonment (consecutive)

4th charge DAC 916741-2022

10 months’ imprisonment + six weeks’ imprisonment in lieu of three strokes of the cane.

Global sentence

34 months’ imprisonment + six weeks’ imprisonment in lieu of caning



4       The Accused appealed against both the conviction and sentence, and is currently out on bail pending appeal.

Statement of Agreed Facts (“SOAF”)

5       The undisputed facts were encapsulated in a Statement of Agreed Facts[note: 1], the salient portions of which are set out below.

6       The victim was a female born on 17 October 1996. At the commencement of the trial, she was 27 years old. Her biological family consisted of:

(a)     The victim’s biological mother PW1;

(b)     The victim’s biological father PW3;

(c)     The victim’s twin brother PW6; and

(d)     The victim’s older brother.

7       The Accused was 49 years old at the commencement of the trial. He was married to PW1 in October 2003 and they divorced in January 2020.

8       The Accused and PW1 had a total of nine children, as follows:

(a)     Triplets born in April 2004 (“the triplets”), including PW4;

(b)     Twins born in November 2012 (“the twins”); and

(c)     Quadruplets born in October 2013 (“the quadruplets”).

9       On 20 May 2021 at about 7.50 p.m., the victim lodged a police report against the Accused.[note: 2]

Background facts: The victim’s schooling arrangement

10     The victim was enrolled in Rosyth Primary School from 2003 to 2008, and later in CHIJ St Theresa’s Convent Secondary School from 2009 to 2012. In 2021, she started schooling at ITE College West.[note: 3]

Background facts: The victim’s living arrangement

11     Between 15 March 2005 and 14 March 2009, the victim and her biological family, as well as the Accused and his family, and the victim’s maternal grandmother (“grandmother”), lived at the Bury Road address. This was a government property rented in the name of the Accused’s parent’s company.[note: 4]

12     Sometime after 15 March 2005, renovations were done to the Bury Road address. After these renovations, the victim shared a bedroom with her grandmother. This room was connected to the master bedroom by a connecting door.

13     Between 15 March 2009 to 15 August 2010, the victim lived with her biological family, and the Accused and his family, at a unit in 43 Jalan Loyang Besar, Singapore.[note: 5] During this time, the Accused drove a motorcar (“Honda Odyssey”) which was registered in the name of the Accused’s mother.[note: 6]

14     Between 16 August 2010 to sometime before 30 November 2016, the victim lived with her biological family, the Accused and his family, and the grandmother, at the Aljunied unit. This was a two-storey unit in a block of flats which was rented in the name of the victim’s biological father, PW3.[note: 7]

15     Sometime during the period from 16 August 2010 to 30 November 2016, both families ran a café business, Bartak, at the Aljunied unit. The business was registered in the names of the victim’s biological parents (PW1 and PW3) with the Accounting and Corporate Regulatory Authority from 25 June 2010 and its registration expired on 25 June 2017.

16     By 2016, both families had moved out of the Aljunied unit.

The Prosecution’s Case

17     In seeking to prove the charges against the Accused, the Prosecution called the following witnesses.

Evidence from the victim

18     The victim confirmed that she had lodged a police report against the Accused on 20 May 2021, informing that “18 years ago, [she] was sexually assaulted by [the Accused] a couple of times”.[note: 8] While she was not able to remember when exactly the incidents happened, she recalled that it started when she was in primary school, and when she was staying at the Bury Road address.[note: 9] Her evidence was that the Accused had touched her at her private parts on a few occasions and that apart from the Bury Road address, it had also occurred when she was staying at 43 Jalan Loyang Besar and the Aljunied unit.

Incident in the Aljunied unit

19     The last time this occurred was sometime in 2015 when she was staying at the Aljunied unit. While her bedroom was on the second level with her two brothers, her mother had asked her to move downstairs to sleep with her and the victim’s step-siblings in the bedroom on the ground floor. This was because her mother wanted her to help out in the kitchen in the morning, as well as to help take care of her younger step-siblings. As such, the victim would sleep in the ground floor bedroom with her mother and her step-siblings. In particular, she slept on a mattress which was closest to the bedroom door. The Accused would sleep in the living room. She recalled that there were a few nights when the Accused would come into the bedroom and touch her on her private areas like her breast and thighs.

20     On the last occasion this happened, the Accused came into the bedroom and while squatting down, touched the victim on her breast. The victim described the touch as soft and being in a circular motion, and she felt it over her clothes. She also felt touches on her thigh, and this was on her skin. She opened her eyes and saw the Accused squatting in front of her. She moved and the Accused stopped what he was doing and left. The victim confirmed that the Accused had touched her with his hands.[note: 10]

21     The next morning, one of her step-sisters, PW4, asked the victim if the Accused had touched her the night before, and told the victim that she had seen what happened. The victim answered in the affirmative but told PW4 not to tell anyone because she was afraid the others might think she had made this up. However, sometime later, PW6 also came to ask her about this incident and she told him what happened. Her mother later came to ask her about it too, and she also told her mother what happened. Her mother told her not to tell her father PW3 about it as she did not want to have any problems at home. The victim did not tell her father, but her father later came to know about this and asked her if she wanted to lodge a police report. The victim replied in the negative as she was thinking about her step-siblings who were very young then, and she did not want them to grow up without a father.[note: 11]

22     When asked why she thought that her family members might not believe her if she told them what happened, the victim explained that she was not close to any of them. Her mother did not like her since young, and she was not close to her father, as her mother did not like her talking to her father. PW6 was close to her mother so the victim did not confide in him, and her older brother was usually not at home.[note: 12]

23     About one month after this last occasion, the victim moved out of the Aljunied unit with her father PW3.[note: 13]

First incident at the Bury Road address

24     The victim recalled one night when she was in primary three or four[note: 14], when the Accused entered her bedroom via the connecting door to the master bedroom. The victim was sleeping on the top bunk of a double decker bed when she felt the Accused touch her on her breast area with his hands, softly and in a circular motion. This was over her clothes. She moved, after which he stopped and left. Her grandmother, whom she shared the bedroom with, was in the living room watching television at that time.[note: 15]

25     When the Accused touched her, she was confused and knew that it was wrong because her mother had told her before that she should not show her private areas to other people. By private areas, the victim understood this to mean her chest and the area between her thighs. She did not know why the Accused touched her.[note: 16]

Second incident at the Bury Road address

26     The victim recalled another night when she was also in primary three or four, when she was sleeping on the top bunk. The Accused came into the bedroom and tapped her on her shoulder to wake her up. He then signalled for her to follow him and she duly did so. She went to the master bedroom via the connecting door. The Accused asked her to take off her pants and panties and to lie down on the bed. The victim pulled down her pants and panties although she did not take them off. She then lay down on the bed. The Accused took off his boxers and took his penis to rub on her vagina in an up and down motion. He tried to put his penis inside her vagina and she knew this was happening because she felt pressure on her vagina and a pushing force. The Accused then used his fingers to rub her vagina up and down, before asking her to pull up her pants and panties and to leave the room. The Accused also pulled up his boxers. The victim pulled up her pants and panties and went back to her bedroom.[note: 17]

27     The victim did not know why this happened, and felt scared and sad because she could not talk to anyone about this as she was not close to her family members. She did not think about telling her friends about this.[note: 18]

Incident at 43 Jalan Loyang Besar

28     During the time when the victim stayed at 43 Jalan Loyang Besar, she was studying in secondary one and two. One day after school, she saw the Accused’s vehicle at the pick-up point in school, and thought that her mother might have asked the Accused to pick her up. She boarded the vehicle and sat in the front passenger seat. On the way home, she fell asleep. When she was sleeping, she felt touches on her breast area and on the middle of her thigh as well. She described the touches on her breast as soft and in a circular motion over her uniform. The touch on her thigh was directly on her skin. The victim moved and opened her eyes. She then realised that they were back at the car park of 43 Jalan Loyang Besar, and the vehicle was already parked. The Accused was in the driver’s seat and had used his hands to touch her. The Accused stopped what he was doing, and the victim got out of the vehicle and went home.[note: 19] Again, she did not tell her family about this incident as she was not close to them. The victim felt scared and did not know why this was happening.[note: 20]

29     The victim confirmed that she did not consent to any of these incidents. She would cry herself to sleep during the period when the incidents were happening, and after lodging the police report, she also went to see a psychiatrist.[note: 21]

30     When asked why she decided to lodge the police report in 2021, the victim explained that she was dating someone then, and told him about the last occasion at the Aljunied unit. She revealed this to him because she wanted him to understand why she might get sensitive over certain things. He then advised her to lodge a police report and after thinking about it for a while, she decided to do so. She also felt that her step-siblings were old enough by then to take care of themselves.[note: 22]

31     In describing her relationship with the Accused, the victim’s evidence was that she was not close to him and did not usually talk to him. She admitted that she did not like the Accused because when he came into the picture, her father was not around much.[note: 23]

32     At around the time of the last incident, the victim was close to PW4 but they had since drifted apart.[note: 24]

33     The victim admitted that she did not like her mother as she felt that her mother treated her unfairly as opposed to her other children.[note: 25] However, even after the victim moved out of the Aljunied unit, she continued to visit her mother.[note: 26] The victim confirmed that she did not know about her mother’s divorce with the Accused[note: 27] and also did not know that her mother and the Accused owned a property at Joo Seng Road.[note: 28]

Evidence from PW1 (the victim’s biological mother)

34     PW1 gave evidence on the living and sleeping arrangements when her family (including the victim and the Accused) lived at the Bury Road address, as well as at the Aljunied unit. In particular, she explained that at the Bury Road address, the victim slept in the same room as her grandmother. This room was connected to the master bedroom, and the door connecting the two rooms could only be locked from the side of the master bedroom.[note: 29] PW1 and the Accused slept in the master bedroom.

35     When they lived at the Aljunied unit, there was a shopfront on the ground floor, and living quarters on the second floor. The victim lived on the second floor together with PW3, her grandmother and her two brothers. PW1, the Accused and their nine children (the triplets, twins and quadruplets) lived in one bedroom on the ground floor, a space which was carved out from the shop space. PW1 gave evidence that the victim would sleep on the second floor where her room was, but that sometimes she would doze off on the couch on the ground floor, or even in the ground floor bedroom when she had to help “feed the babies”.[note: 30]

36     PW1 confirmed that she only knew that the victim had lodged a report after she was called up by the police for investigations. She also stated that she had not spoken to the victim for about two years prior to the report being lodged.[note: 31]

Evidence from PW3 (the victim’s biological father)

37     PW3 gave evidence that sometime in 2015, he came to know from someone that the Accused had molested the victim. He could not recall who he heard this from, and he did not know the details of what happened. However, he was upset when he heard this, and confronted the Accused on the same day together with PW1.[note: 32]

38     Before he met the Accused, PW3 wrote his thoughts down on a piece of paper. He explained that he was feeling angry and upset, and did not want to lose his train of thought or lose control of himself when talking to the Accused. Hence he used the note as a reference and essentially read out the key points to the Accused during the meeting.[note: 33]

39     The contents of the note included the statement “You dare to molest my daughter in my house” and went on to warn the Accused against any such further acts.[note: 34] The note also made reference to the Accused’s “issues”, which PW3 clarified referred to the Accused’s explosive temperament and abusive and violent tendencies[note: 35], although he did not think these had been used against the children. According to PW3, after he had read out the points in the note to the Accused, the Accused kept quiet and there was no response or denial.[note: 36]

40     PW3’s evidence was that at that point, he thought there had only been one incident, and he wanted to give the Accused a warning and a chance to change. PW3 went on to keep the note as a record for himself that he had spoken to the Accused about this incident.[note: 37] He did not make a police report or ask the victim to make a police report because he did not think that it was a serious criminal matter. PW3 also felt that the victim was very young and did not want her to be affected by what he thought was a single incident.[note: 38]

41     PW3 explained that the victim would not tell him these things as she would know that she would not be believed by PW1.[note: 39] PW3 confirmed that the victim was not treated well by PW1. He also felt that PW1 prevented the victim from getting close to him and the victim would be badly treated if he tried to get too close to her.[note: 40] He felt that the victim was being oppressed and had no one to speak to and no one to protect her.[note: 41]

42     In December 2015, he moved out of the Aljunied unit with the victim and the grandmother, as he wanted to take her away from PW1 since she was not being treated fairly.[note: 42]

Evidence from PW4 (the victim’s step-sister)

43     PW4 was the victim’s step-sister, and about 11 years old at the time of the last incident in 2015. PW4 confirmed that during the period when they stayed at the Aljunied unit, the victim would sleep with her on the “lower bunk” of the bedroom on the ground floor, as their mother would ask the victim to help take care of the step-siblings. The Accused would sleep outside in the living room area.[note: 43]

44     One night, she was woken up by the Accused coming into the bedroom. She saw the Accused kneel down and touch the victim on her thigh and breast with his hands. As the victim was sleeping on her side and facing away from her, she saw the Accused touch the victim on the side of her thigh and breast. She also confirmed that the Accused had touched the victim on her bare thigh. After that, PW4 went back to sleep.[note: 44]

45     The next day, she asked the victim if she knew that the Accused had touched her but she could not recall in detail the victim’s response. PW6 also came by to ask her about the incident and she told him what she saw. After that, PW1 then asked to see the victim, PW6 and herself, and asked them what happened. PW4 told PW1 what she saw.[note: 45]

46     With regard to the brightness of the room during the time of the incident, PW4 explained that the room was dim, but there were two night lights so it was bright enough for them to see where they walked.[note: 46]

47     PW4 also confirmed that she was close to the victim at the material time, but did not remain close after they moved out of the Aljunied unit.[note: 47]

Evidence from PW5 (the victim’s ex-schoolmate)

48     PW5 was the victim’s schoolmate in secondary school and was quite close to her at that time. They got to know each other sometime in 2012 when they were in secondary four.

49     PW5 gave evidence of the victim coming to school looking haggard and not eating much. As this was affecting the victim’s schoolwork, PW5 and other friends tried to approach her to ask if she was encountering any problems in school or at home. After some time, the victim told PW5 that she was touched at night by her stepfather, but she did not want to speak out for fear of the repercussions. In particular, the victim told her she shared a room at home with her step-siblings as she needed to help take care of them. The door to the bedroom was not locked, and at night, she would feel that she was being touched and open her eyes to see the Accused touching her. Upon hearing this, PW5 advised her to inform her parents or the teachers and counsellors.[note: 48]

50     PW5 confirmed that she was no longer in contact with the victim at the time of the trial, and they lost touch after graduating from secondary school.

Evidence from PW6 (the victim’s twin brother)

51     PW6 was the victim’s twin brother, and gave evidence that sometime in the later part of 2015, he found out from PW4 that she saw the Accused touch the victim on her breast while the victim was sleeping in the early hours of the morning[note: 49]. When he asked her to be more specific, PW4 told him that this had been happening for the past couple of nights. In particular, the Accused would enter the bedroom on the ground floor and this would occur before he woke the other children up for school.[note: 50] PW6 asked the victim about this but she told him that she did not know this had happened. PW6 wanted to inform their mother, but the victim told him not to because she was afraid their mother would not believe her and that she was making things up to tear the family apart. PW6 respected this decision, but told PW4 to lock the bedroom door. He himself made sure that the bedroom door was locked for the next few nights as well after everyone went inside.[note: 51]

52     About two weeks later, PW6 received a phone call from PW5 to inform him that she just got off the telephone with a crying victim who told her she had been touched by her stepfather that morning. PW6 recalled that he was serving National Service (“NS”) and was in camp at that point. After receiving this phone call, he took the afternoon off[note: 52] and came home to confront the victim and PW4. He asked the victim what happened and she told him that the Accused had touched her that morning. He then asked PW4 how this had happened since he had given instructions for the bedroom door to be locked. PW4 explained that the door had to be unlocked because the Accused got angry one morning when he found it locked, and shouted at the children.[note: 53]

53     PW6 told the victim that he could not stay silent about this. The victim begged him not to but he went ahead to tell their mother, PW1 about this. PW1 then told him that she would inform their father about this.[note: 54]

54     PW6 confirmed that PW1 would ill-treat the victim and be quite abusive with her punishments. On the other hand, he was mostly doted on by PW1 when he was younger and was closer to her than anyone else then. PW6 was aware that the victim did not trust their mother, and she would sometimes rant about the unfair treatment she received.[note: 55] He also agreed that the victim’s relationship with PW1 and the Accused was not good.[note: 56]

Evidence from PW7 Deputy Superintendent of Police Liao Chengyu (“PW7 DSP Liao”)

55     PW7 DSP Liao was the first investigation officer for this case, and recorded the second statement from the victim on 17 August 2022[note: 57].

56     He explained that no statement was recorded from the victim’s grandmother because her family had objected on the basis of the grandmother’s old age and health.

57     He later handed over the case to Assistant Superintendent of Police Seow Seah Hui (“PW8 ASP Seow”).

Evidence from PW8 ASP Seow

58     PW8 ASP Seow took over the matter sometime in October 2022, when the investigations were largely completed, and just before the Accused was charged.

59     She recorded a third statement from the victim on 5 April 2023[note: 58] and to her recollection that was the first time she met the victim. She confirmed that she had drafted the first set of charges[note: 59], under the direction and guidance of PW7 DSP Liao.

The Defence’s Case

60     At the end of the Prosecution’s case, I found that a prima facie case had been made out against the Accused on the charges, and called on him to give his defence accordingly. The Accused chose to give evidence in his own defence.

Evidence from the Accused

61     The Accused married PW1 in October 2003. Before his marriage, PW3 was introduced to him by PW1 as his brother-in-law.[note: 60] PW3’s three children (the victim and her two brothers) addressed him as “Uncle” in Teochew, and he was given to understand they were his niece and nephews.[note: 61] It was not until the start of police investigations that he realised they were the children of PW1 and PW3.[note: 62]

62     After his marriage with PW1, they lived in a condominium unit at Gilman Heights. PW3’s three children would come to visit but not sleepover. Eventually, PW1 wanted both families to live together, so they moved to the Bury Road address. The Accused was initially hesitant, but he eventually gave in because he considered that PW3’s three children were still young.[note: 63]

63     The Accused and PW1 moved in with their triplets and two helpers first, followed by PW3, his three children and “Granny”. The Accused was told by PW1 that “Granny” was her nanny.[note: 64]

64     The Bury Road address was renovated to add a bedroom and living space to accommodate both families. The new bedroom was occupied by the victim and “Granny”. The Accused and PW1 occupied the master bedroom, the triplets and the two helpers occupied the second original bedroom and PW3 and his two boys occupied the third original bedroom. The triplets would occasionally sleep over in the master bedroom as well, although the Accused could not be sure how often this occurred.[note: 65] There was only a king-sized bed in the master bedroom, and the Accused could not remember if there were any cots.[note: 66]

65     The Accused described his relationship with PW3 and his three children as good,[note: 67] and denied that he had ever touched the victim’s chest or vagina in the course of staying at the Bury Road address.

66     In 2009, they moved out of the Bury Road address and moved to 43 Jalan Loyang Besar.[note: 68]

67     At this point, the Accused was working in his father’s company, with his office location at Bukit Merah. This was near the victim’s secondary school. However, the only time the Accused ever picked her up from school was once when he drove along the main road outside the school and happened to spot the victim waiting at the bus stop opposite the school. He then stopped his car, signalled for her to get in, and sent her home to 43 Jalan Loyang Besar. Nothing unusual happened during this occasion[note: 69], and the Accused denied touching the victim on her chest or thigh while at the car park of 43 Jalan Loyang Besar.

68     In 2010, both families moved to the Aljunied unit because PW1 and PW3 wanted to start a family business (Bartak Boutique Café). The Aljunied unit was rented by PW3 and he was also the owner of the business.[note: 70]

69     At the Aljunied unit, PW3, his three children and “Granny” slept on the second floor, while he, PW1 and their nine children slept in the ground floor bedroom. They started off with a double decker bed, but when the twins and quadruplets were born, renovations were done to install a platform in the room and to increase the floor area. PW1 would sleep on the top deck and the children at the bottom. The Accused would sleep in the double decker bed which was now moved to the corridor.[note: 71] The Accused did not remember if the victim would sometimes sleep in the ground floor bedroom[note: 72], and denied that he had ever touched her breasts or thighs at the Aljunied unit.

70     The Accused admitted that there was an occasion when they were staying in the Aljunied unit when PW3 confronted him over an allegation that he had molested the victim. PW3 did not provide details of this molest. The Accused was shocked and disappointed at this allegation but did not say anything as he did not want to affect the relations of both families. At that point, he did not think this was a serious allegation.[note: 73]

71     The Accused, PW1 and their nine children moved to Joo Seng Road in 2016. PW3 and his three children moved to Pasir Ris.

72     The Accused and PW1 divorced in 2019, with final judgment in 2020. PW1 then tried to pressure the Accused into selling the unit at Joo Seng Road. A few days before he was called down to the police station for this allegation, PW1 told him that if he did not sell the unit at Joo Seng Road, she would see him in court. She also told him that she had gone for a police investigation, and asked him to be careful. However, she did not provide any details on the allegations.[note: 74]

73     When asked if he knew why the victim would make a false report against him, the Accused said that he did not know. He had told the police during investigations that it might have started when he got married with PW1 and the victim felt that she had lost her mother. Also, the victim might have felt that he betrayed her mother when he divorced her in 2019. However, the Accused admitted this was guesswork on his part.[note: 75]

74     The Accused agreed that he had no disputes with PW4 and did not know of any reason why PW4 would lie and give false evidence in court against him.[note: 76]

Court’s Decision on Conviction

The law – elements of the offence

75     The charges against the Accused were framed as outrage of modesty offences, under s 354 of the 1985 Penal Code; and s 354(1) and s 354(2) of the 2008 Penal Code. For all four charges, the following two elements[note: 77] must be proven:

(a)     criminal force was used on the victim; and

(b)     the Accused knew it to be likely that this would thereby outrage the modesty of the victim.

76     The facts which the Prosecution needed to prove to make out the actus reus of each charge i.e. the facts which constitute the criminal force, are set out below:

1st charge (DAC 916738/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s chest over her clothes.

2nd charge (DAC 916739/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s vagina with his fingers, and made contact between his penis and her vagina.

3rd charge (DAC 916740/2022)

Sometime between 15 March 2009 and 15 August 2010, at the carpark of 43 Jalan Loyang Besar and in a motorcar, the Accused touched the victim’s bare thigh and breast over her clothes.

4th charge (DAC 916741/2022)

Sometime in 2015, at the Aljunied unit, the Accused touched the victim’s thigh and breasts.



An assessment of the victim’s evidence

77     The Prosecution’s case relied solely on the victim’s evidence for the first three charges, and an assessment of whether her evidence was “unusually convincing”[note: 78] therefore had to be made. The relevant considerations would include the victim’s demeanour, and the internal and external consistencies of her evidence.[note: 79]

78     In my assessment, the victim’s evidence was largely consistent and credible. In court, she came across as having a mild character. Testifying in a courtroom setting clearly took a significant amount of effort on her part, and she broke down a few times in the course of giving evidence. She was never forceful in putting across her answers, and on some occasions, even gave up trying to give an explanation. In short, she did not come across as someone who would deliberately concoct an elaborate history of false sexual assault and go to the trouble of coming to court to defend it. Naturally, demeanour alone was not determinative and some fault could even be attributed to her for her refusal to give an explanation at times, as the Defence had quite reasonably pointed out in their closing submissions. However in my view, her lack of forcefulness actually cohered with the general background she painted of a young victim who suffered alone and in silence throughout a long history of sexual assault. I elaborate more on this below.

79     The victim gave evidence of the facts as set out in the charges and at [76] above, and by itself, her evidence was internally consistent.

80     The Defence tried to argue that there were some inconsistencies within her evidence, some aspects of which were based on guesswork and assumptions. I examine two of these below:

(a)     With regard to the 1st charge, the victim’s evidence was that she was asleep when the Accused came through the connecting door into her bedroom. If so, then she could not possibly have seen him come through the connecting door. In cross examination, she candidly agreed that she would not have seen him come through the door and her evidence had been based on a logical assumption since that was the only way he could have entered the bedroom. I accepted the victim’s explanation and noted that making assumptions based on logic was natural in normal conversations, and something commonly done by everyone.

(b)     With regard to the 2nd charge, the Defence also pointed out that the victim’s evidence was that the Accused had touched her in the middle of her thigh, but this appeared to be inconsistent with the fact that she had been wearing a school pinafore at that time, which ended just a bit above her knee. Again, I did not think this was an inconsistency. How long the pinafore was, how it had been tucked in when she sat, and where exactly on her thigh she was touched, were all peripheral facts which did not go to the core of her evidence that she had been touched on her bare thigh, in a way which made her uncomfortable. The victim had also explained that when she sat down, she had folded her pinafore between her legs, exposing more of her thigh as a result.[note: 80] I accepted this explanation.

81     The greatest challenge to the victim’s evidence came from what appeared to some external inconsistencies between her evidence in court and her statements to the police.

Inconsistencies between the victim’s evidence and her statements

82     The most significant inconsistency lay in the number of incidents which occurred at the Bury Road address. In cross examination, the victim initially confirmed that apart from the four incidents reflected in the charges, and other touching incidents in the Aljunied unit, there were no other incidents. However, when cross examined on her statements, she later clarified that in fact there had been multiple instances of assault even at the Bury Road address, although she could not remember the details for the rest of them.

83     In her police statement recorded on 21 May 2021 at 11.54am (“D1”)[note: 81], the victim described two incidents at the Bury Road address where the Accused had asked her to go to the master bedroom and then (i) tried to penetrate her vagina with his penis which was “half erected”, used one finger to penetrate her vagina, and moved his finger in and out of her vagina a few times, and (ii) a few weeks later, penetrated her vagina with his fingers and moved his fingers in and out a few times. This was different from her evidence in court where there were only two incidents at the Bury Road address, one involving the touching of her chest on her own bed, and the other an attempted penetration with his penis in the master bedroom. When asked whether there was a total of two or three incidents at the Bury Road address, the victim explained that there were a lot of incidents which happened when she was young. She was not able to remember every single detail anymore. However, she confirmed that the incidents in her police statements had occurred, and she could also still remember the details of the two incidents which were set out in the first two charges.[note: 82]

84     Furthermore, it was only in her police statement recorded on 5 April 2023 at 10.15 a.m. (“D2”)[note: 83] that she first mentioned an incident at the Bury Road address where she was on her upper bunk bed and the Accused touched her chest i.e. the 1st charge.

85     In my view, this inconsistency was not fatal to the credibility of the victim’s evidence as a whole. It is apposite at this point to refer to the reminder by the High Court in PP v Singh Kalpanath [1995] 3 SLR(R) 158 at [60] to give adequate allowance to the “human fallibility in retention and recollection”. While this certainly does not excuse every inconsistency in a witness’ evidence, it is an important reminder to assess the evidence as a whole, and not to lose sight of the forest for the trees.

86     With regard to the incidents at the Bury Road address, these were supposed to have taken place about 15 years prior to the time the police report was first lodged and statements recorded from the victim. The victim would have been only about 9 – 10 years old at the time of the incidents. It would therefore be perfectly reasonable for her not to remember the details of all the incidents, or even exactly how many incidents there were. The victim’s explanation that there had been many incidents when she was young and that she was not able to recall every single one, was a plausible explanation which I accepted. This was bearing in mind that the first incident she described in her first statement (D1) was largely similar to the incident set out in the 2nd charge. There was therefore no dramatic change in the facts, just the question of how many times this had happened.

87     While the Defence tried to draw a detailed comparison of the account in the victim’s statement as set out at [83] above to her account in court in relation to the first two charges, it was not the victim’s evidence that these related to the same incidents at all. Her position was that she could not remember the details of each incident, and there had been many such incidents. However, she confirmed that the details of the incidents she gave evidence of in court were something that she could still remember. I therefore saw little value in nitpicking over differences between the account in the victim’s statement at [83] above and her evidence in court. For example, whether it was the Accused or the victim who had removed the victim’s panties, and whether one finger or a few fingers had been used to rub or touch her vagina. There was no value to this exercise because there was no basis to think that they even related to the same incidents. The question was whether it was reasonable to accept the victim’s explanation that the accounts in the statement related to other incidents for which she did not now specifically remember. I believed it was.

88     It was suggested to the victim during cross examination that her memory was “hazy” and she “genuinely” could not remember what may or may not have happened at the Bury Road address[note: 84]. The victim reasonably agreed. Interestingly, it was not put to the victim that she had deliberately lied about the incidents. It did not seem to me possible that the incidents, whether those as set out in her statement or those as related in court, could have been birthed from nothing as a result of a hazy memory. Either the victim was lying that she had been sexually assaulted by the Accused, or she was not. I could find no basis to think that she was lying. However, I accepted that her memory on the details could well be hazy.

89     The victim was also cross examined by the Defence on other inconsistencies between her statements and her evidence in court, but I did not find these to be material:

(a)     In her statement at D1, the victim mentioned only six step-siblings – “a triplet (girls), a pair of twins (one boy and one girl), and a youngest daughter from their marriage.” This was different from reality (see SOAF) and her own evidence in court that her mother had nine children from her second marriage. When asked about this discrepancy, the victim had no explanation to offer.[note: 85] However, I found that this was merely a peripheral inconsistency and I accepted that this was not something the victim would have been focusing on at the time of giving the statement. Considering the number of step-siblings she had, and the fact that it had been many years since she took care of them, it was not unreasonable for her to have forgotten how many and what gender they were. When she took care of them, the twins and quadruplets were only one or two years old, and she also admitted in court that she did not know their names.

(b)     In her statement at D1, when the victim described the incident of the Accused attempting to penetrate her vagina in the master bedroom of the Bury Road address, she mentioned that everyone else was at home and her grandmother was in the living room watching television. In court, she was not sure where everyone was. She had no explanation for this difference, although she mentioned that she assumed in her statement that everyone else was at home, and her grandmother was watching television.[note: 86] I did not find any inconsistency here, but rather a problem with recollection by the time of the court hearing.

(c)     In her statement at D1, the sequence of events which the victim gave for the incident at 43 Jalan Loyang Besar was slightly different. In D1, she mentioned that the Accused had touched her thigh area before touching her right breast. The Accused had also felt up her right arm sleeve and touched her arm. In evidence, the victim described the Accused touching her breast first before touching her thigh, and confirmed that the Accused did not touch other parts of her body. When asked about this discrepancy, the victim had no explanation to offer.[note: 87] I did not think this was a material inconsistency that detracted from the victim’s credibility. This was an incident that was supposed to have taken place more than 10 years ago, and getting the sequence of touches wrong, and forgetting that the Accused had also touched her arm, was not unreasonable. Ultimately she never wavered from her evidence that she had been touched on both her breast and her thigh. This was also true in D1.

(d)     In her statement at D2, with regard to one of the incidents at the Bury Road address, the victim mentioned that she could not be sure that the Accused had tried to penetrate her although she was sure he rubbed his penis on her vagina. In her evidence in court, she maintained that she knew the Accused was trying to put his penis inside her vagina because she felt a pressure and a force on her vagina. When asked to explain this apparent discrepancy, the victim explained that she thought “penetration” meant to “go all the way inside” but she was not sure if that was what the Accused was trying to do.[note: 88] I accepted her explanation. In any case, the core of her evidence, as well as what was alleged in the charge, was that the Accused had made contact between his penis and her vagina. This was something the victim never changed her evidence on. How much force was actually used, or whether the Accused was actually attempting to penetrate the victim’s vagina, was not directly relevant to the charge, and certainly not something I would expect a 9 – 10 year old girl with limited sexual knowledge to be focusing on and remembering at the time of the incident.

(e)     In her third statement recorded on 5 April 2023 (“D3”), in relation to the incident at the Bury Road address where the Accused had touched her chest, the victim stated that she opened her eyes after the Accused had stopped touching her, and she saw him leaving the room. In evidence, she stated that she had opened her eyes while the Accused was touching her, and she could see his face through the gap in the wooden railing on her bunk bed. When asked about this, the victim explained that she had peeked at the Accused while he was touching her, and only opened her eyes fully after he left.[note: 89] I accepted this explanation as a reasonable one.

(f)     In her statement at D1, with regard to the incident at the Aljunied unit, the victim mentioned that she had felt touches on her thighs and over her shorts. In court, her evidence was that the Accused had touched her thigh on her bare skin. When asked, she maintained that he had touched her skin, and she was not sure why her statement was different.[note: 90] I noted here that the victim’s explanation was corroborated by the evidence from PW4 that the Accused had indeed touched the victim on her bare thigh.

90     As a whole, the victim’s evidence was clear, coherent and internally consistent. While there was some inconsistency between her evidence and her police statements, I did not find these inconsistencies material enough to impeach the credibility of her evidence as a whole, or to throw into doubt her evidence relating to the charges.

External consistency of the victim’s evidence with other evidence

91     I also noted that the victim’s evidence was externally consistent with other aspects of the evidence.

92     In particular, the victim’s evidence with regard to the 4th charge was directly corroborated by the evidence from PW4, who was an eye-witness. PW4’s evidence was simple and clear – the victim would usually sleep with them on the ground floor bedroom of the Aljunied unit, and one night she saw the Accused touch the victim on her breast and thigh. While PW4 candidly admitted that the victim was sleeping facing away from her, she insisted that she saw the Accused touch the victim’s thigh and breast and that the Accused had touched the side of the victim’s thigh.

93     PW4 was the Accused’s biological daughter and there was nothing on record to indicate any possible reason why she would give false evidence against her own father. The evidence also indicated that while she had been relatively close to the victim at the time of the incident, the two of them had since drifted apart and were not keeping in contact by the time the police report was lodged, or when the matter was heard in court. I could therefore find no reason to doubt her evidence as objective, and accepted that she had indeed seen the Accused touch the victim on her breast and thigh areas one night at the Aljunied unit. Even if she had been mistaken and did not see the touches directly on the victim since the victim was facing away from her, she certainly saw the Accused kneeling down next to the victim and moving his hands near the victim’s breast and thigh areas. This was still directly corroborative of the victim’s evidence. I noted that the Accused did not offer any other explanation regarding why he might have been found in that compromising position, since his evidence was that the incident never took place at all.

94     In addition, PW3’s evidence of the confrontation he held with the Accused after learning of the incident in the Aljunied unit was also another independent corroboration of the 4th charge. I found it significant that the Accused, when first confronted with an allegation of molesting the victim, chose to keep quiet. I did not find his explanation for his behaviour reasonable, and took the view that his silence was an implicit admission to what he had done. I elaborate more on this below.

95     While there were some differences in the evidence from PW3, PW4 and PW6 with regard to how many times PW4 had seen the Accused touch the victim, who was the one who told PW6 about the incidents, and whether PW3 had asked the victim if she wanted to lodge a police report, these were all minor details that did not detract from the core evidence that (a) PW4 had seen the Accused touch the victim on her breast and thigh, and had asked the victim about it the morning after; and (b) PW3 came to know of this eventually and confronted the Accused, who remained silent.

96     The evidence from PW5 was not directly corroborative of any of the sexual assault incidents, but it showed that the victim’s general behaviour in school when she was in secondary 4 (2012) was consistent with her evidence of a long history of sexual assault at home. PW5’s evidence also showed that at least from 2012, the victim had made mention of such experiences to someone. As I had no reason to doubt the evidence from PW5, who was no longer close to either the victim or the victim’s brother PW6 by the time of the court hearing, I accepted that the victim had indeed told PW5 in 2012 that she had been touched by her stepfather at night. This did not prove that the incidents happened, only that the victim had told PW5 that it did. In other words, the victim’s behaviour in 2012 was consistent with the account that she related in court.

97     Evidence from PW3 and PW6 also corroborated the background history given by the victim that she was not close to any of her family members and that she did not share a good relationship with her mother PW1. Clearly she was not lying or exaggerating about this aspect of her life. When seen in this context, it was easy to accept her explanation for why she had kept quiet all these years i.e. she had no one to turn to.

98     These different sources showing the external consistency of the victim’s evidence from different angles reinforced the victim’s own evidence, and had the effect of lending it the “ring of truth”[note: 91] which made her evidence “unusually convincing”.

Accused’s evidence was not credible

99     In contrast to the evidence from the victim, the Accused was evasive and difficult during cross examination, often not answering the question or contradicting himself.

100    In particular, I was dissatisfied with his evidence regarding his relationship with the victim. It was inexplicable at best, and dishonest at worst. Given the simplicity of the question i.e. did he or did he not know that the victim was PW1’s daughter, his refusal to give a proper answer raised serious doubts in my mind as to his credibility as a witness. He insisted that PW1 had told him that the victim was his niece, and therefore he thought that she was his niece. Yet, he also admitted knowing that the victim’s mother was PW1[note: 92]. In his statement recorded on 24 May 2021 (“P10”), he also claimed that the victim only stayed with them sometimes and not on a daily basis[note: 93], which was different from the undisputed evidence set out in the SOAF. When asked why he lied in court about only knowing that the victim was PW1’s daughter when the police investigations commenced, he refused to give a straight answer, and maintained that he knew she was PW3’s daughter and that PW1 had told him that she was his niece.[note: 94]

101    In my view, the answers given by the Accused on this point showed that he was trying to distance himself from the victim. Given the number of years the Accused had been living with PW1 and her children with PW3, and the fact that there was no evidence whatsoever that any of the parties had tried to hide their relationship, I found that the Accused must have known that the victim was PW1’s daughter and therefore his stepdaughter. He was clearly not being forthright in court on this point.

102    In addition, I was also dissatisfied with his evidence regarding the confrontation between him and PW3 when PW3 came to know about the incident in the Aljunied unit.

103    When questioned on why he had not defended himself when PW3 first accused him of molest in 2015, he explained that his priority was family, and that no details were given to him, so “what is there to defend?”[note: 95] This was not a reasonable explanation as I would have expected an innocent person who had been suddenly accused of such a serious allegation as having molested his own stepdaughter to deny it outright, whether or not details were provided. His failure to do so was telling.

104    The Accused’s explanation that he had kept silent to “preserve the family bonds” was also weak and illogical[note: 96], as one would have expected that such misunderstandings should be cleared up as soon as possible if the Accused was really interested in preserving any bonds. In P10[note: 97], the Accused explained that he did not say anything when PW3 first accused him of molestation because he did not want to “tarnish” the family relationship and if the victim wanted to lie to her father, the Accused was fine to be the “scapegoat” because of the family. In my view, this altruistic and self-sacrificial claim did not sit well at all in the context of the evidence he gave himself of a family relationship where he was not close to the victim and her direct siblings. More fundamentally, this explanation made no sense.

105    When pressed on this point of confrontation and in particular why he did not deny the allegation, the Accused later said that he had clarified to PW1 that he had not done it, although this appeared to have taken place only after investigations commenced, which was years later.[note: 98] Ultimately, the evidence remained that when he was first confronted on an allegation of sexual assault against the victim in 2015, he never denied it.

106    Overall, from the way the Accused answered or refused to answer questions in cross examination, I had little faith in his credibility as a witness.

107    For completeness, I should also mention that there were other aspects of the Accused’s evidence which were raised by the Prosecution, but which I did not eventually put very much weight on.

108    The Accused was asked several times what reason there could be for either the victim or PW4 to make false allegations against him. It was also pointed out to him that he appeared to have changed his answers several times e.g. that the victim had wanted to use the police report to help PW1 pressure him into selling his property at Joo Seng Road, or that she did not like him as she may have felt like she lost her mother when the Accused came into her life. While I agreed that in answering these questions, the Accused was generally evasive, I did not think it unreasonable for him to grapple with the possible reasons the victim and PW4 might have for falsely accusing him, or to have come up with different possibilities at different stages. It was clear that he did not know of any reason, but I did not fault him for trying to think of the possibilities.

109    The Prosecution had also questioned the Accused on some inconsistencies between his evidence in court and the contents of his statement at P10, but I did not think these were material. For example, the Accused had not mentioned in the statement that the triplets had their own separate room at the Bury Road address; he did not mention that he had picked up the victim from school once; and he was sure in his statement that the victim never slept on the ground floor bedroom of the Aljunied unit. The Accused’s explanation for these inconsistencies was a lack of recollection, which I accepted. These related to a time in his life several years prior to giving his statement to the police, and it was reasonable for him to have forgotten these details when giving his statement.

110    In trying to explain away some of these inconsistencies, the Accused claimed that he had been detained for a night at the police station, developed a back pain and had to go to A&E the next day. He was therefore on painkillers when he recorded the statement[note: 99]. This was later proved by the Prosecution to be false because the arrest and medical records showed that the statement was recorded a few hours after the Accused was arrested on 24 May 2021, and the Accused only went to the hospital the next day on 25 May 2021. While this was certainly not satisfactory on the part of the Accused, I gave him the benefit of the doubt that he might have genuinely forgotten this detail in giving evidence. I did not think it uncommon that the sequencing of events in one’s memory might get mixed up.

111    However, I did find it telling that on more than one occasion when the Accused was directly confronted with an allegation of molest, his answer was not an outright denial. In P10, when he was first asked about the allegations of molest at the Bury Road address, his answer was that he did not remember, or that he did not think it happened and that he did not believe it was true.[note: 100] When he was asked in court about why PW4 would lie against him, the Accused said that he did not know if PW4 had lied or not, and explained that it was difficult for him to accept what PW4 said because of the inconsistencies between her account and the victim’s account. These responses struck me as odd. Why did it matter if there were inconsistencies in PW4’s evidence if he was innocent of the allegations? He may not know why PW4 lied, but he should have had no hesitation in saying that she had lied.

112    Based on the above, I took the view that the Accused’s evidence was not credible, and in some respects rather telling of his guilt.

No reason for victim and PW4 to lie in court

113    I found nothing to suggest that the victim or PW4 had lied in court, or had any reason to do so.

114    In cross examining PW1, the Defence had suggested that PW1 convinced or spoken to the victim to make her file the police report so as to pressure the Accused into selling his property at Joo Seng Road. PW1 vehemently denied this, and stated that she only knew that the victim had lodged a report after she was called up by the police for investigations. She also stated that she had not spoken to the victim for about two years prior to the report being lodged. This was corroborated by the victim, and I found it unlikely, especially given the evidence that the victim and PW1 did not even share a good relationship, that the victim would make a false report just for PW1. I noted that the Defence did not eventually pursue this point as well.

115    By the time the police report was lodged, the Accused and the victim had already been living apart for several years. It was therefore unlikely that the victim had made the report because she wanted to get out of the house, or that she was unhappy with the Accused for coming into her life.

116    As for PW4, the Accused was not able to come up with any suggestion as to why she would lie against her own biological father.

117    There was therefore no basis to find that the victim or PW4 had any reason to make a false allegation against the Accused.

Amendment of charges

118    The Defence took issue with amendments which had been made to the charges over the course of time. In particular, the 1st charge was drafted in October 2022, and read that the Accused had touched the victim’s chest over her clothes and touched the victim’s vagina with his fingers. At trial, this charge had been amended to only include the reference to touching the victim on her chest over her clothes. The Defence pointed out that there was no mention of the Accused touching the victim’s chest at all in her first two police statements recorded prior to October 2022, and therefore queried where those details had come from.

119    There was no ready explanation for this from PW8 ASP Seow who had drafted the charges, and who confirmed that she would not have made up facts to include in the charge. In cross examination, PW8 ASP Seow also agreed that the details of the charges must have come from the victim, and that there must have been other interviews the victim had with the police which were unrecorded.[note: 101]

120    I accepted that this must have been the case as well, and noted that this meant that from as early as before October 2022, the victim must have already mentioned to the police about an incident where the Accused had touched her chest i.e. the 1st charge.

121    Apart from this takeaway, I did not think that the issue of the charge amendments assisted me in my decision. The charges were drafted by the police and the Prosecution, and did not constitute statements made by the victim. She had no control over how the charges were drafted, and this process is also often dependent on the case strategy and assessments made by the police and Prosecution. Just because the police and Prosecution had initially used the word “fingers” instead of “finger”, or “rub” instead of “made contact with” was not relevant to my assessment of the victim’s credibility or consistency. There might well be occasions when amendments to charges raise suspicions as to whether the victim had materially vacillated between different versions, but I did not find this to be so in the present case. The amendments were not material.

Delay in reporting

122    The victim only lodged the police report more than five years after the last alleged incident. I should reiterate the general point that a delay in reporting in and of itself is not a reason to disbelieve a victim, and there is no general rule requiring victims of sexual offences to report the offences to the police immediately.[note: 102]

123    In the present case, the victim explained that she was not close to any of her family members at the material time and therefore did not tell anyone of the assaults. As mentioned above, this background was corroborated by evidence from PW3 and PW6. I noted that soon after the last incident, the victim moved out of the Aljunied unit and was no longer staying with the Accused. It was only after she started dating someone who encouraged her to make a report, and when she felt that her step-siblings were older and could take care of themselves, did she then find the courage to make a report. I found this explanation reasonable and accordingly did not fault the victim for the delay in reporting.

Time range set out in the charges

124    I was also satisfied that the time periods set out in the charges were sufficiently proven.

125    With regard to the 1st and 2nd charges, the time period set out was between 15 March 2005 and 2006. According to the SOAF, the victim was living at the Bury Road address from 15 March 2005 onwards. The victim’s evidence was that the incidents in the first two charges took place at the Bury Road address when she was in primary three or four. According to her birth year, as well as the school arrangements set out at paragraph 5 of the SOAF, these would have been the years 2005 and 2006. Therefore, the period set out in these charges were made out on the evidence.

126    With regard to the 3rd charge, the time period set out was between 15 March 2009 and 15 August 2010. This corresponded with the undisputed evidence that the victim and her family were living at 43 Jalan Loyang Besar then. The victim’s evidence was that this incident took place when they were living at 43 Jalan Loyang Besar, and she was in secondary school at that time. The period set out in the charge was therefore made out on the evidence.

127    With regard to the 4th charge, the time period set out is “sometime in 2015”. This was consistent with the victim’s evidence regarding the last time she was molested at the Aljunied unit.

Knowledge on the part of the Accused

128    Given the absence of any other explanation from the Accused, the relationship of stepfather and stepdaughter between the Accused and the victim, and the nature of the touches, it was an irresistible inference that when the Accused used such criminal force against the victim as set out in the four charges (see [76] above), he was intending to outrage her modesty.

Conclusion on conviction

129    The burden was on the Prosecution to prove the four charges against the Accused beyond a reasonable doubt.

130    With regard to the first three charges, the victim’s evidence was not directly corroborated. As such, the “unusually convincing” standard should apply. Based on my assessment of the evidence as set out above, I was satisfied that the victim’s evidence as a whole met the standard of being “unusually convincing”. This would include her evidence for the 4th charge, which was in any case, also corroborated by evidence from PW4.

131    The Accused’s defence was that of a bare denial. This was not objectionable in itself, but given the unsatisfactory way in which he gave evidence, I was of the view that he had not managed to raise a reasonable doubt in the Prosecution’s case. As such, I was satisfied that the Prosecution had proven all four charges against him beyond a reasonable doubt.

Sentencing

Antecedents

132    The Accused was untraced.

Submissions on sentence

133    There was no dispute between parties that the relevant sentencing frameworks were as set out in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) for the charges under s 354 of the 1985 Penal Code[note: 103] and s 354(1) of the 2008 Penal Code (the 1st, 2nd and 4th charges), and GBR v Public Prosecutor [2018] 3 SLR 1048 (“GBR”) for the charge under s 354(2) of the 2008 Penal Code (the 3rd charge).

134    Both sentencing frameworks took into account similar offence-specific aggravating factors[note: 104] such as:

(a)     The degree of sexual exploitation, including considerations of the part of the victim’s body that was touched, how the offender touched the victim and the duration of the outrage of modesty;

(b)     The circumstances of the offence, including the presence of premeditation, the use of force or violence, the abuse of a position of trust, the exploitation of a vulnerable victim and other aggravating acts accompanying the outrage of modesty; and

(c)     The harm caused to the victim, whether physical or psychological.

135    The relevant sentencing bands for the charges under s 354 of the 1985 Penal Code and s 354(2) of the 2008 Penal Code as set out in Kunasekaran at [49] are as follows:

Band

Description

Sentence

1

Cases which do not present any, or at most one, of the aggravating factors.

Less than five months imprisonment

2

Cases where there are two or more of the aggravating factors present.

Five to 15 months’ imprisonment

3

Most serious instances of aggravated outrage of modesty by reason of the number of aggravating factors, including cases involving the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust and/or the use of violence or force.

15 to 24 months’ imprisonment



136    The relevant sentencing bands for the charge under s 354(2) of the 2008 Penal Code as set out in GBR at [31] – [38] are as follows:

Band

Description

Sentence

1

Cases which do not present any, or at most one, of the aggravating factors.

Less than one year’s imprisonment

Caning is generally not imposed

2

Cases where there are two or more of the aggravating factors present.

One to three years’ imprisonment

Caning will nearly always be imposed, with a suggested starting point of at least three strokes

3

Most serious instances of aggravated outrage of modesty by reason of the number of aggravating factors, including cases involving the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust and/or the use of violence or force.

Three to five years’ imprisonment

Caning ought to be imposed, with a suggested starting point of at least six strokes.



137    Bearing the above frameworks in mind, the parties submitted for the following sentences:

Charge

Prosecution’s position

Defence’s position

1st charge DAC 916738-2022

Section 354 of the Penal Code (Cap 224, 1985 Rev Ed)

14 – 16 months’ imprisonment (Band 3)

5 months’ imprisonment (upper end of Band 1 or lower end of Band 2)

2nd charge DAC 916739-2022

Section 354 of the Penal Code (Cap 224, 1985 Rev Ed)

22 – 24 months’ imprisonment (Band 3)

14 months’ imprisonment (higher end of Band 2)

3rd charge DAC 916740-2022

Section 354(2) of the Penal Code (Cap 224, 2008 Rev Ed)

24 – 30 months’ imprisonment (middle of Band 2)

10 months’ imprisonment (upper end of Band 1)

4th charge DAC 916741-2022

Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)

12 – 14 months’ imprisonment + at least three strokes of the cane (1.5 months imprisonment in lieu of caning)

(Band 2)

5 months’ imprisonment (Band 1)

 

Global sentence of 46 – 54 months’ imprisonment + at least three strokes of the cane (1.5 months’ imprisonment in lieu of caning)

Global sentence of 24 months’ imprisonment



Prosecution’s arguments on sentence

138    The Prosecution relied on the following offence-specific aggravating factors in their sentencing submissions:

(a)      Abuse of trust over a long period of time. As the victim’s stepfather, the Accused was in a position of trust and responsibility towards her, and had breached this when he committed the offences over the course of 10 years. It was also pointed out that the offences had mostly been committed in the sanctity of the family home.

(b)      The victim was especially vulnerable. The victim was very young (between 8 – 13 years old) when the offences in the first three charges were committed against her. The offences also first commenced against the backdrop of a fractured family when the victim had to contend with significant changes in her life such as a stepfather and new living arrangements. In addition, the offences in the 1st and 4th charges had taken place when the victim was asleep. The fact that the victim was not close to her mother or any of her other family members compounded her vulnerability as she had no one to turn to.

(c)      Significant harm caused to the victim. A victim impact statement was tendered, wherein the victim spoke about the emotional and psychological harm she suffered and still suffers from. She wrote about how she had been “scarred badly” and how the Accused’s actions made her life “a living hell”. The Accused made her feel disgusted about herself, and she hated herself for not having stood up to his actions earlier.

(d)      There was premeditation. It was pointed out that the offences had mostly taken place at night, with the Accused specifically targeting the victim when no one else was present. It was argued that the Accused had picked and planned the moments to violate the victim when he believed he could get away with it.

139    With regard to offender-specific factors, the Prosecution submitted that the Accused should not be considered a first-time offender, given that the charges showed that he had been abusing the victim over the course of 10 years, and that he had shown no remorse.

140    As the Accused was above the age of 50 years and could no longer be caned, the Prosecution submitted that with regard to the 4th charge, a term of 1.5 months imprisonment in lieu of caning ought to be imposed in order to achieve a sufficiently retributive and deterrent sentence.[note: 105]

Defence’s arguments on sentence

141    While agreeing that the victim was vulnerable given her young age, the Defence argued that there was no abuse of trust or premeditation in the present case.

142    Although the Accused was the victim’s stepfather, this was a merely legal relationship and in fact, the victim did not rely on the Accused, was not dependent on him and did not trust him. Therefore, there was no abuse of trust.

143    There was no evidence that there was any significant planning or orchestration from the Accused in the course of committing the offences, and as such it could not be said that the offences were premeditated.

144    The Defence also referred to the following sentencing precedents by way of comparative analysis:

Offences under s 354 of the 1985 PC and s 354(1) of the 2008 PC

(a)      BZT: The offender was convicted after trial on eight charges of committing sexual offences against two young victims (between seven to 11 years old), who were the children of his girlfriend. In particular, for a charge of rubbing his penis against the victim’s buttocks over her clothes, using his hand to rub the victim’s vagina skin-to-skin, and rubbing his penis against the victim’s vagina area skin-to-skin, a sentence of one and a half years’ imprisonment and six strokes of the cane was imposed. The High Court agreed that this set of facts fell within the high end of Band 3 of the Kunasekaran framework. The offender was convicted on a total of eight charges, with four charges taken into consideration, and was sentenced to a global term of 18 years’ imprisonment and 24 strokes of the cane.

(b)      PP v Cheng Kim Han Stanley [2019] SGMC 66: The offender was convicted after trial on two charges under s 354(1) of the 2008 PC committed against his domestic worker. For a charge of hugging the victim from behind and using his hand to press her right breast, the offender was sentenced to a term of 10 months’ imprisonment.

(c)      PP v GFV [2023] SGDC 147: The offender was convicted after trial on five charges under s 354(1) and s 354(2) of the 2008 PC, committed against his daughter between the ages of 10 to 17 years old. One of the charges under s 354(1) of the 2008 PC involved the offender squeezing the victim’s breast over her clothes when she was 13 years old, and another involved the offender rubbing the victim’s vagina over her shorts with his fingers when she was 16 years old. For each of these charges, the offender was sentenced to eight months’ imprisonment. His global sentence was a term of 58 months’ and four weeks’ imprisonment.

(d)      PP v Ong Jun Yong [2024] SGMC 6: The offender was convicted after trial on one charge under s 354(1) of the 2008 PC, for having slipped his hand into the victim’s dress and touching her left breast over her bra. The offence took place at a nightclub, and the offender was sentenced to a term of six months’ imprisonment.

Offences under s 354(2) of the 2008 PC

(a)      PP v GEE [2022] SGDC 14: The offender was convicted after trial on three charges under s 354(2) of the 2008 PC, one of which was an attempt. The offender was the form teacher of the 12 year old male victim. For a charge involving the offender using his hand to tap the victim’s penis over his shorts, a sentence of 12 months’ imprisonment was imposed. For a charge involving the offender inserting his hand into the victim’s shorts and underwear and touching the victim’s penis skin-to-skin, a sentence of 24 months’ imprisonment and three strokes of the cane was imposed.

(b)      PP v GHI [2023] SGDC 295: The offender was convicted after trial on one charge under s 354(2) of the 2008 PC for touching the 10 year old victim’s right breast over clothes, placing his hand on her thigh, touching her crotch area over clothes, and kissing the back of her neck. The offender was the victim’s tutor, and was sentenced to a term of 14 months’ imprisonment. As the offender was of the age where he could not be caned, an additional two months’ imprisonment in lieu of caning was imposed.

(c)      PP v GDX [2021] SGDC 142: The offender was convicted after trial on two charges under s 354(1) and one charge under s 354(2) of the 2008 PC. For the charge under s 354(2), the offender had touched the victim’s left breast over her clothes. The victim was the offender’s stepdaughter and between 11 to 12 years old at the time of this offence. He was sentenced to a term of 14 months’ imprisonment[note: 106] for the charge under s 354(2), with a global sentence of 32 months’ imprisonment. As the offender was of the age where he could not be caned, an additional 18 weeks’ imprisonment in lieu of caning was imposed.

145    The Defence pointed out that claiming trial was not an aggravating factor, and that there were no charges to be taken into consideration when sentencing. It was also submitted that no imprisonment in lieu of caning ought to be imposed, relying on the dicta in Amin bin Abdullah v PP [2017] 5 SLR 904 at [53]. There were no substantial aggravating factors in the present case which would warrant a departure from the starting point that the sentence should not be enhanced in lieu of caning by default.

Court’s decision on sentence

146    These sexual offences were committed by the Accused over the course of a decade against his own stepdaughter, who was only between nine and 10 years old when he started. There could be no real doubt that the dominant sentencing principles were those of deterrence and retribution. See Public Prosecutor v NF [2006] 4 SLR(R) 849 at [49].

147    The relevant sentencing frameworks are set out in Kunasekaran and GBR. See [135] and [136] above. In order to determine which sentencing band the present case fell within and the appropriate starting points, I considered the offence specific factors which applied.

Abuse of trust

148    I unequivocally rejected the submission by the Defence that there was no abuse of trust because there was in fact no real relationship of trust between the Accused and the victim, and the Accused did not take care of her. The Accused was the victim’s stepfather, and in that capacity he lived in the same residence as her and had access to her without question or suspicion. As her stepfather, he was in a position of authority to her, and was supposed to protect and care for her. Instead of doing so, he abused this position by molesting her on multiple occasions. As pointed out by the Prosecution, most of the offences also took place in the sanctity of her own home. In these circumstances, there was clearly an egregious abuse of trust which I took into consideration in sentencing.

Vulnerability of the victim

149    The offences were committed against the victim when she was very young. In particular, she was only between nine to 10 years old when the offences at the Bury Road address were committed, and between 12 to 13 years old when the offence at 43 Jalan Loyang Besar was committed. Based on her age alone, she was clearly a vulnerable victim. The offences were also committed in her home, and sometimes when she was sleeping at night.[note: 107]

Harm caused

150    Based on the victim impact statement, I accepted that significant emotional and psychological harm had been caused to the victim, and that she still suffered from the effects of the offences up to now. Indeed, this was not surprising given the duration of the offending, the fact that it all started when she was still so young, and by a man who was supposed to be her stepfather.

No significant premeditation

151    For completeness, I should state that I did not agree with the Prosecution that there was significant premeditation in the present case. Just because the Accused had managed to commit the offences over the course of 10 years without being discovered did not lead to the necessary inference that the offences had been meticulously planned. There was no such evidence, and I therefore declined to consider this as a relevant offence-specific factor.

Mitigating factors

152    I accepted that the Accused should not be penalised for claiming trial, but this was not a mitigating factor, and I could find nothing of mitigatory value in the present case. It could not be said that the Accused was remorseful, and indeed he did not profess as such, even in his mitigation. Given that the Accused had committed multiple offences, the first of which was committed sometime in 2005 or 2006, I did not treat him as a first offender.

The appropriate starting points

153    With regard to the 1st charge, the Accused had touched the victim’s chest over her clothes. The degree of sexual exploitation was not particularly high, although I would disagree with the characterisation by the Defence that there was no intrusion into the victim’s private parts as her breasts had still not developed. The victim already knew at that time that her chest was a private area she was not supposed to show other people, and the intrusion she felt would therefore be no less than if she already had fully developed breasts. In addition, there were at least three offence-specific factors triggered – the victim’s age and vulnerability, the abuse of trust, and the significant harm caused to the victim. In particular, I noted that the offence had been committed against her in the sanctity of her own bedroom and when she was sleeping. In the circumstances, I took the view that this fell somewhere between the middle to high end of Band 2 in the Kunasekaran framework, and a starting point of 12 months’ imprisonment was appropriate.

154    With regard to the 2nd charge, the Accused had touched the victim’s vagina with his finger and made contact between his penis and her vagina, skin-to-skin. The degree of sexual exploitation was very high, and the same three offence-specific factors as in the 1st charge applied. In the circumstances, I took the view that this clearly fell within the high end of Band 3 of the Kunasekaran framework, and taking guidance from the precedent in BZT which involved a similar charge, a starting point of 18 months’ imprisonment was appropriate.

155    With regard to the 3rd charge, the Accused touched the victim on her bare thigh, and her breast over her clothes. The degree of sexual exploitation was not particularly egregious but it did involve an intrusion into the victim’s private parts and had also occurred when the victim was sleeping. As the charge was under s 354(2) of the 2008 PC, I was mindful not to take the victim’s age into account as an additional offence-specific factor. Nevertheless, the factors of abuse of trust and harm caused to the victim were still present, and in my view, the case fell within the lower end of Band 2 in the GBR framework. A starting point of 16 months’ imprisonment was appropriate.

156    With regard to the 4th charge, the Accused had touched the victim on her thigh and her breasts. The degree of sexual exploitation was similar to the 1st and 3rd charges, with the key difference being the victim’s age. She would have been about 19 years old at the time of this offence. I therefore took the view that the case fell within Band 2 of the Kunasekaran framework, and slightly lower than for the 1st charge. A starting point of 10 months’ imprisonment would be appropriate.

157    I found no significant mitigating factors in the present case, and no significant aggravating factors other than those identified above as relevant offence specific factors. There was therefore no reason to adjust the starting points.

Imprisonment in lieu of caning

158    Given the relationship between the Accused and the victim and the resulting abuse of trust, the vulnerability of the victim as well as the harm caused to her, caning ought to have been imposed for the charges. However, the Accused was more than 50 years old at the time of sentencing and could no longer be punished with caning. Under s 325(5) of the CPC, no imprisonment in lieu of caning could be ordered for the first three charges as they involved offences committed before 2 January 2011. The only charge for which imprisonment in lieu could be ordered was the 4th charge.

159    There was of course no mandatory requirement or even a default position to impose imprisonment in lieu of caning.[note: 108] However, this might be appropriate where there were substantial aggravating factors warranting a sufficiently deterrent and retributive sentence.[note: 109] I was satisfied that this was true for the present case. The victim was the Accused’s stepdaughter and the offence had been committed in the domestic context and within her own home. By the time the offence in the 4th charge occurred, the victim had already suffered a history of sexual abuse spanning a decade, starting from when she was barely 10 years old. In my view, these circumstances placed her in a particularly vulnerable class of victims warranting a sufficiently deterrent and retributive sentence to properly reflect the disapprobation the courts take to such offences.

160    Bearing the above in mind, I took the view that a term of six weeks’ imprisonment in lieu of three strokes of the cane was appropriate for the 4th charge.

Global sentence

161    Under s 307(1) of the CPC, two of the sentences had to be ordered to run consecutively, and I agreed with the submission by both parties that the sentences for the 2nd and 3rd charges should run consecutively.

162    These charges involved distinct offences and did not run afoul of the one-transaction rule. I was also satisfied that the resulting global term of 34 months’ imprisonment (and six weeks in lieu of caning) was in line with the totality principle and an adequate and necessary reflection of the Accused’s culpability in the present case.

Conclusion (sentence)

163    The sentences imposed on the Accused were therefore as follows:

Charge

Sentence imposed

1st charge DAC 916738-2022

12 months’ imprisonment

2nd charge DAC 916739-2022

18 months’ imprisonment

3rd charge DAC 916740-2022

16 months’ imprisonment

4th charge DAC 916741-2022

10 months’ imprisonment + six weeks’ imprisonment in lieu of three strokes of the cane.

Global sentence

34 months’ imprisonment + six weeks’ imprisonment in lieu of caning



[note: 1]Admitted and marked SOAF.

[note: 2]Admitted and marked P1.

[note: 3]The victim’s school record from the Ministry of Education was admitted and marked P2.

[note: 4]The floorplan of the Bury Road address was admitted and marked P3.

[note: 5]Photographs of the carpark at 43 Jalan Loyang Besar, which layout had not changed since the material time they were staying there, were admitted and marked P4-1 to P4-14.

[note: 6]The vehicle ownership record for the Honda Odyssey was admitted and marked P5.

[note: 7]The rental records for the Aljunied unit during the period of 16 August 2010 to 30 November 2016 was admitted and marked P6.

[note: 8]See P1.

[note: 9]See Notes of Evidence (“NE”), 3 Nov 2023, 6/20-23.

[note: 10]See NE, 3 Nov 2023, 11/21 – 12/6.

[note: 11]See NE, 3 Nov 2023, 12/6-25; 16/28-30.

[note: 12]See NE, 3 Nov 2023, 15/1-12.

[note: 13]See NE, 3 Nov 2023, 16/21.

[note: 14]See NE, 3 Nov 2023, 21/23.

[note: 15]See NE, 3 Nov 2023, 17/12-26.

[note: 16]See NE, 3 Nov 2023, 19/19 – 20/7.

[note: 17]See NE, 3 Nov 2023, 22/9 – 23/4.

[note: 18]See NE, 3 Nov 2023, 25/1 – 26/4.

[note: 19]See NE, 3 Nov 2023, 28/2-20.

[note: 20]See NE, 3 Nov 2023, 31/20 – 32/6.

[note: 21]See NE, 3 Nov 2023, 34/7-14.

[note: 22]See NE, 3 Nov 2023, 32/26 – 33/12.

[note: 23]See NE, 3 Nov 2023, 34/22 – 35/7.

[note: 24]See NE, 3 Nov 2023, 38/1-6.

[note: 25]See NE, 3 Nov 2023, 45/5-11.

[note: 26]See NE, 3 Nov 2023, 48/28 – 49/10.

[note: 27]See NE, 3 Nov 2023, 45/26.

[note: 28]See NE, 9 Nov 2023, 43/11.

[note: 29]See Notes of Evidence (“NE”), 2 Nov 2023, 20/6-19.

[note: 30]See NE, 2 Nov 2023, 23/22-32.

[note: 31]See NE, 2 Nov 2023, 37/7-28.

[note: 32]See NE, 8 Nov 2023, 9/1 – 23.

[note: 33]See NE, 8 Nov 2023, 9/23-28.

[note: 34]The handwritten note was admitted and marked P7.

[note: 35]See NE, 8 Nov 2023, 13/11-12.

[note: 36]See NE, 8 Nov 2023, 15/5-8.

[note: 37]See NE, 8 Nov 2023, 16/14-17.

[note: 38]See NE, 8 Nov 2023, 18/13-22.

[note: 39]See NE, 8 Nov 2023, 16/28-30.

[note: 40]See NE, 8 Nov 2023, 23/26 – 24/9.

[note: 41]See NE, 8 Nov 2023, 28/10-25.

[note: 42]See NE, 8 Nov 2023, 5/31 – 6/1; 8/20-22.

[note: 43]See NE, 10 Nov 2023, 44/1-7; 52/30-31.

[note: 44]See NE, 10 Nov 2023, 44/18 – 46/5; 56/16-18; 58/28-29.

[note: 45]See NE, 10 Nov 2023, 46/16 – 47/32.

[note: 46]See NE, 10 Nov 2023, 45/27 – 46/2.

[note: 47]See NE, 10 Nov 2023, 50/27 – 51/9.

[note: 48]See NE, 10 Nov 2023, 68/8-10; 69/1-32.

[note: 49]See NE, 21 Nov 2023, 4/29-31.

[note: 50]See NE, 21 Nov 2023, 5/9-12.

[note: 51]See NE, 21 Nov 2023, 7/20-32.

[note: 52]PW6 Kenston’s NS leave records for 2015 were admitted and marked P8, indicating two dates when he was on afternoon leave – 14 September 2015 and 2 October 2015.

[note: 53]See NE, 21 Nov 2023, 5/21 – 7/13.

[note: 54]See NE, 21 Nov 2023, 8/11-25.

[note: 55]See NE, 21 Nov 2023, 13/30 – 14/14.

[note: 56]See NE, 21 Nov 2023, 19/17-21.

[note: 57]Admitted and marked D2.

[note: 58]Admitted and marked D3.

[note: 59]Admitted and marked D4.

[note: 60]See NE, 4 Mar 2024, 9/16-17.

[note: 61]See NE, 4 Mar 2024, 16/11-12.

[note: 62]See NE, 4 Mar 2024, 46/28-31.

[note: 63]See NE, 4 Mar 2024, 11/22-32.

[note: 64]See NE, 4 Mar 2024, 14/10-11.

[note: 65]See NE, 4 Mar 2024, 15/17-21; 16/28-31.

[note: 66]See NE, 4 Mar 2024, 17/7-12.

[note: 67]See NE, 4 Mar 2024, 15/24 – 16/3.

[note: 68]See NE, 4 Mar 2024, 24/18-29.

[note: 69]See NE, 4 Mar 2024, 27/8-31.

[note: 70]See NE, 4 Mar 2024, 29/26 – 31/8.

[note: 71]See NE, 4 Mar 2024, 33/31 – 34/23.

[note: 72]See NE, 4 Mar 2024, 35/8.

[note: 73]See NE, 4 Mar 2024, 38/13 – 39/9.

[note: 74]See NE, 4 Mar 2024, 44/9-23.

[note: 75]See NE, 4 Mar 2024, 39/25 – 40/8.

[note: 76]See NE, 5 Mar 2024, 14/21 – 17/3.

[note: 77]See PP v Mohd Taufik bin Abu Bakar and Anor [2019] SGHC 90 at [33].

[note: 78]See PP v GCK and Anor [2020] 1 SLR 486 (“GCK”) at [87-88], citing PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Liton”) at [38].

[note: 79]See GCK at [88].

[note: 80]See NE, 9 Nov 2023, 30/16-32.

[note: 81]Admitted and marked D1.

[note: 82]See NE, 10 Nov 2023, 4/10-31; 30/6-10.

[note: 83]Admitted and marked D3.

[note: 84]See NE, 10 Nov 2023, 16/10-19.

[note: 85]See NE, 9 Nov 2023, 51/17-21.

[note: 86]See NE, 10 Nov 2023, 13/3-5.

[note: 87]See NE, 10 Nov 2023, 19/28.

[note: 88]See NE, 10 Nov 2023, 35/17 – 37/8.

[note: 89]See NE, 10 Nov 2023, 10/29 – 11/5.

[note: 90]See NE, 10 Nov 2023, 20/23-30.

[note: 91]See Liton at [39].

[note: 92]See VRI statement admitted and marked as exhibit P10, at pages 8, 11, 12, 24 and 41.

[note: 93]See P10 at page 15.

[note: 94]See NE, 5 Mar 2024, 50/5-17.

[note: 95]See NE, 5 Mar 2024, 20/21.

[note: 96]See NE, 5 Mar 2024, 18-25.

[note: 97]See P10 at page 46.

[note: 98]See NE, 5 Mar 2024, 62/12-13.

[note: 99]See NE, 4 Mar 2024, 73/5-14;

[note: 100]See exhibit P10 at pages 26 – 27.

[note: 101]See NE, 21 Nov 2023, 43/7-12.

[note: 102]See Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2019] SGCA 47 at [67], citing DT v Public Prosecutor [2001] 2 SLR(R) 683 at [62].

[note: 103]Relying on the dicta in Public Prosecutor v BZT [2022] SGHC 148 (“BZT”) at [5].

[note: 104]See GBR at [27] – [30].

[note: 105]As the other charges involved offences committed before 2 January 2011, no imprisonment in lieu could be imposed. See s 325(5) of the Criminal Procedure Code 2010 (“CPC”).

[note: 106]The court was of the view that a term of 16 months’ imprisonment would be appropriate, but calibrated the eventual sentence downwards in view of the totality principle. See [241] of the judgment.

[note: 107]See BZT at [47].

[note: 108]See Amin bin Abdullah v Public Prosecutor [2017] 5 SLR 904 at [53] and [54].

[note: 109]See GBR at [40].

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Public Prosecutor v Teo Linfeng (Zhang Linfeng), Melvin
[2024] SGDC 234

Case Number:District Arrest Case Nos. 913832-5 of 2024, Magistrate's Appeal No. 9172-2024-01
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: John Ng
Counsel Name(s): ASP Jimmy Yap (Singapore Police Force) for the Public Prosecutor; The Accused was unrepresented.
Parties: Public Prosecutor — Teo Linfeng (Zhang Linfeng), Melvin

CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Road Traffic Act – Drink-driving Offences – Repeat Offender

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9172/2024/01.]

13 September 2024

District Judge John Ng:

Introduction

1       In the year 2009, on the 8th of January, the Accused – Teo Linfeng (Zhang Linfeng), Melvin – pleaded guilty and was convicted of a charge of driving a vehicle when the proportion of alcohol in his body had exceeded the prescribed limit. He was sentenced to a fine of $3,000 and disqualified from driving for two years. Prior to that, on 23 April 2008, the Accused had pleaded guilty to and was convicted of Inconsiderate Driving (resulting in an accident) and he was sentenced to a fine of $700 with 9 demerit points (see Conviction History tendered by the Prosecution, printed and dated 24 June 2023).

2       On 26 August 2024, before me in the Traffic Court, the Accused pleaded guilty to two charges of drink-driving under the Road Traffic Act 1961 (“RTA”) which offences were committed on two different occasions in 2023. The first occasion was on 24 June 2023 and the second occasion was on 6 August 2023. These two offences were committed less than two months apart. He also admitted to the commission of two other offences under Section 122 RTA for causing obstruction to other road users on those two occasions and consented for these two charges to be taken into consideration for sentencing.

3       The Accused admitted to the Statement of Facts presented by the Prosecution detailing the circumstances of the commission of the two offences and he was convicted of the two drink-driving charges accordingly. The Accused was a repeat offender and therefore punishable under Section 67(1) RTA with a fine of not less than $5,000 and not more than $20,000 and to imprisonment for a term not exceeding 2 years on each of the two charges. That is to say, there was a mandatory minimum fine to be imposed of $5,000 and mandatory imprisonment of up to 2 years for each offence.

4       The Accused was sentenced on 26 August 2024 to a total fine of $19,000 ($7,000 fine for DAC 913832/2024 [the June 2023 offence] and $12,000 for DAC 913834/2024 [the subsequent August 2023 offence]) and nine months of imprisonment in total for the two offences of drink-driving (two months for the June 2023 offence and seven months for the later August 2023 offence, running consecutively). The Accused had indicated that he wanted to begin his sentence on that day and started serving his sentence on the same day that his guilty pleas were taken. Eight days into serving his sentence, the Accused filed this appeal against sentence (but not against the disqualification orders) from prison. The Accused has not applied for bail pending appeal and is currently serving his sentence of imprisonment.

Summary of Facts

5       Based on the Statement of Facts, the salient aspects of this case can be summarized as follows:

(a)     For the first drink-driving incident on 24 June 2023, the Accused was spotted sleeping inside a stationary motorcar at about 3.57 a.m. The car was stationary in the middle of the road – on Lane 2 of the three-lane Killiney Road towards the direction of River Valley Road. The police response officer at scene saw the Accused in the driver’s seat. The Accused was slumped forward and sleeping whilst the engine of the car was still running. The Accused did not have his seatbelt strapped on and the headlights of the car were switched on.

(b)     The police officer managed to wake the Accused up by knocking on the side window of the driver’s seat. The Accused reeked of alcohol and a breathalyser test was conducted and the result showed “Fail”. The Accused was placed under arrest for driving under the influence of alcohol and escorted to the Police Cantonment Complex. At the complex, the Accused was not able to provide his breath and consented to provide his blood sample for a blood test. The blood test revealed that the proportion of alcohol in the blood was 115 milligrams of alcohol in 100 millilitres of blood (the equivalent value for breath after conversion is 50.31 micrograms of alcohol per 100 ml of breath).

(c)     For the subsequent drink-driving incident on 6 August 2023, the Accused had consumed alcohol at a discotheque located at Orchard Road with a friend. After his last drink, the Accused drove his friend home in Eunos before he proceeded to head to his home in Yishun via the Pan Island Expressway (“PIE”).

(d)     At the PIE, a motorcycle collided onto the rear of the car of the Accused when it was stationary on Lane 3 of three lanes. The Accused had fallen asleep at the wheel and he was woken up by the police officers who had responded to a report of the road traffic accident and who had attended at the scene of the accident.

(e)     The Accused only realized that there was an accident involving his car and a motorcycle, after he had alighted from the driver’s seat subsequent to being woken up by one of the police officers. Upon interviewing the Accused, the police officer noticed that the Accused reeked of alcohol. An instant breathalyser test was carried out and the result showed “Fail”. The Accused was placed under arrest for driving under the influence of alcohol and escorted to Traffic Police Headquarters (“TPHQ”). The rider of the motorcycle and a female pillion were conveyed to Tan Tock Seng Hospital.

(f)     At the TPHQ, the breath test on the Accused revealed that the proportion of alcohol in his breath was 62 mcg of alcohol in 100 ml of breath. The prescribed legal limit is 35 mcg of alcohol in 100 ml of breath.

Conviction History

6       The Accused has a long string of antecedents for various offences connected to the driving of a vehicle, as reflected in the table below:

Date of Offence

Nature of Offence

Outcome

27 March 2002

Failure to display sign during probation period

Paid composition fine of $120

14 July 2002

Protective helmet not worn securely

Paid composition fine of $120 (3 demerit points)

12 September 2002

Wearing helmet fitted with unapproved visor

Paid composition fine of $50

5 October 2002

Parking on footway

Paid composition fine of $70

19 February 2003

Parking on footway

Paid composition fine of $70

4 March 2003

Riding without headlamp light

Paid composition fine of $30

2 April 2003

Going against the flow of traffic

Paid composition fine of $150 (6 demerit points)

17 November 2004

Speeding

Paid composition fine of $170 (8 demerit points)

2 June 2007

Speeding

Paid composition fine of $130 (4 demerit points)

18 January 2008

Inconsiderate driving causing accident

Convicted on 23/4/2008 and sentenced to fine of $700 (9 demerit points)

12 December 2008

Drink-driving

Convicted on 8/1/2009 and sentenced to fine of $3,000, two years of DQ

30 November 2017

Speeding

Paid composition fine of $150 (6 demerit points)

28 September 2018

Speeding

Paid composition fine of $150 (6 demerit points)

15 December 2019

Failing to conform to red light signal

Paid composition fine of $400 (12 demerit points)

29 March 2021

Speeding

Paid composition fine of $200 (6 demerit points)

DQ refers to the period of Disqualification from Driving



Prosecution’s Submissions on Sentence

7       The Prosecution’s submissions on sentence were as follows:

(a)     The alcohol level of the Accused for the June 2023 offence fell within Band 1 of the Rafael Voltaire Alzate v PP [2022] 3 SLR 993 (“Rafael Voltaire”) Framework. Based on the guidelines laid down by the Chief Justice Sundaresh Menon for repeat drink-driving offenders in the case of Lee Shin Nan v PP [2023] SGHC 354 (“Lee Shin Nan”), the indicative fine would be between $5,000 to $8,000 and a disqualification period of 60 to 66 months. The Prosecution proposed that the punishment for the offence on this occasion ought to be a fine between $7,000 and $8,000, a disqualification period of 5 years and an imprisonment term of two months.

(b)     The alcohol level of the Accused for the August 2023 offence of 62 mcg of alcohol per 100 ml of breath, fell within Band 2 of the Rafael Voltaire framework. The indicative fine under the Lee Shin Nan guidelines would be a fine from $8,000 to $11,000, with a disqualification period of 66 to 78 months. The Prosecutor sought for a sentence of $12,000 fine, 8 years of disqualification from driving and an imprisonment term of nine months.

(c)     The Prosecution highlighted that the principle of escalation should apply in view of the repeat offending by the Accused for the offences. The Accused committed the subsequent drink-driving offence in August 2023 despite knowing that he would be facing police action for a similar offence of drink-driving committed in June 2023. Furthermore, the subsequent offence resulted in an accident on the expressway involving a motorcycle with a rider and a pillion.

(d)     The Prosecution submitted that the custodial sentences for the two offences ought to run consecutively as these were two separate incidents. There were also the further two charges for causing obstruction to be taken into consideration for the purpose of sentencing.

Mitigation

8       The Accused had nothing to say.

Sentence

9       The applicable punishment provision for a repeat drink-driving offender is Section 67(1) RTA which mandates the imposition of a fine of a minimum of $5,000 and a maximum of $20,000 and an imprisonment term not exceeding two years. It is further provided in Section 67(2)(b) RTA for a repeat offender that a disqualification specified period of not less than 5 years starting from the date of release from prison must be ordered, unless there are special reasons not to do so. Based on the circumstances of the case, the relevant sentencing factors, the nature of the offences, the type of offender and the absence of special reasons, the sentences of imprisonment, fines and disqualification from driving imposed for the individual offences were:

CHARGE NO.

IMPRISONMENT

FINE

DISQUALIFICATION

DAC 913832 of 2024

Two Months (consecutive)

$7,000

Five Years

DAC 913834 of 2024

Seven Months (consecutive)

$12,000

Eight Years

Total Sentence:

Nine (9) months of imprisonment, $19,000 fine and eight (8) years of disqualification from date of release from prison.

Two Charges Taken Into Consideration For The Purpose Of Sentencing.



10     The calibration on the specific type of sentence and the reasons for the individual punishment of the offences are elaborated below.

The Guidance of The High Court

11     The first port of call in sentencing repeat drink-driving offenders is the High Court case of Lee Shin Nan. At [57] of Lee Shin Nan, the following approach was provided for guidance by CJ Menon on 18 December 2023:

“57    In my judgment, in the light of the foregoing considerations, the sentencing framework for repeat drink driving offences should comprise a four-stage process (the “Repeat Offences Framework”), as follows:

(a)     Stage 1 – Starting sentence range: The court should first determine the sentence range for the offence based on the offender’s Alcohol Level Band as if the offender were a first-time offender, using the sentencing ranges set out in the Rafael Voltaire Framework, and then apply an uplift to the range of the fine and the disqualification period taking into account only the level of alcohol for the present conviction.

(b)     Stage 2 – Adjustment on account of the repeated offending behaviour: The court should pay particular attention to the consideration of those factors that pertain to the repetition of the offending behaviour. This will bear on the calibration of the fine and disqualification period and the court should arrive at a provisional assessment of these punishments within the applicable range.

(c)     Stage 3 – Adjustment to account for aggravating and mitigating circumstances: The court should next consider the aggravating and mitigating circumstances of the offence and the offender and make any further adjustments to the provisional assessment of the fine and disqualification period.

(d)     Stage 4 – Final Adjustment: The court will finally calibrate the appropriate term of imprisonment having regard in particular to the need for deterrence and then finally review the sentence as a whole.”

The Quantum of Fines

12     The Accused was previously fined $3,000 in 2009. A significant escalation of the fines to be imposed for the repeat offending is already built into the punishment provision for repeat offenders. The mandatory minimum fine is $5,000 and the maximum is set at $20,000.

13     The Chief Justice provided a tabular summary of the starting ranges for repeat offenders at [63] of his judgment. The relevant extract touching on Fines for the present purposes is as follows:

Level of alcohol

(mcg per 100ml of breath)

Indicative band for repeat offenders

36-54

Fine: $5,000-$8,000

55-69

Fine: $8,000-$11,000

70-89

Fine: $11,000-$14,000

90 and above

Fine: $14,000-$17,500



14     Applying the Repeat Offences Framework of Lee Shin Nan first to the fines imposed, for the offence committed on 24 June 2023, the alcohol level of 50.31 mcg per 100 ml of breath is at the first of the Alcohol Level Band. The applicable sentence range is $5,000-$8,000. On account of 50.31 mcg alcohol being in the upper middle of that range, together with the causing of obstruction to other road users in the repeated offending behaviour (i.e. the TIC charge), the sentence of the fine is calibrated at $7,000 for the offence of 24 June 2023. The fact that there was no injury or property damage and the show of remorse in pleading guilty have been taken into account in imposing a sentence at the lower end of $7,000 instead of $8,000 in the range submitted by the Prosecution.

15     For the subsequent offence committed on 6 August 2023, the occurrence of the accident, involving the motorcycle with the rider and pillion, was a highly aggravating factor. This was a case where the drink-driving offence had caused harm but the offender was only charged with the offence under Section 67(1) RTA. No other charges in relation to the harm caused had been preferred against the Accused in this case. The damage to the motorcycle is not known and the injury caused to the rider and his pillion in the present case is also unknown as there were no Medical Reports tendered. Nevertheless, the fact of harm caused could not be ignored and in fact ought to be considered an aggravating factor justifying a significant uplift.

16     Applying the Repeat Offences Framework of Lee Shin Nan, for the offence committed on 6 August 2023, the alcohol level of 62 mcg of alcohol per 100 ml of breath is at the second of the Alcohol Level Band. The applicable sentence range is $8,000-$11,000. On account of 62 mcg alcohol being right in the middle of that range, the starting point would be a fine of $9,500. A further uplift of $2,500 was warranted in view of the fact that this 6 August 2023 offence was the 3rd time of drink-driving committed by the Accused, occurring six weeks after committing his 2nd drink-driving offence on 24 June 2023 to arrive at the calibration of the fine to be imposed at $12,000 for the August 2023 offence. The TIC charge of causing obstruction to other road users and the plea of guilty were also factored into the calibration.

Disqualification Orders

17     Turning now to the Disqualification Orders, the Accused was previously disqualified from driving for two years in 2009. A significant escalation of the Disqualification Orders had to be imposed for the repeated offending in order to give effect to the sentencing principle of prevention and enhancing protection for the community.

18     The current two drink-driving offences attracted the specified minimum disqualification period of five years per charge from the date of release from prison under Section 67(2)(b) RTA. There were no special reasons provided by the Accused to obviate the application of the specified minimum period of disqualification.

19     The relevant extract touching on the starting ranges of Disqualification for repeat offenders (from the tabular summary provided by the Chief Justice at [63] of his judgment) is as follows:

Level of alcohol

(mcg per 100ml of breath)

Indicative band for repeat offenders

36-54

Disqualification: 60-66 months

55-69

Disqualification: 66-78 months

70-89

Disqualification: 78-96 months

90 and above

Disqualification: above 96 months



20     Applying the Repeat Offences Framework of Lee Shin Nan to the Disqualification to be imposed for the offence committed on 24 June 2023, the alcohol level is at the lowest band which attracts a range of 60-66 months i.e. five to five and a half years of disqualification. The imposition of a disqualification from driving for five years for the drink-driving offence was the specified minimum period under the RTA.

21     The offence on 6 August 2023 was the Accused’s 3rd drink-driving offence and therefore there has to be an uplift from the specified minimum period of disqualification of five years to reinforce the deterrent effect and increase the protection of other public road-users. A calibration of a disqualification period of eight years from the date of release from prison was required to reflect the severity of what was effectively the Accused’s third commission of the same RTA offence. If anything, eight years could be seen as being on the lenient side, bearing in mind that a third conviction for the offence of drink-driving would have attracted a mandatory lifetime ban in the absence of any special reasons.

22     In any event, the Accused had indicated in the Notice of Appeal that he was not appealing against the orders of disqualification.

The Length of Total Imprisonment

23     Turning finally to the sentence of imprisonment imposed. A sentence of two months (for the June 2023 offence) and seven months (for the August 2023 offence) of imprisonment to run consecutively are amply justified.

24     At [70] of Lee Shin Nan, the CJ observed that:

“A term of imprisonment is mandatory for repeat offenders and arises from the parliamentary intent to deter recalcitrant drink driving and to prevent accidents, injury and death that can needlessly arise from drink driving. As such, its length will be determined primarily by the need for deterrence (both general and specific) and the need to punish especially culpable behaviour (see Singapore Parliamentary Debates, Official Report (28 March 1990) vol 55 at cols 960–961, 964–965 and 974 (Prof S. Jayakumar (Minister for Home Affairs), Dr Arthur Beng Kian Lam, Mr Chng Hee Kok); Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423 at [14]).”

25     The CJ added:

“when assessing the term of imprisonment. Such factors include: (a) the manner and circumstances of driving and road conditions; (b) the nature and number of relevant antecedents; (c) the recency of antecedents; and (d) the actual and potential danger posed to others. These appear to be the key factors that are relevant to deterrence (both general and specific) and to why imprisonment was made mandatory for this class of offenders.”

26     At [71] of Lee Shin Nan, the Chief Justice provided three broad classes with their corresponding indicative sentencing bands of imprisonment terms for repeat offenders under Section 67(1) RTA. These are:

(a)     serious: 1-6 months’ imprisonment;

(b)     more serious: 6-12 months’ imprisonment; and

(c)     most serious: 12-24 months’ imprisonment.

27     The offences in the present case are repeated offences committed by the Accused and the dominant sentencing principle is that of Specific Deterrence. The Accused had shown a blatant disregard for the law and the commission of these two offences revealed an intransigent behaviour that must be met with escalating lengths of incarceration, both to punish the Accused and to protect the members of the road-using public.

28     For the June 2023 offence, it fell within the first sentencing band of “serious” category with the starting range of 1-6 months’ imprisonment as it has zero to two identified key factors present and operating at a relatively low level. The manner and circumstances of driving here is one of falling asleep while waiting for the lights to change at a traffic junction and causing obstruction to other road users. The vehicle remained stationary in the middle of the 3-lane road, thereby posing potential danger to other road users (of which the August 2023 offence provided a clear instance of how that potential danger was real in that an accident occurred when another vehicle crashed into his stationary car when he fell asleep while driving on the expressway). Within the range of one to six months of imprisonment, the offence committed was assessed at the lower end of two months of imprisonment based on the aforesaid manner of driving and circumstances. This June 2023 offence was committed more than 10 years after his previous conviction of drink-driving in January 2009, there is no need for a sentence higher than two months for this offence.

29     On the other hand, for the August 2023 offence, it fell within the “more serious” category with the starting range of 6-12 months’ imprisonment. This offence had two key aggravating factors. The first is that there was an accident and actual (rather than potential) harm was caused to property and persons. The second aggravating factor at a pronounced level was the fact that this August 2023 offence was committed so soon after the June 2023 offence. Therefore, the sentence to be imposed was assessed at the higher end of the range, nearer to the 12-month mark. After granting the discount for the guilty plea, a sentence of 7 months of imprisonment was passed.

30     Moving on, it is obvious that offences which were committed on separate occasions should have their terms of imprisonment run consecutively. The first offence was committed end June and the second offence occurred in early August of 2023. These two repeat offences of drink-driving occurred within a short span of time and a sufficiently punitive length of incarceration was warranted to reflect their severity. Specific Deterrence looms large as a sentencing principle in this case. The use of the full spectrum of the range of punishment also featured in this case.

Conclusion

31     The present case involved the commission of a second and a third drink-driving offence after the first conviction in 2009 but not resulting in a third conviction. This is because the third offence was committed before the Accused was charged or prosecuted for the second offence due to the fact that the third offence was committed shortly after the arrest of the Accused for the commission of the second offence.

32     The sentence meted out in this case seeks to fulfil the several social objectives of punishment for the Accused, protection of other road users and deterrence – both general and specific. Even though the first conviction of drink-driving occurred 14 years ago, the commission of the two latest back-to-back repeat offending brings to the fore the need to ensure the current overall sentence is effective to curb the irresponsible behaviour of the Accused. It seemed that the Accused had very little regard for the safe use of our roads and did not and had not learnt his lesson from his first drink-driving conviction in 2009. Despite being caught for repeating the offence in late June 2023, he went on to commit another drink-driving offence less than two months later in early August 2023, in almost similar fashion.

"},{"tags":["Criminal Law – Offences – Property – Criminal trespass","Criminal Law – Offences – Sexual offences – Voyeurism","Criminal Procedure and Sentencing – Sentencing – Persistent offenders"],"date":"2024-09-12","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 903952 of 2004 and 1 Other","title":"Public Prosecutor v Ong Wei Le","citation":"[2024] SGMC 37","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32134-SSP.xml","counsel":["Jocelyn Teo (Attorney-General's Chambers) for the Public Prosecutor","Accused self-represented."],"timestamp":"2024-09-17T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ong Wei Le

Public Prosecutor v Ong Wei Le
[2024] SGMC 37

Case Number:Magistrate Arrest Case No 903952 of 2004 and 1 Other
Decision Date:12 September 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Jocelyn Teo (Attorney-General's Chambers) for the Public Prosecutor; Accused self-represented.
Parties: Public Prosecutor — Ong Wei Le

Criminal Law – Offences – Property – Criminal trespass

Criminal Law – Offences – Sexual offences – Voyeurism

Criminal Procedure and Sentencing – Sentencing – Persistent offenders

12 September 2024

District Judge Paul Quan:

Introduction

1       On 27 May 2024, the self-represented accused, Ong Wei Le (“Mr Ong”), a 27-year-old Singaporean, went to Tampines North Polyclinic. He did not have a medical appointment but had wanted to see the clinic. He ended up scouting the female toilet at the first level of the polyclinic and going back out to loiter at the lobby until he saw a polyclinic staff member, a 28-year-old female in a maternity uniform (“the victim”), walking into the female toilet. Mr Ong followed suit and subsequently peeped at her using the toilet. During this time, he was under a remission order for a previous set of property-related offences.

2       Mr Ong has pleaded guilty to two charges, one of voyeurism and the other of criminal trespass under section 377BB(1) and section 441 of the Penal Code 1871 (2020 Rev Ed) (“PC”) respectively. For voyeurism, he can be punished with imprisonment that may extend to two years, a fine, caning, or any combination of such punishments under section 377BB(7) of the PC. It is a term of imprisonment that may extend to three months, and/or with fine that may extend to S$1,500 for criminal trespass under section 447 of the PC.

3       Upon being convicted and sentenced to imprisonment that would breach his remission order, section 50T(2)(a) of the Prisons Act 1933 (2020 Rev Ed) (“PA”) allows the court to impose an enhanced sentence under section 50T(1)(a) of the PA on each charge in addition to the sentence to be imposed on them. The cumulative enhanced sentence must not exceed 41 days, the remaining duration on the remission order that was in effect from 11 May 2024 to 6 July 2024: section 50T(2)(b) of the PA.

4       Mr Ong has similar criminal antecedents for sexual and property-related offences. The prosecution has sought a global sentence of ten to 12 months’ imprisonment for voyeurism and criminal trespass, with a cumulative enhanced sentence of 40 days’ imprisonment for breaching his remission order:

(a)     applying the sentencing framework laid down for offences under section 377BB(4) of the PC in Tan Siew Chye Nicholas v PP [2023] 4 SLR 1223 (“Nicholas Tan”) to the present case and based on its low harm-moderate culpability assessment, coupled with an overall upward adjustment for offender-specific factors, the prosecution has sought a sentence of ten to 12 months’ imprisonment for Mr Ong’s voyeurism offence;

(b)     a three to four weeks’ imprisonment term was sought for his criminal trespass based upon the nature and circumstances of the trespass, Mr Ong’s similar antecedents, and his early indication of guilty plea;

(c)     the sentences on both charges should run concurrently as they occurred within “a close temporal proximity” to each other; and

(d)     applying the framework laid down in Abdul Mutalib bin Aziman v PP [2021] 4 SLR 1220, the breach of the remission order by the commission of –

(i)       voyeurism is pegged at a “moderate-high severity” that should attract an enhanced sentence of 27 days, or about two-thirds of the remaining duration of 41 days on the remission order, and

(ii)       criminal trespass is pegged at a “low-moderate” severity that should attract an enhanced sentence of 13 days, or about one-third of the remaining duration of 41 days on the remission order; and

(e)     the global sentence on the two charges, with the cumulative enhanced sentence under section 50T(2) of the PA would not offend the totality principle.

5       Mr Ong has pleaded for the court’s leniency and a lighter sentence. During mitigation, he has expressed remorse and assured me that he would mend his ways.

6       I sentence Mr Ong to an aggregate term of ten months’ imprisonment, with a cumulative enhanced sentence of 41 days’ imprisonment under section 50T(2) of the PA. I set out the reasons for my decision.

Issues to be decided

7       The three main issues I have to decide in this case are:

(a)     first, whether the Nicholas Tan sentencing framework for offences under section 377BB(4) of the PC applies in this case, and if so, the extent to which it does and its actual application in respect of voyeurism under section 377BB(1) of the PC;

(b)     second, the sentencing considerations in terms of the nature of the offence and the offender in respect of Mr Ong’s criminal trespass offence; and

(c)     third, the severity of the breaches of Mr Ong’s remission order by the voyeurism and criminal trespass that he had committed whilst under the order.

8       I resolve the issues in this way:

(a)     I decide that the Nicholas Tan framework applies in this case and arrive at an indicative starting point of seven months’ imprisonment based upon a low harm-moderate culpability assessment. According the aggravating and mitigatory weight to the relevant factors personal to Mr Ong that are present in this case lands on the side of an overall upward adjustment to arrive at the final sentence of ten months’ imprisonment;

(b)     In deciding to impose a sentence of three weeks’ imprisonment for criminal trespass, I took into account the moderate severity of the voyeurism offence that Mr Ong intended to commit by criminally trespassing the female toilet, his similar antecedents, and his early indication of guilty plea; and

(c)     Given the low gravity of his criminal trespass and moderately grave nature of his voyeurism coupled with his less than promising rehabilitative prospects, the breaches of Mr Ong’s remission order by both offences are moderately severe attracting enhanced punishments of between one-third and two-thirds of the remaining duration of 41 days on the remission order.

Analysis of issues

9       I analyse the issues in turn.

Issue 1: Nicholas Tan framework should apply to voyeurism under section 377BB(1) PC

10     I agree with the prosecution that the Nicholas Tan framework can apply to an offence under section 377BB(1) of the PC. This is based on the (caveated) dictum of the High Court that it saw no reason why the same sentencing framework it has laid down for section 377BB(4) offences should not apply to the other section 377BB offences if they are also punishable under section 377BB(7) of the PC: Nicholas Tan at [62]. That is the case here.

11     Applying that framework, the offence-specific factors point towards situating the present case within the low harm-moderate culpability spectrum with an indicative starting point of four to eight months’ imprisonment on a claim-trial, first-offender basis. I assess the indicative starting sentence to be at the higher end of this spectrum at seven months’ imprisonment. The upshot of balancing the offender-specific aggravating and mitigating factors is an overall upward adjustment to arrive at the final sentence of ten months’ imprisonment.

Offence-specific factors: low harm-moderate culpability

12     Considering the harm caused by the offence and his culpability in the round, I assess the indicative starting point to be at the higher end of the low harm-moderate culpability spectrum of the Nicholas Tan matrix at seven months’ imprisonment.

(1)   Low harm caused: brief period of observing victim on toilet bowl; victim was aware of and shocked at observation and wanted Mr Ong held accountable

13     The harm that Mr Ong caused was low, based on the period of the offending observation and what was observed, as well as the victim’s knowledge of the offending observation and the impact this had on her. But it is pegged at the higher end of the low harm spectrum given that the distress, to which Mr Ong had subjected the victim, would have been amplified because she was pregnant.

14     Mr Ong observed the victim very briefly seated on the toilet bowl and while the victim was shocked by Mr Ong’s actions, she was immediately aware that Mr Ong was peeping at her when she saw Mr Ong’s hair and forehead at the bottom of the cubicle. She quickly nipped the invasion of her privacy in the bud by stomping her foot to scare him away. She wanted the police to take action against Mr Ong to hold him accountable for his actions.

(2)   Moderate culpability: evidence of planning and premeditation, subject knowledge that observation was without consent; and efforts to evade apprehension

15     Mr Ong’s culpability is pegged at the higher end of the moderate culpability spectrum, based on the degree of planning and premeditation involved, his subjective knowledge that the observation was without consent, and his efforts to evade apprehension.

16     Mr Ong had no reason to be at the polyclinic and while he was there, he scouted the female toilet. He then loitered at the lobby and waited opportunistically for a victim and when one came along, he followed her into the toilet. While the victim was sitting on the toilet bowl, Mr Ong intentionally peeped under her cubicle. He knew he was observing the victim doing a private act without her consent. His instinctive response to flee the scene when the victim stomped her foot was telling; he knew he was doing something wrong and did not wish to get caught for his dastardly act. But the victim reported the matter to the polyclinic and they reviewed surveillance footage that caught Mr Ong entering the female toilet with the victim.

Offender-specific aggravating and mitigating factors: similar antecedents, lack of remorse and early indication of guilty plea

17     To the extent that he is traced for a previous offence of voyeurism and a worrying slew of sexual offences, Mr Ong’s similar criminal antecedents are aggravating. He was sentenced:

(a)     in 2015 to reformative training for outraging the modesty of a person under 14 under section 354(2) of the Penal Code (Cap 224 2008 Rev Ed) (“PC 2008”).

(b)     in June 2020 to nine weeks’ imprisonment on two counts of sexual exposure under section 377BF(3) of the PC 2008;

(c)     in October 2020 to a total of 20 weeks’ imprisonment on two counts under section 377BF(4) of the PC 2008 against a person under 14, with another attempted count taken into consideration for the purpose of sentence (“TIC”);

(d)     in June 2021 to eight weeks’ imprisonment on one count under section 377BF(3) of the PC 2008;

(e)     in March 2022, to 17 weeks’ imprisonment on one count under section 377BF(4) of the PC; and

(f)     in July 2022 to 24 weeks’ imprisonment on one count under section 377BF(2) of the PC.

In particular, Mr Ong was last convicted of attempted voyeurism only in December 2022 under section 377BB(1) of the PC and was sentenced to eight months’ imprisonment, concurrently with a six-month imprisonment term for another count of insulting the modesty of a person under section 377BA of the PC.

18     Mr Ong also showed a lack of remorse after committing the present voyeurism offence because he had continued to loiter in the vicinity. A polyclinic staff, who recognised him, spotted him at the bus-stop opposite the polyclinic more than two hours after he committed the voyeurism offence.

19     I therefore decide that an upward adjustment of another seven months’ imprisonment to the starting point sentence of seven months’ imprisonment should be made. For his early indication of guilty plea, I accord him the full 30% reduction in sentence as recommended by the guidelines of the Sentencing Advisory Panel in this regard, but only because in doing so, he has spared the victim of having to testify against him in a trial.

20     The final adjusted sentence for Mr Ong’s voyeurism offence is therefore ten months’ imprisonment.

Issue 2: Nature of criminal trespass offence and nature of Mr Ong as offender

21     Mr Ong entered the toilet with the intention of committing an offence against the victim. Whether the custodial threshold is crossed for such criminal trespass depends on the gravity of the offence intended to be committed. A three-week imprisonment term adequately reflects the nature of the offence and the offender.

Nature of voyeurism offence

22     The offence of voyeurism, which Mr Ong intended to commit with the criminal trespass, is moderately grave: see [29], below. This is in contrast with committing criminal trespass for the purpose of intimidating, insulting or annoying the victim. This was not a case of unlawfully remaining on property; Mr Ong’s entry into the female toilet was unlawful to begin with. He violated the sanctity of a private space, where female users should be able to feel safe and secure, though the violation was only for a brief period.

Nature of offender

23     Mr Ong has a similar antecedent for criminal trespass in respect of a previous TIC charge that he had admitted to as recently as March 2022, as well as a slew of other property-related antecedents:

(a)     Mr Ong was sentenced in June 2021 to two weeks’ imprisonment on one count of theft-in-dwelling under section 380 of the PC 2008, concurrently with two days’ imprisonment on one other count of theft under section 379 of the PC 2008, as well as another count and an attempted count that were TIC.

(b)     he was sentenced in September 2021 to a total of six weeks’ 18 days’ imprisonment on two counts of theft-in-dwelling under section 380 of the PC 2008, with another count of theft under section 379 of the PC 2008 that was TIC;

(c)     he was sentenced in November 2021, to six weeks’ imprisonment on two counts of theft-in-dwelling under section 380 of the PC 2008, with two other counts that were TIC;

(d)     he was sentenced in October 2023 to three months’ and nine weeks’ imprisonment on one count of mischief by fire or explosive substance with intent to cause damage under section 435 of the PC, and another count of theft in dwelling under section 380 of the PC.

His latest conviction was in January 2024 for two counts of theft-in-dwelling under section 380 of the PC, for which he was sentenced to 24 weeks’ imprisonment.

24     The three-week imprisonment sentence factors in the full 30% reduction in sentence for his early indication of guilty plea to this charge.

Issue 3: Enhanced sentences should be imposed under section 50T(2) PA

25     Mr Ong was under a conditional remission order at the time of the offences, with a period of his sentence for his last conviction on two counts of theft-in-dwelling being suspended from 11 May 2024 to 6 July 2024. By committing the present offences and being convicted and sentenced to imprisonment for them, he has breached the basic condition of the order, and therefore liable for enhanced sentence of imprisonment for each offence: section 50T(2)(a) of the PA.

26     Each enhancement is not to exceed 41 days, which is the remaining duration on the remission order as determined based on the date when the offence was committed: section 50T(1)(a) of the PA. In this case, both offences were committed on the same date, ie 27 May 2024. The cumulative enhanced sentence is also not to exceed the remaining duration on the remission order as determined based on the date of the earliest offence committed: section 50T(2)(b) of the PA. In this case, that date is also 27 May 2024, and the cumulative enhanced sentence is therefore also not to exceed 41 days.

Gravity of breach of remission order

27     On a consideration of the factors in section 50T(3) of the PA and on an application of the Abdul Matalib framework, the sentences imposed for both voyeurism and criminal trespass, which are not de minimis offences, should be enhanced: Abdul Matalib at [51]. The extent of such enhancements will depend on the gravity of the breach of Mr Ong’s remission order. This turns on the gravity of the fresh offences committed and his rehabilitative prospects.

(1)   Breach by voyeurism resides at upper end of Band 2 of Abdul Mutalib framework

28     Given the dissimilar but nevertheless moderately grave nature of the fresh voyeurism offence, as well as the lack of rehabilitative prospects for Mr Ong, I agree with the prosecution that the breach of the remission order in relation to that fresh offence resides at the upper end of Band 2 of the sentencing range set out in Abdul Mutalib at [47]. This entails an enhanced sentence of about two-thirds of the remaining duration of 41 days on the remission order, or 27 days.

(A)   Voyeurism is moderately grave

29     To the extent that it is a sexual offence that may be punishable additionally with caning, apart from imprisonment and fine, the gravity of the fresh voyeurism is moderate, although the upper limit of its imprisonment term may be lesser than that for theft-in-dwelling.

(B)   Low rehabilitative prospects: voyeurism is dissimilar but grave and committed two weeks after release

30     Voyeurism may be dissimilar to theft-in-dwelling, but it is nevertheless grave. The window between Mr Ong’s release and the commission of the fresh voyeurism offence is also small. Mr Ong committed the voyeurism offence on 27 May 2024, barely two weeks after release on his remission order on 11 May 2024. His prospect of rehabilitation now is therefore less than promising.

(C)   Low rehabilitative prospects: consistent pattern of offending shows lack of commitment to rehabilitation and reintegration

31     Mr Ong has a string of sexual and property-related antecedents, which date all the way back to 2015 when he was still 17. It reveals a consistent pattern of offending. For instance, he committed no less than eight offences of sexual exposure within a period of slightly more than two years from June 2000 to July 2022. Over a mere span of about two and half years from June 2021 to January 2024, he chalked up 14 theft offences. There were also previous multiple breaches of remission orders. This pattern of offending suggests that he has not been able to rehabilitate himself yet.

Breach by criminal trespass resides at low end of Band 2 of Abdul Mutalib framework

32     Given the similar but low gravity of the fresh criminal trespass offence, and the lack of rehabilitative prospects already discussed at [31], above, I agree with the prosecution that the breach of the remission order in respect of that fresh offence resides at the low end of Band 2 of the Abdul Mutalib framework. This entails an enhanced sentence of about a-third of the remaining 41 days on the remission order, or 14 days.

(A)   Criminal trespass is of low gravity

33     Given that criminal trespass is only punishable with imprisonment that may extend to three months and/or with fine that may extend to S$1,500, it is of low gravity compared to theft-in-dwelling.

(B)   Low rehabilitative prospects: criminal trespass similar property-related offence committed two weeks after release, consistent pattern of committing property-related offences, and string of other antecedents

34     To the extent that it is a property-related offence, the fresh criminal trespass offence is similar to theft-in-dwelling. Committing a similar property-related offence soon after being released on a remission order, as well as his consistent pattern of committing property-related offences and his string of other antecedents already discussed at [31] above do not speak to optimistic rehabilitative prospects. The entire duration of the remission order is less than two months, and he could not even stay crime-free for this relatively short period.

Conclusion

35     I sentence Mr Ong to a total of ten months’ imprisonment with an enhanced 41 days’ imprisonment:

(a)     I impose a sentence of ten months’ imprisonment for the voyeurism offence and three weeks’ imprisonment for the criminal trespass offence. I order both sentences to run concurrently; and

(b)     I enhance the sentence for the voyeurism offence by 27 days and the sentence for the criminal trespass offence by 14 days for the breach of a conditional remission order under section 50T(2)(a) of the PA. Both sentences run consecutively by virtue of the operation of section 50T(5) of the PA.

Sentences for voyeurism and criminal trespass to run concurrently

36     The criminal trespass was part of the same transaction as the voyeurism with one preceding immediately after the other, or in the words of the prosecution, both occurred in “close temporal proximity” to each other. I therefore order both sentences to run concurrently.

Enhanced sentences under section 50T(2) PA to run consecutively

37     The enhanced sentences under section 50T(2) of the PA must run consecutively even though I order the base imprisonment terms for both offences to run concurrently: section 50T(5) of the PA. The cumulative enhanced sentence is the entire remaining duration of 41 days on the remission order. In other words, the whole remission period granted to Mr Ong is rescinded.

Global sentence of ten months’ imprisonment with enhanced 41 days’ imprisonment not crushing

38     The global sentence of ten months’ imprisonment with an enhanced 41 days’ imprisonment does not offend the totality principle. It is not crushing on Mr Ong and wholly in keeping with his past record, especially given his similar criminal antecedents, and less than promising prospects of rehabilitation and reintegration in the light of his consistent pattern of offending.

39     I also backdate the sentence to 27 May 2024 when he was first arrested. He has been in remand since 27 May 2024.

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Public Prosecutor v Sree Kanth s/o Murugan
[2024] SGDC 231

Case Number:DAC 903245/2024 and another, Magistrate's Appeal 9154/2024/01
Decision Date:11 September 2024
Tribunal/Court:District Court
Coram: Carol Ling
Counsel Name(s): Sivakumar Ramasamy and Ho May Kim (Attorney-General's Chambers) for the Prosecution; Asoka Markandu (Anitha & Asoka LLC) for the Accused
Parties: Public Prosecutor — Sree Kanth s/o Murugan

Criminal Procedure and Sentencing – Offence under Section 376(2)(b) Penal Code 1871 punishable under Section 376(3) Penal Code 1871 – Young Offender – Reformative Training

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9154/2024/01.]

11 September 2024

District Judge Carol Ling:

Introduction

1       The Accused pleaded guilty to the charge below. He was 20 years of age at the time of his conviction.

DAC 903245/2024

You, are charged that you, on 28 October 2023, sometime at or around 2.10 a.m., at the void deck of Block 195 Kim Keat Avenue, Singapore, did cause one [victim], then 34 years of age [date of birth], to penetrate, with his penis, your mouth, without his consent, and you have thereby committed an offence under Section 376(2)(b) punishable under Section 376(3) of the Penal Code 1871.

2       One charge under section 354(1) of the Penal Code 1871, for touching the victim’s penis over his pants with his [the Accused’s] hand[note: 1] was taken into consideration (TIC) for the purpose of sentencing.

3       At the time of the commission of the offence and the recording of his plea of guilt, the Accused was 20 years old (Date of Birth: 17 April 2003). He was charged in court on 19 February 2024 and at the second mention of this case, he swiftly pleaded guilty. Both the pre-sentence Probation as well as Reformative Training (RT) reports were called for. The Accused was found suitable for both probation and reformative training.

4       I sentenced the Accused to a term of reformative training with level one intensity of rehabilitation, as recommended in the report. This was a minimum of six months detention in a Reformative Training Centre (RTC).

5       This is the Accused’s appeal against the sentence.

Facts of the Case[note: 2]

6       The victim is an Indian National who was working in Singapore as a maintenance worker at the material time.

7       On 27 October 2023 at around 10.30 pm, the victim chatted and shared 3 cans of beer with his relative at the void deck of Block 195 Kim Keat Avenue, Singapore. They talked until about 1.30 am on 28 October 2023. Thereafter, the victim’s relative returned to his flat in that same block to freshen up as he was preparing to take a flight that same morning at about 5.00 am. The victim waited for his relative at the void deck as his relative would be dropping the victim off at the victim’s dormitory along the way to the airport. While waiting for his relative, the victim fell asleep on a concrete slab at the void deck.

8       Sometime around 2.10 am, the Accused (who was returning home from supper) sat at a table in the void deck and was using his mobile phone. The Accused noticed the victim lying down around 5m away from where he was seated. The Accused also smelt alcohol on the victim.

9       The Accused proceeded to walk up and down for about three to five minutes near where the victim was sleeping, contemplating whether to engage the victim. Thereafter, the Accused approached the victim and used his right hand to touch the victim’s penis over the victim’s pants for about 1 minute (subject matter of the TIC charge). The Accused then put his right hand inside the victim’s pants and took out the victim’s penis. The Accused then put the victim’s penis into his mouth for about 5 seconds without the victim’s consent.

10     At this juncture, the victim woke up as he felt a wet sensation at his penis area. The victim saw the Accused sitting at his feet area bending his body towards the victim. The victim also saw that his penis was exposed. The victim was shocked and got up. The Accused ran off and the victim gave chase. Ultimately, the Accused managed to escape back to his home which was nearby. He was subsequently arrested later that same morning by the police.

The Approach to Sentencing Young Offenders

11     The Accused was under 21 years old at the time of the offences and when he pleaded guilty to the charge.

12     Where young offenders are concerned, the approach to sentencing is well-established. It involves a two-step approach as set out in Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”). From [77] of Al- Ansari:

“First, the court must ask itself whether rehabilitation can remain a predominant consideration. If the offence was particularly heinous or the offender has a long history of offending, then reform and rehabilitation may not even be possible or relevant, notwithstanding the youth of the offender. In this case, the statutorily prescribed punishment (in most cases a term of imprisonment) will be appropriate.

However, if the principle of rehabilitation is considered to be relevant as a dominant consideration, the next question is how to give effect to this….”

13     The Al-Ansari framework was elaborated upon in Public Prosecutor v Koh Wen Jie Boaz [2016] 1 SLR 334 and affirmed by the Court of Appeal in Public Prosecutor v ASR [2019] SLR 941. The Court of Appeal in See Li Quan Mendel v Public Prosecutor [2020] SGCA 61 at [15] emphasized:

“We reiterate the point that where young offenders are concerned, the sentencing framework remains the two-step approach set out in Al-Ansari ([7] supra) and Boaz Koh as affirmed and explained in ASR. The inquiry proceeds from the foremost question of whether rehabilitation remains the dominant sentencing principle, before considering whether probation or reformative training or some other type or combination of community-based sentences would be the correct way to achieve this. At the first stage, the court should not be asking whether the offender showed enough rehabilitative potential for probation, as opposed to reformative training. Rather, at that stage of the inquiry, the question is whether in all the circumstances, the presumptive emphasis on rehabilitation has been displaced. If it has, then rehabilitative options such as probation or reformative training would typically not be available; and if it has not been displaced, then such options may be considered.”

14     In summary, the two-step approach when dealing with youthful offenders is:

a)      Step One: The court must first ask itself the question whether rehabilitation remained the dominant sentencing consideration, or had the emphasis on rehabilitation been displaced;

b)      Step Two: If rehabilitation remained the dominant sentencing consideration, the court is to consider if probation, reformative training or some other type or combination of community-based sentences would achieve it.

Rehabilitation was the Dominant Sentencing Consideration

15     It was clear from both the Prosecution and Defence’s submissions that rehabilitation was the dominant sentencing consideration in this case.[note: 3] I was of a similar view. The overall facts and circumstances of the case did not displace the emphasis on rehabilitation as the dominant consideration in sentencing.

16     Since rehabilitation remained the dominant sentencing consideration, both probation and reformative training were viable sentencing options for the Court. As stated in the case of Koh Wen Jie Boaz at [36] (reiterated in the case of Public Prosecutor v Ong Jack Hong [2016] SGHC 182):

“While it is clear that probation is conducive to rehabilitation, I emphasise that it is not the only sentencing option for a youthful offender where rehabilitation remains the dominant sentencing consideration. Reformative training too is geared towards the rehabilitation of the offender (PP v Al-Ansari at [47]).”

17     On that basis, I called for both probation and RT suitability reports, despite the Prosecution’s objections to the former. The Accused was assessed suitable for a term of probation. He was also assessed suitable to undergo reformative training.

Parties’ Position on Sentence

18     Upon receipt of both reports, Prosecution maintained their position in seeking a term of reformative training for the Accused, citing deterrence as an applicable sentencing principle given the aggravated facts of the case.[note: 4] Moreover, the retrospective and prospective rationales for offenders to be sentenced on the basis of rehabilitation held “relatively less weight” since the Accused was on the cusp of adulthood when he committed the offence and already 21 years old at the time of the sentence.[note: 5] Probation lacked sufficient deterrence and a term of reformative training would strike the appropriate balance.[note: 6]

19     Defence Counsel, on the other hand, argued that reformative training would not address the Accused’s risk factors and that probation offered the “better rehabilitative outcome” for the Accused. Amongst other things, Defence Counsel emphasized Accused’s sexuality and highlighted that the programme in probation specifically addressed the Accused’s “core risk factors” - something that a stint in the reformative training centre may not do. [note: 7] Defence Counsel submitted that the Accused was remorseful, had accepted responsibility and had taken positive steps to address his sexuality[note: 8]. Deterrence was not a key factor since the Accused had “already made plans to not re-offend and it was observed that he was equipped with strong familial support.”[note: 9]

A Term of Reformative Training is the Appropriate Sentence

20     In cases where the youthful offender is found suitable for both probation and reformative training, the challenge for the court is to determine which rehabilitative regime would be more appropriate.

21     It was well-put in Al-Ansari at [66]-[67] where the court stated:

“In all cases, therefore, the key is always to find the most appropriate sentencing option to give effect to the dominant principle of rehabilitation, which is also balanced against the need for deterrence that might arise for particular offences. In cases involving young offenders, the sentencing options that give dominant consideration to the principle of rehabilitation invariably boil down to either probation orders or reformation training. The presence of more than one sentencing option which equally advances the rehabilitative principle must mean that the courts’ hands are not tied when it comes to giving effect to this principle. Any other view cannot be right, and the courts would be remiss in the discharge of their judicial duties by abdicating their function to determine the appropriate sentence in consideration of the unique facts of each case.

In determining the balance to be struck between the dominant consideration of rehabilitation and the need for deterrence, the courts must of course pay utmost attention to the unique facts and circumstances of each case. Without intending the following to be cast in stone like compulsory statutory factors, I would venture to suggest that some relevant factors include: (a) the seriousness of the offence; (b) the culpability of the offender; (c) the existence of antecedents; (d) the nature of the rehabilitation best suited for the offender; (e) the availability of familial support in the rehabilitative efforts; and (f) any other special reasons or need for rehabilitation. These factors would determine the appropriate sentence in each case.” (emphasis mine)

22     The court had to have regard to the unique facts and circumstances of each case in determining whether a term of probation or a term of reformative training would be the appropriate sentence.

Probation not Given as of Right

23     First, it ought to be remembered that young offenders are not entitled to probation. The fact that the Accused was assessed suitable for probation did not mean that he should be placed on probation. Probation is never granted as of right. As stated in the case of Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin [1999] SGHC 275:

“…. the above-italicised portions of s 5(1) of the Act make it clear that probation is never granted as of right, even in the case of juvenile offenders. In deciding whether or not probation is the appropriate sentence in each case, the court still has to take into account all the circumstances of the case, including the nature of the offence and the character of the offender.”

24     On a careful consideration of the facts and circumstances in this case, I was of the view that a term of reformative training was the appropriate sentence, even for the Accused who was a first offender and had pleaded guilty at the earliest opportunity.

Gravity of the Offence

25     The gravity of the offence, whilst it may not be the only consideration, is an extremely weighty and important one.

26     The offence which the Accused had committed was very serious. The punishment prescribed for his offence under section 376(2)(b) of the Penal Code was imprisonment up to 20 years, and also carried with it discretionary fine or caning. In the case of Pram Nair v Public Prosecutor [2017] 2 SLR 1015 which set the sentencing framework for offences punishable under section 376(3) Penal Code, the range of sentences in the starting band (Band One) is seven to 10 years’ imprisonment and four strokes of the cane for an offender who claims trial. The gravity of the offence was reflected in the punishment prescribed and the guideline sentences. [note: 10]

27     The nature and gravity of the offence committed by the Accused signalled a need for a strong measure of deterrence within the overarching focus and emphasis on rehabilitation.[note: 11]

Culpability of the Accused

28     What the Accused did was a gross violation of another individual’s sexuality, personal rights and privacy. Apart from that, he had chosen to do so in public, at a void deck below a Housing Development Board (HDB) block. Such was the brazen nature of the Accused’s act.[note: 12]

29     The Accused made a conscious and deliberate decision to take advantage of a sleeping victim, a complete stranger. He had noticed the victim sleeping on a concrete slab at the void deck and smelt alcohol on him. The Accused then walked up and down for about three to five minutes, contemplating whether to engage the victim. Subsequently, the Accused made his move by first touching the victim’s penis over his pants[note: 13] and then eventually sexually assaulting the victim by putting the victim’s penis into his mouth for about five seconds. It was only when the victim felt a wet sensation at his penis that he was awoken. There was a high level of violation of the victim’s person.

30     The Accused’s personal struggles with his sexual identity did not mitigate his actions. In the course of his submissions, Defence Counsel focused much on the Accused’s sexuality and his sexual preferences; how he “did not know where to draw the boundaries”.[note: 14] The Psychological Report dated 29 May 2024 (“Psychological Report”) did also state that the Accused’s offence “appeared triggered by a combination of sexual coping, offence-supportive thoughts and the inability to cope with acute stressors he was facing at that time”[note: 15]. For an offender of the Accused’s age, I was prepared to accept that at the material time, the Accused may have been struggling with his own sexuality, coping with it and dealing with related issues. However, even giving the Accused the full benefit, those reasons could not excuse his offending behaviour, give him a licence to do what he did, or lessen the gravity of the offence.

31     I agreed with the Prosecution that the Accused could not be said to have acted out of “youthful folly or inexperience” in this case. Rather, he “has had experience with several sexual relationships and is well-aware of the issues surrounding consent.”[note: 16] The Psychological Report reported that the Accused had a former male partner[note: 17]; he had been exposed to sexual acts as a minor and had also engaged in casual sexual interactions with male acquaintances he met online.[note: 18] The Probation report had similar details.[note: 19] Sexual experience aside, the Accused was also almost 21 years old when he committed this offence. As the court in Public Prosecutor v Quek Xiu Zhi Winfred [2015] SGDC 251observed at [22]:

“……the closer an adolescent is to adulthood, the more his status as a youthful offender lessens in significance and the more other factors such as the nature and severity of the offences and the need for deterrence could gain preponderance. The tapering off of the forbearance we extend to youthful offenders will generally come to an end by adulthood. By the time a person has attained adulthood, he should be regarded as having passed the threshold level of maturity such that, in most kinds of offences, the courts would not countenance the excuse that he “did not know better”.

32     Given the Accused’s age and sexual experience, this was not a case where latitude could be extended to the Accused because he “did not know better”.

Need for a Measure of Deterrence

33     I was firmly of the view that there was a need for a strong measure of deterrence in this case which a term of probation would not be able to provide. It is established that whilst probation orders do exert some form of deterrence, such deterrence, generally speaking, is “relatively modest in nature”.[note: 20]

34     Defence Counsel stressed that based on the RT report, it appeared that deterrence was not a key factor as the Accused had already made plans to no re-offend. He also had strong familial support.[note: 21] However, in so submitting, Defence Counsel had sidelined the issue of how inherently serious the offence was; that the offence in itself, called for a deterrent sentence. Even if the Court was willing to accept that the need for specific deterrence was reduced based on the Accused’s remorse and family support, general deterrence was also a highly relevant factor. As Prosecution had submitted, “a brazen sexual assault involving penetration, and in public, not resulting in any period of incarceration would send the wrong message to the public at large”,[note: 22] and I add, to all like-minded youthful offenders.

35     Further, the Accused’s risk of re-offending was assessed to be “moderate” based on both the Level of Service/Case Management Inventory (LS/CMI) as well as the Risk of Sexual Violence Protocol Version 2 (RSVP – V2).[note: 23] One of the risk factors highlighted by the Probation Officer was the Accused using sexually deviant means to cope with his sexual urges. That emphasized his lack of self-control, limited regard for others and poor ability to regulate his sexual urges. The Prosecution submitted that his risk of offending underscored the need for deterrence.[note: 24] I agreed with that.

Other Considerations

36     The case of Fahd Siddiqui v Public Prosecutor [2024] SGHC 66 (Fahd Siddiqui) relied on by Defence Counsel did not aid the Accused’s bid for probation. Defence Counsel highlighted offender-specific factors in Fahd Siddiqui (seemingly also present in the Accused’s case) which favoured probation.[note: 25] However, the case of Fahd Siddiqui did not stand for the proposition that when such factors are present, probation would be the appropriate sentence. On the contrary, the court in Fahd Siddiqui stated at [15]:

“Notwithstanding the favourable probation report, the need for deterrence and retribution in the present case means that probation is not appropriate here. Although the probation report is an important part of assessing whether an offender is suitable for probation, it does not and cannot advise the Court on whether general deterrence and retribution should feature in the particular case before the Court. That is a matter for the sentencing Court to determine after considering all aspects of the case.”

37     The court in Fahd Siddiqui found that neither probation nor reformative training was the appropriate sentence, and imposed a short detention order instead, adding that “it was not appropriate to sentence the appellant to RT just because probation was not the appropriate sentence”.[note: 26] In the present case, I was satisfied that reformative training was the appropriate sentence, given the facts and circumstances.

38     Both probation and reformative training were rehabilitative regimes which addressed the Accused’s rehabilitative needs. From that perspective, I did not think it was extremely helpful to scrutinise or dissect the programmes offered in the terms of probation and reformative training to decide which would be better placed to rehabilitate the Accused, and consequently, to arrive at the appropriate sentence. Defence Counsel looked at the probation programme and sought to persuade the court that probation “is more likely to achieve his desired rehabilitative outcome and that more importantly it’s tailored to meet his risk factors”.[note: 27] Having perused the elaborately-prepared probation and RT reports, it was clear that professionals in the social service and the prison service had fully assessed the Accused, ascertained his needs and determined that they could help him. Both probation and reformative training had programmes which would assist in the Accused’s rehabilitation, the main difference being whether such rehabilitation should take place in the community or in a structured, regimented environment. In any case, in a response dated 17 May 2024 to Prosecution’s query, Singapore Prisons Service confirmed that there were psychological interventions for sex offenders; psychiatric services were also available.[note: 28]

Conclusion

39     Given the overall facts and circumstances of this case, when placed side by side, a term of reformative training was the appropriate sentence as it provided the better balance between the need for rehabilitation and deterrence. I was satisfied that the recommended term of a level one intensity of rehabilitation which carried with it a minimum of a six-month detention in the RTC was not a disproportionate sentence.

40     The Accused is currently on bail pending appeal.

[note: 1]MAC 901218/2024

[note: 2]Statement of Facts

[note: 3]Notes of Evidence, 18 March 2024, 2/7-3/19; 3/30-5/31; Mitigation Plea, [8], [12]-[17]

[note: 4]Prosecution’s Address on Sentence, [7]; Notes of Evidence, 18 July 2024, 4/20-5/6

[note: 5]Prosecution’s Address on Sentence, [8]; Notes of Evidence, 18 July 2024, 3/23-4/13

[note: 6]Prosecution’s Address on Sentence, [10]; Notes of Evidence, 18 July 2024, 5/30-6/32

[note: 7]Defence’s Reply to the Prosecution’s Address on Sentence, [22]-[25]; Notes of Evidence, 18 July 2024, 17/27-18/12; 20/27-21/5

[note: 8]Defence’s Reply to the Prosecution’s Address on Sentence, [17]-[18]

[note: 9]Defence’s Reply to the Prosecution’s Address on Sentence, [19]; 17/11-26

[note: 10]Prosecution’s Address on Sentence, [7(c)]

[note: 11]Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166,[14]; Prosecution’s Address on Sentence, [10(a)]

[note: 12]Prosecution’s Address on Sentence, [7(a)]

[note: 13]MAC 901218/2024 – TIC charge

[note: 14]Mitigation Plea, [15], [25]; Notes of Evidence 18 March 2024 4/20-24, 8/13-20; 18 July 2024, 18/12-22; Defence’s Reply to Prosecution’s Address on Sentence, [27]

[note: 15]MSF Psychological Report dated 29 May 2024, [46]

[note: 16]Prosecution’s Address on Sentence, [8a]

[note: 17]Psychological Report, [16]

[note: 18]Psychological Report, [30]-[34]

[note: 19]Probation Report, pages 15-16

[note: 20]Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449, [56]

[note: 21]Defence’s Reply to Prosecution’s Address on Sentence, [19]

[note: 22]Prosecution’s Address on Sentence, [10(d)]

[note: 23]Probation Report, [2], [19]; Psychological Report, [4], [46]

[note: 24]Prosecution’s Address on Sentence, [10(e)]

[note: 25]Notes of Evidence, 18 March 2024, 6/20-8/20; 18 July 2024, 23/23-24/3

[note: 26]Fahd Siddiqui v Public Prosecutor [2024] SGHC 66, [17]-[18]

[note: 27]Defence’s Reply to Prosecution’s Address on Sentence, [24]; Notes of Evidence 18 July 2024, 20/27-31

[note: 28]Letter from the Singapore Prison Service dated 17 May 2024 in response to Prosecution’s query dated 26 April 2024.

"},{"tags":["Criminal Law – Statutory offences – Gambling Control Act – Unlawful conduct of betting operations","Criminal Law – Statutory offences – Gambling Control Act – Acting as bookmaker","Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending","Criminal Law – Statutory offences – Remote Gambling Act 2014 – Unlawful remote gambling","Criminal Procedure and Sentencing – Sentencing – Benchmark sentences"],"date":"2024-09-10","court":"District Court","case-number":"District Arrest Case No 908642 of 2023 and 3 Others","title":"Public Prosecutor v Ong Guat Eng","citation":"[2024] SGDC 226","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32112-SSP.xml","counsel":["Tay Zhi Jie (Attorney-General's Chambers) for the Public Prosecutor","Jared Lee (Regent Law LLC) for the Accused."],"timestamp":"2024-09-16T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ong Guat Eng

Public Prosecutor v Ong Guat Eng
[2024] SGDC 226

Case Number:District Arrest Case No 908642 of 2023 and 3 Others
Decision Date:10 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Tay Zhi Jie (Attorney-General's Chambers) for the Public Prosecutor; Jared Lee (Regent Law LLC) for the Accused.
Parties: Public Prosecutor — Ong Guat Eng

Criminal Law – Statutory offences – Gambling Control Act – Unlawful conduct of betting operations

Criminal Law – Statutory offences – Gambling Control Act – Acting as bookmaker

Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending

Criminal Law – Statutory offences – Remote Gambling Act 2014 – Unlawful remote gambling

Criminal Procedure and Sentencing – Sentencing – Benchmark sentences

10 September 2024

District Judge Paul Quan:

Introduction

1       The accused, Ong Guat Eng (“Mdm Ong”), a 62-year-old Singaporean, has pleaded guilty to two charges, one of unlawful conduct of betting operations under section 18(1) of the Gambling Control Act 2022 (Act No 15 of 2022) (“GCA”) and another of assisting in unlicensed moneylending under section 14(1) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“MLA”). She has also consented to have two other charges, one of acting as bookmaker under section 5(3) of the Betting Act (Cap 21, 2011 Rev Ed) and another of unlawful remote gambling under section 8(1)(b) of the Remote Gambling Act 2014 (Act No 34 of 2014) (“RGA”), taken into consideration for the purpose of sentence (“TIC”).

2       For the GCA offence, Mdm Ong must be punished with imprisonment not exceeding five years that can be coupled with a fine not exceeding S$200,000 under section 18(3)(a) of the GCA. She is subject to twice the maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the charge is framed as an amalgamated charge for separate transgressions amounting to a course of conduct under section 124(4) of the CPC.

3       As for the MLA offence, she must be punished with imprisonment not exceeding four years and a fine of not less than S$30,000 and not more than S$300,000 under section 14(1)(b)(i) of the MLA. This can be coupled with caning with not more than six strokes under section 14(1A) of the MLA and although Mdm Ong cannot be caned, an imprisonment term of not more than 12 months can be imposed in lieu of caning under section 325(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

4       The prosecution has sought to impose a global sentence of six months’ three weeks’ to ten months’ five weeks’ imprisonment and a fine of S$38,000 on Mdm Ong:

(a)     on her GCA charge, the prosecution has sought an imprisonment term of six to ten months by comparing the present case with PP v Chua Phoi Yong (“Chua”), unreported, District Arrest Case No 914729 of 2022. Chua’s case has in turn adapted and applied the sentencing framework laid down in Khoo Moy Seen v PP [2022] 5 SLR 728 (“Khoo”). The prosecution has also sought a fine of $8,000 to be imposed to disgorge the payments that Mdm Ong had received for conducting the betting operations unlawfully; and

(b)     on her MLA charge, the prosecution has sought an imprisonment term of three to five weeks and the mandatory fine of S$30,000, given the range of sentences imposed for previous cases from two weeks’ to two months’ imprisonment.

5       On the account of her plea of guilt, cooperation with the authorities and her husband’s demise that had led her to commit the offences, the defence has urged the court to exercise leniency in sentencing Mdm Ong. For the GCA offence in particular, the defence has submitted a final calibrated sentence of five to six months’ imprisonment and a fine of S$8,000, having applied the modified sentencing framework in Chua’s case, arriving at a moderate harm-low culpability assessment, and balancing the aggravating and mitigating factors.

6       I impose an aggregate sentence of ten months’ three weeks’ imprisonment and a fine of S$38,000 on Mdm Ong. I set out the reasons for my decision.

Issues to be decided

7       There are two main issues I have to decide in this case:

(a)     first, whether the Khoo sentencing framework applies to the GCA offence, and if so the extent to which it does, as well as its actual application; and

(b)     second, whether there are any aggravating or mitigating factors to justify departing from the norm sentence for the MLA offence.

8       I resolve the issues in this way:

(a)     The Khoo sentencing framework for offences under section 9(1) of the RGA can be adapted for the GCA offence. On an application of such an adapted framework, I arrive at:

(i)       an indicative starting sentence of 14 months’ imprisonment based on my moderate harm-medium culpability assessment. Balancing the aggravating presence of Mdm Ong’s gambling-related TIC charges and the mitigating effect of her early indication of guilty plea lands on the side of a downward adjustment of four months’ imprisonment to the indicative starting sentence, and

(ii)       a fine of S$8,000 to disgorge the payments that Mdm Ong received for her efforts for conducting the betting operations unlawfully; and

(b)     As Mdm Ong took steps to mitigate the harm caused by her MLA offence, I depart from the usual sentencing norm of one’s month’s imprisonment and impose a sentence of three weeks’ imprisonment instead, together with the mandatory minimum fine of S$30,000.

Analysis of issues

9       I analyse the issues in turn.

Issue 1(a): Khoo sentencing framework applies to GCA offence

10     While the defence has applied the Khoo sentencing framework to the present GCA offence, the prosecution has elected to draw comparisons with Chua’s case that has applied a modified framework and has also helpfully given some preliminary indications of its assessment if it were to apply the Khoo sentencing framework.

11     I decide that the Khoo sentencing framework for offences under section 9(1) of the RGA can be adapted for the GCA offence. In this regard, I agree with the approach in Chua’s case that has done so based on the fact that the maximum punishments for both the RGA and GCA offences are the same, and that the GCA was meant to consolidate gambling laws including the RGA: Chua at [13]-[15]. The court adapted the Khoo framework to factor in two differences: Chua at [16]. First, unlike the RGA offence, the GCA offence does not carry a mandatory minimum fine of S$20,000; second, the GCA also carries mandatory imprisonment unlike the RGA offence.

12     The sentencing approach is to first identify the level of harm caused by the GCA offence and the level of Mdm Ong’s culpability, having regard to the offence-specific factors. After ascertaining the levels of harm and culpability is to identify the indicative sentencing range. The sentencing ranges are adapted from the Khoo sentencing framework and are also on a claim trial basis:

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The indicative starting point sentence is then determined from the sentencing range. Finally, adjustments to the starting point ought to be considered having regard to the applicable offender-specific factors.

Issue 1(b): Application of Khoo framework

13     Applying the Khoo framework, the court in Chua’s case arrived at a high slight harm-medium culpability assessment and sentenced the accused in that case to 20 weeks’ imprisonment.

Harm caused is at higher end of moderate spectrum

14     The defence has assessed the level of harm to be at the lower end of the moderate spectrum. If it were to apply the framework, the prosecution has indicated a moderate harm assessment based on the fact that the harm caused in this case is higher because the value of bets collected in this case is ten times more than that in Chua’s case.

15     In this case, I assess the harm caused to be at the higher end of the moderate spectrum for three reasons:

(a)     first, the aggregate value of bets involved is substantial, based on a conservate estimate of S$192,000 over four months at the frequency Mdm Ong had worked, which was three days a week. This is compared to $14,400 in Chua’s case pegged at the high end of the low harm spectrum, and nearly $90,000 over 14 days in PP v Low Jit Chan [2021] SGMC 9 pegged at the mid-range of the moderate harm spectrum;

(b)     second, while there is no evidence of any transnational element, there is some indication of syndicate activity, and it is most certainly a group offence –

(i)       there was a scheme of operation. Mdm Ong worked for an unknown individual. An unknown Chinese man would be in touch with her at the start and the end of each workday. Specific roles were assigned to different individuals. For instance, Mdm Ong was assigned to collect bets, while another individual was assigned to pay out winnings to punters, as well as

(ii)       Mdm Ong’s monthly payout of S$2,000 for her efforts working three days per week was handsome, as was the payout to a punter for a winning number that was up to 4,000 times the initial bet; and

(c)     third, there was some difficulty of detection because Mdm Ong would only accept cash payment for the bets placed and punters were generally introduced to her services by word of mouth. Likewise in Chua’s case, the court found that there was syndicate operation and the operation was also not easy to detect: Chua at [21] and [22], with the overall harm assessed at the higher end of slight harm.

16     All things being equal more or less, the value of the aggregate bets is significantly higher in this case and the assessment of harm ought to be at the higher end of the moderate spectrum as such.

Mdm Ong’s culpability is at the lower end of medium spectrum

17     The defence has assessed the level of Mdm Ong’s culpability to be at the higher end of the low spectrum. The prosecution gave the same indication if it were to apply the framework because the accused in Chua’s case was more involved in the scheme whereas for Mdm Ong, it was a fairly simple scheme.

18     I hold a different view. As compared to Chua’s case, I assess Mdm Ong’s culpability to be at least at the lower end of the medium culpability spectrum for five reasons:

(a)     first, the duration of offending in this case was for four months from July 2022 to 2 November 2022 at a frequency of three days a week. The accused in Chua’s case worked six days a week for about three months: Chua at [38];

(b)     second, Mdm Ong was motivated by personal gain for quick money and was paid S$2,000 every month for her efforts. She was paid S$8,000 in all (with another S$2,000 meant for the month of November 2022 that was seized from her) for 48 days of work. In contrast, the accused in Chua was only paid S$9,360 for 72 days of work: Chua at [38];

(c)     third, to the extent that the operations were clockwork with a fixed routine set, there was some degree of planning and premeditation. At the start of each workday, Mdm Ong would collect a mobile phone used to record bets and a portable printer used to print betting slips from an unknown Chinese man. She would print (or handwrite) betting slips, record the bets in the handphone and collect the bets. At the end of each workday, she would hand over the phone and printer back to the unknown Chinese man, together with the day’s bets that the punters had placed;

(d)     fourth, as is evident from [18(c)] above, the level of operations was unsophisticated and rudimentary. Mdm Ong would receive and accept the bets from punters; whereas another individual would be responsible for paying out the winning to the punters; and

(e)     fifth, Mdm Ong’s role to collect bets was critical. Without her role, it would have been impossible for the operation to rake in S$4,000 to S$6,000 worth of collection in bets on a daily basis.

19     In Chua’s case, the court also found that there was some form of planning and premeditation, the level of sophistication of the operations was not high, and that the accused’s active role made the operation possible: Chua at [31], [34] and [36]. The overall culpability was assessed at the middle of medium culpability for the accused in that case. Mdm Ong’s level of culpability was somewhat comparable and should be pegged at least to the entry level of the medium culpability spectrum.

Indicative starting sentence

20     Based on a moderate harm-medium culpability assessment, the indicative sentencing range is nine months’ to two years’ imprisonment. I assess the starting sentence to be 14 months’ imprisonment. This also properly reflects the status of the GCA charge as an amalgamated charge under section 124(4) of the CPC. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Offender-specific aggravating and mitigating factors

21     I consider the aggravating and mitigatory weight to be accorded to the relevant factors personal to Mdm Ong that are present in this case:

(a)     the presence of gambling-related TIC charges is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. Mdm Ong also has a related but dated gambling antecedent in 1998. I therefore apply a slight upward adjustment to the starting sentence; and

(b)     due weight should be given to her co-operation with the authorities and her early indication of guilty plea. Although Mdm Ong disputed the statement of facts at the last plead guilty mention within stage one of the proceedings, she has eventually come round and pleaded guilty to the GCA charge based on the same statement of facts. As such, I accord her the full 30% reduction in sentence for her guilty plea.

Downward adjustment of four month’s imprisonment to indicative starting sentence

22     The upshot of balancing the aggravating and mitigating factors lands on the side of an overall downward adjustment of four months’ imprisonment to the starting sentence.

Sentence of ten months’ imprisonment imposed for GCA offence

23     The final imprisonment term that I arrive at for the GCA offence is therefore ten months’ imprisonment.

Fine of S$8,000 to disgorge profits

24     Additionally, I impose a fine of S$8,000 in respect of the payment that Mdm Ong had received over the course of four months for her efforts for conducting the betting operations unlawfully. A fine would generally be imposed in addition to any custodial sentence to disgorge any profits made by the offender: Khoo Moy Seen at [16].

Issue 2: Sentence of three weeks’ imprisonment and mandatory minimum fine of S$30,000 should be imposed for MLA offence

25     The context of the MLA offence was that Mdm Ong was a debtor-turned-runner who assisted an unlicensed moneylender, “Raymond” carry on the business of unlicensed moneylending. In return for the repayment of her loan in the form of $500 taken off her loan every month, she provided her auto-teller machine (“ATM”) card linked to her bank account in August 2019. When Mdm Ong updated her passbook around September 2019, she realised that her bank account registered numerous unexplained transactions and cancelled the ATM card.

26     The sentences for such passive assistance by way of handling an ATM card or opening a bank account have generally ranged between two weeks’ to two months’ imprisonment and the minimum fine, with the norm being one month’s imprisonment: PP v Luciana Lim Ying Ying [2015] SGDC 257 at [57]. I give some credit to Mdm Ong’s small effort in mitigating the harm caused by the offence by cancelling the card. Instead of the sentencing norm of one month’s imprisonment, I sentence Mdm Ong to three weeks’ imprisonment instead, together with the minimum fine of S$30,000 on the MLA charge.

Sentences to run consecutively

27     Because the GCA and MLA charges are separate and unrelated and they safeguard different legally-protected interests, I order the sentences on them to run consecutively: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [41] and [102].

Sentence of ten months’ three weeks’ imprisonment and fine of S$38,000 imposed

28     I impose an aggregate sentence of ten months’ three weeks’ imprisonment and a fine of S$38,000 on Mdm Ong, being:

(a)     ten months’ imprisonment and a fine of $8,000 in default five weeks’ imprisonment on the GCA charge; and

(b)     three weeks’ imprisonment and a fine of S$30,000 in default four weeks’ imprisonment on the MLA charge.

29     I backdate the sentence of imprisonment to 2 November 2022, when she was first arrested to take into account the period of custody and to exclude the bail period. She was on bail from 3 November 2022 till date. If Mdm Ong does not pay the fine of S$38,000, she will have to serve nine weeks’ imprisonment in default.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Young offenders","Criminal Procedure and Sentencing – Sentencing – Benchmark sentences – Section 3(1) read with section 12 of the Computer Misuse Act 1993"],"date":"2024-09-09","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904008 of 2024","title":"Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy","citation":"[2024] SGMC 65","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32109-SSP.xml","counsel":["Ernest Chua Kai Guan (Attorney-General's Chambers) for the Public Prosecutor","Accused in-person."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy

Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy
[2024] SGMC 65

Case Number:Magistrate Arrest Case No 904008 of 2024
Decision Date:09 September 2024
Tribunal/Court:Magistrate's Court
Coram: Shen Wanqin
Counsel Name(s): Ernest Chua Kai Guan (Attorney-General's Chambers) for the Public Prosecutor; Accused in-person.
Parties: Public Prosecutor — Muhammad Raimi Rushaidy Bin Mohamed Rudy

Criminal Procedure and Sentencing – Sentencing – Young offenders

Criminal Procedure and Sentencing – Sentencing – Benchmark sentences – Section 3(1) read with section 12 of the Computer Misuse Act 1993

9 September 2024

District Judge Shen Wanqin:

1       This is an ordinary case with extraordinary consequences. Mr Muhammad Raimi Rushaidy Bin Mohamed Rudy (“Mr Raimi”), like many others before him, opened and relinquished a bank account (“the Account”) to an unknown person without authorisation, in exchange for a lucrative monthly profit. However, unlike other cases, his offence under s 3(1) read with s 12 of the Computer Misuse Act 1993 (“the CMA Offence”) led to large sums of monies being laundered through the Account, including a sum of S$19,945.40 which was irreversibly and fraudulently wrenched from a 75-year-old retiree who lost a total sum of S$100,000 to scams.

2       Even though Mr Raimi was 21 years old at the time of sentencing, this had to be balanced against the severity of his offence and the pressing need to reign in the growing menace posed by scams-related offences. General deterrence was undoubtedly the predominant consideration in sentencing. The sentence of five months and two weeks’ imprisonment was necessary, to send a firm and unmistakable signal that such crimes would not be tolerated, even if they were committed by youthful offenders. Where serious scams-related crimes are concerned, youth is not a “Get Out of Jail” pass or the key to a more lenient sentence.

Background

3       The scams and cybercrime situation in Singapore is alarming. According to the Annual Scams and Cybercrime Brief 2023 prepared by the Singapore Police Force (“SPF”), the total number of scams cases in 2023 was 46,563, and the total amount lost through scams was S$651.8 million (https://www.police.gov.sg/-/media/4B5A6A81EDC4470EA8ED2B8CDE89EE4D.ashx). The number of scam and cybercrime cases increased by 49.6% to 50,376 in 2023, compared to 33,669 cases in 2022 (https://www.police.gov.sg/Media-Room/Police-Life/2024/02/Three-Things-you-Should-Know-About-the-Annual-Scams-and-Cybercrime-Brief-2023). Notably, youths formed about half of all scams-related offenders arrested in Singapore in 2022 (Singapore Parliamentary Debates, Official Report (5 April 2022), vol. 95, Mr Shanmugam, Minister for Home Affairs and Law). The Police also investigated more than 7,800 persons in 2022 and more than 9,600 persons in 2023 for money mule offences (Singapore Parliamentary Debates, Official Report (6 August 2024), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law).

4       The dire scams and cybercrime situation in Singapore led to the authorities adopting a multi-pronged approach of making legislative amendments, intensifying public education, and working with institutions and regulatory agencies to implement anti-scams measures, with a view to arresting the rising trend of scams and money mule cases (Singapore Parliamentary Debates, Official Report (6 August 2024), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law). On the legislative front, Parliament introduced new offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and the Computer Misuse Act 1993 (“CMA”) in 2023, to strengthen SPF’s ability to deal with such cases. The legislative amendments took effect on 8 February 2024. One of the new offences is an offence of entering into an arrangement by handing over control of a bank account to another, without taking reasonable steps to ascertain the other person’s purpose of accessing, operating or controlling the account, under s 55A(1)(a) read with s 55A(1)(b)(ii) punishable under s 55A(5) of the CDSA (“the CDSA Offence”).

5       On the sentencing front, the Sentencing Advisory Panel Guidelines for Scams-Related Offences (“SAP Guidelines”) for the new offences were published on 21 August 2024. The SAP Guidelines recommended that custodial sentences be the norm for all offenders (except for juvenile offenders dealt with in the Youth Court) who committed scams-related offences, even for those offences attracting a fine. The rationale is three-fold: (a) first, scams-related offences are prevalent and increasing; (b) second, the sentences for such offences must be punitive enough and commensurate with the harm suffered by the victims; and (c) third, the need for deterrence and the public interest in suppressing scams warrant a custodial term (SAP Guidelines at p 4).

6       The present offences occurred in the thick of the dire scams and cybercrime situation. Mr Raimi abetted by engaging in a conspiracy with an unknown party in February 2023, to knowingly provide the unknown party with unauthorised access to the banking services of OCBC. He agreed to relinquish a bank account to the unknown party in February 2023, in return for a monthly payout of S$400 to S$600. He then opened the Account with OCBC, amended the personal particulars of the Account to those provided by the unknown party, and provided the unknown party with his Internet banking credentials. This was to allow the unknown party to access the Account for the purpose of effecting unauthorised transactions. Mr Raimi thereby committed the CMA Offence. He pleaded guilty and was convicted of the CMA Offence on 6 September 2024.

7       Mr Raimi also gave his consent for another charge under s 417 read with s 109 of the Penal Code 1871 to be taken into consideration for the purpose of sentencing (“the TIC Charge”). This charge was for abetting by conspiring with the unknown party to cheat OCBC, by deceiving OCBC into believing that he would be the sole operator of the account he applied for. He thereby fraudulently induced OCBC to open the Account in his name without conducting due diligence on the ultimate beneficial owner of the Account, which OCBC would not have done so if they were not so deceived (“the Cheating Offence”).

Whether rehabilitation was displaced as the dominant sentencing consideration

8       In PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”), the High Court established a two-staged sentencing framework for youthful offenders aged 21 or below:

(a)     At the first stage, the Court’s task is to identify and prioritise the primary sentencing considerations appropriate to the youth in question.

(b)     At the second stage, the Court is to select the appropriate sentence that would best meet those sentencing considerations and the priority that the Court has placed upon the relevant ones.

9       The two-staged framework in Al-Ansari was affirmed by the Court of Appeal in PP v ASR [2019] 1 SLR 941 (“ASR”) and was the applicable legal framework in this case. While the primary sentencing consideration is ordinarily that of rehabilitation where youthful offenders are concerned, rehabilitation is neither singular nor unyielding (see A Karthik v PP [2018] 5 SLR 1289 at [33] and [44] and PP v Koh Wen Jie Boaz [2016] 1 SLR 334 (“Boaz Koh”) at [97]). The presumptive emphasis on rehabilitation is displaced where: (a) the offence is serious; (b) the harm caused is severe; (c) the offender is hardened and recalcitrant; or (d) the conditions do not exist to make rehabilitative sentencing options available (Boaz Koh at [30]; See Li Quan Mendal v PP [2020] 2 SLR 630 (“Mendal See”) at [12]; see also the Court of Appeal’s clarification in ASR at [101] that factor (d) is best considered at the second stage of the Al-Ansari framework).

10     In this case, rehabilitation was displaced as the dominant sentencing consideration, by reason of the gravity of the offences and the harm caused. The CMA Offence and Cheating Offence, insofar as they were scams-related offences that facilitated money laundering, were serious offences (see Singapore Parliamentary Debates, Official Report (19 November 2018), vol. 94, Mrs Josephine Teo, Second Minister for Home Affairs). They took place against the backdrop of the prevalence and rising trend of scams and money mule cases, as well as the worrying phenomenon of youths being involved in these cases. Parliament’s intention was to strongly prevent and deter scams-related offences, to fight scams more effectively (Singapore Parliamentary Debates, Official Report (14 February 2023), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law). Parliament’s stance towards scams-related offences and the extensive efforts made to tackle such offences were indicative of the gravity of the offences.

11     Further, the potential harm and actual harm that arose from the present offences were very significant. A bank account is the most basic financial tool used by companies, businesses, and individuals from all walks of life. Bank accounts are commonly used to store money safely and to manage finances. Given the pre-eminence and pervasiveness of bank accounts as financial tools, scams-related offences involving the relinquishing of bank accounts not only undermined the public’s confidence in the reliability of the banking systems, but also jeopardised the efficacy, security and stability of the financial systems. If left unchecked, these offences are “akin to a slow drip of subtle but potent poison that will inexorably and irremediably damage Singapore’s standing, both as a financial hub as well as a preferred centre of commerce” (PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando”) at [88]). The potential harm arising from the present offences was therefore very significant.

12     The actual harm that arose from Mr Raimi’s offences was serious and extensive. Mr Raimi, by relinquishing the Account, enabled an unknown party to conceal his true identity, circumvent the bank’s due diligence checks, gain unauthorised access to a banking service for illegitimate purposes, and remain undetected while creating havoc in the online sphere. As a result, the Account was misused as a vehicle for money laundering and the bank’s security system was undermined. Large sums amounting to a total of nearly S$74,000 were laundered and dissipated through the Account. These sums included S$19,945.40 which belonged to an elderly retiree who lost the monies to scams. In addition, time and resources were clearly expended in investigating the offences and in tracing the monies. The actual harm that arose from the present offences was therefore very significant.

13     By reason of the gravity of the offences and the harm caused, rehabilitation was displaced as the dominant sentencing consideration. Accordingly, the dominant consideration necessarily turned to deterrence and the appropriate sentence must be the legislatively prescribed option of imprisonment (Mendal See at [13]).

The appropriate sentence

14     In determining the appropriate length of imprisonment, the main issue I had to resolve was whether guidance could be taken from the sentencing benchmark approach recommended by the SAP Guidelines for the CDSA Offence. I resolved this issue in the affirmative for the following reasons. First, the mischief targeted by s 3(1) read with s 12 of the CMA and s 55A of the CDSA was the same. The intent of both provisions was to deter the unauthorised access and misuse of bank accounts (see Singapore Parliamentary Debates, Official Report (9 May 2023), vol. 95, Mrs Josephine Teo, Second Minister for Home Affairs; see also the Long Title of the Computer Misuse Act 1993). Second, the nature of the CMA Offence and the CDSA Offence was also the same – the crux of the matter was that an offender had relinquished a bank account to another. As such, I agreed with the Prosecution that there was no good reason for adopting a differentiated approach for the CMA Offence.

15     That said, as the CMA Offence and the CDSA Offence attracted different prescribed punishments, in fairness to Mr Raimi, the starting sentence for the CMA Offence should also be adjusted. This was based on two considerations: (a) first, the starting sentence should not be excessive when compared to the applicable maximum punishment; and (b) second, there should be relative proportionality in the starting sentences between the different offences (SAP Guidelines at p 7). As the maximum imprisonment terms prescribed for the CMA Offence and the CDSA Offence were two years and three years respectively, the starting sentence for the CMA Offence was derived by applying a two-third ratio to the starting sentence of six months’ imprisonment for the CDSA Offence. I therefore agreed with the Prosecution that the starting sentence for the CMA Offence was four months’ imprisonment, for a first-time offender convicted after a trial in an archetypal case.

16     I then turned to the offence-specific and offender-specific factors, which warranted an uplift in the sentence. First, Mr Raimi was motivated to commit the offence for personal gain. He was enticed by the substantial payout of S$400 to S$600 per month and wanted to earn fast cash. Second, a large quantum of funds was received and transferred out of the Account over a period of five days. Between 12 March 2023 and 16 March 2023, S$73,367.81 was credited into the Account, and S$73,312.69 was withdrawn from the Account, leaving only S$55.12 in the Account at the time of seizure.

17     Third, amongst the funds that were dissipated through the Account, S$19,945.40 were scam proceeds that were taken from a vulnerable victim. The victim was a 75-year-old retiree and an elderly man who lost a total sum of S$100,000, including the sum of S$19,945.40, to a police impersonation scam. Even though the monies that were dissipated through the Account were limited to S$19,945.40, none of the monies had been recovered to date. As for the offender-specific factors, the TIC Charge for fraudulently inducing OCBC to open the Account was connected and similar in nature to the CMA Offence. As such, the effect of the TIC Charge was to enhance the sentence for the CMA Offence (PP v UI [2008] 4 SLR(R) 500 at [37]–[38]).

18     Given the offence-specific and offender-specific factors, I applied a four-month uplift to the starting sentence of four months for the CMA Offence. I then applied the full sentencing discount of 30% on account of Mr Raimi’s early indication of his plea of guilt (Stage 1) and arrived at the sentence of five months and two weeks’ imprisonment. For the sake of completeness, I must add that I did not place any significant weight on Mr Raimi’s youth in sentencing. While the assumption would ordinarily be that the young did not know any better (PP v Mok Ping Wuen Maurice [1998] 3 SLR(R) 439 at [21]), Mr Raimi should have known better than to relinquish his account to a stranger for profit. He was already on the cusp of adulthood and was not a young and ignorant teenager. He showed during the hearing that he had the maturity to appreciate, at the time he opened the Account, that the Account was meant for his own use and should not be used by any other persons for any other unauthorised transactions. Yet, he chose quick profits rather than to do what was right. Accordingly, there was no reason for me to accord any significant sentencing discount on account of his youth alone.

Conclusion

19     This case demonstrates that insofar as scams-related offences are concerned, outcomes do matter (see the explanation of the outcome materiality principle in PP v Hue An Li [2014] 4 SLR 661 at [70]–[74] and Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 at [43]–[45]). The scourge of scams must be firmly nipped in the bud before it morphs into a full-blown disaster. The price of security is unstinting vigilance and the unflinching imposition of appropriately stiff sentences in dealing with transgressions (Fernando at [88]). The sentence of five months and two weeks’ imprisonment sends a clear and unmistakable signal that offences involving the relinquishing of a bank account for unauthorised purposes will not be tolerated. Any person who chooses to misuse his bank account for quick profits must be prepared to suffer the pain of incarceration.

"},{"tags":["Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(2)(b) read with Section 65(6)(a) – Driving without reasonable consideration causing death – Sentencing"],"date":"2024-09-09","court":"District Court","case-number":"District Arrest Case No 913489 of 2024, Magistrate's Appeal No 9174 of 2024 - 01","title":"Public Prosecutor v Yuan Changqing","citation":"[2024] SGDC 233","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32107-SSP.xml","counsel":["DPP Sean Teh (Attorney-General's Chambers) for the Public Prosecutor","The accused in person."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Kok Shu-en","html":"Public Prosecutor v Yuan Changqing

Public Prosecutor v Yuan Changqing
[2024] SGDC 233

Case Number:District Arrest Case No 913489 of 2024, Magistrate's Appeal No 9174 of 2024 - 01
Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Sean Teh (Attorney-General's Chambers) for the Public Prosecutor; The accused in person.
Parties: Public Prosecutor — Yuan Changqing

Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(2)(b) read with Section 65(6)(a) – Driving without reasonable consideration causing death – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9174/2024/01.]

9 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Yuan Changqing is a 39-year-old male Chinese national who pleaded guilty to one charge under section 65(1)(b) punishable under section 65(2)(b) read with section 65(6)(a) of the RTA for driving without reasonable consideration for other persons using the road.

2       I sentenced the accused to 10 months’ imprisonment and a disqualification and prohibition period of 8 years with effect from the date of release.

3       The accused is dissatisfied with the sentence and has filed an appeal.

Facts

The accident

4       On 12 July 2023, the accused was the driver of a motorbus bearing the registration number PD6999T, operating a bus shuttle service run by the company Leisure Frontier (S) Pte Ltd between Sembawang wharves, Bukit Canberra Hawker Centre and Yishun MRT Station.

5       The accused was driving along Yishun Ring Road towards Yishun Avenue 2, towards Sembawang wharves. As the accused reached the signalised cross-junction of Yishun Ring Road and Yishun Avenue 2, the traffic light signal was green in his favour. As the accused was on the left most lane of Yishun Ring Road, this meant that the accused could make a discretionary left turn onto Yishun Avenue 2 towards Canberra Road if there were no persons crossing the pedestrian crossing.

6       At about 5.55pm, one Jeffson Tang (“the deceased”), an 18-year-old boy, began cycling across the pedestrian crossing at Yishun Avenue 2, while the green man traffic signal was blinking in his favour, which signalled that he had the right of way.

7       At the same time, the accused executed the discretionary left turn from Yishun Ring Road onto Yishun Avenue 2 without slowing down or stopping his vehicle, and failed to keep a proper lookout for the deceased as he cycled across the pedestrian crossing. The accused’s motorbus collided with the deceased, causing the deceased to be flung off his bicycle and fall onto the road, under the accused’s motorbus. The deceased was then run over by the motorbus’ rear left tyre.

8       Upon hearing a sound from the rear left side of the bus, the accused stopped the bus and alighted, where he saw the deceased lying on the road surface along Yishun Avenue 2 with blood coming out from his head. The accused called for the police while the deceased’s father and other passers-by called for an ambulance. The accused remained at the scene till the police and ambulance arrived.

9       The incident was captured on two cameras on the bus, one which captured a front view and one that captured a left-side view. It was also captured on an in-car camera of a witness whose car was on the opposite side of the junction at the time of the incident.

Prevailing conditions

10     At the material time, the weather was fine, road surface was dry, traffic flow was moderate, and visibility was good. There was no complaint of traffic light malfunction at the time of the accident on 12 July 2023.

The injuries

11     A paramedic who attended at the scene observed the deceased lying in a supine position with his face facing rightward, and blood on the road surface. The deceased was also found to be bleeding from the ear and his face was deformed, with multiple abrasions on his lower limbs. The paramedic found that the deceased had no pulse and was not breathing. The deceased was pronounced dead at about 6.15pm on 12 July 2023.

12     In the autopsy report dated 13 July 2023 prepared by Dr Nadia Lee Wen Yun of the Health Sciences Authority Mortuary, the deceased’s cause of death was certified as “HEAD AND CHEST INJURIES”. The examining doctor found that the injuries present on the deceased were consistent with that being sustained in a motor vehicle collision.

Vehicle assessments

13     In an inspection report dated 14 September 2023 prepared by Senior Technical Investigator Muhd Nazril of LKK Auto Consultants Pte Ltd, the deceased’s bicycle was found to have been damaged all around. The damaged parts included the front fork assembly, right handlebar end, sub frame, rear sub frame, left pedal, gear train, seat, rear wheel rim. A mechanical inspection found that the two tyres of the deceased’s bicycle were in serviceable condition.

14     In a mechanical inspection report dated 12 October 2023 by Technical Investigator Sherwin Beh of LKK Auto Consultants Pte Ltd, the accused’s motorbus was noted as having appeared to have sustained no damage at the time of the inspection. The report indicated that the motorbus’ engine system, transmission system, steering system, braking system and tyres were all in serviceable condition, with no evidence to suggest that there was possible mechanical failure and/or abnormal behaviour to the motorbus that could have caused or contributed to the accident.

Antecedents

15     The accused had one previous conviction for speeding on 16 February 2021, which involved him exceeding the speed limit while driving a heavy vehicle.

16     He had also previously compounded two offences of careless driving, one for a contravention of Rule 29 of the Road Traffic Rules in May 2019, and one for an offence under section 65(5)(a) of the RTA in May 2020. Both offences were compounded for $250 each.

Prosecution’s sentencing submission

17     The Prosecution submitted that the appropriate global sentence was between 10 to 12 months’ imprisonment with the mandatory minimum disqualification period of 8 years, noting that the dominant sentencing principle in this case was deterrence.

18     Reference was made to the sentencing framework for offences under section 65(2)(b) read with section 65(6)(a) of the RTA as set out in the case of Public Prosecutor v Lim Wei Liang William [2023] SLR(StC) 614 (“William Lim”). Applying the framework, the Prosecution submitted that the accused’s culpability could be regarded as being at the middle to higher end of the low culpability range. The following culpability enhancing factors were highlighted:

(a)     The accused was driving a heavy vehicle and was thus required to take extra care and consideration but had failed to do so.

(b)     The accused had violated multiple traffic rules, namely: (i) failing to keep a proper lookout when approaching a junction and conducting checks to ensure it is safe to move off before doing so as required under rule 72 of the Highway Code, and (ii) failing to stop before the signalised traffic junction as required by rule 4 of the Road Traffic (Pedestrian Crossings) Rules.

19     The Prosecution acknowledged that there was some contribution to the accident by the deceased’s failure to stop and look out for oncoming traffic before using the pedestrian crossing, as was required of him under regulation 13A(1)(b) of the Active Mobility Regulations 2018.

20     Based on this assessment of culpability, the Prosecution submitted that the indicative starting sentence ought to be between 13 to 16 months’ imprisonment.

21     As for the offender specific factors, it was highlighted that the accused was traced for traffic offences as set out at [15] to [16] above, which they argued showed a pattern of unsafe and careless driving by the accused and a disregard for traffic rules. On account of these antecedents, the Prosecution argued that an uplift to 15 to 18 months’ imprisonment was appropriate.

22     Given the accused’s plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentence for Guilty Pleas (“PG Guidelines”), the Prosecution accepted that a 30% reduction was appropriate in this case, bringing the overall sentence down to 10 to 12 months’ imprisonment.

Defence’s sentencing submission and mitigation

23     In his oral address to the court, the accused first sought to provide an explanation for his previous antecedents. He explained that as a driver who worked on the road daily, his work schedule was demanding and tiring. As a result of his packed work schedule, the accused said that he did not get to rest well at nights, he was often sleepy, and he thought that this could have caused him to be negligent or flout the rules when driving.

24     In relation to his previous speeding conviction, he pointed out that this was committed during the Covid-19 pandemic. He explained that his company arranged for transportation of migrant workers to get their vaccinations and that his because of his packed work schedule, he kept rushing and he said this may have caused his flouting of the rules.

25     As for the offence in question, the accused expressed his remorse and apologised to the family of the deceased, recognising that it was too late for him to say anything at this stage.

26     In asking for a lightest possible sentence, the accused explained that his father had suffered an aneurysm earlier in the year and was currently in a poor state of health, as such he expressed his desire to be able to return home quickly to be with his father.

Reasons for the sentences imposed

Punishment provisions

27     Given the accused’s previous conviction for speeding under section 63 of the RTA, section 65(8) of the RTA provides that he is a repeat offender, thereby triggering the enhanced punishment provision under section 65(2)(b).

28     Section 65(2)(b) of the RTA provides that a repeat offender is liable to a fine not exceeding $20,000 or to imprisonment for a term exceeding 6 years or to both. Both the maximum fine and imprisonment terms that this provision provides for are double that which applies to a first-time offender under section 65(2)(a).

29     Section 65(6)(a) of the RTA provides that a court that convicts an offender under section 65(2)(b) is to also order that person to be disqualified from holding or obtaining a driving licence for a period of not less than 8 years, unless there are special reasons to not order or order otherwise.

The sentencing framework

30     There is presently no sentencing framework for an offence under section 65(2) of the RTA for the offence of careless or inconsiderate driving causing death that has been set down or endorsed by the High Court.

31     As the Prosecution pointed out, the case of William Lim, which is a decision of the District Court, provides helpful reference for this present case. William Lim itself draws on an earlier decision of the District Court in the case of Public Prosecutor v Selvakumar Ranjan [2020] SGDC 252 (“Selvakumar Ranjan”), which set out a sentencing framework for offences under section 65(2)(a) of the RTA.

32     Under both the Selvakumar Ranjan and William Lim frameworks, the sentencing court first identifies the accused’s level of culpability based on a set of working definitions:

Level of culpability

Definition

Low

Generally, no dangerous driving behaviour exhibited.

Typically careless or inconsiderate manner of driving like failing to give way when other road users have the right of way or exhibiting poor control of the vehicle.

Moderate

Some manner of dangerous driving behaviour exhibited. This may include swerving across lanes suddenly and without warning, driving against the flow of traffic, weaving in and out of traffic, speeding, beating red light, handphone driving, sleepy driving or failing to use visual aids while driving, etc.

High

Serious manner of dangerous driving exhibited. This may include several forms of dangerous driving exhibited, dangerous driving behaviour exhibited over an extended distance or deliberate bad driving behaviour.



33     Based on the assessed level of culpability, the frameworks set out corresponding sentencing ranges for each tier of culpability. Unlike sentencing frameworks for road traffic offences that involve other kinds of harm, such as under section 65(3) or section 65(4), the element of harm under section 65(2) is constant since death is always the outcome, as such there is no harm element incorporated in the framework.

34     Under the William Lim framework, the sentencing ranges were adjusted upward from those in Selvakumar Ranjan to account for the higher prescribed punishment under section 65(2)(b):

Level of culpability

Sentencing range under section 65(2)(b) RTA

Low

Eight months to two years’ imprisonment (a fine of up to $30,000 or a lower sentence may be imposed in exceptional circumstances)

Moderate

2–4 years’ imprisonment

High

4–6 years’ imprisonment



35     Once a starting point is identified within the indicative sentencing range, adjustments can be made to take into account offender-specific factors followed by a final look to consider any application of the totality principle.

Assessment of the accused’s level of culpability

36     I agreed with the Prosecution that the accused’s level of culpability in this case could be considered low, though it ought to be pegged at the middle to higher end of the low range of culpability.

37     On the facts of the case, there were no obvious forms of dangerous driving by the accused such as those identified in the description of the moderate level of culpability above at [32]. That said, I did not think that the accused’s level of culpability could be considered as being at the very lowest end of low culpability.

38     As the Prosecution pointed out, there were a number of aggravating factors that ought to affect the assessment of his level of culpability in this case, including the flouting of the Highway Code and the Road Traffic Rules. It also bears emphasising that not only did the accused fail to stop at the signalised junction before he executed the turn, but he failed to even slow down as he approached the junction. As seen in the footage, the bus travelled at a constant speed as it travelled down Yishun Ring Road and as it approached the junction, with the speed dipping slightly only as the left turn was made.

39     While the Statement of Facts does not expressly state so, it would appear from the fact that the accused only stopped the bus when he heard a sound from the collision that he had not even registered the presence of the deceased on the pedestrian crossing until the collision had taken place. This was despite the fact that the turn involved the accused moving across a pedestrian crossing which was on the blinking green man signal, which ought to have alerted the accused to likelihood of pedestrians being present at the crossing, or about the enter the crossing.

40     While the Prosecution accepted that there was some contribution by the deceased in the sense that he had failed stop and look out for oncoming traffic before entering the pedestrian crossing, in my view the impact that this ought to have on the accused’s level of culpability, if any, ought to be quite minimal.

41     In this regard, I was mindful of the High Court’s decision in Guay Seng Tiong Nickson v Public Prosecutor [2016] 3 SLR 1079 (“Nickson Guay”) where it was held that the conduct of a victim or a third party must have a direct bearing on the culpability of the offender in order to affect the sentence being imposed. So, while the deceased can indeed be seen entering the pedestrian crossing without slowing or stopping, and I accepted that his conduct may have contributed to the outcome of this accident, I could not see how this diminished the lack of care that the accused had exhibited in his failure to keep a proper lookout for pedestrians at the pedestrian crossing. By failing to even slow down the bus while he was approaching the junction and then executing the turn, the accused had clearly compromised his ability to keep a proper lookout for other road users while he made that turn.

42     I also agreed with the Prosecution that given that the accused was operating a heavy vehicle, namely a motorbus, that ought to have required him to take extra care since there is a potential for greater harm to occur when a heavy vehicle is involved in an accident. In the case of the motorbus, the fact that this was a longer vehicle than a regular car meant that the accused needed to exercise greater care in ensure that a proper lookout was kept for the entire length of the vehicle.

43     Taking reference from the William Lim sentencing band for low culpability case, which is a range of between 8 months to 2 years imprisonment, in my view a starting point around the middle of the range was appropriate and I agreed with the Prosecution’s suggested starting point of around 13 to 16 months’ imprisonment.

The offender specific factors

44     Turning to the offender specific factors in this case, the significant aggravating factor in this case was the accused’s antecedents. I agreed with the Prosecution that the accused’s history of traffic infringements suggested a pattern of unsafe and careless driving. These antecedents were recent and indeed showed that the present case was not an isolated incident of poor driving conduct by the accused.

45     The accused, on his part, accepted that he had been negligent in his previous driving conduct and sought to provide explanations for why he had driven in such manner. The suggestion that was made was that his poor driving was a result of work requirements imposed on him by his employer, which he was simply trying to fulfil as part of the job and to make a living.

46     While I empathised with the accused’s situation and could appreciate that he was doing what he could to make a living as an employed driver, I could not see how any of this affected his level of culpability for the present offence, nor did it reduce the aggravating weight of his driving antecedents. As the driver of a bus that can ferry a large number of passengers, it must have been clear to him that each time he got behind the wheel of the bus and drove in a manner that was less than safe, he put the safety of all his passengers as well as other road users at risk. As much as he might have been concerned for his job security, I did not think that could be an excuse for compromising on the safety of his passengers and other road users.

47     As for mitigating factors, I noted that the accused had pleaded guilty well within Stage 1 of the PG Guidelines, for which up to 30% discount can be accorded. The accused was also clearly remorseful, as he expressed his apologies to the family of the deceased.

48     Taking these factors into consideration, I made the appropriate adjustments from the starting point of 13 to 16 months’ imprisonment and arrived at 10 months’ imprisonment, which in my view adequately and appropriately reflected the overall criminality of the accused in this case.

49     I did not think that there were any special reasons not to impose a disqualification period below the mandatory minimum period of 8 years in this case. As the accused is a foreigner, I also made an order under section 47F of the RTA prohibiting him from driving any motor vehicle in Singapore for the same period of time.

Sentencing precedents

50     In arriving at my decision on sentence, I had regard to the case of William Lim as a sentencing precedent. In William Lim, the offender also faced a charge for an offence punishable under section 65(2)(b) of the RTA, due to a previous speeding conviction which triggered the enhanced punishment provision for repeat offenders. He was sentenced to 8 months’ imprisonment and 8 years’ disqualification.

51     In William Lim, the offender was driving a minibus out of a carpark, intending to turn right. As he approached the exit of the carpark, the offender checked for oncoming traffic and spotted a motorcycle that was headed towards him on his right. The accused did not stop at the stop line at the exit of the carpark and in doing so also failed to comply with a stop sign. As the accused exited the carpark and executed the right turn, he checked for vehicles coming from his left, at which point the motorcycle collided into his vehicle. The motorcyclist was flung off the motorcycle and landed on a grass verge. He subsequently passed away from the injuries sustained in the accident.

52     Apart from the previous speeding conviction that triggered the enhanced punishment provision for repeat offenders, the offender in William Lim had another speeding conviction, though it was for a speeding offence committed on the same day as the other speeding offence, i.e. both speeding offences were committed on the same day.

53     While the present case similarly involved a driver who had flouted traffic rules by failing to stop and failing to keep a proper lookout, in my view the accused’s conduct in this case was more aggravated than that in William Lim by his failure to even slow down as he approached the junction. Bearing in mind that the vehicle that the accused was driving was also a much heavier one, being a motorbus, which heightened the level of potential harm that could result from an accident, to my mind the failure to stop or even slow down evinced a more significant degree of culpability.

54     This is consistent with the view expressed by the court in William Lim, where the court noted (at [69] and [70]) that the culpability of the offender in Selvakumar Ranjan was higher than that of the offender in William Lim, noting that the main culpability enhancing factors in Selvakumar Ranjan were the fact that he was driving a heavy vehicle in addition to the fact that he had failed to stop at the stop line. The court in Selvakumar Ranjan had pegged the level of culpability of the offender at the higher end of the of the range of low culpability.

55     There is also the fact that the accused in this case had antecedents for similar offences, namely the two compounded offences for careless driving, which to my mind suggested a more concerning pattern of unsafe driving behaviour. The accused himself confirmed that he did in fact drive whilst feeling tired because of his work schedule, which he thought might have contributed to his poor driving on those occasions.

56     In my view, the present case was more aggravated than the facts in William Lim, as such I did not think that the sentence of 10 months’ imprisonment was out of step with this precedent.

Conclusion

57     For the reasons set out above, I sentenced the accused to 10 months’ imprisonment and a disqualification and prohibition period of 8 years with effect from her date of release.

58     The accused was remanded from the date of his first mention on 24 July 2024 and is presently serving his sentence.

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Offences – Drink Driving – Repeat Offender"],"date":"2024-09-09","court":"District Court","case-number":"District Arrest Case No. 912256 of 2022","title":"Public Prosecutor v Zhong Liu","citation":"[2024] SGDC 25","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32106-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Prosecution","Cory Wong Guo Yean (Invictus Law Corporation) and Ng Yong Ern Raymond (Tan Lay Keng & Co.) for the Defence."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Zhong Liu

Public Prosecutor v Zhong Liu
[2024] SGDC 25

Case Number:District Arrest Case No. 912256 of 2022
Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Prosecution; Cory Wong Guo Yean (Invictus Law Corporation) and Ng Yong Ern Raymond (Tan Lay Keng & Co.) for the Defence.
Parties: Public Prosecutor — Zhong Liu

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Offences – Drink Driving – Repeat Offender

9 September 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mr Zhong Liu, claimed trial for drink driving. He agreed that he drank alcohol and drove. His blood alcohol level exceeded the drink driving limit. The sole issue was whether his blood sample had been taken by a registered medical practitioner.

2       Three witnesses (nurse, police officer and Health Sciences Authority analyst) gave testimony. The trial started on 15 August 2023 with a second day of trial on 22 January 2024. The trial was adjourned to 22 August 2024 for the doctor, who had been on maternity leave, to give evidence.

3       The Accused pleaded guilty on 22 August 2024, which was about one year after the trial had started.

4       The sentence was as follows:

Defence’s

Sentencing Position

Prosecution’s

Sentencing Position

Court

Not more than 8 days’ to 3 weeks’ imprisonment

+

Fine of $5,000 to $6,000

+

Driving disqualification of 5 years

4 to 5 weeks’ imprisonment

+

Fine of $5,000 to $6,000

+

Driving disqualification of 5 years

6 weeks’ imprisonment

+

Fine of $5,000 i/d 25 days

+

Driving disqualification of 5 years



 

5       Driving is a privilege — that privilege was abused when the Accused drank and drove. And the sentence has to reflect that he is a repeat offender.

6       The Accused is serving his sentence. I set out my reasons.

Charge

7       The Accused faced one charge under s 67(1)(b) punishable under s 67(1) read with s 67(2)(b) of the Road Traffic Act 1961 (“the Act”):

NAME: ZHONG LIU

GENDER/ AGE : MALE / 49 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 23 April 2022 at or about 1.40 a.m., along South Canal Road towards the direction North Canal Road, Singapore, when driving motorcar, SKE9897M, did have so much alcohol in your body that the proportion of it in your blood, to wit, not less than 81 milligrams of alcohol in 100 millilitres of blood, exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood and you have thereby committed an offence under Section 67(1)(b) of the Road Traffic Act 1961.

And further, that you, before the commission of the said offence, has been convicted on an earlier occasion, that is to say that you, on 27 August 2018 had been convicted for an offence of Drink Driving under Section 67(1)(b) of the Road Traffic Act, Chapter 276 (DAC/906381/2018) in Subordinate Court of Singapore; which conviction has not been set aside, and you shall thereby be liable for punishment under Section 67(1) read with Section 67(2)(b) RTA 1961.

Statement of Facts

8       The Accused is Zhong Liu, a 51-year-old male Singaporean.[note: 1]

9       The complainant is one SGT(2) Nurul Aqilah Binte Azmi, a Traffic Police officer.[note: 2]

10     At the material time, he was the owner and driver of motor car bearing vehicle registration number SKE 9897 M (“his motor car”).[note: 3]

11     On 23 April 2022, at or about 1.40am, the Accused was driving his motor car along South Canal Road towards the direction of North Canal Road. He was stopped for checks by the complainant at a roadblock along South Canal Road towards the direction of North Canal Road.[note: 4]

12     The complainant observed that the Accused reeked of alcohol. She proceeded to administer a breathalyzer test on the Accused. The result showed ‘Fail’. The Accused was thus arrested for driving under the influence of alcohol.[note: 5]

13     He was escorted to the Traffic Police Headquarters for the Breath Analyzing Device (BAD) test. However, he was rejected by the medical officer as he had just returned from the United States of America just two days before his arrest. He was then escorted to Changi General Hospital (CGH) for a blood alcohol test.[note: 6]

14     On 23 April 2022 at about 2.32am, at CGH, SS Muhammad Norsiddiq Ibrahim administered a warning to the Accused under section 70(5) of the Road Traffic Act 1961 (“the Act”). The Accused consented to a blood sample being taken from him.[note: 7]

15     On 23 April 2022, at about 3.57am, at CGH, a blood sample was taken from the Accused.[note: 8]

16     Leong Hsiao Tung, an Analyst with the Analytical Toxicology Laboratory of the Health Sciences Authority, released a report dated 6 May 2022 (Lab Report No 2206925-TX-001) that stated that the proportion of alcohol in the Accused’s blood was 81 milligrammes (mg) of alcohol in every 100 millilitres (ml) of blood. The prescribed limit is 80mg of alcohol in every 100ml of blood. The Accused’s blood alcohol level thus exceeded the prescribed limit.[note: 9]

17     The Accused admitted that, on 22 April 2022, he started drinking with his friend at a pub located at Boat Quay since about 8pm. Sometime after midnight on 23 April 2022, the Accused had then left the pub with a friend, whom he had intended to send home in his motor car. While driving along South Canal Road towards the direction of North Canal Road, he was stopped at the roadblock.[note: 10]

18     Prior to this incident, on 27 August 2018, the Accused was convicted of one count of drink driving under s 67(1)(b) of the Road Traffic Act, Chapter 276, in the State Courts of Singapore, vide DAC/906381/2018, which conviction has not been set aside to date.[note: 11]

19     The Accused has thereby committed an offence under s 67(1)(b) of the Act, and he is liable to be punished under s 67(1) read with s 67(2)(b) of the Act. He admits to the foregoing offence and stands charged accordingly.[note: 12]

Sentencing

Prescribed punishment

20     The prescribed punishment for s 67(1) of the Act (repeat offender) is:

(a)     a fine of not less than $5,000 and not more than $20,000 and to imprisonment for a term not exceeding 2 years, and

(b)     a driving disqualification for a period of not less than 5 years.

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751])

21     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44]

(Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]) (see also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751]).

22     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

23     The Prosecution sought a sentence of 4 to 5 weeks’ imprisonment, with a fine of $5,000 to $6,000, and driving disqualification of 5 years with effect from the Accused’s release from prison.[note: 13]

Mitigation plea

24     The Defence sought a sentence of not more than 8 days’ to 3 weeks’ imprisonment, a fine of S$5,000 and driving disqualification of 5 years.[note: 14]

The Law

(1)   Legislative history of s 67 of the Act

25     The offence under s 67(1)(b) of the Act was enacted on 10 May 1996, following the passing of the Road Traffic (Amendment) Act 1996 (No. 11 of 1996) (“the 1996 Amendment Act”).

26     The 1996 Amendment Act effected two changes that are relevant for present purposes. First, it repealed s 70 of the Road Traffic Act (Cap 276, 1994 Rev Ed). Second, it re-enacted s 67 of the Act.

(See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

27     The present iteration of the offence under s 67 of the Act was enacted on 1 November 2019, following the passing of the Road Traffic (Amendment) Act 2019 (Act 27 of 2019) (the “2019 Amendment Act”). The reforms introduced through the 2019 Amendment Act were aimed at providing stronger deterrence against irresponsible driving and to tighten the regulatory regime against irresponsible driving: Singapore Parliamentary Debates, Official Report (8 July 2019) vol 94 (Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993 at [26]).

28     Specifically, in relation to the offence of drink driving, the Second Minister for Home Affairs, Mrs Josephine Teo explained as follows:

… Drivers who are drunk or drug-impaired show a blatant disregard for the safety of other road users. … Currently, such motorists typically face the same maximum penalties as other motorists who cause accidents. The judge may take into consideration that the offender was driving under influence during the sentencing itself. But it would be clearer to have our intentions codified in law. In fact, our intention is for offenders driving under influence to face stiffer penalties to signal the aggravated seriousness of their actions.

…

… during the public engagement process, respondents felt that even a standalone driving under influence offence where no accident is caused, should attract higher penalties to better reflect its gravity.

We agree with this view. The consumption of alcohol or drugs already makes a motorist a danger to other road users. Section 67 in Clause 17 of the Bill will raise the penalties to about double the current levels. We will also raise the existing minimum DQ period to two years for first-time driving under influence offenders and five years for second-time driving under influence offenders. A lifelong disqualification will be imposed on third-time driving under influence offenders. [emphasis added]

(2)   Mandatory imprisonment for repeat drink driving

29     An imprisonment term is mandatory for second offenders under s 67(1) of the Act.

30     The first port of call was the Court of Criminal Appeal case of Public Prosecutor v Tan Teck Hin [1992] 1 SLR(R) 672 at [7]. The Court of Criminal Appeal stated that under s 67(1) of the Act, repeat offenders were subject “to both a minimum fine and a mandatory term of imprisonment” (emphasis added).

31     The High Court in Public Prosecutor v Lee Soon Lee Vincent [1998] 3 SLR(R) 84 at [38] agreed that a jail term was mandatory for second offenders under s 67(1) of the Act. In reaching this conclusion, the High Court considered the Road Traffic (Amendment) Bill 1990.

32     At the second reading of the Road Traffic (Amendment) Bill 1990, the Minister for Law and Home Affairs, Professor S. Jayakumar, said [Singapore Parliamentary Debates, Official Report (28 March 1990) vol. 55 at col 960]:

Sir, at present, a person driving under the influence of alcohol is liable to a fine not exceeding $1,000 or imprisonment not exceeding six months. Repeat offenders can be fined up to $2,000 or imprisoned for 12 months, or both. The amendments seek to enhance this penalty by increasing the fine and imposing mandatory imprisonment for repeat offenders. … For a repeat offender, the fine will be between $3,000 and $10,000, but this repeat offender will be subject to mandatory imprisonment, the period of which will not exceed 12 months. The court will decide on the period of imprisonment. [emphasis added]

33     The Sentencing Practice in the Subordinate Courts (3rd Edition: Vol II) at 1722 states as follows:

For repeat offenders, a sentence of imprisonment and fine is mandatory. [emphasis added]

34     Finally, the High Court in Lee Shin Nan v Public Prosecutor [2023] SGHC 354 at [53] referred to Lee Soon Lee Vincent and at [48(b)] stated that a jail term was mandatory for repeat offenders under s 67(1) of the Act.

(3)   Driving disqualification order

35     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14] and Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64].

36     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

37     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. A 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

38     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Act.

Decision on sentence

39     Drink driving is irresponsible. A motorcar in the hands of a drunk driver is a potentially devastating weapon writ large – and needlessly so: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

40     For repeat drink driving, the applicable case is Lee Shin Nan.

Framework in Lee Shin Nan v Public Prosecutor

(1)   Starting sentence range

41     The court should first determine the sentence range for the offence based on the offender’s Alcohol Level Band as if the offender were a first-time offender, using the sentencing ranges set out in the framework in Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993, and then apply an uplift to the range of the fine and the disqualification period taking into account only the level of alcohol for the present conviction: Lee Shin Nan at [57(a)].

42     The starting ranges are as follows:

Level of alcohol

(μg per 100ml of breath)

Under the Rafael

Voltaire Framework

for first-time

offenders

The initial uplift

Indicative band

for repeat

offenders

36 – 54

Fine: $2,000 –$4,000

Disqualification: 24 – 30 months

Fine: $3,000 –$4,000

Disqualification: 36 months

Fine: $5,000 –

$8,000

Disqualification:

60 – 66 months

55 – 69

Fine: $4,000 –$6,000

Disqualification: 30 – 36 months

Fine: $4,000 –$5,000

Disqualification: 36 – 42

months

Fine: $8,000 –

$11,000

Disqualification:

66 – 78 months

70 – 89

Fine: $6,000 –$8,000

Disqualification: 36 – 48 months

Fine: $5,000 –$6,000

Disqualification: 42 – 48 months

Fine: $11,000 –

$14,000

Disqualification:

78 – 96 months

≥ 90

Fine: $8,000 –$10,000

Disqualification: 48 – 60 months (or longer)

Fine: $6,000 –$7,500

Disqualification: 48 – 60

months (or longer)

Fine: $14,000 –

$17,500

Disqualification:

96 –120 months (or longer)



43     Based on the Accused’s alcohol level, the applicable sentencing range (for a plead guilty case) is Band 1, viz. fine of $5,000 – $8,000 and driving disqualification of 60 – 66 months.

(2)   Adjustment on account of the repeated offending behaviour

44     At the second stage, the court should calibrate the provisional fine and disqualification period having regard to two factors:

(a) the actual quantity of alcohol within the applicable Alcohol Level Band; and

(b) the circumstances that pertain to the repetition of the offending behaviour: Lee Shin Nan at [64].

45     The first factor (actual quantity of alcohol) is obvious.

46     The circumstances pertaining to the repetition of the offence are also an important consideration because they constitute one of the primary factors for the higher sentence: Lee Shin Nan at [65].

47     In relation to the latter factor, it is appropriate to consider the following:

(a)     the interval between the previous conviction(s) and the present one. The longer the interval, the less this will weigh as a particularly aggravating factor;

(b)     the number of such offences. The more such offences, the more aggravating this will be;

(c)     whether there is a trend of increasing gravity of alcohol consumption and driving. If so, this will be a significant factor in enhancing the sentence; and

(d)     whether there is a trend of increasing danger posed to the public with each repeat offence. As with the previous factor, where this is the case, it may further increase the uplift: Lee Shin Nan at [66].

48     In provisionally calibrating the actual fine and disqualification, the court will begin with the range prescribed by the applicable Alcohol Level Band. But these are only guidelines and it is entirely open to the court to shift to a lower or higher band if both factors, namely the actual amount of alcohol involved and the considerations pertaining to the repetition, point that way: Lee Shin Nan at [67].

49     In the present case, amongst other things, I considered that:

(a)     The Accused’s alcohol level was low. His alcohol level of not less than 81 milligrams of alcohol in 100 millilitres of blood slightly exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood.[note: 15]

(b)     He had one previous conviction for drink driving.[note: 16]

(c)     The interval between the previous conviction (August 2018) and the present offence (April 2022) was about 3 years and 8 months.[note: 17]

(d)     On 23 April 2022, at or about 12.35am, the Accused had been driving his motor car along South Canal road towards the direction of North Canal Road. He was stopped for checks by Traffic Police officers at a roadblock along South Canal Road towards the direction of North Canal Road.[note: 18]

50     In the circumstances, the fine and disqualification should be pegged at the lower end of Band 1, viz. a fine of $5,000 and 5 years’ driving disqualification for all vehicle classes.

(3)   Adjustment to account for aggravating and mitigating circumstances

51     The court should next consider the aggravating and mitigating circumstances of the offence and the offender and make any further adjustments to the provisional assessment of the fine and disqualification period: Lee Shin Nan at [57(c)].

52     The factors pertaining to the offender or the particular offence include:

(a)     degree of danger posed to the public (such as the circumstances of driving, the road conditions, the state of traffic and the location);

(b)     distance travelled;

(c)     speed of driving;

(d)     manner of driving;

(e)     reasons for driving;

(f)     whether the offender has pleaded guilty and/or shown remorse;

(g)     any other relevant antecedents not yet considered: Lee Shin Nan at [69].

53     First, I took into consideration the fact that the Accused had left the pub with a friend, whom he had intended to send home in his motor car, viz. as a passenger in his car.

54     The distance travelled was from Boat Quay to South Canal Road before he had been stopped at the roadblock.

55      Guilty plea. For the Sentencing Advisory Panel Guidelines for Guilty Pleas, as the Accused only pleaded guilty after the first day of trial, the applicable sentencing discount to be considered was up to a maximum of 5%.

56     In the present case, the Prosecution had already completed its trial preparation.[note: 19] The trial started on 15 August 2023 with a second day of trial on 22 January 2024. The Accused pleaded guilty on 22 August 2024, i.e. about one year after the trial had started.

57     That said, given that his plea of guilt saved some time and resources, he was afforded a sentencing discount of less than 5%.[note: 20]

58      Antecedents. The Accused’s driving record was not unblemished. Apart from his drink driving antecedent, he had 8 composition fines for speeding. He had composition fines for failing to conform to the red light, careless driving and failing to stop after an accident.

59     An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

60     In the present case, I placed little to no weight on his compounded offences.

61      Cooperation with the authorities. I gave due weight to the Accused’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

62     In the circumstances, the fine and disqualification at the lower end of Band 1, viz. a fine of $5,000 and 5 years’ driving disqualification for all vehicle classes were left unchanged.

(4)   Final adjustment

63     The court should separately consider what term of imprisonment is appropriate having regard to all the circumstances. A term of imprisonment is mandatory for repeat offenders and arises from the parliamentary intent to deter recalcitrant drink driving and to prevent accidents, injury and death that can needlessly arise from drink driving: Lee Shin Nan at [70].

64     As such, its length will be determined primarily by the need for deterrence (both general and specific) and the need to punish especially culpable behaviour (see Singapore Parliamentary Debates, Official Report (28 March 1990) vol 55 at cols 960–961, 964–965 and 974 (Prof S. Jayakumar (Minister for Home Affairs), Dr Arthur Beng Kian Lam, Mr Chng Hee Kok); Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423 at [14]): Lee Shin Nan at [70].

65     Where the aggravating factors considered at the previous stage warrant a custodial term, they should be considered again at this stage when assessing the term of imprisonment. Such factors include:

(a)     the manner and circumstances of driving and road conditions;

(b)     the nature and number of relevant antecedents;

(c)     the recency of antecedents; and

(d)     the actual and potential danger posed to others.

66     These appear to be the key factors that are relevant to deterrence (both general and specific) and to why imprisonment was made mandatory for this class of offenders: Lee Shin Nan at [70].

67     At this stage of the analysis, when considering the term of imprisonment, the court should categorise the offence in overall terms having regard to its overall gravity and the nature and all the circumstances of the offending and reoffending behaviour into three broad classes with the following indicative sentencing bands (Lee Shin Nan at [71]):

Class

Indicative Sentencing Band

Serious

1 – 6 months’ imprisonment

More Serious

6 – 12 months’ imprisonment

Most Serious

12 – 24 months’ imprisonment



68     Generally, if zero to two of the factors identified in Lee Shin Nan at [70] are present and operating at a relatively low level, the offence would fall into the first sentencing band, that is, the classification of a “serious” case. If there are two to three factors (or if there are fewer but these operate at a more pronounced level), the “more serious” sentencing band would apply. And if all factors are present (or if there are fewer factors but most of them are operating at a pronounced level), the offence would fall into the “most serious” sentencing band: Lee Shin Nan at [72].

69     The sentencing court should then take a final look at the sentence to assess whether the fine and disqualification order need to be adjusted, whether there is a basis and need to consider invoking the power to further enhance the punishment under s 67A, and whether the overall punishment is proportional and condign: Lee Shin Nan at [73].

70     In sum, the court will finally calibrate the appropriate imprisonment term having regard in particular to the need for deterrence and then finally review the sentence as a whole: Lee Shin Nan at [57(d)].

71     In Lee Shin Nan, the interval between the previous conviction (April 2012) and offence in question (June 2022) was more than 10 years and the offender had two previous convictions for drink driving. The initial indicative custodial sentence was 12 weeks’ imprisonment before being moderated downwards to 8 weeks’ imprisonment, after taking into account the long lapse of more than 10 years between the conviction in question and his previous conviction (Lee Shin Nan at [16] and [100].

72     The reason given by the offender in Lee Shin Nan for driving his car a short distance was that he had to make way for a car which he was blocking (Lee Shin Nan at [97]-[98]).

73     Our present case falls under the “serious” category. Amongst other things, I considered that the interval between the previous conviction (August 2018) and the present offence (April 2022) was about 3 years and 8 months (as compared to more than 10 years in Lee Shin Nan), the Accused had one previous conviction for drink driving, and he had left the pub with a friend, whom he had intended to send home in his motor car.

74     The Accused pleaded guilty about 1 year after the trial had started, and the Prosecution had already completed its trial preparation.[note: 21] That said, given that his plea of guilt saved some time and resources, he was afforded a sentencing discount of less than 5%.

75     The Accused’s alcohol level of not less than 81 milligrams of alcohol in 100 millilitres of blood slightly exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood.[note: 22]

76     All things considered, I was of the view that the term of imprisonment ought to be in the lower end of the sentencing range for a “serious” case, viz. about 6 to 7 weeks’ imprisonment.

77      Proportionality Principle. I kept in mind the proportionality principle in sentencing (Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [30]). Under the proportionality principle, the sentence to be imposed must not only bear a reasonable proportion to the maximum prescribed penalty, but also to the gravity of the offence committed (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [06.091]-[06.093]).

78      Sentence. All told, in the round, I sentenced the Accused to 6 weeks’ imprisonment, a fine of $5,000 in default 25 days’ imprisonment and 5 years’ driving disqualification for all vehicle classes.

Conclusion

79     The Accused was sentenced to 6 weeks’ imprisonment, a fine of $5,000 in default 25 days’ imprisonment and 5 years’ driving disqualification for all vehicle classes.

80     I was aware that my custodial sentence of 6 weeks’ imprisonment was higher than that sought by the Prosecution (viz. 4 to 5 weeks’ imprisonment). Ultimately, sentencing lies exclusively within the court’s prerogative: Saravanan Kuppusamy v Public Prosecutor [2016] 5 SLR 88 at [6]-[8], Janardana Jayasankarr v Public Prosecutor [2016] 4 SLR 1288 at [12] and CRH v Public Prosecutor [2024] SGCA 29 at [17(c)].

81     Where the penalty prescribed for an offence extends across a range, the question of where the offence falls within that range is squarely for the court’s determination. Therefore, while the Prosecution and Defence are expected to assist the court in this task, it is ultimately for the court to assess and determine what sentence would be just in the light of all the circumstances before it.

82     Just as the Defence’s submissions on sentence is not necessarily the lower limit of the sentence that a court may impose, the Prosecution’s submissions on sentence is not, and should not be regarded as, the upper limit of the sentence that may be meted out: Janardana Jayasankarr at [12].

83     I am grateful for the hard work and submissions of both sides.

[note: 1]SOF at [1].

[note: 2]SOF at [2].

[note: 3]SOF at [3].

[note: 4]SOF at [4].

[note: 5]SOF at [5].

[note: 6]SOF at [6].

[note: 7]SOF at [7].

[note: 8]SOF at [8].

[note: 9]SOF at [9].

[note: 10]SOF at [10].

[note: 11]SOF at [11].

[note: 12]SOF at [12].

[note: 13]Prosecution’s Address on Sentence at [1].

[note: 14]Mitigation Plea at [4].

[note: 15]SOF at [9].

[note: 16]SOF at [11].

[note: 17]SOF at [11].

[note: 18]SOF at [10].

[note: 19]Prosecution’s Address on Sentence at [4(c)].

[note: 20]Sentencing Advisory Panel Guidelines on Reduction in Sentences for Guilty Pleas at [9].

[note: 21]Prosecution’s Address on Sentence at [4(c)].

[note: 22]SOF at [9].

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Public Prosecutor v Lim Pang Boon Adrian Michael
[2024] SGMC 64

Case Number:Magistrate Arrest Court Nos. 900787 of 2022 and others, Magistrate's Appeals No. 9152 of 2024-01
Decision Date:06 September 2024
Tribunal/Court:Magistrate's Court
Coram: Ow Yong Tuck Leong
Counsel Name(s): DPP Eric Hu (Attorney-General's Chambers) for the Public Prosecutor; Mr Mohamed Arshad (Fernandez LLC) for the accused
Parties: Public Prosecutor — Lim Pang Boon Adrian Michael

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9152/2024/01.]

6 September 2024

District Judge Ow Yong Tuck Leong:

1       The accused, Lim Pang Boon Adrian Michael, a 48-year-old male, pleaded guilty to three proceeded charges and consented to one other charge being taken into consideration (“TIC”) for sentencing.

2       The three proceeded charges are:

(a)     First Charge MAC-900787-2022

… are charged that, you, on 9 June 2021 at or about 7.28 p.m. at (redacted) Building located at (redacted address), did commit criminal trespass, to wit, by entering into a female toilet cubicle at (redacted) of the said Building with intent to commit an offence of voyeurism, and you have thereby committed an offence punishable under Section 447 of the Penal Code (Chapter 224, 2008 Revised Edition).

(b)     Second Charge MAC-900788-2022

… are charged that you, on 9 June 2021 at or about 7.46 p.m. at the female toilet of (redacted) of (redacted) Building located at (redacted address), did attempt to use your mobile phone to record [(redacted) victim] doing a private act, to wit, relieving herself in the toilet, without her consent, knowing that she did not consent to you recording the act, and you have thereby committed an offence under Section 377BB(3) punishable under Section 377BB(7) read with Section 512(1) of the Penal Code (Cap 224, 2008 Rev Ed).

(c)     Third Charge MAC-900789-2022

… are charged that you, on 9 June 2021, at or about 7.56 p.m., at the basement carpark located at No. 105 Cecil Street, ‘The Octagon’ building, Singapore 069534, did cause hurt to one [(redacted) complainant] by doing an act so rashly as to endanger the personal safety of others, to wit, by driving your vehicle, a White Mercedes Benz bearing registration number SMP5866Y, towards the said complainant and hitting her on her right leg, and you have thereby committed an offence punishable under Section 337(a) of the Penal Code (Chapter 224, 2008 Revised Edition).

3       The TIC charge is:

MAC-900790-2022

… are charged that you, on 9 June 2021, at or about 7.56 p.m., at basement carpark located at No. 105 Cecil Street, The Octagon, Singapore 069534, did act so rashly as to endanger the personal safety of others, to wit, by driving your vehicle, a White Mercedes Benz bearing registration number SMP5866Y, towards one Muhammad Salahuddin Bin Shahibullah causing him to jump out of the way to avoid being hit by your vehicle, and you have thereby committed an offence punishable under Section 336(a) of the Penal Code (Chapter 224, 2008 Revised Edition).

4       I sentenced the accused to one month and three weeks’ imprisonment. The accused, being dissatisfied with the sentence has filed a notice of appeal against sentence. He is on bail pending the appeal. These are the grounds for the sentence imposed.

Statement of Facts

5       The accused admitted without qualification to the Statement of Facts (“SOF”) tendered by the Prosecution. I set out the SOF below:

1.    The accused is Lim Pang Boon Adrian Michael, Male, 48 years old, NRIC No: Sxxxx603D, Singapore Citizen. At the material time, he was working as a private hire car driver.

2.    The victim is (redacted), female, 32 years old, a Singapore Citizen.

3.    The complainant is (redacted), female, 38 years old, a Singapore Citizen.

4.    On 9 June 2021, at or about 8.47 p.m., the complainant called the Police stating: “earlier at about 7.30 pm to 8pm I saw a male Chinese inside the female toilet. He drove off in a car SMP5866Y. I am at the security control room to view the CCTV. I am scared that he might be still loitering in the building. I will wait for the police”. The incident location given is (redacted) Building.

5.    On 9 June 2021, at or about 7.28 p.m., the accused entered (redacted) Building located at (redacted address). The accused then went up to (redacted) of the building before going straight into the female toilet. He then entered the centre cubicle and locked the door. He admitted to the Police that he waited in the cubicle for any female to walk into the adjacent cubicle(s) so that he could take a photo of them while they were relieving themselves. He decided to target that toilet because he knew that there would be ladies frequenting a dating agency on that level.

6.    At or about 7.46 p.m., the victim left her office and entered the female toilet and had used the last cubicle. She was relieving herself, which was a private act. While relieving herself, the victim looked up and saw that there was a mobile phone with its camera facing downwards over the top of the cubicle wall from the adjacent toilet cubicle.

7.    Upon seeing the mobile phone, she was alarmed and distressed. She immediately left the toilet and went back to her office to seek assistance from the complainant. Together with the complainant, they went back to the female toilet. However, there was no one inside the adjacent toilet cubicle. Both the victim and the complainant then heard that there was someone washing hands inside the male toilet.

8.    In actual fact, the accused was in the adjacent toilet cubicle in the female toilet at the material time. He committed criminal trespass by entering a female toilet cubicle of (redacted) Building with intent to commit an offence of voyeurism, i.e., to take voyeuristic images of women relieving themselves in the toilet. He has committed an offence punishable under Section 447 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (MAC-900787-2022). He admitted to the Police that he went to the cubicle because he had an urge that day to take photographs of women using the toilet and relieving themselves. The victim was in the toilet cubicle to his right. He peeked over the top of the cubicle wall and saw her seated on the toilet bowl. He also saw her exposed buttocks.

9.    The accused then used his mobile phone and switched on the camera function and intended to use the phone to take photographs of the victim’s naked buttocks and of her relieving herself. He stretched his hand over the cubicle wall while holding the phone and tilted the phone with the camera facing downwards towards the victim. He knew that the victim did not and would not consent to him using his phone to take photographs of her naked buttocks and of her relieving herself. He tried to take a photograph of the victim. However, before he could do so, the victim looked up and saw the phone. Hence, he quickly retracted his hand with the phone. He thus did not manage to take a photograph of her. After the victim left the female toilet, he went to the male toilet. He was washing his hands as he heard two females calling him to come out from the male toilet.

10.    When the accused stepped out of the male toilet, the complainant and the victim confronted him and asked him to show his photo gallery on his phone, but he refused. The accused then took off and ran down the staircase of the building and the complainant and the victim gave chase. The victim then went down to Level 1 to alert the building security officer.

11.    The accused fled via the rear exit towards ‘The Octagon’ building located at No. 105 Cecil Street, Singapore 069534. Both the victim and the complainant continued to give chase. Upon arrival at Basement 1 carpark of ‘The Octagon’ building, the accused went into his car, which was a white Mercedes Benz vehicle bearing registration number SMP5866Y. He started his car engine and was about to drive off from the parking lot.

12.    However, the complainant stood in front of the accused’s vehicle in a bid to prevent him from leaving. Despite that, the accused continued to drive his vehicle towards the complainant and the vehicle hit her on her right leg. Despite this, the accused did not stop, and the car continued to move forward. As a result, the complainant’s body was pushed along the front of the car and the car hit her left leg as well. The complainant attempted to stop the accused by opening the driver’s door. However, the accused continued to drive forward and reached his hand out of the car to close the driver’s door. The accused caused hurt to the complainant by doing an act so rashly as to endanger the personal safety of others and he has committed an offence punishable under Section 337(a) of the Penal Code (MAC-900789-2022).

13.    The accused then drove his vehicle off by dashing through the parking barrier, breaking it before speeding off from the scene. The security officer, one Muhammad Salahuddin Bin Shahibulla, had to jump out of the way to avoid being hit by the car. The events stated above at [12]-[13] were captured on CCTV footage.

14.    The complainant later sought medical treatment at the Department of Emergency Medicine at Singapore General Hospital at about 4.50 p.m. on 10 June 2021. The victim had sustained an 8 x 3 cm ovoid irregular bruise on the right lateral upper thigh, 1 x 1 cm round bruise on the left upper lateral thigh, 3 x 2 cm irregular bruise over the right-hand knuckles and neck sprain. She was discharged and granted 5 days of medical leave from 10 June 2021 to 14 June 2021.

15.    The accused attempted to using his mobile phone with the intention of recording the victim doing a private act, i.e., relieving herself, without her consent, knowing that she did not consent to him recording the act. There were no photographs or videos taken of the victim found in the accused’s phone, after he was arrested. He has committed an offence under Section 377BB(3) punishable under Section 377BB(7) read with Section 512(1) of the Penal Code (MAC-900788-2022).

16.    The following properties were seized from the accused:

a.    One black Lenovo laptop without battery, and charger;

b.    One Samsung Galaxy J6 phone with black phone casing; and

c.    One white Bermudas and one blue T-shirt.

17.    The accused stands charged accordingly.

Antecedents

6       The accused has no record of any previous conviction.

Prosecution’s Address on Sentence

7       The Prosecution submitted that the accused had surreptitiously trespassed into a cubicle in a female toilet. The accused saw the victim relieve herself and attempted to take a photo of her relieving herself. When confronted, the accused took flight and drove his car in a rash manner which caused hurt to the complainant. The Prosecution submitted that a global sentence of at least two months’ imprisonment was appropriate, comprising the following individual sentences for the three proceeded charges:

(a)     At least two weeks’ imprisonment for the First Charge (concurrent). The position was supported by two reported precedents, PP v Ang Wei Sheng [2016] SGMC 28 (“Ang Wei Sheng”), and PP v Ong Wai Hoong [2011] SGDC 251 (“Ong Wai Hoong”);

(b)     At least one month’s imprisonment for the Second Charge (consecutive), referring to the offences in Nicholas Tan Siew Chye v PP [2023] 4 SLR 1223 (“Nicholas Tan”); and

(c)     At least one month’s imprisonment for the Third Charge (consecutive). The Prosecution highlighted the following precedents for the court’s consideration, PP v Bibianna Lim Poh Suan [2020] SGMC 14 (“Bibianna”), PP v Mazlan bin Ujod (“Mazlan”) (SC-902455-2021, unreported), PP v Kesavan Pillai Govindan [2017] SGHC 44 (“Kesavan”), and PP v Ng Poh Kok [2009] SGDC 376 (“Ng Poh Kok”).

Mitigation

8       The Defence recommended a global sentence of three weeks’ imprisonment. The Defence submitted that the accused had pleaded guilty. He was a first-time offender. The accused suffers from voyeuristic disorder, although there was no contributory link between the disorder and the accused’s actions on 9 June 2021, his actions were a depiction of his voyeuristic tendency. The accused has not reoffended for a period of more than three years. The accused compensated the following parties:

(a)     $2,500 to the (redacted) victim;

(b)     $2,500 to the (redacted) complainant and offered to reimburse her medical expenses;

(c)     $1,000 to Mr Muhammad Salahuddin Bin Shahibullah; and

(d)     $1,000 to the management of the (redacted) Building.

9       In relation to the First Charge, Defence relied on PP v Jonathan Chua Wei Cong [2023] SGMC 101 (“Jonathan Chua”). The offender claimed trial to one charge (s 509 of the Penal Code) of insulting the modesty of the victim by moving his phone over the top of the door of the cubicle she was showering in and one charge (s 447 of the Penal Code) of committing criminal trespass to enter the female toilet.

10     The Defence submitted that the accused’s trespass was similar to the offender in Jonathan Chua, where the offender was sentenced to two weeks’ imprisonment after claiming trial. However, given the accused’s plea of guilt, the restitution made, as well as the fact that the accused never actually recorded a video of the victim showering, the Defence submitted a sentence of one week’s imprisonment for the First Charge (concurrent).

11     In relation to the Second Charge, the Defence agreed that Nicholas Tan was instructive. The Defence submitted that the first offence in Nicholas Tan was more useful for the court to consider as the offender had recorded an upskirt video of the victim with her private part covered. The offender deleted the video from his phone. The offender was sentenced to one week’s imprisonment. The Defence submitted a similar sentence of one week’s imprisonment for the Second Charge (consecutive).

12     As to the Third Charge, the Defence highlighted that the physical injuries suffered by the victim in the unreported case of Mazlan appeared to be more serious, the victim was given a longer hospitalisation leave, the offender’s car had hit the victim three times, the accused compensated the victim and also offered to reimburse her medical expenses. For the aforesaid reasons, as well as, on account of the totality principle, the Defence submitted a sentence of two weeks’ imprisonment for the Third Charge (consecutive).

Court’s Decision

13     First Charge - the prescribed punishment for the criminal trespass offence under s 447 of the Penal Code (Chapter 224, 2008 Revised Edition) (“PC”) is imprisonment for a term which may extend to three months, or with fine which may extend to $1,500, or with both.

14     In determining the appropriate sentence to be imposed for the First Charge, I considered the following factors:

(a)     The purpose of the intrusion was to commit an offence of voyeurism. The offence was of moderate gravity taking into account the intrinsic seriousness of the offence and the maximum punishment under s 377BB(7) PC.

(b)     The offence was premeditated and the period of intrusion was not insignificant. The accused purposely chose the female toilet in a specific building based on his knowledge that there would be females frequenting a dating agency on that floor. The accused hid in the centre cubicle to wait for a female to use the adjacent toilets. The victim entered the toilet about 15 minutes later (see [5] and [6] of SOF). The accused peeked over the top of the cubicle wall to see the victim before stretching his mobile phone over the cubicle wall towards the victim (see [8] and [9] of SOF).

15     In my view, the custodial threshold was clearly crossed. An appropriate sentence would be about three weeks’ imprisonment on the present facts if the accused had claimed trial. I considered the mitigating factors that the accused was remorseful, untraced, co-operated with the authorities and compensated the victim. After applying a reduction of 30% (Stage 1) under the Sentencing Advisory Panel Guidelines on Reduction in Sentences for Guilty Pleas (“PG Guidelines”), I sentenced the accused to two weeks’ imprisonment.

16     The sentence would not be inconsistent with the outcomes in PP v Ang Wei Sheng [2016] SGMC 28 (“Ang Wei Sheng”) and PP v Ong Wai Hoong [2011] SGDC 251 (“Ong Wai Hoong”):

(a)     In Ang Wei Sheng, the offender, a first offender who had pleaded guilty, was sentenced to four weeks’ imprisonment for s 447 PC charge for trespass into the female shower room of a swimming complex to video women showering. The court considered that it was not a one-off offence but part of a pattern of criminality as there were two similar s 447 PC charges pertaining to two other occasions taken into consideration in sentencing (see Ang Wei Sheng at [41] to [42]). The appeal lapsed.

(b)     In Ong Wai Hoong, the offender with two previous similar convictions under s 447 PC charge, claimed trial to one count of s 447 PC charge and was sentenced to six weeks’ imprisonment. The appeal against conviction and sentence was dismissed.

17     In my view, the present case can be distinguished from the pattern of criminality or repeat offending found in Ang Wei Sheng and Ong Wai Hoong, where a longer imprisonment sentence was justified, taking into account the need for general and specific deterrence.

18     I did not accept the Defence’s submission relying on Jonathan Chua to impose a lower sentence. In my view, there was less premeditation and less culpability in Jonathan Chua for the criminal trespass charge. The offender possibly formed the intention to commit the offence when he first walked past the female toilet and knew that someone was showering inside (see Jonathan Chua at [163(c)]). The intrusion was briefer in Jonathan Chua. When the victim in Jonathan Chua heard the main toilet door opening, she turned to face the shower cubicle door, and in less than two seconds, she saw the mobile phone coming up over the cubicle door and shouted out. Upon her shouting, the mobile phone immediately came down (see Jonathan Chua at [21] and [22]). The appeal against conviction and sentence has since been dismissed. Given the differences in culpability between the two offenders, I am of the view that the sentence of two weeks’ imprisonment was appropriate on the present facts although the offender in Jonathon Chua had claimed trial.

19     Both parties referred the court to Nicholas Tan, to determine the appropriate sentence to be imposed for the Second Charge. The sentencing matrix in Nicholas Tan applies the full sentencing range punishable under s 377BB(7) PC. The maximum custodial punishment under s 377BB(7) PC for the voyeurism offence is two years’ imprisonment. The Prosecution submitted for a sentence of at least one month’s imprisonment while the Defence recommended one week’s imprisonment. The Second Charge and the SOF referred to S 512(1) PC, which does not apply in the present case as the voyeurism offence is not punishable by death or imprisonment for life. The correct reference should be s 512(2) PC where the punishment for attempted voyeurism is the same as is prescribed for voyeurism. It did not matter that the wrong provision was referred to in the present case as I applied the sentencing framework in Nicholas Tan.

20     In Nicholas Tan, the High Court formulated a sentencing framework applicable to the offence under s 377BB(4) PC punishable under s 377BB(7) PC framework as follows:

(a)     At Step 1, the court considers the offence-specific factors to identify the level of harm caused by the offence and the level of culpability of the offender.

(b)     At Steps 2 and 3, the court identifies the applicable sentencing range in the sentencing matrix before identifying the starting point within that range:

Sentencing Matrix

 

Harm

 

Low

Moderate

High

Culpability

Low

Fine or up to 4 months’ imprisonment

4 to 8 months’ imprisonment

8 to 12 months’ imprisonment with caning

 

Moderate

4 to 8 months’ imprisonment

8 to 12 months’ imprisonment with caning

12 to 18 months’ imprisonment with caning

 

High

8 to 12 months’ imprisonment with caning

12 to 18 months’ imprisonment with caning

18 to 24 months’ imprisonment with caning



(c)     At Step 4, the court considers the offender-specific aggravating and mitigating factors.

(d)     At Step 5, the court makes further adjustments in keeping with the totality principle where the offender is convicted of multiple charges.

21     The High Court observed that there is no reason why the same sentencing framework should not apply to the other offences in s 377BB PC punishable under s 377BB(7) PC (see Nicholas Tan at [62]).

22     I applied Steps 1 to 4 of the sentencing framework in the present case. At Step 1 of the sentencing framework, as to harm, there was invasion of the victim’s privacy as the accused saw her from a top-down perspective, seated on the toilet bowl and saw the victim partially undressed with her buttocks exposed. The accused intended to use his mobile phone camera to take photographs of the victim’s naked buttocks and of her relieving herself (see [8] and [9] of SOF). The victim saw the accused’s mobile phone. The victim was aware that she had been a victim of voyeurism, and this caused her to suffer emotional distress (see [7] of SOF). Such harm brings both general and specific deterrence to the fore (see Nicholas Tan at [44]). As to culpability, the accused knew that he did not have consent from the victim. While the accused’s modus operandi was unsophisticated, the commission of the offence involved a degree of furtiveness, planning and premeditation on the part of the accused (see [5] of SOF), which warrants the imposition of a deterrent sentence (see Nicholas Tan at [46]). While no photos of the victim were taken by the accused, an offender who intended to record the victim (but failed to do so) is more culpable than an offender who merely intended to observe the victim (see Nicholas Tan at [72]).

23     At Steps 2 and 3 of the sentencing framework, I placed the offence in the low harm and low culpability category. The applicable indicative sentencing range is a fine or up to four months’ imprisonment, on the basis of a first offender who is convicted after trial. A starting point of about five weeks’ imprisonment would be appropriate, considering the offence-specific factors above. At Step 4 of the sentencing framework, I considered the mitigating factors in [15] above. After applying a reduction of 30% (Stage 1) under the PG Guidelines, I sentenced the accused to three weeks’ imprisonment.

24     I disagreed with the Defence’s submission for a one week’s imprisonment based on the first offence in Nicholas Tan. In my view, the present case was more egregious than the first offence in Nicholas Tan. First, the accused saw the victim’s exposed buttocks compared to the offender in Nicholas Tan who saw the victim’s covered bottom. Second, the victim had partially undressed to relieve herself when she saw the accused’s phone. This would have exacerbated the level of distress she experienced from the invasion of privacy, causing her to feel more traumatised than the upskirt victim in Nicholas Tan. Third, the commission of the offence involved more planning and premeditation than in Nicholas Tan, where the offender had chanced upon the victim and followed her to take an upskirt video. A sentence of three weeks’ imprisonment was just and fair.

25     I did not accept the Defence’s submission to reduce the sentence on account of the accused’s voyeuristic disorder. The IMH clarification report dated 25 March 2024 stated that there was no contributory link to the offences and his ability to appreciate the nature of the offences was not impaired. The IMH report also said that the accused “was aware of the moral and wrongfulness of his actions. His actions were planned and coordinated. He purposefully chose to carry out his actions in the specific building, well aware of the secluded toilets. There was no loss of self-control and restraint.” Mitigating weight should only be given to psychiatric conditions if there exists a causal or contributory link (see Ng So Kuen Connie v PP [2003] 3 SLR(R) 178 at [58]).

26     Third Charge - the prescribed punishment for an offence under s 337(a) PC (causing hurt by a rash act which endangers human life or the personal safety of others) is imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

27     I considered the precedents for the s 337(a) PC offences referred to by the Prosecution for the Third Charge:

(a)     In Bibianna, the victim, the offender’s older brother, tried to stop the offender from driving off after a family altercation. The offender claimed trial to a s 337(a) PC charge under the “endanger human life” limb. The victim tried to open the car door and he knocked on the car window before standing in front of the car. The offender drove the car forward when the victim was standing in front of the car, causing him to take evasive action by jumping onto the bonnet of the car and roll off. The victim suffered tenderness over the right knee and he was prescribed oral analgesia (see Bibianna at [175]). The offender was untraced. The sentence of three weeks’ imprisonment and 12 months’ disqualification for all classes of vehicles was upheld on appeal.

(b)     In Ng Poh Kok, the offender pleaded guilty to a rash act under the “endanger human life” limb. The offender was driving the car with another person to collect duty unpaid cigarettes. The offender knocked down the victim, a customs officer. The victim suffered from tenderness over his chest and shoulder. He also had abrasions over his right elbow and one finger. The court considered the seriousness of the offence which involved causing hurt to a customs officer while driving rashly to escape from the law and sentenced the accused to nine months’ imprisonment (see Ng Poh Kok at [12]). The appeal against the sentence was dismissed.

(c)     In Mazlan, the offender was charged under the “endanger personal safety” limb. The victim was a pedestrian. She stood in front of the van to stop the offender from driving off because she thought he was drunk. The offender was in fact not drunk and told the victim that he was in a rush to leave (see [6] of Mazlan SOF). The van hit the victim who suffered a left knee contusion. The contusion was managed conservatively (see Mazlan at [7] of Mazlan SOF). The offender was sentenced to one month’s imprisonment and 12 months’ disqualification for all classes of vehicles. There was no appeal.

(d)     In Kesavan, the accused faced a charge under the “endanger personal safety” limb. The victim, a Certis Cisco auxiliary police officer, stood in front of the offender’s car to take down the licence plate number of the car so as to issue a summons for a parking offence. The offender drove off before the summons was issued. The car hit the victim. The victim suffered a left shin contusion and was prescribed oral analgesics for the pain and swelling (see Kesavan at [13]). The High Court found the offender had ample opportunity to realise that the victim was directly in front of his car, and it would have been dangerous to drive forward in such circumstances because of the high probability of injuring the victim. The offender did not care that the victim was in front of his car and obstructing his way (see Kesavan at [55] to [57]). The High Court allowed the Prosecution’s appeal against acquittal. The offender was sentenced to nine weeks’ imprisonment and 15 months’ disqualification for all classes of vehicles.

28     In my view, the factual matrix in the present case was closer to Kesavan. First, the accused faced a charge with the same degree of rashness under the “endanger personal safety” limb of s 337(a) PC. Second, the accused caused hurt while trying to evade the complainant after his wrongful activity was detected. Third, the injuries in both cases were managed conservatively.

29     In determining the appropriate sentence to be imposed for the Third Charge, I considered the following factors:

(a)     The accused exhibited a callous disregard for the safety of others. The complainant, like the victim in Kesavan, was standing in front of the car (see [12] of SOF). The accused would have known it would be dangerous to drive forward because of the high probability of injuring the complainant.

(b)     The complainant suffered bruises and a neck sprain (see [14] of SOF) and had flashbacks interrupting her sleep (see SGH Medical report dated 22 June 2021). In my view, the multiple contusions and interrupted sleep suffered by the complainant were just as serious if not more serious than the injuries suffered by the victims in Kesavan (left shin contusion) and Mazlan (left knee contusion) who was given a longer hospitalisation leave.

(c)     Similar to Kesavan, the accused had caused hurt after his wrongful activity was detected. The accused used his car as a weapon, to intimidate the complainant to move out of the way or risk suffering personal injury.

(d)     The accused did not stop after hitting the complainant. He then drove his vehicle off by dashing through the parking barrier, breaking it before speeding off from the scene. The security officer had to jump out of the way to avoid being hit by the car. There should be an uplift to the sentence to take into account the TIC charge of a similar nature (see PP v UI [2008] 4 SLR(R) 500 at [38]).

(e)     A longer sentence should be imposed in cases where offenders commit rash driving offences causing hurt to a police officer or an enforcement officer. The High Court has reiterated that “it is of vital importance to ensure that police and other officers who are at the frontline of law enforcement are adequately protected in the exercise of their duties. These officers frequently deal with unreasonable and uncooperative individuals and are often at the receiving end of verbal abuse and resistance, as well as retaliatory acts of force and aggression. The sentence of the court must therefore effectively convey the message that such actions are completely unacceptable.” (see Aw Soy Tee v PP [2020] SGHC 114 at [79]). A downward calibration of the sentence in Kesavan is appropriate where the victim is not an enforcement officer (see Bibianna at [192] and [218]).

30     An appropriate sentence would be about six weeks’ imprisonment on the present facts if the accused had claimed trial. I considered the mitigating factors in [15] above. After applying a reduction of 30% (Stage 1) under the PG Guidelines, I sentenced the accused to one month’s imprisonment. The lower sentence here would not be inconsistent with Kesavan as the victim was not an enforcement officer. I disagreed with the Defence’s submission to impose a lower sentence than in Mazlan as the accused was more culpable than the offender in Mazlan. The Prosecution did not seek any disqualification of the accused’s driving licence.

31     The court must order the sentences for at least two of the offences to run consecutively under s 307(1) of the Criminal Procedure Code 2010. I ordered the sentences for the Second Charge and the Third Charge to run consecutively, given that these are distinct offences committed against two separate victims. The global sentence of one month and three weeks’ imprisonment accords with the totality principle and the one-transaction rule. The sentence is not crushing and no further adjustment is required (see PP v Raveen Balakrishnan [2018] 5 SLR 799 at [52] and [73]).

Conclusion

32     The dominant sentencing position is general deterrence for the reasons given above. The sentence imposed is just and appropriate to send a clear message to other like-minded persons that such conduct is completely unacceptable.

"},{"tags":["Criminal Law – Offences - Sexual Penetration of Minor","Criminal Procedure and Sentencing – Sentencing – Sentencing Framework"],"date":"2024-08-27","court":"District Court","case-number":"DAC-901125-2020 & Anor, Magistrate's Appeal No. MA-9084-2024-01","title":"Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim","citation":"[2024] SGDC 221","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32084-SSP.xml","counsel":["DPP Joseph Gwee (Attorney-General's Chambers) for the Prosecution","Mr K Jayakumar Naidu (M/s Jay Law Corporation) for the Accused"],"timestamp":"2024-09-12T16:00:00Z[GMT]","coram":"Chay Yuen Fatt","html":"Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim

Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim
[2024] SGDC 221

Case Number:DAC-901125-2020 & Anor, Magistrate's Appeal No. MA-9084-2024-01
Decision Date:27 August 2024
Tribunal/Court:District Court
Coram: Chay Yuen Fatt
Counsel Name(s): DPP Joseph Gwee (Attorney-General's Chambers) for the Prosecution; Mr K Jayakumar Naidu (M/s Jay Law Corporation) for the Accused
Parties: Public Prosecutor — Muhammad Mustaffa Kamal Bin Salim

Criminal Law – Offences - Sexual Penetration of Minor

Criminal Procedure and Sentencing – Sentencing – Sentencing Framework

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9084/2024/01.]

27 August 2024

District Judge Chay Yuen Fatt:

Introduction

1       The accused was a 34-year-old male Singaporean. He was represented by counsel. He faced two charges for offences of sexual penetration of a minor (“SPOM”) who was a girl below 14 years of age (“victim”). The accused denied committing the acts and claimed trial to the charges. He was 23 years old when he committed the said offences under s 376A(1)(a) and punishable under s 376A(3) and punishable under s 376A(3) of the Penal Code (Cap 224, Rev Ed 2008)(“Penal Code”). The first offence was committed when the victim was 12 years old. The second offence occurred when she was 13 years old. Two other similar charges were stood down at the commencement of the trial.

2       At the conclusion of the trial, the accused was convicted of both SPOM charges and sentenced to a total of 16 years' imprisonment and 10 strokes of the cane. The stood down charges were then withdrawn. I provided the parties with my brief reasons for the conviction and indicated that full grounds will be furnished if necessary. The accused filed an appeal against both the conviction and sentence. The sentence of imprisonment and caning has been stayed. The accused is on bail pending this appeal.

3       I now provide my full grounds for the conviction and sentence.

The Charges

4       For ease of reference, I set both SPOM charges in full as follows:

1st Charge (DAC-901125-2020)

You…are charged that you, sometime between mid-2013 and 20 October 2013, in vehicle bearing licence plate SJY2591Y, at a parking lot located at 255 Dairy Farm Road, Singapore, did penetrate with your penis the vagina of one victim (female / then 12 years old, DOB: xxx 2000), and you have thereby committed an offence punishable under Section 376A(1)(a) read with Section 376A(3) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

2nd Charge (DAC-901128-2020)

You…are charged that you, sometime between November 2013 and mid-2014, in vehicle bearing registration number SJY2591Y, Singapore, did penetrate with your penis the mouth of one victim (female / then 13 years old, DOB: xxx 2000), and you have thereby committed an offence punishable under Section 376A(1)(a) read with Section 376A(3) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

Prosecution’s Case

5       The Prosecution’s case and its evidence, where material and relevant, are summarised from its submissions.[note: 1]

6       The Prosecution’s case is that the accused had committed both offences against the victim. The first offence involved penile-vaginal penetration and was committed sometime between mid-2013 and 20 October 2013 when the victim was only 12 years old. The offence was committed inside a car SJY 2591Y (“the car”) which was parked at the Heavy Vehicle Carpark located at 255 Diary Farm Road.

7       The second offence of penile-oral penetration or fellatio was committed between November 2013 and mid-2014 when the victim was 13 years old. The offence was committed whilst the accused was driving the car.

Undisputed facts

8       I set out the following facts that were not in dispute.

9       The victim[note: 2] was born on 21 October 2000. She was 12 years old at the time of the first offence in 2013 and 13 years old at the time of the second offence in 2014. It was not disputed that the accused was aware of her age at all material times. It was also not in dispute that there was at least a 10-year age gap between the accused and the victim.

10     The families of the accused and the victim became acquainted because the families were involved in the same multi-level marketing business called ‘4Life’. Both families met weekly and interacted with other 4Life business associates. That was how the accused got to know the victim. The respective families remained on good terms until around 2014 to 2015 when there was a fallout due to a business-related dispute. The families drifted apart thereafter.

11     The offences came to light only in 2018 in the course of a spat between the victim and the accused’s then fiancée, DW2 Erratiqah binte Erwan (“Erratiqah”). The spat took place on the social media platform Instagram (“IG”). The victim was using her younger sister’s IG account and there was an exchange of IG messages[note: 3] between her and Erratiqah. The victim’s mother[note: 4] had access to the victim’s sister’s IG account and found out that the victim had had sex with the accused.

12     The victim lodged a police report[note: 5] in respect of the offences on 15 November 2018. The victim was examined at KK Women’s and Children’s Hospital by PW1 Dr Yip Swee Lin (“Dr Yip”). Dr Yip prepared a medical report in relation to the examination which was tendered in evidence.[note: 6]

13     A statement was recorded from the accused by way of a Video Recorded Interview (“VRI”) on 19 November 2018 from 5.00pm to 6.02pm. The VRI was conducted by the investigation officer, PW6 ASP Liao Chengyu (“ASP Liao”), and ASP Muhammad Fadzridin Fadzil Bin Amir. The CD containing the VRI[note: 7] and the transcript[note: 8] were also tendered in evidence.

14     The police took photographs of (i) the car wherein the offences were committed, and (ii) the Heavy Vehicle Carpark at 255 Diary Farm Road where the car was parked at the time of the first offence. These photographs were admitted in evidence.[note: 9]

15     The car in question was a black Mercedes Benz E250 which was registered in the name of the accused’s sister, DW3 Haffiyenti Binte Salim (“Haffiyenti”).

The Defence

16     The accused elected to give evidence. His defence is summarised in the Defence’s closing submission.[note: 10] He denied being in any relationship with the victim.[note: 11] It was categorically put to the victim by the Defence that the accused was not in any relationship with the victim.[note: 12] He only went on family outings with her family but he did not go on dates with the victim alone. He did not drive the car with the victim alone.[note: 13] Therefore, he was never alone with the victim and did not have sexual relations with her in any form.

Findings and Reasons for Conviction

17     I set out below my findings and the reasons for convicting the accused on both SPOM charges.

Relevant Law

Elements of the SPOM charges

18     It was not in dispute that the essential elements of the SPOM charges comprise the actus reus and the mens rea:

(a)     the actus reus – the accused used his penis to penetrate the victim’s vagina (first charge) and mouth (second charge); and

(b)     the mens rea – (i) the accused intended the said acts and (ii) he knew that the victim was below 14 years of age.

19     If the actus reus is proved, there is no question that the mens rea in (b)(i) would naturally follow and therefore also be proved. The mens rea in (b)(ii), that he knew the victim’s age at all relevant times, was accepted by the accused.

Assessing credibility of victim

20     It is trite law that in a case of a sexual offence, in the absence of other corroborative evidence, the victim’s testimony must be “unusually convincing” in order to form the sole basis for a conviction: Public Prosecutor v GCK and another matter [2020] 1 SLR 486 (at [87]-[88]); AOF v Public Prosecutor [2012] 3 SLR 34 (“AOF”).

21     The Court of Appeal (“CA”) in AOF stated (at [111] – [115]):

111    It is well-established that in a case where no other evidence is available, a complainant’s testimony can constitute proof beyond reasonable doubt (see s 136 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”)) – but only when it is so “unusually convincing” as to overcome any doubts that might arise from the lack of corroboration (see generally the decision of this court in PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) d601 at [37]–[44] (“Liton”) and the Singapore High Court decision of XP v PP [2008] 4 SLR(R) 686 at [27]–[36] (“XP”)).

112    The need for “fine-tooth comb” scrutiny in so far as allegations of sexual abuse are concerned is particularly acute, “given both the ease with which allegations of sexual assault may be fabricated and the concomitant difficulty of rebutting such allegations” (see the Singapore High Court decision of Chng Yew Chin v PP [2006] 4 SLR(R) 124 at [33], cited with approval in Liton at [37]–[38]).

113    In XP, V K Rajah JA observed (at [31]) that the requirement that the alleged victim’s evidence ought to be “unusually convincing”:

… does nothing, however, to change the ultimate rule that the Prosecution must prove its case beyond a reasonable doubt, but it does suggest how the evidential Gordian knot may be untied if proof is to be found solely from the complainant’s testimony against the Appellant.

…

115    Moving from the level of scrutiny to the elements of what an unusually convincing testimony consists of, it is clear that a witness’s testimony may only be found to be “unusually convincing” by weighing the demeanour of the witness alongside both the internal and external consistencies found in the witness’ testimony.

[emphasis added]

22     A complainant’s testimony would be considered “unusually convincing” only if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused. A trial judge evaluates whether this standard is met by weighing the demeanour of the complainant alongside both the internal and external consistencies found in the complainant’s testimony: PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 at [39].

23     Further, when considering whether the complainant’s evidence is “unusually convincing”, the court must “assess the complainant’s testimony against that of the accused”, such that the complainant is found to be “unusually convincing” to the extent that “the court can safely say his account is to be unreservedly preferred over that of another”: XP v Public Prosecutor [2008] 4 SLR(R) 686 at [34].

24     For completeness, the Prosecution also referred to the High Court’s observations in PP v Tan En Jie Norvan [2022] SGHC 166 at [65]-[66] as follows:[note: 14]

(a)     the “unusually convincing” standard is the threshold for the complainant’s testimony to be preferred over the accused’s evidence where the case is one that boils down to one’s person’s words against another’s.

(b)     The emphasis is on the sufficiency of the complainant’s testimony, and the threshold would be met only if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused.

(c)     A witness’s testimony may only be found to be “unusually convincing” by weighing the demeanour of the witness alongside both the internal and external consistencies found in the witness’s testimony.

(d)     Finally, even if the witness’s testimony is found to be “unusually convincing”, it does not automatically lead to a guilty verdict and does not dispense with the need for the court to consider the other evidence and the factual circumstances peculiar to each case, as well as the need to assess the complainant’s testimony against that of the accused’s.

25     As to what constitutes corroborative evidence, the CA in AOF provided the following invaluable guidance at [173]:

It is settled law that where the evidence of the complainant is not “unusually convincing”, an accused’s conviction is unsafe unless there is some corroboration of the complainant’s story. This requirement was laid down in Federation of Malaya High Court decision of Public Prosecutor v Mardai [1950] MLJ 33 where Spencer-Wilkinson J declared (at 33), as follows:

Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent complaint by complainant herself provided that the statement implicated the Appellant and was made at the first reasonable opportunity after the commission of the offence.

The EA did not, at its inception, provide a definition of corroboration and still does not do so. In Liton ([111] supra), this court (at [43]) preferred Spencer-Wilkinson J’s more liberal approach to corroboration (“liberal corroboration”) as opposed to the stricter traditional common law definition laid down in The King v Baskerville [1916] 2 KB 658 at 667 (“Baskerville”) of independent evidence implicating the Appellant in a material particular (“Baskerville corroboration”):

[I]t is clear that the Baskerville standard … does not apply in its strict form in Singapore since Yong CJ, in Tang Kin Seng ([37] supra), advocated a liberal approach in determining whether a particular piece of evidence can amount to corroboration. This is so, notwithstanding Yong CJ’s apparent allusion to the whole or part of the Baskerville standard in B v PP [2003] 1 SLR(R) 400 (at [27]); Lee Kwang Peng ([38] supra) at [71]; and Kwan Peng Hong ([37] supra) at [37] as being ‘essential’ in nature. In our view, to adopt a stringent definition of what constitutes corroborative evidence goes against the liberal approach which Yong CJ himself alluded to as a broad principle of law in the other cases. In Kwan Peng Hong (at [36]), Yong CJ held that our courts ‘have left behind a technical and inflexible approach to corroboration and its definition’ and alluded to similar pronouncements in Tang Kin Seng (at [53]–[68]) and Soh Yang Tick ([37] supra at [43]). The principle of law which emerges from these cases is that the local approach to locating corroborative evidence is liberal, thus ensuring that the trial judge has the necessary flexibility to treat relevant evidence as corroborative. What is important is the substance as well as the relevance of the evidence, and whether it is supportive or confirmative of the weak evidence which it is meant to corroborate.

(emphasis added)

Only Issue in Dispute

26     The accused denied having any sexual intercourse or sexual relations with the victim whatsoever. Therefore, the actus reus of the offences was the only material issue in dispute.

Victim was Unusually Convincing

27     The victim was already 21 years old and an adult when she took the stand as a prosecution witness to testify against the accused. She was currently a student at the Singapore Polytechnic. A shielding measure was provided for her to testify in court and in the presence of the accused, pursuant to s 281A of the Criminal Procedure Code 2010 (“CPC”).[note: 15]

28     I heard her testimony which was both internally and externally consistent in all aspects that were material to the charges. Her demeanour was calm and natural and her testimony was absolutely credible. She provided her evidence in an objective and logical manner. Her testimony was both measured and fluent. She was completely objective and factual and did not embellish or exaggerate any detail. She gave the impression that she had nothing to hide. She did not attempt to vilify the accused. Overall, I found the victim’s evidence to be cogent and unusually convincing. In addition, her testimony was also corroborated by other evidence which I will elaborate below.

29     If there were any inconsistencies, including those pointed out by the Defence, these were immaterial and attributable to normal human fallibility in memory due to the passage of time but which did not detract from the overall cogency of the totality of her testimony. In other words, the inconsistencies were entirely minor or acceptable.

Existing relationship

30     I believed the victim’s evidence that she was in a boy-girl relationship with the accused. Initially, they were just friends but they both entered into a relationship sometime in June 2013 which was a few months after they were introduced to each other.[note: 16] In fact, it was her parents who first introduced the accused to her because they wanted her to be with him as they thought he was a “very nice” and “very religious” person.[note: 17] The victim explained how the relationship started:

I just remember us going out as a family, uh, quite often like, for family gathering then he would be there, and then, we started, uh, I think, then, we started texting each other.[note: 18]

They went out for movies at night and they became boyfriend and girlfriend.[note: 19]

31     However, the victim told the court that the accused’s parents did not approve of the accused having any relationship with the victim because of the age gap. Therefore, the accused and the victim had to hide their relationship from the accused’s parents.[note: 20] The victim further testified that the accused would lie to his brothers to hide the fact that he was going out with her.[note: 21] In fact, the accused would be beaten up by his brother for going out with the victim.[note: 22]

32     The fact that they were dating was known and corroborated by her parents’ testimony. Whenever he wanted to go out with the victim alone, he would ask the victim’s mother’s permission. He would text the victim’s mother.[note: 23] When her mother gave her permission, the accused would drive and pick up the victim in his car.[note: 24] The mother would see them out of the flat and house and even look from the kitchen window to see them drive off safely.[note: 25] They went out once or twice a week.[note: 26]

33     The victim’s mother testified that the accused and the victim were close and that they always went out together.[note: 27] She testified that the victim had in fact revealed that the accused had expressed his interest to be the victim’s girlfriend. However, the mother reminded the victim of their age gap. Her mother did not know if they in fact became boyfriend and girlfriend. However, she was aware that they continued to go out together.[note: 28] The victim’s father also corroborated the victim’s account and testified that he knew that the two of them would go out about once a week.[note: 29] The accused would pick up the victim in his car i.e. the black Mercedes.[note: 30]

34     Their relationship lasted almost a year before they broke up in the middle of 2014.[note: 31] They broke up because she was embarrassed that he was much older. Furthermore, his family did not approve of their relationship with and they had to hide it from them.[note: 32]

35     I found the victim’s evidence of their relationship to be completely credible and supported by her parents’ evidence. When considered alongside the accused’s bare denial of any relationship, I preferred and believed the victim’s version.

First offence – vaginal penetration

36     Given the fact and context of their relationship, I believed the victim’s account of the first offence. I agreed with the Prosecution’s submission that she provided a textured and sufficiently detailed recollection of the first (and also the second) offence.[note: 33]

37     The victim was able to anchor the first offence in time. She remembered that that the first offence happened in 2013 before she turned 13 years old.[note: 34] It was her first experience of sexual intercourse.

38     She testified that the accused drove her to a heavy vehicle carpark which was established to be at 255 Dairy Farm Road.[note: 35] He had purchased a box of condoms at the petrol kiosk along the way. She testified that the accused started kissing her before removing her clothes. He also removed his clothes. He then climbed over to the passenger seat and got on top of her. He had sexual intercourse with her.[note: 36] The sexual intercourse lasted less than half an hour. She was quite candid with Counsel that she was unable to remember all the details. For example, she remembered the accused putting on the condom and climbing over and on top of her,[note: 37] but cannot recall if he had ejaculated into the condom or onto a tissue.[note: 38] She recalled that after the sexual act, the accused took her home where he cleaned up his private part in the toilet of her flat.[note: 39] She testified that she had not had sex with anyone before this incident.[note: 40]

Second offence – oral penetration

39     In respect of the second offence, they were also in the accused’s car whilst he was driving. He had unbuckled his belt and unzipped his pants.[note: 41] He then put his hand on the back of the victim’s head and pulled her head towards him so that the victim could perform fellatio on him.[note: 42] He continued to place his hand on the back of her head while she fellated him for less than 10 minutes. The victim recalled that this incident happened during the day when she was not in school. Therefore, it likely occurred during the school holidays in the later half of 2013.[note: 43]

Corroborative Evidence

40     The victim’s evidence in court was broadly coherent and consistent, both internally and externally. I found that her testimony was further corroborated by two other aspects of the Prosecution’s evidence: (i) her account of events to the examining gynaecologist; and (ii) IG messages that were exchanged between the victim and Erratiqah (accused’s then fiancée).

(i)   Medical Examination

41     In the course of police investigations, the victim was examined in December 2018 by Dr Yip, a gynaecologist at the hospital.[note: 44] Dr Yip set out the victim’s account of events in her report[note: 45]. She cannot recall the victim’s exact account and was only relying on what was stated in her report.

42     I considered and found that the victim’s testimony was materially consistent with her account of events as set out in Dr Yip’s report.[note: 46] The victim identified the accused. She told Dr Yip that the accused and her were inside a car parked at a carpark at night. The accused then showed her a condom saying it was a surprise. He undressed himself and her and put on the condom. He moved to the passenger seat and got on top of her. He kissed her and had penile-vaginal intercourse with her. She told him to stop because she felt pain but he continued. After the intercourse, he sent her home.

43     The victim did not mention the incident of fellatio to Dr Yip. However, I accepted her explanation, as being reasonable, that Dr Yip’s clinical examination and questions related to the sexual intercourse and the frequency of coitus. Therefore, it did not occur to the victim to talk about the act of oral penetration.[note: 47]

(ii)   Instagram Messages

44     The accused met his present wife, Erratiqah, in May 2016 and entered into a relationship with her sometime in July 2016.[note: 48] The sexual relationship between the accused and the victim came to light when there was an argument between Erratiqah and the victim by way of IG messages. The IG messages were admitted in evidence.[note: 49] There was no dispute as to the admissibility of these messages. The IG messages suggested that Erratiqah was fully cognisant of the past relationship between the accused and the victim and that they had sex in the past.

45     The IG messages were dated 15 November 2018. The context of IG messages was such. The victim’s sister received a message from Erratiqah one day accusing the former of cyber-stalking. The victim’s sister then consulted the victim on how to respond to Erratiqah’s accusation. The victim replied to Erratiqah using her sister’s IG account.[note: 50] Nothing turns on the allegation of cyber-stalking but that is the reason which started the IG exchange between the victim and Erratiqah.

46     During their exchange of IG messages, the victim revealed that “she [victim] had done everything with Mus [accused].” The victim asked if Erratiqah could bear to sleep with accused now knowing that the victim had already “used” him. Erratiqah then shot back saying:

Mus is a guy so I have no problems if he was already used by anyone. But you girl, would your boyfriend or future husband have any appetite for you who had been sondol1 by other men hahahahaha

1(Translator’s note: Literally it means ‘to be butted’ or ‘pushed with the head’. However, in this context, it probably means ‘to be penetrated’.)

47     Looking at Erratiqah’s above reply, it showed that she already knew that the accused has had sex with the victim.

48     The victim’s mother got to know about the messages because she had access to the victim’s sister’s IG account. She then questioned the victim who then decided to admit to her parents that she had sex with the accused.[note: 51]

49     Erratiqah acknowledged under cross-examination by the learned DPP that the IG messages between the victim and her was sexual in nature. She conceded that she understood the victim to be telling her that she had sex with the accused. Her response to the victim was to tell the victim that being a woman, she had more to lose in terms of reputation than the accused.[note: 52]

50     I found that Erratiqah already knew about the past sexual relationship between the accused and the victim. She conceded that despite what the victim told her, she did not question the accused. She explained that she knew it did not happen and that the accused would have nothing to tell her.[note: 53] I did not accept this explanation which was entirely circular. The only logical inference that I could draw was that she already knew about the accused’s sexual relationship with the victim and hence there was no need to confront the accused. I fully agreed with the Prosecution’s submission that it would have been most natural for Erratiqah to question the accused, with whom she was already engaged at that time, as to what the victim had claimed. The fact that Erratiqah was not even surprised and did not question the accused showed that she already knew that the victim had told the truth.

No Motive or Reason to Lie

51     It is trite law that the burden lies on the accused to show that the victim has a motive to falsely implicate him and that mere allegations are insufficient: AOF v PP [2012] 3 SLR 34 at [215]. I found that the Defence has not discharged this burden.

52     I was satisfied that the victim had neither motive nor reason to make such allegations against the accused. I also did not find that the victim harboured any grudge or was biased against the accused in any way. Their relationship had ended in 2014. There was no suggestion that the break-up was anything but mutual and amicable. Since then, they have both moved on with their lives. It was not in dispute that the victim had little to no communication with the accused who went to meet Erratiqah. The Defence took pains to question the victim as to her subsequent relationships. Counsel also showed her photographs which she took with other boys.

53     There was absolutely no reason why the victim would make up such allegations more than four years after her relationship ended with the accused. As between the victim and Erratiqah, it was not disputed that they have never met each other, even though they had an online argument in 2016. However, the present allegations were not brought up then. The allegations only came up during a second argument in 2018 as captured in the IG messages in P4. In fact, it was Erratiqah who started the spat when she sent a message to the victim’s sister and that led to the victim responding to Erratiqah through the sister’s account. It was essentially an online spat between an ex-girlfriend and the current one. It may well be that the victim was trying to one-up Erratiqah by revealing that she (the victim) had already had sex with accused. However, I found that she was telling the truth albeit in a boastful manner. She was merely stating it as a fact that she had already “used” the accused. It was Erratiqah who tried to turn that fact against the victim saying that being a woman, it was not something to be proud of.

54     I rejected any suggestion that the victim had lodged the police report out of revenge or spite. If she did so because of any animosity with Erratiqah, she could and would have done so in 2016 but that did not happen. On the contrary, I accepted the victim’s evidence that she did not reveal her sexual activity with the accused to anyone because she was “embarrassed it happened”.[note: 54] She only told her mother her sexual relationship with the accused because her mother questioned her.[note: 55] If the allegations were untrue, she could have easily come clean. The fact that she had to admit to her mother that she had sex with the accused, which could not have been easy and which would certainly incur the wrath of her parents, showed that she was indeed telling the truth. The further fact that she went ahead to lodge a police report was probative evidence that she spoke the truth.

55     In summary, I found that the victim had moved on with her life after her relationship with the accused had ended. It was only because of the exchange of messages between Erratiqah and the victim that prompted the victim to reveal that the accused has had sex with her. She had not made up the allegations. The messages were eventually read by her mother which led to the discovery of the offences.

Defence Rejected

56     The accused’s defence was one of a bare denial of the charges. The offences could not have taken place because he denied being in any relationship with the victim.[note: 56] In respect of the second offence, the accused said the act was not possible.[note: 57]

57     I fully agreed with the Prosecution’s submission that the accused’s testimony was internally inconsistent.[note: 58] On the one hand, he said that he “seldom” went to Natasha’s house and that their interactions were confined to the 4Life events.[note: 59] He then conceded that he had gone out once or twice alone with the victim for movies.[note: 60] His evidence was externally inconsistent with the evidence of the victim and her parents and belied the many objective photographs[note: 61] taken of him with the victim and her family. The accused tried too hard to play down how close he was to the victim and her family. I disbelieved his testimony and rejected his denial of a relationship with the victim. I found that he clearly lied when he said he was merely friends with the victim. The Prosecution also could not help but point out that the accused made a Freudian slip in his VRI statement when he referred to the victim as his “ex”. I rejected his explanation in court that by “ex”, he meant “ex-friend” and not “ex-girlfriend”. That would not be the common or conventional meaning of the term “ex” in the Singapore context.

58     I also noted that the very relationship which he vehemently denied at trial was ironically raised and relied upon by the Defence in his mitigation plea to argue for a lighter sentence.[note: 62] The accused was therefore choosing to either use or deny the relationship with the victim as it suited him.

59     The Prosecution also rightly pointed out that the accused’s evidence was vague as regards who drove the car when he went on those two movie dates with the victim.[note: 63] He claimed that it was his brother who had driven him in the car.[note: 64] When pressed for the identity of this brother, the accused could not say which of his five brothers had driven him.[note: 65] He further claimed that he could not remember because each occasion was different.[note: 66] The accused had therefore conceded that he had gone out on dates with the victim on at least two occasions. This revelation contradicted his Defence that he was merely friends with the victim.

60     The question whether they were in a relationship was central to the accused’s defence of the charges. Given my finding that they were in fact in a relationship, the accused’s defence was therefore severely undermined.

61     As regards the accused’s assertion that the alleged act in respect of the second offence was not possible, he has not shown to this court how the alleged act could not have been carried out. On the contrary, I believed the victim and accepted her evidence that she did fellate the accused while he was driving. I certainly found that the alleged act was humanly possible. The question that is often discussed is not whether it can be done physically but whether it is safe or legal for the driver to be receiving oral sex when driving.[note: 67] There have been cases reported in other jurisdictions of drivers getting into traffic accidents for such conduct, quite apart from the issue of the legality of the act itself.[note: 68] There is no question that the physical act of oral sex in a moving car is possible.

Accused’s evidence inconsistent with VRI statement

62     The Prosecution also rightly pointed out that the accused’s testimony was incongruous with his VRI statement in material aspects.

63     Thus, he stated in his VRI statement that they (referring to the victim and him) “sometimes take public transport, sometimes drive” when they went out together. He also stated in his statement that he would go to “fetch” the victim when they went out alone. This version was very different from his court testimony that his brother (never mind which one) would drive them in the car. He tried very hard in court to give the impression that his brother would chaperone them when they went out. Even then, the accused was vague as to who drove the car when he went out with the victim. When pressed by the learned DPP if he was asserting that he did not drive the car when he went out with the victim, the accused could only say that he could not recall.[note: 69]

64     In any event, Counsel for the Defence did not put to the victim that the accused did not drive the car at the material time. The rule in Browne v Dunn (1893) 6 R 67 as affirmed by the Court of Appeal in Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [48] is therefore engaged. Accordingly, the Defence is precluded from asserting that it was the accused’s brother who was driving the car on the material dates of the offences.

Defence witnesses

65     There were three witnesses for the Defence, apart from the accused. They were Erratiqah (accused’s wife), Haffiyenti[note: 70] (his older sister), and Amirul[note: 71] (his younger brother).

66     I did not find that their evidence furthered the accused’s defence. On the contrary, as elaborated above, I found that Erratiqah’s evidence showed that she knew about the sexual relations between the accused and the victim. Accordingly, her evidence corroborated the victim’s allegations against the accused.

67     Haffiyenti’s evidence did not assist the Defence either. The car in question was purchased by her father and registered in her name. The car was sold in 2019 because the family had financial difficulties. She testified that her father permitted both Amirul and the accused to drive the car.[note: 72] She added that Amirul would be the one driving most of the time and that the accused would take over if Amirul was tired. She also said the accused would not be driving alone. However, this was in the context of driving the car from Malaysia to Singapore to attend the 4Life events. Her evidence did not go so far as to say that the accused never borrowed the car for other purposes. Her evidence was simply that she was not aware if the accused had taken the car on his own.[note: 73] It was not in dispute that the accused’s parents had more than one car.[note: 74] Haffiyenti did not drive this car because she had her own car.[note: 75] At least one other sibling has his own car.[note: 76] Therefore, it was not the case that the accused could never have had the exclusive use of the material car at any point in time. In fact, it was Haffiyenti’s evidence that this car was used by the accused and Amirul.[note: 77]

68     Amirul’s evidence regarding the use of the car was also largely focused on driving between Malaysia and Singapore.[note: 78] His evidence was that he did most of the driving except when he was tired.

69     Haffiyenti also testified that the accused and the victim were friends but not in a relationship. However, she testified that both families got along very well and she knew that the victim’s parents had wanted the accused to be part of their family.[note: 79] I found this to be more consistent with the victim’s (and her parents’) testimony that the accused was, in fact, dating the victim. Even if Haffiyenti was not aware that the two were dating, that was because the couple were hiding their relationship from the accused’s family because his parents did not approve of their relationship. It was not in dispute that the accused’s parents and most of the accused’s siblings (including Haffiyenti and Amirul) lived in Johor[note: 80] and would come to Singapore weekly to attend the 4Life events.[note: 81] It was also not in dispute that the accused would stay at one of his brother’s (Fadzli) flat in Jurong West occasionally.[note: 82] Therefore, it would not be very difficult for the accused to hide his relationship with the victim from his family, including Haffiyenti.

70     For the same reasons, it would also explain why Amirul testified that the accused was not having a relationship with the victim. Considering that Amirul was also not residing in Singapore, he may not know what the accused was up to when the latter stayed in Singapore.

71     I was also alive to the possibility that Amirul knew about the relationship but was not telling the truth in court to protect his brother. Either way, I found his evidence that there was no relationship between the accused and the victim to be doubtful or unreliable.

72     His evidence of what he knew of the victim did not cohere with what the accused was prepared to accept. For example, Amirul claimed to have heard of the victim and her family but had no interactions with them.[note: 83] This clearly flew in the face of the undisputed evidence that both families were close, at least before the families eventually drifted apart. Amirul also claimed he was not aware that the accused had gone out with the victim’s family. He was certainly unaware that the accused had gone out with the victim.[note: 84] This contradicted even the accused’s limited concession that he had gone out twice with the victim on movie dates and that it was Amirul who had chaperoned them as the driver. Both brothers clearly could not get their story straight in court.

Conclusion - Conviction

73     I believed the victim’s testimony which I found to be internally and externally consistent, unusually convincing and fully corroborated by other evidence.

74     I did not find that she had any motive or reason to make up false allegations against the accused, especially regarding events which had taken place some years ago.

75     I preferred her evidence to that of the accused, who was untruthful and had plainly lied about his relationship with the victim. It was obvious that the accused had every reason and motive to lie about their relationship which was the basis and which formed the context of the offences. His denial of their underlying relationship was completely inconsistent with the totality of the all the evidence.

76     Having carefully considered all the evidence and the respective submissions from the parties, I found that the prosecution has proved its case against the accused beyond reasonable doubt. Accordingly, the accused was convicted of the charges.

Sentence

77     The accused was sentenced on both charges as follow:

Charge No.

Offence

Sentence

DAC-901125-2020

S 376A(1)(a) punishable under s 376A(3) Penal Code (Cap 224, Rev Ed 2008)

Ten (10) years' imprisonment and six (6) strokes of the cane.

DAC-901128-2020

S 376A(1)(a) punishable under s 376A(3) Penal Code (Cap 224, Rev Ed 2008)

Six (6) years' imprisonment and four (4) strokes of the cane.

Further Order:

Sentences in DAC-901125-2020 and DAC-901128-2020 to run consecutively.

Total Sentence:

Sixteen (16) years' imprisonment and ten (10) strokes of the cane.



78     Two similar charges that were stood down at the commencement of the trial were withdrawn by the Prosecution after the accused was sentenced.[note: 85]

Prescribed punishment

79     Both charges were for offences of SPOM under s 376A(1)(a) and punishable under s 376A(3) of the Penal Code. The offences were committed against the victim who was below 14 years of age. The prescribed punishment for both offences is as follows:

(3) Whoever commits an offence under this section against a person (B) who is under 14 years of age shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

80     The Prosecution also reminded the court that pursuant to s 303(2) and 306(4) of the CPC, the maximum sentence that a District Court can impose for each charge is 10 years imprisonment with 12 strokes of the cane, and that the aggregate sentence cannot exceed twice of this limit. In other words, the upper limit in respect of the total sentence is 20 years’ imprisonment and 24 strokes of the cane.

Respective Sentencing Positions

81     The sentencing positions of both parties were indeed very wide apart.

Prosecution’s sentencing position

82     The Prosecution submitted that the accused be sentenced to 17 years’ imprisonment and 10 strokes of the cane as follows:[note: 86]

(a)     1st Charge (DAC-901125-2020): 10 years’ imprisonment and 6 strokes of the cane; consecutively with

(b)     2nd Charge (DAC-901128-2020): 7 years’ imprisonment and 4 strokes of the cane.

Defence’s sentencing position

83     On the other hand, the Defence initially submitted for a sentence of only 12 months’ imprisonment with no caning for each charge to run consecutively, adding up to 24 months’ imprisonment.[note: 87] Counsel subsequently revised the Defence’s sentencing position upwards to 4 years’ imprisonment without caning[note: 88]:

(a)     1st Charge (DAC-901125-2020): 3 years’ imprisonment; consecutively with

(b)     2nd Charge (DAC-901128-2020): 1 year’s imprisonment.

Sentencing Considerations

Applicable sentencing frameworks

84     The Prosecution cited the decision of the High Court in CJH v Public Prosecutor [2022] SGHC 303 (“CJH”) which ultimately guided me in the approach to be taken in sentencing the accused for both his SPOM charges.[note: 89] The High Court in CJH applied the sentencing framework laid down by the Court of Appeal (“CA”) in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) to the first charge involving penile-vaginal penetration and the sentencing framework devised by the CA in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) to the second charge involving penile-oral penetration.

85     In applying the respective frameworks, the Court in CJH referred to Sundaresh Menon CJ’s decision in ABC v Public Prosecutor [2022] SGHC 244 (“ABC”) where Menon CJ held (at [45]) that that the Pram Nair framework “should apply to all offences that are to be sentenced under s 376(3) and also those under s 376A(3)”, subject to his provisional view that offences of penile-vaginal penetration prosecuted under s 376A(1)(a) instead of rape should be dealt with by applying the Terence Ng framework.

1st Offence: Penile-Vaginal SPOM

86     In CJH, the offender (then 15 years old) had engaged in penile-vaginal intercourse with the victim (then 9 years old). The Court held at [96] that the Terence Ng sentencing framework was applicable to the offence of penile-vaginal penetration. The Court then applied the Terence Ng sentencing framework and agreed with the Prosecution that the charge for penile-vaginal penetration in that case fell within Band 2 of the Terence Ng framework but calibrated the indicative sentence downwards on account of his plea of guilt and his rehabilitative prospects given that he was a relatively youthful offender who was 20 years old at the time of the proceedings.[note: 90] The Court sentenced the accused to 10 years’ imprisonment and 8 strokes of the cane in respect of the charge for penile-vaginal intercourse. The sentence was upheld by the CA in CJH v Public Prosecutor [2023] SGCA 19 (“CJH (CA)”).

87     The sentencing framework in Terence Ng is for “contested cases”[note: 91] and applies to offences of rape, including the offence of statutory rape under s 375(1)(b) read with s 375(2) of the Penal Code. The offence of statutory rape is the same offence as the present offence under s 376A(1)(a) read with s 376A(3) of the Penal Code (i.e. the first charge) insofar as the act under s 376A(1)(a) is one of penile-vaginal penetration. The prescribed punishment for both offences is the same.

88     Accordingly, I set out the Terence Ng framework as follows:

Band 1: 10 to 13 years’ imprisonment, six strokes of the cane;

Band 2: 13–17 years’ imprisonment and 12 strokes of the cane; and

Band 3: 17–20 years’ imprisonment and 18 strokes of the cane.

The application of the Terence Ng framework is to take place in two steps.[note: 92] The first step requires the sentencing court to consider the offence-specific factors and decide which band the offence in question belonged to. In the second step, the sentencing court would further identify where within that range the offence fell in order to derive an indicative starting sentence.

89     Band 1 comprised cases at the lower end of the spectrum of seriousness and attracted sentences of 10 to 13 years’ imprisonment and six strokes of the cane. Given the nature and circumstances of the first charge, low level of harm involved and the absence of the offender-specific aggravating factors that would push the case into the upper bands, I agreed with the Prosecution’s submission that the offence would fall within Band 1 of the Terence Ng framework.

90     I considered that the following factors were relevant to sentencing within Band 1:

(a)     The victim was a very young student who was then 12 years old at the time of the offence;

(b)     The accused was an adult and there was a 10-year age difference between the accused and the victim. The accused would have the advantage of a decade of maturity and life experiences over the victim. Accordingly, their relationship was very much asymmetric.

(c)     There was no consent legally speaking. It was emphasised in Terence Ng at [44(f)] that the policy of the law is that a female under 14 cannot consent to sexual activity. Thus, any man who uses his penis to penetrate the vagina of such a female commits rape, irrespective of whether the victim assents to the act. Even as regards factual consent, given the asymmetric nature of their relationship by virtue of their huge age difference, the accused had exerted some degree of pressure on the victim to have sex with him. He had driven her to a deserted carpark in the night and had bought condoms beforehand without her knowledge. He had intended and planned to have sexual intercourse with the victim but the victim was given no opportunity to even mentally prepare herself. She was not entirely comfortable with the act and the evidence was that she did in fact tell the accused to stop.[note: 93] It was also the first time that the victim’s had sexual intercourse.[note: 94] She was not experienced sexually at all compared to the much older accused.

(d)     There was some degree of abuse of trust in that the accused had to ask the victim’s parents for permission to take the victim out on a date. The victim’s parents had trusted the accused and did not and would not have agreed to the accused having sex with their daughter. As observed in Terence Ng at [44(b)], when an offender commits the offence in circumstances where trust is abused, there is a “dual wrong” in that not only has he committed a serious crime, he has also violated the trust placed in him in this case by the victim’s parents.

91     This last factor was an offence-specific aggravating factor which would situate this offence at the very least in the middle range of Band 1 of the Terence Ng framework. In respect of statutory rape cases, it was held in Terence Ng that such cases in which the victim consents and there are no further notable aggravating factors (such as an abuse of position or evidence of particular vulnerability over and above the age of the victim) should fall in the upper band of Band 1 with an indicative starting point of 12 years’ imprisonment. Band 1 also prescribes six strokes of the cane: Terence Ng at [47(a)].

92     Thus, the appropriate indicative imprisonment term would be at least 11.5 years’ imprisonment if not 12 years’ imprisonment. In addition, the victim had testified that there were other instances of sexual intercourse i.e., about twice a month in the same car.[note: 95] This was yet another aggravating factor which would have pushed the indicative sentence to beyond the baseline of 10 years’ imprisonment.

93     There were no mitigating factors operating in favour of the accused. The CA in Terence Ng (citing Public Prosecutor v AOM [2011] 2 SLR 1057 at [34]) stated clearly at [45(b)] that the fact that a victim consented to intercourse was not a mitigating factor save in “exceptional” cases, e.g., where the offender and the victim were of the same or similar age at the time the offence was committed. It was plainly not the case here.

94     More importantly, the accused had decided to claim trial to the charges. In so doing, he did not spare the victim of the ordeal and embarrassment of having to testify in court. The victim was also subjected to the cross-examination by his Counsel and had to refute the Defence’s allegations that she had made up the allegations.

95     I am, however, limited by s 303(2) of the CPC to imposing not more than 10 years’ imprisonment in respect of any charge. Accordingly, the accused was sentenced to 10 years’ imprisonment and 6 strokes of the cane in respect of the first charge.

2nd Offence: Penile-Oral SPOM

96     The High Court in CJH also had to deal with an act of vaginal-oral penetration in the third charge against the offender in that case. The Court applied the Pram Nair sentencing framework when considering the appropriate sentence for the offence and found that the offence fell within at least the middle range of Band 2 of the Pram Nair framework but calibrated the indicative sentence downwards to 8 years and 4 strokes for the same reasons as for the offence of penile-vaginal penetration.[note: 96]

97     The sentencing framework in Pram Nair (“Pram Nair framework”) at [158]-[159] was modified from the Terence Ng framework to apply to offences of sexual assault by penetration, other than penile-vaginal penetration:

Band 1: 7-10 years’ imprisonment and four strokes of the cane;

Band 2: 10-15 years’ imprisonment and eight strokes of the cane; and

Band 3: 15 to 20 years’ imprisonment and 12 strokes of the cane

Band 1 would comprise of cases with no offence-specific aggravating factors or where the factor(s) are present to a very limited extent and therefore should have limited impact on the sentence.

98     In the present case, I repeat the same sentencing factors that were considered above in respect of the first charge, except that the victim was a year older when the second offences of fellatio was committed. In addition, I also considered that the accused had used some force to commit the offence in that the victim testified that the accused put his hand on the back of her head and pulled her head over to the driver’s side and downwards to perform fellatio for him for about 10 minutes. The victim said she felt uncomfortable pushed his hand away so that she could return to her seated position.[note: 97] I agreed with the Prosecution’s submission that while this would not constitute “actual or threatened violence”, it was also very different from a verbal instruction to perform fellation as was the case in CJH.

99     All considered, I agreed with the Prosecution’s submission that the second offence fell within Band 1 of the Pram Nair framework which attracts an imprisonment term of 7 to 10 years, with 4 strokes of the cane.

100    The Prosecution submitted for a sentence of 7 years’ imprisonment, with 4 strokes of the cane, which lies at the lowest end of Band 1.[note: 98] I would not disagree with the proposed sentence, given that it is already at the lowest end of the lowest band. As with the first offence, I found no mitigating factors which would warrant a reduction of this indicated sentence. In CJH, the High Court had originally sentenced the offender to 8 years’ imprisonment and 4 strokes of the cane for the offence of fellatio. This was reduced on appeal to 6 years’ imprisonment and 4 strokes of the cane, but only on account of principles of totality. That case was more aggravating only because the degree of abuse of trust was higher in that the offender and the victim were siblings. However, the offender in CJH was much younger than the present accused both when the offence was committed (17 years old) and when he was sentenced (20 years old). Furthermore, the offender in CJH was contrite in that he pleaded guilty to his charges unlike the present accused who decided to contest his charges. On balance, I considered that the Prosecution’s submission for 7 years’ imprisonment and 4 strokes of the cane for the present second charge was condign and justified.

Defence’s Precedents

101    In his further written mitigation plea, the Defence submitted that the accused ought to be sentenced to similar sentences as imposed in like cases around 2020 coinciding with the time he was charged. The Defence referred to a table of precedents in support of their submission.[note: 99]

102    I rejected Counsel’s submission because there was no logical or legal basis for the argument. A similar submission was made before me in Public Prosecutor v Jayaraman A/L Sankaran [2023] SGDC 202. In that case, the Defence also argued that the accused ought to be sentenced in accordance with the applicable sentencing framework at the time he was charged because by the time he was convicted of the charge under the Workplace Safety and Health Act (Chapter 354A), the previous sentencing framework in Nurun Novi Saydur Rahman v Public Prosecutor [2019] 3 SLR 431 had been overruled and replaced with a new framework in Mao Xuezhong v Public Prosecutor and another appeal [2020] SGHC 99. I sentenced the accused by applying the new sentencing framework rather than the previous sentencing framework. The sentence was affirmed on appeal.[note: 100]

103    I noted that all but one of the precedents cited by the Defence are ‘plead guilty’ cases. The sentences imposed in those precedents would therefore be discounted sentences. In any event, I agreed with the Prosecution’s submission that Menon CJ had prospectively overruled all the cases decided prior to ABC which had not applied the Pram Nair framework in respect of sexual offences with penetration, other than penile-vaginal penetration. I agreed with the Prosecution’s observation that accordingly, I should disregard all the lower court precedents cited by the Defence. I would also derive limited assistance in respect of the sentences imposed in High Court decisions[note: 101] that were decided prior to ABC as these precedents would have to be considered in that context and with that caveat.

Aggregate Sentence and Totality

104    In the present case, it was common ground between the parties, and quite rightly so, that the imprisonment sentences should run consecutively. This was because as a general rule, an offender who has committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [41]. In the present case, the two offences may have involved the same victim but were completely separate acts committed on quite separate occasions. I considered the two offences to be distinct and unrelated.

105    Nonetheless, the Prosecution accepted that in the present case, there is room for calibration of the sentences on account of the totality principle, but left the degree of the calibration to the Court’s discretion.[note: 102] Having said that, the Prosecution also submitted that the sentences sought in respect of the two charges already lie at the lowest end of the respective applicable sentencing frameworks, and that there were no compelling reasons warranting a further reduction of the global sentence.[note: 103]

106    I was, however, guided by the approach in CJH (CA) where the CA considered that the offender was only 20 years old at the time of his sentence and the aggregate sentence of 18 years’ imprisonment was therefore a crushing one for the offender as it represented almost his whole life up to that point. With that observation, the CA reduced the imprisonment term for the 3rd charge of fellatio from 8 years to 6 years’ imprisonment. In the present case, the accused was 34 years old at the time of sentence. The indicative aggregate sentence of 17 years’ imprisonment would constitute half of his whole life, unlike the case in CJH. Accordingly, I calibrated the imprisonment sentence for the second charge downwards by one year to 6 years’ imprisonment.

107    I finally considered that the adjusted aggregate sentence of 16 years’ imprisonment and 10 strokes of the cane, even though severe, was not crushing but is in keeping with his future prospects given his present relatively young age: Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 at [57].

Conclusion - Sentence

108    Given all the circumstances of the present case and considering the accused’s overall culpability and lack of contrition, the final aggregate sentence of 16 years’ imprisonment and 10 strokes of the cane was consistent with the applicable sentencing frameworks and therefore appropriate and justified.

[note: 1]Prosecution’s Closing Submission dated 1 December 2023 (“PCS”).

[note: 2]PW3.

[note: 3]P4.

[note: 4]PW5.

[note: 5]P3.

[note: 6]P1.

[note: 7]P8.

[note: 8]P8T.

[note: 9]P2 and P5 respectively.

[note: 10]Defendant’s Submissions dated 28 December 2023 (“DCS”) at [6]-[8].

[note: 11]NEs, Day 6, Pg 4, Line 2.

[note: 12]NEs, Day 2, Pg 62, Line 24 to 26.

[note: 13]NEs, Day 6, Pg 5, Lines 3 to 14.

[note: 14]PCS at [6].

[note: 15]Notes of Evidence (“NEs”), Day 2, Pg 4, Line 3 to 11.

[note: 16]NEs, Day 2, Pg 56, Line 14 to 18

[note: 17]NEs, Day 2, Pg 5, Line 14 to 21.

[note: 18]Nes, Day 2, Pg 6, Line 13 to 16.

[note: 19]NEs, Day 2, Pg 5, Line 21 to 24.

[note: 20]NEs, Day 2, Pg 61, Line 14 to 18.

[note: 21]NEs, Day 2, Pg 61, Line 20 to 21.

[note: 22]NEs, Day 2, Pg 61, Line 22 to 23.

[note: 23]NEs, Day 2, Ps 12, Line 14 to 15.

[note: 24]NEs, Day 2, Pg 12, Line 10 to NEs, Day 2, Pg 13, Line 22

[note: 25]NEs, Day 4, Pg 18, Line 27 to NEs, Day 4, Pg 19, Line 21

[note: 26]NEs, Day 4, Pg 19, Line 24 to NEs, Day 4, Pg 20, Line 14

[note: 27]NEs, Day 4, Pg 22, Line 5 to 26

[note: 28]NEs, Day 4, Pg 24, Line 12

[note: 29]NEs, Day 3, Pg 53, Line 5.

[note: 30]NEs, Day 3, Pg 54, Line 1 to 21.

[note: 31]NEs, Day 2, Pg 16, Line 4 to 7.

[note: 32]NEs, Day 2, Pg 16, Line 10 to 14,

[note: 33]PCS at [16].

[note: 34]NEs, Day 2, Pg 14, Line 8.

[note: 35]Photographs in P2 and P5.

[note: 36]NEs, Day 2, Pg 33, Line 19 to NEs, Day 2, Pg 35, Line 27

[note: 37]NEs, Day 2, Pg 92, Lines 22 to 24.

[note: 38]NEs, Day 2, Pg 97, Line 22, to NEs, Day 2, Pg 98, Line 9

[note: 39]NEs, Day 2, Pg 93, Lines 20 to 28.

[note: 40]NEs, Day 2, Pg 93, Lines 11 to 13.

[note: 41]NEs, Day 3, Pg 25, Line 16, to Day 3, Pg 28, Line 8.

[note: 42]NEs, Day 3, Pg 23, Lines 14 to 32.

[note: 43]NEs, Day 3, Pg 24, Lines 1 to 13

[note: 44]PW1.

[note: 45]P1.

[note: 46]At [3].

[note: 47]NEs, Day 3, Pg 21, Line 19 to Day 3, Pg 22, Line 18

[note: 48]NEs, Day 8, Pg 4, Lines 13 to 23

[note: 49]P4.

[note: 50]NEs, Day , Pg, Line 4 to 10.

[note: 51]NEs, Day 2, Pg 17, Line 27 to 31.

[note: 52]See generally NEs from Day 8, Pg 27, Line 14 to Day 8, Pg 31, Line 25

[note: 53]NEs, Day 8, Pg 9 Line 28 to Day 8, Pg 10, Line 8

[note: 54]NEs, Day 2, Pg 30, Line 19

[note: 55]NEs, Day 2, Pg 67, Lines 20 to 28

[note: 56]NEs, Day 6, Pg 4, Line 2.

[note: 57]NEs, Day 6, Pg 10, Lines 3 to 4.

[note: 58]PCS at [46].

[note: 59]NEs, Day 6, Pg 7, Lines 8 to 20.

[note: 60]NEs, Day 6, Pg 37, Lines 11 to 22.

[note: 61]P6.

[note: 62]Plea-In-Mitigation dated 15 April 2024 (“PIM2”) at [20].

[note: 63]PCS at [47]-[48].

[note: 64]NEs, Day 6, Pg 11, Line 1, to Day 6, Pg 13, Line 2

[note: 65]NEs, Day 6, Pg 37, Line 14 to Day 6, Pg 40, Line 17

[note: 66]NEs, Day 7, Pg 14, Line 13 to Day 7, Pg 16, Line 25

[note: 67]E.g. https://www.sydneycriminallawyers.com.au/blog/is-receiving-oral-sex-whilst-driving-a-crime/

[note: 68]E.g. https://nypost.com/2022/06/03/oral-sex-sends-florida-man-crashing-into-fedex-truck/

[note: 69]NEs, Day 7, Pg 17, Lines 5 to 7

[note: 70]DW3 Haffiyenti bte Salim.

[note: 71]DW4 Amirul Amri bin Salim.

[note: 72]NEs, 4 October 2023, p 39, lines 8-9.

[note: 73]NEs, 4 October 2023, p 43, lines 20-21.

[note: 74]NEs, 4 October 2023, p 48, lines 19-22.

[note: 75]NEs, 4 October 2023, p 53, lines 29-32.

[note: 76]NEs, 4 October 2023, p 49, lines 29-31.

[note: 77]NEs, 4 October 2023, p 52, lines 9-13.

[note: 78]NEs, 4 October 2023, p 62, lines 8-28; p 68 lines 1-7.

[note: 79]NEs, 4 October 2023, p 43, lines 14-17.

[note: 80]NEs, 4 October 2023, p 45, lines 24-27.

[note: 81]NEs, 4 October 2023, p 47, lines 27-31

[note: 82]NEs, 19 January 2023, p 27, line 20; 4 October 2023, p 50, lines 15-23.

[note: 83]NEs, Day 8, Pg 68, Lines 9 to 31

[note: 84]NEs, Day 8, Pg 70 Line 1, to Day 8, Pg 71, Line 18

[note: 85]DAC-901126-2020 and DAC-901127-2020.

[note: 86]Prosecution’s Submission on Sentence dated 5 February 2024 (“PSS”) at [2]; Prosecution’s Supplementary Submission on Sentence dated 17 April 2024 (“PSSS”) at [3].

[note: 87]Plea-In-Mitigation dated 2 February 2024 (“PIM”) at [1].

[note: 88]PIM2 at [2].

[note: 89]PSS at [6].

[note: 90]At [102], [107]-[108].

[note: 91]At [40].

[note: 92]At [39(a)], [42] and [73(a)].

[note: 93]CJH at [102].

[note: 94]NE (“NEs”), Day 2, p 36, Lines 28 to 30.

[note: 95]NEs, Day 2, p 37, lines 1 to 9.

[note: 96]At [75], [111]-[113].

[note: 97]NEs, Day 2, p 39, lines 25 to 32.

[note: 98]PSSS at [33].

[note: 99]PIM2 at [9].

[note: 100]Magistrate’s Appeal No. MA-9068-2023-01 heard on 18 January 2024.

[note: 101]Public Prosecutor v GCM [2021] SGHC 18, AQW v Public Prosecutor [2015] SGHC 134 and Public Prosecutor v Qiu Shuihua [2015] SGHC 102.

[note: 102]PSSS at [34].

[note: 103]PSSS at [36]-[38].

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Public Prosecutor v Hee Kwee Choy
[2024] SGDC 230

Case Number:District Arrest Case No 902668 of 2024, Magistrate's Appeal No 9166 of 2024 - 01
Decision Date:05 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Gabriel Lee (Attorney-General's Chambers) for the Public Prosecutor; Sara Ng Qian Hui (Covenant Chambers LLC) for the Accused.
Parties: Public Prosecutor — Hee Kwee Choy

Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(3)(a) read with Section 65(6)(d) – Driving without reasonable consideration causing grievous hurt – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9166/2024/01.]

5 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Hee Kwee Choy is a 59-year-old male Singaporean who pleaded guilty to a single charge under section 65(1)(b) punishable under section 65(3)(a) read with section 65(6)(d) of the RTA for driving without reasonable consideration for other persons using the road.

2       I sentenced the accused to 3 weeks’ imprisonment and a disqualification and period of 5 years with effect from the date of release.

3       The accused is dissatisfied with the sentence and has filed an appeal.

Facts

4       On 15 November 2022 at about 11.49pm, the accused was driving a motorcar bearing the registration number SLA5291X with his wife as a passenger

5       At the signalised cross junction of Tampines Road and Hougang Avenue 3, the accused waited for the traffic light to turn green in his favour before making a discretionary right turn.

6       Around the same time, one Liow Yaw Shen, a then 46-year-old male (“the victim”) was crossing Hougang Avenue 3 at the pedestrian crossing while the pedestrian signal was green in favour of pedestrians. The accused did not notice the victim as he was making the discretionary right turn and his car collided into the victim.

7       The accused stopped his car, attended to the victim and called for emergency medical services. The victim was subsequently conveyed to Sengkang General Hospital via ambulance.

8       As a result of the accident, the victim sustained right acetabular fractures and an undisplaced right inferior pubic ramus fracture. He underwent surgery to treat the right acetabular fractures and was subsequently placed on a physiotherapy regime that was expected to continue for at least three months.

9       The victim was hospitalised for a total 15 days and was given a total of 45 days of hospitalisation leave (which included the period of hospitalisation).

10     The accused’s car did not sustain any damages.

11     At the time of the accident, the weather was fine, the road surface was dry, traffic flow was light, and visibility was clear.

Antecedents

12     The accused did not have any previous convictions.

13     The conviction history document that was tendered to the court ahead of the mention indicated that the accused had a history of compounded traffic infringements. However, the Prosecution indicated that it was not intending to rely on these records and did not read them into the record.[note: 1]

Prosecution’s sentencing submission

14     The Prosecution submitted for a sentence between 2 to 3 months’ imprisonment along with the mandatory minimum disqualification period of 5 years.

15     Applying the sentencing framework set out in Chen Song v Public Prosecutor and ors [2024] SGHC 129 (“Chen Song”) for offences punishable under section 65(3)(a), the Prosecution submitted that the present case fell within Band 1 of the framework. This was based on its assessment that there were two primary harm factors and no culpability enhancing factors engaged in this case.

16     While Chen Song indicates that the presence of two harm factors would constitute “greater harm”, which would push the case into Band 2, the Prosecution took the view that based on a holistic assessment of the harm factors, it was still appropriate to place the present case within Band 1 of the framework.

17     Within the Band 1 sentencing range, the Prosecution submitted that the appropriate starting point was around 3 to 4 months’ imprisonment, which then could be adjusted downward to 2 to 3 months’ imprisonment to account for the accused’s plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentence for Guilty Pleas (“PG Guidelines”).

Defence’s sentencing submission and mitigation

18     The Defence submitted that a fine of $2,500 to $3,000 and mandatory minimum disqualification period was appropriate in the present case.

19     With reference to the Chen Song framework as well, the Defence argued that there was only one primary harm factor in the present case in light of the surgery that the victim underwent. The Defence highlighted that there was only one injury in this case, which was not in a vulnerable location of the body and had healed well. There was also no indication that the injury was permanent or that it would have any impact of the victim’s livelihood.

20     As for the accused’s culpability, the Defence argued that there were no culpability factors present since there was no dangerous driving behaviour or any flouting of traffic rules and regulations. It emphasised that the accused had not been speeding and had stopped to check for oncoming traffic. While the Defence confirmed the position that the accused had not noticed the victim at all, it argued that the level of carelessness was nevertheless low and his ought not to be considered as exhibiting a high level of carelessness.

21     In arguing that a fine was an appropriate sentence in the present case, the Defence cited the case of Erh Zhi Huang Alvan v Public Prosecutor (“Alvan Erh”), which appeal was one of the cases heard in the Chen Song decision. The High Court had allowed the appeal in Alvan Erh and substituted a sentence of 10 weeks’ imprisonment with a fine of $4,000.

22     The offender in Alvan Erh had failed to keep a proper lookout while abruptly changing lanes during peak hour on an expressway, which led to a collision with a motorcyclist. The victim there suffered a traumatic amputation of the right little finger and a right sided clavicle fracture, for which he was given 58 days of hospitalisation leave. The High Court had noted that while there was permanent injury caused to the victim in the form of the amputated finger, there was no evidence of any permanent hand disability.

23     The Defence argued that the harm in the present case was less serious than that in Alvan Erh, since there was no permanent injury suffered by the victim in this case. It also highlighted that there was little to no potential harm in the present case given that the accident happened late at night and given that the victim was the only pedestrian at that time.

24     Emphasis was placed on the fact that this was the first time that the accused had been charged for a traffic offence in 40 years of driving, and the fact that he had pleaded guilty within Stage 1 of the PG Guidelines, cooperated with authorities and rendered assistance to the victim.

Reasons for the sentences imposed

Punishment provisions

25     Section 65(3)(a) of the RTA provides that an offender who has caused grievous hurt by committing an offence under section 65(1) is liable to a fine not exceeding $5,000, or to imprisonment for a term not exceeding 2 years or to both.

26     Under section 65(6)(d) of the RTA, a court who convicts a person of an offence under section 65(3)(a) must order that the person be disqualified from holding or obtaining a driving licence period of not less than a period of 5 years, unless the court for special reasons thinks it fit to not order or to order otherwise.

The applicable sentencing frameworks

27     As referenced in the submissions made by both parties, the applicable sentencing framework for the offence in this case is set out in Chen Song, where the High Court set out a sentencing framework for offences punishable under section 65(3)(a) and section 65(4)(a) of the RTA.

28     At the first step, the sentencing court is to identify the number of offence-specific harm and culpability factors.

29     Under “harm” factors, the High Court distinguished between primary and secondary harm factors, with each primary harm factor counting as one offence-specific factor going towards harm, while secondary harm factors, where significant, would go towards where the offence falls within the indicative sentencing band. Primary harm factors are those that pertain directly to the bodily injury suffered by the victim(s) in the case, which include: (i) nature and location of the injury, (ii) degree of permanence, and (iii) impact of the injury. The secondary harm factors identified were: (i) potential harm, and (ii) property damage.

30     The non-exhaustive list of “culpability” factors identified include: (i) any form of dangerous driving behaviour, (ii) flouting of traffic rules and regulations, and (iii) high degree of carelessness.

31     At the second step, the court is to identify the applicable sentencing band based on the number of offence-specific factors present. In this regard, the High Court held that:

(a)     If there are 0 to 1 harm or culpability factors, there will be “lesser harm” and “lower culpability” respectively; and

(b)     If there are 2 or more harm or culpability factors, there will be “greater harm” and “higher culpability” respectively.

32     At the third step, the sentencing court is to identify the indicative starting point within the sentencing band, having regard to all the primary harm and culpability factors identified, as well as the secondary harm factors.

33     Finally at the fourth step, appropriate adjustments may be made to the starting point by taking into account offender-specific factors.

Assessment of the level of harm

34     I agreed with the Prosecution that two of the primary harm factors had been engaged in the present case, namely: (i) nature and location of the injury, and (ii) impact of injury.

35     Based on the medical report of the victim, it appeared that multiple fractures were sustained – there were fractures of the right acetabular, as well as an undisplaced fracture of the right inferior pubic ramus. The Defence had argued there was only one injury, and while I accept that the fractures were indeed concentrated in the pelvic area of the body, I did not think it was entirely accurate to consider it a single injury.

36     I also disagreed with the Defence that the injuries were not in a vulnerable part of the body. While it is certainly not as vulnerable a part such as the head or chest, the pelvic area is clearly a critical part of the body for overall movement.

37     The victim underwent surgery for the acetabular fractures, which is also relevant in considering the nature and location of the injury. The medical report indicated that the post-operation recovery was complicated by “possible hospital acquired pneumonia”.[note: 2]

38     As for the impact of injury, I noted that the period of hospitalisation was not insubstantial, at 15 days. In total, he was given 45 days of hospitalisation leave. The medical report also noted that he was placed on physiotherapy, which started whilst he was inpatient and was expected to last for at least the next 3 months.

39     I was mindful of the High Court’s comment at [127] of Chen Song that even where two or more primary harm factors apply, but if presented only to a limited degree, then the court may nevertheless consider that “lesser harm” had been caused based on a holistic assessment of the harm caused.

40     In my view, the “nature and location of the injury” ought to be considered as 1 primary harm factor. As for the “impact of injury”, I was of the view that this was engaged but only to a limited degree – the periods of hospitalisation, hospitalisation leave and physiotherapy whilst substantial, were not inordinately long. There was also no indication that the victim’s ability to carry out daily tasks and maintain his livelihood had been affected by the injuries.

41     Thus, I agreed with parties that the overall assessment of harm in this case would be considered as “lesser harm”, though in my view, this was at the higher end of “lesser harm”.

42     None of the secondary harm factors were engaged in this case, since there was no property damage caused and there did not appear to be any significant potential harm given the lack of other road users in the area at the time of the accident.

Assessment of the level of culpability

43     On the issue of culpability, I was similarly with parties that this was a case involving “lower culpability”. I accepted that there were no dangerous driving behaviours exhibited, nor had the accused flouted any traffic rules and regulations.

44     As for the degree of carelessness, bearing in mind that the victim was crossing the road at a signalised pedestrian crossing where the light was in his favour, it was remarkable to me that the accused had completely failed to notice the victim as he made the turn, which to my mind is indicative of how poor a lookout he was keeping. This was not a pedestrian at a non-designated crossing where it might be argued that a driver might not expect pedestrians to be, but a signalised pedestrian crossing that was on the green signal for pedestrians.

45     That said, I noted that the High Court in Chen Song held (at [131(c)] and [132]) that when considering the culpability factor of “higher degree of carelessness”, there ought to be a prolonged or sustained period of inattention, as opposed to a momentary lapse of attention. As such, I did not consider the culpability factor of “higher degree of carelessness” to be engaged in this case, though as I have explained above, I emphasise that the level of carelessness was by no means low.

Indicative starting point

46     The High Court in Chen Song held (at [137]) that the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present. I also bore in mind the High Court’s guidance that fines would ordinarily be reserved for cases where 0 to 1 offence-specific harm and/or culpability factors are present. In my view, there was clearly more than 1 offence-specific harm and/or culpability factors present in this case.

47     Taking all the harm and culpability considerations into account, I was of the view that the custodial threshold had been crossed. This was because there were two primary harm factors had been engaged, albeit with one being engaged to a limit extent, giving rise to an overall assessment of harm being at the higher end of “lesser harm”, along with my view that the degree of carelessness was by no means low.

48     The custodial sentencing range within Band 1 goes up to 6 months’ imprisonment, and in my view the appropriate indicative starting point for this case ought to be toward the lower end of the custodial range, at around 1 to 2 months’ imprisonment.

Offender-specific factors

49     Turning to the offender specific factors in this case, it would be aggravating if the offender had relevant traffic antecedents. As I noted above, it appeared that the accused had a history of related antecedents but given the Prosecution’s position that they were not relying on them, I did not place reliance on them.

50     The main offender specific factor that applied in this case was the accused’s plea of guilt. I noted that the accused had indicated his intention to plead guilty within Stage 1 of the PG Guidelines, and I accepted he ought to be given the appropriate reduction in sentence in accordance with the PG Guidelines.

51     Thus, from the starting point of 1 to 2 months’ imprisonment, I calibrated the sentence downwards and arrived at 3 weeks’ imprisonment, which in my view adequately and appropriately reflected the overall criminality of the accused in this case.

52     I did not think that there were any special reasons not to impose a disqualification period below the mandatory minimum period of 5 years in this case.

Comparison with Alvan Erh

53     I considered the case of Alvan Erh, which the Defence had cited as a point of reference. Notwithstanding that the applicable sentencing framework that applied in Alvan Erh was the framework established in Sue Chang (Xu Zheng) v Public Prosecutor [2023] 3 SLR 440 (“Sue Chang”) and not the Chen Song framework, I agreed that it was nevertheless a helpful reference point given that the High Court had taken the view in Chen Song (at [120]) that the application of the modified Tang Ling Lee sentencing bands approach that was eventually laid down in Chen Song and the framework in Sue Chang would likely result in same or similar outcomes.

54     The Defence argued that the injuries sustained by the victim in Alvan Erh were more serious than that in the present case. It was emphasised that the victim in Alvan Erh’s case had suffered a permanent injury in the form of the amputated little finger, whereas there were no such permanent injuries in the present case. Bearing in mind that the assessment that there were no culpability enhancing factors in both this case and Alvan Erh, the Defence argued that the less serious injuries in the present case ought to translate to a lower sentence than that which was imposed in Alvan Erh.

55     In this regard, I think that the focus on the permanent nature of the injury suffered by the victim in Alvan Erh can be an unhelpful distraction in the assessment of overall harm. Understandably, any indication of permanence suggests a certain level of severity of the injury. However, it is important to engage – as the High Court emphasised in Chen Song (at [127]) – in a holistic assessment of the harm factors.

56     Whilst the victim in Alvan Erh suffered a permanent loss of his little finger, the High Court noted that there was no indication of any permanent disability that resulted from this injury and that he had in fact been medically assessed as being likely to be able to return to work. Apart from this, he also suffered a right clavicle fracture, though it is not apparent that there was any surgical intervention required for this injury. While the victim here was given 57 days of hospitalisation leave, this included just one day of hospitalisation, as he was discharged the day after the accident occurred.

57     In contrast, the victim in the present case suffered multiple fractures to the pelvic area, which to my mind can be considered a more sensitive or vulnerable part of the body than the little finger or the clavicle. The victim required surgery for the fractures and was hospitalised for 15 days, during which time he had post-operation complication in the form of “possible hospital acquired pneumonia”. While his overall period of hospitalisation leave was shorter than that in Alvan Erh, it should be noted that the victim here was expected to be on physiotherapy for at least 3 months.

58     Assessing these factors holistically, in my view the level of harm cannot be said to be less serious than that in Alvan Erh and ought to be considered slightly more aggravated than Alvan Erh. Accordingly, I did not think that the sentence imposed in this case was out of step with the outcome in Alvan Erh.

Conclusion

59     For the reasons set out above, I sentenced the accused to 3 weeks’ imprisonment and a disqualification period of 5 years with effect from his date of release.

60     A stay of execution was granted on the imprisonment term as well as the disqualification order. The accused is presently on bail pending appeal.

[note: 1]Notes of Evidence at page 3, line 13

[note: 2]Exhibit P2, Medical Report dated 21 December 2022

"},{"tags":["Criminal Law – Offences – Sexual offences – Sexual exposure","Criminal Procedure and Sentencing – Sentencing – Persistent offenders"],"date":"2024-09-02","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904223 of 2024","title":"Public Prosecutor v Keong Hock Lai","citation":"[2024] SGMC 63","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32064-SSP.xml","counsel":["Lynda Lee (Attorney-General's Chambers) for the Public Prosecutor","Accused self-represented."],"timestamp":"2024-09-06T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Keong Hock Lai

Public Prosecutor v Keong Hock Lai
[2024] SGMC 63

Case Number:Magistrate Arrest Case No 904223 of 2024
Decision Date:02 September 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Lynda Lee (Attorney-General's Chambers) for the Public Prosecutor; Accused self-represented.
Parties: Public Prosecutor — Keong Hock Lai

Criminal Law – Offences – Sexual offences – Sexual exposure

Criminal Procedure and Sentencing – Sentencing – Persistent offenders

2 September 2024

District Judge Paul Quan:

Introduction

1       It was a Friday morning during the mid-year school holidays. The victim, who was then 14 years old, went to Woodlands Regional Library with her mother to return and borrow books on 7 June 2024. While she was browsing at the library, she chanced upon the accused, Keong Hock Lai (“Mr Keong”), a 51-year-old Malaysian national, who is also a Singapore Permanent Resident, masturbating in a sofa with his penis exposed. Mr Keong made eye contact with the victim and smiled at her. This distressed the victim and she quickly left to look for her mother, who in turn informed the librarian. The librarian then called the police but Mr Keong had left the library by that time.

2       Mr Keong has pleaded guilty to a charge of sexual exposure under section 377BF(1) of the Penal Code 1871 (2020 Rev Ed). Mr Keong went to the library to charge his mobile phone. When he saw female patrons at the library, he felt aroused and decided to masturbate himself at the library. For the purpose of obtaining sexual gratification, he intentionally exposed his penis in the act of masturbation for 35 seconds. When the victim caught him in the act, he did not stop but instead smiled at her after making eye contact, intending for her to see his exposed penis. He did so obviously without the victim’s consent because she chanced upon his indecent exposure unsuspectingly. All the essential elements of section 377BF(1) of the PC are therefore satisfied.

3       Mr Keong must be punished with imprisonment that may extend to a year and/or fine. The prosecution has sought to impose an imprisonment term of between eight to ten weeks on Mr Keong based on the principle of deterrence, the harm caused to the victim and Mr Keong’s similar criminal antecedents. Mr Keong has pleaded for the court’s leniency. He promised to mend his ways, keep himself busy with work so that he would not have idle thoughts, and remain at home after coming back from work.

4       I sentence Mr Keong to two months’ imprisonment. I set out the reasons for my decision.

Issues to be decided

5       There are three main issues I have to decide in this case:

(a)     first, the operative sentencing principle(s) that should inform my sentencing decision;

(b)     second, the harm caused by Mr Keong’s offence and his culpability in the offence; and

(c)     third, the aggravating and mitigatory weight to be given to relevant factors personal to Mr Keong that present themselves in this case.

6       I resolve the issues in this way:

(a)     the dominant sentencing considerations are deterrence and retribution. Mr Keong must be suitably deterred but also held accountable according to the severity of the offence and the level of his culpability. Like-minded sex fiends must be deterred against “flashing” to satisfy their perverted sexual urges or cause humiliation, alarm or distress to their victims;

(b)     the harm caused to the victim is serious, considering her age, what she saw, and how Mr Keong responded to her when he realised her presence. Mr Keong’s indecent exposure was wholly culpable, having regard to the audacity of the particular nature of his conduct; and

(c)     Mr Keong’s similar criminal antecedents are aggravating. There is no evidence to suggest he was labouring under any mitigating medical or psychological condition at the time of the offence. On the contrary, he did not show any guilt, remorse or contrition even when he was literally caught with his pants down and engaging in his dastardly act. In his favour was his early indication of guilty plea and only because by doing so, he has spared the young victim of having to testify against him in court in a trial.

Analysis of issues

7       I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing principle

8       The operative sentencing consideration in this case is deterrence. The imposition of a custodial term even for first-time offenders underscores the need to meet the ends of general deterrence. This has been expressed in PP v Tan Chen Chek, unreported, Magistrate Arrest Case 908125 of 2022 at [27], [29] and [30]:

With the new offence created to update the law and criminalise sexual exposure, and the prevalence of the offence of “flashing” where offenders intentionally expose their genitalia without the victim’s consent, … the court should send a clear signal to would-be offenders that a custodial sentence would be imposed in the ordinary course, and this in turn, would serve as a stronger deterrent effect.

…

…[T]he more recent sentences imposed by the court do reflect the current judicial attitude and abhorrence towards such offences, and that a custodial sentence could still be visited on a first-time offender.

In the final analysis… a custodial sentence is appropriate to send a clear message to deter like-minded offenders from committing such offences, and that a fine would be warranted only in exceptional circumstances.

9       Unequivocal disapprobation of perverse sexual exposure will suitably disincentivise like-minded offenders. With the threat of deterrent punishment hanging above them like the proverbial Damoclean sword, they are likely to think twice about acting on their sexual urges or carrying out their mischief. This is all the more so in the context of public spaces, where members of the public should have the right to enjoyment, and should not have to be subjected to the traumatic experience of witnessing deliberate and intentional sexual exposures. In Mr Keong’s case, specific deterrence comes sharply into focus because this is not his first foray into this genre of sexual offences; in fact, his offending conduct on this occasion has worsened and the principle of escalation should be pressed into service to also meet the ends of specific deterrence.

10     Having said this, deterrence should not be indiscriminately used as a sledgehammer with which to crush offenders, and has to be tempered with retributive considerations so that the punishment always fits the crime and the criminal. This segues into the analysis of the next two issues that focus on considerations of the relevant offence-specific and offender-specific factors at play in this case.

Issue 2: Offence-specific harm-culpability analysis

11     Retributive justice circumscribes deterrence by its insistence on punishment being proportionate to the severity of the offence and the offender’s level of culpability: Tan Kay Beng v PP [2006] 4 SLR(R) 10 at [31].

Harm caused is serious

12     In this case, the level of harm inflicted on the victim is serious because of her age, what she had witnessed and how Mr Keong responded to her when he realised her presence.

13     The victim was 14 years old at the time of Mr Keong’s offence. She barely crossed the statutory age that would otherwise have subjected Mr Keong to the enhanced punishment regime under section 377BF(4) of the PC. That the enhanced punishment provision does not apply in this case does not change the fact that Mr Keong sexually exposed himself to a young victim.

14     The victim not only had to witness Mr Keong exposing himself in a public space that she was free to access and enjoy; she has had to endure this distressing sight in the context of him engaging in the lewd act of masturbation.

15     This is all the more serious when the manner in which Mr Keong responded to the victim, after she caught sight of what he was doing, is considered. Instead of stopping whatever he was doing after making eye contact with her, he smiled at her instead. This would have increased the level of distress that the victim was experiencing considerably, having already had to process witnessing Mr Keong intentionally exposing himself and engaging in a lewd act deal after stumbling unsuspectingly upon him. She was sufficiently distressed to exit that uncomfortable scene quickly to look for her mother.

Mr Keong’s culpability is high

16     Mr Keong’s culpability is high. It was an audacious act of perversion because of the cumulative effect of four reasons:

(a)     first, it violated such a wholesome public space and caught the victim unawares, interfering with her right to enjoyment of such a space. Other than the victim who was nearby at the time when he was exposing himself and engaging in his lewd act, there was a female patron in the sofa next to his and another who was browsing in the vicinity;

(b)     second, he was shockingly indiscreet. The victim saw him with his knee-length shorts partly pulled down and he wore no underwear;

(c)     third, this was not a typical “flashing” offence. The sexual exposure was in the context of a more egregious lewd act of masturbation; and

(d)     fourth, the most damning is the deeply disturbing extent of his sexual depravity. When the victim came into his line of sight, this did not jolt his conscience that he was actually exposing a minor to his depraved act and stop him in his tracks. Indeed, he had been engaged in the lewd act for 35 whole seconds and was not merely exposing or touching himself fleetingly.

Issue 3: Offender-specific analysis of personal aggravating and mitigating factors

17     I next consider the aggravating and mitigatory weight to be accorded to the relevant factors personal to Mr Keong that present themselves in this case.

Similar antecedents aggravating and principle of escalation applies

18     Mr Keong is not a first offender and has similar criminal antecedents for:

(a)     insulting the modesty of a woman under section 509 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC 1985”) and was fined S$600 in 1992; and

(b)     doing an obscene act in public under section 294(a) of the PC 1985 and was sentenced to one month’s imprisonment in 2003.

The previous fine and imprisonment term obviously did not deter Mr Keong from re-offending. The principle of escalation is clearly applicable in this case to meet the ends of specific deterrence. This entails invoking an escalation in sentence to cumulatively increase his sentences to deter him: PP v Low Ji Qing [2019] 5 SLR 769 at [58] and [59]. He is deterrable by such an escalation because he clearly possesses some insight into his offending behaviour from his oral mitigation, but the opportunity cost of crime was obviously not prohibitively high to make him think twice about reoffending.

19     The maximum prescribed punishment for the present sexual exposure offence is the same as that for public obscenity under section 294(a) of the PC 1985, to which he had pleaded guilty. For this latest occasion of re-offending and having regard to my harm-culpability assessment, I double the length of Mr Keong’s last custodial term (for the offence under section 294(a) of the PC 1985) and impose a sentence of two month’s imprisonment on him.

Reduction in sentence for early guilty plea does not apply

20     Adopting the Sentencing Advisory Panel’s recommendation in its guidelines, Mr Keong should be accorded the full 30% reduction in sentence for his early indication of guilty plea, but in this case only because he has spared a young victim of having to testify against him in a trial, even though he showed no sign of guilt, remorse or contrition by his act of smiling at the victim when he was caught in the act. However, since the sentence for Mr Keong’s present offence is based on doubling his last sentence (that arose from him pleading guilty to his public obscenity offender under section 294(a) of the PC 1985), the 30% reduction should not be applied over and above that already discounted plead-guilty sentence.[note: 1]

Conclusion

21     Both the ends of deterrent and retributive justice are aligned in this case. The nature of the offence was serious, as was the nature of the offending conduct that reflected a high level of culpability. This was coupled with Mr Keong’s aggravating similar criminal antecedents. Although he showed an utter lack of remorse at the time of the offence, Mr Keong spared the victim of the secondary trauma of having to testify against him in a trial by pleading guilty, to which due credit is given.

Sentence of two months’ imprisonment imposed

22     As such, I sentence Mr Keong to two months’ imprisonment on the sexual exposure charge, which effectively doubles his last custodial term for his public obscenity offence. I also backdate his sentence to 7 June 2024 when he was first arrested to take into account the period(s) of custody and to exclude the bail period from 21 June 2024 till date.

[note: 1]Sentencing Advisory Panel, “Guidelines on Reduction in Sentences for Guilty Pleas” <https://www.sentencingpanel.gov.sg/files/Guidelines/guidelines on reduction in sentences for guilty pleas.pdf> (15 August 2023) at para 10.

"},{"tags":["Criminal Law – Statutory Offences – Prevention of Corruption Act","Criminal Procedure – Newton hearing"],"date":"2024-08-30","court":"District Court","case-number":"District Arrest Case No 920868 of 2020 and others, Magistrate's Appeals No 9022 of 2024-01","title":"Public Prosecutor v Rajavikraman s/o Jayapandian","citation":"[2024] SGDC 223","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32059-SSP.xml","counsel":["David Menon, Janice See and Ben Mathias Tan (Attorney-General's Chambers) for the Public Prosecutor","Adrian Wee Heng Yi and Lynette Chang Huay Qin (Lighthouse Law LLC) for the Accused."],"timestamp":"2024-09-06T16:00:00Z[GMT]","coram":"Ronald Gwee","html":"Public Prosecutor v Rajavikraman s/o Jayapandian

Public Prosecutor v Rajavikraman s/o Jayapandian
[2024] SGDC 223

Case Number:District Arrest Case No 920868 of 2020 and others, Magistrate's Appeals No 9022 of 2024-01
Decision Date:30 August 2024
Tribunal/Court:District Court
Coram: Ronald Gwee
Counsel Name(s): David Menon, Janice See and Ben Mathias Tan (Attorney-General's Chambers) for the Public Prosecutor; Adrian Wee Heng Yi and Lynette Chang Huay Qin (Lighthouse Law LLC) for the Accused.
Parties: Public Prosecutor — Rajavikraman s/o Jayapandian

Criminal Law – Statutory Offences – Prevention of Corruption Act

Criminal Procedure – Newton hearing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9022/2024/01.]

30 August 2024

District Judge Ronald Gwee:

1       The High Court set out the sentencing framework for private sector corruption offences under ss 6(a) and 6(b) of the Prevention of Corruption Act (“PCA”) in Goh Ngak Eng v PP [2023] 4 SLR 1385 (“Goh Ngak Eng”).

2       In these present Grounds of Decision, references to “Goh Ngak Eng” relate to the High Court decision, and references to “Goh” relate to the accused person in that case, one Goh Ngak Eng.

3       Goh was involved in a conspiracy with one Rajavikraman s/o Jayapandian (“Rajavikraman”) and one other person we shall refer to as “Lim”, to corruptly receive gratification.

4       The facts of the case (so far as they relate to Goh) are set out in [7] to [12] of Goh Ngak Eng.

5       The said Rajavikraman is the person who pleaded guilty before me, to 16 charges, and admitted and consented to 33 other charges being taken into consideration for purposes of sentencing.

6       When Rajavikraman’s guilty plea was taken before me, the Statement of Facts (“SOF”) was read out to Rajavikraman. The SOF in relation to Rajavikraman (in its entirety) presented facts consonant with the circumstances related to Goh in his case. Save for three issues, Rajavikraman admitted to the SOF without qualification.

7       The Prosecution and the Defence were both in agreement that Rajavikraman’s non-acceptance of these three issues did not qualify his guilty plea. I agreed with parties on this, and a Newton hearing was thus convened before me to determine these three issues. These three issues would affect sentence but would not otherwise affect Rajavikraman’s guilty plea.

8       The first issue was, “Whether it was Goh or Rajavikraman who first proposed the corrupt arrangement;”.

9       The second issue was, “Whether it was agreed between Goh and Rajavikraman that the balance of the marked-up amounts would be shared equally between themselves;”.

10     The third issue was, “What was the total amount of the gratification Rajavikraman personally received from the corrupt arrangement.”

11     With regard the first issue, the Prosecution’s assertion was that it was Rajavikraman who proposed the corrupt arrangement. This was a position consonant with the facts in Goh’s case. The Defence asserted a contrary position, in that it was Goh who proposed the corrupt scheme to Rajavikraman.

12     With regard the second issue, the Prosecution’s assertion was that it had been agreed between Goh and Rajavikraman that the balance of the marked-up amounts would be shared equally between themselves. This was a position consonant with the facts in Goh’s case. The Defence asserted that although there had been an agreement that Rajavikraman would receive part of the balance of the marked-up amounts, there had been no (specific) agreement that Rajavikraman would receive 50% (as asserted by the Prosecution).

13     With regard the third issue, the Prosecution asserted that Rajavikraman received a total of $191,115.89 as corrupt payments for the scheme involving himself, Goh and Lim. This was consonant with the facts in Goh’s case (in [11] of Goh Ngak Eng, it is stated that Goh and Rajavikraman each received $191,115.89, as fruits of their respective corrupt endeavours). The Defence asserted that Rajavikraman had received a total sum of “no more than S$28,000”.

14     The Prosecution had the burden of proving its assertions for the three issues, beyond a reasonable doubt.

15     At the Newton hearing, the Prosecution called Goh as its sole witness. The Defence called Rajavikraman as its sole witness. After hearing all the evidence and having considered the closing submissions of each party (in written form as well as their oral replies), I found that the Prosecution had proven its case for each of the three disputed issues beyond a reasonable doubt.

16     I therefore found, in relation to the three issues, that it was Rajavikraman who proposed the corrupt arrangement to Goh; that it had been agreed between Rajavikraman and Goh that the balance (after the earlier agreed deductions) was to be shared equally between the two of them, namely Rajavikraman and Goh; and that the total sum received as gratification by Rajavikraman was the sum of $191,115.89.

17     Before I delivered my findings after the Newton hearing, I made the following brief, oral remarks (delivered ex tempore and captured verbatim from the transcript of the Notes of Evidence.

18     (Start of oral remarks) “I think for the first two issues, the evidence was quite clear as to the findings I’m about to make. Upon consideration of all the evidence that has been heard, I would state that in respect of the first issue and that was whether it was Goh or the accused who proposed this corrupt arrangement, my finding is that it was the accused who proposed the corrupt arrangement to Goh. Primarily, the accused was the one with the direct contact with the person whom I shall just name as Alvin in this particular case, and the circumstances showed, as well as from the evidence given by Goh, that he was the one that, sorry, that the accused was the one who proposed this arrangement.

Issue number two is similarly from, to my mind, quite clear cut from the evidence that there was an agreement - whether it was an agreement initially or somewhere along the line - there was an agreement between the accused and Goh that the balance after the payments have been made would be shared equally between the two of them.

The third issue was the one which I invited parties to make further submissions. I’d come to a preliminary finding on this but I wanted to see if there was anything more that prosecution and defence had to say in this matter. I’ve carefully considered what both prosecution and defence have said in their respective submissions. Sometimes, it requires a look back at what it is that we are looking at. Looking again at the well, at least the first 15 of the 16 proceeded charges, those that involve the accused and Goh and the person named Alvin, leaving aside the charge that only involves Goh, it was that the accused had pleaded guilty to having abetted by engaging in a conspiracy with Goh and as well as with the person called Alvin. And the charge goes on to say that a certain sum was obtained by Goh, and this sum was for himself sorry, for the accused, Alvin as well as Goh, and this follows through all the proceeded charges, only difference of obviously being the dates as well as the sums involved and the persons from which these figures had been obtained. Now, one point that the prosecution makes is that and this is something that has to be pointed out. It is rare, in fact, in any corruption case where there’s evidence of any form which seems to show the actual sums that are involved. I note the defence’s submissions as to how accurate these sums are to be taken but I would agree with the prosecution that the purpose of this was to document, in that sense, the payments that were to be made from each of the invoice payments that were incoming. Now, I do take note that the actual figures in NHP1 may not have been directly entered by Goh himself but I’m satisfied that Goh was himself satisfied as to the accuracy of these figures that had been entered into the Excel spreadsheet. And it has been pointed out, and I think the prosecution points out to that extent, and I would just add that this was a spreadsheet that Goh was making available in that sense for the perusal of the accused as well as Alvin to see at any point whether any party had been short-changed. To that extent, looking at the procedure and the process as a whole, I accepted the prosecution’s point that the Court in this particular case could accept NHP1 in its entirety insofar as the figures that it states are accurate in terms of the payments that are due or said to be due to the person named Alvin and, in particular, the sums that were due and ultimately paid to the accused. There had not been in evidence, at least, any challenge on any of these payments that had been made during the currency of the corrupt arrangements between the parties involved.

Therefore, it’s stated I found for issues one and two in favour of the prosecution’s assertion. Just to summarise, that it was the accused who proposed the corrupt arrangement. And issue two that it had been agreed between the accused and Goh that the balance was to be shared equally between the two of them. And in respect of issue three, I agreed with the prosecution’s assertion that the Court in this particular case could, despite there may that despite the fact that there may have been less than 100% accuracy, and to that extent, I accept the prosecution’s point that this was not, in that sense, meant for an audit but it was meant for parties to be able to see, if such was required to be seen, the sums that were to be paid from the series of corrupt transactions. And to that extent, I accepted the prosecution’s submissions as I said, but I could accept NHP1 as a whole as representing an accurate representation insofar, at least, of the sums that were paid to the accused. And, therefore, in respect of issue three, I find for the prosecution’s assertion that the accused had received a total of $191,115.89 as asserted by the prosecution.” (end of oral remarks).

19     As far as the evidence was concerned, (leaving aside the third issue temporarily), the first and second issues were quite clearly to be found in the Prosecution’s favour. It had been Rajavikraman who was familiar with Lim and this connection was vital to facilitate the corrupt arrangement between Rajavikraman and Goh (and involving Lim – named as “Alvin” in the oral remarks). Rajavikraman was keenly aware of the role Lim played and how the weaknesses of Lim’s company’s processes could be exploited.

20     During the currency of the corrupt transactions, it was Rajavikraman (rather than Goh) who had been mainly liaising with Lim. On the whole, I believed Goh’s evidence on this point: indeed, as the Prosecution asserted, Goh had no reason to lie. Goh had pleaded guilty to a set of facts consonant with the SOF (in its entirety) in Rajavikraman’s case, and had been sentenced for his role in the corrupt transactions.

21     With respect to the first and second issues, I had no hesitation in finding for the versions put forth by the Prosecution in the SOF. The evidence on these two issues was quite clearly overwhelming.

22     The third issue raised interesting angles. In many corruption cases, the amount of gratification that is agreed between parties is very often a round figure or a convenient figure to ascertain. In the present case, Rajavikraman had agreed with Goh that they were to share equally the balance of the marked-up prices after the deductions for Lim’s share and for the payment of corporate tax. Each invoiced amount would therefore result in a different base amount upon which the agreed calculations were to be applied.

23     This is where the spreadsheet prepared by Goh entered the picture. This piece of evidence provided a “checklist” from which Lim, Goh or Rajavikraman could satisfy themselves that the amounts due to them from each corrupt transaction represented the correct amount.

24     Upon a careful consideration of the evidence heard at the Newton hearing, and the respective submissions on this point, I found that the Prosecution had proven its case on this point with regard the total gratification received by Rajavikraman over the course of the corrupt transactions.

25     There had apparently been no challenge (during the currency of the corrupt transactions) in particular from Rajavikraman, that any of the figures in the spreadsheet maintained by Goh had been erroneous: especially with regard to the respective sums Rajavikraman would have been “entitled” to.

26     I found in favour of the Prosecution’s position regarding the third issue. Rajavikraman had received a total sum of $191,115.89, and I so found.

27     After my findings from the Newton hearing, the sentencing for Rajavikraman was next to be considered. The Prosecution had proceeded against Rajavikraman for the 15 charges that represented “mirrored” charges that Goh had pleaded guilty to, and were referred to as the “Conspiracy Charges” in Goh Ngak Eng (charges involving the conspiracy involving Rajavikraman, Goh and Lim), and one charge (DAC-920915-2020) involving only Rajavikraman and Goh (referred to as one of the “Non-Conspiracy Charges” in Goh Ngak Eng). A Table (adapted from a table presented by the Prosecution) showing the sentences Goh received after his appeal to the High Court, and the comparative sentences sought by the Prosecution and the Defence for Rajavikraman, is shown in the following paragraph, [28]. The parties had indicated that three of the sentences (for the same “mirrored” charges for which Goh had been sentenced for in the High Court) should be made to run consecutively.

28     (Table proper appears on the following page.)

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29     The Prosecution’s submission represented a significant uplift from the sentences received by Goh (both for individual sentences as well as for the global sentence sought). The Defence submitted for sentences (individual and global) that were slightly below the level of Goh’s sentences.

30     The differentiation in the sentences imposed on Goh and the sentences to be imposed on Rajavikraman would turn largely on a comparison of the respective levels of culpability of Goh and Rajavikraman.

31     I carefully considered the respective submissions on sentence. I also took into account the Mitigation Plea.

32     I agreed with the Prosecution that in terms of culpability, Rajavikraman was more culpable than Goh. It was Rajavikraman who proposed the corrupt scheme to Goh. The actions of Rajavikraman during the currency of the events of the corrupt scheme also tilted the balance towards a finding of greater culpability on the part of Rajavikraman. Rajavikraman had played a greater role in liaising with Lim. I could not agree with the Defence that Rajavikraman deserved sentences lower than what Goh received.

33     However, I could not agree with the scale of the calibration upwards of the sentences as proposed by the Prosecution. Whilst I agreed that the individual sentences as well as the global sentence ought to factor in an uplift due to the higher culpability, I calibrated the sentences proposed by the Prosecution downwards. Therefore, the sentences meted out by this Court can be seen in the (further adapted) Table set out in the following paragraph, at [34].

34     (Table proper appears on the following page.)

S/N

DAC No.

Amount (S$)

Sentence imposed on Goh

Sentence Sought by Prosecution for Rajavikraman

Sentence Proposed by Defence for Rajavikraman

Sentence Imposed by the Court for Rajavikraman

1.

DAC-920868-2020

107,000.00

(Keh Choon / Titan)

15 months’ imprisonment

(consecutive)

20–22 months’ imprisonment

(consecutive)

13 ½ months’ imprisonment (consecutive)

17 months’ imprisonment (consecutive)

2.

DAC-920883-2020

21,835.41

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

3.

DAC-920888-2020

28,784.36

(Stanley/ Spectrama)

11 months’ imprisonment

(consecutive)

14–16 months’ imprisonment

(consecutive)

10 months’ imprisonment (consecutive)

13 months’ imprisonment (consecutive)

4.

DAC-920900-2020

46,170.50

12 months’ imprisonment

16–17 months’ imprisonment

11 months’ imprisonment

14 months’ imprisonment

5.

DAC-920901-2020

34,556.72

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

6.

DAC-920903-2020

36,754.50

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

7.

DAC-920904-2020

37,274.52

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

8.

DAC-920905-2020

43,882.84

12 months’ imprisonment

16–17 months’ imprisonment

11 months’ imprisonment

14 months’ imprisonment

9.

DAC-920906-2020

28,607.52

11 months’ imprisonment

14–16 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

10.

DAC-920907-2020

25,761.32

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

11.

DAC-920908-2020

22,778.16

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

12.

DAC-920909-2020

40,086.48

11 months’ imprisonment

16–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

13.

DAC-920910-2020

30,873.78

11 months’ imprisonment

14–16 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

14.

DAC-920911-2020

34,299.92

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

15.

DAC-920912-2020

27,623.12

(Fatkullah / Growa)

11 months’ imprisonment

(consecutive)

14–16 months’ imprisonment

(consecutive)

10 months’ imprisonment (consecutive)

13 months’ imprisonment (consecutive)

16.

DAC-920915-2020

3,000

One week’s imprisonment (consecutive for Goh)

Short custodial term

Fine

3 weeks’ imprisonment

Global sentence

37 months and

3 weeks (includes sentence for an unrelated charge)

48-54 months’ imprisonment

33 ½ months’ imprisonment and a fine

43 months’ imprisonment



35     The total sentence meted out to Rajavikraman was therefore imprisonment for a global term of 43 months. He was further ordered to pay a Penalty of $191,115.89 (in default six months’ imprisonment) pursuant to the PCA.

36     Rajavikraman appealed against the sentence imposed as well as the order of the said Penalty. Rajavikraman is currently serving sentence. The Penalty remains unpaid.

37     I was of the view that an uplift of two months’ imprisonment per charge (over the sentences Goh received for the mirrored charges) for the three sentences to be run consecutively, was appropriate in the circumstances to reflect the higher culpability of Rajavikraman, as compared to Goh. It had to be borne in mind that several sentences were ordered to run concurrently, and that there were 33 charges to be taken into consideration.

38     Upon a straight comparison of the sentences received for the Conspiracy Charges: Goh’s (total) sentence for the three mirrored charges was 37 months and the (total) sentence meted out to Rajavikraman was 43 months. I was of the view that the (total) uplift for these sentences run consecutively (amounting to six months), appropriately reflected the difference in culpability in the respective roles in this corrupt campaign.

39     It should also be pointed out that the sentence Goh received for the Non-Conspiracy Charge involving solely himself and Rajavikraman was ordered to run consecutively. For Rajavikraman’s mirrored charge, this sentence was ordered to run concurrently.

40     In the final analysis, I was of the view that the total sentence of 43 months’ imprisonment meted out to Rajavikraman was appropriate and was not crushing in the circumstances. The in default period of six months’ imprisonment in the event the Penalty was not paid, was similarly appropriate, and not excessive.

"},{"tags":["Contract – Contractual terms – Whether lease agreement can be construed as granting option to purchase at the end of lease","Contract – Contractual terms – Entire agreement clause – Whether collateral agreement is precluded"],"date":"2024-09-02","court":"Magistrate's Court","case-number":"Magistrate's Court Originating Claim No. 8528 of 2023","title":"Voo Teck Chuan v Skyway Motor Pte Ltd","citation":"[2024] SGMC 61","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32054-SSP.xml","counsel":["Mohamed Nawaz Kamil and Nadia Ui Mhuimhneachain (August Law Corporation) for the claimant","Hewage Ushan Saminda Premaratne and Choong Guo Yao, Sean (Meritus Law LLC) for the defendant."],"timestamp":"2024-09-04T16:00:00Z[GMT]","coram":"Vince Gui","html":"Voo Teck Chuan v Skyway Motor Pte Ltd

Voo Teck Chuan v Skyway Motor Pte Ltd
[2024] SGMC 61

Case Number:Magistrate's Court Originating Claim No. 8528 of 2023
Decision Date:02 September 2024
Tribunal/Court:Magistrate's Court
Coram: Vince Gui
Counsel Name(s): Mohamed Nawaz Kamil and Nadia Ui Mhuimhneachain (August Law Corporation) for the claimant; Hewage Ushan Saminda Premaratne and Choong Guo Yao, Sean (Meritus Law LLC) for the defendant.
Parties: Voo Teck Chuan — Skyway Motor Pte Ltd

Contract – Contractual terms – Whether lease agreement can be construed as granting option to purchase at the end of lease

Contract – Contractual terms – Entire agreement clause – Whether collateral agreement is precluded

2 September 2024

Judgment reserved.

District Judge Vince Gui:

Introduction

1       The Claimant leased a Mini Cooper Clubman (the “Mini Cooper”) from the Defendant for five years. As the lease came to an end, the Claimant sought to buy the vehicle. The Defendant quoted $96,000. The Claimant insisted on buying it at the “estimated residual value” of $50,046 stated in the lease agreement.

2       Did the lease agreement provide the Claimant an option to purchase the Mini Cooper for the residual value stated? This is the central issue to be determined.

Background facts

3       Mr Adrian Tan Cheng Wen (“Adrian”), a good friend of the Claimant, wanted to purchase a Mini Cooper but fell short in securing a favourable loan. He opted to engage a financing company to acquire the vehicle and lease it to him for an extended period.

4       The arrangement was brokered by a car salesman from Eurokars Habitat Pte Ltd (“Eurokars”), Mr Deryl Tan Rong Hwui (“Deryl”), a friend of Adrian. At that point, Adrian had paid a non-refundable $2,000 deposit to Eurokars.

5       The Defendant purchased the Mini Cooper from Eurokars for $147,000 which was funded as follows:

(a)     $127,000 payment made by the Defendant;

(b)     $2,000 deposit made by Adrian; and

(c)     $18,000 further payment made by Adrian.

6       While the Mini Cooper was to be driven by Adrian, he arranged for the Claimant to sign the lease agreement with the Defendant.

7       By an agreement dated 21 December 2017, the Defendant leased the Mini Cooper to the Claimant for five years between 3 January 2018 to 2 January 2023 with a monthly rent of $2,021 (the “Lease Agreement”). Adrian paid the monthly rent to the Claimant for the next five years.

8       As the lease was expiring, Adrian asked the Defendant for the cost to acquire title to the Mini Cooper on 16 December 2022. The Defendant quoted him $96,000 based on the prevailing market price of similar models. Adrian disagreed, saying the amount payable should be $50,046 as reflected on the Lease Agreement. The Defendant replied saying the amount was merely an estimate.

9       Adrian expressed surprise and urged the Defendant to “honour the agreement”. Adrian followed up with a series of messages to which the Defendant did not respond.

10     The Claimant commenced the present action for breach of contract.

Parties’ pleaded case and submissions

11     The Claimant argued that the Defendant granted the Claimant an option to purchase the Mini Cooper for $50,046 being the residual value assessed by the Defendant. The contractual provision relied upon is clause 4 of the Lease Agreement which states:

4. RENTAL PAYMENT DETAILS

Estimated Residual Value at the end of Hirer [sic] (For reference only): SGD$50,046.00.

12     The Claimant argued that the contra proferentum rule should apply against the Defendant since it was the Defendant who drafted the Lease Agreement.

13     Aside from the Lease Agreement, the Claimant also pleaded and argued that parties entered into a collateral agreement on or around 21 December 2017 granting the same option to purchase to the Claimant. He called it a “lease-to-own” arrangement. The Claimant alleged that the said agreement was made between Deryl and the Defendant’s representative called “Pei Lin”.

14     The Defendant denied having granted the alleged option to purchase whether under the Lease Agreement or otherwise. It argued that it could not have done so as such an arrangement would fall foul of a financial regulation which required the hirer to pay 40% of the downpayment in a hire-purchase agreement. Clause 4 of the Lease Agreement also could not be interpreted to grant an option to purchase the Mini Cooper.

Discussion

15     The burden is on the Claimant to establish the alleged agreement. In my view, the Claimant failed to discharge that burden. Clause 4 says nothing about giving the Claimant the option or right to purchase the vehicle at the end of the lease period. It merely expressed the “estimated residual value” of the vehicle at the end of the lease period.

16     The Claimant argued that clause 4 is ambiguous and any ambiguity should be resolved in favour of the Claimant pursuant to the contra proferentum rule. While there may be some ambiguity in the words “estimated residual value”, the ambiguity only relates to what sort of value it represents. It could mean the estimated scrap value according to the Defendant or the estimated market value of the Mini Cooper. The contra proferentum rule does not give the Claimant the right to re-write the clause into something entirely different. If clause 4 was meant to confer the Claimant an option to purchase the Mini Cooper, it would have used words to that effect. Clause 4 however did not say that. It simply informed parties that the Mini Cooper was “estimated” to have a “residual value” of $50,046 at the end of the lease.

17     The Claimant also highlighted that clause 4 was inserted into the agreement at the Claimant’s insistence, as the Claimant wanted the option to purchase the Mini Cooper at the end of the lease for his own use. He said that was why he was the named hirer whereas Adrian was the named driver. He may well have thought of buying the vehicle. But if he truly wanted the unilateral right to purchase the vehicle, he ought to have insisted that the Defendant include a term to expressly confer him the right to do so. The Defendant explained that it could not have granted such right to the Claimant as it would have fallen foul of the regulations of the Monetary Authority of Singapore (“MAS”) that was applicable to hire-purchase agreements. MAS Notice 642 stipulated that hirers must furnish a minimum 40% downpayment for vehicles of this sort. The Claimant did not furnish the requisite downpayment. He was therefore not legible for hire-purchase. This was why he opted to lease the vehicle instead. The Defendant submitted that it declined to grant the Claimant an option to purchase at the end of the lease as that would turn the lease into a hire-purchase arrangement that was prohibited by the said regulation.

18     The Defendant relied on the case of Hitachi Capital Asia Pacific Pte Ltd v Goh Wee Ling Diana [2020] SGDC 231 which examined a clause similarly worded as clause 4. There, the court held that the clause “Estimated Residual Value (For reference only)” did not mean that the leasor was bound to sell to the lessee at that price. The court reasoned that the words “For reference only” indicates that it was open to the leasor to accept an offer from the lessee to purchase the vehicle at the end of the lease. It was not a binding option for a fixed sum.

19     In my view, clause 4 was at best an agreement to agree. Parties may have inserted this clause in contemplation that the Claimant might want to purchase the Mini Cooper from the Defendant at the end of the lease. The estimated residual value was indicated to give the Claimant an idea of roughly how much it would cost. It was a “lease-to-own” arrangement in that sense. But it was by no means a done deal. The final price, assuming the Defendant agrees to sell, was a matter subject to further discussion and agreement. The words “estimated” and “for reference only” underscore parties’ intention for the residual value to be non-binding. Since there was no agreement on the final purchase price, the Defendant was entitled to quote different amount based on the prevailing market conditions. As it turned out the Certificate of Entitlement (“COE”) prices skyrocketed in the subsequent years, resulting in a corresponding uplift in the market value of second-hand cars. In this regard, the Defendant highlighted that second-hand cars of the same model and vintage were being listed for sale at prices ranging from $99,800 to $102,002 on Sgcarmart.com, an online marketplace for second-hand cars. The previous estimate of $50,046 was no longer viable. It was in those circumstances that the Defendant quoted $96,000.

20     Aside from clause 4, the Claimant alleged in the alternative that parties entered into a collateral agreement for the Claimant to purchase the Mini Cooper at the end of the lease. In my view, this allegation fails for several reasons.

21     First, the allegation is not borne out by the contemporaneous evidence. Deryl who brokered the arrangement with the Defendant, testified that he did discuss the option of purchasing the Mini Cooper at the end of the lease. But the WhatsApp correspondence between him and the Defendant’s representative did not detail any discussion on the alleged option.

22     Second, even on Deryl’s evidence that they did discuss such an arrangement, parties did not reach an agreement on the purchase price. He said the Defendant’s representative told him the final purchase price would be “slightly different” from the amount stated in clause 4. A contract cannot be formed without certainty of terms.

23     Third, the Lease Agreement contains an entire agreement clause. Clause 27 provides that the agreement “embodies all the terms and conditions agreed upon” and “constitutes the final agreement between parties and supersedes and cancels in all respects all previous agreements … whether written or oral”. Having agreed to this clause, it is incongruous for the Claimant to now assert that an oral agreement supposedly existed alongside the Lease Agreement. As the Court of Appeal explained in Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR(R) 537 at [26] (citing Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep 611 (at [7]–[8])):

The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth, and finding, in the course of negotiations, some (chance) remark or statement (often long-forgotten or difficult to recall or explain) upon which to found a claim, such as the present, to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that, accordingly, any promises or assurances made in the course of the negotiations (which in the absence of such a clause, might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given effect in that document.

… [T]he formula used is abbreviated to an acknowledgment by the parties that the agreement constitutes the entire agreement between them. That formula is, in my judgment, amply sufficient to constitute an agreement that the full contractual terms to which the parties agreed to bind themselves are to be found in the agreement and nowhere else. That can be the only purpose of the provision.

[emphasis in original]

24     The Court of Appeal concluded that an appropriately worded provision would be upheld it if clearly purports to deprive any collateral agreement of legal effect.

25     The wording of clause 27 evinces parties’ intention to be bound by the terms of the Lease Agreement and not a prior agreement. The High Court recently found this to be the case for a similarly worded clause in BGC Partners (Singapore) Limited and another v Sumit Grover [2024] SGHC 206 at [28] – [30]. Similar observations were made in Cradle Wealth Solutions Pte Ltd v MTN Consultants & Building Management Pte Ltd and another [2023] SGHC 307 at [83]. The Claimant did not advance any argument or authority that shows otherwise.

26     It remains for me to briefly address the Claimant’s submission that the Court should draw an adverse inference against the Defendant for failing to call its representative with personal knowledge of the disputed facts as witnesses. The Claimant submitted that its sole witness was a representative with no personal knowledge of the disputed transaction, and that the Defendant should have called the representative who brokered the Lease Agreement with Deryl by the name of “Pei Lin”.

27     I am unable to accept the Claimant’s submission. I agree with the Defendant’s submission that the onus is on the Claimant to call Pei Lin since he is the one alleging that the alleged agreement took place between Deryl or Pei Lin. It is trite that he who alleges must prove. As far as the Defendant is concerned, the Defendant denies such agreement ever existed, and is prepared to rely on the Lease Agreement which more than adequately shows that no such option was granted to the Claimant. It is for the Claimant to lead rebuttal evidence, and he failed to do so.

Conclusion

28     For these reasons, I dismiss the claim.

29     I will hear parties on costs (including disbursements) and consequential orders. Parties are to file written and reply submissions within five and ten days of this judgment respectively, each limited to 10 pages.

"},{"tags":["Criminal Law – Statutory offences – Computer Misuse Act – Unauthorised disclosure of access code","Criminal Law – Statutory offences – Moneylenders Act – Harassing borrower on behalf of unlicensed moneylender","Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending","Criminal Procedure and Sentencing – Sentencing – Young offenders"],"date":"2024-08-26","court":"District Court","case-number":"District Arrest Case No 904508 of 2024 and 2 Others","title":"Public Prosecutor v Cheah Bernice","citation":"[2024] SGDC 220","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32039-SSP.xml","counsel":["Janessa Phua (Attorney-General's Chambers) for the Public Prosecutor","Asoka Markandu (Anitha & Asoka LLC) for the Accused."],"timestamp":"2024-09-03T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Cheah Bernice

Public Prosecutor v Cheah Bernice
[2024] SGDC 220

Case Number:District Arrest Case No 904508 of 2024 and 2 Others
Decision Date:26 August 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Janessa Phua (Attorney-General's Chambers) for the Public Prosecutor; Asoka Markandu (Anitha & Asoka LLC) for the Accused.
Parties: Public Prosecutor — Cheah Bernice

Criminal Law – Statutory offences – Computer Misuse Act – Unauthorised disclosure of access code

Criminal Law – Statutory offences – Moneylenders Act – Harassing borrower on behalf of unlicensed moneylender

Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending

Criminal Procedure and Sentencing – Sentencing – Young offenders

26 August 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       The accused, Cheah Bernice (“Ms Cheah”), a 21-year-old Singaporean has pleaded guilty to a charge of unauthorised disclosure of access code under section 8(1)(a) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”) by disclosing her Singpass credentials to an acquaintance. She has also consented to have two charges under the Moneylenders Act (Cap 188, 2010 Rev Ed) (“MLA”) taken into consideration for the purpose of sentence (“TIC”). These relate to the offences of harassing a borrower on behalf of an unlicensed moneylender under section 28(2) of the MLA (“MLA harassment offence”) and assisting another in unlicensed moneylending under section 14(1) of the MLA (“MLA assistance offence”). She had committed the offences in 2021 when she was 18 years old.

2       For the CMA offence, Ms Cheah can be punished with a fine not exceeding S$10,000 and/or to imprisonment for a term not exceeding three years under section 8(2) of the CMA. The prosecution has sought to impose a sentence of ten to 14 weeks’ imprisonment on Ms Cheah based on the harm caused and her moderate culpability in the offence. The defence has submitted for a short custodial term of four to six weeks’ imprisonment on account of the prejudicial delay in prosecution, Ms Cheah’s demonstrative rehabilitative potential during the intervening period of delay, her youth and absence of criminal antecedents, as well as her remorse. I have reserved judgment on sentence after convicting Ms Cheah on 14 August 2024. I now impose a sentence of eight weeks’ imprisonment on Ms Cheah and set out the reasons for my decision.

Issues to be decided

3       The issues I have to decide in this case are:

(a)     first, whether I should call for a pre-sentencing report to assess Ms Cheah’s suitability for probation;

(b)     second, the sentencing principle(s) that are operative in this case; and

(c)     third, whether imprisonment should be considered as a sentencing option and if so, the length of the custodial term.

4       I resolve the issues in this way:

(a)     I should not call for a probation pre-sentencing report because the severity of the CMA offence rules out probation as a viable or realistic sentencing option;

(b)     the dominant sentencing principle is general deterrence, displacing the presumptive primacy of rehabilitation for youthful offenders aged 21 or below at both the time of the offence and the time of sentencing, given the prevalence of scams in recent years and the concomitant need to disincentivise younger money mules who are lured into facilitating the criminal activities of scam syndicates;

(c)     since probation is ruled out as a sentencing option because of the severity of the CMA offence (and community sentences are therefore also ruled out by extension) and Ms Cheah is not eligible for reformative training (“RT”) because she has already turned 21 years old at the time of her conviction, imprisonment should be considered as a sentencing option. It is the appropriate punishment to press into service to meet the ends of both deterrent and retributive justice required in this case; and

(d)     given that RT is not available to me as a sentencing option and imprisonment is decidedly the more severe and also punitive sentence between the two, the appropriate custodial term lies between the parties’ positions and has to be calibrated accordingly. To be sure, I do not find any prejudicial delay in prosecution that warrants such calibration.

Procedural history of case

5       Before I set out my analysis of the issues, I outline the procedural history of this case by way of context. The matter was first fixed before me to take Ms Cheah’s guilty plea on 2 August 2024. The prosecution originally proceeded with the two MLA harassment and assistance charges against Ms Cheah and for the CMA charge to be TIC. During this mention, the prosecution sought a two-week adjournment to formally convey its revised position to the defence by 8 August 2024 to proceed with the CMA charge against Ms Cheah and to TIC the MLA charges instead, and that consequently, the prosecution would not object to a probation pre-sentence report being called. On 8 August 2024, the prosecution filed an amended statement of facts and its revised address on sentence to that effect.

6       When the matter next came before me on the morning of 14 August 2024, the prosecution sought a further three-week adjournment for an internal review of its sentencing positions for all similar cases. Understandably, the defence objected having formally accepted the prosecution’s revised offer that was duly conveyed on 8 August 2024 along with its sentencing position. Given how the matter has progressed, I decided I should proceed to take the plea but afforded time to the prosecution and adjourned the mention to the afternoon. Subsequently, in the afternoon just before the mention, the prosecution filed a revised address on sentence seeking its present proposed imprisonment term for Ms Cheah instead.

Analysis of issues

7       I analyse in turn the issues on which my sentencing decisions rests.

8       I preface my analysis with two preliminary observations:

(a)     first, the fact of plea, charge or sentence bargaining between the prosecution and the defence does not feature in my deliberation. I express no view on how such bargaining eventually panned out as this lies outside the court’s province; and

(b)     second, although the prosecution filed two revisions to its address on sentence, first on 8 August 2024, and subsequently on 14 August 2024, this was before I took Ms Cheah’s plea and the prosecution is therefore open to change its position before that time.

Issue 1: Probation pre-sentencing report should not be called because probation is not viable or realistic given severity of CMS offence

9       I decide that I should not call for a probation pre-sentencing report. Even though the basic criteria for probation are met in this case, it is not a viable or realistic sentencing option, given the severity of the CMA offence (coupled with the two serious MLA offences that are TIC).

10     I am cognisant that when a court deals with sentencing an offender who is aged 21 or below, it should generally call for a probation pre-sentencing report before imposing sentence, and should not embark on an assessment of the offender’s suitability for probation without the benefit of such a report: A Karthik v PP [2018] 5 SLR 1289 at [20]. However, a court may, in general, sentence such a youthful offender without obtaining a probation pre-sentencing report if the basic prerequisites for probation to be considered are not met, or if the court is clearly satisfied that probation is not a viable or realistic option on the facts of the case: A Karthik at [21].

Probation not a viable or realistic sentencing option

11     In this case, probation may be considered at law since the CMA offence is not one for which its sentence is “fixed by law”: section 5(1) of the Probation of Offenders Act 1951 (2020 Rev Ed) (“POA”). Its sentence is not fixed in quantum and in type; the court can impose a fine and/or imprisonment and has the discretion to decide on the quantum of the fine and/or imprisonment to be imposed. The proviso to section 5(1) of the POA, in particular proviso (a) that requires Ms Cheah to be above 16 but below 21 years old at the time of her conviction, also does not apply as the CMA offence is not punishable with either a specified minimum sentence or mandatory minimum sentence. Proviso (b) to section 5(1) of the POA relating to previous convictions does not apply to Ms Cheah because she is a first offender.

12     Even though this case satisfies the basic criteria for probation, I must still make a preliminary assessment whether probation is a realistic option on the facts of the case. If the accused is young (that is, between 16 and 21 years old), a first offender and convicted of a relatively less serious crime, a court should order a probation report: Wong Shan Shan v PP [2008] SGHC 49 at [21]. In exceptional circumstances, an accused, who appears, on the face of it, suitable for probation (in that he satisfies the basic criteria for probation) can nonetheless be given a custodial sentence without the court ordering a probation report: Wong Shan Shan at [23].

13     Given the severity of the CMA offence (coupled with the serious MLA offences that are TIC), I decide that probation is not a viable or realistic sentencing option in this case; this case falls squarely within the exceptional circumstances where the court can impose a custodial sentence without ordering a probation report.

CMA offence is severe

14     In assessing the severity of the CMA offence, comparisons will undoubtedly be drawn with the offences faced by the youthful offenders in A Karthik and Wong Shan Shan:

(a)     the offender in A Karthik faced one count of abetting the offence of cheating under section 420 of the Penal Code punishable with imprisonment that may extend to 10 years and can be coupled with a fine. He was 17 at the time of the offences and 22 at the time of sentencing; whereas

(b)     the offender in Wong Shan Shan faced:

(i)       two counts of vandalism under section 3 of the Vandalism Act (Cap 341, 1985 Rev Ed) punishable with a fine not exceeding S$2,000 or to imprisonment not exceeding three years;

(ii)       two counts of intentional harassment under section 13A(1)(a) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cp 184, 1997 Rev Ed) punishable with a fine not exceeding S$5,000; and

(iii)       eight other vandalism counts TIC.

She was 19 years old at the time of the offences and at the time of sentencing.

15     In this case, Ms Cheah was 18 years old at the time of the CMA offence and 21 years old at the time of sentencing. The maximum punishment for the CMA offence is a fine not exceeding S$10,000 and/or imprisonment not exceeding three years. I have said elsewhere that the consideration of the nature and gravity of the offence is necessarily a fact-specific exercise: PP v Saiful Rizam bin Assim [2014] 2 SLR 495 at [41]; the severity of the CMA offence must be properly appreciated in its current context of the prevalence of scams and proliferation of money mules set against their upward trajectories over the years: PP v Goh Hai Shan [2024] SGDC 178 at [8] and [9], and cannot be solely determined by its maximum penalties: PP v Hari Suvvan, unreported, DAC 908777 of 2024, at [8].

16     I am fortified in my view by the observation of the Sentencing Advisory Panel in its recent published guidelines for scams-related offences[note: 1] (“SAP Guidelines”) at [7(c)] that:

[F]ines, probation and community sentences are generally not appropriate [for scams-related offences]. Imprisonment or reformative training, whichever is more appropriate should be considered given the need for deterrence and the public interest in suppressing scams. This applies to all offenders (even if below the age of 21) except juvenile offenders dealt with in the Youth Court. [Emphasis in original]

The panel’s observation is pertinent in this case for three reasons:

(a)     first, the SAP Guidelines apply to the new section 8A of the CMA 1993 (2020 Rev Ed). The CMA offence that Ms Cheah had committed and has been convicted for is under the predecessor section with the same prescribed punishment for first offenders;

(b)     second, the SAP Guidelines recommend a sentencing approach for scams-related offences. The nature of Ms Cheah’s CMA offence is scams-related, where a victim’s bank account was used to effect an unauthorised transfer to a bank account that was opened in Ms Cheah’s name using the Singpass credentials she had previously disclosed; and

(c)     third, the two-fold concerns of the number of scam cases and the amounts lost to scams were just as relevant, if not more so, in 2021. In 2021, the scam situation was dire, seeing an exponential uptick in both. The total number of reported scam cases rose by 52.9% to 23,933 cases as compared to 2020 and made up of half of the overall crime in 2021, up from 42% in 2020.[note: 2] The total amount lost to scams increased by a whopping 137.9% to S$632 million as compared to 2020.[note: 3]

17     For completeness, I note that both of Ms Cheah’s TIC offences are more severe than the CMA offence in terms of their prescribed punishments:

(a)     For the MLA harassment offence, the prescribed punishment under section 28(2)(a) of the MLA is mandatory imprisonment not exceeding five years that can be coupled with a specified minimum fine of not less than S$5,000 and not more than S$50,000. Because property damage was caused, mandatory caning of not less than three and not more than six strokes of the cane is also prescribed by section 28(3)(b)(i) of the MLA. Although Ms Cheah cannot be caned, imprisonment of not more than 12 months can be imposed in lieu of caning under section 325(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

(b)     For the MLA assistance offence, it is a mandatory minimum fine of S$30,000 and up to S$300,000 and mandatory imprisonment for a term not exceeding four years.

18     Both offences prescribe a specified minimum sentence and mandatory minimum sentence respectively: Mohamad Fairuuz bin Saleh v PP [2015] 1 SLR 1145 at [18] and [48]. Proviso (a) to section 5 of the POA therefore applies and since Ms Cheah has turned 21 at the time of her conviction, probation would therefore not have been an available sentencing option for both offences if they were proceeded with against Ms Cheah.

Reformative training not available as sentencing option

19     The sentence of RT is also not an available sentencing option for the CMA offence for the same reason that Ms Cheah is required to be above 16 but under 21 years old at the time of her conviction: section 305(1)(a) of the CPC. For this reason, while I have applied the SAP Guidelines for their general principles at [16], I am more circumspect about applying them beyond its conceptual approach and framework to the CMA offence, as though RT were available, duly considered, and ruled out as a sentencing option, landing with imprisonment as the more appropriate sentencing option between the two. The actual imprisonment term will have to be calibrated accordingly to account for the fact that it is the only sentencing option that is available to Ms Cheah in her particular circumstances: see [35(c)], below.

Issue 2: Deterrence as dominant sentencing principle

20     If an offender is 21 years old or below at both the time of the offence and the time of sentencing, the law takes the presumptive view that the primary sentencing consideration in such cases will generally be rehabilitation, because both the retrospective and prospective rationales underlying such presumptive primacy of rehabilitation would apply: A Karthik at [44].

21     In this case, Ms Cheah was 18 years old at the time of the CMA offence and she is 21 years old at the time of sentencing. However, the primacy of rehabilitation is diminished, if not eclipsed, by considerations of deterrence and retribution because the CMA offence is serious and the harm caused severe: PP v Koh Wen Jie Boaz [2016] 1 SLR 334 at [30].

22     General deterrence is the operative sentencing consideration in this case. The CMA offence is serious because it contributed to the burgeoning number of scams and the attendant losses in 2021: see [16(c)], above. Over the past five years, the number of reported scam cases increased by more than seven-fold, while the amount lost to scams have quadrupled: SAP Guidelines at [5]. There is an imperative need to deter like-minded offenders, in particular youthful ones who are being targeted, from equipping scam syndicates with an effective layering tactic in the form of an intricate network or web of bank accounts to perpetrate scams whose proceeds are untraceable and unrecoverable: Goh Hai Shan at [9]. The opportunity cost of crime must be sufficiently high so that these targeted youths think long and hard before becoming money mules for easy money. The consequent blockage of easy access to new and existing bank accounts effectively cripples syndicate activity by disrupting the crucial layered network built on the back of these accounts though which proceeds of scams are typically laundered: SAP Guidelines at [6].

23     The harm caused in this case is also quite severe. The values transacted through Ms Cheah’s bank account that was eventually opened using her Singpass credentials are not only, in and of themselves, quantitively significant; crucially, they represent criminal benefits flowing to the perpetrators and correspondingly actual losses. It is not a victimless crime; losses can be devastating to victims and can lead to significant psychological harm; they can also lead to the erosion of public trust in public and financial institutions and the use of electronic transactions: SAP Guidelines at [7(b)]. Indeed, there is at least one identified victim who reported an unauthorised transfer of a significant value to Ms Cheah’s bank account.

Issue 3: Imprisonment as appropriate sentence to meet ends of deterrent and retributive justice

24     Probation is ruled out as a sentencing option because of the severity of the CMA offence; so are community sentences. Ms Cheah is not eligible for reformative training because she has already turned 21 years old at the time of her conviction. As such, I avail myself of imprisonment as a sentencing option. It is the appropriate punishment to press into service to meet the ends of both deterrent and retributive justice in this case.

25     While I am more circumspect in adopting the actual starting point sentence and uplifts recommended in the SAP Guidelines because the imprisonment term will need to be calibrated accordingly to take into account that the fact that RT, which is the other alternative sentencing option suitable for CMA offences, is not available to Ms Cheah in this case: see [35(c)], below, I adopt its general approach of considering the relevant offence-specific and offender-specific factors present in a case to arrive at the appropriate custodial sentence. I decide that the sentence for this case should lie between the parties’ respective sentencing positions, that is, ranging from six to ten weeks’ imprisonment.

Offence-specific factors

26     Aggravating offence-specific factors are present in this case, namely:

(a)     actual harm caused to the Singpass system and that a bank account was opened as a result of the disclosure of Singpass credentials;

(b)     actual loss caused as a result of the disclosure of Singpass credentials and that significant funds had also been received or transferred out of the account; as well as

(c)     personal gain that motivated the commission of the CMA offence, coupled with the complicit subjective knowledge that the Singpass credentials disclosed would be used to open bank accounts.

(1)   Actual harm caused to Singpass system and actual loss caused

27     The harm caused in this case is two-fold:

(a)     first, the integrity of the Singpass system was compromised and its inviolability undermined: Goh Hai Shan at [13]; SAP Guidelines at [27]. Ms Cheah also did not take remedial steps even when she subsequently received a notification informing her that the password to her Singpass account has been changed;

(b)     second, a bank account was opened in Ms Cheah’s name as a result of the disclosure of her Singpass credentials. Over three mere days, 19 transactions coursed through the account with a total of S$210,006 debited and S$174,804 credited, with at least one victim reporting that her bank account was used to effect an unauthorised transfer of S$110,000 to Ms Cheah’s bank account.

(2)   Motivated by personal gain and possessed subjective knowledge that Singpass account would be used to open bank accounts

28     Ms Cheah was wholly culpable in that she was motivated to commit the CMA offence for personal monetary gain of S$400, even though she did not eventually receive the gain. She did this because she found herself short on money as she was supporting the family of her former boyfriend. Such circumstances leading to the offence do not make her less culpable.

29     She was complicit in the subjective knowledge that her Singpass account would be used to open bank accounts. She contacted an acquaintance, Sean, to borrow money from him. Sean offered her S$400 for access to her Singpass account and told her that it would be used to open bank accounts. Without enquiring further, she accepted the offer and disclosed her Singpass credentials to Sean. She clearly went into this transaction with her eyes wide open, and later chose to shut them to a real risk that the bank accounts, which were eventually opened, would be used for nefarious purposes. She could not have seriously thought that she would be paid $400 for doing close to nothing. Rather, she was blinded by greed and was quite content to turn a blind eye in return for S$400 come what might.

30     The fact that personal gain motivated the commission of the offence, a bank account was opened as a result of the disclosure of Singpass credentials, significant funds of S$100,000 or more had been received or transferred out of the account, and that there was actual harm or loss as a result of the disclosure of Singpass credentials, are all aggravating offence-specific factors: SAP Guidelines at [28(a)], [28(d)]-[28(f)].

31     As for her financial circumstances that led her to commit the offence, it is trite that financial hardship is generally of little or no mitigatory value; it was also not suggested that Ms Cheah was experiencing exceptional or extreme hardship arising out of genuinely desperate needs and times: SAP Guidelines at [16]. I segue into considering other mitigating (and aggravating) factors personal to Ms Cheah that are present in this case.

Offender-specific factors

32     I consider the aggravating and mitigating weight to be accorded to the other relevant factors personal to Ms Cheah that are present in this case:

(a)     Ms Cheah’s youth is of limited mitigatory weight and a sentence of imprisonment can meet the ends of any residual and un-displaced rehabilitative considerations in this case in any event;

(b)     Ms Cheah should not be regarded as a first offender because she had committed multiple offences; the absence of criminal antecedents is a neutral factor in any event;

(c)     Ms Cheah cannot rely on the delay in prosecution to seek a lenient sentence;

(d)     the rehabilitative progress shown by Ms Cheah during the intervening period of delay is strongly in her favour of a sentence that commensurate with not undoing the progress she has made so far and destroying any hopes of recovery and reintegration;

(e)     the presence of TIC charges in the form of serious MLA offences is aggravating; and

(f)     a full 30% reduction in sentence is accorded to Ms Cheah for her early guilty plea.

(1)   Any residual rehabilitative considerations can be met by a sentence of imprisonment

33     The defence has submitted that Ms Cheah was a youthful offender, being only 18 years old at the time of her offence. The prosecution has also factored this into its sentencing position considerations. I have already dealt with how this the presumptive primacy of rehabilitation, which is driven by this retrospective rationale, is largely, if not fully, displaced by considerations of deterrence and retribution: see [20] and [21], above. There is no suggestion that rehabilitation cannot take place in prison or continue even after imprisonment to meet the ends of any residual rehabilitative considerations: PP v Chong Hou En [2015] 3 SLR 222 at [67].

(2)   Ms Cheah not regarded as first offender and absence of antecedents neutral factor

34     Even though she does not have any prior convictions, I exercise my prerogative not to regard Ms Cheah as a first offender when she has committed multiple offences: Chen Weixiong v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

(3)   Delay in prosecution

35     The defence has argued that it would be fair to impose a more lenient sentence on Ms Cheah on account of the delay in prosecution that had prejudiced her: A Karthik at [49(a)], the gravamen of this being she had committed the offence when she was 18 years old in 2021, but was only charged in 2024 when she turned 21. I hold a different view for three reasons:

(a)     first, the delay was attributed in part to Ms Cheah herself. An offender should generally not be permitted to rely on an inordinate delay in prosecution to seek a lighter sentence if he had been responsible for the delay in any way: A Karthik at [56]. According to the prosecution, Ms Cheah had failed to report for station bail from February to October 2022. In April and May 2022, the investigation officer sent letters requesting to interview her but she did not respond. In July 2022, she was traced to her workplace only to discover that she has been terminated. She remained uncontactable until she eventually showed up for statement-taking on 31 October 2022. I was unpersuaded by the argument that it was not impossible to trace and find Ms Cheah since her bailor was available. Her bailor could have been contacted or paid a visit at her house. The onus is on Ms Cheah to respond and report promptly to the investigation officer when the letters requesting to interview her were served on her registered address;

(b)     second, it is one thing for Ms Cheah to readily admit to the offences; it is quite another to ensure that the investigative and charging process is thorough to establish and ensure that the evidence bears out the offences; and

(c)     third, there was no prejudice because the prosecution has indicated that given the nature of the CMA and MLA offences, a sentence of RT would have been sought in any event if Ms Cheah were charged and convicted before she turned 21. If she were sentenced to RT, this would have entailed at least a minimum incarceration period of six or 12 months, depending on the intensity at which the RT is pegged, coupled with a period of community supervision thereafter. As RT is not available to Ms Cheah as she is 21 at the time of her conviction, the prosecution has sought a term of ten to 14 weeks’ imprisonment in its place. Although juxtaposing RT with imprisonment is not quite comparing like-with-like because imprisonment is fundamentally a very different and more severe punitive sentence, a significant difference in the incarceration periods (ie six- or 12-months’ RT as compared to ten to 14 weeks’ imprisonment) serves to narrow the gulf somewhat. The sentence of imprisonment is further subject to the possibility of remission, whereas the RT is not.

(4)   Rehabilitative progress made during intervening period relevant to sentence

36     Rather than rely on the delay in prosecution to seek a more lenient sentence, the better argument is that the delay in prosecution has afforded the court the opportunity to gauge how Ms Cheah has progressed in her rehabilitation in the intervening period: A Karthik at [49(b)]. Although Ms Cheah is partially responsible for the delay in prosecution and is therefore less justified in relying on such delay to seek a lighter sentence, this does not preclude the court from taking into account any rehabilitative progress that she has made during the period of the delay for the purposes of determining the appropriate sentence to impose: A Karthik at [57].

37     In this regard, I give due weight that she has willed herself to be rehabilitated during this intervening period of almost three years in that:

(a)     she has removed herself from the source of her offending behaviour. Being short on money was only symptomatic of that behaviour; the root cause was the need to support the children and family of her former boyfriend, whom she had since broken up with;

(b)     she is presently enrolled in a foundational diploma course at Kapalan’s Higher Education Academy and also gainfully employed on a part-time basis;

(c)     she supports her family and also helps to take care of her mother who requires regular dialysis; and

(d)     she has not reoffended and remained crime free. This is testament to the strength and effectiveness of the familial support that has kept her on the straight and narrow.

38     I am therefore cognisant that the length of the custodial term should not undermine this rehabilitative progress Ms Cheah has made between the time of her offence and the time of her eventual sentencing: A Karthik at [52]. Too long a period of incarceration has the potential to undo progress she has achieved thus far: Ang Zhu Ci Joshua [2016] 4 SLR 1059 at [9]. When imposing sentence, care must be taken to ensure that it is not such a crushing sentence that could destroy any hope of Ms Cheah’s recovery and reintegration: Ang Zhu Ci at [5].

(5)   Presence of TIC charges aggravating

39     Ms Cheah has two other TIC charges. Because this involve serious MLA offences, this is taken against her because the general effect of TIC charges is to enhance the sentence for the charge that is proceeded with against the accused: PP v UI [2008] 4 SLR(R) 500 at [38].

(6)   Full 30% reduction in sentence due to early plea

40     The parties agree that Ms Cheah should be accorded the full 30% reduction in sentence for her early guilty plea. I too agree because I am persuaded that this is motivated by genuine contrition as is consistent with her earlier remorseful behaviour to readily admit to her offences.

Sentence of eight weeks’ imprisonment to be imposed

41     I have cautioned elsewhere against using Goh Hai Shan to extrapolate the length of custodial sentences in similar cases: Hari Suvvan at [17]. Goh Hai Shan should properly be regarded as an outlier case because of the sheer number and size of the transactions as well as the astronomical value of criminal proceeds involved. It should not straitjacket any higher or lower limits to sentencing the same or similar CMA offences. This is in the same vein as the caution I sounded in Goh Hai Shan itself at [38] against attempting to use the size of criminal proceeds in previous cases to arithmetically determine the sentence for the cheating offence in that case. Attempts to discern or insistence on such linear correlations will be to miss the woods for the trees and will often be unfruitful.

42     As I understand it, the usual imprisonment term sought for a CMA offence pre-SAP Guidelines is between three to three-and-a-half months. This is represented by the higher end of the prosecution’s proposed sentencing range of ten to 14 weeks’ imprisonment in this case. On the other hand, the defence’s proposed sentencing range of four to six weeks’ imprisonment does not quite give sufficient deterrent bite. The appropriate sentence is closer to between six to ten weeks’ imprisonment. The upshot of balancing the offence-specific and offender-specific factors lands on the side of imposing an imprisonment term of eight weeks on Ms Cheah:

Offence-specific factors

Offender-specific factors

Actual harm to Singpass system (+)

Youth (x)

Actual loss caused (S$110,000) (+)

(with significant funds received or transferred out of account)

First offender (x)

Absence of criminal antecedents (x)

Bank account opened as a result disclosure of Singpass credentials (+)

(with subjective knowledge that Singpass account would be used to open bank accounts)

Delay in prosecution (x)

Rehabilitative progress shown during the intervening period of delay (-) (-)

Personal gain (+)

TIC charges (+)

Financial circumstances leading to offence (x)

Early guilty plea (-)



43     I am cognisant that eight weeks’ imprisonment is half of the starting sentence recommended in the SAP Guidelines for an archetypal CMA offence involving an accused person who has given an early indication of guilty plea. While I have adopted the principles and general sentencing approach in the SAP Guidelines, I am circumspect in applying the recommended starting point sentence and uplifts for three reasons:

(a)     first, this is a transitional case in that the SAP Guidelines were published last week during the course of my deliberations after the parties have already submitted on sentence;

(b)     second, given the procedural history of this case: see [5] and [6], above, I do not think Ms Cheah should be made to bear another development in the case, including the new sentencing approach recommended by the SAP Guidelines; and

(c)     third, given that RT is not available as a sentencing option and the strong rehabilitative progress that she has made during the intervening period of delay, I do not think an imprisonment term that is close to six months should be visited upon Ms Cheah. The effects of a two-month incarceration period under a punitive sentence should not be understated in the absence of a rehabilitative-punitive one. However, it is necessary, fair and measured.

44     It stands to reason that the sentence for this case should be confined to its unique facts.

Conclusion

45     I therefore sentence Ms Cheah to an imprisonment term of eight weeks’ imprisonment with effect from today.

46     In summary:

(a)     I decide not to call for a probation pre-sentencing report because the severity of the CMA offence rules out probation as a viable or realistic sentencing option;

(b)     The operative sentencing principle is general deterrence and this displaces the presumptive primacy of rehabilitation for youthful offenders aged 21 or below at both the time of the offence and the time of sentencing. There is a need to disincentivise youthful offenders from being lured to become money mules who facilitate syndicated scam operations and to stem the rising tide of scams;

(c)     As probation is ruled out and RT is also not available as a sentencing option, imprisonment is considered and is an appropriate sentencing option to press into service to meet the ends of deterrent and retributive justice as required in this case; and

(d)     I adopt the principles and general sentencing approach of the SAP Guidelines, but exercise circumspection when applying the recommended starting sentence and uplifts because the sentence of imprisonment in this case has to be calibrated to take into account the fact that a punitive sentence is resorted to at first instance in the absence of a rehabilitative-punitive sentence.

47     I commend parties for their industry and diligence, in particular Mr Asoka, who took on this case as a criminal legal aid scheme matter. While I may not have agreed with all of his submissions, he has discharged his duties competently and with distinction. I also acknowledge the contributions and efforts of Singapore Management University’s Project Lighthouse, from whom I understand Mr Asoka has derived much assistance for his case.

[note: 1]Sentencing Advisory Panel, “Guidelines for Scams-Related Offences” <https://www.sentencingpanel.gov.sg/files/Guidelines/Guidelines_For_Scams_Related_Offences.pdf> (21 August 2024) at para 7(c).

[note: 2]Singapore Police Force, “Annual Scams and Cybercrime Brief 2021” <https://www.police.gov.sg/-/media/C167DEC20A18405CA4AFFC79D0B3240C.ashx> (16 February 2022) at para 6.

[note: 3]Singapore Police Force, “Annual Scams and Cybercrime Brief 2023” <https://www.police.gov.sg/-/media/8F06592D8FBE475C8D2B92EB3BFFE7FC.ashx> (18 February 2024) at table titled “Total Amount Lost to All Scams (in millions) at para 3.

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Public Prosecutor v Nachiappan Muniyandi
[2024] SGDC 218

Case Number:District Summons Case No 900984 of 2021
Decision Date:23 August 2024
Tribunal/Court:District Court
Coram: Koo Zhi Xuan
Counsel Name(s): Gregory Gan and Khong Ziwei (Ministry of Manpower) for the Prosecution; Pratap Kishan and Jasmine Yan (Kishan Law Chambers LLC) for the Accused.
Parties: Public Prosecutor — Nachiappan Muniyandi

Criminal Law – Statutory Offences – Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) – Whether safety assessor who signed permit-to-work for excavation negligent

Criminal Procedure and Sentencing – Statutory Offences – Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) – Application of Mao Xuezhong to safety assessor of permit-to-work

23 August 2024

Judgment reserved.

District Judge Koo Zhi Xuan:

Introduction

1       Nachiappan Muniyandi (“the Accused”) faces a single amended charge under s 15(3A) read with s 20 of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”). The amended charge against the Accused alleges that he had, on 15 October 2018, negligently done an act which endangered the safety of others at a worksite located at NDC233 – Route A, Labrador Villa Road (“the Worksite”), by signing a permit-to-work (“PTW”) for excavation works (“P2”) as a safety assessor without conducting the requisite checks to satisfy himself that all reasonably practicable measures would be taken to ensure the safety and health of the persons who would be carrying out excavation work exceeding 1.5 metres in depth for the period of 16 to 22 October 2018 at the Worksite. The Accused claimed trial and was tried jointly with Arunasalam Arul (“the Co-Accused”),[note: 1] who was charged under the same provision for passing P2 after it had been signed by the Accused to the authorised manager, Leow Chee Yong Desmond (“PW4”), to sign, when he knew that the Accused had not conducted the requisite checks to ensure that the PTW pre-requisites had been complied with.

2       At the end of the trial, I convicted the Accused on the amended charge and acquitted the Co-Accused. My oral grounds for acquitting the Co-Accused are reproduced in the annex of this judgment.

3       In this judgment, I set out the facts and the reasons why I had convicted the Accused (which incorporate my oral judgment delivered on 30 May 2024), before I explain my decision on sentence.

Background Facts

The relevant personnel and material documents

4       Besides the Accused and the Co-Accused, who were employed by Hi Power Pte Ltd (“Hi Power”) at the material time, the relevant personnel in this case are:

(a)     the operations director of Hi Power, Goh Kar Wee (“PW2”);

(b)     the safety manager of Hi Power, Johnny Tang (“PW3”);

(c)     the project manager who signed off as the “authorized manager” on P2, Leow Chee Yong (“PW4”);

(d)     the site supervisor who signed off as the “supervisor” on P2, Syed Moulana (“Syed”). Syed did not testify in the trial, as he had left the jurisdiction by the time investigations had commenced;

(e)     the senior investigating officer of the Ministry of Manpower assigned to the present case, Mohamed Aidil Bin Mohamed Riduan (“PW9”); and

(f)     a former managing director of Hi Power, Michael Lim (“DW1”).

5       PW9 recorded the following statements from the Accused and the Co-Accused:

(a)     The Accused’s investigation statement dated 15 November 2018 (“P5”);

(b)     The Co-Accused’s investigation statement dated 18 February 2019 (“P6”);

(c)     The Co-Accused’s investigation statement dated 20 February 2019 (“P7”);

(d)     The Co-Accused’s cautioned statement dated 28 December 2021 (“P31”); and

(e)     The Accused’s cautioned statement dated 28 December 2021 (“P32”).

6       The amended charge against the Accused relates to what he had failed to do before signing P2 as a safety assessor on 15 October 2018. P2, which is a weekly PTW which covered excavation works to be done at the Worksite between 16 to 22 October 2018, is reproduced as follows:

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The undisputed facts

7       At the material time, Hi Power was involved in supplying and installing power cables, auxiliary cables, and accessories at the Worksite.

8       Investigations reveal that on 20 October 2018, at around 1115 hours, a fatal accident occurred at the Worksite when four workers employed by Hi Power were carrying out trench excavation works at one “Pit B”. The four workers include Arokyasamy John Kennedy (“the Deceased”), and Mani Vinothkumar (“the Injured Victim”). They were in Syed’s team, and Syed was their supervisor.

9       Investigations reveal when the trench at “Pit B” was excavated to a depth of 2.5 meters, the Deceased and the Injured Victim had gone inside the trench to physically install timber shoring support. While they were waiting for a timber shoring support to be lowered into the trench by a hydraulic excavator, one side of the trench wall collapsed onto them, resulting in the death of the Deceased and injuries sustained on the Injured Victim.

10     Investigations revealed that the soil most likely collapsed as:

(a)     Shoring was not provided at depth of 1.5 meters. When the accident occurred, the depth of the trench was 2.5 meters.

(b)     There were two trenches located about a meter away from Pit B, which were excavated to lay cables and subsequently backfilled on 9 and 13 October 2018 by another company. This could have caused the surrounding soil near/at Pit B to be disturbed and not fully compact.

11     On 8 March 2022, PW4 pleaded guilty and was convicted of a charge under reg 15(3) read with reg 15(1) of the Workplace Safety and Health (Construction) Regulations 2007 (“Construction Regulations”), for failing to exercise all due diligence when performing his functions as a project manager in relation to the issuance of P2, by issuing P2 without taking adequate steps to satisfy himself that:

(a)     there has been proper evaluation of the risks and hazards involved in carrying out excavation works based on available information;

(b)     no incompatible work which may pose a risk to safety and health of other persons at work in the worksite will be carried out at the same time in the same vicinity as the excavation works;

(c)     all reasonably practicable measures have been taken to ensure the safety and health of the persons who will be carrying out the excavation works; and

(d)     all persons carrying out excavation works are informed of the hazards associated with it.

12     PW4 was fined $9,000 for the aforementioned offence.

13     Hi Power, on 11 March 2022, pleaded guilty and was convicted of a charge under Section 12(1) of the WSHA for failing to take, so far as was reasonably practicable, such measures as were necessary to ensure the safety and health of its employers; to wit, it failed to:

(a)     implement the control measures identified in its Risk Assessment (“RA”) for excavation works;

(b)     implement safety measures identified in its Safe Work Procedures for excavation works; and

(c)     ensure that its employees were adequately trained to carry out excavation works.

14     Hi Power was fined $280,000 on 11 March 2022.

15     In the present trial, it was undisputed that:

(a)     Hi Power had deployed the Accused and the Co-Accused to work at the Worksite, and they had a duty under s 15(3A) of the WSHA not to, without reasonable cause, do any negligent act which endangered the safety or health of others. At the material time, the Accused was employed as a safety coordinator in Hi Power.

(b)     Under reg 12(1) of the Construction Regulations, no excavation and trenching work exceeding 1.5 metres in depth was to be carried out without a PTW.

(c)     While Hi Power had in place a PTW system for the excavation works in the Worksite as part of its RA, some of the pre-requisites in P2, though marked as checked (see above at [6]), were not implemented. The workers were not briefed on the RA, the work zone area was not properly barricaded with a warning sign, approved earth control measures were not used, and shoring was not done according to the Professional Engineer’s design.

(d)     On 15 October 2018, the Co-Accused handed P2 which was meant for excavation works scheduled for the morning shift of 16 Oct 2018, to the Accused, who was working the night shift of 15 October 2018, for him to sign as a safety assessor.

(e)     The Accused signed P2 on the night of 15 October 2018.

(f)     The Co-Accused subsequently passed P2 to PW4, who then signed and issued it as the project manager, which on its face indicated that excavation works could commence from 16 to 22 October 2018 at the Worksite.

(g)     Despite P2 being issued in respect of the excavation works, investigations reveal that no PTW checks were carried out before commencement of the excavation works on the day of the accident (ie, 20 October 2018).

The procedural history and the amendments to the charge

16     At the close of the Prosecution’s case, I found that there was insufficient evidence to establish that the alleged failures of the Accused and the Co-Accused (which were allegedly committed on 15 and 16 October 2018) had caused or contributed to the accident on 20 October 2018. Essentially, the Prosecution’s case at that juncture was that the Accused’s failure had resulted in the relevant workers not being briefed on the RA, prior to the time of the accident, which contributed to the workers engaging in unsafe practices when they were conducting the excavation. The Prosecution however failed to explain or deal with the crucial question of how exactly the Accused, as a safety assessor, ought to have ensured that the RA briefing was indeed conducted by Syed, the supervisor. When asked to point to the relevant evidence in the notes of evidence on this critical point, the Prosecution was unable to do so. In fact, the only evidence on this point was PW9’s tesitmony that all the safety assessor had to do in relation to this “check” was a documentary one – viz, to ensure that the daily toolbox meeting record on 20 October 2018 was in order. In the present case, it was not disputed that the toolbox meeting record on 20 October 2018[note: 2] was in fact filled up and signed, with the “hazards and risk assessment briefing” portion ticked:

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17     It was also not clear on the evidence that: (a) the workers conducting the excavation were unaware of the contents of the PE design; (b) the relevant RA briefing was not conducted; and (c) had the workers been briefed on the RA document, they would have been aware of the need to follow the PE design. The questions posed by the Prosecution to purportedly establish these points during the trial did not go far or deep enough to clearly establish them. More critically, PW9 was not able to articulate exactly how the fulfilment of duties by the Accused and the Co-Accused would have prevented the accident on 20 October 2018 from happening.[note: 3] In the circumstances, I was of the view that there was simply insufficient evidence which show that the Accused’s alleged failure contributed to the death of the Deceased and injuries sustained by the Injured Victim. This was eventually conceded by the Prosecution, and it then orally applied for “the charges to be amended to remove references to contribution”.[note: 4]

18     In the circumstances, I exercised my discretion to amend the initial charge and delete references to the alleged act of the Accused having contributed to the death of the Deceased and injuries sustained by the Injured Victim, as follows (with the differences underlined):

Initial charge filed against the Accused at the start of the trial

Amended charge against the Accused at the close of the Prosecution’s case

on or about 16 October 2018, being a safety coordinator of Hi Power Pte. Ltd. (UEN: 200504308M) of 15 Changi North Street 1 #01-01 I-Lofts @ Changi Singapore 498765, at a worksite located at NDC233 – Route A, Labrador Villa Road, in Singapore, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) (“the Act”), did without reasonable cause, negligently do an act which endangered the safety of others; to wit, you signed a permit-to-work (“PTW”) for excavation works as a safety assessor without taking any steps to satisfy yourself that all reasonably practicable measures will be taken to ensure the safety and health of the persons who will be carrying out excavation work exceeding 1.5 metres in depth, which act contributed to the death of Arokyasamy John Kennedy (FIN: [xxx]) and the injuries sustained by Mani Vinothkumar (FIN: [xxx]), and you have thereby committed an offence under Section 15(3A) read with Section 20 of the Act, punishable under the same section of the Act

on 15 October 2018, being a safety assessor of Hi Power Pte. Ltd. (UEN: 200504308M) of 15 Changi North Street 1 #01-01 I-Lofts @ Changi Singapore 498765, at a worksite located at NDC233 – Route A, Labrador Villa Road, in Singapore, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) (“the Act”), did without reasonable cause, negligently do an act which endangered the safety of others; to wit, you signed a permit-to-work (“PTW”) for excavation works as a safety assessor without taking any steps to satisfy yourself that all reasonably practicable measures would be taken to ensure the safety and health of the persons who would be carrying out excavation work exceeding 1.5 metres in depth for the period of 16 to 22 October 2018, and you have thereby committed an offence under Section 15(3A) read with Section 20 of the Act, punishable under the same section of the Act



19     With the amendment, the Accused could not be held responsible for the death of the Deceased or the injuries sustained by the Injured Victim. However, the issue of whether the Accused was still negligent under the WSHA as alleged in the amended charge remained a live issue. I was of the view, at the close of the Prosecution’s case, that there was some evidence, not inherently incredible, which satisfy each and every element of the charge against the Accused.

20     The Accused’s defence was thus called and he elected to testify on oath. The Defence also called DW1 as its sole defence witness. The Accused’s main defence was that when he was first approached by the Co-Accused on 15 October 2018, he had initially declined to sign P2 as he was not working the day shift. He had only signed P2 after the Co-Accused’s insistence, and the assurance by the Co-Accused that a different PTW – to be signed by PW3 on the following day – would be used for the works for the period stated in P2. P2 was therefore only to be used for backfilling works on 16 October 2018. Furthermore, the Accused had conducted the requisite documentary assessment before he had signed P2; and this was permissible as the PTW signing process was treated more as an administrative process within Hi Power.

21     At the close of the Defence’s case, I amended the charge further as it was clear that the Prosecution’s case was premised on the Accused having failed to perform all the requisite checks in P2, such that even if the Accused had performed some checks but not all of them, the Court should still find the Accused negligent under s 15(3A) of the WSHA:

Amended charge against the Accused at the close of the Prosecution’s case

Final version of the amended charge against the Accused

on 15 October 2018, being a safety assessor of Hi Power Pte. Ltd. (UEN: 200504308M) of 15 Changi North Street 1 #01-01 I-Lofts @ Changi Singapore 498765, at a worksite located at NDC233 – Route A, Labrador Villa Road, in Singapore, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) (“the Act”), did without reasonable cause, negligently do an act which endangered the safety of others; to wit, you signed a permit-to-work (“PTW”) for excavation works as a safety assessor without taking any steps to satisfy yourself that all reasonably practicable measures would be taken to ensure the safety and health of the persons who would be carrying out excavation work exceeding 1.5 metres in depth for the period of 16 to 22 October 2018, and you have thereby committed an offence under Section 15(3A) read with Section 20 of the Act, punishable under the same section of the Act

on 15 October 2018, being a safety assessor of Hi Power Pte. Ltd. (UEN: 200504308M) of 15 Changi North Street 1 #01-01 I-Lofts @ Changi Singapore 498765, at a worksite located at NDC233 – Route A, Labrador Villa Road, in Singapore, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) (“the Act”), did without reasonable cause, negligently do an act which endangered the safety of others; to wit, you signed a permit-to-work (“PTW”) for excavation works as a safety assessor without conducting the requisite checks to satisfy yourself that all reasonably practicable measures would be taken to ensure the safety and health of the persons who would be carrying out excavation work exceeding 1.5 metres in depth for the period of 16 to 22 October 2018, and you have thereby committed an offence under Section 15(3A) read with Section 20 of the Act, punishable under the same section of the Act



22     The Defence did not object to the amendment. There was no prejudice caused to the Defence, given the Defence’s submissions that the Accused had in fact performed all requisite checks at the material time.

The Court’s Decision on Conviction

23     For the Court to convict the Accused of the amended charge, the Prosecution must prove that (Nurun Novi Saydur Rahman v Public Prosecutor and another appeal [2019] 3 SLR 413 (“Nurun Novi”) at [20]):

(a)     the Accused had done an act which endangered the safety of others; and

(b)     the act must be negligent – this means that a reasonable person in the same circumstances would have been aware of the likelihood of damage or injury to others as a result of the said acts (Nurun Novi at [50]), and the act is therefore one which a reasonable person would not have done.

24     The two main issues I had to answer in determining whether to convict the Accused were as follows:

(a)     First, how did P2 end up being signed by the Accused on the night of 15 October 2018 (1st Issue)?

(b)     Second, did the Accused negligently endanger the safety of others in signing P2 as a safety assessor on 15 October 2018 (2nd Issue)?

1st Issue: How did P2 end up being signed by Nachiappan on the night of 15 October 2018?

25     On the first issue, I found that the following series of events had occurred on the night of 15 October 2018. These findings are based largely on the contents of the accused persons’ statements, of which on these factual matters I saw no reason to doubt:

(a)     On 15 October 2018, at or around 830pm to 9pm, the Co-Accused passed an unsigned copy of P2 to the Accused, for the latter to sign as the safety assessor.[note: 5]

(b)     The Accused did not sign the PTW immediately. He raised concerns to the Co-Accused that he shouldn’t be signing P2 as he was the night-shift safety coordinator. The Accused suggested to the Co-Accused that the safety manager, PW3, who was working in the day, should be the one signing P2 instead. [note: 6]

(c)     At some point later in the night, the Co-Accused tried to assuage the Accused, and showed the Accused a text message he had sent PW3 and PW3’s reply.[note: 7] The exchange shows the Co-Accused asking PW3 to “come to site and sign for me the PTW”, and PW3 replying “ok”:[note: 8]

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Notably, it is not clear from the WhatsApp message which PTW the Co-Accused was referring to, and during the trial, PW3 claimed not to be able to remember which project this message was in relation to.[note: 9]

(d)     The Accused then signed P2, and handed it back to the Co-Accused on 15 October 2018.

26     For completeness, I found that after the Accused signed P2 on 15 October 2018, the following events took place on 16 October 2018:[note: 10]

(a)     On 16 October 2018, at about 9 am at the Worksite, the Co-Accused passed P2 to the site supervisor, Syed, for the latter to tick the relevant “pre-requisite confirmations” and sign P2.

(b)     Syed did so and passed it back to the Co-Accused.

(c)     The Co-Accused then passed P2 to PW4 who endorsed and approved P2.

27     There was much uncertainty as to whether and what exactly PW3 did sign on the morning of 16 October 2018. Ultimately, I found that there was no convincing, contemporaneous evidence that PW3 did sign a PTW for excavation works that was supposed to supersede P2, on the morning of 16 October 2018. I will return to this point at a later juncture.

2nd Issue: Did the Accused negligently endanger the safety of others in signing P2 as a safety assessor on 15 October 2018?

The Accused’s duties as a safety assessor vis-à-vis P2

28     The relevant provisions of the Constructions Regulations at the material time are reproduced as follows:

Application for permit-to-work

13.    An application for a permit-to-work shall —

(a)    be made by the supervisor of a person who is to carry out any high-risk construction work in a worksite;

(b)    be made in such form and manner as may be required by the project manager of the worksite;

(c)    state the measures which will be taken to ensure the safety and health of persons who carry out the high-risk construction work in the worksite; and

(d)    be addressed to the project manager and submitted to the safety assessor for the worksite where the high-risk construction work is to be carried out.

Evaluation of permit-to-work

14.—(1)    On receipt of the application for a permit-to-work, the safety assessor shall —

(a)    assess whether all reasonably practicable measures have been taken to ensure the safety and health of the persons who will be carrying out the high-risk construction work in the worksite; and

(b)    inspect the site (including its surroundings) where the high-risk construction work is to be carried out together with the supervisor of the person who is to carry out the work to ensure that the high-risk construction work can be carried out with due regard to the safety and health of the person or any other person at work in the worksite who may be affected.

(2)    If the safety assessor is satisfied that the high-risk construction work can be carried out in the worksite with due regard to the safety and health of workers and other persons at work in the worksite who may be affected, he shall endorse the application for the permit-to work and forward the endorsed application to the project manager of the worksite.

(3)    It shall be the duty of the safety assessor to exercise all due diligence when performing his functions in relation to the evaluation and endorsement of an application for a permit-to-work under paragraphs (1) and (2).

Issue of permit-to-work

15.—(1)    The project manager of a worksite may issue a permit-to-work in relation to any high-risk construction work which is to be carried out in the worksite if the project manager is satisfied that —

(a)    there has been a proper evaluation of the risks and hazards involved in the carrying out of the work based on the available information;

(b)    no incompatible work which may pose a risk to the safety and health of other persons at work in the worksite will be carried out at the same time in the same vicinity as the high-risk construction work;

(c)    all reasonably practicable measures will or have been taken to ensure the safety and health of the persons who carry out or are to carry out the high-risk construction work; and

(d)    all persons who are to carry out the high-risk construction work are informed of the hazards associated with it.

(2)    The project manager of a worksite who issues a permit-to-work in respect of any high-risk construction work shall retain a copy of the permit-to-work.

(3)    It shall be the duty of the project manager of a worksite to exercise all due diligence when performing his function in relation to the issuance of a permit-to-work under paragraph (1).

(4)    Subject to regulation 19, a permit-to-work shall be valid for the period stated therein, and if the high-risk construction work for which the permit-to-work is issued is not completed within the validity period, a fresh application shall be made in accordance with regulation 13.

Posting of permit-to-work and supervisor’s duty

16.    It shall be the duty of the supervisor of any person who carries out any high-risk construction work in a worksite to —

(a)    clearly post a copy of the permit-to-work issued in respect of that high-risk construction work, including where reasonably practicable, a sketch of any area where the high-risk construction work is permitted, at the work area where the work is carried out; and

(b)    ensure that the copy is not removed until the date of expiry or date of revocation of the permit-to-work or on completion of the high-risk construction work, whichever is the earlier.

Monitoring of work

17.—(1)    It shall be the duty of the project manager of a worksite to continually review the progress of all high-risk construction work being carried out in the worksite to ensure that the high-risk construction work is carried out with due regard to the safety, health and welfare of the persons carrying out the high-risk construction work in the worksite.

(2)    It shall be the duty of the supervisor of any person who carries out any high-risk construction work in a worksite —

(a)    to ensure that the measures necessary to ensure the safety and health of the person at work are taken and are in place at all times during the validity period of the permit-to-work; and

(b)    to inform the project manager of the worksite upon completion of the high-risk construction work.

29     In determining whether the Accused had negligently endangered the safety of others in signing P2 as a safety assessor, it is important to first establish what exactly the Accused’s duty was, in relation to the signing of P2. The general content of this duty is prescribed in regulation 14 of the Construction Regulations. The safety assessor of a PTW has a duty to, on receipt of the application for a PTW, “assess whether all reasonably practicable measures have been taken to ensure the safety and health of the persons who will be carrying out the high-risk construction work in the worksite” (reg 14(1)(a)). He is also under a duty to “exercise all due diligence when performing his functions” (reg 14(3)).

30     In the present case, it was not disputed that the Accused as a safety assessor had a duty to “conduct the requisite checks” listed in P2 to fulfil his duty under reg 14(1). This meant checking and satisfying himself that each of the pre-requisites stated in P2 has been fulfilled or carried out before signing the PTW. The Prosecution’s case was that the Accused had not conducted the requisite checks, and therefore failed to assess that all reasonably practicable measures had in fact been taken for excavation works at the Worksite for the period stated in P2.

31     The Construction Regulations also sets out the duties of the site supervisor (reg 13) and project manager (reg 15) in the PTW endorsement process. Regulation 17 makes clear that even after the PTW is signed, a continuing duty is imposed on the project manager to “continually review the progress of all high-risk construction work….with due regard to the safety [of the workers]”, and on the site supervisor to “ensure that the measures necessary to ensure the safety [of the workers] are taken and are in place at all times during the validity period of the [PTW]”. Crucially, reg 17 does not stipulate that the safety assessor of a PTW has a similar, continuing duty to ensure the safety of workers. This raises the question of what exactly the Accused’s duty was, in relation to P2, given that he had signed it a day earlier (on 15 October 2018) and the PTW was supposed to be valid for an entire week (ie, 16 October 2018 – 22 October 2018).

32     In reviewing the evidence at trial, I found it necessary to draw a distinction between the Accused’s duties as a safety assessor under reg 14 as opposed to his duties as an appointed safety coordinator of Hi Power. These two duties might not be the same. The Construction Regulations did not impose a continuing duty on the Accused to conduct the requisite checks for the entire PTW period or to continually assess whether all reasonably practicable measures had been taken; even if as a safety coordinator employed by Hi Power, he had a duty to do so.[note: 11] This was accepted by the Prosecution as well. How, then, should a safety assessor fulfil his reg 14 duty, in the context of a weekly PTW like P2, before signing on it?

33     In my view, while the Accused did not have a continuing duty under reg 14 to ensure safety measures were taken or complied with after he had signed P2, he had a duty to properly conduct the requisite checks to satisfy himself that, at least for the first day of the PTW (ie, 16 October 2018), all reasonably practicable measures had been taken. This is because the purpose of an approved PTW – that has been endorsed by a safety assessor, amongst others – is to make clear to all and sundry that work could commence at the stated worksite, on the stated dates.[note: 12] The safety assessor’s primary role as prescribed in the Construction Regulations is to ensure that all “reasonably practicable measures” have been taken before the commencement of high-risk construction work. When the approved PTW has been “clearly post[ed]….at the work area where the work is carried out” (reg 16), this would clearly signify that it is now permissible for high-risk construction works to commence. This must mean that at least for the first day of the period of time stated in the PTW, the safety assessor must be satisfied that all reasonably practicable measures have been taken to allow works to commence. The safety assessor cannot then be expected to continue conducting checks, and essentially re-validating the PTW daily, when the Construction Regulations themselves did not prescribe this. If this raises concerns about whether such safety precautions or checks by the safety assessor are adequate, the Ministry of Manpower may wish to look carefully into the more fundamental issue of whether weekly PTWs – like P2 – should even be permissible in law; and consider providing the appropriate clarifications in the WSHA or the Construction Regulations accordingly.

34     Having established that the Accused’s duty was to ensure that all reasonably practicable measures had been taken prior to the commencement of work on 16 October 2018, the central issue I have to deal with is whether the Accused did in fact conduct the requisite checks required in P2 before signing it, on the night of 15 October 2018.

Whether the Accused conducted all the requisite checks before signing P2

35     On this central issue, I found that the Accused did not conduct all the requisite checks before signing P2 on the night of 15 October 2018, for two reasons:

(a)     First, he could not have conducted all the requisite checks on the night of 15 October 2018, as pre-requisites 3 and 4 of P2 could only have been properly checked on 16 October 2018 itself.

(b)     Second, the evidence suggest that the Accused had not conducted any of the requisite checks which he was required to in P2.

36     Having considered the totality of the evidence, I found that of the seven “pre-requisite confirmations” stated in P2 which were ticked (see above at [ ]), save for pre-requisites 3 and 4, all of the rest involve checks which could reasonably have been done by a safety assessor prior to 16 October 2018. This is because these other pre-requisites involve documentary checks on the availability of pre-existing documents used in the Worksite (such as pre-requisites 1, 2 and 7), or visual checks on physical objects or structures (such as pre-requisites 5 and 6) that would be in place for a continuous project like the one which Hi Power was involved in at the Worksite. This means that for most of the pre-requisites, it would have been possible – and permissible – for the Accused to have checked them on the night of 15 October 2018.

37     However, for pre-requisites 3 and 4, I found that these could not have been properly checked on the night of 15 October 2018, for works which were meant to commence only on 16 October 2018. I noted that on this issue, in particular pre-requisite 3, the Prosecution’s key witness (PW9) did not provide clear and consistent evidence on the stand as to what these checks involve and how or when these checks could be conducted.[note: 13] During oral submissions after the Defence’s case has closed, the Prosecution also appeared to vacillate on this issue, initially suggesting that the Accused could have checked that this pre-requisite was in order on the night of 15 October 2018,[note: 14] before eventually agreeing with the Court that this pre-requisite could only be properly checked on 16 October 2018 (ie, the first day of work).[note: 15]

38     Despite the lack of clarity in the evidence on this issue, I found that a reasonable reading of pre-requisites 3 and 4 would yield the conclusion that these two pre-requisites could not have been checked a day earlier. I begin with pre-requisite 3, which required the safety assessor to check that the “hazards [and] risk assessment” had been “briefed to” workers and that “adequate PPE [was] checked on all site personnels”. The most convincing account provided by all of the relevant witnesses on this pre-requisite all point to the completed daily toolbox meeting record[note: 16] as evidence of pre-requisite 3 being fulfilled.[note: 17] The contents of the daily toolbox meeting record mirror pre-requisite 3, with a segment on “hazards & risk assessment briefing” which is immediately followed with a “head to toe PPE check” (see above at [16]).

39     Critically, when I asked the Accused how an empty daily toolbox meeting record form (which would be what he had seen on the night of 15 October 2018) could lead a safety assessor to be satisfied that pre-requisite 3 was fulfilled, his response was that “[i]n the morning---in the toolbox [meeting], they will fill it out. After that, I will go and check at the site”.[note: 18] In providing this answer, the Accused had inadvertently conceded that a safety assessor could not have properly checked that pre-requisite 3 was fulfilled the night before works commence, because the daily toolbox meeting record for 16 October 2018 would not have been completed yet. As such, I accepted PW2’s evidence that a PTW such as P2 could and should only have been signed or issued after the relevant daily toolbox meeting.[note: 19]

40     Similarly, for pre-requisite 4 which required the safety assessor to check the “daily excavator operator checklist”, this could not have been checked the night before as the checklist was a “daily” one which was supposed to be filled up by the excavator operator every day after he had completed the “standard checks…before the start of his work shift”.[note: 20] There was no evidence provided or submission made by the Defence that on the night of 15 October 2018, the “daily excavator operator checklist” was already filled up for works to be commenced on 16 October 2018, or that this would have been proper under P2. Given that this checklist had to be completed by the excavator operator on a daily basis, the Accused could only have checked that pre-requisite 4 was fulfilled on 16 October 2018, after verifying that the daily excavator operator checklist on 16 October 2018 was properly filled up.

41     Confronted with these points, the Defence eventually accepted that some of the pre-requisites in P2 “could not have [been] fulfilled … on the 15th[October 2018]”.[note: 21] I therefore found that the Accused could not have conducted the requisite checks to satisfy himself that pre-requisites 3 and 4 were complied with on 15 October 2018, and he therefore could not have conducted all the requisite checks required of him on the night of 15 October 2018 when he signed P2.

42     Furthermore, I also found that the Accused did not in fact conduct any checks before signing P2 on the night of 15 October 2018. I accepted the Prosecution’s submission that if the Accused had in fact conducted any check at all, he would have mentioned it in P5 (recorded less than a month after the accident) or certainly P32 (his cautioned statement).[note: 22] Importantly, before P32 was recorded, the charge which was read out to the Accused was one which alleged that “on 15 October 2018…[he] failed to carry out the necessary checks before signing off as the safety assessor on a permit-to-work”. Had the Accused in fact conducted any check at all on 15 October 2018, one would reasonably expect his cautioned statement to set out – even if briefly – the checks he had carried out before he signed P2.[note: 23] Not only did he fail to do so, the Accused’s initial and consistent responses in his two statements – which were recorded 3 years apart – were that the responsibility for conducting the necessary checks fell on PW3, who was the day shift safety officer. In my view, this clearly evidences the Accused’s awareness that there were certain checks which the safety assessor ought to have conducted before signing P2, but he was not able to do as he was working “full-time night shift”. This excuse provided by the Accused is entirely consistent with him not having conducted any check at all, as his position pre-trial was that PW3 would or should have conducted these checks. Given the contents of the Accused’s statements, I saw no basis to accept any of the Accused’s belated account during trial when he testified to having conducted the requisite checks on the night of 15 October 2018.

43     I therefore found that the Prosecution has established beyond reasonable doubt that the Accused had signed P2 as a safety assessor without conducting the requisite checks to satisfy himself that all reasonably practicable measures would be taken to ensure the safety and health of the persons who would be carrying out excavation work exceeding 1.5 metres in depth for the period of 16 to 22 October 2018.

Whether a reasonable man in the Accused’s circumstances would have known that there was a likelihood of death or injury, if he had signed P2 for use at the Worksite without conducting the requisite checks

44     I now turn to the issue of whether a reasonable man in the Accused’s circumstances would have known that there was a likelihood of death or injury, if he had signed P2 for use at the Worksite without conducting the requisite checks. In my view, the Accused ought to have known that there was a likelihood of death or injury if P2 was used for excavation work exceeding 1.5 metres in depth when the requisite checks had not been conducted.

45     I came to this view given the following evidence:

(a)     First, in his initial statement (P5), the Accused had accepted that one of the safety precautions put in place by Hi Power before commencing excavation works was the “implementation of [the] PTW [system]”.[note: 24] When asked what could be done to prevent the occurrence of a similar accident as that which occurred on 20 October 2018 (where death and injury did materialise), the Accused suggested, amongst other things, that before starting work, workers should be briefed of the danger of excavation works.[note: 25] This mirrors one of the pre-requisites (pre-requisite 3) the safety assessor was supposed to check in P2, on the first day of the PTW period, before signing it.

(b)     Second, when he was cross-examined, the Accused also agreed that “if the safety assessor does not conduct any checks, there will be a danger to the safety of the workers carrying out the excavation work” and that “it will not be safe to commence work if the [PTW] is signed when no one checks to ensure that the pre-requisites are satisfied”.[note: 26]

(c)     Third, the Accused had been a safety coordinator in Hi Power for 4 years prior to the accident, and had completed various safety courses since 2009.[note: 27]

46     Having regard to the fact that the duty imposed on the Accused was one which was specifically spelt out under the Construction Regulations, the Accused’s work experience, and the Accused’s answers to the questions posed to him, I found that a reasonable safety assessor in the Accused’s position would have known that there was a likelihood of death or injury, if P2 was signed and used at the Worksite without requisite checks being conducted. Therefore, a reasonable safety assessor in the Accused’s position would not have signed P2 on the night of 15 October 2018 as he had not conducted all of the requisite checks required of him.

Whether there was reasonable cause for the Accused to sign P2 without conducting the requisite checks

47     Finally, I turn to the issue of whether there was reasonable cause for the Accused to sign P2 without having conducted the requisite checks. The Defence appeared to have put forth two main arguments on this point.

48     First, the Defence submitted that even though the Accused had signed P2, a different PTW signed by PW3 was supposed to have been used instead, and P2 should not have been used beyond backfilling works conducted on the morning of 16 October 2018 morning. I dismissed this submission on both factual and legal grounds.

49     Factually, I was not convinced that it was indeed the case that a different PTW – signed by PW3 – ought to have been used by Hi Power at the material time. This is because both the Accused and the Co-Accused did not mention this in their statements, even though this would have been central to their defences. It would have been entirely reasonable and expected that when confronted with the charge found in P32, the Accused would have immediately volunteered this information in his cautioned statement if it was indeed true. Instead, the Accused’s initial statement merely contains his admissions – on multiple occasions – that there was “no separate PTW implemented for this incident worksite”.[note: 28] Even when the Accused tried to disclaim responsibility in P32 by pinning the responsibility on PW3, the Accused did not suggest that there was in fact another PTW signed by PW3 which should have been used at the Worksite instead. There was therefore no basis for me to accept the Defence’s belated claim that P2 was not the applicable PTW at the material time.

50     Legally, even if there was a subsequent PTW bearing PW3’s signature – instead of the Accused’s – for the same excavation work, I was of the view that there would still not have been reasonable cause for the Accused to have signed P2 on the night of 15 October 2018, having not conducted any requisite check before signing it. Reg 14(3) of the Constructions Regulations makes it clear that the Accused had a duty to “exercise all due diligence when performing his functions in relation to the evaluation and endorsement of an application for” a PTW. If the Accused was aware or of the view that P2 should not be used for other works beyond 16 October 2018, he should not have signed a PTW for a period lasting from 16 to 22 October 2018. Furthermore, taking the Accused’s case at its highest, the facts would still show that he had signed P2 – which was to be used for some works on 16 October 2018 – without having conducted the requisite checks on 15 October 2018. It would thus still have been negligent for the Accused to have signed P2, whilst expecting someone else (ie, PW3) to conduct the necessary checks. This was not permitted under the Construction Regulations.

51     The other argument put forth by the Defence was that because of the “company’s practices”,[note: 29] the Accused had done what he could “based on Hi Power’s practice for the PTW”.[note: 30] On this point, I accepted that as a night shift safety coordinator, it would have been difficult – if not wholly unreasonable – for the Accused to have been responsible to check and sign P2. I also accepted that Hi Power had at the material time most likely treated the PTW process as simply an “administrative process”,[note: 31] a term I understood to mean that the PTW signing process was treated more so as a paper-filling exercise, as compared to being treated seriously as an important measure to ensure that works could indeed be carried out safely. This would explain why PW3 could not even satisfactorily explain how his signature was found in a “work at height” PTW in the same period, in relation to the same Worksite;[note: 32] and the fact that Hi Power had in the past even issued monthly PTWs, before transiting to weekly PTWs at the material time.[note: 33] As PW9 accurately puts it, it was clearly the “failure of the company” in not ensuring that there was a safety assessor for the day shift who could properly check and sign P2.[note: 34]

52     None of these, however, was of assistance to the Accused on whether he had acted with “reasonable cause”. Arguments by persons at work that they were merely following a flawed risk management system or directions from superiors do not constitute “reasonable cause” under the WSHA (Nurun Novi at [58]). The Accused was clearly aware that there could be risks to others if P2 was used without a safety assessor having conducted the necessary pre-requisite checks – this explains his refusal to sign P2 initially. He should have abided by his duty under the Construction Regulations and either insisted in not signing P2, or to sign it only after he had found the time to conduct the requisite checks required of him.

53     For all the foregoing reasons, I found that all the elements of the amended charge against the Accused have been made out beyond reasonable doubt and I therefore convicted him accordingly of the amended charge. The Accused had negligently endangered the safety of others by signing P2 as a safety assessor on 15 October 2018 without conducting the requisite checks.

Antecedents

54     The Accused has no record of any previous conviction.

Prosecution’s Address on Sentence

55     The Prosecution submitted that a sentence of 3 to 4 months’ imprisonment is appropriate. Relying on the two-step sentencing framework (“Mao Xuezhong framework”) set out in the High Court decision of Mao Xuezhong v Public Prosecutor and another appeal [2020] 5 SLR 580 (“Mao Xuezhong”), the Prosecution assessed both the level of harm and level of culpability to be moderate.

56     The Prosecution submitted that the level of harm is moderate based on the following factors:

(a)     The harm risked is serious since death and/or serious injury was a likely result.

(b)     The likelihood of the harm arising from the Accused’s offence is moderate. The Prosecution submitted that the “failure to check if the risk assessment had been briefed [to workers] increased the risk that the workers would carry out dangerous excavation work without providing shoring”.[note: 35]

(c)     On the day of the accident, four members of the working team were exposed to the risk of harm.

57     The Prosecution submitted that the level of culpability is moderate based on the following factors:

(a)     The Accused had conducted one unsafe act.

(b)     The Accused’s failure is grave as he had failed to conduct any checks at all. He had signed the PTW “despite it being evident that certain checks could not have been conducted until the next day”.[note: 36] The Accused’s failure is a gross dereliction of his duty as a safety assessor, and a complete deviation from reg 14 of the Construction Regulations.

58     Under the sentencing benchmarks set out in Mao Xuezhong, a case falling under moderate harm-moderate culpability would attract an indicative sentence of up to 6 months’ imprisonment. The Prosecution submitted that the indicative starting point should be 3 to 4 months’ imprisonment, and that no further adjustment should be made at the second stage of the Mao Xuezhong framework.

59     With regards to the issue of whether there would be parity of sentence given that PW4 was only sentenced to a fine of $9,000, the Prosecution submitted that PW4 was charged under reg 15(3) read with reg 15(1) of the Construction Regulations, and not under s 15(3A) of the WSHA like the Accused. The Prosecution submitted that PW4’s sentence is thus of “limited utility” as the principle of parity in sentencing does not apply, given that the PW4 was convicted of and sentenced to a different offence. Since the present offence the Accused is charged under is directly governed by the Mao Xuezhong framework, whereas PW4’s case is not, the Prosecution urged the Court not to rely on the outcome in PW4’s case in calibrating the Accused’s sentence.

Mitigation

60     In mitigation, the Defence submitted that the present offence of the Accused falls under “low harm” and “low culpability” under the Mao Xuezhong framework. The Defence highlighted that the Accused’s duty was simply to ensure that all requisite checks were conducted before the commencement of work, and that there was no continuing duty on the Accused to conduct further checks.

61     The Defence submitted that PW4, being the project manager, had a greater responsibility in the issuance of P2, and was only fined $9,000. The Defence therefore submitted that the Court should impose a minimum fine on the Accused.

The Court’s Decision on Sentence

The prescribed punishment

62     Under section 15(3A) of WSHA, the Accused is liable to a fine not exceeding $30,000 or to imprisonment for a term not exceeding 2 years or to both.

The applicable sentencing framework

63     In Mao Xuezhong at [64], the High Court set out a two-stage sentencing framework which is applicable to first-time offenders who claim trial to a charge under s 15(3A) of the WSHA.

64     Under the first step, the Court is to establish the level of harm and the level of culpability in order to derive the indicative starting point according to the matrix set out below:

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65     In assessing the level of harm, the sentencing court is to consider (Mao Xuezhong at [64(a)(i)]):

the degree of both potential harm and actual harm caused, ie, the actual harm with a causal or contributory link to the risk created by the accused person’s negligent act. [The] non-exhaustive factors affecting the degree of potential harm [are] the seriousness of the harm risked, the likelihood of that harm arising and the number of people likely to be exposed to the risk of that harm.

66     In assessing the level of culpability, the sentencing court is to consider (Mao Xuezhong at [64(a)(ii)]):

the nature of the unsafe act, the number of unsafe acts committed by the offender and the level of deviation from established procedure involved in the unsafe act.

67     Under the second step, the Court would then adjust the starting point according to offender-specific aggravating and mitigating factors, if any, that have not yet been factored into the analysis.

The key facts relevant to sentencing

68     The PTW process aims to safeguard the safety and health of workers who carry out high-risk construction work. There are three steps to the PTW approval process set out in the Construction Regulations. First, the site supervisor has to apply for the PTW, stating the measures which will be taken to ensure the safety and health of persons carrying out the high-risk construction work. Next, a safety assessor, like the Accused, will have to assess whether all reasonably practicable measures have been taken in the PTW. During the trial, the Prosecution’s position has consistently been that the Accused’s duty as a safety assessor was to evaluate if the safety measures (or pre-requisites) listed in P2 had been fulfilled or carried out, before endorsing the PTW. The PTW will then be forwarded to the project manager, in the present case, PW4, for his approval before works could commence.

69     In convicting the Accused, I found the Accused negligent in having failed to perform all the requisite checks stated in P2 before endorsing it on 15 October 2018, as alleged by the Prosecution. Some of the checks which the Accused had a duty to perform – such as ensuring pre-requisites 3 and 4 were complied with – could and should only have been performed on 16 October 2018.

70     At the same time, I found no evidential support for the proposition that the Accused was responsible in ensuring that the workers were actually briefed of either the RA or how the excavation works should be conducted. This is because the evidence led by the Prosecution in the trial only went so far as to establish that the Accused’s duty in this regard was simply to check that the daily toolbox meeting record (which states whether the RA was briefed to the workers) was completed and signed by the supervisor (see above at [16]). In essence, it was not disputed that the checks the Accused was supposed to have conducted in relation to “pre-requisite 3” was a documentary one.[note: 37]

71     Similarly, there was also no evidence that had the Accused dutifully carried out the requisite checks before signing P2 on 16 October 2018, he would have spotted issues or deficiencies in Hi Power’s preparations for the excavation works commencing on 16 October 2018, which he would have a duty to rectify before signing P2. Notably, there was no evidence presented to the Court on:

(a)     what the toolbox meeting record on 16 Oct 2018 (if any) had or had not contained;

(b)     whether there was a practice within Hi Power of treating toolbox meetings seriously; and

(c)     which of the pre-requisites in P2 would not have been satisfied had the Accused dutifully conducted the checks on 16 October 2018 before signing P2.

72     Considering that the Accused’s duty was also not a continuing one (unlike that of Syed or PW4), there exists in my view a clear, evidential gap between what the Accused had failed to check, and the actual risks which the Prosecution is alleging had manifested as a result of the Accused’s failure. It is in this factual context in which I assess the level of harm and culpability inherent in the Accused’s offence.

Assessing the level of harm

73     It is not disputed that no actual harm can be said to have been caused by the Accused’s negligent act.

74     In relation to potential harm, I am of the view that based on the factors to be considered in Mao Xuezhong, harm should fall under the lowest end of moderate harm.

75     For the seriousness of the harm risked, I agree with the Prosecution that this should be assessed as high, given that excavation is recognised as a high-risk construction work, and any accident in such a work setting is likely that of death or serious injury, considering the outcome which will result if there was a trench collapse or workers fall into trenches exceeding 1.5 metres in depth.

76     In relation to the likelihood of the harm arising, I have previously held in Public Prosecutor v TNS Ocean Lines(S) Pte Ltd [2024] SLR(StC) 64 at [26] that it is important to “carefully analyse the contributory link between the failures in question and the stated risks posed”. In my analysis, the contributory link between the Accused’s failure and the actual risk of a trench collapse or workers falling into trenches is very low because of the evidential gap I had earlier identified (see above at [70] – [72]). Because there was no evidence led that had the Accused dutifully carried out the requisite checks before signing P2 on 16 October 2018, there would have been any safety issue which could have been spotted and rectified, I am of the view that the likelihood of harm as a result of the Accused’s failure to conduct the pre-requisite checks was very low. The likelihood of harm arising should only be labelled moderate or high, if, for example, the Court was presented with evidence of there being a practice within the company where the daily toolbox meetings were not even conducted, or the requisite documents not in place or properly filled up. In such a scenario, by not checking the daily toolbox meeting or other documentary records properly, the likelihood of harm arising would correspondingly be much higher. However, in the present case where there is no such evidence, I assess the likelihood of the harm arising to be very low.

77     Therefore, even though the seriousness of harm risked is high, but because I can only assess the likelihood of harm arising to very low, I find that these factors balance out each other and harm should be pegged at the lowest end of moderate harm.

Assessing the level of culpability

78     As for the Accused’s culpability, I find it to be at the higher end of low culpability. The Accused had carried out one unsafe act of failing to conduct the requisite checks before signing P2. Even though I had found that the Accused failed to conduct any checks at all, I do not agree with the Prosecution that in the present case, it can be said that there was a clear deviation from “established procedure” on the part of the Accused, for the following reasons.

79     In my view, there was no clear evidence presented by the Prosecution during the trial on what the “established procedure” was, for someone signing a weekly PTW like the Accused. In particular, there was:

(a)     no documentary evidence stating when or how the Accused was supposed to have conducted the checks as a safety assessor;

(b)     no evidence showing that Hi Power had made clear to the Accused or its employees what their duties were when evaluating excavation PTWs; and

(c)     no clarity on the part of the Prosecution initially as to when the checks could have been conducted by the Accused. As mentioned above at [37], even after closing submissions were filed, the Prosecution appeared to be still labouring under the misimpression that the Accused could have conducted the checks on the night of 15 October 2018, before eventually agreeing with the Court that certain pre-requisites could only be properly checked on 16 October 2018. In the circumstances, I do not find much persuasion in the Prosecution’s sentencing submissions that it was “evident that certain checks could not have been conducted until the next day” (see above at [57(b)]).

80     Based on the evidence presented to me, I find that there was in fact no established procedure, whether in Hi Power at the material time of the accident, or even in the Prosecution’s own understanding during investigations into and the prosecution of the Accused, on what exactly the Accused should have done, and when, before signing P2. The Accused’s breach must be viewed in this context, and he cannot be sentenced as if this was a case where it was manifestly clear to him and others what the standard was, which he had negligently breached.

81     Furthermore, I am of the view that the Accused’s culpability is lessened by the following considerations:

(a)     First, it is not disputed that the Accused was initially reluctant to sign P2, when the Co-Accused first approached him to sign it. He eventually gave in under consistent pressure or persuasion by the Co-Accused, who was hierarchically superior to him as the Co-Accused was the de facto construction manager (“CM”) at the material time.[note: 38] The Accused was in essence being asked – if not pressured – by a superior to do his company or colleague a favour; which he had negligently agreed to.

(b)     Second, I have found that it was unreasonable for Hi Power to have requested, through the Co-Accused, for the Accused to sign P2. The Accused, being a night shift safety coordinator at the material time, should not have been approached because he was not going to be present in the morning on 16 October 2018 to check the pre-requisites in P2. This is therefore not a case where the Accused had breached his duty against the backdrop of sound advice or established procedure. On the contrary, the breach of his duty appeared to be a result of the lack of any guidance or procedure that was laid down in Hi Power on who should have evaluated and signed off as the safety assessor in P2.

82     In the prosecution of PW4, the Prosecution had submitted that PW4’s culpability should be assessed as moderate, and this was eventually accepted by the sentencing court. I note that, being the project manager, PW4 was superior in rank and responsibility compared to the Accused. He was the final line of checks for P2, given that a PTW can only be issued by a project manager and works can only commence thereafter. Similar to the Accused, he had signed off on P2 without having conducted any of the checks required of him. In my view, PW4’s culpability appears to exceed that of the Accused. If it was correct to peg PW4’s culpability in the moderate range, I am of the view that the Accused’s culpability should fall under the low range instead.

83     That said, as the Accused failed to perform any checks at all, despite endorsing P2 as a safety assessor, I am of the view that his culpability must be pegged at the higher end of low culpability. This is to distinguish the present case from cases where a similar offender may have conducted some checks on a few pre-requisites, but failed to perform checks on other pre-requisites. In having conducted no checks at all, the Accused’s culpability should be pegged at the higher end of low culpability.

Calibrating the eventual sentence

84     Given my assessment that the Accused’s offence falls within the lowest end of moderate harm, and the higher end of low culpability, the indicative sentencing range following Mao Xuezhong will have to be a fine between $15,000 to $30,000. In giving equal weightage to harm and culpability, I am of the view that the applicable sentencing range should be narrowed to that of between $20,000 to $25,000.

85     Under the second step of the Mao Xuezhong framework, I see no clear offender-specific aggravating or mitigating factor which should adjust the sentence significantly. In my view, the only relevant factor to consider is the delay in the prosecution of the Accused. On its face, this case bears some similarity with Mao Xuezhong (at [42]), as there was a delay of more than three years between the date of the accident (20 October 2018) and the date in which the Accused was first charged in court (13 January 2022). When asked about this, the Prosecution provided the following explanation in oral submissions:[note: 39]

(a)     There were many witnesses and a few suspects arising from the accident on 20 October 2018; and

(b)     Time was needed not only to record statements but also to retrieve the medical documents in respect of the Injured Victim.

86     The Prosecution therefore submitted that the delay in the present case was not inordinate, and the Accused did not suffer any prejudice.

87     While I readily acknowledge that such cases involving the failures of multiple parties will require a longer time to investigate, I observe that there was already evidence as early as 15 November 2018 – from the Accused’s own statement (P5) – suggesting that the Accused had not properly performed his duty prior to signing P2.[note: 40] In fact, this turned out to be a key piece of evidence the Prosecution relied on in seeking the conviction of the Accused. As such, despite the Prosecution’s explanation, it remains unclear to me why the Prosecution had to wait more than 3 years after the Accused’s statement on 15 November 2018 was recorded to charge the Accused in court. While there may not have been any discernible prejudice caused to the Accused in this trial, I am doubtful that the Accused in the present case had been “notified as soon as is practicable of [the charge] against [him]” (Mao Xuezhong at [44], emphasis added).

88     All in all, I consider that a sentence at the lowest end of the applicable fine range I have identified above will be a just and appropriate sentence. I therefore come to the view that a fine of $20,000 (in default 55 days’ imprisonment) should be imposed on the Accused.

The issue of parity with the sentence imposed on PW4

89     In imposing a fine of $20,000 on the Accused, I am mindful that this is in excess of the $9,000 fine which was imposed on PW4, even though I have earlier stated that PW4’s culpability appears greater than that of the Accused.

90     To recap, PW4 was not convicted under s 15(3A) of the WSHA, but under reg 15(3) of the Constructions Regulation, and sentenced under reg 141 of the same. The comparison between the charges, offences and the prescribed punishments faced by PW4 and that faced by the Accused is set out as follows:

 

Central allegation in charge

Offence provision

Prescribed punishment

PW4

you…being the project manager of Hi Power at [the Worksite] … failed to exercise all due diligence when performing your functions as a project manager in relation to the issuance of a [PTW]…

Reg 15(3) of the Construction Regulations:

It shall be the duty of the project manager of a worksite to exercise all due diligence when performing his function in relation to the issuance of a permit-to-work…

Reg 141 of the Construction Regulations:

A fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both

Accused

you...being a safety assessor of Hi Power at [the Worksite] … did without reasonable cause, negligently do an act which endangered the safety of others; to wit, you signed a [PTW] for excavation works as a safety assessor without conducting the requisite checks to satisfy yourself that all reasonably practicable measures would be taken…

Section 15(3A) of the WSHA:

Any person at work who, without reasonable cause, does any negligent act which endangers the safety or health of himself or others shall be guilty of an offence…

Section 15(3A) of the WSHA:

A fine not exceeding $30,000 or to imprisonment for a term not exceeding 2 years or to both



91     In considering this issue, I agree with the Prosecution that PW4 was convicted of a different offence, and I accept that the principle of parity is generally irrelevant where the offences being compared are different (Koh Lian Kok v Public Prosecutor [2024] SGHC 132 at [91]). However, it seems to me that this may not fully address the sense of unease – or even injustice – which may be conjured in a reasonable observer looking at the table above. This is because while the offences may be technically different, they are substantively quite similar when one considers the contents of the charges preferred against both offenders, which are essentially that of them having failed to perform their respective roles in their endorsement of the same PTW. The maximum imprisonment sentences of the prescribed punishments of both offences are also similar.

92     That said, I remain of the view that the fine of $20,000 I am imposing on the Accused is legally defensible when compared with the fine imposed on PW4 for the following reasons:

(a)     First, the decision in the case involving the prosecution and sentencing of PW4 (in SC-909258-2021) is an unreported decision. It is trite that limited weight should be placed on unreported decisions when it comes to sentencing (Janardana Jayasankarr v Public Prosecutor [2016] 4 SLR 1288 at [13(b)]).

(b)     Second, the maximum fine stipulated for a s 15(3A) WSHA offence ($30,000) is much higher than an offence punishable under reg 141 of the Constructions Regulations ($20,000). Thus, it is understandable that a much higher fine may be meted out if an offender is charged and sentenced under s 15(3A) WSHA, compared to reg 141 of the Constructions Regulations.

(c)     Third, even though the Court has a duty to respect the principle of parity as much as possible, it is bound by a greater duty to apply Mao Xuezhong faithfully to the facts. Applying the Mao Xuezhong framework, and considering how harm and culpability have been assessed, I am of the view that it will not be principled for me to reduce the fine of $20,000 any further.

93     For the foregoing reasons, I am of the view that it is justifiable for the Accused to be imposed with a fine that is much higher than that imposed on PW4 by an earlier court. On the other hand, I am doubtful whether the Prosecution can justifiably hold to both its sentencing recommendation of a sentence of 3 to 4 months’ imprisonment on the Accused, and the correctness of the position it had taken in relation to PW4 (in which it had submitted only for a fine), when the latter appears to bear a greater culpability. Even though the Accused and PW4 face different offences, the substance of both offences are sufficiently similar such that, if I were to agree with the Prosecution’s submissions on sentence here, it is quite conceivable that “the public, with knowledge of [these] various sentences, would perceive that the [Accused] had suffered injustice” (Chong Han Rui v Public Prosecutor [2016] SGHC 25 at [47]).

Conclusion

94     In conclusion, I am of the view the Accused’s offence does not warrant a custodial sentence on the present facts. The court has a duty to carefully assess and understand the evidence before it, to form a fair and accurate view of the harm posed by the Accused’s offence, and his level of culpability. This is an exercise which requires a holistic and contextual analysis of what exactly the Accused had failed to do, and how or why he had failed to do so. Having done so, I conclude that a fine of $20,000 (in default 55 days’ imprisonment) is a just and sufficient punishment on the Accused. It is a sentence which can adequately serve the purpose of deterrence, as $20,000 is by no means a trifling sum, especially when imposed on a foreign worker holding a blue-collar job.

95     In my view, these proceedings have also uncovered issues which the Ministry of Manpower may wish to look into, such as whether the practice of weekly PTWs for high-risk construction work should be allowed, and whether the relevant legislation or regulations provide sufficient clarity on what needs to be done in the evaluation and endorsement of a PTW, such that tragic accidents like the one which occurred on 20 October 2018 can stand a higher chance of being prevented by proper PTW checks. When things do go wrong, the investigations into and prosecution of persons under the WSHA must also be centred on a rigorous understanding of both the law and the evidence, to ensure that only those guilty are punished, and in a manner that is consistent and just.

__________________________________________

Annex: The Court’s Oral Grounds dated 30 May 2024 Acquitting the Co-Accused (“Arunsalam”)

1       The amended charge against Arunasalam (DSC-900986-2021) is premised on the finding that Nachiappan had acted negligently. While that has been established, in order for the charge against Arunasalam to be made out, the Prosecution must show that:

(a)     Arunasalam knew what Nachiappan needed to check before the latter could sign on P2;

(b)     Arunasalam knew that Nachiappan had not conducted the requisite checks to ensure that the PTW pre-requisites had been complied with in P2; and

(c)     a reasonable person in Arunasalam’s circumstances would have known that there was a likelihood of death or injury, when he passed P2 to PW4 for the latter to sign on it as a project manager.

2       Before I deal with each of these elements of the charge, I will first deal with the contested issue of Arunasalam’s role at the Worksite, and his knowledge of the PTW process in Hi Power.

Arunasalam’s role and knowledge of the PTW issuance process

3       During the trial, one of Arunasalam’s key defences appears to be that he was not the CM as alleged in the amended charge against him. While the Prosecution did not deny that there was documentary evidence suggesting that he was not the CM of the Worksite on the company’s organisation chart, the Prosecution’s eventual case was that Arunasalam was the de facto CM of the Worksite.[note: 41] On this issue, I find that there is indeed sufficient evidence pointing to Arunasalam being the de facto CM. I have come to accept this finding primarily because of the contents of Arunasalam’s own statements, in which he had on multiple occasions, informed PW9 that he was the “[CM] since September 2018”.[note: 42] I did not find Arunasalam’s attempts in explaining away these admissions at trial convincing at all. Fundamentally, there was no basis for the Court to accept how it would have “helped Hi Power”[note: 43] for Arunasalam to pretend he was the CM for the Worksite when he was interviewed by PW9 if he truly was not. The Defence also did not manage to establish who exactly was the CM at the material time, had it not been Arunasalam. Critically, Nachiappan had also identified Arunasalam as the CM as early as 15 November 2018.[note: 44]

4       While both the Prosecution and the Defence had spent much time, and spilt much ink, on the issue of whether Arunasalam was the CM, I find this to be somewhat of a red herring. This is because based on how the amended charge has been framed against Arunasalam, the key issue is not whether Arunasalam was a CM or not, but his state of knowledge as to what Nachiappan had or had not done in relation to P2, before Arunasalam passed P2 to PW4. The mere fact that Arunasalam was a de facto CM does not advance the Prosecution’s case one bit, unless the Prosecution could build upon this assertion and point to convincing evidence showing what precisely Arunasalam’s role or state of knowledge as a de facto CM at the Worksite was. On this specific issue, I did not find anything in the evidence which clearly suggest what Arunasalam knew or must have known as a de facto CM, especially in relation to the PTW issuance process. When he was cross-examined by Nachiappan’s counsel, Arunasalam’s evidence was that he was “not involved” with the PTW system at Hi Power.[note: 45] This was not contradicted by the Prosecution when it subsequently cross-examined Arunasalam. When PW4 was asked about the CM’s duties in relation to the Worksite, his response was that the CM “oversees the daily operations at the site”, but there was no elaboration, or further questions asked, on how familiar would the CM be of the entire PTW issuance process.[note: 46] Even though the Prosecution’s case was that Arunasalam was appointed by DW1 to be the CM, and the Prosecution had the opportunity to cross-examine DW1, there was also no questions asked of DW1 about what Arunasalam would have known as a de facto CM, in relation to the PTW issuance process. This general uncertainty as to what knowledge Arunasalam had possessed in relation to the PTW issuance process constitutes the backdrop to the analysis of the next few issues, in relation to the amended charge against Arunasalam.

Whether Arunasalam knew what Nachiappan needed to check before the latter could sign on P2

5       It is not disputed that unlike Nachiappan, there was no duty vested in Arunasalam under the Construction Regulations to ensure that P2 was properly signed and issued. For the Court to come to the view that Arunasalam was essentially negligent in forwarding P2 to PW4 for use, the Prosecution bears the burden of proving that Arunasalam knew what Nachiappan needed to check before the latter could sign on P2. As counsel for Arunasalam aptly puts it, “[w]hether [Arunasalam] knew Nachiappan had conducted any checks, [Arunasalam] must firstly know how the checks are to be conducted”.[note: 47] On this issue, I find that there is insufficient evidence to show that Arunasalam knew what Nachiappan needed to check as a safety assessor, for the following reasons.

6       First, there is a significant difference between merely knowing the importance of checks being done by a safety assessor in the PTW process, and knowing precisely what a safety assessor has to check before signing a PTW. While I have no doubts that Arunasalam knew that it was important for a safety assessor to have conducted the requisite checks before signing a PTW, there was simply no evidence tendered which show that Arunasalam knew exactly what Nachiappan needed to check in relation to P2. In fact, when Arunasalam was asked by PW9 about “PTW checks”, his evidence as recorded in P7 was that he was “not sure how the checks are being done”.[note: 48] This claim of his was never contradicted by the Prosecution through the cross-examination of Arunasalam or the examination of any of the Prosecution witnesses. The Prosecution eventually accepted that there was no clear evidence in the trial which would show that Arunasalam was “aware of the pre-requisites that Nachiappan had to check”[note: 49] before signing P2. The Prosecution also did not lead any evidence on what a person of Arunasalam’s seniority or experience would have known about what needed to be checked by Nachiappan before signing P2, and this gels with my earlier observation that there is genuine uncertainty as to what knowledge Arunasalam would have possessed in relation to the PTW issuance process.

7       Second, the failure of the Prosecution to lead sufficient evidence on this point is compounded by the fact that P2 is not a straightforward, daily PTW, where it would be much clearer on its face what exactly a safety assessor had to check and when could these checks be done before signing on it. Instead, P2 is a weekly PTW, and what exactly Nachiappan had to check in relation to a PTW like P2 did not appear to be even clear to PW9 himself; and the issue of when these checks could be done was also one which the Prosecution had vacillated on, even after the close of the Defence’s case. Thus, in the absence of clear evidence showing otherwise, I find it unsafe to assume that Arunasalam knew what Nachiappan needed to check before the latter could sign on P2 at the material time.

Whether Arunasalam knew that Nachiappan had not conducted the requisite checks to ensure that the PTW pre-requisites had been complied with in P2

8       In relation to whether Arunasalam knew that Nachiappan had not conducted the requisite checks, the Prosecution’s submission appears to be one based on omission, ie, that if Arunasalam knew that Nachiappan had conducted the requisite checks, this would have been mentioned in Arunasalam’s statements. Because Arunasalam did not mention anything about Nachiappan conducting any checks in Arunasalam’s statements, the Prosecution is asking this Court to infer that Arunasalam knew that Nachiappan had not conducted any checks, and that Arunasalam “had approached Nachiappan on the night of 15 October 2018, solely for the purpose of obtaining the latter’s signature”.[note: 50] For the reasons below, I reject this submission, and find that the evidence does not satisfactorily show that Arunasalam did know that Nachiappan had not conducted the requisite checks before the latter signed on P2.

9       First, the Prosecution’s reliance on omission to advance its case on this point is unconvincing. This is because Arunasalam was never asked by PW9 during the taking of his statements whether he had seen or witnessed Nachiappan conducting any checks.[note: 51] In relation to his cautioned statement (P31), the charge which was read out to him was a very different one from the amended charge currently before the Court. The original charge had alleged that Arunasalam had “failed to ensure that the process in issuing the [PTW] was carried out properly”, and Arunasalam had understood this to be a reference to how he had first passed the PTW to Nachiappan before passing it to Syed, and had provided his account against this allegation accordingly.[note: 52] In short, nowhere in the statements would it have been clearly reasonable for Arunasalam to have mentioned or discussed whether Nachiappan had conducted the requisite checks.[note: 53] The Court therefore cannot reasonably draw the adverse inference which the Prosecution is seeking against Arunasalam on this point.

10     Second, the possibility that in Arunasalam’s mind, Nachiappan had in fact conducted the requisite checks was not foreclosed by the Prosecution. There was evidence at the trial pointing to the fact that there was a considerable time gap between Arunasalam first approaching Nachiappan with the unsigned P2, and Nachiappan returning P2 with his signature to Arunasalam.[note: 54] The Prosecution accepted the possibility that there was a period of time in which Nachiappan (who was in possession of P2) was not with Arunasalam.[note: 55] Unless there is strong evidence pointing otherwise, this crucial bit of evidence supports Arunasalam’s defence that he could not have known that Nachiappan had not conducted the requisite checks, as he was not by Nachiappan’s side throughout.

11     Third, the potentially strongest evidence in support of the Prosecution’s position on this issue is actually the fact that Nachiappan had initially been reluctant to sign P2 – and this was made known to Arunasalam on the night of 15 October 2018. Had the exchange between Nachiappan and Arunasalam been explored more carefully and in greater detail during the cross-examination of the two accused persons, it might have been possible for the Prosecution to show that Arunasalam knew that Nachiappan did not want to sign P2 because the latter could not conduct all the requisite checks required as a safety assessor. However, as this issue was not explored in any depth during cross-examination, I have to recognise the countervailing possibility that Arunasalam might have thought that Nachiappan had preferred PW3 to sign P2 simply because PW3 was the day shift safety officer, and this would have nothing to do with whether Nachiappan had or had not conducted the requisite checks as a safety assessor. Ultimately, I am not able to make any finding in favour of the Prosecution here as that would be tantamount to the Court making a finding that “resolves against the accused what would otherwise amount to a vital weakness in the Prosecution’s case when the Prosecution itself has not sought to address that weakness by leading evidence and making submissions to support such a finding” (Mui Jia Jun v Public Prosecutor [2018] 2 SLR 1087 at [72]).

12     For all the foregoing reasons, I find that it has not been established beyond reasonable doubt that Arunasalam knew that Nachiappan had not conducted the requisite checks to ensure that the PTW pre-requisites had been complied with.

Whether a reasonable man in Arunasalam’s circumstances would have known that there was a likelihood of death or injury, when he passed P2 to PW4 for the latter to sign on it as a project manager

13     Given my findings above, it follows that a reasonable man in Arunasalam’s circumstances would not have known that there was a likelihood of death or injury, simply by passing P2 to PW4 for the latter to sign on it as a project manager. Arunsalam could not have known of any “likelihood of death or injury” if he did not in fact know that Nachiappan had not conducted the requisite checks.

14     For completeness, I will also add that the Prosecution’s reliance on the alleged verbal exchange between PW4 and Arunasalam is misplaced, and does not assist the Prosecution’s case. The Prosecution has sought to characterise Arunasalam’s response to PW4’s query as a “misrepresentation”.[note: 56] I find that there is insufficient evidence for this to be established beyond reasonable doubt. In the first place, the Prosecution did not comprehensively establish what had exactly transpired between PW4 and Arunasalam on the morning of 16 October 2018. The Court had to ask PW4 directly what the content of their conversation was, and PW4’s answer was that PW4 had “asked [Arunasalam] whether the pre-requisite requirements are all in place and [are] all approved”, to which Arunasalam allegedly answered “yes”.[note: 57] No further questions were asked by the Prosecution – either to PW4 or Arunasalam – on what each party would have understood this exchange to mean. This left open the entirely reasonable possibility that Arunasalam could have understood PW4 to be asking whether the “pre-requisite confirmations” boxes in P2 were all ticked and approved by the relevant parties (ie, Syed and Nachiappan), to which Arunasalam had accurately answered in the positive. Given that the Prosecution did not foreclose this possibility, I am not convinced that Arunasalam must have misrepresented to PW4 that Nachiappan had actually conducted the requisite checks when Arunasalam either knew this was not true, or was unsure whether this was true or not.

15     Ultimately, there is simply not enough evidence for the Prosecution to prove that a reasonable man in Arunasalam’s circumstances would have known that there was a likelihood of death or injury, when he passed P2 to PW4 for the latter to sign on it as a project manager. I therefore find that it has not been proved beyond reasonable doubt that Arunasalam had negligently done an act which endangered the safety of others as alleged in the amended charge. Accordingly, Arunasalam is given a discharge amounting to an acquittal on the amended charge.

[note: 1]The Co-Accused was represented by Mr Cosmas Gomez (Cosmas LLC).

[note: 2]See P5, Annex 3.

[note: 3]Notes of Evidence (“NE”), 8 January 2024, Day 9, p 124 line 21 – p 129 line 3.

[note: 4]NE, 15 January 2024, Day 10, p 37, lines 1 – 5.

[note: 5]P5 at A68, P31 at p 3.

[note: 6]P5 at A68, P31 at p 3.

[note: 7]Id.

[note: 8]B1-D8.

[note: 9]NE, 18 December 2023, Day 5, p 4, lines 1 – 27.

[note: 10]P7 at A29 – A31.

[note: 11]NE, 18 December 2023, Day 5, p 120, lines 1 - 9; 19 January 2024, Day 14, p 78, lines 4 – 7.

[note: 12]NE, 17 January 2024, Day 12, p 68, lines 23 – 27.

[note: 13]NE, 21 December 2023, Day 8, p 31 line 27 – p 33 line 27; 8 January 2024, Day 9, p 49, lines 16 - 27, p 60 line 14 – p 61 line 9, and p 108 line 29 – p 110 line 27.

[note: 14]NE, 19 April 2024, Day 16, p 10, lines 4 – 6.

[note: 15]Id., p 16, lines 10 – 17.

[note: 16]See Annex 3 in P5.

[note: 17]NE, 27 June 2023, Day 2, p 33 lines 15 - 18; 18 December 2023, Day 5, p 114, lines 15 – 25; 19 January 2024, Day 14, p 70, lines 17 – 29.

[note: 18]NE, 19 January 2024, Day 14, p 49 line 30 – p 50 line 7.

[note: 19]NE, 27 June 2023, Day 2, p 33, lines 15 – 18.

[note: 20]NE, 26 June 2023, Day 1, p 64, lines 7 – 10. See also NE, 19 January 2024, Day 14, p 71 line 23 – p 72 line 4.

[note: 21]NE, 19 April 2024, Day 16, p 34, lines 27 – 28.

[note: 22]Prosecution’s Closing Submissions (“PCS”) at [65].

[note: 23]NE, 19 April 2024, Day 16, p 32, lines 21 – 24.

[note: 24]P5 at A78.

[note: 25]P5 at A93.

[note: 26]NE, 19 January 2024, Day 14, p 25, line 27 – p 26, line 13.

[note: 27]P5 at A3 and A6.

[note: 28]P5 at A71, A72 and A74.

[note: 29]Defence’s Closing Submissions at [83].

[note: 30]Id. at [88].

[note: 31]NE, 19 January 2024, Day 14, p 78, lines 4 – 7.

[note: 32]NE, 30 June 2023, Day 4, p 52, lines 24 – 29.

[note: 33]NE, 19 January 2024, Day 14, p 67, lines 24 – 26.

[note: 34]NE, 21 December 2023, Day 8, p 122, lines 25 – 28.

[note: 35]Prosecution’s Submissions on Sentence dated 23 July 2024 (“PSS”) at [10(b)].

[note: 36]PSS at [11(b)].

[note: 37]Prosecution’s Reply Submissions dated 12 April 2024 at p 12.

[note: 38]See Annex at [3].

[note: 39]NE, 24 July 2024, Day 18, p 15, lines 14 – 31; p 16, lines 26 – 31.

[note: 40]See P5, A68.

[note: 41]PCS at [32].

[note: 42]P6 at A2, A5 and A13; P7 at A40, A42, A46 and A67.

[note: 43]Arunasalam’s Closing Submissions (“ACS”) at [65].

[note: 44]P5 at A9.

[note: 45]NE, 17 January 2024, Day 12, p 8, lines 10 – 13.

[note: 46]NE, 18 December 2023, Day 5, p 44, lines 13 – 21.

[note: 47]ACS at [110].

[note: 48]P7 at A10.

[note: 49]NE, 19 April 2024, Day 16, p 29, lines 19 – 22.

[note: 50]PCS at [51].

[note: 51]ACS at [34] and [96].

[note: 52]P31 at p 3.

[note: 53]NE, 19 April 2024, Day 16, p 18 line 27 – p 22 line 25.

[note: 54]NE, 17 January 2024, Day 12, p 65 lines 15 – 20; and P5 at A68.

[note: 55]NE, 19 April 2024, Day 16, p 18, lines 9 – 15.

[note: 56]PCS at [71].

[note: 57]NE, 19 December 2023, Day 6, p 36, lines 9 – 18.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing","Criminal Law – Section 417 read with Section 109 Penal Code – Section 3(1)(a) read with section 12 and section 14 Computer Misuse Act"],"date":"2024-08-26","court":"Magistrate's Court","case-number":"Magistrate's Arrest Case No 900708 of 2024 & Ors, Magistrate's Appeals No 9146 of 2024 - 01","title":"Public Prosecutor v Liew Sheng Yan","citation":"[2024] SGMC 59","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32035-SSP.xml","counsel":["DPP Yap Jia Jun for the Public Prosecutor","Victor David Lau Dek Kai (Drew & Napier LLC) for the Accused."],"timestamp":"2024-08-29T16:00:00Z[GMT]","coram":"Kok Shu-en","html":"Public Prosecutor v Liew Sheng Yan

Public Prosecutor v Liew Sheng Yan
[2024] SGMC 59

Case Number:Magistrate's Arrest Case No 900708 of 2024 & Ors, Magistrate's Appeals No 9146 of 2024 - 01
Decision Date:26 August 2024
Tribunal/Court:Magistrate's Court
Coram: Kok Shu-en
Counsel Name(s): DPP Yap Jia Jun for the Public Prosecutor; Victor David Lau Dek Kai (Drew & Napier LLC) for the Accused.
Parties: Public Prosecutor — Liew Sheng Yan

Criminal Procedure and Sentencing – Sentencing

Criminal Law – Section 417 read with Section 109 Penal Code – Section 3(1)(a) read with section 12 and section 14 Computer Misuse Act

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9146/2024/01.]

26 August 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Liew Sheng Yan is a 24-year-old Singaporean male who pleaded guilty to one charge under section 417 read with section 109 of the Penal Code 1993 (the “cheating charge”), and one charge under section 3(1)(a) read with section 12 and section 14 of the Computer Misuse Act 1993 (“CMA”) (the “CMA charge”).

2       Another two charges for offences under section 417 read with section 109 of the Penal Code and one charge for an offence under section 3(1)(a) read with section 12 and section 14 of the CMA were taken into consideration (“TIC”) for the purpose of sentencing.

3       I sentenced the accused to a sentence of 12 weeks’ imprisonment on the cheating charge and 10 weeks’ imprisonment on the CMA charge. Both sentences were ordered to run concurrently for a global sentence of 12 weeks’ imprisonment.

4       The accused is dissatisfied with the sentences imposed and has filed an appeal.

Facts

Facts relating to the cheating charge

5       Sometime in April 2023, the accused was approached by one Chan Zhi Hao Felix (“Felix”), who asked him to open an account with the bank CIMB to transfer money for online gambling purposes. Felix told the accused that his own bank account had been frozen, and he promised that he would pay the accused $2000 in exchange for the use of his CIMB bank account.

6       The accused and Felix had been friends since they were both in secondary school.

7       The accused agreed to Felix’s proposal and proceeded to open an account with CIMB on 24 April 2023 (the “CIMB account”). The account opening form contained an advisory or warning from the Singapore Police Force that stated as follows:

Advisory from the Singapore Police Force – Warning

Your account should be for your own use and you are responsible for all transactions made through your account.

You may be facilitating criminal activities such as money laundering and/or unlicensed moneylending if you:

1. Knowingly allow other people to operate, access and/or control of your account; and/or

2. Knowingly receive money from strangers, dubious sources, or other unverified sources.

You can be prosecuted for the relevant offences if your account is used to receive or transfer money linked to criminal activities. These offences carry a punishment of a fine and/or imprisonment.

You should make the necessary application to your financial institution if you wish to authorise the operation, access and/or control of your account to a third party. A failure to do so would subject your account to additional risk mitigation measures, and in some cases, your financial institution may terminate or restrict your use of your account and other related accounts you may have with your financial institution.

I/We acknowledge that I/we have read and agree to all the above.



8       In the account opening form, the accused declared and confirmed that he was the beneficial owner of the CIMB account, and that he would be transacting for his own account and not on behalf of any other person or entity. The declaration and confirmation made by the accused were deceptive, since his intention was to hand control over the CIMB account to Felix. As a result of this deception, CIMB omitted to conduct due diligence on the ultimate beneficial owner or controller of the CIMB account.

9       On the same occasion that the accused opened the CIMB account, he also opened an internet banking account. He then passed the internet banking login credentials and password to Felix and changed the phone number and email address associated with the internet banking account. In so doing, the accused relinquished control over the CIMB account to Felix.

10     The accused did not receive the $2000 that he was promised by Felix for the CIMB account. Investigations revealed that between 1 June and 31 August 2023, the CIMB account received $26,347.48 in deposits and $26,346.42 was withdrawn. The source of the funds and the reasons for the transfers are unknown.

Facts relating to the CMA charge

11     The accused also had a bank account with the OCBC bank (the “OCBC account”), which he had opened in January 2023 as part of an application for an OCBC credit card but did not use.

12     In June 2023, Felix found out that the accused had the OCBC account and asked for it, so that that he could transfer money for online gambling. Again, he offered to pay the accused $2000 for the OCBC account. The accused agreed to hand over the OCBC account to Felix and did so by handing the internet banking login credentials and password and changed the phone number and email address associated with the internet banking account.

13     By relinquishing control over the OCBC account to Felix, this meant that persons other than the accused would be utilising the internet banking functions to carry transactions in the OCBC account, which meant that the accused and Felix had caused the computer of OCBC to perform functions for the purpose of securing access without authority to programmes held in that computer.

14     The accused did not receive the $2000 that he was promised by Felix for the OCBC account. Investigations revealed that between 25 July and 15 August 2023, the OCBC account received $22,511 in deposits and $13,500 was withdrawn. The source of the funds and the reasons for the transfers are unknown.

Antecedents

15     The accused was untraced.

Prosecution’s sentencing submission

16     The Prosecution sought a global sentence of 3.5 to 4 months’ imprisonment, comprising of a sentence of 3.5 to 4 months’ imprisonment for the cheating charge and 3 to 3.5 months imprisonment for the CMA charge, with both sentences to run concurrently.

17     The Prosecution emphasised the need for deterrence in light of the fact of the scam epidemic in Singapore, and the role that money mules who allow the use of their bank accounts to receive and transfer illicit funds play in this web of criminal conduct. It also highlighted the impact that offences such as these have on the delivery of financial services and the integrity of the economic infrastructure.

18     Reference was made to three case precedents – Tang You Liang Andruew v Public Prosecutor and another appeal [2023] 3 SLR 229 (“Andruew Tang”), Public Prosecutor v Liao Bang Xiong [2023] SGDC 228 (“Liao Bang Xiong”) and Public Prosecutor v Goh Hai Shan [2024] SGDC 178 (“Goh Hai Shan”).

19     All three cases involved offenders who faced charges under section 417 read with section 109 of the Penal Code for conspiring to cheat banks by falsely declaring that they would be the sole operators of the respective bank accounts that they were applying for, when in fact they intended to cede control over these bank accounts to third parties, unbeknownst to the banks. This was conduct not unlike that in the cheating charge in this case. The offender in Goh Hai Shan also faced charges for offences under the CMA, which similarly involved the relinquishing of control over bank accounts to third parties.

20     For the cheating charge, the Prosecution submitted that the accused’s conduct involved a moderate level of harm and culpability. It noted that actual harm had materialised in this case, given that significant sums of money totalling about $26,000 had been transferred through the CIMB account, though the source of these funds and the purpose of the transfers was unknown. The Prosecution argued that this distinguished the case from Andruew Tang, where it was noted by the District Court and the High Court that the bank accounts opened by the offenders had not been misused and thus no serious harm was caused.

21     On the issue of culpability, the Prosecution argued that the accused could not reasonably have believed that he was facilitating lawful or legitimate activity, given that he had been informed by Felix that Felix’s own bank account had been frozen. There was also the police advisory that accompanied the CIMB account opening form that would have put him on notice that the account could be used to facilitate illegal activity.

22     Comparing the present case with Andruew Tang and Liao Bang Xiong, the Prosecution argued that the accused’s level of culpability was more similar to that in Liao Bang Xiong, where the offender knew that his account would be used for illegal activity, specifically unlicenced moneylending. In contrast, the offender Tang in Andruew Tang was found to have a low level of culpability as he did not think that he was doing anything illegal.

23     The Prosecution pointed out that the accused in this case had been motivated by monetary gain, and that there were two other TIC charges involving two other bank accounts.

24     Accordingly, it was submitted that the appropriate sentence for such conduct had the accused elected to claim trial would have been between 5 to 6 months imprisonment, which could then be adjusted downward to account for his plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines, to arrive at a sentence of 3.5 to 4 months imprisonment.

25     The Prosecution argued that the same sentencing considerations applied to the CMA charge, with a further downward adjustment to account for the fact that the accuse did not deceive OCBC into opening a new account but handed over an existing account to Felix. For this charge, the Prosecution thus proposed a sentence of 3 to 3.5 months imprisonment.

26     The Prosecution submitted that both sentences could run concurrently in this case, given that the offence occurred relatively close in time to each other and involved a similar modus operandi with Felix.

Defence’s sentencing submission and mitigation

27     The Defence urged the court to impose a global sentence of not more than 1 week’s imprisonment.

28     In the written mitigation plea, the Defence explained that the accused and Felix became close friends after meeting at the age of 13 when they were both in secondary school. It was highlighted that the accused came from a comfortable family background and had been relatively sheltered for most of his life, and that he worked at his father’s business, which had annual revenues of approximately S$5 million. The Defence’s argument was that the accused was not in financial want, and that he had acted out his trust in his longtime friend.

29     The Defence’s account of how the accused came to be involved in these offences was that Felix told the accused that he had been making money online via online gambling, and that he could gain greater rewards and bonuses by topping up his gaming account with new bank accounts. Felix claimed that his own bank account had been frozen and asked the accused to open and give him access to new bank accounts so as to enable Felix to continue earning these rewards and bonuses. Felix assured the accused that the opening of these bank accounts was “unlikely to be illegal, and that even if it was illegal, it was only Felix who was committing a crime since he was the one who was actually using the bank accounts”[note: 1]. The Defence’s position was that in his naivety, the accused completely trusted Felix and believed that he was doing nothing wrong.

30     The Defence argued that even in cases where an offence concerns public interest, a sentencing judge ought not to place undue weight on the consideration of public interest without ensuring that the sentence passed is proportionate to the severity of the offence and the culpability of the offender, citing the case of Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR 653 as the authority for this proposition.

31     With regard to the cheating charge, the Defence argued that the facts in this case were analogous to that of the offender e present case, noting that the offender Andruew Tang You Liang (“Tang”), one of the two offenders who were dealt with in Andruew Tang, in that both of them were not the masterminds and did not act on behalf of syndicates. Unlike the offender Tang who had claimed trial, the accused had elected to plead guilty at an early stage.

32     The Defence also argued that assessment that Tang’s culpability was low applied equally to the accused’s level of culpability in this case, noting that Tang had reviewed bank account opening advisories in the same fashion as the accused. It was also noted that Tang was engaged in an enterprise of being a nominee director and did so for financial gain, which the Defence argued was not present in the accused’s case since he was from a well-to-do family and had no need for the monies offered by Felix.

33     As for the case of Liao Bang Xiong, the Defence argued that this was a far more aggravated case than the present, as the offender there clearly understood that the bank account in question would end up being used by unlicensed moneylenders and even attempted to restrict access to the bank account in an attempt to steal the tainted monies from the account for himself and his accomplices. Contrast was also drawn between the antecedents of the offender in Liao Bang Xiong and the accused who was a first offender, emphasising that the accused in this case was truly “some simpleton who had been made use of” by Felix (see [22] of Liao Bang Xiong).

34     Accordingly, the Defence argued that a sentence of one week’s imprisonment was appropriate for the cheating charge, bearing in mind the similarities with the offender Andruew Tang who was also sentenced to one week’s imprisonment for each charge under section 417 read with 109 of the Penal Code that he claimed trial to.

35     As for the CMA charge, the Defence argued that a similar sentence of one week’s imprisonment ought to be imposed having regard to the principle of proportionality.

36     Reference was made to the case of Public Prosecutor v Tay Bee Lang [2021] SGDC 4 (“Tay Bee Lang”), which involved offences under section 417 of the Penal Code and section 3 of the CMA but in the context of the use of a lost credit card to make unauthorised purchases. In that case, the offenders were sentences to 3 weeks’ imprisonment for the offence under section 417 of the Penal Code and 2 weeks’ imprisonment for the section 3 CMA offence.

37     The Defence argued the case of Tay Bee Lang engaged a specific public interest in checking credit card fraud, but that no such similar concern was engaged in the present case. Accordingly, a downward calibration from the sentence imposed in Tay Bee Lang to arrive at one week’s imprisonment was appropriate.

38     The Defence agreed with the Prosecution that the sentences on both the cheating charge and the CMA charge ought to run concurrently for a global sentence of one week’s imprisonment.

Reasons for the sentences imposed

Punishment provisions

39     Pursuant to section 417 of the Penal Code, the cheating charge in this case is punishable with imprisonment for a term not exceeding 3 years, or with a fine, or both.

40     As for the CMA charge, section 3 of the CMA provides that this offence may be punished with a fine not exceeding $5,000, or to imprisonment for a term not exceeding 2 years, or to both.

Sentencing considerations

41     I agreed with the Prosecution’s submission that general deterrence is the dominant sentencing consideration in the present case, which concerns the abuse of bank accounts to facilitate illicit fund flows through the banking system. As the Prosecution aptly described, Singapore is in the throes of a scam epidemic, as a worrying upward trend of scam cases has continued to build in recent years. Shortly after I had rendered my decision in this case, the Ministry for Home Affairs released statistics that showed that victims in Singapore had lost $385.6 million in the first six months of 2024, which was a 16.3 percent increase for the amount lost over the same period in the previous year.[note: 2]

42     The success of these criminal schemes rests largely on the ability of bad actors not only to deceive victims into parting with their money, but also in the subsequent squirrelling away of the funds through bank accounts. These bank accounts do not belong to the scammers themselves, but third parties who are persuaded into ceding control over bank accounts that they have opened. The conduct of the accused in this case – in opening and relinquishing control over his bank accounts to a third party – is exactly the sort of conduct that is enabling the funnelling of funds away from victims of scams.

43     That said, I agreed with the Defence that the mere fact that there are public interest considerations engaged in a particular offence ought not to mean that the sentence imposed can be indiscriminately deterrent without regard to proportionality, and that a careful analysis of the specific harm and culpability factors in each case must be carried out.

44     On the issue of harm, while I have noted that the relinquishing of bank accounts to third parties enables the laundering of scam proceeds, there was no indication in the present case that any of the bank accounts that the accused handed over to Felix were in fact involved in transactions of illicit funds. The Statement of Facts indicated that the source and purpose of the transfers in the CIMB and OCBC accounts remained unknown.[note: 3] The amounts of transactions were also fairly modest, at about $26,000 for the CIMB account and $20,000 for the OCBC account. This stood in contrast with the very substantial amounts involved in the case of Goh Hai Shan and some of the unreported cases noted at [40] of that decision.

45     As for the level of culpability, I was not persuaded by the Defence’s arguments that the accused’s level of culpability was comparable to that of the offender Tang in Andruew Tang, who was regarded as being of low culpability (see Public Prosecutor v Tang You Liang Andrew and another [2021] SGDC 266 at [137]).

46     Unlike many of the offenders in similar cases who relinquish their bank accounts to unknown persons that they meet online, I accepted that there was a basis for the accused to trust Felix in this case given that they had been friends for a long time. However, I did not think that this factor alone significantly reduced his level of culpability. Even by the Defence’s own account of the events, Felix’s representations to the accused were full of red flags that the bank accounts were not being handed over for innocent purposes.

47     First, there is the fact that Felix’s own bank account had been frozen and could not be used, which led him to ask the accused for bank accounts. This would have alerted the accused to the fact that whatever Felix had been doing with his bank account had already led to action being taken on the bank account.

48     Second, Felix assured the accused that what Felix was asking of the accused was “unlikely to be illegal, and that even if it was illegal, it was only Felix who was committing a crime since he was the one who was actually using the bank accounts”[note: 4]. As I pointed out to Counsel for the Defence in court, I found it disturbing that the accused would happily hand over his bank account to Felix even after Felix had told him plainly that there was a chance that Felix could be committing a crime by using the bank account.[note: 5] I did not think that this was something that could be accounted for by simple naiveness. Even if the accused had no direct knowledge of what the bank account would eventually be used for, this signalled to me that he had no issues even if Felix’s use of the account turned out to be an offence.

49     Third, there was the promise of substantial rewards for each bank account that was handed over to Felix. As the Prosecution put it, this was a disproportionately and illogically large reward for the handing over of a bank account. While the Defence claimed that the accused had no need for these rewards given his family’s wealth, it nevertheless remained an agreed fact that this reward was a part of Felix’s offer that the accused accepted.

50     Additionally, there was also the fact that the accused had been put on notice by the police advisory that accompanied the CIMB account opening form, which clearly alerted him to the risks that accompanied ceding control of his bank account to a third party, including the risk that the bank account could be used for illegal purposes.

51     The Defence asserted that the offender in Andruew Tang also received similar advisories when he opened the bank accounts in that case but was unable to point me to the specific reference in the written decisions where this was indicated.[note: 6] Instead, what appears to have been presented to the offender in Andruew Tang was a declaration of the ultimate beneficial owner (“UBO”) of the account (as described at [7] of Andruew Tang). To my mind, the nature of this UBO declaration is significantly different from the police advisory that was before the accused when he opened the CIMB account, and accordingly the level of notice that the accused was given was also significantly greater.

52     As for the comparison with Liao Bang Xiong, I accepted that there were aspects of that case that were more aggravated than the present case, such as the level of knowledge of what the bank account would be used for, the conduct in attempted to steal the tainted proceeds, and the offender’s antecedents.

53     However, the offender in Liao Bang Xiong ultimately only handed over one bank account to a third party. In contrast, the accused in this case ceded control over four bank accounts – the CIMB account, the OCBC account and two other bank accounts that formed the subject matter of the TIC charges.

Sentences imposed

54     On a balance of these factors, in my view, the level of culpability of the accused in this case was closer to that of the offender in Liao Bang Xiong and not to that in the case of Andruew Tang.

55     While the case of Tay Bee Lang also involved charges under the same provisions, this was in fact a case involving credit card fraud, which is factually quite distinct from the present case and as such I did not think that it was such a helpful reference point compared to Liao Bang Xiong and Andruew Tang.

56     While I accepted that the accused did not have the same level of knowledge that the offender in Liao Bang Xiong had, i.e. he did not know what the bank accounts were going to be used for, I did not think that it lay in his mouth to claim that he did not think he was doing anything wrong, given the circumstances under which the accused acceded to Felix’s offer to essentially purchase his bank accounts from him as I outlined at [46] to [51] above. These circumstances were quite sufficient for him to know that the bank accounts were not being handed over for legitimate purposes, even if he did not know exactly what that illegitimate purpose might be.

57     There was also the fact that the accused engaged in this conduct repeatedly – apart from the CIMB account and the OCBC account that were the subject matter of the proceeded charges, there were two other bank accounts that were subject matters of the TIC charges.

58     Weighing these factors alongside the level of harm and considering the sentences imposed in Liao Bang Xiong and Goh Hai Shan, in my view the appropriate sentence for the cheating charge was 12 weeks’ imprisonment, and the appropriate sentence for the CMA charge was 10 weeks’ imprisonment.

Global sentence

59     While both the cheating charge and the CMA charge concerned different bank accounts and therefore different legally protected interests, in my view, it was not necessary in this case to order both sentences to run consecutively.

60     Considering the overall conduct of the accused’s conduct over all the charges, which involved the same conspirator and similar modus operandi, in my view that the overall sentence of 12 weeks’ imprisonment adequately reflected the accused’s criminality in this case.

Conclusion

61     For the reasons set out above, I imposed a global sentence of 12 weeks’ imprisonment on the accused.

62     The accused is currently on bail pending appeal.

[note: 1]See Defence’s Mitigation Plea at [15]

[note: 2]The Straits Times, 22 August 2024, “Scam victims in S’pore lost $385.6m in first half of 2024 as number of cases hit high of 26,587”

[note: 3]See Statement of Facts at [7] and [11]

[note: 4]See Defence’s Mitigation Plea at [15]

[note: 5]Notes of Evidence on 30 July 2024, page 10 line 28

[note: 6]Ibid, page 11 line 21 to page 12 line 22

"}] \ No newline at end of file +[{"tags":["Criminal Law – Offences – Misuse of Drugs Act","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-11-15","court":"District Court","case-number":"District Arrest Case No. 902772 of 2024 and 8 others, Magistrate's Appeal No. 9199 of 2024-01","title":"Public Prosecutor v Mohamad Raden Iskandar bin Ismail","citation":"[2024] SGDC 295","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32475-SSP.xml","counsel":["State Prosecuting Officer Wilfred Dennis Philomin for the Public Prosecutor","Vadivalagan s/o P V Shanmuga Sundaram (Public Defender's Office) for the Offender."],"timestamp":"2024-11-21T16:00:00Z[GMT]","coram":"Kelly Ho","html":"Public Prosecutor v Mohamad Raden Iskandar bin Ismail

Public Prosecutor v Mohamad Raden Iskandar bin Ismail
[2024] SGDC 295

Case Number:District Arrest Case No. 902772 of 2024 and 8 others, Magistrate's Appeal No. 9199 of 2024-01
Decision Date:15 November 2024
Tribunal/Court:District Court
Coram: Kelly Ho
Counsel Name(s): State Prosecuting Officer Wilfred Dennis Philomin for the Public Prosecutor; Vadivalagan s/o P V Shanmuga Sundaram (Public Defender's Office) for the Offender.
Parties: Public Prosecutor — Mohamad Raden Iskandar Bin Ismail

Criminal Law – Offences – Misuse of Drugs Act

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9199/2024/01.]

15 November 2024

District Judge Kelly Ho:

1       The Defence had submitted for the mandatory minimum sentences in respect of the three proceeded drug charges against Mohamad Raden Iskandar bin Ismail (“the Offender”), a 30-year-old male repeat drug offender. I agreed with their submissions and meted out the sentences sought. In respect of the drug consumption charge, I further imposed an enhanced sentence of 78 days’ imprisonment as requested by the Defence. Given that the Offender was sentenced to the mandatory minimum sentences and in accordance with the Defence’s submissions, there does not appear to any basis for his appeal against sentence.

Introduction

2       On 11 October 2024, the Offender pleaded guilty to the following three charges:

DAC-902772-2024

(“LT2 Charge”)

Consumption of a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act 1973 (“MDA”), to wit, Methamphetamine, an offence under s 8(b)(ii) punishable under s 33A(2) of the MDA and s 50T(1)(a) of the Prisons Act 1933 (“PA”)

DAC-906202-2024

(“Enhanced Possession Charge”)

Possession of a Class A Controlled Drug listed in the First Schedule to the MDA, to wit, two packets of crystalline substance which was analysed and found to contain not less than 0.28g of Methamphetamine, an offence under s 8(a) punishable under s 33(3B) of the MDA and s 50T(1)(a) of the PA

DAC-906205-2024

(“Enhanced Possession Charge”)

Possession of a Class A Controlled Drug listed in the First Schedule to the MDA, to wit, two packets of crystalline substance which was analysed and found to contain not less than 0.81g of Methamphetamine, an offence under s 8(a) punishable under s 33(3B) of the MDA and s 50T(1)(a) of the PA



3       The Offender also consented to six charges being taken into consideration for the purposes of sentencing, viz, one charge punishable under s 290 of the Penal Code 1871 (“PC”), two charges under s 9 punishable under s 33(1) of the MDA, one charge under s 8(b)(ii) punishable under s 33A(2) of the MDA, and one charge each punishable under ss 380 and 379 of the PC. All six charges were also punishable under s 50T(1)(a) of the PA.

4       The Prosecution’s and the Defence’s respective sentencing positions (with the differences underlined) are set out in the table below:

Charge

Prosecution’s position[note: 1]

Defence’s position[note: 2]

The LT2 Charge

Seven years and six months’ imprisonment and an enhanced sentence of 78 to 156 days’ imprisonment with six strokes of the cane (consecutive)

Seven years’ imprisonment and an enhanced sentence of 78 days’ imprisonment with six strokes of the cane (consecutive)

Enhanced Possession Charges

Two years’ imprisonment per charge

DAC-906202-2024 (concurrent) & DAC-906205-2024 (consecutive)

Total sentence

Nine years and six months’ imprisonment and an enhanced sentence of 78 to 156 days’ imprisonment with six strokes of the cane

Nine years’ imprisonment and an enhanced sentence of 78 days’ imprisonment with six strokes of the cane



5       I sentenced the Offender in accordance with the Defence’s position to an overall sentence of nine years’ imprisonment and an enhanced sentence of 78 days’ imprisonment with six strokes of the cane. The sentence of imprisonment was backdated to the date of the Offender’s second arrest, viz, 30 November 2023 (excluding the period he was on bail, viz, 3 to 6 February 2024).

6       The Offender has filed an appeal against sentence and is currently serving his sentence.

Facts

7       The salient parts of the Statement of Facts which the Offender admitted to without qualification were as follows.

Facts pertaining to the LT2 Charge

8       On 20 November 2023, the Offender was arrested at Selarang Halfway House for drug offences. His urine samples were analysed by the Health Sciences Authority (“HSA”) and found to contain Methamphetamine, a Specified Drug listed in the Fourth Schedule to the MDA. The Offender last consumed ‘ice’ (street name for Methamphetamine) about five days prior to his arrest. He was not authorised under the MDA or the regulations made thereunder to consume Methamphetamine.

9       Before the commission of the said offence, the Offender had been convicted of an offence under s 8(b)(ii) punishable under s 33A(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“2008 MDA”) on 13 January 2020 in District Court 10B vide DAC-900768-2019 and was sentenced to five years and 116 days’ imprisonment with three strokes of the cane, which conviction had not been set aside.

Facts pertaining to DAC-906202-2024 – Enhanced Possession Charge

10     On 20 November 2023, the Offender was arrested at Selarang Halfway House for drug offences. Two packets of crystalline substance were found in his pants. They were analysed by HSA and found to contain not less than 0.28g of Methamphetamine. The two packets were meant for the Offender’s own consumption. He was not authorised under the MDA or the regulations made thereunder to possess Methamphetamine.

11     Before the commission of the said offence, the Offender had been convicted of an offence under s 8(a) of the 2008 MDA on 19 October 2015 in District Court 24 vide DAC-933325-2015 and was sentenced to six months’ imprisonment, which conviction had not been set aside.

Facts pertaining to both the LT2 Charge and DAC-906202-2024

12     Additionally, from 6 September 2022 to 11 July 2024, the Offender was subject to a remission order made by the Commissioner of Prisons under Division 2 or 3 of Part VB of the PA which remission order was subject to the basic condition under s 50S(1) of the PA and while the remission order was in effect, the Offender on 20 November 2023 committed the two offences above and upon conviction and the imposition of sentences reflected under s 50S(1)(b) of the PA, was deemed to have breached the basic condition of his remission order. He was thereby liable to be punished with an enhanced sentence of imprisonment for a term not exceeding the remaining duration of the remission order of 235 days from 20 November 2023 to 11 July 2024 for both offences.

Facts pertaining to DAC-906205-2024 – Enhanced Possession Charge

13     On 6 February 2024, the Offender was arrested for drug offences while on bail for the above two offences. Two packets of crystalline substance were found in his pocket. They were analysed by HSA and found to contain not less than 0.81g of Methamphetamine. The two packets were meant for the Offender’s own consumption. He was not authorised under the MDA or the regulations made thereunder to possess Methamphetamine.

14     Before the commission of the said offence, the Offender had been convicted of an offence under s 8(a) of the 2008 MDA on 19 October 2015 in District Court 24 vide DAC-933325-2015 and was sentenced to six months’ imprisonment, which conviction had not been set aside.

15     Additionally, from 6 September 2022 to 11 July 2024, the Offender was subject to a remission order made by the Commissioner of Prisons under Division 2 or 3 of Part VB of the PA which remission order was subject to the basic condition under s 50S(1) of the PA and while the remission order was in effect, the Offender on 20 November 2023 committed the said offence and upon conviction and the imposition of a sentence reflected under s 50S(1)(b) of the PA, was deemed to have breached the basic condition of his remission order. He was thereby liable to be punished with an enhanced sentence of imprisonment for a term not exceeding the remaining duration of the remission order of 157 days from 6 February 2024 to 11 July 2024.

Prescribed penalties

16     The prescribed punishment for the LT2 Charge and Enhanced Possession Charges are as follows:

LT2 Charge

Imprisonment for a term of not less than seven years and not more than 13 years, and not less than six strokes and not more than 12 strokes of the cane.

Enhanced Possession Charges

Imprisonment for a term of not less than two years and not more than 10 years and shall also be liable to a fine not exceeding $20,000.



Antecedents

17     The Offender’s prior drug-related convictions are set out in the table below.

S/N

Date of conviction

Offence

Sentence

1

19/10/2015

Unauthorised possession of a controlled drug under s 8(a) punishable under s 33(1) of the 2008 MDA

6 months’ imprisonment

2

10/01/2018

Failure to provide specimen of urine for urine test under s 31(2) punishable under s 33(1) of the 2008 MDA

8 months’ imprisonment

3

13/01/2020

Consumption of a specified drug under s 8(b)(ii) punishable under s 33A(1) of the 2008 MDA and s 50T(1)(a) of the PA (“LT1 Offence”)

5 years’ imprisonment and enhanced sentence of 116 days’ imprisonment with 3 strokes of the cane



Parties’ submissions

Prosecution’s address on sentence

18     I will focus on the Prosecution’s submissions on the LT2 Charge since parties were aligned in respect of the sentences for the Enhanced Possession Charges. The Prosecution sought a six-month uplift from the mandatory minimum of seven years’ imprisonment on account of the charges that were taken into consideration for sentencing.[note: 3] For the enhanced sentence under s 50T(1)(a) of the PA, the Prosecution referred to Abdul Mutalib bin Aziman v PP [2021] 4 SLR 1220 (“Abdul Mutalib”) which set out the factors for consideration and appropriate sentencing bands (at [47]):[note: 4]

Band

Degree of severity

Sentencing range (relative to remaining duration of remission order)

1

Low

Up to 1/3

2

Moderate

1/3 to 2/3

3

High

2/3 to full remaining duration



19     The Prosecution highlighted that the Offender’s current drug consumption offence was of a similar nature to his previous LT1 offence and was committed approximately one year and two months after he was released on remission. It was thus of the view that this was a Band 2 case and the appropriate enhanced sentence should be 78 to 156 days’ imprisonment (between 1/3 and 2/3 of 235 days).[note: 5]

20     As regards the total sentence, the Prosecution urged the Court to run the sentences for the LT2 Charge and DAC-906205-2024 consecutively given the requirement under s 307 of the Criminal Procedure Code 2010 (“CPC”) and as they involved distinct legally protected interests.[note: 6] Their resultant sentencing position was thus nine years and six months’ imprisonment and an enhanced sentence of 78 to 156 days’ imprisonment with six strokes of the cane.

Defence’s mitigation plea

21     Similarly, I will only cover the Defence’s submissions in respect of the LT2 Charge. The Defence submitted that there should not be an uplift from the mandatory minimum sentence of seven years’ imprisonment as it was the Offender’s first LT2 conviction.[note: 7] Additionally, the imposition of six strokes of cane per se was sufficient deterrence.[note: 8]

22     In the alternative, the Defence reasoned that an uplift of no more than two weeks would suffice.[note: 9] It referred to PP v Azman bin Abdul Karim [2020] SGDC 276 where the offender was only given a two-week uplift from his previous LT2 sentence despite being a repeat LT2 offender and on the run when he committed the LT2 offence, and having three drug-related charges taken into consideration.[note: 10]

23     The Defence agreed with the Prosecution that the Offender fell within Band 2 of the Abdul Mutalib sentencing ranges.[note: 11] Given that the Offender was already facing a lengthy incarceration period of nine years’ imprisonment and six strokes of the cane, the Defence sought an enhanced sentence at the lower end of the range, viz, 78 days.[note: 12]

24     In terms of the global sentence, the Defence was in agreement with the Prosecution that the sentences for the LT2 Charge and DAC-906205-2024 should run consecutively, resulting in nine years’ imprisonment and an enhanced sentence of 78 days with six strokes of the cane .[note: 13]

Decision on sentence

25     I accepted the Defence’s sentencing positions and its supporting arguments. For the LT2 Charge, given that the mandatory minimum sentence was already seven years’ imprisonment with six strokes of the cane and it was the Offender’s first LT2 conviction, I did not think any uplift was warranted. As for the enhanced sentence, an imprisonment term on the lower end was apposite given the lengthy custodial term and substantial number of strokes of the cane that the Offender faced. There was consensus that the mandatory minimum sentence should be imposed for the Enhanced Possession Charges without any uplift or enhanced sentence.

26     I therefore imposed the mandatory minimum sentences in respect of all three proceeded charges, viz, seven years’ imprisonment and six stokes of the cane for the LT2 Charge and two years’ imprisonment per charge for the Enhanced Possession Charges. I further meted out an enhanced sentence of 78 days’ imprisonment for the LT2 Charge.

27     Pursuant to s 307 of the CPC, two of the sentences had to run consecutively as the Offender was convicted and sentenced to imprisonment for at least three distinct offences. Both parties submitted that the sentences for the LT2 Charge and DAC-906205-2024 should run consecutively and I so ordered. The aggregate sentence was thus nine years’ imprisonment and an enhanced sentence of 78 days’ imprisonment with six strokes of the cane.

28     For completeness, I noted that the Offender had tendered his own written mitigation plea in which he urged the Court to run the sentences for the LT2 Charge and the “1 Theft Charge” consecutively.[note: 14] He added that “The Total Sentence Of 9 Years And 11 Months [that the Prosecution sought] Is a (sic) Unreasonable Sentencing Position” and raised several cases in which the lengthiest sentences were not ordered to run consecutively.[note: 15] In respect of the enhanced sentence, the Offender sought a “Lower Position” than the Prosecution’s position of 156 days.[note: 16]

29     As I had explained to the Offender during the plead guilty mention on 11 October 2024, I could not run the sentence for the theft charge consecutively as he had not been convicted, let alone sentenced for the theft charge.[note: 17] By operation of law, I had no discretion but to run the sentences for the LT2 Charge and one of the Enhanced Possession Charges consecutively.[note: 18] I had asked the Offender twice whether he understood this and he answered in the affirmative.[note: 19] When I informed him that I was unable to accede to his request, the Offender had accepted this and replied, “Okay, Your Honour”.[note: 20] I invited both him and his defence counsel to raise any further issues and they both declined.[note: 21] It bears highlighting that the Offender was represented by a defence counsel throughout the plead guilty mention and counsel had also advised him that his request was not possible.[note: 22]

Conclusion

30     The sentences for the three proceeded charges were the mandatory minimum and could not have been reduced. I was also compelled by law to run two of the sentences consecutively and had to run the sentences for the LT2 Charge and one of the Enhanced Possession Charges consecutively. As for the enhanced sentence, I had imposed a sentence at the lower end of the sentencing range. The eventual sentence was thus nine years’ imprisonment and an enhanced sentence of 78 days’ imprisonment with six strokes of the cane.

[note: 1]Prosecution’s Sentencing Submissions dated 8 October 2024 (“PS”) at page 1.

[note: 2]Defence’s Plea-in-Mitigation (“DS”) at para 12.

[note: 3]PS at page 1.

[note: 4]PS at page 2.

[note: 5]Ibid.

[note: 6]Ibid.

[note: 7]DS at para 13.

[note: 8]Ibid.

[note: 9]DS at para 14.

[note: 10]DS at paras 18 and 19.

[note: 11]DS at para 22.

[note: 12]DS at para 24.

[note: 13]DS at para 12.

[note: 14]Offender’s Mitigation Letter (“OML”) at page 1.

[note: 15]OML at pages 1 to 3.

[note: 16]OML at page 3.

[note: 17]Notes of Evidence (“NE”), 11 October 2024, p 12, lines 11 to 14.

[note: 18]NE, 11 October 2024, p 12, lines 14 to 17.

[note: 19]NE, 11 October 2024, p 12, lines 18 to 21.

[note: 20]NE, 11 October 2024, p 12, lines 22 to 24.

[note: 21]NE, 11 October 2024, p 12, lines 25 to 32.

[note: 22]NE, 11 October 2024, p 11, lines 29 to 30.

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Public Prosecutor v Rajpal Singh
[2024] SGMC 80

Case Number:Magistrate's Arrest Case No. 910838 of 2021 & 7 Ors, Magistrate's Appeal No. 9170-2024-01
Decision Date:14 November 2024
Tribunal/Court:Magistrate's Court
Coram: Sharmila Sripathy-Shanaz
Counsel Name(s): Selene Yap and Gladys Lim (Attorney-General's Chambers) for the Public Prosecutor; Anil Murkoth Changaroth (RHTLaw Asia LLP) for the Accused.
Parties: Public Prosecutor — Rajpal Singh

Criminal Law – Statutory Offences – Penal Code – Outrage of Modesty

Criminal Procedure and Sentencing – Joint Trial

Evidence – Standard of Proof – Unusually Convincing Standard – Corroboration

Evidence – Principles – Considerations in Cases of Sexual Violence

Criminal Procedure and Sentencing – Sentencing – Principles

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9170/2024/01.]

14 November 2024

District Judge Sharmila Sripathy-Shanaz:

Introduction

1       The accused, Rajpal Singh (“the Accused”) claimed trial to eight counts of outraging the modesty of four women.[note: 1] It was alleged that the Accused had either slapped or smacked the buttocks, touched the breasts or touched the vaginas of the four complainants during yoga classes under his tutelage at ‘Trust Yoga’.[note: 2]

2       Following the trial, I convicted the Accused of five charges of molestation pertaining to three complainants and sentenced him to a total of 23 months’ imprisonment and 4 strokes of the cane. I acquitted him of three charges pertaining to the remaining complainant.

3       Dissatisfied with his conviction and sentence, the Accused has filed an appeal. These grounds incorporate the detailed oral remarks I had delivered at the time of convicting and sentencing him.

4       As an order under s 7(3) of the State Courts Act 1970 is in force to protect the identity of the complainants, their names have been replaced with an alphabetic mnemonic in these grounds:

(a)     PW1 – Ms C

(b)     PW3 – Ms V

(c)     PW4 – Ms Y

(d)     PW5 – Ms R

The Charges

5       The Accused was convicted of the following charges which averred that he had intended to outrage the modesty of the Ms C, Ms R and Ms V in the following manner:

1st Charge

MAC-910838-2021

On one occasion in November 2019, at Trust Yoga, used criminal force on Ms R by using his hand to slap her buttock.

7th Charge

MAC-910844-2021

On one occasion sometime after 30 September 2019 to around 11 March 2020, at Trust Yoga, used criminal force on Ms V by using his hand to slap her buttock.

8th Charge

MAC-910845-2021

On one occasion sometime after 30 September 2019 to around 11 March 2020, at Trust Yoga, used criminal force on Ms V by using his hand to touch her vagina.

9th Charge

MAC-910846-2021

On 11 July 2020 between 4.30pm and 5.30pm, at Trust Yoga, used criminal force on Ms C by smacking her buttock with his hand.

10th Charge

MAC-910847-2021

On 11 July 2020 between 4.30pm and 5.30pm, at Trust Yoga, used criminal force on Ms C by touching one of her butt cheeks to her vagina to her other butt cheek using his hand.



6       The Accused was acquitted of the following charges which averred that he had intended to outrage the modesty of Ms Y in the following manner:

4th Charge

MAC-910841-2021

On one occasion in January 2020, at Trust Yoga, used criminal force on Ms Y by touching her vagina with his hand.

5th Charge

MAC-910842-2021

On a second occasion between 8 January and 28 July 2020, at Trust Yoga, used criminal force on Ms Y by touching her breast with his hand.

6th Charge

MAC-910843-2021

On one occasion between 8 January 2020 and 28 July 2020, at Trust Yoga, used criminal force on Ms Y by touching her breasts with his hands.



Summary of the Parties’ Case

7       Given the breadth and multiplicity of the allegations, I begin by summarising the evidence led at trial and the key planks of the parties’ respective cases.

The Prosecution’s Case

Complainants’ evidence

8       On 13 July 2020, Ms C lodged a police report stating that she had been molested at Trust Yoga, two days earlier.[note: 3] Ms C began attending yoga classes at Trust Yoga in March 2020. In all, she attended ten classes with various teachers including the Accused.[note: 4] Her last class was on 11 July 2020, the day of the incidents. Ms C testified that the Accused had molested her twice during this class by:

(a)     slapping her left butt cheek whilst she was in a Forward Bend Pose.[note: 5] This formed the 9th Charge; and

(b)     swiping his hand from her left butt cheek to her vagina and thereafter to her right butt cheek whilst she was in an inverted pose known as the Pincha Mayurasana (“Pincha Pose”).[note: 6] This formed the 10th Charge.

9       After class, Ms C exchanged text messages with her friend[note: 7] (“Ms J”) and her mother,[note: 8] and spoke to Mr Arvind Ganaraj (“Mr Arvind”), an assistant sales manager at Trust Yoga, about what had transpired during the class. Ms C’s exchange with Mr Arvind continued via text message[note: 9] and over several phone calls in the early hours of 12 July 2020.[note: 10]

10     On 12 July 2020, Ms C and her father discussed the incidents during a meeting with the owners of Trust Yoga, Ms Wong Shiou An (“Ms Shiou An”) and Mr Manoj Kumar Deshwal (“Mr Manoj”).[note: 11] On 31 July 2020, Ms C posted about her experience on Twitter.[note: 12] On 18 August 2020, she lodged an online police report pertaining to the same matter, as she wanted to ensure that the facts she had mentioned to the police during the first report, had been recorded accurately.[note: 13]

11     Ms R and Ms Y reached out to Ms C online, on 5 August 2020 and 18 August 2020 respectively,[note: 14] after reading about her experience. They subsequently made police reports about their own encounters with the Accused.

12     In this regard, on 5 August 2020, Ms R lodged a police report stating that the Accused had smacked her on the bum after adjusting her during a class sometime in November 2019.[note: 15] This formed the 1st Charge. It was not in dispute that Ms R was in a Forward Bend Pose when the alleged act occurred.[note: 16] She subsequently detailed her experience in a Facebook post.[note: 17] Ms R had been a student of Trust Yoga since October 2019. Her last lesson was on 4 August 2020.[note: 18]

13     On 24 August 2020, Ms Y lodged a police report stating that she had been molested by the Accused several times. In court, she explained that:

(a)     on one occasion, whilst in a Centre Split Pose, the Accused had placed his hand on her vagina. This formed the 4th Charge; and

(b)     on more than one occasion, whilst in a Bow Pose, the Accused had groped her breasts. This formed the 5th and 6th Charges.

14     Ms Y had been a student of Trust Yoga since September 2019 and attended group classes as well as personal training sessions with the Accused.[note: 19]

15     Separately, on 25 August 2020, Ms V contacted one Ni Chia Min Judy (“Judy”) on Facebook after seeing the latter’s Google review on Trust Yoga.[note: 20] Judy referred Ms V to Ms C.[note: 21] On 29 August 2020, Ms V lodged a police report[note: 22] stating that the Accused had touched her inappropriately:

(a)     by smacking her butt cheeks when she was in a Forward Bend Pose. This formed the 7th Charge; and

(b)     by swiping his hand across her vagina when she was performing an Inner Thigh Stretch. This formed the 8th Charge.

16     Ms V was a student at Trust Yoga between 30 September 2019 and 29 July 2020.[note: 23]

17     At trial, parties agreed that the following illustrations broadly depicted the various poses assumed by the complainants:

Forward Bend Pose [note: 24]

\"\"

Pincha Pose [note: 25]

\"\"

Inner Thigh Stretch [note: 26]

\"\"

Center Split Pose [note: 27]

\"\"

Bow Pose [note: 28]

\"\"

Prosecution’s submissions

18     Broadly, it was the Prosecution’s case that the complainants were credible witnesses whose accounts were unusually convincing, compelling and bolstered by (i) the absence of any reason to fabricate evidence against the Accused, and (ii) their palpable distress when recounting the incidents in court.[note: 29] It was also argued that there was no evidence of collusion[note: 30] and that Ms V, Ms R and Ms Y had given credible explanations for their delayed reporting of the incidents.[note: 31]

19     In contrast, the Prosecution submitted that the Accused was an evasive witness who had given inconsistent evidence and made use of his position as a yoga teacher to commit the offences.[note: 32] It was further submitted that the Accused’s alternative defence to the charges involving Ms V and Ms R, viz. the assertion that if he had touched the complainants as alleged it was merely to adjust them, was internally inconsistent with his primary position that he had never touched their private parts.[note: 33]

20     The Prosecution asserted that the evidence of the Defence witnesses was irrelevant as none of them had witnessed the incidents in question.[note: 34]

The Defence’s Case

Accused’s evidence

21     The Accused was a yoga instructor at Trust Yoga from 1 April 2019 till he was placed on a leave of absence on 3 August 2020 as a result of police investigations into Ms C’s complaint.[note: 35]

22     It was the Accused’s practice[note: 36] to adjust his students by “tapping” on the body part that he wanted them to focus on as he found this was more effective than giving verbal cues.[note: 37] He gave the examples of tapping a student on the leg if it was not straight or tapping the student’s hand if it was improperly positioned.[note: 38] He explained that whilst he used the term “tap” to describe how he undertook adjustments, “the same action [could] be called a slap” by “a layman or an outsider”.[note: 39]

23     The Accused denied committing the physical acts alleged by the complainants and testified that no yoga adjustments would necessitate touching or tapping a student’s private parts which he agreed, encompassed the buttocks, penis, vagina and breasts.[note: 40] He gave evidence that he would “never tap anyone at the wrong part of the body”[note: 41] because he knew that he was not supposed to do so.[note: 42] He was thus “very careful” not to touch a student’s private parts during adjustments to their yoga posture.[note: 43]

24     At trial, the Accused asserted that he would never tap a student on “the centre part of the hip”. He clarified that this phrase was a reference to the left and right butt cheek.[note: 44] A photograph of the Accused demonstrating what he coined, “the centre part of the hip”, was admitted in evidence as Exhibit D7:

\"\"

25     The Accused explained the adjustments he would typically make to the various poses of relevance to the trial (reproduced at [17] above):

Forward Bend Pose

If the student’s back is not completely bent forward, he will tap their back to alert them to bend forward. If the student is a beginner, he will push the lower back down slightly.[note: 45] If the student’s thighs or knees are bent, the Accused will tap them slightly on their thigh and tell them to keep their knees straight.[note: 46]

Pincha Pose

If a student is unable to attain the correct position and the Accused feels that they need to focus or engage a particular muscle or body part, he will use one hand to balance and hold the student’s leg. He will then use his other hand to slightly tap and ask the student to focus or engage that particular muscle or body part.

For example, if the toes are not straight, he will tap them on the toes. If the thigh muscles are not engaged properly, he will tap it slightly and ask the student to tighten or engage the thigh muscles.[note: 47]

Inner Thigh Stretch

If the pose is done without the aid and support of a wall, the student will have to widen and stretch their legs with their own hands. When adjusting a mediocre student, the Accused will push down their heel. Where a student is able to touch the ground with their toes, the Accused will push down their thighs and rotate it externally.[note: 48]

Centre Split Pose

To adjust this posture, the Accused will push down the student’s knees with both hands. If the student is “very advanced in this posture”, the Accused will go near the thigh, close to the knee, and do an external rotation.[note: 49]

Bow Pose

The Accused will stand behind the student, in the gap between the student’s knees, hold their ankles and lift it up towards the ceiling.[note: 50]



Defence’s submissions

26     The Defence case was premised upon the following broad assertions at trial and in closing submissions, with clarifications proffered subsequent to the court’s queries:

(a)     the Prosecution had failed to establish the actus reus of the offences as the Accused had not touched the complainants’ breasts, vaginas and buttocks as alleged;[note: 51]

(b)     the Accused had no intention of outraging the modesty of the complainants.[note: 52] He had only adjusted his students “in the context of yoga training”.[note: 53] Such adjustments were “a widely accepted and utilised practice” at Trust Yoga;[note: 54]

(c)     the complainants had not provided testimony that was unusually convincing for the following reasons –

(i)       Ms C’s police report stood “in stark contrast to the events captured by the CCTV footage.”[note: 55] Her evidence was “coached and rehearsed as she had consulted a lawyer” after filing the first police report;[note: 56]

(ii)       Ms V was unable to state the exact time period of the alleged offences. Her evidence did not have the ‘ring of truth’ as she continued attending the Accused’s lessons after the alleged offences;[note: 57]

(iii)       Ms Y was unable to “provide a narrower timeframe as to the alleged traumatic incidents” and continued attending private lessons with the Accused after the alleged offences. The police report was only made approximately four months after the offences;[note: 58] and

(iv)       Ms R returned for classes with the Accused after having been allegedly slapped on the buttocks by him. This was not logical or coherent. Her police report was made approximately 8 months after the alleged offence;[note: 59]

(d)     “common sense” would dictate that[note: 60] –

(i)       the complainants would switch instructors and stop attending classes with the Accused after he had outraged their modesty;

(ii)       the complainants would cease one-to-one interactions with the Accused; and

(iii)       complainants “of such offences” would remember or at least note down when exactly the offences had occurred;

(e)     greater weight should be given the evidence of the Defence witnesses as they had consistently maintained that the Accused was skilled in his adjustments.[note: 61]

The Issues for Determination

27     The key issues before this Court were:

(a)     whether the Accused had touched the complainants as alleged; and

(b)     whether he had done so with the intention of outraging their modesty.

28     As intention is purely an operation of the mind, it can only be proved by drawing inferences from the surrounding circumstances and the acts of the person in question: Sim Yew Thong v Ng Loy Nam Thomas and other appeals [2000] SGHC 186 at [18].

29     The parties concurred that if the Court found that the Accused had touched the complainants’ private parts as alleged, the finding that he had done so with the intention of outraging their modesty would necessarily follow since the Accused accepted that no legitimate adjustments would require him to touch his students’ private parts. [note: 62] It was also not the Defence’s case that the touches were accidental.[note: 63]

Legal Principles

The Law

30     In assessing the evidence, I was mindful that the uncorroborated evidence of a complainant may form the sole basis for a conviction only if, having regard to the complainant’s demeanour and the internal and external consistencies of the witness’ evidence, the testimony is “unusually convincing” such that it leaves the court satisfied that no reasonable doubt exists in favour of the accused: Public Prosecutor v GCK [2020] 1 SLR 486 at [87] – [88]; Haliffie bin Mamat v Public Prosecutor and other appeals [2016] 5 SLR 636 at [28]; AOF v Public Prosecutor [2012] 3 SLR 3 at [111] (“AOF”) and Public Prosecutor v Mohammed Liton Mohammed Syeed Malik [2008] 1 SLR(R) 601 [37].

31     In determining whether a complainant’s evidence is corroborated, a liberal approach is adopted. In this regard, the Court will treat the subsequent complain made by a complainant as corroboration provided that the statement implicating the offender was made at the first reasonable opportunity after the commission of the offence: AOF at [173] citing Public Prosecutor v Mardai [1950] MLJ 33.

Important Considerations in Cases of Sexual Violence

32     While the trial concerned allegations of “a similar character”[note: 64] by multiple women, I approached the evaluation of the evidence with deliberate and meticulous care to ensure that the claims of each complainant were scrutinised separately, on their own merits, without any undue influence from the broader context of related allegations. Consequently, my assessment focused solely on the evidence of each complaint and the credibility of the individual complainants.

33     The trial also presented an opportunity to explain how a delay in reporting a sexual offence ought to factor in the court’s assessment of the evidence. I accepted that there is no general rule requiring victims of sexual offences to report the offences immediately or in a timely fashion: Public Prosecutor v Yue Roger Jr [2018] SGHC 125 at [30], Haliffie bin Mamat v Public Prosecutor and other appeals [2016] 5 SLR 636 at [67].

34     I also accepted that a delayed report does not, in itself, automatically render an allegation of sexual assault, suspect. The dynamics of sexual offences often involve significant psychological and emotional complexities that can inhibit immediate reporting. Complainants may experience a range of overwhelming emotions, such as fear, shame or confusion, which can impact their ability to come forward promptly.

35     Judicial wisdom requires the court to approach these situations with an understanding of the complexities involved and assess the veracity of an allegation based on the entirety of the evidence presented, including explanations proffered by the complainant for the delay in reporting, rather than solely on the timing of the report.

36     Relatedly, I took the view that the absence of overt distress or outcry in the aftermath of a sexual assault does not automatically render the allegation dubious. Victims of sexual offences may not behave in a stereotypical way, and it is imperative that the court guards against assessing the evidence before it based on preconceived notions of how a victim should act or react, or as the Accused was wont to express in this case, what “common sense”[note: 65] dictates.

37     It is the duty of the court to assess the evidence before it holistically and ensure that justice is not compromised by misconceptions surrounding sexual offending.

38     Guided by these considerations, I made the following findings.

The Court’s Findings

The Charges Involving Ms C

39     The offences involving Ms C, were the subject matter of the 9th and 10th Charges. Having scrutinised the evidence, I was satisfied that Ms C was an unusually convincing witness who had provided cogent, textured and compelling testimony. The same could not be said of the Accused’s claims. I explain.

Internal consistency

40     I found Ms C’s evidence to be internally consistent for several reasons.

41     First, her vivid and granular description of the incident remained unshaken under cross-examination and rendered her evidence compelling. In respect of the 9th Charge, Ms C testified that she was in the Forward Bend Pose when the Accused had approached her on the left, said something that she was unable to hear, and proceeded to “smack [her] left butt cheek” with his hand before walking off and continuing with his teaching “like nothing had happened”. Ms C described the unsolicited touch as a “smack” because “there was some speed to it.”[note: 66]

42     She explained that she was “in shock” and “felt very anxious” but did not say anything as the Accused had resumed teaching and she “didn’t really know what to do” and “how to disrupt the class”.[note: 67]

43     The 10th Charge, the subject of the second incident, occurred sometime later when Ms C was in the Pincha Pose:[note: 68]

Q

So tell us what happened in the second incident.

A

[W]e were practising the pincha. I was kicking up against the wall. So we were practising for stability and balance. So Raj was moving around the class adjusting everyone. When he came to me, one hand was on my calf and the other hand was groping me from one butt cheek. And then he went in between to the middle area of my groin and crotch area – the vaginal area – before moving on to the other --- ending off at the other end of my butt. So from one butt to the middle to the other end of the butt. And his other hand was on my calf.

Q:

[W]hen you say “groping”, can you explain what that means?

A:

So he used his hand again to like a swiping motion from one side to the middle to the other side. So it was a like a joined smooth movement. Yah.

 

(emphasis added)



44     Second, Ms C was able to provide logical and rational explanations of the various case theories the Accused had advanced in his own defence at trial.

45     Chiefly, I did not find the veracity of Ms C’s evidence to be undermined by the fact that she neither vocalised her discomfort to the Accused or remained in the class for the remaining duration of the lesson, as she cogently explained her frame of mind at the time, and the amalgam of emotions she experienced:

 

Examination-in-Chief [note: 69]

Q:

And so what happened after that?

A:

So that was also shocking to me. So after that, I was very affected. So I was mostly kneeling on my mat looking at Raj but he, like with the first incident, just continued teaching as if nothing happened. I was --- I wasn’t really able to continue with class also, so I was on the mat a lot. And Raj also asked me why I wasn’t following along. And I shook my head and told him that I didn’t want to continue. But he was insisting that I go and do like the handstand portion.

Q:

And, Ms Lim, you said that you weren’t able to continue with the class. Why?

A:

I felt violated. It wasn’t something that I expected to happen during yoga class by a teacher. It just felt very---it just felt wrong especially because I go to yoga class to---it’s kind of like a physical and mental break for myself and I didn’t expect this to happen. So for this to happen in what I thought was a safe space just felt very shocking to me at that time and, yah, I---I wasn’t---I was just very confused and I didn’t know how to react

 

Cross-Examination [note: 70]

Q:

[I]n paragraph 33, you say in the middle of it, it says:

“I did not know what to do or whether I should scold him in front of the other students for molesting me.”

Why would you feel that way? Because if it was as you described it … why would you not say something?

A:

So, like I mentioned in paragraph 22, this is the first time I was assaulted in class. So, it was very shocking and unexpected to me. I don’t think there is a scenario where I prepared or prepared to be in this scenario. So, it felt very difficult for me to speak up, especially because I am in the class as a student and he has the authority in the room. And it also took some time for me to collect myself. Even after he left the room, I also did not immediately do something. I was still trying to collect myself.

 

(emphasis added)



46     To the intimation that she did not appear to be in shock since she continued with the class, Ms C explained that she was simply trying to process her feelings as the class progressed:[note: 71]

A:

I don’t feel very comfortable with what he’s insinuating. I was still trying to process my feelings and movement helps me process difficult feelings. So, this might not register as shock to you but I know what I felt at that time and the violation I felt shouldn’t be minimised just because I continued certain movements.

 

[…]

Q:

[M]y question is that: so, you are participating?

Court:

Let her answer.

 

Yes, Ms [C]?

A:

So, I was participating but there were number of times where I---I didn’t feel like I was really participating. A lot of the time, I was just on the mat. Yah. Especially because Raj also came up to me and he also asked me why I wasn’t following along. So, I also felt pressured to continue as opposed to just waiting for class to end and not participating at all.

 

(emphasis added)



47     I found nothing remiss in Ms C’s explanations; there was no merit in the insinuation that her passivity in class was incompatible with her allegations of sexual violation. To restate a point made earlier (supra at [36]), it is well established that the behaviour of a victim of sexual assault cannot always be expected to align with what might be perceived as a typical or expected response: GBR v Public Prosecutor [2018] 3 SLR 1048 at [20]. As our legal system recognises that each individual’s reaction to trauma is unique and personal, I did not regard the absence of immediate confrontation as a marker of the credibility or veracity of Ms C’s claims. That assessment had to undertaken holistically, within the broader context of the evidence available. The ensuing analysis demonstrates how this was achieved.

Corroboration and external consistency

48     Internal consistency aside, I found Ms C’s evidence of the incidents as a whole, fortified by other corroborative evidence.

49     First, Ms C’s testimony was consistent with the account she had furnished to the police in the online report lodged on 18 August 2020 (Tab B, ASOF). In this report, Ms C disclosed that she had been in the Forward Bend Pose when the Accused had “approached from [the] left, said something inaudible and then suddenly slapped [her] left butt cheek.”[note: 72] As with her testimony in court, Ms C stated that she “was very shocked and felt distressed and violated”.[note: 73] She also stated that she was “stunned and overwhelmed with shock, confusion and distress” as this “was the first time [she had] ever been molested and physically violated.”[note: 74]

50     In narrating the second incident of molest in the report, Ms C had stated that she was in the Pincha Pose when the Accused, with one of his hands supporting her calves, used his other hand “to slowly stroke [her] from [her] left buttock cheek, [her] crotch and groin (vaginal region), to [her] right butt cheek” in “a slow, deliberate and smooth stroke that lasted about 3 seconds.”[note: 75] In the report, Ms C had similarly recounted feeling “extremely shocked by [the] even more intrusive touching” and disclosed that she did “not fully” participate in the rest of the class.[note: 76]

51     I did not agree with the Defence’s assertion that Ms C’s detailed account of the incident in the second police report was “coached and rehearsed” merely because she had consulted a lawyer.[note: 77] Quite apart from the fact that Ms C was never confronted with this proposition, and was thus denied the opportunity to respond to it (falling foul of the rule in Browne v Dunn)[note: 78], the Defence’s submission blithely ignored Ms C’s unchallenged explanation that:

(a)     she had provided the same detailed account when she filed the first police report on 13 July 2020;[note: 79]

(b)     she did not know that the details she had furnished on 13July 2020 had not been included in any official documents until she showed her lawyer the first police report and “he asked [her] where’s the rest of it”;[note: 80]

(c)     she had filed the second police report because she was not satisfied with the first report[note: 81] and “wanted to make sure that the facts [she had] mentioned to the officer and the IO previously [had] been recorded accurately”;[note: 82] and

(d)     the lawyer’s advice was confined to asking her questions about the “background context, how many classes [she had] been to at Trust Yoga”, advising her to include “as much detail as [she could] remember about the two incidents [and] what happened after that” as well as enquiring if she was “okay going to make a police report on [her] own”.[note: 83]

52     I was satisfied that Ms C’s account in the second police report was not coached. It was clear to me that she had, on the advice of her lawyer, simply sought to recount the incidents in as much detail as possible and have her experience recorded in the manner that she “wanted it written.”[note: 84]

53     Second, Ms C’s account of the two incidents also accorded with her Twitter posts on 31 July 2020 (Tab R, ASOF), in which she disclosed the two incidents of molest in broad terms. I reproduce the post for ease of reference:[note: 85]

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54     On the whole, I found no inconsistencies between Ms C’s narration of the incidents of molest in the second police report, her Twitter posts and her evidence in court.

55     Third, I agreed with the Prosecution that CCTV footage, admitted in evidence as Exhibit P1, corroborated aspects of Ms C’s testimony. Pertinently, the footage captured the Accused’s contact with Ms C’s buttocks during the class. Still images of the footage at timestamp 10:01, identified by Ms C as the time of the first incident[note: 86], did indeed show the Accused’s hand on her left butt cheek:

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56     Given the angle and position of the Accused’s hand vis-à-vis Ms C’s body and posture, I did not agree with the Defence’s assertion that the above images showed the Accused’s hand in contact with Ms C’s thigh. Further undermining the veracity of the latter claim, was the belatedness with which it arose; a point I address in greater detail at [74] below.

57     I also did not find Ms C’s inability to pinpoint in the CCTV footage, the precise moment at which the transgression upon her vagina had occurred, to undermine her evidence in respect of the 10th Charge. It was important to have regard to her explanation as to why this was so:

 

Examination-In-Chief [note: 87]

A:

[I]t happened when I was kicking up against the wall. But that happened a few times during the CCTV footage and I tried watching really closely but I can’t really point out which exact timing it was.

 

[…]

Q:

[Y]ou had identified three points in time when you were doing the pincha pose. Earlier, you also said that you could not identify the specific timestamp where the second incident happened. Is that correct?

A:

Yah, I can’t really see clearly from the footage.

 

Cross-Examination [note: 88]

A:

I can see my legs but I---because we kicked up quite a few times and because he adjusted me a few times, I hesitate to point out in the footage at which exact point because I cannot see clearly.

 

Re-Examination [note: 89]

A:

[A]lthough there is CCTV footage we don’t have a super close-up view, I could still point out the time frames where it might have happened although it might not be as exact as preferred.

 

(emphasis added)



58     Having viewed the CCTV footage multiple times, I found myself in agreement with Ms C’s observation that the footage was not clear enough; indeed, the angle and zoomed-out perspective that the CCTV footage provided, coupled with Ms C’s inverted posture in the Pincha Pose (unlike the Forward Bend Pose at timestamp 10:01), did not facilitate the precise identification exercise required of her, since her legs and buttocks were not fully and clearly visible. I thus found no merit in the insinuation that Ms C’s credibility was undermined “because she could not pinpoint the exact moment when the incident occurred”.[note: 90] If anything, I found Ms C’s credibility bolstered by her candour and the lack of embellishment in her testimony.

59     I also found untenable, the Defence’s submission that aspects of the second police report did not align with the CCTV footage. [note: 91] Ms C gave reasonable explanations in response to the various doubts the Defence had attempted to sow in her testimony:

(a)     to the assertion that the CCTV footage did not capture the shock, distress and feeling of violation she had reported experiencing, Ms C testified: [note: 92]

A:

[I] don’t think the CCTV footage is clear enough for you to focus on my expression. And I don’t know what kind of emotional expression you would qualify as shocked, distress and violated because though that’s what I was feeling, you can’t just say that I don’t look like it.



(b)     to the contention that the CCTV footage did not show her jerking out of pose, she explained that the references to the same in her police statement were simply meant to reflect the fact that:

(i)       she had “got out of the forward fold” position she was in[note: 93] and “looked up”[note: 94]; and

(ii)       she “felt very wobbly” and “felt very unstable” even if it did not clearly show on the footage.[note: 95]

60     Fourth, there was ample corroboration of other material aspects of Ms C’s account of the incidents. For instance, Ms C’s assertion that she had not fully participated in the class after the second incident and had noticed Mr Arvind looking into the classroom through the glass door from time to time,[note: 96] was corroborated by Mr Arvind who testified that he had indeed walked past the studio to “peep from outside” after observing, from the CCTV screen playing in the sales room, “that [Ms C] was not participating as how she used” and “was taking way too more (sic) breaks”.[note: 97]

61     Mr Arvind’s inability to identify portions of the CCTV footage where Ms C was not actively participating can be explained by the fact that Exhibit P1 was a sped-up version that compressed a full one-hour class into a recording of only 18 minutes.[note: 98] This was vastly different to the real time CCTV video Mr Arvind had watched in the sales room on 11 July 2020,[note: 99] from which he was able to discern Ms C’s patent discomfort.

62     Pertinently, Ms C’s evidence as to her passivity in the aftermath of the second assault was corroborated by the Accused himself, who testified that he had questioned Ms C’s non-participation in the latter part of the class after several Pincha Poses had been performed:[note: 100]

Q:

15.01. Yes?

A:

You would have seen that when I went near [Ms C], I was telling her something … There was this one time that she was sitting in the class. And I went near her, and I asked her, “Why are you sitting down?” And she told me that she was feeling tired … You can see it on the CCTV that after talking to her for a while, I even gestured with my hand to continue. And after which, she continued with the last posture … I surely and remember it very firmly that I did speak to her and ask her. I asked her as to “why are you sitting down in the class”, and she replied by saying that she is tired.

Q:

And are you saying that this is the time when you did that?

A:

Watching this footage, I think that this is the time that I spoke to her.

 

(emphasis added)



63     The Accused’s assertion to this effect was also found in the statement he gave to the police on 15 July 2020 (admitted as Exhibit P5, without any challenge to voluntariness), wherein he stated:

8

During the classes, I remembered that I had asked her why she was not doing one of the posture and she told tired. I then told her to do the posture …

 

(emphasis added)



64     The Accused’s evidence cohered with Ms C’s account on three levels:

(a)     it confirmed Ms C’s and Mr Arvind’s testimony that she had, at one juncture, sat on the mat without participating in the class;

(b)     it confirmed Ms C’s testimony that this overt reticence to participate had occurred after she had assumed several Pincha Poses; and

(c)     it confirmed Ms C’s evidence that the Accused had “asked [her] why [she] wasn’t following along” and thereafter insisted that she perform the posture.[note: 101] While the Accused subsequently claimed that Ms C had attributed her non-participation in class to tiredness, Ms C’s testimony that she had only told the Accused that she did not want to continue,[note: 102] was unchallenged when she was on the stand. This rendered the Accused’s assertion vis-à-vis the reason proffered by Ms C for her non-participation in class, dubious.

65     In addition to the above, Ms C’s evidence as a whole, was also materially corroborated by the disclosures she made to various individuals following the class. These included near immediate disclosures to:

(a)     her friend, Ms J, in a series of text messages sent at 5.32 p.m. on 11 July 2020, as soon as the class ended.[note: 103] In these messages, Ms C disclosed that the Accused had “smacked the side of [her] butt when [she] was in forward fold” and “groped [her] ass” when “he was supposed to assist me in pincha”.[note: 104] I found nothing untoward about Ms C’s omission to mention that the Accused had groped her vagina as I accepted her explanation that she did not go into much detail because she was not “functioning well at that point”, was “tearing”, “felt very anxious” and had “a lot of thoughts going through [her] head about how [to] proceed”.[note: 105] Ms C’s testimony as to her state of mind then, resonated with her contemporaneous messages in which she stated that she felt like crying, was “trying to breathe”, was “stressed” and was “trying to calm down”;[note: 106]

(b)     her mother at 6.24 p.m. on 11 July 2020, less than an hour after the class, informing her that the yoga teacher had “molested” her.[note: 107] Its brevity notwithstanding, the message captured the nub of Ms C’s allegation even as she was trying to collect her thoughts;[note: 108] and

(c)     Mr Arvind that she had been molested “on two separate occasions”, disclosing that “one was a smack on the butt cheeks” and that she was also inappropriately touched when she was in an inversion pose.[note: 109] This aspect of Mr Arvind’s testimony was not challenged by the Defence.

66     The evidence also showed that Ms C disclosed the thrust of her allegations to Ms Shiou An and Mr Manoj at the meeting she attended at Trust Yoga the following day (on 12 July 2020) where she revealed that she had been molested twice; first, when the Accused had “smack (sic) [her] butt” when she was in the Forward Bend Pose and again, when he had groped her during the Pincha Pose.[note: 110]

67     On the whole, I found Ms C’s narration of various material aspects of the incident to no less than three others, congruent with her testimony in Court. The contemporaneity of these disclosures, served to bolster her credibility.

68     Finally, Ms C’s palpable distress in the aftermath of the incident, as witnessed by Mr Arvind, was also consistent with her claims of molestation. Mr Arvind’s evidence that Ms C was in “crying uncontrollably” and “in a state of shock”[note: 111] as she conveyed her experience to him, was unchallenged by the Defence. Ms C’s demeanour corroborated her account, though I must stress that the absence of overt distress does not automatically render an allegation of molest suspect (supra at [36]).

69     For the foregoing reasons, I found Ms C’s evidence externally consistent with the evidence before the court.

Deficiencies in the Defence’s case

70     The Defence’s case stood in stark contrast to Ms C’s cogent evidence. The Accused’s economy with the truth came to the fore when he inadvertently confessed to touching Ms C’s buttocks in the following exchange with Defence Counsel when asked to explain Exhibits P7 and P8:[note: 112]

A

[I]n the picture you can clearly see that my hand is at thebottom part of the buttocks, my hands are sliding from the right side of the hips to thebottom of the buttocks … But my hand came from the side and it tapped her on thebottom of her buttocks.

 

(emphasis added)



71     To correct this Freudian slip, the Accused resorted to casting aspersions on the interpreter’s translation, asserting that he had said “thigh” and not “buttocks”. This accusation was roundly and vehemently rejected by the interpreter who explained that the Accused had not used the word “thigh” nor the Hindi equivalent of the word (“jhangh”) in the response in question.[note: 113] I had no reason to doubt the accuracy of the interpreter’s translation and her explanation satisfied me that the Accused had indeed used the word “buttocks”.

72     This was all the more so since the Accused’s contrary claim was illogical as it would mean that he had, but for the purported mistranslation, said that Exhibits P7 and P8 showed him touching the “bottom part of the thighs”, when the screenshots patently did not show this. This purported statement would also have been contrary to the Accused’s own earlier claims that Exhibits P7 and P8 showed his hand on Ms C’s “upper thigh”[note: 114] (as opposed to the bottom part of the thighs). It thus appeared to me that the Accused had indeed admitted to touching the “bottom part of the buttocks” three times and his claim of mistranslation was a desperate attempt to recant an otherwise damning admission. This undermined his credibility.

73     Even if I paid little to no heed to this parapraxis, there were other material deficiencies in the Accused’s evidence which severely undermined the cogency of the Defence’s case in relation to Ms C’s allegations. The most salient of these were:

(a)     the inconsistent positions the Accused had taken in relation to where he had touched Ms C in respect of the 9th Charge; and

(b)     the Defence’s failure to put several key aspects of its overarching case to Ms C (e.g., supra at [51] and [64(c)]), despite the court’s express caution and entreaty to do so.[note: 115]

74     In this connection, I could not ignore the fact that the Accused’s contention that he had merely touched Ms C’s thigh to adjust her Forward Bend Pose only arose in his examination-in-chief and was thus clearly an afterthought. The Accused’s explanation, viz. that he had been waiting for his turn to provide his version,[note: 116] was strained.

75     That the Accused’s statements to the police made no mention of the fact that he had touched Ms C’s thigh, lent credence to the above finding. In fact, I would highlight that in his statement recorded on 6 August 2020 (admitted as Exhibit P6, without any challenge to voluntariness) the Accused expressly took a contrary position on where he had touched Ms C during the Forward Bend Pose, claiming that he had tapped the “left side of the hip near to her butt once”.[note: 117]

76     The Accused could not provide a coherent explanation for this material discrepancy between Exhibit P6 and his testimony in court. Despite earlier confirming that he was able to give an accurate account of what had happened during the recording of Exhibit P6,[note: 118] and agreeing that the statement did in fact accurately reflect what he had told the police in relation to the 9th Charge,[note: 119] the Accused subsequently sought to renege on these admissions by claiming that he had given a demonstration to the Investigating Officer only to be told by the latter that he had demonstrated touching Ms C on the upper thigh and not the hips.[note: 120] He claimed to have been “shocked” when he looked at Exhibit P6 because the demonstration he had given was “totally different” to what had been written in paragraph 11.[note: 121]

77     The Accused’s about-turn was problematic given his concession that (i) he knew the difference between the thigh and the left side of the hip, and (ii) could have included the word ‘thigh’ in Exhibit P6 if he had wanted to.[note: 122] Unsurprisingly, the Accused resorted to claiming that he had been denied the opportunity to make changes to Exhibit P6 as the Investigating Officer had rushed him when he had been attempting to read through the statement.[note: 123]

78     These allegations were squarely rejected by the Investigating Officer. Ultimately, the Defence’s failure to challenge the Investigating Officer’s evidence that (i) the Accused had not demonstrated any yoga postures during the recording of Exhibit P6, (ii) he had not informed the Accused that he had demonstrated touching Ms C’s thigh, and (iii) the Accused had been given the time and opportunity to make amendments to the statement, laid rest to the Defence’s claims to the contrary.[note: 124]

79     All considered, I found myself unable to place any weight on the Accused’s strained and shifting explanations for the material internal inconsistencies in his case. The Accused had shown himself to be a witness unworthy of credit and this cast doubt on the cogency of the Defence’s case in relation to the allegations involving Ms C as a whole.

The evidence of the Accused’s other students did not assist the Defence

80     I saw nothing in the evidence of the Defence witnesses that would assist the Accused. Ms Lim Nam Leng conceded that she was focused on her yoga practice during the class and was not paying attention to what Ms C had been doing for the duration of the class.[note: 125] The remaining Defence witnesses were not present in the class.

The conviction on the 9th and 10th charges

81     Drawing the strands together, I was satisfied beyond a reasonable doubt that the Accused had touched Ms C as alleged. The finding that he had done so with the intention of outraging her modesty necessarily followed since the Accused accepted that no legitimate adjustments would require him to touch his students’ private parts, and it was also not the Defence’s case that the touches were accidental (supra at [29]). I thus convicted him of the 9th and 10th Charges.

The Charges Involving Ms R and Ms V

82     While I had assessed the charges involving Ms R and Ms V separately, I deal with them together in these grounds to avoid repetition since the Accused’s defence vis-à-vis these allegations was the same. It bears reiterating that I was careful to ensure that my findings in relation to Ms C, did not taint my assessment of the remaining allegations involving the other complainants.

Ms R’s evidence

83     The 1st Charge involving Ms R, averred that the Accused had slapped her buttock during a class in November 2019.[note: 126] I found that Ms R had provided a textured account of the incident that was internally and externally consistent.

84     In court, Ms R testified with sufficient certainty that she had looked through her attendance records at Trust Yoga[note: 127] and determined, by a “process of elimination”, that the incident in question had occurred on 7 November 2019 as she distinctly recalled it having taken place during a non-peak class that ended around lunchtime at midday. She was also certain that it had not occurred during one of her first few sessions at Trust Yoga and that it was not a hot yoga class.[note: 128]

85     In my view, the fact that Ms R’s online police report (lodged on 5 August 2020 and admitted as Tab C, ASOF) stated that the incident had occurred on 16 November 2019, was not of any material consequence as I accepted her explanation that she had merely provided “an estimate based on what [she] could gather at that point in time” and “just put a middle date in November” as she believed she would not have been able to “advance with the online form” without completing the field that required particulars of the ‘Date/Time of Incident’.[note: 129]

86     In the course of her testimony, Ms R recalled with clarity, how the Accused had approached her from behind and smacked the left side of her buttocks with his hand after she had “fully recovered” from the Forward Bend Pose, which she explained to mean that she had “stood up” and was in a stable standing position.[note: 130] He had walked away nonchalantly thereafter. This was consistent with the accounts in both Ms R’s police report and her post on Facebook, penned on 26 August 2020 (Tab T-1, ASOF). Ms R asserted, unchallenged, that the touch was “not necessary, given the context of the situation”,[note: 131] since she had already completed the pose and thus did not require any adjustment.

87     In court, Ms R recounted continuing with the rest of the class because it was close to ending, even though she felt “very disoriented and confused”.[note: 132] Though she had contemplated raising the incident after she had left the class, she explained that she ultimately decided against it for the following reasons:

 

Examination-in-Chief [note: 133]

Q

What was going through your mind at that time?

A

First of all, it was a very disorienting period of time. I was still struggling with coming to terms with what happened actually. So, processing what had happened and eventually I---yah, looking back, it was definitely a phase of self-betrayal because I had convinced myself that there was no need to create so much trouble for this kind of thing and probably no one would believe me because, well, there’s no physical evidence.

 

Cross-Examination [note: 134]

A

I stayed calm throughout the whole thing and I didn’t report until August 2020. And I didn’t confront him either, in public or in private.

Q

But you did say that you’re very uncomfortable?

A

Yes.

Q

And yet you chose to keep your composure?

A

Yes. Because we are conditioned from young not to cause a scene. And I think that applies to me too … Meaning from young, a lot of us would be influenced, told, instructed to not make a scene. And that sticks which on hindsight should not have been my course of action.

 

(emphasis added)



88     The Defence argued that Ms R’s delayed report of the assault and continued attendance at subsequent classes taught by the Accused, rendered her account unbelievable.[note: 135] The fact that Ms R did not report the incident to anyone in authority till nine months later, on 5 August 2020, and had attended some classes taught by the Accused in the interim, gave me some pause. However, as highlighted above at [33] to [37], I was mindful that the court had to guard against assessing the evidence before it based on preconceived notions of how a victim should act or react. Instead, it was incumbent on the court to assess the evidence holistically.

89     In the present case, this necessarily entailed consideration of the explanations proffered by Ms R for her conduct after the offences. In this vein, I had regard to a series of posts Ms R made on Instagram on 22 August 2020 in which she explained what had happened to her and why she had reacted in the manner that she did.[note: 136] These posts were admitted in evidence as Tab X of the ASOF.

90     For ease of reference, I summarise salient aspects of Ms R’s testimony elaborating upon her Instagram posts in which she had detailed her internal thought process[note: 137] subsequent to the assault:

Instagram Posts [note: 138]

(reproduced in verbatim and uncorrected)

Ms R’s explanation

(emphasis added)

1) Anger Shock! Basically we instinctively know that this is wrong

“There is a difference between being touched accidentally and you know, just someone who move past and accidentally brushed their hand on your bum versus smacking it. So, you can call it the gut feeling---in the moment it’s very obvious that there’s something wrong here.”[note: 139]

2) But then doubt sets in. When that psychopath walks away nonchalantly as if its most normal thing to ever happen. So the internal conversation becomes: Am I over thinking? He’s an instructor so he should know what he’s doing right? Could it be an accident? (Not that some of us are new to yoga and unfamiliar with what proper adjustments look like)

“Because when faced with an authority figure in that context, someone who is---is in [the] position of a teacher, an instructor, even a guru or master … the question becomes, when I internally put this person on a pedestal … the assumption is that they know what they’re doing … [it was] an act of self-betrayal when I agreed with that assumption then I doubt my own experience.”[note: 140]

“[W]hole cloud of self-doubt that started to set in … so making up reasons in my mind so that I can hold onto that belief that this person is not a malicious predator hiding in plain sight all along.”[note: 141]

3) Even after repeated assaults, victims can still feel disoriented and confused because he otherwise seems very helpful and caring, almost eager sometimes to help you with your progress. So you think: He can’t possibly be out to hurt me right?

“[W]e want to hang on to that reality that he is a good teacher, he is there to help … the whole reality that he could be of malicious intent all along, out to violate me from the start, that’s too much of a drastic transition to grapple with. So … I just settle with “can’t be it, right?”[note: 142]

4) Plus he is popular and everyone seems to like him so maybe I’m the only one that’s experiencing this?

“[T]his is part of that group of self-doubt that sets in … it’s disorienting because is it even real because everyone else is reacting in a very loving way sometimes, you know, some of the perhaps more experienced students … I based off of their reaction and invalidated my own.”[note: 143]



91     The sum of Ms R’s evidence was that she knew that the Accused’s act was not an accident,[note: 144] but had, despite her initial shock and anger, “rationalised” it as an “accidental flick of the wrist” to keep her composure and go on with life,[note: 145] invalidating her own experience based on, amongst other things, the reactions of the Accused’s more experienced students who appeared to have a very good relationship with him.[note: 146] This was, as she termed it, an act of self-betrayal; “justifications” that she came up with to hold onto the reality that she was just a normal student with a normal instructor, going through life.[note: 147]

92     Ms R explained that she awoke from “this stupor” only when she read about Ms C’s experience and contacted her to relay her own encounter with the Accused (Tab S, ASOF):[note: 148]

Q

Why did you contact her?

A

Because she was the person who woke me up from this --- almost this stupor, basically and I wanted to first of all, thank her for---for doing what---what she did. And also … I was also not very sure at that time if I should lodge a police report, if this instance was too small of a thing … so I wanted to check in with her on that also. Yah.

 

(emphasis added)



93     She explained that Ms C corrected her initial misimpression that police reports were only intended for more significant offences like robbery and aggravated sexual offences like rape.[note: 149] Ms C’s social media post gave Ms R clarity that her “fog of self-doubt”[note: 150] and justifications were “not aligned with the truth”[note: 151] and had served as an excuse “to not confront the gravity of the situation”[note: 152], with ramifications for others apart from herself. This insight “blew the top off” the assault she had “suppressed”,[note: 153] jolting her into action and prompting her to lodge a police report hours later:[note: 154]

 

Cross-Examination [note: 155]

Q

And what made this perception that you had about making police reports change in August?

A

So, what changed in August was not taking action at all had dire consequences for other people, and its not just about myself. Maybe I can give second chance, maybe I can shelve it aside, you know, maybe I can move on with my life, but there are ripple effects, some of which I may never see or hear about, but they are still there.

 

Questions from the Court [note: 156]

Q

For the Court’s benefit, can you shed some light on what you mean when you say, “not taking action at all had dire consequences for other people, and not just for myself?”

A

So, what I meant was, by this inaction, other people, other students would be exposed to this same instructor, and potentially also be assaulted in the same way. Yah.

 

(emphasis added)



94     Ms R was so impacted by this insight that she felt it necessary to publicly acknowledge what had happened to her (on Instagram and Facebook) and ensure that her story “would not be a nameless, faceless kind of thing”.[note: 157]

95     Ms R’s initial decision to suppress the assault,[note: 158] push the incident aside,[note: 159] give the Accused the benefit of the doubt and a “second chance” to see “whether he would act the same way again”[note: 160], provides the context in which her subsequent post-incident attendance at some of the Accused’s classes, must be understood.

96     In any event, I am mindful that of the 57 classes Ms R had attended since 7 November 2019, only ten lessons were taught by the Accused. This accounted for less than one-fifth of her remaining classes at Trust Yoga and was not inconsistent with her evidence that she “generally avoided”[note: 161] taking the Accused’s classes except where her work obligations and dance classes, coupled with the Accused’s domination of the studio’s class schedule, made it untenable to do so.[note: 162]

97     Objectively, ten classes over a nine-month period in a studio where the Accused typically taught four out of six classes daily,[note: 163] could hardly be said to be a regular occurrence. If anything, Ms R’s subsequent attendance at the classes taught by the Accused would be best characterised as ad hoc and infrequent. This accorded with her testimony that she most of her classes were not with him.[note: 164]

98     Considering the evidence in its entirety, I found that Ms R had given reasonable explanations to any inherent improbabilities in her evidence that might, at first blush, have been said to arise from her seemingly counter-intuitive behaviour after the incident. Given the internal and external consistency in Ms R’s evidence, I found her to be an unusually convincing witness.

Ms V’s evidence

99     Ms V’s allegations that the Accused had slapped her buttocks and touched her vagina, formed the basis for the 7th and 8th Charges respectively.[note: 165] I likewise found her evidence clear and compelling.

100    I did not find Ms V’s inability to state the precise dates on which the incidents had occurred, to be fatal since she was able to provide a timeframe for the same. Taking reference from her class attendance records at Trust Yoga (Tab I, ASOF) Ms V testified that the intrusions had occurred on two occasions during classes at the Telok Ayer branch sometime after 30 September 2019 but before 11 March 2020.[note: 166]

101    It was Ms V’s evidence that the first incident had occurred when she was in the Forward Bend Pose. The Accused had approached her from behind and tried to push her further into the pose, as being new to yoga, she was very stiff and unable to bend forward as deeply as he had wanted her to. The Accused then proceeded to “smack” her butt cheek firmly with his hand before saying something “along the lines of [her] not trying hard enough to do that pose.” He then walked away and continued with the class.[note: 167]

102    Ms V explained that she “was very confused” by the Accused’s act which she knew was an “intentional action”.[note: 168] However, as she saw him doing the same thing to other female students “and nobody reacted [and] nobody said anything”, she did not want to “make a big deal out of this incident”, “thought that that was probably his style of teaching ” and decided not to “make a mountain out of a molehill”.[note: 169] Pertinently, I pause to observe that Ms V’s evidence that the Accused had slapped the buttocks of his other students, was unchallenged by the Defence when she was on the stand.[note: 170]

103    The court heard that the second incident occurred on another occasion when Ms V was performing a variation of the Inner Thigh Stretch (depicted at [17]), whilst lying on the floor with her legs “in the sky” and without the aid and support of a wall. Her hands were on her thighs, trying to stretch wider as she was very stiff. The Accused approached her from the front and began adjusting her by putting his hands on her inner thighs to help her achieve a wider stretch. Before leaving, he touched her “in one sweeping motion”[note: 171] “from the centre of [her] butt to [her] vagina”, using his hand.[note: 172] Ms V recalled feeling shocked and uncomfortable. She adjusted her position and saw the Accused walking away.

104    Ms V shared that she had not acted in the aftermath of the second incident because she was “too shocked”, “couldn’t process what had happened” and “refused to believe” that she had been touched inappropriately by a trained instructor.[note: 173] Ms V’s reticence to believe that the Accused had taken advantage of her, was also influenced by the fact that she had observed the “friendly relationship” the Accused had with his regular and advanced students, leading her to surmise that “he could be trusted as an instructor”.[note: 174]

105    Ms V further explained that she had returned for subsequent yoga classes because she “chose not to think” “too deeply” about what had transpired, reiterating that she “just did not want to believe that [she] had been touched inappropriately by an instructor.”[note: 175] Ms V resolutely rejected the Defence’s suggestion that she had consciously followed the Accused to Trust Yoga’s Tampines branch when it opened, explaining that the new location was closer to her home in Simei[note: 176] and that she not chosen her classes based on the instructor, but based on the class times, her preference for morning classes and her own availability based on her work schedule at the time. [note: 177]

106    I found Ms V’s testimony vis-à-vis the two incursions to her body and her ensuing thought process, consistent with the account in her police report (lodged on 29 August 2020 and admitted in evidence as Tab E, ASOF) in which she stated (reproduced in verbatim and uncorrected):

During the classes with him, he would occasionally give hard smacks on my butt cheeks when I was doing inversion[note: 178]poses. This happened several times on different occasions. Being a newcomer, I was very confused but repressed it and told myself not to overthink. I would even observed him doing it to other female students but nobody spoke up. There was even one occasion where I was doing a pose that involve me lying on the floor with my legs up in a V to stretch my inner thighs. He came over and molested me by spreading my thighs wider and then took the liberty to touch my crotch area by swiping his hand gently through my crotch. At that point of time, I felt very uncomfortable and was very confused. However, as being a new student, I once again, repressed the thoughts that I was being taken advantage of as I trusted him as a teacher and convinced myself that it was just an accident.

(emphasis added)



107    In the course of her testimony, Ms V shed critical light on how and why she decided to lodge the aforementioned police report, explaining that she only reflected upon her own experiences with the Accused when she learnt that Trust Yoga had removed the Accused from its class schedule and, upon undertaking a Google search, read accounts online of other girls who had been through a similar situation.[note: 179]

108    In this vein, the evidence showed that Ms V contacted Judy on 25 August 2020 on Facebook after seeing the latter’s Google review on Trust Yoga about a friend who had been molested by the Accused, as she wanted to share her own experience and find out what to do about the situation.[note: 180] This was borne-out by messages between Ms V and Judy, admitted in evidence as Tab U, ASOF:[note: 181]

\"\"

109    In court, Ms V testified that she had contemplated lodging a police report as the accounts of other girls who had been through a similar situation, “confirmed [her] worst fears” that the two incidents “were not mere accidents [as she had] wanted to believe initially”. Ms V gave voice to this realisation in the following manner, her distress patent to the court:[note: 182]

A

[A]fter reading all the stories, it was very upsetting. It was through Google that I found accounts of, like, other girls as well who had been through the similar situation and that led me to think about and reflect upon the incidents that happened to me, and---and---and confirmed my worst fears.

Court:

Take your time and you can continue with your - answer after you’ve composed yourself. Do you need to stop for a while---

Witness:

I’m okay.

Court:

---Ms [V]?

Witness:

I can continue.

[…]

A:

Led me to confirm that I was touched inappropriately in those incidents.

 

[…]

 

At that time, I---I really think back about those two incidents that I mentioned earlier, yah, and---and---and---decided that those---those two incidents were---were not mere accidents that I wanted to believe initially, and---and decided to reach out to someone so as to know the process on how to go ahead and lodge the police report.

[…]

Q:

So, what changed from initially wanted to not believe it to eventually wanting to bring justice for yourself and other people?

A:

So, like I said earlier, after reading the accounts of the other girls and reflecting [on] what had happened to me, I felt that the incidents that happened to me were not accidental.

 

(emphasis added)



110    Ms V explained that she had contacted Ms C to find out about “the police lodging process that she [had] been through”, specifically, “what she had done, how she had done it and what she experienced.”[note: 183] The “validation” she received from other girls dispelled her initial fears about what the reporting process entailed,[note: 184] and Ms V proceeded to lodge the police report as she wanted “justice” and was determined “to do something so as to protect other people as well”.[note: 185]

111    It bears repeating that the effect of any delay in reporting always falls to be assessed on the specific facts of each individual case. In the present case, the fact that Ms V did not complain in a timely manner and continued attending classes with the Accused, did not rob her of credibility. In the final analysis, I accepted as cogent, her explanations for this initial passivity.

112    Also lending credence to Ms V’s account, was the fact that her narration of the legitimate adjustments the Accused had undertaken just prior to molesting her (supra at [101] and [103]), in fact accorded with the Accused’s own evidence as to what he would have done to correct the poses she was in (supra at [25]).[note: 186] In my view, the material parallels between the two accounts demonstrated that Ms V’s recollection and narration of the circumstances leading to the acts of molest, was both accurate and truthful and could not be impugned.

113    Considering her evidence holistically, I found Ms V to be an unusually convincing witness.

The material deficiency in the Defence’s case

114    Again, the Defence’s case stood in stark contrast to the compelling evidence provided by both Ms V and Ms R. It must be remembered that the Accused’s defence to Ms V’s and Ms R’s allegations, was a bare denial, viz. that he had not touched them on their private parts as alleged, either intentionally or accidentally (supra at [23]).

115    Curiously however, the Defence’s alternative case at trial, that the Accused had merely been adjusting Ms V and Ms R if he had indeed touched their private parts,[note: 187] was glaringly inconsistent with the broader defence that no yoga adjustments would ever necessitate the Accused touching a student’s private parts. This contradictory and competing claim in the Defence’s case, was of such materiality to the central question confronting this court, that it the necessarily rendered the Accused’s case devoid of credibility.

116    For completeness, I pause to highlight that the evidence of the Defence witnesses did not assist the Accused as it was not the Defence’s case that they were present in the class with Ms R or Ms V at the material time, and thus privy to what had transpired.

The conviction on the 1st, 7th and 8th charges

117    In the final analysis, having found Ms V and Ms R to be unusually convincing witnesses, I accepted their evidence that they had been touched as alleged. I thus convicted the Accused on the 1st, 7th and 8th Charges; satisfied that these has been proven beyond a reasonable doubt.

118    My decision was fortified by the fact that neither Ms R nor Ms V had any reason to falsely implicate the Accused, a fact which he himself accepted.[note: 188] There was also no allegation of collusion. These findings applied equally to Ms C.

The Charges Involving Ms Y

119    Ms Y’s allegations that the Accused had touched her breasts and vagina on three separate occasions, gave rise to the 4th, 5th and 6th Charges.[note: 189] I had, at the close of trial, acquitted the Accused of these charges. Though the present appeal is only against the Accused’s conviction and sentence, I nonetheless, for completeness, briefly explain the premise for the acquittal.

Ms Y’s evidence

120    I reproduce salient parts of Ms Y’s testimony as summarised by the Prosecution in its closing submissions:[note: 190]

[92] For the first incident, [Ms Y] was practising a [Centre Split Pose] when the Accused used one hand to push the inside of her knee downwards. He placed his other hand on her vagina for the duration of the posture which [Ms Y] estimated to be around 15 seconds. [Ms Y] described feeling pressure at her vagina when the Accused pressed his hand down at the centre of her vagina. When this was happening, [Ms Y] felt a mix of confusion and shock. She felt confused as to why [the Accused’s] hand was at her vagina because it did not help her open her hips up but could not bring herself to say anything because she was stunned and her mind was a blank. The Accused carried on with class and did not address what happened. After she left class, she stated that she was hoping that the receptionists would ask her if something had happened as she assumed that the CCTV may have been livestreamed onto their monitors. The fact that they did not made her doubt herself.

[93] [Ms Y] testified that she felt shocked after the incident, and although she continued going for classes with the Accused, she was on the lookout for whether he would sexually assault her in the same way by touching her vagina.

[94] For the second incident, [Ms Y] stated that she was practicing the [Bow Pose]. She was holding her ankles with each of her hands in this position. The Accused was standing over and behind her with one hand pulling her ankles upwards and his other hand on her breast in an upward brushing motion across her nipples for about 15 seconds. The Accused against did not address what he did. This time, [Ms Y] felt that she had essentially allowed the Accused to molest her by going back for his classes. She thus convinced herself that given his popularity, he must not have molested her.

[95] The third incident occurred during another private class with the Accused. [Ms Y] was doing a variation of the Bow Pose, [with] the Accused standing behind her. [Instead] of holding her own ankles, [Ms Y] grabbed onto his legs. [Ms Y] mentioned that during this pose, her face was directly under the Accused’s penis and she felt uncomfortable. The Accused placed each of his hands on each of her breasts in a cupping motion. He then pulled her breasts upwards towards him. He did this for around 15 seconds. [Ms Y] froze when this happened to her. She could not explain why she froze, but described feeling lost for words and felt like she could not do anything.



121    Amongst the correspondence admitted in evidence, were the following messages Ms Y had sent to Ms Shiou An on 3 August 2020 (Exhibit D2):

\"\"

122    On the same day, she sent the following messages to the Accused (Tab V, ASOF):

\"\"

123    It is pertinent to note, for context, that the above messages were exchanged in the midst of multiple allegations of sexual assault made against the Accused in the online public sphere, which Ms Y was aware of.

The acquittal on the 4th, 5th and 6th charges

124    It must be remembered that the function of the trial process is to ascertain whether guilt is proved beyond a reasonable doubt. In this connection, the presumption of innocence mandates that any reasonable doubt must weigh in favour of the Defence.

125    In the present case, while Ms Y presented as an earnest witness, the question of whether a complainant is unusually convincing must be premised upon the reliability of her evidence. In the absence of other evidence, I found Ms Y’s continued active, unsolicited and vocal support of the Accused in the wake of multiple allegations of sexual assault surfacing, incongruent with her allegations of molest. This gave rise to reservations about the reliability of her narrative, notwithstanding her explanations in Court, and ultimately constrained a finding that her testimony was unusually convincing. In my judgment, a conviction on the 4th, 5th and 6th Charges would have been unsafe. I thus acquitted the Accused of these charges.

126    I must emphasise that this should not be construed as conveying that I had found that Ms Y was being untruthful. It meant only that Ms Y’s evidence was not sufficient on its own to lead to the conclusion that the case against the Accused had been proven beyond a reasonable doubt and result in his conviction.

Conclusion on the Findings

127    To summarise, after an assiduous assessment of the evidence led at trial, I convicted the Accused of five charges of molestation pertaining to Ms C, Ms R and Ms V, having found them to be unusually convincing witnesses. I acquitted him of the three charges pertaining to Ms Y.

128    I now turn to discuss the factors undergirding the sentence imposed on the Accused.

Sentencing

129    The sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) guides sentencing for offences under s 354(1) of the Penal Code and invites the court to adopt the following two-step sentencing band approach (at [46] – [49]):

(a)    First, the court should identify under which band the offence in question falls within, having regard to the factors which relate to the manner and mode by which the offence was committed as well as the harm caused to the victim (we shall refer to these as ‘offence-specific’ factors). Once the sentencing band, which defines the range of sentences which may usually be imposed for a case with those offence-specific features, has been identified the court should then determine precisely where within that range the present offence falls in order to derive an ‘indicative starting point’, which reflects the intrinsic seriousness of the offending act.

(b)    Secondly, the court should have regard to the aggravating and mitigating factors which are personal to the offender to calibrate the appropriate sentence for that offender. These ‘offender-specific’ factors relate to the offender’s particular personal circumstances and, by definition, cannot be the factors which have already been taken into account in the categorization of the offence. In exceptional circumstances, the court is entitled to move outside of the prescribed range for that band if, in its view, the case warrants such a departure.

130    The following were identified as relevant offence-specific factors (at [45(a)] of Kunasekaran):

(i) The degree of sexual exploitation. This includes considerations of the part of the victim’s body the accused touched, how the accused touched the victim, and the duration of the outrage of modesty.

(ii) The circumstances of the offence. These include considerations of: (A) the presence of premeditation; (B) the use of force or violence; (C) the abuse of a position of trust; (D) the use of deception; (E) the presence of other aggravating acts accompanying the outrage of modesty; and (F) the exploitation of a vulnerable victim.

(iii) The harm caused to the victim, whether physical or psychological, which would usually be set out in a victim impact statement.

(emphasis added)



131    The characteristics of each band were distilled in the following terms (at [45(b)] of Kunasekaran):

a) Band 1: This includes cases that do not present any, or at most one, of the offence-specific factors, and typically involves cases that involve a fleeting touch or no skin-to-skin contact, and no intrusion into the victim’s private parts.

b) Band 2: This includes cases where two or more of the offence-specific factors present themselves. The lower end of the band involves cases where the private parts of the victim are intruded, but there is no skin-to-skin contact. The higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts. It would also involve cases where there was the use of deception.

c) Band 3: This includes cases where numerous offence specific factors present themselves, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim.

(emphasis added in bold)



132    Taking into account the full spectrum of sentences that may be imposed for s 354(1) offences, the following sentencing bands of imprisonment were calibrated (at [49] of Kunasekaran):

a)    Band 1: less than five months’ imprisonment

b)    Band 2: five to 15 months’ imprisonment; and

c)    Band 3: 15 to 24 months’ imprisonment

The Prosecution’s Position

133    The Prosecution sought a global sentence of between 21 to 26 months’ imprisonment and at least 4 strokes of the cane,[note: 191] with a sentence of:

(a)     between 1 to 2 months’ imprisonment for each offence that involved smacking/slapping of the complainants’ buttocks, on the basis that these fell within Band 1 of the Kunasekaran framework;[note: 192] and

(b)     between 10 to 12 months’ imprisonment and at least 2 strokes of the cane for each offence that involved twin incursions into the complainants’ vaginas and buttocks, on the basis that these fell within Band 2 of the Kunasekaran framework.[note: 193]

134    The Prosecution highlighted that there were two offence-specific factors (viz. the breach of trust and the emotional harm suffered by the complainants) common to all the charges.[note: 194] It was argued that there were no offender-specific factors that served as mitigation.[note: 195]

The Defence’s Position

135    The Defence’s primary submission was that fines ought to be imposed on the Accused. Reliance was placed on the imposition of a $4000 fine on an unreported case concerning another Trust Yoga instructor who had pleaded guilty to touching a student’s buttocks.[note: 196]

136    In the alternative, Defence Counsel sought a global sentence of no more than 10 to 12 months’ imprisonment without caning[note: 197] on the premise that:

(a)     between 5 to 6 months’ imprisonment was sufficient for each offence that involved an intrusion to the complainants’ buttocks and vagina;[note: 198] and

(b)     between 1 to 2 months’ imprisonment for the offences that involved intrusions solely to the complainants’ buttocks.[note: 199]

137    The following factors, said to be mitigating, were highlighted by the Defence:

(a)     the Accused’s parents were financially dependent on him, and he had been unable to provide them with financial support from the time investigations first began;[note: 200]

(b)     the Accused was law-abiding who had no antecedents;[note: 201] and

(c)     the Accused’s former students had complimented his teaching ability and skills.[note: 202]

138    No less than 21 character references were tendered in support of the latter submission.[note: 203] The general tenor of these references was that the Accused was a fun, helpful and experienced yoga teacher who was highly skilled in performing hands-on adjustments to improve his students’ yoga poses.

The Court’s Decision on Sentence

Common offence-specific factors

139    The following offence-specific factors were common to the offences.

(1)   Abuse of trust

140    Foremost, there was aggravation accruing from the Accused’s abuse of the trust reposed in him by the complainants. Trust is a defining element in every teacher-student relationship. In the present case, this intrinsic trust was expressed in the latitude given to the Accused, in his capacity as a yoga instructor, to freely touch the bodies of his female students to perform legitimate physical adjustments during yoga lessons.

141    The testimonies of the three complainants revealed just how innate and foundational this trust was. Ms C testified that she had regarded yoga classes as “a safe space” and had not expected to have been violated during a yoga class by a teacher[note: 204] who was in a position of “authority in the room”.[note: 205] Ms V testified that she had difficulties processing what had happened to her because she could not accept that she had been touched inappropriately by an instructor whom she believed would be “properly trained and know how to adjust the students appropriately.”[note: 206] Ms R regarded the Accused as an “authority figure” whom she had put “on a pedestal” as she assumed that he knew what he was doing because he was in the “position of a teacher, an instructor, even a guru or master”.[note: 207] It was clear to me that the Accused had acted in gross violation of the trust reposed in him by these women.

(2)   Emotional and psychological harm

142    In my judgment, the enduring emotional and psychological harm to the complainants was another factor that had to be accorded weight in sentencing. Ms C’s palpable shock and distress in the immediate aftermath of the molests was apparent to Mr Arvind who testified that she was in a “state of shock” and “crying uncontrollably”.[note: 208] Testifying that the incidents had affected her “quite a bit”, Ms C gave evidence that she no longer practised yoga and had been receiving therapy from a counsellor.[note: 209] Ms V’s overt distress was patent at various junctures of the trial.[note: 210] She also testified that she remained “very affected” by the sexual assaults to date and described them as “a very traumatic experience”. She too, no longer practised yoga in other studios.[note: 211] Ms R testified that she no longer practised yoga and shared that it took her several months to process the “trauma” with a therapist.[note: 212]

Common offender-specific factors

143    I regarded the fact that the Accused had claimed trial to be a neutral factor. While it was his right to do so, he was not entitled to any sentencing discount that would otherwise have applied had he pleaded guilty.[note: 213] Second, given his serial offending I did not consider the Accused to be a first offender. He had no prior convictions only because the law had yet to catch up with him for his misdeeds: Chen Weixiong Jerriek v Public Prosecutor [2003] SGHC 103 at [15] and [17].

144    Third, I did not find the character references submitted by the Defence, to be a meaningful consideration in sentencing. In my view, the subjective attestations as to the Accused’s integrity and characterisation of him as a gentleman, simply did not comport with the objective facts before the court, which undergirded the convictions.

145    Given the content of many of the testimonials (viz. that physical adjustments are par for course in yoga practice and concomitantly, the intimation that students averse to this have the option of availing themselves of the ‘no adjustment’ card offered by Trust Yoga), it is necessary to set in context what this case is about, and by extension, what it is not about. For the writers of these testimonials to understand the sentence imposed by the court, they must first understand the issues engaged in this case.

146    As I had explained at the time of sentencing, this was not a case about the Accused’s proficiency as a yoga teacher. This was also not a case where physical adjustments made during a yoga class, inadvertently or unintentionally encroached into the complainants’ private parts. Neither was this a case where the complainants were averse to physical adjustments and had misconstrued or misunderstood legitimate adjustments made. Put simply, there was no inadvertent, unintentional or accidental touching of Ms C’s, Ms V’s and Ms R’s private parts. This was a case where the Accused had wilfully slapped his students’ buttocks and touched their vaginas with the intention of outraging their modesty, artfully interspersing these acts between performing other legitimate adjustments during the class.

147    Against this backdrop, while the 21 individuals who had penned testimonials for the Accused, appeared to hold him in some regard, their experience was clearly not shared by the three women involved in this case. In this regard, it bears emphasis that the positive encounters others may have had with the Accused, should not in any way invalidate the experience of the women who were sexually assaulted by him. The existence of positive narratives does not diminish the reality of the contrasting experiences Ms C, Ms V and Ms R have suffered.

148    I would also observe that the testimonials might perhaps have carried some weight if they showed that the Accused’s folly was an isolated, momentary aberration that was wholly out of character. However, such a submission could not stand in this case given the Accused’s conviction on five charges involving three different women. In any event, I was mindful that an offender’s good character is most relevant where rehabilitation is the main sentencing consideration and there is no countervailing need for retribution, deterrence or prevention to feature in the sentence: Tan Sai Tiang v Public Prosecutor [2000] 1 SLR(R) 33; Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2nd Ed, 2019) at para 21.008, cited with approval in Niranjan s/o Muthupalani v Public Prosecutor [2023] SGHC 181 at [78]. In the present case, deterrence remained the dominant sentencing consideration given the serious and serial nature of the offending.

149    Finally, I did not consider the adverse personal consequences, including financial hardship to the Accused’s dependents, to be a relevant mitigating factor. Such collateral consequences, whilst unfortunate, are not relevant to sentencing. Quite simply, a person who breaches the criminal law must expect to face the consequences that follow under the law: Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 at [110] to [111] and M Raveendran v Public Prosecutor [2021] SGHC 254 at [13], [22], [38] and [47].

The appropriate sentence

150    It was against this backdrop, that I considered the appropriate starting point for the individual offences.

(1)   The 8th and 10th Charges

151    The degree of sexual exploitation was high since the acts involved incursions into the complainants’ vaginas which were not particularly fleeting. It would be recalled that Ms C testified that the Accused had groped her, swiping his hand from one butt cheek to her vagina and thereafter to her butt cheek in a smooth joint movement.[note: 214] Ms V testified that the Accused had used his hand to touch her from the centre of her buttocks to her vagina.[note: 215]

152    After a holistic assessment of the factors at the first and second stage of the Kunasekaran framework, I found a sentence of 11 months’ imprisonment warranted for each of these offences. In addition, I also imposed 2 strokes of the cane for each of these charges to adequately reflect the need for deterrence and retribution. This accorded with the practice that caning ought to be imposed where a victim’s private parts and sexual organs are intruded upon: Public Prosecutor v Chow Yee Sze [2011] 1 SLR 481 at [9]; cited with approval in GBR v Public Prosecutor [2017] SGHC 296 at [31] and Kunasekaran at [50]. The sentence for the 8th and 10th Charges was thus 11 months’ imprisonment and 2 strokes of the cane, each.

153    To be clear, I was not aided by the precedents cited by the Defence in support of its submission that a sentence of 5 to 6 months’ imprisonment without caning, was appropriate.[note: 216] No two cases are ever alike and the value of a sentencing precedent in determining the sentence to be imposed in a subsequent case is ultimately dependent on the degree of factual similarity between the cases. Bare references to outcomes in precedent cases without consideration of the reasoning leading to outcomes is an unproductive exercise: Toh Suat Leng Jennifer v Public Prosecutor [2022] SGHC 146 at [34] (“Jennifer Toh”).

154    As I had highlighted at the hearing on 15 July 2024, the Defence’s bare reliance on the sentences imposed in five other cases of outrage of modesty, without any attempt to distil the principles which it thought relevant to sentencing in the present case, was unhelpful.[note: 217] Ultimately, the factual dissimilarity of these cases meant that they did not serve as a useful reference point for sentencing in this case.[note: 218]

(2)   The 1st, 7th and 9th Charges

155    These offences involved the Accused smacking/slapping the buttocks of Ms C, Ms V and Ms R, and fell under Band 1 of the Kunasekaran framework. In my view, while the degree of sexual exploitation was not the most egregious, the offence-specific factors canvassed above, certainly rendered the custodial threshold crossed and warranted an imprisonment term of 1 month for each of these offences.

156    For completeness, I found no merit in the Accused’s submission for a fine. I did not regard the precedent cited to me to be a useful comparator, even though it concerned a yoga instructor from the same yoga studio who had pleaded guilty to slapping his student’s buttocks during a yoga class. Foremost, it is an established principle of law that sentencing precedents without grounds or explanations are of little, if any, precedential value because they are unreasoned and it will thus not be possible discern what had weighed on the mind of the sentencing judge: Keeping Mark John v Public Prosecutor [2017] SGHC 170 at [18] and Jennifer Toh at [51], citing Abdul Mutalib bin Aziman v Public Prosecutor and other appeals [2021] 4 SLR 1220 at [99].

157    Second, a key distinguishing factor was the fact that the offender in the case cited had faced a single charge of molest to which he had pleaded guilty. There was thus clear remorse demonstrated by the offender. The same could not be said of the Accused. For these reasons, I placed no weight on the precedent cited by the Defence.

The aggregate sentence

158    The next stage of the sentencing analysis required me to determine how the individual sentences ought to run. This necessitated consideration of whether the offences were unrelated. This was determined by considering whether they involved a single invasion of the same legally protected interest. As a general rule, sentences for unrelated offences should run consecutively, while sentence for offences that form part of a single transaction should run concurrently, subject to the requirement in s 307(1) Criminal Procedure 2010: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [98(b)].

159    In the present case, I found it necessary to order the sentences for the 1st, 8th and 10th Charges to run consecutively. Each of these charges pertained to a different victim and were thus plainly unrelated and not part of a single transaction. This resulted in an aggregate sentence of 23 months’ imprisonment and 4 strokes of the cane.

160    The final stage of the sentencing analysis required me to apply the totality principle and take a “last look” at all the facts and circumstances to ensure that the aggregate sentence was sufficient and proportionate to the Accused’s overall criminality. There are two limbs to the totality principle. First, the court should examine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed. Second, the court should examine whether the effect of the sentence on the offender is crushing and not in keeping with his past record and future prospects: Raveen at [98(c)] and Public Prosecutor v Loh Cheok San [2023] SGHC 190 at [47].

161    In my judgment, no moderation of the sentence was warranted as the aggregate sentence imposed was proportionate to the criminality before me, viz. the Accused’s serial offending which he continues to deny.

Conclusion

162    Sexual violence in all its forms, disregards personal autonomy and deeply violates the core values of respect, equality and protection for all, that bind us as a society. A strong response from the courts is imperative to signal a collective commitment to a society where such violence has no place. The sentence imposed on the Accused, seeks to achieve this.

163    Despite filing an appeal against his conviction and the sentence imposed, the Accused began serving his sentence on 1 October 2024.

164    Two remaining charges which pertain to a fifth complainant,[note: 219] have yet to be dealt with and have been stood down pending the outcome of this appeal.

[note: 1]Parties agreed that the eight charges, viz. MAC-910838-2021 and MAC-910841-2021 to MAC-910847-2021, would be jointly tried pursuant to s 133 of the Criminal Procedure Code 2010 (“CPC”) as the offences were of a “similar character”. See Notes of Evidence (“NE”) 7 March 2023, 2/2-22.

[note: 2]The application for a joint trial did not extend to two further charges which pertained to a fifth complainant (MAC-910839-2021 and MAC-910840-2021). On the Prosecution’s application, these two charges were stood down and will be tried separately, pursuant to the general rule in s 132(1) of the CPC.

[note: 3]Tab A of the Agreed Statement of Facts (“ASOF”)

[note: 4]Tab H, ASOF – Trust Yoga’s record of Ms C’s class attendance

[note: 5]Tab B, ASOF at [18] to [23]

[note: 6]Tab B, ASOF at [24] to [31]

[note: 7]Tab M, ASOF

[note: 8]Tab N, ASOF

[note: 9]Tab O, ASOF

[note: 10]Exhibit P2 comprises recordings of Ms C’s phone conversations with Mr Arvind. Tab P, ASOF comprises a transcript of these conversations.

[note: 11]Exhibit P3 comprises a recording of the conversation that took place during this meeting. Tab Q, ASOF is a transcript of this conversation.

[note: 12]Tab R, ASOF

[note: 13]Tab B, ASOF at [3] to [6]

[note: 14]Tab S, ASOF. Pgs.1 and 2 pertain to Ms R’s communication with Ms C. Pgs. 3 to 31 pertain to Ms Y’s communication with Ms C.

[note: 15]Tab C, ASOF

[note: 16]ASOF at [17]

[note: 17]Tab T-1, ASOF

[note: 18]Tab K, ASOF – Trust Yoga’s record of Ms R’s class attendance

[note: 19]Tab J, ASOF – Trust Yoga’s record of Ms Y’s personal training and group class attendance

[note: 20]Tab U, ASOF

[note: 21]ASOF at [23]

[note: 22]Tab E, ASOF

[note: 23]Tab I, ASOF - Trust Yoga’s record of Ms V’s class attendance

[note: 24] Tab L1, ASOF

[note: 25] Tab L2, ASOF

[note: 26] Tab L3, ASOF

[note: 27] Tab L4, ASOF

[note: 28] Tab L5, ASOF

[note: 29]Prosecution’s Closing Submissions (“PCS”) at [32] to [37]

[note: 30]PCS at [34]

[note: 31]PCS at [38] to [40]

[note: 32]PCS at [126] to [130]

[note: 33]PCS at [122] to [125]

[note: 34]PCS at [131]

[note: 35]ASOF at [8] to [9]

[note: 36]NE 4 July 2023, 19/28-29

[note: 37]NE 3 July 2023, 37/9-21

[note: 38]NE 3 July 2023, 51/8-15

[note: 39]NE 4 July 2023, 32/11-14

[note: 40]NE 4 July 2023, 20/2-4 and NE 4 September 2023, 15/4-13

[note: 41]NE 4 September 2023, 11/19-29

[note: 42]NE 4 September 2023, 8/8-12

[note: 43]NE 4 September 2023, 11/30 – 12/1

[note: 44]NE 4 July 2023, 27/12 – 30/7

[note: 45]NE 4 July 2023, 56/31 – 57/5

[note: 46]NE 3 July 2023, 31/2-25

[note: 47]NE 3 July 2023, 31/26 – 32/26

[note: 48]NE 3 July 2023, 33/12 – 34/19

[note: 49]NE 3 July 2023, 24/20 – 35/8

[note: 50]NE 3 July 2023, 35/14 – 36/16

[note: 51]Defence’s Closing Submissions (“DCS”) at [27] to [30] and NE 14 March 2024, 11/18 – 12/32

[note: 52]DCS at [25]

[note: 53]DCS at [9]

[note: 54]DCS at [20], [21], [25]

[note: 55]DCS at [33] to [39]

[note: 56]Defence’s Reply Submissions (“DRS”) at [60] to [63]

[note: 57]DCS at [40] to [46]

[note: 58]DCS at [47] to [51]

[note: 59]DCS at [52] to [54]

[note: 60]DCS at [62]

[note: 61]DCS at [57] and [60]

[note: 62]PCS at [31] and NE 14 March 2024, 13/11-32

[note: 63]NE 14 March 2024, 34/1-4

[note: 64]The precondition for a joint trial under s 133 of the CPC.

[note: 65]NE 4 July 2023, 57/28, 58/5-23, 71/1-28

[note: 66]NE 7 March 2023, 18/1-8, 19/4-11

[note: 67]NE 7 March 2023, 19/12-17

[note: 68]NE 7 March 2023, 21/26 – 22/8

[note: 69] NE 7 March 2023, 22/14-31

[note: 70] NE 7 March 2023, 93/5-20

[note: 71]NE 7 March 2023, 82/1-6

[note: 72]Tab B, ASOF at [19]

[note: 73]Tab B, ASOF at [20]

[note: 74]Tab B, ASOF at [22] and [23]

[note: 75]Tab B, ASOF at [27] to [29]

[note: 76]Tab B, ASOF at [31] to [32]

[note: 77]DCS at [67] and DRS at [60] to [63]

[note: 78]The rule in Browne v Dunn (1893) 6 R 67, was restated in Harven a/l Segar v Public Prosecutor [2017] 1 SLR 771, citing Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [48]

[note: 79]Tab B, ASOF at [6]

[note: 80]NE 7 March 2023, 50/16-29

[note: 81]NE 7 March 2023, 50/4-7

[note: 82]Tab B, ASOF at [5] and NE 7 March 2023, 56/4-7

[note: 83]NE 7 March 2023, 51/14-21

[note: 84]NE 7 March 2023, 50/9-10

[note: 85]Tab R, ASOF at pg. 1

[note: 86]NE 7 March 2023, 18/15-31

[note: 87] NE 7 March 2023, 19/26-29, 21/21-25

[note: 88] NE 7 March 2023, 90/4-9

[note: 89] NE 8 March 2023, 20/18-29

[note: 90]DCS at [36] to [37]

[note: 91]DCS at [33(c)] and [35]

[note: 92]NE 7 March 2023, 76/18 – 77/2

[note: 93]NE 7 March 2023, 75/15-29

[note: 94]NE 7 March 2023, 66/3-8, 77/3-25, 78/11-14

[note: 95]NE 7 March 2023, 90/24-8

[note: 96]Tab B, ASOF at [32]

[note: 97]NE 8 March 2023, 45/31 – 46/18, 53/21-32

[note: 98]NE 7 March 2023, 13/23-24, 14/1-2 read with NE 8 March 2023, 50/5-6. In the course of his testimony, the Accused himself stated that “the CCTV is very fast” – NE 4 July 2023, 25/13

[note: 99]NE 8 March 2020, 53/13-15, 55/4-12

[note: 100]NE 4 July 2023, 43/26 – 44/17

[note: 101]NE 7 March 2023, 22/18-22 and 92/15-20

[note: 102]NE 7 March 2023, 22/20-21

[note: 103]NE 7 March 2023, 24/8-12

[note: 104]Tab M, ASOF at pg.1 messages four and five

[note: 105]NE 7 March 2023, 24/1-6

[note: 106]Tab M, ASOF at pgs. 2 to 3

[note: 107]Tab N, ASOF

[note: 108]NE 7 March 2023, 96/27-31

[note: 109]NE 8 March 2023, 31/15-24

[note: 110]Tab Q, ASOF at pgs. 1 and 2

[note: 111]NE 8 March 2023, 31/25-27

[note: 112]NE 5 September 2023, 25/11-17

[note: 113]NE 5 September 2023, 26/6-15

[note: 114]NE 4 September 2023, 46/3-4

[note: 115]NE 8 March 2023, 25/10-25

[note: 116]NE 4 September 2023, 28/10-14 and 46/5-7

[note: 117]Exhibit P6 at [11]

[note: 118]NE 4 September 2023, 21/3-9

[note: 119]NE 4 September 2023, 26/29-32

[note: 120]NE 4 September 2023, 33/14-20

[note: 121]NE 4 September 2023, 34/23-25

[note: 122]NE 4 September 2023, 34/4-9

[note: 123]NE 4 September 2023, 25/19-24

[note: 124]NE 8 September 2023, 6/22 – 7/8

[note: 125]NE 5 September 2023, 69/9 – 71/6

[note: 126]MAC-910838-2021

[note: 127]Tab K, ASOF

[note: 128]NE 27 June 2023, 7/3-28, 8/29 – 9/2, 40/1-10

[note: 129]NE 27 June 2023, 6/18-29 and 42/9-17, 43/8-13

[note: 130]NE 27 June 2023, 10/26-28

[note: 131]NE 27 June 2023, 46/18-19

[note: 132]NE 27 June 2023, 11/4-8

[note: 133] NE 27 June 2023, 11/9-19

[note: 134] NE 27 June 2023, 48/22 – 49/3

[note: 135]DCS at [53] to [54]

[note: 136]NE 27 June 2023, 13/24-28

[note: 137]NE 27 June 2023, 16/14 – 17/3

[note: 138] Tab X, ASOF at pgs. 9 and 10

[note: 139]NE 27 June 2023, 19/11-19

[note: 140]NE 27 June 2023, 17/12-22

[note: 141]NE 27 June 2023, 19/27 – 20/4

[note: 142]NE 27 June 2023, 18/11-21

[note: 143]NE 27 June 2023, 18/26 – 19/9

[note: 144]NE 27 June 2023, 19/15-22, 20/18-19

[note: 145]NE 27 June 2023, 48/18-20

[note: 146]NE 27 June 2023, 18/31 – 19/3

[note: 147]NE 27 June 2023, 56/20-24

[note: 148]NE 27 June 2023, 21/14 – 22/2

[note: 149]NE 27 June 2023, 66/9-18 and 23/3-6

[note: 150]NE 27 June 2023, 21/4-5

[note: 151]NE 27 June 2023, 15/4-7

[note: 152]NE 27 June 2023, 21/4-10

[note: 153]NE 27 June 2023, 42/4-5

[note: 154]Ms R read about Ms C’s account at about 1 a.m. on 5 August 2020. She lodged her police report online at 8.52 a.m. that same morning.

[note: 155] NE 27 June 2023, 66/23030

[note: 156] NE 27 June 2023, 68/16-21

[note: 157]NE 27 June 2023, 12/8-10 and 27/10-20

[note: 158]NE 27 June 2023 (Day 5), 42/4-5

[note: 159]NE 27 June 2023 (Day 5), 38/25-28

[note: 160]NE 27 June 2023, 38/25 – 39/5

[note: 161]Tab C, ASOF pg. 2 line 4

[note: 162]NE 27 June 2023, 30/13 – 32/8 and Tab X, of ASOF at pg. 13 read with NE 27 June 2023, 38/18-27 and 44/26 – 45/4. See also the evidence of (DW4) Yee Boon Lee NE 7 September 2023, 6/21-24

[note: 163]NE 27 June 2023, 44/26 – 45/4

[note: 164]NE 27 June 2023, 50/10-23

[note: 165]MAC-910844-2021 and MAC-910845-2021 respectively

[note: 166]NE 9 March 2023, 2/13/18, 7/6-25,8/19-29 and 41/10-12

[note: 167]NE 9 March 2023, 3/21 – 4/20 and 32/4-10

[note: 168]NE 9 March 2023, 49/22-24

[note: 169]NE 9 March 2023, 9/23-29, 34/3-8

[note: 170]NE 14 March 2204, 21/30 – 22/1-5

[note: 171]NE 9 March 2023, 35/20-27

[note: 172]NE 9 March 2023, 5/3 – 6/10

[note: 173]NE 9 March 2023, 9/30 – 10/10, 16/19-24 and 52/7-15

[note: 174]NE 9 March 2023, 39/13-25

[note: 175]NE 9 March 2023, 21/10-24, 33/20-21, 39/26-30, and 46/16-18

[note: 176]NE 9 March 2023, 18/23-31

[note: 177]NE 9 March 2023, 18/16-22, 19/14-16 and 510/28 – 51/8

[note: 178]Ms V explained that she regarded the Forward Bend Pose to be an inversion as the body would not be upright and the head would be below the heart – NE 9 March 2023, 31/1-23

[note: 179]NE 9 March 2023, 11/10-16

[note: 180]NE 9 March 2023, 11/17-21

[note: 181]Tab U, ASOF at pg. 1

[note: 182]NE 9 March 2023, 13/21 – 14/20

[note: 183]NE 9 March 2023, 15/3-8

[note: 184]NE 9 March 2023, 15/17 – 16/2

[note: 185]NE 9 March 2023, 12/1-9 and 16/25-28

[note: 186]NE 4 September 2023, 54/1-7

[note: 187]NE 9 March 2023, 47/4-6 and 27 June 2023, 67/8-10

[note: 188]NE 4 September 2023, 64/28 – 66/11

[note: 189]MACs 910841 to 910843 of 2021

[note: 190]PCS at [92] to [95]

[note: 191]Prosecution’s Address on Sentence (“AOS”) at pg. 1

[note: 192][16] to [19], AOS

[note: 193][13] to [15], AOS

[note: 194][7] to [10], AOS

[note: 195][11] and [12], AOS

[note: 196]Mitigation Plea (“MP”) at [3(a)]

[note: 197]NE 15 July 2024, 8/28-30

[note: 198][3(b)], MP

[note: 199]NE 15 July 2024, 9/15-22 and 11/20-32

[note: 200][14] and [24], MP

[note: 201][25], MP

[note: 202][26], MP

[note: 203]Tab D, MP

[note: 204]NE 7 March 2023, 22/25-30

[note: 205]NE 7 March 2023, 93/17

[note: 206]NE 9 March 2023, 10/3-10, 21/19-20, 39/24-25, 52/11-15

[note: 207]NE 27 June 2023, 15/17-22

[note: 208]NE 8 March 2023, 30/16, 21-23, 31/27

[note: 209]NE 7 March 2023, 45/29 – 46/7

[note: 210]NE 9 March 2023, 5/25-31

[note: 211]NE 9 March 2023, 17/5-8

[note: 212]NE 27 June 2023, 34/3-13

[note: 213]Kunasekaran at [66]

[note: 214]NE7 March 2023, 21/30 – 22/13

[note: 215]NE 9 March 2023, 5/17-26

[note: 216][9], MP

[note: 217]NE 15 July 2024, 8/7-15

[note: 218]In relation to Public Prosecutor v Helmi bin Norman [2022] SGMC 31, see NE 15 July 2024, 12/8-11. In relation to Public Prosecutor v Ong Jun Yong [2024] SGMC 6, Public Prosecutor v Adaikkalam Sivagnanam [2018] SGMC 43, PP v Soh Guan Hup [2023] SGMC 33 and Ng Kum Weng v PP [2021] SGHC 100, see NE 15 July 2024, 12/13-22 and 12/28 – 13/15

[note: 219]MAC-910839-2021 and MAC-910840-2021

"},{"tags":["Landlord And Tenant – Covenants – Landlord’s right of entry","Landlord And Tenant – Covenants – Quiet enjoyment","Landlord And Tenant – Covenants – Repair","Landlord And Tenant – Termination of leases"],"date":"2024-08-30","court":"District Court","case-number":"District Court Originating Claim No. 897 of 2022","title":"Son Jung Wook v Cheong Kian Hock Randall and another","citation":"[2024] SGDC 222","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32469-SSP.xml","counsel":["Yap Bock Heng Christopher (Alpha Law LLC) for the claimant","Oei Ai Hoea Anna (Tan Oei & Oei LLC) (instructed), Sng Kheng Huat (Sng & Co.) for the defendants."],"timestamp":"2024-11-20T16:00:00Z[GMT]","coram":"Sim Mei Ling","html":"Son Jung Wook v Cheong Kian Hock Randall and another

Son Jung Wook v Cheong Kian Hock Randall and another
[2024] SGDC 222

Case Number:District Court Originating Claim No. 897 of 2022
Decision Date:30 August 2024
Tribunal/Court:District Court
Coram: Sim Mei Ling
Counsel Name(s): Yap Bock Heng Christopher (Alpha Law LLC) for the claimant; Oei Ai Hoea Anna (Tan Oei & Oei LLC) (instructed), Sng Kheng Huat (Sng & Co.) for the defendants.
Parties: Son Jung Wook — Cheong Kian Hock Randall — Ang Swee Ghee

Landlord And Tenant – Covenants – Landlord’s right of entry

Landlord And Tenant – Covenants – Quiet enjoyment

Landlord And Tenant – Covenants – Repair

Landlord And Tenant – Termination of leases

30 August 2024

Judgment reserved.

District Judge Sim Mei Ling:

Background

1       The claimant leased the premises at 54 Lakeside Drive [unit number redacted] Caspian, Singapore 648317 (the “Premises”) from the defendants. A total of 3 tenancy agreements were signed:

(a)     The 1st tenancy agreement dated 8 January 2018 for the period 3 February 2018 to 2 March 2020 (the “1st TA”);

(b)     The 2nd tenancy agreement dated 4 January 2020 for the period 3 March 2020 to 2 April 2022 (the “2nd TA”); and

(c)     The 3rd tenancy agreement dated 15 December 2021 for the period 3 April 2022 to 2 May 2024 (the “3rd TA”).

2       The claimant’s complaints relate to events during the 3rd TA. The claimant handed the Premises over to the defendants on 2 September 2022.

The claim

3       The claimant asserted that the defendants breached clause 3(c) of the 3rd TA, the covenant for quiet enjoyment, by committing several acts to harass the claimant, with the intention of forcing the claimant to terminate the 3rd TA so that the defendants could rent out the Premises at a higher rent.

4       The claimant asserted that this amounted to a repudiation of the 3rd TA, which he accepted by his solicitors’ letter dated 23 August 2022.

5       The claimant pleaded in the alternative, that the claimant and the defendants agreed to terminate the 3rd TA and for the claimant to find a replacement tenant.

6       The claimant sought damages for the defendants’ alleged repudiation of the 3rd TA. He also claimed damages for harassment or for breach of his right to quiet enjoyment of the Premises, a return of alleged overpayment of $1,444.50 for air conditioning servicing, and his security deposit of $7,800 (less costs for repairing a damaged hinge).

7       The claimant subsequently withdrew his claim for damages for harassment.[note: 1]

The defence and counterclaim

8       The defendants denied committing the alleged acts or that these amounted to repudiatory breaches of the 3rd TA. Further, there could not have been acceptance of the alleged repudiation on 23 August 2022 as parties entered into a settlement agreement on 16 August 2022 to terminate the 3rd TA with 2 months’ notice. The claimant’s alleged losses were expenses which the claimant had to incur in any event because he agreed to an early termination of the 3rd TA.

9       The defendants said that the claimant breached the settlement agreement by vacating the Premises on 2 September 2022 before the expiry of the 2 months’ notice. The defendants also allegedly incurred costs in rectifying the defects discovered at the handover of the Premises.

10     The defendants therefore counterclaimed for rectification costs, one and a half months’ rent in lieu of notice, and commission which they had to pay for an agent to find a replacement tenant, less the security deposit.

11     The defendants subsequently conceded that there was no evidence to support their claim for commission.[note: 2] They therefore dropped this part of their claim.

Issues for determination

12     The following issues arise for determination:

(a)     In relation to the alleged repudiation of the 3rd TA:

(i)       Did the defendants commit the alleged acts?

(ii)       Do the alleged acts amount to a repudiation of the 3rd TA?

(iii)       Was there an agreement reached on 16 August 2022, and if so, what is its effect?

(iv)       What damages is the claimant entitled to, if any?

(b)     Is the claimant entitled to recover the alleged overpayment for air conditioning servicing?

(c)     Are the defendants entitled to set off the alleged costs of repairs and one and a half months’ rent in lieu of notice against the security deposit?

The alleged repudiation of the 3rd TA

Did the defendants commit the alleged acts

13     The claimant asserted that the 1st defendant committed various acts amounting to a breach of the covenant for quiet enjoyment. These are as follows[note: 3]:

(a)     Sometime in June 2022, the 1st defendant started to make a false allegation that the claimant breached clause 2(q) of the 3rd TA on servicing of the air conditioning.

(b)     The 1st defendant sent numerous emails and WhatsApp texts to the claimant and/or his wife on the false allegation. Even though the claimant appointed Ms Sophia Bay (“Ms Bay”), a salesperson from Propnext Realty Pte Ltd, to liaise with the 1st defendant, the 1st defendant refused to liaise with her and continued to liaise with the claimant.

(c)     The 1st defendant lied to Ms Bay that he would not come to the Premises on 12 August 2022 but turned up with his air conditioning contractor from City Cooling Pte Ltd (“City Cooling”), when the claimant was not home.

(d)     The claimant’s wife was put in fear as the 1st defendant was behaving aggressively. She had no choice but to let the 1st defendant into the Premises, while the claimant had to leave work abruptly and rush back home to deal with the situation.

(e)     Whilst inside the Premises, the 1st defendant brazenly and without authority, walked around the Premises freely, invading the privacy and sanctity of the claimant’s home.

(f)     During the inspection, the 1st defendant demanded that the claimant repaint a wall which had minor discolouration and repair a damaged hinge of a glass door in the toilet with a similar hinge from Germany, which demands were without basis under the 3rd TA.

(g)     The 1st defendant erroneously invoked clause 2(x) of the 3rd TA and demanded that his next inspection be held on 10 September 2022.

(h)     The claimant was asked to pay an invoice from City Cooling dated 12 August 2022 amounting to $1,444.50, which he did as he was intimidated by the 1st defendant’s aggressiveness or under a mistake of fact that he was liable to pay.

(i)     The 1st defendant demanded a variation of the 3rd TA by giving the claimant 2 options to choose from, with the intention of increasing the monthly rent.

14     I will deal with each of the alleged conduct in turn.

Did the 1st defendant make a false allegation in June 2022 that the claimant breached clause 2(q) of the 3rd TA on servicing of the air conditioning?

15     Clause 2(q) of the 3rd TA provides:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(q)    To keep the air conditioning units installed at and for the said Premises in good and tenantable repair and condition. The Tenant is required to take up an air-con service contract (defined cost and time period) with a professionally competent, qualified & reliable air-conditioning contractor to service and maintain the multi-system air-conditioning units at the said Premises at least once every (03) calendar months (4 times per calendar year) at the expense of the Tenant…Such air con servicing contract of air-con job could be arranged and appointed by the Landlord. The Landlord shall not be responsible for repairs, replacement, maintenance or servicing of the air-conditioning units or parts if the Tenant failed to fulfill herein obligation or failed to show and submit proof of regular service report and service contract or due to the willful act or negligence of the tenant. Under such circumstances, the Landlord shall be at liberty to recover such remedies from the security deposit held by the Landlord and subject to paragraph or clause 2(g) the Tenant shall continue to be fully responsible for repair, replace, maintenance & service of the air-conditioning unit or parts. Any additional cost that the Landlord had to, or will have to, incur as a result of the Tenants’ action, the Landlord reserves the right to demand further compensation or reimbursement from the Tenant. Service contract and service report/s shall be forwarded to the Landlord for record purposes when demanded by the Landlord during and beyond the currency of the Tenancy Agreement. Landlord reserves the right and prerogative to engage a professional air-con contractor to check on the air-con system at the end of each renewal lease or should any of the receipt/s is misplaced or any missed air-con servicing, all fees shall be borne by the Tenant.

[Emphasis in original.]

16     Clauses 2(q) of the 1st and 2nd TAs also contain the claimant’s obligation to keep the air conditioning in good and tenantable repair and condition. There are some wording differences.

17     Essentially however, the claimant remained obliged throughout the 3 tenancy agreements, to:

(a)     Keep the air conditioning installed at and for the said Premises in good and tenantable repair and condition;

(b)     Take up an air conditioning service contract with a professionally competent, qualified and reliable air conditioning contractor to service and maintain the multi-system air conditioning at the said Premises at least once every (03) calendar months (4 times per calendar year) at his expense; and

(c)     Forward the service contract and service reports to the defendants for record purposes.

18     The claimant pleaded that the allegation of breach of the 3rd TA was false because he only failed to service the air conditioning once during the 2nd TA. The obligation to service the air conditioning quarterly arose from commencement of the relevant tenancy agreement.[note: 4] As the 3rd TA commenced on 3 April 2022, the first quarterly servicing under the 3rd TA was thus not yet due as of June 2022.

19     The defendants on the other hand take the position that the 3-months’ cycle for servicing should be computed from the date of last servicing (regardless of whether it took place under an earlier tenancy agreement)[note: 5]. They therefore maintained that the claimant failed to carry out quarterly air conditioning servicing in breach of clause 2(q) of the 3rd TA.[note: 6] The defendants only discovered this when the claimant provided the servicing reports/ contracts in June 2022.

20     I accept the defendants’ interpretation, that the 3-months’ cycle should be computed from the last servicing and not only from the start of the 3rd TA:

(a)     Clause 2(q) does not specify how to compute the 3-months’ cycle, save that there should be a minimum of 4 servicing sessions per calendar year.

(b)     Even though there were 3 separate TAs signed, the 2nd TA for the period 3 March 2020 to 2 April 2022 was signed as early as 4 January 2020. Similarly, the 3rd TA for the period 3 April 2022 to 2 May 2024 was signed as early as 15 December 2021. In other words, parties intended for a seamless continuation of the tenancy without any breaks in between.

(c)     By the claimant’s interpretation, the first servicing under the 2nd TA would only be due in June 2020[note: 7]. However, the last servicing under the 1st TA would have fallen due in February 2020.[note: 8] This would result in a servicing gap of 4 months.

(d)     Similarly, by the claimant’s interpretation, the first servicing under the 3rd TA would only be due in July 2022.[note: 9] However, the last servicing under the 2nd TA would have been due in March 2022. This again would result in a servicing gap of 4 months.

(e)     The result of applying the claimant’s interpretation is that for the year 2022, there would only be 3 servicing sessions[note: 10]. This would go against clause 2(q) which requires a minimum of 4 servicing sessions per calendar year.

(f)     If the obligation to service the air conditioning does not arise until 3 months into the 3rd TA, it begs the question why the claimant arranged for a servicing to be conducted in May 2022.[note: 11]

21     The claimant was therefore required to conduct air conditioning servicing in the months of February, May, August and November of each year.

22     The evidence supports the 1st defendant’s assertion that the service orders were only provided in June 2022.[note: 12] This is evident from how the 1st defendant had to make repeated requests for the servicing contract and job sheets / reports. [note: 13] There is nothing before the Court to indicate that the claimant actually provided them earlier.

23     The claimant’s “Service Order Invoice (Tax Invoice)”s[note: 14] show that for the period February 2020 to May 2022, servicing was only done in February, June, September and December 2020, March, July and October 2021, and January and May 2022 (9 sessions). For the period February 2020 to June 2022, there should have been 10 servicing sessions[note: 15].

24     Hence by a 15 June 2022 email, the defendants informed the claimant of a shortfall of 1 quarterly servicing of the air conditioning for the period February 2020 to May 2022.[note: 16] On 15 June 2022, the claimant via his email apologised for the delay and proposed to complete 9 servicing sessions by 2 May 2024. [note: 17] By a further email on 15 June 2022, the 1st defendant requested that the claimant make up the shortfall by arranging a further servicing by 1 July 2022.[note: 18]

25     I agree that the shortfall of 1 servicing session relates to the period under the 2nd TA. This by itself, is not a breach of the 3rd TA. Each of the TAs are separate agreements. While the 2nd and 3rd TAs refer to the defendants granting the claimant a tenancy of the Premises for a “further term”[note: 19], there is nothing to suggest that the obligations under the 1st and 2nd TAs were “carried over”, such that a breach of the 1st and/or 2nd TAs would also amount to a breach of the 3rd TA.

26     That said, the claimant breached quarterly servicing obligations that had already accrued during the 2nd TA. The 1st defendant was thus entitled, notwithstanding the 2nd TA’s expiry, to take issue with the claimant’s breach. Additionally, clause 4(j) of the TAs state that the waiver by either party of a breach shall not be construed as a waiver of any succeeding breach, and any delay or omission to exercise any right which a party may have will not operate as a waiver of a breach or default of the other party.

Did the 1st defendant send numerous emails and WhatsApp texts to the claimant and/or his wife on the false allegation and refuse to liaise with Ms Bay?

27     The claimant pleaded that the 1st defendant sent numerous emails and WhatsApp texts falsely alleging that he breached clause 2(q) of the 3rd TA. The 1st defendant also refused to liaise with Ms Bay, whom the claimant appointed to liaise with the 1st defendant.[note: 20]

28     The defendants pleaded that they had to send these because the claimant was not responsive to their requests for air conditioning servicing reports.[note: 21] The defendants denied that they are contractually obliged to liaise with Ms Bay, and further, the claimant did not notify the defendants of her appointment.[note: 22]

29     In his affidavit of evidence-in-chief (“AEIC”), the claimant identified the specific emails from the 1st defendant which allegedly contained demands without legal basis[note: 23]:

(a)     An email of 15 June 2022 demanding that the claimant submit all air conditioning service orders prior to February 2020[note: 24];

(b)     An email of 15 June 2022 stating that the defendants would appoint their own air conditioning service contractor[note: 25];

(c)     An email of 20 August 2022 demanding the claimant immediately repair door hinges and paint a wall[note: 26]; and

(d)     An email on 23 August 2022 on entering the Premises for inspection[note: 27].

30     I find that the 1st defendant was entitled to make these demands.

31     First, the 1st defendant was entitled to ask the claimant to submit all air conditioning service orders prior to February 2020.

32     The claimant argued that this was without basis because they were for the period prior to the 3rd TA[note: 28]. The claimant further contended that first 3-months’ cycle should be counted from the start of the 3rd TA and thus servicing was not yet due on 7 June 2022[note: 29]. In any event, the defendants did receive service reports from the claimant.[note: 30]

33     However, the obligation to forward the air conditioning service contract and service reports had already accrued under the 1st and 2nd TAs prior to their expiry. The defendants were therefore entitled to ask for these (insofar as they had not been provided), notwithstanding the expiry of the 1st and/or 2nd TA. The service orders were only provided in June 2022 (see [22] above).

34     Secondly, the defendants were entitled to appoint their own air conditioning contractor.

35     Clause 2(q) of the 3rd TA provides that the air conditioning servicing contract could be arranged and appointed by the defendants. There is no evidence that the claimant had taken up an air conditioning servicing contract for the 3rd TA. [note: 31] The last recorded servicing took place on 4 May 2022, and the relevant service order stated that this was the 4th servicing in a cycle which commenced on 21 July 2021.[note: 32] The claimant’s counsel conceded that the claimant did not have a document called air conditioning service contract.[note: 33]

36     That the claimant may have been using one Wonbong Waterpia Pte Ltd without any objections from the defendants[note: 34] does not assist him. The 3rd TA clearly states that the claimant must take up an “air-con service contract (defined cost and time period)”. The 3rd TA also states what services it should include, and requires the claimant to submit the contract to the defendants for record purposes. Clause 4(j) of the 3rd TA provides that any delay or omission to exercise a right will not amount to a waiver of any breach.

37     Thirdly, the 1st defendant was entitled to demand that the claimant repair the broken door hinges and paint over the discolouration on the wall. This is pursuant to clauses 2(d) and 2(x) of the 3rd TA, which state:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(d)    It is the Tenant’s obligation and full responsibility (at the Tenant’s costs and expenses) to keep the interior of the said Premises (including the sanitary and water apparatus, and the Furniture including all doors and doorframes, windows and window-frames, window handlers [sic] and shower door hinges) thereof all in good and tenantable condition throughout this tenancy (fair wear and tear excepted) and to repair or replace the same with new ones of comparable quality if spoiled, damaged, lost or broken and to yield up the same in good order and tenantable condition at the lawful termination of this tenancy in accordance with its covenants stated in this agreement…

(x)    To permit the Landlord and the Landlord’s agents, surveyors, workmen and prospective buyer/tenants with all necessary appliances to enter upon the said Premises at all reasonable times by prior appointment (excepted in the case of emergency) for the purpose whether of viewing the condition thereof or of doing such works and things as may be required for any repairs, alterations or improvements whether of the said Premises or of any parts of any building to which the said Premises may form a part of or adjoin. To forthwith comply with any notice that may be given by the Landlord requiring any breach of any of the obligations on the part of the Tenant under this Agreement to be made good provided that if the Tenant shall fail to remedy such breach of obligation within a reasonable time it shall be lawful for the Landlord or its agent with or without workmen and others (but without prejudice to the right of re-entry herein contained) by prior appointment at reasonable times to enter the said Premises and execute the necessary repairs and maintenance.

[Emphasis in original.]

38     What the claimant in fact takes issue with is how the inspection was conducted without his agent present[note: 35]. For the reasons which I will come to later, I find no issue with how the inspection came about or was conducted.

39     Fourthly, the 1st defendant was entitled to request a further inspection to view the condition of the Premises or doing such works as may be required, pursuant to clause 2(x) of the 3rd TA.

40     Lastly, was it wrong for the 1st defendant to continue communicating with the claimant directly after 10 August 2022[note: 36]?

41     In my view, the answer is no. The claimant did not give the 1st defendant prior notice of Ms Bay’s appointment. Instead, it was Ms Bay who messaged the 1st defendant on 10 August 2022 stating that she would be handling the claimant’s leasing matters.[note: 37] The 1st defendant then asked the claimant to confirm that Ms Bay was his agent.[note: 38] The claimant does not appear to have responded to this message.

42     In any event, it is not true that the 1st defendant refused to liaise with Ms Bay. In evidence are numerous WhatsApp messages between them on the 3rd TA. The 1st defendant even liaised with Ms Bay on the handover of the Premises on 2 September 2022.[note: 39] At the same time, there is nothing objectionable in the 1st defendant’s conduct in communicating with the claimant on 20 and 23 August 2022 on issues concerning the 3rd TA, notwithstanding Ms Bay’s appointment.

Did the 1st defendant lie to Ms Bay that he would not come to the Premises on 12 August 2022?

43     The claimant pleaded that the 1st defendant lied to Ms Bay that he would not come to the Premises on 12 August 2022, but turned up with City Cooling when the claimant was not home.[note: 40] The defendants said that parties had agreed to this inspection, and the 1st defendant did not tell Ms Bay that he would not be coming to the Premises on 12 August 2022.[note: 41]

44     Initially, the claimant testified that because the 1st defendant had informed Ms Bay that he was not going to the Premises, Ms Bay did not go to the Premises. Ms Bay had also informed the claimant that the 1st defendant was not going to be at the Premises.[note: 42]

45     However, at the second tranche of trial, the claimant conceded that he made a mistake, and Ms Bay never said that the 1st defendant told her he would not be attending the inspection on 12 August 2022. He claimed that this mistake arose because he was fixated on how the 1st defendant was supposed to come in the afternoon but instead came in the morning.[note: 43]

46     I find that the 1st defendant did not say he was not coming to the Premises on 12 August 2022 or that he was only coming in the afternoon[note: 44]. The following exchanges are pertinent:

(a)     On 4 August 2022, the 1st defendant sent a WhatsApp message to the claimant that the air conditioning checking and servicing would be arranged on 12 August at 10.30am, and that this appointment would be confirmed if the claimant did not reply by 5 August 2022. The claimant did not respond.[note: 45]

(b)     The claimant was nevertheless aware of the appointment, because Ms Bay then messaged the 1st defendant on Wednesday, 10 August 2022, stating her understanding that there was an upcoming air conditioning servicing on Friday (i.e. 12 August 2022) and asking for more details.[note: 46]

(c)     On 11 August 2022 at 3:33pm, the 1st defendant told Ms Bay “see you tomorrow 10.30am-12pm at Caspian”. Ms Bay replied “yes”.[note: 47]

(d)     At 3:50pm, Ms Bay informed the 1st defendant that she could reach around 12pm and suggested letting the air conditioning contractor go up first, and meeting at 12.15pm to inspect the Premises.[note: 48] The 1st defendant did not respond on this query as parties then discussed novating the 3rd TA and revising rental.

(e)     At 6:09pm, Ms Bay asked if the 1st defendant was still going for the inspection.[note: 49] The claimant accepted that as of 6:09pm, there was still an agreement between Ms Bay and the 1st defendant to meet at the Premises.[note: 50]

(f)     The 1st defendant then replied “hope to see you [tomorrow]”.[note: 51] Ms Bay then asked if 12.15pm was ok.[note: 52] The 1st defendant did not respond directly to this message but said “see you [tomorrow]”, to which Ms Bay said “OK, see you”.[note: 53] Parties then continued discussing novating the 3rd TA.

(g)     However, on 12 August 2022 at 10:57 am, Ms Bay informed the 1st defendant that she would like to cancel their meeting[note: 54]. According to Ms Bay, this was because the 1st defendant had raised his voice at her during an earlier call.[note: 55]

47     The claimant conceded that the WhatsApp messages do not show the 1st defendant telling Ms Bay that he would not turn up at the Premises.[note: 56]

48     Ms Bay claimed that the 1st defendant and her had spoken about the 1st defendant not attending at the Premises without her.[note: 57] However, this assertion is not found in her AEIC and there are no such messages to this effect in evidence. Neither are her telephone records in evidence.

Did the 1st defendant behave aggressively with the result that the claimant’s wife was put in fear, while the claimant had to leave work abruptly and rush back home to deal with the situation?

49     The claimant claimed that the 1st defendant was aggressive when he was in the Premises on 12 August 2022 and even prior to 12 August 2022:

(a)     In his AEIC, the claimant alleged that the 1st defendant said in a loud tone something about why servicing of the air conditioning was not done, which put his wife and daughter in fear, and scolded the air conditioning servicing staff.[note: 58]

(b)     On the stand, the claimant claimed that there were several conversations between his wife and the 1st defendant in June and July 2022 where he shouted at her, causing her to be put in fear.[note: 59] His wife was also put in fear because the 1st defendant had bombarded them with emails on the issue of air conditioning servicing.[note: 60]

50     These assertions are not part of the claimant’s pleaded case. The claimant’s case, based on his pleadings, is that the 1st defendant had behaved aggressively outside the Premises on 12 August 2022, prior to the actual inspection:

(a)     The claimant initially pleaded that the 1st defendant behaved aggressively causing his wife to be put in fear, and she had no choice but to let the 1st defendant into the Premises. The claimant had to leave work abruptly and rush back home to deal with the situation.[note: 61] This suggests that the 1st defendant was aggressive when he was outside the Premises.

(b)     However, in his Defence to Counterclaim, the claimant stated that it was actually the air conditioning contractor who was waiting outside the Premises, which prompted the claimant’s wife to call the claimant at his office. When the claimant reached home, the 1st defendant had not arrived and the air conditioning contractor was still waiting at the door.[note: 62]

(c)     The pleadings do not say that the 1st defendant behaved aggressively when he was in the Premises or even before 12 August 2022.

51     The claimant conceded under cross-examination that his Statement of Claim was referring to the 1st defendant’s alleged conduct on the day itself, i.e. 12 August 2022, and this had nothing to do with alleged conversations in June and July 2022.[note: 63]

52     I find that the claimant has failed to establish his pleaded case that the 1st defendant behaved aggressively outside the Premises.

53     The claimant’s AEIC is silent on the 1st defendant’s allegedly aggressive conduct prior to entering the Premises.

54     The claimant did not call his wife as a witness. He said that was because he did not think it was necessary[note: 64] and he did not want to put her through a difficult position.[note: 65] There is therefore no direct evidence that his wife was put in fear by reason of the 1st defendant’s allegedly aggressive conduct.

55     In fact, the claimant was already at the Premises when the 1st defendant turned up with the air conditioning contractor.[note: 66]

56     Under cross-examination, the claimant conceded that he had arrived at the Premises either before or at around the same time as the 1st defendant[note: 67]. It was the claimant who let the 1st defendant into the Premises. The 1st defendant did not push his way in. There was no bodily contact and it was not the case that the 1st defendant came in despite the claimant’s protests.[note: 68]

57     Even the claimant’s non-pleaded assertions are not borne out by the evidence.

58     The defendants have produced a video recording which the 1st defendant claimed was taken by accident when he was in the Premises on 12 August 2022, as well as transcripts of their conversation. The video does not show the 1st defendant saying in a loud tone something about why servicing of the aircon was not done, or scolding the air conditioning servicing contractor. [note: 69]

59     I am not convinced by the claimant’s attempts to challenge the video recording:

(a)     The claimant argued that because the video was taken some time after the 1st defendant or the air conditioning service contractor had already entered the Premises, it did not capture the 1st defendant shouting at the claimant’s wife[note: 70]. However, this was not put to the 1st defendant.

(b)     The claimant argued that the video could not have been taken accidentally because deliberate steps must be taken to record a video on a mobile phone.[note: 71] This was not put to the 1st defendant. He was only cross-examined on how the video could not have been taken accidentally because he was “focusing on the camera”.[note: 72] In any event, I do not see how anything turns on whether the video was taken accidentally or intentionally.

(c)     The claimant argued that the video may have been doctored and/or there is another video which the defendants failed to produce[note: 73]. The sole basis of this assertion is the defendants’ pleading that there was a “video recording evidencing that the Claimant was present and waiting for the 1st Defendant and the Air-Con Contractor to arrive on 12 August 2022”.[note: 74] That the video could have been doctored was not put to the 1st defendant. Counsel for the claimant had merely asked if the 1st defendant had edited the video by “cutting”, and the 1st defendant answered that he did not.[note: 75] The 1st defendant denied that there were any other video recordings.[note: 76] The claimant has no evidence to suggest that the video was in fact doctored or that there is another video recording.

60     Ultimately, the claimant did not seek to challenge the 1st defendant’s account of what happened in the Premises or put the claimant’s version of events to the 1st defendant during cross-examination.

61     I also decline to draw adverse inferences against the defendants for not calling any witness from City Cooling.[note: 77] The defendants were not cross-examined on why they did not call any City Cooling representative as a witness. Further, the claimant himself could have called a City Cooling representative as a witness, given that there is no property in a witness: Prince Restaurant Pte Ltd v Kosma Holdings Pte Ltd [2017] SGHC 245 at [43] – [45].

62     I therefore find that the claimant has not discharged his burden of proving that the 1st defendant behaved aggressively at the Premises on 12 August 2022.

63     There is also insufficient proof of the 1st defendant’s allegedly aggressive conduct prior to 12 August 2022.

64     The claimant did not hear for himself the alleged conversations between his wife and the 1st defendant in June and July 2022. He was unable to say what they were about, other than his belief that the 1st defendant must have said something to his wife to put her in fear. [note: 78]

65     As for the emails on air conditioning servicing, I have found that the 1st defendant was entitled to ask for service reports and take issue with the shortfall in quarterly air conditioning servicing.

Did the 1st defendant, whilst inside the Premises, brazenly and without authority, walked around the Premises freely, invading the privacy and sanctity of the claimant’s home?

66     The claimant pleaded that the 1st defendant brazenly and without authority walked around the Premises, freely invading the privacy and sanctity of the Premises.[note: 79] The defendants denied this and stated that the 1st defendant was standing in the living room at all material times.[note: 80]

67     In particular, the claimant took issue with how the 1st defendant walked around the Premises to inspect it, and did not ask for permission before entering each room. According to him, because he only consented to inspection of the air conditioning, it should have been the air conditioning contractor, and not the 1st defendant himself, conducting the inspection.[note: 81]

68     However, clause 2(x) of the 3rd TA allows not just the defendants’ agents, surveyors, workmen and prospective buyer/tenants with all necessary appliances to inspect the Premises, but the defendants as well.

69     Further, clause 2(x) of the 3rd TA cannot be so restrictively construed as to require the 1st defendant to additionally seek the claimant’s consent each time he wanted to inspect fittings other than the air conditioning or before entering each room.

70     I come to this conclusion bearing in mind the following principles in Earl of Plymouth and others v Rees and another [2020] 4 WLR 105:

(a)     A landlord’s right of entry must be interpreted to work in a sensible fashion. There is no rule that it must be strictly construed or, where there were 2 possible interpretations, that a narrower interpretation should be preferred (at [59]).

(b)     It is in every case a question of interpreting the clause in question in its context. Part of the context is that the purpose of the contract was to confer on the tenant the right to exclusive possession of the premises (at [66]).

(c)     Accordingly, the right of entry was not a right to enter for entry’s sake, but a right to enter for a particular purpose. Accordingly, if a purpose was a reasonable one for which the landlords wish to enter the land, the proper interpretation of the right must be to enable them to do what was reasonably necessary to achieve that purpose, but conversely, if what they wanted to do (or what was reasonably necessary to do) in order to achieve a particular purpose was highly intrusive, then the purpose itself might be held not to be a reasonable one (at [70]).

(d)     Whether something the landlords want to do on the land is permitted by the right is a question of fact and degree in each case (at [71]).

71     All clause 2(x) requires is that there be a prior appointment for inspection, which inspection must take place at a reasonable time. The claimant was aware of the inspection on 12 August 2022. The defendants can conduct inspection for various purposes, whether to view the condition of the Premises or to do any works that may be required. The 1st defendant was therefore entitled to inspect the condition of Premises on 12 August 2022. Reading clause 2(x) sensibly, there is no requirement that the 1st defendant must additionally seek the claimant’s consent to inspect fittings other than the air conditioning or before entering each room, when parties had already agreed to the inspection on 12 August 2022. I do not find the 1st defendant’s inspection to be so intrusive such as to be unreasonable.

Did the 1st defendant demand without basis that the claimant repaint a wall which had minor discolouration and repair a damaged hinge of a glass door in the toilet with a similar hinge from Germany?

72     The claimant pleaded that during the “illegal inspection” on 12 August 2022, the 1st defendant found a minor discolouration on a wall and demanded that it be repainted. The 1st defendant also found a damaged hinge of the glass door in the toilet and demanded that it be repaired with a similar hinge from Germany and in September 2022. Such claims, according to the claimant, had no basis under the 3rd TA.[note: 82]

73     The defendants pleaded that the 1st defendant had spotted a bad stain on the wall and merely requested the claimant to remove it. The air conditioning contractor was the one who noticed the damaged hinge when he was trying to wash the air conditioner filter. The 1st defendant only requested that it be repaired, and mentioned in passing that the hinge was from Germany.[note: 83]

74     The claimant does not dispute that there was minor discoloration to the wall and a damaged hinge.[note: 84]

75     The claimant clarified that the basis of his objection is that the inspection on 12 August 2022 was supposed to be of the air conditioning, and the 1st defendant ought to have asked for permission if he wanted to inspect fittings other than air conditioning. Further, this had to be on an agreed date and time so that the claimant’s agent could be present.[note: 85]

76     For the reasons set out at [37] to [38] and [69] to [71], the 1st defendant was entitled to inspect the Premises on 12 August 2022 and demand that the claimant repaint the wall and repair the damaged hinge.

Did the 1st defendant erroneously invoke clause 2(x) of the 3rd TA and demand that his next inspection be held on 10 September 2022?

77     The claimant pleaded that because of the “illegal inspection”, the 1st defendant erroneously invoked clause 2(x) of the 3rd TA and demanded via several emails to the claimant, that his next inspection be on 10 September 2022 between 10 am and 6pm.[note: 86]

78     The defendants said these requests for further inspection were made because the air conditioning contractor who attended at the Premises on 12 August 2022 had highlighted that 2 of the air conditioning units may need chemical washing. The claimant did not respond to these requests.[note: 87]

79     As I have found at [39], the 1st defendant was entitled to demand a further inspection on 10 September 2022.

Was the claimant intimidated by the 1st defendant’s aggressiveness to pay an invoice from City Cooling dated 12 August 2022 amounting to $1,444.50?

80     The claimant pleaded that City Cooling had rendered a service report dated 12 August 2022 for “change 2nd hand fancoil dining room” and “change new fan motor room 1”, amounting to $1,444.50. This was work done beyond air conditioning servicing and/or outside the scope of the claimant’s obligations under clause 2(q) of the 3rd TA. The claimant paid this because he was intimidated by the 1st defendant’s aggressiveness or under a mistake of fact that he was liable.[note: 88]

81     The defendants said that the air conditioning was damaged because the claimant failed to maintain the air conditioning as per clause 2(q) of the 3rd TA. The air conditioning contractors had advised doing these works. The claimant had paid City Cooling without demur. The 1st defendant did not intimidate the claimant. [note: 89]

82     For the reasons set out at [49] to [62] above, the claimant has failed to discharge his burden of proving that the 1st defendant behaved aggressively at the Premises on 12 August 2022.

83     The claimant was in any case obliged to pay City Cooling’s invoice.

84     As noted at [23] to [26] above, the claimant had missed 1 air conditioning servicing during the 2nd TA. Additionally, since the 3rd TA commenced, there had only been 1 air conditioning servicing on 4 May 2022. By 12 August 2022, it had been more than 3 months since the last servicing.

85     Clauses 2(q) of the 2nd and 3rd TAs allow the defendants to demand compensation or reimbursement from the claimant for any additional costs the defendants incur for any repairs, replacement, maintenance or servicing of the air conditioning or parts as a result of the claimant’s failure to fulfill his obligations or show and submit proof of regular service report and service contract. Under the 3rd TA, the defendants also reserved the right to engage a professional air conditioning contractor to check on the air conditioning if there was any missed servicing, and all fees would be borne by the claimant.

Did the 1st defendant demand a variation of the 3rd TA by giving the claimant 2 options to choose from, with the intention of increasing the monthly rent?

86     The claimant pleaded that even though there was a valid tenancy agreement, the 1st defendant demanded a variation of the 3rd TA by giving the claimant 2 options to choose from, with the main intention of increasing monthly rental.[note: 90]

87     The defendants pleaded that it was actually Ms Bay who proposed that the defendants agree to a novation agreement with the claimant’s company, LT Sambo Co Ltd, or that a replacement tenant, at a monthly rental of $4,800, be found.[note: 91]

88     The evidence shows that it was not a unilateral demand by the 1st defendant to vary the 3rd TA. Rather, parties had been discussing how to revise the 3rd TA. This appears to have arisen because of rental arrears:

(a)     On 10 August 2021, the 1st defendant’s messaged Ms Bay to remind the claimant to pay the arrears since 2021. He also proposed converting the tenancy to a company tenancy at a higher rent, on the basis that a personal lease did not come with an agent who could assist the claimant.[note: 92]

(b)     Ms Bay discussed this with the claimant, who then proposed changing the tenancy to a company lease at an additional $100-$200 in monthly rental. [note: 93]

(c)     The 1st defendant and Ms Bay (on the claimant’s behalf) continued discussing the increase in rental and how to document the changes.[note: 94]

(d)     Eventually, by an email of 14 August 2022, the 1st defendant gave the claimant 2 proposals: (1) for the claimant to pay a revised rental of $3,800 per month from the next rental due date up to the expiry of the 3rd TA, with the claimant being at liberty to engage his own agent to handle tenancy matters; or (2) for the claimant to find a replacement tenant at $4,000 a month from 3 September 2022 to 2 October 2024 with a possibility of ending the new lease on 2 May 2024, and on similar terms and conditions as the 3rd TA.[note: 95]

(e)     There was a meeting at Waterway Point on 15 August 2022, attended by the claimant, the 1st defendant and Ms Bay, to discuss the way forward.[note: 96]

89     It was the claimant himself, who decided to terminate the 3rd TA.[note: 97] Hence on 16 August 2022, the claimant informed the 1st defendant that he would accept the 2nd option set out in the 1st defendant’s 14 August 2022 email. He also informed the 1st defendant that he would terminate the 3rd TA with 2 months’ notice and tasked Ms Bay to look for a replacement tenant.[note: 98]

Do the alleged acts amount to a repudiation of the 3rd TA?

90     Even if the 1st defendant committed any of the alleged acts, I am of the view that these would not amount to a breach of the covenant for quiet enjoyment.

91     Clause 3(c) states:

AND THE LANDLORD HEREBY AGREES WITH THE TENANT as follows:

(c)    That the Tenant paying the rent thereby reserved, observing and performing the several covenants and stipulations on the Tenant's part herein contained shall peacefully and quietly hold and enjoy possession of the said Premises during the terms hereby created without any interruption by the Landlord or any person or persons lawfully claiming under or in trust for the Landlord.

[Emphasis in original.]

92     To amount to a breach of the covenant for quiet enjoyment, there must be some interference with the enjoyment of the demised premises. The interference need not be direct or physical so long as it substantially interferes with the title to or possession of the demised premises or the ordinary and lawful enjoyment of those premises by the tenant. Whether this interference has taken place is, in each case, a question of fact: Lim Kau Tee v Lee Kay Li [2005] SGHC 162 (“Lim Kau Tee”) at [48] - [54].

93     The following instances would amount to a breach of the covenant for quiet enjoyment:

(a)     Where a tenant had to move out of the house for 2 weeks to allow the landlord o paint the house: Budd-Scott v Daniell [1902] 2 KB 351, cited at Lim Kau Tee at [58].

(b)     Where a landlord used abusive language demanding that the tenant leave the premises, and where on the last occasion, the tenant’s wife had been so terrified such that she hid underneath one of the caravans: Sampson v Floyd [1989] 2 EGLR 49, cited at Lim Kau Tee at [59].

(c)     Where a landlord tried by a series of threatening communications, to drive the tenant out of her possession of the premises, not merely by threatening legal proceedings, but of physical eviction of the tenant and removal of her belongings. There was also an element of direct physical interference as the landlord repeatedly knocked on the door and shouted the threats to her: Kenny v Preen [1963] 1 QB 499, cited at Lim Kau Tee at [60].

94     In contrast, the following have been found to not amount to a breach of the covenant for quiet enjoyment:

(a)     A temporary inconvenience which renders the tenant’s access to his premises less convenient than it was, but does not interfere with the tenant’s title or possession: Manchester, Sheffield & Lincolnshire Railway Company v Anderson [1898] 2 Ch 394 at 401.

(b)     A temporary inconvenience in the form of noise caused by construction works: Phelps v City of London Corporation [1916] 2 Ch 255.

(c)     Sending a solicitors’ letter threatening to exercise the landlord’s right of re-entry in relation to claims for outstanding rental which the tenant deliberately refused to pay, and where the tenant was not frightened at the prospect of being locked-out as he had already held closing-down sales: Lim Kau Tee at [61].

95     The conduct the claimant complained of amounts at best to a temporary and insubstantial inconvenience. It also did not rise to the level of interfering with the claimant’s possession or his ordinary and lawful enjoyment of the Premises. The allegedly wrongful inspection only took place over several hours on 12 August 2022. The claimant has only been able to point to several emails where the 1st defendant allegedly made claims without legal basis.

96     The claimant has not explained how the effect of the 1st defendant’s alleged conduct was to deprive him substantially of the whole benefit which it was intended that he should obtain from the 3rd TA, such that he was entitled to terminate the 3rd TA: RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 at [99]. Despite the inspection on 12 August 2022 and the sending of several emails, the claimant was still able to enjoy exclusive possession and use of the Premises.

97     Accordingly, I find that there was no repudiatory breach of the 3rd TA.

Was there an agreement reached on 16 August 2022, and if so, what is the effect of this agreement?

98     Even if there was a repudiatory breach, the claimant could not have accepted this by his solicitors’ letter of 23 August 2022[note: 99]. This is because parties had on 16 August 2022, already agreed to terminate the 3rd TA.[note: 100]

99     I pause to observe that the claimant has taken inconsistent positions on whether parties had agreed to terminate the 3rd TA.

100    The claimant had pleaded (albeit in the alternative) that the claimant and the defendants had agreed to terminate the 3rd TA and for the claimant to find a replacement tenant.[note: 101] In closing submissions, the claimant submitted that there was a “Settlement Agreement” between parties, the terms of which were set out in Ms Bay’s handwritten notes taken at their 15 August 2022 meeting [note: 102] , which state[note: 103]:

1)    Letter for 2 months’ notice (termination)

2)    No commission from landlord

3)    Rental $4,000/-

4)    SB commission to be held by landlord

5)    Caspian – MA hold $1K for job/work/minor repair SB to check

6)    Handover date to be confirmed

7)    Reinstatement as per TA (confirm & comply as pe TA)

8)    NT to pay legal costs of TA estimated $1K

9)    Security deposit to be refunded after deduction, if any (as per TA).”

101    Yet, in his reply submissions, the claimant denied that the 3rd TA was terminated by agreement. He also denied that the new agreement was evidenced by Ms Bay’s handwritten notes and the claimant’s email of 16 August 2022.[note: 104] The claimant argued that there could not have an agreement because item 6 of Ms Bay’s notes states “handover date to be confirmed”, but this date was not confirmed. He also relied on the 1st defendant’s subsequent requests for further inspection and rectification of hinges, as inconsistent with the existence of a new concluded agreement. [note: 105]

102    I find that parties had reached an agreement on 16 August 2022 to terminate the 3rd TA:

(a)     The claimant’s revised position is inconsistent with his own email stating that he would accept the 2nd option set out in the 1st defendant’s 14 August 2022 email and that he was agreeable to the Ms Bay’s handwritten notes of 15 August 2022.[note: 106]

(b)     That parties had not confirmed the exact handover date does not prevent a finding that an agreement was reached. All the essential terms were agreed upon.

(c)     Without the agreement on 16 August 2022, the claimant would not have been entitled to give 2 months’ notice of termination. Clause 4(g) of the 3rd TA provides that the claimant had to fulfill the tenancy period of 25 months and that the claimant did not have an option of terminating the 3rd TA.

103    The 1st defendant was entitled to insist that the claimant complied with his obligations under the 3rd TA. The 3rd TA would only come to an end on 15 October 2022. Further, as per item (7) of Ms Bay’s notes, the claimant still had to comply with his reinstatement obligations in the 3rd TA.

104    The claimant did not reserve his ability to sue for any alleged prior breaches.[note: 107] Notably, the claimant himself in closing submissions, referred to the agreement as a “Settlement Agreement”.[note: 108] The claimant is therefore precluded from relying on the defendants’ repudiatory conduct (if any), as a basis for terminating the 3rd TA.

The claimant’s damages claim

105    The claimant pleaded that because of the defendants’ breach, the claimant had to move out of the Premises into a new rental residence and pay a higher monthly rental, thereby suffering loss and damage as follows[note: 109]:

(a) Rental difference between the new rent of $4,800.00 and $3,400.00 for the period of 25 months

$35,000.00

(b) Ad Valorem Stamp Duties paid for the 3rd TA

$340.00

(c) Ad Valorem Stamp Duties paid for the new tenancy agreement

$460.00

(d) Costs of Movers [The Trio Movers Pte Ltd (UEN: 202108869N)] for the services of moving from the Premises to new residence

$980

(e) Agent commission for the new residence

$5,136.00

(f) Payment for the services rendered by Ms Bay in liaising with the 1st defendant; in procuring the replacement tenant, Jia Guanyuan (“Jia”); and in attending the handover of the Premises to the defendants on 2 September 2022

$5,184.00

Total:

$47,100



106    In respect of [105(b)], these are costs that the claimant would have incurred in any event, upon entering the 3rd TA.

107    Given my finding that there was no repudiatory breach, the claimant is not entitled to recover the alleged costs of moving to new premises ([105(a), (c), (d) and (e)]). Even if there was a repudiatory breach, these are costs that the claimant would have incurred in any event following his decision to terminate the 3rd TA with 2 months’ notice.

108    In respect of [105(f)], no breakdown of Ms Bay’s fees has been provided.[note: 110] In any case, the claimant is not entitled to recover these. It was the claimant who chose to appoint Ms Bay as his agent to liaise with the 1st defendant and attend at the handover. The claimant would have to incur Ms Bay’s fees for finding a replacement tenant in any event as a result of his agreement to find a replacement tenant.

109    The claimant also has a claim for alleged overpayment of City Cooling’s fees of $1,444.50. For the reasons at [83] to [85] above, the claimant is obliged to bear this cost.

110    Finally, the claimant sought a return of his security deposit of $7,800 less any deductions. The defendants have asked that this be set off against their counterclaim. Per clause 2(b) of the 3rd TA, the security deposit shall be refunded to the claimant within 40 days after expiry or lawful termination of the 3rd TA but the defendants can deduct any sum as may be reasonable to remedy any failure by the claimant to observe or perform his obligations under the 3rd TA.

111    I find that the defendants are entitled to set off the security deposit against their counterclaim, but for the reasons I will come to shortly, I only allow the counterclaim in part, leaving a remaining $1,423.80 which the defendants are to refund the claimant.

The defendants’ counterclaim

Cost of repairs

112    The defendants said that they incurred the following reinstatement costs because the claimant failed to hand over the Premises in like condition as at the commencement of the tenancy[note: 111]:

(a) Repainting works to living and bedrooms

$3,477

(b) Costs of replacing the damaged hinges to glass swing shower doors at toilets

$706.20

(c) Costs of restoring and polishing the parquet floor at bedrooms and parquet wall skirting at the dining area

$2,000

(d) Costs of restoring damaged kitchen tap and silicon at kitchen sink

$50

(e) Costs of professional cleaning of the Premises

$576

(f) Costs of repairing damaged door lockset and laminated panel of kitchen semi-glass door and drawer lockset at bedroom 1

$80

(g) Costs of restoring damaged hob backing above hob and damaged hood aluminum filter and charcoal filter at kitchen

$300

(h) Costs of restoring damaged box up wall grouting at fridge area

$200

(i) Costs of chemical wash and topping up of gas to air conditioning

$570

(j)    Costs of restoring damaged door frames at the bedrooms

$200

(k)    Costs of replacing the irreparably damaged washer, TV and the dining table set with 4 chairs

$1,100

(l) Costs of replacing damaged casement window gasket

$2,200

Total:

$11,429.20



113    Clause 2(t) of the 3rd TA states:

THE TENANT HEREBY COVENANTS WITH THE LANDLORD as follows:

(t)    At the expiration or the sooner termination of the tenancy to peacefully and quietly deliver up and yield up to the Landlord the said Premises in like condition as if the same were delivered to the Tenant at the commencement of the [1st TA], as well as shall be in accordance with the conditions, covenants and stipulations herein contained in this Tenancy Agreement. At the expiration or sooner termination of the tenancy, the Landlord shall have the prerogative to effect the reinstatement works himself / themselves as stated out in this paragraph and/or clause 2(g).

[Emphasis in original.]

114    Clause 2(d) of the 3rd TA also contains the obligation to yield up the interior of the said Premises in good and tenantable condition at the lawful termination of the 3rd TA.

115    The claimant admitted that the door hinges in the common toilet were damaged. He thus acknowledged that the defendants are entitled to deduct from the security deposit, their reasonable costs for rectifying these.[note: 112] As for the other alleged defects however, the claimant pleaded that: (1) these were not highlighted during the joint inspection on 2 September 2022; (2) the defendants failed to invite him to conduct a joint inspection to verify these or give him an opportunity to comment on the rectification costs; (3) the defendants failed to mitigate the loss; and (4) the alleged defects were in fact fair wear and tear.[note: 113]

116    However, in closing submissions, the claimant instead argued that[note: 114]:

(a)     The defendants have not proven the condition of the Premises as at the time of commencement of the 1st TA;

(b)     The defendants have not proven the alleged defects existed when the Premises were handed over; and

(c)     Not all the alleged expenses are supported by receipts.

117    Dealing with (a), the claimant questioned the authenticity of the defendants’ photographs allegedly taken of the Premises in 2018, because they had annotations such as “Boon Lay” and “Pioneer”[note: 115] even though the Premises were at a condominium called the Caspian. The claimant said that the 260 photographs which he took of the Premises when he first took possession in 2018 showed the true condition of the Premises. The 1st defendant’s explanation was that the annotations on his photographs could have been automatically populated by his iPhone.[note: 116]

118    Apart from referring to the annotations, the claimant has put forward no other grounds as to why the defendants’ photographs cannot be of the Premises. The claimant’s photographs are also not helpful – the claimant has only referred to several photographs showing some white spots on the floor trap at the toilet[note: 117] and some marks on the parquet floor.[note: 118] He did not identify which of the other alleged defects were in fact pre-existing as of 2018.[note: 119]

119    As to whether the alleged defects existed at the Premises when the Premises were handed over, the claimant argued that:

(a)     The defendants’ photographs of the alleged defects[note: 120] were taken without the claimant’s representatives present. The 1st defendant did not highlight any defects when Ms Bay attended at the handover;

(b)     There is no evidence that the defendants’ photographs of the alleged defects[note: 121] are the same as those which the 1st defendant sent to Ms Bay’s friend[note: 122];

(c)     The defendants did not call as witnesses the other representatives who were with the 1st defendant at the handover.

120    Ms Bay had attended the handover with a male friend, Darwin. The 1st defendant only raised the issue of defects about 30 minutes after they left, by sending various photographs to Darwin, who then forwarded them to her.[note: 123] However, even if the defects had not been immediately raised, it does not mean that there were no defects. Further, it was only put to the 1st defendant that because the defects had not been pointed out to Ms Bay earlier, the photographs were “irrelevant” and “useless, in terms of evidential value.”[note: 124]

121    The claimant has not explained how the photographs sent to Darwin are different from the photographs annexed to the 1st defendant’s AEIC, or how these differences are material.

122    The claimant has only singled out some photographs showing adhesive tapes attached to a cupboard door[note: 125], to argue that these could not be defects. It is unclear which set of rectification costs these relate to. The claimant has not pointed to any other photographs or argued why the remaining alleged defects were not in fact defects.

123    I do not see the need for the defendants to call the other representatives who attended at the handover with the 1st defendant as witnesses. It is sufficient for the 1st defendant to adduce the photographs taken at the Premises. He is also in the position to give evidence as he was present at the Premises on 2 September 2022.

124    Ultimately, the claimant has no photographic evidence of the Premises to contradict those taken by the 1st defendant, which clearly show that there were defects to the Premises.

125    I therefore accept the 1st defendant’s evidence that the claimant did not hand over the Premises in like condition as at the commencement of the 1st TA.

126    However, I find that the defendants have not discharged their burden of proving that they in fact incurred all the alleged rectification costs.

127    The defendants have provided documents in respect of the costs claimed at [112(a), (b), (e) and (i)] only.

128    Even then, only the documents in support of [112 (b) and (i)] look to be receipts, being documents titled “Tax Cash Sales”[note: 126] and “Job Invoice”[note: 127] respectively.

129    The documents in respect of [112(a)[note: 128] and (e)[note: 129]] are only quotations. The quotation in support of [112(a)] is expressed to be valid for 30 days and has a section for “customer confirmation Sign & Date”, but this is left blank. As for the quotation for [112(e)], this is only for $425, and not $570 as claimed by the defendants. Even though the 1st defendant said there was a second page[note: 130], this has not been produced.

130    The 1st defendant’s explanation for the lack of receipts was that he paid in cash.[note: 131] However, most of these are not insubstantial amounts, with the highest at $2,200. The defendants have also not given any evidence to show that the work was done, or by whom. The onus is on the defendants to prove that these costs were incurred.

131    I therefore only allow the costs claimed at [112(b) and (i)], which amount to $1,276.20.

One and a half months’ rent in lieu of notice

132    The claimant’s 2 months’ notice of termination, given on 16 August 2022, would have ended on 15 October 2022. However, the claimant vacated the Premises on 2 September 2022. The defendants have a counterclaim for breach of the settlement agreement, being one and a half months’ rent in lieu of notice.

133    The claimant denied that he was in breach. He pleaded that: (1) he did not agree to serving 2 months’ notice as he did not accept the 1st defendant’s proposal that he find a replacement tenant; and (2) had the defendants entered a tenancy with Jia, that would have commenced on 3 September, and the 3rd TA would have ended before then and not October 2022.[note: 132]

134    In the claimant’s closing submissions, the claimant additionally submitted that because the defendants derailed the tenancy with Jia, the claimant was no longer bound by the “Settlement Agreement” and was entitled to terminate the 3rd TA and hand over the Premises on 2 September 2022.[note: 133] The claimant also argued that the defendants, being the party in breach of the “Settlement Agreement”, was not entitled to enforce its terms.[note: 134] The claimant argued that he would only be in breach of the requirement to give 2 months’ notice in the event this Court that there is no breach of the 3rd TA and the “Settlement Agreement” by the defendants.[note: 135]

135    It is not disputed that Ms Bay subsequently found Jia as a potential replacement tenant. Jia and the defendants executed a letter of intent dated 18 August 2022 (“LOI”), and Jia paid a good faith deposit of $4,800 to the defendants. However, Jia did not eventually lease the Premises.[note: 136] Jia commenced a Small Claims Tribunal action against the defendants to recover his deposit. Parties eventually reached a confidential settlement.[note: 137]

136    Parties disputed the reasons why Jia did not eventually lease the Premises. The claimant said it was the defendants who unilaterally changed the terms of the LOI and demanded that Jia execute the defendants’ tenancy agreement, which Jia refused. The defendants denied unilaterally changing the terms of the LOI. According to them, it was Jia who refused to sign the tenancy agreement even though the terms had been agreed. The defendants were entitled to forfeit the deposit.[note: 138]

137    Whatever the reasons were for Jia not leasing the Premises, and which party was at fault, is irrelevant.

138    I have found that there was an agreement on 16 August 2022 to terminate the 3rd TA with 2 months’ notice (see [102] to [103] above). The claimant was thus obliged to give 2 months’ notice.

139    There is nothing in the terms[note: 139] which obliged the defendants to lease the Premises to the claimant’s replacement tenant. The obligation to give 2 months’ notice is not expressed to be conditional upon the defendants first entering a tenancy with the claimant’s replacement tenant. The defendants’ failure to enter a replacement tenancy with Jia also did not prevent the claimant from giving 2 months’ notice.

140    It is also not the case that 3rd TA would definitely have ended on 2 September 2022 had the defendants enter into the replacement tenancy with Jia. I note that 3 September 2022 is only stated as a tentative start date in the LOI. The LOI also stated that the lease was subject to parties executing a tenancy agreement.[note: 140]

141    The defendants’ right to claim rental in lieu of notice is not predicated on whether they had breached the 3rd TA. These are separate agreements. I have in any case also found that there was no repudiatory breach of the 3rd TA (see [90] to [97] above).

142    I therefore find in favour of the defendants on their counterclaim for one and a half months’ rental in lieu of notice, however, given that monthly rental was $3,400, this amount should be $5,100 and not $6,800.[note: 141]

Conclusion

143    For the above reasons, I allow the defendants’ counterclaim in part. After setting off the sum of $6,376.20 against the security deposit of $7,800, the defendants are to pay the claimant $1,423.80.

144    Unless parties can agree on costs, they are to file brief costs submissions, limited to 10 pages, within 2 weeks of the date of this judgment.

[note: 1]The claimant’s closing submissions dated 15 July 2024 (“CCS”), [12].

[note: 2]CCS, [96].

[note: 3]Statement of Claim (“SOC”), [5].

[note: 4]SOC, [5(a)]; Defence to Counterclaim, [2(a)]; the claimant’s affidavit of evidence-in-chief (“AEIC”), [16] – [17]; CCS, [10].

[note: 5]Certified Transcripts (“CT”), 3 April 2024, 40:25 – 41: 10; Agreed Bundle of Documents Vol. 1 (“1AB”) 41, the defendants’ closing submissions dated 1 July 2024 (“DCS”), [31] – [34]; the defendants’ reply submissions dated 5 August 2024, [12] – [15].

[note: 6]Defence and Counterclaim, [5(ii)(g)].

[note: 7]Computing the 3-months’ cycle from the start date of the 2nd TA of 3 March 2020, servicing would be due in June, September, December 2020, March, June, September, December 2021 and March 2022.

[note: 8]Computing the 3-months’ cycle from the start date of the 1st TA of 2 February 2018, servicing would be due in May, August, November 2018, February, May, August and November 2019 and February 2020.

[note: 9]Computing the 3-months’ cycle from the start date of the 3rd TA of 3 April 2022, servicing would be due in July, October 2022, January, April, July, October 2023 and January and April 2024.

[note: 10]Being March, July and October 2022.

[note: 11]DCS, [33].

[note: 12]CT, 3 April 2024, 37:1 - 39:29.

[note: 13]Bundle of Documents (Not in the Agreed Bundle of Documents) (“DB”) 41-45; 1st defendant’s AEIC, [11].

[note: 14]Exhibit D4.

[note: 15]Being February, May, August and November 2020, February, May, August and November 2021, and February and May 2022.

[note: 16]1AB 41.

[note: 17]Exhibit D3.

[note: 18]1AB 43.

[note: 19]Clause 1 of the 2nd TA, 1AB 14; Clause 1 of the 3rd TA, 1AB 24.

[note: 20]SOC, [5(b)].

[note: 21]Defence and Counterclaim, [5(iii)].

[note: 22]Defence and Counterclaim, [5(iii)(a) – (b)].

[note: 23]The claimant’s AEIC, [18].

[note: 24]1AB 42.

[note: 25]1AB 43.

[note: 26]1AB 66- 67.

[note: 27]1AB 72-73.

[note: 28]CCS, [10(a)- [10(b)].

[note: 29]CCS, [10(c)].

[note: 30]CCS, [10(f)].

[note: 31]DCS, [30], [33], [38].

[note: 32]Exhibit D4.

[note: 33]CT, 3 April 2024, 54:27 – 55:4.

[note: 34]CCS, [10(d)].

[note: 35]CT, 1 April 2024, 36:1 – 37:16, the claimant’s AEIC, [22].

[note: 36]CT, 6 February 2024, 54:27 – 55:4; CT, 6 February 2024, 50:22 - 52:3.

[note: 37]DB 48 - 49.

[note: 38]DB 131.

[note: 39]1AB 197 -218; Ms Bay’s AEIC, [23] – [28].

[note: 40]SOC, [5(c)].

[note: 41]Defence and Counterclaim, [5(ii)(f)], [5(iv)].

[note: 42]The claimant’s AEIC, [19], CT, 6 February 2024, 54:15 – 56:5.

[note: 43]CT, 1 April 2024, 18:1 – 19:20.

[note: 44]DB 57- 68.

[note: 45]DB 47.

[note: 46]DB 48.

[note: 47]DB 58.

[note: 48]DB 58.

[note: 49]DB 62.

[note: 50]CT, 6 February 2024, 59:27 – 60: 5.

[note: 51]Message time-stamped 6:17pm, DB 62.

[note: 52]Message time-stamped 6:18pm, DB 63.

[note: 53]Message time-stamped 6:35pm and 6:36pm, DB 64.

[note: 54]DB 68.

[note: 55]CT, 2 April 2024, 22:29- 26:6.

[note: 56]CT, 6 February 2024, 60:6 – 61:8.

[note: 57]CT, 2 April 2024, 19:25 – 31 -22:6.

[note: 58]The claimant’s AEIC, [21].

[note: 59]CT, 6 February 2024, 31:11- 32:8.

[note: 60]CT, 6 February 2024, 34:20- 35:11.

[note: 61]SOC, [5(d)].

[note: 62]Defence to Counterclaim, [4].

[note: 63]CT, 6 February 2024, 35:12 – 14.

[note: 64]CT, 6 February 2024, 43:11 – 16.

[note: 65]CT, 1 April 2024, 60:14- 26.

[note: 66]Defence and Counterclaim, [5(v) – (vi)] .

[note: 67]CT, 1 April 2024, 9:24-32; 14:25-28.

[note: 68]CT, 1 April 2024, 21:28 - 23:14.

[note: 69]DB, Item 10; Exhibit D5.

[note: 70]CT, 1 April 2024, 9:14-21; 54:10 – 19.

[note: 71]CCS, [10(k)].

[note: 72]CT, 3 April 2024, 6:30 – 7:10.

[note: 73]CCS, [10(l)].

[note: 74]Defence and Counterclaim, [5(v)].

[note: 75]CT, 3 April 2024, 61:7-10.

[note: 76]CT, 3 April 2024, 8:1 –30; 9:28 - 10:4.

[note: 77]CCS, [10(n) – (o)].

[note: 78]CT, 6 February 2024, 32:9 - 34:8.

[note: 79]SOC, [5(e)].

[note: 80]Defence and Counterclaim, [5(vii)].

[note: 81]CT, 1 April 2024, 16:24 - 17:32.

[note: 82]SOC, [5(f)]; the claimant’s AEIC, [22].

[note: 83]Defence and Counterclaim, [5(viii)]

[note: 84]CT, 1 April 2014, 61:5 – 17.

[note: 85]CT, 1 April 2024, 35:27 – 37:21.

[note: 86]SOC, [5(g)], read with Defence to Counterclaim, [6].

[note: 87]Defence and Counterclaim, [5(ix)].

[note: 88]SOC, [5(h)].

[note: 89]Defence and Counterclaim, [5(x)].

[note: 90]SOC, [5(i)], read with Defence to Counterclaim, [7(a)].

[note: 91]Defence and Counterclaim, [5(xi)]; Defence to Counterclaim, [7(a)].

[note: 92]DB 49.

[note: 93]DB 52.

[note: 94]DB 58 – 82.

[note: 95]Exhibit D2.

[note: 96]The claimant’s AEIC, [32]; Ms Bay’s AEIC, [10] – [13].

[note: 97]The claimant’s AEIC, [33] – [34]; Ms Bay’s AEIC, [10] – [11].

[note: 98]Exhibit D2.

[note: 99]SOC, [7] – [8]; 1AB 83- 84.

[note: 100]Exhibits D1, D2.

[note: 101]SOC, [9].

[note: 102]CCS, [8], [11(c), 11(i), 11(j)].

[note: 103]Bundle of Affidavits of Evidence-in-Chief Vol. 1 (“1BA”) 87 – 88; Ms Bay’s AEIC, [12].

[note: 104]The claimant’s reply submissions dated 5 August 2024, [19] – [25].

[note: 105]CRS, [24].

[note: 106]Exhibit D1.

[note: 107]DCS, [81].

[note: 108]CCS, [8], [11(c), 11(i), 11(j)].

[note: 109]SOC, [12].

[note: 110]Exhibit C1.

[note: 111]Defence and Counterclaim, [21] – [22]; 1st defendant’s AEIC, [21].

[note: 112]CCS, [12(c)].

[note: 113]Defence to Counterclaim, [9].

[note: 114]CCS, [14] – [15].

[note: 115]Bundle of Affidavits of Evidence-in-Chief Vol. 2 (“2BA”) 430 – 460.

[note: 116]CT, 2 April 2024, 90:23 – 92:30.

[note: 117]Agreed Bundle of Documents Vol. 2 (“2AB”) 326.

[note: 118]2AB 403T, 403B.

[note: 119]CCS, [14(c)(vi)].

[note: 120]2BA 461 – 526; DB 176 – 241.

[note: 121]2BA 461 – 526; DB 176 – 241.

[note: 122]1BA 130 – 212.

[note: 123]Ms Bay’s AEIC, [28], Ms Bay’s AEIC, Tab-H.

[note: 124]CT, 3 April 2024, 5:1-11.

[note: 125]2AB 226, 227.

[note: 126]DB 140.

[note: 127]DB 143.

[note: 128]DB 141.

[note: 129]DB 142.

[note: 130]CT, 3 April 2024, 20: 1: 21-2.

[note: 131]CT, 3 April 2024, 18:7-21:25; 20:1- 21: 13, 25:30-26:12; 27:7-28:1.

[note: 132]Defence to Counterclaim, [8(a) - (b)].

[note: 133]CCS, [8(e)].

[note: 134]CCS, [11(j)].

[note: 135]CCS, [13].

[note: 136]SOC, [9].

[note: 137]Lim Hwee See’s AEIC.

[note: 138]Defence and Counterclaim, [9].

[note: 139]1BA 87 – 88; Ms Bay’s AEIC, [12].

[note: 140]1AB 48 – 52.

[note: 141]CCS, [13].

"},{"tags":["Criminal Procedure and Sentencing – Road Traffic Act – Section 67(1)(b) read with Section 67(2)(a) – Drink driving – Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) – Driving without due care and attention – Serious offender and Repeat offender – Sentencing – Disqualification from holding or obtaining a driving license"],"date":"2024-11-12","court":"District Court","case-number":"DAC No. 908588-2023 & 2 Ors, Magistrate's Appeal No. 9189-2024-01","title":"Public Prosecutor v Bhandari Neel Rajveer","citation":"[2024] SGDC 294","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32466-SSP.xml","counsel":["DPP Matthew Choo (Attorney-General's Chambers) for the Prosecution","Mohamed Niroze Idroos (Niroze Idroos LLC) for the Accused"],"timestamp":"2024-11-19T16:00:00Z[GMT]","coram":"Ong Hian Sun","html":"Public Prosecutor v Bhandari Neel Rajveer

Public Prosecutor v Bhandari Neel Rajveer
[2024] SGDC 294

Case Number:DAC No. 908588-2023 & 2 Ors, Magistrate's Appeal No. 9189-2024-01
Decision Date:12 November 2024
Tribunal/Court:District Court
Coram: Ong Hian Sun
Counsel Name(s): DPP Matthew Choo (Attorney-General's Chambers) for the Prosecution; Mohamed Niroze Idroos (Niroze Idroos LLC) for the Accused
Parties: Public Prosecutor — Bhandari Neel Rajveer

Criminal Procedure and Sentencing – Road Traffic Act – Section 67(1)(b) read with Section 67(2)(a) – Drink driving – Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) – Driving without due care and attention – Serious offender and Repeat offender – Sentencing – Disqualification from holding or obtaining a driving license

12 November 2024

Senior District Judge Ong Hian Sun:

Introduction

1       Mr Bhandari Neel Rajveer (“the accused”), a 49-year-old male British citizen and Singapore Permanent Resident pleaded guilty and was convicted on the following three charges:

a)     “..are charged that you, 21 September 2022 at or about 1.32 am., along lane 3 of 6 of Kampong Bahru Road at the junction of Keppel Road Singapore, whilst driving motorcar, SNC 7384P, did have so much alcohol in your body that the proportion of it in your blood, to wit, not less than 127 milligrams of alcohol in 100 millilitres of blood, exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood and you have thereby committed an offence under Section 67(1)(b) and punishable under Section 67(1) read with Section 67(2)(a) of the Road Traffic Act 1961.” (DAC 908588-2023 - “drink driving charge”).

b)     “..are charged that you, on 21 September 2022, at or about 1.32 am, along Kampong Bahru Road at the junction of Keppel Road towards Brani Terminal Gate 2, did drive motorcar bearing vehicle number SNC 7384P, on the road without due care and attention, to wit, by failing to keep a proper lookout ahead and collided with the rear of a bus bearing vehicle number PC 1994Y, and you have thereby committed an offence under Section 65(1)(a) of the Road Traffic Act 1961. And further, that you, before the commission of the said offence, has been convicted, on 3 September 2016 (vide 163065702311) in Court 25N for an offence of speeding under Section 63(4) of the Road Traffic Act (Cap. 267, Rev. Ed. 2004), which conviction has not been set aside, and you are thereby liable to be punished under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) of the Road Traffic Act 1961.” (DAC 908589-2023 – “driving without due care and attention charge”)

c)     “..are charged that you, 21 September 2022 at or about 1.32 am., along Kampong Bahru Road at the junction of Keppel Road Singapore, whilst driving motorcar, SNC 7384P, did fail to obey the traffic indicating sign by proceeding straight across the junction when the traffic light signal was showing red along Kampong Bahru Road and you have thereby committed an offence under Section 120(3) read with (r/w) Section 120(4) of the Road Traffic Act 1961 and punishable under (p/u) Section 131(2)(a) of the Road Traffic Act 1961.” (DAC 908592-2023 – “beating traffic light signal charge”)

2       The accused agreed to have two of his remaining charges, one under Section 84(1)(a) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act 1961 and one under Section 84(3) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act to be taken into consideration for the purpose of sentencing.

3       I sentenced him to a fine of $5000 and disqualification from driving all classes of vehicles for a period of 30 months for the drink driving charge, 3 weeks’ imprisonment and disqualification from driving all classes of vehicles for a period of 2 years for the driving without due care and attention charge, and $1000 fine for the beating traffic light signal charge.

4       Dissatisfied with my decision, the accused filed an appeal against the sentence and the order of disqualification. He has been granted stay of execution for the sentence and the order of disqualification pending the outcome of his appeal. He has been released on bail pending his appeal.

5       I hereby set out the reasons for my decision.

Punishment Prescribed by Law

6       The punishment prescribed under s 67(1) r/w s 67(2)(a) of the Road Traffic Act 1961 for a first-time drink driving offender under s 67(1)(b) is a fine not less than $2000 and not more than $10000 or a term of imprisonment not exceeding 12 months, or with both and a disqualification order of not less than 2 years.

7       The punishment prescribed for an offence of driving without due care and attention for a serious and repeat offender under Section 65(1)(a) punishable under Section 65(5)(c) read with Section 65(5)(b) and Section 65(6)(i) of the Road Traffic Act 1961 is a fine of not less than $2000 and not more than $13,000 [combining the fine not exceeding $3000 in Section 65(5)(b) and the fine not exceeding $10,000 in Section 65(5)(c)] or a term of imprisonment not exceeding 24 months or both. Further, pursuant to Section 65(6)(i) of the Road Traffic Act 1961, there is a mandatory disqualification order of at least 2 years.

8       The punishment prescribed for an offence of beating the traffic light signal under Section 120(3) read with Section 120(4) of the Road Traffic Act 1961 and punishable under Section 131(2)(a) of the Road Traffic Act 1961 is a fine not exceeding $1,000 or to imprisonment for a term not exceeding 3 months. Further, Section 42(1) of the Road Traffic Act, Cap 276 provides that a court before which a person was convicted of any offence in connection with the driving of a motor vehicle, could also order that person to be disqualified from holding or obtaining a driving license for life or for such period as the court might think fit.

Statement of Facts

9       The salient parts of the Statement of Facts (SOF) which the accused admitted without qualification are as follows.

10     The accused is Bhandari Neel Rajveer, a 49-year-old male British citizen and Singapore Permanent Resident.

11     On 21 September 2022, the Singapore Police Force received a call with the following message “There is a vehicle believed to be involved in a hit and run. The driver believed to be drunk. The vehicle ended up at our place. The incident location provided was Brani Port Terminal Gate 2, 2 Brani Terminal Avenue, Singapore 098324, Singapore (“Brani Terminal Gate 2”).

12     On 20 September 2022, at about 9:30 pm, the accused attended a company function at a club located at Clarke Quay. There, the accused consumed three units of whisky. The accused left the club before 1:32 am on 21 September 2022 to return home at Siglap Road. The accused drove his motor car bearing vehicle number SNC 7384P.

13     On route home, at about 1:32 am, the accused was driving along Kampong Bahru Road at the junction of Keppel Road, towards Brani Terminal Gate 2. The accused was traveling on lane three of the six-lane carriageway.

14     At the junction, the traffic light was red and traffic had formed in accordance with the directional traffic signal. The accused, without due care and attention, failed to keep a proper lookout and failed to brake in time. He caused a rear-end collision with the stationary vehicle that had formed up in front, being a bus bearing vehicle number PC 1994U.

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15     The bus driver disembarked from his vehicle and approached the accused’s car. As the bus driver approached the accused’s car and tapped on the car, instead of providing his particulars and rendering assistance, the accused reversed his vehicle, signalled and switched to the right lane (lane four), and drove straight towards Brani Terminal Gate 2.[note: 1] The accused drove straight from a right-turn only lane and while the traffic light was red. The accused failed to obey the traffic sign by failing to comply with the traffic signal light that required the accused to not proceed forward.

16     At the time of accident, the weather was clear, the road surface was dry and the traffic volume was light.

17     The accused was stopped by the security personnel at Brani Terminal Gate 2. The bus driver followed the accused towards Brani Terminal Gate 2 after the lights turned green in the bus’s favour.

18     At about 2:04 am, Senior Staff Sergeant Abdul Hakim Abdul Rahim (“SSGT Abdul”) arrived on scene and attended to the incident. SSGT Abdul observed the accused to reek of alcohol. SSGT Abdul administered a preliminary breathalyser test, and the accused failed the breathalyser test. He was arrested and escorted to the Traffic Police Headquarters and asked to provide a specimen of his breath for an analysis using the Breath Analysis Device (“BAD”). However, the accused was too drowsy to provide a specimen for a test conducted using the BAD. The accused consented to providing to a registered medical practitioner, a specimen of his blood for a laboratory test.

19     On 5 October 2022, the Analytical Toxicology Laboratory of the Health Sciences Authorities issued a report stating that upon analysis of the accused’s blood sample submitted, the accused’s blood ethanol (alcohol) was analysed to be 127 mg/100 ml, which exceeded the prescribed limit of 80 mg/100ml.

20     On 15 November 2022, the accused made full restitution of S$1,800 for the damage caused to the bus.

21     By virtue of the foregoing, the accused has thereby committed:

(a)     An offence under s 67(1)(b) and punishable under s 67(1) read with s 67(2)(a) of the Road Traffic Act 1961.

(b)     An offence under s 65(1)(a) of the Road Traffic Act 1961. Further, the accused was, before the commission of the offence, convicted on 3 September 2016 (vide 163065702311) in Court 25N for an offence under s 63(4) of the Road Traffic Act (Cap. 267, Rev. Ed. 2004). He is thereby liable to be punished under s 65(5)(c) read with s 65(5)(b) and s 65(6)(i) of the Road Traffic Act 1961.

(c)     An offence under s 120(3) read with s 120(4) and punishable under s 131(2)(a) of the Road Traffic Act 1961.

Prosecution’s submissions on sentence

22     With respect to the drink driving charge, the Prosecution referred to the sentencing framework in Rafael Voltaire Alzate v PP [2022] 3 SLR 993 at [31] (“Rafael Voltaire”) and urged this court not to accept Defence’s forensic report which was based primarily on the accused’s self-reporting of prior consumption of ayurvedic medicines.

23     In the alternative, the Prosecution argued that even if the Defence’s forensic report were to be accepted, the variance in the supposed blood alcohol level excluding the supposed effects attributable to the consumption of these medicines is not materially different from that stated in the Health Sciences Authorities’ (“HSA”) report.

24     The Defence’s forensic report stated that the blood alcohol level attributable to the accused’s consumption of alcohol is between 119.57mg and 122.41 mg/100 ml, being between 52 μg and 54 μg/100 ml of breath. This would have placed the accused in the upper end of Band 1 of the indicative sentencing range of at least $2000 to $4000 fine and a disqualification order for a period of 24 to 30 months under the Rafael Voltaire framework.

25     The HSA report found that the accused’s blood alcohol level to be 127 mg/100 ml being equivalent to about 56 μg/100 ml of breath which would have placed the accused in lower end of Band 2 of the Rafael Voltaire framework with an indicative sentencing range of at least $4000 to $6000 fine and a disqualification order for a period of 30 to 36 months.

26     The Prosecution further submitted that that placement of whether the accused’s alcohol level should be under Band 1 or Band 2 of the Rafael Voltaire framework is academic since parties are aligned on quantum of fine $5,000 to be imposed for the drink driving charge under s 67(1)(b) of the Road Traffic Act 1961 (vide DAC-908588- 2023).

27     The Prosecution argued that the Defence’s submission for a disqualification period of 24 months’ is clearly inadequate as it would fall on the lower end of the range provided under Band 1 of the framework.

28     The Prosecution was of the view that a Newton hearing under 228(5) of the Criminal Procedure Code is not necessary to determine the level of alcohol found in the accused.

29     On the driving without due care and attention charge, the Prosecution referred to the case of PP v Cheng Chang Tong [2023] 5SLR 1170 at [42], where the High Court held that the sentencing framework in the High Court decision in Wu Zhi Yong v PP [2022] 4 SLR 5873 provides a useful guidance in sentencing for offences of driving without due care and attention. Further, the Prosecution referred to a recent case in Public Prosecutor v Ngo Kieng Hui (Wu Quonghui) [2024] SGDC 69 (which is pending the outcome of the appeal) to argue that the custodial threshold has been crossed and a sentence of 3 to 4 weeks’ imprisonment and the mandatory minimum disqualification order of 2 years should be imposed.

Defence’s submission on sentence and Migation

30     The accused claimed that he was reluctant to consume alcohol, and his colleagues had added liquor to his glass without his knowledge and that he had consumed ayurvedic medicines prior to the consumption of alcohol at the company party.

31     The Defence tendered a forensic report stating that the accused’s blood alcohol level attributable to the consumption of alcohol at the party is somewhere between 119.57 mg to 122.41 mg per 100 ml of blood, which is equivalent to 52 µg to 54 µg per 100 ml of breath. The Defence is also of the view that a Newton hearing is not necessary.

32     Relying on the Rafael Voltaire framework, the Defence submitted that the alcohol level of 54 µg per 100 ml of breath falls within the Band 1 of Rafael Voltaire and proposed that a fine of $5000 and disqualification of 24 months would be appropriate.

33     As for the driving without due care and attention charge, the Defence also accepted that the Wu Zhi Yong framework is applicable to offences under section 65 of the RTA citing the case of Cheng Chang Tong and argued that the seriousness of the offence is at the lower level of Band 1 and there are no offence specific aggravating factors [36] of Wu Zhi Yong or they are present only to a limited extent.

34     Defence submitted that there was no serious potential harm and danger at the time of the offence as the traffic volume was light and no pedestrians were reasonably expected to be on the road at that time. In addition, there was no serious property damage as the damage to the rear middle bumper was repaired at a cost of $1800 to which the accused has paid the full restitution to the bus company.

35     The accused also claimed that he had taken two ayurvedic medicines prior to his consumption of the whiskey and the Defence contended that his alcohol level based on the Defence forensic report should be 54 µg per 100 ml of breath which falls within Band 1 of Rafael Voltaire.

36     The accused also claimed that he was intending to charge his EV car at Vivocity before returning home, after the office party where he consumed 3 units of whiskey. After the accident, he alleged that he has no intention to leave the scene of the accident as he observed an open area beyond Keppel Road and perceived it to be safe location to stop his car to speak to the driver of the bus.

37     The Defence contended that his speeding offence antecedent was dated, and for which he was fined $900 by the court. Accused further contended that the speeding antecedent was committed under strong mitigating circumstances as he was rushing home to attend to his younger son.

38     The Defence contended that the prescribed fine under Band 1 of the Wu Zhi Yong framework of a sufficiently high fine would achieve the objective of deterrence without crossing the custodial threshold of up to one month imprisonment prescribed under Band 1 of the Wu Zhi Yong framework.

Decision

39     Both the Prosecution and Defence, in reference to the Rafael Voltaire framework, agree in relation to the quantum of the fine of $5000 for the drink driving charge. They differ only in their proposed disqualification periods.

40     The sentencing framework as established by Sundaresh Menon CJ in Rafael Voltaire for first time drink drivers with the respective indicative starting point based on the level of alcohol is set out at below.

Level of alcohol (µg per 100ml of breath)

Range of fines

Range of disqualification

36-54

$2,000-$4,000

24-30 months

55-69

$4,000-$6,000

30-36 months

70-89

$6,000-$8,000

36-48 months

≥90

$8,000-$10,000

48-60 months



41     Defence is proposing the mandatory minimum of 24 months’ imprisonment and the DPP is proposing a higher DQ period of 30 to 36 months’ imprisonment. The Prosecution’s submission fits within the range set out in the sentencing framework in Rafael Voltaire. In Rafael Voltaire at [31], the High Court set out an indicative sentencing range of least $4000-$6,000 fine and a disqualification order for a period of 30 to 36 months where the alcohol level is at Band 2 (based on the HSA report the accused’s blood alcohol level is 127 mg/100 ml which is equivalent to 56 μg per 100ml of breath).

42     I am not minded to give any weight to the Defence’s forensic report as it was based solely from the self-reporting by the accused and I agree with the Prosecution that it was tendered to downplay his culpability when the responsible thing for him to do was not to drive when he knew that he was under the influence of drink.

43     In my view there was no reasonable excuse for the accused to drive when he was clearly not in the fit state to drive as evidenced from [18] above whereby SSGT Abdul found the accused to reek of alcohol at the scene and after he was brought back to the police station, he was too drowsy to provide a specimen for the BAD test.

44     As accused was attending a company party, he could have found alternative arrangement for someone to drive him home or find alternative means to reach home instead of attempting to drive home on his own to Siglap Road with the view along the way to drive to Vivocity (which is in an opposite direction to his way home) to recharge his electric vehicle according to his mitigation plea.

45     For the above reasons, I find that the Prosecution’s submission on the drink driving charge to be appropriate and proportionate to his culpability.

46     For the driving without due care and attention charge, it is appropriate to refer to the decision in PP v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng”) at [42], where the High Court held that the sentencing framework set out in Wu Zhi Yong v PP [2022] 4 SLR 5873 at [39] provides a useful guidance in sentencing for offences of driving without due care and attention, notwithstanding the fact that the framework was promulgated for offences under s 64(2C) of the RTA.

47     In Wu Zhi Yong, Menon CJ had prescribed the sentencing approach of analysing firstly the offence-specific factors before arriving at the the following sentencing band as set out below:

Band

Degree of seriousness

Sentencing range

1

Lower level of seriousness with no offence-specific aggravating factors present or where they are present only to a limited extent. The offender’s blood alcohol level is also likely to be at the lowest or second lowest bands in the framework set out in Rafael Voltaire.

A fine of between $2,000 and $15,000 and/or up to one month’s imprisonment and a disqualification period of two to three years.

2

Higher level of seriousness and would usually contain two or more offence-specific aggravating factors. In these cases, the level of culpability and the blood alcohol level will typically both be on the higher side. Where an offender’s blood alcohol level is in the highest or second highest band of the framework in Rafael Voltaire, the case is likely to fall at least within Band 2.

Between one month’s and one year’s imprisonment and a disqualification period of three to four years.

3

The most serious cases of reckless or dangerous driving whilst under the influence of drink. In these cases, there will be multiple aggravating factors suggesting higher levels of culpability and higher alcohol levels.

Between one year’s and

two years’ imprisonment

and a disqualification

period of four to five

years.



48     Both parties refer to the framework of Wu Zhi Yong v PP [2022] 4 SLR 5873 as a guide with the Prosecution seeking 3 to 4 weeks’ imprisonment and DQ for a period of 2 years and the Defence seeking a fine of $7500 and DQ for a period of 2 years for the driving without due care and attention charge.

49     Pursuant to s 64(8) of the RTA, as the accused has also been charged with an offence under s 67 of the RTA, the accused is considered a serious offender. As the accused has a prior conviction for the offence of speeding that has not been set aside, the accused is considered a repeat offender. Therefore, the accused would be considered both a serious offender under s 65(5)(c) and a repeat offender under s 65(5)(b) of the RTA. 

50     Given the accused’s status as a serious offender and repeat offender, the accused would be liable to the sentence set out in s 65(5)(b) of RTA to a “fine not exceeding $3,000 or to imprisonment for a term not exceeding 12 months or to both”. He is additionally liable under s 65(5)(c) of the RTA to a “fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term not exceeding 12 months or to both”. From the above, the maximum sentence would be a fine of $13,000 and an imprisonment term of 24 months. Further, pursuant to s 65(6)(i) of the RTA, the court must order that the accused be disqualified from holding or obtaining a driving licence for a period of at least 2 years for all classes from the date of conviction or release (if imprisonment imposed).

51     Under the Wu Zhi Yong sentencing framework approach, the first step is to consider the offence-specific factors which relate to the manner and the mode by which the offence was committed as well as the harm caused and identify the appropriate sentencing band. The second step is to consider the aggravating and mitigating factors that are personal to the offender (Wu Zhi Yong at [30] and [48]).

Step 1: Consider the offence-specific factors

Manner and mode of offence and offender’s conduct following the offence or attempt to evade arrest

52     In the present case, the accused had consumed about three units of whiskey at a club and drove a car after he had his last drink. The accused left the club at Clarke Quay after drinking to return home at Siglap Road.

53     Instead of taking a direct route home from Clarke Quay, the accused claimed that he was driving in the direction of Vivocity to charge his EV car before returning home. When the traffic light signal turned red, the accused failed to brake in time and caused a rear-end collision with the bus in front of his car.

54     At the time of the accident, both the bus and the accused’s car were on the third lane which is a right-turn only lane. When the bus driver approached the accused’s car, the accused reversed his vehicle, signalled, switched to another right-turn only lane and drove straight towards Brani Terminal Gate 2. The accused drove straight from a right-turn only lane and while the traffic light was red. The accused had to be stopped by the security personnel at Brani Terminal. The accused is being charged separately under s 120(4) RTA for failing to obey the traffic light.

55     I did not accept the accused’s explanation that he intended to drive forward to stop at a convenient place before discussing with the bus driver. It was clearly an afterthought. There was no reason for him to reverse his car to avoid communicating with the bus driver who had already approached his car and tapping on his car to speak to the accused. The accused drove straight against the traffic light signal from a right-turn only lane risking injuring the bus driver and risking causing any major accident with any other potential vehicle that may be travelling from the direction of Keppel Road to Telok Blangah Road towards Vivocity in the green light direction.

56     I find that the accused’s conduct of failing to stop after the collision to render assistance to the bus driver and his continuing to commit a further offence as aggravating.  Further, the accused had driven about 7 kilometres, a significant distance in an inebriated state before the collision occurred.

Alcohol level

57     As held at [37] of Wu Zhi Yong and affirmed in Chen Chang Tong at [50], the level of alcohol found in the accused’s breath is critical in determining the appropriate sentencing band for the offence. The accused’s breath alcohol level is in Band 2 of the Rafael Voltaire framework, the second lowest band.

58     The property damage to the bus is not insignificant as the repair cost is $1800. It was fortuitous that the accused collided into a bigger vehicle where the damage was mitigated. In terms of potential harm and danger, notwithstanding that the traffic volume was light at 1.32 am, in my view it was fortuitous that no serious accident occurred when accused drove for more than 7 km in an intoxicated state before this incident occurred.

59     In Public Prosecutor v Ngo Kieng Hui (Wu Quonghui) [2024] SGDC 69 (case is pending the outcome of appeal), the offender similarly pleaded guilty to two charges under the RTA for drink driving and driving without due care and attention. Two other charges under the RTA were taken into consideration for the purpose of sentencing. The offender was found with 83 microgrammes of alcohol in 100 ml of breath which fell within Band 3 of the Rafael Voltaire sentencing framework. With respect to the drink driving charge, the offender was sentenced to a fine of $7,000 in default 20 days’ imprisonment and a disqualification from holding or obtaining all classes of driving licences for 42 months.

60     With respect to the driving without due care and attention charge, the court considered the offender’s high breath alcohol level, that there was some degree of potential harm to other road users as the accident had occurred in a residential area, the actual property damage caused as the LTA sign was uprooted and the offender’s motorcar sustained some damages and that the offender did not remain at the scene after the accident, in finding that the case fell within Band 2 of the Wu Zhi Yong framework and an indicative starting point of one month’s imprisonment would be appropriate.

61     In terms of offender-specific factors, the court noted that the offender had a relatively clean driving record and had pleaded guilty. However, the court also considered that the offender had not made any restitution and faced two TIC charges under the RTA. Considering these factors, the court calibrated the starting point of one month’s imprisonment downwards to two weeks’ imprisonment, being the minimum within Band 2. The court was also of the view that a period of disqualification of 30 months for all classes of vehicles from release was appropriate after having regard to both the offence-specific and offender-specific factors.

62     In the present case, considering the offence-specific aggravating factors, I am of the view that this case falls within the highest end of Band 1in Wu Zhi Yong. I find that a starting point of one month imprisonment would be appropriate.

Step 2: Consider the offender-specific factors

63     The accused was caught red-handed after his unsuccessful attempt to escape from the scene and he was stopped by the security personnel at the Brani Terminal Gate when he was clearly quite intoxicated to the point that he was unable to provide his breath for the test when he was brought back to the police station. As he was caught red-handed on the scene, I did not give much weight to his plea of guilt.

64     I noted that the accused had made restitution for the property damage caused. I also noted the Defence’s submission that the accused’s previous conviction for speeding occurred under special circumstances where his son had earlier suffered life-threatening and uncontrolled seizures and he was rushing home to administer medication to his son. Notwithstanding that this offence occurred 8 years ago, it did not detract from the fact that he was considered a repeat offender.

65     The accused had two remaining charges under the RTA, namely, one under Section 84(1)(a) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act 1961 and one under Section 84(3) r/w Section 84(7) p/u Section 131(2)(a) Road Traffic Act to be taken into consideration for the purpose of sentencing

66     Considering both the mitigating and aggravating factors, a downwards adjustment to 3 weeks’ imprisonment would be appropriate.

67     As for the disqualification period, I am of the view that the mandatory minimum of 2 years would suffice.

68     I was also of the view that hardship caused to the accused arising from his custodial term and the disqualification order was not a mitigating factor as this was brought about by himself.

Conclusion

69     For the reasons set out above, I sentenced the accused to a fine of $5000 (in default 2 weeks’ imprisonment) and disqualification from driving all classes of vehicles for a period of 30 months for the drink driving charge, 3 weeks’ imprisonment and disqualification from driving all classes of vehicles for a period of 2 years for the driving without due care and attention charge, and $1000 fine (in default 3 days’ imprisonment) for the beating traffic light signal charge.

[note: 1]Forming the basis of the 3rd (DAC-908590-2023) and 4th (DAC-908591-2023) charge, that is taken into consideration for the purposes of sentencing.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20 and s 50(b) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – First offender contravened its statutory duty to ensure so far as reasonably practicable that the formwork materials that it supplied were safe when used","Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20, s 48(1) and s 50(a) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Second offender a director of a company that supplied defective formwork materials"],"date":"2024-10-11","court":"District Court","case-number":"DSC 900912 of 2021, Magistrates' Appeal No. 9202 of 2024-01","title":"Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another","citation":"[2024] SGDC 148","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32317-SSP.xml","counsel":["Delvinder Singh and Nur Ishameena for the Prosecution","Lee Wei Yung and Harpal Singh (Tito Isaac & Co) for the Accused Persons."],"timestamp":"2024-11-19T16:00:00Z[GMT]","coram":"Kow Keng Siong","html":"Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another

Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd and another
[2024] SGDC 148

Case Number:DSC 900912 of 2021, Magistrates' Appeal No. 9202 of 2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Delvinder Singh and Nur Ishameena for the Prosecution; Lee Wei Yung and Harpal Singh (Tito Isaac & Co) for the Accused Persons.
Parties: Public Prosecutor — Formwork Hire (S.E.A.) Pte Ltd and another

Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20 and s 50(b) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – First offender contravened its statutory duty to ensure so far as reasonably practicable that the formwork materials that it supplied were safe when used

Criminal Procedure and Sentencing – Sentencing – Sentencing approach – Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Section 16(1)(b) read with s 20, s 48(1) and s 50(a) of Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Second offender a director of a company that supplied defective formwork materials

11 October 2024

District Judge Kow Keng Siong:

Introduction

1       Section 16(1)(b) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) imposes a duty on companies to ensure that the equipment which they supply is safe when properly used. Under s 48(1) of the same Act, a director can be held criminally liable for his company’s breach of s 16(1)(b). What principles are applicable when imposing sentences in connection with offences under s 16(1)(b) and s 48(1)? These are the issues raised in the present case.

2       By way of background –

(a)     I had convicted Formwork Hire (S.E.A.) Pte Ltd (“1st Accused”) after a trial of an offence under s 16(1)(b) read with s 20, and punishable under s 50(b) of the WSHA (“s 16(1)(b) offence”). This conviction stemmed from the 1st Accused’s failure to ensure that a table formwork system which it had supplied to a worksite was safe when properly used. This failure eventually contributed to the collapse of a formwork structure erected with the equipment.

(b)     At the same trial, I had also convicted Yeo Teck Soon (“2nd Accused”), a director of the 1st Accused, of an offence under s 16(1)(b) read with s 20 and s 48(1), and punishable under s 50(a) of the WSHA (“s 48 offence”). This conviction arose by virtue of the 1st Accused’s commission of the s 16(1)(b) offence.

(c)     My reasons for the above convictions have been set out in Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd & Anor [2024] SGDC 28 (“Conviction GD”).

3       Following the convictions, the parties’ provided their sentencing recommendations for the 1st Accused and 2nd Accused (collectively “Accused Persons”). These recommendations, as well as my eventual sentences, are as follows:

 

Prosecution’s recommendation

Defence’s recommendation

Sentence

1st Accused

$280,000 – $300,000

Harm – High

Culpability – Moderate

Fine

Harm – Low

Culpability – Low

$280,000

Harm – High

Culpability – Moderate

2nd Accused

6 – 8 months

Harm – High

Culpability – Moderate

Fine

Harm – Low

Culpability – Low

$150,000 i/d 150 days

Harm – High

Culpability – Low



4       In this judgement, I will explain the sentencing approach which I had adopted to derive the Accused Persons’ sentences.

1st Accused’s sentence

Applicable principles

Preliminary observation

5       I begin with the 1st Accused’s sentence. At the outset, it bears highlighting that there is no reported sentencing decision for a s 16(1)(b) offence.

Sentencing approach for WSHA offences generally

6       As such, I approached the sentencing of the 1st Accused’s offence from first principles. In this regard, I noted the following.

7        First, when imposing sentences for the WSHA offences, our courts have typically placed an equal emphasis on two offence-specific sentencing factors, namely, harm and culpability: Koh Lian Kok v Public Prosecutor [2024] SGHC 132 (“Koh Lian Kok”) at [1], [58] – [62].

8        Second, our courts have consistently adopted a two-stage sentencing approach for WSHA offences: see e.g., Public Prosecutor v Manta Equipment (S) Pte Ltd [2023] 3 SLR 327 (“Manta Equipment”) at [20] (offence under s 12(1) of the WSHA); Koh Lian Kok at [79] (offence under s 12(2) of the WSHA); Public Prosecutor v Yeduvaka Mali Naidu [2023] SLR 988 at [24] (offence under s 15(3) of the WSHA); and Mao Xuezhong v Public Prosecutor [2020] 5 SLR 580 at [64] (offence under s 15(3A) of the WSHA).

9       The two-stage sentencing approach consists of the following:

(a)      First stage – Levels of harm and culpability. At the first stage, the court determines the level of harm posed by the offence and the level of the offender’s culpability for the offence.

(i)       When evaluating the level of harm, the following factors are typically considered: (1) The seriousness of the harm risked; (2) The likelihood of that harm arising; (3) The number of people likely to be exposed to the risk of the harm; and (4) The actual harm that is occasioned. Considerations (1), (2) and (3) relate to the level of potential harm arising from a s 16(1)(b) offence: Koh Lian Kok at [79(b)], Neo Ah Luan v Public Prosecutor [2018] 5 SLR 1153 at [67], and Chen Song v Public Prosecutor [2024] SGHC 129 at [130].

(ii)       When evaluating the level of culpability, the following factors are considered: (1) The number of breaches; (2) The nature of the breaches; (3) The seriousness of the breaches (i.e., whether they are a minor departure from the established procedure or whether they are a complete disregard of the procedures); (4) Whether the breaches are systemic or are part of an isolated incident; and (5) Whether the breaches are intentional, rash, or negligent: Koh Lian Kok at [79(c)].

(b)      First stage – Sentencing matrix – Starting point sentence. After evaluating the levels of harm and culpability, the court will then derive a starting point sentence based on a matrix of indicative sentences.

(i)       For an example of such a matrix that is applicable to a breach of s 12(2) by a natural person, see the following from Koh Lian Kok at [79]:

 

Culpability

Harm

 

Low

Moderate

High

Low

Fine up to $75,000

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

Moderate

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

High

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

More than 12 months and up to 24 months’ imprisonment



(ii)       For an example of a sentencing matrix that is applicable to a breach of s 12(1) by a legal person, see the following from Manta Equipment at [28]:

 

Culpability

Harm

 

Low

Moderate

High

High

$150,000 to $225,000

$225,000 to $300,000

$300,000 to $500,000

Moderate

$75,000 to $150,000

$150,000 to $225,000

$225,000 to $300,000

Low

Up to $75,000

$75,000 to $150,000

$150,000 to $225,000



(c)      Second stage. At the second stage, the court will adjust the starting point sentence by considering the offender-specific aggravating and mitigating factors that are present in the case: Koh Lian Kok at [79(e)] and [79(f)].

(i)       The aggravating factors include the following: (1) The offender’s lack of remorse; (2) The presence of relevant antecedents; and (3) Offences taken into consideration for the purpose of sentencing.

(ii)       The mitigating factors include the following: (1) Voluntary steps taken to remedy the problem; (2) High level of co-operation provided to the investigating authorities beyond that which is normally expected; (3) Self-reporting and acceptance of responsibility; and (4) Timely plea of guilt.

Two-stage sentencing approach is applicable to a s 16(1)(b) offence

10     In my view, the two-stage sentencing approach can be applied to a s 16(1)(b) offence. My reasons are as follows.

(a)      First, the sentencing objectives for a s 16(1)(b) offence are the same as those for the other WSHA offences in [8] above (“other WSHA offences”) – i.e., deterrence and retribution.

(b)      Second, the sentencing factors for the other WSHA offences in [9(a)] above are also applicable to a s 16(1)(b) offence.

(c)      Third, after considering the legislative intent behind WSHA, the High Court has held that the two-stage sentencing approach “should in principle apply to all Part 4 offences punishable under s 50 of the [WSHA]”: Manta Equipment at [39]. A s 16(1)(b) offence is an offence under Part 4.

(d)      Finally, the parties had adopted the two-stage sentencing approach when making their sentencing recommendations.[note: 1]

Sentencing matrices

11     The next issue is what sentencing tariffs are applicable to a s 16(1)(b) offence. Regarding this, I noted that the sentencing matrices in [9(b)] above had been specifically formulated for other WSHA offences – and not for a s 16(1)(b) offence. As such, I am not bound to apply them when sentencing the 1st Accused. That said, in the absence of guidance from the High Court, I found these matrices to be useful reference points for sentencing a s 16(1)(b) offence. After all, these matrices are based on s 50 of the WSHA – which is the same punishment provision in the present case.

Applying the principles

Level of harm

12     Applying the two-stage sentencing approach to the present case, I am of the view that the level of potential harm arising from the 1st Accused’s offence is “High”.[note: 2] My reasons are as follows.

(a)      Seriousness of the harm risked. The 1st Accused had supplied materials which contained numerous serious defects: see [15(a)] below. This is highly dangerous given that the Supplied Materials were to be used to construct a ramp and driveway of a nine-storey warehouse development.[note: 3]

(b)      Likelihood of harm arising. There is a real likelihood that a formwork structure constructed with such defective materials might collapse, e.g., due to the materials’ inability to bear heavy loads and to withstand high levels of stress. Indeed, this was precisely what had happened – the defects in the Supplied Materials had contributed to the collapse of a table formwork structure on 2 April 2016.[note: 4] Based on the photos, the collapse was extensive.[note: 5]

(c)      Number of people exposed to the risk of the harm. At the time of the collapse, a team of at least five workers were doing casting work on the section next to the Collapsed Formwork.[note: 6] Anyone of them could have been seriously injured by the collapse.

(d)      Actual harm that materialised. Fortunately, there was only one casualty. A worker fell from the Collapsed Formwork and had to be sent to hospital. He was discharged from hospital two days later and given 14 days’ medical leave. (It is unclear from the evidence what was the nature and extent of the worker’s injuries.)

13     At this juncture, I wish to respond to the Defence’s submission that the level of harm should instead be classified as “Low”. This submission is based on the following:[note: 7]

(a)     The 1st Accused did not have control and supervision over the Worksite where the Supplied Materials were erected and kept.

(b)     There were safety lapses by other parties at the Worksite which had been contributed to the collapse.

(c)     There was no evidence that the injured worker was wearing safety harness at the material time.

14     I rejected the above submission.

(a)      First, the matters raised by the 1st Accused are not relevant to the level of harm posed by their offence. At best, these matters are relevant to the level of the 1st Accused’s culpability.

(b)      Second, it bears emphasis that the 1st Accused had been convicted on the basis that (i) it had supplied formwork materials which were not safe when properly used, and (ii) such materials had contributed to the collapse of a formwork structure. The 1st Accused was not convicted of having caused either the collapse or the worker’s injuries.

Level of culpability

15     Next, I turn to the level of the 1st Accused’s culpability. In my view, this should fall within the “Moderate” range. My reasons are as follows.

(a)      Number and seriousness of the breaches. The Supplied Materials had several serious defects:[note: 8]

(i)       The weld joints of the scaffold frames had numerous weld defects such as porosities, slag inclusions, wide root gap, and lack of fusion.

(ii)       The weld joints of the scaffold frames and spigots had cracks which were pre-existing and due to corrosion fatigue.

(iii)       Some scaffold frames had severe corrosion with significant wall thinning to perforation.

(iv)       Most of the scaffold frames were not galvanised and had corroded surfaces.

(v)       Corroded surfaces were painted over without any due consideration for risk assessment or inspection.

(vi)       The connecting spigots had varying amount of pearlite in the microstructures and hardness strengths.

(b)      Nature of the breaches. I agreed with the Prosecution that[note: 9] –

The breaches go towards the very nature of FHS’s business activity. When hired to supply formwork parts, the basic expectation would be to ensure that the parts and components were safe, and without risk to health. This was also the fundamental failure of the charge that FHS had been convicted of. As these formwork materials and components were to be used to construct support structures, the structural integrity must not be compromised in any way. This was crucial to ensure the safety and health of the workers carrying out work around the formwork structure.

[emphasis in original text]

(c)      Whether the breaches are systemic/isolated. I also agreed with the Prosecution that the 1st Accused’s safety lapses were not “isolated”.[note: 10]

(i)       I say this because the Supplied Materials had been delivered over a long period of time (between 3 to 30 March 2016) via numerous deliveries (33 delivery orders). Furthermore, it was not disputed that for 18 of these deliveries, the 1st Accused’s production supervisor did not check the materials before certifying them to be in order: Conviction GD at [6] and [51(b)]. Finally, investigations conducted after the collapse revealed that an extensive number of the materials were corroded.

(ii)       That said, I would disagree with the Prosecution’s submission that the 1st Accused was not concerned as to whether the materials were safe for use. I had found that the 1st Accused did put in place measures to check for – and to prevent – defective formwork materials from being supplied: see Conviction GD at [45] and [46]. Unfortunately, due to lack of effective supervision, these measures had not been dutifully followed by its workers at the material time: Conviction GD at [48] to [52].

(d)      Whether the breaches are intentional, rash, or negligent.

(i)       The Prosecution submitted that the 1st Accused had “intentionally” breached s 16(1)(b) as it had “knowingly painted over the corroded parts instead of testing if the materials were of adequate strength before supplying these formwork materials”. According to the Prosecution, the painting over of the corroded parts was akin to a “deliberate concealment” of the 1st Accused breach of s 16(1)(b).[note: 11]

(ii)       Presumably, the Prosecution was relying on evidence which showed that the frames of the Collapsed Formwork had corroded and pitted surfaces which were “obvious on inspection”, and that these surfaces had been painted over: see Conviction GD at [8(e)], [51(a)].

(iii)       If so, then I am of the view that such evidence did not conclusively prove that at the time of the deliveries, the 1st Accused and their workers had “intentionally” supplied defective materials. This is because the same evidence in (ii) above could also support the inference that the 1st Accused and their workers had wrongly assessed the materials to have only minor defects and thus could be re-used: see Conviction GD at [52] – esp. [52(c)].

(iv)       It is unclear whether the defects in the materials and the risks of using them (1) were within the subjective consciousness of the 1st Accused and their workers, or (2) were so obvious that a reasonable person would have to have paused and considered the matter, and would not have ignored it: Jali bin Mohd Yunos v Public Prosecutor [2014] 4 SLR 1059 at [21], [22], [28], [29] and [32]. Given the state of the evidence, I decided to give the 1st Accused the benefit of doubt and found that the breaches were committed negligently instead of rashly.

Starting point sentence

16     Based on my assessment that the levels of harm and culpability is “High” and “Moderate” respectively, I agreed with the Prosecution that the starting point sentence for the 1st Accused’s offence should be $280,000.

Adjustment for offender-specific factors

17     I next considered whether the starting point sentence ought to be adjusted on account of offender-specific factors relating to the 1st Accused.

18     In this regard, I noted the following submissions by the 1st Accused:[note: 12]

(a)     Until the collapse, the 1st Accused had been in the business of supplying formwork materials for more than 23 years without any accident (“1st Consideration”).

(b)     The 1st Accused had received several business industry awards from 2009 to 2016. The most recent being the 2016 Enterprise 50 Award (“2nd Consideration”).

(c)     As a result of the collapse, the 1st Accused had lost local contracts (“3rd Consideration”).

19     I am of the view that the above considerations did not warrant a reduction in the starting point sentence. My reasons are as follows:

(a)     Regarding the 1st Consideration, the mere fact that the 1st Accused was a first offender carried very little weight in the present case – given that the extent of the breach was extensive and was not an isolated incident: see [15(c)] above.

(b)     As for the 2nd Consideration, there is nothing to suggest that the industry awards had anything to do with the 1st Accused’s management of safety matters. Even if there is such evidence, these awards are of little mitigating value unless they were given to the 1st Accused for having gone above and beyond the safety requirements imposed by law. An offender should not be given a sentencing discount for simply having complied with the law – something that he is obliged to do in the first place.

(c)     Regarding the 3rd Consideration, the hardship suffered by the 1st Accused is a natural consequence of them having breached s 16(1)(b). This hardship is not mitigating.

(d)     Finally, and in any event, the 1st to the 3rd Considerations do not in any way diminish the need for a deterrent sentence to be imposed. A high fine will change the perception that fines are just a form of compliance costs: see [23] above: Public Prosecutor v Sindok Trading Pte Ltd [2022] 5 SLR 336 (“Sindok Trading”) at [77].

Sentence imposed

20     Given the absence of applicable offender-specific factors, I sentenced the 1st Accused to a fine of $280,000.

2nd Accused’s sentence

21     Next, I turn to the 2nd Accused’s sentence.

Applicable principles

Section 48(1)

22     It is useful to begin by considering the language in s 48(1). It states –

Where an offence under this Act has been committed by a body corporate, an officer of the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves that —

(a)    the offence was committed without his consent or connivance; and

(b)    he had exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

[emphasis added]

23     In essence, s 48(1) holds an “officer” accountable for WSHA offences committed by his company. The rationale behind this was explained during the Second Reading of the Workplace Safety and Health Bill by the then-Minister for Manpower as follows:

To engender a strong safety culture, commitment of top management is critical. Hence, the Bill holds managers and directors of companies accountable for safety and health practices at their workplaces under clause 48, even though managers may not be able to police safety and health on the ground. This means that even though physical supervision of workers may be delegated, management must show that they have taken active steps to implement sound OSH management systems, including proper risk assessments and reporting systems, provide adequate resources, and ensure that full information is disseminated to workers and other persons exposed to risks.

The purpose behind s 48(1) is clear. Additionally, I noted that companies seek to maximise profits and reduce costs. Some companies may see fines as being no more than a form of compliance costs. If the potential profits outweigh the expected fines, such companies may take the risk of breaching the WSHA. Section 48(1) can address this mindset by making a director personally liable for his company’s breaches.

24     While the purpose behind s 48(1) is clear, it is unclear what considerations apply when sentencing an officer (“O”) for an offence committed by his company (“C”) (“Issue”). Thus far, the Issue appears to have eluded judicial guidance in Singapore.

Culpability – Key consideration

25     In my view, the following are relevant considerations when sentencing s 48(1) offences:

(a)     It is settled law that a sentence must be commensurate with the extent of an offender’s culpability. It is also well established that an offender’s culpability is closely linked to the extent to which he is aware of the circumstances surrounding his offence: see e.g., Sentencing Principles in Singapore (Academy Publishing, 2019) (“Sentencing Principles”) at [11.044(d)]; Public Prosecutor v Tan Thian Earn [2016] 3 SLR 269 at [17] and [47]; Public Prosecutor v Bong Sim Swan, Suzanna [2020] SGCA 82 at [88] and [90(c)]; Nicholas Tan Siew Chye v Public Prosecutor [2023] SGHC 35 at [77];

(b)     Following from the above, there are at least three scenarios in which O can be involved in C’s breach of s 16(1)(b). (The level of O’s culpability for the breach can be very different across these scenarios.)

(i)        Scenario 1. Under the first scenario, O “consents” to C committing the breach: see s 48(1)(a). This happens when O knows of the material facts and explicitly agrees to C committing the breach: Abdul Ghani bin Tahir v Public Prosecutor [2017] 4 SLR 1153 (“Abdul Ghani”) at [99] and [100]; Chua Hock Soon James v Public Prosecutor [2017] 5 SLR 997 (“Chua Hock Soon”) at [203] and [204]; Public Prosecutor v Tan Seo Whatt Albert [2019] 5 SLR 654 (“Tan Seo Whatt”) at [35] – [39]. In other words, O would have intended for C to breach s 16(1)(b) under Scenario 1.

(ii)        Scenario 2. Under the second scenario, O “connives” at C’s breach of s 16(1)(b): see s 48(1)(a). This happens when O is aware of what is going on, can do something to prevent the breach – but turns a blind eye and does nothing. In other words, O has allowed the breach to be committed: Abdul Ghani at [99]; Chua Hock Soon at [204]; Tan Seo Whatt at [41]; Public Prosecutor v Okonkwo Gabriel [1993] 2 SLR(R) 256 at [41]; Public Prosecutor v Iryan bin Abdul Karim [2010] 2 SLR 15 at [123] and [124].

(iii)        Scenario 3. Under the third scenario, O fails to exercise due diligence that could have prevented C’s breach of s 16(1)(b): see s 48(1)(b). This occurs where, for example, O knows or ought to know of the existence of facts requiring him to take safety measures – but fails to do so because he is either negligent or rash: Abdul Ghani at [63].

Among the three scenarios, O’s culpability is the highest in Scenario 1 and the lowest in Scenario 3.

(c)      Third, it bears noting that C and O can breach s 16(1)(b) with different mental states and in different circumstances. Let me illustrate this with two examples. In both examples, assume that O is C’s Chief Operating Officer.

(i)        Example 1. O knows that C’s materials are unsafe. (This knowledge is based on, e.g., frequent reports and complaints that O has received about the materials, as well as his visits to the warehouse.) To save on costs, O instructs his foreman that unsafe materials are to be supplied to the customers. In such a case, both O and C will have breached s 16(1)(b) intentionally.

(ii)        Example 2. O fails to ensure that there is an effective system of safety checks that C’s materials must undergo before they are supplied to the customers. When preparing materials for delivery, C’s foreman detects major defects in some of them. He nonetheless approves them for delivery to a customer. While the foreman – and by implication, C – may have intentionally or knowingly supplied unsafe materials, the same cannot be said of O. O does not have any personal knowledge of the delivery in question. O’s role in the breach of s 16(1)(b) lies in his neglect in implementing an effective safety system.

(d)      Finally, it is also relevant to note that different “officers” within the same company can have different degrees of control and responsibility for the company’s safety matters – and thus can have different levels of culpability for their company’s breach of s 16(1)(b). This is clearly reflected in s 48(1). That provision states that a court is to have regard “to the nature of [the officer’s] functions” in determining whether he is liable for the company’s offence.

26     In summary –

(a)     One cannot assume that the level of C’s and O’s culpability for a breach of s 16(1)(b) will always be the same.

(b)     In determining the level of O’s culpability, it is important to consider (i) what is his role within C regarding safety matters, and (ii) how material is his (mis)conduct to C’s breach of s 16(1)(b). In the case of Scenarios 1 and 2, O’s motive for agreeing to the breach or allowing it to occur is also a relevant sentencing consideration. For instance, if O’s conduct is motivated by financial or other benefits, then this is a culpability-enhancing factor. I should add that the mere fact that O’s conduct is not motivated by any gain per se is a neutral sentencing factor – and not a culpability-reducing factor: see e.g., Chiew Kok Chai v Public Prosecutor [2019] 5 SLR 713 at [67(f)].

Two-stage sentencing approach

27     In the above discussion, the level of harm does not feature in the above analysis on s 48. This is not surprising given that the level of harm for O’s offence is an objective and unchanging factor – it is pegged to the level of harm arising from C’s conduct.

28     As stated earlier, our courts have typically given equal emphasis to both harm and culpability and have applied the two-stage approach when sentencing WSHA offences: [7] to [9] above. In line with this, I am of the view that the following approach can be adopted when sentencing an offender under s 48(1):

At the first stage

(a)     The court determines the following:

(i)       The level of harm posed by C’s offence, and

(ii)       The level of O’s culpability for the offence.

(b)     When determining the level of O’s culpability, the considerations in [9(a)(ii)] above continues to be relevant.

(c)     After determining the levels of harm and culpability, the court will then derive a starting point sentence. As stated in [11] above, reference can be made to the matrix in [9(b)(i)] – bearing in mind of course that the matrix is not binding.

At the second stage

(d)     The court will adjust the starting point sentence based on the offender-specific aggravating and mitigating factors relevant to O.

Avoid double punishment

29     Finally, it bears emphasis that when both C and O are to be sentenced for the same WSHA offence, a court should assess whether C is essentially O’s alter ego. This is because if the answer is “yes”, then a court should not impose deterrent sentences on both C and O – as doing so would be a breach of the principles of totality and against double punishment: Lim Kopi Pte Ltd v Public Prosecutor [2010] 2 SLR 413 at [18]; Sindok Trading at [109].

Applying the principles

30     I will now show how the above principles had been applied in the 2nd Accused’s case.

Level of harm

31     Following from [27] above, the level of harm for posed by the 2nd Accused’s offence is “High”.

Level of culpability

32     In my view, the level of the 2nd Accused’s culpability should be assessed to be “Low”. My reasons are as follows:

(a)     The 2nd Accused’s case fell within Scenario 3: see [25(b)(iii)] above. There is no evidence that he had either consented to (Scenario 1), or connived at (Scenario 2), the 1st Accused’s breach of s 16(1)(b).

(b)     The 2nd Accused’s liability is akin to that in Example 2: see [25(c)(ii)] above. There is no evidence that he was personally aware of the defects in the Supplied Materials before they were delivered to the Worksite. The 2nd Accused’s offence lies in (i) failing to ensure that his workers had dutifully complied with the safety measures and (ii) failing to implement a more robust checking system before the Supplied Materials were delivered to the Worksite: see Conviction GD at [51] to [53]. There is no evidence to show that the 2nd Accused had fostered a culture of indifference to safety consciousness in his company.

(c)     On the contrary, the evidence revealed that the 2nd Accused had tried to ensure that the safety measures were implemented by personally visiting the warehouse and storage areas and randomly selected formwork materials for testing: Conviction GD at [45(d)].

Starting point sentence

33     Based on my assessment that the levels of harm and culpability are “High” and “Low” respectively, I was of the view that the starting point sentence for the 2nd Accused should be $150,000.

34     In arriving at this sentence, I was mindful that the 2nd Accused’s culpability essentially stemmed from one of negligence/omission, and that there was no evidence to show that he had been personally involved in, or had been aware of, the delivery of defective materials to the Worksite. While these factors are relevant to sentencing, I am of the view they should not be given undue weight. This is because a clear message must be sent that save in exceptional circumstances, officers who have the final say on safety matters in their company will be held fully accountable for safety lapses and accidents. The proverbial buck stops with them. Officers should not be allowed to rely on their own negligence/omission to defeat Parliament’s intent of making them liable for WSHA breaches by their companies: see [23] above. Fines imposed on officers such as the 2nd Accused must have deterrent effect.

35     I am also mindful that the starting point sentence of $150,000 is below the tariffs (of between $175,000 to $200,000) set in Koh Lian Kok: see [9(b)(i)] above. As stated in [11] above, these tariffs are useful references only and are not binding on me. Furthermore, and in any event, tariffs set in guideline judgements such as Koh Lian Kok are not cast in stone and should not be applied mechanically.

Adjustment for offender-specific factors

36     I will now address the issue of whether there are offender-specific factors in the 2nd Accused’s case that warrant an adjustment to the starting point sentence.

37     In this regard, I noted the Prosecution’s submission that the 2nd Accused was not remorseful his offence and that this was an aggravating factor. The Prosecution highlighted two points to substantiate their position.

(a)      First, the Prosecution had to expend considerable time and resources at the trial to rebut the 2nd Accused’s case that they had done all that they could to ensure that their formwork materials were safe for use.

(b)      Second, the 2nd Accused had pushed the blame for the collapse to EC Builders and Precise – namely, for having used insufficient bracings to erect the formwork structure.[note: 13]

38     I am unable to agree with the Prosecution.

(a)     I did not find that the 2nd Accused had conducted his defence in an egregious manner so as to warrant an enhancement in sentence: Sentencing Principles at [20.214] to [20.243].

(b)     There is evidence to show that the 2nd Accused did put in place some measures to check for, and to prevent, defective formwork materials from being supplied: Conviction GD at [45] – [47].

(c)     It is also undisputed that 25% of the cross bracings were missing from the formwork.[note: 14]

39     I find that there are no offender-specific factors in the 2nd Accused’s case.

40     Accordingly, I imposed a sentence of $150,000, i/d 150 days’ imprisonment. In arriving at the above sentence, I noted that there is no evidence or submission that the 1st Accused is the alter-ego of the 2nd Accused. As such, the issue of double punishment is not engaged: [29] above.

Conclusion

41     The above are my reasons for the Accused Persons’ sentences.

[note: 1]Prosecution’s Address on Sentence dated 18 June 2024 at [5], [7] to [10]; Accused Persons’ Mitigation dated 21 June 2024 at [32] to [36], [39], [58], [67], [74], [88] and [89].

[note: 2]

[note: 3]Statement of Undisputed Facts Between the Prosecution and the Defence dated 29 May 2023 at [2] and [5].

[note: 4]See Conviction GD at [69] – [79].

[note: 5]See e.g., Agreed Bundle of Documents at pages 4, 5, 7 to 11, 16; Forensic Engineering Assessment of Collapsed Formwork Structure at 47 Jalan Buroh exhibited as AB1-M1 at pages 16 – 19.

[note: 6]Agreed Bundle of Documents at page 50 (Statement of Facts at [3]).

[note: 7]Accused Persons’ Mitigation dated 21 June 2024 at [36] to [38], [41], [47], [54], [55], [77] – [79], and [87].

[note: 8]See Conviction GD at [8], [28] – [37], [57] – [59].

[note: 9]Prosecution’s Address on Sentence dated 18 June 2024 at [22(ii)].

[note: 10]Prosecution’s Address on Sentence dated 18 June 2024 at [22(iv)].

[note: 11]Prosecution’s Address on Sentence dated 18 June 2024 at [22(v)].

[note: 12]Accused Persons’ Mitigation dated 21 June 2024 at [68] to [71].

[note: 13]Prosecution’s Address on Sentence dated 18 June 2024 at [38].

[note: 14]Accused’s Closing Submissions dated 9 January 2024 at [32], [102], [103], [110], [280] – [283]. Forensic Engineering Assessment of Collapsed Formwork Structure at 47 Jalan Buroh exhibited as AB1-M1 at pages 10 – 13.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Appeals","Criminal Law – Offences – Property – Cheating"],"date":"2024-11-11","court":"District Court","case-number":"District Arrest Court Case No DAC 933117 of 2019 and 4 Others, Magistrate's Appeals No 9205 of 2024-01 and 02","title":"Public Prosecutor v Jeremy Francis Cruez","citation":"[2024] SGDC 293","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32464-SSP.xml","counsel":["Matthew Choo and Chaye Jer Yuan (Attorney-General's Chambers) for the Public Prosecutor","A. Revi Shanker (ARShanker Law Chambers) for the Accused."],"timestamp":"2024-11-16T16:00:00Z[GMT]","coram":"Lim Tse Haw","html":"Public Prosecutor v Jeremy Francis Cruez

Public Prosecutor v Jeremy Francis Cruez
[2024] SGDC 293

Case Number:District Arrest Court Case No DAC 933117 of 2019 and 4 Others, Magistrate's Appeals No 9205 of 2024-01 and 02
Decision Date:11 November 2024
Tribunal/Court:District Court
Coram: Lim Tse Haw
Counsel Name(s): Matthew Choo and Chaye Jer Yuan (Attorney-General's Chambers) for the Public Prosecutor; A. Revi Shanker (ARShanker Law Chambers) for the Accused.
Parties: Public Prosecutor — Jeremy Francis Cruez

Criminal Procedure and Sentencing – Sentencing – Appeals

Criminal Law – Offences – Property – Cheating

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9205/2024/01-02.]

11 November 2024

District Judge Lim Tse Haw:

Introduction

1       The Accused, Jeremy Francis Cruez (a male Sri Lanka national now of 60 years of age) (“the Accused”), pleaded guilty before me to one charge under section 417 of the Penal Code (Cap 224, 2008 Revised Edition)(“the Penal Code”) summarised as follows:

1st charge (DAC-933117-2019)

Between 13 April 2017 and 3 April 2018, on 24 different incidents, the Accused cheated Major’s Pest Management Services Pte Ltd (the “Company”) by deceiving the Company into believing that it had to pay a total amount of $118,384 for supplies, a fact which the Accused knew to be false, and by such manner of deception, the Accused intentionally induced the Company to deliver a total of $118,384 to him, which the Company would not have done had it not been so deceived, and which incidents taken together amounted to a course of conduct, and the Accused had thereby committed an offence punishable under s 417 of the Penal Code, which charge was amalgamated under s 124(4) of the Criminal Procedure Code 2010 (“CPC”)(“the proceeded cheating charge”).

2       The following four charges were taken into consideration (“TIC”) with the consent of the Accused for the purpose of sentencing:

(a)     Two similar charges of cheating the Company under s 417 of the Penal Code read with s 124(4) of the CPC, amounting to $35,458 and $36,613.60 respectively;[note: 1]

(b)     One charge of forgery for the purpose of cheating the Company, involving $3,430.95, an offence under s 468 of the Penal Code;[note: 2] and

(c)     One charge of theft of 41 blank invoices from Da Zhou Trading (“Da Zhou”), an offence under s 380 of the Penal Code.[note: 3]

3       Having considered all relevant sentencing considerations, I sentenced the Accused to six months’ imprisonment.

4       Being dissatisfied with the sentence imposed, both the Accused and Prosecution have appealed against the same.

Background

5       The Accused had initially claimed trial to all the above five charges before another district judge on 13 September 2021. The three cheating charges proceeded with were then under s 420 of the Penal Code, which offence is punishable with imprisonment of up to ten years and a liability to a fine. According to the Prosecution, the trial proceeded for 18 days. However, on 25 June 2024, the Accused decided to plead guilty before me as set out in [1] and [2] above.

Statement of Facts

6       The Accused admitted to the statement of facts[note: 4] without any qualification summarised as follows:

7       The Company has two departments which deal in Pest Management and Fumigation respectively.[note: 5]

8       The Accused started his employment with the Company from 3 June 2011. He was initially employed as a Business Development Manager. Sometime in end 2016, the Accused was concurrently appointed as the Fumigation Manager in charge of the Fumigation Department. Owing to the Accused’s offending, his employment was terminated on 10 December 2019.[note: 6]

9       As the Fumigation Manager, the Accused led a team of Fumigators who performed fumigation works as contracted. The Accused was responsible for ensuring that the supplies required for the fumigation works were obtained. These supplies included, amongst others, canvases, probes, canisters of gases, thermometer, and compressors.[note: 7]

10     The Accused was required to seek approval for the purchase of the supplies before the purchase was made. This included submitting an invoice in support of the purchase. He then presented invoices to the Company’s administrative staff for payment processing.[note: 8]

11     Between 13 April 2017 and 22 October 2019 (both dates inclusive), the Accused sought 46 different disbursements from the Company for payment to six different suppliers for fumigation related supplies, namely Lain Heng Canvas & Hardware Trading Pte Ltd (“Lain Heng”),[note: 9] Apple Graphic Pte Ltd (“Apple Graphic”), Parisilk Sealants Pte Ltd (“Parisilk”), WKS Industrial Gas Pte Ltd (“WKS Industrial”)[note: 10] and Da Zhou [note: 11]. The Accused submitted the above invoices purportedly from these suppliers in support of his claims.[note: 12]

12     When the Accused was questioned by the Company’s managing director as to why the suppliers required payment in cash for the disbursements, the Accused explained that these suppliers were always paid in cash during the Company’s previous managing director’s time. He then provided emails from the suppliers who purportedly requested for payment in cash or for the cheque to be addressed to one Myrna who was stated to be an “executive in charge of accounts” in the emails.[note: 13] However, Myrna was a close friend of the Accused and at the material time, she was employed as a domestic helper. She was never in the employ of any of the suppliers stated in [11] above.[note: 14]

13     On each occasion, the Accused represented to the Company that the disbursement was for an order of supplies for the indicated type and quantity from a particular supplier as reflected in the invoices. The Company believed that the amounts it disbursed were paid to the suppliers above, and that the supporting invoices submitted were genuine. In total, the Company disbursed $190,455.60 as payment for the supplies to the Accused and/or Myrna.[note: 15]

14     In reality, the invoices submitted by the Accused were either fake or forged. No such company as Lain Heng existed, and the invoices of Apple Graphic, Parisilk, WKS Industrial and Da Zhou were forged. In respect of the invoices of Lain Heng, Apple Graphic, Parisilk and WKS Industrial, the Accused obtained these invoices from an unknown individual. The Accused knew that the invoices were either fake or forged.[note: 16]

15     To ensure that the Fumigators received the required supplies for the fumigation works, the Accused purchased the required supplies from other suppliers. He then marked up the price he paid by 5% in the fake or forged invoices, pocketing the difference, tabulated as follows:[note: 17]

Charge

Invoiced Amount

Mark Up

The proceeded cheating charge

$118,384

$5,919.20

2nd cheating charge

$35,458

$1,772.90

3rd cheating charge

$36,613.60

$1,830.68

Total

$190,455.60

$9,522.78



16     Hence, for the proceeded cheating charge, between 13 April 2017 and 3 April 2018, on 24 different incidents, the Accused deceived the Company into believing that it had to pay the amounts as stated above to Lain Heng for supplies, a fact which he knew to be false, and which incidents taken together amounted to a course of conduct.[note: 18] The Accused did so by presenting invoices of Lain Heng and requested for payment of the invoiced supplies. The Accused knew that no such company as Lain Heng existed, and the invoices submitted were false. The Accused thereby intentionally induced the Company into disbursing a total of $118,384 to him via cash cheques as payment, which the Company would not have done were it not so deceived, and which act caused damage to the Company’s property.

17     The total amount marked up along with the claim made using a forged Da Zhou invoice[note: 19] was $12,953.73.[note: 20]

18     The Prosecution informed that one day before the matter was fixed for mitigation and submissions on sentence, on 21 October 2024, the Accused had approached the Investigation Officer and offered to make restitution of the sum of $12, 953.73. However, the Company had refused to accept any restitution.[note: 21]

Antecedent

19     The Accused was a first-time offender.

Prosecution’s Submissions on Sentence

20     The Prosecution submitted for an imprisonment term of between 14 to 16 months on the following grounds:[note: 22]

(I)   General Deterrence the Dominant Sentencing Principle

21     The Prosecution submitted that the Accused’s offending was premeditated and sophisticated, and warranted the imposition of a deterrent sentence, relying on PP v Law Aik Meng [2007] 5 SLR(R) 814 (“Law Aik Meng”) at [24] and [25(d)].[note: 23]

22     The Accused’s offending was premeditated which involved significant planning, as follows:[note: 24]

(a)     He had to first obtain fake or forged invoices from an unknown individual to support his claims for payment to the purported suppliers for fumigation-related equipment. The Accused also ensured that the fake or forged invoices contained a 5% mark-up from the actual amount spent to allow him to pocket the difference between the actual amount he paid for the fumigation supplies and the invoiced amount;

(b)     Thereafter, he then submitted these fake or forged invoices to the Company’s administrative staff for payment processing in order to have the Company disburse payment for the purported supplies;

(c)     Finally, the Accused procured the fumigation-related equipment required for the Fumigators to carry out the contracted fumigation works. This not only ensured the continuity of the Fumigators’ works, but also the continuity of the Accused’s scheme.

23     The Accused’s offending was also sophisticated as he took active steps to ensure the continuity of his scheme and worked against its unravelling as follows:[note: 25]

(a)     By procuring the equipment and actually carrying out the fumigation works, the Accused allowed for his scheme to run undetected under the Company’s nose for three years[note: 26], such that they were none the wiser that the Accused had submitted fake or forged invoices;

(b)     The Accused was also shrewd in providing emails purportedly from the suppliers when he was questioned by the managing director of the Company, on why the suppliers required payment in cash cheques. These emails convinced the Company that the suppliers indeed required payment in cash or for the payments to be addressed to Myrna who was falsely represented to be an “executive in charge of accounts”. In reality, the payments by the Company went to the Accused who either encashed the cash cheque or got Myrna to encash the cheques and handed the money to him.

(II)   Substantial Sum Involved an Aggravating Factor

24     For cheating offences, the amount involved was a key sentencing consideration (PP v Fernando Payagala [2007] 2 SLR(R) 334 at [47]). The Accused’s offences involved a substantial amount of $190,455.60. The custodial threshold was clearly crossed given that the Company parted with significantly more than negligible value (Idya Nurhazlyn bte Ahmad Khir v PP [2014] 1 SLR 756 at [47])(“Idya Nurhazlyn”).[note: 27]

25     The Prosecution submitted that the Court should focus on the amount cheated by the Accused from the Company. While the Accused’s provision of the fumigation-related equipment did allow for the Company to carry out its fumigation works as required, this was also part of how the Accused was able to continue his scheme undetected, and his way of making personal gains by marking up the invoices. Seen in that light, the Accused’s personal gain from his offending was S$12,953.73.[note: 28]

(III)   The Accused Cannot Be Treated as a First-time Offender

26     For an offender like the Accused who faced numerous charges, the Prosecution submitted that he cannot be considered a first-time offender (Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 343 at [17]). The Accused’s offending spanned three years from 2017 to 2019 for which he faced numerous different charges. Hence, he should not be considered a first-time offender.[note: 29]

(IV)   Sentence Sought In Line with Precedents

27     The Prosecution submitted that the sentence they sought for was in line with reported precedents as follows:[note: 30]

Case Name

Brief Facts

Sentence

Remarks

Idya Nurhazlyn

Cheating offences involving $1000 and $15,000.

Custodial sentences of 4 and 8 months’ imprisonment were imposed.

Observation by the High Court in Idya Nurhazlyn at [47].

PP v Hogberg Marc Eric Rickard

[2020] SGDC 203

The offender pleaded guilty (“PG”) on the second day of trial to a s-417 charge for deceiving the victim of S$50,000 for the purchase of shares of a company that the offender was purportedly a shareholder of. One similar charge under s-417 involving S$25,000 was TIC.

The offender made full restitution of both sums.

5 months’ imprisonment.

The appeal against sentence was dismissed by the High Court.

PP v Tan Hwee Ngo

[2020] SGDC 277

(“Tan Hwee Ngo”)

The offender claimed trial to, inter alia, one charge under s- 417 of the Penal Code (Cap. 224, Rev. Ed. 1985) (“PC 1985”) in a long-drawn fraud perpetrated against a single victim over 13 years.

The s 417 PC 1985 charge pertained to cheating the victim into withdrawing S$53,131.64 from his CPF account.

Negligible restitution of between S$2,000 and S$5,000 was made.

6 months’ imprisonment.

(The prescribed punishment for s-417 of the PC 1985 was up to 1 year imprisonment or fine or both).

The appeal was dismissed by the High Court.

PP v Chen Chen Chang (unreported – cited in Tan Hwee Ngo at [138])

The offender PG to 6 counts of s- 417 charge involving a total of S$66,027.50 for cheating his company on 24 occasions over a period of three years into paying commissions to himself when it was meant to be paid to individuals who had introduced business to the company.

A total of 17 counts of s 417 charges were TIC.

The total loss was S$138,102.50.

Full restitution was made.

Sentences of 2 and 5 months’ imprisonment were imposed for a global sentence of 12 months.

The Prosecution recognised that this was an unreported precedent but highlighted the case as it bore much factual similarity to the present case.

The Prosecution submitted that the sentence to be imposed in the present case must be higher than that in Chen, since the number of cheating occasions was higher (46 versus 24) and the amount cheated was similarly higher (S$190,455.60 versus S$138,102.50)[note: 31]



(V)   Sentence Reduction on Guilty Plea

28     As the present case pre-dated the commencement of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentences for Guilty Pleas (“the Guidelines”) which took effect 1 October 2023, the Prosecution’s position was that the Guidelines do not apply. However, if it did, they submitted that present came under Stage 4 of the Guidelines for up to a maximum of 5% reduction given that the Accused had pleaded guilty on or after the first day of trial.[note: 32]

Accused’s Plea in mitigation and Submissions on Sentence

A   Preliminary Comment

29     Having read the Mitigation and Submission on Sentence[note: 33] (“Mitigation”) submitted by Counsel for the Accused, Mr A. Revi Shanker (“Mr Shanker”), I informed Mr Shanker that his Mitigation was so convoluted and verbose (and often with grammatical errors) that I had difficulty understanding what he was trying to submit.[note: 34] By way of illustration, paragraph 1 of his Mitigation reads as follows:

“With the greatest of respect, the most untoward thing is not the qualification of the plea by our client (AP- here in after)--- for 60 years (DOB-17 September 1964) of age separated from Wife and Children, Keith and kin, for years at least since November 2019 (from 27 November 2019- Date-of-Arrest) and being on special pass, which prohibits gainful employment by Law, compelling him to live at the mercy of friends and relatives whose assistance is only, not unexpectedly, thinning away such that his queues for food (breakfast, lunch and dinner) on a daily basis at religious place of worship and other organizations have become more frequent, ejusdem generis, his family (wife and children) too are struggling back in Sri Lanka with income from AP who was the sole breadwinner in all these years (at least till November 2019) such that genuineness to dispose off maters is pressing coupled with contriteness to say the least--- but is the manner or content of the charge(s) as framed (especially the three s 417 charges even after the amendments);” (sic)[note: 35]

30     After I confirmed with Mr Shanker that he himself had drafted the Mitigation, I asked Mr Shanker to summarise orally at the hearing on 22 October 2024 what he was trying to submit as the Accused’s plea in mitigation and submission on sentence, so that I do not misunderstand him. Mr Shanker then summarised it as follows:[note: 36]

Counsel’s Summary on Plea in Mitigation and Submissions on Sentence

The Accused Was Not Qualifying His Plea

31     Mr Shanker clarified that the Accused was not qualifying his plea and he was no longer submitting that s 124(4) of the CPC should not apply to the proceeded cheating charge as the period of offence, namely 13 April 2017 to 3 April 2018, predated 31 October 2018, the date on which s 124(4) of the CPC came into effect.[note: 37] It was quite clear to me that the High Court in PP v Loh Cheok San [2023] SGHC 190 at [62][note: 38] was merely saying that the doubling of the court’s sentencing jurisdiction for amalgamated charges as provided for in s 124(8) of the CPC only applies to acts which take place on or after 31 October 2018, and not that s 124(4) of CPC is not applicable to such acts. On the face of the proceeded cheating charge, it was quite clear that the Prosecution was not invoking the doubling of the court’s sentencing jurisdiction for this charge under s 124(8) of the CPC.

The Defence Was Submitting For a Fine Only

32     Mr Shanker next clarified that he was submitting for a fine to be imposed on the Accused on the following grounds:

(1)   Relying on Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523[note: 39] (‘Glenn Knight”)

33     Mr Shanker submitted[note: 40] that just like in Glenn Knight, as the Prosecution in the present case had decided to proceed on the “intentionally induces” limb under s 415 of the Penal Code and not the “higher limb” of “ fraudulently or dishonestly induces”, it was “trite that if mens rea is lower the sentence too should be lower; in other words the gravity of the charge is lessened to that extent”. In Glenn Knight, a sentence of a fine of $7000 was imposed by the High Court on appeal for the s 417 charge. He then submitted for a fine “in excess of $7000 should suffice” as the “impugned amount” was $5919.20 and not $112,464.80 as submitted by the Prosecution.[note: 41]

(2)   No Loss was Suffered by the Company

34     Finally, Mr Shanker submitted that no loss was suffered by the Company as the Accused was ready and prepared to make full restitution to the Company, but it was the Company which refused to accept restitution.

My Decision

The Defence’s Submission For a Fine Was Not Appropriate

35     Mr Shanker’s reliance on Glenn Knight to submit for a fine to be imposed in the present case was clearly misguided for the following reasons:

(a)      Glenn Knight was a case of attempted cheating under s 417 of the 1985 PC. Hence no loss was suffered by the intended victim. [note: 42] In contrast, the Company in the present suffered a total wrongful loss of $12,953.73 (see [17] above);

(b)     The maximum imprisonment term for the attempted cheating charge under s 417 of the 1985 PC was six months[note: 43], as compared to the maximum term of three years for the proceeded cheating charge;

(c)     The offender in Glenn Knight had a distinguished record of public service.[note: 44] Whereas whatever contributions the Accused may have had to the Company, if any, was limited to the Company only; and

(d)     In Idya Nurhazlyn, Sundaresh Menon CJ held that a custodial sentence will generally be appropriate as long as the offence in question causes a victim to part with property that has more than negligible value.[note: 45]

36     Further, it would be incorrect for Mr Shanker to submit that the Company did not suffer any loss because Accused was ready and able to make restitution to the Company. This is because the Company did suffer wrongful loss to the tune of $12,953.73 as a result of the Accused’s crimes. The fact that the Accused was willing and able to make full restitution to the Company merely meant that the Accused was prepared to mitigate the loss suffered by the Company, but did not mean that the Company did not suffer any loss at all in the first place. In any event, I was prepared to sentence the Accused on the basis that full restitution was intended to be made by the Accused as it was the Company who refused to accept the restitution offered. However, in view of the lateness of the offer to make full restitution to the Company, i.e. almost five years after he was charged in court on 29 November 2019 and after 18 days of trial, the mitigating value is low (see PP v S. Iswaran [2024] SGHC 251 at [134]) (“S. Iswaran”). [note: 46]

The Prosecution’s Submission For 14-16 months’ Imprisonment Was Manifestly Excessive

37     I agreed with the Prosecution’s submissions that general deterrence must be the dominant sentencing principle in this case as the Accused’s offending was premeditated and sophisticated, involving significant planning (see [21] to [23] above).

38     However, while the total amount delivered to the Accused as a result of his deception was a relevant sentencing factor, it cannot be considered in isolation from other facts pertaining to the case. What was more significant was the wrongful loss suffered by the Company, which was S$12,953.73 (see [25] above).

39     In this regard, in Idya Nurhazlyn, a sentence of three months’ imprisonment was upheld by Sundaresh Menon CJ when the offender plead guilty to, inter alia, a charge under s 417 of the Penal Code for using a dud cheque to cheat the victim of $10,509. Full restitution was made in that case. Sundaresh Menon CJ held (Idya Nurhazlyn at [49] to [51]) that using a financial instrument such as a dud cheque was an aggravating factor in that case. There was no such aggravating in the present case.

40     The wrongful loss suffered by the Company in the present case, S$12,953.73 was higher than that in Idya Nurhazlyn. Although there was no use of a dud cheque to cheat by the Accused, there were other aggravating factors present as follows:

(a)     The large quantum delivered to the Accused, the premeditation and the sophistication of the Accused’s cheating modus operandi as highlighted in [21] to [23] above;

(b)     There was an element of a betrayal of trust by the Accused. As a long-time employee of the Company, the Accused had betrayed the trust that the Company had reposed in him to carry out his duties in the Company faithfully and honestly, when he cheated the Company instead;

(c)     The offences also took place over a prolonged period of more than 2.5 years from 13 April 2017 to 22 October 2019.[note: 47]

41     Hence, in my judgement, the above aggravating factors warranted an uplift of the sentence of three months’ imprisonment imposed in Idya Nurhazlyn to six months for the present case. In my view, the aforesaid aggravating factors did not justify a sentence of 14-16 months’ imprisonment as submitted by the Prosecution. Had the Accused pocketed the entire sum of S$190,455.60 and left the Company in a lurch by not carrying out any of the fumigation works, then perhaps a sentence of 14-16 months’ imprisonment as sought for by the Prosecution would be appropriate.

42     The above sentence would not be out of synch with the sentencing precedents cited by the Prosecution as summarised in [27] above:

(a)     In Hogberg, the total sum delivered to the offender (and also the wrongful loss suffered by the victim) was $75,000 (including the TIC charge), which was much higher than the present case. The offender had deceived the victim into paying him to buy shares of a company which the offender did not own. The case did not appear to feature the same sophistication and planning found in the present case. The offender PG on the second day of the trial and made full restitution. The sentence of five months’ imprisonment was upheld on appeal;

(b)     In Tan Hwee Ngo, six months’ imprisonment was imposed on the offender who was convicted after trial of cheating the victim of $53,131.64 of his CPF monies. This sum would also be the wrongful loss suffered by the victim. Although the punishment for s 417 offence under PC 1985 was only up to one year imprisonment, the facts of this case were clearly more aggravating than the present case, as the wrongful loss caused to the victim was much higher, comprising his CPF monies and the offender did not PG. There was also negligible restitution. The sentence was similarly upheld on appeal.

(c)     In Chen Chen Chang- the Prosecution recognised that this was an unreported case. However, a quick glance at the brief facts prepared by the Prosecution would show that this case is distinguishable from the present case as the total loss suffered by the company was $138,102.50, far higher than the actual loss of S$12,953.73 in the present case. It would not be appropriate for the Prosecution to use the sum of $190,455.60 delivered to the Accused for comparison as it was not the actual loss suffered by the Company in the present case. In any event, I note that there was no appeal against the global sentence of 12 months’ imprisonment imposed by the district court.

43     Finally, as the present case pre-dated the Guidelines, I agreed with the Prosecution that the Guidelines did not apply to the present case (see [28] above). Nevertheless, I did factor in some discount in sentencing in the six months’ imprisonment imposed on the Accused on account of his plea of guilt, albeit after 18 days of trial (see [5] above).

Conclusion

44     Lawyers and prosecutors would do well to prepare their written submissions in plain English and easy to read manner. This would save much valuable judicial time in reading and understanding the submissions.

45     Both the Accused and Prosecution, being dissatisfied with the above sentence, have appealed against the same. The Accused is currently serving his sentence although bail pending these appeals was offered to him on his application.

[note: 1]DAC 933411/2019 (“the 2nd cheating charge”) and DAC 933412/2019 (“the 3rd cheating charge).

[note: 2]DAC 906879/2020 (“the forgery charge”).

[note: 3]DAC 906880/2020.

[note: 4]PS1

[note: 5]Ibid. at [2].

[note: 6]Ibid. at [4].

[note: 7]Ibid. at [5].

[note: 8]Ibid. at [6].

[note: 9]These formed the subject matters of the proceeded cheating charge and the 2nd cheating charge.

[note: 10]The purported payments to Apple Graphic, Parisilk and WKS Industrial formed the subject matter of the 3rd cheating charge.

[note: 11]This formed the subject matter of the forgery charge.

[note: 12]PS1 at [7].

[note: 13]Ibid. at [8].

[note: 14]Ibid. at [3(c)].

[note: 15]Ibid. at [9].

[note: 16]Ibid. at [10].

[note: 17]Ibid. at [11].

[note: 18]Ibid. at [12].

[note: 19]The subject matter of the forgery charge.

[note: 20]PS1 at [16].

[note: 21]See Notes of Evidence (“NE”) on 22 October 2024, page 1, line 16 to page 2, line 3.

[note: 22]The Prosecution’s Skeletal Address on Sentence (“PSS”) at [1].

[note: 23]Ibid. at [2].

[note: 24]Ibid. at [3].

[note: 25]Ibid. at [4].

[note: 26]Ibid. at [7].

[note: 27]Ibid. at [5].

[note: 28]Ibid. at [6].

[note: 29]Ibid. at [8].

[note: 30]Ibid. at [9].

[note: 31]Ibid. at [9(b)(iii)].

[note: 32]Ibid. at [10].

[note: 33]D1.

[note: 34]NE on 22 October 2024, page 6 line 17 to page 7 line 28.

[note: 35]D1 at [1].

[note: 36]NE on 22 October 2024, page 6 line 19 to page 10 line 18.

[note: 37]D1 at [1] to [3].

[note: 38]Ibid at Tab 1.

[note: 39]Ibid at Tab 8.

[note: 40]Ibid at [7].

[note: 41]Ibid at [4] and [5].

[note: 42]Glenn Knight at [1].

[note: 43]Ibid at [1].

[note: 44]Ibid at [27].

[note: 45]Idya Nurhazlyn at [47].

[note: 46]D1 at Tab 25.

[note: 47]See PS1 at [7].

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Public Prosecutor v Tan Jun An Jason
[2024] SGDC 289

Case Number:District Arrest Case No 918786 of 2021, Magistrate's Appeal No. 9204-2024-01
Decision Date:11 November 2024
Tribunal/Court:District Court
Coram: James Elisha Lee
Counsel Name(s): Deputy Public Prosecutor Gabriel Lee (Attorney-General's Chambers) for the Public Prosecutor; Mr Sinnadurai s/o T Maniam (Rex Legal Law Corporation) for the Accused.
Parties: Public Prosecutor — Tan Jun An Jason

Criminal Law – Offences – Driving Without Reasonable Consideration for Other Persons Using the Road Causing Grievous Hurt

Criminal Procedure and Sentencing – Sentencing – Road Traffic Act 1961

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9204/2024/01.]

11 November 2024

District Judge James Elisha Lee:

Introduction

1       The accused, Tan Jun An Jason, a male 30-year-old Singaporean (“the Accused”), had initially claimed trial to 1 charge under s 65(1)(b) p/u s 65(3)(a) r/w s 65(6)(d) of the Road Traffic Act (“RTA”) for driving a motor car without reasonable consideration for other persons using the road along the Central Expressway by making an abrupt lane change which resulted in a collision with a motorcycle and consequently causing grievous hurt to the motorcycle rider. He pleaded guilty to the charge on the first day of the scheduled trial.

2       The prescribed punishment under s 65(3)(a) of the RTA is a fine not exceeding $5,000 or imprisonment not exceeding 2 years. The court is also to, unless it for special reasons thinks fit to order otherwise, make an order for disqualification from obtaining or holding all classes of driving licence (“DQ”) for 5 years under s 65(6)(d) of the RTA.

3       After having heard and considered the Prosecution’s submissions on sentence and the mitigation plea, I sentenced the Accused to 7 months and 2 weeks imprisonment and 5 years’ DQ with effect from the date of release.

4       The Accused being dissatisfied filed an appeal against his sentence. He is currently on bail pending appeal.

5       These are the grounds for the sentence imposed.

The Charge

6       The charge read as follows:

DAC 918786 of 2021

You…are charged that you, on 18 April 2021, between 8.40pm to 8.52pm, along the Central Expressway (“CTE”) towards the Seletar Expressway (“SLE”) near the 0.8km mark, Singapore, did drive a motor car bearing registration number SFX6606R (“the Car”) on a road without reasonable consideration for other persons using the road, to wit, by making an abrupt lane change from lane 3 to lane 2 of the CTE, which resulted in a collision with a motorcycle bearing registration number JMB4708 that was travelling in lane 2 of the CTE, and consequently, caused grievous hurt to the rider of the said motorcycle, one Beh Chai Bek (55-year-old male at the time of the offence), and you have thereby committed an offence under s 65(1)(b) punishable under s 65(3)(a) read with s 65(6)(d) of the Road Traffic Act (Cap 276, 2004 Rev Ed).

Statement of Facts

7       The Statement of Facts which the Accused admitted to without qualification is summarised as follows.

First information report

1.    On 18 April 2021, at about 8.52pm, one Mr Ben Yang called ‘999’ and reported the following, “One car hit a motorbike. The motorcyclist is injured.” The incident location was provided as the Ayer Rajah Expressway (“AYE”) towards Central Expressway (“CTE”), before the tunnel at the Clemenceau Exit.

Facts pertaining to the charge

2.    Investigations revealed that on 18 April 2021, at about 8.00pm, the accused left his house at Block 701 West Coast Road, Singapore, and drove towards Jalan Membina, Singapore. The accused had used the directions from the map on his Waze application throughout the journey – from the AYE towards the CTE; and thereafter, from the CTE towards the Seletar Expressway (“SLE”), where the accident occurred.

3.    At about 8.40pm, the accused was travelling, at a speed of 90km/h to 100km/h, in lane 1 of a three-lane road along the CTE, in the direction towards the SLE. Towards the exit to Outram Road, the map on his Waze application prompted him to take the said exit. The accused thus made a lane change to the left to exit onto Outram Road. While he was in the midst of changing lanes from lane 2 to lane 3, the map on his Waze application suddenly re-routed. This prompted the accused to abruptly change lanes from lane 3 to lane 2 along the CTE, in front of a lorry which was travelling in lane 2.

4.    As a result of the abrupt lane change, the Car collided into the Motorcycle which was travelling in front of the said lorry in lane 2 of the CTE. The accused would have been able to see the Motorcycle when he was behind the lorry. As the result of the collision, the victim fell off the Motorcycle and landed on the road between lanes 1 and 2. When the collision occurred, there were other vehicles travelling behind the victim. The accused eventually stopped the Car on the road shoulder of the expressway and alighted from the vehicle. He saw the victim lying on the road.

5.    The in-car footage from a vehicle that was travelling in lane 1 of the CTE, behind the Car and the Motorcycle, captured the accident.

6.    The victim was subsequently conveyed by ambulance to the Emergency Department of the Singapore General Hospital (“SGH”). On clinical examination, multiple abrasions and superficial lacerations were noted over the victim’s right upper lip, left upper eyebrow and eyelid, left shoulder, right posterior flank, bilateral knees and toes of both feet. X-rays of the chest and pelvis were performed as well as a CT pan-scan and the following injuries were noted:

a.    left facial bone fractures involving the zygomatic arch and fronto-zygomatic process;

b.    displaced fractures of the second to fifth ribs on the left, and non-displaced fractures of the sixth to eight ribs on the left;

c.    mild left posterior chest wall haematoma and mild haemothorax; and

d.    left lung contusions.

9.    X-rays of the extremities were performed in view of pain and swelling over the victim’s hands and feet, and the following injuries were noted:

a.    left foot 5th metatarsal head/neck fracture;

b.    right hand 2nd metacarpal base fracture;

c.    left foot 5th toe distal phalanx fracture;

d.    left 4th toe metatarso-phalangeal joint dislocation;

e.    left foot possible cuboid fracture; and

f.    comminuted fracture of left proximal fibula.

10.    The victim subsequently underwent the following procedures and courses of treatment:

a.    a minimally invasive procedure involving the injection of local anaesthesia, to control the pain brought about by the rib fractures;

b.    application of a dutch boot cast to the left lower limb, to immobilise the left lower leg and foot;

c.    application of a resting wrist splint on the victim’s right hand, to facilitate the healing of the hand fracture.

11.    The victim’s lacerations were sutured in the Accident & Emergency Department and the facial fracture was managed conservatively.

12.    The victim was hospitalised from 18 April 2021 to 11 May 2021, and was on hospitalisation leave from 18 April 2021 to 15 September 2021.

13.    Based on the victim’s last review in Rehabilitation Medicine clinic on 10 August 2021, no permanent disability was identified.

14.    The Vehicle Damage Report for the Car (dated 19 April 2021) stated that there were scratches and dents on the rear right passenger door and rear right tyre. Additionally, the Vehicle Damage Report for the Motorcycle (dated 19 April 2021) stated that there were scratches and dents on the left side, front left handlebar, side mirror and the front mudguard. The final cost of repairs for the Motorcycle was S$4,400.

15.    At the time of the accident, the weather was fine, road surface was dry and the traffic flow was moderate.

Antecedents

8       The Accused is untraced.

Overview Of the Parties’ Positions On Sentence

Prosecution’s Address on Sentence

9       The Prosecution, applying the sentencing framework set out in the High Court’s decision in Chen Song v PP [2024] SGHC 129 (“Chen Song”) had submitted for an imprisonment term of between 7.5 to 9.5 months imprisonment with 5 years’ DQ.

The Mitigation Plea

10     The Defence had submitted for a Mandatory Treatment Order (“MTO”) to be issued, and in this regard had submitted for an MTO suitability report to be called. In the alternative, they had submitted for an imprisonment term of 6 months with 5 years’ DQ[note: 1].

11     In support of their submission for an MTO, the Defence had tendered a psychiatric report by Dr Rajesh Jacob from Promises Healthcare / Winslow Clinic who had diagnosed the Accused as suffering from Major Depressive Disorder (“MDD”). Dr Jacob had opined that there was a significant contributory link between the Accused’s MDD and the offence and that at the material time, the Accused was experiencing auditory hallucinations which had distracted him during driving which led to the accident.

12     The Prosecution had objected to the calling of an MTO suitability report. They had tendered a psychiatric report by Dr Cheok Cheng Soon Christopher (“Dr Cheok”) of the Institute of Mental Health (“IMH”) which stated that while the Accused was suffering from Persistent Depressive Disorder (“PDD”) and Alcohol Use Disorder (“AUD”) there was no contributory link between the Accused’s condition and the offence.

Sentencing Considerations

13     The 2 issues which had arisen, in view of the submissions by parties were as follows:

(a)     Whether a MTO suitability report should be called in respect of the Accused.

(b)     The appropriate sentence for this case based on the application of the Chen Song sentencing framework.

Whether a MTO suitability report should be called

14     As set out at paragraph 11 above, Dr Jacob had opined that there was a significant contributory link between the Accused’s psychiatric condition and the offence. He had also opined that at the material time, the Accused was experiencing auditory hallucinations which had distracted him during driving which led to the accident[note: 2].

15     Dr Jacob’s opinion that the Accused was experiencing auditory hallucinations at the material time appear to be based on what the Accused had informed him over 3 interview sessions and his interviews with the Accused’s wife and mother. According to Dr Jacob’s report, the Accused had started hearing a male unknown voice in 2020 “which used to shout at him or talk to him in a derogatory manner and saying that he was worthless, and he is a burden to others.” The Accused reported telling his wife about the voice in early 2021 and that he would sometimes respond back to the voice. He also reported that the intensity of the voice increased after his wife gave birth which was 1 week before the accident[note: 3].

16     The Accused’s account was corroborated by his wife and mother[note: 4].

17     Dr Jacob had made no mention in his report, however, of the fact that the Accused had reacted to a sudden re-routing on the Waze app which the Accused was using at the material time, a fact which had been admitted to by the Accused without any qualification in the SOF. According to Dr Jacob’s report, the SOF was amongst the sources of information he had relied upon. It was unclear from the report, however, whether Dr Jacob had considered this fact in his assessment that it was the auditory hallucinations which the Accused had claimed to be labouring under which had led to the accident. It was pertinent that Dr Jacob had also not referred to the Accused’s statements to the police in the preparation of his report as, according to his report, the statements were not available[note: 5]. It was not in dispute that the Accused had made no mention of the auditory hallucinations in his statements to the police.

18     The Defence had had the opportunity to obtain a clarificatory report from Dr Jacob. No such report was tendered.

19     The Prosecution had tendered a psychiatric report by Dr Cheok of IMH which had stated that while the Accused was suffering from Persistent Depressive Disorder (“PDD”) and Alcohol Use Disorder (“AUD”) there was no contributory link between the Accused’s condition and the offence[note: 6].

20     Dr Cheok had opined that there was no contributory link between the Accused’s condition and the offence. According to the report, in his interview with Dr Cheok, the Accused had informed that he heard “random thoughts” in his head and had shouted back at the “voice”. He had also informed Dr Cheok that he “lost concentration on the road” and that he had responded to his navigation app re-routing and hit the motorbike as a result[note: 7].

21     Dr Cheok had observed that despite his psychiatric symptoms, the Accused was able to work and drive a car. There was also no substantial impairment of his ability to look after himself. Dr Cheok expressed doubt that the Accused was distracted by hallucinations at the time. He observed, firstly, that the Accused had not reported the hallucinations in his statements to the police. Secondly, the Accused had reported that the so-called voices were experienced in the head. According to Dr Cheok, a typical auditory hallucination is experienced as coming from outside the body[note: 8].

22     The Defence disputed certain factual aspects of Dr Cheok’s report in the mitigation pleas[note: 9]. These relate in the main to what the Accused had informed Dr Cheok regarding his alcohol consumption patterns and what the Accused’s mother had informed regarding the Accused’s condition from childhood. The Accused also claimed, in response to Dr Cheok’s explanation why he did not believe that the Accused was distracted by hallucinations at the material time, that he had informed Dr Cheok that he heard voices in his head and talking to him as if it was through the outside.

23     With regards to the factual disputes concerning Dr Cheok’s report raised by the Accused, Dr Cheok, in his clarificatory report had stated that he stood by what he had written in his earlier report and explained that in expressing an expert opinion, information gathered is synthesized and analysed. As such, the relevant paragraphs setting his opinion are not records of factual information[note: 10].

24     I had accepted Dr Cheok’s explanation and clarification. In any case, the information concerning the Accused’s alcohol consumption pattern did not appear to have a material effect on the assessment of whether his mental condition had a contributory link to the offence by both Dr Jacob and Dr Cheok.

25     I was therefore inclined towards accepting the opinion of Dr Cheok over that of Dr Jacob, who did not appear to have fully considered the facts and circumstances in forming his opinion that the Accused was experiencing auditory hallucinations at the material time. In particular, he did not appear to have considered that the Accused had not reported any such hallucinations in his statements to the police. More importantly, Dr Jacob did not appear to have taken into account the fact that the Accused had admitted to reacting to the sudden re-routing of the Waze app which then led to the accident.

26     I also did not accept the Accused’s assertion that he had failed to report any such hallucinations in his statements to the police out of fear of the stigma associated with mental illness[note: 11]. Given the circumstances, withholding such a vital piece of information, assuming it was true, would have been an illogical and irrational course. I was, instead, of the view that the real reason why the Accused had failed to report that he had been distracted by hallucinations was because he was in fact not labouring under such hallucinations at the material time. My view was further buttressed by the fact that the Accused was able to react almost immediately to the sudden re-routing of the Waze app, something which I find difficult to reconcile with the Accused’s assertion that he was labouring under auditory hallucinations at the time.

27     I accepted therefore Dr Cheok’s opinion that there was no contributory link between the Accused’s psychiatric condition and the offence. Under s339(3) of the CPC, a court may make a MTO only if the psychiatric condition is a contributing factor for an accused person committing the offence. In the circumstances, I declined therefore to call for a MTO suitability report.

Application of the Chen Song sentencing framework

28     The sentencing framework for the offence has been comprehensively set out in the recent High Court decision in Chen Song. The framework is summarized at [134] as follows:

(a)     First, the court is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability”.

(b)     Second, based on the number of offence-specific factors present, the court is to determine whether the harm caused is “lesser harm” or “greater harm” and whether the culpability of the offender is “lower culpability” or “higher culpability” and thereafter arrive at the sentencing band the offence falls within. To recapitulate, “lesser harm” is caused, and the offender’s culpability is deemed as “lower culpability” where there are 0–1 harm or culpability factors respectively. “Greater harm” is caused, and the offender’s culpability is deemed as “higher culpability” where there are 2 or more harm or culpability factors respectively.

Band

Circumstances

Sentencing Range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability Or Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



(c)     Third, after determining the indicative sentencing band that the offence falls within, the court should identify an indicative starting point sentence within that range, taking into account: (a) all the primary harm factors and the culpability factors identified; and (b) the secondary harm factors (see [125] above).

(d)     Fourth, the court is to make adjustments to the starting point to take into account the usual gamut of offender-specific aggravating and mitigating factors.

29     The High Court also held at [137] that the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present.

30     Under the framework, the first step is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability”. The harm factors are classified into primary and secondary harm factors. The High Court had set out at [127] 3 broad primary harm factors pertain directly to the injury suffered and include:

(a)      Nature and location of the injury: This factor focuses on the precise nature and the location of the injury. This requires a consideration of: (i) the nature and severity of injury (eg, simple or complex and extent of injury, etc); (ii) the number of injuries; (iii) whether surgical intervention was necessary (or whether the injuries were treated conservatively); (iv) the disposition of the victim post- surgery (eg, general ward, high dependency or intensive care unit); and (v) the location of the injury (eg, vulnerable location).

(b)      Degree of permanence: This factor considers whether the injury or injuries caused to the victim are permanent or transient. Permanent injuries include loss of a limb or permanent privation of the sight of either eye or the hearing of either ear, etc.

(c)      Impact of injury: This factor contemplates the impact of the injury on the victim’s quality of life. Here, considerations of: (i) the duration of stay in the hospital/rehabilitation centre; (ii) duration of any hospitalisation/medical leave; (iii) ability to carry out daily tasks and maintain livelihood; and (iv) duration of rehabilitation (if any), are relevant.

31     The victim in the present case had suffered multiple fractures on his face, ribs, head/neck, hands and feet. He had also sustained haematoma on his chest wall, mild haemothorax and lung contusions. A minimally invasive procedure for the injection of anaesthesia to control the pain from the rib fractures was performed. The victim had been hospitalised for 24 days and was on hospitalisation leave thereafter for a further 127 days. He had had to wear a boot cast on the left lower limb and a resting writs splint on his right hand to facilitate healing. The victim did not, however, suffer any permanent injury.

32     The secondary harm factors, which are unrelated to the physical injuries suffered by the victim, but which nonetheless go towards the extent of harm caused, include:

(a)     potential harm; and

(b)     property damage.

33     The repair cost for the victim’s motorcycle was $4,400.

34     In terms of culpability factors, the High Court had set out at [131] a non-exhaustive list of factors as follows:

(a)     Any form of dangerous driving behaviour. For instance:

(i)       speeding;

(ii)       driving against traffic;

(iii)       driving when not fit to drive;

(iv)       driving under the influence of alcohol or drugs;

(v)       sleepy driving;

(vi)       driving while using a mobile phone;

(vii)       swerving in and out of lanes;

(viii)       using a vehicle in a dangerous fashion; and

(ix)       street racing.

(b)     Flouting of traffic rules and regulations. For instance:

(i)       failing to stop at a stop line;

(ii)       failing to conform to traffic signal;

(iii)       not forming up correctly to execute a turn;

(iv)       changing lanes across a set of double white lines/chevron markings; and

(v)       making an illegal U-turn/right turn.

(c)     High degree of carelessness: This is demonstrated where there was a prolonged or sustained period of inattention (as opposed to a momentary lapse of attention), and where the offender was deliberately cavalier about certain mitigatable risks. As stated in Sue Chang at [95], it would also be relevant to consider the extent to which the offender’s distraction was avoidable and the extent to which the offender’s mis-judgment was reasonable.

35     The High Court also held at [133] that “in assessing the offender’s culpability, it is also important for the sentencing court to be alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness. The conduct of the victim or third parties may in certain circumstances be considered at this juncture in the calibration of the offender’s culpability.”

36     Turning to the facts of the present case, the Accused was travelling at a speed of between 90 to 100 km/h at the material time. Parties were agreed that the speed limit at the material time was 90 km/h. The Accused had therefore been travelling marginally above the speed limit at the material time.

37     From the in-car video footage of the vehicle travelling behind the Accused at the material time, it was also apparent that the Accused had overtaken the lorry from the left in a sudden manner and close to an expressway exit. Vehicles travelling on the main carriage way would not have expected exiting vehicles to suddenly move in the manner the Accused’s vehicle did. That, in my view was a dangerous manoeuvre on the part of the Accused.

38     As for the usage of the Waze app, the court recognised that the use of navigation apps or other similar in-car navigation systems was a part of modern driving. The onus, however, remained on the driver to maintain proper attention on the traffic conditions. Any situation arising from the use of navigation apps or systems cannot be justification for any form of unsafe or careless driving. In the present case, the Accused had failed to pay adequate attention to the other vehicles on the road and had reacted in a dangerous manner to the sudden re-routing on the Waze app. This, in my view, was a relevant culpability factor.

39     Based on the above, I was of the view that there were clearly 2 harm factors present. The injuries sustained by the victim was serious and extensive. The impact of the injuries on the victim was also severe. As for the culpability factors, while there were 2, namely driving above the speed limit and reacting in an unsafe manner whilst using the Waze app, I was of the view that they were of a limited degree. The Accused was driving at a speed that was marginally above the speed limit at the material time. Although the Accused had reacted in an unsafe manner to the Waze app re-route, it was also apparent from the in-car video footage that the victim had changed lanes without signaling. This was not disputed by the Prosecution.

40     Both the Prosecution and the Defence were of the view that the present case falls under Band 2 of the Chen Song framework. The Prosecution has situated the case at the upper-middle portion while the Defence had submitted that it should be at the lowest end.

41     Based on the harm and culpability factors in the present case, I was of the view that the indicative starting point sentence should be 8 months imprisonment.

42     The Accused had pleaded guilty, albeit on the first day of trial. Under the SAP PG Guidelines, a sentencing discount of up to 5% may be applied. He is also untraced. As for the Accused’s psychiatric condition, I was of the view that no mitigatory weight should be attached in view of my finding that there was no contributory link with the offence.

43     As for the period of DQ, pursuant to s 65(6)(d) of the RTA a mandatory 5-year disqualification period applies “unless the court for special reasons thinks fit to not order or to order otherwise”. In Lee Shin Nan v Public Prosecutor [2023] SGHC 354, it was held (at [79]) that special reasons will generally be found only if the court is satisfied that the offender drove in circumstances that reasonably suggest:

(a)     it was necessary to do so in order to avoid other likely and serious harm or danger; and

(b)     there was no reasonable alternative way to achieve this end.

44     No such circumstances existed in our present case. I was also of the view that there were no other special reasons warranting a departure from the mandatory period of DQ under s 65(6)(d).

Sentence Imposed

45     In the circumstances, the Accused was sentenced to 7 months and 2 weeks imprisonment and 5 years’ DQ with effect from the date of release.

46     The Accused being dissatisfied with the decision had lodged an appeal against his sentence. He is currently on bail pending appeal.

[note: 1]NE for FM(Mitigation & Sentencing) on 8 July 2024 at page 11.

[note: 2]Report by Dr Jacob dated 26 June 2023 at [21].

[note: 3]Report by Dr Jacob dated 26 June 2023 at [14].

[note: 4]Report by Dr Jacob dated 26 June 2023 at [16] and [17].

[note: 5]Report by Dr Jacob dated 26 June 2023 at [5].

[note: 6]Report by Dr Cheok dated 8 May 2024 at [13].

[note: 7]Report by Dr Cheok dated 8 May 2024 at [10].

[note: 8]Report by Dr Cheok dated 8 May 2024 at [16] and [19]..

[note: 9]See written mitigation pleas dated 3 & 23 July 2024.

[note: 10]See Clarification Report by Dr Cheok dated 12 August 2024.

[note: 11]See 2nd mitigation plea dated 23 July 2024 at [17].

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Public Prosecutor v Ge Xin and others
[2024] SGMC 78

Case Number:Magistrate Arrest Case No 902315 of 2024 & Ors, Magistrate Summon Charge 900588 of 2024 & Ors, Magistrate Summon Charge 900617 of 2024 & Ors
Decision Date:08 November 2024
Tribunal/Court:Magistrate's Court
Coram: Ong Luan Tze
Counsel Name(s): Mr Christopher Ong, Mr Norman Yew and Mr Lee Da Zhuan (Attorney-General's Chambers) for the Public Prosecutor; Mr Dhillon Surinder Singh (Dhillon & Panoo LLC) for the Accused.
Parties: Public Prosecutor — Ge Xin — MT Gadget+ Pte Ltd — Grandnew Pte Ltd

Criminal Law – Statutory offences – Copyright Act

Criminal Procedure And Sentencing – Sentencing

8 November 2024

District Judge Ong Luan Tze:

1       This was the first case to be dealt with for copyright infringement offences under s 150(1) of the Copyright Act 2021 (“CA”), involving the commercial dealing of illicit streaming devices.

2       Mr Ge Xin (“B1”) was the registered owner and director of MT Gadget+ Pte Ltd (“MT Gadget”), while his wife was the registered owner and sleeping director of Grandnew Pte Ltd (“Grandnew”). At all material times, B1 was the directing mind and controller of the business of MT Gadget and Grandnew. In these court proceedings, B1 was also the representative for MT Gadget and Grandnew.

3       MT Gadget pleaded guilty to infringing the copyright in the following works by dealing commercially in the following illicit streaming devices (“ISDs”) under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA, with another eight similar counts taken into consideration for sentencing:

Charge

Work

Copyright owner

Device

MSC-900589-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Football Association Premier League (“FAPL”)

MT TV BOX installed with Cloud TV

(2 units)

MSC-900590-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

FAPL

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

MSC-900591-2024

Discovery Channel

Discovery, Inc

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

MSC-900592-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)



4       Grandnew pleaded guilty to infringing the copyright in the following works by dealing commercially in the following ISDs under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA, with another eight similar counts taken into consideration for sentencing:

Charge

Work

Copyright owner

Device

MSC-900617-2024

Raya and the Last Dragon

Disney Ltd

A95X F3 AIR installed with Bee TV

(17 units)

MSC-900618-2024

Adam Project

Netflix Ltd

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

MSC-900619-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

MXQPRO 4K installed with My family Cinema

(15 units)

MSC-900622-2024

Raya and the Last Dragon

Disney Ltd

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)



5       As an officer of these two businesses, B1 pleaded guilty to the corresponding eight charges of having connived in the commission of these offences by MT Gadget and Grandnew, under s 500(1)(a) read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA, with another 16 similar counts taken into consideration for sentencing.

6       Having considered the facts of the case and the submissions from all parties, I imposed the following sentences.

MT Gadget

Charge

Device

Sentence

MSC-900589-2024

MT TV BOX installed with Cloud TV

(2 units)

$50,000

MSC-900590-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

$50,000

MSC-900591-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

$60,000

MSC-900592-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

$40,000

Total sentence

$200,000



Grandnew

Charge

Device

Sentence

MSC-900617-2024

A95X F3 AIR installed with Bee TV

(17 units)

$35,000

MSC-900618-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

$15,000

MSC-900619-2024

MXQPRO 4K installed with My family Cinema

(15 units)

$35,000

MSC-900622-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

$15,000

Total sentence

$100,000



Ge Xin (“B1”)

Charge

Device

Sentence

MAC 902328-2024

MT TV BOX installed with Cloud TV

(2 units)

2 months’ imprisonment

MAC 902329-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

2 months’ imprisonment

(consecutive)

MAC 902330-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902331-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

1 month’s imprisonment

MAC 902315-2024

A95X F3 AIR installed with Bee TV

(17 units)

4 months’ imprisonment

(consecutive)

MAC 902316-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902317-2024

MXQPRO 4K installed with My family Cinema

(15 units)

4 months’ imprisonment

MAC 902320-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

2 months’ imprisonment

Total sentence

10 months’ imprisonment



7       B1 commenced serving sentence from 24 October 2024. No appeal was filed.

8       Given the importance of this case as the first time an offender has been dealt with under s 150(1) of the CA, I now set out the full grounds for my decision in what I hope will be the start of the conversation to rationalize the operation of this provision and area of law.

Facts

9       The facts in support of the charge are set out in the Statement of Facts, which were admitted without qualification by the three accused persons.

10     Both MT Gadget and Grandnew operated from shop units at Sim Lim Square, offering for sale various electronic products, including various brands and models of ISDs. B1 was the directing mind and controller of the business of both MT Gadget and Grandnew, and he was also the one who incorporated the two businesses.

11     MT Gadget and Grandnew operated through a total of four employees who were employed by B1.

ISDs offered for sale

12     ISDs are devices that are typically pre-installed with computer programs to facilitate unauthorised access to copyrighted work, such as live television channels and video-on-demand content (“infringing apps”). They allow users to gain unauthorised access to multiple copyrighted works owned by multiple copyright owners repeatedly.

13     In particular, the ISDs offered for sale by MT Gadget and Grandnew were capable of facilitating access to copyrighted works without the following copyright owners’ authority:

MT Gadget

Grandnew

Disney Ltd

Warner Bros. Entertainment Inc

Discovery, Inc

Netflix Ltd

FAPL

Paramount Pictures Corporation

 



14     B1 was the one who decided to sell ISDs through MT Gadget and Grandnew, and he was solely responsible for the procurement and receipt of the said ISDs. B1 secured the supply of ISDs from an overseas supplier.

15     At all material times, B1, MT Gadget and Grandnew knew that the ISDs offered for sale were (i) capable of facilitating access to works communicated to the public without the authority of their copyright owners by streaming such copyrighted content; and (ii) had only a limited commercially significant purpose or use other than that capability.

16     At B1’s instructions, MT Gadget and Grandnew offered the ISDs for sale and told their customers that the ISDs would allow them to watch copyrighted works without incurring the costs of watching the same works through legitimate sources provided with the authorisation of the copyright owners.

Warning letters and seizure

17     In January 2020, October 2020 and February 2021, Grandnew received a total of three letters from FAPL warning Grandnew to desist from selling ISDs as they infringed FAPL’s copyright. Although B1 knew about the contents of each letter, B1 continued to authorise Grandnew and MT Gadget to sell the ISDs.

18     On 4 October 2022, a raid was conducted by officers of the Intellectual Property Rights Branch (“IPRB”) of the Singapore Police Force at the shop units of MT Gadget and Grandnew. During the raid, IPRB seized a total of 499 ISDs. Out of these, there were 239 operational ISDs seized from MT Gadget (9 of which were installed with infringing apps), and 91 operational ISDs seized from Grandnew (40 of which were installed with infringing apps). 169 of the ISDs seized were not operational.

19     Before the raid, these ISDs were offered by MT Gadget and Grandnew for sale.

20     With regard to MT Gadget, there were two employees involved in the sale of ISDs. MT Gadget began offering ISDs for sale in early 2018. The selling price of each ISD was about $115 - $220 and the profit margin for each ISD was about $43 - $80. Therefore, the total profit that MT Gadget would have made if it had sold all its operational ISDs which had been seized was about $10,277 - $19,120. According to B1, MT Gadget earned a monthly profit of about $5,000 from selling ISDs.

21     With regard to Grandnew, there were two employees involved in the sale of ISDs. Grandnew began offering ISDs for sale in early 2018. The selling price of each ISD was about $99 - $220 and the profit margin for each ISD was about $43 - $80. Therefore, the total profit that Grandnew would have made if it had sold all its operational ISDs which had been seized was about $3,913 - $7,280. According to B1, Grandnew earned a monthly profit of about $5,000 from selling ISDs.

22     Neither B1, MT Gadget nor Grandnew made any compensation to any copyright owner for the infringement of their copyrights arising from their commercial dealing in ISDs.

Facts pertaining to the charges involving ISDs seized from MT Gadget

23     By virtue of the foregoing, on or about 4 October 2022, at MT Gadget’s shop unit located at 1 Rochor Canal Road, Sim Lim Square #02-72, Singapore 188504, MT Gadget had infringed the copyright in the following works by dealing commercially in the following units of ISDs capable of facilitating access to the said works:

Charge

Work

Copyright owner

Device

MSC-900589-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Football Association Premier League (“FAPL”)

MT TV BOX installed with Cloud TV

(2 units)

MSC-900590-2024

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

FAPL

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

MSC-900591-2024

Discovery Channel

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Discovery, Inc

Disney

Warner Bros.

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

MSC-900592-2024

Fantastic Beasts: The Secrets of Dumbledore

Raya and the Last Dragon

Discovery Channel

Tottenham Hotspur FC v Newcastle United FC (23 Oct 2022)

Aston Villa FC v Chelsea FC (23 May 2021)

Liverpool FC v Crystal Palace FC (23 May 2021)

Warner Bros.

Disney

Discovery, Inc

FAPL

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)



24     MT Gadget infringed copyright by offering the said devices for sale by way of trade, knowing that the said devices were capable of facilitating access to works communicated to the public without the authority of their copyright owners and had only a limited commercially significant use other than that capability. MT Gadget had therefore committed four counts of the offence under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA.

25     These offences were committed with the connivance of B1, who was an officer of the company. B1 had therefore committed four counts of the offence under s 500 read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA.

Facts pertaining to the charges involving ISDs seized from Grandnew

26     By virtue of the foregoing, on or about 4 October 2022, at Grandnew’s shop unit located at 1 Rochor Canal Road, Sim Lim Square #02-87, Singapore 188504, Grandnew had infringed the copyright in the following works by dealing commercially in the following units of ISDs capable of facilitating access to the said works:

Charge

Work

Copyright owner

Device

MSC-900617-2024

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Disney Ltd

Warner Bros

A95X F3 AIR installed with Bee TV

(17 units)

MSC-900618-2024

Adam Project

Discovery Channel

Top Gun: Maverick

Tottenham Hotsput FC v Newcastle United FC (23 Oct 22)

Aston Villa FC v Chelsea FC (23 May 21)

Liverpool FC v Crystal Palace FC (23 May 21)

Netflix Ltd

Discovery Inc

Paramount Pictures

FAPL

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

MSC-900619-2024

Fantastic Beasts: The Secrets of Dumbledore

Warner Bros. Entertainment Inc

Disney

Discovery Inc

MXQPRO 4K installed with My family Cinema

(15 units)

MSC-900622-2024

Raya and the Last Dragon

Fantastic Beasts: The Secrets of Dumbledore

Discovery Channel

Disney

Warner Bros

Discovery Inc

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)



27     Grandnew infringed copyright by offering the said devices for sale by way of trade, knowing that the said devices were capable of facilitating access to works communicated to the public without the authority of their copyright owners and had only a limited commercially significant use other than that capability. Grandnew had therefore committed four counts of the offence under s 150(1) read with s 445(b) and punishable under s 447(2)(b) of the CA.

28     These offences were committed with the connivance of B1, who was an officer of the company by virtue of his purporting to act in such capacity as a director of Grandnew. B1 had therefore committed four counts of the offence under s 500 read with s 150(1) and s 445(b) and punishable under s 447(2)(a) of the CA.

Antecedents

29     The accused persons were untraced.

Prosecution’s Address on Sentence

30     The Prosecution submitted for the following sentences:

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31     Relying on the case of PP v Goik Soon Guan [2015] 2 SLR 655 (“Goik Soon Guan”) where the High Court had observed that general deterrence was the primary sentencing consideration in cases of trademark infringement, the Prosecution similarly submitted that the same considerations applied in cases of copyright infringement. Therefore general deterrence should be the dominant sentencing consideration in the present case.

32     In particular, the Prosecution highlighted that the new offences under s 150(1) of the CA had been enacted by Parliament specifically to tackle the commercial proliferation of ISDs in Singapore. Deterrent sentences would signal clearly to the industry and members of the public that commercial dealing in ISDs carried serious legal consequences and this would also be consistent with Singapore efforts to strengthen our position as a global intellectual property hub.

33     The Prosecution also pointed out that ISDs had the potential to facilitate cybercrime, as such devices could contain malware and form botnets (networks of compromised devices that could be controlled by criminals to perform malicious tasks). However, the Prosecution confirmed that there was no indication in the present case of any such cybercrime potential being realised in relation to the seized devices.

34     In the absence of any sentencing guidance for the new offence under s 150(1) of the CA, the Prosecution submitted that reference could be made to the sentencing guidelines for offences under s 49(c) of the Trade Marks Act 1998 (“TMA”), and as set out in Goik Soon Guan. Section 49(c) involves the possession for the purpose of trade or manufacture any goods to which a registered trade mark is falsely applied. Both offences involve the infringement of intellectual property rights for commercial purposes and share the same prescribed maximum punishments.

35     In this respect, the Prosecution referred to the following two-step framework set out in Goik Soon Guan at [31]:

(a)     Consider the nature and extent of the infringements, and the manner in which the infringements were carried out; and

(b)     Examine whether there were any other relevant aggravating or mitigating factors.

36     Under the Goik Soon Guan framework, the court should also look at the offender’s level of involvement to determine the appropriate starting sentence. The ranges below applied to offenders who pleaded guilty.

\"\"

37     With regard to the appropriate fines to be imposed on MT Gadget and Grandnew, the Prosecution referred to the case of PP v Jia Xiaofeng and Synnex Trading Pte Ltd [2019] SGMC 73 (“Synnex”), where the company and its director pleaded guilty to charges under:

(a)     Section 136(3A) of the Copyright Act 2006 (“CA 2006”) for authorising customers to use ISDs to make infringing copies of shows; and

(b)     Section 136(4) of the CA 2006 for possessing ISDs which were articles designed to make infringing copies of shows.

38     In Synnex, 108 ISDs were involved and the global fine imposed on the company was $160,800. The profit margin per ISD was about $114 and the total estimated profit margin for all the ISDs was $12,312.

39     Applying the above guidelines, the Prosecution submitted that B1’s level of involvement was moderate as he owned and operated MT Gadget and Grandnew. In calibrating the specific sentences, the Prosecution had regard to the following factors:

(a)     Harm caused by each ISD was generally higher than the harm caused by each infringing article under s 49(c) of the TMA, as ISDs enabled multiple infringements of copyright.

(b)     B1, MT Gadget and Grandnew committed the offences in blatant disregard of the law. B1 continued to offer the ISDs for sale through MT Gadget and Grandnew despite receiving warning letters from FAPL.

(c)     There were four employees working under MT Gadget and Grandnew.

(d)     A total of six copyright holders’ copyrights had been infringed as a result of B1’s business.

(e)     Although s 150(1) of the CA only came into force on 22 November 2021, the fact was that B1, through MT Gadget and Grandnew, had commercially dealt with ISDs for a total of four years since early 2018.

(f)     A total of 499 ISDs were seized, with 330 of them being the subject of the charges.

(g)     Based on the operational ISDs seized, B1 would earn a total profit of $10,277 to $19,120 through MT Gadget, and $3,913 to $7,280 through Grandnew.

(h)     According to B1, he made monthly profits of about $10,000 from the sale of ISDs in MT Gadget and Grandnew.

(i)     No compensation had been made to any copyright holder.

40     With regard to the fines, the Prosecution also pointed out that the proposed global fines had been calibrated to be in line with the global fine imposed in Synnex.

Mitigation

41     In mitigation, the Defence highlighted that B1 had not supplied the devices to any other suppliers or otherwise further contributed to their distribution. His role was largely limited to simply purchasing the devices. The Defence also stressed that B1 was just a small-time operator who was not involved in any sophisticated business plan set out to avoid detection.

42     B1, MT Gadget and Grandnew were all untraced and B1 in particular had cooperated with the investigations and indicated at an early stage his intention to plead guilty.

43     The Defence was generally in agreement that the framework as set out in Goik Soon Guan was relevant to the present case, and submitted that B1’s level of involvement should be pegged at the lower end of the moderate range. The manner in which the infringements was carried was not particularly sophisticated and there was no attempt to conceal the business operations. It was also pointed out that there were only a total of four employees running the two businesses and the profit margins involved were not high. There was no involvement of a syndicate, and the duration of offending should be pegged from the time s 150 of the CA came into force i.e. about 11 months prior to the raid.

44     Based on the above, the Defence urged the court to impose the following sentences:

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45     The Defence asked for only two of the sentences to run consecutively, as all of the offences arose essentially from the same business operation and there were no exceptional circumstances warranting the ordering of more than two of the sentences to run consecutively.

Decision on Sentence

46     There was no doubt in my mind that the dominant sentencing principle in the present case was that of deterrence, both specific and general. Strong intellectual property protection is an integral component of Singapore’s economic and industrial policy, and vital to our economic success.[note: 1] Therefore, the general signal must be that such copyright offences will be taken seriously and offenders should not expect to get away with merely a slap on the wrist.

47     In the present case, Grandnew had already received three previous warnings from a copyright owner (FAPL) and B1 knew about these warnings. Despite this, he continued to authorise MT Gadget and Grandnew to sell the ISDs, demonstrating a deliberateness and persistence which, in my view, invited the application of the principle of specific deterrence as well.[note: 2]

48     While there was no specific guidance from the High Court with regard to sentencing for an offence under s 150(1) of the CA, the infringement of intellectual property rights was not a novel concept and guidance could be discerned from similar cases in the past. I agreed with the Prosecution that Goik Soon Guan was one such case.

49      Goik Soon Guan dealt with the offence under s 49(c) of the TMA, involving the possession for the purpose of trade or manufacture any goods to which a registered trade mark is falsely applied. This is similar in principle to an offence under s 150(1) of the CA, involving the infringement of intellectual property rights for commercial purposes. The main difference is that while s 49(c) of the TMA involves physical goods (such as bedding products as in Goik Soon Guan), s 150(1) involves devices and services facilitating access to copyrighted works. I accepted that the principles expounded in Goik Soon Guan would be of relevance to the present case.

Sentencing framework in Goik Soon Guan

50     The sentencing framework set out in Goik Soon Guan for offences under section 49(c) of the TMA was to (a) first, consider the nature and extent of the infringements, and the manner in which the infringements were carried out and (b) second, examine whether there were any other relevant aggravating or mitigating factors (see [31] of Goik Soon Guan).

51     In applying the aforementioned framework, a good starting point was to consider the offender’s level of involvement in the whole operation. The three categories of involvement could be found at [32] to [35] of Goik Soon Guan and were also re-affirmed and summarised in [12] of Tan Wei v Public Prosecutor [2016] SGHC 72 (“Tan Wei”), as reproduced below:

(a)      low involvement, where the offender was merely an employee (see Goik Soon Guan at [35]);

(b)      moderate involvement, where the offender owned and operated the business, but the scale of the business was generally quite small (eg, a small shop) (see Goik Soon Guan at [34]); and

(c)      high involvement, where the offender ran a relatively large scale or complex operation, and/or was heavily involved in many levels of the “trade or manufacture” of counterfeit products, including manufacturing or sourcing for the products, distributing the products to other retailers and/or selling the infringing products (see Goik Soon Guan at [33]).

52     Considering only the degree of involvement of the offender and not the number of infringing articles concerned, the starting point and sentencing range per charge (Tan Wei at [18]) was as follows (Goik at [38]):

(a)      Low involvement: two to four months’ imprisonment;

(b)      Moderate involvement: six to seven months’ imprisonment; and

(c)      High involvement: 10 to 20 months’ imprisonment.

53     Having determined the starting point, the sentences should then be calibrated upwards or downwards after taking into account the surrounding factors including (see [14] of Tan Wei):

(a)     Size of offender’s business;

(b)     Number of employees;

(c)     Financial figures (revenue and profits);

(d)     Whether a syndicate was involved;

(e)     Number of infringing articles;

(f)     Nature and value of infringing articles;

(g)     Duration of infringement;

(h)     Manner of infringement and degree of permanence (e.g. whether offender had shop front); and

(i)     Whether compensation was made.

54     In particular, the High Court in Goik Soon Guan had also observed at [36] that the custodial threshold would be crossed when an offender had some sort of permanence in dealing with the infringing articles e.g. a shop front.

55     There was no dispute in the present case that the custodial threshold had been crossed. B1 had operated the businesses of MT Gadget and Grandnew from two shop units, and these two businesses had been selling the ISDs in question for at least 11 months. A mere fine would have been clearly insufficient.

56     In terms of the level of involvement of B1, I agreed with the Prosecution that this should be pegged at the moderate level under the Goik Soon Guan framework. B1 owned and operated two different businesses from two different shop units. Under the framework, the starting point per charge was therefore six to seven months’ imprisonment.

57     In calibrating the appropriate length of the custodial terms for B1, and the fines for MT Gadget and Grandnew, I took the following factors into consideration.

(a)     The number of infringing devices per charge was small, and certainly not in the usual range for a charge under a s 49(c) of the TMA, which could run into hundreds or even thousands. However, this must be viewed against the fact that the harm caused by each infringing ISD was generally more serious than the harm caused by each infringing article. A single physical infringing article usually represents a single infringement, whereas a single infringing ISD enables multiple infringements of copyright because the user can use it to view multiple copyrighted works repeatedly. Indeed, there would appear to be no limit to the number of times a work can be infringed with a single ISD.

(b)     The offences had been committed in blatant disregard of the law, and despite B1 having notice of three previous warning letters from FAPL.

(c)     B1 employed a total of four employees who assisted MT Gadget and Grandnew in the selling of the ISDs.

(d)     The offending period, during which B1, through MT Gadget and Grandnew, had commercially dealt with ISDs in contravention of s 150(1) of the CA, was about 11 months. Although I noted that in fact MT Gadget and Grandnew had been selling ISDs since 2018, this was before s 150(1) of the CA came into force on 22 November 2021. Since the offence had not been created then, I did not give weight to this period before November 2021.

(e)     The charges against B1, MT Gadget and Grandnew involved a total of 330 operational ISDs. This included the charges which were taken into consideration. In particular, the charges against MT Gadget involved 239 ISD, while the charges against Grandnew involved 91 ISDs.

(f)     The profits involved based on the operational ISDs seized ranged from $10,277 to $19,120 for MT Gadget, and $3,913 to $7,280 for Grandnew. In terms of monthly profits from the sales of ISDs, this would be about $5,000 for each business.

(g)     No compensation had been made to any copyright holder.

(h)     B1, MT Gadget and Grandnew were all untraced and chose to plead guilty at an early stage. B1 had also cooperated with the investigations.

58     In addition, the Prosecution had pointed out that some weight ought to be given to the fact that some of these devices had been confirmed to have infringed on more than one copyright holder’s work. (See paragraphs 17 and 20 of the Statement of Facts). Upon my query, the Prosecution explained that the works as set out in the Statement of Facts were confirmed by the experts who had analysed the ISD based on certain parameters. That said, it remained true that these devices were not limited to these works and were capable of facilitating access to other works as well.

59     I had some difficulty deciding what weight, if any, ought to be accorded to the fact that some of these ISDs had been confirmed to have infringed more than one copyright holder’s work. Firstly, the expert reports were not before the court and no further details of their contents had been provided. It was not clear what parameters the experts had used for their analysis, and whether these parameters were the same for the examination of all the ISDs under question. Secondly, it already appeared to be an element of the offence that the device itself should be capable of facilitating access to more than one work.[note: 3] This was also one of the key sentencing considerations in the present case – that the ISD as compared to a physical article under s 49(c) of the TA, had the potential to involve multiple infringements involving different copyrighted works and owners. If in fact there was no known limit to how many copyright holders could be potentially affected by a single ISD and this was already taken into account for the purpose of sentencing, then the fact that an expert analysis had confirmed that at least an x number of copyright holders’ had been affected in any particular charge appeared to lose much of its significance. Thirdly, the charges only reflected one copyright holder per charge.

60     Therefore, while I relied on the fact that the ISDs were all capable of facilitating access to multiple works involving multiple copyright holders, I did not give specific weight to the known number of copyright holders per charge when calibrating the individual sentences. If this is a factor which the Prosecution wants to continue pursuing for future cases, perhaps it would be helpful to provide for the court’s reference more details regarding the expert analysis, how the conclusions were arrived at and how this should be viewed against the general backdrop that an ISD can potentially facilitate access to works involving an unlimited number of copyright holders.

Sentence imposed on B1

61     Based on the above considerations, I took the view that the starting points as set out in Goik Soon Guan for a moderate level of involvement could be calibrated downwards, with adjustments made based on the number of ISDs per charge. With regard to the global sentence, I was of the view that it would be appropriate to run a total of four charges consecutively, involving two from each business. This is having taken into account the individual sentences, as well as the fact that there were 16 other charges taken into consideration. The global sentence imposed on B1 is a term of 10 months’ imprisonment, the details of which are set out below:

Charge

Device

Sentence

MAC 902328-2024

MT TV BOX installed with Cloud TV

(2 units)

2 months’ imprisonment

MAC 902329-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

2 months’ imprisonment

(consecutive)

MAC 902330-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902331-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

1 month’s imprisonment

MAC 902315-2024

A95X F3 AIR installed with Bee TV

(17 units)

4 months’ imprisonment

(consecutive)

MAC 902316-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

2 months’ imprisonment

(consecutive)

MAC 902317-2024

MXQPRO 4K installed with My family Cinema

(15 units)

4 months’ imprisonment

MAC 902320-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

2 months’ imprisonment

Total sentence

10 months’ imprisonment



Sentences imposed on MT Gadget and Grandnew

62     I accepted that the global fine imposed in Synnex would be a good reference point, as the case similarly involved copyright infringements and the possession of ISDs. In Synnex, 108 ISDs were involved and the global fine imposed on the company was $160,800. Based on the number of ISDs seized, the total fine imposed on MT Gadget (involving 239 ISDs) should be more than that imposed in Synnex, while the total fine imposed on Grandnew (91 ISDs) should be less.

63     Based on the above, I calibrated the fines as set out below.

MT Gadget

Charge

Device

Sentence

MSC-900589-2024

MT TV BOX installed with Cloud TV

(2 units)

$50,000

MSC-900590-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(2 units)

$50,000

MSC-900591-2024

SVI CLOUD 3PRO installed with LUCA TV

(3 units)

$60,000

MSC-900592-2024

SVI CLOUD 8P installed with Yoghurt Malaysia

(1 unit)

$40,000

Total sentence

$200,000



Grandnew

Charge

Device

Sentence

MSC-900617-2024

A95X F3 AIR installed with Bee TV

(17 units)

$35,000

MSC-900618-2024

GLOBAL AI TV MEDIA PLAYER installed with 3FNF VOD

(3 units)

$15,000

MSC-900619-2024

MXQPRO 4K installed with My family Cinema

(15 units)

$35,000

MSC-900622-2024

SVI CLOUD M8S PRO W installed with Yoghurt TV

(3 units)

$15,000

Total sentence

$100,000



64     I was satisfied that the resulting global sentences for B1, MT Gadget and Grandnew were in line with the totality principle, and an adequate and necessary reflection of their culpability.

Conclusion

65     The market for on-demand digital entertainment is poised to grow, but with increased accessibility comes the risk of copyright infringement. Protecting intellectual property rights in the digital realm requires a multi-faceted approach, including legal action. While the courts must and will always consider the individual circumstances in sentencing, a deterrent stance should be adopted as a starting point for copyright offences. This approach is crucial in order to maintain Singapore’s status as a global hub for intellectual property.

66     In light of the nature of these offences, the circumstances surrounding the present case and the considerations pertaining to the accused persons, I was satisfied that the aforementioned sentences were appropriate and imposed them accordingly.

[note: 1]See Goik Soon Guan at [18].

[note: 2]See PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [18].

[note: 3]The relevant provision under s 150(1) reads: “… copyright in a work is infringed by a person (X) if (a)the work is communicated to the public without the copyright owner’s authority;(b)X does any of the following acts (whether before or after the work is so communicated):ii.deals commercially in a device;(c)the device … is capable of facilitating access to the work; and(d)X knows or ought reasonably to know that the device… (i) is capable of facilitating access to works communicated to the public without the authority of their copyright owners; and (ii) has only a limited commercially significant purpose or use other than that capability. (emphasis added)

"},{"tags":["Contract – Breach – Whether the settlement agreement was breached","Contract – Settlement agreements – Whether the settlement agreement precluded a claim based on the tort of waste","Landlord And Tenant – Agreements for leases – Conflicting evidence on whether a written tenancy agreement was stamped in accordance with section 52 of the Stamp Duties Act 1929 (2021 Rev Ed)","Landlord And Tenant – Agreements for leases – Whether section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) precludes a party from relying on an oral tenancy agreement that has not been duly stamped","Landlord And Tenant – Covenants – Whether there is an implied obligation at law for a tenant to reinstate the premises","Landlord And Tenant – Covenants – Whether there is a difference between an obligation to yield up the premises in good and tenantable repair and condition, and an obligation to reinstate the premises","Tort – Tort of waste – Whether an omission to restore the premises attracts liability for voluntary waste","Tort – Tort of waste – Whether the removal of fixtures constitutes an act of voluntary waste","Tort – Tort of waste – Whether the tort of voluntary waste applies in Singapore"],"date":"2024-09-16","court":"District Cout","case-number":"Suit No 288 of 2021","title":"Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.","citation":"[2024] SGDC 232","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32462-SSP.xml","counsel":["Chu Hua Yi and Goh Jia Jie (FC Legal Asia LLC) for the Plaintiff","Ling Daw Hoang Philip, Lim Haan Hui and Nur Afiqah Binte Mohamed Ashefjah (Wong Tan & Molly Lim LLC) for the Defendant."],"timestamp":"2024-11-16T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.

Lian Hoe Leong & Brothers Pte. Ltd. v Texas Petrochemical Asia Pacific Pte. Ltd.
[2024] SGDC 232

Case Number:Suit No 288 of 2021
Decision Date:16 September 2024
Tribunal/Court:District Cout
Coram: Samuel Wee
Counsel Name(s): Chu Hua Yi and Goh Jia Jie (FC Legal Asia LLC) for the Plaintiff; Ling Daw Hoang Philip, Lim Haan Hui and Nur Afiqah Binte Mohamed Ashefjah (Wong Tan & Molly Lim LLC) for the Defendant.
Parties: Lian Hoe Leong & Brothers Pte. Ltd. — Texas Petrochemical Asia Pacific Pte. Ltd.

Contract – Breach – Whether the settlement agreement was breached

Contract – Settlement agreements – Whether the settlement agreement precluded a claim based on the tort of waste

Landlord And Tenant – Agreements for leases – Conflicting evidence on whether a written tenancy agreement was stamped in accordance with section 52 of the Stamp Duties Act 1929 (2021 Rev Ed)

Landlord And Tenant – Agreements for leases – Whether section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) precludes a party from relying on an oral tenancy agreement that has not been duly stamped

Landlord And Tenant – Covenants – Whether there is an implied obligation at law for a tenant to reinstate the premises

Landlord And Tenant – Covenants – Whether there is a difference between an obligation to yield up the premises in good and tenantable repair and condition, and an obligation to reinstate the premises

Tort – Tort of waste – Whether an omission to restore the premises attracts liability for voluntary waste

Tort – Tort of waste – Whether the removal of fixtures constitutes an act of voluntary waste

Tort – Tort of waste – Whether the tort of voluntary waste applies in Singapore

16 September 2024

Judgment reserved.

District Judge Samuel Wee:

Introduction

1       The claims in this action relate to alleged damage caused by the Defendant when it vacated the Plaintiff’s property at International Road (“IR Premises”). Underlying this dispute was a fractious family whose adversarial camps were at loggerheads.[note: 1] Determining the scope of the parties’ rights and obligations therefore required an understanding of the background leading up to the dispute.

Background Facts

The genesis of the Plaintiff and the Defendant

2       Sometime in the 1950s, Mr Lim Kong Seng (the “Father”) started a business as a sole proprietor trading as “Lian Hoe Leong”, which over time became involved in the wholesale and trading of petrochemical products.[note: 2]

3       The Father and his wife had many children. The names of the Father’s relevant children are listed in order of seniority, along with details about their own respective family members who are involved in the proceedings:[note: 3]

(a)     Mr Lim Tiong Teek (“Teek”), whose daughter, Ms Lim Pei Pei (“Beth”), was previously employed by the Plaintiff; and whose son-in-law, Ang Chin Teong (“Ang”), is currently an employee of the Defendant and is married to one of Teek’s other daughters.

(b)     Mr Lim Tiong San (“San”), who has passed away. San’s family members are: (i) his wife, Mdm Low Siang Eng (“Low”); (ii) his daughter, Ms Kelly Lim (“Kelly”); and (iii) his son, Mr Louis Lim (“Louis”).

(c)     Ms Lim Poh Eng (“Nancy”), who was previously employed as the finance manager of both the Plaintiff and the Defendant.[note: 4]

(d)     Mr Lim Tiong Beng (“Tony”), who is presently the managing director of the Plaintiff, and was previously a director of both the Plaintiff and the Defendant. Tony’s son, Mr Lin Xiaoxian (“Darren”), is presently a director of the Plaintiff.

(e)     Mr Lim Tong Yam (“George”), who is presently the managing director of the Defendant, and was previously the managing director of both the Plaintiff and the Defendant. George’s son, Mr Lim Xiao Wei Leroy (“Leroy”), is presently a director of the Defendant.

Tony and George are the leading members of the two adversarial factions.

4       The Father suffered a stroke around 1982. As a result, the Plaintiff was incorporated to take over the business, and was operated and managed as a family business.[note: 5]

5       Over the years, the entire shareholding of the Plaintiff remained within the members of the Father’s family, although the shareholding composition varied. For the purposes of these proceedings, the relevant shareholding relates to the period in early 2020 when Teek, George and Tony each owned 25% of the shares, while the remaining 25% was divided amongst San’s family (Low 12.5%, Kelly 7.5% and Louis 5%).[note: 6]

6       In 2002, the Defendant company was incorporated and served as a vehicle for the development of the Plaintiff’s own brand of lubricants.[note: 7] Initially, the Plaintiff was the Defendant’s majority shareholder with other minority shareholders involved. The Plaintiff subsequently bought out the other shareholders and become the sole shareholder of the Defendant sometime around May 2004.[note: 8] The Defendant company was hence seen as an extension of the Plaintiff’s business, with the operations and management of both companies undertaken in tandem.[note: 9] In this regard, George was the managing director of both companies, [note: 10] and Tony was a director of both as well.[note: 11]

The purchase of the IR Premises by the Plaintiff and occupancy of the Carved-Out Area by the Defendant

7       Prior to 2003, the Plaintiff’s business operated out of Loyang Offshore Supply Base (“Loyang Premises”), while the Defendant’s business operated out of a factory in Tuas.[note: 12]

8       Sometime in early 2003, the Plaintiff purchased the IR Premises. As the IR Premises sat on land owned by JTC Corporation (“JTC”), it was subject to the prevailing terms, covenants, conditions and stipulations imposed by JTC.[note: 13]

9       By way of an agreement entered into around March 2003 (“2003 Agreement”),[note: 14] the Plaintiff sub-leased part of the IR Premises (“Carved-Out Area”) to the Defendant from 1 March 2003 to 28 February 2005.[note: 15] In line with the JTC Conditions, the Plaintiff sought and was granted approval by JTC for the said sub-lease.[note: 16] The Plaintiff also relocated its operations from the Loyang Premises to the IR Premises.

10     After the 2003 Agreement expired on 28 February 2005, the Defendant continued to occupy the Carved-Out Area and paid various sums to the Plaintiff for some, but not all, of the months it occupied the Carved-Out Area.[note: 17] However, no further written tenancy agreement was entered into between the parties.

The Settlement Deed

11     Disputes arose between Teek, George and Tony regarding the management of the Plaintiff and the Defendant, which culminated in the commencement of High Court proceedings in HC/OS 1391/2019 and HC/S 8/2020 (“High Court Proceedings”).

12     Through a Deed of Settlement dated 1 July 2020 (“Settlement Deed”), to which the Plaintiff and the Defendant were parties, the following terms (relevant to these proceedings) were agreed:

(a)     The shareholding structure of the Plaintiff and the Defendant would be reconfigured to allow a clean break between the disputing factions.[note: 18] The Plaintiff would fall under Tony’s faction and be owned by Tony, Low, Kelly and Louis, whereas the Defendant would fall under George’s faction and be owned by Teek and George.[note: 19]

(b)     The Defendant would have 8 months (“Removal Period”) to remove the property, equipment and production facilities listed at Annex K-1 to the Settlement Deed (“Annex K-1 Property”) from the IR Premises (Clause 12.1 of the Settlement Deed).[note: 20]

(c)     The Defendant would pay the Plaintiff a monthly rental of $30,000 and 50% of electricity and water charges until the Annex K-1 Property have been removed from the IR Premises, subject to a waiver of the rental for the first month (Clause 12.1 and 12.3 of the Settlement Deed).[note: 21]

(d)     There would be a full and final settlement of the disputes between the parties to the Settlement Deed (Clause 5.1 of the Settlement Deed).[note: 22]

The Defendant’s vacation of the Carved-Out Area

13     Around October 2020, the Defendant started removing the Annex K-1 Property from the Carved-Out Area.[note: 23] After the Defendant removed some of its blending and storage tanks (“Tanks”), the Plaintiff noticed that the now exposed ground was unlevelled and depressed.[note: 24] The Plaintiff therefore requested that the Defendant restore and repair the Carved-Out Area,[note: 25] but the Defendant refused and continued removing the rest of the Annex K-1 Property from the Carved-Out Area.[note: 26]

14     The Defendant vacated the Carved-Out Area in the first week of December 2020.[note: 27] However, it did not remove the concrete fencing around some of the Tanks (“Fencing”);[note: 28] and left parts of the now exposed ground in an unlevelled and depressed state (“Uneven Ground Surface”).[note: 29]

15     The Defendant also removed the following items from the Carved-Out Area, which are material to this dispute:

(a)     A steel structure (“Steel Structure”), which had large holes that three Tanks were place in.[note: 30]

(b)     Two distribution boxes (“DBs”) connected to the electrical mains which supplied electricity within the Defendant’s Carved-Out Area.[note: 31] The DBs were located at separate areas within the Defendant’s Carved-Out Area.[note: 32]

Commencement of proceedings

16     As the Defendant did not restore or repair the Carved-Out Area, the Plaintiff commenced these proceedings to seek damages for (a) the removal of the Fencing, (b) the restoration of the Uneven Ground Surface, (c) the restoration of the Steel Structure, and (d) the restoration of the two DBs.

17     The Plaintiff’s claims are premised on:[note: 33]

(a)     A breach of the Settlement Deed by virtue of the Defendant’s removal of the Steel Structure and the two DBs, which the Plaintiff alleges was not part of the Annex K-1 Property.[note: 34]

(b)     The tort of waste vis-à-vis the Defendant’s removal of the Steel Structure and the two DBs, its failure to remove the Fencing, and its failure to restore the Uneven Ground Surface.[note: 35]

(c)     A breach of a contractual obligation to reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.[note: 36]

18     The Defendant denies the Plaintiff’s claims and asserts as follows:

(a)     The Plaintiff’s claims were extinguished under the Settlement Deed.[note: 37]

(b)     It was entitled to remove the Steel Structure and the two DBs as they (i) were part of the Annex K-1 Property; (ii) belonged to the Defendant; or (iii) were treated by the parties as belonging to the Defendant.[note: 38]

(c)     It was merely an occupier (and not a tenant) of the Carved-Out Area;[note: 39] and did not have any contractual obligation to reinstate the Carved-Out Area.[note: 40]

(d)     The tort of waste does not apply because it was not a tenant.[note: 41]

Issues

19     Several issues must be addressed.

20     First, whether there was a landlord-tenant relationship between the parties prior to the Settlement Deed and whether there was an accompanying contractual obligation for the Defendant to reinstate the Carved-Out Area.

21     Second, there was a landlord-tenant relationship between the parties under the Settlement Deed and whether there was an accompanying contractual obligation for the Defendant to reinstate the Carved-Out Area.

22     Third, whether the Defendant breached the Settlement Deed by removing the Steel Structure and the two DBs.

23     Fourth, whether the Plaintiff was entitled to rely on the tort of waste despite the terms of the Settlement Deed, and if so, whether the Defendant committed the tort of waste by removing the Steel Structure and the two DBs, failing to remove the Fencing, and failing to restore the Uneven Ground Surface.

24     Fifth, the appropriate quantification of damages.

Issue 1 – Although there was a landlord-tenant relationship between the Plaintiff and the Defendant prior to the Settlement Deed, there was no obligation on the Defendant to reinstate the Carved-Out Area

The parties’ positions

25     The Plaintiff asserts that there was a landlord-tenant relationship between the parties by way of a tenancy at will;[note: 42] and that this gave rise to an obligation on the Defendant to reinstate the Carved-Out Area when it vacated the same because: (a) the terms of the 2003 Agreement were extended and continued to apply from 1 March 2005 onwards; and (b) there was an implied obligation at law to do so.[note: 43]

26     The Defendant denies that there was a landlord-tenant relationship after the 2003 Tenancy Agreement expired. It asserts that it was merely an occupier of the Carved-Out Area.[note: 44] The Defendant also asserts that it did not have any obligation to reinstate the Carved-Out Area.[note: 45]

The law

27     The right to occupy a property may come in the form of a landlord-tenant relationship or a licensor-licensee relationship.

28     Exclusive possession of the property by the occupier is an essential requirement in a landlord-tenant relationship (Goh Gin Chye and another v Peck Teck Kian Realty Pte Ltd and another 1987] SLR(R) 195 (“Goh Gin Chye”) at [14]). Exclusive possession is the right of the occupier to exclude others, including the owner, from entering the property (Tan Sook Yee’s Principles of Singapore Land Law (Tang Hang Wu and Kelvin FK Low) (LexisNexis, 4th Ed, 2019) (“Principles of Singapore Land Law”) at [19.15], citing Heslop v Burns [1974] 3 All ER 406).

29     In contrast, a licensor-licensee relationship exists where the occupier is granted the right to occupy the property without being entitled to exclusive possession.

30     That said, exclusive possession is not the sole criterion, and there may be circumstances negating an intention to create a tenancy despite the occupier having exclusive possession of the property (Goh Gin Chye at [15]). This includes situations where the parties have no intention to enter into legal relations (Booker v Palmer [1942] 2 All ER 674); a family arrangement or an act of friendship or generosity (Errington v Errington and Woods [1952] 1 KB 290 (“Errington”)); or where an employee occupies his employer’s property in order to perform his duties as an employee (Street v Mountford [1985] AC 809 at 818). In such situations, there would be a licensor-licensee relationship rather than a landlord-tenant relationship (Halsbury’s Laws of Singapore vol 14(2) (LexisNexis, 2014 Reissue, 2014) (“Halsbury’s Singapore on Land Law”) at [170.0831]).

31     It is the substance of the arrangement between the parties that is paramount, and “[p]arties cannot turn a tenancy into a licence merely by calling it one” (per Denning LJ (as he then was) in Errington at 298, cited with approval by the Court of Appeal in Goh Gin Chye at [7]). In this regard, the Court of Appeal’s finding in Goh Gin Chye at [14] are pertinent:

… Firstly, the intention of the parties is an important consideration in determining the relationship of landlord and tenant, as in all other contractual relationships, but in every case the intention “must be sought not from the mere words of the agreement but from its substance and from the conduct of the parties and the surrounding circumstances”. What the parties said or professed in the agreement alone is not enough, it does not alter what is, in effect, a tenancy into a licence, and vice versa. Secondly, the relationship of the parties is determined by law, having regard to all the relevant circumstances, and not by the label they choose to put on the agreement. The “consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence” …

There was a landlord-tenant relationship between the Plaintiff and the Defendant prior to the Settlement Deed

Exclusive possession of the Carved-Out Area by the Defendant

32     The IR Property sat on a land plot of around 6,500m2. Upon driving into the IR Property from the entrance along Kian Teck Avenue, there would be one building on the left (“Building 1”) and another smaller one on the right (“Building 2”).[note: 46]

(a)     Building 1 was occupied primarily by the Plaintiff, although a few rooms on the 1st floor were set aside and used by the Defendant as its office (“Office Unit”).[note: 47]

(b)     Building 2 was occupied solely by the Defendant.

(c)     The Defendant would also use some open-air land around Building 2 to house its Tanks (“Tank Areas”). These areas were enclosed by the Fencing.[note: 48]

33     The Carved-Out Area therefore comprised Building 2, the Tank Areas and the Office Unit.

34     I find that the Defendant had exclusive possession of the Carved-Out Area.

(a)     The Plaintiff has adduced sufficient evidence showing that the Carved-Out Area was delineated, and that it was possible for the Defendant to control the access to the same (ie. the entry and exit points).[note: 49] Building 2 had two main access points;[note: 50] the Tank Areas were demarcated by the Fencing, which limited access to it;[note: 51] and the Office Unit was locked, with access limited to persons authorised by the Defendant.[note: 52]

(b)     In contrast, there is no evidence from the Defendant to suggest that it was unable to control access to the Carved-Out Area or that the Plaintiff retained a right to control access to the Carved-Out Area (Principles of Singapore Land Law at [19.24]). In this regard, the fact that staff from the Plaintiff were able to easily walk in and out the Carved-Out Area[note: 53] did not mean that the Defendant was unable to control access, as this had to be understood in the context that the Defendant had been a wholly owned subsidiary and that the Plaintiff’s staff may have been permitted to access the Carved-Out Area.[note: 54] The Defendant’s choice to allow the Plaintiff to access the Carved-Out Area should not be confused with its ability to control access if it so wished.

35     The Defendant’s exclusive possession of the Carved-Out Area is a strong indication that a landlord-tenant relationship existed between the parties; and I turn to consider whether there were other circumstances that suggest otherwise.

George’s and Nancy’s handling of the affairs

36     George and Nancy were responsible for handling the arrangements regarding the Defendant’s occupancy of the Carved-Out Area. Tony’s involvement was limited as he accepts that these matters were left to George and Nancy to handle.[note: 55]

37     The stance taken by both George and Nancy was that following the expiry of the 2003 Agreement on 28 February 2005, the Plaintiff allowed the Defendant to occupy the Carved-Out Area, and the parties did not contemplate or discuss the existence of a landlord-tenant relationship. This is reflected in their affidavits of evidence-in-chief (“AEICs”), which explained the following in support of their view that there was merely a licensor-licensee relationship:

(a)     The landlord-tenant relationship under the 2003 Agreement and the accompanying obligation for the Defendant to pay rent to the Plaintiff were initially necessary as the Defendant was not a wholly owned subsidiary of the Plaintiff when it first started occupying the Carved-Out Area in March 2003.[note: 56]

(b)     This however changed once the Defendant become a wholly owned subsidiary of the Plaintiff around May 2004,[note: 57] and there was no longer a need for the Defendant to pay rent to the Plaintiff as it would be “akin to paying money from the left pocket to the right pocket”.[note: 58] The parties therefore did not bother or even consider signing any further tenancy agreements when the 2003 Agreement expired on 28 February 2005,[note: 59] and the Defendant occupied the Carved-Out Area for a period after 1 March 2005 without paying any fees or charges to the Plaintiff.[note: 60]

(c)     It was only years later that: (i) the Defendant started paying the Plaintiff utilities charges for electricity and water (“Utilities Charges”) amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises from January 2008 onwards;[note: 61] and (ii) the Defendant paid $30,000 towards invoices issued by the Plaintiff for monthly “warehousing storage and handling” charges (“Occupancy Charges”) from January 2017 onwards.[note: 62] These payments arose because the Defendant’s business was performing better than the Plaintiff’s, and the parties decided to do this to enhance the financial performance of the Plaintiff.[note: 63]

38     That said, George’s and Nancy’s belief that there was merely a licensor-licensee relationship is not determinative as “[i]f the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence” (Goh Gin Chye at [14]). Likewise, the fact that the Plaintiff had labelled and referred to the monthly Occupancy Charges as “warehousing storage and handling” rather than “rent” is not determinative (Chiap Seng Productions Pte Ltd v Newspaper Seng Logistics Pte Ltd [2023] 3 SLR 754 at [44]).[note: 64]

39     In any event, George conceded during cross-examination that the arrangement between the parties after 28 February 2005 was in substance a tenancy,[note: 65] which fortifies my view that a landlord-tenant relationship existed between the parties.

JTC approval

40     It is not disputed that the JTC Conditions required the Plaintiff to seek JTC’s approval for any sub-lease of the IR Premises.

41     The evidence shows that the Plaintiff had liaised with JTC on three separate occasions to seek approval of its sub-lease of the Carved-Out Area to the Defendant: (a) on 3 June 2003 for the occupancy period from 1 March 2003 to 28 February 2005; (b) on 31 December 2004 for the occupancy period from 1 March 2005 to 29 February 2008; and (c) on 10 January 2008 for the occupancy period from 1 March 2008 to 28 February 2011.[note: 66]

42     George was aware that such approval was sought from JTC, and accepted during cross-examination that there was a possibility that JTC would not have allowed the Defendant to occupy the Carved-Out Area in the absence of a landlord-tenant relationship.[note: 67] The JTC approval therefore supports my finding that a landlord-tenant relationship existed between the parties.

The terms of the tenancy prior to the Settlement Deed

The 2003 Written Tenancy Agreement is inadmissible under the Stamp Duties Act

43     Prior to the Settlement Deed, there was only one written agreement entered into between the parties vis-à-vis the Defendant’s occupancy of the Carved-Out Area.[note: 68] This pertained to the 2003 Agreement, which terms were set out in a written Tenancy Agreement dated 1 March 2023 (“2003 Written Tenancy Agreement”). The reason for splitting hairs between the use of the phrase “2003 Agreement” and “2003 Written Tenancy Agreement” will be seen in the following paragraphs.

44     A lease or an agreement for a lease is an instrument chargeable with duty under section 4(1) of the Stamp Duties Act 1929 (2021 Rev Ed) (“Stamp Duties Act”) read with Article 8 of the First Schedule thereto.

45     Under section 52(1) of the Stamp Duties Act, an instrument chargeable with duty must not be admitted in evidence unless the instrument is duly stamped. Section 52(1) states:

Subject to this section, an instrument chargeable with duty must not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, and must not be acted upon, registered or authenticated by any such person or by any public officer, unless the instrument is duly stamped.

46     In the present case, it only became apparent on the ninth and final day of trial that the 2003 Written Tenancy Agreement was not stamped.

(a)     Throughout the proceedings, the parties had taken the position that the 2003 Written Tenancy Agreement was duly stamped. The 2003 Written Tenancy Agreement was included in the Agreed Bundle of Documents for trial;[note: 69] counsel for the Defendant did not raise any objections regarding the admissibility of the 2003 Written Tenancy Agreement despite the Court having informed parties to consider the effect of section 52 of the Stamp Duties Act during the Judge Pre-Trial Conference;[note: 70] and the Defendant’s George informed the Court during cross-examination that he recalled that stamp duty was paid.[note: 71]

(b)     It was only on the final day of trial that Nancy gave evidence during cross-examination that the 2003 Written Tenancy Agreement was not stamped.[note: 72] This happened after numerous questions concerning the terms of the 2003 Written Tenancy Agreement were posed by counsel for both the Plaintiff and the Defendant over the first eight days of trial.

47     I therefore invited parties to address this issue in their Closing Submissions.

(a)     The Plaintiff argues that the 2003 Written Tenancy Agreement is admissible as: (i) George’s evidence that suggests it was stamped should be preferred over Nancy’s evidence; (ii) JTC’s approval of the Plaintiff’s sub-lease of the Carved-Out Area suggests that the 2003 Written Tenancy Agreement must have been stamped; and (iii) the Defendant did not challenge the admissibility of the 2003 Written Tenancy Agreement in its pleadings or during the trial.[note: 73]

(b)     The Defendant takes the opposite position and argues that the Court must not have any regard to the 2003 Written Tenancy Agreement which is unstamped and inadmissible since the Plaintiff has not discharged its burden (under section 105 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”)) of proving that the 2003 Written Tenancy Agreement was stamped. It argues that Nancy’s evidence should be preferred over George’s.[note: 74]

48     The crux of this issue is whether there is sufficient evidence before the Court to show that the 2003 Written Tenancy Agreement was duly stamped.

49     I find that there is insufficient evidence to conclude, on a balance of probabilities, that the 2003 Written Tenancy Agreement was stamped.

(a)     Nancy’s evidence that the 2003 Written Tenancy Agreement was not stamped is significant. She was the person in charge of both the Plaintiff’s and the Defendant’s accounts at the time and confirmed that she did not arrange for the 2003 Written Tenancy Agreement to be stamped.[note: 75] In this regard, there is no factual basis for the Plaintiff to assert that Nancy was not in charge of the Defendant’s accounts at the time,[note: 76] and her evidence during cross-examination instead shows that she was dealing with the Defendant’s accounts in 2003:[note: 77]

Q:    It wasn’t stamped?

A:    No.

Q:    Even though you were the one who was in charge of Texas and Lian Hoe Leong’s accounts?

A:    Yes.

Q:    You didn’t arrange for it to be stamped?

A:    No.

Q:    Even though there was a lawyer involved, you didn’t – the lawyer didn’t ask you to get it stamped?

A:    No.

(b)     While George took the position that stamp duty was paid for the 2003 Written Tenancy Agreement,[note: 78] his evidence must be seen from the perspective that it was his Nancy and Beth who were handling all the documentation and paperwork,[note: 79] and that Nancy’s evidence on this issue would have greater probative value.

(c)     Further, the Plaintiff’s reliance on JTC’s approval of the sub-lease is neither here nor there, as it appears from the evidence that JTC did not require a stamped tenancy agreement before granting approval. This is obvious from the fact that JTC granted approval of the sub-lease for the periods from 1 March 2005 to 29 February 2008 and from 1 March 2008 to 28 February 2011 even though there was no written tenancy agreement in existence for those periods (see [41] above).

50     Consequently, in accordance with, section 52(1) of the Stamp Duties Act, the 2003 Written Tenancy Agreement must not be admitted in evidence, and the Court is to have no regard to its contents. The fact that parties had erroneously laboured under the impression that it was stamped, or that the Defendant did not raise any prior objections to its admissibility did not affect this outcome. To this end, the findings in the High Court decision of Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd [2014] 2 SLR 1342 at [51] are instructive:

A judge has a duty not to admit in evidence any document which is on its face chargeable and unstamped. That is so whether or not an objection is taken, whether or not the unstamped document is tendered by the person liable to pay the duty and whether or not the document has through oversight been admitted and treated as evidence in interlocutory proceedings or in a lower court.

51     The primary impact of this finding is that the Plaintiff is not able to rely on a particular clause in the 2003 Written Tenancy Agreement that according to the pleadings required the Defendant to yield up the Carved-Out Area in good and tenantable repair and condition at the expiry of the term of the lease (“Tenantable Repair Clause”).[note: 80]

52     In coming to this decision, I am mindful that it was possible for the Plaintiff to rely on section 52(2) of the Stamp Duties Act to have the 2003 Written Tenancy Agreement admitted in evidence by making payment of the relevant stamp duty and penalty chargeable. This could have been done after the issue surfaced on the final day of trial. However, the Plaintiff has not done so, and merely states in its Closing Submissions that it “attempted to obtain records from [the Inland Revenue Authority of Singapore] to ascertain whether stamp duty was paid … but was informed that [the Inland Revenue Authority of Singapore] does not keep any such records dating back to 2003”.[note: 81] This was therefore not a situation where the Plaintiff’s case would be irreparably harmed due to the delayed emergence of the issue; and the Plaintiff must accept the consequences under section 52(1) of the Stamp Duties Act if it refuses to take the necessary steps under section 52(2).

53     Further, the case of Asirham Investment Pte Ltd v JSI Shipping (S) Pte Ltd [2008] 1 SLR(R) 117 (“Asirham”), which the Plaintiff relies on, can be distinguished.

(a)     In Asirham, a tenancy agreement was admitted into evidence after the plaintiff tendered a certificate of stamp duty, which showed that the plaintiff had paid stamp duty and a penalty under the Stamp Duties Act. After the trial came to a close, the defendant sought to rely on fresh documentary evidence to argue that the penalty was not fully paid by the plaintiff and that the tenancy agreement was hence inadmissible. The High Court rejected the defendant’s attempt to introduce the fresh evidence and found that there was no evidential basis to conclude that the penalty paid was deficient. The High Court also expressed the view that it was inequitable for the defendant, who had the obligation under the tenancy agreement to pay the stamp duty, to rely on its own omission to pay the stamp duty to avoid liability.

(b)     The facts in the present case are different from Asirham in a couple of material aspects:

(i)       First, the High Court had credible evidence (in the form of a certificate of stamp duty) that permitted it to admit the tenancy agreement into evidence under section 52 of the Stamp Duties Act, and thereafter have regard to the contents therein (such as the clause specifying that it was the defendant who had the obligation under the tenancy agreement to pay the stamp duty).[note: 82] In contrast, there is no documentary or uncontradicted evidence that stamp duty was paid on the 2003 Written Tenancy Agreement, and I am not entitled to peer into the terms of the inadmissible 2003 Written Tenancy Agreement to ascertain whether it was the Plaintiff or the Defendant who bore the obligation to pay the stamp duty.

(ii)       Second, the defendant’s objections in Asirham arose after the close of trial and were premised on fresh evidence that the High Court chose to disregard in the absence of a formal application to introduce the said evidence post-trial.[note: 83] In contrast, the evidence forming the basis of the Defendant’s objections to the admissibility of the 2003 Written Tenancy Agreement arose before the close of trial, and can be considered and taken into account.

(c)     Consequently, I am not persuaded by the Plaintiff’s argument that it would, like the case of Asirham, be inequitable for the Defendant to rely on its omission to pay stamp duty to prevent the Plaintiff from relying on the terms of the 2003 Written Tenancy Agreement;[note: 84] nor am I persuaded by the Plaintiff’s argument that the Defendant has failed to discharge its burden (under section 108 of the Evidence Act) of proving that the stamp duty was not paid because it was the Defendant who was required to pay the stamp duty and would be the sole party with knowledge of whether it was paid.[note: 85] Making such a finding would require me to put the cart before the horse by delving into the terms of the inadmissible 2003 Written Tenancy Agreement to determine whether the Defendant was required to pay the stamp duty. In this regard, I must reiterate that this was not a situation where the Plaintiff had absolutely no way to salvage the situation, as it could have relied on section 52(2) of the Stamp Duties Act to pay the relevant stamp duty and penalty chargeable and have the 2003 Written Tenancy Agreement admitted in evidence.

54     For completeness, the provisions of the Stamp Duties Act do not prevent the Court from making findings vis-à-vis the existence of the 2003 Agreement and the associated landlord-tenant relationship thereunder, which is in any event not in dispute.[note: 86] Aside from written agreements (which have to be stamped), landlord-tenant relationships can be created orally or by conduct (Halsbury’s Singapore on Land Law at [170.0825]), in which case there would be no instrument to be stamped. Consequently, section 52(1) of the Stamp Duties Act does not, in my view, preclude the Court from relying on other evidence (aside from the 2003 Written Tenancy Agreement) to determine the existence of and the accompanying terms of a landlord-tenant relationship; and the mere fact that no stamp duty was paid is not determinative of whether there was a landlord-tenant relationship.[note: 87]

The terms of the 2003 Agreement were not extended beyond 28 February 2005

55     When the 2003 Agreement expired on 28 February 2005, the Defendant did not yield up the Carved-Out Area and continued to occupy the same.[note: 88]

56     As far as George (and by extension the Plaintiff and the Defendant) was concerned, any obligations under the 2003 Agreement could be disregarded since the Defendant was a wholly owned subsidiary of the Plaintiff and he was managing both companies in tandem.[note: 89] In other words, the Plaintiff was simply unconcerned about the nature of the Defendant’s occupancy of the Carved-Out Area and there was no need to consider or discuss the terms of the stay.

57     This must mean that the terms of the 2003 Agreement could not have been extended, and instead expired and no longer applied to the Defendant’s occupancy of the Carved-Out Area. This finding is consistent with the fact that there is no evidence whatsoever showing that the parties referred to the terms of the 2003 Agreement after it expired on 28 February 2005.

58     Instead, a fresh arrangement in the form of a tenancy at will arose, which replaced the fixed term lease under the 2003 Agreement. The nature of a tenancy at will is described in Principles of Singapore Land Law at [17.15]:

A tenancy at will is create when a tenant, with the consent of the owner, occupies land as a tenant on terms that either party may determine the tenancy at any time. Such a lease may be created where the landlord acknowledges the occupier as a tenant but has not set out the terms of the tenancy; the tenant is a tenant at will. Such a tenant may be asked to leave at any time and such a tenancy does not form part of the estate of the tenant. A common example of such a lease is when a tenant of a fixed term lease holds over after the lease has expired, with the consent of the landlord and without paying any rent …

59     For completeness, I disagree with the Defendant’s argument that the 2003 Agreement was terminated by the parties when the Defendant became a wholly owned subsidiary of the Plaintiff around May 2004.[note: 90] While the parties may have decided that it was no longer necessary for the Defendant to pay rent (see [37(b)] above), this is not tantamount to a termination of the 2003 Agreement.

The discernible terms of the tenancy after 28 February 2005

60     When the tenancy at will first arose, it simply meant that the Defendant could occupy the Carved-Out Area. There was no contemplation or discussion of any other terms.

61     Subsequently, the parties agreed that the Defendant would have to make some payments to the Plaintiff:

(a)     There was an agreement for the Defendant to pay the Utilities Charges, which was in place from 2008 onwards.[note: 91]

(b)     There was an agreement for the Defendant to pay the Occupancy Charges, which was in place from 2017 onwards.[note: 92]

62     There was however no agreement between the parties regarding the Defendant’s obligations when it finally vacated the Carved-Out Area. There is simply no evidence showing that anyone considered whether the Defendant would be required to reinstate the Carved-Out Area or yield it up in good and tenantable repair and condition if it vacated the Carved-Out Area. This is understandable since George was managing both companies in tandem and would not have contemplated the need for the Defendant to vacate the Carved-Out Area as long as the Plaintiff remained the owner of the IR Premises.

63     Consequently, at the time before the Settlement Deed was entered into, the only discernible terms of the tenancy at will were:

(a)     The Defendant would pay the Plaintiff Utilities Charges amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises.[note: 93]

(b)     The Defendant would pay the Plaintiff Occupancy Charges of $30,000 per month.[note: 94]

64     The Plaintiff has in its Closing Submissions also argued that there is an implied obligation on the Defendant to keep the Carved-Out Area in a tenant-like manner and to yield it up in the condition it was in when the Defendant started occupying it.[note: 95]

(a)     Based on the Plaintiff’s arguments, an implied obligation at law would at best extend to keeping the Carved-Out in a tenant-like manner, which Lord Denning LJ (as he then was) has described in Warren v Keen [1954] 1 QB 15 at 20 as follows:

The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must of course, not damage the house, wilfully or negligent; and he must see that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.

(b)     However, there is no basis for the Plaintiff’s suggestion that there is an implied obligation at law to yield up the Carved-Out Area in the condition it was in when the Defendant started occupying it.[note: 96] The Plaintiff has not cited any authorities supporting this proposition and it did not elaborate on this argument in its Closing Submissions.

Even if the 2003 Written Tenancy Agreement is admissible and its terms were extended, there was no obligation to reinstate the Carved-Out Area

65     Assuming that I am incorrect in my findings, and that instead (a) the 2003 Written Tenancy Agreement is admissible, and (b) its terms (particularly the Tenantable Repair Clause) were extended beyond 28 February 2005, I would still have found that the Defendant did not have an obligation to reinstate the Carved-Out Area when it vacated the same.

66     The Plaintiff argues that the phrase “good and tenantable repair” under the Tenantable Repair Clause placed an obligation on the Defendant to restore or reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.[note: 97]

67     I disagree. I do not see how such an interpretation can arise when the Tenantable Repair Clause does not refer to the condition of the Carved-Out Area when the Defendant started occupying it in 2003 or use the words “restore” or “reinstate”.[note: 98]

68     In this regard, contrary to the Plaintiff’s suggestion, the English Court of Appeal decision of Proudfoot v Hare [1890] 25 QBD 42 does not equate the term “good and tenantable repair” with an obligation of reinstatement, and instead shows that there is a clear distinction between the two.[note: 99] The English Court of Appeal defined “good and tenantable repair” as “such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it” (at 52 and 55) and made it clear that the “house need not be put into the same condition as when the tenant took it” (at 52).

69     Likewise, the Plaintiff’s reliance on the Singapore High Court decision of Lee Tat Realty Pte Ltd v Limco Products Manufacture Pte Ltd and others and another suit [1998] 2 SLR(R) 258 does not support its argument, as the obligation to maintain a building in the state it was received and to restore it to its original state arose in that case because of contractual obligations to not only “maintain the demised premises in good order and condition”, “keep the demised premises … in good and tenantable repair and condition”, but also to “reinstate the demised premises to their original condition”.

Issue 2 – While there was a landlord-tenant relationship between the Plaintiff and the Defendant under the Settlement Deed, there was no obligation on the Defendant to reinstate the Carved-Out Area

The parties’ positions

70     The Plaintiff takes the position that the landlord-tenant relationship and the prevailing terms existing prior to the Settlement Deed (including an obligation to reinstate the Carved-Out Area) continued to apply to the landlord-tenant relationship under the Settlement Deed.[note: 100]

71     The Defendant argues that it remained an occupier of the Carved-Out Area under the Settlement Deed and that it did not have an obligation to reinstate the Carved-Out Area under the Settlement Deed.[note: 101]

The Settlement Deed reflected a landlord-tenant relationship between the Plaintiff and the Defendant

72     The terms of the Settlement Deed point to the existence of a landlord-tenant relationship between the Plaintiff and the Defendant.

73     Clause 12 of the Settlement Deed referred to the payment of monthly rent of $30,000 from the Defendant to the Plaintiff for the Removal Period.[note: 102] While the description in the corresponding invoices issued by the Plaintiff for the said sum of $30,000 reflected “warehousing storage and handling” charges,[note: 103] this did not change the fact that the parties treated the sum as being rent under the Settlement Deed. This is evident from the letter from the Defendant’s solicitors to the Plaintiff’s solicitors on 23 October 2020 that referred to the payment of “rent” rather than “warehousing storage and handling” charges.[note: 104]

74     Further, the Settlement Deed did not change the fact that the Defendant continued to have exclusive possession of the Carved-Out Area until it vacated the same. As explained at [32] to [35] above, the Defendant’s exclusive possession of the Carved-Out Area is a strong indication that a landlord-tenant relationship existed between the parties.

75     The Plaintiff’s failure to obtain approval from JTC was inconsequential to this finding.

(a)     Based on the letters from JTC, JTC approved the sub-letting of the IR Premises to the Defendant on the basis that the Plaintiff had to own at least 51% of the shareholding of the Defendant.[note: 105] In this regard, Tony accepted during cross-examination that JTC would not have approved the sub-letting of the IR Premises to the Defendant after the parties entered into the Settlement Deed, as the Plaintiff was no longer a shareholder of the Defendant.[note: 106]

(b)     Nevertheless, any breach of the JTC Conditions by the Plaintiff is a separate issue for JTC to address and does not affect the Plaintiff’s arrangement with the Defendant. The relationship between JTC and the Plaintiff and the accompanying obligations by the Plaintiff to seek JTC’s approval of any sub-leases is a matter between JTC and the Plaintiff. If the Plaintiff fails to comply with the JTC Conditions, it is for JTC to take the necessary steps against the Plaintiff relating to the same. This was not a situation where the arrangement between the Plaintiff and the Defendant was subject to the relevant approvals from JTC.

The terms of the tenancy are set out within the Settlement Deed, which does not place an obligation on the Defendant to reinstate the Carved-Out Area

76     The Plaintiff accepts that the terms of the tenancy between the parties are wholly set out in the Settlement Deed. This is apparent from the evidence from the Plaintiff’s current managing director Tony,[note: 107] and the Plaintiff’s pleaded position that the terms of Clause 12 of the Settlement Deed created or formalised the tenancy at will between the parties.[note: 108]

77     The terms of the tenancy under the Settlement Deed are:

(a)     The Defendant would have to remove the Annex K-1 Property from the IR Premises within the Removal Period.

(b)     The duration of the lease was until the earlier of:

(i)       the expiry of the Removal Period; or

(ii)       the vacation of the IR Premises by the Defendant.

(c)     The Defendant would pay the Plaintiff the Occupancy Charges of $30,000 per month plus Utilities Charges amounting to 50% of the total monthly cost of utilities incurred by the Plaintiff for the IR Premises.

(d)     The Plaintiff would waive the Occupancy Charges of $30,000 for the first month of the Removal Period.

78     The Settlement Deed does not refer to an obligation for the Defendant to reinstate the Carved-Out Area when it vacated the same. It also does not refer to or incorporate any of the terms under the 2003 Agreement (such as the Tenantable Repair Clause).

79     Consequently, there is no basis for the Plaintiff’s argument that the Settlement Deed placed an obligation on the Defendant to reinstate the Carved-Out Area to the condition it was in when the Defendant started occupying it in 2003.

Issue 3 – The Defendant breached the Settlement Deed by removing the two DBs

The parties’ positions

80     The Plaintiff’s position is that:

(a)     The Defendant breached Clause 12 of the Settlement Deed because it removed the Steel Structure and the two DBs, which were not part of the Annex K-1 Property.[note: 109]

(b)     It did not have any knowledge of the Defendant’s removal of the Steel Structure and the two DBs until after the removal was completed;[note: 110] and hence could not have objected to or prevented the Defendant’s removal of the same.[note: 111]

81     The Defendant’s contends as follows:[note: 112]

(a)     It was entitled under Clause 12 of the Settlement Deed to remove the Steel Structure because it was referred to at S/N 10 of the Annex K-1 Property, which states “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank. Mixer propeller MT07/08, Mixer System MT-09”;[note: 113] and to remove the two DBs because they were referred to at S/N 58 of the Annex K-1 Property which states “1 lot Fabricate steel base with Electrical Panel with motor starter”.[note: 114] The Defendant also argues that it was entitled to remove the Steel Structure and the two DBs as they belonged to it or were treated by the parties as belonging to it.[note: 115]

(b)     The Plaintiff is estopped from raising this claim, as it did not object to the Defendant’s removal of the Steel Structure and the two DBs even though the removal was witnessed by the Plaintiff’s representatives (including Tony and Darren).[note: 116]

The Settlement Deed

82     The Settlement Deed was intended to allow a clean break (ie. complete separation) between the disputing factions of the family.[note: 117]

(a)     The preamble of the Settlement Deed refers to the desire for parties to “completely part ways”.[note: 118]

(b)     Clause 5 of the Settlement Deed is labelled “Full and Final Settlement of the Disputes” and provided a holistic settlement of all claims relating to the management and affairs of the Plaintiff and the Defendant.[note: 119] Clause 5.1 of the Settlement Deed states:

5.1.1  the Parties shall unconditionally and irrevocably waive, forgo, abandon, release and forever discharge each other, from any and all liabilities, obligations, claims and demands, suits, causes of action, costs, charges, debts, dues, sums of money (whether principal, interest or any applicable penalties), damages, judgments and execution of whatsoever nature and howsoever arising, in law or in equity, of every kind and description (including limitation, for fraud) which the Parties had, or hereafter, can, shall or may have against each other in respect of, arising from or in connection with the Disputes (including the subject matter of the Legal Proceedings) and management and affairs of [the Plaintiff] and [the Defendant];

5.1.2  the Parties shall have no further claims or counterclaims against each other in respect of, arising from or in connection with the Disputes and management and affairs of [the Plaintiff] and [the Defendant].

[Emphasis added.]

(c)     Clause 13 of the Settlement Deed is labelled “Clean Break and Non-disparagement”.[note: 120]

83     The Settlement Deed was negotiated over several months and comprehensively outlined the steps to achieve a clean break in several areas concerning the management and affairs of the companies.[note: 121] The Plaintiff (through its current managing director Tony and director Darren) accepts that the removal of the Annex K-1 Property under Clause 12 was a crucial element in facilitating the clean break.[note: 122] Aside from Clause 12, Clause 8 addressed the discharge of corporate and personal guarantees; Clause 9 dealt with the allocation of and corresponding transfer of employees between the companies; and Clause 10 covered the segregation, transfer and deletion of documents, data and information belonging to the companies.

84     Further, Clause 17 of the Settlement Deed was labelled “Entire Agreement” and states:

This Deed embodies all the terms and conditions agreed upon between the Parties as to the subject matter herein and shall supersede and cancel all prior agreements and/or arrangements with respect to the subject matter herein whether such be written or oral. This Deed shall not be varied, altered, changed, supplemented, or amended except by written instruments signed by the Parties.

85     I therefore find that the full extent of the Defendant’s obligations regarding the removal of property from the Carved-Out Area was exhaustively set out in Clause 12 of the Settlement Deed. In particular, the Annex K-1 Property is an exhaustive list of items that the Defendant was required to remove from the Carved-Out Area.[note: 123] This finding is consistent with my earlier finding that the terms of the landlord-tenant relationship between the parties are wholly set out in the Settlement Deed (see Issue 2 above).

The Steel Structure

The parties’ positions

86     The Plaintiff asserts that the Defendant was not entitled to remove the Steel Structure because the Steel Structure belonged to the Plaintiff; and it was not part of the Annex K-1 Property.[note: 124]

87     The Defendant takes a diametrically opposed position. It contends that it was permitted to remove the Steel Structure, which belonged to the Defendant, was treated by the parties as belonging to the Defendant and was reflected at S/N 10 of the Annex K-1 Property.[note: 125]

The history of the Steel Structure

88     The Steel Structure stood on the IR Premises (in the Carved-Out Area) when it was originally purchased by the Plaintiff in early 2003.[note: 126]

89     In late 2003, the Plaintiff permitted the Defendant to modify the Steel Structure to install some Tanks and relinquished ownership of the Steel Structure to the Defendant. This is evident from the following:

(a)     There is an invoice from DIL Technology to the Defendant showing that modification works to the Steel Structure were performed sometime around November 2003 (“DIL Invoice”).[note: 127] The works specified relate to the installation of Tanks in the Steel Structure, which shows that the Plaintiff permitted the Defendant to modify the Steel Structure. For clarity, the mere fact that it was the Defendant who incurred the costs of modification does not mean that the Defendant became the owner of the Steel Structure (Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2013] 4 SLR 409 at [156]).[note: 128]

(b)     After the Tanks were installed, George (who was the managing director of both the Plaintiff and the Defendant at the time) treated the Steel Structure and Tanks as one collective asset that was owned by and belonged to the Defendant; and made a business decision on behalf of both the Plaintiff and the Defendant to allow the ownership of the Steel Structure to vest in the Defendant.[note: 129] There is no evidence from the Plaintiff’s current management (ie. Tony or Darren) to disprove the existence of this transfer of ownership of the Steel Structure to the Defendant. In this regard, I note that Tony’s sole reason for believing that the Steel Structure belonged to the Plaintiff is based on it having been part of the IR Premises when it was first purchased,[note: 130] and there is no evidence showing that he was involved in the specific arrangements, circumstances and details surrounding the modifications to the Steel Structure or the change in ownership of the Steel Structure;[note: 131] and that Darren was not involved in the Plaintiff’s business until 2007, which was well after the event.[note: 132] To this end, the fact that the Defendant did not pay the Plaintiff for the Steel Structure is inconsequential,[note: 133] as the evidence shows that the Plaintiff allowed the ownership of the Steel Structure to vest in the Defendant without the payment of any fees.[note: 134]

(c)     The Defendant’s ownership of the Steel Structure is also reflected in contemporaneous documents:

(i)       The Defendant’s Fixed Asset Register refers to “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank, Mixer propeller MT07/08, Mixer System MT-09”, which coincides with the language adopted in the DIL Invoice vis-à-vis the modifications performed to the Steel Structure around November 2003,[note: 135] and the exact wording of S/N 10 of the Annex K-1 Property.

(ii)       The Defendant’s Financial Statements for the year ending 31 December 2003 shows an increase in asset value for “Machinery and equipment”, which George has explained reflects the value of the collective asset comprising the Steel Structure and Tanks.[note: 136] In this regard, I am mindful that Tony had (as director of the Defendant at the time) signed off to acknowledge that the figures in the Financial Statement were a “true and fair view of the state of the affairs of the company as at December 31, 2003”.[note: 137]

(d)     Further, Nancy (who was the finance manager of both the Plaintiff and the Defendant at the time)[note: 138] has given evidence that the Steel Structure was treated as the Defendant’s asset.[note: 139] As she was the one handling the accounts for both companies, her knowledge and position is testament to how both the Plaintiff and the Defendant accepted that the Steel Structure was owned by the Defendant from November 2003 onwards.

90     In any event, the ownership of the Steel Structure prior to the Settlement Deed being entered has limited impact, as the relevant question in this case relates to whether the Steel Structure was part of the Annex K-1 Property. If it was, the Defendant would be permitted to remove it even if it was owned by the Plaintiff prior to the Settlement Deed.

The removal of the Steel Structure in November 2020

91     I find that the Steel Structure is referred to under S/N 10 of the Annex K-1 Property and that the Defendant was entitled to remove it.

92     S/N 10 of the Annex K-1 Property states “1 lot New Open Top Mixing Tank – with heater & controller to existing s.s. tank. Mixer propeller MT07/08, Mixer System MT-09”,[note: 140] with the abbreviation “s.s.” being a reference to the Steel Structure.

93     The evidence shows that the Plaintiff is aware that the Steel Structure is referred to in S/N 10 of the Annex K-1 Property, as Darren indicated during cross-examination that “my understanding on item 10 is just that it’s open – open mix – open top mixing tank with heater and controller, the lot – on lot attached to the steel structure”.[note: 141] Darren’s concession has some implications:

(a)     It contradicts and disposes of the Plaintiff’s argument that S/N 10 of the Annex K-1 Property only covered the heating tank and not the Steel Structure.[note: 142] In this regard, it is pertinent that the Plaintiff’s current managing director Tony has deferred to Darren’s understanding of S/N 10 of the Annex K-1 Property since Darren was the one in charge of it.[note: 143]

(b)     It raises concerns and doubts over the credibility of Darren’s evidence on this issue of whether the Defendant was permitted to remove the Steel Structure from the Carved-Out Area, as he had prior to the said concession taken a drastically different position by insisting that “Annex K-1 just show the heating tank, so the guy bring me to the heating tank and pointed me, this is the heating tank, so I took the photo of it”.[note: 144]

94     My finding that the Defendant was permitted to remove the Steel Structure under S/N 10 of the Annex K-1 Property is fortified by the following evidence.

95     First, the Plaintiff accepts that it was the Defendant who prepared the description for S/N 10 of the Annex K-1 Property and that the Defendant would be in a better position to know what the description meant.[note: 145] Suffice to say that the Defendant considers the Steel Structure to be part of S/N 10 of the Annex K-1 Property.

96     Second, George (and by extension the Plaintiff and the Defendant) treated the Steel Structure and Tanks as one collective asset belonging to the Defendant (see [89(b)] above). Indeed, Darren accepts that he (and hence the Plaintiff) was aware that the Defendant had been operating the “whole thing as an integrated unit”.[note: 146]

97     Third, the evidence shows that part of the Steel Structure had to be cut for the Tanks (that the Plaintiff accepts belonged to the Defendant) to be removed. This was not a situation where the Tanks could have been removed without any form of tampering with the Steel Structure. This lends credence to the Defendant’s position that the Steel Structure and Tanks are one collective asset.

98     The Defendant relied on the evidence from Mr Zheng Zubin (“Zheng”) of Tong Sun Pte Ltd (“Tong Sun”), who was the contractor engaged by the Defendant to remove the Steel Structure from the Carved-Out Area, and is also the contractor subsequently engaged by the Plaintiff to construct a new steel structure after the Defendant vacated the Carved-Out Area.[note: 147] According to Zheng, part of the Steel Structure had to be cut for the Tanks to be removed.[note: 148] This view was reached after Zheng had performed an onsite assessment of the situation and the prevailing circumstances in the Carved-Out Area,[note: 149] and formed the conclusion that the Tanks could not have been hoisted out without cutting the Steel Structure due to limitations arising from the ceiling height.[note: 150] His evidence comes from the perspective of someone with firsthand knowledge and understanding of the onsite conditions. I therefore found Zheng’s views, which were objective and coherent, to have significant evidential value.

99     In contrast, the evidence relied on by the Plaintiff to show that the Steel Structure did not have to be cut to remove the Tanks was tenuous and unhelpful.

(a)     The Plaintiff relied on evidence from Darren and Mr Soh Eng Chee (“Soh”) of ELS Construction Pte Ltd (“ELS”), who assisted the Plaintiff in performing other construction works after the Defendant vacated the Carved-Out Area.

(b)     Darren’s perspective is that the Tanks could have been removed without cutting the Steel Structure.[note: 151] Darren formed this view after observing Tong Sun lift new tanks into the new steel structure it constructed for the Plaintiff after the Defendant vacated the Carved-Out Area; and by extrapolating the construction process in reverse order.[note: 152] However, Darren’s extrapolation is unhelpful because Tong Sun’s Zheng has confirmed that the Steel Structure had to be cut in order to remove the Tanks.

(c)     Soh’s perspective is that the Tanks could have been hoisted out from the top of the Steel Structure.[note: 153] I did not find Soh’s evidence to be helpful as:

(i)       There is no evidence showing that he performed an onsite inspection and assessment of the situation around the time that the Tanks and Steel Structure were removed in November 2020. This stands in stark contrast to what Tong Sun had done before Zheng was able to reach his view.

(ii)       There is a mathematical conundrum surrounding Soh’s perspective. The area’s maximum ceiling height was about 7.5-8m;[note: 154] the Steel Structure was around 3.2m high;[note: 155] there were two 3.8m tall Tanks that had to be removed from the Steel Structure;[note: 156] and Mr Soh’s evidence is that a crane would require a minimum of 0.8-1m between the ceiling and the top of the Tank being hoisted.[note: 157] Consequently, the vertical extension required to remove the 3.8m Tank would be between 7.8m (ie. 3.2m + 3.8m + 0.8m) and 8m (ie. 3.2m + 3.8m + 1m). If the ceiling height was 7.5m, both the 7.8m and 8m vertical extensions would exceed it, rendering hoisting impossible. If the ceiling height was 8m, the 7.8m vertical extension would fit, while the 8m vertical extension would leave no margin for error. Given the permutations and Mr Soh’s lack of an onsite inspection, I am unable to accept his evidence on this point.

100    Consequently, I prefer Zheng’s evidence over Darren’s and Soh’s, and accept that part of the Steel Structure had to be cut for the Tanks to be removed. In this regard, I note that the Plaintiff has in its Closing Submissions conceded that the Steel Structure would at the very least have to be cut in the front to create a gap so that the Tanks could be removed[note: 158] – this was a significant departure from its earlier position that the Steel Structure did not have to be cut at all, which is evident from Darren’s evidence (see [99(b)] above).

101    Fourth, the Plaintiff’s conduct after it was aware that the Steel Structure was cut by the Defendant shows that it originally accepted that the Steel Structure was meant to be removed as part of the Annex K-1 Property.

(a)     The evidence shows that the Plaintiff did not stop the Defendant from cutting the Steel Structure to remove the Tanks even though it was aware of the same.

(b)     On 19 November 2020, the Plaintiff visited the Carved-Out Area together with its solicitors to inspect the area. The Plaintiff accepts that by this time, it was aware that the Defendant had already begun cutting the Steel Structure by removing some railings and parts of the upper platform.[note: 159] However, rather than notifying the Defendant to stop tampering with the Steel Structure, the Plaintiff took no action.[note: 160] This was despite Tony’s evidence that the Plaintiff would have promptly intervened to prevent the Defendant from removing any items that it was not permitted to remove under the Settlement Deed.[note: 161]

(c)     Subsequently, the Plaintiff continued to remain silent and did not ask the Defendant to stop tampering with the Steel Structure even though: (i) it was aware that the Defendant was cutting it to remove the Tanks;[note: 162] and (ii) Leroy sent an email at 5.37pm on 19 November 2020 to inform the Plaintiff that the Defendant would be removing the said Tanks from the Carved-Out Area between 21 and 22 November 2020.[note: 163]

(d)     It was only on 25 November 2020 that the Plaintiff’s solicitors wrote to the Defendant’s solicitors to raise issues regarding the removal of the Steel Structure.[note: 164] This was after the Steel Structure and the Tanks were already removed and is a departure from the Plaintiff’s earlier conduct that suggests that the Steel Structure was meant to be removed as part of the Annex K-1 Property.

(e)     In this regard, I find Darren’s explanation as to why he did not directly confront the Defendant on 19 November 2020 to stop them from tampering with the Steel Structure to be unbelievable. According to Darren, he did not confront the Defendant because the relationship between the parties was “tense at that point of time” and he wanted the Plaintiff’s solicitors to inform the Defendant of its objections to the removal of the Steel Structure.[note: 165] However, this explanation contradicts the fact that on 20 November 2020, the Plaintiff saw the Defendant removing some blue racks from the Carved-Out Area that were not part of the Annex K-1 Property, and immediately confronted the Defendant to stop them from removing the racks (instead of waiting for its solicitors to communicate with the Defendant).[note: 166] To this end, it is of particular note that Darren personally communicated with Leroy over telephone calls or WhatsApp messages on this issue surrounding the blue racks,[note: 167] and it is clear that the communication channels between Darren and Leroy were open.

(f)     Further, I do not accept the Plaintiff’s argument that it did not have to confront the Defendant on 19 November 2020 to stop them from tampering with the Steel Structure because it believed that the Steel Structure was being cut to create a gap to allow the Tanks to be removed laterally (rather than being fully hoisted).[note: 168] This argument is unsupported by any evidence from the Plaintiff and appears to be an afterthought. It is also at odds with Darren’s explanation that he did not confront the Defendant because the relationship between the parties was “tense at that point of time”,[note: 169] and contradicts Darren’s evidence that the Steel Structure did not have to be cut for the Tanks to be removed (see [99(b)] above).

102    In coming to this decision, I did not place any significance on the Defendant’s argument surrounding the Plaintiff’s failure to raise the claim for the Steel Structure in the original Statement of Claim filed on 5 February 2021.[note: 170] The fact remains that the Plaintiff had raised this issue from as early as 25 November 2020 when its solicitors wrote to the Defendant’s solicitors,[note: 171] and that the Court had granted the Plaintiff leave to amend its pleadings to include the claim.

103    In view of the above, the Defendant was entitled to remove the Steel Structure, which was part of the Annex K-1 Property. It is therefore not necessary for me to deal with the Defendant’s alternative argument that the Plaintiff was estopped from raising the said claim.[note: 172]

The two DBs

104    The Defendant was not entitled to remove the two DBs, which were not part of the Annex K-1 Property.[note: 173]

105    I am unable to accept the Defendant’s assertion that the two DBs are referred to at S/N 58 of the Annex K-1 Property, which states “1 lot Fabricate steel base with Electrical Panel with motor starter”.[note: 174]

106    First, the two DBs were located at separate areas within Building 2,[note: 175] and there is no evidence from the Defendant to show that they were both located on “1 lot Fabricate steel base”.

107    Second, the term “electrical panel” is singular and does not seem to correspond with the two DBs.

108    In this regard, it did not matter whether the Defendant was the one who installed the two DBs since the full extent of the Defendant’s obligations in relation to the removal of property from the Carved-Out Area was exhaustively set out in Clause 12 of the Settlement Deed (see [85] above).

109    Further, the Defendant’s argument that the Plaintiff was estopped from bringing this claim is untenable.[note: 176] There is simply no evidence of any representation being made by the Plaintiff or reliance on such representation by the Defendant.[note: 177] I do not see how the Plaintiff’s failure to object to the Defendant’s removal of the two DBs can amount to a representation when there is no evidence that any of the Plaintiff’s representatives ever saw the two DBs being removed.

Conclusion on Issue 3

110    The Defendant was permitted under the Settlement Deed to remove the Steel Structure from the Carved-Out Area.

111    However, the Defendant’s removal of the two DBs from the Carved-Out Area was in breach of the Settlement Deed.

112    For completeness, there was no allegation of a breach of the Settlement Deed arising from the Defendant’s failure to remove the Fencing or to restore the Uneven Ground Surface. This was rightfully so, as the Settlement Deed did not require these acts to be performed, and the Plaintiff instead relies on the tort of waste as the basis of its claim against the Defendant for these items.

Issue 4 – The Defendant is liable for the tort of waste with regards to the removal of the two DBs

The parties’ positions

113    The Plaintiff contends that the Defendant has committed the tort of waste by removing the Steel Structure and the two DBs, failing to remove the Fencing, and failing to restore the Uneven Ground Surface.[note: 178]

114    The Defendant argues that:

(a)     The Plaintiff’s claim is precluded under the Clause 5.1 of the Settlement Deed which provided for a full and final settlement of the disputes between the parties.[note: 179]

(b)     The tort of waste does not apply in this case because there was no landlord-tenant relationship between the parties.[note: 180]

Law on the tort of waste

115    This appears to be the first reported case in Singapore that deals with the tort of waste.

116    The tort of waste refers to an act or omission that alters the nature of a property to the prejudice of the person who has the remainder or reversion of the property (ie. the owner).

(a)      Principles of Singapore Land Law states at [3.17]: “By definition, waste is any alternation to the nature of the land, whether the land is improved or otherwise.”

(b)      Clerk & Lindsell on Torts (Michael Jones gen ed) (Sweet & Maxwell, 23rd Ed, 2020) (“Clerk & Lindsell”) states at [18-97]: “The action for waste is an action in tort. Waste has been defined to be “the committing of any spoil or destruction in houses, land etc by tenants, to the damage of the heir, or of him in reversion or remainder”.”

(c)      Hill & Redman’s Law of Landlord and Tenant, Issue 142 October 2023 states at A[3328]: “”Waste’ is an act which alters the nature of the land. It has been defined as a spoil or destruction to houses, gardens, trees, or other corporeal hereditaments, to the injury of the reversion.”

(d)      Halsbury’s Singapore on Land Law states at [170.0948]: “Waste consists of any act or omission which causes a lasting alteration to the nature of the land in question to the prejudice of the person who has the remainder or reversion of the land. The obligation not to commit waste is an obligation in tort, and is independent of contract or implied covenant.”

(e)      Halsbury’s Laws of England vol 62 (LexisNexis, 5th Ed, 2016) (“Halsbury’s England on Land Law”) states at [324]: “Waste consists of any act or omission on the part of the tenant which causes a lasting alteration to the nature of the land in question to the prejudice of the person who has the remainder or reversion of the land. The obligation not to commit waste is an obligation in tort, and is independent of contract or implied covenant.”

117    Waste is either voluntary or permissive.

Voluntary waste

118    Voluntary waste refers to an act that results in the destruction of the property, such as pulling down houses, altering their structure, breaking down walls, removing the landlord’s fixtures or removing the tenant’s fixtures without making good the damage (Mancetter Developments Ltd v Garmanson Ltd [1986] 1 All ER 449 (“Mancetter”) at 452e, 453a and 457a; Principles of Singapore Land Law at [3.19]; Clerk & Lindsell at [18-97]; Halsbury’s Singapore on Land Law at [170.0948]; Halsbury’s England on Land Law at [324]).

119    Under section 4(3) of the Civil Law Act (Cap 43, 1999 Ed), a tenant of life or lives and leasehold tenants (which includes a tenant at will under section 4(4)) are liable for voluntary waste unless the tenancy is without impeachment of waste or there is some other right to commit waste (Principles of Singapore Land Law at [3.19]; Halsbury’s Singapore on Land Law at [170.0950]). Further, the English Court of Appeal in Mancetter suggests that licensees would be liable for voluntary waste (at 455a and 456g), and the author of Rosy Thornton, Property Disrepair and Dilapidations: A Guide to the Law (Fourmat Publishing, 1st Ed, 1992) suggests that it “extends to every occupier of land who is not a trespasser” (at 24).

120    The case of Mancetter is instructive in understanding the tort of waste.

(a)     The material facts of Mancetter are as follows:

(i)       The plaintiff granted a lease of an industrial building to a tenant, who was permitted to cut holes in the walls of the building to install extractor fans and pipes. The fans and pipes ensured that the building remained wind and weatherproof despite the holes.

(ii)       A few years later, the first defendant purchased the tenant’s fixtures at the building (including the said fans and pipes) and took over the original tenant’s occupancy of the building.

(iii)       The first defendant subsequently vacated the building and removed the fans and pipes without patching up the holes in the walls, which meant that the building was no longer wind and weatherproof.

(b)     The English Court of Appeal discussed the law concerning the tort of waste and made several findings:

(i)       Voluntary waste requires a commissive or positive act rather than a mere omission (at 454b, 455i, 457f).

(ii)       The first defendant had an obligation to make good or repair (“Waste Repair Obligation”) damage left behind by the removal of tenant’s fixtures by filling the holes in the wall after the fans and pipes were removed. If the holes were not filled, the reversion of the property suffered damaged as the building was no longer wind and weatherproof (at 454e and 457f).

(iii)       For the Waste Repair Obligation to arise, the damage had to be structural rather than decorative; and the obligation would not arise where the damage was de minimis, such as where screw or nail holes are left behind (at 454e-f, 455d-e).

(iv)       The act of waste was not committed by the original tenant when the holes were first cut in the wall. This was since the cutting of the holes was not inconsistent with the purport of the tenancy with the original tenant and hence permitted by the plaintiff (at 456h-457e, where Kerr LJ disagreed with Sir George Waller’s dissenting view).

(v)       Kerr LJ also expressed his view that cases involving the tort of waste would be rare, as the reinstatement or repair of a property would usually be governed by contractual stipulations that the parties may be bound to sue on (at 456c-h).

121    Further, the destruction of a property while using it for the purpose of the occupancy in a reasonable and proper manner (as opposed to a wilful or negligent manner) is not waste (Halsbury’s England on Land Law at [325] and Woodfall’s Law of Landlord and Tenant, Release 115 January 2019 at [13.114], citing Saner v Bilton (1878) 7 ChD 815 and Manchester Bonded Warehouse Co v Carr (1880) 5 CPD 507 (“Manchester Bonded Warehouse”)). In Manchester Bonded Warehouse, the court considered whether the defendant was liable for waste when a building fell because it was overloaded with flour, and made the following findings which are instructive:

The question in these cases is whether it is the tenant's duty to ascertain what he can do with safety to the property, or whether he is not entitled to assume that it is fit to be used for the purposes for which it is let and for which it is apparently fit. We are of opinion that the latter is the true view, and that, in the absence of an express agreement to that effect, a tenant is not liable for the destruction of the property let to him if such destruction is in fact due to nothing more than a reasonable use of the property, and any use of it is in our opinion reasonable provided it is for a purpose for which the property was intended to be used, and provided the mode and extent of the user was apparently proper, having regard to the nature of the property and to what the tenant knew of it and to what as an ordinary business man he ought to have known of it. To hold a tenant liable for the destruction of the property by its reasonable use as above explained, would be to hold him liable for latent faults and defects in the property demised. We are of opinion that he is not liable for such faults and defects, in the absence of some express agreement on his part imposing such liability upon him.

122    In view of the above, it is clear that the tort of voluntary waste has a narrower scope than a contractual obligation to reinstate the premises to its original condition since voluntary waste requires a positive act rather than a mere omission; and the Waste Repair Obligation only arises if a positive act results in damage that goes beyond a de minimis level. Consequently, it is conceptually wrong for the Plaintiff to argue that the tort of waste imposes a duty on the Defendant to reinstate the Carved-Out Area to the condition it was in when the Defendant first started occupying it in 2003.[note: 181]

Permissive waste

123    Permissive waste refers to an omission that results in damage, such as allowing a property to fall into disrepair by neglect (Mancetter at 453; Principles of Singapore Land Law at [3.20]; Clerk & Lindsell at [18-98]; Halsbury’s Singapore on Land Law at [170.0948]; Halsbury’s England on Land Law at [324]).

124    While a tenant for years may be found liable for permissive waste, a leasehold tenant would not (Mancetter at 453; Principles of Singapore Land Law at [3.20]; Clerk & Lindsell at [18-98]; Halsbury’s Singapore on Land Law at [170.0950]; Halsbury’s England on Land Law at [324]).

125    Consequently, permissive waste is not relevant to the present matter.

The effect of the Settlement Deed on the Plaintiff’s reliance on the tort of voluntary waste

126    As explained at [82]-[85] above, Clause 5.1 of the Settlement Deed resulted in a holistic settlement of all claims relating to the management and affairs of the Plaintiff and the Defendant.

127    The question that arises is whether claims arising from the tort of voluntary waste fall within the purview of the management and affairs of the Plaintiff and the Defendant.

128    The Plaintiff argues that it does not,[note: 182] while the Defendant argues otherwise.[note: 183]

129    I find that the scope of the settlement under Clause 5.1 of the Settlement Deed does not extend to the tort of voluntary waste. As mentioned at [118] above, voluntary waste refers to an act that results in the destruction of the property. I do not see how this can be characterised as an issue relating to the management and affairs of the Plaintiff and the Defendant under Clause 5.1 of the Settlement Deed.

130    Consequently, I find that the Settlement Deed does not preclude the Plaintiff from relying on the tort of voluntary waste.

The alleged instances of voluntary waste

The Steel Structure

131    I have found that the Defendant was entitled to remove the Steel Structure under the Settlement Deed (see [91] above).

132    The Defendant’s removal of the Steel Structure was therefore permitted by the Plaintiff and cannot amount to an act of voluntary waste.

The two DBs

133    I have found that the Defendant was not permitted to remove the two DBs under the Settlement Deed (see [104] above).

134    Consequently, the Defendant’s removal of the two DBs was an act that destroyed part of the Carved-Out Area and constituted an act of voluntary waste.

The Fencing

135    It is not disputed that the Fencing was built by the Defendant and present at the Carved-Out Area when the Settlement Deed was entered into.

136    The Plaintiff alleges that the Defendant committed the tort of waste by failing to remove the Fencing, which is an omission by the Defendant.[note: 184]

137    As it is clear that voluntary waste requires a positive act rather than an omission, the Plaintiff’s claim vis-à-vis the removal of the Fencing fails.

The Uneven Ground Surface

138    There is an Uneven Ground Surface because:

(a)     Certain parts of the ground were raised (“Raised Platforms”) compared to the surrounding areas that were consequently lower in height (“Ground Level Areas”).[note: 185] The Raised Platforms were made of concrete and Tanks were placed on them.[note: 186]

(b)     Certain parts of the ground were depressed when compared with the Ground Level Areas (“Depressed Areas”).[note: 187]

It is not disputed that the Raised Platforms and Depressed Areas (and hence the Uneven Ground Surface) existed when the Settlement Deed was entered into.

139    The Plaintiff’s allegations surround the Defendant’s failure to restore the Uneven Ground Surface by levelling it. This would require the Defendant to remove the Raised Platforms and raise the Depressed Areas to match the height of the Ground Level Area.[note: 188] However, any failure by the Defendant to remove the Raised Platforms or raise the Depressed Areas are omissions rather than positive acts, which do not attract liability for voluntary waste.[note: 189]

140    For the Plaintiff to succeed in its claim, it must therefore show that the Waste Repair Obligation arose due to damage to the existing Raised Platforms or Depressed Grounds when the Tanks were removed,[note: 190] with such damage going beyond a de minimis level. This would be similar to the situation in Mancetter, where the plaintiff was able to show that the Waste Repair Obligation arose due to damage (ie. the holes in the wall that had structural significance) when the fans and pipes were removed.

141    In this regard, the Plaintiff has not given any evidence showing that actionable damage was caused by the removal of the Tanks. At its highest, the photographs relied on by the Plaintiff show some bulging and differences in the colour of the ground of the Raised Platforms where the Tanks were previously located[note: 191] – the alleged damage did not go beyond a de minimis level as it did not have any structural significance (unlike the situation in Mancetter). Further, the Plaintiff’s evidence is that any alleged depressions were minor in nature, which again does not go beyond the de minimis level required.[note: 192]

142    Further, I am mindful that the placement of the Tanks on the Raised Platforms was permitted by the Plaintiff prior to the Settlement Deed.[note: 193] This was therefore done in accordance with the purpose of the Defendant’s occupancy of the Carved-Out Area and cannot amount to waste (see [121] above). To this end, I do not agree with the Plaintiff that the Defendant should be precluded from relying on this argument because it was not specifically pleaded[note: 194] as: (a) it is trite that it is the material facts, rather than the legal results or consequences, that need to be pleaded (How Weng Fan and others v Sengkang Town Council and other appeals [2023] 2 SLR 235 at [19]); and (b) the material facts relating to the purpose of the Defendant’s occupancy of the Carved-Out Area have been pleaded.[note: 195]

143    The Plaintiff’s claim under the tort of waste regarding the restoration of the Uneven Ground Surface therefore fails.

Conclusion on Issue 4

144    The Settlement Deed does not preclude the Plaintiff from relying on the tort of waste, which the Plaintiff has proven vis-à-vis the two DBs.

Issue 5 – The Defendant is liable to pay the Plaintiff $14,017

145    The Plaintiff is only entitled to damages relating to the Defendant’s removal of the two DBs, which was in breach of the Settlement Deed and also attracted liability under the tort of waste.

146    The Plaintiff has quantified its claim for the re-installation of the two DBs at $28,997 based on an invoice dated 11 March 2021 issued by its contractor ELS (“11 Mar 2021 Invoice”).[note: 196]

147    According to the explanation of ELS’s Soh, the 11 Mar 2021 Invoice covered the following areas of work (including 7% GST):[note: 197]

(a)     $13,054 for the installation of the two DBs;

(b)     $963 for the preparation of a single line diagram relating to the two DBs; and

(c)     $14,980 for electrical works relating to an air compressor that had nothing to do with the two DBs.

148    I therefore find that the Plaintiff is entitled to damages of $14,017 in relation to the Defendant’s removal of the two DBs (ie. the work set out at [147(a)] and [147(b)] above), plus interest at the rate of 5.33% per annum from the date of writ to the date of judgment.[note: 198]

Conclusion

149    A summary of my findings is as follows:

(a)     The Plaintiff succeeds in its claim against the Defendant for damages in relation to the removal of the two DBs. The Defendant is liable to pay the Plaintiff $14,017 plus interest at the rate of 5.33% per annum from the date of writ to the date of judgment.

(b)     The Plaintiff’s claim against the Defendant regarding the removal of the Steel Structure, the failure to remove the Fencing and the failure to restore the Uneven Ground Surface fails.

150    The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

151    In closing, I thank counsel for the Plaintiff, Mr Chu Hua Yi and his team, and counsel for the Defendant, Mr Philip Ling and his team, for the helpful submissions.

[note: 1]Plaintiff’s Opening Statement dated 15 April 2024 (“PFOpening”)_[1]-[2].

[note: 2]Defence (Amendment No. 2) (“DF”)_[5A(a)]; Affidavit of evidence-in-chief (“AEIC”) of Lim Tiong Beng (“PFAEIC_Tony”)_[6]-[7], [10]-[12]; AEIC of Lim Tong Yam (“DFAEIC_George”)_[11].

[note: 3]PFAEIC_Tony_[13]; DFAEIC_George, [11], [17]-[18].

[note: 4]AEIC of Lin Xiaoxian (“PFAEIC_Darren”)_[10(3)].

[note: 5]DF_[5A(b)]- [5A(c)]; DFAEIC_George_[12].

[note: 6]DF_[5A(d)]; PFAEIC_Tony_[13], [22(f)]; DFAEIC_Geroge_[17].

[note: 7]DF_[5A(g)]; PFAEIC_Tony_[23]; DFAEIC_George_[21]; 2PBOD_217-218.

[note: 8]PFAEIC_Tony_[24]-[25]; DFAEIC_George_[21], [31].

[note: 9]DF_[5A(m)].

[note: 10]DFAEIC_George_[9]-[10].

[note: 11]2TRANS_PDF14:15-PDF15:24, PDF17:2-8. *[Day of Trial]TRANS_[PDF Page Number]:[Lines in Transcript].

[note: 12]PFAEIC_Tony_[27]-[28]; DFAEIC_George_[20].

[note: 13]DF_[4], [5B(a)]; PFAEIC_Darren_[4]; DFAEIC_George_[24]-[25].

[note: 14]Defendant’s Closing Submissions dated 2 August 2024 (“DFClosingSubs”)_[13]. The written terms of the 2003 Agreement as set out in a Tenancy Agreement dated 1 March 2003 are inadmissible pursuant to section 52 of the Stamp Duties Act 1929 (2021 Rev Ed) see [43]-[544] of this Judgment.

[note: 15]1AB_120; 1TRANS_PDF23:17-20, PDF26:1-5; 5TRANS_PDF165:6-9.

[note: 16]Statement of Claim (Amendment No. 3) (“SOC”)_[2B].

[note: 17]SOC_[3]; DF_[6].

[note: 18]DFAEIC_George_[37]; 1TRANS_PDF65:22-23, PDF117:1-3; 2TRANS_PDF32:22-25.

[note: 19]1AB_16.

[note: 20]1AB_30, 93-98.

[note: 21]1AB_30-31.

[note: 22]1AB_21.

[note: 23]SOC_[6].

[note: 24]PFAEIC_Darren_[21]; PFAEIC_Tony_[61].

[note: 25]SOC_[6]; PFAEIC_Darren_[22]; PFAEIC_Tony_[62].

[note: 26]PFAEIC_Darren_[24]-[25]; PFAEIC_Tony_[63]-[64].

[note: 27]SOC_[10].

[note: 28]PFAEIC_Darren_[25].

[note: 29]PFOpening_[7]; 3TRANS_PDF7:21-PDF8:7.

[note: 30]PFAEIC_Darren_[29]-[30]; PFAEIC_Tony_[69]-[70].

[note: 31]PFAEIC_Darren_[36]; PFAEIC_Tony_[76].

[note: 32]2DBOD_6; 1TRANS_PDF152:13-PDF154:4. One of the DBs is labelled as DB-A on 2DBOD_6, while the other is near to the exit E2 on 2DBOD_3. See also AEIC of Soh Eng Chee (“PFAEIC_Soh”)_[11], 16; 5TRANS_PDF20:19-PDF21:12

[note: 33]PFOpening_[17].

[note: 34]PFOpening_[18]-[21]; Plaintiff’s Closing Submissions dated 2 August 2024 (“PFClosingSubs”)_[65]-[68].

[note: 35]PFOpening_[22]-[24]; PFClosingSubs_[60]-[64].

[note: 36]PFopening_[25]-[29]; PFClosingSubs_[40]-[44].

[note: 37]DFAEIC_George_[6]; DFClosingSubs_[85]-[94].

[note: 38]Defendant’s Opening Statement dated 16 April 2024 (“DFOpening”)_[12], 15-16; DFClosingSubs_[10(c)].

[note: 39]DFOpening_5-12; DFClosingSubs_[10(a)].

[note: 40]DFOpening_14; DFClosingSubs_[10(b)].

[note: 41]DFOpening_13-14; DFClosingSubs_[74]-[76].

[note: 42]PFClosingSubs_[13], [37].

[note: 43]PFClosingSubs_[40]-[43].

[note: 44]DFClosingSubs_[10(a)], [66]-[68].

[note: 45]DFClosingSubs_[10(b)], [47].

[note: 46]4AB_3.

[note: 47]PFAEIC_Tony_[50]; PFAEIC_Darren_[13(5)].

[note: 48]PFAEIC_Tony_[47]; PFAEIC_Darren_[13(2)].

[note: 49]PFAEIC_Darren_404.

[note: 50]2DBOD_3; 1TRANS_PDF132:23-PDF133:11.

[note: 51]PFAEIC_Darren_[13(2)].

[note: 52]PFAEIC_Darren_[13(4)].

[note: 53]DFClosingSubs_[39]; 3TRANS_PDF103:1-12, PDF109:23-24, PDF110:19.

[note: 54]Plaintiff’s Reply Submissions dated 23 August 2024 (“PFReplySubs”)_[32].

[note: 55]2TRANS_PDF46:23-PDF49:4, PDF78:11-PDF79:5, PDF80:22-PDF81:19.

[note: 56]DFAEIC_George_[30]; AEIC of Lim Poh Eng Nancy (“DFAEIC_Nancy”)_[15].

[note: 57]PFAEIC_Tony_[24]-[25]; DFAEIC_George_[21], [31].

[note: 58]DFAEIC_George_[31]; DFAEIC_Nancy_[16].

[note: 59]DFAEIC_George_[33]; DFAEIC_Nancy_[18].

[note: 60]DFAEIC_George_[34]; DFAEIC_Nancy_[18]-[19].

[note: 61]DFAEIC_George_[34]; DFAEIC_Nancy_[19]; 2AB_5-6.

[note: 62]2AB_232.

[note: 63]DFAEIC_George_ [35]; DFAEIC_Nancy_[20]-[22].

[note: 64]PFClosingSubs_[39].

[note: 65]5TRANS_PDF166:14-16, PDF178:25-PDF179:5.

[note: 66]PFAEIC_Darren_[10(4)]-[10(10)]; PFAEIC_Tony_[39]-[40]; AEIC of Lim Pei Pei (“DFAEIC_Beth”)_[9]-[14]; 1AB_120-136.

[note: 67]5TRANS_PDF178:18-24.

[note: 68]DFClosingSubs_[23]; 1TRANS_PDF22:12-15; 2TRANS_PDF27:13-16.

[note: 69]1AB_3-6.

[note: 70]Notes of Evidence dated 3 April 2024.

[note: 71]5TRANS_PDF140:15.

[note: 72]9TRANS_PDF60:1-21.

[note: 73]PFClosingSubs_[5].

[note: 74]DFClosingSubs_[13]-[21].

[note: 75]9TRANS_PDF60:1-21.

[note: 76]PFClosingSubs_5(5); PFReplySubs_[11]-[12]

[note: 77]9TRANS_PDF60:11-21.

[note: 78]5TRANS_PDF140:15.

[note: 79]5TRANS_PDF141:20-PDF142:4.

[note: 80]SOC_[2A(3)].

[note: 81]PFClosingSubs_[5(9)].

[note: 82]Asirham at [12].

[note: 83]Asirham at [12].

[note: 84]PFClosingSubs_[6].

[note: 85]PFReplySubs_[16]-[17].

[note: 86]1AB_120; 1TRANS_PDF23:17-20, PDF26:1-5; 5TRANS_PDF165:6-9; DFClosingSubs_[13].

[note: 87]DFAEIC_Nancy_[23].

[note: 88]5TRANS_PDF165:6-PDF166:13.

[note: 89]5TRANS_PDF164:16-22, PDF166:2-8.

[note: 90]DFClosingSubs_[22]-[31].

[note: 91]2AB_5-6.

[note: 92]2AB_232.

[note: 93]2AB_5-6; PFAEIC_Tony_[42].

[note: 94]2AB_232; PFAEIC_Tony_[43].

[note: 95]PFClosingSubs_[43].

[note: 96]PFClosingSubs_[43].

[note: 97]PFClosingSubs_[41]-[42].

[note: 98]SOC_[2A(3)].

[note: 99]PFClosingSubs_[41].

[note: 100]PFClosingSubs_[32]-[35], [40]-[43].

[note: 101]DFClosingSubs_[48]-[58], [69]-[72].

[note: 102]1AB_30-31.

[note: 103]2AB_469, 471, 473, 475.

[note: 104]1AB_144.

[note: 105]1AB_128-129, 133-134

[note: 106]2TRANS_PDF70:8-12, PDF71:11-21.

[note: 107]2TRANS_PDF35:9-19, PDF36:20-PDF37:24.

[note: 108]SOC_[5]-[5A].

[note: 109]PFOpening_[18]; PFClosingSubs_[51]-[52].

[note: 110]PFOpening_[19(3)]; PFClosingSubs_[53]-[54].

[note: 111]PFAEIC_Tony_[69]-[72], [76]-[77]; PFAEIC_Darren_[29]-[32], [36]-[37].

[note: 112]DFClosingSubs_[10(c)], [99]-[149].

[note: 113]1AB_93.

[note: 114]1AB_96.

[note: 115]DFOpening_[12], 15-16; DFClosingSubs_[10(c)].

[note: 116]DFAEIC_George_[92].

[note: 117]DFAEIC_George_[37]; 1TRANS_PDF65:22-23, PDF117:1-3; 2TRANS_PDF32:22-25.

[note: 118]1AB_16.

[note: 119]1AB_21.

[note: 120]1AB_31.

[note: 121]PFClosingSubs_[32]; DFClosingSubs_[93].

[note: 122]2TRANS_PDF32:14-25; 1TRANS_PDF117:1-3.

[note: 123]PFClosingSubs_[66]; PFReplySubs_[64(a)]; 1AB_191; 6TRANS_PDF149:9-12, PDF162:13-15.

[note: 124]PFClosingSubs_[51].

[note: 125]DFClosingSubs_[99]-[129].

[note: 126]PFAEIC_Tony_[70]; 6TRANS_PDF69:1-4.

[note: 127]DFAEIC_George_[83], 246

[note: 128]PFClosingSubs_[55]-[58]; DFClosingSubs_[102]-[105].

[note: 129]6TRANS_PDF86:1-PDF87:11, PDF89:11-PDF92:22, PDF94:7-11, PDF115:20-25, PDF198:8-PDF199:18; DFAEIC_George_[84], 246; 9TRANS_PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 130]3TRANS_PDF81:16-PDF82:7; PFAEIC_Tony_[70].

[note: 131]3TRANS_PDF82:8-PDF83:12.

[note: 132]PFAEIC_Darren_[1]; 1TRANS_PDF73:13-19.

[note: 133]PFClosingSubs_[51(3)].

[note: 134]9TRANS_PDF17:20-PDF18:15, PDF23:21-25, PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 135]DFAEIC_George_[83]-[84], 246, 248.

[note: 136]DFAEIC_George_[83]-[84]; 1DBOD_36.

[note: 137]1DBOD_41.

[note: 138]DFAEIC_Nancy_[1].

[note: 139]9TRANS_PDF17:20-PDF18:15, PDF23:21-25, PDF27:23-PDF28:10, PDF33:2-PDF34:19.

[note: 140]1AB_93.

[note: 141]1TRANS_PDF112:15-18.

[note: 142]1TRANS_PDF87:9-17.

[note: 143]3TRANS_PDF71:7-16; 4TRANS_PDF5:10-PDF7:20.

[note: 144]1TRANS_PDF87:9-17.

[note: 145]1TRANS_PDF110:20-24, PDF112:5-18, PDF113:4-8; PFReplySubs_[6].

[note: 146]1TRANS_PDF114:6-9.

[note: 147]1TRANS_PDF104:17-PDF106:9; AEIC of Zheng Zubin (“DFAEIC_Zheng”)_[5]-[6].

[note: 148]DFAEIC_Zheng_[12].

[note: 149]8TRANS_PDF5:14-23.

[note: 150]8TRANS_PDF10:12-PDF11:14.

[note: 151]PFAEIC_Darren_[31]; 1TRANS_PDF92:6-11.

[note: 152]1TRANS_PDF93:17-PDF94:19, PDF95:4-12, PDF104:3-PDF105:13, PDF107:17-PDF108:15.

[note: 153]PFAEIC_Soh_[10]; 5TRANS_PDF13:4-12, PDF47:17-23.

[note: 154]3DBOD_18.

[note: 155]5TRANS_PDF12:12-19.

[note: 156]3DBOD_18.

[note: 157]5TRANS_PDF19:10-18.

[note: 158]PFClosingSubs_[51(6)].

[note: 159]1TRANS_PDF140:7-PDF141:12, PDF144:14-20, PDF154:24, PDF157:25-PDF158:4.

[note: 160]1TRANS_PDF140:22-141:12, PDF142:3-12, PDF158:5-24.

[note: 161]3TRANS_PDF114:14-20.

[note: 162]1TRANS_PDF182:3-10.

[note: 163]AEIC of Lim Xiao Wei Leroy (“DFAEIC_Leroy”)_6; 1TRANS_PDF143:5-24.

[note: 164]1AB_151-152.

[note: 165]1TRANS_PDF142:3-12, PDF144:21-PDF145:10.

[note: 166]PFAEIC_Darren_[27]-[28]; 1TRANS_PDF145:11-PDF148:16; AEIC of Ang Chin Teong (“DFAEIC_Ang”) _[16].

[note: 167]1TRANS_PDF147:9-16; DFAEIC_Leroy_[13], 26.

[note: 168]PFClosingSubs_[54(3)]; PFReplySubs_[67].

[note: 169]1TRANS_PDF142:3-12, PDF144:21-PDF145:10.

[note: 170]DFClosingSubs_[146].

[note: 171]1AB_151-152.

[note: 172]DFClosingSubs_[147]-[148].

[note: 173]9TRANS_PDF39:1-9, PDF40:15-24.

[note: 174]1AB_96.

[note: 175]2DBOD_6; 1TRANS_PDF152:13-PDF154:4. One of the DBs is labelled as DB-A on 2DBOD_6, while the other is near to the exit E2 on 2DBOD_3. See also PFAEIC_Soh_[11], 16; 5TRANS_PDF20:19-PDF21:12.

[note: 176]DFClosingSubs_[149].

[note: 177]PFClosingSubs_[54(4)].

[note: 178]PFClosingSubs_[62].

[note: 179]DFClosingSubs_[85]-[94].

[note: 180]DFClosingSubs_[74]-[76].

[note: 181]PFClosingSubs_[60]-[64]; PFReplySubs_[48].

[note: 182]PFClosingSubs_[70]; PFReplySubs_[54].

[note: 183]DFClosingSubs_[85]-[94]; Defendant’s Reply Submissions dated 23 August 2024 (“DFReplySubs”)_[37]-[49].

[note: 184]DFReplySubs_[9(a)].

[note: 185]3TRANS_PDF39:22-PDF51:2.

[note: 186]3TRANS_PDF8:11-PDF9:15, PDF11:22-PDF12:21, PDF20:17-PDF21:19, PDF40:1-5; 6TRANS_PDF169:20-PDF170:24.

[note: 187]3TRANS_PDF44:15-22, PDF46:10-PDF47:7; PFAEIC_Soh_[5]; 4TRANS_PDF77:13-PDF80:23.

[note: 188]3TRANS_PDF39:22-PDF51:2; 4TRANS_PDF71:17-PDF72:23, PDF74:6-11.

[note: 189]DFReplySubs_[9(a)].

[note: 190]PFReplySubs_[53].

[note: 191]1AB_161-175; 3DBOD_3-17.

[note: 192]4TRANS_PDF80:15-23.

[note: 193]DFClosingSubs_[84].

[note: 194]PFClosingSubs_[64].

[note: 195]DFReplySubs_[30].

[note: 196]PFAEIC_Darren_[39]; 1AB_109.

[note: 197]5TRANS_PDF31:13-PDF34:8.

[note: 198]PFReplySubs_[69].

"},{"tags":["Criminal Law – Offences – Using criminal force knowing it to be likely to outrage modesty","Criminal Procedure and Sentencing – Sentencing – Whether custodial threshold crossed"],"date":"2024-11-07","court":"Magistrate's Court","case-number":"Magistrate's Arrest Case No MAC-900854-2023, Magistrate's Appeal No 9180-2024-01","title":"Public Prosecutor v Koh Chee Leong @ Tan Chee Leong","citation":"[2024] SGMC 77","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32441-SSP.xml","counsel":["Kiera Yu (Attorney-General's Chambers) for the Public Prosecutor","Ryan David Lim (Public Defender's Office) for the Defendant."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Kessler Soh","html":"Public Prosecutor v Koh Chee Leong @ Tan Chee Leong

Public Prosecutor v Koh Chee Leong @ Tan Chee Leong
[2024] SGMC 77

Case Number:Magistrate's Arrest Case No MAC-900854-2023, Magistrate's Appeal No 9180-2024-01
Decision Date:07 November 2024
Tribunal/Court:Magistrate's Court
Coram: Kessler Soh
Counsel Name(s): Kiera Yu (Attorney-General's Chambers) for the Public Prosecutor; Ryan David Lim (Public Defender's Office) for the Defendant.
Parties: Public Prosecutor — Koh Chee Leong @ Tan Chee Leong

Criminal Law – Offences – Using criminal force knowing it to be likely to outrage modesty

Criminal Procedure and Sentencing – Sentencing – Whether custodial threshold crossed

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9180/2024/01.]

7 November 2024

District Judge Kessler Soh:

Introduction

1       Mr Koh Chee Leong @ Tan Chee Leong is 66 years of age.

2       On 31 October 2022, around noon, he boarded an ascending escalator (the “Escalator”) leading out of the Raffles Place MRT Station (the “MRT Station”). He boarded on the left side. There were people standing ahead of him. He moved to the right and walked up the Escalator on the right side. He arrived behind a 37-year-old woman (the “Victim”) who was standing on the right side. The Victim felt her right buttock being touched by from behind. It was a quick touch with the fingers of a hand. Stunned and shocked, she turned around to confront the person behind her. It was the defendant. He denied touching her, saying that his left arm had bumped into her accidentally. But his act of touching her with his fingers was witnessed by another person (an independent witness) who was standing on the defendant’s left when the incident occurred.

3       The defendant was charged with outraging the modesty of the Victim, an offence under s 354(1) of the Penal Code 1871 (2020 Rev Ed) (“Penal Code 1871”). He disputed the charge. His defence was that he was moving up the Escalator quickly and did not notice the Victim. He noticed her only just before he collided into her. His left lower arm made physical contact with her right buttock accidentally and he did not touch her intentionally. I did not find his account to be credible. It was contradicted by the clear and credible testimony of the Victim, who was corroborated by the independent witness. On 15 July 2024, I found the defendant guilty and convicted him on the charge.

4       The Prosecution sought a sentence of six to eight weeks’ imprisonment, on the basis that the offence occurred within the space of a public transport network. The Defence disagreed and submitted for a fine of $2,000 and not more than $3,000. I accepted the submission of the Defence. On 19 September 2024, the defendant was sentenced to a fine of $2,500.

5       The defendant filed the present appeal against his conviction the same day. The payment of the fine was stayed and he is on bail pending the appeal. (No appeal has been filed against the sentence.)

6       These grounds of decision set out my reasons for finding the defendant guilty of the charge and briefly explain my reasons for imposing a fine rather than a custodial sentence.

Trial

Charge

7       The charge against the defendant was as follows:

MAC-900854-2023

You […] are charged that you, on 31 October 2022, at about 12.10 p.m., on the escalator at Exit A of Raffles Place MRT Station, 5 Raffles Place, Singapore 048618, did use criminal force to [the Victim, a 37-year-old woman], to wit, by touching her right buttock over her clothes, knowing it to be likely[note: 1] that you will thereby outrage her modesty, and you have thereby committed an offence punishable under section 354(1) of the Penal Code 1871.

Prosecution’s case

Evidence of Victim

8       The gist of the testimony of the Victim, a 37-year-old woman (PW1), was as follows:[note: 2]

(a)     On 31 October 2022 (sometime before 12.10 pm), she alighted from a train at Raffles Place MRT Station with her husband and two children.

(b)     They subsequently took the ascending Escalator at Exit A of the MRT Station. She boarded the Escalator and stood on the right side while her six-year-old daughter stood on the left side next to her. (Her husband was a few steps higher in front of her with a stroller and their three-year-old daughter.)

(c)     On the way up, somewhere at the middle of the Escalator, she felt a “five finger points” touch on her right buttock from behind her. It was “touch and go”, from the bottom up. She was “stunned and shocked” and immediately turned around to see who had touched her. She saw the defendant standing directly behind her, one step below her on the Escalator. She asked him why he touched her buttock. He denied touching her. He said that he had bumped into her accidentally and that it was his left lower arm that made contact. [note: 3]

(d)     She then turned to the person standing next to the defendant, on the left side of the Escalator, and asked the person whether he saw the defendant touch her. The person (subsequently ascertained to be “Mr Naim”, PW3) affirmed that he saw the defendant touch her.[note: 4]

(e)     They all alighted at the top of the Escalator. The Victim continued to confront the defendant, and he continued to deny touching her. The Victim then asked Mr Naim again whether he had seen the defendant molest her. Mr Naim affirmed that he did and asked the defendant why he had to stand so close to the Victim. The Victim also told her husband about the incident. She showed her husband how she was touched by holding her left hand in a bowl shape with her five fingers and her palm facing upwards and touching her husband’s right buttock with her five fingers.[note: 5]

(f)     Subsequently, she reported the matter to staff at the MRT Station and the police were notified.

9       (A police report was subsequently filed stating that “female pax reported being touch”.[note: 6] The defendant was arrested at about 1.32 pm for an offence of outrage of modesty.[note: 7])

Corroboration by independent witness

10     The Victim’s account of the incident on the Escalator was corroborated by Mr Naim (Mr Naim Khan bin Alih, PW3).

11     The Prosecution initially had difficulty locating Mr Naim to arrange for him to testify. Mr Naim was a Malaysian and had returned to Malaysia. Efforts by the police to contact him had been unsuccessful.

(a)     The Prosecution applied, under s 32(1)(j)(ii) of the Evidence Act 1893, to admit in evidence Mr Naim’s statement to the police, on the basis that despite reasonable efforts to locate him he could not be found. The defence objected to the application.[note: 8] An ancillary hearing was conducted to determine if Mr Naim’s statement should be admitted in evidence. At the ancillary hearing, the investigation officer Thian Si Min (“IO”, PW2) testified about the extensive efforts undertaken by her (from 22 August 2023) to try to contact Mr Naim to attend the trial as a witness (in November 2023), without success.[note: 9] After the IO’s testimony, the ancillary hearing was adjourned (on 23 November 2023) for parties to tender written submissions. The matter was fixed for a pre-trial conference (“PTC”) for further hearing dates to be taken.

(b)     Further hearing dates were given on 11, 12 and 24 April 2024. At a PTC on 8 April 2024, a few days before the further hearing, the Prosecution informed that they had managed to contact Mr Naim and he was able to attend the hearing on 24 April 2024.

(c)     The trial resumed on 24 April 2024 (with the hearing dates on 11 and 12 April 2024 vacated). Given that Mr Naim would be coming to court to give his evidence, the Prosecution withdrew their application to admit Mr Naim’s statement to the police, and the ancillary hearing was discontinued.

12     The gist of Mr Naim’s testimony was as follows:[note: 10]

(a)     On 31 October 2022, he was on his way to work (at Burger King, Marina Bay Link). His work started at 12.00 pm, and he was late for work.[note: 11]

(b)     He boarded the Escalator at the MRT Station and stood on the left side. This was one step below the Victim who was on the right side.[note: 12]

(c)     He saw “an uncle” (whom he identified as the defendant and described as the “molester”) going up the Escalator and standing “exactly behind” the Victim, on the step “right behind” her, on the right side of the Escalator. The defendant stood behind the Victim as there was nowhere else to go.[note: 13]

(d)     He saw the defendant reaching out for the Victim’s right buttock with his left hand. The defendant’s palm was open and he used his fingers to touch her. Mr Naim was “shocked” when he saw this. (In cross-examination, Mr Naim demonstrated the action by stretching out his left arm with his palm facing upwards and five fingers outstretched.)[note: 14]

(e)     The Victim appeared “angry, trauma, shocked” following the touch. She asked the man repeatedly why he touched her; he denied it, saying that he did not. The man said that he bumped into her accidentally and that his left lower arm had bumped into her. [note: 15]

(f)     The Victim then asked him (Mr Naim) whether he saw what the defendant did, and he told her that he saw.[note: 16]

(g)     Mr Naim was shown CCTV footage of the top of the Escalator (referred to below, at [15]). He testified that the Victim asked him to reconfirm what he saw, and he confirmed that he saw the defendant touch her. The Victim also explained to her husband what had happened and was “recreating the event” (as shown in the CCTV footage, below at [15(d)]). (Mr Naim said this was “exactly the same” as how he had observed the defendant touching the Victim.)[note: 17]

(h)     As Mr Naim was about to leave to go to work, the Victim asked him for his contact details and they exchanged phone numbers.[note: 18]

CCTV footage

13     Two CCTV footages of the Escalator were tendered in evidence.[note: 19]

14     One CCTV footage (labelled “MRT Bottom”) was 20 seconds long and showed the view from the bottom of the Escalator. It showed the following, among other things:

(a)     The Victim boarded the Escalator and stood on the right side, with her six-year-old daughter on her left (at about 0:04);

(b)     Mr Naim boarded the Escalator on the left side (at about 0:06);

(c)     The defendant boarded the Escalator on the left side (at about 0:13) and shortly after moved to the right side and walked up the Escalator (at about 0:16 – 0:20).

15     The second CCTV footage (labelled “MRT Top”) was 55 seconds long and showed the view from the top of the Escalator. It showed the following, among other things:

(a)     The Victim’s husband pushing a pram with their three-year-old daughter and leaving the Escalator, with their six-year-old daughter beside him (at about 0:11);

(b)     The Victim stepped off the Escalator on the left side, with her body turned to speak to the defendant and Mr Naim who were one step behind her (at about 0:15 – 0:17);

(c)     The Victim continued to confront the defendant at the top of the Escalator, with her husband and Mr Naim looking on (at about 0:17 – 0:37);

(d)     The Victim showed her husband how the defendant had touched her, by touching her husband’s right buttock with the five fingers of her left hand (at about 0:38 – 0:40);

(e)     The Victim spoke to Mr Naim as he was about to leave (at about 0:48 – 0:55).

16     There was no CCTV footage of the middle segment of the Escalator. Based on the estimations of the Defence, which was put in cross-examination to the IO, this “blind spot” between the CCTV footages of MRT Bottom and MRT Top was about eight seconds, and what transpired between the parties during that time could not be seen.[note: 20]

Defence

17     The case for the Defence was that the physical contact between the defendant and the Victim was an accidental one between his left lower arm and her right buttock.[note: 21] He was moving up the Escalator quickly and only noticed the Victim right before he collided into her. [note: 22] The collision was inadvertent and he did not touch her intentionally.

Evidence of Defendant

18     The gist of the Defendant’s testimony was as follows:[note: 23]

(a)     On that day, he took a train to the Raffles Place MRT Station. He exited the fare gate and withdrew $3,000 from an ATM at the MRT Station. He intended to go to the Arcade to change the money into Thai Baht for an upcoming trip to Thailand.

(b)     He boarded the Escalator to exit the MRT Station. He was initially on the left side. After boarding the Escalator, he decided to quicken up his steps as he was overwhelmed with the exchange rate and excited about the trip. He moved to the right side of the Escalator and began proceeding up the Escalator. At that time, he was carrying a sling bag on his right side, with the bag hung from right shoulder and both his hands grasping the strap of his sling bag.[note: 24]

(c)     As he was climbing up the steps, he was looking at the steps in front of him. He did not notice there was a woman in front, and he “bumped” into her. He bumped into her buttocks with his “lower left arm” (near his elbow).[note: 25]

(d)     The woman turned around and in a loud, aggressive tone asked why he had touched her backside. He denied touching her, as he had accidentally bumped into her. She moved to the left side and kept accusing him, and turned to Mr Naim and said, “You saw him touch me, right?” as if pressuring Mr Naim to say “Yes”.[note: 26]

(e)     (The defendant also testified about what happened subsequently, how the woman continued to accuse him, and how he maintained that he did not touch her.)

Issue

19     The issue to be determined was one of credibility: whether the evidence of the Victim and the independent witness (Mr Naim) was credible and proved the Prosecution’s case, or whether reasonable doubt had been raised from the defendant’s account of the incident.

Findings and Verdict

Victim was a credible witness

20     I found the Victim to be a truthful witness and her evidence was credible. Her evidence was that while she was on the Escalator she felt a quick and light touch on her right buttock. She could feel that the touch involved the five fingers of a hand and that it was not accidental. She was shocked and outraged, and turned around to confront the person behind her, who was the defendant.

21     The Defence suggested that she could have been mistaken as she did not actually see the touch. I accepted her evidence, however, that she could tell that it was a “five finger points” touch and that an accidental bump from an arm, as claimed by the defendant, would have felt very different.[note: 27]

Corroborated by independent witness

22     The Victim’s evidence was corroborated by Mr Naim, an independent witness. Mr Naim saw, right in front of him, the defendant touching the right buttock of the Victim with his left hand; and Mr Naim was shocked by what he saw.

23     The Defence sought to discredit the evidence of Mr Naim by suggesting, among other things, that his evidence was cavalier with a tendency to exaggerate, and that he viewed his role as helping the Victim to “get justice” such that it influenced the answers he gave to the Court.[note: 28] I did not accept the Defence’s characterisation of Mr Naim’s evidence. As was pointed out by the Prosecution, Mr Naim had been largely unwilling to testify, and extensive efforts had to be taken by the IO to locate him (as explained above, at [11]) and to persuade him to give his evidence in court. Mr Naim had left his business in Malacca, Malaysia, and travelled to Singapore to testify; he “didn’t want to come” but did so out of a sense of justice; and he rejected the Defence’s suggestion that his answers were influenced by his desire to help the Victim:

Q    I suggest to you that you are letting your desire to help, yes, you are letting your desire to help influence your answers to the Court today.

A    My desire influence---no, no. To be […]very honest, […] Your Honour, I left my business, my small business […] that needs me […] at Malaysia […] for justice. And to be honest, […] I didn’t want to come. And then, my mum told me […] what happened because I was so stressed. I said I don’t want to come. Maybe I can give, what is it called, […] a video testament. And […] my mum asked me […] what is this all about? I said, […] I am the witness of […] molesting happen. And […] she told me that, what if that is happen to your sister, and I said, you know what, say no more, […] I’m leaving now. I mean, like, I’m going. So, my desire helping is not influenced this at all. This guy across of me probably has […] the same age of my father. So, it will be inhumane of me to accuse him […] for the things that he didn’t do unless I 100% sure that he did that. So, yah. [note: 29]

24     I found Mr Naim to be a truthful witness. He did not know either the Victim or the defendant, and there was no reason for him to exaggerate or give false evidence to implicate the defendant. His evidence of what he saw was credible, as it happened right in front of him, and he could not have been mistaken about what he saw.

Discrepancies were minor and not material

25     There was an apparent discrepancy between the evidence of the Victim and of Mr Naim as to which side of the Escalator the Victim was standing on when she was touched.

(a)     The Victim said that she was standing on the right side of the Escalator when she felt the touch.[note: 30]

(b)     Mr Naim said that the Victim stood on the right side of the Escalator, one step in front of him, and that she had moved to the left side before the touch occurred; he could not be sure how far to the left she had moved before the touch occurred and his guess was that it was one step.[note: 31]

26     There was thus an inconsistency between the testimony of the Victim and Mr Naim. In my assessment, however, it was a minor inconsistency attributable to an imperfect recollection of events and not a material discrepancy. It did not diminish the overall credibility of the Victim’s account or the corroborative effect of Mr Naim’s testimony. Whether the Victim was standing fully at the right side of the Escalator or one step to the left, it was physically possible for the touch to have happened, and it was a touch that the Victim felt and Mr Naim saw right in front of him.

Defence did not raise reasonable doubt

27     The defendant denied outraging the Victim’s modesty. He did not deny that a touch occurred, but the gist of his defence was that in his rush to go up the Escalator, he may have accidentally bumped into her buttock with his left elbow.

28     His evidence, however, was contradicted by the Victim who was certain that she was touched with five fingers of a hand, and that a bump from an elbow would have felt different. Her evidence was clear, coherent and credible, and corroborated by the independent testimony of Mr Naim. Conversely, I did not find the account given by the defendant to be credible.

29     The CCTV footage showed the defendant walking up the Escalator (above, at [14(c)]). He was not dashing up the Escalator or proceeding at such a speed that he could not stop himself. He could not have failed to notice the Victim standing on the right side, and he would have had enough time to stop behind her without bumping into her. In short, his defence that he was moving at such a speed up the Escalator that he could not stop himself from bumping into the Victim was simply not credible.

30     Moreover, it was clear from the evidence of the Victim and Mr Naim that the defendant’s touching of the Victim could not have been accidental. Both the Victim and Mr Naim gave a consistent description and demonstration of the defendant touching the Victim’s right buttock with the fingers of his left hand, with the fingers and palm facing upwards. That would not have been a natural position for the defendant’s hand, and the irresistible inference must be that he had touched her deliberately rather than accidentally.

31     The Defence sought to argue that it was “physically improbable” or “impossible” for the defendant to touch the Victim’s right buttock with his left hand if she was standing on the right side of the Escalator.[note: 32] I did not see why such a touch was impossible or improbable.

(a)     If the Victim was standing on the right side of the Escalator and the defendant was one step below and directly behind her, his left hand if held across his abdomen would be directly behind her right buttock. (This could be seen in Figure 3 at p 10 of the Defence’s Closing Submissions.) It would have been physically possible for him to position his hand with his palm upwards and quickly reach out to touch the Victim’s right buttock. Even if the Victim had taken one step to the left (according to Mr Naim), such a touch would also have been possible.

(b)     Indeed, the case for the Defence was that the defendant’s lower left arm had bumped into the Victim’s right buttock. If such contact was possible with the lower left arm, surely such contact would have been even easier with the left hand.

(c)     Crucially, based on the credible testimony of the Victim and Mr Naim, the defendant using the fingers of his left hand to touch the Victim’s right buttock while standing behind her did in fact happen.

Verdict

32     In short, I found that the Defence had not raised any reasonable doubt to the credible testimony given by the Victim and corroborated by Mr Naim. Neither the Victim nor Mr Naim had any reason to lie and falsely accuse the defendant. From their credible testimony, I found that the defendant did touch the Victim’s right buttock (over her clothes) with the fingers of his left hand. The touch was intentional, not inadvertent. And, in doing so, he knew it was likely that it would outrage her modesty. Accordingly, I found that the Prosecution had proven the charge against the defendant beyond a reasonable doubt, and he was found guilty and convicted on the charge.

Sentencing

33     I now explain briefly the sentence imposed.

34     The sentencing framework for offences under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) was laid down by the High Court in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”). The High Court adopted a “two-step sentencing bands” approach (at [45]-[49]).

(a)     At the first step, the court considers the offence-specific factors to ascertain the gravity of the offence. The offence-specific factors include the degree of sexual exploitation, the circumstances of the offence and the harm caused to the victim. The court then places the offence within one of three bands of imprisonment according to the gravity of the offence.

(b)     At the second step, the court considers the offender-specific factors, which are the aggravating and mitigating factors that relate to the offender generally but which are not offence-specific. The court then calibrates the appropriate sentence for that offender.

35     Both the Prosecution and the Defence agreed that the present offence fell within Band 1 of the Kunasekaran framework.[note: 33] I agreed, considering that the degree of sexual exploitation was low, the touch was fleeting with no skin-to-skin contact and, while the Victim was outraged by the offence, there was no evidence of serious harm.

36     Under Band 1, the indicative sentence would be “less than five months’ imprisonment”. Parties agreed that given that the maximum sentence for an offence under s 354(1) had been increased from two years (under the Penal Code (Cap 224, 2008 Rev Ed) when Kunasekaran was decided) to three years (under the Penal Code 1871 with effect from 1 March 2022), the indicative sentencing range for Band 1 should be increased proportionately. The sentencing range for Band 1 would thus be less than 7½ months’ imprisonment (which would include a fine).[note: 34]

37     The Prosecution submitted that the custodial threshold had been crossed in the present case and sought a sentence of six to eight weeks’ imprisonment. This was on the basis that the offence occurred within the space of a public transport network.

(a)     The Prosecution referred to the case of PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 (“Siow Kai Yuan Terence”).[note: 35] The offender in that case pleaded guilty to a charge of outraging a victim’s modesty by touching her buttocks over her shorts with his finger while ascending an escalator at an MRT station. (Two other offences, where the offender had earlier touched the victim’s right thigh twice on an MRT train, were taken into consideration for sentencing.) The prosecution sought a sentence of six weeks’ imprisonment; the District Court ordered that the offender be placed on probation. The prosecution appealed. The High Court accepted that the custodial threshold had been crossed and imposed a sentence of two weeks’ imprisonment. It was held that the key offence-specific aggravating factor was the fact that the offences were committed on the public transport network (at [88]); and, given the need to deter the commission of such offences on the public transport network, the custodial threshold was crossed in that case (at [89]).

(b)     The Prosecution submitted that the custodial threshold would be crossed if an offence of outrage of modesty was committed in any stations and transit areas which formed the public transport system, such as train platforms and escalators leading out of the train stations. [note: 36]

38     While I accepted that the rationale in Siow Kai Yuan Terence should extend to areas which formed part of the public transport network, the present case could be distinguished from Siow Kai Yuan Terence. I accepted the submission of the Defence that the fact that the offence occurred on an escalator in an MRT station should not in itself be an aggravating factor such as to cross the custodial threshold.[note: 37] The offence in the present case occurred on an escalator leading out of the MRT station, in an area beyond the fare gates to which non-commuters of the public transport network also had access. It was, to that extent, no different from an escalator in a shopping mall or an office building. In Siow Kai Yuan Terence, on the other hand, the offence occurred after the offender and the victim had alighted from an MRT train and the offender was following the victim up an ascending escalator before they had exited the control station: the offence had thus occurred in an area that was clearly an integral part of the public transport network.

39     Furthermore, the offending behaviour in Siow Kai Yuan Terence was somewhat more egregious than in the present case. There, the offender, having earlier touched the victim’s right thigh twice on the MRT train, followed her when she alighted from the train and touched her buttocks as they were ascending an escalator. In the present case, the defendant had not met the Victim before, and his encounter with her on the Escalator was unpremeditated and unplanned.

40     Considering the facts of the present case, I accepted the submission of the Defence that the custodial threshold had not been crossed. A fine would suffice if the act of molest was a “relatively minor one”: PP v Chow Yee Sze [2011] 1 SLR 481 at [12] (which was referred to in Kunasekaran at [62]). The following were some examples where the offenders were fined (after appealing to the High Court):

(a)     In Ng Chiew Kiat v PP [1993] 3 SLR(R) 927, an employer was fined $4,000 for grabbing his foreign domestic worker’s buttock.

(b)     In Teo Keng Pong v PP [1996] 2 SLR(R) 890 (“Teo Keng Pong”), a tuition teacher was fined $500 on each of four charges for caressing a 13-year-old student’s thigh and a fifth charge of caressing her thigh and squeezing her back.

(c)     In Soh Yang Tick v PP [1998] 1 SLR(R) 209, an employer was fined $2,000 for slapping his secretary’s buttock lightly on the spur of the moment.

(In all these cases, the offenders had no antecedents and were convicted after a trial, as in the present case.)

41     I accepted the submission of the Defence that the present case concerned a “relatively minor” act of molest where a fine would suffice. It was a fleeting touch, over clothing with no skin-to-skin contact, and not at the private parts. The defendant had a prior clean record and the offence was out of character. The offence was less aggravated than in the three precedents above: the defendant was not in a position of authority (unlike the offenders in the three precedents) and there was no vulnerable victim (unlike in Teo Keng Pong).[note: 38]

42     As to the amount of fine, the defence submitted that a fine of around $2,000 and in any event not more than $3,000 would be sufficient.[note: 39] Two (more recent) precedents were cited by the Defence:

(a)     In Ng Kum Weng v PP [2021] SGHC 100 (“Ng Kum Weng”), the offender was convicted after a trial on four charges, three of which were for outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). The offender was a patron at a music lounge and the victims were waitresses. One charge involved the offender sliding his hand on a victim’s right thigh, skin-on-skin. The offender was sentenced to a fine of $3,000 for that offence, which was upheld on appeal.

(b)     In PP v Balakrishnan s/o Kuppusamy [2016] SGDC 76 (“Balakrishnan”), the offender was convicted after a trial on two charges of outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). The victim was a senior care associate or nursing aide who was employed by the offender and his family to take care of their ailing and elderly mother. The offender had tapped the victim on the buttocks in his home. He was fined $5,000. In imposing a fine “on the higher end of the range”, the court noted (at [71] of the Grounds of Decision) that this was not the first instance that the offender had violated the victim’s modesty.

The Defence submitted that both these cases were significantly more aggravated than the present case, and that the fine for the present case should be significantly lower.

43     In deciding on the fine to be imposed, I accepted the submission of the Defence that the facts of the present case were far less aggravated than in Ng Kum Weng and Balakrishnan. Conversely, I also considered that the prescribed maximum imprisonment term for offences under s 354(1) had been enhanced from two years (when the precedents were decided) to three years, which applied to the present offence (as mentioned above, at [36]). All in, I considered that a fine slightly lower than in Ng Kum Weng would be appropriate.

44     Accordingly, I imposed a fine of $2,500 (in default, one week’s imprisonment).

45     The payment of the fine has been stayed and the defendant is on bail pending the appeal.

[note: 1]At the trial, the charge before the court stated that the defendant touched the Victim “intending to” outrage her modesty: see the charge reproduced in the Defence’s Closing Submissions dated 28 June 2024 (the “Defence’s Closing Submissions”, marked DS1) at [6]. This was incorrect. It was later clarified by the Prosecution that the intended charge was that the defendant committed the act “knowing it to be likely” that it would outrage the Victim’s modesty: Prosecution’s Reply Submissions dated 5 July 2024 (“Prosecution’s Reply Submissions”, marked PS2) at [4]-[6]. This error was corrected and the charge amended before the verdict of the court was delivered. It did not result in any prejudice to the defendant given his line of defence that the touch was unintentional.

[note: 2]Transcript, 22 November 2023 (Day 1): 5:18–27:13 (p 5 line 18 – p 27 line 13).

[note: 3]Transcript, 22 November 2023 (Day 1): 10:21-27; 11:5-19; 12:11-18; 13:3-10; 15:13-21; 16:16-17; 46:3-23.

[note: 4]Transcript, 22 November 2023 (Day 1): 15:24–16:6; 16:16–17:16.

[note: 5]Transcript, 22 November 2023 (Day 1): 19:25-27; 20:3-22; 21:3-20.

[note: 6]First Information Report (Exh P1).

[note: 7]Police Report (NP299) (Exh P3).

[note: 8]Transcript, 23 November 2023 (Day 2): 5:14–14:3.

[note: 9]Transcript, 23 November 2023 (Day 2): 26:7–36:5.

[note: 10]Transcript, 24 April 2024 (Day 3): 12:27–25:32.

[note: 11]Transcript, 24 April 2024 (Day 3): 14:1-17.

[note: 12]Transcript, 24 April 2024 (Day 3): 16:13–22.

[note: 13]Transcript, 24 April 2024 (Day 3): 17:14-30; 18:14-32.

[note: 14]Transcript, 24 April 2024 (Day 3): 19:14-28; 20:16-20; 31:1-10.

[note: 15]Transcript, 24 April 2024 (Day 3): 20:21-29; 73:30–74:15.

[note: 16]Transcript, 24 April 2024 (Day 3): 21:6-13.

[note: 17]Transcript, 24 April 2024 (Day 3): 23:22–24:15.

[note: 18]Transcript, 24 April 2024 (Day 3): 24:18-29.

[note: 19]DVD+R marked Exh P2.

[note: 20]Transcript, 24 April 2024 (Day 3): 7:18-21; 8:4-9, 28-32; 9:1-9.

[note: 21]Defence’s Closing Submissions at [41].

[note: 22]Defence’s Reply Submissions dated 5 July 2024 (“Defence’s Reply Submissions”) at [10].

[note: 23]Transcript, 24 April 2024 (Day 3): 85:5–106:1.

[note: 24]Transcript, 24 April 2024 (Day 3): 85:5-24; 93:4–94:23; 96:1-23.

[note: 25]Transcript, 24 April 2024 (Day 3): 96:26-29; 97:8–98:7.

[note: 26]Transcript, 24 April 2024 (Day 3): 98:17–99:11.

[note: 27]Transcript, 22 November 2023 (Day 1): 27:5-13.

[note: 28]Defence’s Closing Submissions at [33].

[note: 29]Transcript, 24 April 2024 (Day 3): 10:14-19; 68:1-19.

[note: 30]Transcript, 22 November 2023 (Day 1): 12:21-29.

[note: 31]Transcript, 24 April 2024 (Day 3): 16:15-22; 33:25-30; 76:28-32; 78:5-9.

[note: 32]Defence’s Closing Submissions at [31].

[note: 33]Prosecution’s Sentencing Submissions dated 5 August 2024 (“Prosecution’s Sentencing Submissions”) at [10]; Mitigation Plea dated 6 August 2024 (“Mitigation Plea”) at [3].

[note: 34]Prosecution’s Sentencing Submissions at [6]; Mitigation Plea at [3].

[note: 35]Prosecution’s Further Sentencing Submissions dated 18 September 2024 (“Prosecution’s Further Sentencing Submissions”).

[note: 36]Prosecution’s Further Sentencing Submissions at [7]-[8].

[note: 37]Transcript, 13 August 2024 (Day 6): 4:1-30.

[note: 38]Mitigation Plea at [3]-[8].

[note: 39]Mitigation Plea at [8].

"},{"tags":["Agency – Appointment requirements – Whether contractual relationship between Claimant and Defendant established such that Claimant entitled to commission under terms of contract – Whether Claimant discharged requisite burden of proof to show it was effective cause of sale of Defendant’s property and entitled to commission on sale"],"date":"2024-10-28","court":"District Court","case-number":"Suit No 407 of 2023","title":"Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.","citation":"[2024] SGDC 280","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32439-SSP.xml","counsel":["Peter Ong Lip Cheng and Marcus Lim Wei Jie (Peter Ong Law Corporation) for the claimant","Mato Kotwani, Peter Doraisamy and Wong Min Hui (PDLegal LLC) for the defendant."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Sia Aik Kor","html":"Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.

Landplus Property Network Pte Ltd v Y.H.H Marine Engineering Pte. Ltd.
[2024] SGDC 280

Case Number:Suit No 407 of 2023
Decision Date:28 October 2024
Tribunal/Court:District Court
Coram: Sia Aik Kor
Counsel Name(s): Peter Ong Lip Cheng and Marcus Lim Wei Jie (Peter Ong Law Corporation) for the claimant; Mato Kotwani, Peter Doraisamy and Wong Min Hui (PDLegal LLC) for the defendant.
Parties: Landplus Property Network Pte Ltd — Y.H.H Marine Engineering Pte. Ltd.

Agency – Appointment requirements – Whether contractual relationship between Claimant and Defendant established such that Claimant entitled to commission under terms of contract – Whether Claimant discharged requisite burden of proof to show it was effective cause of sale of Defendant’s property and entitled to commission on sale

28 October 2024

Judgment reserved.

District Judge Sia Aik Kor:

1       This is the Claimant’s claim for the amount of $166,246.00 being the agreed commission of 1.75% of $9.5 million for the sale of the Defendant’s property at 1 Kian Teck Crescent Singapore (“the Property”) which was ultimately completed through another estate agent.

Background

2       The Claimant is a company incorporated in Singapore and is in the business of real estate agency. The Defendant is a company incorporated in Singapore and is in the business of mechanical engineering.

The Claimant’s Case

3       The Claimant’s case is that Damien Choo (“Damien”), salesperson agent and an associate and representative of the Claimant, was engaged on or about 28 January 2019 by one Flora Teo (“Flora”) via WhatsApp to market the Property for sale. Flora is the personal assistant to the Managing Director of the Defendant, Yap Hoon Hong (“Mr. Yap”). Through a referral from another agent, Woo Su Fen Angeline (“Angeline”), Damien arranged for the viewing of the Property by CGW Construction & Engineering Pte Ltd (“CGW”) on 14 June 2021, 14 July 2021 and 20 September 2021. On 20 October 2021, there was an agreement between Flora and Damien via WhatsApp that the Defendant would pay a commission of 1.75% on the sale of the Property to CGW at the price of S$9.5 million.

4       However, the sale of the Property to CGW fell through on 8 November 2021 because the parties could not agree on the terms of the Option to Purchase (“OTP”). Unbeknownst to the Claimant at the material time, the Property was subsequently sold to CGW for the same price pursuant to an OTP dated 27 January 2022 and following completion of the sale, the Defendant paid the commission of $166,250 plus GST, being the commission of 1.75% of the purchase price of the Property at $9.5 million to the company of Tan Kok Kim Kelly (“Kelly”), another estate agent. The Claimant claims to be the effective cause of the transaction, which is denied by the Defendant.

The Defendant’s Case

5       The Defendant’s case is that there was no contractual relationship between Damien or the Claimant and the Defendant. Flora did not have the authority to make decisions on behalf of the Defendant and Damien was aware that (a) his commission could be discussed if he was able to secure a suitable buyer who was willing to purchase the Property at a suitable price and on terms which the Defendant could agree to; and (b) Mr Yap would only consider offers as genuine if the agent brought to him a draft OTP from the potential purchaser together with the 1% option fee. It is not disputed that CGW did not provide a cheque of the 1% option fee in October or November 2021. In the alternative, the Defendant contends that the Claimant was not engaged on an exclusive basis and the Defendant was at all material times at liberty to accept offers from other property agents.

Issues to be Determined

6       The following issues arise in this case:

(a)     Was the Claimant engaged by the Defendant and what were the terms of the engagement?

(b)     Is an effective cause clause implied into the contract between the parties?

(c)     Was the Claimant the effective cause of sale?

Issue (a): Was the Claimant engaged by the Defendant and what were the terms of the engagement?

7       It is well established that the relationship between an agent and his principal is a contractual one with any entitlement to commission being governed by the terms of that contract: Deans Property Pte Ltd v Land Estates Apartments Pte Ltd [1994] 3 SLR(R) 804 (“Deans Property”) at [17]. In the absence of an express contractual term governing the agent’s right to commission, the agent is only entitled to commission if his services were the effective cause of the transaction, this being an implied term of the agency contract: Deans Property at [17].

8       In the present case, there is no written contract between the Claimant and the Defendant. The question is therefore whether an agreement can nevertheless be implied from the conduct of the parties and what the terms of the agreement was. In this regard, I accepted that the appointment of agents can be a rather informal process. According to Angeline [note: 1], the seller merely gives the agent information on the property including the price that they want and the agent would contact the seller when the agent has a viewing. Frequently the terms of the engagement such as the percentage of commission will only be discussed when the agent brings a serious buyer. The standard market practice was to pay 1% to 2% for a sale and 1 month’s commission for a two-year lease.

9       In addition, the market practice in Singapore was that the seller, the Defendant in this case, would pay the commission of the agent, regardless of whether the agent is acting for the seller or the buyer[note: 2]. In the present case, there is no evidence that the Claimant was acting for the buyer, given that there was already an agent acting for CGW in October 2021 by the name of Edmund. In any event, I note that Flora had referred to Damien as “our agent” in her WhatsApp message on 27 September 2021[note: 3]. In addition, on 21 October 2021, when Damien messaged Flora about how the commission would be split, he had specifically referred to himself as the seller agent and Edmund as the buyer agent[note: 4], which Flora did not dispute.

10     I would state that I found Flora to be an unreliable witness on the stand. For reasons unknown, Flora would take a long time in thinking over and in answering the questions posed to her and kept asking for simple questions to be repeated. At various junctures, she provided no answer and was afraid to commit to an answer. Given that she is a degree holder who should have no difficulty in comprehending the questions put to her, her reticence was unexplained. Accordingly, I did not place much weight on her evidence. There was nevertheless sufficient contemporaneous evidence before me in the form of WhatsApp messages between Damien and her to indicate that the Defendant’s position was that the Defendant and Damien could discuss the commission payable if Damien was able to secure a suitable buyer who was willing to purchase the Property at a suitable price[note: 5] and that Damien had to bring a 1% option fee and an OTP acceptable to the seller. From the messages, these conditions of a 1% cheque and an acceptable OTP appeared to have been conveyed by Damien to another potential buyer besides CGW[note: 6].

11     Given the exchange of WhatsApp messages between Damien and Flora in September and October 2021[note: 7], in particular Damien’s WhatsApp message to Flora on 11 October 2021 that unless the buyer can agree with the OTP and offer a price with cheque, he would not disturb Mr Yap[note: 8], Damien was well aware of the Defendant’s position that he had to bring the 1% option fee and an OTP that is acceptable to the Defendant in order for the Defendant to consider the offer seriously. Damien was also aware that there were other agents marketing the Property and other property agents who approached the Defendant with potential buyers[note: 9].

12     During the trial, the Defendant tried to argue that Flora was not the authorised representative of the Defendant and that Mr Yap alone had the sole authority to make decisions on behalf of the Defendant. However, it was clear from the evidence that while Mr Yap would make the final decision as to whether to sell the Property, Flora was in fact authorised by Mr Yap to represent the Defendant to liaise with all the property agents in relation to the sale of the Property[note: 10]. It was clear from the WhatsApp messages between Flora and Damien that Flora had liaised with Damien within the scope of Mr Yap’s instructions and that if there were any matters which fell outside the scope of Mr Yap’s instructions, she had either said she would check with Mr Yap[note: 11] or had referred Damien to check directly with Mr Yap. This was clearly borne out by the WhatsApp messages where Flora had expressly informed Damien to check directly with Mr Yap regarding an offer from a potential purchaser[note: 12] and where she had replied to Damien that she could not issue an email from the Defendant rejecting the offer because Mr Yap did not give her instructions to do so[note: 13].

13     Based on a WhatsApp text from Flora on 20 October 2021[note: 14], the Defendant had proposed to Damien that the rate of commission be set at 1.75%. This appeared to have been sanctioned by Mr Yap given the following words used by Flora: “Damien, can u double confirm. Whether 1.75% is agreeable. Because i have already reported to my boss when u called me earlier: If ur side change, he will also change his mind.” On the stand, Mr Yap did not dispute that if Damien had successfully sold the Property, he would have been entitled to the commission[note: 15]. However this was subject to Damien bringing the 1% cheque and an OTP that was agreeable to both sides[note: 16]. Damien agreed to this on 21 October 2021 via WhatsApp after he had confirmed with his co-broke agents on the proposed allocation of the commission of 1.75% of the sale price of $9.5 million upon completion[note: 17].

14     There was therefore nothing in the evidence to suggest that Flora had gone beyond her mandate to discuss the 1.75% commission agreed on 21 October 2021. There was also a common understanding between Damien[note: 18] and Flora[note: 19] that the 1% cheque was pending before they would ask Mr Yap to sign the OTP. Given the course of dealings, Damien was entitled to rely on Flora’s messages as representing the Defendant’s position. There was therefore a common understanding between the Claimant and the Defendant by 21 October 2021 and, correspondingly an agreement between the Claimant and the Defendant, that subject to agreement between CGW and the Defendant on terms of the OTP and the production of a 1% cheque for the option fee, the Claimant and his co-broke agents would be paid a commission of 1.75% of the sale price of $9.5 million upon completion. However, the Defendant and CGW could not get past the disagreements on various clauses of the OTP and the cheque was never tendered by CGW. Consequently, the deal fell through on 8 November 2021.

15     Given that the events of 20 and 21 October 2021 had been the subject matter of the parties’ pleadings[note: 20], I do not think this was a case in which the Defendant had been caught unaware by what the Defendant claims to be a shift in the Claimant’s pleaded case. While estate agents are engaged in a rather informal manner, it was clear from the exchange of WhatsApp messages that by 21 October 2021, there was a meeting of minds between the parties as to the amount of commission payable on completion subject to the satisfaction of certain conditions. Correspondingly, I find that there was a contract of agency between the parties.

Isssue (b) – is an effective cause clause implied into the contract?

16     Subject to any special terms or indications in the contract of agency, where the remuneration of an agent is a commission on a transaction to be brought about, he is not entitled to such commission unless his services were the effective cause of the transaction being brought about: Bowstead & Reynolds on Agency (18th Ed, 2006) at para 7-027 cited in Colliers International (Singapore) Pte Ltd v Senkee Logistics Pte Ltd [2007] SGHC 18 (“Colliers”) at [70]. Accordingly, if the Claimant was not the effective cause of sale, the mere existence of a contractual agreement between the parties would not, in and of itself, confer to an agent an unreserved right to a commission in the event of any sale: Colliers at [71].

17     The main reason for implying an effective cause term is to minimize the risk of the principal having to pay double or multiple commissions. Accordingly, an effective cause term provides business efficacy in non-exclusive contracts of agency where multiple agents are engaged to secure a transaction: Turms Advisors APAC Pte Ltd v Steppe Gold Ltd [2024] SGHC 174 at [63] citing EMFC Loan Syndications LLP v The Resort Group plc [2021] EWCA Civ 844 at [72] and [78].

18     In the present case, it is undisputed that Damien was not engaged on an exclusive basis. In the Claimant’s written submissions, it had sought to argue that it would be entitled to the commission to be paid upon the completion of the sale upon securing a buyer at the Defendant’s asking price of $9.5 million and it was not necessary for the Claimant to follow through with the sale of the Property. I do not accept this argument given the evidence on the understanding between the parties. The evidence on the understanding between the parties indicate that the agent had to procure a cheque of 1% of the purchase price from the buyer and an OTP which the buyer was willing to execute and which terms were acceptable to the seller before the agent would be entitled to commission. As it was clear that Damien did not manage to procure the 1% cheque or get CGW to commit to an OTP which terms were acceptable to the Defendant, he did not manage to fulfil the terms upon which parties agreed that the commission would be payable.

19     I do not think that the parties’ understanding was that the agent would nevertheless be entitled to a commission even if he or she was not involved in procuring the 1% cheque or the execution of the OTP provided that there was subsequent completion with the buyer that the agent introduced. This would mean that mere introduction of the eventual buyer would have been sufficient to ground entitlement to the commission and that the agent need not be the effective cause of sale. The parties’ conduct, both before and after 21 October 2021, do not bear this out. Damien was well aware that he had to bring a 1% option fee and an acceptable OTP to the Defendant and had conveyed these conditions to potential buyers. Even after 21 October 2021, he followed up closely with the Defendant on the amendments to the OTP made by CGW. On the Defendant’s part, given that there were multiple agents marketing the Property, it had made clear that it would only seriously consider offers which were accompanied with a 1% cheque and OTP terms which were acceptable.

20     In the absence of further details in the correspondence between the parties as to the other circumstances in which the Claimant would nevertheless be entitled to a commission and given that the understanding between the parties was not inconsistent with the implication of the effective cause term, I think it would be appropriate to imply the effective cause term into the contract of agency between the parties. In fact, the risk of having to pay multiple commissions where there are multiple non-exclusive agents marketing the Property would supply the rationale for implying such a term.

Issue (c) – Was the Claimant the effective cause of the sale?

21     There is no precise definition of what “effective cause” means as the inquiry is fact-specific. The High Court in Grandhome Pte Ltd v Ng Kok Eng [1996] 1 SLR(R) 14 (“Grandhome”) offered some guidance as to what may constitute effective cause at [31]:

Where as in this case it is established that:

(a)    an owner agreed to pay an agent a commission for finding a buyer for a property;

(b)    the agent engendered the interest of a buyer in the property;

(c)    the buyer made an offer for the property which the agent conveyed to the owner;

(d)    the owner eventually sells the property to the same buyer at the same price offered through the agent; and

(e)    (b) and (d) take place within a short space of time;

the agent would have discharged the necessary burden of proof to establish a prima facie case for being the causa causans or effective cause of the sale. The owner can of course seek to show why despite all of this the agent is not the effective cause. But if he fails to do so the agent will succeed.

22     However, the Court of Appeal cautioned in Goh Lay Khim and others v Isabel Redrup Agency Pte Ltd and another appeal [2017] 1 SLR 546 (“Goh”) at [37] that the above-mentioned factors only serve as a rough-and-ready guide in assessing an estate agent’s contributions and that a steadfast adherence to the factors could in some cases lead to a wholly unjust outcome as Lai Siu Chiu J noted in Colliers at [76]. No one factor is determinative and the inquiry requires a holistic assessment of all the relevant facts of each case. To be an effective cause, the agent would have to show that it was “the critical cause”; it is insufficient for the agent to show that it was “one of the causes” of the sale.

How the deal fell through on 8 November 2021

23     On 8 October 2021, Damien forwarded Angeline a draft OTP and informed her that it was non-negotiable[note: 21]. Damien also informed Flora on the same day that he had forwarded the OTP last agreed with Mr. Yap to CGW and told them that the OTP was not negotiable[note: 22].

24     On 11 October 2021, Angeline messaged Damien to inform him that there were some amendments proposed to the OTP[note: 23] and sent the proposed handwritten amendments by CGW to him[note: 24]. The handwritten amendments included the following: (a) 5% deposit instead of 10%; (“Exercise Price Amendment”) (b) deletion of “Purchaser” from the Environmental Baseline Study (“EBS”) Clause at clause 9 (“EBS Amendment”); (c) that if the inability to obtain JTC’s approval is attributable to the Purchaser’s default, neither party shall have any further claim or demand against the other after forfeiture of the deposit (“Waiver Amendment”); and (d) that the Purchaser shall be entitled to rescind the agreement in the event of unsatisfactory replies in respect of below category 5 Road Line Plan[note: 25] (“Road Line Plan Amendment”) . On 12 October 2021, Damien asked Angeline to ask the buyer to make the proposed amendments in red in a word document for him to try to talk to Flora. However, he took the position that the deposit of 10% and the EBS clause should stay and could not be negotiated[note: 26].

25     On 12 October 2021, CGW proposed various amendments to the OTP, based on an offer price of $9.5 million, which, other than minor edits, comprise the following: (a) an amendment to Clause 11(a) such that if the inability to obtain JTC’s approval is attributable to the purchaser’s default, there shall be no further claims or demands against the other after forfeiture of the deposit paid i.e. the Waiver Amendment; and (b) an amendment to Clause 14(c) such that the agreement may be rescinded at the purchaser’s option if unsatisfactory plans or replies are received in respect of “below category 5 of the road Plan Line”[note: 27] i.e. the Road Line Plan Amendment.

26     As set out earlier, there was then an exchange of emails between Flora and Damien as to the commission payable. On 20 October 2021, Flora sent Damien a WhatsApp message to confirm that a commission of 1.75% of the sale price was agreeable for Damien and his co-broke agent[note: 28]. On 21 October 2021, Damien sent Flora a WhatsApp message that he has confirmed this with his co-broke agent and will proceed to wait for the 1% cheque[note: 29]. On 21 October 2021, Angeline forwarded Edmund’s contact to Damien for Damien to take over the matter[note: 30].

27     On 28 October 2021, Damien updated Flora that the co-broke agent was trying to talk to the buyer on 3 issues: (a) an exercise price of 4% instead of 9% i.e. the Exercise Price Amendment; (b) to delete “purchaser” in Clause 9 i.e. the EBS Amendment; and (c) a forfeiture of 1% in Clause 11(a) instead of the full deposit[note: 31] (“Forfeiture Amendment”) and that the “rest of the otp is ok”. Meanwhile, Damien informed Flora on 29 October 2021 that he will start to look for a new buyer again[note: 32].

28     On 1 November 2021, Damien forwarded to Flora a message from Edmund, CGW’s agent, informing Damien that CGW was insisting on their proposal and asking Damien to see if the seller would accept, failing which there would be no deal[note: 33]. Damien then commented to Flora that it looked like they need to find a new buyer again[note: 34]. On 8 November 2021, Damien forwarded to Flora a message informing Edmund that the seller has rejected the buyer’s offer[note: 35].

29     When Damien was cross-examined on this, he replied that he did not go back to Edmund, CGW’s agent, to try and negotiate some middle ground. This was because the seller told him that the OTP was non-negotiable[note: 36]. Damien also agreed that the Defendant had good reasons to not accept the amendments proposed by CGW[note: 37]. Damien was of the view that out of all the amendments proposed by CGW, only the Exercise Price Amendment, the EBS Amendment, the Forfeiture Amendment were outstanding as at 28 October 2021 and that CGW eventually only compromised on the EBS Amendment in the OTP dated 27 January 2022[note: 38]. He did not try to speak to Mr Yap on the Exercise Price Amendment and the Forfeiture Amendment because he was of the view that the amendments were not reasonable and as a seller’s agent, he had advised Flora accordingly[note: 39]. After Edmund informed him on 1 November 2021 that CGW insisted on the changes, he advised Flora that their demands were unreasonable and when Mr Yap agreed with him on 8 November 2021, the deal fell through[note: 40]. He did not attempt to negotiate the terms with Edmund, CGW’s agent as Edmund had told him that the terms were non-negotiable from CGW’s side[note: 41].

What happened after the deal fell through in November 2021

30     Damien was well aware that after the deal fell through in November 2021, the Defendant was also considering renting out the Property and were actively looking for tenants as well[note: 42]. He accepted that there was no evidence that the Defendant went straight to CGW and started negotiating with them[note: 43]. He conceded that the Defendant may have genuinely thought that CGW was no longer interested in the deal and proceeded to look at other options including other potential buyers or renting out the Property[note: 44].

How Kelly came to sell the Property

31     Kelly knew Mr Yap because the Defendant had previously bought industrial property through her in 2012[note: 45]. While she was given a 6-month exclusive agreement to market the Property in 2018, she was unable to procure any buyer and her exclusive agreement was not renewed when it lapsed after 6 months[note: 46]. Kelly was referred to CGW when Steven Lee, the vice-president of NatSteel Holding Pte Ltd sent her a WhatsApp message on 21 January 2022 asking her to assist their client to source for an industrial property. Steven Lee shared some of CGW’s requirements with Kelly, gave her the contact of CGW and asked her to contact CGW directly[note: 47]. Kelly proceeded to call Ms Gong, the director of CGW and the contact shared by Steven[note: 48]. She recommended three properties to CGW and CGW viewed all three properties on 26 January 2022[note: 49]. CGW shortlisted the Property and arranged for a second viewing the next day on 27 January 2022[note: 50].

32     On 26 January 2022, Kelly Tan Kok Kim (“Kelly”) informed Mr Yap that she had a potential buyer and informed the Defendant not to rent the Property[note: 51]. After the viewing on 27 January 2022, CGW decided to buy the Property and made an offer of $9.5 million[note: 52]. On 27 January 2022, Kelly sent a photograph of the cheque for the 1% option fee to Mr. Yap[note: 53]. Kelly had asked Mr Yap if he was comfortable using the OTP which he had previously used when he bought a property through Kelly[note: 54]. As he was, Kelly forwarded the OTP to CGW who proposed two amendments: (1) changing the exercise period from 2 weeks to 3 weeks and (2) changing the exercise fee from 10% to 5%[note: 55]. When Kelly asked them for the reasons for proposing the amendments, CGW explained that they require more time to exercise the option as Chinese New Year was approaching. As the sale process would take six to nine months, CGW found it meaningless to park 10% of the purchase price for such a long period. Kelly sent a photograph of the cheque for the 1% option fee to Mr Yap[note: 56] and explained these reasons to Mr Yap over the phone[note: 57]. In Kelly’s view, a three-week period of exercising the option was reasonable given that it was the Chinese New Year period and most of the lawyers’ offices might be closed[note: 58]. In addition, parking the 10% option fee with the stakeholder was meaningless and there was nothing for Mr Yap to gain or lose when the stakeholder amount was reduced from 10% to 5%[note: 59]. Mr Yap agreed with Kelly on the amendments[note: 60] and subsequently signed the OTP, a draft of which was forwarded to the Defendant on 27 January 2021[note: 61]. According to Kelly, CGW asked who would have to conduct the EBS and she told them that JTC would decide[note: 62]. In the executed OTP dated 27 January 2022[note: 63] which is in a different structure from the one Damien had used in October 2021, (a) the exercise price became 4% instead of 9%, (b) the EBS clause was drafted differently but references to the “Purchaser” remained; (c) the forfeiture amount became 1% instead of 10% but in the event of an inability to obtain JTC’s approval due to the Purchaser’s default, forfeiture of the 1% option money shall be without prejudice to any of the seller’s other rights and remedies; and (d) there is no reference to below Category 5 Road Line Plan in the “requisition” clause.

33     Under cross-examination, Kelly testified that she did not know that before she brought CGW to view the Property in January 2022, CGW had already viewed the Property with another agent on three occasions[note: 64]. She was also unaware that CGW had previously offered $9.5 million for the Property and had proposed amendments to a previous OTP[note: 65]. She agreed that as an ethical agent, she would have contacted Damien if she were aware that the Defendant had brought CGW to view the Property and if she had his contact[note: 66]. She also testified that CGW was initially not keen on a JTC property as there were many constraints. As such, she had spent 2 hours talking to CGW on the obligations which the buyer of a JTC property had to fulfil and explaining that they should be able to fulfil the requirements[note: 67]. Kelly also testified that initially CGW wanted the seller to bear the EBS cost. However, as the EBS clause stated that JTC would decide who should bear the EBS cost, CGW was comfortable with the clause and did not propose any amendments[note: 68].

34     According to Kelly, she negotiated the commission with Mr Yap after she had sent him a screenshot of the 1% cheque deposit and after he had agreed to the amendments proposed by CGW[note: 69]. While she asked for a 2% commission, Mr Yap did not agree and they ultimately settled at 1.75%[note: 70]. The commission of $166,250 (which is 1.75% of $9.5 million) plus GST amounting to $179,550 was ultimately paid to Kelly’s company[note: 71].

Short intervening period between initial interest and eventual sale

35     As Damien thought that the Exercise Price Amendment and the Forfeiture Amendment were not in the seller’s favour, he had advised the Defendant against accepting them[note: 72]. While Damien had told CGW that the OTP was non-negotiable[note: 73], Damien understood that this was not strictly the case as he nevertheless forwarded the amendments proposed by CGW to the Defendant. However, it was clear that he did not try to talk the Defendant round to accepting CGW’s amendments as he felt that the amendments were not reasonable[note: 74].

36     Given that CGW had not, in October or November 2021, provided the cheque of a 1% option fee[note: 75], the Defendant thought that CGW was not genuinely interested in purchasing the Property and rejected the amendments. The evidence reveals that Damien himself was not optimistic about the deal going through, as illustrated in his WhatsApp message dated 29 October 2021 to Flora about having to look for a new buyer. Edmund, CGW’s agent, had also taken a hard stance in not ceding any ground. The parties therefore came to an impasse and abandoned the deal.

37     In the two and a half intervening months, both parties explored other options. The Defendant considered other potential buyers or renting the Property while CGW sourced for other options, which was how they ended up being contacted by Kelly. As Kelly testified and as illustrated by the WhatApp message received by Kelly from Steven, CGW felt that there were many constraints in relation to buying a JTC property and were open to other types of properties such as freehold or URA property[note: 76]. It was also not disputed that CGW viewed two other properties with Kelly.

38     Given the evidence that both parties had moved on to consider other options after they abandoned the deal on 8 November 2021, I do not think that criteria (e) of the Grandhome test was necessarily determinative in the present case. The Claimant had argued that in respect of criteria (e) of the Grandhome test, guidance can be sought from Clause 6(b) of Form 5 Exclusive Estate Agency Agreement for the Sale of Residential Property which provides for the payment of commission if the property is sold within 3 months after the expiry date of the agreement to a buyer whom the estate agent had introduced to the seller during the validity of the agreement. As Damien was engaged on a non-exclusive basis and no written agreement was executed between the parties, I do not think the practice in respect of exclusive agents was applicable in the present case. In any event, as set out earlier, a strict application of the Grandhome test may lead to unfair results and the effective cause inquiry is necessarily a highly fact-sensitive one.

Subsequent Compromise by both the Defendant and CGW

39     In Damien’s view, the concessions made by CGW on the EBS clause which would entail a cost of $10,000 to $20,000 paled in comparison to the concessions made by the Defendant in reducing the exercise fee and the forfeiture amount (from almost $1 million to $95,000)[note: 77]. The EBS or Environmental Baseline Studies is a requirement imposed by JTC in the event of a sale. The purpose is to ensure that there is no contamination of the land before the transfer. From his experience, the requirement is usually imposed on the seller in the majority of cases given that the seller is the one who has been using the land[note: 78]. In Damien’s view, an exercise fee of 10% i.e. $950,000 was more favourable to the Defendant as the JTC approval will take 9 months to a year. The high forfeiture amount will stop the buyer from thinking about exiting the deal if they find another alternative property. It also compensates for the opportunity costs to the seller who would not be able to sell it to other buyers who subsequently offer a higher price. The seller would also need to incur EBS costs and engage lawyers. As such, Damien’s view was that the 1% forfeiture fee was not reasonable for the seller[note: 79]. He did not persuade Mr Yap to accept 5% instead of 10% for the exercise fee because he acted for Mr Yap’s best interest[note: 80]. As the seller’s agent, Damien felt that he had to protect the Defendant’s interest and advised them not to accept the changes as he thought that the changes were unreasonable.

40     I accepted that Damien’s advice on the Exercise Price Amendment and Forfeiture Amendment were well-intentioned but what is in issue here is not an assessment of whether the terms were objectively in the seller’s favour or whether Kelly fell short of Code 6 of the First Schedule (Code of Ethics and Professional Client Care) to the Estate Agents (Estate Agency Work) Regulations 2010, which was in any event not put to Kelly. What was in issue here was whether the buyer and seller could come to a set of terms which both could accept in proceeding to a transaction and whether it was the Claimant or Damien who brought that about.

41     In Damien’s view, he managed to negotiate the sale price of $9.5 million and Kelly would not have been able to bring the deal across the line if he had not narrowed down the area of dispute to just 3 clauses[note: 81]. Although the fact that the agent had introduced the person who became the ultimate purchaser is a factor and a strong factor at that to take into account in deciding if the agent was the effective cause of the sale, it need not by itself be conclusive: Emporium Holdings (Singapore) Pte Ltd v Knight Frank Cheong Hock Chye & Bailieu (Property Consultants) Pte Ltd [1994] SGCA 147 at [24]. The introduction of the ultimate purchaser by an agent to the seller is insufficient to establish that the agent was the effective cause of the sale: Deans Property at [22]. In the present case, while Damien was the one who had introduced CGW to the Defendant and obtained an oral offer of $9.5 million from CGW, he was unable to help parties to arrive at terms that both sides were agreeable to in respect of the OTP. On the stand, Mr Yap admitted that it had been previously communicated to Damien that the OTP was non-negotiable and that he had rejected the four amendments proposed by CGW[note: 82]. He did not inform Damien that he would have been willing to negotiate further because he felt that it was the job of a property agent to try to bridge the gap between the two parties[note: 83]. Based on the message sent by Edmund, CGW’s agent, to Damien on 1 November 2021[note: 84], it would appear that Edmund, CGW’s initial agent, was unable to talk CGW round and CGW insisted on their amendments. It is also clear in the evidence that Damien did not try to persuade Mr Yap to accept the amendments proposed by CGW, not so much because the terms were non-negotiable but because he felt that the proposed amendments were not in the Defendant’s favour[note: 85] and he felt duty-bound to act in the Defendant’s interest as their agent. As such, there was a gap between the parties’ positions on the clauses[note: 86] which neither Damien nor Edmund managed to bridge. Given CGW’s hard stance and Damien’s views on the clauses in October 2021, I do not think it can be said that the Defendant or Mr Yap frustrated the sale or placed a road block to the sale of the Property by Damien by deliberately refusing to negotiate the OTP with CGW.

42     Kelly, on the other hand, was able to find out the reason why CGW were so insistent on the proposed amendments and managed to persuade Mr Yap to see CGW’s perspective that they did not want the money to be tied up for a long period of time. She was also able to point out to Mr Yap that he did not stand to gain from the deposit remaining at 10% in the event the purchase was successful since the difference between the deposit and the option fee would be money held by the stakeholders. Kelly was able to communicate with both CGW and Mr Yap and managed to fulfil Mr Yap’s terms which Damien and his co-broke agents were unable to in October or November 2021: (1) produce a cheque of the 1% option fee from the buyer as a demonstration of its commitment; and (2) talk both parties round to a set of agreed terms and executing a legally binding OTP, which ultimately resulted in the successful completion of the sale of the Property.

43     In determining the effective cause of the sale, it was not a matter of weighing up who had conducted more viewings or the length of such viewings. Such efforts would amount to naught in the absence of a sale and were insufficient in and of themselves to ground an effective cause of sale. A successful transaction involves not just a suitable price but also a time at which the seller is willing to release his property and the buyer is willing to commit to the purchase as well as terms which meet the subjective needs of the parties. This requires a confluence which the agent must help bring about and for which the agent then becomes entitled to the commission.

44     The final set of agreed terms in the OTP involved concessions from both CGW and the Defendant. Both parties were therefore able to agree to a set of clauses, which they were initially at an impasse on as at 8 November 2021. CGW managed to get the exercise fee down from 9% to 4% and the forfeiture fee down to 1%. The Defendant, on the other hand, was happy with the EBS clause which states that JTC would determine the party which would have to bear the cost of the EBS. This was important to the Defendant as he felt that having to do the EBS was a troublesome affair, which necessitates the engagement of a third party. The EBS would take a long time and if the test fails, the Defendant would have to clean up[note: 87]. From a purely legal perspective, it may be said that the Defendant made significant concessions in executing the final version of the OTP but according to Mr Yap, he had been persuaded by Kelly to accept the reduction of the exercise fee from 9% to 4% as he would not be able to use the money in any event, given that this money would be held with his solicitors anyway[note: 88]. Before Kelly spoke with him, he did not think about whether he would get this money or it would be with his lawyer[note: 89]. He did not think that the probability of CGW choosing not to exercise the option or not going through with the purchase was high[note: 90]. In addition, Kelly had advised him that beside the forfeiture of the 1% option fee, they would nevertheless be able to take legal action[note: 91]. Given Mr Yap’s background as a businessman, these commercial and practical perspectives may be more persuasive than the technical legal implications of the proposed amendments. He had given reasonable explanations as to why the Defendant eventually came to accept the set of terms in the OTP that he signed. It was therefore not for the Court to judge what was objectively the best deal for the Defendant and whether or not Mr Yap should have changed his mind in accepting CGW’s proposed amendments. The only relevant inquiry before the Court was whether the Claimant was the effective cause of the sale for which the evidence indicates otherwise.

Distinct and Separate Negotiations

45     There was no evidence to indicate that the Defendant went straight to CGW after the deal fell through on 8 November 2021 to oust the Claimant from the deal or to deprive Damien and his co-broke agents out of their commission or to avoid paying any commission. On the contrary, there is evidence that CGW’s needs for an industrial property had been highlighted to Kelly by a referral from her former client[note: 92] which led to Kelly contacting CGW and subsequently bringing CGW to view the Property and two other properties. The Defendant had also paid Kelly 1.75% of the purchase price as commission. Based on the evidence, the negotiations which led to the eventual sale were distinct and separate from those conducted by Damien and his co-broke agent and were conducted by Kelly. This was not a case in which the chain of causation between the efforts of Damien and his co-broke agents and the eventual sale of the Property to CGW was unbroken.

No legal obligation on Defendant to get Kelly to co-broke with Damien

46     In Damien’s view, the Defendant should have asked Kelly to co-broke with him as he was the one who brought in the buyer, and obtained the price that the Defendant wanted. However, he conceded that there is no legal obligation for the Defendant to do so[note: 93]. As set out earlier, the introduction of the purchaser to the seller was an important but not determinative factor in whether an agent was an effective cause of the sale. However, there is no legal duty for a seller to ensure that an agent who had introduced a purchaser continued to be an effective cause of the sale. Where there were many non-exclusive agents marketing a property, an agent would have to be extremely proactive in seeing a transaction to completion and in earning the corresponding commission.

After-sale Events

47     In the Claimant’s written submissions, it was highlighted that the Defendant continued to string Damien along, even after the sale of the Property, when Flora lied to Damien about the property being leased out, not being for sale and that no more viewings were allowed. The Claimant argued that this showed that Flora was aware of the extensive marketing efforts expended by Damien and that Damien was in fact entitled to the commission as promised for securing CGW as a purchaser. I do not think this argument is meritorious. As set out earlier, the mere fact of marketing efforts was insufficient; they had to be the effective cause of a sale. In my view, Flora could simply have been trying to avoid an awkward position of having to explain to Damien how the Property came to be sold to CGW eventually. I would therefore not accord much weight to her actions after the sale of the Property in ascertaining whether the Claimant was indeed the effective cause of the sale.

Conclusion

48     In the circumstances, while Damien introduced CGW to the Defendant and managed to get CGW to make an oral offer of the eventual purchase price of $9.5 million, CGW walked away without offering a 1% cheque after an impasse on the OTP terms. It was the efforts of Kelly that revived CGW’s interest in the Property and spoke with both CGW and the Defendant to arrive at a set of mutually acceptable terms which eventually led to the sale. Accordingly, I find that the Claimant has failed to discharge the requisite burden of proof to show that it was the effective cause of the sale and I dismiss the claim.

49     The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

[note: 1]Notes of Evidence (“NE”), 18 June 2024, 45/10-19, 96/8 – 97/10

[note: 2]NE, 19 June 2024, 30/18 – 31/4

[note: 3]Damien’s Affidavit of Evidence-in-Chief (“AEIC”) at page 63 – Flora’s WhatsApp (“WA”) message at [27/9/21, 3:20:01 PM]

[note: 4]Damien’s AEIC at page 82 – Damien’s WA message at [21/10/21, 12:21:36 PM]

[note: 5]Flora’s AEIC at pages 45 & 46 - Flora’s WA messages to Damien dated 18 June 2021

[note: 6]Flora’s AEIC at pages 48 – 52 - Damien’s WA messages to Flora dated 20 September 2021 on another potential buyer’s forthcoming submission of a 1% cheque and their draft OTP

[note: 7]Damien’s AEIC at Tab A, pages 54 - 70

[note: 8]Damien’s AEIC at Tab A, page 70 – Damien’s WA message at [11/10/2021, 11:10:45 AM]

[note: 9]NE, 18 June 2024, 23/30-32 – 24/1-3

[note: 10]NE, 7 August 2024, 9/1-32

[note: 11]Damien’s AEIC at Tab A page 67 – Flora’s WA message at [1/10/21, 10:53:34 AM]

[note: 12]Damien’s AEIC at Tab A page 70 – Flora’s WA message at [6/10/21, 1:59:21 PM]

[note: 13]Damien’s AEIC at Tab A page 70 – Flora’s WA message at [6/10/21, 2:24:09 PM]

[note: 14]Damien’s AEIC at Tab A page 81 – Flora’s WA message at [21/10/21, 4:32:12 PM]

[note: 15]NE, 7 August 2024, 16/21-24, 17/15-26

[note: 16]NE, 7 August 2024, 32/2-12, 32/32 - 33/4

[note: 17]Damien’s AEIC at Tab A page 82 – Damien’s WA messages at [21/10/21, 12:21:36 PM] and [21/12/21, 12:21:49 PM]

[note: 18]Damien’s AEIC at page 82 – Damien’s WA message at [21/10/21, 12:22:15 PM] – “Will proceed and wait for the 1% cheque”

[note: 19]Damien’s AEIC at page 82 – Flora’s WA message at [21/10/21, 2:20:59 PM] – “U can provide evidence of 1% cheque first”

[note: 20]Statement of Claim and Defence at [10] – [13]

[note: 21]Angeline’s AEIC at [13] and page 15 – Damien’s WA message to Angeline at [8/10/21, 6:46 PM]

[note: 22]Damien’s AEIC at page 70 – Damien’s WA message to Flora at [8/10/21, 6:54:06 PM]

[note: 23]Damien’s AEIC at page 94 – Angeline’s WA message to Damien at [11/10/21, 4:27:59 PM]

[note: 24]Angeline’s AEIC at [14]

[note: 25]Angeline’s AEIC at Tab C pages 29-33

[note: 26]Damien’s AEIC at Tab B page 94 – Damien’s WA message to Angeline at [12/10/21, 1:23:59 AM]

[note: 27]Damien’s AEIC at page 72-76

[note: 28]Damien’s AEIC at page 81 – Flora’s WA message to Damien at [20/10/21, 4:23:12 PM]

[note: 29]Damien’s AEIC at page 82 – Damien’s WA message to Flora at [21/10/21, 12:21:49 PM] and at [21/10/21, 12:22:15 PM]

[note: 30]Damien’s AEIC at page 106 – Angeline’s WA message to Damien at [21/10/21, 12:46 PM]

[note: 31]Damien’s AEIC at page 82 – Damien’s WA message to Flora at [28/10/21, 2:48:24 PM] and at page 83 – Damien’s WA message to Flora at [29/10/21, 1:48:15 PM]

[note: 32]Damien’s AEIC at page 83 – Damien’s WA message to Flora at [29/10/21, 1:49:40 PM]

[note: 33]Damien’s AEIC at page 84 - picture forwarded by Damien to Flora at [1/11/21, 11:08:19 AM]

[note: 34]Damien’s AEIC at page 84 – Damien’s WA message to Flora at [1/11/21, 11:08:35 AM]

[note: 35]Damien’s AEIC at page 86 - picture forwarded by Damien to Flora at [8/11/21, 2:35:58 PM]

[note: 36]NE, 18 June 2024, 49/6-13

[note: 37]NE, 18 June 2024, 55/20 – 57/8, 57/15- 27, 57/28 – 58/25, 59/1-10, 59/18 - 60/5

[note: 38]NE, 18 June 2024, 68/29 – 71/6

[note: 39]NE, 18 June 2024, 71/8-27, 73/9- 74/5, 78/9 – 79/12

[note: 40]NE, 18 June 2024, 74/28 – 75/9

[note: 41]NE, 18 June 2024, 75/14-18

[note: 42]NE, 18 June 2024, 51/1-13

[note: 43]NE, 18 June 2024, 51/29 – 52/1

[note: 44]NE, 18 June 2024, 52/2-16

[note: 45]NE, 19 June 2024, 110/19-26

[note: 46]Yap’s AEIC dated 29 Dec 2023 at [27], NE, 19 June 2024, 114/28-31

[note: 47]NE, 19 June 2024, 119/18-31 and 2SBOD 4-8

[note: 48]NE, 19 June 2024, 120/8-15

[note: 49]NE, 19 June 2024, 112/12-15

[note: 50]NE, 19 June, 122/16-32

[note: 51]Yap’s AEIC at [49] and page 31

[note: 52]NE, 19 June 2024, 112/22-23

[note: 53]Yap’s AEIC at page 33

[note: 54]NE, 19 June 2024, 113/1-11

[note: 55]NE, 19 June 2024, 113/12-15

[note: 56]NE, 19 June 2024, 126/5-15

[note: 57]NE, 19 June 2024, 113/31 – 114/19

[note: 58]NE, 19 June 2024, 126/28 – 127/2

[note: 59]NE, 19 June 2024, 127/1-14

[note: 60]NE, 19 June 2024, 127/13-17

[note: 61]Yap’s AEIC at pages 38 - 44

[note: 62]NE, 19 June 2024, 128/20-24

[note: 63]SBOD 53-59

[note: 64]NE, 5 August 2024, 15/21-32

[note: 65]NE, 5 August 2024, 18/13 -19/23

[note: 66]NE, 5 August 2024, 17/12-26

[note: 67]NE, 5 August 2024, 21/10 – 22/6

[note: 68]NE, 5 August 2024, 27/31 – 28/7

[note: 69]NE, 19 June 2024, 129/31-130/2

[note: 70]NE, 19 June 2024, 130/4-6

[note: 71]NE, 19 June 2024, 130/23-31

[note: 72]NE, 18 June 2024, 71/8-27

[note: 73]Damien’s AEIC at page 70 – Damien’s WA message to Flora at [8/10/21, 6:54:06 PM]

[note: 74]NE, 18 June 2024, 73/27 - 74/13

[note: 75]Yap’s AEIC at [45], NE, 8 August 2024, 38/18-22

[note: 76]2SBOD 7

[note: 77]NE, 19 June 2024, 14/15-24

[note: 78]NE, 19 June 2024, 12/11-23

[note: 79]NE, 19 June 2024, 15/13 - 16/7

[note: 80]NE, 19 June 2024, 16/30-17/3

[note: 81]NE, 19 June 2024, 18/29-19/3

[note: 82]NE, 7 August 2024, 46/1-17, 48/13-25

[note: 83]NE, 7 August 2024, 50/14-22

[note: 84]Damien’s AEIC, Tab I at pages 133-134

[note: 85]NE, 18 June 2024, 73/9- 74/13

[note: 86]NE, 18 June 2024, 93/12-23

[note: 87]NE, 8 August 2024, 70/20-26

[note: 88]NE, 8 August 2024, 62/13-19

[note: 89]NE, 8 August 2024, 62/25-30

[note: 90]NE, 8 August 2024, 25/27-32, 26/25 - 27/2

[note: 91]NE, 8 Aug 2024, 26/6-12, 61/7-29

[note: 92]NE, 5 August 2024, 3/7-27

[note: 93]NE, 18 June 2024, 83/1-84/5

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for driving under disqualification set out in Fam Shey Yee v PP 2012 3 SLR 927 should be applied","Criminal Procedure and Sentencing – Sentencing – Whether sentencing framework for reckless or dangerous driving set out in Wu Zhi Yong v PP 2022 4 SLR 587 should be applied","Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for forgery for the purpose of cheating set out in Lim Ek Kian v PP 2003 SGHC 58 should be applied","Criminal Procedure and Sentencing – Sentencing – Principles – Whether section 458A of the Penal Code 1871 provides for mandatory caning for repeat offenders","Criminal Procedure and Sentencing – Sentencing – Date of commencement – Whether disqualification period to commence from date of release or date of conviction"],"date":"2024-09-02","court":"District Court","case-number":"District Arrest Case No 904840 of 2023 and 28 Others","title":"Public Prosecutor v Lim Choon Leong, Aaron","citation":"[2024] SGDC 219","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32058-SSP.xml","counsel":["Phoebe Tan (Attorney-General's Chambers) for the Public Prosecutor","Teo Choo Kee (CK Teo & Co.) for the Accused."],"timestamp":"2024-11-13T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Public Prosecutor v Lim Choon Leong, Aaron

Public Prosecutor v Lim Choon Leong, Aaron
[2024] SGDC 219

Case Number:District Arrest Case No 904840 of 2023 and 28 Others
Decision Date:02 September 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Phoebe Tan (Attorney-General's Chambers) for the Public Prosecutor; Teo Choo Kee (CK Teo & Co.) for the Accused.
Parties: Public Prosecutor — Lim Choon Leong, Aaron

Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for driving under disqualification set out in Fam Shey Yee v PP 2012 3 SLR 927 should be applied

Criminal Procedure and Sentencing – Sentencing – Whether sentencing framework for reckless or dangerous driving set out in Wu Zhi Yong v PP 2022 4 SLR 587 should be applied

Criminal Procedure and Sentencing – Sentencing – Whether sentencing benchmark for forgery for the purpose of cheating set out in Lim Ek Kian v PP 2003 SGHC 58 should be applied

Criminal Procedure and Sentencing – Sentencing – Principles – Whether section 458A of the Penal Code 1871 provides for mandatory caning for repeat offenders

Criminal Procedure and Sentencing – Sentencing – Date of commencement – Whether disqualification period to commence from date of release or date of conviction

2 September 2024

District Judge Shen Wanqin:

1       Mr Lim Choon Leong, Aaron (“Mr Lim”) is a serial offender who committed a spate of traffic, drug, and property-related offences shortly after he was released on a conditional remission order on 28 June 2022. Even though he was fined or incarcerated for similar offences in 2002, 2006, 2012, 2013, 2016, 2018 and 2022, he has not reformed. Instead, he returned to his life of crime within two weeks of his release and made a foray into the realm of controlled drugs, which indicates a clear escalation in his criminality. From July 2022 to March 2023, he went on an offending spree, and stopped only when he was arrested and remanded by the Police. His scant regard for the law is appalling. General and specific deterrence are clearly the dominant sentencing considerations in this case.

2       Having carefully considered circumstances of this case, the relevant precedents, and the legal issues, I sentenced Mr Lim as follows:

S/N

Charge/ Date

Offence

Prosecution’s Position

Defence’s Position

Sentence

1.

DAC-903093-2024

 

10.07.22

Driving under disqualification (“ DQ ”)

s 43(4)(a) punishable under (“p/u”) s 67A(1) of the Road Traffic Act 1961 (“RTA”)

& s 50T(1)(a) of the of the Prisons Act 1933 (“PA”)

8-11 weeks & 36 months’ DQ from date of conviction

Enhanced sentence of 14 days

8 weeks (consecutive) & 24 months’ DQ from date of conviction

Enhanced sentence of 10 days

8 weeks & 30 months’ DQ from date of release

2.

DAC-903094-2024

10.07.22

Driving without insurance

s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 (“MVA”) p/u s 3(2) read with (“r/w”)

s 3(3) of the MVA & s 50T(1)(a) of the PA

2-4 weeks & 36 months’ DQ from date of conviction

Enhanced sentence of 10 days

1 week & 24 months’ DQ

Enhanced sentence of 10 days

2 weeks & 24 months’ DQ from date of conviction

3.

DAC-903095-2024

10.07.22

Careless driving

s 65(1)(a) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) of the PA

4-8 weeks (consecutive) & 36 months’ DQ from date of release

Enhanced sentence of 12 days

1-2 weeks (consecutive) & 24 months’ DQ

Enhanced sentence of 10 days

5 weeks & 30 months’ DQ from date of release

4.

DAC-913460-2023

31.08.22

Drug consumption

s 8(b)(ii) p/u s 33A(3A) of the Misuse of Drugs Act 1973 (“MDA”) & s 50T(1)(a) of the PA

1 year (consecutive)

Enhanced sentence of 59 days

1 year (consecutive)

Enhanced sentence of 40 days

1 year 2 months (consecutive)

Enhanced sentence of 118 days

5.

DAC-903099-2024

09.09.22

Driving under DQ

s 43(4)(a) p/u s 67A(1) of the RTA & s 50T(1)(a) of the PA

10-14 weeks (consecutive) & 48-60 months’ DQ from date of conviction

Enhanced sentence of 20 days

10 weeks & 30 months’ DQ from date of conviction

Enhanced sentence of 10 days

10 weeks (consecutive) & 36 months’ DQ from date of release

Enhanced sentence of 59 days

6.

DAC-903101-2024

09.09.22

Inconsiderate driving

s 65(1)(b) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) of the PA

6-10 weeks & 48-60 months’ DQ from date of release

Enhanced sentence of 18 days

2 weeks & 30 months’ DQ

Enhanced sentence of 10 days

5 weeks & 30 months’ DQ from date of release

7.

DAC-903103-2024

09.09.22

Failing to render assistance

s 84(7) p/u s 131(2)(b) of the RTA, & s 50T(1)(a) of the PA

4 weeks & 24 months’ DQ from date of conviction

Enhanced sentence of 15 days

1 week & 12 months’ DQ

Enhanced sentence of 10 days

5 weeks & 24 months’ DQ from date of release

8.

DAC-903104-2024

09.09.22

Giving false information

s 182 of the Penal Code 1871 (“PC”) and s 50T(1)(a) of the PA

2-3 weeks

Enhanced sentence of 12 days

2 weeks

Enhanced sentence of 10 days

2 weeks

9.

DAC-905094-2024

10.11.22

Forgery

s 468 of the PC and s 50T(1)(a) of the PA

5-6 months (consecutive)

Enhanced sentence of 70 days

4 months (consecutive)

Enhanced sentence of 60 days

6 months (consecutive)

Enhanced sentence of 53 days

10.

MAC-901358-2023

28.02.23

Criminal trespass

s 447 of the PC

3-4 weeks

3 weeks

3 weeks

11.

MAC-907422-2023

07.03.23

Criminal trespass

s 447 of the PC

6 weeks (consecutive)

6 weeks (consecutive)

6 weeks

12.

DAC-904840-2023

28.03.23

Housebreaking

s 451 PC r/w s 458A of the PC

16 months & 3 strokes of the cane (consecutive)

13-14 months (consecutive)

16 months (consecutive)

Total Sentence

1 years, 21-22 months, 20-28 weeks & 48-60 months’ DQ from date of release.

Enhanced sentence of 230 days

1 year, 17-18 months, 15-16 weeks & 30 months’ DQ from date of release.

Enhanced sentence of 170 days

1 year, 24 months, 10 weeks & 36 months’ DQ from date of release.

Enhanced sentence of 230 days



Background

3       On 30 March 2022, Mr Lim was convicted of 11 traffic, property and hurt-related offences. He was sentenced to an aggregate imprisonment term of two years, fined S$2,500, and disqualified from driving for a total period of 12 months. On 28 June 2022, he was released on a conditional remission order. He knew that pursuant to the order, he must not commit or be convicted of any offence, or else he might be given an enhanced sentence in addition to any punishment given for any offence committed whilst under a remission order.

4       From 10 July 2022 to 28 March 2023, Mr Lim committed 29 traffic, drug and property-related offences. The offences committed are set out below in chronological order.

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Issue 1: Whether the proposed individual sentences were appropriate in the circumstances and in keeping with the precedents

5       This section sets out the issues relating to each proceeded offence and the reasons for imprisonment terms imposed. The issues relating to the disqualification orders and the enhanced sentences imposed under s 50T(1)(a) of the PA will be discussed separately below.

Driving under disqualification

6       Mr Lim drove on 10 July 2022 and 9 September 2022 whilst under a disqualification order, thereby committing two offences under s 43(4)(a) of the RTA (DAC-903093-2024 and DAC 903099-2024) (hereinafter referred to as the “First DQ Offence” and “Second DQ Offence” respectively).

7       The Prosecution sought an imprisonment term of eight to 11 weeks, and 10 to 14 weeks, in respect of the First DQ Offence and the Second DQ Offence respectively. The Defence sought an imprisonment term of eight- and 10- weeks’ imprisonment for the First DQ Offence and Second DQ Offence respectively, which was in line with the Prosecution’s submission. However, both parties confirmed during the hearing that they did not wish to refer the court to any sentencing frameworks or precedents. While sentencing is an art and not a science, sentences must be arrived at after a careful consideration of not only the facts, but also the applicable sentencing frameworks and precedents. Sentencing is meaningful only if it takes place within the confines of the sentencing infrastructure established by the sentencing jurisprudence, sentencing limits and precedents. Hence, I considered the following issues when determining the sentences for the present offences:

(a)     whether the court should rely on any sentencing framework when determining the appropriate sentences for offences of driving under disqualification under s 43(4)(a) of the RTA; and

(b)     whether the parties’ proposed sentences were in line with the sentencing precedents.

Sentencing framework for offence of driving under disqualification

8       The offence under s 43(4)(a) of the RTA is a strict liability offence that is concerned with the public’s protection and safety. It prohibits persons without valid or subsisting licences from endangering human lives by driving on public roads and highways (Chng Wei Meng v PP [2002] 2 SLR(R) 566 (“Chng Wei Meng”) at [18] and [43]). It is “about as serious an offence as a motorist can commit” (Chng Wei Meng at [43]) and invariably manifests in the following way: (a) an offender committed one or more road traffic-related offences which caused him to be disqualified from driving; (b) the offender drove a vehicle whilst under a disqualification order; and (c) this was done in deliberate disregard of the disqualification order (Chng Wei Meng at [44] and Seah Ming Yang Daryle v PP [2024] 4 SLR 1561 (“Daryle Seah”) at [57])). As offences under s 43(4) of the RTA often presented in a particular way with a limited range of sentencing considerations, the benchmark approach and the single starting point approach can be applied to such offences (Ng Kean Meng Terence v PP [2017] 2 SLR 449 (“Terence Ng”) at [28] and [32]).

9       Between the benchmark approach and the single starting point approach, the benchmark approach was preferred for two reasons. First, it allowed for the identification of an archetypal case and a sentencing norm (Terence Ng at [31]). This was especially useful since the bulk of the s 43(4)(a) RTA cases would likely involve the archetypal case. Second, the adoption of the benchmark approach would bring the sentencing approach for s 43(4)(a) RTA offences in line with the benchmark approach endorsed by the High Court for s 35(1) RTA offences (Daryle Seah at [37]). This would in turn ensure consistency in the sentencing approaches adopted for similar types of RTA offences, i.e., ss 35(1) and 43(4) RTA offences (see Daryle Seah at [75]).

10     Having established that the benchmark approach was a suitable approach for assessing the appropriate sentence for an offence of driving whilst under disqualification, I then turned to case law and the facts to determine an appropriate sentence for the offences. A review of the cases showed that the courts had consistently taken a serious view of offences under s 43(4) of the RTA and emphasised that offenders who drove whilst under disqualification would be punished strictly (PP v Lee Cheow Loong Charles [2008] 4 SLR(R) 961 at [31] and Daryle Seah at [58]). This was because such offenders, being recalcitrant offenders who would have inevitably driven without insurance, put victims at risk of receiving inadequate compensation and endangered the public (Daryle Seah at [58] and Chng Wei Meng at [43]). Such offences were also difficult to detect.

11     Before 1 November 2019, the prescribed punishment for the offence of driving under disqualification under s 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“pre-2019 RTA”) was a fine not exceeding S$10,000, or imprisonment not exceeding 3 years, or both (see the left column in the table below). Following the passing of the Road Traffic (Amendment) Act 2019 (Act 19 of 2019) (“2019 RTA amendments”), the prescribed punishment for a first offence under s 43(4)(a) of the RTA is a fine not exceeding S$10,000, or imprisonment for a term not exceeding 3 years, or both. However, the prescribed punishment for a repeat offender was doubled (see the right column in the table below).

Section 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed)

(Pre- 2019 RTA amendments)

Section 43(4) of the Road Traffic Act 1961

(Post- 2019 RTA amendments)

Provisions as to disqualifications and suspensions

43.– […]

(4) If any person who is disqualified as mentioned in subsection (3) drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class or description, a motor vehicle of that class or description, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.

Provisions as to disqualifications and suspensions

43. – […]

(4) If any person who is disqualified as mentioned in subsection (3) drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class or description, the person drives on a road a motor vehicle of that class or description, the person shall be guilty of an offence and shall be liable on conviction as follows:

(a) to a fine not exceeding S$10,000 or to imprisonment for a term not exceeding 3 years or to both;

(b) where the person is a repeat offender, to a fine not exceeding S$20,000 or to imprisonment for a term not exceeding 6 years or to both.



12     Before the 2019 RTA amendments, the High Court in Fam Shey Yee v PP [2012] 3 SLR 927 (“Fam Shey Yee”) at [12] observed that the usual tariff for an offence of driving whilst under disqualification was between four to eight weeks’ imprisonment if the offender pleaded guilty to a first offence under s 43(4) of the RTA. Following the 2019 RTA amendments, the High Court did not pronounce any benchmark sentence for an offence of driving whilst under disqualification. However, the District Court in PP v Peng Jianwen [2021] SGDC 93 (“Peng Jianwen”) observed at [47] that the “starting point sentence” for such offences is eight weeks’ imprisonment.

13     To arrive at an appropriate sentence for the First DQ Offence and the Second DQ Offence, it was necessary for me to consider the issue as to whether the sentencing tariff pronounced in Fam Shey Yee would still be applicable after the 2019 RTA amendments. Having considered the context in which Fam Shey Yee was decided, the legislative developments thereafter and the relevant cases, I concluded that the tariff set out in Fam Shey Yee, while relevant, should be applied with caution, as the prevailing sentencing practice supports a benchmark sentence of eight weeks’ imprisonment for an offence of driving whilst under disqualification. This benchmark sentence also comports with parliamentary intent.

14     First, the benchmark sentence of eight weeks’ imprisonment is consistent with the prevailing sentencing practice. According to the Sentencing Information and Research Repository, the median sentence for an offence under s 43(4)(a) RTA is eight weeks’ imprisonment (see the table below), based on a sample size of 109 cases. The graph below also shows that the sentences imposed are clustered around eight weeks’ imprisonment. AS for the remaining cases, the sentences mostly exceeded eight weeks’ imprisonment, and only a minority of the offenders received sentences in the range of two to six weeks’ imprisonment. Hence, based on the prevailing sentencing trends, the sentencing tariff of four to eight weeks’ imprisonment established in Fam Shey Yee should be applied with caution.

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15     Second, the benchmark sentence of eight weeks’ imprisonment comports with Parliament’s intent to punish irresponsible drivers more severely after the 2019 RTA amendments. This intent could be gleaned from the parliamentary debates and the legislative amendments.

16     During the Second Reading of the Road Traffic (Amendment) Bill (Bill No. 13/2019) on 8 July 2019, Second Minister for Home Affairs, Mrs Josephine Teo, explained that the impetus behind the comprehensive review of the RTA, and the consequent amendments to it, was the need for stronger deterrence and an “enhanced approach” against irresponsible driving offences. Specifically, the purpose of adopting an “enhanced approach” was to “raise sentencing norms for egregious irresponsible driving offences” (Singapore Parliamentary Debates, Official Report (8 July 2019, vol 94). As all instances of a disqualified driver driving under a disqualification order fall squarely within the definition of irresponsible driving, an offence of driving under disqualification should generally attract a stiffer punishment after the 2019 RTA amendments.

17     Further, the Parliament, in amending s 43(4) of the pre-2019 RTA to the current version in s 43(4) of the RTA, intended to confer a wider discretion on the courts to mete out higher sentences in appropriate cases. Before the 2019 RTA amendments, the offence of driving whilst under disqualification under s 43(4) of the pre-2019 RTA attracted a single punishment range for both first-time and repeat offenders, presumably with the sentences for first-time offenders being clustered at the lower end of the range (i.e., four to eight weeks’ imprisonment established in Fam Shey Yee), and the sentences for identically situated repeat offenders falling at the upper end of the range.

18     After the 2019 RTA amendments, the punishment range under s 43(4) of the pre-2019 RTA is now reserved for first-time offenders, and the maximum prescribed punishment for repeat offenders is double that of the maximum prescribed penalty for first-time offenders. This means that the sentences for first-time offenders need not be clustered at the lower end of the range – the courts can consider the full range of penalties prescribed in determining the appropriate sentence in each case, and impose higher sentences when the facts justify them (Ong Chee Eng v PP [2012] 3 SLR 776 (“Ong Chee Eng”) at [24] and Suventher Shanmugam v PP [2017] 2 SLR 115 at [26]).

19     The starting benchmark sentence of eight weeks’ imprisonment comports with the parliamentary intent to punish irresponsible drivers more severely, as this starting sentence was calibrated upwards from the starting tariff established in Fam Shey Yee before the 2019 RTA amendments. As the maximum prescribed penalty for a repeat offender was doubled after the 2019 RTA amendments, a proportionate increase of the starting sentence of four weeks’ imprisonment for a first offender, established in Fam Shey Yee, was appropriate, especially given the need to utilise the full spectrum of sentences prescribed. On the other hand, a strict and unthinking application of the pre-2019 RTA sentencing tariff of four to eight weeks’ imprisonment not only defeats the parliamentary intent, but also has the undesirable effect of causing the sentences to be arbitrarily clustered in a particular segment of the full range (Ong Chee Eng at [24] and Huang Ying-Chun v PP [2019] 3 SLR 606 at [79]). This is antithetical to the duty of the court to ensure that the full spectrum is carefully explored in determining the appropriate sentence in each case (Ong Chee Eng at [24]).

Appropriate sentence for offence of driving under disqualification

20     In arriving at the sentences imposed, I also considered the following offence-specific and offender-specific factors which applied to both offences unless otherwise stated:

Offence-specific factors:

(a)      Premeditation and planning: Mr Lim took steps to rent a car in advance, knowing that he had been disqualified from driving. On the facts, there was no reason for him to rent a car other than for the purpose of driving it. His offences were therefore premeditated and planned. His culpability was higher than that of an offender who drove spontaneously whilst under disqualification.

Offender-specific factors:

(b)      Antecedents: Mr Lim was convicted of the related offences of taking a motor vehicle without consent and driving without licence in 2002 and 2006, and an offence of driving without licence in 2022. While the earlier offences are dated, the present offences were committed relatively close in time to his prior conviction for driving without a licence in 2022. Specific deterrence was therefore necessary.

(c)      TIC charge (Second DQ Offence only): Mr Lim committed a separate offence of driving whilst under disqualification on 29 August 2022, which was the subject of a charge DAC-916128-2024 that was taken into consideration in sentencing (“TIC’). The effect of the TIC charge was to enhance the sentence for the Second DQ Offence, which was of the same nature, and was committed a mere 11 days after the TIC offence (PP v UI [2008] 4 SLR(R) 500 (“UI”) at [38]).

(d)      Re-offending whilst under investigation: The First DQ Offence and the Second DQ Offence were committed on 10 July 2022 and 9 September 2022 respectively, shortly after the prior disqualification order was imposed on 30 March 2022. Mr Lim committed the Second DQ Offence, despite being aware that he was investigated for the earlier traffic and drug offences. His conduct was analogous to one who had reoffended while on bail, and also revealed his lack of remorse and his blatant disregard for the law, which in turn called for a stiffer sentence (Tan Gek Young v PP and another appeal [2017] 5 SLR 820 (“Tan Gek Young”) at [73(c)]).

21     Based on the analysis above, the Second DQ Offence was more egregious than the First DQ Offence due to the factors set out at [20(c)] and [20(d)]. There were no compelling mitigating factors which I could count in Mr Lim’s favour. That said, I applied the full sentencing discount attributable to his early indication of plea (Stage 1) to the sentence he would have received if he was convicted after trial. Bearing in mind the benchmark sentence of eight weeks’ imprisonment, I sentenced him to eight- and 10- weeks’ imprisonment for the First DQ Offence and Second DQ Offence respectively. The precedents below showed that the sentences were amply justified.

Case / Date of Decision

Aggravating Factors / Material Facts

Mitigating Factors

Sentence Imposed

PP v Lee Seck Lian [2024] SGDC 33 (“Lee Seck Lian”)

19 February 2024

Magistrate’s Appeals No. 9016 of 2024

· Two TIC charges for traffic offences.

· The offender was traced for an offence of drink driving, for which she was fined S$6,500 and given a 36-month DQ order.

· The offender was “not meaningfully cognisant” of the DQ order.

· She pleaded guilty and fully compensated for the property damage caused.

· She met with an accident that was caused by a cockroach on her thigh.

On appeal, the High Court set aside the fine of S$10,000 and substituted it with six weeks’ imprisonment.

The DQ order of four years was not disturbed.

PP v Abdul Fathani Bin Khairuddin [2021] SGDC 143 (“Abdul Fathani”)

29 July 2021

Magistrate’s Appeals No. 9133 of 2021

· The offender was late for work. He drove the car to collect folic acid, to pass it to his wife. He re-offended six months after the original DQ order was imposed.

· One TIC charge for failing to deliver his driving licence to the Traffic Police within seven days of the original DQ order.

· He was traced for drink driving and inconsiderate driving, for which he was fined S$2,500 and $500 respectively and given DQ orders of 23 months and 3 months.

· The offence did not cause any accident or harm.

Eight weeks’ imprisonment and 42 months’ DQ from the date of release from Prisons. The sentence was affirmed on appeal.

PP v Peng Jianwen [2021] SGDC 93 (i.e., Peng Jianwen)

24 May 2021

Magistrate’s Appeals No. 9895 of 2020

· The offender committed the offence about two months after the original DQ order was imposed. He took over the car from his wife because she complained of dizziness.

· Two TIC charges for driving without insurance and failing to wear a seat belt.

· He was traced for an offence of dangerous driving for which he was sentenced to a fine of S$3,750 and a 12-month DQ order.

· The offender pleaded guilty and fully cooperated with the Police.

· No evidence of accident or harm caused.

Eight weeks’ imprisonment and 36 months’ DQ from date of release. The sentence was affirmed on appeal.



22     In respect of the First DQ Offence, the culpabilities of Mr Lim and Mr Abdul Fathani were similar, as their offences of driving whilst under disqualification were premeditated and planned. While Mr Lim’s record of traffic violations was more extensive, the crux of the matter was that both offenders, being traced for similar antecedents, needed to be specifically deterred. I therefore accepted that the sentence of eight weeks’ imprisonment in Abdul Fathani could apply to Mr Lim.

23     However, Mr Lim, in committing the Second DQ Offence, bore a higher culpability as compared to the offenders in all three cases. This was because he committed the Second DQ Offence while being investigated for other offences of the same nature. He also committed the Second DQ Offence shortly after committing other traffic and drug offences. His conduct revealed his lack of remorse and a deep-seated disrespect for law and authority, which were significant distinguishing factors. Hence, based on a comparison of the facts, there was sufficient justification for calibrating the sentence for the Second DQ Offence upwards to 10 weeks’ imprisonment.

Driving without insurance

24     As for the contravention of s 3(1) of the MVA, which amounted to an offence punishable under s 3(2) read with s 3(3) of the MVA (DAC-903094-2024), the usual sentence, even where the offender claimed trial, is a fine and disqualification from driving all classes of vehicles for 12 months (see, for example, Sulaiman bin Mohd Hassan v PP [2021] 5 SLR 763 and Prathib s/o M Balan v PP [2018] 3 SLR 1066). The Prosecution submitted for an imprisonment term of two to four weeks, while the Defence submitted for an imprisonment term of one week.

25     I agreed with both parties that the usual fine could not be applied to a recalcitrant offender like Mr Lim. He committed offence of driving without insurance, even though he was already fined for the offence of driving without insurance in 2002 and 2006, and consented to have the charge for an offence of the same nature taken into consideration in 2022. Further, two TIC charges DAC-903100-2024 and DAC-916129-2024 for driving without insurance were taken into consideration in sentencing, and the effect of such charges was to enhance the sentence for the proceeded offence (UI at [38]). After factoring in the aforesaid circumstances and applying the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1), I imposed a short custodial term of two weeks’ imprisonment for the offence.

Careless driving and inconsiderate driving

26     Mr Lim was convicted of an offence under s 65(1)(a) of the RTA, for driving a motor vehicle on a road on 10 July 2022 without due care and attention (DAC-903095-2024) (the “Careless Driving Offence”), and another offence under s 65(1)(b) of the RTA, for driving a motor vehicle on a road on 9 September 2022, without reasonable consideration for other persons using the road (DAC-903101-2024) (the “Inconsiderate Driving Offence”). Prior to the said offences, Mr Lim was convicted on 30 March 2022 of an offence of careless driving under s 65(1)(a) of the RTA, and was also convicted on 30 November 2006 of an offence of reckless or dangerous driving under s 64(1) of the pre-2019 RTA. He therefore qualified as a repeat offender, defined in s 65(8) of the RTA. Accordingly, the Careless Driving Offence and the Inconsiderate Driving Offence were punishable under s 65(5)(b) read with s 67A(1) of the RTA. The court was also empowered to make a disqualification order under s 42(1) of the RTA.

Sentencing framework for careless driving and inconsiderate driving offences

27     Section 65(5)(b) of the RTA provides that a repeat offender shall on conviction of an offence under s 65(1) of the RTA be liable to a fine not exceeding S$3,000 or to imprisonment for a term not exceeding 12 months or to both. In determining the sentences for the Careless Driving Offence and the Inconsiderate Driving Offence, I was required to confront the novel issue as to whether the sentencing framework in Wu Zhi Yong v PP [2022] 4 SLR 587 (“Wu Zhi Yong”) should be applied.

28     In Wu Zhi Yong, Chief Justice Sundaresh Menon (“Menon CJ”) reviewed the sentencing considerations and precedents for reckless driving offences involving serious offenders, punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA. Following the review, Menon CJ found it appropriate to apply a modified “sentencing bands” approach to reckless driving offences, because (a) there were no typical set of facts that would characterise a reckless driving offence; and (b) there was no identifiable key determinant of a starting point sentence, as Parliament already identified one principal element – that of harm – and delineated the range of sentences applicable in relation to each type of harm (Wu Zhi Yong at [24]–[30]). The modified “sentencing bands” approach was summarised as follows (Wu Zhi Yong at [30] and [49]):

(a)     As a first step, the court should identify the band applicable to the offence and the indicative starting point with reference to that band, having regard to the offence-specific factors present. These encompass factors relating to the manner and mode by which the offence was committed, as well as the harm caused by the offender.

(b)     At the second step, the court calibrates the sentence from the starting point by having regard to the offender-specific factors, being the aggravating and mitigating factors that are personal to the offender.

29     In PP v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng Chang Tong”) at [32], [35] and [38]–[39], the High Court held that the sentencing framework for reckless driving offences involving serious offenders punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA, laid down in Wu Zhi Yong, applied equally to the offence of careless driving by a repeat and serious offender punishable under s 65(5)(b) read with s 65(5)(c) of the RTA. This was because both types of offences were similar in seriousness in terms of the prescribed sentencing range. The maximum sentence for a careless driving offence punishable under s 65(5)(b) and 65(5)(c) of the RTA is a fine of S$13,000 and an imprisonment term of 24 months. The maximum sentence for a reckless driving offence under punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA is a fine of S$15,000, and/or imprisonment term of 24 months.

30     In this case, both parties submitted that the framework in Wu Zhi Yong did not apply as the reckless driving offence dealt with in Wu Zhi Yong was different from the nature of the present offences. The Prosecution sought an imprisonment term of four to eight weeks for the Careless Driving Offence, and an imprisonment term between six to ten weeks for the Inconsiderate Driving Offence, without invoking any sentencing framework or precedents. The Defence sought a sentence of one to two weeks’ imprisonment for each offence based on the case PP v Anson Tan Chin Siang [2023] SGDC 298 (“Anson Tan”). I was not convinced that the distinct nature of the offences involved was dispositive of the issue. In any event, the reckless driving, careless driving and inconsiderate driving offences were all traffic offences that targeted an offender’s unsatisfactory manner of driving. In my assessment, the sentencing approach in Wu Zhi Yong could be extrapolated and applied to careless and inconsiderate driving offences involving repeat offenders punishable under s 65(5)(b) of the RTA for the reasons below.

31     First, even though Wu Zhi Yong framework was promulgated for the offence of reckless driving punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA, offences under s 64(2C) and s 65(1) of the RTA are both subject to the same tiered punishment framework whereby the punishment is calibrated according to the degree of hurt caused, and specific ranges of punishments are prescribed for each category of harm (Wu Zhi Yong at [15]). In respect of both types of offences, the factor of harm is not a significant element in sentencing, as it is largely already reflected in the different punishment provisions and in the choice between the different provisions (Wu Zhi Yong at [28]). Given these broad similarities, the “sentencing bands” approach and the sentencing considerations espoused in Wu Zhi Yong can provide useful guidance in sentencing an offender for an offence under s 65(1) of the RTA. In Cheng Chang Tong at [39], the High Court similarly opined that the assessment of the relevant sentencing factors should be similar for both dangerous driving and careless driving offences, as both careless driving and dangerous driving cases had been cited in Wu Zhi Yong to illustrate the different levels of seriousness of offending (Cheng Chang Tong at [39]).

32     Second, in Wu Zhi Yong at [47], Menon CJ envisaged that adjustments to the sentencing approach laid down in that case could be made in a suitable case, in view of the different punishments prescribed for a “repeat offender” or “serious repeat offender”. Hence, Menon CJ observed that “the formulation of these sentencing ranges [would] need to be done by the court in suitable cases”. In formulating the sentencing ranges to cater to a repeat offender who committed offences under s 65(1) of the RTA, the court would merely be extrapolating from the Wu Zhi Yong framework, and would not be devising any new frameworks – a task best left to the appellate court (PP v Sindok Trading Pte Ltd (now known as BSS Global Pte Ltd) and other appeals [2022] 5 SLR 336 at [29]).

33     More significantly, this was not the first case in which the courts had extrapolated from and applied the Wu Zhi Yong framework to suitable cases. For example, in Cheng Chang Tong, the High Court, in applying the Wu Zhi Yong framework to a “serious offender” and “repeat offender” who committed an offence of careless driving under s 65(1)(a) and punishable under s 65(5)(b) read with s 65(5)(c), s 65(6)(i) and 67A(1)(a) of the RTA, implicitly recognised the usefulness of the sentencing bands approach in deriving the sentences for careless driving offences. Similarly, in PP v Kenneth Tham Wei Cheow [2023] SGDC 190 at [30]–[35], the District Court adapted the Wu Zhi Yong framework and applied it to an offence of careless driving committed by a “serious repeat offender” under s 65(1)(a) and punishable under s 65(5)(d) read with s 65(5)(a) and 65(7)(d) of the RTA.

34     Hence, adapting Wu Zhi Yong framework to determine the appropriate sentence for a “repeat offender” who engaged in careless or inconsiderate driving, and bearing in mind the need to utilise the full spectrum of possible sentences whilst leaving room for the sentencing judge to calibrate the sentences upwards or downwards in view of other sentencing factors (Vasentha d/o Joseph v PP [2015] 5 SLR 122 (“Vasentha”) at [46]), the adjusted sentencing bands for the Careless Driving Offence and the Inconsiderate Driving Offence (collectively, “the Adapted Framework”) were as follows:

Band

Features

Reckless Driving – Wu Zhi Yong framework (discounting DQ)

Careless/Inconsiderate Driving involving Repeat Offenders

1

No offence-specific aggravating factors present / present to a limited extent

A fine between S$2,000 and S$15,000 and/or one month’s imprisonment

A fine of up to S$3,000 and/or two weeks’ imprisonment

2

Two or more offence-specific aggravating factors

Between one month’s and one year’s imprisonment

Between two weeks’ and six months’ imprisonment

3

Multiple offence-specific aggravating factors

Between one year’s and two years’ imprisonment

Between six months’ and one year’s imprisonment



35     The Adapted Framework was derived in the following manner:

(a)      Band 1: In Wu Zhi Yong, the High Court set the lower limit at S$2,000 because the offence of reckless driving is punishable under s 64(2C)(c) with a minimum fine of not less than S$2,000. The High Court also set the upper limit at one month’s imprisonment, which was 1/24 of the sentencing range of two years for the reckless driving offence. As the Careless Driving Offence and the Inconsiderate Driving Offence did not attract a minimum fine, it was not necessary to stipulate a minimum quantum for the fine. The upper limit of two weeks’ imprisonment was derived by applying a 1/24 ratio to the prescribed sentencing range of 12 months for the Careless Driving Offence and Inconsiderate Driving Offence.

(b)      Band 2: The High Court in Wu Zhi Yong set the lower limit at one month’s imprisonment, and the upper limit at one year’s imprisonment, which were pegged at 1/24 and 1/2 of the prescribed sentencing range of two years for the reckless driving offence. The sentencing range stipulated in Band 2 of the Adapted Framework – between two weeks’ imprisonment (1/24 x 12 months) and six months’ imprisonment (1/2 x 12 months) – was derived by applying the same 1/24 and 1/2 ratio to the prescribed sentencing range of 12 months for Careless Driving Offence and the Inconsiderate Driving Offence.

(c)      Band 3: In Wu Zhi Yong, the High Court set the lower limit and upper limit as one year’s imprisonment and two years’ imprisonment respectively, which were pegged at 1/2 and 100% of the sentencing range prescribed for the reckless driving offence. Applying the same ratio, the sentencing range for Band 3 of the Adapted Framework was between six months’ (1/2 x 12 months) and one year’s imprisonment (i.e. the maximum prescribed sentence).

Application of the Adapted Framework

36     Applying the Adapted Framework, I arrived at a sentence of five weeks’ imprisonment for each offence. My analysis was as follows:

37      Step 1. I found that the Careless Driving Offence and the Inconsiderate Driving Offence fell within Band 2, and that the custodial threshold was crossed, given the following offence-specific aggravating factors which were applicable to both offences:

(a)      Serious potential harm: In respect of the Careless Driving Offence, Mr Lim fell asleep at the wheel and failed to exercise proper control of the car. As Mr Lim was not conscious at the time of the offence and could not exercise proper judgment and control of the vehicle, he could have caused serious harm to the persons and properties around him. Similarly, in respect of the Inconsiderate Driving Offence, Mr Lim collided into a lorry – a heavy vehicle, along a narrow road at Lorong 8 Geylang, where the buildings and cars on the road would have been in close proximity. This, coupled with his manner of driving, could have caused significant harm to other persons and properties in his vicinity.

(b)      Significant property damage: The Careless Driving Offence and the Inconsiderate Driving Offence resulted in actual property damage. Following the Careless Driving Offence, the front of Mr Lim’s rented car was ripped off and the rear was cracked. The sides of the car were scratched and crumpled, and the front tyres were punctured. The car’s windscreen was cracked, and the left side mirror was damaged. The repair costs amounted to S$14,200, which was also indicative of the extensive and serious damage caused. Apart from the damage to the rented car, Mr Lim also collided into the wall near Lamp Post 42, thereby scratching the wall, which is the Government’s property. Following the Inconsiderate Driving Offence, another rented car driven by Mr Lim was scratched and cracked at the front, and its front portion was ripped off, while the right side of the victim’s lorry was scratched and dented. Even though the loss to the victim was not quantified, the victim was put to expense in repairing the lorry. Mr Lim did not compensate for any of the damage caused and costs incurred.

38      Step 2. I then considered the following offender-specific factors which were relevant to both the Careless Driving Offence and the Inconsiderate Driving Offence, in calibrating the sentence upwards from the starting point of two weeks’ imprisonment for Band 2 cases:

(a)      Antecedents: Apart from the antecedents for careless driving under s 65(1)(a) of the RTA (convicted on 30 March 2022) and for reckless or dangerous driving under s 64(1) of the pre-2019 RTA (convicted on 30 November 2006), which were considered under the “repeat offender” provision, Mr Lim had an extensive record of relevant antecedents. He was convicted of an offence of careless riding or driving in 2002. Another offence of careless driving was taken into consideration in sentencing in 2022. He was also traced with several compounded offences for failing to give driver’s particulars (in 2013), inconsiderate driving (in 2017), careless driving (on two occasions in 2018 and in 2020), failing to stop after an accident (in 2018) and speeding (in 2019). While several of the antecedents were dated, these antecedents, when viewed holistically, showed Mr Lim to be a recalcitrant offender who had a propensity to flout traffic rules.

(b)      TIC charge (Inconsiderate Driving Offence only): Mr Lim committed another offence of careless driving on 29 August 2022, which was the subject of a TIC charge DAC-916130-2024. The effect of the TIC charge was to enhance the sentence for the Inconsiderate Driving Offence, which was not only similar in nature but also committed shortly after the careless driving offence (UI [2008] 4 SLR(R) 500 at [38]).

(c)      Re-offending whilst under investigation and shortly after release on remission order: The Careless Driving Offence and Inconsiderate Driving Offence were committed shortly after Mr Lim was released on a remission order on 28 June 2022 and whilst he was being investigated for his earlier traffic and drug offences. His conduct showed his impenitence and blatant disregard for the law, which in turn called for a stiffer sentence (Tan Gek Young at [73(c)]).

39     On a holistic assessment, the gravity of the Careless Driving Offence and Inconsiderate Driving Offence was similar. While Mr Lim fell asleep at the time of the Careless Driving Offence and caused more extensive property damage, he committed the Inconsiderate Driving Offence while under investigation and the TIC charge also enhanced the sentence for the Inconsiderate Driving Offence. The Defence did not attempt to rely on any mitigating facts as there was none. However, because of Mr Lim’s early indication of plea (Stage 1), I applied the full sentencing discount to the sentence he would have received if he was convicted after trial and sentenced him to five weeks’ imprisonment for each offence.

40     The Defence relied on the case of PP v Anson Tan Chin Siang [2023] SGDC 298 (“Anson Tan”) for its sentencing position of one to two weeks’ imprisonment, but a comparison of both cases showed the sentence of five weeks’ imprisonment to be justified. In Anson Tan, the offender similarly re-offended whilst under a remission order, by committing an inconsiderate driving offence punishable under s 65(5)(b) of the pre-2019 RTA read with s 50T(1)(a) of the Prisons Act (Cap 247). He was sentenced to one week’s imprisonment for the inconsiderate driving offence.

41     While Mr Lim and Mr Tan were both heavily traced and re-offended whilst under a remission order, the Careless Driving Offence and the Inconsiderate Driving Offence were significantly more egregious than Mr Tan’s inconsiderate driving offence. Crucially, Mr Lim fell asleep at the wheel at the time of the Careless Driving Offence, and collided with a lorry on a narrow road at the time of the Inconsiderate Driving Offence. These aggravating circumstances did not feature in Mr Tan’s case. Instead, Mr Tan only caused the car to move forward out of a parking lot in a car park (Anson Tan at [8]–[9]). Unsurprisingly, Mr Lim’s offences resulted in more extensive property damage, whereas Mr Tan’s offence resulted in only minor damage to the front portion of the vehicles and pain on his girlfriend’s arm. Given these circumstances, it was only reasonable that a significant uplift be applied to the sentence imposed on Mr Tan.

42     To be clear, in arriving at the sentences imposed, I did not factor in the antecedents for careless driving under s 65(1)(a) of the RTA (convicted on 30 March 2022) and for reckless or dangerous driving under s 64(1) of the pre-2019 RTA (convicted on 30 November 2006) at any step of the sentencing framework. This was in line with the guidance given by the High Court in Wu Zhi Yong at [47] and [48] and was also sound in principle. As Parliament already prescribed enhanced penalties in s 65(5)(b) of the RTA on account of the said antecedents which rendered Mr Lim a “repeat offender”, to consider such antecedents again in sentencing would amount to double counting (Wu Zhi Yong at [47]).

43     Even though the High Court in Cheng Chang Tong at [59] appeared to have treated the “repeat offender” status as an offender-specific aggravating factor, the High Court did not consider the antecedents that triggered the “repeat offender” status under s 65(5)(b) of the RTA in sentencing the respondent. Further, the High Court’s observations were made in the context of the discussion on the seriousness of the offence (see Cheng Chang Tong at [59]–[60]) and should not be understood as endorsing a consideration of the antecedents that triggered the repeat offender status in sentencing, especially since the antecedents was already built into the legislation.

44     Finally, even though the Careless Driving Offence and the Inconsiderate Driving Offence were also punishable under s 67A(1) of the RTA, I agreed with the Prosecution that it was not necessary to invoke s 67A(1) to impose a punishment in excess of the prescribed punishment for the offences. The imposition of enhanced penalties under s 67A(1) of the RTA is a drastic measure to be deployed only in limited circumstances (Lee Shin Nan v PP [2024] 3 SLR 1730 (“Lee Shin Nan”) at [56]). In this case, the duration and frequency of re-offending was not so severe as to warrant enhanced penalties, especially since Mr Lim’s antecedent sentences did not even come close to the maximum sentences (Lee Shin Nan at [89]).

Failing to render assistance

45     Mr Lim was required, by virtue of s 84(3) of the RTA, to render any assistance that might reasonably be in his power to render, after he collided into and caused damage to the lorry along Lorong 8 Geylang on 9 September 2022. His contravention of s 84(3) amounted to an offence under s 84(7) of the RTA, which was punishable under s 131(2)(b) of the RTA (DAC-903103-2024) (“the Failing to Render Assistance Offence”). As this was Mr Lim’s second offence for failing to render assistance, the offence was punishable under s 131(2)(b) of the RTA with a fine not exceeding S$2,000 or imprisonment for a term not exceeding six months or both. He was fined S$800 and disqualified from driving for six months for his previous offence of the same nature in 2006. The Prosecutions sought an imprisonment term of four weeks. The Defence sought an imprisonment term of one week. In my view, the sentence of five weeks’ imprisonment was appropriate.

46     Hit-and-run offences, including an offence for failing to render assistance, must be severely dealt with as they constitute a reprehensible abdication of a fundamental moral obligation to render assistance to the victim of an accident (PP v Lee Meng Soon [2007] 4 SLR(R) 240 (“Lee Meng Soon”) at [34]). Such offences are wholly unacceptable as they obstruct investigations and result in wastage of public resources. For example, when the offender leaves the scene before the arrival of the Police, the Police cannot obtain contemporaneous evidence and statements, and require the use of significant Police resources to ascertain the identity of the assailant (see Haleem Bathusa bin Abdul Rahim v PP [2023] 3 SLR 1284 at [48], [49] and [51]). Hence, there is strong public interest in deterring hit-and-run offences.

47     The Failing to Render Assistance Offence was more aggravated than the archetypal case, because Mr Lim also used violence and wilfully refused to assist the victim of the accident on 9 September 2022, in a calculated attempt to escape the consequences of his crime. After the accident, the victim specifically requested to exchange particulars, but Mr Lim rebuffed the victim’s requests (TIC charge – DAC-903102-2024) and pushed him twice. Mr Lim similarly failed to stop and provide his particulars or render assistance after another accident on 10 July 2022, and instead caused his rented car to remain in a position that was likely to cause inconvenience to other road users (see TIC charges – DAC-903096-2024, DAC-903097-2024 and DAC-903098-2024). In all the afore-mentioned cases, Mr Lim callously left the scene instead of rendering the necessary assistance. The TIC charges tendered in relation to the afore-mentioned conduct had the effect of enhancing the sentence for the Failing to Render Assistance Offence.

48     Further, Mr Lim had similar antecedents. In 2006, Mr Lim was convicted of three offences of failing to stop in an accident, failing to render assistance and unauthorised removal of accident vehicle. He was sentenced to a total fine of S$2,200 which was paid in full. In 2022, Mr Lim was convicted of an offence of failing to stop the vehicle and take reasonable steps to inform the owner of the damaged vehicle. He was fined S$1,500 and disqualified from driving for 12 months. On the same occasion, two other charges for failing to give particulars or to report accident within 24 hours were taken into consideration in sentencing. Given the similar nature of the antecedents, the principle of specific deterrence was clearly engaged.

49     The Failing to Render Assistance Offence was therefore unlike the usual hit-and-run cases involving offenders who were motivated by fear, confusion and some sort of impulse to hide from the consequences of their crime (Lee Meng Soon at [39]). Mr Lim was a seasoned offender who knew full well what he was doing when he met the victim’s request for particulars with violence and chose not to render any assistance on 9 September 2022, despite having been asked specifically to cooperate. In PP v Ho Loong Chan [2018] SGDC 134, the offender pleaded guilty and was sentenced to one week’s imprisonment for an offence of failing to render assistance under s 84(7) and punishable under s 131(2)(a) of the RTA (for a first offender). As Mr Lim was a repeat offender whose offence was punishable under s 131(2)(b) of the RTA with imprisonment of up to six months, a significant uplift should be applied to the sentence for the first offender. That said, I also applied the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1) to the sentence he would have received if he claimed trial. I therefore sentenced Mr Lim to five weeks’ imprisonment for the Failing to Render Assistance Offence.

Giving false information

50     Mr Lim committed an offence under s 182 of the PC (DAC-903104-2024) by falsely telling the Police that he called to report the accident on 9 September 2022 but was told to leave the scene as the victim did not suffer any injuries. I agreed with parties that the sentence of two weeks’ imprisonment was appropriate. Mr Lim’s offence under s 182 of the PC had the potential to frustrate the progress of investigations, thwart the course of justice, and embarrass the Police. As the potential harm arising from the offence was appreciable, the starting sentence for the offence should be a custodial term (Koh Yong Chiah v PP [2017] 3 SLR 447 at [50]).

51     The offence also engendered significant harm in the form of a wastage of public investigative resources and time. Mr Lim knowingly lied to the Police and did not come clean voluntarily before his lie was found out. As a result, the Police expended time and effort to investigate the matter. While the deception was rudimentary, spontaneous, and intended to shield Mr Lim from investigation or prosecution, these factors were not mitigatory in nature, and were only relevant to the assessment on his culpability. Having applied the full sentencing discount attributable to Mr Lim’s early indication of plea (Stage 1) to the sentence he would have received if he was convicted after a trial, I sentenced Mr Lim to two weeks’ imprisonment for the offence.

Drug consumption

52     The facts of the drug consumption offence (DAC-913460-2023) were unremarkable, and this was Mr Lim’s first conviction for drug consumption. Both parties sought the mandatory minimum sentence of one year’s imprisonment. However, even considering his early indication of plea (Stage 1) for which I was prepared to apply the full sentencing discount, I did not think the mandatory minimum sentence was appropriate, as a minimum sentence would generally be meant for an offender who exhibited the least degree of culpability, i.e., who committed the crime in question in the absence of any aggravating factors (UI at [76]).

53     Mr Lim could not be said to have exhibited the least degree of culpability, nor could his crime be characterised as one committed in the absence of any aggravating factors. Besides consuming methamphetamine on or before 31 August 2024, he also committed an offence of possession of drug utensils under s 9 of the MDA on 31 August 2022, which was the subject of a TIC charge (DAC-913461-2023). After committing a spate of traffic-related and property-related offences, Mr Lim committed yet another offence of consuming methamphetamine under s 8(b)(ii) of the MDA, on or before 9 March 2023. This was the subject of another TIC charge (DAC-909517-2023).

54     The effect of the TIC charges was to enhance the sentence for the proceeded drug consumption offence. After considering the effect of the two TIC charges for the drug-related offences and applying the full sentencing discount due to Mr Lim on account of his early indication of plea to the sentence he would have received if he was convicted after trial, I sentenced Mr Lim to one year and two months’ imprisonment. This was a fair outcome, considering Mr Lim could not be placed in the same position as another putative offender who committed an archetypal offence of drug consumption without any aggravating factors.

Forgery for the purpose of cheating

55     The offence of forgery for the purpose of cheating under s 468 of the PC (DAC-905094-2024) is punishable with imprisonment for a term which may extend to 10 years and/or a fine. In respect of the forgery offence committed by Mr Lim on 10 November 2022 (“the Forgery Offence”), the sentencing position put forth by both parties was similar – the Prosecution sought a sentence of five to six months’ imprisonment, while the Defence sought a sentence of four months’ imprisonment, on the basis that Mr Lim did not profit from the offence. I sentenced Mr Lim to six months’ imprisonment.

Sentencing approach for offence of forgery for the purpose of cheating

56     In Lim Ek Kian v PP [2003] SGHC 58 (“Lim Ek Kian”) at [35], Yong Pung How CJ observed that the courts have always treated offences of forgery for the purpose of cheating seriously, and “past cases have adopted a 12 month sentence of imprisonment as a benchmark”. The main issue was whether this benchmark of 12 months should be applied to the present offence under s 468 of the PC. In my view, the benchmark should be applied with caution for the following reasons.

57     First, the benchmark in Lim Ek Kian must be viewed with circumspection, as the legislation and sentencing jurisprudence developed significantly since the decision in 2003. The maximum imprisonment term prescribed for the offence of forgery for the purpose of cheating increased from seven years to ten years since the decision. We also now know that there are different types of sentencing frameworks that cater to different types of offences, and that sentencing frameworks may not be suitable for all types of offences (see Terence Ng at [26] and [39]). Specifically, the High Court clarified that the “benchmark” approach would be suited for offences that manifested in a certain way, or where a particular form of offending was common and merited special attention (at Terence Ng at [32]). Yet, Lim Ek Kian did not precisely articulate the variant of forgery offences that was being referred to when pronouncing the benchmark sentence of 12 months in that case (PP v Vericker Michael Gunderson [2023] SLR(StC) 498 (“Vericker”) at [54]).

58     Second, as offences under s 468 of the PC present in a wide variety of ways, it could not be assumed that the Yong CJ’s observations in Lim Ek Kian regarding the 12-month benchmark was to apply across all types of forgery offences under s 468 of the PC. Lim Ek Kian itself involved a factual matrix that was entirely different from the facts of this case. In Lim Ek Kian, the offender forged signatures on a PARF/COE rebate transfer form and presented it to the Land Transport Authority (“LTA”), intending to deceive LTA into transferring one customer’s rebates to another. The offender, being a first offender, received a sentence of 12 months’ imprisonment for his offence under s 468 of the Penal Code (Cap 244), as his actions adversely affected public perception of the system of rebates transfer and of the car selling industry in general (Lim Ek Kian at [37]). As the Forgery Offence occurred in an entirely different context, the eventual sentence needed to be calibrated based on the facts. As the District Court aptly observed in Vericker, the “benchmark” is merely a starting point, not the end point. Accordingly, the benchmark in Lim Ek Kian could not be unthinkingly or strictly applied.

59     Similarly, the case of PP v Yong Wei Onn, Louis Paul [2021] SGDC 33 cited by the Defence could not be applied directly to this case, as the forgery offence in that case occurred in an entirely different context. In that case, Mr Yong forged a Notice of Assessment for Year of Assessment 2014, intending that the said document be used for the purpose of cheating Malayan Banking Berhad into approving a loan to Turntables and Solutions Pte Ltd. Two other charges under s 468 of the PC were taken into consideration in sentencing. Mr Yong, who was untraced, was sentenced to three months’ imprisonment.

60     In this case, Mr Lim benefited from the Forgery Offence whereas Mr Yong did not, as the loan was not disbursed. Notably, unlike Mr Yong, Mr Lim had a long record of property-related antecedents. Specifically, he was traced for an offence of forgery for the purpose of cheating under s 468 of the PC, for which he was convicted on 30 March 2022 and sentenced to three months’ imprisonment. The facts of his prior forgery offence were strikingly similar to that of the Forgery Offence. His prior forgery offence involved the forgery of a prescription memo which was intended for the purpose of cheating the triage staff and pharmacist at Ng Teng Fong Hospital to dispense five bottles of Procodin. However, the pharmacist discovered the forgery and did not dispense the requested bottles.

Appropriate sentence for offence of forgery for the purpose of cheating

61     In view of Mr Lim’s chequered history, the principle of escalation was engaged and an escalation in his sentences was warranted (PP v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”) at [57]–[60]). Bearing in mind the 12-month benchmark in Lim Ek Kian and the relevant factors below, and applying the full sentencing discount arising from his early indication of plea (Stage 1), I sentenced Mr Lim to six months’ imprisonment for the Forgery Offence:

Offence-specific factors:

(a)      Premeditation, planning and sophistication: Mr Lim committed the Forgery Offence with premeditation, planning and some degree of sophistication. He took a prescription memo which he previously obtained from Ng Beng Yeong Psych Medicine Clinic and made a realistic copy of it using a photocopier machine. He forged the prescription memo, handed the copy to the pharmacist, and was persistent in his deception, as he chose to further perpetuate the forgery by adding more details when the pharmacist pointed out certain missing details on the prescription. These factors were indicative of his high culpability.

(b)      Tangible Benefit: While the Defence rightly pointed out that Mr Lim did not gain any monetary profits from the Forgery Offence, the Defence overlooked the tangible benefit involved – Mr Lim successfully obtained prescription drugs without a valid prescription. While Mr Lim asserted that the prescription drugs were meant to treat his cough and Attention-Deficit Hyperactive Disorder (“ADHD”), he conceded that this was a bare assertion as he had no supporting evidence to show that he indeed suffered from cough and ADHD at the material time. As the Prosecution rightly pointed out, if Mr Lim suffered from any ailment, he ought to have consulted a doctor for it. Since he was previously convicted of a similar offence, he ought to have known that such medications could only be obtained through a doctor, and not in the way he did. I was therefore not convinced that Mr Lim obtained the drugs for the professed purpose.

(c)      High potential harm: While the Defence rightly pointed out that no actual loss was caused and no actual harm materialised, the Defence overlooked the high potential harm arising from the Forgery Offence. Unlike his prior offence of forgery whereby no medications were dispensed to him, Mr Lim obtained prescription-only medications, namely, 10 tablets of Ritalin and two bottles of Procodin syrup, without a prescription, by committing the Forgery Offence. These medications contained scheduled poisons, namely, codeine and methylphenidate, under the Poisons Act 1938, which could not be obtained without a valid prescription. If these medications fell into the wrong hands, the unregulated consumption of such medications could potentially endanger the life and safety of the consumer(s). Moreover, the Forgery Offence could have damaged the reputation of the pharmacist and the pharmacy and exposed them to the risks of investigation and prosecution.

Offender-specific factors:

(d)      Similar antecedents: Apart from his conviction for an offence under s 468 of the PC on 30 March 2022, Mr Lim gave his consent for four other forgery offences under s 468 of the PC to be taken into consideration in sentencing on that occasion. In addition, he was convicted of an offence of attempted cheating by personation in 2013 and was sentenced to four months’ imprisonment for that offence.

(e)      TIC charges: Two charges (DAC-905149-2024 and DAC-905150-2024) for forgery of two other prescription memos for the purpose of cheating were taken into consideration in sentencing. As the TIC charges also involved offences under s 468 of the PC, the effect of the TIC charges was to enhance the sentence for the Forgery Offence.

(f)      Re-offended whilst under investigation: Mr Lim committed the Forgery Offence whilst he was under investigation for other drug and traffic-related offences.

62     There were no mitigating facts that I could consider in Mr Lim’s favour. That said, I applied the full sentencing account attributable to his early indication of plea (Stage 1) to the sentence he would have received if he claimed trial, and sentenced him to six months’ imprisonment for the Forgery Offence.

Criminal trespass

63     Both parties agreed that a sentence of three- and six- weeks’ imprisonment should be imposed for the offences of criminal trespass committed on 28 February 2023 and 7 March 2023 (MAC-901358-2023 and MAC-907422-2023 respectively). Having considered the relevant factors pertaining to these offences and Mr Lim’s early indication of plea, I accepted parties’ submissions and imposed these sentences accordingly.

House-breaking

64     Mr Lim was convicted of an offence punishable under s 451 read with s 458A of the PC (DAC-904840-2023) (“the House-breaking Offence”). Under 451 of the PC, the offence of house-breaking shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to a fine. Further, pursuant to s 458A of the PC, Mr Lim “shall be liable to caning” as he was convicted of an offence under s 451 of the PC on 30 March 2022. The Prosecution, taking reference from the sentence of 11 months’ imprisonment imposed for Mr Lim’s prior housebreaking offence under s 451 of the PC (“the Prior House-breaking Offence”), submitted for a sentence of 16 months’ imprisonment and three stokes of the cane. The Defence, relying on the observations made in PP v Lim Wei Ho [2023] SGDC 152 (“Lim Wei Ho”), submitted for a sentence of 13 to 14 months’ imprisonment and objected to caning. While I agreed with the general sentencing considerations and sentencing factors identified by the learned District Judge in Lim Wei Ho, I was mindful that the sentence to be imposed would ultimately be dependent on the unique facts of each case, especially since a house-breaking offence could occur in a wide variety of ways.

Appropriate sentence for offence of house-breaking

65     Turning to the facts of this case, I arrived at the sentence of 16 months’ imprisonment for the House-breaking Offence, by applying the principle of escalation articulated in Low Ji Qing. Mr Lim was convicted of the Prior House-breaking Offence on 30 March 2022, for trespassing into a clinic at 3.36am and stealing 21 bottles of cough syrup worth S$231, without making any restitution for the loss. Yet, he re-offended on 28 March 2023 by committing the same offence. Both parties, in seeking sentences that were higher than that previously imposed in respect of the Prior House-breaking Offence, implicitly accepted that the principle of escalation was engaged.

66     I agreed with the Prosecution that a significant uplift from Mr Lim’s previous sentence of 11 months’ imprisonment was required. The previous sentence was clearly insufficient to deter him from re-offending. I also considered the following aggravating features:

Offence-specific factors:

(a)      Duration of the trespass: Mr Lim unlocked the main door, trespassed into the unit, and remained unlawfully in the unit for an extended period of over an hour. He also rummaged the items in the unit and left the unit in a state of disarray.

(b)      Timing of the offence: Mr Lim chose to trespass into the unit at 3.42am, under the cover of darkness. It could be surmised that he committed the House-breaking Offence at that time with a view to reducing the risk of detection.

(c)      Profit motive: Mr Lim stole material goods such as branded shoes and cash. The total value of the stolen goods was S$3,820. This was much higher than the value of cough syrup (S$231) stolen from the Prior House-breaking Offence. Based on the nature and value of the items stolen, I inferred that Mr Lim stole them with a profit motive.

(d)      Loss to the victim: Cash of S$250 belonging to the victim, Guan Xiaohui, was not recovered. No restitution was made.

Offender-specific factors

(e)      Antecedents: Apart from the Prior House-breaking Offence, Mr Lim had a lengthy record of property-related antecedents, including for dishonest misappropriation of property, theft, theft in dwelling and taking a motor vehicle without the owner’s consent.

(f)      Similar TIC charges: Two charges of dishonest misappropriation (MAC-907402-2023 and MAC-907403-2023), one charge of fraudulent possession (MAC-902659-2024) and one charge of theft (MAC-902660-2024) were taken into consideration in sentencing. The effect of these TIC charges was to enhance the sentence for the House-breaking Offence.

(g)      Reoffending whilst on court bail and during investigations: The House-breaking Offence was committed whilst Mr Lim was released on court bail This revealed his lack of remorse, which was an aggravating factor (Vasentha at [63]).

67     Given the escalation in criminality, a sentence higher than 11 months’ imprisonment was amply justified. Mr Lim argued for a lower sentence as he claimed the House-Breaking Offence was not pre-meditated or sophisticated, and no damage was caused. While I was prepared to accept that there was no evidence of pre-meditation, sophistication or damage, the absence of an aggravating factor did not ipso facto constitute a mitigating factor and thus could not be relied upon to gain a discount in sentencing (PP v AOM [2011] 2 SLR 1057 at [37]). Further, even though most of the stolen items were recovered, save for cash of S$250, credit could not be given to Mr Lim for the fortuitous recovery of the stolen items. Considering the aforesaid circumstances, and after applying the full sentencing discount attributable to his early indication of plea, I sentenced him to 16 months’ imprisonment for the House-breaking Offence.

Whether caning should be imposed

68     The novel issue before me was whether s 458A of the PC provided for mandatory or discretionary caning. Further, if caning was discretionary, the other issue was whether caning ought to be imposed. Both parties agreed during the hearing that s 458A of the PC provided for discretionary caning. However, after the sentence was passed and no caning was imposed, the case was re-mentioned. The Prosecution then argued that Parliament, by virtue of s 191(4) of the Criminal Law Reform Act 2019 (No. 15 of 2019) (“CLRA”), intended to provide for mandatory caning under s 458A of the PC. However, this argument was eventually retracted. In any event, having considered the issue, my conclusion was that s 458A of the PC did not provide for mandatory caning in this case.

69     To understand why s 458A of the PC did not provide for mandatory caning in this case, it is important to first understand the legislative history and context of the offence under s 451 and punishable under s 458A of the PC. This was helpfully set out in Lim Wei Ho at [20]–[26]. In gist, ss 144 to 155 and 191 of the CLRA came into force on 1 January 2022, bringing into effect a suite of updates to the offences of criminal trespass, house-trespass and house-breaking in the Penal Code (Cap 224, 2008 Rev Ed) (“PC Cap 224”) (“the legislative amendments”). Specifically, following the legislative amendments, the offence of house-trespass under s 454 of the PC Cap 224 was replaced by the offence of house-breaking under s 451 of the PC. Section 458A of the PC Cap 224 was also amended to the current version in s 458A of the PC. Section 153 of the CLRA and s 458A of the PC provide as follows:

CLRA

Amendment of section 458A [PC Cap 224]

153. Section 458A of the Penal Code [PC Cap 224] is amended –

[…]

(b) by deleting the words “section 454 or 457 shall be punished with” and substituting the words “section 449, 450, 451 or 452 shall be liable to”

Penal Code 1871

Punishment for subsequent offence under section 449, 450, 451, or 452

458A. Whoever, having been convicted of an offence under section 449, 450, 451 or 452, commits an offence under section 449, 450, 451 or 452 shall be liable to caning in addition to the punishment prescribed for that offence.

[Emphasis added]

70     Further, s 191(4) of the CLRA, which was invoked by the Prosecution, provides as follows:

Savings and transitional provisions

191. […]

(4) Where a person who is convicted on or after the date of commencement of section 153 of an offence under section 449, 450, 451 or 452 of the Penal Code which is committed on or after that date, has a prior conviction for an offence under the repealed section 454, 455, 457 or 458 of the Penal Code as in force immediately before that date, the person shall be punished with caning in addition to the punishment prescribed for section 449, 450, 451 or 452 of the Penal Code (as the case may be) because of section 458A of the Penal Code as amended by section 153.

[Emphasis added]

71     As a starting point, the words “shall be liable” in s 458A of the PC do not have any mandatory connotation and are generally viewed as conferring a discretion (Poh Boon Kiat v PP [2014] 4 SLR 892 at [36]). However, the interpretive exercise must be guided by the textual and legislative context of the provision (Sim Wen Yi Ernest v PP [2016] 5 SLR 207 at [52]), which, in this case, supported the plain interpretation that the punishment of caning prescribed under s 458A of the PC was discretionary and not mandatory. The legislative history showed that Parliament intended for s 458A of the PC to provide for discretionary caning even for repeat offenders, if they were convicted after the legislative amendments came into force on 1 January 2020.

72     In August 2018, the Penal Code Review Committee (“PCRC”) recommended, amongst other things, the re-labelling of “house-trespass” as “house-breaking”, a re-calibration of the punishment provisions for the various forms of house-breaking, and the inclusion of the requisite transitional provisions relating to s 458A of the PC Cap 224 (see the PCRC’s Report of August 2018 at pp 382–383). In making these recommendations, the PCRC envisaged that one of the effects of the legislative amendments was a removal of the mandatory minimum sentences prescribed under the PC Cap 224, including for caning (see the PCRC’s Report of August 2018 at p 382).

73     Thereafter, Parliament accepted the PCRC’s recommendations and effected the legislative amendments. Specifically, s 153(b) of the CLRA substituted the phrase “shall be punished with caning” in s 458A of the PC Cap 224 with the phrase “shall be liable to caning” in s 458A of the PC (see the provisions in the table below). The aforesaid developments indicated to me that parliamentary intent in effecting the legislative amendments was to substitute mandatory caning with discretionary caning.

Section 458A of the Penal Code (pre-amendment)

Section 458A of the PC (post-amendment)

Punishment for subsequent offence under section 454 or 457

458A.    Whoever, having been convicted of an offence under section 454, 455, 457 or 458, commits an offence under section 454 or 457 shall be punished with caning in addition to the punishment prescribed for that offence.

Punishment for subsequent offence under section 449, 450, 451 or 452

458A.  Whoever, having been convicted of an offence under section 449, 450, 451 or 452, commits an offence under section 449, 450, 451 or 452 shall be liable to caning in addition to the punishment prescribed for that offence.



74     Further, the text of s 191(4) of the CLRA supported the interpretation that Parliament did not intend for s 458A of the PC to provide for mandatory caning, if an offender was convicted after the legislative amendments. Parliament, in enacting s 191(4) of the CLRA, expressly provided for mandatory caning for repeat offenders with previous convictions under the repealed s 454, 455, 457 and 458 of the PC Cap 224 (“the First Group”), but not for repeat offenders with previous convictions under ss 449–452 of the PC (“the Second Group”). By the application of the maxim expressio unius est exclusion alterius, which means to express one thing is to exclude the other, Parliament, by choosing not to include the Second Group while expressly providing for mandatory caning for the First Group, intended to subject the Second Group to discretionary caning instead (Low Guang Hong David and others v Suryono Wino Goei [2012] 3 SLR 185 at [18]). As Mr Lim’s previous conviction was one under s 451 of the PC and not one under the repealed provisions, he belonged to the Second Group of offenders who faced discretionary caning, and not mandatory caning, under s 458A of the PC.

75     Having established that the Court had the discretion to decide whether to impose caning, I declined to impose caning because it was a severe measure that need not be deployed here. Caning is regarded as a form of punishment that is more serious and more to be feared than imprisonment (see Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 (“Frederick Chia”)). Where caning was discretionary, the general policy was that caning would not be imposed unless the offence was committed with substantial violence (Frederick Chia at [18]). Caning might be appropriate if the offence was particularly grave or egregious. For example, in Sia Ah Kew & Ors v PP [1974] 1 MLJ 125, the Court of Criminal Appeal found the sentence of caning to be appropriate where the offenders had committed an offence of kidnapping for ransom, by abducting the victim with pistols and a dagger.

76     The cases therefore showed that caning would be a significant step-up in the punishment scale and should not be lightly imposed. While there were several aggravating factors associated with the House-breaking Offence, the need for deterrence was amply met by the lengthy imprisonment term imposed. Moreover, Mr Lim did not use any violence at all or hurt any victims. The Prosecution did not point to any other compelling factors or precedents that demonstrated the need for caning, or to explain why the imprisonment term imposed was insufficient to meet the ends of deterrence. Hence, I declined to impose caning for the House-breaking Offence.

Issue 2: Whether the proposed disqualification periods were appropriate

77     A disqualification order serves to punish, protect the public and deter the offender (see Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 at [13] and Kwan Weiguang v PP [2022] 5 SLR 766 (“Kwan Weiguang”) at [59]–[62]). It takes effect above and beyond the primary sentence of an imprisonment term (Kwan Weiguang at [62]). It is regarded as “the most satisfactory penalty for most motoring offences” because an offender is reminded every day of his offence and the unwarranted risks which he had placed on ordinary members of the public (Kwan Weiguang at [62]). The hope is that through the imposition of a disqualification order, the offender will no longer be a menace on the roads. I had these objectives in mind when determining the period of the disqualification orders below.

S/N

Charge/ Date

Offence

Prosecution

Defence

Order

1.

DAC-903093-2024

10.07.2022

Driving under DQ

s 43(4)(a) p/u

s 67A(1) RTA & s 50T(1)(a) PA (i.e. First DQ Offence)

36 months’ DQ from date of conviction

24 months’ DQ from date of conviction

30 months’ DQ with effect from date of release

2.

DAC-903094-2024

10.07.2022

Driving without insurance

s 3(1) p/u s 3(2) r/w s 3(3) of the MVA & s 50T(1)(a) PA

36 months’ DQ from date of conviction

 

24 months’ DQ from date of conviction

24 months’ DQ with effect from date of conviction

3.

DAC-903095-2024

10.07.2022

Careless driving

s 65(1)(a) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) PA

36 months’ DQ from date of release

24 months’ DQ from date of

30 months’ DQ with effect from date of release

4.

DAC-903099-2024

 

09.09.2022

Driving under DQ

s 43(4)(a) p/u s 67A(1) of the RTA & s 50T(1)(a) PA (i.e. Second DQ Offence)

48-60 months’ DQ from date of conviction

30 months’ DQ

36 months’ DQ with effect from date of release

5.

DAC-903101-2024

09.09.2022

Inconsiderate driving

s 65(1)(b) p/u s 65(5)(b) r/w s 67A(1) of the RTA & s 50T(1)(a) PA

48-60 months’ DQ from date of release

36 months’ DQ

30 months’ DQ with effect from date of release

6.

DAC-903103-2024

09.09.2022

Failing to render assistance

s 84(7) p/u s 131(2)(b) of the RTA & s 50T PA

24 months’ DQ from date of conviction

 

12 months’ DQ

24 months’ DQ from the date of release



78     I was also guided by the observations in Muhammad Saiful bin Ismail v PP [2014] 2 SLR 1028 (“Saiful”) at [18], where the High Court observed, in the context of offences under s 43(4) of the RTA, that a disqualification period that was shorter than the original disqualification period would do little to deter future like-minded offenders. The High Court further observed at [20] that in most cases, a person who drove under disqualification should expect a period of disqualification that would be at least twice the original period, unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability. Conversely, where there were aggravating circumstances, the disqualification period might well be more than twice the original period (Saiful at [20]).

79     In my view, the general principles set out in Saiful applied equally to other situations whereby an offender who had previously committed traffic offences re-offended by committing the same type of traffic offence(s) or similar traffic offence(s). It only made sense that a longer disqualification period should be imposed for the fresh traffic offence(s), if the original disqualification period was insufficient to deter the offender from re-offending. The High Court in Kwan Weiguang at [69]–[71] similarly emphasised that a longer disqualification period might be warranted if aggravating factors were present, or if the past driving records revealed the offender to be an unsafe driver with a cavalier attitude towards road safety or an unwillingness to comply with the law.

80     In this case, the traffic offences that attracted a disqualification order stemmed from two accidents that occurred on 10 July 2022 and 9 September 2022 respectively. The circumstances of the offences and Mr Lim’s past records were relevant in determining the appropriate period of disqualification. Applying the principles above, in respect of the First DQ Offence and the Second DQ Offence (see s/n 1 and 4 in the table at [77] above), the period of the disqualification orders was fixed at 30 months and 36 months respectively. As Mr Lim was already subjected to a 12-month disqualification order before committing the present offences, the period of disqualification for the First DQ Offence and the Second DQ Offence should minimally be 24 months. However, due to the presence of aggravating factors, and as the Second DQ Offence was more egregious (see [20] and [21] above), the disqualification period were adjusted to 30 months and 36 months respectively.

81     In respect of the offence of driving without insurance (see s/n 2 in the table at [77] above), I note that Mr Lim was subjected to a 36-month disqualification order in 2006, and an 18-month disqualification order in 2002. As these antecedents were dated, I did not simply apply an uplift to those disqualification periods when determining the appropriate period of disqualification. Instead, I took reference from the longest period of disqualification imposed on 30 March 2022 (i.e., 12 months), and fixed the disqualification period at 24 months.

82     In respect of the Careless Driving Offence and Inconsiderate Driving Offence (see s/n 3 and 5 of the table at [77] above), I similarly took reference from the longest period of disqualification ordered on 30 March 2022 (i.e., 12 months) when determining the appropriate period of disqualification. The period of disqualification should minimally be 24 months, which would be double the period of disqualification ordered on 30 March 2022. In view of the aggravating factors (see [37]–[39] above), I applied a modest uplift to derive the period of 30 months’ disqualification for each offence.

83     In respect of Failing to Render Assistance Offence (see s/n 6 of the table at [77] above), the period of disqualification ordered was twice the length of the disqualification ordered on 30 March 2022 for a similar offence of failing to provide the driver’s particulars, punishable under s 84(7) and 131(2)(b) of the RTA. Since Mr Lim re-offended despite having been subjected to a 12-month disqualification order before, the disqualification period of 12 months evidently did not have sufficient deterrent effect. As such, the Defence’s proposed period of 12 months was not appropriate.

84     The Prosecution sought a disqualification period of 48 to 60 months for the Second DQ Offence and the Inconsiderate Driving Offence, without explaining why the disqualification period sought was four to five times the longest period of disqualification ordered on 30 March 2022. I therefore declined to accept the Prosecution’s submissions pertaining to the period of disqualification.

Issue 3: Whether the disqualification period should commence from the date of release or the date of conviction

85     Apart from the disqualification periods, another material issue was whether the disqualification orders imposed for the First DQ Offence, the Second DQ Offence, and the Failing to Render Assistance Offence should commence from the date of conviction or the date of release. The RTA does not provide for the date of commencement of the disqualification order for such offences. Both parties, relying on the decision in Saiful, submitted that the disqualification period should commence from the date of conviction.

86     To recapitulate, Mr Lim committed the First DQ Offence on 10 July 2022. He then committed the drug consumption offence on or before 31 August 2022. Thereafter, he committed the Second DQ Offence and the Failing to Render Assistance Offence on 9 September 2022. The chronology is therefore as follows:

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General principles pertaining to the date of commencement for DQ orders

87     The High Court in Saiful set down the following general principles pertaining to the commencement date of disqualification orders (Saiful at [39] and [46]):

(a)     Where an offender is sentenced to a disqualification order and an imprisonment term in respect of the same set of offences, the former should generally commence at the end of the period of imprisonment. This is because an overlap between a disqualification order and a concurrent term of imprisonment will undermine the penal effect of the disqualification order.

(b)     Where an offender is sentenced to a disqualification order and an imprisonment term, and the sentences arise out of separate and unconnected offences, then it may be appropriate to have the disqualification commence from the date of conviction, even if this results in an overlap with a period of imprisonment imposed for a separate and unconnected offence that is committed after the offence for which the disqualification is imposed (Saiful at [46(b)]).

88     In Saiful, the appellant committed the offence of riding a motorcycle under disqualification on 23 November 2012, and various drug offences four months later, on 23 March 2013. Menon CJ held that the disqualification order imposed for the traffic offence should commence from the date of the appellant’s conviction rather than from the date of release (Saiful at [39]–[47]). This was primarily because the appellant appeared to have been fortuitously charged and convicted of two unconnected series of offences at the same time, and would have been prejudiced by his decision to plead guilty if the disqualification order commenced from the date of release.

89     Conversely, if the appellant pleaded guilty to the traffic offence and subsequently contested his drug offences at a separate hearing, at least part of the period covered by the disqualification order for the traffic offence would have overlapped with the imprisonment term for the drug offences. In addition, ordering the disqualification to commence upon the appellant’s release from prison would have the unintended effect of incentivising attempts to delay the resolution of the non-traffic offences, and to expedite the resolution of the traffic offence, with a view to undercutting the penal effect of the disqualification order. Menon CJ therefore gave an order for the disqualification order of eight years to commence from the date of the appellant’s conviction, as it was untenable that the appellant should be worse off in having pleaded guilty to both sets of offences than he might well have been had he chosen to contest one set of charges (Saiful at [45]).

90     It is pertinent to note that Saiful was a case that was “a little out of the ordinary”. In Saiful, it was entirely possible for the traffic offence to be resolved in court first before the drug offences were dealt with. However, due to “an accident of timing”, or “what was essentially a matter of chance and timing”, the appellant was charged and convicted of the two unconnected series of offences at the same time (Saiful at [42]). The High Court’s decision in Saiful must be understood in that context. Notably, Saiful did not provide for an immutable rule for a disqualification order to commence from an offender’s date of conviction, whenever an offender was sentenced to a disqualification order and an imprisonment term, and the sentences arose out of separate and unconnected offences. As was evident from the decisions of Muhammad Ramzaan s/o Akhbar v PP [2023] SGHC 9 (“Ramzaan”) and PP v Muhamad Nor Afendi Bin Rusly [2024] SGDC 59 (“Afendi”), the courts would exercise their discretion to order the disqualification period to commence from the date of release in appropriate cases.

91     Ultimately, the court hearing each case has the discretion to decide, based on the unique facts presented and the individual offender in question, whether the disqualification should commence from the date of conviction or the date of release. As the learned District Judge aptly observed in Afendi at [21], sentencing jurisprudence had since developed such that “the court must be alive to the particular factual circumstances and must exercise its discretion in relation to the commencement date of the disqualification order, to achieve a proportionate outcome”. The imperative to achieve a proportionate outcome warranted an exercise of my discretion, to order the disqualification to commence from Mr Lim’s date of release. My reasons were as follows:

92     First, the High Court’s concerns in Saiful did not apply to this case, as Mr Lim was solely responsible for the circumstances that led to him being convicted of separate and unconnected offences at the same hearing. The upshot of Saiful was that an offender ought not be prejudiced, or put in a worse position, by matters of chance, including the time and sequence in which the offences were dealt with by the courts (Saiful at [42] and [47]). Mr Lim, having chosen to re-offend within two weeks of his release, and to re-offend every one to three months from 10 July 2022 to 30 March 2023, could not be said to be a victim of chance.

93     As Mr Lim re-offended in quick succession over an extended period, it was entirely conceivable that the Police and the Prosecution would require time to conduct investigations, finalise the charging position and deal with the matter globally. Specifically, as the First DQ Offence amounted to a breach of remission order, and the drug consumption offence was committed only slightly over a month after the First DQ Offence, it would be unrealistic to proceed on the basis that Mr Lim could have pleaded guilty to the First DQ Offence first. With the sheer number of charges, prosecutions for the unconnected offences would, as far as possible, have been conducted in the same hearing, as any other approach would have prejudiced Mr Lim by depriving him of the opportunity to seek a global plead-guilty offer and concurrent sentences.

94     In sum, Mr Lim authored his own fate by electing to act the way he did. His deliberate and persistent re-offending – not an accident of timing or a matter of chance – led to him being convicted and sentenced for his offences at the same hearing. This was unlike Saiful, whereby the drug offences took place some four months after the traffic offence, and the circumstances that led to the sentencing court having both the traffic offence and the drug offences before it “appeared to be fortuitous” (Saiful at [47]). As such, the approach in Saiful could not be applied strictly to this case.

95     Second, the general approach in Saiful should not apply because the need for deterrence featured more prominently in this case, as compared to Saiful. Mr Lim was a habitual and serial offender who committed three sets of traffic offences within a mere three months. The offences committed were also relatively egregious in nature. Despite having been convicted and sentenced for an astounding range of traffic violations, he had no qualms re-offending by committing offences of the same nature. He committed the First DQ Offence whilst under a remission order, within two weeks of his release from prison, and must have known that the First DQ Offence would attract an enhanced imprisonment term. He later committed the Second DQ Offence and the Failing to Render Assistance Offence about nine days after the drug consumption offence, and must have known that the drug offence was a serious offence that would attract a substantial period of imprisonment.

96     In Ramzaan at [22], the High Court observed that where an offender knew he had already committed an offence that might attract imprisonment, there must be a marginal disincentive to deter further offending that would likely attract a disqualification order (see also Saiful at [49]). If periods of disqualification for such offenders always ran concurrently with their existing imprisonment sentences, there would be no marginal disincentive for offenders facing lengthy imprisonment terms not to commit further driving offences. As such, maintaining the penal effect of the DQ order should take precedence in order to preserve deterrence (Ramzaan at [23]). The same principles applied to the traffic offences here.

97     For the reasons above, I ordered the disqualification period for the First DQ Offence, the Second DQ Offence and the Failing to Render Assistance Offence to commence from the date of Mr Lim’s release from prison.

Issue 4: Whether the maximum enhanced sentence should be imposed pursuant to s 50T of the Prisons Act 1933

98     Mr Lim was liable for enhanced punishment under s 50T(1)(a) of the PA for 22 of the 29 offences for which he was charged, and nine of the 12 charges he pleaded guilty to. Both parties rightly identified Abdul Mutalib bin Aziman v PP and other appeals [2021] 4 SLR 1220 (“Abdul Mutalib”) as the decision that laid down the sentencing framework for determining enhanced sentences under s 50T(1)(a) of the PA. However, after applying this framework, the Prosecution submitted for a sentence of 230 days, whereas the Defence submitted for an enhanced sentence of 120 days.

99     Applying the framework in Abdul Mutalib, I first considered the gravity of the fresh offences committed, in order of the most serious to the least serious of the fresh offences (Abdul Mutalib at [78]):

(a)     The drug consumption offence was the most serious offence. Mr Lim consumed methamphetamine after committing a spate of traffic offences on 10 July 2022 and 29 August 2022, and within a mere three months after his release on the remission order (Abdul Mutalib at [58]). Even after he was arrested for the drug consumption offence, he consumed controlled drugs again on or before 9 March 2023, and committed a string of other serious property-related offences and traffic offences. Most of the offences were committed while he was already under investigation for his earlier offences or while he was on court bail. His persistent recalcitrance was indicative of his complete lack of commitment to rehabilitation. Based on the gravity of the drug offence and Mr Lim’s lack of rehabilitative prosects, the breach arising from the drug consumption offence was moderate and fell within the upper end of Band 2 or around two-third of the remaining duration of the remission order (178 days). The enhanced sentence imposed was therefore 118 days (2/3 x 178 days).

(b)     On the gravity scale, the Forgery Offence was also a serious offence but not as serious as the drug consumption offence. The facts of the Forgery Offence were similar to Mr Lim’s previous forgery offence. His prior and current forgery offences both involved him forging documents to obtain prescription-only medications. The similarities in the offending conduct were indicative of his poor rehabilitative capacity (Abdul Mutalib at [59]). For these reasons, the breach arising from the Forgery Offence fell within the mid-point of Band 2 or around half of the remaining duration of the remission order (107 days). The enhanced sentence imposed was therefore 53 days (1/2 x 107 days).

(c)     The Second DQ Offence committed on 9 September 2022 was the next serious offence. This offence arose from the accident on 9 September 2022, after Mr Lim was arrested for the drug consumption offence and investigated for the traffic-related offences on 10 July 2022 and 29 August 2022. The Second DQ Offence was therefore of moderate gravity. Coupled with the obvious lack of rehabilitative prospects, the severity of the Second DQ Offence was assessed to be at the lower end of Band 2 or around 40% of the remaining duration of the remission order at the time of the offence (169 days). This worked out to be an enhanced sentence of 67 days. However, as the cumulative enhanced sentence to be imposed under s 50T(1)(a) of the PA must not exceed the remaining duration of the remission order at the time of Mr Lim’s earliest offence, i.e. 230 days, the sentence must be calibrated downwards to 59 days.

100    As the maximum duration of the enhanced sentence that could be imposed was reached, I did not separately consider each of the remaining proceeded charges that attracted enhanced sentences (Abdul Mutalib at [78]). Instead, as a final step, I took a “last look” at all the facts and circumstances of the case and assessed that the maximum enhanced sentence of 230 days was fair and appropriate, given the gravity of Mr Lim’s offending conduct and his poor rehabilitative capacity as described above. Hence, further adjustments to the enhanced sentences were not necessary.

Issue 5: Whether the aggregate sentence was consistent with the one-transaction rule and the totality principle

101    Both parties agreed that six sentences should be ordered to run consecutively but differed in their selection of the consecutive sentences. Having considered the parties’ submissions and all relevant facts, I ordered the sentences for four offences to run consecutively, as the four offences – the drug consumption offence, the Second DQ Offence, the Forgery Offence and the House-breaking Offence – involved unrelated offences that invaded distinct legally protected interests and could not be characterised as being part of the same transaction. Sentences for the unrelated offences should generally be ordered to run consecutively (PP v Raveen Balakrishnan [2018] 5 SLR 799), and both parties did not raise any facts that warranted a departure from the general position.

102    Further, given the sheer number and type of offences Mr Lim committed since he was released, his extensive list of similar antecedents and the absence of compelling mitigating factors, the aggregate sentence of one year, 24 months and 10 weeks’ imprisonment (i.e. three years and 10 weeks), plus the enhanced sentence of 230 days and the 36-month disqualification order that commenced from the date of release, could not be said to be crushing. Such a sentence was necessary and proportionate to his overall criminality. As Mr Lim could not be deterred despite having served a global sentence of two years after his conviction on 30 March 2022, a longer imprisonment term was required to effectively deter him from re-offending. Having taken a “last look” at all the facts and circumstances, I was satisfied that the aggregate sentence was in keeping with the one-transaction rule and the totality principle.

Conclusion

103    The sentences imposed in this case were meant to set Mr Lim on the straight and narrow path, and to firmly deter him from falling into dark abyss of crime. Yet the sentences were also tempered by leniency and proportionality, with the hope that Mr Lim would turn his life around, stop his offending streak and reunite with his family at the earliest opportunity. If Mr Lim persists in his criminal ways and fails to do right by the law, the same measure of leniency may not be shown to him in future, and he may be made to bear the full weight of the law.

"},{"tags":["Criminal Law – Offences – Sexual offences – Outrage of modesty","Criminal Law – Offences – Voluntarily causing hurt – Customs offences","Criminal Procedure and Sentencing – Sentencing – Multiple offences – Forms of punishment – Corrective training"],"date":"2024-11-05","court":"District Court","case-number":"District Arrest Case No 909726 of 2021 and others","title":"Public Prosecutor v Toh Lam Seng","citation":"[2024] SGDC 285","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32432-SSP.xml","counsel":["Sarah Siaw (Attorney-General's Chambers) and Woo Jia Min (Singapore Customs) for the Prosecution","Chooi Jing Yen and Chen Yongxin (Law Society Pro Bono Services, CLAS) for the Defence"],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Janet Wang","html":"Public Prosecutor v Toh Lam Seng

Public Prosecutor v Toh Lam Seng
[2024] SGDC 285

Case Number:District Arrest Case No 909726 of 2021 and others
Decision Date:05 November 2024
Tribunal/Court:District Court
Coram: Janet Wang
Counsel Name(s): Sarah Siaw (Attorney-General's Chambers) and Woo Jia Min (Singapore Customs) for the Prosecution; Chooi Jing Yen and Chen Yongxin (Law Society Pro Bono Services, CLAS) for the Defence
Parties: Public Prosecutor — Toh Lam Seng

Criminal Law – Offences – Sexual offences – Outrage of modesty

Criminal Law – Offences – Voluntarily causing hurt – Customs offences

Criminal Procedure and Sentencing – Sentencing – Multiple offences – Forms of punishment – Corrective training

5 November 2024

Judgment reserved.

District Judge Janet Wang:

Introduction

1       The accused, a 54-year old male Singaporean, was convicted upon the conclusion of a trial before me on a charge under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) for an offence of outrage of modesty involving a female victim below 14 years of age. My grounds of decision on the order of conviction can be found in Public Prosecutor v Toh Lam Seng [2023] SGDC 294 (“GD”).

2       Upon his conviction after trial on the charge of outrage of modesty, the accused pleaded guilty to one charge each of voluntarily causing hurt (DAC-917902-2023) and storing uncustomed tobacco products, namely, duty unpaid cigarettes (DAC-909191-2023). These offences were committed during his trial for the outrage of modesty offence, and while he was on bail. The charges are set out as follows:

DAC-917902-2023

You are charged that you, on 24 September 2022 sometime after 8pm, at location Y, Singapore, did voluntarily cause hurt to Chin Fong Yoke (female / 51 years old), to wit, by punching her head, slapping her face and pulling her hair, intending to cause her hurt and thereby causing her abrasions and bleeding on her face, and you have thereby committed an offence punishable under section 323 of the Penal Code 1871.

DAC-909191-2023

You are charged that you, on the 15th day of June 2023, at about 10.42 p.m., inside unit X of Block 6 Marsiling Drive, Singapore, did store uncustomed goods, to wit, 197 cartons x 200 sticks, 4 packets x 20 sticks and 55 sticks of assorted brands of duty unpaid cigarettes weighing 36.300 kilogrammes, on which excise duty of $19,419.05 was not paid, and you have thereby, committed an offence under Section 128I(1)(a)(ii) of the Customs Act 1960 punishable under section 128L(4) of the same Act

The accused further consented to be taken into consideration a charge under section 128I(1)(a)(ii) of the Customs Act 1960, namely, DAC-909192-2023, for the offence of storing duty unpaid cigarettes on which the Goods and Services tax was not paid.

3       The accused was assessed and found suitable for corrective training and preventive detention.[note: 1]

4       I impose a sentence of five years’ corrective training and set out my reasons below.

Punishment prescribed by law

5       For an offence of aggravated outrage of modesty under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed), the accused shall be punished with an imprisonment term not exceeding 5 years, or with fine, or with caning, or with any combination of such punishments.

6       The accused is liable to be punished with a maximum imprisonment term of 3 years, or a fine not exceeding $5000, for committing the offence of voluntarily causing hurt under s 323 of the Penal Code 1871.

7       For the offence of storing uncustomed goods consisting of tobacco products exceeding 2 kilogrammes in weight under s 128I(1)(ii) of the Customs Act 1960, the accused is liable on conviction to a fine of not less than 15 times the amount of the customs duty, excise duty or tax the payment of which would have been evaded by the commission of the offence, subject to a minimum of $1,000, and not more than 20 times the amount of the customs duty, excise duty or tax the payment of which would have been so evaded or $10,000, whichever is the greater amount, or to imprisonment for a term not exceeding 3 years, or to both.

Antecedents

8       The accused has numerous antecedents.[note: 2] As these are of significant relevance in determining the appropriate sentence, the antecedents are reproduced below:

Date of conviction

Charge(s)

Sentence

9 April 1987

Theft in dwelling under s 380 of the Penal Code

1- year probation

4 May 1989

Robbery with common intention under s 392 read with s 34 of the Penal Code

Reformative training

30 November 1989

Theft under s 379 of the Penal Code – (two charges)

Reformative training

12 June 1992

Rioting under s 147 of the Penal Code

6 months’ imprisonment

3 July 1992

Drug possession under s 8(a) of the Misuse of Drugs Act (three charges)

Fine of $2000 each (paid in full)

24 May 1993

i)Voluntarily causing hurt by dangerous weapons or means under s 324 of the Penal Code

ii) Voluntarily causing hurt by dangerous weapons or means

9 months’ imprisonment

6 months’ imprisonment

21 September 1993

i) Robbery under s 392 of the Penal Code

ii) Snatch theft under s 356 of the Penal Code

iii) Voluntarily causing hurt under s 323 of the Penal Code

(one charge taken into consideration)

42 months’ imprisonment and 12 strokes of the cane

18 months’ imprisonment

2 months’ imprisonment

26 May 1997

Detention order under s 30(a) of the Criminal Law (Temporary Provisions) Act

4 February 2003

Voluntarily causing hurt under s 323 of the Penal Code

12 month’s imprisonment

3 September 2003

Affray under s160 of the Penal Code

1-year imprisonment

1 February 2007

Rape under s 376(1) of the Penal Code

16 months’ imprisonment and 10 strokes of the cane

1 April 2008

Carnal connection with a female below 16 years of age under s 140(1)(i) of the Women’s Charter – (two charges proceeded with and another two charges taken into consideration.)

2 years and 6 months’ imprisonment on each proceeded charge



Summary of Facts [note: 3]

9       The accused pleaded guilty to the Statement of Facts in respect of each proceeded charge unreservedly. A summary of the salient facts are as follows:

S 323 Penal Code charge (DAC-917902-2023) (“VCH”)

10     According to the Statement of Facts to which the accused pleaded guilty unreservedly, the accused assaulted the victim by the punching her face and causing her nose to bleed. He also pulled the victim’s hair and slapped her face several times. The victim was regular visitor to the accused pet shop where she was given free items by the latter and his wife on several occasions.

11     The offence occurred on 24 September 2022 at the pet shop belonging to the accused and his wife. At the material time, the trial against the accused involving the outrage of modesty offence which took place in the same pet shop was ongoing.

12     The victim had visited the pet shop to request for free cat food. The accused rejected her request and chased her out of the pet shop. Angered by the accused, the victim scolded and called the accused a rapist. At the material time, she was aware of the accused person’s prior conviction for the offence of rape. The victim’s actions angered the accused.

13     Subsequently on the evening of the same day, the victim returned to the pet shop where she saw the accused seated and smoking outside the shop with his friends. As she was still reeling from anger at the accused, the victim started to scold the accused and told him how she despised him. She also called him a rapist. The accused approached the victim and assaulted her. He pulled her towards the shop and told his wife to call the police. The victim fell to the floor as the accused was pulling her. However, the accused persisted and continued to drag her towards the pet shop, before he finally released his grasp and watched over the victim before the police arrived.

14     The victim was observed to be bleeding on her face and sustained scratches on her hands immediately after the assault. On medical examination, she was noted to have abrasions on her right knee and right chin. According to the examining resident physician at Woodlands polyclinic, the victim described having flashbacks of the assault and nightmares due to the incident. The clinical assessment was one of alleged assault with acute stress reaction. The victim was referred to the Institute of Mental Health Psychiatry department for follow-up treatment regarding her acute stress reaction and awarded medical leave of one day.

S 128I(1)(a)(ii) Customs Act charge (DAC-909191-2023) (“Customs”)

15     In early 2023, the accused bought duty unpaid cigarettes from a peddler, Ah Di, in Marsiling. He agreed to help Ah Di store these cigarettes in the residential unit of his girlfriend and co-accused, Wang Sze Ming (“Wang”). Through Ah Di, the accused became acquainted with an unknown Chinese female, Da Jie, who coordinated illicit cigarette activities in Singapore. The accused knew and assisted Da Jie in the collection and delivery of duty unpaid cigarettes. Upon notification of the arrival of the uncustomed goods, the accused collected these at the void deck of Wang’s unit and stored these in the unit. The accused also assisted Da Jie to repack the duty unpaid cigarettes into smaller quantities for her delivery man for collection and delivery to her customers. The accused was provided with the delivery details to facilitate his repacking of the tobacco products. On some occasions, the accused assisted in the delivery of the uncustomed goods and the collection of the sale proceeds. In return, he was paid an amount in the range of $20 to $30. The accused retained some of the duty unpaid cigarettes for personal consumption and for sale. Wang assisted the accused to deliver and sell some of the uncustomed goods on a few occasions.

16     On 15 June 2023, the accused and Wang were arrested in the unit with duty unpaid cigarettes that weighed a total of 36.300 kg with an excise duty of $19,419.05.

Prosecution’s submissions on sentence

17     The prosecution seeks a minimum term of seven years’ preventive detention.[note: 4]

18     In support of its submissions, the prosecution highlights the recalcitrance of the accused despite having undergone a substantial period of incarceration for 18 years and 6 months of imprisonment.[note: 5] According to the prosecution, the facts suggested that the accused is not inclined to reform or rehabilitation. The prosecution argues that the protection of the public is the foremost consideration, given that rehabilitation is not a realistic prospect, and maintains that preventive detention is to be preferred over corrective training.[note: 6]

Defence submissions on sentence and mitigation plea

19     The defence proposes a sentence of not more than 21 months’ imprisonment on all the charges. The global sentence includes an individual imprisonment term not exceeding 16 months in respect of the outrage of modesty charge, one not exceeding one-month imprisonment for the offence charge of voluntarily causing hurt, and an imprisonment term not in excess of four months with regard to the customs charge.[note: 7]

The appropriate sentence

Deterrence as the dominant sentencing consideration

20     Deterrence was the dominant sentencing consideration in the present case. The following relevant factors, among other non-exhaustive factors, as identified in PP v Law Aik Meng [2007] 2 SLR (R) 814 at [24] - [25], would attract the sentencing principle of general deterrence:

(i)     Offences affecting public safety and security;

(ii)     Offences leading to public disquiet; and

(iii)     Difficulty of detection

These factors were demonstrably present. The present offence was committed against a young and vulnerable member of the public in a pet shop located within the precinct of public housing. The victim was a customer at the pet shop where the accused was working at the material time. The accused perpetrated the offence against the victim in an insidious manner, namely, in the pet shop when no customers were present, to avoid detection. Alongside the public disquiet and unease engendered, these factors clearly attract deterrence as a key sentencing consideration.

Application of the framework in Sim Yeow Kee

21     The sentencing framework established in Sim Yeow Kee v Public Prosecutor and another appeal [2016] 5 SLR 936 (“Sim Yeow Kee”) is useful when considering cases involving corrective training. Similarly, the framework can be applied to preventive detention: see Ow Gan Wee v Public Prosecutor [2023] SGHC 135 at [4].

22     The technical requirements for both corrective training and preventive detention are met in the present case in the first stage of Sim Yeow Kee. These requirements are found in s 304(1) and s 304(2) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”).

(1)    Where a person of 18 years of age or above —

(a)    is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least twice since he or she reached 16 years of age for offences punishable with such a sentence; or

(b)    is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient with a view to the person’s reformation and the prevention of crime that the person should receive training of a corrective character for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to corrective training for a period of 5 to 14 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

(2)    Where a person 30 years of age or above —

(a)    is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least 3 times since he or she reached 16 years of age for offences punishable with such a sentence, and was on at least 2 of those occasions sentenced to imprisonment or corrective training; or

(b)    is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient for the protection of the public that the person should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to preventive detention for a period of 7 to 20 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

23     I next consider whether it is expedient to sentence the accused to CT with a view to his reformation and prevention of crime. In respect of whether it is expedient to sentence the accused to PD in order to protect the public, the same considerations would apply.

24     In respect of the likely imprisonment term that would be imposed for the index offences. I am mindful of the sustained pattern of offending conduct presented by the accused, given his history of similar antecedents. While the present set of offences are less serious in nature in comparison with those involved in his prior antecedents, the present offences must be viewed in the context of the repeated nature of the accused’s offending. The principle of escalation would warrant a longer term of incarceration to fulfill the needs of both general and specific deterrence. Equally aggravating is the fact that the accused had committed the offences that he pleaded guilty to while he was released on bail and during his trial for the offence of outrage of modesty.

The likely imprisonment term

S 354(2) Penal Code charge (DAC-909726-2021)

25     The case of GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”) provides guidance in the sentencing of offences under s 354(2) of the Penal Code. The High Court in GBR established a sentencing framework involving the consideration of offence-specific aggravating factors to determine the gravity of the offence before emplacing the offence within an appropriate band of imprisonment. These factors include the degree of sexual exploitation, the circumstances of the offence and the harm caused to the victim.[note: 8] Having ascertained the gravity of the offence, the court must determine precisely where the offender’s conduct falls in the three sentencing bands as follows (GBR at [31]-[37]):

Band 1: less than one year’s imprisonment

This applies to cases at the lowest end of the spectrum of seriousness where no intrusion of the victim’s private parts is involved. Typically, this category of cases involve a fleeting touch or touch over the victim’s clothes and caning is generally not imposed.

Band 2: one to three years’ imprisonment

Cases involving two or more of the aggravating factors will fall within this band and usually attract caning of at least three strokes.

Band 3: three to five years’ imprisonment

Cases involving the most serious instances of aggravated outrage of modesty where such aggravating factors as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim, are present. As a starting point, caning of at least six strokes ought to be imposed.

26     The next stage of the framework entails having regard to the general aggravating and mitigating factors that are specific to the offender. These include the number of charges taken into consideration, the lack of remorse, relevant antecedents demonstrating recalcitrance, a timeous plea of guilt or the presence of a mental disorder or intellectual disability.[note: 9] Other considerations where the offender is certified to be unfit for caning by virtue of his age being 50 years and above at the time of the caning or medical reasons, are equally relevant.[note: 10] In addition to imprisonment, caning should be imposed to adequately meet the needs of deterrence as warranted by the factual circumstances, particularly where there is intrusion of the victim’s private parts or sexual organs.[note: 11]

27     Applying the framework to the present case, I consider the offence-specific aggravating factors. While there is no finding of skin-to-skin contact with the victim’s private parts, the degree of sexual exploitation was considerable. The manner and extent of how the accused touched the victim were by no means fleeting. His sexual exploitation of the victim was sustained and involved contact with numerous areas of the victim’s body including her left shoulder, her left arm, the top of her chest, her breasts, her stomach, the side of her body at the waist, her left thigh and left inner thigh (GD at [17]-[20]). The touching of her breasts occurred over the victim’s clothes.

28     Pertinently, the victim suffered psychologically. During the molestation, the victim was in shock and “froze” (GD at [21]). After the incident, she felt highly anxious and troubled. She was fearful of going to school on her own. Her sleep and studies were also affected (GD at [38]-[39]). As observed by Dr Woo, the victim displayed distress, anxiety, sadness and fear immediately after the incident and experienced flashbacks and recurrent thoughts and nightmares of the event, in addition to being easily startled (GD at [112]-[113]). According to Dr Woo, these were symptomatic of post-traumatic stress disorder (GD at [256]-[257]). The psychological harm caused to the victim is a relevant aggravating factor.

29     Equally aggravating is the degree of premeditation on the part of the accused as shown by the manner in which he capitalised on the victim’s concern for her pet hamster and her fondness of hamsters. The victim was a regular customer at the pet shop. She described the accused as kind because he allowed her to play with the hamsters in the pet shop (GD at [11] and 93]). It is evident that the victim had developed trust in the accused when she brought her hamster to the pet shop to consult him on its skin condition. Notably, there is an abuse of his position of trust as a shop keeper towards the customer.

30     It was the victim’s evidence that she chose to go to school immediately after the incident instead of going home to inform her mother because she was afraid that her mother would not believe her (GD at [26] and [71]). The victim described that it was difficult for her to see her mother’s face after what had happened (GD at [32]). As recognised by the court in GBR, the fear and reluctance of victims to share their ordeals with family members underscore the real concern that the courts have over the difficulty of detection of such cases. Accordingly, “general deterrence must feature prominently in the sentencing equation” (GBR at [42]).

31     Applying the first stage of the GBR framework, the totality of the offence-specific aggravating factors brings the case within Band 2, at an indicative starting point of 20 months’ imprisonment. Given that caning will nearly always be imposed, the suggested starting point would have been three strokes of the cane (GBR at [33]). However, the accused, by reason of his age of 54 years, is statutorily exempted from caning.

General aggravating and mitigating factors

32     Turning next to the general aggravating and mitigating factors, the accused is not eligible for any sentencing discount that would have been accorded to a guilty plea, having claimed trial to the charge of outrage of modesty. The accused showed not an iota of remorse for his conduct as he sought to portray the victim in negative light by casting aspersions on her character (GD at [348]-[349]).

33     Relevant antecedents demonstrating recalcitrance are the accused person’s convictions for rape and carnal connection offences in 2007 and 2008 respectively. These involved young and adolescent female victims. The common thread running through these antecedents and the present case is that the offences revolved around the accused person’s pet shop.

34     For the rape conviction, the accused was convicted and sentenced to 16 years’ imprisonment and 10 strokes of the cane at the conclusion of a trial on a rape charge involving a 14-year old female victim: see Public Prosecutor v Toh Lam Seng [2007] SGHC 95.[note: 12] As highlighted by the prosecution, the facts mirrored those of the present case.[note: 13] The accused had befriended the victim among a group of school attending children who frequently gathered at his pet shop. The accused cultivated the goodwill and trust of the children by gestures of offering treats and being a peacemaker in their disputes. The accused made advances towards the victim but was rejected. He subsequently forced himself upon her and raped her on a hillock. The accused used violence on the victim. A few days after the rape incident, the accused brought the victim to a basement carpark where he applied force on her by pushing her against the wall and attempted to sexually assault her again. His attempt was thwarted by the arrival of the victim’s friends. The defence mounted by the accused at the trial was one of denial.

35     In respect of the carnal connection offences, the accused committed these against a 15-year old girl on four occasions in December 2005 and about three months prior to the rape offence on 18 March 2006. The victim knew the accused through her peers who met him at his pet shop. The victim developed trust in the accused after confiding in him. The accused assured the victim and offered to help her when she needed. Subsequently, the accused brought the victim to a park and made sexual advances towards her, which were rejected. However, the accused persisted and engaged in sexual intercourse with the victim. After the act of sexual intercourse, the accused gave the victim a puppy from his pet shop. The second incident took place shortly after this, where the accused drove the victim to a field to play with the puppy and had sexual intercourse with her inside the van.[note: 14]

36     The prosecution further highlighted that the accused committed the present offence of outrage of modesty in less than two years after his release from prisons on 13 August 2018, upon serving his sentence for the sexual offences. The accused reoffended in June 2020. This was after he befriended the victim who visited his pet shop sometime in 2019.[note: 15]

37     These antecedents bear striking similarities to the present offence. The accused denied the commission of the rape offence and the present outrage of modesty offence at both trials. His modus operandi of targeting young and adolescent female victims and gaining their trust under the guise of friendship and affability is the common thread running through all his sexual offences, past and present. These antecedents also reveal the accused person’s propensity towards violence.

38     In light of his similar antecedents, the principle of escalation will apply to justify a longer imprisonment term to be imposed on such a persistent offender as the accused (see Sim Yeow Kee at [99] citing Tay Kay Beng v PP [2006] 4 SLR(R) 10 at [14]). The courts have recognised the significance of escalating the subsequent sentence for an offender who has already committed the same sort of offence in order to specifically deter him from committing further offences of that nature (see PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR (R) 334 at [43] and PP v Ng Bee Ling Lana [1992] 1 SLR(R) 448 at [13], cited in Sim Yeow Kee at [99] ). Given the accused sustained pattern of criminal conduct involving adolescent female victims, I agree with the prosecution that specific deterrence justifies a significant uplift in the present sentence.[note: 16]

39     Equally relevant is that the present offence was committed barely two years after the accused person’s release from imprisonment for the rape and carnal connection offences. This pointed towards an utter lack of contrition and remorse for his wrongdoing. His level of culpability is heightened by this offender-related aggravating factor (GBR at [39]).

Imposition of imprisonment in lieu of caning

40     At 54 years of age, the accused is certified unfit for caning (s 325(1)(b) of the Criminal Procedure Code 2010 (“CPC”)). The court is empowered to enhance the imprisonment term by up to a maximum term of 12 months in lieu of caning (s 325(2) of the CPC). I next consider whether such an enhancement is warranted in the present case. The High Court case of Amin bin Abdullah v Public Prosecutor [2017] 5 SLR 904 (“Amin bin Abdullah”) held that an imprisonment term in lieu of caning may be appropriate in such an offence as outrage of modesty, where there is the need for a sufficiently deterrent and retributive sentence (at [73]).

41     The present case involved an exploitation of a vulnerable class of victims, namely, a minor under the age of 14. This is a substantial aggravating factor that warrants the need to maintain deterrence and achieve due retribution, both of which are the dominant sentencing principles behind the imposition of caning. The offence of outrage of modesty committed against a minor under the age of 14 is especially reprehensible and an additional term of imprisonment is necessary to compensate the lost deterrent and retributive effects of caning due to the exemption.

42     In Public Prosecutor v Tan Kok Leong [2017] SGHC 188, the High Court noted that the benchmark sentences for offences under s 354 of the Penal Code involving intrusion of the victim’s private parts or sexual organs is nine months’ imprisonment and three strokes of the cane. In enhancing the sentence of the offender, who was a medical professional above 50 years of age, for the charges under s 354(1) of the Penal Code by two months per charge, the High Court saw the need for a sufficiently deterrent and retributive sentence to address the aggravating factor of abuse of trust by virtue of the offenders having taken advantage of their professional positions to commit the offences (at [89]-[91]).

43     Taking further guidance from Amin bin Abdullah at [90], where the High Court provided the following indicative guidelines in the calibration of extent of the enhancement, namely: (a) one to six strokes avoided: up to three months’ imprisonment; (b) seven to 12 strokes avoided: three to six months’ imprisonment; (c) 13 to 18 strokes avoided: six to nine months’ imprisonment; and (d) more than 19 strokes avoided: nine to 12 months’ imprisonment, I consider an enhancement of two months’ imprisonment in lieu of three strokes of the cane to be appropriate.

44     I next address the mitigating factors. In my view, there are none. The accused did not enter a timeous plea of guilt. He claimed trial to the present charge and the victim was made to revisit the traumatic episode. Notwithstanding his conviction, the accused continues to deny the commission of the offence.

45     Having regard to the totality of the aggravating factors presented, I am of the view that the accused conduct would fall within the upper range of Band 2, with a sentence of 32 months’ imprisonment.

S 323 Penal Code charge (DAC-917902-2023) (“VCH charge”)

46     The case of Niranjan s/o Muthupalani v Public Prosecutor [2024] 3 SLR 834 (“Niranjan”) is instructive in setting out the sentencing framework for offences of such a genre, which is premised on the existing framework set out by the High Court in Low Song Chye v Public Prosecutor and another appeal [2019] 5 SLR 526 (“Low Song Chye”). In Niranjan, the court revised the sentencing framework to apply to offenders claiming trial in the interests of greater clarity and consistency in sentencing, and to reduce the risks of future potential misapplication of the framework (at [62]). Of direct relevance is the sentencing range for offences which were committed after 1 January 2020 involving first offenders pleading guilty.[note: 17] This is set out as follows:

Band

Hurt caused

Sentencing range under the modified Low Seng Chye framework (first-time offenders who pleading guilty)

1

Low harm: no visible injury or minor such as bruises, scratches, minor lacerations or abrasions

Fines or custodial term up to six weeks’ imprisonment

2

Moderate harm: hurt resulting in short hospitalisation or a substantial period of medical leave,

Between six weeks’ and nine months’ imprisonment

3

Serious harm: serious injuries which are permanent in nature and/or which necessitate significant surgical procedures

Between nine months’ and 36 months’ imprisonment



47     In applying the two-stage inquiry under the Low Song Chye framework, I first determine the harm caused to the victim to fall within Band 1 of the modified indicative sentencing range. On examination, the injuries sustained by the victim were abrasions of her right knee and over her right chin, measuring 1 cm by 1 cm. Apart from physical harm, the victim suffered psychological harm. She experienced flashbacks of the assault and nightmares. She was diagnosed to be suffering from acute stress reaction to the assault by the accused.[note: 18] The victim was treated conservatively with symptomatic medication for her pain and referred to Institute of Mental Health for her condition of acute stress reaction. An appropriate indicative starting sentence ought to be one-month imprisonment.

48     At the second stage, I consider the following relevant factors as identified in Public Prosecutor v BDB [2018] 1SLR 27 (“BDB”) at [62]-[70] and [71]-[75], and reaffirmed in Niranjan at [66]-[67]. These are aggravating factors involving the extent to which of deliberation or premeditation, the manner and duration of the attack, the victim’s vulnerability, the use of any weapon, whether the attack was undertaken by a group, any relevant antecedents on the offender’s part, and any prior intervention by the authorities. Mitigating factors include the offender’s mental condition, genuine remorse and personal financial or social problems.

49     The accused has a chequered history of violence related antecedents. These spanned a period of over 30 years from 1992. These included the use of force in the course of rioting, voluntarily causing hurt using dangerous weapons or means, voluntarily causing hurt and affray. The accused was sentenced to imprisonment for his commission of these offences. Specific deterrence warrants an enhanced imprisonment term to be imposed, given the accused marked proclivity towards criminal offending (see Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”)).

50     Of his similar antecedents involving an offence of voluntarily causing hurt, the accused pleaded guilty to one charge and consented to another charge under s 323 of the Penal Code to be taken into consideration. He was sentenced to an imprisonment term of 2 months for the offence on 21 September 1993. According to the prosecution, the accused subsequently reoffended and was convicted and sentenced on 4 February 2003 to 12 months’ imprisonment for an offence of voluntarily causing hurt involving the act of swinging a four-metre long metal chain at his male tenant of his pet shop and hitting the latter’s head during a verbal dispute. The accused was unhappy that the victim had started his own pet shop business elsewhere and was trying to poach his customers (see Public Prosecutor v Toh Lam Seng [2003] SGDC 32).[note: 19] In affirming the sentence of 12 months’ on appeal, the High Court observed that the accused had shown himself to be a violent man, from his numerous antecedents for violent behaviour. While the victim was not innocent by precipitating the attack with his antagonistic manner, the appellant court found the accused person’s reaction to be far in excess of reasonable behaviour (Toh Lam Seng v Public Prosecutor [2003] 2 SLR(R) 346 at [21]-[25] ).[note: 20] Similarly, while the victim in the present case was not altogether without blame when she scolded and called him such names as “rapist”, the accused person’s reaction was disproportionate.

51     It is pertinent to note that barely within less than a year of his release from prison, the accused reoffended on 2 Sept 2004 by committing affray. In sentencing him to the maximum custodial sentence of one-year imprisonment, the court noted the violent disposition of the accused and previous unsuccessful attempts to rehabilitate him from his violent nature (Public Prosecutor v Toh Lam Seng [2004] SGMC 12 at [7]-[8]).

52     The accused committed the VCH offence when his trial involving the outrage of modesty offence was ongoing, and while he was released on bail. The court further note that the accused had overtly assaulted the victim outside his pet shop in full view of the public including his friends. In the face of overwhelming evidence, the accused person’s plea of guilt is a Hobson’s choice. There is limited weight to be accorded to his plea of guilt.

53     Accordingly, I am of the view that a sentence of eight months’ imprisonment is appropriate.

S 128I(1)(a)(ii) Customs Act charge (DAC-909191-2023) (“Customs charge”)

54     The case of Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 (“Yap Ah Lai”) is instructive in setting out the sentencing framework involving offences of importation under s 128F and punishable under s 128L(4) of the Customs Act under s 128, where the offender’s role was confined to pure importation, where he pleaded guilty at the earliest chance and was a first-time offender. The sentencing framework is presented in a table format using multiple starting ranges depending on the weight of tobacco products involved (Yap Ah Lai at [46] and [57]):

Quantity of Tobacco Product (kg)

Sentencing Range (months)

2-50

3-6

51-100

6-12

101-200

12-18

201-300

18-24

301-400

24-30

>400

30-36



55     The sentencing framework was endorsed by the High Court in Syed Fathuddin Putra bin Syed A Rahman v Public Prosecutor and another appeal [2024] 3 SLR 1672 (“Syed Fathuddin Putra”). In affirming that the Yap Ah Lai framework should govern the specified offences in ss 128D to 128I of the Customs Act punishable under s 128L(4), the High Court recognised that the specific offences also targeted the same twin evils of revenue-loss prevention to the Government and reduction of harmful goods consumption, and formed the core activities of the smuggling chain involving uncustomed harmful goods. The High Court further clarified that the types of offending acts in the smuggling chain for various scenarios under ss 128D to 128I of the Customs Act should not have a serious bearing on the analysis for significant differentiation of culpabilities between two offenders. Beyond looking at the step in the chain which the offender was charged with performing, the culpability of offenders may be distinguished by examining such other factors as further involvement in owning, managing or controlling the smuggling enterprise (at [49]-[50]).

56     The High Court in Syed Fathuddin Putra at [53] identified four key factors cited in Yap Ah Lai (at [29]-[32]) as relevant to the sentencing of offences under the Customs Act:

(a)     the quantity of tobacco products imported (the primary factor in determining the length of sentence as reflected in the benchmark sentencing ranges);

(b)     the repetition of the offence;

(c)     whether the offender acted on his own or was involved in a syndicated operation; and

(d)     the extent of the offender’s role in the smuggling enterprise (such as the level of ownership, management, control and responsibility in the hierarchy of a smuggling syndicate).

The High Court further considered such other sentencing factors as the impact and timeliness of the offender’s guilty plea and the age of the offender, as well as the sentencing benchmark ranges in Yap Ah Lai, in determining that the sentences imposed were not manifestly excessive.

57     It is noteworthy that the High Court in Syed Fathuddin Putra observed at [48] that as the application of the Yap Ah Lai Framework is premised on the assumption that the offender’s role in the smuggling chain is limited purely to the physical act which is the subject of the charge (where only one offending act of the specific offence is present), where the offender undertook a broader role in the smuggling operation by being involved at multiple points and in offences in the smuggling chain, eg. importing, loading and unloading, and storge of duty unpaid cigarettes), it would be appropriate to consider whether these other acts are reflected in separate charges proceeded with or taken into consideration for the purpose of sentencing. Where this is not the case, it would be appropriate to consider the enhanced role of the offender as an aggravating factor justifying a sentence that is more severe.

58     Applying these factors and the Yap Ah Lai sentencing benchmark ranges to the present case, the indicative starting range for the excise duty charge is three to six months’ imprisonment for 36.300 kg of duty unpaid cigarettes.

59     Apart from storing the tobacco products, the accused assisted the supplier in repacking the cigarettes into smaller quantities, as well as in the delivery of the cigarettes and collection of the sale proceeds from the customers.[note: 21] The enhanced role of the accused thus warrants a more severe sentence.

60     Equally aggravating is the fact that the accused received pecuniary benefits for his role. He received payment for his involvement in storing and delivering the tobacco products. He also retained some of the duty unpaid cigarettes for his personal consumption, as well as for the purpose of reselling these for profit. The culpability of the accused was heightened by the fact that he reoffended after committing the offence in relation to the VCH charge, and while he was on bail and during the trial for the offence of outrage of modesty. Simply put, the accused had reoffended on several occasions. The accused demonstrated recalcitrance and a lack of remorse for his conduct.

61     Having regard to the principle of parity in sentencing, the status of the co-accused, Wang, is equally relevant (see Public Prosecutor v Ramlee [1998] 3 SLR(R) 95). She pleaded guilty and consented to similar charges as the accused to be taken into consideration as the accused. She was sentenced to 11 weeks’ imprisonment.[note: 22] As rightly pointed out by the prosecution, the level of culpability of the accused is higher with his greater involvement in a syndicated operation.[note: 23] Co-offenders in a common criminal enterprise who are of greater culpability should generally be more severely punished (Chong Han Rui v Public Prosecutor [2016] SGHC 25 at [1]).

62     While the accused has pleaded guilty to the Customs charge, this must be viewed in the factual context of the accused being caught red-handed with the illegal tobacco products in the unit where he resided with the co-accused, Wang. His plea of guilt is attenuated in its mitigating value.

63     An appropriate sentence is one of five months’ imprisonment.

64     Having determined the appropriate individual sentences, I consider it appropriate to run all the sentences consecutively to give effect to the separate and distinct legally protected interests: see PP v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen Balakrishnan”) at [41]-[47].[note: 24] The aggregate sentence would be one of 45 months’ imprisonment.

65     While the defence has applied the established sentencing frameworks, the proposed uplifts in the sentences are not aligned with reality by reason of the failure to consider the aggravating fact of the accused person’s repeated reoffending while he was released on bail and during the trial for the present offence of outrage of modesty. The VCH charge involved an act of reoffending by the accused, while the Customs charge constituted further offending subsequent to the VCH offence. Punishing the accused less severely for the subsequent offending will be a “perverse outcome that flies in the face of any notion of justice” (Raveen Balakrishnan at [46]). The fact that the second or further offence was committed on bail would ordinarily have been an offence-specific aggravating factor. As an offender-specific aggravating factor, the fact that the accused committed these subsequent offences while he was facing trial for the present case reveals a lack of remorse and serves to amplify his level of culpability. It bears emphasis that in determining the appropriate sentence, the particular factual matrix in each case must be thoroughly considered (GBR at [38]).

66     Having regard to the totality principle, I re-calibrate the individual sentences to ensure that the aggregate sentence is one that is just and proportionate (Lim Seng Soon v Public Prosecutor [2015] 1 SLR 1195 at [40] and [43]; see also Pram Nair v Public Prosecutor [2017] 2 SLR 1015 at [171] and Chong Kum Heng v Public Prosecutor [2020] 4 SLR 1056 at [77]) as follows:

Likely imprisonment sentence

Offence date

Charge

Likely sentence

22 June 2020

S 354(2) of the Penal Code (Cap 224)

31 months’ imprisonment

24 September 2022

VCH charge

7 months’ imprisonment

15 June 2023

Customs charge

4 months’ imprisonment



The aggregate sentence is a term of 42 months’ imprisonment.

67     The Mandatory Aftercare Scheme (‘MAS’) applies if the accused were to sentenced to regular imprisonment. However, I note that the accused’s eligibility for MAS is a neutral factor. It bears noting that the present offences were committed while the accused was placed on the MAS scheme. He had breached the conditions attendant to the scheme.

68     I next consider whether corrective training and preventive detention would be unduly disproportionate.

Issue of proportionality

69     In Sim Yeow Kee at [97]-[98], the court stated that the imposition of a corrective training sentence should be subject to the principle of proportionality. However, the test of proportionality is applied less rigorously in the consideration of preventive detention as a form of punishment, but is no less relevant. Similarly, in Kamis v Public Prosecutor [2024] 3 SLR 1713 (“Kamis”) at [46], the court emphatically stated that the consideration of proportionality, while attenuated in the context of preventive detention, should not be wholly ignored. Notably, the regimes of corrective training and preventive detention are distinct sentencing options that are underpinned by different objectives and rationales. The operative justification for corrective training is specific deterrence and the reformation of the offender (Sim Yeow Kee at [98]). As expressly provided in s 304 (2) of the CPC, the overarching principle governing preventive detention is the need to protect the public. With public interest as the central tenet of the principle, where a habitual offender whose situation does not admit of the possibility of his reform, and thereby constituting a menace to the public, a sentence of preventive detention would be imposed on him for a substantial period of time in order to protect the public (PP v Rosli bin Yassin [2013] 2 SLR 831 (“Rosli”) at [17]). In Rosli, the court reiterated that the sentence of preventive detention is meant essentially for habitual offenders whom the court considers to be beyond redemption and too recalcitrant for reformation (Rosli at [17] citing Public Prosecutor v Wong Wing Hung [1999] 3 SLR(R) 304 at [10]). The totality of the offender’s previous convictions is relevant in determining whether preventive detention is appropriate (Rosli at [17] citing Tan Ngin Hai v Public Prosecutor [2001] 2 SLR(R) 152 at [7]).

70     In Rosli, the offender pleaded guilty to eight charges involving various counts of cheating with common intention, theft, criminal breach of trust, abetment of forgery and culpable homicide not amounting to murder. He consented to another 11 charges being taken into consideration for the purpose of sentencing. The offender was traced with numerous property-related criminal antecedents. In allowing the prosecution’s appeal and enhancing the sentence of 12 year’s preventive detention to a term of 20 years, the Court of Appeal noted that the offender had demonstrated a clear pattern of chronic recidivism.[note: 25] Among his previous punishments was a prior term of eight years’ preventive detention that had little (if any) rehabilitative effect on him. The Court of Appeal found troubling that the offender’s hitherto non-violent conduct had escalated to the most egregious crime of taking of a human life. The offender was assessed to be at a high risk of re-offending, given his lack of remorse, supportive social network and a fixed abode, as well as marketable skills (Rosli at [25]-[29]).

71     In Kamis bin Basir v Public Prosecutor [2024] 3 SLR 1713 (“Kamis”), the 54-year old offender was previously sentenced to two stints of corrective training of seven years and eight years for property offences in 2005 and 2013 respectively, as well as a lengthy imprisonment of five years and six months for a drug consumption offence in 2000. Despite having received caning for those offences, the offender was not deterred in his reoffending. In affirming the sentence of ten years of preventive detention, the appellate court noted that the two stints of corrective training did not seem to have any rehabilitative effect on the offender.

72     In Ow Gan Wee v Public Prosecutor [2023] SGHC 135 (“Ow Gan Wee”), the 51- year old offender appealed against the sentence of eight years’ preventive detention. He pleaded guilty to two charges of theft under s 379 of the Penal Code (Cap 224, 2008 Rev Ed) and s 379 of the Penal Code 1871 (2020 Rev Ed), one charge of drug possession under s 8(a) of the Misuse of Drugs Act 1973 (2020 Rev Ed). The offender was previously sentenced to two stints of corrective training and multiple terms of imprisonment. He re-offended shortly after his release on each occasion. In imposing preventive detention, the appellant court was mindful of the offender’s lack of remorse despite being given numerous opportunities to “realise the error of his ways”.[note: 26]

73     While the principle of proportionality was held to apply less rigorously where the imposition of preventive detention is concerned (see Sim Yeow Kee at [97]), the court in Kamis at [46] reiterated that “considerations of proportionality, whilst attenuated in the context of preventive detention, should not be wholly ignored”. As a point of illustration, the court cited the case of Tan Ngin Hai v Public Prosecutor [2001] 2 SLR(R) 152, where the sentence of eight years’ preventive detention imposed on the offender for theft of $1.10 from a van was found to be wholly disproportionate to the offence: Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 at [77] citing Sim Yeow Kee at [97].

Corrective training as an appropriate form of punishment

74     The accused presented with a long history of offending. Of significance are the antecedents involving sexual offences, namely, his rape and carnal connection convictions. The commonality of these antecedents and the present offence is the modus operandi adopted by the accused in the commission of the offences, and the specific class of victims he targeted, namely, young and adolescent females. The present conviction for an offence of outrage of modesty must be viewed in the context of the repeated nature of the accused’s offending…these added the layered recalcitrance of a repeat offender who lacked contrition, notwithstanding the lengthy terms of imprisonment.

75     According to the pre-sentencing report for corrective training and/or preventive detention (“PSR”), on the general risk of criminal recidivism, the accused is placed on the moderate-high risk/need level of criminal re-offending. Specifically, the accused is assessed to have a high risk of reoffending with sexual and violence offences.[note: 27] In particular, the accused person’s preference for underaged victims was highlighted in the PSR. This is amply demonstrated by the accused present offending and prior convictions involving young and adolescent female victims.

76     I find particularly troubling the lack of remorse and insight displayed by the accused despite his lengthy periods of imprisonment. As observed in the PSR, the accused categorically maintained his denial of his convictions relating to sexual offences including the present offence. The PSR reinforces the view that the accused has failed to gain insight into his criminal conduct and lacked the resolve to break away from the vicious cycle of criminality. By his persistent denial of guilt, the accused refused to accept responsibility for his offences and found justification for his use of violence. The accused person’s habitual use of violence and association with peers of negative influence were well documented in the PSR. Notably, the accused did not challenge the findings of the report.

77     The accused is a constant malevolent presence in the community. A culture of manipulation permeated his engagement with adolescents, as seen from his grooming of the victims in his sexual offences. As highlighted in the PSR, the accused exhibited a pattern of seeking victims who were amenable to his influence and on whom he could exert some psychological coercion.[note: 28] This was borne out by the accused person’s act of persuading the victim in the present outrage of modesty case to bring her hamster to the pet shop, and allowing her to play with his hamsters. Immediately after the incident, the accused even tried to coerce the victim to remain a while longer in the pet shop.

78     It is patent from the report that the effects of protracted incarceration in terms of imprisonment were markedly lost on the accused. The accused was not deterred from reoffending in less than two years from his last release from prisons for sexual offences involving rape and carnal connection. The key findings in the report cement the view that a sentence of imprisonment is not a viable form of punishment.

79     While there appears to be a limited prospect of rehabilitation, the option for reformation should not be foreclosed. It is noteworthy that the PSR recognised the potential in the willingness of the accused to engage in his church activities as a positive source of support and protection that would mitigate his risk of reoffending.[note: 29] The report noted that his previous employment with the church was an indication of his motivation to engage in a prosocial lifestyle.[note: 30]

80     I do not agree with the prosecution that seven years’ preventive detention is an appropriate sentence in the present case.[note: 31] Neither am I persuaded by the prosecution’s argument that reformation is not a realistic prospect for the accused.[note: 32]

81     While the technical requirements for preventive detention are met in the present case, preventive detention of a length of the prescribed statutory minimum of seven years would have been unduly disproportionate, on account of the likely regular imprisonment term of 42 months which would be imposed for the underlying offences (see [ 66 ] ).

82     Conversely, a five-year corrective training sentence would not be unduly disproportionate to the 42- month term of regular imprisonment term that would otherwise have been imposed on the accused, and is not manifestly excessive , given the extent of his criminal record and the need for him to be specifically deterred.

83     Notably, the offenders in Rosli, Ow Gan Wee and Kamis were afforded numerous opportunities by the criminal justice system to be reformed. The imposition of preventive detention came after multiple stints of corrective training and lengthy imprisonment terms that failed to deter the offenders from reoffending.

84     I note that the prosecution did not sufficiently address the appropriateness of corrective training. The prosecution’s written submissions are silent on why corrective training should not be imposed. According to the prosecution, the facts suggested that the accused is not inclined to reform or rehabilitation. The prosecution argues that the protection of the public is the foremost consideration, given that rehabilitation is not a realistic prospect, and maintains that preventive detention is to be preferred over corrective training.

85     The defence did not direct its mind to the findings in the PSR, save for the submission that the report does not deal with the consideration of proportionality. Neither did the defence dispute the findings and opinion of the psychologist in the pre-sentencing report.

86     Ultimately, it is for the court to determine the consideration of proportionality. The pre-sentence report affords insights of a constructive nature. However, the defence elected not to address the findings and opinion of the senior principal psychologist. The non-committal of the defence defeated the objective of the pre-sentence report.

Conclusion

87     For these reasons, I am fortified in my view that the interests of specific deterrence and reformation warrant the imposition of corrective training.

88     Finally, I thank the parties for their assistance in this matter.

[note: 1]See Pre-sentencing report for a corrective training (“CT”) and/or preventive detention (“PD”) dated 18 April 2024

[note: 2]See Criminal Records

[note: 3]See Statement of Facts dated 5 January 2024

[note: 4]Prosecution’s submissions for preventive detention (“PD”)

[note: 5]Prosecution’s submissions for PD at [18]

[note: 6]Prosecution’s further oral submissions, NE Day 14 (12 June 2024), p 14, lines 16-20

[note: 7]Defence sentencing submissions and plea in mitigation (19 January 2024) at [9]

[note: 8]See GBR at [27]-[30]

[note: 9]See GBR at [39]

[note: 10]See GBR at [40]

[note: 11]See GBR at [31]

[note: 12]See also Prosecution’s BOA, Tab 21

[note: 13]Prosecution’s submissions for a CT and PD suitability report at [18]-[19]

[note: 14]Prosecution’s submissions for a CT and PD suitability report at [20]; see also Prosecution’s BOA, Tab 22

[note: 15]Prosecution’s submissions for a CT and PD suitability report at [21]

[note: 16]Prosecution’s submissions for a CT and PD suitability report at [15] and [23]

[note: 17]See Niranjan at [63]

[note: 18]See medical report from Woodlands Polyclinc dated 25 October 2022

[note: 19]Prosecution’s submissions for a CT and PD suitability report at [27]; see also Prosecution’s bundle of authorities on sentence (“BOA”), Tab 18

[note: 20]Prosecution’s BOA, Tab 19

[note: 21]Statement of Facts dated 19 February 2024 at [5]

[note: 22]Prosecution’s submissions for a CT and PD suitability report at [35]; see also Prosecution’s BOA, Tab 15.

[note: 23]Prosecution’s submissions for a CT and PD suitability report, p 14

[note: 24]See also Prosecution’s submissions for a CT and PT suitability report at [36]-[37]

[note: 25]See Rosli at [24]

[note: 26]See Ow Gan Wee at [9]

[note: 27]See PSR, Part VIII, pp 9-10

[note: 28]See PSR, Part VI, p 9

[note: 29]See PSR, Part VIII, p 10

[note: 30]See PSR, Part VII, p 9

[note: 31]Prosecution’s submissions for PD at [19]-[22]

[note: 32]Prosecution’s submissions for PD at [9]-[18]

"},{"tags":["Tort – Negligence – Damages"],"date":"2024-10-30","court":"District Court","case-number":"District Court Originating Claim No 433 of 2022, District Court Appeal No 21 of 2024","title":"Tan Yu Hong v Lek Meng Peau","citation":"[2024] SGDC 278","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32435-SSP.xml","counsel":["R Magendran (Arasan Law Chambers) for the Claimant","Shahira Binte Mohd Anuar (Securus Legal LLC) for the Defendant."],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Tan Yu Hong v Lek Meng Peau

Tan Yu Hong v Lek Meng Peau
[2024] SGDC 278

Case Number:District Court Originating Claim No 433 of 2022, District Court Appeal No 21 of 2024
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: Samuel Wee
Counsel Name(s): R Magendran (Arasan Law Chambers) for the Claimant; Shahira Binte Mohd Anuar (Securus Legal LLC) for the Defendant.
Parties: Tan Yu Hong — Lek Meng Peau

Tort – Negligence – Damages

30 October 2024

District Judge Samuel Wee:

Introduction

1       In September 2019, the Claimant fell inside a public bus (“Bus”) and suffered injuries. The incident occurred due to an abrupt encroachment by the Defendant’s car into the Bus’s lane, which caused the driver of the Bus to brake suddenly and the Claimant to be flung to the floor of the Bus.[note: 1]

2       The Claimant suffered injuries to his lower back, cervical spine and left shoulder.[note: 2] He underwent treatment in end-September 2019 in the form of radiofrequency ablation of facet nerves C3/4, C4/5. C5/6 and C6/7 and radiofrequency neurolysis of left C5 nerve (“Sep 2019 Treatment”).[note: 3] While the pain in his lower back and cervical spine resolved,[note: 4] the pain and discomfort in his left shoulder persisted.[note: 5] The injury to his left shoulder was a posterior labral tear with a paralabral cyst (“Left Shoulder Injury”),[note: 6] for which he had deferred surgery (“Left Shoulder Surgery”).

3       He commenced this action against the Defendant based on the tort of negligence vis-à-vis the manner in which the Defendant drove, and sought the following:[note: 7]

(a)     General damages for pain and suffering in respect of the injuries to his lower back, cervical spine and left shoulder.

(b)     General damages for future medical expenses for the Left Shoulder Surgery.

(c)     General damages for loss of income for the period that he would be unable to work after undergoing the Left Shoulder Injury (“LOI”).

(d)     General damages for loss of earning capacity (“LEC”).

(e)     Special damages for medical expenses and transport expenses.

4       Prior to the commencement of trial, the parties reached an agreement on several issues that helped narrow the scope of the dispute.[note: 8]

(a)     First, parties agreed that the Defendant was 90% responsible for the accident. This meant that:

(i)       The parties were not disputing the existence and breach of a duty of care by the Defendant, which are two of the four elements required to establish liability under the tort of negligence (Crapper Ian Anthony v Salmizan bin Abdullah [2024] 1 SLR 768 at [48]).

(ii)       If the remaining two elements of liability are subsequently established (ie. causation and remoteness) and the Defendant was found to be negligent, the Claimant would be contributorily negligent to the extent of 10%. In this regard, it should be emphasised that contributory negligence is a defence that only arises after the Claimant discharges his burden of proving all four elements to establish liability.

(b)     Second, parties agreed to the following quantum on a 100% basis:

(i)       General damages for pain and suffering: $35,000.

(ii)       Special damages for medical expenses and transport expenses: $6,077.48 and $232.60 respectively.

5       Consequently, the intended focus of the trial was on the residual issues of causation and remoteness, and the quantification of general damages for: (a) future medical expenses; (b) LOI; and (c) LEC. Nevertheless, it became apparent that the Defendant was not actually challenging causation and remoteness, and the matter involved the quantification of general damages.[note: 9]

Decision

6       At the outset, I set out the sums awarded in the following table (which also summarises the amounts sought by the parties):

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General damages – future medical expenses

7       The crux of the issue was whether the Claimant should be entitled to future medical expenses surrounding the Left Shoulder Injury as he had deferred and was hesitant to undergo the surgery. The Claimant’s hesitancy arose from concerns over a possible adverse reaction to anaesthesia required for the surgery,[note: 10] as he previously had a bad reaction to anesthesia – he had been unable to move the muscles below his neck due to generalised dystonia related to the anaesthetic medication administered for the Sep 2019 Treatment.[note: 11]

8       The Claimant took the position that he should be entitled to future medical expenses as he was, despite his hesitancy, prepared to undergo the Left Shoulder Surgery if the condition worsened.[note: 12] The Claimant presented his claim as a range with an upper limit of $105,500 that comprised the following:[note: 13]

(a)     $40,000 to $95,000 in medical expenses for the Left Shoulder Surgery.[note: 14] This included $40,000 to $45,000 for the Left Shoulder Surgery itself, and a further $50,000 as a buffer if the surgery became complicated due to the risk of generalised dystonia.

(b)     $1,800 for 10 to 12 physiotherapy sessions.[note: 15]

(c)     $5,700 for magnetic resonance imaging (“MRI”) scans to monitor his condition until the Left Shoulder Surgery is performed.[note: 16]

(d)     $2,400 to $3,000 for medication until the Left Shoulder Surgery is performed.[note: 17]

9       The Defendant contended that the Claimant should not be awarded future medical expenses because of the low possibility that he will undergo the Left Shoulder Surgery, due to the risk of generalised dystonia that the Claimant may suffer.[note: 18]

10     The law is clear that future medical expenses can be claimed where there is an appreciable risk that the victim will suffer that loss (Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) at [65] and [72]-[73]).

11     Both the Claimant’s medical expert Dr Henry Chan Ying Ho (“Dr Chan”) and the Defendant’s medical expert Dr Chang Wei Chun (“Dr Chang”) agreed that the Claimant’s present condition was sufficient to require surgery in the form of a left shoulder arthroscopic decompression of the paralabral cyst and labral repair (ie. the Left Shoulder Surgery).[note: 19] However, as the Left Shoulder Surgery required anaesthesia, both Dr Chan and Dr Chang suggested the possibility of deferring the surgery for the time being.

(a)     Dr Chan offered to perform the Left Shoulder Surgery from as early as October 2020.[note: 20] However, due to the risks of generalised dystonia confronting the Claimant when anaesthesia is administered, Dr Chan continued to propose the more conservative option of monitoring the Claimant’s condition and deferring the surgery.[note: 21] The monitoring involved undergoing regular MRI scans to observe the size and growth of the cyst.[note: 22]

(b)     Dr Chang gave evidence that the Left Shoulder Surgery could be performed if the Claimant wished, but that it was also reasonable to adopt the conservative option of monitoring the situation until such time when the Claimant’s pain was “bad enough”.[note: 23]

12     As far as the Claimant was concerned, he remained prepared to undergo the Left Shoulder Surgery if his condition worsened, such that he lost sensation in his left arm and had no other options (which he referred to as a “life-threatening issue”).[note: 24] However, as the cyst in the Claimant’s left shoulder had not yet reached a size that would cause him to lose sensation in his left arm, he had deferred the Left Shoulder Surgery and adopted the conservative treatment proposed.[note: 25]

13     That said, the evidence from the medical experts showed that the cyst had grown over time and continued to pose a risk of growing bigger;[note: 26] and that it remained possible for the Claimant to lose the range of motion and sensation in his left arm. In this regard, I found the evidence from the Claimant’s medical expert Dr Chan’s to be particularly of assistance, as Dr Chan confirmed the possibility that the cyst would “cause weakness because of the compression of the nerve” and “cause pain and pressure effect when [the Claimant] lift[s] up the shoulder”.[note: 27] Dr Chan’s evidence came from the perspective of the doctor who treated the Claimant and had first-hand knowledge of the Claimant’s condition, and there was no reason for me to doubt the same. Further, the Defendant’s medical expert Dr Chang accepted that “there may be pain and immobility” if the cyst grew bigger,[note: 28] and did not actually contradict Dr Chan’s view.

14     Consequently, I found that there was an appreciable risk that the Claimant would undergo the Left Shoulder Surgery and awarded $45,000 for the future medical expenses for the surgery. This figure was based on the evidence from the Claimant’s medical expert Dr Chan showing that the Left Shoulder Surgery would cost around $40,000 to $45,000 (excluding GST).[note: 29] To this end, I disagreed with the Claimant that there should be an additional award of $50,000 as a buffer if the surgery became complicated due to the risk of generalised dystonia as there was insufficient evidence to support such an award.

15     Further, I disagreed with the Defendant’s belated argument that the award should be discounted by 50% because of the uncertainties surrounding whether the Claimant would have to undergo the Left Shoulder Surgery (Lua Bee Kiang at [72]-[73]). This argument was not raised by the Defendant in his Closing Submissions, and was raised belatedly by the Defendant’s counsel as a “further argument” after I had issued my oral judgment on 7 October 2024.[note: 30] In line with TG Master Pte Ltd v Tung Kee Development (Singapore) Pte Ltd and another [2023] SGHC 64 at [2], [24] and [50], it is doubtful that that “further arguments” could be entertained after I had delivered my oral judgment that arose from a trial. In any event, the Defendant’s counsel merely proposed the 50% discount without any explanation of how the percentage was derived, and she did not raise any arguments that would have helped the Court determine the discount “with sympathy and with fairness for the interest of all concerned and at all times with a sense of proportion” and to ensure that the Claimant received a fair compensation (Lua Bee Kiang at [72] and [80]).

16     Turning to the other aspects of the Claimant’s claim for future medical expenses, I found that the Claimant was also entitled to future expenses for 10 physiotherapy sessions at $85 per session and awarded $850 (ie. $85 x 10 sessions). This finding was based on the evidence from the Defendant’s medical expert Dr Chang, who indicated that 10 to 12 physiotherapy sessions would be required post-surgery, and that each session would cost about $85.[note: 31]This award was a reduction from the $1,800 sought by the Claimant.

17     However, I disallowed the Claimant’s claim for damages for the anticipated expenses for MRI scans and medication that would have to be incurred whilst he continues to defer the Left Shoulder Surgery. I did not find justification for the Defendant to be responsible for such expenses when it was the Claimant who opted to defer the Left Shoulder Surgery, even though the surgery could have already been performed based on his prevailing condition.

General damages – LOI

18     The Claimant sought $20,000 in LOI for the period that he would be unable to work after undergoing the Surgery.[note: 32] The period was estimated to be 4 months, and the amount tabulated based on a monthly income of $5,000.

19     I disallowed this claim as the Claimant had in his Closing Submissions conceded that no evidence was adduced of his alleged income of $5,000;[note: 33] and there was no evidence showing how the 4 months was derived.

General damages – LEC

20     The Claimant sought $20,000 in LEC on the basis that he was “unable to climb cat-ladders that are too high in his job due to the injuries and also unable to lift heavy items”[note: 34] and “If the Claimant loses the strength or the use of his left hand due to his injuries, he will be handicapped and he needs to be compensated due to his injuries”.[note: 35]

21     LEC relates to the victim’s competitive disadvantage in the open labour market because of the injuries he suffered. As the Claimant was employed,[note: 36] he had to show that: (a) there was a substantial or real risk that he could lose his present job at some time before the end of his working life; and (b) that he would be at a disadvantage in the open employment market because of the injuries (Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 at [36]).

22     I disallowed this claim as the Claimant did not address or establish either of the requisite elements, and merely invited the Court to adopt a “rough and ready approach” to award the LEC.[note: 37]

Conclusion

23     As reflected in the table at [6] above, the total amount of damages on a 100% basis was $87,160.08, comprising $80,850 in general damages and $6,310.08 in special damages.

24     In line with the parties’ agreement that the Defendant was 90% responsible for the accident (see [4(a)] above), I awarded damages of $78,444.07 to the Claimant, comprising $72,765 in general damages and $5,679.07 in special damages.

25     Interest was fixed at 5.33% p.a. on general damages from the date of the Originating Claim to judgment; and 2.67% p.a. on special damages from the date of the accident to judgment.

26     I also fixed costs payable by the Defendant to the Claimant at $14,000. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

[note: 1]Statement of Claim (“SOC”)_[3]-[7]; Affidavit of evidence-in-chief of Tan Yu Hong (“CMAEIC”)_[4].

[note: 2]3CBD_5 (Dr Chan’s Report dated 13 January 2020); 3CBD_16 (Dr Chang’s Report dated 28 April 2023).

[note: 3]3CBD_5 (Dr Chan’s Report dated 13 January 2020).

[note: 4]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_13, 16 (Dr Chang’s Report dated 28 April 2023).

[note: 5]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_13 (Dr Chang’s Report).

[note: 6]3CBD_9 (Dr Chan’s Report dated 17 April 2024); 3CBD_16 (Dr Chang’s Report); 2TRANS_PDF10:1-13.

[note: 7]Claimant’s Opening Statement (“CMOpening”)_PDF3-6; Claimant’s Closing Submissions (“CMClosingSubs”)_[2].

[note: 8]CMClosingSubs_[3]; Defendant’s Closing Submissions (“DFClosingSubs”)_[3]-[4].

[note: 9]See DFClosingSubs.

[note: 10]CMAEIC_[17]; 1TRANS_PDF8:14-19. *[Day of Trial]TRANS_[PDF Page Number]:[Lines in Transcript]

[note: 11]CMAEIC_[13]-[15]; 3CBD_7; 2TRANS_PDF8:5-PDF9:2; 2TRANS_PDF21:1-20.

[note: 12]CMClosingSubs_[10], [22]-[24], [32]-[35].

[note: 13]CMClosingSubs_[45].

[note: 14]CMClosingSubs_[36].

[note: 15]CMClosingSubs_[38].

[note: 16]CMClosingSubs_[39].

[note: 17]CMClosingSubs_[40].

[note: 18]DFClosingSubs_[20].

[note: 19]3CBD_6 (Dr Chan’s Report dated 19 October 2020); CBD_7 (Dr Chan’s Report dated 6 February 2021); 3CBD_9 (Dr Chan’s Report dated 17 April 2024); 2TRANS_PDF10:14-21; 2TRANS_PDF20:3-17.

[note: 20]3CBD_6 (Dr Chan’s Report dated 19 October 2020).

[note: 21]2TRANS_PDF12:1-20.

[note: 22]3CBD_9 (Dr Chan’s Report dated 17 April 2024).

[note: 23]2TRANS_PDF20:3-17.

[note: 24]1TRANS_PDF8:23-PDF9:22, PDF13:1-14.

[note: 25]1TRANS_PDF12:5-PDF13:7.

[note: 26]2TRANS_PDF13:17-PDF14:2, PDF15:9-19; 2TRANS_PDF20:3-17, PDF23:15-PDF24:11.

[note: 27]2TRANS_PDF13:17-PDF14:2.

[note: 28]2TRANS_PDF23:3-PDF24:11.

[note: 29]3CBD_9 (Dr Chan’s Report dated 17 April 2024).

[note: 30]Notes of Evidence for the hearing on 7 October 2024 at pages 5 to 6.

[note: 31]3CBD_18 (Dr Chang’s Report dated 13 May 2024).

[note: 32]CMClosingSubs_[41].

[note: 33]CMClosingSubs_[41].

[note: 34]CMClosingSubs_[42].

[note: 35]Claimant’s Reply Submissions (“CMReplySubs”)_[2].

[note: 36]1TRANS_PDF12:9-18.

[note: 37]CMClosingSubs_[42]-[44]; CMReplySubs_[1]-[4].

"},{"tags":["Criminal Law – Statutory offences – Misuse of Drugs Act – Mistaken delivery defence – Consumption defence","Criminal Procedure and Sentencing – Sentencing – Drug trafficking – Drug possession – Drug consumption"],"date":"2024-10-11","court":"District Court","case-number":"District Arrest Case No 924431 of 2019 and 12 Others, Magistrate's Appeals No 9203 of 2024-01","title":"Public Prosecutor v Abdullah Bin Mohammad Kunhi","citation":"[2024] SGDC 264","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32318-SSP.xml","counsel":["Koh Yi Wen (Attorney-General's Chambers) for the Public Prosecutor","Prakash Otharam (Kalidass Law Corporation) for the Accused."],"timestamp":"2024-11-12T16:00:00Z[GMT]","coram":"Paul Chan","html":"Public Prosecutor v Abdullah Bin Mohammad Kunhi

Public Prosecutor v Abdullah Bin Mohammad Kunhi
[2024] SGDC 264

Case Number:District Arrest Case No 924431 of 2019 and 12 Others, Magistrate's Appeals No 9203 of 2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Paul Chan
Counsel Name(s): Koh Yi Wen (Attorney-General's Chambers) for the Public Prosecutor; Prakash Otharam (Kalidass Law Corporation) for the Accused.
Parties: Public Prosecutor — Abdullah Bin Mohammad Kunhi

Criminal Law – Statutory offences – Misuse of Drugs Act – Mistaken delivery defence – Consumption defence

Criminal Procedure and Sentencing – Sentencing – Drug trafficking – Drug possession – Drug consumption

11 October 2024

Judgment reserved.

District Judge Paul Chan:

1       In the present case, the Prosecution initially preferred 13 charges against the accused, Mr Abdullah Bin Mohammad Kunhi. During the pre-trial stage, one charge was withdrawn. The Prosecution then elected to proceed on five charges first, with the other charges stood down pending the resolution of the five charges. The following five drug-related charges therefore formed the subject matter of the trial before this court.

(a)     possession of not less than 249.99 grams of methamphetamine (the “Methamphetamine Possession Charge”);

(b)     trafficking of not less than 15.01 grams of MDMA (the “MDMA Trafficking Charge”);

(c)     possession of not less than 0.35 grams of diamorphine (the “Diamorphine Possession Charge”);

(d)     possession of tetrahydrocannabinol (the “THC Possession Charge”); and

(e)     possession of drug utensils (the “Drug Utensils Charge”).

2       During his examination-in-chief in the course of trial, the accused confirmed that he was only disputing three of the five proceeded charges, namely the Methamphetamine Possession Charge, the MDMA Trafficking Charge and the Diamorphine Possession Charge.[note: 1] These charges arose from drugs that were recovered from two bundles that the accused had received from a co-accused person shortly before his arrest. The accused raised two key defences:

(a)     the drugs were delivered to the accused by mistake; and

(b)     the accused had ordered 100 tablets of MDMA for personal consumption and not for trafficking.

The resolution of the trial turned largely on whether these defences were made out on a balance of probabilities.

3       I found that there was indeed a reasonable doubt as to whether the drugs were meant for the accused. This was principally on account of evidence provided by a co-accused person that was highly probative of the fact that the drugs were wrongly delivered to the accused. In my judgment, the co-accused’s evidence was not materially damaged at trial. However, on the totality of the relevant evidence, I found that the accused failed to prove, on a balance of probabilities, that he had ordered 100 tablets of MDMA for personal consumption.

4       Flowing from the above findings, I made the following orders:

(a)     I acquitted the accused of the Methamphetamine Possession Charge and the Diamorphine Possession Charge.

(b)     I altered the MDMA Trafficking Charge to one for attempted MDMA trafficking and convicted the accused of the amended charge (the “Attempted MDMA Trafficking Charge”).

(c)     I convicted the accused of the THC Possession Charge and the Drug Utensils Charge.

5       Following the trial, the accused subsequently pleaded guilty to a further two charges. The first was for consumption of methamphetamine. The second was for possession of a sword otherwise than for a lawful purpose. He also consented to have another five charges taken into consideration for the purpose of sentencing. After considering the submissions made by parties, I ultimately sentenced the accused to an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane.

6       I now set out the reasons for my decisions.

The Charges

7       The charges that were the subject matter of trial were on the following terms.

The Methamphetamine Possession Charge

You…are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, two (2) packets containing a total of 372.4 grams of crystalline substance, which was analysed and found to contain not less than 249.99 grams of methamphetamine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The MDMA Trafficking Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did traffic in a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, by having in your possession one (1) packet containing one hundred (100) tablets weighing not less than 29.67 grams, which was analysed and found to contain not less than 15.01 grams of MDMA, for the purpose of trafficking, at the said place, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) MDA,

And further, that you, before the commission of the said offence, on 13 December 2010, in the District Court No. 19, in Singapore, vide DAC23780/2010, were convicted for an offence of trafficking in a controlled drug, to wit, methamphetamine, under s 5(1)(a) MDA, and were sentenced to 7 years’ imprisonment and 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you are thereby liable for enhanced punishment under s 33(4A)(i) MDA.

The Diamorphine Possession Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, one (1) packet containing not less than 11.80 grams of granular/powdery granular substance, which was analysed and found to contain not less than 0.35 gram of Diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The THC Possession Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”), to wit, one (1) packet containing not less than 0.93 gram of fragmented vegetable matter, which was analysed and found to contain tetrahydrocannabinol, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) MDA,

And further, that you, before the commission of the said offence, were on 13 December 2010, in District Court No. 19, vide DAC23782/2010, convicted of an offence for possession of a controlled drug, to wit, diamorphine, under s 8(a) MDA and sentenced to 3 years’ imprisonment, for which conviction and punishment have not been set aside to date, and you shall now be liable for enhanced punishment under s 33(1) MDA.

The Drug Utensils Charge

You… are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did have in your possession of utensils intended for the consumption of a controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, one (1) spoon, one (1) straw, one (1) improvised bottle, one (1) glass pipe, one (1) aluminium foil, four (4) cut straws, and three (3) lighters, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 9, which is punishable under s 33(1) MDA.

[Emphasis deleted.]

The undisputed facts

8       On 2 December 2019, Mr Jude Leslie Paul (the “co-accused”) entered Singapore from Malaysia through the Tuas Checkpoint on a motorcycle. He travelled thereafter to the vicinity of the carpark of Blk 4 Teck Whye Avenue, Singapore (the “Drop Off Point”).

9       At the Drop Off Point, the co-accused met with the accused. The co-accused stopped his motorcycle, removed a plastic bag from the storage box affixed to his motorcycle and handed the plastic bag to the accused. At the same time, the accused had intended to travel to a friend’s residence in Bukit Batok and, to that end, had a private hire car waiting for him. The accused took the plastic bag and immediately entered the private hire car. The private hire car then travelled to Bukit Batok West Avenue 5. The accused was arrested upon arrival at Bukit Batok.

10     While CNB officers were escorting the accused to a police vehicle, a bundle with red tape dropped from the accused’s body onto the floor. That bundle had the words “TAMIL 100-250” written in black on it. A further search of the accused was conducted whereupon the CNB officers recovered, amongst other things, a similar bundle with red tape. This bundle was marked “Tamil 125”.

11     The table below summarises the drugs found within these bundles. The results of the forensic analysis performed by the Health Sciences Authority were not challenged by the accused.

Exhibit description

Result of forensic analysis

CNB marking

Court marking

One bundle with red tape and marking “TAMIL 100-250” later found to contain:

 

B1

P3

Not less than 248.2 grams of crystalline/powdery substance

Substance contained not less than 166.8 grams of methamphetamine

B1A

P4

100 green tablets and not less than 11.80 grams of granular/powdery substance

Tablets contained not less than 15.01 grams for MDMA

Granular/powdery substance contained not less than 0.35 grams of diamorphine

B1B

P5

One bundle with red tape and marking “TAMIL 125” later found to contain:

 

B2

P6

Not less than 124.2 grams of crystalline substance

Substance contained not less than 83.88 grams of methamphetamine

B2A

P7



In this judgment, I adopt the CNB markings when references are made to the exhibits.

12     Photographs taken by CNB officers of these bundles and drugs may be seen below.

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13     In addition to the above exhibits, several other items were also seized from the accused’s possession. Amongst these items were the drug utensils listed in the Drug Utensils Charge as well as a packet of vegetable matter. This packet of vegetable matter was subsequently analysed and found to contain cannabinol and tetrahydrocannabinol.

The parties’ cases

The Prosecution’s case

14     The accused was first produced in court on 18 April 2019. The Prosecution’s case was that, after the accused was released on bail on 26 October 2019, he was active in dealing with controlled drugs. In particular, the accused placed an order for MDMA, methamphetamine and diamorphine with an unknown person going by the moniker “Boy”. Boy was also known to the accused as “Boy Taman” and “Tasha” and he resided in Malaysia. Pursuant to that order, the accused, at 5.11 am on 1 December 2019, transferred a total sum of $1,350 to Boy and arranged for the drugs to be delivered. In satisfaction of that order, the co-accused, at about 12:50 am on 3 December 2019, delivered a white plastic bag to the accused at the Drop Off Point. The white plastic bag contained B1, B1A, B1B, B2, B2A.

15     As regards the methamphetamine and diamorphine, the Prosecution submitted that the accused was in unauthorised possession of these drugs. The Prosecution sought to prove the element of possession. Insofar as the knowledge of the nature of the drug was concerned, the Prosecution relied on the presumption under section 18(2) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“MDA”).

16     As regards the MDMA, the Prosecution submitted that the accused had possessed the drugs for the purposes of trafficking. In this regard, the Prosecution sought to prove that the accused possessed the drugs and had knowledge of the nature of the drug. The Prosecution relied on the presumption of trafficking under section 17(i) of the MDA. Further, if the drugs were mistakenly delivered to the accused, the Prosecution argued that the accused should nevertheless be convicted of an amended charge for attempted trafficking of 100 MDMA tablets.

The Defence’s case

The accused’s evidence

17     The accused admitted that he ordered 100 tablets of MDMA from Boy on 30 November 2019 or 1 December 2019. However, he denied ordering methamphetamine and diamorphine. According to the accused, the two bundles that were delivered to him and all the drugs contained within were mistakenly delivered to him and that he was not the correct recipient of these bundles. He only saw that the plastic bag provided to him by the co-accused contained two packages - B1 and B2 - after he had entered the private hire car. He was surprised by this as 100 tablets “usually… doesn’t come in two packages”. [note: 2] The accused wanted to check the contents of the packages. However, he did not do so immediately as he knew that the bundles contained illegal items and he wanted to check the items in private. I shall call this the “Mistaken Delivery Defence”.

18     Further, the Defence argued that the 100 MDMA tablets that the accused ordered were meant for personal consumption. The accused would ordinarily consume two to five tablets a day, depending on the quality of the tablets. The tablets that the accused ordered was meant to be used for personal consumption over a period of about a month. I shall call this the “Consumption Defence”.

19     As mentioned earlier, the accused did not challenge the THC Possession Charge and the Drug Utensils Charge.

The co-accused’s evidence

20     According to the co-accused, he worked for an individual known to him as Dinesh. Pursuant to Dinesh’s instructions, the co-accused used a motorcycle belonging to Dinesh to enter Singapore from Malaysia. The co-accused was told to travel to a location and collect a sum of money. After the co-accused had collected this sum of money, Dinesh informed the co-accused to remove two bundles (namely, B1 and B2) which was hidden within the side cover of the motorcycle and deliver them to the Drop Off Point. Upon arrival, the co-accused called Dinesh whereupon the co-accused was instructed to hand over the plastic bag containing B1 and B2 to an individual wearing a red shirt. The co-accused handed B1 and B2 to the accused without speaking to the accused.

21     After leaving the location and when the co-accused was on the way back to Malaysia, Dinesh called the co-accused. Dinesh told the co-accused to return to the Drop Off Point where he had delivered B1 and B2, retrieve the bundles from the accused and deliver them to somebody else in Bukit Batok. The co-accused was arrested shortly thereafter.

Issues to be determined

22     Arising from the submissions made by the parties, the following issues arose for consideration.

Guilt

(a)     Whether the accused was not guilty of the Methamphetamine Possession Charge, the MDMA Trafficking Charge and the Diamorphine Possession Charge by reason of the fact that the relevant drugs were delivered to him by mistake.

(b)     If the accused was not guilty of the MDMA Trafficking Charge, whether the accused was also not guilty of the Attempted MDMA Trafficking Charge by reason of the fact that:

(i)       the primary offence was an impossibility in that the drugs that the accused received were not intended for him;

(ii)       any attempted possession was for the purpose of personal consumption, not trafficking; and

(iii)       the accused’s acts were insufficient to constitute an attempt.

(c)     Whether the Prosecution had proven the THC Possession Charge and the Drug Utensils Charge beyond reasonable doubt.

Sentence

(d)     What sentences should be imposed for each of the charges that the accused was convicted of?

(e)     What should the aggregate sentence be?

Issue 1: Whether drugs were mistakenly delivered

The applicable law

Burden of proof

23     It is necessary to begin with the law governing the burden of proof. The Prosecution always bears the legal burden of proving the charges against an offender beyond reasonable doubt. A reasonable doubt is one for which a reason can be given, so long as the reason given is logically connected to the evidence: Public Prosecutor v GCK [2020] 1 SLR 486 (at [131]). The legal burden does not shift throughout the trial. That said, in certain situations, the Prosecution may rely on statutory presumptions to satisfy this burden. Where this is so, the legal burden is on the offender to prove, on a balance of probabilities, the existence of facts to rebut the presumptions: Roshdi bin Abdullah Altway v Public Prosecutor and another matter [2022] 1 SLR 535 (at [72]-[73]).

Drug possession and trafficking

24     The Methamphetamine and Diamorphine Possession Charges were brought under section 8(a) of the MDA. This section provides:

Possession and consumption of controlled drugs

8.    Except as authorised by this Act, it shall be an offence for a person to –

(a)    have in his or her possession a controlled drug; or

…

25     The elements to be satisfied for a charge of drug possession under section 8(a) of the MDA are as follows: Sim Teck Ho v Public Prosecutor [2000] 2 SLR(R) 959 (“Sim Teck Ho”) (at [11]).

(a)     Possession of a controlled drug (which may be proved or presumed under section 18(1) of the MDA, or deemed under section 18(4) of the MDA (the “Possession Element”).

(b)     Knowledge of the nature of the drug (which may be proved or presumed under section 18(2) of the MDA) (the “Knowledge Element”).

26     The MDMA Trafficking Charge was brought under section 5(1)(a) read with section 5(2) of the MDA. This section provides:

Trafficking in controlled drugs

5. –(1)    Except as authorised by this Act, it shall be an offence for a person, on his or her own behalf or on behalf of any other person, whether or not that other person is in Singapore –

(a)    to traffic in a controlled drug;

…

(2)    For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he or she has in his or her possession that drug for the purpose of trafficking.

27     It is well established that the elements to be satisfied for a charge of possession for the purpose of trafficking under section 5(1)(a) read with section 5(2) of the MDA are as follows: Public Prosecutor v Yeo Liang Hou and another [2023] SGHC 157 (“Yeo Liang Hou”) (at [24]).

(a)     The Possession Element.

(b)     The Knowledge Element.

(c)     Possession of the controlled drug was for the purpose of trafficking which was not authorised.

The Mistaken Delivery Defence

28     If the Defence established the Mistaken Delivery Defence on a balance of probabilities, there was no question that the Knowledge Element, at the very least, would be disproved in respect of the Methamphetamine Possession Charge and the Diamorphine Possession Charge – the accused could not have known that B1 and B2 contained methamphetamine and diamorphine. There was, however, a question of how the Mistaken Delivery Defence, if correct, would affect the MDMA Trafficking Charge.

29     In this regard, the Prosecution took the position that, even if the Mistaken Delivery Defence was made out, it would neither disprove the Possession Element nor the Knowledge Element of the MDMA Trafficking Charge.[note: 3] It took this position for the following reasons.

(a)     The Possession Element comprised both a physical component and a knowledge component.

(i)       The physical component was made out as it was undisputed that the accused was in physical possession of the two bundles, namely B1 and B2.

(ii)       In order to satisfy the knowledge component, it must simply be proved that an offender is aware “of the thing that later turned out to be a drug”: Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (at [40]). In the present case, the accused admitted that he was aware of B1 and B2 when he was in the private hire car.

(b)     The Knowledge Element was made out as the accused had ordered and had expected to receive 100 tablets of MDMA. B1 contained, among other drugs, 100 tablets of MDMA.

30     In my judgment, the manner in which the Prosecution analysed the Knowledge Element was inconsistent with reality on the facts of the present case. The Prosecution’s Case had always been that B1 and B2 (and all the drugs contained within them) were intended for the same recipient.[note: 4] The Prosecution never took the position that the MDMA tablets were correctly delivered but the other drugs were wrongly delivered to the accused. Indeed, the evidence suggested that the Prosecution was right in taking this position. Both B1 and B2 were similarly packaged and marked and were secured by red tape with the word “Tamil” written on them. More significantly, the bag of drugs marked as “B1B” contained both MDMA and diamorphine, with the tablets and powdery substance intermingled: see [11] and [12], above. The evidence therefore suggested that it was intended that the MDMA, methamphetamine and diamorphine were all intended for the same individual.

31     Given this, it would be contrary to reality in the present case to analyse the MDMA Trafficking Charge as if the MDMA may be disaggregated from the rest of the drugs and treated independently. This the Prosecution did by arguing that the Knowledge Element was satisfied as long as the accused was aware that the two bundles contained MDMA, even if he did not know what else the bundles may contain. Furthermore, if the Mistaken Delivery Defence was satisfactorily established, this must logically mean that the accused could not have been aware of what B1 and B2 contained, including whether it contained 100 tablets of MDMA. While the accused did order 100 tablets of MDMA, the bundles he received were materially different from what he had expected to receive. At trial, the accused described himself as “surprised” when he discovered that he had received two bundles.[note: 5] In his police statements, he described himself as “shocked”.[note: 6] I was cognisant that the accused ventured in his police statements that the two bundles contained 100 MDMA tablets and vape accessories.[note: 7] However, this was, at best, a guess and a guess was insufficient. To satisfy the Knowledge Element, the Prosecution must show that the accused “has actual knowledge” or was “almost certain” of the nature of the drugs: Yeo Liang Hou (at [30]). If the Mistaken Delivery Defence was made out, this could not have been the case.

32     In my judgment, the MDMA Trafficking Charge could not succeed if the Mistaken Delivery Defence was proven on a balance of probabilities.

Application of the law

33     I now turn to consider the critical issue of whether the Mistaken Delivery Defence was made out on the facts. After considering the available evidence carefully, I was satisfied that there was a reasonable doubt as to whether the accused was the correct recipient of the drugs. This was so for the following reasons.

34     To begin with, there was no objective evidence regarding the precise order that the accused placed with Boy as this was done by way of a telephone call.[note: 8] The only direct evidence on this point was the accused’s testimony. Nevertheless, what was notable was that the accused made the claim that he only ordered 100 tablets of MDMA - and nothing else - at an early stage of the investigations and he raised this consistently and repeatedly. The first time he raised the Mistaken Delivery Defence was on the same day as his arrest. In his cautioned statement recorded on 3 December 2019, the accused stated as follows.[note: 9]

I didn’t order anything except the 100 piece of Ecstasy. The Ecstasy was for my own consumption. I did not sell it to anyone. When I took the bag from him, I was in a hurry and just got into the car because the “Ryde” driver has arrived already. I am being framed because I ordered Ecstasy but Ice came.”

Thereafter, he repeated this defence on no less than four other occasions.[note: 10] Thus, this was not a defence that was raised belatedly.

35     The Prosecution took issue with the fact that the accused did not raise this argument in his earliest statement which was recorded roughly about one hour after the accused was arrested. However, it was not the case that the accused provided a substantive statement in that instance and failed to raise the Mistaken Delivery Defence. Rather, the accused simply declined to provide a substantive statement at that time.[note: 11]

Q:    I want to take your statement. Can?

A:    I just ate medicine. I’m feeling dizzy.

The accused gave evidence that he had, even prior to this statement, told a police officer that he only ordered 100 tablets of MDMA but the police officer refused to believe him.[note: 12] This was disputed by the Prosecution. However, what could not be gainsaid was the fact that the Mistaken Delivery Defence was raised at an early stage of the investigations, even on the same day of the accused’s arrest.

36     At this point, I acknowledge a point made by the Prosecution – the accused was generally an unreliable witness. His evidence was inconsistent on many important points, including (i) what he had paid Boy for; (ii) the amount of times he bought vape products from Boy, (iii) the reason for his relapse into drug use; and (iv) the source of funds for his purchase of drugs. I will develop these points subsequently. While this meant that his evidence should be treated with caution, it did not mean that his evidence should be wholly rejected without close examination. Rather, “[t]he court must carefully scrutinise the whole of the evidence to determine which aspect might be true and which aspect should be disregarded”: Public Prosecutor v Somwang Phatthanasaeng [1990] 2 SLR(R) 414 (at [43]).

37     In the present case, the accused’s claim that he only ordered 100 tablets of MDMA and that B1 and B2 were wrongly delivered to him was not without corroborative evidence. On the contrary, the co-accused’s evidence was highly probative of the fact that the drugs were wrongly delivered to the accused. At trial, the co-accused revealed that, shortly after the delivery, Dinesh instructed him to return to the Drop Off Point. The co-accused was to retrieve the plastic bag from the accused and deliver them to another location. If true, the only possible inference must be that Dinesh realised that the drugs had been delivered to the wrong location and wanted to retrieve the drugs and re-direct them to the correct location. The relevant portions of the co-accused’s evidence are reproduced below.[note: 13]

Q    So, when you left the place, where were you going?

A    I’m intending to return to JB.

Q    So, were there any more calls with Dinesh after you handed the plastic bag over to this red shirt man?

A    He called me.

Q    And when did Dinesh call you?

A    When I was leaving after handing over the bundles.

Q    So, Dinesh called you when you were leaving the location where you had handed the bundles over to the red shirt man?

A    I had already left that location. I was on my way towards JB when he called me.

Q    And what did Dinesh say when he called you?

A    He told me to go back to the location to collect back the bundle from the person and go to somewhere in Bukit Batok to give it to someone else.

38     I accepted the evidence provided by the co-accused and accorded it significant weight. In doing so, I was mindful of the following three points.

(a)     To the knowledge of this court, the accused and co-accused were unacquainted with each other. The Prosecution did not allege otherwise. The only time they had met (prior to meeting in court) was when the co-accused delivered the drugs to the accused at the Drop Off Point. On that occasion, they met only for the purpose of handing over the white plastic bag and did not speak to each other.[note: 14] Thus, there was no reason to doubt that the evidence provided by the co-accused was objective and independent.

(b)     The co-accused did not give evidence that he was informed that the drugs were wrongly delivered to the accused. He only testified that he had obtained instructions from Dinesh to retrieve the drugs from the accused and to deliver them to a different location. The co-accused’s account on this point was wholly consistent with the overall manner in which he corresponded with Dinesh. According to the co-accused, he did not know much about the drug operation that Dinesh ran. He knew that he had to collect money and deliver items, but he did not know what drugs were being delivered[note: 15] or the precise nature of the transactions[note: 16]. He was also not given a full set of instructions before leaving Malaysia. He was only provided instructions at appropriate junctures when he needed more information to perform his tasks.[note: 17] Hence, it was entirely consistent that Dinesh would tell the co-accused to return to the Drop Off Point to retrieve the drugs without explaining why he had to do so. It was also not unusual that the co-accused complied with the directions unquestioningly.

(c)     At trial, the co-accused did not reveal the exculpatory information - that he was instructed to retrieve the drugs from the accused and deliver them to another location - at the earliest opportunity. As set out above, the co-accused was first asked by the Prosecution where he was headed after leaving the Drop Off Point. To this, it would have been reasonable for the co-accused to explain that he had been heading to Malaysia but was asked to return to the Drop Off Point. The co-accused did not do so. He simply answered that he was returning to Malaysia without elaboration.[note: 18] Had the Prosecution not asked any further questions, the co-accused would not have had an opportunity to disclose Dinesh’s instructions to him. It was only because the Prosecution specifically asked whether there were any more calls from Dinesh after delivery that led to the co-accused’s account that he was instructed to return to the Drop Off Point. Even then, the evidence came out incrementally and the Prosecution had to ask the necessary follow up questions before the full account was revealed.[note: 19]It may be observed that the critical question from the Prosecution - regarding whether there was any more calls from Dinesh after the delivery - was not an obvious one that would have been asked in any event. This suggested that the co-accused was not anxious to reveal that he was instructed to return to the Drop Off Point to retrieve the drugs.

39     The Prosecution tried to undermine the evidence provided by the co-accused by taking the following points.

(a)     The co-accused was not a credible witness. In particular, the co-accused did not raise the fact that he was asked to retrieve the drugs in any of his police statements.

(b)     The co-accused had nothing to lose by tailoring his evidence to support the accused’s Mistaken Delivery Defence.

(c)     There was no evidence to support the co-accused’s testimony that Dinesh told him to retrieve the drugs from the accused.

For the following reasons, I found that the co-accused’s evidence was not materially damaged at trial.

40     The Prosecution suggested that the co-accused was not a credible witness and sought to impeach his evidence. The Prosecution argued that two parts of his evidence were inconsistent with his police statements: (i) his knowledge of the nature of the drugs he delivered to the accused; and (ii) whether Dinesh informed him to return to the Drop Off Point to retrieve the drugs. In my view, the first point was somewhat peripheral since the co-accused had no direct knowledge of what B1 and B2 contained. As the Prosecution accepted, the co-accused’s knowledge of the drugs would be derived from Dinesh and would be “of little relevance”.[note: 20] In any event, whether the co-accused knew the precise nature of the drugs he was delivering had no bearing on whether the drugs were wrongly delivered. In the present case, what was crucial was the latter point.

41     As to the latter point, it was correct that the co-accused did not disclose in any of his police statements that he was told to return to the Drop Off Point to retrieve the drugs. The co-accused explained that this was because of the manner in which the interview was conducted – he only answered questions he was asked and, unlike at trial, he was never asked whether Dinesh had called him after he had delivered the drugs. He was only asked about the delivery of the drugs and the circumstances of his arrest but not what occurred between these two events.[note: 21] I accepted this explanation. It was, in fact, consistent with the manner in which the co-accused answered questions at trial. As mentioned earlier, the co-accused did not volunteer information about him being told to return to the Drop Off Point until he was specifically asked. There was also no contrary evidence regarding the manner the police interviews were conducted and the questions asked. The Prosecution was at liberty to call the police officers who conducted the interviews to give evidence but it did not do so. Accordingly, there was no reason to reject the co-accused’s evidence on this point.

42     Next, the Prosecution suggested that the co-accused had “nothing to lose” by tailoring his evidence to support the Mistaken Delivery Defence. This was incorrect. Intentionally providing false evidence in court proceedings may constitute a criminal offence: see section 191 of the Penal Code 1871. By providing false evidence, the co-accused would open himself up to criminal sanctions beyond that which he was already serving. On the other hand, as mentioned earlier, there was no evidence that the accused had anything to gain by providing false evidence in court. This did not mean, of course, that this court should accept the co-accused’s evidence unquestioningly. However, the Prosecution was wrong to argue that the co-accused’s evidence should not be believed because he had nothing to lose in giving false evidence.

43     Finally, the Prosecution submitted that there was no evidence to support the co-accused’s evidence that he was instructed to retrieve the drugs. In this regard, the Prosecution highlighted two specific matters.

(a)     There was no call record in the WhatsApp correspondence between the co-accused and Dinesh to support the co-accused’s evidence that Dinesh called him after delivery of the drugs.[note: 22] However, what was produced before this court was a photograph of a particular portion of the WhatsApp correspondence between the co-accused and Dinesh. It was not made clear whether this photograph captured the entire conclusion of the correspondence or only a selected portion of the correspondence. No evidence was led on this point. Accordingly, the possibility that there may have been a record of the call between the co-accused and Dinesh which was not captured by the single photograph put before this court could not be dismissed.

(b)     If the co-accused was informed to return to the Drop Off Point to retrieve the drugs from the accused, it would stand to reason that Boy would also have tried to contact the accused. Boy would need to have the accused return to the Drop Off Point to meet the co-accused. However, the Prosecution argued that there was no evidence that Boy had tried to contact the accused after the delivery. I noted that this point was not specifically canvassed at trial – the accused was not taken through the call logs of his four handphones to determine whether Boy had or had not tried to call him after the delivery. Again, one could not dismiss the possibility that Boy had tried to contact the accused but this evidence was not adduced before the court.

44     Taken together, I was of the view that the co-accused’s evidence - that Dinesh instructed him to retrieve the drugs from the accused and deliver them to a different location - was not materially damaged at trial and should be accorded substantial weight.

45     I turn now to deal with some unsatisfactory aspects of the evidence provided by the accused. These pieces of evidence ought to be weighed against the co-accused’s evidence.

(a)     I accepted the Prosecution’s point that the accused had been inconsistent regarding what he had paid Boy for. Documentary evidence suggested that the accused had paid Boy $1,350 on 1 December 2019 at about 5:11 am. According to the accused, $800 of this sum was payment for 100 tablets of MDMA. The remaining $550 was payment for vape products that the accused had ordered from Boy.[note: 23] However, this testimony was inconsistent with the statements the accused made during investigations. He explained in his police statements that he had purchased vape accessories from Boy on two previous occasions. On both occasions, payment was made in cash upon delivery of the vape products.[note: 24] On the basis of the accused’s police statements, there was no outstanding vape products for which payment had not been made.

(b)     I also agreed that the accused had been inconsistent regarding why he did not attempt to contact Boy or check the contents of B1 and B2 after realising that the plastic bag contained two bundles. As mentioned, the accused had described himself as “surprised” at trial[note: 25] and “shocked” in his police statements[note: 26] when he realised that there were two bundles in the plastic bag. On this point, the accused gave three different explanations: (i) his handphone did not have sufficient credits to make calls;[note: 27] (ii) he realised that the private hire car he was in was being followed and was “not thinking properly”;[note: 28] and (iii) it was inconvenient to do so in the private hire car as he was involved in illegality.[note: 29]

(c)     There was evidence that suggested that the accused was generally involved in drug-related activities at the material time.

(i)       Adduced in evidence was a Telegram conversation between the accused and an associate identified as “Super” which discussed the transportation of methamphetamine from Malaysia to Singapore.[note: 30]

(ii)       Pictures of crystalline substances were found in one of the accused’s handphones.[note: 31] While the accused claimed at trial that these were just bathing salts[note: 32], he admitted in his police statements that the substances were methamphetamine sent by a friend to him as a boast[note: 33].

(iii)       A photograph of various mathematical figures was found in one of the accused’s handphones.[note: 34] The accused testified that these figures represented the market price of methamphetamine. However, according to the accused, these figures were not his. The photograph was in fact one of a page from a friend’s notebook. The accused took the photograph as he was curious about the price of methamphetamine.[note: 35]

Conclusion

46     In summary of this section, there were pieces of evidence that pointed in different directions. In particular, there was evidence that suggested that the accused was involved in drug-related activities generally. More significant, however, was the evidence of the co-accused which was highly probative of the fact that the drugs the accused received were wrongly delivered. The co-accused’s account corroborated the accused’s Mistaken Delivery Defence. Considering the totality of the evidence and ascribing weight to the different pieces of evidence as may be appropriate, I found that the Defence had proven the Mistaken Delivery Defence on a balance of probabilities and that there was reasonable doubt as to whether the accused was the correct recipient of B1 and B2.

47     It followed from this finding that the accused must be acquitted of the Methamphetamine Possession Charge and the Diamorphine Possession Charge. However, the Prosecution argued that even if the Mistaken Delivery Defence was made out, the MDMA Trafficking Charge should be altered and the accused should be convicted of the Attempted MDMA Trafficking Charge. To this contention I now turn.

Issue 2: Whether accused guilty of Attempted MDMA Trafficking Charge

Prosecution’s position

48     In the event that the accused was innocent of the MDMA Trafficking Charge, the Prosecution submitted that this court, instead of acquitting him of the charge altogether, should alter the charge to one for attempted possession for the purpose of trafficking. The Prosecution framed the proposed Attempted MDMA Trafficking Charge in the following manner.

You, Abdullah Bin Mohammad Kunhi, are charged that you, on 3 December 2019 at about 1.00 a.m., at the drop off point of Blk 435B Bukit Batok West Avenue 5 Singapore 652435, did attempt to traffic in a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, Rev Ed 2008)(“MDA”), to wit, by having in your possession one (1) packet containing one hundred (100) tablets weighing not less than 29.67 grams, which was analysed and found to contain not less than 15.01 grams of MDMA (“ecstasy”), which you believed to be the 100 ecstasy tablets that you had ordered, for the purpose of trafficking, at the said place, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) and s 12 MDA.

And further, that you, before the commission of the said offence, on 13 December 2010, in the District Court No. 19, in Singapore, vide DAC 23780/2010, were convicted for an offence of trafficking in a controlled drug, to wit, methamphetamine, under s 5(1)(a) MDA, and were sentenced to 7 years’ imprisonment and 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you are thereby liable for enhanced punishment under s 33(4A)(i) MDA.

49     The Prosecution argued that the proposed Attempted MDMA Trafficking Charge was consistent with the position taken in Public Prosecutor v Mas Swan bin Adnan and another appeal [2012] SGCA 29 (“Mas Swan”). In the present case, the accused, it was contended, had done everything possible to complete the offence of possessing 100 tablets of MDMA for the purpose of trafficking. The only circumstance that prevented him from actually possessing the MDMA tablets he ordered was that he had received someone else’s MDMA tablets instead of his own.

50     It was submitted that the Attempted MDMA Trafficking Charge was framed based on the accused’s own evidence and there could not be any prejudice against him.

Defence’s position

51     The Defence did not allege that the accused suffered from any prejudice if the MDMA Trafficking Charge were to be altered to the Attempted MDMA Trafficking Charge. However, the Defence submitted that the accused could not be guilty of the Attempted MDMA Trafficking Charge for the following reasons.

(a)     The Attempted MDMA Trafficking Charge was drafted wrongly. The accused could not be found guilty of attempting to possess drugs which were actually found in his possession.

(b)     The primary offence was an impossibility – the accused’s order of 100 tablets never came into Singapore and the drugs the accused received were not meant for him.

(c)     The accused ordered 100 tablets of MDMA for personal consumption, not trafficking.

(d)     The accused’s act was only limited to ordering the MDMA tablets. This was insufficient to constitute an attempt to possess the tablets.

52     At this point, it would be easiest to deal with the Defence’s first objection immediately. The first objection was based on a misreading of the Attempted MDMA Trafficking Charge. The Attempted MDMA Trafficking Charge did not allege that the accused attempted to possess the 100 tablets that he was actually caught with. Rather, the allegation was that he attempted to possess the MDMA tablets that he had ordered. The fact that the accused had in his possession the 100 MDMA tablets which was contained in B1 simply constituted part of the actus reus (or the physical element) of the attempt. Hence, the first objection was a non-starter.

The applicable law

53     Section 12 of the MDA provides that an attempt to commit a drug-related offence would, in itself, be an offence.

Abetments and attempts punishable as offences

12.     Any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

54     It would also be necessary to consider the general provision dealing with attempts to commit offences under the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). At the time of the accused’s arrest, that provision read as follows.

Punishment for attempting to commit offences

511.—(1)    Subject to subsection (2), whoever attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence.

(2)    The longest term of imprisonment that may be imposed under subsection (1) shall not exceed —

(a)    15 years where such attempt is in relation to an offence punishable with imprisonment for life; or

(b)    one-half of the longest term provided for the offence in any other case

Illustrations

(a)     A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(b)    A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

55     Section 511 of the Penal Code has since been amended by the Criminal Law Reform Act 2019 (Act 15 of 2019) to require the taking of a “substantial step towards the commission of that offence”. However, the amended version of section 511 was not applicable for the purposes of the present case.

56     The law in relation to impossible attempts was comprehensively reviewed and set out by the Court of Appeal in Han Fang Guan v Public Prosecutor [2020] 1 SLR 649 (“Han Fang Guan”). In that decision, the Court of Appeal explained (at [107]) that, once the criminality of the intended act is established, it did not matter that the attempt is impossible. This is because what is being criminalised is the guilty intent of the offender and a movement towards the fulfilment of that intent.

An attempt is criminalised because the intended (or attempted) act is illegal; and the imposition of a requirement that there be sufficient acts to corroborate the existence of that guilty intention serves not only as an evidentiary threshold, but also, and more importantly, as a safeguard to ensure that an accused person is not penalised purely for having a guilty intent. Seen in this light, cases involving impossible attempts must be resolved by focusing on the criminality of the intended act. If that is sufficiently established, it will not generally matter even if what the accused person in fact did would not objectively amount to an offence, such as if a would-be murderer stabbed a bolster mistakenly thinking it was his intended victim. The accused person’s acts are to be analysed against the guilty intent with which he set out, in order to corroborate that intent and establish a movement towards its fulfilment that the law regards as sufficient so as to filter out cases that reside, in truth, only in the guilty mind. [Emphasis added.]

This point therefore answered the second of the arguments made by the Defence in this regard: see [51(b)], above.

57     To take into account all relevant factors, the Court of Appeal established (at [108]) the following framework to analyse impossible attempts.

(a)     Intention – Was there a specific intention to commit a criminal act?

(i)       The key questions in this regard are:

(A)       What was the act that the accused person specifically intended to do?

(B)       Was that intended act criminal, either on its face or by reason of some mistaken belief harboured by the accused person?

(ii)       The inquiry only proceeds to the second stage if the answer to (B) above is “yes”. This would sieve out situations where what the accused person intended to do was not an offence at all, meaning cases of no-offence impossibility, which, as the court in Han Fang Guan noted, is commonly accepted not to give rise to criminal liability for attempt.

(b)      Actus reus – Were there sufficient acts by the accused person in furtherance of the specific intention to commit the criminal act found under (a)? The inquiry here is directed at whether there were sufficient acts to reasonably corroborate the presence of that intention and demonstrate substantial movement towards its fulfilment. A conviction may only be arrived at if the answer to this is “yes”. This inquiry also serves to avoid penalising mere guilty intentions.

Application of the law

58     I now consider how the Han Fang Guan framework applied in the present case.

What was the intended act?

59     In the present case, it was undisputed that the accused intended to possess 100 tablets of MDMA. This was so for the following reasons.

(a)     The accused admitted that he placed an order for 100 MDMA tablets with Boy on 30 November or 1 December 2019.[note: 36] The purpose for the order was disputed (and I will address this subsequently) but for present purposes, it was undisputed that the accused placed the order with every intention to receive delivery of the order.

(b)     The accused made a cash deposit of $1,350 in favour of Boy on 1 December 2019. Of this amount, $800 was payment for the 100 MDMA tablets that the accused had ordered.[note: 37]

(c)     The accused arranged with Boy for the delivery of the 100 MDMA tablets to be made at the Drop Off Point.[note: 38]

(d)     In satisfaction of this arrangement, Boy informed the accused, at about 12:50 am on 3 December 2019, that the co-accused had arrived at the Drop Off Point. The accused met the co-accused and took possession of the white plastic bag with the intention of taking delivery of the 100 MDMA tablets that he had ordered.[note: 39]

60     In my judgment, it was beyond peradventure that the accused intended to possess 100 tablets of MDMA.

Was the intended act criminal?

61     Under section 5(1)(a) of the MDA, it shall be an offence for a person to traffic in a controlled drug. Under the First Schedule of the MDA, MDMA was a Class A controlled drug. The offence of trafficking may be constituted if that person had in his possession that drug for the purpose of trafficking: section 5(2) of the MDA. Accordingly, the accused’s intended act of possessing 100 tablets of MDMA would be criminal if it was done for the purpose of trafficking.

62     As regards the purpose of possessing controlled drugs was concerned, there was a statutory presumption of trafficking under section 17(i) of the MDA. This statutory presumption applied in a situation when a person had in his possession more than ten grams of MDMA. In the present case, 100 tablets of MDMA of the type the accused ordered weighed not less than 15.01 grams.

63     Accordingly, the act that the accused intended to commit – possessing 100 tablets of MDMA – was criminal unless the accused was able to prove on a balance of probabilities that the 100 tablets he had intended to possess were not for the purpose of trafficking. In this regard, the accused testified that the 100 tablets of MDMA were meant for personal consumption. This was also the position he took in his police statements as early as 3 December 2019.[note: 40] Nevertheless, on the totality of the evidence, I found that the accused failed to prove the Consumption Defence.

(A)   Rate of consumption

64     The rate of consumption has been described as the “key pillar and essential foundation” of a consumption defence. The Court of Appeal held that “[t]he appellant bears the burden of establishing the extent of his personal consumption, and it is incumbent on him to show, by credible evidence, his rate of consumption”: A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538 (at [25]).

65     In the present case, the accused testified that he would consume between two to five MDMA tablets a day, depending on the quality of the tablets.[note: 41] This was a slight shift from the account he gave in his police statements where he had stated that “[b]ack then, I had consumed 02 to 03 “E” tablets per day”.[note: 42] As mentioned (at [36], above), the accused was a generally unreliable witness whose evidence should be approached with caution. Given that there was no other corroborative evidence regarding the accused’s rate of consumption, the accused’s evidence on this point must be assessed accordingly.

66     In any event, based on the accused’s evidence, he would consume 100 tablets of MDMA in 20 to 50 days. In my judgment, such a rate of consumption was not strongly probative that the tablets were meant only for personal consumption, especially in light of the subsequent discussion regarding his ability to pay for the drugs.

(B)   Reason for relapse

67     According to the accused, he did not consume any drugs since he was released on bail on 26 October 2019. Nevertheless, he accepted that he ordered 100 tablets of MDMA from Boy on either 29 or 30 November 2019. The accused argued that he had ordered these tablets for personal consumption. However, he could not provide a consistent account of why he decided to relapse into consuming MDMA and why he would order 100 tablets of MDMA in a single instance.

68     In his police statements, the accused provided two reasons why he ordered 100 tablets of MDMA in a single instance.

(a)     The accused ordered 100 tablets of MDMA “as it was cheaper to buy more”.[note: 43] However, this reason did not withstand scrutiny. At trial, the accused stated that he did not know whether he, in fact, enjoyed a discount for purchasing 100 tablets in a single instance.[note: 44] He simply stated that “[t]hat’s what Boy told me. If I buy more, I can get cheaper.”[note: 45] If the motivation for buying so many MDMA tablets in a single instance was to enable the accused to pay less per tablet, it was curious that the accused did not ensure that he did, in fact, enjoy a better rate.

(b)     Next, the accused proffered in his police statements that he decided to overdose on MDMA as he saw his mother cry when she caught the accused consuming “Epam”. His logic was that “[he] could not stop [his] addiction to “ice” and “heroin” so [he] thought about overdosing [himself]”. However, at trial, he recanted from this position. He clarified that the episode of his mother crying only took place on 3 November 2019 (after the accused was arrested for the present offences). Hence, it had no impact on the accused’s decision to purchase 100 tablets of MDMA.[note: 46]

69     At trial, the accused provided two different reasons for ordering 100 tablets of MDMA from Boy.

(a)     The accused said that his bailor, one Mr Firdaus, had motivated him to stay clean from drugs after his release on bail on 26 October 2019. However, the bailor himself was arrested for drug trafficking and this caused the accused to desire to take drugs again.[note: 47] However, Mr Firdaus was not called to give corroborative evidence at trial.

(b)     The accused also mentioned that he visited a friend and saw some people taking drugs and this caused him to have the urge to do the same. However, this contention was bereft of particulars. The accused was unable to provide the friend’s name[note: 48] or the date on which this incident occurred[note: 49].

70     All in all, the accused was unable to provide a consistent account of why he decided to purchase 100 tablets of MDMA from Boy and many of the accounts he provided could not be believed.

(C)   Source of funds

71     The accused was also unable to satisfactorily explain how he was able to afford the drugs which he purchased, if he did not intend to sell them.

72     In his police statements, the accused stated that he was unemployed and that his bank accounts had been frozen since he was arrested in April 2019 for other drug offences.[note: 50] In these circumstances, he only had two sources of income.

(a)     His mother or sister would provide him $100 in cash each week.[note: 51]

(b)     He also used an ATM card that his mother had provided him to withdraw a total of $200.[note: 52] He also stated that he was embarrassed at having to use his mother’s money.

73     At trial, the accused took a different position. He claimed that he, in fact, had four sources of income.

(a)     A weekly allowance of $100 from his mother or sister.

(b)     Cash withdrawn from his mother’s ATM card. In this regard, the accused was evasive at trial about the number of times he withdrew money. He first stated he could not remember, before moving to “[q]uite a few times” and finally settling at four times.[note: 53] He also initially refused to commit to a position on how much he withdrew, stating that “[i]t depends on the situation”.[note: 54] When pressed for an estimate, the accused stated it would be $300 each time before finally adding that there was one occasion when he withdraw $600.[note: 55]

(c)     The sale of vape products. According to the accused, he purchased vape products from Boy on multiple occasions.[note: 56] However, he could not be specific about the number of times he bought vape products from Boy.[note: 57] He also could not say how much he earned from selling vape products.[note: 58] As mentioned earlier, this position was entirely different from his police statements where he only identified two occasions on which he purchased vape products from Boy: see [45(a)], above.

(d)     He also stated that Firdaus loaned him “two, three hundred dollars”.[note: 59] He later changed his position by stating that this sum was a gift, not a loan.[note: 60] Again, Firdaus was not called to give evidence.

74     It was therefore clear that the accused had been inconsistent with his sources of income. At trial, he gradually developed both the number of his income sources as well as the amount of monies he had access to. I had no hesitation in rejecting his account at trial regarding his sources of funds. I regarded the account the accused provided in his police statements as generally being closer to the truth. This would mean that the estimated funds he had during the period he was out on bail should be in the region of $900. Given that he would have to pay for his day-to-day expenses from this sum, the accused was unable to properly explain how he was able to afford paying $800 for 100 MDMA tablets if he did not intend to recover some funds by selling the tablets.

(D)   Attempted sale of MDMA tablets

75     Admitted into evidence were incriminating messages exchanged between the accused and an acquaintance identified as “Robin”. These messages were dated 27 November 2019, which was just several days before the accused was arrested. From the tenor of these messages, it appeared the accused was trying sell Robin MDMA tablets.

76     At trial, the accused explained that it was Robin who was pestering the accused to sell him MDMA tablets. In order to put Robin off, the accused quoted Robin a “ridiculously high price”.[note: 61] However, a plain reading of the messages in fact suggested that Robin had initially rejected the accused’s offer to sell him MDMA tablets and the accused had tried to persuade Robin to purchase the tablets.[note: 62]

Accused:

Bro u got the pic I sent

[voice message sent]

Robin:

Don’t want bro

 

Next one I will take

Accused:

U got new lobang already ah….

Robin:

No bro.

 

That fellow nvr contact me yet

Accused:

Oohh...coz of tat frog I bought already sia frm my friend

Robin:

Ok. Then Tmr I meet u take samples. If can I take 500

[Emphasis added.]



77     It must be recalled that, contrary to the message sent by the accused, the accused had not in fact yet placed his order for 100 tablets of MDMA. He did so on 30 November or 1 December 2019. [note: 63] However, this did not detract from the overall tenor of the message which suggested that the accused was trying to persuade Robin to purchase MDMA from him.

78     The idea of Robin pestering the accused to sell Robin MDMA tablets (rather than the accused trying to sell Robin MDMA tablets) was also not the account the accused provided to the police. In his police statements, the accused merely gave the following account.[note: 64]

Photograph 3 is for the guy who had wanted to buy “E” tablets from me, but I did not sell him as he felt it was too expensive. I have never sold “E” tablets to him before. He knew I had ways to get “E” tablets from our conversation in a club long ago.

79     Finally, at a subsequent point of the trial, the accused changed his position completely. He suggested that the “frog” in the messages did not refer to MDMA tablets but to a vape product.[note: 65] The accused also stated that he was confused when the investigation officer first showed him the messages.[note: 66]

80     I rejected the notion that the accused was trying to sell Robin a vape product instead of MDMA tablets. This suggestion was made at a very belated stage and was, in my judgment, an afterthought, an attempt to minimise the accused’s involvement with drugs. I also rejected the suggestion that it was Robin who pestered the accused to sell Robin MDMA pills. This was wholly inconsistent with a plain reading of the text messages. I accepted the Prosecution’s position that the messages, in fact, related to an attempt by the accused to sell Robin MDMA pills.

81     Viewing all of the above factors holistically, I found that the accused failed to establish the Consumption Defence on a balance of probabilities.

82     Given that the accused intended to possess 100 tablets of MDMA and the accused’s inability to establish on a balance of probabilities the Consumption Defence, I found that the accused’s intended act was criminal. The accused’s intended act would constitute an offence under section 5(1)(a) read with section 5(2) of the MDA.

Were there sufficient acts by the accused person in furtherance of his intention?

83     The last step in the Han Fang Guan framework was to ascertain if an offender of an attempt took “sufficient acts” to further his criminal intention. This is necessary “to avoid penalising mere guilty intentions”: Han Fang Guan (at [108(b)]).

84     On this issue, the Defence was wholly incorrect to argue that the accused’s acts were “only limited to ordering the tablets”.[note: 67] As I have explained earlier (at [59], above), the accused performed the following acts.

(a)     He placed an order to purchase 100 MDMA tablets.

(b)     He made payment for the tablets.

(c)     He arranged for the tablets to be delivered.

(d)     He went to the Drop Off Point with the intention of taking delivery of the tablets that he had ordered and did take delivery of the white plastic bag.

85     In my judgment, the acts that the accused performed was more than sufficient to constitute an attempt. Indeed, the present case was similar to that in Mas Swan where the Court of Appeal held (at [44]) that the offender “had done everything possible to complete the offence”. In the present case, the accused had also done everything possible to complete an offence of possession of 100 tablets of MDMA for the purpose of trafficking. The only reason he was not guilty of the MDMA Trafficking Charge was because the wrong set of drugs was delivered to him.

Conclusion

86     In conclusion of this part, I held that the answers to the questions set out in the Han Fang Guan framework were all in the affirmative. Accordingly, it was appropriate to alter the MDMA Trafficking Charge to the Attempted MDMA Trafficking Charge on terms as proposed by the Prosecution (see [48], above). Pursuant to section 128 of the Criminal Procedure Code 2010 (“CPC”), I altered the charge accordingly.

87     As required under that provision, the Attempted MDMA Trafficking Charge was read and explained to the accused. I called on the accused to enter his plea. After consulting with the Defence counsel, the accused maintained his original plea of not guilty. He also confirmed that he did not wish to call any new witness or recall any witness in relation to the Attempted MDMA Trafficking Charge.

88     I was satisfied that the Prosecution had proven the elements of the Attempted MDMA Trafficking Charge against the accused beyond reasonable doubt. In the premises, I found the accused guilty of the Attempted MDMA Trafficking Charge and convicted him accordingly.

The THC Possession Charge and the Drug Utensils Charge

89     The accused did not challenge the THC Possession Charge and the Drug Utensils Charge. Nevertheless, I will briefly address these charges for completeness.

90     As regards the THC Possession Charge, the accused admitted that he was in possession of a packet of vegetable matter that was subsequently analysed and found to contain tetrahydrocannabinol.[note: 68] He also admitted at trial that he knew that it contained cannabis.[note: 69]

91     As regards the Drug Utensils Charge, the accused admitted that he was in possession of the spoon, straw, improvised bottle, glass pipe, aluminium foil, cut straws and lighters set out in the charge.[note: 70] He also admitted that they were intended to be used for consumption of controlled drugs.[note: 71]

92     I was satisfied that the Prosecution had proven the elements of the THC Possession Charge and the Drug Utensils Charge against the accused beyond reasonable doubt. Accordingly, I convicted him of these charges.

Orders Made After Trial

93     For the foregoing reasons, I made the following orders at the close of trial:

(a)     I acquitted the accused of the Methamphetamine Possession Charge and the Diamorphine Possession Charge.

(b)     I altered the MDMA Trafficking Charge to the Attempted MDMA Trafficking Charge and convicted the accused of the said Charge.

(c)     I convicted the accused of the THC Possession Charge and the Drug Utensils Charge.

Sentencing

94     After I convicted the accused of the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge, the accused subsequently pleaded guilty to a further two charges. The first was for consumption of methamphetamine, an offence under section 8(b)(ii) of the MDA (the “Methamphetamine Consumption Charge”). The second was for possession of a scheduled weapon, an offence under section 7(1)(a) of the Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 2013 Rev Ed) (the “Offensive Weapon Charge”).

95     These charges were on the following terms.

Methamphetamine Consumption Charge

You… are charged that you, on or before 16 April 2019, in Singapore, did consume a Specified Drug listed in The Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, methamphetamine, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed),

and further, that you, before the commission of the said offence, had been convicted on 13 December 2010 in District Court 19 (DAC23784/2010), for an offence of Consumption of a Specified Drug, to wit, Morphine, under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), and punished under Sec 33A(1) of the said Act with 5 years imprisonment and 3 stokes of the cane, for which conviction and punishment has not been set aside to date, and you shall now be liable for punishment under Sec 33A(2) of the said Act.

Offensive Weapon Charge

You… are charged that you, on the 03th day of December 2019, at or about 1.00 a.m., at Blk 435B Bukit Batok West Avenue 5 drop off point, Singapore, who, otherwise than for a lawful purpose, has in your possession any scheduled weapon, to wit, a sword with 30 centimetres blade and you have thereby committed an offence punishable under Section 7(1)(a) of the Corrosive and Explosive Substances and Offensive Weapons Act, Chapter 65.

96     The accused also consented to have another five charges taken into consideration for the purpose of sentencing.

(a)     Three charges for drug possession, offences under section 8(1) of the MDA.

(b)     One charge for possession of drug utensils, an offence under section 9 of the MDA.

(c)     One charge for failing to provide his urine sample, an offence under section 31(2) of the MDA.

Facts

97     The facts relevant to the two charges to which the accused pleaded guilty were as follows. The accused accepted these facts without qualification.

The Methamphetamine Consumption Charge

98     On 16th April 2019, the accused was arrested on suspicion of having committed drug offences. Subsequently, he provided two bottles of his urine sample which were sent for analysis. Upon analysis, the accused’s urine samples were found to contain methamphetamine.

99     The accused admitted that he had smoked “ice” (a street name for methamphetamine) prior to his arrest.

The Offensive Weapon Charge

100    On 3 December 2019, the accused was arrested by CNB officers. A search was conducted and a cane sword with blade of 30 cm was seized from his backpack.

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101    Investigations revealed that the accused found the cane sword at a rubbish chute under his block two days before his arrest. The accused took the cane sword home because he wanted to display it. He subsequently brought the cane sword out on 3 December 2019 as he intended to sell it to a friend.

Prescribed penalties

102    The prescribed penalties for the offences for which the accused was convicted were as follows.

The Attempted MDMA Trafficking Charge

Imprisonment for a term not less than ten years and not more than 30 years; and not less than ten strokes and not more than 15 strokes of the cane.

The THC Possession Charge

Maximum: ten years’ imprisonment or $20,000 fine or both.

Minimum for a second or subsequent offence: two years’ imprisonment

The Drug Utensils Charge

Maximum: three years’ imprisonment or $10,000 fine or both

The Methamphetamine Consumption Charge

Imprisonment for a term of not less than seven years and not more than 13 years; and not less than six strokes and not more than 12 strokes of the cane.

The Offensive Weapon Charge

Imprisonment for a term not exceeding five years; and not less than six strokes of the cane.



Antecedents

103    The accused’s antecedents are set out below. He accepted these antecedents as correct.

Date of Conviction

Offence

Sentence

7 September 2001

Drug consumption

12 months’ imprisonment

Drug consumption

TIC

Aggregate

12 months’ imprisonment

17 March 2003

Attempted drug possession for the purpose of trafficking

Six years’ imprisonment and five strokes of the cane

Drug consumption

Three years’ imprisonment

Drug possession

Two years’ imprisonment (concurrent)

Drug possession

TIC

Possession of drug utensils

Drug consumption

Aggregate

Nine years’ imprisonment and five strokes of the cane

13 December 2010

Drug possession for the purpose of trafficking

Seven years’ imprisonment and five strokes of the cane

Drug possession for the purpose of trafficking

Seven years’ imprisonment and five strokes of the cane (concurrent)

Drug consumption

Five years LTI imprisonment and three strokes of the cane

Drug possession

Three years’ imprisonment (concurrent)

Drug possession for the purpose of trafficking

TIC

Drug possession for the purpose of trafficking

Drug possession for the purpose of trafficking

Possession of drug utensils

Drug consumption

Drug consumption

Failing to report for urine test

Failing to report for urine test

Aggregate

12 years’ imprisonment and 13 strokes of the cane



Prosecution’s submissions on sentence

104    The Prosecution urged this court to impose the following sentences.

The Attempted MDMA Trafficking Charge

11 to 12 years’ imprisonment (consecutive) and 10 strokes of the cane

The THC Possession Charge

3.5 to four years’ imprisonment (consecutive)

The Drug Utensils Charge

Three to four months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (concurrent) and six strokes of the cane

Aggregate

14.5 to 16 years’ imprisonment and 22 strokes of the cane



105    As regards the Attempted MDMA Trafficking Charge, the Prosecution highlighted that the present offence was the accused’s third conviction for a trafficking offence. The accused was previously convicted in 2003 and 2010 of drug trafficking or attempted drug trafficking offences. In these circumstances, the Prosecution argued that the principles of escalation and specific deterrence would apply. For these reasons, the Prosecution submitted that a one to two year uplift from the mandatory minimum sentence should be imposed.

106    As regards the THC Possession Charge, the accused was similarly convicted of drug possession offences in 2003 and 2010. Again, the principles of escalation and specific deterrence were relevant. The Prosecution sought a half to one year uplift from the accused’s previous sentence of 3 years’ imprisonment.

107    As regards the Drug Utensils Charge, the Prosecution sought three to four months’ imprisonment in the absence of similar of antecedents.

108    As regards the Methamphetamine Consumption Charge, the Prosecution sought the mandatory minimum sentence of seven years’ imprisonment and six strokes of the cane.

109    As regards the Offensive Weapon Charge, the Prosecution submitted that the median sentence for such offences, based on data from the Sentencing Information Repository data, was 6 months’ imprisonment with the mandatory minimum of six strokes of the cane. The Prosecution sought a similar sentence for this offence.

110    Finally, the Prosecution took the position that, having regard to section 307(1) of the CPC and the principle of totality, the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge should run consecutively.

Defence’s mitigation and submissions on sentence

Mitigation

111    In mitigation, the Defence took the following points.

(a)     The accused was genuinely remorseful and had pleaded guilty to the Methamphetamine Consumption Charge and the Offensive Weapon Charge.

(b)     The accused cooperated with the authorities at all times.

(c)     The accused should be accorded some compassion on medical grounds. According to a medical report filed by the Defence, the accused was, at the time of sentencing, suffering from microscopic haematuria (a medical condition in which urine contains small amounts of blood), left renal stone, lower urinary tract symptoms, urinary tract infection, and voiding dysfunction (an inability to fully discharge urine).

Submissions on sentence

112    Insofar as sentence was concerned, the Defence generally agreed with the Prosecution’s submissions. The only areas of disagreement was in relation to the sentence for the Attempted MDMA Trafficking Charge and which sentences should run consecutively.

The Attempted MDMA Trafficking Charge

Ten years’ imprisonment (consecutive) and ten strokes of the cane

The THC Possession Charge

3.5 to four years’ imprisonment (concurrent)

The Drug Utensils Charge

Three to four months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (consecutive) and six strokes of the cane

Aggregate

Ten years and six months’ imprisonment and 22 strokes of the cane



113    As regards the Attempted MDMA Trafficking Charge, the Defence highlighted that the accused’s last sentence for a drug trafficking charge, in 2010, was seven years’ imprisonment. This represented a one year uplift from his sentence for a similar charge in 2003. The mandatory minimum sentence applicable to the Attempted MDMA Trafficking Charge now required a three-year uplift from his last sentence in 2010. In the view of the Defence, such an uplift would be more than sufficient to satisfy the principle of escalation and specific deterrence. Accordingly, no more than the mandatory minimum sentence should be imposed in respect of this offence.

114    As to the running of the sentences, the Defence took the position that, save for the Methamphetamine Consumption Charge, all the other offences were part of a single transaction. As the law requires at least two sentences to run consecutively, the Defence urged this court to run the sentences for the Attempted MDMA Trafficking Charge and the Offensive Weapon Charge consecutively with the other sentences running concurrently. This would, in the Defence’s view, be consonant with the totality principle.

Decision on sentence

The Attempted MDMA Trafficking Charge

115    Insofar as the Attempted MDMA Trafficking Charge was concerned, I agreed with the Prosecution that an uplift from the mandatory minimum sentence would be appropriate. In this regard, three points were pertinent.

116    To begin with, and as I have explained above, the accused had done everything possible to complete the offence: see [85], above. This was not a case where an offender had taken only preliminary or partial steps to commit the offence. The only reason why the MDMA Trafficking Charge was not constituted was something that had nothing to do with the accused’s intentions or actions – he was sent the wrong set of drugs. His culpability was therefore not diminished by the fact that he was merely guilty of an attempt.

117    Next, the Prosecution was correct in pointing out that the present conviction was the accused’s third conviction for a drug trafficking or attempted drug trafficking offence. The provision under which the accused was punished – section 33(4A)(i) of the MDA – was applicable for any repeat offending. In Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (at [29]), the Court of Appeal held that “the full spectrum of possible sentences should be utilised” in sentencing. Generally, this should mean that the mandatory minimum sentence should be reserved for the least severe of cases contemplated under the sentencing regime. In the present case, the mandatory minimum sentence should be reserved for cases where the offender had only repeated the offence once, unless compelling mitigating factors present themselves.

118    Finally, while it was correct that the mandatory minimum sentence represented a significant uplift from the accused’s last sentence of seven years’ imprisonment, this was consistent with Parliamentary intent. The present punishment provision – section 33(4A)(i) of the MDA – was introduced via the Misuse of Drugs (Amendment) Bill (Bill No. 27/2012). Prior to this Bill, there was no statutorily mandated enhanced punishment for repeat drug trafficking. It was under these circumstances that the accused was sentenced to seven years’ imprisonment for his last drug trafficking offence even though it was a repeat offence. In introducing enhanced punishment for repeat drug trafficking, Parliament was concerned with certain challenges facing Singapore in the trafficking and use of illicit drugs: Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89. In particular, the then Deputy Prime Minister and Minister for Home Affairs, Mr Teo Chee Hean, explained that “[t]he drug problem in our immediate vicinity is very real. Globally, new psychoactive substances are also being developed so rapidly that law enforcement agencies are having difficulties dealing with them effectively. These new psychoactive substances mimic effects of controlled drugs such as amphetamines, cocaine and cannabis and have the potential to cause as much, if not more harm.” To address these issues, Parliament, among other things, introduced enhanced sentences for repeat drug trafficking. Accordingly, it would be consistent with Parliament’s intent that the sentence for the Attempted MDMA Trafficking Charge be substantially higher than the accused’s last drug trafficking sentence.

119    Insofar as mitigating factors were concerned, the Defence submitted that the accused cooperated with the authorities. The Prosecution did not deny this. Nevertheless, the fact remained that the accused chose to challenge the charge when it was read and explained to him: see [87], above. In these circumstances, the weight to be ascribed to this factor was attenuated.

120    Turning to the Defence’s plea for compassion on account of the accused’s medical conditions, the relevant principles set out by the High Court in Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 (“Chew Soo Chun”) (at [38] – [39]) are as follows.

(a)     Ill health is relevant to sentencing in two ways.

(b)     First, it is a ground for the exercise of judicial mercy. Judicial mercy is an exceptional recourse available for truly exceptional cases and which will likely result in an exceptional sentence. Where mercy is exercised, the court is compelled by humanitarian considerations arising from the exceptional circumstances to order the minimum imprisonment term or a non-custodial sentence where appropriate.

(c)     Second, ill health exists as a mitigating factor. The cases where ill health will be regarded as a mitigating factor include those which do not fall within the realm of the exceptional but involve markedly disproportionate impact of an imprisonment term on an offender by reason of his ill health. The court takes into account the fact that ill health may render an imprisonment term that will not otherwise be crushing to one offender but may be so to another.

(d)     In all other cases, ill health is irrelevant. It may be that the offender has a condition or several conditions, but unless he can satisfy the tests for exercising judicial mercy or for mitigating a sentence because of disproportionate suffering or decreased culpability, there is no proper basis to vary the sentence.

121    In the present case, the accused’s medical conditions were irrelevant for the purpose of sentencing. This was so for the following reasons.

(a)     Counsel did not argue that the accused’s ill health was a ground to exercise judicial mercy. Indeed, this was correct. Situations in which judicial mercy may be exercised include those where the offender was suffering from a terminal illness and where the offender was so ill that a sentence of imprisonment would carry a high risk of endangering his life. It would also be possible to exercise judicial mercy in other situations that are equally grave: Chew Soo Chun (at [27]). The accused’s medical conditions did not approach that magnitude of severity.

(b)     Moreover, the accused’s conditions were not so serious that they should carry mitigating weight. In this regard, the question was “whether the offender faces far greater suffering than the usual hardship in serving a term of imprisonment… generally, it is constituted by a risk of significant deterioration in health or a significant exacerbation of pain and suffering”: Chew Soo Chun (at [34]).

(c)     In the present case, the accused suffered from conditions relating to his kidney and urine: see [111(c)], above. None of these conditions meant that the accused faced far greater suffering than the usual hardship in serving a term of imprisonment. Indeed, there was no evidence that Prisons did not have the ability to manage or treat these medical issues. Similarly, these was no argument that these issues would be exacerbated by prison conditions.

122    Having regard to all of the above considerations, I imposed a sentence of 11 years’ imprisonment and ten strokes of the cane for the Attempted MDMA Trafficking Charge.

The THC Possession Charge

123    Insofar as the THC Possession Charge was concerned, both parties agreed that a sentence of 3.5 to four years’ imprisonment would be appropriate. I accepted this position. The THC was contained in 0.93 gram of fragmented vegetable matter which was not so significant as to be aggravating. Insofar as aggravating factors were concerned, the accused was convicted in 2003 and 2010 of drug possession. The present offence was therefore his third conviction for drug possession. In the last instance in 2010, the accused was sentenced to three years’ imprisonment for drug possession. Further, there were another three charges for drug possession to be taken into consideration for sentencing purposes. As regards mitigating factors, it was again the case that the weight to be accorded to the fact that the accused had cooperated with the authorities must be circumscribed as he had chosen to claim trial to this charge, even if he did not actively challenge this charge at trial. Taken together, I imposed a sentence of three years and six months’ imprisonment for this offence.

The Drug Utensils Charge

124    As regards the Drug Utensils Charge, both parties agreed that a sentence of three to four months’ imprisonment would be appropriate in the absence of similar antecedents. This was supported by the case of Effrizan Kamisran v Public Prosecutor [2020] 5 SLR 757 where the High Court upheld a sentence of three months’ imprisonment imposed by the District Court for a similar charge. I accepted this position. Accordingly, I imposed a sentence of three months’ imprisonment.

The Methamphetamine Consumption Charge

125    As regards the Methamphetamine Consumption Charge, the accused was liable for enhanced punishment as he had a prior conviction for LT1 drug consumption in 2010. On that occasion, he was sentenced to five years’ imprisonment and three strokes of the cane. In the present case, both parties agreed that it would only be necessary to impose the mandatory minimum sentence. I accepted this. The circumstances of the offending did not disclose any aggravating factors. Accordingly, I imposed a sentence of seven years’ imprisonment and six strokes of the cane. As I had imposed the mandatory minimum sentence, there was no room to apply a sentencing reduction on account of the accused’s plea of guilt for this charge.

The Offensive Weapon Charge

126    In the present case, the accused was found in unauthorised possession of a cane sword. However, there were no aggravating factors. He did not display the sword publicly or use it to intimidate or hurt someone. In Public Prosecutor v Teo Kok Wah [2022] SGDC 136, the District Court accepted (at [22]) that the median sentence for such an offence was six months’ imprisonment (the offender in that case was not liable to the mandatory caning of six strokes of the cane). The District Court in Public Prosecutor v Saseetharen s/o Subramaniam [2023] SGDC 205 described (at [21]) a sentence of six months’ imprisonment and six strokes of the cane for such an offence as “the usual tariff”. In my judgment, there was no reason to depart from the usual sentence.

127    Counsel for the Defence urged me to apply a 30% sentence reduction on account of the fact that the accused had pleaded guilty. I declined to do so. This was because the usual tariff of six months’ imprisonment and six strokes of the cane was established for plead guilty matters. The sentence would be higher in cases where an offender was convicted after trial. To apply a further reduction would give too much weight to the fact that the accused had pleaded guilty. As stated in the “Guidelines on Reduction in Sentences for Guilty Pleas” issued by the Sentencing Advisory Panel (at [10]), “the relevant reductions… are not intended to apply over and above the existing sentencing guidelines or precedents in cases where the offender has pleaded guilty” (emphasis in original).

128    Accordingly, I imposed a sentence of six months’ imprisonment and six strokes of the cane for this offence.

Aggregate sentence

129    Finally, I turn to the issue of how the sentences should run. Under section 307(1) of the CPC, this court must order the sentences for at least two offences to run consecutively. Subject to this limitation, how the sentences should run should be determined by the application of the one-transaction rule and the totality principle.

130    The one-transaction rule requires that where two or more offences are committed in the course of a single transaction, all sentences in respect of those offences should be concurrent rather than consecutive. The rationale for this rule was explained by the High Court in Mohamed Shouffee bin Adam v Public Prosecutor [2014] SGHC 34 (“Mohamed Shouffee”) (at [30] – [31]) as follows.

The better articulation of the rationale for the rule is found in the principle that consecutive sentences are not appropriate if the various offences involve a “single invasion of the same legally protected interest”… On this formulation, the real basis of the one-transaction rule is unity of the violated interest that underlies the various offences. Where multiple offences are found to be proximate as a matter of fact but violate different legally protected interests, then they would not, at least as a general rule, be regarded as forming a single transaction.

While it would be helpful to have regard to factors such as proximity of time, proximity of purpose, proximity of location, continuity of design and unity of protected interests, this exercise must ultimately be undertaken as a matter of common sense: Mohamed Shouffee (at [40]).

131    In the present case, I regarded the Methamphetamine Consumption Charge as distinct from the others. This was because the Methamphetamine Consumption Charge was committed in April 2019 while the others were committed in December 2019. I also regarded the Offensive Weapon Charge as distinct from the others. This was because the Offensive Weapon Charge, being unrelated to drugs, violated a far different legal interest from the others. However, I regarded the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge as forming a single transaction. In this regard, I was cognisant that there were differences between them; it was possible to argue that they violated different protected interests. However, it was also possible to argue that these three offences did not reflect significantly increased culpability on the part of the accused. As the High Court in Mohamed Shouffee also explained (at [42]), another way to consider this issue is to determine whether the offences reflect increased culpability on the part of the offender:

The enquiry into whether there is an invasion of the same underlying interest looks at things from the perspective of the victim. But there is another way of approaching the ultimate question of how the offender should be punished and that is to view it from the perspective of the accused. On this premise, the imposition of consecutive sentences would be appropriate if the second (or other subsequent) offence reflects increased culpability on the accused’s part even where, as a technical matter, the multiple offences might form part of the same transaction.

On this view, it would be appropriate to view the Attempted MDMA Trafficking Charge, the THC Possession Charge and the Drug Utensils Charge as forming a single transaction.

132    Having regard to the above, the provisional options available to this court insofar as the running of sentences was concerned were as follows.

(a)     To run the sentences for the Attempted MDMA Trafficking Charge, the Methamphetamine Consumption Charge and the Offensive Weapon Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 18 years and six months’ imprisonment and 22 strokes of the cane.

(b)     To run the sentences for the Attempted MDMA Trafficking Charge and the Methamphetamine Consumption Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 18 years’ imprisonment and 22 strokes of the cane.

(c)     To run the sentences for the Attempted MDMA Trafficking Charge and the Offensive Weapon Charge consecutively with all other sentences running concurrently. This would yield an aggregate sentence of 11 years and six month’s imprisonment and 22 stokes of the cane.

133    In my judgment, none of these options were appropriate.

(a)     The options set out in [132(a)] and [132(b)] would result in a sentence that was too high and disproportionate to the accused’s overall offending. In my view, it would violate the first limb of the totality principle. This principle requires a sentencing court to determine whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed: Mohamed Shouffee (at [54]). The most serious offence in the present case was the Attempted MDMA Trafficking Offence. Given the circumstances of the present offending, this offence would ordinarily attract about ten to 12 years’ imprisonment and ten to 12 strokes of the cane. An aggregate sentence of 18 years’ imprisonment and 22 strokes of the cane would be substantially above this.

(b)     The option set out in [132(c)] would be too lenient and disproportionate to the accused’s overall offending. It would also not serve the ends of specific deterrence. It must be recalled that in 2010, the accused was convicted of four charges. These comprise charges of drug possession for the purposes of trafficking, drug consumption and drug possession. He was sentenced to an aggregate sentence of 12 years’ imprisonment and 13 strokes of the cane. In the present case, the accused was convicted of five charges involving all of the above types of offences and more. For each type of drug offence which was committed both in 2010 and in the present case, I had imposed a higher individual sentence as compared to his sentence in 2010. This was for the purpose of specific deterrence. Having done so, it would be wholly incongruous that the aggregate term of imprisonment would be lower than that in 2010.

134    Accordingly, I departed from the one-transaction rule in the present case. I considered it condign to run the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge consecutively, even though they may possibly be considered to be part of the same transaction. As the High Court in Mohamed Shouffee explained (at [81(b)]:

The application of the one-transaction rule yields only a provisional exclusion. In certain circumstances, it may be necessary for the sentencing judge to impose two consecutive sentences even if they relate to a single transaction. This may, for instance, be so for such reasons as to give effect to a particular sentencing interest such as deterrence or to adequately capture the enhanced culpability of the offender or simply in order to ensure compliance with s 307(1) of the CPC. A sentencing judge who does this should articulate the reasons for it.

135    Running the sentences for the Attempted MDMA Trafficking Charge and the THC Possession Charge consecutively, with all the other sentences running concurrently, would yield an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane. In my judgment, such a sentence would be condign and proportionate to the accused’s overall offending.

136    As a final check, I applied the totality principle to consider whether such an aggregate sentence was: (i) substantially above the normal level of sentences for the most serious offence; and (ii) crushing and not in keeping with the accused’s past record and future prospects. As to the first limb, while the aggregate sentence was above the normal level of sentences for the Attempted MDMA Trafficking Charge, it was not substantially and unreasonably so. On the contrary, it was reflective of the overall offending and the number of offences the accused had committed. As to the second limb, there was no reason to think that the aggregate sentence was crushing. It was also in keeping with the accused’s past record.

Conclusion on sentence

137    For the above reasons, I imposed the following sentences.

The Attempted MDMA Trafficking Charge

11 years’ imprisonment (consecutive) and ten strokes of the cane

The THC Possession Charge

Three years and six months’ imprisonment (consecutive)

The Drug Utensils Charge

Three months’ imprisonment (concurrent)

The Methamphetamine Consumption Charge

Seven years’ imprisonment (concurrent) and six strokes of the cane

The Offensive Weapon Charge

Six months’ imprisonment (concurrent) and six strokes of the cane

Aggregate

14 years and six months’ imprisonment and 22 strokes of the cane



138    As the accused had been in remand for a significant period pending the conclusion of this matter, I ordered that his sentence be backdated to 16 April 2019 (date of his first arrest) and that his sentence should exclude the period when the accused was released on bail (being 26 October 2019 to 3 December 2019).

Conclusion

139    To summarise, after considering the evidence at trial, I convicted the accused of the Attempted MDMA Trafficking Charge, the THC Possession Charge, and the Drug Utensils Charge. I also convicted the accused of the Methamphetamine Consumption Charge and the Offensive Weapon Charge pursuant to his plea of guilt. Having considered all relevant factors and the submissions of parties, I imposed an aggregate sentence of 14 years and six months’ imprisonment and 22 strokes of the cane.

140    I record my appreciation to counsel for their assistance in this matter.

[note: 1]Notes of Evidence, day 9, page 2, lines 9-14.

[note: 2]Notes of Evidence, day 9, page 7, lines 25-26.

[note: 3]Prosecution’s Further Closing Submissions, section III.

[note: 4]Prosecution’s Closing Submissions at [41(c)].

[note: 5]Notes of Evidence, day 9, page 7, line 15.

[note: 6]P28 at [33].

[note: 7]P28 at [35].

[note: 8]P27 at [26].

[note: 9]P25.

[note: 10]P26 at [13], P27 at [26], P28 at [43], P30.

[note: 11]P44.

[note: 12]Notes of Evidence, day 9, page 8, lines 24-25.

[note: 13]Notes of Evidence, day 5, page 21, line 23 to page 22, line 6.

[note: 14]Notes of Evidence, day 5, page 21, line 16.

[note: 15]Notes of Evidence, day 5, page 9, line 14.

[note: 16]Notes of Evidence, day 5, page 11, lines 4-6.

[note: 17]Notes of Evidence, day 5, page 12, lines 28-29, page 13, lines 5-6, page 14, lines 1-3, page 14, lines 25-26, page 20, lines 20-23.

[note: 18]Notes of Evidence, day 5, page 21, line 24.

[note: 19]Notes of Evidence, day 5, page 21, lines 25-26, line 28, lines 30-31, page 22, line 3, line 7-8, line 12.

[note: 20]Prosecution’s Closing Submissions at [44(b)].

[note: 21]Notes of Evidence, day 5, page 51, lines 12-14.

[note: 22]P34-A.

[note: 23]Notes of Evidence, day 9, page 10, lines 15-17.

[note: 24]P28 at [36].

[note: 25]Notes of Evidence, day 9, page 7, line 15.

[note: 26]P28 at [33].

[note: 27]P28 at [33 (A5)].

[note: 28]P32 at [79].

[note: 29]Notes of Evidence, day 9, page 7, lines 14-22.

[note: 30]P32-A, photographs 9-12.

[note: 31]P32-A, photographs 13-14.

[note: 32]Notes of Evidence, day 9, page 17, lines 11-20.

[note: 33]P32 at [71].

[note: 34]P32-D, photograph 2.

[note: 35]Notes of Evidence, day 9, page 23, lines 10-15.

[note: 36]Notes of Evidence, day 9, page 2, lines 18-23.

[note: 37]Notes of Evidence, day 9, page 11, lines 26-29.

[note: 38]Notes of Evidence, day 9, page 5, lines 4-5.

[note: 39]Notes of Evidence, day 9, page 6, lines 23-31.

[note: 40]P25.

[note: 41]Notes of Evidence, day 9, page 24, lines 8-11.

[note: 42]P28 at [43].

[note: 43]P28 at [43].

[note: 44]Notes of Evidence, day 10, page 19, line 20.

[note: 45]Notes of Evidence, day 10, page 19, line 22.

[note: 46]Notes of Evidence, day 10, page 22, lines 13-14.

[note: 47]Notes of Evidence, day 9, page 67, lines 7-12.

[note: 48]Notes of Evidence, day 9, page 67, line 26.

[note: 49]Notes of Evidence, day 9, page 68, line 2.

[note: 50]P26 at [8].

[note: 51]P45 at [16].

[note: 52]P26 at [9].

[note: 53]Notes of Evidence, day 9, page 49, lines 3-18.

[note: 54]Notes of Evidence, day 9, page 48, line 32.

[note: 55]Notes of Evidence, day 9, page 50, line 7.

[note: 56]Notes of Evidence, day 9, page 40, line 31.

[note: 57]Notes of Evidence, day 9, page 43, line 8.

[note: 58]Notes of Evidence, day 9, page 42, line 28.

[note: 59]Notes of Evidence, day 9, page 51, line 21.

[note: 60]Notes of Evidence, day 9, page 61, line 30.

[note: 61]Notes of Evidence, day 9, page 12, line 24.

[note: 62]P32-A, photo 3.

[note: 63]Notes of Evidence, day 9, page 2, lines 18-23.

[note: 64]P32 at [70].

[note: 65]Notes of Evidence, day 9, page 13, line 31.

[note: 66]Notes of Evidence, day 10, page 15, line 18.

[note: 67]Defence’s Reply to Prosecution’s Clarification for Further Closing Submissions at [9].

[note: 68]Statement of Agreed Facts at [6].

[note: 69]Notes of Evidence, day 10, page 36, lines 12 and 18.

[note: 70]Statement of Agreed Facts at [6].

[note: 71]Notes of Evidence, day 10, page 46, line 10.

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Driving without due care and attention – Grievous hurt"],"date":"2024-10-30","court":"District Court","case-number":"District Arrest Case No. 918156 of 2024","title":"Public Prosecutor v Mohamad Nazrulhaqim Bin Johari","citation":"[2024] SGDC 283","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32422-SSP.xml","counsel":["Jheong Siew Yin (Attorney-General's Chambers) for the Prosecution","Muhammad Aadil bin Dafir (I.R.B. Law LLP) for the Defence."],"timestamp":"2024-11-07T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Mohamad Nazrulhaqim Bin Johari

Public Prosecutor v Mohamad Nazrulhaqim Bin Johari
[2024] SGDC 283

Case Number:District Arrest Case No. 918156 of 2024
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jheong Siew Yin (Attorney-General's Chambers) for the Prosecution; Muhammad Aadil bin Dafir (I.R.B. Law LLP) for the Defence.
Parties: Public Prosecutor — Mohamad Nazrulhaqim Bin Johari

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Driving without due care and attention – Grievous hurt

30 October 2024

District Judge Shawn Ho:

Introduction

1       Mr Mohamad Nazrulhaqim Bin Johari pleaded guilty to one charge of riding without due care and attention. By failing to keep a proper lookout for other road users, his vehicle collided with another motorcycle and caused grievous hurt to two people.

2       The Defence sought a fine. It cited Erh Zhi Huang Alvan v Public Prosecutor (MA 9204 of 2022) where a fine was given when the victim suffered a traumatic amputation of the right little finger.

3       I disagreed with the Defence’s submissions for a fine.

4        Erh had to be placed in proper perspective.

5       First, while it was undisputed that permanent injury was caused to the victim in Erh, there was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work: Chen Song v Public Prosecutor [2024] SGHC 129 at [165].

6       The victim in Erh also suffered a right-sided clavicle fracture, though it was not apparent that there was any surgical intervention required for this injury. While the victim was given 57 days of hospitalisation leave, this included only one day of hospitalisation, as he was discharged the day after the accident occurred: Public Prosecutor v Hee Kwee Choy [2024] SGDC 230 at [56].

7       In the present case, there were multiple victims:

(a)     Grievous hurt was visited upon two victims — the 3rd victim suffered a right 5th metacarpal proximal shaft fracture to his right hand and was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave.[note: 1]

(b)     The 5th victim suffered a left pubic symphysis fracture.[note: 2]

(c)     The 2nd victim suffered injuries.[note: 3]

8       In addition to bodily injury, property damage was caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 4]

9       Second, Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165]. Erh’s case had no culpability factors.

10     In contrast, there was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

11     This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 5]

12     The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 6]

13     The Prosecution tried to distinguish Erh by stating that his sentence was based on the framework in Sue Chang (instead of Chen Song): Chen Song at [165] and [167].

14     However, as the High Court observed in Chen Song at [120], applying both frameworks would likely result in the same or similar outcomes. A similar observation was made by the High Court in Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [3] and [15] and in Loh Kaine Tong Nicholas v Public Prosecutor (HC/MA 9037/2023/01).

15     All things considered, Mr Mohamad Nazrulhaqim was imprisoned for 4 months and disqualified from driving for 5 years.

16     I set out my reasons. There was no appeal.

Charge

17     The Accused pleaded guilty to the following charge:

You, Mohamad Nazrulhaqim Bin Johari, Male/ 27 years old, Malaysian, are charged that you, on 8 June 2023, at or about 8.12 a.m., along Bukit Timah Expressway towards Woodlands, Singapore, did ride a Malaysia-registered motorcycle bearing registration number VHC5971, on a road without due care and attention, to wit, by failing to keep a proper lookout ahead for other road users, resulting in a collision with a Malaysia registered motorcycle bearing registration number VGD2971 who was ahead of you, and causing grievous hurt to the rider of VGD2971, namely, one Siva Narayanan, and your pillion, namely, one Muhammad Izzatfahmi Bin Mohd Noh, by such driving, you have thereby committed an offence under Section 65(1)(a) punishable under Section 65(3)(a) read with Section 65(6)(d) of the Road Traffic Act 1961 (“the Act”).[note: 7]

18     Two charges were taken into consideration for sentencing. They were for riding without due care and attention under s 65(1)(a) punishable under s 65(4)(a) of the Act[note: 8] and under s 65(1)(a) punishable under s 65(5)(a) of the Act.[note: 9]

Statement of facts

I. Introduction

19     The accused is Mohamad Nazrulhaqim Bin Johari, a 27-year-old male Malaysian (“Accused”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number VHC5971 (“Motorcycle VHC5971”).[note: 10]

20     The victims are:

(a)     Lee Pei Jin, Joanna, a 36-year-old female Singaporean (“1st victim”). At the time of the accident, she was driving a motorcar bearing the registration number SNG8856S.

(b)     Yogeswaran A/L Doraisamy, a 34-year-old male Malaysian (“2nd victim”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number JVK6719.

(c)     Siva Narayanan, a 43-year-old male Malaysian (“3rd victim”). At the time of the accident, he was riding a Malaysia-registered motorcycle bearing the registration number VGD2971.

(d)     Chong Chin Lin, a 68-year-old male Singaporean (“4th victim”). At the time of the accident, he was driving a taxi bearing the registration number SHB6368U.

(e)     Muhammad Izzatfahmi Bin Mohd Noh, a 22-year-old male Singaporean (“5th victim”). The 5th victim is a friend of the Accused, and he was riding pillion on the Motorcycle VHC5971 at the time of the accident.[note: 11]

II. Facts relating to the 1st charge (DAC 918156 2024)

21     On 8 June 2023, at or about 8.12 a.m., the Accused was riding the Motorcycle VHC5971 with the 5th victim as pillion on the second lane of a four-lane road along the Bukit Timah Expressway towards Woodlands. The Accused failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, which had been travelling in front of the Accused, causing the Accused’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, the Accused also collided into the rear and side of the 2nd victim’s motorcycle, which had also been travelling in front of him. In so doing, the Accused had ridden his motorcycle on a road without due care and attention.[note: 12]

22     The impact of the collision caused the 2nd victim to fall, and the 3rd victim to collide into the taxi driven by the 4th victim on the rightmost lane. The Accused lost control of the Motorcycle VHC5971 which slid forward and resulted in both the Accused and the 5th victim colliding into the rear of the motorcar driven by the 1st victim, who had just completed a lane change from the rightmost lane to the second lane of the Bukit Timah Expressway towards Woodlands.[note: 13]

23     At the time of the accident, the weather was fine, the road surface was dry, the traffic flow was moderate, and visibility was clear.[note: 14]

24     The accident was caught on in-car camera footages of the 1st victim (Annex A) and the 4th victim (Annex B).[note: 15]

25     As a result of the accident, grievous hurt was caused to the 3rd victim and the 5th victim, who were both conveyed to the Khoo Teck Puat Hospital (“KTPH”) for treatment. In particular:

(a)     The 5th victim suffered: (i) a left pubic symphysis fracture; (ii) full thickness laceration to his left big toe; and (iii) multiple abrasions to his body.

(b)     The 3rd victim suffered: (i) a right 5th metacarpal proximal shaft fracture to his right hand; (ii) multiple superficial abrasions over his left hand, wrist, forearm and toes; and (iii) full thickness abrasion wounds over his right knee and left elbow. The 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.

(c)     Neither the 5th victim nor the 3rd victim suffered from permanent disabilities as a result of the accident.

(d)     The respective medical reports of the 5th victim and the 3rd victim are enclosed at Annex C and Annex D.[note: 16]

26     In addition to bodily injury, property damage was also caused to the 3rd victim’s Malaysia-registered motorcycle bearing the registration number VGD2971. In particular, the said motorcycle sustained cracks, and the right- side mirror was knocked off.[note: 17]

27     The Accused initially claimed that the accident was attributable to an unknown car travelling on the rightmost lane which, by appearing to want to make a left lane change, caused the Accused to be fearful and he chose to accelerate instead of braking to avoid the said car. However, police investigations revealed no objective evidence supporting the Accused’s claim of the said unknown car.[note: 18]

28     Instead, the fact remains that the 2nd victim and 3rd victim were travelling in front of the Accused, and this would have been obvious to the Accused. By failing to keep a proper lookout ahead while riding the Motorcycle VHC5971 and colliding into, inter alia, the 3rd victim who was travelling ahead, the Accused had ridden the Motorcycle VHC5971 on a road without due care and attention, and caused grievous hurt to his pillion ride, the 5th victim, and the 3rd victim, by such driving. Accordingly, the Accused had committed an offence under s 65(1)(a) of the Road Traffic Act 1961 which is punishable under s 65(3)(a) read with s 65(6)(d) of the said Act.[note: 19]

III. TIC charges

29     The Accused also faces two other TIC charges, in particular:

(a)     The 2nd Charge (DAC 918157 of 2024) concerns the offence under s 65(1)(a) punishable under s 65(4)(a) of the Road Traffic Act 1961 for driving without due care and attention on a road and causing hurt to the 2nd victim, who suffered superficial abrasions and was placed on 2 days of medical leave.

(b)     The 3rd Charge (DAC-918158-2024) concerns the offence under s 65(1)(a) punishable under s 65(5)(a) of the Road Traffic Act 1961 for driving without due care and attention on a road which resulted in his collision with the motorcar driven by the 1st victim and the 3rd victim’s collision with the taxi driven by the 4th victim. Fortunately, the 1st victim and the 4th victim did not sustain any injuries from the accident.[note: 20]

30     The Accused admits to the above, and stands charged accordingly.[note: 21]

Prescribed punishment

31     The prescribed punishment for causing grievous hurt under s 65(1) punishable under s 65(3)(a) read with s 65(6)(d) of the Act is:

(a)      s 65(3)(a): a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both;

(b)      s 65(6)(d): for an offender or a repeat offender in s 65(3)(a) or s 65(3)(b) – a driving disqualification for a period of not less than 5 years.

32     The two components of the overall sentence generally are not to be regarded as mutually compensatory. Hence, an increase in the fine or custodial sentence should not be taken to mandate the imposition of a reduced disqualification period than would otherwise have been ordered: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

33     While the different types of punishment are not fungible, there is a positive correlation between the length of the imprisonment term and/or quantum of the fine imposed and the period of the disqualification ordered. This direct relationship arises from the overlapping considerations of harm and culpability underlying the determination of the length of imprisonment or quantum of fine, and the length of the disqualification period: Chen Song at [141].

34     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

35     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

36     The Prosecution asked for 4 to 5 months’ imprisonment and a driving disqualification of 5 years.[note: 22]

37     The proposed custodial sentence was derived from applying the sentencing bands approach set out in Chen Song at [134] for careless driving offences causing grievous hurt punishable under s 65(3)(a) of the Act, under which the Prosecution submitted that the present offence is one of greater harm and lower culpability situated in the lower range of Band 2 (between 6 and 12 months’ imprisonment).[note: 23]

38     In particular:

(a)     Mr Mohamad Nazrulhaqim had a lower culpability as there is one applicable culpability factor, namely, his high degree of carelessness. It would have been apparent to him that the 3rd victim was travelling on the road in front of him. For Mr Mohamad Nazrulhaqim to have nevertheless driven directly into and collided with the 3rd victim, is indicative of his high degree of carelessness and inattention to the road.[note: 24]

(b)     Mr Mohamad Nazrulhaqim had caused greater harm as there are at least two applicable harm factors, namely, the multiple injuries that had been caused to two separate victims, and which injuries had impacted the victims’ quality of life. This is especially so for the 3rd victim who had to be warded for 4 days and placed on 69 days of hospitalisation leave for the injuries sustained from the accident.[note: 25]

(c)     The offence is situated at the lower range of Band 2, as there was some property damage caused to the 3rd victim’s motorcycle which were not extensive.[note: 26]

39     In light of the above, the Prosecution submitted that the proposed sentence of between 6 and 7 months’ imprisonment, which is at the lower range of Band 2, is appropriate. However, as the Chen Song sentencing bands framework applies to an offender who elects to claim trial, and Mr Mohamad Nazrulhaqim had indicated his guilty plea within Stage 1 of the Guidelines on Reduction in Sentences for Guilty Pleas, the Prosecution factored in a reduction of about 30% to arrive at a custodial sentence of between 4 and 5 months’ imprisonment.[note: 27]

Mitigation plea

40     The Defence asked for a fine of $4000 and driving disqualification of 5 years. Alternatively, a short detention order (“SDO”) of 2 weeks was sought.[note: 28]

41     Mr Mohamad Nazrulhaqim has been co-operative after his arrest and has facilitated with investigations. He has chosen to plead guilty early. He is deeply remorseful of his actions.[note: 29]

42     He has no related antecedents. This is his first brush with the law.[note: 30]

43     Additionally, he is 28 years old this year. His mother is critically ill and his father is suffering from cancer. He needs to financially support his parents, and an imprisonment term would greatly cripple the care of his parents who are dependent on him.[note: 31]

44     For the injuries suffered by the 3rd and 5th victims, the nature and severity of injury are not complex, the number of injuries is not excessive, no surgical intervention was necessary, the victims were not treated at high dependency wards or intensive care units and the location of the injuries were not at vulnerable locations.[note: 32]

45     The injuries caused to the victims are not permanent.[note: 33]

46     The impact of the injuries on the victims’ quality of life was not severe. The 3rd victim was warded for 4 days. It is unclear how many days the 5th victim was warded. Neither the 5th victim nor the 3rd victim suffered from permanent disabilities because of the accident and can carry out daily tasks and maintain their livelihoods.[note: 34]

47     Mr Mohamad Nazrulhaqim was on a motorcycle, the roads were clear, the accident occurred pre-peak hour traffic at 8.12am, there were no pedestrians on the road at the relevant time and there were no particular vulnerabilities. Hence, the potential harm is low.[note: 35]

48     In addition to bodily injury, property damage was also caused to the 3rd victim’s motorcycle. In particular, the motorcycle sustained cracks, and the right-side mirror was knocked off. The property damage as reflected above was minimal.[note: 36]

49     The primary harm factors are limited to 0 or 1 if we consider that there were 2 victims, and “lesser harm” has been caused by Mr Mohamad Nazrulhaqim.[note: 37]

50     Mr Mohamad Nazrulhaqim possesses a lower culpability. He did not exhibit any form of dangerous driving nor did he flout traffic rules or regulations. He did not possess a high degree of carelessness. There was no prolonged or sustained period of inattention but rather it was a momentary lapse of attention.[note: 38]

51     The culpability factors are limited to 0 or 1 and as such, Mr Mohamad Nazrulhaqim possesses a lower culpability.[note: 39]

52     The present offence is one of lesser harm and lower culpability that falls under Band 1 and as such a fine would be appropriate.[note: 40]

53     In Erh’s case, the victim suffered far more severe injuries such as (a) a traumatic amputation of the right little finger; and (b) a right-sided clavicle fracture. In comparison, in the present case, the victim’s injuries were less severe.[note: 41]

54     The victim in Erh suffered permanent injury in the form of an amputated right little finger. Here, there were no permanent injuries to the victims.[note: 42]

55     In the alternative, given that this was Mr Mohamad Nazrulhaqim’s first brush with the law and he is not a recalcitrant offender, a SDO of 2 weeks would be appropriate.[note: 43]

Sentencing

The Law

(1)   Legislative history of s 65 of the Road Traffic Act

56     As was observed by Sundaresh Menon CJ in Wu Zhi Yong v Public Prosecutor [2021] SGHC 261 at [15] (albeit in the related context of s 64 of the Act), the Road Traffic (Amendment) Act 2019 (Act 19 of 2019) (“Amendment Act”) envisaged a new scheme of penalties for careless or inconsiderate driving in a tiered structure calibrated according to the degree of hurt caused. This is codified in the Act as ss 65(2) to 65(5). The maximum punishments which may be imposed for each category of harm increase concomitantly with the seriousness of the harm caused; this translates into wider ranges of punishments where more serious harm is occasioned (Sue Chang v Public Prosecutor [2022] SGHC 176 at [38]).

57     For instance, where death is caused, s 65(2)(a) provides that a first-time offender is liable to a fine not exceeding $10,000 or to imprisonment for a term not exceeding three years or to both. In contrast, the residual category (where no actual physical harm is caused, but which includes cases of non-personal injury or potential harm) captured in s 65(5)(a) provides that a first-time offender is liable to a fine not exceeding $1,500 or to imprisonment for a term not exceeding six months or to both (Sue Chang at [38]).

58     By tiering the punishment provisions in accordance with the type of harm suffered, Parliament has given clear expression to the need to give explicit consideration to the outcomes that result from instances of careless or inconsiderate driving. This is a stark departure from the structure of s 65 of the pre-2019 Act, where there was a single range of punishment with no differentiation based on the type and/or degree of harm caused (Sue Chang at [39]).

59     In addition, while Parliament has retained the distinction between reckless or dangerous driving under s 64 of the Act and careless or inconsiderate driving under s 65 of the Act, this distinction has been made more pronounced through the refining of the punishment provisions. These two provisions reflect the differing circumstances under which an irresponsible driving offence can occur. The former offence (s 64) is regarded as being more serious than the latter (s 65), reflecting primarily the differing levels of culpability of the offenders. Accordingly, the current architecture of the Act concerning irresponsible driving offences tiers the punishment provisions according to both harm and culpability, not dissimilar to the Penal Code (Sue Chang at [40]).

(2)   Driving disqualification order

60     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

61     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

62     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

63     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Road Traffic Act.

Decision on sentence

64     For driving without due care or attention causing grievous hurt, the applicable case is Chen Song v Public Prosecutor [2024] SGHC 129.

Framework in Chen Song

65     A quantitative factors-based approach, where the indicative sentencing band is determined at the first step, based on the number of offence-specific harm and culpability factors is especially useful: Chen Song at [123].

66     “Lesser harm” is caused and the offender’s culpability is deemed as “lower culpability” where at most one harm or culpability factor applies in respect of each category: Chen Song at [123].

67     “Greater harm” would be caused and the offender’s culpability deemed as “higher culpability” where there are 2 or more harm and culpability factors respectively: Chen Song at [123].

68     This is a general guideline which is not to be applied mechanistically in every case. The foremost inquiry is to assess holistically whether the totality of the harm suffered by the victim should be classified as either “greater harm” or “lesser harm” and whether the offender’s culpability considered as a whole should be classified as either “lower culpability” or “higher culpability”: Chen Song at [123].

(1)   Harm factors

69     Primary harm factors are factors which pertain directly to the bodily injury suffered by the victim(s) in each case. These factors include:

(a)     the nature and location of the injuries;

(b)     the degree of permanence of the injuries; and

(c)     the impact of the injuries: Chen Song at [124].

70     The three broad primary harm factors are:

(a)      Nature and location of the injury: This factor focuses on the precise nature and the location of the injury. This requires a consideration of:

(i)       the nature and severity of injury (eg, simple or complex and extent of injury, etc);

(ii)       the number of injuries;

(iii)       whether surgical intervention was necessary (or whether the injuries were treated conservatively);

(iv)       the disposition of the victim post-surgery (eg, general ward, high dependency or intensive care unit); and

(v)       the location of the injury (eg, vulnerable location).

(b)      Degree of permanence: This factor considers whether the injury or injuries caused to the victim are permanent or transient. Permanent injuries include loss of a limb or permanent privation of the sight of either eye or the hearing of either ear, etc.

(c)      Impact of injury: This factor contemplates the impact of the injury on the victim’s quality of life. Here, considerations of:

(i)       the duration of stay in the hospital/rehabilitation centre;

(ii)       duration of any hospitalisation/medical leave;

(iii)       ability to carry out daily tasks and maintain livelihood; and

(iv)       duration of rehabilitation (if any), are relevant: Chen Song at [127].

71     Nevertheless, I bore in mind that there may be cases where even if two or more primary harm factors apply, if they present themselves to a limited degree, the court may nevertheless consider that “lesser harm” had been caused based on a holistic assessment of the harm caused: Chen Song at [127].

72     Secondary harm factors are unrelated to the physical injury suffered by the victim(s), but which nonetheless go towards the extent of harm caused in a particular case. These factors include:

(a)     property damage; and

(b)     potential harm: Chen Song at [125].

73     Consideration of actual harm focuses on the moment of a collision. Potential harm looks at the wider circumstances before and after a collision (Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [57]).

74     The level of potential harm may be assessed against facts such as the condition of the road, the volume of traffic or number of pedestrians actually on or which might reasonably be expected to be on the road at the relevant time, the speed and manner of driving, visibility at the relevant time, the type of vehicle, and any particular vulnerabilities (eg, a truck or car colliding into a motorcycle or pedestrian). It was observed that these relate to the circumstances of driving that could increase the danger posed to road users (Wu Zhi Yong at [36(a)]): Chen Song at [129].

75     It would only be appropriate to have regard to potential harm if there was a sufficient likelihood of the harm arising and this in turn should be assessed in the light of the gravity of the harm risked (Neo Ah Luan v Public Prosecutor [2018] 5 SLR 1153 at [67]): Chen Song at [129].

76     I was mindful that in assessing the level of harm or potential harm, the sentencing court should be careful not to double-count any factors which may already have been taken into account in assessing the level of culpability: Ye Lin Myint v Public Prosecutor [2019] 5 SLR 1005 at [58] (see also Andrew Ashworth, Sentencing and Criminal Justice (6th Ed, 2015, Cambridge University Press) at [4.3] and [4.5]).

77     Each primary harm factor would count as one offence-specific factor going towards harm. However, where a secondary harm factor presents itself in a significant manner, this should be considered in the determination of where the particular offence falls within the indicative sentencing band: Chen Song at [125].

78     In the present case, there were two primary harm factors — nature and location of the injury, and impact of injury.

79     For the nature and location of injury, the 3rd victim suffered:

(a)     a right 5th metacarpal proximal shaft fracture to his right hand,

(b)     multiple superficial abrasions over his left hand, wrist, forearm and toes; and

(c)     full thickness abrasion wounds over his right knee and left elbow.[note: 44]

(d)     He underwent a right knee and left elbow wound debridement on 10 June 2023.[note: 45]

80     The 5th victim suffered:

(a)     a left pubic symphysis fracture,

(b)     full thickness laceration to his left big toe; and

(c)     multiple abrasions to his body.[note: 46]

81     The victims’ injuries were not permanent. All wounds of the 5th victim were well-healed.[note: 47]

82     For the impact of the injuries, the 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023. Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.[note: 48]

83     There was a secondary harm factor as property damage was caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 49]

(2)   Culpability factors

84     A non-exhaustive list of factors which each constitute 1 offence-specific factor going towards culpability is as follows (Chen Song at [131]):

(a)      Any form of dangerous driving behaviour. For instance:

(i)       speeding;

(ii)       driving against traffic;

(iii)       driving when not fit to drive;

(iv)       driving under the influence of alcohol or drugs;

(v)       sleepy driving;

(vi)       driving while using a mobile phone;

(vii)       swerving in and out of lanes;

(viii)       using a vehicle in a dangerous fashion; and

(ix)       street racing.

(b)      Flouting of traffic rules and regulations. For instance:

(i)       failing to stop at a stop line;

(ii)       failing to conform to traffic signal;

(iii)       not forming up correctly to execute a turn;

(iv)       changing lanes across a set of double white lines/chevron markings; and

(v)       making an illegal U-turn/right turn.

(c)      High degree of carelessness: This is demonstrated where there was a prolonged or sustained period of inattention (as opposed to a momentary lapse of attention), and where the offender was deliberately cavalier about certain mitigatable risks. As stated in Sue Chang at [95], it would also be relevant to consider the extent to which the offender’s distraction was avoidable and the extent to which the offender’s misjudgment was reasonable.

85     There was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

86     This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 50]

87     The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 51]

(3)   Sentencing framework for careless driving offences causing grievous hurt punishable under s 65(3)(a)

88     We apply the following sentencing framework for careless driving offences causing hurt punishable under s 65(3)(a) where the offender elects to claim trial (Chen Song at [134]).

89     First, the court is to identify the number of offence-specific factors under the broad categories of “harm” and “culpability” (Chen Song at [134(a)]).

90     Second, based on the number of offence-specific factors present, the court is to determine whether the harm caused is “lesser harm” or “greater harm” and whether the culpability of the offender is “lower culpability” or “higher culpability” and thereafter arrive at the sentencing band the offence falls within (Chen Song at [134(b)]).

91     “Lesser harm” is caused, and the offender’s culpability is deemed as “lower culpability” where there are 0–1 harm or culpability factors respectively. “Greater harm” is caused, and the offender’s culpability is deemed as “higher culpability” where there are 2 or more harm or culpability factors respectively (Chen Song at [134(b)]).

Band

Circumstances

Sentencing range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability

Or

Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



92     Third, after determining the indicative sentencing band that the offence falls within, the court should identify an indicative starting point sentence within that range, taking into account: (a) all the primary harm factors and the culpability factors identified; and (b) the secondary harm factors (Chen Song at [134(c)]).

93     Fourth, the court is to make adjustments to the starting point to take into account the usual gamut of offender-specific aggravating and mitigating factors (Chen Song at [134(d)]).

94     The High Court stated that with reference to the proposed sentencing bands for s 65(3)(a), the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present. Therefore, for Band 1 cases, fines would ordinarily be reserved for cases where 0–1 offence-specific harm and/or culpability factors are present (Chen Song at [137]).

95     A mandatory 5-year disqualification period applies for offences punishable under s 65(3), “unless the court for special reasons thinks fit to not order or to order otherwise”: s 65(6)(d) of the RTA (Chen Song at [138]).

96     In the present case, there were two primary harm factors (nature and location of the injury, and impact of injury) and one culpability factor (high degree of carelessness).

97     Given the presence of two primary harm factors, the harm caused was greater harm. Mr Mohamad Nazrulhaqim’s culpability is lower culpability. The applicable sentencing band would be Band 2, with the sentencing range of 6 months’ to 1 year’s imprisonment.

98     Taking into account all the harm and culpability factors, the indicative starting point sentence would be at the lower end of Band 2, viz. about 6 months’ imprisonment.

99     After taking into account the offender-specific aggravating and mitigating factors, including his early plea of guilt, the custodial sentence was moderated downwards to 4 months’ imprisonment.

100     TIC charges. The effect of taking into consideration outstanding charges is to enhance the sentence that would otherwise have been imposed for the proceeded charges: Public Prosecutor v UI [2008] 4 SLR(R) 500 at [38] (see also s 148 of the Criminal Procedure Code). In the present case, the 2nd victim suffered injuries.[note: 52]

101     Clean record. Mr Mohamad Nazrulhaqim had a clean driving record.

102     Guilty plea. The SAP Guidelines for Guilty Pleas applied. I gave due weight to the guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

103    Given the multiple victims’ injuries, the damage to the motorcycles, and the high degree of carelessness by Mr Mohamad Nazrulhaqim, the starting point was about 6 months’ imprisonment. After a discount of 30% under the SAP Guidelines, the custodial sentence was rounded down to 4 months’ imprisonment.

104     Cooperation with the authorities. I gave due weight to Mr Mohamad Nazrulhaqim’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

(4)    Erh Zhi Huang Alvan’s Case

105     Erh Zhi Huang Alvan v Public Prosecutor (“Erh”) (MA 9204 of 2022) was one of the cases heard in the Chen Song decision. The High Court allowed the appeal in Erh and substituted a sentence of 10 weeks’ imprisonment with a fine of $4,000. There was also the minimum 5-year driving disqualification.

106    The offender in Alvan Erh was driving his motor car along an expressway. Due to heavy traffic, the car travelling in front of Erh braked and came to a stop. Consequently, Erh abruptly switched lanes, failing to keep a proper lookout. This led to a collision between Erh’s motor car and the victim who was travelling on his motorcycle: Chen Song at [163].

107    In relation to harm, the victim in Erh suffered from: (a) a traumatic amputation of the right little finger; and (b) a right-sided clavicle fracture. He was given hospitalisation leave of 58 days: Chen Song at [165].

108    It was undisputed that permanent injury was caused to the victim in Erh, although there was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work. Therefore, in the High Court’s view, taking into consideration also the victim’s right-sided clavicle fracture, the damage caused to his motorcycle and the potential harm arising from his abrupt lane-change on the expressway during peak hour, this would place the harm caused in the higher end of the “low” category. This was so bearing in mind that the range of injuries classified as grievous hurt is broad and are by their nature serious: Chen Song at [165].

109    Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165] (see also Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [14]).

110    Based on the High Court’s determination that the harm caused was at the higher end of low and Erh’s culpability was low, the indicative sentence ought to be a fine based on the Sue Chang framework: Chen Song at [167].

111    After taking into account that Erh pleaded guilty and readily co-operated with the authorities, the High Court allowed the appeal in MA 9204 of 2022 and substituted Erh’s sentence of 10 weeks’ imprisonment with a fine of $4,000: Chen Song at [169].

112    I noted that in Erh’s case:

(a)     There was no evidence before the High Court that the victim would suffer from any permanent hand disability as a result and he was assessed to be likely to be able to return to work: Chen Song at [165].

(b)     Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165].

113    While the victim in Erh suffered a permanent loss of his little finger, the High Court noted that there was no indication of any permanent disability that resulted from this injury and that he had in fact been medically assessed as being likely to be able to return to work. Apart from this, he also suffered a right-sided clavicle fracture, though it was not apparent that there was any surgical intervention required for this injury. While the victim in Erh was given 57 days of hospitalisation leave, this included only one day of hospitalisation, as he was discharged the day after the accident occurred (Public Prosecutor v Hee Kwee Choy [2024] SGDC 230 at [56]).

114    In the present case, the 3rd victim suffered:

(a)     a right 5th metacarpal proximal shaft fracture to his right hand,

(b)     multiple superficial abrasions over his left hand, wrist, forearm and toes; and

(c)     full thickness abrasion wounds over his right knee and left elbow.

(d)     The 3rd victim was warded for 4 days in KTPH’s Orthopaedic surgery department from 8 June 2023 to 11 June 2023.

(e)     Thereafter, he was placed on 69 days of hospitalisation leave from 11 June 2023 to 18 August 2023.[note: 53]

115    The 5th victim suffered:

(a)     a left pubic symphysis fracture,

(b)     full thickness laceration to his left big toe; and

(c)     multiple abrasions to his body.[note: 54]

116    In addition to bodily injury, property damage was also caused to the 3rd victim’s motorcycle. His motorcycle sustained cracks and the right-side mirror was knocked off.[note: 55]

117    Furthermore, Erh’s culpability was low. His offending conduct was simply a manifestation of the basic elements of the careless driving offence: Chen Song at [165] (see also Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [14]).

118     Erh was driving his motor car along an expressway. Due to heavy traffic, the car travelling in front of Erh braked and came to a stop. Consequently, Erh abruptly switched lanes, failing to keep a proper lookout. This led to a collision between Erh’s motor car and the victim who was travelling on his motorcycle: Chen Song at [163].

119     Erh’s case had no culpability factors.

120    In contrast, there was one culpability factor here. There was a high degree of carelessness, which was not a momentary lapse of attention, and where the offender was deliberately cavalier about certain mitigatable risks: Chen Song at [131(c)].

121    This was because along the Bukit Timah Expressway, Mr Mohamad Nazrulhaqim failed to keep a proper lookout ahead for other road users and drove directly into the motorcycle of the 3rd victim, causing Mr Mohamad Nazrulhaqim’s motorcycle to collide into the rear area of the 3rd victim’s motorcycle. As a direct consequence, Mr Mohamad Nazrulhaqim also collided into the rear and side of the 2nd victim’s motorcycle.[note: 56]

122    The 2nd victim and 3rd victim had been travelling in front of Mr Mohamad Nazrulhaqim, and this would have been obvious to him. By failing to keep a proper lookout ahead while riding his motorcycle and colliding into, inter alia, the 3rd victim who was travelling ahead, Mr Mohamad Nazrulhaqim had ridden his motorcycle without due care and attention, and caused grievous hurt to his pillion rider, the 5th victim, and the 3rd victim, by such driving.[note: 57]

123    The Prosecution tried to distinguish Erh by stating that Erh’s sentence was based on the framework in Sue Chang (instead of Chen Song): Chen Song at [165] and [167].

124    However, as the High Court observed in Chen Song at [120], applying both frameworks would likely result in the same or similar outcomes. A similar observation was made by the High Court in Adri Satryawan Pratama v Public Prosecutor [2024] SGHC 258 at [3] and [15] and in Loh Kaine Tong Nicholas v Public Prosecutor (HC/MA 9037/2023/01).

125    Finally, I deal with the Defence’s alternative submission of a 2-week SDO. When he was sentenced, the offender was 27 years old (and 26 years old at the time of the offence), and a working adult.[note: 58] Notwithstanding his early plea of guilt and his clean driving record, I was of the view that rehabilitation did not outweigh the principles of deterrence and retribution in the present case given the high degree of carelessness and the nature of the offence, in particular, the serious injuries suffered by multiple victims (Chen Song at [164]).

Conclusion

126    For the above reasons, Mr Mohamad Nazrulhaqim was imprisoned for 4 months and disqualified from driving for 5 years.

127    I am grateful for the hard work and submissions of both sides.

[note: 1]SOF at [7(b)].

[note: 2]SOF at [7(a)].

[note: 3]DAC 918157 of 2024.

[note: 4]SOF at [8].

[note: 5]SOF at [3].

[note: 6]SOF at [10].

[note: 7]DAC 918156 of 2024.

[note: 8]DAC 918157 of 2024.

[note: 9]DAC 918158 of 2024.

[note: 10]SOF at [1].

[note: 11]SOF at [2].

[note: 12]SOF at [3].

[note: 13]SOF at [4].

[note: 14]SOF at [5].

[note: 15]SOF at [6].

[note: 16]SOF at [7].

[note: 17]SOF at [8].

[note: 18]SOF at [9].

[note: 19]SOF at [10].

[note: 20]SOF at [11].

[note: 21]SOF at [12].

[note: 22]Prosecution’s Skeletal Address on Sentence at [1] and [5].

[note: 23]Prosecution’s Skeletal Address on Sentence at [3].

[note: 24]Prosecution’s Skeletal Address on Sentence at [3(a)].

[note: 25]Prosecution’s Skeletal Address on Sentence at [3(b)].

[note: 26]Prosecution’s Skeletal Address on Sentence at [3(c)].

[note: 27]Prosecution’s Skeletal Address on Sentence at [4].

[note: 28]Mitigation Plea at [1], [27], [30]-[31].

[note: 29]Mitigation Plea at [5].

[note: 30]Mitigation Plea at [6].

[note: 31]Mitigation Plea at [7].

[note: 32]Mitigation Plea at [11.1].

[note: 33]Mitigation Plea at [11.2].

[note: 34]Mitigation Plea at [11.3].

[note: 35]Mitigation Plea at [12.1].

[note: 36]Mitigation Plea at [12.1].

[note: 37]Mitigation Plea at [13].

[note: 38]Mitigation Plea at [14].

[note: 39]Mitigation Plea at [15].

[note: 40]Mitigation Plea at [17].

[note: 41]Mitigation Plea at [23].

[note: 42]Mitigation Plea at [24].

[note: 43]Mitigation Plea at [28].

[note: 44]SOF at [7(b)].

[note: 45]Medical report dated 3 October 2023 at page 1.

[note: 46]SOF at [7(a)].

[note: 47]Medical report dated 2 October 2023 at page 2.

[note: 48]SOF at [7(b)].

[note: 49]SOF at [8].

[note: 50]SOF at [3].

[note: 51]SOF at [10].

[note: 52]DAC 918157 of 2024.

[note: 53]SOF at [7(b)].

[note: 54]SOF at [7(a)].

[note: 55]SOF at [8].

[note: 56]SOF at [3].

[note: 57]SOF at [10].

[note: 58]Mitigation Plea at [31].

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Public Prosecutor v Ning Zhaochuang
[2024] SGDC 281

Case Number:District Arrest Case No 906666 of 2024 and 1 other, Magistrate's Appeals No 9186 of 2024-01
Decision Date:30 October 2024
Tribunal/Court:District Court
Coram: A Sangeetha
Counsel Name(s): Kevin Liew and Jason Chua (Attorney-General's Chambers) for the Public Prosecutor; Accused in person.
Parties: Public Prosecutor — Ning Zhaochuang

Criminal law – Abetment – Abetment by conspiracy

Criminal law – Penal Code – Cheating

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9186/2024/01.]

30 October 2024

District Judge A Sangeetha:

Introduction

1       The accused, Ning Zhaochuang, is a 40-year-old Chinese citizen. He claimed trial to one charge (the “Charge”) of abetment by engaging in a criminal conspiracy with one Chan Yun For (“Chan”) to cheat and dishonestly induce an Apple store assistant to accept a credit card in the name of Zhang Jian (“Zhang”) for payment and delivery of two sets of the Apple iPhone 15 Pro Max to Chan.

2       Having carefully considered the evidence and parties’ submissions, I convicted the accused of the Charge.

3       Following this, the accused admitted and consented to a charge under s 379 of the Penal Code 1871 (“PC”) to be taken into consideration for sentencing[note: 1]. This charge was for committing theft of Zhang’s items (including the above-mentioned credit card) on 20 February 2024 at about 3pm in Sentosa.

4       I sentenced the accused to an imprisonment term of 22 months for the Charge and ordered that his sentence be backdated to the date of arrest, 26 March 2024. The accused is presently serving his sentence. His earliest date of release is 17 June 2025.

5       Dissatisfied, the accused appealed against the conviction. As the accused did not file an appeal against sentence, these grounds will be limited to my reasons for his conviction.

The Charge

6       The Charge[note: 2] is reproduced below:

…are charged that you, on 20 February 2024, in Singapore, did engage with one Chan Yun For (“Chan”) in a conspiracy to do a certain thing, namely to cheat, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 20 February 2024, at about 4.39pm, at the Apple Marina Bay Sands store (“Apple store”) located at 2 Bayfront Avenue B2-06 Singapore 018972, to wit, Chan presented a China Construction Bank credit card bearing number xxxx xxxx xxxx xxxx in the name of Zhang Jian to a sales assistant of the Apple store for the payment of two iPhone 15 Pro Max valued at SGD 5,003.85, to deceive the sales assistant into believing that Chan was the rightful account owner of the credit card, a fact which you and Chan knew was false, and by such manner of deception, the sales assistant was dishonestly induced to accept the credit card for the payment of the two iPhones and deliver the two iPhones to Chan, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code 1871

Undisputed facts

7       The accused and Chan knew one David Chen (“David”). Chan described David as his “boss”[note: 3].

8       The accused arrived in Singapore on 19 February 2024 through Woodlands Checkpoint[note: 4]. Chan, a Hong Kong national, also arrived in Singapore on the same day but through Changi Airport[note: 5].

9       The next day, on 20 February 2024, between 10.49am and 10.56am, the accused visited the Apple store (“Apple Store”) at Marina Bay Sands (“MBS”). He did not make any purchase[note: 6]. Chan, who was also at the Apple Store at that time, successfully purchased two sets of the Apple iPhone Pro Max using a credit card belonging to one Hong Khee Kiong (“1st Purchase”)[note: 7]. Both the accused and Chan left the Apple Store at about 10.56am[note: 8].

10     Sometime between 3pm and 4pm, in Sentosa, Zhang lost his wallet which contained cash, a China Construction Bank credit card bearing xxxx xxxx xxxx xxxx (“Credit Card”) and other cards[note: 9].

11     At around 4.39pm, Chan used the Credit Card to make an unauthorised purchase of two sets of the Apple iPhone 15 Pro Max valued at S$5,003.85 at the Apple Store[note: 10] (“2nd Purchase”). Once the transaction was completed, Chan left the Apple Store with the two phones.

12     Subsequently, Zhang received an SMS regarding this transaction. Only then did Zhang realise that he had lost his wallet. Later that night, Zhang made a police report which resulted in investigations being carried out[note: 11]. Pursuant to section 20(1) of the Criminal Procedure Code 2010 (“CPC”), the police issued an Order for Information dated 11 March 2024 to Apple requesting for data concerning the 2nd Purchase[note: 12].

13     Meanwhile, the accused and Chan left Singapore vide Changi Airport on 24 February 2024[note: 13] and 27 February 2024 respectively[note: 14].

14     When the accused[note: 15] and Chan attempted to re-enter Singapore on different dates in March 2024, they were each arrested. They were charged in court separately.

15     Chan pleaded guilty on 18 July 2024 to three charges[note: 16]. He was sentenced to a global imprisonment term of 20 months[note: 17]. The charges and respective sentences are as follows:

(a)     For the charge of cheating whilst engaging in a criminal conspiracy with an unknown person for the 1st Purchase under s 420 read with s 109 of the PC, Chan was sentenced to 17 months’ imprisonment.

(b)     For the charge of cheating whilst engaging in a criminal conspiracy with the accused for the 2nd Purchase under s 420 read with s 109 of the PC, Chan was similarly sentenced to 17 months’ imprisonment.

(c)     For the charge of receiving the stolen Credit Card from the accused under s 411 of the PC, Chan was sentenced to three months’ imprisonment.

Summary of the Prosecution’s case

16     The Prosecution’s case was that this case involved the use of a stolen credit card to purchase iPhones which were later sold for profit. As part of this illegal syndicated scheme, the accused passed the Credit Card to Chan and engaged in a conspiracy to cheat. Pursuant to this conspiracy, Chan effected the 2nd Purchase using the Credit Card. The Apple Store representative, Vikneswari d/o Kamala Anandan (PW3), was deceived into believing that Chan was the rightful owner of the Credit Card. She was dishonestly induced into accepting the Credit Card as payment for the two iPhones that she delivered to Chan.[note: 18]

17     The Prosecution led evidence from three witnesses, namely, Inspector Chang Yuan Feng (PW1) who was the lead investigation officer (“IO”) for this case, Chan (PW2) and PW3.

18     The Prosecution’s main witness was Chan, who gave direct evidence on the accused’s abetment pursuant to a conspiracy to cheat the Apple Store of the iPhones. Chan identified the accused as the person who gave him the Credit Card in a toilet at MBS to make the 2nd Purchase.

19     The evidence from the IO and PW3 were largely uncontroversial.

20     The IO testified that based on investigations, on the morning of 20 February 2024, the accused entered the Apple Store. He was observed to be looking at Chan[note: 19]. Shortly after, Chan carried out the 1st Purchase before the accused and Chan left the Apple Store. As regards the 2nd Purchase, the IO testified that investigations revealed that the accused had stolen the Credit Card from Zhang and subsequently, handed the Credit Card to Chan[note: 20].

21     PW3 processed the transaction for the 2nd Purchase. She testified that she was deceived into believing that Chan was the owner of the Credit Card when he was not. Had she known that Chan was not the owner of the Credit Card, she would not have processed the said transaction. PW3 testified that she was induced into accepting the Credit Card for payment and delivering the two iPhones to Chan[note: 21].

22     Apart from the direct evidence from Chan, the Prosecution bolstered its case by relying on two pieces of circumstantial evidence (“Circumstantial Evidence”)[note: 22]. The first was that both Chan and the accused knew David. The second was the accused’s presence in the Apple Store during the 1st Purchase. According to the Prosecution, the Circumstantial Evidence suggested that the accused was involved in the syndicate operated by David to use stolen credit cards to purchase iPhones from the Apple Store.

Summary of the Defence’s case

23     The accused was the Defence’s sole witness.

24     At this juncture, it is apposite to provide some context on how evidence-taking went. The accused’s examination-in-chief was brief despite this Court asking him to state his version of events, provide information that would help his defence, as well as requesting his explanation for the evidence which was presented in Court[note: 23].

25     After the allocution was administered to him, the accused had initially elected to give evidence and answer the learned DPP’s questions[note: 24].

26     Less than 30 minutes into cross-examination, the accused changed his mind and refused to answer questions. As a result, the case was stood down early so that the accused could have some time to calm down and consider stating his answers under cross-examination the next day.

27     Surprisingly, the next day, the accused refused to take the stand and elected to remain silent without entering the witness stand. I explained to the accused that given that he had earlier elected to give evidence, he had to take the witness stand to state his answers or his refusal to answer[note: 25]. The accused then took the stand and declared that he would remain silent for all questions posed[note: 26]. The learned DPP continued with cross-examination. Consistent with his declaration, the accused persistently refused to answer the DPP’s questions.

28     The accused’s defence was one of bare denial. His position was that there was no abetment or conspiracy to cheat between himself and Chan for the following reasons:

(a)     there was no CCTV footage of the accused stealing the Credit Card[note: 27];

(b)     there was no CCTV footage of the accused entering the toilet at MBS where he was alleged to have met and delivered the Credit Card to Chan[note: 28];

(c)     there was no CCTV footage of the accused passing the Credit Card to Chan[note: 29];

(d)     the accused did not say a word to Chan at the Apple Store[note: 30];

(e)     the accused did not buy anything with Chan[note: 31];

(f)     there was no evidence of any conversation between the accused and David[note: 32]; and

(g)     there were no records to show contact between the accused and Chan[note: 33].

29     The accused’s claim that there was an absence of CCTV footages and/or records of conversations was not disputed by the Prosecution.

Issue to be determined: Whether the accused had engaged in a conspiracy with Chan for the 2nd Purchase

30     It was not in dispute that Chan had used the Credit Card for the 2nd Purchase. Neither was it in dispute that PW3 was deceived to deliver the two iPhones to Chan.

31     The sole issue at trial was whether the accused had engaged in a conspiracy with Chan for the 2nd Purchase. The testimonies from Chan and the accused were at odds. Chan identified the accused to be the person who gave him the Credit Card to make the 2nd Purchase, whereas the accused vehemently denied this.

Chan’s evidence that there was a conspiracy to be believed

32     Chan testified that he had first met the accused in the afternoon on 20 February 2024 at a toilet (on the same floor as the Apple Store) in MBS [note: 34]. Pursuant to David’s instructions, Chan had gone to the toilet to collect a stolen credit card from “someone”[note: 35], whose identity was not revealed by David. There was no prior communication between Chan and the accused, as arrangements were made by David on WeChat[note: 36]. This was corroborated by screenshots from Chan’s WeChat account (P11) which showed an incoming call from David to Chan lasting 22 seconds followed by photographs of the Credit Card[note: 37].

33     Chan subsequently identified the “someone” to be the accused. Chan testified that the accused handed the Credit Card to him at the toilet so that Chan could purchase iPhones from the Apple Store[note: 38].

34     Shortly after, Chan left the toilet to execute the 2nd Purchase with the Credit Card[note: 39]. Once the transaction was done, Chan destroyed the Credit Card. This was supported by the photographs in P11[note: 40] which showed the destroyed Credit Card.

35     Under cross-examination, Chan remained consistent that the accused handed the Credit Card to him at a toilet in MBS[note: 41] so that he could make the 2nd Purchase. While the accused had asserted that Chan was trying to frame him[note: 42], I noted that this was merely a bare assertion with no reasons suggested as to why Chan would want to frame him.

36     Chan’s testimony in Court was also consistent with the charge (see DAC-907645-2024) and Statement of Facts dated 17 July 2024 (“Chan’s SOF”) which he had pleaded guilty to[note: 43]. In Chan’s SOF, Chan admitted to helping a syndicate operate in Singapore by stealing credit cards and using such cards to purchase items which would thereafter be sold for profit. In respect of the 2nd Purchase, Chan’s SOF stated that David had asked Chan to meet another syndicate member, who was later identified to be the accused, at a toilet in MBS to collect a stolen credit card from the accused. The meeting took place according to David’s plan, with Chan collecting the Credit Card from the accused.

37     The Prosecution submitted that Chan was a credible witness whose evidence was corroborated by objective evidence[note: 44]. The Prosecution further submitted that Chan had no reason to lie or provide false allegation against the accused. As Chan did not know the accused prior to 20 February 2024, there was no ill will between them. In Court, Chan provided a factual account of what happened on 20 February 2024 without playing up the accused’s role. The Prosecution also submitted that if the Court found Chan’s evidence to be reliable, then Chan’s evidence should receive the same weight as any other evidence.

38     The accused orally submitted that Chan testified against the accused so that Chan could avoid a trial[note: 45]. As Chan’s evidence was not supported by CCTV footages, the accused submitted that this Court should not accept Chan’s false testimony.

39     Overall, I found Chan to be a reliable witness and accepted his evidence. I agreed with the Prosecution that Chan’s evidence was corroborated by contemporaneous evidence, P11.

40     Regarding the accused’s submission that Chan testified against the accused to avoid a trial, I found nothing strange about Chan pleading guilty and later, testifying against the accused as a co-conspirator. It was natural that once Chan pleaded guilty to his offences, a trial for his offences would no longer be necessary.

41     In addition, Chan had also admitted to his offences and accepted the punishment imposed by the court. Based on the evidence before this Court, I was also unable to see any reason for Chan to falsely implicate the accused. Chan had pleaded guilty and received his sentence prior to this trial. He came as a witness after a subpoena was issued to him. All things considered, I found that Chan had nothing to gain by lying to this Court. I accorded full weight to Chan’s testimony.

The Circumstantial Evidence was consistent with the Prosecution’s case

42     Looking only at the Circumstantial Evidence of David being a common contact of the accused and Chan, as well as the accused being at the Apple Store during the 1st Purchase, it may not be evident that there was a link or connection between Chan and the accused.

43     However, seen together with the direct evidence from Chan and the supporting contemporaneous evidence, I agreed with the Prosecution that the Circumstantial Evidence was consistent with its case that the accused and Chan were members of a syndicate which operated in Singapore at the material time. Most pertinently, the accused had refused to explain or explain satisfactorily, if at all, on why he was at the Apple Store when Chan was making the 1st Purchase. The absence of explanations from the accused regarding his appearance in the Apple Store during the 1st Purchase and the dearth of details concerning his relationship with David (as discussed below at [53] to [56]) only further strengthened the Prosecution’s case.

The Prosecution had proven its case beyond a reasonable doubt with Chan’s direct evidence and supporting evidence

44     For a charge which alleges an abetment by way of conspiracy, the elements that need to be proved are laid down in Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 (at [76]):

The essential elements of abetment by conspiracy are: first, the person abetting must engage with one or more other persons in a conspiracy; second, the conspiracy must be for the doing of the thing abetted; and third, an act or illegal omission must take place in pursuance of the conspiracy in order to the doing of that thing.

45     Explanation 5 to s 108 of the PC and its accompanying illustration makes it clear that it is not necessary for the abettor to have agreed or arranged directly with all the other conspirators or the person who commits the offence:

Explanation 5 — It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section, and is liable to the punishment for murder.

46     Additionally, the following summary of the case law in Public Prosecutor v Pang Siu Shen (Peng Xiuxian) and another [2024] SGDC 108 (at [38]) is a useful guide on how criminal conspiracy may be proved:

(a)    Proof of a conspiracy is generally a matter of inference of the apparent criminal purpose in common between the accused parties: Er Joo Nguang v Public Prosecutor [2000] 1 SLR(R) 756 (at [35]). In Goldring, Timothy Nicholas v Public Prosecutor and other appeals [2015] 4 SLR 742 (at [47]), the Court of Appeal confirmed that a conspiracy need not be proved by direct evidence, and in fact, is often proved by the cumulative circumstantial evidence. This is because conspirators mostly agree in private and direct evidence is rarely available.

(b)    The essence of a conspiracy is agreement, and it suffices to show the conspirators’ awareness of the general purpose of the plot, or an agreement in principle to carry out the common design: Nomura Taiji v Public Prosecutor [1998] 1 SLR(R) 259 (at [110]) (“Nomura Taiji”).

(c)    Accordingly, there is no need to prove: (i) a physical meeting of the conspirators; (ii) that the conspirators remained in each other’s company throughout or at all; (iii) communication between each conspirator and every other; (iv) or that the conspirators knew all the details of the unlawful plot: Ang Ser Kuang v Public Prosecutor [1998] 3 SLR(R) 316 (at [30]); Nomura Taiji (at [110]).

(d)    It is not essential for a conspirator to have been a party to the agreement from the start, provided that at some stage prior to the unlawful act being carried out, he or she joins in the agreement: Saleemuddin v State (1971) ILR 1 Delhi 432 (at [16]).

47     In this case, the following elements of the Charge must be proven beyond reasonable doubt:

(a)     The accused engaged in a conspiracy with Chan;

(b)     The conspiracy was for doing the thing abetted; and

(c)     Pursuant to the said conspiracy, an act or omission took place.

48     On the evidence in this case, I was satisfied that there was a meeting of minds to prove conspiracy. Evidence from Chan showed that the accused and Chan were aware of the general purpose of the meeting in the toilet i.e. for the accused to deliver the Credit Card to Chan for him to make the 2nd Purchase. The evidence showed that the conspiracy was executed successfully with the accused meeting Chan to deliver the Credit Card. With that Credit Card, Chan made the 2nd Purchase and left the Apple Store with two iPhones. I was satisfied that Chan and the accused were members of a syndicate and acted in concert as per the Charge.

49     As the case law cited above makes clear, for a conspiracy to exist, there was no need for Chan and the accused to have remained in each other’s company throughout or at all, have direct records of conversations with each other or even have conversations with each other and every other co-conspirator or know all the details of the unlawful plot.

50     In sum, based on the direct evidence from Chan and supporting contemporaneous evidence, P11, I was satisfied that the Prosecution had discharged its burden in proving that the accused had abetted Chan as set out in the Charge.

Accused’s evidence denying abetment by conspiracy was inadequate and internally inconsistent

51     Under the circumstances mentioned above (at [23-27]), the evidence which was eventually led from the accused was limited. I assessed the accused’s evidence to be inadequate and sketchy. In my view, his evidence created more questions than it offered answers. Accordingly, I found that the accused’s testimony did nothing to create a dent in the Prosecution’s case. I explain.

52     The accused’s evidence could be classified into two categories, namely, instances where he gave evidence, but such evidence lacked details or internal inconsistency and instances where the accused refused to give evidence.

The accused’s evidence was lacking details or internal consistency

53     The first category concerned aspects of the accused’s evidence which were lacking details or internal consistency. These aspects are as follows:

(a)     The accused’s evidence on his stay in Singapore in February 2024 was sorely lacking in detail. The accused testified that he came to Singapore with a friend (later, he said brother[note: 46]), and they had left together[note: 47]. Apart from this brief testimony, unfortunately, the accused did not give any account of events or provide any evidence on the whereabouts of his stay in Singapore. In addition, the accused did not call any witness to support his version. After the accused had finished testifying, he indicated his intention call a friend who was with him in Singapore at the material time and could attest to the accused’s whereabouts. The accused requested to use his mobile phone to make a video call to this witness who was in China. Having heard my explanation that he must put in a formal application for the witness to give evidence remotely from a foreign jurisdiction (including providing the identity of the potential witness), the accused did not pursue this further[note: 48].

(b)     The accused’s evidence on the details of his relationship with David was internally inconsistent. As mentioned earlier, the accused admitted that he knew David. When the accused was cross-examining the IO, he mentioned that he had not been in contact with David for a few months. Within seconds, the accused quipped that he had never chatted with David[note: 49]. During the DPP’s cross-examination of the accused, the accused testified that he had not been in contact with David for nearly a year[note: 50] including the time he had spent in remand. The accused further testified that there was no chat record between David and himself[note: 51]. When the DPP probed on whether the accused had deleted the chat records, the accused reverted to one of his earlier positions that he had never contacted David before[note: 52]. As can be seen, the accused toggled between having contact with David nearly a year ago to never having contact with David. Any attempt by the Prosecution to clarify these answers was futile given the accused’s subsequent refusal to answer questions.

54     In the absence of consistent and reliable evidence from the accused, I found it hard to give his testimony any weight.

The accused refused to give evidence on material aspects

55     As mentioned above, the accused elected to give evidence and answer the DPP’s questions. This changed as soon as the questions geared towards his relationship with David[note: 53]. The accused began stating his refusal to answer. The next day, the accused attempted to insulate himself from further cross-examination by retracting his election to give evidence and wanted to remain silent. This was followed by his refusal to answer questions which went to the nub of this case. The accused explained that his refusal to answer questions was because there was no evidence against him. Regrettably, this explanation was neither here nor there.

56     In the following instances, the accused refused to give evidence on the several material aspects which directly impacted his culpability:

(a)     whether he met Chan before 20 February 2024[note: 54];

(b)     whether the accused entered the Apple Store in the morning of 20 February 2024 after Chan had gone to the Apple Store;[note: 55]

(c)     whether the accused was looking for Chan in the Apple Store in the morning of 20 February 2024[note: 56];

(d)     whether the accused was in MBS in the afternoon of 20 February 2024[note: 57];

(e)     whether the accused had seen the Credit Card before[note: 58];

(f)     whether the accused was at the toilet at MBS in the afternoon of 20 February 2024[note: 59];

(g)     whether the accused was the one who passed the stolen credit card to Chan in the toilet[note: 60];

(h)     whether the accused had instructed Chan to use the Credit Card at the Apple Store[note: 61];

(i)     whether Chan had agreed to use the Credit Card[note: 62]; and

(j)     whether Chan made the 2nd Purchase with the Credit Card[note: 63].

57     Seen in context, the accused persistently refused to answer questions on crucial points regarding the events of 20 February 2024. Since the accused was the only person who could contradict Chan’s evidence on what happened on that day, at every opportunity he had, the accused could have given a plausible explanation for this Court’s consideration. But he simply did not.

Drawing of adverse inference against the accused

58     In respect of the accused’s refusal to answer questions, the Prosecution submitted that an adverse inference against the accused under s 291(3)(b) of the CPC be drawn that the accused had no defence to the Charge[note: 64]. For reference, the provision relied on by the Prosecution is reproduced below:

…

(3)    If the accused -

(a)    after being called upon by the court to give evidence or after the accused or the advocate representing the accused has informed the court that the accused will give evidence, refuses to be sworn or affirmed; or

(b)    having been sworn or affirmed, without good cause refuses to answer any question,

the court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

59     The appropriate inference to be drawn in each case depended on the circumstances and was premised upon ordinary common sense: see Oh Laye Koh v Public Prosecutor [1994] SGCA 102 (“Oh Laye Koh”) at [14] to [15]. In Oh Laye Koh, the defendant elected to remain silent and failed to give any evidence on oath. Additionally, he called no witnesses in his defence. Relying on s 196(2) of the Criminal Procedure Code (Cap. 68) (like the present-day s 291(3) of the CPC), the trial judge drew an adverse inference against the defendant that he was guilty of the offence charged.

60     In the present case, I agreed with the Prosecution that the accused’s refusal to answer questions after having been affirmed could place the accused within s 291(3)(b) of the CPC. The key question was whether the accused had good cause for his refusal. To this end, I referred to s 291(5) of the CPC which provides:

(5)    For the purposes of this section, an accused who, having been sworn or affirmed, refuses to answer a question is taken to do so without good cause unless —

(a)    the accused is entitled to refuse to answer by section 122(4) of the Evidence Act 1893 or another written law or on the ground of privilege; or

(b)    the court excuses the accused from answering it.

61     In my assessment, the accused did not satisfy the exceptions set out in s 291(5) of the CPC. The questions posed by the learned DPP concerned the offences that he was charged for. At no point did the accused plead privilege or refer to any other law. Neither was he excused by this Court from answering the questions posed by the learned DPP.

62     Having considered the accused’s evidence in totality, I agreed with the Prosecution that the accused did not have satisfactory answers to provide or a viable defence to present in Court. I was satisfied that the accused’s refusal to answer questions during cross-examination was done without good cause. Accordingly, I exercised my discretion under s 291(3) of the CPC and drew an adverse inference against the accused that he was guilty of the Charge.

Conclusion

63     In conclusion, I was satisfied beyond reasonable doubt that the accused had engaged in a conspiracy with Chan and abetted him to carry out the 2nd Purchase. Having found the accused guilty of the Charge, I convicted and sentenced him to 22 months’ imprisonment with effect from 26 March 2024.

[note: 1]Notes of Evidence (“NE”), 27 September 2024, 4/3-31; 5/1-5

[note: 2]C1A

[note: 3]NE, 14 August 2024, 4/22-23

[note: 4]P7

[note: 5]P8

[note: 6]P10 footage “08A R633 02202024 1048-1057hrs”

[note: 7]P13

[note: 8]P10 footage “08A R633 02202024 1048-1057hrs”

[note: 9]P1

[note: 10]NE, 14 August 2024, 7/19-23; P9; P10 footage “08A R633 02202024 1635-1644hrs”

[note: 11]P1; NE, 13 August 2024, 6/30-31; 7/6

[note: 12]P2

[note: 13]P7

[note: 14]P8

[note: 15]P4

[note: 16]DAC-905298-2024, DAC-907645-2024 and DAC-907647-2024

[note: 17]P13

[note: 18]P14

[note: 19]NE, 13 August 2024, 14/8-20

[note: 20]NE, 13 August 2024, 47/16-27

[note: 21]NE, 14 August 2024, 36/8-30

[note: 22]P14

[note: 23]NE, 14 August 2024, 42/23-34; 43/1-10

[note: 24]NE, 14 August 2024, 42/1-19

[note: 25]NE, 15 August 2024, 1/12-30; 2/1-20

[note: 26]NE, 15 August 2024, 3/3-20

[note: 27]NE, 13 August 2024, 43/5-15; 50/16-27

[note: 28]NE, 13 August 2024, 44/12-14; NE, 14 August 2024, 22/22-31

[note: 29]NE, 13 August 2024, 50/28-30; 51/1-3

[note: 30]NE, 13 August 2024, 43/16-18

[note: 31]Ibid

[note: 32]NE, 13 August 2024, 45/23-26

[note: 33]NE, 13 August 2024, 48/1-7

[note: 34]NE, 14 August 2024, 3/29-34; 4/1-5

[note: 35]NE, 14 August 2024, 4/16-23

[note: 36]NE, 14 August 2024, 11/30-31; 12/1-15

[note: 37]NE, 13 August 2024, 37/1-9

[note: 38]NE, 14 August 2024, 4/13-15; 7/8-10; 11/21-29

[note: 39]NE, 14 August 2024, 7/19-23

[note: 40]NE, 13 August 2024, 37/10-16; NE, 14 August 2024, 12/16-20

[note: 41]NE, 14 August 2024, 22/3-21

[note: 42]NE, 14 August 2024, 24/1-14

[note: 43]P13

[note: 44]P14

[note: 45]NE, 10 September 2024, 8/1-12

[note: 46]NE, 14 August 2024, 45/1

[note: 47]NE, 14 August 2024, 44/13-15

[note: 48]NE, 15 August 2024, 28/17-32; 29/1-32; 30/1-17

[note: 49]NE, 13 August 2024, 45/11-22

[note: 50]NE, 14 August 2024, 47/21-24; 48/4-7

[note: 51]NE, 14 August 2024, 48/17-21

[note: 52]NE, 14 August 2024, 48/22-26

[note: 53]NE, 14 August 2024, 47/21-31; 48/1-32; 49/1-29

[note: 54]NE, 15 August 2024, 24/13-15

[note: 55]NE, 15 August 2024, 5/3-8

[note: 56]NE, 15 August 2024, 5/18-25

[note: 57]NE, 15 August 2024, 11/20-26

[note: 58]NE, 15 August 2024, 16/1-9

[note: 59]NE, 15 August 2024, 13/15-18

[note: 60]NE, 15 August 2024, 13/3-18

[note: 61]NE, 15 August 2024, 16/15-25

[note: 62]NE, 15 August 2024, 16/26-30; 25/1-11

[note: 63]NE, 15 August 2024, 17/12-30

[note: 64]P14

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Public Prosecutor v Altaf Ahamad Sheikh
[2024] SGDC 282

Case Number:District Arrest Case No 940886 of 2018 & Another, MA 9159-2024-01
Decision Date:28 October 2024
Tribunal/Court:District Court
Coram: Salina Ishak
Counsel Name(s): Norman Yew, Koh Mun Keong and Jeremy Bin (Attorney-General's Chambers) for the Public Prosecutor; Andre Darius Jumabhoy and Low Ying Ning Elaine (Peter Low & Choo LLC until 12 September 2022); Andre Darius Jumabhoy and Aristotle Eng (Andre Jumabhoy LLC) for the accused.
Parties: Public Prosecutor — Altaf Ahamad Sheikh

Criminal Law – Offences – Penal Code – Forgery for the purpose of cheating – Fraud committed on insurance company – Expert evidence

Criminal Procedure and Sentencing – Sentencing – General and specific deterrence – Fraud involving financial institutions

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9159/2024/01.]

28 October 2024

District Judge Salina Ishak:

Introduction

1       The present case involves a fraud committed on Allied World Assurance Company Ltd (“Allied World”), an insurance provider that led to a payout of $653,500 to Royal Kashmir Trading Private Limited (“Royal Kashmir”), a carpet retailer.

2       The accused, Mr Altaf Ahamad Sheikh, a 55-year-old male Singapore citizen ran Royal Kashmir, a carpet trading business at 40 Arab Street. He denies forging two Oriental Carpets Pte Ltd (“Oriental Carpets”) invoices that were submitted as part of the documents in support of the insurance claim. He claimed trial to two charges of forgery for the purpose of cheating under s 468 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) as set out below:

DAC 940886-2018

1st Charge (Amended)

are charged that you, between November 2015 and April 2016, in Singapore, did forge an invoice bearing the header “Oriental Carpets Pte Ltd” and numbered 1377, intending that it be used for the purpose of cheating Allied World Assurance Company Ltd, to wit, by fraudulently writing and signing on the said invoice, intending to deceive Allied World Assurance Company Ltd into believing that Oriental Carpets Pte Ltd had issued the said signed invoice with its written particulars to Royal Kashmir Trading Pte Ltd, and thereby dishonestly induce Allied World Assurance Company Ltd to deliver an insurance payout to Royal Kashmir Trading Pte Ltd, and you have thereby committed an offence punishable under section 468 of the Penal Code (Cap.224, 2008 Rev. Ed.).

DAC 940887-2018

2nd Charge (Amended)

are charged that you, between November 2015 and April 2016, in Singapore, did forge an invoice bearing the header “Oriental Carpets Pte Ltd” and numbered 1378, intending that it be used for the purpose of cheating Allied World Assurance Company Ltd, to wit, by fraudulently writing and signing on the said invoice, intending to deceive Allied World Assurance Company Ltd into believing that Oriental Carpets Pte Ltd had issued the said signed invoice with its written particulars to Royal Kashmir Trading Pte Ltd, and thereby dishonestly induce Allied World Assurance Company Ltd to deliver an insurance payout to Royal Kashmir Trading Pte Ltd, and you have thereby committed an offence punishable under section 468 of the Penal Code (Cap.224, 2008 Rev. Ed.).

3       The Prosecution asserts that the accused forged the two invoices between November 2015 to April 2016 by fraudulently writing and signing on these invoices for carpets sold by Oriental Carpets to Royal Kashmir to deceive Allied World into delivering the said insurance payout.

4       The accused does not deny that he submitted the two invoices in April 2016 to Allied World as part of his insurance claim for the rainwater damage suffered by Royal Kashmir. Instead, the accused claims that the two invoices were provided by Oriental Carpets when the carpets were delivered in early 2013.

5       At the conclusion of the trial, I found the accused guilty and convicted him on both the charges. I imposed the following sentences:

(a)     DAC 940886 - 2018 – 30 months’ imprisonment

(b)     DAC 940887 - 2018 – 30 months’ imprisonment.

I ordered the imprisonment terms to run concurrently. The total sentence is 30 months’ imprisonment. This is the accused’s appeal against his conviction and sentence. The accused is presently on bail pending the hearing of his appeal.

6       I now set out the grounds of my decision in full.

Background

7       Both the accused and Mr Khawaja Muhammad Kamran (“Kamran”), the controller of Oriental Carpets was in the business of selling carpets. Kamran regarded the accused as a very good friend, and they had known each other about 10 to 15 years prior to starting the business. Prior to 2013, the accused had been buying carpets from Oriental Carpets through Kamran.

Chronology of significant events

8       The table below sets out the chronology of significant events.

Date

Events

30 November 2015

Royal Kashmir makes an insurance claim to Allied World for damage to its stock estimated at about $1,000,000 as well as for loss of revenue for the insured property at 40 Arab Street.

1 April 2016

The accused emails the scanned copies of invoices from carpet retailers including Oriental Carpets invoices numbered 1377 and 1378[note: 1] to Areda Adjusters, Allied World’s loss adjuster.

12 June 2016

Areda Adjusters issues its Final Report[note: 2] on the insured property at 40 Arab Street recommending the insurers settle the claim at $653,500.

28 April 2017

Kamran lodges a police report E/20170428/2066[note: 3] against the accused for outstanding payment for carpets from Oriental Carpets. The accused had informed Kamran that he would make payment after receiving his insurance claim. In June 2016, Kamran discovered that the accused’s shop was closed. Kamran indicates that he was taking his own legal action.

24 May 2017

Mr Jan Mohmad Butt (“Jan”) lodges a police report A/20170524/2066[note: 4] against the accused as he suspects the accused used fake invoices to make an insurance claim with Allied World. He refers to the police report made by Kamran and highlights that the total value of the Oriental Carpet invoices was $33,103.48. However, Royal Kashmir had submitted Oriental Carpets invoices amounting to $253,852.60. He states that Kamran had informed the insurers that he had never issued the invoices that the accused had submitted to his insurers.

13 July 2017

Allied World finalises the insurance claim and approves payment of $653,500 to Royal Kashmir whereby $650,000 is for the property damage and $3,500 for the consequential loss.

25 September 2017

The police submit seized exhibits and request specimen handwriting of Kamran, the accused’s wife, Madam Rehana Begam d/o Gulabali (“Rehana”) and the accused to the Health Sciences Authority (“HSA”) for handwriting analysis.

4 October 2017

The police submit normal specimen handwriting of Kamran, Rehana and the accused to HSA for analysis.

26 October 2017

Nellie Cheng, Senior Forensic Scientist of HSA issues her handwriting analysis expert report[note: 5] and the exhibits were returned to the police.

18 December 2018

The accused is charged in Court 26 for the present charges.

16 October 2021

Defence’s handwriting expert, Ms Melanie Jayne Holt, a Forensic Document Examiner from Documents in Dispute issues her expert report[note: 6] based on scanned copies of the exhibits.



Prosecution’s Case

9       It was the Prosecution’s case to support Royal Kashmir’s insurance claim, the accused submitted invoices issued by his carpet suppliers to the insurer’s loss adjusters. In particular, the accused asked Kamran to issue fresh Oriental Carpets invoices for carpets sold to Royal Kashmir as he claimed the original invoices in the accused’s possession were damaged. As Kamran trusted the accused, he gave the accused an empty Oriental Carpets invoice booklet sometime in 2016 to enable him to create fresh invoices for the carpets that were sold to him. However, instead of doing so, the accused fraudulently creates two forged invoices numbered 1377 and 1378 ie P2 and P3 by writing false material particulars and signing on two empty Oriental Carpets invoices. The accused knew that the particulars were false as Kamran had not sold those goods to the accused.

Defence’s case

10     The Defence’s asserts that the two Oriental Carpets invoices were given to Royal Kashmir in early part of 2013 when Kamran delivered the carpets to the shop at 40 Arab Street. As the accused was busy, Kamran gave the invoices to Rehana who acknowledged receipt when she initialled on them.

11     The Defence states that the Prosecution has not proven that the accused forged the writings and signatures in the two invoices. Instead, the Defence’s handwriting expert has conclusively demonstrated that the accused did not write the disputed invoices.

Issues

12     The key issues at trial were:

(a)     Whether Oriental Carpets sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 with a total value of $253,852.60 and

(b)     Whether the accused forged the invoices between November 2015 and April 2016 by fraudulently writing and signing on the Oriental Carpets’ invoices numbered 1377 and 1378.

13     Before my analysis of the evidence before me, it is necessary to set out the undisputed facts.

Undisputed Facts

14     The following facts were undisputed:

(a)     Both Royal Kashmir and Oriental Carpets were in the business of selling carpets. The accused, as the controller of Royal Carpets bought carpets from Oriental Carpets through Kamran, the controller of Oriental Carpets since before 2013.

(b)     Torrential downpours were experienced in most parts of Singapore on the night of 29 November 2015 to the early hours of 30 November 2015.

(c)     On 30 November 2015, after the discovery of rainwater damage to 40 Arab Street, Royal Kashmir submitted an insurance claim to Allied World for damage caused to its stock including carpets as well as for consequential losses.

(d)     On 1 April 2016, the accused submitted scanned copies of invoices from several carpet retailers, including the two Oriental Carpets invoices numbered 1377 and 1378 to Areda Adjusters. Areda Adjusters was the loss adjuster assigned by Allied World to assess the damage caused to Royal Kashmir’s goods.

(e)     The accused wanted to submit as many sales invoices as possible to the loss adjusters as he knew that the more supporting invoices he provided, the higher the insurance payout would be.

(f)     The two invoices purport to show that on 4 February 2013, Oriental Carpets sold the carpets stated in the two invoices to Royal Kashmir.

(g)     Acting on the two invoices issued by Oriental Carpets or with Oriental Carpets’ authority, amongst other invoices submitted by the accused, Allied World made an insurance payout of $653,500 in July 2017 to Royal Kashmir.

(h)     Clause 7 of the Policy Conditions Applicable To All Sections listed at Section 9 of the Allied World insurance policy[note: 7] provides:

7) Fraud

If a claim is in any respect fraudulent, or if any fraudulent means or devices are used by You or anyone acting on Your behalf to obtain benefit under this Policy, or if any injury, Damage or legal liability, or expense occasioned by Your wilful act or with Your connivance all benefits under this Policy shall be forfeited.

Allied World would not have made any insurance payout if it had known that any invoice submitted by the accused was forged.

(i)     The accused was not authorised by any person to write false particulars in the two Oriental Carpets invoices.

The Law on Forgery

15     The offence of forgery is made out if the accused had fraudulently written the material particulars in the two invoices with intent to cause it to be believed that they were made by or by the authority of Kamran/Oriental Carpets when he knew that they were not so made, with the intent to support Royal Kashmir’s insurance claim with Allied World or to cause Allied World to make an insurance payout.

16     Under s 463 of the Penal Code, a person who makes any false document or part of a document with intent to support any claim or to cause any person to part with property, commits forgery. Further, under s 464 of the Penal Code, a person is said to make a false document who dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by or by the authority of a person by whom or by whose authority he knows that it was not made.

Assessment of Evidence and Findings

17     The Prosecution asserts that the key issue at trial was whether the accused forged the writings and signatures in two invoices. This, in turn, depended on whether Kamran sold the goods in two invoices to the accused/Royal Kashmir. Once it is proven beyond reasonable doubt that the accused had forged the writings and signatures in the invoices, it follows that the accused did so to cheat Allied World into disbursing an insurance payout to Royal Kashmir. To prove its case on the 2 proceeded charges, the Prosecution had relied on the evidence of 13 witnesses.

18     I now turn to the two key issues before me.

Issue 1: Whether Oriental Carpets sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 with a total value of $253,852.60

19     I first considered Kamran’s direct evidence at trial. He testified that he was in the business of selling, washing and servicing carpets since 2005. He also testified that he was the only one responsible for the opening and signing invoices[note: 8]. He gave evidence that he did not issue the two invoices numbered 1377 and 1378[note: 9] (as shown below) and he had not sold the carpets as listed in the two invoices to Royal Kashmir. He further gave evidence that the amount in the two invoices ie $171,225.60 and $82,627 was not the kind of amount that he would prepare[note: 10] and that both his handwriting and his signature were not on the invoices[note: 11].

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20     Kamran testified that the two invoices with the Oriental Carpets letterhead were from his Oriental Carpet invoice booklet[note: 12] but the contents stated under the ‘Stock Number’, ‘Description’ and ‘Amount’ was not in his handwriting[note: 13]. He explained that he did not write in that manner and was certain that the carpets listed were not from his stock of carpets. He further explained his system of managing his inventory of carpets and the issuance of invoices for Oriental Carpets sold with reference to his green invoice book[note: 14] and his Oriental Carpets Stock Book (“stock book”)[note: 15].

21     He testified that in 2013, he only had one invoice book with 50 sequential invoice numbers ie 0851 to 0900 for the period 11 January 2013 to 28 August 2013. When the Prosecution went through all the invoices in the invoice book, he explained the difference between a sales invoice and those issued for the cleaning or repair of carpets. He also explained invoices numbered 0891, 0892, 0893, 0895 and 0898 involved goods he had returned to his suppliers after the deal fell through. Nevertheless, as he had received the carpets in the company’s name, he allowed his suppliers to use these invoices to sell the carpets externally. For instance, for invoices 858 and 860, the description was written by his supplier ‘Danish’ with Kamran’s permission and was signed by Kamran. He testified the amount in such invoices would not be included when the accountant prepared the accounts.

22     Kamran gave evidence that his practice was to record all his carpet stock in his green stock book. Whenever he received his goods, he would record the details in his stock book[note: 16]. He started using the stock book since 2005 and was still using it. He explained he made most of the entries in his stock book. Previously when he had a worker, at times the worker would make entries too[note: 17].

23     He further explained he wrote the details of his stock based on the information in the packing list provided by the suppliers whenever he makes a purchase.[note: 18] He would enter the date, the stock number, the name of the company (supplier), description of the carpet, the size, maximum price and actual sale price.[note: 19] Kamran testified that he kept the packing lists and the invoices and when it was time to do the accounts, he would pass it to the accountants for them to file[note: 20]. He also testified on how he prepares a sales invoice with reference to invoice 0867 dated 1 March 2013 from the Oriental Carpets invoice book.

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24     Kamran explained that the reference 2911 under the Stock No column is from his stock book. He further explained that under Stock No, he wrote the number ‘2911’ and under the Description column, he wrote ‘PAKISTAN SUTRIL’. According to him, he obtained the description of the carpets from his supplier’s packing list. During his testimony, I observed that Kamran was able to methodically locate the corresponding stock number 2911 with the matching description stated in the invoice at page 148 of the stock book as shown below.

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25     He testified that unlike the two invoices ie P2 and P3, he would not have written the number of pieces under the column of Stock Number and under Description. He further testified that he did not have the sizes nor such expensive amounts as stated in two invoices.

26     Based on the above, I agreed with the Prosecution that there were significant discrepancies between the invoices in P2 and P3 and the invoices for genuine sales in 2013 (the year in which P2 and P3 were purportedly issued) and the sales therein that purportedly took place. I further agreed with the Prosecution that a comparison of P2 and P3 against the invoices in P4 and P5 (undisputed genuine invoices issued by Oriental Carpets in 2013 for genuine sales in that year) showed the following:

(a)     None of the genuine invoices contains descriptions of goods similar to descriptions used in P2 and P3, namely describing the materials such as “silk on cotton”, “wool on kilim”, etc. Instead, most of the invoices for eg in P4 and P5 set out the design of the carpet such as “Super Kazak”, “Green Persian”, “Light Green” etc. Where the materials used were described, the words “cotton” or “wool” cannot be found in them.

(b)     The invoice numbers of P2 and P3 ie 1377 and 1378 were inconsistent with the invoice numbers used in the genuine invoices issued in the same period ie 0850 to 0900. If the sales recorded in P2 and P3 took place, invoices numbered between 0850 and 0900 would have been used by Oriental Carpets. Instead, the fact that P2 and P3 were numbered 1377 and 1378 showed that they were written sometime after 2013. This cohered with Kamran’s evidence that he gave the invoice booklet containing invoice templates numbered 1377 and 1378 to the accused in 2016.

27     In my view, Kamran’s testimony was internally consistent and was corroborated by the fact that his stock book does not contain any description of the goods stated in the two invoices. He explained that the description of the stock in his invoices would be the same as those in his stock book. I observed that this was unchallenged by the Defence. Nevertheless, the Defence alleges that Kamran’s evidence is not worthy of belief as most of his evidence was untrue or incredible and sought to impeach Kamran’s credit pursuant to s 157(c) of the Evidence Act 1873. I disagreed with the Defence’s position, and this is addressed later in my grounds below.

28     Kamran’s testimony that the two invoices were not genuine Oriental Carpet invoices was also corroborated by his wife, Madam Sadia Kamran Butt, his former workers, Ishrat Iqbal and Suraya Begum Binte Gulab Khan who testified that they had not prepared the two invoices 1377 and 1378. I noted that the Prosecution highlighted that it was also not alleged by the Defence that Kamran’s son wrote P2 and P3. In any event, Kamran’s son who was born in 2003[note: 21], would have been 10 years old in 2013 and as such could not have prepared the invoices. Based on the above, it was clear that no one associated with Oriental Carpets had prepared the two invoices.

29     Kamran’s testimony was externally consistent with the objective evidence of Mr Bafna Rajesh Jograj, the external accountant for Oriental Carpets from 1 July 2012 to 30 June 2013. He testified that based on the records of the carpet sales with serial numbers kept in the Excel sheet, the two invoices 1377 and 1378 were not submitted by Kamran. The last number submitted was 900[note: 22]. He also testified that he had not seen the said two invoices[note: 23].

30     According to him, Kamran had not submitted invoices for such large amounts namely $171,225.60 for invoice 1377 and $82,627 for 1378. He explained that Oriental Carpets’ reported sales was about $11,800 and not more than $12,000. His evidence on the size of Oriental Carpets reported sales was not disputed by the Defence. He further explained that Oriental Carpets was considered a small and medium-sized enterprise, and such a company cannot have ‘big’ sales because they are unable to sustain the stock. He testified that Oriental Carpets average stock maintenance was less than $100,000[note: 24].

31     For the period after June 2013, Kamran’s testimony was supported by the objective evidence of Mr Suppiah Singaram who was Oriental Carpet’s accountant from 1 July 2013 to date. He had prepared a Ledger Account[note: 25] containing an exhaustive list of the transactions between Oriental Carpets and Royal Kashmir from 1 July 2013 to 30 June 2014 (and inclusive of any sales in the preceding year). The Ledger Account reflected the invoice numbers 0901, 0902, 0903, 0916, 0922, 0923 and 0973. It did not contain any record of the sale of the goods in P2 and P3 nor the corresponding invoice numbers 1377 and 1378.

32     Mr Suppiah Singaram testified that the two invoice numbers 1377 and 1378 were never submitted to him[note: 26]. He further testified that Kamran had never submitted any sales invoice with such amounts as his invoices ranged from $3,000, $5,000 to $6,000[note: 27].

33     Based on the Ledger Account, I noted that it was undisputed that Mr Suppiah Singaram did not receive any invoice from Oriental Carpets recording such sales in Exhibits P2 and P3 being made in 2013. I accepted Prosecution’s submissions that the reliability of the Ledger Account in setting out all the sales transactions between Oriental Carpets and Royal Kashmir was buttressed by the fact that there were seven other sale transactions between Oriental Carpets and Royal Kashmir in the material period. Hence, I agreed with the Prosecution as Kamran had honestly and duly reported the sales made by Oriental Carpets to Royal Kashmir in the same period in 2013 as that written in P2 and P3, there was no reason for Kamran to fail to report the sales in P2 and P3 if they had indeed occurred.

34     I next considered the accused’s version of events. I also noted that the accused gave materially inconsistent accounts of the events surrounding the delivery of the two invoices 1377 and 1378 and the carpets listed in the invoices. During his examination-in-chief, the accused testified that Kamran had delivered the carpets listed in the two invoices to 40 Arab Street on 4 February 2013. As the accused was busy, Kamran had asked Rehana to sign on the invoices[note: 28]. According to him, Kamran then left the invoices on the table, and it was only 2 hours later that he had sight of the invoices[note: 29].

35     Nevertheless, in his long statement recorded on 15 July 2017[note: 30], the accused stated that on 4 February 2013, he went to Oriental Carpets located at Paya Lebar Crescent and bought the carpets from Kamran[note: 31]. The payment was agreed to be made in instalments in cash or in cheques. In his statement, he stated that the invoices were prepared by Kamran[note: 32] and notably stated that he did not know who had signed on the left side of the invoices[note: 33]. However, in his further statement recorded on 16 Aug 2017[note: 34], the accused stated that Kamran came to the accused’s shop on 4 February 2013 to hand over the goods. He then passed the invoices to Rehana who initialled them.

36     Curiously, during his cross-examination, the accused testified that he did not order the items listed in the two invoices. According to the accused, Kamran mentioned that he had some goods from his paternal and maternal uncles and sought the accused’s assistance to sell the items. There was no agreement to say that the accused purchased these goods from Kamran. The understanding was once he sold an item, he would pay Kamran.[note: 35]. I noted that this version that the items in P2 and P3 were on consignment was not put to Kamran by the Defence. It was also inconsistent with his Defence that he had bought the carpets listed in the invoices in 2013.

37     The accused further testified that he selected a few items and Kamran delivered it over three or four occasions about two weeks prior to the date stated in the two invoices[note: 36]. According to him, it must be sometime in January 2013 as the invoices were both dated 4 February 2013. The items were delivered to 40 Arab Street and the invoices were given one to two weeks after 4 February 2013[note: 37]. Kamran gave Rehana the invoices as the accused was busy with his Turkish supplier. Kamran had walked into the shop where Rehana was and asked her to append her signature. He then left the two invoices on the shelf[note: 38].

38     All things considered; I found the accused to be an unreliable witness as he was internally inconsistent in his evidence. Based on his evidence as discussed above at [34] to [37], I agreed with the Prosecution that the accused gave four materially inconsistent versions of events regarding how Royal Kashmir purportedly obtained the two invoices from Kamran.

39     In view of the evidence discussed above, I agreed with the Prosecution that Kamran has consistently maintained, in his evidence-in-chief and under cross-examination that (i) he did not sell the goods in P2 and P3 to the accused; and (ii) he never owned those goods.[note: 39] I also agreed that Kamran’s evidence was corroborated by various contemporaneous documentary evidence which show that Oriental Carpets neither sold those goods nor issued the two invoices.

40     Hence, I agreed with the Prosecution that the significant discrepancies from the genuine invoices as well as the material inconsistencies in the accused’s evidence showed that P2 and P3 were false. Although the accused asserts that the two invoices 1377 and 1378 were provided by Oriental Carpets when the carpets were delivered in early 2013, this was inconsistent with the objective evidence that the invoice numbers issued in 2013 ought to be from the range of 0850 to 0900.

41     I further observed that unlike Kamran, the accused had not produced any corroborative documentary evidence such as a similar stock book which listed the carpets in the two invoices 1377 and 1378 as part of his inventory or stock. There was also no corroborative evidence from any of the accused’s accountants of Royal Kashmir’s average stock maintenance in 2013 or when he made the insurance claim in 2015 which could accounts for the total value of $253,852.60 of the carpets listed in the two invoices. Accordingly, I found that Oriental Carpets had not sold the carpets listed in invoices numbered 1377 and 1378 to Royal Kashmir in February 2013 and that these invoices were false.

Impeachment application

42     The Defence had sought to impeach Kamran’s credibility pursuant to s 157 (c) of the Evidence Act 1873 based on the inconsistencies within his own testimony as well as with other witnesses and in his police statements. The Defence asserts in the Closing Submissions that Kamran’s testimony is not worth of belief as most of his evidence was untrue or incredible. Although Kamran claimed that only he was authorised to issue invoices, there were other people who issued Oriental Carpets invoices, most prominently, his supplier ‘Mr. Danish’.

43     The Defence further asserts that Kamran was ‘cooking the books’ ie he was evading taxes as the invoices which should have been given to his accountants, and he should have paid tax on because they were goods sold by his company. According to the Defence, Kamran tried to explain it away by saying that he was returning goods that he had bought from Danish, which made no sense. The Defence also asserts that Danish, who appears to be an overseas carpet supplier with no right to engage in trade in Singapore, was using Kamran’s invoices to sell goods to Singapore customers.

44     The Defence further asserts that Kamran has lied about almost every aspect of the evidence that he gave in Court. In his statement recorded on 23 June 2017 (D2), he lied about the provenance of the disputed invoices, he lied about telling the police that the accused had given him P2A and P3A (and told him not to give them to the police), he did not mention meeting with the accused to give him the invoices, he did not mention the difficulty in finding parking, he did not mention his “mother brother” or his daughter in hospital, and he lied about whether other people issued his invoices. He lied about every aspect of his evidence that he gave in Court.

45     In my assessment of the evidence, I considered the fact that the events in question happened between 2013 and 2017, hence there was a lapse of time from the occurrence of the events in question and Kamran’s testimony in court in 2020. Hence, it was necessary that his testimony should be assessed with this context in mind. In Public Prosecutor v Singh Kalpanath [1995] 3 SLR(R) 158 at [60] Chief Justice Yong Pung How held that adequate allowance must be accorded to the human fallibility in retention and recollection. It is also common to have varying account of the same incident by the same person. No one can describe the same thing exactly in the same way over and over again: see Chean Siong Guat v PP [1969] 2 MLJ 63 at [63] to [64].

46     In Kwang Boon Keong Peter v Public Prosecutor [1998] 2 SLR(R) 211 (“Peter Kwang”), Yong CJ explained at [18] that “the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity”. Yong CJ also explained the meaning and purpose of impeachment as follows at [19]:

There is a close relationship between the credit and credibility of a witness. The credit or discredit of a witness relates to his credibility. This brings us to the question of what it means by impeaching a person’s credit. The Oxford English Dictionary (2nd Ed) defines the word, “impeach”, as “to challenge, cast an imputation upon, attack”. To impeach a witness’ credit is to disparage or undermine his character and moral reliability and worth. The purpose of the impeachment of a witness’s credit is to undermine his credibility by showing that his testimony in court should not be believed because he is of such a character and moral make-up that he is one who is incapable of speaking the whole truth under oath and should not be relied on. …

47     For the credit of a witness to be successfully impeached under s 157(c) of the Evidence Act 1893, the following requirements must be met (Peter Kwang at [21]-[26]):

(a)     The witness’s former statement must be proved;

(b)     There must be an actual inconsistency between the witness’s oral evidence and the statement which is not a minor difference or an apparent discrepancy;

(c)     The inconsistency must be so serious or material as to affect the credit of the witness;

(d)     The conflicting versions must be carefully explained to the witness, and he or she must have a fair and full opportunity to explain the difference; and

(e)     The witness is unable to provide a convincing or credible explanation for the difference.

48     Material inconsistencies are defined as inconsistencies that go to the crux of the charges against the accused person: see Peter Kwang at [26] and Mohammed Zairi bin Mohamad Mohtar v Public Prosecutor [2002] 1 SLR(R) 211 (“Mohammed Zairi”) at [34]. Even so, even if the witness’s credit is successfully impeached, this does not mean that all his or her oral testimony will have to be disregarded (Public Prosecutor v BZT [2022] SGHC 91 at [176]). The court would still have to scrutinize the whole of the evidence to determine what is true and which aspects should be disregarded (Teo Geok Fong v Lim Eng Hock [1996] 2 SLR(R) 957 at [42]).

49     In the present case, I was of the view that the requirements of an impeachment application had not been satisfied. During Kamran’s cross-examination, when the Defence referred to his police statements, I had queried whether it was to impeach him or to refresh his memory as Kamran was unable to recall going to the station to give a statement[note: 40]. The Defence stated that ‘at the moment’ it was being used to refresh his memory because he was ‘saying one thing and saying the other’. The Defence further stated that he was using the statement for ‘the purpose of s 157 in relation to his credit’[note: 41].

50     In my view, the Defence had not set out the alleged material inconsistencies it was relying on in respect Kamran’s evidence and I was not invited to determine if the inconsistencies were material. I agreed with the Prosecution, even if both statements were inconsistent, the Defence did not give Kamran a fair and full opportunity to explain the inconsistency. Hence, I agreed with the Prosecution that no weight should be placed on these alleged inconsistencies. In any event, I was of the view that these inconsistencies were not so material as to affect the crux of the charges. As stated earlier, I was mindful and considered that there was a considerable lapse of time between the incidents and Kamran’s testimony. It would therefore be extremely difficult for him to remember the details of each event with a high degree of accuracy. Hence, when delivering my verdict, I ruled that Kamran’s credit had not been impeached[note: 42].

51     I next turn to the issue of who had created the two false Oriental Carpet invoices. It was the Prosecution’s case that the fact that the sales recorded in P2 and P3 never took place showed that the two invoices were forged to create the false impression that the purported sales were genuine. I therefore had to determine who was responsible for the forged writings and signatures in these invoices.

Issue 2: Whether the accused forged the invoices between November 2015 and April 2016 by fraudulently writing and signing on the Oriental Carpets’ invoices numbered 1377 and 1378.

52     To determine whether the Prosecution had proven that it was the accused who was responsible for the forged writings and signatures in the two Oriental Carpets’ invoices, I considered the circumstances that led to their creation. Based on the evidence before me, I noted that each invoice is in triplicate, with the original or customer copy being in white while the remaining two copies are in blue and yellow. In the present case, the white copies[note: 43] were seized from the accused’s house while the blue copies[note: 44] were seized from Kamran. The yellow copies of the invoices were not part of the evidence before me.

53     I noted that although the water damage occurred in November 2015, it was only sometime in 2016, the accused told Kamran that some of the carpets he bought from Oriental Carpets had become defective and that he wanted to make an insurance claim[note: 45]. This coheres with the evidence from Lee Lin Yong Mark, insurance loss adjuster from Areda Adjusters Pte Ltd that he received the scanned copies of the invoices via email on 1 April 2016[note: 46].

54     According to Kamran, as the accused was a very good friend whom he trusted very much, he had passed his company’s invoice book[note: 47]. Kamran explained that he gave his unused invoice book which included invoice numbers 1377 and 1378 to the accused[note: 48]. As Kamran had difficulty finding parking space when he went to the accused’s shop, he left the entire invoice booklet with the accused and told him to fill up Oriental Carpet’s stock number, the description of the carpets as well as the amount for the carpets that were defective. Kamran told the accused that he would come back and append his signature on the invoice when the accused was done filling up the invoice[note: 49]. According to Kamran, the invoice book was completely empty when he gave to the accused[note: 50] and to date the accused had not returned the said invoice book.

55     Kamran testified that sometime in 2017 after he had lodged a police report[note: 51] against the accused, the latter came to his office in Paya Lebar and gave him the blue copies of the two invoices[note: 52] numbered 1377 and 1378[note: 53]. The accused told Kamran not to give the two blue copies to the police. After examining the copies of the invoices, Kamran found that it was not his stock, nor his handwriting and that the accused ‘used his letterhead’ ie the Oriental Carpets invoices for somebody else’s carpets[note: 54]. Subsequently Kamran handed over the copies of the two blue invoices to the police[note: 55].

56     In view of my earlier finding that Kamran did not sell or own the goods in P2 and P3, I agreed with the Prosecution that it followed that Kamran did not issue or write P2 or P3 as there was no reason for him to write or issue such invoices for sales that did not take place. As highlighted by the Prosecution, it was also not the Defence’s case that Kamran had issued or written P2 and P3 despite the sales not taking place. Further, I accepted the fact that Kamran did not write P2 and P3 was supported by the expert opinion of the HSA handwriting expert Nellie Cheng. Her opinion that Kamran did not write P2 and P3[note: 56] was unchallenged by the Defence.

57     In addition, I agreed with the Prosecution that the fact that Kamran did not write or issue P2 and P3 was corroborated by the fact that they were customer copies handed by the accused to Areda Adjusters contained Rehana’s signatures acknowledging receipt of the goods, while the blue carbon copies in P2A and P3A which were obtained by the police from Kamran did not have these signatures. I accepted the Prosecution’s submissions that this supported Kamran’s account that he did not sell or deliver the goods in P2 and P3 and diminishes the credibility of the accused’s version of events.

58     As highlighted by the Prosecution, the accused had conceded that it would have been strange for Kamran to have Rehana provide an acknowledgment signature on customer copies ie P2A and P3A without the signatures being duplicated on the carbon copies kept by Kamran[note: 57]. Indeed, if the sales took place, Kamran would have wanted the acknowledgment signatures to be on the blue carbon copies kept by him as proof of delivery should there be any subsequent dispute on whether he had delivered the goods.

59     I agreed with the Prosecution that it was far more likely that the accused appended the signatures on P2 and P3 before giving them to Areda Adjusters while separately returning the unsigned P2A and P3A to Kamran. In my view, he had done so to cover his tracks as the blue copies are usually retained by the seller for accounting purposes. Accordingly, I rejected the Defence’s suggestion that Kamran could have filled up the invoices P2 and P3 either in his office or at home as he would have had the blue copy of the previous invoice and that there was no need for Kamran to bring a new invoice book[note: 58].

Expert Evidence

60     What remains outstanding was whether the handwriting on P2 and P3 was attributable to the accused which the accused denies. To this end, both the Prosecution and the Defence called their own experts on handwriting analysis. It is noteworthy that the Defence only informed the Prosecution of its intention to call a potential expert witness on 15 October 2021 (Day 15 of the trial) during the Case for the Defence and before DW3 Mr Khawaja Mohammad Ashfaq Baba’s testimony.

61     On 18 October 2021, the Defence served a notice pursuant to s 231(1) of the Criminal Procedure Code (Cap 68, 2012 Rev. Ed.) to produce and rely on the expert handwriting report prepared by Ms Melanie Jayne Holt, a Forensic Document Examiner dated 16 October 2021 and to call her as a Defence witness.

62     Subsequently on 21 October 2021, I allowed the Defence’s application for Ms Holt to give evidence via remote communication technology from her home in New South Wales, Australia pursuant to s 28(2) of the COVID-19 (Temporary Measures) Act 2020.

63     I shall first deal with the evidence of the Prosecution’s expert, Ms Nellie Cheng, a Senior Forensic Scientist with the Forensic Chemistry and Physics Laboratory of HSA.

Prosecution’s Expert Evidence

64     Inspector Kumarasamy P Indera had submitted 20 exhibits ie P2 to P22 as listed in Part B of her report[note: 59] to the Forensic Chemistry and Physics Laboratory of HSA on 25 September 2017 at 11.10am and 4 October 2017 at 9.10am respectively. Ms Cheng testified that she received specimen handwriting from three different persons and was asked to determine if any of the three could have written the questioned handwriting. She was also asked to determine if P2 and P3 could be associated with one of the Oriental Carpets invoices (P4).

65     The purpose of the submission as set out at Part C of her report was to examine the various exhibits and to report:

(a)     If the writer of the specimen handwriting in "MKK/0 1" to "MKK/04'' ie Kamran, the writer of the specimen handwriting in "AAS/01", "AAS/02" and AAS/3" to "AAS/10" ie the accused, or the writer of the specimen handwriting in "RBG/01" to "RBG/03'' ie Rehana could have written the questioned handwriting in "CADPKY/01" and "CAD/PKY/02'' ie Exhibits P2 and P3 and

(b)     If the two invoices "CAD/PKY/0 I" and "CAD/PKY/02" could be associated with the specimen invoice No: 0875 in "CAD/PKY/03" ie one of the invoices found in Kamran’s invoice booklet ie P4.

Methodology

66     Ms Cheng testified that she examined all handwriting specimens said to be the specimen handwriting of the writer[note: 60]. She explained that the handwriting specimens were examined using a microscope. She used the methodology written in the laboratory methods manual in her examination. She further testified that she had examined the questioned handwriting P2 and P3 and recorded the handwriting features[note: 61]. She explained the handwriting features she examined were the stroke quality, slants, slopes, pen pressure, formation of characters, relative alignment of letters inside words, relative alignment of the words or punctuation relative to the ruled lines.

67     She elaborated that during document examination, the examiner compares features of the questioned handwriting and then compares the range of variation of the specimen handwriting to see whether the features of the questioned handwriting fall beyond or within the range of variations of the specimen handwriting. She testified that examiners must undergo annual proficiency tests to reduce subjectivity.

68     Ms Cheng explained that as a questioned document examiner, she was not just looking at the pictorial appearance. She looks at the handwriting features namely the pen path, how it is formed, the angle, the pen pressure etc. She further explained that she looks at the list of handwriting features to determine whether it falls beyond or within the range of variations. She follows guides and best practices and stated that there are lists of what handwriting features examiners must go through for every one of the examinations.

69     She testified that she recorded the handwriting features of the request specimens, and the normal specimens obtained from the accused, Kamran and Rehana. She then did a comparison between the features of the questioned handwriting specimens and the features of the normal specimen handwriting. Following that, she evaluated the similarities and differences while factoring the limitations in such an evaluation and then rendered her opinion[note: 62]. She explained that for handwriting examination generally, the limitations would include the specimens or the questioned handwritings being non-original[note: 63].

70     In the present case, Ms Cheng found the request specimen of the accused’s handwriting to be slightly unnatural[note: 64]. She explained that this could be due to the writer’s mental or physical state. Where the unnatural handwriting was intentional, it could be that the writer intentionally ordered or controlled the handwriting habit. She opined that the handwriting was executed at a slow speed. Nevertheless, she testified that this limitation did not affect her conclusion as the writer’s ie the accused’s normal handwriting specimens was submitted[note: 65].

71     Ms Cheng explained that a normal handwriting specimen refers to the handwriting of a writer which was executed in the normal course of life for example writing in credit card or cheques, letters, greeting cards etc[note: 66]. According to her, the disadvantage of a normal specimen is that it may not contain the characters in the questioned handwriting. She further explained the advantage of a request specimen is that the investigation officer could direct the writer to write in accordance with what was contained in the questioned handwriting specimen so that a direct comparison could be made. The disadvantage on a case-by-case basis, is that the writer may produce unnatural handwriting either intentionally or unintentionally. As such, the features in the normal specimen handwriting would be useful as it would show the normal habits on how the writer executes his handwriting[note: 67].

72     During her cross-examination, she agreed that the best practice would be to have handwriting as contemporaneous to the questioned handwriting as possible to avoid the evolution or the change that a person’s handwriting might undergo over time[note: 68]. When the Defence took issue with the fact that the methodology used was not listed in her report, she explained that all HSA scientists refer to the methods manuals in their laboratory and that her laboratory is accredited. There are procedures to follow, and the reports are reviewed by another qualified examiner to ensure quality. According to her, examiners are trained to follow the guidelines and protocols, and the accreditation of the laboratory is reviewed annually[note: 69]. During her re-examination, she explained that the methodology was not stated in her report as she wanted to give the reader concise information of the examination[note: 70].

73     Ms Cheng explained the eight levels of the different degrees of certainty she applied in respect of the level of evidence observed between an unknown writing or signature and the specimens provided namely:

1.     “The writer of this wrote that.” - This is a positive finding indicating that beyond all reasonable doubt the writer of the questioned document is identified. There are significant similarities, and no significant differences noted between the questioned and specimen handwriting. The probability of finding another person at random with similar handwriting is negligible.

2.     “It is highly probable that the writer of this wrote that.” - There are significant similarities and no unexplainable differences noted between the questioned and specimen handwriting, and the possibility that another person has written it is not so remote as to be negligible, but it would still be difficult to find at random another person whose writing is so similar, and the possibility of simulation is equally unlikely.

3.     “It is probable that the writer of this wrote that” - There are similarities noted between the questioned and specimen handwriting. The evidence is insufficient to indicate a high probability but is still points towards common authorship. It could be that the quantity of writing is small, or that there are few characteristic features.

4.     “The possibility of the writer of this having written that cannot be ruled out.” - Although there may be some differences noted between the questioned and specimen handwriting, there still exist a small number of similar features which suggest possible common authorship. One possibility is that there is reason to believe that there is disguise in the specimen handwriting. It could also be because of some limitations in the writing such as no normal specimen writing available.

5.     “The evidence is inconclusive.” - This is used when an effective comparison cannot be conducted. The questioned writing may be disguised or too limited in quantity and nature, or the specimen writing may be unsuitable. In signature comparison, it could also be that the design of the questioned signature is different from that of the specimen signatures and there is no basis for comparison. Another reason could be that only very poor-quality photocopies or facsimile copies are submitted.

6.     “There is no evidence to indicate that the writer of this wrote that.” - This is used when there are differences noted between the questioned and specimen writing. The evidence is insufficient to indicate a high probability but still points towards different authorship. It could be that only photocopied documents are available, or that the questioned writing is limited in nature, or that the number of specimen writing available is limited.

7.     “It is unlikely that the writer of this wrote that.” - This is used when there are significant differences in features such as line quality and pen pressure noted between the questioned and specimen writing, and disguise can be ruled out, but the number of specimen writing available may not be enough to exclude him completely.

8.     “The writer of this did not write that.” - This is used when the forensic scientist is satisfied that the differences between the questioned and specimen writing are sufficient and significant enough to exclude him.

She explained that different countries have different levels of conclusions.

74     In her expert report, when Ms Cheng compared the questioned handwriting with the accused’s specimen handwriting, she found similarities in formation and relative alignment of strokes of the English alphabet letters and numerals between them. To illustrate, she provided examples of the similarities she noted at paragraph 4 of her report and referred to the attached Comparison Chart for more illustrations.

75     At paragraph 5, she opined that it is probable that the accused who was the writer of the specimen handwriting in "AAS/01", "AAS/02" and "AAS/3" to "AAS/10", wrote the questioned handwriting in the two invoices P2 and P3. She arrived at this conclusion of ‘probable’ after evaluating the weight of the similarities and the differences. She explained that when she evaluated the features, the evidence was insufficient to indicate a higher probability which is at level 2 or level 1 as set out above.

76     At paragraph 6, she stated that when she compared the questioned handwriting with Kamran’s normal and request specimens, she found differences in formation and relative alignment of strokes of the English alphabet letters and numerals between them. Hence, she opined that there is no evidence to indicate that Kamran wrote the questioned handwriting in the two invoices.

Defence’s Expert Evidence

77     I now turn to the evidence of the Defence’s expert witness, Ms Holt. Initially, she testified via remote communication technology using the Zoom application from her home in Australia. She was only present in court midway through the trial during her cross-examination by the Prosecution. Unlike Ms Cheng, I noted that she had not examined the various physical handwriting specimens under a microscope and excluded several request specimens namely P14, P18 and page 124 of P19 (as shown below) although the accused had admitted that they were his handwriting.

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78     Only when she was present in Court, she used an eyepiece to examine some of the handwriting specimens including P2 and P3. I noted that although she acknowledged in her report that the documents may be legitimate specimens of the accused’s handwriting, she opined that they do not add value to the comparison[note: 71]. In my view, this limited the range of variations that she had considered in her opinion unlike Ms Cheng who had considered all the specimens.

79     In her report (D16), Ms Holt stated the purpose of her examination was to provide an expert opinion as to whether the handwriting on the disputed invoices P2 and P3 was written by the writer of the specimen material labelled P8 and P9 ie requested specimen of the accused and P13 - P20 (“seized specimen”). I observed that unlike Ms Cheng’s report who was given the specimens of three subjects and was asked to determine if any of the three persons could have written the questioned handwriting, the focus of Ms Holt’s report was limited to specimen materials associated with the accused.

80     I noted in her report, she had set out the limitations of her examination. She acknowledged that all the documents provided by the Defence for examination are reproductions ie non-originals. She stated that the examination of handwriting on non-original documents is limited to the pictorial features (such as shapes, proportions, relative placement, relative size and height relationships, baseline alignment, spacing, slant, and apparent structures and dynamics) that are evident on the copies submitted.

81     She further stated that it is often not possible to determine with certainty the finer details of structure (such as pen stroke direction, the location and nature of some pen lifts/pen stops) and dynamics (such as fluency and pen pressure variations) based on non-original (copy) documents[note: 72].

82     She also stated that there are limitations in the specimen material provided. She had indicated that apart from the two sets of requested specimen material P8 and P9 (provided by the accused), the authorship of the other documents is uncertain and only presumed to be that of the accused, even when the accused had admitted that the request specimen handwriting belongs to him. She opined that some of the documents likely or potentially contain the writings of more than one person. She explained a lot of the writing on these documents is lowercase cursive. She opined that this style of writing is not directly comparable to the handwriting contained on the disputed invoices, which is primarily uppercase hand printing[note: 73].

83     Ms Holt prepared a handwriting examination report[note: 74] and a supplemental expert report[note: 75]. As submitted by the Defence, in her report she sets out in detail inter alia:

(a)     the methodology employed and the examinations conducted by Ms Holt;

(b)     the premise and criteria of her analysis; and

(c)     her findings and the basis of those findings.

84     She employed the following four-step examination procedure based on published standards for handwriting comparison produced by various scientific organisations[note: 76]:

(a)     First, the exhibits are analysed by performing internal comparisons and evaluations before being subdivided into groups according to comparable styles. Consideration is given to: (1) handwriting features such as arrangement, design, and strokes; (2) the habits of ‘document completion’ such as alignment, size, and writing style; and (3) the variations displayed in these features.

(b)     Second, a comparison is made between the elements and features of each exhibit, and the similarities and differences between the exhibits are noted.

(c)     Third, the significance of the findings at the second stage is evaluated against various propositions and sub-propositions. Consideration is given to the presence of unnatural or distorted writing behaviour which may restrict the evaluation. An opinion is rendered based on the evaluation.

(d)     Finally, the opinion is verified through peer review by a second qualified examiner who reviews the submitted material and forms an independent opinion. The opinion issued in the final report is based on the consensus between the examiner and the “peer review” examiner.

85     It was highlighted by the Defence that in her report, Ms Holt stated that, to find that the same person ie the accused made both the specimen handwriting and the questioned handwriting, two criteria must be satisfied[note: 77]:

(a)     there must be sufficient individual features, in combination, that preclude the accidental occurrence of the writing of another person; and

(b)     there must be no significant or fundamental differences.

86     Ms Holt elaborated that this “combination” refers to the “cumulative value of those similarities and of difference[s] observed, that will help you inform your final opinion”. She explained further that if only similarities are observed between the questioned and specimen handwriting, with no unaccounted-for differences, the evidence would support that both handwritings were made by the same author. However, where both similarities and differences are found, one would have to weigh both observations, resulting in either a “very qualified opinion” or an “inconclusive opinion”[note: 78].

87     Ms Holt explained that a significant or fundamental difference refers to a difference in writing habit, and that such habits are more telling of authorship than similarities because they allow an expert to distinguish between differences resulting from different writers or from variations by a single writer[note: 79]. This is because two writings can be similar for several reasons including the age of the writer, how a certain group of writers are taught to write at school, or the singular nature of the design of some letters and numbers[note: 80].

88     In distinguishing between the types of differences, Ms Holt further explained that:

“[I]f they’re fundamentally different, and that’s in a sense that the construction of the letters are very different between the 2 samples, then it starts to raise the question: Were they written by different people? If the differences are potentially just variation that may not be displayed. So, that’s what you really need to work out. So if there’re fundamental differences, then at starting, potentially, it should point towards authorship by another person.[note: 81]”

According to Ms Holt, generic and class similarities should not outweigh differences. During her testimony, she repeatedly maintained that one significant or fundamental difference is sufficient to support that someone else other than the specimen writer wrote the questioned writing, and that more weight should be placed on differences than on similarities[note: 82]. I noted that in her analysis, unlike Ms Cheng she has used 7 tiers of certainty namely: Extremely strong support, very strong, strong, moderately strong, moderate, limited, inconclusive.

89     By employing the methodology above, Ms Holt concluded as follows:

(a)     There is very strong support that someone else other than the accused wrote “ROYAL KASHMIR TRADING” and the product information details on the disputed invoices based on the “repeated and fundamental differences in virtually every aspect of the writing including, but not limited to, size, letter design, slant and skill level between the questioned and specimen writing strongly support these entries being written by someone other than the specimen writer ie the accused.

(b)     There is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the specimen writer”.

Prosecution expert’s findings and conclusion preferred

90     All things considered; after a careful examination of the evidence of both experts before me, I preferred Ms Cheng’s evidence that it was probable that the accused had written the questioned handwriting in P2 and P3 for the reasons as set out below.

91     Ms Cheng had the benefit of examining the original specimens submitted by the police to HSA using a microscope. I agreed with the Prosecution that this enabled her to derive detailed handwriting features. She was able to examine the handwriting features such as stroke quality, slants, slopes, pen pressure, formation of characters, relative alignment of letters inside words, relative alignment of the words or punctuation relative to the ruled lines.

92     In contrast, Ms Holt’s examination of the handwriting on non-original documents ie reproductions of the specimens is limited to the pictorial features (such as shapes, proportions, relative placement, relative size and height relationships, baseline alignment, spacing, slant, and apparent structures and dynamics) that are evident on the copies submitted. As submitted by the Prosecution, Ms Holt was only able to examine reproductions, which she admitted could result in masked or distorted features, rendering her conclusion potentially inaccurate[note: 83]. While Ms Cheng could identify features, such as the fact that the “H” in P2 and P3 was formed using 3 separate strokes, Ms Holt stated that she could not see such a feature using reproduced images which she described to be of “poor” quality[note: 84].

93     Ms Holt acknowledged in her report that it is not possible for her to determine with certainty the finer details of structure such as pen stroke direction, the location and nature of some pen lifts/pen stops) and dynamics such as fluency and pen pressure variations of the documents. I was not convinced that this limitation was mitigated by her use of the zooming or magnifying function on her computer screen when examining the reproductions or her use of an eyepiece in Court to examine some of the physical specimens. I noted that there was no attempt by the Defence to arrange for Ms Holt to examine the physical specimens under a microscope although they were with the police after Ms Cheng returned them.

94     I noted that Ms Cheng had examined all specimens submitted by the police unlike Ms Holt who had excluded the reproductions of P14, P18 and page 124 of P19 (as shown at [66] above) as she regarded them as being “scrappy bits of paper”[note: 85]. This was even though the accused admits it was his handwriting. Ms Holt maintained that her conclusion would not change even though she had not considered them and had only looked at some of them in court. With respect, I agreed with the Prosecution that her exclusion of these specimens had the effect of limiting the range of the writer’s ie the accused’s handwriting features and range of variation she had considered in her examination.

95     I also noted that during her cross-examination, she agreed that for her to be able to assess or evaluate the writer’s range of variations, the amount of the specimens matters. She further agreed that it was unsafe when comparing handwriting to base it on a very limited specimen of handwriting features. The only potential exception would be if the writer has very complex and very consistent writing. She qualified the amount needed by stating it is writer-dependent[note: 86].

96     Further, I agreed with the Prosecution that Ms Cheng is more experienced than Ms Holt and has been a document examiner for a significantly longer period[note: 87]. I noted that Ms Cheng testified that examiners must undergo annual proficiency tests to reduce subjectivity and that her laboratory was accredited. She follows guides and best practices as well as the lists of what handwriting features examiners must go through for every one of the examinations. Hence, I found her evidence to be convincing and objective during her testimony before me.

97     During her cross-examination, Ms Holt accepted that nobody writes the same words and letters the same way twice. She further agreed that there would be some variation even within the same writer when he writes the same words again and again[note: 88]. Nevertheless, during her cross-examination when shown examples of similarities by the Prosecution, she doggedly maintained that there was nothing similar when comparing the accused’s specimen and questioned handwriting. Yet, she had concluded there is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the specimen writer. As Ms Holt is in private practice and is not with an accredited laboratory, it is unclear whether Ms Holt goes for an annual proficiency test to reduce the subjectivity of her assessment.

98     In her testimony, I observed that Ms Holt placed more weight on differences in relation to habit, structure and design than on similarities. According to her, significant differences have more weight than significant similarities. She explained that the consensus between the authorities on handwriting[note: 89] was that more weight should be attributed to differences in handwriting than similarities, and that repeated small differences are sufficient to establish clearly that writings are the work of two individuals even where there are a considerable number of general similarities.

99     I noted that in the extract submitted by the Defence titled “Handwriting Identification: Facts and Fundamentals” by Huber and Headrick (D20) at page 47, the authors observed that none of the widely recognised authorities on handwriting, Osborn, Hilton, Conway, Harrison or Ellen, each of whom have spoken on differences and of the considerations they must give, has provided definitions of the terms with which examiners might work with:

In a world of material things, virtually all things are different, if the examination of them is carried out at an appropriate level of precision. This is particularly so in the comparison of handwritings, for no two samples of the exact same text, by the same individual, with the same writing instrument, on the same date, and under the same writing and writer conditions will be identical in all aspects. Such being the case, the document examiner or handwriting expert is constantly challenged by the same provocative questions, What is a difference and when does it become significant?

Much has been written on the subject of differences, but as McAlexander points out, little has been provided to clearly establish for us what a fundamental difference is and what makes a difference significant. None of the widely recognised authorities on handwriting, Osborn, Hilton, Conway, Harrison or Ellen, each of whom have spoken on differences and of the considerations they must give, has provided definitions of the terms with which examiners might work with…”

100    I further noted that at page 49 of the extract, the authors had suggested a usable definition as set out overleaf:

Definition: In a comparison of questioned and known writings, a difference in a (questioned) writing is (1) a disparity in one of its discriminating elements of style or (2) a divergence in one of the discriminating elements of execution; either of which exceeds the expected range of natural variations for these elements within the writings within which it is being compared. In either case the difference is otherwise inexplicable.

101    I observed that while the general position taken by the recognised authorities is that even a single difference can outweigh a number of similarities, the exception would be when the divergence can be logically accounted for by the facts surrounding the preparation of the specimens or that the difference is capable of reasonable explanation. In the same extract at page 51, the authors opined that some apparent differences are not true differences indicative of different authors, but simply a variation of the same author resulting from extenuating circumstances.

102    In the present case, I was of the view that the repeated and fundamental differences observed by Ms Holt in her examination to justify her first finding that the specimen writing strongly support the entries “ROYAL KASHMIR TRADING” and the product information details being written by someone other than the accused, are not true differences. This is considering her own finding that there is strong support that the accused wrote the address and date on the disputed invoices based on the “similarities between the questioned and specimen writing provides strong support that these entries were naturally written by the accused. This coheres with the Prosecution’s case that Kamran had provided the accused with an empty invoice booklet for the latter to fill up with Oriental Carpet’s stock number, the description of the carpets as well as the amount for the carpets that were allegedly defective.

103    Accordingly, I accepted the Prosecution’s position that the handwriting in the two invoices is attributable to the accused, not Mr Kamran. Although, the accused’s claims that he never wrote or made any changes to the two invoices, it was undisputed that both the Prosecution’s handwriting expert and the Defence’s handwriting expert agree that the accused wrote the name and address of Royal Kashmir. Based on the totality of the evidence before me, I accept the Prosecution’s case that the accused was the author of the two invoices and that he had forged the particulars and the signatures in the said invoices.

104    I disagreed with the Defence’s submissions that the Prosecution’s case was essentially dependent on its expert evidence to establish that the accused wrote the disputed invoices P2 and P3. As discussed above, the Prosecution’s case was not where the Prosecution was relying solely on Kamran’s uncorroborated testimony and/or only on the handwriting expert’s evidence. Instead, the Prosecution relied not only on Kamran’s evidence but also the evidence of other witnesses as well as documentary evidence such as Kamran’s stock book and his accountant’s Ledger Account in support of its case.

105    Based on the totality of the evidence before me, I found the evidence of the Prosecution’s witnesses to be credible and reliable. Their testimonies corroborate each other and were consistent in material aspects and was externally consistent with the extrinsic evidence by the various objective documentary evidence. I also found that their evidence was also externally consistent with the extrinsic evidence from the various Prosecution witnesses.

106    In contrast, I found Rehana to be an unreliable witness. I agreed with the Prosecution that her testimony in court was materially inconsistent with her statement to the police as to when the goods in the two invoices were purportedly delivered. When the inconsistency was pointed out to her, although she initially testified that the statement was accurately recorded from her, she then claimed that the statement was inaccurately recorded. It was clear from her evidence before me that she came to Court to give evidence in favour of the accused and not the truth.

107    I also found Mr Khawaja Mohammad Ashfaq Baba to be an unreliable and immaterial witness. He has no knowledge regarding whether the two invoices were forged or whether Kamran possessed the goods stated in the invoices. It was clear that he took the stand to assist the accused. I agreed with the Prosecution that there was reason to doubt his impartiality as he had been the accused’s mentor since he was a child and that he has stated on multiple occasions that he did not want to see Kamran and the accused locked in legal proceedings.

108    Consequently, I rejected the Defence’s suggested motive that the present charges arose out of a long running civil dispute between the accused and Jan. The Defence had posited the discontinuance of the civil suit had kicked started the CAD investigations against the accused after Jan had alleged that the accused had used fraudulent invoices and obtained the invoices from Allied World’s lawyers. I agreed with the Prosecution that the Defence’s reliance on Jan’s role was a red herring.

109    All things considered, I found that the accused had forged the two Oriental Carpets invoices between November 2015 to April 2016 by fraudulently writing and signing on these invoices to deceive Allied World into delivering the said insurance payout. At the conclusion of the 25-day-trial, I was satisfied that the Prosecution had proven its case in respect of two charges in DAC 940886 of 2018 and DAC 940887 of 2018 beyond a reasonable doubt and convicted the accused on these charges.

Sentencing

Prescribed Penalty

110    The prescribed penalty for an offence of forgery for the purpose of cheating under s 468 of the Penal Code is imprisonment for a term which may extend to 10 years and shall be liable to a fine.

Antecedents

111    The accused had no antecedents.

Prosecution’s Submissions on Sentence

112    The Prosecution had sought a sentence of 2 years 6 months to 3 years’ imprisonment per charge, with both sentences running concurrently.

113    The Prosecution asserts that general deterrence is the primary sentencing consideration in the present case. As a financial institution offering insurance services, Allied World is an important part of Singapore’s financial market. In Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 (“Law Aik Meng”), the Justice V K Rajah identified offences that “affec[t] the delivery of financial services and/or the integrity of the economic infrastructure” as offences which attract general deterrence.

114    It was submitted that in Tan Thiam Wee v Public Prosecutor [2012] 4 SLR 141 (“Tan Thiam Wee”), the Honourable Justice Lee Sieu Kin (“Lee J”) agreed that the use of false invoices to cheat financial institutions “undermined the confidence of the financial industry and adversely affects the economic infrastructure”. It was highlighted that as Lee J went on to explain:

Financial institutions form a key part of the economic system and any abuse results in a loss of confidence requiring additional safeguards to be taken. This will lead to increased costs which will be passed to all users of the system. Thus, not only do such crimes cause direct monetary loss to the financial institution concerned, the resultant loss of confidence and increase in compliance cost is borne by the community as a whole.

115    It was further submitted that the failure to stem the tide of such offences that target or affect financial institutions or compromise the integrity of financial systems, threatens Singapore’s standing as an international financial and commercial hub: see Law Aik Meng at [24(e)] and Public Prosecutor v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando Payagala”) at [88].

116    The Prosecution asserts that insurance fraud, such as that committed in the present case, falls within the scope of offences that affect the delivery of financial services envisioned in Law Aik Meng, and therefore justifies a deterrent sentence. It was submitted that as the Court held in Public Prosecutor v Tijan Syafiq Bin Selamat [2012] SGDC 198, a case involving motor insurance fraud, at [15]:

[I]t cannot be denied that the provision and underwriting of motor insurance is a form of financial service provided to drivers and vehicle owners by an insurance company which is a financial institution. I would therefore consider motor insurance fraud cases to fall within this category of offences thereby justifying a deterrent sentence.

… These losses have and will continue to result in increasing costs of motor insurance which are passed on to consumers.

According to the Prosecution, the observations above equally apply to all forms of insurance fraud.

117    It was submitted that general and specific deterrence also come to the fore where the offence is difficult to detect (Law Aik Meng at [25(d)]) or where the offence is sophisticated and “replete with carefully orchestrated efforts and steps to avoid detection” (Fernando Payagala at [42]). The Prosecution asserts that the present offences embody these attributes and must consequently attract a deterrent sentence.

Aggravating factors

118    According to the Prosecution, there were several factors that justify a significant deterrent sentence in this case namely:

The amounts involved are substantial

119    Allied World made the maximum insurance payout of $653,500 to Royal Kashmir based on the policy limit. It was undisputed that Allied World would not have made any insurance payout if it had known that any invoice submitted by the accused was forged. Further, the amount of harm caused by the accused’s offences can be said to be $653,500. However, in the present case the Prosecution accepted that had the accused simply omitted to submit the questioned invoices, Allied World’s payout would have been the same, as the remaining invoices were sufficient to cross the insurance policy’s payout limit.

Offences highly planned and pre-meditated

120    The offences were highly planned and pre-meditated, and involved deceiving Kamran that he needed Oriental Carpets’ invoice book to re-issue genuine invoices, only to then forge invoices involving carpets with a purported value of more than 10 times that of its most expensive genuine carpet sales. It was submitted that even after the accused found out that he was being investigated by the police, he attempted to frustrate investigations by providing the carbon copies of the invoice to Kamran and telling him not to give them to the police. The Prosecution asserts that the premeditated nature of the offences attracts specific deterrence and justifies a heightened sentence: see Law Aik Meng at [22] and Fernando Payagala at [39].

Offences committed for profit

121    The offences were committed for profit. Persons who act out of pure self-interest and greed will rarely be treated with much sympathy: see Zhao Zhipeng v Public Prosecutor [2008] 4 SLR(R) 879 at [37].

Difficulty in detection

122    The offences were difficult to detect. This trial involved the calling of 17 witnesses, including two handwriting experts with differing opinions on whether the accused had authored the two forged invoice.

Lack of remorse

123    The accused had shown no remorse. The accused showed no hesitation in lying repeatedly, providing four materially different versions of events on the provenance of the invoices, then making baseless allegations against an officer of the Singapore Police Force after it was pointed out that his police statements were inconsistent with his evidence in Court.

124    The Prosecution asserts that of equal importance was the Lucas lie the accused made, claiming that he had never wrote or made changes to the invoices in question, a position that went against his own expert’s testimony, and a position that the accused has maintained until today. It was submitted that such a lack of remorse is a significant aggravating factor: see Thong Sing Hock v Public Prosecutor [2009] 3 SLR(R) 47 at [55].

125    Conversely, it was the Prosecution’s case that there were no mitigating factors in the present case.

The appropriate sentence

126    The Prosecution sought a sentence of 2 years 6 months to 3 years per charge, with both sentences running concurrently. It was submitted that the charges should not be distinguished by the amount in each invoice, as either invoice being found to be fraudulent would have resulted in Royal Kashmir not being paid a single cent.

127    It was further submitted that Chief Justice Sundaresh Menon observed in Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756 that the primary yardstick in sentencing for an offence of cheating (and similar white-collar offences) will often be the value of the property involved (at [48]). Similarly, in Wong Kai Chuen Phillip v Public Prosecutor [1990] 2 SLR(R) 361, Justice Chan Sek Keong (as he then was) held that it was a matter of “common sense” that all other things being equal, the larger the amount misappropriated, the greater the culpability of the offender and the more severe the sentence of the Court.

128    The present offences fall under s 468 Penal Code, which is forgery for the purpose of cheating. The Prosecution acknowledged that Allied World would have made the same payout of $653,500 to Royal Kashmir even if the accused had not submitted the two forged invoices, as the insurance payout ceiling of $653,500 would have been reached by considering the other invoices submitted by the accused. According to the Prosecution, the evidence is unclear on whether Allied World had included the sums in the two forged invoices in the payout that was eventually made.

129    Given these circumstances, it was submitted that guidance be drawn from Public Prosecutor v Leck Kim Koon [2020] SGDC 292 (“Leck Kim Koon”), a case involving offences under s 420 Penal Code in the context of invoice financing fraud where no direct financial harm was caused because the offender had duly repaid the victimised financial institution in full and on time. It was highlighted that the maximum prescribed imprisonment term for s 420 Penal Code is the same as s 468 Penal Code.

130    In Leck Kim Koon, the untraced offender deceived various banks into disbursing loans pursuant to invoice financing applications, by providing Bills of Lading that bore no relation to the goods stated in the invoices to be financed. The offender claimed trial to 6 charges involving a disbursed sum of USD 622,783.95 (approx. SGD 878,000). The accused had repaid this sum in full to the banks in line with the due dates of the loans; the banks suffered no loss. The Court considered that the appropriate sentence was 42 months’ imprisonment but imposed a reduced 36 months’ imprisonment on account of the accused’s ill health: at [295]. The sentence was upheld on appeal in by Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050. The offender’s criminal motion for a criminal reference to refer two questions of law of public interest to the Court of Appeal was dismissed in Leck Kim Koon v Public Prosecutor [2022] 2 SLR 595.

131    The Prosecution asserts that the substantial custodial term imposed in Leck Kim Koon makes it clear that a lengthy and deterrent sentence should be imposed on offenders who cheat financial institutions, even when no actual loss is caused. It was submitted that the present case is like Leck Kim Koon as both cases involve fraud on financial institutions where little harm was caused, save for the fact that the accused does not suffer from any terminal illness. It was further submitted that as the amount involved in the present case is relatively lower ($653,500 as compared to $878,000 in Leck Kim Koon), the sentence of 42 months’ imprisonment in Leck Kim Koon should be calibrated downwards to 2 years 6 months to 3 years’ imprisonment per charge in the present case.

Plea in Mitigation

132    The Defence sought a sentence of not more than 24 months’ imprisonment in respect of each charge, and for the sentences to run concurrently.

Submissions on sentence

133    It was submitted in Toh Suat Leng Jennifer v Public Prosecutor [2022] 5 SLR 1075 (“Jennifer Toh”), Justice Vincent Hoong held at [43] that a single starting point approach is inappropriate for offences under section 468 of the Penal Code. Instead, the Court held at [60] that:

“While relevant sentencing precedents serve as good reference points to determine the appropriate sentence to impose, due regard must be had to the specific facts and circumstances of each case, especially the relevant offence-specific and offender-specific factors.”

134    In that case, the appellant, an insurance agent, pleaded guilty to three charges under s 468 of the Penal Code after forging three insurance policies to obtain more money from her client and a charge under s 420 of the Penal Code. For the first two charges under s 468, the appellant forged two AIA insurance contracts, each promising returns of $52,340 if the first complainant put in $50,000 up front. The first complainant agreed and delivered a total of $100,000 to the appellant, who eventually made restitution of $21,200 to the complainant. For the third charge s 468, the appellant forged a HSBC insurance policy and presented it to the second complainant who had just sold his house and wanted to invest the money he obtained from the sale. The complainant signed the forged document and gave $32,000 in cash to the appellant. No restitution was made in respect of the second complainant. The court below imposed a sentence of 18 months’ imprisonment for the first two s 468 charges and 16 months’ imprisonment for the third s 468 charge.

135    Having regard to the facts in that case, Hoong J held at [61] – [70] that the following sentencing factors were relevant:

(a)     The amount involved across all the charges including the TIC offences was $330,878.

(b)     By committing the offences as an insurance agent in the employ of prominent institutions, the appellant had seriously undermined the delivery and integrity of insurance services in Singapore.

(c)     The appellant abused the trust of the complainants as they were her clients at the material time. She took advantage of them by misusing the authority of the insurance companies she worked for on multiple occasions.

(d)     The offence entailed a high degree of premeditation. The appellant carefully planned and executed her scheme by forging insurance contracts using copies of existing contracts.

(e)     The appellant’s meticulous forging of the documents based on existing contracts made the offences difficult to detect as they would have resembled standard insurance contracts to the unsuspecting victims

(f)     The total period of offending was lengthy; it spanned a period of three years.

(g)     The Court did not accord significant mitigating weight to the partial restitution of $26,200 made to the complainants as they were insignificant when compared to the losses caused to them.

(h)     The Court accorded some mitigating weight to the appellant’s plea of guilt.

136    It was submitted that considering the factors above, Hoong J affirmed the sentences imposed and dismissed the appeal against sentence.

137    The Defence asserts the present case was far less egregious than Jennifer Toh. Whilst a larger amount of money is involved, and the accused was convicted after a trial, he did not commit these offences in any official capacity or position of trust. The accused forged the two invoices at or around the same time ie the offending did not persist for a lengthy period and unlike the entire contracts that were forged in Jennifer Toh, did not entail a high degree of premeditation. It was submitted that it was thus less difficult to detect than those forged contracts.

138    The Defence further orally asserts that Jennifer Toh involved a case where the undermining of the insurance industry is abundantly clear as the accused there was an insurance agent who abused her position of trust and cheated her clients. This was not the case in the present case as the accused has no relation to the insurance company. Even if the Court is of the view that some degree of undermining was done to the integrity of the insurance industry, it should be considered based on the facts and circumstances.

139    The Defence further asserts that whilst the total amount involved serves as a yardstick for the appropriate sentence, the sentence should not be premised solely on the amount involved (see Jennifer Toh at [62]). The relevant offence-specific and offender-specific factors must be considered. This principle is consistent with case precedents.

140    In Public Prosecutor v Tan Han Hua [2012] SGDC 480 (“Tan Han Hua”), the accused was similarly sentenced to 16 to 18 months’ imprisonment after pleading guilty to five proceeded charges under s 468 of the Penal Code despite the total amount involved, being $510,000, nearly doubling that in Jennifer Toh.

141    It was highlighted that although the amount involved in Tan Han Hua is closer to that in the present case, the facts are similarly more egregious. Unlike the present accused, in Tan Han Hua the offender abused his position of trust as an accountant of DBS Bank and forged cheques to cheat the bank on 13 occasions. He repeated the forgeries over a period of 5 months, during which the offences remained undetected, and whilst some restitution was made, the Court accorded little mitigating weight to this as the restitution was relatively low compared to the total amount involved. Finally, the accused had eight charges taken into consideration (TIC) for the purpose of sentencing.

142    It was submitted that considering the sentences of 18 months’ imprisonment imposed on the offenders in Jennifer Toh and Tan Han Hua despite their significantly more egregious facts, a sentence of not more than 24 months’ imprisonment was appropriate and sufficiently accounts for the accused’s conviction after a trial. It was further submitted that in those two cases, the amounts in each charge were made clear by the Prosecution and the Court considered the total amount including the TIC charges. The Defence asserts the present case was different in that it was unclear what the amounts in the respective charge should be. In the present case, the accused was not charged in respect of the other invoices and there was no finding of impropriety in respect of those invoices. The total amount for the two invoices is $253,852.60 and the other invoices were not the subject matter of any TIC charges such that the difference of about $400,000 could be accounted for.

143    It was highlighted that the Prosecution had acknowledged that the other invoices were sufficient on their own to cross the insurance policy payout limit. For this reason, the Defence asserts that the amount involved as a sentencing factor should be limited to the amounts claimed in respect of each of the invoices in the charges. Accordingly, the sentences should be calibrated downwards by two-thirds to account for this.

144    It was reiterated that the present offences neither involved an abuse of trust nor did it undermine the delivery and integrity of insurance services by virtue of the accused being in the employ of insurance institutions at the material time. There were no offences taken into consideration for the purpose of sentencing, and the two invoices forming the subject matter of the charges were made at or around the time ie the period of offending was not prolonged. Accordingly, it was submitted that the offences formed part of a single transaction and, thus, the sentences should be ordered to run concurrently.

Personal background

145    The accused is presently 55 years old. He was born in Cashmere, India, and came to Singapore in 2001 to work at a carpet shop as a sales manager. He met his wife in Singapore sometime in 2003 and the pair married in 2004. It was highlighted that prior to these offences, he had never committed any criminal offence in any jurisdiction.

146    According to the Defence, whilst they have no children, the accused works hard to provide for himself and his wife as the family’s sole breadwinner. He works as a captain of Opus Bar & Grill, a restaurant situated in Voco Orchard Singapore. He draws an hourly salary of $14 and works between six to ten hours for six days a week; his monthly salary varies between $2,000 to $3,300.

147    The Defence asserts that the proposed sentence was sufficiently deterrent as the accused would not only be incarcerated for a lengthy period, but his absence from the household would negatively impact his family’s finances and his unemployed wife.

Prosecution’s Reply

148    In response to the Defence’s submissions that the sentences should be calibrated downwards by two-thirds, the Prosecution asserts that the Defence was seeking to amend their position on the total harm to $253,000 instead of $653,000, without basis. It was highlighted that the Defence in their written mitigation had accepted that the harm is the full payout at $653,500. It was also an undisputed fact accepted by the Defence during the trial and they never sought to put a different case forward.

149    It was submitted that the Defence assertion’s that computing the harm in that manner would warrant a two-thirds reduction in the sentence was incorrect because the amount involved was not even two-thirds less than $653,500. Further such a simplistic calculation failed to take into account the aggravating factors involved which would remain the same regardless of the amount.

150    The Prosecution asserts that the Defence’s attempt to explain away some of the aggravating factors involved was without basis. The Prosecution maintained that the accused committed the acts with significant premeditation. Apart from the deception to Allied World, there was the deception of Kamran and the attempted deception of the police as well.

151    Further, it was highlighted even after numerous tranches and multiple handwriting experts, the Defence claimed that the accused’s offences were not difficult to detect. The Prosecution asserts that it was difficult to see how this submission could stand.

152    Lastly, the Prosecution submitted that the Defence’s position that the accused did not undermine the financial services of insurance companies by virtue of being their employee misses the mark. What was relevant is the fact that the accused undermined the delivery of financial services, employee or not. This was an aggravating factor that is set out in case law: see Law Aik Meng, Tan Thiam Wee and even Leck Kim Koon which was endorsed by the Court of Appeal where the accused persons were similarly not employees of the insurance industry. The Prosecution asserts that the Defence had not provided any basis to state that an insurance agent’s offence would affect the integrity of the financial system more than a claimant’s offence and there was no basis to say so.

Sentencing considerations

General deterrence

153    The offence of forgery for the purpose of cheating under s 468 of the Penal Code carries a mandatory custodial sentence of up to 10 years. The substantial length of the maximum sentence is a clear indication of the seriousness of such offences and of Parliament’s intention that such offences should attract heavier sentences as a form of deterrence. Hence, general deterrence is the primary sentencing consideration in the present case.

154    Further as the present offences involves fraud committed on a financial institution offering insurance services, it clearly fell within the scope of offences that affect the delivery of financial services envisioned in Law Aik Meng, a deterrent sentence was therefore justified.

155    In my determination of the appropriate sentence to be imposed, I was guided by Hoong J in Jennifer Toh who held at [60] that due regard must be had to the specific facts and circumstances of each case, especially the relevant offence-specific and offender-specific factors. In that case, Hoong J had set out at [62] to [70] some of the relevant sentencing factors for an offence under s 468 which were applicable in the present case namely:

(a)     the amount involved;

(b)     the fact that the offences undermined the delivery and integrity of insurance services in Singapore;

(c)     the abuse of trust vis-à-vis the victims;

(d)     the premeditated nature of the offences;

(e)     the difficulty of detecting the offences.

The amounts involved are substantial

156    Acting on the invoices including the two Oriental Carpets invoices submitted by Kamran to its loss adjusters, Allied World made an insurance payout of $653,500 to Royal Kashmir based on the policy limit. It was undisputed that it was a condition of the policy[note: 90] that if the claim was fraudulent ie any invoice submitted by the accused was forged, Allied World would not have made any insurance payout.

157    Hence, I agreed with the Prosecution, the amount of harm caused by the accused’s offences can be said to be $653,500. It was immaterial that had the accused simply omitted to submit the questioned invoices, Allied World’s payout would have been the same, as the remaining invoices were sufficient to cross the insurance policy’s payout limit. The fact remains that Allied World made a payout of $653,500 based on the totality of the 26 invoices submitted in support of his insurance claim for S$1,004,730.39. Hence, I disagreed with the Defence assertion’s that should be a two-thirds reduction in the sentence as the harm involved was limited to the sum of the two Oriental Carpets invoices.

Offences highly planned and pre-meditated

158    I also agreed with the Prosecution that the offences were highly planned and pre-meditated, as it involved deceiving Kamran that he needed Oriental Carpets’ invoice book to re-issue genuine invoices to support his insurance claim. I further agreed with the Prosecution that Kamran attempted to frustrate investigations by providing the blue copies of the invoices to Kamran and telling him not to give them to the police.

159    Apart from the deception to Allied World through the loss adjusters, there was the deception of Kamran and the attempted deception of the police as well. Hence, I disagreed with the Defence assertion that Kamran’s acts were not highly pre-meditated. Such a premeditated nature of the offences attracted specific deterrence and justifies a heightened sentence: see Law Aik Meng at [22] and Fernando Payagala at [39].

Abuse of trust vis-à-vis the victim

160    It was undisputed that Kamran regarded the accused as a very good friend, and they had known each other about 10 to 15 years prior to starting the business. Furthermore, the accused had been buying carpets from Oriental Carpets through Kamran since prior to 2013. The accused had clearly abused the trust Kamran had in him when he obtained the empty invoice book from the former and fraudulently created two forged invoices by writing false material particulars and signing on two empty Oriental Carpets invoices.

161    Hence, I disagreed with the Defence’s submissions that the present offences neither involved an abuse of trust nor did it undermine the delivery and integrity of insurance services by virtue of the accused being in the employ of insurance institutions at the material time. I agreed with the Prosecution that it was immaterial that in any official capacity or position of trust. What was relevant is the fact that the accused undermined the delivery of financial services, employee or not.

Offences committed for profit

162    In the present case, the accused had sought to unlawfully benefit from the rainwater damage to his stock at 40 Arab Street in the course of his insurance claim. I agreed with the Prosecution that it was clear that the offences were committed for profit. As highlighted by the Prosecution, persons who act out of pure self-interest and greed will rarely be treated with much sympathy: see Zhao Zhipeng v Public Prosecutor [2008] 4 SLR(R) 879 at [37].

Difficulty in detection

163    I agreed with the Prosecution that the offences were difficult to detect as the present case involved the calling of 17 witnesses to establish the chain of events as well as two handwriting experts with differing opinions on whether the accused had authored the two forged invoice.

164    I noted even the loss adjusters who were tasked to investigate the claim were deceived as it was difficult to verify the large number of items as well as the individual carpet retailers’ invoices that came from multiple sources including those from overseas. It appeared that all these invoices submitted by the accused were accepted at face value as the loss adjusters had rejected items of claim without any supporting invoices.

Lack of remorse

165    I also agreed with the Prosecution that the accused had shown no remorse. The accused showed no hesitation in lying repeatedly, providing four materially different versions of events concerning the delivery of both the carpets and the invoices. Although the accused did not dispute the voluntariness of his statements, he made allegations against the police after the inconsistencies between his police statements and his testimony were pointed out.

166    In my calibration of the appropriate sentence, I was guided by the sentences imposed in Leck Kim Koon and Jennifer Toh based on the substantial amounts involved. In my view, the appropriate sentence should fall between the sentence imposed in these two cases. I agreed with the Prosecution that the sentence of 42 months’ imprisonment in Leck Kim Koon should be calibrated downwards to 30 months imprisonment per charge in the present case. I further agreed that that the charges should not be distinguished by the amount in each invoice, as either invoice being found to be fraudulent would have resulted in Royal Kashmir not being paid a single cent.

167    In my view the sentence of no more than 24 months for each charge proposed by the Defence was inadequate having regard to the aggravating offence-specific factors including the substantial amount involved in this case. Furthermore, as accused had claimed trial to these charges, he would not have been entitled to the sentencing discount given to an offender who had pleaded guilty to these charges.

Global Sentence

168    In the present case as both invoices were submitted at the same time as part of the insurance claim, I agreed with the Defence that the offences formed part of a single transaction. Accordingly, I ordered the sentences for both charges to run concurrently. Hence, the global sentence imposed is 30 months’ imprisonment.

[note: 1]Exhibits P2 and P3.

[note: 2]Exhibit P32.

[note: 3]Exhibit P1.

[note: 4]Exhibit P38.

[note: 5]Exhibit P24.

[note: 6]Exhibit D16.

[note: 7]Exhibit P28.

[note: 8]NEs, Day 5, Page 4, Lines 13 – 14.

[note: 9]Exhibits P2 and P3.

[note: 10]NEs, Day 5, Page 8, Lines 4.

[note: 11]NEs, Day 5, Page 6, Lines 12 – 13.

[note: 12]Exhibit P4.

[note: 13]NEs, Day 5, Page 5, Lines 25 – 32 and Page 6 Line 1.

[note: 14]Exhibit P4.

[note: 15]Exhibit P34.

[note: 16]NEs, Day 5, Page 12, Lines 23 – 25.

[note: 17]NEs, Day 5, Page 14, Lines 10 – 12.

[note: 18]NEs, Day 5, Page 14, Lines 25 – 27.

[note: 19]NEs, Day 5, Page 15, Lines 25 – 32 and Page 6 Lines 1 - 2.

[note: 20]NEs, Day 5, Page 23, Lines 3 – 5.

[note: 21]NEs, Day 7, Page 15, Lines 23 – 26.

[note: 22]NEs, Day 2, Page 55, Lines 28 – 32.

[note: 23]NEs, Day 2, Page 56, Lines 14 – 17.

[note: 24]NEs, Day 2, Page 57, Lines 13 – 17.

[note: 25]Exhibit P26.

[note: 26]NEs, Day 2, Page 64, Lines 32.

[note: 27]NEs, Day 2, Page 65, Lines 28 - 29.

[note: 28]NEs, Day 12, Page 15, Lines 23 – 32.

[note: 29]NEs, Day 12, Page 16, Lines 1 – 4.

[note: 30]Exhibit P41.

[note: 31]Exhibit P41, Answer 10.

[note: 32]Exhibit P41, Answer 15.

[note: 33]Exhibit P41, Answer 16.

[note: 34]Exhibit P42, Answer 6.

[note: 35]NEs, Day 13 Page 17 lines 8 – 18.

[note: 36]NEs, Day 13 Page 17 lines 27 – 32 and Page 18 lines 1 - 22.

[note: 37]NEs, Day 13 Page 18 lines 6 – 31.

[note: 38]NEs, Day 13 Page 19 lines 25 – 32 and Page 20 lines 1 - 4.

[note: 39]NEs, Day 5, Page 8, Lines 2 - 5 and Day 6, Page 12, Lines 9 - 21.

[note: 40]NEs, Day 6 Page 63 line 32 and Page 64 lines 1 – 6.

[note: 41]NEs, Day 6 Page 64 lines 8 – 9.

[note: 42]NEs, Day 26 Page 6 lines 31 – 32 and Page 7 lines 1 – 4.

[note: 43]Exhibits P2 and P3.

[note: 44]Exhibits P2A and P3A.

[note: 45]NEs, Day 5, Page 10, Lines 31 – 32 and Page 11 Line 1.

[note: 46]Exhibit P31 – 1 April 2016 email from the accused to Lee Lin Yong Mark.

[note: 47]NEs, Day 5, Page 8, Lines 9 – 13.

[note: 48]NEs, Day 5, Page 9, Lines 3 – 20.

[note: 49]NEs, Day 5, Page 10, Lines 20 – 28.

[note: 50]NEs, Day 5, Page 9, Lines 30 – 31.

[note: 51]Exhibit P1.

[note: 52]NEs, Day 6, Page 7, Lines 3 – 20.

[note: 53]Exhibit P2A and P3A.

[note: 54]NEs, Day 6 Page 7, Lines 23 – 24.

[note: 55]NEs, Day 6, Page 13, Lines 7 – 8.

[note: 56]Exhibit P24, Page 3 at paragraph 6.

[note: 57]NEs, Day 13, Page 28, Lines 9-14.

[note: 58]NEs, Day 6, Page 52, Lines 24 -32 and Page 53 Lines 1 - 6.

[note: 59]Exhibit P24.

[note: 60]NEs, Day 2, Page 40, Lines 12 – 13.

[note: 61]NEs, Day 2, Page 31, Lines 22 – 26.

[note: 62]NEs, Day 2, Page 31, Lines 26 – 32.

[note: 63]NEs, Day 2, Page 32, Lines 10 – 12.

[note: 64]NEs, Day 2, Page 32, Lines 13 – 17.

[note: 65]NEs, Day 2, Page 32, Lines 19 – 32 and Page 33 Lines 1 – 6.

[note: 66]NEs, Day 2, Page 33 Lines 8 – 12.

[note: 67]NEs, Day 2, Page 34 Lines 1 – 25.

[note: 68]NEs, Day 3, Page 6, Lines 5 – 18.

[note: 69]NEs, Day 3, Page 13, Lines 13 – 31.

[note: 70]NEs, Day 3, Page 53, Lines 6 – 10.

[note: 71]Exhibit D16 at paragraph 21.

[note: 72]Exhibit D16 at paragraph 11.

[note: 73]Exhibit D16 at paragraph 12.

[note: 74]Exhibit D16.

[note: 75]Exhibit 17.

[note: 76]Overview of Handwriting/Signature Comparison Method and Opinion Terminology – Defence Expert Bundle at page 524.

[note: 77]Exhibit D16 Page 5 at paragraph 18.

[note: 78]NEs, Day 18, Page 13, Lines 21 – 29.

[note: 79]NEs, Day 18, Page 14, Lines 11 – 26.

[note: 80]NEs, Day 18, Page 14, Line 31 to Page 15, Lines 1 – 6.

[note: 81]NEs, Day 18, Page 15, Lines 10 – 18.

[note: 82]NEs, Day 22, Page 56, Line 4 to Page 60 Line 7.

[note: 83]NEs, Day 18, Page 45, Lines 5 - 10.

[note: 84]NEs, Day 18, Page 51, Lines 1 - 24.

[note: 85]NEs, Day 22, Page 68, Lines 1 - 25.

[note: 86]NEs, Day 22, Page 66, Lines 1 - 15.

[note: 87]Exhibit P23 at Page 2 and Exhibit D16 at Page 89.

[note: 88]NEs, Day 22, Page 9, Lines 7 - 12.

[note: 89]NEs, Day 22, Page 60, Lines 4 – 13 and Exhibits D18 to D22.

[note: 90]Clause 7 of the Policy Conditions Applicable To All Sections listed at Section 9 of the Allied World insurance policy.

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Public Prosecutor v Yip Kong Fai Clement
[2024] SGDC 284

Case Number:District Arrest Case No 905473 of 2024 & 6 Others
Decision Date:29 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Benedict Teong (Attorney-General's Chambers) for the Public Prosecutor; Daryl Lim (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Yip Kong Fai Clement

Criminal Law – Offences – Property Offences – Cheating

Criminal Law – Statutory Offences – Computer Misuse Act – Unauthorised access to computer material

Criminal Law – Abetment

Criminal Procedure and Sentencing – Sentencing – Principles

29 October 2024

District Judge Paul Quan:

Introduction

1       This is a case involving scams-related offences, specifically the opening of bank accounts and relinquishing control over bank accounts, resulting in the subsequent use of such accounts to perpetrate scams. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Mr Yip Kong Fai Clement (“Mr Yip”), a 29-year-old Singaporean, came to know of someone who went by the moniker, “Michael” on Telegram. Enticed by Michael’s offer to pay S$1,000 for each bank account that Mr Yip was able to provide for him to use, Mr Yip:

(a)     relinquished control over his existing bank account with DBS Bank Limited (“DBS”) to Michael;

(b)     opened two new bank accounts with United Overseas Bank Limited (“UOB”) and Standard Chartered Bank (“SCB”), and relinquished control over these accounts to Michael on Michael’s directions; and

(c)     opened another new bank account with DBS and disclosed its internet banking credentials to Michael.

This was despite the fact that Mr Yip suspected that Michael had wanted the accounts to perpetuate scams.

3       Unrelated to the scams-related offences committed in August 2023, Mr Yip also stole cash amounting to S$60 from Pet Lovers Centre on two separate occasions in January 2024.

Charges and prescribed punishment

4       Mr Yip has pleaded guilty to a single charge of cheating UOB under section 417 of the Penal Code 1871 (2020 Rev Ed) (“PC”) into opening a bank account in his name, by dishonestly inducing UOB to believe that he was to be the sole operator of this account when he knew this to be false because he had opened the bank account on Michael’s directions solely for the purpose of relinquishing control over it subsequently to Michael for profit.

5       Mr Yip has also consented to have six other charges taken into consideration for the purpose of sentence (“TIC”):

(a)     two of abetting by aiding the offence of authorised access to computer material under section 3 of the Computer Misuse Act 1993 (2020 Rev Ed) (“CMA”) for relinquishing control over the UOB account and his existing DBS account to Michael;

(b)     two similar charges under section 417 of the PC and section 3 of the CMA in relation to cheating SCB into opening a bank account in his name and relinquishing control over it to Michael on Michael’s directions;

(c)     one similar charge under section 417 of the PC for cheating DBS into opening another bank account in his name; and

(d)     an unrelated and amalgamated charge of theft-in-dwelling under section 380 of the PC.

6       On the cheating charge that is proceeded against him, Mr Yip must be imprisoned for up to three years and/or fined.

Parties’ positions

7       Mr Yip is a first offender. The prosecution has sought to impose a global sentence of ten to 13 months’ imprisonment on Mr Yip based on:

(a)     an extrapolation from the Sentencing Advisory Panel guidelines on scams-related offences (“SAP Guidelines”),[note: 1] specifically:

(i)       a starting sentence of four months’ imprisonment,

(ii)       an upward calibration of the starting sentence to ten to 13 months’ imprisonment to account for:

(A)       Mr Yip’s motivation to commit the offence because of personal gain,

(B)       the opening of a new account,

(C)       a significant sum of S$248,000 that coursed through the account;

(b)     a significant uplift for the TIC charges of about 7¾ to nine months’ imprisonment, given that a sentence of 13½ to 19 months’ imprisonment would have been passed if the prosecution were to proceed with the charges in relation to the new SCB account and existing DBS account; and

(c)     a full 30% reduction in sentence for Mr Yip’s guilty plea.

8       On the other hand, the defence has submitted a term of seven months’ imprisonment for Mr Yip instead on the grounds that:

(a)     care, caution and circumspection should be exercised in adapting the SAP Guidelines to offences not originally covered by it; as such, the sentence for the present case not contemplated by the guidelines, should not be extrapolated from the SAP Guidelines and in any event –

(i)       the deceitful opening of a new bank account is not an offence-specific sentencing factor; and

(ii)       the individual calibrations of the uplifts for motivation by gain and opening a new account for the proceeded with charge is excessive given the illustration in [20(b)] of the SAP Guidelines;

(b)     the uplifts for the TIC charges are excessive because:

(i)       the opening of new bank account should not be construed an offence-specific aggravating factor;

(ii)       the aggravating factor of motivation by personal gain is double or triple-counted for each bank account opened and relinquished; and

(iii)       the full 30% reduction in sentence has not been taken into account; and

(c)     the facts of the present case are more aggravating than that in PP v Muhammad Ryan Rosmani [2024] SGDC 239, which warrant an uplift of three months’ imprisonment to the four-month imprisonment sentence in Ryan Rosmani –

(i)       a significant sum of $149,260 in scam proceeds transacted through Mr Yip’s account as compared to S$72,600 in Ryan Rosmani;

(ii)       four accounts were handed over, of which three were newly opened for that purpose as compared to two bank accounts being opened and handed over in Ryan Rosmani; and

(iii)       a vulnerable witness who suffered actual loss of S$99,999.21 was affected.

Court’s decision

9       I sentence Mr Yip to eight months’ two weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

10     There are three issues I have to decide in this case.

Operative sentencing principles; application of SAP Guidelines and sentencing approach; relevant offence-specific and offender-specific factors

11     They are:

(a)     the sentencing principles operating in this case;

(b)     whether the SAP Guidelines should apply in this case and if so, the extent to which its sentencing approach should be adopted; and

(c)     whether and if so the relevant offence-specific and offender-specific factors enumerated in the SAP Guidelines that should apply in this case.

12     I resolve the issues in this way:

(a)     deterrence is the operative sentencing principle in this case, given the current context of the prevalence of scams, the proliferation of money mules and our resolute aim to effectively cut off the easy supply of new and existing bank accounts;

(b)     the SAP Guidelines can apply in the present case by adopting a modified approach that entails scaling down linearly the starting sentence and recommended uplifts; and

(c)     the offence-specific factors and offender-specific factors enumerated in the SAP Guidelines apply, including the opening of new bank accounts as an offence-specific aggravating factor.

Analysis of issues

13     I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing principle

14     In a series of cases (see PP v Muhamad Noor Tijany Bin Mohamed Arridin, unreported, Magistrate Arrest Case 902261 of 2024 at [5]; PP v Tan Jun Liang, unreported, Magistrate Arrest Case 900440 of 2024 at [4]; and PP v Ilyak Ilyasa bin Sulaiman, unreported, District Arrest Case 908225 of 2024 at [5]), I echoed why general deterrence is the dominant sentencing principle for scam-related offences and that we do not lose sight of why punishment for them is necessarily severe:

(a)     first, the prevalence of scams. Over the past five years, the number of reported scam cases increased by more than seven-fold, while the amount lost to scams have quadrupled: SAP Guidelines at [5];

(b)     second, proliferation of money mules. There is a pressing need to deter like-minded offenders from equipping scam syndicates with an effective layering tactic in the form of an intricate network or web of bank accounts to perpetrate scams whose proceeds are untraceable and unrecoverable: PP v Goh Hai Shan [2024] SGDC 178 at [9]. To evade detection and maintain anonymity, scammers acquire bank accounts by offering to “buy” or “rent” them from others in return for payment or other gains. Therefore persons who cede control of their bank accounts play an important role in facilitating the receipt and laundering of crime proceeds by scammers: PP v Muhamad Farhan Bin Umar (“Farhan”) [2024] SGMC 67 at [4]. The opportunity cost of crime in the form of deterrent sentencing must be sufficiently high so that would-be offenders think twice about becoming money mules for easy money: Farhan at [35]; and

(c)     third, the resolute aim to effectively cut off the easy supply of new and existing bank accounts. Once compromised bank accounts are frozen by the authorities, scammers will need new bank accounts to receive funds from other victims. Not having a steady stream of new bank accounts to replace the frozen ones disrupts the crucial layered network built on the back of these disposable accounts though which proceeds of scams are typically laundered, thereby crippling syndicate activity: SAP Guidelines at [6]; Farhan at [35].

Issue 2: Application of SAP Guidelines

15     The SCP Guidelines recommend a sentencing approach for scams-related offences, including under sections 55A(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (2020 Rev Ed) (“CDSA”) and section 8A of the CMA.

Section 8A CMA and section 8 CMA

16     In respect of offences involving the unauthorised disclosure of Singpass credentials framed under section 8 of the CMA, the court in Farhan found the SAP Guidelines to be relevant and applicable because the criminal act involved, the mischief targeted and the prescribed punishment are the same as that for offences under the new section 8A of the CMA to which the SAP Guidelines apply: Farhan at [19]. I took the same view in Nur Alif at [22] and earlier in Cheah Bernice at [16].

Section 55A CDSA and section 3(1) CMA

17     By extension, although the SAP Guidelines are meant to apply to scams-related offences under section 55A of the CDSA, I have taken the view that the guidelines can apply equally to scams-related offences framed under section 3(1) of the CMA because both types of offences target the same mischief of handing over control of bank accounts: PP v Muhammad Nur Alif Bin Muhammed Yatim, unreported, District Arrest Case No 906976 of 2024 (“Nur Alif”) at [15(a)]. However, given the difference in the maximum punishments prescribed by both offences – two years under section 3(1)(a) of the CMA as compared to three years under section 55A(5) of the CDSA – the recommended starting sentence and uplifts ought to be scaled down linearly by one-and-a-half times when applied to scams-related offences under section 3(1) of the CMA: Nur Alif at [15(b)]. I have adopted this modified approach in Tan Jun Liang at [6] and Ilyak Ilyasa at [6].

Section 55A CDSA and section 417 of the PC

18     The prosecution has submitted that this modified approach should also apply to the present scams-related offence framed under section 417 of the PC as the substance of the offence is the same, notwithstanding that the maximum imprisonment term of three years prescribed by section 417 of the PC is higher than the two years prescribed by section 3(1)(a) of the CMA, and the same as that prescribed by section 55A(5) of the CDSA. I agree with the prosecution, considering the convergence of the gravamen of the scams-related offences under:

(a)     section 55A CDSA, which is entering into, or being otherwise concerned in, an arrangement by handing over control of bank accounts: SAP Guidelines at [8(a)];

(b)     section 417 PC, which is cheating banks into opening new accounts on the pretext of operating them for legitimate personal banking needs, when they are in fact opened for the sole purpose of handing over control of them; and

(c)     section 3 CMA, which is the unauthorised access of bank accounts after control over them have been handed over.

19     At the very least, I ought to consider the offence-specific and offender-specific factors distilled by the guidelines that will inform the harm caused and the culpability of an offender engendered by a section 417 PC offence, where an offender has deceitfully procured and thereafter relinquished a bank account that is used to launder scam proceeds: PP v Muhammad Ryan Rosmani [2024] SGDC 239 at [6].

Modified approach

20     The SAP Guidelines can apply in the present case by adopting a modified approach that entails scaling down linearly the starting sentence and recommended uplifts.

(1)   Starting sentence scaled down linearly from six months’ to four months’ imprisonment

21     In this case, the mischief underlying the cheating charge is Mr Yip deceiving UOB into opening a bank account for him when he knows at the outset that he will not be operating the account for his own legitimate personal banking needs, but handing over control of it to Michael instead on his directions, without taking reasonable steps to ascertain Michael’s purpose of accessing, operating or controlling the accounts. Indeed, Mr Yip had suspected that Michael wanted his bank accounts to perpetrate scams. On this basis and extrapolating from the guidelines, the starting sentence for a typical section 55A CDSA scams-related offence that targets the same mischief can be scaled down linearly from six to four months’ imprisonment to apply to the present scams-related offence framed under section 417 PC offences: SAP Guidelines at [11(a)].

22     In finding at [27] that the SAP Guidelines are highly relevant because the criminal acts described at [8(a)] of the guidelines are the same as those committed by the accused in relinquishing her accounts by opening and handing over three bank accounts, the court in PP v Siti Maryam Binte Mohamed Zubir [2024] SGDC 260 adopted the same starting sentence of four months’ imprisonment for the charge under section 417 of the PC proceeded with against the accused in that case.

(2)   Adjustments to the starting sentence

23     The starting sentence will be adjusted upwards for offence-specific aggravating factors such as where:

(a)     the offender opened a new bank account to be handed over as opposed to merely handing over control of an existing account: SAP Guidelines at [13(a)];

(b)     the offender handed over more than one bank account: SAP Guidelines at [13(b)];

(c)     the offender was motivated to commit the offence for personal gain, even if he did not receive the gain: SAP Guidelines at [13(d)]; and

(d)     significant funds of S$100,000 or more had been received or transferred out of the bank account: SAP Guidelines at [13(f)].

24     As for offender-specific factors, there will also be an upward adjustment for the presence and number of TIC offences: SAP Guidelines at [15(a)], and reduction in sentence for guilty pleas: SAP Guidelines at [17].

Issue 3(a): Relevant offence-specific factors

25     I consider the relevant offence-specific factors in turn.

Deceitful opening of new bank account as offence-specific aggravating factor

26     Relying on Muhammad Ryan Rosmani at [17], the defence has submitted that the deceitful opening of a new account should not be considered as an offence-specific aggravating factor because that is inherent in the cheating offence, forming the basis and ingredients of the offence, and it is also only aggravating in the context of the CDSA offences that criminalise the relinquishing of bank accounts. With respect, I hold a different view for three reasons:

(a)     first, the nature and context of this type of cheating offence is aggravating per se because it goes towards the perpetration of scams;

(b)     second, and related to the first reason, the deception involved in procuring a new bank account by an offender on the pretext of operating it for his own legitimate banking needs is all the more egregious when the sole purpose of doing so is to cede control of the account later; and

(c)     third, for the purposes of extrapolating from the SAP Guidelines, it is artificial, if not inaccurate, to divorce the opening of the bank account from handing over the bank account:

(i)       the guidelines presupposes the existence of an account to hand over; and where there is none and a new account is opened, an uplift is recommended: SAP Guidelines at [13(a)],

(ii)       the archetypal case is where an offender hands over control of an existing bank account to another person and is contrasted with a scenario where the offender opened a new bank account for the purpose of handing over the account to the other person: SAP Guidelines at [10(a)], and

(iii)       if an uplift were not applied in the present case, its factual matrix would not be comparable to that envisaged under the SAP Guidelines for any meaningful extrapolation to be made.

27     Likewise, the court in Siti Maryam also considered at [38] and [39] the opening of a new bank account to be handed over as an offence-specific aggravating factor and applied an uplift for this factor.

Upward adjustment of two months’ imprisonment for opening of new bank account and motivation by personal gain

28     Despite suspecting that Michael had wanted to use his accounts to perpetuate scams, Mr Yip nevertheless provided Michael (and others working with him) with the bank accounts for personal gain in exchange for the promise of S$1,000 for each bank account that Mr Yip could provide for Michael to use. This is coupled with the fact that Mr Yip had opened a new UOB bank account under Michael’s directions solely for the purpose of handing it over to Michael. Illustration [20(b)] of the SAP Guidelines recommends an upward adjustment of three months’ imprisonment for these two factors. I apply an upward adjustment of two months’ imprisonment, which I extrapolate and scale down linearly from the three months’ imprisonment, to the starting sentence, for these two factors.

Upward adjustment of three months’ imprisonment for significant funds received

29     An uplift of at least 25% of the starting sentence should be considered where significant funds of S$100,000 or more had been received or transferred out of the offender’s bank account: SAP Guidelines at [13(f)]. In this case:

(a)     the proceeded with charge involves a sizeable sum of S$248,600 received, of which S$149,260 were scam proceeds linked to two victims, and

(b)     the TIC charges involve about another S$150,000, of which S$129,830.01 were scam proceeds linked to three victims.

In assessing this factor, the court may consider the full amount received or transferred out of the bank’s account, and not just the amounts traceable to reports about scams: SAP Guidelines at footnote 8. As Mr Yip did not use the bank accounts himself after opening and handing them over to Michael and that he has no claim to the balance sums remaining in the accounts after the accounts were frozen during police investigations, Mr Yip will not be able to satisfy the court that any of the receipts or transfers were made for innocent reasons: SAP Guidelines at footnote 8.

30     The funds received in respect of the proceeded with charge were more than double the threshold of S$100,000 contemplated by the SAP Guidelines, and almost quadruple if the sums received in respect of the TIC charges are included. I therefore apply an uplift of 75% of the starting sentence, or three months’ imprisonment, to the starting sentence for this factor. In so doing, I adopt the court’s approach in Siti Maryam at [52] in applying an uplift for significant funds flowing through all five bank accounts in that case.

Upward adjustment of two months’ imprisonment for handing over three other bank accounts

31     The number of bank accounts handed over should be considered in determining the extent of the sentencing uplift: SAP Guidelines at [13(b)]. The defence does not dispute this as an aggravating fact: see [8(c)(ii)], above. Strictly speaking in this case, apart from the UOB account in respect of the proceeded with charge that was handed over, three other accounts, one from SCB and two from DBS (one existing and one new), were handed over. As the new DBS account was not used, I adopt the court’s approach in Siti Maryam at [44] and apply an upward adjustment of only two months’ imprisonment to the starting sentence for this factor.

Upward adjustment of one month’s imprisonment because of involvement of vulnerable victim

32     If vulnerable persons of above the age of 65 are affected by the scams even if such persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected, an uplift of at least 25% of the starting sentence is recommended: SAP Guidelines at [14]. In this case, the TIC charges relating to the SCB account affected a 74-year-old vulnerable victim to the tune of S$99,981.01. The defence also does not dispute this as an aggravating fact: see [8(c)(iii)], above. For this factor, I apply an upward adjustment of one month’s imprisonment to the starting sentence. I do not see why an adjustment cannot be done even though the vulnerable victim’s involvement is with the SCB account that pertains to the TIC charges.

Issue 3(b): Offender-specific factors

33     There are no offender-specific personal aggravating factors to warrant a further upward adjustment to the starting sentence. As for offender-specific personal mitigating factors, Mr Yip is not regarded as a first offender even though he has no prior convictions and his guilty plea carries mitigatory weight.

TIC charges

34     As all scams-related TIC charges have been factored into the overall aggravating nature of the cheating offence, their aggravating presence is not double-counted as offender-specific factors. This was also the approach adopted by the court in Siti Maryam at [58].

35     As for the TIC charge of theft-in-dwelling, a slight upward adjustment of one week’s imprisonment is warranted, given:

(a)     its similar property-related nature. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38];

(b)     its commission was after the slew of scams-related offences had already been committed; and

(c)     two separate incidents were amalgamated as a course of conduct in a single charge. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

36     I respectfully decline to follow the prosecution’s approach of applying an uplift for the TIC charges: see [7(b)], above. A similar approach was suggested in Siti Maryam at [45] and I align my views with the court at [46] on the danger and implications of doing so. The defence has also argued against this approach in a similar vein: see [8(b)(ii)], above.

Absence of criminal antecedents

37     Although Mr Yip has no prior convictions, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Full 30% reduction in sentence for guilty plea

38     Mr Yip’s indication of early guilty plea carries mitigatory weight and I accord him the full 30% reduction in sentence.

Sentences for remaining charges had they not been TIC

39     For completeness, I set out, by way of comparison, the total upward adjustment attributable to the aggravating facts of the TIC charges (and the TIC charge of theft-in-dwelling itself) against the individual sentences had any of the TIC charges been proceeded with.

40     Had any of the TIC charges been proceeded with, the indicative sentences imposed on them would have been between about five months’ one to two weeks’ imprisonment to seven months’ imprisonment:

(a)     Seven months’ imprisonment for opening and handing over the SCB account, comprising:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account,

(iv)       an upward adjustment of one month’s imprisonment for significant funds of nearly S$100,000 received,

(v)       an upward adjustment of one month’s imprisonment for the involvement of a vulnerable victim, and

(vi)       a full 30% reduction of sentence for guilty plea;

(b)     Five months’ two weeks’ imprisonment for handing over a new DBS account comprising:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account, and

(iv)       a full 30% reduction of sentence for guilty plea; and

(c)     Five months’ one week’s imprisonment for relinquishing an existing DBS account:

(i)       four months’ imprisonment as the starting sentence,

(ii)       an upward adjustment of one month’s imprisonment for motivation by personal gain,

(iii)       an upward adjustment of two months’ imprisonment for handing over more than one bank account,

(iv)       an upward adjustment of two weeks’ imprisonment for funds of S$50,000 received, and

(v)       a full 30% reduction of sentence for guilty plea.

41     In this case, the total upward adjustment that is attributable to the TIC charges is about four months’ one week’s imprisonment, comprising:

(a)     about one month’s imprisonment for the funds received in the SCB and DBS accounts;

(b)     two months’ for handing over three other bank accounts;

(c)     one month’s imprisonment for the involvement of a vulnerable victim linked to the SCB account; and

(d)     one week’s imprisonment for the theft-in-dwelling.

Conclusion

Sentence of eight months’ two weeks’ imprisonment imposed

42     To summarise, I impose a sentence of eight months’ two weeks’ imprisonment on Mr Yip comprising:

(a)     four months’ imprisonment as the starting sentence;

(b)     an upward adjustment of two months’ imprisonment for the opening of a new bank account and motivation by personal gain;

(c)     an upward adjustment of three month’s imprisonment for significant funds of nearly S$400,000 received in respect of all the charges;

(d)     an upward adjustment of two months’ imprisonment for handing over three other bank accounts;

(e)     an upward adjustment of one month’s imprisonment for the involvement of a vulnerable victim in respect of the TIC charges relating to the SCB account;

(f)     an upward adjustment of one week’s imprisonment for the TIC charge of theft-in-dwelling; and

(g)     a full 30% reduction of sentence for guilty plea.

[note: 1]Sentencing Advisory Panel, “Guidelines for Scams-Related Offences” <https://www.sentencingpanel.gov.sg/files/Guidelines/Guidelines_For_Scams_Related_Offences.pdf> (21 August 2024).

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Public Prosecutor v Loh Sheung Jin Julian
[2024] SGMC 74

Case Number:Magistrate Arrest Case No 901279 of 2023 & 12 Others
Decision Date:25 October 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Teo Pei Rong Grace (Attorney-General's Chambers) for the Public Prosecutor; Azri Imran Tan (I R B Law LLP) for the Accused.
Parties: Public Prosecutor — Loh Sheung Jin Julian

Criminal Law – Offences – Hurt – Voluntarily causing hurt

Criminal Law – Offences – Public decency and morals – Obscene act in public

Criminal Law – Offences – Sexual offences – Outrage of modesty

Criminal Law – Attempt

Criminal Law – Offences – Criminal force and assault – Use of criminal force

Criminal Law – Offences – Public tranquillity – Public nuisance

Criminal Law – Offences – Sexual offences – Gesture intended to insult modesty

Criminal Law – Statutory Offences – COVID-19 (Temporary Measures) Act 2020 – Contravention of control order

Criminal Procedure and Sentencing – Sentencing – Mentally disordered offenders

Criminal Procedure and Sentencing – Sentencing – Principles

25 October 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       This is a case of a mentally disordered offender who has committed a slew of offences. While there is a contributory link between his mental conditions and the commission of the offences that are of a sexual nature, there is no such link in relation to the commission of the other offences. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Loh Sheung Jin Julian (“Mr Loh”), a 58-year-old Singaporean, who suffers from mild intellectual disability and “Other Specified Personality Disorder” as defined by the fifth edition of the Diagnostic and Statistics Manual of Mental Disorders (“DSM-5”), committed a slew of 13 offences over the course of nearly five years between 2019 and 2024 with:

(a)     the majority of the offences being sexual in nature. There are eight such offences involving five counts of outrage of modesty (“OM”), two counts of public obscenity and one count of insult of modesty, and

(b)     the remaining five offences being non-sexual in nature, involving two counts of voluntarily causing hurt (“VCH”), one count of using criminal force, one count of pubic nuisance and another count of contravening a COVID-19 control order.

Charges and prescribed punishments

3       Mr Loh, who is certified to be not of unsound mind and fit to plead, has pleaded guilty to seven charges:

(a)     three of OM (including one attempted OM) under section 354(1) of the Penal Code 1871 (2020 Rev Ed) (“PC 1871”) against –

(i)       a 16-year-old victim (“V1”) by pinching his left chest area over his shirt on a bus,

(ii)       a 16-year-old victim (“V2”) by attempting to touch his penis over his clothes at a bus stop, and

(iii)       a 15-year-old victim (“V3”) by touching his penis over his pants along a pavement;

(b)     two of doing an obscene act in public (“public obscenity”) under section 294(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC 2008”) by ‘flashing’ himself at a 17-year-old victim (“V4”) on the bus, and under section 294(a) of the PC 1871 by masturbating in public caught in plain slight by a 49-year-old victim (“V5”); and

(c)     two of VCH under section 323 of the PC 2008 against a foreign domestic worker (“V6”) while at home and against a fellow commuter (V7”) on the bus.

4       He has also consented to have the remaining six charges taken into consideration for the purpose of sentence (“TIC”):

(a)     two of OM under section 354(1) of the PC 2008 against –

(i)       V1 by touching his buttocks over his clothes as he alighted from the bus, and

(ii)       another victim by touching his genitals over his pants;

(b)     one of making a gesture intended to insult under section 377BA of PC 1871;

(c)     one of using criminal force under section 352 of the PC 2008 against V6;

(d)     one of being a public nuisance under section 268 of the PC 2008 by shouting repeatedly on a bus;

(e)     one of contravening a COVID control order under section 34(7) of the COVID-19 (Temporary Measures) Act 2020 (Act No 14 of 2020) by failing to wear a mask when not in his ordinary place of residence.

5       The charges/offences relating to the commission of OM and public obscenity at [3(a)], [3(b)], [4(a)] and [4(b)], above, will be referred to as sexual charges/offences in this judgment.

6       The prescribed punishment for OM (and attempted OM) under section 354 of the PC 1871 is imprisonment for up to three years, a fine, caning or any combination of such punishments. Although Mr Loh is not eligible to be caned, an imprisonment term not exceeding 12 months in lieu of the caning can be imposed on him as additional punishment: section 325(2) of the Criminal Procedure Code 2010 (2020 Rev Ed). For public obscenity, Mr Loh must be imprisoned for up to three months, and/or fined under section 294(a) of the PC 1871/ PC 2008. For VCH, Mr Loh must be imprisoned for up to three years and/or fined for up to S$5,000 under section 323 of the PC 2008.

Parties’ positions

7       Mr Loh is a first offender. The parties agree that the custodial threshold has been crossed in this case. The parties’ positions are not far apart. The prosecution has sought to impose a global sentence of between seven months’ eight to nine weeks’ imprisonment to ten months’ eight to nine weeks’ imprisonment; whereas the defence has submitted for a term of not more than six months’ and 12 weeks’ imprisonment. The difference is attributed to the weight to be accorded to Mr Loh’s mental conditions, which the defence has submitted are mitigating to the extent that they diminish his culpability in the offences, as well as affect his ability to manage his impulses and impair his capacity for self-control and restraint.

8       There is common ground between the parties:

(a)     that Mr Loh suffers from mild intellectual disability and “Other Specified Personality Disorder with mixed personality features as defined by DSM-5;

(b)     that there is a contributory link between these mental conditions and the commission of the sexual offences, but no such causal or contributory link in respect of the commission of the other offences;

(c)     that deterrence is the primary sentencing consideration, given that Mr Loh is aware of his mental conditions, he has committed multiple offences spanning across more than four years (with the prosecution making the additional point that numerous teenage victims were involved) and poses recidivism risks (with the prosecution making the additional point that he poses a consequent threat to the public, particularly males from post-puberal adolescents to adults, because of his moderate to high risk of reoffending), as well as the inefficacy of the treatment of his mental conditions thus far;

(d)     generally in the sentences to be imposed on the seven charges that Mr Loh has pleaded guilty to:

Charge

Prosecution

Defence

MAC 901279 of 2023

OM against V1

At least 5-6 weeks’ imprisonment

(consecutive)

5 weeks’ imprisonment

(consecutive)

MAC 906537 of 2023

Attempted OM against V2

At least 2½ months’ imprisonment

2½ months’ imprisonment

MAC 906539 of 2023

OM against V3

6-9 months’ imprisonment

(consecutive)

5-6 months’ imprisonment

(consecutive)

MAC 906529 of 2023

‘Flashing’ at V4

At least 1 month’s imprisonment

(consecutive)

2-4 weeks’ imprisonment

(consecutive)

MAC 904357 of 2024

Masturbating in public in plain sight of V5

At least 2 weeks’ imprisonment

1 week’s imprisonment

MAC 906532 of 2023

VCH against V6

At least 3 weeks’ imprisonment

(consecutive)

3 weeks’ imprisonment

(consecutive)

MAC 906535 of 2023

VCH against V7

At least 1 week’s imprisonment

1 weeks’ imprisonment



with the sentences on the four charges in respect of V1, V3, V4, and V6 to run consecutively.

Court’s decision

9       I have reserved my judgment on sentence after convicting Mr Loh on 21 October 2024. I now sentence Mr Loh to eight months’ eight weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

10     There are three issues I have to decide in this case.

Sentencing approach and operative sentencing principles; mental conditions as personal mitigating factor; individual sentences to be imposed and how they should run

11     They are:

(a)     first, the approach to sentencing mentally disordered offenders and the sentencing principle(s) operating in this case;

(b)     second, how Mr Loh’s mental conditions sit as a personal mitigating factor with the operative sentencing principle(s); and

(c)     third, whether I agree with the common ground between the parties in respect of the individual sentences that they have advanced for the charges that Mr Loh has pleaded guilty to and how they ought to run.

12     I resolve the issues in this way:

(a)     The approach in PP v Soo Cheow Wee [2024] 3 SLR 972 at [51] for sentencing offenders with multiple mental conditions is instructive in this case, which focuses on the:

(i)       existence, nature and severity of the conditions;

(ii)       interaction between the conditions;

(iii)       causal link between the conditions and the commission of the offence(s);

(iv)       the extent of the offender’s insight into his conditions and their effects; and

(v)       determination of the operative sentencing principle(s) by balancing the interests of the public and the offender.

(b)     Deterrence and prevention should take greater weight over rehabilitation and retribution in this case. Notwithstanding that Mr Loh suffers from mental conditions that cause the commission of the sexual offences:

(i)       the consideration of prevention by way of incapacitation is the main focus in the sentencing process because he poses a threat to the public and is guilty of more serious offences, given their sexual nature, the victim profiles, the multiplicity in his offences, as well as the moderate and high risk of reoffending;

(ii)       an emphasis on specific deterrence will also provide the discouragement necessary to engender adherence to regular treatment, comprising medication, follow-ups, as well as meaningful community interaction and engagement with counselling, job coaching and placement advice;

(iii)       given that Mr Loh can no longer avail himself of his deceased father’s exceptional familial support and commitment, the likely efficacy of his rehabilitation is reduced and therefore the sentencing consideration of rehabilitation cannot be given greater weight; and

(iv)       likewise, the tampering effect of retributive justice (with Mr Loh’s actions appearing to be as a result of a disordered mind, making him less culpable for the sexual offences that he had committed which cause not an insignificant harm) has to recede into the background with prevention and deterrence coming into the fore.

(c)     As for the remaining offences, specific deterrence and retribution will apply. Mr Loh is culpable for the harm that he had caused to his victims and since his mental conditions had not caused the commission of these offences, he can be specifically and suitably deterred from negative “acute situational reactions” and “responses to external situational triggers that cause him to be unhappy with other people for various reasons”.

(d)     I broadly agree with the individual sentences that the parties have advanced and my decision takes reference from the common ground between the parties in respect of those sentences and how they ought to run.

Analysis of issues

13     I analyse the issues in turn.

Issue 1(a): Sentencing approach

14     I consider the specific facts that was enumerated in Soo Cheow Wee at [51] in determining the impact Mr Loh’s mental conditions would have on sentencing.

Existence, nature and severity of Mr Loh’s mental conditions

15     It is common ground between the parties that Mr Loh suffers from mild intellectual disability and “Other Specified Personality Disorder with mixed personality features”. Gleaned from reports put up by the Institute of Mental Health (“IMH”), the nature and severity of such mental conditions are such that:

(a)     he “has a pattern of behaving outside social norms, even for that expected of an individual with mild [intellectual disability]”;

(b)     he “has difficulties with interpersonal functioning, abiding to social norms and lawful behaviour, and appreciation of the impact of his actions on his victims [that] cannot be solely ascribed to his [intellectual disability]”; and

(c)     his pattern of personality traits do not fit a single cluster or pattern, hence the diagnosis of “Other Specified Personality Disorder”. Mr Loh’s previous treating psychiatrists had depicted him as “naïve, gullible, and emotionally immature”, “odd, eccentric, pseudointellectual, pseudophilosophical, immature and dull”, with “poor self-image, lack of confidence, poor social skills, very limited capabilities and an unclear sexual identity role”. He was also recorded previously not to exhibit a sense of shame or guilt and had little thoughts of consequence.

Interactions between Mr Loh’s different mental conditions and causal link between mental conditions and commission of offences

16     In relation to the sexual offences, the parties have accepted the psychiatric evidence that Mr Loh’s mental conditions “would collectively affect his ability to manage his impulses, which stem from innate, biological urges. His capacity to exercise self-control and restraint with regards to his actions in the alleged offences are impaired”. This was the basis on which the prosecution’s psychiatrist found that there was a contributory link between Mr Loh’s mental conditions and the commission of the sexual offences.

17     In relation to the remaining offences, the parties have also accepted the psychiatric evidence that Mr Loh’s offending behaviour in this regard are “acute situational reactions, which are not a mental illness. They are his responses to external situational triggers that cause him to be unhappy with other people for various reasons”. As such, the prosecution psychiatrist found that there was no causal or contributory link between Mr Loh’s mental conditions and the commission of these other offences.

Extent to which Mr Loh had insight into his mental conditions and effects

18     Mr Loh has shown some appreciation of what could trigger him to offend. For instance, the facts that he had admitted to revealed that he knew chilli made him aroused and yet, he ate spicy food that led him to masturbate in public the day after.

19     He has also exhibited some appreciation of what could keep his offending behaviour in check:

(a)     the first is medication. Mr Loh is aware that he has been prescribed medication to “curb sexual urges” and had oscillated between indicating that the medication was “highly effective in limiting his ability to attain an erection” and that the medication being “not strong enough”;

(b)     the second is counselling advice from his social worker. He was “100% confident [the advice from his MINDS social worker to stop and think twice before acting] would completely keep him out of trouble with the law”. But he went on to commit the offence of public obscenity by masturbating in public because he thought “maybe I didn’t heed her advice”. He was prepared to “think thrice” in future; and

(c)     the third is meaningful engagement in the community through gainful employment. He has not been able to hold on to a job and yet refused to continue with IMH’s Octave Occupation Therapy Sessions after attending a few sessions from September to November 2022.

Issue 1(b): Operative sentencing principles

20     Notwithstanding that Mr Loh suffers from mental conditions that causes the commission of the sexual offences, the consideration of prevention by way of incapacitation is the main focus in the sentencing process because he:

(a)     poses a threat to the public, particularly males from post-puberal adolescents to adults, because of his moderate to high risk of reoffending; and

(b)     is guilty of more serious offences, given their sexual nature, the victim profiles and the multiplicity in his offences.

21     Treatment has not been efficacious thus far. Specific deterrence will provide the discouragement necessary to engender adherence to future treatments, including the following aspects:

(a)     medication, as the prosecution’s psychiatrist opined that current medication would require further titration to reach the required dosage, while its effectiveness is also contingent on his adherence to treatment;

(b)     continuing with his regular follow-ups at IMH.

(c)     attending job coaching and placement programmes to show a real effort to work towards the plans he had expressed to get a job upon his release from incarceration; and

(d)     following his social worker’s counselling advice, or thinking thrice before acting in future, in Mr Loh’s words.

22     Given that Mr Loh can no longer avail himself of his deceased father’s exceptional familial support and commitment, the likely efficacy of his rehabilitation is reduced and therefore the sentencing consideration of rehabilitation cannot be given greater weight. Retributive concerns of pegging Mr Loh’s punishment to a lower culpability for actions that caused harm but were a result of his disordered mind also have to cede to the primary considerations of prevention and deterrence coming to the fore.

23     In respect of the remaining offences, specific deterrence and retribution will apply. He has to account for the harm that he had caused to his victims. His culpability in this regard is not diminished since his mental conditions did not cause the commission of these offences. Therefore, he can also be specifically deterred from such acts of negative “acute situational reactions” and “responses to external situational triggers that cause him to be unhappy with other people for various reasons”. Although he has been assessed to “have a propensity to lose his temper and get frustrated more easily than the average person”, the psychiatric evidence is that it is “within his volition to decide on his reaction (or non-reaction)”.

Issue 2: Mental conditions as personal mitigating factor

24     Against the backdrop of deterrence and prevention, the defence has submitted Mr Loh’s mental conditions can still sit as a personal aggravating factor that diminishes his culpability. As I understand it, there are two aspects to this submission:

(a)     first, “[a]bove and beyond there being a contributory link between his conditions and his offending, [Mr Loh’s] conditions affected his ability to control his impulses and his ability to exercise self-restraint making him act on impulse – as opposed to purely volitionally”; and

second, “[a]bove and beyond the same, the nature of Mr Loh’s intellectual disability and ‘superficial’ understanding of the wrongfulness of his actions (notwithstanding he knew what he did was wrong) further mitigate his culpability”.

25     I make two preliminary points in this regard:

(a)     first, the impairment on Mr Loh’s self-control and restraint caused by his mental conditions affecting his ability to manage his impulses is the reason for saying there is a contributory link between his mental conditions and the commission of the sexual offences. The two should not be divorced from each other and considered separately; and

(b)     secondly, Mr Loh’s mental responsibility was impaired by a combination of his psychiatric conditions. The interaction between Mr Loh’s intellectual disability and his personality order and their collective effect ought to be considered, rather than considering the individual effect of each mental condition per se.

26     I accept the defence’s point that the moral culpability of mentally disordered offenders lies on a spectrum: PP v Kong Peng Yee [2018] 2 SLR 295 at [65]. While it is clear that Mr Loh does not fall under one extreme end of that spectrum comprising offenders who have temporary and situational mental disorders who retain their understanding of their actions and can reason and weigh the consequences: Kong Peng Yee at [65], the psychiatric evidence:

(a)     neither lends itself to the defence’s suggestion that Mr Loh falls under the other extreme end of the spectrum comprising offenders whose mental disorders impair severely their ability to understand the nature and consequences of their acts, to make reasoned decisions, or to control their impulses: Kong Peng Yee at [66],

(b)     nor advance the defence case that Mr Loh’s mental responsibility was significantly or substantially impaired and compromised by his psychiatric disorders like the accused in Roszaidi bin Osman v PP [2023] 1 SLR 222 at [179] and [183].

The IMH reports and indeed the defence’s own psychiatrist did not speak of or speak to severe, significant or substantial impairment brought about by Mr Loh’s mental conditions. Indeed, parties accepted the psychiatric evidence that Mr Loh had a “superficial albeit good-enough understanding” of what is wrong. Coupled with a moderate to high risk of reoffending and to encourage adherence to treatment, deterrence and prevention come to the fore in the sentencing process and will eclipse retributive considerations that demands sentencing be proportionate to the reduced level of culpability as a result of Mr Loh’s disordered mind. The flipside is that as there is no evidence to suggest that Mr Loh is severely mentally ill, the period of incapacitation need not be for a substantial period of time.

Issue 3(a): Sentencing approach for sexual offences

27     There are two main sets of charges relating to sexual offences – OM and public obscenity.

OM charges

28     The sentencing framework for OM offences is laid down in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”) at [45], [48]-[49] as adapted by PP v Wong Teck Guan [2023] SGMC 64 at [53].

29     The parties’ respective positions on sentence on the three OM charges are tabulated:

Charge

Prosecution

Defence

MAC 901279 of 2023

OM against V1

At least 5-6 weeks’ imprisonment

5 weeks’ imprisonment

MAC 906537 of 2023

Attempted OM against V2

At least 2½ months’ imprisonment

2½ months’ imprisonment

MAC 906539 of 2023

OM against V3

6-9 months’ imprisonment

5-6 months’ imprisonment



(1)   OM against V1 on 13 February 2023

30     This is Mr Loh’s most current OM transgression committed against the 16-year-old V1 on a bus, having already committed two previous OM offences, including an attempted OM.

(A)   Offence-specific factors

31     The Kunasekaran framework essentially involves three steps. First, the court should ascertain the gravity of the offence by considering three offence-specific factors:

(a)     Degree of sexual exploitation. Mr Loh pinched the victim’s left chest area lightly over his shirt;

(b)     Circumstances of the offence. V1 was 16 years old at the time of the offence. The offence took place on a bus. Mr Loh had deliberately moved to sit with V1, when V1 placed his bag on the seat next to him. V1 acquiesced when Mr Loh asked if V1 could remove his bag so that Mr Loh could sit beside him. After he asked V1 whether he had any gay friends, Mr Loh made his move and touched V1 for his own sexual gratification.

(c)     Harm caused to the victim. In response to the OM, V1 stood up and swore at Mr Loh. He was sufficiently aggrieved to inform the bus driver of the incident, who then alerted the police.

(B)   Situating case within sentencing bands

32     The next step is to situate this case within the sentencing bands of the Kunasekaran framework at [49]. Offences committed on the public transport network warrant a custodial sentence: PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 at [88]-[89]; Kunasekaran at [58]. This case resides in Band 1 attracting an imprisonment term of less than 7½ months. This band typically involves cases that involve a fleeting touch or no skin-to-skin contact and no intrusion into the victim’s private parts. This case also has these features, but the fact that:

(a)     a young and therefore vulnerable victim was involved;

(b)     the offence also took place on a public transport vehicle; and

(c)     the deliberate yet unsuspecting manner of Mr Loh’s approach that led to the offence and caught V1 unawares;

changes its complexion. I therefore assess the starting point sentence to be five weeks’ imprisonment.

(C)   Offender-specific factors

33     The final step is to take into account the offender-specific personal aggravating and mitigating factors. In this regard, the fact that this is Mr Loh’s third OM transgression and having just committed his last OM against V3 barely a month ago is aggravating and taken against him. I therefore apply an upward adjustment of two-and-a-half weeks’ imprisonment to the starting sentence.

34     Although retributive justice demands proportionality in sentencing according to the moral culpability of the offender and it is acknowledged that Mr Loh is on the spectrum given his mental conditions, retributive concerns ultimately has to cede to the primary considerations of deterrence and prevention: see [26], above.

35     Mr Loh’s plea of guilt carries mitigatory weight and only because in doing so, he has sparred V1 of having to testify against him in a trial. I therefore accord him the full 30% reduction in sentence.

36     The final sentence to be imposed on this OM charge is five weeks’ imprisonment.

(2)   OM against V2 on 29 June 2022

37     Of the three OM offences, this was the first in time. I apply the same analysis to this offence committed against the 16-year-old V2 at a bus stop based on the Kunasekaran framework.

(A)   Offence-specific factors

38     The nature of the sexual exploitation was an attempt by Mr Loh to touch V2’s penis over his clothes.

39     As for the circumstances of the offence, V2 was 16 years old at the time of the offence. The offence occurred at a bus stop. Mr Loh was seated at a different bench from V2 at the bus stop. Mr Loh then deliberately moved to sit with V2, extended his hand to V2 for a handshake before trying to touch V2. It was fortuitous that V2 managed to hit Mr Loh’s hand away before any contact could be made. But even then, Mr Loh persisted in his offending conduct and made a sucking gesture with his fist.

40     In response to the attempted OM, V2 stood up and walked away. Although there was no harm caused to V2 in the form of actual physical contact with his private parts, V2 felt alarmed by the incident. He was sufficiently aggrieved to lodge a police report the following day about the OM incident.

(B)   Situating case within sentencing bands

41     This case also resides in Band 1 attracting an imprisonment term of less than 7½ months. Although there was no contact with and therefore no intrusion into V2’s private parts at all, for which Mr Loh cannot be given any credit that ought to be attributed to V2’s vigilance instead, the deliberate though unsuspecting manner of Mr Loh’s approach guised as a civil handshake, and the persistence in offending by way of his lewd gesture after the OM did not succeed, coupled with the fact that a young and therefore vulnerable victim was involved, brings this case closer to the middle of Band 1.

42     I assess the starting point sentence to be 2¾ months’ imprisonment.

(C)   Offender-specific factors

43     As for offender-specific personal aggravating and mitigating factors, the presence of a similar TIC charge for insulting the modesty of another victim by gesturing an oral sex action is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. I therefore apply an upward adjustment of one month’s imprisonment to the starting sentence.

44     As with the previous OM offence, the primary considerations of deterrence and prevention cast a long shadow over the mitigatory effect of Mr Loh’s mental conditions: see [26], above. I also similarly accord Mr Loh the full 30% reduction in sentence for his guilty plea and only because he had spared V2 of having to testify against him in a trial.

45     The final sentence to be imposed on this OM charge is therefore two months’ and two weeks’ imprisonment.

(3)   OM against V3 on 13 February 2023

46     This is the most egregious of the trio of OM offences against the 15-year-old V3, who was walking along a pavement, and the second in time. I apply the same analysis to this offence based on the Kunasekaran framework.

(A)   Offence-specific factors

47     The nature of the sexual exploitation is in the form of touching V3’s penis over his pants.

48     As for the circumstances of the offence, V3 was 15 years old and walking along a pavement at the time of the offence. Mr Loh approached V3, said hi to V3 and extended his hand to V3 for a handshake. After V3 shook his hand, Mr Loh made his move and touched him. V3 stepped back but Mr Loh persisted in his offending behaviour by making a masturbation gesture and pointing to a nearby block.

49     The harm caused to V3 is apparent. He ran away and was sufficiently aggrieved to lodge a police report the very same day about the OM incident.

(B)   Situating case within sentencing bands

50     This case resides in Band 2 attracting an imprisonment term of less than 7½ to 22½ months. Cases where there was an absence of skin-on-skin contact with the private parts of the victim reside at the lower end of the band. In this case, although the touching was also over V3’s pants, the different complexion is the deliberate yet unsuspecting manner of Mr Loh’s approach, which was the same modus operandi that he had deployed for the previous offence against V2, except that he succeeded on this particular occasion with V3, and the persistence in offending thereafter, coupled with the fact that a young and therefore vulnerable victim was involved.

51     I assess the starting point sentence to be nine months’ imprisonment.

(C)   Offender-specific factors

52     As for offender-specific personal aggravating and mitigating factors, the presence of a similar TIC charge for touching the genitals of another victim over his pants in 2021 is aggravating. I therefore apply an upward adjustment of one month’s imprisonment to the starting sentence.

53     Like the first two offences, prevention and deterrence considerations trump the mitigatory effect of Mr Loh’s mental conditions: see [26], above. I also similarly accord Mr Loh the full 30% reduction in sentence for his guilty plea for sparing V3 of having to testify against him in a trial.

54     The final sentence to be imposed on this OM charge is therefore seven months’ imprisonment.

Public obscenity charges

55     The parties’ respective positions on sentence on the two public obscenity charges are tabulated:

Charge

Prosecution

Defence

MAC 906529 of 2023

‘Flashing’ at V4

At least 1 month’s imprisonment

2-4 weeks’ imprisonment

MAC 904357 of 2024

Masturbating in public

At least 2 weeks’ imprisonment

1 week’s imprisonment



(1)   ‘Flashing’ at V4 on 31 January 2019

56     I agree with the parties that the custodial threshold is crossed for this aggravated ‘flashing’ offence because it is:

(a)     committed against a young and therefore vulnerable victim, 17-year-old V4,

(b)     on a public transport vehicle,

(c)     causing V4 to feel angry and harassed to the extent that he told his father who called the police that same night.

57     Mr Loh also showed persistence in offending by virtue of a similar TIC charge involving the same V4, whom Mr Loh touched again before V4 alighted the bus on his buttocks over his clothes.

58     A one-month imprisonment term as proposed by the parties is therefore justified.

(2)   Masturbating in public on 12 June 2024

59     This is Mr Loh’s most recent transgression among the sexual offences. It is aggravated because:

(a)     Mr Loh’s offending behaviour escalated from previously ‘flashing’ himself to V4 on the bus in 2019 to now masturbating himself at a void deck this year, after already having committed a slew of seven previous sexual offences;

(b)     Mr Loh knew that chilli makes him aroused and yet went ahead to eat spicy food the day before; and

(c)     he committed this offence while on court bail.

60     A two-week imprisonment term as proposed by the prosecution is justified.

Issue 3(b): Sentencing approach for VCH offences

61     The sentencing framework for VCH offences is laid down in:

(a)      Low Song Chye v PP [2019] 5 SLR 526 at [77]-[78] for offences committed before 1 January 2020; and

(b)      Niranjan s/o Muthupalani v PP [2024] 3 SLR 834 (“Niranjan”) at [63] for offences committed after 1 January 2020.

62     The parties’ respective positions on sentence on the VCH charges are tabulated:

Charge

Prosecution

Defence

MAC 906532 of 2023

VCH against V6

At least 3 weeks’ imprisonment

3 weeks’ imprisonment

MAC 906535 of 2023

VCH against V7

At least 1 week’s imprisonment

1 weeks’ imprisonment



VCH against V6 on 16 June 2019

63     The first VCH offence that Mr Loh had committed was against V6 who was a foreign domestic worker in his mother’s employ in their home. He slapped V6 once on the right side of her head and punched the right side of her head. As a result, V6 suffered a face contusion.

(1)   Situating case within sentencing bands

64     There are two steps to the Low Song Chye framework. The first step is to identify the sentencing band and where this case falls within the applicable indicative sentencing range by considering the hurt caused by the offence.

65     Given that V6 only suffered a face contusion, this offence fell within Band 1 of the framework attracting a fine or a custodial term of up to four weeks’ imprisonment for first-time offenders pleading guilty. The custodial threshold is crossed because the offence was committed against a foreign domestic worker, who is regarded as belonging to a special class of vulnerable victims. I assess the starting point sentence to be two weeks’ imprisonment.

(2)   Adjustments to be made to starting point sentence

66     The next step is to make the necessary adjustments to the starting point sentence based on an assessment of Mr Loh’s culpability as well as the aggravating and mitigating factors. Mr Loh’s assault on V6 resulted from a poor acute situational reaction that was triggered by his irritation of the sound from V6 boiling water in the kitchen. He is therefore wholly culpable for the hurt he had caused V6. Coupled with the aggravating presence of a similar TIC charge involving the same V6 for splashing water at her face and body, I apply a one-week adjustment to the starting sentence.

67     The final sentence to be imposed on this VCH charge is therefore three weeks’ imprisonment.

VCH against V7 on 25 February 2021

68     I apply the same analysis to this second VCH offence that Mr Loh had committed against V7, who was a fellow bus commuter, based on the Low Song Chye framework as modified by Niranjan. Mr Loh grabbed a handful of V7’s hair and pulled forcefully, causing V7 pain. V7 did not seek medical attention.

(1)   Situating case within sentencing bands

69     Given that V7 only suffered pain, this VCH offence also fell within Band 1 of the modified Low Song Chye framework, attracting a fine or a custodial term of up to six weeks’ imprisonment for first-time offenders pleading guilty. The custodial threshold is crossed because it is an offence committed on a public transport vehicle. I assess the starting point sentence to be one week’s imprisonment.

(2)   Adjustments to be made to starting point sentence

70     I apply an upward adjustment of one week’s imprisonment because:

(a)     the violence that was visited on V7 is gratuitous and unsolicited, as a result of Mr Loh’s poor acute situational reaction that was triggered by his perception that V7 and her husband were being unhelpful;

(b)     this offence is recalcitrant in the light of his previous VCH offence; and

(c)     the presence of a similar TIC charge for being a public nuisance by shouting repeatedly on the bus is aggravating.

71     The final sentence to be imposed on this VCH charge is therefore two weeks’ imprisonment.

Sentences on two OM, one public obscenity and one VCH charges to run consecutively

72     Because I am sentencing Mr Loh for three or more offences, I am mandated by law to run at least two of the sentences consecutively. I agree with the parties that I should order the following four sentences to run consecutively:

Charge

Individual sentence to run consecutively

MAC 901279 of 2023

OM against V1

5 weeks’ imprisonment

MAC 906539 of 2023

OM against V3

7 months’ imprisonment

MAC 906529 of 2023

Flashing at V4

1 month’s imprisonment

MAC 906532 of 2023

VCH against V6

3 weeks’ imprisonment



73     The aggregate sentence reflects the gravity of the sexual offences involved: PP v Law Aik Meng [2007] 2 SLR(R) 814 at [56], and Mr Loh’s overall criminality: PP v Syamsul Hilal bin Ismail [2012] 1 SLR 973 at [32], which is enhanced because of the multiplicity of his offences: Mohamed Shouffee bin Adam v PP at [41]. The aggregate sentence cannot be said to be substantially above the normal level of sentences for the most serious of the individual offences committed (ie 7½ months’ imprisonment for Band 2 OM): Mohammed Shouffee at [54]. It also cannot be said to be crushing or not in keeping with his past record (clean record notwithstanding but to be taken in the light of the multiple offences Mr Loh had committed) and his future prospects (a nine-month interruption to his current station in life being 58 years old presently): Mohammed Shouffee at [57]. For completeness, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Conclusion

Individual sentences

74     I pass the following individual sentences on Mr Loh, with four of the sentences to run consecutively:

Charge

Sentence

MAC 901279 of 2023

OM against V1

5 weeks’ imprisonment

(consecutive)

MAC 906537 of 2023

Attempted OM against V2

2 months’ 2 weeks’ imprisonment

MAC 906539 of 2023

OM against V3

7 months’ imprisonment

(consecutive)

MAC 906529 of 2023

Flashing at V4

1 month’s imprisonment

(consecutive)

MAC 904357 of 2024

Masturbating in public

2 weeks’ imprisonment

MAC 906532 of 2023

VCH against V6

3 weeks’ imprisonment

(consecutive)

MAC 906535 of 2023

VCH against V7

2 weeks’ imprisonment



The sentences on the remaining charges are to run concurrently with these four other sentences.

Aggregate sentence of eight months’ eight weeks’ imprisonment imposed

75     I therefore impose an aggregate sentence of eight months’ eight weeks’ imprisonment on Mr Loh, backdated to 10 March 2023 when he was first arrested to take into account the periods of remand and exclude the period when he was out on bail from 24 March 2023 to 11 June 2024. He was re-arrested on 12 June 2024 and has been in remand since 12 June 2024.

76     With Mr Loh’s consent, I refer him and his mother to the State Courts Centre for Specialist Services to follow up on a previous referral on 24 March 2023.

Observation on the conduct of the proceedings

77     I will be remiss if I did not commend parties on the manner in which they have conducted these proceedings. While they had their eye on the public interest, they also did not lose sight of the fact that the court has the unenviable task of sentencing a mentally disordered offender, and rendered every assistance to the court. In a previous case, I have endorsed the very measured and sensible approach taken by the defence in generally agreeing with the prosecution’s position on the individual sentences and parting ways only when it is necessary in the interests of the client: PP v Ryan Hafiz Syah bin Razali [2024] SGDC 245 at [46]. Such is also the case here with Ms Teo being fair, measured and even-handed and Mr Tan’s efforts in concurring with most of her sentencing positions. I reiterate that such efforts are not only laudable but enlightened and are to be encouraged in criminal proceedings. It is also clear to me that Mr Tan had built an excellent rapport with Mr Loh and conducted an empathetic defence. The plead-guilty mention was able to proceed smoothly because of that client rapport which I do not take for granted. In the circumstances, Mr Tan has discharged his duties as counsel with diligence and distinction and it is my hope that he will continue to support Mr Loh and his mother post-sentence as far as it is practicable.

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JDE v JDF
[2024] SGDC 279

Case Number:District Court Suit No 388 of 2021
Decision Date:25 October 2024
Tribunal/Court:District Court
Coram: Chiah Kok Khun
Counsel Name(s): Singh Ranjit (Francis Khoo & Lim) for the plaintiff; Prabhakaran S/O Narayanan Nair (Karan Nair and Co) for the defendant.
Parties: JDE — JDF

Civil Procedure – Foreign judgments – Enforcement – Common law action for enforcement of foreign judgment in personam in Singapore – Requirements for enforcement of foreign judgment in personam – Requirement of foreign judgment being for fixed sum of money

Civil Procedure – Foreign judgments – Enforcement – Reciprocal Enforcement of Foreign Judgments Act 1959

Civil Procedure – Foreign judgments – Enforcement – Maintenance Orders (Reciprocal Enforcement) Act 1975

25 October 2024

Judgment reserved.

District Judge Chiah Kok Khun:

Background

1       This case concerns the enforcement of a foreign judgment in Singapore. The question that arises for determination is whether a judgment of the Stockholm District Court can be enforced in Singapore by way of a common law action.

2       The plaintiff is a Swedish citizen. The defendant is a Singaporean. The plaintiff and the defendant married on 8 August 2014. There are two daughters to the marriage, aged eight and nine. The children have both Singapore and Swedish citizenships. The marriage was dissolved by the Stockholm District Court on 29 September 2018.

3       The parties have filed various applications in the Swedish and Singaporean courts since 2017. All proceedings filed in these courts have been contested. It would appear that the dissolution of the marriage is attended with intense acrimony between the parties.

The 7 April Order

4       On 31 August 2017, the defendant petitioned the Stockholm District Court for an order that the plaintiff pays interim, retroactive and final spousal maintenance to her (the “application for maintenance”).[note: 1] In her petition, the defendant stated that the application for maintenance should be adjudicated with Singapore law as the applicable law, while the Swedish procedural laws would apply. The plaintiff did not object to the application for maintenance been heard at the Stockholm District Court. The plaintiff however contested the claims for maintenance; and asked for costs and interest to be ordered against the defendant.[note: 2]

5       The defendant was represented by Swedish solicitors from 31 August 2017 when she submitted her petition for maintenance, until 2 August 2019. On 2 August 2019, the defendant’s Swedish solicitors submitted a written statement, informing the Stockholm District Court that they have ceased to act for the defendant. The defendant’s Swedish solicitors also requested on the defendant’s behalf that the Stockholm District Court continue to translate all documents into English.[note: 3]

6       On 28 March 2019, the Stockholm District Court held a pre-trial hearing. Both the parties attended the hearing remotely.[note: 4] The defendant submitted several written statements to the Stockholm District Court in support of her application for maintenance. The defendant’s written statements also included legal opinions from her Singapore lawyers.[note: 5]

7       On 14 November 2019, the Stockholm District Court heard the application for maintenance. The Stockholm District Court rejected the application and ordered that the defendant to pay costs and interest to the plaintiff, pursuant to the Swedish Code of Judicial Procedure.[note: 6]

8       Under the Swedish Code of Judicial Procedure, the defendant was entitled to a retrial and the Stockholm District Court could grant the defendant a re-trial by summarily making a decision ex parte. On 15 December 2019, the defendant petitioned the Stockholm District Court for a re-trial of her application for maintenance and the re-trial was granted.[note: 7] On 7 April 2020, the Stockholm District Court heard the defendant’s application for maintenance in the re-trial and again rejected her application. The Stockholm District Court also ordered the defendant, pursuant to the Swedish Code of Judicial Procedure, to pay the plaintiff costs and interest.[note: 8] The costs ordered is in the sum of SEK 426,033 (the “7 April Order”). Based on the exchange rate as at 7 April 2020, the equivalent amount in Singapore currency is $60,259.

9       On 9 April 2020, the Stockholm District Court served the 7 April Order by email on the defendant. On 17 April 2020, a translated copy of the 7 April Order was emailed to the defendant by the Stockholm District Court.[note: 9]

The EDE Order

10     Separately, on 15 May 2018, the plaintiff petitioned the Stockholm District Court to appoint an estate distribution executor (“EDE”) to carry out the division of the parties’ matrimonial assets.[note: 10] On 26 June 2018, the defendant’s Swedish solicitors submitted a written statement to the Stockholm District Court, agreeing to the appointment of an EDE to conduct a division of the matrimonial assets between the parties and proposes that a lawyer with experience in international law in Stockholm to be appointed. The defendant’s Swedish solicitors went on to suggest the name of a lawyer, Ms Susanne Ekberg-Carlsson.[note: 11]

11     On 7 September 2018, the Stockholm District Court appointed Ms Susanne Ekberg Carlsson as the Estate Distribution Executor.[note: 12] Between the end of 2018 and 2019, the defendant submitted five written statements to the EDE in respect of the matter of the distribution of the matrimonial assets.

12     On 22 January 2019, the EDE held a hearing in respect of the division of the matrimonial assets. The defendant’s solicitor attended the hearing. On 23 April 2020, the EDE made orders in relation to the division of matrimonial property between the defendant and the plaintiff (the “EDE Order”). Pursuant to the EDE Order, the defendant was to make a distribution payment, and to also pay interest to the plaintiff.[note: 13] The payment was in the amount of SEK 270,622. Based on the exchange rate as of 7 April 2020, the equivalent amount in Singapore currency is $38,288.

13     The EDE served the EDE Order on the defendant on 24 April 2020.[note: 14] On 17 December 2020, the plaintiff’s solicitors sent a letter of demand in respect of the 17 April Order and the EDE Order to the defendant’s former solicitors.[note: 15]

14     The plaintiff filed the present action against the defendant claiming for the sum of $60,259 under the 7 April Order and the sum of $38,288 under the EDE Order. The defendant however contends that the 7 April Order and the EDE Order are unenforceable in Singapore.

15     In support of his case, the plaintiff has produced an expert report on Swedish civil procedure. The expert evidence focuses in particular on the legal processes surrounding the EDE Order.

The issue to be determined

16     At the commencement of the trial, the parties applied for by-consent amendments to their respective pleadings. The amendments to the statement of claim essentially resulted in the withdrawal of the plaintiff’s claim in respect of the EDE Order. The plaintiff proceeds only with the claim in respect of the 7 April Order. As for the amendments to the defence, the key amendment is a reiteration of the defence that the 7 April Order is unenforceable in law.

17     With the by-consent amendments, the dispute is therefore effectively narrowed to a single question of law. As a result, counsel for the parties agreed to dispense with the expert evidence, and the cross-examination of factual witnesses. The trial proceeded on the basis of the facts as disposed to in the affidavits of evidence in chief, and submissions on the question of law made by counsel.

18     The parties agree that the sole question to be determined by me in this action is whether the 7 April Order should be enforced in Singapore by registration under the Reciprocal Enforcement of Foreign Judgments Act 1959 and the Maintenance Orders (Reciprocal Enforcement) Act 1975; or whether it could be enforced by way of a common law action.

19     A subsidiary question to be determined by me is the exchange rate to apply, should I give judgment in favour of the plaintiff.

Analysis and findings

20     The defendant’s case is that the 7 April Order is not enforceable in Singapore as it has not been registered as an order under the Reciprocal Enforcement of Foreign Judgments Act 1959 (the “REFJA”), or the Maintenance Orders (Reciprocal Enforcement) Act 1975 (the “MOREA”). The defendant’s contention is that the 7 April Order should be enforced by way of registration under either the REFJA or the MOREA (collectively, the “Acts”).

21     The defendant contends further that the Acts were passed by Parliament in order to have “proper control over what kinds and types of foreign judgments must be first registered as provided for” under the Acts. The defendant goes on to argue that to allow any foreign judgment to be enforced in Singapore without it first being registered under either of the Acts would render the Acts nugatory and redundant. The thrust of the defendant’s case is that our courts must ensure that all foreign judgments can only be enforced through the Acts. To allow the enforcement of a foreign judgment outside of the Acts is to circumvent the Acts.[note: 16]

The two existing regimes for enforcing foreign judgments in Singapore

22     It is however settled law that quite apart from the registration regime under the Acts, a foreign judgment may also be enforced by an action in court for the amount due under it.

23     The Court of Appeal in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 (“Poh Soon Kiat”) stated as follows at [13]-14]:

13    … The law on the enforceability of foreign judgments in Singapore is not in doubt, and is summarised in, inter alia, Dicey, Morris and Collins on The Conflict of Laws (Sir Lawrence Collins gen ed) (Sweet & Maxwell, 14th Ed, 2006) (“Dicey, Morris and Collins”) at vol 1, para 14-020 as follows:

For a claim to be brought to enforce a foreign judgment, the judgment must be for a definite sum of money, which expression includes a final order for costs, e.g. in a divorce suit. It must order X, the defendant in the [enforcement] action, to pay to A, the claimant, a definite and actually ascertained sum of money; but if a mere arithmetical calculation is required for the ascertainment of the sum it will be treated as being ascertained; if, however, the judgment orders him to do anything else, e.g. specifically perform a contract, it will not support an action, though it may be res judicata. The judgment must further be for a sum other than a sum payable in respect of taxes or the like, or in respect of a fine or other penalty.

14    An in personam final and conclusive foreign judgment rendered by a court of competent jurisdiction, which is also a judgment for a definite sum of money (hereafter called a “foreign money judgment”), is enforceable in Singapore unless:

(a)    it was procured by fraud; or

(b)    its enforcement would be contrary to public policy; or

(c)    the proceedings in which it was obtained were contrary to natural justice.

Thus, in Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515, this court stated (at [12]):

Quite apart from the arrangements under the RECJA or the [Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed)], it is settled law that a foreign judgment in personam given by a foreign court of competent jurisdiction may be enforced by an action for the amount due under it so long as the foreign judgment is final and conclusive as between the same parties. The foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error, whether of fact or of law: Godard v Gray (1870) LR 6 QB 139. In respect of such an action, an application for summary judgment may be made on the ground that the defendant has no defence to the claim: Grant v Easton (1883) 13 QBD 302. The local court will only refrain from enforcing a foreign judgment if it is shown that the plaintiff procured it by fraud, or if its enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were opposed to natural justice: see Halsbury’s Laws of England vol 8(1) (Butterworths, 4th Ed) (1996 Reissue) paras 1008–1010.

24     It is therefore well established that there are in fact two existing regimes for enforcing foreign judgments in Singapore. Under the first regime, the judgment creditor sues on the foreign judgment by way of a common law action in Singapore. Under the second regime, the judgment creditor registers the foreign judgment in the General Division of the High Court. See Poh Soon Kiat at [56]-[57].

25     In her submissions, the defendant makes reference to the rhetorical question of the need for the Acts if foreign judgments can be enforced outside of the Acts.[note: 17] In my view, the rationale of the Acts is plain. The reciprocal regimes for the enforcement of foreign judgments under the Acts are clearly to facilitate expeditious enforcement of judgments of reciprocating countries. In Singapore, such foreign judgments can be enforced by way of registration of the judgments in the General Division of the High Court (s 4 of the REFJA). The MOREA likewise provides for the registration of maintenance orders made in reciprocating countries (ss 6 & 7 of the MOREA). Upon such registration, the judgments and orders are enforceable as if they are judgments and orders made by Singapore courts. The registration procedure under the Acts therefore obviates the court process of a common law action to enforce a foreign judgment, and the time and costs expenditure attendant upon such actions.

26     It does not follow however that foreign judgments that do not come under the auspices of the Acts cannot be enforced in Singapore. Whilst these judgments cannot be enforced by way of the registration process, they can be enforced by the usual court processes, as in the present case. The difference of course is that the party seeking to enforce such judgments does not have the benefit of the time and costs savings that come with the expedited process under the registration regime of the Acts.

27     In the present case, it is not disputed that Sweden is not a reciprocating country under the Acts. However, that by itself is not a bar to the enforcement of the 7 April Order. The plaintiff is enforcing the 7 April Order by suing on it by way of the action before me.

28     It the light of the foregoing, my answer to the question to be determined by me is that the 7 April Order could be enforced by way of a common law action. It is clearly not the law that foreign judgments can only be enforced in Singapore under the auspices of the Acts.

29     In view of the agreement reached by parties at the commencement of the trial to proceed on the basis of the sole question of law of whether the 7 April Order could be enforced by way of a common law action, it follows from my answer to the question of law that the plaintiff’s claim against the defendant should be allowed.

The requirements for the enforcement of a foreign judgment by way of a common law action

30     However, for completeness I turn now to briefly discuss the requirements for the enforcement of a foreign judgment by way of a common law action in Singapore. The requirements can be discerned from Poh Soon Kiat (at [14]) to be as follows:

(a)     The foreign judgment must be a final and conclusive judgment for a definite sum.

(b)     The foreign judgment:

(i)       was not procured by fraud;

(ii)       its enforcement would not be contrary to public policy; and

(iii)       the proceedings in which it was obtained were not contrary to natural justice.

31     In the present case, the 7 April Order is a judgment for the sum of SEK 426,033. It is also final and conclusive. In this regard, it has been held in The “Bunga Melati 5” [2012] 4 SLR 546 at [81] that a judgment is final and conclusive on the merits if it is one which cannot be varied, re-opened or set aside by the court that delivered it.

32     As for the other requirements, there is no allegation by the defendant that the 7 April Order was procured by fraud, or that its enforcement would be contrary to public policy. In respect of the question of natural justice, this is not a live issue in the present case, with the agreement reached by parties at the commencement of the trial to dispense with the expert evidence and the cross-examination of factual witnesses; and for the trial to proceed on the basis of the facts as disposed to in the affidavits of evidence in chief. Parties have agreed to proceed on the basis of the sole question of law of whether the 7 April Order could be enforced by way of a common law action.

33     In any event, I note from the agreed facts that the defendant had actively participated in the court processes that took place before the Stockholm District Court. I note further that the 7 April Order, which is in essence a costs order, was made by the Stockholm District Court on the basis of the Swedish Code of Judicial Procedure and the Swedish Interest Act. The plaintiff had submitted to the Stockholm District Court his legal bills and his solicitors’ time sheets for purposes of his claim for costs and interest. The Stockholm District Court had the benefit of these documents before making the 7 April Order.[note: 18]

34     I therefore find that the requirements for the enforcement of the 7 April Order by way of a common law action are satisfied. In the final analysis, the 7 April Order is in the nature of a judgment debt. As such it is sufficient proof of the debt owed to the plaintiff by the defendant. I am not to revisit the merits of the 7 April Order in the current proceedings or let these proceedings turn into a re-hearing or an appeal.

35     As for the subsidiary question of the exchange rate to apply to the judgment sum, it appears from the closing submissions of the parties that they are now ad idem that any judgment that I give should be in Swedish Kronos.

Conclusion

36     In the premises of the above, the defendant is to pay the plaintiff the sum of SEK 426,033, with interest at 5.33% per annum, from the date of filing of this suit to the date of judgment. Parties are to file written submissions on the question of costs, to be limited to three pages, within 14 days hereof.

A costs-saving and efficient way of resolving dispute

37     I would just add a few words on the different ways to resolve a civil dispute. In the State Courts we have over the years implemented protocols to assist parties to resolve their civil disputes in an efficient, timely, cost-saving and proportionate manner. These protocols include the civil simplified process for Magistrate Court’s cases.[note: 19] Implemented since November 2024, smaller value civil claims of less than $60,000 undergo a simplified process with upfront disclosure, early and robust case management, curtailed interlocutories and a simplified trial. By mutual consent, parties in District Court cases can also avail themselves of the civil simplified process. We have also implemented a protocol which provides for civil trials or assessments of damages to be conducted on a documents-only basis (“DOTA hearing”).[note: 20] The DOTA hearing is to allow for quicker disposal of cases which whilst involving issues that require adjudication, parties’ contentions on such issues could be proven by way of documentary evidence and expressed in writing.

38     These protocols allow parties, and their counsel, to avail themselves of quicker and cheaper ways of resolving their disputes. However, beyond these tools that we have placed at parties’ disposal, parties can, and should, on their own agree on ways to achieve costs and time savings in any given case. These include narrowing the issues and limiting the scope of the dispute. Factual disagreements in particular, take up an inordinate amount of trial time. Agreeing on facts and delineating remaining issues for adjudication goes a long way in shortening proceedings. Counsel can assist the court by advising parties of the costs and time savings in taking such an approach. Unfortunately, there are however counsel who insist on taking up every point, whether legal or factual and litigate it to the bitter end. Much is to be said for proceeding on the one or two most substantial points and focusing on persuading the court to find in favour of a party on the basis of those points. If the court is not with the party on those points, flogging another dozen of smaller issues will not advance its case, and often serves instead to obfuscate the main issue that the dispute pivots on.

39     The approach to the conduct of the present dispute by the counsel before me is exemplary of a costs-saving and efficient way of resolving a dispute. It is not only time and costs saving, but also served to de-escalate a dispute with deep underlying acrimony between the parties. I record my appreciation to both counsel for adopting a sensible approach, and the assistance they have given to the parties and the court in doing so.

[note: 1]Pp 27-33 of plaintiff’s AEIC.

[note: 2]Pp 34-43 of plaintiff’s AEIC.

[note: 3]Pp 1254-1255 of plaintiff’s AEIC.

[note: 4]Pp 546-563 of plaintiff’s AEIC.

[note: 5]Pp 564-927 of plaintiff’s AEIC.

[note: 6]See pp 928-935 of the plaintiff’s affidavit for copies of the judgment dated 14 November 2019 and its certified translation.

[note: 7]See pp 787-927 of the plaintiff’s affidavit for a copy of the Defendant’s petition dated 15 December 2019 for re-trial.

[note: 8]See pp 939-948 of the plaintiff’s affidavit for a copy of the order dated 7 April 2020.

[note: 9]See pp 954-957; 1743-1756 of the plaintiff’s affidavit.

[note: 10]A copy of the petition dated 15 May 2018 is found at pp 962-965 of the plaintiff’s affidavit.

[note: 11]A copy of the Defendant’s written statement to the Stockholm District Court dated 26 June 2018 is found at p 966 of the plaintiff’s affidavit.

[note: 12]A copy of the court order made by the Stockholm District Court on 7 September 2018 is found at pp 969-976 of the plaintiff’s affidavit.

[note: 13]A copy of Executor’s Orders is found at pp 1069-1082 of the plaintiff’s affidavit.

[note: 14]See pp 1083-1084 of the plaintiff’s affidavit.

[note: 15]See pp959-961 of the plaintiff’s affidavit.

[note: 16]Paras 12-13 of the defendant’s closing submissions.

[note: 17]Paras 14 of the defendant’s closing submissions.

[note: 18]See pp 1703-1742 of the plaintiff’s affidavit.

[note: 19]See Order 65 of Rules of Court 2021.

[note: 20]See Practice Direction 52 of the State Courts Practice Directions 2021.

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Public Prosecutor v Benjamin Song Junde
[2024] SGDC 261

Case Number:District Arrest Case No 909301 of 2024 & 11 Others
Decision Date:03 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Louis Ngia (Attorney-General's Chambers) for the Public Prosecutor; Yoong Tat Choy Joseph (Dominion LLC) for the Accused.
Parties: Public Prosecutor — Benjamin Song Junde

Criminal Law – Offences – Property – Cheating

Criminal Law – Statutory offences – Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act – Transferring benefits from criminal conduct

Criminal Procedure and Sentencing – Sentencing – Principles

3 October 2024

District Judge Paul Quan:

Introduction

1       This is an egregious case of health insurance fraud, with the economic value involved in the offences amounting to about S$1.3 million, perpetrated over the course of nearly two years. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; as well as

(c)     parties’ positions and my decision.

Brief facts

2       At the time of the offences, the accused, Benjamin Song Junde (“Mr Song”), a 40-year-old Singaporean, and the co-accused, Charn Sze Choong (“Mr Charn”) were friends. Mr Song acted as a bookie and Mr Charn would place online poker and soccer bets through Mr Song and would settle his gambling winnings and debts with Mr Song on a net basis each week. At the time, Mr Charn was a claims assessor with Prudential Assurance Co Singapore (Pte) Ltd (“Prudential”). From July 2019, Mr Song became aware that Mr Charn was making fictitious outpatient insurance claims (“the fictitious claims”) on two insurance policies held by Mr Song’s wife under which Mr Song was insured (“the insurance policies”). Mr Song did not inform Prudential that he did not make the claims. The payouts were then used to repay Mr Charn’s gambling debts owing to Mr Song and two other third parties. In doing so, Mr Song abetted by intentionally aiding Mr Charn to deceive Prudential from July 2019 to February 2021 on no less than 136 occasions into believing that the claims made on the insurance policies were legitimate. Consequently, Prudential was dishonestly induced to deliver a total of S$1,312,537.87 to various designated bank accounts belonging to Mr Song, Mr Charn and two other third parties. On five occasions in August 2019, Mr Charn caused Prudential to make payouts to Mr Song in excess of the gambling debts he owed to Mr Song. Mr Song agreed to transfer such excess payouts that he received into Mr Charn’s bank account.

Charges

3       Mr Song has pleaded guilty to four charges, three of abetting by intentionally aiding Mr Charn commit an offence of cheating under section 420 of the Penal Code 1871 (2020 Rev Ed) (“PC”) for 74 incidents of insurance fraud, and one of transferring Mr Charn’s benefits from criminal conduct to him under section 47(2)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2020 Rev Ed) (“CSDA”). Mr Song also consented to have eight similar cheating charges under section 420 of the PC taken into consideration for the purpose of sentence (“TIC”) for the remaining 62 incidents of insurance fraud.

Prescribed punishment

4       For each cheating charge, Mr Song must be punished with imprisonment that may extend to ten years. This can also be coupled with a fine. He is also subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the cheating charges are framed as amalgamated charges for separate transgressions amounting to a course of conduct under section 124(4) of the CPC. As for the CDSA charge, Mr Song can be punished with a fine not exceeding S$500,000 and/or imprisonment for a term not exceeding ten years.

Parties’ positions

5       Mr Song is a first offender with no criminal antecedents. The prosecution has sought to impose a global sentence of 17 to 20 months’ imprisonment on him based on:

(a)     general deterrence for offences committed against financial institutions;

(b)     loss caused by insurance fraud offences to insurance companies and consumers;

(c)     difficulty in detecting such fraud offences perpetrated by the very same people whose duty is to protect and safeguard the insurance system by identifying and stopping fraudulent claims in their tracks;

(d)     the high economic value involved in the offences;

(e)     Mr Song’s level of culpability in the offences that resides at the high end of the low culpability spectrum; and

(f)     Mr Song’s early indication of guilty plea.

6       The defence has sought a term of 17 months’ imprisonment, which is the lower end of the sentencing range that the prosecution has submitted, on the basis that Mr Song:

(a)     was not the mastermind and it was Mr Charn who had devised the entire scheme in which he would enter and approve the fictitious claims in his capacity as claims assessor;

(b)     has realised the follies of his ways and is remorseful; and

(c)     had indicated his intention to plead guilty at the earliest available opportunity.

Court’s decision

7       I sentence Mr Song to 18 months’ two weeks’ imprisonment and set out the reasons for my decision.

Issues to be decided

8       There are three main issues I have to decide in this case.

Operative sentencing principle; harm-culpability assessment; personal aggravating and mitigating factors; application of case authorities

9       They are:

(a)     first, the main sentencing principle(s) operating in this case;

(b)     second, the assessment of:

(i)       the harm caused by the offences,

(ii)       Mr Song’s level of culpability in the offences; and

(iii)       the aggravating and mitigatory weight to accord relevant factors personal to Mr Song that present themselves in this case; and

(c)     third, the appropriate individual sentences and final aggregate sentence to impose on Mr Song having regard to relevant case authorities.

10     I resolve the issues in this way:

(a)     deterrence and retribution are the operative sentencing principles in this case. There is a strong public interest in deterring insurance fraud because it affects the delivery of financial services and has downstream effects for the general population of consumers. The need for deterrence has to be tempered by retributive considerations the pegs criminal punishment to the nature of the offence and the offender;

(b)     The nature of the offences is serious in that the economic value involved is very high amounting to some S$1.3 million over the course of nearly two years. Mr Song’s culpability is assessed to be low because he is not the mastermind or primary offender. However, to the extent that:

(i)       he is complicit in the knowledge that Mr Charn had devised a scheme to cause Prudential to issue payouts based on the fictitious claims made on the insurance policies, and

(ii)       he has in turn acquiesced to the scheme and did not inform Prudential that he did not make those claims because he was benefitting from the scheme as Mr Charn was repaying the debts owed to him through the payouts, and also extended that same benefit to a third party, one Mr Baey Kian Guan (“Mr Baey”),

Mr Song’s culpability is at the high end of the low culpability spectrum. There is also the aggravating presence of eight similar cheating charges that are TIC and the countervailing mitigating factor of his guilty plea; and

(c)     While the prosecution had relied on case precedents that are not quite on point because they do not arise out of the context of insurance fraud, the individual sentences that the prosecution had sought to extrapolate from them are broadly consistent with the range of sentences that had been imposed for previous cheating offences under section 420 of the PC. Based on the economic value involved in the present offences (being S$164,156, S$307,160 and S$234,137), a primary offender can expect a custodial term of at least 15 months, 22 months and 18 months respectively for the three cheating charges. Given the secondary role of Mr Song, his culpability being in his omission to inform Prudential of the true state of affairs of the claims that were made on the insurance policies, acquiescing in Mr Charn’s scheme for personal gain, and the relatively dated offences, Mr Song’s criminality can be properly reflected in the individual sentences for the primary offender by scaling them down linearly to arrive at imprisonment terms of 7½ months, 11 months and nine months for the three cheating charges.

Analysis of issues: cheating charges

11     I analyse the issues in turn in respect of the cheating charges.

Issue 1: Deterrence and retribution as operative sentencing principles

12     Deterrence and retribution are the main sentencing principles operating in this case.

Strong public interest in deterring insurance fraud

13     There is a strong public interest to deter insurance fraud as it affects the delivery of financial services, implicating the provision and underwriting of insurance provided by insurance companies, which are financial institutions: PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24(e)]. In a case involving the submission of a fraudulent claim on a personal accident insurance policy, the importance of deterring like-minded individuals from abusing the insurance claims system was underscored because if left unchecked, this would lead to increased costs for insurers, whether due to more stringent investigations or enlarged payouts, and would in turn increase the cost of insurance for consumers: PP v Huang Hsin Tian Silver [2023] SLR (StC) 268 (“Silver Huang”) at [20]. In the context of motor insurance fraud, similar observations about losses suffered by insurance companies through fraud are invariably passed down to consumers in the form of increased premiums, as well as the public interest to deter such fraud to curb increasing premiums were endorsed: PP v Sudhagaran s/o Aruvinasan [2023] SGDC 138 at [217].

14     In the present case, the prosecution has made the same point in the specific context of health insurance fraud and the attendant detriment on the health of the general population of Singapore and the quality of healthcare they are able to access, in a climate of soaring insurance premiums that are artificially jacked up by higher costs as a result of losses suffered by insurance companies due to insurance fraud. Offences that are difficult to detect, such as the present committed by claims assessors, who gatekeep the very process that safeguards insurers against fraudulent claims by assessing the merits of the claims, also attract general deterrence: Law Aik Meng at [25(d)].

Proportionality through retributive justice

15     The need for deterrence has to be tempered by proportionality with the insistence of retributive justice pegging punishment to the nature of the offence and the offender. To that end, I analyse and balance the relevant offence-specific harm-culpability factors, as well as offender-specific aggravating and mitigating factors personal to Mr Song.

Issue 2(a): Nature of offence and harm caused

16     The victims against whom the insurance fraud was perpetrated go beyond Prudential but also includes indirect victims who would have to bear the cost of the fraud in the form of increased premiums for their health insurance: Sudhagaran at [217].

Harm caused by offence is high

17     In sentencing property offences, the economic value involved in the offence is a proxy for the degree of criminal benefit received by the offender and the degree of harm caused to the victim, and both are relevant sentencing considerations; therefore the greater the economic value, the heavier the sentence: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [42].

18     In this case, the loss suffered by Prudential, and therefore the harm caused to it, is high. The total loss caused by the offences is in the region of a staggering S$1.3 million. The three cheating charges preferred against Mr Song accounts for more than half that amount about S$700,000, of which he benefited from some S$470,000. Mr Song reaped the full benefits of the fraud because the debts that Mr Charn owed him continued to be financed by these massive payouts at no cost to Mr Song because the fictitious claims did not cause an increase in the premiums payable to maintain the insurance policies. He was also able to extend that same benefit to Mr Baey, a third party. The loss also fell where they were because no restitution was made. The loss must have been passed on and borne by other consumers and/or indeed the general population of Singapore insured for healthcare as a whole, when such losses affect market sentiment and consequently implicate a more conservative approach to the provision and underwriting of health insurance.

19     While the victims’ pecuniary loss and the Mr Song’s pecuniary benefit is proportionate to the severity of the sentence, this relationship is not linear and other relevant sentencing considerations such as offender culpability and offender-specific factors have to be evaluated and weighed: PP v Lim Beng Kim, Lulu [2023] SGDC 9 at [29].

Issue 2(b): Nature of offence and offender culpability

20     I assess Mr Song’s culpability to be low because he was not the mastermind. He did not devise the fraudulent scheme, or enter and approve the fictitious claims on the insurance policies. His complicity was in aiding or facilitating (as opposed to conspiring with or instigating) Mr Charn perpetrate the cheating offences against Prudential through his omission or deliberate inaction.

Mr Song’s culpability was at high end of low culpability spectrum

21     However, his blameworthiness should reside at the high end of the low culpability spectrum for three reasons:

(a)     first, he was complicit in the knowledge that Mr Charn had devised a scheme to cause Prudential to issue payouts based on the fictitious claims made on the insurance policies;

(b)     second, by his deliberate omission and inaction, he has in turn acquiesced to the scheme to Prudential’s detriment;

(c)     third, he was motivated by personal gain not to act and was quite content to turn a blind eye and bury his head in the sand in allowing Mr Charn to make fictitious claims on the insurance policies because the process benefitted him as Mr Charn was repaying any debts owed to him through the payouts and he could also extend that benefit to others; and

(d)     fourth, his sustained omission and inaction enabled Mr Charn to perpetrate no less than 136 occasions of fraud over the course of nearly two years.

Issue 2(c): Offender-specific personal aggravating and mitigating factors

Mr Song not to be regarded as first offender

22     Although Mr Song has no criminal antecedents, I exercise the prerogative not to consider him as a first offender on account of his multiple offences, even if he has no prior convictions: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Amalgamated charges as signalling higher criminality and gravity of conduct

23     The nature of the charges preferred against Mr Song is such that no less than 74 separate transgressions have been amalgamated as a course of conduct across only three individual charges. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct as is the present case: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Presence of TIC charge aggravating

24     The TIC charges are likewise amalgamated, framing 62 separate transgressions as a course of conduct across eight individual charges. They also involve cheating under section 420 of the PC accounting for S$600,000 or so in losses due to the fraud perpetrated. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37].

Full 30% reduction in sentence for guilty plea

25     Mr Song’s guilty plea carries mitigatory weight and I accord him the full 30% reduction in sentence following the recommendations of the Sentencing Advisory Panel in its guidelines on the reduction of sentence for guilty pleas.

Issue 3: Sentences for section 420 PC cheating cases

26     The prosecution relied on PP v Tan Keat Siang [2020] SGDC 220 and other case precedents involving offences under section 420 of the PC to extrapolate the individual sentences it has proposed to impose on each cheating charge, namely:

(a)     Six to seven months’ imprisonment for the first cheating charge involving 19 transgressions with S$164,156 as the economic value involved in the offence;

(b)     11 to 13 months’ imprisonment for the second cheating charge involving 33 transgressions with S$307,160 as the economic value involved in the offence; and

(c)     Eight to ten months’ imprisonment for the third cheating charge involving 22 instances with S$234,137 as the economic value involved in the offence.

27     Although the cases relied upon by the prosecution are not quite on point because they do not arise from the specific context of insurance fraud, the individual sentences extrapolated from Tan Keat Siang for the present charges are broadly consistent with the range of sentences imposed for previous cheating offences. Without prejudice to Mr Charn’s case, I hold the preliminary view that a primary offender can expect a custodial term of at least 15 months, 22 months and 18 months corresponding respectively to the economic values involved in the present offences (being S$164,156, S$307,160 and S$234,137). This could explain previous sentences that had been imposed for lower values of insurance fraud: for instance, in Silver Huang, a one-week imprisonment term was imposed where the economic value of the offence was S$1,128.57; in PP v Lau Soon Kwan [2015] SGDC 209, a six-month imprisonment term was imposed where the economic value of the offence was S$7,110, whereas in PP v Hardeep Singh Kler s/o Jaswant Singh [2017] SGDC 90, eight-month imprisonment terms were imposed where the economic values of the offences were S$4,688 and S$5,500.

28     Mr Song’s criminality can properly be reflected in the individual sentences for the primary offender by scaling them down linearly to arrive at imprisonment terms of 7½ months, 11 months and nine months to be imposed on the three cheating charges, given:

(a)     the secondary role of Mr Song;

(b)     his culpability being in his omission to inform Prudential of the true state of affairs regarding the fictitious claims on the insurance policies;

(c)     his acquiescence in Mr Charn’s scheme for personal gain; and

(d)     that he had stayed crime-free during the lapse of time between the time the offences were first committed and sentencing today.

Analysis of issues: CDSA charge

29     I analyse three specific issues that the CDSA charge engages with, namely the approach in sentencing the CDSA offence, Mr Song’s culpability in the offence and the mitigatory weight of his guilty plea.

Sentencing approach

30     For the CDSA charge, the prosecution has justified the sentence of one to two months’ imprisonment that it has sought on the basis of Chong Kum Heng v PP [2020] 4 SLR 1056. The case of PP v Merlur bte Ahmad [2024] SLR (StC) 1 is more on point. As I had observed in PP v Bryan Lim Teng Siang, unreported, District Arrest Case No 904407 of 2024, Melur applied the indicative sentences set out in the sentencing bands for “self-laundering” offences where criminal benefits were not recovered, which were laid down in Chong Kum Heng v PP [2020] 4 SLR 1056 at [71]. A discount to the indicative sentences was also applied in Melur because the accused in that case was not laundering her own ill-gotten gains, but what she had reasonable grounds to believe to be another person’s criminal benefits. This was also the case for Mr Song. For present purposes, it suffices to note that a two-week imprisonment term was imposed on the accused in Melur upon her conviction after trial on the section 47(2)(b) CDSA charges involving transfer amounts of between S$1,960 to S$2,975.

Mr Song’s culpability

31     I therefore took two weeks’ imprisonment as the starting sentence and apply an upward adjustment of two weeks’ imprisonment based on Mr Song’s culpability in the offence:

(a)     first, Mr Song had reasonable grounds to believe, if not knew, that he was transferring Mr Charn’s benefits from criminal conduct to him because Mr Song knew that he caused Prudential to make payouts that were in excess of the debt repayments from him to Mr Song from time to time;

(b)     second, he agreed to help transfer the excess payouts to Mr Charn when this had nothing to do with him or the repayment arrangements that existed between him and Mr Charn; and

(c)     third, he did on five separate occasions transfer to Mr Charn a total of S$2,657, which he knew were criminal proceeds from Mr Charn’s fictitious claims on the insurance policies.

Full 30% reduction in sentence for guilty plea

32     On the basis of his guilty plea as a mitigating factor, I accord him the full 30% reduction in sentence and arrive at the final sentence of three weeks’ imprisonment for the CDSA charge.

Conclusion

Individual sentences

33     The individual sentences that I impose on the four charges preferred against Mr Song are:

(a)     seven months’ two weeks’ imprisonment for the first cheating charge involving 19 transgressions with S$164,156 as the economic value involved in the offence;

(b)     11 months’ imprisonment for the second cheating charge involving 33 transgressions with S$307,160 as the economic value involved in the offence;

(c)     nine months’ imprisonment for the third cheating charge involving 22 instances with S$234,137 as the economic value involved in the offence; and

(d)     three weeks’ imprisonment for the CDSA charge for transferring Mr Charn’s benefits from criminal conduct to him totalling S$2,657 on five occasions.

Aggregate sentence of 18 months’ two weeks’ imprisonment imposed

34     I am mandated by law to run at least two of the sentences consecutively and I therefore order the sentences on the first and second cheating charges to run consecutively with the sentences on the third cheating and CDSA charges to run concurrently with these other two sentences.

35     I therefore sentence Mr Song to an aggregate imprisonment term of 18 months and two weeks. The aggregate sentence reflects the full extent of Mr Song’s criminality and cannot be said to be crushing and not in keeping with Mr Song’s past record (clean record notwithstanding in the light of multiple offences that he had committed) and his future prospects (being 40 years old currently).

"},{"tags":["Criminal Law – Offences – Outraging of modesty","Criminal Procedure and Sentencing – Sentencing – Appeals"],"date":"2024-10-22","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No. 903603 of 2022 and another, Magistrate's Appeal No. 9149-2024-01","title":"Public Prosecutor v JDD","citation":"[2024] SGMC 75","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32373-SSP.xml","counsel":["Quek Lu Yi (Attorney-General's Chambers) for the Public Prosecutor","Ramesh Chandr Tiwari (Ramesh Tiwari) for the Accused."],"timestamp":"2024-10-28T16:00:00Z[GMT]","coram":"Lim Tse Haw","html":"Public Prosecutor v JDD

Public Prosecutor v JDD
[2024] SGMC 75

Case Number:Magistrate Arrest Case No. 903603 of 2022 and another, Magistrate's Appeal No. 9149-2024-01
Decision Date:22 October 2024
Tribunal/Court:Magistrate's Court
Coram: Lim Tse Haw
Counsel Name(s): Quek Lu Yi (Attorney-General's Chambers) for the Public Prosecutor; Ramesh Chandr Tiwari (Ramesh Tiwari) for the Accused.
Parties: Public Prosecutor — JDD

Criminal Law – Offences – Outraging of modesty

Criminal Procedure and Sentencing – Sentencing – Appeals

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9149/2024/01.]

22 October 2024

District Judge Lim Tse Haw:

Introduction

1       The accused person, (“the Accused”), claimed trial before me to the following two charges:

First charge (MAC 903603 of 2022)-

On 19 August 2021, at or about 12 a.m, in a car driven by [the Accused], [the Accused] did use criminal force on [the Victim] by using his hand to touch her right breast, skin-on-skin, on two occasions to outrage her modesty, and he has thereby committed an offence punishable under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)(“the Penal Code”);

Second charge (MAC 903604 of 2022)-

On 19 August 2021, at or about 12 a.m, in a car driven by [the Accused], [the Accused] did use criminal force on [the Victim] by using his hand to touch her vagina, skin-on-skin, intending to outrage her modesty, and he has thereby committed an offence punishable under s 354(1) of the Penal Code.

2       After a trial, I found the Accused guilty of the above two charges and convicted him. I sentenced him to a global sentence of 12 months’ imprisonment and three strokes of the cane.

3       Being dissatisfied with the above decisions, the Accused has appealed against the same.

The Prosecution’s Case

(i)   Statement of Agreed Facts

4       By way of a Statement of Agreed Facts (“ASOF”), both the prosecution and defence agreed on the following material facts:

I.    The Accused

(1)    The accused is (redacted), a 26-year-old Singaporean male (date of birth (redacted) bearing NRIC No. (redacted).

II.    Facts Concerning The Investigative Process

(2)    On 21 August 2021, at 8.25 pm, the Victim lodged a police report at Woodlands East Neighbourhood Police Centre. Sergeant (1) Lee Zheng Quan recorded the report in a police report bearing Report No. L/20210821/2059.[note: 1]

(3)    On 22 August 2021, at about 12 pm, the following items of clothing were seized as case exhibits:

(a)    One black bra[note: 2]

(b)    One grey panty[note: 3]

(c)    One black top[note: 4]

(d)    One black pants[note: 5]

(4)    The seizure of the case exhibits set out at [3] was documented by Investigation Officer Inspector Wong Xiao Hui on 13 April 2022, at 2.50 pm, in a police report bearing Report No. L/20220413/2034.[note: 6]

(5)    On 23 August 2021, at 8.02 pm, Forensic Specialist Lim Shu Qiang, under the direction of IO Fawzey, took 12 photographs of [the accused’s car].[note: 7]

(6)    At 11.35 a.m, on the same day, the accused was placed under arrest at Woodlands Police Divisional Headquarters for an offence of outrage of modesty under s 354(1) of the Penal Code. On the same day at 11.42 a.m, Investigation Officer Staff Sergeant Muhammad Fawzey bin Karimghani (“IO Fawzey”) lodged a police report bearing Report No. L/20210823/2013[note: 8] to document the arrest.

(ii)   Evidence of the Victim

5       The Victim[note: 9] testified that she was born in May 2001. At the material time of the offences on 19 August 2021, she was studying for a diploma in mass communication. She was also working part-time at a restaurant at Jem Shopping Centre in Jurong (“the Restaurant”) since January 2021.

6       She described the Accused as her co-worker. She was not sure if he was working at the Restaurant, as she only saw him a few times helping out in the Restaurant before the day of the incident. On 18 August 2021, she started her shift at the Restaurant about around 11 a.m. to 12 noon. Her duties were to take orders from the customers and clear tables. The Accused was also working at the Restaurant on that day. She described her relationship with the Accused as professional in nature as they were not friends, and they did not have much interaction. She described the top she was wearing on that day[note: 10] was soft and stretchy, and had a V-shaped neckline. The pants she was wearing that day[note: 11] was also stretchy and smooth.

7       On that day, a friend of the Restaurant’s manager (“the Manager”)[note: 12] came for a visit and bought them and some other colleagues alcoholic drinks. The Victim had two bottles of Soju with Sprite. The drinking session ended at about 11.30 p.m. The Victim said she was tired and sleepy. The Manager and his friend left first. The Victim, another colleague “M” and the Accused were the last to leave the Restaurant. “M” then asked the Accused to send the Victim home, as “M” could walk home from the Restaurant. The Victim was okay with “M"’s suggestion. The Victim said she did not pay any attention as to whether the Accused drank any alcohol that night.

8       When they reached the Accused’s car, the Victim said she would usually take the back seat of a car but the Accused asked her to sit at the front passenger seat instead. The Victim then sat at the front passenger seat of the Accused’s car. While in the car, the Victim texted her sister[note: 13] (“Sister”) to tell her she would be coming home.[note: 14] The Accused then told the Victim to stop texting and took her phone and kept the phone for her. The Victim also said that initially she was hugging her bag in front of her but the Accused told her to put her bag in the back seat, which she did. The Accused then told her to rest and close her eyes to sleep. She did close her eyes but she did not sleep as she could not fall asleep that easily. She was also feeling a bit queasy.

9       After the Accused had driven for a while, the Victim vomited in her mask and some of the vomit spilt onto her top and chest area. The Accused then stopped his car along the expressway. He got out of the car and came to the Victim’s side. He then patted her chest area on her top where the vomit was to help her clean up. He then went back into the car and started driving again. The Victim apologised to the Accused for vomiting in his car. The Accused then told the Victim to rest and sleep. The Victim then closed her eyes to rest.

10     After the Accused had driven for a few minutes, the Victim felt something cold on her breast and she felt the Accused squeezing her right breast. I observed that the Victim looked distressed and broke down at this stage of her evidence in chief. [note: 15] The Victim testified that the Accused’s hand went under her top and bra and squeezed her right breast. The squeeze was for a few seconds and he did it twice. After the first time, the Victim said she just froze and did not know what to do. She was also afraid that if she were to react, she did not know what else he would do to her. So she did not react. When he did it the second time, she also did not react.

11     The Victim testified that she also felt the Accused’s hand moved up from her thigh, into her pants and then into her panty, and stroked her vagina near the pubic hair at least once. However, she cannot remember whether this was after or in between the two times when the Accused touched her right breast. The Victim said that she did not consent to the touching. She was disgusted by this. The Victim said that on all the occasions when the Accused touched her, he was not driving.

12     After this, the Accused tapped on her shoulder to tell her that they had arrived at her house. She took her bag from the car, thanked the Accused and quickly got off the car. Her Sister was still waiting up for her when the Victim reached home. A short while after she reached home, the Victim started crying and said to her Sister “he touched me, he touched me”. Her Sister was confused and asked her who touched her and where, but the Victim said she cannot remember if she had answered her Sister’s questions. Her Mother[note: 16] also woke up and the Victim also told her that someone had touched her inappropriately. The Victim eventually did tell her Sister and Mother it was her co-worker who touched her but they did not know who the Accused was. As it was already very late at night, her Mother told her to go to sleep and they will discuss the matter the next day.

13     When asked by the learned deputy public prosecutor (“DPP”) why she only lodged the police report[note: 17] on 21 August 2021 when the incident took place on 18 August 2021, the Victim explained that she was afraid that people would not believe her as there were only the Accused and her in the car. She decided to lodge the police report as she did not want the Accused to get away with it. She said she was disgusted with herself over the incident and as a result, she did not even want her Mother to hug her and did not like people touching her. I observed that the Victim looked distressed and broke down again at this stage of her evidence in chief. [note: 18] The Victim also took two weeks’ leave from her work. Even when she was back at work after that, she became anxious at work whenever other people got close to her. However, she was relieved that the Accused was sent to the Restaurant’s other outlets.

14     In cross-examination, when counsel for the Accused, Mr Ramesh Tiwari (“Mr Tiwari”) asked the Victim why she did not open her eyes when the Accused touched her, the Victim said that the Accused probably thought that she had blacked out and that was why he touched her. She said she was afraid that the Accused may threaten her if she did so. It was also put to her that the Accused did not help her clean up after she had vomited in the car but she disagreed.

15     Mr Tiwari then applied to impeach the Victim’s credit based on the purported inconsistencies between her evidence in court and her statement to the police in D1. Having perused her statement in D1 and compared with her evidence in court, I allowed the application as the purported inconsistencies between D1 and her evidence in court were material.

The Impeachment Proceedings

16     The purported inconsistencies between the Victim’s evidence in court and D1 were as follows:

(a)     “Upon reaching (the Accused)’s car, I sat in front.”[note: 19]

17     Mr Tiwari pointed out to the Victim that unlike her evidence in court, she did not mention in D1 that she had wanted to sit at the back but the Accused asked her to sit in front. The Victim answered that she cannot remember.

(b)     “After wiping (the vomit), I closed my eyes and he continued to drive.”[note: 20]

18     Mr Tiwari pointed out to the Victim that unlike her evidence in court, she did not say in D1 that it was the Accused who asked her to close her eyes. The Victim explained that she did not think that it was an important detail.

(c)     “(I felt a hand going underneath my shirt and) going to my bra area.”[note: 21]

19     When asked by Mr Tiwari why she did not say in D1 that the Accused’s hand went under her bra, the Victim said she did not know.

(d)     “(The Accused’s hand) then go underneath my panty and touched a few seconds.”[note: 22]

20     Mr Tiwari asked the Victim why she did not say in D1 that the Accused touched her vagina. The Victim explained that the recording officer did not ask but she did demonstrate it to the recording officer. To her, underneath the panty was the vagina as her panty was the low waist type.

(e)     “At that time I was drunk”[note: 23]

21     Mr Tiwari pointed out to the Victim that she had insisted in her evidence in court that she was not drunk but merely tipsy. The Victim said she was tipsy but the recording officer typed the word “drunk” in D1.

(f)     “The incident lasted about a minute.”[note: 24]

22     When it was pointed out to her that she said in her evidence in court that the incident lasted about a few seconds, the Victim said that the recording officer asked her to give a rough estimate of the duration and that was what she did.

(g)     “(The Accused’s) hand got under my shirt, touched and pressed my breast a few times”[note: 25]

23     When asked why she did not say in D1 that the Accused’s hand went underneath her bra, the Victim said she told the recording officer that the same thing happened.

(h)     “Then followed by going to my pants area, to touch my panty”[note: 26]

24     When asked why she did not say in D1 that the Accused touched her vagina, the Victim said that she did tell the recording officer that he touched her vagina.

(i)     “It also lasted about a minute”[note: 27]

25     The Victim gave the same explanation that she was only asked to give an estimate of the time taken and she gave an estimate.

(j)     “However, I did not call for Police straight away because I was tired and also wanted to inform my workplace about it. My boss (PW1) told me he had spoke to (the Accused) about the matter however he deny it. I then decided to lodge a Police report.”(sic) [note: 28]

26     When it was pointed out to her that the reason she had given in D1 for lodging the police report was different from her evidence in court, namely, that she was afraid that people would not believe her, the Victim explained that it was her internal reason that she was afraid that people may not believe her. The reason given in D1 was also another reason she decided to lodge the police report.

27     In re-examination, the Victim explained that to her, being tipsy meant that one was a bit high but could still walk and talk, while being drunk meant that one cannot walk and talk, and cannot remember anything. She said that during the incident, she was conscious of what the Accused did to her as she was just tipsy, or “slightly drunk”.[note: 29]

(ii)   Evidence of the Sister

28     The Victim’s Sister[note: 30] was two years younger than the Victim. She was still awake at home when the Victim came home after midnight on 19 August 2021. She testified that when the Victim came home, she told her that someone touched her on her chest and private part area. When she asked the Victim who had touched her, the Victim started crying. The Victim told her Sister it was the Accused but told her that she would not know who the Accused was. The Sister then told the Victim to take a shower to calm down. Her Mother also woke up and the Sister told her what happened. The Mother was shocked but told the Sister not to worry. After the Victim had showered, she was told to sleep first and that they would talk about it in the morning.

29     The next morning, the Victim told her Mother and Sister what the Accused did to her in the car but in more details. Thereafter, in discussion with their Mother and father, the Victim said that she wanted to make a police report as it was a crime. The Sister said that she was not involved in the making of the police report.

30     After the incident, the Sister testified that the Victim would cover herself with a blanket even though it was not cold. She also did not dare to come home late at night or sit at the front passenger seat of a car.

(iii)   Evidence of the Mother

31     The Mother testified that she was awoken from her sleep when she heard the Victim crying. The Sister came into her room to tell her that someone had touched the Victim in a car and told her not to scold the Victim as the Victim was crying. After this, the Sister also cried. When the Sister and she went out from her room to the hall, the Victim was still crying and said “someone touched me and nobody will believe me”. The Mother then consoled the Victim and when asked who had touched her, the Victim said it was her colleague, the Accused. The Victim told her that the Accused had sent her home and that he had touched her while sending her home. The Victim said that the Manager knew that the Accused had sent her home. The Mother then called the Manager and told him what the Victim had alleged against the Accused. The Manager then said that he will call the Accused about the allegation. The Manager then called the Mother back and told her that the Accused said that he sent the Victim home out of good will and he was being accused of touching the Victim.

32     The Manager then spoke to the Victim and the Victim told the Manager that the Accused had touched her. When the Manager asked the Victim if she was sure that the Accused had touched her as it would be a criminal case, the Victim then cried very loud and refused to speak to the Manager anymore. The Mother then told the Manager to let the Victim sleep first and she will find out more from the Victim the next day.

33     The next day, the Victim told her and her husband (i.e. the Victim’s father) what happened in the car in more details. She then called the Manager to tell him that the Victim was not able to go to work and asked the Manager to take leave on her behalf. The Mother also told the Manager to tell the CEO of the Restaurant (“the CEO”) what happened. The following day, the CEO called the Mother and told her that he had spoken to the Accused about the incident and the Accused denied the allegation. However, the Accused told him that if this matter was not reported to the police, the Accused will apologise to the Victim. The Mother then told the CEO that if the Accused did not commit the offence, there was no need for him to apologise. It would be the Victim and her family’s decision whether to report to the police on this matter. The CEO agreed with the Mother’s position.

34     The Mother also testified that after the incident, the Victim would hide in her room and cover herself with blanket even though it was hot. She would also cry whenever they asked her about the incident. She also told the Victim that if she really wanted to make a police report, she must do so as soon as possible. The Victim said she wanted to as the incident did happen.

35     In cross-examination, when asked by Mr Tiwari if she knew all along that a delay in making a police report on the incident would be bad for the Victim’s case, the Mother said that she knew that they should not delay in making the police report, but explained that the Victim had social anxiety. She had tried very hard to ask the Victim to go to the police station to make the police report but every time she did so, the Victim would cry. Eventually she told the Victim that they cannot delay anymore.

(iv)   Evidence of the Manager

36     The Manager testified that on the day in question at about 10 pm, he had alcoholic drinks with the Victim, his friend and another colleague “M” at the Restaurant. The Accused was also present but he did not drink. He and his friend then left the Restaurant first. When he was leaving, he saw the Victim resting with her eyes closed. She told him she was okay when he asked her. He went for supper with his friend and returned home at about 2 a.m. the next morning.

37     He then received a phone call from the Victim’s Mother. She told him that the Victim had locked herself in the room and was crying. The Mother told the Manager that the Victim told her that she was molested by the person who sent her home. The Victim told her Mother that the Accused put his hand into her T-shirt and pants, and it happened a few times. The Manager said that he remembered this clearly as it was a serious matter and that he was shocked.

38     He then called the Accused and told him about what the Victim had alleged against him. The Accused told him nothing happened and said that he did not do “this type of thing”. He also said that he was being “a good Samaritan to send her home, and then she accused me of this type of thing”.[note: 31] He then called the Victim’s Mother back and told her that the Accused said that he did not do such thing. He then told the Mother to let the Victim rest and he will speak to the Victim again the following day.

39     He spoke to the Victim around noon time the next day. He told her to think carefully whether the Accused did touch her and she said “yes”. He then told the Victim to take care and rest, and that he would report the matter to his superior, the CEO. The Manager then duly informed the CEO of the matter. The Manager testified that the CEO had since passed away.

40     The Manager confirmed that the Victim took a short break of one to two weeks after the incident before she returned to work. The Restaurant’s management also transferred the Accused to another outlet of the Restaurant, so that the Victim and the Accused did not have to meet each other at work. The Manager also noted that the Victim was not her usual self when she went back to work and was only back to her bubbly self about a month later.

41     In cross-examination, the Manager agreed with Mr Tiwari that the Accused was shocked when told of the allegation by the Victim against him. The Manager also agreed with Mr Tiwari that the Accused was transferred to another outlet of the Restaurant to spearhead the start of that outlet which was new.

The Defence’s Case

The Evidence of the Accused

42     On 18 August 2021, the Accused said that he was working at the Restaurant. At closing time, their colleague “M” asked him to send the Victim home as she was “high” and intoxicated. He noticed that she had been drinking before this and she was louder than her usual self. He agreed to send the Victim home and he asked her for her address.

43     During the journey, the Victim suddenly wanted to vomit. Before he could pull over his car, the Victim vomited. He then pulled over his car. He then took some tissues, got out of the car to pass her the tissues. She then used the tissues to clean herself and passed the soiled tissues back to him. He threw them on the roadside and continued driving. He merely passed her the tissues and did not help her to clean herself. He did not touch her at all. When they reached the Victim’s home, he used both his hands to shake her shoulder to wake her up as she did not wake up when he told her that they had arrived at her home. The Accused denied that he had outraged the Victim’s modesty as alleged.

44     When the Manager called him to tell him about the Victim’s allegation, he told the Manager that no such thing happened and how could the Victim say such a thing. The Accused also denied telling the CEO that if the Accused agreed not to make a police report, he would apologise to the Victim.

Cross-examination

45     In cross-examination, the Accused said that he was employed by the Restaurant as an operations executive, a position that was akin to a manager. He was senior to the Victim at work, who was a service crew. Sometimes, he would give orders to the Victim to comply. He had known the Victim for about six months as at the date of the incident. He agreed that his relationship with the Victim was strictly professional, and he was not aware of any bad blood between the Victim and him. He maintained that he was only doing her a favour when he agreed to send her home in his car on the night of the incident. He had no explanation as to why the Victim would make such an allegation against him as it was not true. He was shocked by her allegation and at a loss as to why she did this. The Accused said he believed that the Victim was drunk that night, as she was not her usual self and louder than usual.

46     He said he could not remember if the Victim had approached the back seat of his car first but said that it was possible. He denied that he told her to stop texting or that he took her phone. Although the Accused said that he cannot remember if he saw the Victim closed her eyes and rested in the car, he said that it was possible that he had told her to close her eyes and rest. When the Victim vomited in his car, he thought that she was still drunk. However, he said that he did not help her to clean up as he did not want to touch her as she was in a drunken state. After the Victim had vomited in his car, he thought that she was asleep and not conscious. However, he denied that he had molested her and thought that he could get away with it. He also denied the learned DPP’s suggestion that he was prepared to apologise to the Victim if she did not make a police report on the matter, and that he did so because he had a guilty conscience.

The Prosecution’s Closing Submissions

47     In the prosecution’s closing submissions[note: 32], the prosecution submitted that the Victim was a credible witness, whose account of the incident bore a ring a truth. This was because her account was internally and externally consistent in material aspects and when considered against the totality of the evidence.[note: 33]

48     The prosecution submitted that the Victim’s evidence was reliable, because although she was tipsy, she was not drunk. She was conscious and aware of what was going on that night.[note: 34] She can be seen walking from the Restaurant on her own unaided in the CCTV footage from the Restaurant when she was leaving the Restaurant with the Accused and her colleague “M”.[note: 35] She also had no difficulty telling the Accused her address. After that, she was also able to message her Sister to tell her to help open the house door as she could not find her house key. She was also able to alert the Accused when she felt like vomiting and asked the Accused if he had a plastic bag.

The Victim’s Evidence was Internally Consistent

49     The prosecution further submitted that Victim had been internally consistent on the material facts of the allegation of the molest: who molested her and where, when and how she was molested. Although there were some inconsistencies, the prosecution submitted that they were not material and did not detract from the truth of the Victim’s account. They also showed that she was a candid witness.[note: 36]

50     On the inconsistency concerning the number of times the Accused had touched the Victim’s vagina, where the Victim had testified in her evidence in chief that the Accused had touched her vagina at least once (see [11] above) but had said in her police statement in D1 that the Accused had touched her vagina twice,[note: 37] the prosecution submitted that the Victim was being candid when she admitted during her evidence in chief that she could only remember distinctly that the Accused had touched her vagina at least once, and that she was not sure if this happened after the first or second time when the Accused touched her breast. The prosecution also pointed out that this only relates to the number of times she was touched on her vagina, and that the Victim was steadfast in her evidence that she was touched on her vagina. This frank disclosure, the prosecution submitted, despite knowing that it was inconsistent with her police statement in D1, bolstered the Victim’s credibility.[note: 38]

51     On the inconsistency on the duration of the molest referred to in [22] and [25] above, the prosecution stressed that these were only estimates and submitted that it was not reasonable to expect any victim of a sexual offence to recall the exact duration of such a traumatic event.[note: 39]

52     The prosecution further submitted that the Victim was also remarkably consistent on the secondary facts, such as:

(a)     The events leading up to the molest;

(b)     Why she did not react upon being molested; and

(c)     The events leading up to her lodging of the police report.[note: 40]

The Victim’s Account was Corroborated by Extrinsic Evidence

53     It was the prosecution’s submission that the Victim’s account was also corroborated by the following extrinsic evidence:

(a)     her demeanour upon reaching home in the immediate aftermath of the molest, when she started crying after telling her Sister that she was touched by the Accused;

(b)     the contemporaneous disclosure she made to her Sister and Mother that she was touched by the Accused; and

(c)     Her behaviour in the weeks after the incident, when she was always taking showers, hiding under her blanket and did not let her Mother hug her. She also took two weeks off work and felt anxious at work.[note: 41]

The Accused Failed to Raise Any Reasonable Doubt

54     The prosecution then submitted that the Accused’s evidence consisted of a bare denial of the charges. He also confirmed that there was no bad blood between the Victim and him, and no reason for her to make false allegation against him. He even did her a favour by sending her home. [note: 42]

55     The prosecution further submitted that his post-offence conduct, when he informed his CEO that he was prepared to apologise if the matter did not escalate to the police, was telling of his guilty conscience. Although the Accused had denied saying this, the prosecution submitted that the Mother’s evidence on this conversation with the CEO was consistent and unshaken even after cross-examination. Hence, this cast doubt on his denial of the charges. [note: 43]

The Defence’s Closing Submissions

The Victim’s Evidence was Not Unusually Convincing

56     In the defence’s closing submissions[note: 44], Mr Tiwari submitted that the evidence of the Victim was not unusually convincing and therefore the prosecution had failed to discharge its burden of proof, on the following grounds:

(a)     The Victim’s account of what happened from the time she entered the car was doubtful

57     Mr Tiwari submitted that it was highly unlikely that the Victim had initially wanted to sit at the back of the car but the Accused asked her to sit in front. This was because as the Accused was giving the Victim a lift home, it would be “more natural” for her to sit in front.[note: 45]

58     On the Victim’s allegations that it was the Accused who had asked her to put her bag at the back of the car and to hand her mobile phone to him when she was messaging her Sister using the mobile phone, Mr Tiwari submitted that there was simply no reason for the Victim to obediently follow the Accused’s requests. Mr Tiwari then made the point that she was saying all these to show that the Accused’s requests had facilitated the offences, although she claimed that she did not realise this at the material time.[note: 46]

(b)     When the Victim was touched by the Accused, she did not open her eyes at all

59     Mr Tiwari submitted that if it was true that the Victim was shocked by the Accused’s unexpected touch, her natural reaction would have been to instinctively open her eyes to see what was happening. If it was the Victim’s claim that the Accused had molested her because he felt that she was unconscious, the best thing for her to do would be to open her eyes “to show that she was not unconscious”. The fact that the Accused had touched her a second time meant that it would have been obvious to her that keeping her eyes closed “was not working” and yet she still did not open her eyes. Mr Tiwari then submitted that the Victim’s “description of the 2 incidents and her reaction (was) inconsistent with what she claimed he had done”.[note: 47]

(c)     The Victim’s inconsistent accounts of what had happened

60     First, Mr Tiwari pointed out that in her evidence in chief, the Victim merely said that she was “tired and sleepy” but did not say that she was “tipsy” in the car. Then in cross-examination, she said that she was “tipsy” but denied that she was drunk. However, in her statement in “D1”, she said that she was drunk. Mr Tiwari submitted that the Victim was playing down the fact that she was “actually drunk” in the car that night, as she had said so in her statement in “D1”. This was to make her evidence “more believable”.[note: 48]

61     Second, as regards the second time the Accused had allegedly touched her breast, the Victim said in her evidence in court that his hand went under her bra, but in the statement in “D1”, she said that his hand “went under her shirt and touched and pressed her breast a few times” and the Victim did not correct what she said in “D1”.[note: 49]

62     Third, on the duration of the incidents, the Victim had given different evidence, from a few seconds in her evidence in court to about a minute in “D1”.[note: 50]

63     Fourth, she had given different reasons for making the police report only a few days later. In court, she said that it was because she was afraid that no one would believe her. However, in “D1”, she said it was because she was tired and wanted to report it to her workplace first. She also said when the Accused denied molesting her to the CEO, she decided to lodge the police report.[note: 51]

64     Finally, she had failed to mention in “D1” her allegations in court that the Accused had asked her to sit in front, to put her bag at the back seat and for her mobile phone to be put away.[note: 52]

The Accused’s Evidence Remained Intact After Cross Examination

65     Mr Tiwari submitted that the Accused’s evidence remained consistent throughout the case and had not given conflicting version of what transpired on that day.[note: 53] The Accused was being candid when he said he could not think of any reason why the Victim would falsely accuse him of having molested her.[note: 54]

66     The defence then relied on the case of Khoo Kwoon Hain v PP [1995] 2 SLR (R) 591 at [71] [note: 55] to submit that “it is not for the defendant to prove that the complainant had some reason to falsely accuse him. This is a fact that would be wholly within the complainant’s knowledge and nobody else’s. The Defence therefore cannot be expected to prove this.”

67     Finally, Mr Tiwari submitted that the Victim’s evidence was not of the required quality for the prosecution to discharge its burden of proving the charges beyond reasonable doubt and urged the Court to acquit the Accused of both charges.[note: 56]

My Decision

The Victim’s Evidence Was Unusually Convincing

68     Having carefully considered and scrutinised the Victim’s evidence in court, I have had no difficulty in arriving at the conclusion that her evidence was unusually convincing. In my judgment, she had given evidence in a truthful and candid manner. In the course of her evidence, I also observed that she was still very much affected by her ordeal at the hands of the Accused. First, she looked distressed even for the purpose of identifying the Accused in court.[note: 57] Second, she broke down when she had to relive the incidents in the charges while testifying in court.[note: 58] The emotions were real and telling, and it was not contrived.

There Was Strong Corroborative Evidence of the Victim’s Evidence

69     In addition, there was strong corroborative evidence of the Victim’s evidence in the present case as follows:

(a)     Immediately after the incidents when she returned home, she broke down when she saw her Sister and told her that the Accused had touched her. She repeated this to her Mother when she was awoken by her crying (see her Sister’s and Mother’s evidence at [28] and [31] above respectively);

(b)     Both her Sister and Mother observed that the Victim was crying when she was narrating to them how the Accused had touched her;

(c)     In the days after the incident, the Victim would hide in her bedroom and cover herself with blanket, and would cry when asked about the incident. She also did not dare to come home late at night and did not dare to sit at the front passenger seat (see her Sister’s and Mother’s evidence at [30] and [34] above respectively);

(d)     She had to take one to two weeks’ break from her work after the incident; and

(e)     The Manager testified that the Victim told him the following morning after the incident that the Accused did touch her when he told her to think carefully about what she said (see the Manager’s evidence at [39] above). The Manager also testified that when the Victim came back to work after the one to two weeks’ break, she was not her usual self and was only back to her bubbly self about one month later (see the Manager’s evidence at [40] above).

70     The above were strong corroborative evidence that the Victim was very much traumatised by the incident. The above also show both internal and external consistencies in the Victim’s evidence in terms of how she was affected by the Accused’s actions and how her traumatic reactions were observed by her Sister, Mother and the Manager.

The Impeachment Proceedings

71     The alleged inconsistencies between the Victim’s evidence in court and her statement to the police in D1 as highlighted by the defence during the impeachment proceedings did not affect her credibility as a witness. In my judgment, these alleged inconsistencies, though material, pertain to minute details of the facts surrounding the incident. Given that D1 was a very brief two-page statement, it would not be reasonable to expect the Victim to go into every single minute detail of the facts surrounding the incident in the statement, unlike at the trial when she was answering questions by the learned DPP on the finer details of the incident. For example, the omission of the finer detail that it was the Accused who had asked her to sit at the front seat of the car in D1 as highlighted in [17] above was not unreasonable as the main fact was that eventually the Victim did end up sitting at the front seat of the car. Similarly, the discrepancy on the duration of each of the incidents as highlighted in [22] and [25] above did not affect the Victim’s credibility as a witness as the Victim was merely asked to estimate the duration during the statement recording process. The same reasoning can be applied to the other alleged inconsistencies highlighted during the impeachment proceedings.

72     Further, it would be pertinent to note that at the time of the offence, the Victim had just turned 20 years-old a few months earlier.[note: 59] Hence, she may not have the maturity or life experience to have the awareness that she needed to give as much details as possible in her statement to the police.

73     What was important to note was that her evidence on the general manner in which the Accused had outraged her modesty was consistent in both her evidence in court and D1. In fact, I would pause here to note that at the trial, more than two and a half years after the incident and upon recalling the incident for the purpose of the trial, the Victim had very fairly testified that she could only recall that the Accused had touched her vagina area underneath her panty at least once, as opposed to twice as stated in D1. This difference in the recollection on the number of times the Accused had touched her vagina was not surprising given that the Victim was tipsy at the time of the offence and her eyes were closed, and she was recalling details of a traumatic event which took place more than two and a half years ago. Further, the duration of each incident was very brief, only a few seconds.

Addressing the Defence’s Closing Submissions

74     On the defence’s submission reproduced at [57] and [58] above that the Victim’s account of what happened from time she entered the car was doubtful, there was nothing unusual or unnatural about the fact that the Victim had initially wanted to sit at the back of the car. This fact was at best neutral. Similarly, there was nothing surprising or unusual that eventually, the Victim acceded to the Accused’s request for her sit at the front passenger seat, put her bag at the back of the car and handed over her mobile phone. After all, the Accused was giving her a lift home and it would not be surprising if the Victim did not want to come across as being a difficult person by refusing the Accused’s requests on such minor matters.

75     It was the defence’s submissions reproduced at [59] above that if it was true that the Victim was shocked by the Accused’s unexpected touch, her natural reaction would have been to instinctively open her eyes to see what was happening. In my judgment, the Victim’s explanation that she did not immediately react after the Accused had touched her the first time or even the second time was a reasonable one. First, it was not surprising for a young girl who was not even 21 years-old yet to freeze, and not knowing what to do when she was suddenly being touched inappropriately by a senior colleague when they were alone in his car. Second, she had every reason to fear what worse things he might do to her if she were to react, since they were alone in the car driven by him in the middle of the night. Third, there can no prescribed manner as to how a female would or should react when she was being touched inappropriately without her consent.

76     On the question of whether the Victim was merely tipsy or drunk as highlighted in [60] above, as pointed out by the prosecution in its submissions highlighted in [48] above, the CCTV footage clearly shows that the Victim was able to walk from the Restaurant on her own unaided and she also had no difficulty telling the Accused her address. She was able to message her Sister to tell her to help open the house door as she could not find her house key. She was also able to alert the Accused when she felt like vomiting and asked the Accused if he had a plastic bag. In any event, the word “drunk” is not a term of art and it really depends on one’s interpretation or understanding of the word. As highlighted in [27] above, the Victim explained that to her, being tipsy meant that one was a bit high but could still walk and talk, while being drunk meant that one cannot walk and talk, and cannot remember anything.

77     On the other alleged inconsistencies in the Victim’s evidence highlighted by the defence as reproduced in [61] to [64] above, I have already explained in [71] to [73] above why I held that they did not affect her credibility as a witness.

The Accused’s Bare Denial Failed To Raise a Reasonable Doubt

78     As stated in [43] above, the Accused’s defence was one of bare denial. It is of course the correct position in law that it is not for an accused to prove that the complainant had some reason to falsely accuse him of molest. However, in the event that a complainant is able to put forth a credible case that the accused did molest her as alleged, and the accused is not suggesting that the complainant has any motive to falsely accuse him of the molest, then there is nothing to displace the inference that the accused has indeed committed the offence.

79     It is pertinent to note that Mr Tiwari did not put to the Victim that her distress and crying, as observed by her Sister and Mother immediately when she reached home, was false or staged. The inference to be drawn, therefore, was that her distress and crying were genuine, and arose because she was molested by the Accused.

80     Further, contrary to defence’s submission[note: 60] that the Accused had denied in his evidence of asking the Victim to sit at the front passenger seat when she had initially wanted to sit at the back seat, what the Accused had said in cross-examination was that he cannot remember if he did ask the Victim to sit in front when she had initially wanted to sit at the back, and that this could have happened.[note: 61] The Accused also agreed during cross-examination that after the Victim had vomited, he thought that she fell asleep because she was drunk and that she was “not conscious”.[note: 62] Hence, given the Victim’s unusually convincing evidence that the Accused had molested her in the manner as stated in the charges, the irresistible inference was that the Accused decided to take advantage of the Victim’s state of intoxication by first, asking her to sit at the front passenger seat when she had initially wanted to sit at the back seat of the car. Second, after the Victim had vomited, thinking that she was asleep because she was drunk, and not conscious, the Accused decided to molest the Victim in the manner as described by her, as the Accused thought that she would not be aware of what he had done to her.

81     In the circumstances, I did not find the Accused’s bare denial defence credible, and I rejected his defence.

82     Finally, I would add that I did not give any weight to the Mother’s evidence that the CEO of the Restaurant had told her that although the Accused had denied molesting the Victim, he was prepared to apologise to the Victim if the matter was not reported to the police. This was because the CEO was not called as a witness at the trial as he had passed away before the trial. This evidence was therefore hearsay evidence. Further, the Accused had denied saying this to the CEO.

Conclusion

83     Having carefully considered the Accused’s bare denial defence, when weighed against the Victim’s unusually convincing evidence and the strong corroborative evidence by the other prosecution witnesses, I found that the Accused had failed to raise a reasonable doubt in the prosecution’s case.

84     In conclusion, I was satisfied that the prosecution had proved both the charges against the Accused beyond reasonable doubt. I found the Accused guilty and convicted the Accused accordingly.

Antecedents

85     The Accused was a first-time offender.

Prosecution’s Submissions on Sentence

86     In submitting for a sentence of 15 to 18 months’ imprisonment and two to three strokes of the cane to be imposed on the Accused for each charge, the prosecution relied on the sentencing framework laid down in Kunasekaran s/o Kalimuthu Somasundara v PP [2018] 4 SLR 580 (“Kunasekaran”) and submitted that the present case fell between the high end of Band 2 and the low end of Band 3 of the sentencing framework, which states as follows:[note: 63]

Band

Description

Sentencing Range

1

This includes cases that do not present any, or at most one, of the offence-specific factors, and typically involves cases that involve a fleeting touch or no skin-to-skin contact, and no intrusion into the victim’s private parts.

Less than five months’ imprisonment

2

This includes cases where two or more offence-specific factors present themselves. The lower end of the band involves cases where the private parts of the victim are intruded, but there is no skin-to-skin contact. The higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts. Would also involve cases where there was the use of deception.

Five to 15 months’ imprisonment

3

This includes cases where numerous offence-specific factors present themselves, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim

15 to 24 months’ imprisonment



87     On the offence-specific factors, the prosecution submitted that there were the following aggravating factors present in this case, namely:[note: 64]

(i)     There was high degree of sexual exploitation. The Victim’s private parts were intruded upon in both charges. For the first charge, the Accused had squeezed her breast on two occasions. For the second charge, he stroked her vagina for a few seconds;

(ii)     The circumstances of the offending: the Accused took advantage of his junior colleague in the enclosed space of his car after having been entrusted to send the Victim home safely;

(iii)     Harm caused to the Victim: the Victim was so affected by the incidents that she would hide for days after the incident and covered herself with blanket, cried whenever she was asked about the incident. She also dared not come home late at night or sit at the front passenger seat. She also had to take one or two weeks off from work and was not her usual self at work, for about a month.

88     Given that the Accused had intruded upon the Victim’s private parts, the prosecution submitted for two to three strokes of the cane to be imposed on each charge, relying on Kunasekaran (at [50]).[note: 65]

89     As there were no offender-specific factors relevant to the present case, the prosecution submitted that there was no need to adjust the starting sentences. The prosecution further submitted that both sentences should run concurrently, for a global sentence of 15 to 18 months’ imprisonment and four to six strokes of the cane to be imposed.[note: 66]

Defence’s Mitigation and Submissions on Sentence

90     Mr Tiwari submitted, on the other hand, that the present case fell within the lower end of Band 2 of the sentencing framework in Kunasekaran for the following reasons:[note: 67]

(a)     Apart from skin-to-skin contact with the private parts of the Victim, there were no other aggravating circumstances;

(b)     The Victim was not incapacitated by drinks, but was merely afraid to resist or react;

(c)     The Accused was asked to drive the Victim home not because of his seniority at work but because he did not consume any alcohol that night; and

(d)     There was no assessment by psychiatrist or psychologist on the Victim on how she was affected by the incident.

91     Mr Tiwari also pointed out the Accused had an otherwise unblemished record and submitted for a sentence of six months’ imprisonment for both charges and for the sentences to run concurrently.[note: 68]

My Decision on Sentencing

92     In sentencing the Accused, I was guided by the sentencing framework in Kunasekaran. As there was skin-to-skin contact with the Victim’s private parts in both charges, I was not able to agree with Mr Tiwari’s submission that this would place the Accused’s case in the lower end of Band 2 in the sentencing framework. Band 2 of the framework, as reproduced in [86] above, clearly states that the “higher end of the band involves cases where there is skin-to-skin contact with the victim’s private parts”. Hence, I would place the Accused’s offences at the higher end of Band 2 in the framework. Caning would therefore also be appropriate.

93     I further agreed with the other offence-specific aggravating factors as submitted by the prosecution and reproduced in [87](ii) and (iii) above. Although I agreed with Mr Tiwari that the Accused was asked to send the Victim home in his car not because of his seniority at work to the Victim but because he did not consume any alcohol that night, the fact remains that there was a betrayal of trust in the present case. As a fellow colleague, the Victim trusted the Accused to send her home safely and not to molest her. Had the Accused been a total stranger, the Victim may not have agreed to let him drive her home.

94     As I have mentioned in [69] and [70] above, I was satisfied that the Victim was very much traumatised by what the Accused had done to her. The harm caused to her was significant. There was no requirement that there must be some medical evidence from a psychiatrist or psychologist, contrary to what Mr Tiwari had submitted[note: 69], that trauma or harm was caused to a victim before the court can take cognisance of the same, especially in a case where the victim had in fact testified at the trial on how she was affected by her ordeal, as in the present case. Hence, the trauma and harm caused to the Victim was another aggravating factor that I would take into consideration in sentencing.

95     On the other hand, I took into consideration that the touches on the Victim’s private parts were not prolonged in both charges and lasted only for a few seconds. Hence, I would place the Accused’s case just below the top end of Band 2 in the sentencing framework.

96     As for offender-specific factors, since the Accused was a first-time offender and had been convicted after trial, I agreed with the prosecution that there was no need to adjust the starting sentence.

97     In the circumstances, having considered all relevant sentencing factors as discussed above, I sentenced the Accused to ten months’ imprisonment and one stroke of the cane for the first charge, as the Accused had touched the Victim’s breast, skin-to-skin, not once but twice.

98     For the second charge, the Accused could have stopped after the commission of the offence in the first charge. However, he did not and went on to commit the offence in the second charge by touching the vagina of the Victim at least once, also skin-to-skin. Hence, I found it necessary to reflect this additional aggravating factor in the second charge and I sentenced the Accused to 12 months’ imprisonment, with two strokes of the cane.

99     As both offences took place in quick succession in the same transaction, I ordered both sentences to run concurrently, making it a global sentence of 12 months’ imprisonment and three strokes of the cane.

100    Dissatisfied with my judgment above, the Accused has appealed against the same. The Accused is currently released on bail pending this appeal.

[note: 1]P1

[note: 2]P8

[note: 3]P9

[note: 4]P10

[note: 5]P11

[note: 6]P3

[note: 7]P6 to P12

[note: 8]P2. A list of exhibits referred to in the ASOF was also enclosed as Annex A to the ASOF.

[note: 9]PW2.

[note: 10]P10.

[note: 11]P11.

[note: 12]PW1.

[note: 13]PW 3.

[note: 14]P5 (the screenshots of the relevant messages).

[note: 15]Notes of Evidence (NE), Day 1, page 49 ln 7 to 13.

[note: 16]PW4 (“Mother”)

[note: 17]P1

[note: 18]NE, Day 1, page 61 ln 25 to 29.

[note: 19]First underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 20]Second underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 21]Third underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 22]Fourth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 23]Fifth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 24]Sixth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 25]Seventh underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 26]Eighth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 27]Nineth underlined portion of D1 in the second paragraph of D1 on the first page.

[note: 28]Tenth underlined portion of D1 in the first paragraph of D1 on the second page.

[note: 29]NE, Day 2, page 48 ln 27 to page 49 ln 21.

[note: 30]PW 3.

[note: 31]NE, Day 1, page 13, ln 2 to 20.

[note: 32]PCS at Section B.

[note: 33]PCS at [27].

[note: 34]PCS at [28] to [31]

[note: 35]P4.

[note: 36]PCS at [33] to [42], [45] and [48].

[note: 37]D1, on the first page, bottom four lines.

[note: 38]PCS at [43] and [44].

[note: 39]PCS at [47].

[note: 40]PCS at [50] to [56].

[note: 41]PCS at [58] to [65].

[note: 42]PCS at [66] and [67].

[note: 43]PCS at [68].

[note: 44]DCS at [5].

[note: 45]DCS at [7] and [8].

[note: 46]DCS at [9] to [14].

[note: 47]DCS at [15] to [20].

[note: 48]DCS at [22] to 24].

[note: 49]DCS at [25] and [26].

[note: 50]DCS at [27].

[note: 51]DCS at [28] and [29].

[note: 52]DCS at [30].

[note: 53]DCS at [31] and [32].

[note: 54]DCS at [33].

[note: 55]DCS at Tab B.

[note: 56]DCS at [36] and [37].

[note: 57]NE, Day 1, page 28 ln 20 to page 29 ln 15.

[note: 58]NE, Day 1, page 49 ln 7 to 13, and page 61 ln 25 to 29.

[note: 59]The incident was on 19 August 2021 and the Victim’s date of birth was in May 2001 (see the charges)

[note: 60]DCS at [7].

[note: 61]NE, Day 4, page 5 ln 12 to 22.

[note: 62]NE, Day 4, page 12 ln 2 to 23.

[note: 63]Prosecution’s Submissions on Sentence(“PSS”) at [2] to [4].

[note: 64]PSS at [5] to [7].

[note: 65]PSS at [8].

[note: 66]PSS at [9] to [10].

[note: 67]The Accused’s Mitigation Plea (“D2”) at [2] to [6].

[note: 68]D2 at [7] to [9].

[note: 69]D2 at [6]

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Offences – Drink Driving","Criminal Procedure and Sentencing – Disqualification – Special Reasons"],"date":"2024-10-22","court":"District Court","case-number":"District Arrest Case No. 903904-2024","title":"Public Prosecutor v Wong Chee Kan","citation":"[2024] SGDC 274","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32371-SSP.xml","counsel":["Lim Yee Shuen (Criminal Investigation Department) for the Prosecution","Farhan Tyebally (AsiaLegal LLC) for the Defence."],"timestamp":"2024-10-28T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Wong Chee Kan

Public Prosecutor v Wong Chee Kan
[2024] SGDC 274

Case Number:District Arrest Case No. 903904-2024
Decision Date:22 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Lim Yee Shuen (Criminal Investigation Department) for the Prosecution; Farhan Tyebally (AsiaLegal LLC) for the Defence.
Parties: Public Prosecutor — Wong Chee Kan

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Offences – Drink Driving

Criminal Procedure and Sentencing – Disqualification – Special Reasons

22 October 2024

District Judge Shawn Ho:

Introduction

1       Mr Wong Chee Kan pleaded guilty to drink driving.

2       After drinking gin, he engaged a valet driver. On his way home, Mr Wong got into a dispute with the valet driver, who stopped along Eastwood Drive as he decided against continuing the journey.

3       Mr Wong drove his car to head back home along Upper Changi Road East as he “felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him” during their dispute.[note: 1]

4       While driving, Mr Wong lost his way. He approached the valet driver for assistance. A dispute broke out again between them. Mr Wong called the police.

5       The issue was whether there were special reasons.

6       All things considered, there were no special reasons. I set out my reasons.

7       Mr Wong was fined $2,000 in default 5 days’ imprisonment and disqualified from driving for 24 months. There was no appeal.

Charge

8       Mr Wong pleaded guilty to the following charge:

You,

NAME: WONG CHEE KAN (WANG ZHIQIN)

SEX/ AGE: MALE/ 49 YEARS OLD

NATIONALITY: SINGAPOREAN

are charged that you, on the 4th day of November 2023 at or before 4.01 a.m., along Eastwood Drive, Singapore, when driving a motor car, SKX1948C, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 51 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath and you have thereby committed an offence under Section 67(1)(b) and punishable under Section 67(1) read with Section 67(2)(a) of the Road Traffic Act 1961.[note: 2]

Statement of facts

9       The complainant is one Sergeant Quek May May, a Police Officer who is attached to Bedok Neighbourhood Police Centre.[note: 3]

10     The Accused is one Wong Chee Kan (Wang Zhiqin), Male, 48 years old, Chinese. He was the driver of the motor car, SKX1948C, at the time of incident.[note: 4]

11     The involved party is one Koh Tong Chuan, Male, 36 years old, Chinese. He was the valet driver engaged by the Accused at the time of incident.[note: 5]

12     On the 4th day of November 2023 at or about 4.01 a.m., the complainant attended to a reported police incident along Eastwood Drive. The complainant then interviewed the Accused who admitted to driving his motor car, SKX1948C, along Eastwood Drive.[note: 6]

13     The complainant communicated and observed that the Accused reeked of alcohol. A breathalyzer test was conducted on the Accused and the result showed “Fail”. The Accused was then arrested for the offence of driving under the influence of alcohol and he was escorted to Bedok Police Division for a Breath Analysing Device (BAD) Test.[note: 7]

14     The BAD test was conducted by Police Officer Taufiq on 4 November 2023 at about 5.26 a.m. at Bedok Police Division. The breath test revealed that the proportion of alcohol in the Accused’s breath was 51 microgrammes of alcohol in every 100 millilitres of breath. The prescribed limit is 35 microgrammes of alcohol per 100 millilitres of breath.[note: 8]

15     Investigations revealed that on the 4th day of November 2023 at about 12.00am, the Accused was at a bistro along the vicinity of Suntec City together with his friends. There, the Accused consumed about 2 to 3 glasses of gin. The Accused started drinking from 12.00am and stopped drinking later on the same day at about 2.00am. After drinking, the Accused had engaged a valet service with the involved party to drive his car and send him and one of his friends back to their places. While on his way home, the Accused got into a dispute with the involved party. The involved party then stopped along Eastwood Drive as he decided against continuing to send the Accused back home. As such, the Accused proceeded to drive his car to head back home to his place along Upper Changi Road East. The Accused then lost his way driving along Eastwood Drive and subsequently approached the involved party for assistance. A dispute then broke out again, and the complainant then attended to the case.[note: 9]

16     By virtue of the foregoing, the Accused had committed the offence of drink driving (exceeding the prescribed limit) under s 67(1)(b) and punishable under s 67(1) read with s 67(2)(a) of the Road Traffic Act 1961.[note: 10]

Prescribed punishment

17     The prescribed punishment for s 67(1) of the Road Traffic Act 1961 (“the Act”) (first offender for drink driving) is:

(a)     a fine of not less than $2,000 and not more than $10,000 or imprisonment for a term not exceeding 12 months or to both, and

(b)     a driving disqualification for a period of not less than 2 years.

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751])

18     The two components of the overall sentence generally are not to be regarded as mutually compensatory. Hence, an increase in the fine or custodial sentence should not be taken to mandate the imposition of a reduced disqualification period than would otherwise have been ordered: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

19     While the different types of punishment are not fungible, there is a positive correlation between the length of the imprisonment term and/or quantum of the fine imposed and the period of the disqualification ordered. This direct relationship arises from the overlapping considerations of harm and culpability underlying the determination of the length of imprisonment or quantum of fine, and the length of the disqualification period: Chen Song v Public Prosecutor [2024] SGHC 129 at [141].

20     A disqualification order melds three sentencing objectives: punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13]-[14].

21     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

22     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle: Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60].

Prosecution’s submissions on sentence

23     The Prosecution asked for a fine of $2,500 and driving disqualification of 24 months.

24     There were no special reasons.

Mitigation plea

25     The Defence asked for a fine of $2,500 and driving disqualification of less than 24 months.

26     There were special reasons.

Sentencing

The Law

(1)   Legislative history of s 67 of the Road Traffic Act

27     The offence under s 67(1)(b) of the Act was enacted on 10 May 1996, following the passing of the Road Traffic (Amendment) Act 1996 (No. 11 of 1996) (“the 1996 Amendment Act”).

28     The 1996 Amendment Act effected two changes that are relevant for present purposes. First, it repealed s 70 of the Road Traffic Act (Cap 276, 1994 Rev Ed). Second, it re-enacted s 67 of the Act.

(See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

29     The present iteration of the offence under s 67 of the Act was enacted on 1 November 2019, following the passing of the Road Traffic (Amendment) Act 2019 (Act 27 of 2019) (the “2019 Amendment Act”). The reforms introduced through the 2019 Amendment Act were aimed at providing stronger deterrence against irresponsible driving and to tighten the regulatory regime against irresponsible driving: Singapore Parliamentary Debates, Official Report (8 July 2019) vol 94 (Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993 at [26]).

30     Specifically, in relation to the offence of drink driving, the Second Minister for Home Affairs, Mrs Josephine Teo explained as follows:

… Drivers who are drunk or drug-impaired show a blatant disregard for the safety of other road users. … Currently, such motorists typically face the same maximum penalties as other motorists who cause accidents. The judge may take into consideration that the offender was driving under influence during the sentencing itself. But it would be clearer to have our intentions codified in law. In fact, our intention is for offenders driving under influence to face stiffer penalties to signal the aggravated seriousness of their actions.

…

… during the public engagement process, respondents felt that even a standalone driving under influence offence where no accident is caused, should attract higher penalties to better reflect its gravity.

We agree with this view. The consumption of alcohol or drugs already makes a motorist a danger to other road users. Section 67 in Clause 17 of the Bill will raise the penalties to about double the current levels. We will also raise the existing minimum DQ period to two years for first-time driving under influence offenders and five years for second-time driving under influence offenders. A lifelong disqualification will be imposed on third-time driving under influence offenders. [emphasis added]

(2)   Driving disqualification order

31     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

32     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

33     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

34     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Road Traffic Act.

Decision on sentence

35     Drink driving is irresponsible. A motorcar in the hands of a drunk driver is a potentially devastating weapon writ large – and needlessly so: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

36     For drink driving, the applicable case is Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993.

Framework in Rafael Voltaire Alzate v Public Prosecutor

37     The sentencing ranges are set out in the Rafael Voltaire Alzate at [30]-[31]:

Level of alcohol (µg per 100ml of breath)

Range of fines

Range of disqualification

36-54

$2,000-$4,000

24-30 months

55-69

$4,000-$6,000

30-36 months

70-89

$6,000-$8,000

36-48 months

≥90

$8,000-$10,000

48-60 months



38     This framework only applies where there is no harm to person or property (Rafael Voltaire Alzate at [32]).

39     This framework provides only neutral starting points based on the relative seriousness of the offence and considering only the level of alcohol in the offender’s body. Regard should still be had to any aggravating or mitigating circumstances (see Edwin s/o Suse Nathen at [22]), and the former, if they exist, could result in the custodial threshold being crossed (Rafael Voltaire Alzate at [33]).

40     Here, the applicable sentencing range is a fine of $2,000 to $4,000 and a driving disqualification of 24 to 30 months.

41      Antecedents. Mr Wong’s driving record was not unblemished.

42     He had driving-related compounded offences for speeding, parking and not conforming to the red light signal. An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

43     Given that they are fairly dated, I placed little weight on his compounded offences.

44      Guilty plea. I gave due weight to Mr Wong’s guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

45     That said, the evidence against Mr Wong was overwhelming (e.g. Breath Analysing Device Test result) and lends itself to the conclusion that he had little choice but to plead guilty: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 at [71] and [73], and Public Prosecutor v BDB [2017] SGCA 69 at [74].

46      Cooperation with the authorities. I gave due weight to Mr Wong’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

No special reasons

(1)   The law

47     Under s 3(1) of the Act, an offender would be disqualified from driving unless he shows “special reasons”.

48     In this connection, the two-stage framework for “special reasons” is as follows:

(a)     First Stage: Show special reasons, viz. reasons relating to the facts or circumstances of an offence and not to the offender herself; and

(b)     Second Stage: Even if special reasons are established, the court will consider whether the discretion not to disqualify must be exercised in favour of the offender.

49     Under the two-stage framework, the first stage is offence-specific (not offender-specific). When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the court’s satisfaction: Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 at [5].

50     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the court’s discretion not to disqualify can only be made in very exceptional circumstances: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [25] (see also Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [9]-[11]).

(i)   First Stage

51     What are “special reasons” not to impose a driving disqualification? The special reasons have to be reasons relating to the facts or circumstances of an offence and not to the offender himself – this would be the clearest means of giving effect to Parliament’s intention: M V Balakrishnan v Public Prosecutor [1998] 2 SLR(R) 846 at [9], Muhammad Faizal bin Rahim v Public Prosecutor [2012] 1 SLR 116 at [41] and Rafael Voltaire Alzate at [38].

52     In other words, a special reason is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment: Whittall v Kirby [1947] 1 KB 194 at 201, as endorsed by Muhammad Faizal bin Rahim at [30].

53     Offender-specific factors, such as the fact that the defendant is of a good character or has a good driving record, cannot be accepted as special reasons: Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (30th Ed, 2021, General Editor: Kevin McCormac) at [21-10]. Circumstances peculiar to the offender do not go towards reducing his moral culpability; they are essentially extrinsic facts about the offender which are unrelated to the offence but are produced to elicit sympathy from the court. These circumstances are morally distinguishable from circumstances peculiar to the offence: Muhammad Faizal bin Rahim at [43].

54     Even if an offender requires his driving licence for his livelihood, this would not constitute a special reason (see also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751]).

55     This is because in the Malaysian Criminal Appeal Court case of Public Prosecutor v Hiew Chin Fong [1988] 1 MLJ 467 – which was endorsed in Chua Chye Tiong v Public Prosecutor [2004] 1 SLR(R) 22 at [61] and [62] – a 12-month disqualification period was imposed on the offender despite the fact that his livelihood depended on him having a driving licence.

56     The Criminal Appeal Court in Public Prosecutor v Hiew Chin Fong laid down several statements of law on what should not be considered special reasons:

(a)     Financial hardship to the offender;

(b)     The offender knew no other means of earning his livelihood;

(c)     That the effect of the disqualification must necessarily and consequently deprive the offender of his livelihood or occupation; and

(d)     That the offender was a poor man and would have difficulty to get to his work.

57     Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive, and that he had explored every reasonable alternative before driving: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [17], affirmed in Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [13].

58     When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the court’s satisfaction: Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 at [5]. The onus lies on an accused to raise special reasons for the court’s consideration, if such reasons exist: Chue Woon Wai v Public Prosecutor [1996] 1 SLR(R) 725 at [13], Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [12] and Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [12].

(See also Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (30th Ed, 2021, General Editor: Kevin McCormac) at [21-62])

59      Cheong Wai Keong v Public Prosecutor [2005] SGHC 126 stands for the proposition that the shortness of distance travelled cannot in itself be a “special reason” (Rafael Voltaire Alzate at [41]). A court should be able to have regard to the distance travelled as part of its overall analysis (Rafael Voltaire Alzate at [42]).

60     For completeness, the High Court in Lee Shin Nan v Public Prosecutor [2023] SGHC 354 at [79] stated that the unifying principle to be distilled with respect to s 67(2A) of the Act is that special reasons will generally be found only if the court is satisfied that the offender drove in circumstances that reasonably suggest:

(a)     it was necessary to do so in order to avoid other likely and serious harm or danger; and

(b)     there was no reasonable alternative way to achieve this end.

(ii)   Second Stage

61     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified. In this regard, there must be a separate process of considering whether the discretion must be exercised in favour of the offender: Sivakumar s/o Rajoo at [22]. The limited discretion not to disqualify can only be made in very exceptional circumstances, having regard to the special circumstances as well as to the whole of the circumstances surrounding the commission of the offence, including the manner in which the offender drove and the alcohol content in the offender’s body: Sivakumar s/o Rajoo at [25].

62     Pulling the various strands together, the test for special reasons is stringent and is only satisfied in very exceptional circumstances (see also Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303 at [9]-[11]).

63     The Act is construed strictly in order to preserve its policy of protecting road users: Chua Chye Tiong v Public Prosecutor [2004] 1 SLR (R) 22 at [53]. A less restrictive approach would negate the legislative stipulation of mandatory disqualification and defeat its underlying objectives: Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [8]. Widening the special reasons exception would encourage frivolous defences: Muhammad Faizal bin Rahim at [41].

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3702], [3751] and [3752])

(2)   Application to the facts

64     The special reasons have to be reasons relating to the facts or circumstances of an offence and not to the offender himself. In other words, a special reason is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment.

65     In the present case, the Defence argued that:

(a)     As a real estate agent, Mr Wong needed his driving licence for his work, including travelling to various properties to conduct viewings.[note: 11]

(b)     Additionally, networking and building relationships with various individuals are integral to his real estate agent role, often necessitating meetings over drinks with friends and/or prospective clients.[note: 12]

(c)     After drinking alcohol, Mr Wong would hire a valet driver.[note: 13] In 2023, Mr Wong spent an estimated $5,927 on valet services from M/s DUH Drive U Home Valet.[note: 14]

(d)     On 4 November 2023, Mr Wong engaged a valet driver.[note: 15] Mr Wong provided his home address in Upper Changi Road East.[note: 16] However, the valet driver drove to an incorrect location at Eastwood Drive.[note: 17] Mr Wong and the valet driver had an argument.[note: 18]

(e)     The valet driver's aggressive behaviour escalated to the point that Mr Wong felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him.[note: 19]

(f)     Mr Wong drove off.[note: 20] He drove within a landed enclave at about 4 a.m.[note: 21] He had only driven for approximately 480m.[note: 22]

(g)     After parking his car, he pleaded with the valet driver to send him home.[note: 23] This request was met with increased aggression — the valet driver not only verbally berated Mr Wong but also slapped him across the face.[note: 24]

(h)     Mr Wong quickly distanced himself from the valet driver and called the police to report the assault/ battery.[note: 25]

(i)     The police arrived at the scene. Mr Wong informed them of the assault by the valet driver. The valet driver told the police that Mr Wong had driven his vehicle while intoxicated.[note: 26]

66     Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive, and that he had explored every reasonable alternative before driving.

67     Here, the Defence claimed that Mr Wong had driven away as he had “felt that there was an imminent apprehension of danger to his personal safety as the valet driver threatened to physically assault him” during their argument, which amounted to a special reason.[note: 27]

68     After driving away, Mr Wong had approached the valet driver for assistance after losing his way,[note: 28] which militated against Mr Wong feeling physically threatened by the valet driver in the first place.

69     Apart from driving, there were other alternatives open to Mr Wong — including distancing himself from the valet driver on foot, locking the car doors, and calling the police. In fact, after being “verbally berated (and) also slapped … across the face”,[note: 29] Mr Wong “quickly distanced himself from the valet driver and called the police to report the assault / battery”.[note: 30]

70     While Mr Wong had argued that his driving licence was required for his livelihood as a real estate agent, this would not constitute a special reason: Public Prosecutor v Hiew Chin Fong, which was endorsed in Chua Chye Tiong v Public Prosecutor at [61] and [62].

71     Insofar as the Defence was arguing that Mr Wong had driven a short distance, even taking the Defence’s case at its highest, a distance of 480 metres — almost ten Olympic-sized swimming pools — was not short. Moreover, Mr Wong had intended to drive home along Upper Changi Road East from Eastwood Drive.[note: 31] In other words, if he had not been lost,[note: 32] Mr Wong would have driven a distance of about 2.6 km.

72     Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the court’s discretion not to disqualify can only be made in very exceptional circumstances. Here, Mr Wong’s alcohol level of 51 microgrammes of alcohol in every 100 millilitres of breath[note: 33] was at the higher end of the relevant band in Rafael Voltaire Alzate.

Conclusion

73     For the above reasons, Mr Wong was fined $2,000 in default 5 days’ imprisonment and disqualified from driving for 24 months.

74     There were no special reasons.

75     I am grateful for the hard work and submissions of both sides.

[note: 1]Mitigation Plea at [10] and [13].

[note: 2]DAC 903904-2024.

[note: 3]SOF at [1].

[note: 4]SOF at [2].

[note: 5]SOF at [3].

[note: 6]SOF at [4].

[note: 7]SOF at [5].

[note: 8]SOF at [6].

[note: 9]SOF at [7].

[note: 10]SOF at [8].

[note: 11]Mitigation Plea at [5].

[note: 12]Mitigation Plea at [6].

[note: 13]Mitigation Plea at [7]-[8].

[note: 14]Mitigation Plea at [9].

[note: 15]Mitigation Plea at [11].

[note: 16]Mitigation Plea at [11].

[note: 17]Mitigation Plea at [13].

[note: 18]Mitigation Plea at [13].

[note: 19]Mitigation Plea at [13] and [25].

[note: 20]Mitigation Plea at [15].

[note: 21]Mitigation Plea at [24].

[note: 22]Mitigation Plea at [15], [21] and [25].

[note: 23]Mitigation Plea at [16].

[note: 24]Mitigation Plea at [16].

[note: 25]Mitigation Plea at [17].

[note: 26]Mitigation Plea at [18].

[note: 27]Mitigation Plea at [10] and [13].

[note: 28]SOF at [7].

[note: 29]Mitigation Plea at [16].

[note: 30]Mitigation Plea at [17].

[note: 31]SOF at [7].

[note: 32]SOF at [7].

[note: 33]SOF at [6].

"},{"tags":["Criminal Law – Offences – Abetment of suicide","Criminal Law – Offences – Obstructing the course of justice"],"date":"2024-10-18","court":"District Court","case-number":"District Arrest Case No. 921296 of 2021 & Ors","title":"Public Prosecutor v Cher Sheue Pin Alverna","citation":"[2024] SGDC 235","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32349-SSP.xml","counsel":["Marcus Foo and Cheronne Lim (Attorney-General's Chambers) for the Prosecution","Peter Ong and Marcus Lim (Peter Ong Law Corporation) for the Defence."],"timestamp":"2024-10-25T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Cher Sheue Pin Alverna

Public Prosecutor v Cher Sheue Pin Alverna
[2024] SGDC 235

Case Number:District Arrest Case No. 921296 of 2021 & Ors
Decision Date:18 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Marcus Foo and Cheronne Lim (Attorney-General's Chambers) for the Prosecution; Peter Ong and Marcus Lim (Peter Ong Law Corporation) for the Defence.
Parties: Public Prosecutor — Cher Sheue Pin Alverna

Criminal Law – Offences – Abetment of suicide

Criminal Law – Offences – Obstructing the course of justice

18 October 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mdm Cher Sheue Pin Alverna, had been convicted after trial of two charges of abetment by intentionally aiding suicide and obstructing the course of justice.

2       This judgment deals with the sentencing submissions and mitigation plea.

3       All things considered, the Accused was sentenced to 74 months’ imprisonment.

4       I set out my reasons.

The parties’ position on sentence

Prosecution’s submissions on sentence

5       The Prosecution sought the following sentence:[note: 1]

DAC No.

Sentence

Status

DAC 921296 2021

s 306 Penal Code

Upper half of the sentencing range for s 306

Consecutive

DAC 920605 2021

s 204A Penal Code

1 to 1.5 years

Consecutive



6       For the s 306 offence, the Accused’s culpability was not low:

(a)     First, while acts of intentional aiding can take many forms, the Accused’s culpability can be seen by her actions of handling the Tank and IKEA bag at the material time. This in turn displayed intimate participation in his suicide efforts.[note: 2]

(b)     Second, the Accused’s culpability must be understood against the backdrop of her knowledge, role, and interactions with Mr Wee leading up to 16 May 2020. She was no passive onlooker insofar as Mr Wee’s suicide was concerned:

(i)       Prior to 16 May 2020, the Accused was significantly involved in his suicide plans to the point that she participated in a “trial run”. She told him to “die handsome”.[note: 3]

(ii)       The Accused’s actions of enlisting a doctor so that Mr Wee’s death could appear natural would also have encouraged him to take further steps in pursuing his suicide plans (ASOF at [30]).[note: 4]

(iii)       The Accused’s willingness and agreement to dispose of evidence of suicide on Mr Wee’s behalf goaded him to press on with his suicide plans.[note: 5]

(iv)       The Accused agreed to oversee Mr Wee’s funeral arrangements (ASOF at [27]-[29]). She even wrote a eulogy for Mr Wee (ASOF at [35]).[note: 6]

(c)     Third, when Mr Wee told the Accused that he was “commencing” his suicide plan on 16 May 2020, the Accused did not dissuade him. Instead, the Accused replied that she would see him “in another world”, i.e. “the afterlife after he passes away” (see also the ASOF at [42]).[note: 7]

(d)     Fourth, it was not the Accused’s case – given the defence of a bare denial that she ran at trial – that she assisted Mr Wee’s suicide out of some altruistic motivations or compassion that can be said to attenuate her culpability in any way. The Defence did not lead any evidence or alternative case in this regard.[note: 8]

7       In Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393, the offender was convicted after trial of an offence under s 306 Penal Code (Cap 185, 1985 Rev Ed) and sentenced to 8 years’ imprisonment.[note: 9]

8       There was some limitation in relying on Lim Tee Hian as a precedent. The iteration of the offence that the offender in Lim Tee Hian was convicted of was different from the present provision. Unlike its predecessor, the present provision also contemplated a situation where the individual abetted attempts suicide.[note: 10]

9       The upshot of this was that greater — if not overriding — significance would have been placed on an offender’s culpability when sentencing under the previous iteration of the offence under s 306 of the Penal Code. Indeed, that overarching emphasis on the offender’s culpability can be seen from the High Court’s grounds of decision in Lim Tee Hian. That may not be warranted to the same extent, or necessarily appropriate, in the present situation, where the consequences flowing from an abettor’s actions also acquires prominence in the sentencing equation.[note: 11]

10     For the s 204A offence, applying the Court of Appeal case of Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847:

(a)     The predicate offence is extremely serious – this concerns the Accused’s abetment and involvement in Mr Wee’s suicide. There was a degree of self-interest insofar as the Accused was also attempting to conceal her criminal liability. The maximum punishment of 10 years’ imprisonment underscored the severity of the offence.[note: 12]

(b)     The degree of persistence, premeditation, and sophistication was demonstrated by the following:[note: 13]

(i)       Prior to 16 May 2020, there were significant discussions between the Accused and Mr Wee as to how to get rid of the evidence.[note: 14]

(ii)       From the text messages, the Accused made material suggestions to improve Mr Wee’s plans, such as the fact that she should be the first one at the scene to find his body. That proactiveness underscored her complicity.[note: 15]

(iii)       The Accused undertook considerable efforts to bring these plans about. She instructed a third party, Mr Cheo,[note: 16] to remove evidence (the Tank). The Accused herself disposed of the IKEA bag, which was why it could not be retrieved by investigation authorities. The Accused also lied to SSSgt Munira[note: 17] to conceal the Mr Wee’s suicide.[note: 18]

Mitigation plea

11     The Defence sought a global sentence of not more than 1 year’s imprisonment because:[note: 19]

(a)     The Accused is a first-time offender with no previous antecedent.

(b)     She is of a good character.

(c)     A criminal record has tainted her career, and a custodial sentence will destroy her career and family.

(d)     She is genuinely remorseful.

(e)     She has fully cooperated with the authorities.

(f)     There is no likelihood of recidivism in the present case.

(g)     Mr Wee in fact had planned his own suicide.

12     The Accused’s daughters, aged 10 and 17, are entirely dependent on her for their upbringing, education, and emotional support. Her elderly parents, who require constant care, are also reliant on her. A custodial sentence would severely impact not only her life but also the well-being of her family.[note: 20]

13     While the court has convicted the Accused, she had no intention of abetting Mr Wee’s suicide. The series of incidents that unfolded, as shown through the facts adduced during the trial, reflect her attempts to dissuade Mr Wee from taking his own life, and the court may have overlooked or misconstrued some key aspects.[note: 21]

14     It was crucial to highlight that:

(a)      Lack of criminal intent. The Accused did not intend to encourage or facilitate Mr Wee’s death. Her involvement stemmed from emotional manipulation by Mr Wee and a misguided sense of duty to honour his last wishes.[note: 22]

(b)      Efforts to dissuade Mr Wee. The Accused repeatedly tried to dissuade Mr Wee from committing suicide by offering alternative solutions, including financial help and employment opportunities. She even suggested he seek medical help, further demonstrating her intent to save him.[note: 23]

(c)      Mr Wee’s determination. Mr Wee’s determination to end his life was evident from his own preparations, including purchasing the nitrogen gas tank and orchestrating a detailed plan. The Accused was not the driving force behind these decisions.[note: 24]

(d)      Emotional turmoil and confusion. The Accused’s state of mind during the incident must be considered. Her actions were not rational but influenced by the overwhelming emotional stress and confusion she experienced upon finding Mr Wee in a critical state.[note: 25]

(e)      Her cooperation and honesty. When confronted by the authorities, the Accused admitted to her actions without hesitation, showing her willingness to cooperate despite her mental state at the time.[note: 26]

15     The Accused pleaded for leniency because the court opted not to believe, that as all scientific evidence shows memory does lapse over time. She felt aggrieved that the court chose instead to attribute to her a perfect and accurate memory upon which the conviction is built. She rightly or wrongly believed that this was a factor justifying leniency and the Defence Counsel were thus instructed to so plead.[note: 27]

16     The need for retributive justice was extremely low in the present case.[note: 28] The offence was not the sort of offence which incited public outrage.[note: 29]

17     The principle of prevention applied only in very serious cases of dangerous or persistent offenders. Clearly, the Accused did not fall into this category of criminals.[note: 30]

18     Even if the Court was minded to impose a deterrent sentence, a deterrent sentence need not take the form of a long custodial sentence.[note: 31]

19     Although the principle of rehabilitation was highly persuasive and should apply in the present case, nonetheless, the facts of this case suggest that there was no further need to rehabilitate the Accused. She had been remanded in Changi Prison for 330 days. After she was released on bail, she continued to keep a clean record and has shown that she has learnt her lesson and will not reoffend. Rehabilitation has been achieved in this case.[note: 32]

20     The offences that the Accused was convicted of were not for profit or some evil motive.[note: 33] She was not of wanton greed to profit by fraud on insurance companies and which involved the grievous loss of an innocent life but this case was the other way round. [note: 34]

My decision on sentence

Prescribed punishment

21     The prescribed punishment for s 306 of the Penal Code is imprisonment for a term which may extend to 10 years, and the offender shall also be liable to fine.

22     The prescribed punishment for s 204A of the Penal Code is imprisonment for a term which may extend to 7 years, or with fine, or with both.

23     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

24     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

25      Claiming Trial. Although claiming trial is not an aggravating factor, no discount would be given to offenders who elect to claim trial: Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [37] (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [20.147]).

26      Antecedents. The Accused had antecedents in 2011 for failing to comply with the condition of the work permit under s 22(1)(A) r/w s 22(1)(I) r/w s 23(1) of the Employment of Foreign Manpower Act (Cap 91A). No weight was placed on these antecedents as they were fairly dated and unrelated to the present case.

27      Personal Circumstances. The Accused alluded to the fact that as she is the sole bread-winner and a single parent, her incarceration would bring hardship to her family, especially her two daughters aged 10 and 17.[note: 35]

28     However, personal circumstances such as financial difficulties and hardship caused to family by their incarceration have no mitigating value save in the most exceptional cases: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [10]-[11] and Chua Ya Zi Sandy v Public Prosecutor [2021] SGHC 204 at [11]-[14].

29     Hardship to the family is a natural consequence when a family’s breadwinner decides to commit an offence and is imprisoned for it: Kannan s/o Birasenggam v Public Prosecutor [2021] SGCA 15 at [10].

30     In the present case, I saw no cogent reasons to consider her personal financial and family circumstances as valid mitigating factors.

31      Cooperation with the Authorities. I gave due weight to the Accused’s cooperation with the authorities.

32      Proportionality Principle. I kept in mind the proportionality principle in sentencing (Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [30]). Under the proportionality principle, the sentence to be imposed must not only bear a reasonable proportion to the maximum prescribed penalty, but also to the gravity of the offence committed (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [06.091]-[06.093]).

Section 306 of the Penal Code

33      Harm. Harm is a measure of the injury caused to society by the commission of the offence (Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [41]).

34     In the present case, Mr Wee died. Death is generally the most serious consequence of any offence: Public Prosecutor v BDB [2018] 1 SLR 127 at [60].

35     I was mindful that in assessing the level of harm or potential harm, the sentencing court should be careful not to double-count any factors which may already have been taken into account in assessing the level of culpability: Ye Lin Myint v Public Prosecutor [2019] 5 SLR 1005 at [58] (see also Andrew Ashworth, Sentencing and Criminal Justice (6th Ed, 2015, Cambridge University Press) at [4.3] and [4.5]).

36      Culpability. Culpability is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act: Public Prosecutor v Aw Tai Hock [2017] 5 SLR 1141 at [35] (see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th Ed, 2015) at [4.5]).

37     The Accused’s culpability can be seen by her handling of the nitrogen tank and IKEA bag at the material time.[note: 36]

(1)   Accused was involved in Mr Wee’s suicide plans

38     I agreed with the Prosecution that the Accused was involved in Mr Wee’s suicide plans. She referred him to Dr Kwan[note: 37] so that his death could be passed off as arising from natural causes. She joined Mr Wee in what she called a “trial run” of his plans to commit suicide. [note: 38] And she agreed to oversee Mr Wee’s funeral arrangements and penned him a eulogy.[note: 39]

(2)   Beneficiary of Life Insurance Policy

39     As of 16 May 2020, the Accused was a beneficiary with a 20% share of a S$1 million life insurance policy purchased by Mr Wee.[note: 40]

40     According to the Defence:

(a)     In return for Mr Wee’s kindness, the Accused took out a NTUC Income term insurance policy for $200,000 with Mr Wee nominated as one of the beneficiaries. [note: 41] This term insurance policy was discontinued later as the Accused was tight financially and “she thought that (Mr Wee) did not continue with his policy so (she) also did not want to continue”.[note: 42]

(b)     The Accused told Mr Wee that she did not need his money.[note: 43]

(c)     The Accused had testified that she was financially independent, raising her 2 children independently for 17 years without any credit card debt or personal loan, and that she had never taken a cent from her ex-husband.[note: 44]

(d)     Mr Wee told the Accused that if he died less than 1 year after the insurance policy had been taken out, she would not receive any money.[note: 45]

(e)     If Mr Wee had intended his insurance policy nominees (including the Accused) to receive the insurance payout upon his death, he could have postponed his suicide by a mere 11 days (from 16 May 2020 to 27 May 2020).[note: 46]

41     The Accused did not receive any payout from the life insurance policy.

42     In my judgment, given that the Accused did not ask Mr Wee to postpone his suicide by 11 days (in which case she would be eligible to receive the insurance payout), the fact that the Accused knew that she was a beneficiary of Mr Wee’s insurance policy did not animate her acts of intentionally aiding his suicide. In other words, her knowing that she was a beneficiary of his insurance policy should be given no weight in sentencing.

43     My view was fortified by the fact that the Accused had offered to sell her apartment and pass the sales proceeds of between $100,000 to $150,000 to Mr Wee.[note: 47] Mr Wee had declined her offer of goodwill.[note: 48] The Accused also transferred $8,000 to Mr Wee,[note: 49] loaned him $2,000 and offered Mr Wee a job in her funeral business. [note: 50]

(3)   Public Prosecutor v Lim Tee Hian

44     In Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393, the High Court stated that the offence of abetment of suicide could range from one committed under circumstances where the abettor acted out of altruism or mercy to relieve pain suffered by a terminally-ill principal whom he loves to one committed for profit or some evil motive (at [75]).

45     In Lim Tee Hian, the offender was convicted after a trial and sentenced to 8 years’ imprisonment for the s 306 Penal Code offence. He had instigated the deceased to commit suicide (at [71]).

46     The High Court in Lim Tee Hian stated that it was “indisputably a very serious case of abetment of suicide at the heart of which was the wanton greed of the accused to profit by fraud on insurance companies and which involved the grievous loss of an innocent life. It was planned over a period of time. The accused manipulated and took heartless advantage of the love and devotion of a naive and simple-minded girl who he knew loved him so much and so deeply that she was even prepared to sacrifice her own life to get him out of the mortal danger from the phantom creditors which he artfully persuaded her were real and imminent” (at [75]).

47     Given the facts and circumstances of Lim Tee Hian, the Accused was less culpable than the offender in Lim Tee Hian.

Section 204A of the Penal Code

(1)   Parthiban a/l Kanapathy v Public Prosecutor

48     The Court of Appeal in Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847 stated that:[note: 51]

(a)     General deterrence ought to be the primary sentencing consideration for s 204A of the Penal Code.[note: 52]

(b)     Offences under s 204A of the Penal Code included situations where offenders seek to obstruct the course of justice by eradicating or fabricating evidence of their own wrongdoing or that of others, whether to conceal acts of another or of one’s own transgressions.[note: 53]

(c)     A multitude of factors, both offence-specific and offender-specific, may be considered in determining the relevant sentence to be imposed. For example, in assessing the extent of wrongdoing, the nature of the predicate charge upon which the offender had sought to thwart the course of justice is relevant. The more serious it is, the more serious the act of perverting the course of justice will be (see the High Court decision in Seah Hock Thiam v Public Prosecutor [2013] SGHC 136 at [8]). Relatedly, the effect of the attempt to pervert the course of justice is also relevant, as is the case where offenders have perverted the course of justice in order to protect their own perceived interests.[note: 54]

(d)     The degree of persistence, premeditation and sophistication in the commission of the offences may also indicate the culpability of the accused person (see the District Court decision in Public Prosecutor v Lim Chit Foo [2019] SGDC 48 at [122]).[note: 55]

49     The Court of Appeal in Parthiban a/l Kanapathy at [29] affirmed the High Court’s sentence for the s 204A offence of one year and nine months’ imprisonment. Amongst other things, the predicate offence that the appellant’s actions were aimed at subverting – that of a capital charge – is the most serious conceivable (Parthiban a/l Kanapathy at [28]).

50     For completeness, in Public Prosecutor v S Iswaran, the High Court stated that there is no general principle that, in relation to offences under s 204A(a) of the Penal Code, the court should maintain “a degree of proportionality … by imposing a substantially lower sentence for the [s 204A(a)] offence than for the predicate offence” (at [118]). The High Court also disagreed that it was less serious to obscure the true facts than to destroy evidence (at [120]).

51     I agreed with the Prosecution that:

(a)     The predicate offence is extremely serious – this concerns the Accused’s abetment and involvement in Mr Wee’s suicide.[note: 56] The prescribed punishment for the s 306 offence is imprisonment which may extend to 10 years, and the offender shall also be liable to fine.

(b)     There was a degree of persistence, premeditation, and sophistication on the Accused’s part,[note: 57] including significant discussions between the Accused and Mr Wee as to how to get rid of the evidence.[note: 58]

(c)     The Accused undertook considerable efforts to bring these plans about, including instructing Mr Cheo[note: 59] to remove evidence (the nitrogen tank), disposing of the IKEA bag herself, and lying to SSSgt Munira[note: 60] to conceal Mr Wee’s suicide.[note: 61]

Sentences to run consecutively

52     As a general rule, sentences for unrelated offences should run consecutively, while sentences for offences that form part of a single transaction should run concurrently: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [41], [54] and [98(b)].

53     In the present case, all things considered, I was satisfied that both of the custodial sentences should run consecutively. Both charges related to different legally protected interests. The s 306 offence concerned punishing the voluntary facilitation of ending someone else’s life.[note: 62] The s 204A offence concerned the prevention of offences against justice by acts having the effect of hindering the course of justice (S Iswaran at [154]).

Totality principle

54     The sentence was in line with both limbs of the totality principle: Mohamed Shouffee Bin Adam at [54] and [57].

55      Sentence. All told, in the round, I sentenced the Accused as follows:

DAC No.

Sentence

Status

DAC 921296 2021

s 306 Penal Code

66 months

Consecutive

DAC 920605 2021

s 204A Penal Code

8 months

Consecutive

Total

74 months



Conclusion

56     The Prosecution proved its case beyond a reasonable doubt against the Accused. She was convicted on both charges.

57     She was sentenced to a global imprisonment term of 74 months.

58     The offence of abetting suicide clearly signals society’s opposition to suicide.[note: 63] Life is sacred.

59     I am grateful for the hard work and submissions of the Prosecution and the Defence.

[note: 1]Prosecution’s Skeletal Submissions on Sentence at [2], [3], [5] and [10]-[12].

[note: 2]Prosecution’s Skeletal Submissions on Sentence at [4(c)(i)].

[note: 3]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(1)].

[note: 4]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(2)].

[note: 5]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(3)].

[note: 6]Prosecution’s Skeletal Submissions on Sentence at [4(c)(ii)(4)].

[note: 7]Prosecution’s Skeletal Submissions on Sentence at [4(c)(iii)].

[note: 8]Prosecution’s Skeletal Submissions on Sentence at [4(c)(iv)].

[note: 9]Prosecution’s Skeletal Submissions on Sentence at [4(e)].

[note: 10]Prosecution’s Skeletal Submissions on Sentence at [4(e)(i)].

[note: 11]Prosecution’s Skeletal Submissions on Sentence at [4(e)(ii)].

[note: 12]Prosecution’s Skeletal Submissions on Sentence at [8(a)].

[note: 13]Prosecution’s Skeletal Submissions on Sentence at [8(b)].

[note: 14]Prosecution’s Skeletal Submissions on Sentence at [8(b)(i)].

[note: 15]Prosecution’s Skeletal Submissions on Sentence at [8(b)(ii)].

[note: 16]PW10.

[note: 17]PW16.

[note: 18]Prosecution’s Skeletal Submissions on Sentence at [8(b)(iii)].

[note: 19]Mitigation Plea at [7]-[8], [79] and [109].

[note: 20]Mitigation Plea at [31].

[note: 21]Mitigation Plea at [36].

[note: 22]Mitigation Plea at [42(a)].

[note: 23]Mitigation Plea at [42(b)].

[note: 24]Mitigation Plea at [42(c)].

[note: 25]Mitigation Plea at [42(d)].

[note: 26]Mitigation Plea at [42(e)].

[note: 27]Mitigation Plea at [46].

[note: 28]Mitigation Plea at [58].

[note: 29]Mitigation Plea at [58].

[note: 30]Mitigation Plea at [60].

[note: 31]Mitigation Plea at [63].

[note: 32]Mitigation Plea at [67].

[note: 33]Mitigation Plea at [77(b)].

[note: 34]Mitigation Plea at [77(c)].

[note: 35]Mitigation Plea at [24]-[31].

[note: 36]Prosecution’s Skeletal Submissions on Sentence at [4(c)(i)].

[note: 37]PW14.

[note: 38]SOAF at [38].

[note: 39]ASOF at [27]-[29] and [35].

[note: 40]Prosecution’s Closing Submissions at [4]. Defence’s Written Submissions at [11].

[note: 41]Defence’s Written Submissions at [136(b)].

[note: 42]Defence’s Written Submissions at [136(b)], citing ASOF-20 at [72].

[note: 43]Defence’s Written Submissions at [11] and [136(a)].

[note: 44]Defence’s Written Submissions at [136(c)].

[note: 45]Defence’s Written Submissions at [11].

[note: 46]Defence’s Written Submissions at [136(e) and (h)].

[note: 47]Defence’s Written Submissions at [144(d)], citing ASOF-19 at [24]. Mitigation Plea at [77(g)].

[note: 48]Defence’s Written Submissions at [144(d)], citing ASOF-19 at [24].

[note: 49]Defence’s Written Submissions at [144(b)].

[note: 50]Defence’s Written Submissions at [144(c)]. Mitigation Plea at [42(b)].

[note: 51]Prosecution’s Skeletal Submissions on Sentence at [7].

[note: 52]Prosecution’s Skeletal Submissions on Sentence at [7(a)].

[note: 53]Prosecution’s Skeletal Submissions on Sentence at [7(b)].

[note: 54]Prosecution’s Skeletal Submissions on Sentence at [7(c)].

[note: 55]Prosecution’s Skeletal Submissions on Sentence at [7(c)].

[note: 56]Prosecution’s Skeletal Submissions on Sentence at [8(a)].

[note: 57]Prosecution’s Skeletal Submissions on Sentence at [8(b)].

[note: 58]Prosecution’s Skeletal Submissions on Sentence at [8(b)(i)].

[note: 59]PW10.

[note: 60]PW16.

[note: 61]Prosecution’s Skeletal Submissions on Sentence at [8(b)(iii)].

[note: 62]Penal Code Review Committee Report (August 2018) at page 345.

[note: 63]Penal Code Review Committee Report (August 2018), paraphrasing page 348.

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Competition and Consumer Commission of Singapore and another v Nail Palace (BPP) Pte. Ltd. and another matter
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Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Georgina Lum
Counsel Name(s): Mr Chooi Yue Wai Kenny, Mr Joel Jaryn Yap Shen, Ms Yap Wei Yee (Adsan Law LLC) for the applicant; Mr Ng Boon Gan (VanillaLaw LLC) for the respondents.
Parties: Competition and Consumer Commission of Singapore — Nail Palace (BPP) Pte. Ltd. — Nail Palace (SM) Pte. Ltd.

Consumer Protection (Fair Trading) Act – Sections 9(4) and 9(5) – Whether there is a breach of accompanying orders issued

Contempt of Court – Civil Contempt – Disobedience of order of court

Contempt of Court – Civil Contempt – Sentencing

9 September 2024

Judgment reserved.

District Judge Georgina Lum:

Introduction

1       The plaintiff has filed Summons No. 2849 of 2023 (“Summons 2849”) in Originating Summons No. 285 of 2021 (“OSS 285”) and Summons No. 2850 of 2023 (“Summons 2850”) in Originating Summons No. 286 of 2021 (“OSS 286”).

2       In these two applications, the plaintiff seeks orders for the imposition of fines on the defendant companies in both proceedings and for the committal of their managing director, Mr. Kaiden Cheng, for breaching two Orders of Court dated 28 July 2023 (i.e. HC/ORC 3513/2023 and HC/ORC 3515/2023) issued by Judicial Commissioner Goh Yihan (as he then was) in appeals filed against certain orders issued by District Judge Elaine Lim (“DJ Lim”) in OSS 285 and 286 (hereinafter to be collectively referred to as "the Orders of Court").

Background

The parties

3       The plaintiff, the Competition and Consumer Commission of Singapore (“CCCS”), is a statutory board of the Singapore government. Since 1 April 2018, it has been entrusted with administering and enforcing the Consumer Protection (Fair Trading) Act 2003 (2020 Rev Ed) (“CPFTA”), which safeguards consumers against unfair trade practices.

4       Nail Palace (BPP) Pte Ltd (“NPBPP”) is the defendant in OSS 285 and Nail Palace (SM) Pte Ltd (“NPSM”) is the defendant in OSS 286. Both defendants are companies that provide, amongst other things, manicure and pedicure services, and foot-related treatments.

5       Mr Kaiden Cheng (“Mr Cheng”) is the managing director of both defendants at all material times and other related companies providing similar services and products, all of which trade under the business name “Nail Palace”.

6       For ease of reference, I will refer to the CCCS as the applicant, to NPBPP and NPSM collectively as “the respondent companies” and to NPBPP, NPSM and Mr Cheng collectively as the “respondents”.

Procedural history

7       On 17 December 2021, OSS 285 and OSS 286 were filed. In a nutshell, under section 9 of the CPFTA, the applicant sought (a) declarations that the respondent companies had engaged in certain unfair practices in relation to fungal treatment packages, (b) final injunctions to restrain the respondent companies from engaging in such practices, and (c) various accompanying orders.

8       On 8 August 2022, DJ Lim issued a 66-page judgment (“the Judgment”) in which comprehensive grounds were given as the basis for her issuing a decision substantively in favour of the appellant and granting most of the reliefs it had sought (see Competition and Consumer Commission of Singapore v Nail Palace (BPP) Pte Ltd and another matter [2022] SGDC 171).

9       A request for further arguments were made by the respondent companies with respect to some of the accompanying orders. On 2 September 2022, DJ Lim dismissed the further arguments and gave the respondent companies an extension of time to comply with the accompanying orders which were the subject of their further arguments.

10     In two Orders of Court dated 2 September 2022, DJ Lim ordered inter alia that each of the respondent companies:

“2.    …is to publish, at its own expense, within twenty-one days from 2 September 2022, details of the declarations and injunctions granted against it, by way of a full page public notice in the Straits Times, Lianhe Zaobao, Berita Harian, and Tamil Murasu, pursuant to sections 9(4) and 9(5) of the Consumer Protection (Fair Trading) Act.”

3.    …must, before any consumer enters into a contract in relation to a consumer transaction with it during a period of two years from 2 September 2022:

(1)    notify the consumer in writing about the declarations and injunctions in force against the Defendant; and

(2)    obtain the consumer’s written acknowledgement of receipt of the said notice.”

(Hereinafter to be referred to as the “DC Publication Orders” and the “DC Consumer Notification Orders” respectively)

11     The Orders of Court dated 2 September 2022 were served on the respondents with the requisite penal notices inserted in September 2022.

12     On 14 September 2022, the respondent companies filed appeals against the DC Publication Orders and the DC Consumer Notification Orders given by the learned DJ on 2 September 2022. These appeals were placed before Judicial Commissioner Goh Yihan (as he then was).

13     On 8 November 2022, the respondent companies filed applications to stay the orders issued by DJ Lim in both OSS 285 and OSS 286 pending the determination of the appeals before the High Court (“the Stay Applications”). On 20 June 2023, the learned DJ dismissed the Stay Applications.

14     On 28 July 2023, the High Court dismissed both appeals and issued the two Orders of Court.

15     Paragraph 2 of both Orders of Court states that:

“2.    The Appellant is to publish, at its own expense, within twenty-one days from 28 July 2023, details of the declaration and injunction granted against it, by way of a full page public notice in the Straits Times, Lianhe Zaobao, Berita Harian, and Tamil Murasu, pursuant to sections 9(4) and 9(5) of the Consumer Protection (Fair Trading) Act.

(Hereinafter to be referred to as the “HC Publication Orders”)

16     At paragraph 3 of the Orders of Court, the High Court further ordered that:

“3.    The Appellant must, before any consumer enters into a contract in relation to a consumer transaction with it during a period of two years from 28 July 2023:

(1)    notify the consumer in writing about the declaration and injunction in force against the Appellant; and

(2)    obtain the consumer’s written acknowledgement of receipt of the said notice.”

(Hereinafter to be referred to as the “HC Consumer Notification Orders”)

17     On 2 and 3 August 2023, the respondent companies and Mr Cheng were personally served with copies of the Orders of Court with the requisite penal notices properly inserted.

18     In the two present applications, the applicant seeks a fine of at least S$15,000 against each of the respondent companies (NPBPP and NPSM) and a custodial sentence of 3 to 4 months for Mr Cheng arising from their continuing failure to comply with the HC Publication Orders and the HC Consumer Notification Orders to date[note: 1].

19     The respondents accept that they have breached the HC Publication Orders from 13 August 2023 to 31 August 2023 and accept that they have breached the HC Consumer Notification Orders on 14 September 2023. The respondents however submit that they have complied with the HC Publication Orders on 31 August 2023 and have complied with the HC Consumer Notification Orders save for “a single instance of non-compliance”[note: 2]. On this basis, the respondents further submit that the imposition of a fine within the range of S$5000 and S$16,000 against all the respondents would be an appropriate sentence and further submit that in the event a custodial sentence is imposed that it should be suspended[note: 3].

Issues to be determined

20     Bearing in mind the position taken by parties in their submissions, it appears that there is no disagreement regarding the occurrence of a breach. The real bone of contention between parties is the extent of the breach by the respondents and the appropriate sentence to be imposed.

21     Therefore, in my judgment, the following are the issues to be determined:

(a)     The extent of the respondent companies’ breach of the HC Publication Orders;

(b)     The extent of the respondent companies’ breach of the HC Consumer Notification Orders;

(c)     Whether Mr Cheng is liable for contempt: and

(d)     The appropriate sentence to be imposed on each of the respondents.

Issue 1: The extent of the respondents’ breach of the HC Publication Orders

22     With respect to the HC Publication Orders, the respondents contend that:

(a)     The HC Publication Orders had been complied with on 31 August 2023; and

(b)     Prior to the deadline of 18 August 2023, the respondents had made attempts to comply and had unintentionally failed to meet the said deadline because the applicant had refused to “take a clear position on the mode of compliance which would satisfy it” and the respondents were no longer legally advised[note: 4].

23     For the reasons stated below, I do not and cannot accept both these contentions.

There was no compliance by the respondents on 31 August 2023

24     On 31 August 2023, the respondents reproduced and condensed all 66 pages of the Judgment issued by DJ Lim into a single page and published four one-page advertisements in the Straits Times, Lianhe Zaobao, Berita Harian and Tamil Murasu (“the Advertisements”).

25     The applicant asserts[note: 5] that the form and manner in which the Advertisements were made do not secure adequate publicity, that the Advertisements published in Lianhe Zaobao, Berita Harian and Tamil Murasu were not duly translated and that the Advertisements should have included reference to the Orders of Court made by JC Goh.

26     In their response, the respondents argue[note: 6] that the applicant is seeking to expand the scope of the HC Publication Orders without basis and unilaterally imposing additional requirements on NPBPP and NPSM. The respondents further contend that neither the HC Publication Orders nor the CPFTA stipulate the specific format for publications or mandate translations into Chinese, Malay or Tamil. Additionally, they assert that the publications need not make reference to the Orders of Court[note: 7].

27     I am unable to accept the arguments presented by the respondents.

28     Where injunctions and declarations are granted, section 9(4) of the CPFTA clearly provides that the Court has the discretion to make an accompanying order that the supplier publish the details of the declaration or injunction in a form and manner that will secure prompt and adequate publicity for the declaration or injunction issued against the supplier.

29     Section 9(5) of the CPFTA further provides that details in such publications should include: (a) the name of the supplier; (b) whether the supplier is subject to any other subsisting declaration or injunction, or both, pursuant to any other action commenced under this section; (c) the address at which the supplier is carrying on the supplier’s business; and (d) where the supplier carries on business through the Internet, the Internet address at which the supplier may enter into a consumer transaction with a consumer.

30     The discretion to compel publication was exercised by both DJ Lim and Judicial Commissioner Goh Yihan (as he then was) who have issued decisions with respect to the underlying dispute in the present matter. In fact, specific references to sections 9(4) and 9(5) of the CPFTA were made in both the DC Publication Orders and the HC Publication Orders.

31     Detailed analyses of the legislative intent behind the introduction of these accompanying orders into the CPFTA were made by both DJ Lim and JC Goh. I do not propose to repeat these dissertations in their entirety in my judgment but will state for the record that I am in entire agreement with Judicial Commissioner Goh Yihan (as he then was) that three purposes were meant to be achieved in the creation of these accompanying orders in the Consumer Protection (Fair Trading) Act 2023.

(a)     The first and primary aim of such orders are to raise consumer awareness of suppliers who are under accompanying injunctions or declarations to assist consumers in making informed purchasing decisions.

(b)     Secondly, certain categories of accompanying orders are meant to enable the agency concerned to monitor errant suppliers

(c)     Lastly, the accompanying orders are meant to have a general deterrent effect.

32     I further note that in highlighting the purpose behind the introduction of accompanying orders under section 9(4) of the CPFTA, Dr Koh Poh Koon, Minister of State for Trade and Industry at the Second reading of the Consumer (Fair Trading) Amendment Bill in 2016[note: 8] specifically stated that:

Taken together, the requirements for errant retailers to publicise the injunction orders and notify consumers of the injunction prior to entering into a transaction…will serve to raise consumers’ awareness of retailers who are under injunction. Consumers can then decide if they still want to purchase from the retailer. This goes back to the principle of ‘caveat emptor’, buyers beware, with consumers exercising their choice and making informed purchasing decisions.

33     Bearing in mind the clear terms in which sections 9(4) and 9(5) of CPFTA are couched and the express legislative intent set out by Dr Koh Poh Koon, it is incontrovertible that the primary purpose of the accompanying HC Publication Orders is to notify consumers and raise consumer awareness of the injunctions and declarations issued against the respondents.

34     In my view, the Advertisements have failed to achieve the primary public purpose for which they were intended and fail to comply with the HC Publication Orders in both form and substance.

35     The form in which the Advertisements were issued intentionally obscures the terms and effect of the declarations and injunctions issued against NPBPP and NPSM while purporting to achieve technical compliance with the court orders made and section 9(5) of the CPFTA. Copies of the Advertisements were submitted to the Court in both A4 size and the standard size of a newspaper page. In both formats, the reproduction and condensation of a 66-page Judgment into a one-page document rendered the terms of the declarations and injunctions contained therein nearly illegible.

36     The respondents argue that the Advertisements contain all the particulars required in section 9(5) of the CPFTA[note: 9]. This argument does not assist the respondents when the details required to be communicated to consumers are hidden within a substantial amount of text and 101 paragraphs of a Judgment. The deliberately chosen mode of presentation effectively conceal the details of the injunctions and declarations made against NPBPP and NPSM.

37     On a plain examination of the reproductions provided to me, I cannot accept that any reasonable man or individual could objectively or subjectively take the view that the Advertisements would secure adequate publicity for the declarations and injunctions against the respondent companies, notify consumers of the terms of the declarations and injunctions against the respondent companies and/or raise awareness on the part of a consumer to assist him/her in making informed purchasing decisions.

38     In fact, I am of the view that the fundamental failure in form that the Advertisements took has the consequential effect of rendering the Advertisements substantially in breach of the HC Publication Orders.

39     The intent, purpose and therefore substance behind the issuance of a publication order under section 9(4) of the CPFTA is to notify and inform consumers of injunctions and declarations made so they may make informed choices in their decisions as consumers. The entire reproduction and condensation of the Judgment into the one-page Advertisements to obscure the declarations and injunctions contained within does not meet this intent or purpose at all.

40     Further to the above, the contents of the Advertisements were also not translated into Chinese, Malay or Tamil when the purported publications were made in Lianhe Zaobao, Berita Harian and Tamil Murasu respectively.

(a)     On this issue, the respondents argue that the HC Publication Orders did not specifically require translations and submit that the applicant was “expanding the requirements” in the said order and “imply(ing) the additional requirement of translation[note: 10].

(b)     I accept that the HC Publication Orders did not expressly state that translations from English were required for publication in these 3 newspapers but am of the view that the orders did not need to do so.

(c)     Not all members of the public or consumers in Singapore are proficient in English and an order for publication in the 4 major local newspapers (each serving the function of communicating news to the public at large in the 4 main languages used in Singapore) is clearly aimed at ensuring that readers of these publications who are more likely to be either only or primarily proficient in Chinese, Malay or Tamil would be made aware of the declarations and injunctions issued against NPBPP and NPSM.

(d)     The applicant was not implying “an additional requirement” into the HC Publication Orders in objecting to the respondents’ failure to translate the abovementioned Advertisements, it was merely accurately interpreting the scope of the HC Publication Orders made.

(e)     As such, in addition to the reasons stated above, I am of the view that the Advertisements made in Lianhe Zaobao, Berita Harian and Tamil Murasu also did not comply with the HC Publication Orders as they were not translated into the respective languages used by each of these print media platforms for communicating news and notifications to the public.

41     I do however accept in part the respondents’ submission that reference to all the orders issued within the Orders of Court was not necessary in its publications. In summary, the Orders of Court:

(a)     dismissed the appeals made by the respondents,

(b)     imposed a fresh deadline for publication of the details of the declarations and injunctions issued by DJ Lim;

(c)     extended the period of the DC Consumer Notification Order to a period of two years from 28 July 2023; and

(d)     awarded costs in favour of the applicant.

42     It bears highlighting that: (a) the declarations and injunctions made by DJ Lim can be found at [100(a)] to [100(d)] of the Judgment; and (b) the DC Publication Orders and DC Consumer Notification Orders are accompanying orders issued in support of these declarations and injunctions.

43     The HC Publication Orders only required the respondents to publish details of the declaration and injunction issued against NPBPP and NPSM within twenty-one days from 28 July 2023. In my view, the respondents were not required to publish details on the fresh deadlines issued for accompanying orders or cost orders made. I am however of the view that by necessity and to give the proper context to any publication issued, the respondents would need to refer to Orders of Court issued by the High Court to inform the public that they were obliged to comply with injunctions and declarations by virtue of orders of court issued on 8 August 2022, 2 September 2022 and 28 July 2023 with respect to OSS 285 and OSS 286 and appeals arising thereon.

44     In short, I am of the view that the HC Publication Orders did not require the respondents to publish details of the accompanying orders issued with respect to the injunctions and declarations but that reference to the Orders of Court needed to be included in the publications issued thereunder for completeness and context.

Conduct prior to purported compliance with the HC Publications Orders

45     In addition to claiming that publication had been made by way of the Advertisements, it the respondents’ position that they did not have any intention of breaching the HC Publication Order.

46     To substantiate this, Mr Cheng asserts the following in his reply affidavit filed on behalf of the respondents[note: 11]:

(a)     On 17 August 2023, the respondents had sought advice from their solicitors on compliance with the HC Publication Orders but did not manage to obtain any advice because the quote submitted by their previous solicitors exceeded their budgetary constraints.

(b)     On 18 August 2023, the respondents “sought clarification from the (applicant), but the (applicant) had declined to directly correspond with (the respondents) on the matter of compliance”.

(c)     On 23 August 2023, the respondents “sought the (applicant’s) approval as to the draft advertisement prior to publication” but the applicant “again declined to respond substantively to the (respondents) and deferred to the (applicant’s solicitors) instead”.

(d)     “Due to these difficulties”, the respondents (without any legal advice or assistance) had attempted to comply with the HC Publication Orders by publishing the Judgment as “it was the most transparent way of comprehensively setting out the findings and orders made against it”.

47     The respondents further claim that it is “unfair” for the applicant to “not take a clear position on the mode of compliance” and “then proceed to make an application for committal based on the (respondents') honest and reasonable failures to comply”[note: 12].

48     These assertions do not assist the respondents. I arrive at this observation for the following reasons.

49     Prior to engaging their current solicitors, the respondents were advised by two different sets of solicitors in the present proceedings[note: 13]. M/s Vicki Heng Law Corporation ("VHLC") provided advice to the respondents from the initiation of proceedings in January 2022 until shortly after appeals were filed against DJ Lim’s Judgment around 19 September 2022. Thereafter, KSCGP Juris LLP (“KSCGP”) was appointed in or around 19 October 2022[note: 14]. On 14 December 2023 a Notice of Change of Solicitor was filed reflecting the appointment of the respondents’ current solicitors.

50     On 2 January 2004[note: 15], the respondents’ current solicitors sought input from both of the respondents’ previous solicitors, on a draft of the reply affidavits filed by the respondents herein with respect to events that the respondents claim had occurred in 2022 and 2023.

51     In response, KSCGP had clarified in a letter dated 5 January 2024[note: 16] that:

(a)     On 28 July 2023, their firm had sent an email to Ms. Valerie Tan of the respondents (“Ms. Tan”) enclosing the judgment issued by Judicial Commissioner Goh Yihan (as he then was) on 28 July 2023 (“the HC Judgment”) to ask if the respondents required advice on the said judgement and on the merits of an appeal to the Court of Appeal.

(b)     On the same day, Ms. Tan responded to their firm’s email stating they needed advice on the HC Judgement and KSCGP then provided a quote.

(c)     On 12 August 2023 and 14 August 2023, KSCGP’s Mr. Navinder Singh sent messages via Whatsapp to the respondents to request that they send KSCGP an email stating that they will not appeal against the Judgment and they will not engage KSCGP to advise on compliance issues.

(d)     On 14 August 2023, Ms. Tan advised that the respondents would not be appealing to the Court of Appeal but would engage their firm to advise on the compliance issues.

(e)     On 16 August 2023, KSCGP provided a quote for post judgement work.

(f)     On 17 August 2023, KSCGP sent a letter to the applicant’s solicitors to request for a draft of the full-page notice in English and to request for an extension till 25 August 2023 to comply with the HC Publication Orders.

(g)     Repeated reminders for payment to be made towards their bill were sent by KSCGP to the respondents between 18 August 2023 and 15 September 2023.

(h)     On 30 August 2023, KSCGP sent an email to the respondents to follow up on the payment, and also to remind the respondents that “they have to comply with the HC Publication Orders and that the publications as ordered run effectively from 18 August 2023”. The respondents were also informed that it is a contempt of court if they did not comply with the court orders, and that the applicant can commence enforcement proceedings against the respondents for which the directors can be taken to task, and the punishment for contempt of court is a fine or imprisonment or both.

(i)     On 12 October 2023, KSCGP received instructions from the respondents that they will not require KSCGP’s services for the post judgment work.

52     To provide further context to the sequence of events that had occurred from the issuance of the HC Publication Orders on 28 July 2023 to 31 August 2023, I also refer to the contemporaneous correspondence exchanged between parties[note: 17].

53     One day before the deadline for publication stipulated in the HC Publication Orders, on 17 August 2023 at 4.17pm, the respondent companies’ solicitors wrote to the applicant’s solicitors: (a) stating that they were “instructed to…request for the wording draft for the full-page public notice in English for (their) clients’ consideration…and humbly request till 25 August 2023” to comply with the HC Publication Order; and (b) seeking a response by 12 noon on 18 August 2023.

54     On 18 August 2023 at 2.32pm, the applicant’s solicitors replied to the respondent companies’ solicitors. In this written response, it was stated that: (a) the respondents should be seeking their own legal advice as to, inter alia, the manner of compliance with the relevant Orders of Court issued; (b) the applicant is not legally obliged to draft the wording of the notices for the respondents’ “consideration”, or to provide any advice to the respondents; and (c) it was incumbent on the respondents to ensure strict compliance with the separate and distinct obligations in the relevant Orders of Court.

55     Concurrent to the above correspondence between solicitors, the general manager of NPBPP, Ms Tan was attempting to engage the applicant directly on the HC Publication Orders.

(a)     On 18 August 2023 at 10.55am, Ms Tan emailed the Senior Assistant Director of the applicant, Mr Angus Xie (“Mr Xie”) requesting for an “exemption” from publication order for (the respondents) since the cost of this publication will be reflectively high:

(b)     On the same day at 3.14pm, Mr Xie replied to state that all requests to the applicant with respect to the Orders of Court should be made to the applicant through KSCGP as both the respondent companies are represented by counsel.

(c)     On 21 August 2023, Mr Xie sent an email to Ms Tan:

(i)       Putting on record that he had received 2 missed calls and a voice message on 21 August 2023 asking him to call Mr Cheng;

(ii)       Expressly stating that he would not be calling Mr Cheng; and

(iii)       Repeating his request that all correspondence with respect to the Orders of Court should be exchanged between solicitors.

(d)     Ms Tan replied in an email dated 22 August 2023 repeating the respondents’ request to speak directly with the applicant.

(e)     On 23 August 2023, Ms Tan sent an email at 1.47pm:

(i)       Claiming to have spoken with Mr Xie and “writing to discuss what (they had) spoke(n) about”;

(ii)       Claiming to have included a “clause in (their) written agreements with clients notifying them of the injunction”

(iii)       Asking for approval to allow the respondent to place one “notice advertisements” (sic);

(iv)       Asking the applicant to “let (them) know if there is anything else that (they) need to take note of, otherwise, (they) will proceed as written above”; and

(v)       Informing the applicant that the respondents “will proceed accordingly, if there are no further comments received by 3pm today”.

(f)     At 3.16pm on the 23 August 2023, Mr Xie replied to state that:

(i)       The applicant wished “to clarify and put on record that neither (himself) nor any of (his) colleagues spoke to (Ms Tan) or any other representative of (the respondent companies) at any time prior to or after (Ms Tan’s) email;

(ii)       As stated in their emails dated 18 August and 21 August 2023, the applicant’s position remains that all requests and correspondence to the applicant in relation to the Orders of Court should be made to the applicant through its lawyers; and

(iii)       For the avoidance of doubt, the applicant’s position remains that the respondents are obliged to comply with the Orders of Court and reserve the right to take the necessary legal action if the Orders are not complied with within the stipulated time periods.

56     In my view, the contemporaneous correspondence disclosed and the chronology of events provided by the respondents’ previous solicitors did not indicate that any steps were taken by the respondents to comply with the HC Publication Orders till the day before the stipulated deadline for publication of 18 August 2023 (i.e. 17 August 2023).

57     Even on 17 August 2023, the only step taken by the respondent companies and their solicitors was to issue a letter to the applicant’s solicitors looking to the applicant for a draft “notice” for the respondents’ “consideration”.

58     The contemporaneous correspondence exchanged when read with the submissions made before this Court in the two present applications on this issue, indicate that the respondents are under the misapprehension since July 2023 that:

(a)     the onus does not lie on the respondents to ensure that they obtain adequate legal advice and/or take all possible steps in a timely fashion to comply with the HC Publication Orders;

(b)     the burden of drafting an announcement complying with the HC Publication Orders lay with the applicant and/or its solicitors; and/or

(c)     compliance with the HC Publication Orders was a matter which they could attempt to unilaterally vary or negotiate on even after the said orders had been breached.

59     There is no obligation on the applicant and/or its solicitors to advise the respondent companies on the steps they need to take to comply with the HC Publication Orders. Indeed, it would have been inappropriate for the applicant to do so given that the respondent companies were legally represented at the material time. It was for the respondent companies and Mr Cheng to ensure that the respondent companies complied with the Orders of Court issued against it.

60     Since the respondent companies had chosen to wait till days before the stipulated deadline in the HC Publication Orders to seek advice from their solicitors on compliance with the Orders of Court and thereafter decided not to obtain legal advice due to budgetary constraints, they must stand by their decision to do so and its consequences. The onus to ensure compliance with the HC Publication Order rests on the respondents, not the applicant or its solicitors.

61     Further and in any event, their subjective view that they have honestly complied is not relevant in finding if there is contempt.

62     The mens reas necessary to establish a finding of civil contempt is set at a low threshold. It suffices that the relevant conduct was intentional, and that the contemnor knew of all the facts that rendered such conduct a breach of the order (such as the order’s existence and its terms): SpaceSATS Pte Ltd v Chan Chia Sern and others [2023] SGHC 40 at [31] (“SpaceSATS”). While the contemnor must necessarily have knowledge of the existence of the order and its material terms, it need not be shown that he had the specific intention of disobeying the court order or appreciated that he was breaching the order: Mok Kah Hong v Zheng Zhuan Yao [2016] 3 S.L.R. 1 at [86] (“Mok Kah Kong”) and SpaceSATS at [31]. The contemnor’s motive in doing the acts which breached the court order is strictly irrelevant to the question of liability, and is only relevant to the question of mitigation or in determining the appropriate penalty to be imposed: OCM Opportunities Fund II, LP, Burhan Uray (alias Wong Ming Kiong) [2005] 3 S.L.R. (R.) 60 at [27] (“OCM Opportunities”) and Mok Kah Kong at [86]. The criminal standard of proof (i.e. beyond reasonable doubt) applies in determining liability: SpaceSATS at [38].

63     In the present case, the respondents were all aware of the existence and material terms of the Orders of Court and had intentionally issued the Advertisements in purported compliance with the HC Publication Orders. While the respondent and/or its officers may submit that they did not subjectively appreciate that these publications did not comply with the order (which I do not accept), this is not a factor that is relevant to the question of liability for contempt in this present context. I am further of the view that this was not an honest and/or reasonable mistake that could in any event have been made given the illegibility of the Advertisements published and the clear terms of the HC Publication Orders.

64     In the circumstances and for the reasons stated above, I am satisfied beyond reasonable doubt that the respondent companies are liable for contempt for breach of the HC Publication Orders.

Issue 2: The extent of the respondents’ breach of the HC Consumer Notification Orders

65     Moving on to the HC Consumer Notification Orders.

66     On 14 September 2023, with a view towards ascertaining if the respondent companies were complying with the HC Consumer Notification Orders, two senior executives of the applicant visited NPBPP’s outlet at 1 Jelubu Road $04-02 Bukit Panjang Plaza Singapore 677743 (“NPBPP outlet”) and NPSM’s outlet at 3 Simei Street 6 #02-17 East Point Mall Singapore 528833 (“NPSM’s outlet”) as new customers (“the September Visits”).

67     Both executives entered into a contract on the same date for pedicure and manicure services at the two outlets and it is their evidence[note: 18] that:

(a)     throughout their entire visit they were not notified in writing of the declaration and injunction against the respondent companies and were also not asked to sign a written acknowledgment of receipt; and

(b)     As new customers who had walked in, requested and paid for services, they were not asked at any point in time to sign any “customer registration form” or any such similar document throughout their entire visit at both outlets.

68     The respondents concede that there was indeed non-compliance on 14 September 2023 but contend[note: 19] that:

(a)     The breach was “one-off and not premeditated”; and

(b)     The breach was not deliberate as the respondent companies had put in place measures to comply with the HC Consumer Notification Orders.

69     In support of the respondents’ claims that measures had been put in place to ensure compliance with the HC Consumer Notification Orders, Mr Cheng has filed two reply affidavits on the respondents’ behalf in the present two applications tendering copies of the following documents[note: 20]:

(a)     An internal memorandum to the respondents’ staff issued on 27 October 2022 informing their staff that they were to obtain the signatures of customers on a Customer Registration Form (“the October Memorandum”).

(b)     The Customer Registration Form which Mr Cheng asserts includes “a notice of the Court Orders at the end” (“the Customer Registration Form”).

(c)     Records of customers who signed the Customer Registration Form (“the Registration Records”); and

(d)     A further memorandum issued to the respondents’ staff on 21 December 2023 “to ensure that all future customers shall be asked to sign the Customer Registration Form and have their attention drawn to the notice in relation to the declaration and injunction” (“the December Memorandum”).

70     On a close review of the documents provided, I am not satisfied that: (a) appropriate measures had been put in place to ensure compliance with the HC Consumer Notification Orders; (b) there had been compliance with the DC Consumer Notification Orders and the HC Consumer Notification Orders; and (c) the events that occurred on 14 September 2023 were a “single lapse amidst of a continuous attempt to comply”[note: 21].

71     As a starting point, the instructions issued to the respondents’ staff do not appear to include a direction to notify all consumers entering into a contract in relation to a consumer transaction with the respondent companies of the declarations and injunctions in force against them. It appears that, at best, directions were given to their employees to inform a sub-set of consumers of the existing declarations and injunctions, namely, “walk-ins and customers who are newly signed up”.

(a)     Section 2(1) of the CPFTA defines the terms “consumer” and “consumer transaction” as follows:

“consumer” means an individual who, otherwise than exclusively in the course of business —

(a)    receives or has the right to receive goods or services from a supplier; or

(b)    has a legal obligation to pay a supplier for goods or services that have been or are to be supplied to another individual.

“consumer transaction” means —

(a)    the supply of goods or services by a supplier to a consumer as a result of a purchase, lease, gift, contest or other arrangement; or

(b)    an agreement between a supplier and a consumer, as a result of a purchase, lease, gift, contest or other arrangement, in which the supplier is to supply goods or services to the consumer or to another consumer specified in the agreement,

but does not include any transaction specified in the First Schedule.

(b)     The First Schedule of CPFTA states that the term “consumer transaction” does not include any of the following transactions:

“(a)   acquisition of an estate or interest in any immovable property (but not including any lease of residential property granted in consideration of rent or any time share contract);

(b)    (to avoid doubt) service provided under a contract of employment.”

(c)     Applying the above definitions to the DC Consumer Notification Orders and the HC Consumer Notification Orders, the respondent companies were obliged since 2 September 2022 to notify every consumer (new, existing and/or repeat) who wished to engage any of the services of the respondent companies (by way of an appointment or by walking into any of their outlets) of the declarations and injunctions issued against them.

(d)     However, this does not appear to have been done.

(e)     The October Memorandum[note: 22] only directed the respondents’ staff to ensure that “walk-ins and customers who are newly signed up” fill up the Customer Registration Form.

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(f)     The electronic Customer Registration Form used also indicates that the form was to be filled in by consumers at their first appointment.

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(g)     The December Memorandum[note: 23] issued after the present applications were filed similarly restricted notification to “walk-ins and newly signed-up customers. In this memorandum, the respondents further informed their staff that a fine of S$500 would be imposed on “anyone who fails to ask the customer to sign the form”.

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(h)     Counsel for the respondents submitted[note: 24] that the directions given in the memorandums did not “expressly restrict the Customer Registration Form to only “walk-ins and customers who are newly signed up”, that the second paragraph of the memorandums remind the respondent companies’ staff to go over details of the form with “customers” (and that this term would include all customers) and that the Customer Registration Form itself does not exclude previous or repeated customers from filling it up. It was further submitted at the hearing of the applications that the term “walk-in” would include all customers that walked into any outlet and thereby include all customers.

(i)     I disagree. A plain reading of the documents tendered do not reflect an intention by the respondents (and any direction given by the respondents to their staff) to inform existing and repeat customers of the declarations and injunctions. I am also of the view that the submissions made by counsel for the respondents run contrary to the position taken by Mr Cheng (on behalf of the respondents) in an affidavit filed on 25 April 2023 with respect to the respondent companies’ Stay Applications[note: 25] that as part of its implementation efforts, the respondents had “in or around September 2022…added a statement at the bottom of the registration form for new customers” (emphasis added).

(j)     In the circumstances, I am of the view that since September 2022, the respondent had (at best) attempted to inform new customers of the injunctions and declarations issued by DJ Lim but did not take steps to inform all consumers who wished to engaged their services as they were obliged to do under the DC Consumer Notification Orders and the HC Consumer Notification Orders.

72     Secondly, even if every consumer who entered into a contract in relation to a consumer transaction with the respondent companies had received a Customer Registration Form and had provided their written acknowledgement of the same, the notification contained within the Customer Registration Form is incomplete and does not comply with the HC Consumer Notification Orders issued.

(a)     DJ Lim had issued two declarations and two injunctions on 8 August 2022 in her Judgment at [100]:

“(a)   a declaration that each of the (respondent companies) has engaged in an unfair practice within the meaning of section 4(d), read with paragraph 1B of the Second Schedule, to the CPFTA, by making a misleading representation concerning the need for fungal treatment(s) or fungal treatment package(s); and

(b)    a declaration that (NPSM) has also engaged in an unfair practice within the meaning of section 4(a) of the CPFTA, by omitting to inform a consumer that certain products were included in the price of a treatment package, thereby resulting in the consumer being misled

(c)    that Nail Palace BPP be restrained from engaging in the unfair practice referred to in subparagraph (a) above;

(d)    that Nail Palace SM be restrained from engaging in the unfair practices referred to in subparagraphs (a)-(b) above”

(b)     The notification contained in the Customer Registration Form reads as follows:

“Pursuant to Orders of Court of the State Courts, Republic of Singapore dated 8 August 2022 and 2 September 2022, we are hereby required to notify you that pursuant to the said Orders, a declaration was made by the Court that we had engaged in an unfair practice within the meaning of section 4(d), read with paragraph 1B of the Second Schedule, to the Consumer Protection (Fair Trading ) Act (“CPFTA”), by making a misleading representation concerning the need for fungal treatment or fungal treatment packages. We are further required to inform you that we have been restrained by the said Orders from engaging in any such unfair practices”

(c)     The notification is lacking in two respects.

(i)       There is no reference to the declaration made by DJ Lim at paragraph 100(b) the Judgment against NPSM and no reference to the injunction against NPSM from engaging in the unfair practices referred to at paragraph 100(b) of the Judgment; and

(ii)       The notification also does not inform the consumer that in addition to the two order of courts issued by DJ Lim on 8 August 2022 and 2 September 2022, the respondent companies are also bound by the Orders of Court issued on 28 July 2023 by the High Court.

73     Thirdly, the Registration Records[note: 26] provided by the respondents also indicate that there have been substantial and continuing lapses by the employees of the respondent companies even with respect to the directions the respondents had issued in the October Memorandum.

(a)     The Registration Records appear to record notifications being made to 1078 consumers in the period from 6 September 2022 to 24 December 2023.

(b)     Contrary to directions given in the October Memorandum that it was mandatory for the respondents’ staff to ensure that walk-ins and customers would fill in their “name, mobile number and address” in the Customer Registration Form, from 6 September 2022 to 30 October 2022, there are no particulars provided on the identity of 463 consumers who were purportedly notified of the declarations and injunctions. An extract of the records provided to the Court for this time period is replicated below[note: 27]:

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(c)     For the period of ten months, from 11 February 2023 to 19 December 2023, there are also no entries reflecting the notification of any customer by NPBPP during this time period.

(d)     The Registration Records therefore reflect that:

(i)       The respondents’ staff had not consistently and/or completely adhered to the directions issued in the October Memorandum; and

(ii)       NPBPP did not comply with the DC Consumer Notification Order and HC Consumer Notification Order for the period of ten months from 11 February 2023 to 19 December 2023.

74     In addition to its arguments that measures had been put in place to comply with the HC Consumer Notification Orders, the respondents further contend that it was their employees that had not complied with protocols or procedures that it had put in place[note: 28] and on this basis they take the view that the breach had occurred despite their attempts to comply with the HC Consumer Notification Orders.

75     It is trite law that the disobedience or breach may have been committed by an employee of the corporation but the corporation may still be held liable and its director punished for contempt: Datuk Hong Kim Sui v. Tiu Shi Kian [1987] MLJ 345 at [347]. It is not for the respondent companies to shift the burden of compliance to its employees and a breach on the part their employees is a breach of the respondents.

76     In this regard, it also bears highlighting that in the context of committal applications, liability is strict in the sense that all that is required to be proved is service of the order and the subsequent omission by the party to comply with the order: PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others [2018] 4 SLR 828 (“PT Sandipala”) at [47]–[48].

77     As such, the imperfect, incomplete and/or ad hoc compliance on the part of the respondent companies recorded in the evidence and documents before the Court is sufficient for the purposes of establishing liability.

78     In the circumstances, I am satisfied beyond reasonable doubt that the respondent companies are liable for contempt for breach of the HC Consumer Notification Orders.

Issue 3: Whether Mr Cheng is liable for contempt

79     Sections 6(2) and 6(7) of the Administration of Justice Protection Act 2016 (“AJPA”) provide that:

(2)    Where a corporation commits contempt of court under this Act, a person —

(a)    who is —

(i)    an officer of the corporation, or a member of a corporation whose affairs are managed by its members; or

(ii)   an individual who is involved in the management of the corporation and is in a position to influence the conduct of the corporation in relation to the commission of the contempt of court; and

(b)    who —

(i)    consented or connived, or conspired with others, to effect the commission of the contempt of court;

(ii)   is in any other way, whether by act or omission, knowingly concerned in, or is party to, the commission of the contempt of court by the corporation; or

(iii)   knew or ought reasonably to have known that the contempt of court by the corporation (or contempt of court of the same type) would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that contempt of court, shall be guilty of the same contempt of court as is the corporation, and shall be liable on being found guilty of contempt of court to be punished accordingly.

(7)    In this section —

“corporation” includes a limited liability partnership within the meaning of section 2(1) of the Limited Liability Partnerships Act 2005;

“officer”, in relation to a corporation, means any director, partner, chief executive, manager, secretary or other similar officer of the corporation, and includes —

(a)    any person purporting to act in any such capacity; and

(b)    for a corporation whose affairs are managed by its members, any of those members as if the member was a director of the corporation;

“state of mind” of a person includes —

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

80     It is apparent from the contents of the multiple affidavits that Mr Cheng has filed in both OSS 285, OSS 286 and the appeals arising thereon that he has been and is actively involved in: (a) the conduct of the present proceedings; and (b) overseeing the management and conduct of both the respondent companies and the “Nail Palace” group of companies to which they belong.

81     It is therefore no surprise that there have been no submissions made and/or evidence tendered before this Court taking the position that Mr Cheng had not been involved and/or had not participated in the management of and/or decision-making process behind the conduct of the respondent companies during these entire proceedings with respect to the DC Publications Orders, the DC Consumer Notification Orders, the Orders of Court, the HC Publication Orders and/or the HC Consumer Notification Orders.

82     In fact, submissions and evidence with respect to the two present applications were tendered on behalf of all the respondents in OSS 285 and OSS 286 as a unified whole and supported by evidence given by Mr Cheng on their behalf.

83     Mr Cheng’s position is therefore in entire alignment with: (a) the respondent companies that he oversees as a managing director; and (b) the submissions that the respondents have tendered with respect to Orders of Court, the HC Publication Orders, the HC Consumer Notification Orders, their conduct in relation to said orders and the claims made against all of them by the applicant in the present applications.

84     In the circumstances, given the approach taken by Mr Cheng to the present applications, his role and involvement in the two respondent companies, his knowledge of the terms of the Orders of Court since at least 3 August 2023 and his active participation in the present proceedings, I am of the view that he knew or ought reasonably to have known that contempt of court by the respondent companies was being committed, and had failed to take all reasonable steps to prevent or stop the commission of that contempt of court. I am therefore also satisfied beyond reasonable doubt that Mr Cheng is liable for the breach of the HC Publications Orders and the HC Consumer Notification Orders.

Issue 4: The appropriate sentences to be imposed

85     In view of my findings above, I now turn to consider the appropriate sentences to be imposed.

Parties’ Submissions

86     The applicant seeks[note: 29] a fine of at least S$15,000 against each of the respondent companies (NPBPP and NPSM) and a custodial sentence of 3 to 4 months against Mr Cheng on the basis that:

(a)     The contemnors are in continuing, deliberate, egregious and persistent breach of the Orders of Court;

(b)     The contemnors have a history of flagrant disregard of earlier orders of court and continued lack of cooperation;

(c)     The absence of valid reasons for non-compliance; and

(d)     The substantial prejudice caused to the applicants, consumers and public interest which cannot be remedied by costs or money.

87     The respondents submit that a suspended sentence and/or a fine between S$5000 to S$16,000 would be appropriate and asked the court to consider the following for the purposes of sentencing[note: 30]:

(a)     That the short delay in publishing the Advertisements is not a result of the respondents’ unwillingness to comply with the HC Publication Orders;

(b)     That the applicant’s demands of the mode of compliance with respect to the HC Publication Orders stands in contrast with the express terms of the HC Publication Orders, the express provisions of the CPFTA, and with its earlier disengaged, non-communicative stance;

(c)     That the respondents’ breach of the HC Consumer Notification Orders is once-off and in spite of its attempts to comply by introducing various measures; and

(d)     That the applicant is seeking to unfairly and through logical sleights of hand to characterise the respondents as contumelious, without accounting for the specific issues in dispute at the various stages of the proceedings, as well as using its own unreasonable behaviour to paint an unfavourable picture of the respondents.

Applicable legal principles

88     In the District Courts, contempt of court is punishable with a fine not exceeding S$20,000 or with imprisonment for a term not exceeding 12 months or with both (s12(1)(c) of the AJPA).

89     In exercising its discretion and determining the appropriate sentence to be imposed in each case, the courts will consider the facts of each case and the nature of contempt committed. In this exercise, the courts do take into account the past conduct of the contemnor in determining the appropriate sentence to be imposed: Mok Kah Kong at [106].

90     To provide a navigable framework in this decision, I refer to the various factors and guidelines elucidated by the Court of Appeal and the High Court in the cases of SpaceSATS at [103], Sembcorp Marine Ltd v Aurol Anthony Sabastian [2013] 1 SLR 245 at [57] to [68] (“Sembcorp Marine”) and Mok Kah Kong at [103] and [104]. It is clear from these decisions that the factors to be considered in sentencing include:

(a)     The purpose of the order breached and the impact of the breach on that purpose;

(b)     The reversibility of the breach – i.e. whether the harm caused can be remedied by a fine and costs, or if there is substantial prejudice which cannot be remedied by costs;

(c)     Whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;

(d)     The extent to which the contemnor has acted under pressure;

(e)     Whether the breach of the order was deliberate or unintentional;

(f)     The contemnor’s degree of culpability;

(g)     Whether the contemnor has been placed in breach of the order by reason of the conduct of others; and

(h)     Whether the contemnor has cooperated.

91     In addition to the abovementioned factors, Justice S. Mohan in SpaceSATS at [103] referred to the case of SembCorp Marine and noted that there is a stronger case for imprisonment where there is:

(a)     a continuing, deliberate and persistent course of conduct (Sembcorp Marine at [57]);

(b)     a failure to resolve the situation and continued lack of cooperation (Sembcorp Marine at [57] and [64]);

(c)     egregious behaviour and motive (Sembcorp Marine at [59]); and/or

(d)     a series of repeated breaches of the court order evincing flagrant disregard for the court’s authority (Sembcorp Marine at [62]).

92     Bearing the above in mind, I now turn to apply the above factors (where relevant) to the present case.

Is a custodial sentence appropriate?

93     I am of the view that the imposition of a custodial sentence is appropriate in the present case for the following 3 reasons.

94     As a start, I am of the view that there has been continuing, deliberate, egregious and persistent conduct by the respondents in disregard of their existing obligations under the Orders of Court. and in particular the HC Publications Orders and HC Consumer Notification Orders made thereunder.

95     The terms of the Orders of Court are unambiguous and clear.

96     To comply with the HC Publication Orders, the full-page public notices submitted for publication by the respondents would have to simply:

(a)     Make reference to all the orders of court compelling the respondents to issue the publications, namely, the Orders of Court dated 8 August 2022, 2 September 2022 and 28 July 2023;

(b)     Contain exact reproductions of the declarations and injunctions issued against them by DJ Lim in her Judgment at [110(a)] to [110(d)]; and

(c)     Be translated into chinese, malay and tamil when submitted for publication to Lianhe Zaobao, Berita Harian and Tamil Murasu.

97     With respect to the HC Consumer Notification Orders, there is similarly nothing complicated in the creation of a document (in electronic or physical form) containing the declarations and injunctions issued by DJ Lim in her Judgment at [110(a)] to [110(d)] and thereafter issuing clear instructions and reminders to all staff (on a regular basis if necessary) to ensure that all customers acknowledge the said form before services are provided by the respondent companies with measures put in place to ensure and monitor compliance.

98     However, this was not done by the respondents.

99     Instead, the evidence and contemporaneous documents provided before this Court show:

(a)     the respondents knowingly and intentionally breaching the HC Publication Orders by condensing the entire 66-page Judgment issued by DJ Lim into one page Advertisements thereby rendering: (i) the terms of the declarations and injunctions stated therein almost illegible and/or obscured; and (ii) the publication ineffectual;

(b)     the respondents intentionally and deliberately electing not to take proper, adequate and/or complete steps and/or measures to comply with the HC Consumer Notification Orders from 28 June 2023 to date;

(c)     a lack of urgency and a cavalier approach being taken by the respondents to compliance with the Orders of Court;

(d)     an unfounded misconception on the part of the respondents that they are entitled to: (i) look to the applicant for confirmation on the steps they were required to take in compliance with the Orders of Court; and/or (ii) place the blame for their non-compliance on the applicant; and

(e)     only technical or minimal attempts at purported compliance being made by the respondents in the form of the Advertisements published, two memorandums issued to its staff and the incomplete notifications issued to a sub-set of consumers on an ad hoc basis which do not comply with the Orders of Court issued.

100    Secondly, I accept that a sterner approach needs to be taken in sentencing with respect to the respondents’ present breaches of the Orders of Court as the breaches before me are but the latest chapter in the respondents’ history of disregarding orders of court in the present proceedings.

(a)     DJ Lim issued the DC Publication Orders and DC Consumer Notification Orders on 8 August 2022 and extended the deadline for compliance on 2 September 2022.

(b)     The Stay Applications were filed on 8 November 2022 and dismissed on 20 June 2023 by DJ Lim.

(c)     In an affidavit filed by Mr Cheng in April 2023[note: 31] in support of the Stay Applications, the respondents asserted that:

(i)       The “significant delay” in the filing of the stay Applications were due to Mr Cheng being “preoccupied with the opening of a new shop in Jurong Point” in November 2022”, being “actively involved with the year-end stock take for all Nail Palace outlets” and having “multiple meetings with Nail Palace’s leasing team and other related staff of Nail Palace”.

(ii)       The respondents had already implemented measures to comply with the DC Consumer Notification Orders by adding “a statement at the bottom of the customer registration form for new customers” and that “the new customers of the (respondent companies) are already aware of the declarations and injunctions”.

(iii)       The respondents had not complied with the DC Publication Orders because the DC Publication Orders “would essentially be informing the larger society of the declarations and injunctions made against a practice that the (respondents are) no longer engaged in”, “would hurt the business and reputation of the (respondent companies)” and “would negatively impact the growth of the (respondent companies’) business”; and

(iv)       A stay of execution pending the hearing of the appeals would ensure that the respondent companies are not unfairly prejudiced by the orders made by DJ Lim.

(d)     The position taken by the respondents in the affidavit above, clearly reflect that they were duly notified and aware that they had to comply with the orders issued by DJ Lim but had chosen to prioritise their business operations over compliance and elected not to comply with the existing orders against them pending the resolution of the appeals filed against the DC Publication Orders and the DC Consumer Notification Orders.

(e)     However, in the reply affidavits filed by Mr Cheng (on behalf of all the respondents) in these applications, he claimed that their previous solicitors “KSCGG, (had) verbally advised the (respondent companies) and (him) that the compliance with the orders made by District Judge Elaine Lim Mei Yee could be postponed until the stay of execution had been decided”[note: 32]. On this basis, the respondents claim that they were “therefore acting under the honest and reasonable failure to understand that the act of filing the Notice of Appeal did not act as a stay of execution”

(f)     KSCGG has denied the above by way of a letter dated 5 January 2024[note: 33] in which it has stated unequivocally that their firm “did not advise Nail Palace that they did not need to comply with the order made” by DJ Lim and had in fact taken out a stay application on behalf of the respondent companies.

(g)     Given the chain of events and evidence placed before me on this issue, I am compelled to find that the respondents did not honestly and/or subjectively fail to appreciate that they were not entitled to a stay of execution pending appeal.

(i)       The position taken by the respondents in the affidavits filed for the Stay Application, clearly reflect that they were duly notified that they had to comply with the orders issued by DJ Lim and had merely elected not to do so at all, adequately and/or in a timely fashion.

(ii)       If the respondents had honestly held the belief and/or were advised that the orders issued by DJ Lim were suspended pending appeal, there would have also been no necessity for the Stay Applications to have been filed in November 2022 when the appeals against DJ Lim’s orders were filed on 14 September 2022.

(h)     As such, I accept the applicant’s arguments that from September 2022 to July 2023, notwithstanding the fact that they had failed in their attempts to obtain a stay, the respondents had:

(i)       Intentionally and egregiously made no attempts to comply with the DC Publication Orders;

(ii)       only (at best) taken minimal and incomplete steps to comply with but had not complied with the DC Consumer Notification Orders; and

(iii)       displayed a flagrant disregard for the orders of court issued by DJ Lim in August and September 2022.

101    Thirdly, I am also of the view that a custodial sentence is appropriate as the prejudice caused as a result of the continuing breach by the respondents is substantial, not reversible, cannot be remedied by a fine or costs and has impacted the public at large.

(a)     In the present case, there is a public interest to the Orders of Court sought and obtained by the applicant.

(b)     As part of the duties entrusted to it as a statutory board to enforce the CPFTA, the applicant had obtained declarations and injunctions from DJ Lim to prevent NPBPP and NPSM from inter alia making misleading misrepresentations and/or omitting to inform a consumer that certain products were included in the price of a treatment package.

(c)     The accompanying orders mandating publication and consumer notifications were issued and obtained to ensure: (i) prompt and adequate publicity of the injunctions and declarations issued against the respondent companies; and (ii) consumers intending to engage the services of the respondent companies were duly notified of the said declarations and injunctions before they elected to exercise their right to enter into a contract with the respondent companies.

(d)     The prejudice caused by the respondents’ breach is therefore clearly not limited to the applicant but extends to the public and consumers in Singapore who have to date:

(i)       Not received the benefit and protection which should have been afforded to them by the HC Publication Orders and the HC Consumer Notification Orders since 28 July 2023; and

(ii)       Not been completely, properly and/or duly notified of the declarations and injunctions issued against the respondent companies by DJ Lim since September 2022.

(e)     The nature of the harm caused by the respondents’ breach is clearly substantial, irremediable and is harm that in my view is not capable of being monetarily quantifiable or being ameliorated by the payment of damages or costs or fines by the respondents thereby rendering fines an insufficient and inappropriate mode of punishment and a suspended sentence unsuitable.

102    In the circumstances and for all the reasons above, I am of the view that this is a necessary and appropriate case for a custodial sentence to be imposed.

The appropriate sentences

103    The respondents have referred to the two cases of Rohrlach Nicolas Robert Adam v Qantas Airways Ltd [2022] 4 SLR 983 at [68] (“Rohrlach”) and Baker Michael A (executor of the estate of Chantal Burnison, deceased) v BCS Business Consulting Services Pte Ltd and others [2024] SGHC(I) 2 at [57] (“Baker Michael”) as appropriate sentencing precedents for the present matter.

104    I am however of the view that these 2 cases can be distinguished as the factual matrix in the present matter is significantly different from those found in Rohrlach and Baker Michael.

(a)     In Rohrlach, a former employee was given a fine of S$25,000 for breaching an interim prohibitory injunction. However, in Rochlach, there were only two isolated incidents of breach found by the court (Rohrlach at [63]), the other party in the matter had suffered no prejudice (Rohrlach at [65]) and there is no element of public interest.

(b)     In Baker Michael, the director of a company was fined S$80,000 for breach of an anti-suit injunction. However, unlike the present case, there was no public element and no prejudice suffered by the innocent party as the defendants in Baker Michael did not manage to obtain the advantage they wished to obtain despite the breach of the anti-suit injunction (Baker Michael at [33] and [65]).

105    The applicant has highlighted 3 cases as relevant sentencing precedents for my consideration.

(a)     In OCM Opportunities, 6 months imprisonment was imposed on each of the contemnors. In that case, the contemnors breached a mareva injunction, a permanent injunction, and cross-examination orders by failing to disclose assets and attend court for cross-examination. The breaches by the contemnors were on a continuing basis and continued up to the time of the hearing of the committal proceedings. In OCM Opportunities, the defendants had also not purged their contempt but had remained uncooperative, deliberate and contumacious in breaching the terms of the orders.

(b)     In Maruti Shipping Pte Ltd v Tay Sien Djim [2014] SGHC 227 (“Maruti Shipping”), 6 months imprisonment was imposed on the first defendant and a S$10,000 fine was imposed on the company. In Maruti Shipping, the contemnor had breached a mareva injunction by withdrawing $380,000 from his account and failing to file the necessary documents in compliance with his disclosure obligations under an Anton Piller order and Mareva injunction. He also breached an Anton Piller order by preventing the execution of the said order and failing to allow the plaintiff to enter the premises. In Maruti Shipping, the court also took into consideration the fact that the first defendant was a “repeat offender” who had previously been imprisoned 3 months for the breach of a mareva injunction.

(c)     In Toyota Tsusho (Malaysia) Sdn Bhd v Foo Tseh Wan [2017] 4 SLR 1215 (“Toyata Tsusho”), the third defendant director had breached his obligations under a Mareva injunction by filing several affidavits in purported compliance with the order which were thereafter found to be unconvincing and lacking credibility (at [49]). The court in Toyota Tsusho imposed 3 months imprisonment with a 10-day suspension to afford the contemnor a final opportunity to purge his contempt by complying with the disclosure order.

106    Having regards to the precedents above, the facts of the present case and the nature of the continuing breaches committed by the respondents from September 2022 to date, I am of the view that the submissions made by the applicant on the appropriate sentences to be imposed are reasonable.

Conclusion

107    For the reasons above, with respect to Summons No 2849 of 2023 and Summons No 2850 of 2023:

(a)     I find that NPBPP is guilty of contempt of court in that NPBPP has breached paragraphs 2 and 3 of the Order of Court dated 28 July 2023 (HC/ORC 3513/2023). NPBPP is fined $15,000 to be paid within 4 weeks;

(b)     I find that NPSM is guilty of contempt of court in that NPSM has breached paragraphs 2 and 3 of the Order of Court dated 28 July 2023 (HC/ORC 3515/2023). NPSM is fined $15,000 to be paid within 4 weeks; and

(c)     I find that Mr Cheng is guilty of contempt of court in that he was and is as an officer of the respondent companies who knew or ought reasonably to have known that the actions of the respondent companies in breach of paragraphs 2 and 3 of the Orders of Court dated 28 July 2023 (HC/ORC 3513/2023 and HC/ORC 3515/2023) would be or was being committed and had failed to take reasonable steps to prevent or stop the commission of that contempt of court. I commit him to 4 months imprisonment in Changi Prison.

108    I will now hear parties on costs.

[note: 1]Applicant’s written submissions filed on 19 March 2024 (“AWS”) at Section H

[note: 2]Respondents’ written submissions filed on 19 March 2024 (“RWS”) at [2]

[note: 3]RWS at [2] and [16] to [19]

[note: 4]Affidavits filed by Mr Kaiden Cheng on 8 January 2024 in OSS 285 (“OSS 285 Reply Affidavit”) and OSS 286 (“OSS 286 Reply Affidavit”) (hereinafter to be collectively referred to as “Reply Affidavits”) at [6] and RWS at [2] to [4]

[note: 5]CWS at sections E, J.1, J.4 and J.5

[note: 6]RWS at [2] and [4]

[note: 7]RWS at [4]

[note: 8]Exhibit P4

[note: 9]RWS at [5]

[note: 10]RWS at [5]

[note: 11]Reply Affidavits at [6]

[note: 12]Reply Affidavits at [6] and RWS at [3]

[note: 13]Reply Affidavits at [5]

[note: 14]Notice of Appointment of solicitor filed on 19 October 2022

[note: 15]Reply Affidavits at page 8

[note: 16]Reply Affidavits at pages 9 and 10

[note: 17]Xie Junhao’s two affidavits filed on 24 November 2022 in support of the applications filed in OSS 285 and OSS 286 (“XJH 1st Affidavit”) at pages 39 to 47

[note: 18]Four affidavits filed by Ms Chue Qian Qi, Shu-Ann and Ms Yvonne Goh Jia Yu on 24 November 2023 in OSS 285 and OSS 286.

[note: 19]RWS at [7]

[note: 20]Reply Affidavits at [7], OSS 285 Reply Afft at pages 11 to 69 and OSS 286 Reply Afft at pages 11 to 128

[note: 21]RWS at [10]

[note: 22]Reply Affidavits at page 11

[note: 23]OSS 285 Reply Affidavit at page 70

[note: 24]RWS at [10]

[note: 25]Exhibit P6

[note: 26]OSS 285 Reply Affidavit at pages 15 to

[note: 27]OSS 285 Reply Affidavit at page 46

[note: 28]Reply Affidavits at [7] and RWS at

[note: 29]AWS at sections H and I

[note: 30]RWS at [2], [19] and [20]

[note: 31]Exhibit P6

[note: 32]Reply affidavits at [5.d.] and [5.e.]

[note: 33]Reply affidavits at pages 9 and 10

"},{"tags":["Criminal Law – Offences – Sexual offences – Voyeurism","Criminal Procedure and Sentencing – Sentencing – Forms of punishment","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-10-18","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904085 of 2024 & 2 Others","title":"Public Prosecutor v Ng Dick Soan","citation":"[2024] SGMC 72","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32357-SSP.xml","counsel":["Samuel Chew (Attorney-General's Chambers) for the Public Prosecutor","Lim Wen Yang, Bryan (Hoh Law Corporation) for the Accused."],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ng Dick Soan

Public Prosecutor v Ng Dick Soan
[2024] SGMC 72

Case Number:Magistrate Arrest Case No 904085 of 2024 & 2 Others
Decision Date:18 October 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Samuel Chew (Attorney-General's Chambers) for the Public Prosecutor; Lim Wen Yang, Bryan (Hoh Law Corporation) for the Accused.
Parties: Public Prosecutor — Ng Dick Soan

Criminal Law – Offences – Sexual offences – Voyeurism

Criminal Procedure and Sentencing – Sentencing – Forms of punishment

Criminal Procedure and Sentencing – Sentencing – Principles

18 October 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       This is a case of voyeurism perpetrated by a head of department of a company against his direct subordinate by taking upskirt recordings of her. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       At the time of the offence, the accused, Ng Dick Soan (“Mr Ng”), currently a 51-year-old Malaysian who is also a Singapore Permanent Resident, was a head of department and the victim’s direct superior at the company where they both worked. As they lived close to each other, Mr Ng offered to fetch the victim to work whenever they needed to be at the office. On 12 April 2023, Mr Ng drove them to work. While climbing a flight of stairs from the carpark to the office, Mr Ng, who followed the victim from behind, took upskirt recordings of her by holding his handphone underneath her dress with its in-built camera facing upwards between her legs. Mr Ng’s actions were captured on video by a fellow colleague who had witnessed him take upskirt recordings of the victim on two other earlier occasions in March 2023. That colleague subsequently reported Mr Ng to the company and following internal investigations, the company in turn reported the matter to the police.

Charges and prescribed punishment

3       Mr Ng has pleaded guilty to a charge of voyeurism under section 377BB(4) of the Penal Code 1871 (2020 Rev Ed) (“PC”) for taking upskirt recordings of the victim with his handphone on 12 April 2023, while knowing that she did not consent to Mr Ng operating his handphone with that intention. He has also consented to have two similar charges taken into consideration for the purpose of sentence (“TIC”) in respect of the other two occasions in March 2023.

4       The punishment prescribed by section 377BB(7) of the PC for voyeurism is imprisonment for up to two years, a fine, caning, or any combination of such punishments. Although Mr Ng is ineligible to be caned, an imprisonment term not exceeding 12 months in lieu of the caning can be imposed on him as additional punishment: section 325(2) of the Criminal Procedure Code 2010 (2020 Rev Ed).

Parties’ positions

5       Mr Ng has no criminal antecedents.

6       The prosecution has sought to impose a sentence of eight to 12 weeks’ imprisonment on him on the basis of:

(a)     its low harm-low culpability assessment of the case;

(b)     its starting point sentence of ten to 15 weeks’ imprisonment that pegs:

(i)       harm at the lower end of the ‘low harm’ spectrum, and

(ii)       Mr Ng’s culpability at the highest end of the ‘low culpability’ spectrum because of:

(A)       the serious breach of trust that the victim had reposed in him as her superior,

(B)       some degree of premeditation involved in the commission of the offence, and

(C)       the subjective knowledge that the victim did not consent to him taking such upskirt videos of her;

(c)     an uplift of two to three weeks’ imprisonment to the starting point sentence to account for the aggravating presence of two similar TIC charges;

(d)     a full 30% reduction in sentence for Mr Ng’s early indication of guilty plea; and

(e)     an application of relevant case authorities in the light of a breach of trust and the presence of similar TIC charges that are the distinguishing features of the present case.

7       The defence has sought a sentence of not more than seven days’ imprisonment, if not a fine, for Mr Ng based on the specific circumstances of the present offence being on the less severe of the low harm-low culpability spectrum because of:

(a)     a lower degree of invasion of the victim’s privacy;

(b)     the absence of physical contact with the victim during the course of the offence;

(c)     the absence of any stalking or following of the victim;

(d)     the lack of premeditation on Mr Ng’s part and the lack of sophistication in committing the offence;

(e)     potential harm of dissemination or circulation limited by Mr Ng having deleted the recordings;

(f)     Mr Ng’s genuine remorse and contrition shown by his admission to the company of wrongdoing that led to the subsequent termination of his employment, his apology to the victim, his full cooperation with the police, and his guilty plea;

(g)     Mr Ng’s clean past record;

(h)     the hardship caused by the offence and the effects of court proceedings;

(i)     Mr Ng’s strong propensity for reform by channelling his energy in a positive manner and setting up a new consultancy company two weeks after his termination; and

(j)     a downward calibration of the sentences in Tan Siew Chye Nicholas v PP (“Nicholas Tan”) [2023] 4 SLR 1223 and PP v Aung Myint [2023] SGMC 93 that ought to be considered for the present case.

Court’s decision

8       After convicting Mr Ng on 14 October 2024, I reserved my judgment on sentence. I now sentence Mr Ng to seven weeks’ imprisonment. I set out the reasons for my decision.

Issues to be decided

9       Applying the Nicholas Tan sentencing framework for offences of voyeurism under section 377BB(4) of the PC, there are three main issues I have to decide in this case.

Operative sentencing principles; forms of punishment; starting point sentence and adjustments to be made

10     They are:

(a)     the operative sentencing principle for the present offence;

(b)     whether a fine is an appropriate sentence to consider for the offence; and

(c)     the starting point sentence having considered the offence-specific harm-culpability factors, as well as the adjustments to be made having regard to the offender-specific aggravating and mitigating factors personal to Mr Ng.

11     I resolve the issues in this way:

(a)     deterrence is generally the dominant sentencing consideration and it is therefore incumbent on the sentencing court to send a stern and unequivocal signal, on behalf of society, that voyeurism such as the present offence will not be tolerated: Nicholas Tan at [42] and [43];

(b)     the retention of such emphasis on deterrence leads to the result that the sentences imposed for section 377BB(4) PC cases would likely include an imprisonment term: Nicholas Tan at [49]. Indeed, section 377BB(4) PC cases will typically cross the custodial threshold given the intrinsic seriousness of the offence. Although I agree with the parties and arrive at the same low harm-low culpability assessment for this case, it is not in the “less severe of the low harm-low culpability cases that a fine may sufficiently advance the sentencing objective of deterrence”: Nicholas Tan at [86]; and

(c)     considering the offence-specific factors, I assess the level of harm to be at the lower end of the ‘low harm’ spectrum, but the level of Mr Ng’s culpability to be at the higher end of the ‘low culpability’ spectrum. The circumstances of the present offence are such that the custodial threshold is crossed and there is nothing about the case that suggests the interests of deterrence would be adequately met by the imposition of a fine: Nicholas Tan at [98]. I assess the starting point sentence to be eight weeks’ imprisonment, and apply an upward adjustment of two weeks’ imprisonment to take into account the aggravating presence of the two similar TIC charges. I then accord the full 30% reduction in sentence for Mr Ng’s early indication of guilty plea. This is somewhat demonstrative of genuine remorse and contrition, which is generally consistent with Mr Ng’s admission of wrongdoing to the company that led to the subsequent termination of his employment, his apology to the victim and his cooperation with the authorities, though this is militated by the fact that he was caught red-handed as the present offence was captured on video by a colleague. More importantly, he has spared the victim of having to testify against him in a trial.

12     The sentence reflects Mr Ng’s overall qualitative criminality viewed through the specific dual lens of the breach of trust and the aggravating presence of similar TIC charges in this case.

Analysis of issues

13     I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing consideration for voyeurism offence

14     Deterrence is generally the dominant sentencing consideration for a voyeurism offence under section 377BB(4) of the PC and it would rarely be the case that emphasis would shift away from deterrence to rehabilitation even where the offender has demonstrated an extremely strong propensity for reform: Nicholas Tan at [42] and [48].

15     It behoves the sentencing court to send a stern and unequivocal signal, on behalf of society, that voyeurism will not be tolerated because it:

(a)     offends the sensibilities of the general public and triggers unease;

(b)     involves an appalling attempt to invade the victim’s privacy and is an affront of our society’s fundamental value that no one should have to suffer the indignity of having his or her modesty outraged or insulted; and

(c)     affects the extent to which members of the public feel safe as they go about their daily life: Nicholas Tan at [43].

16     Harm caused in the form of significant emotional distress suffered when a victim becomes aware of falling prey to voyeurism, or even where there is no such awareness but when there is potential for dissemination and retention of recordings in which victims are identifiable, brings general and specific deterrence to the fore: Nicholas Tan at [44] and [45].

17     The commission of a voyeurism offence generally involves a degree of furtiveness, planning and premeditation on the part of the offender that warrants the imposition of deterrent sentences: Nicholas Tan at [46]. The imposition of stiff sentences is timely and necessary to curb voyeurism offences that are easy to commit but difficult to detect with technological advancements that have facilitated the ease with which such offences can be stealthily committed: Nicholas Tan at [47].

Issue 2: Fine not appropriate punishment for voyeurism offence

18     The retention of such emphasis on deterrence leads to the result that the sentences imposed for section 377BB(4) PC cases would likely include an imprisonment term: Nicholas Tan at [49]. Indeed, section 377BB(4) PC cases will typically cross the custodial threshold given the intrinsic seriousness of the offence, unless they lie at the less severe end of the low harm-low culpability spectrum such that a fine may sufficiently advance the sentencing objective of deterrence: Nicholas Tan at [86].

19     Although I agree with the parties and arrive at the same low harm-low culpability assessment for this case, it is not in the less severe of the low harm-low culpability cases. The circumstances of the present offence are such that the custodial threshold is crossed and there is nothing about the case that suggests the interests of deterrence would be adequately met by the imposition of a fine: Nicholas Tan at [98]. The defence has submitted Mr Ng’s strong propensity for reform. The efforts that have been detailed in relation to rebuilding his life and his career are a necessary consequence or outcome of his criminal behaviour, but says nothing about addressing the root cause(s) of his offending behaviour and the prevention of future offending. Even taking the defence case at its highest in this regard, it would be rare for the emphasis to shift from deterrence to rehabilitation on the ground of the offender’s strong propensity for reform; this was not a truly exceptional case to warrant this: Nicholas Tan at [48].

Issue 3(a): Starting point sentence of seven months’ imprisonment based on low harm-low culpability assessment

20     Considering the offence-specific factors, I assess the level of harm to be at the lower end of the ‘low harm’ spectrum, but the level of Mr Ng’s culpability to be at the higher end of the ‘low culpability’ spectrum.

21     Given that I have already ruled out a sentence of fine as a form of punishment, the indicative range of imprisonment for an offence involving low harm and low culpability is up to four months’ imprisonment: Nicholas Tan at [83]. The starting point sentence within that range that reflects the lower end of the ‘low harm’ spectrum and the higher end of the ‘low culpability’ spectrum is eight weeks’ imprisonment.

Harm caused is at lower end of ‘low harm’ spectrum

22     The parties have agreed that the harm caused is at the lower end or the less severe of the ‘low harm’ spectrum. I too agree. I have previously expressed that less egregious ‘upskirt’ or ‘down-blouse’ offences can reside at the lower end of the low harm spectrum: PP v JCZ [2024] SGMC 57 at [16]. In this case, the invasion of privacy was confined to the observation of the victim’s buttocks and underwear. The victim was not made aware that she had fallen prey to voyeurism at the time of the offence. It is also undisputed that there was no physical contact with the victim during the offence. The prosecution has however disputed the defence’s categorisation of Mr Ng’s motive for deleting the recordings as being driven by remorse. The point, as rightly submitted by the defence orally, is that at the very least, such deletion minimised any potential harm by limiting any danger of dissemination or storage of the recordings.

Mr Ng’s culpability is at higher end of ‘low culpability’ spectrum

23     Parties part company in their assessment of Mr Ng’s culpability. The prosecution has pegged this at the “highest end” of the low culpability spectrum, whereas the defence has pegged this at the “less severe” of the low culpability spectrum. I am more inclined towards the prosecution’s view in this regard and assess Mr Ng’s culpability to be at the higher end of the low culpability spectrum for four reasons:

(a)     first, as the prosecution has submitted, Mr Ng had actual knowledge that the victim did not consent to the offending conduct and his culpability is therefore higher: Nicholas Tan at [77];

(b)     second, the defence has contended that there was no premeditation on Mr Ng’s part and that and he had committed the offence on the spur of the moment. But as the prosecution has rightly submitted, this is contradicted by his admission that a previous accidental ‘upskirt’ recording of the victim made him think that he could take such recordings on subsequent occasions. The operation of a mobile phone with an in-built camera is also strongly indicative of Mr Ng’s intent to make a record of the victim (which he also did eventually make): Nicholas Tan at [78];

(c)     third. the defence has contended the lack of sophistication in the manner in which Mr Ng had committed the offence. But what he lacked in sophistication, Mr Ng certainly made up in sheer doggedness and persistence in offending, as is evident from the manner in which he had committed the offence that were captured on video by his colleague. As can be seen, he went to great lengths to position his mobile phone underneath the victim’s dress with great furtiveness and without detection, and all the while climbing up the stairs behind her.

(d)     it is undisputed that the victim was neither stalked nor followed. Mr Ng was known to the victim and they shared a close working relationship. Indeed, the victim had willingly hitched a ride from Mr Ng on the day of the offence and was climbing the stairs with him to head to the office from the carpark. But as the prosecution has submitted, there is a serious breach of a relationship of trust in this case. The fact that an accused had abused his colleagues’ trust in filming upskirt videos at the workplace, especially where the victims could reasonably expect an environment of safety and mutual respect, is an aggravating factor: PP v Lau Zongming [2021] SGMC 71 at [56]. This applies with greater force in this case. Mr Ng and the victim are not peers or merely colleagues; Mr Ng had in fact perpetrated the offence as the victim’s direct superior against her at the workplace.

Issue 3(b): Upward and downward adjustments to starting point sentence

24     Adjustments to the starting point sentence are to be made to account for the aggravating presence of TIC charges and the mitigatory weight to be given to Mr Ng’s early indication of guilty plea.

Aggravating presence of TIC charges

25     To account for the aggravating presence of the two similar TIC charges, I apply an upward adjustment of two weeks’ imprisonment. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37]. Indeed, they are egregious because they establish a clear pattern of re-offending against the same victim for the same type of voyeurism offence. Specific deterrence therefore also applies in this case.

Mr Ng not to be regarded as first offender

26     Although Mr Ng does not have any prior convictions, I do not regard him as a first offender because he has committed multiple offences in this case: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

Hardship suffered as a result of offence and sentence not mitigatory

27     It is trite law that hardship suffered as a result of criminal conduct and being held accountable for such conduct carries little or no mitigatory weight. This is necessarily the outcome for engaging in criminal conduct and it is par for the course for any offender to bear the full brunt of the consequences that follow such conduct. It would otherwise be perverse to ameliorate the effects of criminal wrongdoing for which the offender is responsible in the very first place.

Full 30% reduction in sentence for early indication of guilty plea

28     Decidedly in Mr Ng’s favour is his early indication of guilty plea, for which I accord him the full 30% reduction in sentence, as recommended by the Sentencing Advisory Panel in its guidelines in this regard, because:

(a)     first, this is somewhat demonstrative of genuine remorse and contrition, which is generally consistent with:

(i)       his admission of wrongdoing to the company that led to the subsequent termination of his employment,

(ii)       his apology to the victim; and

(iii)       his cooperation with the authorities,

though this is militated by the fact that he was caught red-handed as the present offence was captured on video by a colleague; and

(b)     second, and more importantly, he has spared the victim of having to testify against him in a trial.

29     The final sentence to be imposed for Mr Ng’s voyeurism offence is therefore seven weeks’ imprisonment.

Issue 3(c): Application of case authorities

30     In support of its submission for a seven-day imprisonment term, the defence has argued that a downward calibration of the sentences in Nicholas Tan and Aung Myint [2023] SGMC 93 ought to be considered for the present case that seemingly features less egregious facts. I agree with the prosecution that a more nuanced application of relevant case authorities is called for through the specific dual lens of a breach of trust and similar TIC charges that are the two distinguishing features of the present case that set it apart from other cases.

Sentencing a fact-sensitive exercise encompassing determination of criminality in both quantitative and qualitative aspects

31     When embarking on the exercise of applying relevant case authorities, I sound the same caution as I did in PP v Andy Oie Zheng Jie [2024] SGDC 238 at [37]-[38] (which I reiterated in PP v Tan Boon Hiang [2024] SGDC 269 at [22]) about adopting too granular an exercise in this regard and over-emphasising linear quantitative proportionality over the qualitative criminality of the accused:

Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: [PP v Lim Beng Kim, Lulu [2023] SGDC 9] at [29].

It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Mr Ng’s overall qualitative criminality “changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases”: Andy Oie at [40], and the decisive factors in this regard, as correctly identified by the prosecution, are the serious breach of the relationship of trust and the aggravating presence of the two similar charges that point to a disturbing pattern of deliberate and targeted re-offending against the very same victim under his charge.

Conclusion

32     In summary, I sentence Mr Ng to seven weeks’ imprisonment on the voyeurism charge.

Aggregate sentence of seven weeks’ imprisonment imposed for voyeurism

33     The sentence is derived from:

(a)     a starting point sentence of eight weeks’ imprisonment, having assessed –

(i)       the level of harm to be at the lower end of the ‘low harm’ spectrum, and

(ii)       the level of culpability to be at the higher end of the ‘low culpability’ spectrum,

(b)     an upward adjustment of two weeks’ imprisonment to take into account the aggravating presence of the two similar TIC charges; and

(c)     the full 30% reduction in sentence for Mr Ng’s early indication of guilty plea.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – s 3(1) of Protection from Harassment Act 2014 – Community based sentencing"],"date":"2024-10-17","court":"District Court","case-number":"Magistrate's Arrest Case No 905290 of 2023 & another","title":"Public Prosecutor v Tan Shi-en Nicolette","citation":"[2024] SGMC 73","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32358-SSP.xml","counsel":["Sunil Nair and Mark Chia Zi Han (Attorney-General's Chambers) for the Prosecution","Sanjiv Rajan, Christine Tee, Wee Su-ann and Ignatius Koh (Allen & Gledhill LLP) for the Defence"],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Janet Wang","html":"Public Prosecutor v Tan Shi-en Nicolette

Public Prosecutor v Tan Shi-en Nicolette
[2024] SGMC 73

Case Number:Magistrate's Arrest Case No 905290 of 2023 & another
Decision Date:17 October 2024
Tribunal/Court:District Court
Coram: Janet Wang
Counsel Name(s): Sunil Nair and Mark Chia Zi Han (Attorney-General's Chambers) for the Prosecution; Sanjiv Rajan, Christine Tee, Wee Su-ann and Ignatius Koh (Allen & Gledhill LLP) for the Defence
Parties: Public Prosecutor — Tan Shi-En Nicolette

Criminal Procedure and Sentencing – Sentencing – s 3(1) of Protection from Harassment Act 2014 – Community based sentencing

17 October 2024

Judgment reserved.

District Judge Janet Wang:

Introduction

1       It was Friday afternoon in the eastern part of Singapore. The accused, a lawyer and an avid cyclist, was cycling along a road. Ow Elaine Michele (“Ow”), is a cooking instructor. She was driving towards a mall located along the same road to conduct a cooking class for children. The incident was triggered by Ow’s manner of driving, which culminated in a series of verbal exchanges and unravelling of the events that led to charges being brought against the accused and Ow for their transgressions.

2       The accused, Tan Shi-en Nicolette, a 33- year old female Singaporean, pleaded guilty to the following charge:

MAC-905290-2023

You are charged that you, on 2 June 2023, between 3pm to 3.30pm, at along East Coast Road, Singapore, with intent to cause harassment did use threatening behaviour towards one Ow Elaine Michele, to wit, by stopping your bicycle in front of her car, aggressively confronting her, and by slightly opening the door of her car, thereby causing her harassment and alarm, and you have thereby committed an offence under s 3(1)(a) of the Protection from Harassment Act 2014, punishable under s 3(2) of the same.

3       An offence under s 3(1)(a) of the Protection from Harassment Act 2014 may be punished with a maximum fine of $5,000, or with an imprisonment term which may extend to 6 months, or with both.

4       The accused consented to a charge of causing obstruction to Ow, as well as other drivers of the vehicles behind Ow’s vehicle in a public way under s 283 of the Penal Code 1871 to be taken into consideration for the purpose of sentencing. She is untraced.

5       Ow pleaded guilty to a charge of doing a rash act endangering the personal safety of the accused under s 336(a) of the Penal Code 1871. Her case is pending sentencing before me.

6       I sentence the accused to a five-day short detention order and set out my reasons below.

Background facts

7       The accused pleaded guilty to the Statement of Facts unreservedly. The salient facts are reproduced below:

1.    On 2 June 2023, just before 3.10pm, Ow was driving along Lane 3 of Still Road South in her car (“Ow’s car”). She was headed to the mall i12 Katong (“the mall”), where she was due to teach a cooking class at 3.30pm. At the same time, the accused was cycling along Lane 3 of the same road.

2.    At about 3.12pm, the accused and Ow entered the slip road turning left from Still Road South to East Coast Road. At the apex of the bend, once they were past the zebra crossing, the accused perceived that Ow’s car was too close to her and exclaimed, “Excuse me, watch it!”, which was audible from inside Ow’s car as her rear left window was partially open. Ow exited the slip road and drove for about 400m along East Coast Road until she stopped at the cross-junction of East Coast Road and Joo Chiat Road at about 3.13pm. She stopped in Lane 2 of East Coast Road. At all material times, her car remained in Lane 2.

3.    As Ow’s car stopped at a red light, the accused caught up with Ow’s car and stood in front of it to confront Ow and prevent her from driving away. The accused and Ow got into a verbal exchange. Throughout the exchange, the accused was in front of Michele’s car and Ow was in the driver’s seat of her car. Ow decided to leave the scene and reversed, as she wanted to change lanes to the right and pass the accused. The accused tracked her movement to position herself close to the front of Ow’s car, thus leaving Ow with insufficient space to safely drive off. Ow wound her window down and informed the accused that she was late for her class. Ow then reversed again, but the accused once again moved close to Ow’s car in response to leave her insufficient space to safely drive off.

4.    At this point, Ow again informed the accused that she had a class to get to and asked her to step aside. When the accused asked if Ow had heard what she said, Ow said she did and apologised.

5.    The accused moved towards the right of Ow’s car to move to the rightmost lane, saying to Ow “Your behaviour is embarrassing”, as she did so. Simultaneously, Ow moved slightly to the left to go around the accused. As Ow accelerated slightly forward, Ow’s car came into contact with the accused’s bicycle. The accused hit Ow’s car in response and shouted at Ow, “Excuse me, you just fucking hit my bike!” Parties got into another verbal exchange, which was more heated than the first.

6.    In the course of the exchange, at about 3.17pm, the accused opened the driver’s door of Michele’s car slightly before Michele shouted at the accused, “Don’t do that, don’t fucking touch my car!”. The accused then moved to the front of Michele’s car. Michele inched her car forward and stopped. Michele then alighted from her car and, while explaining that she had a class to get to, carried the accused’s bicycle to the pavement at the side of the road. As she was doing that, the accused called the police.

7.    As the accused was trying to call the police, she stood in the middle of Lane 2 and obstructed the road. She knew that by so doing, she would cause harassment to Ow as Ow wanted to drive away but could not safely do so. Ow reversed towards the right side of Lane 2, causing the cars behind to sound their horn. The accused followed by walking forward and continuing to block the path of Ow’s car.

8.    At about 3.19pm, as the accused was still standing in front of her car, Michele inched her car forward and stopped. When the accused still refused to stand aside, Ow moved her car forward slowly, causing her car to come into contact with the accused’s legs. As she was doing so, the accused asked, “What are you doing?” After several seconds of Ow moving her car forward and causing it to come into contact with the accused’s legs, the accused jumped on the bonnet of Ow’s car and lay on it.

9.    When she did so, Ow uttered “Ok” to herself and accelerated through the cross junction with the accused still lying on the bonnet. The traffic light was green in Ow’s favour. She drove for about 100m with the accused lying on her bonnet. Throughout the journey, the accused held on to one of Michele’s car’s windscreen wipers with her left hand and pounded on the windscreen with her right, screaming for Ow to stop.

10.    Ow only stopped after she had turned left into the entrance of the mall’s carpark. As she turned left and stopped, the accused slid off her bonnet and stood on the right side of the car, still holding on to the windscreen wiper. The accused was coaxed into letting go by passers-by who had witnessed the event.

11.    The interaction between Ow and the accused throughout the incident was recorded by the in-car camera in Ow’s car, as well as partly recorded by the camera affixed to the accused’s bicycle. The in-car camera footage was retrieved in seven parts. The bicycle camera footage was retrieved in three parts. The transcripts of audible speech from both footages are annexed herein.

12.    On the same day, at about 5.43pm, the accused visited Raffles Hospital. She was diagnosed by Dr Sharen Tian (“Dr Tian”) to have suffered muscle strains affecting her neck, shoulder, and right hip. On 3 June 2023, at a follow-up appointment, Dr Tian diagnosed her with muscular neck pain and soft tissue injury in her right thigh.

13.    On 4 June 2023, Bedok Police Division contacted the accused to give a statement. On 5 June 2023, the accused went down to Bedok Police Division. She was subsequently arrested at 7.10pm. She was produced in Court 4B and released on court bail on 6 June 2023 at 3pm.

14.    The accused stopped her bicycle in front of Ow’s car, aggressively confronted her, and opened the door of Ow’s car, thereby causing harassment to Ow. The accused used the aforesaid threatening behaviour with the intent to cause harassment to Ow.

Prosecution’s submissions on sentence

8       The prosecution submits that the custodial threshold is crossed in the present case, albeit marginally, and seeks a short detention order of a period to be determined by the court.[note: 1]

9       The prosecution highlights multiple aggravating factors.[note: 2] According to the prosecution, the accused was unnecessarily aggressive and provocative towards Ow for a perceived driving infraction committed against her. The accused persisted in her harassment of Ow, despite the latter’s apology and imploration, which contributed to the escalation of the events during the incident.

Defence submissions on sentence and mitigation plea

10     The defence argues that the custodial threshold is not crossed.[note: 3] The defence seeks a fine in the range of S$1,500 to S$2,000. In the alternative, the defence seeks a short detention order of one day.[note: 4]

11     The defence highlights the medical and mental conditions of the accused. According to Dr Goh Kah Hong, Clarence (“Dr Goh”) , a senior consultant psychiatrist, who first saw her before the incident on 3 March 2023, the accused has a long history of depression from 2008 to 2013. Dr Goh diagnosed her with adjustment disorder with depressed mood.[note: 5] The accused was subsequently diagnosed with major depressive disorder on 16 March 2023, when she was found to be moderately depressed. According to Dr Goh, there was improvement in her condition with lessening of her depressed mood on 15 May 2023.

12     According to the defence, the accused experienced shock and anxiety after the incident. She was diagnosed with acute stress reaction by Dr Goh on 5 June 2023, three days after the incident. As the accused person’s state of anxiety and hyperarousal persisted over a month after the incident, she was diagnosed with post-traumatic stress disorder. The accused subsequently presented with post-concussion syndrome and was diagnosed with intracerebral brain tumour three months after the incident. She underwent surgery to excise the brain tumour on 2 October 2023.[note: 6]

13     The defence further highlights the personal and familial circumstances of the accused, in particular, that she is a caregiver of her father who suffers from a neuro-degenerative disease and that of her late mother.[note: 7] The stress and grief from the caregiving and subsequent passing of her mother from lung cancer brought on her mental health issues. According to the defence, the accused resigned from her position at a law firm due to the present court proceedings and has met with challenges in procuring gainful employment in the legal industry. The accused is involved in volunteer work with an animal charity and cycling-related social initiatives. The defence adds that the accused cooperated fully with the authorities in their investigations.[note: 8]

The appropriate sentence

Deterrence as the dominant sentencing consideration

14     Deterrence is the dominant sentencing consideration in the present case. The following relevant factors, among other non-exhaustive factors, as identified in PP v Law Aik Meng [2007] 2 SLR (R) 814 at [24] - [25], would attract the sentencing principle of general deterrence, namely:

(a)     Offences affecting public safety, public security, public health or public services; and

(b)     Offences leading to public disquiet

These factors are demonstrably present. The present offence was committed on a public road on a weekday. Vehicular traffic was moderate to high. The accused person’s acts obstructed traffic and affected public safety. Her offending conduct triggered public disquiet and unease and thus warrants a deterrent sentence.

Whether the custodial threshold is crossed

15     The harm and culpability analysis is instructive in determining whether the custodial threshold is crossed. In this premise, two principal parameters are relevant in evaluating the severity of the offence, namely, (a) the harm caused by the offence, and (b) the accused person’s culpability. ‘Harm’ is the measure of the injury and the extent of the damage which has been caused to society by the commission of the offence, while ‘culpability’ is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act ( see PP v Koh Thiam Huat [2017] 4 SLR 1099 at [41]).

16     On the degree of harm that occasioned from the accused person’s role, I consider both actual and potential harm- see Koh Yong Chiah at [51]. By stopping her bicycle in the middle of a busy thoroughfare, the accused had placed herself in a precarious position that posed a significant risk to her safety. Apart from stopping in front of Ow’s vehicle, she moved over to the driver’s side of the vehicle, regardless of the oncoming traffic in the adjacent lane. The accused was observed to be weaving in between the stationary vehicles within two lanes. Her act of opening the door on the driver’s side of Ow’s vehicle in the middle of the road posed a hazard to the safety of the driver and the risk of potential damage to the vehicle. Equally relevant is the potential harm to other road users, namely, the motorists who were also travelling along the same two-lane dual carriageway. The accused person’s actions created a potential for significant harm, having regard to the considerable vehicular traffic at the material time. It is fortuitous that no accident involving personal injury and property damage occurred.

17     Turning next to the culpability of the accused. The accused was the aggressor in the entire episode. While Ow ought to have exercised due care and consideration towards the accused, a cyclist, by maintaining a margin of safety when passing and negotiating a bend in the road, the latter’s reaction was patently disproportionate. According to the defence, the accused did not speed up and had no intention of confronting Ow. It was at the cross junction when the accused stopped her bicycle in front of Ow’s vehicle to tell the latter that she had driven in an unsafe manner by overtaking the accused at the slip road.[note: 9] Pertinently, there was a break in the chain of events which took place at the slip road and the cross junction. The lapse in space and time lends support to the fact that the accused person’s subsequent display of aggression was totally unprovoked. A window of conciliation presented itself when the co-offender apologised. Short of being placated by Ow’s apology, the accused was obdurate in her relentless pursuit of Ow. Her aggression did not abate. She refused to let Ow leave and continued to block her path of travel, despite Ow’s entreaties. This led to the escalation of the events. Her culpability was heightened by her act of causing obstruction to Ow and the drivers of the vehicles that were behind Ow’s vehicle, which is the nub of the charge she has consented to be taken into consideration for the purpose of sentencing (PP v UI [2008] 4 SLR(R) 500 at [37]-[38]).

18     As a legal professional, the accused is well versed in the traffic rules and regulations. And it was precisely her perception of a traffic violation on Ow’s part that accounted for her confrontation with the latter. She had the presence of mind to call the police. However, the accused chose to remain in front of Ow’s vehicle to prevent her from fleeing the scene. It was a misplaced sense of vigilantism that went awry.

19     In support of a fine, the defence cites among others the cases of PP v Lim Keng Tat [2018] SGMC 80 (“ Lim Keng Tat ”) and PP v Chiang Kok Wee [2021] SGMC 36 (“ Chiang Kok Wee ”).[note: 10] Notably, both cases involved offences of intentionally causing harassment in a car park and fines were imposed. In Lim Keng Tat, the offender was a private-hire car driver who pleaded guilty to a charge of using abusive words with intent to cause distress under s 3 of the Prevention from Harassment Act. The offender made left turn into the car park without waiting at the stop line, which led to the victim sounding his horn and braking to avoid a collision. The offender stopped and stared briefly at the victim before he drove into the car park. Subsequently, both the vehicles passed each other in the car park. The offender stopped his vehicle near the victim’s and stared at him. A brief verbal argument took place between them. The victim subsequently drove off and parked his vehicle in a lot. Shortly thereafter, the offender alighted from his vehicle and walked towards the victim’s vehicle to confront him. During their argument, both parties used vulgarities towards each other. The offender hurled multiple Hokkien vulgarities of an insulting nature at the victim. At the material time, the victim’s wife and young child were present. The parties did not engage in physical contact. The offender committed the offence while he was under investigation for an earlier offence involving the use of criminal force. He further consented to a similar charge under s 3(1) of the Protection from Harassment Act to be taken consideration. The prosecution sought a high fine. The court imposed a fine of $2000. The victim was issued a warning for an offence under s 3(1) of the Protection from Harassment Act.

20     In Chiang Kok Wee, the offender pleaded guilty to a charge of intentionally causing alarm to another person by uttering abusive words under s 3 of the Protection from Harassment Act, and a charge of mischief under s 427 of the Penal Code (Cap 224, 2008 Rev Ed). A further charge under s 3 of the Protection from Harassment Act for the offence of using abusive words with intent to cause harassment was taken into consideration. With respect to the s 3 of the Protection from Harassment Act charge, the offender was driving into the car park of a condominium and attempted to turn into a one-way lane against the traffic flow. At the material time, the victim was walking in the middle of the one-way lane in the car park and had stood at the white line marking the end of the lane. The victim stood in front of the offender’s car to prevent the latter from entering the one-way lane from the wrong direction. The offender drove forward and attempted to turn into the lane again, only to be blocked by the victim. The offender alighted from his vehicle and confronted the victim. He uttered abusive words and verbal threats towards the victim. In imposing a fine of $4000, the court noted that the offender committed the offence while he was under investigations for the mischief charge.

21     The present facts are far more egregious. I agree with the prosecution that the accused had demonstrated a sustained pattern of aggressive behaviour towards Ow.[note: 11] She persisted in her harassment and harangue of Ow, despite the latter’s apology and repeated pleas. Her acts of aggression ran the gamut from deliberately placing her bicycle in front of Ow’s vehicle and obstructing her in her path of travel to opening Ow’s vehicle door in a threatening manner, alongside the utterance of harsh and abusive words, as reflected in the transcripts of the verbal exchanges that took place between the accused and Ow. These place her culpability at a higher level than that of the offenders in the above cited precedents involving an isolated occasion where abusive, threatening and insulting words were employed by the offenders. The incident took place on a weekday at the cross junction where the volume of vehicular and human traffic was considerably higher than that in the car parks. The accused person’s acts also affected the other road users travelling the same road. This in turn translates to a greater measure of harm. In light of these aggravating factors, the custodial threshold is breached.

Whether a short detention order is appropriate

22     A short detention order is a community-based sentence. This is prescribed in s 348 of the Criminal Procedure Code 2010 (“CPC”). Section 348 of the CPC provides as follows:

Short detention orders

348.—(1)    Where an offender who is 16 years of age or above is convicted of an offence, and if the court by or before which he or she is convicted is satisfied that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may make a short detention order requiring the offender to be detained in prison for a period which must not exceed 14 days.

(2)    Sections 317 and 318 apply to a short detention order as if the order were a sentence of imprisonment passed by the court.

23     The underlying legislative intent of community-based sentencing (“CBS”) can be found in the following passage in the Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at col 422 (K Shanmugam, Minister for Law and Second Minister for Home Affairs)):

CBS gives more flexibility to the Courts. Not every offender should be put in prison. CBS targets offences and offenders traditionally viewed by the courts to be on the rehabilitation end of the spectrum: i.e. regulatory offences, offences involving younger accused persons and persons with specific and minor mental conditions. For such cases, it is appropriate to harness the resources of the community. The offender remains gainfully employed and his family benefits from the focused treatment.

While the primary focus of CBS is rehabilitative, community sentences are ultimately punitive. It was emphasised by the Minister that it is not the primary objective of community sentences to prevent moral stigmatisation (at col 568). As noted by the Minister, the short detention order, being limited to a maximum period of 14 days, is less disruptive and stigmatising than a longer prison stay (at col 426). Pursuant to s 7DA of the Registration of Criminals Act 1949, an offender’s criminal record is rendered spent on the date of completion of the community sentence.

24     In Sim Wen Yi Ernest v PP [2016] 5 SLR 207 (“Sim Wen Yi Ernest”) at [33], it was recognised that CBS options were introduced to afford greater flexibility to the courts in balancing the various sentencing principles in individual cases. The court further noted that a short custodial sentence in the form of a SDO carries a punitive and deterrent element (Sim Wen Yi Ernest at [42] – [44]). Similarly, it was observed in PP v Teo Chang Heng [2018] 3 SLR 1163 (“Teo Chang Heng”) at [17], that a short detention order has the resultant effects of the offender spending time behind bars for his misdeeds as punishment and signalling that what he did was serious and he is not being let off scot-free. The court reiterated that community sentences are ultimately punitive. The offender will be incarcerated and deprived of his liberty as a consequence of a short detention order (Teo Chang Heng at [13]- [15]).

25     In Teo Chang Heng, the offender pleaded guilty to a charge of mischief under s 426 of the Penal Code (Cap 224, 2008 Rev Ed). He deliberately caused damage to his spouse’s vehicle which was being driven by the boyfriend of his spouse at the material time. The accused had helped maintain the upkeep of the said vehicle. It transpired that the offender was angered upon the sight of his spouse’s boyfriend driving the said vehicle. He then drove past the vehicle and side-swiped it. When the driver stepped out onto the pavement to inspect the damage caused, the offender collided into the vehicle from behind. No personal injuries were caused. Neither were other vehicles affected. The offender immediately called the police and surrendered. He paid for the vehicle damage that resulted from the collision. In affirming the sentence of a ten-day short detention order and 120-hour community service order, the appellate court stated at [15] that a short detention order carries a punitive element and is inherently capable of deterring.

26     The case of Teo Chang Heng is loosely characterised by the court as a “manifestation of road rage” as the offender was provoked into a rage at the sight of his spouse’s boyfriend in her vehicle that he helped to upkeep.[note: 12] The appellate court observed that there was no compelling evidence to suggest that the respondent was potentially a menace to other road users and had inflicted or sought to inflict physical harm or bodily injury on them, as his aggression was targeted specifically at the driver and mostly at the car (at [10]). Unlike Teo Chang Heng, the “textures and nuances” of the present case are materially different (Teo Chang Heng at [8]). By her act of stopping in front of Ow’s car at the cross-junction, the accused caused obstruction to the other drivers in the vehicles behind Ow’s. She next moved to the driver’s side of Ow’s car and thus encroached on the adjacent lane with its oncoming traffic, causing the other road users to avoid her and her bicycle, in order to avert an accident. Her aggression exacerbated with her act of opening the driver’s door of Ow’s vehicle, which posed a safety hazard to other road users travelling on the adjacent lane. It is pertinent to note that unlike the offender in Teo Chang Heng, who did not infringe any other traffic rules and was not charged for any other offences involving bad driving, the accused faces another charge of causing obstruction to Ow and other drivers travelling behind Ow’s vehicle in a public way, which charge she has consented to be taken into consideration for the purpose of sentencing.

27     The present case bears more elements of road rage than Teo Chang Heng’s. In Teo Chang Heng, the driver of the car was known to the offender. His aggression was specifically targeted at the driver, who was his spouse’s boyfriend. He had used his vehicle to inflict damage on his spouse’s car out of personal vendetta and jealousy. In the present case, Ow was a complete stranger to the accused. Her display of vitriol stemmed from her unhappiness with Ow’s manner of driving and use of the road, which is a common background of most road rage cases.

Accused mental and medical conditions

No causal or contributory link

28     I next address the issue of whether the accused person’s condition of major depressive disorder and the presence of the brain tumour had caused or contributed to her offending behaviour.

29     The case of Lim Ghim Peow v PP [2014] 4 SLR 1287 (“ Lim Ghim Peow”) is instructive, where the Court of Appeal affirmed the approach in the High Court case of Ng So Kuen Connie v PP [2003] 3 SLR(R) 178 (“Connie Ng”), namely, where an offender is suffering from a mental disorder at the time of the offence, particularly if the mental disorder is causally related to the offence, the element of general deterrence may be given considerably less weight (Lim Ghim Peow at [26] ). The approach which our courts have adopted can be found in Connie Ng at [58]:

… [T]he element of general deterrence can and should be given considerably less weight if the offender was suffering from a mental disorder at the time of the commission of the offence. This is particularly so if there is a causal link between the mental disorder and the commission of the offence. In addition to the need for a causal link, other factors such as the seriousness of the mental condition, the likelihood of the [offender] repeating the offence and the severity of the crime, are factors which have to be taken into account by the sentencing judge. In my view, general deterrence will not be enhanced by meting out an imprisonment term to [an offender] suffering from a serious mental disorder which led to the commission of the offence.

While the existence of a mental disorder on the part of the offender is always a relevant factor in the sentencing process, the manner and extent of its relevance depends on the circumstances of each case, in particular, the nature and severity of the mental disorder. The Court of Appeal in Lim Ghim Peow clarified that the element of general deterrence may still be accorded full weight in some circumstances, such as where the mental disorder is not serious or is not causally related to the commission of the offence, and the offence is a serious one.

30     In his medical report of 12 September 2023, Dr Goh opined that “there is no definite and specific causal relationship” between the accused person’s illnesses and the incident. According to Dr Goh, the accused was diagnosed with major depressive disorder on 16 March 2023. He noted an improvement in her mental condition after two months on 15 May 2023. On her request, Dr Goh scheduled a further review at a later date in four months. In respect of the brain tumour, Dr Goh indicated that the onset of the tumour could not be determined but postulated the likelihood of it predating the incident. According to him, the influence of the brain tumour on the accused person’s behaviour at the material time was highly probable, given the location of the tumour in the left front region of the brain, which “ may lead to personality changes, disinhibition, and impairment of judgment ”.[note: 13] [emphasis added]

31     It is patent from Dr Goh’s report that there was no causal or contributory connection between the accused person’s mental condition and brain tumour and the commission the offence.

32     However, I find his qualification on the influence of the brain tumour on the accused person’s behaviour at the material time to be tenuous. Pertinently, his medical report is silent on whether there were actual clinical findings of impairment in the accused person’s judgment and marked changes in her personality, as well as disinhibition, in support of his contention. On the contrary, Dr Goh reported the accused as having the ability to work and engage in activities with her husband. Notably, these were communicated by the accused during the consultations leading up to the incident. Coupled with the fact that the accused was gainfully employed as a lawyer at the material time, I am not persuaded that the presence of the brain tumour had impaired her cognitive function and judgment in her professional capacity. Neither did it cause functional impairment. It is noteworthy that at the time of the incident, the accused was able to ride her bicycle and navigate the roads without difficulty. The presence of the brain tumour did not appear to have dented the quality of her life and prevented her from carrying out her daily and recreational pursuits. She was in full control of her faculties and had the presence of mind to call the police to report on Ow’s manner of driving.

33     It further bears noting that Dr Goh’s medical expertise lies in the field of psychiatry and not neurology and its related area of neurosurgery. He acknowledged in his report that the accused would likely require neurosurgery to treat the brain tumour, which she did eventually undergo. Accordingly, his views on how the presence of the brain tumour could have influenced her behaviour at the material time and was a possible contributory factor in her commission of the offence are tentative and ambiguous: see Toh Suat Leng Jennifer v PP [2022] 5 SLR 1075 at [27].

34     Similarly, the medical report of 30 December 2023 by Dr Ivan Ng Hua Bek (“Dr Ng”) is silent on the effects of the brain tumour on the behaviour of the accused. Dr Ng, a senior consultant neurosurgeon, first saw the accused after the incident on 1 August 2023. He next saw her on 7 August 2023 when she presented with symptoms of near-blacking out episodes, dizziness and the inability to focus. The accused was diagnosed with a cluster of lesions in the left frontal lobe. According to Dr Ng, the brain tumour was likely to have been present for a period of time. The accused subsequently underwent surgery of the brain tumour, which was found to be benign. Dr Ng opined that given the position of the tumour, “ it may be possible that this could lead to issues of cognitive function and executive brain functioning that could lead to her behaviour leading up to the accident”.[note: 14] [emphasis added]

35     To my mind, these are mere suggestions. In the absence of clinical findings and established medical literature, these are ambiguous and fail to establish a clear causal or contributory link between the brain tumour and her commission of the offences. Given the lack of clarity in their medical reports, I directed further clarification to be obtained from the doctors.

36     In their further clarificatory medical reports, it is pertinent to note that the doctors did not definitively state that there was direct causal or contributory link between the accused person’s conditions, namely, the brain tumour and major depressive disorder and the present offences.

37     In his further report of 1 July 2024, Dr Ng clarified that while it was possible that the presence of the brain tumour contributed to her commission of the offence, it was unlikely. He added that the possibility of this leading to her offending behaviour was less than 50%.[note: 15]

38     Dr Goh maintained in his further report of 20 June 2024 that there was no definite and specific causal relationship between the accused person’s major depressive disorder and brain tumour and the incident. He was unable to state quantitatively the likelihood of the influence of the brain tumour on her behaviour at the material time occurring.[note: 16] Dr Goh further relied on an article in the following medical journal: World Journal of Psychiatry - Psychiatric aspects of brain tumours: A review. Of particular relevance is the following passage in the journal article:

“Brain tumours as the primary cause of psychiatric symptoms are a rare occurrence. The rarity of this condition, insidiousness of the disease process, vague of signs pointing to several causative factors all contribute to the diagnostic challenges. Diagnosis of psychiatric symptoms being secondary to brain tumours starts from having the clinical suspicion…”[note: 17]

[emphasis added]

On this note, I observe that Dr Goh did not allude to such clinical suspicion as the presence of brain tumour being the primary cause of the accused person’s psychiatric symptoms in his medical report. The accused was diagnosed with brain tumour in the left frontal lobe of the brain on 5 September 2023. Dr Goh was apprised of the diagnosis subsequently. He was unable to ascertain the onset of the brain tumour, but opined that it likely predated the incident on 2 June 2023. Any clinical suspicion of the presence of a brain tumour had eluded him over the course of his examination of the accused leading up to the incident.

39     In my view, these clarifications only serve to reiterate the lack of causal link between the accused person’s mental condition and brain tumour and the commission of the offence. Accordingly, the element of general deterrence must be accorded full weight in these circumstances.

40     Notably, the defence concedes the absence of contributory link between the accused medical condition and her offending conduct.[note: 18] The defence further acknowledges that her medical and mental health conditions do not absolve her of liability.[note: 19] Nonetheless, the defence maintains that the custodial threshold is not crossed and seeks a fine in the range of $1500 to $2000.[note: 20]

Offender specific factors

41     To her credit, I note in her favour the accused person’s early plea of guilt and her full cooperation with the authorities during the investigations, coupled with her clean record. However, in the light of overwhelming evidence presented in the camera footages, alongside the public disquiet triggered by the publicity generated from the theatrics of the accused and Ow on a public road, the plea of guilt is a Hobson’s choice for the accused. This is akin to being caught red-handed. As observed by the High Court in Public Prosecutor v Tan Fook Sum [1999] 1 SLR(R) 1022 at [33], there is no mitigating value in a plea of guilt if the offender pleaded guilty in circumstances knowing that the prosecution would have no difficulty proving the charge against him; or if he had been caught red-handed. In this regard, her guilty plea is attenuated.

42     I am mindful of the injuries sustained by the accused when she rode on the bonnet of Ow’s moving vehicle. She was diagnosed with muscular neck strains affecting her neck, shoulder and righ hip, as well as muscular neck pain and soft tissue injury in her right thigh.[note: 21] Notably, these injuries were of a minor nature and did not require invasive medical intervention. She was treated conservatively. According to Dr Ng, the accused likely suffered a post-concussion syndrome from an acceleration-deceleration injury of the brain with associated mild whiplash injury and was treated symptomatically.[note: 22] She further developed acute stress disorder from the incident, which diagnosis was changed to one of post-traumatic stress disorder owing to the subsistence of her symptoms of anxiety, panic attack and hypervigilance, as well as her heightened state of irritability and frustration.[note: 23] However, these are of limited mitigating weight. While Ow was not without blame, the accused was in large part responsible for her plight. She was the aggressor from the outset and throughout the incident. By her actions, the accused put herself in harm’s way. She was an author of her own misfortune.

43     While I note with empathy the personal circumstances of the accused, I observe that her medical and mental conditions did not impair her capacity to engage constructively as a legal professional prior to the incident. Neither do these conditions curtail her ability to carry out her daily activities including cycling. Her involvement in charity and volunteer work is commendable. Regrettably, the accused did not extend a modicum of that goodwill and charity shown towards her fellow cyclists and animals to a fellow road user. The glare of public security that is brought to bear on the accused is an inevitable consequence attendant on her actions. It is settled law that such hardship bears little, if any, mitigating value, except in the most exceptional circumstances: Lai Oei Mui Jenny v PP [1995] 2 SLR (R) 406 at [11]; PP v Yue Mun Yew Gary [2013] 1 SLR 39 at [67]-[68]. Citing these cases in Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [75], Sundaresh Menon CJ observed that “each case will have to be decided on its own facts”, but added that “the threshold is a very high one”.

44     Contrary to the parties’ submissions, I find the circumstances leading to the commission of the offences to be far from unique. The accused and Ow had exhibited anti-social and disruptive behaviour on a public road. Both women conducted themselves dismally. Ascribing such positive a label as “unique” to criminal acts has the undesirable effect of downplaying the severity of the offences and distorting the reality of the situation. As observed from the extensive video footage captured on the cameras, the incident resulted from a confluence of irresponsible driving and inconsiderate use of the road by both the accused and Ow.

45     In her brazen act of confronting Ow over what she perceived to be a traffic infraction and an affront to her personal safety, the accused was equally guilty of violating traffic rules and exposing herself to the risk of potential harm to her personal safety and that of other road users by obstructing public traffic. The paradox is stark. Her behaviour cannot be condoned.

46     The defence seeks a short detention order of one day in the alternative. Despite having left the length of the short detention order to the court, the prosecution did not object to the defence submission.

47     In my view, a one-day short detention period is a proverbial slap on the wrist. The accused has spent a day in remand during the investigations.[note: 24] The remand period, when considered in sentencing pursuant to s 318(5) of the Criminal Procedure Code 2010, will render nugatory a detention period of one day. The deterrent effect of a custodial sentence is blunted.

48     Taking account of the period of one day in which the accused spent in custody, I calibrate the length of the short detention order accordingly (see Vasentha d/o Joseph v PP [2015] 5 SLR 122 (“Vasentha”) at [86]).

Conclusion

49     For these reasons, I am fortified in my view that a five-day short detention order will adequately meet the interests of deterrence, while not being crushing.

50     Finally, I thank the parties for their helpful submissions in this matter.

[note: 1]Prosecution’s address on sentence at [2] and [6]-[8]

[note: 2]Prosecution’s address on sentence at [3]-[5];Prosecution’s reply to mitigation at [9] and [11]

[note: 3]Plea of mitigation, pp 18 -20

[note: 4]NE Day 1 (17 April 2024), p 20, lines 1-2

[note: 5]Annex D, Plea of mitigation

[note: 6]Plea of mitigation at [36]-[38]

[note: 7]Plea of mitigation, pp 4-6

[note: 8]Plea of mitigation at [45]

[note: 9]Plea of mitigation, pp 10-11

[note: 10]Plea of mitigation , Annex F- Table of sentencing precedents

[note: 11]Prosecution’s reply to mitigation at [9]-[11]

[note: 12]See Teo Cheng Heng at [10]

[note: 13]See Annex D, Plea of mitigation

[note: 14]Annex E, Plea of mitigation, pp 34-35

[note: 15]Annex A, Defence Further Submissions, p 11

[note: 16]Annex B, Defence Further Submissions, p 15

[note: 17]Annex B, Defence Further Submissions, p 34

[note: 18]Defence Further Submissions at [10]; see also NE (10 July 2024), p 3, lines 25-29

[note: 19]Plea of mitigation at [52]

[note: 20]Defence Further Submissions at [11]-[17]

[note: 21]SOF at [14]; see also medical report dated 17 July 2023

[note: 22]Annex E, Plea of mitigation, p 34

[note: 23]Annex D, Plea of mitigation, p 30

[note: 24]SOF at [15]

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Public Prosecutor v Brendan Ho Jun Jie
[2024] SGDC 271

Case Number:District Arrest Case No. 911859 of 2022 & 3 Others, Magistrate's Appeal No. 9140 of 2024-01
Decision Date:17 October 2024
Tribunal/Court:District Court
Coram: Brenda Chua
Counsel Name(s): Jonathan Tan Hoe En (Attorney-General's Chambers) for the Public Prosecutor; Hua Yew Fai Terence (Rex Legal Law Corporation) for the Accused.
Parties: Public Prosecutor — Brendan Ho Jun Jie

Criminal Law – Offences – Penal Code

Criminal Law – Statutory offences – Massage Establishments Act

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9140/2024/01.]

17 October 2024

District Judge Brenda Chua:

Introduction

1       The accused person, Brendan Ho Jun Jie, claimed trial to the following charges (“the CT Charges”):

DAC-911859-2022 (“the First CT Charge”)

You…are charged that you, on 21 occasions between 24 January 2020 and 24 April 2020, in Singapore, did cheat Citibank Singapore (“Citibank”), by deceiving Citibank into believing that you were authorised to make payment using the following credit card details, which fact you knew this to be false,

Type of Information

Details

Registered customer

Chan Weng Shi

Issuing bank

Citibank Singapore

Payment network

VISA

Card number

[redacted] 4422



and by such manner of deception, you dishonestly induced Citibank to deliver property to you, to wit, a total sum amounting to S$2,444.74, which sum was used to fund 21 separate transactions with Rely Singapore, Farfetch UK Ltd and Farfetch London, and Deliveroo Singapore, which transactions are summarized at Annex A to this charge, and which sum Citibank would not have done delivered had it not been so deceived, which 21 occasions taken together amount to a course of conduct, and you have thereby committed an offence punishable under Section 420 of the Penal Code (Cap 224, Rev Ed 2008), which is an amalgamated charge pursuant to Section 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC.

Annex A

S/N

Date of transaction

Details of transaction

Vendor

Amount

1.

24 January 2020

Second instalment for 1st Secretlab chair (Order ID 46903)

Rely Singapore (“Rely”)

S$154.69

2.

3 February 2020

Third instalment for 1st Secretlab chair (Order ID 46903)

Rely

S$154.69

3.

25 February 2020

Third[note: 1] instalment for 2nd Secretlab chair (Order ID 51020)

Rely

S$184.66

4.

9 March 2020

Bottega Veneta midnight calf leather wallet

Farfetch UK

S$623.00

5.

10 March 2020

Adidas Black Noir Recycled Polyester Cotton pants

Farfetch London

S$284.00

6.

15 March 2020

Off-White Black Beige Cotton top

Farfetch London

S$397.00

7.

13 April 2020

Moschino Black Polyester bag

Farfetch London

S$171.00

8.

17 April 2020

Logo Badge holder

Farfetch London

S$205.00

9.

3 March 2020

Sinn Ji Hainanese Chicken Rice

Deliveroo Singapore (“Deliveroo”)

S$22.99

10.

4 March 2020

Pizza Hut – Toa Payoh

Deliveroo

S$41.09

11.

7 March 2020

Burger King – Kitchener Complex

Deliveroo

S$14.99

12.

9 March 2020

Boon Tong Kee – Balestier

Deliveroo

S$18.72

13.

9 March 2020

Boon Tong Kee – Whampoa

Deliveroo

S$18.47

14.

14 March 2020

Yishun 925 Chicken Rice (Potong Pasir)

Deliveroo

S$15.49

15.

18 March 2020

Burger King – Kitchener Complex

Deliveroo

S$14.99

16.

18 March 2020

Boon Tong Kee – Balestier

Deliveroo

S$14.99

17.

23 March 2020

Yishun 925 Chicken Rice (Potong Pasir)

Deliveroo

S$17.09

18.

16 April 2020

Chicken Rice Box for 2

Deliveroo

S$22.93

19.

17 April 2020

Chicken Rice Box for 2

Deliveroo

S$23.13

20.

22 April 2020

Chicken Rice Box for 2

Deliveroo

S$23.13

21.

24 April 2020

Boiled Chicken Rice – 1 Person Set

Deliveroo

S$22.69

Total amount

S$2,444.74



DAC-911860-2022 (“the Second CT Charge”)

You…are charged that you, on 7 occasions between 30 April 2020 and 4 June 2020, in Singapore, did attempt to cheat Citibank Singapore (“Citibank”), by deceiving Citibank into believing that you were authorised to make payment using the following credit card details, which fact you knew this to be false,

Type of Information

Details

Registered customer

Chan Weng Shi

Issuing bank

Citibank Singapore

Payment network

VISA

Card number

[redacted] 4422



and by such manner of deception, you attempted to dishonestly induce Citibank to deliver property to you, to wit, a total sum amounting to S$161.63, which sum you intended to use to fund 7 separate transactions with Deliveroo Singapore, which transactions are summarized at Annex B to this charge, which 7 occasions taken together amount to a course of conduct, and you have thereby committed an offence punishable under Section 420 read with Section 511 of the Penal Code (Cap 224, Rev Ed 2008), which is an amalgamated charge pursuant to Section 124(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC.

Annex B

S/N

Date of transaction

Details of transaction

Vendor

Amount

1.

30 April 2020

Sinn Ji Hainanese Chicken Rice – 2 Set-Meal

Deliveroo

S$23.69

2.

4 May 2020

Burger King – Kitchener Complex – Double Mushroom Swiss Meal

Deliveroo

S$14.69

3.

4 May 2020

Boon Tong Kee – Balestier – Chicken Rice Box for 1

Deliveroo

S$15.69

4.

5 May 2020

Boon Tong Kee – Balestier – Chicken Rice Box for 1

Deliveroo

S$16.69

5.

13 May 2020

Sinn Ji Hainanese Chicken Rice – Roasted Chicken Rice – Boiled Chicken Rice

Deliveroo

S$43.69

6.

4 June 2020

Loy Kee Best Chicken Rice – Loy Kee Premium Set Menu

Deliveroo

S$23.59

7.

4 June 2020

Loy Kee Best Chicken Rice – Loy Kee Premium Set Menu

Deliveroo

S$23.59

Total amount

S$161.63



2       I convicted the accused on the CT Charges at the trial’s conclusion.

3       The accused pleaded guilty to the following charge:

MAC-905411-2022 (“the PG Charge”)

You…are charged that you, on 11 January 2021, at about 2.40 p.m., being the licensee (licence no. L/ME/000712/2020 dated 27 August 2020) of Imperial Apple Spa, an establishment for massage located at 6 Handy Road #01-01 The Luxe, Singapore, failed to ensure that your employee one Yi Jin Hua (“Yi”) did not offer to provide any sexual service to any other individual in the course of her employment at Imperial Apple Spa, to wit, by failing to ensure that Yi did not offer masturbation services to one Tan Bak Chye for S$50/-, and you have thereby committed an offence under Rule 12(1)(a) of the Massage Establishments Rules 2018 (Act 45 of 2017, S 96/2018) (“MER”) and punishable under Rule 12(2) of the MER.

4       There was another charge which was taken into consideration for the purpose of sentence for an offence under section 13(1) of the Massage Establishments Act 2017 (Act 45 of 2017) (“MEA”) and punishable under section 13(3) of the MEA.

5       For the First CT Charge, I sentenced the accused to an imprisonment term of ten months. For the Second CT Charge, I sentenced the accused to an imprisonment term of two weeks. For the PG Charge, I sentenced the accused to a fine of $2,000 in default one week’s imprisonment. I ordered the sentences for the First CT Charge and the Second CT Charge to run concurrently. The global sentence was an imprisonment term of ten months and a fine of $2,000 in default one week’s imprisonment. The fine was paid on 19 July 2024. No backdating of sentence was needed, as confirmed in court by both the prosecution and the defence counsel.

6       Pursuant to section 359 of the CPC, I ordered the accused to pay compensation of $2,444.74 to Chan Weng Shi (“Chan”) (PW4) in respect of the First CT Charge, in default one week’s imprisonment.

7       The accused is presently on bail pending appeal. The accused appealed against the conviction of the CT Charges. The defence counsel confirmed that the accused was not appealing against any of the sentences imposed or the global sentence imposed. The execution of the imprisonment term and payment of compensation was stayed pending appeal. I set out below the reasons for my decision only in respect of the accused’s appeal against the conviction of the CT Charges.

Facts that were not disputed

8       The Statement of Agreed Facts (“ASOF”) recorded the accused as a 28-year-old male Singaporean (NRIC No. SXXXX248H[note: 2] (“the accused’s NRIC”), DOB 27-07-1994). The accused resides at [redacted] Pasir Ris Drive 1 [redacted] Singapore [redacted] (“Residential Address”). His handphone number is [redacted] (“Handphone Number”). The accused used two email accounts: rakion_xxxx@hotmail.com (“Hotmail”) and br3ndanxxx@gmail.com (“Gmail”). The following facts were undisputed.

9       At the material time, the accused was working as a Personal Assistant to the Director and Co-Founder of Boogle Group Limited (“Boogle”). Boogle was located at 62 Bendemeer Road, Singapore (“the Office Address”) at the units #02-00, #06-00 and #07-00 (“the Level 7 Office Unit”).

10     The complainant, Chan, a 69-year-old male Singapore citizen, was the authorised holder of the Citibank credit card ending with 4422 (“Chan’s Card”). On 28 April 2020, Chan received an SMS from Citibank stating that an amount of S$1,758.81 was due on Chan’s Card. Chan realised that there were unauthorised charges between January 2020 and April 2020, and made a police report dated 28 April 2020 (“Chan’s Police Report”) (Exhibit P5).

11     The accused possessed various debit and credit cards issued by DBS, namely: ending with 5801 (“the accused’s 5801 Card”), ending with 9098 (“the accused’s 9098 Card”), ending with 5549 (“the accused’s 5549 Card”), ending with 6867 (“the accused’s 6867 Card”) and ending with 2051 (“the accused’s 2051 Card”) (Exhibit P6).

First CT Charge – Transactions involving Rely Singapore (“Rely”)

12     Rely is a payment service provider which allows payment for orders through instalments. On 1 December 2019, the accused registered an account with Rely (“the Rely Account”) using his full name, Residential Address, Hotmail, and the accused’s 6867 Card (Exhibit P7).

13     Two orders were made using the Rely Account in December 2019:

(a)     On 1 December 2019, a Secretlab chair for S$464.07 was ordered and delivered to the Level 7 Office Unit, with payment to be made by three interest-free instalments of S$154.69 each (Order ID 46903) (“Chair 1”).

(b)     On 25 December 2019, a Secretlab chair for S$554.00 was ordered and delivered to the Residential Address, with payment to be made by three interest-free instalments of S$184.66 each (Order ID 51020) (“Chair 2”).

14     On 23 January 2020, the payment method for the Rely Account was changed to Chan’s Card. In fact, the second instalment for Chair 1 had been overdue. A message was sent from the Rely Account to inform the support team to update the payment method to Chan’s Card, and further instruction was given for them to deduct the overdue second instalment (“the Rely Message”) (Exhibit P12):

“Rakion xxxx Jan 23 2020 23:00

i    have just updated my payment method is it possible to deduct my installment payment from my updated card”

15     Between 23 January 2020 and 25 February 2020, Rely charged a total of S$494.04 to Chan’s Card for the outstanding instalments for Chair 1 and Chair 2 (Exhibit P13):

 

Chair 1

Chair 2

First payment

1 Dec 2019/ S$154.69

[the accused’s 6867 Card]

25 Dec 2019/ $184.66

[the accused’s 6867 Card]

Second payment

24 Jan 2020/ S$154.69

4422 [Chan’s Card]

23 Jan 2020/ S$184.64

[the accused’s PayNow]

Third payment

3 Feb 2020/ S$154.69

4422 [Chan’s Card]

25 Feb 2020/ S$184.66

4422 [Chan’s Card]

Total sum paid

S$464.07

S$554



First CT Charge – Transactions involving Farfetch UK Ltd/ Farfetch London (“Farfetch”)

16     Farfetch is an online luxury fashion retail platform. On 9 March 2020, a Farfetch account was registered under Chan’s name (‘Weng shi Chan’) (“the Farfetch Account”). However, the personal details given were Gmail and the Handphone Number.

17     Between 9 March 2020 and 17 April 2020, the Farfetch Account incurred a total of S$1,680.00 in charges on Chan’s Card for the purchase of five items from Farfetch (Exhibit P14). In this regard:

(a)     The items were delivered to the Residential Address which was the billing address and the shipping address.

(b)     Chan’s name was used for the billing address, while a pseudonym (‘Br3ndan Hjj’) was used for the shipping address.

First CT Charge – Transactions involving Deliveroo Singapore (“Deliveroo”)

18     Deliveroo is a company that runs an online food delivery platform. On 31 January 2020, an account was registered with Deliveroo using the accused’s name (‘Brendan Ho’) (“the Deliveroo Account”). The details given were Gmail, the Handphone Number and the Level 7 Office Unit (Exhibit P15).

19     Between 3 March 2020 and 24 April 2020, 13 food orders totalling S$270.70 were made from the Deliveroo Account and charged to Chan’s Card. All 13 food orders were delivered to the Level 7 Office Unit.

Second CT Charge

20     Sometime on 28 April 2020, Chan’s Card was terminated. Between 30 April 2020 and 4 June 2020, attempts were made from the Deliveroo Account to place seven further food delivery orders and charge them to Chan’s Card. All seven attempted food delivery orders were indicated to be delivered to the Level 7 Office Unit.

21     Given the termination of Chan’s Card, the seven attempted food delivery orders were cancelled. In some cases, the accused’s 9098 Card was used to fulfil the orders instead. The total amount involved in the seven attempted food delivery orders was S$161.63.

Other information

22     The accused made two police reports on 19 August 2019 (“the First Police Report”) (Exhibit P16) and 27 May 2022 (“the Second Police Report”) (Exhibit P17). Two statements were taken from the accused on 5 November 2020 (“the First Statement”) (Exhibit P18) and 20 January 2022 (“the Second Statement”) (Exhibit P19). The accused did not object to their admission.

Case for the prosecution

23     For the First CT Charge, the accused had dishonestly induced Citibank to deliver property amounting to S$2,444.74. To make out an offence under section 420 of the Penal Code (Cap 224, 2008 Rev Ed), there are three key elements outlined in Ong Tiong Poh v Public Prosecutor [1998] 2 SLR(R) 547 at [18] which applied to this case:[note: 3]

(a)     The accused deceived Citibank into believing that he was authorized to make payment using Chan’s Card, which fact he knew to be false;

(b)     By such manner of deception, the accused induced Citibank to deliver property to him; and

(c)     The accused did so dishonestly.

24     First, by providing Chan’s Card for the various transactions, the accused deceived Citibank into believing that he was authorised to make payment using Chan’s Card, which fact he knew to be false. The prosecution submitted that a charge could be proven based on the cumulative effect of circumstantial evidence “which leads to the irresistible conclusion that it was the accused who committed this crime”: Ang Sunny v Public Prosecutor [1965-1967] SLR(R) 123 (at [13] to [14]).[note: 4] In this case, the circumstantial evidence was overwhelming.

25     The accused’s personal details like his name, residential/office addresses, email address, handphone number were associated with the various purchases that he made. Further, all the purchases and food orders were either made to the Office Address or the Residential Address.[note: 5] The use of Chan’s Card also coincided with the accused’s mounting financial liabilities beginning in December 2019. These showed the accused’s motive (financial difficulty), the accused’s digital fingerprint (use of personal accounts) and the accused’s personal benefit (receipt of unauthorised purchases). There was no other evidence pointing to any other third-party involvement.[note: 6]

26     Second, by such manner of deception, the accused induced Citibank to deliver property amounting to S$2,444.74 to him. Lai Jingyang Caleb (“Lai”) (PW3), a Citibank representative, testified that Citibank would not allow transactions to be performed on a credit card by a third party without authorisation.[note: 7]

27     Third, the accused did so dishonestly. Section 24 of the Penal Code states:

“Dishonestly”

24.    A person (A) is said to do an act dishonestly if —

(a)    A does that act with the intention of causing wrongful gain to A or another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent; or

(b)    that act done by A is dishonest by the ordinary standards of reasonable and honest persons and A knows that that act is dishonest by such standards.

28     The prosecution submitted that the accused performed the unauthorised transactions using Chan’s Card intending to cause wrongful gain to himself, given that he received and/or retained the items purchased. The accused’s claim that he disposed of the items was ridiculous. Further, performing unauthorised transactions using someone else’s credit card was dishonest by ordinary standards, and the accused knew that such an act was dishonest. Also, unauthorised transactions were termed by the accused in the Second Statement as “fraudulent transactions”.[note: 8]

29     For the Second CT Charge, section 511(1) of the Penal Code provides that to establish an attempt to commit an offence under section 420 of the Penal Code, the accused must have had the intention of committing that offence and taken a substantial step towards the commission of that offence.[note: 9] The key focus was on the criminality of the intended act. The Court of Appeal in Han Fang Guan v Public Prosecutor [2020] 1 SLR 649 (at [108]) considered a two-stage framework:[note: 10]

(a)     First, was there a specific intention to commit a criminal act?

(b)     Second, were there sufficient acts by the accused in furtherance of the specific intention to commit the criminal act found under (a)?

30     These were made out in this case. The attempted fraudulent transactions with the Deliveroo Account involved the accused’s personal details and delivery address (Office Address).[note: 11] They occurred after Chan’s Card was terminated on 28 April 2020.[note: 12] It was unknown to the accused that Chan’s Card had already been terminated, and the seven unsuccessful attempts from April 2020 to June 2020 showed the accused’s persistence which reflected a specific intention to continue fraudulently using Chan’s Card.[note: 13] The accused’s use of his personal cards (the accused’s 9098 Card and the accused’s 5549 Card) showed that the accused was always in control of his Deliveroo Account. In fact, there were four fulfilled orders using the accused’s 9098 Card (prosecution’s emphasis added). The conclusion was that the accused used his own personal funds to purchase the food orders after he was unsuccessful in using Chan’s Card.[note: 14]

31     On this point, the prosecution highlighted that the accused’s 9098 Card and the accused’s 5549 Card were issued after Hotmail and Gmail were allegedly hacked and inaccessible (prosecution’s emphasis added). This was a key piece of objective evidence. The accused also agreed that it was impossible for the alleged hackers to obtain these card details as they could not have been inside his hacked emails.[note: 15]

32     On the contrary, the accused’s defence and claims were “blatant attempts to distance himself” and to “avoid liability by consistent denial of his involvement in the absence of direct proof”.[note: 16] The accused’s primary defence was that he was a victim of identity theft by unknown hackers exploiting his personal details (prosecution’s emphasis added).[note: 17] The accused’s recounts of alleged hacks of his emails were speculative and shifting. The accused could not produce any evidence to prove his emails had been hacked. The accused also admitted at trial that the lack of evidence made his claims unreliable. In particular:[note: 18]

(a)     There were no records presented to support the accused’s assertion that he recovered access to Hotmail and Gmail at various points, since the accused claimed he recovered access through official means (e.g. Microsoft security questionnaire, recovery email).[note: 19]

(b)     There was no documentary evidence from the gaming platforms Mobile Legends or Steam to support the accused’s position that Hotmail and Gmail were tied to these platforms through which the accused discovered the alleged email hacks.[note: 20]

(c)     The sudden mention of another email called brendanxxxxxxxx@gmail.com (“Another Gmail”), which was tied to Steam, was an afterthought raised at trial. Notably, the accused claimed that he did not have access to it.[note: 21]

(d)     The accused did not produce any police report which he claimed to have made regarding the hacking of Hotmail.[note: 22]

33     The accused’s secondary defence pertained to his former boss, one Darren Goh Liang Feng (“Darren Goh”), who might have misused the accused’s identity in perpetrating fraud on Chan’s Card. Notably, the accused admitted at trial that he only thought of this on the day before he raised it in court. Eventually, the accused conceded at trial that he had no reason to suspect Darren Goh.[note: 23]

34     In conclusion, the prosecution submitted that the accused was the perpetrator behind the successful and attempted fraudulent transactions on Chan’s Card, and the CT Charges had been proven beyond a reasonable doubt.

The prosecution witnesses’ evidence

35     Investigation Officer Karl Elliott Lim Peng (PW1) “(the IO”) stated that there was no police report lodged by the accused in relation to hacking of Hotmail. The IO testified “that it wasn’t very clear as to whether his emails were even compromised at all”.[note: 24]

36     Based on the transactions set out in the DBS statements for the accused’s 6867 Card (Exhibit P9), Mohamad Pauzi Bin Ali (PW2), a DBS/POSB representative, agreed with the prosecution that there was a “sudden cessation” of transactions from January 2020 to May 2020.[note: 25] He also noted that the outstanding balance increase arose from charges incurred from “non-payment”.[note: 26]

37     Lai (PW3) from Citibank testified as follows:[note: 27]

Q    So on the point of unauthorised transactions, in the event that Citibank is aware---if Citibank is aware that someone is using another person’s---a third party is using someone’s credit card without authorisation, would Citibank allow transactions to be performed by that third party on that card?

A    No.

38     Chan (PW4) testified that Chan’s Card was kept “at home” and he never lost the “physical card”.[note: 28] Chan never disclosed the card details to anyone other than entering them on online platforms usually from Taobao and Lazada, and the things he bought would “not amount to a few thousand dollars”.[note: 29] Chan confirmed that the transactions in question were unauthorised because he did not use Chan’s Card “during those few months”.[note: 30]

39     On the relevance of the term “USED 55X” in relation to the Level 7 Office Unit set out in the information provided by Deliveroo (Exhibit P15), Mohamed Ajmal H Sirajudeen (PW5), a Deliveroo representative, stated that it meant “this address has been used 55 times” for deliveries or orders:[note: 31]

“Name of order/account: Brendan Ho

The delivery address associated with the order:

DELIVERY ADDRESS

62 bendemeer road #07-00, Boogle, Bendemeer/Whampoa, Singapore –

Novena/Toa Payoh, Singapore, 339939, SG

USED 55x

…

The email address associated with order/account: br3ndanxxx@gmail.com…

Phone number(s) associated with orders/account: +65 [redacted Handphone Number]

Date account was opened: 2020-01-31 10:44:26”

[emphasis in bold]

Submission of no case to answer

40     The defence did not make a submission of no case to answer, and I was satisfied that the prosecution made out a prima facie case on the CT Charges. The accused was accordingly called to make his defence.

Case for the defence

41     The accused (DW1) was “adamant” that he did not commit the offences.[note: 32] The accused lodged the First Police Report before investigations in the matter commenced, concerning how Gmail had been compromised or hacked to the extent he had no access to it.[note: 33] The accused lodged the Second Police Report over “continued or repeated problems” relating to Gmail being compromised or hacked. The Second Police Report stated:[note: 34]

I received an email from Bluehost.com saying that, my Domain Esportstimes.com Bluehost primary email have been changed on 27 May 2022 at 03:23AM…

42     The accused’s personal information (including mobile number, residential address, place of employment, banking and other financial data) were stored or contained in Gmail. Hotmail (which also contained an array of his personal details and information) had been similarly compromised or hacked as well.[note: 35]

43      Rely Account. The compromise or hacking of Hotmail “must be how” the Rely Account was used to make the Chair 1 order on 1 December 2019 by the actual perpetrator(s) of the offence as the accused did not authorise the purchase of Chair 1 (including the first instalment), nor was he involved in any way thereafter. It was also on this basis that the actual perpetrator(s) managed to and did arrange for Chair 1 to be delivered to the Office Address.[note: 36] The accused had only made or placed the order for Chair 2 on 25 December 2019.[note: 37]

44      Farfetch Account. The accused never did have any account with Farfetch. The accused’s explanation was that Gmail “must have been” compromised or hacked, with the information in Gmail being used by the actual perpetrator(s) to register the Farfetch Account.[note: 38]

45      Deliveroo Account. For the Deliveroo Account registered using Gmail, the accused adopted the same position he took with regards the Farfetch Account, being that he never did have a Deliveroo Account, the actual perpetrator(s) must have registered the Deliveroo Account, and they would have given instructions using the Deliveroo Account to effect the unauthorised transactions and payments.[note: 39] On multiple occasions, food was delivered to the Office Address but left at the door or gate unattended. No one notified the accused on the delivery of the food.[note: 40]

46     On the attempted Deliveroo orders, the accused was not aware of how payment was redirected to the accused’s 9098 Card. During that period, the accused recalled having informed the bank of fraudulent charges being made to the accused’s 9098 Card.[note: 41]

47     Accordingly, the defence counsel submitted that the prosecution has failed to prove its case beyond a reasonable doubt.

The accused’s evidence

48     The accused’s view was that this was a case of “identity theft” where his identity was used.[note: 42] In the accused’s words: “[T]here’s no way that I could get the guy’s identity or details.”[note: 43] According to the accused, the “same syndicate” was trying to “fraud” him for the past few years.[note: 44] The accused felt like he was “being sabotaged”.[note: 45]

49     The accused’s version of events was as follows.

50      Hotmail. The accused was unable to recall when he created his first email account, Hotmail. When he created Hotmail, he “manually inputted” his credentials and card details in Hotmail.[note: 46] The credentials found in Hotmail were the same as Gmail. Hotmail was “hacked two times between 2018 and 2019”[note: 47] – once between late 2018 to middle 2019 (“the First Hotmail Hack”) and another time in December 2019 (“the Second Hotmail Hack”).

51     Between late 2018 to middle 2019, the accused was unable to access his account on a gaming platform called Mobile Legends. To reset his Mobile Legends account, the account had to retrieve a verification code from Hotmail. The accused was unable to access Hotmail. The accused managed to regain access to Hotmail by doing the “usual Microsoft” security questionnaires.[note: 48]

52     In end December 2019, the accused was unable to access his account on a gaming platform called Steam (“the Steam Incident”). To reset his Steam account, the accused had to retrieve a verification code from Hotmail. The accused was unable to access Hotmail. The Steam developers helped the accused to retrieve his gaming account, to “unbind” Hotmail which was “compromised”[note: 49] as well as to “bind” his gaming account into Another Gmail.[note: 50] During examination-in-chief, the accused claimed he made a police report in early-2020 that Hotmail was jeopardised due to the Steam Incident. I set out the exchange between the accused and the defence counsel:[note: 51]

Q    Which incident?

A    The Steam---when I realised that my gaming platform was being jeopardised; I cannot access to my email.

Q    Okay, and this was before or after 25th December 2019?

A    No, that was way after 25th December.

Q    Okay. So, was it January 2020? February 2020? Or---

A    I recall it’s like the early-2020.

Q    Okay. So, how did you---where did you go to lodge the report?

A    I think it was the online e-statement---e-services.

Q    I see.

A    Yah.

Q     And do you have a copy of the report?

A     No, I don’t have.

[emphasis added]

53     On why the accused only mentioned the First Hotmail Hack (and not the Second Hotmail Hack) in the Second Statement (dated 20 January 2022) (even though the Second Hotmail Hack had already occurred by then), the accused stated during cross-examination that the Second Hotmail Hack was not brought up as “no person in their right mind would even recall such dates”.[note: 52] For reference, the relevant extracts from the Second Statement stated:

1.     I have given you a summary of your previous statement – that you had nothing to do with all the fraudulent transactions and what happened is likely because of your email accounts being compromised. Is there anything you would like to clarify?

…rakion_xxxx@hotmail.com was the first email that got hacked and it was hacked sometime in late 2018 to middle 2019…I lodged a Police report pertaining to this matter within a week.

I then created br3ndanxxx@gmail.com to use, however, it was subsequently hacked in about middle 2019 to 2020…

[emphasis added]

54      Gmail. Gmail was first hacked on 11 August 2019 (“the First Gmail Hack”). The accused lodged the First Police Report which stated as follows:

On 11/08/2019 at about 3pm, I discovered my email (br3ndanxxx@gmail.com) was hacked...This is the first time such incident happened to me. My email consists of my company information but it is just car prices and insurance rates which is not sensitive information.

[emphasis added]

55     Gmail was created to “take over” the compromised Hotmail originally used for his Mobile Legends account.[note: 53] The accused was unable to log into his Mobile Legends account. To reset his Mobile Legends account, the accused had to retrieve the “6-digit number ID code” from Gmail.[note: 54] The accused discovered he was unable to access Gmail. Since then, Gmail was compromised multiple times, and it is “still happening”.[note: 55]

56      Darren Goh. For the first time at trial, the accused introduced a fresh point regarding Darren Goh which, as clarified by the defence counsel in court, was “not a fundamental defence”[note: 56] relied on by the accused. Apart from the hacking of Hotmail and Gmail as his defence, the accused said that Darren Goh was the one who was “doing this” to him.[note: 57] The accused added that Darren Goh would have “such a motive” against him.[note: 58] The accused admitted that this thought only came about “now”.[note: 59]

57     These additional key points emerged from the prosecution’s cross-examination of the accused.

Overview

58     The accused agreed that he was facing “financial difficulty” with loans and credit cards.[note: 60] Although Hotmail and Gmail were compromised, the accused agreed that it “didn’t really matter and [he] continued putting [his] personal details” into Hotmail and Gmail.[note: 61] In the accused’s view, this was one big conspiracy against him. That said, the accused conceded that there was “no reason for someone to do that”.[note: 62] Further, the accused agreed that “[i]f what [he] had told [the court] today is true about [his] boss, [he] would have informed this to somebody, anybody, at any point before today”.[note: 63] Notably, this account about Darren Goh only surfaced at trial. Even so, the accused was hesitant about his own case theory regarding Darren Goh:[note: 64]

Q    Was Darren Goh involved in these transactions or not?

A    I’m unsure.

Rely Account

59     Even though the accused claimed that he received an overdue notification for the second instalment for Chair 2 which prompted him to make payment, the accused did not have evidence of this alleged notification:[note: 65]

Q    And they send you this by?

A    If I recall, it’s SMS or---or---or WhatsApp or---I can’t remember already.

Q    And you don’t have the evidence on that?

A    No, I don’t---I don’t have, yah.

60     Notably, the accused plainly admitted that all the evidence pointed to him being the one who made the orders for Chair 1 and Chair 2:[note: 66]

Q    …all these evidence, that you did not dispute as you have confirmed that all these personal details are yours and registered to this account, that ordered the two Secretlab chairs, the evidence points to you being the one who made the orders for the Secretlab chairs, you agree or disagree?

A    Yes.

61     Contrary to the accused’s evidence-in-chief that he opened the Rely Account on 1 December 2019 using Hotmail[note: 67], the accused mentioned during cross-examination that he created the Rely Account on “25th December 2019”[note: 68] using Hotmail which is “the correct one”[note: 69]. This conflicted with the Second Statement in terms of date and email account used:

17.     Do you have or have you ever had an account with Rely Singapore?

Yes, I made an account at about the end of 2020 to sometime in 2021 linked to br3ndanxxx@gmail.com. I used it to buy a blue-coloured Cloud9 secret lab chair for my brother. It was delivered to my home address.

To explain his answer in the Second Statement, the accused stated that he “couldn’t remember at all”[note: 70] during the recording and agreed that he “made this up”.[note: 71]

62     In addition, the Second Statement set out that the accused did not bother to monitor the status of the second and third payments for Chair 2, when in fact the accused paid for the second instalment of Chair 2 by PayNow:

18.     How did you make the payment for the secret lab chair?

Through one of my credit cards. I can confirm that the first payment was made using my credit card. I did not bother to monitor the status of the second and third payments because there were not (sic) any (sic) email notifications sent to me pertaining to failure to deduct, so I assumed it went through.

Again, to explain his answer in the Second Statement, the accused said that he “couldn’t remember at all during the investigation” and wanted to “just conclude the investigation”.[note: 72]

Farfetch Account

63     The accused agreed with the prosecution that the “reasonable thing” to do was to check and find out why an unknown package was sent to him.[note: 73] The accused also agreed with the prosecution that he would be “alarmed” if he received more than one package and if this was building up.[note: 74] Notwithstanding, the accused did not check the packages.

64     The accused disagreed with the prosecution that “the right thing to do would be either to return the package or to report it to an authority”.[note: 75] This was because “it’s the sender’s fault”, and disposal was “more of the right choice”.[note: 76] The accused did not make a police report because he decided to “just focus on [his] career” and he “didn’t really bother about [his] life” at that time.[note: 77]

65     The accused disagreed with the prosecution that he “would be concerned as to why someone would have sent [him] something with [his] compromised email username”.[note: 78] It did not occur to the accused at that time as being a personal assistant was a “very tedious job” for him.[note: 79] The accused stated that he “didn’t care” at that point.[note: 80] The packages sent to him were not his “priority”.[note: 81]

Deliveroo Account

66     The accused stated that “there were times” he saw his name on the food items.[note: 82] The accused admitted that he found it “weird” that the accused’s 9098 Card and the accused’s 5549 Card were used, and he did not know how his card details were there.[note: 83]

67     The accused agreed with the prosecution that it was “impossible” for the hackers “to have access or known” the accused’s 9098 Card as it was issued on 2 January 2020.[note: 84] The accused disagreed with the prosecution that he “put in” the accused’s 9098 Card details for the Deliveroo purchases because his view was that the “hacking of a Gmail account itself” can “link to a lot of different thing (sic)”.[note: 85]

Reason for conviction

68     The crux of the defence was that the accused’s email accounts (which stored his personal information) were hacked previously, and that there was a conspiracy to sabotage him. The accused agreed with the prosecution that there were essentially two competing positions, and he did not challenge Chan’s testimony:[note: 86]

Q    ---do you have any evidence to challenge his testimony?

A    Yes.

Q    That he made those transactions?

A    No, no, no.

…

Q    So, what we have to do today is to compare your version, which is that your details are there but you don’t know how and your explanation is the hacking of the email accounts, right, versus the other version, which is prosecution’s version that you are the one who did these transactions. That’s the two competing versions, you agree?

A    Understand.

Q    I mean, do you---have you any other version?

A    No.

69     In view of the significant number of occasions, dates and details, I set out the key events in chronological order in the table below (“the Table”) for context and clarity:

Key Dates

Description

25 October 2017

The accused’s 5801 Card was issued

9 October 2018

The accused’s 2051 Card was issued

Late 2018 to mid-2019

First Hotmail Hack (Accused’s version)

(Note: The accused said in the Second Statement that he made a police report about First Hotmail Hack. No police report was produced.)

9 October 2018

The accused’s 6867 Card was issued

7 April 2019

Gmail was created

11 August 2019

First Gmail Hack (Accused’s version)

19 August 2019

First Police Report – regarding First Gmail Hack

1 December 2019

Rely Account created

- Full Name: Brendan Ho Jun Jie

- Account Name: Rakion Xxxx

- The accused’s NRIC

- Handphone Number

- Residential Address

- Hotmail

- The accused’s 6867 Card

Chair 1

- Shipping Address: Level 7 Office Unit

- 1st instalment for Chair 1 paid using the accused’s 6867 Card

25 December 2019

Chair 2

- Shipping Address: Residential Address

- 1st instalment for Chair 2 paid using the accused’s 6867 Card

End December 2019

Second Hotmail Hack (Accused’s version)

(Note: The accused said at trial that he made a police report in early 2020 about Second Hotmail Hack. No police report was produced.)

2 January 2020

The accused’s 5801 Card was cancelled

The accused’s 9098 Card was issued

23 January 2020

[Time at 22:50] 2nd instalment for Chair 2 paid using the accused’s PayNow

(Note: The accused claimed he was prompted by an overdue notification. No notification was produced.)

[Time at 23:00] Message sent from Rely Account informing Rely to update the payment method to Chan’s Card

First CT Charge period: 24 January 2020 to 24 April 2020

(21 occasions)

- Rely Account: 3 occasions

- Farfetch Account: 5 occasions

- Deliveroo Account: 13 occasions

24 January 2020

Rely Account: 2nd instalment for Chair 1 paid using Chan’s Card

31 January 2020

Deliveroo Account created

- Name of order/account: Brendan Ho

- Gmail

- Handphone Number

- Level 7 Office Unit

- Chan’s Card

3 February 2020

Rely Account: 3rd instalment for Chair 1 paid using Chan’s Card

25 February 2020

Rely Account: 3rd instalment for Chair 2 paid using Chan’s Card

3 March 2020

Deliveroo Account: Food item 1 – Chicken rice

4 March 2020

Deliveroo Account: Food item 2 – Pizza Hut

7 March 2020

Deliveroo Account: Food item 3 – Burger King

9 March 2020

Farfetch Account created

- Billing Address Name: Weng shi Chan

- Shipping Address Name: Br3ndan Hjj

- Gmail

- Handphone Number

- Residential Address

- Chan’s Card

Farfetch Account: Item 1 – Bottega Veneta leather wallet

Deliveroo Account: Food item 4 – Boon Tong Kee

Deliveroo Account: Food item 5 – Boon Tong Kee

10 March 2020

Farfetch Account: Item 2 – Adidas cotton pants

14 March 2020

Deliveroo Account: Food item 6 – Chicken rice

15 March 2020

Farfetch Account: Item 3 – Off-White cotton top

18 March 2020

Deliveroo Account: Food item 7 – Burger King

Deliveroo Account: Food item 8 – Chicken rice

23 March 2020

Deliveroo Account: Food item 9 – Chicken rice

13 April 2020

Farfetch Account: Item 4 – Moschino polyester bag

16 April 2020

Deliveroo Account: Food item 10 – Chicken rice

17 April 2020

Deliveroo Account: Food item 11 – Chicken rice

Farfetch Account: Item 5 – Logo badge holder

22 April 2020

Deliveroo Account: Food item 12 – Chicken rice

24 April 2020

Deliveroo Account: Food item 13 – Chicken rice

28 April 2020

Chan’s Police Report was made

Chan’s Card was terminated

Second CT Charge period: 30 April 2020 to 4 June 2020

-     Deliveroo Account: 7 attempted occasions

30 April 2020

Attempted Deliveroo order 1 using Chan’s Card cancelled (4:54am) – Chicken rice

- Deliveroo order using the accused’s 9098 Card cancelled (4:54am)

- Fulfilled using a card ending with 0934 (4:54am)

4 May 2020

Attempted Deliveroo order 2 using Chan’s Card cancelled (5:06am) – Burger King

- Fulfilled using the accused’s 9098 Card (5:53am)

Attempted Deliveroo order 3 using Chan’s Card cancelled (1:58pm) – Chicken rice

- Fulfilled using the accused’s 9098 Card (1:59pm)

5 May 2020

Attempted Deliveroo order 4 using Chan’s Card cancelled (6:38am) – Chicken rice

- Fulfilled using the accused’s 9098 Card (6:50am)

13 May 2020

Attempted Deliveroo order 5 using Chan’s Card cancelled (7:30am) – Chicken rice

- Fulfilled using the accused’s 9098 Card (7:30am)

4 June 2020

Attempted Deliveroo order 6 using Chan’s Card cancelled (9:50am) – Chicken rice

Attempted Deliveroo order 7 using Chan’s Card cancelled (9:50am) – Chicken rice

16 August 2020

The accused’s 9098 Card was cancelled

The accused’s 5549 Card was issued

17 September 2020

The accused’s 6867 Card was closed

The accused’s 2051 Card was closed

29 September 2020

Two Deliveroo orders using the accused’s 5549 Card pending (9:55am and 10:03am)

(Note: This card was still valid as at the date of DBS letter on 22 November 2021)

5 November 2020

First Statement

20 January 2022

Second Statement

27 May 2022

Second Police Report – regarding Bluehost.com domain account



[emphasis added in bold]

70     At the outset, I highlighted that the accused’s case theory kept shifting, with differing versions of events. For example, for the first time, the accused brought up a new defence only at trial about how his former boss Darren Goh was involved and sabotaged the accused. Notably, the accused admitted in court on 8 November 2023 that he “only thought of that yesterday”, i.e. 7 November 2023.[note: 87] This was encapsulated in the following exchange between the prosecution and the accused during cross-examination:[note: 88]

Q    Okay. Now, you agree with me that it doesn’t make sense that hackers or scammers---okay, let’s call them hackers to be accurate. That hackers would---so, I’ll go into the hacking part later, but even assuming your case to be true, that they obtained your personal details, it does not make sense that they would use someone else’s card to pay for things that they are sending you. You agree with me it doesn’t make sense?

A      Yes, correct.

Q    And further to that, it does not even make sense in the first place, regardless of whose card they used, that they would hack your account and then send things to you.

A      Correct.

Q     So, do you have any explanation for why this would have happened?

A      I will say probably one. The person that is using my details or compromising the hacker has a relationship with me or probably has a relationship with the victim as well, and he started, like, compromising, probably want to jeopardise me, or it’s at the same time that---since he know that, “Oh, I got this victim, why not I just jeopardise this person that I don’t really like actually.” So, that could be the reason as well.

Q    Now, I don’t really understand what you mean because what does the hacker have to gain out of doing that? Of sending things to you which the hacker is not receiving?

A    Okay, so what I’m mentioning is that the hacker could have a relationship with the victim and as well as with me, but because probably there could be a terms where he is obliged to---to be friend with me or basically he have an objection against me, he could be using this method to actually be compromising me and jeopardising myself, like, me.

Q      So, basically, you are saying the hacker is trying to sabotage you?

A      Yes.

Q      And this is what you think now, or this is what you thought then?

A      This is what I’m thinking right now.

Q      And sabotage you in what way?

A      Jeopardising my career, life.

Q      And do you know of anyone in your life who has such a motive against you?

A      I’ll say Darren Goh.

Q      And again, you knew this at the time that he had a motive against you, or now?

A      Now.

Q    What changed since then?

A    Because I have came (sic) into a thought on---in a way it’s that, like, it doesn’t make sense as well, as you mentioned, why---why would a hacker want to reward, like, another person while jeopardising a victim’s card itself. So, I been trying put into thoughts on anyone close to me that I have ever given a lot of 100% trust and confidential information to, and only one person came in mind, which is him.

Q    Okay, I won’t delve too much into this, but I think your evidence is quite clear that you don’t know why a hacker would do such a thing, basically taking your personal details and sending things to you?

A      Correct.

Q      And your only explanation is that it goes back to Darren?

A      Correct.

[emphasis added]

71     In the round, the accused’s case was inconsistent in many ways and had several gaps. In my assessment, it was questionable that alleged hackers would make purchases for the accused’s benefit. Even the accused agreed that this did not make sense. As the prosecution aptly summed up:[note: 89]

The Prosecution’s case is that the accused was the one making these fraudulent transactions. Accordingly, it made perfect sense that the items and food purchased were delivered to the accused as the intended beneficiary…It would only make sense that the perpetrators would want to benefit or enrich themselves, and it makes no sense that they would commit identity theft and/or credit card fraud (on Mr Chan), only to bestow unsolicited and inexplicable generosity on the accused by sending him gifts by making fraudulent purchases.

72     I was unpersuaded by the defence’s allegation of conspiracy against the accused by unknown persons or the alleged sabotage by Darren Goh. From the accused’s perspective, someone was “observing” him “on the other end” and “[a]ll these things could happen, but [he didn’t] know how.[note: 90] Ultimately, the accused was unsure about how the transactions lead to Darren Goh. In my view, the accused’s assertions were speculative in nature.

73     Throughout the proceedings, the accused did not provide any concrete evidence to support his allegations. In relation to the alleged hacking of Hotmail and Gmail, there was no documentary proof of how these email accounts were eventually retrieved with a security questionnaire or the assistance of gaming platform developers. None of the police reports which the accused claimed to have lodged after the First Hotmail Hack or the Second Hotmail Hack was produced in court by the accused. Indeed, the IO testified that there was no such police report. The same happened for the alleged overdue notification regarding the second instalment for Chair 2 (mentioned by the accused) which was also not produced as defence evidence.

74     Next, the accused claimed that he stored his credentials and card details in Hotmail and Gmail. Specifically, the accused’s evidence was that the credentials found in Hotmail were the same as Gmail. Even the First Police Report, which the defence relied on to support their position that Gmail was hacked, contradicted the main line of defence. Notably, it was odd for the accused to state in the First Police Report that this was the first time such an incident happened to him, bearing in mind that the accused already encountered the First Hotmail Hack before the First Gmail Hack. Even if this referred to the first time Gmail was hacked, the fact that the accused specifically stated in the First Police Report that Gmail contained non-sensitive company information (car prices and insurance rates) was telling. I was unconvinced by the accused’s feeble explanation that he did not want his ex-girlfriend to know that his credit card details were found in Gmail.[note: 91] Amidst a glaring lack of any other documentary evidence in the defence’s case, the defence’s assertions were unsubstantiated.

75     In terms of motive and timing, I noted from the testimony of Mohamad Pauzi Bin Ali (PW2) from DBS/POSB that the accused’s expenditure on the accused’s 6867 Card (which was used to pay for the first instalments of both Chair 1 and Chair 2 in December 2019) stopped from January 2020 onwards, and late charges started accumulating for the accused’s 6867 Card. Pertinently, the accused admitted that he could not keep up with the monthly repayments for all his credit cards. Based on the First Statement:

…I have been working for Boogle since September 2019, earning a monthly salary of about S$2,600…

…

Q4)     Do you own any credit cards?

A4)    Yes, I used to own credit cards from POSB, CIMB and Citibank but all the cards have been cancelled as I could not keep up with the monthly repayments. I do not own any credit card now.

[emphasis added]

76     Essentially, the accused was spending beyond his means. As summarised by the prosecution:[note: 92]

Since December 2019, he started incurring significant credit card debt that ran into the thousands of dollars. Between December 2019 and May 2020, he only made the monthly minimum repayments for his credit card debt. In the same period, the accused’s bank account balance at the end of the month never exceeded S$100. He also did not earn much, and he had little to no savings by his own admission. To continue funding his lifestyle, he needed another source of funds.

77     From the Second Statement, the accused could not remember the card number which was in Hotmail, but he stated that the accused’s 5801 Card was compromised in the alleged hacking of Gmail:

2.     Can you clarify what banking details were compromised for your rakion_xxxx@hotmail.com email.

My debit card details were compromised as they were linked to my email account. By having access to my email and logging in, the hacker would be able to retrieve details that are input into my email, specifically, my billing address, name, contact number and only the last four digits of my DSB/POSB debit card. I do not remember the card number that was linked to this email address.

3.     Can you clarify what banking details were compromised for your br3ndanxxx@gmail.com email?

Same thing as above, just that another DBS/POSB debit card was compromised and all I recall is the last four digits are 5801.

78     Notably, the accused’s other cards were used, namely, the accused’s 6867 Card (for the Rely Account), the accused’s 9098 Card (for the Deliveroo Account) and the accused’s 5549 Card (for the Deliveroo Account). It was striking that the accused claimed to have made reports for fraudulent transactions involving his various cards.[note: 93] Yet, these alleged reports were not provided as defence exhibits to support the accused’s claims.

79     There were several instances where the accused provided differing versions of events. For example, in relation to the Farfetch packages:

(a)     Originally, the accused said that he only asked his family members about the Farfetch packages. Subsequently, the accused said that he also checked with Darren Goh. From initially saying that he asked Darren Goh about the Farfetch packages, the accused then changed his evidence to say that he had conversations with Darren Goh about the Deliveroo orders, and not the FarFetch packages. This was seen from the relevant extract:[note: 94]

Q    Okay. You said, you had conversations in relation to Farfetch packages and then now you said it’s actually Deliveroo food orders. Two different versions, right?

A    Correct, correct, correct.

(b)     The accused first stated in cross-examination that he saw the packages at the corridor or the flowerpot outside his house when he came home. He “cannot recall whether [he has] met the delivery guy before”.[note: 95] Subsequently, the accused said in cross-examination that he saw a person leave something at his house and spoke to him:[note: 96]

A    …But that is the one---one time I saw---ever saw a guy that---that---that actually leave something at my house.

…

A    …Then, I asked him, say, “What did you put here?” That’s all.

…

Q    ---just one or---is there this one incident now that you remember, at least one, right, to be completely accurate, that there’s this delivery personnel walking away that just put the parcel outside your door and you are in a conversation with him.

A    Yah…

(c)     The accused stated in the First Statement that he did try to contact Farfetch but to no avail:

Q15)     Since you mentioned that you did not order these items from ‘Farfetch’, did you make any attempt to contact them or reject the parcel?

A15)   I did try to contact ‘Farfetch’ but to no avail.

However, the accused gave a different version at trial where he said that he did not contact Farfetch:[note: 97]

Q    Okay. Did you call anybody that could have been Farfetch?

A    No.

Q    Did you call anybody that could have been the delivery company?

A    No, not at all. Because I don’t know who was it sent from also.

(d)     The Case for the Defence dated 4 July 2023 (Exhibit P22) stated that the accused “asked the delivery personnel in question to take them away” (at [15]). This description was entirely different from the accused’s evidence during cross-examination that he was sure he did not speak to any delivery personnel to try to reject the parcel:[note: 98]

Q    …Did you speak to any delivery personnel to try to reject the parcel?

A    No.

Q    Sure?

A    Yah, sure.

(e)     The accused’s evidence-in-chief was that he did not glance at the Farfetch packages or open them. This however did not gel with the accused’s testimony during cross-examination that it was reasonable to check if he received a package which he did not order and was addressed to him:[note: 99]

Q    …My question is: Agree with me that if you receive a package that you didn’t order addressed to you, the reasonable thing to do would be to check why such a package was sent to you?

A    Correct.

80     At this juncture, I highlighted that the unauthorised transactions were traced to the accused through prominent aspects connected to the accused such as the account name, email accounts, addresses, contact details and credit cards. Such information was personal, confidential, and sensitive in nature. In my view, not only were the testimonies of the prosecution witnesses credible, the prosecution’s line of questioning during cross-examination demolished the defence’s case, rendering the hacking and sabotage claims baseless.

81     For the First CT Charge, there were many linkages connected to the accused as demonstrated in the Table. In sum:

(a)     For the Rely Account, apart from the details tied to the accused (see the Table above), the first instalments for both Chair 1 and Chair 2 were paid using the accused’s 6867 Card. Separately, I noted that the second instalment for Chair 2 was paid by the accused using PayNow on 23 January 2020 at 22:50. I also noted the proximity and flow in timing when the payment method was changed to Chan’s Card via the Rely Message on 23 January 2020 at 23:00. Thereafter, all instalments were paid using Chan’s Card.

(b)     For the Farfetch Account, apart from the details tied to the accused (see the Table above), I found it questionable that the accused would dispose of the packages without checking or doing something about them, especially since he claimed that he did not order them. Moreover, the packages came on more than one occasion which would have raised alarm bells or prompted further action on the accused’s part. As the accused mentioned in the First Statement:

Q9)     There was a report lodged in April 2020 about some unauthorized transactions done on his (sic) Citibank credit card. Based on the information that he had provided to the Police, there was an order made from a merchant, ‘Farfetch’ from UK and the delivery was made to your address at Pasir Ris. What do you know about this transaction?

A9)    I know items are been (sic) delivered to my place. But I have thrown them away.

…

Q12)     What were the items or parcels that you have received and thrown away?

A12)    I do not know as I did not check.

[emphasis added in bold]

Specifically, the accused was again unable to explain how the packages ended up at his home:[note: 100]

Q      Mr Ho, if you return those items, you reported to the police; at any point when you suspected something, you would not be charged.

A      I understand. That’s why---

Q      So, my question is: How would that person, according to your theory, be able to sabotage you just by sending you things?

A      So, now, it’s---the answer is I do not know---

[emphasis added]

(c)     For the Deliveroo Account, apart from the details tied to the accused (see the Table above), I again found it questionable that the accused would dispose of the food items. According to the Second Statement, the accused did not find this fishy and did not bother to contact Deliveroo:

9.     Have you ever received unsolicited food orders from Deliveroo to your house or former work place?

Yes. When I was working with Boogle, I received food items addressed to me which I did not order. The frequency would vary – sometimes it could be once or twice a day, sometimes it ranged from two to three times a week. This happened for about half a year.

10.     What did you do with the food that was delivered?

I disposed of the food.

11.     Did you get in touch with Deliveroo pertaining to the unsolicited deliveries?

I do not have a Deliveroo account, so I did not bother to contact the company.

12.     Did it not occur to you that considering the frequency of the unsolicited food deliveries, something fishy was going on and you should at the very least inform the company about what was happening?

No.

[emphasis added]

This was unbelievable, given the high frequency of the food deliveries and the lengthy duration for which this has been taking place. Pertinently, I noted from the testimony of Mohamed Ajmal H Sirajudeen (PW5) from Deliveroo that the Level 7 Office Unit address had been used 55 times.

82     For the Second CT Charge, the strong connecting factors to the accused were once more present. Arising from the termination of Chan’s Card on 28 April 2020, the attempted food delivery orders using Chan’s Card were cancelled. Apart from the details tied to the accused in the Deliveroo Account (see the Table above), it was noteworthy that the accused’s cards (namely, the accused’s 9098 Card and the accused’s 5549 Card) were used to fulfil cancelled orders or for pending orders.

83     In this regard, the accused confirmed that the accused’s 9098 Card was “not” found in Hotmail and Gmail.[note: 101] The accused also confirmed that it was “impossible, therefore, for the hackers to have access or known this card”.[note: 102] Similarly, the accused conceded that the accused’s 5549 Card “won’t be” in his email accounts.[note: 103] Notwithstanding this, the accused simply inferred that the hackers “can do way more things” with his email accounts. I found the accused’s explanation problematic. Essentially, the accused was unable to provide a proper explanation as to how his cards’ details ended up in the Deliveroo Account.

84     From the accused’s perspective, “it doesn’t make sense” that the Deliveroo orders were made using the accused’s 9098 Card and the accused’s 5549 Card because he did a “replacement” on those cards due to “fraudulent transactions being done on it before”.[note: 104] Again, the accused’s claim was unsupported by evidence. Bearing in mind that the period in the Second CT Charge was from April 2020 to June 2020, the accused’s 9098 Card was only cancelled in August 2020 and the accused’s 5549 Card was still valid at that time.

85     In a nutshell, this line in the First Statement captured the accused’s overall position: “Maybe the hacker wanted to manipulate the victim’s credit card and used another person’s address.” [emphasis added] I found that this was pure conjecture on the accused’s part without affording proof or explanation on why the alleged hacker would send so many items to the accused’s home and office paid for by somebody else. It was notable that the accused’s evidence and the defence closing submissions were peppered with speculative words such as “maybe”, “unsure”, “must be how” or “must have been” to explain away the offences. The defence’s recurrent and nebulous reference to “the actual perpetrator(s)” also showed weakness and mere supposition in the defence case theory, akin to convenient finger-pointing to an unknown subject with no specific identity, without more.

86     Even though the defence counsel clarified that the aspect regarding Darren Goh was not a fundamental defence, I have dealt with it here for completeness since it has been raised by the accused. In my view, the sudden allusion to Darren Goh certainly did not pass muster. There was no evidence produced to show that Darren Goh was the perpetrator. At trial, the accused mentioned that Darren Goh “is on the run”.[note: 105] Even if this was the reason for which Darren Goh was not called as a defence witness to testify, I noted that the defence did not call any other former colleagues to testify. Not only was the position concerning Darren Goh not put to the prosecution witnesses, there was also no mention of Darren Goh in the accused’s statements. I agreed with the prosecution that the use of Darren Goh was an afterthought which arose as a last-ditch attempt (during the defence case at the trial itself) to salvage his case comprising a bare denial and essentially no valid defence.

87     Further, the accused said he did not raise this earlier because he did not think that Darren Goh would “be doing all this based on trust with him”.[note: 106] The accused was “very close” to Darren Goh who was “using his phone personal details” to make purchases.[note: 107] When the accused previously asked Darren Goh whether he used his “email to send all these stuff”, Darren Goh said “no” and mentioned to the accused: “Oh, I actually logged out your email already” or like “not even in your email”, something like that.[note: 108] As the accused confirmed in court that this covered Gmail, it contradicted the First Statement:

Q5)     Do you share access of your gmail address, Br3ndanxxx@gmail.com with anyone else?

A5)    No, nobody else.

To explain his answer in the First Statement, the accused said during cross-examination: “I couldn’t recall at all. That’s the reason why the answer is “No””.[note: 109]

88     Based on the strong evidence against the accused, I agreed with the prosecution that the elements under section 420 of the Penal Code were made out. As the High Court concisely set out in Public Prosecutor v Sim Chin Ang Jason [2024] SGHC 169 (“Jason Sim”) (at [43]):

The elements of a cheating offence punishable under s 420 of the Penal Code are as follows: (a) the victim was deceived; (b) there was an inducement such that the victim delivered any property to any person; and (c) there was a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property (Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946 (“Gunasegeran”) at [42]–[44]).

89     I will cover each element in turn.

90     First, deception is defined as the causing of another to believe what is not true (Rahj Kamal bin Abdullah v Public Prosecutor [1997] 3 SLR(R) 227 at [24]): Jason Sim at [44]. I was satisfied that Citibank was deceived by the accused into believing that he was authorised to make payment using Chan’s Card.

91     Second, “in the context of deceiving corporate bodies such as the banks in the present case, it is sufficient for the Prosecution to show that the bank’s processes were utilised to induce the bank to act in a manner that it would not have acted if the representation was not made (Leck Kim Koon v PP [2022] 3 SLR 1050 at [28])”: Jason Sim at [56]. I was satisfied that there was an inducement such that Citibank delivered property (amounting to $2,444.74) to the accused, as attested to by Lai (PW3) from Citibank.

92     Third, I was satisfied that there was a dishonest or fraudulent intention on the part of the accused to induce Citibank to deliver the property. The accused used Chan’s Card for the transactions. Chan did not authorise the transactions.

93     I also agreed with the prosecution that the accused attempted to commit the other offence under section 420 of the Penal Code. I was satisfied that the accused had the intention to commit the offence and there were sufficient acts by the accused to conclude as such.

94     Apart from the accused’s multiple discrepancies and conflicting evidence, I added that his nonchalant and blasé approach to try to explain away occurrences along the lines of being unable to recall situations or that he could not be bothered about certain matters did not aid his case in any way. I agreed with the prosecution that the accused “caught himself in the web of lies that he has spun”.[note: 110] Pertinently, the accused conceded that he had no evidence to support his claims. I set out this exchange between the accused and the prosecution:[note: 111]

Q      Now, Mr Ho, you have told us a lot of things today that you have no evidence for as well.

A      Correct.

Q      So, if it happened, why didn’t you tell us?

A      Because you should have evidence in Court, you know, in order to---to mention about it. If you don’t have any evidence, then there’s no point mentioning it.

Q      And no point mentioning it because it would be unreliable?

A      Yes, correct.

Q      So, whatever you have told us today in Court that you have no evidence for would also be unreliable?

A      Yah.

[emphasis added in bold]

Conclusion

95     This was a case where the accused continually used the credit card details of a 69-year-old person for a buying spree. This took place over 20 times, only ending involuntarily when the credit card was cancelled. The defence was completely devoid of merit.

96     In the circumstances, I was satisfied that the prosecution has proven its case beyond reasonable doubt. The accused was convicted on the CT Charges. The accused is presently on bail pending appeal.

[note: 1]The original charge read “Second” instalment. It was altered, read and explained to the accused under section 128 of the Criminal Procedure Code 2010 (“CPC”). The accused claimed trial on the First CT Charge, and both parties did not require any witness who had been examined to be recalled: sections 129 and 131 of the CPC.

[note: 2]The accused’s NRIC was originally redacted in the ASOF.

[note: 3]Prosecution’s End of Trial Submissions dated 25 April 2024 (“Prosecution’s End of Trial Submissions”) at Paragraph 7.

[note: 4]Prosecution’s End of Trial Submissions at Paragraph 11.

[note: 5]Prosecution’s End of Trial Submissions at Paragraphs 3, 4 and 12.

[note: 6]Prosecution’s End of Trial Submissions at Paragraph 13.

[note: 7]Prosecution’s End of Trial Submissions at Paragraph 15.

[note: 8]Prosecution’s End of Trial Submissions at Paragraph 16.

[note: 9]Prosecution’s End of Trial Submissions at Paragraph 8.

[note: 10]Prosecution’s End of Trial Submissions at Paragraph 9.

[note: 11]Prosecution’s End of Trial Submissions at Paragraph 17.

[note: 12]Prosecution’s End of Trial Submissions at Paragraph 8.

[note: 13]Prosecution’s End of Trial Submissions at Paragraph 18(a).

[note: 14]Prosecution’s End of Trial Submissions at Paragraph 18(c).

[note: 15]Prosecution’s End of Trial Submissions at Paragraphs 28 and 29.

[note: 16]Prosecution’s End of Trial Submissions at Paragraph 45.

[note: 17]Prosecution’s End of Trial Submissions at Paragraph 19.

[note: 18]Prosecution’s End of Trial Submissions at Paragraphs 5 and 24.

[note: 19]Prosecution’s End of Trial Submissions at Paragraph 24(a).

[note: 20]Prosecution’s End of Trial Submissions at Paragraph 24(b).

[note: 21]Prosecution’s End of Trial Submissions at Paragraphs 24(b) and 24(c).

[note: 22]Prosecution’s End of Trial Submissions at Paragraph 24(c).

[note: 23]Prosecution’s End of Trial Submissions at Paragraph 36.

[note: 24]Notes of Evidence (“NE”), 3 July 2023, 62/7-8.

[note: 25]NE, 3 July 2023, 74/22.

[note: 26]NE, 3 July 2023, 74/3.

[note: 27]NE, 3 July 2023, 82/24-29.

[note: 28]NE, 4 July 2023, 4/16, 5/6.

[note: 29]NE, 4 July 2023, 4/25.

[note: 30]NE, 4 July 2023, 16/5.

[note: 31]NE, 4 July 2023, 23/13.

[note: 32]Defence Closing Submissions dated 22 April 2024 (“Defence Closing Submissions”) at Paragraph 69.

[note: 33]Defence Closing Submissions at Paragraph 69.

[note: 34]Defence Closing Submissions at Paragraph 91.

[note: 35]Defence Closing Submissions at Paragraphs 69 and 88.

[note: 36]Defence Closing Submissions at Paragraph 74.

[note: 37]Defence Closing Submissions at Paragraph 73.

[note: 38]Defence Closing Submissions at Paragraphs 87 and 88.

[note: 39]Defence Closing Submissions at Paragraph 95.

[note: 40]Defence Closing Submissions at Paragraph 96.

[note: 41]Defence Closing Submissions at Paragraph 97.

[note: 42]NE, 7 November 2023, 3/1.

[note: 43]NE, 8 February 2024, 10/18-19.

[note: 44]NE, 7 November 2023, 46/4-5.

[note: 45]NE, 8 February 2024, 10/17.

[note: 46]NE, 8 November 2023, 24/13-15.

[note: 47]NE, 7 November 2023, 92/16.

[note: 48]NE, 7 November 2023, 104/6.

[note: 49]NE, 7 November 2023, 32/13.

[note: 50]NE, 7 November 2023, 107/17.

[note: 51]NE, 7 November 2023, 32/28-33/8.

[note: 52]NE, 7 November 2023, 99/28-29.

[note: 53]NE, 7 November 2023, 104/11.

[note: 54]NE, 7 November 2023, 39/12-13.

[note: 55]NE, 7 November 2023, 54/6.

[note: 56]NE, 15 May 2024, 3/13.

[note: 57]NE, 7 November 2023, 94/5.

[note: 58]NE, 7 November 2023, 97/17.

[note: 59]NE, 7 November 2023, 97/22.

[note: 60]NE, 7 November 2023, 110/2.

[note: 61]NE, 8 November 2023, 26/20-23.

[note: 62]NE, 8 November 2023, 34/20-21.

[note: 63]NE, 8 November 2023, 48/24-27.

[note: 64]NE, 8 November 2023, 36/19-20.

[note: 65]NE, 8 November 2023, 58/6-10.

[note: 66]NE, 8 November 2023, 52/28-53/1.

[note: 67]NE, 7 November 2023, 19/3-7.

[note: 68]NE, 8 November 2023, 77/28-30.

[note: 69]NE, 8 November 2023, 77/20.

[note: 70]NE, 8 November 2023, 77/22.

[note: 71]NE, 8 November 2023, 81/20-21.

[note: 72]NE, 8 November 2023, 83/15, 83/17-18.

[note: 73]NE, 7 November 2023, 113/13.

[note: 74]NE, 8 November 2023, 110/6.

[note: 75]NE, 7 November 2023, 113/24-27.

[note: 76]NE, 7 November 2023, 113/29-31.

[note: 77]NE, 8 November 2023, 110/30-32.

[note: 78]NE, 7 November 2023, 114/30-115/1.

[note: 79]NE, 7 November 2023, 115/2.

[note: 80]NE, 7 November 2023, 115/25.

[note: 81]NE, 7 November 2023, 116/19.

[note: 82]NE, 8 November 2023, 137/19.

[note: 83]NE, 8 November 2023, 140/8.

[note: 84]NE, 8 November 2023, 30/4-5.

[note: 85]NE, 8 November 2023, 30/8-12.

[note: 86]NE, 8 November 2023, 8/1-4; 8/27-9/3.

[note: 87]NE, 8 November 2023, 35/16-17.

[note: 88]NE, 7 November 2023, 96/11-98/5.

[note: 89]Prosecution’s End of Trial Submissions at Paragraphs 40 and 41.

[note: 90]NE, 8 November 2023, 73/31-32.

[note: 91]NE, 8 November 2023, 142/19-21.

[note: 92]Prosecution’s End of Trial Submissions at Paragraph 1.

[note: 93]NE, 7 November 2023, 67/19-25.

[note: 94]NE, 8 November 2023, 45/23-26.

[note: 95]NE, 8 November 2023, 117/30-31.

[note: 96]NE, 8 November 2023, 130/13-131/3.

[note: 97]NE, 8 November 2023, 122/19-23.

[note: 98]NE, 8 November 2023, 122/25-29.

[note: 99]NE, 7 November 2023, 113/11-15.

[note: 100]NE, 8 November 2023, 146/22-28.

[note: 101]NE, 8 November 2023, 31/19-21.

[note: 102]NE, 8 November 2023, 30/4-7.

[note: 103]NE, 8 November 2023, 33/16-18.

[note: 104]NE, 8 February 2024, 9/3, 9/6-7.

[note: 105]NE, 7 November 2023, 94/22.

[note: 106]NE, 7 November 2023, 94/29-31.

[note: 107]NE, 7 November 2023, 94/10-12.

[note: 108]NE, 8 November 2023, 39/28-32.

[note: 109]NE, 8 November 2023, 37/26-27.

[note: 110]Prosecution’s End of Trial Submissions at Paragraph 34(c).

[note: 111]NE, 7 November 2023, 109/19-30.

"},{"tags":["Tort – Defamation","Tort – Defamation – Publication – The effect of posting a statement on a Facebook page","Tort – Defamation – Justification – Whether the failure to call for annual general meetings, laying the company’s financial statements, and accounting to the shareholders can amount to oppressive conduct","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota is wrongful utilisation and/or misappropriation of the company’s money","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert breach of fiduciary duty","Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert criminal breach of trust","Civil Procedure – Costs"],"date":"2024-10-01","court":"District Court","case-number":"District Court Originating Claims Nos 714 and 715 of 2023, District Court's Appeals No. 12 and 13 of 2024","title":"Thong Chee Leong v Yong Tian Cheng Terrence and another matter","citation":"[2024] SGDC 255","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32350-SSP.xml","counsel":["Mr Balachandran Suren Jaesh (Bishop Law Corporation) for the claimants","Mr Ivan Ng Khai Lee and Ms Phyllis Wong Shi Ting (Infinitus Law Corporation) for the defendant."],"timestamp":"2024-10-24T16:00:00Z[GMT]","coram":"Ng Tee Tze Allen","html":"Thong Chee Leong v Yong Tian Cheng Terrence and another matter

Thong Chee Leong v Yong Tian Cheng Terrence and another matter
[2024] SGDC 255

Case Number:District Court Originating Claims Nos 714 and 715 of 2023, District Court's Appeals No. 12 and 13 of 2024
Decision Date:01 October 2024
Tribunal/Court:District Court
Coram: Ng Tee Tze Allen
Counsel Name(s): Mr Balachandran Suren Jaesh (Bishop Law Corporation) for the claimants; Mr Ivan Ng Khai Lee and Ms Phyllis Wong Shi Ting (Infinitus Law Corporation) for the defendant.
Parties: Thong Chee Leong — Yong Tian Cheng Terrence — Chow Chee Chang Samson

Tort – Defamation

Tort – Defamation – Publication – The effect of posting a statement on a Facebook page

Tort – Defamation – Justification – Whether the failure to call for annual general meetings, laying the company’s financial statements, and accounting to the shareholders can amount to oppressive conduct

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota is wrongful utilisation and/or misappropriation of the company’s money

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert breach of fiduciary duty

Tort – Defamation – Justification – Whether paying phantom workers to increase a company’s foreign worker quota gives rise to reasonable grounds to assert criminal breach of trust

Civil Procedure – Costs

1 October 2024

District Judge Ng Tee Tze Allen:

Introduction

1       DC/OC 714/2023 (“DC714”) and DC/OC 715/2023 (“DC715”) are defamation actions arising out of a company dispute.

2       Mr Thong Chee Leong is the claimant in DC714 and Mr Samson Chow the claimant in DC715. They are the directors of M E Eateries Pte Ltd (the “Company”). They have sued Mr Yong Tian Cheng Terrence for posting a letter of demand on a Facebook page (the “Facebook Page”).

3       The claimants took issue with six statements in the letter of demand. Five of the six statements concerned both claimants. Broadly speaking, the net effect of these five statements was that:

(a)     the claimants failed in their duties to account for the Company’s affairs or to furnish the financial statements for 2020 when requested, and this lack of transparency amounted to minority oppression; and

(b)     the claimants wrongly utilised and/or misappropriated the Company’s funds and there was reasonable grounds that the claimants breached their fiduciary duties and/or committed criminal breach of trust.

4       In my view, although these five statements are defamatory, the defence of justification is made out:

(a)     Starting with the statements concerning the claimants’ failure to account and their alleged oppressive conduct, the claimants admitted that they were duty-bound to account to the shareholders for the Company’s business and finances. Notwithstanding these duties, the claimants admitted that they had failed to: (i) call an annual general meeting for the financial years 2020 and 2021; (ii) place before the shareholders financial statements for either year; or (iii) account to the shareholders the depletion of the Company’s cashflow.

(b)     As for the statements concerning the wrongful utilisation of funds, misappropriation, breach of fiduciary duties, and criminal breach of trust, the claimants admitted that they had permitted / caused the Company to make CPF contributions to Mr Thong’s friends and relatives who did not work for the Company.

(c)     Further, the claimants’ attempt to legitimise these payments did not help them. According to the claimants, these payments were made to increase the Company’s foreign worker quota. In my view, this explanation is lacking. It does not take away from the fact that the Company’s funds were being diverted to pay phantom workers who did not work for it. Furthermore, the stated purpose is illegal and exposed the Company to criminal liability. It is thus objectively difficult to see how an intelligent and honest director could have believed that this is for the Company’s interest. And the claimants’ evidence on their subjective intentions was poor.

5       The remaining statement concerned only Mr Thong and a period before Mr Thong was appointed one of the Company’s directors. It alleged that Mr Thong had: (a) forcefully and wrongfully gained control of the Company’s invoices and books, and (b) refused to return them to the defendant (the then director).

6       I found this statement to be defamatory as well. But I did not think it was fully justified. In particular, the evidence showed that the defendant had voluntarily passed these documents to Mr Thong. It was thus not correct to allege that he had “forcefully or wrongfully". I awarded Mr Thong S$2,000 (inclusive of aggravated damages).

7       The claimants have appealed against my decision. These are the full grounds of my decision.

Facts

The incorporation of the Company and its business

8       On 13 July 2018, the Company was incorporated. At the time of its incorporation, its shareholders were, and continue to be:[note: 1]

(a)     Mr Thong (i.e. the claimant in DC714) who held 65% of the Company’s shares;

(b)     The defendant who held 15% of the Company’s shares;

(c)     Ms Lim Yen Yen who held 15% of the Company’s shares; and

(d)     Mdm Lim Chew Tee who held 5% of the Company’s shares.

9       The Company was incorporated to operate a food and beverage business in Mount Elizabeth Novena Hospital. This took the form of Killiney Kopitiam outlet (the “Killiney store”).[note: 2]

10     The defendant was appointed the Company’s director at its incorporation. He also managed the Company and the Killiney store.[note: 3]

11     This continued for about two years.

The claimants replaced the defendant as the Company’s directors

12     On or around 4 November 2020, Mr Thong signed a written Member’s Resolution to:[note: 4]

(a)     remove the defendant from his office as a director of the Company with immediate effect; and

(b)     appoint Mr Chow (i.e. the claimant in DC715) as a director of the Company.

13     Two weeks later, on 18 November 2020, Mr Thong was appointed a director of the Company.[note: 5]

14     There was no need to explore the reasons for these events. Suffice to say, the claimants alleged,[note: 6] and the defendant denied,[note: 7] that the removal of the defendant as director and the appointment of the claimants as directors were due to the defendant mismanaging the Company.

15     There was also no need to determine: (a) whether the rest of the shareholders agreed to the defendant’s removal and the claimants’ appointment, and (b) whether the steps taken to effect the aforesaid changes in office complied with the Company’s constitution and/or the Companies Act 1967. On the defendant’s own case, he resigned from his directorship shortly after the 4 November 2020 Member’s Resolution.[note: 8] All parties also agreed that Mr Chow and Mr Thong were appointed to the Company’s board of directors on 4 November 2020 and 18 November 2020 respectively.

16     Thereafter, the defendant handed over the management of the Company and the Killiney store to the claimants.

17     About a year later, in or around October to November 2021, the Company’s lease with Mount Elizabeth Novena Hospital ended, and the hospital decided not to renew the lease.[note: 9] On Mr Thong’s evidence, “there was no reason to continue to keep the Company open as it did not have any other business” and that he intended to voluntarily wind-up the Company.[note: 10]

The letter of demand

18     On or around 9 March 2022, Infinitus Law Corporation (“Infinitus Law”) sent a letter of demand to the claimants on behalf of the remaining shareholders of the Company. Namely, the defendant, Ms. Lim Yen Yen, and Mr Poh Wen Jie who acted as a proxy for Mdm Lim Chew Tee.[note: 11]

19     I will return to the contents of the letter of demand later. For now, it is sufficient to note that there is no dispute as to the contents of the letter of demand and that it contained the six statements which the claimants took issue with.

The defendant posted the letter of demand on the Facebook Page

20     This brings me to the Facebook Page that the letter of demand was posted on. The Facebook Page was created by the defendant on 17 October 2018 when he was managing the Company and its business. It was originally named “Killiney Mount Elizabeth Novena Hospital”.[note: 12]

21     In or around June 2021, i.e., about seven months after the defendant stopped managing the Company and the claimants took charge (see [12]-[16] above), the defendant started posting images and posts on the Facebook Page which suggested that the Company’s business was failing. These Facebook posts included the following:

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22     On 10 November 2021, the defendant changed the name of the Facebook Page from “Killiney Mount Elizabeth Novena Hospital” to “Thong Chee Leong”, i.e. the name of the claimant in DC714.[note: 13]

23     On 4 April 2022, the defendant posted the letter of demand on the Facebook Page, with the comment “Someone is going to get sued until pant drop.” It is common ground that the entire letter of demand could be read in this Facebook post. A copy of the Facebook post with the letter of demand is reproduced below:

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24     It appeared that the Facebook Page has since been removed and can no longer be seen by the public.

The parties’ cases

25     The elements to establish the tort of defamation were not in dispute. First, the statement in issue must bear a defamatory meaning. Second, it must refer to the plaintiff. And third, the statement must have been published to a third party: Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 (“Golden Season”) at [35].

26     The claimants’ case is that the defendant had defamed them by publishing the letter of demand on the Facebook Page. In this regard, they pleaded that the following six statements (collectively, the “Statements”) in the letter of demand were defamatory and referred to them:

(a)     The first statement (“Statement 1”) is Header B and [7] of the letter of demand. Both claimants took issue with Statement 1, which reads:[note: 14]

B.    Failure to account for the Company’s business and finances.

7.    Having set out the foregoing, we are instructed that both of you had failed as the directors [sic] of the Company, to account for the affairs of the Company to our clients, including the state of the Company’s operations, business, and finances.”

(b)     The second statement (“Statement 2”) concerned only Mr Thong. It is found in [8] of the letter of demand:[note: 15]

… Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books (from October 2019 onwards) (“the Company’s financial documents”) through the Company’s accountant and refused access of the same to Mr Yong; even though Mr Thong is not entitled to retain the Company’s financial documents…

(c)     The third statement (“Statement 3”) is the last sentence of [10] of the letter of demand. Both claimants took issue with Statement 3, which reads:[note: 16]

10.    … However, both of you had blatantly failed, refused and/or neglected to conduct proper accounting and furnish our clients with FS 2020 when they requested the same.

(d)     The fourth statement (“Statement 4”) is [12] of the letter of demand. Both claimants took issue with Statement 4, which reads:[note: 17]

12.    Furthermore, both of you had blatantly failed, refused, and/or neglected to account when specific enquires, with regard to the Company’s affairs, were made to you. Your lack of transparency and failure to account to our clients is oppression of minority of shareholders’ rights contrary to Section 210 of the Companies Act 1967.

(e)     The fifth statement (“Statement 5”) is Header D and [17] of the letter of demand. Both claimants took issue with Statement 5 which reads:[note: 18]

D.    Misappropriation of Company funds

17.    Apart from your oppressive conduct, you also appear to have wrongfully utilized the Company’s funds and/or had misappropriated the same.

(f)     The sixth statement (“Statement 6”) is [25] of the letter of demand. Both claimants took issue with Statement 6 which reads:[note: 19]

25.    Based on the sequence of events, foreshadowed, our clients have reasonable grounds to believe that not only have the both of you breached your fiduciary duties to the Company, there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code.

27     The defendant’s case was as follows:

(a)     While the defendant admitted to posting the letter of demand on the Facebook Page, he denied that it was published to third parties;

(b)     While the defendant accepted the letter of demand contained the six Statements, he denied that they were defamatory; and

(c)     In any event, the defences of justification and/or fair comment applied.

Issues

28     I will start with my thoughts on whether the letter of demand was published to third parties, and if so, the extent of publication (see [31]-[55] below).

29     I will then consider whether the Statements are defamatory and whether any defences applied to them. My views will be set out thematically in the following order:

(a)     First, Statements 1, 3, and 4 will be considered. Broadly speaking, these statements alleged that the claimants failed in their duties as directors to properly account for the Company’s affairs and accounts, and that this lack of transparency amounted to minority oppression (see [57]-[79] below).

(b)     Next, Statements 5 and 6 will be considered. Broadly speaking, these statements alleged that the claimants wrongfully used and/or misappropriated Company’s money. On this basis, the defendant asserted that there were reasonable grounds to believe that: the claimants: (i) breached their fiduciary duties, and (ii) were liable for criminal breach of trust (see [81]-[114] below).

(c)     Finally, Statement 2 will be considered. This statement alleged that Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books and refused to give the defendant access to the same (see [116]-[126] below).

30     I will then move to the remedies sought by the claimants (see [127]-[140] below), before turning to costs (see [141]-[152] below).

Publication to third parties

31     The defendant’s case was that the letter of demand (and hence the Statements) was not published to third parties. He submitted that just because the letter of demand was posted on the Facebook Page did not mean that third parties had read it. He also submitted that the evidence did not support finding that the letter of demand was seen by third parties because:[note: 20]

(a)     the Facebook post which annexed the letter of demand had no likes, shares, or comments;

(b)     the claimants did not call anyone to testify that they had seen the Facebook post or the letter of demand; and

(c)     neither claimant knew for a fact that any third party had seen the Facebook post or the letter of demand.

32     On this basis, the defendant submitted that the claimants had not proved that the letter of demand was published to third parties,[note: 21] or even if there was publication, that such publication was limited.[note: 22]

Effect of posting the letter of demand on Facebook

33     As a preliminary point, it is trite that the claimants bear the burden of proving their case. This means that they bear the burden of proving that the letter of demand was read by third parties.

34     In this regard, I agree with the defendant’s submission that just because a letter of demand was posted on Facebook does not mean that it was read by third parties. In Qingdao Bohai Construction Group Co, Ltd v Goh Teck Beng [2016] 4 SLR 977 (“Qingdao”), the Court explained at [35] that publication has two components:

(a)     an act that makes the defamatory material available to a third party in a comprehensible form (“the first component”); and

(b)     the receipt of the information by a third party in such a way that it is understood (“the second component”).

35     In this case, the first component was clearly satisfied. The defendant himself admitted that he posted the letter of demand on the Facebook Page.

36     We are thus only concerned with the second component. In this regard, the Court in Qingdao also explained that not only is “uploading or posting the material on the Internet alone is not publication for the purpose of the law of defamation” (see Qingdao at [37]), there “is no presumption of law that material appearing on the Internet has been published” (see Qingdao at [41]). Similarly, just because the defendant posted the letter of demand on the Facebook Page does not mean that it was read by third parties, and this was what the claimants had to establish.

37     My views on the point are set out below.

The defendant did not dispute publication in his Defence

38     First, I accept the claimants’ submission that the defendant did not dispute the fact of publication in the Defence he filed in DC714 and DC715.

39     As noted, the main question is whether the letter of demand had been seen by third parties. In this regard, the court should not disregard the fact that a document was posted on Facebook just because its posting is no guarantee that it was read. After all, the facts surrounding the posting can give rise to a platform of facts from which the court can infer that publication has taken place. In Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128, the Court identified at [45] the considerations which might form the basis for this platform of facts:

(a)    First, the number of “likes”, “shares”, “reactions” and comments which a post draws might provide insight into the number of individuals who accessed it, especially since not every individual who reads the post will necessarily respond in such a fashion: Boltonv Stoltenberg [2018] NSWSC 1518 at [154] and [155], as upheld in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [102].

(b)    Second, the number of “friends” and “followers” the poster has on the relevant social media platform is also relevant in determining whether or not substantial publication has taken place: Pritchard v Van Nes [2016] BCJ No781 at [83].

(c)    Third, setting the privacy settings of the relevant post to “public” is also more likely to give rise to an inference that the defamatory statement had been accessed by third parties and that substantial publication arose: Doris Chia, Defamation: Principles and Procedure in Singapore and Malaysia (LexisNexis, 2016) (“Doris Chia”) at paras15.10 and 15.11.

(emphasis mine)

40     Turning to the pleadings, in [6]-[7] of their respective statements of claim filed in DC714 and DC715, Mr Thong and Mr Chow relied on the considerations set out at (b) and (c) above to establish publication. And notably, the defendant did not deny or not admit to the same. The relevant paragraphs are reproduced in the table below:

 

Statement of Claim

Defence

DC714

6. On 4th April 2022, the Defendant published and/or caused to be published on the Facebook Business Page a copy of a letter of demand from his lawyers Infinitus Law addressed to the Claimant. The letter of demand expressly stated the Claimant’s name at the top of the letter and made repeated references to the Claimant (the “LOD”). The publication bore the caption “Someone is going to get sued until pant drop”.

7. The Facebook business page is a public page which can be viewed by anyone on Facebook and is followed by 394 people. In addition, at least 16 of the Claimant’s Facebook Friends had also visited the page and seen the LOD. Publication has been ongoing from 4th April 2022 till date.

15. Paragraph 6 of the SOC is admitted insofar as the Defendant did publish and/or caused to be published a copy of Infinitus Law’s LOD on the Facebook Business Page.

…

20. Paragraph 7 of the SOC is admitted.

DC715

6. On 4th April 2022, the Defendant published and/or caused to be published on the Facebook Business Page a copy of a letter of demand from his lawyers Infinitus Law addressed to the Claimant. The letter of demand expressly stated the Claimant’s name at the top of the letter and made repeated references to the Claimant (the “LOD”). The publication bore the caption “Someone is going to get sued until pant drop”.

7. The Facebook business page is a public page which can be viewed by anyone on Facebook and is followed by 394 people. In addition, at least 16 of the Claimant’s Facebook Friends had also visited the page and seen the LOD. Publication has been ongoing from 4th April 2022 till date.

15. Paragraph 6 of the SOC is admitted insofar as the Defendant did publish and/or caused to be published a copy of Infinitus Law’s LOD on the Facebook Business Page.

…

Paragraph 7 of the SOC is admitted insofar as the Facebook business page is a public page which can be viewed by anyone on Facebook. The Defendant denies that at least 16 of the Claimant’s Facebook Friends had visited the page and seen the LOD. The Claimant is put to strict proof thereof.



41     This was significant. It is trite that the purpose of pleadings is to define the issues in dispute so that the litigation (and particularly, the trial) can be conducted fairly, openly, without surprise: Singapore Civil Procedure 2024 Volume 1, (Sweet & Maxwell) at [9/13/1]. Thus, if there are allegations which the defendant did not agree with, he had to traverse them in his Defence. However, the defendant did not do that. As seen, the furthest that the defendant went when denying publication was in DC715 where he denied that 16 of Mr Chow's Facebook friends had seen the letter of demand. Nowhere in the Defences which he filed in DC714 and DC715, did he deny, not admit, or put in issue the allegation that the letter of demand was seen by third parties.

42     In fact, this remained the defendant’s position in his affidavit of evidence in chief (“AEIC”) which he filed for both suits. Not only did he fail to deny, not admit, or put in issue the point of publication, he took the position that “posting the letter of demand on Facebook was necessary and justified”[note: 23] because doing so would “make it clear, once and for all, that [he was] not a director of the [Company]”.[note: 24]

43     Under these circumstances, I have considerable sympathy for the claimants’ submission that it is too late for the defendant to contest the fact of publication. Having failed to traverse the point in his Defence and maintaining this position in his AEIC, the defendant would have led the claimants to believe that (a) the element of publication was a non-issue such that (b) there was no need to lead any evidence on the point. It is too late for the defendant to change his position at trial,[note: 25] and to submit that the claimants failed to discharge their burden of proof.

44     In any event, I was of the view that the evidence indicated that the letter of demand was published to third parties (albeit to a limited extent).

Limited publication of the letter of demand to third parties

45     Apart from the pleadings, the evidence also supported the inference that the letter of demand (and hence, the Statements) had been read by third parties.

46     The starting point of the analysis is that there is no direct evidence as to the persons who saw the Facebook post and the letter of demand. Mr Thong’s evidence was that the only reason he believed that third parties saw the post is because “it’s a Facebook account”.[note: 26] And while Mr Chow claimed in his AEIC that at least 16 of his friends had viewed the post, he admitted in trial that he did not know for sure whether they saw it and that what he meant was that “they may have seen” it.[note: 27] Indeed, it was evident from his cross-examination that he had no concrete basis for asserting that 16 of his friends had viewed the post. In Mr Chow’s words:[note: 28]

Just---just that these are the people. I cannot assume that they have not seen it---seen my post, seen all these posts. I cannot assume that they never seen. I cannot assume that all have seen.

47     As such, the extent of publication had to be determined based on the facts surrounding the Facebook post.

48     In this respect, the claimants’ case was that (a) the defendant had posted the letter of demand so that the public would see it;[note: 29] (b) “an unknown number of multiple people would have seen the posts simply by virtue of it being published on the [Facebook Page] which had 394 followers”[note: 30]; and (c) “at least 10-20% [of the Facebook Page’s] 394 followers” would have seen the post.[note: 31]

49     I accepted the claimants’ submissions to a limited extent. As noted at [39] above, the following considerations are relevant:

(a)     the number of “likes”, “shares”, “reactions” and comments which the post drew;

(b)     the number of “friends” or “followers” the Facebook Page had; and

(c)     the privacy setting of the Facebook Page – whereby a “public” setting is more likely to give rise to an inference that the defamatory statement had been accessed by third parties and that substantial publication arose

50     I am prepared to accept that the fact that the Facebook Page was a public page which garnered 384 “Likes”[note: 32] serves as a “platform of facts” from which publication can be inferred. However, I am in no position to find that at least 10%-20% of the Facebook Page’s followers had seen the Facebook post and letter of demand.

51     In coming to this decision, I accept that the defendant had posted the letter of demand so that the public would see it. On his own evidence, he posted the letter of demand so that people would know that he was no longer the director of the Company.[note: 33] However, there is a difference between: (a) the defendant’s aims for posting the letter of demand on Facebook and (b) whether he achieved those aims. The former does not prove the latter. Just because the defendant wanted many people to read the letter of demand does not mean that many people did.

52     I turn to the claimants’ submissions that the Facebook Page had 394 followers. In this respect, it appeared that the parties had equated a Facebook page’s “followers” and with the number of “likes” that it had. Thus, even though the claimants’ pleaded that the Facebook Page had 394 followers, they did not refer to this figure at all in their AEICs. Instead, they referred to the number of “likes” the Facebook Page had.[note: 34] Possibly due to this, the defendant’s cross examination of the claimants proceeded on the number of “likes” that the Facebook Page had.

53     Be that as it may, little turned on this distinction because no evidence was led (whether factual or expert) to show the extent that the Facebook Page’s “likes” or “follows” translated into greater viewership of its Facebook posts. Now, I accept that it may be the case that a person who “liked” or “followed” a Facebook page would have a greater likelihood of receiving notifications of new posts from that Facebook page and/or having such posts appear on his/her news feed. And if so, there is a higher likelihood that such persons would read these posts. However, the extent of this happening turns on Facebook’s algorithm. And without any evidence to show the impact that such “likes” and “follows” had, I am unable to determine (or estimate) the number of people who would have read the post and letter of demand based on the Facebook page’s “likes” or “followers”.

54     What I thought was more telling was that the Facebook post containing the letter of demand had no likes, comments, or forwards. [note: 35] Now, I accept that this does not mean that nobody viewed the post. Afterall, it is completely conceivable for a person to choose not to like, comment, or forward the post after reading it. However, the complete lack of response undermined a finding that there has been extensive publication. It also buttressed the defendant’s submission that the claimants had no positive evidence as to the number of persons who viewed the post and the letter of demand.

55     For these reasons, I am of the view that the publication of the Facebook post and the letter of demand to third parties was limited.

56     I turn to set out my views on: (a) whether the Statements were defamatory; and (b) if so, whether a defence applied.

Statements 1, 3, and 4: Allegations that the claimants failed in their director duties

Statements 1, 3, and 4 were defamatory

57     As outlined at [29] above, I will set out my views on Statements 1, 3, and 4 together.

58     I begin with my views on the claimants’ Closing Submissions. In my view, these Closing Submissions were bare and lacking. They did not explain why each of the Statements that the claimants took issue with was defamatory. Instead, the claimants’ Closing Submissions made the generic and unsubstantiated allegations (presumably for all six Statements together) that “the words used by the [d]efendant were defamatory”,[note: 36] that the defendant had “made serious allegations about impropriety and criminal offences”[note: 37], that the claimants’ reputation “would have been lowered in the minds of any people who had come across the defamatory posts”,[note: 38] and that the words used “were highly defamatory and damaging to both of the [claimants’] reputations.”[note: 39]

59     Be that as it may, I am of the view that the Statements 1, 3, and 4 were defamatory in that they would lower the claimants in the estimation of right-thinking members of society generally: Golden Season at [36]. Broadly speaking, these statements alleged that the claimants failed in their duties as directors to properly account for the Company’s finances and accounts. Statements 1, 3, and 4 are reproduced for ease of reference:

(a)     Statement 1 is Header B and [7] of the letter of demand. It reads:[note: 40]

B.    Failure to account for the Company’s business and finances.

7.    Having set out the foregoing, we are instructed that both of you had failed as the directors, of the Company, to account for the affairs of the Company to our clients, including the state of the Company’s operations, business and finances.”

(b)     Statement 3 is the last sentence of [10] of the letter of demand. It reads:[note: 41]

10.    … However, both of you had blatantly failed, refused and/or neglected to conduct proper accounting and furnish our clients with FS 2020 when they requested the same.

(c)     Statement 4 is [12] of the letter of demand. It reads:[note: 42]

12.    Furthermore, both of you had blatantly failed, refused and/or neglected to account when specific enquires, with regards to the Company’s affairs were made to you. Your lack of transparency and failure to account to our clients is oppression of minority of shareholders’ rights contrary to Section 210 of the Companies Act 1967.

60     I formed this view not only based on the plain and ordinary meaning of these statements, but also when the letter of demand is considered as a whole. After all, it is trite that “the bane and the antidote must be taken together”: Golden Season at [37(e)]. And in this regard, the following paragraphs of the letter of demand are relevant:

(a)     [13]-[16] where it is alleged that the claimants failed to call for an annual general meeting (“AGM”) for the financial years 2020 and 2021 (“FY2020” and “FY 2021” respectively);[note: 43]

(b)     [10]-[11] where it is alleged that the claimants failed to furnish the financial statements for FY2020 and FY2021 (“FS2020” and “FS2021” respectively);[note: 44]

(c)     [12] where it is alleged that claimants failed to account when specific enquiries on the Company’s affairs were made.[note: 45]

61     Quite clearly, Statements 1, 3 and 4 were defamatory whether read in isolation or in the relevant context. Indeed, on the defendant’s own interpretation of Statements 1, 3, and 4 impugned the claimants in their roles as directors of the Company. On his case, all three statements alleged that the claimants had a duty to account for the affairs of the Company to the shareholders, but they had failed to do so.[note: 46] Not only that, Statement 3 went further to allege that the claimants had failed to furnish a copy of the financial statements for financial year 2020 despite the shareholder’s request. And Statement 4 further alleged that the claimants’ lack of transparency and failure to account amounted to minority oppression.

Statements 1, 3 and 4 were justified

62     I turn to the defendant’s defence of justification. Justification is an absolute defence in a civil defamation claim. To succeed in the defence of justification, the defendant does not need to prove the literal truth of the defamatory imputation. It is sufficient to prove the substantial truth of the defamatory imputation: Golden Season at [85]-[86]; Clerk & Lindsell on Torts (Sweet & Maxwell, 22 Ed, 2018) (“Clerk and Lindsell”) at [22-71].

63     In this regard, the claimants’ Closing Submissions were again lacking. No attempt was made to distinguish or explain why the defamatory imputation of each of the Statements was wrong. Instead, the claimants made broad and sweeping submissions for all six Statements. Namely, that even though the defendant bore the burden of proof, he had “provided absolutely no evidence of any worth”[note: 47] and that he had “done absolutely nothing of credit to establish his claims of justification and back up his version of events with tangible evidence.”[note: 48]

64     I accept that the defendant bore the burden of proving his defence of justification. However, I do not accept that there is no evidence to support the defence of justification. In my view, the defence of justification was established on the claimants’ own evidence. As elaborated below, the claimants’ own evidence showed:

(a)     First, that the claimants were directors of the Company. And as such, they were duty bound to call for AGMs and to lay the financial statements of the Company at these AGMs (see [66]-[68] below).

(b)     Second, notwithstanding their duties, they failed to call for AGMs or lay the financial statements before the Company for FY2020 and FY2021. And despite signing off on FS2020, both claimants did not take steps to ensure its accuracy (see [69]-[72] below).

Critically, however, the claimants made no attempt to deal with their own evidence.

65     In my view, the claimants’ breaches, together with the claimants’ failure to account to the shareholders, was a betrayal of the shareholders’ expectations and amounted to minority oppression (see [73]-[78] below).

The claimants as directors were obliged to call for AGMs and to account for the finances of the Company

66     It was common ground that both claimants were directors of the Company at the material time that the annual general meetings for FY2020 and FY2021 were to be called.

67     It was also uncontroversial that they were statutorily obliged to ensure that the Company call annual general meetings. Indeed, the claimants would have committed an offence if the Company did not do so. Sections 175(1)(b) and (4)(a) of the Companies Act 1967 read:

Annual general meeting

175.—(1)    Subject to this section and section 175A, a general meeting of every company to be called the “annual general meeting” must, in addition to any other meeting, be held after the end of each financial year within —

(a)    4 months in the case of a public company that is listed; or

(b)     6 months in the case of any other company.

…

(4)     If default is made in holding an annual general meeting —

(a)    the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty; and

(b)    the Court may on the application of any member order a general meeting to be called.

…

(emphasis mine)

68     Section 201(1) of the Companies Act 1967 further imposed a duty on the claimants as directors to “lay before the company at its annual general meeting the financial statements for the financial year in respect of which the annual general meeting is held”. And here, section 201(2) of the Companies Act 1967 provides that the financial statement must “give a true and fair view of the financial position and performance of the company”.

The claimants failed to call for AGMs, place financial statements before the Company, or ensure proper accounting

69     Notwithstanding their statutory duties, the claimants’ own evidence was that they failed to call for the AGMs for FY2020 and FY2021. Consequently, they also failed to lay FS2020 and FS2021 before the Company or its shareholders.

70     Starting with Mr Chow, his evidence was that he did not touch the finances of the Company. It was also his evidence that he did not ensure notices for the FY2020 and FY2021 AGMs were given to the shareholders because “the other director [was] taking care of it”:[note: 49]

Q    So, the long and short of it, I will speak---let me summarise it for you. Your position to this---before this Court today is as long as it comes to money, finances, financial statements, it is “none of my business because this is not my scope of responsibility”.

A    I---I won’t put it none of my business, but he has his job. I’m not touching the finances.

…

Q    You have failed to give notices of AGM to the shareholders for FY 2020 and FY 2021 as a director of the company. You may agree or disagree.

A    As my job scope, I agree that I did not do that part, but the other director is taking care of it.

(emphasis mine)

71     As for the "other director", Mr Thong admitted that even though FS2020 was uploaded onto the ACRA, the AGMs for both FY2020 and FY2021 were not called and that the financial statements for these financial years were not laid before the Company:[note: 50]

Q    Mr Thong, you are in Court today and these are reports obtained from a government body. It says AGM 21st of March 2021 last held, annual return last filed 5th of July 2021.

A    Yes, because Soon Seng, the corp sec---secretary filed a wrong report.

…

Q    But it is---you are not disputing that the financial statements for FY 2020 and 2021 were not given to your shareholders, correct?

A     Yes.

Q     You’re also not disputing that the AGM for these 2 years were not called by you.

A     Yes.

(emphasis mine)

72     Furthermore, the evidence showed that both claimants also failed to ensure proper accounting. The questions raised as to the contents of FS2020 went unanswered,[note: 51] and the evidence of both claimants showed that they did nothing to ensure FS2020's veracity. Mr Thong admitted to signing it blindly, and Mr Chow said he "assumed" that it was correct:

(a)     Even though Mr Thong accepted that he was obliged to conduct proper accounting,[note: 52] he admitted to signing off on FS2020 blindly and as such, failing in his duties:[note: 53]

Q:    We deny that, but assuming it is truth, you signed it blindly, right?

A     Yes.

Q    You are the director in 2020, correct?

A    Yes.

Q    Now, I put it to you that it is your obligation as the director of the companies to conduct proper accounting. You may agree or disagree.

A    Agree.

Q      And in this instance, especially financial statement 2020, you have failed utterly. You agree or disagree?

A      Agree.

(emphasis mine)

(b)     Mr Chow also accepted that he had a duty to ensure proper accounting.[note: 54] However, it was clear from his evidence that he did not ensure that FS2020 was accurate. On his evidence, he had simply “browsed through” FS2020 and “assumed” that they were correct.[note: 55]

Q    And I put it to you that you were aware, at all material times, that financial statement 2020 was produced.

A    No, I was not totally aware.

Q    You signed.

A    Yah.

Q    If it wasn’t produced, what did you sign, Mr Chow?

A     Basically, I just signed whatever I need to sign to complete the returns.

Q    Okay. So, you---did you [review] that document?

A    You mean the numbers?

Q      Did you [review] financial statements 2020?

A      Numbers, I just browsed through. I signed.

…

Q    It wasn’t important to you, okay, whether or not you are affixing your signature to a document which may be falsified, right?

…

A      ---I assume the numbers are correct.

Q      Oh, okay. So, you assume that the numbers were correct.

A      Yes.

(emphasis mine)

The claimants’ breaches amounted to minority oppression

73     I turn to consider the allegation of minority oppression. In determining whether there is prejudicial conduct that amounts to minority oppression, Hans Tjio, Pearlie Koh, Lee Pey Woan, Corporate Law (Academy Publishing) (“Corporate Law”) explains at [11.074] that prejudicial conduct includes situations where shareholder expectations are disappointed. It cites McGuinness v Bremner plc [1988] BCLC 673 (“McGuinness”) as an example of such prejudice. In McGuinness, there was delay of several months by the board of directors in convening a general meeting requisitioned by the petitioners.

74     In this case, the shareholders had a clear right to expect proper accounting, AGMs to be called in accordance with the provisions of the Companies Act 1967, and the financial statements to be placed at these AGMs. Indeed, if there was any doubt on the point, such doubt is put to rest by Articles 47(1) and 102(1) of the Company’s constitution which provided:[note: 56]

General meeting

47—(1)    An annual general meeting of the company must be held in accordance with the provisions of the Act.

…

Financial statements

102—(1)    The directors must –

(a)    cause proper accounting and other records to be kept;

(b)    distribute copies of financial statements and other documents as required by the Act; and

(c)    …

In this respect, “Act” is defined in Article 6(1) as “the Companies Act (Cap.50)”.[note: 57]

75     However, the expectations of the minority shareholders represented by Infinitus Law (see [8] above) were clearly disappointed. As seen at [69]-[72] above, the claimants failed to call for AGMs for FY2020 and FY2021, lay the financial statements for these financial years before the Company and its shareholders, or ensure proper accounting.

76     I am also of the view that the claimants’ failure to call for AGMs and lay the financial statements was a significant infringement of the shareholders’ rights. As explained in Corporate Law at [08.20], annual general meetings are when shareholders consider matters such as the company’s annual financial statements, and the directors and auditors’ reports. It is also there that shareholders may raise other issues for deliberation.

77     Indeed, the importance of AGMs and having the right to question the directors was underscored by how the claimants failed to account to the shareholders. To take one example, and on Mr Thong’s own evidence, even though the Company’s cash flow dropped by about S$100,000 between November 2020 and February 2021, this was never explained to the shareholders.[note: 58] While I am not saying that this drop in cashflow was due to improper reasons, the fact remains that the shareholders are entitled to know of the “drop” and why this was happening. And here, I found utterly unpersuasive Mr Thong’s claim that he would show them “eventually”.[note: 59] The drop in cashflow took place in 2020 to 2021. However, he still had not accounted for the drop three years later when he gave his evidence in April 2024.[note: 60]

78     Apart from failing to call for the AGMs, the claimants also failed to explain the omission when queried by the shareholders:

(a)     On or around 31 October 2021, one Mr Poh asked Mr Thong when the Company’s accounts would be completed. However, Mr Thong did not answer the question. Instead, he simply forwarded a link to a newspaper article titled “Jailed: Former Gleneagles Hospital…”[note: 61]

(b)     Similarly, Mr Chow accepted that he did not respond to the emails he received from the shareholders complaining that no AGM was called and that the financial statements were not provided to them.[note: 62]

Sub-conclusion

79     Under these circumstances, I had little doubt that the allegations set out in Statements 1, 3, and 4 were justified. As directors, the claimants were obliged to call for AGMs and to lay the financial statements before the Company for FY2020 and FY2021. But they failed to do so and ignored / disregarded the shareholder’s queries on the topic. This is a clear betrayal of the shareholders’ expectations which significantly infringed upon their right to understand the financial status of the Company and to make decisions based on the same. In my view, this justifies the allegation of minority oppression.

80     Given my findings on justification, it is unnecessary to make any findings on the pleaded defence of fair comment. In any case, I did not think that the defendant’s submissions on fair comment brought him very far. It is trite that whereas the defence of justification applies to statements of facts, the defence of fair comment applies to comments: Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 at [59]. However, there was no attempt by the defendant to distinguish which of the Statements were facts and which were comments. He opted instead to submit on both defences in the same breath, thereby giving the impression that he had conflated the two defences.

Statements 5 and 6: Allegations of misappropriation, wrongful use of Company’s funds, breach of fiduciary duty and criminal breach of trust

Statements 5 and 6 were defamatory

81     I turn to Statements 5 and 6. In these statements, the claimants were alleged to have wrongfully used and/or misappropriated Company’s funds. It was alleged that there were reasonable grounds for believing that the claimants breached their fiduciary duties and committed criminal breach of trust:

(a)     Statement 5 is Header D and [17] of the letter of demand. It reads:[note: 63]

D.    Misappropriation of Company funds

17.    Apart from your oppressive conduct, you also appear to have wrongfully utilized the Company’s funds and/or had misappropriated the same.

(b)     Statement 6 is [25] of the letter of demand. It reads:[note: 64]

25.    Based on the sequence of events, foreshadowed, our clients have reasonable grounds to believe that not only have the both of you breached your fiduciary duties to the Company, there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code.

82     Notwithstanding my views of the claimants’ submissions on the defamatory meaning of the Statements (see [58] above), I am of the view that Statements 5 and 6 are defamatory. I formed this view not only based on the plain and ordinary meaning of these statements, but also the paragraphs in the letter of demand drafted in support of Statements 5 and 6. These paragraphs are:

(a)     [18]-[19] of the letter of demand which asserted that the claimants had caused the Company to make monthly CPF contributions to Mr Thong’s friends and relatives even though they did not work for the Company and as such should not be paid by the Company;[note: 65] and

(b)     [20]-[24] of the letter of demand which asserted that Mr Thong had incurred an exorbitant amount to reinstate the premises and that the reinstatement included works that was not required.[note: 66]

83     Quite clearly, therefore, Statements 5 and 6, whether read alone or in the relevant context, were alleging serious wrongdoing on the part of the claimants. This undoubtedly would have lowered the claimants in the estimation of right-thinking members of society.

Statements 5 and 6 were justified

84     I turn to the defence of justification. In this respect, I do not think that the assertion that the claimants paid too much to reinstate the property assisted the defendant. The point was not well substantiated. No objective evidence (e.g. through an expert) was led on what it would have cost to reinstate the premises. Instead, all I had was the defendant's own partisan view on the point. Furthermore, even if the assertion was true, it would not have merited the serious allegations made in Statements 5 and 6. It might have justified allegations of negligence. But it certainly does not justify allegations of misappropriation and/or wrongful use of Company funds, breach of fiduciary duty, and criminal breach of trust.

85     What was more relevant was the assertion that the claimants caused the Company to pay Mr Thong's friends and family even though they did not work for the Company. In this respect, and as I will elaborate:

(a)     It was the claimants’ own evidence that they caused the Company to pay Mr Thong’s friends and family who did not work for the Company. Notably, they did not deny this assertion. Instead, they claimed that the paying of CPF contribution to these persons was “to enable the Company to engage foreign workers” (see [86]-[91] below).

(b)     Causing the Company to pay persons who did not work for the Company (or “phantom workers” for ease of reference) is quite clearly wrongful utilisation and/or misappropriation of the Company’s money (see [92]-[98] below).

(c)     It is also a sufficient basis to assert reasonable grounds there was breach of fiduciary duties (see [99]-[108] below) and criminal breach of trust (see [109]-[114] below).

Using the Company’s funds to pay phantom workers associated with Mr Thong

86     In the letter of demand, it was alleged at [18] that the claimants had caused the Company to make monthly CPF contribution to nine persons related to Mr Thong. These persons included his wife, six of his relatives, and two of his friends. It was further alleged at [19] of the letter of demand that these persons did not work for the Company and as such should not have been paid by the Company.[note: 67]

87     The claimants all but admitted to these allegations in their joint Opening Statement. Therein, the claimants did not deny that the existence of this practice or that the claimants were perpetuating this practice. Instead, the claimants sought to legitimize the payments by stating that “the CPF was to enable the Company to engage foreign workers”:[note: 68]

36.    … The allegation about CPF to justify the allegation about misappropriation is an afterthought and the Defendant is fully aware that this act was not a misappropriation. The CPF was done to enable the Company to engage foreign workers and the Defendant was fully aware of this and chose to flagrantly mislead the Court otherwise.

(emphasis mine)

88     The claimants maintained this position when they took the stand. I start with Mr Thong. After he was referred to the aforesaid paragraph in the claimants’ Opening Statement, he admitted that the Company was making CPF contributions to “phantom workers” and that he knew this was illegal:[note: 69]

Q      Now, would you agree with me that this is an admission that the company has made CPF contributions to phantom workers?

A      Some of it.

Q      Yes or no?

A      Yes.

Q    And you know what phantom workers meant, right?

A    Yes.

Q    Do you know that it is illegal in Singapore to engage phantom workers?

A    This is---

Q      Do you know that it is illegal in Singapore to engage phantom workers?

A      Yes.

Q    But you, nonetheless, went ahead with that, right?

A    It started out with Terence.

Q    Now, Mr Thong---

A      Yes.

Q      ---I know you want to point fingers at certain directions but my question to you is you knew that it was illegal, right?

A      Yes.

Q    You do not admit that it started from Mr Yong.

A    Yes.

Q    Assuming that it did, you, as director, continued with that practice, correct?

A      Yes.

(emphasis mine)

89     As for the identities of these phantom workers, Mr Thong confirmed that the Company’s CPF statements showed that the Company was making CPF contributions to both his wife and his family members in March 2021. He also stated that save for his wife, the rest of these persons were paid CPF contributions “mainly for headcount” so that the Company could “engage more foreign workers”:[note: 70]

Q    ... These are your family members.

A      Yes.

Q    Right? Now, would you agree with me if I suggest to you, Mr Thong, that the CPF contributions of 6,178 was made in a month simply for you to engage foreign workers. This is disproportionate, isn’t it? With $6,178 of CPF contributions, you could have engaged many Singaporeans to work there.

A    But my wife do work for the company, during that point of time.

Q    Very well, apart from your wife?

A    Some is mainly for headcount.

Q      So, that you can engage more foreign workers, right?

A      Yes.

(emphasis mine)

90     In a similar vein, Mr Chow’s evidence was that “the people working on the ground are …. most of them are foreign workers. So without paying phantom workers, these workers would not have existed”,[note: 71] and that this practice of paying phantom workers already existed when the defendant handed over management of the Company to him.[note: 72]

91     To sum up, the net effect of the claimants’ case at trial was that they were perpetuating the practice of paying phantom workers who did not work for the Company to engage foreign workers.

Paying phantom workers is wrongful utilisation and/or misappropriation of Company’s funds

92     Given the claimants’ admissions, I had expected at least some attempt on the claimants’ part at legitimising the payment of phantom workers. This is especially so if, as the claimants’ solicitors argued in costs submissions (see [147] below), they believed that they had strong grounds for making these payments. However, the claimants’ closing submissions were completely silent on the point. They made, instead, the unconvincing argument that the defendant did not discharge his burden of proof because there was “absolutely no evidence of any worth” (see [63] above).

93     Under these circumstances, and given the claimants’ own admissions, I had little doubt that Statement 5 was justified. Paying phantom workers is quite clearly wrongful utilisation and/or misappropriation of Company’s funds.

94     The definition of “misappropriation” was set out in Tan Tze Chye v Public Prosecutor [1997] 1 SLR(R) 876 (“Tan Tze Chye”) which was cited by the Court of Appeal in Chew Eng Han v Public Prosecutor [2017] 4 SLR 474 (“Chew Eng Han”) at [57]. Tan Tze Chye concerned a prosecution for criminal breach of trust under section 409 of the Penal Code 1871. And one of the questions raised was whether the appellant in that case had dishonestly misappropriated property. In that context, Yong Pung How CJ defined “misappropriate” to mean “to set apart or assign to the wrong person or wrong use”:

37.    To “misappropriate” means to set apart or assign to the wrong person or wrong use, and this must be done dishonestly. Setting aside property by one person for the use of another other than himself and the true owner can also constitute misappropriation; see Tan Sri Tan Hian Tsin v PP [1979] 1 MLJ 73 where criminal breach of trust was committed by the MD of the company which paid money into the bank account of another company of which he and his wife were the sole shareholders. Therefore, in this case, setting aside property for the appellant as well as his brother’s firm could both constitute misappropriation.

(emphasis mine)

95     Adopting this definition, paying CPF contribution to phantom workers is quite clearly misappropriation. It sets aside / assigns funds to persons who have no right to them. Paying such persons is also clearly wrong and detriments the Company by depriving it of funds which could otherwise be used for legitimate business purposes and operating costs (e.g. paying employees who actually worked). Indeed, if nothing else, such monies could have been applied to the Company’s debts, liabilities, and finally paid back to the shareholders assuming the Company were wound up.

96     In my view, it did not assist the claimants to claim (as they did in cross examination) that purpose of paying phantom workers CPF contribution was so that the Company could increase its foreign worker quota. First, the stated purpose does not take away from the fact that the Company was paying phantom workers who did not work for it. Second, the stated purpose amplified the wrongfulness of these payments. As the claimants accepted, paying phantom workers CPF contribution to get foreign worker quota is illegal. It involved making false declarations / representations (i.e. the number of locals employed) to the authorities. And in this respect, section 22(1) of the Employment of Foreign Manpower Act 1990 provided amongst other things:

22.—(1)    Any person who —

...

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

shall be guilty of an offence and shall be liable on conviction —

...

(i)    in the case of an offence under paragraph (d), (e) or (f) — to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both;…

(emphasis mine)

97     I turn to another assertion that the claimants advanced in trial but not their closing submissions. Namely that the paying of phantom workers was a practice started by the defendant and that they were simply continuing it:

(a)     As a starting point, I did not think it was fair to allow the claimants to rely on this assertion. The assertion is a serious one. However, it was not pleaded or set out in either claimant’s AEIC. To make a finding on this point would prejudice the defendant unfairly by depriving him of the opportunity to marshal the relevant rebuttal evidence. And indeed, I should note that the defendant denied this allegation when it was put to him at trial.[note: 73]

(b)     In any event, even if the assertion were true (a point that I am not finding), the fact remained that the Company was continuing to pay workers who did not work, and that this is for an illegal purpose. It may be that the defendant was in breach when he was a director. However, the fact remains that the claimants were in charge at the material time, and on their own evidence, they had perpetuated the wrong.

(c)     And in this regard, even if I accepted the argument that the claimants were “forced” to continue on with this illegal practice when they first took over management of the Company in November 2020 (see [12]-[16] above), it does not explain why the claimants continued the practice months after they took over (see [89] above).

98     Under these circumstances, Statement 5 was quite clearly justified.

Paying phantom workers gives rise to reasonable grounds to believe that the claimants breached their fiduciary duties

99     As noted, Statement 6 alleged that there were reasonable grounds to believe that: (a) the claimants had “breached [their] fiduciary duties to the Company; and (b) “there may be liability for criminal breach of trust pursuant to section 409 of the Penal Code”.

100    I start with the assertion that there were reasonable grounds to believe that the claimants had breached their fiduciary duties to the Company.

101    As a starting point, it is uncontroversial that the claimants owed fiduciary duties to the Company by virtue of their directorship. As explained in Credit Suisse Trust Limited v Ivanishvili, Bidzina [2024] SGCA(I) 5 (“Credit Suisse”) at [42], fiduciary duties are distinguished by the fiduciary’s obligation of loyalty. The scope of fiduciary duties include:

(a)     the no-profit rule which prohibits a fiduciary from obtaining an advantage out of their fiduciary position without the informed consent of the principal;

(b)     the no-conflict rule which prohibits a fiduciary from placing themselves in a position of conflict of interest with their principal; and

(c)     the duty to act in the best interest of the principal.

102    As regards a director’s fiduciary duty to act in the best interest of his company, Credit Suisse explained at [45] that determining whether a director had acted honestly and in good faith in the interest of his company has subjective and objective elements. In this respect, the court will consider whether the director had acted bona fide in what he considered / believed (and not what the court considers) to be in the interest of the company. However, the director’s subjective belief (or claimed belief) is not determinative. Where the transaction / decision is not objectively in the company’s interest, the court will consider whether an intelligent and honest director could have reasonably believed that the transaction / decision was for the company’s benefit. If the answer is no, that could lead to the inference that the director had not acted honestly.

45    In the context of company law, it is well established that directors owe a fiduciary duty to act honestly and in good faith in the best interests of their company, such a duty being the “distinguishing obligation of a director”: BIT Baltic Investment & Trading Pte Ltd (in compulsory liquidation) v Wee See Boon [2023] 1 SLR 1648 at [31]–[33]. The test involves both subjective and objective elements. The court considers whether, in entering into a transaction or exercising a discretion (or omitting to do so), the director had acted bona fide in what the director considered or believed (and not what the court considers) to be in the interests of the company. A director might not be liable for an outcome that subsequently turns out to be financially detrimental if the decision to embark upon the course of action that led to that negative outcome was an honest commercial decision. In this sense, the focus is on the decision-making process rather than on the outcome of the action. However, the director’s subjective belief (or claimed belief) is not determinative. Where the transaction or decision is not objectively in the interests of the company, the court then considers whether an intelligent and honest director could, in the circumstances, have reasonably believed that the transaction or decision was for the benefit of the company. A negative answer could lead to the inference that the director had not acted honestly: Goh Chan Peng and others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592 at [35]–[36]. A dishonest director will be in breach regardless of whether he claims to have been acting in the interests of the company: Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 at [39].

(emphasis mine)

103    In the present case, the claimants were asserting a subjective belief that paying phantom workers was in the interest of the Company. I was not prepared to accept this assertion.

104    On an objective basis, spending Company’s money on phantom workers is contrary to the Company’s interests:

(a)     First, the practice diverted and deprived the Company of funds which it could use for other legitimate business purposes.

(b)     Second, saying that these payments were intended to increase the Company’s foreign worker quota did not help matters. Paying on that basis is a crime, and it exposed the Company to criminal liability (see [96] above). It is thus difficult to see how an intelligent and honest director could have reasonably believed that adopting such a practice is in the Company’s interest. This is especially so where the directors in question were aware of the practice’s criminality.

105    Under these circumstances, I needed something more than bare assertions before I was prepared to accept the claimants’ claimed belief that paying phantom workers was in the Company’s interests. In this regard, I accord some weight to the fact that the claimants had effectively admitted to a crime. However, it is not conclusive. And when considered as a whole, the claimants’ evidence was poor. Amongst other things,

(a)     Neither claimant deposed to the same in their respective AEIC.

(b)     It was not explained why the claimants needed to perpetuate this illegal scheme months after they took over management of the Company (e.g. the claimants had tried but failed to hire Singaporeans).

(c)     No objective evidence was led to show that foreign workers were in fact hired pursuant to the payment of phantom workers.

Indeed, it also did not help that the claimants’ closing submissions was completely silent on the point. This indicated that the claimants did not intend to rely on it.

106    For the reasons set out at [97] above, I also did not give much weight to the claimants’ assertion that it was the defendant who started this practice.

107    Finally, and for completeness, the case that Mr Thong breached his fiduciary duties is even stronger. It is his friends and family who are benefiting from the payment. As such, Mr Thong would undoubtedly be in breach of the no-conflict rule by authorizing the payments.

108    Under these circumstances, I find the assertion in Statement 6 that there are reasonable grounds to believe that the claimants breached their fiduciary duties is justified.

Paying phantom workers gives rise to reasonable grounds to believe that the claimants committed criminal breach of trust

109    I turn to the assertion in Statement 6 that there were reasonable grounds to believe that the claimants may be liable for criminal breach of trust under section 409 of the Penal Code 1871.

110    Section 409 of the Penal Code 1871 concerns criminal breach of trust by, inter alia, a person “in his capacity as a director of a corporation”. Section 409(1)(d) provides:

409.—(1)     Whoever, being in any manner entrusted with property, or with any dominion over property —

…

(d)     in his capacity as a director of a corporation;

…

commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.

(emphasis mine)

111    In this case, it was clear that the claimants’ decision to pay phantom workers was taken in their capacity as directors of the Company. It is their own evidence that they were managing the Company’s operations as directors.[note: 74] And quite clearly the payment of phantom workers was as part of their management of the Company’s operations. On their evidence, these payments were made to increase the Company’s foreign worker quota.

112    Accordingly, section 409 of the Penal Code 1871 would be engaged if an offence of criminal breach of trust had been committed. In this regard, section 405 of the Penal Code 1871 provides that criminal breach of trust would be committed if, amongst other things, a person who was entrusted with property, or with dominion over property, dishonestly misappropriates that property:

Criminal breach of trust

405.     Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or intentionally suffers any other person to do so, commits “criminal breach of trust”.

…

(emphasis mine)

113    For the reasons set out at [94]-[97] (above), I am of the view that using the Company’s funds to pay phantom workers constitutes dishonest misappropriation of Company’s funds.

114    Consequently, I am also of the view that Statement 6 is justified in that there were reasonable grounds to believe that “there may be liability for criminal breach of trust under section 409 of the Penal Code.”

Sub-conclusion

115    For the reasons above, I am of the view that Statements 5 and 6 though defamatory, are justified. In the circumstances, I will not comment on the defence of fair comments save to say that my views as set out at [80] above applies here as well.

Statement 2: The allegation that Mr Thong forcefully and wrongfully gained control and refused to return the Company’s invoices and books

Statement 2 is defamatory

116    Statement 2 concerned only Mr Thong. At [8] of the letter of demand it alleged:[note: 75]

8    … prior to Mr Yong’s removal as director of the Company… Mr Thong forcefully and wrongfully gained control of the Company’s invoices and books (from October 2019 onwards) … through the Company’s accountant and refused access of the same to Mr Yong, even though Mr Thong is not entitled to retain the Company’s financial documents…

117    Mr Thong pleaded that the natural and ordinary meaning of Statement 2 was that:[note: 76]

(a)     Mr Thong had forcefully and wrongfully obtained control of the Company’s invoices and books;

(b)     he refused to return them to the defendant; and

(c)     he had failed in his duties as a director, was incompetent in his work and role as a director, was not responsible in his work as a director, was not credible or diligent in his work as a director, and had behaved wrongly and contrary to his roles and duties in the Company.

118    I accept that the first two pleaded meanings are borne out of Statement 2 and that they are defamatory. Indeed, the use of the words “forcefully and wrongfully” gives the impression that Mr Thong had acted unreasonably and without regard to the Company’s policies when obtaining the documents in question. Further, the allegation that he refused to return the documents indicated that Mr Thong wanted to control these documents even though he had no right to them. This certainly would lower Mr Thong in the estimation of right-thinking members of society.

119    However, I reject the pleaded meanings as set out at [117(c)] above. These other meanings presuppose that Mr Thong was a director at the material time. However, the letter of demand makes clear that this is not the case:[note: 77]

(a)     First, on the face of [8] of the letter of demand, Mr Thong had gained control of the documents “prior to [the defendant’s] removal as the director of the Company.

(b)     And when read together with [3] and [4] of the letter of demand, it is clear that Mr Thong was not a director at this point. It is stated clearly in [3] that the defendant was removed as director on 4 November 2020 and in [4] that Mr Thong was appointed director on 18 November 2020.

In the circumstances, it is difficult to see how Statement 2 could have impugned Mr Thong in his role as the Company’s director.

Statement 2 is not fully justified

120    I turn to the defence of justification.

121    I reject the defence of justification insofar as it pertained to the allegation that Mr Thong had “forcefully and wrongfully” gained control of the Company’s invoices and books. Even though Mr Thong was not a director at that point and did not have a right to the documents, the defendant’s own evidence was that he had voluntarily passed Mr Thong the relevant documents upon the latter’s request. Referring to various WhatsApp messages between himself and Mr Thong, the defendant explained in re-examination that:[note: 78]

(a)     Mr Thong had requested for the documents because his wife wanted to go through the books; and

(b)     In response to this request, the defendant stated “No worries. Will pass to u by end of this week”.

122    I set out my brief thoughts on the defence of fair comment before proceeding to the second allegation in Statement 2 that Mr Thong refused to return the documents. In my view, even if Statement 2 could be considered a comment (a point which I did not accept for the reasons at [80] above), the defence of fair comment cannot succeed given the defendant’s own evidence. It is trite that for the defence of fair comment to succeed, it must be based on true facts: Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) at [13.021]. However, the defendant himself makes clear that contrary to the allegation in Statement 2, Mr Thong did not obtain the relevant documents “forcefully and wrongfully”.

123    I move to the second allegation in Statement 2 that Mr Thong refused to return the documents subsequently and that this is wrongful. In my view, this is justified. Now, it may be that Mr Thong was entitled to retain the documents after he was appointed director. However, the allegation about Mr Thong refusing to return the documents concerned a period when Mr Thong was not the Company’s director. At that period, the defendant was the director. And when the defendant asked for them in his WhatsApp message of 21 October 2020, Mr Thong refused to return the documents. Mr Thong responded on the same day stating that he “will be keeping the documents”.[note: 79]

124    I touch briefly on section 8 of the Defamation Act 1957. It provides:

Justification

8.    In an action for libel or slander in respect of words containing 2 or more distinct charges against the claimant, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation having regard to the truth of the remaining charges.

125    I accept that it may be arguable that section 8 applied to Statement 2. However, I decline to make any such finding in my judgment. It is trite that the defendant bears the burden of proving the defence of justification. There is little doubt that the defendant was aware of this provision given that he had referred to it at [18] of his closing submissions. Notwithstanding, the defendant did not submit that the provision applied to Statement 2 even though it must have been apparent to him (or at least, his counsel) that there is a risk that I would find that Statement 2 was not fully justified. Afterall, his own evidence made clear that Mr Thong did not gain control of the Company’s invoices and books “wrongfully and forcefully”. In the circumstances, if he did not think it necessary to make any submissions on the point, I can only assume that he did not intend to rely on the provision. And in this regard, the defendant has not appealed against my decision.

Sub-conclusion

126    For the reasons above, Mr Thong succeeds in his defamatory claim for Statement 2 to the extent that it alleged that he had “forcefully and wrongfully” obtained the documents. I turn to damages.

Damages

127    The claimants’ claimed both general and aggravated damages in this suit as summarised below:[note: 80]

Statement

Mr Thong’s claim (S$)

Mr Chow’s claim (S$)

Statement 1

5,000

5,000

Statement 2

5,000

NA

Statement 3

5,000

5,000

Statement 4

10,000

10,000

Statement 5

30,000

30,000

Statement 6

30,000

30,000

Aggravated damages

30,000

30,000

Total

115,000

110,000



128    For the reasons above, both claimants have failed in their defamatory claim for Statements 1, 3, 4, 5 and 6. And Mr Thong has succeeded partially for Statement 2. As such, I only need to award damages for Statement 2.

General damages

129    The function of general damages for defamation is not controversial. They act as a consolation for the distress suffered from the publication of the statement, repair the harm to the victim’s reputation, and serve to vindicate his reputation. To that end, the Court may consider the following factors: (a) the nature and gravity of the defamation; (b) the conduct, position and standing of the plaintiff and the defendant; (c) the mode and extent of publication; (d) the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict; (e) the failure to apologise and retract the defamatory statement; and (f) the presence of malice: Lim Eng Hock Peter v Lin Jian Wei [2010] 4 SLR 357 (“Peter Lim”) at [3]-[7].

130    The application of these principles is seen in Koh Kok Cheng v Vernes Asia Ltd [1993] SGHC 23 (“Koh Kok Cheng”). That case concerned a letter of demand which stated that the claimant owed the defendants a substantial sum of money. The Court found the letter of demand defamatory because it suggested that the claimant was unable or unwilling to pay up his debts or is a person who does not fulfil his contractual obligations. The Court awarded S$2,000 to the claimant after considering:

(a)     the above suggestions are not “too serious” because they do not impute dishonesty or fraud;

(b)     there was limited publication;

(c)     the claimant’s employment as an accountant at the material time; and

(d)     the defendants’ failure to apologise and attempts to justify what they wrote.

131    In my view, Koh Kok Cheng is instructive for the following reasons:

(a)     First, like Koh Kok Cheng, the defamatory meaning which Mr Thong succeeded on– he had “forcefully and wrongfully” gained control of the Company’s books and invoices – was not serious. It does not impute dishonesty or fraud. At most, it suggested that Mr Thong had acted unreasonably and without regard to the Company’s policies when obtaining the documents in question (see [118] above).

(b)     Second, like Koh Kok Cheng, Mr Thong had only established limited publication of the defamatory statement (see [45]-[55] above).

(c)     Third, like the claimant in Koh Kok Cheng, Mr Thong’s professional reputation would have suffered because of the defamatory statement. Just like how accountants are distinguished by their reliability and suggestions of being unwilling / unable to pay on one’s debt would injure their professional reputation, businessmen have professional reputations as well. And here, the suggestion that Mr Thong acted unreasonably and without regard to Company policy would impact that.

(d)     Fourth, like Koh Kok Cheng, the defendant in this case refused to apologise and attempted to justify the defamatory statement.

132    That said, unlike Koh Kok Cheng where the defamatory statement was wholly unjustified, the suggestions raised by the defamatory statement in this case were partially justified. After all, even though Mr Thong had obtained the documents in question legitimately, he refused to return them when the defendant (who was the then director) asked for them (see [123] above).

133    Under these circumstances, I was of the view that the general damages that Mr Thong should be awarded should be less than Koh Kok Cheng. In my view, S$1,500 in general damages is fair.

Aggravated damages

134    It is well established that aggravated damages may be awarded where the motive or the conduct of the defendant has increased the injury to the plaintiff. In assessing the quantum of aggravated damages to be awarded, the factors that the Court will consider include: (a) the failure to apologise; (b) a plea of justification which is bound to fail; and (c) malice. Importantly, the principle of proportionality applies to the award of aggravated damages. Caution has to be exercised to avoid double counting for distress caused to the plaintiff: ATU v ATY [2015] 4 SLR 1159 at [51]-[54].

135    In the present case, I have already accounted for the defendant’s failure to apologise and the fact that the defendant had unsuccessfully raised a plea of justification. As such, I need only consider the issue of malice.

136    In this respect, it was Mr Thong’s submission that the defendant’s defamation was malicious and motivated by malice, vengeance and egomania.[note: 81] This, Mr Thong submitted, is evidenced by how the defendant changed the name of the Company’s Facebook Page to Mr Thong’s name. According to Mr Thong, this “was part of the Defendant’s calculated and malicious plan to maximise the reach of his defamatory posts.”[note: 82]

137    While I do not think that it is right to say that the defendant’s posts were motivated by egomania, I am prepared to accept that the defendant was upset with Mr Thong and he had acted on these feelings. In this respect, it is explained in Clerk and Lindsell at [22-214] that a claimant may be able to show malice from extrinsic facts that the defendant harbored feelings of spite and ill-will, and it may be inferred that the publication was prompted by such feelings, and not by a legitimate motive.

138    In the present case, the defendant claimed to have posted the letter of demand on Facebook to “make it clear, once and for all, that [he is] not a director of [the Company]”.[note: 83] I was unable to accept this. If this was truly his intention, he could have posted a message on the Facebook Page to state that he is no longer a director. And if he wanted to ensure that there is no doubt, he could have even posted a copy of an ACRA search of the Company.

139    However, that is not what the defendant did. After changing the name of the Facebook Page from Killiney Mount Elizabeth Novena Hospital to Mr Thong’s name, the defendant posted mocking messages and pictures on the Facebook Page (see [21] above) as if to gloat that the Killiney store was going to shut down. The defendant also posted the words “Someone is going to get sued until pant drop” together with the letter of demand (see [23] above). Quite clearly, the defendant had posted the letter of demand on Facebook because he was unhappy with the claimants. The defendant had quite likely wanted to embarrass them.

140    As such, I award aggravated damages of S$500 to Mr Thong on top of the S$1,500 which I had awarded him for general damages.

Costs

Liability for costs

141    I turn to the costs to be awarded for the two actions and start with liability for costs.

142    Starting with DC715, as the defendant succeeded wholly in his defence against Mr Chow, he is entitled to costs.

143    As for DC714, the defendant should also be awarded costs as he is the substantial winner. In coming to this decision, I am guided by Afro-Asia Shipping Co (Pte) Ltd v Da Zhong Investment Pte Ltd and others [2004] 3 SLR(R) 274 (“Afro-Asia”) at [21], the High Court referred to the following passage of the English Court of Appeal in Swale Storage and Distribution Services Limited v Sittingbourne Paper Company Limited [The Times, 30 July 1998]:

One gathers from that that in the appropriate case the court should look at the substance of the matter and the substance of the result of the trial. It can also be drawn from Oksuzoglu that where there is a limited recovery by the plaintiff, questions of a particular order for costs do not arise only and exclusively where the plaintiffs’ success has been purely nominal. Brooke LJ refers to recovery of between 1% and 3% of the original claim: I am not seeking to lay down the strict parameters, but that is by way of illustration.

I draw from the two cases that I have mentioned, bearing in mind that one has the benefit in Oksuzoglu of the review of these previous authorities, the proposition relevant to this case that where there are separate claims in a trial and only on some of which the plaintiff succeeds; or, and this may often be the same thing, there is a recovery of very much less than the total; the court should at least consider whether it should ask itself: who was the real winner? What was the event? I emphasise that that does not mean, and there is no justification in the authorities for supposing, that in the ordinary run of cases the court should, or even may, try to determine costs by minute examination of what are not, in truth, clear and distinct issues of liability, but rather only facets of, or ways in which it is sought to prove, a single issue. That warning is, in particular, to be drawn from the criticism that the Court of Appeal made in Elgindata of the approach that had been adopted by the trial judge in that case.

(emphasis mine)

144    I had little doubt that the defendant had substantially succeeded in this DC714. Even though Mr Thong had obtained judgment of S$2,000, that must be viewed in the overall result of the trial. In this case, Mr Thong took issue with six Statements in the letter of demand (see [26] above). However, he succeeded only partially on Statement 2 which was the least serious of the Statements (see [116]-[126] above). The net result is that even though he made a claim of S$115,000 (see [127] above), he obtained only S$2,000. This is less than 2% of the claimed sum.

Quantum

145    Turning to quantum, the defendant’s solicitors highlighted a Calderbank letter which they served on the claimants on 19 April 2024 (i.e. 3 days before trial started on 22 April 2024). In that Calderbank letter, the defendant offered to pay the claimants S$1,500 each. On that basis, the defendant sought a total of S$56,000 for both suits on an indemnity basis.

146    The claimants’ solicitors disagreed. They argued that the defendant’s Calderbank letter was not genuine because there was no real prospects of acceptance. According to the claimants’ solicitors,

(a)     In respect of Statements 1, 3 and 4, the claimants had genuinely taken the view that they had properly accounted for the affairs of the Company; and

(b)     In respect of Statements 5 and 6, while the claimants accepted that they were making payments to phantom workers, both he and the claimants held the firm belief that they had a strong defence because but for these payments, the Company would not have been able to hire foreign workers.

147    I was not convinced by the claimants’ submissions. In my view, the reasonableness or otherwise of the Calderbank letter must take into account the merits of the claimants’ case. And here, it must have been clear to the claimants that the merits of their case were not strong. Indeed, this is not a case where the claimants lost because of any true controversy. It would be recalled that the defendant’s defence of justification for Statements 1, 3, 4, 5, and 6 rested on the claimants’ own admissions. Now, I appreciate that the claimants may be laypeople who might not be able to properly assess the merits of their respective cases. However, this is no excuse. They had the assistance of legal counsel who presumably would have advised them on the merits of their case.

148    In any event, it was difficult to accept that the claimants (or their solicitors) truly believed that the claimants’ actions were kosher. If this truly was the case, it is unclear why the claimants never made those submissions in their closing submissions.

149    Under these circumstances, I am of the view that the Calderbank letter was a reasonable one and it is a factor that I should take into account when awarding costs.

150    Be that as it may, I did not think that S$56,000 is reasonable. While two suits were filed, there was substantial overlap in issues and work. Five of the six statements concerned both claimants. There was also only one trial which spanned three days. The documents were not voluminous and only one set of submissions were prepared for both suits. I also did not think that the defendant was reasonable in some of the positions he took. For instance, even though the Statements were clearly defamatory, he contested the same.

151    Taking matters in the round, I fix costs as follows:

(a)     For DC714, costs is fixed at S$17,000 plus GST plus reasonable disbursements to be paid by Mr Thong to the defendant.

(b)     For DC715, costs is fixed at S$18,000 plus GST plus reasonable disbursements to be paid by Mr Chow to the defendant.

152    The costs of DC714 has been moderated downwards to account for Mr Thong’s partial success for Statement 2.

Conclusion

153    For the reasons above, while I find all six Statements defamatory, the defence of justification is established for five of them:

(a)     Statements 1, 3, and 4 alleged, inter alia, that the claimants breached their duty to account for the Company’s affairs and to furnish financial statements. It is also alleged that this lack of transparency amounted to minority oppression. These allegations were justified on the claimants’ own evidence. The claimants admitted that as directors, they owed a duty to call for AGMs and to lay the Company’s financial statements before the Company and its shareholders. Notwithstanding, they failed to: (i) call for AGMs for FY2020 and FY2021; (ii) lay FS2020 and FS2021 before the Company and its shareholders; and (iii) account for the Company’s affairs even when there was a sizable depletion of the Company’s cashflow.

(b)     Statements 5, and 6 alleged that there has been wrongful utilisation and/or misappropriation of Company funds. They also alleged reasonable grounds for believing that there has been breach of fiduciary duty and criminal breach of trust.

These statements were justified. On the claimants’ own evidence, they had caused / permitted the Company to pay phantom workers related to Mr Thong. Such payments would have depleted the Company’s funds wrongfully. The stated purpose of these payments—to inflate the Company’s foreign worker quota—also did not assist the claimants. It does not detract from the fact that the Company’s funds were still being depleted. Furthermore, the stated purpose is illegal and exposed the Company to criminal liability. I was also not convinced by the excuse that the claimants were simply carrying on the defendant’s practices. Even if true, the claimants had taken over management and they were in charge. And in this regard, there is no evidence that the claimants tried to stop this illegal practice. To the contrary, the evidence showed that they continued to perpetuate this wrong even months after they took over and no good reason was given to explain this.

154    For the remaining Statement 2, I did not think that the defences of justification or fair comment applied fully. Even though Mr Thong refused to return the Company’s books and invoices, it is incorrect to say that Mr Thong obtained them “forcefully and wrongfully”. It was the defendant’s own evidence that he passed these documents to Mr Thong voluntarily. Accordingly, there is no factual basis for either defence to apply to this part of Statement 2.

155    As for the damages to be awarded, Statement 2 was the least defamatory of the Statements. It alleged neither fraud nor dishonesty, publication is limited, and indeed, part of its sting was justified. That said, the defendant failed to apologise and sought to justify Statement 2. I was also of the view that there was some level of malice. Accordingly, I award Mr Thong S$2,000 in damages (inclusive of aggravated damages).

156    The net effect of the above is that Mr Chow has failed completely in his action and Mr Thong has failed substantially in his. As such, I ordered:

(a)     For DC714, Mr Thong is given judgment for the sum of S$2,000. Costs is fixed at S$17,000 plus GST plus reasonable disbursements to be paid by Mr Thong to the defendant.

(b)     For DC715, Mr Chow’s claim is dismissed. Costs is fixed at S$18,000 plus GST plus reasonable disbursements to be paid by Mr Chow to the defendant.

[note: 1]Agreed Bundle of Documents (“AB”) 85.

[note: 2]Mr Thong Chee Leong’s AEIC in DC714 (“Mr Thong’s AEIC”) at [5]-[6]; Mr Terence Yong’s AEIC in both suits (“Mr Yong’s AEIC”) at [9]-[12].

[note: 3]Mr Thong’s AEIC at [7]; Mr Yong’s AEIC at [14]-[16].

[note: 4]AB129.

[note: 5]AB84.

[note: 6]Mr Thong’s AEIC at [9]-[13]; Mr Chow’s AEIC at [8].

[note: 7]Mr Yong’s AEIC at [30].

[note: 8]Mr Yong’s AEIC at [30].

[note: 9]Mr Yong’s AEIC at [17]; Mr Yong’s AEIC at [41].

[note: 10]Mr Yong’s AEIC at [17]-[18].

[note: 11]AB204.

[note: 12]AB64.

[note: 13]AB64.

[note: 14]DC714 Statement of Claim at [9]; DC715 Statement of Claim at [9]; AB341.

[note: 15]DC714 Statement of Claim at [12]; AB341.

[note: 16]DC714 Statement of Claim at [15]; DC715 Statement of Claim at [12]; AB341.

[note: 17]DC714 Statement of Claim at [18]; DC715 Statement of Claim at [15]; AB341.

[note: 18]DC714 Statement of Claim at [21]; DC715 Statement of Claim at [18]; AB342.

[note: 19]DC714 Statement of Claim at [27]; DC715 Statement of Claim at [24]; AB343.

[note: 20]Defendant's Closing Submissions at [88].

[note: 21]Defendant's Closing Submissions at [83]-[88].

[note: 22]Defendant's Closing Submissions at [227].

[note: 23]Mr Yong’s AEIC at p.19 at header “v. Posting of the Letter of Demand on Facebook was necessary and justified”.

[note: 24]Mr Yong’s AEIC at [81].

[note: 25]Defendant’s Opening Statement at [6(d)].

[note: 26]NE (22 April 2024) p. 103 ln 25-28.

[note: 27]NE (23 April 2024) p.57 ln 6-19.

[note: 28]NE (23 April 2024) p.34 ln 21-23.

[note: 29]Claimant’s Closing Submissions at [51].

[note: 30]Claimant’s Closing Submissions at [52].

[note: 31]Claimant’s Closing Submissions at [54].

[note: 32]AB72.

[note: 33]NE (23 April 2024) p.91 ln 26-27.

[note: 34]Mr Thong’s AEIC at [72]; Mr Chow’s AEIC at [41].

[note: 35]AB73.

[note: 36]Claimant’s Closing Submissions at [16].

[note: 37]Claimant’s Closing Submissions at [18].

[note: 38]Claimant’s Closing Submissions at [22].

[note: 39]Claimant’s Closing Submissions at [23].

[note: 40]DC714 Statement of Claim at [9]; DC715 Statement of Claim at [9]; AB341.

[note: 41]DC714 Statement of Claim at [15]; DC715 Statement of Claim at [12]; AB341.

[note: 42]DC714 Statement of Claim at [18]; DC715 Statement of Claim at [15]; AB341.

[note: 43]AB342.

[note: 44]AB341.

[note: 45]AB341.

[note: 46]Defendant’s Closing Submission at [38]-[39], [51], and [63].

[note: 47]Claimants’ Closing Submissions at [30].

[note: 48]Claimants’ Closing Submissions at [31].

[note: 49]NE (23 Apr 2024) p.20 ln 24-29; p.39 ln 1-5.

[note: 50]NE (22 Apr 2024) p.31 ln 6-10; p.42 ln 2-7.

[note: 51]NE (22 Apr 2024) p.82 ln 22 to p.83 ln 23.

[note: 52]NE (22 Apr 2024) p.84 ln 26-31.

[note: 53]NE (22 Apr 2024) p.84 ln 23 to p.85 ln 3.

[note: 54]NE (23 Apr 2024) p.50 ln 27 to p.51 ln 4.

[note: 55]NE (23 Apr 2024) p.25 ln 19 to p.26 ln 15.

[note: 56]AB96 and 106.

[note: 57]AB89.

[note: 58]NE (22 Apr 2024) p.41 ln 1 to p.42 ln 28.

[note: 59]NE (22 Apr 2024) p.42 ln 15.

[note: 60]NE (22 Apr 2024) p.42 ln 26-28.

[note: 61]NE (22 Apr 2024) p.23 ln 22 to p.24 ln 30; AB165-166.

[note: 62]NE (23 Apr 2024) p.17 ln 7-30.

[note: 63]DC714 Statement of Claim at [21]; DC715 Statement of Claim at [18]; AB342.

[note: 64]DC714 Statement of Claim at [27]; DC715 Statement of Claim at [24]; AB343.

[note: 65]AB342-343.

[note: 66]AB343.

[note: 67]AB342-343.

[note: 68]See the Opening Statement filed in DC714 on behalf of both Claimants on 16 April 2024 at [36].

[note: 69]NE (22 April 2024) p.43 ln 6 to p.44 ln 10.

[note: 70]NE (22 Apr 2024) p.45 ln 19-30; AB301.

[note: 71]NE (23 April 2024) p.53 ln 1-4.

[note: 72]NE (23 Apr 2024) p.9 ln 16 p.10 ln 22.

[note: 73]NE (24 Apr 2024) p.16 ln 9-32.

[note: 74]Mr Thong’s AEIC at [15]; Mr Chow’s AEIC at [5] and [8].

[note: 75]DC714 Statement of Claim at [12]; AB341.

[note: 76]DC714 Statement of Claim at [13].

[note: 77]AB340-341.

[note: 78]NE (24 Apr 2024) p. 67 ln 1 to p.68 ln 2; BA179-180.

[note: 79]AB153; NE (22 Apr 2024) p.29 ln 7-29.

[note: 80]Claimants’ Closing Submissions at [37]-[42] and [62].

[note: 81]Claimants’ Closing Submissions at [9].

[note: 82]Claimants’ Closing Submissions at [44].

[note: 83]Mr Yong’s AEIC at [81].

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Royal’s Engineering & Trading (S) Pte Ltd v Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd)
[2024] SGDC 275

Case Number:Suit No 1178 of 2024, Summons No 1229 of 2024
Decision Date:16 October 2024
Tribunal/Court:District Court
Coram: Chee Min Ping
Counsel Name(s): Ashok Kumar Rai (Cairnhill Law LLC) for the claimant; Dilip Kumar (Gavan Law Practice LLC) instructed by Mary Magdalene Pereira (Whitefield Law Corporation) for the defendant.
Parties: Royal's Engineering & Trading (S) Pte Ltd — Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd)

Civil Procedure – Summary judgment

Contract – Discharge – Frustration

Contract – Discharge – Subsequent agreement

16 October 2024

Deputy Registrar Chee Min Ping:

Introduction

1       The application by Royal’s Engineering & Trading (S) Pte Ltd (“Claimant”) for final judgment to be entered against Sultana Catering Pte Ltd (formerly known as Sultana New Chetty Vilas Restaurant & Catering Pte Ltd) (“Defendant”) was dismissed. In gist, the Claimant asserted that the Defendant had failed to pay rental amounting to the sum of S$131,335.00 payable under a tenancy agreement for the Claimant’s premises to be used by the Defendant to operate a canteen (“Tenancy Agreement”). In its response, the Defendant availed itself to a multitude of defences, including frustration of contract, force majeure and repudiatory breach by the Claimant associated with the slew of measures taken the Covid-19 pandemic which were put in place shortly after commencement of the tenancy period under the Tenancy Agreement in Singapore. The Defendant also asserted that the Tenancy Agreement had been invalidated due to the Defendant’s non-payment of stamp fees.

Issues and overview

2       This application raised two main issues. The first issue which arose is whether the Defendant had shown that it had a good arguable defence that the parties were not required to perform their primary obligations under the Tenancy Agreement despite the Defendant’s non-payment of the stamp duty for the lease throughout the Tenancy Period (“Condition Precedent Issue”). In the event that the Condition Precedent Issue was answered in the negative, the second issue was whether the Defendant had a good arguable defence that the Claimant had agreed to the termination of the Tenancy Agreement, and thus the Defendant was not liable to pay rental under the Tenancy Agreement as claimed (“Consent to Terminate Issue”).

3       In these grounds of decision, I will set out the factual background before explaining my reasons for deciding the Condition Precedent Issue in the affirmative and dismissing the Claimant’s application. For completeness, I will also explain the reasons for deciding the Consent to Terminate Issue in the affirmative, and that leave to defend should, in any event, be granted to the Defendant. These grounds of decision will also state my reasons for awarding costs to the Defendant at an attenuated quantum of $2,000, having regard to the manner in which the Defendant’s response to the Claimant’s application was conducted.

The Claim

4       The Statement of Claim sets out the following key facts. The Claimant is the owner of a canteen at 109 Tuas View Walk 1, Singapore (“Premises”). The Defendant is a food catering company. On 6 March 2020, the Claimant and the Defendant entered into the Tenancy Agreement for the lease of the Premises from the Claimant to the Defendant.

5       Under cl 1 of the Tenancy Agreement, the Defendant was to have possession of the Premises from 15 March 2020 until 14 March 2022 (“Tenancy Period”). The Defendant was required to pay rental at $8,500 per month, comprising $7,000 for the Premises, and the furniture and fittings at $1,500 per month. In addition, 7% Goods and Services Tax was to be paid by the Defendant on the monthly rental, which meant that the monthly payment due was $8,990. For present purposes, nothing turns on the component sums making up the monthly rental payments. Clause 4(b) of the Tenancy Agreement also provided that the Claimant was entitled to interest at 10% per annum calculated on a pro-rated daily basis on the amount of rental unpaid 7 days after rental falls due, calculated from the due date to the actual payment date.

The Claimant’s Demand for Payment

6       The Claimant asserts in its Statement of Claim, that between March 2020 and July 2021, the Defendant failed to pay the monthly rental of $8,990. The Claimant stated that the total indebtedness was $131,335.00 (being 16.5 months’ of rental less the security deposit of $17,000). The Claimant had treated the Tenancy as subsisting from March 2020 and July 2021.

7       The Claimant exhibited correspondence relating to the Tenancy Agreement between the Claimant and the Defendant’s “related company”, Four Seasons Food Central Pte Ltd (“Four Seasons”). In a letter from Four Seasons’ solicitors to the Claimant dated 3 December 2020 (“Four Seasons Letter”), “Four Seasons and/or the Defendant”[note: 1] stated:

With regards to the second tenancy signed on or about the 4th of March 2020, a total of $17,000 was paid as security deposit to you for the lease of this premises but our clients never commenced their business at the said premises due to the lock down and the consequential restrictions. Our clients were further instructed to move out their equipment shortly after the payment of the security deposit. There has been no refund of the said security deposit.

[emphasis added]

8       The Four Seasons Letter referenced two tenancy agreements, the second of which related to:[note: 2]

(2) Canteen Operator at 109 Tuas View Walk 1 Singapore under a subsidiary [Defendant].

The Claimant disputed the contents of the Four Seasons Letter, in particular the assertion that the Defendant had never commenced their business at the Premises, as being the “Defendant’s ploy to get its Security Deposit back”.[note: 3]

9       On 16 November 2022, the Claimant sent a letter of demand for unpaid rental from March 2020 to July 2021 to the Defendant. The Claimant’s solicitors subsequently sent a letter dated 5 March 2023, demanding that the Defendant makes payment for unpaid rental and utilities from March 2020 to July 2021 and late interest of 10% per annum.

The Stamp Duty reminder

10     The Claimant sent an email on 28 July 2021 to Four Seasons, reminding the Defendant of its obligation to pay stamp duty on the Tenancy Agreement to the Inland Revenue Authority of Singapore (“IRAS”) pursuant to cl 4(g) of the Tenancy Agreement.[note: 4] According to the Claimant, the Defendant ignored the Defendant’s request for the Defendant to pay the outstanding stamp duty and this resulted in the Claimant filing a report 15 November 2021 with the IRAS, showing the Defendant’s refusal to honour the Tenancy Agreement.[note: 5] The stamp duty was subsequently paid, as evidenced by the Certificate of Stamp Duty issued on 21 August 2023, indicating that a total amount of $1,782 had been paid comprising stamp duty of $816 and penalty of $966.

The Defence and Counterclaim

11     The Defendant pleaded in the Defence and Counterclaim, and stated in its affidavit in reply, that the Defendant never had the opportunity to use the Premises as a canteen as mandated by the Tenancy Agreement due to the Claimant’s conduct. The Tenancy Agreement was entered into on 6 March 2020, days before the Covid-19 Circuit Breaker was imposed on 7 April 2020, which was “effectively lifted only in 2021”.[note: 6] It was also asserted that the “canteen had to be closed due to mandatory orders issues [sic] by the authorities in Singapore”.[note: 7]

12     As I understand it, the Defendant’s position as stated in its affidavit is that due to the Covid-19 pandemic, there were safe management measures in place which affected the Claimant. These measures affected the Premises in two ways. Firstly, the authorities required the Premises to be used as foreign workers’ accommodation quarters, and this resulted in the Claimant informing the Defendant to stop business, so that the Claimant could use the Premises as workers’ quarters.[note: 8] Secondly, as a consequence of the authorities’ measures, it was not possible to operate the Premises as a canteen and also not possible for the Defendant to obtain licensing approval to operate a canteen.[note: 9]

13     The Defendant asserted in its affidavit in reply[note: 10] that:

… If the Claimant alleged that it was possible for the Defendant to operate the canteen, why did the Claimant prevent the Defendant from coming to the [Premises] except to collect the equipment belonging to the Defendant and why did the Claimant convert the canteen to a temporary holding area.

…

There was indeed an oral agreement between myself and Mr. Naga of the Claimant. We agreed to terminate the agreement and I was duly informed to remove my utensils which I did with the consent and knowledge of the Claimant. If indeed there was a breach of the Tenancy Agreement, why didn’t the Claimant stop me from taking back my utensils and equipment.

14     It appears that the Defendant was elaborating on matters stated in the Defence and Counterclaim at [7] – [8] which reads:

7 … the Claimants had locked up the premises claiming that the authorities had mandated it as such and used the entire premises including the premises which was leased to our clients. Subsequently, our clients had discovered that the entire premises was used to accommodate foreign workers pursuant to a regulatory order issued by the Ministry of Manpower in compliance with the Covid-19 measures. Given the lockdown and the use of the premises for the Claimant’s exclusive use, the tenancy agreement was deemed repudiated by the Claimants.

8… The Defendants were told to remove all their equipment from their premises which the Defendants complied. The Claimants orally informed the Defendants that the Tenancy Agreement was duly terminated thereafter. The Defendants are wondering why the Claimants are pursuing this present cause of action when they had informed the tenants that the Tenancy Agreement was terminated with no consequential costs from the Defendants.

15     The Defendant had exhibited photographs its affidavit in response, explaining that the Premises were “taken back” by the Claimant and “converted” for the Claimant’s usage as a workers’ dormitory.[note: 11]

16     In the Defence and Counterclaim[note: 12] and Further and Better Particulars on the Defence and Counterclaim (“Defendant’s FNBP”), [note: 13] the Defendant averred that the Defendant’s Mr Lingam had requested for early termination due to constraints imposed by the Ministry of Manpower as a result of challenges emanating from the Covid-19 pandemic. On 22 May 2020, Mr Naga had allegedly acknowledged the request for early termination as the Defendant could not resume business at the demised premises as the Claimant had converted the Premises into a temporary accommodation area for its own foreign workers. The Defendant was also apparently informed by the Claimant that the Tenancy Agreement was “pre-terminated” with no consequential costs for the Defendant by oral agreement (“Alleged Oral Agreement”).

Applicable principles

17     In Horizon Capital Fund v Ollech David [2023] SGHC 164 (“Horizon Capital Fund”) at [58], Goh Yihan JC observed that the principles applicable in a summary judgment application under O 9 r 17 of the ROC 2021 are the same as those applicable to applications under O 14 of the ROC 2014. In Horizon Capital at [60], the following principles were elucidated:

(a)     A claimant must first show that he has a prima facie case for his claims. If he fails to do so, then the application ought to be dismissed.

(b)     If the claimant shows that he has a prima facie case, the tactical burden shifts to the defendant who, in order to obtain permission to defend, must establish that there is a fair or reasonable probability that he has a real or bona fide defence.

(c)     The tactical burden which shifts to the defendant is the burden to provide further evidence to rebut an inference that would otherwise be drawn from the evidence provided by the claimant.

(d)     The court will not grant permission to defend if the defendant only provides a mere assertion, contained in an affidavit, of a given situation which forms the basis of his defence. If the defendant cannot satisfy this tactical burden, the claimant would be entitled to summary judgment.

Analysis

The Claimant has shown a prima facie case

18     The Claimant has presented a prima facie case that there was a Tenancy Agreement signed by the parties, and that rental had not been paid during the Tenancy Period, which included March 2020 to July 2021. Accordingly, it had a prima facie entitlement to claim for unpaid rental plus interest, accrued as a result of the Defendant’s failure to pay rental.

The Defendant has a good arguable defence

19     On the Condition Precedent Issue, the Defendant had demonstrated a good arguable defence that the primary obligations under the Tenancy Agreement were not required to be performed by the parties until the stamp duty had been paid. It was not disputed that the stamp fee was paid only after the Tenancy Period had expired. On the Consent to Terminate Issue, the Defendant had a good arguable case that the Claimant had by conduct and agreement, determined the Tenancy Agreement, and the Defendant was thereby not required to perform its obligation under the Tenancy Agreement to pay rental.

Clause 4(g) makes stamp duty payment by the Defendant a condition precedent to the performance of the Tenancy Agreement by the parties

20     I turn now to clause 4(g), which contains the words “Stamp Fee duty borne by Tenant”. Clause 4(g) reads as follows:

4.     Provided always and it is expressly agreed as follows:

…

(g)     Stamp Fee duty borne by Tenant. It is a must to have the stamp duty paid prior activating the legality of this contract.

[emphasis in bold in original]

21     Clause 4(g) is, in my view, an express provision that the stamp duty for the lease should be paid by the Defendant. The second sentence indicates that the parties, in providing for cl 4(g), intended that the stamp fee must first be paid before the other obligations under the Tenancy Agreement should be performed. It was not disputed that the Stamp Duty was only paid in 2023, after the Tenancy Period, which means that clause 4(g) was not fulfilled by the Tenant.

22     In Bonsel Development Pte Ltd v Tan Kong Kar and another [2000] 2 SLR(R) 967 at [8], the Court of Appeal clarified that in construing a clause stipulating that the contact is “subject to” the performance of an obligation by one party, it is essential to distinguish between a clause that constitutes a condition precedent to the formation of a contract, and a clause that constitutes a condition precedent to the precedent of a contract. In Bonsel Development, cl 10 of a sale and purchase agreement provided that the sale of property was “subject to” the sellers removing caveats lodged against the property, and “in the event that we are unable to do so by the competition date, the completion shall take place two (2) weeks from the date the caveats are removed”. The Court of Appeal held that the removal of caveats was a condition precedent to the performance of the contract, but not the formation of a contract. The delayed removal of caveats therefore delayed the performance of the contract but did not prevent a contract from being formed in the first place.

23     In contrast, in Lim Hwee Meng v Citadel Investment Pte Ltd [1998] 3 SLR(R) 101, the contract for sale of property contained cl 5 which provided:

The purchase herein by a company is subject to the company obtaining the approval of the Land Dealings Unit or other government approval for the purchase on or before completion.

24     The Court of Appeal held in Lim Hwee Meng at [40], that cl 5 was a condition precedent, not to the existence of a contract, but to the performance of the principal obligations under the contract. Specifically, if the Land Dealings Unit gave the requisite approval, then the principal obligations under the contract of sale and purchase would accrue. If the Land Dealings Unit did not give the requisite approval, the parties would be released from their obligations under the contract. Specifically, the Court of Appeal stated:

Pending the application to and the decision of the Land Dealings Unit, there remained in existence a contract which bound both parties and which neither party could disavow, notwithstanding that the principal obligations under the contract, namely, the sale and purchase of the property, would not accrue until the requisite approval was obtained…

25     Turning once more to Bonsel, it was clarified at [12] that while a binding contract had come into being, its performance is postponed until the occurrence of the specified event. And if the event requires action by one party, then that party must take all reasonable steps to achieving that end. Such a party cannot do nothing and claim that the condition has not materialised, thus exonerating himself from fulfilling the contractual obligation.

26     In view of the wording of cl 4(g), there is a good arguable case that the contract was intended by both the Claimant and the Defendant to not have “legal effect”, ie, that parties are not required to perform their primary obligations under the Tenancy Agreement due the Defendant’s non-payment of the stamp duty. In the present case, it was at least plausible to infer that the Claimant’s alleged conduct in operating a workers’ dormitory at the Premises and not demanding for rental until November 2022 was indicative that it had not regarded the Tenancy Agreement has imposing contractual obligations on the Defendant. I took the Claimant’s point, in the course of arguments, that the defendant had not specifically pleaded in its Defence and Counterclaim that the primary obligations under the Tenancy Agreement need not be fulfilled until the condition of stamp duty payment was met. To my mind, the lack of a specific pleading on this point is the matter that goes to costs, given the possibility of an amendment of pleadings.

Prima facie evidence of the Alleged Oral Agreement to terminate the Tenancy Agreement

27     In the event that my determination on the Condition Precedent Issue was in error, the Defendant should nevertheless be granted leave to defend as the Consent to Terminate Issue was answered in the affirmative. The Defendant has adduced prima facie evidence of an Alleged Oral Agreement in May 2020 to terminate the Tenancy Agreement, thereby discharging the Tenancy Agreement without liability on the Defendant’s part.

28     The Claimant disputed the existence of the Alleged Oral Agreement and argued that it was improbable that parties in an arm’s length commercial transaction would terminate their contractual relationship without leaving any documentary record. The Claimant’s argument relates to the credibility of the Defendant’s assertion that the Alleged Oral Agreement existed, which I accepted had significant force. However, it should be recalled that in an application for summary judgment, the analysis centres on whether the Defendant can adduce sufficient evidence to discharge its tactical burden to show that it has a good arguable defence. It is not necessary for the Defendant to prove its case on a balance of probabilities on affidavit evidence at this juncture.

29     The Defendant’s assertion that the Alleged Oral Agreement existed was not corroborated by either contemporaneous or subsequent documentary records. Details of the Alleged Oral Agreement appeared to be lacking in the Defence and Counterclaim. However, the Defendant had adduced some evidence of the Claimant’s subsequent conduct, which was explicable if one accepted that the Alleged Oral Agreement was in fact arrived at by the parties. Specifically, in my view, the Defendant pointed to two specific aspects of the Claimant’s subsequent conduct which was consistent with the Defendant’s assertion that the Claimant regarded the Tenancy Agreement as having been terminated:

(a)     First, the Defendant asserted that the Claimant had “taken back” the Premises, and also converted it to a foreign workers’ dormitory for its own use. To this end, the Defendant exhibited pictures in the Defendant’s affidavit to corroborate such an assertion.

(b)     Secondly, the Claimant had acted with conspicuous delay in demanding payments, with its written request to Four Seasons to pay the stamp duty in July 2021, and its delayed demand for unpaid rental as late as 16 November 2022.

30     The Claimant has raised disputes of fact, which do not detract from the fact that the Defendant has discharged its tactical burden to rebut the Claimant’s evidence and inferences that may be drawn therefrom. In my view, it would be more appropriate for these disputes to be ventilated at a trial:

(a)     The Claimant disputed that it had used the Premises to accommodate foreign workers pursuant to a regulatory order issued by the Ministry of Manpower in compliance with Covid-19 measures. The Claimant asserted that foreign workers were accommodated on the second level above the Premises which was on the ground floor. The Claimant had also not applied to convert the Premises into a sick bay or a workers’ dormitory.[note: 14]

(b)     Relatedly, the Claimant disputed the veracity of the Defendant’s photographic evidence in support of its assertion that the Premises were used as a workers’ dormitory. In the Claimant’s reply affidavit dated 2 August 2024 filed by Manickam Nagarajan, photographs were also exhibited depicting kitchen equipment, which the Claimant averred were located at the Premises. The Claimant disputed that the photographs exhibited in Sembulingam’s affidavit depicted the Premises and asserted that they were taken at another location.[note: 15]

31     I therefore arrived at the view, that the Claimant’s alleged conduct in converting the Premises to a workers’ dormitory for the Claimant’s use during the Tenancy Period, thereby effectively preventing the Defendant from performing its obligations under the Tenancy Agreement was consistent with the existence of the Oral Agreement to Terminate.

The alleged impossibility of performing the Tenancy Agreement

32     For completeness, I address what I understood to be the Defendant’s alternative arguments, that:

(a)     the Covid-19 pandemic is an “act of God” and a “force majeure event”,

(b)     the Covid-19 pandemic had “frustrated the performance of the Tenancy Agreement”; and

(c)     the Claimant had acted in repudiatory breach of the Tenancy Agreement by instructing the Defendant to move out of the premises and using the Premises as a dormitory for foreign workers.

33     I understood these assertions to be alternative arguments because implicit in these grounds relied upon is the acknowledgment that the Tenancy Agreement had been in subsistence and has not been terminated by agreement of the parties.

The definition of “force majeure” events was narrow

34     The Claimant has correctly submitted that force majeure events have been contractually defined in cl 4(c), and the Covid-19 pandemic would not constitute a force majeure event as it was still possible for the Defendant to perform its obligations under the Tenancy Agreement during the Tenancy Period. In any event, the Defendant had not once given notice of its intention to terminate the contract under cl 4(d) of the Tenancy Agreement.

35     Clause 4(c) defines events that affect the Premises, causing damage and destruction to it. These include destruction by fire, lightning, riot, explosion or other causes beyond the parties which cause the Premises to be unfit for occupation and use. The effects of a pandemic which did not lead to any destruction of the Premises would not constitute an event falling within the ambit of cl 4(c) which would entitle the Defendant to terminate the Tenancy Agreement. Even if there were difficulties in obtaining a licence to operate a canteen at the Premises (there was in fact, scant evidence of such difficulties), the inability of the Defendant to obtain a licence does not entitle the Defendant to terminate the Tenancy Agreement. In any event, as the Claimant has rightly pointed out, there was no evidence that any notice had been given by the Defendant under cl 4(d) to terminate the Tenancy Agreement. Thus, the Defendant would not have, in my view, succeeded in showing that it had a good arguable case that it did not have to perform its primary obligation under the Tenancy Agreement to pay rental on the basis that the Covid-19 pandemic constituted a “force majeure” event.

The Defendant’s alternative case was that of repudiation rather than frustration of contract

36     I turn now to the Defendant’s argument that the Tenancy Agreement had been frustrated by the Covid-19 pandemic and the “consequential curbs and restrictions”[note: 16]. The doctrine of frustration discharges parties from their agreement by operation of law when a supervening event that occurred after the formation of the contract rendered a contractual obligation radically or fundamentally different from that which had been agreed to (Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd [2014] 3 SLR 857). In Lachman’s Emporium Pte Ltd v Kang Tien Kuan (trading as Lookers Music Café, a sole proprietorship) [2022] SGHC 19 (“Lachman Emporium”) at [13], it was held that although the primary obligation to lease has not been rendered impossible by the Covid-19 pandemic or the control measures, there is a bona fide defence of the frustration of the shared purpose of using the Premises for a music lounge. The tenancy agreement required the defendant to use the leased premises as a “pub/bar/cabaret/night club/discotheque/karaoke lounge only…”. On the facts, leave was granted to defend, given that there was a triable factual issue of whether it was the shared purpose of parties that the leased premises was to be operated as a music lounge (which purpose could not be achieved due to Covid-19 control measures), as permission was obtained for the leased premises to be used as a restaurant. Leave to appeal was not granted in Lachman’s Emporium Pte Ltd v Kang Tien Kuan (trading as Lookers Music Café, a sole proprietorship) [2022] SGHC(A) 13.

37     In the present case, the Defendant’s substantiation of the alleged frustrating event bears some scrutiny. The Tenancy Agreement was alleged to have been “frustrated” by the Claimant’s deprivation of the benefit of the Premises for its own gain, rather than events that rendered the Defendant’s performance of its contractual obligations impossible:[note: 17]

The Defendant was frustrated was [sic] performing its contractual obligations due to the pandemic and its consequential restrictions and curbs. The Claimant had actually benefitted from using the Premises for its own use. The Claimant did not pay any compensation to the Defendant for the use of the Premises… there was unjust enrichment by the Claimant at the expense of the Defendant.

[emphasis added]

38     I had indicated that the alleged use of the Premises by the Claimant as a dormitory, thereby depriving the Defendant of the use of the Premises was corroborative that the Alleged Oral Agreement was more than a bare assertion. If the Alleged Oral Agreement did not exist, and indeed the Claimant had used the Premises as workers’ accommodation instead of allowing the Defendant to use it during the Tenancy Agreement, the Defendant’s recourse against the Claimant would have rested on the basis of a breach of the Tenancy Agreement, depriving the Defendant the benefit of the Premises.

39     Thus, a good arguable defence of frustration of the Tenancy Agreement was not raised on the facts presented by the Defendant. However, it would appear to me that there would be a triable issue of whether the Claimant had acted in breach of the Tenancy Agreement by using the Premises as a dormitory for foreign workers if the Alleged Oral Agreement did not exist.

Conclusion

40     In conclusion, I dismissed the summary judgment application as I found that there were triable issues for trial. Essentially, the issues were:

(a)     whether the Defendant was liable for rental payments, despite the non-satisfaction of the condition precedent of payment of stamp duties before the primary obligations under the Tenancy Agreement were to have legal effect and validly bind the parties; and

(b)     relatedly, whether the parties entered into the Alleged Oral Agreement to terminate the Tenancy Agreement between parties in May 2020 with no liability on the Defendant’s part.

41     In the event that it was determined at the trial that the Tenancy Agreement was in force and that the Defendant was liable to perform its obligation to pay rental during the Tenancy Period, the issue of whether the Claimant had acted in breach of the Tenancy Agreement by depriving the Defendant of use of the Premises by using the Premises as a dormitory for workers would arise for determination at the trial.

Decision on costs

42     The Defendant had conducted its response to the Claimant’s application in a confusing and at times contradictory manner. The Defendant has puzzlingly asserted the following in the affidavit filed on its behalf that the Tenancy Agreement “was not valid till 30th of March 2020, not as 15th of March 2020 as claimed by the Claimant”, as the security deposit of $17,000 was paid only on 30 March 2020.[note: 18] This was in stark contrast to its position in the very same affidavit, that the Defendant’s non-compliance with the Tenancy Agreement rendered it “null and void”:

13    The Defendant did not pay its rental for the month of March 2020, the first month of the tenancy period. This effectively meant the Tenancy Agreement was null and void as the rental was never paid from the onset of the tenancy period.

…

15    The Defendant did not pay its Stamp Duty. It only paid its Stamp Duty in late 2023… The failure of the Defendant to pay the said Stamp Duty on a timely basis effectively rendered the Tenancy Agreement null and void.

43     The assertion that the Tenancy Agreement was null and void contradicted the Defendant’s assertion that the Alleged Oral Agreement existed, as it would not be possible to terminate the Tenancy Agreement if it was null and void to begin with. Similarly, there could be no discharge by force majeure or frustration of a contract, if there was no valid Tenancy Agreement to begin with. Further, as I had also highlighted above at [34] – [39], the Defendant’s assertion that the Tenancy Agreement was determined by Covid-19 as a force majeure event or an event frustrating the purpose of the Tenancy Agreement found no basis, even if the Defendant’s asserted facts were assumed to be true.

44     Notwithstanding that costs should follow the event, as the Defendant’s conduct of its response to the application had necessitated lengthy arguments and preparation on the Claimant’s part to meet the multiple areas of arguments traversed, I attenuated the award of costs. Costs to the Defendant was ordered to be paid by the Plaintiff fixed at $2,000 inclusive of reasonable disbursements.

[note: 1]Affidavit filed by Tham Kwok Cheng dated 5 July 2024 (“Tham’s affidavit”) at [16].

[note: 2]Tham’s affidavit at p 40.

[note: 3]Tham’s affidavit at [17].

[note: 4]Tham’s affidavit at p 43.

[note: 5]Tham’s affidavit at [19].

[note: 6]Defence and Counterclaim at [6].

[note: 7]Defence and Counterclaim at [9].

[note: 8]Affidavit filed by Sathappan Sembulingam dated 18 July 2024 (“Sembulingam’s affidavit”) at [20] – [22].

[note: 9]Sembulingam’s affidavit at [14].

[note: 10]Sembulingam’s affidavit at [30] and [33].

[note: 11]Sembulingam’s affidavit at [26].

[note: 12]Defence and Counterclaim at [7].

[note: 13]Tham’s affidavit at p 66, see [4].

[note: 14]Tham’s affidavit at [33].

[note: 15]Affidavit of Manickam Nagarajan dated 2 August 2024 (“Manickam’s affidavit”) at [20] – [21] and Tab 4.

[note: 16]Defendant’s Skeletal Submissions at [9] and [11].

[note: 17]Defendant’s Skeletal Submissions at [11]

[note: 18]Sembulingam’s affidavit at [11].

"},{"tags":["Criminal Law – Conspiracy – Cheating of financial institution – Use of forged documents of public institutions – Accused’s presence & co-accused’s participation – Admissibility of statements – Promise – Inducement – Refreshing memory – Similar fact evidence – Prima facie case at close of prosecution – Credibility of witness – Inconsistency in a witness’s evidence – Acceptance and rejection of parts of a witness’s evidence – Retracted statements implicating accused and co-accused – Sentencing considerations"],"date":"2024-10-03","court":"District Court","case-number":"DAC-933283-2019 & others, MA-9162-2024-01, MA-9163-2024-01 & MA-9164-2024-01, MA-9163-2024-02 & MA-9164-2024-02","title":"Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others","citation":"[2024] SGDC 243","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32276-SSP.xml","counsel":["DPPs Suhas Malhotra, Joseph Gwee & Matthew Choo (for the prosecution)","Wee Pan Lee, Kyle Leslie Sim Siang Chun (before 22 Aug 2022) & Low Chang Yong (from 22 Aug 2022) (M/s Wee, Tay & Lim LLP) for Bijabahadur Rai S/O Shree Kantrai","Patrick Fernandez & Md Arshad (Fernandez LLC) for Kok Chiew Leong, Mohamed Haron Bin Hassan and Juma'at Bin Johari","Tan Cheng Kiong (CK Tan LaCorporation)(discharged on 18 Jan 2022) for Sufandi Bin Ahmad (Accused in Person from 18 Jan 2022)","Manickavasagam s/o R M Karuppiah Pillai (Manicka & Co) for Sufandi Bin Ahmad (B6)(Engaged on 14 Nov 2022 and discharged on 12 June 2023) Sufandi Bin Ahmad (Accused in Person from 12 June 2023)"],"timestamp":"2024-10-22T16:00:00Z[GMT]","coram":"Soh Tze Bian","html":"Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others

Public Prosecutor v Bijabahadur Rai s/o Shree Kantrai and others
[2024] SGDC 243

Case Number:DAC-933283-2019 & others, MA-9162-2024-01, MA-9163-2024-01 & MA-9164-2024-01, MA-9163-2024-02 & MA-9164-2024-02
Decision Date:03 October 2024
Tribunal/Court:District Court
Coram: Soh Tze Bian
Counsel Name(s): DPPs Suhas Malhotra, Joseph Gwee & Matthew Choo (for the prosecution); Wee Pan Lee, Kyle Leslie Sim Siang Chun (before 22 Aug 2022) & Low Chang Yong (from 22 Aug 2022) (M/s Wee, Tay & Lim LLP) for Bijabahadur Rai S/O Shree Kantrai; Patrick Fernandez & Md Arshad (Fernandez LLC) for Kok Chiew Leong, Mohamed Haron Bin Hassan and Juma'at Bin Johari; Tan Cheng Kiong (CK Tan LaCorporation)(discharged on 18 Jan 2022) for Sufandi Bin Ahmad (Accused in Person from 18 Jan 2022); Manickavasagam s/o R M Karuppiah Pillai (Manicka & Co) for Sufandi Bin Ahmad (B6)(Engaged on 14 Nov 2022 and discharged on 12 June 2023) Sufandi Bin Ahmad (Accused in Person from 12 June 2023)
Parties: Public Prosecutor — Bijabahadur Rai s/o Shree Kantrai — Kok Chiew Leong — Mohamed Haron bin Hassan — Sufandi bin Ahmad — Juma'at bin Johari

Criminal Law – Conspiracy – Cheating of financial institution – Use of forged documents of public institutions – Accused’s presence & co-accused’s participation – Admissibility of statements – Promise – Inducement – Refreshing memory – Similar fact evidence – Prima facie case at close of prosecution – Credibility of witness – Inconsistency in a witness’s evidence – Acceptance and rejection of parts of a witness’s evidence – Retracted statements implicating accused and co-accused – Sentencing considerations

3 October 2024

District Judge Soh Tze Bian:

(A)   INTRODUCTION & CHARGES

1       Each of the 5 accused persons (“APs”), Bijabahadur Rai s/o Shree Kantrai ("BJ"); Kok Chiew Leong ("Kok"); Mohamed Haron bin Hassan ("Haron"); Sufandi bin Ahmad ("Sufandi"); and Juma'at bin Johari ("Juma'at") jointly claimed trial and all were convicted of their respective charges and sentenced after 56 days of hearing. BJ, Kok and Sufandi had filed appeals against their respective convictions and sentences for their cheating and forged documents offences and are each on bail pending their appeals. The Prosecution had filed its appeal against the sentences I have imposed on BJ and Sufandi. As Haron and Juma'at did not file any appeal against their respective convictions and sentences for their fraudulent deed offences and are currently serving their sentence of 10 weeks’ imprisonment each, these Grounds of Decision will deal only with the appeals of BJ, Kok and Sufandi against their respective convictions and sentences as well as the Prosecution’s appeals against the sentences imposed on BJ and Sufandi.

2       BJ, Kok and Sufandi had jointly claimed trial to their respective charges for 35 Saraca Terrace (“Saraca Terrace”) and 1 Woodgrove Walk ("Woodgrove Walk") as follows:

(I)     Saraca Terrace

(a)     Bijabahadur Rai s/o Shree Kantrai (BJ)

(i)     DAC-933252-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Sufandi Bin Ahmad and Kok Chiew Leong to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 31 March 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Mohammad Naseeruddin BinAllamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 to the bank, which documents you knew were false, to deceive the bank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109[note: 1] of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933256-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109[note: 2] of the Penal Code (Chapter 224, 2008 Revised Edition).”

(b)     Kok Chiew Leong (Kok)

(i)     DAC-933266-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Bijabahadur Rai S/O Shree Kantrai and Sufandi Bin Ahmad to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 31 March 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Mohammad Naseeruddin Bin Allamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 to the bank, to deceive the bank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933269-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933270-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 18 March 2014 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(c)     Sufandi Bin Ahmad (Sufandi)

(i)     DAC-933283-2019

“…that you, sometime in 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai and Kok Chiew Leong to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“Maybank”), and in pursuance of the conspiracy and in order to the doing of that thing, on or about 31 March 2014, you did submit a false Notice of Assessment and a false CPF Board Statement (the “false documents”) in the name of Mohammad Naseeruddin bin Allamdin (“Naseeruddin”), the named buyer of a property located at 35 Saraca Terrace Singapore 805486 (the “property”) to Maybank, which documents you knew were false, to deceive Maybank into believing that Naseeruddin had an annual income of $310,300 in 2013, a fact which you knew to be false, and by such manner of deception, you dishonestly induced Maybank into approving and delivering a mortgage loan of $2,320,000 to Naseeruddin in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Cap 224, 2008 Rev Ed).”

(ii)   DAC-933286-2019

“…you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 12 June 2013 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933287-2019

“…that you, sometime or before 31 March 2014, in Singapore, did abet by engaging in a conspiracy with Kok Chiew Leong and Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF statement”) dated 18 March 2014 under the name of Mohammad Naseeruddin Bin Allamdin (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 31 March 2014, to wit, the said CPF statement was submitted to the Malayan Banking Berhad, Singapore Branch on 31 March 2014 as part of an application by the borrower to borrow a sum of $2,320,000 to fund the purchase of the property located at 35 Saraca Terrace Singapore 805486 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109of the Penal Code (Chapter 224, 2008 Revised Edition).”

(II)   Woodgrove Walk

(a)     Bijabahadur Rai s/o Shree Kantrai (BJ)

(i)     DAC-933254-2019

“…that you, sometime in 2014, in Singapore, did engage in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“the bank”), and in pursuance of the conspiracy and in order to the doing of that thing, an act took place on or about 6 August 2014, in Singapore, to wit, you caused the submission of false Notice of Assessment and false CPF Board Statement (“the false documents”) in the name of Iswandi Bin Yahya (“Iswandi”), the named buyer of a property located at 1 Woodgrove Walk Singapore 738144 to the bank, which documents you knew were false, to deceive the bank into believing that Iswandi had an annual income of $471,600 in 2014, facts which you knew to be false, and by such manner of deception, you dishonestly induced the bank into approving and delivering a mortgage loan of $2,840,000 to Iswandi in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(ii)   DAC-933261-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 23 May 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933262-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 5 August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iv)   DAC-933263-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Sufandi Bin Ahmad to do a certain thing, namely, to dishonestly use as genuine DBS Treasures POSB Passbook Savings Account (no. xxxx) statements for June 2014, July 2014 and August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be forged documents, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said bank statements were submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(b)     Sufandi Bin Ahmad (Sufandi)

(i)     DAC-933284-2019

“…that you, sometime in 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to cheat the Malayan Banking Berhad, Singapore Branch (“Maybank”), and in pursuance of the conspiracy and in order to the doing of that thing, on or about 6 August 2014, you did submit a false Notice of Assessment and a false CPF Board Statement (the “false documents”) in the name of Iswandi Bin Yahya (“Iswandi”), the named buyer of a property located at 1 Woodgrove Walk Singapore 738144 (the “property”) to Maybank, which documents you knew were false, to deceive Maybank into believing that Iswandi had an annual income of $471,600 in 2014, a fact which you knew to be false, and by such manner of deception, you dishonestly induced Maybank into approving and delivering a mortgage loan of $2,840,000 to Iswandi in order to fund the purchase of the property, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 read with Section 109 of the Penal Code (Cap 224, 2008 Rev Ed).”

(ii)   DAC-933288-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine an Inland Revenue Authority of Singapore Notice of Assessment dated 23 May 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said Notice of Assessment was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iii)   DAC-933289-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine a Central Provident Fund Board Contribution History Statement (“CPF Statement”) dated 5 August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be a forged document, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said CPF Statement was submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(iv)   DAC-933290-2019

“…that you, sometime or before 6 August 2014, in Singapore, did abet by engaging in a conspiracy with Bijabahadur Rai S/O Shree Kantrai to do a certain thing, namely, to dishonestly use as genuine DBS Treasures POSB Passbook Savings Account (no. xxxx) statements for June 2014, July 2014 and August 2014 under the name of Iswandi Bin Yahya (“the borrower”), which you knew to be forged documents, and in pursuance of that conspiracy and in order to the doing of that thing, an act took place on 6 August 2014, to wit, the said bank statements were submitted to the Malayan Banking Berhad, Singapore Branch on 6 August 2014 as part of an application by the borrower to borrow a sum of $2,840,000 to fund the purchase of the property located at 1 Woodgrove Walk 738144 in the name of the borrower, and you have thereby committed an offence punishable under section 471 read with section 465 read with section 109 of the Penal Code (Chapter 224, 2008 Revised Edition).”

(B)   AGREED STATEMENT OF FACTS

3       Prior to the commencement of the trial, all parties had signed an agreed statement of facts (ASOF) with a list of exhibits admitted by consent[note: 3]. Having been advised by Counsel, subject to the qualifications in paragraphs 13 and 28 of the, ASOF, Sufandi accepts the facts stated in the ASOF and that he would be bound by the facts stated in this ASOF, even after his Counsel is discharged; and he will require leave of Court for any admission made in this ASOF to be withdrawn[note: 4].

(C)   PROSECUTION’S CASE

4       The Prosecution’s opening statement dated 18 January 2022 set out its case[note: 5]. To prove its case against the AP, the Prosecution tendered voluminous bundles of 92 exhibits and called the following 25 witnesses:

S/N

Witness

Role

Court Marking

35 Saraca Terrace

1.

Yeo Ming Joo

Vendor of 35 Saraca Terrace.

PW1

2.

Lim You En

Vendor of 35 Saraca Terrace.

PW2

3.

Koh Jin Min Adrian

Vendor’s property agent.

PW3

4.

Mohammad Naseeruddin bin Allamdin

Purchaser of 35 Sarada Terrace.

PW4

5.

Fauziah Binte Mohamed Hussain @ Angela Veronica

Secretary at the law firm acting for the purchaser.

PW5

6.

Tan Poh Geok

IRAS Officer: To give evidence on the authenticity of Notices of Assessment submitted to Maybank.

PW8

7.

Go Theng Theng

IRAS Officer. To give evidence on the Payment Records for the Stamp Duty of 35 Saraca Terrace and 1 Woodgrove Walk.

PW7

8.

Wong Jing Ling Jerlyn

Maybank sales officer.

PW9

9.

Leow Kwee Far Dorothy

Maybank credit manager.

PW10

10.

Tay Han Liang

Complainant for 35 Saraca Terrace and 1 Woodgrove Walk. Mortgage manager of Maybank.

PW12

1 Woodgrove Walk

11.

Ammar Salim bin Ariff

Maybank sales officer.

PW13

12.

Iswandi bin Yahya

Purchaser of 1 Woodgrove Walk.

PW16

13.

Shirley Goh

Secretary at the law firm acting for the purchaser.

PW19

14.

Kanthosamy Rajendran

Vendor’s solicitor.

PW14

15.

Gobikrishna s/o Chinaya

Son of Govindasamy Chinaya.

PW22

16.

Tay Chye Huat

Director of the company to which a portion of the sales proceeds were paid.

PW18

17.

Mohamad Pauzi Ali

To give evidence on the authenticity of the bank statements submitted to Maybank.

PW11

18.

Mohamad Hamzi bin Rabu

Vendor of 1 Woodgrove Walk.

Deceased

19.

Rohana Binte Januri

Vendor of 1 Woodgrove Walk.

PW6

20.

Prasanna D/O T.V Prabhakaran

To give evidence on the meeting with Hamzi, Rohana, and Haron concerning 1 Woodgrove Walk

PW15

21.

Clarissa Bay

To give evidence on the loss suffered by Maybank

PW17

Law enforcement officers

22.

Commercial Affairs Officer Hong Jinglin

Investigation officer.

PW20

23.

Commercial Affairs Officer Chew Min

Investigation officer.

PW21

24.

Commercial Affairs Officer Wu Qiuping

Investigation officer.

PW23

Other Witnesses

25.

Zulkarnain Lim Bin Zulkefli

PW24



(I)    ANCILLARY HEARINGS

(D)   ISSUES ARISING AT ANCILLARY HEARINGS

5       The issues arising at 5 ancillary hearings for my determination were as follows:

(I) Whether a co-accused can participate in an accused’s ancillary hearing?

(a)     Having carefully considered the submissions and case authorities of the parties on this issue, I accepted the Defence submissions that each of the co-accused has the right to object to the admissibility of Sufandi’s CAD statements and they are all entitled to participate in the ancillary hearing.

(b)     I took into account the provisions of ss 279(1) and (3) of the Criminal Procedure Code (“CPC”), which allow any party to object to the admissibility of statements or evidence. The absence of a distinction between "statement" and "evidence" in the CPC supports the argument that co-accused should be allowed to participate in ancillary hearings regarding the admissibility of any evidence, including statements.

(c)     In my view, the Prosecution’s reliance on the cases of Jasbir Singh v PP [1994] 1 SLR(R) 782 (“Jasbir Singh”) and Panya Martmontree v PP [1995] 2 SLR(R) 806 (“Panya Martmontree”), failed to take into account that this was the “previous practice” (as pointed out in the current 2020 edition of Evidence and the Litigation Process, wherein Jeffrey Pinsler SC described the position taken in Jasbir Singh and Panya Martmontree as “the previous practice”), particularly when the present s 279(1) CPC was enacted (after Jasbir Singh and Panya Mortmontree were decided) wherein s 279(1) CPC provides that any party may object to the admissibility of any statement made by that party or any other evidence which the other party to the case intends to tender at any stage of the trial.

(d)     The statements made by the Minister for Law during the 2nd reading of the CPC 2010 bill indicated that ancillary hearings are necessary when any party objects to the admissibility of evidence. Co-accused individuals are entitled to cross-examine witnesses during the ancillary hearing, under ss 279(1) and 279(3) CPC. Evidence presented during the ancillary hearing is admissible in the main trial without the need to recall witnesses, as specified in s 279(5) CPC.

(e)     The court’s power under s 279(6) CPC to recall witnesses from the ancillary hearing during the trial, if necessary, for further examination or cross-examination by either party, is to be exercised only in the interests of justice. As contemplated under ss 279(7) to 279(9) CPC, the court can assess the value and relevance of any evidence arising from cross-examination during the ancillary hearing, with the option to reverse its decision based on further submissions from the parties before the conclusion of the trial.

(f)     For the above reasons, I ruled that the co-APs have the right to participate in ancillary hearings concerning the admissibility of the CAD statements of their co-accused, Sufandi, so as to ensure procedural fairness and compliance with relevant legal provisions.

(II) Whether an accused person needs to be present in court while a co-accused person’s evidence is being taken in an ancillary hearing ?

(a)     S 233 CPC mandates that the evidence of a witness during a trial must be taken in the presence of the accused, unless the accused's personal attendance is dispensed with.

(b)     As one of the co-accused, Kok cannot be present in court due to been tested positive for COVID-19 and needed to self-isolate, I found it inappropriate to dispense with Kok's personal attendance, especially considering that his counsel requires his presence to take instructions. Since Kok is allowed to participate in Sufandi's ancillary hearing on his CAD sattements, I ordered that Sufandi's ancillary hearing cannot proceed without Kok's presence.

(c)     In compliance with the COVID-19 regulations of the Ministry of Health, which prohibited Kok from attending court due to his positive test result and self-isolation requirements, I ordered Sufandi's ancillary hearing to be adjourned. The adjournment is contingent upon Kok's COVID-19 test result being negative or, if positive, upon his ability to attend court via video-conferencing. Alternatively, the adjournment period is set for 7 days from the date Kok first tested positive for COVID-19.

(d)     Hence, I ruled that Kok's personal attendance cannot be dispensed with for Sufandi's ancillary hearing, and therefore, the hearing is adjourned until Kok's COVID-19 situation allows his participation either physically or via video-conferencing.

(III) Whether there is any alleged promise and/or inducement made by CAD officer Hong Jinglin (PW20) and/or CAD officer Chew Min (PW21) to Sufandi in relation to his requests for overseas travels so as to get his cooperation to give positive statements in his 5 CAD statements implicating himself and his co-accused thereby rendering the aforesaid CAD statements inadmissible as evidence?

(a)     An ancillary hearing (AH) was conducted by this Court to determine the admissibility of Sufandi’s 5 statements as set out below :

(i)       Statement dated 8 June 2016 marked as P65i.

(ii)       Statement dated 29 July 2016 marked as P66i.

(iii)       Statement dated 2 December 2016 marked as P67i.

(iv)       Statement dated 11 April 2017 marked as P78i.

(v)       Statement dated 24 April 2019 marked as P79i.

(b)     The provisions under ss 258(1) to 258(3) CPC establish the rules for the admissibility of statements made by a person charged with an offence, as well as the limitations on their admissibility. Any statement made by an accused, whether oral or written, is generally admissible as evidence at his trial. This applies to statements made at any time, whether before or after the person was charged with an offence. It also includes statements made during or outside of an investigation by any law enforcement agency. If the accused chooses to testify in court, any previous statements made by him can be used by the prosecution for cross-examination or to challenge the accused’s credibility. However, statements made to a police officer below the rank of sergeant are not admissible in court. Further, the court is required to reject or disallow the use of a statement if it was made by the accused due to inducement, threat, or promise from a person in authority which must be of a nature that would cause the accused to reasonably suppose that he would gain some advantage or avoid some evil of a temporal nature in reference to the proceedings.

(c)     A two-staged test has been laid down by the Court of Appeal[note: 6] to determine whether a statement was given voluntarily: (i) whether, objectively, any inducement, threat or promise was made; and (ii) whether, subjectively, the inducement, threat or promise operated on the mind of the particular accused, such that the accused reasonably supposed that he would gain some advantage or avoid some evil of a temporal nature in relation to the proceedings against him.

(d)     The Court of Appeal[note: 7] had considered the application of s 258 CPC and stated as follows:

(i)       Any statement provided by an accused is initially considered admissible, but this is contingent upon the requirement of voluntariness.

(ii)       In cases where the voluntariness of a statement is challenged and an AH is convened, the burden of proof rests on the Prosecution to demonstrate beyond a reasonable doubt that the statement was made voluntarily.

(iii)       If a statement is deemed involuntary according to the definition provided in s 258(3) of the CPC, the court must reject its admission.

(iv)       The court employs a two-stage inquiry to ascertain the voluntariness of a statement. During the first stage, the court objectively evaluates whether any threat, inducement, or promise was given. This evaluation also includes an examination of potential gains or losses, as well as the level of assurance provided. In the second stage, the court considers the subjective impact of the threat, inducement, or promise on the accused's state of mind. This assessment encompasses all relevant circumstances, including the accused’s personality and prior experiences.

(e)     Based on the evidence[note: 8] presented at the AH and submissions from the parties, I found that Sufandi's allegations did not satisfy the 1st stage of the test for determining the voluntariness of a statement. The Prosecution has established beyond a reasonable doubt that no promises were made by CAO Hong or CAO Chew to Sufandi. Both CAO Hong and CAO Chew clearly denied making any promises regarding Sufandi's travel or avoiding charges. Objective documentary evidence supported their testimonies, indicating that no formal travel application was ever submitted to CAO Hong. The travel application was only made to CAO Chew, who was handling such matters during CAO Hong's maternity leave. The application to CAO Chew was promptly approved by the CAD after receiving all necessary details, including the purpose of the trip, itinerary, and bailor information. The absence of any promises or inducements, as confirmed through both the testimonies and objective evidence, means that the first stage of the test is satisfied. My reasons are as follows.

(f)     Based on CAO Hong's testimony and the CAD Bail Memo prepared by CAO Chew, I found that CAO Hong did not have unilateral authority to approve overseas travel requests as decisions on such requests required clearance from her superiors, indicating a hierarchical process for approval. The CAD Bail Memo prepared by CAO Chew outlined a process involving two levels of approval within CAD for overseas travel requests. This hierarchical approval process reinforces CAO Hong's limited discretion in granting travel permission. Any promise made by CAO Hong regarding travel permission could have been ineffective if it was ultimately subject to approval from higher authorities. If CAO Hong's superiors denied the request, the promise would have been void. Similarly, any threat to withhold travel permission might have been ineffectual if her superiors had the authority to override her decision and grant permission despite the threat. In my view, CAO Hong's limited authority suggests that any promises or threats related to travel made by her may not have been significant in influencing Sufandi’s decision to make a statement and her lack of unilateral authority diminishes the impact of any alleged promises or threats made to Sufandi, as decisions were ultimately subject to higher-level approval within CAD.

(g)     Based on the evidence presented at the AH, Sufandi’s November 2015 travel request contained a typographical error concerning the travel date which he did not follow up with CAO Hong to correct it. Sufandi’s December 2015 travel request was vague and lacked essential details such as the purpose of the trip, itinerary, accommodation, transportation plans, and particulars of a suitable bailor which made it challenging for CAO Hong to process the request effectively. Sufandi did not take steps to follow up on his travel requests or provide the necessary information to CAO Hong. CAO Hong, who was on maternity leave during this period, was not involved in the decision-making regarding Sufandi's travel. In my view, the evidence suggests that Sufandi’s failure to provide essential details and follow up on travel requests contributed to their rejection which was not influenced by any promises or threats from CAO Hong. There is no evidence of any nefarious intent on the part of CAO Hong. The lack of detail and follow-up by Sufandi regarding his travel requests raises questions about his level of commitment and seriousness. Further, Sufandi only alleged that a promise to allow travel in exchange for favourable statements arose on 8 June 2016, which is after the dates of the travel requests in question.

(h)     CAO Chew, covering for CAO Hong during her maternity leave, independently assessed and approved Sufandi’s travel request in April 2017. This demonstrates that CAO Chew had the authority and autonomy to make decisions regarding travel permissions without direct involvement from CAO Hong. There was a notable disagreement between CAO Hong and CAO Chew regarding the terms of Sufandi’s travel. CAO Hong disagreed with CAO Chew's recommendation on the bail quantum for Sufandi. This indicates that the decision-making process regarding Sufandi's travel was not uniform and that CAO Hong did not control or dictate the outcome. If CAO Hong had been using travel permissions as leverage to obtain positive statements from Sufandi, it would be expected that she would have been more involved and given specific instructions to CAO Chew. The fact that CAO Chew independently managed the travel request and that CAO Hong's disagreement on the bail terms suggests that travel permissions were not being used manipulatively. In my view, the evidence supports the conclusion that CAO Hong did not use travel permissions as leverage to obtain positive statements from Sufandi. The independent handling of the travel request by CAO Chew and the lack of alignment between CAO Hong and CAO Chew in their decisions regarding Sufandi’s travel suggest that the decision-making process was conducted fairly and without undue influence.

(i)     CAO Chew’s handling of Sufandi’s travel application in April 2017 was professional and reasonable. CAO Chew processed and approved the application independently, which aligns with CAO Hong's testimony about CAO Chew’s autonomy in managing travel requests. There were no promises of travel made by either CAO Hong or CAO Chew to Sufandi. Sufandi's previous failure to travel was attributed to incomplete or improper applications rather than any manipulation or bargaining by CAO Hong or CAO Chew. By April 2017, when Sufandi made a proper application and provided details of his bailor, it was the first complete application received. CAO Chew’s approval was based on the legitimacy of Sufandi’s reasons for travel, including verifiable details of the soccer tournament in Kuala Lumpur. CAO Chew assessed Sufandi’s flight risk as low, taking into account that he was travelling with his family and no external factors suggested a risk of absconding. In my view, the evidence supports that CAO Chew's approval of Sufandi’s travel request was based on a professional assessment and not influenced by promises or manipulation. The handling of Sufandi’s travel application was consistent with standard procedures and did not involve leveraging travel permissions for obtaining favourable statements. The conduct of CAO Hong and CAO Chew demonstrates that travel permissions were managed appropriately and fairly.

(j)     Both CAO Hong and CAO Chew testified with candour and fairness. Their demeanour and the way they answered questions reflected a commitment to honesty and transparency. The bail memo and other documentary evidence supported their testimonies. The documentation provided clear reasons for their decisions and aligned with their oral accounts. The Prosecution’s assessment that CAO Hong and CAO Chew were fair-minded civil servants is supported by the evidence as there was no indication that promises regarding travel were made to Sufandi, as per their respective testimonies and the supporting documents. Hence, I found that CAO Hong and CAO Chew have acted within their professional duties without any undue influence or promises related to Sufandi's travel requests. Their conduct and the documentary evidence support the integrity of their decisions and their credibility in the matter.

(k)     Sufandi’s allegation regarding promises made to him appears to have evolved over time. Initially, it was claimed that CAO Hong promised to recommend the approval of Sufandi's travel request in exchange for a positive statement. This initial claim was later expanded to include promises of not being charged or going "scot-free" if Sufandi cooperated as a prosecution witness. This shift came after the Prosecution introduced a bail memo from CAO Chew. During cross-examination, CAO Chew was implicated in the promise, despite Sufandi's previous evidence that CAO Chew was not involved and did not make any promises. Sufandi's counsel had earlier exonerated CAO Chew from making any promises. Sufandi admitted that he did not instruct his counsel regarding the alleged promise and did not verify with his counsel about this issue during the initial testimony of CAO Hong before her recall. The shifting nature of the allegation, along with inconsistencies in Sufandi's statements and the actions of his counsel, suggests that the allegation regarding promises made to Sufandi evolved as the case progressed. The lack of clear and consistent evidence to support the allegation and the evolving nature of the claims indicate that the allegation may have been introduced as an afterthought or in response to new evidence, rather than being based on a solid, initial claim. In light of these observations, I found that the credibility of Sufandi’s allegation is called into question, and its introduction and modification over time undermine its reliability.

(l)     Sufandi initially denied that CAO Chew made any promises but later altered his claim to state that CAO Chew promised not to charge him if he cooperated, following the appearance of the phrase "prosecution witness" in the bail memo. During EIC, Sufandi expressed ignorance about the wrongfulness of CAD’s methods, but his stance faltered during XE as he made increasingly implausible claims which included a lack of awareness about the implications of a false confession and inconsistencies about his expectations of being charged and receiving a lesser sentence. Sufandi could not provide a credible explanation for not instructing his counsel about the alleged promise involving CAO Chew. His inability to address this gap in his defence suggested that the allegation was potentially fabricated or altered in response to new evidence. Sufandi's explanations, particularly his belief that being a prosecution witness was not wrong and his delayed introduction of the promise allegation, were implausible. The inconsistency between his initial denial and later admission, coupled with his contradictory statements about expectations and charges, further undermined his credibility. In my view, the significant inconsistencies in Sufandi's accounts, coupled with his contradictory and implausible explanations, cast substantial doubt on the credibility of his claims regarding promises made by CAD officials. His evolving story and lack of coherent reasoning regarding his actions and instructions to counsel suggest that the allegations were not substantiated and may have been developed or modified in response to new information.

(m)     Sufandi's reliance on the CAD's bail memo is unfounded, particularly concerning his interpretation of the phrases "prosecution witness" and "cooperation." CAO Chew, as CAO Hong's covering officer, had limited involvement in Sufandi's case and lacked the authority to make prosecutorial decisions. Furthermore, there appears to be no reason for CAO Chew to have made any promises regarding non-prosecution. CAO Chew clarified that the term "cooperation" in the bail memo referred to Sufandi's willingness to answer questions openly during the statement recorded on 11 April 2017. This interpretation was consistent, even under XE. Conversely, Sufandi's claim that "cooperation" in his email implied self-incrimination or implicating other suspects conflicts with the context and structure of his email. The email shows Sufandi's readiness to provide documents and travel details, indicating his intent to cooperate by sharing necessary information for his travel request. Therefore, I found that Sufandi's interpretation of "cooperation" lacks merit, whereas CAO Chew's explanation is consistent and logical.

(n)     I agreed with the Prosecution and rejected the Defence's argument regarding CAO Hong's credibility. The Defence argued that CAO Hong lacked credibility because she allegedly failed to follow proper procedures in handling Sufandi's earlier travel requests. However, CAO Hong explained that there was no standard operating procedure (SOP) requiring a bail memo for every travel request from a suspect. She further clarified that she did not prepare a bail memo for Sufandi's travel requests in November 2015 and December 2015 because he did not provide essential information, such as bailor details, reasons for travel, or a complete itinerary. This explanation was corroborated by CAO Chew's testimony during RE, where she confirmed that she would not have processed Sufandi's previous travel requests in 2015 due to the lack of necessary information. CAO Hong's statement that she did not formally process Sufandi's previous request because it lacked bailor particulars was consistent with the requirements stated in the bail memo. Additionally, Sufandi's own email dated 4 April 2017 acknowledged the necessity of bailor details, demonstrating his understanding of this requirement. Therefore, the Defence's suggestion that bailor particulars are required only after the preparation and approval of the bail memo was incorrect. In my view, the alignment between CAO Hong's evidence, CAO Chew's testimony, and Sufandi's acknowledgment of the bailor requirement supported the conclusion that proper procedure was followed in handling Sufandi's travel requests. Consequently, the Defence's argument about CAO Hong's lack of credibility was unfounded.

(o)     Regarding the Defence's claim that CAO Hong was involved in the preparation of the bail memo because CAO Chew used the collective noun "we" in the document, I agreed with the Prosecution that CAO Chew's use of "we" was loose and inconsistent. Throughout the bail memo, CAO Chew alternated between using "we" and "I," indicating that "we" did not specifically imply a joint effort with CAO Hong. For example, CAO Chew used "we" to refer to a statement she recorded alone on 11 April 2017, which demonstrates that the term "we" does not necessarily mean that CAO Hong was involved in preparing the memo. Additionally, CAO Hong's testimony confirmed that she was not involved in the bail memo's preparation because she was on maternity leave during the relevant period. Furthermore, CAO Hong disagreed with CAO Chew's recommendation to allow Sufandi to travel, reinforcing that she was not part of the decision-making process concerning the bail conditions. Therefore, the Defence's suggestion that the use of "we" in the bail memo implied CAO Hong's involvement is inconsistent with CAO Chew's testimony and the context of the memo itself. This conclusion is further supported by a table submitted by the Prosecution as reproduced below:

Para

Extracts from the Bail Memo

[5]

“ … we have identified three main perpetrators of the scam, namely, Sufandi, Kok and BJ”

[11]

“I have verified from open internet source that the KL Cup

2017 is indeed slated to happen … “

[12]

“We have considered the following factors … “

[13]

“Based on the assessment above, it is my opinion that the degree of risk associated with Sufandi absconding is low.”

[15]

“We have recorded a statement from him today and it appears that he is still lending his cooperation to the Police.”

[16]

“I recommend to deviate from CAD’s guidelines …”



(p)     I rejected the Defence's argument about the interpretation of the term "cooperate" in the bail memo. CAO Chew consistently used the word "cooperate" to mean that Sufandi had fulfilled his obligation by attending interviews and answering questions. This interpretation was supported by Sufandi's own use of the term "cooperation" in his email, where he expressed his willingness to provide the necessary information for his travel request. During XE, CAO Chew disagreed with the notion that "cooperation" meant Sufandi had confessed to or implicated his co-accused. I found that CAO Chew did not use "cooperate" to imply that Sufandi had confessed or implicated others in criminal offences as a condition for the CAD to allow him to travel. Furthermore, BJ’s counsel's submission that the only significant factor that changed between June 2016 and July 2017 was Sufandi’s cooperation overlooked the fact that, unlike in his earlier travel requests in June 2016, Sufandi had provided the requisite information in April 2017 for his travel request to be processed. This included the reason for travel, the duration of travel, the destination, and the particulars of a bailor. CAO Chew disagreed with BJ’s counsel's argument that the only significant factor that changed was Sufandi’s cooperation as she had testified that she did not know when the change in circumstances occurred. Therefore, the Defence's argument about the interpretation of "cooperate" was not supported by the evidence, and the submissions by BJ’s counsel failed to account for the full context surrounding Sufandi's travel requests.

(q)     I found the Defence's argument illogical that CAO Chew's reference to Sufandi as an important Prosecution witness in the bail memo automatically corroborated the allegation that Sufandi was promised he would be treated as a witness and not charged with a criminal offence. As pointed out by the Prosecution, CAO Chew's reference to Sufandi as an important Prosecution witness in the bail memo did not imply that any promise was made to treat him as a witness instead of an accused person. The way Sufandi introduced the alleged promise during the AH suggested that he fabricated the promise after seeing the phrase "prosecution witness" in the bail memo. This indicated that Sufandi's claim of being promised treatment as a witness was not grounded in any prior agreement but was instead a later concoction. Therefore, the Defence's argument lacked a logical basis, as it incorrectly assumed that the reference in the bail memo to Sufandi as a witness meant a promise was made to treat him as a witness instead of an accused person.

(r)     The Defence argued that the testimonies of CAO Chew and CAO Hong regarding whether Sufandi was considered a Prosecution witness were contradictory, suggesting that one of the CAD officers might be lying. However, as noted by the Prosecution, this allegation was not raised during XE by any of the Defence Counsels (“DCs”), and the officers were not questioned about whether they discussed Sufandi's status with each other. CAO Chew testified that she formed her opinion about Sufandi's status independently but could not recall specific details, such as which documents influenced her impression. I found that there was no evidence indicating that CAO Hong's case summary identified Sufandi as a witness or that this document influenced CAO Chew's opinion. Therefore, I agreed with the Prosecution that no adverse inference should be drawn against them for not producing CAO Hong's case summary, as requested by the Defence. The lack of questioning on this point by the DCs during XE of CAO Chew and CAO Hong and the absence of evidence connecting CAO Hong's case summary to CAO Chew's opinion meant there was no basis for the Defence's claim of contradiction or dishonesty between the 2 CAD officers.

(s)     The Defence argued that Sufandi did not change his allegation but instead provided an additional allegation alongside the original promise that he would be allowed to travel. The Defence claimed that this demonstrated consistency and credibility in Sufandi's testimony. However, as the Prosecution pointed out, the issue is not whether Sufandi changed or added a promise, but rather that a highly critical and material promise was not mentioned at the beginning of the AH. There were inconsistencies in Sufandi's testimony, such as initially attributing the promise solely to CAO Hong, and later claiming it was made by both CAO Hong and CAO Chew. These shifts in Sufandi’s testimony during the hearing suggested a willingness to modify his evidence to suit his own purposes. An example highlighted by the Prosecution is Sufandi’s claim that the CAOs supposedly used the phrase “point finger” during the recording of the statements. This phrase was not brought up until the Bail Memo was introduced as evidence, which happened after CAO Hong had finished her testimony (but before the Defence applied to recall CAO Hong to question her about the Bail Memo). The phrase “point finger” was not mentioned, nor was it brought up during the initial XE of CAO Hong by the DCs. Later, however, the Defence began using this phrase extensively during their XE of the CAOs, and it subsequently became a part of Sufandi’s evidence, with him claiming that CAO Hong had explicitly used the words “point finger” during XE. In my view, this pattern of inconsistencies and shifts in Sufandi's testimony undermined his credibility and indicated that he was willing to tailor his evidence to support his allegations. Thus, the Defence's contention that Sufandi was merely adding to his allegation rather than changing it did not hold up against the inconsistencies in his testimony.

(t)     Regarding BJ's submission that travel was a priority for Sufandi, especially given his extensive travels after his trip in April 2017, I agreed with the Prosecution's argument that this claim was not supported by the evidence as Sufandi did not make any travel requests for a period of 1.5 years between December 2015 and April 2017.

(u)     For the above reasons, I found that the evidence proved beyond reasonable doubt that no promise that Sufandi will not be charged was made as Sufandi had concocted this promise after having seen the bail memo written by CAO Chew, and Sufandi had therefore failed the first stage of the test laid down by the Court of Appeal.

(v)     Regarding the second stage of the test laid down by the Court of Appeal, I agreed with the Prosecution that the alleged promises made to Sufandi were inherently absurd and trivial, and they did not influence him when he provided the five statements to the CAD. As pointed out by the Prosecution, Sufandi's claim that he falsely confessed in five different statements to serious offences of submitting forged documents to banks in order to be allowed to travel, and that he would risk lengthy imprisonment in exchange for short-term travel permission, lacked logic and was inherently absurd. During XE, Sufandi himself acknowledged the possibility that any false confession could be used against him and his co-accused, potentially leading to severe legal consequences, including imprisonment. This admission undercuts his claim that he would have provided false confessions simply to secure travel permission. Additionally, there was no evidence that Sufandi was misled into believing he would not be charged for providing a false confession in exchange for travel permission. He had also acknowledged the possibility that any promises made to him could be reneged upon by CAO Hong. Hence, I agreed with the Prosecution that Sufandi was not operating under any misconception and was not so gullible as to believe that the CAD would allow him to travel after providing a false confession or that he would not face prosecution or have those confessions used against him.

(w)     Sufandi's behaviour does not support his claim that travel was of utmost importance to him, rated “10 out of 10.” Despite this assertion, he did not correct a typographical error in his email dated 1 November 2015 or follow up on his request to travel with his family in December 2015. Furthermore, after his last travel request in December 2015, he did not make any additional travel requests for the next one and a half years, during which time he provided three incriminating statements to the CAD. Sufandi also did not seek clarification from CAO Hong about whether she would fulfil any alleged promises related to travel permissions. Instead, he claimed he "must be patient" and continued to express trust in CAO Hong, describing her as "honest," despite his allegation that she had asked him to falsely confess to a crime and then subsequently charged him for it. Based on the evidence presented at the AH, it is clear that travel was not a priority for Sufandi. This is evident from his willingness to wait patiently for one and a half years before submitting a detailed formal travel request in April 2017. Thus, I agreed with the Prosecution that any discussions about travel could not have subjectively induced Sufandi into giving the five statements to the CAD. His actions did not align with the urgency or importance he later claimed travel had for him, undermining the Defence's argument that travel-related promises influenced his decision to provide the statements.

(x)     Sufandi's behaviour is inconsistent with the claim that he was promised he would not be charged. Despite allegedly feeling betrayed by the CAD, he did not mention this supposed promise to his counsel at the start of the AH. In his testimony, Sufandi suggested that he adopted a nonchalant attitude, conveying a "c'est la vie" (such is life) mindset, and claimed he did not inform his counsel about the promise not to be charged because he had "no evidence" to substantiate it. However, if Sufandi genuinely believed he was promised not to be charged and then faced charges for the very offences he was allegedly asked to falsely confess to, it would be reasonable to expect him to raise these allegations immediately after being charged. Contrary to this expectation, there is no record of him doing so. He did not mention the alleged promise in his cautioned statements, his pretrial case for the defence, or at the start of the AH, despite describing the supposed betrayal by the CAD when giving evidence at the AH. In my view, the only logical conclusion is that Sufandi fabricated the alleged promises. His failure to raise the issue earlier, despite the seriousness of the betrayal he described, suggests that the promises were concocted to serve his interests during the hearing.

(y)     I accepted the Prosecution's submissions that Sufandi's statements provided a credible explanation for the changes in his position in the later statements recorded by the CAD. While Sufandi testified during his EIC that he did not confess to any criminal conduct or implicate his co-accused before the five statements in question, his earlier statements prior to 8 June 2016 did, in fact, contain confessions and implications of his co-accused. For instance, in his statement dated 2 October 2015, Sufandi implicated Kok in committing forgery, and in his statement dated 7 October 2015 at 1400 hours, he confessed and implicated Kok in inflating the stated selling price of 35 Saraca Terrace to secure a higher bank loan. Sufandi confirmed that these statements dated 2 October 2015 and 7 October 2015 were given voluntarily without any promises from CAO Hong and were admitted as part of the evidence at the trial as P-86 and P-87. The Prosecution highlighted that the difference between the earlier and later statements is not that Sufandi gave "negative" statements earlier (i.e., statements in which he did not confess to any wrongdoing) and "positive" statements later (i.e. confessions to criminal offences). Rather, the distinction lies in the degree of detail provided and the fact that Sufandi implicated his co-accused, BJ, in the later statements recorded after his release from prison. Furthermore, as pointed out by the Prosecution, Sufandi's claim that he "confessed" in the statements after 8 June 2016 due to alleged promises made by the CAD does not adequately explain why he admitted to inflating the price of 35 Saraca Terrace even before 8 June 2016 or why he provided extensive details about Kok's involvement in the cashback scheme for this property, even implicating Kok as having forged documents. In my view, this inconsistency undermines Sufandi's argument that his confessions in the later statements were solely influenced by the alleged promises from the CAD officers.

(z)     I rejected the Defence's contention that Sufandi's explanation in his statement—that he changed his mind because BJ did not keep his promise of taking care of Sufandi's family—is not the true state of affairs. The Defence argued that Sufandi could have given a positive statement while still in prison as soon as he learned from his wife, through monthly visits, that BJ had not taken care of his family. The Defence suggested that the real reason Sufandi changed his position in the statements was because of the alleged promises made by the CAD. However, I agreed with the Prosecution's position that, based on Sufandi’s own evidence, he had decided to come clean to the CAD only after confronting BJ following his release from prison. Sufandi’s explanation in his statement dated 8 June 2016 clearly stated that: “He promised me that he will take care of my family when I was in prison, but my wife said he did not. So I looked for him when I was out to ask him why he did not honour his words. He gave me a different story, he said my wife don’t want the money…. I told him to help my family if they got financial difficulties. But I think he thinks that it is useless to support my family because I am not of value to him anymore…. What I said today is the truth, I think no point hiding anymore. For my family I think I should say the truth….I wanted to protect BJ then. But now I am sick and tired of all these things. I helped him but he didn’t help me, so no point helping him anymore….” In my view, the aforesaid explanation from Sufandi’s statement dated 8 June 2016 supports the logic that Sufandi could have only decided to change his position and stop “protecting” BJ after he had the opportunity to confront BJ, which could only occur after his release from prison.

(aa)       In light of the above, I accepted the Prosecution's submissions and found that Sufandi's allegations also failed the 2nd stage of the test as laid down by the Court of Appeal. There was no basis for the Defence's submissions that both CAD officers had gauged Sufandi's level of cooperation solely based on whether they assessed his answers to be truthful and whether he implicated himself and others, or that Sufandi was promised he would be allowed to travel if he made statements that the CAD officers considered to be truthful. The Defence's assertion that these alleged promises caused Sufandi to believe he would gain advantage or avoid evil of a temporal nature is unfounded. Based on the evidence adduced at the AH, it is clear that the contents of the statements given before and after the alleged promises were made do not support Sufandi’s claim that he falsely confessed in the statements after 8 June 2016 due to promises made by CAD. Instead, the evidence proves beyond a reasonable doubt that Sufandi had been concealing BJ’s involvement while he was in prison. After his release, upon realizing that BJ did not support his family financially, Sufandi decided to disclose BJ's involvement to CAD. This decision was motivated by his personal grievances with BJ and had nothing to do with any promises allegedly made to him by CAD regarding travel or the assurance of not being charged.

(bb)       Accordingly, I ruled that there was no promise and/or inducement made by CAO Hong (PW20) and/or CAO Chew (PW21) to Sufandi in relation to his requests for overseas travel so as to get his cooperation to give positive statements implicating himself and his co-accused, thereby rendering the above five Statements inadmissible as evidence. I found that the five Statements were made voluntarily by Sufandi without any alleged promises and/or inducement by CAO Hong or CAO Chew as his allegations of promises and/or inducement are plain lies to be rejected, and the aforesaid five CAD Statements of Sufandi are therefore admitted as part of the evidence in the Prosecution’s case against the APs.

(IV) Whether the questions and answers from PW22 Gobikrishna’s statement which were read aloud in Court by the Prosecution should be ignored in view of the fact that they have been read and recorded as part of the trial proceedings, but the statement from which they were quoted was not admitted as evidence?

(a)     I have considered the written submissions and replies of the parties and also referred them to “Evidence and the Litigation Process, Seventh Edition, 2020 by Jeffrey Pinsler SC” on Refreshing Memory from 19.033 to 19.039” (“the book”) which I found to be instructive for the following relevant legal principles on a witness refreshing of memory from a document :

(i)       A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. It is not necessary for the document used to refresh memory to be admissible in evidence.

(ii)       A witness may refresh his memory in the course of any stage of examination by the party who called him or the opposing party. This is the effect of s 161 (1) EA, which does not limit the procedure to the type of examination which is being carried out.

(iii)       Although an application for the leave of the court for the witness to refresh his memory is not expressly required, this is clearly implied by the reference to the court's determination of whether the conditions of the EA have been complied with. Compliance with these conditions does not automatically entitle the witness to refresh his memory. The court must be satisfied that the witness needs to refresh his memory and that this procedure is necessary to adduce relevant evidence. When a party examining his own witness attempts to invoke s 161 EA to refresh the memory of that witness, the basic premise, apart from the conditions set out in s 161 EA, is that his memory has faded; causing him to forget certain details about the evidence he intends to give. The witness is allowed to refresh his memory because a witness should not suffer from an unintended mistake, and may explain an inconsistency. Where he testifies to facts mentioned in the document referred to under s 161 EA, provided he accepts that the facts were correctly recorded, these facts become his testimony: s 162 EA. (see Yuen Chun Yii v PP [1997] 2 SLR(R) 209 at [21]-[23])

(iv)       Where a witness refers to a document for the purpose of refreshing his memory, he may give evidence concerning the facts in that document even though he does not remember those facts, subject to the requirement that he is certain that the facts were correctly recorded in the agreement. This is provided by s 162 EA, which states: 'A witness may also testify to facts mentioned in any such document as is mentioned in s 161 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.' This section offers an additional ground on which the witness may be allowed to refresh his memory. The other grounds are contained in s 161 (1) and 161 (2) EA. The rationale of s 162, as the Illustration below shows, is the witness's conviction that the facts, if not remembered, were correctly recorded. The Illustration is as follows: 'A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.’

(v)       If a witness is permitted to refresh his memory in court and refers to a document for this purpose, the opposing party may require that it be shown to him. Furthermore, the opposing party may cross-examine the witness on that document. This requirement ensures that the opposing party has a full opportunity to test and challenge the document which the witness seeks to rely on for the purpose of refreshing his memory. If this is the opposing party's intention, he should make a formal objection. The court may then hear submissions on whether the conditions for refreshing the witness's memory have been fulfilled before deciding on whether the witness should be allowed to do so. S 163 EA states specifically as follows: 'Any writing referred to under s 161 or 162 must be produced and shown to the adverse party if he requires it; such party may cross-examine the witness thereupon.'

(vi)       The decision to cross-examine a witness on a document used to refresh his memory is a significant one, for in such an event the statements in that document may become substantive evidence in the case. S 147(4) EA states: 'Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those proceedings.' S 147(5) EA adds: 'Where a document or any part of a document is received in evidence by virtue of subsection (4), any statement made in that document or part by the person using the document to refresh his memory shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.' The position is endorsed by s 259(l)(a) CPC, which expressly refers to statements admissible pursuant to s 147 EA.

(vii)       A relevant example given in the book states as follows:

“A    witness refreshing his memory from his own notes.

Q.    When did you meet Mr Wong?

A.    The next day.

Q.    Where did you meet him?

A.    At the Milton Hotel.

Q.    What time did you meet him?

A.    About 9 am.

Q.    What did you do when you met him?

A.     I know that we visited Mr Lim and Mr Song but I cannot remember whether we did this in the morning or the afternoon.

Q.     Is there anything that would refresh your memory?

A.     Yes, I made a note that day which indicates the times of the appointments.

Advocate to judge: 'Your Honour, may the witness refer to his note to refresh his memory?'

The advocate will need to establish that the note satisfies the requirements of the applicable sections.

Judge:      'Yes.'

Q.     Please, would you refer to your memorandum and read from it.

The witness reads from memorandum.” (emphasis added)

(b)     Applying the above legal principles to the present case, it was clear to me that:

(i)       The refreshing of a witness's memory can occur during any stage of examination, whether it be EIC, XE, or RE, and it can be initiated by either the party who called the witness or the opposing party. In the present case, there was no objection from the Defence to the manner in which PW22 Gobikrishna was referred to his statement by the Prosecution during EIC at trial. The trial evidence indicated that PW22's memory had faded, causing him to forget certain details about the evidence he intended to provide. As such, the Prosecution’s action of referring PW22 to his statement was appropriate to help him recall the facts accurately.

(ii)       It is not necessary for the document used to refresh memory to be admissible in evidence and the Prosecution did not seek for it to be admitted.

(iii)       The statement had been given to the Defence as required by s 163 EA which did not object to the use by PW22 to refresh his memory.

(iv)       As PW22 had testified to the facts mentioned in the statement and accepted that the facts were correctly recorded even though he appeared not to remember those facts, these facts became his testimony.

(v)       As the EIC of PW22 had ended, it is now open to the Defence to cross-examine PW22 on the statement used to refresh his memory and the statement or any part thereof may then become substantive evidence in the present case as provided in s 147(4) EA, and under s147(5) EA, when the statement or any part thereof is received in evidence by virtue of s 147(4) EA, any statement made in that document or part by PW22 using the document to refresh his memory shall by virtue of s147(5) EA be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. The position is endorsed by s 259(l)(a) CPC, which expressly refers to statements admissible pursuant to s 147 EA as an exception to s 259 CPC which provides that: “ Any statement made by a person other than the accused in the course of any investigation by any law enforcement agency is inadmissible in evidence….”

(c)     In this regard, I rejected the following BJ’s submissions :

(i)       S 259(1) CPC makes it very clear that any statement made by a witness in course of police investigation is inadmissible, but a statement admitted under s 147 EA can be an exception to s 259(1) CPC without any impeachment proceedings under s 157 EA. The Defence reliance on the case of PP v BAU [2016] 5 SLR 146 is misconceived as that case is clearly distinguishable from the present case as despite the Prosecution’s successful application under s 161 EA in that case to adduce two statements the victim had given to the police to refresh her memory, the victim had declined to read the contents of the statements which were produced. Further, when the Prosecution then successfully applied to cross-examine the victim under s 156 EA, the victim also declined to give meaningful evidence as she had stated that she could not remember the event and could not remember telling certain persons about any sexual misconduct by the offender. Moreover, with the victim recanting her accusations, the Prosecution’s case was considerably weakened and s 147(6) was not of much help.

(ii)       If the statement of a witness is inadmissible, references to the contents of the statement should be equally inadmissible as the only purpose of s 161 EA is to allow a witness who says he cannot now remember an event due to passage of time, to refresh his memory from an account he gave in a document nearer in time and when his memory is fresh, and does not operate as a gateway to substitute what the witness had forgotten with what the witness said in an earlier document.

(iii)       It is illegal to try to substitute the contents of the statement for the evidence of the witness who is unable to remember.

(iv)       In Sebastian v PP [1970] SGHC 4 , the High Court held that there was no rule that a witness should not refresh his memory from his former statement to the police. Anything in the nature of coaching would, however, be reprehensible. The value to be attached to the evidence of a witness who had had his memory refreshed would depend on the circumstances of the particular case, since there was a likelihood that the witness would depose to what was contained in his previous statement rather than to what he actually recollected about what he had previously said. There was also the danger that a witness, who had refreshed his memory from his previous statement, might feel obliged to adhere to his previous statement even if he no longer believed it to be true. In my view, the Defence reliance on the aforesaid High Court case is also misconceived as there was no trial evidence that PW22 had deposed to what was contained in his previous statement rather than to what he actually recollected about what he had previously said, or that he had felt obliged to adhere to his previous statement even if he no longer believed it to be true.

(d)     I agreed with the Prosecution that it would appear from the above example given in the book that the EA does not prescribe how exactly the witness is to be referred to his writing or stipulate a bar against the witness being pointed orally to specific portions of his writing by reading out portions of his writing. There is also no authority for the proposition that the witness must “refer” to any writing in silence.

(e)     In the light of the above legal principles on refreshing of memory, I accepted the Prosecution submissions that :

(i)       There is no bar to a witness being orally referred to a specific portion of his writing or referred to the writing in silence based on 161 and s 162 EA as it appears from s 162 EA that referring a witness orally to a specific portion of his writing is required to give effect to that section.

(ii)       The core principle behind allowing witnesses to refresh their memory is that testimony in court should be assessed based on the credibility of the witness and not merely his ability to recall details. Memory can be fallible, especially when significant time has passed between the events in question and the witness's testimony. Courts recognize that human memory is not infallible and can degrade over time. The case of Jagatheesan s/o Krishnasamy [2006] 4 SLR(R) 45 at [82] illustrated that courts consider the natural decline in memory when evaluating the reliability of testimony. This is particularly relevant when there is a considerable gap between the events in question and the testimony provided, as is the case with PW22, whose statement was recorded 7 years after incidents that occurred 10 to 13 years ago. If a witness is not referred to specific portions of their prior statement, especially in cases where the statement is long or complex, it may lead to confusion and can hinder the court's ability to determine the truth, as the witness might struggle to recall details accurately without assistance. By orally referring a witness to specific portions of their writing, particularly when the writing is extensive, the court ensures that the witness can accurately recall and confirm the facts. This practice supports the court's goal of determining the truth, rather than merely testing the witness's memory. As the Court of Appeal had previously cautioned in Lim Hong Yap v PP [1977-1978] SLR(R) 262 at [20] as follows:

‘Testimony in the witness box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.’

‘Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.’

(iii)       The Defence’s application to expunge portions of PW22’s testimony is based on an overly technical and artificial distinction that does not serve the interests of justice. The court’s primary focus must be on ensuring that the witness’s testimony is accurate and truthful, which can be achieved by allowing the witness to be referred to their previous writings, whether read aloud by the witness or the examiner. Any concerns of prejudice can be addressed through the Defence’s opportunity to cross-examine the witness. Therefore, I rejected the Defence’s aforesaid application to expunge as there is no substantive difference between a witness reading their statement aloud and an examiner reading the statement to the witness. If the witness were to read the statement aloud and affirm its contents, it would be acceptable. Therefore, it is illogical to deem it objectionable when the examiner read it aloud. The ultimate goal is the same: to ensure the witness can accurately recall and affirm the facts. The Defence application introduces a contradiction by suggesting that different rules should apply depending on whether the process occurs during EIC or XE. During XE, it is common practice for the questioner to read out portions of the witness’s previous writings to challenge or confirm the witness’s testimony. Applying a different standard during EIC is without basis and would result in an absurd outcome—where identical actions are treated differently depending on the stage of the examination. Any potential prejudice to the Defence can be adequately addressed through cross-examination. The Defence was provided ample opportunity to challenge the witness’s testimony, including the accuracy and reliability of the previous writings being referred to. This opportunity mitigates any concern that the witness’s testimony might unfairly favor one side. The primary purpose of a court’s inquiry is to uncover the truth which is best achieved by allowing a witness to be referred to their previous written statements, ensuring he can provide accurate and clarified testimony. The process of reading aloud—whether by the witness or the examiner—facilitates this truth-finding mission by helping the witness accurately recall and confirm the details of their prior statements. As cautioned by the Court of Appeal in Lim Hong Yap v PP [1977-1978] SLR(R) 262 at [20] as follows:

“The courts, however must take care not to deprive themselves by new, artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow on a matter of practice the lure of the rules of logic in order to produce unreasonable results which would hinder the course of justice.” (emphasis added)

(iv)       Given that all the necessary requirements under s 161 EA have been satisfied, there is no legal basis to expunge any portion of PW22’s testimony. He needed to refresh his memory due to the lapse of time and his evidence should remain intact, as PW22 had stated that it represents a truthful and accurate account of the events to the best of his knowledge, and corroborated by his contemporaneous statement. Therefore, I rejected the Defence application for expungement and PW22’s testimony was allowed to stand.

(v)       As pointed out by the Prosecution, the Prosecution is not attempting to admit questions and answers from PW22's statement in his absence. PW22 was present and provided clarification during both EIC and XE, thereby ensuring his evidence was properly scrutinized in court. PW22 has unequivocally stated that the answers he was referred to during his testimony are indeed his evidence at this trial which should not be disregarded, as the Defence has requested. The Defence’s failure to raise objections earlier suggests that the Defence did not view the process as procedurally flawed at the time, and their current application to discard portions of the testimony appears to be a belated attempt to challenge the evidence retrospectively. Allowing the Defence to do so could indeed result in an unfair advantage, offering them a second opportunity to reshape the case after having already missed the proper chance to object. The Court must remain focused on the overall credibility of PW22 as a witness, rather than on minor procedural issues. The emphasis on procedural technicalities could detract from a full examination of the truthfulness of PW22's account, especially given his long-standing interactions with BJ since 2010, which are crucial for establishing context and intent. By considering the entirety of PW22’s testimony, the Court will be able to properly assess the facts without being sidetracked by an overly narrow focus on specific objections that could have been addressed earlier. In fact, when BJ’s counsel was expressly asked on his views on the refreshing of PW22 before the commencement of the refreshing process, he stated that this was “between the learned prosecutor and the witness”.[note: 9]

(vi)       For all the above reasons, I agreed with the Prosecution that PW22 had clearly stated his position on the evidence, and the procedure used to refresh his memory was correct and in compliance with proper legal procedures. The Defence should now proceed to cross-examine PW22 and make submissions regarding the weight of his evidence. I specifically rejected the Defence’s arguments that references to the contents of PW22’s statement are inadmissible merely because the statement itself is inadmissible under s 259(1) CPC. Additionally, I found no merit in the Defence's claim that the manner in which PW22’s attention was directed to the contents of the statement during EIC constituted a leading question that violated s 144 EA.

(V) Whether PW24 Zulkarnain should be allowed to testify as a Prosecution witness and whether his testimony should be admitted in evidence as part of the Prosecution’s case ?

(a)     Our criminal justice system is based on the adversarial system the features of which Jeffrey Pinsler SC in his book “Evidence and the Litigation Process Seventh Edition” stated at [1.036] to [1.037] as follows (emphasis mine):

“…the 'adversarial' process is defined by the more active role of the parties, who must take the responsibility of investigating the facts and of ensuring that their respective cases are comprehensively and effectively prepared for, and presented at, trial…

Unlike the inquisitorial system, it is not for the judge in the adversarial trial to dictate to the parties how their cases should be presented at trial. He does not take a leading role in the examination of witnesses. He does not, as a general rule, require that specific persons testify or order that particular documents be produced if this would be against the parties' wishes. The function of the judge is to assess the relative merits of the parties' cases in the state that they are presented to him. He will generally not interfere with the manner in which a party conducts his case as long as the appropriate trial procedures and rules of evidence are complied with….

(b)     In the present case, after reviewing the written submissions from the parties, I agreed with the Prosecution that the procedures outlined in the CPC for issuing the s 231 notice regarding PW24 were properly followed. The notice was sufficiently broad to provide the Defence with adequate information about the scope of PW24 Zulkarnain's evidence, which was to address the involvement of BJ and Sufandi. This notice served as a proper outline of PW24 Zulkarnain's evidence, in accordance with s 231 CPC. Additionally, the proposed conditioned statement of PW24 Zulkarnain was provided to the Defence with sufficient time for them to prepare for and conduct cross-examination. Thus, the requirements of s 231 CPC were met, and the Defence was given adequate notice and opportunity to challenge PW24 Zulkarnain's evidence.

(c)     Given that the procedures outlined in the CPC for issuing the s 231 notice regarding PW24 Zulkarnain have been properly followed, I took the view that this Court should not interfere with the Prosecution's decision on which witnesses to call. The Prosecution, as per our adversarial system (as defined in the above book), has the discretion to determine which witnesses will be called based on their assessment of the evidence presented at trial. This decision includes whether PW24 Zulkarnain should be called to address issues raised by BJ during his XE of PW20 Hong. Both parties initially agreed to the use of a proposed conditioned statement for PW24 Zulkarnain’s EIC. The Prosecution has argued that PW24 Zulkarnain's proposed testimony is relevant to rebut BJ's assertions about the unreliability of Sufandi's CAD statements as put forward during the XE of PW20 Hong. Allowing PW24 Zulkarnain to testify would ensure that the Prosecution has the opportunity to provide evidence that corroborates Sufandi's CAD statements and addresses any potential gaps in its case. Thus, I agreed with the Prosecution's position that PW24 Zulkarnain should be allowed to testify to provide a complete account of his involvement with Sufandi and BJ. This would include detailing what he was told, what he was expected to do and what he actually did. Such testimony is essential for the Court to assess his credibility and properly weigh his evidence.

(d)     For the above reasons, I rejected BJ’s submissions on :

(i)       a preliminary objection under s 231(2) CPC that a plain reading of PW24 Zulkarnain’s role indicates that he would be giving evidence that relates to the Saraca and Woodgrove properties, but his proposed conditioned Statement covers matters relating to the Limbok property, which is subject matter of a stood down charge;

(ii)       the proposed conditioned statement does not cover the issues raised in BJ’s XE of PW20 Hong; and

(iii)       PW24 Zulkarnain’s evidence is not relevant in this trial as he is not involved in the subject matter properties and his evidence does not assist in the determination of the issues and relevant facts concerning the proceeded charges.

(e)     As parties have agreed to PW24 Zulkarnain’s use of the proposed conditioned statement, I allowed PW24 Zulkarnain to testify using the conditioned statement as his EIC and be subject to XE by the Defence. Thereafter, PW24 Zulkarnain’s evidence would form part of the Prosecution’s case.

(f)     As regards whether all or any parts of PW24 Zulkarnain’s evidence should be allowed or prohibited as similar fact evidence, or be allowed as corroborative evidence which have been addressed in the submissions of the parties, I took the view that it is premature at this stage to decide on these legal issues, but the parties are free to submit on these legal issues after the conclusion of the trial for the court’s consideration and decision.

(E)   CLOSE OF THE PROSECUTION’S CASE & DEFENCE SUBMISSION OF NO CASE TO ANSWER

6       At the close of the Prosecution’s case, the APs made a Defence submission on no case to answer (NCTA) and all parties filed their written submissions on the NCTA submission for my consideration, except for Sufandi who had filed no written submissions and later confirmed at the hearing on 4 October 2023 that he would withdraw his NCTA submission. Having carefully considered and on my assessment and sifting of the various arguments and submissions made by all parties in the light of the evidence adduced at the close of the Prosecution’s case and the applicable caselaw[note: 10] governing a Defence NCTA submission at the close of the Prosecution’s case under s 230(1)(j) CPC, as well as the caselaw on cheating[note: 11] and conspiracy[note: 12], I dismissed the Defence NCTA submission as I agreed with the Prosecution that it has adduced sufficient evidence of the APs’ conspiracy to cheat Maybank, dishonestly use as genuine forged documents, as well as to fraudulently execute a deed of transfer in respect of the properties at Saraca Terrace and Woodgrove Walk. The detailed reasons are set out in the Prosecution’s submissions and I shall simply highlight the key points and explain why I rejected the Defence NCTA submissions.

Saraca Terrace

(a)     For the Saraca Terrace, the Prosecution had cited and relied on various parts of Sufandi’s CAD statements[note: 13] which contained direct evidence of the conspiracy concerning Saraca Terrace. Sufandi gave evidence that there was a scheme between BJ, Kok and himself on inflating the selling price of Saraca Terrace, in order for the sellers to give a cashback to the buyers. Further, pursuant to this scheme, forged income documents were prepared and submitted to Maybank in PW4 Naseeruddin’s name, in order to induce Maybank into giving a mortgage loan. Sufandi’s account is consistent with the evidence of the Prosecution’s witnesses (PW1 Yeo Ming Joo, PW2 Lim You En, PW3 Koh Jin Min Adrian, PW4 Naseeruddin(PW4), PW8 Wong Jing Ling Jerlyn, PW10 Leow Kwee Far Dorothy and PW12 Tay Han Liang, as well as the contemporaneous documentary evidence[note: 14]. The evidence of all the other parties involved[note: 15] in the sale of Saraca Terrace – being the sellers, their agent, Naseeruddin (the buyer), as well as the representatives of Maybank– all show that their actions were coordinated beforehand at the behest of Sufandi, Kok and BJ, with the eventual goal of cheating Maybank into disbursing the mortgage loan.

(b)     I disagreed with BJ’s submissions that there is no evidence to satisfy each of the 3 charges preferred against BJ for Saraca Terrace as the allegations in Sufandi’s CAD statements are inherently incredible because they have been denied or contradicted by Sufandi himself with confirmation provided by PW20 IO Hong herself that the only information source that she had was from Sufandi’s own statements. BJ’s reliance on the case of of Er Joo Nguang v PP is misconceived as case law is clear that conspiracy is proven generally as a matter of inference based on words and actions of the parties which indicate their concert in pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand[note: 16], and it suffices to show the parties’ awareness of the general purpose of the plot, or an agreement in principle to carry out the common design[note: 17], with no requirement to prove a physical meeting of the conspirators; that the conspirators remained in each other’s company throughout or at all; communication between each conspirator and every other; or that the conspirators knew all the details of the unlawful plot[note: 18]. Further, as held in Haw Tua Tau, at the close of Prosecution’s case, the Court must keep an open mind about the veracity and accuracy of recollection of any individual witness, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been confirmed, explained or contradicted by the evidence of other witnesses, and evidence may be rejected at this stage as being “inherently incredible” only if “no reasonable person would accept it as being true. I found that Sufandi’s evidence in his CAD statements which is not the only evidence against BJ is not “inherently incredible” that “no reasonable person would accept it as being true” as it is consistent with the evidence of the various parties involved in the purchase of Saraca Terrace where the combination of their various actions proves that each of their individual acts were coordinated beforehand and designed to achieve the overall aim of cheating Maybank. In my view, the Defence must be called so that Sufandi and BJ as his co-AP can testify and Sufandi can explain his statements and BJ can also explain his case and cross-examine Sufandi on the truth or otherwise of his CAD statements.

(c)     I rejected Kok’s submissions that no evidence has been adduced by the Prosecution to satisfy the each of the 3 charges preferred against him for Saraca Terrace that, if left unrebutted, would warrant his conviction as Kok’s submissions have totally ignored the direct evidence from Sufandi as contained in his CAD statements of the conspiracy to cheat Maybank and to use as genuine forged income documents of PW4 Naseeruddin, and that Sufandi’s evidence is consistent with the evidence of the various parties involved in the purchase of Saraca Terrace where the combination of their various actions proves that each of their individual acts were coordinated beforehand and designed to achieve the overall aim of cheating Maybank. At the close of the Prosecution’s case, there was evidence consistent with Sufandi’s CAD statements concerning the Greenwich V meeting and Kok’s involvement in the collection of cashback from the seller to show that Kok was involved in the sale of Saraca Terrace as he had explained the cashback scheme to the seller and his agent, and $300,000 cashback was given to Sufandi and Kok by the seller after Kok demanded it, telling him that Saraca Terrace was only worth $2m. In my view, the Defence must be called so that Sufandi and Kok as his co-AP can testify and Sufandi can explain his statements and Kok can also explain his case and cross-examine Sufandi on the truth or otherwise of his CAD statements.

Woodgrove Walk

(d)     As for Woodgrove Walk, the Prosecution had cited and relied on various parts of Sufandi’s CAD statements[note: 19] as well as Juma’at’s statements[note: 20] which contain direct evidence of the conspiracy concerning Woodgrove Walk as Sufandi had given a comprehensive account of the role and involvement of all the conspirators in Woodgrove Walk. Sufandi’s account of the conspiracies is consistent with the evidence of the Prosecution’s witnesses[note: 21] and the documentary evidence[note: 22].

(e)     I disagreed with BJ’s submissions that there is no evidence to satisfy each of the 4 charges preferred against BJ for Woodgrove Walk as the allegations in Sufandi’s CAD statements are inherently incredible because they have been denied or contradicted by Sufandi himself with confirmation provided by PW20 IO Hong herself that the only information source that she had was from Sufandi’s own statements. In this regard, as held in Haw Tua Tau, at the close of Prosecution’s case, the Court must keep an open mind about the veracity and accuracy of recollection of any individual witness, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been confirmed, explained or contradicted by the evidence of other witnesses, and evidence may be rejected at this stage as being “inherently incredible” only if “no reasonable person would accept it as being true. I found that Sufandi’s account in his CAD statements which is not the only evidence against BJ is clearly not inherently incredible as he has himself explained the reason for his change in position in his statements which was because Sufandi found out, upon his release from prison that BJ did not keep his promise of taking care of Sufandi’s family whilst he was in prison, and his account of the conspiracy in his CAD statements is also consistent with the evidence of the Prosecution witnesses and documentary evidence adduced. In my view, the Defence must be called so that Sufandi and BJ as his co-AP can testify and Sufandi can explain his statements and BJ can also explain his case and cross-examine Sufandi on the truth or otherwise of his statements.

(f)     There was evidence to show that BJ received $464,000 from the funds that Maybank was cheated into delivering to the buyer. This sum was paid by the sellers out of the money they received from Maybank on completion of the sale of Woodgrove Walk. The payment was made via a cheque dated October 9, 2014, paid to Evergreen Builders & Security Pte Ltd (“EBS”), followed by a cash cheque issued by EBS on 13 October 2014, which BJ, as one of the authorized signatories of the bank account, deposited into his UOB account on the same day. There was also evidence of a meeting at Greenwich V where BJ and Sufandi discussed arranging a "cash back" from the seller in relation to a transaction at 2 Limbok Terrace. Sufandi mentioned that Woodgrove Walk was purchased using a similar method, indicating BJ's involvement. BJ had disclosed to PW22 Gobi, the son of another authorized signatory of EBS, that he was involved in a "property scam." BJ then brought Gobi to a property, possibly Saraca or Mimosa, and asked him to prepare a quotation using a method similar to that used for extracting proceeds from the Woodgrove Walk transaction. The aforesaid evidence collectively showed that BJ was linked to the conspiracies related to Woodgrove Walk and was not solely implicated by Sufandi's statement, as contended by BJ.[note: 23]

(g)     For all the above reasons, I found that at the close of the Prosecution’s case, there is some evidence which is not inherently incredible and which satisfies each and every element of each of the charges preferred respectively against the APs. Therefore I called on each of the APs to give their respective defences as required under s 230(1)(j) CPC, and each elected to give evidence in his own defence with no other witnesses.

(II)    MAIN TRIAL [note: 24]

(F)   WHETHER THE PRESENT CHARGES ARE DEFECTIVE

7       BJ alone had raised the issue of defective charges and contended[note: 25] that the present charges as framed by the Prosecution are defective which, after consideration of the submissions of BJ[note: 26] and the Prosecution[note: 27], I rejected BJ’s contentions on the following grounds:

(a)     There is some ambiguity regarding the nature of the charges and whether the APs are being charged for criminal conspiracy under s 120A PC or for abetment by conspiracy under s 109 PC. The ambiguity arises from the wording of some of the charges which either state that the accused "did engage in a conspiracy" or "did abet by engaging in a conspiracy." This inconsistency makes it difficult for the APs to mount a proper defence.[note: 28] I disagreed with BJ’s aforesaid arguments as I shared the Prosecution’s view that the Prosecution has consistently referenced s109 PC in all the charges and this reference is explicitly included at the bottom of all charge sheets, clarifying that the charges pertain to abetment by conspiracy. The Prosecution's Opening Statement further clarified the nature of the charges, specifically stating that the accused "abetted by engaging in a conspiracy." BJ's defence has been conducted on the understanding that the charges are for abetment by conspiracy which is evident from BJ's submissions for his NCTA application, where he cited relevant legal provisions in ss 107 and 109 PC and referenced the case of Er Joo Nguang v PP as being instructive on the law of abetment by conspiracy. Hence, there is no ambiguity in the charges and it is clear that they are framed under s 109 PC for abetment by conspiracy, and BJ was fully aware of the nature of the charges, enabling him to mount an appropriate defence.

(b)     On the issue raised by BJ of the identification of the principal offender (the "actor") and the abettor in the charges of abetment by conspiracy[note: 29], the case of Er Joo Nguang established that under s 107(b) PC, which deals with abetment by conspiracy, there is no requirement to specifically identify the principal offender and the abettor. If two individuals agree to commit a substantive offence and one acts in furtherance of the conspiracy, both can be charged with abetting each other by conspiracy to commit that offence. Given this legal position, the Prosecution is not required to distinguish who the "actor" or principal offender is, and who the abettor is. The focus of the charges is on the agreement to commit the offence and the actions taken in furtherance of that conspiracy. The Prosecution has presented evidence that focuses on the roles and responsibilities of each AP involved in the conspiracy which is crucial in establishing their respective participation in the conspiracy, regardless of whether one is the principal offender or the abettor, as set out below:

(i)       Sufandi had submitted the loan documents to Maybank[note: 30] for both Saraca Terrace and Woodgrove Walk. Evidence from Sufandi’s CAD statements indicated that he controlled the email addresses from which the forged documents were sent to Maybank[note: 31] and he also admitted to sending the forged income documents to Maybank for both properties.

(ii)       BJ's role[note: 32] involved financing the cashback scheme by providing the necessary funds before completion and he also collected the cashback sums from the sellers after completion.

(iii)       Kok liaised with the sellers for Saraca Terrace, persuaded PW1 Yeo to state a higher price on the OTP than the actual agreed sale price, collected a cashback sum of $300,000 from PW1 Yeo after completion, and liaised with Angela Veronica, the buyer’s conveyancing secretary. [note: 33]

Given the aforesaid roles, it was evident that each individual had a part to play in the overall conspiracy. Therefore, even without specifying who the "actor" and who the abettor is, the Prosecution has delineated the respective roles and responsibilities of Sufandi, BJ and Kok involved in the conspiracy for Saraca Terrace, providing a clear picture of their involvement in the offences which form the charges preferred respectively against each of them.

(c)     I rejected BJ's arguments[note: 34] that the charges failed to clearly specify whether the act committed in pursuance of the conspiracy was the act of cheating under s 420 PC or merely the submission of forged documents s 471 PC. I agreed with the Prosecution[note: 35] that the charges have sufficiently detailed the acts committed in pursuance of the conspiracy. For the Saraca Property, BJ is charged with causing the submission of false IRAS Notice of Assessment and false CPF statement in the name of PW4 Naseeruddin to the bank. These forged documents deceived the bank into believing that PW4 Naseeruddin had an annual income of $310,300 in 2013, leading to the dishonest inducement of the bank into approving and delivering a mortgage loan to him. As regards Woodgrove Property, BJ is charged with causing the submission of similar false documents in the name of PW16 Iswandi to the bank. These documents deceived the bank into believing that PW16 Iswandi had an annual income of $471,600 in 2014, leading to the dishonest inducement of the bank into approving and delivering a mortgage loan to him. In both instances, it is clear that Maybank was cheated into delivering mortgage loans to PW4 Naseeruddin and PW16 Iswandi due to the deception created by the submission of forged income documents by Sufandi. The charges under s 471 PC, which pertain to using forged documents as genuine, have also been properly particularized. These charges detail the use of the forged income documents and the manner in which they were submitted to Maybank as part of the loan application process.

(d)     BJ had raised the issue of alleged duplicity[note: 36] of the charges under ss 420 and 471 PC because the forged documents are the subject-matter of two charges: one under s 420 PC charge, as well as a corresponding s 471 PC charge for the usage of the forged documents, and whether these charges contravene s 40[note: 37] of the Interpretation Act 1965 (“IA”) which prohibits a person from being punished twice for the same offence. I agreed with the Prosecution[note: 38] that s 135[note: 39] CPC allows the Prosecution to frame multiple charges arising from one act or conduct. Specifically, Illustration (d) [note: 40] of s 135 CPC clarifies that in relation to the same act of using a forged document, a person can be prosecuted and convicted under both ss 196 and 471 PC. S 40 of the IA also does not prohibit the Prosecution from framing multiple charges arising from the same act. In my view, the charges under ss 420 and 471 PC are not considered duplicitous as they pertain to different aspects of the same conduct. S 420 PC deals with cheating by deceiving, while s 471 PC deals with using a forged document as genuine. Both charges target distinct legal elements of the same overall criminal conduct. As the legal provisions in both the CPC and the IA allow for the framing of multiple charges arising from the same act or conduct, I took the view that the Prosecution was within its rights to charge BJ and his co-APs under both ss 420 and 471 PC for the same act involving the use of a forged document.

(e)     In Tan Khee Koon v PP [1995] 3 SLR(R) 404 at [104], the High Court held that as the effect of s 40 of the IA was that while the same set of facts may establish liability under two or more written laws, there cannot be double punishment for the same offence which meant two or more offences with the same essential ingredients. In PP v Merlur Binte Ahmad [2022] SGDC 301 at [81] to [82], the District Court applied the aforesaid High Court case and rejected the defence argument that the offence of removal of property from jurisdiction under s 47(2)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) must necessarily involve an element of possession under s 47(3) of the CDSA and thus, if the offender were convicted for both the possession as well as removal charges, the former would be duplicitous. The Court reasoned[note: 41] as follows:

“....In my view, the essential ingredients of the possession and removal offences were separate and distinct. In particular, I concurred with the prosecution’s submissions that possession of property was not a necessary ingredient for an offence of removing property out of jurisdiction. This was clearly illustrated by the example given by the prosecution of a person performing an online banking transaction on behalf of another person to transfer the money in the latter’s bank account out of jurisdiction. Thus, the fact that the Accused was in possession of the property prior to her effecting its removal from jurisdiction would not, in my view, prohibit the prosecution from proceeding with offences constituted by each criminal act. To me, this was not a case where the Accused was being punished twice in relation to the same offence.” (emphasis mine)

(f)     In the light of the above case authorities, I rejected BJ’s submissions[note: 42] which did not consider the aforesaid highly relevant case authorities. I agreed with the Prosecution[note: 43] that the charges under s 420 PC, in conjunction with s109 PC (which deals with abetment), involve a broader pattern of conduct that indicates a conspiracy to cheat Maybank into approving and delivering loans to PW4 Naseeruddin and PW16 Iswandi. The charges under s 420 encompass more than just the use of forged documents. They involve various actions that point to a conspiracy, such as coordination with others to recruit a dummy buyer; liaising with sellers to inflate prices; giving instructions to law firm staff during the conveyancing process; and facilitating the return of money to conspirators. These actions form part of a broader scheme to deceive Maybank which goes beyond merely submitting forged documents. The charges under s 471 PC specifically target the use of forged income documents in the loan applications. These charges focus on the act of using those documents as genuine, which is a separate legal violation from the broader conspiracy. The essential ingredients of the charges under ss 420 and 471 PC are clearly separate and distinct. While the use of forged income documents is part of the broader conspiracy under the s 420 PC charges, it is not the sole basis for the offence of cheating as defined under s 420 PC which does not require the use of forged documents as a necessary ingredient. As the charges under ss 420 and 471 PC address different ingredients, BJ and his co-accused persons have therefore not been charged and punished twice for the same offence which legally refers to offences with the same essential (and not separate and distinct) ingredients, which is not the case here.

(G)   EVIDENCE & CREDIBILITY OF THE KEY PROSECUTION WITNESSES

8       Based on the ASOF, the Notes of Evidence and other relevant documentary evidence adduced at the trial, the relevant salient facts from the evidence of the Prosecution Witnesses may be summarised as follows:

Saraca Terrace

(a) PW1 Yeo Ming Joo[note: 44] (“Yeo”)

(i)     PW1 Yeo Ming Joo (“Yeo”) and PW2 Lim Yeo En (“Lim”) as the owners of Saraca Terrace, purchased the property in 2010 for about $1.15 million. Their goal was to sell the property for $2 million or more. They engaged PW3 Adrian Koh Jin Min (“Adrian”) to facilitate the sale. Adrian was responsible for marketing the property and finding potential buyers. Despite Adrian's efforts, the property remained unsold for six months. Factors such as noise pollution from the Central Expressway likely contributed to the lack of interest from potential buyers. Adrian eventually introduced Yeo to someone identified as "Andi," who was later revealed to be Sufandi. Sufandi expressed interest in purchasing Saraca Terrace and made an initial offer of $2.9 million.

Despite the seemingly attractive offer, Yeo rejected it. His concerns stemmed from his position as a civil servant and his reluctance to invest the sale proceeds into a proposed company without clear details about his shares, the expected returns, and the potential legal risks associated with the company's activities.

(ii)     After initially rejecting the first offer, Yeo agreed to a second offer for the sale of Saraca Terrace during a meeting at a coffee shop in Greenwich V. This meeting was attended by Yeo, his agent Adrian, Sufandi, and an individual referred to as "Nicholas," later identified as Kok. The sale price for Saraca Terrace was agreed upon at $2.9 million. Despite the sale price, Yeo was informed that he would not receive 19% of the sale proceeds. Specifically, he was not to encash the cheques for the 4% option exercise fee and the 15% downpayment. Instead, Yeo would receive only $2.3 million from the sale. Kok was the one who explained these conditions to Yeo during the meeting, clarifying the specifics of how the sale proceeds would be handled. On 15 March 2014, an OTP was issued by Yeo and Lim to sell Saraca Terrace for $2.9 million. The OTP was in the name of a person called Naseeruddin, with Naseeruddin’s name, address, and NRIC number already filled in on the document that Yeo received. Yeo assumed that "Naseeruddin" was the real legal name of "Andi" (Sufandi), believing them to be the same person. On 15 March 2014, Adrian handed Yeo a post-dated cheque for $29,000, which was issued in Sufandi’s name. Adrian informed Yeo that the cheque could be encashed after 19 March 2014. Before 19 March 2014, Adrian informed Yeo that Sufandi wanted to provide cash instead of using the cheque. Yeo subsequently received $29,000 in cash from Sufandi at Saraca Terrace. After receiving the cash, Yeo scanned the cheque and returned it to Sufandi.

(iii)     Yeo agreed with Sufandi and Kok not to encash the cheques for the 4% option exercise fee ($116,000) dated 23 March 2014 and the 15% downpayment ($435,000) dated 15 April 2014. Both cheques were issued from the OCBC account of LQ Investment, where Sufandi was the registered sole proprietor. These cheques were later seized by the CAD. Yeo informed his solicitors, Matthew Chiong Partnership, that he was not going to encash the cheques. This communication occurred on or before 21 April 2014. In a letter dated 21 April 2014, Matthew Chiong Partnership acknowledged that Yeo had already received 15% of the sale price before the completion of the sale, even though the cheques themselves were not encashed. The sale of Saraca Terrace was completed on 22 April 2014. Around the completion date, Kok visited Saraca Terrace and demanded $300,000 from Yeo, claiming that the property was worth only $2 million. Fearing potential repercussions, such as losing his job or facing harm to his family, Yeo complied with Kok’s demand. On 24 April 2014, Yeo withdrew $299,000 from his Citibank account. The next day, Yeo handed $300,000 to Kok at Saraca Terrace. Kok was accompanied by Sufandi when the payment was made.

(b) PW2 Lim You En[note: 45] (“Lim”)

(i)     Yeo’s wife, Lim testified that she left the handling of the Saraca Terrace sale entirely to her husband. Lim could not remember whether there was an agreement not to encash the 4% option exercise fee cheque and the 15% downpayment cheque.

(ii)     Lim did not recall whether Yeo had informed her about the $299,000 cash withdrawal that was made to pay Kok and also could not remember whether there was any agreement to pay a cashback to the buyer.

(c) PW3 Koh Jin Min Adrian[note: 46] (“Adrian”)

(i)     Adrian testified that he first became acquainted with PW1 Yeo during their National Service. Yeo later engaged Adrian to market and sell Saraca Terrace, which involved listing the property online to attract potential buyers. Adrian noted the difficulties in selling Saraca Terrace, with only about 10 viewings conducted. These challenges were likely due to factors such as the property’s location and possibly its condition or surrounding environment, such as noise pollution from the nearby Central Expressway. Despite the difficulties, Adrian eventually received an offer from a buyer named “Andi,” whom he later identified as Sufandi. This contact was initiated through one of Adrian’s online listings for Saraca Terrace. Following the contact, Adrian arranged a viewing of the property at Sufandi’s request.

(ii)     Sufandi arranged a meeting at a KFC restaurant on the west side of Singapore. During this meeting, Adrian met a "Chinese guy" who introduced himself as Sufandi’s partner. Adrian later identified this individual as Kok. Kok proposed two cashback schemes to Adrian, both of which involved the buyer receiving money back from the seller after the sale of Saraca Terrace. The first scheme involved the sellers signing an IOU with the buyer, agreeing to repay the money owed from the sale proceeds. Essentially, the sellers would acknowledge a debt to the buyer that would be settled from the proceeds of the sale. Under the second scheme, the sellers would invest the sale proceeds into a company, which was part of the cashback scheme. Adrian informed Yeo about the second scheme, which involved investing the sale proceeds into a company, but Yeo rejected it.

(iii)     After Yeo rejected the initial offer made at the KFC meeting, Kok continued to pursue the matter with Adrian. Kok requested Adrian to arrange a direct meeting between himself and Yeo. Adrian arranged a meeting at Greenwich V, which took place in the evening and included Adrian, Yeo, Kok, and Sufandi. This meeting occurred a few days before the Option to Purchase (OTP) dated 15 March 2014 was signed. According to Adrian, the meeting was brief, lasting about 10 minutes. Adrian was on a phone call during the meeting and did not know what was discussed among Yeo, Kok, and Sufandi.

(iv)     According to Adrian, Yeo received a post-dated cheque dated 19 March 2014 from Sufandi on 15 March 2014 and was instructed to encash the cheque on or after 19 March 2014.

(d) PW4 Mohammad Naseeruddin bin Allamdin[note: 47](“Naseeruddin”)

(i)     Naseeruddin who had identified Sufandi at the trial agreed to act as a "dummy buyer" for Saraca Terrace as proposed by Sufandi. Sufandi promised Naseeruddin $60,000 for his participation in the scheme. Naseeruddin was instructed to lend his name to the transaction, sign the necessary conveyancing documents, and apply for a mortgage loan with Maybank. He was not required to pay anything for the house being bought in his name. Following Sufandi's instructions, Naseeruddin visited the Maybank branch at North Bridge Road on 7 April 2014. He signed the Mortgage Facility Letter for a mortgage loan amounting to $2,320,000 for Saraca Terrace. Naseeruddin also went to Lutfi Law Corporation ("Lutfi Law") to execute and sign the Land Titles Act Mortgage Instrument. After the completion of the purchase of Saraca Terrace, Naseeruddin received $40,000 in cash from Sufandi, which was less than the $60,000 initially promised.

(ii)     Naseeruddin did not directly correspond with any bank officer or sign the Maybank Mortgage Loan Application Form himself. Instead, he was instructed by Sufandi to pretend to be working for IGB International Pte Ltd. The Maybank Mortgage Loan Application Form, along with various income documents, was submitted electronically to the bank. These documents included an IRAS Notice of Assessment (NOA) dated 12 June 2013; a CPF Contribution History Statement dated 18 March 2014; Pay statements from IGB International Pte Ltd for the period from November 2013 to February 2014. Naseeruddin testified that all of these documents were false.

(iii)     After discovering from Sufandi that forged income documents were used to secure the mortgage loan in his name, Naseeruddin requested Sufandi for a copy of these documents. His intention was to use the forged documents to obtain additional loans, such as a car loan and a personal loan from HSBC. Naseeruddin admitted to his role in the fraudulent scheme and served prison time for obtaining additional loans using the same forged documents. As pointed out by the Prosecution[note: 48], there is no apparent ulterior motive for Naseeruddin to falsely implicate Sufandi given that Naseeruddin has served prison time for related crimes and was aware of the forged documents used in the mortgage application,

(e) PW5 Fauziah Binte Mohamed Hussain @ Angela Veronica[note: 49] (“Angela Veronica”)

(i)     Angela Veronica, a conveyancing secretary at Lutfi Law, identified Kok as "Nicholas," a housing agent who had previously referred conveyancing cases to Lutfi Law. Kok referred the Saraca Terrace transaction to Lutfi Law, prompting Angela Veronica to open a file with reference number LUT/7502/03/14/AV (PTE) on 24 March 2014. The file cover page listed "Nicholas" as the agent and included details such as the agency name "Oasis Agent" and a mobile number (xxxx) that Angela used to communicate with Kok. Kok provided Angela Veronica with all the necessary documents and information for the conveyancing process, including the buyer's information; completion period; financing mode; signed OTP; 4% cheque option exercise fee; and the certificate of Buyer's Stamp Duty (BSD), which Kok was responsible for paying. Kok emailed the OTP to Angela Veronica a few days before 25 March 2014. This OTP contained Naseeruddin’s name, address, and phone number (xxxx). The phone number in the OTP matched the one listed in the Maybank Mortgage Loan Application Form.

(ii)     Kok informed Angela Veronica via a phone call that the completion of the Saraca Terrace conveyancing was to occur within four weeks. He specified that the financing for the purchase would be through a mortgage loan from Maybank, and there would be no utilization of the buyer’s CPF funds. Kok communicated to Angela that the buyer, Naseeruddin, was agreeable to incurring additional charges because Lutfi Law was not on Maybank’s panel of solicitors. As a result, another solicitor would need to be appointed by Maybank to handle the mortgage-related aspects of the transaction. Angela Veronica instructed Kok to arrange for Naseeruddin to attend Lutfi Law to sign the Mortgage Instrument. Following this instruction, Naseeruddin complied and attended Lutfi Law to execute the necessary documents.

(iii)     On 24 March 2014, Kok provided Angela Veronica with the signed OTP and the 4% cheque for exercising the OTP. This action allowed Angela Veronica to move forward with the process, ensuring that the OTP was exercised. On 25 March 2014, Angela Veronica forwarded both the original OTP and the 4% cheque to Matthew Chiong Partnership, the solicitors representing the sellers, to formally exercise the OTP. Angela Veronica requested Kok to provide the BSD cheque, which was necessary for the completion of the conveyancing process. Kok assured her that he would deliver the BSD cheque within a few days but failed to do so initially, prompting Angela to follow up. Despite the delay, Kok eventually provided Angela Veronica with a copy of the BSD certificate after paying the BSD.

(iv)     Angela Veronica's testimony that Kok was responsible for paying the BSD is corroborated by the documentary evidence showing Kok's purchase of a cashier's order for $81,600, payable to the Commissioner of Stamp Duties. This payment was made using funds from the Maybank account of Oasis Realtors & Consultant Pte Ltd, a company where Kok was the sole authorized signatory. Angela Veronica contacted Kok to arrange for Naseeruddin to attend Lutfi Law to sign the Mortgage Instrument. Kok was also involved in arrangog for Naseeruddin to signed the mortgage documents. Kok informed Angela Veronica that 15% of the purchase price had been paid and this information was later verified by Angela Veronica through correspondence with Matthew Chiong Partnership, which confirmed that the 15% deposit had indeed been paid before completion, aligning with the agreement among Yeo, Sufandi, and Kok regarding the payment terms.

(f) PW9 Wong Jing Ling Jerlyn[note: 50](“Wong”), PW10 Leow Kwee Far Dorothy[note: 51] (“Dorothy”) & PW12 Tay Han Liang[note: 52] (“Tay”) (Maybank officers), PW8 Tan Poh Geok[note: 53] (“Tan”)(IRAS officer)

(i)     Owing to the submission of forged income documents, Maybank was deceived into approving and disbursing the mortgage loan for Saraca Terrace based on the evidence of Maybank Officer, Wong who had received via email, various forged documents in the form of IGB International Pte Ltd pay statements, CPF Board Contribution History dated 18 March 2014, and IRAS NOA dated 12 June 2013 in relation to the mortgage loan application in the name of Naseeruddin. Trial evidence showed the aforesaid CPF documents were forged as compared to Naseeruddin’s real CPF records which are different from the CPF Board Contribution History submitted to Maybank, and IRAS also did not issue the IRAS NOA dated 12 June 2013 according to Tan.[note: 54]

(ii)     Maybank was dishonestly induced into approving the loan as Maybank took into consideration the false IRAS NOA and CPF Board Contribution History in assessing whether to approve the mortgage loan made in Naseeruddin’s name, and had Maybank known that the submitted IRAS NOA and CPF Board Contribution History were not genuine, it would not have approved the loan, according to the evidence of Dorothy and Tay.[note: 55]

(iii)     Maybank was cheated to approve the mortgage loan, through the submission of forged income documents, and it disbursed $2,320,000.[note: 56]

(g) PW7 Go Theng Theng[note: 57] (“Go”)

Mdm Go who is an IRAS officer testified that the certificate of stamp duty for the Saraca Property was issued on 16 April 2014. The payment slip for the stamp duty was issued on 26 March 2014 and it was paid using a cashier's order. Mdm Go explained that when stamp duty is paid at the service bureau, they ensure that the document to be stamped and the amount to be paid are correct. Regardless of who makes the payment, as long as the document and amount are accurate, the stamp duty is processed. She cannot confirm if the service bureau verified the identity of the person paying the stamp duty at the service bureau.[note: 58]

Woodgrove Walk

(a) Mohamad Hamzi Bin Rabu (deceased) (“Hamzi”)

(i)     Hamzi who had passed away gave statements to the CAD which were admitted pursuant to s 32(1)(j) EA[note: 59]. He had admitted to wrongdoing in his statements to CAD, by misstating the price of Woodgrove Walk on the conveyancing documents, and also admitted to the same facts during his plead guilty hearing where he was sentenced to 12 months’ imprisonment.[note: 60]

(ii)     Hamzi and PW6 Rohana engaged Haron and Juma'at as property agents to sell their property for an original price of $2.4 million. The agents marketed the property using various channels, including newspapers and online platforms. Haron eventually found a buyer but suggested increasing the price stated on the conveyancing documents to $3.55 million to cover purported renovation costs, while still assuring Hamzi that they would receive $2.4 million from the sale. Hamzi agreed to this arrangement. Hamzi and Rohana later met with Juma'at at Woodgrove Walk, where they were given a 1% option fee of $24,000 and signed a blank OTP document. This OTP was subsequently completed with the inflated purchase price of $3.55 million. Hamzi later claimed not to have seen a different version of the OTP presented by the CAD. Despite agreeing to the price mark-up to $3.55 million, Hamzi and Rohana did not receive the expected 19% of the marked-up price, which amounted to $674,500. When their solicitor raised concerns about this discrepancy, Haron assured Hamzi that he would discuss the issue with the lawyer.

(iii)     After the buyer purportedly exercised the OTP, without Hamzi ever meeting the buyer, Haron instructed Hamzi to sign additional documents. These included P52, which was a renovation quotation and a letter of authority to facilitate payment to a renovation contractor, EBS. Although Hamzi had not met the buyer and was only following Haron's instructions, he complied and signed the documents. As the proceeds from the sale of the property were paid directly to Hamzi and Rohana, Haron reminded Rohana to issue a cheque in favour of EBS. Following the completion of the property sale, Hamzi was hospitalized for an operation. During his hospitalization, Haron and Juma'at visited him to collect cash. However, Hamzi asked them to wait until he was discharged to withdraw the money. Subsequently, they agreed to receive a sum of $464,000 via cheque, paid to EBS using funds from Hamzi's father's account.

(iv)     The $7,000 cheque issued to Haron and Juma'at on 9 October 2014 was intended as a commission for their role as property agents in facilitating the sale of the Woodgrove Walk property. This payment was not just a token of appreciation, but a formal commission for their services.

(b) PW6 Rohana Binte Januri[note: 61] (“Rohana”)

(i)     Rohana was fully aware that Haron and Juma'at were acting as their property agents for the sale of the Woodgrove Walk property, where she and Hamzi had lived for about 10 years. She acknowledged that the property was in poor condition with no recent improvement works and understood the need to sell it to cover Hamzi's medical bills and debts. When Haron and Juma'at contacted them to arrange viewings and discuss the sale, Rohana understood that they were representing her and Hamzi as property agents. She confirmed that she and Hamzi usually attended meetings together with Haron and Juma'at and was aware that a commission would be paid to the agents if they found a buyer for the property. Rohana identified her signature on the OTP document (P34) as genuine. However, she mentioned that she had not seen another version of the OTP in P38 and did not recognize the signatures on it as hers or Hamzi's. She was unsure of which portions of P34 were filled in at the time of signing but inferred that Haron or Juma'at likely completed the handwritten portions or made amendments, as the handwriting did not match hers or Hamzi's. Furthermore, Rohana recalled receiving the 1% option fee in cash from either Haron or Juma'at at Woodgrove Walk on the same day they signed P34. Following this, either Haron or both Haron and Juma'at took possession of the OTP.

(ii)     Hamzi and Rohana agreed to a payment of $464,000 to EBS, based on a renovation quotation and a letter of authority they signed. Rohana was not fully aware of the specifics behind this payment but believed it was intended for renovation work after they vacated Woodgrove Walk. This understanding was based on information provided by the agents (either Haron or Juma’at). Rohana was under the impression that Hamzi had already arranged with the agents for both of them to contribute towards the renovation costs, as the property was in poor condition. Furthermore, Hamzi and Rohana never received a sum of $674,500, which was 19% of the sale price of a property.

(iii)     On 7 October 2014, Haron sent a message to Rohana asking her to prepare cashier's orders for several amounts of “$145,712.28 to TAN & JIANG ENTERPRISE PTE. LTD; $464,000 to EVERGREEN BUILDERS & SECURITY PTE LTD; $3,417.50 (inclusive of $350 to UOB n $267.50 to CPF) to RELIANZE LAW CORPORATION; and 0.5% to MOHAMED HARON BIN HASSAN”. Despite these instructions, no cashier's orders were actually prepared based on the message from Haron. However, Haron and Juma’at continued to push Hamzi and Rohana to provide the $464,000 for the renovation. Given that Hamzi was hospitalized at the time, either Haron and Juma’at visited the hospital to collect the cheque. On 9 October 2014, Rohana did issue a cheque, but it was for $7,000 to Haron as commission. This amount was negotiated down due to her financial difficulties, including outstanding loans and the fact that she did not have a house at that time.

(c) PW11 Mohamed Pauzi Ali[note: 62] (“Ali”)

Ali’s evidence was that the DBS Treasures POSB Bank Statement in P44 was forged.[note: 63]

(d) PW14 Kanthosamy Rajendran[note: 64] ("Rajendran")

(i)     Rajendran first met with Haron and Hamzi at his office in Peninsula Plaza in the first week of August 2014 or earlier. They requested Rajendran's assistance in removing a caveat on Woodgrove Walk, which had been lodged by a moneylender, Tan & Jiang, in order to facilitate the sale of the property. Rajendran succeeded in removing the caveat with the consent of Tan & Jiang, allowing the sale process to proceed. On 3 September 2014, Haron informed Rajendran via a phone call that the buyer intended to exercise the option to purchase Woodgrove Walk. Shortly after, Rajendran received an email from Messrs Gopal & Rai, the solicitors representing the buyer, confirming that Rajendran had been appointed to act for the sellers (Hamzi and Rohana). On 12 September 2014, a meeting was held at Rajendran's office, attended by Haron, Hamzi, and Rohana. Juma’at was present but did not enter the conference room. Prior to Rajendran joining the meeting, another lawyer, Mdm Prasanna D/O TV Prabhakaran (PW15), spoke with Haron, Hamzi, and Rohana. Rajendran assumed there were no issues regarding the sum of $674,500, which should have been paid upon exercising the option to purchase. This assumption was based on the presence and apparent agreement of Hamzi and Rohana to proceed with the transaction.

(ii)     During the meeting on 12 September 2014, Hamzi and Rohana executed a Letter of Authority as a statutory declaration, providing instructions for the distribution of the sale proceeds from the sale of the Woodgrove Walk property. The instructions were given to Rajendran, the seller’s solicitor, by Haron and Hamzi, detailing how the proceeds should be allocated. Among the specified payments was a sum of $464,000 to EBS, which was labelled as "renovation expenses." This payment was supported by a quotation provided at document P52, which Rajendran identified as the basis for the $464,000 payment. Despite the preparation of this Letter of Authority and the clear instructions on how the proceeds were to be distributed, Maybank, which was involved in the transaction, refused to disburse the sale proceeds according to the instructions outlined in the Letter of Authority. Maybank insisted that the sale proceeds should only be paid directly to the vendor (Hamzi and Rohana) and not to any other party, such as EBS or other third parties mentioned in the letter. As a result of Maybank's refusal to follow the Letter of Authority's instructions, when the sale was completed on 3 October 2014, the distribution of the proceeds did not occur as initially planned.

(iii)     Rajendran confirmed that the only OTP that he saw was P34. He had not seen another version of the OTP[note: 65], when conducting the conveyance of Woodgrove Walk.

(e) PW15 Prasanna D/O T.V Prabhakaran[note: 66] (“Prasanna”)

Prasanna was present to take notes on behalf of Rajendran, who was not in the meeting initially because he was attending to a court matter. She was there for about 10 minutes before Rajendran returned and took over the meeting. During this time, she documented the discussions and instructions provided by the attendees. She could not recall whether Juma'at was present at the meeting. However, she clearly remembered that Hamzi, Rohana, and Haron were there.

According to Prasanna, the instructions regarding the document in P50 might have originated from Haron. However, Hamzi and Rohana, as the sellers, would also have had to provide confirmation or input regarding this document. Prasanna recalled that the quotation in document P52, which pertained to the $464,000 payment to EBS for "renovation expenses," was provided by Haron. She also confirmed that after the meeting on 12 September 2014, Rohana returned to the office to speak with Rajendran.

(f) PW16 Iswandi Bin Yahya[note: 67] (“Iswandi”)

(i)     Iswandi, who was serving a 24-month imprisonment sentence after pleading guilty to a charge of cheating Maybank under s 420 PC, testified that he was introduced to the scheme by a friend named "Boy," who brought another individual, "Bobby," to meet him. "Bobby" explained that Iswandi could earn quick money by signing papers for renovation or housing loans. Another individual, "Fandi," introduced by "Bobby," further explained the scheme to Iswandi. He was given the choice between a renovation loan or a housing loan. Iswandi chose the housing loan in exchange for a promised payment of $5,000, which would be paid to him by either "Fandi" or "Bobby" after he signed the documents and once the loan was processed and cleared. After his release from the Drug Rehabilitation Centre (“DRC”), "Bobby" contacted Iswandi again to continue with the loan scheme. Iswandi agreed to proceed. "Bobby" arranged a meeting between Iswandi and Maybank officer PW13 Ammar Salim bin Ariff ("Ammar Salim") at a Kopitiam at Lavender MRT. During this meeting, Iswandi signed the Mortgage Facility Letter for a mortgage loan amounting to $2,840,000 for the Woodgrove Walk property. Iswandi admitted that he was aware he was taking out a mortgage loan that he had no intention or ability to repay. He was assured by "Bobby" or "Fandi" that they would take care of the repayment. Iswandi also went to a lawyer’s office in Chinatown, where he executed and signed the Mortgage Instrument.

(ii)     Iswandi stated that he neither filled out nor signed the Maybank Mortgage Loan Application Form. He denied any involvement in the submission of this form to Maybank. The contact number (xxxx), email address (xxxx), employment information, and marital status provided in the loan application form were incorrect and did not belong to him. Iswandi confirmed that he did not submit the loan application form electronically to Maybank. The loan application was accompanied by several documents, purportedly to verify Iswandi's income and financial status, which included an IRAS NOA dated 23 May 2014, a CPF Contribution History Statement dated 15 August 2014, and pay statements of Option Vests Pte Ltd from June to August 2014. Iswandi testified that he had never seen these documents before and that the information they contained was false. He did not provide these documents, and they did not reflect his true financial situation.

(g) PW18 Tay Chye Huat[note: 68] (“Tay”)

(i)     Tay co-founded EBS with BJ, who provided the capital investment necessary to start the business and for the running account of the business. BJ and another individual, Chinaya, were the authorized signatories for the company's bank accounts. Tay agreed to this arrangement because BJ had invested the initial capital. Within EBS, there were distinct divisions for different aspects of the business. Tay was responsible for the CCTV aspect of the business, focusing on security systems and related technology. BJ managed the building aspect, which involved construction and renovation projects. This division of responsibilities meant that their business activities and profits were separate. Tay’s earnings came from the CCTV works, which were his area of responsibility. BJ’s earnings came from the building works. Tay emphasized that the CCTV and building divisions operated independently of each other. He did not interfere in the building projects managed by BJ and BJ did not interfere in the CCTV operations. While Tay was not directly involved in the building works, he acknowledged being aware that EBS was engaged in such projects. EBS became dormant around 2015 due to a lack of work and was formally closed around 2018, with the capital initially provided by BJ returned to him.

(ii)     Tay testified that he was unfamiliar with the source or intended use of the funds referenced in the EBS Quotation in document P52. He first encountered this document during the course of the investigations. Upon reviewing the quotation, Tay identified it as being associated with building and renovation works, which were handled by BJ, his business partner at EBS. When Tay saw the quotation, he sought clarification from BJ regarding its purpose and origin. BJ confirmed to Tay that the quotation pertained to the building division of EBS, which BJ managed. Satisfied with this explanation, Tay did not pursue any further inquiries about the document or the funds mentioned in it.

(h) PW19 Shirley Goh[note: 69] (“Shirley”)

(i)     Shirley, a conveyancing secretary at the law firm of Wong, Gopal, and Rai, testified she had received instructions from one "Fandi" concerning the buyer of the Woodgrove Walk property. On 3 September 2014, "Fandi" provided Shirley with the OTP document in P34. In court, based on an identification via photograph in P68, Shirley stated that it was possible that the person she knew as "Fandi" was Sufandi bin Ahmad. "Fandi" informed Shirley that the buyer, Iswandi, was often busy and travelled overseas frequently. Due to this, he provided Iswandi's email address (xxxx) for communication purposes. Additionally, he gave Shirley his own mobile number (xxxx) as a point of contact. Shirley attempted to contact Iswandi via the provided email address, under the belief that she was corresponding directly with him. However, she often faced challenges in getting a timely response. This lack of direct communication with Iswandi led Shirley to frequently contact "Fandi" for updates and guidance on the transaction.

(ii)     Shirley was informed by "Fandi" that the option exercise fee of $674,500 had been paid directly to the seller. "Fandi" mentioned that this was in accordance with an existing arrangement between the buyer and seller. On 29 September 2014, "Fandi" personally delivered the BSD certificate for the Woodgrove Walk property and three cheques covering legal fees, BSD, and property tax to Shirley at the Wong, Gopal, and Rai office. In her conveyancing file, P81, Shirley recorded various details related to the Woodgrove Walk transaction. This included the client's name, address, and the financial figures relevant to the sale. Although Shirley had no direct connection or communication with Haron, she recorded the names of individuals associated with the transaction in P81, including "Alex/Haron." During XE, Shirley explained that she had believed Haron to be the housing agent involved in the transaction, though she could not precisely recall how she obtained this information.

(i) PW13 Ammar Salim bin Ariff[note: 70] (“Ammar Salim”) & PW10 Leow Kwee Far Dorothy[note: 71] ("Dorothy") (Maybank officers)

(i)     Ammar Salim began communicating with an individual known as "Mr. Iswandi" (contact number: xxxx) in early August 2014 regarding the valuation of a property at Woodgrove Walk. "Mr. Iswandi" asked if Maybank could match a valuation of $3.6 million for the property. Ammar Salim managed to obtain valuations of up to $3.55 million for Woodgrove Walk. On 6 August 2014, he received an email from "Mr. Iswandi" (xxxx) containing the following attached documents: (a) A scanned copy of an NRIC belonging to Iswandi; (b) Various Pay Statements of Option Vests Pte Ltd in relation to Iswandi between June 2014 and August 2014, which stated that he was paid a salary ranging between $36,500 and $38,000 per month; (c) A CPF Contribution History Statement dated 5 August 2014 under the name of Iswandi, which stated that he received $1,800 per month in CPF contributions from his purported employer, Option Vests Pte Ltd; and, (d) An IRAS NOA dated 23 May 2014 under the name of Iswandi which stated that he had an annual income of S$471,600 in 2013.[note: 72]

(ii)     Between 6 and 13 August 2014, Ammar Salim received several emails from "Mr. Iswandi" (xxxx) enclosing the following documents: (a) A signed Maybank mortgage loan application form dated 5 August 2014, which stated that Iswandi has been employed as a Senior Consultant with Option Vests Pte Ltd for a period of four years, as well as the relevant MAS Declaration Form; (b) An IRAS NOA dated 19 June 2013 under the name of Iswandi which stated that Iswandi supposedly had an annual income of $310,900 in 2012; (c) Statements of DBS Treasures POSB Passbook Savings Account bearing xxxx for the months of June 2014 to August 2014; and, (d) Pages 1, 2, 3, 4, of an Option to Purchase, in respect of 1 Woodgrove Walk, granted to Iswandi on 10 August 2014, by the vendors, Rohana and Hamzi. On Page 4, the acceptance copy of the Option to Purchase was unsigned. Believing these documents to be genuine, Ammar Salim submitted them to Maybank's Credit Processing Department for approval of the mortgage loan. He later stated that he would not have submitted these documents if he had known that the income documents were forged.[note: 73]

(iii)     Dorothy explained that her team at Maybank received the Option Vests Pte Ltd pay statements, CPF Board Contribution Histories, and the IRAS Notice of Assessment (NOA) related to the mortgage loan application in Iswandi's name sometime in August 2014. Maybank relied on these documents to assess and approve the loan application. However, Dorothy stated that if Maybank had known that these documents were not genuine, the bank would not have approved the loan. As a result, Maybank was dishonestly induced into approving the loan based on falsified documents.[note: 74]

(iv)     After Maybank approved Iswandi’s loan on 15 August 2014, Ammar Salim informed "Mr. Iswandi" that the letter of offer was ready. Later that month, Ammar met the real Iswandi at a food court near Lavender. Ammar confirmed the real Iswandi’s identity by checking his face against his NRIC and assumed this was the same person he had been communicating with via email and phone. After the real Iswandi signed the Letter of Offer, Maybank disbursed $2,840,000 for the purchase of Woodgrove Walk.[note: 75]

(j) PW7 Go Theng Theng[note: 76] (“Go”)

Go who is an IRAS officer testified that the certificate of stamp duty for the Woodgrove Property was issued on 29 September 2014. Based on the Form E1A (Requisition Form for the Sale and Purchase of Immovable Property), Sufandi had applied for the certificate on 15 September 2014, and payment was made in cash on 29 September 2014. Go stated that when stamp duty is paid at the service bureau, the bureau only ensures that the document to be stamped and the amount to be paid are correct. Regardless of who pays the stamp duty, the document will be stamped, and they will not reject the payment solely because it is not the named buyer personally paying the stamp duty. Go cannot confirm if the bureau verified the identity of the person paying the stamp duty at the service bureau.

(k) PW22 Gobikrishna s/o Chinaya[note: 77] (Gobi)

(i)     Gobi testified that he established Evergreen Landscaping & General Construction around 2010 with financial support from BJ, who provided $50,000 as starting capital. The business was registered under Gobi's father, Govindasamy Chinaya's name, but Gobi independently managed its operations. The collaboration with BJ ended around 2015 when Gobi repaid the $50,000 capital. Evergreen Landscaping continues to operate, with Gobi still managing its operations.

(ii)     According to Gobi, Evergreen Landscaping is a separate entity from EBS. Gobi filed for a Personal Protection Order against BJ for harassment, but this action was taken after he had repaid BJ the capital for Evergreen Landscaping.

(iii)     In 2014, BJ requested Gobi to prepare a quotation for renovation work on the Saraca Property. Gobi was hesitant to provide the quotation because he was concerned that if the loan associated with the quotation was not repaid, it might jeopardize his business or his father's financial standing.

(iv)     Gobi stated that he had not seen the EBS quotation in P52 until his interview with the CAD. He did not prepare the quotation and was unaware of who did. He assumed that BJ had prepared it. Initially, Gobi thought the quotation might not be genuine because it was on EBS’s stationery, and his father, as the director, would likely need to be informed about such works. However, as of 2023, he remains uncertain about its authenticity.

(v)     BJ once asked Gobi to refer friends who would be willing to buy properties in their names and declare bankruptcy if they were unable to pay for the houses. BJ did not specify which properties were involved or the roles of the individuals in this arrangement.

(I) PW24 Zulkarnain Lim Bin Zulkefli[note: 78] (Zulkarnain)

(i)     Zulkarnain knew Sufandi personally by his real name and recognized BJ as "Sufandi’s boss." At a Coffee Bean meeting at Greenwich V, Sufandi and BJ explained to him their plan to sell Limbok Terrace by listing a price on the OTP higher than the actual agreed price between the buyer and the seller so that the bank would approve a larger loan amount than what would have been granted based on the actual transaction value. After the loan was disbursed by the bank based on the inflated OTP price, Sufandi and BJ expected to receive a portion of the funds back from the seller in the form of cashback which Zulkarnain understood could potentially amount to a few hundred thousand dollars.

(ii)     At the same Greenwich V meeting, Zulkarnain was informed by Sufandi and BJ that the seller would receive only 1% of the agreed sale price when the OTP was signed. The downpayment of 19% of the sale price stated on the OTP would not be paid to the seller. Once the bank approved and disbursed the mortgage loan, which would cover 80% of the inflated sale price, the seller would receive the funds directly from the bank. After receiving the bank's disbursement, the seller was required to return a portion of the money to the buyers, namely Sufandi and BJ, in the form of cashback. Following the meeting, Zulkarnain explained the scheme to the seller, who agreed to the arrangement.

(iii)     Sufandi, who corresponded with Zulkarnain using the email address xxxx.350, revealed to Zulkarnain that the Woodgrove Walk property had been purchased from a Malay family where the husband had some medical problems and the wife decided to sell the house using the same method that was explained to him for Limbok Terrace.

Credibility of the Prosecution witnesses

9       A court’s findings as to the credibility of a witness can be based on his demeanour and the internal consistency of his own evidence, or the external consistency between his own evidence and extrinsic evidence (such as the evidence of other witnesses, documentary evidence or exhibits), or some combination of these.[note: 79]

10     Having assessed the testimony and demeanour as well as the conduct of each of the Prosecution witnesses (except the deceased Hamzi) during their respective EIC, XE and RE at the trial and in the light of corroboration by the other Prosecution and/or Defence witnesses, documentary evidence and/or exhibits, I rejected all the Defence contentions that the evidence of Prosecution witnesses are inconsistent and incredible. I agreed with the Prosecution and found that all the Prosecution witnesses who have no apparent motive to lie (as they have not been prosecuted or have already served their sentences for similar or other offences) to be credible and truthful. I accepted their respective testimonies insofar as they are relevant to prove the charges against each of the APs (on which this Court will make the findings of facts in section (J) below) with the immaterial and/or irrelevant inconsistencies in their testimonies as explained below.

Corroboration

11     In terms of corroboration, I agreed with the Prosecution and found as follows:

(a)     PW1 Yeo's evidence regarding price inflation was corroborated by PW3 Adrian which suggests consistency and strengthens the credibility of their accounts about inflating sale prices. Their accounts on the sale of Saraca Terrace and who explained the scheme to inflate the sale price align with Sufandi's CAD statements. Sufandi had stated that Kok first explained the scheme to Adrian and later explained it to Yeo at a meeting at Greenwich V. Yeo’s evidence about the handling of cheques, including receiving post-dated cheques and instructions not to encash them, is consistent with Sufandi’s admissions in his CAD statements. Sufandi admitted that these cheques were given to Yeo to falsely represent that a portion of the sale price had been paid. Furthermore, Yeo's claim of giving $300,000 in cash to Sufandi and Kok is consistent with Sufandi’s admission that the $300,000 was divided among BJ, Kok, and himself. [note: 80] In my view, the consistencies between the accounts of different witnesses and the corroboration of evidence reinforce the case against the APs involved in the fraudulent scheme related to the sale of Saraca Terrace and the manipulation of sale prices.

(b)     PW4 Naseeruddin was a candid and upfront witness whose testimony I found to be credible. His honesty and transparency in describing his role in the Saraca Terrace transaction enhance the reliability of his account. Naseeruddin described being persuaded by Sufandi to be the named buyer for Saraca Terrace, with Sufandi promising him money. He claimed that his income documents submitted to Maybank were forged, and he did not communicate directly with the bank officer. On Sufandi's instructions, he attended the Maybank branch to sign the Mortgage Facility Letter and proceeded to Lutfi Law to sign the Mortgage Instrument. Naseeruddin further testified that he used the forged income documents to purchase a car. These details align with Sufandi's CAD statements, indicating that Sufandi orchestrated the fraudulent transactions and directed Naseeruddin's actions. Sufandi’s CAD statements confirm that he was responsible for communicating with the bank officer and submitting the forged income documents, which were prepared by either BJ or Kok. In my view, the consistency between Naseeruddin's testimony and Sufandi's admissions in his CAD statements supports the credibility of Naseeruddin's account and strengthens the case against the APs involved in the fraudulent activities related to the Saraca Terrace transaction.[note: 81]

(c)     I found no merit in Sufandi’s submissions[note: 82] that Naseeruddin is the real mastermind behind the scheme to defraud Maybank in relation to Saraca Terrace and that Naseeruddin is not a credible witness. Sufandi’s claim that Naseeruddin’s oral evidence is unreliable and inconsistent, and therefore should be disregarded, does not hold up against the trial evidence. I accepted the Prosecution’s submissions[note: 83], which demonstrated that there is no evidence suggesting Naseeruddin masterminded the scheme to cheat Maybank. Instead, the weight of the Prosecution’s evidence, including witness testimonies and documentary evidence, clearly points to a conspiracy involving Sufandi, Kok, and BJ to defraud Maybank as based on the trial evidence, it was clear that:

(i)       Naseeruddin had no dealings whatsoever with the sellers (Yeo and Lim) or their agent (Adrian), but there was extensive and prolonged interactions between the sellers and Sufandi (referred to as "Andi") as well as Kok to discuss the specifics of the sale transaction with no mention of Naseeruddin who had no involvement in the negotiations, discussions, or agreement of the sale.

(ii)       Naseeruddin's minimal interactions with Angela Veronica, limited to Sufandi's instructions and a single visit to Lutfi Law to sign the Mortgage Instrument, highlight his peripheral role in the scheme. On the other hand, Angela Veronica's testimony regarding Kok's proactive role in providing necessary information for the conveyancing process and liaising with Angela Veronica for the BSD payment demonstrates his deeper involvement and active participation in the scheme.

(iii)       Naseeruddin's limited financial benefit, receiving only $40,000 instead of the promised $60,000, contrasts sharply with BJ's substantial gain of $170,000 from the total amount collected by Sufandi and Kok. This stark difference in financial gain highlights Naseeruddin's subordinate position in the scheme and further supports the Prosecution's case that he was merely a dummy robot in BJ's property scam. The promise of an investment opportunity by Sufandi, which led to Naseeruddin applying for a mortgage loan and subsequently being declared bankrupt, further solidifies the narrative of Naseeruddin being manipulated and used by the main conspirators.

(d)     I disagreed with Sufandi’s submissions[note: 84] on the inconsistencies in Naseeruddin’s evidence as I agreed with the Prosecution[note: 85] that his evidence was internally and externally consistent as his evidence was clear that he was promised $60,000 by Sufandi, but was only eventually given $40,000; he did not meet Jefri at the IGB office and only met Jefri in prison in 2015; his knowledge about a UOB loan application is extremely limited as all that he knew was that the outcome of the application was a rejection and did not know anything else, much less how the application was made; and he was initially unaware that forged documents were used for the mortgage application, but he found out subsequently when he requested for a copy from Sufandi to obtain a personal loan and a car loan. Further, it was wrong for Sufandi to submit that Naseeruddin was fully capable of applying loans for himself as the steps in applying for a mortgage loan differs vastly from an application for a personal loan and a car loan and he could not have applied for the personal loan or the car loan until he obtained the income documents from Sufandi.

(e)     PW5 Angela Veronica's testimony that Kok was responsible for paying the BSD is supported by documentary evidence. Kok applied for and obtained a cashier's order for $81,600, payable to the Commissioner of Stamp Duties, on 16 April 2014. The funds for this cashier's order came from the Maybank account of Oasis Realtors & Consultant Pte Ltd, of which Kok is the sole authorized signatory. This evidence established Kok's involvement in the financial transactions related to the purchase of Saraca Terrace. Angela Veronica's testimony that Kok was the main individual she communicated with for the purchase of Saraca Terrace aligned with Sufandi's CAD statements wherein Sufandi stated that Kok was the one who liaised with Lutfi Law for the purchase of Saraca Terrace. Additionally, Naseeruddin's phone number for communication with Maybank (xxxx) matches the number stated in the Maybank Mortgage Loan documents. Sufandi admitted to using the same phone number to communicate with Maybank. [note: 86] In my view, the consistency between Angela Veronica's testimony, Naseeruddin's phone number, Sufandi's CAD statements, and the documentary evidence strengthens the case against Kok and supports the credibility of the Prosecution witnesses' accounts.

(f)     I disagreed with Kok’s submissions[note: 87] that Angela Veronica was not careful and did not follow necessary protocols in handling the conveyancing transaction and her EIC evidence was largely based on assumptions, and as such, little to no weight should be given to Angela Veronica’s testimony. I accepted the Prosecution’s submissions that these attacks on Angela Veronica’s evidence by attacking her character and casting her as an incompetent conveyancing secretary are unfounded for the following reasons:

(i)       In property transactions, the signing of the OTP is typically witnessed by another party who also signs the document as a witness. This witness provides an additional layer of verification for the buyer's signature, negating the need for the conveyancing secretary to conduct a separate verification. Conveyancing secretaries like Angela Veronica are generally responsible for ensuring that the necessary documents are prepared correctly and in accordance with legal requirements. Once the OTP is signed by the buyer and witnessed by another party, the conveyancing secretary's role primarily involves processing the transaction based on the information provided and the signatures witnessed on the document.[note: 88]

(ii)       A Warrant to Act is typically associated with litigation matters where a solicitor is representing a client in court proceedings. It serves as evidence that the solicitor is authorized to act on behalf of the client in those specific legal proceedings.[note: 89] For non-litigation matters such as conveyancing, there is generally no requirement for a Warrant to Act to be signed.[note: 90]

(iii)       Angela Veronica’s evidence regarding Kok's involvement in the sale of Saraca Terrace revealed that she had received specific information from Kok regarding the buyer, completion timeline and financing mode which demonstrates Kok's active role in the transaction. Further, the documents that Angela Veronica received from Kok, including the signed OTP with a 4% cheque and the BSD, further corroborate his involvement. The Lutfi Law file cover that identifies Kok by name and contact details, along with the BSD paid for by a cashier's order from Kok's company, Oasis Realtors, further strengthens the case for his involvement. These objective documentary pieces of evidence align perfectly with Angela Veronica's testimony and paint a consistent picture of Kok's role in the sale of Saraca Terrace.[note: 91]

(iv)       In his EIC, Kok denied having any dealings with Angela Veronica, specifically denying that he referred the transaction to her or arranged for Lutfi Law to act for the buyer. This denial contradicts his previous statements and actions related to the transaction. Contrary to his denial, Kok's position in his Case for the Defence and his interactions with Angela Veronica indicate that he did, in fact, have dealings with her. He accepted that he went to Lutfi Law to hand over the OTP and the 4% cheque, directly contradicting his earlier denial. These inconsistencies between Kok's EIC and his Case for the Defence, as well as his interactions with Angela Veronica, highlight a credibility issue in his defence. It raises questions about the reliability and truthfulness of Kok's testimony and his overall defence strategy. Addressing these inconsistencies is crucial for Kok to maintain any semblance of credibility and to effectively challenge the Prosecution's case against Kok,[note: 92] but he failed to do so.

(g)     The corroboration between the evidence of Hamzi and Rohana that the sale price of Woodgrove Walk was artificially inflated, with a subsequent "cashback" payment to EBS strengthens the credibility of their accounts. Juma'at's first statement about earning a "commission" aligns with Hamzi's account that Haron and Juma'at acted as his agents and received a commission. Rohana's testimony about bargaining down the commission to $7,000 further supports this narrative, showing consistency in the details of the transaction and the roles of the involved parties. The consistency between Hamzi, Rohana, and Juma'at regarding the payment of the 1% Option Fee—whether received directly from Juma'at or Haron—adds to the reliability of their testimonies. The existence of two OTP agreements and the subsequent extraction of $464,000 from Hamzi and Rohana and paid to EBS, align with Sufandi's CAD statements.[note: 93] In my view, the consistency between the testimonies of Hamzi, Rohana, Juma'at, and Sufandi's CAD statements provide strong evidence of fraudulent activities of the APs involved in the sale of Woodgrove Walk, including price inflation, cashback payments, commission payments, and the involvement of agents.

(h)     Both Rajendran and Prasanna confirmed that the 12 September 2014 meeting's purpose was to discuss and provide instructions on how to distribute the proceeds of the house sale. Prasanna's testimony that Haron provided the quotation in P52 and gave instructions on the distribution, including the payment of $464,000 to EBS, directly implicates him in the transaction. The consistency between Rajendran's and Prasanna's evidence suggests that Haron, along with Rohana and Hamzi, played a significant role in the fraudulent distribution of the sale proceeds, including directing substantial payments to EBS.[note: 94]

(i)     Iswandi's claim that he did not communicate with Maybank officers or conveyancing secretaries, except for signing a Letter of Offer, is corroborated by Sufandi's admissions in his CAD statements. This alignment suggests that Iswandi's involvement was minimal, and he did not engage directly with the parties handling the transaction, further supporting his credibility. The evidence provided by Ammar Salim, who corresponded with a specific phone number and email address, and Shirley, who testified that she dealt directly with Sufandi, further reinforces Iswandi's account. Their testimonies confirm that Sufandi was the primary point of contact, not Iswandi, aligning with Iswandi's assertion of his limited role. Iswandi's testimony that he signed the Mortgage Instrument at a law firm in Chinatown is consistent with Sufandi's CAD statements, adding another layer of corroboration that strengthens the reliability of Iswandi's evidence. [note: 95] In my view, the consistency between Iswandi's testimony and the corroborating evidence from other witnesses, combined with Sufandi's admissions in his CAD statements, paints a clear picture that Iswandi was not the key player, which strengthens the case against those APs who were actively involved, particularly Sufandi.

(j)     As pointed out by the Prosecution[note: 96], Zulkarnain's evidence plays a critical role in corroborating the existence of the cashback schemes and in reinforcing the credibility of Sufandi's CAD statements regarding the cashback schemes related to Saraca Terrace, Woodgrove Walk, and Limbok Terrace. Zulkarnain's testimony regarding the cashback schemes for Limbok Terrace aligns with Sufandi's admissions in his CAD statements, providing strong evidence that these schemes were not isolated incidents but part of a broader pattern of fraudulent activity. This consistency bolsters the reliability of both Zulkarnain's and Sufandi's accounts. The specific details provided by Zulkarnain, such as the sellers of Woodgrove Walk being Malay and the husband's medical issues, matched the evidence from other witnesses. This further supports the credibility of Zulkarnain's account, as these consistent details across testimonies indicate a shared and accurate understanding of the events. The similarities between the cashback arrangements for Limbok Terrace and Woodgrove Walk, as described by Zulkarnain, are particularly significant. They suggest that a similar fraudulent scheme was applied across multiple properties, thereby strengthening the case against key players like BJ, Kok, and Sufandi. Zulkarnain's evidence effectively counters the assertions made by BJ's counsel during XE. By directly addressing the claims regarding his alleged collaboration with BJ, Zulkarnain clarifies any misconceptions and reinforces the accuracy of the evidence against BJ, particularly in relation to the cashback schemes.

(k)     I accepted the Prosecution’s submissions[note: 97] that Zulkarnain’s evidence that he was informed that there was a cashback arrangement for Woodgrove Walk and was given a detailed explanation of how there was to be a cashback arrangement for Limbok Terrace, and was told that Limbok Terrace would be transacted in the same manner as Woodgrove Walk should be given full weight under ss 9, 11(b) and 158 EA[note: 98] and/or as similar fact evidence. Zulkarnain’s aforesaid evidence as explained to him by BJ is specifically connected to the issue of whether there was a cashback arrangement for Woodgrove Walk, and whether Sufandi and BJ were involved in the cashback scheme for the property, and is essentially identical to the cashback arrangement described by other Prosecution witnesses for Saraca Terrace and Woodgrove Walk which makes it “highly probable” that the same cashback scheme was also in place for Saraca Terrace and Woodgrove Walk, and BJ was aware of this. As held in Tan Meng Jee v PP [1996] SGCA 34 at [50], the more “similar” the evidence, the more probative the evidence. Zulkarnain’s testimony, being almost identical to the descriptions of the cashback arrangement provided by other witnesses, increases the probability that the same fraudulent scheme was employed across different properties. This similarity adds significant weight to the overall evidence against BJ and other APs involved. Zulkarnain’s testimony also serves as a direct rebuttal to the assertions made by BJ’s counsel during XE. By affirming that Zulkarnain did indeed work with BJ, it strengthens the case against BJ and aligns with the admissions in Sufandi’s CAD statements. Further, under s 158 EA, Zulkarnain’s aforesaid evidence on Limbok Terrace and the cashback arrangement corroborated Sufandi’s CAD statements; evidence of PW1 Yeo and of PW6 Rohana as well as the statements of Hamzi (deceased), all of which are three threads of evidence pointing towards there being a scheme to inflate the price of Saraca Terrace and Woodgrove Walk on the conveyancing documents, and a cashback arrangement for the buyers to receive the proceeds of the higher bank loan obtained with no fear or possibility of collusion as Zulkarnain was not able to recognise Yeo, Lim, Rohana, or Hamzi. In this regard, I disagreed with:

(i)       BJ’s submissions[note: 99] that Zulkanain’s evidence should be rejected as he was called to give similar fact evidence of evidence of what he heard which is hearsay, and what transpired is in relation to another property, the Limbok property, which is not the subject matter of this trial; and

(ii)       Sufandi’s submissions[note: 100] that this Court was wrong during the AH to allow Zulkarnain to testify in court to set out his entire story and no weight should be assigned to Zulkarnain’s evidence as his evidence covers alleged events that transpired regarding the Limbok Property and while BJ and Sufandi have put their cases to Zulkarnain, it would have been necessary to have the evidence of all parties involved in the Limbok Property transaction to fully compare and assess the credibility and weight of Zulkarnain’s evidence against the evidence of other witnesses involved in the Limbok Property, as otherwise it is extremely unsafe to assign any weight to Zulkarnain’s evidence which is similar fact evidence and prejudicial in nature.

(l)     PW9 Wong, the bank officer’s evidence that she received the application form and income documents via email is consistent with Sufandi’s CAD statements.[note: 101]

(m)     The testimony of PW22 Gobikrishna is crucial in establishing the involvement of BJ, Kok, and Sufandi in a property scam conspiracy. According to Gobikrishna, BJ instructed him to recruit individuals willing to serve as "dummy robots"—people who would apply for bank loans to purchase properties but were expected to default on payments, leading to their bankruptcy. This was described as a "property scam." Gobikrishna's testimony is consistent with evidence from other witnesses, such as Sufandi and Naseeruddin. For instance, Sufandi orchestrated a similar scheme involving Naseeruddin, who acted as a "dummy robot" for the Saraca Terrace property. Naseeruddin's role was limited to applying for a mortgage bank loan and signing conveyancing documents, despite lacking the financial means to make payments for the property. As anticipated, when the payments were defaulted, Naseeruddin was declared bankrupt. The alignment of Gobikrishna’s testimony with that of other witnesses bolsters the Prosecution's argument, demonstrating a conspiracy to cheat involving BJ, Kok, and Sufandi. As held at the AH, Gobikrishna's memory was appropriately refreshed according to the procedures outlined in s 161 EA. After reviewing his statements to the CAD, Gobikrishna affirmed their accuracy. Therefore, I agreed with the Prosecution[note: 102] that Gobikrishna's testimony is credible and should be given full weight, as it significantly reinforces the case against BJ and other APs in the property scam conspiracy.

(n)     Kok received $80,000 in cash from BJ, which he then deposited into his personal bank account. From there, Kok withdrew $72,000 and transferred it into the bank account of Oasis Realtors. Following this, Kok purchased a Cashier's Order for $81,600, payable to the Commissioner of Stamp Duties, specifically for the BSD associated with Saraca Terrace. These actions are consistent with Sufandi's CAD statements, in which he mentioned that Kok coordinated with BJ regarding the BSD money. Furthermore, this aligns with the testimony of PW5 Angela Veronica, who indicated that she communicated with Kok regarding the BSD payment. The pattern of transactions involving Kok and BJ clearly suggests a financial link to the purchase of Saraca Terrace.[note: 103] In my view, this connection reinforces the Prosecution's argument that there was a conspiracy involving Kok, BJ, and Sufandi to commit fraud in relation to the Saraca Terrace property.

(o)     I disagreed with Sufandi’s submissions[note: 104] that he had no role in the Woodgrove Walk transaction beyond a mere limited role of recommending the house to Naseeruddin for investment and asking BJ to prepare P52, and his arguments that Shirley’s evidence identifying him as the "Fandi" she dealt with was ambiguous due to her mistaken identification of him during her testimony. I found Shirley's identification of Sufandi to be corroborated by external evidence. Shirley's testimony that it was possible Sufandi was the "Fandi" she dealt with, along with her identification of him via photograph in P68, adds weight to her statement. As pointed out by the Prosecution[note: 105], Shirley's position is reasonable and consistent with that of a truthful witness as the photograph of Sufandi exhibited in P68, which was taken closer to the time Shirley would have interacted with "Fandi," offers a plausible explanation for why she was able to recognize "Fandi" in the photo but not necessarily recognize the person she saw in court. Furthermore, Sufandi’s admissions in his CAD statements[note: 106] that he had been corresponding with Shirley from the beginning and providing instructions to her are consistent with Shirley's account that she dealt with "Fandi." In my view, this combination of corroborative evidence supports the conclusions that Shirley’s identification of Sufandi is credible and reliable and that Sufandi played a role in the Woodgrove Walk transaction beyond the aforesaid mere limited role.

Explanations for inconsistencies in the evidence of the PWs

12     A witness whose testimony is inconsistent does not mean that the witness is lying or should not be believed as it is open to the Court to accept one part of a witness’ testimony and reject the other part by scrutinizing each piece of evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances and there is no requirement for the testimony of a witness to be either believed in its entirety or not at all.[note: 107] Whether an inconsistent witness ought to be believed is a matter of degree and the test is whether the inconsistencies undermine the witness’ evidence in key aspects[note: 108]. In terms of any inconsistencies between or among the Prosecution witnesses and/or with the Defence witnesses, I rejected the Defence contentions and accepted the Prosecution’s submissions and found as follows:

(a)     As regards the following inconsistencies between the testimonies of PW1 Yeo and PW3 Adrian, I found as follows :

(i)       As for the discussions at the Greenwich V meeting, Yeo testified that Sufandi and Kok explained that although the price stated on the OTP would be $2.9 million, Yeo would only receive $2.3 million. Yeo sought Adrian's opinion on this matter, to which Adrian allegedly responded that it was "okay to proceed." However, Adrian testified differently, stating that he was unaware of the discussion at the meeting because he was on a phone call and had stepped out. Adrian further suggested that he suspected the discussion might involve a cashback scheme, but he chose not to get involved. While Yeo testified that he would not have acted against Adrian’s advice, after assessing the evidence, I rejected the submissions[note: 109] of Kok and Sufandi regarding the inconsistency between Yeo and Adrian's accounts of the Greenwich V meeting. I accepted the Prosecution's explanation[note: 110] that Yeo's testimony should be preferred over Adrian's. Yeo's account of the discussion is more credible and should be accepted as the truth of what transpired at the Greenwich V meeting. This conclusion is supported by documentary evidence indicating that 19% of the price stated on the OTP was not received by Yeo. This evidence is consistent with the fact that the 4% and 15% cheques were not encashed and were instead seized by the CAD from Yeo. Adrian's testimony could be interpreted as an attempt to downplay his involvement to avoid implicating himself in an illegal arrangement, which is not in line with the documentary evidence presented. Additionally, Yeo is not a housing agent and therefore has no reason to distance himself and his wife from the transaction to avoid legal trouble, unlike Adrian, who, as a housing agent, would have a motive to do so. Thus, Yeo’s testimony is considered more reliable in this context.

(ii)       Regarding the inconsistency about whether Yeo received the 15% cheque from Adrian, I rejected Sufandi’s and Kok’s submissions.[note: 111] I agreed with the Prosecution's position[note: 112] that this discrepancy is trivial and immaterial as although the cheque was delivered to Yeo, it was never encashed and remained in his possession until it was seized by the CAD. This fact renders the debate over whether Yeo received the cheque inconsequential to the overall case, as it does not affect the substantive issue of the alleged fraud or conspiracy.

(iii)       In relation to the offers made at the KFC meeting, I rejected Sufandi's submissions[note: 113] and agreed with the Prosecution[note: 114] that Adrian and Yeo’s testimonies are factually consistent. Adrian conveyed Kok's offer to Yeo about setting up a company, which Yeo subsequently rejected. While Adrian's testimony is ambiguous about whether he communicated the IOU offer to Yeo, this ambiguity is immaterial. As explained by the Prosecution, all the offers made at the KFC meeting were ultimately rejected, necessitating the scheduling of the Greenwich V meeting. Therefore, any inconsistency regarding the communication of specific offers is irrelevant to the case, as the key point is that none of the offers was accepted.

(iv)       As regards the number of viewings, there is no inconsistency between Adrian's and Yeo's testimonies. Adrian mentioned that there were around 10 viewings, while Yeo testified that "there were not many viewers throughout the 6 months." This statement from Yeo contradicts Sufandi's submissions[note: 115] that Yeo claimed there were no viewings at all. Yeo's comment does not suggest that no viewings occurred; rather, it indicates a relatively low number of viewings, which is not inconsistent with Adrian's account of there being about 10 viewings. In my view, the testimonies are not in conflict and the Prosecution's position[note: 116] on this matter is supported by the evidence.

(b)     As for the inconsistencies between the testimonies of PW1 Yeo and PW2 Lim about Kok's demand for $300,000 and the handling of the 4% and 15% cheques, I found the discrepancies to be minor and not detrimental to the credibility of the witnesses or the Prosecution's case. Yeo testified that Kok demanded $300,000 around the completion date, and he mentioned passing the cash to Kok to Lim but did not provide her with many details to avoid causing her concern. Yeo also stated that he received the 4% and 15% cheques but did not encash them. In contrast, Lim either could not recall or was unaware of these specific details. I agreed with the Prosecution’s explanation[note: 117] that these inconsistencies are minor, given that Yeo's greater involvement in the property sale was evident from both his and Lim's testimonies. Lim admitted that she left the negotiations to her husband and was not fully aware of the details surrounding the sale. Therefore, I found Lim’s lack of recollection or knowledge regarding certain aspects of the transaction to be understandable and reasonable. I rejected Kok's submissions[note: 118] that Yeo and Lim were attempting to distance Lim from the transaction to protect her from liability and that it was unbelievable that Yeo would not have informed Lim, his wife, about such a large cash withdrawal. Given the context and the evidence, I found that the aforesaid inconsistencies did not significantly impact the overall credibility of the testimonies of Yeo and Lim or the Prosecution's case against the APs involved.

(c)     I rejected Sufandi’s submissions[note: 119] that Yeo's statement about taking $1,000 from his safe was inconsistent with Lim's statement that there was no cash in the safe after Chinese New Year. I agreed with the Prosecution[note: 120] that there are no inconsistencies between Yeo's and Lim's evidence. Lim's testimony was that she kept cash in the safe only for Chinese New Year, and she was specifically referring to her own use of the safe, not Yeo's. Lim did not state that there was no cash in the safe in April 2014; her comment was specific to her practice of keeping cash in the safe solely for Chinese New Year. Therefore, any interpretation that Lim claimed there was no cash in the safe at all in April 2014 is unfounded and I found no contradiction between Yeo's and Lim's testimonies regarding the presence of cash in the safe.

(d)     I rejected Kok’s submissions[note: 121] that Yeo’s evidence was inherently incredible based on his assumption that “Naseeruddin bin Allamdin” is Andi’s full name because both are Malays. I agreed with the Prosecution[note: 122] that Yeo's assumption was entirely reasonable. Yeo had dealt with Sufandi as "Andi" without being provided with his full or legal name. Given that Sufandi is Malay, it is reasonable to perceive "Andi" as a nickname or an English name derived from "Naseeruddin bin Allamdin," both of which are Malay-sounding names. Therefore, Yeo's assumption did not undermine the credibility of his evidence.

(e)     I rejected Kok's and Sufandi's submissions[note: 123] that Lim's evidence was inherently incredible. They argued that Lim's lack of knowledge about the inflation or cashback schemes, her inability to recognize Kok in court, and her failure to recall any threats made to her children were implausible, especially considering that Yeo would have likely shared such information with her. I agreed with the Prosecution[note: 124] that the dynamics between Yeo and Lim provide a plausible explanation for these issues. Yeo was more actively involved in the sale process, and Lim trusted him to handle most aspects of it. This division of responsibilities explains why Lim might not have been aware of the cashback or inflation schemes, did not recognize Kok in court, and did not remember any threats made to her children. Yeo’s testimony that he intentionally kept information about the threats from Lim to prevent her from worrying further supports the credibility of Lim's evidence. In my view, if Yeo chose to shield Lim from this information to protect her, it is entirely reasonable that Lim would be unaware of Kok and the threats in question.

(f)     I accepted the Prosecution’s explanation[note: 125] that the inconsistency between PW1 Yeo’s testimony and Sufandi’s CAD statements regarding when Yeo was informed about the cashback requirement is immaterial. Yeo testified that he was informed about the cashback requirement one week before completion, during a visit by Kok to Saraca Terrace, with no such discussion occurring at the Greenwich V meeting. In contrast, Sufandi’s CAD statements indicated that Kok provided a breakdown of the cashback amount during the Greenwich V meeting. The Prosecution’s position is that this inconsistency does not undermine the overall case. Both Yeo and Sufandi testified that a cashback of $300,000 was paid at Saraca Terrace after completion, in the presence of Yeo, Kok and Sufandi. This is supported by documentary evidence showing a withdrawal of $299,000 by Yeo post-completion. The discrepancy in when Yeo was informed about the cashback could be attributed to misunderstanding or misremembering of events, considering the significant time lapse since the incident occurred—two years between Sufandi’s CAD statements and the events in 2014, and more than eight years for Yeo. Given the complexity of the case and the passage of time, it is reasonable that recollections might differ. Therefore, I found the inconsistency regarding the timing of the cashback discussion to be insignificant, especially when weighed against the broader evidence of the cashback transaction’s occurrence. In this regard, I rejected Kok’s submissions[note: 126] that this inconsistency is material and that the Prosecution needed to establish the timing of the cashback to lend credibility to either Sufandi or Yeo as a witness.

(g)     I agreed with the Prosecution's submissions[note: 127] that the inconsistencies between Hamzi's and Rohana's testimonies regarding various details of the property transaction (such as how the OTP was signed, who was present when signing the OTP and what was the selling price and the $464 quotation) can be attributed to their roles, emotional state and the husband-wife relationship dynamics, where Hamzi played a dominant and decision-making role while Rohana followed his lead. Hamzi could recall specific details and provide reasons due to his active role, while Rohana’s lack of memory reflects her passive involvement. Rohana's emotional state, particularly during her testimony some 4 months after her husband's death could also have contributed to her lack of detailed recollection. Her visible distress and emotional breakdown during EIC supported her credibility, indicating the events' personal significance to her. Rohana’s acknowledgment of the transaction being "improper" and her decision to go along with Hamzi's lead aligns with her testimony and further supports her credibility. This consistency, along with Hamzi's admissions during his guilty plea that he agreed to mark-up the sale price and pay a cashback for renovation, as he was financially desperate and the resulting sentence, strengthens the Prosecution’s argument that both witnesses were truthful about their involvement and perspectives on the transaction.

(h)     As regards the inconsistencies between Hamzi's and Rajendran's testimonies, Hamzi provided a detailed account, stating that he informed Rajendran initially that he had not received the $674,500, but later understood that the matter was "settled" after a discussion with Haron. Rajendran assumed the sum had been paid because he would not have proceeded with the transaction if Hamzi and Rohana had not been paid this amount. His recollection was less detailed than Hamzi. I accepted the Prosecution's explanation[note: 128] that the inconsistency lies in the level of detail provided. Hamzi, as the seller and directly affected by the transaction's financial implications, would naturally have a more detailed memory, especially given his financial situation. On the other hand, Rajendran, being an experienced lawyer handling potentially routine transactions, might not have recalled specific details but remembered the broader conclusion that the sellers indicated they had been paid all sums due Neither Hamzi nor Rajendran was lying; instead, their different recollections can be attributed to their roles and the significance of the transaction to them. Hamzi’s account is more detailed due to his direct involvement and the financial stakes. Rajendran’s less detailed recollection is understandable given his professional experience and the routine nature of his work. There is another difference between Hamzi and Rajendran in their accounts regarding the number of meetings with the lawyer. I found this discrepancy to be a minor inconsistency that does not undermine Hamzi’s overall evidence as I agreed with the Prosecution[note: 129] that this inconsistency is not material to the core issues at hand, especially given the explanations provided for the different levels of detail and involvement of Hamzi and Rajendran. In this regard, I rejected Sufandi's arguments[note: 130] that the inconsistency between Hamzi's and Rajendran's testimonies was material and indicative of credibility issues as I found that the differences in their accounts could reasonably be explained by their different roles and perspectives in the transaction and do not undermine their overall credibility.

(i)     As for Sufandi's submissions[note: 131] that Hamzi was inconsistent about the circumstances in which he signed the OTP for the Woodgrove Walk transaction, I accepted the Prosecution’s submissions[note: 132] that there is no inconsistency about who asked Hamzi to sign the OTP as according to the trial evidence, the OTP in Exhibit P34 for Woodgrove Walk was prepared by Haron, who informed Hamzi that the property would be sold for $2.4 million. Juma’at delivered the OTP along with the 1% option fee of $24,000 to Hamzi and Rohana, who then signed the blank OTP exhibited at P34. Rohana testified that she had never seen the OTP exhibited at P38 (which was ultimately submitted to Maybank) and confirmed that the signatures on P38 were not hers or Hamzi’s. As for Sufandi’s arguments[note: 133] that Hamzi was inconsistent about the documents signed at the lawyer's office, I agreed with the Prosecution[note: 134] that any inconsistency regarding the documents signed at the lawyer's office is minor and does not undermine Hamzi’s credibility as a witness.

(j)     Regarding the inconsistency between the testimonies of Sufandi, Iswandi and Naseeruddin on how Iswandi was introduced to the cashback scheme, Iswandi had stated that he was introduced to the cashback scheme by a person named "Bobby," who connected him to "Fandi." "Fandi" then explained the scheme and promised Iswandi $5,000 for his participation. However, Iswandi could not identify Naseeruddin. Naseeruddin could not identify Iswandi and denied introducing Iswandi to Sufandi. Sufandi's CAD statements indicated that he found Iswandi through Naseeruddin. I accepted the Prosecution's explanation[note: 135] that the aforesaid inconsistency regarding how Iswandi was introduced to the cashback scheme is not material to the charges related to the Woodgrove Walk transaction as the key issue is not the manner of introduction but Iswandi's subsequent actions after becoming involved in the scheme. Iswandi’s actions, which align with Sufandi's CAD statements regarding the plan to cheat Maybank, are directly relevant to the charges. The crucial factor is Iswandi's conduct after being introduced to the scheme, which is relevant to the charges to defraud Maybank.

(H)   CREDIBILITY OF EACH OF THE ACCUSED PERSONS (APs) AS A WITNESS AND THEIR RESPECTIVE DEFENCES

13     None of the APs’ written submissions and replies had specifically responded or rebutted the Prosecution’s comprehensive submissions on the issue of their respective credibility as a witness at the trial, other than simply stating or asserting their respective testimonies as credible and true. Having regard to each of the APs’ demeanour and their respective conduct at the trial which revealed each of them to have openly fabricated evidence at the trial, as well as in their CAD statements (save for Sufandi’s statements in P65, P66, P67, P78 and P79 admitted at the AH as part of the Prosecution’s case), and in the light of the objective documentary and testimonial evidence adduced by the Prosecution at the trial, I rejected all the Defence contentions and agreed with the Prosecution’s assessment that all the APs are not truthful witnesses and their respective testimonies given at the trial and/or in their CAD statements (except Sufandi’s statements in P65, P66, P67, P78 and P79) is devoid of credit and must be given no weight. Based on the ASOF, the Notes of Evidence and other relevant documentary evidence adduced at the trial, the relevant salient facts from the testimonies of each of the APs may be summarised as follows[note: 136]:

(a)      Bijabahadur Rai s/o Shree Kantrai[note: 137] (“BJ”)

(i)     In BJ's EIC, he made several key assertions regarding his lack of involvement with the properties at Saraca Terrace and Woodgrove Walk, and his explicit denial of participating in any conspiracy to defraud Maybank. BJ stated he had no involvement with the property at Saraca Terrace. He emphasized that he was not part of any scheme related to this property. BJ claimed that he did not know Naseeruddin and mentioned that his first awareness of Saraca Terrace came when he learned that Sufandi was residing there. BJ acknowledged being aware of the property at Woodgrove Walk, but claimed his knowledge was limited to knowing its address. Similar to his claim regarding Naseeruddin, BJ denied knowing Iswandi.

(ii)     EBS, the entity involved in the quotation for renovation works, is registered at BJ's residential address. BJ is responsible for the “builder portion” of EBS's business, which involves handling any renovation works. BJ was approached by Sufandi to prepare a quotation for works listed from item 1.0 to item 9.0 in the EBS quotation (Exhibit P52). BJ prepared this quotation based on the scope of work provided by Sufandi and the figure of $464,000 in the quotation was BJ’s own estimate, based on the scope of work requested by Sufandi. BJ and Sufandi had a practice of introducing business opportunities or “lobang” to each other. After BJ handed over the quotation to Sufandi, he was informed by Sufandi that $464,000 had cleared in BJ’s bank account. This amount was then used to offset loans that Sufandi owed to BJ. BJ mentioned making personal loans to Sufandi from time to time, including a large loan of $1 million. However, BJ could not recall the exact amount owed at the time the payment of $464,000 was received, only that Sufandi still owed him money after the aforesaid payment. There was no formal paperwork documenting the personal loans BJ made to Sufandi. These loans were personal and did not go through BJ’s licensed moneylending business.

(iii)     BJ denied the veracity of the portions of Sufandi’s CAD statements that implicated and named him as a co-conspirator in the scheme to defraud Maybank and indicated that BJ was involved in using forged documents as part of the fraudulent process. When presented with questions and answers from Sufandi’s statements, BJ categorically stated that the incriminating parts were untrue.

(iv)     I agreed with the Prosecution's position[note: 138] that the quotation prepared by BJ was fabricated and not based on an actual assessment of the renovation work required at Woodgrove Walk. The quotation prepared by BJ which stated a total of $464,000 for renovation works was not grounded in any real assessment or understanding of the renovation needs at Woodgrove Walk, but appeared to have been created solely to justify a specific financial transaction—namely, the payment of $464,000 from Hamzi and Rohana to EBS. BJ admitted during XE that he had never met the prospective clients (Hamzi and Rohana) nor visited the Woodgrove Walk site. Without visiting the site, BJ would not have been able to assess critical factors necessary for an accurate quotation, such as the site's condition, precise measurements, or the specific renovation requirements. Given BJ’s lack of firsthand knowledge about the site, it would have been impossible for him to prepare a remotely accurate quotation. In my view, BJ’s lack of site inspection means he would not have known if the property conditions were suitable for the proposed work or the actual scope and costs associated with such renovations and this underscores the fabricated nature of the document.

(v)     The evasiveness and inability of BJ to provide a coherent basis for the quantities and unit rates listed in the quotation further substantiate the Prosecution's argument that the quotation was fabricated and intended to deceive. During XE, BJ demonstrated evasiveness and provided implausible explanations regarding the figures and quantities in the quotation. BJ’s answers during XE were absurd based on two examples cited by the Prosecution[note: 139] relating to item 2(a) and item 3(d) in the quotation. When questioned about the quantity listed for item 2(a) (the vertical green wall), BJ avoided giving a direct answer. When pressed further, his only explanation was that he had "googled how to construct a vertical green wall." This response lacked specificity and did not explain how he arrived at the specific figure of 1,200 square meters stated in the quotation (P52). Another example in item 3(d) of the quotation further illustrates BJ's unreliable estimates. He claimed that the quantity in item 3(d) was "based on a lump sum, based on Woodgrove Walk house area." However, when asked how he knew the house area without ever visiting Woodgrove Walk, BJ initially suggested that he used "Google Earth." He then quickly retracted this statement and suggested that he might have used his own network to estimate the area, but he refused to commit to a definitive answer. In my view, this inconsistent and shifting testimony further undermines BJ’s credibility and suggests that the figures were not based on any real or accurate assessment. The lack of a clear basis for the quantities listed in the quotation indicates that the figures were likely exaggerated or fabricated to inflate the total cost of the renovation project. As shown in the Prosecution’s table[note: 140] reproduced below, BJ’s quotation is replete with calculation errors which render it singularly unfit for purpose, as an estimate of the cost of renovation works as the whole objective was to end up with the figure of $464,000 at the bottom, regardless of whether the line items added up to this amount or not.

Item no.

Quantity

Unit Rate

Correct Amount

Amount in P52

2(a)

1,200

$500

$600,000

Nil

2(b)

1,050

$300

$315,000

$35,000

2I

1,500

$8

$12,000

$17,000

2(d)

200

$80

$16,000

$17,500

2I

1,200

$500

$600,000

$61,000

3I

500

$80

$40,000

$42,000

3(d)

3,800

$600

$2.28 million

$71,000

Total

-

-

More than $3.7 million

$464,000



(vi)     The Prosecution highlighted a major discrepancy in item 3(d) of the quotation.[note: 141] The unit rate quoted was $600 per square meter for a quantity of 3,800 square meters. This should result in a total amount of $2.28 million (3,800 sqm x $600 per sqm). However, the total amount quoted in the document was $71,000, which is grossly inaccurate given the aforesaid unit rate and quantity specified. During XE, BJ refused to acknowledge this apparent calculation error. Instead of admitting the mistake or providing a reasonable explanation, BJ was evasive and attempted to deflect the issue and his absurd explanation that the quoted amount of $71,000 was a "lump sum estimate based on Woodgrove Walk house area" contradicted the initially specified unit rate and quantity. In my view, BJ’s refusal to address the error directly raises concerns about his credibility and suggests a deliberate effort to avoid revealing the fraudulent nature of the quotation.

(vii)     Based on the evidence highlighted by the Prosecution, I rejected BJ’s explanations regarding the quotation in P52. I agreed with the Prosecution[note: 142] that P52 is a vague, lump sum quotation that lacks a credible basis and was not grounded in any actual assessment or calculation. The document contains no less than 17 specific line items, categorized into nine different categories. For several of these items, BJ quoted an exact quantity with specific measurements (such as square meters, numbers, or cubic meters) and included a unit rate. However, BJ was unable to provide any explanation for how these quantities or unit rates were derived, which, in my view, strongly suggests that he simply fabricated them.

(viii)    I rejected BJ’s submissions[note: 143] that P52 is a genuine document on which he expected the owner to negotiate before work commenced and that the $464,000 BJ received was merely repayment of loans owed by Sufandi, not a cashback payment from the sale of Woodgrove Walk. As pointed out by the Prosecution[note: 144], BJ did not undertake any preparatory work before creating the quotation. He did not meet with the owners of Woodgrove Walk, nor did he visit the property to assess its condition or determine the scope of renovation work required. Further, BJ's evasive answers when confronted with objective evidence during XE cast serious doubt on his credibility. When questioned about the basis for the figures in P52, BJ was unable to provide a clear or consistent explanation. The summation of the line items in the quotation, which resulted in an absurdly inflated total exceeding $3.7 million, further underscores the document's unreliability and suggests it was not meant to serve as a genuine estimate. The sheer excess of this amount, especially when compared to the purported renovation scope, highlights the fabricated nature of the document. The primary purpose of P52 was to justify and facilitate the payment of a $464,000 cashback to BJ, rather than to provide an accurate or reliable estimate for actual renovation work. The evidence supports the conclusion that P52 was concocted to create the appearance of a legitimate transaction while disguising the fraudulent nature of the payment involved. Therefore, I found that BJ’s explanations regarding P52 are not credible, and the Prosecution’s argument that the document was fabricated to facilitate a fraudulent transaction is well-founded.

(ix)     I accepted the Prosecution’s submissions[note: 145] that the quotation prepared by BJ was fake, which is consistent with Sufandi’s evidence where during XE, Sufandi admitted that there was never any intention to perform renovation work at Woodgrove Walk when he stated : “There’s no renovation, what. Did I say---I---I never said about renovation. I just say that payment must have third-party to a company. I never said that, their son, they want to do renovation.” Sufandi also acknowledged that the quotation was merely a device to facilitate the payment to EBS and admitted that it was "fake" with no possibility of being used for an actual renovation project at Woodgrove Walk. He explained that this was why the quotation contained numerous errors—it was prepared without any genuine intent to undertake renovation work at the property. However, Sufandi contradicted himself during RE the following day, asserting that: “The quotation is not fake, it’s a real quotation. It’s … requested by Mr. Rabu to renovate the house, because Rabu claims that the house is in need for renovation to sell the house at the higher price.”[note: 146] This starkly opposing position was presented without any explanation by Sufandi for his sudden reversal. On this issue, I completely rejected Sufandi’s evidence given during his RE as his abrupt change in stance, without any justification or reason, severely undermines the credibility of his testimony. The lack of consistency and the absence of a plausible explanation for his about-turn suggest that his RE evidence is unreliable. Therefore, I agreed with the Prosecution’s submission that the quotation was fabricated to facilitate a fraudulent transaction rather than to reflect a genuine intent to carry out renovation work at Woodgrove Walk.

(x)     BJ's failure to mention that the $464,000 payment was a repayment from Sufandi in his CAD statements raises serious suspicions about his transparency and honesty. This omission is particularly significant given the subsequent revelation during the trial about the actual nature of the payment. BJ's inconsistent statements regarding whether he conducted any research after his initial interview with the CAD further cast doubt on the credibility of his testimony. Initially, BJ claimed he had conducted research to understand the transaction better, but he later contradicted himself in his second statement to the CAD by denying any further research. I agreed with the Prosecution[note: 147] that the inexorable inference is that BJ's explanation of the $464,000 payment being related to a legitimate job quoted by the builder's side of his business is an afterthought, fabricated to rationalize the cashback payment from Hamzi and Rohana to BJ.

(xi)     While it is correct for BJ to argue that the only evidence directly implicating him in the conspiracy comes from Sufandi’s CAD statements, and that the testimonies of the Prosecution’s witnesses (such as the sellers, the buyer, the agents, the conveyancing secretary, or the bankers) do not directly implicate him[note: 148], I agreed with the Prosecution's position[note: 149] that this absence of direct implication was by design. BJ’s role was deliberately orchestrated to remain behind the scenes, thereby limiting his exposure and reducing the risk of being identified by any of the witnesses as the mastermind and financier of the conspiracy. BJ was effectively pulling the strings from the shadows, running the scheme covertly while directing Sufandi and Kok and financing the fraudulent activities. According to Sufandi, BJ was the one who taught him the mechanics of the cashback scheme and was responsible for deciding on the distribution of the $300,000 cashback obtained from Yeo. Sufandi stated that BJ allocated $50,000 to him, of which $40,000 was subsequently passed to Naseeruddin. Sufandi also implicated BJ as the financier of the conspiracy involving Saraca Terrace, stating that BJ provided the 1% option fee in cash and funded the BSD. This account is corroborated by the bank statements from Kok's account and Oasis Realtors’ account, which showed that Kok received $80,000 in cash, deposited it into his personal bank account, withdrew $72,000, and then deposited it into Oasis Realtors' account, from which the BSD was paid using a cashier’s order. Furthermore, Gobikrishna's testimony about how BJ wanted to execute a "property scam" involving an individual acting as a "dummy robot" to obtain a bank loan and subsequently declare bankruptcy also supports Sufandi's account of the cashback scheme taught by BJ. Naseeruddin, who applied for the mortgage bank loan for Saraca Terrace, defaulted on the loan, and was later declared bankrupt, fits the profile of the "dummy robot" BJ sought for this scheme. Thus, as pointed out by the Prosecution, it is not surprising that BJ was not directly identified by any of the Prosecution witnesses. The way the scheme was devised allowed BJ to remain in the shadows as the mastermind, orchestrating the fraudulent activities from behind the scenes while keeping his involvement concealed. Sufandi and Kok (for Saraca Terrace only) , who were more visibly engaged in the scheme, were the ones seen by others, thus shielding BJ from direct exposure.

(xii)     I accepted the Prosecution’s submissions[note: 150] that BJ’s claims of lack of involvement in the conspiracies related to Saraca Terrace and Woodgrove Walk were contradicted by the testimonies of Gobikrishna and Zulkarnain, and BJ failed to effectively counter or deny their evidence. Gobikrishna testified that BJ admitted to being involved in a scam and asked him to find individuals to act as "dummy robots" who would buy a house and declare bankruptcy if they could not repay the loan. This aligns with the experiences of Naseeruddin and Iswandi, as well as Sufandi’s account of the conspiracy in his CAD statements. BJ did not challenge Gobikrishna’s testimony, nor did he refute Gobikrishna’s claim that BJ asked him to prepare a quotation for Saraca Terrace intended to secure a loan. Similarly, Zulkarnain testified about a personal meeting with BJ, during which BJ discussed a conspiracy to inflate the price of Limbok Terrace and obtain a cashback from the seller. Zulkarnain also mentioned that Woodgrove Walk was purchased using the same fraudulent method. BJ did not cross-examine Zulkarnain on these points or address why Zulkarnain might be providing false evidence against him. In my view, BJ’s failure to contest these testimonies or provide explanations for the contradictions significantly undermines his credibility and supports the Prosecution's case regarding his involvement in the conspiracies.

(xiii)    Based on the trial evidence, I agreed with the Prosecution[note: 151] that BJ’s claims of non-involvement in the Saraca Terrace and Woodgrove Walk transactions are entirely untrue. The credibility of BJ's testimony is seriously undermined by Sufandi's CAD statements in P65, P66, P67, P78, and P79 wherein Sufandi had detailed BJ's role in orchestrating the scheme to defraud Maybank, portraying BJ as the mastermind who financed critical payments, such as the 1% option fee and the BSD. Additionally, Sufandi indicated that BJ received the lion’s share of the profit through the cashbacks paid by the sellers. In my view, the aforesaid Sufandi’s CAD statements strongly suggest that BJ was indeed the central figure in the fraudulent activities, contrary to his claims of ignorance and non-involvement.

(xiv)     Given BJ's failure to specifically address or rebut the Prosecution’s comprehensive submissions regarding his credibility, I found him not to be a credible or reliable witness. I rejected BJ's claims about his non-involvement in the Saraca Terrace and Woodgrove Walk transactions, as well as his defence, which I found to be untruthful and self-serving. I also rejected BJ’s evidence that sought to exonerate himself or any of the other APs from the charges against them. Specifically, I dismissed BJ’s arguments[note: 152] that it was unsafe to rely on Sufandi’s aforesaid CAD statements to convict him since PW1 Yeo, PW3 Adrian, PW4 Naseeruddin, and PW5 Angela Veronica either could not or did not identify BJ, and the oral testimonies of the other 4 APs also made no mention of BJ.

(b)      Kok Chiew Leong[note: 153] (“Kok”)

(i)     Kok's involvement in the Saraca Terrace transaction was multifaceted. He was asked by Sufandi to leverage his communication skills for negotiating a lower price for the property, given his proficiency in English and his ability to interact with Chinese parties. Despite a promise of an "ang pow," Kok did not receive any payment for his efforts in these negotiations. Kok participated in a key meeting at Greenwich V with Sufandi, Yeo, and Adrian, where Kok was involved in the discussions and negotiation process. Following this, Sufandi requested Kok to sign as the buyer's witness on the OTP, a task carried out at Gurdaib Singh's law firm, where Sufandi was employed. Additionally, Sufandi provided Kok with $81,600 in cash and instructed him to use it to pay the BSD. Kok agreed to assist with this payment, under the impression that Sufandi needed help due to being short-handed.

(ii)     Kok's defence against the allegations of involvement in the conspiracy to defraud Maybank centres on a series of specific denials. Kok denied any involvement in negotiating with PW1 Yeo and PW3 Adrian to inflate the price stated on the conveyancing documents. He denied dealing with BJ for the purchase of Saraca Terrace or having any knowledge of BJ's involvement in the transaction. Kok refuted the claim that he took $300,000 from PW1 Yeo. He denied referring the transaction to PW5 Angela Veronica or acting as the agent representing the buyer. Kok denied arranging for Lutfi Law to act for the buyer and claimed not to have liaised with or submitted anything to Lutfi Law. He stated he did not know PW4 Naseeruddin personally, nor did he deal with him for the purchase of Saraca Terrace. He also denied meeting Sufandi and Naseeruddin outside Saraca Terrace. Kok denied any involvement in the forgery of Naseeruddin's income documents. While acknowledging that his name and contact details are on the conveyancing file, Kok claimed not to understand why they are there. Kok asserts that the CAD statements made by Sufandi implicating him are fabrications, framing his defence around these specific denials.

(iii)     As there were no specific responses or rebuttals by Kok of the Prosecution’s comprehensive submissions on his credibility as a witness, I rejected Kok’s bare submissions[note: 154] that Kok was a truthful witness as his evidence on the stand was consistent, even in the face of intense cross-examination, and his testimony was largely consistent with his statements and any discrepancies were minor and did not substantively go towards the making out of the alleged offences. I agreed with the Prosecution[note: 155] that Kok is an untruthful witness who tailored his evidence in response to information revealed to him and his version of events is also internally inconsistent and ridden with lies based on his conduct as follows:

(1)       Kok deliberately misled the Investigating Officer (IO) and tailored his statements in response to the evidence presented. Kok initially denied any involvement in negotiating the sale price of Saraca Terrace and claimed not to know the purchase price. He also denied knowing Yeo, despite evidence showing that he had met with Yeo to discuss the sale price. Kok’s involvement was gradually revealed only after being confronted with evidence, such as Yeo’s identification of him. This piecemeal admission suggested that Kok was attempting to obscure his true level of involvement until it became untenable to continue denying it.[note: 156]

(2)       During XE, Kok attempted to justify his earlier lies in court by providing seemingly absurd explanations that contradicted his previous testimony. Kok's claim that he was unaware of the investigation’s nature and was concerned about breaching Council for Estate Agencies (CEA) regulations did not align with the clear information provided by the CAD at the outset of each statement that the investigation's focus was on a Penal Code offence. Kok had not previously mentioned concerns about CEA regulations in his earlier testimony. As pointed out by the Prosecution, Kok's belief that he had not committed any wrongdoing in negotiating the price should have logically led him to disclose his involvement rather than conceal it. [note: 157] In my view, the lack of a clear rationale for why Kok would hide his actions if he believed they were legitimate further undermined his explanations.

(3)       Kok only admitted to paying the BSD for Saraca Terrace after the IO presented concrete documentary evidence showing that the payment was made using a cashier's order from Kok’s company, Oasis Realtors. This indicates that Kok was initially reluctant to disclose this information. Kok’s admission came only after being confronted with undeniable evidence suggests that he was deliberately withholding information about his involvement. As pointed out by the Prosecution, this behaviour supports the idea that Kok was not initially forthcoming and only provided information when it became impossible to deny due to the irrefutable proof. [note: 158]

(4)       The Prosecution highlighted Kok's inconsistency regarding his memory of paying the BSD for Saraca Terrace. Kok’s ability to recall specific details during his testimony in 2023, including interactions with Sufandi, the signing of the OTP, and the BSD payment, contrasts sharply with his claim of forgetfulness when questioned by the CAD in 2016. Given Kok’s detailed recollection of the events in question, his claim of forgetting the BSD payment which was a significant financial transaction, appears implausible. As pointed out by the Prosecution, if Kok could remember other specific details, it is unlikely that he would have forgotten such a crucial part of the transaction. [note: 159] In my view, the inconsistency between Kok’s detailed account during his EIC and his claim of forgetfulness significantly undermines his credibility as it suggests that Kok's failure to remember the BSD payment may have been a deliberate attempt to evade responsibility or obscure his involvement.

(5)       Kok’s shifting testimony regarding the cash received and the payment of the BSD raises significant issues regarding his credibility. Kok initially claimed to have received exactly $81,600 in cash from Sufandi and used it to pay the BSD. When confronted with bank statements showing a $72,000 withdrawal and subsequent transactions, Kok changed his account, expressing uncertainty about whether the amount was cash or a bank transfer. The evidence shows that Kok withdrew $72,000 from his personal bank account, which was then deposited into Oasis Realtors' account and used to obtain a cashier’s order for $81,600. Kok's claim that the IO refreshed his memory by prompting him with figures, despite his prior statement that he had not read the statements, contradicts his earlier assertions. Kok’s statements to the IO did not include information about receiving cash from Sufandi at Gurdaib Singh’s law firm. Even after being prompted with figures, he still claimed he could not remember where he obtained the money to pay the BSD. His failure to mention this detail initially, and his subsequent contradictory claims, further point to an attempt to obfuscate his true involvement. [note: 160] In my view, these inconsistencies, combined with Kok’s attempt to fabricate or manipulate his testimony when confronted with evidence, seriously undermine his credibility as a witness.

(iv)     Kok’s inconsistent statements about whether he was promised a reward further undermine his credibility. Kok initially denied being promised any reward or fee for his assistance during his interview with the IO. During his court testimony, Kok stated that he was promised an ang pow for negotiating a lower sale price. When questioned about the inconsistency, Kok’s response—that if Sufandi had included chocolates in the ang pow, he would still accept it as a reward—was both illogical and unconvincing. This response suggests that Kok may have been trying to downplay or obscure the nature of the promised reward, rather than providing a coherent explanation.[note: 161] In my view, the discrepancy between Kok’s initial denial and his later admission, combined with the absurd justification provided during XE, undermines his overall credibility.

(v)     Kok claimed that he signed the OTP on 16 April 2014, when Sufandi asked him to do so. However, as pointed out by the Prosecution, the OTP would have expired on 26 March 2014 and by 16 April 2014, the OTP would no longer have been valid, making it impossible for Kok to have signed it as a witness on that date. [note: 162] In my view, the contradiction regarding the timing of the OTP signing significantly undermines Kok's credibility as a witness, reinforcing the conclusion that his testimony is not trustworthy.

(vi)     I rejected both Kok's and Sufandi's submissions[note: 163] that Kok played only a limited role in the sale of Saraca Terrace. Their assertion that Kok's involvement was merely to assist in negotiating the purchase price, due to a shared ethnic background with the seller, or to do Sufandi a favour by paying the stamp duty with cash provided by Sufandi, or to help with a dispute at Saraca Terrace after completion, is contradicted by the evidence from three key Prosecution witnesses. These witnesses presented a compelling case that Kok's role was much more significant and directly tied to the alleged conspiracy. The fact that Kok assisted in negotiations with the seller because both were Chinese does not necessarily limit his involvement as this ethnic connection does not negate the fact that he played a significant role in the transaction. The testimony from both Yeo and Adrian demonstrated that Kok was actively involved in negotiating the sale terms for Saraca Terrace. Both witnesses described how Kok made proposals to Yeo for the sale price stated on the OTP to be higher than the actual agreed price, with an arrangement for a cashback to be provided post-completion. This suggests Kok was not merely facilitating negotiations due to a shared ethnic connection but was deeply involved in structuring the deal in a way that facilitated the fraudulent scheme. Yeo's testimony further indicated that Kok demanded and received $300,000 in cash from him after the completion of the sale. The fact that Kok received such a substantial amount of money from Yeo post-completion indicates his active role in the conspiracy and contradicts his and Sufandi's claims of limited involvement. Angela Veronica's testimony reinforced Kok's significant involvement. She stated that she liaised with Kok throughout the sale process and that Kok effectively handled all arrangements on behalf of the buyer. This level of involvement goes beyond merely assisting with negotiations or logistical matters; it points to Kok being a central figure in managing and orchestrating the transaction. Kok failed to provide any reasonable explanation or rebuttal to the detailed evidence provided by these three Prosecution witnesses. Instead, he chose to ignore their testimonies, which implicated him in the fraudulent activities.[note: 164] In my view, the overall evidence from Yeo, Adrian, and Angela Veronica paints a clear picture of Kok’s significant and active participation in the Saraca Terrace transaction, contradicting his and Sufandi's claims of a limited role and the aforesaid evidence supports the Prosecution's case that Kok was involved in the conspiracy to defraud, rather than merely playing a peripheral or favour-based role.

(vii)     I rejected Kok's arguments[note: 165] that the Prosecution failed to adduce evidence on how the documents were forged since Tan Poh Geok was unable to state who had forged the documents; Sufandi claimed that he lied in his statement about BJ and Kok forging the documents; and CAD did not seize any devices to investigate how the forgery occurred. I agreed with the Prosecution[note: 166] that Kok’s aforesaid arguments are irrelevant to the charges at hand as the primary focus of the charges against the APs is not on the act or method of forgery itself but rather on the conspiracy to cheat and conspiracy to use as genuine forged income documents. The charges pertain to their involvement in a scheme to defraud, rather than the technical details of how the forgeries were produced. Furthermore, Sufandi's CAD statements[note: 167], which were admitted into evidence during the AH, directly implicated BJ or Kok as been responsible for forging the income documents. These statements provide sufficient grounds to infer Kok's involvement in the conspiracy, regardless of the exact process by which the documents were forged or the specific tools used. The inability of Tan Poh Geok to identify the person who forged the documents does not exonerate Kok, as the charge centres around his participation in the conspiracy rather than the physical act of forgery. Similarly, the absence of devices seized by CAD for forensic examination does not undermine the conspiracy charges, as the evidence against Kok comes from witness testimonies and circumstantial evidence rather than direct forensic proof of forgery. In my view, Kok's defence on the basis that the Prosecution has not proved the act or method of forgery is misconceived as the charges focus on the conspiracy to cheat and use of forged documents as genuine, and the trial evidence is sufficient to establish his involvement in the fraudulent scheme.

(viii)    I accepted the Prosecution’s submissions[note: 168] that Kok’s defence contained glaring inconsistencies on material aspects of the case which are material because they go towards Kok’s involvement in Saraca Terrace as he had tailored his evidence to such an extent that he was unable to keep his story straight as follows:

(1)       During his EIC, Kok initially denied having any interactions with Lutfi Law or submitting any documents to them. This claim directly contradicted the case presented by his counsel during the XE of PW5 Angela Veronica, as well as the statements made in the Case for the Defence (CFD) filed on Kok's behalf. During XE of PW5 Angela Veronica, Kok’s counsel suggested that Kok had indeed gone to Lutfi Law to hand over the OTP and the 4% cheque, directly implying Kok's involvement in these transactions. The CFD further confirmed this involvement, stating that Kok was instructed by Sufandi to pass the OTP to Lutfi Law and that Kok acted accordingly. These statements directly conflict with Kok’s denial during his EIC that he had any dealings with Lutfi Law or submitted any documents there. When confronted with these glaring inconsistencies, Kok's responses were evasive and deflective. Instead of addressing the contradictions head-on, Kok attempted to downplay them by suggesting that the statements made by his counsel during XE were merely hypothetical questions posed to PW5 Angela Veronica. However, this assertion was clearly inconsistent with the documented statements shown to him, further highlighting his reluctance to confront the discrepancies in his testimony. Regarding the inconsistencies in his CFD, Kok provided a series of conflicting explanations, none of which was satisfactory or credible. He first claimed that he had not seen the CFD at all, then shifted to suggesting that he might not have read it properly. Later, he stated that the specific sentence in question was unfamiliar to him and might have been forgotten due to memory lapses. Finally, during RE, Kok attempted to attribute the inconsistency to a miscommunication between himself and his counsel. These contradictory responses demonstrate a lack of reliability and honesty in Kok's testimony concerning his dealings with PW5 Angela Veronica and the submission of documents to Lutfi Law.[note: 169] In my view, Kok's inconsistent and evasive responses undermine his credibility as a witness and suggest that he may have been attempting to obscure the truth regarding his involvement in the conspiracy and transactions at Lutfi Law.

(2)       Initially, during his EIC, Kok denied knowing PW4 Naseeruddin personally and also denied ever meeting him alongside Sufandi outside Saraca Terrace. However, this position was contradicted during the XE of PW4 Naseeruddin. Kok's counsel put forward a suggestion that Kok had, in fact, gone to Saraca Terrace specifically to appease Naseeruddin. The assertion made by his counsel during XE indicates that Kok was involved in a situation where he needed to calm or negotiate with Naseeruddin, which would logically require some form of prior knowledge or relationship. When confronted with this inconsistency in his testimony, Kok provided several nonsensical and conflicting explanations. He suggested that he may have met PW4 Naseeruddin at Saraca Terrace, but only speculated about this possibility after hearing Naseeruddin's testimony, which he claimed "refreshed" his memory. Additionally, during RE, Kok further contradicted himself by stating that he had deduced that PW4 Naseeruddin must have been the individual he encountered outside Saraca Terrace. These inconsistent and speculative explanations lack credibility and suggest that Kok was attempting to fabricate or manipulate his testimony to align with the evidence presented against him.[note: 170] In my view, Kok's pattern of providing inconsistent and conflicting statements when faced with contradictory evidence reveals a tendency to tailor his testimony to fit the circumstances, rather than providing a truthful and consistent account of events and raise significant doubts about the veracity of Kok's testimony and suggest that he may have been deliberately misleading the court to distance himself from the conspiracy and any involvement with PW4 Naseeruddin.

(ix)     Based on the inconsistencies and contradictions highlighted by the Prosecution in Kok's testimony, I agreed with the Prosecution[note: 171] and found that Kok is not a credible or reliable witness. His efforts to downplay his involvement in the Saraca Terrace transaction, along with a consistent pattern of only admitting his involvement when directly confronted with incriminating evidence, significantly undermine his credibility. Furthermore, Kok's defence is fraught with internal inconsistencies, which he fails to address adequately. His explanations for these inconsistencies are inadequate, further detracting from his reliability as a witness. In my view, the overall pattern of Kok's behaviour during the trial—characterized by selective admissions and evasion when faced with contradictory evidence—demonstrates a clear lack of candour. His inconsistent statements regarding his dealings with the other parties involved, his knowledge and involvement in the transaction, and his recollections of events all suggest a deliberate attempt to mislead. I found that the glaring material inconsistencies within Kok's defence, along with his overall pattern of behaviour when testifying at the trial, undermine his credibility as a witness and are also detrimental and fatal to his defence.

(x)     Hence, I totally rejected Kok’s evidence given at the trial regarding his involvement in the Saraca Terrace transaction and found his defence based on the aforementioned evidence to be untruthful and self-serving. I also rejected any portion of Kok’s evidence that sought to exculpate himself and/or any of the other co-APs from the respective charges preferred against them. Specifically, I dismissed Kok’s defence of denial, in which he claimed that he did not engage in any conspiracy or have any knowledge of a conspiracy involving BJ and/or Sufandi; that he had no knowledge that PW4 Naseeruddin’s IRAS Notice of Assessment (NOA) and CPF statements had been forged; and that he played no part in the submission of PW4 Naseeruddin’s IRAS NOA and CPF statements to Maybank. I further disagreed with Kok’s submissions that his role was merely to assist in negotiating the purchase price with the seller; to do Sufandi a favour by paying the stamp duty on Sufandi’s behalf; and to assist with a dispute at 35 Saraca Terrace after the sale of the property had been completed at Sufandi's request. The trial evidence demonstrated that Kok’s involvement was more substantial and integral to the conspiratorial actions, contradicting his claims of limited participation. In my view, Kok’s attempts to portray his actions as innocuous and merely helpful gestures failed to account for the broader context and the evidence pointing to his more significant role in the fraudulent scheme.

(c)      Sufandi bin Ahmad[note: 172] (“Sufandi”)

(i)     In his EIC in DE-14, Sufandi attempted to shift the blame onto PW4 Naseeruddin, suggesting that Naseeruddin was responsible for orchestrating the frauds related to the properties at Saraca Terrace and Woodgrove Walk. Sufandi testified that in 2014, Naseeruddin expressed an interest in purchasing a property for investment purposes, with the intention of renting it out to generate rental income. Sufandi offered to assist Naseeruddin in finding a suitable property that matched his budget and investment criteria. After some consideration, Sufandi recommended the property at 35 Saraca Terrace, which he claimed was both within Naseeruddin's budget and met his requirements for an investment property. Sufandi then allegedly brought Kok into the process, tasking him with negotiating the sale price with the sellers of Saraca Terrace. Sufandi testified that he facilitated the transaction by issuing cheques for 1%, 4%, and 15% of the property's purchase price. He claimed that these cheques were issued on behalf of Naseeruddin and that Naseeruddin had reimbursed him with the equivalent amounts in cash. Sufandi also sought to distance himself from any direct involvement in the fraudulent submission of loan documents to Maybank, asserting that Naseeruddin handled all aspects of the loan paperwork on his own.

(ii)     In the case of Woodgrove Walk, following the purchase of Saraca Terrace, Naseeruddin expressed an interest in acquiring another property. Sufandi recommended Woodgrove Walk as a suitable investment. However, Sufandi denied having any direct knowledge of how the deal for Woodgrove Walk was finalized. Sufandi provided an account of how the EBS quotation in document P52 was prepared. According to Sufandi, he had a relationship with Haji Rabu, who was in the food catering business. Sufandi had engaged Haji Rabu's services for various weddings he organized. Over time, Haji Rabu encountered cash flow problems and accrued a substantial debt to Sufandi, amounting to between $400,000 and $500,000. Haji Rabu informed Sufandi that his son, Hamzi, was planning to sell the Woodgrove Walk property. Haji Rabu assured Sufandi that he would repay his debt from the sale proceeds of Woodgrove Walk. To facilitate this repayment, Haji Rabu proposed structuring the repayment as "an undertaking to pay for a renovation package" for Woodgrove Walk, which would appear legitimate on paper. Sufandi agreed to this arrangement. Subsequently, Sufandi requested BJ to prepare a quotation for $464,000, which was documented in P52. This quotation was then submitted to Hamzi's law firm, so that the $464,000 could be deducted directly from the sale proceeds of Woodgrove Walk and paid to EBS. The payment of $464,000 was intended to serve two purposes: firstly, as repayment for the loans that Sufandi had extended to Haji Rabu, and secondly, to cover sums owed by Sufandi to BJ.

(iii)     Regarding his confessions to the CAD, Sufandi claimed that by June 2016, he owed BJ over $300,000, a debt he had not repaid. Under pressure from BJ, who had threatened to sue him over the unpaid amount, Sufandi stated that he decided to frame BJ as the mastermind behind the frauds committed during the sales of Saraca Terrace and Woodgrove Walk.

(iv)     Sufandi's explanation for his failure to confront Naseeruddin in court and his decision not to reveal Naseeruddin’s involvement to the CAD is that he feared for his own safety and that of his family. To substantiate this claim, Sufandi presented two Facebook Messenger chat logs between himself and Naseeruddin as evidence (DE15 and DE16), along with a translated version (DE23).

(v)     I agreed with the Prosecution[note: 173] that Sufandi’s account of the events in DE-14, was exposed during XE to be an afterthought, fabricated and was untrue as the contents of DE-14 are completely contradicted by Sufandi’s CAD statements in P65, P66, P67, P78 and P79. Sufandi's inability to provide a credible explanation for these inconsistencies further weakened his case. His suggestion that the similarities between his statements and evidence of 4 unrelated Prosecution witnesses in court were merely coincidental lacks plausibility, especially considering the number of witnesses involved and the specific details of the discrepancies between Sufandi’s court testimony and his CAD statements which are in turn consistent with the evidence of the Prosecution witnesses. In this regard, I accepted the following illustrations given by the Prosecution to show the consistencies between Sufandi’s aforesaid CAD statements and the evidence of the Prosecution witnesses:

(1)       Sufandi's CAD statements in P65, P66, P67, P78 and P79 were materially consistent with the evidence provided by PW1 Yeo relating specifically to the price of $2.9 million written on the OTP being inflated, as the sellers had actually agreed to sell for a lower sum; the agreement that the cheques comprising 4% and 15% of $2.9 million were not to be encashed, and the collection of approximately $300,000 in cash from Yeo by Sufandi and Kok after completion of the transaction. Sufandi admitted during XE that he had lied to the CAD about these 3 points and claimed that it was a “sheer coincidence” that PW1 Yeo also told the exact same 3 lies to the Court.[note: 174]

(2)       There is consistency between Sufandi's CAD statements and the evidence provided by PW4 Naseeruddin on several key points regarding the property transaction that the property would be bought in Naseeruddin’s name; Naseeruddin need not pay any money; Naseeruddin would get money when the property was first bought; Naseeruddin would also get money if the property was later sold; a mortgage loan was taken from Maybank, using forged documents in Naseeruddin’s name; and Naseeruddin did not know that forged documents were used to get this loan. Both Sufandi and Naseeruddin stated that Naseeruddin received $40,000 for his role in the transaction. Sufandi's only explanation was that it was "sheer coincidence" that Naseeruddin told the same lies in Court as he did to CAD some years earlier.[note: 175]

(3)       Sufandi’s statements are likewise consistent with the evidence of Hamzi and Iswandi and when confronted with those consistencies, he attributed them too to coincidence.[note: 176]

(vi)     Sufandi did not put his case in DE-14 to the relevant witnesses as shown in the following illustrations given by the Prosecution:

(1)       During the trial, there were significant discrepancies between Sufandi's account in DE-14 and the evidence provided by PW1 Yeo. Sufandi claimed in DE-14 to have given cash sums totalling $116,000 and $435,000 to Yeo, which Yeo allegedly denied receiving during his testimony in court. However, despite this apparent contradiction, Sufandi did not confront Yeo about this issue during XE. When questioned about his failure to do so, Sufandi brushed off the omission, claiming a lack of understanding of trial procedures, despite Sufandi been repeatedly reminded by the Court of his duty to put his case to the witnesses. I agreed with the Prosecution that the exchange between Sufandi and the DPP at the trial showed that the contents of DE-14 are an afterthought as Sufandi had simply not yet thought up the version in DE-14, when the Prosecution witnesses were giving evidence and he concocted this version of events, after the Prosecution had closed its case, indicating a lack of credibility in his testimony.[note: 177]

(2)       Sufandi asserted that he did not name PW4 Naseeruddin as the orchestrator of the frauds in his CAD statements or during XE due to fear of harm to himself and his family. He pointed to Facebook chatlogs DE-15 and DE-16 as evidence of Naseeruddin's harassment and threats, claiming to have felt scared and threatened. However, as pointed out by the Prosecution[note: 178], it was revealed during his XE that Sufandi had previously informed CAD about Naseeruddin's involvement in a separate cheating offence, suggesting that he was not afraid to implicate Naseeruddin. Further, Sufandi's behaviour in the Facebook chatlogs contradicted his claims of fear, as he was seen threatening and mocking Naseeruddin. The fact that he was willing to confront Naseeruddin in other contexts and even mock him casts doubt on his claim of fear. In my view, Sufandi's inconsistencies and contradictions regarding his fear of Naseeruddin's reprisal severely undermine the credibility of his testimony.

(vii)     Sufandi had argued[note: 179] that he was harassed and threatened by PW4 Naseeruddin when he implicated the co-APs in P65, P66, P67, P78 and P79 as when he was first interviewed in prison, Sufandi told CAO Sharon Xie that he was afraid of someone and was unable to tell the truth, and wanted assurance that CAD would protect his family. CAO Sharon Xie ignored Sufandi’s concerns and did not record them in his statement. Having considered Sufandi’s submissions and the Prosecution’s reply, I agreed with the Prosecution[note: 180] that Sufandi’s story about being terrified of Naseeruddin is blatantly untrue. In his statements in DE18, DE19 and DE21 and P87[note: 181], Sufandi did not conceal Naseeruddin’s involvement in the Saraca Terrace transaction with no fear that Naseeruddin would harm his family. He had accused Naseeruddin of being involved in drugs; alleged that Naseeruddin was involved in a fraud company; suggested that Naseeruddin did not have the money to buy Saraca Terrace and he must have obtained a loan using forged documents; and accused Naseeruddin of being the buyer in a fraudulent cashback transaction. All of these completely undercut Sufandi’s case that he was hiding Naseeruddin’s involvement because he was scared. Sufandi's assertion that he was too scared to implicate Naseeruddin to CAD officers is also contradicted by his own statement dated 2 December 2016 in P67 wherein Sufandi provided detailed information about Naseeruddin's involvement in fraudulent activities related to a car loan which contradicts his narrative of being terrified of Naseeruddin.

(viii)    Sufandi had submitted[note: 182] that he did not cross-examine and put his case to Naseeruddin because he was afraid that Naseeruddin would harm his family. In particular, the DPP had identified Sufandi’s wife in Court when Naseeruddin was giving evidence which alarmed and angered Sufandi who immediately raised the issue of whether he can cross-examine Naseeruddin, as his wife was now in danger. Naseeruddin also lost his temper during cross-examination and Sufandi was scared by this and raised the issue of his wife’s safety to the Court. As Naseeruddin’s evidence was completed in just 2 days, there was very little time for Sufandi to recover from this shock and cross-examine him. I rejected Sufandi’s aforesaid submissions and agreed with the Prosecution[note: 183] that Sufandi appears to be opportunistically using an incident in Court, to substantiate a falsehood as his behaviour does not suggest that he was so alarmed or afraid about his wife’s safety that he was unable to cross-examine Naseeruddin on the following grounds:

(1)       Sufandi’s decision to bring his wife to Court, despite claiming fear for her safety, suggests that his claim might be more about leveraging the situation for a strategic advantage rather than a genuine concern. The discrepancy between his actions and his stated fears supports the view that his submission was opportunistic rather than truthful.

(2)       Sufandi's initial response, focusing on the inconvenience rather than the supposed fear for his wife's safety, suggests that his primary concern was not about protecting his wife, but rather about the logistical inconvenience of his wife having to come to court and then leave the courtroom after the Prosecution applied for his wife to step out of the court room.

(3)       Sufandi's failure to follow through on the Court's advice to make a police report before Naseeruddin’s XE began, despite being given the opportunity[note: 184], strongly contradicts his claim of being genuinely concerned for his wife's safety. As pointed out by the Prosecution, if Sufandi’s fear were sincere, it would be reasonable to expect him to take immediate action to protect his wife and his inaction further supports the view that his concern for her safety was not genuine.

(4)       Sufandi’s claim of not cross-examining Naseeruddin due to fear is inconsistent with his actual conduct in Court. By engaging in cross-examination for about 20 minutes from 3:22 pm to 3:43 pm and presenting broad propositions to Naseeruddin that Naseeruddin knew that: the income documents he used for the car loan were not genuine; submitted all three applications for the mortgage loan, car loan and cash loan singlehandedly; and initiated the entire scheme because he needed money[note: 185], Sufandi demonstrated no hesitation or fear in challenging Naseeruddin. Additionally, Sufandi’s decision not to cross-examine Naseeruddin on the details contained in his EIC in DE-14 is because he had not thought up the details yet and this strategy is consistent with his cross-examination strategy with other witnesses, such as PW1 Yeo[note: 186], indicating that his approach to cross-examination was consistent and not influenced by fear or concern for his wife's safety.

(ix)     I rejected Sufandi’s claims[note: 187] that the chatlogs of his conversations with Naseeruddin in DE15-17 showed that Naseeruddin was intimidating and threatening him wherein Sufandi was provoking Naseeruddin in these chatlogs in order to make him come out and face Sufandi who was not afraid that Naseeruddin would hurt him, but he was afraid for his family. I agreed with the Prosecution[note: 188] that an examination of the contents of the chatlogs in DE-15 and DE-16[note: 189] revealed Sufandi's own aggressive and threatening behaviour towards Naseeruddin. Instead of displaying fear, Sufandi mocks and threatens Naseeruddin openly, indicating that he did not take Naseeruddin's threats seriously, which undermines his claim of being terrified and unable to confront Naseeruddin in court.

(x)     I rejected Sufandi’s claims[note: 190] that he laughed during the trial because he felt the Prosecution was disrespecting his family and failing to empathize with their difficulties. I agreed with the Prosecution[note: 191] that Sufandi's behaviour during XE further weakens his claim of fear. While Sufandi appeared distraught and tearful during EIC when describing Naseeruddin's threats, he displayed a different demeanour during cross-examination, where his laughing and dismissing Naseeruddin's threats showed he appeared unaffected. This behaviour contradicted his earlier portrayal of fear, and he even conceded that he was the one actually threatening Naseeruddin, which is not the behaviour of a man so petrified that he was unable to put his case to Naseeruddin when the latter appeared in Court.[note: 192] In this regard, I rejected Sufandi’s submissions on his fear of Naseeruddin harming his family and particularly that :

“…all 12 of his statements contain untruths. It is unreliable and should not be believed. He accused persons whenever they were introduced during the interview and strung together a story with the evidence already shown to him whenever the IO told him that “investigations show that…” to make a believable story. He did this because he was fearful of Naseeruddin harming his family if Naseeruddin found out that Sufandi had exposed his participation in the property transactions to the CAD. He had already told his fears to the IO Sharon Xie when they came to interview him in prison and he wanted their assurance that his family would be protected, but she had ignored his worries and did not record this in his statement which he found unfair.”[note: 193]

(xi)     Sufandi's admissions in the chat exchanges with Naseeruddin in DE-16, where he acknowledges cheating banks and is prepared to serve a sentence for it[note: 194], directly contradict his defence in DE-14. These admissions strongly support the Prosecution's argument[note: 195] that Sufandi was involved in the fraudulent activities related to the Saraca Terrace and Woodgrove Walk sales. His aforesaid admissions significantly weaken his credibility and undermine his claims of innocence regarding the fraud.

(xii)     Sufandi and his co-APs have contended[note: 196] that Sufandi’s statements in P65, P66, P67, P78 and P79 should not be given any weight because these statements have been contradicted by other statements given by Sufandi and in Sufandi’s evidence at the trial (namely, DE18–22); Sufandi has retracted these statements in P65, P66, P67, P78 and P79 at trial as he had repeatedly testified that they are untrue; these were obtained by CAD through promises, and Sufandi did not tell the truth in these statements that Naseeruddin was the mastermind of the fraud committed on Maybank because he was afraid that Naseeruddin would harm his family.[note: 197] Having considered the submissions and replies of all the parties, I rejected all the Defence submissions and agreed with the Prosecution[note: 198] that unlike DE18–22 and Sufandi’s evidence in Court, Sufandi’s statements in P65, P66, P67, P78 and P79 contain the truth and should be given full weight for reasons as follows:

(1)       The Defence's argument that Sufandi's statements in P65, P66, P67, P78 and P79 are contradicted by his earlier statements and that he has retracted these statements in his testimony are valid points to consider. However, the Defence's contention that a witness' s evidence must be believed entirely or not at all is not a correct proposition of law since it is trite law[note: 199] that it is open to this Court to assess a witness’s testimony and accept some portions of Sufandi’s statements and reject the remainder of his evidence based on the trial evidence and corroborating factors. Further, as held in Jagatheesan s/o Krishnasamy v PP [2006] SGHC 129 at [82] to [87], an accused can be convicted solely upon his own confession even though that statement is subsequently retracted and a retracted confession of a co-accused implicating the accused in the offence may also be relied upon to establish the accused’s guilt, so long as the retracted statement was given voluntarily and was objectively reliable based on the circumstances of the case and the cogency of the statement itself, and where a reasonable and reliable explanation can be furnished for the retraction, the court should consider any explanation that the accused person gives for his change of position, but the explanation can be rejected if it is found to be untrue.

(2)       In the present case, while the fact that Sufandi's CAD statements in P65, P66, P67, P78, and P79 are contradicted by his earlier statements and retracted in his testimony does raise questions about their reliability, the corroborative evidence from numerous Prosecution witnesses and documentary evidence objectively supports Sufandi's account in his CAD statements. The consistency between Sufandi's account and the corroborative evidence suggests a basis for believing that his account is true. I disagreed with Sufandi that the alignment between his account and the evidence is merely coincidental. Therefore, while the contradictions in Sufandi's testimony are valid concerns, they do not necessarily undermine the credibility of his account entirely. The Court has the discretion to assess the evidence as a whole, considering both the strengths and weaknesses of Sufandi's testimony, along with the corroborative evidence, in determining the truthfulness of his account.[note: 200]

(3)       I found that the corroboration of Sufandi's CAD statements by multiple independent witnesses and documentary evidence significantly strengthens the credibility of his account in his CAD statements. Independent corroboration from witnesses who had no interaction with each other reduces the likelihood of fabrication or collusion. Sufandi's ability to provide a cohesive and consistent overview of the events, particularly in the Saraca Terrace transaction where his account was supported by both the sellers, buyer and agent, as well as relevant documents received by Maybank officers and executed by PW5 Angela Veronica, indicates a comprehensive understanding and supports the authenticity of his account. In my view, the consistency with accounts and documents from other parties involved suggests that Sufandi’s account in his CAD statements is likely to be true.

(4)       Sufandi's decision to stop protecting BJ after BJ failed to fulfil his promise to take care of Sufandi's family while he was in prison provides a plausible motive for Sufandi to reveal the truth to CAD. [note: 201] This suggests that Sufandi had a change of heart and chose to cooperate with the authorities due to feeling betrayed by BJ and wanting to set things right. I found that Sufandi's CAD statements in P65, P66, P67, P78, and P79 were given voluntarily, without any alleged promises or inducements, and were admitted as evidence as part of the Prosecution's case at the AH. Considering these factors, I took the view that Sufandi's account in these CAD statements as likely truthful and credible, as his voluntary cooperation and motive for revealing the truth add weight to the authenticity of his statements.

(5)       It is highly unlikely for Sufandi to fabricate consistent and coherent information over 11.5 hours of interviews spanning from June 2016 to April 2019. The complexity of the topics discussed and the sheer volume of questions would make it nearly impossible to maintain a fabricated story without inconsistencies. The detailed and consistent responses provided, especially regarding specific documents and events, further support the credibility of Sufandi's account in his CAD statements. The fact that his statements were recorded across multiple interviews adds another layer of complexity, making it improbable for him to maintain a fabricated story over such a long period. Given these considerations, I found Sufandi's aforesaid account to be credible and based on his genuine recollection and understanding of the events discussed during the CAD interviews.

(xiii)    As I have found at the AH that Sufandi's CAD statements in P65, P66, P67, P78, and P79 were given voluntarily, without any alleged promises or inducements from CAO Hong or CAO Chew, and admitted these statements as evidence as part of the Prosecution's case, I rejected Kok’s arguments[note: 202] that Sufandi's statements were obtained through promises made by CAD that Sufandi would become a Prosecution witness if he gave statements incriminating his co-APs or that he would be allowed to travel if he did so.

(xiv)     I rejected Sufandi’s explanation[note: 203] regarding the quotation in P52, which he claimed was created so that Rabu could repay an existing loan owed to Sufandi, and in turn, the amount would be set off against an existing loan Sufandi owed BJ. I agreed with the Prosecution[note: 204] that this explanation was illogical because it would imply the quotation was false and no actual renovation work was planned or carried out. Sufandi’s admission during XE that the quotation in P52 was fake and only intended to be shown to lawyers contradicted BJ's claim that P52 was a genuine document and Sufandi’s sudden change in position during re-examination, without providing any explanation, further undermined his credibility regarding P52's authenticity. Further, Sufandi's aforesaid explanation regarding the quotation in P52 appears to be an afterthought as there was no mention of the explanation in his earlier statements prior to DE-14 and during the trial. Moreover, Sufandi did not question Rohana (who is Rabu’s daughter-in-law) about his dealings with Rabu which suggests that his explanation was not part of his original account and was introduced later without any basis.

(xv)     I disagreed with Sufandi’s submissions[note: 205] that PW16 Iswandi’s evidence has no impact because he did not identify Haron, Juma’at, or Sufandi, and because Iswandi might have associated "Fandi" with "Sufandi" due to the similarity in their names. I agreed with the Prosecution[note: 206] that Iswandi did identify Sufandi as "Fandi" from a photograph in P68 during his evidence which is consistent with PW19 Shirley's testimony and corroborated Iswandi's identification of Sufandi as "Fandi". Despite Iswandi's inability to explain the basis for his identification, the association between "Fandi" and "Sufandi," and Sufandi’s admission of corresponding with Shirley as "Fandi" provided a reasonable basis for the identification. Further, Iswandi’s role in the Woodgrove Walk transaction, which was on the buyer's side, meant that he would not have interacted with Haron and Juma’at, who were on the seller's side. Therefore, Iswandi's failure to identify Haron and Juma’at does not detract from his identification of Sufandi or the credibility of his evidence.

(xvi)     In the light of the above, I rejected the Defence's contention that Sufandi’s CAD statements in P65, P66, P67, P78, and P79 are unsafe for conviction of the APs and should be given little or no weight. I agreed with the Prosecution[note: 207] that Sufandi's CAD statements are true and objectively corroborated by other witnesses and documentary evidence. I took the view that Sufandi's defence and his account of events in DE-14, as well as his claims of being terrified of Naseeruddin based on DE-15 and DE-16, are afterthoughts, blatantly untrue, and lacking credibility due to inconsistencies and contradictions in the light of the inconsistencies and contradictions highlighted above. Additionally, I found Sufandi’s portrayal of fear of Naseeruddin, based on DE-15 and DE-16, as unconvincing and contradicted by his own actions and behaviour.

(xvii)    Sufandi failed to respond or rebut the Prosecution’s comprehensive submissions on his credibility as a witness. I disagreed with the Defence's submissions that Sufandi’s testimony in court is consistent and reliable and I found that Sufandi is not a credible or reliable witness. I rejected Sufandi’s evidence given at the trial regarding his involvement in the Saraca Terrace and Woodgrove Walk transactions, as well as his defence based on the aforesaid evidence, as untruthful and self-serving. I also rejected any of Sufandi's evidence that sought to exonerate himself and/or any of the other co-APs from the respective charges preferred against them.

(xviii)    Specifically, I rejected Sufandi’s submissions[note: 208] in relation to himself, BJ and Kok[note: 209] that :

(1)       he did not know that the documents were false or forged; had not submitted the loan application to Maybank; and did not abet by engaging in a conspiracy with either BJ or Kok.

(2)       all his incriminating evidence against BJ was not true as his evidence at trial, documentary or oral evidence, does not show any connection between BJ and the Saraca Property transaction, and BJ was not involved in the falsification of the income related documents of Naseeruddin, or in the submission of the falsified documents for the Maybank loan application concerning Naseeruddin, and there was no conspiracy between Sufandi, BJ or Kok to do any of these acts.

(3)       all his incriminating evidence against Kok was not true and Kok was not involved in the falsification of the income related documents of Naseeruddin, or in the submission of the falsified documents for the Maybank loan application concerning Naseeruddin, and there was no conspiracy between Sufandi, BJ or Kok to do any of these acts.

(4)       all his incriminating evidence against BJ concerning Shirley was not true as BJ did not know Shirley and did not liaise with Wong, Gopal & Rai concerning the Woodgrove Walk property, and Shirley also did not help BJ by expediting cases or recommending people to borrow from BJ.

(5)       all his incriminating evidence against BJ regarding the Woodgrove Walk property transaction was not true as BJ was not involved in the falsification of the income related documents of Iswandi; in the submission of the falsified documents for the Maybank loan application concerning Iswandi, and there was no conspiracy between Sufandi and BJ to do any of these acts.

(6)       PW20 Hong’s evidence which showed that investigations produced corroborated evidence in Sufandi’s CAD statements in P65, P66, P67, P78 and P79 and which indicated the involvement of the APs in the Saraca Terrace and Woodgrove Walk property transactions is not corroborative evidence, but actually coincidences and the Prosecution is stretching and stringing these coincidences together with the hope of putting together “corroborated evidence” to prove that the APs are conspiring to do wrongful acts in these transactions.

(I)   APPLICABLE LEGISLATION & CASELAW

14     The elements of cheating under s 420 PC are : (a) The victim must have been deceived; (b) The victim must be induced to deliver property to any person by manner of the accused’s deception although the inducement does not need to be the sole or main reason for the delivery of property; (c) The accused must act with a dishonest or fraudulent intention and dishonest intent means an intent to cause a wrongful gain or a wrongful loss.[note: 210] In short, deception must have been practised on the victim with inducement such that the victim delivered a property to any person and a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property.[note: 211]

15     The elements of using as genuine a forged document under s 471 PC are: (a) The document in question is forged; (b) The accused used the document; (c) The accused used it as a genuine document; (d)The accused knew, or had reason to believe, that the document was forged.[note: 212]

16     The elements of abetment by conspiracy are: (a) The accused must engage or conspire with one or more other persons; (b) The conspiracy (or agreement) must be to do the thing abetted; (c) An act or illegal omission must take place in pursuance of the conspiracy, in order to do the thing abetted.[note: 213]

17     The essence of a conspiracy is an agreement. In most cases, the actual agreement would have taken place in private. Direct evidence will rarely be available. Thus, one method of proving a conspiracy is to show that the words and actions of the parties were concerted in the pursuit of a common object – giving rise to the inference that their actions must have been coordinated by arrangement beforehand.[note: 214] The conspiracy can be inferred from the surrounding circumstances, including the conduct of parties before and after the alleged commission of the crime[note: 215]. Although there must be knowledge of a common design, it is not necessary that all the conspirators should be equally informed as to the details as it is enough that all of them are aware of the general purpose of the plot[note: 216]. There is no need for the Prosecution to prove: (a) a physical meeting of the conspirators; (b) that the conspirators remained in each other’s company throughout or at all; (c) that there was communication between each conspirator and every other; or (d) that the conspirators knew all the details of the unlawful plot.[note: 217]

(J)   COURT’S FINDINGS OF FACTS

18     For the reasons given in section (H) above, I found BJ, Kok and Sufandi not to be reliable or credible witnesses and totally rejected their respective testimonies given at the trial and/or in their CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78, and P79) as untruthful and self-serving which sought to exonerate or exculpate themselves and/or their co-APs from the charges preferred against them. I rejected all their factual submissions and defences based largely on their respective testimonies given at the trial and/or in their CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78, and P79). Having found the Prosecution witnesses and Sufandi’s CAD statements in P65, P66, P67, P78, and P79 to be credible and truthful, I accepted their evidence on the factual issues and made the following findings of fact in respect of the Saraca Terrace and Woodgrove Walk transactions, which would satisfy and prove the elements of the charges against BJ, Kok and Sufandi and render their defences invalid[note: 218]:

Findings of facts for Saraca Terrace transaction

(a)     Sufandi and Kok persuaded and convinced PW1 Yeo and his wife, PW2 Lim, who were the sellers of Saraca Terrace, to artificially inflate the price stated on the OTP as $2.9 million, and cannot encash the 4% option exercise fee cheque of $116,000 and 15% downpayment cheque of $435,000, and to arrange for a "cashback" whereby after the completion of the sale, PW1 Yeo gave $300,000 to and as demanded by Kok who was accompanied by Sufandi when he visited Saraca Terrace and had told PW1 Yeo that his property was worth only $2 million.

(b)     Sufandi persuaded PW4 Naseeruddin to use his name and act as the buyer for Saraca Terrace, apply for a mortgage loan from Maybank without requiring any upfront payment, and gave Naseeruddin $40,000 in cash for his role after the completion of the sale.

(c)     Kok's involvement in the Saraca Terrace transaction was extensive and intricate. His actions in providing instructions to PW5 Angela Veronica as the conveyancing secretary; amending the completion amount to reflect that the buyer did not have to pay 15% of the price on completion; referring the case to Lutfi Law Corporation; providing the OTP and the 4% cheque issued by Sufandi to PW5 Angela Veronica; paying the BSD; and arranging for Naseeruddin to sign the Mortgage Instrument at the law firm, all point towards Kok’s pivotal role in facilitating the transaction on behalf of the buyer. The complexity and depth of Kok's involvement with PW5 Angela Veronica indicate a high level of coordination and collaboration with Sufandi and BJ as it is improbable that Kok could have played such a pivotal role without prior discussions and agreements regarding the transaction details and how it was to proceed.

(d)     Sufandi’s submission of forged documents of IRAS Notice of Assessment and CPF statements in PW4 Naseeruddin's name was aimed at deceiving Maybank into believing that Naseeruddin had a significantly higher annual income of $310,300 in 2013 than he actually did so as to secure a mortgage loan approval from Maybank under false pretenses. Maybank's approval and disbursement of $2,320,000 based on these forged documents indicate that Maybank officers were deceived by Sufandi's deceptive actions.

(e)     Kok had collected $300,000 from the seller, PW1 Yeo, after the completion of the transaction, with a subsequent transfer by Kok of this amount to BJ, who then distributed it among PW4 Naseeruddin, Kok himself, Sufandi, and BJ. This indicates a coordinated effort to share the proceeds of the fraudulent scheme among Kok, Sufandi and BJ as the conspirators and reinforces their conspiracy in the fraudulent transaction.

(f)     Kok initially received $80,000 in cash from BJ, deposited it into his personal bank account on 26 March 2014, and later on 16 April 2014 withdrew $72,000 from his personal account. He then deposited this $72,000 into the bank account of Oasis Realtors, of which he is the sole authorized signatory. Subsequently, Kok withdrew $81,600 from the Oasis Realtors bank account and used it to purchase a Cashier's Order for the same amount, payable to the Commissioner of Stamp Duties to cover the BSD for the Saraca Terrace transaction.

(g)     There was an orchestrated scheme with careful coordination involving Sufandi, BJ, Kok in the Saraca Terrace transaction with the ultimate goal to defraud Maybank and obtain a $300,000 cashback. The scheme involves several steps of convincing the sellers, PW1 Yeo and PW2 Lim, to agree to an inflated price on the conveyancing documents while accepting a lower sum for selling the house; persuading PW4 Naseeruddin to lend his name to the transaction and apply for a loan; cheating Maybank by submitting forged income documents to secure mortgage loan approval and disbursement of $2,320,000; deceiving PW5 Angela Veronica, the buyer's conveyancing secretary, into believing that 15% of the price stated on the OTP had been paid to the sellers before completion and conveying the false information by PW1 Yeo to his own lawyers. After completion of the transaction, Kok took $300,000 from PW1 Yeo and passed it on to BJ, who distributed the funds among PW4 Naseeruddin, Kok, Sufandi, and himself. The scheme required careful coordination and advance planning among Sufandi, BJ, and Kok to ensure that each of them played their respective roles effectively and achieved the desired outcome of defrauding Maybank and obtaining the cashback.

(h)     Sufandi’s CAD statements (in P65, P66 and P87) which corroborate and reinforce the aforesaid factual findings provided a detailed account of the conspiracy between BJ, Kok and Sufandi to cheat Maybank using forged income documents and indicate that BJ taught Sufandi a scheme to convince the sellers to inflate the selling price of the Saraca Terrace property in order to secure a larger mortgage loan from the bank and also agree to facilitate a cashback after the sale was completed. [note: 219] The aforesaid CAD statements are in turn fully and materially corroborated by the aforesaid factual findings as these statements are consistent with :

(i)       PW1 Yeo and PW3 Adrian’s account on who had explained the scheme to inflate the sale price of Saraca Terrace and where this took place, as Sufandi had told CAD that Kok first explained the scheme to PW3 Adrian and subsequently explained it to PW1 Yeo at another meeting at Greenwich V.[note: 220]

(ii)       PW1 Yeo’s evidence on how the cheques were used where PW1 Yeo first received a post-dated cheque for $29,000 being 1% of the sale price, but subsequently received the same amount in cash. When PW1 Yeo received the 4% and 15% cheques, he was told not to encash them, as these cheques were given to PW1 Yeo by Sufandi to show that 19% of the sale price had been paid when it had in fact not been so paid, as admitted by Sufandi.[note: 221]

(iii)       PW1 Yeo’s evidence that he gave $300,000 in cash to Kok and Sufandi, and Sufandi also stated that the money received was split between BJ, Kok and himself.[note: 222]

(iv)       PW4 Naseeruddin’s evidence that he was persuaded by Sufandi to be the named buyer for Saraca Terrace with Sufandi promising him money; his income documents of IRAS Notice of Assessment and CPF statements submitted to Maybank were forged; he did not communicate with the bank officer; and he attended to a Maybank branch to sign the Mortgage Facility Letter on Sufandi’s instructions, as Sufandi had admitted that he was the one who communicated with the bank officer and submitted the forged income documents.[note: 223]

(v)       Evidence adduced at the trial that either BJ or Kok had prepared the forged income documents.[note: 224]

(vi)       PW4 Naseeruddin’s evidence that he was told by Sufandi to proceed to Lutfi Law to sign the Mortgage Instrument, and on how he used the forged income documents to purchase a car.[note: 225]

(vii)       PW5 Angela Veronica and her interactions with Kok in that Kok acted as the housing agent representing the buyer and instructed PW5 Angela Veronica on the purchase of Saraca Terrace, and Kok paid the BSD with the money from BJ.[note: 226]

(viii)       PW9 Wong Jing Ling Jerlyn, the Maybank bank officer’s evidence that she received the application form and income documents via email.[note: 227]

Findings of facts for Woodgrove Walk transaction

(a)     Haron and Juma'at convinced PW6 Rohana and Hamzi, the sellers of Woodgrove Walk, to state an inflated price of $3.55 million (instead of the actual selling price of around $2.4 million) on the conveyancing documents and pay a "cashback" to EBS after completion.

(b)     Sufandi recruited PW16 Iswandi to pose as the buyer of Woodgrove Walk and apply for a mortgage loan in Iswandi’s name.

(c)     PW19 Shirley Goh, acting as the buyer's conveyancing secretary, followed Sufandi's instructions regarding the sale and purchase of Woodgrove Walk.

(d)     PW14 Rajendran, acting as the sellers' solicitor, was instructed to draw up a letter of authority instructing Maybank to pay $464,000 to EBS based on a quotation prepared by BJ to support this payment.

(e)     Maybank, through its officers, was deceived into believing that Iswandi had an annual income of $471,600 in 2013. This deception was carried out using forged income documents of IRAS Notice of Assessment, CPF statements and bank statements in Iswandi’s name, and submitted by Sufandi. Based on the evidence of PW11 Mohamed Pauzi Ali, a DBS Treasures POSB Bank Statement in P44 was forged. As a consequence of this deception, Maybank was dishonestly induced into approving a mortgage loan and disbursing $2,840,000 to PW16 Iswandi.

(f)     Haron instructed PW6 Rohana to prepare a cashier's order for the payment of $464,000 to EBS after completion, and later either Haron or Juma'at collected a cheque for the same amount from Rohana, which ultimately ended up in BJ's personal bank account.

(g)     Haron and Juma'at were acting as agents for Hamzi and PW6 Rohana respectively, in the sale of the Woodgrove Walk property. They collaborated in various aspects of the sale, including discussing details with Hamzi, arranging viewings for potential buyers, and handling paperwork. Juma'at took responsibility for handing over the 1% OTP fee and signing the OTP, even though the signature block belonged to Haron. Haron was involved throughout the conveyancing process, including the signing of the instruments of transfer, the letter of authority and the EBS quotation. Haron provided specific instructions to Rohana regarding payments to be made upon completion of the sale, including arranging a cashback payment to EBS.

(h)     PW16 Iswandi's evidence revealed a conspiracy between Sufandi and BJ to defraud Maybank. This conspiracy involved the use of forged documents of IRAS Notice of Assessment, CPF statements and bank statements. Sufandi recruited Iswandi to act as a "dummy buyer" of the Woodgrove Walk property and Iswandi's role was to apply for a mortgage loan with Maybank using false identities and forged documents as part of the fraudulent scheme orchestrated by Sufandi and BJ.

(i)     PW19 Shirley's evidence regarding the conveyancing process of Woodgrove Walk indicates that Sufandi played a significant role in coordinating the process. Sufandi was deeply involved and took responsibility for paying the BSD and served as the primary contact for the person whom PW19 Shirley believed to be PW16 Iswandi.

(j)     After the sale of Woodgrove Walk was completed on 9 October 2014, $464,000 was deposited via cheque into the UOB Corporate Account of EBS which was withdrawn on 13 October 2014 and deposited into BJ's personal UOB Savings account. This showed that BJ received a cashback of $464,000 earned from the proceeds of cheating Maybank. The actions of the involved parties, the sellers (PW6 Rohana and Hamzi), the buyer (PW16 Iswandi), the property agents (Haron and Juma'at), the sellers' solicitors (PW14 Rajendran and PW15 Mdm Prasanna), the buyer's conveyancing secretary (PW19 Shirley), and the Maybank officers, were all coordinated by Sufandi and BJ as part of their conspiracy to achieve the end goal of paying $464,000 to BJ.

(k)     The stated sale price was false and Haron and Juma’at knew this as Haron had proposed to Hamzi and PW6 Rohana, with Juma’at’s knowledge, to agree to mark up the sale price for Woodgrove Walk with the stated price of $3.55 million, but the actual selling price was around $2.4 million.

(l)     Sufandi’s CAD statements (in P65, P66, P78 and P79) which corroborate and reinforce the aforesaid factual findings showed that there was a scheme between Sufandi and BJ on inflating the stated sale price on the conveyancing documents of Woodgrove Walk in order for PW6 Rohana and Hamzi as the sellers to give a cashback to the buyers and agree to pay back cash to Sufandi and BJ after the sale. [note: 228] The aforesaid CAD statements are in turn fully and materially corroborated by the aforesaid factual findings as they are consistent with :

(i)       The evidence of Hamzi and PW6 Rohana as the sellers that Haron and Juma’at were acting as their agents for the Woodgrove Walk transaction.[note: 229]

(ii)       Hamzi’s account that Haron had given him an OTP in which the sale price was marked up and Haron had told him that he had to pay $464,000 after completion for renovation.[note: 230]

(iii)       The evidence of Hamzi and PW6 Rohana on why there were two OTPs, one in P34 which was signed by the sellers, and the pages in P38 which was eventually submitted to the bank.[note: 231]

(iv)       The evidence adduced at trial on how the sum of $464,000 was extracted from Hamzi and PW6 Rohana and paid to EBS.[note: 232]

(v)       PW16 Iswandi’s evidence that PW16 Iswandi’s role was to put down his name as the buyer of Woodgrove Walk in exchange for a sum of money corroborated his evidence that he did not communicate with a Maybank officer, except to meet him to sign a Letter of Offer and that he did not communicate with any conveyancing secretary, as Sufandi had admitted that he was the one who communicated with PW13 Ammar Salim and PW19 Shirley for the transaction. This is also consistent with PW13 Ammar Salim’s evidence that he corresponded with phone number xxxx, and the email of xxxx, for the Woodgrove Walk transaction and corroborated PW19 Shirley’s evidence that she dealt with Sufandi for the transaction.[note: 233]

(vi)       PW16 Iswandi’s evidence that he went to a law firm in Chinatown to sign the Mortgage Instrument.[note: 234]

(m)     Sufandi’s CAD statements (in P65, P66, P78 and P79) also explained how forged income documents in Iswandi’s name were used to cheat Maybank[note: 235], and showed that Haron and Juma’at knew about the plan to inflate the price and obtain cashback, but they did not know about getting the mortgage loan using forged documents.[note: 236]

(K)   CONCLUSION FOR THE TRIAL

19     Having given due consideration to the merits of the parties’ submissions and having properly weighed and assessed the strengths and weaknesses of the parties’ submissions based on the trial evidence, I found that the compelling picture from the relevant testimonies of the Prosecution witnesses, as well as the relevant objective documentary evidence is that BJ, Kok and Sufandi had conspired with one another to commit the offences as stated in their respective charges (except that Kok was only involved in the Saraca Terrace offences), and the aforesaid testimonial and documentary evidence is consistent with the direct evidence of the conspiracies detailed in Sufandi’s CAD statements in P65, P66, P67, P78 and P79. I totally rejected as untruthful and self-serving the testimony of BJ, Kok and Sufandi given at the trial and/or in their respective CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78 and P79) regarding their respective non-involvement, as well as that of the other co-APs in the Saraca Terrace and Woodgrove Walk transactions, and also their respective defences based on the aforesaid testimony and their respective CAD statements (except for Sufandi’s CAD statements in P65, P66, P67, P78 and P79). Having regard to the applicable laws on cheating, use of forged document, fraudulent execution of a deed of transfer and abetment of conspiracy as applied to my above factual findings, I found that the Prosecution has proved its case that :

(a)     The actions of all the persons involved in the sale of Saraca Terrace, namely the sellers (PW1 Yeo and PW2 Lim), buyer (PW4 Naseeruddin), property agent (PW3 Adrian), Maybank officers (PW9 Wong, PW10 Leow and PW12 Tay), conveyancing secretary (PW5 Angela Veronica), were all carefully coordinated to achieve the object of cheating Maybank with the end goal for BJ to obtain $300,000 from the proceeds of cheating, out of which BJ paid PW4 Naseeruddin, Kok, Sufandi and himself. Such careful and intricate coordination were carried out by Sufandi, BJ and Kok who had all conspired and planned everything in advance where Sufandi and Kok first convinced PW1 Yeo and his wife, PW2 Lim, who were the sellers of Saraca Terrace, to inflate the price on the OTP and then to agree to a "cashback" after the sale.

(b)     The actions of all the persons involved in the sale of Woodgrove Walk, namely the sellers (PW6 Rohana and Hamzi), buyer (PW16 Iswandi), property agents (Haron and Juma’at), Maybank officers (PW13 Ammar and PW10 Leow) and conveyancing secretary (PW19 Shirley), were carefully coordinated by BJ and Sufandi to achieve the common object of cheating Maybank with the end goal for BJ to make off with $464,000. Central to that goal were inflating of the price to $3.55 million on the conveyancing papers and the payment of a $464,000 cashback to EBS. As Haron and Juma’at were intimately involved in both the price inflation and the cashback, they knew that the price of $3.55 million on the transfer instrument was false.

(c)     The actions of all the parties involved in the sale of Saraca Terrace and Woodgrove Walk are wholly consistent with the direct evidence of a conspiracy found in Sufandi’s CAD statements (in P65, P66, P78, P79 and P87) which showed the details of the conspiracy to cheat Maybank and to use forged documents for loan applications, and which are in turn fully and materially corroborated by the objective documentary and testimonial evidence of the Prosecution witnesses as adduced by the Prosecution at the trial. In particular, the respective evidence of PW22 Gobikrishna and PW24 Zulkarnain further corroborated Sufandi’s account of the conspiracies in his aforesaid CAD statements.

(d)     Specifically in respect of Saraca Terrace, as regards the charges under s 420 r/w s 109 PC, I found that the Prosecution has proved that Sufandi, BJ and Kok conspired to cheat Maybank and deceive Maybank into believing that PW4 Naseeruddin had a 2013 annual income of $310,300, so as to dishonestly induce Maybank into approving and delivering a $2,320,000 mortgage loan to PW4 Naseeruddin, for the purchase of Saraca Terrace, and these acts were done by Sufandi, BJ and Kok pursuant to this conspiracy. As for the charges under s 471 r/w s 109 PC, I found that the Prosecution has proved that Sufandi, BJ and Kok conspired to use as genuine, forged IRAS Notice of Assessment and CPF statements as income statements in PW4 Naseeruddin’s name as part of his mortgage loan application to Maybank for Saraca Terrace and the aforesaid forged documents were so used.

(e)     Specifically in respect of Woodgrove Walk, as regards the charges under s 420 r/w s 109 PC, I found that the Prosecution has proved that Sufandi and BJ conspired to cheat Maybank and deceive Maybank into believing that PW16 Iswandi had a 2014 annual income of $471,600 so as to dishonestly induce Maybank into approving and delivering a $2,840,000 mortgage loan to PW16 Iswandi, for the purchase of Woodgrove Walk, and these acts were done by Sufandi and BJ pursuant to this conspiracy. As for the charges under s 471 r/w s 109 PC, I found that the Prosecution has proved that BJ and Sufandi conspired to use as genuine, forged IRAS Notice of Assessment, CPF statements and bank statements as income documents in PW16 Iswandi’s name as part of his mortgage loan application to Maybank for Woodgrove Walk and the aforesaid forged documents were so used.

20     Accordingly, I rejected the submissions of BJ, Kok and Sufandi for their respective acquittals as I was satisfied that the Prosecution has proved all the charges preferred respectively against each of them beyond a reasonable doubt, and I found BJ, Kok and Sufandi guilty and convicted each of them of all their respective charges.

(L)   SENTENCING CONSIDERATIONS, PRECEDENTS & PRINCIPLES

21     I have carefully considered the sentencing submissions and mitigation plea of all the parties[note: 237] before deciding on the appropriate individual sentence and aggregate or global sentence to be imposed on BJ, Kok and Sufandi for their respective offences[note: 238] for the reasons set out below.

Little to no mitigating factors

22     I agreed with the Prosecution that as BJ, Kok and Sufandi are not first-time offenders with little to no mitigating factors, they are not entitled to receive the usual sentencing discounts given to an offender ’s plea of guilt to recognise the saving of state resources as they have all been found guilty following a lengthy trial spanning 54 days across two calendar years from 2022. BJ and Sufandi who have been found guilty of seven charges each in respect of two property transactions that took place in different periods of time cannot be considered as first-time offenders as it is trite law that an offender who faces numerous charges cannot be considered a first-time offender. BJ also had a conviction for online gambling and had been fined for this offence. As for Sufandi, I rejected his submission to treat all his charges as 1st time offences as he did not have any previous criminal record in view of the numerous charges against him. As regards Kok, he has been found guilty of one count of s 420 read with s 109 PC on 20 February 2024 in DAC-933268-2019.

23     Regarding BJ’s medical issues of diabetes, hypertension and cardiac issues, there were no medical or other relevant reports stating that he cannot have them treated with the prescribed medication while serving his sentence in prison. Hence, these medical issues are not relevant to BJ’s sentencing as a ground for the exercise of judicial mercy or as a mitigating factor.[note: 239]

Cheating offences

24     I accepted the Prosecution’s submissions on the following sentencing considerations as relevant and applicable to the individual sentences to be imposed on the APs, BJ, Kok and Sufandi for their respective cheating charges where the prescribed punishment under s 420 PC read with s 109 PC for each charge is an imprisonment for a term which may extend to 10 years, and shall also be liable to a fine:

(a)     As correctly submitted by the Prosecution, the offences committed by the APs involved a sophisticated scheme that deceived Maybank into disbursing multi-million dollar mortgage loans based on forged income documents. This fraudulent activity undermined the integrity of Maybank and posed significant risks to the broader financial system. The APs exploited the trust and due diligence processes of Maybank by submitting forged income documents, which manipulated the bank’s lending criteria and led to the disbursement of substantial funds under false pretences. This deception undermined the bank's operational integrity and financial stability. General deterrence must be the dominant sentencing consideration with severe sentences to be meted out by the Courts for offences that affect the delivery of financial services[note: 240], as the financial burden resulting from mortgage fraud extends beyond the banking industry, ultimately impacting the general public, especially the home-owning community, through higher administrative costs, more onerous application processes, and higher interest rates.[note: 241]

(b)     As highlighted by the Prosecution, the following aggravating factors warrant the imposition of stiff sentences to be imposed on the APs :

(i)       The APs' fraudulent actions led to significant financial losses for Maybank, with the bank disbursing two mortgage loans to the “buyers” of properties at Saraca Terrace and Woodgrove Walk, totalling $5,160,000. Despite recovery efforts, only about 65.3% of the loan disbursed was recovered, resulting in an unmitigated loss of $1,791,915.04, which included a $579,582.69 loss for Saraca Terrace and a $1,212,332.35 loss for Woodgrove Walk. No restitution was made by the APs, exacerbating the financial damage inflicted on Maybank. As it is trite law that the amount cheated and the unmitigated loss are primary factors in determining the appropriate sentence, the significant financial losses necessitate severe penalties to reflect the gravity of the offences and serve as a deterrence to others. The higher unmitigated loss associated with Woodgrove Walk warrants a stiffer sentence compared to Saraca Terrace.

(ii)       The sentence to be imposed on the APs must reflect the planning and premeditation employed, their respective roles and culpability in the enterprise, and their motivation for personal gain. Based on my factual findings for the trial on the respective roles of BJ, Kok and Sufandi, I found that the entire criminal enterprise was carefully orchestrated by BJ and executed by Sufandi and Kok for the Saraca Terrace transaction and by BJ and Sufandi for the Woodgrove Walk transaction. BJ was identified as the brain, mastermind and financier behind the conspiracy to cheat Maybank, while Sufandi and Kok (which concerned only Saraca Terrace) were active participants instrumental in executing BJ’s master plan[note: 242] and were intimately involved in the conspiracy with Sufandi been present right from the conception of the premeditated conspiracy which is an aggravating factor.[note: 243] I agreed with the Prosecution that a harsher sentence on BJ vis-à-vis Sufandi and Kok for the Saraca Terrace transaction and BJ vis-à-vis Sufandi for the Woodgrove Walk transaction is justified based on BJ’s role[note: 244]. I also found that the premeditated and planned offending of BJ, Sufandi and Kok for the Saraca Terrace transaction, and of BJ and Sufandi for the Woodgrove Walk transaction, are aggravating factors deserving of a stiff sentence. [note: 245] As correctly pointed out by the Prosecution, the offending of the APs was meticulously planned, premeditated, and executed jointly, requiring a high level of communication to coordinate the actions of four different groups of people, displaying their deliberate and calculated offending.

(iii)       The sentence to be imposed on BJ, Sufandi and Kok must take into account their respective personal gain or benefit and the Court must be harsh in censuring them for making such ill-gotten gains as an aggravating factor.[note: 246] As highlighted by the Prosecution, a total of $764,000 was received collectively as “cashback” from the sellers of Saraca Terrace and Woodgrove Walk, with the pool of money split and BJ receiving the lion share of their pot, according to Sufandi’s CAD statements in the Prosecution’s table reproduced below:

AP

Personal Benefit

Saraca Terrace34

Woodgrove Walk

BJ

$59,400 to $69,40035

$307,76236

Sufandi

$10,000

$10,000

Kok

$70,000 to $80,000

-



(c)     It is trite law that an offender who has a more culpable role in a criminal enterprise should be dealt with more severely than an accomplice who played a lesser role[note: 247] and while those of similar culpability should receive similar sentences, those of greater culpability are punished more severely[note: 248]. Under the principle of parity in sentencing, where two or more offenders are to be sentenced for participation in the same offence, their sentences should be the same, unless there are relevant differences in their responsibility for the offence[note: 249].

(d)     In PP v Iswandi Bin Yahya [2021] SGDC 17 (“Iswandi”), the offender who was the “dummy buyer” for Woodgrove Walk pleaded guilty and was sentenced to 24 months’ imprisonment for his role. His sentence was upheld on appeal and the Court recognised that his culpability was low.

(e)     Based on my factual findings regarding the roles played by BJ and Sufandi in the Woodgrove Walk transaction, I agreed with the Prosecution's position that the sentences for BJ and Sufandi must be more severe than Iswandi's. BJ and Sufandi had significantly more extensive involvement in the criminal conspiracy, with Sufandi even recruiting Iswandi to act as a "dummy buyer." Iswandi, having pleaded guilty, was afforded a reduction in his sentence as a result of his plea, while BJ and Sufandi opted to claim trial, which extended the proceedings over 54 days in court. In light of these considerations, I accepted the Prosecution's argument for an uplift in sentence by 3 to 5 years. Accordingly, as proposed by the Prosecution, the sentence for BJ on the cheating charge for the Woodgrove Walk transaction in DAC-933254-2019 should be between 6 and 7 years' imprisonment while for Sufandi, the sentence for his role in the same transaction in DAC-933284-2019 should be between 5 and 6 years' imprisonment. Regarding the Saraca Terrace transaction based on my factual findings regarding the roles played by BJ, Sufandi and Kok, I agreed with the Prosecution that a lower uplift is warranted. Therefore, as proposed by the Prosecution, the sentence for BJ in DAC-933252-2019 should be between 5 and 6 years' imprisonment, and for Sufandi and Kok, the sentences for their respective cheating charges in DAC-933283-2019 and DAC-933266-2019 should be between 4 and 5 years' imprisonment.

(f)     Based on the comparisons to the sentencing precedents of Cheong and Winnie Goh, as referenced in the Prosecution's submissions[note: 250], I rejected Kok’s submissions and agreed with the Prosecution that the sentences to be imposed on BJ, Sufandi and Kok for the cheating offences are appropriately aligned. The present case, as highlighted by the Prosecution, exhibits aggravating factors beyond those in Cheong. It involved a more complex scheme that required meticulous planning and coordination among multiple groups, and it was more syndicated with a larger number of individuals involved compared to Cheong, which only had three conspirators. Furthermore, the financial scale of the fraud in the present case ($5.16 million cheated and an unmitigated loss of $1.79 million) significantly exceeds that in Cheong ($1.54 million cheated and an unmitigated loss of $676,320), except that Kok’s offence concerned only Saraca Terrace and the loss involved was $579, 582.69. These factors underscore the severity and complexity of the present offences, warranting sentences that reflect the increased gravity and impact of the crimes committed.

(g)     In contrast to Winnie Goh, where the scheme involved genuine buyers and inflated income documents to meet loan criteria, the present case as highlighted by the Prosecution is more brazen as the income documents were entirely forged, and the "dummy buyers" had zero income to support their supposed property purchases. The entire transaction was a mere vehicle devised to facilitate the APs' wrongful gain. Moreover, Maybank's unmitigated loss in the present case amounted to about $1.79 million out of the about $5.16 million disbursed, reflecting a significant financial impact, except that Kok’s offence concerned only Saraca Terrace and the loss involved was $579,582.69. In contrast, despite Winnie Goh involving the disbursal of over $62 million across 179 mortgage loans, the unmitigated loss was lower at $687,788.37. This difference underscores the severity and audacity of the present scheme, where the fraudulent activities led to a higher financial loss despite a lower overall loan amount disbursed compared to Winnie Goh.

(h)     Unlike Cheong and Winnie Goh where the offenders had pleaded guilty and hence entitled to sentencing discounts, BJ, Kok and Sufandi had claimed trial which took over 54 days and hence a higher sentence than Cheong and Winnie Goh is justified.

(i)     I have considered the case of Leck Kim Koon v PP [2022] 3 SLR 1050 cited by counsel for BJ and I took the view that the aforesaid case is irrelevant and clearly distinguishable from the present case as the offender’s medical condition was a relevant mitigating factor in the reduced sentence imposed on him with no conspiracy and no actual loss caused to the banks where the sum of moneys involved in the offender’s six charges totalled up to US$622,783.95 as compared to about SGD 5.16 million involved in BJ’s case.

(j)     I have also considered the case of PP v Go Boon Chai [2012] SGDC 71 cited by counsel for Kok and I took the view that the aforesaid case is irrelevant and clearly distinguishable as unlike the present case, the offender had pleaded guilty with sentencing discount accorded to him (with the maximum sentence for a cheating offence been 7 years at that time instead of the present maximum sentence of 10 years) and the total amount involved was $2.56 million with no quantification of the actual loss suffered by the bank as compared to about SGD 2.32 million involved with an unmitigated total loss of $579, 582.69 for Saraca Terrace in the present case. As for the other cases of PP v Toh Thong Lim [2009] SGDC 505, PP v Law Kok Leong [2009] SGDC 504 and PP v Toh Beng Hua [2009] SGDC 506 cited by counsel for Kok where each offender was fined SGD 10,000, I found that they are also irrelevant and clearly distinguishable as unlike the present case, they were plead guilty cases and did not involve banking institutions where large sums of money were involved and defrauded in an extensive conspiracy concerning the sale of 2 landed properties (except that Kok was only involved in Saraca Terrace).

Forged documents offences

25     The offences involving forged documents, carrying a potential punishment of imprisonment for up to 4 years under s 471 PC read with ss 465 and 109 PC, are undeniably serious. I agreed with the Prosecution that the primary sentencing consideration in this case should be general deterrence, particularly given that the offences were committed against public authorities. The forged documents included those purportedly issued by the IRAS and the CPF, which were submitted to defraud Maybank as a financial institution. The involvement of public authorities and financial institutions in the present offences elevates their severity and necessitates a sentence that emphasises general deterrence. Such a sentence is crucial for sending a strong message that dissuades others from engaging in similar fraudulent activities. Moreover, the premeditated and carefully planned nature of these offences, rather than being spontaneous acts, serves as a significant aggravating factor in determining the appropriate sentence. This deliberate and calculated planning highlights the gravity of the criminal conduct, necessitating a sentencing approach that adequately reflects the seriousness of these offences.[note: 251]

26     Based on my factual findings for the trial, it is clear that the offences involved the creation and submission of forged documents, including IRAS NOA, CPF Contribution statements, and payslips of dummy buyers, which were created by BJ or Kok and submitted to Maybank by Sufandi. These fraudulent submissions were made using email accounts created in the names of the dummy buyers. Additionally, for the Woodgrove Walk transaction, Sufandi submitted a forged DBS Treasures Bank statement to Maybank. The coordination among BJ, Sufandi and Kok (for Saraca Terrace only) was not only extensive but also meticulously planned. They successfully secured the cooperation of dummy buyers, who permitted their names to be used for the transactions and would ultimately bear responsibility for loan repayments. Furthermore, the trio (Kok for Saraca Terrace only) coordinated with sellers to inflate sale prices and sign transfer documents reflecting false sale prices, often involving agents like Haron and Juma’at in these deceptive acts. The level of coordination and the deliberate use of forged documents and false information in these transactions highlight the premeditated and carefully orchestrated nature of the offences. These factors serve as significant aggravating factors in determining the appropriate sentences. The planned and calculated execution of these fraudulent activities underscores the gravity of the criminal conduct, warranting severe penalties to reflect the seriousness of the offences and to serve as a deterrence to others.

27     Based on the sentencing precedent of Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946 referred to by counsel for Kok[note: 252] which involved forgery relating to a credit company as a financial institution and in the absence of any other relevant sentencing precedents cited by the parties, I accepted the Prosecution’s submission for a sentence of at least 6 months imprisonment to be imposed for each s 471 PC r/w s 465 PC charge respectively for BJ in DAC-933256-2019, DAC-933257-2019, DAC-933261-2019, DAC-933262-2019 and DAC-933263-2019; for Sufandi in DAC-933286-2019, DAC-933287-2019, DAC-933288-2019 and DAC-933289-2019; and for Kok in DAC-933269- 2019 and DAC-933270-2019.

28     I have considered the cases of Lin Lifen v PP [2016] 1 SLR 287 (where the offender had pleaded guilty to using a fake university certificate for an application for permanent residence) and Xia Qin Lai v PP [1999] 3 SLR(R) 257 (where the offender had pleaded guilty to using a false passport as genuine) cited by counsel for BJ. I took the view that these 2 cases are irrelevant and clearly distinguishable as unlike the present case, they were plead guilty cases and did not involve banking institutions where large sums of money were involved and defrauded in an extensive conspiracy concerning the sale of 2 landed properties. Hence, I rejected BJ’s submission for a sentence of 2 months’ imprisonment each for the s 471 r/w s 465 PC offences faced by him. I also rejected Sufandi’s submission for a sentence of between 3 to 6 months’ imprisonment each for the s 471 r/w s 465 PC offences faced by him.

Consecutive sentences and totality

29     I rejected the Prosecution's submissions that the sentences for BJ and Sufandi for their respective two cheating offences should run consecutively. I agreed with counsel for BJ that his charges comprised two groups: one for the Saraca Terrace enterprise, where all the charges form part of the same single transaction, and the other for the Woodgrove Walk enterprise, where all the charges form part of the same single transaction. There is a need to avoid a crushing sentence when ordering consecutive sentences from the cheating charges in these two groups, as submitted by BJ’s counsel which I agreed with.

30     I took the view that running the sentences for the two cheating offences consecutively would result in up to 13 years' imprisonment for BJ and 11 years' imprisonment for Sufandi leading to their respective aggregate sentences violating both limbs of the totality principle. The first limb of the totality principle examines whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed.[note: 253] The most serious individual offence for both BJ and Sufandi is cheating, which provides for a term of imprisonment of up to 10 years. In my view, the Prosecution’s proposed aggregate sentences of between 11 and 13 years for BJ and between 9 and 11 years' imprisonment for Sufandi would exceed by 2 to 4 years (as admitted by the Prosecution) the normal sentencing range of between 6 years’ and 7 years’ and 9 months’ imprisonment based on the sentencing precedents cited by the Prosecution for a similar cumulative unmitigated loss of S$1.79 million[note: 254]. The aforesaid Prosecution’s proposed aggregate sentences would in fact even exceed by 1 to 3 years the maximum permissible sentence of 10 years for the most serious individual cheating offence committed by BJ and Sufandi. For Sufandi, even if a lower sentence of 9 years within the Prosecution’s proposed aggregate sentence of between 9 and 11 years' imprisonment were to be imposed on him, it would still be close to the maximum permissible sentence of 10 years.

31     If the overriding concern of the first limb of the totality principle is to ensure proportionality, then it would be incongruous to take as a yardstick for comparison a maximum permissible sentence which would usually be reserved for the most serious offenders and which may have no correlation to the actual circumstances in which the offender who is before the court committed the offence in question.[note: 255] The second limb of the totality principle considers whether the effect of the sentence on the offender is crushing and not in keeping with his past record and his future prospects.[note: 256] While the offending of BJ and Sufandi is severe considering the duration and scale of the offending and involves a significant amount of money cheated from Maybank involving two properties and multiple individuals, I was not satisfied that the present case warranted an aggregate sentence for each of them that exceeds the normal sentencing range of between 6 years’ and 7 years’ and 9 months’ imprisonment based on the sentencing precedents cited by the Prosecution for a similar cumulative unmitigated loss of S$1.79 million, and also the maximum permissible sentence of 10 years for the most serious individual cheating offence committed by each of them, as this would be crushing and not in keeping with the past records and future prospects of BJ and Sufandi.

32     I also took the view that since BJ and Sufandi each faced two categories of offences under s 420 PC read with s109 PC and s 417 PC read with s 465 PC and s 109 PC, their sentences must properly reflect the overall criminality of their conduct. To ensure that BJ and Sufandi are each punished and serve one sentence for each of the two different categories of offences, one sentence from each category (under s 420 PC read with s109 PC and under s 417 PC read with s 465 PC and s 109 PC) should run consecutively.

33     I rejected BJ’s submission for an aggregate or global sentence of between 36 to 40 months’ imprisonment as it would be manifestly inadequate in view of his role in the 2 conspiracies based on my factual findings for the trial. I agreed with the Prosecution that since the two cheating offences were committed at different times, the sentences for each of the two cheating offences committed by BJ and Sufandi must adequately and appropriately reflect their overall criminality in cheating Maybank twice for an aggregate amount of about $5.16 million. Hence, within the sentencing range as proposed by the Prosecution of between 5 and 6 years' imprisonment and between 6 and 7 years' imprisonment respectively for the two cheating offences committed by BJ, I would impose an appropriate sentence at the top end of 6 years’ imprisonment for DAC-933252-2019 and 7 years’ imprisonment for DAC-933254-2019. Pursuant to s 307(1)[note: 257] CPC, I ordered that BJ’s sentence of 7 years’ imprisonment for DAC-933254-2019 is to run consecutively with the sentence of 6 months for the forged documents charge in DAC-933256-2019, resulting in an aggregate or global sentence of 7 years and 6 months’ imprisonment for him.

34     In view of Sufandi’s role in the offences based on my factual findings for the trial, I rejected his submissions for 3 years’ imprisonment for the cheating charge in DAC-933283-2019 and 2 years imprisonment for the cheating charge in DAC-933284-2019, as well as for his sentence for the aforesaid 2 cheating charges to run consecutively with an aggregate sentence of between 5 and 6 years’ imprisonment. Within the sentencing range as proposed by the Prosecution of between 4 and 5 years’ imprisonment and between 5 and 6 years’ imprisonment respectively for the two cheating offences committed by Sufandi, I would impose an appropriate sentence at the top end of 5 years’ imprisonment for DAC-933283-2019 and 6 years’ imprisonment for DAC-933284-2019. As required by s 307(1) CPC, I ordered that Sufandi’s sentence of 6 years’ imprisonment for DAC-933284-2019 is to run consecutively with the sentence of 6 months for the forged documents charge in DAC-933286-2019, resulting in an aggregate or global sentence of 6 years and 6 months’ imprisonment for him.

35     As Kok faces only one cheating charge and taking into account that he was not involved in the Woodgrove Walk transaction where the loan disbursed and loss sustained was significantly higher than in the 35 Saraca Terrace transaction, I would impose on him an appropriate sentence of 4 years’ imprisonment at the lowest end of the sentencing range of 4 and 5 years’ imprisonment as proposed by the Prosecution. Pursuant to s 307(1) CPC, I ordered that Kok’s sentence of 4 years’ imprisonment for his cheating charge is to run consecutively with the sentence of 6 months’ imprisonment for the forged documents charge in DAC-933269-2019, resulting in an aggregate or global sentence of 4 years and 6 months’ imprisonment for him. In this regard, I rejected Kok’s submissions for a 18-months’ imprisonment sentence for his cheating charge as it would be manifestly inadequate in view of his role in the conspiracy with BJ and Sufandi based on my factual findings for the trial which showed that Kok’s culpability was much higher than Iswandi who had merely lent his name to the scheme, interacted with the Maybank staff in signing the requisite financial documents and with the conveyancing solicitors at their office to sign the completion documents, albeit the loss caused in Iswandi‘s case amounted to $1,212,332.35 whereas in relation to Kok’s offences, the loss caused was less than half of that at $579,582.69.

36     In evaluating Kok's submissions, I firmly rejected his argument that the offences in DAC-933269-2019 (forgery of the IRAS Notice of Assessment), DAC-933270-2019 (forgery of the CPF statement), and DAC-933266-2019 (cheating) are part of a single offence, thereby limiting the application of s 307 CPC in view of s 308[note: 258] CPC and necessitating that only one punishment be imposed. In my view, Kok's submissions are fundamentally flawed, as these offences are clearly distinct and separate. The cheating offence and the forgery offences are distinct criminal acts that fall under different sections of the Penal Code, and one is not a constituent or ingredient of the other. The forgery offences relate to the use of forged documents to facilitate the broader conspiracy to cheat Maybank, whereas the cheating charge encompasses a wider range of deceitful conduct aimed at defrauding the bank. Furthermore, Kok's involvement extended beyond merely using forged documents. He actively participated in various aspects of the conspiracy, including meeting with the seller Yeo, collecting cashback, and giving detailed instructions to the conveyancing secretary, Angela Veronica, on managing the transaction to avoid breaching conveyancing timelines. This broader pattern of conduct further distinguishes the cheating offence from the forgery offences. Contrary to Kok's submissions, the acts referred to in DAC-933269-2019 and DAC-933270-2019 (the submission of the forged NOA and CPF statement to Maybank) do not constitute a single transaction giving rise to several offences of a different character. Instead, these offences represent separate and distinct criminal acts that justify separate punishments. Therefore, I ruled that separate sentences can and should be imposed for each of Kok’s 3 offences with at least two of the sentences to run consecutively under s 307 CPC in that Kok’s sentence of 4 years’ imprisonment for his cheating charge is to run consecutively with the sentence of 6 months’ imprisonment for the forged documents charge in DAC-933269-2019, resulting in an aggregate or global sentence of 4 years and 6 months’ imprisonment to be imposed on him. In arriving at this decision, I took into account and applied the clear judicial guidance on the proper interpretation and application of ss 307(1) and 308 CPC from the following cases referred to by Kok and the Prosecution:

(a)     In Lim Woon Cheng Anthony v PP [1997] 3 SLR(R) 123, the High Court held at [44] that s 308 CPC is applicable only where there is a repetition in the same transaction of several acts, each amounting to the same offence. It does not apply where, in a single transaction, it may give rise to several offences of a different character, each complete in itself and distinct from the other.

(b)     In Shouffee, the High Court held (at [24]) that “as long as the charges have been correctly framed, each separate charge will have been brought in respect of a ‘distinct offence’ for the purposes of s 307(1) CPC”.

(c)     In Xia Qin Lai v PP [1999] 3 SLR(R) 257, the High Court held (at [18]) that distinct offences were offences that were “not in any way interrelated” and even if they were, they could also still be distinct depending on the circumstances of the case, i.e., a series of offences of the same or similar character or arising from the same transaction could also be distinct.

(d)     In Zeng Guoyuan v PP [1997] 2 SLR(R) 999, the High Court laid down the correct approach to ascertain the applicability of s 308 CPC, i.e. to determine whether separate offences arises out of one transaction or whether the entire transaction is in reality one offence. Where it is the former, s 308 CPC is not applicable and the issue is which sentences are to run concurrently/consecutively under s 307 CPC. Thus, ss 307 and 308 CPC work in tandem and do not circumscribe the operations of either provision. Where there are distinct offences, s 307 CPC operates, where the offences are not distinct, s 308 CPC operates.

(e)     In Tham Wing Fai Peter v PP [1988] 1 SLR(R) 349, the High Court at [66] held in obiter that s 308 CPC would apply if the appellant was charged with forging the company seal and the director’s signature, in addition to forging the share certificates since the share certificates necessitated the affixing of the director’s signature and seal. This is unlike the present case where the use of forged documents were the way in which the APs chose to support their false representation to Maybank in respect of their conspiracy to cheat. They could have very well cheated Maybank without the use of the forged income documents but since they have chosen to do so, they must be punished for it. Further, the two forged document offences are also distinct from each other, since they concern the use of different forged documents. In my view, Kok’s submissions that unlike Kok’s case, the offender in Tham Wing Fai Peter was not charged, convicted and/or sentenced separately for using the forged documents to dishonestly induce banks into disbursing the loan are matters for the Public Prosecutor to decide and do not support Kok’s interpretation and application of s 308 CPC to his case.

(M)   CONCLUSION ON SENTENCE

37     Having regard to above sentencing considerations, precedents and principles well as the forgoing reasons on the appropriate individual and global sentence to be imposed on BJ, Kok and Sufandi for the offences committed respectively by each of them, I sentenced each of them as follows:

(a)      BJ’s individual and aggregate sentence

Charge

Offence

Sentence of Imprisonment

DAC-933252-2019

s 420 r/w s 109 PC

6 years

DAC-933256-2019

s 471 r/w s 465 r/w s 109 PC

6 months (consecutive)

DAC-933257-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933254-2019

s 420 r/w s 109 PC

7 years

(consecutive)

DAC-933261-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933262-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933263-2019

s 471 r/w s 465 r/w s 109 PC

6 months

Aggregate or global sentence

7 years and 6 months imprisonment

 



(b)      Kok’s individual and aggregate sentence

Charge

Offence

Sentence of imprisonment

DAC-933266-2019

s 420 r/w s 109 PC

4 years

(Consecutive)

DAC-933269-2019

s 471 r/ws 465 r/ws 109 PC

6 months

(Consecutive)

DAC-933270-2019

s 471 r/ws 465 r/ws 109 PC

6 months

Aggregate or global sentence

4 years and 6 months’ imprisonment

 



(c)      Sufandi’s individual and aggregate sentence

Charge

Offence

Sentence of Imprisonment

DAC-933283-2019

s 420 r/w s 109 PC

5 years

DAC-933286-2019

s 471 r/w s 465 r/w s 109 PC

6 months (consecutive)

DAC-933287-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933284-2019

s 420 r/w s 109 PC

6 years

(consecutive)

DAC-933288-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933289-2019

s 471 r/w s 465 r/w s 109 PC

6 months

DAC-933290-2019

s 471 r/w s 465 r/w s 109 PC

6 months

Aggregate or global sentence

6 years and 6 months imprisonment

 



38     In my view, the above global sentence which I have imposed on BJ, Kok and Sufandi respectively was not manifestly excessive or inadequate, but wholly appropriate and commensurate with the nature and extent of their respective culpabilities, and was a sufficient deterrent sentence tempered with proportionality without the effect of a crushing sentence.

[note: 1]S 420 of the Penal Code (Chapter 224, 2008 Revised Edition) :“Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.”S 109 of the Penal Code (Chapter 224, 2008 Revised Edition):“Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for punishment of such abetment, be punished with the punishment provided for the offence.”

[note: 2]S 471 of the Penal Code (Chapter 224, 2008 Revised Edition) states:“Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or forged electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”S 465 of the Penal Code (Chapter 224, 2008 Revised Edition) states:“Whoever commits forgery shall be punished with imprisonment for a term which may extend to 4 years, or with fine, or with both.”

[note: 3]PS1.

[note: 4]PS1 at [34].

[note: 5]PS2.

[note: 6]See Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 6198 (“Chai Chien Wei Kelvin”)

[note: 7]See Sulaiman Bin Jumari v PP [2021] 1 SLR 557 (“Sulaiman”),

[note: 8]NE, Day 23, 21 Nov 2022 at pp 1 to 121; Day 24, 22 Nov 2022 at pp 1 to 44; Day 24, 22 Nov 2022 at pp 46 to 76; Day 25, 23 Nov 2022 at pp 6 to 63, pp 64 to 82; and NE, Day 24, 24 Nov 2022 at pp 1 to 138.

[note: 9]NEs, Day 30 (15 June 2023), 69:20 – 22 (PW22 EIC).

[note: 10]as laid down in Haw Tua Tau v PP [1981-1982] SLR(R) 133 (“Haw Tua Tau”) at [15].

[note: 11]as laid down in Gunasegaran S/O Pavadaisamy v PP [1997] 2 SLR (R) 946 at [42] to [44]; Seaward III Frederick Oliver v PP [1994] 3 SLR(R) 89 at [28]; definitions of the terms ‘dishonestly’ and ‘fraudulently’ under ss 24 and 25 of the Penal Code.

[note: 12]as set out in PP v Yeo Choon Poh [1993] 3 SLR(R) 302 at [20]; Nomura Taiji & Ors v PP [1998] 1 SLR(R) 259 at [110]; and Er Joo Nguang and another v PP [2000] SGHC 60

[note: 13]In P65, P66 and P78.

[note: 14]See Exhibits P11, 13, 14 , 15, 85 and PS1 – Statement of Agreed Facts (“SOAF”) at [6b.]

[note: 15]In addition to the oral evidence adduced at the trial, see also the various conditioned statements in PCS-2 of PW8 Tan Poh Geok, PCS-5 of PW11 Mohamad Pauzi Ali; PCS-7 of PW13 Ammar Salim; PCS-4 of PW10 Leow; PCS-6 of PW12 Tay Han Liang;

[note: 16]Lai Kam Loy v PP [1993] 3 SLR(R) 143 at [31].

[note: 17]Nomura Taiji at [105] to [110].

[note: 18]Ang Ser Kuang v PP [1998] 3 SLR(R) 316 at [30]; Nomura Taiji at [110].

[note: 19]In P65, P66,P76, P78 and P85.

[note: 20]In P80

[note: 21]Hamzi’s statement in P76, Iswandi (PW16), Ammar Salim bin Ariff (PW13), Tan Poh Geok (PW8), Mohamad Pauzi Ali (PW11), Leow Kwee Far Dorothy (PW10) and Tay Han Liang (PW12). In addition to the oral evidence adduced at the trial, see also PCS-7 of PW13 Ammar Salim; PCS-2 of PW8 Tan Poh Geok; PCS-5 of PW11 Mohamad Pauzi Ali; PCS-7 of PW13 Ammar Salim; and PCS-4 of PW10 Leow.

[note: 22]See exhibits P11; P40, P41, P42, P85; PS1 – SOAF at [20(b)]

[note: 23]P54; P56; P58; P57; PW22; NEs, Day 30, p 47 line 18 to p48 line 2 (EIC of Gobi); NEs, Day 30, p 53 line 23 to 25 (EIC of Gobi); P52; PW6; NEs, Day 11 (25 May 2022), p 40 lines 26 to p 42 lines 9 (EIC of Rohana”); P76 at Q196.

[note: 24] The written submissions filed by the parties for the main trial are as follows:(a)Prosecution’s Closing Submissions (PCS) dated 19 February 2024;(b)Prosecution’s Reply Submissions (PRS) dated 18 April 2024;(c)Prosecution’s Submissions (PS(CPCIA)) on section 135 of the Criminal Procedure Code 2010 and section 40 of the Interpretation Act dated 26 April 2024;(d)The closing submission of Counsel for BJ dated 1 March 2024 (“DCS-1”).(e)The closing submissions of Counsel for Kok, Haron and Juma’at dated 20 February 2024 (“DCS-2”).(f)Sufandi’s closing submissions filed on 15 March 2024 (“DCS-3”).(g)The reply submissions of Counsel for BJ dated 18 April 2024 (“DCS-4”).(h)Submissions of Counsel for BJ on section 135 of the CPC and section 40 of the Interpretation Act dated 26 April 2024. (“DCS-5”).(i)The reply submissions of Counsel for Kok, Haron and Juma’at dated 2 May 2024 (“DCS-6”).

[note: 25]DCS-1 at [16]-[25].

[note: 26]DCS-1 at [16]-[35].

[note: 27]PRS at [4] to [21].

[note: 28]DCS-1 at [16]-[25].

[note: 29]DCS-1 at [18]-[20] and [27]-[33].

[note: 30]See Prosecution’s Opening Statement at [10].

[note: 31]PCS at [55(b)] and [108(b)].

[note: 32]See Prosecution’s Opening Statement at [9], [20] and [31] and [22] and [32].

[note: 33]Prosecution’s Opening Statement at [16]–[17]; [21] and [38]–[41].

[note: 34]DCS-1 at [20].

[note: 35]PRS at [14] to [17].

[note: 36]DCS-1 at [26], [34]-[35].

[note: 37]S 40 of the Interpretation Act 1965 states as follows: “Where any act or omission constitutes an offence under 2 or more written laws, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under any one of those written laws but shall not be liable to be punished twice for the same offence.”

[note: 38]PRS at [18] to [21].

[note: 39]S 135 states as follows: “If the alleged acts constitute an offence falling within 2 or more separate definitions of any law by which offences are defined or punished, then the person accused of them may be charged with and tried at one trial for each of those offences.”

[note: 40]Illustration (d) states as follows: “A dishonestly uses a forged document as evidence to convict B, a public servant, of an offence under section 167 of the Penal Code 1871. A may be separately charged with offences under sections 471 (read with section 466) and 196 of the Penal Code 1871.”

[note: 41]The District Court’s decision was upheld on appeal by the High Court which held that there was no double counting because the elements of the two offences were separate and distinct and it followed that there was no double penalization : see Merlur Binte Ahmad v PP [2024] SGCA 8 at [15] where the Court of Appeal agreed with the High Court and dismissed the Accused’s application for permission to refer four questions to the Court of Appeal which included the question of “whether the Possession Charges and the Removal Charges resulted in double counting which penalised the applicant twice ?”.

[note: 42]DCS-5.

[note: 43]PS(CPCIA) at [16] to [22].

[note: 44]Notes of Evidence (“NEs”), Day 3 (19 Jan 2022) at pp 14 to 127.

[note: 45]NE, Day 4, 20 January 2022 at pp 1 to 142.

[note: 46]NEs, Day 5, 21 January 2022 at pp 1 to 106; Day 6, 24 January 2022 at pp 1 to 72; Day 7, 25 January 2022 at pp 12 to 27.

[note: 47]NEs, Day 7, 25 January 2022 at pp 28 to 55; Day 8, 26 January 2022 at pp 1 to 111.

[note: 48]PCS at [37].

[note: 49]NEs, Day 8, 26 January 2022 at pp 112 to 131; Day 9, 27 January 2022 at pp 1 to 70; Day 10, 24 May 2022 at pp 8 to 110.

[note: 50]NE, Day 14, 22 August 2022 at pp 13 to 70.

[note: 51]NEs, Day 14, 22 August 2022 at pp 71 to 95; Day 15, 23 August 2022 at pp 1 to 60.

[note: 52]NE, Day 15, 23 August 2022 at pp 66 to 102.

[note: 53]NE, Day 14, 22 August 2022 at pp 4 to 13.

[note: 54]P11; P15; P14; P13; PS1 – Statement of Agreed Facts (“SOAF”) at [6b.]; P85, PBOD, Vol 3, p 929; PCS-2 of PW8 Tan Poh Geok.

[note: 55]PCS-4 of PW10 Leow Kwee Far Dorothy (“Leow”); PCS-4 of Leow and PCS-6 of PW12 Tay Han Liang(“Tay”).

[note: 56]PS1 at [10].

[note: 57]NE, Day 13, 27 May 2022, pp 69 to 96.

[note: 58]PCS-1, Para 4(a)

[note: 59]“Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant32.—(1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally, in a document or otherwise), are themselves relevant facts in the following cases:(j)when the statement is made by a person in respect of whom it is shown is dead…”;

[note: 60]PCS at [68].

[note: 61]NEs, Day 11, 25 May 2022 at pp 1 to 65; Day 12, 26 May 2022 at pp 1 to 63; Day 13, 27 May 2022 at pp 13 to 68.

[note: 62]NE, Day 15, 23 August 2022 at pp 64 to 66.

[note: 63]PCS-5 Para 3-6.

[note: 64]NEs, Day 16, 24 August 2022 at pp 59 to 106; Day 17, 25 August 2022 at pp 2 to 81.

[note: 65]at pages 210, 211, 212, and 223 of the PBOD.

[note: 66]NE, Day 18, 12 September 2022 at pp 3 to 54.

[note: 67]NEs, Day 18, 12 September 2022 at pp 56 to 93; Day 19, 13 September 2022 at pp 1 to 60; Day 20, 14 September 2022 at pp 2 to 12.

[note: 68]NE, Day 21, 15 September 2022 at pp 1 to 34.

[note: 69]NEs, Day 21, 15 September 2022 at pp 38 to 82; Day 22, 16 September 2022 at pp 1 to 79.

[note: 70]NEs, Day 15, 23 August 2022 at pp 103 to 122; Day 16, 24 August 2022 at pp 1 to 59.

[note: 71]NEs, Day 14, 22 August 2022 at pp 71 to 95; Day 15, 23 August 2022 at pp 1 to 60.

[note: 72]P37, PBOD, Vol 1, at p 131, and [6] of PCS-7; [8] of PCS-7.

[note: 73][9] of PCS-7; [13] of PCS-7.

[note: 74]P42, PBOD, Vol 1, p 315; P43, PBOD, Vol 1, p 314; P40, PBOD, Vol 1, p 313; [12] of PCS-4; [14] of PCS-4.

[note: 75][15] of PCS-7.

[note: 76]NE, Day 13, 27 May 2022, pp 69 to 96.

[note: 77]NEs, Day 30, 15 June 2023 at pp 39 to 88; Day 32, 10 July 2023 at pp 4 to 98.

[note: 78]PCS-8.

[note: 79]Farida Begam d/o Mohd Artham v PP [2001] 3 SLR(R) 592 at [9].

[note: 80]PCS at [52].

[note: 81]PCS at [55].

[note: 82]DCS-3 at [89] and [93].

[note: 83]PRS at [69] to [70].

[note: 84]DCS-3 at [89], [93] and [99].

[note: 85]PRS at [71].

[note: 86]PCS at [40(d)(ii)] and at [43] and [40](a)(ii).

[note: 87]DCS-2 at [83] to [88] and DCS-6 at [B9].

[note: 88]PRS at [75].

[note: 89]This is reflected in Order 64 rule 7of the 2014 Rules of Court which states as follows:“7.(1) Every solicitor representing any party in any cause or matter shall obtain from such party or his duly authorised agent a warrant to act for such party, either generally or in the said cause or matter. (2) The absence of such warrant shall, if the solicitor’s authority to act is disputed, be prima facie evidence that he has not been authorised to represent such party.”

[note: 90]PRS at [75].

[note: 91]PCS at [40] to [41] and PRS at [76].

[note: 92]PCS at [149] and [166] and PRS at [77].

[note: 93]PCS at [107].

[note: 94]PCS at [81] – [88].

[note: 95]PCS at [108].

[note: 96]PCS at [114] to [117].

[note: 97]PCS at [114] to [119].

[note: 98]Sections 9, 11(b) and 158 of the Evidence Act provide as follows:“Facts necessary to explain or introduce relevant facts9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.When facts not otherwise relevant become relevant11. Facts not otherwise relevant are relevant —(a)if they are inconsistent with any fact in issue or relevant fact;(b)if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.Questions tending to corroborate evidence of relevant fact admissible158.—(1) When a witness whom it is intended to corroborate gives evidence of any relevant fact, the witness may be questioned as to any other circumstances which he or she observed at or near to the time or place at which such relevant fact occurred, if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he or she testifies.”

[note: 99]DCS-4 at [25].

[note: 100]DCS-3 at [240]-[252].

[note: 101]PCS at [57].

[note: 102]PCS at [59] to [62].

[note: 103]PCS at [163].

[note: 104]DCS-3 at [147(f)].

[note: 105]PRS at [95] to [98]; PCS at [108](b)].

[note: 106]P86 – Statement of Sufandi dated 2 October 2015 at Q288 and Q290; P66 – Statement of Sufandi dated 29 July 2016 at Q1133, Q1134 and Q1136,

[note: 107]See Ng Kwee Leong v PP [1998] SGHC 294 where the High Court held that the trial judge made no error of law in relying on the testimony of PW1 although he lied about the appellant attempting to assault him as the trial judge had given due consideration to PW1’s lie in assessing the credibility and veracity of his evidence.

[note: 108]Chandroo Subramaniam v PP [2021] SGCA 11092 at [39].

[note: 109]DCS-2 at [64] to [68] DCS-3 at [75.b.]-[75.c.] and DCS-6 at [B5] to [B7].

[note: 110]PCS at [32] to [33] and PRS at [60].

[note: 111]DCS-3 at [63.b.iv.] and DCS-6 at [B7].

[note: 112]PCS at at [33] and PRS at [61].

[note: 113]DCS-3 at [63.b.ii.] and [74.h.].

[note: 114]PRS at [61a.].

[note: 115]DCS-3 at [63.b.i.].

[note: 116]PRS at [62].

[note: 117]PCS at [34] to [35].

[note: 118]DCS-6 at [B8].

[note: 119]DCS-3 at [63.b.vi.2]

[note: 120]PRS at [63] to [64].

[note: 121]DCS-2 at [69],

[note: 122]PRS at [65a]

[note: 123]DCS-2 at [71] to [72] and DCS-3 at [63.b.v.2.]

[note: 124]PCS at [34] to [35] and PRS at [65b].

[note: 125]PCS at [53] to [54].

[note: 126]DCS-6 at [B11].

[note: 127]PCS at [73] to [75].

[note: 128]PCS at [89] to [90].

[note: 129]PRS at [120].

[note: 130]DCS-3 at [172(b)(iii)] and DCS-3 at [172(c)].

[note: 131]DCS-3 at [172(b)(i)] and [172(b)(ii)].

[note: 132]PRS at [116] to [118].

[note: 133]DCS-3 at [172(b)(i)] and [172(b)(ii)].

[note: 134]PRS at [118].

[note: 135]PCS at [112] to [113].

[note: 136]As Haron and Juma'at did not file any appeal against their respective convictions for the fraudulent deed offences under s 423 PC, I did not include a summary of their evidence, my reasons in these Grounds of Decision why I found them to be untruthful witnesses and rejected their respective defences to the aforesaid offences.

[note: 137]NEs, Day 35, 4 Oct 2023; Day 36, 5 Oct 2023; Day 37, 6 Oct 2023; and Day 38, 9 Oct 2023.

[note: 138]PCS at [128] to [129].

[note: 139]PCS at [130] to [131].

[note: 140]PCS at [133].

[note: 141]PCS at [134].

[note: 142]PCS at [132].

[note: 143]DCS-1 at [45], [46], [48] and [53].

[note: 144]PRS at [93].

[note: 145]PCS at [135].

[note: 146]NEs, Day 48 (20 Nov 2023), 106:24-27 (Sufandi’s XXN by DPP); NEs, Day 48 (20 Nov 2023), 107:1-108:17 (Sufandi’s XXN by DPP); NEs, Day 49 (21 Nov 2023), 6:5-6:10 (RXN of Sufandi).

[note: 147]PCS at [138] to [142].

[note: 148]DCS-1 at [36] and [41].

[note: 149]PCR at [48] to [54]; PCS at [51],[52],[55], [56] and [162].

[note: 150]PCS at [143] to [145] and PCR at [55] to [56].

[note: 151]PCS at [123].

[note: 152]DCS-1 and DCS-4.

[note: 153]NEs, Day 38, 9 Oct 2023; Day 39, 10 Oct 2023; Day 40, 23 Oct 2023.

[note: 154]DCS-6 at [20].

[note: 155]PCS at [151] to [164].

[note: 156]PCS at [155(a)] and [157].

[note: 157]PCS at [158].

[note: 158]PCS at [159] to [161].

[note: 159]PCS at [161].

[note: 160]PCS at [162].

[note: 161]PCS at [164].

[note: 162]PCS at [164].

[note: 163]DCS-2 at [89] to [96]; DCS-3 at [115] to [116].

[note: 164]PCS at [26] to [27] and [40 to [41] and PRS at [80 to [83].

[note: 165]DCS-2 at [98] to [104] and DCS-6 at [20].

[note: 166]PRS at [84] to [87].

[note: 167]P65 – Statement of Sufandi dated 8 June 2016 at Q784; P66 – Statement of Sufandi dated 29 July 2016 at Q987 to Q 988; 1003; Q1007 to Q1010 and Q1015.

[note: 168]PCS at [165] to [168].

[note: 169]PCS at [166].

[note: 170]PCS at [167] to [168].

[note: 171]PCS at [146] and [168].

[note: 172]NEs, Day 46, 14 Nov 2023; Day 47, 15 Nov 2023; Day 48, 20 Nov 2023; Day 49, 21 Nov 2023.

[note: 173]PCS at [235] and [247].

[note: 174]PCS at [238].

[note: 175]PCS at [240].

[note: 176]PCS at [241].

[note: 177]PCS at [244] to [245].

[note: 178]PCS at [247].

[note: 179]DCS-3 at [12].

[note: 180]PCS at [246] to [247].

[note: 181]DE18 – Statement of Sufandi dated 29 April 2015 at 1045 hours at Q42; DE19 – Statement of Sufandi dated 29 April 2015 at 1445 hours at Q53 to Q54 and Q69; DE21 – Statement of Sufandi dated 7 October 2015 at 0915 hours at Q445, Q448, to Q449 and Q457; P87 – Statement of Sufandi dated 7 October 2015 at 1400 hours Q500 to Q503.

[note: 182]DCS-3 at [88(a)].

[note: 183]PCR at [40] to [43].

[note: 184]NE, Day 8 (26 Jan 2022), 11:40 am, lns 6 – 28.

[note: 185]NE, Day 8 (26 Jan 2022), 3:27 pm, ln 28 – 3:28 pm, ln 32; NE, Day 8 (26 Jan 2022), 3:29 pm, lns 27 – 29; NE, Day 8 (26 Jan 2022), 3:43 pm, lns 19 – 32.

[note: 186]PCS at [243]–[245].

[note: 187]DCS-3 at [88(c)]

[note: 188]PCR at [44] to [45].

[note: 189]The contents of DE-15 and DE-16. DE-15 only contains a series of messages sent by Sufandi with no reply from the recipient. There is nothing in Sufandi’s message that indicates any form of fear. Instead, in DE-15, Sufandi is: (i) inviting Naseeruddin for a meeting;(ii) openly mocking Naseeruddin – “Mother fucker. Come la meet me .. no valls. Mother chee bye. . You fuck your own mother. Read than don’t reply.”; (iii) outrightly threatening Naseeruddin with physical harm – he sent Naseeruddin a photo of a main with stitches on his scalp and added “Pray bro .. next”. Likewise, in DE-16, although Naseeruddin can be seen threatening Sufandi and his family, “Your whole family heads will roll”, Sufandi’s response shows that he did not take any of Naseeruddin’s threats seriously. Instead, he laughed off the threats, “Boring ar. Dont talk la much la … sore loser … I still have balls show my face but not you … hahahahhaha.” (emphasis in bold added)

[note: 190]DCS-3 at [88(c)].

[note: 191]PCR at [46] to [47]; and PCS at [247].

[note: 192]DE-14 at 27; DE-14 at [52]-[53]; P67, PBOD, Vol 3, p 1 at p 679 at Q1271 and p 684 at Q1304 to Q1309; DE-15 at pg 1; DE-15 at pg 5; DE-15 at pg 6; DE-16 at pg 8; DE-16 at pg 9.

[note: 193]DCS-3 at [12] and [88].

[note: 194]wherein Naseeruddin tells Sufandi, “I will make sure EVERYBODY know how you manipulate people and CHEAT BANK and cheat other people around you, and how you cheat and manipulate all friends and relative who help you!”, and Sufandi replies, “What you got if everyone know? Everyone know already. It’s a mistake and I will need to face the sentence. And I will face it like a man with balls. Not like you no balls hide behind social media, ok lah, bye..” (emphasis in bold added)

[note: 195]PCS at [249].

[note: 196]DCS-1, DCS-2, DCS-3, DCS-4 and DCS-6

[note: 197]DCS-1 at [36]-[40]; DCS-1 at [38]; DCS-2 at [52]-[57].

[note: 198]PRS at [23] to [29].

[note: 199]PP v Singh Kalpanath [1995] 3 SLR(R) at 158 at [88]; PCR at [24].

[note: 200]PCR at [26]; PCS at [50]–[58] and [62]; [105]–[110] and [114]–[115].

[note: 201]See Questions 756-766 and 946-948 in P65.

[note: 202]DCS-2 at [15]-[30]; DCS-2 at [30]-[50].

[note: 203]DCS-3 at [122]-[130].

[note: 204]PRS at [88] to [91].

[note: 205]DCS-3 at [201(d)].

[note: 206]PRS at [124] to [125].

[note: 207]PCS at [228] to [229].

[note: 208]DCS-3 at [10],[12], [106] to [109], [114] to [116], [148], [217] to [218],[225], [230], [235] to [236], [260] to [271].

[note: 209]Sufandi’s submissions in relation to Haron and Jumaat have been excluded since they did not file any appeal against their respective convictions and sentences.

[note: 210]See Gunasegaran s/o Pavadaisamy v PP [1997] 2 SLR (R) 9465 (“Gunasegaran”) at [42] to [44] and Seaward III Frederick Oliver v PP [1994] 3 SLR(R) 896 at [28].

[note: 211]Leck Kim Koon v PP [2022] 3 SLR 1050.

[note: 212]See Gunasegaran at [53].

[note: 213]See Lee Yuen Hong v PP [2001] 1 SLR(R) 6049 at [38]and Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619

[note: 214]See PP v Yeo Choon Poh [1993] 3 SLR(R) 30210 at [20].

[note: 215]See Er Joo Nguang v PP [2000] 1 SLR(R) 77011 at [35].

[note: 216]See Nomura Taiji & Ors v PP [1998] 1 SLR(R) 25912 at [110].

[note: 217]See Ang Ser Kuang v PP [1998] 3 SLR(R) 31613 at [30].

[note: 218]As Haron and Juma'at did not file any appeal against their respective convictions for their fraudulent deed offences under s 423 PC, I did not include my finding of facts in these Grounds of Decision for their aforesaid offences.

[note: 219]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q759 and Q760.

[note: 220]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q852 and Q861 and P66 – Statement of Sufandi dated 29 July 2016 in his answers Q964 and Q965.

[note: 221]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q965 to Q968 and Q1028 to Q1029; P87 – Statement of Sufandi dated 7 October 2015 in his answers to Q541 to Q542.

[note: 222]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q853; P66 – Statement of Sufandi dated 29 July 2016 in his answers Q989

[note: 223]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q791 and Q792; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1016 to Q1021 and to Q1024 to Q1026.

[note: 224]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q784; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q987 to Q988, Q1003, Q1007 to Q1010, and Q1015.

[note: 225]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1043 and Q1044; P67 – Statement of Sufandi dated 2 December 2016 in his answers to Q1271.

[note: 226]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1040 and Q1041; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1055 to Q1057.

[note: 227]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q995, Q997, Q1001 and Q1018.

[note: 228]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q759 to Q760.

[note: 229]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q840, Q843 to 844, and Q1069.

[note: 230]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q835; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1120, Q1122, Q1143 to Q1144.

[note: 231]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q833 and Q834.

[note: 232]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q921, Q922 and Q 924.

[note: 233]P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1071 to Q1073; Q1134, Q1163 and Q1165 to Q1166

[note: 234]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q832.

[note: 235]P65 – Statement of Sufandi dated 8 June 2016 in his answers to Q784; P66 – Statement of Sufandi dated 29 July 2016 in his answers to Q1075to Q1077, Q1079 and Q1085.

[note: 236]P78 – Statement of Sufandi dated 11 April 2017 in his answers to Q1368, Q1371 to Q1379; P79 – Statement of Sufandi dated 29 April 2019 in his answers to Q1362 to Q1364 and Q1370 to Q 1372.

[note: 237]These are as follows:(a) Prosecution’s address on sentence dated 28 June 2024 and Prosecution’s submissions on the totality principle and sections 307 & 308 of the Criminal Procedure Code 2010 dated 19 July 2024;(b) BJ’s plea in mitigation and sentencing submissions dated 28 June 2024; (c) Joint mitigation plea and sentencing submissions dated 1 July 2024 for Kok, Harin and Juma’at; reply dated 10 July 2024 and further submissions dated 25 July 2024;(d) Mitigation reply of Sufandi bin Ahmad received on 17 July 2024.

[note: 238]As Haron and Juma'at did not file any appeal against their respective convictions and sentences for their fraudulent deed offences under s 423 PC, I did not include my reasons in these Grounds of Decision for the sentences imposed on each of them for the aforesaid offences.

[note: 239]Leck Kim Koon v PP [2022] 3 SLR 1050 at [46] to [48].

[note: 240]PP v Law Aik Meng [2007] 2 SLR(R) 8141 (“Law Aik Meng”) at [24(e)]).

[note: 241]PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 3342 (“Fernando Payagala”) at [1]).

[note: 242]Fernando Payagala at [44]; Than Stenly Granida Purwanto v PP [2003] 3 SLR(R) 57630 at [17] and [18].

[note: 243]Moganaruban s/o Subramaniam v PP [2005] 4 SLR(R) 12131 at [57]).

[note: 244]Fernando Payagala at [45].

[note: 245]PP v Tan Fook Sum [1999] 1 SLR(R) 10223 at [28]; Fernando Payagala at [39] to [41]).

[note: 246]Zhao Zhipeng v PP [2008] SGHC 12532 at [37].

[note: 247]Fernano Payagala at [44].

[note: 248]Chong Han Rui v PP [2016] SGHC 25.

[note: 249]PP v Ramlee [1998] 3 SLR 539 at [7].

[note: 250](a) In PP v Cheong Sing Whee [2005] SGDC 124 (“Cheong”), the offender pleaded guilty to conspiring with another to cheat DBS into disbursing a loan of $1,540,000 to purchase a machinery by submitting a letter falsely stating that the difference between the cost of the machinery and the loan has been paid. DBS was able to recover the machinery and sold it off, with an unmitigated loss of $676,320. The offender faced another charge involving $1,940,000 that was taken into consideration. The offender was sentenced to three years’ imprisonment which sentence was reduced on appeal to two years’ imprisonment. (emphasis in bold mine)(b) In PP v Winnie Goh Li Ching [2011] SGDC 428 (“Winnie Goh”), the offender pleaded guilty to 33 charges for being part of a conspiracy to cheat the banks into disbursing mortgage loans to individuals who did not meet the credit worthiness criteria, with 156 remaining charges taken into consideration. She was sentenced to 60 months imprisonment (5 years) globally, with the sentence ranging from six months to 18 months for sums involving $160,000 to $1,710,000. She was a Mobile Banking Executive with OCBC. She provided to real estate salespersons the indicative salary range that their genuine buyer should possess in order to be eligible for a mortgage loan. In turn, the salespersons provided her with forged income documents as supporting documents. She then processed these mortgage applications and OCBC disbursed 179 mortgage loans involving a total of $62,795,796. OCBC was able to foreclose on properties where the borrowers were unable to resell their properties and the unmitigated loss stood at $687,788.37. The offender was paid a commission of $44,632.57 from OCBC, $11,257.65 in referral fees from the salespersons and $90,000 from her accomplices. (emphasis in bold mine)

[note: 251]PP v Tan Fook Sum at [28]).

[note: 252]where the offender in Gunasegeran was convicted after trial of cheating a car buyer and using forged documents to obtain a loan from a credit company. In relation to the s 471 PC offence, the offender had used 4 different forged documents as stated in the charge for the offence and the High Court found that he had forged the documents and affirmed the sentence of 6 months’ imprisonment.

[note: 253]Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (“Shouffee”) at [54].

[note: 254]PP v Li Yong De [2021] SGDC 115 where the bank had disbursed at least $1,076,339 to the pawn shop during the relevant period which the offender then misappropriated and 6 years’ imprisonment was imposed on him; PP v Husniyati Binte Omar [2018] SGDC 255 where the offender cheated 89 victims to deliver a total of $1,796,474.44 to her with no restitution made and a global sentence of 93 months’ of 7.75 years’ imprisonment was imposed on her; PP v Neo Aileen [2013] SGDC 315 where the total loss was $1,297,000 (as at September 2011) with no restitution made and the offender was sentenced to a global sentence of 78 months’ or 6.5 years’ imprisonment.

[note: 255]Shouffee at [56].

[note: 256]Shouffee at [57].

[note: 257]S 307(1) CPC: “ Subject to subsection (2), if at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which the person is convicted must order the sentences for at least 2 of those offences to run consecutively.”

[note: 258]S308 CPC states as follows:“Limit of punishment for offence made up of several offences 308.—(1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the person who committed the offence must not be punished with the punishment of more than one of such offences unless it is expressly provided. (2) Where — (a)anything is an offence falling within 2 or more separate definitions of any law in force for the time being by which offences are defined or punished; or (b)several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person who committed the offence must not be punished with a more severe punishment than the court which tries the person could award for any one of such offences.”

"},{"tags":["Criminal Procedure and Sentencing – Sentencing","Criminal Procedure and Sentencing – Offences – Theft","Criminal Procedure and Sentencing – Law enforcement officer"],"date":"2024-10-15","court":"District Court","case-number":"District Arrest Case No 913757 of 2024 and 4 others, Magistrate's Appeal No 9171/2024/01","title":"Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh","citation":"[2024] SGDC 273","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32332-SSP.xml","counsel":["Mark Chia Zi Han (Attorney-General's Chambers) for the Public Prosecutor","Accused in person."],"timestamp":"2024-10-21T16:00:00Z[GMT]","coram":"Kenneth Chin","html":"Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh

Public Prosecutor v Muhammad Fadhil Bin Mohamed Salleh
[2024] SGDC 273

Case Number:District Arrest Case No 913757 of 2024 and 4 others, Magistrate's Appeal No 9171/2024/01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Kenneth Chin
Counsel Name(s): Mark Chia Zi Han (Attorney-General's Chambers) for the Public Prosecutor; Accused in person.
Parties: Public Prosecutor — Muhammad Fadhil Bin Mohamed Salleh

Criminal Procedure and Sentencing – Sentencing

Criminal Procedure and Sentencing – Offences – Theft

Criminal Procedure and Sentencing – Law enforcement officer

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9171/2024/01.]

15 October 2024

District Judge Kenneth Chin:

Introduction

1       It is trite that the hard-won reputation of law enforcement and security agencies in Singapore cannot be taken for granted but must instead be jealously protected. If, and when the personnel of such agencies break the law, especially when the offences were committed under the colour of office, they must be punished appropriately, and the imposed sentence must adequately reflect the damage that may be inflicted on the standing of all other law enforcement personnel and the institutions that they represent.[note: 1] The present case represents one such instance where a deterrent message must be sent to deter other like-minded offenders.

2       The accused, an Immigration and Checkpoints Authority (“ICA”) officer at the material time, was the duty officer stationed at the departure hall in Changi Airport and had stolen from five different foreign travellers departing Singapore while he was searching through their belongings in execution of his official duties.

3       On 26 August 2024, the accused pleaded guilty to three proceeded charges of theft under s.379 of the Penal Code 1871 (“Penal Code”). Two similar charges were taken into consideration (“TIC”) for the purpose of sentencing. I sentenced the accused to a global custodial sentence of 14 months’ imprisonment as follows:

Charge No.

Offence Section

Sentence

DAC 913757-2024

Section 379 Penal Code

Stealing cash of $400 from one Chou Thanyachanok

Eight (8) months’ imprisonment

(consecutive)

DAC 913760-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Zhu Junwu

Six (6) months’ imprisonment

DAC 913761-2024

Section 379 Penal Code

Stealing cash of at least $100 from one Le Thi Ly

Six (6) months’ imprisonment

(consecutive)

DAC 913758-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Mai Nhat Quynh Nhu

TIC

DAC 913759-2024

Section 379 Penal Code

Stealing cash of at least $50 from one Le Trung Kien

TIC



4       Being dissatisfied, the accused has appealed against the sentences imposed.

5       The sentence has been stayed and the accused is currently on bail pending appeal.

6       I now set out the reasons for my decision.

The charges and prescribed punishment

7       The accused pleaded guilty to the following charges.

DAC-913757-2024

You… are charged that you, on 26 September 2023, at around 7.50pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of S$400 in the possession of one Chou Thanyachanok, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913760-2024

You… are charged that you, on 20 September 2023, at around 2pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Zhu Junwu, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913761-2024

You… are charged that you, on 28 September 2023, at around 1.45pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$100 that was in the possession of one Le Thi Ly, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

8       The following two charges were TIC for sentencing:

DAC-913758-2024

You… are charged that you, on 12 September 2023, at around 9.40am, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Mai Nhat Quynh Nhu, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

DAC-913759-2024

You… are charged that you, on 12 September 2023, at around 1.20pm, at the Immigration and Checkpoints Authority Biometric Database for Immigrant Clearance interview room, Changi Airport Terminal 4 Departure Hall, Singapore 819665, did commit theft of cash of at least S$50 that was in the possession of one Le Trung Kien, and you have thereby committed an offence punishable under s 379 of the Penal Code 1871

9       The prescribed punishment for each of the offences is a fine or imprisonment not exceeding three years, or both.

Facts

10     The following facts are summarised from the statement of facts, to which the accused admitted to without qualification.[note: 2]

11     On 1 October 2023, the complainant lodged a police report after having received feedback via the ICA website that a female Thai national had alleged that an ICA officer had taken her cash monies amounting to $400 on 26 September 2023.

12     Preliminary investigations revealed the ICA officer involved to be the accused. At the material time, the accused was employed as an immigrations officer with the ICA and was deployed at the departure hall of Changi Airport Terminal 4. The accused’s job as a duty officer was to attend to passengers who faced issues clearing the automated clearance lanes in the departure hall.

Facts pertaining to the 1st charge (DAC 913757-2024)

13     On 26 September 2023, the victim V1, a female Thai national, attempted to clear Singapore immigrations through the automated clearance lanes. V1 was flagged by the system, prevented from leaving through the automated lane, and was referred to the accused instead.

14     The accused escorted V1 into an interview room and instructed her to place her bags on the table before conducting a bag check in front of V1. During his check, the accused discovered that one of V1’s bags contained cash. He told V1 to sit down on a chair, directed her to look away from him, and to look towards the wall instead. The accused then continued to search through V1’s bags while conversing with her. When V1 turned towards the accused, she was instructed to look back at the wall. Investigations revealed that such procedure did not adhere to ICA’s standard practice.

15     While V1 was facing the wall, the accused took cash of $400, rolled the cash into his palm and slipped it into his pocket. The accused subsequently allowed V1 to leave the interview room, and she departed Singapore.

16     After departing Singapore, V1 discovered her missing cash and made a report through the ICA website.

Facts pertaining to the 4th charge (DAC 913760-2024)

17     On 20 September 2023, the victim V4, a male Vanuatu national failed to clear Singapore immigrations through the automated clearance lanes and was referred to the accused instead.

18     The accused escorted V4 into an interview room and instructed V4 to lay out his belongings together with his backpack on the table. V4 complied with the instructions and the accused proceeded to check V4’s belongings which included cash monies. When the accused counted V4’s cash in front of V4, the accused performed a sleight of hand and tucked several notes into his right hand before putting the monies into his pocket. As V4 was distracted repacking his belongings back into his backpack, he did not notice this.

19     The accused subsequently allowed V4 to leave the interview room, and he departed Singapore.

20     The accused admitted to taking at least $50 from V4’s stack of cash.

Facts pertaining to the 5th charge (DAC 913761-2024)

21     On 28 September 2023, the victim V5, a female Vietnamese national similarly failed to clear Singapore immigrations through the automated clearance lanes and was referred to the accused instead.

22     The accused escorted V5 into an interview room and instructed V5 to place her bag on the table. Whilst checking through V5’s belongings, the accused discovered a stack of $100 notes in a bag, removed it from the bag, and started to count it in front of V5 before putting the cash back into the bag.

23     The accused then directed V5 to open her suitcase. V5 complied and squatted on the floor to open her suitcase pursuant to the accused’s directions. While V5’s attention was diverted in getting her suitcase ready for inspection, the accused reached into the bag on the table, removed several notes and slipped the notes into his pocket. The accused then glanced into V5’s suitcase before telling her to pack up her belongings.

24     The accused subsequently allowed V5 to leave the interview room, and she departed Singapore.

25     The accused admitted to taking at least $100 from V5.

26     The accused’s actions were captured by CCTV in the interview rooms, and he admitted to the offences.

27     In total, the accused stole at least $650 from five victims. No restitution had been made.

Antecedents

28     The accused had no prior antecedents.

Parties’ submissions

Prosecution’s submission on sentence

29     The Prosecution submitted for a global custodial sentence of 13 to 15 months’ imprisonment with the following breakdown:

(a)     DAC 913757-2024 – 7 to 8 months’ imprisonment (consecutive)

(b)     DAC 913760-2024 – 6 to 7 months’ imprisonment (consecutive)

(c)     DAC 913761-2024 – 6 to 7 months’ imprisonment (concurrent)

30     In support of this position, the Prosecution made the following arguments:[note: 3]

(a)     General deterrence was the dominant sentencing consideration in the present case. When law enforcement officers offend in abuse of trust and reliance placed in them, a deterrent sentence was warranted.[note: 4] The accused had also tarnished Singapore’s reputation as an international travel hub.[note: 5]

(b)     There was the presence of the following aggravating factors:

(i)       The accused committed multiple offences;

(ii)       The accused targeted foreigners about to depart Singapore and who were vulnerable being unfamiliar with Singapore’s laws and processes;

(iii)       The offences were premeditated as evidenced by how the accused deliberately distracted the victims with his directions to either look away or to engage in other tasks;

(iv)       The accused abused his position of authority and trust as the victims complied with his directions without question and allowed the accused to access their belongings, only for the accused to steal from them;

(v)       The accused was motivated by personal gain.[note: 6]

(c)     There were two identical TIC charges;[note: 7]

(d)     The Prosecution’s position was in line with case precedents:

(i)       In PP v Amir Hamzah bin Mohammad [2012] SGHC 165, the High Court noted that in cases of theft by police officers, the sentences imposed have been between four to six months’ imprisonment;[note: 8]

(ii)       The present case is more severe than Fackir Mohamed Shariff v PP [2003] SGDC 189 (“Fackir”) where the offender, an auxiliary police officer, stole items worth $25 from the building that he was supposed to safeguard. The offender was sentenced to three months’ imprisonment.[note: 9]

(iii)       The present case is more severe than PP v Mohammad Yus bin Ismail [2005] SGDC 168 (“Mohammad Yus”) where the offender, a police officer, stole an ATM card from a suspect that he was investigating and used the ATM card to steal $1,000 on each of two occasions. The offender was sentenced to six months’ imprisonment for stealing the ATM card and eight months’ imprisonment for each of the theft charges where he stole $1,000, with a global custodial sentence of 14 months’ imprisonment.

(e)     Applying the totality principle, it was sufficient for the sentences of two of the charges to run consecutively, for a global custodial sentence between 13 to 15 months’ imprisonment.

Accused’s submission on sentence

31     The accused pleaded for leniency in seeking a lighter sentence and highlighted the following:

(a)     The accused was a first offender;

(b)     The accused was remorseful and pleaded guilty at first instance;

(c)     The accused was the sole breadwinner with two young children.

Decision on sentence

General deterrence as the predominant sentencing consideration

32     The accused in this case was a law enforcement officer, in immigration matters. Law enforcement officers are not only expected to enforce and maintain the law but are also expected to conduct themselves in a manner befitting of them to enforce such laws.[note: 10] This legitimacy to uphold the law demands high standards of honesty and integrity.

33     In PP v S Iswaran [2024] SGHC 251,[note: 11] Hoong J held that “trust and confidence in public institutions are the bedrock of effective governance, which can all too easily be undermined by the appearance that an individual public servant has fallen short of the standards of integrity and accountability”. The positive reputation of Singapore’s law enforcement agencies is a precious and hard-won asset that should be jealously protected, as it serves as the foundation upon which trust, credibility and success are built. Once tarnished, this reputation can be difficult, if not impossible, to fully restore. Damaged confidence in Singapore’s law enforcement agencies can have dire long-term consequences. Therefore, where the accused in this case has fallen short of the level of conduct expected of him and have committed criminal acts that could corrode the trust and confidence that has been reposed in him and the institution, this court should not hesitate to show its disapproval by imposing a sufficiently significant term of imprisonment. It is imperative that a deterrent sentence be imposed to deter similarly placed individuals from acting in disregard to the demands of their office. To lightly condone the present offences would no doubt diminish the public’s trust in Singapore’s law enforcement agencies, and this must not be allowed to happen.

34     For these reasons, general deterrence is undoubtedly the predominant sentencing consideration in this case.

There were multiple aggravating factors present

35     I further considered the following sentencing factors in determining the appropriate sentences:

(a)      Offences were committed under colour of office – The accused committed offences of theft whilst on active duty as a law enforcement officer. Committing offences under the colour of office is a particularly egregious form of misconduct as it involves the exploitation of a position of trust and authority for personal gain. As the duty ICA officer in charge of screening the foreign travellers departing Singapore, the accused held considerable authority over the victims as he was empowered to instruct these victims to subject their belongings to search. He was expected to exercise such powers responsibly and in accordance with the law. Instead, the accused abused his official powers which facilitated the commission of his theft offences by instructing the victims to carry out instructions which drew their attention away from his offending acts of theft. Such misconduct not only harm the direct victims but also tarnish the reputation of law enforcement agencies, damaging the social contract between ordinary citizens and those in power. The aggravating nature of such offences lie in the unequal power dynamic where the victims were exploited by the accused who was supposed to uphold the law. The potential erosion of public confidence in our public institutions demands stern accountability. As unscrupulous or corrupt officers may be especially well placed to abuse their positions of authority to commit such acts of theft or misappropriation if they are so inclined, it is necessary that a clear signal in sentencing be sent to deter like-minded persons who might contemplate such criminal acts.[note: 12]

(b)      Potential harm to Singapore’s reputation as an international travel hub – For some foreign travellers, their only interaction with Singapore’s law enforcement regime may only be with our ICA officers when they enter or depart Singapore through our borders. The accused, an ICA officer, represented Singapore’s law enforcement system to these travellers. In this case, where the accused who was tasked to protect Singapore’s borders offend against foreign nationals by stealing from those who visit our country, I agree with the Prosecution that the potential harm to Singapore’s global standing as an international travel hub cannot be understated.

(c)      Offences committed for personal benefit – I accepted the Prosecution’s submission that the accused had committed the offences for personal benefit. No restitution has been made.

(d)      Multiple offences committed with TIC charges present – This was not an isolated incident as the accused committed multiple offences on separate occasions against five different victims until he was caught. Apart from the three proceeded charges, there was the presence of two TIC charges. As made clear in PP v UI [2008] 4 SLR 500,[note: 13] where the TIC charges are similar in nature to the proceeded charges, there generally ought to be an increase in the sentence to be imposed for the proceeded charge. While it is not axiomatic that the court must increase the sentence imposed for the offences proceeded with where TIC offences are present, I am of the view that it would be appropriate in this case to do so, especially when considering the similar offences in their context of being committed in a serial fashion.

There was limited mitigating credit to be accorded to the accused

36     In mitigation, the accused highlighted that he was a first offender, which is often cited as a mitigating factor in sentencing. However, I accorded limited weight to this factor in this case for the following reasons:

(a)     First, it was precisely the accused’s clean record which allowed him to be placed in a position of trust and authority as a law enforcement officer. This made his abuse of his position more aggravated;

(b)     Second, I was of the view that the lack of antecedents carried little mitigating value in the face of serious offences and when there is a need for deterrence.

37     It is well accepted that an admission of guilt that reflects genuine remorse is a mitigating factor.[note: 14] However, the courts have also given little weight to an offender’s plea of guilt in cases where the offender was caught red-handed and has little choice but to plead guilty. In Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 at [14], Chan Sek Keong J (as he then was) commented:

…I do not dissent from the principle applied by the Senior District Judge that the voluntary surrender by an offender and a plea of guilty by him in court are factors that can be taken into account in mitigation as they may be evidence of remorse and a willingness to accept punishment for his wrongdoing. However, I think that their relevance and the weight to be placed on them must depend on the circumstances of each case. I do not see any mitigation value in a robber surrendering to the police after he is surrounded and has no means of escape, or much mitigation value in a professional man turning himself in in the face of absolute knowledge that the game is up. [emphasis added]

38     In this case, there was overwhelming evidence against the accused as he was caught “red-handed” on CCTV recording in the interview rooms and he had little choice but to plead guilty. Nevertheless, I accepted that the accused’s guilty plea did save some judicial resources and time and therefore after considering these factors in the round, I accorded the accused slight mitigating weight for his guilty plea.

39     It is trite law that save in exceptional or extreme circumstances, hardship to the offender’s family has little mitigating value as it is merely the natural consequence of the offender committing a crime.[note: 15] No such exceptional circumstances were brought to the court’s attention, and I therefore did not consider the accused’s highlighted family circumstances a valid mitigating factor.

The appropriate sentences

40     Notwithstanding the relatively small sum of monies stolen by the accused in the proceeded charges, after considering the aggravating factors highlighted above at [35], the appropriate sentences must nevertheless be substantial.

41     For the 4th (involving at least $50) and 5th charges (involving at least $100), the appropriate sentence in my view was six months’ imprisonment.

42     For the 1st charge (involving $400), the appropriate sentence must be higher than the sentence imposed for the 4th and 5th charges as it involves a larger amount of money stolen. Generally, in property offences, the higher the value involved, the stiffer the punishment, although the appropriate calibration is not necessarily a linear one. For the 1st charge (involving $400), the appropriate sentence in my view having considered that the stolen amount is almost four times the amount stolen in the 5th charge (involving at least $100), is eight months’ imprisonment.

The imposed sentences were in line with cited sentencing precedent

43     In Fackir, the offender, an auxiliary police officer, stole items worth $25 from the building that he was supposed to safeguard and was convicted of an offence under s.380 of the Penal Code. The offender was a first offender and was sentenced to three months’ imprisonment, which was affirmed on appeal.

44     I agreed with the Prosecution that the present case was more severe than Fackir and therefore should attract a higher sentence for the following reasons:

(a)     The quantum involved in the charges in the present case are higher;

(b)     The accused here committed multiple offences;

(c)     There was an element of premeditation and a greater abuse of the accused’s position of authority here as he had deliberately distracted the victims using his official powers;

(d)     The present case involves potential harm to Singapore’s standing as an international travel hub;

45     In Mohammad Yus, the offender was a case investigating officer in the Singapore Police Force. He stole an ATM card belonging to a suspect in custody, used his powers of investigation to obtain the PIN number of the ATM card, and withdrew $1,000 on each of two occasions. He was convicted on three charges of s.379 of the Penal Code and sentenced to six months’ imprisonment for the theft of the ATM card, and eight months’ imprisonment each for the theft of the cash with the ATM card, with a global custodial sentence of 14 months’ imprisonment.

46     I was of the view that the present case is of a similar level of seriousness as compared to Mohammad Yus for the following reasons:

(a)     While the quantum involved in the proceeded charges of the present case is lower than in Mohammad Yus, the present case involved the accused committing theft on a larger number of occasions;

(b)     Both offenders in the present case and in Mohammad Yus had blatantly abused their official powers to facilitate their commission of the offences;

47     Therefore, given that the accused in the present case had additionally potentially damaged Singapore’s standing as an international travel hub, the appropriate sentence in the present case should be similar, if not more severe than the sentence imposed in Mohammad Yus.

The appropriate global sentence

48     As the accused has been convicted of three distinct offences, the court must order that at least two of the sentences run consecutively pursuant to section 307 of the Criminal Procedure Code 2010.

49     The global sentence to be meted out to the accused must reflect the totality of the accused’s criminality and serve as a deterrent as I had identified general deterrence as the overriding sentencing consideration in this case. In my view, a global sentence of 14 months’ imprisonment by running the sentences for the 1st and 5th charges consecutively would be fair and appropriate. I so sentenced the accused.

50     The accused was remanded for one day from 3 October 2023 to 4 October 2023. I ordered for his global sentence of 14 months’ imprisonment to be backdated to his date of arrest on 3 October 2023 to account for the period of remand but excluding the period the accused was released on bail.[note: 16] The accused was released on bail from 4 October 2023 till date.

Conclusion

51     In conclusion, a law enforcement officer who commits theft offences deserves stringent punishment, not only for the criminal act itself but also for the profound betrayal of public trust. By engaging in theft while on active duty, the accused had abused his position, exploited the victims, undermined the integrity of the system, and eroded public confidence in the entire law enforcement community. Heavy punishment serves as a necessary deterrent, ensuring accountability and maintaining the highest standards of integrity within our law enforcement agencies. Ultimately, severe penalties for law enforcement officers who commit theft send a clear message – that those entrusted with enforcing the law will be held to the highest standards of conduct, and any breach will face swift and just consequences.

52     All considered, I was of the view that a global custodial term of 14 months’ imprisonment was warranted and cannot be said to be manifestly excessive.

[note: 1]PP v Loqmanul Hakim bin Buang [2007] 4 SLR(R) (“Loqmanul”) at [3] and [37].

[note: 2]Statement of Facts dated 21 August 2024.

[note: 3]Prosecution’s Address on Sentence dated 21 August 2024.

[note: 4]At [4]

[note: 5]At [5].

[note: 6]At [6]

[note: 7]At [7]

[note: 8]At [8].

[note: 9]At [12]

[note: 10]Loqmanul at [76]

[note: 11]At [1].

[note: 12]Mohammad Yus at [14].

[note: 13]At [37]-[38].

[note: 14]PP v Fernando Payagala Wadyge Malitha Kumar [2007] 2 SLR(R) 334 at [54]

[note: 15]Lai Oei Mui Jenny v PP [1993] 3 SLR 305 and PP v Tan Fook Sum [1999] 2 SLR 523

[note: 16]S.318(4) and s.318(5) CPC.

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Public Prosecutor v AR Ridhwan Bin Abdul Rahim
[2024] SGDC 272

Case Number:District Arrest Case No 913840 of 2023
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Brian Tan (Attorney-General's Chambers) for the Public Prosecutor; Benedict Koh Yen Hin and Yip Jian Yang (Pro Bono SG) for the Accused.
Parties: Public Prosecutor — AR Ridhwan Bin Abdul Rahim

Criminal Procedure and Sentencing – Sentencing – Young offenders

15 October 2024

District Judge Shen Wanqin:

1       Youths represent the hope of our society. The public have no greater interest than that a youth should become a good and productive citizen (Teo Siew Peng v PP [1985] 2 MLJ 125). Hence, when a young offender commits a crime, a sentencing judge is faced with a difficult and weighty task. The judge is required to not only scrutinise the life and conduct of the young offender, but to also tailor an appropriate treatment that will mould the offender into a responsible member of the society. This is a sentencing decision that will change the course of a young person’s life in profound ways. As such, it is of paramount importance that the sentencing exercise be undertaken carefully and meticulously, with a view to steering a young offender to the straight and narrow path.

2       Mr AR Ridhwan Bin Abdul Rahim (“Mr Ridhwan”) was a 21-year-old young offender who was working at a club in Concorde Hotel and Shopping Mall (“Concorde”) in the early morning of 20 August 2023, when a fight occurred outside Concorde. His role that day was confined to taking a knife from his colleague, Muhammad Shahrulnizam Bin Osman (“Nizam”), and handing it to another colleague, Mohamad Zachary Danial Bin Mohamad Azhar, knowing that it would be removed from the crime scene. When questioned by the Police about the knife, he lied to shield Nizam from legal punishment. As a result, he faced one charge under s 201(c) read with s 34 of the Penal Code 1871 (“Penal Code”), and one charge under s 182 of the Penal Code. Two other similar charges were taken into consideration in sentencing.

3       Mr Ridhwan, now 22 years of age, pleaded guilty and was convicted on the two proceeded charges on 6 September 2024. I called for a pre-sentence report to assess his suitability for probation. The probation officer, Mr Ben Poh, produced a report on 4 October 2024, finding Mr Ridhwan to be unsuitable for probation (“the First Report”). Mr Poh also disclosed that Mr Ridhwan had been investigated for cheating offences before the incident on 20 August 2023, and the investigations for the offences were still pending (“the pending investigations”). Given the new information concerning the pending investigations, and notwithstanding the parties’ willingness to proceed with the sentencing for the present offences, I found it inappropriate to sentence Mr Ridhwan without knowing the outcome of the pending investigations. This was because he would suffer a real risk of prejudice if he was subsequently charged and sentenced separately for the cheating offences. Further, the pending investigations or the outcome of such investigations would likely affect his suitability for probation.

4       Fortunately, those concerns were obviated when the Prosecution informed on 7 October 2024 that they had reviewed the matter and decided not to tender any additional charges. Given these developments, I called for a supplementary report to re-assess Mr Ridhwan’s suitability for probation. In the supplementary report dated 14 October 2024, Mr Ridhwan was assessed to be suitable for probation (“the Second Report”).

5       The issues before me are (a) whether Mr Ridhwan should be treated as a youthful offender for the purposes of sentencing; (b) whether rehabilitation retains its primacy in the sentencing matrix; and (c) whether probation is the most appropriate sentence to impose in this case. Having considered the matter, I find that the questions should be answered in the affirmative, and therefore order Mr Ridhwan to undergo probation for a period of 18 months in lieu of imprisonment, on the conditions recommended in the Second Report. I now explain the reasons for my decision.

Whether Mr Ridhwan should be considered a youthful offender

6       In A Karthik v PP [2018] 5 SLR 1289 (“Karthik”) at [37], the High Court explained that there are at least two primary reasons for sentencing youthful offenders on the basis of rehabilitation being the dominant consideration:

(a)     First, the retrospective rationale, which seeks to justify giving a young offender a second chance by excusing his actions on the grounds of his youthful folly and inexperience.

(b)     Second, the prospective rationale, which seeks to justify rehabilitation as the preferred tool to discourage future offending, on the grounds that: (i) society will stand to benefit considerably from the rehabilitation of young offenders; (ii) young offenders will be more receptive to reformative efforts; and (iii) young offenders appear to suffer disproportionately when exposed to punitive options such as imprisonment as compared to adult offenders.

7       In this case, as Mr Ridhwan was at the threshold age of 21 at the time of the offences, the retrospective rationale applies to him, whereas the prospective rationale does not apply as strongly (Karthik at [45]). Even then, he can be considered a youthful offender for sentencing purposes because (see Karthik at [47]–[50]):

(a)     First, there is nothing to displace the continuing relevance of the retrospective rationale for sentencing such offenders on the basis of rehabilitation being the dominant sentencing consideration.

(b)     Second, an older offender like Mr Ridhwan may respond more meaningfully to rehabilitation and is therefore more suited for a rehabilitative sentencing option.

(c)     Third, Mr Ridhwan had, in the year that had elapsed since the commission of the present offences, progressed positively in his rehabilitation, by keeping himself meaningfully engaged in work commitments and by steering clear from negative social influences.

8       For the reasons outlined above, Mr Ridhwan should be considered a youthful offender for sentencing purposes.

Whether rehabilitation retains its primacy in the sentencing matrix

9       As Mr Ridhwan is a youthful offender, the two-stage approach for sentencing youthful offenders, set out in PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”), applies to him. Under this approach, the task for the court, at the first stage of the sentencing process, is to determine whether rehabilitation retains its primacy in the sentencing matrix. The primary sentencing consideration for youthful offenders will generally be rehabilitation, unless (a) the offence is serious, (b) the harm caused is severe, (c) the offender is hardened and recalcitrant; and/or (d) the conditions which make rehabilitative sentencing options viable do not exist (Karthik at [65]). At the second stage, the court is to select the appropriate sentence that will best meet the primary sentencing consideration identified and prioritised at the first stage (Karthik at [67]). I now apply the Al-Ansari approach to this case.

10     At the first stage, I find that rehabilitation retains its primacy in the sentencing exercise. It is not disputed that the present offences are serious as they pervert the course of justice and undermine the rule of law. Further, the offences would have caused the Police to expend additional time and resources to investigate and recover the weapons. While the harm caused was not insignificant, it was also not so severe as to displace rehabilitation as the primary sentencing consideration. Notably, Mr Ridhwan was neither a hardened nor recalcitrant offender who needed to be deterred as a matter of priority. He is a first offender who has no criminal history and does not exhibit anti-social behaviours. His family and his schools have given positive reports on his conduct. The fact that he eventually admitted to the offences during investigations also shows that he is not a hardened offender.

11     More significantly, there exists conditions which make rehabilitative sentencing a viable option. In this regard, I find that Mr Ridhwan’s capacity for rehabilitation is demonstrably high for several reasons (see the factors set out in Leon Russel Francis v PP [2014] 4 SLR 651 at [15] and applied in Karthik at [66] in determining whether there exist conditions which make rehabilitative options viable). First, he shares a good and close relationship with the core members of his family and has a strong support system to supervise him and to assist him in his rehabilitation. His mother, being the primary caregiver and disciplinarian, monitored him closely and made the effort to communicate regularly with him. His eldest sister frequently offered her encouragement, advice and support, while his younger siblings often spent their recreational time with him. His family had regular outings and partook in meals together. He also has a group of three close friends who provided positive influence and support, by advising him to be more discerning towards his choices of peers and work after learning about his offences.

12     Second, Mr Ridhwan’s offences amount to a one-off aberration. He does not have any criminal history and had consistently demonstrated good conduct until the commission of the present offences. After the offences, he engaged in meaningful employment and remained crime-free. He was employed as a paramedic from September 2023 to January 2024, and a warehouse assistant from February 2024 until the date of his remand on 28 June 2024. Even after he was remanded, he maintained good conduct in Prisons. His positive conduct is a good indicator of his robust commitment towards leaving his errant ways (Karthik at [73]).

13     Third, Mr Ridhwan demonstrated genuine remorse for his actions, by acknowledging the seriousness of his offences and their implications, verbalising regret for his role in concealing evidence and obstructing justice, and pleading guilty at the earliest opportunity. He sincerely reflected on his wrongdoing and candidly acknowledged that he should have listened to his mother’s advice to quit his job at the club earlier. Crucially, he could have taken the easy way out by seeking an imprisonment term which could be backdated to the date of his remand, but he did not do so. As the aggregate imprisonment term for the present offences is roughly equivalent to his period of remand, he will likely be released from Prisons by today, if he is sentenced to an imprisonment term. Yet, he demonstrated contriteness, maturity of thought and commitment to reform, by seeking the option of probation.

14     Fourth, Mr Ridhwan does not present any significant risk factors. Despite the risk factors noted in the First Report, he was assessed to have a low risk of re-offending. He has no history of anti-social behaviours or criminal antecedents and does not associate with other members of secret societies. He terminated his employment at the club immediately after the offences and ceased contact with his ex-colleagues who instigated the offences.

15     Given the factors above, rehabilitation should remain the dominant sentencing consideration for Mr Ridhwan.

Whether probation is the appropriate sentence

16     At the second stage of the Al-Ansari framework, the court must select the appropriate sentence in view of the primary sentencing consideration identified and prioritised at the first stage (Karthik at [67]). In this regard, I accept that the First Report and the Second Report are both helpful in assisting the court to make a more informed sentencing decision, as they contain important information about Mr Ridhwan elicited during interviews by the probation officer (Praveen s/o Krishnan v PP [2018] 3 SLR 1300 (“Praveen”) at [64]). However, I am mindful that the opinion of the probation officer is not conclusive on the issue of sentencing; the sentencing decision ultimately lies within the exclusive remit of the court alone (Praveen at [65]–[67]).

17     In this case, I hesitate to rely on the recommendation in the First Report because I am not convinced that a balancing of the various factors necessarily yielded the conclusion that Mr Ridhwan was unsuitable for probation. While Mr Poh took the position that probation was not suitable because the risk factors outweighed the protective factors, the basis for the position was not entirely clear. On a more superficial level, an equal number of risk factors and protective factors were noted in the First Report. On a more nuanced level, the risk factors that were noted, such as poor consequential thinking and disregard for the law, were common to individuals who flouted the law, and were not so exceptional as to outweigh the protective factors. Significantly, despite the risk factors, Mr Ridhwan’s risk of re-offending was ultimately assessed to be low.

18     On the other hand, there were numerous protective factors noted in this case, and these were strong and exceptional factors that demonstrated Mr Ridhwan’s high capacity for rehabilitation. These protective factors include his consistently good conduct prior to the offences, his close relationship with family members, his sense of responsibility and family commitment and the absence of deep-seated antisocial behaviours and criminal antecedents. Hence, on a proper balance of the relevant factors, the protective factors appear to outweigh the risk factors. When questioned about the basis for his assessment in the First Report, Mr Poh rightly did not pursue the point, and simply acknowledged that there were many protective factors in this case. Mr Poh also reviewed his assessment following the Prosecution’s decision not to prosecute the cheating offences and came to the same conclusion as I did – that Mr Ridhwan is suitable for probation.

19     Where rehabilitation is the dominant sentencing consideration, probation is an appropriate sentence, as it places rehabilitation at the front and centre of the court’s deliberation (Karthik at [67]). While there is also a need for deterrence given the seriousness of the offences committed, I find that the stringent conditions for probation, proposed by Mr Poh in the Second Report, are sufficient to meet the objective of deterrence (Praveen at [75]). Accordingly, I sentence Mr Ridhwan to undergo probation, and impose the conditions recommended by Mr Poh.

20     This case demonstrates the importance of placing all relevant information before the sentencing judge, especially in cases involving youthful offenders, to enable the judge to arrive at a fair, informed and appropriate sentencing decision that best fits the offence and the offender. In this case, both parties did not disclose the fact that there were pending investigations at the time of the plea of guilt. The pending investigations were only revealed following Mr Poh’s comprehensive and diligent social investigations, which were of considerable assistance to me. Even though the omission appears to be an innocuous one, the outcome in this case may have been different if the pending investigations were not disclosed and resolved before sentencing.

21     Similarly, I note that both parties did not have any questions for Mr Poh even though they, in submitting for probation as a sentencing option notwithstanding the recommendation in the First Report, necessarily disagreed with the recommendation. In such situations, it is only fair that the parties put their case to the probation officer, or question him on his assessment, to afford him the opportunity to explain his position. This approach will also assist parties in gaining a proper understanding of the probation officer’s position and the reasons for the same. That said, it is commendable that both parties had, despite the recommendation in the First Report, independently arrived at their decision to press for probation as a sentencing option, by putting Mr Ridhwan’s interests and needs at the forefront of their consideration.

Conclusion

22     The evidence before me shows Mr Ridhwan to be a young person who has merely taken a misstep in life owing to his lack of maturity and his misplaced sense of loyalty to his peers. Probation is well suited for an offender like Mr Ridhwan, who will benefit from the robust supervision, support and guidance provided by the probation officer and the family members rallying around him. Mr Ridhwan should treasure this opportunity given to him and make a concerted effort to become a good and productive citizen. Given his strong rehabilitative capacity, I trust that he will internalise the lessons learnt from this incident and work closely with the probation officer to effect positive transformations in his life.

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Public Prosecutor v Caleb Sho Khai Lok
[2024] SGDC 270

Case Number:District Arrest Case no. 900648-2024 and others, Magistrate's Appeal No. 9176-2024-01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Eddy Tham
Counsel Name(s): Deputy Public Prosecutor Ethan Lee for the Public Prosecutor; Defence Counsel A Revi Shanker (M/s ARShanker Law Chambers) for the Accused.
Parties: Public Prosecutor — Caleb Sho Khai Lok

Criminal Law – Criminal Procedure and Sentencing – Cheating by impersonation under section 419 of the Penal Code 1871 – Driving in breach of the conditions of his provisional driving licence under section 36(5) of the Road Traffic Act 1961) – Criminal misappropriation under section 403 of the Penal Code Cap 224 – Reformative training and probation

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9176/2024/01.]

15 October 2024

District Judge Eddy Tham:

Background

1       This is the accused’s appeal against a sentence of reformative training.

2       The Accused pleaded guilty to and was convicted on 14 March 2024 in respect of three charges, one for cheating by impersonation under section 419 of the Penal Code 1871, one charge for driving in breach of the conditions of his provisional driving licence under section 36(5) of the Road Traffic Act 1961(amalgamated pursuant to section 124(4) of the CPC) and one charge for criminal misappropriation under section 403 of the Penal Code Cap 224, Rev Ed 2008.

3       In addition, the Accused admitted and consented for 3 charges under section 419 of the Penal Code 1871 (amalgamated pursuant to Section 124(4) of the Criminal Procedure Code 2010 (“CPC”)), one charge for driving without insurance coverage under section 3(1) Motor Vehicles (Third-Party Risks and Compensation) Act 1960 and one charge under section 3(1) of the Computer Misuse Act (Cap 50A, Rev Ed 2007).

4       Pre-trial reports to assess the suitability of the Accused for probation and reformative training was called for.

5       The Accused was found suitable to undergo both probation and reformative training.

6       I found that reformative training was the more appropriate sentence and I accordingly sentenced the Accused to undergo a minimum of 12 months of reformative training.

7       The Accused being dissatisfied with the sentence has filed an appeal against it. He is presently released on bail pending the appeal.

The Charges

8       The three charges which Accused pleaded guilty to are set out here in full:

DAC 900648-2024

… are charged that you, on 114 separate occasions, between 02 March 2022 to 18 October 2022, somewhere in Singapore, did cheat BlueSG Pte Ltd (“BlueSG”) by personation, to wit, by using a BlueSG account in the name of one Sho Win Siew and representing yourself to be the said Sho Win Siew, and in doing so, did deceive BlueSG Pte Ltd into believing that you were the said Sho Win Siew, a fact which you knew to be false, and by such manner of deception, you dishonestly induced BlueSG Pte Ltd into delivering property in the form of BlueSG rental cars, an act which BlueSG Pte Ltd would not have done if it was not so deceived, which taken together amounts to a course of conduct, and you have thereby committed an offence punishable under section 419 of the Penal Code 1871 which charge is amalgamated pursuant to section 124(4) of the Criminal Procedure Code 2010 (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC;

DAC 900650-2024

… you, on 114 occasions on 2 March 2022 to 18 October 2022 in Singapore, whilst driving motor vehicle, did fail to comply with the conditions subject to which your provisional driving licence was granted, to wit, by driving the said motor vehicle without displaying the distinguishing mark set out in the Fifth Schedule of the Road Traffic (Motor Vehicles, Driving Licence) Rules on the front and rear of the motor vehicle and driving the said motor vehicle without the supervision of a licensed instructor with a Class 3 driving licence, and you have thereby committed an offence under section 36(5) of the Road Traffic Act 1961 and punishable under section 131(2)(a) of the same Act, which the charge is amalgamated pursuant to section 124(4) of the Criminal Procedure Code 2010 (“CPC”) and punishable under section 124(8)(a)(ii) of the CPC;

and

MAC 900312-2024

… you, on 2 November 2021, at about 7.30pm, at Endless Bar, 8B Circular Rd, Singapore 049364, did dishonestly misappropriate certain property, to wit, one Black Apple iPhone 11, 64GB, IMEI: 352915117839459, valued at SGD$1,500.00/-, belonging to one Elson Lim Ming Sheng, and you have thereby committed an offence punishable under Section 403 of the Penal Code, Chapter 224 (Rev. Ed. 2008).

The Statement of Facts

Background facts

9       The accused is Caleb Sho Khai Lok, a 20-year-old male Singaporean at the time of the conviction.

Facts relating to the 2nd charge (MAC-900312-2024): s 403 of the Penal Code (Cap 224, Rev Ed 2008)

10     On 2 November 2021, the Accused was at Endless Bar, 8B Circular Rd, Singapore when he was joined by the victim, Elson Lim Ming Sheng. The Accused and the victim were friends. Sometime in the morning on the same day, the Accused noticed that a black Apple iPhone valued at $1,500 (“the iPhone”) belonging to the victim was left unattended on a sofa. The iPhone is a movable property. The Accused knew that the iPhone belonged to the victim. At about 7.30pm, the Accused took the iPhone and placed it in his wallet with the intent to dishonestly misappropriate the iPhone to his own use.

11     When the victim discovered that the iPhone was not at the sofa, he looked around the vicinity but was unable to locate the iPhone. The victim then asked the Accused if he could check his pockets. The Accused indicated that he did not have the iPhone and allowed the victim to check his pockets. To prevent the victim from locating the iPhone, before the victim checked the Accused’s pockets, the accused set aside his wallet containing the iPhone. The victim was therefore unable to locate the iPhone.

12     On 3 November 2021, the victim was able to use the “Find My iPhone” mobile application to find the general location of the iPhone. The “Find My iPhone” mobile application indicated that the iPhone was in the general vicinity of The Arc at Tampines, which is a condominium that the victim knew to be the Accused’s residence. The victim contacted the Accused and asked the Accused if he took the iPhone. The Accused again denied doing so. The Accused invited the victim to search his room, which the victim accepted. The victim searched the Accused’s room but was unable to find the iPhone.

13     The victim nonetheless suspected that the Accused had taken the iPhone and informed the investigation officer of the same. The Accused was called down to the Tampines Neighbourhood Police Centre to be interviewed by the investigation officer. After the interview, the Accused contacted the victim and returned the iPhone to the victim.

14     By virtue of the foregoing, the Accused has committed an offence punishable under section 403 of the Penal Code (Cap 224, Rev Ed 2008).

Facts relating to the 5th charge (DAC-900648-2024): s 419 of the Penal Code 1871(“PC”)

15     Sometime before 28 February 2022, the Accused was interested to rent a car from BlueSG Pte Ltd (“BlueSG”), a company that provides a car rental service. To do so, he had to set up an account with BlueSG through BlueSG’s mobile phone application. The Accused knew that he would not be able to set up an account with BlueSG as BlueSG requires any prospective user to submit a picture of that user’s valid driving license. BlueSG has this requirement to protect road users from unqualified drivers. At the material time, the Accused did not have a valid driving license.

16     The Accused formed the intention to deceive BlueSG by representing that he was one Sho Win Siew, a person with a valid driving license, in order to set up a BlueSG account. Sho Win Siew is the Accused’s father and the Accused resided with him. When Sho Win Siew left his wallet unattended at home, the Accused took Sho Win Siew’s driving licence out of the wallet and took a photo of the driving license to deceive BlueSG.

17     On 28 February 2022, the Accused applied for an account with BlueSG. During the application process, he falsely represented that he was Sho Win Siew, and provided the photo of Sho Win Siew’s driving license. BlueSG approved the application, which act it would not have done, had it not been so deceived by the Accused’s impersonation of Sho Win Siew. In the process, an account was created in the name of Sho Win Siew (the “BlueSG account”).

18     On 2 March 2022, the Accused accessed the BlueSG account and rented a car through the BlueSG mobile phone application. By using the BlueSG account, he deceived BlueSG by representing himself as Sho Win Siew, intending to dishonestly induce BlueSG to deliver a BlueSG rental car to him. Through this deception, the accused successfully induced BlueSG to deliver a BlueSG rental car to him.

19     Between 2 March 2022 and 18 October 2022, the Accused used the method described above on a total of 114 occasions to dishonestly induce BlueSG to deliver BlueSG rental cars to him, acts which BlueSG would not do had it not been so deceived. These 114 occasions, taken together, amount to a course of conduct.

20     By virtue of the foregoing, the Accused has committed an offence punishable under Section 419 of the PC, which charge is amalgamated under Section 124(4) of the CPC and punishable under s 124(8)(a)(ii) CPC.

21     Between January 2022 and February 2022, the Accused was given access to a separate BlueSG account and an account with GetGo Technologies Pte Ltd (“GetGo”), which is also a company that provides a car rental service. The accounts were obtained through illegal means and the Accused was aware of this. The accounts were in the name of one Muhammad Shukri Bin Aderes, who is not acquainted with the Accused. In the same manner described above, the Accused dishonestly induced BlueSG and GetGo to deliver BlueSG rental cars and GetGo rental cars respectively to him. This deception resulted in BlueSG providing $114.84 worth of car rental services to the Accused, and GetGo providing $1,830 worth of car rental services to the Accused, for which no payment has been made.

Facts relating to the 7th charge (DAC-900650-2024): s 36(5) of the Road Traffic Act 1961 (“RTA”)

22     On the 114 occasions between 2 March 2022 and 18 October 2022 referred to above, the Accused did not have a valid driving license. During this time, the Accused possessed a provisional driving licence (“PDL”) for Class 3 vehicles. On each of the 114 occasions, the Accused drove the BlueSG rental car. He would drive the car to get to school or just for leisure. On some occasions, he would ferry passengers in his car.

23     As a person to whom a PDL was granted, the Accused was required to comply with the conditions subject to which the PDL is granted. The conditions for the PDL are set out in the Road Traffic (Motor Vehicles, Driving Licences) Rules. The Accused failed to comply with the following conditions:

(a)     Pursuant to s 22(3)(a) of the Road Traffic (Motor Vehicles, Driving Licences) Rules, while the Accused is learning to drive a Class 3 vehicle, the Accused must be under the supervision and in the presence of a licensed instructor who holds a Class 3 licence. On all 114 occasions, the accused drove BlueSG rental cars, which are Class 3 vehicles, without being supervised by, or in the presence of, a licensed instructor with a Class 3 licence.

(b)     Pursuant to s 22(3)(c) of the Road Traffic (Motor Vehicles, Driving Licences) Rules, while the Accused is driving a motor vehicle, the Accused must display in a conspicuous position at the front and at the rear of the vehicle the distinguishing mark set out in the Fifth Schedule. On all 114 occasions, the Accused drove BlueSG rental cars, which are motor vehicles, without displaying the required distinguishing mark.

24     The Accused therefore failed to comply with the conditions for the PDL on at least 114 occasions, which taken together, amount to a course of conduct.

25     On 18 October 2022, while driving along the Pan-Island Expressway in a BlueSG rental car, the Accused was stopped by a Traffic Police officer, who asked to see his licence.

26     The Accused had a passenger, one Esther Lim Xing Hui, in the car with him. When the Traffic Police officer asked to see the Accused’s driving licence via Singpass, the Accused was only able to provide the PDL but did not have a valid driving licence. He was unable to account for why he was driving without a valid driving licence.

27     By virtue of the foregoing, the Accused has committed an offence under section 36(5) of the Road Traffic Act 1961 and punishable under Section 131(2)(a) of the same act, which charge is amalgamated pursuant to Section 124(4) of the CPC and punishable under Section 124(8)(a)(ii) of the CPC.

Antecedents

28     The Accused has no previous convictions.

The Prosecution’s Submission on Sentence

29     The Prosecution sought for a sentence of reformation training on the ground that general and specific deterrence is paramount in the present case.

30     They highlighted the following aggravating factors that show a need for specific deterrence:

(a)     For the criminal misappropriation charge, the Accused had misappropriated the iPhone belonging to his friend and had made use of the trust in their friendship to convince the victim that he had not misappropriated the iPhone.

(b)     The Accused had repeatedly lied to the victim that he had not taken the iPhone, and only came clean after he had been interviewed by the Police.

(c)     For the cheating and driving offences, the Accused committed the offences on at least 114 occasions and only stopped after he was caught by the Traffic Police. This shows a commitment to his criminal conduct.

(d)     The Accused displayed persistence in committing the offence, having gone to great lengths to drive the BlueSG rental car. He created an account using personal details that did not belong to him, then represented he was the person named in the BlueSG account and drove the vehicle without complying with the PDL conditions.

(e)     The Accused has never held a valid driving licence and therefore posed a risk to other road users on the 114 or more occasions that he drove BlueSG rental cars. Furthermore, he ferried passengers around on several occasions, putting those passengers’ safety at risk.

(f)     The Accused has similar TIC charges for cheating by impersonation that show the same modus operandi. Further, for these TIC charges, the Accused received services for which he did not make payment. The Accused has not made restitution for any of these services.

31     The Prosecution also highlighted the following factors that show a need for general deterrence:

(a)     Scam and cybercrimes offences have been on the rise, which was noted by Minister for Home Affairs, Mr K Shanmugam, in a written answer to a Question for Oral Answer (Singapore Parliamentary Debates, Official Reports (7 November 2023) vol 95), stating that “in the last few years, there has been an exponential rise in the number of scam and cybercrime cases”. The Accused’s s 419 PC offences involved elements of deception in inducing car rental services into providing rental cars to him using cyber means. In 2020, Minister of State for Home Affairs Mr Desmond Tan, during Oral Answers to Questions (Singapore Parliamentary Debates, Official Reports (6 October 2020) vol 95), observed that the most popular scam crimes were the e-commerce scam, due to the prevalence of the Internet. The second most popular scam were impersonation scams. The present case discloses offences wherein the Accused made use of the cloak of anonymity provided by the Internet to impersonate other people in order to deceive BlueSG and GetGo into delivering rental cars to him.

(b)     Deterrence is paramount for offences that are difficult to detect. The fact that the offence was committed through the Internet shows that it was difficult to detect. BlueSG and GetGo had no way to verify that the person they had delivered the rental car to was indeed the person that the Accused represented himself to be. The only reason the Accused’s 114 occasions of cheating by personation were uncovered was because he was stopped by the Traffic Police.

(c)     There is a need to deter PDL licensees from failing to comply with the PDL conditions. These conditions are put in place to protect both the licensee and other road users.

(d)     The Accused’s cheating offences were effectively to bypass requirements put in place by BlueSG and GetGo for the safety of road users. There is a need to send a strong message against those who commit cheating offences to bypass requirements put in place for safety reasons. As identified in PP v Law Aik Meng [2007] 2 SLR(R) 814 (at [24(d)]), offences affecting public safety should warrant general deterrence.

32     The Prosecution also submitted that a disqualification order would be necessary to serve as specific deterrence for the Accused given the numerous times he drove without complying with the PDL conditions. The need to impose a disqualification order militates against probation, since a disqualification order cannot be imposed in addition to a probation order.

Mitigation

33     The Defence asserted that there have been numerous studies conducted on the effects of incarceration on young adults and it was well recognized that incarceration should be the last resort for young adults.

34     Given their capacity to change, young adults are more likely to benefit from rehabilitative sentences and restorative measures. Further, the Defence argued that it was well established that custody can have a particularly damaging effect on young adults given their stage of development and it has a range of other damaging consequences such as increase in the likelihood of offending.

35     The Defence thus submitted that rehabilitation rather than imposing preventative, retribution or deterrent sentences be the main focus of sentencing.

36     The Accused had expressed his wish to pursue his further studies and obtain a degree in Hotel and Tourism. The Defence Counsel thus urged the Court to give him a second chance to recalibrate his direction in life so that he could attempt to further purse his education, carve out a career path and be a contributing member of society.

REASONS FOR THE SENTENCE

The sentencing principle

37     When dealing with young offenders below 21, it is well established that the primary focus of sentencing ought to be one of rehabilitation. This is so, given the lesser culpability associated to the acts of a person who is still of tender and immature age and to reflect the greater capacity for change that is inherent in young people.

38     On the other hand the primacy of this sentencing principle can at times be reduced or even displaced in cases when there is a greater need for deterrence or retribution when the nature of the offence is serious such as where grave harm has been caused. In PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Mohammad Al-Ansari”), at [34] an example of a case where rehabilitation was no longer the dominant consideration was cited in PP v Mohamed Noh Hafiz bin Osman (2003) 4 SLR(R) 281 , where a 17 year-old offender was sentenced to 20 years’ imprisonment and 24 strokes of the cane due to the number and nature of the offences. The offender had pleaded guilty to 2 charges of rape, 4 charges of aggravated outrage of modesty, 3 charges of unnatural sex and a robbery charge. In addition, he also had 19 other charges taken into consideration which included 9 charges of aggravated outrage of modesty and 4 charges of robbery.

39     Even if the offences committed are not so serious to completely displace rehabilitation as the dominant principle, where deterrence is still needed, reformative training may represent a better balance between the need for rehabilitation and deterrence (Mohammad Al -Ansari at [65]).

40     In deciding where the balance lies on the spectrum, relevant factors for consideration include (see Mohammad Al-Ansari at [67]):

(a)     the seriousness of the offence;

(b)     the culpability of the offender;

(c)     the existence of antecedents;

(d)     the nature of the rehabilitation best suited for the offender;

(e)     the availability of familial support in the rehabilitative efforts; and

(f)     any other special reasons or need for rehabilitation.

Applying the sentencing principles

The seriousness of the offences

41     I noted several factors that militated towards a more deterrent approach needed for sentencing. First, the seriousness of the offences committed. For the driving offences, the Accused had clearly put public safety at risk. He had driven on 114 occasions without a valid driving licence and without any supervision as required by the law. On some occasions, he had also ferried passengers thereby putting those passengers’ lives at risk too. The audacity of his offences is further evidenced by the fact that he had carried on such a conduct on numerous occasions as set out in the charge taken into consideration under section 419 of the Penal Code where between January 2022 and February 2022, the Accused dishonestly induced BlueSG and GetGo to deliver BlueSG rental cars and GetGo rental cars respectively to him and allowed him to thereby make use of the vehicles without paying for them.

42     Furthermore on each occasion, he had also driven without third party insurance coverage thereby putting any potential victim to greater harm of not being able to be fully compensated. It is clearly fortuitous that no actual harm was caused to any other road users during the numerous occasions that the Accused had driven on public roads.

43     I also noted that the Accused had committed another offence that calls out for general deterrence. This is in the case of another charge taken into consideration, the offence under section 3(1) read with Section 10 of the Computer Misuse Act (Cap 50A), by handing over his bank account’s user ID and access code to others. This kind of offences had come under new sentencing guidelines which called for greater punishment in order to stem the prevalence of such offences. The potential harm for such offences has been widely publicised to the public as to how scammers had made use of bank accounts provided by offenders such as the Accused in order to siphon off the monies scammed.

The prevalence of the offences

44     In addition, the culpability of the Accused would also have been enhanced by the prevalence of the cheating offences he had committed. The Accused had consciously and deliberately exploited the ease of rental of such vehicles using the false identity to circumvent the checks put in place to ensure that cars are rented out only to fully qualified drivers.

45     He was likely to have persisted with his offences had he not been stopped by a Traffic Police Officer whilst he was driving for his licence to be checked which thus put an end to his illegal escapades.

46     He had cheated and driven on more than a hundred occasions without being detected. He had revealed to the officer during the preparation of the Pre-Sentencing Report on Reformative Training (“RTC Report”) that he had planned his route and time of offence and drove carefully to minimise the possibility of getting caught[note: 1]. The difficulty at detection of such offences is also another factor that calls for greater deterrence.

Prior Intervention

47     There were prior interventions with rehabilitative efforts applied on the Accused. The Accused’s school record as detailed in the Probation Report[note: 2] disclosed poor conduct as he had been suspended due to late coming, displayed open defiance, and was caught for smoking and vaping on 6 occasions from 2018 to 2020 and was caned.

48     He had also been caned once for one incident of vandalism and twice for two theft incidents.

49     He was placed on Guidance Programme for dishonestly misappropriating a schoolmate’s phone in 2020 and issued with a 24-month conditional warning in 2021 for the criminal misappropriation offence in MAC 900312/2024 for which he breached and hence was subsequently charged for this incident[note: 3].

50     The Accused had thus repeatedly wasted the numerous chances to him and persisted with the same disciplinary issues despite these past rehabilitative efforts.

The persistence of the Accused’s criminal behaviour post-offences

51     The RTC Report disclosed that the Accused had not changed much since the commission of the offences. He enlisted for National Service (“NS”) in November 2022. He committed violations of disobedience of general orders or conduct to the prejudice of good order or non-compliance with a lawful duty or order on eight occasions between March 2023 and January 2024.

52     The Accused had shared that he behaved poorly initially for example, deliberately delayed completion of work assigned and did not get along with his peers. However, his attitude towards NS improved since his sentence to Detention Barracks for Conduct to the Prejudice of Good Order in June 2023. He claimed that because of the sentence, he realised the seriousness of the consequences of his offences and improved on his behaviours[note: 4].

53     Caleb shared that his relationship with his parents improved since his sentence to Detention Barracks in June 2023 with him calling them more often and having meals with them weekly and that the curfew hours stipulated by the Court had increased the opportunities to bond with his family. His parents corroborated his account that they communicated more and spent more time together as a family since his sentence in Detention Barracks[note: 5].

54     However, the RTC report highlighted two violations in January 2024 in which he was found in possession of e-cigarette and subsequently provided false information to his superior. This offence was similar to the offences committed in March 2023 for which he was sentenced to Detention Barracks. The repeated offence indicated that despite the improvements made, the Accused continued to violate SAF rules and regulations pointing to his issues with compliance[note: 6].

55     The number of violations was in fact more than 2 after his stint in the Detention Barracks as set out in the Probation Report. The Accused served 10 days’ detention at the Detention Barracks on 1 June 2023 for providing false information to his superior by lying that his friend was not vaping.

56     Thereafter, he committed the following violations[note: 7] post-Detention Barracks:

(a)     Given 7 days of Stoppage of Leave(“SOL”) on 17 July 2023 for possessing obscene material in his phone;

(b)     Given 21 days of SOL on 17 July 2023 for leaving his house while on medical leave;

(c)     Fined $100 for smoking in the bunk on 23 August 2023;

(d)     Given 7 days of SOL on 26 October 2023 for failing to comply with his superior’s instructions by going to the canteen without permission;

(e)     Fined $300 for being in possession of an e-cigarette on 11 January 2024.;

(f)     Given 14 days of SOL on 12 February 2024 for providing false information to his superior that he did not bring a vape into camp.

57     His persistence in committing violations in NS even after his time in the Detention Barracks, contrary to his assertion of it being a wake-up call for him, showed that he had difficulty in internalising any lessons learned and continued to struggle with compliance of regulations imposed on him by his superiors. Significantly, the Accused’s last violation, which was as recent as February this year for lying to his superior, was a similar violation to the one for which he was sentenced to detention just about 8 months earlier.

58     This undermined both his assertion that he had realised the folly of his ways and the consequences of his actions with the Detention Barracks sentence, as well as the positive effect of his closer bond with his family. These touched on two the factors raised by the Probation Officer as protective factors that supported his assessment that probation is a suitable option for the Accused, namely:

(a)     Improvement in Caleb’s performance and conduct in NS after his stint in the Detention Barracks suggests that he is able to abide by rules and structure, as well as demonstrates insight into his misbehaviours and the need to make positive changes when faced with a protective factor with consequences.

(b)     Caleb’s close relationship with his parents and their willingness to improve their parenting and supervision of him are strengths that could be utilised to optimise his rehabilitation in the community.

59     When questioned by the Prosecution on this factor of the Accused’s improved work performance, conduct and performance, the Probation Officer clarified that this was based on what the Accused’s NS officer wrote and he was not able to say whether this improvement was only after the last violation in February 2024[note: 8]. The Probation Officer also agreed with the Prosecution that given the number of violations post Detention Barracks, any improvement was inconsistent and haphazard[note: 9].

60     Given that his patchy record in NS even after a stint in Detention Barracks, I am of the view that whilst he was still found to be suitable for probation, the strength of the recommendation for probation had clearly been weakened.

61     It is also disturbing that he was less than forthcoming when he was being questioned during the preparation of the RT Report on this issue. It was highlighted in the RTC Report that he only disclosed one punishment during NS, contrary to the report from NS that he had eight punishments meted out[note: 10].

Conclusion

62     The Accused had committed the offences at a relatively youthful age of 18-19 years old and hence rehabilitation is clearly a relevant and important sentencing principle. The offences committed, whilst serious and persistent, were not so heinous or outrageous that rehabilitation is wholly displaced by the other sentencing principles such as deterrence and retribution.

63     Nonetheless, the overall picture presented by the Accused was a person who had not been able to turn away from crime and violation of rules despite many chances and previous punishments inflicted on him.

64     A clearly more deterrent approach in order to ensure that the rehabilitative efforts are brought to bear upon the Accused to steer him away from crime. In the circumstances, reformative training with its structured environment and a higher level of deterrence would be more appropriate to serve the twin objectives of rehabilitation and deterrence.

65     I have accordingly sentenced the Accused to undergo level 2 intensity of rehabilitation as recommended in the RTC Report. As this level would require a 12-month period of intervention, I have sentenced the Accused to undergo 12 months of reformative training.

[note: 1]RTC Report page 8 under section of Attitude/Orientation

[note: 2]Probation Report pages 7-8 under section of Education at para 5.2 under sub-section of Behaviour

[note: 3]Probation Report at page 11 under section of Risky Behaviours with the sub-heading of Pilfering

[note: 4]RTC Report page 6, [2] under section on Education/Employment.

[note: 5]RTC Report pages 5-6 under section on Family.

[note: 6]RTC Report page 6, [4] under section on Education/Employment.

[note: 7]Probation Report pages 8-9 under section on Employment/National Service.

[note: 8]Notes of Evidence, 19 August 2024, 4/4-22

[note: 9]Notes of Evidence, 19 August 2024, 3/18-4/3

[note: 10]RTC Report page 5 under section on Presenting Behaviour

"},{"tags":["Criminal Procedure and Sentencing – Sentencing"],"date":"2024-10-15","court":"District Court","case-number":"DAC-924048-2020 & ors, Magistrate's Appeal No 9187-2024-01","title":"Public Prosecutor v Lim Ee Zheng, Jerron","citation":"[2024] SGDC 266","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32329-SSP.xml","counsel":["DPPs Matthew Choo and Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor","Mr Chua Shi Jie (RCL Chambers Law Corporation) for the Accused."],"timestamp":"2024-10-21T16:00:00Z[GMT]","coram":"Toh Han Li","html":"Public Prosecutor v Lim Ee Zheng, Jerron

Public Prosecutor v Lim Ee Zheng, Jerron
[2024] SGDC 266

Case Number:DAC-924048-2020 & ors, Magistrate's Appeal No 9187-2024-01
Decision Date:15 October 2024
Tribunal/Court:District Court
Coram: Toh Han Li
Counsel Name(s): DPPs Matthew Choo and Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor; Mr Chua Shi Jie (RCL Chambers Law Corporation) for the Accused.
Parties: Public Prosecutor — Lim Ee Zheng, Jerron

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9187/2024/01.]

15 October 2024

Principal District Judge Toh Han Li:

Introduction

1       The Accused, a 29-year-old male Singaporean, pleaded guilty before me to the following proceeded charges and was sentenced as follows:

Offence

Court’s sentence

YouTrip fraudulent scheme

12 charges under s 3(1) r/w ss 10(1) and 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”)

(5th, 8th, 10th , 11th, 13th, 16th, 19th, 20th, 21st, 28th, 38th and 45th charges)

Five to six months’ imprisonment per charge

(10th, 11th, 16th, 19th , 38th charges to run consecutively)

Driving-related offences

Three charges under s 35(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) (pre-2019 amendment)

(92nd, 98th and 104th charges)

One week’s imprisonment per charge

(all sentences concurrent)

Two charges under s 182 of the Penal Code (Cap 224, 2008 Rev Ed)

(88th and 90th charges)

One week’s imprisonment (88th charge)

Two weeks’ imprisonment (90th charge)

(90th charge to run consecutively)

Two charges under s 35(1) of the RTA or Road Traffic Act 1961 (“RTA 1961”) (post-2019 amendment)

(114th and 120th charges)

Six weeks’ imprisonment

Five years’ Disqualification for All Classes (“DQAC”) per charge

(114th charge to run consecutively)

Two charges under s 129(2)(d) of the RTA

(108th and 119th charges)

Six weeks’ imprisonment per charge

(108th charge to run consecutively)

One charge under s 84(3) r/w s 84(7) of the RTA

(118th charge)

Two weeks’ imprisonment

(consecutive)

Cheating offence

One charge under s 417 Penal Code (Cap 224, 2008 Rev Ed) (“PC”) r/w s 124(4) and p/u s 124(8) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)

(112th charge)

Nine months’ imprisonment

(consecutive)

Enlistment Act offences

One charge under s 9 of the Enlistment Act (Cap 93, 2001 Rev Ed) (“Enlistment Act”)

(110th charge)

$6,000 fine in default (“i/d”) three weeks imprisonment

One charge under s 10 (2) of the Enlistment Act

(111th charge)

$4,000 fine i/d two weeks imprisonment

Global sentence

36 months’ and 16 weeks’

imprisonment, $10,000 fine and five years’ DQAC

(backdated to 28 September 2022)



2       99 charges were taken into consideration for the purposes of sentencing (“TIC charges”). These TIC charges included a YouTrip fraudulent scheme and were offences under s 3(1) r/w ss 10(1) and s 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed), using benefits from criminal conduct under s 47(1)(c) Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act Cap 65A, as well as various driving-related offences under the RTA and the Motor-Vehicle (Third Party Risk and Compensation Act).

3       The Accused has appealed against his sentences and is currently serving sentence. While the Accused had sought bail pending the appeal, the Prosecution objected to bail given the history of the case.

4       The Accused was arrested on 11 February 2019 and thereafter remanded for investigations into his involvement in the YouTrip fraudulent scheme until 20 February 2019. He was released on court bail on 20 February 2019.

5       On 16 August 2021, he appeared in court for his plead guilty mention, but the plead guilty mention did not proceed as he had committed fresh offences while on bail. When the Accused was informed of these fresh investigations and the Prosecution’s intention to revoke bail, he produced a medical certificate stating that he was unfit to attend court that day. The court then adjourned the mention.

6       The subsequent court mentions from September 2021 were rescheduled repeatedly after the Accused applied to reschedule these mentions on the basis that he was medically unwell. From September 2021 onwards, the Accused became uncontactable to the authorities, who required him to assist with investigations for various fresh offences he had committed. A warrant to arrest (with no bail offered) was issued by the court against the Accused on 25 April 2022 and he was arrested by the Police on 28 September 2022 and was remanded up to the date of the plead guilty mention before me.

7       In view of the case history, including the fact that he had committed offences on bail, his non-responsiveness to the authorities and his being at large until he was eventually arrested and thereafter being in remand till the plead guilty mention, I did not grant bail pending the Accused’s appeal.

8       The Accused has paid the $6,000 fine and was granted until 29 November 2024 to pay the $4,000 fine.

Statement of Facts

The YouTrip fraudulent scheme

9       The co-accused persons in the YouTrip fraudulent scheme were as follows:

a.     Wong Chen Yui (“Wong”), a male 35-year-old Singaporean;

b.     Loh Hong Jun (“Loh”), a male 27-year-old Malaysian (Singapore PR);

c.     Ong Bee Lay (“Ong”), a female 37-year-old Singaporean;

d.     Han Shuzhen (“Han”), a female 37-year-old Singaporean; and

e.     Bai Siyan (“Bai”), a female 39-year-old Singaporean

10     On 1 February 2019, a representative of You Technologies (Singapore) Pte Ltd lodged a police report informing that they had received many transaction disputes connected to at least 18 user accounts involving 76 credit and debit cards.

11     The victim company was You Technologies (Singapore) Pte Ltd. Its core business is the provision of the “YouTrip” payment service, a multi-currency e-wallet (the “YouTrip account”), which could be accessed via a mobile application, the “YouTrip app”, combined with a contactless prepaid Mastercard (the “YouTrip card”).

12     To register for a YouTrip account, a user was required to submit his personal information via the YouTrip app and accede to the terms and conditions – he was not authorised to (a) use the YouTrip account to receive fraudulent funds, nor (b) allow any other person the use of or access to his YouTrip card.

13     The YouTrip card could be used (a) at merchant or retail points, or (b) to withdraw the stored value in the YouTrip account in cash from automated teller machines (“ATMs”) located overseas (ie, outside of Singapore).

14     To top-up the stored value, a user would first have to register his credit or debit card details. At the time of the offences, the victim company did not require a one-time-password (“OTP”), or any other authentication process, to register such card details. Each account was permitted to have multiple cards registered.

15     To perform a top-up, the user would access the bank account linked to the credit/debit card via the YouTrip app and select the option for funds to be transferred from the bank account to the YouTrip account. No OTP or authentication was required for each top-up performed.

16     At all material times, the data in relation to each YouTrip account was accessible via the YouTrip app through the victim company’s computer system, hosted on the Amazon Cloud Server located in Singapore.

17     Sometime in 2018, the Accused realised that there was a security flaw in the YouTrip payment service, whereby credit/debit cards could be registered on the YouTrip app and top-ups performed without any requirement for an OTP. He shared his plan to use stolen credit or debit card information to perform unauthorised top-ups to YouTrip accounts with the other co-accused persons. The modus operandi of the syndicated fraud operation on YouTrip was as follows:

18     Opening of YouTrip accounts. The Accused requested Loh, Wong and one Nua We Beng to open YouTrip accounts, and hand over control of the accounts by providing him with the physical YouTrip cards and login details. The Accused also requested that they obtain more YouTrip accounts for the scheme’s use. Wong and Loh in turn persuaded 16 other individuals to open YouTrip accounts. The Accused offered a commission of between S$200 to S$1,000 for each YouTrip account obtained.

19     Obtaining stolen credit or debit card information: Wong also agreed to help the Accused obtain credit/debit card information, so that the Accused could use such information to perform the top-ups. Wong agreed to help the Accused in return for S$1,000 for each credit/debit card information obtained. Wong recruited Ong and Han to steal credit/debit card information from customers at their respective places of employment (without the knowledge of the employer or the cardholder). They were paid S$200 by Wong for each set of card information obtained. Ong obtained about 20 sets of card information from her customers at Pour House Bar, while Han obtained about 10 sets from her customers at Eighteen Bali pub and Atlas Medical Pte Ltd for the scheme’s use.

20     Top-ups to the YouTrip accounts: The Accused would then use the stolen card details to perform the unauthorised top-ups, to a maximum sum of S$3,000 per YouTrip account.

21     For some of the top-ups, the top-ups would be unsuccessful if (i) the transaction amount exceeded the daily transaction limit for the credit card (or if the debit card had insufficient funds), or (ii) the payment system for that card had a separate OTP or authentication requirement. These unsuccessful top-ups formed the subject of the TIC charges under s 3(1) r/w s 10(1) r/w s 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”) r/w s 116 of the Penal Code (Cap 224, 2008 Rev Ed).

22     Withdrawal of cash from ATMs in Malaysia: The scheme members would then withdraw the stored value in the YouTrip accounts in cash using the YouTrip cards at ATMs in Malaysia. The Accused would request his runners to withdraw the cash on his behalf, while he waited in the vicinity of the ATMs. The cash withdrawn would then be split amongst the scheme members.

23     In total, the scheme obtained at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders.

24     The successful top-ups performed by the scheme amounted to the sum of S$128,171.46, of which the sum of S$6,039.63 was successfully recovered by the Police during investigations. On the 12 proceeded charges, the total amount involved was S$55,261.96.

25     The total loss sustained by the victim company was S$122,131.83. The Accused received a profit of at least RM100,000. He has not made any restitution.

26     Wong was first investigated by the Police on 31 January 2019. When the Accused found out about the investigations, he disposed of his iPad in Johor, Malaysia. This was because the iPad contained evidence of the offences, being the Accused’s record of the debit/credit card top-ups and cash withdrawals made on the YouTrip accounts. The iPad was not recovered during investigations.

Driving-related offences: Facts relating to DAC-924048-2020 (92nd charge)

27     At the time of the accident, the Accused was the driver of the motor car JPC888 (the “Car”). The Car was registered outside Singapore. The Accused purchased the Car from a “black market seller” in Johor Bahru, Malaysia in cash sometime between December 2018 and January 2019, without any registration documents.

28     On 22 April 2019, at about 5 pm, the Accused was driving the Car straight along Yishun Avenue 6, Singapore. Without reasonable consideration for other road users, the Accused failed to exercise care when making a lane change to the right, which resulted in a collision with the motor car driven by the victim, Xu Hanting. No injuries were reported.

29     After the accident, the Accused did not stop to exchange particulars with the victim, nor did he file an accident report within 24 hours of the accident.

30     The Accused did not possess any valid Singapore Class 3 driving licence. The Accused knew that he did not have a valid licence, and that it was an offence to drive in Singapore without one. Prior to the accident, around 2.50 pm, he had driven the car from his place of residence in Bukit Batok to a building in Yishun Avenue 6 to meet a friend. The accident occurred shortly after he left the building’s car park around 5.00 pm.

Driving-related offences: Facts relating to MAC-907015-2020 AND DAC-924054-2020 (88TH and 98TH charges)

31     On 28 June 2019, at or about 3.46 am, the Accused was driving the Car straight along CTE (AYE), Singapore. At the 8.5 km mark of the said expressway, without reasonable consideration for other road users, the Accused failed to exercise care when making a lane change to the left, which resulted in a collision with the motor car driven by the victim, Liang Zhen Ning, Justin. No injuries were reported.

32     Sometime between 4 am and 4.32 am, Sergeant(2) Mohamed Nurhaikal Bin Mohamed Shariff (“Sgt Haikal”), a police officer in the employ of the Traffic Police Department of the Singapore Police Force, arrived at the accident location. He approached the Accused and asked that he furnish his particulars. The Accused was unable to produce any identification. Instead, he claimed that he was one “Loh Hong Jun” on a Malaysian social visit pass. He also claimed that his Malaysian passport was with a friend. The Accused lied to Sgt Haikal that he was “Loh Hong Jun”, which information he knew to be false. He did so knowing that it would be likely that Sgt Haikal would omit to investigate the Accused for offences in relation to driving the Car, which Sgt Haikal ought not to omit if the true state of facts respecting which such information was given were known to him.

33     Sgt Haikal conducted numerous searches on various Police systems but was unable to establish the Accused’s identity. After a search of the Accused’s Car, the Police found forged documents bearing logos from the Land Transport Authority and the Ministry of Defence stating that the Car was a “government registered vehicle” and that the Accused had a “valid Class 3A driving licence”. The Accused finally admitted to providing false particulars when a photograph of his genuine NRIC was found in his mobile phone.

34     The Accused did not possess any valid Singapore Class 3 driving licence. Prior to the accident, he had left his place of residence in Bukit Batok, and headed to Bedok for supper until 1 am. Thereafter, he drove to Hougang with the intention to pick up a Grab Hitch passenger but was not successful. The accident occurred when he was on the way home.

Driving-related offences: Facts relating to MAC-907574-2020, MSC-903130-2020 AND MSC-903134-2020 (90TH, 104TH and 108TH charges)

35     At the time of the accident, the Accused was the driver of the motor car bearing licence plate ‘QS996K’ (the “Second Car”).

36     On 25 August 2019, at about 4.45 pm, the Accused was driving the Second Car along Bukit Batok West Avenue 5, Singapore when he was stopped by Traffic Police officers for a routine check. At about 5 pm, Staff Sergeant Fathur Rahman Bin Rohani (“Sgt Fathur”), a police officer in the employ of the Traffic Police Department of the Singapore Police Force, approached the Accused and asked that he furnish his particulars. The Accused produced a photograph of a forged Malaysian identification card and claimed to be one “Chng Soon Hao”. He did so knowing that it would be likely that Sgt Fathur would omit to investigate the Accused for offences in relation to driving the Second Car, which Sgt Fathur ought not to omit if the true state of facts respecting which such information was given were known to him.

37     Sgt Fathur conducted searches on various Police systems, but was unable to establish the Accused’s identity. Sgt Fathur only realised that the Accused was lying when Sgt Haikal arrived at the scene, and recognised the Accused from a prior investigation. The Accused then admitted to providing the false particulars.

38     The Accused did not possess any valid Singapore Class 3 driving licence. The Accused had driven the Second Car daily for less than a month before 25 August 2019.

39     Further investigations revealed that the Second Car was previously registered in Singapore and assigned with the registration number ‘SLG8100M’. The vehicle was deregistered on 4 September 2018 and declared to be exported to Malaysia on 14 September 2018. The Accused bought the Second Car on the “black market” in Malaysia from an unknown subject “James”, and arranged for the Second Car to be brought into Singapore. The Accused then paid James a further sum of S$5,000 to obtain falsified road tax documents for a new licence plate, QS996K. The Accused then went to an unknown car workshop in Ubi, Singapore to affix a false licence plate ‘QS996K’ to the Second Car.

Driving-related offences: Facts relating to MSC-900648-2023 and MSC-900649-2023 (119TH and 120TH charges)

40     On 5 March 2020, at about 9.20 pm, one Alden Gan Wei Hao, a 22-year-old male (“Gan”), was driving a motor car bearing licence plate ‘SS484V’ along Jalan Lam Sam, Singapore, when he was stopped by enforcement officers from the Land Transport Authority. During the checks, Gan was found to have been driving without a valid licence, the requisite insurance and road tax.

41     Further investigations revealed that the said car was in fact the Second Car, and previously registered in Singapore and assigned with the registration number ‘SLG8100M’. The Second Car was not impounded by the Traffic Police during investigations into the offences on 25 August 2019. After the Accused regained possession of the Second Car, sometime in January 2020, he went to an unknown car workshop in Singapore to affix a second false licence plate ‘SS484V’.

42     The Accused drove the Second Car daily in Singapore from January to March 2020.

43     The Accused was friends with Gan, and shared the use of the Second Car between January to March 2020 with Gan. Gan would use the Second Car to ferry passengers, and would give the Accused S$20 to S$30 per day in return for fuel costs. The Accused would have the use of the Second Car for the rest of the day, after Gan’s shift had ended.

Cheating offence

Facts relating to DAC-901979-2023 (112TH charge)

44     On 6 July 2021, at about 2.47 pm, Loo Bee Theng, a fraud specialist employed by Singapore Telecommunications Limited (“Singtel”), lodged a police report stating that Singtel had been scammed by one of their customers.

45     Between February 2017 to March 2019, the Accused signed up for five mobile lines with Singtel. From June 2020 onwards, the Accused was responsible for paying the bills for all five mobile lines, as well as a Singtel Fibre Home Bundle and a Singtel TV subscription.

46     However, from June 2020 onwards, the Accused knew that he did not have the means nor the intention to make payment to Singtel for the mobile lines and other services. As such, he decided to issue cheques from his personal CIMB account or Standard Chartered Bank (“SCB”) account, and represent to Singtel that the cheques would be honoured to pay for the mobile lines and other services, when he knew in fact that he did not intend to honour such cheques. He knew that the cheques would not be honoured either because:

a)     His bank accounts had insufficient funds at the time he submitted the cheques;

b)     He would deliberately insert a different signature on the cheque, so that the banks processing the cheque would reject the cheque because the signature was irregular; or

c)     He submitted the CIMB cheques after his CIMB account had been closed on 5 March 2021.

47     As a result of the Accused’s deception, Singtel was dishonestly induced not to discontinue the mobile phone lines because of the unpaid outstanding bills, which Singtel would not omit to do if it were not so deceived, and which omission caused Singtel harm in property, being the value of the outstanding bills.

48     In respect of the proceeded charge, between 26 June 2020 and 17 June 2021, on 20 separate occasions, the Accused submitted 20 cheques to Singtel totalling S$95,900 which were dishonoured.

49     Considering the value of the three SCB cheques submitted, The Accused submitted 23 dishonoured cheques to Singtel amounting to a total value of S$112,380.

50     As of 8 August 2021, the total outstanding amount owed to Singtel for the five mobile phone lines and other services was S$17,521.98, including $4,824.33 in fees for the early termination of the five mobile phone lines. No restitution had been made.

Driving-related offences: Facts relating to DAC-902125-2023 and DAC-902129-2023 (114TH and 118TH charges)

51     At the time of the accident, the Accused was the driver of the motor car SLD204R (the “Third Car”).

52     On 4 June 2022, at or about 12.32 pm, The Accused was driving the Third Car straight along Bukit Batok Street 23 towards Bukit Batok Street 25. A motorcyclist, Balachandar a/l Verilek Pillay (“Balachandar”), was travelling in the opposite direction along the said Bukit Batok Street 23. He failed to keep a proper lookout when he executed a right turn into the VICOM Inspection Centre located at 511 Bukit Batok Street 23. The left side of his motorcycle collided into the right side of the Accused’s Third Car, who had the right of way. As a result of the collision, Balachandar fell onto the road and suffered pain of the right ankle, left lower limb, right chest and right shoulder.

53     After the accident, the Accused did not stop and continued to travel straight along Bukit Batok Street 23 towards Bukit Batok Street 25. The Accused saw that Balachandar “was still able to move” and decided not to render any assistance. He knew that he was wanted by the authorities and that if he had stopped, he would be investigated for further traffic offences.

54     A passer-by witnessed the incident, stopped to assist Balachandar and lodged a police report. Balachandar was conveyed by ambulance to Ng Teng Fong General Hospital. He was found to have sustained multiple fractures of the collarbone, neck, toes and ankle. He was given 23 days of hospitalisation leave.

55     The Accused did not possess any valid Singapore Class 3 driving licence. Between February 2022 and 4 June 2022, the Accused worked as a delivery driver and drove the Third Car to perform his delivery services.

56     For his involvement in the accident, Balachandar was administered with a stern warning for careless driving without reasonable consideration under s 65(1)(b) RTA 1961 on 7 February 2023.

Enlistment Act Offences

Facts relating to DAC-901949-2023 and DAC-901950-2023 (110TH and 111TH charges)

57     The Accused was born on 28 January 1995 and is a Singapore Citizen by birth. He was subject to the requirements of the Enlistment Act (Cap 93, 2001 Rev Ed). The Accused registered for National Service (“NS”) on 10 June 2012. He was medically graded as Physical Employment Standards (“PES”) E9 on 26 June 2020. He enlisted for full-time NS in the Army on 30 September 2022.

58     Prior to his enlistment, he was granted a deferment from November 2012 to March 2014 to complete his local studies. Thereafter, he attended one Full Medical Examination on 17 February 2014, and was given PES D pending further medical reviews.

59     The Accused failed to report for further medical reviews when Further Reporting Orders (“FROs”) were issued to him.

60     The Accused failed to comply with FROs to report for medical review on the following occasions between 25 June 2018 to 15 June 2020, for a cumulative period of 1 year, 2 months and 17 days:

61     Thereafter, from January 2021 to February 2022, the Accused was served with 52 Enlistment Notices (“EN”). He did not report for enlistment as he produced medical certificates which diagnosed him with acute respiratory symptoms.

62     On 23 February 2022, a further EN was served to him by hand at his registered address. The EN required the Accused to report to Kranji Camp III on 25 February 2022 at 10.30 am for enlistment into full-time NS. Having acknowledged the EN, the Accused failed to report for his enlistment.

63     On 25 February 2022, a house visit was conducted at the Accused’s address, but he was not at home. Multiple calls were made to contact him but to no avail. On 26 February 2022, a police gazette was raised against the Accused. On 28 September 2022, the Accused was arrested by the Police.

64     The Accused was aware that he was required to report for his enlistment, but chose not to do so as he knew that he was wanted by the authorities for committing multiple offences.

65     The Accused had failed to report for enlistment into full-time NS from 25 February 2022 to 27 September 2022, for a period of 7 months and 3 days.

Antecedents

66     The Accused was traced for numerous moneylending offences in 2015 for which he was sentenced to Reformative Training.

The Parties’ Position on Sentence

67     A table summarising the Prosecution’s and Defence’s submission on sentence is set out as follows:

Offence

Prosecution’s submission

Defence’s submission

YouTrip fraudulent scheme

12 charges under s 3(1) r/w ss 10(1) and 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”)

(5th, 8th, 10th , 11th, 13th, 16th, 19th, 20th 21st, 28th, 38th and 45th charges)

Five to seven months’ imprisonment per charge

(Five sentences to run

consecutively)

Four to five months’ imprisonment per charge

(Four sentences to run

consecutively)

Subtotal:

25 to 35 months’ imprisonment

16 to 20 months’ imprisonment

Driving-related offences

Prosecution’s submission

Defence’s submission

Three charges under s 35(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) (pre-2019 amendment)

(92nd, 98th and 104th charges)

One week’s imprisonment per charge

(concurrent)

One week’s imprisonment per charge

(concurrent)

Two charges under s 182 of the Penal Code (Cap 224, 2008 Rev Ed)

(88th and 90th charges)

Two to four weeks’ imprisonment per charge

(One sentence to run

consecutively)

One to two weeks’ imprisonment per charge

(One sentence to run

consecutively)

Two charges under s 35(1) of the RTA or Road Traffic Act 1961 (“RTA 1961”) (post-2019 amendment)

(114th and 120th charges)

Three to five months’ imprisonment per charge and five years’ DQAC

(consecutive)

Five weeks’ imprisonment and five years’ DQAC for the 114th Charge and four weeks’ imprisonment and five years’ DQAC for the 120th Charge

(consecutive)

Two charges under s 129(2)(d) of the RTA

(108th and 119th charges)

Three to four months’ imprisonment per charge

(One sentence to run

consecutively)

Four weeks’ imprisonment per charge

(One sentence to run

consecutively)

One charge under s 84(3) r/w s 84(7) of the RTA

(118th charge)

Two to four weeks’ imprisonment

(consecutive)

Two weeks’ imprisonment

(consecutive)

Subtotal:

Nine to 14 months’ and

Four to eight weeks’ imprisonment and 5 years DQAC

17 to 18 weeks’ imprisonment and 5 years’ DQAC

Cheating offence

Prosecution’s submission

Defence’s submission

One charge under s 417 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) r/w s 124(4) and p/u s 124(8) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)

(112th charge)

10 – 12 months’ imprisonment

(consecutive)

Nine months’ imprisonment

(consecutive)

Subtotal:

10 – 12 months’ imprisonment

(consecutive)

9 months’ imprisonment

(consecutive)

Enlistment Act offences

Prosecution’s submission

Defence’s submission

One charge under s 9 of the Enlistment Act (Cap 93, 2001 Rev Ed) (“Enlistment Act”)

(110th charge)

Five to six weeks’ imprisonment

(consecutive)

$2,000 fine

One charge under s 10(2) of the Enlistment Act

(111th charge)

Two to three weeks’ imprisonment

(consecutive)

$300 fine

Subtotal:

Seven to nine weeks’ imprisonment

$2,300 fine

Global Sentence

44 to 61 months’ and 11 to 17 weeks’

imprisonment

and 5 years’

DQAC

25 to 29 months’ and 17 to 18 weeks’

imprisonment,

$2,300 fine and

five years’ DQAC



The Prosecution’s submission on sentence

68     The Prosecution sought a global sentence of 44 to 61 months’ and 11 to 17 weeks’ imprisonment and five years’ DQAC

69     The Prosecution submitted that the Accused was a “recalcitrant offender” who has demonstrated “a blatant disregard for the authorities through his criminal conduct.” The Prosecution submitted that over a four-year period between 18 October 2018 and 27 September 2022, the Accused had committed 124 offences on 9 separate occasions.

70     Having first been arrested and investigated for his role in masterminding the YouTrip fraudulent scheme in February 2019, he committed several fresh offences while on bail. Subsequently, he absconded from court and became uncontactable to the authorities in September 2021, and continued to reoffend. Many of these offences were of a similar nature and involved deception employed on public officers. Taken together, they reflected a patent lack of remorse throughout the proceedings, and a worrying proclivity towards criminal behaviour.

YouTrip fraudulent scheme

71     The Prosecution submitted that the Accused’s offence caused significant harm totalling S$122,131.83.

72     The scale of the syndicate was relatively large and was carried out for a period of three months from 28 October 2018 to 28 January 2019 before it was uncovered by the authorities.

73     The scheme involved six scheme members, who obtained a total of 20 YouTrip accounts and at least 42 sets of credit or debit card information from 40 cardholders.

74     There was a transnational element to the scheme as the cash sums were withdrawn and dissipated in Malaysia. This resulted in most of the criminal proceeds not being recovered during investigations.

75     The Accused culpability was high for the following reasons:

(a)     He played a pivotal role in the fraudulent scheme. He was intimately involved as the directing mind at every stage of the scheme.

(b)     He conceived of the scheme, and either personally recruited or instructed his runners to obtain YouTrip accounts for the scheme’s use.

(c)     He instructed his runners to misappropriate credit or debit card information from unsuspecting customers.

(d)     He personally performed the unauthorised top-ups in the YouTrip accounts.

(e)     He oversaw the withdrawal of the cash sums from ATMs in Malaysia and dissipated the criminal proceeds to the other scheme members.

(f)     The Accused acted with a high degree of premeditation and planning. He realised and exploited a security flaw in the YouTrip payment service.

(g)     To successfully carry out and sustain the fraud would also entail a degree of coordination between the Accused and the other scheme members, nominees and runners. To that end, he maintained a record of the various top-ups and transactions in his iPad.

(h)     There was also a well thought out profit-sharing arrangement to entice the various scheme members and nominees to join his scheme. The Accused offered commission of between S$200 to S$1,000 for each YouTrip account obtained, and S$200 for each set of credit/debit card information obtained.

(i)     The offences were committed for profit. The Accused earned a profit of at least RM100,000. No restitution has been made and his profits have not been disgorged.

Driving-related offences

76     For the pre-2019 RTA amendment s 35(1) RTA charges (the 92nd, 98th and 104th charges), the Prosecution sought one week’s imprisonment for each charge.

77     For the post-2019 RTA amendment s 35(1) RTA 1961 charges(the 114th and 120th charges), the Prosecution sought a sentence of three to five month’s imprisonment and five years DQAC on the basis that there was a higher prescribed punishment post-2019 amendment, that the Accused drove for his own convenience for significant length of time and permitted his friend to drive for profit and the offences was committed on bail.

78     For the s 182 Penal Code offences, the Prosecution submitted for a sentence of between two to four weeks’ imprisonment. The Prosecution submitted that appreciable harm was caused as the Accused’s false information caused some waste of police resources, as separate screenings were conducted based on the false information and searches had to be conducted of his cars. The Accused’s culpability is also enhanced by his use or possession of forged documents.

79     For the false license plate charges, the Prosecution submitted that on the authority of Chong Jiajun Eugene v PP [2016] 1 SLR 365 [TAB 14] (“Eugene Chong”), the present case fell within Band 3 (aggravated offences where false licence plate used on stolen cars or to facilitate serious offences like drug trafficking, robbery, immigration offences or customs offences) with an imprisonment term of three months’ imprisonment and upwards.

80     The Prosecution sought a sentence of between three to four months’ imprisonment per charge would be appropriate.

81     For the charge of failing to render assistance, the Prosecution sought a sentence of two to four weeks’ imprisonment, after surveying various case precedents. The Prosecution submitted that the custodial threshold had been crossed as the Accused committed the offence in order to evade apprehension for serious driving offences and knew that he was wanted by the authorities for his previous offences; and Balachandar had sustained serious injuries (multiple fractures); it was wholly fortuitous that there was a passer-by who rendered timely assistance, which enabled Balachandar to receive the necessary medical attention.

Cheating charge

82     The Prosecution sought a sentence of ten to 12 months’ imprisonment on account of the following:

(a)     The amount involved in the charges is high. On the proceeded charge, the Accused submitted 20 cheques amounting to $95,900 and including the TIC-ed charge, the Accused submitted 23 cheques amounting to $112,380.

(b)     The harm caused was significant as the outstanding loss to Singtel remains at $17,521.98 and no restitution had been made.

(c)     The Accused acted with some premeditation. He prepared numerous cheques and knew how to vary his signature so that the banks would reject the submitted cheques.

(d)     The offence was an amalgamated charge punishable with twice the maximum prescribed punishment under s 124(8) CPC.

Enlistment Act offences

83     The Prosecution submitted that on the authority of PP v Sakthikanesh s/o Chidambaram [2017] 5 SLR 707 (“Sakthikanesh”), the custodial threshold had not been crossed as the Accused’s cumulative period of default was less than two years, or about one year nine months and 20 days The Prosecution submitted that this would warrant a high fine totalling at least $10,000.

84     Nonetheless, the Prosecution sought a custodial sentence as the Accused was likely to be unable to pay the fine and noted that in Tan Yan Qi Chelsea v PP [2022] SGHC 275 the High Court held that custodial sentences may be appropriate for impecunious offenders who could not afford the fines.

85     The Prosecution sought an aggregate custodial sentence of seven to nine weeks’ imprisonment for the Enlistment Act offences, with individual sentences as follows:

a)     110th charge (s 9 Enlistment Act): five to six weeks’ (consecutive); and

b)     111th charge (s 10(2) Enlistment Act): two to three weeks’ (consecutive).

The Defence’s submission on sentence

86     The Defence sought a global sentence of 25 to 29 months’ and 17 to 18 weeks’ imprisonment, $2,300 fine and five years’ DQAC.

YouTrip fraudulent scheme

87     For the YouTrip fraudulent scheme the Defence sought four to five months’ imprisonment per charge. While the Defence did not dispute that the Accused’s culpability was higher than the other co-accused persons as the Accused was the individual who informed the co-accused of his plan to perform unauthorised top-ups to YouTrip accounts and was responsible for a larger sum of top-ups, the Defence submitted that an uplift of the individual sentences to four to five months’ imprisonment per charge would adequately reflect the Accused’s level of involvement in the scheme compared to the co-accused persons.

88     The Defence submitted that the Accused’s culpability was only slightly higher than co-accused Wong for the following reasons:

a)     Wong provided the Accused with his own YouTrip account;

b)     Wong was actively involved in obtaining YouTrip accounts for the scheme’s use by persuading other individuals to open YouTrip accounts. Indeed, Mr Wong personally obtained 12 further YouTrip accounts while the Accused did not actively obtain any YouTrip accounts;

c)     Wong actively recruited three further scheme members;

d)     Wong procured 30 sets of credit card information; and

e)     Wong did not make any restitution.

89     While the Accused conceived of the scheme, Wong also played an active role in furthering the scheme. Wong was not a mere foot soldier. While the Accused was personally responsible for recruiting two scheme members, Wong was personally responsible for recruiting three scheme members and expanding the group. Further, Wong obtained a greater number of YouTrip accounts and sets of credit card information than the Accused.

90     Accordingly, it could be said that the Accused’s level of harm and culpability was higher than Wong, and a slight uplift from the three to four months’ imprisonment per charge imposed on Wong to a sentence of four to five months’ imprisonment per charge would be appropriate.

91     The Defence submitted that there was no transnational element in the present case even though monies were withdrawn from ATMs in Malaysia. The monies that were misappropriated came from bank accounts in Singapore, the instructions for the transfers and withdrawals were made in Singapore, the scheme was conceived and carried out in Singapore and the victim company was also a Singaporean company.

92     The Defence submitted that if the Court were to run the sentences for five charges consecutively, this would be substantially above the normal level of sentences for offences under s 3(1) CMA.

Driving-related offences

93     For the pre-2019 RTA amendment s 35(1) RTA charges the Defence was aligned with the Prosecution in seeking one week’s imprisonment for each charge.

94     For the post-2019 RTA amendment s 35(1) RTA 1961 charges, the Defence sought sentences of four- and five-weeks’ imprisonment for the 120th and 114th charges respectively. The Defence noted that in Seah Ming Yang Daryle v Public Prosecutor [2024] SGHC 152 (“Seah Ming Yang Daryle”) (at [73] to [83]), the appropriate benchmark sentence for the archetypal case (i.e., a case which involved a first-time offender, who was an unqualified driver who pleaded guilty, and who did not cause an accident) should be set at two weeks’ imprisonment.

95     The Defence accordingly submitted that an uplift from the two weeks’ imprisonment to not more than five week’s imprisonment for the 114th Charge and four (4) weeks’ imprisonment for the 120th Charge with five years’ DQAC for each charge would be appropriate in the present case.

96     For the s 182 Penal Code charges, the Defence submitted that appropriate sentence for the 88th and 90th Charges should be one (1) week’s imprisonment and two weeks’ imprisonment respectively as limited public resources were wasted as a result of the false information provided by the Accused as the police found a photograph of the Accused’s NRIC (identification card) in his mobile phone (88th charge) and the Accused’s identity was discovered on the same day when a different police officer arrived at the scene (90th charge).

97     For the false license plate charges, the Defence submitted that the appropriate sentence for the 108th and 119th Charges should be four weeks’ imprisonment per charge, bearing in mind the sentencing guidelines in Chong Jiajun Eugene v Public Prosecutor [2015] SGHC 285.

98     For the failure to render assistance, the Defence submitted that the appropriate sentence for the 118th Charge should be two weeks’ imprisonment.

Cheating charge

99     The Defence submitted that the appropriate sentence for the 112th Charge should be nine months’ imprisonment.

100    The Defence referred to Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756 (“Idya”) where Menon CJ stated (at [48]) that the primary yardstick for cheating offences would often be the value of the property involved and at [47] that for cheating offences that resulted in losses of between $1,000 and $15,000, custodial sentences for terms of between four and eight months’ imprisonment have been imposed in prior cases. As the loss caused to Singtel was $17,521.98, a slight upward adjustment from a sentence of eight months’ imprisonment would be appropriate.

Enlistment Act offences

101    For the 110th charge the Defence submitted for a fine of $2,000 Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter [2017] 5 SLR 707 (“Sakthikanesh”), the court held at [57] that the length of the period of default would, as a general rule, be the key consideration in the determination of the appropriate sentence. The court also stated at [60] that as a general observation, cases involving short periods of default of two years or less would generally not attract a custodial sentence.

102    As the Accused had failed to report for medical reviews for a cumulative period of 1 year, 2 months and 17 days, which was significantly shorter than the period of two (2) years as stated in Sakthikanesh, the custodial threshold had not been crossed.

103    The Defence referred to Mohammed Ibrahim s/o Hamzah v Public Prosecutor [2015] 1 SLR 1081 (“Ibrahim”), where the court held at [30] that while there were relatively few cases under s 3(1) EA, an analogy could be drawn with cases concerning offences under s 33 EA which prescribed the same punishment as s 4(2) EA for a s 3(1) EA offence. The court held accordingly at [31] submitted that fines of $600 to $2,000 were imposed in respect of periods of default ranging from about one year and seven months to slightly over two years. As such, the Defence submitted that a fine of $2,000 would be appropriate for the 110th charge and a fine of $300 would be appropriate for the 111th charge.

The Court’s decision on sentence

The sentences for the YouTrip fraudulent scheme

104    It would be helpful to set out a pictorial depiction of the YouTrip fraudulent scheme as follows[note: 1]:

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105    I also set out the particulars of one of the CMA charges (the 5th charge) which was representative of the YouTrip fraudulent scheme:

…are charged that you, between 28/10/2018 and 9/1/2019, in Singapore, did engage in a conspiracy with Loh Hong Jun, Wong Chen Yui, Ong Bee Lay, Han Shu Zhen, Bai Siyan and others, to commit unauthorised access to computer material, namely, knowingly causing the YouTrip mobile application to access YouTrip data held in the Amazon Cloud server in Singapore without authority, and in pursuance of that conspiracy and in order to do that thing, an act did take place, to wit, you used the credit card details of [redacted] belonging to Chang Sien Kheng to perform unauthorised funds transfers amounting to S$5405.42 to YouTrip card [redacted], which acts were committed in consequence of your abetment, and you have thereby committed an offence punishable under section 3(1) read with sections 10(1) and 11A of the Computer Misuse Act, Chapter 50A.

106    The Accused was the mastermind of the scheme. As could be seen from the pictorial depiction, the Accused sat at the apex of the multi-layered scheme and instructed various persons to open YouTrip accounts who in turned instructed more persons to open more YouTrip accounts. Wong and Loh in turn persuaded 16 other individuals to open YouTrip accounts. The Accused would then use the stolen card details to perform the unauthorised top-ups, to a maximum sum of $3,000 per YouTrip account. The scheme members would then withdraw the stored value in the YouTrip accounts in cash using the YouTrip cards at ATMs in Malaysia. The Accused would request his runners to withdraw the cash on his behalf, while he waited in the vicinity of the ATMs. The cash withdrawn would then be split amongst the scheme members.

107    In total, the scheme obtained at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders.

108    The successful top-ups performed by the scheme amounted to $128,171.46, of which $6,039.63 was successfully recovered by the Police during investigations. The total loss sustained by the victim company was $122,131.83. The Accused received a profit of at least RM100,000. He had not made any restitution.

109    Before the Accused’s plead guilty mention, five other co-accused persons of the scheme had already pleaded guilty and were sentenced as follows:

Scheme member

Charges

Sentence

Wong Chen Yui (“Wong”)

Provided own account; obtained 12 further accounts; recruited three scheme members; helped procure 30 sets of credit card information and withdrew cash from Malaysia

Amount involved: $29,999.08 (proceeded), $56,451.49 (total)

43 CMA charges

(Proceeded on ten charges, TIC 33 charges)

Three to four months’ imprisonment per charge

Global sentence:

Eight months and 11 weeks’ imprisonment

(taking into account one week remand period)

Loh Hong Jun (“Loh”)

Provided own account; obtained one further account; withdrew cash from Malaysia

Amount involved: $30,461.53 (proceeded), $44,734.19 (total)

28 CMA charges

(Proceeded on six charges, TIC

22 charges)

Two to three months’ imprisonment per charge

Global sentence

Eight months’ imprisonment

Ong Bee Lay (“Ong”)

Obtained four accounts and 20 sets of credit card information

Amount involved: $16,670.84 (proceeded), $28,203.06 (total)

20 CMA charges

(Proceeded on six charges, TIC 14 charges)

Ten weeks’ imprisonment per charge

Global sentence:

29 weeks’ imprisonment

(taking into account one week remand period)

Han Shuzhen (“Han”)

Provided own account; obtained three further accounts and 10 sets of credit card information

Amount involved: $9,001.99 (proceeded), $16,773.99 (total)

Ten CMA charges

(Proceeded on three charges, TIC seven charges)

Ten weeks’ imprisonment per charge

Global sentence

20 weeks’ imprisonment

Bai Siyan (“Bai”)

Provided own account; obtained three further accounts; instructed one nominee to lie to CAD

Amount involved: $8,999 (proceeded),

$16,893.96 (total)

16 CMA charges

(Proceeded on three charges TIC 13 charges)

Five weeks’ imprisonment per charge

One 204A PC charge

Two weeks’ imprisonment

Global sentence

12 weeks’ imprisonment



110    The parity principle as stated in Public Prosecutor v Ramlee and another action [1998] 3 SLR(R) 95 (“Ramlee”) at [7] dictated that where there were multiple offenders, the sentences passed on them should be the same unless there was a relevant difference in their responsibility for the offence:

Where two or more offenders are to be sentenced for participation in the same offence, the sentences passed on them should be the same, unless there is a relevant difference in their responsibility for the offence or their personal circumstances … An offender who has received a sentence that is significantly more severe than has been imposed on his accomplice, and there being no reason for the differentiation, is a ground of appeal if the disparity is serious. …

[emphasis added]

111    This was one such case where there were different levels of responsibilities among the co-accused persons in the scheme resulting in the need for differentiated sentencing. This was already reflected in the different sentences passed on the co-accused persons where the number of charges preferred and proceed against them were not the same.

112    Among the co-accused persons already sentenced, Wong had the greater degree of involvement. His sentence was three to four month’s imprisonment per charge and a global sentence of eight months and 11 weeks’ imprisonment, taking into account the one-week remand period, If the one-week remand period was not accounted for, the sentence would be eight months and 12 weeks’ imprisonment, which would be close to 11 months’ imprisonment.

113    The Defence submitted that Wong was not a mere foot soldier and while the Accused was personally responsible for recruiting two scheme members, Wong was personally responsible for recruiting three scheme members and expanding the group. Further, Mr Wong obtained a greater number of YouTrip accounts and sets of credit card information than the Accused.

114    The fact of the matter was that the Accused stood at the apex of the multi-layered scheme as the mastermind.

115    The Accused was responsible for the top ups amounting to $128,171 which was more than twice that of Wong ($56,451) and had around twice (87) as many charges (43) as Wong. As such, I was of the view that a significant uplift from Wong’s individual sentences were in order. Further, I rejected the Defence’s submissions that there was no transnational element as the cash sums were withdrawn and dissipated in Malaysia and this resulted in most of the criminal proceeds not being recovered during investigations.

116    I also did not find the Defence’s comparison of the present case to Public Prosecutor v Casper Ang (Hong Weiliang) [2022] SGDC 206 (“Casper Ang”) as helpful. Casper Ang involved sums of $68,065, $100,001 and $50,000, where the total sum involved was $356,600.80 and the court sentenced the offender to 20 months’ imprisonment per charge with two to run consecutively leading to a 40 months’ imprisonment. In the present case, the individual sentences imposed were much lower than that in Casper Ang.

117    The Defence referred to Public Prosecutor v Kong Wei Keong Marcus [2022] SGMC 48 (“Marcus Kong”), the offender was charged with 21 charges under s 3(1) CMA for the unauthorised transfer of funds from the bank account of the victim, who he was in a romantic relationship with at the time. The transfers involved sums ranging from $5 to $5,000. The court in Marcus Kong had proposed tariffs in sentencing (at [288]):

a)     For offences involving up to $500: one (1) to two (2) weeks’ imprisonment;

b)     For offences involving between $700 to $1,000: one (1) month’s imprisonment; and

c)     For offences involving between $2,000 to $3,000: three (3) month’s imprisonment.

118    The Defence also referred to the sentence imposed in Public Prosecutor v Leong Kiat Hoe [2021] SGDC 133 (“Leong Kiat Hoe”), where the offender was sentenced to five months’ imprisonment for a charge under s 3(1) CMA involving a sum of $8,500.

119    I did not find these two cases helpful. Quite apart from the fact that any tariffs or benchmarks proposed by the District or Magistrate’s courts were not binding on me, cases of fraud under the CMA can involve a myriad of factual scenarios depending on the level of culpability of the offender and thus cannot be pigeonholed into a standard tariff or benchmark based simply on the amounts involved. In my view, it would be more helpful to reference the sentences for the co-accused persons in this case and then calibrate accordingly based on the Accused’s level of harm and culpability.

120    That said, the Prosecution and Defence’s sentencing position were not that far apart in terms of individual sentences. The Prosecution sought five to seven months’ imprisonment per charge whereas the Defence sought four to five months’ imprisonment per charge. In this regard, the Defence was prepared to concede that the Accused’s level of harm was culpability was higher than Wong.

121    In the circumstances, for charges where the amount was less than $5,000, I imposed a sentence of five months’ imprisonment. For charges where the amount was $5,000 or more, I imposed a sentence of six months’ imprisonment.

122    As to how many of such sentences should run consecutively, this would be discussed at [151] to [172] when all the individual sentences have been determined.

Sentences for the driving-related offences

123    For the pre-2019 s 35 (1) RTA charges, the Prosecution and the Defence submitted for a sentence of one week’s imprisonment. I agreed that the custodial threshold had been crossed and I imposed a sentence of one week’s imprisonment each for the 92nd, 98th and 104th charges.

124    In respect of the post-2019 s 35 (1) RTA 1961 charges, as held in Seah Ming Yang Daryle the benchmark sentence for the archetypical case would be two week’s imprisonment and two year’s DQAC.

125    Both the Prosecution and Defence agreed that an uplift from the benchmark sentence of two weeks’ imprisonment in Seah Ming Yang Daryle was in order as there were aggravating factors which took this beyond the archetypical case. Specifically, I noted that the Accused had driven without a licence for three to four months, had caused a traffic accident (in the case of the 118th charge), permitted his friend Gan who was similarly unlicensed to use the car (in the case of the 120th charge) and had committed these offences while on bail. I did not consider the use of false license plates as an aggravating factor to justify an uplift as the Accused would be separately sentenced for this offence. All things considered, I did not agree with the Prosecution this warranted an uplift all the way to three to four months’ imprisonment. I accordingly sentenced him to six weeks’ imprisonment for each of 114th and 120th charges. This would already be a significant uplift from the two weeks’ imprisonment term archetypical case in Seah Ming Yang Daryle.

126    Turning to the length of the disqualification order, the Prosecution and Defence agreed on five years’ DQAC to be imposed for each of the 114th and 120th charges. In any event, I considered that a significant uplift from the benchmark of two years’ DQAC in Seah Ming Yang Daryle was in order. In this regard, I had considered the factors to be considered as to the length of disqualification as set out in Kwan Weiguang v Public Prosecutor [2022] 5 SLR 766, including the Accused’s prolonged period of driving without a license, permitting an unlicensed driver Gan to drive, that an accident was caused in one instance (the 114th charge) with relative serious injuries and his use of deception on police officers as to his true identity when stopped There were also numerous driving-related TIC charges which were taken into consideration including that for inconsiderate driving under s 65(b) RTA, using a vehicle without insurance coverage under s 3(1) MVA, failing to stop after an accident under s 84(1) RTA and failure to lodge a report within 24 hours under s 84(2) RTA and driving a vehicle registered outside Singapore under s 12(1)(a) RTA.

127    For the s 182 Penal Code charges, I agreed with the Prosecution and Defence that the custodial threshold had bene crossed after considering the degree of harm caused by the offence as per Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447 at [50] which would include wastage of public investigative resources.

128    I imposed a sentence of one week’s imprisonment for the 88th charge and two weeks’ imprisonment for the 90th charge. The higher sentence for the 90th charge reflected the fact that the more police sources were expended to uncover the Accused’s false statement where Sgt Fathur conducted searches on various Police systems, but was unable to establish the Accused’s identity and Sgt Fathur only realised that the Accused was lying when Sgt Haikal arrived at the scene, and recognised the Accused from a prior investigation. This could be contrasted with the 88th charge where the Accused eventually admitted to providing false particulars when a photograph of his genuine NRIC was found in his mobile phone.

129    For the charges of using false license plates under s 129(2)(d) RTA, in Eugene Chong, See JC (as he then was) held at [22]:

It would in fact be very likely that, in other cases, false number plates are affixed in order to facilitate the commission of other offences. I would emphasise that a custodial term is still warranted in such cases. Imprisonment of two weeks upwards should be expected even if they may be relatively minor offences such as evasion of ERP, and I would venture to suggest that a longer term in the range of four weeks would be appropriate where there is non-payment of road tax and/or insurance. There will also be aggravated offences for which more substantial sentences of imprisonment would be warranted, such as where false number plates are used on stolen cars or to facilitate the commission of more serious offences like drug trafficking, robbery, immigration or customs offences, to name just a few. In such cases, the intent to evade detection is manifestly clear and the starting point for the sentencing court would be to consider a sentence of three months’ imprisonment upwards.

[emphasis added]

130    See JC’s reference in Eugene Chong to aggravated offences for which the use of false licence plate to facilitate included serious offences like drug trafficking, robbery, immigration offences or customs offences. For such offences the starting point would be an imprisonment term of three months and upwards.

131    I was of the view that the Prosecution’s submission for a sentence of three to four months’ imprisonment was not warranted for the following reasons. The offences for which the false license plates were used by the Accused to facilitate (the use of a de-registered car and driving without a licence) were not as serious as those described in Eugene Chong which referred to drug trafficking, robbery, immigration offences or customs offences to attract the starting point of three months’ imprisonment. Further, the court in Eugene Chong described the starting point of three month’s imprisonment which had not factored in the offender’s plea of guilt.

132    After factoring in the Accused’s plea of guilt and considering the offences for which the false licensed plates were used to facilitate but noting that the offence was committed while the Accused was on court bail, I imposed a sentence of six weeks’ imprisonment each for the 108th and 119th charges.

133    For the charge of failing to render assistance under s 84(3) RTA, several sentencing precedents tendered by the parties showed that penalties ranged from fines to imprisonment sentences were imposed. This was undoubtedly because the factual scenarios for such an offence could vary widely.

134    That said, I agreed with the Prosecution that two important sentencing factors would be (a) the severity of the offender’s offence which he was attempting to evade liability for and (b) the seriousness of the other party’s injuries and with both parties that the custodial threshold had been crossed in the present case.

135    In this case, the Accused failed to render assistance as he was wanted by the authorities for driving related offences. Further, Balachandar had sustained serious injuries, namely multiple fractures of the collarbone, neck, toes and ankle and was given 23 days of hospitalisation leave.

136    It was indeed fortuitous that there was a passer-by who rendered timely assistance, which enabled Balachandar to receive the necessary medical attention at Ng Teng Fong General Hospital.

137    All thing considered I imposed a sentence of two weeks’ imprisonment for the 118th charge.

Sentence for the cheating offence

138    In Idya Menon CJ held at [47]:

In my judgment, a custodial sentence will generally be appropriate as long as the offence in question causes a victim to part with property that has more than negligible value. … The cases cited in Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) (“Sentencing Practice”) indicate that custodial sentences have been imposed where the s 417 offence in question was committed for financial gain.

[Emphasis added]

139    Menon CJ went to highlight the various sentencing factors to consider at [48]:

As observed in Sentencing Practice, there are numerous factors that must be taken into account in every case. The primary yardstick will often be the value of the property involved. However, where the offence entails the misuse of a financial instrument or facility which threatens the conduct of legitimate commerce, the need for general deterrence is likely to take centre stage: see PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando Payagala”) at [88] in relation to the misuse of credit cards. Other factors such as the number and vulnerability of victims and the level of premeditation and deception involved will also feature to varying degrees in different cases: see Sentencing Practice at pp 834 to 838.

[Emphasis added]

140    In calibrating the length of the custodial sentence, I found the following factors relevant:

a)     The amount involved in the proceed charges comprised 20 cheques amounting to $95,900. After taking into account the TIC charges, the Accused had submitted 23 cheques amounting to $112,380.

b)     The outstanding loss to Singtel was $17,521.98. No restitution had been made.

c)     The Accused acted with premeditation as he prepared numerous cheques and knew that he insufficient funds at the time he submitted the cheques. He would vary his signature to that the banks would reject the submitted cheques because of irregular signatures.

d)     The offence was an amalgamated charge punishable with twice the maximum prescribed punishment under s 124(8) CPC.

141    The Prosecution sought a sentence of ten to 12 months’ imprisonment and the Defence sought a sentence of nine months’ imprisonment.

142    In Idya, Menon CJ noted at [47] that the cases indicate that custodial sentences for terms of between four and eight months’ imprisonment have been imposed for cheating offences that resulted in losses of between $1,000 and $15,000.

143    While the offender in Idya was sentenced to three months’ imprisonment for the use of a dishonoured cheque for a sum of $10,509, full restitution was made unlike the present case and in Idya only one cheque was involved whereas the present case involved 23 dishonoured cheques. Further, the loss to Singtel was $17,521.98 which was slightly over the $15,000 mark as noted in Idya where sentences of up to eight months’ imprisonment were imposed for losses of between $1,000 and $15,000.

144    In the circumstances, I was of the view that a sentence of nine and a half month’s sentence would be appropriate. At the same time, I considered the fact that the Accused was remanded for investigations from 11 to 20 February 2019 and I accordingly made a downwards adjustment in sentence and rounded it down to nine months’ imprisonment for the 112th charge.

Sentences for the Enlistment Act offences

145    The Defence had relied on Ibrahim in submitted for fines of $2,000 and $300 for the 110th and 111th charge respectively. Ibrahim dealt with the issue whether a custodial sentence was appropriate where the period of default was less than two years. Further, it should be noted that Ibrahim was decided before Sakthikanesh, and it was Sakthikanesh which had set out the sentencing framework for Enlistment Act offences.

146    In Ibrahim, the offender, who was 20 years old, was charged under s 3(1) Enlistment Act for failure to comply with a notice to report for registration for National Service. The High Court noted at [42] that the offender had since registered for National Service and would be fulfilling his obligations. The High Court accordingly imposed a fine of $3,000 in lieu of the two months’ imprisonment imposed by the sentencing court. In my view, one of the key differences between Ibrahim and the present case was that the offender in Ibrahim was a youthful offender and had since registered for National Service and would be fulfilling his obligations.

147    In Sakthikanesh it was held at [48] that general deterrence was the key objective in the sentencing of individuals who defaulted on their obligations to serve NS. The High Court further held that at [87] that as a general rule, the length of the period of default would be the key consideration in the determination of the appropriate sentence for an NS defaulter, although all the circumstances surrounding the commission of the offence should also be taken into account. The High Court held at [89] that a custodial sentence was typically only imposed where a period of default exceeds two years and proceeded to set down the following sentencing benchmarks:

S/No

Length of Period of Default

Starting Point for Sentence (Imprisonment Term)

1

2 to 6 years

2 to 4 months

2

7 to 10 years

5 to 8 months

3

11 to 16 years

14 to 22 months

4

17 to 23 (or more) years

24 to 36 months



148    In the present case, the period for which the Accused had failed to report was one year, two months and 17 days for the 110th charge and seven months and three days for the 111th charge. While the cumulative period of the Accused failing to report did not cross the two-year mark so as to attract a custodial sentence, the combined period at one year, nine months and 20 days was close to two years. As such, the fine should be sufficiently high to act as a deterrent. In this regard, the Accused disregarded numerous further reporting orders and enlistment notices sent to him between 2018 and 2022. Further, he did not voluntarily surrender and was arrested after a police gazette was raised.

149    In the circumstances, I agreed with the Prosecution that a global fine of $10,000 for both charges was appropriate. I did not impose a custodial sentence as sought by the Prosecution based on the Accused’s inability to pay as the Accused’s father who was present in court, had confirmed that he was able to pay the fine on his behalf and made the first payment of $6,000.

150    I accordingly imposed a fine of $6,000 i/d three weeks’ imprisonment for the 110th charge and a fine of $4,000 i/d two weeks’ imprisonment for the 111th charge. The remaining fine of $4,000 was to be paid by 29 November 2024.

Consecutive sentences

151    In Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 Menon CJ explained when consecutive sentences should be imposed at [41]:

As a general rule, a multiple offender who has committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively.

152    Menon CJ further explained the rationale of consecutive sentences at [43]:

In many situations, concurrent sentences for unrelated offences would not adequately serve, and in fact may undermine, the sentencing considerations that underlie the individual sentences comprising the aggregate term. For one thing, the imposition of concurrent sentences for unrelated offences would afford an offender who has already committed an offence less or no real incentive to refrain from committing a further offence, in so far as such a sentencing position would result in the offender not having to bear any real consequence for the further offending. This creates a distorted incentive that detracts from the deterrent value of the individual sentences notionally imposed.

153    Section 307(1) CPC provided that where there were three or more distinct offences for which the Accused has been sentenced to imprisonment (as in the present case), at least two sentences of imprisonment were to be consecutive. Menon CJ explained the operation of s 307(1) CPC and consecutive sentences in Raveen Balakrishnan at [52]:

The general rule of consecutive sentences for unrelated offences does not contravene s 307(1) or render it otiose. The provision retains its relevance in that it operates regardless of whether the multiple offences are related or otherwise. Therefore, even if all or some of the offences are related, s 307(1) applies to require that at least two sentences should run consecutively. Indeed, in my judgment, s 307(1) of the CPC, the one transaction rule, and the general rule of consecutive sentences for unrelated offences should be regarded as complementary principles that collectively help a court decide how sentences should be ordered to run in relation to a multiple offender.

154    On what amounted to an “unrelated offence”, Menon CJ observed at [69] as follows:

...to say that two offences are “unrelated” means that they are not “part of a single transaction”; conversely, to describe them as “part of a single transaction” means they are not “unrelated”. The two inquiries are two sides of the same coin.

155    In Mohammed Shouffee bin Adam v PP [2014] SGHC 34 Menon CJ observed at [30] that “the better articulation of the rationale for the rule was found in the principle that consecutive sentences are not appropriate if the various offences involve a “single invasion of the same legally protected interest” and explained further at [31] that “the real basis of the one-transaction rule is unity of the violated interest that underlies the various offences.”

156    Menon CJ highlighted that there were exceptions to the general rule of consecutive sentences for unrelated offences. For our purposes, the relevant exceptions were first, the totality principle and second, that the general rule of consecutive offences was not mandatory but if a court consciously chose not to run the sentences consecutively it needed to explain its reasons.

157    One of the key areas of contention between the Prosecution and Defence was how many sentences relating to the YouTrip fraudulent scheme should run consecutively. The Prosecution submitted for five such sentences to run consecutively while the Defence submitted for four such sentences to run consecutively.

158    In the present case the YouTrip fraudulent scheme concerned at least 20 YouTrip accounts, and at least 42 sets of credit or debit card information from 40 cardholders. On a totality basis, it would not have been possible to run all sentences for the 12 proceeded CMA charges to run consecutively even though they involved different victims and separately legal protected interests.

159    That said, I disagreed with the Defence’s submission that if the sentences for five charges consecutively, this would be substantially above the normal level of sentences for offences under s 3(1) CMA and that the Accused should therefore not receive more than double of what Wong received.

160    A similar submission was rejected by the High Court in Navaseelan Balasingam v Public Prosecutor [2007] 1 SLR (R) 767 where Tay J (as he then was) held at [27]:

With respect, in a case like the present, where there are multiple charges, the district judge ought not to be unduly wary of the maximum provided for the “most serious offence” (which would be ten years’ imprisonment but for which the district judge could only sentence up to seven years for the reasons stated earlier), because there are at least five such offences here. In other words, the maximum punishment in this case is not ten years’ imprisonment but five times ten years’ imprisonment, even without taking into consideration the theft charges. Pursuant to s 18 of the CPC (see [25] above), at least two of the sentences must be consecutive. With the enhanced sentencing jurisdiction of the district judge provided in s 17 of the CPC (reproduced at [33] below), the maximum possible sentence that he could impose in this case is therefore 14 years’ imprisonment. It would be wrong, for instance, for the High Court to be wary of sentencing an offender who has raped three victims beyond the maximum of 20 years’ imprisonment provided for one offence of rape (under s 376 of the Penal Code). Such a view accords with the position taken by the Court of Appeal in Kanagasuntharam v PP ([12] supra) (involving one charge of rape with hurt, one charge of fellatio and one charge of anal intercourse) which noted (at [17]):

Although the total term achieved by this combination was 22 years, which was in excess of the 20-year maximum term prescribed by s 376(2) for the charge of aggravated rape, the most serious charge, this could not be said to be wrong in principle in view of what we have said above of the relation between s 18 of the CPC and the totality principle.

[emphasis added]

161    As such, in a case such as this where there were multiple charges, the Court should not be constrained by the maximum sentence of two years’ imprisonment for a singular CMA charge. To be so constrained would result in a manifestly inadequate sentence given the multiple charges in the present case and the operation of s 307(1) CPC where at least two of the sentences must run consecutively.

162    As I had earlier indicated, among the co-accused persons, Wong had the greater degree of involvement. He was sentenced to a global sentence of eight months and 11 weeks (after adjustment for a one-week remand period). Eight months and 12 weeks’ imprisonment (if there was no one week remand period accounted for) was close to 11 months’ imprisonment.

163    Given the role of the Accused at the apex of the scheme as the mastermind, as one who recruited members of the scheme who in turn recruited more members and was responsible for the top ups amounting to $128,171, I was of the view that a significant uplift from Wong’s global sentence was in order. Further, there were other co-accused persons who were involved in the scheme, and this should be factored in as well in the Accused’s total sentence as they were either recruited by the Accused or by someone else in the scheme. While the Accused may not have personally brought some of them in, his sentence would reflect his position as the mastermind and administrator of the scheme. As the mastermind of the scheme, the Accused offered a commission of between $200 to $1,000 for each YouTrip account, which would incentivise his co-accused persons to recruit more and more members into the scheme. Further, I agreed with the Prosecution’s submission that to successfully carry out and sustain the scheme would entail a degree of coordination between the Accused and the other scheme members, nominees and runners. To that end, he maintained a record of the various top-ups and transactions in his iPad which he had disposed of.

164    As there were a total of 87 such CMA charges preferred against the Accused, I was of the view that it would be proportionate to have five out of the twelve proceeded CMA sentences to run consecutively. In this case, I ordered the sentences for the 10th , 11th , 16th , 19th and 38th charges to run consecutively, which all involved different credit/debit card victims. This led to a total sentence of 27 months’ imprisonment for the YouTrip fraud.

165    The Defence had referred to the case of Public Prosecutor v Cheng Jun [2020] SGDC 106 (“Cheng Jun”) where the offender, a financial manager, logged in the company’s bank account and transferred them to his own account. The Defence submitted that the offender in Cheng Jun was sentenced to 15 months’ imprisonment for an amount of $144,790.74 and the duration of offending was more than three years whereas the total loss to the victim company in the present case was S$122,131.83 and the duration of offending was shorter.

166    In my view, there were distinct differences between Cheng Jun and the present case. First, the offender in Cheng Jun operated alone where the present case was a scheme with multiple offenders of which the Accused was the mastermind. In Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180 the court held at [31] that where an offender commits the offence as part of a syndicate, this was an established aggravating factor that may justify an enhanced sentence in the interest of general deterrence: Second, there was only one victim in Cheng Jun whereas if we accounted for the credit or debit card holders in the present case there were at least 40 cardholders. Third, the global sentence in Cheng Jun was 45 months’ imprisonment after accounting for all the amounts taken which amounted to $1,293,496.13.

167    For the remaining offences, there was no real dispute between the Prosecution and Defence in the sentences for the remaining offences which would run consecutively. In fact, the Prosecution has sought for two of the post-2019 RTA amendment s 35(1) RTA 1961 charges to run consecutively but I was of the view that it would suffice, on a totality basis, for one of them to run consecutively.

168    I accordingly ordered the sentences for the following charges to run consecutively together with the 5 sentences for the YouTrip fraud:

a)     Post-2019 RTA amendment s 35(1) RTA 1961 charge (114th

charge)

b)     One s 182 Penal Code charge (90th charge)

c)     One s 129(2)(d) RTA charge (108th charge)

d)     One s 84(3) RTA charge (118th charge)

e)     Section 417 Penal Code charge (112th charge).

169    This resulted in a global sentence of 36 months’ and 16 weeks’ imprisonment, $10,000 fine and 5 years’ DQAC.

170    In ADF v Public Prosecutor and another appeal [2010] 1 SLR 874 (“ADF”) the Court of Appeal held at [146] that an order for more than two sentences to run consecutively ought to be given serious consideration in dealing with distinct offences when one or more of the following circumstances were present namely:

(a)     dealing with persistent or habitual offenders;

(b)     there was a pressing public interest concern in discouraging the type of criminal conduct being punished;

(c)     there were multiple victims; and

(d)     other peculiar cumulative aggravating features were present.

171    I found that all four circumstances cited by ADF were present in this case. The Accused was a persistent offender in view of the numerous charges with regard to the YouTrip fraud as well as the multiple driving offences of a similar nature, there was a pressing public interest in deterring the misuse of financial instruments or facilities’ such as the YouTrip card which would threaten the conduct of legitimate commerce (see Idya at [47]), there were multiple victims in this case and the Accused had committed a number of the offences while on bail. Further, the Accused became uncontactable to the authorities after September 2021, and was only apprehended one year later in September 2022, after a warrant to arrest was issued in April 2022. There was a disturbing and persistent tendency of the Accused to commit acts of deception on multiple victims, be it the YouTrip victims, Singtel or police officers (regarding the driving related offences).

172    In my view, the global sentence of 36 months’ and 16 weeks’ imprisonment, $10,000 fine and 5 years’ DQAC did not offend the totality principle and adequately reflected the criminality of the Accused’s conduct.

Conclusion on sentence

173    The sentences imposed on the Accused were accordingly as follows:

S/N

Charge number

(charge)

Offence

Court’s sentence

Consecutive/ Concurrent

1.

MAC-905292-

2020 (5th )

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

2.

MAC-905295-

2020 (8th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

3.

MAC-905297-

2020 (10th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

4.

MAC-905362-

2020 (11th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

5.

MAC-905364-

2020 (13th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

6.

MAC-905367-

2020 (16th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Consecutive

7.

MAC-905370-

2020 (19th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment s

Consecutive

8.

MAC-905371-

2020 (20th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Six months’ imprisonment

Concurrent

9.

MAC-905372-

2020 (21st)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

10.

MAC-905379-

2020 (28th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

11.

MAC-905389-

2020 (38th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Consecutive

12.

MAC-905396-

2020 (45th)

Section 3(1) r/w ss 10(1) and 11A

Computer Misuse Act (Cap 50A, 2007 Rev Ed)

Five months’ imprisonment

Concurrent

13.

MAC-907015-

2020 (88th)

Section 182 Penal Code (Cap 224, 2008 Rev Ed)

One week’s imprisonment

Concurrent

14.

MAC-907574-

2020(90th)

Section 182 Penal Code (Cap 224, 2008 Rev Ed)

Two weeks’ imprisonment

Consecutive

15.

DAC-924048-2020 (92nd)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

16.

DAC-924054-

2020 (98th)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

17.

MSC-903130-

2020 (104th)

Section 35(1) r/w s 35(3) p/u s

131(2)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

One week’s imprisonment

Concurrent

18.

MSC-903134-

2020 (108th)

Section 129(2)(d) p/u s 129(2)(iii)

Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment

Consecutive

19.

DAC-901949-

2023 (110th)

Section 9 r/w s 33(a) Enlistment Act (Cap 93, 2001 Rev Ed)

$6,000 fine i/d three week’s imprisonment

NA

20.

DAC-901950-

2023 (111th)

Section 10(2) r/w s 33(a) Enlistment Act (Cap 93, 2001 Rev Ed)

$4,000 fine i/d two weeks’ imprisonment

NA

21.

DAC-901979-

2023 (112th)

Section 417 Penal Code (Cap 224, 2008 Rev Ed) r/w s 124(4) p/u s

124(8) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Nine months’ imprisonment

Consecutive

22.

DAC-902125-

2023 (114th)

Section 35(1) p/u s 35(3)(a) Road Traffic Act 1961

Six weeks’ imprisonment and five years’ DQAC from date of release

Consecutive

23.

DAC-902129-

2023 (118th)

Section 84(3) r/w s 84(7) p/u s 84(8)(a) Road Traffic Act 1961

Two weeks’ imprisonment

Consecutive

24.

MSC-900648-

2023 (119th)

Section 129(2)(d) p/u s 129(2)(iii)

Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment

Concurrent

25.

MSC-900649-

2023 (120th)

Section 35(1) p/u s 35(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed)

Six weeks’ imprisonment and five years’ DQAC from date of release

Concurrent

 

Global sentence

36 months and 16 weeks’

imprisonment, $10,000 fine and five years’ DQAC (from date of release)



Backdating

174    The sentence of imprisonment was backdated to the Accused’s arrest date of 28 September 2022. As no bail was offered, he had been remanded from that date to the date of the plead guilty mention.

175    The earlier remand period of 11 to 20 Feb 2019 has been accounted for in the downward adjustment in the sentence for the s 417 PC charge (112th charge).

176    The Accused is currently serving sentence.

[note: 1]Taken from the Prosecution’s Schedule of Offences, page 33

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Misuse of Drugs Act (Cap 185, 2008 Rev Ed) – Section 8(b)(ii) of the Misuse of Drugs Act – Sentencing factors – Advanced age of accused"],"date":"2024-10-10","court":"District Court","case-number":"District Arrest Case No. 907697 and 907698 of 2021, Magistrate's Appeal No 9177-2024-01","title":"Public Prosecutor v Nasir Bin Mohamad Nor","citation":"[2024] SGDC 258","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32294-SSP.xml","counsel":["DPP Heershan Kaur, Attorney General's Chambers, for the prosecution","Mumtaj Banu d/o Abdul Kalam Azad, Mumtaj Banu Law Corporation, for the accused"],"timestamp":"2024-10-19T16:00:00Z[GMT]","coram":"Lim Wee Ming","html":"Public Prosecutor v Nasir Bin Mohamad Nor

Public Prosecutor v Nasir Bin Mohamad Nor
[2024] SGDC 258

Case Number:District Arrest Case No. 907697 and 907698 of 2021, Magistrate's Appeal No 9177-2024-01
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Lim Wee Ming
Counsel Name(s): DPP Heershan Kaur, Attorney General's Chambers, for the prosecution; Mumtaj Banu d/o Abdul Kalam Azad, Mumtaj Banu Law Corporation, for the accused
Parties: Public Prosecutor — Nasir Bin Mohamad Nor

Criminal Procedure and Sentencing – Sentencing – Misuse of Drugs Act (Cap 185, 2008 Rev Ed) – Section 8(b)(ii) of the Misuse of Drugs Act – Sentencing factors – Advanced age of accused

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9177/2024/01.]

10 October 2024

District Judge Lim Wee Ming:

Introduction

1       The accused claimed trial to two charges for the unauthorised consumption of monoacetylmorphine and methamphetamine (“the drugs”). Both charges are for what is commonly known as LT2 offences, for offenders with a significant history of drug consumption, where there is a mandatory minimum imprisonment term of seven years.

2       At the end of the trial, I found the accused guilty and convicted him of both charges.

3       At the hearing of the sentencing submissions, the prosecution submitted for nine years’ imprisonment, while defence counsel submitted for eight years and six months’ imprisonment. I sentenced the accused to nine years’ imprisonment. The accused is currently serving his sentence.

4       As the accused has filed an appeal only against sentence and not against conviction, the grounds herein will briefly deal with the grounds for conviction and will elaborate more on the grounds for sentence.

Charges

5       The accused claimed trial to the following two charges:

(a)     “You, … are charged that you, on or before 22 March 2021, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, monoacetylmorphine without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA,

and further, that you, before the commission of the said offence, and were on 13 December 2006 in Subordinate Court No. 24, vide DAC053786/2006, convicted of an offence for the consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”) and punished under s 33A(1) of the MDA 2001 with 5 years’ imprisonment and 3 strokes of the cane, which conviction and sentence have not been set aside to date, you shall now be punished under s 33A(2) of MDA.”

(b)     “You, … are charged that you, on or before 22 March 2021, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, methamphetamine without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA,

and further, that you, before the commission of the said offence, were on 13 December 2006 in Subordinate Court No. 24, vide DAC053786/2006, convicted of an offence for the consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”) and punished under s 33A(1) of the MDA 2001 with 5 years’ imprisonment and 3 strokes of the cane, which conviction and sentence have not been set aside to date, you shall now be punished under s 33A(2) of the MDA.”

Facts

6       The accused was on bail for an earlier drug consumption charge, when he was arrested on 22 March 2021 for jumping bail. Urine samples were taken from the accused and the accused’s urine tested positive for monoacetylmorphine and methamphetamine.[note: 1]

7       A long statement was recorded from the accused under section 22 of the Criminal Procedure Code (“CPC”), by Investigating Officer, Angie Poh, on 23 April 2021.[note: 2] In the long statement, the accused admitted to consuming the drugs.

8       The long statement was recorded from the accused in English. At the trial, the accused alleged that he did not understand English,[note: 3] and claimed that the long statement was fabricated.[note: 4] The accused pointed out to earlier statements recorded from him by Angie Poh, that were interpreted to him in Malay.[note: 5] At the trial, the accused initially chose to have a Malay interpreter, but on the sixth day of the trial, he took the position that he was more comfortable in Mandarin,[note: 6] and thereafter a Mandarin interpreter interpreted for the accused.

Trial

9       At the trial, the prosecution’s case rested largely on:

(a)     Two certificates under section 16 of the Misuse of Drugs Act stating that the urine samples of the accused tested positive for the drugs.[note: 7] Two Health Sciences Authority (“HSA”) analysts, Ng Xue Qin and Goh Mei Ling Evelyn, gave evidence at the trial, confirming the contents of the two certificates.

(b)     The section 22 CPC long statement recorded from the accused by Investigating Officer, Angie Poh, wherein the accused admitted to the taking of the drugs.[note: 8] The Investigating Officer, Angie Poh, gave evidence at the trial, that the accused gave his long statement voluntarily and that he understood English.

10     The accused was self-represented at the trial. The accused raised:

(a)     The defence of medication, asserting that the medication that he was taking may have given rise to the positive test results in his urine samples.[note: 9] The accused was under medication for his chronic liver disease and was dispensed with fentanyl, midazolam, oral simeticone and xylocaine throat spray.[note: 10] Colonic lavage with polyethylene glycol was also given to the accused.[note: 11]

(b)     Allegations disputing:

(i)       his section 23 CPC cautioned statements, and

(ii)       his section 22 CPC long statement.

11     In relation to the accused’s section 22 CPC long statement, the accused objected to the admission of the statement on the basis that the statement was in English, he could not understand English, and the statement was not interpreted to him. An ancillary hearing was held to determine whether the statement should be admitted.

12     At the end of the ancillary hearing, I found that the prosecution had proven beyond reasonable doubt that the accused had made the long statement voluntarily, and that the accused had sufficient understanding of the English language for the statement to be admitted. Accordingly, the long statement was admitted into the evidence. However, at that stage, I reserved my decision on the weight to be accorded to the statement including the accuracy of the statement and the extent to which the accused understood the statement.[note: 12]

Conviction

13     As the accused has only appealed against sentence and not conviction, I will just deal briefly with the grounds for conviction, which are substantially the brief grounds that I gave at the hearing.

14     In view of the two certificates admitted into evidence, under section 22 of the Misuse of Drugs Act, the accused is presumed to have consumed the drugs. Other than a bare assertion that the medication he took may have affected the urine test results, no evidence was adduced by the accused to rebut the presumption.

15     The evidence of the two HSA analysts, Ng Xue Qin[note: 13] and Goh Mei Ling Evelyn,[note: 14] was that the medications given to the accused, would not give rise to the drugs in his urine. The accused did not adduce any evidence to support his assertion that the medications would cause a positive drug result.

16     Furthermore, the evidence of the accused’s doctor for his chronic liver disease,[note: 15] Dr Tan Chin Kimg, when cross-examined by the accused on the polyethylene glycol that was given to the accused, was that this would not affect the urine test.[note: 16] The accused did not dispute the evidence of Dr Tan.

17     In the premises, in the light of the presumption under section 22 of the Misuse of Drugs Act which has not been rebutted by the accused, the prosecution has proven its case beyond a reasonable doubt. In the circumstances, it is unnecessary for me to deal with the section 22 CPC long statement relied upon by the prosecution and disputed by the accused.

18     Nevertheless, I found that the accused’s allegation that he could not understand English and that his long statement was fabricated by the Investigating Officer was incredible. My reasons are as follows:

(a)     The long statement, in particular the accused’s admission that his urine tested positive for the drugs was because he could have consumed the drugs before his arrest,[note: 17] was consistent with the accused’s case for defence, where he stated that he did not dispute the charges against him,[note: 18] and sought to be placed in the Drug Rehabilitation Centre (“DRC”) regime, on the basis that he was merely a drug consumer, without other criminal offences.[note: 19]

(b)     The accused’s explanation that he did not understand the case for defence on which he had placed his thumbprint, as it was written for him in English by a Dutch person,[note: 20] is not credible, as his case for defence was served on 28 January 2022,[note: 21] well after he had given his long statement on 23 April 2021.[note: 22] The accused would have had ample time to consider his position, particularly his allegation that he does not understand English, and it is incredible that he would again endorse a document in English, months after his long statement that was in English if he did not understand English. Furthermore, the accused did not call the alleged Dutch person to give evidence in support of his allegation.

19     Accordingly, I found the accused guilty and convicted him of the two charges against him.

20     Thereafter, the accused agreed to a further drug consumption charge to be taken into consideration for sentencing.

Prosecution’s submissions on sentence

21     The prosecution submitted for an imprisonment term of nine years for each charge, with the sentence for both charges to run concurrently.

22     The prosecution relied largely on the accused being a repeat LT2 offender, with his last sentence in 2012 for LT2, being eight years’ imprisonment.[note: 23]

23     The prosecution further relied on:

(a)     The accused’s pattern of re-offending within two years from his release from prison, and pointed out that after the accused’s release from prison in July 2017 for his last offence, the accused re-offended less than two years later in April 2019.[note: 24]

(b)     The accused repeated the offences while on bail for the April 2019 offence.[note: 25]

(c)     The accused did not report for bail and an arrest warrant was issued against him.[note: 26]

(d)     The accused displayed a complete lack of remorse during the trial, blaming the Investigating Officer for lying and conspiring to frame him.[note: 27]

24     In seeking a one year uplift from the previous LT2 sentence of the accused, the prosecution relied on the High Court decision of Yusran bin Yusoff v Public Prosecutor [2014] SGHC 74, where a one year uplift was imposed from the previous LT2 sentence.[note: 28] As the accused was above 50 years old, he could not be sentenced to caning, but the prosecution did not seek a longer prison term in lieu of caning.

Mitigation plea

25     The defence submitted for a term of imprisonment of eight years and six months for each charge, with the sentence for both charges to run concurrently. Defence counsel who argued the mitigation, was only instructed by the accused after his conviction.

26     In the written mitigation plea that was filed for the accused, defence counsel initially sought the minimum sentence of seven years’ imprisonment, as she was under the mistaken impression that this was the accused’s first LT2 offence.[note: 29] At the sentencing hearing, defence counsel conceded that this impression was incorrect, and accepted that this was the accused’s second LT2 offence.[note: 30] With that in mind, defence counsel then sought a sentence of eight years and six months’ imprisonment.[note: 31]

27     Defence counsel further submitted in mitigation that:

(a)     the accused is 63 years old and will be released close to the age of 70 with no family ties and no financial support,[note: 32]

(b)     the accused was taking care of his mother before he was in remand,[note: 33]

(c)     the mother of the accused may not be around by the time he is released from prison,[note: 34]

(d)     there be no additional sentence in lieu of caning,[note: 35]

(e)     the accused deeply regrets his action of consuming drugs and is apologetic for wasting the court’s time in claiming trial,[note: 36] and

(f)     the accused is trying to reform and stay drug free.[note: 37]

Court’s decision on sentence

28     I sentenced the accused to a term of imprisonment of nine years for each charge, with the sentence for both charges to run concurrently.

29     A deterrent sentence which sends a strong message to the accused against his persistent drug offending, is called for in this case, in view of:

(a)     the multiple antecedents of the accused, including a previous LT2 conviction where the accused was sentenced to eight years’ imprisonment,

(b)     his failure to report while on bail,

(c)     the commission of the offences while the accused was on bail, and

(d)     the consumption charge which the accused agreed to be taken into consideration.

30     The matters raised by the accused in mitigation carry little weight in sentencing.

31     The principal matter relates to the age of the accused who was 63 years old at the time of sentencing. The advanced age of the offender is a relevant factor, if the sentence is a long term of imprisonment. The court should not impose a sentence that effectively amounts to life imprisonment. In Public Prosecutor v UI [2008] 4 SLR (R) 500 at [78], it was held:

… in general, the mature age of the offender does not warrant a moderation of the punishment to be meted out … But, where the sentence is a long term of imprisonment, the offender’s age is a relevant factor as, … the court should not impose a sentence that effectively amounts to a life sentence … that would be regarded as crushing and would breach the totality principle of sentencing.

32     In the present case, the defence has submitted that the accused will be close to 70, by the time he is released from prison. I am of the view that at that age, there is a reasonable prospect that the remaining years of the accused’s life would still be significant, compared to the time that he would have spent in prison for the current offences. In that context, a sentence of nine years’ imprisonment cannot be described as effectively amounting to a life sentence.

33     Furthermore, whether an accused of advanced age is a first offender or has a past criminal record is also relevant in determining whether the sentence is disproportionate and crushing. In Public Prosecutor v Yap Ah Lai [2014] 3 SLR 180, it was held:

(a)     “The key consideration is to assess the impact of such a sentence on the offender having regard to his past record and his future life expectation and consider whether this would be disproportionate and crushing because of the offender’s particular circumstances” (at [88]), and

(b)     “In relation to the offender’s past record, advanced age may be relevant in the sense that where a person of mature age commits a first offence some credit might be given for the fact that he has passed most of his life with a clean record and the prospects for rehabilitation may also be taken to be better” (at [89]).

34     In the present case, the accused was not a first offender. In view of the multiple antecedents of the accused including his previous LT2 conviction, the sentence of nine years’ imprisonment sought by the prosecution is not disproportionate and crushing.

35     Furthermore, the sentence of nine years’ imprisonment is:

(a)     Just six months more or about 6% higher than defence counsel’s proposed sentence of eight years and six months’ imprisonment.  That relatively small difference does not tip the sentence proposed by defence counsel into one that is disproportionate and crushing.

(b)     Is within the bottom one-third of the sentencing range for a LT2 charge, from a mandatory minimum of seven years to a maximum of 13 years’ imprisonment. This could hardly be said to be disproportionate or excessive, when I weighed the previous LT2 conviction of the accused, the current convictions for two LT2 charges, and a third LT2 charge to be taken into consideration.

36     Moreover, an uplift of one year from the previous LT2 sentence imposed on the accused is consistent with the precedent of Yusran bin Yusoff v Public Prosecutor [2014] SGHC 74 cited by the prosecution.[note: 38] In that case, the appellate judge (at [7]) affirmed the sentence imposed by the trial judge in Public Prosecutor v Yusran bin Yusoff [2013] SGDC 396 at [33]-[35], where there was a one year uplift from the previous LT2 sentence. There are no mitigating factors in this case that would justify a departure from the one year uplift given in that case.

37     Taking into consideration deterrence and the principle of escalation, the accused was sentenced to nine years’ imprisonment for each of the two charges on which he was convicted.  The terms of imprisonment are to run concurrently. There was no uplift of sentence in lieu of caning.

Conclusion

38     In conclusion, I sentenced the accused to nine years’ imprisonment. The term of imprisonment is with effect from the arrest of the accused on 22 March 2021.

[note: 1]P3 and P4.

[note: 2]P6.

[note: 3]Transcript (25 July 2023) at page 26, line 23.

[note: 4]Transcript (25 July 2023) at page 29, lines 21-32.

[note: 5]Transcript (26 July 2023) at page 5, lines 19-24.

[note: 6]Transcript (25 April 2024) at pages 1 to 3.

[note: 7]P3 and P4.

[note: 8]P6.

[note: 9]Transcript (29 April 2024) at page 4, lines 19-29.

[note: 10]P7, P9 and DA4 at [4(a)].

[note: 11]DA4 at [4(b)].

[note: 12]Transcript (25 April 2024) at page 8, lines 6-14.

[note: 13]Transcript (17 April 2024) at pages 9-11 and Transcript (26 April 2024) at page 12.

[note: 14]Transcript (18 April 2024) at pages 5-6 and Transcript (26 April 2024) at pages 14-15.

[note: 15]Transcript (26 April 2024) at page 19, line 22.

[note: 16]Transcript (26 April 2024) at page 23, lines 8-13.

[note: 17]P6 at [17], [18].

[note: 18]PA1 at [2].

[note: 19]PA1 at [10].

[note: 20]Transcript (29 April 2024) at page 9, lines 27-29.

[note: 21]PA1

[note: 22]P6.

[note: 23]Prosecution’s sentencing submissions at [4].

[note: 24]Prosecution’s sentencing submissions at [7(a)].

[note: 25]Prosecution’s sentencing submissions at [7(b)].

[note: 26]Prosecution’s sentencing submissions at [7(c)].

[note: 27]Prosecution’s sentencing submissions at [7(d)].

[note: 28]Prosecution’s sentencing submissions at [8(b)].

[note: 29]Mitigation plea at [5].

[note: 30]Transcript (28 August 2024) at page 3, lines 29-30.

[note: 31]Transcript (28 August 2024) at page 7, lines 23-30, page 8, lines 20-21.

[note: 32]Transcript (28 August 2024) at page 8, lines 25-26.

[note: 33]Transcript (28 August 2024) at page 8, lines 2-4.

[note: 34]Transcript (28 August 2024) at page 8, lines 5-6.

[note: 35]Transcript (28 August 2024) at page 8, lines 17-19.

[note: 36]Transcript (28 August 2024) at page 8, lines 8-13.

[note: 37]Transcript (28 August 2024) at page 8, line 30.

[note: 38]Prosecution’s sentencing submission at [8(b)].

"},{"tags":["Civil Procedure – Trial – Bifurcation of Proceedings"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit Nos. 1448 of 2021 and 1490 of 2021","title":"Nguyen Thuy Ha v Tran Thi Bich Ha and another matter","citation":"[2024] SGDC 251","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32309-SSP.xml","counsel":["Mr Clarence Lun Yaodong (Fervent Chambers LLC) for the plaintiff","Mr Mark Tang Yu Zhong (Rajah & Tann Singapore LLP) for the defendant."],"timestamp":"2024-10-19T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Nguyen Thuy Ha v Tran Thi Bich Ha and another matter

Nguyen Thuy Ha v Tran Thi Bich Ha and another matter
[2024] SGDC 251

Case Number:District Court Suit Nos. 1448 of 2021 and 1490 of 2021
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Shen Wanqin
Counsel Name(s): Mr Clarence Lun Yaodong (Fervent Chambers LLC) for the plaintiff; Mr Mark Tang Yu Zhong (Rajah & Tann Singapore LLP) for the defendant.
Parties: Nguyen Thuy Ha — Tran Thi Bich Ha — Jarta (S) Pte. Ltd. — Nguyen Thi Thu Trang

Civil Procedure – Trial – Bifurcation of Proceedings

23 September 2024

Judgment reserved.

Deputy Registrar Shen Wanqin:

1       This is an uncomplicated case featuring members of the Vietnamese community and former business partners who have since turned against one another, over several Facebook posts made by the defendant (“the Posts”). The Posts triggered two defamation suits, DC/DC 1448/2021 (“DC 1448”) and DC/DC 1490/2021. In these suits, the plaintiffs’ case is that the Posts are defamatory in nature, as they convey the meaning that Ms Nguyen Thuy Ha (“Angie”), the plaintiff in DC 1448, had engaged in sexual intercourse to procure business for the plaintiffs in both suits. The defendant’s case is that the gist of the Posts is true.

2       Even though the suits were filed in July 2021, there is still no end in sight. In the last three years, the parties made various applications which formed the subject of several written decisions, including Nguyen Thu Ha v Tran Thi Bich Ha and another matter [2022] SGDC 96, which contains a comprehensive summary of the material facts. In this latest episode, the defendant applied for the proceedings to be bifurcated between issues of liability, and issues of the defence of justification and of damages (“the Bifurcation Applications”). The plaintiffs oppose the Bifurcation Applications on the basis that the issues are linked.

3       Having carefully considered the matter, I find that the defendant has failed to discharge her burden of showing that the proposed bifurcation of the proceedings is just and convenient in the effective and efficient disposal of the matter. The proposed bifurcation will in fact add to the time and costs required to conclude an otherwise uncomplicated matter. I therefore dismiss the Bifurcation Applications and set out the reasons for my decision in this judgment.

Issue 1: Whether the court can bifurcate between issues of liability and defence

4       The plaintiffs argued that the Bifurcation Applications are not “true applications” for bifurcation, as proceedings are usually bifurcated between liability and damages, and a bifurcation between liability and defence is “most unusual” and unprecedented. On the other hand, the defendant submitted that the plaintiffs’ argument is untenable, as there is nothing in the language of Order 33, Rule 2 of the Rules of Court 2014 (“ROC 2014”) that prohibits a bifurcation on that basis. The preliminary issue is therefore whether the court can, as a matter of principle, order that the trial be bifurcated between issues of liability and issues of defence.

5       Order 33, Rule 2 of the ROC 2014 provides for the court’s power to order bifurcation. There is nothing in the text of Order 33, or in principle or policy, that prohibits a bifurcation between issues of liability and issues of defence (Crapper Ian Anthony v Salmizan bin Abdullah [2024] 1 SLR 768 (“Salmizan”) at [57]–[58]). Bifurcation is a case management tool which is used to achieve expeditious proceedings, cost-effectiveness and the efficient use of court resources (Salmizan at [57]). It follows that the court is at liberty to use this tool in any way it deems fit, so long as it is just and convenient in the effective and efficient disposal of the matter (Salmizan at [57]). This position is also supported by the precedents, which show that proceedings have not always been bifurcated between liability and damages (see Salmizan at [58]).

6       Accordingly, I accept the defendant’s submission that the Bifurcation Applications can, in principle, be granted, and that a bifurcation of the proceedings in the manner sought, if granted, is neither unusual nor unprecedented.

Issue 2: Whether the court should bifurcate between issues of liability and defence

7       I then turn to the next issue as to whether the present proceedings should be bifurcated between issues of liability and issues of the defence of justification (“defence”) and of damages. On this issue, the plaintiffs rightly pointed out that the normal practice is for a unified trial on all issues (Dai Yi Ting v Chuang Fu Yuan (Grabcycle (SG) Pte Ltd and another, third parties) [2022] 3 SLR 1574 (“Dai”) at [10]). The burden falls on the defendant, the party who filed the Bifurcation Applications, to show that it is just and convenient to order a bifurcation in the suits (Dai at [10] and [20] and Salmizan at [57]). For the reasons below, I find that the defendant has not discharged this burden.

8       The crux of the matter is whether a bifurcation between liability and defence should be ordered. The answer depends very much on the facts and circumstances of the case (Salmizan at [59]). These include (a) the degree of demarcation between the issues of liability and of the defence; (b) the complexity of the issues; and (c) the effect of bifurcation on the opposing party (Dai at [29]–[37]). These factors are non-exhaustive. Ultimately, the court must keep the bigger picture in mind and make a decision that yields a fair and practical result (Dai at [28]).

Complexity of the issues

9       The defendant accepts that the issues of liability are simple issues. However, her position is that the issues of defence and of damages are “relatively complex”, will “take up substantial time and costs” and will require “far more effort”. According to the defendant, this is because the list of such issues, the number of witnesses required, and the evidence to be given by the witnesses on the defence are “quite extensive”. In making these arguments, the defendant failed to appreciate that the assessment on the complexity of the issues does not merely involve a technical aggregation of the number of issues and witnesses or the evidence to be given. Instead, it requires an in-depth understanding of the dynamic nature of the trial process, and involves a holistic and qualitative analysis of all relevant factors, with a specific focus on the nature of issues involved. On a proper assessment, I find that the issues of defence and of damages cannot be characterised as complex issues for the following reasons.

10     First, the case involves only a modest number of simple factual issues that can easily be addressed by leading evidence from the witnesses. The plaintiffs’ case is that the Posts refer to the plaintiffs, carry a false and defamatory meaning, and were published by the defendant to third parties (see Golden Season Pte Ltd and others v Kairos Singapore Holdings Pte Ltd and another [2015] 2 SLR 751 at [35] for the elements of a defamation claim). The defendant disputes liability and raises the defence of justification by arguing that the gist of the Posts is true. Notably, the plaintiffs pleaded only one meaning for the Posts (see [1] above), and this is essentially the same meaning pleaded in the defence that the defendant seeks to justify.

11     Hence, based on the parties’ cases, the main issue pertaining to the defence is whether the Posts are true in substance (ANB v ANF [2011] 2 SLR 1 at [70]). As for damages, the issue is, as the plaintiffs rightly pointed out, ordinarily addressed by way of submissions based on the court’s findings of liability and the evidence (see, for example, Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [90]–[100]); see also the High Court’s observations in Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another [2016] 4 SLR 977 at [167]). The defendant has not shown any basis for a different approach. On this analysis, the issues of defence and of damages are clearly not so complex or extensive as to require special and separate consideration in a second stage of the proceedings.

12     Even though the defendant’s list of defence-related “issues” appears to be more extensive as compared to the liability issues (see Annex 1), this is because the defendant generated a list of defence-related questions that appear to be nothing more than questions that counsel may ask during examination-in-chief. In contrast, no such questions were generated in relation to liability. It is therefore unsurprising to see that the number of defence-related questions has surpassed the number of liability issues. However, as a matter of principle, the assessment on complexity cannot involve a perfunctory comparison of the numbers or be dependent on the number of questions a counsel can generate in relation to the issue at hand. Otherwise, any counsel can seek to characterise any issue as a complex issue, by generating more questions on that issue. By way of analogy, a counsel may ask many questions, in different permutations, about the colour of the sky, but the extent of such questions do not detract from the fact that the issue as to whether the sky is blue is a simple one that can easily be resolved. Put another way, the defendant’s questions do not make a simple factual issue complex.

13     The court must perform a more nuanced analysis and look beyond the number of questions to assess the nature of issues involved, to determine whether a case is truly complex. On this point, the defendant concedes that the broad issue pertaining to her defence is simply whether Angie had engaged in sexual intercourse with Hai for the purpose of procuring business for the plaintiffs. This is not a complicated issue (see [10] above). The defendant has not given any convincing explanation as to how the issue can possibly be construed as being complex in nature, or as being more complex as compared to the issues of liability. Further, the defendant accepts that the defence-related “issues” enumerated in her list (see the table under the sub-header “B. Justification”, and the header “III. Non-Agreed List of Issues”, in Annex 1) are “just [questions relating to] disputed facts and disputed significance of facts”. As such, I am not persuaded by the defendant’s argument regarding the alleged complexity of the issues.

14     Second, it is not possible to conclude, based on the number of witnesses required and the extent of evidence they are expected to give, that the issue pertaining to the defence is more complex. To begin with, the number of witnesses or the extent of evidence involved has no direct bearing on the complexity of the issues. The number of witnesses and the extent of evidence they give at trial can be influenced by a range of subjective considerations, including each party’s trial strategy, the role of each witness, or even individual preferences. For instance, even if an issue, such as whether the sky is blue, is not complex, plaintiffs who take a more cautious approach may elect to call a few witnesses to prove that the sky is blue, whereas others may simply call one witness to prove the same point. In either situation, the extent of evidence given by the witnesses does not change the nature of the issue – it remains a simple issue. Therefore, the number of witnesses and the extent of evidence they give, without more, are generally not conclusive of the complexity of the issues involved.

15     In any event, this case involves only four key witnesses – Angie, Nguyen Thi Thu Trang, Nguyen Hai (“Hai”) and the defendant. As for the remaining six witnesses, three will be testifying for the plaintiff, while the remaining three will be testifying for the defendant. Amongst the spectrum of cases that are heard before the courts, such numbers are not considered so large as to render the issues complex, or to warrant a bifurcation of the proceedings. If even a case like this which involves only a modest number of witnesses is treated as a case involving complex issues, it may no longer be meaningful to draw any distinction between complex and non-complex issues.

16     Based on the above analysis, I find that there is nothing complicated about the issues that warrants a split of the proceedings.

Degree of demarcation between issues of liability and defence

17     Apart from the lack of complexity, I find that a bifurcation of the proceedings is not appropriate as the issues of liability and defence are inextricably linked. The defendant concedes that these issues are linked, because there is an overlap in the evidence that is relevant to these issues, particularly in relation to the events of 10 March 2021 when Hai met with several employees from Transviet Travel Group. However, the defendant argues that the overlap is a “slight” one that is purportedly “present in all bifurcation applications”. Having considered the argument in the context of this case (Salmizan at [59]), I find that the overlap in the issues cannot be characterised as a slight one, and, in any event, there is no basis for saying that such overlap is present in all bifurcation applications.

18     In this case, the plaintiffs, in their case on liability, take the position that the Posts bear a false and defamatory meaning, while the defendant, in her defence, takes the position that the Posts are true. Given the parties’ positions and the way they have chosen to run their case, the evidence which the plaintiffs adduce at the liability stage will inevitably be directly relevant to the defence. Further, looking at the nature of the issues involved, one of the key issues that is common to both liability and defence is whether the Posts are false or true. As such, the issues of liability and defence overlap to a significant degree and bifurcation should not be ordered (Dai at [30]).

Effect of bifurcation on party opposing bifurcation

19     The defendant argues that a bifurcation will bring about costs and time savings because if she succeeds on the liability issues, she will not be required to call three additional witnesses to testify on the defence at trial, or prepare the affidavits of evidence-in-chief for these witnesses at the pre-trial stage. According to the defendant, even if she fails at the liability stage, a bifurcation will “still allow parties to control the type of questions that are asked at the first stage”, allow the court to “determine the defamatory meaning”, “direct the defendant to focus on the defence of justification”, and “sharpen the justification issue”. These arguments fail to adequately consider the time and costs inefficiencies arising from the proposed bifurcation, as well as the substantial injustice which the plaintiffs will suffer because of the proposed bifurcation.

20     First, if the plaintiff succeeds at the liability stage, the practical effect of bifurcation is that all seven of the plaintiff’s witnesses as well as the defendant will be required to testify twice – first at trial on liability issues and then again at the trial for the defence and damages issues, when these issues are inextricably linked. It is also significant that the defendant intends to object to evidence pertaining to the defence being given at the liability stage, should the proceedings be bifurcated, even though she acknowledges that there is some overlap in the issues of liability and defence. This will then lead to time being expended on objections and arguments on objections. This approach therefore wholly defeats the objective of time and costs saving.

21     Even in a situation where the defendant succeeds at the liability stage, the defendant’s argument on the time and costs savings arising from a bifurcation is overstated. The bulk of the evidence is expected to be given by four key witnesses, i.e., Angie, Nguyen Thi Thu Trang, Hai and the defendant, who play major roles and are directly privy to the incidents in question. In comparison, the scope of evidence to be given by the remaining witnesses is likely to be more limited, as they were not directly involved in the key incidents. Therefore, the defendant’s time and costs savings arising from the dispensation of three non-material witnesses are likely to be minimal at best. Similarly, the plaintiffs will not gain any significant time and costs savings, as all their witnesses will already have testified at the liability stage.

22     Second, a bifurcation of the proceedings unnecessarily distorts the evidence by compelling the parties to draw arbitrary lines between evidence pertaining to liability and those pertaining to the defence, when it is not possible for the evidence to be so finely tuned in a trial context, especially in the context of this case where the issues of liability and defence are inextricably linked. At trial, lay witnesses give evidence in a narrative based on events and incidents, and it is entirely conceivable that their evidence given in this form will concurrently shed light on the defamatory meaning and falsity of the Posts (i.e., be relevant to both the liability and defence issues).

23     A bifurcation will lead to the evidence being given in bits and pieces, with the witnesses having to arbitrarily confine their evidence to those that are relevant to liability only, when the entirety of the witness’s account, including those perceived to be irrelevant to liability, is required for the court to properly comprehend the truth of the matter, including the meaning of the Posts. As a result, the court is unable to perceive the evidence holistically and is instead burdened with the difficult task of piecing together the scraps for answers. It is not in the interest of justice for evidence to be given in such a contrived manner, and in a way that impedes an informed decision on the issues and the search for the truth.

24     Third, a bifurcation will deprive the plaintiffs the opportunity of running their best case. It is evident from the Statement of Claim that the falsity of the Posts is integral to the plaintiffs’ case on liability. If the proceedings are bifurcated, the plaintiffs will be compelled to abandon a crucial aspect of their case at the liability stage, as the defendant takes the position that the issue relating to the falsity or truth of the Posts is relevant to the defence and can only be addressed at the second stage. In such a situation, the prejudice imposed on the plaintiffs is not insubstantial, as the plaintiffs will be left with no real recourse or alternatives, except to run what they deem to be an inferior case. The prejudice to the plaintiffs is a valid and important consideration militating against an order of bifurcation (Dai at [37]).

25     It is evident from the above analysis that the defendant has erred in not considering the matter adequately from the plaintiffs’ perspective, with the trial process in mind. Based on the arguments and facts presented, I see no reason to make an order of bifurcation in this case. In arriving at my decision, I find that the concerns set out in the cases cited by the plaintiffs’ counsel, concerning Order 14, Rule 12 of ROC 2014, are not applicable here. This is because the concerns were articulated in the specific context of applications made under Order 14, Rule 12, which involves a different legal mechanism whereby a Court can make a preliminary determination on the meaning of the words on a summary basis. The principles articulated need to be understood in that context. Similarly, while the defendant’s counsel has helpfully cited several foreign authorities to assist the court, these cases show, at best, that a bifurcation based on the issues involved is precedented. The cases advanced by the parties, the nature of the claims and issues involved, and the context for the claims in those cases are substantively different from the present case. As such, it is not possible for the court to draw any analogy from those cases. Hence, I consider the facts and circumstances before me to be of paramount importance in determining whether the Bifurcation Applications should be allowed.

Conclusion

26     Based on the facts and circumstances before me, I find that the defendant has not discharged her burden of showing why the proposed bifurcation is just and convenient in the efficient and effective disposal of the matter. I therefore dismiss the Bifurcation Applications with costs to be paid by the defendant. The purpose of bifurcation is not only to achieve efficiency in the disposal of the matter, but also to ensure that the matter is dealt with effectively in the interests of all parties (Dai at [27] and [56]). In assessing the merits of any bifurcation application, parties must take care not to adopt an overly narrow or technical approach, by focusing on the numbers or the dollars and cents involved from one party’s perspective. Instead, parties should apply a pragmatic, commonsensical and holistic approach, by assessing the facts and the practical impact of bifurcation from both parties’ perspective, and with the trial process in mind.

________________________________

Annex 1: Lists of Witnesses and Lists of Agreed and Disputed Issues

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"},{"tags":["Criminal Law – Offences – Property – Cheating","Criminal Law – Offences – Property – Criminal breach of trust","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-10-11","court":"District Court","case-number":"District Arrest Case No 906413 of 2024 & 3 Others","title":"Public Prosecutor v Tan Boon Hiang","citation":"[2024] SGDC 269","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32320-SSP.xml","counsel":["Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor","Tan Shi Ying, Victoria (Public Defender's Office) for the Accused."],"timestamp":"2024-10-18T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Tan Boon Hiang

Public Prosecutor v Tan Boon Hiang
[2024] SGDC 269

Case Number:District Arrest Case No 906413 of 2024 & 3 Others
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Ariel Tan (Attorney-General's Chambers) for the Public Prosecutor; Tan Shi Ying, Victoria (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Tan Boon Hiang

Criminal Law – Offences – Property – Cheating

Criminal Law – Offences – Property – Criminal breach of trust

Criminal Procedure and Sentencing – Sentencing – Principles

11 October 2024

District Judge Paul Quan:

Introduction

1       This is a case involving cheating and criminal breach of trust in the consignment of diamonds. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Mr Tan Boon Hiang (“Mr Tan”), a 64-year-old Singaporean, incorporated a sole proprietorship ST Jewels and entered into a consignment business involving diamonds with S M Jewels Pte Ltd (“S M Jewels”). He falsely misrepresented to S M Jewels through its director, Shah Hitesh Kirshorkumar (“Mr Hitesh”), whom he had solicited, and deceived S M Jewels into believing that ST Jewels had potential diamond buyers when there were none, thereby dishonestly inducing S M Jewels to enter into three consignment agreements and to deliver five diamonds valued at S$59,328 to him. He later pawned the diamonds for $28,850. He perpetrated the same ruse against two other entities which parted with two diamonds valued at S$20,415.60.

3       Separately, Mr Tan also entered into another consignment arrangement with Amdia Pte Ltd (“Amdia”), whose director Mr Tan had known for six to seven years. Consequently, 11 pieces of jewellery belonging to Amdia valued at S$55,800 were consigned and entrusted to him. When he could not find any buyers for the jewellery, he pawned them for S$6,720 and misappropriated the monies.

Charges

4       Mr Tan has pleaded guilty to two charges, one of cheating S M Jewels under section 420 of the Penal Code 1871 (2020 Rev Ed) (“PC”) and another of criminal breach of trust (“CBT”) against Amdia under section 406 of the PC. He has also consented to have another two similar charges under section 420 of the PC taken into consideration for the purpose of sentence (“TIC”) for cheating the other two entities.

Prescribed punishment

5       For the cheating charge, Mr Tan must be imprisoned for up to ten years that can be coupled with a fine. He is also subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because three separate occasions of cheating have been taken together to amount to a course of conduct and amalgamated as a single charge under section 124(4) of the CPC. As for the CBT charge, Mr Tan must be imprisoned for up to seven years and/or fined.

Parties’ positions

6       Mr Tan has unrelated traffic antecedents.

7       The parties’ positions are not far apart. The prosecution has sought to impose a global sentence of 19 months’ two weeks’ to 21 months’ two weeks’ imprisonment on him based on:

(a)     the total quantum of S$135,543.60 involved across the four charges, of which S$115,128 pertained to the two charges proceeded with against Mr Tan;

(b)     premeditation involved in respect of the cheating charge and the extent of the breach of trust in respect of the CBT charge;

(c)     personal gain as the motivation for committing the offences;

(d)     the aggravating presence of the TIC charges; and

(e)     no restitution being made.

8       The defence has sought a global sentence of 17½ to 18½ months’ imprisonment for Mr Tan instead based on:

(a)     the economic value involved and Mr Tan’s moderate culpability in the cheating offence;

(b)     the fair sentencing position of the prosecution on the CBT charge that is in line with precedent;

(c)     no similar antecedents for dishonesty though recognising that Mr Tan had committed multiple offences; and

(d)     Mr Tan’s early indication of guilty plea evidencing genuine remorseful that is consistent with the voluntary confession he had made to Mr Hitesh and Mr Shenoy.

Court’s decision

9       I sentence Mr Tan to an aggregate imprisonment term of 21 months. I set out the reasons for my decision.

Issues to be decided

10     There are three main issues I have to decide in this case.

Harm-culpability assessment; personal aggravating and mitigating factors; application of case authorities for sentencing

11     They are:

(a)     first, ascertaining the level of harm caused by the offences and Mr Tan’s culpability in the offences;

(b)     second, according the aggravating and mitigatory weight to the factors personal to Mr Tan that present themselves in this case; and

(c)     third, the appropriate individual sentences to be meted out and how they ought to be run.

12     I resolve the issues in this way:

(a)     in relation to the harm-culpability assessment –

(i)       the economic value involved in the offences is not insubstantial and the harm caused is therefore pegged at (the higher end of) low to moderate,

(ii)       Mr Tan’s level of culpability is correctly pegged by the defence at moderate, given that there was planning and premeditation involved, the period of the cheating offence, the extent of the breach of trust for the CBT offence, as well as personal gain motivating the commission of the offences to pay his debts and family expenses;

(b)     in relation to personal aggravating factors, although Mr Tan’s past record does not entail any property-related antecedents, he has committed a slew of such offences in the present case, with the aggravating presence of similar TIC charges;

(c)     as for countervailing mitigating factors, Mr Tan’s early indication of guilty plea is decidedly in his favour and this genuine show of remorse is consistent with his contemporaneous and voluntary confession of criminal wrongdoing to Mr Hitesh and Mr Shenoy; and

(d)     apart from the case authorities that the parties have cited, the precedents suggest that for cheating offences involving similar amounts and level of culpability, the sentences generally range from 12 to 15 months’ imprisonment; it is six to nine months’ imprisonment for CBT offences.

Analysis of issues for cheating charge

13     I analyse the issues in turn, first in respect of the cheating charge.

Issue 1(a): Harm caused by offence is low to moderate

14     The value of the property cheated is a convenient starting point for sentencing because there is often a close relationship between this and the extent of the victim’s detriment caused by the cheating and the extent of the offender’s criminal benefits: PP v Lim Beng Kim, Lulu [2023] SGDC 9 (“Lulu Lim”) at [22] and [23]. I assess the harm caused by the offence to be (on the higher end of) low to moderate. In this case:

(a)     the value of the diamonds cheated is S$59,328;

(b)     S M Jewel’s actual loss was $28,850. This was the amount that Mr Hitesh eventually had to pay the pawnshop to redeem the diamonds;

(c)     the actual benefit that Mr Tan had gained was S$28,850. This was the amount that he had received from pawning the diamonds that he spent; and

(d)     the losses fell where they were because no restitution was made.

15     While there is a proportionate relationship between the victim’s pecuniary loss as well as the offender’s pecuniary benefit on the one hand, and the severity of the sentence on the other, the relationship is not linear because there are other relevant sentencing considerations such as offender culpability and offender-specific factors that have to be evaluated and weighed: Lulu Lim at [29].

Issue 1(b): Mr Tan’s culpability is moderate

16     I assess Mr Tan’s culpability to be moderate.

17     First, the level of planning and premeditation was high, such that Mr Hitesh was systematically and methodically lured by Mr Tan to enter into the consignment agreements:

(a)     Mr Tan first sought Mr Hitesh out about two diamonds on the pretext that he had a customer to show them to in order to secure a sale, which led to the first consignment agreement;

(b)     By returning the first diamond and then telling Mr Hitesh that he had a buyer for the second gave veiled his account with legitimacy when he knew that there was no such buyer;

(c)     A couple of weeks later, Mr Tan enquired about having Mr Hitesh consign more diamonds to him. He maintained the deception that there was a buyer who was still considering purchasing the second diamond. He then issued three postdated cheques to induce Mr Hitesh to enter into a second consignment agreement for three more diamonds;

(d)     He pawned all three diamonds on the same day. A few days later, he also pawned the second diamond and despite doing so, he enquired with Mr Hitesh about yet another diamond that he claimed a customer was interested in buying when he knew that there was no such buyer. Mr Hitesh again consigned this diamond to him which he pawned the same day.

18     Second, Mr Tan was motivated by personal gain to commit the offences. He showed no compunction at all when he pawned the diamonds the very same day that they were consigned to him to clear his debts and pay for his family’s expenses. Third, Mr Tan perpetrated the offences over an extended period of time spanning nearly six weeks.

Issue 2: Offender-specific aggravating and mitigating factors

19     As for personal aggravating factors, even though he does not have property-related antecedents in his past records, he has committed multiple property-related offences that militates against any suggestion that this is his first brush with such a genre of criminal conduct. He should therefore not be regarded as a first offender on that basis, even if he has no prior convictions or dissimilar antecedents: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17].

20     There is also the aggravating presence of similar TIC charges. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37]. Other than S M Jewels, Mr Tan also perpetrated similar cheating offences against two other separate entities and the economic value involved in these offences are also quantitatively significant in excess of S$20,000.

21     Decidedly in Mr Tan’s favour is his early indication of guilty plea. Whether this evinces genuine contrition and remorse is a question of fact. In this regard, I have expressed in PP v Andy Oie Zheng Jie [2024] SGDC 238 (“Andy Oie”) at [32] that:

Expressions of regret and remorse after the offender has been caught are easy to profess and difficult to prove: PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 at [26]. This is no more or less difficult than other findings of fact that a trial or sentencing judge has to grapple with: Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [74], and the contemporaneity of documents, evidence, behaviour and conduct at the material time in question has been used as a reliable fact-finding yardstick.

In this case, there was such contemporaneous display of guilt, remorse and contrition at the time of the offence and this was persuasive. Mr Tan did not merely provide a written confession; he mailed the consignment invoices and the tickets issued by the pawnshop to Mr Hitesh.

Issue 3: Application of case authorities for sentencing

22     The parties have submitted relevant case authorities to support their respective positions on sentence. I sound the same caution as I did in Andy Oie at [37]-[38] about adopting too granular an exercise in this regard and over-emphasising linear quantitative proportionality over the qualitative criminality of the accused:

Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: Lulu Lim at [29].

It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Mr Tan’s overall qualitative criminality as determined by his culpability, in particular my discussion at [17], above, “changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases”: Andy Oie at [40].

23     Having said that, the sentences that the parties have proposed are broadly consistent with the sentences imposed for previous plead guilty cases (other than those they have cited) of similar amounts and culpability. As I understand these cases, their sentences range between 12 to 15 months’ imprisonment where the economic value involved in the offence is about S$50,000 and the level of culpability is pegged at low to moderate.

24     I impose a sentence of 15 months’ imprisonment on the cheating charge.

Analysis of issues for CBT charge

25     I analyse the issues afresh, this time around in respect of the CBT charge. I preface my analysis by observing that the dominant sentencing principle for CBT offences is deterrence: PP v Osi Maria Elenora Protacio [2016] SGHC 78 at [11]. The starting consideration is the value of the property misappropriated: PP v Lam Leng Hung [2017] 4 SLR 474 at [367]. It is the key indicator of the harm perpetrated as well as the culpability of the offender: PP v Ewe Pang Kooi [2019] SGHC 166 at [9].

Issue 1(a): Harm caused by offence is low to moderate

26     In sentencing property offences, the greater the economic value involved in the offence, the heavier the sentence, since the economic value is proxy for the degree of criminal benefit received by the offender and the degree of harm caused to the victim harm and both are relevant sentencing considerations: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [42].

27     I assess the harm caused in this case to be (on the higher end of) low to moderate, given that:

(a)     the value of the diamonds entrusted is S$55,800;

(b)     Amdia’s actual loss was $6,720. This was the amount that Mr Shenoy eventually had to pay the pawnshop to redeem the diamonds;

(c)     the actual benefit that Mr Tan had gained was S$6,720. This was the amount that he had received from pawning the diamonds and spent; and

(d)     the losses fell where they were because no restitution was made.

Issue 1(b): Mr Tan’s culpability is moderate

28     I assess Mr Tan’s culpability in the offence to be moderate. For CBT offences, all other things being equal, the larger the amount dishonestly misappropriated, the greater the culpability of the offender, and the more severe the sentence of the court: Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 at [18]. Apart from the value of the property misappropriated: see [26], above, I also took into account the fact-specific factors enumerated in PP v Lam Leng Hung [2017] 4 SLR 474 at [368] and [389] in arriving at the starting point sentence:

(a)     quality and degree of trust reposed in the offender. Mr Tan was readily entrusted with a sizable consignment of Amdia’s jewellery because of the long-standing relationship that he had with Mr Shenoy over six to seven years, and the goodwill generated from previous business dealings (based on prompt payment to Amdia after selling Amdia’s jewellery) that Amdia had with a previous company that Mr Tan ran with his sister;

(b)     the use to which the monies that was dishonestly taken was put. Mr Leong used the proceeds from pawning the jewellery to pay off his debts; and

(c)     effect upon the victim. Mr Shenoy eventually had to redeem the jewellery from the pawnshop for S$6,720 and come to terms with the realities of having to re-assess his patently mistaken impression of Mr Tan and future dealings with him.

29     Because I have assessed the harm caused to be (on the higher end of) low to moderate and Mr Tan’s culpability in the offence to be moderate, I assess the starting point sentence to be ten months’ imprisonment.

Issue 2: Offender-specific aggravating and mitigating factors

30     I next consider whether any discounts or uplifts to the starting point sentence is warranted depending on the relevant aggravating and mitigating factors personal to Mr Tan that are present in this case: Ewe Pang Kooi at [9].

Mr Leong not regarded as first offender

31     Even though Mr Tan had not committed previous property offences, he had committed a slew of them in the present case. It would be perverse to regard him as a first offender marking his first foray into this genre of criminal conduct, when he would not have been regarded as such, even if he were to have no prior convictions: Chen Weixiong Jerriek v PP [2003] 2 SLR(R) 334 at [17].

Genuine contrition and remorse

32     Mr Tan also voluntarily and contemporaneously confessed his criminal wrongdoing to Mr Shenoy. The consignment invoices and the pawnshop ticket were also duly furnished to Mr Shenoy as well. This is decidedly in Mr Tan’s favour, along with his early indication of guilty plea, to which I accord him the full 30% reduction in sentence.

33     Viewed in the round, his contemporaneous display of genuine contrition and remorse at the time of the offence carries substantial mitigatory weight and warrants a two-month downward adjustment to the starting point sentence. No upward adjustment of the starting point sentence is required because there are no personal aggravating factors. The final sentence that I arrive at on the CBT charge is therefore six months’ imprisonment.

Issue 3: Application of case authorities for sentencing

34     The sentences that the parties have proposed are broadly consistent with the sentences imposed for previous CBT cases of similar amounts and culpability (other than the cases that the parties have cited). As I understand those cases, their sentences range between six to nine months’ imprisonment where the economic value involved in the offence is about S$50,000 and culpability is pegged at a low to moderate level.

Conclusion

Individual sentences

35     The individual sentences that I impose are therefore:

(a)     15 months’ imprisonment on the cheating charge; and

(b)     Six months’ imprisonment on the CBT charge.

Aggregate sentence of 21 months’ imprisonment imposed

36     The parties have agreed that the sentences on both charges should run consecutively. I too agree. Since the offences to which they relate are separate, unrelated and violate different legally-protected interests, the sentences on them should presumptively be ordered to run consecutively: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [41] and [102]. I therefore sentence Mr Tan to an aggregate imprisonment term of 21 months’ imprisonment.

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Public Prosecutor v Jin Xin
[2024] SGDC 268

Case Number:DSC 900420 of 2021
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Gregory Gan and Nur Ishameena (Ministry of Manpower) for the Prosecution; Michelle Yap (M Yap Law) for the accused person.
Parties: Public Prosecutor — Jin Xin

Criminal Procedure and Sentencing – Sentencing – Section 12(1) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) – Worker falling to his death after an overhead travelling crane collided into his scissor lift – Sentencing tariffs under s 12(1) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) where the offender is a natural person

11 October 2024

District Judge Kow Keng Siong:

Introduction

1       Jin Xin (“Accused”) was convicted after a trial of having failed to take measures as were necessary to ensure the safety and health of his employees at work. This is an offence under s 12(1) read with s 20 and punishable under s 50(a) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”): Public Prosecutor v Jin Xin [2024] SGDC 90 (“Conviction GD”).

2       Following the conviction, the parties submitted their sentencing recommendations. These recommendations, as well as my eventual sentencing decision, are as follows:

Prosecution’s recommendations

Defence’s recommendations

Sentence

12 to 14 months

$80,000 to $100,000 OR 9 months

8 months

Harm: High

Culpability: Moderate

Harm: High (top end of the range)

Culpability: Moderate (middle of the range)

Harm: High

Culpability: Moderate



3       This judgement is to explain my reasons for the sentence. (The same references as those in the Conviction GD will be used in this judgement.)

Parity issue

4       I begin by noting that the key thrust of the Defence’s submissions was that I should apply the parity principle in determining the Accused’s sentence. In this regard, they highlighted the following for my consideration.

Party

Charge

Sentence

Yan San[note: 1]

Offence under s 20 read with s 14A(1)(b) read with s 14A(3) and punishable under s 50(b) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that any contractor engaged by the principal, has taken adequate safety and health measures in respect of any machinery, equipment, plant, article or process used, or to be used, by the contractor or any employee employed by the contractor, namely, by having failed to ascertain that Fusion had conducted a risk assessment in relation to the safety and health risks posed to any person who may be affected by the Fusion’s use of the overhead travelling cranes.

$50,000

Fusion[note: 2]

Offence under s 11(a) read with s 20 and punishable under s 50(b) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that the workplace was safe and without risks to the safety and health to any person within the workplace, namely, by having –

(a) Failed to ensure that only trained personnel had access and control of the OTC and Lift;

(b) Failed to prevent incompatible works involving the concurrent use of the OTC and the Lift from being carried out; and

(c) Failed to take effective measures to warn workers of the approach of the OTC.

Another charge under reg 3(1) punishable under reg 8(a) of the Workplace Safety and Health (Risk Management) Regulations (Cap 354A, Rg 8, 2007 Rev Ed) for having failed to conduct a Risk Assessment in relation to the safety and health risks posed by the use of the OTC was taken into consideration for the purpose of sentencing.

$250,000

Ng Chin Sang (an officer of Fusion)[note: 3]

Offence under s 20 read with s 11(a) and s 48(1) and punishable under s 50(a) of the WSHA –

For having failed to take, so far as was reasonably practicable, such measures as were necessary to ensure that the workplace was safe and without risks to the safety and health to any person within the workplace, in that Fusion had –

(a) Failed to ensure that only trained personnel had access and control of the OTC and Lift;

(b) Failed to prevent incompatible works involving the concurrent use of the OTC and the Lift from being carried out; and

(c) Failed to take effective measures to warn workers of the approach of the OTC.

$60,000 i/d 3 months’ imprisonment



5       In particular, the Defence submitted that there should be parity between Ng Chin Sang’s sentence and the Accused’s sentence for the following reasons.[note: 4]First, the Accused and Ng Chin Sang had both been convicted pursuant to s 48(1) of the WSHA. Second, the prescribed punishment for their offences is also the same – i.e., s 50(a) of the WSHA. Finally, the Accused’s and Ng Chin Sang’s offences involved the same workplace accident.

6       I am unable to agree that there should be parity between Ng Chin Sang’s sentence and the Accused’s sentence.

(a)     These two individuals had been convicted for different types of safety breaches under the WSHA – namely, s 12(1) in the case of the Accused (breach of his company’s duty as an employer) and s 11(a) in the case of Ng Chin Sang (breach of his company’s duty as an occupier).

(b)     The mere fact that their convictions were pursuant to s 48(1) and that they faced the same prescribed punishment is neither here not there. In Public Prosecutor v Formwork Hire (S.E.A.) Pte Ltd [2024] SGDC 148 at [22] to [29], I had explained that an accused persons’ culpability remains a key sentencing consideration for s 48(1) convictions.

(c)     As such, even though the Accused’s and Ng Chin Sang’s convictions involved the same accident, it is important to consider the nature and extent of their respective responsibilities for the accident. In this regard, I found that the primary duty to ensure that (i) the Deceased and Kumarasan had gone for the scissor lift operator course before operating the Lift and (ii) they carried out the Work under the immediate supervision rested on the Accused – not Ng Chin Sang. In my view, there is a closer causative link between the Accused’s failures and the accident than Ng Chin Sang’s failures. This is significant as “the closer the causative link between an offender’s lapses … and the harm, the greater the offender’s culpability: Koh Lian Kok at [78].

(d)     Furthermore, the Accused’s safety breach is also more reprehensible than Ng Chin Sang’s breach. This is because the Accused (i) had allowed the Deceased and Kumarasan to operate the Lift knowing that they did not have the requisite qualification, and (ii) had done so to secure a benefit to himself – i.e., to avoid further delays in the Work.

Applicable sentencing framework

7       Having addressed the parity issue, I will now explain the sentencing approach that I had adopted in this case.

Manta Equipment

8       I begin with Public Prosecutor v Manta Equipment (S) Pte Ltd [2023] 3 SLR 327 (“Manta Equipment”). In that case, the High Court had set out (at [28]) the following sentencing framework for a breach of the statutory duty in s 12(1) – i.e., the same duty involved in the present case.

(a)     First, a court determines the level of harm posed by the offence and the level of the offender’s culpability.

(i)       According to the High Court, the following factors are relevant in determining the level of harm: (1) The seriousness of the harm risked; (2) The likelihood of that harm arising; (3) The number of people likely to be exposed to the risk of the harm; and (4) The actual harm that was occasioned by the risk that stemmed from the offender’s negligent act. The High Court held that where the potential harm is likely to be death or serious injury, the harm can be considered to be “high”. This is so even if it did not materialise. It was also held that if death or serious injury did occur, then the harm would typically be assessed near the top end of the “high” range.

(ii)       According to the High Court, the following non-exhaustive factors are relevant in determining the level of culpability: (1) The number of breaches or failures; (2) The nature of the breaches; (3) The seriousness of the breaches – whether they were a minor departure from the established procedure or whether they were a complete disregard of the procedures; (4) Whether the breaches were systemic or whether they were part of an isolated incident; and (5) Whether the breaches were intentional, rash, or negligent.

(b)     After determining the level of harm and culpability, the court is to then derive the starting point sentence for the offence based on the following sentencing tariffs which apply to claim trial cases:

 

Culpability

Harm

 

Low

Moderate

High

High

$150,000 to $225,000

$225,000 to $300,000

$300,000 to $500,000

Moderate

$75,000 to $150,000

$150,000 to $225,000

$225,000 to $300,000

Low

Up to $75,000

$75,000 to $150,000

$150,000 to $225,000



(c)     Thereafter, the starting point sentence should be calibrated according to offender-specific aggravating and mitigating factors present in the case.

(i)       The aggravating factors include the following: (1) the offender evidently lacks remorse; (2) the presence of relevant antecedents; and (3) any offences taken into consideration for the purposes of sentencing.

(ii)       The mitigating factors include the following: (1) the offender has voluntarily taken steps to remedy the problem; (2) the offender has provided a high level of co-operation with the authorities for the investigations, beyond that which is normally expected; (3) there is self-reporting and acceptance of responsibility; and (4) there is a timely plea of guilt.

Sentencing tariffs

9       The sentencing tariffs in Manta Equipment (see [8(b)] above) are intended to apply to offenders who are legal persons. As such, they cannot be simply applied to the present case – where the offender is a natural person: Manta Equipment at [36].

10     In Koh Lian Kok v Public Prosecutor [2024] SGHC 132 (“Koh Lian Kok”), the High Court had laid down (at [79(a)]) the following sentencing tariffs for breaches of s 12(2) of the WSHA. These tariffs are applicable to an offender who is a natural person:

 

Culpability

Harm

 

Low

Moderate

High

Low

Fine up to $75,000

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

Moderate

Fine of more than $75,000 and up to $175,000

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

High

Fine of more than $175,000 and up to $200,000, or up to 6 months’ imprisonment

More than 6 months and up to 12 months’ imprisonment

More than 12 months and up to 24 months’ imprisonment



11     Although the Accused’s offence involved a breach of s 12(1) and not s 12(2) (as in Koh Lian Kok), I am of the view that the above sentencing tariffs can be applied to the present case as well. My reasons are as follows:

(a)     The purpose of the duties in s 12(1) and s 12(2) is identical – to protect workers from danger. The only difference is that 12(1) imposes the duty on an employer to protect his employee, whereas s 12(2) requires an employer to protect other persons – not being his employees – who may be affected by any undertaking carried on by him in the workplace. In my view, this difference does not materially alter the mischief targeted by s 12(1) and s 12(2).

(b)     The above view finds support in Koh Lian Kok. There, the High Court held (at [57] to [60] and [79]) that the sentencing framework for a breach of s 12(1) and s 12(2) should be the same.

(c)     Finally, both the Prosecution and the Defence had proceeded on the basis that the sentencing tariffs in Koh Lian Kok apply to the present case.

Applying the framework

12     Having set out the sentencing framework and tariffs, I will now apply them to the present case.

Level of harm

13     I start with the level of harm posed by the Accused’s offence. In my view, this should be classified as “high” – in line with the guidance in Manta Equipment at [28(b)] and Koh Lian Kok at [79(a)]: see [8(a)(i)] in italics above. The Work in the present case is inherently dangerous: Conviction GD at [18].

(a)     Kumaresan and the Deceased were working at a height of 7.7 m. The Accused’s failure in ensuring that they were properly supervised had exposed these workers to the risk of fall from height: Conviction GD at [48] to [53].

(b)     Additionally, it bears highlighting that Kumaresan and the Deceased were not qualified to operate the Lift. I agreed with the Prosecution that[note: 5] –

Had the Deceased attended a scissor lift operator course, he would have been better able to anticipate foreseeable safety risks in the work environment, such as the OTC colliding into the scissor lift. The accused’s failure to send the Deceased for a course meant that he was not fully aware of the dangers of working alone on the scissor lift. Further, had a supervisor been physically present, the supervisor could have either stopped the Deceased from working alone or warn the Deceased about any danger from the OTC.

[footnoting removed]

(c)     I also agreed with the Prosecution that the above danger in the Work was heightened by the following:[note: 6]

The OTC could be operated, by remote, from anywhere on Level 3. As Level 3 was a big area with many pillars, the operator might not notice the Deceased working on the scissor lift, thereby increasing the chances of a collision between the scissor lift and the OTC beam.

The chances of such a collision were heightened by the possibility that the moving beam of the OTC might have been in the Deceased’s and Kumaresan’s blind spot when they were working. As the OTC did not emit any audible warning sound while in operation, the workers would not have been aware of the under unless a supervisor was present to act as the lookout.

14     The above safety risks eventually materialised and had contributed to the Deceased’s death: Conviction GD at [59] to [61]. Suffice to note, the Defence accepted that the level of harm in the Accused’s offence “would be in the top end of the high range, since death had occurred”.[note: 7]

Level of culpability

15     Next, I assessed the level of the Accused’s culpability for the offence and the Deceased’s death. I found this to be “moderate”. My reasons are as follows.

(a)     For two days, the Accused had allowed Kumaresan and the Deceased to operate the Lift by themselves – without any immediate supervision from Ravikumar. This was despite knowing that the two workers were not qualified to operate the Lift. In other words, the Accused had recklessly put the safety of two untrained workers at risk.[note: 8]

(b)     The Accused had acted in such a manner because there was a delay in the Work. In my view, the Accused’s explanation that he could not afford the time to send Kumaresan and the Deceased for the scissor lift operator course is not a valid excuse for putting their safety and lives at risk: Conviction GD at [26(b)].

(c)     I accepted the Defence’s submission that the breaches were not systemic. There is no evidence to show that the Accused had routinely instructed his employees to work from height despite not having been trained. The safety breach in the present case appeared to be an isolated incident.[note: 9]

(d)     Finally, I noted that this was not a case where the Deceased had fallen to his death while carrying out the Accused’s instructions. The Deceased had been specifically instructed to stop work when Kumaresan ended his work for the day. Kumaresan reminded the Accused of these instructions again when he left the workplace. For reasons known only to himself, the Deceased disregarded these instructions and chose to carry out the Work alone after Kumaresan had left. If the Deceased had complied with the Accused’s instructions, he would probably not have fallen to his death.

Starting point sentence

16     Based on my assessment of “high” harm and “moderate” culpability, the indicative sentence is more than six months and up to 12 months’ imprisonment: see [10] above.

17     Considering the circumstances of the Accused’s offence, I found that a starting point sentence of eight months’ imprisonment would be appropriate.

Adjustment for offender-specific factors

18     I next considered whether there were any offender-specific factors that warranted an adjustment to the starting point sentence. I agreed with the Prosecution that there were none.[note: 10]

19     For completeness, I wish to state that I am mindful that there had been delay in the prosecution of the Accused’s offence. The accident occurred in 2017. He was however charged in court only in July 2021. In my view, the delay is probably attributable to the advent of the COVID pandemic which stretched from 2020 to 2022. Such a delay should not affect the Accused’s sentencing.

Conclusion

20     For the above reasons, I sentenced the Accused to eight months’ imprisonment. In my view, this sentence is in line with that imposed in Koh Lian Kok, which involved a more serious offence. See Annex A.

________________________________

ANNEX A

CASE COMPARISON

 

Factors

Koh Lian Kok

Accused’s case

A

Level of harm

Low end of the high category

High

1

Seriousness of the harm risked

Risk of death or very serious injury

2

Likelihood of that harm arising

Very high likelihood

3

Number of people likely to be exposed to the risk of the harm

3

2

4

Actual harm that was occasioned by the risk that stemmed from the accused person’s negligent act

Death was caused.

This fact was however not considered in sentencing. The court accepted that the offender had pleaded guilty on the basis that the Prosecution would not rely on the fact of death in their sentencing submissions, and it would not be fair to allow the guilty plea to be rejected given how far the proceedings had progressed.

Safety lapses contributed to the Deceased’s death

B

Level of culpability

High

Moderate

5

Number of breaches

Numerous

Repeated breaches over two days.

6

Nature of the breach

The offender did not ensure that (a) the drivers were registered as a crane operator, (b) they knew of their statutory duties as crane operators, and (c) there was a lifting plan, lifting supervisor, signalman or rigger present at each lifting operation. The above lapses meant that there was a general dearth of qualified persons at all lifting operations conducted by the offender’s employees.

The Accused had failed to ensure that only competent workers were tasked to operate a scissor lift. He had also failed to ensure that Ravikumar supervised the Work.

7

Seriousness of the breach

The offender disregarded the procedures completely. His practice was to only send a single employee to carry out lifting operations.

Major departure from the established procedure.

8

Is the breach systemic or an isolated incident

Systemic

Isolated incident

Additionally, it bears highlighting that the Deceased had been instructed to stop work when Kumaresan ended his work for the day. Despite these instructions, the Deceased continued to work. It was during this time that the accident occurred.

9

Is the breach intentional, rash or negligent

The offender was utterly indifferent to the harm and danger that he could cause or expose others to.

The Accused committed the breaches rashly.

C

Starting sentence

18 months’ imprisonment

8 months’ imprisonment

D

Offender-specific aggravating factors

NIL

NIL

E

Offender-specific mitigating factors

Pleaded guilty

NIL

Cooperation with authorities

F

Sentence imposed

18 months’ imprisonment

8 months’ imprisonment



[note: 1]Agreed Bundle at pages 209 – 211.

[note: 2]Agreed Bundle at pages 212 – 222.

[note: 3]Agreed Bundle at pages 215 – 225.

[note: 4]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [13] to [15], [17] and [23].

[note: 5]Prosecution’s Address on Sentence at [9].

[note: 6]Prosecution’s Address on Sentence at [11].

[note: 7]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [35].

[note: 8]Prosecution’s Address on Sentence at [6].

[note: 9]Defence’s Mitigation Plea and Sentencing Submissions dated 2 October 2024 at [36(a)].

[note: 10]Prosecution’s Address on Sentence at [15].

"},{"tags":["Criminal Law – Statutory offences – Prevention of Corruption Act (Cap 104, 1970 Rev Ed) – Corruptly giving gratification – Incriminating statements – Conduct of statement recording officers – Whether statements inaccurate, unreliable and unsafe to convict-Mens reas of recipient and givers & consistency of their evidence – Acquittal"],"date":"2024-10-11","court":"District Court","case-number":"DAC-913905-2020 & another; DAC-913902-2020 & another, MA-9196-2024-01 & MA-9197-2024-01","title":"Public Prosecutor v Pay Teow Heng and another","citation":"[2024] SGDC 267","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32312-SSP.xml","counsel":["DPPs Alan Loh, Kelvin Chong, Andrew Chia & Yap Jia Jun (Attorney-General's Chambers) for the Prosecution","Tan Chee Meng SC, Paul Loy & Samuel Navindran (Wong Partnership LLP) for Pay","Cavinder Bull SC, Jonathan Yap, Chua Xyn Yee & Chua Ying Ying Erin (Drew & Napier LLC) for Pek"],"timestamp":"2024-10-17T16:00:00Z[GMT]","coram":"Soh Tze Bian","html":"Public Prosecutor v Pay Teow Heng and another

Public Prosecutor v Pay Teow Heng and another
[2024] SGDC 267

Case Number:DAC-913905-2020 & another; DAC-913902-2020 & another, MA-9196-2024-01 & MA-9197-2024-01
Decision Date:11 October 2024
Tribunal/Court:District Court
Coram: Soh Tze Bian
Counsel Name(s): DPPs Alan Loh, Kelvin Chong, Andrew Chia & Yap Jia Jun (Attorney-General's Chambers) for the Prosecution; Tan Chee Meng SC, Paul Loy & Samuel Navindran (Wong Partnership LLP) for Pay; Cavinder Bull SC, Jonathan Yap, Chua Xyn Yee & Chua Ying Ying Erin (Drew & Napier LLC) for Pek
Parties: Public Prosecutor — Pay Teow Heng — Pek Lian Guan

Criminal Law – Statutory offences – Prevention of Corruption Act (Cap 104, 1970 Rev Ed) – Corruptly giving gratification  – Incriminating statements  – Conduct of statement recording officers  – Whether statements inaccurate, unreliable and unsafe to convict-Mens reas of recipient and givers & consistency of their evidence  – Acquittal

11 October 2024

District Judge Soh Tze Bian:

(A)   CHARGES

1       The accused persons, Pay Teow Heng (Pay) and Pek Lian Guan (Pek) claimed trial to the following charges:

(i)     Pay’s charges

(a)     DAC-913905-2020:

“…you, on or after 2 June 2017, in Singapore, while a Director of Tiong Seng Contractors (Private) Limited (“TS”), did corruptly give gratification in the form of a loan of $200,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, and you have thereby committed an offence punishable under Section 6(b)[note: 1] read with Section 7[note: 2] of the Prevention of Corruption Act[note: 3], Chapter 241.”

(b)     DAC-913906-2020 :

“…you, on or around 28 March 2018, in Singapore, while a Director of Tiong Seng Contractors (Private) Limited (“TS”), did corruptly give gratification in the form of a loan of $150,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, and you have thereby committed an offence punishable under Section 6(b) read with Section 7 of the Prevention of Corruption Act, Chapter 241.”

(ii)   Pek’s charges

(a)     DAC-913902-2020:

“…you, while Managing Director of Tiong Seng Contractors (Private) Limited (“TS”), did abet by intentionally aiding Pay Teow Heng (“Pay”), Director of TS, to corruptly give gratification in the form of a loan of $200,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, to wit, on or before 2 June 2017, in Singapore, you approved, facilitated and caused TS to extend a $200,000 staff loan to Pay, knowing that Pay would use the monies from the said staff loan to extend a loan to Foo, and you have thereby committed an offence punishable under Section 6(b) read with Sections 7 and 29(a)[note: 4] of the Prevention of Corruption Act, Chapter 241.”

(b)     DAC-913903-2020:

“…you, in or around March 2018, in Singapore, while Managing Director of Tiong Seng Contractors (Private) Limited (“TS”), did abet by intentionally aiding Pay Teow Heng (“Pay”), Director of TS, to corruptly give gratification in the form of a loan of $150,000 to an agent, namely, Foo Yung Thye Henry (Foo Yongtai Henry) (“Foo”), an employee of the Land Transport Authority (“LTA”), as an inducement for doing acts in relation to Foo’s principal’s affairs, to wit, advancing the business interest of TS with the LTA in relation to existing LTA contracts or future proposals for contract, to wit, you approved, facilitated and caused TS to extend a $150,000 staff loan to Pay, knowing that Pay would use the monies from the said staff loan to extend a loan to Foo, and you have thereby committed an offence punishable under Section 6(b) read with Sections 7 and 29(a) of the Prevention of Corruption Act, Chapter 241.”

(B)   STATEMENT OF AGREED FACTS

2       Pursuant to this court’s directions made during a JPTC, the parties had, prior to the commencement of the trial, agreed on a Statement of Agreed Facts (SOAF)[note: 5] dated 1 June 2022.

(C)   PROSECUTION’S CASE

3       The Prosecution’s case is set out in its opening statement dated 1 June 2022[note: 6]. To prove its case against Pay and Peck, the Prosecution tendered a voluminous list of 51 exhibits and called 16 witnesses as follows:

S/n

Name – Role

Language

Marking

1.

Tan Kian Tat – CPIB Officer

(IO Jeffrey)

English

PW1

2.

Tay Wenxun – CPIB Officer

(IO Tay)

English

PW2

3.

Lim Eng Cheung – CPIB Officer

(IO Chris Lim)

English

PW3

4.

Neo Shi Long – CPIB Forensic Examiner

English

PW4

5.

Kee Zhong Wai – CPIB Forensic Examiner

English

PW5

6.

Choo Hong Chun – Witness

English

PW6

7.

Andrew Khng – Witness

English

PW7

8.

Pay Sim Tee – Witness

English

PW8

9.

Pek Dien Kee – Witness

English

PW9

10.

Johnston Kan – CPIB Officer

(IO Johnston Kan)

English

PW10

11.

Frankie Lee – CPIB Officer

English

PW11

12.

Lim Guo Hong Benjamin – CPIB Forensic Examiner

(SI Benjamin Lim)

English

PW12

13.

Low Cher Keow – Witness

(Low)

English

PW13

14.

Foo Yung Thye Henry (Fu Yongtai Henry) – Witness

(Foo)

English

PW14

15.

Angie Heng – Witness

English

PW15

16.

Lew Yii Der – LTA Witness

(Lew)

English

PW16



(D)   CLOSE OF THE PROSECUTION’S CASE & DEFENCE SUBMISSION OF NO CASE TO ANSWER

4       At the close of the Prosecution’s case, Pay and Pek made a submission on no case to answer. Having carefully considered the parties’ submissions[note: 7], and on my assessment and sifting of the various arguments raised by the parties in the light of the evidence adduced by the Prosecution before this Court and the applicable laws governing a Defence No Case to Answer (NCTA) submission at the close of the Prosecution’s case under s 230(1)(j) of the Criminal Procedure Code 2010 (CPC), I dismissed the Defence NCTA submission for the following reasons on what I see are the key disputed issues raised by the parties.

Pay & Peck’s arguments

5       On the law governing a Defence NCTA submission, both parties are in agreement but disagree on what a “minimum evaluation of the evidence as a whole” entails. Based on the case authorities of Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 as well as other authorities cited by the parties on the law governing a Defence NCTA submission, and also the case of Roshdi v PP [1994] 3 SLR(R) 1 (which remains good law contrary to Pay’s arguments), I took the view that while it was clear that the Court must evaluate all evidence in totality without cherry-picking, any evidence that is exculpatory to the inculpatory parts of the accused persons’ CPIB statements must be considered at the end of the trial and not at the close of the Prosecution’s case. The Court is also not required to make comprehensive and conclusive factual findings on how the CPIB statements ought to be interpreted at the close of the Prosecution’s case, as was held by the Court of Appeal in Tan Siew Chay and ors v PP [1993] 1 SLR(R) 267 at [75] that this level of analysis should not be applied to the accused persons’ statements at the close of the Prosecution’s case. The Prosecution’s case on mens rea primarily rests on the accused persons’ admissions in their CPIB statements which show the true purpose of the loans to Foo that despite Pek’s misgivings, Pay and Pek decided to loan $350,000 to Foo because they were worried that Foo might otherwise cause problems for TSC in the T220 Contract, and these admissions alone establish a prima facie case that both Pay and Pek have the guilty knowledge with the requisite corrupt mens rea.

6       In the light of the case authorities of PP v Tan Aik Heng [1995] 1 SLR(R) 710 and Syed Abdul Aziz and anor v PP [1993] 3 SLR(R) 1, whether inculpatory parts[note: 8] of the statements of Pay and Peck are inconsistent with other evidence (such as Foo’s testimony and use of staff loans to Pay to loan to Foo) or has been entirely refuted by Pay and Peck as the makers is irrelevant to the Court’s inquiry at the close of the Prosecution’s case, and hence the inculpatory portions in the statements of Pay and Peck as relied upon by the Prosecution can be relied on to make out a prima facie case.

7       In my view, any alleged inconsistencies between the statements of Pay and Peck and the testimonies and conduct of the investigating officers responsible for recording these statements, as well as whether there is an abuse of the statement recording process (such as whether Pay’s first and second statements had been properly obtained by IO Chris Lim and IO Johnston Kan[note: 9] with little weight to be given to Pay’s alleged concessions in his second statement, and whether Pek’s first statement is “a reflection of IO Jeffrey’s authorship” rather than what he told IO Jeffrey who had allegedly combined and repackaged his answers to frame him[note: 10][note: 11]), which may affect the accuracy and reliability of these statements, as contended by the Defence, are matters to be decided by the Court only after the Defence is called and after the conclusion of the trial as Pay and Pek would need to testify on their respective conduct and circumstances during their statement recordings, including why they had agreed to and signed their statements, before a proper decision can be made on these matters. In this regard, I took the view that Pek’s reliance on the cases of Neo Ah Soi v PP [1996] 1 SLR(R) 199 at [16] and PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 at [78]-[79] that there was a predetermination made by IO Jeffrey of Pek’s guilt prior to the recording of Pek’s statements which raises serious doubts about the reliability of Pek’s statements as recorded by IO Jeffrey, and that the phrasing of Pek’s statement by IO Jeffrey in a manner that casts a certain light on Pek’s mental state (such as imputing a guilty mental state onto him) severely affected the reliability and weight to be accorded to Pek’s statements are issues to be decided after the conclusion of the trial. In any event, the procedural safeguards in respect of statement recording in s 22 CPC were complied with in the present case, namely, the accused be allowed to read through his statement or his statement be read back to him, and he be allowed to make amendments. Both Pay and Pek were given time to read through their statements or had their statements read back to them, allowed the opportunity to make amendments, made amendments where necessary, and eventually signed off on the statements. As noted by the Prosecution, the conclusions and findings that Pay and Pek had urged this Court to make as regards their respective CPIB statements are either not borne out by the evidence before this Court at the close of the Prosecution’s case, or are premised on assumptions of the evidence to be given by Pay and Pek, and hence both of them must be called to testify in their respective defence.

8       Based on the High Court guidance in the cases of PP v Liew Kim Choo [1997] 1 SLR(R) 627, PP v IC Automation (S) Pte Ltd [1996] 2 SLR(R) 799 at [18] and PP v Sng Siew Ngoh [1995] 3 SLR(R) 755, since the threshold for finding evidence to be inherently incredible or manifestly unreliable is high, I took the view that as there are two versions of facts placed before this Court over how the CPIB statements of Pay and Peck ought to be interpreted, it will be more appropriate to adopt the simple approach and assume that the version favourable to the Prosecution is true at the close of the Prosecution’s case and draw the reasonable inferences from it, instead of assessing the evidence to determine if it is so contradictory such that it is manifestly unreliable and should be disregarded completely. Further, while the Court has to find that any discrepancies in the evidence must be so material such that the entire evidential value of the evidence is nullified to the extent that the evidence is not even prima facie reliable (as held by the High Court in PP v Tan Aik Heng [1995] 1 SLR(R) 710 at [29]), I found that there are no discrepancies fitting this description based on the evidence placed before this Court at the close of the Prosecution’s case.

9       In addition to the accused persons’ admissions in their statements, whether there is evidence from which this Court can draw a reasonable inference that the accused persons acted with guilty knowledge (such as how Pay handed Foo the loans, why Pay never informed his wife of the loans for Foo, what happened at the Tiong Seng Contractors (TSC) Board meetings to approve the Loans to Pay for Foo, and whether and why there was any difference from other staff loans, why Pay deleted his Whatsapp correspondence, and whether and why Pay had requested information from Foo regarding LTA projects as contended and relied by the Prosecution), I took the view that both Pay and Peck should be called to testify and explain these issues.

10     As regards the arguments of both Pay and Pek that the Loans were not corrupt as they came with repayment terms and Foo was required to pay interest for the loaned monies with partial repayment of the First Loan, I agreed with the Prosecution that loan would generally include repayment terms and may require the borrower to pay interest and while the Prevention of Corruption Act 1960 (PCA) does not define what constitutes a “loan”, the Singapore Courts have accepted the following definition of “loan”[note: 12]:

“A loan of money may be defined, in general terms, as a simple contract whereby one person (“the lender”) pays or agrees to pay a sum of money in consideration of a promise by another person (“the borrower”) to repay the money upon demand or at a fixed date. The promise of repayment may or may not be coupled with a promise to pay interest on the money so paid.

11     Hence, I accepted the Prosecution’s arguments that the inclusion of “loans” as a specific form of gratification under s 2 of the PCA[note: 13] shows that there is no legal basis to argue that a loan which obliges the borrower to pay interest somehow falls outside the definition of gratification under s 2 of the PCA. Further, caselaw showed that whether Foo repaid or attempted to repay the Loans is irrelevant to the charges which concern corruptly giving the Loans in question in the first place.[note: 14] On the facts, I found that the Loans undoubtedly fall within the definition of gratification under s 2 of the PCA. Foo had testified that he resorted to borrowing from contractors (such as Pay) as he had exhausted all other means of credit, including illegal moneylenders.[note: 15] The Loans enabled Foo to settle some of his outstanding financial liabilities, which was what he needed. In this regard, I rejected Pek’s arguments and reliance on the cases of PP v Low Tiong Choon [1998] 2 SLR(R) 119 and PP v Khoo Yong Hak [1995] 1 SLR(R) 769 that there was no corrupt intention underlying the Loans and their repayments with interest by Foo to Pay. As noted by the Prosecution, regarding the form of the Loans, what this Court should ultimately be concerned with “whether at the time of the transaction… the [accused] possessed the requisite guilty mind.”[note: 16] As held by the High Court in PP v Wong Chee Meng and another appeal [2020] 5 SLR 807 at [73], there is no material difference between gratification taking the form of an outright gift and that in the form of a loan as far as culpability is concerned as the quantum of the loan or payment is reflective of the receiver’s greed or of the level of influence or advantage sought by the giver, and any intention on the part of the recipient of the loan to repay the loan was irrelevant[note: 17]. There is no necessity in law for an express request for a bribe or an express reference to a favour to be shown in order to establish a charge of corruption as to impose such a condition is undesirable and far too restrictive and the nets would not be cast wide enough to catch the often subtle and sophisticated forms of corruption, as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20]. As such, this Court would need to examine the intentions of Pay and Peck behind extending the Loans rather than the form of the Loans and both must be called to testify in this regard.

12     As for Pay and Pek’s submissions to this Court to find that they had no reason to believe or suspect that Foo had any power to show favouritism to TSC based on Foo’s evidence[note: 18], Foo’s evidence is purely speculative, as noted by the prosecution, as Foo cannot speak as to Pay and Pek’s knowledge of LTA’s inner workings and processes and both would have to testify, which they have not yet done. In any case, there is no necessity in law for an express reference to a favour to be shown in order to establish a charge of corruption, as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20] and in view of section 9(2) of the PCA which specifically provides that “In any proceedings against any person for any offence under section 6(b), it is proved that he corruptly gave…any gratification to any agent as an inducement or reward for doing or forbearing to do any act or for showing or forbearing to show any favour or disfavour to any person having reason to believe or suspect that the agent had the power, right or opportunity to do so, show or forbear and that the act, favour or disfavour was in relation to his principal’s affairs or business, he shall be guilty of an offence under that section notwithstanding that the agent had no power, right or opportunity or that the act, favour or disfavour was not in relation to his principal’s affairs or business.” (emphasis mine)

13     On the arguments of Pay and Pek that there was nothing irregular about the information Pay requested from Foo in relation to the messages he sent on 3 January 2018 concerning the N108, N110, and N111 Contracts as Pay’s intention behind those messages was simply to ask whether there was a way for Pay himself to check if TSC had prequalified for the said Contracts and not asking Foo to check on TSC’s prequalification results for him,[note: 19] I agreed with the Prosecution that these are allegations which require Pay to testify as to his intention behind his messages, which Pay has not yet done and can only do so after the Defence is called at the close of the Prosecution’s case.

14     The T220 Contract contained Clause 67.2.1 titled “Gifts, Inducements and Rewards” which prohibited “the Contractor or any person employed by him or acting on his behalf” from offering or giving any gifts or consideration to any individual as an inducement or reward for any action in respect of the T220 Contract. Lew had testified that this clause applied to TSC, its employees (such as Pay and Pek), as well as its subcontractors, and the Loans would have fallen within the scope of Clause 67.2.1.[note: 20] I found that the reliance by Pay and Pek on the case of Yuen Chun Yii v PP [1997] 2 SLR(R) 209 (“Yuen Chun Yii”) is misconceived as there is no similar provision to Clause 67.2.1 in Yuen Chun Yii who was found not to be corrupt as there was no pressure on the giver to give the offender anything and all the indications were that the $5,000 had been given purely on the giver’s own initiative, as a spontaneous gesture of generosity which is clearly absent in the present case.

Pay’s arguments

15     I rejected Pay’s reliance on the case of PP v Fan Yow Lee, Ang Lye Siong, Sia Siong Lim [2014] SGDC 164 where the court held that it was entirely plausible that a genuine friendship could have arisen out of what started as a normal working relationship, and there was a distinct possibility amounting to a reasonable doubt that Fan Yow Lee arranged for these drinking sessions simply because he liked to drink, was happy to drink in the company of his friends whom he saw daily at the Xilinx worksite, and because he could put these drinks on Siong Builder’s tab as this case involved private contractors and is clearly distinguishable from the present case involving a senior civil servant in charge of LTA projects who could make TSC’s life difficult on the T220 Contract. In this regard, I took the view that Pay should be required to testify on the payments for his dinners and other outings with Foo and whether, why and how he treated Foo as a friend for whom he had given the $350,000 loan Pay borrowed from TSC.

16     Pay had also argued that the length of time it took (one month) between Foo’s request for the Second Loan (on 28 February 2018) and Pay’s giving of the Second Loan (on 28 March 2018) showed that the Loans were anything but corrupt.[note: 21] Pay asserted that if he were corrupt, he would have not have shown any hesitance in extending the Second Loan and would have “snatched this opportunity with both hands”.[note: 22] I accepted the Prosecution’s submissions that the delay of one month neither goes towards showing that Pay was hesitant about extending the Second Loan, nor that the Loans were not corrupt. Based on the evidence before this Court, it would appear that the delay was attributable to other factors beyond Pay’s control because Pay took some time to persuade Pek to extend the Second Loan to Foo as Pek had initially refused Pay’s request for Foo’s Second Loan and eventually agreed only after some convincing from Pay and time was therefore needed to process the further staff loan of $150,000 to Pay. The cheque for $150,000 from TSC to Pay[note: 23] and the corresponding payment voucher[note: 24] were both dated 27 March 2018, signifying that the staff loan of $150,000 was only approved and processed on that date. The Second Loan was thus only extended one day after the staff loan of $150,000 was processed. As noted by the Prosecution, what is undisputed before this Court is that the moment Pay was able to cash in the cheque for $150,000 from TSC on 28 March 2018, he had on the same day, without any hesitation, headed to pass Foo the same sum in cash near his residence.[note: 25]

17     In my view, Pay’s arguments that none of the LTA officers who gave loans to Foo and Foo himself were not prosecuted and LTA took no disciplinary action against all of them are matters solely for the Public Prosecutor and the relevant LTA disciplinary body to decide respectively and are outside this Court’s jurisdiction.

18     Pay had made the following arguments for which I agreed with the Prosecution that Pay has a case to answer and should be called to give his defence to address the speculative nature of these arguments :

(a)     Pay asked this Court to find that he was aware that Foo would not have been able to influence the TSC’s ESS scores[note: 26]. But, as pointed out by the Prosecution, this is speculation as Pay has not testified about his knowledge of Foo’s involvement in TSC’s ESS scores.

(b)     On Pay’s arguments for this Court to find that he knew Foo could not have influenced TSC’s bids due to LTA’s “immutable, robust and stringent processes”[note: 27], I agreed with the Prosecution that this is speculative as Pay has not testified about what and how he knew of LTA’s processes at the time, beyond a mere mention in his statement that “[he] know [Foo] is not in a position to influence as LTA has a rigid protocol and system”.[note: 28]

(c)     On Pay’s assertion that he was entertaining Foo since Sep 2016, and relied on the Petty Cash Claim form[note: 29] in support[note: 30], Pay is again, as noted by the Prosecution, taking speculative positions as he has not yet given evidence.

(d)     As regards Pay’s argument that the series of messages exchanged between Pay and Foo regarding the T316 Contract does not go towards establishing the charges against Pay as Foo’s answers were inconsequential[note: 31], I accepted the Prosecution’s submissions that this argument is premised on assumptions of what Pay would testify, which he has not at this stage of the proceedings of the close of the Prosecution’s case and Pay’s own submissions, had even relied on several speculative and hypothetical claims regarding Pay: “Had Pay really intended to obtain some corrupt favour…”[note: 32] and “it would not have been all that novel for Pay to know …”[note: 33].

(e)     Pay had argued that in relation to the North-South Corridor (NSC) Contracts (N108, N110, and N111), TSC would not have been able to prepare for the tenders regardless of Foo’s answers on TSC’s second pre-qualification results, and that “it was evident that Pay was asking this as a matter of curiosity”.[note: 34] But, as noted by the Prosecution, despite seeking the information from Foo, Pay now seeks to downplay the importance of the information he was seeking based on assumptions of what Pay would testify and the imputed intentions underlying his WhatsApp messages, as well as not even committing to a particular position – Pay does not state his positions definitively but relies on tentative and speculative language. For example, “Pay would have known …” and “it is evident that Pay was asking out of curiosity”. Hence, it would be inappropriate, at this stage of the trial, for the Court to resolve these arguments based on speculative assumptions of Pay’s testimony and hence, he should be called to testify in his own defence.

(f)     In relation to Pay’s argument that LTA’s check and balances would have meant that Foo was in no position to be of assistance to Pay,[note: 35] I agreed with the Prosecution that this would require Pay to testify as to his perception of Foo’s ability to influence LTA matters, which Pay has not yet done.

19     In any case, as noted by the Prosecution, section 8 of the PCA clearly applies to Pay and the presumption is that the gratification in the form of the loans that Pay gave to Foo were corrupt and he has to rebut the presumption and hence, his defence must be called.

Pek’s arguments

20     On the proposition as espoused by the Court of Appeal in PP v Tan Aik Heng that where there are discrepancies in the evidence, the Court must find that the discrepancies are so material such that the entire evidential value of the evidence is nullified to the extent that the evidence is not even prima facie reliable[note: 36], I rejected Pek’s arguments that this should be limited to discrepancies between statements[note: 37]. I agreed with the Prosecution that Pek’s arguments amounted to taking a myopic view which unnecessarily restrict the principle in PP v Tan Aik Heng and is contrary to the decision of the Court of Appeal in PP v Tan Aik Heng which did not limit its analysis to the specific context of the case before it (i.e., the discrepancies between the co-accused’s statements), and hence the proposition in Tan Aik Heng should hold true for all forms of evidence.[note: 38]

21     As for Pek’s claims that the Prosecution’s reliance on the case of PP v Hendricks Glen Conleth [2003] 1 SLR(R) 426 (“Hendricks Glen”) to show that it suffices if Pek knew or should have suspected that something was improper with the Loans[note: 39] is “highly questionable” in the light of academic commentary[note: 40] cited by Pek, I agreed with the Prosecution that the case of Hendricks Glen which specifically involved a corruption case is still good law as it has not been overruled by the Court of Appeal decisions (relied by Pek) of Bachoo Mohan Singh v PP [2010] 4 SLR 137 (which involved a section 209 Penal Code offence of giving false evidence by a lawyer to the court), and PP v Koh Peng Kiat and another appeal [2014] 4 SLR 703 (which involved an optometrist who assisted his partner, Neo, and a friend, Wong, to purchase counterfeit contact lenses from one ‘Ah Seng’ and Neo and Wong resold these contact lenses to others). I see no reason why this Court should accept academic commentary and non-corruption cases cited by Pek over the specific corruption case of Hendricks Glen itself. As pointed out by the Prosecution, as the Court in Hendricks Glen did not phrase the proposition in a manner which suggested that it was intended to be a test of general application and did not rely on it to ground a conviction, what Pek had omitted to mention is that in Hendricks Glen, the Prosecution had put forth, as a general proposition, that the mens rea for an abetment offence under the PCA would be made out so long as the abettor had knowledge that something was improper about the underlying transaction[note: 41] and it was on this basis that the Court relied on the proposition to pronounce that the mens rea element in that case was not legally made out.

22     On Pek’s argument that the case of PP v Lai King Choon [2004] SGDC 57 (“Lai King Choon”) stands for the proposition that Pek needed to have known Pay intended to give the loans corruptly[note: 42] , I agreed with the Prosecution that the Court in Lai King Choon had expressly pronounced that the presumption in s 8 of the PCA[note: 43] applied both to the abettor and the primary offender, such that the burden was on the abettor to prove on a balance of probabilities that he did not know the circumstances constituting the offence when he facilitated the primary offender in corruptly offering gratification.[note: 44] Based on the case authorities of Garmaz s/o Pakhar and anor v PP [1995] 3 SLR(R) 453 (where the High Court rejected the appellants’ contention that the elements in the charges were not established, as “the presumption of “corruption” in s 8 PCA was properly invoked against the first appellant, Garmaz who was a former Police officer charged with corruptly receiving gratification from one Tan and also against the second appellant, Jaswinder who was charged with abetment of Garmaz’s offence for intentionally arranging with the said Tan to provide the gratification to Garmaz), PP v Lai King Choon [2004] SGDC 57 (which held that the s 8 PCA presumption should apply to an offence of abetment by intentional aiding under s 29 of the PCA) and the High Court decision in Lau Cheng Kai and ors v PP [2019] 3 SLR 374 (which held that the PCA statutorily deems that a conspirator has committed a PCA offence even when he has not factually committed it and further held that s 29[note: 45] of the PCA “treats every abetted PCA offence as having been committed even if the PCA offence abetted is factually not committed in consequence of the abetment”), I accepted the Prosecution’s submissions that Pek is deemed to have committed the principal offences, and therefore s 8 PCA applies to presume that he had the requisite mens rea for his offence and to not apply the s 8 PCA presumption would place Pek in a more favourable position than Pay, although he had abetted a person seeking to have dealings with a public body. Further, I agreed with the Prosecution and rejected Pek’s arguments that the policy consideration noted by the Court in Lai King Choon should be confined to scenarios where the abettor is a public officer and is thus not engaged in the present case as this is an unnecessarily narrow view, unsupported by the legislative purpose of s 8 PCA and s 29 PCA, and also contrary to the following observations of the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [15] that : ”To give effect to the objective of the Act to provide for the more effectual prevention of corruption, the Legislature has seen fit to displace the presumption of innocence against an accused person in the limited cases falling within s 8. These corruption cases are viewed with particular severity because public officers and government matters are involved.” Hence, contrary to Pek’s submissions, the presumption in s 8 of the PCA applies to Pek and he must rebut the presumption and his defence must be called. In any event, as noted by the Prosecution, this issue is ultimately moot because the statements from both Pay and Pek showed that they both knew the whole scheme and Pek did not have any less knowledge than Pay. The evidence from Pek’s first statement44 showed that Pek knew Pay intended to give the Loans corruptly.45 Pek was against the idea of giving loans to Foo and had initially rejected Pay’s requests for TSC to loan money to Foo, explaining to Pay that giving loans to Foo was “not right”, a conflict of interest, “sensitive”, and against TSC’s contract with LTA. However, Pay persuaded Pek that giving loans to Foo would make Pay’s work in the T220 Contract easier; Pek understood this to mean that Pay did not want Foo to cause any problems for the T220 Contract, and loaning Foo money would ensure that the T220 Contract ran smoothly. Pek’s eventual solution was to agree with Pay, but distance himself (and TSC) from the Loans by approving of TSC staff loans to Pay on condition that Pay would have to return the money to TSC, and Pay subsequently making the Loans to Foo.

23     I rejected Pek’s arguments as speculative with no evidence adduced before this Court that LTA officers who gave loans to Foo were not charged with corruption because “these were acts of human kindness, human sympathy, in response to a believable story about [Foo’s] mother’s gambling debts”. Further, as noted by the Prosecution, Pek made no mention of his sympathy for Foo in his statements or address this issue elsewhere which is unsurprising as Pek shared no personal friendship with Foo, unlike Pay. In any case, whether the LTA officers should be charged for corruption is a matter for the Public Prosecutor to decide and outside the jurisdiction of this Court.

24     While I agreed with Pek’s submissions that Foo’s evidence must be accepted by the Prosecution as true unless the Prosecution impeached Foo’s credit under s 157 of the Evidence Act[note: 46], there is a distinction between credit and credibility[note: 47] and s 157 of the Evidence Act on impeaching the credit of a witness does not preclude the Court from assessing the evidence of a witness before it and forming its own conclusion on a witness’s credibility. A court’s findings as to the credibility of a witness can be based on his demeanour and the internal consistency of his own evidence, or the external consistency between his own evidence and extrinsic evidence (such as the evidence of other witnesses, documentary evidence or exhibits), or some combination of these.[note: 48] It is trite law that there is no rule of law that the testimony of a witness must either be believed in its entirety or not at all and a Court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other by scrutinizing each evidence very carefully as this involves the question of weight to be given to certain evidence in particular circumstances.[note: 49] In this regard, I took the view that as Foo’s evidence (where different parts were cited by the Prosecution and the Defence as favourable to each party in their respective Defence NCTA submissions) is internally inconsistent, and also externally inconsistent with other extrinsic evidence (such as the statements of Pay and Pek), it is premature to consider Foo’s evidence at the close of the Prosecution’s case, but it is open to both the Prosecution and the Defence to submit on why and which parts of Foo’s evidence should be accepted or rejected for this Court’s determination (in support of the Prosecution’s case or the Defence, as the case may be) after both Pay and Pek have given their evidence and after the conclusion of the trial.

25     On Pek’s arguments that as far as Foo was concerned, the loans to him came from Pay and not Pek and TSC and Foo would only be beholden to Pay and not Pek and TSC, the evidence adduced at the close of the Prosecution’s case showed that Pay did not inform Foo that the loans came from TSC and not Pay personally, but as a TSC director, Pay had appeared to seek favours from Foo for TSC which would also benefit Pek as TSC’s Managing Director. In any case, as noted by the Prosecution, the evidence showed that the actual money came from TSC to Pay to Foo and that TSC then made Foo repay to Pay to repay TSC all the loans plus interest, and as there is no necessity in law for an express reference to a favour to be shown in order to establish a charge of corruption[note: 50], particularly in view of s 9(2) of the PCA as mentioned above, I agreed with the Prosecution that the Prosecution does not have to prove that Foo was actually showing favour as the corruption offence is made out because the accused persons paid with that intention; ie, when they gave the loan, it was with the intention that Foo would not create trouble for them,

26     Pek had made the following arguments for which I agreed with the Prosecution that Pek has a case to answer and should be called to give his defence to address the speculative nature of these arguments:

(a)     Pek’s arguments that [22] and [23] of his further statement[note: 51] clarifies that he mentioned it was “wrong” to give the Loans to Foo as it would create inconvenience for himself, for Pay, and for TSC[note: 52]. However, as noted by the Prosecution, this is not borne out by [22] and [23], which are the paragraphs relied on as Pek had said nothing about inconvenience at these paragraphs. In fact, at [23], Pek had admitted that lending monies to government employees is ‘sensitive’, i.e., wrong. As Pek is now attempting to put a spin on his further statement which is not supported by the plain wording of the statement, I agreed with the Prosecution that until Pek takes the stand, his assertion is without evidential basis.

(b)     Pek’s assertions for this Court to find that he was not warned that (i) he was the target of the investigations, or (ii) that he needed to give an accurate statement are not borne out by the evidence before this Court[note: 53]. As Pek has hitherto not given evidence before this Court that he was not warned that he was the target of investigations, Pek is asking this Court to assume this fact given that such a warning was not recorded on Pek’s first statement[note: 54] and IO Jeffrey had explained that he did not record down the warning as he did not have this practice.[note: 55] There is similarly no evidence hitherto that Pek was not warned of the need to give an accurate statement as IO Jeffrey maintained during cross-examination that Pek was given this warning.[note: 56] Hence, I agreed with the Prosecution that until Pek gives evidence, these assertions are without evidential basis.

(c)     As for Pek’s argument for this Court to find that he did not understand the meaning of “vividly” when his first statement was recorded since he did not attempt to clarify his use of the word “vividly” in his clarification letter or second statement[note: 57], I accepted the Prosecution’s submission that there is no evidence before this Court that Pek did not know the meaning of the word “vividly” as the absence of the word “vividly” in Pek’s letter and further statement may easily be explained by the fact that he actually knew the meaning of the word and did not take issue with it being used in his first statement. Hence, until Pek gives evidence, this argument is speculative.

(d)     In relation to Pek’s argument that he felt “lulled” into being less scrupulous or “rushed” into reviewing and signing his first statement at the time[note: 58], I agreed with the Prosecution that there is hitherto no evidence to show or suggest that Pek felt “lulled” into being less scrupulous or “rushed” at the time and insofar that Pek is claiming that IO Johnston had “rushed” him by telling Jeffrey/Pek that Pek’s wife was arriving, this was not put to IO Johnston.[note: 59] Hence, until Pek gives evidence, this argument is speculative.

(e)     On Pek’s argument that there remain unresolved questions about how Pay came to record a further statement which so dramatically changed his account of what happened[note: 60], I agreed with the Prosecution that only Pay can explain why he recorded his further statement.

27     For all the above reasons, I found that at the close of the Prosecution’s case, there is some evidence which is not inherently incredible and which satisfies each and every element of each of the 2 charges preferred respectively against Pay and Peck on which they could lawfully be convicted, and I therefore called on them to give their respective defences as required under s 230(1)(j) of the CPC. Both Pay and Pek elected to give evidence for their respective defences, and while Pay has no other witnesses as stated in his Case for the Defence, Pek had called 2 other witnesses for his defence as follows:

S/N

Name

Role

 

1.

Pek Lian Guan

Advisor, Tiong Seng Holdings Ltd (“TSH”)

Pek

2.

Colin Tan

Former Deputy Managing Director,

Tiong Seng Contractors Pte Ltd

(“TSC”) and current Director at

Gammon Construction Limited

DW1

3.

Pek Zhi Kai

Executive Director of TSH and Deputy Managing Director of TSC

DW2



(E)   KEY ISSUES ARISING FROM THE TRIAL FOR THE COURT’S DETERMINATION

28     Having carefully read and considered the voluminous submissions[note: 61] of the parties at the close of the trial comprising more than 1500 pages, I took the view that there are 3 key issues arising from the trial for my determination before I can decide on whether Pay and Pek should be convicted or acquitted of their respective charges. These 3 key issues are as follows:

(a)      Whether the incriminating CPIB statements of Pay and Pek are inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek in that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC?

29     The key authorities on the legal principles and cases governing unreliable statements cited by the Defence are as follows:

(a)     In Muhammad bin Kadar and another v PP [2011] SGCA 32, the Court of Appeal held at [57] to [63] as follows:

“…..in Singapore, the law provides police officers with great freedom and latitude to exercise their comprehensive and potent powers of interrogation in the course of investigations. This means that the evidential reliability of any written statements taken from accused persons rests greatly on the conscientiousness with which the police investigators who conduct the process of examination and recording observe the prescribed safeguards.

58    It also appears to be the case that written statements taken by the police are often given more weight by finders of fact as compared to most other kinds of evidence. This is because formal statements taken by the police have the aura of reliability that comes from their being taken (as would be normally, and correctly, assumed) under a set of strict procedures strictly observed by a trustworthy officer well-trained in investigative techniques. This aura is further enhanced by the admissibility requirement in s 122(5) that the recording police officer must be of the rank of sergeant or above. It is, it may be said, statutorily assumed that such senior police officers are competent and will discharge their obligations conscientiously. All in all, it seems that public policy is in favour of trusting the integrity of the police, and this gives them a certain freedom to conduct their investigations more effectively and efficiently, statement-taking included. However, such an approach comes with certain inherent risks.

59    There is always a small but real possibility that an overzealous police officer who believes that a suspect is guilty will decide, perhaps half-consciously, that strict compliance with the procedural requirements for statement-taking may contribute to a factually guilty offender being let off. He may not go so far as to extract an incriminatory statement by threat, inducement or promise, or a statement that is otherwise involuntary. All that is required for a miscarriage of justice to occur is for such a police officer to record the statement with embellishments, adding nothing more than a few carefully-chosen words to the suspect’s own account. If the statement is not read back or signed soon after by the suspect (with proper interpretation where appropriate), there is no assurance that the statement faithfully reflects what he had actually disclosed. Alternatively, a police officer might simply be indolent, leaving the recording of the statement to well after the examination. His memory of the interview having faded, such an officer might fill in the gaps based on his own views about the suspect’s guilt. Such questionable statements could, standing alone, form the basis for wrongful convictions even for capital offences if an accused, disadvantaged by the lapse of time and memory, is unable to convince the court that he did not say what appears in writing to be his words. The salutary requirements of the CPC and the Police General Orders, especially those requiring statements to be promptly reduced to writing, immediately read back to their maker, and corrected if necessary and signed, are the only prescribed safeguards standing in the way of such an unacceptable possibility.

60     Police investigators are aware when they record statements that they are likely to be tendered as evidence before a court and that there is therefore an uncompromising need for accuracy and reliability. The objective of the relevant provisions in the CPC and the Police General Orders is to ensure that both these twin objectives are met in every investigation. For this reason, as well as what we have articulated earlier, we think that a court should take a firm approach in considering its exercise of the exclusionary discretion in relation to statements recorded by the police in violation of the relevant requirements of the CPC and the Police General Orders (or other applicable legal requirements). This means that the court should not be slow to exclude statements on the basis that the breach of the relevant provisions in the CPC and the Police General Orders has caused the prejudicial effect of the statement to outweigh its probative value.

61     If the Prosecution seeks to admit a statement recorded in breach of the relevant provisions in the CPC and/or the Police General Orders, it will bear the burden of establishing that the probative value of the statement outweighs its prejudicial effect. The Prosecution can discharge this burden if, for instance, some reasonable explanation is given for the irregularity such that the court can find that the probative value of the statement exceeds its prejudicial effect.

62     Statements taken in deliberate or reckless non-compliance (or “flagrant” violation, to adopt the words of Rajendran J in Dahalan ([46] supra) at [85]) in relation to procedural requirements will generally require more cogent explanation from the Prosecution to discharge its burden, as compared to where the irregularities are merely careless or arising from some pressing operational necessity. This would be because the bona fides of a recording police officer who deliberately breaches the requirements or knowingly disregards them would necessarily be more questionable. Further, such conduct should not be encouraged. The court should be wary of accepting any explanation by way of ignorance of the correct procedures, considering that s 122(5) imposes an admissibility requirement that the recording police officer is to be at least of the rank of sergeant (a rank implying a certain level of responsibility and competence). That having been said, the court should always evaluate probative value and prejudicial effect on the facts of each scenario.

63    Where there is a dispute of fact regarding whether the statement was indeed irregularly recorded, or where the Prosecution wishes to adduce evidence to explain an irregularity, a trial-within-a-trial should be held….” (emphasis in bold mine)

(b)     In PP v Dahalan bin Ladaewa [1995] 2 SLR(R) 124 at [78] to [86], where in interviewing the accused, the recording officer had made notes on a piece of paper and some four hours later, in writing up his pocket book, had “expanded” the notes and entered them into his pocket book and thereafter destroyed the paper, the High Court noted that in “expanding” what was said by the accused, the recording officer had used words that were not uttered by the accused and the officer’s confident assertions in court that he was not required to have a pocket book with him and that it was accepted practice to make entries on pieces of paper and transcribe the entries later into the pocket book were held to be untruths. Hence, the High Court held that it would be unsafe to admit in evidence what the accused had allegedly told the recording officer in the statement which was not admitted. (emphasis in bold mine)

(c)     In Parti Liyani v PP [2020] SGHC 187 at [86], the High Court overturned the accused’s conviction as it found that it was “unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33” due to the likelihood of inaccuracies brought about by the recording process. The High Court did not find it necessary to canvass every single inaccuracy in the statement, nor did the High Court need to be satisfied that every single possible inaccuracy was proven before finding the statement unreliable. Instead, the High Court highlighted a handful of examples which showed that the statement was not recorded accurately as follows:

“…..the Judge failed to consider the circumstances under which P33 was recorded, where a reasonable doubt exists as regards the accuracy of the answers in P33. P33 was recorded in English and read to Parti in Bahasa Melayu. This, the Defence submits, renders it conceivable that the particulars of P33 had been misheard or mistranslated.[note: 119] Parti testified that an example of this is at Q14/A14 of P33, where her answer was inaccurately recorded as her having said that she had placed the Pioneer DVD player “into” one of the three boxes, when she had actually placed it “near” the boxes and was not sure if Robin had put it inside the box.[note: 120] While nothing material turns on this alleged error, this is an example of how the mistranslation could have occurred in the statement recording process. Additionally, the existence of obvious errors in Q16 and A17 (ie, missing words or letters) supports the likelihood that IO Amir made errors in accurately recording P33 itself, especially given the fact that the statement was recorded at 1.44am to 5.57am on 4 December 2016.[note: 121] With the likelihood of inaccuracies in the recording of P33 itself, I find that it is unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33.”

(d)     In Chong Hoon Cheong v PP [2022] 2 SLR 778 at [70], the Court of Appeal held that it is necessary first to determine the precise content of the statement and next to determine the intended meaning of that statement where the Court is concerned with the subjective intention of the statement-maker at the time the statement was made, and if there is a reasonable doubt as to either what the accused person actually stated or what the accused person intended to mean when he made such statement, the Court should not place any weight on that statement, simply because it cannot be satisfied as to what was in fact said or meant. (emphasis in bold mine)

(e)     In Raj Kumar s/o Aiyachami v PP and another appeal [2022] SGCA 45 ("Raj Kumar") where the trial judge held that as the offender had a chance to read his voluntary statement, but he did not make any amendments and signed it, and that is evidence that his statement is true, the Court of Appeal disregarded the statement. This case provides a useful illustration of how the above legal principles governing unreliable statements have been applied. The Court of Appeal dealt with the appeal of one of the appellants, Ramadass, who had been convicted under the Misuse of Drugs Act (MDA) for delivering drugs. The case hinged on the admissibility and reliability of several statements made by Ramadass to the Central Narcotics Bureau, which were recorded by Sgt Meena. Ramadass contested the admissibility of his first, second, and third statements (referred to as the "Contested Statements") during his trial. The Court of Appeal recognized that the prosecution's case against Ramadass heavily depended on these statements, stating that "the case against him rests almost entirely on the admissibility and reliability of the Contested Statements." Ramadass’s appeal primarily focused on challenging the accuracy and reliability of these statements. He argued that the statements were not accurately recorded by Sgt Meena and, therefore, could not be relied upon to secure his conviction. The Court of Appeal meticulously examined the reliability of each of the Contested Statements to determine whether they could be used as evidence to uphold Ramadass's conviction. The Court's analysis of these 3 statements which was central to the resolution of the appeal and its findings that they were unreliable and unsafe to convict Ramadass were as follows (emphasis in bold below mine):

(i)       In examining the first statement made by Ramadass, the Court of Appeal scrutinized the inconsistencies in the evidence provided by Sgt Meena, who recorded the statement. Ramadass testified that Sgt Meena had suggested certain words or descriptors for him to use during the recording of his statement. In response, Sgt Meena testified that she used inverted commas in the statement to indicate the exact words and phrases that Ramadass had supposedly used. However, there were other words in the statement that she claimed Ramadass had used, but these words were not marked with inverted commas. The Court of Appeal found this discrepancy problematic, particularly when Sgt Meena was given the opportunity to explain the inconsistency during her re-examination. When questioned about how sure she was that Ramadass had used specific English words, such as "drugs," which were not indicated by inverted commas in the statement, Sgt Meena responded that she was "very sure." Despite this confidence, she admitted that she could not explain why these words were not marked with inverted commas. Additionally, Sgt Meena could not reconcile the timing at which the first statement was supposedly recorded with the entries in her field diary. Given these issues, the Court of Appeal concluded that it was "unsafe to accord [the first statement] significant weight," raising serious concerns about its reliability as evidence.

(ii)       Regarding Ramadass's second statement, he claimed that Sgt Meena had "supplied the words contained" in the statement, rather than accurately recording what he had said. Specifically, Ramadass testified that he did not inform Sgt Meena that the term "jama" meant drugs, a critical detail in the statement. The trial judge observed that Ramadass had the opportunity to amend any incriminating portions of the second statement but chose not to do so. This fact was initially taken as a sign that the statement might be reliable. However, the Court of Appeal took a different view, finding that the second statement was similarly compromised by Sgt Meena’s failure to properly denote the words Ramadass allegedly used, just as in the first statement. Because of these issues, the Court of Appeal determined that it was "impossible to overlook" these defects. Despite agreeing with the trial judge that the second statement was admissible, the Court concluded that it was "unsafe to accord the Second Statement significant weight." This conclusion echoed the Court's concerns about the first statement and further undermined the reliability of the evidence presented against Ramadass.

(iii)       In addressing Ramadass's third statement, the Court of Appeal considered his allegation that the key contents of the statement originated from Sgt Meena rather than from him. Specifically, Ramadass denied having told Sgt Meena that he had brought drugs into Singapore or where the drugs were placed. The trial judge had concluded that the details in the third statement could only have come from Ramadass himself, particularly because he signed the statement without making any amendments. However, Ramadass contended that the scenario presented by the Prosecution was implausible. He pointed out that the entire exchange between him and Sgt Meena was conducted in Tamil, with Sgt Meena consistently referring to "drugs" as "bodei porul." Despite this, the third statement indicated that Ramadass responded using the English word "drugs" each time. The Court of Appeal agreed with Ramadass and found that significant doubts had been raised about the accuracy of the third statement. This skepticism further undermined the reliability of the evidence against Ramadass, contributing to the Court's overall concerns about the validity of the statements used to convict him.

(f)     In Raj Kumar, the Court of Appeal expressed serious concerns about the reliability of the statements recorded by Sgt Meena. The Court noted the "inability of Sgt Meena to explain or address these concerns," which led them to conclude that there was "sufficient doubt as to whether the written record of the statements accurately record and reflect what was said by Ramadass." In its closing observations, the Court of Appeal emphasized the critical importance of accuracy when a case against an accused person hinges on the specific words recorded in a statement, stating that: “Where the case against an accused person turns on the specific words that are reflected in a statement, as is the case here, it is critically important that the court be satisfied as to the accuracy of the statement …” This emphasis underscores the Court's insistence that the reliability of recorded statements must be beyond doubt, especially when those statements form the cornerstone of the prosecution's case. The Court's findings in Raj Kumar highlighted the importance of meticulous and accurate record-keeping by law enforcement officers to ensure the integrity of the judicial process. (emphasis in bold mine)

30     In the present case, the Prosecution’s case primarily rests on the admissions in the incriminating second statement of Pay and the incriminating first statement of Pek to show that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC.[note: 62] The Defence contended that the aforesaid incriminating statements of Pay and Pek are inaccurate, unreliable and unsafe to rely on in the light of the above legal principles and cases governing unreliable statements. Having heard, read and reviewed the evidence and submissions of the parties, I rejected the Prosecution’s submissions[note: 63] and agreed with the Defence as follows:

(a)     In relation to Pay, based on the evidence of Pay and of the recorder of his second statement, IO Chris Lim as well as their respective explanations on the incriminating portions in the statement at the trial (evidence of which have been comprehensively set out in the Defence submissions[note: 64]), I accepted Pay’s submissions that Pay’s second statement as recorded by IO Chris Lim is inaccurate, unreliable and unsafe to rely on in determining the charges against Pay, due mainly to the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process as reflected in the evidence adduced at the trial and highlighted in Pay’s submissions. In the absence of any Prosecution's specific responses on the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process and the inability of IO Chris Lim and the Prosecution to explain or address the concerns over the aforesaid conduct, I found that there was sufficient doubt as to whether the second statement of Pay was accurately recorded and reflected what was said by Pay and I agreed with Pay's submissions in relation to how IO Chris Lim’s conduct rendered Pay’s second statement as recorded by him inaccurate, unreliable and unsafe to rely on in determining the charges against Pay for the reasons which have been summarized together with my views as follows:

(i)       During the trial, IO Chris Lim admitted that he approached the interview with a preconceived notion that Pay had committed some form of offence. However, when he realized that Pay's first CPIB statement did not clearly support this preconceived belief, he attempted to retreat from his earlier position. Despite this, IO Chris Lim acknowledged that there was nothing in Pay's first CPIB statement suggesting that gratification had been given by Pay in exchange for leniency on TSC's projects. Furthermore, he admitted that Pay’s first CPIB statement was "not good enough" to implicate Pay in a corruption offence.[note: 65] In my view, this scenario raises significant concerns about the reliability of Pay's second CPIB statement, particularly given IO Chris Lim's apparent predetermination of Pay's guilt before the statement was recorded.

(ii)       IO Chris Lim's credibility and the objectivity of his statement-taking process come into question due to his contradictory statements regarding the influence of a "hypothesis" provided by the CPIB. Initially, IO Chris Lim tried to distance himself from the idea that he had been provided with any hypothesis by the CPIB, asserting that no such hypothesis was communicated to him. This was likely an attempt to portray his approach to the interview with Pay as unbiased and objective. However, IO Chris Lim later contradicted this claim by admitting that he had indeed been given a hypothesis by a higher-up before he interviewed Pay. [note: 66] In my view, this contradiction undermines the notion of objectivity that IO Chris Lim initially tried to establish as it suggests that he might have approached the interview with a preconceived narrative or expectation, which could have influenced how he conducted the interview and how he interpreted Pay's responses. Further, this admission raises concerns about the reliability of the statement-taking process and whether IO Chris Lim's investigation was genuinely impartial.

(iii)       The testimony of IO Chris Lim reveals significant issues regarding his objectivity and the accuracy of his investigation into Pay's actions, particularly concerning the timing of the second loan. During the proceedings, IO Chris Lim admitted that if Pay had truly acted with ulterior guilty knowledge, it would not have made sense for him to delay the giving of the second loan. He acknowledged that the urgency with which the money was provided would be directly relevant to determining Pay's guilt for the corruption charges he faced. However, when questioned about the specifics in Pay's second CPIB statement, which indicated that Pay took a "couple of days" to extend the second loan to Foo, IO Chris Lim demonstrated that he did not actually know how long it took for Pay to provide the loan, despite previously insisting that he did. This lack of knowledge casts doubt on his earlier assertions and the thoroughness of his investigation. As the facts unfolded, it became clear that Pay had not provided the second loan to Foo even by 27 March 2018, which was well beyond the "couple of days" which IO Chris Lim had initially claimed. Upon realizing this, IO Chris Lim recanted his position, admitting that he should have clarified the timing of the loan more thoroughly. This admission further highlights the lack of objectivity in his investigative approach. Ironically, when asked again whether the timing of the loan was important, IO Chris Lim responded affirmatively, saying, "Oh, definitely."[note: 67] In my view, this response underscores the importance of the timing in assessing Pay's actions, yet it also highlights the inconsistency and lack of precision in IO Chris Lim's investigation. His failure to accurately ascertain and clarify such a critical detail raises serious concerns about the reliability of the evidence gathered and the overall objectivity of the investigation.

(iv)       IO Chris Lim's approach to potentially exculpatory facts further underscores his lack of objectivity in the investigation. When questioned about whether Pay had informed him that he "would not have given a loan for gambling debts, if it had been Foo’s... because his own brother-in-law had suffered much from gambling", IO Chris Lim responded that he "[did] not know" if Pay had made this statement. However, he did not deny the possibility that Pay might have told him this. This ambiguity is concerning, particularly because IO Chris Lim himself admitted that such a statement would have been relevant to understanding Pay's true motivations for giving the loans. If Pay had indeed made this remark, it could suggest that his actions were motivated by personal reasons unrelated to any corrupt intent, which would be crucial to assessing his culpability. IO Chris Lim’s failure to recall or properly document such a significant detail reflects a myopic approach to the investigation. By not adequately considering or recording facts that could potentially exonerate Pay, IO Chris Lim appears to have overlooked important context that might have altered the interpretation of Pay’s actions. This selective attention to facts that support a preconceived narrative, while neglecting those that might be in Pay’s favour, raises serious questions about the fairness and thoroughness of the investigation.[note: 68] In my view, such an approach not only undermines the reliability of the evidence collected but also casts doubt on the integrity of the investigative process, as it suggests that IO Chris Lim may have been biased toward confirming Pay's guilt rather than objectively assessing all relevant information.

(v)       IO Chris Lim's approach in how he dealt with Pay's suggested amendments raises serious concerns. According to Pay's testimony, the process he experienced with IO Tay, who recorded his first CPIB statement, was markedly different and more transparent than the process he went through with IO Chris Lim for the second statement. With IO Tay, Pay was invited to make amendments directly on his first CPIB statement, and IO Tay explained that Pay could sign next to these amendments, ensuring that the changes were clear and attributable to Pay. This approach promoted transparency and allowed Pay to verify that his amendments were accurately reflected. In contrast, IO Chris Lim handled Pay's amendments to the second CPIB statement in a much less transparent manner. When Pay marked up his second statement with the changes he intended to make, IO Chris Lim took the statement to another room, retyped it in his own words (which appears similar to PP v Dahalan bin Ladaewa where the recording officer had used words that were not uttered by the accused), and then returned it to Pay. IO Chris Lim claimed that this process was done for the sake of "neatness," and while there is no legal requirement for an IO to record a statement word-for-word as held in Leck Kim Koon v PP [2022] SGCA 42, it appears that this method was actually designed to confuse and disorient Pay. This practice of retyping the statement without allowing Pay to see how or where his amendments were incorporated raises significant concerns. Pay was left without any clear indication of how IO Chris Lim had integrated his changes, making it impossible for Pay to verify whether his amendments were accurately reflected. This lack of transparency could prevent Pay from identifying or distinguishing the changes he made from those made by IO Chris Lim. It also meant that any omissions or alterations by IO Chris Lim could later turn out to be consequential, without Pay having any opportunity to challenge or correct them.[note: 69] In my view, the overall picture suggests that IO Chris Lim's approach was not merely about "neatness" but was instead a deliberate attempt to obscure the process and potentially manipulate the content of the statement. This unscrupulous handling of Pay's second CPIB statement undermines the integrity of the evidence and raises serious questions about the fairness and reliability of the investigative process. It suggests that IO Chris Lim may have intentionally muddled Pay's understanding and control over his own statement, which could have significant implications for the accuracy of the recorded evidence and the outcome of the case.

(vi)       IO Chris Lim initially suggested that Pay had independently arrived at the phrase "more than friendly loans" without any prompting. However, he later admitted uncertainty about whether he confronted Pay with specific messages that led to this admission or if Pay came to this conclusion on his own. When pressed to identify the specific messages that may have prompted Pay to realize his position was unsustainable, IO Chris Lim could not point to any messages that Pay had not already explained in his first CPIB statement. The only exception was a conversation between Pay and Pek about a "tricky" second staff loan, which Pay had already clarified was innocuous. IO Chris Lim's claim that Pay used the exact phrase "more than friendly loans" is contradicted by his own testimony during his EIC, where he admitted that paragraph [32] of Pay's second CPIB statement was a paraphrase rather than a verbatim account of what Pay said. During cross-examination, it was suggested to IO Chris Lim that he had introduced the phrase "more than friendly loans" based on a misleading premise, that because the loans were substantial sums that would not typically be exchanged between friends, they must be considered "more than friendly". IO Chris Lim denied this suggestion but did not provide a satisfactory explanation to refute it.[note: 70] In my view, IO Chris Lim's evidence is inconsistent and possibly misleading with no concrete evidence to support his assertion that Pay independently described the loans as "more than friendly."

(vii)       IO Chris Lim demonstrated a lack of objectivity during the investigation, particularly in how he recorded Pay’s second CPIB statement. He had a "tunnel-vision" approach, focusing solely on evidence or aspects of the case that suggested Pay's guilt. He emphasized certain aspects of the case that he believed indicated there was “more than meets the eye,” implying that these aspects suggested Pay's guilt. However, at the same time, he ignored other critical elements of the investigation that could have potentially indicated Pay’s innocence. IO Chris Lim himself acknowledged there were aspects of the investigation that could have been significant in potentially relieving Pay of guilt, yet he chose not to consider them.[note: 71] In my view, IO Chris Lim’s conduct during the investigation, characterized by selective focus and a lack of impartiality, shows a clear lack of objectivity which could have affected the fairness and thoroughness of the investigation into Pay's case and undermines the integrity of the investigation process.

(viii)       IO Chris Lim had a "blatant disregard for the truth" when recording Pay's second CPIB statement. He provided false explanations to an exhausted Pay regarding the meaning of the words recorded in his statement. His approach was mischievous and conveniently selective as he selectively recorded only those parts of Pay's statements that could be construed as incriminating while ignoring or omitting exculpatory evidence. His actions appeared to be driven by a desire to secure a conviction "at all costs", regardless of the actual truth or fairness of the process, by engaging in underhanded practices, such as making "surreptitious or ambiguous amendments" to Pay’s statement in a manner that was difficult for Pay to notice or contest, especially after IO Chris Lim provided misleading explanations about any ambiguities in the statement. This could have created a situation where Pay unknowingly agreed to statements that were not fully accurate or reflective of his intended meaning.[note: 72] As held by the Court of Appeal in Chong Hoon Cheong v PP, if there is a reasonable doubt as to either what the accused person actually stated or what the accused person intended to mean when he made his statement, the Court should not place any weight on that statement, simply because it cannot be satisfied as to what was in fact said or meant. In this regard, I took into account that in Parti Liyani v PP, the High Court had overturned the accused’s conviction as it found that it was “unsafe to convict Parti primarily based on her “admission” based on Q18/A18 of P33” due to the likelihood of inaccuracies brought about by the recording process.

(ix)       As pointed out by Pay’s counsel, the Prosecution's stance that the CPIB officers, IO Johnston Kan and IO Chris Lim, had no reason to frame Pay, and that their evidence should be given more weight than Pay’s is an oversimplification and an attempt to sidestep addressing the possibility that the CPIB officers as their witnesses may have been dishonest in their testimonies or biased in their investigation and court testimony. The Prosecution's stance overlooks a more nuanced understanding of the situation. The truth does not necessarily require that IO Johnston Kan and IO Chris Lim had a specific intention to frame Pay. Rather, the possibility exists that these officers, though not explicitly intending to frame Pay, were biased or, as the Court of Appeal in Kadar put it, "overzealous" in their investigation. This overzealousness could explain the officers' conduct without requiring a deliberate intent to frame anyone. IO Johnston Kan and IO Chris Lim could have developed a biased perspective during their investigation and formed a hypothesis that the loans indicated ill intent or wrongdoing, leading them to selectively interpret evidence or conduct the investigation in a manner that supported their preconceived notions.[note: 73]

(x)       As submitted by Pay’s counsel, the procedural safeguards were meaningless in the face of IO Chris Lim’s conduct based on his own evidence which unfortunately demonstrated him to be happy to stretch the truth and the Prosecution has offered no explanations for his conduct.[note: 74]

(b)     As mandated by the Court of Appeal in Kadar at [61] to [62], the Prosecution bears the burden of establishing that the probative value of Pay’s second CPIB statement outweighs its prejudicial effect and can discharge this burden by giving some reasonable explanations for the above concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process, but I found that the Prosecution has failed to do so as the Prosecution’s reply submissions at [26] to [44] as well as its oral submissions on 14 and 19 August 2024 did not specifically address the concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process.

(c)     Hence, I found that IO Chris Lim’s aforesaid conduct rendered Pay’s second CPIB statement inaccurate and unreliable as they are clearly incompatible with the “uncompromising need for accuracy and reliability” as mandated by the Court of Appeal in Kadar (at [60]) with many inconsistencies and ambiguities in the aforesaid statement relied upon in the Prosecution’s case, and it would be improper for this Court to resolve those doubts in the Prosecution’s favour, particularly in the absence of specific explanations from the Prosecution on IO Chris Lim’s aforesaid conduct in the statement recording process.

(d)     As regards Pek, based on the evidence of Pek and of the recorder of his first statement, IO Jeffrey as well as their respective explanations on the incriminating portions in the statement (evidence of which have been comprehensively set out in Pek’s submissions[note: 75]), I accepted Pek’s submissions that Pek’s statements, particularly his first Statement, as recorded by IO Jeffrey are inaccurate, unreliable and unsafe to rely on in determining the charges against Pek, due mainly to the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process as reflected in the evidence adduced at the trial and highlighted in Pek’s submissions.[note: 76] In the absence of any Prosecution's specific responses on the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process, and the inability of IO Jeffrey and the Prosecution to specifically explain or address the concerns over the aforesaid conduct, I found that there was sufficient doubt as to whether the Pek’s aforesaid statements were accurately recorded and reflected what was said by Pek and I agreed with Pek's submissions in relation to how IO Jeffrey’s conduct rendered Pek’s aforesaid statements as recorded by him inaccurate, unreliable and unsafe to rely on in determining the charges against Pek for the reasons which have been summarized together with my views as follows:

(i)       The first statement given by Pek, which was recorded by IO Jeffrey, contains several self-incriminating remarks that were repeated 4 times in the document. Such repetition is not a faithful representation of what Pek actually said during the interview but rather indicates an attempt to emphasize Pek's culpability. This is further supported by IO Jeffrey's admission under cross-examination that he used a cut-and-paste method to compile the statement, and it did not matter to him whether Pek in fact repeated himself in that manner, implying that the repetition might not reflect the true nature of Pek's interview responses.[note: 77] In my view, there would be no rational reason for Pek to incriminate himself multiple times in the same statement, reinforcing the idea that the statement lacks reliability.

(ii)       The reliability of Pek’s 13 November 2019 Letter is demonstrated by both its contents and the surrounding context in which it was created. The evidence provided by IO Jeffrey regarding the process of recording Pek’s first statement supports the truthfulness of Pek’s explanation in the 13 November 2019 Letter about how the misleading portions of Pek’s first statement arose. During cross-examination, IO Jeffrey admitted that he asked Pek numerous questions during the first interview and used a method of combining Pek’s answers to different questions into a single narrative. IO Jeffrey further acknowledged that in doing so, some of Pek’s responses were merged and repackaged in a way that omitted certain parts of what Pek actually said. In fact, IO Jeffrey conceded that this method specifically led to the recording of the second and third sentences of paragraphs [9] and [12] in Pek’s first statement as they appear, indicating that the recorded statement may not accurately reflect Pek's actual responses.[note: 78]

(iii)       Pek’s first statement appears to be more a product of IO Jeffrey's authorship than an accurate account of what Pek actually communicated. This is because IO Jeffrey took several liberties in constructing the statement. He substituted Pek's words as he deemed appropriate, rearranged the order of Pek's responses, combined and repackaged answers to separate questions, and chose to omit significant context that could have provided clarity to Pek's answers recorded in the statement. Furthermore, IO Jeffrey compounded these inaccuracies by copying and pasting sections of the statements that appeared to be more incriminating, thereby skewing the overall content to reflect a more incriminating narrative than what Pek might have actually conveyed.[note: 79] In my view, while there is no legal requirement for an IO to record a statement word-for-word as held in Leck Kim Koon v PP [2022] SGCA 42, the substitution of Pek’s words by IO Jeffrey appears similar to PP v Dahalan bin Ladaewa where the High Court noted that in “expanding” what was said by the accused, the recording officer had used words that were not uttered by the accused.

(iv)       IO Jeffrey confirmed twice during his testimony that he understood the meaning of the word "paint"—specifically, that it implied he had suggested a "wrong account" of what Pek had told him in the statement.[note: 80] In my view, this acknowledgment indicates that IO Jeffrey was aware that he was not providing an accurate or truthful representation of Pek’s words. Furthermore, it suggests that IO Jeffrey attempted to "frame" Pek by deliberately crafting the statement in a way that would present a false or misleading account of the events, casting further doubt on the reliability and integrity of Pek's first statement.

(v)       By IO Jeffrey's own admission, he drafted Pek’s first statement with the intention to "frame" Pek, focusing almost exclusively on recording information that supported Pek’s culpability rather than objectively establishing the facts of the case. IO Jeffrey crafted Pek’s first statement to create specific impressions about Pek, such as portraying him as the originator of a corrupt scheme. He selectively recorded details that would imply Pek's guilt, instead of providing a balanced and factual account. Additionally, IO Jeffrey's approach appears to have been aimed at influencing Pek’s memory of events, further undermining the reliability of Pek’s first statement as an accurate reflection of what was said during the interview.[note: 81]

(vi)       IO Jeffrey admitted in Court, during cross-examination, that he drafted key parts of Pek’s first statement, particularly the fourth sentence of paragraph [9], in a way that created the impression that Pek was the one who came up with the idea for the taking of Staff Loans. This admission indicates that IO Jeffrey intentionally worded portions of the statement to portray Pek as the initiator of the scheme, rather than accurately documenting what was actually communicated by Pek during the interview.[note: 82] In my view, this further calls into question the reliability and objectivity of Pek’s first statement.

(vii)       IO Jeffrey further conceded that, during the recording of Pek’s first statement, he had already predetermined that the Staff Loans were being used to conceal TSC’s involvement in the Loans to Foo. He admitted to drafting Pek’s first statement in a manner that suggested Pek had orchestrated this process.[note: 83] In my view, such an approach of IO Jeffrey in the statement recording raises serious doubts about the reliability of the statement.

(viii)       Pek’s first interview was conducted in a way that was intended to create a false sense of security for Pek, discouraging him from thoroughly reviewing his first statement. This approach affected Pek, leading him to rush through the review of his statement. Pek placed his trust in IO Jeffrey, relying on his perceived professionalism and assuming that the statement accurately reflected their conversation. As a result, Pek signed the statement without fully understanding its implications or realizing the potential personal repercussions.[note: 84] In my view, this further undermines the reliability of Pek's first statement, as it suggests Pek may not have been aware of the incriminating content or its consequences.

(ix)       IO Jeffrey testified that he took no notes during his interview of Pek prior to the formal recording of Pek’s first statement, despite this interview phase lasting several hours. According to IO Jeffrey’s evidence, at least five hours elapsed between the start of Pek’s first interview (around 9:30 am) and the beginning of the actual recording of Pek’s first statement (around 2:50 pm). Without any notes taken during the interview, IO Jeffrey later typed out Pek’s first statement on a laptop during the recording phase, relying solely on his memory of what was said. As Pek testified, IO Jeffrey drafted the statement from memory after 2 to 3 hours of conversation and asked only a few clarificatory questions while doing so. Indeed, IO Jeffrey admitted that when he drafted Pek’s first statement, he could not remember everything Pek said during the interview.[note: 85] In my view, this suggests that IO Jeffrey may have prioritized the CPIB’s needs over ensuring the accuracy of the statement as a faithful record of Pek's actual words during the interview. It is highly unlikely that anyone could accurately recall, without notes, everything said in an interview of several hours—along with the sequence of questions and answers—given the complexity and length of such a conversation. It would appear that IO Jeffrey’s conduct of not taking any notes is worse than that of the recording officer in PP v Dahalan bin Ladaewa where in interviewing the accused, the recording officer had made notes on a piece of paper and some four hours later, in writing up his pocket book, had “expanded” the notes and entered them into his pocket book and thereafter destroyed the paper.

(x)       Two significant weaknesses in the approach adopted by IO Jeffrey in recording a statement needed to be highlighted despite him been a trained law enforcement officer. The first point of failure is IO Jeffrey's dependence on his own memory to recall what Pek said during the interview. Memory can be fallible, especially over time or when dealing with multiple interviews and statements. This reliance increases the risk of errors or omissions in the recorded statement. The second point of failure is Pek's ability to comprehend the statement as recorded and to correct any inaccuracies. This assumes that Pek is fully aware of what was discussed, understands the statement's wording, and is capable of identifying and correcting mistakes. However, comprehension issues or stress during the interview can impact Pek’s ability to effectively review and correct the statement. A more effective and reliable method for ensuring the accuracy and comprehensiveness of the statement would have been for IO Jeffrey to take notes directly during the interview. This would allow for a more accurate capture of Pek's words and reduce reliance on memory. Even IO Jeffrey admitted that taking notes is generally expected when accuracy is a priority. However, IO Jeffrey's justification for not taking notes was simply that it was "not [his] practice." This is an insufficient explanation, as it does not address why this practice is in place, nor does it provide a rationale for deviating from what would be considered a more reliable method of documentation.[note: 86] In my view, the lack of a substantive explanation from IO Jeffrey raises concerns about the integrity and reliability of the statement-taking process as such important procedural questions cannot be dismissed with non-answers or unsubstantiated practices, as IO Jeffrey had done.

(xi)       The exchange during cross-examination reveals serious concerns about the methods used by IO Jeffrey in recording Pek's statement. Initially, IO Jeffrey testified that he believed it was acceptable to include inaccuracies in the statement, provided the subject had the opportunity to review and correct them. This approach fundamentally shifts the responsibility for ensuring the accuracy of the statement from the recording officer to the subject. Upon repeated questioning, IO Jeffrey changed his response, stating that it was important to record an accurate statement independently of the subject’s review. This sudden shift in his stance under cross-examination suggests either a lack of understanding of proper procedures or an attempt to avoid admitting to improper practices. Despite his altered testimony, the evidence points to the fact that IO Jeffrey's approach was heavily reliant on Pek to identify and correct inaccuracies, as he did not take any contemporaneous notes during a lengthy multi-hour interview. Moreover, IO Jeffrey admitted that he did not consider it important to capture the exact words used by Pek during the interview. Instead, he took the liberty of drafting Pek’s statement in his own words, introducing phrases such as “vividly remembered” that Pek neither understood nor used. This phrase, in particular, directly contradicted what Pek had actually said during the interview, further indicating a significant misrepresentation of Pek’s statements.[note: 87] In my view, this practice of drafting statements without directly quoting the subject or even accurately reflecting their testimony undermines the reliability and accuracy of the recorded statement. It shows a disregard for maintaining the integrity of the subject's words and intentions. The reliance on the subject to catch and correct such errors is not only an unfair burden but also a method that could lead to significant injustices, particularly if the subject does not fully understand the nuances of the language used or the implications of certain phrases.

(xii)       IO Jeffrey's decision to omit significant contextual information from Pek's first statement raises substantial concerns about the statement's accuracy and reliability. By leaving out the context that surrounded Pek's answers, IO Jeffrey effectively removed the framework necessary for an objective reader to fully understand what led to those answers.[note: 88] In my view, context is crucial in accurately conveying a person's statements, as it provides background, clarifies meaning and prevents misinterpretations. Without the surrounding circumstances, an objective reader is left without a clear understanding of the motivations, reasoning, or specific situations that prompted Pek's responses. This lack of context can lead to a distorted or misleading representation of what Pek actually meant or intended to convey during the interview.

(xiii)       The evidence presented in Pek’s submissions raises significant concerns that Pek’s first statement does not accurately reflect what Pek communicated during the interview and the Prosecution’s interpretation of Pek’s first statement appears to disregard Pek’s subjectively intended meaning, contrary to the guidance provided by the Court of Appeal in Chong Hoon Cheong v PP. [note: 89] The core issue lies in the manner in which IO Jeffrey, as the recording officer, documented Pek's first statement. The statement contained numerous inaccuracies that stem from IO Jeffrey’s own phrasing and embellishments which are significant because they alter the true meaning of what Pek intended to convey. Simply allowing Pek the opportunity to review and sign the statement does not automatically render the document accurate or reliable, particularly when the discrepancies are interwoven with the recording officer's wording choices, which Pek may not have fully understood or noticed. Pek’s failure to detect and correct these inaccuracies highlights the problematic nature of relying solely on the subject's review to ensure the accuracy of a statement. [note: 90] In my view, it is not enough to presume reliability based on the fact that an accused person reviewed and signed the statement, especially when the accused may not have been fully aware of the nuanced changes or errors introduced by the recording officer. This is particularly pertinent in cases where the subject may be under stress, confused by complex or unfamiliar language, or otherwise disadvantaged in identifying and correcting inaccuracies. Therefore, I found that Pek’s first CPIB statements, as drafted by IO Jeffrey, cannot be taken at face value as a reliable record of Pek’s testimony.

(xiv)       The probative value of Pek’s first CPIB statement is severely undermined by the way in which it was drafted. It appears that the statement was constructed primarily for prosecutorial convenience rather than as an accurate reflection of what Pek actually said. This issue is exacerbated by Pek’s trust in IO Jeffrey, whom he believed was recording his statements faithfully. During cross-examination, IO Jeffrey admitted that he attempted to “frame” Pek when drafting Pek’s first statement. This choice of words suggests an intention to portray Pek in a manner that could imply guilt rather than providing an impartial and objective account of the interview. Furthermore, IO Jeffrey’s approach included embellishing and inserting his own words into Pek’s statements, deviating from the actual language and context of Pek's responses. Instead of seeking to uncover the facts objectively, IO Jeffrey’s actions reveal a continued effort to highlight Pek’s culpability, even when drafting Pek’s second statement. This consistent focus on proving Pek’s guilt, rather than accurately recording the facts, demonstrates a bias that undermines the reliability and credibility of the statements. The evidence shows that factual accuracy was not IO Jeffrey’s priority; rather, his primary aim was to create material that would support a preconceived belief in Pek’s culpability.[note: 91] In my view, the deliberate framing and embellishment in the statements suggest that IO Jeffrey was more concerned with crafting a narrative that favoured the Prosecution's case.

(xv)       The issues that compromised the integrity of Pek’s first statement were also evident in the recording of Pek’s second statement. IO Jeffrey continued his practice of paraphrasing Pek’s words rather than accurately documenting what Pek said during the second interview. This paraphrasing reflects a continued lack of fidelity to Pek's actual words, which raises questions about the accuracy and reliability of the recorded statements. Moreover, IO Jeffrey took the questionable step of copying portions of Pek’s first statement into the second statement, even though Pek did not request or authorize this during the second interview.[note: 92] In my view, this act suggests a disregard for the unique context and content of each interview, as it introduces elements from a previous statement that may not be relevant or accurate in the context of the second interview. By doing so, IO Jeffrey effectively conflated the two statements, potentially creating a distorted account of Pek’s testimony.

(xvi)       As submitted by Pek’s counsel, the concerns articulated by the Court of Appeal in Kadar at [59] about the "real possibility" of an "overzealous police officer" compromising the integrity of a statement have manifested significantly in Pek’s case. The evidence indicates that IO Jeffrey, in his role as the investigating officer, exemplified the very conduct that the Court of Appeal warned against. IO Jeffrey's actions align closely with the concerns outlined in Kadar. He recorded Pek’s CPIB statements with "embellishments," adding his own carefully selected words to Pek’s account, rather than faithfully documenting what Pek actually stated. This selective phrasing suggests an intent to shape the narrative in a way that could imply Pek’s guilt, rather than objectively capturing Pek's statements as they were given. Furthermore, IO Jeffrey chose to delay the recording of Pek’s first statement until well after the initial examination. This delay in recording statements can introduce substantial risks of inaccuracy, especially when relying on memory. The lapse of time between the interview and the formal recording of the statement meant that IO Jeffrey’s recollection of the interview had likely faded. In such circumstances, he filled in the gaps based on his own perceptions and beliefs regarding Pek’s guilt, rather than on an accurate recollection of the facts as presented by Pek. The practice of embellishing statements, delaying their recording, and then reconstructing them from memory with added subjective interpretations raises serious questions about the reliability of the statements. IO Jeffrey’s approach appears to align more with a predetermined belief in Pek’s culpability rather than a neutral investigation into the facts. The “real possibility” of bias and manipulation in the statement-taking process, as warned by the Court of Appeal in Kadar, has thus been realized to an alarming degree in Pek’s case.[note: 93] In my view, IO Jeffrey’s conduct reflects an overzealous approach that compromised the integrity of Pek’s statements, further undermining their probative value.

(xvii)       Given the circumstances surrounding the recording of Pek’s CPIB statements by IO Jeffrey, it is evident that there can be "no assurance that the [CPIB] statement[s] faithfully reflected what [Pek] had actually disclosed" during the CPIB interviews. The concerns about the accuracy and reliability of these statements are substantial, especially when considering the various issues such as embellishments, paraphrasing, and the insertion of IO Jeffrey’s interpretations rather than Pek’s actual words. As pointed out by Pek’s counsel, the similarity between this case and the situation forewarned by the Court of Appeal in Kadar about the risks of overzealous officers compromising the integrity of statements appears to have materialized in the present case where the burden has unjustly shifted to Pek to “convince the court that he did not say what appears in writing to be his words.” This situation places an unfair and onerous responsibility on Pek to disprove the accuracy of statements that were not recorded in good faith or with the necessary attention to detail and truthfulness. This aligns with the Court of Appeal’s warning in Kadar at [59], where they cautioned against scenarios where the suspect must prove that the statement, as written, does not accurately reflect their actual disclosures.[note: 94]

(e)     As mandated by the Court of Appeal in Kadar at [61] to [62], the Prosecution bears the burden of establishing that the probative value of Pek’s CPIB statements, particularly his first statement, outweighs their prejudicial effect and can discharge this burden by giving some reasonable explanations for the above concerns raised by Pek over the conduct of IO Jeffrey as the CPIB officer involved in the statement recording process, but I found that the Prosecution has failed to do so as the Prosecution’s reply submissions at [26] to [44] as well as its oral submissions on 14 and 19 August 2024 did not specifically address the concerns raised by Pay over the conduct of IO Chris Lim as the CPIB officer involved in the statement recording process.

(f)     Hence, I found that IO Jeffrey’s aforesaid conduct rendered Pek’s CPIB statements, particularly his first statement, inaccurate and unreliable as they are clearly incompatible with the “uncompromising need for accuracy and reliability” as mandated by the Court of Appeal in Kadar (at [60]) with many inconsistencies and ambiguities in the aforesaid statement relied upon in the Prosecution’s case, and it would be improper for this Court to resolve those doubts in the Prosecution’s favour, particularly in the absence of specific explanations from the Prosecution on IO Jeffrey’s aforesaid conduct in the statement recording process.

31     For all the above reasons, I found that the second CPIB statement of Pay and Pek’s statements, particularly his first statement, are inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek in that Pay told Pek he wanted to extend the Loans because Foo might otherwise cause problems for TSC in relation to the T220 Contract, and despite his misgivings, Pek was eventually convinced by Pay and agreed to extend the Loans to Foo so that Foo would not cause problems for TSC.

(b)    Whether Foo’s evidence as the recipient on his own mens rea and the mens rea of Pay and Pek as the givers to the alleged corrupt transactions is relevant, and if so, whether the Prosecution is bound to accept his evidence as truthful, and whether his evidence is consistent with the evidence of Pay and Pek that the Loans were given innocently and not corruptly so as to prove that there is no corrupt element and no corrupt intention in the aforesaid transactions?

32     The key case authorities cited by Pek on whether the Prosecution is generally bound by the evidence of its own witnesses which comports with the Defence’s case are as follows:

(a)     In Baker, Samuel Cranage and another v SPH Interactive Pte Ltd [2022] SGHC 238 at [30] where the plaintiffs had subpoenaed a witness and never sought to impeach his evidence as hostile, the High Court held that the plaintiffs were bound to accept his evidence as truthful, as a party is generally required to accept the truthfulness of its own witness unless the witness is impeached in accordance with s 157 of the Evidence Act.

(b)     In CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2021] 4 SLR 883, the High Court noted that at common law, a party may not attack the credibility of its own witness, and explained the rationale (at [28]) as follows:

“This common law rule is given statutory expression in Section 156 of the Evidence Act (Cap 97, 1997 Rev Ed) (see PP v BAU [2016] 5 SLR 146 at [24]). The reason for the rule is that a party who calls a witness at trial is deemed to put the witness forward as a witness of truth. The party accordingly vouches to the court for the honesty of the witness (see Alexander v Gibson (1811) 2 Camp 555). A party cannot resile from this and discredit its own witness unless specific conditions are met. The rule places a salutary burden on a party to choose its witnesses carefully.” [Emphasis added.]

(c)     The application of the above legal principles to the Defence’s case that the Court should ascribe greater weight to the evidence of a Prosecution witness whose credit has not been impeached and whose evidence corroborates the Defence’s case can be seen in the High Court case of Chen Jian Wei v PP [2002] 1 SLR(R) 620 (“Chen Jian Wei”) relied upon by Pek[note: 95] where the accused was charged with rioting and his primary defence was that he was not an active participant in the assault. At his trial, the Prosecution called nine witnesses, but only one Kenny insisted that the accused was not an active assailant. The Defence only put the accused on the stand where he testified that he was not an active assailant. The Prosecution did not apply to impeach Kenny’s credit, but the trial judge held that Kenny had fabricated his evidence, and that the accused’s credit was impeached on the basis of material inconsistencies in his long statement and oral testimony, and he was therefore an active assailant and convicted him. On appeal, the trial judge’s decision was overturned by Yong CJ who emphasized that great weight should be given to Kenny's testimony since the Prosecution had not impeached his credit and the inconsistencies in the accused's long statement and oral testimony were not material enough to impeach his credit as the court must evaluate the evidence in its entirety, distinguishing between what aspects are true and what should be disregarded. Yong CJ found that certain aspects of the accused's testimony were consistent with the evidence of the Prosecution’s witnesses and the Court should attribute greater weight to the aspects of the Defence’s evidence that is consistent with the evidence of the Prosecution’s witness, and held that “the [accused] as well as Kenny provided firm exculpatory evidence that the [accused] was not involved in assaulting” the victim.

33     The key case authorities cited by the parties on the relevance of the mens rea of the recipient and giver in an alleged corrupt transaction are as follows:

(a)     In Abdul Aziz bin Mohamed Hanib v PP [2022] SGHC 101 at [118], the High Court stated as follows:

“….Where a charge is framed against the giver, it is the giver's intention that is crucial. Conversely, where a charge is framed against the recipient, it is the recipient's intention that is paramount…..Ultimately, the inquiry into whether the mens rea elements are satisfied hinges on whether the accused in question gave or received gratification as an inducement or reward knowing or believing it to be for a corrupt purpose (ie, with dishonesty). In order to evaluate this, the court may have regard to all the surrounding circumstances - for instance, evidence from the recipient - when determining the guilt of the giver, and vice versa……”(emphasis in bold added)

(b)     In Tey Tsun Hang v PP [2014] SGHC 39 at [15], the High Court stated as follows:

“15     Where a charge is made against the recipient, the question is also whether the recipient possessed a criminal intent, also known as the mens rea. The second to fourth elements set out at [12] concern the mens rea. In this respect, the intention of the recipient is paramount: see Yuen Chun Yii v PP [1997] 2 SLR(R) 209 (“Yuen Chun Yii”) at [69]–[70]. However, evidentially, the intention of the giver is also important as it sheds light on the recipient’s mens rea. Thus, the context of the gift is important. In Yuen Chun Yii, the court found that the nature of the relationship between the recipient and the giver, as well as the apparent intention of the giver, was part of the context which allowed it to make a finding that the recipient could not have had the necessary mens rea.” (emphasis in bold added)

(c)     In PP v Leng Kah Poh [2014] SGCA 51 at [24], the Court of Appeal stated as follows:

“24    Taking the cases and authorities cited above together, the paradigm of corruption under s 6(a) brings to fore the characterisation of the gift as being intrinsically tied to the third party’s intention of giving the gift for the purpose of obtaining a benefit conferred by the agent at the expense of the principal’s interest. In the prosecution of the agent under s 6(a), the intention of the third party would inform the presence of an objective corrupt element in the transaction and the agent’s subjective guilty knowledge. The third party’s intention, or ulterior motive, is to be considered not only from the third party’s point of view but also from the agent’s (see Chan Wing Seng at [41] in relation to the third party; and Yuen Chun Yii at [93] in relation to the agent).

34     Having regard to the above case authorities that the Prosecution is generally bound to accept as truthful the evidence of its own witnesses which comports with the Defence’s case, and on the relevance of the mens rea of the recipient and giver in a corrupt transaction, on both of which there were no contrary authorities cited and submissions made by the Prosecution, I agreed with Pek’s submissions[note: 96] that having chosen not to impeach Foo, the Prosecution is bound to accept the truthfulness of Foo’s evidence which has not been contradicted by other evidence.

35     I accepted the Defence’s reliance on Foo’s testimony which accords with the evidence of Pay and Pek[note: 97] that the Loans were given innocently and not corruptly. Based on Foo’s evidence regarding the Loans he received from Pay as highlighted in Pek’ submissions[note: 98], Foo consistently maintained that he had no corrupt intent when he requested and received the Loans and did not believe Pay or Pek had any corrupt intent either. Foo testified that there was no expectation of favours in exchange for the Loans, which were extended purely on the basis of friendship. Throughout the trial, Foo emphasized that he never viewed the Loans as bribes, nor did he believe Pay expected any favours or benefits in return. According to Foo, at no point did Pay request any favours, and Foo did not believe that Pay or Pek acted corruptly in relation to the Loans. Foo had even clearly and specifically testified that unlike Pay and Pek, in some or possibly one of the four groups of co-accused who lent money to him, they expected Foo to give them information when they asked him, and Foo also never even felt that those meals and karaoke sessions which he attended so infrequently, as compared to the very frequent invitations, were modes of Pay and Pek trying to groom him, as contended by the Prosecution. Foo stated that he was not saying this because Pay and Pek were his friends, but because of how he had seen, before he was arrested, the different behaviours of those co-accused who lent money to him and expected Foo to give them information when they asked him, unlike Pay and Pek. As pointed out by Pek’s counsel, Foo was completely unequivocal about the innocence of Pay and Pek based on his aforesaid testimony.

36     I agreed with Pek’s submissions that Foo’s aforesaid evidence is thoroughly consistent with the Defence’s case and the evidence of Pay and Pek that the Loans were given innocently and not corruptly as highlighted in Pek’s submissions[note: 99] as follows:

(a)     Pay testified that the Loans were extended as personal loans, intended to help Foo as a friend and out of goodwill, rather than to benefit TSC. Pek similarly testified that he did not lend money to Foo with the intention of benefiting TSC. He was clear that TSC was not the ultimate beneficiary of the Loans, and TSC did not provide any loans to Foo.

(b)     Pay testified that he never offered or promised any benefits to Foo in exchange for Foo showing favour to him or TSC. He emphasized that he did not ask for any favours from Foo in return for the Loans and did not believe that Foo would feel indebted to him because of the Loans. Pay also confirmed that Foo did not give or attempt to give him any favours. Pek testified that he did not perceive Pay as wanting any favour from Foo and was "quite sure" that Pay had no intention of obtaining any benefits from Foo.

(c)     Pek testified that he never suggested or implied to Pay that Foo should be "groomed" to act in favour of TSC’s benefit. Pek was clear that he had no intention of obtaining any benefits from Foo. He also testified that the idea of "grooming" Foo for either his own or TSC's benefit never crossed his mind, and he did not believe that Pay had any such intention either.

(d)     Pay testified that he had no corrupt intent in extending the Loans to Foo. Similarly, Pek testified that he did not intend for the two Staff Loans to be used as a means to induce Foo to advance TSC's business interests. Pek also made it clear that he did not intend to help Pay bribe Foo in any way.

37     I agreed with Pek’s submissions[note: 100] that Foo’s aforesaid evidence undermines the Prosecution’s case, but the Prosecution failed to impeach Foo or challenge his credibility as it was never put to Foo that he was being untruthful or even difficult with the Prosecution on this key issue of his own mens rea as well as the mens rea of Pay and Pek. Applying the above legal principles that the Court should ascribe greater weight to the evidence of a Prosecution witness whose credit has not been impeached and whose evidence corroborates the Defence’s case, I accepted Pek’s submissions[note: 101] that this Court should ascribe greater weight to Foo’s evidence where it cogently and consistently accords with the Defence’s case that the Loans were given innocently and not corruptly.

38     After careful consideration of the above evidence given by Foo, Pay and Pek as highlighted by Pek based on the evidence adduced at the trial and to which there were no contrary specific submissions from the Prosecution, I agreed with Pek’s submissions[note: 102] that Foo, Pay and Pek all gave consistent evidence that there was no quid pro quo, corrupt intent, or dishonest advantage associated with the Loans. This lack of a corrupt element undermined the Prosecution's case against Pay and Pek. As the recipient of the alleged bribes, Foo testified that there was no quid pro quo, which was a crucial point, given that the Prosecution called him as its key witness. This testimony made it difficult for the Prosecution to maintain its charges against Pay and Pek. Foo was unaware of TSC’s involvement in the provision of the Staff Loans until after his arrest, which occurred more than a year after he received the Loans. This fact supported Pay’s testimony that he did not inform Foo about borrowing the Staff Loans from TSC to help Foo. Pek testified that it did not matter to him whether Foo knew about his approval of the Staff Loans. Additionally, Pek and Foo had only a professional relationship, with minimal social interaction, further supporting the absence of any corrupt intent or personal gain. Both Foo and Pek testified that the idea of any bribery was unthinkable. Foo believed that Pek would never agree to giving him a bribe, and Pek confirmed that if he had been approached for a bribe, he would have rejected it and informed the relevant authorities. Hence, the Prosecution’s case could not be sustained due to the consistent evidence of Foo, Pay and Pek showing no corrupt intent, quid pro quo, or dishonest advantage connected to the Loans.

39     I disagreed with the Prosecution's arguments[note: 103] that Foo's admission of feeling "corrupted" and his guilty plea should be interpreted as an acceptance of his own corrupt intention and a belief that Pay or Pek were corrupt. I agreed with Pek's submissions[note: 104] that Foo's statement about feeling "corrupted" should be understood within the full context of his testimony. Foo's admission was based on his current understanding of the law, not necessarily an acknowledgment of his own corrupt intent or that of Pay or Pek. Foo's guilty plea was not an acceptance of corruption but a pragmatic decision to "cut short the pain." Foo testified that he made the plea to avoid further distress, rather than out of an acknowledgment of corrupt behaviour. This suggests that Foo’s guilty plea was a strategic choice rather than a reflection of actual guilt or acknowledgment of corruption. Given that Foo’s guilty plea was driven by pragmatic reasons rather than an acceptance of corruption, his testimony that corroborates the Defence's case should not be discounted. Overall, I took the view that Foo’s guilty plea and his comments about feeling “corrupted” did not negate the validity of his evidence that supported the Defence’s case.

40     As regards Foo’s evidence on the source of the 2 loans that the approach and the intention behind these two sources of the loan would have been very different, a closer examination of his evidence (referred to and relied upon by the Prosecution) as a whole showed that Foo testified clearly that he had asked Pay for a personal loan as he believed Pay was well to do and had the capacity to lend money to him from his own pocket and did not ask Pay for TSC’s help for his financial problem which would give the impression that he would give something back to TSC and which he did not mean at all. Hence, Foo’s aforesaid evidence does not assist the Prosecution’s case, as contended by the Prosecution.[note: 105]

41     I rejected the Prosecution’s submissions[note: 106] that there was no genuine friendship between Pay and Pek to warrant the 2 loans from Pay to Foo as this was contrary to the consistent evidence of Pay and Foo that the Loans were extended by Pay purely on the basis of friendship and Foo’s evidence which is consistent with Pay’s evidence must be accepted by the Prosecution as truthful without the Prosecution’s impeachment of Foo on this issue.

42     I disagreed with the Prosecution’s submissions[note: 107] that the evidence showed that Foo’s agency relationship with LTA had undeniably been suborned and Foo thought Pay wanted some quid pro quo for his Loans based on a selective passage from Foo’s evidence relied upon by the Prosecution that “there are times where the loan did feature at the back of my head”. In my view, a closer examination of these aspects of Foo’s testimony[note: 108] as a whole showed that Foo had clarified that almost all the information that Pay had asked of Foo would have been known to Pay in time to come and while his friendship with Pay certainly has a part to play as he got help from Pay, the information Foo gave to Pay was still within Foo’s tolerable limits of not going overboard in terms of compromising his own morals or financially against LTA. Foo further testified that Pay never said anything to Foo that gave him the idea that Pay was expecting special favours and benefits, but because Pay was his friend who had helped him, Foo had unilaterally did certain things for him within tolerable limits. Moreover, the loans Foo took from Pay did not have any impact on Foo’s work for the LTA as Foo had testified that he never suggested to Pay that if Pay lent him money, he would help Pay in his work for TSC and he never told Pay in any way that if Pay did not lend him money, he would create trouble for TSC. As Foo was completely unequivocal about the innocence of Pay and Pek, I found that there is no basis for the Prosecution’s case that Foo’s agency relationship with LTA had undeniably been suborned and Foo thought Pay wanted some quid pro quo for his Loans. In my view, any unilateral release of information by Foo to Pay which Foo himself believed was within tolerable limits, but contended by the Prosecution[note: 109] to be in breach of LTA’s policies (e.g. by providing information that had not been cleared, or providing information outside of LTA’s official channels, which had potential to cause reputational damage to LTA) should be a matter for LTA internal disciplinary action against Foo, or even possible prosecution by the Public Prosecutor against Foo for violation of the Official Secrets Act[note: 110] 1935 since Pay cannot control Foo’s aforesaid unilateral beliefs and actions.

43     For all the above reasons, I rejected the Prosecution’s submissions[note: 111] that Foo’s evidence on the mens rea of Pay and Pek is purely speculative and does not mean the Loans were not corrupt from Pay and Pek’s perspective as what is in issue here is Pay and Pek’s mens rea, not Foo’s, which can be ascertained primarily from their admissions in their incriminating CPIB statements wherein both agreed to Foo’s loan requests because they were afraid that he might cause TSC problems otherwise. Further, I have found the aforesaid incriminating CPIB statements to be inaccurate, unreliable and unsafe to rely on by the Prosecution to prove its case against Pay and Pek. I also found that Foo’s evidence as the recipient on his own mens rea and the mens rea of Pay and Pek as the givers to the alleged corrupt transactions is relevant and must be accepted as truthful by the Prosecution which did not impeach him, and Foo’s evidence is consistent with the evidence of Pay and Pek that the Loans were given innocently and not corruptly so as to prove that there is no corrupt element and no corrupt intention in the aforesaid transactions.

(c)    Whether the selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution showed that Foo’s agency relationship with LTA had been suborned and proved Foo was beholden to or felt indebted to Pay for the Loans?

44     In my view, the Prosecution's reliance on Foo's WhatsApp message to Pay: “No worries. Anything I can help, I will. For you and Tiong Seng”, as evidence of Foo been beholden or indebted to Pay[note: 112] is misconceived. I agreed with Pay’s submissions[note: 113] that Pay is on trial, not Foo, and Pay has no control over Foo’s unprompted communications. Further, Foo admitted that the phrase “For you and Tiong Seng” might initially seem problematic but he could not recall exactly why he used it. After reflecting, Foo provided a reasonable explanation that his message likely referred to work-related matters or issues related to TSC because Pay had asked questions related to those topics. Foo was also not involved in J120, the project mentioned in the messages, and therefore could not have meant that he was willing to take steps to benefit TSC in relation to this project. Foo had clarified that the messages and any perceived sense of obligation were related to the existing friendship rather than any influence from the Loans. He emphasized that his willingness to share information was due to his friendship with Pay and not because of any moral compromise related to the Loans. Hence, I found that that Foo’s explanations and the context in which the messages were sent did not support the Prosecution’s claim that Foo was beholden to or felt indebted to Pay, especially when the Prosecution’s aforesaid claim is contrary to Foo’s unequivocal evidence on no corrupt intention on his part as well as that of Pay and Pek which must be accepted as truthful by the Prosecution which did not impeach Foo whose evidence is consistent with both Pay and Pek.

45     The Whatsapp message from Foo mentioning his inability to influence the outcome of the tender evaluation (i.e. “Bro, confidential info. Sorry I couldn’t influence enough when Tender Evaluation Comm presented to us in TSC w DCE as the chair”) was sent on 14 August 2019 and Pay had replied to Foo: “Thanks for the Infor..,,” As pointed out by Pay, TSC had by this time already been informed by LTA on 13 August 2019, that TSC had failed in its tender for T316. This timing suggests that Foo's message could not have had any impact on the outcome since the result was already known. Foo's message was unsolicited. Pay did not request Foo's help regarding the T316 tender evaluation, nor did he implicitly ask Foo to influence the outcome. Foo’s decision to send the message was a unilateral action on his part and of his own accord without any influence or request from Pay. Foo's testimony was unequivocal that Pay never asked him to help with the tender evaluation or to influence the outcome. Given these factors, the Prosecution’s reliance on Foo’s message to suggest that Foo was beholden to Pay[note: 114] was misplaced as the context and the fact that the message was unsolicited and sent after the tender result was known weakened the Prosecution’s arguments. In this regard, I agreed with Pay’s submissions[note: 115] and rejected the Prosecution’s suggestion[note: 116] that Pay's expression of thanks in response to the message from Foo indicated that Pay shared Foo's sentiments, and this should be used against Pay because Pay was never cross-examined by the Prosecution on the meaning of his messages and Pay had clarified during his EIC that his "Thanks for the Infor" response was an attempt to end an unexpected and unnecessary conversation from Foo, and was not an agreement with Foo's sentiments. Further, Pay often used the word "thanks" casually, even when he did not actually mean to express gratitude. In my view, the Prosecution’s aforesaid suggestions on Foo been beholden to Pay and that Pay shared Foo's sentiments is contrary to Foo’s unequivocal evidence on no corrupt intention on his part as well as that of Pay and Pek which must be accepted as truthful by the Prosecution which did not impeach Foo whose evidence is consistent with both Pay and Pek.

46     Along with the above Foo's WhatsApp message to Pay, Foo had sent Pay a photograph image of his work laptop screen on 14 August 2019. The image contained an internal document related to TSC’s performance in a tender. Based on the consistency of Pay’s evidence with the evidence of Foo and Lew who were Prosecution witnesses and whose respective credibility has not been impeached which meant that the Prosecution is bound to accept as truthful the evidence of Foo and Lew, I accepted Pay’s submissions[note: 117] that by the time Foo sent this image, TSC had already been officially informed by LTA on 13 August 2019 that it had failed in its tender for T316. Therefore, the information Foo shared was not confidential at that point. Foo was not providing Pay with any advance notice or unauthorized information. TSC had already been informed of its failed bid through official channels. Pay testified that the image provided no valuable or new information to him. The content of the image was essentially what TSC would have learned through the standard debriefing process offered by LTA. There was no evidence to suggest that Pay had requested Foo to send this image or transmit the information in any way that bypassed usual protocols. Any contractor who failed a tender could request a debrief from LTA, where they would receive a detailed explanation of why their tender was unsuccessful. The information in the image was simply a part of what would have been discussed during such a debrief. Foo had explained that the document in the image was the same one he would use during the debrief to explain TSC’s shortcomings. Thus, the image contained no more information than what would be officially provided during a debrief. Lew had also confirmed that the information in the image was what TSC would have received during the debrief session. Furthermore, TSC had already requested a debrief from LTA, which was scheduled before Foo sent the image to Pay. Hence, Foo’s transmission of the image did not constitute a breach of confidentiality or any improper action. The information shared was not sensitive or valuable by the time it was sent, and Pay had not solicited this information in any inappropriate manner. In my view, the Prosecution's suggestion that the transmission of this image was improper or indicative of a corrupt relationship was unfounded as the evidence from the testimonies of Pay, Foo and Lew showed that the information was routine and would have been provided to TSC through standard procedures. Further, as stated earlier, any unilateral release of information by Foo to Pay which as contended by the Prosecution was in breach of LTA’s policies (e.g. by providing information that had not been cleared, or providing information outside of LTA’s official channels, which had potential to cause reputational damage to LTA) should be a matter for LTA internal disciplinary action against Foo, or even possible prosecution by the Public Prosecutor against Foo for violation of the Official Secrets Act 1935 since Pay cannot control Foo’s unilateral action.

47     I see no merit in the Prosecution’s reliance on following Whatsapp messages[note: 118] between Pay and Foo to show that Foo was beholden or indebted to Pay for the reasons submitted by Pay which have been summarized together with my views as follows:

(a)     On 3 January 2018, Pay asked Foo via Whatsapp whether TSC prequalified for certain projects, specifically “second preq for NSC… N108, N110 and N111.” I accepted Pay’s submissions[note: 119] that there was no connection between the loan Pay made and the alleged favour he sought from Foo. This alleged favour Pay sought on 3 January 2018 was six months after the first loan Pay made and this temporal gap showed that the loan and alleged favour were not linked, undermining any suggestion of a corrupt relationship. As for the Prosecution’s reliance on isolated excerpts from Foo's testimony, focusing on Foo's internal thoughts about how he felt after receiving the loans, Pay had rightly pointed out that these feelings were never put to Pay and therefore could not be relevant to determining Pay's guilt, and there was no evidence showing Pay harboured any corrupt intent. Foo’s own testimony, in which he described Pay as someone who would not take advantage of him or seek corrupt favours, was significant and supportive of Pay’s innocence, and must be accepted as truthful by the Prosecution which has not impeached Foo on this issue.

(b)     On 19 February 2019, Pay asked Foo via Whatsapp for the name of the person in charge of the "LTA HQ redevelopment, project J120." I agreed with Pay’s submissions[note: 120] that Foo was not involved in the J120 project, and Pay’s request for the contact information was innocuous and did not offer any advantage to Pay or TSC over other contractors as the request was presented as a normal inquiry, similar to questions other contractors might ask the LTA. At the trial, Foo appeared perplexed when the Prosecution implied that Pay’s question was inappropriate as Foo saw nothing wrong with Pay's request, viewing it as a standard query that would not give Pay or TSC an unfair advantage. Pay also found nothing improper in his message, considering it a normal thing as the information he requested (the contact person for project J120) was something LTA typically makes publicly available. During questioning, the Prosecution suggested that Pay's inquiry was improper and Pay was confused by this suggestion, as he saw the question as entirely legitimate and normal. Foo’s evidence is consistent with Pay’s evidence and the Prosecution which did not impeach Foo is bound to accept Foo’s evidence as truthful. Further, this alleged favour Pay sought on 19 February 2019 was almost a year after the second loan was made and this temporal gap showed that the loan and alleged favour were not linked, undermining any suggestion of a corrupt relationship.

(c)     On 1 June 2019, Pay messaged and queried Foo via Whatsapp on TSC’s chances for the T316 LTA contract. I accepted Pay’s submissions[note: 121], inter alia, that Pay’s question was neither uncommon nor unusual. Foo testified that such inquiries were "absolutely common," indicating that contractors often asked similar questions of high-ranking officials at LTA, including the Deputy Chief Executive. Lew also confirmed during the trial that it was commonplace for contractors to ask such questions. Pay clarified that his questions to Foo were general and not intended to extract specific or confidential information as he understood the limitations imposed by LTA’s strict protocols and that he never sought information he was not supposed to know. Pay also stated that he was unaware of Foo’s specific role or authority regarding the T316 project, reinforcing the idea that his inquiry was innocuous and the responses from Foo did not involve seeking or obtaining any improper advantage. Pay’s evidence is consistent with the evidence of Foo and Lew which the Prosecution must accept as truthful without impeaching Foo and Lew.

(d)     On 2 September 2019, Pay messaged Foo via Whatsapp asking about TSC’s chances in the tender for the J101 project, which involved the design and construction of the Tengah Depot for the Jurong Region Line. I agreed with Pay’s submissions[note: 122] that Pay admitted in his first CPIB statement and during the trial that his question stemmed from personal curiosity. He emphasized that this was a common practice and not an attempt to gain an unfair advantage. Pay’s query was neither uncommon nor inappropriate, as similar questions were regularly asked of LTA officials, including the Deputy Chief Executive. Foo and Lew both confirmed that contractors frequently inquired about the status of pending tenders. Pay knew that Foo was not involved in the J101 project, which was confirmed by Foo's testimony. Therefore, Pay’s question was purely out of inquisitiveness, not because he was seeking to influence the outcome. Pay’s close friendship with Foo created a sense of familiarity, making such questions more likely to be casual and informal, rather than part of any corrupt arrangement. On the same day, 2 September 2019, TSC received an email from LTA inviting them to a tender interview on 6 September 2019. This invitation, along with the Tender Clarification Questions (TCQs), indicated that TSC-Lotte JV was already considered a strong candidate for the project. Foo’s response to Pay, indicating that TSC-Lotte JV had a "good chance," did not reveal any confidential information, as Pay would have already inferred this from the LTA’s invitation. Despite Lew’s initial concerns that knowing they had a “good chance” might make contractors difficult during the clarification process, it was shown that TSC-Lotte JV was fully compliant and cooperative with LTA’s requests. If Pay had any corrupt understanding with Foo, he would have asked for more substantial information or favours, rather than simply confirming a situation that was already apparent. The message was more reflective of Pay’s natural impatience and curiosity, rather than any corrupt intent. Hence, I found that Pay’s inquiry was a routine and innocuous question, motivated by personal curiosity rather than any expectation of a corrupt advantage as the evidence of Pay, Foo and Lew did not support the Prosecution’s implication that the messages were indicative of any wrongdoing. Pay’s evidence was consistent with the evidence of Foo and Lew which the Prosecution must accept as truthful without impeaching Foo and Lew.

(e)     The Prosecution had argued that Foo’s use of the term “we” in his Whatsapp message to Pay that:“We should have arranged for Lotte to meet us earlier” suggested that Foo had been “captured”. I accepted Pay’s submissions[note: 123] that this interpretation was never directly put to Foo during the trial for Foo to explain what he meant by "we" in this context. When this argument was presented to Pay, he disagreed with the Prosecution's reading of Foo’s message. Pay clarified that the term “we” referred to LTA rather than TSC, and that it was common for LTA to meet with foreign contractors, like Lotte, who were new to Singapore as part of LTA’s standard practice to understand the contractors before they submit a tender. Pay also denied the Prosecution’s suggestion that it did not matter whether “we” referred to LTA or TSC because it would have still benefited TSC’s bid as the context of the message was about LTA's practices, not any collusion or inappropriate behaviour. Hence, I rejected the Prosecution’s aforesaid argument as it was refuted by Pay and not supported by Foo’s own testimony since Foo was not asked by the Prosecution during the trial to explain what he meant by "we" in the context of his above Whatsapp message to Pay.

48     For all the above reasons, I took the view that the above selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution did not show that Foo’s agency relationship with LTA had been suborned and failed to prove that Foo was beholden to or felt indebted to Pay for the Loans.

(F)   CONCLUSION

49     In the light of my decisions on the above 3 key issues arising from the trial, I found that the Prosecution has failed to prove its case against Pay and Pek beyond a reasonable doubt that :

(a)     the Loans given to Foo were given corruptly with a corrupt element and corrupt intention in the transactions involving Pay, Pek and Foo, as the Prosecution cannot rely on the respective inaccurate and unreliable incriminating CPIB statements of Pay and Pek to prove its case and is bound to accept as truthful Foo’s evidence on his own men rea and the mens rea of Pay and Pek which was consistent with the evidence of Pay and Pek that the Loans were given innocently; and

(b)     the selected Whatsapp messages between Pay and Foo as relied upon by the Prosecution did not show that Foo’s agency relationship with LTA had been suborned and failed to prove that Foo was beholden to or felt indebted to Pay for the Loans.

50     As I took the view that my decisions on the above 3 key issues arising from the trial were sufficient for me to find that the Prosecution has failed to prove its case against Pay and Pek beyond a reasonable doubt, it was unnecessary for me to decide on other issues arising from the trial, such as whether there is objective evidence to corroborate the Prosecution’s case that the reason behind the Loans was corrupt, or show that the Loans to Foo were intended to advance TSC’s interests[note: 124], as well as various other disputed issues of law and facts as framed by Pek’s counsel.[note: 125]

51     Accordingly, pursuant to s 230(1)(w) CPC, I found Pay and Pek not guilty and ordered a discharge amounting to an acquittal for all their respective charges together with an order for their release forthwith.

[note: 1]Section 6(b) states: If — (b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; … he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

[note: 2]Section 7 states: A person convicted of an offence under section 5 or 6 shall, where the matter or transaction in relation to which the offence was committed was a contract or a proposal for a contract with the Government or any department thereof or with any public body or a subcontract to execute any work comprised in such a contract, be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 7 years or to both.

[note: 3]

[note: 4]Section 29(a) states: Whoever abets, within the meaning of the Penal Code — (a) the commission of an offence under this Act; … shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

[note: 5]PS1

[note: 6]PS2

[note: 7]In addition to the oral submissions of all parties made before this Court on 20 October 2023, these submissions are: (a) submissions dated 29 May 2023 tendered by Pay (“Pay’s NCTA Submissions”) and Pek (“Pek’s NCTA Submissions”) (collectively, “Defence’s NCTA Submissions”); (b) reply submissions dated 14 July 2023 tendered by Pay Teow Heng (“Pay’s Reply Submissions”) and Pek Lian Guan (“Pek’s Reply Submissions”) (collectively, “Defence’s Reply Submissions”); (c) Prosecution’s submissions dated 30 June 2023 (“Prosecution’s Initial Reply”); and (d) Prosecution’s Further Reply submissions dated 4 September 2023 (“Prosecution’s Further Reply”)

[note: 8]As set out in the Prosecution’s Further Reply at para 39 and 40.

[note: 9]Pay’s NCTA Submissions at [248]-[305].

[note: 10]Pek’s NCTA Submissions at [260]-[263].

[note: 11]Pek’s NCTA Submissions at [256]-[264].

[note: 12]City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR(R) 733 at [23]; E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and ors [2012] 1 SLR 32 at [54],

[note: 13]Section 2 of the PCA expressly provides that for the purposes of the PCA, “gratification” includes any “loan”.

[note: 14]Pandiyan Thanaraju Rogers v PP [2001] 2 SLR(R) 217 (“Pandiyan”) at [43]; PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20].

[note: 15]NEs of 23 June 2022 (Day 12), p. 107:14-21.

[note: 16]Pandiyan at [42].

[note: 17]PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20].

[note: 18]Pay’s Reply Submissions at [111] and Pek’s Reply Submissions at [164] and [198]

[note: 19]Pay’s NCTA Submissions at [206], Pek’s NCTA Submissions at [117].

[note: 20]PP-25 at CC-65, Clause 67.2.1; NEs of 4 April 2023 (Day 20), p. 38:5-12; NEs of 4 April 2023 (Day 20), p. 43:1-16.

[note: 21]Pay’s NCTA Submissions at [71]-[73].

[note: 22]Pay’s NCTA Submissions at [72].

[note: 23]AB(P)-9 at p. 1041.

[note: 24]AB(P)-9 at p. 1040.

[note: 25]ASOF at [11]-[12].

[note: 26]Pay’s Reply Submissions at [17]-[21]

[note: 27]Pay’s Reply Submissions at [33]-[35]

[note: 28]AB(P)-15 at Q23 [Q1/A1].

[note: 29]Exhibit AB(1D)-5 at p. 1.

[note: 30]Pay’s Reply Submissions at [39]-[40].

[note: 31][156]-[166] of Pay’s NCTA Submissions.

[note: 32][161] of Pay’s NCTA Submissions.

[note: 33][162] of Pay’s NCTA Submissions.

[note: 34]Pay’s NCTA Submissions at [210]-[212].

[note: 35]Pay’s NCTA Submissions at [224]-[247].

[note: 36]PP v Tan Aik Heng [1995] 1 SLR(R) 710 (“Tan Aik Heng”) at [29].

[note: 37]Pek’s Reply Submissions at [21]-[23].

[note: 38]See, for illustration, the remarks of the Court of Appeal in Tan Aik Heng at [31].

[note: 39]Prosecution’s Initial Reply at [11(d)].

[note: 40]Chan Wing Cheong, ‘Criminal Law’, SAL Annual Review 2003 178 and Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Singapore (LexisNexis, 2022)

[note: 41]Hendricks Glen at [14].

[note: 42]Pek’s Reply Submissions at [52]-[54].

[note: 43]Section 8 of the PCA reads as follows:Presumption of corruption in certain cases8. Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.

[note: 44]Lai King Choon at [191].

[note: 45]Section 29 of the PCA reads as follows:Abetment of offences29. Whoever abets, within the meaning of the Penal Code 1871 —(a)the commission of an offence under this Act; or(b)the commission outside Singapore of any act, in relation to the affairs or business or on behalf of a principal residing in Singapore, which if committed in Singapore would be an offence under this Act, shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

[note: 46]See Baker, Samuel Cranage and another v SPH Interactive Pte Ltd [2022] SGHC 238 where the High Court held that a party is generally required to accept the truthfulness of its own witness unless the witness is impeached in accordance with s 157 of the Evidence Act. See also CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2020] SGHC 160 at [28].

[note: 47]In Kwang Boon Keong Peter v PP [1998] SGHC 144 at [18], CJ Yong Pung How in the context of discussing s 157 of the EA drew a distinction between credit and credibility as follows: “…Nokes, in the fourth edition of An Introduction to Evidence at pp 407–408, sought to define and distinguish between credit and credibility. The learned author stated that credit involves “antecedents, associates, character, impartiality and consistency” while credibility concerns the “opportunities for a power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers”. It can thus be deduced that the credit of a witness refers to his character and moral reliability whereas the credibility of a witness refers to his mental capacity and power to be a witness of veracity.”

[note: 48]Farida Begam d/o Mohd Artham v PP [2001] 3 SLR(R) 592 at [9].

[note: 49]See Ng Kwee Leong v PP [1998] SGHC 294 where the High Court held that the trial judge made no error of law in relying on the testimony of PW1 although he lied about the appellant attempting to assault him as the trial judge had given due consideration to PW1’s lie in assessing the credibility and veracity of his evidence.

[note: 50]as held by the High Court in PP v Tang Eng Peng Alan [1995] 2 SLR(R) 672 at [20]).

[note: 51]AB(P)-19.

[note: 52]Pek’s Reply Submissions at [142].

[note: 53]Pek’s Reply Submissions at [202]

[note: 54]AB(P)-17.

[note: 55]NEs of 1 June 2022 (Day 1), pp. 77:1-78:15.

[note: 56]NEs of 1 June 2022 (Day 1), p. 81:2-13.

[note: 57]Pek’s Reply Submissions at [204].

[note: 58]Pek’s Reply Submissions at [207]

[note: 59]NEs of 21 June 2022 (Day 10), pp. 101:14-104:18.

[note: 60]Pek’s Reply Submissions at [218]-[219].

[note: 61]The following are the written and oral submissions of the parties at the close of trial: (a) Prosecution’s submissions at the close of trial dated 25 June 2024 (Prosecution’s closing submissions); (b)Prosecution’s reply dated 31 July 2024 (Prosecution’s reply submissions); (c) Closing submissions of the first accused dated 25 June 2024 (Pay’s closing submissions); (d) Reply submissions of the first accused dated 31 July 2024 (Pay’s reply submissions); (e) Pay Teow Heng’s Supplemental Closing Submissions dated 18 August 2024; (Pay’s supplemental closing submissions); (f) Closing submissions of the second accused dated 25 June 2024 (Pek’s closing submissions); (g) Reply submissions of the second accused dated 31 July 2024 (Pek’s reply submissions); (h) The NE transcripts of the oral submissions made by the Parties on 14 August 2024; and (i) The NE transcripts of the oral submissions made by the Parties on 19 August 2024.

[note: 62]Prosecution’s reply submissions at [5].

[note: 63]Prosecution’s reply submissions at [14] to [15] and [40] to [44].

[note: 64]Pay’s closing submissions at [598] to [706]; Pay’s reply submissions at [25] to [110]; and Pek’s closing submissions at [928] to [982].

[note: 65]Pay’s closing submissions at [616] to [618] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 66]Pay’s closing submissions at [619] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 67]Pay’s closing submissions at [622] to [627] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 68]Pay’s closing submissions at [628] to [629] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 69]Pay’s closing submissions at [630] to [634]. NE, Pay’s XX on 21 March 2024 at pp. 41 to 42; 7 March 2024 at pp. 119 and 130.

[note: 70]Pay’s closing submissions at [653] to [658] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 71]Pay’s closing submissions at [615] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 72]Pay’s closing submissions at [598] and [664].

[note: 73]Pay’s reply submissions at [60].

[note: 74]Pay’s reply submissions at [62].

[note: 75]Pek’s closing submissions at [493] to [770], Pek’s reply submissions at [28] to [92], [96] to[100], Pek’s oral submissions at pp. 68 to 118 of the NE transcript dated 19 August 2024.

[note: 76]Pek’s closing submissions at [497], [510] to [511], [515], [520], [588], [605], [622], [675] to [678], [680] to [681], [687]. [705] to [707] and [720]; Pek’s reply submissions at [40] to [41], [64]

[note: 77]Pek’s closing submissions at [515] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 78]Pek’s closing submissions at [520] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 79]Pek’s closing submissions at [687].

[note: 80]Pek’s closing submissions at [622].

[note: 81]Pek’s closing submissions at [588].

[note: 82]Pek’s closing submissions at [604] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 83]Pek’s closing submissions at [605] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 84]Pek’s closing submissions at [675].

[note: 85]Pek’s closing submissions at [676] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 86]Pek’s closing submissions at [678] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 87]Pek’s closing submissions at [680] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 88]Pek’s closing submissions at [705] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 89]Pek’s reply submissions at [40] to [41].

[note: 90]Pek’s reply submissions at [64].

[note: 91]Pek’s closing submissions at [497].

[note: 92]Pek’s closing submissions at [720].

[note: 93]Pek’s closing submissions at [510].

[note: 94]Pek’s closing submissions at [511].

[note: 95]Pek’s closing submissions at [220] to [222].

[note: 96]Pek’s closing submissions at [225].

[note: 97]As highlighted in Pek’s closing submissions at [239] to [242].

[note: 98]Pek’s closing submissions at [235] to [238] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 99]Pek’s closing submissions at [239] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 100]Pek’s closing submissions at [233].

[note: 101]Pek’s closing submissions at [234].

[note: 102]Pek’s closing submissions at [240] to [242].

[note: 103]Prosecution’s reply submissions at [171(c)].

[note: 104]Pek’s closing submissions at [249] to [251] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 105]Prosecution’s reply submissions at [170(b)].

[note: 106]Prosecution’s closing submissions at [107] to [116].

[note: 107]Prosecution’s reply submissions at [171].

[note: 108]NEs, Day 15 at pp. 5 to 10.

[note: 109]Prosecution’s closing submissions at [145(a)].

[note: 110]As reported in the Straits Times of 13 September 2024 at https://www.straitstimes.com/singapore/dsta-manager-allegedly-told-another-man-about-three-projects-both-charged-under-osa, a manager from the Defence Science and Technology Agency (DSTA) allegedly shared information on three projects related to tenders, bids and budgets involving works for a toilet and several buildings with an external party who had dealings with DSTA at the time, and both the giver and recipient of the information were charged under the Official Secrets Act.

[note: 111]Prosecution’s reply submissions at [170].

[note: 112]Prosecution’s reply submissions at [171(b)].

[note: 113]Pay’s closing submissions at [360] to [362] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 114]Prosecution’s reply submissions at [170(b)].

[note: 115]Pay’s reply submissions at [305] to [310] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 116]Prosecution’s closing submissions at [146].

[note: 117]Pay’s closing submissions at [419] to [428] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 118]Prosecution’s closing submissions at [143] to [144].

[note: 119]Pay’s reply submissions at [286] to [294] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 120]Pay’s reply submissions at [302] to [304] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 121]Pay’s closing submissions at [381] to [407] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 122]Pay’s closing submissions at [331] to [356] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 123]Pay’s reply submissions at [312] to [315] and the various references cited therein to the relevant supporting NEs, emails, WhatsApp messages and/or other documentary evidence.

[note: 124]As raised in the Prosecution’s closing submissions at [70] to [98] and [141] to [148].

[note: 125]As stated in Pek’s reply submissions at Annex in [1], [7] and [49] to [78].

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Section 65(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed) – Driving without reasonable consideration causing grievous hurt"],"date":"2024-10-10","court":"District Court","case-number":"District Arrest Case No 912606 of 2023, Magistrate's Appeals No 9178 of 2024-01","title":"Public Prosecutor v Mark Robert Cox","citation":"[2024] SGDC 265","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32311-SSP.xml","counsel":["Tan Jing Min (Attorney-General's Chambers) for the Prosecution","Sunil Sudheesan and Joyce Khoo (Quahe Woo & Palmer LLC) for the Accused."],"timestamp":"2024-10-17T16:00:00Z[GMT]","coram":"Koo Zhi Xuan","html":"Public Prosecutor v Mark Robert Cox

Public Prosecutor v Mark Robert Cox
[2024] SGDC 265

Case Number:District Arrest Case No 912606 of 2023, Magistrate's Appeals No 9178 of 2024-01
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Koo Zhi Xuan
Counsel Name(s): Tan Jing Min (Attorney-General's Chambers) for the Prosecution; Sunil Sudheesan and Joyce Khoo (Quahe Woo & Palmer LLC) for the Accused.
Parties: Public Prosecutor — Mark Robert Cox

Criminal Procedure and Sentencing – Sentencing – Section 65(3)(a) Road Traffic Act (Cap 276, 2004 Rev Ed) – Driving without reasonable consideration causing grievous hurt

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9178/2024/01.]

10 October 2024

District Judge Koo Zhi Xuan:

1       Mark Robert Cox (“the Accused”) pleaded guilty to the following charge: on 25 June 2021 at or about 1.27 p.m., along Jalan Toa Payoh slip road into Pan Island Expressway (PIE), Singapore, the Accused did drive a motor lorry, GBF5782M (“the lorry”), on a road without reasonable consideration, to wit, by using the same lane to overtake from the right side of a motorcycle, FBH8221K (“the motorcycle”), which was travelling on lane 1 of a two-lane road, resulting in a collision with the motorcycle, which was travelling on the Accused’s left side, at the material time of accident, and grievous hurt was caused to the motorcycle rider, one Mr Liow (“the Victim”); and by such driving, the Accused has thereby committed an offence under Section 65(1)(b) and punishable under Section 65(3)(a) read with Section 65(6)(d) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”).

2       Having carefully considered the facts and parties’ submissions, I sentenced the Accused to 5 months’ and 2 weeks’ imprisonment, and disqualified him from holding or obtaining all classes of driving licences for a period of 5 years with effect from his date of release from prison (together with a prohibition under s 47F RTA from driving any motor vehicle in Singapore for the same period). The Prosecution, being dissatisfied with the sentence imposed, has filed a notice of appeal.

3       I now set out my grounds of decision, which incorporate the oral sentencing remarks I had delivered when sentencing the Accused on 12 September 2024.

The Facts

4       The Statement of Facts (“SOF”) which the Accused admitted to without qualification is reproduced below, together with screenshots of a witness’ in-car camera footage which was shown during court proceedings. The witness was driving behind the Victim at all material times.

5       The Accused is a 55-year-old male holding British nationality. He was the driver of the lorry at the time of accident. The Victim is a 72-year-old male, the rider of the motorcycle (he was 69 years old at the time of the accident).

6       On 25 June 2021 at or about 1.27 p.m., the Victim and the Accused were travelling in their respective vehicles along Jalan Toa Payoh towards Pan Island Expressway (PIE), which is a two-lane road. They were driving towards Tuas. Both the Victim and the Accused were initially on lane 2, which is the left lane, with the Accused’s lorry behind the Victim’s motorcycle. In that lane, the Victim left his right signal indicator on for more than 22 seconds.

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7       Before the Victim made a lane change, the Accused did so from lane 2 to lane 1. The Accused then accelerated in lane 1.

8       Subsequently, the Victim, with his right indicator light still signalling, checked for oncoming traffic to his right on lane 1 and changed from lane 2 to lane 1, in front of the Accused’s motor lorry:

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9       The Victim checked for oncoming traffic again and veered his motorcycle towards the right side of lane 1, towards the exit of the expressway on the right. At the same time, the Accused’s lorry began to overtake the Victim’s motorcycle from the right side of the Victim’s motorcycle, using the same lane:

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10     The Victim, whose right indicator light was still signalling while he was on the left side of the Accused’s lorry, continued to veer towards the right side of lane 1 towards the exit of the expressway on the right. The Accused swerved right to avoid colliding with the Victim’s motorcycle. Thereafter, the Accused drove back towards the left to keep driving on the expressway, cutting across the chevron marking as he did so. This resulted in a side-swipe between the Victim’s motorcycle and the left rear portion of the Accused’s lorry:

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11     The victim’s motorcycle tipped over and his body was dragged across the asphalt on the road before coming to a stop. The Accused then stopped his lorry to check on the Victim and assist with investigations.

12     At the time of accident, the weather was fine, the road surface was dry, traffic flow was heavy, and visibility was clear.

13     The Victim was conveyed to Tan Tock Seng Hospital (“TTSH”) where he was diagnosed with the following injuries:

(a)     skull fractures,

(b)     facial fractures,

(c)     bilateral temporal bone fracture,

(d)     right rib fractures,

(e)     left temporal lobe haemorrhagic contusion,

(f)     subarachnoid haemorrhage in the brain,

(g)     right optic nerve injury with permanent complete loss of vision in the right eye, and

(h)     multiple abrasions.

14     All of the Victim’s injuries were treated conservatively. The Victim was admitted to the hospital for 28 days between 25 June to 22 July 2021 before being discharged to TTSH Rehabilitation Centre. In total, the Victim was given 124 days of hospitalization leave from 25 June to 26 October 2021.

15     The Victim’s motorcycle sustained numerous scratches and dents on its right side. The Accused’s lorry sustained a scratch on its left rear bumper.

16     By overtaking the Victim’s motorcycle with his lorry using the same lane, the Accused drove without reasonable consideration for other persons on the road, and grievous hurt was caused to the Victim. The Accused has thus committed an offence under s 65(1)(b) and punishable under s 65(3)(a) read with s 65(6)(d) of the RTA.

Antecedents

17     The Accused is untraced.

Prosecution’s Address on Sentence

18     The Prosecution submitted for a sentence of 8 to 10 months’ imprisonment, with the mandatory minimum disqualification order (“DQ order”) of 5 years to take effect from the Accused’s date of release from prison.

19     Applying the High Court decision of Chen Song v Public Prosecutor and other appeals [2024] SGHC 129 (“Chen Song”), the Prosecution submitted that the present case was one involving “greater harm”, and the Accused’s culpability fell within the moderate end of “lower culpability”.

20     The Prosecution highlighted three primary harm factors:

(a)     First, the nature of the injuries was serious, as the Victim had suffered injuries at vulnerable parts of his body.

(b)     Second, the Victim’s injury was permanent, as he suffered a permanent complete loss of vision in the right eye.

(c)     Third, the impact of the injury was significant, as the victim was admitted to hospital for 28 days and given a long duration of hospitalisation leave, ie, 124 days. The Victim would also be permanently affected in his ability to carry out daily tasks and maintain his livelihood, as he had lost vision completely in his right eye.

21     As for the Accused’s culpability, the Prosecution submitted that he had cut across the chevron marking to avoid taking the exit off the expressway. In relation to the Victim leaving his right signal indicator on for 22 seconds before making a lane change, the Prosecution submitted that this had no bearing on the culpability of the Accused. This is because the Victim’s right signal indicator was still on after the lane change, and this should have given notice to the Accused that the Victim might be taking the exit on the right.

22     Given these factors, the Prosecution was of the view that the sentence to be imposed should fall within the high end of Band 2 of the sentencing framework set out in Chen Song at [134(b)], which has a sentencing range of 6 months’ to 1 year’s imprisonment. The indicative starting point sentence, in the Prosecution’s view, ought to be 10 to 12 months’ imprisonment. This is because there were three primary harm factors and one culpability factor identified.

23     At the next step, the Prosecution submitted that there were no offender-specific aggravating or mitigating factors to warrant a further adjustment to the starting point sentence, save for the Accused’s plea of guilt. The Prosecution had indicated that the case was ready for the plea to be taken on 28 November 2023, and the last day for the Defence to indicate a decision to plead guilty under stage 1 of the Sentencing Advisory Panel’s Guidelines for Reductions in Sentences for Guilty Pleas (“SAP Guidelines”) was therefore 20 February 2024. The Defence only formally indicated the Accused’s intention to plead guilty on 29 May 2024. As the Accused had indicated his plea of guilt at stage 2 of the SAP Guidelines, the Court should consider a maximum of 20% reduction in the Accused’s imprisonment sentence.

24     Applying this reduction to the indicative starting point sentence, the Prosecution submitted that the final sentence should be 8 to 10 months’ imprisonment, and a DQ order of 5 years.

Mitigation

25     The Defence submitted that a 3 months’ imprisonment sentence should be imposed, together with a DQ order of 5 years.

26     Applying Chen Song, the Defence submitted that the present case fell within the higher end of “lesser harm” and low end of “lower culpability”, and the indicative starting point should be within Band 1 of the Chen Song sentencing framework.

27     On the issue of harm, even though the Defence accepted the three harm factors highlighted by the Prosecution, the Defence submitted that the severity of the grievous hurt the Victim suffered was low considering that his injuries were treated conservatively. The Defence also highlighted that there was nothing to suggest that the Victim’s ability to carry out daily tasks or maintain his livelihood had been affected.

28     The Defence thus submitted that an imprisonment term of around 5 months would be an appropriate starting point.

29     The Defence then submitted that besides the Accused’s plea of guilt, mitigating weight ought to be given to the fact that the Victim had kept his right signal indicator on for more than 22 seconds without making any manoeuvre to the right, causing significant confusion to road users at the material time. Quoting from the “Riding Theory Booklet: Official Handbook” published by the Singapore Traffic Police on 22 October 2020 (“Riding Theory Booklet”) at paragraph 145, the Defence highlighted that the recommendation for riders is that they signal their intention of their manoeuvre at least 3 seconds in advance. The Victim should therefore not have kept his right signal indicator on for such a prolonged period of time, without making the lane change.

30     The Defence submitted that the Victim’s driving behaviour contributed to the misimpression that the Victim was not serious about changing lane or taking the exit on the right; and the accident occurred when the Accused tried to overtake the Victim from the right just as the Victim was veering further right to exit the expressway. The Defence submitted that this should factor into the Court’s consideration and calibration of the Accused’s culpability.

31     The Defence also submitted that the maximum reduction of 30% should still be made available to the Accused, even though it conceded that the Accused’s decision to plead guilty was only formally indicated at stage 2 of the SAP Guidelines. Defence Counsel explained that adjournments were sought because the Defence had tried to obtain an expert report on how the accident had occurred, as the Defence had thought that this could have a bearing on the assessment of the Accused’s culpability and whether a Newton hearing was necessary. Eventually, the Defence decided not to tender or use the expert report which was obtained. Defence Counsel also candidly acknowledged that it was a mistake on his part in not formally indicating earlier that the Accused was going to plead guilty, as opposed to doing so only after the expert report had been obtained.

32     Eventually, the Defence submitted that a downward adjustment to around 3 months’ imprisonment would be appropriate in the present case. The Defence pleaded for the Court to show mercy on the Accused, who had maintained an unblemished driving record in Singapore (for 8 years) prior to the accident and was very remorseful for having caused the accident. Because of this offence, the Defence submitted that the Accused and his family (comprising of the Accused’s wife and daughter) would likely have to leave Singapore as a result.

The Court’s Decision on Sentence

The prescribed punishment

33     Under s 65(3)(a) of the RTA, the Accused was liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years, or to both. He was also to be disqualified from holding or obtaining a driving licence for a period of not less than 5 years, under s 65(6)(d) of the RTA.

The applicable sentencing framework

34     The applicable sentencing framework for the offence the Accused had pleaded guilty to is found in the seminal High Court decision in Chen Song, where the High Court set out sentencing frameworks to be applied for offences punishable under section 65(3)(a) and section 65(4)(a) of the RTA.

35     Under the first step, the sentencing court is to identify the offence-specific harm and culpability factors.

36     Harm factors include primary and secondary harm factors. Primary harm factors are factors which pertain directly to the bodily injury suffered by the victim(s), which include: (i) the nature and location of the injuries, (ii) the degree of permanence of the injuries, and (iii) the impact of the injuries. Each primary harm factor counts as one offence-specific factor going towards harm; and these factors are meant to be “taken into account in the court’s assessment of whether the harm caused constituted “greater harm” or “lesser harm’” (Chen Song at [127]). At the same time, the High Court held that even if two or more primary harm factors apply, “if they present themselves to a limited degree, the court may nevertheless consider that ‘lesser harm’ had been caused based on a holistic assessment of the harm caused” (Chen Song at [127]). Secondary harm factors such as potential harm, where significant, should be considered in the determination of where the offence falls within the indicative sentencing band.

37     The High Court also laid down a non-exhaustive list of culpability factors, with each of them constituting one offence-specific factor going towards culpability, such as: (i) any form of dangerous driving behaviour; (ii) flouting of traffic rules and regulations; and (iii) high degree of carelessness. The High Court also held that the sentencing court should be “alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness”, by considering whether the “moral culpability of the offender [is] affected by the behaviour of the victim or a third party” (Chen Song at [133]).

38     The High Court held that generally, if there are 0 – 1 primary harm or culpability factors, there will be “lesser harm” and “lower culpability” respectively. Conversely, if there are 2 or more harm or culpability factors, there will be “greater harm” and “higher culpability” respectively.

39     Under the second step, the court is to then identify the applicable sentencing range based on the number of offence-specific factors present:

Band

Circumstances

Sentencing range

1

Lesser harm and lower culpability

Fine and/or up to 6 months’ imprisonment

2

Greater harm and lower culpability

Or

Lesser harm and higher culpability

6 months’ to 1 year’s imprisonment

3

Greater harm and higher culpability

1 to 2 years’ imprisonment



40     Under the third step, the court should identify an indicative starting point sentence within the applicable sentencing range.

41     Finally, under the fourth step, the court is to make adjustments to the starting point by taking into account offender-specific aggravating and mitigating factors.

42     I now explain how I had arrived at my decision by applying the Chen Song sentencing framework.

Assessing the level of harm

43     In terms of the harm caused, I was in agreement with the Prosecution that all of the three primary harm factors in Chen Song were engaged in the present case. This was also not disputed by the Defence. To reiterate, the three primary harm factors were as follows:

(a)     The Victim’s injuries were numerous and at vulnerable parts of his body, as he had suffered fractures on his skull and face, and haemorrhage in his brain.

(b)     There was permanent injury caused, as the Victim suffered a permanent complete loss of vision in his right eye.

(c)     The impact of the injury caused the Victim to be warded for 28 days and he was given 124 days of hospitalisation leave in total.

44     Given that all three primary harm factors were engaged, I was of the view that harm must fall within “greater harm” in the Chen Song sentencing framework. I therefore disagreed with the Defence’s submission that harm should be assessed as falling only at the higher end of “lesser harm”.

45     At the same time, notwithstanding the amount of suffering caused to the Victim, which should not be downplayed, I was of the view that the harm caused should be calibrated as being at the lower end of “greater harm”. In coming to this finding, I was mindful of the High Court’s reminder that “injuries classified as grievous hurt are by their nature serious. Yet the breadth of the category allows for it to encompass a wide range of injuries of differing levels of severity” (Chen Song at [127]). In my view, the same principle should apply in the Court’s assessment of whether, even if a case is one which falls within “greater harm”, the extent of harm is more appropriately classified in the lower end or higher end of “greater harm” itself.

46     In this regard, I considered that all of the Victim’s injuries could be treated conservatively, and he did not require any form of surgery arising from the accident. Indeed, there was no indication that the Victim had to be warded in the Intensive Care Unit (“ICU”) despite his many injuries; and the SOF also did not state whether there was any long-term impact of the injuries caused (save for the permanent loss of vision on his right eye). In my view, the higher end of “greater harm” should be reserved for cases where not only are all three primary harm factors engaged, but there is adequate evidence presented on:

(a)     the extensive or long-lasting suffering or impact on the part of the victim,

(b)     the complicated surgical procedures which the victim has to undergo, and/or

(c)     the victim’s injuries being medically assessed at some point to be life-threatening (eg, if there is a need for the victim to be warded in the ICU).

47     Given that, in the present case, the Victim’s injuries were all treated conservatively, and the length of hospitalisation leave, whilst long, was not inordinately long, I was of the view that harm in the present case should be pegged at the lower end of “greater harm”. In my view, this assessment is consistent with the High Court’s holding that the calibration of harm must be based on a “holistic assessment of the harm caused” (Chen Song at [127]).

Assessing the level of culpability

48     In relation to the Accused’s culpability, parties were aligned that there was only one offence-specific culpability factor, which is that the Accused had flouted traffic rules by driving across the chevron marking (dividing the expressway and the exit) after he had collided with the Victim. I accepted this as a relevant culpability factor, above and beyond the Accused’s inconsiderate act of using the same lane to overtake the Victim’s motorcycle, which was the gravamen of the charge. The fact that the Accused ended up crossing the chevron marking was evidence of the extent of his failure to appreciate that he might have insufficient time and space to overtake the Victim safely and legally, thus enhancing his culpability. At the same time, I also could not ignore the fact that the Accused had crossed the chevron marking only after he had applied his brakes (to avoid a collision with the Victim) and his collision with the Victim’s motorcycle. This was therefore not a case where the flouting of a particular traffic rule (ie, driving across a chevron marking) could be said to have caused the accident. Rather, it merely accentuated the Accused’s inconsiderate act of attempting to overtake the Victim when there was insufficient time and space for him to do so.

49     Had I only considered the aforementioned factor as presented above, I would have agreed with the Prosecution to calibrate the Accused’s culpability at the moderate end of “lower culpability”, which would have been fair and appropriate. However, I came to a different conclusion after considering the Victim’s manner of riding, which in my view did have a “direct bearing on the culpability” of the Accused.

50     In Chen Song at [133], the High Court held as follows:

Finally, in assessing the offender’s culpability, it is also important for the sentencing court to be alive to the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness. The conduct of the victim or third parties may in certain circumstances be considered at this juncture in the calibration of the offender’s culpability. This was elaborated on in Guay Seng Tiong Nickson v Public Prosecutor [2016] 3 SLR 1079 (“Nickson Guay”). Following a survey of the positions in several foreign jurisdictions, the court in Nickson Guay concluded that in Singapore, “where the conduct of the victim or a third party has a direct bearing on the culpability of the offender, it should, in keeping with the principle of proportionality, be taken into account when determining the sentence to be meted out” [emphasis added] (at [65]). In the context of careless driving offences, the moral culpability of the offender is usually linked to the extent that the offender’s driving had fallen below the standard of a reasonably competent driver who ought to have exercised due care and attention and reasonable consideration to other road users. This can in some circumstances be affected by the behaviour of the victim or a third party (at [65]). However, the fact that the negligence (or otherwise) of the victim or a third party was a contributory cause of the accident should not, without more, be taken into account as a mitigating factor (at [68] and [70]).

51     Having studied the video footage tendered by the Prosecution carefully, I was of the view that prior to the collision, the Victim did not appear to have been riding his motorcycle in the most considerate manner, and the Accused’s culpability should be assessed with this factor being given its proper weight. I elaborate further as follows.

52     The video footage begins (at the “0 second” mark) with the Accused behind the Victim at lane 2, with the Victim’s right indicator light already turned on:

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53     As can be seen from the screenshot above, even though his right indicator light was turned on, the Victim was positioned in the middle of lane 2. The Victim continued riding his motorcycle in this manner (ie, with his right indicator light turned on, but his motorcycle positioned in the middle or closer to the left of lane 2) for at least 21 seconds, as can be seen from the screenshots below:

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54     This was despite the fact that around the “17 seconds” mark, the witness (from whom the video footage was obtained) could be seen slowing his vehicle down (in lane 1) to make a lane change from lane 1 to lane 2 to be behind the Victim. In these circumstances, there would have been sufficient time and space for the Victim to make a lane change to lane 1 had it been his intention to do so in order to exit the expressway moments later. However, the Victim continued riding in the middle of lane 2 for a few more seconds as can be seen in the screenshot above (taken at the “20 seconds” mark). All of these would have been witnessed by the Accused, who was driving behind the Victim at all material times.

55     It was only around the “22 seconds” or “23 seconds” mark where the Victim could be seen attempting to make a lane change:

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56     In my view, the Victim’s riding behaviour during this period was less than ideal, as it would have confused drivers who were driving behind or alongside him whether he was in fact serious about making a lane change, let alone whether he was even planning to exit the expressway on the right. This is because he had not attempted to make a lane change for a significant period of time (ie, 22 seconds) even though there were ample opportunities for him to do so, despite his right indicator light being switched on.

57     In paragraph 145 of the Riding Theory Booklet (see above at [29]), motorcyclist riders are reminded as follows:

You must not change lanes suddenly as you may inconvenience or endanger other motorists. When changing lanes, give sufficient warning of your intention. Always signal at least 3 seconds in advance. Failure to do so could cause an accident.

Well before you reach a junction, make sure that you get into the correct lane for whichever direction you wish to take.

[emphasis added]

58     Even though the accident did not occur at a junction, I found myself in agreement with the Defence that the Victim could have attempted a lane change much earlier or at least given a clearer visual indication to those around him that he was serious about doing so, especially since his intention was not only just to travel on lane 1 but to exit the expressway on the right of lane 1.

59     In my view, this indecision or even inattention by the Victim likely contributed to the error of judgment on the part of the Accused, in that the Accused could have wrongly presumed that even though the Victim had eventually changed lanes in front of him, the Victim was only going to stay in lane 1 but was not going to veer further right to exit the expressway, given his prior riding behaviour. To be clear, this does not detract from the gravamen of the charge, which is that the Accused should in any case not have attempted to overtake the Victim when the Victim was already travelling on the same lane ahead of the Accused. That said, even though the Accused had fallen below the standard required of him, I found that the Victim’s manner of riding did contribute to the Accused’s wrongful assessment of the Victim’s intention, which had a bearing on the Accused’s misguided attempt of overtaking the Victim without due care and attention.

60     In the circumstances, I could not agree with the Prosecution that the Victim’s manner of riding had no relevance or bearing on the Accused’s culpability. To use a counterexample, suppose the Victim had moved into lane 1 much earlier and continued veering right which would clearly signal his intention to exit the expressway. In this hypothetical scenario, had the Accused committed the exact, same act of inconsiderate driving, the Accused’s culpability would surely have to be calibrated much higher. This is because in the hypothetical scenario, it would have been abundantly clear to the Accused (and all other road users) that the Victim was intending to exit the expressway on the right and would be veering further right to do so, such that it would be much more blameworthy for the Accused to attempt to overtake the Victim on the right. Returning to the actual facts of the present case, since it was likely unclear to the Accused whether the Victim was going to exit the expressway on the right at the point the Accused made his ill-informed decision to overtake the Victim, I was of the view that the Accused’s culpability should be proportionately lowered.

61     For the foregoing reasons, I was of the view that the Accused’s culpability fell below the moderate end of “lower culpability”, and should be pegged at the lower end of “lower culpability” instead.

Indicative starting point sentence

62     Given my assessment that the harm was at the lower end of “greater harm”, and the Accused’s culpability at the lower end of “lower culpability”, I arrived at my preliminary conclusion that the indicative starting point sentence (had the Accused been convicted after trial) would be around 7 months’ and 2 weeks’ imprisonment. This is a sentence which is situated in the mid-range of the lower half of Band 2 of the Chen Song sentencing framework.

63     In my view, this was an appropriate starting point because it was much higher than the sentence at the lowest end of Band 2 of the Chen Song sentencing framework (ie, 6 months’ imprisonment), accurately reflecting that the present offence was definitely not one situated at the lowest end of “greater harm” or “lower culpability”. At the same time, it was also proportionately pegged at a quantum which was premised upon a “holistic assessment” of the harm suffered by the Victim, and a careful consideration of the behaviours of both the Accused and Victim leading up to the accident. Ultimately, I could not agree with the Prosecution’s proposed indicative starting point sentence of 10 to 12 months’ imprisonment because the Prosecution’s calibration appeared to be premised on harm being situated at the highest end of “greater harm”, and the Victim’s driving behaviour having no relevance or bearing in the assessment of the Accused’s culpability.

Calibrating the eventual sentence

64     In terms of the offender-specific factors, I agreed with parties that the only relevant factor to consider is the Accused’s plea of guilt. I also agreed with the Prosecution that given the procedural history of this matter (see above at [23]), this was a case falling within stage 2 of the SAP Guidelines; and that ordinarily, the court would factor into consideration a maximum reduction of the sentence by only 20%.

65     That said, I appreciated the Defence Counsel’s candid admission that it was a mistake on his part for not formally indicating that the Accused was going to plead guilty earlier when the Defence was waiting for the expert report (see above at [31]). I also observed that this was not a case where “public resources on the part of the law enforcement agency, [the] prosecution, and [the Court]” (SAP Guidelines at [4(b)]) had to be significantly expended or wasted as a result of the Accused’s decision to plead guilty outside of stage 1. There were only four court mentions prior to the Defence’s election to plead guilty, and a significant bulk of the time which elapsed was spent by the Defence sourcing and waiting for the expert report.

66     Therefore, I was of the view that while the full 30% reduction of sentence should not be granted to the Accused as he had not elected to plead guilty during stage 1, a reduction above 20% could still be justified, having also considered the Accused’s remorse and his otherwise unblemished driving record. Besides having to lose his liberty for a substantial period of time, the Accused was also at risk of losing his livelihood and having to relocate his entire family, all as a result of his moment of folly or impatience on the road on that fateful day.

67     For all of the foregoing reasons, I was of the view that it was appropriate for the indicative starting sentence of 7 months’ and 2 weeks’ imprisonment to be reduced to 5 months’ and 2 weeks’ imprisonment, with the DQ order of 5 years to take effect upon the Accused’s release from prison.

Conclusion

68     In my view, the sentence I have imposed is derived from a faithful application of the Chen Song sentencing framework. The sentence is also severe enough to send a clear message on the importance of considerate driving; and the pain or tragedy which can result by a momentary loss of concentration or patience whilst on the road. It is the hope of the Court that both the Accused and the Victim will learn and recover from this painful episode, and successfully rebuild their lives with the support of their loved ones in the years to come.

69     The Accused is currently on bail pending appeal.

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Public Prosecutor v Koh Kim Swee
[2024] SGDC 257

Case Number:District Arrest Case No 914848 of 2023 & ors, Magistrate's Appeal No 9087-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kamala Ponnampalam
Counsel Name(s): Ms Claire Poh (Attorney-General's Chambers) for the Public Prosecutor; Accused In Person.
Parties: Public Prosecutor — Koh Kim Swee

Criminal Procedure and Sentencing – Sentencing – Whether sentence of seven years’ Preventive Detention was manifestly excessive

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9087/2024/01.]

30 September 2024

District Judge Kamala Ponnampalam:

1       This is an appeal against sentence by the Accused.

Introduction

2       The Accused is Koh Kim Swee (“the Accused”), a male, Singaporean, aged 38 years. He pleaded guilty to the following charges.

DAC 914848-2023:

…you, are charged that you on or about 17th September 2023 at about 1.21am at Apt Blk 287B Jurong East Street 21 #XX-XXX, Singapore (“the unit”), committed mischief by fire, knowing it to be likely that it will cause damage to the metal gate and wooden door of the unit, to wit, by placing a cloth below the gate of the unit and tying a cloth around the metal gate and setting the cloths on fire, and you have thereby committed an offence punishable under Section 435 of the Penal Code 1871.

DAC 920782-2023:

…you, are charged that you, on 04 September 2023, at or about 5.30pm, at 20 Buangkok View Singapore 534194, Institute of Mental Health Ward 32A, did voluntarily cause hurt to one male victim, Tiong Hoe Chin, to wit, by punching the victim on the left side of his face twice intending to cause him hurt, and you have thereby committed an offence punishable under Section 323 of the Penal Code 1871.

3       A third charge was taken into consideration for purposes of sentencing.

DAC 920783-2023:

…you, are charged that you, on 04 September 2023, at or about 5.30pm, at 20 Buangkok View Singapore 534194, Institute of Mental Health Ward 32A, did use criminal force on one victim, Imperial Rex Reyes, to wit, by spitting saliva on the right side of the said victim’s face, and you have thereby committed an offence punishable under Section 352 of the Penal Code 1871.

4       The Accused was sentenced to seven years’ Preventive Detention. The Accused being dissatisfied with the sentence imposed, has filed this appeal.

The Statement of Facts

5       The Accused admitted to the following Statement of Facts without qualification.

(a)     The Accused is Koh Kim Swee. He is a Singapore Citizen, NRIC No. SXXXX078J. His date of birth is 28 May 1986 and at the material time he was 37 years old. The Accused’s parents stay at Block 287B Jurong East Street 21, #XX-XX, Singapore.

FACTS PERTAINING TO THE 1ST CHARGE UNDER SECTION 435 PENAL CODE 1871- DAC-914848-2023

(b)     One of the victims in this case is Rachel Lee Ping Ping (“Rachel”). She stays at Block 287B Jurong East Street 21 #XX-XXX, Singapore (“the unit”) with her two sons aged 22 and 24 years old. Rachel is the owner of the unit. At the material time, the three of them were in the unit.

(c)     On 17 September 2023 at 1.27am, one of Rachel’s sons called ‘999’ with the following message, “THERE IS A FIRE OUTSIDE MY DOOR. I THINK THEY BURNING MY DOOR. THERE IS SMOKE. I CAN SEE THE FIRE VIA THE REFLECTION ON THE FLOOR”. The incident location was the victim’s unit. Police and SCDF Fire Fighting resources were dispatched.

(d)     Investigations revealed that on 1 March 2022, the Accused wanted to take revenge on Rachel’s family as one member of the family had slammed the door. On 2 March 2022, between 12 midnight and 1am, he approached the victim’s unit and started a fire at the gate of the said unit. This was done with intention to destroy and damage the gate and door to the unit. The Accused was subsequently convicted under s 435 of the Penal Code 1871 for his actions and sentenced to 18 months’ imprisonment (with effect from 2 March 2022) on 19 August 2022. The Statement of Facts which the Accused pleaded guilty to for this conviction is at Annex A .

(e)     The Accused was released from Prison on 4 April 2023. He applied for a rental flat. He was warded in Institute of Mental Health for some time in September 2023. Thereafter, he resided at a hotel at Geylang until 16 September 2023. The Accused did not extend his stay at the hotel as he did not have sufficient funds. Around this time, the Accused felt a grudge towards the members of Rachel’s family and decided to take revenge on them.

(f)     On 16 September 2023, sometime in the evening, the Accused went to a nearby hardware shop to buy two cans of Zippo lighter fluid at $5 each, a lighter, two mini cloths and a mini screw driver with the intention to commit the same crime as described in [d].

(g)     On 17 September 2023, at about 1.21am, the Accused went to the unit. He placed one cloth below the metal gate and tied another cloth on the metal gate. Thereafter, he lighted the cloths. The Accused then splashed the contents of the two cans of Zippo lighter fluid against the cloths to increase the scale of the fire. He then left the scene. Subsequently, one of Rachel’s sons smelled smoke from the fire. He also saw that there was a red light coming from the gap of the main door on the floor. He called the police as per [c].

(h)     The Accused then went to eat some food at Blk 345 Clementi Avenue 5 before heading to Clementi Police Division at about 2am on 17 September 2023 to surrender himself for setting fire to the main door of the unit. He was arrested thereafter.

(i)     The fire died down before the police and SCDF arrived. However, part of the main door, metal gate and the concrete pavement outside the door was burnt. Two photographs of the main entrance of the unit after the fire was put out are at the Appendix . Rachel sold the unit soon after. She compensated the new owner $988.00 for the damage on the front door and metal gate.

(j)     The Accused had placed one cloth below the gate of the unit and tied another cloth on the metal gate. He then set the cloths on fire knowing that it was likely that this would cause damage to the metal gate and wooden door of the victim’s unit. In doing so, he had caused a change to the metal gate and wooden door of the unit as diminishes their value. The Accused had done so knowing that he would cause wrongful loss to the owner of the unit. He has thereby committed mischief by fire which is an offence under s 435 Penal Code 1871.

FACS PERTAINING TO THE 2ND CHARGE UNDER DAC-920782-2023

(k)     The victim in this case is Tiong Hoe Chin (male/25 years old at the material time). He has bipolar disorder.

(l)     The Accused was warded in IMH located at 20 Buangkok View, Singapore on 4 September 2023. The victim was also warded in IMH at this time in the same ward (Ward 32A) as the Accused. At the material time, the victim was restrained to his bed.

(m)     At about 5.30pm, in Ward 32A, the Accused and the victim had an argument over another patient who was screaming and shouting. The Accused initially walked away. However, he returned to the victim’s bed and intentionally punched the victim on the left side of his face at least twice intending to cause the victim hurt. The victim felt pain on his face as a result. Some nurses attended to the victim and pulled the Accused away. The Accused was not provoked to cause hurt to the victim.

(n)     The Accused, by punching the left side of the victim’s face at least twice has committed the offence of voluntarily causing hurt under s 323 of the Penal Code 1871.

Annex A

6       Statement of Facts for the Accused’s prior similar conviction.

INTRODUCTION

(a)     The accused is Koh Kim Swee, a 36-year-old male Singaporean bearing NRIC No. SXXXX078J.

(b)     The victim is Rachel Lee Ping Ping, 45-year-old female Singaporean.

FIRST INFORMATION REPORT

(c)     On 2 March 2022, at about 2.07 am, the accused informed the Police that he wanted to surrender himself as he had set fire to a housing unit.

FACTS RELATING TO THE CHARGE – DAC-903350-2022

(d)     On 1 March 2022, the accused was staying in a Geylang hotel and decided that he wanted to take revenge on the victim’s family. The accused’s parents were the neighbours of the victim’s family. The accused admitted that he wanted to take revenge on the victim’s family as one member of the victim’s family had slammed the door when the accused’s mother was going out of her house. The victim was residing at Blk 287B Jurong East Street 21, #XX-XXX, Singapore (“the incident unit”) while the accused’s parents were residing at Blk 287B Jurong East Street 21, #XX-XXX, Singapore.

(e)     On the same day, sometime at night, the accused went to a shop located in the western region of Singapore. He purchased two bottles of refillable zippo fuel, a set of towels and two lighters.

(f)     The accused then took a Grab vehicle to the block of the incident unit. On 2 March 2022, between about 12am and 1am, the accused approached the said unit with all the items that he had earlier purchased. He then placed some white towels on the gate of the incident unit. He then squeezed some zippo fuel onto the towels and lighted the towel. He stood a distance away to see the fire burning but he was not satisfied that the fire was not big enough. He approached the gate of the incident unit a few more times to squeeze more zippo fuel onto the towels so that the fire would become bigger. He admitted that he intended to destroy and damage the gate and door of the incident unit. The victim, her father and the victim’s two sons were sleeping in the unit at the material time and were unaware of what was going on outside.

(g)     The accused then took a Grab vehicle to Cantonment Police Complex and surrendered to the Police. The Police immediately activated Police officers. The Police officers went to the incident unit and informed the victim’s family of the incident. The fire had stopped by then. The fire caused damage to incident unit’s door and gate.

(h)     The victim made repairs for the said damages and the total cost of repair amounted to $230. The accused did not make any restitution to the victim’s family.

(i)     The accused was placed under arrest on 2 March 2022 and charged in Court on 3 March 2022.

(j)     By virtue of the foregoing, the accused had committed mischief by fire, intending to cause damage to property by using a lighter to set fire to fuel-doused towels which he had placed on the gate of the incident unit, resulting in damage to the door and gate of the incident unit. The accused had committed an offence punishable under Section 435 of the Penal Code 1871.

Appendix

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Antecedents

7       The Accused has shown a proclivity for violence related offences. He was first convicted of the offence of committing mischief by fire in 2002 and then again in 2022. He faces a similar charge in the present case. He has also been convicted of several other violence related offences – (1) three counts of voluntarily causing hurt by dangerous weapons or means, (2) two counts of carrying offensive weapons in public places, (3) one count of doing a rash act which endangers life or the personal safety of others, (4) one count for being armed with instrument for shooting, stabbing or cutting, or offensive weapon, and (5) one count of using indecent, threatening, abusive or insulting words or behaviour towards a public servant. The Accused’s antecedents are summarised below:

S/N

Date of Conviction

Offence (Conviction & TIC)

Global Sentence

1

13.03.2002

S. 435 C. 224

S. 435 C. 224

S. 336 C. 224

Juvenile Home 27 Months

2

17.08.2005

S. 379 C. 224 r/w S. 511 C. 224

S. 379 C. 224 r/w S. 511 C. 224

S. 6(1) C. 65

S. 380 C. 224

S. 6(1) C. 65

S. 30(1) C. 107

S. 30(1) C. 107

S. 30(2)(a) C. 107

Reformative Training Centre

3

07.05.2008

S. 324 C. 224

15 Months Imprisonment

4

11.05.2010

S. 324 C. 224

30 Months Imprisonment With 6 Strokes Caning

5

08.10.2013

S. 324 C. 224

5 Years Corrective Training

6

03.11.2021

S. 6(1)(a) C. 256A P/U S. 6(3) C. 256A

S. 453(1)(a) C. 224

3 Weeks Imprisonment

Taken Into Consideration

7

29.07.2022

S. 435 Penal Code 1871

18 Months Imprisonment



Prosecution’s submissions on sentence

8       Prosecution urged the Court to call for a Preventive Detention (“PD”) suitability report on grounds that the public requires protection from the Accused. A Pre-Sentencing Report for Corrective Training and Preventive Detention was called for.

The PD Suitability Report

9       The Accused was assessed suitable for both Corrective Training and Preventive Detention (“PD”). The Prison Medical Officer’s and the Psychiatrist’s Medical Memorandum certified that the Accused was generally in good physical condition with no known major illnesses and in a stable mental condition with his Adjustment Disorder and his Anti-Social Personality Disorder controlled with medications.

10     The Risk Assessment Report noted an Antisocial Pattern in the Accused’s offending history. It was stated that the Accused presented with behavioural problems at a young age with an early onset of defiant behaviours and unlawful transgressions from under the age of 16. His antisocial and violent behaviour patterns were pervasive across different domains of his life. Specific to his violent behaviours, they comprised a combination of pre-meditated violence, as well as violence arising due to his poor frustration tolerance.

11     It was noted that the Accused’s past violent offences between 2008 and 2021 against his friend, his mother, police officer, and his current offences in 2023 against an IMH patient and IMH nurse were indicative of his inability to manage his frustrations towards them effectively. In contrast, his past action of setting a fire to his parents’ neighbour’s house (2022 – Mischief) was a calculated decision to intimidate the victim. The Accused stated that he initially wanted to “kill her” (the neighbour) as she caused his mother distress and he had grudges against her for reporting him to the police for loitering However, he decided against it as he knew he would “get the gallows”. Hence, he intentionally chose to set fire instead as he knew he would not get a long sentence.

12     Information from the 2023 IMH report also indicated that his current Mischief offence against the same victim was similarly premeditated. He planned to commit the offence to incarcerate himself to bide time to continue getting his allowance while incarcerated, to repay his outstanding loan from his gambling.

13     Beyond violence, the Accused also presented with a long history of involvement in antisocial behaviours for pleasure and financial gain, and since 2019, employed maladaptive means of turning to substance abuse to relieve stress and to alleviate his low moods.

14     It was reported that the Accused presented with thinking patterns which were supportive of crime and unfavourable towards convention. He was callous in his narration of his recent offences and his narratives were indicative of his deflection of personal responsibility. He blamed the neighbour for antagonising his family and attributed his fire-setting to his diminished mental state from his overdose of IMH psychiatric medication. His justification of his offences was also evident where he blamed the IMH nurse for staring at him “like a hooligan” which led him to spit at him (2023 – Use of Criminal Force). He also presented with minimal personal responsibility and a trivialisation of his actions which was evident in his repeated emphasis that he should be given lenience as he surrendered himself after setting the fire, and that the fire had “extinguished on its own” and was “not very serious”.

15     It was further noted that the Accused’s differing accounts of his offence and other details of his life (e.g., gambling habits, employment, involvement with peers) were also indicative of a consistent pattern of untruths and deceit. For instance, in the interview he mentioned that he had been in an overdosed state when he set the fire and had done so as he was in a ruminative “downtrodden” state where he had been hearing voices of the victim humiliating him. However, information from the IMH report stated that the Accused had wanted to go to prison so that he would continue getting an allowance from the Social Service Office and his parents in order to repay a debt of $3000. The report also indicated that the Accused had overdosed after he had set the fire.

16     The report concluded that based on Singapore’s norms, the Accused’s LS/CMI score placed him in the High Risk/Need level of criminal re-offending. Overall, the Accused appeared to be unfavourable towards convention. He presented with weak association to conventional settings such as family and employment, high tolerance of violence and antisocial behaviours and activities such as gambling, drug peddling, association with street gangs and selling of vapes, an inability to comply with rules and regulations as evidenced by numerous past institutional violations and community supervision breaches.

17     Based on the HCR-20v3 the Accused’s risk of violent re-offending was assessed to be in the High range, due to his permissive attitudes towards violence, poor frustration tolerance, and the presence of Anti-Social Personality Disorder traits. Specifically, he presented with a consistent pattern of blaming the victims or extenuating situations and presented with little insight into the causes for his perpetration of violence. There were no protective factors assessed for the Accused.

Prosecution’s further submissions on sentence

18     The Prosecution submitted for a sentence of Preventive Detention (“PD”) with the length to be left to the court. The Prosecution had no objections to the sentence being backdated to the Accused’s date of arrest on 17.09.2023.

19     The Prosecution stated that the threshold requirements for the imposition of PD was satisfied. 1) The offender was above 30 years of age. 2) The offender stood convicted of an offence punishable with imprisonment for 2 years or more. The proceeded charges were for offences under s 435 of the Penal Code which is punishable for up to 7 years’ imprisonment and s 323 of the Penal Code which is punishable for up to 3 years imprisonment. 3) The offender has been convicted at least three times since he reached 16 years of age for offences punishable with 2 years’ imprisonment or more.

20     The Prosecution argued that it was expedient to protect the public from the Accused’s behaviour in view of his lengthy list of violent antecedents. For the offence under s 435 of the Penal Code, the Accused committed the same offence (i.e. setting fire to the same victim’s door) less than six months after being released from prison. For his conviction in 2022, the sentencing judge had already called for a Corrective Training/Preventive Detention Report giving the Accused fair warning that a Preventive Detention sentence would be the likely outcome for a future offence but the Accused remained undeterred.

21     The Prosecution pointed out that the Accused has been assessed to be at a high risk of recidivism. He has shown himself to be such a menace to society that a substantial period of incarceration is merited. There were no special reasons militating against a PD sentence.

Mitigation

22     In his oral Mitigation plea, the Accused stated that he is remorseful and repentant. He acknowledged that it was a similar offence to his immediate past conviction. Nonetheless, he pleaded for compassion and mercy. He stated that his parents are old and his mother suffers from schizophrenia. As their only child he needs to take care of them. He informed that after his release from prison, he plans to change for the better. He will travel to China to join his grandparents there to start his life afresh.

23     The Accused stated that he had overdosed himself on his psychiatric medicine prior to committing the offences. He was depressed and stressed because he was unemployed and penniless. As a result of the overdosing, he had severe delusion and hallucination and was not in the proper state of mind. It was not a premeditated offence. The overdosing was also the reason why he surrendered himself at the police station.

24     Following his arrest at the police station, he suffered a seizure and had to be hospitalised for treatment. He was subsequently remanded in IMH.

25     With respect to the Prosecution’s submission for a term of PD, the Accused argued that it was a severe and disproportionate sentence. The were no casualties from his offending and so a PD sentence was not warranted.

Psychiatric assessment of the Accused

26     Following his arrest, the Accused was remanded at IMH from 22.09.2023 to 02.10.2023 for psychiatric observation. In the report dated 26.09.2023, the psychiatrist, Dr Lim Cui Xi, documented the following.

27     The Accused was first seen in IMH at the age of 10 for behavioural problems. At the age of 15 he was diagnosed with Obsessive Compulsive Disorder. The enduring diagnosis since then however, has been that of Anti-Social Personality Disorder.

28     The Accused had been admitted to IMH numerous times in the past, the most recent was from 25.08.2023 to 05.09.2023. The majority of the admissions were in the context of his homelessness. He would threaten suicide or become aggressive if denied admission. He had also been remanded in IMH on a few occasions for varied offences, including torching a rubbish chute (2002), stabbing his mother (2010) and slashing his godfather (also an IMH patient) with a knife (2013). He claimed that at other times he was remanded in Complex Medical Centre at Changi Prison, as that was his preference. The Accused added that he had been imprisoned seven times for causing grievous hurt with dangerous weapon, arson, forgery and manslaughter.

29     The Accused denied alcohol use. However, he stated that he started taking Methamphetamine in 2019 with his girlfriend before she was arrested in 2020. He took Methamphetamine daily for a year. He would then feel paranoid and hear voices. Since his recent release from prison, he only took 5g of Methamphetamine twice a week for work performance from April to August 2023. He did not have any psychotic symptoms. The Accused stated that he had tried Ketamine and Ermin about twice or thrice in the past. During the COVID lockdown in 2020, he started to gamble online out of boredom. He would gamble daily. Since his prison release in 2023, he went to the casinos weekly. He admitted that he lost more than he won. He would attempt to cut losses rather than chase losses. He would avoid borrowing money from others. He only borrowed from licensed moneylenders. At present, he owed $3000. He would try to make money by selling cough syrup in addition to his job as a fork lift driver.

30     The Accused stated that he had committed an offence similar to the one which he had committed last year. This was his parent’s neighbour who was his enemy. This neighbour had a feud with his mother although he was unsure of the details. He hated this neighbour because this neighbour had reported him to the police for loitering near his parent’s place. Hence, he committed arson in the previous year. On this occasion, he decided to commit the offence as he felt that he could repay his $3000 loan by going into prison. He would not spend money in prison but would still continue to receive monthly allowance from his parents and financial assistance from the Social Service Office.

31     During the first interview, the Accused said that prior to committing the offence, he went to see his parents to warn them that he would be going to prison. After he had committed the offence, he realized that he would also encounter issues in prison. That was when he decided to overdose on over 20 tablets of Sulpiride with green tea to try to end his life. The Accused had obtained Sulpiride during his last admission in IMH but he did not take the Sulpiride as prescribed. He denied hearing voices and having suicidal ideation after his discharge. At the time of the interview, the Accused said that he no longer heard voices or had suicidal thoughts.

32     In the second interview, the Accused stated that a few hours before the offence, he went to the hardware shop to buy a lighter, two pieces of cloth (pink and blue), two bottles of flammable gas and a screw driver. He hid near a rubbish chute next to the 7-11 store and waited till there was no one around. He then went up to his parents’ block at about 1 am. He deliberately took the lift up to the 20th floor and placed his belongings near the stairs. He went to the victim’s unit and opened the flammable gas bottles with the screw driver. He placed the two pieces of cloth at the gate and lit them up with the lighter. The flame was small, so he threw more flammable gas on the cloths and there was an explosion. He left the scene and disposed the items.

33     Subsequently, he booked a Grab car to Clementi Police Station to surrender. During the car journey, the Accused overdosed on over 20 tablets of Sulpiride with green tea as he claimed that he wanted to die. When asked why he had surrendered to the police, the Accused said that the overdose would not kill him. When he reached Clementi, he had some food at a coffeeshop before going to the Clementi Police Station to surrender.

34     The Accused was observed to be calm and euthymic but impatient at times. He was coherent and relevant. He was not psychotic or suicidal. The nurses reported that on 24.09.2023, he scolded vulgarities, kicked the door and tried to provoke the ward staff.

35     The psychiatrist opined that the Accused a) had Anti-Social Personality Disorder at the time of the alleged offences, b) was not of unsound mind at the material time, c) was fit to plead in the court of law, and d) with his history of pronounced violence and his Anti-Social Personality Disorder, his risk of reoffending is high.

36     In a clarification report dated 08.02.2024, the psychiatrist stated that there was no causal link between his Anti-Social Personality Disorder and the offence. It does not affect his ability to exhibit self-control. In fact, he chose to commit the offence as he wanted to be imprisoned again.

Decision on Sentence

37     In assessing whether PD ought to be imposed, I considered the technical requirements and the substantive requirements prescribed in the governing provision, section 304(2) of the Criminal Procedure Code 2010 (“CPC”). S 304(2) CPC provides as follows:

(2)     Where a person 30 years of age or above —

(a)     is convicted before the General Division of the High Court or a District Court of an offence punishable with imprisonment for 2 years or more, and has been convicted in Singapore or elsewhere at least 3 times since he or she reached 16 years of age for offences punishable with such a sentence, and was on at least 2 of those occasions sentenced to imprisonment or corrective training; or

(b)     is convicted at one trial before the General Division of the High Court or a District Court of 3 or more distinct offences punishable with imprisonment for 2 years or more, and has been convicted and sentenced in Singapore or elsewhere to imprisonment for at least one month since he or she reached 16 years of age for an offence punishable with imprisonment for 2 years or more,

then, if the court is satisfied that it is expedient for the protection of the public that the person should be detained in custody for a substantial period of time, followed by a period of supervision if released before the expiry of his or her sentence, the court, unless it has special reasons for not doing so, must sentence him or her to preventive detention for a period of 7 to 20 years in lieu of any sentence of imprisonment, or any sentence of imprisonment and fine.

The technical requirements

38     The technical requirements were met in the present case.

(a)     The Accused is above 30 years of age. He was born on 28.05.1986 and was 37 years old at the time of his conviction and sentencing for the present set of offences before a District Court.

(b)     The present set of offences are punishable with imprisonment for two years or more. The offence under S 435 of the Penal Code 1871 is punishable with imprisonment for a term which may extend to seven years, and the offence under S 323 of the Penal Code 1871 is punishable with imprisonment for a term which may extend to three years.

(c)     The Accused has been convicted in Singapore at least three times since he reached 16 years of age for offences punishable with imprisonment for two years or more. These would include the three convictions for voluntarily causing hurt by dangerous weapons or means under S. 324 of the Penal Code (Cap. 224), in 2008, 2010, and 2013.

(d)     On at least two of those occasions the Accused was sentenced to imprisonment or corrective training. The Accused was sentenced to 15 months’ imprisonment in 2008, 30 months’ imprisonment with six strokes of the cane in 2010, and five years’ Corrective Training in 2013.

Whether it is expedient to order PD

39     Next is the substantive issue of whether it is expedient for the protection of the public to impose an order of PD.

40     In PP v Syed Hamid Bin A Kadir Alhamid [2002] SGCA 40, the Court of Appeal at [10] summarised the principles of PD as follows:

A sentence of preventive detention is intended for habitual offenders, aged more than 30 years, whom the court considers to be too recalcitrant for reformation (see PP v Wong Wing Hung [1999] 3 SLR(R) 304). Preventive detention ought to be imposed if the accused has shown that he is such a menace to society that he should be incarcerated for a substantial period of time.

41     In PP v Rosli bin Yassin [2013] 2 SLR 831 at [11] the Court of Appeal elaborated that:

The overarching principle is the need to protect the public … Put simply, if the individual offender is such a habitual offender whose situation does not admit of the possibility of his or her reform, thus constituting a menace to the public (and this would include, but is not limited to, offences involving violence), a sentence of preventive detention would be imposed on him or her for a substantial period of time in order to protect the public. As Yong Pung How CJ put it in the Singapore High Court decision of PP v Wong Wing Hung [1999] 3 SLR(R) 304 (“Wong Wing Hung”) at [10], the “sentence [of preventive detention] is meant essentially for habitual offenders, who must be over the age of 30 years, whom the court considers to be beyond redemption and too recalcitrant for reformation ”. The court will look at the totality of the offender’s previous convictions. (see the Singapore High Court decision of Tan Ngin Hai v PP [2001] 2 SLR(R) 152 at [7]). [emphasis in original]

42     The High Court in Ravindran s/o Kumarasamy v PP [2023] 3 SLR 1343 provided guidance on how the sentencing court ought to view the offender’s conviction history. Hoong J held at [47]-[48] that the court in its assessment ought to consider the totality of the offender’s previous convictions against the circumstances of the present offence:

To summarise, if an individual offender is such a habitual offender whose situation does not admit of the possibility of his reform, thus constituting a menace to the public, a sentence of PD would appropriately be imposed on him for a substantial period of time in order to protect the public. In its assessment, the court will have regard to the totality of the offender’s previous convictions viewed together with the circumstances of the offender’s present offending.

Importantly, since a sentence of PD is underpinned by the need to protect the public, it differs from a sentence of imprisonment and different considerations may apply in determining the appropriate duration and implementation of the sentence. As Yong CJ explained in Public Prosecutor v Perumal s/o Suppiah [2000] 2 SLR(R) 145 at [38]:

In this regard, I must reiterate my earlier exhortation in PP v Wong Wing Hung … at [10] not to confuse the concept of preventive detention and imprisonment, which are distinct sentences and are underpinned by different objectives and rationales. The former is essentially aimed at the protection of the public while the latter reflects the traditional policies of prevention, deterrence, rehabilitation and retribution. They are different in duration, character and implementation. As such, it would be a mistake to view them as fungible sentences.

43     In summary, the following factors would be relevant in determining if PD is necessary for the protection of the public:

(a)     Whether the Accused is a habitual offender

(b)     The totality of the Accused’s previous convictions.

(c)     The circumstances of the present offence.

(d)     The Accused’s risk of re-offending in future

(e)     Whether the Accused has shown himself to be a menace to society

The Accused was a habitual offender

44     The Accused’s criminal record speaks volumes. He was first convicted and sentenced to the Juvenile Home on 13.03.2002, about two months shy of his 16th birthday. Thereafter, he re-offended regularly, often soon after he was released from prison.

45     In 2002, he was sentenced to 27 months in a Juvenile Home. He was convicted of his next offence on 17.08.2005 and was sentenced to Reformative Training. He must have re-offended within months of his release from the Juvenile Home.

46     On 07.05.2008, the Accused was sentenced to 15 months’ imprisonment for voluntarily causing hurt by dangerous weapons or means. He was next convicted on 11.05.2010 for a similar offence and sentenced to 30 months imprisonment with six strokes of the cane. He could not have been long out of prison before he had re-offended.

47     Three years later, on 08.10.2013, he was again convicted for voluntarily causing hurt by dangerous weapons or means and sentenced to five years’ Corrective Training. If he had been granted the standard remission in sentence, he would have been released sometime in 2012. Once again he had reoffended within months of his release from prison.

48     After serving his sentence of Corrective Training, the Accused would have been released from prison sometime in 2018. He was convicted for his next set of offences on 03.11.2021 and sentenced to three weeks’ imprisonment.

49     On 02.03.2022, within about three months from his release from prison for his prior conviction, the Accused committed the offence of mischief by fire. Annex A above refers. He was sentenced to 18 months’ imprisonment. He committed the present offences within five months of his release from prison. Without doubt, the Accused is a habitual offender.

The totality of the Accused’s previous convictions

50     The Accused’s criminal records also showed that his long list of prior convictions spanning over 20 years revealed a propensity to violence. He had two similar prior convictions for committing mischief by fire. He also had other violence related antecedents including voluntarily causing hurt by dangerous weapons or means and doing a rash act which endangers life or the personal safety of others.

51     Even after two lengthy incarceration terms for the violence-related offences – 30 months’ imprisonment and five years’ Corrective Training - the Accused remains undeterred. In fact, in recent years, he had reoffended with greater frequency and regularity, each time within a few months of his release from prison. On 03.11.2021, the Accused was sentenced to three weeks’ imprisonment. He committed his next set of offences almost immediately after his release from prison (within about three months) and was convicted and sentenced to 18 months’ imprisonment on 02.03.2022. Similarly, the present set of offences were committed within five months of his release from prison. The time over which the Accused remained crime free was decreasing demonstrating that the conventional terms of imprisonment had little effect on him.

The circumstances of the present offence

52     The present offences were again serious, violence related offences. In the first charge, the Accused had deliberately set fire to the front door of his neighbour’s unit which could have resulted in serious harm to the occupants within. It was purely fortuitous that the occupants were unharmed. In the second charge, the Accused had punched the victim on his face, a vulnerable part of his body, while the victim was restrained to his bed. Both offences were unprovoked. The first charge showed planned deliberation and a clear intent to cause harm. The second charge revealed unrestrained and unprovoked violence.

53     The circumstances of the offences also demonstrate the Accused’s cavalier disregard for the law. The offence in the first charge was committed whilst investigations must have been ongoing for the second charge, and similar to the previous offence of committing mischief by fire, the Accused elected to ‘self-report’ his offences to the police. He was clearly unafraid of the possible consequences of his crimes. Overall, the Accused’s offending conduct was escalating and recurring without respite. Specific deterrence becomes an important consideration in sentencing the Accused to protect the public from him.

The Accused’s risk of re-offending in future

54     The PD Suitability Report stated that the Accused presented with thinking patterns which were supportive of crime and was unfavourable towards convention. His LS/CMI score placed him in the High Risk/Need level of criminal re-offending. Based on his HCR-20v3 assessment, the Accused’s risk of violent re-offending was assessed to be in the High range, due to his permissive attitudes towards violence, poor frustration tolerance, and presence of Anti-Social Personality Disorder traits. Specifically, he presented with a consistent pattern of blaming the victims or extenuating situations and presented with little insight into the causes for his perpetration of violence. He did not present with any protective factors.

Whether the Accused had shown himself to be a menace to society

55     Having reviewed the Accused’s history of offending and the increased frequency of the offending, coupled with the escalation in the nature and the circumstances of the offending, it is evident that conventional terms of imprisonment have had no deterrent or rehabilitative effect on the Accused. His antisocial thinking and behaviour patterns have placed him at a high risk of violent reoffending. He is clearly a menace to society and poses such a grave threat to the public that he ought to be incarcerated for a substantial period. A term of Preventive Detention is warranted for the Accused.

Whether there were special reasons not to impose Preventive Detention

56     Section 304(2) CPC specifies that if the court is satisfied that it is expedient for the protection of the public to impose a term of PD, it should do so unless it has special reasons for not doing so.

57     The PD Suitability Report included the Psychiatrist’s and the Prison Medical Officer’s Medical Memorandum. The memorandum certified that the Accused was suitable for the PD regime. He was assessed to be in generally good physical condition with no known major illnesses and in a stable mental condition with his Adjustment Disorder and Antisocial Personality Disorder controlled with medications. There were no “special reasons” for not ordering a term of PD.

The appropriate length of Preventive Detention

58     Having determined that a term of PD is necessary, the next issue to be decided was the appropriate length of PD to be imposed on the Accused. It was observed by the court in PP v Rosli bin Yassin [2013] 2 SLR 831 (“Rosli”) that the principles underlying regular imprisonment differ from PD. At [12] the Court of Appeal held:

It is important, in this regard, to emphasise that a sentence of preventive detention is not the same as a sentence of imprisonment. As Yong Pung How CJ put it in the Singapore High Court decision of Yusoff bin Hassan and others v Public Prosecutor [1992] 2 SLR(R) 160 (“Yusoff bin Hassan”) at [11]:

Furthermore, corrective training and preventive detention are meant to supplant a sentence of imprisonment which would otherwise be ordered. These sentences are passed “in lieu of any sentence of imprisonment”. It would appear that the sentencing court should simply address its mind to the appropriate period of custody merited by the offences for which the offender has been convicted before it, and his criminal record. Provisions such as ss 17 and 18 [of the CPC] which relate to the ordering of consecutive or concurrent sentences of imprisonment clearly do not apply. I agreed with the submission of the learned DPP that corrective training and preventive detention should be ordered in lieu of the aggregate sentence of imprisonment which the court would otherwise have been minded to impose…

59     The same principles were further highlighted by the High Court in Sim Yeow Kee v PP [2016] 5 SLR 936 (“Sim Yeow Kee”) at [97]:

In the context of PD, general deterrence and the social value in keeping a hardened criminal out of circulation provide a legitimate basis and operative justification for the application of this regime. Thus, we consider that considerations of proportionality would not apply rigorously in such circumstances. Here too, these considerations would have limited scope for displacing the imposition of a term of PD where such a sentence would otherwise be warranted. However, we reject the notion that it has no application whatsoever.

60     In other words, once a court decides that PD is warranted, the conventional principles of deterrence, rehabilitation, and retribution become secondary to the predominant principle of the protection of the public.

A PD term of seven years would not be disproportionate

61     While per Sim Yeow Kee, considerations of proportionality do not apply rigorously, it would nonetheless be relevant to consider the likely term of imprisonment that the Accused would face in assessing the appropriate length of PD.

62     For the S 435 of the Penal Code 1871 offence, which is punishable with imprisonment for a term which may extend to 7 years, and also be liable to fine, the Accused was previously sentenced to 18 months’ imprisonment. The current offence targeted the same victim with the same intent to intimidate over a petty grievance. It was planned and premeditated – he had purchased the necessary materials, and it was cunningly executed in the stealth of the night when no one was around to alert or assist the victim. His PD suitability report revealed that the Accused expressed no remorse for his actions. He blamed the victim for antagonising him and his family which caused him to commit the offence. His IMH report disclosed his true intent for committing the offence. It was a cold and calculated plan to find the means to repay his debt. It is also noted that the offence was committed very soon after his release from prison. In view of the aggravating factors present, the principle of escalation would be triggered. A sentence of at least 36 months’ imprisonment would be warranted to reflect the Accused’s antecedents and the need for specific deterrence.

63     The S 323 of the Penal Code 1871 offence is punishable with imprisonment for a term which may extend to 3 years, or with fine which may extend to $5,000, or with both. Once again, the circumstances of the offence were aggravated. While the harm caused may have been slight, the Accused’s level of culpability was high. The victim being restrained in his bed was in a vulnerable position. The attack on the face was to a vulnerable part of the body. Against the background of the other transgressions during his IMH admission which were enumerated in the psychiatrist’s report, the Accused was deserving of a significant uplift from the usual tariff of around 6 weeks’ imprisonment to at least 12 months’ imprisonment.

64     As both offences arise from completely different transactions, the imprisonment terms would have run consecutively and the Accused would likely face a global imprisonment term of around 48 months’ imprisonment. Thus, the minimum PD term of 7 years’ imprisonment is entirely appropriate.

Backdating of the term of PD

65     Section 318(3) of the Criminal Procedure Code 2010 expressly permits a sentence of PD to take effect on a date earlier than the date the sentence is passed. Where an offender has been remanded in custody, under s 318(5), the court is required to take into consideration the date on which the offender was arrested for the offence and the length of the period for which the offender was remanded in custody. The court must then consider directing that the sentence of PD takes effect on a date earlier than the date the sentence is passed.

66     As the Accused had, at the time of sentencing, been remanded since the date of his arrest on 17.09.2023 for a period of about seven months, and as the Prosecution had no objections to the backdating of the sentence, I ordered that the sentence of 7 years’ PD be backdated to the Accused’s date of arrest on 17.09.2023.

Conclusion

67     The Accused was sentenced to seven years’ Preventive Detention which was backdated to the date of his arrest, 17.09.2023. Given the facts and the circumstances of this case, it cannot be said to be a manifestly excessive sentence.

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Public Prosecutor v S D Surentharan
[2024] SGDC 262

Case Number:District Arrest Case No. 913556 of 2024 & Ors
Decision Date:10 October 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jakki Lim (Criminal Investigation Department) for the Prosecution; Accused-in-Person.
Parties: Public Prosecutor — S D Surentharan

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Driving under Disqualification

Criminal Law – Motor Vehicles (Third-Party Risks and Compensation) Act

10 October 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mr S D Surentharan, pleaded guilty to two charges:

(a)     One charge of driving whilst under disqualification under s 43(4) of the Road Traffic Act 1961 (“the Act”) and

(b)     One charge of driving without insurance in respect of third-party risks under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 (“MV(TPR&C)A”).

2       For the sentence for s 43(4), this judgment examined various precedents, including Fam Shey Yee v Public Prosecutor [2012] SGHC 134 and Public Prosecutor v Peng Jianwen [2021] SGDC 93.

3       All things considered, the Accused was sentenced to:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months from the date of release.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 in default 2 days’ imprisonment and driving disqualification of 24 months from 15 August 2024.

4       I set out my reasons. There was no appeal.

Charges

5       The Accused pleaded guilty to the following charges:

You,

NAME : S D SURENTHARAN

SEX / AGE : MALE / 23 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 14th December 2022 at or about 2.00 pm, along Yishun Ring Road, Singapore, did ride motorcycle no. FBE589T, on a road, when you were under disqualification from holding or obtaining all classes of driving license for a period of twelve months from 9th September 2022 to 8th September 2023, you have thereby committed an offence of Section 43(4) punishable under Section 43(4)(a) of the Road Traffic Act 1961.[note: 1]

You,

NAME : S D SURENTHARAN

SEX / AGE : MALE / 23 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 14th December 2022 at or about 2.00 pm, along Yishun Ring Road, Singapore, did use motorcycle FBE589T, whilst there was not in force in relation to the user of the said vehicle, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of the Motor Vehicles (Third-Party Risks & Compensation) Act 1960, and you have thereby contravened Section 3(1) of the Act, which contravention is punishable under Section 3(2) and Section 3(3) of the Act.[note: 2]

Statement of facts

6       The Accused is S D Surentharan, male, Singaporean, 23 years old. He was the rider of motorcycle, FBE589T at the time of accident. The motorcycle FBE589T was a rented vehicle from Stars Rental & Leasing which the Accused rented from September 2022 to December 2022.[note: 3]

7       The involved party is Wen Jianping, male, Chinese, 37 years old. He was the driver of motor lorry, YP3610P at the time of the accident.[note: 4]

8       On 14 December 2022, at or about 2.00 p.m., along Yishun Ring Road, Singapore, the Accused was riding motorcycle FBE589T and was involved in an accident with the involved party, motor lorry YP3610P. The Accused was riding the said motorcycle with a pillion.[note: 5]

9       Investigations revealed that the Accused rode the motorcycle FBE589T while his driving licence was under disqualification for all classes of driving licence for a period of 12 months from 9 September 2022 to 8 September 2023 by the District Judge of Court No. 7B where he had been charged for an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 6]

10     As the Accused was riding the motorcycle FBE589T whilst under disqualification, there was no insurance policy or such a security in respect of Third-Party Risks as complies with the requirements of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 in relation to the use of the said motor vehicle by the Accused.[note: 7]

11     The Accused has thus contravened s 3(1)(a) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960 which is punishable under s 3(2) read with s 3(3) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 8]

12     By virtue of the foregoing, the Accused has committed the following offences:

(a)     Driving whilst under disqualification punishable under s 43(4)(a) Road Traffic Act 1961.

(b)     Use of motor vehicles without insurance coverage under s 3(1)(a) punishable under s 3(2) read with s 3(3) of the Motor Vehicles (Third-Party Risks and Compensation) Act 1960.[note: 9]

Prescribed punishment

13     The prescribed punishment for s 43(4) of the Act is:

(a)     A fine not exceeding $10,000, or

(b)     Imprisonment not exceeding 3 years, or

(c)     To both.

14     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44] (Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]).

15     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

16     The Prosecution asked for:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 and driving disqualification of 24 months.

17     For the s 43(4) offence, the Accused rode his motorcycle about 3 months after he had been disqualified from driving. He had a pillion rider. The Prosecution highlighted the case of Public Prosecutor v Peng Jianwen [2021] SGDC 93 where the High Court dismissed the offender’s appeal against the sentence for s 43(4) of 8 weeks imprisonment.

18     For the s 3(1) offence, the Accused had a prior antecedent in 2022 where he was fined $600 with a driving disqualification of 12 months.

Mitigation plea

19     The Accused had no mitigation plea.

Sentencing

The Law

(1)   Legislative intent of 43(4)

20     The punishment set out in s 43(4) for driving whilst under disqualification was enhanced in 1993, via the Road Traffic (Amendment) Act 1993 (Act 3 of 1993).

21     The Minister for Home Affairs, Professor S. Jayakumar, in moving the second reading of the Road Traffic (Amendment) Bill 1992 (Bill 37 of 1992), explained this enhanced punishment [Singapore Parliamentary Debates, Official Report (18 January 1993) vol. 60 at col 426-428]:

… There have been a number of cases ... where motorists who are disqualified by the courts from driving for committing a serious offence, have deliberately ignored the court’s prohibition and continued to drive. ...

According to the Traffic Police, there are more [of] such offenders, but it is not easy to catch them. The Traffic Police can detect them only when they are stopped for some traffic offence or when they are involved in an accident. I hope Members will agree that such a driver is really a menace to all other road users. He is, in fact, a lethal, unguided missile. Moreover, when he causes an accident, the victims will not legally be covered by insurance...

(see also Wilkinson’s Road Traffic Offences, Sweet & Maxwell (30th Ed, 2021, General Editor: Kevin McCormac) at [11-73]-[11-96]).

(2)   Precedents for s 43(4)

Fam Shey Yee v Public Prosecutor

22     In Fam Shey Yee v Public Prosecutor [2012] SGHC 134 at [12], the High Court stated that “the usual tariff (for s 43(4) of the Act is) four to eight weeks’ imprisonment”.

23      Fam Shey Yee’s tariff of 4 to 8 weeks’ imprisonment was cited by the High Court in Sheik Parvez Zunuas bin Shaik Raheem v Public Prosecutor [2022] SGHC 138 at [27], Public Prosecutor v Rizuwan bin Rohmat [2024] 3 SLR 694 at [62], and Seah Ming Yang Daryle v Public Prosecutor [2024] 4 SLR 1561 at [75].

24     In Sheik Parvez Zunuas bin Shaik Raheem, the High Court applied the tariff in Fam Shey Yee: “Given that the usual sentencing tariff for the s 43(4) offence is between four to eight weeks (Fam Shey Yee v Public Prosecutor [2012] SGHC 134 at [12], cited in the GD at [31]), I do not think it can be said that the uplift of two weeks from the bottom of the range was manifestly excessive” (at [75]).

25     In Rizuwan bin Rohmat at [62], the High Court stated that the “‘usual tariff’ for an offence under s 43(4) RTA is between four to eight weeks’ imprisonment: see Fam Shey Yee at [12]”.

26     Importantly, in Seah Ming Yang Daryle at [75], a 3-Judge High Court stated that “we were of the view that a benchmark sentence of two weeks’ imprisonment was appropriate for the archetypal s 35(1) RTA case which involves a first-time offender, who is an Unqualified Driver who pleads guilty, and who does not cause an accident. Such a benchmark sentence was broadly consistent with the usual tariff of four to eight weeks’ imprisonment for s 43(4) RTA offences of driving whilst under disqualification (Fam Shey Yee at [12]) considering the similarities and differences between both offences.”

27      Rizuwan bin Rohmat and Seah Ming Yang Daryle were cases involving s 35 of the Road Traffic Act. They were decided after the amendments to the Road Traffic Act in 2019.

Public Prosecutor v Peng Jianwen

28     In Public Prosecutor v Peng Jianwen [2021] SGDC 93 (”Peng Jianwen”), the District Court stated that “…the punishment for s 43(4) of the RTA has been enhanced for first and repeat offenders” (at [37]) and that consequently, “the new starting point sentence for a first offender like the accused here would now be double that of the previous sentence of four weeks’ imprisonment, i.e. eight weeks’ imprisonment” (at [47]).

29     I paused here to offer three observations.

30     First, while the sentence in Peng Jianwen was upheld on appeal by the High Court, the High Court in that case neither endorsed nor commented on the starting point of sentences for s 43(4) of the Act.

31     This was similar to the situation described in Kandasamy Senapathi v Public Prosecutor [2023] SGHC 296 at [34]. Essentially, while the specific sentences for the CDSA[note: 10] charges in Public Prosecutor v Ho Man Yuk & others [2017] SGDC 23 were upheld in Shaikh Farid v Public Prosecutor and other appeals [2017] 5 SLR 1081, the High Court did not comment specifically on the appropriateness of the sentencing ranges set out by the court below.

32     In his subsequent decision in Chong Kum Heng v Public Prosecutor [2020] 4 SLR 1056, the High Court Judge stated unequivocally (at [70]) that he had not commented specifically on the appropriateness of the sentencing ranges set out in Ho Man Yuk.

33     Second, the laying down of sentencing benchmarks should generally be left to the appellate court (Public Prosecutor v Sindok Trading Pte Ltd (now known as BSS Global Pte Ltd) [2022] SGHC 52 at [29]). Sindok Trading was cited with approval in Kandasamy Senapathi v Public Prosecutor [2023] SGHC 296 at [37] and Yeo Kee Siah v Public Prosecutor and another appeal [2024] SGHC 77 at [88].

34      Peng Jianwen was decided about one year before Sindok Trading.

35     Third, the amendments to the Road Traffic Act in 2019 did not enhance the prescribed punishment for s 43(4) for first offenders, which remained the same — at “a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both”.

36     That said, I acknowledged Parliament’s intent to punish irresponsible drivers more severely after the 2019 RTA amendments. This intent finds expression in the parliamentary debates and the legislative amendments.

37     During the Second Reading of the Road Traffic (Amendment) Bill (Bill No. 13/2019) on 8 July 2019, Second Minister for Home Affairs, Mrs Josephine Teo, explained that the impetus behind the comprehensive review of the RTA, and the consequent amendments to it, was the need for stronger deterrence and an “enhanced approach” against irresponsible driving offences (Public Prosecutor v Lim Choon Leong Aaron [2024] SGDC 219 at [16]).

38     Specifically, the purpose of adopting an “enhanced approach” was to “raise sentencing norms for egregious irresponsible driving offences” (Singapore Parliamentary Debates, Official Report (8 July 2019, vol 94). As a driver driving under a disqualification order falls within the definition of irresponsible driving, an offence of driving under disqualification should generally attract a stiffer punishment after the 2019 RTA amendments (Lim Choon Leong Aaron at [16]).

39     Further, the Parliament, in amending s 43(4) of the pre-2019 RTA to the current version in s 43(4) of the RTA, intended to confer a wider discretion on the courts to mete out higher sentences in appropriate cases. Before the 2019 RTA amendments, the offence of driving whilst under disqualification under s 43(4) of the pre-2019 RTA attracted a single punishment range for both first-time and repeat offenders, presumably with the sentences for first-time offenders being clustered at the lower end of the range (i.e., four to eight weeks’ imprisonment established in Fam Shey Yee), and the sentences for identically situated repeat offenders falling at the upper end of the range (Lim Choon Leong Aaron at [17]).

40     After the 2019 RTA amendments, the punishment range under s 43(4) of the pre-2019 RTA is now reserved for first-time offenders, and the maximum prescribed punishment for repeat offenders is double that of the maximum prescribed penalty for first-time offenders. This means that the sentences for first-time offenders need not be clustered at the lower end of the range – the courts can consider the full range of penalties prescribed in determining the appropriate sentence in each case, and impose higher sentences when the facts justify them (Ong Chee Eng v Public Prosecutor [2012] 3 SLR 776 at [24] and Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 at [26]) (see Lim Choon Leong Aaron at [17]).

Other Precedents

41     The High Court in Public Prosecutor v Lee Seck Lian (MA 9016 of 2024/01, Oral Judgment) at [8] referred to Peng Jianwen and Public Prosecutor v Abdul Fathani Bin Khairuddin [2021] SGDC 143, where the offenders pleaded guilty to offences under s 43(4) and were sentenced to 36 and 42 months’ disqualification respectively and 8 weeks’ imprisonment.

42     In keeping with the gravity of s 43(4), offenders who drive whilst under disqualification must expect an imprisonment term and in most cases, a disqualification period that is at least twice the original disqualification period (unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability): Fam Shey Yee at 134 at [12] and Muhammad Saiful bin Ismail v Public Prosecutor [2014] 2 SLR 1028 at [20].

(3)   Driving disqualification order

43     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14], Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64] and Chen Song v Public Prosecutor [2024] SGHC 129 at [143].

44     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

45     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. For instance, a 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

46     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Act.

Decision on sentence

47     The Accused drove a vehicle whilst under disqualification, flouting s 43(4) of the Act.

48     Driving whilst under disqualification is grossly irresponsible – it is about as grave an offence as a motorist can commit: Public Prosecutor v Chng Wei Meng [2002] 2 SLR(R) 566 at [43].

49     There are three interlacing reasons for punishing these offenders strictly. The first reason is the offender’s deliberate disregard of the court order: Public Prosecutor v Lee Cheow Loong Charles [2008] 4 SLR(R) 961 at [31] (see also the Sentencing Practice in the Subordinate Courts (Third Edition: Volume II, LexisNexis, 2013) at pages 1629-1630).

50     Second, bringing this to sharper focus is the danger posed to the public.

51     Third, not only does the offender compromise the safety of our roads, luckless victims of traffic accidents are at risk of being without compensation because the offender would not be covered by insurance: Chng Wei Meng at [18].

52     For s 43(4) of the Road Traffic Act, the surrounding circumstances may indicate diminished culpability if the offender felt compelled to commit the offence: Muhammad Saiful bin Ismail at [36].

53     There were no such surrounding circumstances to aid the Accused. In fact, he had rented the motorcycle from September 2022 to December 2022,[note: 11] which pointed towards an intentional and flagrant breaking of the law (Muhammad Saiful bin Ismail at [31]). He was involved in an accident with a lorry on the day in question.[note: 12]

54     The length of time from the start or end of the original disqualification order might also be relevant for culpability. A person who is caught driving near the beginning of the original disqualification period is likely to be more culpable than one who is caught near the end of the period, as it may suggest a more blatant disregard for the law and contempt for the court-imposed penalties: Muhammad Saiful bin Ismail at [33]-[34].

55     Here, the length of time from the start of the original disqualification order was about 3 months. The date of the offence was 14 December 2022.[note: 13] The Accused was disqualified from driving for all classes of driving licences for 12 months from 9 September 2022 to 8 September 2023.[note: 14]

(1)   Antecedents

56     The Accused’s driving record was not unblemished.

57     The Accused had a prior antecedent for s 3(1) of the MV(TPR&C)A in 2022 where he was fined $600 with a driving disqualification of 12 months.

58     He also had driving-related compounded offences for speeding and careless driving. An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

59     In the present case, I placed little weight on his compounded offences.

(2)   Guilty plea

60     The SAP Guidelines for Guilty Pleas applied. I gave due weight to the Accused’s guilty plea: Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [77]. This saved the criminal justice system resources that would have been expended with a full trial.

61     That said, the evidence against the Accused was overwhelming and lends itself to the conclusion that he had little choice but to plead guilty: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197 at [71] and [73], and Public Prosecutor v BDB [2017] SGCA 69 at [74].

(3)   Cooperation with the authorities

62     I gave due weight to the Accused’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

Conclusion

63     For the above reasons, the Accused was sentenced to:

(a)      s 43(4) of the Act: 8 weeks’ imprisonment and driving disqualification of 24 months from the date of release.

(b)      s 3(1) MV(TPR&C)A: fine of $1000 in default 2 days’ imprisonment and driving disqualification of 24 months from 15 August 2024.

[note: 1]DAC 913556 of 2024.

[note: 2]DAC 913557 of 2024.

[note: 3]SOF at [1].

[note: 4]SOF at [2].

[note: 5]SOF at [3].

[note: 6]SOF at [4].

[note: 7]SOF at [5].

[note: 8]SOF at [6].

[note: 9]SOF at [7].

[note: 10]Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act.

[note: 11]SOF at [1].

[note: 12]SOF at [4].

[note: 13]SOF at [3].

[note: 14]SOF at [4].

"},{"tags":["CRIMINAL LAW – Offences – Outrage of modesty","CRIMINAL LAW – Offences – Insulting modesty","CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Appeal"],"date":"2024-10-09","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 902980-2023 and No 902981 of 2023, Magistrate's Appeal No 9134-2024-01","title":"Public Prosecutor v JCX","citation":"[2024] SGMC 71","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32299-SSP.xml","counsel":["Vincent Ong (Attorney-General's Chambers) for the Public Prosecutor","Patrick Fernandez (Fernandez LLC) for the accused."],"timestamp":"2024-10-15T16:00:00Z[GMT]","coram":"Wong Peck","html":"Public Prosecutor v JCX

Public Prosecutor v JCX
[2024] SGMC 71

Case Number:Magistrate Arrest Case No 902980-2023 and No 902981 of 2023, Magistrate's Appeal No 9134-2024-01
Decision Date:09 October 2024
Tribunal/Court:Magistrate's Court
Coram: Wong Peck
Counsel Name(s): Vincent Ong (Attorney-General's Chambers) for the Public Prosecutor; Patrick Fernandez (Fernandez LLC) for the accused.
Parties: Public Prosecutor — JCX

CRIMINAL LAW – Offences – Outrage of modesty

CRIMINAL LAW – Offences – Insulting modesty

CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Appeal

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9134/2024/01.]

9 October 2024

District Judge Wong Peck:

Introduction

1       The male accused is presently aged 61 years old. He claimed trial to 2 charges. One charge was for outraging the modesty of his stepdaughter (“the complainant”) under section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)(“first charge”) and the other charge was for insulting the modesty of the complainant which was an offence under section 377BA of the Penal Code 1871(“second charge”).

2       After a trial, the accused was convicted of both charges which were as follows:

MAC 902980-2023

are charged that you, sometime in 2020, at Blk XXX at #XX-XXX, Singapore XXX, did use criminal force on one XXX, Female/16 years old (DOB: 07/06/2002) to wit, by grinding your penis against her buttocks, knowing it likely that you would thereby outrage the modesty of the said XXX, and you have thereby committed an offence punishable under section 354(1) of the Penal Code (Chapter 224, 2008 Rev Ed).

MAC 902981-2023

are charged that you, sometime on or about 23 October 2022, at East Coast Park, Singapore, intending to insult the modesty of one XXX, Female/18 years old (DOB: 07/06/2004), did utter words, to wit, by asking the said XXX to perform oral sex on you in return for money, intending that such words would be heard by her, and you have thereby committed an offence punishable under section 377BA of the Penal Code 1871.

3       After considering the parties’ position on sentence, I imposed the following sentences:

Charge

Charge Number

Sentence

First charge

MAC 902980-2023

6 months’ imprisonment

(Consecutive)

Second charge

MAC 902981-2023

10 day’s imprisonment

(Consecutive)

Total sentence

6 months and 10 days’ imprisonment



4       Being dissatisfied, the accused has since appealed against conviction and sentence. He is currently on bail pending appeal. These are the full grounds of my decision.

5       The issues for determination before this court were:

Issue 1:    Did the accused commit the offence as set out in the first charge?

Issue 2:    As it was undisputed that the accused did communicate the words that form the subject matter of the second charge, what was the accused’s intention when making such communication?

Background facts

6       The complainant lived with her biological father after her parents’ divorce. However, her sister (“CS”) and brother (“CB”) who testified in court as prosecution witnesses, lived with their mother (“CM”) and the accused at another flat. It was undisputed that the complainant regarded the accused as a father.

First charge (grinding incident)

7       The complainant would visit the accused’s flat and obtain massages from the accused to relieve her bodily aches as she was active in the sport of Silat. The offence occurred during one of these massages that took place in the bedrooms in the accused’s flat. Although the accused would usually step on the complainant’s back as part of the massage, on that particular occasion, the accused sat on the back of the complainant to massage her back. The complainant felt the accused’s penis grind against her buttocks.

Second charge (“blowjob” incident)

8       This offence occurred during a family picnic that took place at the East Coast Park on a public holiday on 23 October 2022. The complainant and the accused went to a corner to have a smoke when the accused uttered words that were intended to insult her modesty. They had a conversation during which the accused asked the complainant if she would give him a “blowjob” if he gave her $100. When she refused, he offered her more money to which she refused. It was undisputed that such words were uttered. However, the accused claimed that he was instructed by CM to find out if the complainant had been liberal with the opposite sex and the utterance of these words were to “test” the complainant in this regard.

The prosecution’s case

9       There were 5 prosecution witnesses who gave evidence in court. These witnesses included the complainant, CS, CB, Officer F and Investigation Officer (“IO”). Officer F was the police officer who attended to the police report made by the complainant on 25 October 2022 relating to the first charge.[note: 1]

Evidence by CS

10     CS gave evidence that she would converse with the accused in a mixture of English and Malay. Their relationship was like father-daughter. According to CS, the complainant reduced the frequency of her visits to the accused’s flat after the filing of her police report in 2022 as the complainant did not want interaction with the accused. The sisters shared a very close relationship, and the complainant would regard CS as her mother. The sisters would speak to each other every day on a myriad of topics.

11     CS testified that the complainant’s relationship with the accused was also like father-daughter. According to CS, the complainant had spoken to CS more than once about the accused touching the complainant inappropriately. This included the incident which was subject matter of the first charge.

12     The complainant told CS that sometime in 2019 or 2020, during one of their Facetime sessions, there was an occasion that the accused had been “grinding his penis on” the complainant during a massage session. However, the complainant did not mention which part of her body. This happened when the complainant had asked the accused for a massage as she was tired and aching from her Silat practice.

13     The complainant sounded angry about the incident. CS told the complainant that she could be overthinking and brushed it off. However, she went on to advise the complainant not to come back to the accused’s flat so often. As CS felt confused after the conversation, she did not tell anyone about what the complainant had divulged to her. She noticed that the complainant reduced her visit to once a week thereafter.

14     CS also testified that the complainant told her about the insulting words said by the accused at a family picnic which was the subject matter of the second charge. CS recalled that the accused proposed “blowjob” and “having sex”.

15     After the picnic, on the night of that day, the complainant reached out via Telegram to CS. She told CS that she had spoken to CB already about the “blowjob” incident. When the sisters conversed over Facetime, the complainant informed CS that during a smoke session when the accused and the complainant were alone, the accused offered $100 for a “blowjob” and asked her if she wanted to feel what sex was like, she should go to him instead of other boys. According to CS, the complainant was angry and shocked when talking about the incident.

16     According to CS, CB then convened a family dialogue at the accused’s flat during which CB asked the accused for an explanation for the “blowjob” incident. The accused’s explanation was that the complainant misinterpreted the contents of their conversation.

The complainant’s evidence

17     The complainant testified that she was the closest to the accused as compared to her siblings. She even addressed him as “Papa” as she viewed him as a father figure. However, she was not very close to CM.

18     The accused and the complainant would speak to each other in a mixture of Malay and English. Whenever she had a problem, she would confide in CS.

19     When the complainant started having a boyfriend, the accused initiated a conversation with her about the sexual relationship between her and her boyfriend. She replied that they did not have sexual intercourse but she had given her boyfriend a “hand job”. Sometime in late 2019, she noticed that the accused would appear to accidentally touch her breast area which she dismissed as an accidental touch. CS then advised her not to come over to the flat so often.

20     Sometime in 2020, she had asked the accused to give her a massage by using his feet to step on her. The massage took place in the bedroom of her siblings. She then proceeded to lie face down. Instead of stepping on her, the accused sat on her back and massaged her shoulder area using his hands. She felt his penis rubbing on her buttocks in a up and down motion for less than 5 seconds. They were both wearing clothes. He was wearing a pair of jersey shorts.

21     As she was facing down, she could not see anything. She explained that as he was wearing jersey shorts with no pockets such that there was no possibility of objects being placed in his pockets and since his hands were massaging her shoulders, she was certain that it was his penis that was moving up and down her buttocks. At one point, she could feel his stomach on her back and his legs were spread open with each leg alongside her body. She then pushed him away and told him “Dah” to mean “enough”. Then she shouted “Mi” to call out to CM. However, CM was in her bedroom and did not hear her. The accused then got up and left the room.

22     According to the complainant, it was common for her to ask her family members for massages. This included asking the accused to provide massages. The complainant had Silat training so needed the massages to relieve her aches.

23     The complainant testified that when she confided in CS about this incident, CS told her to stay away from the flat. As the complainant had always listened to her sisterly advice, she reduced her visits to the flat thereafter.

24     On 22 October 2022, there was a family picnic at the East Coast Park. At one point, the complainant accompanied the accused for a smoke by themselves. The accused began the conversation by asking her if she was a virgin. When she replied “No”, he asked her if he gave her $100, would she give him a “blowjob”. Again, she replied “No”. By then, she had felt disgusted by him in that if he had regarded her as a daughter, he should not be asking her for a ”blowjob”. He persisted by offering her a sexual experience if she wanted such a sexual experience. He claimed that for such a sexual experience, he would be “better than any guy” and the experience would enable her to “drop dead until you cannot walk”. She continued feeling very uncomfortable by this conversation. She did not reply and the conversation ended. Thereafter, the accused texted the complainant that they had shared an experience and to keep it between them.[note: 2]

25     On 24 October 2022, she informed CB about what happened at the picnic. She recalled feeling very scared and was crying when she recounted the incident to CB. She then proceeded to file a police report on 25 October 2022.[note: 3]

Investigation Officer’s evidence

26     The investigation officer (“IO”) recorded 5 statements from the accused. On 26 October 2022, the accused wanted to file a police report against the complainant but he was arrested instead as the complainant had already filed a police report earlier.

27     The accused’s first and second statements were recorded in English on 26 October 2022[note: 4]. The third statement, which was to clarify his earlier statements, was recorded in English on 28 November 2022.[note: 5] The last 2 statements were the ones recorded under section 23(1) of the Criminal Procedure Code 2010.[note: 6]

Officer F’s evidence

28     Officer F confirmed in court that he attended to the complainant when she arrived at the police station to file her police report about both incidents. He clarified that although the complainant had informed him about both incidents, the police protocol was to reflect only the main offence which was the first charge.

CB’s evidence

29     CB testified that he addresses the accused as “papa”. CB was not really close to any family members as he would work and come home and would have little interaction with his family members.

30     According to CB, the complainant would come over to the accused’s flat often and even sleep over for a few days. Then the frequency of her visits reduced. Before she filed the police report against the accused, she had called CB first to meet up as she had something to tell him. When they met, she looked sad and tired.

31     During the meeting, she told him that at the family picnic, the accused had offered her money for a “blowjob”. She also told him that during a massage, she could feel the accused’s penis on her back. She did not tell CB about any grinding motion. CB asked her why she did not inform anyone. The complainant informed him that she had confided in CS. As her brother, he told her that he would accompany her to make police report if she wished to do so.

32     CB then convened a family dialogue so that family members could listen to the accused’s explanation for both incidents. The accused claimed that he offered the complainant $100 for a “blowjob” to test the complainant to see if she was still a virgin. He claimed that CM instructed him to test the complainant. As for the massage, he claimed that he had not intention to molest the complainant.

33     CB also testified that he did not believe the complainant entirely and he would want to hear both sides before deciding if the incidents did happen.

The defence’s case

The accused’s evidence

34     The accused’s evidence was that he did provide massages to the complainant in 2019 and 2020 as she would ask for massages when she felt pain and aches in her body. He continued providing massages until October 2022. During the massage, the complainant would lie face down on a mattress.

35     According to the accused, during massages, he would sit on her thighs and massage the complainant for about 10 minutes. CM would be in the room during the massages and the complainant would ask for CM to be present in the room. He claimed that he would not have an erection during the massages.

36     His defence to the first charge was that there was no outrage of modesty. The complainant continued having massages until October 2022. However, he admitted that he was not aware of any reason why the complainant would falsely accused him of the offence.

37     The first 2 statements were recorded in English as he claimed that he did not know that he could ask for an interpreter. He claimed that he could speak only little English so for the third statement, he asked for a Malay interpreter. He testified that he asked for the recording of the third statement as he was stressed during the recording of the first 2 statements and he might have said the wrong thing. He testified he was aware that it was important to tell the truth to the police.

38     As for the picnic incident, he did not deny that those words in the second charge were said by him to the complainant. He suggested that maybe the complainant was angry with his words and might have created stories to accuse him.

CM’s evidence

39     CM claimed that she shared a close relationship with the complainant. The accused and the complainant also shared a loving relationship as father- daughter.

40     When the accused provided massages to the complainant, CM would be present. She would leave the room only when the massages were completed. During the massage, the complainant would lie face down and the accused’s legs would straddle her body but he did not sit on her. He did not give the complainant massages by stepping on her body. CM claimed that if the complainant had been molested by the accused, the complainant would have informed her.

41     As for the family picnic, she recalled seeing both the accused and the complainant going for a smoke for about 10 minutes sometime during the picnic. This took place a little distance away. CM testified that the accused informed her after the picnic that he had advised the complainant to be careful with her friends. When they all left the picnic in a van, the complainant even chatted and laughed. The accused even lent the complainant $20 when the latter asked him for the loan.

42     As for the family dialogue, she claimed that she understood that there was a misunderstanding about the “blowjob” offer. The accused’s fatherly advice to the complainant was to be careful when mixing around and not to let others take advantage of her. CM testified that she did not know whether the accused had offered $100 to the complainant for a “blowjob”. She agreed that the offer of a “blowjob” for money would be insulting but in this instance, it was fatherly advice. She claimed that the “blowjob” offer was an example and not intended to insult the modesty of the complainant.

Submission of no case to answer

43     At the close of prosecution’s case, the defence counsel made a submission of no case to answer. In this regard, the question was whether there was some evidence (not inherently incredible) which, would establish each essential element in the alleged offences. The legal test was set down in the seminal case of Haw Tua Tau v PP [1981-1982] SLR (R) 133.

44     According to the defence, the offences took place when both the complainant and the accused were alone. Hence, the complainant’s evidence must be “unusually convincing”. The complainant’s evidence was uncorroborated and lacking in internal and external consistency such that no case was made out against the accused. The defence highlighted that the complainant testified that he never actually saw the accused using his penis as he was positioned on top of the complainant. Her evidence was that she felt his penis when he was sitting on top of her. Subsequently, her evidence was that he was lying flat on top of her when she felt his penis.

45     The defence also submitted that the complainant did not tell CM about the incident. She also continued to visit the accused’s flat and continued obtaining massages from the accused.

46     As for the second charge, the accused uttered those words as he was asked by CM to warn the complainant of the dangers of promiscuity. She was not disgusted or insulted by those words as she stayed on for another 2 hours until the end of the picnic and the whole family left together in the same van. The complainant even asked to borrow $20 from the accused via a text message whilst in the van and did not complain to the others while seated in the van.

47     The prosecution highlighted that there was sufficient evidence to establish all elements of the offences. The complainant had given a clear and logical recollection of the outrage of modesty incident which was not inherently incredible. While the complainant could not see the accused’s penis grinding against her, she gave cogent testimony that she could conclude that it was his penis as the jersey pants that the accused was wearing did not have pockets. A such, she could feel the accused’s penis moving up and down her buttocks.

48     As for the accused’s positioning, he was first sitting on her back and it progressed to him pressing his tummy on her hip area. Further, the complainant informed CS about this incident and CS corroborated the complainant’s testimony.

49     The complainant explained that she continued to get massages from the accused as CM would redirect her request for a massage to the accused.

50     As for the second charge, it was undisputed that such words were uttered. The only contention was the accused’s intention in doing so. The prosecution emphasised that such words were insulting particularly since he uttered the words in his capacity as the stepfather. The complainant testified that she was disgusted by the words.

51     After considering the submissions made by parties, I agreed with the prosecution that the prosecution had established a prima facie case. It was trite that the court was not required at this stage to conclude whether the accused’s guilt been proven beyond a reasonable doubt. The prosecution had shown that there was evidence to establish each essential element of the offences. Therefore, I then proceeded to call the accused to enter his defence.

Evaluation of evidence for the trial

52     For this trial, I found that the complainant was an unusually convincing witness. At [90] of PP v GCK and another matter [2020] 1 SLR 486, the complainant would be unusually convincing if the complainant’s testimony alone was sufficient to prove the prosecution’s case beyond a reasonable doubt. The court was to consider the complainant’s demeanour and the internal and external consistencies of her evidence.

53     For the present case, I also found that there was corroboration by CS and CB. CS and CB were able to corroborate the complainant’s version of her incidents.

Issue 1: Did the accused commit the offence as set out in the first charge?

54     I found that the grinding incident occurred in 2020 as in 2019, the complainant was still visiting the accused’s flat regularly. CS had testified that the complainant had reduced the frequency of her visits in 2020 which was the year as stated in the first charge. I found that this was because CS had advised the complainant to reduce the frequency of her visits after the sisters conversed about the grinding incident.

55     I found that the complainant had maintained her version consistently of how the outrage of modesty occurred. I found her evidence internally consistent and corroborated in the material aspects by CS and CB. The complainant had a close relationship with the accused and she called him “Papa”. She would also speak to the accused when she had problems. They would converse in a mixture of English and Malay. They also texted each other over WhatsApp. I found that she trusted the accused as a father to her.

56     The complainant’s version was consistent when the time when she informed CS as to how the offences occurred till the time when she gave evidence in the witness stand. I accepted the prosecution’s submissions that her account of the incident was “credible, consistent and unequivocal”. Her evidence remained unshaken and was tested during cross examination.

57     The complainant’s evidence was internally consistent in that she could clearly describe in detail that although she had asked the accused to step on her body as a massage, he instead sat on her “butt area” while she was lying prone, face down and he massaged her shoulders using his hands. While doing so, she could feel his penis grinding on her buttocks. She felt his hips resting on her buttocks and his penis grinding up and down for a few seconds[note: 7]. She could not have mistaken some object for his penis as there was nothing in the pocket of the accused’s jersey pants[note: 8]. Even under intense cross-examination by the defence, the victim’s testimony remained consistent that it was the accused’s penis grinding on her buttocks. [note: 9]She managed to push the accused away and called for her mother. As she was closer to CS than CM, it was unsurprising that she chose to confide in CS rather than CM about this grinding incident.

Issue 2: As it was undisputed that the accused did communicate the words that form the subject matter of the second charge, what was the accused’s intention when making such communication?

58     As for the second charge, it happened on Deepavali day which was 22 October 2022. While the accused and the complainant were alone for a smoke during the family picnic, the accused asked her if she was a virgin and upon hearing her reply that she was not, he went on to ask her if he paid her $100 for a “blowjob”, would she comply with the request for a “blowjob”. When she refused, he persisted and offered $200. She again rejected him. He also went on to offer sexual experience for which he could offer one “better than any guy”. This conversation took place when the accused was talking in a serious tone. As she was then already 18 years old as opposed to being 15-16 years old during the grinding incident, she testified that she decided to make a police report on 25 October 2022. I found that this was a logical explanation as to why she did not make a police report about the grinding incident earlier. With more maturity and realization that unwanted sexual encounters would likely persist if nothing was done to stop such encounters, she made the police report only after the “blowjob” incident. She had withheld making the police report about the grinding incident which was unsurprising since she regarded the accused as her father.

59     The complainant’s evidence was also corroborated by CS and CB. CS testified that the complainant had told her sometime in 2020 about the grinding incident that occurred during a massage. CS also testified that the complainant told her about the “blowjob”[note: 10]. The details of both incidents recited by CS in court were similar to the complainant’s testimony in court on how the incidents occurred[note: 11]. In contrast, the accused merely denied that he committed the offence at all for the grinding incident. It was undisputed that the complainant did obtain massages from the accused at the material period in time.

60     The parties agreed that the issue was whether the accused had intended to insult the victim’s modesty in making the “blowjob” proposition. For this incident, the accused did not deny that he did raise the subject of a “blowjob” for money. However, he attempted to explain that he was merely using the “blowjob” for money as an illustration as to how she should be circumspect when mixing with men. He claimed that it was fatherly advice and he did it out of fatherly concern. CS testified that this was an inappropriate conversation that the accused had with the complainant especially in a father-daughter context.

61     I agreed with the prosecution that the accused had intended to insult the modesty of the complainant[note: 12]. A request for oral sex for money was indeed inherently insulting to a woman’s modesty and it was worse when made in a stepfather-step daughter context. The accused admitted that he did make the proposition, but he gave an incredible explanation that he did so because CM told him to warn the complainant about being promiscuous. This was very odd explanation as there were other ways of administering such a warning without a “blowjob” proposition for money.

62     As for the reason why the complainant did not inform anyone in the van about the “blowjob” proposition, the reply was that no one would believe her. This was borne out by CM’s evidence that she would not have believed the complainant.[note: 13] I found this to be a reasonable explanation for the complainant’s behaviour in not informing anyone in the van at that point in time about the “blowjob” proposition.

63     The complainant’s testimony of “blowjob” proposition was corroborated by CS’s testimony[note: 14]. CS testified that the complainant was angry and shocked when she informed CS of the incident.

64     I found that the accused had not raised any reasonable doubt. For the grinding incident, the accused’s reply to Question 8[note: 15] in first statement recorded on 26 October 2022@1124 hours if he had used his penis to grind on the victim’s buttocks, he replied that “I cannot say yes, I cannot say no.” If this was a false accusation, he would have made an outright denial which he failed to do so. The accused claimed that he was nervous when he gave the 2 earlier statements on 22 October 2022 and might have said words wrongly. I found that this was not true as he had presence of mind to make amendments as seen on pages 9 to 13 of the first statement[note: 16]. He also claimed that he needed a Malay interpreter. According to the accused, as he was not really conversant in English, he did not provide correct answers in his first statement.

65     However, during the trial, he did answer a few times even before the Malay interpreter had completed her interpretation to him. He even answered clearly and loudly that he disagreed with a question that the learned prosecutor had put to him during cross-examination. This question posed by the learned prosecutor was that the accused had made the “blowjob” proposition because he thought he had a chance of getting a “blowjob”. Even CM who is his wife confirmed that they would speak and send texts to each other in English. Therefore, I found that he could understand, read and speak English. It followed that the accused did not make unintended or incorrect answers in the first statement as alleged by him.

66     I found the accused’s evidence to be riddled with inconsistencies, and he had the tendency to embellish or exaggerate his testimony. As stated earlier, his reply to Question 8 about the grinding incident in his first statement contrasted with his denial in a subsequent statement recorded on 28 November 2022 at 10.57am[note: 17] where he denied the incident. This subsequent statement was made by the accused 2 days later when he had the chance to ruminate on his earlier replies and decided to change his answers to ones that were favourable to him.

67     Another inconsistency related to the use of an interpreter. In the earlier 2 statements recorded on 26 October 2022, he declined to use an interpreter as he could speak a bit of English. In court, he claimed that he did not know he could ask for an interpreter although the question captured in the statements clearly showed that the Investigation Officer specifically offered the use of an interpreter to him. When confronted with this evidence of an offer, he changed his evidence to “I cannot recall if I did ask for an interpreter.”

68     Another inconsistency was the deletion of the WhatsApp exchange between the accused and the complainant[note: 18]. In this WhatsApp exchange, the accused had told the complainant to keep the conversation they had at the picnic between them. In court, he said at first that he did not delete this exchange from his phone. Upon further questioning by the prosecution, he changed his answer to “cannot remember”. However, the learned prosecutor showed that he had answered in Question 8 of his second statement that he had deleted them[note: 19].

69     I agreed with the prosecution that the accused had deleted this said WhatsApp exchange because he wanted to conceal the fact that he had informed the complainant to keep the conversation they had about the “blowjob” proposition secret. The first statement was made a mere 3 days after the “blowjob” incident. The accused also did not provide a satisfactory explanation as to why he deleted the exchange and at such a haste, a mere 3 days after the incident. I found that he knew the “blowjob” proposition was insulting to the victim and deleted this exchange to cover his tracks.

70     The accused claimed in court that the “blowjob” conversation was fatherly advice given to the victim and was a misunderstanding. However, the accused made no mention of fatherly advice in the cautioned statement recorded on 29 May 2023 at 2.45pm[note: 20]. This cautioned statement was made after the accused had benefit of legal advice. All he stated in the cautioned statement was that he was not guilty. Therefore, I found that the accused’s explanation for the “blowjob” proposition that he was merely giving fatherly advice and that it was a misunderstanding an afterthought on his part.

71     By the accused’s own admission in court, he had no idea as to why the complainant would falsely implicate the accused of both offences. The burden would fall on the prosecution to prove that there was an absence of motive only when the defence has raised sufficient evidence of a motive to fabricate allegations against the accused (see [48] in PP v Yue Roger Jr [2019] 3 SLR 749. Here, the accused had not adduced any evidence of a motive such that the burden would fall on the prosecution to prove the absence of a motive.

72     I found that CS had no reason to falsely testify in court about the grinding and “blowjob” incidents. It was also CS’s evidence that the complainant had a close relationship with the accused, so the complainant had no reason to falsely accuse her stepfather of having committed both offences. Although CB did testify that he did not entirely believe the victim, he did concede that he would want to hear both sides before deciding. This was unsurprising considering he was not close to the victim nor the rest of the family by his own admission as he would do his “own thing”.

73     I found CM’s evidence consisted mainly of opinion evidence which was inadmissible. For example, opinion such as “I know my husband and he would not do things like that.” This was in reply to the question about the grinding incident.

74     As for “blowjob” incident, I found that she knew little of this proposition. She admitted that she was a distance away when the conversation between the accused and the complainant occurred. She admitted that all she told the accused to speak to the victim about was “Be careful with whoever you befriend.” She did not inform him to use oral sex as fatherly advice nor as an illustration. She also knew scant details of the conversation and only knew whatever the accused chose to tell her. For example, she admitted that she first heard about the “blowjob” proposition only at the family meeting convened by CB.

75     CM also admitted and confirmed what the complainant had told the court that the reason why the victim did not confide in CM was because CM would not believe her.

76     In sum, I found that the prosecution had proven all elements of both offences beyond a reasonable doubt so I convicted the accused accordingly.

Antecedents

77     The accused was untraced.

The prosecution’s submissions on sentence

78     The Prosecution submitted for a global sentence of 6 months and 2 weeks’ imprisonment to 7 months and 3 weeks’ imprisonment as an appropriate sentence. In sum, the following sentences were proposed by the prosecution:

Charge number

Provision

Prosecution’s position on sentence

MAC 902980-2023

(First charge)

Section 354 (1) of the Penal Code

6-7 months’ imprisonment

(Consecutive)

MAC 902981-2023

(Second charge)

Section 377BA of the Penal Code 1871

2-3 weeks’ imprisonment

(Consecutive)

Proposed global sentence

6 months and 2 weeks’ imprisonment to 7 months and 3 weeks’ imprisonment



79     For the first charge, the prosecution highlighted that the sentencing framework in Kunasekaran s/o Kalimuthu Somasundara v PP and another appeal [2018] 4 SLR 580 was to be applied. Under the two-step framework, the first step was for the court to consider offence-specific factors. These factors were (1) the degree of sexual exploitation, including where the victim was touched, how she was touched and the duration of the outrage of modesty; (2) the circumstances of the offence, including the presence of premeditation, the use of force, the abuse of trust, the use of deception, exploitation of a vulnerable victim and other aggravating acts; and (3) the harm caused to the victim, including physical or psychological harm.

80     For the second step, the court would consider the offender-specific aggravating and mitigating factors. This would include (1) the number of charges taken into consideration for purpose of sentencing; (2) relevant antecedents; (3) timely plea of guilt and (4) the presence of a mental or intellectual disability. The court would make an upward or downward adjustment to the sentence as appropriate.

81     Based on the offence-specific factors, the court would ascertain which band would the offence fall under:

Band

Offence specific aggravating factors

Sentencing range

1

None or at most one aggravating factor. This typically involves cases with a fleeting touch, or touch over the clothes or no intrusion into private parts.

Less than 5 months’ imprisonment

2

Two or more aggravating factors. Lower end of the band includes touching victim’s private parts but over clothes. High end of band included skin to skin contact with victim’s private parts.

5 to 15 months’ imprisonment

3

Multiple aggravating factors, especially factors such as the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust, and/or the use of violence or force on the victim.

15 to 24 months’ imprisonment



82     Th prosecution submitted that the present case fell under the lower end of Band 2 as there was a moderate degree of sexual exploitation, the accused had breached the trust that the complainant had in him and the complainant was affected by the accused’s offence as she had cried when recounting the incident to CS and she testified that she felt uncomfortable and disgusted by the incident.

83     As the accused had claimed trial and showed no remorse, he was not entitled to a sentencing discount. In calibrating the sentence, the prosecution also referenced to 3 reported decisions where sentences of 18 weeks to 5 months’ imprisonment were meted out. These were PP v Rosman bin Jaafar [2019] SGMC 56, PP v Goh Eng Chin [2018] SGMC 17 and PP v Raschel Md Asadujjaman [2018] SGMC 51. Here, the present case involved abuse of trust unlike the 3 cited cases. Hence, there should be an uplift to 6-7 months’ imprisonment.

84     As for second charge, the prosecution submitted that 2-3 weeks’ imprisonment would be appropriate. There is no applicable sentencing framework for offences under section 377BA. The court was asked to consider aggravating factors similar to those under section 354(1) offences as per Kunasekaran framework.

85     The accused had propositioned his much younger stepdaughter and he had claimed trial and showed no remorse. In PP v Tan Chee Beng [2023] SGHC 93 (“Tan Chee Beng”), the offender was sentenced to 1 week’s imprisonment. Here, there should be an uplift in the sentence as the complainant was the accused’s stepdaughter.

Mitigation

86     The Defence submitted that that the appropriate sentence was as follows:

Charge number

Defence’s proposed sentencing

MAC 902980-2023

(First charge)

4 months’ imprisonment

(Consecutive)

MAC 902981-2023

(Second charge)

1 week’s imprisonment

(Consecutive)

Total sentence

4 months and 1 week’s imprisonment



87     The defence also applied the Kunasekaran framework except that the present case fell under higher end of Band 1 because the touch was fleeting, there was no skin on skin contact and there was no intrusion of the private parts but there was abuse of position of trust. Hence, the starting point would be 4 months’ imprisonment. The defence also acknowledged that the accused would not be entitled to a sentencing discount.

88     According to the defence, imprisonment terms of up to 2 weeks were most frequently meted out for the section 377BA offences. Here, the accused’s actions were not prolonged, so 1 week’s imprisonment was appropriate.

Sentencing

First charge

89     Under section 354(1) of the Penal Code, the punishment prescribed by law is a sentence of imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.

90     I agreed with the prosecution that the present case fell under lower end of Band 2 in view of three aggravating factors. Here, there was a moderate degree of exploitation in that his actions were deliberate as he had repeated the motion of grinding his penis against the complainant’s buttocks for a few seconds. He knew that the complainant was in a vulnerable position in that she was unable to see his penis as she was lying down face down.

91     As rightly pointed out by the prosecution, the accused abused the position of trust as the complainant’s stepfather. It was clear that she trusted him and even addressed him as “Papa”. At the time of the offence, she was much younger than the accused in that she was about 16 years old.

92     The accused also knew that since both of them shared a close relationship, there was a strong likelihood that she would not report the wrongdoing. The situation was made worse by CM’s disbelief in her own daughter. CM confirmed in court that she would not believe that the accused would behave in such a fashion. This made it even more difficult for the complainant to report the accused’s wrongdoing.

93     Another aggravating factor was that the offence took place in the home that the accused shared with CM and where the complainant would visit frequently. The complainant would expect her mother’s home to be a safe place but instead, she was molested by her stepfather in that home.

94     It was also evident that the victim was affected by the offence. She cried over the phone when informing CS about the offence.[note: 21] She also testified in court that she felt uncomfortable and disgusted by the accused’s actions.

95     I noted that the accused was untraced for antecedents. No sentencing discount was accorded to him as he had claimed trial. The accused did not allege that he had any mental disorder or intellectual disability. In sum, I assessed the appropriate sentence as 6 months’ imprisonment.

96     Such a sentence was also in line with prevailing decisions. For the 3 reported decisions cited by the prosecution, terms of up to 5 months’ imprisonment were imposed for situations where the offender rubbed his penis against the victim’s buttocks for a few seconds like in the present case. I agreed with prosecution that unlike these 3 cited decisions, the present case was more egregious in that the offence was committed by the accused who abused the trust that the complainant had in him as her stepfather.

Second charge

97     Under section 377BA of the Penal Code 1871, the punishment prescribed by law is an imprisonment term which may extend to one year, or with fine, or with both.

98     As for second charge, I imposed a 10 days’ imprisonment term which was higher than the 1 week’s imprisonment meted out in Tan Chee Beng. The present case was more egregious than Tan Chee Beng as the accused here abused his position of trust. Even the defence had acknowledged that the usual imprisonment term was up to 2 weeks. Therefore, the present sentence of 10 days could hardly be said to be manifestly excessive.

Total sentence

99     Both parties were in agreement that the sentences should run consecutively. As I had agreed with the parties that separate and distinct offences were committed on different occasions, the imprisonment terms were ordered to run consecutively.

Conclusion

100    For the reasons as set out above, I imposed an imprisonment term of 6 months and 10 days.

[note: 1]Agreed bundle of documents, Tab 1

[note: 2]Agreed bundle of documents, Tab 4

[note: 3]Agreed bundle of documents, Tab 1.

[note: 4]Agreed bundle of documents, Tabs 5 and 6

[note: 5]Agreed bundle of documents, Tab 9

[note: 6]Agreed bundle of documents, Tabs 7 and 8

[note: 7]NE, Day 2, page 20, lines 1-10

[note: 8]NE, Day 2, page 20, line 17 and lines 19-21.

[note: 9]NE, Day 3, page 15, line 28 to page 16, line 15

[note: 10]NE, Day 1, page 19, lines 4-5

[note: 11]NE, Day 1, page 18, lines 13-24 and page 19, lines 6-11

[note: 12]The prosecution’s closing submissions at [25]-[29]

[note: 13]NE, Day 7, page 59, lines 6-28

[note: 14]NE, Day 1, page 26, lines 4-11

[note: 15]Agreed bundle of documents, Tab 5

[note: 16]NE, Day 6, page 70, line 16 to page 72, line 26

[note: 17]Agreed bundle of documents, Tab 9, page 36

[note: 18]Agreed bundle of documents, Tab 6, page 22

[note: 19]Agreed bundle of documents, Tab 6, page 19

[note: 20]Agreed bundle of documents, Tab 8, pages 30-35

[note: 21]NE, Day 2, page 27, lines 25-27

"},{"tags":["Criminal law – Statutory offences – Section 7 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor’s lips","Criminal law – Statutory offences – Section 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor and touching her breasts and vagina – Licking a minor’s vagina – Rubbing an accused person’s penis against a minor’s vagina – Making a minor masturbate the accused person","Criminal law – Statutory offences – Section 7(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Masturbating in front of a minor and making her masturbate the accused person","Criminal law – Statutory offences – Section 376A(1)(a) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Penile penetration of a minor’s vagina","Criminal law – Statutory offences – Section 376A(1)(b) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Digital penetration of a minor’s vagina","Evidence – Proof of evidence – Sexual offences by accused person based on a minor’s sole evidence – Whether the minor’s evidence is unusually convincing"],"date":"2024-10-09","court":"District Court","case-number":"District Arrest Case No 909117 of 2021","title":"Public Prosecutor v JDC","citation":"[2024] SGDC 192","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32293-SSP.xml","counsel":["DPPs Santhra Aiyyasamy, Janessa Phua, Chee Ee Ling for the Prosecution","Steven John Lam Kuet Keng and Kenrick Lam (Templars Law LLC) for the Accused."],"timestamp":"2024-10-15T16:00:00Z[GMT]","coram":"Kow Keng Siong","html":"Public Prosecutor v JDC

Public Prosecutor v JDC
[2024] SGDC 192

Case Number:District Arrest Case No 909117 of 2021
Decision Date:09 October 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): DPPs Santhra Aiyyasamy, Janessa Phua, Chee Ee Ling for the Prosecution; Steven John Lam Kuet Keng and Kenrick Lam (Templars Law LLC) for the Accused.
Parties: Public Prosecutor — JDC

Criminal law – Statutory offences – Section 7 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor’s lips

Criminal law – Statutory offences – Section 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Kissing a minor and touching her breasts and vagina – Licking a minor’s vagina – Rubbing an accused person’s penis against a minor’s vagina – Making a minor masturbate the accused person

Criminal law – Statutory offences – Section 7(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) – Masturbating in front of a minor and making her masturbate the accused person

Criminal law – Statutory offences – Section 376A(1)(a) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Penile penetration of a minor’s vagina

Criminal law – Statutory offences – Section 376A(1)(b) and punishable under section 376A(2) of the Penal Code (Cap 224, 2008 Rev Ed) – Digital penetration of a minor’s vagina

Evidence – Proof of evidence – Sexual offences by accused person based on a minor’s sole evidence – Whether the minor’s evidence is unusually convincing

9 October 2024

District Judge Kow Keng Siong:

Introduction

The parties

1       The Accused (D.O.B.: 8 July 1973) is a primary school teacher. He is charged with having committed various sexual offences against the Victim (D.O.B.: 1 December 1994), his former student.

The Charges

2       The charges are under the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”) and the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (collectively “Charges”). The details of these charges are as follows:

Charge

Offence

Time of offence

Nature of offence

Location of offence

1st Charge

DAC 909117 2021

S 7 CYPA

2007

Victim: 12 – 13 years old

Accused kissed the Victim’s lips

Accused’s car (“Car”)

2nd Charge

DAC 909118 2021

S 7(a) CYPA

2008

Victim: 13 – 14 years old

Accused kissed the Victim and touched her breasts and vagina (over her clothes)

Car

3rd Charge

DAC 909119 2021

S 7(b) CYPA

2008

Victim: 13 – 14 years old

Accused attempted to procure the commission of an obscene act – by masturbating himself in front of the Victim and asking her to masturbate him

Car

4th Charge

DAC 909120 2021

S 7(a) CYPA

2008

Victim: 13 – 14 years old

Accused licked the Victim’s vagina

Accused’s flat (“Flat”)

5th Charge

DAC 909121 2021

S 7(a) CYPA

2009

Victim: 14 – 15 years old

Accused rubbed his penis against the Victim’s vagina (skin-on-skin)

Flat

6th Charge

DAC 909122 2021

S 7(a) CYPA

2009

Victim: 14 – 15 years old

Accused made the Victim masturbate him

Void deck of a HDB block near the Flat (“Block 492D”)

7th Charge

DAC 909123 2021

S 376A(1)(b) r/w s 376A(2) Penal Code

2009

Victim: 14 – 15 years old

Accused penetrated the Victim’s vagina with his finger

Block 492D

8th Charge

DAC 909124 2021

S 376A(1)(a) r/w s 376A(2) Penal Code

Between 12.11.10 and 30.11.10

Victim: 15 years old

Accused penetrated the Victim’s vagina with his penis

Flat



3       At the end of a trial, I convicted the Accused on all eight charges. These are my reasons for the convictions.

Undisputed facts

4       I begin with the undisputed facts.

(a)     The Accused and the Victim were in a romantic relationship.

(b)     During the relationship, they had engaged in various sexual acts. These included penile-vaginal penetration.

(c)     The relationship came to light on 13 June 2017 when the Victim’s sister (“VS”) accidentally discovered three videos (exhibit P3) that the Victim had made in June 2012 (“Videos”).

(d)     The Videos lasted about 13 minutes in total.

(i)       They showed the Victim speaking into a camera in a monologue. She spoke about her internal struggles concerning her relationship with the Accused and her intention to break up with him. She was emotional and crying in the Videos.

(ii)       The Victim made the Videos because she had no one to confide to. She did not want to disclose the relationship to others for fear of getting the Accused into trouble.

(iii)       The Victim did not send the Videos to the Accused. She had in fact forgotten about them until they were discovered by VS.

Disputed facts

Prosecution’s case

5       According to the Victim –

(a)     The romantic relationship started in September 2006 when she was in Primary 6 (11 years old).

(b)     The sexual acts began very soon thereafter. They started with kissing when the Victim was 12 to 13 years old (2007) – and gradually escalated to groping, masturbation, and digital-vaginal penetration. Just before the Victim’s 16th birthday (2010), the Accused engaged in penile-vaginal penetration with her.

Accused’s case

6       According to the Accused –

(a)     The relationship began much later – only in May 2011, i.e., after the Victim had turned 16. That was when they had become “friends with benefits” (the Accused’s own words). These “benefits” included kissing, groping, and groin-to-groin rubbing. The first time that the Accused engaged in penile-vaginal penetration with her was in January/February 2012 (after she turned 16).

(b)     The Accused denied (i) having touched the Victim’s breasts and (ii) having digitally penetrated her vagina.

(c)     The Victim was a manipulative and domineering person.[note: 1]

Key issues for determination

7       It is not disputed that the Victim’s evidence, if believed, will prove that the Accused had committed the relevant offences in the Charges.

8       The key issue before me is whether the Victim’s evidence should be believed. Specifically, did she tell the truth regarding the following matters (“Key Issues”):

(a)     That the relationship with the Accused had begun when the Victim was in Primary 6 (2006)?

(b)     That he had committed the sexual acts described in the Charges before she turned 16?

9       In answering these questions, I am mindful that while the Prosecution had tendered “voluminous conversation records and exhibits” at the trial, such evidence was not generated at the time of the relevant incidents stated in the Charges. Ultimately, the whole case boils down to the Victim’s words against the Accused’s.[note: 2]

Applicable principles

10     It is well settled that in determining whether it is safe to convict based on incriminating evidence of a sole witness, a court must consider the following:

(a)     Is the evidence “unusually convincing”? For the considerations relevant to this assessment, see Public Prosecutor v Liang An Wey [2023] SGDC 231 at [65] – [68].

(b)     If the sole witness’s evidence is not “unusually convincing”, then the following issues must be addressed:

(i)       Which aspect of the witness’s evidence is unsatisfactory?

(ii)       Does such evidence create a reasonable doubt in the Prosecution’s case?

(iii)       If the answer is yes, then is there any evidence to support the unsatisfactory aspect of the witness’s evidence?

(iv)       Finally, if supporting evidence is available, then is the Prosecution’s case proven beyond reasonable doubt if such evidence is taken together with the witness’s evidence?

My decision

Victim’s evidence

11     In my view, the Victim’s evidence is unusually convincing. My reasons are as follows.

(a)      Evidence is internally consistent. I found that the Victim had remained coherent and consistent on the Key Issues. This is so despite intense cross-examination. In coming to this finding, I was mindful that there were some minor discrepancies between the Victim’s testimony and her police statement (exhibit D2). In my view, these discrepancies can be attributed to the fact that when the statement was being recording (2017), the Victim was asked to recall events that had taken place some seven years (2010) to 10 years (2007) ago. Such a long passage of time will understandably cause some memory – especially those relating to matters of lesser importance to the Victim – to fade. I note that the Defence did not make an issue with the discrepancies in the Victim’s evidence.

(b)      Evidence is textured. On the Key Issues and matters that were important to the Victim, I found that her evidence had gone beyond bare assertions. The details that she had provided regarding these issues and matters added to the overall credibility of her evidence. One example involves the 8th Charge. The Victim provided the following explanation as to why she was certain that the Accused had penetrated her vagina with his penis before she turned 16:

[…] I always told him not to put his penis in my vagina. So, when---when I reached out and I realised; that was when it really hurt me, because since I was in Sec 1 now, I couldn’t stop any of his sexual advances. … that was like my last, if I might say, it was the last thing I could protect for myself, so that’s why I told him not to insert his penis into my vagina. And that’s why when I realised, I was really shocked. So I […] ask him and say, “Why, why did you---why did you put your penis in my vagina?” Like, “Did you realise it?” […] I remember him walking into his study room casually, and just coming out and just asking me, “Have you turned 16 yet?” And in that moment, I remembered ask---answer him, I said “No.” […] But at that point of time, he asked, you know, I turned 16, and I didn’t understand the significance of it. And because I didn’t understand the significance of it, that’s why I remember it till now.[note: 3]

[emphasis and text in square brackets added]

For other examples where the Victim had provided details to support her evidence on the Key Issues, see [18] to [39] below (discussion on “Specific findings”).

(c)      Fair witness. I have found the Victim to be a fair witness. Her evidence was measured and not one-sided. When questioned on matters that she was not sure about, the Victim would readily say so.

(d)      No motive to lie. There is no evidence to suggest that the Victim had a motive to falsely incriminate the Accused. In fact, the following undisputed evidence debunks any such suggestion.

(i)       The Victim was not the one who had exposed the relationship. The expose was by VS – she had stumbled upon the relationship after discovering the Videos accidentally in 2017.

(ii)       After the relationship came to light, the Victim had begged her family not to report the Accused to the police.[note: 4] She had wanted to marry him and did not mind being his second wife.

(iii)       The only reason why the police report was lodged is because of the Victim’s parents. When VS and the Victim approached them about the Accused marrying the Victim, their parents had refused to give their blessing. They were angry that he had taken advantage of the Victim from a young age and had wanted him to be dealt with in accordance with the law.

(e)      Detriment to the Victim. The Victim had much to lose by maintaining her evidence on the Key Issues.

(i)       In so doing, she had exposed herself to the ordeal and embarrassment of being cross-examined about her sexual acts with the Accused.

(ii)       I believed the Victim when she testified about her fear that with the disclosure of her sexual acts with the Accused, people would be embarrassed to be her friend.

(iii)       Importantly, by the time of the trial, the Victim had already married and had a child. She was concerned that her child would be disappointed to have a mother like her if it knew about her evidence in court.

(f)      Testimony supported by other evidence. The Victim’s testimony regarding the Key Issues is also supported by various pieces of evidence. Such evidence includes (i) her WhatsApp messages with the Accused (Annex A) and (ii) the Videos. These pieces of evidence could not have been fabricated – they were generated contemporaneously, over many years, and long before the 2017 police report against the Accused.

12     Despite the above, the Accused contended that the sexual acts could not have occurred during the time periods stated in the Charges (“Contention”). I disbelieved his Contention.

(a)     According to the Accused, these time periods conflicted with the timings of his work and domestic commitments at the material time.[note: 5] I am not persuaded by the Contention. It is not disputed that the Contention was made without the assistance of any diary or other documentary record from the material time. In the circumstances, I find it unbelievable that the Accused –

(i)       could recall purely from memory the timings of his work and domestic commitments from some 13 years (2010) to 17 years (2006) before the trial (2023), and

(ii)       could be so certain that he did not have any free time whatsoever during the relevant period to meet the Victim.

(b)     The Accused’s wife (“Wife”) had also given evidence to support the Contention. I gave very little weight to her evidence.

(i)       According to the Accused’s own case, he was able to keep his relationship with the Victim a secret from the Wife for many years (from 2011 to 2017).[note: 6]

(ii)       It is also not disputed that the Wife was not present when the Victim met the Accused at the Flat,[note: 7] and when the sexual acts were committed (be it in the Flat or in the Car).

Given the above, the Wife would not be able to testify conclusively on the Key Issues.

Accused’s evidence

13     In contrast to the unusually convincing evidence of the Victim, I find the Accused to be an evasive witness whose evidence is inconsistent, self-serving, and unbelievable. During the trial, there were several major shifts in his evidence. The Accused had also displayed selective memory and given illogical excuses when probed on details of his defence. (See [23] and [30] below for further details.)

The Statements

Admission of the Statements

14     Importantly, the Accused’s defence (as summarised in [6] above) is materially contradicted by investigation statements recorded from him on 28 July 2017 (“28 July statement”) and on 29 July 2017 (“29 July statement”) (collectively, “Statements”). According to the Statements:[note: 8]

(a)     The Accused had romantic feelings for the Victim beginning in 2006 (i.e., when she was about 12 years old): see [19(c)] below.

(b)     When the Victim was in secondary school, the Accused would meet her at the Bedok Reservoir after her school commitments had ended: see [23(c)] below.

(c)     The Accused had performed sexual acts with the Victim when she was in Secondary 1 to 3 (i.e., before she turned 16): see [23(c)] below.

(d)     These acts included digital penetration of the Victim’s vagina: see [34(b)] below.

15     The Defence submitted that the Accused did not give the Statements voluntarily and they should thus be rejected. This submission was based on the following evidence by the Accused.

(a)     First, the recorder, ASP Alvin Chua (“ASP Chua”) had allegedly told the Accused the following when recording the 28 July statement:[note: 9]

(i)       The Accused was not to lie and was to tell him (i.e., ASP Chua) what he wanted to know (“Representation 1”).

(ii)       If the Accused refused to comply, ASP Chua would disbelieve him, and he (the Accused) would be looking at imprisonment of 10 years or more (“Representation 2”).

(iii)       The Accused should not make life hard as the Victim did not want to press charges (“Representation 3”).

(iv)       ASP Chua would be nice to the Accused if he believed him (“Representation 4”).

(b)     After the 28 July statement was recorded, ASP Chua told the Accused that he had better say something more or else he would be in bigger trouble (“Representation 5”).

(c)     ASP Chua then deliberately kept the Accused in the lockup for almost 18 hours. This was to increase the discomfort to the Accused before recording a further statement from him (i.e., the 29 July statement) (“Claim A”).

(d)     The Accused was depressed and distressed when the Statements were recorded. ASP Chua’s words – together with the long delay between the recording of the 28 July and 29 July statements – rendered these statements involuntary (“Claim B”).

(e)     Finally, the fact that the Accused was mentally frail when the Statements were recorded is supported by the fact that he had broken down during the trial and had to be admitted to hospital on several occasions.[note: 10] (“Claim C”)

16     I disbelieved the Accused’s evidence. My reasons are as follows.

(a)      Representation 1. ASP Chua testified that in general, he would have advised all his accused persons to tell the truth – and that he would have asked the Accused to say everything that he had wanted to say regarding the allegations.[note: 11] I accepted ASP Chua’s evidence. It is settled law that words such as “you had better tell the truth” – on their own – do not amount to a threat, inducement, promise or oppression. Whether such words would have this effect is to be assessed in the context of the individual case: Lim Thian Lai v Public Prosecutor [2006] 1 SLR(R) 319 at [18]. In the present case, there is no reason why ASP Chua’s mere reminder to the Accused to tell the truth would have rendered the Statements involuntary.

(b)      Representation 2 to Representation 5. ASP Chua denied having made Representation 2 to Representation 5.[note: 12] He explained that there was no reason for him to do so.[note: 13] With regards to Representation 5 specifically, ASP Chua testified that he would have told the Accused that the statement recording was not completed, and that he would thus have to continue with the recording the next day.[note: 14] I believed ASP Chua’s explanation.

(i)       He impressed me as a credible witness.

(ii)       Further, regarding Representation 5, the following bears noting.

(1)       The 28 July statement recorded the Accused’s relationship with the Victim from the time she was in Primary 6 through to her secondary school years. On the face of the statement, its purpose appears to be to record his account of what had happened during this period of the relationship. ASP Chua did not seek any clarification on the Accused’s account. The statement ended when it was the Accused’s dinner time.

(2)       The 29 July statement continued with where the 28 July statement had left off – i.e., after the Victim had left secondary school. It recorded the Accused’s account of the relationship after the Victim entered the polytechnic. From a perusal of the 29 July statement, it is evident that it was only after the Accused had completed providing his account of the relationship with the Victim that ASP Chua then sought clarifications on this account.

(3)       From the above, the 28 July statement and 29 July statement clearly covered different areas, and that the recording of the 29 July statement was not – as the Accused had suggested – to get him to change his account in the 28 July statement or to provide more incriminating evidence.

(iii)       ASP Chua’s denial of having made Representations 1 to 5 was corroborated by the interpreter for the Statements, Ms Maria bte Bazid (“Ms Maria”). According to her, if ASP Chua had threatened the Accused, she would have told her supervisor and made a record of this. Ms Maria testified that she did not make any such record in the Accused’s case. I saw no reason to doubt Ms Maria’s evidence.

(ii)       For completeness, even if Representation 2 to Representation 5 had been made, I am of the view that they did not objectively constitute a threat, inducement, or promise. I hold this view for the following reasons.

(1)       It is not entirely unclear from these representations what exactly the Accused was supposedly being induced to do. If ASP Chua’s intention was simply for him to tell the truth, then this is not objectionable per se: see [16(a)] above.

(2)       Objectively, the representations would not have given the Accused any reasonable ground for supposing that he would gain some advantage or would avoid some evil or of a temporal nature to himself: Gulam bin Notan Mohd Shariff Jamalddin v Public Prosecutor [1999] 1 SLR(R) 498 at [53]; Roshdi bin Abdullah Altway v Public Prosecutor [2022] 1 SLR at [68] and [69]. For instance, it is unclear from the representations what ASP Chua would do to the Accused specifically if the latter did not tell the truth.

(c)      Claim A. I did not find anything sinister with the 18-hour break between the recording of the 28 July statement (ended at 7.07 pm) and the 29 July statement (commenced at 2.53 pm). ASP Chua had given a reasonable explanation for the break – i.e., (i) to give the Accused time to rest and (ii) for ASP Chua to attend to other matters relating to the case.[note: 15]

(d)      Claim B. ASP Chua testified that at all material times, there was nothing to suggest to him that the Accused was distressed or unwell. If there were such signs, he would have stopped the statement recording and referred the Accused to a doctor.[note: 16] ASP Chua’s evidence was corroborated by Ms Maria.[note: 17]

(e)      Claim C. In my view, the Accused’s admissions to hospital during the trial (in 2023/2024) did not prove that he was mentally susceptible to pressure during the recording of the Statements (in 2017). The Defence’s attempt to link these two matters is entirely speculative.

(i)        First, there is a gap of about six to seven years between the admissions to hospital and the recording of the Statements.

(ii)        Second, no evidence was adduced to show that the Accused had suffered anxiety attacks or depression when the Statements were recorded (2017). This is significant as the Accused was someone who had no hesitation in seeking medical attention for his mental health condition. I say this because a medical report from Changi General Hospital dated 24 August 2023 (“Medical Report”) shows that he was seen from November 2012 to December 2014, September 2022, and March 2023 for depression and anxiety attacks. These dates coincided with the following stressful events to the Accused:

(1)       Work stress from the Accused’s principal (from 2011),[note: 18] grieving following the demise of the Accused’s father (from end 2012),[note: 19] as well as two occasions when the Wife encountered the Victim in the Flat (2012 and 2014).[note: 20]

(2)       The Accused’s case was undergoing Criminal Case Disclosure Conferences (September 2022).

(3)       The Accused was under cross-examination during the trial (March 2023).

(iii)        Finally, and in any event, it is evident from the Statements that the Accused did not admit to the Victim’s account on the Key Issues. The Accused testified that during the statement recording, he had hit the table with his hands and challenged ASP Chua to just charge him.[note: 21] Such evidence shows that the Accused was not afraid to insist on the correctness of his own account on the Key Issues. This evidence is inconsistent with the Defence’s case that the Accused was so mentally weak as to have given the Statements involuntarily or under oppression.

Specific findings

17     I will now state my findings on other matters that have arisen during the trial and in submissions.

Romantic relationship started when the Victim was in Primary 6

18     The Victim and the Accused had given divergent accounts as to when, and how, their relationship had begun.

(a)     According to the Victim, sometime in 2006, the Accused had passed her a piece of paper containing his phone number in the school library. She became close to him soon thereafter because they often chatted on MSN. On 6 September 2006, while they were alone in the school’s computer lab, the Accused showed her a piece of paper. It contained the words, “I love you”, in Malay. Later that same day, the Accused asked her to be his girlfriend over a phone call.[note: 22]

(b)     On the other hand, the Accused testified that the relationship began only in March 2011 – after the Victim had turned 16. This occurred during a meeting at Bedok Reservoir, when he had instinctively grabbed her hands while comforting her over her family problems.[note: 23]

19     I believed the Victim’s evidence that the relationship had begun in 2006 when she was in Primary Six. This evidence is supported by several pieces of evidence, including the following:

(a)     On 6 September 2013, the Victim had sent the following message to the Accused:

Oh anyway since today is 6th September, it’s exactly 7 years since you confessed to me, so happy 7th, my dear.[note: 24]

[Emphasis added]

The message alludes to a “confession” that the Accused had made to the Victim seven years before 6 September 2013. This meant that the “confession” would have been made on 6 September 2006. This is consistent with the Victim’s evidence summarised in [5] above.

(b)     In the Videos, the Victim stated that their romantic relationship had begun when she was in Primary 6 (2006):

You know it’s funny how I realised that I was stupid …, to have made the decision like to agree … like to be with you from the beginning cause like I find myself very naïve and it was in Primary Six [wipes tears] so that I find that everything was in a rush. …

[emphasis added][note: 25]

(c)     In the Statements, the Accused admitted that when the Victim was in Primary 6 (2006), he had felt a “special feeling” when he stood close to her from behind – it was akin to “hugging her from behind at close proximity”.[note: 26]

(d)     There are numerous messages in exhibit P18 – sent in 2011 and 2012 between the Accused and the Victim – which alluded to the two of them having been in a relationship for “years”. For some of these messages, see Annex A.

20     I will now explain why I believed the Victim’s evidence that the Accused had performed the sexual acts as stated in the Charges before she turned 16.

1st to 3rd Charges – Kissing, touching and masturbation in the Car

21     I start with the 1st to 3rd Charges. The Victim gave the following evidence:

(a)      1st Charge. When the Victim was in Secondary 1, the Accused had frequently brought her to a secluded place where there was pond with turtles in it. This was so that they could meet in privacy. During one such outing in 2007, the Accused gave the Victim her first kiss.[note: 27]

(b)      2nd and 3rd Charges. In Secondary 2 (2008), the Victim had canoeing practices at Bedok Reservoir. After the practices had ended, she would spend time with him in the Car. On these occasions, the Accused would kiss her, as well as touch her breasts and vagina (over her clothes). The Victim did not resist because she was too tired after her canoeing practices. The Accused would also masturbate himself. There were times when he would ask the Victim to help him masturbate as well, but she would refuse.

22     I found the Victim’s evidence to contain a ring of truth. It contained a lot of details on peripheral matters. These details – which enhanced the credibility of the Victim’s evidence – include the following:

(a)      1st Charge. The Victim could recall her first kiss because it was an unpleasant and unexpected experience. During the kiss, the Accused had put his tongue into her mouth. She was put off by the “taste” and wanted to gag.[note: 28]

(b)      2nd Charge. The Victim could recall that she was in Secondary 2 when the Accused began touching her breasts and vagina in the Car at Bedok Reservoir. This is because the Accused had commented that she smelled good despite her being sweaty after her canoeing practices.

(c)      3rd Charge. The Victim could also recall that he had performed the sexual acts in 2008 after one of her religious classes. This is because these classes were in 2008.

23     In contrast, I found the Accused’s evidence regarding the 1st to 3rd Charges to be highly unsatisfactory.

(a)     During the trial, the Accused gave conflicting evidence on whether he had met the Victim at Bedok Reservoir while she was in secondary school.

(i)       Initially, the Accused accepted that such meetings had taken place. In fact, he gave extensive evidence regarding these meetings during the trial in March 2023. According to him, they took place in the afternoons – whenever they were both available. During these meetings, he had sat in the driver’s seat while the Victim sat at the rear passenger seat. When asked why they would have chat in such a “weird configuration”, the Accused explained that “it was the appropriate thing to do” – in case passersby misunderstood what the two of them were doing in the Car.[note: 29]

(ii)       However, during the trial in August 2023, the Accused completely denied having ever met the Victim at Bedok Reservoir when she was in secondary school. He testified that such meetings were “not possible” because of his work and domestic commitments at the material time.[note: 30]

(b)     The Accused had failed to provide a satisfactory explanation for this dramatic shift in his evidence. In my view, this shift occurred because the Accused had realised (belatedly) that by admitting to the meetings at Bedok Reservoir, he had in fact corroborated the Victim’s evidence that the sexual acts had occurred during such meetings.

(c)     The Accused’s denial of the 1st to 3rd Charges is also contradicted by the 28 July statement. In this statement, he had stated the following:

(i)       When the Victim was in Secondary 1 (2007), the Accused began kissing and hugging her, and groping her private parts and breasts over her clothing.[note: 31]

(ii)       When the Victim was in secondary school, the Accused had met her in the Car at Bedok Reservoir. During these meetings, the Victim was sweaty and did not want him to smell her sweat.[note: 32]

4th Charge – Licking the Victim’s vagina

24     I now come to the 4th Charge.

25     The Victim testified that the Accused had licked her vagina when she was in Secondary 2 (2008). This happened in the Flat.

26     According to the Accused, such an act did not take place until 2011.

27     I found the Victim’s evidence regarding the timing of the incident to be more credible.

(a)     The Victim had given convincing reasons as to why she could recall this incident vividly.

(i)        First, the Accused had sent her a message that his “hands were tied” and that she was to take a taxi to the Flat. At the material time, she had genuinely believed that the Accused “was in trouble”.

(ii)        Second, that occasion was (1) the first time that she had taken a taxi on her own, (2) the first time that she visited the Flat, and (3) the first time that the Accused licked her vagina. She remembered being in PE shirt at the material time and not knowing how to react to the sexual act.[note: 33]

(iii)        Third, the Accused had reprimanded her for disclosing his unit number to the taxi driver, and for greeting him too loudly as she entered the Flat. The Accused was upset because he did not want his neighbours to be alerted to her presence in the Flat.

(b)     The Victim testified that she began cutting her left wrist with a penknife in Secondary 2 – the same year as the incident in the 4th Charge. The Victim explained that she had done so because she felt powerless in resisting the Accused’s sexual advances. When the Victim responded to the Accused’s sexual advances by curling up, he would (i) scream at her for not complying, (ii) accuse her of liking other guys, and (iii) then uncurl her body. At times, the Accused would even “go crazy” by kicking and throwing things in the Flat. The Victim’s evidence that she had cut herself is corroborated by a photo (exhibit P24). It shows faint marks of what appear to be old wounds on the Victim’s wrist.

5th Charge – Rubbing of penis against the Victim’s vagina

28     I next turn to the 5th Charge. The Accused admitted that he had rubbed his penis against the Victim’s vagina (skin-to-skin). He however disputed the Victim’s evidence that the act had occurred in 2009. According to the Accused, the act took place only after the Victim had turned 16 (in 2010).

29     In my view, the Victim was telling the truth. Her evidence on the 5th Charge is clear and consistent.

30     In contrast, the Accused’s evidence is highly unsatisfactory.

(a)     During the trial in March 2023, the Accused expressly stated that he had begun rubbing his “crotch” against the Victim’s “vagina” skin-on-skin in December 2011.[note: 34]

(b)     During the trial in August 2023 however, the Accused testified that the Victim “wears jeans all of the time” and therefore he had “never been able to touch skin-on-skin on her […] until 2012”.[note: 35]

(c)     When confronted with his inconsistent evidence above, the Accused testified that he could not recall when he had first start rubbing the Victim’s private parts skin-on-skin.[note: 36]

6th and 7th Charges – Digital penetration and masturbation at Block 492D

31     I now turn to the 6th and 7th Charges.

32     According to the Victim, there were occasions in 2009 when she had met the Accused in the evenings at a raised concrete well at Block 492D. (She did not meet the Accused in the Flat because the Accused’s wife and children were at home.) On some of these occasions, the Accused and the Victim had climbed into the well. In the well (which was dark), the Victim helped the Accused to masturbate. He had also digitally penetrated her vagina.

33     The Accused denied having engaged in digital-vaginal penetration with the Victim. He also denied having performed any sexual act at Block 492D.

34     I preferred the Victim’s evidence.

(a)     I find the location and circumstances in which the sexual acts in the 6th and 7th Charges had taken place to be highly unusual. If the Victim had wanted to falsely implicate the Accused, she would have conjured a simpler story – e.g., that the acts had taken place in the Car. The unusualness of her account lent weight to its credibility.

(b)     Furthermore, the Accused’s denial of having digitally penetrated the Victim’s vagina is contradicted by the 28 July statement. In that statement at [11] and [12], he had admitted to having rubbed her vagina with his fingers while she was in Secondary 2 (2008) or Secondary 3 (2009).

8th Charge – Penile-vaginal penetration

35     Finally, I come to the 8th Charge.

36     The Victim gave the following evidence.[note: 37]

(a)     For a period prior to her 16th birthday, the Accused had been rubbing his penis against her vagina (skin-on-skin). She had insisted that the Accused was not to insert his penis into her vagina. The Victim had wanted to keep her virginity until she got married.

(b)     Despite her insistence, the Accused penetrated her vagina with his penis sometime after her O levels examinations (12 November 2010) but before her 16th birthday (1 December 2010). This occurred in the Flat. At the material time, the Accused had been rubbing his penis against her vagina. At some point, she felt pain in her vagina. When the Victim touched her vagina, she discovered that the Accused’s penis was in it.

(c)     The Victim was very upset with what the Accused had done. She asked him whether he had knowingly penetrated her and why. In response, the Accused casually asked whether she had turned 16 yet. She replied no.

37     The Accused, on the other hand, claimed that he had penile-vaginal penetration with the Victim only in January or February 2012 (after his father’s passing in December 2011) – i.e., when she was 17 to 18 years old.[note: 38]

38     I believed the Victim. Her evidence that the Accused had penile-vaginal penetration with her before her 16th birthday is materially supported by the following message that she had sent to the Accused. (This message was sent on 26 June 2011[note: 39] – i.e., before the date which the Accused claimed that the penetration had taken place):

Dah. Stop saying f. I feel so.. Nvm la.. What's it to you anyway. You don't care bout me being a v what right. To you , my pride don’t count.

[Emphasis added]

The Victim explained that “v” meant “virgin” and “pride” referred to her “virginity” – something that she valued. According to the Victim, the message conveyed her sense of worthlessness after having lost her virginity to the Accused out of marriage.[note: 40]

39     Before concluding, I wish to address a few matters raised by the Defence.

Delay in reporting

40     The first is their submission that I should disbelieve the Victim’s evidence on the Key Issues because the police report against the Accused was lodged only in June 2017 – i.e., about seven years after the last of the sexual acts had taken place in 2010.[note: 41]

41     I am unable to agree with this submission. As a matter of principle, a delay in reporting does not necessarily mean that the Victim’s evidence on the Key Issues is a recent fabrication. One needs to look at the circumstances and reasons for the delay: Public Prosecutor v Tan Chee Beng [2023] SGHC 93 at [127].

42     In this case, I am satisfied that the delay did not undermine the credibility and reliability of the Victim’s evidence. Let me explain.

(a)     The Victim was only 12 to 13 years old when the Accused first approached her to be his girlfriend: see [18(a)] above. As a young and impressionable child, it is not surprising that the Victim did not suspect that anything was amiss. As the High Court had noted in Public Prosecutor v Yue Roger Jr [2019] 3 SLR 749:

31    … While the average adult may be expected to react in a particular way – for example, to resist, report or complain about an assault as soon as possible – a child or juvenile cannot be expected to always react similarly. The thinking process, assumptions and viewpoint of a child or juvenile victim may lead to a course of action that may on its face appear unreasonable or improbable to an adult. However, the court must always be mindful of the reasons behind what may seem like unexpected conduct on the part of a child or juvenile victim, and should not measure a child or juvenile by adult standards.

31    … A child or juvenile is by definition immature, and should not, in the absence of evidence showing otherwise, be held to the measure of an adult. The thought processes and concerns of a child or juvenile may also continue to evolve and permutate as he or she matures, such that it may be some time before he or she is in a position to complain.

(b)     Apart from immaturity, there were other reasons why the Victim had wanted to keep the relationship a “secret”. She was afraid to tell her parents that she was involved with the Accused, an older man. Furthermore, she was concerned that disclosing the relationship would get him into trouble and wreck his marriage.[note: 42]

Claim that the Victim is manipulative

43     The Accused had also claimed that the Victim was the dominant party in their relationship. According to him, she had exploited his “fragile mental state” to manipulate him.[note: 43]

44     I found such evidence to be inherently unbelievable.

45      First, there is a 21-year age gap between the Accused and the Victim. At the time of the offences, the Victim was only a young child of between 12 and 15 years old. On the other hand, the Accused was much more mature – between 33 and 36 years old – and was her teacher. The Accused was clearly in a position of influence over the Victim.

46      Second, it is evident from the messages between the parties (exhibit P19) that the Accused had a habit of using abusive language and of threatening the use of violence when he was unhappy with the Victim – even over minor things. For instance, one of the messages between the parties in 2010 revealed that the Accused had chased the Victim in the Flat holding a knife because of an issue relating to his sexual advances.[note: 44] (According to the Victim, she had no choice but to arm herself with a knife from the kitchen in self-defence.) This message did not square with the portrayal of the Accused as a man who could be easily manipulated.

47      Third, there are numerous messages in exhibit P19 which disclosed that the Accused was in fact the possessive and manipulative party in the relationship. These messages included the following:

(a)     The Victim had to ask the Accused whenever she wanted to meet with her male schoolmates.[note: 45]

(b)     On one occasion, the Accused was furious when the Victim replied that it was not possible for her to comply his demand to “COME NOW!” She had to pacify the Accused even though the Accused had sent her abusive messages.[note: 46]

(c)     The Accused had also threatened to “deal with [the Victim] when the time comes” – simply because she could not accommodate his last-minute request to meet him. When the Victim counter-proposed a later meeting time, the Accused (i) replied “F!”, (ii) declared “Intergalactic war!”, (iii) accused her of being self-centred, and (iv) belittled her with derogatory remarks when the Victim told him not to be vulgar, that she wanted to end their sinful relationship, and that all the Accused are about was fulfilling his “desires”.[note: 47]

(d)     The Victim testified that she had previously tried to break up with the Accused while she was in Secondary 2 (2008) and again in Secondary 3. However, she changed her mind because the Accused had threatened to visit her at school to create a scene with the male schoolmates whom he had suspected that she was seeing. The Victim did not want her friends to get hurt.

Conclusion

48     To conclude, I find that the Prosecution had proven its case beyond reasonable doubt on the Charges and convicted the Accused accordingly.

_________________________________________________

ANNEX A

MESSAGES in 2011 and 2012

accused and victim HAD been in A RELATIONSHIP for years

S/N

Date

From/To

Message

404

11.06.11

Victim/Accused

… I'm a girl who craves for attention and being pampered by a boyfriend. I never wanted to share any love with anyone. Even if I was the third party. I'm selfish just that way. You cant change that. For years you tried to handle the love equally but I can't take it anymore. Jealousy eats out a big part of me. It's just me being selfish yet again but sigh, I cant stay on. So many restrictions to live with, how am I to survive?

[emphasis added]

635

07.07.11

Victim/Accused

… Happy advanced birthday. Year in year out I've been telling you bout your weakness. This time i give up in doing so. Live your life the way you want it. I don't wanna be part of it anymore. I lost , my bad. It's time to repent and you should start anew. …

[emphasis added]

1137

21.08.11

Victim/Accused

Oi. Dont you ever know how to reply my messages! This is what I mean when I say if I were to be with other guys then they'll be nice enough to reply me! And they reply even when im nonsensical or moody! If you think that you've put up with me for so many years, and don't wanna do it anymore, least let me know. IM A TYPICAL 17 YEAR OLD KID STILL WHEN IT COMES TO R/S! …

[emphasis added]

1871

19.12.11

Victim/Accused

You know it's just so hard to do certain things when you're so persistent on that thing. It's like even if I wanna repent or smth I can't cause you never take me seriously. My words in fact. Back in 2008, I still remember how you'd still do it despite the fact I was wearing it. Idk uh. I really wanna leave you at times. Because the situation is already so bad and like I just don't want to stay. At all.

[emphasis added]

Note. The Victim explained that in the message, she was referring to how the Accused had persisted in asking her for sexual favours (“that thing”, “still do it”) when she was wearing a tudung (“wearing it”). The message alluded to the Accused wanting sexual favours from her “[b]ack in 2008”, and to the Victim’s desire to leave him “at times” since 2008.

1872

19.12.11

Victim/Accused

Hmm, right now. I just wanna leave and be free. You know, like act my age and such. Not say go clubbing all. But just being me, like other girls, having eye candies and such without feeling so wrong. Up to you to think how you want to but what I'm trynna say is, it's as though I never felt how being single is like. It's like I'm out and I know I'm with someone but idk im actually in love with you. Sometimes I feel Like I stayed because of your stories and not my heart. Idk how to say. I know you try showering me with love and such but Idk if I feel the same way. …

[emphasis added]

1873

19.12.11

Accused/Victim

In the end it goes back to the same old you, that you need boys in your life. Because ironically, no matter what you say, it's been so long, in fact years, since I really stopped you from doing anything else. So the crux of the matter is, you can't live without boys! It's killing you!

[emphasis added]

Note. The Accused did not deny that reference in the Victim’s message that their relationship went back to 2008. Instead, his response appears to be typical of an angry lover in a “long” relationship that had gone on for “years”. I find the Accused’s claim as to why he did not correct the Victim’s reference to their long-standing relationship – namely that he did not respond to messages containing false allegations – to be unbelievable. There are numerous examples where the Accused had sent messages containing expletives and threats to the Victim over minor matters simply because he disagreed with what she had stated: see [47] above.

1875

19.12.11

Victim/Accused

Yeah yeah anything you say. So can I make my move now? Cause at the end of the day too, you'll still be you and not stop it. It's been years too.

[emphasis added]

2349

18.05.12

Victim/Accused

You know what hurts is most is that no matter how long we've been together, theres no future in us, cause you're already in that status and even then you don't wanna let me go. I mean honestly I appreciate it but it's killing me everyday. Even if you don't wanna let me go, you don't even trust. Like all these years for nothing. You go missing, you don't even text unless you're able to meet me which comes of as lust. K nvm that part, but fact is, at the end, you can't see me happy with other people. I know you can give me happiness etc but how to when you've already so much commitments in hand? Where does that leave me. FCUK how insecure I always feel.

[emphasis added]



[note: 1]Defence’s Closing Submissions dated 18 June 2024 at [5].

[note: 2]Defence’s Closing Submissions dated 18 June 2024 at [4(b)], [19] and [20].

[note: 3]Record of Proceedings for Day 4 at page 58 (line 20) to page 59 (line 12).

[note: 4]Prosecution’s End of Trial Closing Submissions dated 6 June 2024 at [140].

[note: 5]Defence’s Closing Submissions dated 18 June 2024 at [6(d)], [24] – [33].

[note: 6]Defence’s Closing Submissions dated 18 June 2024 at [5(c)] to [5(e)].

[note: 7]Defence’s Closing Submissions dated 18 June 2024 at [30(c)].

[note: 8]See the Prosecution’s End of Trial Closing Submissions dated 6 June 2024 at Annexes A to H.

[note: 9]Defence’s Skeletal Submissions dated 5 February 2024.

[note: 10]Defence’s Closing Submissions dated 18 June 2024 at [6(e)], [34] – [41].

[note: 11]Record of Proceedings for Day 17 at page 51 (line 26) to page 52 (line 20).

[note: 12]Record of Proceedings for Day 17 at page 52 (lines 17 – 27), page 54 (line 18) to page 55 (line 21).

[note: 13]Record of Proceedings for Day 17 at page 59 (line 5) to page 60 (line 26).

[note: 14]Record of Proceedings for Day 17 at page 64 (lines 2 – 13).

[note: 15]Record of Proceedings for Day 17 at page 56 (lines 20 – 26).

[note: 16]Record of Proceedings for Day 17 at page 51 (lines 11 – 25), page 58 (lines 9 – 17).

[note: 17]Record of Proceedings for Day 19 at page 14 (lines 2 – 18), page 16 (line 18) to page 18 (line 22).

[note: 18]Record of Proceedings for Day 11 at page 2 (line 11) to page 3 (line 10).

[note: 19]Record of Proceedings for Day 11 at page 11 (line 21) to page 12 (line 11).

[note: 20]Record of Proceedings for Day 11 at page 12 (line 21) to page 14 (line 26).

[note: 21]Defence’s Closing Submissions dated 18 June 2024 at [39(c)].

[note: 22]Records of Proceedings for Day 4 at page 8 (line 5) to page 9 (line 30).

[note: 23]Record of Proceedings for Day 9 at page 98 (line 27) to page 102 (line 12), page 104 (line 23) to page 105 (line 14).

[note: 24]See P18 at Annex F, s/n 542.

[note: 25]See transcript of Videos (exhibit P4) at page 3 (time stamp at 09:00).

[note: 26]Investigation statement recorded on 28 June 2017 (exhibit P32) at [3]; Investigation statement recorded on 29 June 2017 (exhibit P33) at Q/A 8.

[note: 27]Record of Proceedings for Day 4 at page 27 (line 17) to page 28 (line 10).

[note: 28]Record of Proceedings for Day 4 at page 28 (lines 12 – 25).

[note: 29]Record of Proceedings for Day 9 at page 37 (line 18) to page 40 (line 28), page 44 (line 28) to page 45 (line 20), page 53 (line 27) to page 54 (line 23).

[note: 30]Record of Proceedings for Day 11 at page 27 (line 6) to page 29 (line 1).

[note: 31]Investigation statement recorded on 28 June 2017 (exhibit P32) at [6] – [8].

[note: 32]Investigation statement recorded on 28 June 2017 (exhibit P32) at [4].

[note: 33]Record of Proceedings for Day 4 at page 29 (line 7) to page 30 (line 2), page 45 (lines 23 – 26); Record of Proceedings for Day 6 at page 75 (line 30) to page 77 (line 14).

[note: 34]Record of Proceedings for Day 9 at page 117 (line 25) to page 118 (line 7).

[note: 35]Record of Proceedings for Day 11 at page 6 (lines 23 – 31).

[note: 36]Record of Proceedings for Day 17 at page 7 (lines 7 – 28).

[note: 37]Record of Proceedings for Day 4 at page 58 (line 17) to page 59 (line 17).

[note: 38]Record of Proceedings for Day 11 at page 10 (lines 23 – 28).

[note: 39]See exhibit P19 at s/n 564.

[note: 40]Record of Proceedings for Day 5 at page 6 (line 23) to page 7 (line 2).

[note: 41]Defence’s Closing Submissions dated 18 June 2024 at [4(a)], [13] – [15]; police report (exhibit P1).

[note: 42]Record of Proceedings for Day 5 at page 93 (line 26) to page 94 (line 23); Record of Proceedings for Day 4 at page 34 (lines 29 – 32); Record of Proceedings for Day 5 at page 23 (lines 29 – 32); Record of Proceedings for Day 6 at page 30 (line 29) to page 31 (line 15).

[note: 43]Defence’s Closing Submissions dated 18 June 2024 at [18].

[note: 44]Exhibit P19 at s/n 561.

[note: 45]See e.g., exhibit P19 at s/n 410 (13 June 2011).

[note: 46]See exhibit P19 at s/n 500 to 527 (26 June 2011).

[note: 47]See exhibit P19 s/n 651 to 684 (15 July 2011).

"},{"tags":["Criminal Law – Statutory Offences – Immigration Act – Charge of alleged abetment of “marriage of convenience” – Bases for verdict and sentence"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No. DAC-931055-2017, Magistrate's Appeal No. 9055-2024-01","title":"Public Prosecutor v Kok Chiang Loong","citation":"[2024] SGDC 259","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32250-SSP.xml","counsel":["ASPs (ICA) Syed Mubaruk & Ganeshvaran Dhanasekaran for the Public Prosecutor","Charles Yeo (L F Violet Netto) (Discharged on 2 August 2022) and Rajwin Singh Sandhu (Rajwin & Yong LLP) (Discharged on 14 January 2024) for accused Kok Chiang Loong","K Jayakumar & Adrienne Grace Milton (Discharged on 18 March 2021, where he was thereafter self-represented as an accused in person) (Jay Law Corporation) for co-accused Goh Khoon Beng"],"timestamp":"2024-10-14T16:00:00Z[GMT]","coram":"Marvin Bay","html":"Public Prosecutor v Kok Chiang Loong

Public Prosecutor v Kok Chiang Loong
[2024] SGDC 259

Case Number:District Arrest Case No. DAC-931055-2017, Magistrate's Appeal No. 9055-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Marvin Bay
Counsel Name(s): ASPs (ICA) Syed Mubaruk & Ganeshvaran Dhanasekaran for the Public Prosecutor; Charles Yeo (L F Violet Netto) (Discharged on 2 August 2022) and Rajwin Singh Sandhu (Rajwin & Yong LLP) (Discharged on 14 January 2024) for accused Kok Chiang Loong; K Jayakumar & Adrienne Grace Milton (Discharged on 18 March 2021, where he was thereafter self-represented as an accused in person) (Jay Law Corporation) for co-accused Goh Khoon Beng
Parties: Public Prosecutor — Kok Chiang Loong

Criminal Law – Statutory Offences – Immigration Act – Charge of alleged abetment of “marriage of convenience” – Bases for verdict and sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9055/2024/01.]

30 September 2024

District Judge Marvin Bay:

Introduction

1       These are my grounds for the verdict, and sentence imposed, in the proceedings taken by the State against the accused person Kok Chiang Loong (“Mr Kok”). Mr Kok is a male Singapore citizen presently aged 44, and accused of abetting one Goh Khoon Beng (“Mr Goh”), a male Singaporean, presently aged 45, to enable the latter to contract a marriage of convenience with a female Georgia national, one Akhalkatsi Maia, presently aged 37 (“Ms Maia”) on 2 February 2016. It should be clear that while both were convicted and sentenced, only Mr Kok has appealed. These grounds will also cover facts and circumstances relating to Mr Goh’s case as these would be inextricably linked to salient aspect Mr Kok’s case, and of course to establish that consistency in sentencing was observed.

The charge

2       The proceeded charge states as follows:

(Mr Kok is) charged that (he) on or before 2 February 2016, did abet one Goh Khoon Beng (‘Mr Goh’) by instigating him to enter into a marriage of convenience with one Akhalkatsi Maia, (a female born on 13 December 1985) (‘Mr Maia’), at 15 Kew Terrace, Singapore, to wit, by instructing ‘Mr Goh’ to enter into a marriage with ‘Ms Maia’ and in consequence of the abetment, the said (Mr Goh) did enter into a marriage with the said (Ms Maia) on 2 February 2016, to assist the said ‘Ms Maia’ to obtain an immigration advantage in the form of a Visit Pass, and gratification in the form of free lodging was given to (Mr Goh) by (Ms Maia) as a reward for entering into the said marriage, and (he has) thereby committed an offence under Section 57C(1) of the Immigration Act (Cap 133) read with Section 109 of the Penal Code (Cap 224) and punishable under the Section 57C(1) of the Immigration Act.

3       Section 57C (1) of the Immigration Act Cap 133 (Rev Ed 2008) criminalises marriages of convenience with the provision specifying that: “Any person who contracts or otherwise enters into a marriage --

(a)    knowing or having reason to believe that the purpose of the marriage is to assist one of the parties to the marriage to obtain an immigration advantage; and

(b)    where any gratification, whether from a party to the marriage or another person, is offered, given or received as an inducement or reward to any party to the marriage for entering into the marriage (commits an offence).

Outline of prosecution’s case

4       Simply stated, the charge asserted that the marriage contracted between Mr Goh and Ms Maia had essentially been a “marriage of convenience”, which was otherwise than a genuine marriage, and entered into for a fraudulent purpose, where the latter would receive an immigration advantage, and where Mr Goh, an indigent, who was reduced to living an itinerant lifestyle with no fixed abode, would stand to gain free lodging by staying with Ms Maia.

5       The prosecution contended that, in relation to the above, Mr Kok had abetted Mr Goh by instigating him to enter the alleged marriage of convenience with Ms Maia, with the intent of assisting her in securing an immigration advantage in the form of a Visit Pass as a foreign spouse, with the concomitant inducement of free lodging provided to Mr Goh.

Significant developments at trial

6       Notably, this was a trial that had started with three accused persons being the three named persons in the charge. Mr Kok, the appellant accused person, had been joined by two co-accused persons at the beginning of the trial, being the two direct contractors of the impugned union, which was alleged to be a marriage of convenience. Mr Kok had retained Mr Charles Yeo from the firm of LF Violet Netto, with Mr Jayakumar Naidu and Adrienne Grace Milton from Jay Law Corporation representing Mr Goh and Ms Maia.

7       The trial proper, excluding submissions had taken a full 38 days, and involved developments which included the departure of Mr Charles Yeo on 1 August 2022, when he had abruptly announced his refusal to return after having left the country on LEJUR bail. Mr Rajwin Singh Sandhu of Rajwin & Yong LLP had taken over conduct thereafter.

8       Another momentous development had been Ms Maia’s decision to take a certain course on 8 January 2021, which left the proceedings with just two accused individuals. Mr Goh, citing financial constraints, had eventually discontinued Mr Jayakumar’s and Ms Milton’s representation, and elected to represent himself. At that juncture, Mr Goh, while formally continuing to claim trial, had effectively ceased to actively contest the prosecution’s case. Mr Goh did not disagree with most of the prosecution’s fundamental assertions against him and Mr Kok, and only contested fairly insignificant details.

9       It would, in my view, add unnecessary prolixity to cover each and every development of this lengthy trial to explain my decision on conviction and sentence. These grounds will thus focus on critical aspects of Ms Maia and Mr Goh’s testimony on their interactions with Mr Kok. These, in my judgement, ineluctably show the latter to not just have been complicit, but was effectively the prime mover of the marriage of convenience

MAIA AKHALKATSI

Plea of guilt of PW7, Maia Akhalkatsi

10     As mentioned above, the trial had begun with three co-accused persons with Ms Maia being the third co-accused person, who was no longer in the contested proceeding at its conclusion. As a very consequential development, Ms Maia had in the course of the joint trial, elected to plead guilty to a single charge under Section 57C (1) of the Immigration Act. Ms Maia had received a sentence of 6 months’ imprisonment on 8 January 2021 and then stood as a prosecution witness before being deported to her native Georgia.

11     I now set out Ms Maia’s Statement of Facts[note: 1] where she had made certain admissions salient to the present case[note: 2]:

The accused is Akhalkatsi Maia, a 35-year-old female Georgia national bearing (as stated) On 21 October 2016, the accused was arrested by Immigration & Checkpoints Authority (“ICA”) officers for engaging in a marriage of convenience with one Goh Khoon Beng, a 42-year old Singapore citizen whom the accused addresses as Alex (‘Alex’).

BACKGROUND

2.    The accused first arrived in Singapore on 6 June 2015 for sight-seeing and with an intention to search for a job. At that time, she was searching for better job opportunities because she was the sole breadwinner supporting her family in Georgia. The accused was unable to get a job during her visit in Singapore. Subsequently, prior to the expiry of her visit pass, the accused departed to Malaysia on 4 July 2015 and re-entered Singapore on 10 July 2015 to continue search for a suitable job. She was unsuccessful in her attempts and departed Singapore to Georgia on 8 July 2015.

3.    Consequently, on 23 September 2015, the accused re-entered Singapore from Georgia to search for a job again. Investigation revealed that on 18 October 2015, the accused extended her Visit Pass until 22 November 2015. During her stay here, she rented a room located at 24 River Valley Close # XXX, Pacific Mansion (“Pacific Mansion”). Since the accused was not successful in getting job, she started to work as a freelance prostitute. Consequently, she got acquainted with an unknown female Vietnamese at a pub located at Hyatt Hotel.

4.    During their conversation, the accused was informed that she could apply for a Student’s Pass to remain in Singapore. The accused was then told to contact one Kok Chiang Loong (‘Loong’) to obtain details about applying for a Student’s Pass. Sometime early November 2015, the accused met Loong. Subsequently, arrangements were made by Loong to enroll (sic) the accused at Dimensions International College (‘College’) located at River Valley Road and the College applied for a Student’s Pass for the accused.

5.    On 21 November 2015, the accused departed Singapore to Georgia since her Visit Pass was going to expire the following day. Sometime middle of December 2015, the accused received an email from the College stating that her Student’s Pass application was not approved. She then contacted Loong for advice since she wanted to work in Singapore.

FACTS RELATING TO THE CHARGE (DAC-938992-2016)

6.    Loong proposed to the accused that he could introduce a partner to take care of her so that she could come to Singapore and remain to work. Subsequently, Loong gave the contact number of Alex for the purpose to know each other better. The accused then communicated with Alex via WeChat and Viber Chat. Consequently, Loong made arrangements for the accused to return to Singapore. On 7 January 2016, the accused arrived in Singapore and stayed at Pacific Mansion.

7.    Thereafter, the accused went to meet Alex and Loong at a Vietnamese restaurant located at Marina Square. The accused met Alex for the first time and assessed him to be a filthy person. She was then persuaded by Loong that he could change his appearance and arrange for her to marry Alex so that the accused would remain in Singapore. In return, the accused had to provide shelter to Alex. Investigation revealed that at that material time, Alex did not have a permanent place of abode and was temporarily residing at the Vietnamese restaurant. The accused agreed with the proposal and accepted to marry Alex.

8.    The accused and Alex solemnized their marriage on 2 February 2016 at Loong’s grandparent’s residence located at 15 Kew Terrace, Singapore. After the marriage, Alex stayed together with the accused in her room at Pacific Mansion. They did not consummate their marriage. About a month later, a tenant vacated a room located adjacent to the accused’s room. She then rented it for Alex to reside and paid rental of S$1,000 every month for him.

9.     After the marriage, the accused submitted application for Visit Pass on numerous occasion that were sponsored by Alex. The applications were approved, and her Visit Pass was extended on each occasion. On each occasion, the accused gave Alex ranging from S$50 to S$100 and at the same time supported him with his daily expenses.

10.     By virtue of the above, the Accused, on 2 February 2016, at 15 Kew Terrace, Singapore, did enter into a marriage with Alex, having reason to believe that the purpose of the marriage was to obtain an immigration advantage in the form of a visit pass for herself, and where a gratification of free lodging was given to Alex as a reward for entering into the said marriage and she has thereby committed an offence under Section 57C(1) of the Immigration Act (Cap 133), punishable under the same section of the said Act.

[Emphasis added]

Timeline of significant events

12     For ease of reference, I have set out a timeline of notable events from information set out from sources such as Ms Maia’s earliest investigative statement[note: 3] which had been recorded on the day of her arrest, her admissions in her Statement of Facts when she pleaded guilty on 8 January 2021, and her testimony as a prosecution witness on 29 March 2021.

6 June 2015:

Ms Maia first arrives in Singapore for sightseeing and job hunting

4 July 2015:

Ms Maia departs to Malaysia

10 July 2015:

Ms Maia re-enters Singapore

8 July 2015:

Ms Maia departs Singapore for Georgia

23 September 2015:

Ms Maia re-enters Singapore from Georgia

18 October 2015:

Accused extends her Visit Pass until 22 November 2015

21 November 2015:

Ms Maia departs Singapore for Georgia

Mid-December 2015:

Ms Maia receives email that her Student's Pass application was not approved, and whereupon Mr Kok allegedly proposes to her that he could introduce a “partner” to take care of her so that she could come to Singapore and remain to work

1 January 2016-

Notice of intention to marry under Form A of the Women’s Charter (Chapter 353) is filed on Ms Maia’s behalf.

7 January 2016:

Ms Maia returns to Singapore

15 January 2016:

Ms Maia pays Mr Kok $4,000 for arranging the marriage.

23 January 2016:

At the original scheduled date of the wedding, Ms Maia declines to proceed with the marriage.

2 February 2016:

Ms Maia marries Mr Goh at Mr Kok’s grandparents’ residence in Kew Terrace, Singapore. After the marriage, while Mr Goh stays with Ms Mia in her room at Pacific Mansion, they reportedly do not consummate their marriage.

4 February 2016:

The first extension application for Ms Maia’s Visit Pass is submitted

About March 2016:

Ms Maia rents an adjacent room at Pacific Mansion for Mr Goh

11 April 2016-11 October 2016:

Mr Goh facilitates Ms Maia’s stay by submitting multiple periodic applications for Visit Passes[note: 4].

21 October 2016:

Ms Maia is arrested by Immigration & Checkpoints Authority (ICA) officers

8 January 2021:

Ms Maia pleads guilty to the mirror charge against her in SC-910863-2016 and is sentenced to six months’ imprisonment.

29 March 2021:

Ms Maia appears as a prosecution witness PW-7 for the trial against her two remaining co-accused; Mr Kok and Mr Goh.



Ms Maia’s background before meeting the accused[note: 5]

13     As can be seen from the Statement of Facts, Ms Maia stated that she had on 21 October 2016, been arrested by Immigration & Checkpoints Authority (“ICA”) officers for engaging in a marriage of convenience with Mr Goh. She provided a richly detailed background of how she had come to contract her marriage of convenience.

14     By her account, she had first arrived in Singapore on 6 June 2015 for sight-seeing and intended to search for a job. At that time, she was searching for better job opportunities as she was the sole breadwinner supporting her family in Georgia. Ms Maia had been unable to secure employment during her first stint as a visitor in Singapore.

15     Ms Maia had, subsequently, and prior to the expiry of her visit pass, departed to Malaysia on 4 July 2015, and re-entered Singapore, about a week later, on 10 July 2015 to continue search for a suitable job. She was again unsuccessful in her attempts and departed Singapore for Georgia on 8 July 2015.

16     On 23 September 2015, Ms Maia re-entered Singapore from Georgia to search for a job again. On 18 October 2015, Ms Maia had extended her Visit Pass until 22 November 2015. During her stay, Ms Maia rented a room at 24 River Valley Close, Pacific Mansion (“Pacific Mansion”).

17     Ms Maia remained unsuccessful in landing a job and resorted to working in a certain night-life trade. In the course of this activity, she became acquainted with a Vietnamese female at a pub located in Hyatt Hotel. In the course of their conversation, Ms Maia was told she could apply for a Student’s Pass to remain in Singapore.

Ms Maia’s initial interactions with the accused

18     Ms Maia admitted to having been told to contact one Kok Chiang Loong (“Mr Kok”) to obtain details about applying for a Student’s Pass. In early November 2015, Ms Maia met Mr Kok, and arrangements were made by the latter to enrol Ms Maia at Dimensions International College (‘College’) located at River Valley Road, with the college applying for a Student’s Pass for her.

19     On 21 November 2015, Ms Maia departed Singapore to Georgia as her Visit Pass was about to expire the following day. In mid-December 2015, she received an email from the College stating that her Student’s Pass application was not approved. It was in these circumstances that she resorted to contacting Mr Kok in pursuit of solutions as she wished to work in Singapore.

Ms Maia’s admitted facts relevant to the charge

20     Ms Maia identified Mr Kok as the mastermind of the scheme, as it was the latter who had proposed a scheme where he would “introduce a partner to take care of her” for the specific purpose of enabling her to come to Singapore and remain to work. Mr Kok’s facilitation had included his subsequently furnishing Mr Goh’s contact for the two individuals to liaise with each other.

21     Ms Maia recalled communicating with Mr Goh via WeChat and Viber, another chat application. Mr Kok had thereafter undertaken arrangements for her to return to Singapore. On 7 January 2016, Ms Maia arrived in Singapore and resided at Pacific Mansion.

The accused’s facilitation of Ms Maia’s meeting with Mr Goh and encouragement for her to marry despite her reservations

22     Ms Maia thereafter proceeded to meet Mr Kok and Mr Goh at a Vietnamese restaurant in Marina Square. Her first impression of the latter had been adverse as Ms Maia was taken aback by Mr Goh’s unkempt appearance. Mr Kok had however become an ardent advocate for her proceeding with the planned marriage by persuading that Mr Goh could improve his appearance. He proceeded to make the necessary arrangements for her to marry the former for the sole purpose of enabling her to remain in Singapore. It was made clear to Ms Maia that the arrangement she had entered into was reciprocal as she was required to provide shelter for Mr Goh, who was temporarily residing at the Vietnamese restaurant.

23     Ms Maia signalled her acceptance of the arrangements, and the marriage was solemnized on 2 February 2016 at Mr Kok’s grandparents’ residence in Kew Terrace.

Non-consummation of marriage and admission of mutual ulterior benefits from marriage of convenience

24     After the marriage, Mr Goh stayed with Ms Maia at her rented premises in Pacific Mansion. It was undisputed that the two never consummated their marriage. About a month later, a tenant vacated a room located adjacent to the Ms Maia’s room. Ms Maia had rented the vacated room for Mr Goh to reside and paid rental of S$1,000 each month for him.

25     After the marriage, Ms Maia made successive applications for the continuance of her Visit Pass, with Mr Goh, her putative spouse, being her sponsor. The applications were invariably approved, with her Visit Pass being successively extended. On each of these occasions, Ms Maia paid over sums of S$50 to S$100, and added that she supported him with his daily expenses.

Concordance with Ms Maia’s earlier investigative statement

26     The events recounted in Ms Maia’s Statement of Facts cohered with Ms Maia’s investigative statement recorded on the day of her arrest on 21 October 2016. The statement[note: 6] cites the same background of Ms Maia having come from Georgia to Singapore seeking better job opportunities, initially entering on tourist visas, making multiple trips between 2015-2016, being unable to find legitimate work and resorting to working freelance in a nightlife trade.

Ms Maia’s account of initial discussions with accused after rejection of her student visa

27     Ms Maia went on to describe her attempts to obtain a student visa through Mr Kok, which were unsuccessful. Mr Kok then purported to find her a partner and introduced her to a Singaporean man named Goh Khoon Beng[note: 7]:

17    … Whilst in Georgia, I then contacted (Mr Kok) and informed him that my student visa application is not approved. I then told (Mr Kok) that I want to come to Singapore as I want to have a better life (sic) job in Singapore. Then, (Mr Kok) told me that to have a better life in Singapore, I need to have a better person to take care of me. I then replied to (Mr Kok)' that I need to come to Singapore to find some better person. (Mr Kok) then told me that he had a friend and he can introduced (sic) to me if I want. I then agreed thus, 'Loong' then give one contact number belongs to one of his friend known as 'Goh Khoon Beng'…

… I then informed (Mr Kok)' that 'Goh Khoon Beng' asked me to come to Singapore to meet him. Therefore, (Mr Kok) informed that he will arranged (sic) for a visa for me to travel to Singapore. I wish to say that I received Visa from (Mr Kok) through email and to my understanding the said Visa that I received is sponsor (sic) by 'Goh Khoon Beng'.

Accused’s attempts to quell Ms Maia’s misgivings about marrying Mr Goh

28     Ms Maia testified that upon her returning to Singapore on 7 January 2016, she had contacted Mr Kok and informed him of her arrival. Mr Kok was attentive, as Ms Maia had, minutes later, received a call from Mr Goh, who asked for a meet up. Ms Maia had arranged to meet and formed a poor initial impression. She indicated that the accused had made considerable effort to suppress her resistance to marrying Mr Goh, who did not even resemble the images she had received from their shared chats. The accused relentlessly underscored the advantages of entering the marriage, and his persuasion had gone to the extent of promising to improve Mr Goh’s physical appearance.

19    I wish to say when I first met 'Goh Khoon Beng' personally, he introduced himself as 'Alex'. I then finds (sic) (Mr Goh)[note: 8] to be extremely dirty and his facial appearance is different from what I received his photo on my 'Viber Chat' and 'We Chat'. I then told (Mr Kok) that I could not accept the relationship with (Mr Goh). (Mr Kok) told me that he could arranged (sic) to change (Mr Goh’s) appearance and he could arranged (sic) for me to get married with him since I want to have a better life and prolong my stay in Singapore. I then agreed and (Mr Kok) told me that he will arranged (sic) for my marriage with (Mr Goh).

[Emphasis added].

29     In her statement, Ms Maia relented and proceeded to marry Mr Goh on 2 February 2016 for the specific purpose of prolonging her stay in Singapore. She also alluded to Mr Kok continuing to take an active hand in the arrangements, adding that she paid Mr Kok a sum of $4,000 for arranging the marriage[note: 9].

22    I wish to say that I get married with (Mr Goh) on 2 February 2016 as arranged by (Mr Kok). I wish to say (Mr Kok) is the one who arranged my marriage which includes booking my marriage solemnisation. I wish to say for this occasion, I had voluntarily paid 'Loong' an amount of $4,000. The reason I had paid the said amount to (Mr Kok) is because he had arranged for me to get married with (Mr Goh) and with the said marriage, I can prolong my stay in Singapore. I had paid the said amount of $4,000 to (Mr Kok) on 15 February 2016 at one Vietnam Restaurant located at Chinatown. This is the place where I first met (Mr Goh).

[Emphasis added].

30     After entering into the marriage, Ms Maia admitted that she and Mr Goh lived in separate rooms, but she supported him financially, while he repeatedly extended her visit pass in Singapore as her sponsor.

Ms Maia’s explicit admission to having committed the offence

31     When asked, Ms Maia was quite clear in her admission of having entered a marriage of convenience to obtain an immigration advantage. Notably, she did not tender any denial or offer any defence, but had the presence of mind to express remorse, emphasise this as her first offense, and pleaded for leniency, principally that her family in Georgia, including a mother who was beset by cancer, depended on her support. In her statement:

28    The Recorder now informs me that I had committed an immigration offence (sic) where I had entered into marriage with Goh Khoon Beng (Male, 16 September 1975) a Singapore citizen and having reason to believe that the purpose of the marriage. is to obtain an immigration advantage in the form of a Visit Pass for myself where a gratification of $4,000 was given to the said Kok Chiang Loong (Male, 17 August 1978), a Singapore citizen, as a reward for entering into the said marriage.

29    I am asked by the recorder whether I have anything to say.

30    I wish to say that I am sorry for what I have done. I admit mistake and I accept my punishment. This is my first time I commit such offence. I plead for leniency and I hope that the judge can reduce my penalty to lighter sentence. I missed my family in Georgia.

[Emphasis added]

Ms Maia’s cautioned statement

32     In her cautioned statement,[note: 10] which was recorded in the morning of 22 October 2016, Ms Maia had made an unequivocal admission which was consonant with the final part of her earlier investigative statement:

I am sorry for the offence that I have done. This is my first time I commit such offence. I plead for leniency and I hope that the judge can reduce my penalty to (sic) lighter sentence. I missed my family in Georgia especially to (sic) my mom who is suffering from cancer and they are depending on me to support them.

[Emphasis added]

Ms Maia’s subsequent statement on 26 October 2016

33     Notably, while Ms Maia explicitly admitted her involvement in a sham marriage for immigration purposes, knowing this to be an offence in Singapore, and providing details on how this was arranged and carried out at the date of her arrest on 21 October 2016, she had subsequently recanted a week later in a further statement[note: 11], where she instead claimed to have contracted a love marriage with Mr Goh. She added that Mr Kok’s actions were geared toward “helping me and (Mr Goh) to buy”[note: 12] suitable clothing, a mobile phone, and also to send the latter to Vietnam for dental treatment. She added that she had resolved to change Mr Goh’s appearance after hearing that he had become dishevelled and differed from his images sent via their chat applications as a result of family and financial problems. She had resolved that, as a couple they “should be together and better together”.

34     Ms Maia’s about-turn extended to her affecting a state of ignorance as to why Mr Goh might have stated that his purpose for getting married was for “the sake of shelter and not a love marriage”[note: 13] in his own investigative statement. She even attempted to claim that the non-consummation had not been intentional but occasioned by certain inabilities on Mr Goh’s part. In Ms Maia’s words: “(w)e both tried to have sex, but he couldn’t perform”[note: 14].

35     Ms Maia also asserted that the two tried to stay in the same room but decided to stay in separate rooms within the same address “after some argument”.

Ms Maia’s plea of guilt puts her position beyond doubt

36     Ms Maia initially ran her defence from a case theory based on her second statement of there being a love marriage with her planning a new life, children and family in Singapore with Mr Goh. Her defence counsel, Mr Jayakumar Naidu, even sought to assert that her first two statements to have been involuntary and coaxed by the pressure of threats, inducements or promises by the recording officers, as well as certain claimed inadequacies on the timely provision of an interpreter who could communicate in the Turkish language or Ms Maia’s native Georgian tongue. After it was made evident that Ms Maia understood English[note: 15], and looking at other aspects of the case, I admitted the challenged statements as being voluntarily made.

37     Notwithstanding the above, Ms Maia’s plea of guilt on 8 January 2021, which was of course after the statement made on 26 October 2016, has crystallised her position. What is notable is that Ms Maia’s admissions in the Statement of Facts cohere closely with her first statements made some four years and nine months before on 21-22 October 2016.

Maia’s testimony coheres with her earlier account recorded in her first statemen

38     To assess the quality of Ms Maia’s evidence, it would be appropriate to juxtapose the Statement of Facts and court statements above with her actual court testimony. Setting out Ms Maia’s court testimony allows me to introduce salient background facts which would give a more detailed, textured and complete picture, and in turn enable a more cogent analysis of the expanded factual matrix.

39     What was especially notable from her oral testimony was that both Ms Maia and Mr Goh had, on separate occasions militated against proceeding with the marriage, but been coaxed to proceed by Mr Kok. In Ms Maia’s instance, her initial refusal had resulted in the calling off of the original wedding date of 23 January 2016 at an establishment in Raffles Boulevard, where it was re-scheduled to a more modest event in Mr Kok’s grandparents’ residence at Kew Terrace.

Visa problems and marriage proposal

40     According to Ms Maia’s testimony in court, after her entry visa to Singapore was rejected in late 2015, she had contacted Mr Kok, who had suggested marriage as a solution to her visa problems, assuring her that this would resolve her immigration issues. It was plain that Mr Kok’s suggestion was to get married as her key to remaining in Singapore. He had posited this as an easy alternative to the rigours of securing official employment here.

41     The tenor of their conversation, from the outset, did not point to Mr Kok suggesting that Ms Maia should enter into a marriage founded on a genuine relationship, but rather an arrangement which could be casually terminated by a divorce. In her own words[note: 16]:

(Mr Kok) told me, “So, why are you looking for a job? You… can instead just get married.” So, I told him, “But who would I marry with? I don’t know anyone.” He told me he has a friend that he could introduce me.

(Mr Kok) said, “I’ll give you his number. You talk to him. …, see how it goes. …if you …get along, that’s fine, if you don’t get along, …you can get divorce at worst. And this way it will be easier for you to find a job”.

[Emphasis added]

Ms Maia’s introduction to Mr Goh

42     Ms Maia stated that Mr Kok introduced her to Mr Goh[note: 17], as the solution to her issues with her visa application. In her own words: “(Mr Kok) told me “Since you are telling me that you can’t get a visa, why didn’t you just find a nice person and get married. This way your visa issue would be solved””. Ms Maia testified that she and Mr Goh had begun communicating shortly after the accused’s introduction.

Accused’s facilitation of Ms Maia’s entry into Singapore

43     Prior to Ms Maia’s entry into Singapore on 7 January 2016, Mr Kok had lain the groundwork to enable her to be equipped with a social visit visa, and also a “marriage visa”. Ms Maia had testified of Mr Kok telling her that the social visit visa and the “marriage visa”, which was later established to be a Notice of Marriage[note: 18], would be required for her to be granted an extended stay in Singapore.

44     Ms Maia indicated that Mr Kok gave her the “marriage visa” to facilitate her entry into Singapore, but her social visit visa had sufficed without the need to brandish her “marriage visa” for inspection by authorities. In her own words[note: 19]:

Prosecution:

Okay. Earlier you said there is something about a marriage visa, right?

Ms Maia:

I didn’t need to produce it. No one … asked me.

Prosecution:

So, meaning you were in possession of that particular visa?

Ms Maia:

Yes.

Prosecution:

Who gave you the visa?

Ms Maia:

Chiang Loong.

Prosecution:

So, …there wasn’t a need for you to produce a visa?

Ms Maia:

I was going to use it if there was a problem at the immigration, but there wasn’t, so I didn’t need to use it.

Prosecution:

Who told you to use it when there’s a problem? To use that marriage visa?

Ms Maia:

Chiang Loong. But those visas were issued under the name “Goh Khoon Beng”.

Prosecution:

How did you receive these visas when you’re in Georgia?

Ms Maia:

…Via WhatsApp.

Prosecution:

Who WhatsApped you?

Ms Maia:

Chiang Loong.

[Emphasis added]



Accused’s bid to pressure Ms Maia’s to proceed with the marriage despite her misgivings and objections

45     I will now turn to mention Ms Maia’s account of Mr Kok’s persistent campaign for the marriage, that he had mooted and arranged for, to proceed. Mr Kok had, from her account, applied significant effort to quell her misgivings, and later, considerable pressure to suppress her objections.

46     As set out in the foregoing, Ms Maia’s initial impression of Mr Goh had been overwhelmingly negative. At their meeting in the restaurant that Mr Kok owned. Ms Maia reported feeling “repelled” by Mr Goh. In her own words, she “found him very unpleasant looking. The way he looked, the way he smelled, it all repelled me. I didn’t feel anything toward him.”[note: 20] Ms Maia found herself only able to tolerate a stay of about 20 minutes in the restaurant, before leaving the premises.

47     According to Ms Maia, Mr Kok had not been deterred by this infelicitous first encounter and brazened ahead to impose his plans. On 19 January 2016, Mr Kok had instructed Ms Maia to attend a pre-marriage course with Mr Goh. During the class, Ms Maia was “quite shocked”[note: 21] to learn that their union would be Mr Goh's third marriage.

Accused leaving Mr Goh at Ms Maia’s address upon her initial refusal to marry him

48     Mr Kok initially set the date of marriage date as 23 January 2016, Ms Maia protested “Why didn’t you tell me that this was his third marriage?”, to which Mr Kok had rebutted that “it wasn’t that important”. Ms Maia had put her foot down to state “I can’t marry him, …he is not someone who I like.”[note: 22].

49     Consequent to Ms Maia putting her foot down, the original plan for the marriage to take place on 23 January 2016 was abortive. Mr Kok had retaliated by taking Mr Goh to Ms Maia’s residence at Pacific Mansions, and simply leaving him there and becoming incommunicado. Ms Maia took pity on Mr Goh testifying that she “couldn’t leave him there” as “he didn’t have money”[note: 23]. The situation thus compelled Ms Maia to allow Mr Goh to stay with her.

Ms Maia’s decision to marry was actuated by a desire to extend her stay in Singapore

50     Ms Maia found co-living with Mr Goh challenging as “(h)is smell was overpowering” and “filled up the place”[note: 24], which necessitated her compelling him to take a bath and also shower. She also cooked for him. Mr Goh eventually stayed for two weeks in Ms Maia’s apartment.

51     Ms Maia subsequently became concerned that her visa, which was valid for only 30 days, would soon expire, and approached Mr Kok for help, only for the latter to present an ultimatum: “There is very little time left. In this little time, you…cannot get a job, you cannot extend your visa, so the only way for you is to get married to (Mr Goh)”[note: 25]. Ms Maia contemplated her quandary, realising she had no alternative, and thus agreed to the marriage, on the understanding that this move would solve her visa problems. Ms Maia was clear that her priority was to find a job in Singapore and would not have given her assent if she could have found a job[note: 26] upon which to base her stay.

Accused’s continued role in organising the marriage

52     Ms Maia testified on Mr Kok directly organising the necessary documentation for the marriage, which took place on 2 February 2016, a date was proposed by Mr Kok. Mr Goh confided to her that he was uninvolved[note: 27] in the preparation of the documents, save for appending his signature on them on 27 January 2016. Mr Kok furnished Ms Maia with a “matrimony agreement”[note: 28] and a statutory declaration[note: 29] with the substance set out below for reference

MATRIMONY AGREEMENT

I, GOH KHOON BENG (ID as stated) am the Man, and confirm that I agree to the following: -

a)    I promise to love AKHALKATSI MAIA, honour her, comfort her and keep her in sickness and in health and be faithful to her so long as I shall live.

b)    I promise to provide a matrimony home and live together with AKHALKATSI MAIA once we become husband and wife.

c)    I promise to support AKHALKATSI MAIA living in Singapore.

(consent clause)

l, AKHALKATSI MAIA (ID as stated) am the Woman and confirm that I agree to the following: -

a)    I promise to love GOH KHOON BENG, honour him, comfort him and keep him in sickness and in. health and be faithful to him so long as I shall live.

b)    I promise to live together with GOH KHOON BENG and stay together in the matrimony home he provides.

c)    I promise to perform my connubial duties once we become husband and wife. I will cook for him and wash his clothes.

I, the Woman agree with the consent set out in this Matrimony Agreement.

(consent clause)

[Emphasis added]

And

STATUTORY DECLARATION

I, the undersigned,

GOH KHOON BENG

(ID as stated)

being duly sworn in, hereby solemnly declare that, under the law of Singapore, I am currently divorced and fully qualified to marry a Georgia citizen.

Where the facts set out in this affidavit are within my personal knowledge, that they are true. Where they are not within my personal knowledge, they are true to the best of my knowledge, information and belief.

I crave your office to refer to the information of the bride in this affidavit.

I now confirm that the name of the bride is AKHALKATSI MAIA and her Georgia passport number is (as stated)

I now confirm that the data of the bride is true and correct.

I also declare that I had make an application at the HDB office to purchase a 2-room flat and this will be the matrimony home for the bride. I had got to know the bride through a phone application known as VIBER. I will marry her willingly and it is because of true love. I had shown her my CPF contributions statement showing that I had a stable job and able to support her living in Singapore.

And I make this solemn declaration conscientiously by virtue of the provisions of the Oaths and Declaration Act (Chapter 211) and subject to the penalties provided by the said Act for the making of false statements in statutory declarations,

conscientiously believing the statements contained in this declaration to be true in every particular.

Declared at Singapore by GOH KHOON BENG

This date: 27 January 2016.

The accused mollification of Mr Goh’s misgiving over the marriage

53     Ms Maia learnt that Mr Goh was also hesitant to proceed with the marriage, when she heard the latter state that he “didn’t want to marry (her)”[note: 30]. Upon this revelation, Ms Maia had plaintively implored “(n)ow, I don’t have any place to go, what am I going to do?”[note: 31].

54     The imbroglio was rectified, after Mr Goh was mollified upon Mr Kok taking Mr Goh aside for a private discussion that took place beyond Ms Maia’s earshot. The wedding ceremony then proceeded in Mr Kok’s grandmother's house at Kew Terrace on 2 August 2016.

Transactional nature of post-marriage arrangements

55     Ms Maia’s court testimony cohered with her later admissions in her Statement of Facts that she and Mr Goh did not consummate their marriage and lived separately, despite the “connubial duties” and “live/stay together” clauses in the ‘matrimony agreement’. Ms Maia had rented an additional room for Mr Goh and paid his rent which she recalled being between $800-$1,000 and maintained records of these payments. Ms Maia made it plain that the arrangements were, at their core, transactionally quid pro quo, where Mr Goh would assist with Ms Maia’s visa extensions as her sponsor, but she would pay him sums in return. In this regard too, she continued to rely on Mr Kok, as Ms Maia and her putative spouse were unfamiliar with ICA’s renewal procedures.

How the accused benefitted from the arrangement

56     Ms Maia’s evidence was that the accused had called for her help in securing referrals from foreign students for student passes, as he was able to sponsor these in the course of his occupation at Dimension School[note: 32]. She was able to recall referring three to four persons from Georgia and Uzbekistan, specifically recalling three names “Tursanawa Gilshan”, “Jugeli Teona” and “Gelashbili Sopio” from images provided by the prosecution[note: 33]. Ms Maia added that while she could not be certain as how much Mr Kok collected in totality, one of these referrals had paid up sums approximating $6, 500 for various services provided by Mr Kok and his play of employment, Dimension School[note: 34].

Payment to accused after her arrest for assistance in securing bail

57     Following her arrest, Ms Maia’s bail was set at $ 20,000. She indicated that Mr Kok had assisted with bail arrangements by having an associate[note: 35] stand in as her bailor. She was however chagrined that monies she extended to Mr Kok for her bail were not returned to her. This amounted to $ 10,000. She was also displeased that Mr Kok had secured another $8,000 from one of her referrals, Ms “Teona” who was never reimbursed the sum the latter furnished, despite an alleged promise to do so. In her own words[note: 36]:

(Mr Kok) had called (Ms Teona) and he had gotten $8,000 from her. And I paid another $10,000 so I owed another $2,000 but I didn’t have any money left. So, basically, he used me.

[Emphasis added]

Veracity and quality of PW7, Maia Akhalkatsi’s evidence

58     Ultimately, despite some degree of mild animosity expressed against the accused in the passage above, I was satisfied that Ms Maia was an objective witness in supporting the prosecution's case of the accused’s orchestration a marriage scheme designed to circumvent immigration laws, with herself and Mr Goh as occasionally unwilling participants, but drawn to the scheme by their own immediate perceived necessities, he for shelter, and she for the means to remain in Singapore. Ms Maia was certainly incisively observant and able to clearly articulate the complex network of relationships and transactions involved in arranging and maintaining this marriage of convenience.

GOH KHOON BENG

Goh Khoon Beng’s statements and testimony

59     Turning now to the co-accused Goh Khoon Beng. As touched on in the introductory passages, while Mr Goh technically claimed trial, he had, particularly in the latter stages of the trial, maintained an ambivalent disposition to putting forward any substantive response to the charge against him. This became more marked as the trial wound to a close, when Mr Goh had largely disengaged from mounting any active defence, and seemingly did not take any significant issue with the prosecution’s case.

Mr Goh’s concession that the statements were voluntarily made under cross-examination at an ancillary hearing

60     Mr Goh initially challenged the voluntariness of three of his statements but had conceded under cross-examination at the ancillary hearing, that his statements were voluntarily given, adding almost everything he said had been faithfully recorded by the recording officer. The challenge was essentially predicated on the rather feeble premise of an aggressive-looking supervising officer, OC Ong Ann Haug, being present when his statements were recorded by another officer, IO Siti Radhiyah.

61     Ms Adrienne Milton, Mr Goh’s counsel[note: 37], before discharging herself, acknowledged Mr Goh’s concession and concluded her submissions with a single line that “ultimately, that under Cross (-examination), (Mr Goh’s) own testimony is that it was voluntarily given. So, there is no dispute on the voluntariness of it”[note: 38].

62     Mr Kok’s then counsel, Mr Charles Yeo, maintained that Mr Goh’s statements were not voluntarily made, on the dubious premise of the statement recording having proceeded despite his poor hearing. I noted that Mr Goh could follow the court proceedings while unaided[note: 39] despite the cited auditory problems. I was thus satisfied that there was no inducement threat or promise made at the recording of the statements, or any other circumstances that could vitiate the voluntariness of these statements and ruled[note: 40] accordingly.

The admitted statements give context to the antecedent relationship between the accused and Mr Goh

63     Looking first at the document trial, Mr Goh’s earliest statements did not differ from the prosecution’s characterisation of his marriage with Ms Maia as a “sham marriage” to afford him an advantage. Mr Goh’s account was of Mr Kok steadily gaining control over Mr Goh’s affairs and dealings after some assistance with the latter’s divorce from an earlier sham marriage. This control extended to the former being given access to Mr Goh’s Singpass. This access had been granted since July 2015 during the commencement of Mr Goh’s divorce proceedings with his Vietnamese ex-wife, and its use extended to Mr Kok’s arrangements of the subsequent marriage of convenience with Ms Maia.

Mr Goh’s first ‘long’ statement

64     Mr Goh had given his first ‘long’ statement [note: 41] upon his arrest on 21 October 2016, when he was then aged 38. Mr Goh informed that his putative union with Ms Maia was his third marriage, and also revealed that his prior two marriages were sham marriages, adding these were arranged by other individuals, and had not involved Mr Kok[note: 42].

65     In this statement, Mr Goh stated that he had come to know Ms Maia, whom he knew to be a Georgian national, through Mr Kok in December 2015. Mr Goh added that Mr Kok previously helped with him in his divorce from his second wife named “Thao”. This association led to his ceding his Singpass and email address, which were handed over when Mr Kok had asked for these to facilitate divorce proceedings with Mdm “Thao”[note: 43].

Accused’s alleged misuse of Mr Goh’s Singpass and email accounts

66     Mr Goh’s evidence was that Mr Kok had asked for his Singpass details on multiple occasions. This had caused him to be concerned that his Singpass and email were being misused in what he suspected to be a sideline business of “arranging marriages and facilitating divorces”. Mr Goh states[note: 44]:

I also wish to say that in between my interim and final judgment papers, (Mr Kok) did asked (sic) from me for my Singpass again and also for my email address. He claimed that he needed it for references. I did not question him much back then. However, I recalled when I checked my emails, I saw that it contained all the marriage preparation documents, court filing cases and other documents which I believed were all part of (Mr Kok’s) sideline business of arranging marriages and also facilitating divorces. I wish to say that I did questioned (sic) (Mr Kok) about all these emails and why he had to use my email instead of his to receive all these but he never really answered my questions…

[Emphasis added]

Accused’s proposal for Mr Goh to marry Ms Maia

67     In November 2015, Mr Kok recruited Mr Goh to assume the role of ‘restaurant manager' for his restaurant “Saigon Baguette” which was situated in Marina Square. This appointment proved to be short lived, as the establishment was, according to Mr Goh, effectively non-functional, lacking staff and a cook. The restaurant closed in January 2016, in the wake of complaints from other shops. Mr Goh was in dire financial straits and used the restaurant as temporary shelter. He noted that Mr Kok used the restaurant to “organise lots of meetings for his clients”[note: 45].

Mr Goh’s reported reservations about marrying Ms Maia

68     It was in this milieu of Mr Goh’s dependency on the accused that the latter had, in December 2015, proposed a marriage between the Mr Goh and Ms Maia. Mr Goh was initially reluctant, having no prior knowledge of Ms Maia's background or employment status. In his words: “I wish to say that at that time, I was never agreeable to another fake marriage and I was unhappy with (Mr Kok) for doing this without my consent. I rejected his offer[note: 46]”.

69     Mr Goh added that the accused had assured that “this was going to be a real marriage”. Mr Goh claimed that there was, at this juncture, no discussions regarding financial compensation for visa extensions connected to the marriage which Mr Kok had mooted, with the understanding that Mr Goh would be compensated by having shelter provided when he resided with Ms Maia.

Mr Goh’s claim that accused had used his Singpass to effect the marriage registration

70     It was Mr Goh’s evidence that the accused had continued to take liberties with the former’s Singpass account. Without Mr Goh’s consent, the accused utilised Mr Goh’s Singpass to commence marriage arrangements, and his first notice of the initiated proceedings had been that he had been scheduled a pre-marriage assessment when he was going through his email. Mr Goh had deposed of Mr Kok taking such an involved role in the proposed marriage that he (Mr Kok) was the party setting the date of Mr Goh’s marriage with Ms Maia[note: 47] and nudging the former each step of the way. In this connection, Mr Kok had told him of the date of the marriage being scheduled to 2 February 2016, and even accompanied him to the Registry of Marriages to attend the one-hour marriage preparation course.

Mr Goh’s confirmation of non-consummation

71     In all of his accounts, Mr Goh was emphatic there had been no consummation of the marriage, and while they had initially shared a bed, Ms Maia had taken steps to secure an additional room to house Mr Goh once one became available. In his own words[note: 48]:

As I treated (Ms) Maia as my own sister, I told her I would prefer to have a room of my own. I wish to say that I had never treated this marriage as real and the only reason I had agreed to this was mainly for the shelter.

[Emphasis added]

Mr Goh’s evidence that accused had followed through after marriage to ensure his compliance with Ms Maia’s renewals

72     To accentuate the transactional nature of their relationship, Mr Goh pointed to Mr Kok continuing to maintain a close interest to ensure that the former held up his end to assist in the renewal of Ms Maia’s pass, to the extent of prompting and arranging to meet the former at the ICA building. He has also taken additional steps of memorising Ms Maia’s due dates for extension, and counselled Mr Goh to memorise her particulars to better present as an authentic couple. In Mr Goh’s own words[note: 49]:

I wish to say as (Ms)Maia's pass was about to expire late February 2016, (Mr Kok) had called me to remind me and we were supposed to meet at ICA Building for the extension. I wish to state (Mr Kok) was with us for (Ms) Maia's first extension.

And

… I am paid $50 for the first few extensions and subsequently $100 per extension. I wish to say that for the first four extensions, (Mr Kok) was present with us at ICA Building and he also took note of Maia's extension dates. It was also during the first four occasions; (Mr Kok) had asked me to memorize Maia's date of birth and her passport number just in case I am ever being interviewed by ICA officers for (Ms) Maia's Long Term Pass application. … I wish to add that for the first extension form, it was prefilled by (Mr Kok) but signed by both (Ms) Maia and I (sic).

[Emphasis added]

Mr Goh’s admission that the marriage had an ‘expiration’ date

73     Aside from the above admission where Mr Goh had admitted to having assisted Ms Maia with her visit pass extensions and being compensated by her with $50-$100 for each visit pass extension, the strongest indicum of this being nothing more than a marriage of convenience must come from his revelation that the arrangement came with an “annulment” mechanism, which could be triggered when Ms Maia decided to return to her native Georgia. In his own words[note: 50]:

Ql0    Did you ever plan to apply for annulment with (Ms) Maia?

A10 Yes, both (Ms) Maia and I discussed about it sometime in August 2016. (Ms) Maia told me that she planned to go back in December 2016, so she suggested to proceed only in November 2016.

[Emphasis added].

Mr Goh’s cautioned statement

74     Mr Goh’s handwritten cautioned statement revealed essentially the same as that disclosed in his ‘long’ statement[note: 51] where he had unreservedly conceded to having entered a marriage of convenience with Ms Maia for the sole purpose of ensuring that he had a roof over his head.

I admit to my offence. I had agreed to the marriage solely to have a roof over my head.

I regret my actions and hope I can be given some leniency.

[Emphasis added]

Mr Goh’s further statement on 1 November 2016

75     Mr Goh had given a further statement on 1 November 2016. Much of the statement involved explanations of his past dealings with Mr Kok in respect of the divorce proceedings against Ms Thao. In respect of cogent disclosures germane to the present proceedings, In that statement[note: 52], Mr Goh had for the third time, conceded that his reason for entering into the marriage was for shelter:

Q3:    Is you (sic) marriage to Maia a genuine marriage?

A3:     No.

Q4:    What was your purpose of entering the marriage with Maia?

A4:    It was for the shelter.

[Emphasis added]

76     In his further statement, Mr Goh indicated that he had been baffled when the accused brandished the ‘marriage agreement’ and statutory declaration for him to sign before a commissioner of oaths, as he had not encountered these documents in his prior two marriages. He was later told that “without the matrimony agreement and statutory declaration, (Mr Kok) can be easily charged therefore he will be using these documents to cover himself”[note: 53].

Mr Goh’s allegation of assault by Mr Kok

77     Mr Goh also deposed to an incident of assault in the hands of Mr Kok after he was bailed out, where Mr Kok had apparently become unhappy with his disclosures to investigators through the recorded statement. In his own words[note: 54]:

I just wish to say that I was in deep trouble and being slapped back in the face the moment he (Mr Kok) told me in the car after bailing me out about the 2 documents that I had signed known as the Statutory Declaration and the Matrimony Agreement. He told me that he will be using these documents against me in Court for the cross examination (sic) trial and he had also added that I can be sentenced to 9 months for admitting to a fake marriage.

[Emphasis added].

Mr Goh’s trial testimony

78     At trial Mr Goh’s testimony did not differ from his statements, with his reiteration of his first meeting with Ms Maia at Mr Kok’s restaurant, Mr Kok had essentially dictated the terms of the marriage, declaring that Mr Goh was to marry Ms Maia, and concomitantly be provided with shelter for so doing.

79     Mr Goh testified on his misgivings upon Mr Kok’s declaration that Ms Maia was to marry him. He attested to being unhappy, not least because he was romantically attached by then to a Vietnamese national. Notwithstanding this, Mr Goh had attended a pre-marital class with Ms Maia, where he recalled Mr Kok to curiously also in attendance[note: 55].

80     Mr Goh claimed to have tried to put his foot down in telling Kok that he did not wish to go through with a sham marriage and that Mr Kok was aware of Mr Goh having a Vietnamese girlfriend. Mr Kok had overcome his resistance by stating that his Vietnamese girlfriend was in no position to support him, as she was overseas and “nobody will give (Mr Goh) a roof over (his) head”[note: 56].

81     Mr Goh’s testimony at trial confirmed his stance that after the marriage, he did not consummate the marriage with Ms Maia, and was categorical in stating that he did not consider the marriage to be genuine, stating “…to me, it’s a sham marriage, lah”[note: 57]. He added that no members of his family had been in attendance as they did not regard the ceremony to be genuine wedding. Mr Goh added that he had played his part of the agreement where he was co-operated in processes to extend Ms Maia’s stay and reciprocated with free lodging where Ms Maia would directly settle his rental dues.

82     In his court testimony, Mr Goh added that he had not applied for Ms Maia’s visa prior to her arrival in Singapore, even as the documentation listed his applicant details and Ms Maia’s relationship stated as his spouse-to-be. He reiterated his belief that Mr Kok was involved, as Mr Goh had readily provided his Singpass details to the former even to the extent of giving his one-time password (or OTP) to Mr Kok[note: 58].

83     Ultimately, Mr Goh’s testimony was crystal clear that his marriage with Ms Maia was not a genuine union and both had entered this sham marriage for the former to obtain an immigration advantage and the latter to receive free shelter.

SUPPORTING TESTIMONIAL EVIDENCE FROM OTHER PROSECUTION WITNESSES

84     I now turn to the evidence of a number of supporting witnesses for the prosecution’s case, to give a precis on aspects of their evidence that proved helpful in gaining a better understanding of the contextual underpinnings of the prosecution’s case.

Evidence of PW12 DSP Chan Peng Nam

85     ICA DSP Chan Peng Nam (“DSP Chan”) gave evidence that he, in the course of assessing pre-marriage Long Term Visit Pass (LTVP) assessment applications, discovered Mr Goh had apparently submitted an application for Ms Maia, a Georgian national, in December 2015, even as he had tendered an application for another foreign female individual in November 2015[note: 59]. As DSP Chan probed further, he discovered Mr Goh had also submitted an appeal for entry for yet another person, this time a Vietnamese female, with all three applications being submitted in a span of one to two months.

Mr Goh’s attendance at ICA to respond to his multiple LTVP applications

86     The three applications, made in such an improbably rapid succession aroused DSP Chan’s suspicion, and he thus called Mr Goh to attend an interview at ICA on 4 January 2016. DSP Chan, referring to his records, testified of Mr Goh asserting during the interview that he had not submitted the two pre-marriage LTVP assessment application as “he did not know the two ladies”[note: 60]. DSP Chan indicated that Mr Goh implicated the accused by stating “he was asked by his colleague by the name of Mr Kok to submit, …using his, Mr Goh’s, Singpass”[note: 61].

87     DSP Chan inquired further, and noted Mr Goh’s explanation that because Mr Kok was his “colleague”, he was concerned that raising an objection would “spoil the relationship”[note: 62]. DSP Chan ascertained that Mr Goh was “only interested in the appeal for entry for the Vietnamese lady …whom he intended to marry”[note: 63].

DSP Chan’s account of Mr Goh’s change in position on his LTVP application for Ms Maia

88     DSP Chan stated that during the interview, Mr Goh had, in his presence, penned a statement[note: 64] for submission to ICA, which stated:

ALL APPLICATION (sic) (L.T.P) ARE MAINLY FRIENDS. MARRIAGE WITH GEOREIA (sic) FRIEND IS ARRANGE (sic) BY MY COLLEAGUE MR KOK.

MY MAIN CONCERN IS THE APPEAL FOR MS PHAM THI NHIEN TO (sic) RE-ENTRY TO SINGAPORE AS MY FUTURE WIFE.

ONLINE APPLICATION FOR GEORGIA LADY & THE APPEAL LETTER FOR VIETNAMESE WAS PENDING FOR 1 MONTH PLUS WITHOUT RESPOND (sic) TAT (sic) LED TO THE MARRIAGE ARRANGEMENT & VISA APPLICATION WITH THE GEORGIA LADY.

MS KIEU TUYET NGA APPLICATION WAS DONE IN MY PRESENCE BUT IN PERSON I’VE NEVER MET HER BEFORE.

Signed

GOH KHOON BENG

04/01/2016

[Emphasis added]

89     DSP Chan stated that Mr Goh left ICA after penning the note exhibited above. The witness added that Mr Goh returned several hours later with a detailed 10 page submission[note: 65] and “informed ICA that Mr Kok had asked him to furnish this document to (ICA officials)”[note: 66]. Unlike the earlier specimen of Mr Goh’s work product, which was rife with grammatical and typographic errors, this document was professionally typed and grammatically correct.

90     The submission set out Mr Goh’s history of marriages to two Vietnamese women, namely Ms Nguyen Hong Sinh and Ms Dang Ngoc Thao, and his divorce from the latter on 15 September 2015. The submission also explained that Mr Goh thereafter “considered to get into a relationship” with Ms Kieu Tuyet Nga but had been thwarted as she was not allowed to stay permanently in Singapore.

91     The remainder of this latter submission was an impassioned plea for Ms Maia, who was described as ‘a remarkable lady” and with whom Mr Goh was in love with, to be allowed to entry as he had ‘decided to enter into a relationship and a possible marriage with (Ms) Maia”. The submission extolled the fact of both sharing the same Christian faith, and that she was highly educated and could speak English. Mr Goh added that he had filed a “notice of marriage booking and the solemnisation date is on 23 January 2016”. Rather paradoxically, despite Mr Goh’s earnest pleas for Ms Pham Thi Nhien, she did not even merit a mention in Exhibit P-41.

Analysis of DSP Chan’s evidence

92     What was especially notable was the apparent change in Mr Goh’s position in the two documents submitted in the same morning on 4 January 2016, where he had described in his handwritten application that the application for Ms Maia to principally an arrangement by Mr Kok, and his main concern being his appeal for Ms Pham Thi Nhien’s re-entry to Singapore as his “future wife”, to diametrically change in his type-written submission, where Mr Goh instead identified Ms Maia as the person he earnestly wished to marry.

93     In my judgment, DSP Chan’s testimony demonstrated in stark detail, the amount of influence the accused held over Mr Goh. Circumstantially, Mr Goh could not have penned the fluently expressed submissions in Exhibit P-41, as he clearly lacked the wherewithal to even write grammatically or spell correctly. Again, it appeared suspicious that Ms Pham Thi Nhien was not even referenced in the latter document that Mr Goh had been asked by his “colleague”, Mr Kok, to submit.

Evidence of PW11 ASP Simon Chong

94     ASP Chong Ching Guan, Simon (“ASP Chong”) the lead investigator for the three original co-accused persons, confirmed that his investigative findings indicating the dominant role of the accused largely conformed with the accounts given by Ms Maia and Mr Goh where the former had been introduced to Mr Kok after she had sought his assistance to obtain a student pass, with the accused in turn involving Mr Goh when her application proved unsuccessful.

95     ASP Chong added that Mr Kok had been the prime mover in persuading Ms Maia through her hesitancy and planning for their marriage, using Mr Goh’s indigent status and need for shelter as a bargaining chip. ASP Chong stated that his investigations disclosed that Mr Goh was informed by Mr Kok that the latter had arranged for him to marry Ms Maia without his consent[note: 67] and had initially been inclined to reject the idea but had ultimately been persuaded to go along with the scheme.

Submission of no case and call for defence

96     Upon the prosecution closing their case, defence counsel Charles Yeo made a submission of no-case in that the prosecution had failed to establish their case of there being a marriage of convenience. Aside from raising questions of Mr Kok’s level of involvement in the marriage arrangements, counsel also cited the co-accused persons’ cohabitation, Ms Maia’s knowledge of Mr Goh’s aversion of water and her acts of showering him “very slowly and with care”[note: 68] as evidence that there was a “sexual or quasi-sexual dimension” to their relationship. Mr Yeo, however, had no response to the court’s questions on Ms Maia’s own testimony that there was no consummation of the marriage, and her reason for letting him live with her was on account of pity for Mr Goh’s lack of shelter. Notably, this is substantiated by ASP Chong’s investigations showing that the restaurant which was Mr Goh’s erstwhile shelter had wound its operations due to a lack of staff and ceased business in January 2016. Given the evidence amassed against the two remaining co-accused persons, I was of the view that the prosecution had made at least prima facie case and called for Mr Kok and Mr Goh to present their defence.

THE DEFENCE CASE

97     The defence case is encapsulated in their Case for the Defence and can be summarised in the following manner. Essentially, Mr Kok denied committing the offence on account of there being no actus reus being committed, and the accused not possessing the mens rea to commit the offence[note: 69]. Mr Kok reiterated that he “firmly aware that the marriage was a genuine marriage of trust and affection and romantic love”. Mr Kok also denied instigating or arranging the marriage in any way and denied being the prime mover of the marriage arrangements.

98     Defence counsel added that in the alternative, Mr Kok sought to avail himself to the statutory defence under section 57(4) of the Immigration Act to show that although one purpose of the marriage was to gain an immigration advantage, Mr Kok had reasonable grounds to believe, at the time it was contracted, that the marriage would result in a genuine marital relationship. Counsel states[note: 70]:

In this regard, the Accused Person had done his due diligence and was at all times aware that it would be an offence if he were to assist a fake marriage to be registered or instigate a fake marriage. Therefore, the Accused Person did very much to satisfy himself daily that both Mr Goh Khoon Beng and Ms Maia were indeed in love.

[Emphasis in the original]

99     Counsel sought to show that the factual matrix did not disclose a marriage of convenience, as Mr Kok’s only role had been to introduce Mr Goh and Ms Maia. Both had spontaneously fallen in love, and voluntarily chosen to register and solemnise their marriage and “thereafter lived together as a genuine and typical husband and wife”[note: 71]. He added that Mr Kok had “only done this in the social or friendship context and had not done this for profit whatsoever”. He contended that Mr Kok had only been “requested by both to assist because the Accused Person was regarded as a successful businessman and a person with (sic) high status in Singapore by both Mr Goh Khoon Beng and (Ms) Maia”

ACCOUNT OF THE ACCUSED KOK CHIANG LOONG

100    Mr Kok, in his court testimony, did not deny knowing Mr Goh, whom he knew to be a trishaw operator, and Maia, who was applying for a student pass. He described himself as being much closer[note: 72] to Mr Goh, giving him an “eight” and Ms Maia a ‘one’ on a scale of one to ten for closeness. Mr Kok’s familiarity with Mr Goh led to his exchanging messages about the opposite sex and sexual topics with Mr Goh, but he had never done the same with Ms Maia.

101    The accused contended that he had no control over Ms Maia, describing their relationship to be akin to that of a “guide” and a “tourist”, where he would show her around Singapore. Mr Kok did, however, admit to having a penchant for trying to "control" people like Mr Goh “in a certain way”[note: 73]. His intent was for them to act in what he saw as their best interests.

Accused’s desire to reform Mr Goh by matchmaking him to Ms Maia

102    The accused cited an example of his taking in Mr Goh to work at his restaurant after he left his job as a trishaw rider. Mr Kok ruefully claimed that this trait of desiring to shape the lives of others had resulted in his facing these proceedings. This was as his well-intentioned introduction of Ms Maia to Mr Goh, had resulted in the charge he faced, of abetting by instigation a marriage of convenience between the two.

103    According to the accused, he had undertaken a bid at matchmaking which brought forth a true romantic relationship between Mr Goh and Ms Maia. Mr. Kok had later found out that Mr Goh had an extant relationship with a Vietnamese national. This had greatly disappointed him, as he felt Mr Goh was behaving in an immoral manner and had betrayed his trust. Mr Kok characterised his matchmaking actions to be merely being a ‘busybody”. In his own words “…when I found out that (Mr Goh) has a Vietnamese girlfriend, then my busybody and this kaypoh[note: 74]has bad merits”[note: 75].

104    Mr Kok had reportedly taken what he considered to be Mr Goh’s dishonourable conduct very seriously to the point of claiming to have taken steps to stop the marriage from proceeding on the original scheduled date of 23 January 2016[note: 76].

Accused’s contention that the marriage was genuine

105    After Mr Goh assured Mr. Kok he would break up with his Vietnamese girlfriend and become a "better man", Mr. Kok saw this as a second chance for Mr Goh’s and Maia's relationship. Ultimately, Mr Kok’s position was principally to contend that there was a genuine marriage, as he understood from Mr Goh that he and Ms Maia were living together and sleeping in the same bed, and thus assumed a high level of intimacy existed between the two.

106    Mr Kok’s stance, after hearing Mr Goh’s court testimony that he (Mr Goh) had never engaged in sexual intercourse with Ms Maia and treated her like a sister, was that this contradicted what Mr Goh had understood from his conversations with Mr Goh at the material time.

107    To bolster his impression that Mr Goh had entered into a happy marriage, Mr Kok observed positive changes in Mr Goh’s appearance and hygiene standards after he started living with Ms Maia and attributed these changes to Ms Maia's care and effort to sustain a happy household.

108    Mr Kok claimed that he never looked down on Mr Goh and considered him a hardworking, down-to-earth person. His motivations for arranging the marriage were expressed to be twofold, the first was his wanting to “reform”[note: 77] Mr Goh and improve his socioeconomic status.

Mr Kok’s alleged fantasy to act “like a lawyer”

109    The second motivation was purportedly to fulfil his own fantasy of “being like a lawyer” or a government official in facilitating marriages. In this regard, defence counsel has alluded to Mr Kok being motivated by “an eccentric person’s fantasy to create documents”[note: 78] such as the marriage certificate and the statutory declaration for the marriage.

110    The latter motivation was best expressed by the accused’s erstwhile counsel Charles Yeo when he put the defence case to Ms Maia during her cross-examination, where in a rather prolix and convoluted ‘put’ question, he framed this proposition [note: 79]:

(it was put), that (Mr Kok) merely listened to your[note: 80] request and alleged request to help with the admin and he also got enthusiastic about it because of his eccentric personality which is that he likes to be involved with paperwork and fan---have a fantasy since young that he could be one day a lawyer or be a person in government service. And because of this he got himself into so much trouble by volunteering himself…

[Emphasis added]

111    Mr Kok’s contention in this regard was that he was not pursuing any pecuniary benefit, but merely sought to assist Ms Maia and Mr Goh in facilitating the generation of essential paperwork to formalise their marriage.

Mr Kok’s admission that he had drafted a Statement of Particulars for divorce proceedings between Mr Goh and Ms Maia

112    In his cross-examination, Mr Kok was shown a document[note: 81] seized from Ms Maia that appeared to be a draft Statement of Particulars for divorce proceedings between Mr Goh and Ms Maia. The substantive part of this document states as follows:

IN THE FAMILY JUSTICE COURTS OF THE REPUBLIC OF SINGAPORE

Divorce Suit No D (blank)

of (blank)

Between

Name: GOH KHOON BENG (stated ID)

- Plaintiff

And

Name: AKHALKATSI MAIA (stated ID)

Maia

DRAFT STATEMENT OF PARTICULARS

1.    The particulars of paragraph (6) of the Statement of Claim are set out below:

(a)    Parties registered their marriage at the Registry of Marriages, Singapore on (blank). The defendant is a divorcee and this is the plaintiff’s first marriage.

(b)    Right after the registration of the marriage on (blank), the Plaintiff wanted to consummate the marriage on that night. The Defendant informed the Plaintiff that he did not want to consummate the marriage as he is not feeling well.

(c)    In the course of the next 3 months after the registration of the marriage, for several times, the Plaintiff tied to consummate the marriage with the Defendant. Every time the Plaintiff and the Defendant were in bed together, the Plaintiff’s sexual advances towards the defendant were cruelly rebuffed by the Defendant as the Defendant claimed that She did not want to have a child. The Plaintiff and the Defendant would bitterly argue over the Defendant’s wilful refusal to consummate the marriage.

(d)    Initially, the Plaintiff and the Defendant were living together at the Plaintiff’s house, However, in about 3 months after the registration of the marriage, the Defendant moved out of the matrimonial room as she got no intention to consummate the marriage at all. The Plaintiff and the Defendant have since been living in separate bedrooms and have not consummated the marriage to date.

(e)    Whenever the Plaintiff tries to discuss marital issues with the Defendant, they would end up quarrelling.

(f)    The Plaintiff has decided to apply for nullity since the parties have not consummated the marriage even though the Plaintiff was willing to carry out his duties as a husband. The Defendant has consented to the Plaintiff’s application.

2.    The following documents are annexed herein:

(a) Marriage certificate No: (blank)

(b) Bankruptcy search for the Plaintiff and Defendants for the year 2016: (blank)

3.    The Plaintiff has not sought professional help with respect to reconciliation with the Defendant.

Signature (blank)

Name: GOH KHOON BENG

Date: (blank)

113    Mr Kok did not dispute[note: 82] having prepared this document for Mr Goh, though he claimed it was based on a “standard format”. There were several glaring inaccuracies, as the document stated that Ms Maia was a divorcee, and that the marriage was Mr Goh’s first, which is also not true. The document had misgendered Ms Maia as "he" instead of "she" in one instance[note: 83]. When asked about his motivations, Mr Kok responded “I have a fantasy of doing this kind of things but I’m not really good at it”[note: 84].

114    While Mr Kok claimed familiarity with preparing court documents for divorce proceedings, he conceded to have never undergone any formal legal training. When questioned about the identified inaccuracies, the accused admitted the errors in the information, but claimed the document to be a mere draft based on a standard format he obtained from "somewhere."

115    Mr Kok also initially denied preparing the document specifically for Mr Goh, but later paradoxically admitted giving Mr Goh a hard copy, explaining that Mr Goh sought to dissolve his marriage to Ms Maia, but could not afford a lawyer. The accused’s final position was to insist that the seized document was just a raw draft for Mr Goh to use as a resource. Mr Kok’s evasive answers left the court with a strong sense that he was more deeply involved in facilitating the marriage of convenience and its aftermath than he was willing to directly admit in his sworn testimony.

OTHER DEFENCE WITNESSES

116    Mr Goh had followed Mr Kok as the second defence witness. Mr Goh’s cross-examination by defence counsel Charles Yeo was interrupted by the latter, who was himself facing criminal proceedings, remaining outside the jurisdiction while on LEJUR bail and not returning when the trial resumed on 1 August 2022. Mr Goh’s cross-examination continued with Mr Kok’s appointment of Mr Rajwin Singh. The essence of Mr Goh’s testimony has already been covered in the earlier part of these grounds and need not be recounted here.

117    The defence had called a further three witnesses being Ms Be Thi Mai Chang, who was a witness to the marriage solemnisation, as well as Mr Yeo Yi Quan Harry and Mr Lim Wee Ming in their bid to show that there had been a genuine marriage of love and affection between Mr Goh and Ms Maia. With respect, the witnesses were merely able to give impressionistic glimpses of instances where the two appeared to be happy together.

118    In my judgment, it would be grossly unusual for two persons, knowing themselves to be in marriage of convenience, to fail to maintain appearances, as to give at least an outward representation of civility and cordiality, if not simulated “closeness” as a putative couple. The evidence of the latter three witnesses thus did not metaphorically “move the needle’ in advancing the defence case.

Defence submissions

119    In gist, defence counsel Rajwin Singh indicated that he had three areas that he wished to engage. The first was in relation to Ms Maia, where counsel asserted the existence of evidence of a genuine relationship, including public displays of affection and intimacy. He also alluded to Ms Maia’s own testimony of having tried to make the marriage work, which he regarded as not typical of a sham marriage.

120    The second area would be on Mr Goh’s testimony, where counsel lamented Mr Goh’s tendency to flip-flop between wanting to plead guilty and claim trial, which he submitted, ought to make his testimony unreliable. Mr Rajwin contended that Mr Goh’s evidence seems tailored to suit himself at different times. He also posited that Mr Goh had exhibited some signs he was behaving like a real husband, where testified of enjoying Ms Maia's cooking.

121    As his third point, on the alleged instigation by Mr. Kok founding the charge, defence counsel argued that Mr Kok’s interventions should be viewed via the lenses of charity rather than as instigation, considering Mr Kok's prior help to Mr Goh in taking him into the restaurant in wake of the latter’s destitution, which had left him in extremis, without shelter.

ANALYSIS

The elements of the charge and Mr Kok’s role as alleged abettor

122    In my analysis, I turn first to the elements of the charge under section 57C (1) of the Immigration Act. In relation to Mr Goh, the onus is on the prosecution to prove three elements. They are that:

(a)     Mr Goh had actually entered into a marriage with Ms Maia.

(b)     Mr Goh had reason to believe that the purpose of the marriage was to assist Ms Maia to obtain an immigration advantage in the form of a visit pass.

(c)     Mr Goh did receive gratification, which in this case, involved free lodging provided by Ms Maia as his recompense for entering into the marriage.

The second element of the charge

123    It is, of course, beyond dispute that Mr Goh and Ms Maia did in fact marry on 2 February 2016. On the second element, on establishing that Mr Goh entered the marriage knowing that his counterparty would receive immigration advantages, the facts adduced by the prosecution from the following would ineluctably prove this element:

(a)     Ms Maia’s guilty plea on 8 January 2021 for entering into a marriage of convenience with Goh and thereafter serving a six-month sentence.

(b)     The prosecution’s presentation of Ms Maia’s Statement of Facts and other documents within the bundle of “PG papers” for her case documenting the admitted facts[note: 85] and

(c)     Ms Maia’s subsequent attendance in this trial on 29 March 2021, as prosecution witness PW7, to give oral testimony and be subject to cross-examination, before her repatriation to her native Georgia.

(d)     Mr Goh’s unwavering admission in his contemporaneous investigative statements[note: 86] that the marriage was not genuine.

(e)     Mr Goh honouring the understanding by specifically performing the act of sponsoring all of Ms Maia's visit pass extensions after their marriage. It should also be noted that Mr Kok had reportedly accompanied Mr Goh to ICA in the first few renewals in an apparent bid to ensure his compliance.

124    Turning now to the third element of gratification. The foregoing would, in my view suffice to establish these elements

(a)     Mr Goh’s admission in his statements that the sole purpose of marrying Ms Maia was for her to provide him shelter, as he had no place to stay at that time.

(b)     Ms Maia’s payment of rental sums of $800 to $1,000 for room occupied by Mr Goh.

Requirements to prove an abetment charge in connection with a section 57C (1) Immigration Act offence

125    In relation to the charge Mr Kok faced, the element of the charge would require the prosecution to establish that Mr Kok abetted Mr Goh by instigating him to enter into the marriage of convenience with Ms Maia. The other elements would be similar to those set out above concerning the co-accused Mr Goh, specifically with the second element that, in consequence of Mr Kok’s his abetment, Mr Goh had married Ms Maia to assist her to obtain immigration advantage in the form of a visit pass. The last element would be that of a gratification of free lodging given to Mr Goh as a reward for his entering into a marriage.

126    In relation of this abetment charge, there is an authority on point. In the case of Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393; [1991] SGHC 120, Lai Kew Chai J held that the onus was on the prosecution to show active suggestion, support, stimulation or encouragement to establish the offence. His honour had held:

51    In my view, mere acquiescence or silence is not sufficient to constitute the offence of abetment by instigation. That the Prosecution must show that there has been active suggestion, support, stimulation or encouragement to make good the offence of abetment by instigation was affirmed by Raja Azlan Shah CJ (as he then was) in Haji Abdul Ghani bin Ishak v PP [1981] 2 MLJ 230 at 248 in the following terms:

In fact it is an essential ingredient in a Prosecution for abetment that there must be some evidence to show that the abettor actively suggested or stimulated the principal offender to the act by any means or language, direct or indirect, in the form of ‘expressed solicitation’ or of ‘hints, insinuations or encouragement’. … The word ‘instigates’ in s 107 of the Penal Code does not merely mean placing of temptation to do a forbidden thing but actively stimulating a person to do it …

[Emphasis added]

There was evidence of active instigation by Mr Kok

127    In the inquiry of whether Mr Kok could be liable for abatement by instigation, it would be appropriate to again examine the factual matrix. According to both Ms Maia and Mr Goh, Mr Kok was the progenitor of the notion of using a marriage of convenience between Mr Goh and Ms Maia, for the purpose of obtaining immigration advantages for Ms Maia and providing accommodation for Mr Goh. His instigation had even involved a high degree of pressure to overcome Mr Goh's initial reluctance.

128    The evidence included Mr Goh’s admission in his statement that Mr Kok had introduced Ms Maia to him and persuaded him to marry her, promising that she would provide shelter and take care of Goh's well-being in return. This was at a point that Mr Goh was largely beholden to Mr Kok on account of his staying within the premises of a Vietnamese-cuisine themed restaurant owned by Mr Kok at the time.

The manner of the accused’s instigation was especially brazen

129    There was, in my opinion, a certain brazen quality in the manner of Mr Kok’s instigation. This is exemplified by Mr Goh’s testimony, during the ancillary hearing, that Mr Kok introduced Maia to him and arranged the marriage without his consent. This was also reflected in Mr Goh’s statement that “I wish to say that at that time, I was never agreeable to another fake marriage, and I was unhappy with (Mr Kok) for doing this without my consent. I rejected his offer[note: 87]”. Mr Goh had been placed in a spot as he was seeing another person, a Vietnamese lady named Ms Pham Thi Nhien. Mr Kok overcame Mr Goh’s resistance by touting the advantages of marrying Ms Maia, where Ms Pham could not provide for him whilst overseas. Mr Kok was thus actively suggesting the idea of getting free accommodation in return for marrying Maia.

130    As a direct consequence of Mr Kok's persistent abetment, Mr Goh had yielded to married Ms Maia on 2 February 2016, and performed his part in sponsoring her visit pass applications on a number of occasions, in return for her renting a room for him, and paying a monthly rental of about $800 to $1,000.

Defence submission on apparent intimacy between Mr Goh and Ms Maia

131    It would be apropos for me to specifically address defence counsel Rajwin Singh’s argument that Ms Maia had a genuine marital relationship based on her testimony to having helped Mr Goh overcome his fear of water by bathing him and shaving his armpits and private parts[note: 88].

132    In relation to learned counsel’s argument that this signified the existence of a genuine union, I would express my view that these gestures seemed to be isolated acts of kindness that did little to dispel the impression of the transactional nature of their association. I also note Ms Maia’s prior occupation to be as a trained beautician in Georgia, and hence the assistance rendered at such instances would not be at all unusual or unexpected from a person with her prior training and experience. In a similar vein with Ms Maia’s unsuccessful attempts to initiate a sexual connection, I believe that it would be rather natural for two people living together for some eight months (from February 2016 until Ms Maia’s arrest on 21 October 2016) to seek to effect an evolution of their relationship, to improve on the nature and tenor of their cohabitation. None of this can change the fact of their union bearing clear signs of being ab initio, a marriage of convenience.

Ms Maia’s initial resistance does not suggest that the accused was advocating a love marriage

133    The indicia of the union being otherwise than a love marriage would include Ms Maia’s unfavourable response at her first face-to-face meeting of Mr Goh with Mr Kok at his restaurant, where she confessed to have been "repelled" by Goh. Further, she baulked when Mr Kok told her of his arrangements to hold the marriage on January 23, 2016, Ms Maia had then expressed her reservations stating she could not marry Goh as she did not like him.

The marriage only proceeded upon further pressure from the accused

134    To re-capitulate, Ms Maia’s trenchant resistance caused the marriage to be deferred to 2 February 2016. Mr Kok’s persistence in seeing through the planned marriage extended to his bringing Mr Goh to Ms Maia's residence and leaving him there. Ms Maia was finally persuaded when she sought Mr Kok's help to extend her visa and was told in no uncertain terms that the only way out was for her to marry Mr Goh. To recapitulate from Ms Maia’s investigative statement, Ms Maia had found Mr Goh to be “extremely dirty” and his facial appearance differed from images she received. She then recounted Mr Kok’s persuasion [note: 89]

I then told (Mr Kok) that I could not accept the relationship with (Mr Goh). (Mr Kok) told me that he could arranged (sic) to change (Mr Goh’s) appearance and he could arranged (sic) for me to get married with him since I want to have a better life and prolong my stay in Singapore. I then agreed and (Mr Kok) told me that he will arranged (sic) for my marriage with (Mr Goh).

There would be no basis to invoke the statutory exception under section 57 (4) of the Immigration Act

135    Given the above, it would be extremely challenging for Mr Kok to be able to invoke the statutory defence under section 57 C (4) of the Immigration Act where a defendant can establish reasonable grounds to believe, at the time the marriage was contracted, that the marriage would result in a genuine marital relationship. This is even more so when one considers that Mr Kok acknowledged to supplying Mr Goh with a draft Statement of Particulars for divorce proceedings under circumstances that he could not explain save a rather flippant “I have a fantasy of doing this kind of things but I’m not really good at it”[note: 90].

136    The defence introduced witnesses claiming to have heard Mr Goh exult over his married life and of seeing apparent expressions of affection such as the putative “couple” holding hands and being affectionate. I would only say that these were, if at all accurate, merely subjective impressions on the part of these witnesses, which were flatly contradicted by the testimonies of the actual protagonists, Mr Goh and Ms Maia.

Verdict

137    All considered, I was of the view that the evidence of the union being a marriage of convenience transacted to yield the specified benefits to each party, being Ms Maia’s continued stay in Singapore and Mr Goh’s shelter and remuneration in the form of a stipend upon his renewing Ms Miah’s visit pass, was simply overwhelming.

138    Accordingly, I found that the prosecution has proven its case beyond reasonable doubt, and I did convict both the accused person Kok Chiang Loong and his co-accused, Goh Khoon Beng of their respective charges under the section 57C (1) of the Immigration Act.

SENTENCING

Revisiting the factual matrix for sentencing

139    The starting point would be to note that section 57C (1) of the Immigration Act Cap 133 (Rev Ed 2008), which criminalizes marriages of convenience carries a maximum penalty of up to 10 years' imprisonment and/or a fine of up to $10,000. From the foregoing, the court has established that the marriage between Mr Goh and Ms Maia was indeed a marriage of convenience, where Ms Maia received an immigration advantage, and Mr Goh, who was indigent and living an itinerant lifestyle with no fixed abode, gained free lodging by staying with Ms Maia.

Mr Kok was the essential nexus between Mr Goh and Ms Maia

140    In this case, Mr Kok was the essential connection between the two contractors of the marriage of convenience, where he had abetted Mr Goh by instigating him to enter into the marriage of convenience with Ms Maia, with an intent to assist Ms Maia in securing an immigration advantage in the form of a Visit Pass as a foreign spouse. Mr Kok had dangled free lodging as inducement for Mr Goh.

141    In sentencing there would be a need to note and distinguish the different roles played by Mr Kok, as instigator/abettor and Mr Goh as the direct participant, as well as the specific benefits each party stood to gain from the arrangement. The premeditated nature of the offence, particularly on Mr Kok's part, was also a salient offence-specific factor in sentencing.

Indexing the sentences of the co-accused persons with the sentence imposed on Ms Maia

142    For the purpose of parity in sentencing, it is apropos to remember that Ms Maia was the third co-accused person, but had in the course of this trial, elected to plead guilty to a single charge under section 57C (1) of the Immigration Act. Ms Maia received a sentence of 6 months’ imprisonment on 8 January 2021 and stood as a prosecution witness before being deported to her native Georgia.

143    Unlike Ms Maia, both Mr Kok and Mr Goh elected to press on to contest their respective charges. I do note, however, that Mr Goh had at times sought to explore a guilty plea and did not actively contest the charge. Ultimately, while Mr Goh opted to proceed with the trial, he maintained an ambivalent disposition in putting forward any substantive defence, and seemingly did not take issue with the prosecution’s case. This was, of course, not the case with Mr Kok.

Testimony of former co-accused PW7, Maia Akhalkatsi, points to key role by Mr Kok

144    For the purpose of assessing the roles of the two accused persons Mr Kok and Mr Goh, it would be apropos to revisit Ms Maia’s evidence. Ms Maia had placed Mr Kok as the central figure in the scheme. He had, after all, proposed the scheme to Ms Maia, offering to introduce a partner to help her stay and work in Singapore, then provided Mr Goh's contact information to Ms Maia for them to communicate WeChat and Viber Chat. Mr Kok arranged for Ms Maia's return to Singapore on 7 January 2016.

Mr Kok’s role in setting up the initial meeting and persuasion to proceed with the marriage

145    It was Mr Kok who had set up the initial meeting between Ms Maia and Mr Goh at his Vietnamese restaurant in Marina Square. After Ms Maia was initially taken aback by Mr Goh's unkempt appearance, Mr Kok had worked to persuade Ms Maia that Mr Goh could improve his appearance and encouraged the marriage. Mr Kok was also the architect of the reciprocal arrangement for Ms Maia to provide shelter for Mr Goh, who had been living in a restaurant, in return for his assistance in visa applications. It was also notable that the marriage was solemnized on 2 February 2016 at Mr Kok's grandparents' residence. Aside from certain sums she paid Mr Kok, Ms Maia testified of benefits he received from her introduction of other fee-paying foreign nationals to him.

Mr Goh’s statements and testimony show his passive role and disinclination to contest his charge

146    As a co-accused person, Mr Goh was forthright even from his time as a criminal investigation suspect. As previously pointed out, in his statement taken in the course of investigation[note: 91], Mr Goh readily stipulated that his reason for entering into the marriage was for shelter. In another statement[note: 92], Mr Goh had been frank in respect of his having assisted Ms Maia with her visit pass extensions and of being compensated with $50-$100 for each Visit Pass extension. At the risk of repetition, I now set out a precis of established facts to better showcase Mr Goh’s limited and fairly passive role.

147    Mr Goh identified co-accused Mr Kok (in P29) as having been the party who contrived the plan for his marriage with Ms Maia. In P27, Mr Goh indicated that Mr Kok had introduced him to Ms Maia and their first meeting had been at Mr Kok’s restaurant in Dec 2015, adding that Mr Kok at this meeting dictated to him (Mr Goh) the terms that he would be marrying Ms Maia, who would, in turn, provide shelter. Mr Goh noted Mr Kok taking such an involved role in their proposed marriage that the latter was the party setting the date of Mr Goh’s marriage with Ms Maia.

148    Mr Goh’s passivity in committing the offence extended to the fact that Mr Kok never even sought his permission to facilitate the wedding with Ms Maia, and his first notice of the upcoming event had been that he (Mr Goh) had been scheduled to attend a pre-marriage assessment while he was going through his email.

149    Notably, Mr Goh indicated his misgivings upon Mr Kok’s declaration that Ms Maia was to marry him. He attested to being unhappy, not least because he was attached to another by then. Despite his initial reluctance, Mr Goh attended a pre-marital preparation class with Ms Maia, where he recalled Mr Kok to incongruously also be in attendance.

150    Mr Goh made a belated bid to assert himself in telling Mr Kok that he was not keen to undergo a sham marriage and that Mr Kok was aware of Mr Goh already involved with a Vietnamese female whom he regarded as his girlfriend. The accused has also taken Mr Goh to stay with Ms Maia for a short period of time, in what appeared to be both a familiarisation exercise and a pressure tactic against Ms Maia’s resistance.

The co-accused persons’ antecedents

151    The prosecution has pointed out that the trial spanned 39 days. In the way of offender specific factors, both Mr Kok and Mr Goh have antecedents, although only Mr Kok’s is directly relevant for sentencing. Mr Goh had a single spent antecedent for criminal breach of trust where he was imprisoned for three weeks in 2001. For the avoidance of doubt, I see no reason to impose any uplift in sentence, and no adjustment has been made on account of this.

152    Mr Kok on the other hand had an immigration related antecedent. Mr Kok also had a spent conviction followed by 14 convictions under the Computer Misuse Act and one for making a false statement in 2011, where he had been sentenced to 12 months’ imprisonment on a run of three charges. More significantly, Mr Kok had on Oct 2015 been convicted of an offence under section 57(1)(k) of the Immigration Act and received a sentence of six weeks’ imprisonment Mr Kok’s appeal was dismissed on 13 May 2016. It is somewhat troubling that he had through this period been involved in the activities set out above in relation to Ms Maia and Mr Goh’s marriage of convenience.

153     In Public Prosecutor v Lim Yung Keng Adam [2022] SGDC 192, the Kow Keng Siong DJ made observations of sentencing patterns in section 57C (1) cases, noting that first time offenders pleading guilty received six months’ imprisonment, while offenders claiming trial (and thus ineligible for any sentencing discount) generally received eight months’ imprisonment.

154    The profiles were also elucidated upon, where the court at [32], further observed that cases where the sentencing norms were applied typically had the following profile:

(a)    The foreign offender is female while the local offender is male.

(b)    The local offender knew – as opposed to merely having reason to believe – that the purpose of the marriage was to assist the foreign offender to obtain an immigration advantage.

(c)    Both the local and foreign offenders were charged for having entered – as opposed to merely having contracted to enter – into a marriage of convenience in Singapore.

(d)    The local offender and/or and foreign offender had taken some steps to deceive the authorities into believing that their marriage was not a sham.

(e)    The gratification was monetary in nature.

The factual matrix justifies Mr Goh receiving a measure of leniency

155    I would agree with the prosecution’s proposition that Mr Goh did fit the typical profile of an archetypal section 57C (1) offender, having embarked into the sham marriage for some recompense while affording Ms Maia an immigration advantage.

156    There was, however, the additional angle of the imposed pressure and coaxing by Mr Kok into entering the marriage of conveyance with Ms Maia, given Mr Goh’s indigent status, as a man who had been turned out by his own family, and thus in need of shelter.

157    Given the above, I found it inappropriate to sentence Mr Goh to the eight-month indicative sentence for claim trial cases. The court must properly consider Mr Goh’s state of want and desperation. It is also the case that Mr Goh did not contest the case with any intensity, and importantly, did little to conceal the offence. Aside from shelter, Mr Goh’s monetary recompense was also fairly paltry, being mostly limited to the $50 - $100 stipend he was given by Ms Maia for each Visit Pass extension done for the latter’s benefit.

Mr Kok’s manner and extent of offending is on an aggravated scale

158    Rather different considerations would apply for Mr Kok, where the grain of evidence identified him as the prime mover and instigator, who relentlessly coaxed Mr Goh into entering the marriage of convenience, knowing full well his vagrant circumstances. I would thus not disagree with the prosecution’s contention that “(Mr) Kok was aware that (Mr) Goh did not have any place to stay and exploited (Mr) Goh’s vulnerability to urge him to enter into the marriage of convenience for free lodging”. While there is some basis to consider a degree of parity between Ms Maia and Mr Goh, the facts against Mr Kok are quite different.

159    In my view the prosecution has correctly aligned their analysis of Mr Kok’s offending to be closer to that of the offender in PP v Mehra Radhika who also arranged a sham marriage. I am largely in agreement with the prosecution’s analysis. It would thus be worthwhile to set out their submissions in extensio[note: 93]:

22    In the case of Mehra Radhika, the High Court had outlined six aggravating factors, at [58], that are relevant to the offence of arranging or assisting in the arrangement of a marriage of convenience. The six aggravating factors as it applies to the present case are as follows:

a)     If active steps were taken to conceal the offence

Kok had prepared a matrimonial agreement and a statutory declaration (P6 and P7) for the sham marriage between Goh and Maia. Kok was also straightforward that he did not seek Goh’s or Maia’s advice before preparing these documents. In addition, Goh himself stated that Kok had told him that he had prepared the said documents to protect himself as he was of the view that he could easily be charged without P6 and P7.

Moreover, Kok had also prepared P41 for Goh to pass to the ICA officer during his interview at ICA building on 04 Jan 2016. This was after Goh had contacted Kok and told him about what had transpired during the interview. P41 consists of Goh’s ‘supposed’ declaration about his marriage to Maia, Maia’s details, Maia’s visa application forms as well as air tickets for Goh to fly to Georgia.

Goh himself had no clue about these documents and it is also confirmed that he had not met Maia yet, prior to his interview at ICA building on 04 Jan 2016. Thus, it is obvious that Kok had prepared P6, P7 and P41 in order to conceal that the marriage between Goh and Maia was a sham marriage and also to conceal his involvement in the said sham marriage.

b) If the offender played a major role in the commission of the offence as opposed to a minor or merely ancillary role

Kok had applied for the notice of marriage (P31) between Goh and Maia as well as the Visa application on 23 Dec 2015 (P35) for Maia to enter Singapore. For P35, it is also crystal clear that Kok had used Goh’s Singpass account to make the Visa application, and he had indicated the status of the relationship between the applicant, Goh and Maia as spouse to be, even though Goh had no knowledge about Maia at the material time. For P31 and P35, these applications were made prior to Maia’s arrival in Singapore.

In addition to these documents, Kok himself testified during the trial that he had coached Maia to show P31 to the immigration officers at Singapore, if she were to encounter any problems during her arrival immigration clearance into Singapore. Lastly, after the marriage on the initial date of 23 Jan 2016 didn’t take place, Maia’s visa was due to expire. At that point, Kok told Maia that the only way out was for her to marry Goh, which then led to the marriage eventually taking place on 02 Feb 2016.

Based on the above, it is unequivocal that Kok was the mastermind behind this sham marriage and had played a major role in the commission of the offence. He had essentially dictated the terms of the marriage, declaring that Goh was to marry Maia, and concomitantly be provided with shelter for so doing.

(c) If the offence was committed as part of a commercial enterprise that was active in the commission of such crimes as opposed to being a one-off incident

There is no evidence that the offence was committed as part of a commercial enterprise. However, it is noteworthy, that in addition to Kok and Goh at the point of arrest, Lim Wee Meng (DW7) was also arrested together for arranging a marriage of convenience between one Aw Kim Huat and Nguyen Thi Tuyet. For the said marriage of convenience, Kok himself had prepared documents similar to P6 and P7 as well…

160    In relation to the last point, the prosecution was able to show that Mr Kok had a template of sorts for such documents to be used, but there had been nothing to suggest a wider scale exploitation. For completeness, Mr Lim Wee Meng, a defence witness, had also been taken to task for arranging a marriage of convenience, under Section 57C (2) of the Immigration Act and received a six month imprisonment sentence.

161    On addressing the point of exploitation or pressure, it was Mr Kok who declared to Mr Goh that Ms Maia would be his future wife, and who, in turn, was expected to reciprocate by giving him shelter. As mentioned above, Mr Goh was essentially beholden to Mr Kok to the point of handing over his Singpass details and furnishing the one-time-passwords he separately received. This largely enabled Mr Kok to unilaterally plan the sham marriage without Mr Goh’s direct co-operation, or indeed even his permission.

162    In his final sentencing submissions, which Mr Kok presented from a set of written submissions sent just a day before this mention, Mr Kok had asserted himself to be a victim of Mr Goh and his primary motive to pair the latter with Ms Maia had been to get rid of Mr Goh whom he had attributed to having contributed to a rat infestation and other problems at his restaurant, as a result of Mr Goh’s sleeping over and failure to properly manage the property. Mr Kok also stated that his haste to “get rid’ of Mr Goh had been because of the latter’s ‘body odour’ which was a deterrent to restaurant customer patronage of his establishment.

163    In relation to Mr Kok’s final submissions, it was all too clear that the assertions minimising his level of involvement run against the grain of evidence. As the prosecution has aptly pointed out, there was considerable work on his part in coaching Ms Maia and preparing falsified documents for this case, and it would be wildly improbable and disproportionate to orchestrate a sham marriage just to “get (Mr Goh) out of his life”.

General deterrence must take a pre-eminent place

164    I have no doubt that general deterrence much take primacy in the sentencing of this genre of cases. As the prosecution has correctly pointed out, marriages are highly personal matters in nature. Marriages of convenience are inevitably difficult to detect. Such sham marriages are an efficient conduit for foreign nationals to enter and remain in Singapore under false pretences, where it is not uncommon that these individuals, under cover of their false marriages engage in socially undesirable work (as was the case with Ms Maia, who was engaged in the nightlife trade) or even activities falling on the wrong side of the law. Such persons could use their marital status to Singaporean spouses as a means to avoid scrutiny of their activities and stymie the monitoring efforts of State agencies on foreign nationals in this country. General deterrence would thus be the principal consideration in deterring like-minded persons from contemplating committing offences of this nature.

Why specific deterrence should apply for Mr Kok as well

165    For Mr Kok, there is the added dimension of specific deterrence, given his commission of this offence occurring almost conterminously with the period between his conviction and the completion of an appeal for an immigration offence in the previous case mentioned above.

166    Indeed, it is remarkable that Mr Kok had been involved in the events in the present case in the period after his conviction for the past case on 27 October 2015, and within the period his appeal was dismissed 13 May 2016.

167    The prosecution has elucidated on the facts of Mr Kok’s prior case to state the following[note: 94]:

32    On 27 Oct 2015, Mr Kok was sentenced after trial to 6 weeks’ imprisonment for committing an offence under Section 57(1)(k) of the IA. He had abetted a female Vietnamese national (“Ngoc”) to make a false statement in the disembarkation form upon her arrival in Singapore. She had stated her address in her disembarkation form as “Block 33 Taman Ho Swee (redacted)”, belonging to a male Singapore Citizen, Ong Chuang Tian (“Ong”).

33    Ong testified that Kok had informed him that he would be paid $2,500 to enter into a sham marriage with Ngoc. When Kok and Ong were in Vietnam, Kok took Ong’s NRIC to copy his address onto Ngoc’s disembarkation form as her address in Singapore. This was despite Ong informing Kok that there was no space for Ngoc to stay with him. Kok then told Ong not to worry as Ngoc’s living arrangements had nothing to do with Ong.

34.    In (Public Prosecutor v) Kok Chiang Loong, the DJ in [13] commented that Kok’s “mission was to bring Ngoc into Singapore for the sham marriage, and he knew Ngoc was previously denied entry into Singapore”. The DJ further added in [15] that Kok “had committed this offence to enable Ngoc to enter Singapore and his act was part of the sham marriage scheme.”

Sentences Imposed

168    After thorough and careful consideration of all salient factors, I imposed the following sentences:

169    For Goh Khoon Beng, noting the special circumstances of his case, I imposed a term of six months’ and three weeks’ imprisonment (taking into consideration his prior remand 22-27 October 2016), to take effect from 30 April 2024[note: 95].

170    For Kok Chiang Loong, looking at the somewhat more aggravated circumstances of his pervasive influence over the co-accused, and direct hand in managing the but also noting the terms given in precedent cases, I impose a term of imprisonment of 10 months’ imprisonment.

Present disposition of the accused

171    The appellant, Kok Chiang Loong, is presently on bail pending the disposition of his appeal against conviction and sentence.

[note: 1]Please refer to Exhibit P33.

[note: 2]Ms Maia’s Statement of Facts, PS-1 of SC-910863-2016, is set out verbatim and unedited. Mr Kok is referred to as “Loong” and Mr Goh is referred to as “Alex” in the Statement of Facts.

[note: 3]This was the statement made on 21 October 2016, under the auspices of section 22 of the Criminal Procedure Code, often colloquially referred to as a ‘long statement”.

[note: 4]Please see Exhibits P9-P20 for visa applications for Ms Maia made under Mr Goh’s sponsorship.

[note: 5]For the remainder of these grounds, all references to “the accused” should be taken to pertain to Kok Chiang Loong as the sole appellant. Goh Khoon Beng, who did not appeal will be referred as “the co-accused”.

[note: 6]Admitted as Exhibit P24.

[note: 7]In P24 at [17].

[note: 8]Ms Maia continues to reference Mr Goh as “Alex” for the remainder of her statement.

[note: 9]Please refer to P24 at [22].

[note: 10]Admitted as Exhibit P25.

[note: 11]Please see Exhibit D4.

[note: 12]At [3]-[4] of Exhibit D4.

[note: 13]At [5] Q2/A2 of Exhibit D4.

[note: 14]Exhibit D4 at Q4/A4.

[note: 15]Ms Maia had studied English before coming to Singapore and had spent a considerable time here before her arrest.

[note: 16]At Notes of Evidence, 29 March 2021, Page 26, Lines 1-9. Hesitations and repeated words in the transcript have been edited for flow and readability. Edited areas are marked with triple full-stops (…).

[note: 17]Please Notes of Evidence, 29 March 2021, Page 26, Lines 11-18.

[note: 18]The ‘marriage visa” referenced here is understood to actually be a Notice of Marriage which is Form A under the Women’s Charter and exhibited as D31. It should be noted that D31 itself is the final printed version and contains subsequent indorsements dated after Ms Maia’s entry on 7 January 2016. The actual application to marry had been made on 1 January 2016, for the marriage to take place 23 January 2016, and Ms Maia seems to be referring to an earlier version of this form sent by the accused via WhatsApp attachment.

[note: 19]At Notes of Evidence, 29 March 2021, Page 29, Line 12 to Page 30, Line 2. Hesitations and repeated words in the transcript have been edited for flow and readability

[note: 20]At Notes of Evidence, 29 March 2021, Page 32, Lines 9-12. Emphasis in bold italics added.

[note: 21]Please see Notes of Evidence, 29 March 2021, Page 34, Lines 6-7.

[note: 22]Please see Notes of Evidence, 29 March 2021, Page 36, Lines 5-11.

[note: 23]At Notes of Evidence, 29 March 2021, Page 37, Lines 26-32.

[note: 24]Please see Notes of Evidence, 29 March 2021, Page 38, Lines 9-12.

[note: 25]At Notes of Evidence, 29 March 2021, Page 46, Lines 25-28. Emphasis in bold italics added.

[note: 26]Please see Notes of Evidence, 29 March 2021, Page 55, Lines 2-10.

[note: 27]At Notes of Evidence, 29 March 2021, Page 60, Lines 1-4.

[note: 28]Admitted as Exhibit P6. The text contents are uncorrected.

[note: 29]Admitted as Exhibit P7.

[note: 30]Please see Notes of Evidence, 29 March 2021, Page 61, Line 3 and Page 62, Lines 6-10.

[note: 31]At Notes of Evidence, 29 March 2021, Page 62, Lines 7-8.

[note: 32]At Notes of Evidence, 29 March 2021, Page 78, Lines 1-6.

[note: 33]These photographic images can be found in Exhibit P-32.

[note: 34]As found in Notes of Evidence, 29 March 2021, Page 82, Lines 4-22.

[note: 35]This person is identified in Exhibit P-30. Please also see Notes of Evidence, 29 March 2021, Page 85, Lines 12-20.

[note: 36]At Notes of Evidence, 29 March 2021, Page 85, Lines 5-7.

[note: 37]Ms Adrienne Grace Milton of Jay Law Corporation.

[note: 38]At Notes of Evidence 18 March 2021, Page 4, Lines 9-14.

[note: 39]Mr Goh was able to obtain a hearing aid at the later part of the trial, but seemed to have minimal difficulty while unaided, and never hesitated to ask for a question to be repeated if he was uncertain.

[note: 40]Please see Notes of Evidence 18 March 2021, Page 16, Lines 13-32.The three statements were admitted as C27, C28 and C29.

[note: 41]The statement is made under section 22 of the Criminal Procedure Code.

[note: 42]P27 at [2].

[note: 43]P27 at [3].

[note: 44]P27 at [4].

[note: 45]Please see P27 at [5].

[note: 46]In P27 at [5].

[note: 47]Please see [11] (Photo 4) of P27.

[note: 48]Please refer to P27 at [7].

[note: 49]In P27 at [7] and [8] respectively.

[note: 50]Please see P27 at Q10/A10.

[note: 51]Please refer to Exhibit P28 entitled Goh Khoon Beng's statement recorded under Section 23 CPC on 22 October 2016.

[note: 52]Please see Exhibit P29.

[note: 53]Please see Exhibit P29 at [3] with emphasis added.

[note: 54]At A16 in Exhibit P29.

[note: 55]Please see Notes of Evidence, 2 August 2022, Page 36, Lines 1-10.

[note: 56]At Notes of Evidence, 17 September 2021, Page 58, Lines 6-22.

[note: 57]Please look at Notes of Evidence, 17 September 2021, Page 35, Line 21.

[note: 58]Please see Notes of Evidence, 2 August 2022, Page 28, Lines 1-19.

[note: 59]Please see Notes of Evidence, 4 August 2022, Page 3, Lines 10-25.

[note: 60]At Notes of Evidence, 4 August 2022, Page 5, Lines 14-18.

[note: 61]Notes of Evidence, 4 August 2022, Page 5, Lines 20-21.

[note: 62]Please see Notes of Evidence, 4 August 2022, Page 6, Lines 1-3.

[note: 63]Notes of Evidence 4 August 2022, Page 6, Lines 4-5.

[note: 64]Admitted as Exhibit P-42 (Original note is rendered in capitalised letters).

[note: 65]Exhibit P-41 entitled “Re: Visa application and pre-marriage long term pass assessment.

[note: 66]Notes of Evidence 4 August 2022, Page 8, Lines 1-4.

[note: 67]Please see Notes of Evidence 31 March 2021, Page 68, Lines 19-24.

[note: 68]Notes of Evidence 13 September 2021, Page 4, Lines 4-10

[note: 69]At [2] of Case for the Defence.

[note: 70]At [3] of Case for the Defence.

[note: 71]At [5] of Case for the Defence.

[note: 72]Notes of Evidence 13 September 2021, Page 42, Lines 4-8.

[note: 73]At Notes of Evidence 13 September 2021, Page 44, Lines 2-6.

[note: 74]Colloquial term for a busybody or person taking an extraneous interest in the affairs of others.

[note: 75]Notes of Evidence 15 September 2021, Page 20, Lines 19-21.

[note: 76]Notes of Evidence 15 September 2021, Page 61, Lines 4-5.

[note: 77]Please see Notes of Evidence 16 September 2021, Page 108, Lines 12-13.

[note: 78]Notes of Evidence 30 March 2021, Page 40, Line 32-Page 41, Line 1.

[note: 79]At Notes of Evidence 29 March 2023, Page 96, Lines 7-18 (verbatim and unedited).

[note: 80]The reference is to Ms Maia.

[note: 81]Please see Exhibit P-3, entitled Statement of Claim seized from Maia.

[note: 82]Please see Notes of Evidence 16 September 2021, Page 55, Lines 1-2.

[note: 83]At [1](b) of Exhibit P-3.

[note: 84]Please see Notes of Evidence, 16 September 2021, Page 55, Lines 8-9.

[note: 85]Please refer to Exhibit P-33 entitled Registrar's Certificate of Akhalkatsi Maia.

[note: 86]Exhibited as P-27, P-28 and P-29.

[note: 87]In P27 at [5].

[note: 88]Please see Notes of Evidence, 17 September 2021, Page 105, Lines 1-22.

[note: 89]In Exhibit P24 at [19].

[note: 90]Please see Notes of Evidence, 16 September 2021, Page 55, Lines 8-9.

[note: 91]Exhibit P29 entitled “(Goh) Khoon Beng's statement recorded under Section 22 CPC” on 1 November 2016.

[note: 92]Exhibit P27 entitled “(Goh) Khoon Beng's statement recorded under Section 22 CPC” on 21 October 2016.

[note: 93]At [22] of Prosecution’s Submission on Sentence.

[note: 94]Please refer to Exhibit F, Prosecution’s Submission on Sentence from [32]-[35]. The case in question is Public Prosecutor v Kok Chiang Loong [2015] SGDC 339

[note: 95]Mr Goh had applied for a sentence deferment.

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Public Prosecutor v Muhammad Ryan Rosmani
[2024] SGDC 239

Case Number:District Arrest Case No 902991 of 2024 & 3 others
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Sharmila Sripathy-Shanaz
Counsel Name(s): Benjamin Low (Attorney-General's Chambers) for the Public Prosecutor; Sui Yi Siong and Janerni Mohan (Harry Elias Partnership LLP) for the accused.
Parties: Public Prosecutor — Muhammad Ryan Rosmani

Criminal Law – Offences – Cheating

Criminal Procedure and Sentencing – Sentencing – Principles

16 September 2024

District Judge Sharmila Sripathy-Shanaz:

Introduction

1       Following his plea of guilt, Mr Muhammad Ryan Rosmani (“Mr Ryan”) has been convicted of two counts of engaging in a conspiracy to cheat two financial institutions, an offence under s 417 read with s 109 of the Penal Code 1871.[note: 1] He also consents to two charges under s 3(1) read with s 12 of the Computer Misuse Act 1993, being taken into consideration for the purpose of sentencing.[note: 2] These offences pertain to Mr Ryan handing his bank accounts’ access code, personal identification number and one-time password to unknown persons thereby facilitating their unauthorised access to banking services. It now falls upon this court to impose a condign sentence.

2       I preface my decision on sentence by addressing several points raised in the Mitigation Plea that warrant a response to set in context what sentencing in this case responds to and relatedly, what it seeks to achieve.

There is Public Interest in Deterring Cheating Offences that Facilitate Organised Crime

3       Cheating offences under s 417 of the Penal Code encompass a wide spectrum of offending. In this case, the court is concerned with actions that deliberately sought to circumvent safeguards in the banking system and ultimately resulted in the deception of two financial institutions. The act of handing over control of one’s bank account to a third party is a key cog in the criminal activities of organised crime syndicates. Sentencing here is about dealing with offenders who help facilitate the activities of such syndicates by giving them access to the legitimate banking system, thereby furthering their criminal enterprise.

4       Where the usurped bank account is then used to funnel illicit proceeds of crime, the egregiousness of the conduct must necessarily be assessed in the context of the burgeoning number of scams-related offences worldwide. I shall not delve into the figures as these are publicly available, however it suffices to highlight that the number of reported scam cases has increased by more than seven-fold, while the amounts lost to scams have quadrupled.[note: 3]

5       These sobering figures underscore the undeniable growing public interest in suppressing scams-related offences. In this connection, the courts play a pivotal role in responding to the urgent need to effectively deter such offences. The penal sanctions imposed on those who, in any capacity, facilitate and fuel these scams must be sufficiently robust to reflect the seriousness of the crime and curb the alarming ease with which many are drawn into committing these offences.

The Factors in the Sentencing Advisory Panel’s Guidelines for Scams-Related Offences are Broadly Relevant

6       This brings me to the next issue that arises in the Mitigation Plea, and that is the submission that Mr Ryan’s offences fall outside the scope of the Sentencing Advisory Panel’s Guidelines for Scams-Related Offences (“the Guidelines”).[note: 4] I would observe that while the Guidelines are not expressly applicable to offences under s 417 of the Penal Code, the suite of offence and offender specific factors distilled therein,[note: 5] would, with the appropriate modifications, clearly inform the court’s assessment of (i) the harm engendered by a s 417 offence involving an offender who has deceitfully procured and thereafter relinquished a bank account that is used to funnel scam proceeds, and (ii) the offender’s culpability for the same. It is to this extent, that these factors are relevant to sentencing in the present case.

7       In a similar vein, it would be remiss for the court to disregard the broad sentencing principles enunciated in the Guidelines,[note: 6] that as a matter of logic, are equally germane to s 417 offences of the nature under consideration.

8       In adopting this approach, I am doing no more than responding to the Defence’s call for the court to take into account the nature of the charges and the relevant facts and circumstances of this case.[note: 7] To be abundantly clear, I am not sentencing Mr Ryan as though he were convicted of the new scams-related offences that only came into force in February 2024.[note: 8] That is not the intent of the court, nor the approach that I have adopted. Though for completeness, I should highlight that the s 417 charges Mr Ryan has been convicted of, are punishable with a fine and/or up to 3 years’ imprisonment, which accords with the prescribed punishment for an offence under s 55A(1)(a) read with s 55A(1)(b)(ii) punishable under s 55A(5) of the CDSA.[note: 9]

The Applicable Sentencing Factors

9       I now turn to consider the interplay between the facts of this case and the relevant sentencing factors.

Offence-specific factors going towards harm

10     In assessing harm, the following factors inform sentencing.

11     Foremost, the offences involve the deliberate deception of a financial institution, which is aggravating as such conduct, if left unchecked has the potential to erode the integrity of, and confidence in, Singapore’s financial infrastructure: Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2013] SGHC 238 at [48] to [49].

12     Second, I cannot ignore the significant harm that has flowed from Mr Ryan’s offences. The Defence’s attempt to confine the court’s assessment to merely the reputational harm suffered by the victim banks,[note: 10] is erroneous. It bears repeating that harm is a measure of the injury which has been caused to society by the commission of the offence[note: 11] and as the High Court cautioned in Newton, David Christopher v Public Prosecutor [2023] SGHC 266 at [64], the court should look at all the surrounding facts that are relevant and proved, to determine “the real nature of the harm caused” even when the harm in question is plainly not an element of the proceeded charge.

13     In the present case, for the purpose of sentencing, this is sufficiently capacious to encompass the harm flowing from the subsequent illicit use of the two bank accounts opened by Mr Ryan, to funnel scam proceeds of more than $70,000 in a short span of time. The Defence’s argument that “no appreciable harm was actually inflicted”[note: 12] is therefore baseless and I reject any characterisation of Mr Ryan’s offences as having caused little or low harm.[note: 13]

Offence-specific factors going towards culpability

14     In assessing culpability, the following are relevant considerations.

15     First, Mr Ryan was motivated by personal gain as the Statement of Facts makes plain that he was tempted by the prospect of quick cash.[note: 14] This lays to rest the Defence’s over-simplistic assertion that he was not motivated by self-interest.[note: 15] As for the Defence’s related contention that Mr  Ryan had acted out of “a misguided sense of filial piety” to alleviate his family’s financial troubles,[note: 16] any sympathy I may hold for his personal circumstances does not erode the established principle of law that financial hardship cannot serve as a justification or mitigation for violating the law: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [10], cited with approval in Toh Suat Leng Jennifer v Public Prosecutor [2022] SGHC 146 at [30].

16     Second, I find no force in the argument that Mr Ryan’s culpability for the offence is low as he “did not know exactly what he was getting into and did not know that he was facilitating the activities of an illegal syndicate”.[note: 17] The Statement of Facts makes plain that Mr Ryan chose not to make further enquiries after Bro’s refusal to tell him what the relinquished bank accounts would be used for.[note: 18] It would thus be perverse for the court to find Mr Ryan’s culpability for the offences reduced on account of his own wilful failure to make the enquiries incumbent upon him to make. In fact, in assessing his culpability for the offences, I cannot ignore the fact that Mr Ryan had proceeded to defraud the banks despite his suspicions, as to Bro’s intentions, being aroused.

17     To be clear, I do not accept the Prosecution’s submission that Mr Ryan’s deceitful opening of a new bank account is an offence-specific sentencing factor[note: 19] since this is the very gravamen of the present s 417 offence. The Sentencing Advisory Panel’s guidance that it is aggravating if the offender had opened a new bank account to be handed over,[note: 20] must be understood in the context of the new CDSA offences which criminalise the relinquishing of bank accounts, new and existing, to third parties for the purpose of accessing, operating or controlling the account.[note: 21] It is in this specific context that the discrete act of opening a bank account, as opposed to handing over control of an existing account, is found to be aggravating since it discloses an added element of deliberation and commitment towards law-breaking. The issue does not feature in the present case and is thus not a relevant factor that I have regard to in sentencing.

Offender-specific factors

18     Balanced against the aforesaid offence-specific harm and culpability factors, are several offender-specific factors which I give weight to in mitigation. These are Mr Ryan’s cooperation with the authorities and his early plea of guilt which I accept are signs of remorse and contrition. I also accept that the present offences are Mr Ryan’s first brush with the law, though this is somewhat tempered by the fact that the two offences that have been taken into consideration, had served to entrench Mr Ryan’s role in enabling the scammers’ illicit scheme.

19     I would reiterate that I do not find it mitigating that the offences were committed out of financial need.

The Sentences Imposed

20     Having regard to (i) the broad sentencing principles implicated in s 417 offences which involve an offender who deceitfully procures and thereafter relinquishes a bank account that is subsequently used to funnel scam proceeds, (ii) the harm, culpability and mitigating factors canvassed, as well as (iii) the maximum prescribed punishment for offences under s 417 of the Penal Code, I take the view that the sentence of 4 weeks’ imprisonment sought by Defence Counsel is unduly lenient and would fail to reflect both the seriousness of the offending and deter like-minded individuals who might similarly be enticed to resort to such conduct.

21     In my judgment, upon weighing the various considerations, a sentence of 4 months’ imprisonment for the 1st and 2nd Charges respectively, is appropriate and proportionate to the criminality before me.

22     Ordinarily, I would have imposed a slightly higher sentence for the 2nd Charge since it pertains to a second, distinct act of offending. However, the aggravation accruing from this repeat offending is balanced by the fact that the harm flowing from the commission of the second offence is considerably lower than that which ensued from the first offence.[note: 22]

The precedents can be distinguished

23     For completeness, I briefly explain why I was not persuaded by the precedents cited by the Defence.

24     I do not regard the sentence of 3 months’ imprisonment imposed for the s 417 offence in Public Prosecutor v Liao Bang Xiong [2023] SGDC 228 (“Liao”) to be an appropriate yardstick against which the present sentences should be calibrated. The harm occasioned by Mr Ryan’s offence is higher since more than $70,000 was funnelled through his bank accounts, as opposed to the $50,000 transacted through the offender’s account in Liao. The culpability of the respective offenders is also not as far removed as the Defence has characterised it to be since Mr Ryan knew enough to become suspicious about how his banks accounts would be used and yet blithely proceeded with his clearly criminal acts (supra at [16]). Specific deterrence is also a relevant consideration here since Mr Ryan committed two cheating offences seven days apart. Ultimately, I do not consider myself constrained by the sentence imposed in Liao, which does not reflect the current context of intensified efforts to combat the ever-growing menace of scams-related offences.

25     I similarly do not regard the sentence of imposed on the offender in Tang You Liang Andruew v Public Prosecutor and another appeal [2022] SGHC 113 (“Andruew Tang”) to be instructive given the vastly different factual matrix involved, viz. the fact that the offender’s bank accounts were not misused, and no losses were caused.[note: 23] That context is entirely absent in the present case. Additionally, the court in Andruew Tang had tempered the sentence imposed on account of the principle of parity between the offender and his co-offenders who had already been sentenced.[note: 24] This consideration does not arise here.

26     For these reasons, I do not find sentencing in the present case to be guided by the precedents cited to me by the Defence. Instead, I have calibrated the sentences by applying my mind to the various factors canvassed earlier to determine where in the range of punishment prescribed for s 417 offences, Mr Ryan’s offending behaviour falls.

The Aggregate Sentence

27     Although the offences are distinct instances of offending, I order the sentences to run concurrently. In my judgment, an aggregate sentence of 4 months’ imprisonment reflects the egregiousness of the crime, accounts for Mr Ryan’s culpability and serves as an adequate deterrent to those who might similarly be enticed to resort to such conduct.

[note: 1]1st and 2nd Charges, DAC-902991-2024 and DAC902992-2024 respectively

[note: 2]3rd and 4th Charges, DAC-902993-2024 and DAC-902994-2024 respectively

[note: 3]Sentencing Advisory Panel’s Guidelines for Scams-Related Offences at [5]

[note: 4]Mitigation Plea at [18] to [27]

[note: 5]Guidelines at [13] and [15] to [17]

[note: 6]Guidelines at [5] to [7]

[note: 7]Mitigation Plea at [17]

[note: 8]ss 51(1), 51(1A) and 55A(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and ss 8A and 8B of the Computer Misuse Act 1993 (“CMA”)

[note: 9]Which carries a prescribed punishment of a fine up to $50,000 and/or up to 3 years’ imprisonment

[note: 10]Mitigation Plea at [35] to [37]

[note: 11]Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [41]

[note: 12]Mitigation Plea at [37]

[note: 13]Mitigation Plea at [34] to [37]

[note: 14]SOF at [4]

[note: 15]Mitigation Plea at [47]

[note: 16]Mitigation Plea at [47]

[note: 17]Mitigation Plea at [47]

[note: 18]SOF at [4]

[note: 19]Address on Sentence at [12(a)]

[note: 20]Guidelines at [13(a)]

[note: 21]Criminalised by virtue of

[note: 22]SOF at para [10] states that $69,800 in scam proceeds was transacted through the account which is the subject matter of the 1st Charge, whereas para [18] of the SOF states that at least $2,800 was transacted through the account which is the subject matter of the 2nd Charge.

[note: 23]Andruew Tang at [23] and [62]

[note: 24]Andruew Tang at [58]

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Disqualification from holding or obtaining a driving license"],"date":"2024-10-07","court":"District Court","case-number":"DAC No. 909603-2024, Magistrate's Appeal No. 9181-2024-01","title":"Public Prosecutor v Mohammad Hisyam Bin Basheer","citation":"[2024] SGDC 263","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32279-SSP.xml","counsel":["DPPs Xavier Tan and David Menon (Attorney-General's Chambers) for the Prosecution","Accused in Person"],"timestamp":"2024-10-13T16:00:00Z[GMT]","coram":"Ong Hian Sun","html":"Public Prosecutor v Mohammad Hisyam Bin Basheer

Public Prosecutor v Mohammad Hisyam Bin Basheer
[2024] SGDC 263

Case Number:DAC No. 909603-2024, Magistrate's Appeal No. 9181-2024-01
Decision Date:07 October 2024
Tribunal/Court:District Court
Coram: Ong Hian Sun
Counsel Name(s): DPPs Xavier Tan and David Menon (Attorney-General's Chambers) for the Prosecution; Accused in Person
Parties: Public Prosecutor — Mohammad Hisyam Bin Basheer

Criminal Procedure and Sentencing – Sentencing – Disqualification from holding or obtaining a driving license

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9181/2024/01.]

7 October 2024

Senior District Judge Ong Hian Sun:

Introduction

1       Mr Mohammad Hisyam Bin Basheer (“the accused”), a 40-year-old male Singaporean pleaded guilty and was convicted on the following charge:

“..are charged that you, on the 2nd day of April 2023, at about 6.26 pm, did ride motorcycle, FBK3955T along Woodlands Avenue 5 towards the direction of Woodlands Avenue 9, and cross junction of Woodlands Avenue 3, Singapore in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which was actually at the time, on the road, to wit, by failing to conform to the traffic red light signal while travelling straight into the signalized cross junction of Woodlands Avenue 3, and resulted in a collision with motor bus, SMB176L which was travelling straight from your right to left side, on traffic green light signal, by such driving, you have thereby committed an offence under Section 64(1) of the Road Traffic Act 1961, punishable under Section 64(2C)(a) of the same Act.” (DAC 909603-2024).

2       I sentenced him to a term of imprisonment of 1 week and disqualification from driving all classes of vehicles for a period of 12 months.

3       The accused had served his term of imprisonment. However, being dissatisfied with my decision, he is now appealing against the order of disqualification. I hereby set out the reasons for my sentence.

Punishment Prescribed by Law

4       The punishment prescribed under section 64(1) of the Road Traffic Act 1961, punishable under Section 64(2C)(a) of the same Act is a fine not exceeding $5000 or a term of imprisonment not exceeding 12 months, or with both.

5       Section 42(1) of the Road Traffic Act, Cap 276 provides that a court before which a person was convicted of any offence in connection with the driving of a motor vehicle, could also order that person to be disqualified from holding or obtaining a driving license for life or for such period as the court might think fit.

Statement of Facts

6       The salient parts of the Statement of Facts which the accused admitted without qualification are as follows.

7       The accused is Mohammad Hisyam Bin Basheer, a 40-year-old Singaporean male.

8       On 2 April 2023, at about 6.26pm, the accused was riding a motorcycle bearing plate number FBK3955T (“the motorcycle”) along Woodlands Avenue 5 towards the direction of Woodlands Avenue 9. At the same time, one Chong Yong Tian (“Chong”) was driving a motorbus bearing plate number SMB176L out from Woodlands Bus Interchange, along Woodlands Avenue 3.

9       Chong travelled along Woodlands Avenue 3 and approached the junction of Woodlands Avenue 3 and Woodlands Avenue 5 (“the junction”). As Chong approached the junction, the traffic light was green in his favour, and at least three cars and one motorcycle were stopped behind the stop line along Woodlands Avenue 5, at the junction, as the traffic light towards Woodlands Avenue 5 was red. The accused approached the junction as well.

10     Chong drove the bus across the stop line along Woodlands Avenue 3, into the junction. Suddenly, the accused rode the motorcycle past the stop line along Woodlands Avenue 5 when the traffic light was red and not in his favour, and collided into the left side of the bus. The accused fell off the motorcycle.

11     Chong stopped the bus, opened the door, and asked the accused if he was okay. The accused said he was and pushed the motorcycle away from the junction. Chong then continued driving along Woodlands Avenue 3, away from the junction. No hurt was caused to Chong or the bus passengers.

12     By virtue of the foregoing, the accused, on 2 April 2023, at about 6:26pm, rode the motorcycle along Woodlands Avenue 5 at the junction, in a manner which was dangerous to the public, having regard to all the circumstances of the case, including nature, condition, and use of the road and the amount of traffic which was on the road at the time, namely, by failing to conform to the traffic red light signal while travelling straight into the junction, resulting in a collision with a motorbus bearing plate number SMB176L, which was travelling into the junction on a traffic green light signal. He has thereby committed an offence under s 64(1) of the Road Traffic Act 1961, punishable under s 64(2C)(a) of the same Act.

13     The accused was traced but not related to any road traffic offences.

Prosecution’s submissions on sentence

14     The accused did not have any relevant antecedents in relation to this traffic offence and the Prosecution sought a short custodial sentence of up to an imprisonment term of one week with a disqualification from driving all classes of vehicles for a period of 12 months and for the sentence of imprisonment to be backdated to the date of his arrest as the accused had spent a substantial period in remand and the period of his remand would have outstripped his sentence of imprisonment for this traffic offence.

15     On the issue of disqualification, the Prosecution was of the view that a 12 months’ disqualification order should be imposed.

Mitigation Plea

16     The accused had sought a disqualification order for a period of less than 12 months in view of the hardship that will be caused if he was sentenced to a longer period of disqualification as he relied on his driving licence for his living.

Decision

17     As recognized by Menon CJ in the case of Edwin Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13] – [14]: “A disqualification order combines three sentencing objectives: punishment, protection of the public and deterrence......Where an offence reflects a blatant disregard for the safety of other road users and a lack of personal responsibility, there is a public interest in taking such a driver off the roads for a substantial period of time, The aims of deterrence are also served by sounding a stiff warning that such drivers can expect a lengthy disqualification order. The disqualification order should therefore increase in tandem with the severity of the offence, whether or not it is also accompanied by a substantial fine or period of imprisonment.” (emphasis added in bold).

18     In the present case, the accused had driven in a manner which posed a danger to the public by beating a traffic light at a road traffic junction resulting in an accident. It was only fortuitous that there was no injury caused to the bus driver and the passengers in the bus. The accused had driven in an irresponsible manner with blatant disregard to the safety of other road users when it should be clear to the accused that at least three cars and one motorcycle had already stopped behind the stop line along Woodlands Avenue 5, at the junction before the accused approached the traffic light junction.

19     In my view a deterrent sentence of a substantial period of disqualification is necessary to deter the accused and other like-minded persons from taking such risks by beating the traffic light without regard to the safety of other road users.

20     I was also of the view that hardship caused to the accused arising from his disqualification order which will deprive him from working as a delivery driver was not a mitigating factor as this was brought about by himself. This court’s main consideration in imposing an appropriate period of disqualification was to protect the safety of the public. Hence, a disqualification period of 12 months was adequate deterrence for the accused in the circumstances of the present case.

21     I noted that the accused was in remand for a substantial period of time as he had nobody to bail him out until his father eventually agreed to post bail for him. He only decided to take up the offer by the Prosecution on the first day of his trial after the Prosecution offered to apply for his six remaining Penal Code and Protection From Harassment Act related charges that he faced to be discharged not amounting to acquittal. I was not minded granting him any reduction in his disqualification order as the matter was delayed because the accused was contesting his non-road-traffic related charges and there was apparently some disagreement between him and his father that resulted in the father posting bail for him only after he had served a substantial period of his remand.

Conclusion

22     For the reasons set out above, I sentenced the accused to 1 week imprisonment and a disqualification period of 12 months with effect from his date of sentence.

"},{"tags":["Civil procedure – Costs – Whether costs should be on an indemnity basis"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit No 2309 of 2021, District Court Appeal No 17 of 2024","title":"Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.","citation":"[2024] SGDC 244","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32277-SSP.xml","counsel":["Ong Zhenhui Wayne and Lim Xiao Ping (Wayne Ong Law Practice) for the Plaintiffs","Rezza Gaznavi (Mahmood Gaznavi Chambers LLC) for the Defendant."],"timestamp":"2024-10-11T16:00:00Z[GMT]","coram":"Samuel Wee","html":"Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.

Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd.
[2024] SGDC 244

Case Number:District Court Suit No 2309 of 2021, District Court Appeal No 17 of 2024
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Samuel Wee
Counsel Name(s): Ong Zhenhui Wayne and Lim Xiao Ping (Wayne Ong Law Practice) for the Plaintiffs; Rezza Gaznavi (Mahmood Gaznavi Chambers LLC) for the Defendant.
Parties: Ng Poh Keng — Chang Lang Peng — Fatimah Mohsin The Wedding Gallery Pte. Ltd.

Civil procedure – Costs – Whether costs should be on an indemnity basis

[LawNet Editorial Note: An appeal to this decision has been filed in HC/DCA 17/2024.]

23 September 2024

District Judge Samuel Wee:

Introduction

1       In Ng Poh Keng and another v Fatimah Mohsin The Wedding Gallery Pte. Ltd. [2024] SGDC 196 (“Judgment”, which abbreviations and definitions I adopt), I determined that:

(a)     The Plaintiffs succeeded in their claim against the Defendant for damages of $11,713.68 arising from the Defendant’s failure to make payment of the outstanding sums payable under the 2018 Tenancy Agreement, plus contractual interest at 10% per annum from the date of writ to the date of judgment (“Unpaid Rent Claim”).

(b)     The Defendant succeeded in its counterclaims regarding:

(i)       The Plaintiffs’ wrongful termination of the 2018 Tenancy Agreement (“Wrongful Termination Counterclaim”), and was awarded $34,536 in damages plus interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment.

(ii)       The Plaintiffs’ breach of the Roof Maintenance Clause and Quiet Enjoyment Clause (“Leakage Counterclaim”), and was awarded $79,285.88 in damages relating to the Damaged Gowns and Outfits and Restored Outfits (“Leakage Damages Award”) and $2,142 in loss of profits as a result of the Jan 2021 Leakage, plus interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment.

2       On 28 August 2024, I fixed costs of $27,000 against the Plaintiffs. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

3       The Defendant has filed an appeal against my decision on costs, and I now provide the full grounds for the same.

The parties’ positions

The Defendant’s position

4       The Defendant sought costs of $85,000 on an indemnity basis.[note: 1] The broad breakdown of the amount sought, which the Defendant quantified based on the Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore in Appendix G of the Supreme Court Practice Directions 2021 is as follows:[note: 2]

(a)     Pre-trial work: $27,000[note: 3] plus an uplift for costs on an indemnity basis.

(b)     Trial (5.5 days): $33,000 plus an uplift for costs on an indemnity basis (being a daily tariff of $6,000).

(c)     Post-trial work: $15,000 plus an uplift for costs on an indemnity basis.

(d)     Various summonses: $1,500 plus an uplift for costs on an indemnity basis. The summonses in question were DC/Sum 720/2024, which was the Defendant’s application for Mr Taaffe to file a further expert report; and DC/Sum 3512/2022 and DC/Sum 2940/2023, which were summonses for further directions.[note: 4]

5       While the Plaintiffs succeeded in the Unpaid Rent Claim, the Defendant argued that the Plaintiffs should not be entitled to costs because:

(a)     The Defendant had an equitable right of set-off in light of the Wrongful Termination Counterclaim and the Leakage Counterclaim.[note: 5]

(b)     The sum awarded in favour of the Defendant for the Wrongful Termination Counterclaim and the Leakage Counterclaim was larger than the sum awarded in favour of the Plaintiffs for the Unpaid Rent Claim.[note: 6] In this regard, the Defendant’s tabulation of the total award including interest was as follows:

(i)       The total value of the award for the Unpaid Rent Claim after accounting for contractual interest at 10% per annum from the date of writ to the date of judgment interest was $15,324.06.[note: 7]

(ii)       The total value of the award for the Wrongful Termination Counterclaim and the Leakage Counterclaim after accounting for interest at the rate of 5.33% per annum from the date the counterclaim was filed to the date of judgment was $134,641.98.[note: 8]

6       The Defendant argued that costs should be on indemnity basis from 14 July 2021 onwards (being the date of commencement of DC/DC 2309/2021 (“DC 2309”)) as there were two offers to settle made by the Defendant that the Plaintiffs did not accept, and the Plaintiffs commenced DC 2309 even though the Defendant’s solicitors sent a pre-action letter to rebut the Plaintiffs’ claims (“Pre-Action Letter”).

7       The first offer to settle was made on 18 November 2022 (“OTS 1”).[note: 9]

(a)     In OTS 1, the Defendant proposed the following:

a.    Both the [Defendant] and [Plaintiffs] shall withdraw their respective claims and file a Notice of Discontinuance with no order as to costs.

b.    This Offer to Settle shall be without prejudice to the rights of the [Defendant’s] insurers to pursue any claim available to the insurers under the contract of insurance between the [Defendant] and the insurers and / or any claim available to the insurers at law and /or at equity against the [Plaintiffs].

c.    If this Offer to Settle is accepted by the [Plaintiffs] by 4pm on 5 December 2022, time being of the essence, parties shall file and serve a Notice of Discontinuance within 7 working days of such acceptance.

d.    If this Offer to Settle is accepted by the [Plaintiffs] after 4pm on 5 December 2022, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] on an indemnity basis from 5 December 2022 until the date of acceptance of this Offer to Settle.

e.    All costs are to be agreed or taxed or fixed by the Court.

f.    In the event this Offer to Settle is accepted, parties shall be disentitled from commencing any further action in respect of all matters raised in the pleadings in DC/DC 2309/2021 save that the [Defendant’s] insurers shall be at liberty to proceed as the insurers deem fit as stated in [paragraph b].

(b)     The Defendant argued that costs should be on an indemnity basis as OTS 1 was more favourable than the outcome under the Judgment because:[note: 10]

(i)       If the Plaintiffs had accepted OTS 1, the Unpaid Rent Claim and the Wrongful Termination Counterclaim would not have been pursued by the parties, and the Plaintiffs would have only had to address the Leakage Counterclaim that the Defendant’s insurers could pursue against them. In that event, the quantum to be attributed to the Leakage Counterclaim raised by the Defendant’s insurers would have been limited to the Leakage Damages Award of $79,285.88 in light of the Judgment.

(ii)       The overall effect of the Judgment (after accounting for interest – see [5(b)] above) was that the Plaintiffs had to pay the Defendant $119,317.92, which was more than the $79,285.88 that the Plaintiffs would have to pay if the Defendant’s insurers pursued the Leakage Counterclaim.

8       The second offer to settle was made on 31 January 2023 (“OTS 2”).[note: 11]

(a)     In OTS 2, the Defendant proposed the following:

a.    The [Defendant] and [Plaintiffs] shall abandon all claims in DC/DC 2309/2021.

b.    The OTS is without prejudice to the rights of the [Defendant’s] insurers to pursue any claim available to the insurers in relation to the flooding / water seepage on 10 January 2021 at [the Shophouse] under the contract of insurance between the [Defendant] and the insurers and / or any claim available to the insurers at law and / or at equity against the [Plaintiffs] and/or the [Plaintiffs’] insurers, whether such claim is pursued in the name of the [Defendant] and/or the [Defendant’s] insurers, and the damages of such claim amount shall be limited to $102,659.60 (not inclusive of any interest, costs or disbursements to be taxed or agreed or fixed by the court).

c.    If this OTS is accepted by the [Plaintiffs] by 4pm on 15 February 2023, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] agreed in the sum of $15,000 (the “Costs”) or alternatively costs to be taxed or fixed by the Court, and parties shall file a Notice of Discontinuance within seven (7) working days of such acceptance.

d.    If the OTS is accepted by the [Plaintiffs] after 4pm on 15 February 2023, time being of the essence, the [Plaintiffs] shall pay costs to the [Defendant] on a standard basis from date of counterclaim to 15 Feb 2023 and thereafter costs on an indemnity basis from 16 February 2023 until the date of acceptance of this OTS.

e.    In the event this OTS is accepted, parties shall be disentitled from commencing any further action in respect of all matters raised in the pleadings in DC/DC 2309/2021 save that the [Defendant’s] insurers shall be at liberty to proceed, whether in the [Defendant’s] name or otherwise, as the [Defendant’s] insurers deem fit as stated in [paragraph b].

(b)     One key difference between OTS 1 and OTS 2, was that the Defendant (as opposed to the Defendant’s insurer, who was not a party to OTS 2) purported to limit the quantum of the Leakage Counterclaim by the Defendant’s insurer to $102,659.60 under OTS 2.

(c)     The Defendant argued that costs should be on an indemnity basis as OTS 2 was more favourable than the outcome under the Judgment for similar reasons as those raised for OTS 1 (see [7(b)] above). In addition, it argued that the maximum amount the Plaintiffs would have had to pay under OTS 2 if the Defendant’s insurer pursued the Leakage Counterclaim was limited to $102,659.60 plus interest, which was less than the overall effect of the Judgment (after accounting for interest – see [5(b)] above).[note: 12] In this regard, I found the Defendant’s argument peculiar, as I could not see how the Plaintiffs could have enforced the alleged limit against the Defendant’s insurer, who was not a party to OTS 2; and harboured doubts on whether the figure had any meaningful effect on the Plaintiffs.

9       The Pre-Action Letter[note: 13] was sent on 17 June 2021 by the Defendant’s solicitors to rebut the claims in the Plaintiffs’ letter of demand dated 28 May 2021.[note: 14] In the Pre-Action Letter, the Defendant refuted the Plaintiffs’ claims and indicated that it would raise the Wrongful Termination Counterclaim and Leakage Counterclaim if the Plaintiffs decided to commence proceedings.

The Plaintiffs’ position

10     The Plaintiffs took the position that parties should bear their own costs.[note: 15]

11     They argued that costs should be on a standard basis, as DC 2309 was not commenced without basis and the Plaintiffs’ conduct was not dishonest, abusive or improper (Lim Oon Kuin and others v Ocean Tankers (Pte) Ltd (interim judicial managers appointed) [2022] 1 SLR 434 (“Lim Oon Kuin”) at [36]).[note: 16]

12     They took the position that the costs awarded should take into account the manner which the Defendant conducted the proceedings, which resulted in unnecessary costs being incurred, and pointed to the following:[note: 17]

(a)     The Defendant relied on the 4th Wrongful Termination Argument regarding the moratorium under section 19G of the COVID-19 Act even though the moratorium ended before DC 2309 was commenced.

(b)     The Defendant cross-examined one of the Plaintiffs’ witnesses, Mr Beh, for 1.5 days on issues relating to the moratorium under the COVID-19 Act, but did not refer to his evidence in its Closing Submissions.

(c)     The Defendant was dishonest in the conduct of its case by raising various oral agreements, which were made up (ie. the Alleged Additional Terms under the 5 Nov 2020 Agreement, the Alleged 9 Jan 2021 Agreement and the Alleged 12 Jan 2021 Agreement).

(d)     The Defendant proffered 6 arguments that the Plaintiffs wrongfully terminated the 2018 Tenancy Agreement, but only succeeded on one argument, which was an issue of law rather than fact.

(e)     The Defendant referred to Past Incidents 1 to 4 even though they were unrelated to the Leakage Counterclaim.

13     The Plaintiffs also pointed out that the awards of $34,536 and $81,427.88 for the Wrongful Termination Counterclaim and the Leakage Counterclaim respectively were less than the amounts of $78,402 and $155,344.50 sought by the Defendant.

Decision

Entitlement to costs

14     Although the Plaintiffs succeeded in part of their claim, it was apparent that the sums awarded for the Defendant’s counterclaim were significantly larger. I therefore found that costs should be in favour of the Defendant (Saha Ram Krishna & Others v Tan Tai Joum (acting in his capacity as the personal representative of the estate of Tan Hee Liang, deceased [2024] SGHC 9 at [144]).

Whether costs should be on an indemnity basis

15     It was not clear from the Defendant’s Costs Submissions whether it was relying on the provisions under Order 22A rule 9 of the Rules of Court (2014 Rev Ed) (“ROC 2014”) in support of its argument for costs on an indemnity basis, or whether it was relying on the provisions under Order 59 rule 27 of ROC 2014.

16     In its Costs Submissions, the Defendant gave three separate dates which it purported to seek costs on an indemnity basis from: (a) 14 July 2021 in light of the Pre-Action Letter;[note: 18] (b) 5 December 2022 in light of OTS 1;[note: 19] and (c) 31 January 2023 in light of OTS 2.[note: 20] However, in its conclusion, the Defendant ultimately computed costs on an indemnity basis from 14 July 2021 (being the date of commencement of DC 2309),[note: 21] which pre-dated both OTS 1 and OTS 2.

17     It therefore appeared to me that Order 22A rule 9 of ROC 2014 could not have been the primary basis that the Defendant was relying on to seek costs on an indemnity basis, as the said provisions refer to such costs being triggered from the date the offer to settle was served as opposed to being from the date proceedings were commenced.

18     Nevertheless, I considered both Order 59 rule 27 and Order 22A rule 9 of ROC 2014 to reach my decision that costs should not be ordered on an indemnity basis in this case.

Order 59 rule 27 of ROC 2014

19     Under Order 59 rule 27 of ROC 2014, costs are typically awarded on a standard basis, and an order for costs on an indemnity basis is appropriate only in exceptional circumstances (CCM Industrial Pte Ltd v Uniquetech Pte Ltd [2009] 2 SLR(R) 20 (“CCM Industrial”) at [32]). Order 59 rule 27 of ROC 2014 states:

Basis of taxation (O. 59, r. 27)

27.—(1)    Subject to the other provisions of these Rules, the amount of costs which any party shall be entitled to recover is the amount allowed after taxation on the standard basis where —

(a)    an order is made that the costs of one party to proceedings be paid by another party to those proceedings;

(b)    an order is made for the payment of costs out of any fund; or

(c)    no order for costs is required,

unless it appears to the Court to be appropriate to order costs to be taxed on the indemnity basis.

20     The touchstone for an order of costs on an indemnity basis is unreasonable conduct. To this end, I reproduce the Court of Appeal’s decision in Lim Oon Kuin at [36]:

A court, in deciding whether to make an order for indemnity costs, should necessarily have regard to all the circumstances of the case, with the touchstone being that of unreasonable conduct, as opposed to conduct that attracts moral condemnation (see the English High Court decision of Three Rivers District Council v The Governor and Co of the Bank of England (No 6) [2006] EWHC 816 (Comm) at [25]). Some examples of unreasonable conduct include situations where: (a) the action is speculative, hypothetical or clearly without basis; (b) a party’s conduct in the course of proceedings is dishonest, abusive or improper; or (c) where the action amounts to wasteful or duplicative litigation or would otherwise constitute an abuse of process (see the decision of the High Court in Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103 at [22] and [49]). While such a discretion to order indemnity costs “is unfettered, it must necessarily be exercised judicially” (see the decision of the High Court in CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment (Asia) Pte Ltd [2021] 4 SLR 883 at [222]).

21     The Defendant relied on the existence of OTS 1, OTS 2 and the Pre-Action Letter to justify an award of costs on an indemnity basis.

22     In this regard, I found that there was no unreasonable conduct on the part of the Plaintiffs insofar as OTS 1, OTS 2 and the Pre-Action Letter were concerned, and hence no basis to award costs on an indemnity basis under Order 59 rule 27 of ROC 2014.

23     First, the Plaintiffs’ failure to accept OTS 1 or OTS 2 could not be considered unreasonable. Accepting OTS 1 or OTS 2 would not have resulted in finality for the Plaintiffs insofar as the Leakage Counterclaim was concerned. Even if they accepted OTS 1 or OTS 2, the Plaintiffs would have still been exposed to fresh proceedings being commenced by the Defendant’s insurer to pursue the Leakage Counterclaim.

24     Second, the Plaintiffs’ conduct relating to the Pre-Action Letter was not unreasonable.

(a)     The Pre-Action Letter merely set out the Defendant’s rebuttal of the Plaintiffs’ claims together with the existence of the Defendant’s Wrongful Termination Counterclaim and the Leakage Counterclaim. It included tenuous computations of the potential damages involved, and made no reference to any documentary evidence or other legal or substantive basis that would have extinguished the Plaintiffs’ claims in totality. Consequently, I did not see any merit to the Defendant’s argument that the Plaintiffs should not have commenced DC 2309 after receiving the Pre-Action Letter.

(b)     Further, contrary to the misleading argument in the Defendant’s Costs Submissions that “the Defendant was prepared to let the matter rest if the Plaintiffs did not pursue the Defendant for [the Plaintiffs’ claims]”, the Pre-Action Letter did not reflect an offer of amicable resolution.

25     For completeness, I agreed with the Plaintiffs that there was no unreasonable conduct on their part, or other circumstances that would have justified an award of costs on an indemnity basis against them.

Order 22A rule 9 of ROC 2014

26     Order 22A rule 9 of ROC 2014 sets out instances where a party would be entitled to costs on an indemnity basis when an offer to settle in the prescribed form is made. The award of such costs is however subject to the overriding discretion of the court.

27     It is well established that “an offer to settle must be a serious and genuine offer and not just to entail the payment of costs on an indemnity basis. It should contain in it an element which would induce or facilitate settlement” (Man B&W Diesel S E Asia Pte Ltd and another v PT Bumi International Tankers and another appeal [2004] 3 SLR(R) 267 at [8]). Further, “The whole object of O 22A is to spur the parties to bring litigation to an expeditious end without judgment, and thus to save costs and judicial time” (Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 439 at [37]).

28     I found that OTS 1 and OTS 2 were not serious and genuine offers for the purposes of invoking Order 22A rule 9 of ROC 2014 and awarding costs on an indemnity basis. As mentioned at [23] above, accepting OTS 1 or OTS 2 would not have resulted in finality for the Plaintiffs insofar as the Leakage Counterclaim was concerned, and there was little incentive for the Plaintiffs to accept the same (Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd and others [2001] 1 SLR(R) 38 at [11]).

29     In light of the above, it was not necessary for me to determine whether OTS 1 and OTS 2 were more favourable than the outcome under the Judgment.

Quantification of costs

30     It is trite that the award of costs is in the discretion of the court (Order 59 rule 2(2) of ROC 2014). In exercising this discretion, the court may take into account “the conduct of all the parties, including conduct before and during the proceedings” (Order 59 rule 5(b) of ROC 2014); and the fact that “a party has failed to establish any claim or issue which he has raised in any proceedings, and has thereby unnecessarily or unreasonably protracted, or added to the costs or complexity of those proceedings” (Order 59 rule 6A of ROC 2014).

31     In this regard, I found that the Defendant should only be entitled to two-thirds of its costs as it had failed on various issues that took up a considerable amount of time during the trial and the proceedings:

(a)     First, the Defendant succeeded in only one of its six arguments under the Wrongful Termination Counterclaim.

(i)       The Defendant only succeeded in the 3rd Wrongful Termination Argument, which related to a narrow issue of whether the Plaintiffs satisfied the common law requirement of issuing a formal demand for payment before effecting re-entry of the Shophouse (see [57]-[60] of the Judgment).

(ii)       It failed in the 1st, 2nd and 6th Wrongful Termination Arguments, which revolved around the Defendant’s unmeritorious position regarding: (1) the time period that rent had to remain unpaid before the Plaintiffs could exercise their right of re-entry; (2) the Alleged 9 Jan 2021 Agreement; and (3) the Alleged 12 Jan 2021 Agreement (see [54], [55] and [69]-[71] of the Judgment).

(iii)       The 4th Wrongful Termination Argument, which related to the moratorium under the COVID-19 Act against the termination of lease agreements and a landlord’s exercise of his right of re-entry in relation to the non-payment of rent, was chronologically unsustainable and had no logical basis whatsoever (see [62]-[64] of the Judgment).

(iv)       The Defendant also failed in the 5th Wrongful Termination Argument regarding the Defendant’s withholding of payment of rent because of the Plaintiffs’ breaches of the 2018 Tenancy Agreement (see [65]-[68] of the Judgment).

(b)     Second, the Defendant raised irrelevant facts regarding Past Incidents 1 to 4 even though they had absolutely nothing to do with the main roof of the Shophouse and the Leakage Counterclaim (see [81]-[92] of the Judgment).

32     I therefore fixed costs (on a two-thirds basis) at $27,000, which was fair and reasonable in the circumstances. In coming to this decision, I was mindful that:

(a)     The subject matter of DC 2309 was not complex. The issues involved were largely factual in nature. While an expert was engaged by the Defendant and a few issues of law were addressed, these did not have much effect on the overall complexity of the case, which remained low.

(b)     The Defendant’s solicitors had pegged the costs sought to the amounts for commercial claims under Section III(A)(i)(4) of Appendix G of the Supreme Court Practice Directions 2021,[note: 22] even though Appendix G did not apply for obvious reasons. A tabular comparison showing that the costs sought by the Defendant fell squarely within the range under Appendix G is as follows:

 

Pre-trial

Trial (daily tariff)

Post-trial work

Amount under Appendix G

$25,000 – $70,000

$6,000 – $16,000

Up to $35,000

Amount sought [note: 23]

$27,000[note: 24]

$6,000 x 5.5 days

$15,000



Conclusion

33     Costs were fixed at $27,000 payable by the Plaintiffs to the Defendant. Disbursements were to be agreed, failing which parties had liberty to write in for directions.

34     For completeness, the said costs were fixed on 28 August 2024, before the introduction of the Guidelines for Party-and-Party Costs Awards in District Court Cases in the State Courts of Singapore in Appendix H of the State Courts Practice Directions 2021, which came into force on 13 September 2024.

[note: 1]Defendant’s Costs Submissions dated 26 August 2024 (“DFCostsSubs”)_[13].

[note: 2]DFCostsSubs_[18], [22].

[note: 3]This figure comprises S/N 1, 2, 3, 4 and 6 of DFCostsSubs_[22].

[note: 4]DFCostsSubs_[20]-[21].

[note: 5]DFCostsSubs_[7].

[note: 6]DFCostsSubs_[8].

[note: 7]DFCostsSubs_[6].

[note: 8]DFCostsSubs_[4].

[note: 9]DFCostsSubs_[14], 20-22.

[note: 10]DFCostsSubs_[15]-[16].

[note: 11]DFCostsSubs_[9], 15-18.

[note: 12]DFCostsSubs_[10]-[11].

[note: 13]DFCostsSubs_27-29.

[note: 14]DFCostsSubs_24-25.

[note: 15]Plaintiffs’ Costs Submissions dated 26 August 2024 (“PFCostsSubs”)_[14].

[note: 16]PFCostsSubs_[3]-[4].

[note: 17]PFCostsSubs_[8].

[note: 18]DFCostsSubs_[17].

[note: 19]DFCostsSubs_[16].

[note: 20]DFCostsSubs_[13].

[note: 21]DFCostsSubs_[22].

[note: 22]DFCostsSubs_[18].

[note: 23] DFCostsSubs_[18], [22].

[note: 24]This figure comprises S/N 1, 2, 3, 4 and 6 of DFCostsSubs_[22].

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Cisilia Oktavia Lim v Reins International (Singapore) Pte Ltd
[2024] SGMC 68

Case Number:Originating Claim No 1646 of 2023
Decision Date:30 September 2024
Tribunal/Court:Magistrate's Court
Coram: Teo Guan Siew
Counsel Name(s): Mr Chen Kok Siang Joseph [Joseph Chen & Co] for the claimant; Mr Chai Ming Kheong and Ms Vivian Leung Nga Yu [JC Law Asia LLC] for the defendant
Parties: Cisilia Oktavia Lim — Reins International (Singapore) Pte. Ltd.

Contract – Termination

Employment Law – Contract of service – Termination with notice – Whether wrongful dismissal under s 14(2) Employment Act – Whether Tripartite Guidelines apply

30 September 2024

Judgment Reserved

District Judge Teo Guan Siew:

1       This is an employment dispute involving an allegation of wrongful dismissal. It involves a consideration of the applicability, and the application of the Tripartite Guidelines issued by the Ministry of Manpower on wrongful dismissal.

Factual Background

2       The defendant operates a chain of restaurants under the “Gyu-Kaku” brand.

3       The defendant employed the claimant as a management trainee in October 2008 on a two-year contract. Thereafter, the claimant was promoted to be a supervisor in November 2010, and subsequently Assistant Restaurant Manager in January 2013 and Acting Restaurant Manager in July 2017. However, on 27 April 2018, the defendant issued a letter to the claimant demoting her to Assistant Restaurant Manager (“the Letter of Demotion”).[note: 1]

4       More than a year later, the defendant again promoted the claimant, this time to the position of Restaurant Manager. The letter of promotion dated 23 September 2019 stated that the claimant would be required to undergo a probation period of six months.[note: 2] After the probation period, on 27 March 2020, the defendant provided the claimant with a letter of appointment as the Restaurant Manager (“the 27 March 2020 Letter”).[note: 3] The 27 March 2020 Letter set out the terms and conditions of the employment, including on matters such as salary, working hours, annual leave and termination. The claimant signed the 27 March 2020 Letter to accept its terms, and also acknowledged therein that she had read through and understood the terms and conditions in an Employee Handbook.

5       On 21 September 2020, the defendant issued a letter to the claimant titled “1st Warning Letter” which stated as follows (“the 1st Warning Letter”):[note: 4]

Based on our discussion, we have confirmed your hands-off approach and lack of responsibility in handling staff issues at the outlet, thus resulting in the loss of manpower due to low morale at the outlet you are responsible for, and dereliction of your duty as an outlet manager.

Due to your neglect of your duty as stated above, the company expects you to address this immediately and corrective action to be taken for this matter. Failure to comply, the Company will not hesitate to take further action, including termination, should there be any future occurrence of any similar offence.

6       The claimant signed at the bottom of the 1st Warning Letter where it was stated that she acknowledged receipt of the letter and accepted the contents therein.

7       As the claimant is a foreigner, she required a work pass issued by the Ministry of Manpower (“MOM”) in order to work in Singapore. The defendant renewed her work pass several times in the course of her employment. The latest renewal was in March 2021. In a declaration form dated 18 March 2021 which was submitted as part of the renewal application,[note: 5] the defendant stated the claimant’s occupation as Assistant Restaurant Manager. According to the defendant, this was an inadvertent clerical error as the claimant was already the Restaurant Manager by then.[note: 6] Following the renewal application, MOM issued a letter dated 7 April 2021 to the claimant presenting her with the new work pass card which was valid from 18 March 2021 till 16 April 2024 (“the MOM Work Pass Letter”).[note: 7]

8       The defendant eventually decided to terminate the employment of the claimant before the expiry of the claimant’s work pass. In a letter dated 15 September 2022 addressed to the claimant (“the Termination Letter”),[note: 8] the defendant’s Managing Director Mr Hinooka Yukihiko (“Mr Yuki”) on behalf of the defendant stated:

RE: TERMINATION WITH NOTICE IN LIEU

Dear Ms Cisilia Oktavia Lim,

We regret to inform you that we terminate your employment service after deeply [sic] consideration of your working performance.

We hereby will inform you that your last day will be on 14 October 2022, due to there is an outstanding 25 days of Annual Leave unclear [sic], we will use the remaining 22 days Annual Leave to clear your remaining notice thus after the deduction of Annual Leave your last day is 15 September 2022. The company will give you back encashment of the remaining 3 days Annual Leave.

Parties’ Pleaded Cases

9       The claimant pleads that the defendant’s issuance of the Termination Letter to her constituted a wrongful dismissal, because it was a summary dismissal without basis or justification, without reasons, and without the conducting of an inquiry to give her the opportunity to address any allegations of work performance issues.[note: 9] She also pleads that the dismissal was wrongful because the defendant did not give her any warning letter since the start of her new work pass period (ie from 18 March 2021 onwards),[note: 10] and that the 1st Warning Letter issued earlier in September 2020 was invalid.[note: 11] According to the claimant, there was a valid employment contract between parties till 16 April 2024 (ie the expiry date of her latest work pass), and that the defendant had committed a repudiatory breach of the contract by wrongfully dismissing her on 15 September 2022.[note: 12]

10     In addition to damages for wrongful dismissal, the claimant further seeks payment for 25 days of annual paid leave[note: 13] and alleged salary arrears for the one-month period from 15 September 2022 to 14 October 2022.[note: 14] The claimant originally had another claim for alleged outstanding overtime pay, but she subsequently withdrew it before trial commenced.[note: 15]

11     The Defence, on the other hand, is that the claimant was provided with a valid notice of termination in the form of the Termination Letter, in accordance with the employment contract and in compliance with s 10(1) of the Employment Act 1968 (“the Employment Act”).[note: 16] The defendant further pleads that there was just and sufficient cause to terminate the claimant due to her unsatisfactory work performance over a period of time.[note: 17]

12     In relation to annual leave, the defendant’s case is that the claimant agreed, at a meeting on 15 September 2022 with the defendant’s Mr Yuki and Human Resource Executive Ms Clara Loh (“Ms Clara”), that the claimant would utilise 22 days out of her remaining annual leave of 25 days to serve her one month’s notice period, and for the balance three days of leave to be encashed.[note: 18] This was captured accordingly in the Termination Letter, which the claimant signed. The Defence is that a sum equivalent to three days of annual leave was paid to the claimant.[note: 19] Further, the defendant pleads that the claimant was paid her salary for the month of September 2022 as well as for the period from 1 October to 14 October 2022, and as such, there were no outstanding salary arrears.[note: 20]

Analysis

13     Before considering whether there was wrongful dismissal, a preliminary issue is what constituted the contract of employment, as this is a point of dispute between parties.

What constituted the employment contract between parties?

14     The defendant’s position is that the 27 March 2020 Letter, together with the Employee Handbook referred to therein, constituted the contract of employment between parties at the material time until the defendant decided to terminate the employment relationship on 15 September 2022. On the other hand, the claimant’s counsel asserts in written submissions that the relevant contract of service was not the 27 March 2020 Letter and instead was evidenced by the MOM Work Pass Letter.[note: 21] According to this argument, this means that the period of the contract between parties at the material time was in fact from 18 March 2021 (the date of issuance of the latest work pass) to 16 April 2024 (when that work pass would expire). More generally, the claimant’s counsel submits that each time the defendant renewed the work pass for the claimant, there came into being a fresh contract of service for the validity period of that relevant work pass.[note: 22]

15     I do not agree with the arguments by the claimant’s counsel. The MOM Work Pass Letter is self-evidently just a letter from the authority presenting the work pass to the claimant. It is not, and cannot amount to evidence of, an agreement between the claimant and the defendant. The MOM Work Pass Letter does not contain any terms and conditions of the employment. It is not possible to imply or infer any employment terms from the letter.

16     The 27 March 2020 Letter was entitled a “Letter of Employment” and set out the detailed terms and conditions, covering issues of salary, work location, working hours, annual leave, duties, and termination and notice. Given that the law on employment can be said to be partly contractual and partly statutory, it is instructive to examine what MOM regards as an employment contract. MOM states on its website that a contract of service “defines the employer-employee relationship, including the terms and conditions of employment”, and “must include key employment terms and essential clauses, such as hours of work and job scope”.[note: 23] Such key employment terms include basic salary, fixed allowances, overtime pay, and type of leave.[note: 24] All such key employment terms were provided for in the 27 March 2020 Letter, which was signed by both parties. Notably, the 27 March 2020 Letter did not specify any fixed duration for the period of employment. There is no evidence before the Court of any further document after the 27 March 2020 Letter which sought to govern the employment relationship between the parties.

17     My view is therefore that the 27 March 2020 Letter (together with the Employee Handbook)[note: 25] continued to be the operative contractual document that governed the parties’ employment relationship at the material time of the defendant’s decision to terminate the employment contract.

Wrongful Dismissal

Common law on contracts

18     Clause 7 in the 27 March 2020 Letter contains the contractual terms pertaining to termination and giving of notice. Clause 7.2, which applies after the probation period of six months, provides as follows:

Termination of the contract of service between the Company and the Employee can be initiated by either the Company or the Employee. Such notice must be in writing. The period of notice shall be a minimum of one (1) month or one (1) month’s salary in lieu of notice.

19     In addition, clause 7.3 states that “[t]he company reserved the right not to give any reasons for termination of employment contract”.

20     In the Employment Handbook, it is similarly provided under clause 19.1 that either party can terminate the contract by giving notice in accordance with the letter of employment or with at least one month’s notice, as follows:

19.1 Termination with Prior Notice

The Company recognises that either the Company or an Employee may on its/his/her own volition and for various reasons wish to end the employment relationship. As such, either the Company or an Employee shall be at liberty to terminate an Employee’s contract of service with the Company in accordance with the termination provisions set out in the Letter of Employment.

Where the Letter of Employment does not contain any provisions for termination, his/her contract of service may be terminated by either the Company or an Employee giving at least one (1) month prior notice to the other party or payment to the other party of a sum equivalent to one (1) month’s salary in lieu of notice …

21     It should be noted that s 10 of the Employment Act contains certain requirements pertaining to termination of employment contracts:

Notice of termination of contract

10.–(1)    Either party to a contract of service may at any time give to the other party notice of the firstmentioned party’s intention to terminate the contract of service.

(2)    The length of the notice must be the same for both employer and employee and is to be determined by any provision made for the notice in the terms of the contract of service, or in the absence of such provision, must be in accordance with subsection (3).

(3)    The notice to terminate the service of a person who is employed under a contract of service must be at least –

…

(c)    2 weeks’ notice if the person has been so employed for 2 years or more but less than 5 years; and

(d)    4 weeks’ notice if the person has been so employed for 5 years or more.

22     The contractual provisions on termination of contract in the 27 March 2020 Letter and the Employment Handbook comply with s 10. In particular, the length of the notice period is the same for both the claimant as employee and the defendant as employer (in compliance with s 10(2)) and is at least one month (in accordance with s 10(3)).

23     In the Termination Letter, it was stated that the claimant’s last day of employment would be on 14 October 2022. Given that the letter was issued to the claimant on 15 September 2022, this clearly constituted the giving of one month’s notice, in accordance with clause 7.2 of the 27 March 2020 Letter and clause 19.1 of the Employee Handbook. Even though the claimant did not have to work from 15 September 2022 onwards, this was only because of the utilisation of her unconsumed annual leave for the one month notice period. I will return to this point later as the claimant also disputes the issue of her annual leave.

24     Given that the termination of the contract by the defendant was in accordance with the notice requirement under the contract, it is unclear what the basis of the claimant’s assertion of wrongful dismissal is. The statement of claim alleges that there was summary dismissal, but that is obviously not the case as notice of termination was given. As for the pleading that the dismissal was “without basis”, “without justification”, “without reasons in writing” and “without giving any prior warning letter”, it is equally unclear how these constituted breaches of the employment contract so as to entitle the claimant to damages for wrongful dismissal. It must be borne in mind that the employment contract expressly provides that either the claimant or defendant can terminate by giving notice, and there is no requirement to give reasons or for there to be a warning letter preceding the termination.

25     It is only at trial and in closing submissions that the claimant’s counsel has referred to the Tripartite Guidelines on Wrongful Dismissal (“the Tripartite Guidelines”) issued by the Minister under s 35 of the Employments Claims Act 2016 (“the Employment Claims Act”), and to that extent, appears to be grounding the claimant’s cause of action under the Employment Act, specifically s 14(2).

Dismissal “without just cause or excuse”

(1)   Applicability of s 14(2) Employment Act to present case

26     Under s 35 of the Employment Claims Act, the Tripartite Guidelines are issued by the Minister for the purposes of s 20(7) and s 25(4) of the same Act. Section 20(7) pertains to wrongful dismissal disputes brought before the Employment Claims Tribunal (constituted under s 4 of the State Courts Act 1970) (“the ECT”), whereas s 25(4) deals with appeals against orders made by the ECT to the General Division of the High Court. “Wrongful dismissal disputes”, in turn, is defined under the Third Schedule of the Employment Claims Act to mean disputes in relation to which an employee may lodge a claim mentioned in s 14(2) of the Employment Act over whether the employee has been dismissed without just cause or excuse by the employer.

27     Section 14(2) of the Employment Act provides that an employee who considers that he or she has been dismissed “without just cause or excuse” may lodge a claim under s 13 of the Employment Claims Act for reinstatement or compensation, which would be heard by the ECT. The present proceedings are brought before the Magistrate’s Court, as the initial claim amount in the Statement of Claim (before the dropping of the claim for overtime pay) exceeded the jurisdictional limit of the ECT. However, s 14(2) expressly refers to such claims for dismissals “without just cause or excuse” being brought before the ECT. As such, it is not immediately clear whether s 14(2), and the associated Tripartite Guidelines issued for interpretating what constitutes wrongful dismissal, are applicable to the present dispute.

28     In Longitude 101 Pte Ltd v Navinea Kanapathy Pillai [2024] SGDC 47, the District Court considered the Tripartite Guidelines in determining whether there was sufficient cause for dismissal of pregnant employees under s 84(1)(b) of the Employment Act. In the District Court’s view, there was no reason why the courts should not take the guidelines into account as otherwise it could mean the adoption of different rules by the courts and the ECT. Indeed, it would appear to be a strange position at law if such guidelines issued by the MOM applied only to claims below $20,000 (being the jurisdictional limit of the ECT) and not those above.

29     Also, although no specific arguments were canvassed, both parties proceeded on the basis that the Tripartite Guidelines applied to the present case in determining whether there was wrongful dismissal.

30     Accordingly, I shall proceed to examine the case on the basis that action can be brought for wrongful dismissal before this Court based on similar principles of whether dismissal was without just cause or excuse under s 14(2) of the Employment Act, as interpreted with the Tripartite Guidelines in mind.

(2)   Whether “dismissal without just cause or excuse” has been established

31     I reproduce below the parts of the Tripartite Guidelines dealing with the situation where the dismissal is for misconduct or poor performance:

(II) Circumstances where misconduct or poor performance are cited

4.    Where misconduct or poor performance is cited as the reason for dismissal, the employer bears the burden of proving that ground for dismissal. The dismissal is considered wrongful if the employer is unable to do so. (“Guideline 4”)

Misconduct

5.    Misconduct is the only legitimate reason for dismissal without notice. An employer may, after due inquiry, dismiss an employee without notice for misconduct. Misconduct includes but is not limited to theft, dishonest or disorderly conduct at work, insubordination, and bringing the organisation into disrepute. (“Guideline 5”)

Poor Performance

6.    In a case of poor performance, an employer cannot dismiss without notice. The employer would need to substantiate if poor performance is cited as the reason for dismissal with notice. (“Guideline 6”)

32     It should first be appreciated that Guideline 5 on dismissal without notice for misconduct does not apply in the present case because as explained above, the claimant was given one month’s notice of termination, and the defendant also did not refer to any misconduct by the claimant in terminating her employment.

33     The Termination Letter stated that the defendant was terminating the claimant's employment after consideration of her work performance. As such, Guideline 6, dealing with dismissal on the basis of poor performance, is relevant. Under Guideline 6, the dismissal must be with notice, and the employer needs to substantiate if poor performance is relied on as reason for the dismissal. However, unlike Guideline 5 for dismissal on basis of misconduct, there is no reference to the holding of an inquiry before the employer can dismiss the employee for poor performance.

34     Illustration 2 in the Tripartite Guidelines illustrates the application of Guideline 6. As extensive reliance was placed by the claimant’s counsel on Illustration 2, I reproduce it below:

B was employed as a warehouse assistant. She was involved in multiple incidents that resulted in poor quality services provided by the warehouse. Her supervisor documented these shortcomings in the performance reviews. Despite this, her performance did not improve. The employer dismissed B with notice and stated that this was because of B’s poor work performance.

This dismissal was not wrongful. There was documented proof of B’s poor performance and the employer rightly exercised his right to terminate (with notice) the employment.

If, on the other hand, the employer terminated the contract without notice, the dismissal would have been wrongful because it is not clear that B’s performance was so poor as to amount to misconduct. Furthermore, the employer had not conducted a proper inquiry and given B a chance to be heard.

35     Illustration 2 suggests that in terms of substantiating the poor work performance, that could be done by the employer documenting the shortcomings such that there is documentary proof of the poor performance.

36     Under Guideline 4, the employer bears the burden of proving the employee’s poor performance as the ground for dismissal. The defendant relies on the following to substantiate the claimant’s poor work performance:

(a)     The Letter of Demotion;

(b)     The 1st Warning Letter;

(c)     An incident involving the repair of the defendant’s computer (“the Computer Incident”); and

(d)     An incident of negative customer feedback (“the Customer Complaint”).

(A)   The Letter of Demotion

37     The Letter of Demotion was issued to demote the claimant from Acting Restaurant Manager to Assistant Restaurant Manager back in April 2018, almost two years before the applicable employment contract in the form of the 27 March 2020 Letter was issued to the claimant. Within that period, the defendant had also chosen to promote the claimant to a full Restaurant Manager on 23 September 2019. In my view, given the passage of time and how the claimant had subsequently recognised the improvement in the claimant’s work performance in promoting her, the Letter of Demotion can no longer be relied upon as a basis for justifying any poor work performance for the purpose of terminating her employment.

(B)   The 1st Warning Letter

38     The defendant’s Managing Director, Mr Yuki, testified that the basis for issuing this warning letter was the departure of five part-time staff members who at their exit interviews had indicated that they were leaving because they had issues working with the claimant.[note: 26] This is consistent with the reference in the 1st Warning Letter to the claimant’s hands-off approach and lack of responsibility in handling staff issues which led to low morale and loss of manpower. In contrast, the claimant’s explanation, that this letter was issued because of the problems with an elderly kitchen staff,[note: 27] does not cohere with the reference to loss of manpower; and in any event as the Restaurant Manager at that material time, any issues faced by a kitchen staff would have been within the claimant’s responsibility.

39     The claimant also signed on the 1st Warning letter indicating her acceptance of the contents. While this does not mean she necessarily agreed with the employer’s evaluation of her performance, this was an acknowledgement on her part of her employer’s view of her poor work performance and she was put on notice of possible further action like termination if she did not address the issue highlighted.

40     The claimant’s counsel makes various arguments for why the defendant is not entitled to rely on the 1st Warning Letter as substantiation of the claimant’s poor work performance in order to dismiss her. First, he argues that the claimant was subsequently promoted such that the effect of the 1st Warning Letter had effectively been extinguished. This argument is not sustainable, because it has not been established that there was a promotion after the 1st Warning Letter. At the time of the 1st Warning Letter on 21 September 2020, the claimant was already a full Restaurant Manager, having been promoted to that position since September 2019. Even though the declaration form submitted for her work pass renewal on 18 March 2021 reflected her position as Assistant Restaurant Manager, the defendant has explained that this was a clerical error. This is consistent with how there is no documentary evidence before the Court of the claimant having ever been demoted from her position of Restaurant Manager; indeed, the claimant has not taken such a position or adduced evidence to that effect. Second, the claimant’s counsel contends that the 1st Warning Letter is “water under the bridge” because the defendant chose to subsequently renew the claimant’s work pass. I have already explained above that I disagree with claimant’s counsel’ submission that a new contract came into being with the issuance of each successive work pass by MOM. Also, a renewal of her work pass is not necessarily reflective that her work performance has improved: it can simply mean that her performance did not become so unsatisfactory as to warrant ending the employment relationship.

41     In my view, the 1st Warning Letter is a written record of an instance of the defendant’s negative assessment of the claimant’s work performance and can be considered as part of the defendant’s substantiation of the claimant’s poor work performance.

(C)   The Computer Incident

42     The defendant also relies on an incident where the claimant had gone ahead to get a vendor to conduct certain repairs to the restaurant’s computer. According to the defendant, the claimant did this without first seeking the approval of Mr Yuki, contrary to Mr Yuki’s instructions to all the defendant’s employees that they had to first obtain his approval or consent before proceeding with any such repairs.

43     The relevant phone messages exchanged between the claimant and Mr Yuki in a group chat (together with other officers of the defendant including a Mr Yuta) during the material time of the Computer Incident are reproduced below:[note: 28]

Message from Claimant

30 July 2022 at 15:05

Dear Yuta san

Cc Yuki san

UE outlook have error again today. We unable to receive any emails today. Had contacted Darren from Sakura & he said there is extra charge for him to check into our PC today.

Would like to seek approval for this. Kindly advice.

Thank u.

Message from Mr Yuki

30 July 2022 at 15:33

@Cisilia A0021

@Yuta (Singapore)

I received invoice from SAKURA now. It’s very expensive. Cos it’s weekend today.

Of course, we should do the necessary repairs, but are you ordering with an understanding of the contract?

Do you know any special weekend rates?

Who approved this high payment?

Darren came to UE last time, but same trouble happened again, right?

We can negotiate with SAKURA boss.

Cos same trouble.

We can insist warranty period.

But ordered and done repair.

I can’t say anything from now.

Thank you.

Message from Claimant

30 July 2022 at 15:53

Dear Yuki san

Apologies for the misunderstanding in between.

I just checking with him about the same issue happen.

I not aware that its already count as charged.

My deeply apologies.

Will learn from this mistake.

Thank you.



44     As can be seen from Mr Yuki’s message above, he was concerned with the expensive weekend rate for the repair after receiving the invoice from the vendor, Sakura. He further referred to how they could have negotiated with the vendor on the rate or to have the repair covered under the warranty.

45     Counsel for the claimant made many arguments in relation to the Computer Incident, such as how the repair was necessary in order for the operations of the restaurant to continue, the fact that Sakura was the defendant’s authorized vendor, and how it should be Mr Yuki’s and not the claimant’s responsibility to negotiate with the vendor in relation to the rates and the warranty issues. These arguments, however, miss the point. This is because the issue was not about whether the repair was necessary, or whether the claimant had gone to a wrong vendor or failed to negotiate for a better rate. Instead, the defendant’s complaint was that the claimant failed to first obtain the express approval of the Managing Director before such repairs were undertaken, as was required by the company’s policy.

46     In this connection, the claimant’s counsel’s argument that Mr Yuki’s statement that “[o]f course, we should do the necessary repairs” show that he had given consent or approval, is misconceived. Read in the context of the entire message, it is clear that Mr Yuki was saying that although repairs needed to be done, the ordering of the repairs should not have been done without approval. This explains why he asked “[w]ho approved the high payment” and why he questioned whether the claimant was “ordering with an understanding of the contract”. I should add that the claimant’s position that the repair was carried out only after Mr Yuki’s message at 15:33hrs is also at odds with the contents of the message. In particular, Mr Yuki, after setting out his unhappiness with the expensive weekend rate and how approval for it was not obtained, then said “[b]ut ordered and done repair” and that he therefore “can’t say anything from now”. This clearly indicates that the vendor had already carried out the repair by then.

47     In any event, the point is not so much about when the repair was actually done, but rather that the act of ordering the repair and incurring the costs of such repair was done by the claimant without Mr Yuki’s approval. Indeed, the subsequent message from the claimant at 15:53hrs suggests that she herself appreciated that she had made the mistake of incurring the charges for the repair without having first obtained approval for it to be carried out.

48     The claimant’s counsel also challenged the defendant’s reliance on the Computer Incident on the basis that this episode was not separately documented as an instance of poor work performance, and that no warning was given to the claimant. However, it must be borne in mind that the requirement under Guideline 6 is one of substantiation, ie the employer must be able to provide some justification for taking the position that the employee’s performance was poor. The reference to documentation is only found in the Illustration to the Guideline. In other words, documenting the shortcomings is just one way an employer can discharge that burden of substantiating the basis for dismissal on the ground of poor performance; documentation and issuing a warning are not prescribed requirements under Guideline 6.

49     In my view, the evidence of Mr Yuki and the phone messages on the Computer Incident show that this was one instance of unsatisfactory work performance which can be taken into account by the defendant in their assessment of whether to dismiss the claimant.

(D)   The Customer Complaint

50     Finally, the defendant also relies on a customer complaint as a further example of the claimant’s poor work performance. In an email dated 2 June 2022, the customer complained that the service standard of the restaurant had dropped during his recent visit, particularly as regards the poor attitude of the serving staff and the long waiting times to place orders and for the food to arrive.[note: 29] The claimant subsequently put up an email report addressed to Mr Yuki in relation to the complaint, explaining why the generation of the QR code for ordering took time and how the customer had tried to place orders after the restaurant’s last order timing of 9.30pm.[note: 30]

51     The claimant’s counsel submits that this cannot be treated as an instance of poor performance by the claimant, because it was the customer who was unreasonable in wanting to place orders after the last order timing, and Mr Yuki did not conduct any fact finding of his own, such as by interviewing the staff concerned or to follow up with the complaining customer. However, Mr Yuki’s position was that what he took issue with was not so much the alleged bad service that evening per se, but rather that, in his view, the claimant did not sufficiently deal with the issue and address the concern of service standards dropping at the restaurant. In particular, he did not find the claimant’s email report satisfactory, because she only dealt with matters concerning the time taken for the customer’s ordering process and the fact that he wanted to put in an order after the last-order timing, but not the actual issue of service quality and specifically the unwelcoming or unfriendly attitude of the staff.[note: 31]

52     I note that the length of time taken for the QR code to be generated for orders to be placed was specifically highlighted by the complaining customer, and his displeasure with poor service attitude did also include the manner in which the service staff had informed him about the last order timing. To this extent, the claimant’s explanation in her email on these two specific matters can be said to be relevant and to pertain to the reasons behind why the customer might have perceived the service as poor. It is therefore arguable that that the claimant in her email report was seeking to address the issue of service standards, albeit it might not have been to the standard or level of detail that the defendant expected.

53     In this connection, it may be queried whether the court should engage in a detailed examination of the underlying merits of an employer’s assessment of the employee’s work performance and to substitute the court’s own view. At the end of the day, Guideline 6 of the Tripartite Guidelines states that the employer must be able to substantiate that there was poor work performance. In other words, there must be basis or justification for the employer to form such a view on poor performance. In my view, considered together, the 1st Warning Letter, the Computer Incident, and the Customer Complaint do afford the defendant with sufficient basis and constitute substantiation of the claimant’s poor performance. In respect of the claimant’s counsel’s arguments that the defendant had failed to conduct any inquiry in relation to the Computer Incident and the Customer Complaint, as I have mentioned earlier, there is no requirement to hold an inquiry under Guideline 6 where dismissal is with notice for poor performance. An inquiry needs to be held only if dismissal is without notice and for misconduct, as provided for under Guideline 5 which is not applicable in the present case.

54     Accordingly, in my judgment, the claimant has not established that she was wrongfully dismissed with reference to Guideline 6 of the Tripartite Guidelines.

55     In reaching this conclusion that there was no wrongful dismissal, it is pertinent for me to further point out that in fact, two other Guidelines in the Tripartite Guidelines appear to be more relevant for this case. These two Guidelines are Guideline 7, which apply to circumstances where the right to contractually terminate is invoked, and Guideline 9, which apply to circumstances where dismissal with notice is wrongful.

56     Guideline 7 states as follows:

(III) Circumstances where the right to contractually terminate is invoked

7.    As both employee and employer have a right to contractually terminate employment with notice, dismissals with notice are presumed not to be wrongful.

57     Guideline 9 states as follows:

(IV) Circumstances where dismissal with notice is wrongful

9.    To succeed in claiming that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal. Wrongful reasons include discrimination, deprivation of benefit, or to punish an employee for exercising his employment right. If an employer gives a reason for dismissal with notice, but the reason given is proven to be false, the dismissal would also be wrongful.

58     As I have explained above, the present case is one where the employer exercised its contractual right to terminate with notice, because the Termination Letter gave the claimant a month’s notice of termination in accordance with the contract of employment in the form of the 27 March 2020 Letter and the Employee Handbook. As such, Guideline 7 clearly applies, and it is curious that neither party has referred to it. Under Guideline 7, there would in fact be a presumption that the dismissal with notice of the claimant was not wrongful; and under Guideline 9, in such cases of dismissal with notice, it is for the employee instead to substantiate a wrongful reason for the dismissal. Similar to Guideline 7, neither party has relied on Guideline 9 in their respective cases, except that the claimant’s counsel did refer to it in the claimant’s reply submissions.[note: 32] Wrongful reasons under Guideline 9 can include discrimination, deprivation of benefit, or punishment for exercising one’s employment right. Such wrongful reasons have evidently not been established in the present case. In this regard, I disagree with the claimant’s counsel’s assertion that the defendant discriminated or was biased against the claimant simply because of the Customer Complaint. As highlighted above, the defendant essentially regarded the claimant’s performance as unsatisfactory in not sufficiently addressing the issue of poor service standards as perceived by the customer. There is no basis to say that this somehow amounted to any kind of discriminatory treatment of the claimant. Equally, as I will come to below, there is no basis for saying that the defendant deprived the claimant of her benefit in terms of annual leave.

59     A consideration of specifically Guidelines 7 and 9 reinforces my view that there was no wrongful dismissal within the meaning in the Tripartite Guidelines.

60     For the above reasons, I find that the claimant has not established any breach of the employment contract by the defendant which would entitle her to damages at common law, nor has she shown that there was wrongful dismissal without just cause or excuse within the meaning in s 14(2) of the Employment Act.

Alleged salary arrears and annual leave claims

61     The claim for alleged salary arrears for the one-month period from 15 September 2022 to 14 October 2022 is clearly unsustainable. It cannot be disputed that the claimant was paid her salary for the full month of September 2022. The defendant has produced the September payslip,[note: 33] as well as documentary proof of payment in the form of the defendant’s bank transfer history that showed a transfer of $4,050 to the claimant on 29 September 2022.[note: 34] Similarly, there was an October payslip,[note: 35] and the defendant’s bank transfer history showed a transfer of $1,805.67,[note: 36] which comprised her salary for 1 to 14 October 2022 and the three days of annual leave that was encashed. When the claimant was shown these documentary records at trial, she accepted under cross examination that she was indeed paid these sums of money by the defendant.

62     The actual complaint by the claimant at trial is that she would have preferred to work instead of using her annual leave days for the one month notice period. However, that was not what the parties agreed at the material time. The Letter of Termination, which clearly set out that the 22 days of leave was to be used to clear the one month notice period, was signed by both Mr Yuki and the claimant. The evidence from both Mr Yuki[note: 37] and Ms Clara[note: 38] was that the claimant did not raise any objections on this manner of using her leave days. Indeed, it was the claimant’s own evidence at trial that she did not raise any issues with the calculation and utilisation of her remaining annual leave. Her explanation, that she did raise any issues because she thought it would not have made a difference, is besides the point. By choosing not to object and by signing the Termination Letter, the claimant had agreed to using the 22 days of annual leave to serve her notice period and encashing the remaining three days. In fact, it is not even clear from the employment contract that she is entitled to insist on encashment of her outstanding leave days.

63     It follows from the above that there is no payment outstanding in respect of annual leave, nor any issue of deprivation of employee benefits, since all the claimant’s remaining leave days as of the date of termination were either consumed or encashed.

Conclusion

64     For the foregoing reasons, I dismiss the claimant’s claims.

65     Costs and disbursements are to be fixed by this Court if not agreed upon. The parties are to file and exchange their respective written submissions (limited to ten pages) on costs and disbursements within seven days hereof, if required.

[note: 1]ABOD Vol 1, p 23.

[note: 2]ABOD Vol 1, p 41.

[note: 3]ABOD Vol 1, p 49.

[note: 4]ABOD Vol 1, p 63.

[note: 5]ABOD Vol 1, pp 70-73.

[note: 6]Defence (Amendment No. 1) at para 124.

[note: 7]ABOD Vol 1, p 75.

[note: 8]ABOD Vol 1, p 140.

[note: 9]Statement of Claim (Amendment No. 1) at para 22(1)-(3), (5).

[note: 10]Statement of Claim (Amendment No. 1) at para 22(4).

[note: 11]Statement of Claim (Amendment No. 1) at para 22A.

[note: 12]Statement of Claim (Amendment No. 1) at para 22A(6).

[note: 13]Statement of Claim (Amendment No. 1) at paras 14-17.

[note: 14]Statement of Claim (Amendment No. 1) at paras 18-19.

[note: 15]BA 35 at para 40.

[note: 16]Defence (Amendment No. 1) at para 68(c) and para 71.

[note: 17]Defence (Amendment No. 1) at para 104.

[note: 18]Defence (Amendment No. 1) at para 68(a)-(d).

[note: 19]Defence (Amendment No. 1) at para 68(e).

[note: 20]Defence (Amendment No. 1) at paras 68(f) and 69.

[note: 21]Claimant’s Closing Submissions at [6].

[note: 22]Claimant’s Closing Submissions at [8].

[note: 23]Defendant’s Bundle of Authorities for Reply Submissions, at p 196.

[note: 24]Defendant’s Bundle of Authorities for Reply Submissions, at p 201.

[note: 25]The latest version of the Employee Handbook dated 29 July 2020: ABOD Vol 2 at p 1-23.

[note: 26]BA 8, at [29].

[note: 27]BA 25 at [36(12)].

[note: 28]ABOD Vol 1, p 127-130.

[note: 29]ABOD Vol 1, p 102.

[note: 30]ABOD Vol 1, p 103.

[note: 31]BA 166-167, at [40]-[42]. NE 3 July 2024 at p 42 (lines 16 to 24).

[note: 32]Claimant’s Reply Submissions at p 4.

[note: 33]ABOD Vol 1, p 136.

[note: 34]ABOD Vol 1, p 141.

[note: 35]ABOD Vol 1, p 142.

[note: 36]ABOD Vol 1, p 143.

[note: 37]BA 172-173 at [62]-[63]; NE 3 July 2024 at p 68 (lines 1 to 12).

[note: 38]BA 306-307 at [14].

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Lim Sheng Long v Bui Thi Thanh Huyen
[2024] SGDC 249

Case Number:Originating Claim No 74 of 2023
Decision Date:19 September 2024
Tribunal/Court:District Court
Coram: Sia Aik Kor
Counsel Name(s): Lum Jing Wen Crystal and Mohamed Baiross (I.R.B. Law LLP) for the Claimant; Au-Yong Kok Keong Kenneth and Chan Yuen Ling (Ramdas & Wong) for the Defendant.
Parties: Lim Sheng Long — Bui Thi Thanh Huyen

Gifts – Inter vivos – Whether money transferred were loans or gifts

19 September 2024

Judgment reserved.

District Judge Sia Aik Kor:

Introduction

1       This is the Claimant’s claim against the Defendant for a sum of $266,897, being $274,397 being loans made to the Defendant pursuant to her requests between 2015 and 2018 less repayments of $7,500[note: 1]. Due to the jurisdictional limit of the District Court, the Claimant is capping his claim at $250,000. The Defendant admits to receiving the sum of $209,897 but claims that the monies given to her were gifts.

The Claimant’s case

2       According to the Claimant, the Defendant was his wife’s friend and he was her landlord between 2012 to 2015 at 173 Yishun Avenue 7 #XXX. He began a romantic relationship with the Defendant in or around October 2014. While they were in a relationship, the Defendant frequently informed the Claimant that she was heavily in debt and was in constant urgent need of money. It is undisputed that over 2015 to 2018, the Claimant transferred various sums of money to the Defendant. The Claimant claimed that these were loans which the Defendant had promised to return within 6 months to a year[note: 2]. While the Claimant does not have contemporaneous documents indicating that the sums transferred were in the nature of loans, he is relying on IOUs signed by the Defendant as well as WhatsApp text messages and audio recordings between them where the Defendant had used the words “borrow” and “return”. According to the Claimant, the Defendant repaid the sum of $1,000 to the Claimant at the end of 2015 and the sum of $2,500 at the end of 2016[note: 3].

The Defendant’s case

3       The Defendant’s case is that the various transfers were gifts as they were in a relationship. She took the transfers as a sign of his love and affection and his intention to help her as she was struggling financially[note: 4]. When the sums were given to her, the Claimant did not mention that they were “loans” or how much she would have to pay and when and he was aware that she had no means to repay him[note: 5]. However, the Claimant was controlling and abusive and the Defendant tried to break up with the Claimant which resulted in what has been described as an “on-off” relationship between 2016 and 2018. It was during this period that the Claimant claimed that the monies he had given her were loans but he would not ask her to return the money as long as she stayed in a relationship with him[note: 6]. The Claimant would force her to sign IOUs and she would make repayments but the IOUs would be torn up when they resumed their relationship and he would continue to give her gifts of cash[note: 7]. The text messages and audio recordings were therefore to be viewed in that context.

Issues to be determined

4       Two issues arise in this case:

(a)     the quantum of the transfers made by the Claimant to the Defendant; and

(b)     whether the transfers were in the nature of loans or gifts.

Issue 1: Quantum of Transfers

5       The series of transfers made comprising the claimed sum are as follows:

S/N

Date of Transfer

Mode of Transfer

Reason for Transfer

Amount

Did Defendant admit to receiving these sums in her AEIC at [46]?

1.

2015

—

—

$46,897

Yes

2.

7 March 2016

Cash

Loan for Defendant to repay loans sharks[note: 8]

$10,000

No

3.

25 March 2016

Cash

Defendant did not give Claimant any good reason[note: 9]

$4,000

No

4.

2 April 2016

Cheque

For Defendant to repay her employer at Bavaria, Keran[note: 10]

$41,000

Yes

5.

19 April 2016

Cheque

For Defendant to repair her house in Vietnam which was burned down by fire[note: 11]

$68,000

Yes

6.

April – July 2016

Cash

For Defendant to repay loan sharks[note: 12]

$3,000

No

7.

25 July 2016

Cheque

For Defendant to repay loan sharks[note: 13]

$16,000

Yes

8.

End of 2016

Cash

For Defendant to repay loan shark from Ang Mo Kio (“AMK”) Coffee Shop Blk 711[note: 14]

$5,000

No

9.

End of 2016

Cash

For the medical bills of the Defendant’s father in Vietnam[note: 15]

$3,000

No

10.

End of 2016

Cash

For Defendant to repay debt owed in relation to AMK Coffee Shop Blk 711[note: 16]

$5,000

No

11.

End of 2016

Cash

For Defendant to repay another debt to loan sharks[note: 17]

$6,000

No

12.

End of 2016

Cash

For Defendant to repay another[note: 18] debt to M1 for her bills

$5,000

No

13.

January 2017

Cash

For the Defendant’s brother’s alleged legal representation in Vietnam[note: 19]

$5,000

No

14.

13 January 2017

Cheque

For the Defendant’s brother’s legal representation as he is involved in a murder case in Vietnam[note: 20]

$21,000

Yes

15.

1 March 2017

Cash

For Defendant’s sister-in-law and her child who had come to Singapore for holiday but had insufficient monies[note: 21]

$3,000

No. However there is evidence from the Defendant admitting in the audio recording of 17 April 2017[note: 22] that she had taken $3,000 in February or March 2017.

16.

8 July 2017

Cash

For the Defendant to repay loan sharks who were hounding her[note: 23]

$6,000

No

17.

15 August 2017

—

For the Defendant to have spare cash or savings in her own bank account[note: 24]

$3,000

Yes

18.

1 September 2017

—

For the Defendant to return home to Vietnam for surgery/treatment of her vaginal infection[note: 25]

$3,000

Yes

19.

14 March 2018

Cash

For the Defendant to rent a coffee shop stall[note: 26]

$5,000

Yes

20.

18 March 2018

Cash

For the Defendant to purchase ingredients for her coffee shop stall[note: 27]

$1,500

No

21.

17 April 2018

Cash

For rental of the Defendant’s coffee shop stall[note: 28]

$5,000

Yes

22.

18 April 2018

Cash

For rental of the Defendant’s coffee shop stall[note: 29]

$1,000

No

23.

11 July 2018

—

For rental of the Defendant’s coffee shop stall[note: 30]

$5,000

No. However, Defendant admitted in her POHA affidavit[note: 31] on 4 December 2018 to receiving the sum of $6,000 in July 2018 in return for having sex with him at a hotel 10 times.

24.

20 July 2018

Cash

For the Defendant’s son’s daily expenses[note: 32]

$1,000

Yes

25.

7 September 2018

—

—

$1,000

No

26.

End 2018

—

—

$1,000

No

Total

$274,397

$217,897



6       On the stand, the Defendant conceded that she did not record the amounts of money she received from the Claimant[note: 33]. There were also sums which she denied receiving but for which there was evidence indicating otherwise (see S/N 15 and 23 above). Given that the Claimant was able to set out in detail the amount transferred, the purpose given by the Defendant for the transfer and in most instances, the dates of the transfer, I accepted his evidence on the quantum of transfers.

Issue 2: Were the transfers in the nature of loans or gifts

Legal Principles

7       A loan is a simple contract where the lender pays or agrees to pay a sum of money in consideration of a promise by the borrower to repay the money upon demand or at a fixed date: City Hardware Pte Ltd v Kenrich Electronics Pte Ltd [2005] 1 SLR(R) 733 at [23] citing Clifford L Pannam, The Law of Money Lenders in Australia and New Zealand (The Law Book Company Limited, 1965) at page 6. A valid gift inter vivos is made where there is an intention to gift and delivery of the precise subject matter of the gift. The court assesses the subjective intention of the donor at the time of the transfer: Toh Eng Tiah v Jiang Angelina & another appeal [2021] 1 SLR 1176 (“Toh Eng Tiah”) at [52]. Once given, a donor cannot resile from his position and subsequently seek to convert a gift into a loan. This is because once there has been a voluntary transfer of a gift, and a full intention that the gift shall not return, the donor parts fully with the property: Toh Eng Tiah v Jiang Angelina [2020] SGHC 65 at [34] citing Chung Khin Chun K (by her deputy Mok Chiu Ling Hedy) v Yang Yin and others [2015] 5 SLR 467 at [41]. However, parties may well enter into a contract where the donee undertakes to repay a sum of money initially given as a gift: Toh Eng Tiah at [55].

8       As set out earlier, the Claimant does not have contemporaneous documentation at the time the monies were transferred to the Defendant that they were in the nature of loans. However, he relies on the following:

(a)     three IOUs signed by the Defendant[note: 34];

WhatsApp text messages sent by the Defendant using the words “borrow” and “return”;

(b)     audio recordings between the two of them;

(c)     an insurance policy purchased by the Defendant; and

(d)     the Defendant’s sporadic repayments to him.

(a)   IOUs

9       The First IOU is dated 13 January 2017 where the Defendant promised to return the Claimant the sum of S$32,000 in January 2024. In the Second IOU, the Defendant confirmed that she had taken an interest-free loan of $100,000 from the Claimant and would repay him the amount of $500 between the 15th and 20th day of each month starting June 2017 until the stated amount is discharged. She also promised not to change the beneficiaries nominated under the Prudential Assurance Policy No. 64681589. In the third IOU, the Defendant stated that she has taken a loan of $24,500 from the Claimant on 16 April 2018 and would return the money on 15 April 2022 without interest.

Were the IOUs procured by duress?

A.   The Defendant’s version

10     The Defendant relied on the fact of duress to vitiate the IOUs that the Claimant relied on to prove her acknowledgement of the purported loans.

11     The Defendant gave evidence that there was an incident of violence in 2016 where the Claimant had dragged her out of a customer’s car and pushed her into a taxi. She was then forced to make a voice recording on his phone that she had cheated his money and that she was to go to his house the next day to sign an IOU stating that she would pay him back $500 a month. The Defendant went to the Claimant’s house reluctantly. Although she was reluctant to sign the IOU, the Claimant grabbed her hair and held a knife to her neck and threatened her. She signed the document and made a few payments but when they resumed their relationship, the Defendant tore up the IOU and did not ask for further payments[note: 35].

12     The Defendant claimed that their “on-off” relationship continued for several years. Every time she wanted to break up, the Claimant would force her to sign another IOU and then tear it up when they got back together. The IOUs were therefore used by the Claimant as a way of keeping the Defendant in a relationship with him[note: 36].

13     In August 2016, when the Defendant had already broken up with the Claimant, the Claimant threatened that if she did not return the money, he would kill her children and her whole family[note: 37]. While the Defendant made a police report, I note from the police report that this threat was not captured. What was captured was the fact that the Claimant has been harassing her at home and at her work place asking for the return of his money if she wanted to end the relationship or to repay in the form of sexual services every week. There was however allusion to the fact that he had assaulted her in the past but she did not report him as he had helped her a lot financially[note: 38].

14     The Defendant also alleged that the Claimant had assaulted her near her former matrimonial home a few days after she made the police report[note: 39]. In addition, the Claimant had threatened her in 2017 that if she made him unhappy, he would push her off a tall building and claim the insurance money. The Claimant later made her sign an IOU regarding the insurance monies[note: 40].

B.   The Claimant’s Version

15     The Claimant countered that the Defendant’s accusations were baseless and should be given little weight. If the Claimant had indeed forced the Defendant to sign the IOUs under duress, it would be illogical to continue transferring money to her shortly afterward such as on 17 April 2018 and in July 2018.

16     Counsel for the Claimant sought to argue that from the audio recordings, it was obvious that the Defendant was not nervous at all when speaking to the Claimant. Her choice of words, such as “I know, I know lah. Don’t need to remind lah”[note: 41] and her quip that taking the Claimant’s two hundred thousand dollars was not much[note: 42] revealed a brazen and abrasive demeanour rather than one of fear or submission. Her tone in the various recordings does not indicate any fear or apprehension. On the contrary, it is clear that she was not intimidated by the Claimant which undermines her allegations of duress or threats. The Defendant’s offer to write the Claimant IOUs to borrow more money also contradicts her assertion that the Claimant forced her to sign the IOUs as a means of controlling her and keeping her in the relationship.

C.   Analysis

17     In Tam Tak Chuen v Khairul bin Abdul Rahman [2009] 2 SLR(R) 240 at [22] & [62], the High Court set out two elements in the wrong of duress: (a) pressure amounting to compulsion of the will of the victim; and (b) the illegitimacy of the pressure exerted. Once illegitimate pressure had been proved, the party complained against had to prove that the pressure had contributed nothing to the complainant’s decision to execute the decision and his consent had not been vitiated. Citing the Privy Council in Pao On v Lau You Long [1980] AC 614, the High Court set out the following factors that have to be considered to decide whether consent has been vitiated: (a) whether the person alleged to have been coerced did or did not protest; (b) whether, at the time of the alleged coercion, the person did or did not have an alternative course open to him; (c) whether he was independently advised; and (d) whether after entering into the contract he took steps to avoid it.

18     An audio recording which the Claimant put at February 2016 reveals that the Defendant’s signing of the IOUs appeared to be at the Claimant’s behest and that the Claimant dictated the terms of the IOU:

Female 1:

You tell me to return it today. Whatever you want me to sign, I will sign. So you can scold me or tell me off or anything. I have let you down this time round. Uh whatever you want me to sign, I will sign it. My thing with you, I will do this, that’s all.

Male 1:

You are right doing it this way[note: 43].



19     Another audio recording dated 2 April 2016 indicated that the terms of the repayment captured in the IOUs were not definitive and varied according to whether the parties were in a relationship or not:

Female 1:

Didn’t I wrote it le lor? I wrote on a white paper and give it to you le lor.

Male 1:

Write le, wait two years?

Female 1:

Uh, didn’t you told me to write a few years that day?

Male 1:

What happened that day, we were still together, ok? I felt that it didn’t matter la hor.[note: 44]



20     In the audio recording which the Claimant put at 5 April 2017[note: 45], the Defendant is recorded as dictating the terms of what appears to be the Second IOU to the Claimant but the Defendant alluded to a facade of the Claimant scolding her:

Female 1:

No no no no no no no no. You have to write, you must write one month five hundred thousand, uh five hundred dollars. You agree for me to pay every month five hundred dollars, five hundred dollars. You agree to let me pay five hundred dollars every month.

Male 1:

Ah,

Female 1:

You must. Cannot, you cannot like that, you cannot be this way don’t write inside de. Borrow money, you want me … You cannot ah. Then you, then you write like that leh. You won’t sue me. You want to pretend to scold me mah. Correct?

Male 1:

Then I write amount (inaudible)

Female 1:

Cannot, you … You write, you write one hundred thousand dollars every month. I return you 500 dollars

Male 1:

Ok ok.

Female 1:

15th till 20th.

Male 1:

No need.

Female 1:

I have to return the money.



21     However, it was clear that the terms of the IOUs were subject to the vagaries of the Claimant as the Claimant appeared thereafter to ask the Defendant to change the First IOU to four years:

Male 1:

Never mind hor, the thirty-five thousand dollars, the, the, the, the old thirty-two thousand dollars, when will you return?

Female 1:

When it’s time, I will return.

Male 1:

Huh?

Female 1:

When it’s time, I will return.

Male 1:

Huh, that one I need to change, I want you to change to four years hor because that time I text you to change to four years.



22     The IOUs were signed on 13 January 2017, sometime before June 2017 and on 16 April 2018. By then, the parties were already in an “on-off” relationship. The Defendant’s version that the relationship was a physically abusive one was consistent with the police report she made on 23 August 2016. Based on the police report, the Defendant had tried to break up with the Claimant on numerous occasions to no avail. After she broke up with him, the Claimant had harassed her by calling her, turning up at her work place and home, embarrassing her at work and asking for the return of what he had initially given her. I therefore accept that there was illegitimate pressure in the form of violence and harassment.

23     As to whether the pressure amounted to compulsion of the will of the victim, I accepted that the Defendant would not have been in a constant state of fear throughout what the Defendant described as an “on-off relationship” with the Claimant between 2016 and 2018. It is also not clear whether a particular audio recording corresponds with the “on” or “off” phase of the relationship. During the “on” phase of the relationship, it would not be unusual for the Defendant to coquettishly jest and banter with the Claimant as regards the money that he is giving her. However, in the face of illegitimate pressure in the form of violence and harassment if she were to break up with the Claimant and in view of her financial dependence on the Claimant and the threat of having to repay what had been earlier given to her, the Defendant was essentially being emotionally blackmailed into staying in the relationship. The Defendant would probably have come to the realization that signing the IOUs as required by the Claimant was what he wanted and her only practicable way to manage the Claimant’s behaviour during the “off” phase. The Defendant’s evidence that the Claimant would tear up the IOUs when they resumed their relationship and that they would not be effective as long as they were together[note: 46] caused the Defendant to believe that the Claimant would not enforce the IOUs and was simply using them to keep her in a relationship with him. This would also explain why the Defendant even offered to write IOUs for the Claimant[note: 47]. Bearing in mind that it was the Claimant who had to prove that the illegitimate pressure had contributed nothing to the Defendant’s decision to sign the IOUs, I do not think this burden had been discharged.

Weight of the IOUs

24     Even if the IOUs were not vitiated on the ground of duress, in the context of how they came to be signed, I found myself unable to place much weight on them to shed light on whether the transfers made were loans.

25     The Claimant conceded that the IOUs before the Court were made at least two to three years after the monies were transferred to the Defendant[note: 48] and while the Claimant was reluctant to admit this on the stand, only after the Defendant had first broken up with him in 2016[note: 49]. The numbers in the IOUs also do not tally with what was pleaded to be owing at the relevant time.

26     The first IOU relied upon by the Claimant is dated 13 January 2017 where the Defendant promised to return the Claimant the sum of $32,000 in January 2024. It is unclear how the sum of $32,000 has been derived, given that by the Claimant’s account, he would have transferred the sum of $212,897 by the end of 2016. Even with the return of $3,500 as he claimed, a sum of $209,397 is owing.

27     The second IOU that the Claimant relied on was not dated but must have been recorded sometime before June 2017. In the second IOU, the Defendant confirmed that she had taken an interest-free loan of $100,000 from the Claimant and would repay him the amount of $500 starting June 2017 until the amount is discharged. Again, the amount stated to be owing is inconsistent with what the Claimant pleaded to be owing as at June 2017. At the repayment rate of $500 per month, it would take a total of 200 months or 16 years to discharge the loan.

28     The third IOU is not dated but the Claimant stated that the Defendant signed it on 16 April 2018. Similarly, it is unclear how the sum of $24,500 is derived.

29     The Claimant did not offer any evidence as to how the sums stated in the IOUs relate to the sums which he now claims, whether individually or collectively[note: 50]. The Claimant also claimed[note: 51] that in respect of the sum of $46,897.00 transferred to the Defendant in 2015, the sum had been recorded by way of an IOU for the Defendant to return him the sum of $500 per month. However, the IOU was subsequently returned to the Defendant. The Claimant was unable to satisfactorily explain why he did so[note: 52], when it was undisputed that the Defendant did not return the sum to him.

30     The fact that the IOUs were made long after the monies were disbursed and did not relate to the sums alleged to be owing as at the dates of the IOUs casts serious doubt on their probative value as loan records. The Claimant was unable to satisfactorily explain why the IOUs only evidence a portion of what he claims were loans to the Defendant. He alluded to the Defendant’s objections that it was not necessary to record the entirety of the sums and that he should trust her given their relationship[note: 53]. However, this did not appear to be borne out by the audio recordings on 17 April 2017[note: 54] where it was in fact the Claimant who said that there was no need to write any more “black and white”.

31     According to the Defendant, the IOUs were signed during her “on-off” relationship with the Claimant when she wanted to break up with the Claimant. The Claimant would bring up the money he had previously given her and claim that they were loans. The Defendant’s evidence was consistent with the contemporaneous police report which she made on 23 August 2016. There the Defendant stated that the Claimant had given her money while they were in a relationship but started harassing her at her work place and home when she tried to end the relationship. The Claimant asked for a return of his money of $100,000 or she had to have sex with him every week. The Defendant also stated that when the Claimant helped her financially, he did not say the money was a loan and that he gave her the money willingly.

32     Having heard both the Claimant and the Defendant give evidence in court, I did not find the Claimant to be a forthcoming witness. Even when faced with incontrovertible evidence that the IOUs appeared to be signed at least two to three years after the monies were transferred to the Defendant, he was slow to concede the point[note: 55]. I find the Defendant’s version of events to be more credible, being consistent with her contemporaneous police report and filling the gaps as to why there was no IOU relating to the sum of $46,897.00, why the IOUs were made long after the transfers, and why they do not record what the Claimant alleged were owing at the date of the IOUs.

33     Correspondingly, the IOUs before me, which appear to be an afterthought rather than a record of loans owing at a certain point in time, did not help the Claimant to advance his case that the transfers were in the nature of loans, as opposed to gifts to someone whom he was romantically and sexually interested in. Rather than an acknowledgement of what was actually owing, they appear to be documents which were signed by the Defendant to appease the Claimant and keep his harassment at bay.

(b)   WhatsApp Text Messages

34     During cross-examination, the Defendant was directed to a series of WhatsApp text messages which were exhibited in the Claimant’s affidavit[note: 56] and in the Agreed Bundle where the Defendant had used the words “borrow” and “return”. The Defendant did not dispute sending the following messages to the Claimant:

S/N

Date of Message

Substance of Message

1.

22 February

She would transfer money for the month at the end of the month and she was trying hard to find another amount for now[note: 57]

2.

22 April

She would start returning him his money every month as previously agreed starting from 20 May. If he were to come to her stall to give her stress or problems, she will close her stall and it would be harder for him to get his money back[note: 58].

3.

20 May

She would transfer the money at the end of the month[note: 59].

4.

31 May

She would only pay him next month as she does not have enough money and needs to save some money to go back to Vietnam[note: 60].

5.

29 June

In response to a message from the Claimant asking for a transfer of $1,200 the next day, the Defendant replied that she did not have the money and said that she would pay him when she has the money[note: 61].

6.

—

She does not have any money and to give her time and that she would start paying him after that year[note: 62].

7.

—

The Defendant also asked for a loan of $6,000 so that she need not borrow from the loan sharks[note: 63].

It would appear that this request was rejected by the Claimant asking her to ask her friends to help instead[note: 64].



35     The Claimant argued that in the text messages, the Defendant did not deny that the monies she received were loans but was proactive in offering repayment plans to the Claimant.

36     Although neither party put a year to the messages that the Defendant sent during cross-examination[note: 65], counsel for the Claimant state in their written submissions that the Defendant’s messages set out at paragraph 34 at S/N 1, 2, 6 and 7 were sent in 2018, and those at S/N 3 to 5 were sent in 2017. Even so, it was difficult to correlate the messages to the loans which the Claimant is claiming were disbursed. While these messages do indicate that the Defendant had said she would pay the Claimant, there is no indication that this was pursuant to loans which the Defendant had taken from the Claimant and which alleged loan the repayments relate to. While they capture the Defendant’s intent to pay the Claimant, save for S/N7 which is dealt with in greater detail below, they did not capture the Defendant’s requests for the loans in the first instance or the parties’ intent at the time of the transfers. For the message at S/N 7, while the Defendant did ask the Claimant for a loan of $6,000 so that she need not borrow from the loan sharks, it would appear that this request was rejected by the Claimant. The Claimant put this message in 2018[note: 66] which meant that this was unrelated to the cash transfer of $6,000 to the Defendant on 8 July 2017 which was for the purpose of repaying a loan shark debt. While one may argue that the choice of words used indicate that the transfers were intended as loans, it was equally consistent with the Defendant’s account that she had sought to return the monies because following a breakdown of their relationship, the Claimant had sought to claw back from her what were initially intended as gifts.

37     The Claimant also pointed to various WhatsApp messages which he sent to the Defendant to support his case:

S/N

Date

Substance of Message

1.

6 March

“In 10 days you got to pay 3k. Or else you have to write black and white the total amount you owe me, this is what you ever promise.”[note: 67]

2.

10 July

“2015 Total $46,897”

“2016 Total $166,000”[note: 68]

3.

31 October

“Ah Long 1 day $50 interest. You ask for $1,000 on 11/09/2018. Today is last day of the month, you should return $1,000. You promise. Transfer to my account tomorrow”[note: 69]

4.

4 November

“If I don’t received your call before 11.30 pm I’ll terminate the insurance. The money you owe $274,397 how you settle”[note: 70]

5.

7 November

“Asked what, take what. Change 200 thousand worse it means what? Court coming soon when? O$P$. Call police no problem, don’t make up story and tell lies.”



38     As set out earlier, while these messages do indicate the Claimant chasing the Defendant for payment and stating the amounts owing, the Claimant did not put a year to when they were sent and there is no clarity on whether this was pursuant to loans which the Defendant had taken from the Claimant. In particular, while the message in S/N 3 in paragraph 37 refers to the Defendant asking for $1,000 on 11 September 2018, the Claimant’s pleadings and evidence do not reflect a loan of $1,000 on 11 September 2018. It is also pertinent to note that on 19 October 2018, the Defendant had made a police report that the Claimant had gone to her workplace to make a scene and to demand that she go to the hotel with him. In the report, the Defendant alluded to the fact that the Claimant had recently started to harass her for sex and that if she did not comply, she would have to return him the money which he gave her in 2016[note: 71]. Correspondingly, the text messages were equally consistent with the Defendant’s account that the monies were given as gifts in the context of a romantic and sexual relationship[note: 72] and the Claimant only asked for the return of the monies following a breakdown of that relationship.

(c)   Audio Recordings

39     In the Agreed Bundle, there were several audio recordings dated as follows which the Claimant is relying on:

(a)       February 2016

(b)       2 April 2016

(c)       21 May 2016

40     In the audio recording dated February 2016[note: 73], the Defendant told the Claimant that she will sign whatever he wants her to sign and that she would pay him back $1,000 per month. He can buy insurance as planned and he would be able to get his money back.

41     In the audio recording dated 2 April 2016[note: 74], the Claimant asked the Defendant when she was going to return the whole sum to him. She claimed that she had already given him a “black and white” with “two years” upon his instructions. However, the Claimant claimed that was while they were still together and he felt that it did not matter. Given the large sum that she now owes him, he asked for the return of the money and when she would return the money. The Defendant then asked for two years to return the money.

42     In the audio recording dated 21 May 2016[note: 75], the Defendant told the Claimant that he treated her very well and had given her so much. In another excerpt, the Defendant told the Claimant that he would only be able to get his money back via insurance and the Claimant agreed, telling the Defendant that he had already purchased close to $300,000.

43     The Claimant also relied on various audio recordings in relation to conversations which he said took place on 5 April 2017, 17 April 2017 and 31 August 2017.

44     In the audio recording which the Claimant said happened on 5 April 2017[note: 76], the Defendant asked the Claimant to write that he agreed that she would pay him $500 every month and he would not sue her. She then talked about returning the money between 15th and 20th and having to return the money. The Claimant then asked her when she would be returning the $32,000. The Defendant replied that she would return when it is time to which the Claimant replied that he wanted to change the date to four years.

45     In the second audio recording which the Claimant puts at 17 April 2017[note: 77], the Defendant asked to borrow five thousand dollars which she would return after the new year. The Claimant reminded the Defendant that she had already taken his $3,000 in February or March. The Defendant then promised to write a “black and white” for him if she did not return him the money. The Claimant then replied that there was no need for further “black and white” and that two pieces were sufficient. When the Claimant complained that she constantly asked him for help to borrow money but never returned the money, the Defendant asked him to help her for one last time and that she would write “one more one hundred thousand give you lah”.

46     In the third audio recording which the Claimant puts at 31 August 2017[note: 78], the Defendant admitted to taking two hundred thousand of the Claimant’s money but jested that it was not a lot. She then said that “No need to return, still want to take lah. Take your money must return, who do you think you are hor.”

Analysis

47     As the Defendant was quite clear in that she did not keep any messages or audio recordings and in fact alluded to the fact that the audio recordings did not capture the entire context of their conversations, I proceeded on the basis that the messages and audio recordings were the ones most favourable to the Claimant.

48     The audio recordings in February 2016 indicate that the Defendant was willing to sign whatever the Claimant wished her to sign but there was no evidence of any transfers in February 2016 and it was unclear whether the return of the monies was in respect of loans as alleged by the Claimant or gifts as alleged by the Defendant.

49     In relation to the audio recording on 2 April 2016, I note that this was on the same day that the Claimant stated that he had disbursed a cheque of $41,000 to the Defendant. However, there is no reference to this sum and their conversation appears to relate to an IOU which the Defendant had written some time ago, which IOU does not appear to be before the Court, given that none of the IOUs before the court referred to two years being the repayment period:

Male 1:

Ah, if ok, you tell me la. So, when are you going to return it to me all in one go?

Female 1:

Didn’t I wrote it le lor? I wrote on a white paper and give it to you le lor.

Male 1:

Write le, wait two years?

Female 1:

Uh, didn’t you told me to write a few years that day?

Male 1:

What happened that day, we were still together ok? I felt that it didn’t matter la hor.



50     For the audio recordings in 2017, the audio recording on 5 April 2017, in particular, provides context to how the Second IOU came about and an indication that the Claimant wanted to bring forward the repayment date of the First IOU. In fact, there is a line in the recording from the Defendant that with the IOU, the Claimant would not sue her. For the audio recording on 17 April 2017, the Defendant asked to borrow five thousand dollars but no transfers were in fact made in the second quarter of 2017.

51     In fact, the Defendant’s use of the words “treat me so well” and “given me so much” in the audio recording on 21 May 2016[note: 79] and the parties’ use of the word “take” when referring to the monies transferred and the Defendant’s joke as to the need to return the money in the audio recording of 31 August 2017[note: 80] on what must have been the better days of their relationship suggest that the transfers were not in the nature of loans.

52     At the highest, the messages and audio recordings indicate that the Defendant intended to repay the monies she took from the Claimant but they do not shed much light on the intent of the parties at the time of transfer. The sums transferred to the Defendant were not small and in certain instances, the Claimant had to terminate his insurance policies to transfer the sums to her. By his own admission, the Claimant was aware that the Defendant was in debt[note: 81] and had no means of returning the monies to him. According to the Defendant, the Claimant only started to claim that the money he had given her were loans only after their relationship started to strain in 2016 and that the Claimant would not ask for the return of the monies as long as they were in a relationship. This was consistent with the audio recordings where the Claimant said it did not matter when she returned the money when they were still together. The Defendant also claimed that over the course of their on-off relationship[note: 82], she had signed IOUs under pressure which were then torn up when they resumed their relationship. The audio recordings indicating that the Defendant was willing to sign whatever the Claimant wanted her to sign, the references to IOUs which were not before the Court and the fact that the IOUs before the Court were made long after the monies were disbursed and did not relate to the sums alleged to be owing as at the dates of the IOUs lend credence to the Defendant’s account. The Defendant’s references to return the Claimant’s money did not correlate to any particular sum disbursed by the Claimant and were not made in consideration of the transfer of any sum. Correspondingly, they do not appear to be premised on a legal obligation to repay and are not determinative that the transfers were loans.

(d)   Insurance Policy

53     The Claimant argued that the insurance policy in the Defendant’s name further supports the claim that the monies transferred to her by the Claimant were loans that were expected to be repaid and it was the Defendant who voluntarily offered to purchase the insurance policy as a way to repay the monies, being fully aware that the funds transferred to her were always intended as loans.

54     The Defendant had purchased an insurance policy dated 25 March 2017 where the Claimant’s niece and the Defendant’s son would each get $250,000 in the event of the Defendant’s death[note: 83]. The Claimant was one of two witnesses when the Defendant signed off on the nominees on 21 March 2017. While it is disputed who had suggested the purchase of the policy, the audio recordings in February 2016 recorded the Defendant as saying that the Claimant could buy the insurance “as planned” and left it to him whose name he would put[note: 84] so that he could get his money back in the event of her death. In the recording on 21 May 2016, the Defendant was also recorded as stating that if the Claimant really wanted to buy insurance, she could find[note: 85]. In response, the Claimant stated that he had already bought close to $300,000 of insurance[note: 86]. Given that the source of some of the larger sums transferred to the Defendant had come from the Claimant’s insurance policies, I find that the buying of an insurance policy was something which the Claimant was more familiar with. The fact that the Claimant talked about terminating the insurance policy in his text message on 4 Nov[note: 87] also indicated that it was the Claimant who was making the decisions as regards the insurance policy. The objective evidence therefore corroborated the Defendant’s evidence that the insurance policy was the Claimant’s idea so that he could get back the money he had given her in the event of her death. Correspondingly, I am of the view that the insurance policy did not advance the Claimant’s case that the monies transferred were in the nature of loans.

(e)   Repayments by the Defendant

55     According to the Claimant, the Defendant repaid $1,000 to him at the end of 2015 and $2,500 at the end of 2016[note: 88]. As these repayments in 2015 and 2016 were during the early stages of their alleged relationship when both parties were still on good terms, the Claimant argued that these were indicative that the transfers were in the nature of loans. The Defendant did not deny repaying the Claimant about $6,000 but explained that the repayments were made in the context where she had wanted to end the relationship and the Claimant started referring to the gifts as loans[note: 89].

56     According to the Claimant, he started to record their voice calls as he started suspecting that the Defendant was telling lies[note: 90]. This must have started as early as, if not earlier than, February 2016, given that this was the earliest audio recording tendered[note: 91]. This indicates that their relationship had already started to strain by then. Viewed in this context, the repayments by the Defendant do not have presumptive value in determining whether the monies transferred to her were in the nature of loans.

Conclusion

57     A claimant in a civil claim bears the legal burden of proving the existence of any relevant fact necessary to make out its claim on a balance of probabilities. In the present case, the legal burden of proof is on the Claimant to prove that the monies transferred to the Claimant were in the nature of loans. The burden of proof was not on the Defendant to prove that the monies transferred were gifts.

58     In this regard, I find that the Claimant had failed to discharge his burden of proof that the sums disbursed to the Defendant were in the nature of loans. First of all, there were no documents, messages or audio recordings contemporaneous with each of the 26 transfers indicating that they were loans. While one would not expect formal loan documentation, the fact remained that while the Claimant was able to produce various text messages and selective audio recordings about the Defendant agreeing to repay monies to him, the Claimant failed to produce any contemporaneous documentary or audio evidence in relation to any of the sums which he claimed were loans and which were probative of the parties’ intent at the time of the transfers. This was despite the fact that he had already started recording their voice calls as early as February 2016 which, barring the transfer of $46,897 in 2015, preceded the transfer of all the amounts which he now claims are loans. Even for the first transfer of $46,897 in 2015, which the Claimant claimed he cobbled together from his insurance payout, savings and sale of his car, there was no contemporaneous evidence before the Court that this was a loan given in consideration of a promise to repay. The lack of such evidence was glaring and crucial because in determining whether a transfer was a loan, the Claimant needed to prove that the various transfers had been made in consideration of a promise by the Defendant to repay the money.

59     Based on the evidence given by the Claimant, the purpose for which the monies were to be used relate to solving the Defendant’s financial problems, helping her family in Vietnam or Singapore, paying her medical bills, helping with her livelihood or even for her to have some spare cash in her own bank account. At the time the monies were transferred to the Defendant, the Claimant was aware that the Defendant was in debt and incapable of repaying the monies which have been transferred to her. Yet the Claimant continued to transfer significant sums of money to the Defendant to help her with her personal problems with no contemporaneous documentation or evidence as to the nature of such transfers and how they would be repaid, if indeed they were loans. This was the case even in the later part of their relationship, when their relationship had become visibly strained.

60     The Defendant also stated that the $5,000 and $1,000 that the Claimant gave her to help her pay for her stall rental on 11 and 20 July 2018 respectively was in exchange for her having sex with him 10 times[note: 92]. They subsequently met for sex on 13 July, 4 August and 7 September 2018. This was corroborated by the audio recordings dated 27 September 2018[note: 93] and the Claimant’s text message on 29 September[note: 94]. The Defendant had also taken a consistent stand in both her police reports on 23 August 2016 and 19 October 2018 that the monies transferred to her were gifts and which did not need to be returned if she continued to have sex with him. The IOUs were made long after the transfers and did not record the amounts alleged to be owing. References in the text messages and audio recordings about the Defendant returning the monies to the Claimant did not relate to any particular sum alleged to be disbursed by the Claimant and were not made in consideration of any specific transfers. They appeared to be made in a context where the Defendant was trying to break up with the Claimant and where the Claimant was trying to claw back from the Defendant what had been initially given. Given the totality of the evidence, the inference to be drawn is that the transfers were gifts by the Claimant to the Defendant in the context of a romantic and sexual relationship to solve her problems, win over her heart and to maintain and at a later stage, salvage their relationship and there was no intention to create an obligation to repay at the time of the transfer.

61     In the circumstances, I find that the Claimant has failed to show that the monies transferred to the Defendant were more likely than not to be loans and I dismiss the Claimant’s claim with costs.

62     The parties are to file and exchange written submissions on the issue of costs (limited to 10 pages) within 14 days from the date of this judgment.

[note: 1]Statement of Claim at [4] and [7]

[note: 2]Lim Sheng Long’s (LSL) Affidavit of Evidence in Chief (AEIC) at [4] – [9]

[note: 3]LSL AEIC at [37]

[note: 4]Bui Thi Thanh Huyen’s (BTTH) AEIC at [55]

[note: 5]BTTH AEIC at [10], [44] & [55]

[note: 6]BTTH AEIC at [11]

[note: 7]BTTH AEIC at [13]

[note: 8]LSL AEIC at [13]

[note: 9]LSL AEIC at [14]

[note: 10]LSL AEIC at [16] & [17]

[note: 11]LSL AEIC at [19]

[note: 12]LSL AEIC at [21]

[note: 13]LSL AEIC at [22]

[note: 14]LSL AEIC at [23a]

[note: 15]LSL AEIC at [23b]

[note: 16]LSL AEIC at [23c]

[note: 17]LSL AEIC at [23d]

[note: 18]LSL AEIC at [23e]

[note: 19]LSL AEIC at [26]

[note: 20]LSL AEIC at [27]

[note: 21]LSL AEIC at [28]

[note: 22]LSL AEIC at Tab 16, BA118, lines 5-6

[note: 23]LSL AEIC at [29]

[note: 24]LSL AEIC at [30]

[note: 25]LSL AEIC at [31]

[note: 26]LSL AEIC at [33a]

[note: 27]LSL AEIC at [33b]

[note: 28]LSL AEIC at [33c]

[note: 29]LSL AEIC at [33d]

[note: 30]LSL AEIC at [33e]

[note: 31]LSL AEIC at Tab 9, BA71 paragraph (v)

[note: 32]LSL AEIC at [34]

[note: 33]NE, 11 July 2024, 41/7-9

[note: 34]LSL AEIC at Tab 2

[note: 35]BTH AEIC at [12] – [13]

[note: 36]BTH AEIC at [14]

[note: 37]BTH AEIC at [17]

[note: 38]BTH AEIC at Tab 2, BA139-140

[note: 39]BTH AEIC at [19]

[note: 40]BTH AEIC at [20]-[21]

[note: 41]Audio recording of 17 April 2017 at LSL AEIC at Tab 16, BA118 line 6

[note: 42]Audio recording of 31 August 2017 at LSL AEIC at Tab 15, BA116 line 5

[note: 43]Agreed Bundle of Documents (“ABD”) 24 at lines 1-5

[note: 44]ABD27 at lines 3-7

[note: 45]LSL AEIC at Tab 14, BA114

[note: 46]NE, 11 July 2024, 49/3-6

[note: 47]LSL AEIC at Tab 16, BA118 line 7-8, 17-19

[note: 48]NE, 11 July 2024, 28/3-7

[note: 49]NE, 11 July 2024, 28/17-30

[note: 50]NE, 11 July 2024, 28/31 – 31/11

[note: 51]LSL AEIC at [12]

[note: 52]NE, 11 July 2024, 9/3-19, 13/12-23, 28/22-23

[note: 53]LSL AEIC at [42]

[note: 54]LSL AEIC Tab 16 at BA118 line 9

[note: 55]NE, 11 July 2024, 25/22 – 28/7

[note: 56]LSL AEIC at Tab 1

[note: 57]LSL AEIC at Tab 1, BA17, ABD124, NE, 11 July 2024, 43/1-7

[note: 58]LSL AEIC at BA19. ABD126, NE, 11 July 2024, 43/8-21

[note: 59]LSL AEIC at BA24, ABD131, NE, 11 July 2024, 43/22-25

[note: 60]LSL AEIC at BA24, ABD131, NE, 11 July 2024, 43/27-30

[note: 61]LSL AEIC at BA25, ABD132, NE, 11 July 2024, 44/1-9

[note: 62]LSL AEIC at BA28, ABD135, NE, 11 July 2024, 44/20 - 45/1

[note: 63]LSL AEIC at BA29, ABD136

[note: 64]LSL AEIC at BA29, ABD136

[note: 65]NE, 11 July 2024, 42/32-45/29

[note: 66]Paragraph 11(g) of the Claimant’s written submissions

[note: 67]ABD124

[note: 68]ABD120

[note: 69]ABD145

[note: 70]ABD146

[note: 71]BTTH AEIC at Tab 5, BA147-148

[note: 72]NE, 11 July 2024, 55/32-56/4

[note: 73]ABD24-25.

[note: 74]ABD27-28

[note: 75]ABD32-33

[note: 76]LSL AEIC Tab 14 at BA114, ABD149

[note: 77]LSL AEIC Tab 16 at BA118, ABD151

[note: 78]LSL AEIC Tab 15 at BA116, ABD150

[note: 79]ABD32 lines 8 and 12

[note: 80]LSL AEIC at Tab 15, BA116 line 5, 7 and 8

[note: 81]LSL AEIC paragraph 7, NE, 11 July 2024, 5/13-14

[note: 82]BTTH AEIC at [14]

[note: 83]LSL AEIC Tab 13 at BA109-112, ABD 48-51

[note: 84]ABD24 line 17

[note: 85]ABD33 line 2

[note: 86]ABD33 line 4-5

[note: 87]ABD146

[note: 88]LSL AEIC at [37]

[note: 89]BTTH at [55] - [57]

[note: 90]LSL AEIC at [50]

[note: 91]ABD24-25

[note: 92]BTTH AEIC at [24]

[note: 93]ABD56

[note: 94]BTTH AEIC at Tab 4 at BA145

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Chong Kuan Siong v Goh Boon Kiat, Lennard
[2024] SGMC 70

Case Number:Originating Claim No 509 of 2024
Decision Date:02 October 2024
Tribunal/Court:Magistrate's Court
Coram: Chiah Kok Khun
Counsel Name(s): Lin Ruizi, Yong Ying Jie (Denise) and Nikhita Mulani (Shook Lin & Bok LLP) the claimant; Michael Ng Man Hon and Yong Hong Kit Clement (Yang Fengji) (Beyond Legal LLC) for the defendant.
Parties: Chong Kuan Siong — Goh Boon Kiat, Lennard

Contract – Illegality and public policy – Common law

Contract – Loan agreement – Whether loan agreement unenforceable for illegality

2 October 2024

Judgment reserved.

District Judge Chiah Kok Khun:

Introduction

1       This dispute was tried before me on a documents-only basis.

2       The parties have agreed for the dispute to be adjudicated under a protocol implemented in the State Courts which provides for civil trials or assessments of damages to be conducted on a documents-only basis (“DOTA hearing”).[note: 1] The DOTA hearing is to allow for quicker disposal of cases which whilst involving issues that require adjudication, parties’ contentions on such issues could be proven by way of documentary evidence and expressed in writing. Besides issues of law, such cases may involve factual disputes, and affidavits of evidence-in-chief (“AEICs”) are filed; but parties take the view that having the witnesses of facts give evidence in court would not necessarily advance their respective position.

3       When filing a request for DOTA hearing, parties would have to state the extent of their agreement in respect of the presentation of evidence and submissions. In the present case, in requesting for the dispute to be resolved solely by documents, the parties have stated as follows:[note: 2]

(a)     The parties have agreed to admit AEICs without the attendance of witnesses.

(b)     The determination of existing disputes of fact can be made based on contemporaneous documentation alone.

(c)     The issues between the parties can be resolved by legal arguments.

(d)     The parties do not require oral submissions to be made at the trial and will be proceeding on the basis of written submissions.

The dispute

4       The dispute involves a claim for repayment of a personal loan of $12,000. After considering the documents and the parties’ written submissions, I am allowing the claim. My reasons are as follows.

5       The claimant is a financial services manager who manages a team at AIA Singapore Private Limited (“AIA”). The claimant and the defendant were first acquainted with each other in February 2018 while they were both employed by Unioracle Alliance LLP. They were also colleagues at Great Eastern Financial Advisers Private Limited (“Great Eastern FA”) from 24 June 2019 to 2 November 2021, where the defendant was a financial consultant reporting to the claimant who was a manager.

6       On 2 November 2021, the claimant left Great Eastern FA to join AIA. Sometime in May 2022, the claimant decided to recruit the defendant to his team at AIA. In response to the claimant’s overtures, the defendant resigned from Great Eastern FA on 29 May 2022.

7       On 27 October 2022, AIA issued a letter of intent to the defendant (the “LOI”). The LOI stated that the defendant would be offered the position of a financial services manager subject to (among other conditions) passing a financial soundness assessment (the “Financial Soundness Assessment”). The Financial Soundness Assessment included the requirement that the defendant’s personal liabilities for unsecured loans should not be more than $30,000.

8       The defendant informed the claimant that he had unsecured debts of more than $60,000. In response, the claimant extended a personal loan totalling $24,000 (the “Loan”) to the defendant to enable the defendant to discharge his debts. The defendant subsequently made various repayments towards the Loan, leaving an amount of $12,000 owing to the claimant. This amount forms the subject matter of the claim in the present action. The defendant does not dispute the outstanding loan amount of $12,000. But he contends that the claimant is barred from recovering the amount because the claimant had extended the Loan to him for illegal purposes.

Issues to be determined

9       The question to be determined by me in this action is therefore whether the claim for the sum of $12,000 is unsustainable because the Loan was extended to the defendant for illegal purposes.

10     The agreed list of issues are as follows:

(a)     Whether the loan agreement (“Loan Agreement”) was entered into with the object of misleading AIA in its assessment of the defendant’s financial soundness (“Misleading AIA”).

(b)     Whether the Loan Agreement was entered into with the object of circumventing MAS’s direct and/or indirect regulations concerning the financial soundness of insurance agents under the fit and proper person framework (“Circumventing MAS Regulations”).

(c)     Whether Misleading AIA or Circumventing MAS Regulations would be an illegal purpose such that the Loan Agreement would either (i) fall within one of the established categories of illegality at common law; or (ii) have been entered into with the object of committing an illegal act.

(d)     If the Loan Agreement was entered into for the purpose of Misleading AIA or Circumventing MAS Regulations, whether the Loan Agreement remains enforceable.

Analysis and findings

Events leading to the claimant extending the Loan to the defendant

11     I turn first to the events leading to the claimant extending the Loan. As alluded to above, AIA issued the LOI to the defendant on 27 October 2022. It stated that the defendant’s position with AIA was subject to requirements which included full compliance by the defendant with all sales/market conduct guidelines/policies of AIA. As part of complying with these guidelines/policies, the defendant had to pass the Financial Soundness Assessment. This included the condition that the defendant’s outstanding liabilities for unsecured loans should not be more than $30,000. Otherwise, AIA would need to assess his suitability for the position which had been offered to him.

12     It is not disputed that for the defendant to join the claimant’s team, AIA would have to appoint the defendant as one of its representatives under s 23 of the Financial Advisers Act 2001. The defendant would also have to be registered as an insurance agent with the Agents’ Registration Board (the “ARB”) through AIA. This was one of the Monetary Authority of Singapore’s (“MAS”) mandatory requirements.[note: 3]

13     In both instances, AIA would have to be satisfied that the defendant is a fit and proper person. In respect of the appointment as one of its representatives, AIA had to lodge with MAS a certificate that the defendant is such a fit and proper person.[note: 4] In respect of registering the defendant with the ARB as one of its insurance agents, AIA has to ensure that the defendant was able to comply with the General Insurance Agents' Registration Regulations, which similarly required the defendant to be a fit and proper person.

14     In this regard, MAS has prescribed that being a fit and proper person means the person must be financially sound,[note: 5] a requirement adopted by the ARB.[note: 6] Therefore, to meet the requirements of MAS and the ARB, AIA stipulated in the LOI that the defendant had to pass the Financial Soundness Assessment. As referred to above, this included the condition that the defendant’s outstanding liabilities for unsecured loans should not be more than $30,000.

15     On 1 November 2022, the defendant signed his confirmation and acceptance of the LOI. It is not disputed that the defendant had outstanding liabilities of more than $60,000 at the material time. The defendant informed the claimant that his outstanding liabilities were primarily in the form of credit card debts. It is common ground that the parties knew that the Financial Soundness Assessment presented an obstacle to the defendant successfully joining the claimant’s team at AIA because of the defendant’s credit card liabilities. It was plain that with these credit card debts, the defendant would not be able to pass the Financial Soundness Assessment.

16     On 4 November 2022, the claimant agreed to extend a sum of $20,000 to the defendant so that the defendant could reduce his credit card debts. On 15 November 2022, the claimant forwarded a further sum of $4,000 to the defendant. The amount of $4,000 was for the defendant to pay off the shortfall in his MediSave account in his Central Provision Fund (“CPF”). This was part of the defendant’s CPF contribution obligations for self-employed income. The sums of $20,000 and $4,000 constituted the Loan.

17     The defendant contends that in reality the Loan did not reduce the defendant’s level of unsecured debt. The defendant’s case is that the Loan only served the purpose of masking the defendant’s true level of unsecured debt in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. This is to circumvent the MAS regulations.

18     It is not disputed that the defendant eventually cleared all of AIA’s fit and proper person assessments. What remained outstanding were the reference checks with the defendant’s former employer, Great Eastern FA. The defendant contends that this shows that the claimant’s scheme to circumvent the MAS regulations was successful.

19     The defendant’s case is therefore that the Loan Agreement is unenforceable because it was entered into for the illegal purpose of providing a false picture of the defendant’s financial soundness to AIA Singapore.[note: 7]

20     The claimant on the other hand contends that the Loan Agreement is prima facie enforceable against the defendant. As such, it is the defendant’s evidential and legal burden to prove that the Loan Agreement is a contract that falls within one of the established situations of common law illegality, or entered into with the object of committing an illegal act and thus unenforceable. In this regard, the claimant says the defendant has failed to discharge his burden.

The purpose of the Loan

21     I turn to examine the issues. Both the first and second issues concern the question of what the purpose of the Loan was. I will discuss the two issues together.

22     As referred to above, the LOI stated that the offer of the position to the defendant included passing the Financial Soundness Assessment. This involved the requirement that the defendant’s personal liabilities for unsecured loans should not be more than $30,000. The defendant’s case is that personal liabilities for unsecured loans include unsecured debts owed to any person. It follows therefore that borrowing $24,000 from the claimant to pay off the credit card debts and CPF liabilities results in no reduction in the defendant’s overall level of unsecured debt. This is because the defendant’s indebtedness to the financial institutions and CPF has been transferred to indebtedness to the claimant.

23     In this regard, the defendant refers to an email sent by AIA to the claimant dated 5 January 2024 (the “AIA email”).[note: 8] The defendant refers to the following wording in the AIA email:

… As shared, for the onboarding of candidates with outstanding liabilities. Their outstanding liabilities for unsecured loans should not be more than $30,000. We will require the latest CBS report and declaration on whether they have any other unsecured loans for a financial soundness assessment. …

24     The defendant points out that the reference to a “CBS report” is to a Credit Bureau of Singapore report. It is well known that such a report will only show liabilities to financial institutions. The defendant’s argument is that AIA would require a further declaration from the defendant on whether he has “any other unsecured loans” for the purposes of the Financial Soundness Assessment. These other unsecured loans would include loans from third parties like the claimant. On the strength of the AIA email therefore, the defendant says that AIA would not consider the Financial Soundness Requirement to be limited to liabilities to financial institutions.

25     In other words, the defendant’s objection is not to the Loan been made for the purpose of reducing the defendant’s credit card debts and CPF liabilities. The defendant’s objection is to the Loan been made in order to give a false picture to AIA Singapore of the defendant’s financial soundness. The defendant’s case is that the Loan served the purpose of masking the defendant’s true level of unsecured debt so as to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. This is an illegal purpose.

26     The claimant on the other hand contends that for the Financial Soundness Assessment, AIA would only be concerned with the defendant’s liabilities to financial institutions as reflected in the CBS report in determining the defendant’s financial soundness.

27     The defendant’s response to this is that in light of the regulatory backdrop, it would be incredible if AIA were willing to certify the defendant’s financial soundness to MAS or countersign on his financial soundness to the ARB merely because the defendant had unsecured debts to financial institutions below S$30,000, while knowing that he had unsecured debts to other persons of another S$30,000.[note: 9]

28     Whilst I see the force of the defendant’s argument, in my view, the defendant has placed too much store in the wording of the AIA email set out above. Although the wording of the AIA email is certainly capable of the interpretation ascribed to it by the defendant, the key question is what were the steps that the defendant was required to undertake in the Financial Soundness Assessment. In this regard, the matters that the defendant was required to declare did not include a further declaration from him as to whether he has any other unsecured loans for the purposes of the Financial Soundness Assessment. The matters that the defendant was required to declare are set out in AIA’s fit and proper criteria declaration form (the “Form”).[note: 10] There are a total of 31 items of declaration in the Form covering various matters, including a number that concerns financial liabilities. However, there is no item that require the defendant to declare that he has no unsecured debt owed to persons other than financial institutions.

29     In other words, whilst the AIA email alluded to a declaration regarding “any other unsecured loans” for the purposes of the Financial Soundness Assessment, the Form shows that AIA in fact does not require a declaration of any unsecured debt owed to persons other than financial institutions. It also follows that AIA was prepared to certify the defendant’s financial soundness to the MAS or countersign on his financial soundness to the ARB on the basis that he did not owe unsecured debts to financial institutions in excess of $30,000, without the need to consider if he owed unsecured debts to other persons.

30     With that being the case, it cannot be said that the Loan Agreement was entered into with the object of Misleading AIA or Circumventing MAS Regulations.

31     In my view therefore, there is nothing objectionable in the claimant assisting the defendant to reduce his indebtedness to financial institutions. That the Loan enabled the defendant to pass the Financial Soundness Assessment does not render the purpose of the Loan illegal. The Loan was not given for the purpose of masking the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment.

32     It is of pertinence to bear in mind that it is not illegal to borrow money to repay and reduce debts. Refinancing a loan is not per se illegal, as the defendant admits.[note: 11] The claimant assisting the defendant to reduce his indebtedness to the banks is a different question from whether the Loan Agreement was entered into for illegal purposes.

33     I therefore find that the purpose of the Loan Agreement was not to mask the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. There is thus no reason why the Loan Agreement is not enforceable against the defendant.

Illegality

34     I have made the finding that the Loan Agreement was not entered into by the parties for illegal purposes and is enforceable against the defendant. My finding is sufficient for me to allow the claim against the defendant. However, for completeness I will briefly discuss the third issue. The third issue concerns the question of whether Misleading AIA or Circumventing MAS Regulations would be an illegal purpose such that the Loan Agreement would either (i) fall within one of the established categories of illegality at common law; or (ii) have been entered into with the object of committing an illegal act.

35     Both sides referred to the two leading cases on illegality, the Court of Appeal decisions in Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (“Ting Siew May”) and Ochroid Trading Ltd and another v Chua Siok Lui (trading as VIE Import & Export) and another [2018] 1 SLR 363 (“Ochroid”).

36     The claimant has helpfully summed up the underlying principles of the doctrine of illegality laid down in the two cases. They are as follows:

(a)     If the contract was prohibited under statute and/or an established head of common law public policy, there could be no recovery.

(b)     If the contract was not unlawful but entered into with the object of committing an illegal act, the principle of proportionality would be applied to determine if the contract is enforceable.

(c)     If the contract is not enforceable (whether due to (a) or (b) above), the benefits conferred thereunder may nevertheless be recoverable.

37     As regard what type of contracts may be prohibited under the established heads of common law public policy, it has been held in Ochroid that they include contracts that are made to commit a crime, tort or fraud. The Court of Appeal stated at [29]:

29    In so far as illegality at common law is concerned, the question is whether the contract falls foul of one of the established heads of common law public policy. The heads of public policy at common law which would render a contract unenforceable were developed over time. These include contracts prejudicial to the administration of justice (including contracts to stifle a prosecution and contracts savouring of maintenance or champerty); contracts to deceive public authorities; contracts to oust the jurisdiction of the courts; contracts to commit a crime, tort or fraud; contracts prejudicial to public safety; contracts prejudicial to the status of marriage (including marriage brokage contracts as well as agreements by married persons to marry and agreements between spouses for future separation); contracts promoting sexual immorality; contracts that are liable to corrupt public life; and contracts restricting personal liberty (see “Illegality and Public Policy” in ch 13 of The Law of Contract in Singapore (Andrew Phang Boon Leong gen ed) (Academy Publishing, 2012) (“Illegality and Public Policy in Singapore”) at paras 13.065–13.113).

[Emphasis in original]

38     The defendant’s case is that the Loan Agreement is ipso jure unenforceable because it is a contract to perpetrate a fraud on a third party, and thus prohibited at common law. The defendant further argues that even if the Loan Agreement were only a contract with an illegal object outside the established categories of common law illegality, refusing to enforce the contractual claim is a proportionate response to the illegal purpose in this case. In other words, the defendant is contending firstly that the contract is unlawful because it is to perpetrate a fraud; and second, if the contract is not unlawful, it is a contract entered into with the object of committing an illegal act.

39     In respect of contracts not prohibited under the established categories of common law illegality, but entered into with the object of committing an illegal act, the Court of Appeal stated in Ochroid at [35]-[36] as follows:

35    In particular, taking the cue from St John Shipping ([28] supra) once again, it was accepted that there is a broad and general category of contracts illegal at common law comprising contracts which are not unlawful per se but entered into with the object of committing an illegal act. This category depends on the intention of one or both of the contracting parties to break the law at the time the contract was made. It includes contracts entered into with the object of using the subject matter of the contract for an illegal purpose, contracts entered into with the intention of using the contractual documentation for an illegal purpose, as well as contracts which are intended to be performed in an illegal manner. This category also comprises contracts entered into with the intention of contravening a statutory provision, although not prohibited by that provision per se (at [43]–[45], [77] and [112]).

36    Having recognised this general category of common law illegality, the court acknowledged that it would be unjust to lay down a strict rule that all contracts falling within this broad category would be automatically unenforceable. There might be legal wrongs intended to be committed by one or more parties which are relatively trivial and it would be disproportionate to render the contract void and unenforceable in such situations (at [46]). Therefore, it was held that the application of the doctrine of illegality to this particular category of contracts is subject to the (limiting) principle of proportionality.

[Emphasis in original]

40     I turn first to the defendant’s contention that the Loan Agreement is a contract to perpetrate a fraud on a third party. Fraud in this context must mean that a tort of deceit or fraudulent misrepresentation has been committed by the claimant. In this regard, I have earlier examined the facts surrounding the Loan Agreement and concluded that the Loan Agreement was not entered into by the parties for the purpose of masking the defendant’s true level of unsecured debts in order to mislead AIA into believing that the defendant had passed the Financial Soundness Assessment. There is thus no evidence of deceit or fraudulent misrepresentation in the parties entering into the Loan Agreement.

41     In any case, to establish fraud the defendant will have to satisfy a relatively high standard of proof: Ting Siew May at [39] - [41]. Further, as pointed out by the claimant, the defendant has not pleaded any elements of the tort of deceit or fraudulent misrepresentation. I also note that there is no evidence adduced of any of the elements of deceit or fraudulent misrepresentation. I am unable to make a finding that fraud has been perpetrated on AIA by the parties entering into the Loan Agreement.

42     I turn next to the defendant’s alternative contention that the Loan Agreement was a contract with an illegal object. In this regard, as seen in Ochroid at [35], to establish that a contract was entered into with the object of committing an illegal act, it must have been the intention of one or both of the contracting parties to break the law at the time the contract was made. Breaking the law in this context includes parties using the contract in question for the various illegal purposes enumerated by the Court of Appeal in the passage. These include contracts entered into with the object of using the subject matter of the contract for an illegal purpose, contracts entered into with the intention of using the contractual documentation for an illegal purpose, as well as contracts which are intended to be performed in an illegal manner. Stemming from my earlier finding that the Loan Agreement was not entered into by the parties to mislead AIA, the Loan Agreement does not fall into any of the categories of illegal purposes. I am thus unable to agree that it is a contract with an illegal object.

43     I have dealt with the third issue, and the remaining agreed issue is whether the Loan Agreement remains enforceable if the Loan Agreement was entered into for the purpose of Misleading AIA or Circumventing MAS Regulations. This issue concerns the question of the principle of proportionality as discussed by the Court of Appeal in Ochroid at [36], and Ting Siew May at [46], [66], [77]. As I have made the finding that the Loan Agreement was not entered into for the purpose of Misleading AIA or Circumventing MAS Regulations; and that it was not prohibited under an established head of common law public policy, nor entered into with the object of committing an illegal act, I do not propose to discuss the remaining issue.

Conclusion

44     In the premises of the above, I am unable to agree with the defendant that the Loan Agreement is unenforceable. It is for the defendant to prove on a balance of probabilities that the Loan Agreement is a contract that falls within one of the established situations of common law illegality or entered into with the object of committing an illegal act. The defendant has failed to discharge his burden in doing so.

45     I accordingly allow the claim, with interest at 5.33% per annum from the date of the originating claim to the date of judgment.

46     As for the question of costs, I note that the applicable range of costs set out in Pt 5 of App 1 of the Rules of Court 2021 is $3,000 to $6,000. Taking into consideration the value and nature of the claim, the amount of work done by parties, and the principle of proportionality, I fix costs at $3,500 all-in to be paid by the defendant to the claimant.

[note: 1]See Practice Direction 52 of the State Courts Practice Directions 2021.

[note: 2]These terms are in accordance with the guidelines set out in Form 16 of the State Courts Practice Directions 2021.

[note: 3]Pursuant to MAS Notice 211.

[note: 4]Section 26(1)(b) of the Financial Advisers Act 2001.

[note: 5]MAS Guidelines on Fit and Proper Criteria FSG-G01.

[note: 6]Under the General Insurance Agents' Registration Regulations.

[note: 7]Para 1 of the defendant’s written submissions; paras 8, 12, 13 & 31 of defence.

[note: 8]AB Tab 39.

[note: 9]Para 18 of the defendant’s written submissions.

[note: 10]Pg 68-70 of the claimant’s AEIC.

[note: 11]Para 11 of defendant’s written submissions.

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Hong Seh Yachting Pte Ltd v Loo Leong Thye
[2024] SGDC 253

Case Number:District Court Originating Claim No 613 of 2023, HC/DCA No. 16 of 2024
Decision Date:27 September 2024
Tribunal/Court:District Court
Coram: Teo Guan Siew
Counsel Name(s): Mr Tay Wei Loong Julian,Mr Dominic Kwok Chong Xin and Mr Lim Liang You Matthew [Lee & Lee] for the claimant; Mr Phua Cheng Sye Charles and Ms Noor Heeqmah Binte Wahianuar [PKWA Law Practice LLC] for the Defendant
Parties: Hong Seh Yachting Pte. Ltd. — Loo Leong Thye

Contract – Contractual terms – Parol evidence rule – Whether there was collateral oral agreement

[LawNet Editorial Note: An appeal to this decision has been filed in HC/DCA 16/2024.]

27 September 2024

District Judge Teo Guan Siew:

Introduction

1       This case concerned the sale of a yacht from the claimant to the defendant, with the trade-in of the defendant’s existing yacht as part payment of the purchase price. The dispute was whether the defendant acted in breach of contract by not handing over his existing yacht to the claimant by a certain stipulated date.

2       I granted judgment for the claimant. The defendant has filed an appeal against my decision.

The Parties’ cases

Claimant’s case

3       The claimant’s case was relatively straightforward. It relied on the written Sale and Purchase Agreement (“the SPA”) signed by the parties, under which the defendant had agreed to purchase a new yacht, the Navetta 30 (N30) from the claimant for the price of Euro 9,338,532.[note: 1] In particular, the claimant relied on the following express terms in the SPA:

(a)     The defendant would trade in his used yacht, the Ferretti 850 (F850) at the trade-in price of Euro 3.5m, and this would constitute part payment of the purchase price of the N30.

(b)     According to the payment schedule, the F850 would be handed over to the claimant on or by 31 July 2022.

(c)     The delivery date for the new vessel N30, ex-yard in Italy, was estimated to be 31 August 2022, and the delivery date of the N30 in Singapore was estimated to be November 2022.

4       It was undisputed that the defendant did not hand over the F850 to the claimant by 31 July 2022, the deadline stipulated in the SPA. Instead, the defendant handed over the F850 only on 6 December 2022, when the new vessel the N30 was delivered to him in Singapore.

5       Since the trade in of the F850 constituted part payment of Euro 3.5m towards the purchase price, it was the claimant’s case that the defendant’s failure to hand over the F850 by 31 July 2022 meant that the defendant was in breach of the SPA in making late payment. Accordingly, the claimant sought late payment interest at the agreed contractual rate on the sum of Euro 3.5m for the period from 31 July 2022 to 6 December 2022, amounting to $137.331.02.

6       In addition, the claimant sought reimbursement from the defendant for certain berthing charges it had paid to a third party, Mr Su Shuiming (“Mr Su”). This arose because the claimant had contracted to sell the F850 to Mr Su. Due to the defendant’s refusal to hand over the vessel by 31 July 2022, the claimant was unable to deliver the F850 to Mr Su by their contractually agreed date. As a result, the claimant ended up paying Mr Su berthing charges the latter incurred during the period of delay when the F850 was not delivered.

Defendant’s case

7       The defendant’s case rested essentially on certain representations that were supposed to have been made to him by the claimant’s representatives, Ms Della Pearce (“Ms Della”) and Mr Edward Tan (“Mr Edward”). These were:[note: 2]

(a)     The N30 would arrive in Singapore sometime in July 2022 (“the first representation”);

(b)     The handover of the F850 would only occur upon the arrival of the N30 in Singapore (in other words, that the handover of the two vessels would be concurrent) (“the second representation”);

(c)     The handover date of 31 July 2022 for the F850 as stated in the SPA was premised on the claimant’s estimate that the N30 would be delivered on or before 31 July 2022 (“the third representation”); and

(d)     In the event there was delay in the delivery of the N30 to the defendant in Singapore, the handover date of 31 July 2022 for the F850 would not be enforced by the claimant against the defendant (“the fourth representation”).

(collectively, “the Representations’)

8       While the Representations form the cornerstone of the defendant’s factual case, the pleaded Defence was however conceptually and legally unclear. The Defence simply stated that the defendant was not in breach of the SPA by virtue of the Representations, but the legal basis for saying so was not clear.[note: 3] The defendant also pleaded that the Representations were false, made negligently by the claimant, and had induced the defendant into entering into the SPA.[note: 4] Insofar as the language used suggested that the defendant was pleading misrepresentation (whether fraudulent or negligent), there were difficulties. First, all of the Representations pertained to future events or promises, not statements of existing or past facts. The Representations were therefore not of a nature that generally constitute actionable misrepresentation in law: Tan Chin Seng v Raffles Town Club Pte Ltd [2003] 3 SLR(R) 307 at [21]-[22]. Second, since the Representations related to what was going to happen in the future, it was difficult to see how they could be said to be false at the time they were made, at any rate not without particulars of how and why the claimant’s representatives would or should have known at the material time that what they represented were untrue; and there were no such particulars, whether in pleadings or evidence. Further, the purpose of pleading misrepresentation was not even clear – the defendant was certainly not seeking to rescind the contract since he took delivery of the N30; neither was he counterclaiming for damages.

9       It was only at the hearing of the trial and in closing submissions that the defence based on a collateral oral agreement emerged. According to this defence, the Representations by the claimant, particularly that on concurrent handover, were agreed upon orally between parties, such that there was no breach of contract by the defendant in not handing over the F850 by the stipulated date in the SPA.

10     The other aspect of the Defence was that by virtue of the fourth representation, namely that the claimant would not enforce the F850 handover date if the N30’s delivery was delayed, the claimant was estopped from making its current claim against the defendant.[note: 5]

Issues

11     The two main issues before me were: (a) whether the defendant could rely on a collateral oral agreement; and (b) whether he could rely on the doctrine of promissory estoppel.

Whether defendant could rely on a collateral oral agreement

12     The existence of a collateral oral agreement was not clearly pleaded in the Defence, and therefore no particulars were given of such an agreement in the pleadings. Even in the defendant’s opening statement and closing submissions, there was a lack of specificity as to what the terms of this alleged oral agreement were. Be that as it may, I analysed this defence on the basis that the Representations I set out above, formed the terms of the alleged collateral oral agreement.

Parol evidence rule

13     The parol evidence rule, which is codified under ss 93 and 94 of the EA, prohibits the admission of extrinsic evidence to prove the terms of a written contract, and in particular, oral evidence cannot generally be admitted to contradict, vary, or add to those terms.

14     In the present case, the terms of the alleged collateral oral agreement, specifically the first and second representations, contradicted or varied the express terms of the SPA. This was clear from the two cover pages of the SPA which summarised the key provisions.[note: 6] First, under the SPA, the delivery date for the N30 was stated to be “[e]stimated 31 August 2022” in Italy and “[e]stimated November 2022” in Singapore. The first representation, in warranting that the N30 would arrive in Singapore in July 2022, even before the estimated date of delivery in Italy, clearly contradicted or varied the term on delivery date of the N30 under the SPA. In this regard, I did not accept the defendant’s argument that there was no contradiction simply because the dates in the SPA were estimates. Whereas under the SPA the claimant only needed to deliver the N30 in Singapore within a certain estimated time frame, the first representation sought to bind the claimant to a fixed, and much earlier deadline of July 2022 for the vessel to arrive in Singapore. The second representation on concurrent delivery contradicted the express term in the SPA obliging the defendant to hand over the F850 latest by 31 July 2022. This was because the alleged concurrent delivery term of the oral agreement would mean that the defendant was no longer bound to hand over his old vessel by the stipulated date in the SPA – instead, he could choose to hand over much later, depending on when the N30 arrived in Singapore.

15     There are, however, exceptions or provisos to the parol evidence rule as reflected in s 94. Proviso (b) states:

(b)    the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved; in considering whether or not this proviso applies, the court is to have regard to the degree of formality of the document.

[emphasis added]

16     In my view, this proviso was not applicable on the facts of the present case. First, the SPA had a significant degree of formality: it was a written document prepared with the claimant’s letterhead, and signed by both the defendant and the claimant with its company stamp. Its first two pages summarised the key terms, with the details set out in the General Conditions section of the document that followed. The formal nature of the SPA was one factor against allowing the introduction of extrinsic evidence by way of an oral agreement. Second, the alleged collateral agreement did not deal with any matters on which the written contract was silent. Instead, the Representations all dealt with the delivery and handover dates of the N30 and the F850 respectively, which were matters already expressly catered for in the SPA. Third, the Representations which allegedly formed the terms of the oral agreement were inconsistent with the express terms of the SPA.

17     Under clauses 5.3 and 5.4 of the SPA,[note: 7] delivery of the N30 to the buyer shall take place only after the seller has received all amounts due in accordance with the contract and until then, the seller shall retain possession and ownership of the yacht. Under the payment schedule in the SPA, the final payment was to be made by 31 August 2022.[note: 8] This meant that even if the N30 arrived earlier than expected, the earliest time for the yacht to be delivered to the defendant would still be 31 August 2022 when the final instalment and full payment was made. By insisting on concurrent delivery possibly as early as on 31 July 2022, the alleged oral term would be inconsistent with the detailed clauses on the terms of delivery in the SPA.

18     This alleged oral agreement for concurrent handover enhanced the defendant’s contractual position (because he would no longer be bound by a fixed date for handover of his F850). At the same time, it added to the contractual obligations and reduced the contractual rights of the claimant (because the claimant had to ensure delivery of the N30 by July 2022 instead of the estimated time frame of Nov 2022 and it could not take over the F850 until the N30 arrived). The law is clear that if the collateral agreement adds to or reduces the rights and obligations of the parties, it would be inconsistent with the written agreement: Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR(R) 77 at [15]; Latham Scott v Credit Suisse First Boston [2000] 2 SLR(R) 30 at [21]-[22]; Chai Kwok Seng Anthony v CCM Group Limited [2013] SGHC 208 at [52]-[54].

19     In addition to proviso (b), the defendant also relied on proviso (f) to s 94, which brings into play the contextual approach to contractual interpretation that permits extrinsic evidence to be considered. The defendant argued that such a contextual approach under proviso (f) is called for because there was ambiguity in the terms of the SPA relating to the delivery of the N30 (relying on Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 at [111]). The first problem with the defendant’s argument was a matter of pleadings and civil procedure. To guard against an overly expansive recourse to all manner of extrinsic evidence, the Court of Appeal in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (at [72]-[73]) imposed strict requirements of pleading on any party who seeks to invoke the contextual approach, including in particular the need to plead with specificity each fact of the factual matrix the party wish to rely on in support of the construction of the contract and sufficient particulars of the circumstances under which such facts were known to the contracting parties. None of these particulars were pleaded – in fact, the Defence did not even say that there was ambiguity in the SPA.

20     In any event, my view was that there was no ambiguity in the SPA at all in relation to the delivery of the N30. The mere fact that an estimated time frame, instead of a fixed date, was given did not make the term regarding the delivery of the N30 ambiguous. This was not a case where there were words used or statements made which were capable of different meanings or interpretation. The term meant exactly what it said, namely that the delivery of the N30 was estimated to be on 31 August 2022 in Italy and in November in Singapore. The parties essentially agreed on an estimated time frame – there was nothing ambiguous about that. Indeed, it was understandable, and perhaps even to be expected, that because this was a new vessel that was being built, the claimant was not in a position to warrant a fixed date for delivery at the point of the signing of the SPA, since it would still take a considerable length of time from that point till when the N30 is ready. That was also why it was stated expressly under clause 4.1 that the actual date of delivery would be the one stated in the Notice of Delivery to be subsequently issued.[note: 9]

21     Accordingly, my view was that proviso (f) likewise did not assist the defendant.

22     Finally, and rather curiously, the defendant’s submissions also referred to proviso (a) to s 94 and in that context the case of Exklusiv Auto Services Pte Ltd v Chan Yong Chuan Eric [1995] 3 SLR(R) 728. Any reliance on proviso (a) was misplaced, because that dealt with when a party was allowed to adduce oral evidence to prove facts that would invalidate the contract, which was not what the defendant was seeking. Insofar as the issue of a separate oral agreement was concerned, the High Court in that case in fact held (at [19]) that the oral representations there were inadmissible because of proviso (b), as those representations were inconsistent with the written contract. This, in the court’s view, precluded the finding that there was a separate oral agreement. The case was ultimately decided on whether there was misrepresentation which invalidated the contract so as to entitle the party misled to an order for rectification of the contract (at [20]). But that was not the defendant’s case here.

23     For the above reasons, in my view, the parol evidence rule applied in the present case so as to preclude any attempts by the defendant to introduce evidence of the alleged collateral oral agreement. This was sufficient to deal with this aspect of the defence, but for completeness and in case I was wrong on the applicability of the parol evidence rule, I went further to examine the evidence that emerged at trial to determine whether the claimant’s representatives did make those Representations and agreed on them with the defendant prior to the signing of the SPA.

Whether the Representations were made and agreed upon

24     Even though the defendant claimed that there were multiple occasions when the Representations were allegedly made to him, he only particularised three such occasions – namely, on 2 July 2021 (when the second representation on concurrent delivery was supposed to have been made to him by Ms Della), on 23 Dec 2021 (when both Ms Della and Mr Edward allegedly made the Representations to him orally just before the signing of the SPA), and on 25 March 2022 (in the form of Ms Della’s phone message to him to the effect that the N30 would be ready in July and he would not be without a boat like the previous time in the case of the Riva 75).[note: 10] To the extent that the defendant’s case was that the Representations induced him to enter into the SPA and were agreed upon orally before the signing of the SPA, only the first two occasions would be directly relevant. The phone message on 25 March 2022, like the other post-contract correspondence (which I will deal with later), could at most constitute evidence from which it might be inferred that the parties had a collateral oral agreement prior to signing the SPA.

25     It was of significance that there was no contemporaneous documentary evidence at all of the Representations having been made prior to the signing of the SPA, other than arguably the phone message that the defendant sent to Ms Della on 2 July 2021.[note: 11] That phone message was however the defendant’s own description of the discussion on 2 July. Ms Della did not reply to agree or confirm, and instead said she would document everything they spoke about in the Letter of Intent (“the LOI”) for his review. The defendant argued that Ms Della was effectively silent, and that such silence constituted a representation that there would be concurrent handover. I will return to this point shortly. But for present purposes, the fact of the matter was that all the available contemporaneous documentary evidence leading up to the signing of the SPA pointed in the other direction – that there was no such collateral agreement for concurrent handover.

26     In the LOI of 5 July 2021 shortly following the 2 July discussion,[note: 12] the draft SPA and cover email on 20 August 2021,[note: 13] the defendant’s email in reply the next day on 21 August,[note: 14] as well as the final SPA itself on 23 December 2021,[note: 15] no mention was made of concurrent handover or any of the other alleged representations. The defendant is an experienced businessman. If concurrent handover was of such crucial importance to him and had been agreed upon between parties, he would have insisted that this be reflected by the claimant in the final SPA, or even if not in the final SPA, at least recorded in writing separately at some point in time throughout the almost six months period between his initial discussion with Ms Della in July and the signing of the SPA in December. The defendant alluded to his trust in the claimant, having previously purchased another yacht, the Riva 75, from them. The parties might have enjoyed a good relationship, but this was still a commercial transaction involving substantial value. Moreover, according to the defendant, he was actually unhappy with his purchase of the Riva 75 because the vessel arrived only after he had handed over his old yacht, which meant he was without a yacht for some time. Given his earlier experience with the Riva 75, if the defendant indeed managed to agree with the claimant that this time the handover had to be concurrent, he would certainly have made sure that this important term be inserted into the SPA. The defendant had more than ample time and opportunity to do so, as could be seen from how he made other changes to the draft SPA such as on the exchange rate and certain specifications of the yacht.[note: 16]

27     I come now to the post-contract correspondences that the defendant relied on, and his argument that silence on the part of Ms Della and Mr Edward amounted to representations. The case law and arguments cited by the defendant were concerned with silence in the context of a claim in misrepresentation. It was not obvious whether the same legal principles even apply to the defence in the present case which was based on a collateral oral agreement. In any case, for misrepresentation by silence to be established, mere silence is insufficient and it must be shown that there was a willful suppression of material and important facts by the representor: Trans-World (aluminium) Ltd v Cornelder China (Singapore) [2003] 3 SLR(R) 501 at [66]. The defendant failed to plead, or establish at trial, what such material or important facts were suppressed or deliberately withheld from him by the claimant’s representatives.

28     On the other hand, the claimant’s representatives gave explanations for each of the instances when they were alleged to have remained deliberately silent. I deal first with the 2 July 2021 phone messages, followed by the post-contract correspondences.

29     As mentioned above, in response to the defendant’s message on 2 July 2021 that the “handover of Ferretti [be] at the same time”, Ms Della stated that she would document everything they discussed at the meeting in the LOI for the defendant’s review. Ms Della explained that while concurrent handover might possibly have been on the defendant’s wish list, this was never discussed or agreed upon at the 2 July 2021 meeting.[note: 17] This was because such an arrangement would not be commercially viable for the claimant who would have needed time to sell the used vessel the F850 to fund the purchase of the new vessel the N30.[note: 18] Her explanation was consistent with the reason given by Mr Edward for why the claimant would not have agreed to the concurrent handing over of the F850 only upon the N30’s arrival.[note: 19] Ms Della further explained that because the defendant was a long-time customer of the claimant whereas she was just an employee of the claimant, she did not want to directly contradict the defendant and risk offending him, which accounted for why she chose to instead couch her reply with reference to how she would record the points of discussion in the subsequent LOI.[note: 20]

30     After the signing of the SPA, there were further exchanges between the parties. The defendant’s argument was that in these exchanges, the failure of the claimant’s representatives to disabuse him of his expectation of concurrent handover amounted to a representation of the same. Specifically, in the context of certain phone messages from Ms Della on 3 March 2022 regarding an inventory check of the F850 and how the new owner Mr Su offered to pay for any defects after the check, the defendant responded to Ms Della stating that there was no need for the new owner to take such responsibility “as still got 6-8 months”.[note: 21] According to the defendant, his message implied that he would not deliver the F850 to the claimant by 31 July 2022 (presumably because he meant he would still be holding on to the F850 for six to eight months from 3 March 2022, ie till September to November), and that Ms Della’s failure to refute his message constituted a representation that there would be concurrent handover. However, as Ms Della explained, the defendant’s message was vague and she would not have read it as suggesting that the defendant would not be complying with the term in the SPA on the handover date for the F850.[note: 22] Moreover, it should be highlighted that the defendant’s position in relation to this message was inconsistent with his own case that the claimant had represented to him that the N30 would be ready in July for the concurrent handover with the F850.

31     As for the defendant’s email of 13 March 2022 to Ms Della stating “[l]et me enjoy in peace till the arrival of Navetta 30”,[note: 23] Ms Della explained that this email was sent around the time when the claimant was exploring with the defendant the possibility of an earlier handover of the F850 before the contractually stipulated date of 31 July 2022, because the buyer of the F850, Mr Su, had requested for earlier use of the yacht. As such, she did not interpret what the defendant said to mean that the F850 would be handed over only when the N30 arrived, but rather that the defendant wanted the claimant to stop troubling him with the request for the defendant to hand over the F850 before 31 July 2022.[note: 24] Her evidence was corroborated by Mr Edward who similarly testified that this was the period of time when the defendant was getting increasingly irritated by the claimant’s request for an earlier handover to facilitate the use of the F850 by Mr Su.[note: 25] It should be noted that Ms Della’s explanation was also consistent with the other parts of the defendant’s email, in particular his statement that he wanted “[n]o more discussion on temporary uses from your buyer, period”. It was further telling that the defendant started his email by saying “[l]et abide by the contract we signed on the handover of Feretti 850”, which was a clear reference to the SPA (the only contractual document that was signed), and not any collateral agreement on concurrent delivery.

32     I come to the phone message on 25 March 2022,[note: 26] in which the defendant claimed Ms Della had made the second representation to him, namely that on concurrent handover. The material parts of Ms Della’s phone message to the defendant read as follows:

anyway Mr Loo, I wanted to speak to you personally because I think previously I misinterpreted my message to you wrongly. Your Navetta 30 will be ready in July and on the contract I also asked for your yacht only on 31st July 2022, this does not change at all just to clarify with you.

Ferreti 850 is still yours until 31st July 2022. I am wondering if once in a while you can allow the other party to use the boat? Of course only when you are not using. There is no change of ownership or title, its yours. Only a very small favour once in a while you allow them to go out.

Maybe we gave you impression you had to give up your boat and will be without a boat like your Riva 75 last time, but I promise you this is not the case at all.

33     The defendant argued that Ms Della’s reference to “your Navetta30 will be ready in July” was a representation of concurrent handover in Singapore in July. However, Ms Della explained that what she meant was that the N30 would be ready in July in Italy for arrangements such as surveying to be done, in line with the estimated time frame in the SPA for the vessel to be ready ex-yard Italy by 31 August, and not that the vessel would arrive in Singapore in July.[note: 27] Her explanation was consistent with the earlier messages she had sent to the defendant in March, where she had reminded him to make arrangement such as sending his captain and technical team to Italy for training.[note: 28] In addition, the claimant’s Mr Alfred Tan sent an email to the defendant on 16 March 2022,[note: 29] nine days before Ms Della’s message of 25 March 2022, in which it was stated clearly that the N30 would be ready in Ancona, Italy in July 2022. This further reinforced the fact that Ms Della had to have been referring to the vessel being ready in Italy, not Singapore, in July. Given that it would take time for the N30 to be brought from Italy to Singapore, and the defendant himself acknowledged at trial that this could take approximately two months, it was therefore highly unlikely that the defendant would have interpreted Ms Della’s message to mean that the N30 would arrive in Singapore in July.

34     In respect of Ms Della’s comment that the defendant would not be left without a yacht like the previous time when he sold the Riva 75, firstly, her message was sent in the context of the claimant’s request to the defendant for Mr Su to be allowed to use the vessel on occasion before the handover date of 31 July 2022, and Ms Della was clarifying that the defendant would of course remain the owner the F850 and not be without his yacht till 31 July 2022. Also, as Ms Della explained in her evidence, there would be a difference from the previous case of the Riva 75 because the time gap of about three months this time round between the handover of the used vessel (the F850) and the delivery of the new vessel (the N30) would be considerably shorter compared to the previous case of the Riva 75, when the lapse of time between handover and delivery was six to seven months.[note: 30]

35     In summary, I disagreed with the defendant’s submission that the reasons and explanations given by the claimant’s representatives in relation to the above emails and phone messages were not credible. In my view, their explanations were coherent and generally consistent with contemporaneous documentary evidence. In this connection, I also disagreed with the defendant counsel’s submission that the claimant’s representatives, Ms Della and Mr Edward were evasive witnesses who lacked candour.

36     The defendant’s principal attack on Ms Della’s credibility pertained to her evidence on the issue of whether there were others present during her discussions with the defendant at his office. The defendant called as witnesses three of his friends – Mr Choo Wee Ming (“Mr Choo”), Mr Tan Han Pin, Collin (“Mr Tan”) and Mr Wang Pin Hsun (“Mr Wang”) – who each testified that they had been present at meetings between the defendant and Ms Della. In particular, Mr Tan produced photographs,[note: 31] which he claimed he had taken on one such occasion, showing the defendant and Ms Della in discussions. Ms Della’s evidence, on the other hand, was that all her discussions with the defendant on his purchase of the N30 were with the defendant alone,[note: 32] and she could not remember there being others present in the defendant’s office during those discussions.[note: 33] She also testified that she did not even know Mr Tan or Mr Wang.[note: 34]

37     Ms Della’s evidence that the actual discussions took place only between her and the defendant was not seriously disputed by the defendant. Indeed, none of the three defendants said that they took any active part in the discussions, and neither were they introduced to Ms Della. Given that none of them participated in the discussions, it would not have been of significance to Ms Della whether or not they were present. That being the case, contrary to the defendant’s contention, it was not unbelievable for Ms Della to not have paid attention to whether there were other unknown persons in the office and to not be able to subsequently recollect their presence (if they were indeed there).

38     The defendant’s counsel made various references to other parts of Ms Della and Mr Edward’s testimonies to argue that they were evasive or overly wary, such as in relation to the 2 July 2021 meeting and the messages that followed thereafter. However, in my assessment, the two witnesses were simply firm and consistent in their evidence, for example, in rejecting the defendant counsel’s position that the defendant’s phone message that day constituted the only documentary record of what transpired at the meeting. This was because both witnesses took the view that the subsequent LOI three days thereafter documented the precise terms that were discussed on 2 July 2021. The fact that witnesses did not readily agree to the cross-examiner’s questions, and were assertive or forceful in their disagreement, did not mean that they were overly wary or lacking in candour.

39     I turn next to the evidence of the defendant’s three witnesses, who were called to testify to what they supposedly heard during meetings between the defendant and Ms Della. According to Mr Choo’s and Mr Tan’s evidence, they heard assurances from Ms Della to the effect that the defendant would not be without a yacht because there would be concurrent delivery of the new yacht and handover of the old one.[note: 35] In the case of Mr Wang, he was supposed to have heard Ms Della inform the defendant that the claimant would not take legal action against him.[note: 36]

40     As a preliminary point, I did not accept the claimant counsel’s objections that their evidence were inadmissible because they were not pleaded and constituted hearsay. What these witnesses might have personally heard or witnessed were a matter of evidence that went towards proving that the alleged representations were made – they did not strictly need to be pleaded; and neither did they constitute hearsay.

41     In evaluating their evidence, at a general level, the material events happened a considerable amount of time ago and these defendant’s witnesses were of course not the actual parties to the transaction in question; instead, they were just bystanders who were supposed to have overheard certain conversations. As such, the accuracy and reliability of their recollection of exact words could be called into question.

42     At a specific level, Mr Choo’s evidence was vague and not clear as to dates of the meetings when he was allegedly present. He eventually said under cross-examination that for the last meeting at which he was supposedly present, Mr Tan was also there.[note: 37] According to Mr Tan’s evidence, he was around at only one meeting between Ms Della and the defendant, on 2 July 21.[note: 38] As such, for both witnesses, their evidence related only to what allegedly transpired several months before the signing of the SPA, and were not probative as to what were further discussed and agreed upon leading up to the signing of SPA. As for Mr Wang, he claimed to have remembered the exact words spoken by Ms Della: supposedly Ms Della said “Don’t worry, we will not take legal action against you”. Yet he could not provide any context or background of the conversation; indeed, it would seem strange, and no explanation was given, as to why Ms Della would even be talking about the issue of legal action in the first place since this was the occasion of the signing of the SPA.

43     Accordingly, I gave little weight to the evidence of the three defendant witnesses.

44     Ultimately, while the defendant’s submissions chose to focus on witness credibility, it was clear that the courts placed greater weight on available objective documentary evidence when ascertaining whether there was an agreement reached: Ng Chee Chuan v Ng Ai Tee (administratrix of the estate of Yap Yoon Moi, deceased) [2009] 2 SLR(R) 918 at [19]; OCBC Capital Investment Asia Ltd v Wong Hua Choon [2012] 4 SLR 1206 at [41]. In the present case, the objective documentary evidence were consistent with and supported the testimonies of the claimant’s witnesses Ms Della and Mr Edward.

45     My finding of fact, based on my evaluation of all the evidence at trial – both objective documentary evidence and the testimonies of the witnesses – was that there was no collateral oral agreement between the parties on the terms of the Representations. The defendant might have expressed his wish for concurrent handover so as to not be without a boat, but my finding was that the claimant representatives made no such representations or assurances to him and parties did not come to an agreement that the F850 would be handed over only when the N30 arrived.

46     Therefore, the defence based on a collateral oral agreement failed both as a matter of law and fact.

Whether the defendant could rely on the doctrine of promissory estoppel

47     Given my finding that none of the Representations were made, which would include the fourth representation that formed the alleged promise for the purpose of the defendant’s reliance on promissory estoppel, this defence fell away as well.

48     But for completeness, my view was that the defendant’s argument was legally flawed in any case. To the extent the defendant claimed that the promise was made to him prior to the signing of the SPA, there would have been no pre-existing legal relationship at that time. It would therefore not be possible for there to be a promise not to enforce a term of the contract or any existing right, because none existed at that point in time. Even if the defendant’s case was that such representation continued to be made to him after the coming into effect of the SPA, there was no detrimental reliance on his part. By paying the claimant pursuant to the terms of SPA, the defendant was just doing what he was contractually obliged to do. Conversely, there was no advantage or benefit to the claimant in addition to what it was contractually entitled to. The defendant’s argument that the advantage was securing the defendant’s agreement to purchase the N30 is wrong, because the inquiry is what additional benefit the claimant might have obtained post-contract, and there was none.

49     For the foregoing reasons, neither of the two defences could succeed. I found that the claimant proved its case against the defendant for breach of the SPA in his late handing over of the F850.

Reliefs

50     As the trade-in of the F850 constituted part payment towards the purchase of the N30, it followed that there was late payment by the defendant. Under the SPA, late payment interest is payable. The defendant argued that the claimant did not prove it had suffered any loss arising from the late handover. However, a claim for contractual interest is distinct from a claim for damages and does not require proof of loss. The defendant did not challenge the rate of late payment interest on other grounds.

51     As for the berthing charges that the claimant paid to the third party buyer of the F850, I was satisfied that this was a direct loss sustained by the claimant in consequence of the defendant’s breach of contract in handing over the F850 late.

52     Accordingly, I granted judgment in favour of the claimant against the defendant in respect of: (a) the sum of $137,331.02 being contractual interest on the sum of Euro 3.5m; and (b) the sum of S$40,286.73 being damages in respect of the berthing charges that the claimant had paid to the third party buyer.

[note: 1]AB 80-174.

[note: 2]Defence (Amendment No. 2) at para 9.2, AB 32-33.

[note: 3]Defence (Amendment No. 2) at para 9.4, AB 34.

[note: 4]Defence (Amendment No. 2) at para 9.5-9.7, AB 34-35.

[note: 5]Defence (Amendment No. 2) at para 9.8, AB 35.

[note: 6]AB 81-82.

[note: 7]AB 85.

[note: 8]AB 81.

[note: 9]AB 84.

[note: 10]Defence (Amendment No. 2) at para 9.3, AB 33-34.

[note: 11]AB 181.

[note: 12]AB 59-61.

[note: 13]AB 230.

[note: 14]AB 230.

[note: 15]AB 80-174.

[note: 16]In his email dated 21 August 2021: AB 230.

[note: 17]NE 22 April 2024 at p 17 (line 19) to p 18 (line 24).

[note: 18]Ms Della’s AEIC at [7]: BA 209; NE 22 April 2024 at p 21 (lines 11 to 14).

[note: 19]Mr Edward’s AEIC at [10]: BA 7.

[note: 20]NE 22 April 2024 at p 20 (lines 2 to 12).

[note: 21]AB 185.

[note: 22]NE 22 April 2024 p 62 (line 28) to p 63 (line 14).

[note: 23]AB 186.

[note: 24]NE 22 April 2024 p 53 (line 24) to p 54 (line 4).

[note: 25]NE 22 April 2024 p 92 lines 1 to 9.

[note: 26]AB 192.

[note: 27]Ms Della’s AEIC at [26]: BA 217-218.

[note: 28]AB 190.

[note: 29]AB 187-189.

[note: 30]Ms Della’s AEIC at [27]: BA 218.

[note: 31]DBD 9-11.

[note: 32]Ms Della’s AEIC at [29]: BA 219.

[note: 33]NE 22 April 2024 p 25 (line 15) to p 26 (line 9).

[note: 34]NE 22 April 2024 p 39 (line 4) to p 40 (line 4). Ms Della was not asked specifically about whether she knew Mr Choo.

[note: 35]BA 295; BA 302.

[note: 36]BA 309.

[note: 37]NE 24 April 2024 p 50 lines 4 to 10.

[note: 38]NE 24 April 2024 p 9 lines 19 to 27.

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Public Prosecutor v Siti Maryam Binte Mohamed Zubir
[2024] SGDC 260

Case Number:District Arrest Case No 906240 of 2024 and 4 Others, Magistrate's Appeals No 9179-2024-01
Decision Date:01 October 2024
Tribunal/Court:District Court
Coram: Lee Lit Cheng
Counsel Name(s): Lim Yi Neng, Ryan (Attorney-General's Chambers) for the Public Prosecutor; The Accused unrepresented.
Parties: Public Prosecutor — Siti Maryam Binte Mohamed Zubir

Criminal Procedure and Sentencing – Sentencing – Statutory offences – Section 417 Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Sentencing Advisory Panel Guidelines for Scams-Related Offences – Handing over control of bank account to others

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9179/2024/01.]

1 October 2024

District Judge Lee Lit Cheng:

Introduction

1       The 23-year-old Accused responded to a Telegram message from an unknown individual who promised her profits in exchange for opening bank accounts and relinquishing control of them. She then opened three bank accounts and handed them over to this unknown person without knowledge of their intended use.

2       Without the Accused's knowledge, those who gained control of the three bank accounts she had relinquished proceeded to open two additional bank accounts (“the two additional accounts”) using the details of the original accounts that the Accused had relinquished.

3       The Accused pleaded guilty to a charge under s 417 read with s 109 of the Penal Code 1871 (“PC”) for abetting by engaging in a conspiracy with an unknown person to cheat United Overseas Bank (“UOB”) by deceiving the bank that she would be the sole operator of the bank account that she had applied for. Four other charges were taken into consideration (“TIC”): two similar abetment of cheating charges relating to two other bank accounts and two charges under s 3(1) read with s 12(1) and s 14 of the Computer Misuse Act 1993 (“CMA”) for abetting the unknown person to secure access to her bank accounts by providing her login credentials.

4       The Prosecution submitted that the Guidelines for Scams-Related Offences published by the Sentencing Advisory Panel of Singapore in August 2024 (“the Guidelines”) provided guidance on the appropriate sentence to be imposed and sought a term of 10 to 14 months’ imprisonment.

5       I agreed with the Prosecution that the Guidelines were relevant. Drawing upon the Guidelines pertaining to cases where an offender relinquishes control of their bank account to another party without taking reasonable steps to ascertain that party’s purpose of accessing, operating or controlling the account, I sentenced the Accused to seven months’ imprisonment.

6       The two main reasons for imposing a sentence lower than that sought by the Prosecution were my disagreement with their submissions regarding: (a) the extent of the sentencing uplift for the three bank accounts that were opened and handed over by the Accused; and (b) the Prosecution’s proposal that an uplift should be made for the two additional accounts even though they were not handed over by the Accused.

7       The Prosecution, dissatisfied with the sentence, has filed an appeal.

Charges

8       The Accused opened and handed over the following three bank accounts to the unknown person:

(a)     United Overseas Bank account number ending with 963 (“UOB account”);

(b)     Commerce International Merchant Bankers Group Holdings Berhad account number ending with 185 (“CIMB account”); and

(c)     Standard Chartered Bank Limited account number ending with 627 (“SCB account”).

9       Five charges were tendered against the Accused in relation to the three bank accounts as follows (with the proceeded charge in bold):

Charge No.

Offence

Bank Account

DAC-906240-2024

s 417 r/w s 109 PC

 

UOB account

DAC-906241-2024

CIMB account

DAC-906243-2024

SCB account

DAC-906245-2024

s 3(1) r/w s 12(1) and

s 14 CMA

UOB account

DAC-906246-2024

SCB account



10     No charges were tendered against the Accused in relation to the two additional accounts opened without her knowledge:

(a)     United Overseas Bank account number ending with 867 (“the second UOB account”); and

(b)     Standard Chartered Bank Limited account number ending with 748 (“the second SCB account”).

Facts

11     In June 2023, the Accused received a Telegram message from an unknown individual who introduced himself as "Anthony". He promised the Accused an unspecified amount of investment returns and profits in exchange for opening bank accounts and relinquishing control of them. The Accused neither enquired about the intended use of these accounts nor was she aware that they would be used for illicit purposes.

12     Motivated by the promised gains from "Anthony", the Accused opened the SCB account on 30 June 2023, and the UOB account and CIMB account on 7 July 2023. In her application for the bank accounts, the Accused deceived the banks by falsely claiming that she would be the sole operator of the accounts, thereby inducing the banks to allow her to open the accounts.

13     Thereafter the Accused relinquished control of the three bank accounts to “Anthony”.

14     Unbeknownst to the Accused, the second SCB account and the second UOB account were created using her credentials on 9 and 11 July 2023, respectively.

15     A total sum of $109,655.78 flowed through all the five bank accounts as detailed below:

(a)     $26,244.52 flowed through the SCB account, of which $18,907.62 was traced to reported scam.

(b)     $58,078.06 flowed through the second SCB account, of which $47,509.46 was traced to reported scam.

(c)     $25,333.20 flowed through the UOB account, of which $25,290.50 was traced to a reported scam involving a 70-year-old victim. The victim was tricked into clicking a hyperlink in a text message, which led her to a webpage mimicking that of a restaurant. Consequently, a sum of $25,290.50 was siphoned from her bank account to the UOB account.

(d)     The second UOB account and the CIMB account were frozen before any funds could be channelled through them.

16     The Accused received no payment for the bank accounts she relinquished.

The Prosecution’s Address on Sentence

17     The Prosecution submitted that the offence of relinquishing bank accounts is a serious one which warranted a deterrent custodial sentence for the following reasons:

(a)     Persons like the Accused are “bank account money mules”[note: 1] who enable criminals including scammers to use the bank accounts handed over to facilitate their crimes or to launder their criminal proceeds.

(b)     Despite robust efforts to enhance law enforcement and educational awareness to combat scams, the number of scam cases continues to rise.

(c)     The Accused’s offences undermine Singapore’s financial system and status as a financial hub.

18     For the act of relinquishing bank accounts committed before 8 February 2024, offenders are generally charged with the following offences:

(a)     s 3(1) read with s 12 of the CMA for abetting unauthorised access of a bank account; and

(b)     s 417 of the PC, if the offender has opened a new bank account to be handed over (as opposed to relinquishing an existing account).

19     The Guidelines deal specifically with scam-related offences and considerable weight should be given to the sentencing approach posited by the Guidelines even though they relate to an offence under s 55A of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”). The Prosecution submitted that the Guidelines pertaining to relinquishing of bank accounts should be “extrapolated … to “old regime” bank account cases”[note: 2] in the following manner:

(a)     A lower starting sentence of four months’ imprisonment should be adopted instead of six months’ imprisonment recommended at [11] of the Guidelines.

(b)     The starting sentence should be adjusted upwards if the offence-specific aggravating factors set out in [13] of the Guidelines are present.

20     For the present case, the Prosecution submitted that the Guidelines should be extrapolated in the following way:

(a)     The starting sentence for DAC-906240-2024 involving the UOB bank account is four month’s imprisonment.

(b)     Uplifts should be made for the aggravating factors as follows:

(i)       An uplift of one to two months’ imprisonment should be made as the Accused opened the UOB bank account to be handed over as opposed to relinquishing an existing bank account.

(ii)       An uplift of one to two months’ imprisonment should be made as the Accused was motivated by gain.

(iii)       An uplift of half to one month’s imprisonment should be made as a vulnerable 70-year-old victim was involved.

(iv)       An uplift of one to two months’ imprisonment should be made as the UOB account “was used to open another UOB account”.[note: 3]

(v)       An uplift of six to eight months’ imprisonment should be made as two of the charges taken into consideration involved the opening and relinquishing of two more bank accounts that were also motivated by gain.

(vi)       An uplift of half to one month’s imprisonment should be made as the SCB account “was used to open another bank account without the accused’s control”.[note: 4]

21     If the Accused had claimed trial, the Prosecution submitted that the sentence would be around 14 to 20 months’ imprisonment.

22     Applying a 30% reduction in sentence for her plea of guilt, the Prosecution submitted for a sentence of 10 to 14 months’ imprisonment.

Mitigation

23     The self-represented Accused said nothing in mitigation.

My Decision

24     In determining the appropriate sentence for the present charge under s 417 of the PC, I first decided that the Guidelines for the offence under s 55A of the CDSA pertaining to relinquishing of bank accounts were relevant. Next, I applied the guidance in the Guidelines to arrive at the sentence in this case.

The Guidelines are relevant

25     Section 55A of the CDSA is one of several new offences that Parliament introduced in 2023 to combat the growing menace posed by scams. The offence came into force on 8 February 2024 and targets a critical component of the operation of scam syndicates: persons in Singapore who hand over control of their bank accounts.

26     A person who hands over control of their bank account to others may be prosecuted for the following offences:

(a)     The new offence under s 55A(1)(a) read with s 55A(1)(b)(ii) of the CDSA (“the s 55A offence”). The offence is punishable under s 55A(5) of the CDSA with a fine not exceeding $50,000 or imprisonment for a term not exceeding three years or both.

(b)     Abetting the pre-existing offence under s 3(1) of the CMA, which is punishable with a fine not exceeding $5,000 or imprisonment for a term not exceeding two years or both for the first offence.

(c)     Abetting the pre-existing offence under s 417 of the Penal Code (if the offender has opened a new bank account to be handed over) which is punishable with a fine or imprisonment for a term not exceeding three years or both.

27     The Guidelines at [8]-[22] provide guidance on sentencing for, inter alia, the s 55A offence involving an offender who enters into, or is otherwise concerned in, an arrangement by handing over control of their bank account to another without taking reasonable steps to ascertain the other person’s purpose of accessing, operating, or controlling the account. Given that the criminal acts described in [8(a)] of the Guidelines are the same as those committed by the Accused to relinquish her bank accounts, I found the Guidelines relating to the s 55A offence highly relevant in this case.

28     While the Guidelines are not binding on any court, they are helpful in providing guidance to the courts in passing sentences and are intended to promote greater consistency, transparency and public awareness in sentencing.

The Guidelines

29     The Guidelines (at [7]) recommend that custodial sentences ought to be the norm for scams-related offences and the sentences must be punitive enough and commensurate with the harm suffered by scam victims.

30     The Guidelines require the court to first identify the appropriate starting sentence for the offence. The starting sentence is then adjusted upwards based on the offence-specific aggravating factors Finally, the sentence is adjusted based on the offender-specific factors.

31     The Guidelines (at [11(a)]) recommend a starting sentence of six months’ imprisonment for an offender convicted after trial of a s 55A offence for handing over control of their bank account to another without taking reasonable steps to ascertain the other person’s purpose of accessing, operating or controlling the account in an archetypal case. An archetypal case is one with the following characteristics:

(a)     An offender hands over control of an existing bank account to another person.

(b)     The offender does so with the mental element set out in the relevant CDSA provision.

(c)     The offender hands over control of the bank account without any intention to derive a gain from his act.

(d)     The bank account is later used to receive and transfer funds which are benefits from crime.

32     Next, the Guidelines provide that the starting sentence should be adjusted upwards for the offence-specific aggravating factors in a case, including those set out in [13]-[14] of the Guidelines.

33     Finally, the sentence should be adjusted for the offender-specific sentencing factors, including relevant antecedents, early plea of guilt and other pertinent considerations.

34     If the offender has received a financial gain from their offence, the court should consider ordering an appropriate fine to disgorge such gain, in addition to imposing a custodial sentence.

Applying the Guidelines to this case

35     Given the prevalence of scam cases, general deterrence was undoubtedly the key sentencing consideration, and a custodial sentence was clearly warranted in this case.

Starting sentence

36     The Prosecution submitted that the starting sentence of six months’ imprisonment should be adjusted downwards to four months’ imprisonment for the “old regime” charges under s 3(1) of the CMA, given that the maximum imprisonment term prescribed for s 3(1) of the CMA (two years) was lower than that for the s 55A offence (three years). As the Prosecution wanted to adopt the same sentencing approach for offences under s 3(1) of the CMA and s 417 of the PC despite the maximum imprisonment term prescribed for the latter offence being three years, a lower starting sentence of four months’ imprisonment was also proposed for a charge under s 417 of the PC.

37     I was prepared to agree with the Prosecution to adopt a lower starting sentence of four months’ imprisonment for the present charge under s 417 of the PC.

38     Next, I applied sentencing uplifts for the offence-specific aggravating factors present in the case. In determining the appropriate uplifts, I had regard to the extent of the uplifts made in Illustration 1 (at [19]-[20] of the Guidelines). In the illustration, for the aggravating factors that (1) the offender had opened one new bank account to be handed over; and (2) the offender was motivated by gain to commit the offence, an upward adjustment of three months’ imprisonment was made. This works out to an average uplift of 25% of the starting sentence of six months’ imprisonment for each of the factors.

Uplift for opening a new bank account

39     The Guidelines (at [13(a)]) provide that the starting sentence should be adjusted upwards where the offender opened a new bank account to be handed over, as opposed to merely handing over control of an existing account.

40     As the Accused had opened new bank accounts instead of relinquishing existing ones, I applied an uplift of one month’s imprisonment (which is 25% of the starting sentence of four months’ imprisonment).

Uplift for being motivated by gain

41     The Guidelines (at [13(d)]) provide that the starting sentence should be adjusted upwards where the offender was motivated by gain.

42     The Accused was motivated by the promise of payment of an unspecified amount in this case. I applied an uplift of one month’s imprisonment.

Uplift for handing over more than one bank account

43     The Guidelines (at [13(b)]) provide that where an offender handed over more than one bank account, the number of bank accounts handed over should be considered in determining the extent of the sentencing uplift.

44     The Accused handed over three bank accounts in this case, two more than the account in the proceeded charge. For this factor, I applied an uplift of two months’ imprisonment (equivalent to 50% of the starting sentence).

45     The Prosecution sought an uplift of six to eight months’ imprisonment for “the opening and relinquishing of two additional bank accounts that were also motivated by gain”.[note: 5] The Prosecution proceeded on the basis that if the Accused were to be convicted of two other charges for handing over the CIMB account and SCB account, the sentence for each of those charges would be six to eight months’ imprisonment (computed based on a starting sentence of four months’ imprisonment plus uplifts for opening a new bank account and being motivated by gain). Since the charges relating to the relinquishing of the CIMB account and the SCB account were TIC, the Prosecution sought an uplift of three to four months’ imprisonment for each bank account.[note: 6]

46     In my view, the proposed uplift of six to eight months’ imprisonment (equivalent to 150-200% of the starting sentence) was excessive. An uplift had already been given for the aggravating factor that the Accused was motivated by gain (see [42]). It would be inappropriate to double or triple count this same aggravating factor for each bank account relinquished by the Accused. Based on the Prosecution’s explanation of how it arrived at the proposed uplift, it would be tantamount to proceeding on all three of the abetment of cheating charges and having the sentences for two of the charges run consecutively.

Uplift for the additional accounts not handed over by the Accused

47     Due to concerns that “there was great potential harm in the creation of another account”,[note: 7] the Prosecution also sought uplifts for the two additional accounts that were opened without the Accused’s knowledge:

(a)     an uplift of one to two months’ imprisonment for the second UOB account; and

(b)     an uplift of half to one month’s imprisonment for the second SCB account.

48     The Prosecution sought a smaller uplift for the second SCB account because it pertained to a TIC charge, whereas the second UOB account pertained to the proceeded charge.[note: 8]

49     I declined to order any uplift for the two additional accounts that were opened without the Accused’s knowledge for the reasons set out below.

50     First, the Guidelines do not provide for any uplift on this ground. The Guidelines provide for an uplift based on the number of bank accounts handed over by the offender, which does not include the number of bank accounts that may subsequently be opened without the offender’s knowledge.

51     Second, the Prosecution’s concerns about the potential harm in the creation of a bank account relate to the degree of harm. In my view, this is addressed by the Guidelines (at [13(f)]) recommending that an uplift in the sentence should be made if significant funds had been received or transferred out of the offender’s bank account. In the present case, I have given an uplift in the sentence because the total amount of funds that flowed through all five accounts (including the two additional accounts not handed over by the Accused) exceeded $100,000. I will now turn to this issue in the following section.

Uplift for significant funds flowing through all five bank accounts

52     The Guidelines (at [13(f)]) provide that a sentencing uplift of at least 25% of the starting sentence should be considered if significant funds ($100,000 or more) had been received or transferred out of the offender’s bank account, and the uplift should be commensurate with the quantum of funds involved. This is so even if the offender does not know of the extent of funds that have flowed through their bank account after it was handed over. The reasons for the uplift are as follows:

(a)     As the account holder, the offender can regain control of the account at any time. If the offender chooses not to do so, this will be at their own risk.

(b)     It would be perverse if an offender can rely on their own lapses in safeguarding their own interest and in complying with the law to reduce their blameworthiness for the offence.

(c)     It is well established that the court can consider in sentencing the foreseeable adverse effects of an offender’s crime even if they are beyond the offender’s control, especially in cases where the offender has acted negligently.

53     In the present case, the total amount of funds that flowed through all five bank accounts was $109,655.78. This included a sum of $58,078.06 which flowed through the second SCB account which was opened without the Accused’s knowledge but was made possible because she had ceded control of the SCB account. The harm that resulted from the Accused’s act of handing over three bank accounts therefore included the funds that flowed through the two additional accounts even though they were opened without her knowledge and control.

54     For this reason, I applied an uplift of one month’s imprisonment (equivalent to 25% of the starting sentence).

Uplift for vulnerable victim of scam

55     The Guidelines (at [14]) provide that a sentencing uplift should be imposed in cases where the funds flowing through the account are linked to a scam victim who is a vulnerable person, which includes a person of or above 65 years of age. The Guidelines further specify that the uplift should be at least 25% of the starting sentence even if vulnerable persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected.

56     In the present case, a 70-year-old victim of scam was affected. The vulnerable person had deposited a sum of $25,290.50 into the UOB account. For this reason, I applied an uplift of one month’s imprisonment (equivalent to 25% of the starting sentence).

57     The total imprisonment term if the Accused had claimed trial was 10 months’ imprisonment.

Offender-specific factors

58     In the final step, I considered the offender-specific factors. There were no offender-specific aggravating factors as the Accused was untraced and the facts relevant to the TIC charges had already been considered.

59     On account of the Accused’s early plea of guilt in Stage 1, I applied a 30% reduction in sentence and sentenced her to seven months’ imprisonment.

Disgorgement fine

60     As the Accused did not receive any payment for relinquishing her bank accounts, no fine was ordered in this case.

Conclusion

61     The alarming prevalence of scam cases have become a major and fast-growing concern, and there is a clear need to take firm action against those who facilitate the receiving and laundering of crime proceeds by scammers by handing over control of their bank accounts. Nevertheless, in imposing the uplifts recommended by the Guidelines, the court must be judicious in ensuring that that final sentence is not excessive and disproportionate to the offence.

62     All things considered, I was of view that the sentence of seven months imprisonment imposed in this case was commensurate with the Accused’s culpability and the harm occasioned by her criminal conduct.

 

[note: 1]Prosecution’s Sentencing Position (“PSP”), [5(a)].

[note: 2]PSP, [12].

[note: 3]PSP, [13(d)].

[note: 4]PSP, [13(f)].

[note: 5]PSP, [13(e)].

[note: 6]Notes of Evidence (“NE”), 17 September 2024, 6/16-7/16.

[note: 7]PSP, [13(d)].

[note: 8]NE, 17 September 2024, 7/17-8/15.

"},{"tags":["Criminal Law – offences – voyeurism under section 509, Penal Code"],"date":"2024-09-30","court":"Magistrate's Court","case-number":"Magistrate Case Notice No 901542-2020, Magistrate's Appeal No 9026-2024-01","title":"Public Prosecutor v Wang Panlong","citation":"[2024] SGMC 69","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32244-SSP.xml","counsel":["Deputy Public Prosecutor Michelle Tay (Attorney-General's Chambers) for the Public Prosecutor","Chen Kok Siang Joseph (Joseph Chen & CO) for the accused."],"timestamp":"2024-10-05T16:00:00Z[GMT]","coram":"Eugene Teo Weng Kuan","html":"Public Prosecutor v Wang Panlong

Public Prosecutor v Wang Panlong
[2024] SGMC 69

Case Number:Magistrate Case Notice No 901542-2020, Magistrate's Appeal No 9026-2024-01
Decision Date:30 September 2024
Tribunal/Court:Magistrate's Court
Coram: Eugene Teo Weng Kuan
Counsel Name(s): Deputy Public Prosecutor Michelle Tay (Attorney-General's Chambers) for the Public Prosecutor; Chen Kok Siang Joseph (Joseph Chen & CO) for the accused.
Parties: Public Prosecutor — Wang Panlong

Criminal Law – offences – voyeurism under section 509, Penal Code

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9026/2024/01.]

30 September 2024

District Judge Eugene Teo Weng Kuan:

1       Mr Wang Panlong (36 year old, China National) was charged with having insulted the modesty of V by having used his handphone to intrude upon the privacy of V by taking a photograph of her when she was naked and showering privately in the bathroom. Mr Wang claimed trial to that charge and was tried before me. After reviewing all the evidence presented, I found the charge amply proven beyond a reasonable doubt; Mr Wang was accordingly found guilty and convicted on the charge. After reviewing the mitigation and the sentencing submissions, I imposed a sentence of 12 weeks’ imprisonment for his offence. These are the grounds for my decision on his conviction and sentence. I start by first setting out the undisputed background facts.

Undisputed Background Facts to the Charge:

2       At the material time, V was 18 years old. Also originally from China, V was then in Singapore under a student pass. She stayed and had control over an apartment at Geylang (“the apartment”) where she also rented out some of the spare rooms. Mr Wang was one of those who approached her to rent a room for himself there. They came to a rental agreement and he moved into the apartment on 1st August 2019. Mr Wang, hereafter referred to as the accused, was then working in Singapore as a chef.

3       The material events took place about a week later on 9th August 2019. It was just past midnight when V went to the common bathroom to shower. Though she closed the bathroom door, a sizeable open ventilation gap remained above the bathroom door. Whilst V was showering, she saw a handphone positioned at that said gap with the camera lens units pointed at her. She was then naked. She dressed quickly so as to confront the person who was using that handphone, and when she opened the bathroom door, she saw only the accused at that area with his handphone. A confrontation ensued, and it was not disputed that the accused ultimately handed over his handphone to V for her inspection. It was also not disputed that V then found in the gallery of the accused’s handphone a recently taken image which she took objection to. Another confrontation ensued over that, and it was not disputed that the accused was asked by V to delete that image, and he did so.[note: 1] A short while later, V followed up by sending this stern text to the accused:

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”[note: 2]

4       Later that same day, V went to the police and reported the incident against the accused. As it turned out, Mr Wang did not return to the apartment that day. When he finally did return some three days later, the police arrived there, introduced themselves and informed him about their investigations and seized his black Oppo handphone (“the subject handphone”). The accused was then asked to pack his belongings and move out. A few days later, the accused attempted to leave the jurisdiction but was prevented by officers at the border.

5       When the authorities sent the subject handphone for a forensic data examination, a thumbnail index image of a deleted photo was found in the handphone and that thumbnail image showed V showering naked in the bathroom, an image which was taken from a position outside the bathroom at the open ventilation gap above the bathroom door at the material date and time (Exhibit P12: “the offending image”). After reviewing the evidence uncovered, the authorities then charged the accused in court.

The S.509 Charge & the Issues in Contention:

6       The charge against the accused read:

are charged that you, on 9 August 2019, at about 12.15 am at [address redacted] Singapore, did intrude upon the privacy of a woman, one V [name redacted] (Female, then 18 years old), to wit, by positioning your black OPPO mobile phone over the bathroom door, to take a photograph of V while she was naked in the bathroom, intending to insult her modesty, and you have thereby committed an offence punishable under section 509 of the Penal Code, Chapter 224.

7       For the most part of these legal proceedings, the accused was represented by learned counsel Mr Joseph Chen.[note: 3] The defence took various positions at different points of the proceedings (more said on that later), but the most coherent version of the Defence Case which could be pieced together was as follows: that the accused did not deliberately set out to intrude upon V’s privacy whilst she was showering. The defence asserted that there was an on-going dispute between the accused and V over noise at the apartment, and that the accused was outside the bathroom with the subject handphone because he had again been disturbed by the noise of loud music coming from the bathroom and he had wanted to use the subject handphone to record those loud music noises as evidence to confront V over the issue. The defence explained that the accused had inadvertently activated his camera function on the subject handphone instead. The defence asserted that only a very dark and blur image was taken by the accused in that inadvertence, and that the offending image was not taken by him. No coherent explanation was however offered as to why the offending image was found in his subject handphone. Given the explicit nature of the offending image itself, the defence conceded that it clearly amounted to an intrusion upon V’s privacy and was insulting to her modesty. The issues which the trial had to resolve were therefore factual:

-     Whether the accused had taken the offending image of V?

-     Whether the accused had done so intentionally?

8       I now set out the evidence presented before me on these issues.

The Prosecution’s Evidence:

9       The prosecution’s evidence on those issues comprised the following:

a.     The testimony of V on what she saw of the handphone above the bathroom door that night;

b.     The testimony of V on how the accused responded to her when she confronted him outside the bathroom;

c.     The testimony of V on the accused’s subsequent actions in the days following her police report against him; testimony which was backed up by consistent text messages exchanged during that period; and

d.     The evidence uncovered during the investigations from the subject handphone seized from the accused.

10     The prosecution contended that all those aspects showed that the accused was clearly guilty of having taken the offending image, and that he did so intentionally.

-   V – ALLEGED VICTIM – PW8

11     V was 22 years old by the time she testified before me and had already started work in Singapore.[note: 4] She confirmed that she was 18 years old at the time of the incident and was studying at one of the local polytechnics then. Up till that point, she had already been studying in various mainstream schools in Singapore for over 10 years.[note: 5] She testified comfortably before me in English.

12     Regarding the apartment where the incident took place, V explained that she was in the position of a master tenant. The apartment had been divided into 6 bedrooms and there was a singular common bathroom – the one where the incident took place – and another separate common toilet just next to it (Exhibit P17 contains 17 photos showing the layout of the relevant areas in the apartment). V had one bedroom for herself, and she had about 6 or 7 tenants in the other rooms during the material period, and the accused was one of them. V explained that the accused had initially come to view the apartment with his wife, but that his wife later went back to Malaysia and the accused had moved in on 1st August 2019 with his nephew instead.[note: 6]

13     Turning to the incident night on 9th August 2019, V testified that she went to the common bathroom to shower just past mid-night. Whilst undressed and showering privately, she turned to her side and saw a handphone camera lens pointed at her through the open ventilation gap above the bathroom door. She estimated that it was at about 12.20 am, and she could make out that the handphone was dark in colour. She said she saw the handphone being held steady in that position and that the camera lens units were pointed at her.[note: 7] Though shocked, she dressed quickly and opened the door and saw only the accused in that area with his handphone.[note: 8] She confronted him and said that she saw him taking photos of her, but the accused denied it.[note: 9] She then demanded to check his handphone, and the accused duly handed it to her. Upon checking the gallery, she saw a few images of her naked self showering in the bathroom. V candidly stated that she could not confirm if the offending image in P12 was one of the thumbnail images in the gallery that she saw that night and explained that she was actually still in shock and was feeling scared at that point and that she did not tap on the individual thumbnail images to launch and examine their full-sized versions, but she could nonetheless recognize herself and the bathroom depicted in those thumbnail images.[note: 10] Further, given where those thumbnail images were located in the gallery, she could tell that they had just been taken.[note: 11] She then demanded that they be deleted, and the accused simply nodded his head and walked away with his handphone. After recovering a little from the shock and fear she felt, V exited the apartment and called her friend to relate what just happened to her. V explained that all the other occupants in the apartment were already asleep at that time, and she did not want to immediately remain in the apartment where the accused was as she was still fearful for her safety. After a while, she re-entered the apartment and retreated to her room and sent the following sternly worded Whatsapp text at 12.59 am to the accused (Exhibit P9, and its translated copy at Exhibit P11):

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”

14     V explained that she sent that text as she was worried that those images of her would leak out to others.[note: 12] When she woke later that morning, she checked her Whatsapp and saw a reply message sent at 7.09 am from the accused to her; one which he had then proceeded to delete soon after, before she had managed to read it. As a result, she did not know what that reply text from him was about.

15     Later that same day, V went to the police to lodge a report against the accused over the incident (Exhibit P14). After doing so, she returned home under instructions from the police to contact them once she saw the accused return there.

16     At 11.18 pm that same day, V sent the accused the following Whatsapp text:

“You just move out tomorrow, I will refund to you the money for Sunday and Monday.”[note: 13]

17     V explained that she sent that text as she was concerned over her safety and did not know what else the accused might go on to do after having already intruded on her privacy in that manner.[note: 14] V therefore wanted him to move out early. The text was phrased in that manner because there was a pre-existing agreement reached between them for the accused to end his tenancy early and for the rental payable to be deducted from the deposit instead. The accused made no response to her text. As it turned out, the accused also did not return to the apartment that night, nor for the next few consecutive days.[note: 15]

18     Three days later on the 12th August 2019, the accused finally returned to the apartment and V duly informed the police. When the police arrived there a while later, they questioned him about the incident. V observed that ‘he denied and was too nervous till he can’t even speak’.[note: 16] The police then seized the subject handphone from the accused, supervised him gathering the rest of his belongings and moving out from the apartment.

19     About a week later on 20th August 2019, V said she received a telephone call from the accused who told her that the police had informed him ‘to communicate with her to resolve the issue privately’.[note: 17] In essence, V understood that the accused was offering to pay her some money to cancel the police report against him. V refused. A short while after the call ended, the accused suddenly appeared at the apartment and came in, and V again retreated to her room. The accused then knocked on her room door and asked her to come out to talk to him to resolve the matter privately, but V again refused and asked him to leave the apartment instead. The accused eventually did.

20     Later that same day, V received a series of WhatsApp text messages from a person who claimed to be the wife of the accused (Exhibit P8 and its translated copy at Exhibit P10).[note: 18] In gist, the person sought pity for Mr Wang and their family, and offered a private resolution to the police case with a compensation offer. V again refused.

21     V later went to the police to verify whether they had indeed told the accused to contact her directly to resolve the matter privately, and she discovered that the police had actually not told the accused any such thing.[note: 19]

22     When V was cross-examined on her account above, she remained consistent and coherent in her testimony throughout. The accused took the following opposing positions in cross-examining her (in chronological order), and V refuted them:

-    That V was playing music loudly whilst she showered.[note: 20]

-    That he was disturbed by the loud music, and had used his handphone to record the noise as evidence, but had accidentally activated the video record button instead.[note: 21] The accused explained that he needed evidence as V had represented that the apartment was quiet, and the evidence was needed to bolster his position in retrieving back his rental deposit in the event of him terminating the lease early due to the noise.[note: 22]

-    That it was not possible for V to have seen his handphone positioned steady at the open ventilation gap above the bathroom door, and that his handphone had at most only ‘waved past that gap when he slipped due to the slippery floor at that area’.[note: 23]

-    That V only found ‘one dark and blurry photo’ when she inspected his subject handphone, and which she requested him to delete, and which he had complied with immediately.[note: 24]

-    That V later came to confront him at his room together with another male tenant (unidentified) to demand that he move out immediately that very night.[note: 25]

23     V refuted all those defence positions, and consistently explained that whilst she was playing music whilst showering, it was not at a loud volume. Further, that she had already agreed to the request from the accused to terminate his tenancy early and return the balance of his security deposit as he was unhappy over the loud snoring sounds made by another tenant at the property, which agreement was arrived at and communicated to him before that incident night; this therefore meant that there was absolutely no reason for him to have been wielding his handphone to gather any supposed evidence about noise outside the toilet whilst she was showering that night.

-   MS KOH LING XIN – DIGITAL FORENSIC EXAMINER, CID – PW1

24     On 6th January 2020, Ms Koh performed the digital examination of the subject handphone which was seized by the police on the 12th of August 2019 from the accused.[note: 26] The various documents setting out the exhibit handling trail of the subject handphone took up Exhibits P2 to P5, with Exhibit P1 being the ultimate report which Ms Koh prepared as evidence to set out her digital forensic findings on the relevant contents found in the subject handphone. Before this court, Ms Koh described the process in which the subject handphone was retrieved and forensically examined, the software used, and the findings in terms of all the data which was residing in the subject handphone and its connected memory card.[note: 27] An appointment with the IO was then scheduled on 30th January 2020 to review all the forensic findings together, and only the data which was found to be relevant to the present case was then copied out from the subject handphone; this consisted of (1) the WhatsApp chatlog from the period 2nd – 9th August 2019 between the accused and V (Exhibit P6 and its translated copy at Exhibit P7) and (2) the offending image itself (P12).

-   The Difference in the Whatsapp Chatlogs:

25     There was one notable difference between the WhatsApp chatlog retrieved from the phone of the accused (P6 & P7) and the corresponding WhatsApp chatlog retrieved from V’s phone (P9 & P11). The version retrieved from the subject handphone of the accused was missing one singular message: the stern text which V sent to him soon after the incident at 12.59 am on the 9th August 2019:

“You better delete the photo(s) completely, if I see my photo(s) at any places I will call the Police immediately, I have your ic”[note: 28]

26     The rest of the chatlog before and after that particular message was identical. It was beyond argument that WhatsApp had the functionality to allow a user to delete a received message in their own chatlog, and it was the prosecution’s case that the accused had manipulated his WhatsApp chatlog by deliberately deleting that singular stern message from V as it was incriminating against him.[note: 29]

-   The Data Properties of the Offending Image:

27     Next, Ms Koh explained that the path location where the offending image was found, i.e. the default Digital Camera Image (“DCIM”) thumbnail index path (Exhibit P13), indicated that the offending image was a system generated smaller sized version of a photo which had been taken by the camera of the subject handphone. Such thumbnail copies are automatically generated to serve as quick reference displays in the gallery index for their respective full-sized versions.[note: 30] The corresponding full-sized image was however not found on the subject handphone. Ms Koh explained that the thumbnail versions were separate image files from their respective full-sized versions; therefore, whilst a user may delete the full-sized version, the thumbnail copy may still be present because the thumbnail copy was a separate image file with its own distinct data storage path.[note: 31] Ms Koh also explained that the data storage path indicated that the offending image was created on 9th August 2019 at 00.15 hrs – which notably coincided exactly with the testimony of V about what she saw of the handphone being pointed at her whilst she was showering in the bathroom that night.

28     When Ms Koh was cross-examined on her findings, the defence pursued a position which was ultimately abandoned, i.e. that the offending image was a thumbnail of an image received over WhatsApp instead and not of a photo taken by the camera function in the handphone.[note: 32] Given that this position was ultimately abandoned by the defence, was unsupported by any corresponding entry in any WhatsApp chatlog, and was squarely contradicted by the evidence in Exhibit P13 itself regarding the storage data path of the offending image as being in the DCIM thumbnail section and its creation date & time, there was really no basis to question any of the evidence offered up by Ms Koh, and their implications against the accused.

-   INSP ANGIE KHOO MUN YEE – 1st IO – PW2

29     Ms Khoo was the initial IO for this case. After the Police Report by V (P14) was assigned to her for follow-up, she visited the apartment the next day on the 10th August 2019 and spoke with V about her complaint. She left instructions with V to notify her once the accused returned to the apartment.

30     Ms Khoo was so notified two days later on the 12th August 2019 when the accused finally returned to the apartment. When Ms Khoo arrived there with her colleagues, they identified themselves to the accused and explained that they were investigating V’s complaint against him; in response, the accused denied filming V in the shower.[note: 33] The officers searched for his electronic devices, and the accused surrendered up the black Oppo handphone and explained that it was the one he was using at that time (“the subject handphone”). The photos and videos on the handphone were reviewed in the presence of the accused. Though nothing incriminating was found at that point, the officers explained that the subject handphone needed to be seized for further investigations (seizure report in Exhibit P15 and the accompanying acknowledgement form in Exhibit P16). According to protocol, the subject handphone was switched to “airplane mode” before being powered down.[note: 34] Ms Khoo then confirmed that the subject handphone was subsequently sent for digital forensic examination by Ms Koh (PW2), and that the manipulated WhatsApp chatlog and the offending image were discovered on it in that manner.

-   Attempted Departure on 19th August 2019 in midst of Investigations.

31     Ms Khoo said the accused “was not very cooperative and forthcoming” in his responses when they were questioning him at the apartment on the 12th August 2019.[note: 35] When asked to surrender up his passport, Mr Wang had claimed that he did not have his passport and that it was ‘being held by his employer’. Ms Khoo then told him that he was not allowed to travel out of Singapore during the investigations, and she proceeded to place him on the Stop List when she got back to her office.[note: 36] A few days later on the 19th August 2019, Ms Khoo was notified by her Immigration counterparts that the accused was detected at the Woodlands checkpoint trying to leave the country. Ms Khoo informed her counterparts not to allow Mr Wang’s departure and to instruct him to report to her the next day instead. When the accused turned up before her the next day, Ms Khoo asked about his attempted departure from jurisdiction, and the accused explained that he was simply accompanying a sick friend to see a doctor in Johor Bahru.

-   The Varied Defence Positions.

32     Ms Khoo subsequently recorded three statements from the accused (Exhibits P18, P19 and P20) where the following varied positions were taken by the accused in response to the complaint against him:

-     Complete Denial in P18[note: 37]: that he was not even at the apartment at that time on that day, and that there was no confrontation between V and him, and that there were no offending images in his subject handphone of her showering[note: 38];

-     Accidental Actions in P19[note: 39]: This second statement came about when the accused volunteered to provide details after supposedly remembering them. Contrary to what he stated earlier in P18, he now admitted that he was actually at the apartment at that time on that night. He explained that he had been out drinking earlier that night, and that he heard loud music coming from the common bathroom when he returned to the apartment. He knew someone was showering inside and he wanted to record the loud music as evidence to show the landlord. He explained that he did not know if he did an audio recording or if he took photos as he was intoxicated. He acknowledged that the person inside the bathroom did suddenly come out to confront him and claimed that it was only at that point that he realized it was V who had been inside. When V demanded to inspect his handphone, he complied and said it was only when V saw the gallery that he realized he had taken a photo instead of an audio recording. V then asked him to delete it and he complied.[note: 40] When asked how he intended to take an audio recording on his handphone, Mr Wang said it was through the WeChat application which had an audio recording function.[note: 41]

-     Back to Denial in P20[note: 42]: when Mr Wang was asked to account for the offending image found after the forensic examination on his subject handphone was completed, he simply said it was “impossible” repeatedly.[note: 43]

33     When the IO was cross-examined, the defence suggested that the offending image came to be on Mr Wang’s handphone because it had been shared between V and him via WhatsApp after the incident.[note: 44] This was however subsequently deleted, and that is why the chatlog shows that there was a deleted message between them. This defence suggestion appeared to be following the IO’s own initial misunderstanding of the forensic data findings.[note: 45] When the IO realized her own misunderstanding, she confirmed that the offending image did not come to be on Mr Wang’s subject handphone through WhatsApp.[note: 46] This defence suggestion was also subsequently abandoned, and nothing further need be said on it at this point save that this was yet another instance of the varied positions taken by the defence at the various stages of this case.

34     The other positions which the defence put to the IO were all refuted by her:

-    That she did not ask Mr Wang on the 12th August 2019 to surrender his passport;

-    That she did not tell Mr Wang on the 12th August 2019 that he could not leave the country as investigations were on-going;

-    That she did not tell Mr Wang on the 12th August 2019 what kind of case they were investigating against him;

-    That she had instead given Mr Wang the impression that the case they were looking into was minor and usually resulted in a fine or a warning;

-    That Mr Wang did not tell her on the 12th August 2019 that his passport was with his employer, and had stated instead that he wanted to check with his employer whether his passport was with them;

-    That Mr Wang did not deny being present in his first statement P18, but was simply stating that he was not sure if he was at the apartment at that time;

-    That the handphone which V saw above the bathroom door belonged to another person and not the accused, that V provided no description of the handphone she saw above the bathroom door, that Mr Wang was not tall enough to reach the gap above the bathroom door; that V’s stern WhatsApp text to Mr Wang actually referred to some other photo and not the one taken by the handphone she saw above the bathroom door.

35     The IO confirmed that Mr Wang was taller than her. At 1.65m herself, the IO confirmed that she was already able to reach the open ventilation gap above the bathroom door just by raising up her arm and reasoned that it would have been even easier for Mr Wang since he was taller than her.[note: 47]

-   SGT TOK RU JIE – CAUTIONED STATEMENT RECORDER – PW3

36     After the police firmed up the charge against the accused, Sgt Tok was assigned to record his cautioned statement (Exhibit P21 recorded on 14th September 2020). In response to the charge that he had intentionally insulted the modesty of V by taking the offending image of her whilst she was showering naked, the accused stated:

“This is wrong. I deleted it immediately. I did this for a reason.”

-   INSP AMANDA LIM PEI XUAN – 2ND IO AFTER PW2 - PW5

-   SGT TAN TUAN HOK – CURRENT IO - PW4

37     Both Insp Lim and Sgt Tan were called as witnesses to set the stage for the admission of V’s statements as evidence under section 32 of the Evidence Act. That was deemed necessary by the Prosecution because after the incident took place in March 2019, the COVID pandemic hit a few months later and V opted to be with her family in China during that period. V later encountered travel difficulties coming back to Singapore to testify due to the many pandemic restrictions on cross-border movement, and the Prosecution opted for her statements to be introduced as evidence when the date of her return to jurisdiction could not be confirmed. As it turned out, when the trial dates were eventually fixed, V managed to return to Singapore during the later tranches and testified as set out earlier; and with that, the application for her statements to be relied upon was then withdrawn by the Prosecution.[note: 48] Some of the initial positions taken by the defence with the first few prosecution witnesses were also abandoned when that happened. For those reasons, the evidence from these two witnesses about all the initial difficulties encountered in securing V’s attendance as a witness need not be recounted further.

Close of the Prosecution’s Case:

38     At the end of the prosecution’s case, the defence indicated that submissions would not be made. My own review found that there was some evidence which was not inherently incredible to support each and every element of the charge. The standard allocution was thus rendered to the accused and his defence to the charge was called. The accused elected to testify, and was the only witness for the defence.

The Defence’s Evidence:

39     The accused testified that he moved into the apartment on 1st August 2019 but said he did not go back there to stay every night.

-   His Version of the Incident:

40     He confirmed that he was at the apartment just past mid-night on 9th August 2019, having just returned from work. He said he heard loud music coming from the common bathroom and that it was very noisy. He heard someone showering inside but did not know who it was.[note: 49] After putting his bag down in his room and changing to slippers, he went to use the toilet. Whilst in the toilet, he decided to use his handphone “to record the noise to show to the landlord”, V.[note: 50] He said the voice recording app was near to the video recording app on his handphone, and that he accidentally tapped on the latter instead and did not check. After doing so, he came out from the toilet, raised his arm up with the handphone as he walked past the common bathroom door but slipped and fell to the floor as there was water on the floor at that area.

41     When learned counsel asked him to confirm whether he slipped at that area when he walked past there earlier to get to the toilet, the accused said he did not as the water on the floor was just “a small pool”, and later, the accused also added that he had washed his feet as well whilst he was in the toilet, and that his slippers became wet and slippery as a result.[note: 51]

42     The accused then continued and said that his handphone fell from his hand when he slipped. He then picked up the handphone, got up from the floor, and that was when V opened the common bathroom door and found him there. The accused surmised that she had heard him fall as he had hit something and made a noise when he slipped. The accused said V was dressed in her pyjamas, and he said it was only at that point that he realized it was her who was playing the music loudly. When V asked what he was doing there with his handphone, the accused responded that he was “not doing anything”.[note: 52] V then requested to see his handphone and he complied. V then checked and found a dark recently taken photo and asked him what it was. The accused said that the photo was so dark that it did not even have the image of V on it, and he replied that he did not know what that photo was. When V next asked him to delete it, he duly complied in her presence.[note: 53] Both of them then returned to their respective rooms.

43     The accused explained that he wanted to record evidence of the loud music noise because he wanted to move out of the apartment and end his tenancy early because the apartment was too noisy for his liking. He said that he had specifically asked V before moving in whether the apartment was noisy, and V had said it was very quiet. When it turned out that there were actually other noisy tenants, plus this noisy music, he wanted to have evidence of the noise to show V so as to bolster his case for the early tenancy termination and secure the return of his deposit. He explained that he was in that exact same situation in the previous rental property where he ended the tenancy early due to the noisy environment but had his security deposit forfeited when he did not have any evidence of the noise to justify his early termination.[note: 54]

44     Returning to the incident night, the accused said that after 5 to 10 minutes of him going back to his room, he heard someone knock loudly on his bedroom door. When he opened his door, he saw it was the male tenant from the next room together with V. The male tenant then asked him to move out immediately. The accused responded that it was so late already and asked them in return ‘where was he to go?’ The accused did not say how that exchange ended, but explained instead that over the next few days, he had no time to look for another property as he was busy at work.[note: 55] He however returned to the apartment on 12th August 2019 to retrieve his belongings, and that was when the police arrived there to question him.

-   The HP seizure and events on 12th August 2019.

45     The accused confirmed that V was present there with the police, and that the police did check with her which handphone of his to seize. Though there was some initial confusion on the correct handphone to be seized, the accused confirmed that the subject handphone which was ultimately seized by the police was the same one he had described using during the material period.[note: 56] The accused said he confronted V by stating “so you have to call the police just because of the deposit issue?” and V made no response to that.[note: 57] The accused then turned to the police and asked “It’s so serious?” and the police responded “It’s nothing serious, at most you will receive a warning.”.[note: 58] The police then left, and he also packed up and left the apartment.

46     When asked by learned counsel to clarify whether the IO (PW2) had told him why they were seizing his handphone, the accused answered that the IO simply said that ‘somebody had made a police report that someone has taken some pictures’ and they needed his handphone for investigation; the IO did not however say who made the complaint and who had taken the pictures.[note: 59] The accused confirmed though that the IO did check through the gallery on his handphone before seizing it, and the IO did not find anything of interest or highlight any image to him on that day.[note: 60]

-   The Subsequent Investigations:

47     Sometime later, when the IO recorded his statement and showed him the offending image which had been found on his seized subject handphone, the accused said he was very shocked and explained to the IO that he had never seen the offending image before. The accused said he was not challenging the forensic data examination findings in relation to the technical properties of the offending image, but simply maintained that he did not know where and how that offending image came to be on his handphone.[note: 61]

48     When asked by his own learned counsel if he had anything else to explain about the offending image, the accused contradicted his earlier position and said that the police did find a black image on his handphone during the session on 12th August 2019 and had asked him about it in the presence of V, and he had recounted what happened in response.[note: 62] The accused went on to maintain in the end that he had never seen the offending image P12 before, and declared that it was “impossible” for it to have been found on his seized subject handphone. The accused then concluded his defence account on that note. Nothing was offered on why he had deleted the stern WhatsApp text from V from his own chatlog, or on his subsequent conduct.

49     That defence account, with all its contradictions and coherence issues – more said on that later – was skillfully dismantled by the learned DPP in a systematic cross-examination, and the Notes of Evidence captures the accused going from his gleefully glib responses at the start, to ultimately ending in him floundering and continuously resorting to the refrain that he either did not understand the DPP, was confused by her questions and/or when he gave his earlier answers, or simply could not now remember the events, and requesting for leave to refer to notes to explain what allegedly happened as otherwise he could not remember those positions without referring to that script, and ending with the plea that life has not been and is not easy for a low wage migrant worker like him and that he seeks fairness and justice from the court as a result.[note: 63]

Findings on the Evidence:

50     It bears repeating that the sole matters of relevance which this court had to resolve was whether the accused had taken the offending image of V, and whether he had done so intentionally. In that regard, I found that the following evidence presented before me indicated beyond all reasonable doubt that he did.

-   V was a credible and reliable witness of truth:

51     I found V a competent and entirely credible witness as to what happened at the apartment that night and in the days following. An objective review of her account will indicate that it was clear, chronologically complete, internally and externally coherent against the undisputed background facts and the other objective evidence, and that it remained consistent under questioning. The easy and composed manner in which she was able to respond to learned counsel’s cross-examination and offer up further context appropriate and coherent details indicated an assuring depth to her testimony and that her ready responses were born of actual events which happened to her that night and which she was now being asked to recount. In particular, I noted that V was also candid in conceding that she could not tell for certain whether the offending image in P12 was actually one of those which she saw that night in the gallery of the subject handphone, and she offered up a cogent reason why she could not be certain, i.e. that she was still in shock and was also fearful even as she was confronting the accused. Given the difference between their ages at that point, plus the early hour when that confrontation took place when no one else was likely to be still awake, I found that explanation to be perfectly reasonable. I noted that V could have easily overstated her testimony and claimed to be certain on that aspect since it was clearly one of the material points of evidence against the accused, but the manner in which she ultimately offered her testimony bolstered my assessment that this was an entirely reliable and credible witness of truth who was striving to be as objectively accurate and factual as possible in her testimony to the court.

-   V’s testimony was materially corroborated by other objective evidence:

52     I also found that V’s testimony was materially corroborated by the objective evidence before the court. The most pertinent of which was the fact that the offending image in P12 was found in the subject handphone seized from the accused. Before me, the evidence of the digital forensic examiner Ms Koh Ling Xin (PW1) regarding the technical data properties of the offending image remained unchallenged by the defence, although the accused contradictorily maintained that it was ‘impossible’ for the offending image to have been found on his subject handphone but he had no explanation as to how it got there. I was unable to accept that contradictory position since it was plainly incoherent and also unsupported by any evidence. I found the evidence from Ms Koh to be instead objective, persuasive and reliable, and it thus indicated beyond all doubt that the user of the subject handphone had activated the camera function to take at least that one compromising photo of V at the material date and time. In the proceedings before me, it was also not disputed by the defence that the subject handphone was only ever used by the accused during the material period. The accused himself stated as much to Insp Khoo (PW2) on the 12th August 2019 when he surrendered it up, and repeated this same position when he took the stand. Taken together, all this therefore powerfully corroborated the account from V, and showed that the subject handphone was the one which she saw positioned steady above the bathroom door at the open ventilation gap with the camera lens units pointed at her whilst she was showering, and that it was the accused who was so doing, and that he had – as seen from the clear details captured in the offending image itself that an exposure setting capable of recording details at ambient lighting without the use of the flash – held it steady in that position in order to take that compromising photo of her. In my judgment, all this was sufficient to safely record the conviction of the accused on the charge.

53     I go further to make some connected observations on the evidence from Ms Koh. To recap, Ms Koh stated that the technical data properties of the offending image showed that it was a system generated thumbnail copy of a photo taken by the user, and that whilst a user may delete the original photo, the thumbnail copy may still remain as it is a separate image file with its own distinct data storage path. Since the corresponding original photo was not found, it indicated that it had likely been deleted by the user. To some, this may raise queries which require attention before comfortably arriving at a conclusion. For instance, is it coherent that the accused was seemingly careful enough to delete the original photo but had failed to take the same care to also delete the corresponding thumbnail copy? Further, is it then coherent that only one offending thumbnail image was found when V stated that she saw “a few images” of her naked self in the gallery of the handphone? In my judgment, those queries require needless speculation, and there was no basis to ascribe any particular care or technical knowledge to the accused as to how familiar he was with the system workings and storage places of his handphone when that was not even canvassed in the defence’s own case, and there was also no basis to conclude that the “few images” which V saw in the gallery were all photo files. I think the proper way to approach those aspects is to instead recognize and acknowledge what the evidence itself incontrovertibly establishes, and then assess if it still permits any interpretation which solely indicates the lack of guilt by the accused. When so assessed, it is clear that the evidence does not permit any such interpretation.

54     Next, I found that the evidence surrounding the WhatsApp chat between the accused and V also offered further material support to V’s account. The sternly worded text she sent to the accused (as shown in P9 and P11) shortly after she confronted him that night was wholly consistent with her account as to his objectionable conduct earlier, and it indicated no other possibility than him having just taken compromising image/s of her which she did not consent to and which she wanted deleted absolutely. The accused notably made no response to that message even though its damning implication was obvious. The fact that he chose to delete that singular stern text message instead (as shown in P6 and P7) indicated that its damning implication was also not lost on him. In my judgment, those actions in that context indicated that he had acted with a guilty mind at all material times and that he did not want his actions of that night to remain plainly on record and that he wanted it all to remain hidden. It was similarly telling when the accused blithely ignored this aspect of the evidence and made absolutely no attempt to address it in his defence. It therefore remained unchallenged before me.

-   The Other Evidence:

55     Apart from V’s credible and corroborated testimony, the prosecution also referred to the other evidence which it contended indicated that the accused had acted with a guilty mind. These included (1) his not returning to the apartment after the incident, (2) his being taciturn with the police upon their arrival on 12th August 2019, (3) his trying to leave the jurisdiction soon after, (4) his offering differing and contradictory accounts in his statements to the police, and (5) his desperately seeking a private resolution with V of her police complaint against him. Reviewed objectively, though they did appear suspicious, I did not find them to be of such a character that they permitted a solely incriminating interpretation and they did not feature in my decision to convict as a result.

56     Before rounding up to state my conclusions on the evidence in support of the charge, I turn to address the two defence submissions on this area and explain why I found them flawed and could not be accepted.

57      That V was a biased witness. [note: 64] To recap, the allegation of bias as explained by the accused was that V was upset with him because he wanted to terminate his tenancy prematurely as he was unhappy with the noisy environment at the apartment, so upset that she made up this spurious complaint against him as part of a devious plan to forfeit his tenancy deposit. Apart from his own bare assertions, there was however no evidence to support that allegation; no evidence of V being in any way upset, or that his tenancy deposit was even worth forfeiting. In fact, the undisputed objective evidence showed otherwise. By that, I refer to the WhatsApp chatlog between the accused and V (P6 and P7). That chatlog showed that the accused raised his noise complaint to V just three days after moving in, and that he requested to terminate his tenancy early as a result.[note: 65] In response, V readily acceded to his request.[note: 66] There was no hint whatsoever that she was upset with the accused, and she was even prepared to grant him whatever time he needed to arrange for new accommodation.[note: 67] As the days passed with no apparent developments with his exit plans, V then pointed out that the tenancy deposit she was then holding was now not even enough to cover the rental which was owing since day one, and she readily offered up a solution; all this indicated that she continued to take a very reasonable and facilitative stance to his exit request.[note: 68] This plain interpretation of the WhatsApp chatlog messages was not challenged, and it showed that the bare assertions by the accused were themselves spurious and had no evidential basis. In the end, after reviewing this defence submission, I found it evidentially flawed and could not be accepted.

58      That the evidence of Ms Koh and her CCRT report are unreliable and speculative because the accused has already explained that he did not use his handphone to take the offending image.[note: 69] This submission requires one to disregard the clear and unchallenged evidence on the technical data properties of the offending image as to its file nature, storage location, and creation date & time. It also requires one to disregard the clear and coherent evidence from Ms Koh as regards the forensic data recovery process which led to the discovery of the offending image in his subject handphone. I found no basis to do either purely based on the bare unsupported assertion of the accused that he did not use his handphone to take the offending image of V. Further, I noted that this bare assertion was also contradicted by the accused himself when he offered up his cautioned statement in response to the charge and where he admitted that he did take the offending image. To recap, that cautioned statement (P21) was recorded on 14th September 2020 at 17.25 hrs. By that date, the accused had already gone through three separate earlier sessions with the police where his statements were recorded (P18, P19 and P20) and where he had ultimately been shown the offending image found on his subject handphone. That context meant that there was no doubt whatsoever as to what he was being asked to formally respond to, i.e. the charge that he had insulted the modesty of V by using his handphone to take that offending image of her that night. In response to the charge and the caution, the accused could have said the act was accidental (as he did in P19), or he could have continued to maintain ignorance (as he did in P20), or offer any other explanation but he did none of those things. Instead, his cautioned response to the charge was:

“This is wrong. I deleted it immediately. I did this for a reason.”

59     It bears repeating that the defence took the position that this statement (and the others) was entirely voluntary. The defence also took the position that the recorder of this cautioned statement had better language ability and there were no communication issues. As such, the only reasonable and objective interpretation of the material part of his cautioned statement in that recounted context is that the accused was admitting that he did use his handphone to take the offending image of V that night, but that he had deleted it soon after/immediately. This cautioned statement plainly contradicted his testimony in court where he illogically maintained that the offending image was not taken by him, and he had only taken a very dark and blur image which did not even capture the likeness of V. The accused made no attempt to address his cautioned statement in his defence. It therefore remained standing as evidence that he did take the offending image of V. Having reviewed this defence submission, I found it evidentially flawed and that it could not be accepted.

Conclusion on the Charge:

60     After objectively reviewing the prosecution’s evidence on the charge, and the defence’s submissions made thereon, I found that the prosecution’s evidence remained entirely credible. V was a reliable witness of fact and her clear, complete and coherent testimony showed that the accused had intruded upon her privacy by taking the offending image of her when she was naked and showering privately in the bathroom. V’s testimony was materially corroborated by the unchallenged evidence regarding the technical forensic data of the offending image which was found in the subject handphone. Together with the admitted position that the subject handphone was only ever being used by the accused during that material period, all this conclusively showed that the accused had taken the offending image of V and that he did so intentionally.

61     Turning next to the evidence offered up by the defence, I found no reasonable doubt was raised. An objective review of that evidence – which consisted entirely of the bare assertions of the accused – will show that it had none of the qualities which earns it credibility. The Notes of Evidence show that accused could not stay consistent on his account, was ultimately offering up an incoherently incomplete scripted explanation as to what happened – one which he could not remember without reference to his prepared script. A few examples of his lack of credibility will suffice: his declaration that he did not take the offending image was contradicted by the solemn and voluntary admission which he entered in P21 that he did take the offending image of V. Next, in explaining how he came to accidentally activate the camera function on his subject handphone, the accused first said that ‘the camera function was near/next to the voice recording app’ on the screen of his handphone. When the said screen was presented in court as evidence (P28), he conceded that the apps were not near/next to each other – actually at the opposite lengths of the screen – but that he had nonetheless tapped the camera app by mistake. After a break in the proceedings, the accused changed his testimony again and said that the apps were next to each other inside a Google Apps Folder and pointed the apps out on P28. When those apps were verified and shown to have neither a camera function nor a voice recording function (P29), the accused could offer no coherent response. All this showed the utter lack of credibility of his defence.

62     For the reasons set out in these grounds, I therefore found the charge amply proven beyond a reasonable doubt and found the accused guilty and convicted him on it.

Prescribed Penalty:

63     The section 509 Penal Code charge he was convicted of carried a maximum penalty of imprisonment for a term which may extend to one year, or with fine, or with both.

Antecedents:

64     The accused was untraced.

Submissions on Sentence:

65     The prosecution tendered a written address on sentence that sought an imprisonment term of 12 to 16 weeks.[note: 70] In gist, the prosecution referenced the applicable precedents which indicated that an imprisonment term was due for such cases, and highlighting (1) the high degree of intrusion involved in the act, (2) the fact that V was a young student at the time and could be considered a vulnerable victim, (3) the utter lack of remorse exhibited by the accused, and (4) the efforts made by him during the case to thwart being held to account amounted to an obstruction of justice.

Mitigation:

66     Learned counsel tendered the written mitigation and address on sentence that sought a fine.[note: 71] In gist, the defence highlighted that (1) the prosecution’s own facts indicated that the act was a one-off instance, (2) that the accused was untraced, (3) that V was not a vulnerable victim because she was of ‘high cognitive ability’, and (4) that the accused was not trying to obstruct the course of justice. No authority was submitted to justify a fine, but reference was made to the dated case of PP v Tan Huat Heng (MA 25 of 2012) where probation was granted.

Reasons for Sentence:

67     I found little reliance could be placed on the outcome in PP v Tan Huat Heng since a different factual scenario was involved and no detailed grounds were ultimately issued by the High Court for its decision. Little meaningful comparison could be done as a result. This was especially since that decision pre-dated the detailed decision subsequently issued by the High Court as specific sentencing guidance for such offences in PP v Chong Hou En [2015]3 SLR 222 (“Chong Hou En”), where probation was set aside and imprisonment was imposed instead. Though I had brought Chong Hou En to the attention of the parties, the defence made no attempt to address the following points that judgment made:

■    That deterrence remains the primary sentencing objective in such offences given the increasing ubiquity of modern camera phones, and the very real danger of lasting shame and humiliation which victims face if their voyeuristic images were spread (at [65]);

■    It is aggravated if the intrusion was grave (i.e. full nudity), involved young victims, at the home of the victims, and involved a recording device (at [78]); and

■    That a 4 month imprisonment term was appropriate per charge (on a claim trial basis) if the facts showed a high degree of planning and premeditation (at [78]).

When that binding guidance is applied to the facts here, I found the 12-16 weeks’ imprisonment term sought by the prosecution to be entirely appropriate since:

■    The degree of intrusion on the victim here was grave as she was fully nude at the time;

■    The intrusion took place at the home of the victim at an hour when there was no one else around;

■    The accused knew the victim was a young person in comparison;

■    The accused had taken advantage of his licence to be at the apartment as a tenant to commit this offence against her instead; and

■    The accused had used a recording device in the offence to successfully take a compromising image of the victim.

I agreed with the High Court’s comments in Chong Hou En that a strong sentencing message should be sent to all those who habour thoughts of abusing the advancements in technology to commit these offences to satisfy their own perverse pleasures (at [65]). Further, I noted that the incident caused actual distress and fear to V when she realized that the accused had possession of such voyeuristic materials of her, plus there was also the anxiety she went through when she did not know whether those materials would spread. I considered though that there was not enough evidence to infer a high degree of planning and premeditation, and thus adjusted the sentence towards the lower end of the range for the single charge. All considered, I found a sentence of 12 weeks’ imprisonment to be entirely justified and appropriate given the facts here, and since the conviction was being recorded after a full trial, and where there continued to be utterly no evidence of any remorse, and so ordered for the charge. In closing, I make clear that I did not take into account the manner in which the defence was run at trial (with all the spurious explanations being offered), and the other actions taken by the accused to seemingly thwart the case (which the prosecution submitted was tantamount to an obstruction of justice). I would have if there was clearer guidance that our collective tolerance for those actions ought to be stricter, but no such authority has been issued.

68     The accused has seen it fit to pursue an appeal against his conviction and sentence. He is currently on bail pending his appeal.

[note: 1]NE, 9th May 2023, page 57.

[note: 2]Exhibit P9 and its translated copy at Exhibit P11.

[note: 3]Mr Chen was discharged for a brief period of a few hours during the trial, and that context and the following manner in which he resumed acting are set out in the NE, on 9th May 2023, at pages 1-2, and 35.

[note: 4]NE, 9th May 2023, pages 6-7.

[note: 5]NE, 9th May 2023, page 7.

[note: 6]NE, 9th May 2023, page 8.

[note: 7]NE, 9th May 2023, pages 9-11.

[note: 8]NE, 9th May 2023, page 11.

[note: 9]NE, 9th May 2023, page 12.

[note: 10]NE, 9th May 2024, page 27.

[note: 11]NE, 9th May 2023, page 13.

[note: 12]NE, 9th May 2023, pages 17-18.

[note: 13]Exhibit P9, and its translated copy at Exhibit P11.

[note: 14]NE, 9th May 2023, page 18.

[note: 15]NE, 9th May 2023, page 30.

[note: 16]NE, 9th May 2023, page 19.

[note: 17]NE, 9th May 2023, page 20.

[note: 18]NE, 9th May 2023, pages 22-24.

[note: 19]NE, 9th May 2023, page 22, and again on 4 April 2022, page 69.

[note: 20]NE, 9th May 2023, page 28.

[note: 21]NE, 9th May 2023, page 29.

[note: 22]NE, 9th May 2023, page 30.

[note: 23]NE, 9th May 2023, pages 27-28.

[note: 24]NE, 9th May 2023, pages 26 and 30.

[note: 25]NE, 9th May 2023, page 27.

[note: 26]NE, 4th April 2022, pages 12-13.

[note: 27]NE, 4th April 2022, page 17.

[note: 28]Exhibit P9 and its English Translation at Exhibit P11.

[note: 29]NE, 4th April 2022, pages 29-32.

[note: 30]NE, 4th April 2022, pages 34-35.

[note: 31]NE, 4th April 2022, page 36-37.

[note: 32]NE, 4th April 2022, pages 45-46.

[note: 33]NE, 4th April 2022, page 56; and again on 5th April 2022, page 7.

[note: 34]NE, 4th April 2022, page 59.

[note: 35]NE, 4th April 2022, page 60.

[note: 36]NE, 4th April 2022, pages 74-75.

[note: 37]The long statement of the accused in P18 was recorded on the 20th August 2019.

[note: 38]A1-A3, and A9 in P18.

[note: 39]The further long statement of the accused in P19 was recorded on the 2nd September 2019.

[note: 40]A2-A10 in P19.

[note: 41]A11 in P19.

[note: 42]The further long statement of the accused in P20 was recorded on the 26th March 2020.

[note: 43]A4 in P20.

[note: 44]NE, 4th April 2022, page 103.

[note: 45]See Q2 and Q3 in P20, and explained by Ms Khoo at NE, 5th April 2022 at page 51.

[note: 46]NE, 4th April 2022, page 103 and again at 105.

[note: 47]NE, 5th April 2022, pages 69-71.

[note: 48]NE, 9th May 2023, pages 33, 36-37.

[note: 49]NE, 9th May 2023, page 42.

[note: 50]NE, 9th May 2023, pages 39-40.

[note: 51]NE, 9th May 2023, page 41.

[note: 52]NE, 9th May 2023, page 43.

[note: 53]NE, 9th May 2023, page 45.

[note: 54]NE, 9th May 2023, page 45.

[note: 55]NE, 9th May 2023, page 46.

[note: 56]NE, 9th May 2023, page 47.

[note: 57]NE, 9th May 2023, page 47.

[note: 58]NE, 9th May 2023, page 47.

[note: 59]NE, 9th May 2023, page 48.

[note: 60]NE, 9th May 2023, page 49.

[note: 61]NE, 9th May 2023, page 51.

[note: 62]NE, 9th May 2023, page 51.

[note: 63]NE, 10th May 2023.

[note: 64] Para 5 of the Defence Closing Submissions dated 3rd October 2023.

[note: 65]See serial numbers 8 & 9 in P7.

[note: 66]See serial number 10 in P7.

[note: 67]See serial number 12 in P7.

[note: 68]See serial number 18 in P7.

[note: 69]Para 9 of the Defence Closing Submissions dated 3rd October 2023.

[note: 70]Prosecution’s Sentencing Submissions dated 30th November 2023.

[note: 71]Defence Submissions on Sentence dated 16th January 2024.

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Ng Kah Ming v Tan Sok Hui Jessica
[2024] SGDC 158

Case Number:District Court Suit No 829 of 2022, Assessment of Damages No 163 of 2023
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kim Bum Soo
Counsel Name(s): Muhammad Ridhwan Bin Abdul Rahim (Riaz Law) for the claimant; Foo Yuk Lin (Goodwins Law Corp) for the defendant.
Parties: Ng Kah Ming — Tan Sok Hui Jessica

Civil Procedure – Inherent powers – Belated change of position in parties’ cases

Damages – Assessment

Damages – Assessment – Causation

Damages – Measure of damages – Personal injury cases

Damages – Rules in awarding – Loss of earning capacity – Commissions-based jobs

30 September 2024

Judgment reserved.

Deputy Registrar Kim Bum Soo:

1       Is the Defendant bound by the position she takes in the joint opening statement? This question arises and is answered by this judgment, in a very specific context:

(a)     As is fairly common in cases involving road traffic accidents, interlocutory judgment is entered by consent, without a Defence/notice of intention to contest being filed.

(b)     The joint opening statement (“JOS”) is prepared and filed prior to the assessment of damages (“AD”). Put another way, the first definitive and complete statement of the Defendant’s position is found in the JOS.

(c)     The assessment proceeds on the basis of the positions taken in the JOS, and the parties’ examination-in-chief/cross-examination make no suggestion that they intend to depart from that.

(d)     The Claimant revises his position regarding certain heads of injury in the closing submissions (“CS”).

(e)     In closing reply submissions (i.e. when there is no longer an opportunity for the Claimant to clarify matters with witnesses, and after the Defendant had every opportunity to take a different position in closing submissions) the Defendant offers a position that not only departs from, but is fundamentally inconsistent with her previous position.

2       My answer, in brief, is that there is no general principle that a party is bound by the position she takes in her JOS. However, a court may, when clear need arises and the justice of the case requires, exercise its inherent powers, and opt not to entertain fresh arguments that detract from an earlier stated position. But where such fresh arguments are entertained, I would suggest that the opposing party be given an opportunity to respond as natural justice would require. My full thoughts are set out below at [21] – [25].

3       Separate from this, I had occasion to develop my earlier thoughts on the test for loss of earning capacity in relation to self-employed claimants (see Long Hean Kuang v Thomson Catering & Enterprises Pte Ltd and anor [2023] SGDC 243 (“Long Hean Kuang”) at [42] – [50]) and consider the implications of Crapper Ian Anthony v Salmizan bin Abdullah [2024] SGCA 21 (“Salmizan (CA)”). These are set out at [68] – [70] and [8] – [20] respectively.

Facts and procedural history

4       The Claimant-driver was involved in a road traffic accident with the Defendant-driver on 2 June 2022. Of note is that the Claimant underwent a surgical procedure fairly soon after the accident on 26th July 2022. This involved “lumbar spine L5S1 annuloplasty, bilateral facet radiofrequency ablation, and paravertebral blocks and trigger point injections” (collectively, “the surgery”). I will return to this later on.

5       Interlocutory judgment was entered by consent “with liability at 100% against the Defendant” on 30 November 2022. This was later varied (by consent) on 1 March 2023, with liability “entered in favour of the Claimant against the Defendant for 85% of the damages to be assessed with costs reserved to the Registrar assessing damages”.[note: 1] Notably, no mention was made of parties reserving any causation-related issues to the assessment, in either of the consent interlocutory judgments.

6       At the Assessment Case Conferences, the Defendant failed to meaningfully participate in the process[note: 2] and procedural directions had to be given in the Defendant’s absence.[note: 3] Following that, parties failed to submit Form 11 and were therefore unable to obtain a quantum neutral evaluation over the course of six case conferences between 19 May 2023 and 15 September 2023. The parties therefore lost an opportunity to negotiate a settlement with the assistance of the Court’s quantum neutral evaluation. The Court notes that the Claimant completed his portion of Form 11 and sent it to the Defendant as early as 15 June 2023, but no response appears to have been forthcoming from the Defendant. The matter was eventually rostered for an assessment of damages before me.

Housekeeping matters

7       Before proceeding to the assessment proper, I should first address two housekeeping matters arising from the Defendant’s belated arguments. The first is substantive – these arguments raise certain issues that should have and could only have been discussed at an earlier stage when liability was still at large. The second is procedural – these arguments represent a belated shift in the Defendant’s position, and it may be procedurally unfair for me to entertain them.

Salmizan (CA) and challenging causation belatedly

8       At the outset, I make clear that I am entertaining and, at some points, accepting the Defendant’s arguments which challenge the accident’s role in causing the Claimant’s injuries (“causation arguments”), even though they were raised belatedly at the assessment.

9       This – raising causation arguments at an assessment of damages – is seemingly impermissible for at least four reasons:

(a)     Causation cannot be challenged after liability has been established. Once established, a finding of liability necessarily accepts as established all elements of the tort of negligence, including the element of causation. An assessment of damages, convened after liability is established, should not reopen what is already closed.

(b)     Even if parties take steps to legitimately contest causation at a later stage in the proceedings (perhaps through a consent interlocutory judgment “reserving” issues of causation for later), such arguments would still not be permitted at an assessment of damages. Liability – and causation is indubitably an aspect of liability – must be established prior to quantification of damages. O. 15 r. 15 of the Rules of Court 2021 (“ROC 2021”), the provision that governs assessments of damages, appears to accept this sequence of adjudication as well.

(c)     Even if this particular aspect of liability is heard at the same time as the assessment of damages (perhaps in recognition of the fact that causation of injuries and quantification of damages are intimately connected), it appears that the two must be heard in different settings. Where proceedings are bifurcated, issues of liability (if disputed) are generally heard at trial. These must be heard in open court (see O. 15 r. 1(2) of ROC 2021). Quantification of damages is usually carried out at an assessment. These are heard in chambers (see O. 15 r. 1(1) of ROC 2021).

(d)     Finally, since a trial and an assessment usually require judicial officers to sit in different capacities (Magistrates/District Judges usually preside over trials, while deputy registrars generally assess damages), they implicate different jurisdictional limits. I, for example, am a Magistrate and could never, in that capacity, hear trials in the District Court, even as I preside over assessments of damages originating in the District Court, in my capacity as a deputy registrar.

10     My answer to these apparent objections is simply that a deputy registrar can preside over an assessment of damages in chambers, and may concurrently adjudicate the residual issue of liability (causation) in that setting. I explain this in three steps:

11      First, causation, though indubitably an element of negligence, need not be assessed at the same time as the other elements of the cause of action. “Liability does not need to be fully established before a consent interlocutory judgment can be entered in the context of [negligence claims for personal injuries arising from motor vehicle accidents (“PIMA”)]”: Salmizan (CA) at [35]. Liability, in other words, may be established in parts.

12      Second, causation, though indisputably a matter going towards the question of liability, need not be adjudicated before quantification of damages. It can be determined concurrently with the assessment of damages.

(a)     This is because in the PIMA context, questions of causation often overlap substantially with questions of quantum. Take whiplash injuries – a common type of spine-related injury arising from vehicle-on-vehicle collisions. The perennial debate centres on whether the force of the accident was responsible for the long-term back/neck aches resulting, or that a pre-existing degenerative condition (e.g. lumbar spondylosis) was responsible for the pain instead. The overlap is obvious: the same witness (i.e. the claimant) giving evidence about any pre-existing lumbar problems (which implicates questions of causation), would also testify about the pain he presently experiences (which is necessarily explored during an assessment of damages); the same doctor who can speak to the backache’s aetiology (again, a matter of causation) is the one venturing opinions about the severity of this backache (a question for assessment); and the same factual premises would generally undergird both submissions on quantum of damage and causation of damage. If so, it makes practical sense to have two intimately related issues determined together in the same setting. That – adopting an issues-based approach to making logistical decisions about the management/conduct of proceedings – was the sort of approach approvingly described in Salmizan (CA) at [58].

(b)     This would neither be the first nor last time that Courts adopt such a practical approach. A more intuitive sequence of adjudication, even if demanded by procedural hygiene, might yield to practical considerations in certain situations.

Consider Millenia Pte Ltd (formerly known as Pontiac Marina Pte Ltd) v Dragages Singapore Pte Ltd (formerly known as Dragages et Travaux Publics (Singapore) Pte Ltd) and others (Arup Singapore Pte Ltd, third party) [2019] 4 SLR 1075. That case concerned large stone panels that were defectively installed on the Centennial Tower’s façade. Two stone panels (weighing over 100kg each) fell off on two separate occasions, and the building owner sued the companies that installed the stone panels/rectified the façade the first time a stone panel fell off. Notably, though the trial was bifurcated between issues of liability and quantum, one of the issues related to quantum was heard at the liability stage of the proceedings (see [6]). Specifically, the Court assessed whether the building owners were entitled to recover the cost of completely recladding the Façade, at the liability stage instead of at the quantum stage (“the Reclad Issue”). This made perfect sense for two reasons. One, both the liability and Reclad Issue involved a great deal of similar expert evidence (see [225(a)] and [671]). It would have been impractical to call the same experts twice at two different stages of the proceedings to essentially give the same evidence. Two, the issues for liability and Reclad Issue were intimately linked. Both matters turned on factual findings about the nature and extent of the defects: the liability issue, for obvious reasons; and the Reclad Issue, because the reasonableness of pursuing a total recladding depended on how serious the defects were. Given the shared issues and shared reliance on expert evidence, it made perfect sense to have these issues heard together. The same reasoning applies to causation issues and assessments of damages in the PIMA context.

13      Third, though issues of liability such as causation are usually determined at trial in open court before a District Judge/Magistrate, I can find no authority that suggests issues of liability must be adjudicated at a trial presided over by a District Judge/Magistrate. By that same token, I can find no authority that explicitly precludes a discrete issue of causation from being heard at the assessment of damages presided over by a judicial officer sitting as a deputy registrar. So understood, the conceptual obstacle to having this matter heard before me may have been more illusory than real.

14     All this being said, I acknowledge that this particular aspect of my reasoning proceeds on a serious assumption: that issues of liability do not necessarily have to be adjudicated at trial. If this assumption were upset, the implication could be serious. The causation arguments and assessment of damages may well be heard concurrently (see [12] above), but only a trial could accommodate both in the same setting. And it being a District Court trial, I would be out of jurisdiction as a Magistrate. Since parties did not raise this issue, and being reasonably comfortable with the assumptions I have made, I did not find it prudent to make a conceptual mountain out of a molehill. Indeed, by the time this matter came before me in chambers, it would have been logistically absurd to have sent it back to the trial courts on account of procedural hygiene. And of course, the parties were fully in agreement and that there was no prejudice occasioned either.

15     I conclude with the caveat that everything I have mentioned above is limited to situations when (a) parties enter consent interlocutory judgment, (b) reserving causation to be assessed later, (c) for a PIMA matter. This is because:

(a)     My decision takes reference from and is ultimately bound by the observations of the Court of Appeal in Salmizan (CA), which was concerned with consent interlocutory judgments entered without admitting causation in the PIMA context.

(b)     Causation arguments would presumably not be raised at AD if responsibility for the accident is contested. By responsibility for the accident, I mean the other elements of negligence such as a recognised duty of care and breach of the same. In situations where responsibility for the accident is contested, an AD would not be convened at all. Rather, a preliminary issue of responsibility for accident would be adjudicated at trial, and following that, the trial will proceed with both issues of causation and quantification of damages being heard together.

(c)     Where default, rather than consent, judgment is entered, causation arguments would usually not be raised at an unchallenged AD either. That is because the default judgment would typically be final as to liability between the parties and causation arguments cannot, by that point, be raised. A finding of liability, after all, assumes that causation is fully admitted. If the Defendant wishes to raise causation arguments at the AD, the proper recourse would then be to set-aside the default judgment and enter a consent judgment that reserves issues of causation for the AD.

16     Ultimately, this issue – the proper forum and procedural mechanism for adjudicating causation arguments in the PIMA context– comes down to a contest between conceptual tidiness and practical realities. My view is that the two need not be mutually exclusive. I therefore summarise what I see as the proper, as well as practical, approach to the various situations that have arisen before me in the PIMA context:

(a)      Where the matter proceeds to trial because the Defendant disputes his responsibility for the accident, the parties ought to have responsibility for accident adjudicated as a preliminary issue at trial. Following that, they may wish to pursue negotiations (as I understand to be the usual course of events) before taking dates for further trial. At that next tranche of trial, and assuming that negotiations do not bear fruit, parties would be welcome to pursue any causation arguments (presumably reflected in their cross-examination and closing submissions) before seeking a final judgment that encompasses both a judgment on liability and a quantification of the damages payable.

(b)      Where consent interlocutory judgment is being entered, the Defendant ought to make clear whether issues of causation will be reserved. As the Court of Appeal remarked, “accuracy, precision and clarity in drafting such a consent interlocutory judgment” is paramount: Salmizan (CA) at [51]. Absent an express reservation to that effect, it may well be assumed that the parties have accepted the interlocutory judgment as final on matters of liability, and causation arguments would accordingly be impermissible at a later stage.

(c)      Where default interlocutory judgment has been entered against the Defendant, with damages to be assessed, the assumption ought to be that this interlocutory judgment is final as to liability. That means that causation arguments should not be raised, so long as that default interlocutory judgment stands. There is no reason to presume otherwise. The Claimant cannot have intended for it (since the Claimant has no reason to caveat the judgment to his own detriment) and the Defendant has simply not articulated his position at all. If the Defendant participates belatedly in the proceedings, seeking to raise causation arguments, he/she will have to set aside that default judgment and proceed accordingly. Alternatively, he/she may have to seek the Court’s leave to vary the interlocutory judgment (presumably, by consent). All this means is that a Defendant will now have to consider two matters in deciding whether to apply to have the default judgment set aside/varied. He will, as has always been the case, have to consider whether he disputes responsibility for the accident. But he will also have to consider whether he wishes to raise causation arguments later on.

17     That said, I recognise that “a defendant who entered into an interlocutory judgment, whether by consent or not, prior to [30 March 2023] is entitled to raise issues of causation at the AD stage, even in respect of all the damage that the claimant claimed to have suffered.”: Foo Kok Boon v Ngow Kheong Shen and other and another matter [2023] SGHC 189 (“Foo Kok Boon”) (emphasis in underline, mine). Foo Kok Boon, an authority from the General Division of the High Court which has technically not been overturned by Salmizan (CA), permits causation arguments at an assessment in certain situations.

18     However, as a matter of obiter, I would suggest that Foo Kok Boon ought to now be read in light of the pronouncements made by our apex Court in Salmizan (CA), which permits raising causation arguments at an assessment, specifically in situations when consent interlocutory judgment reserving issues of causation had been entered into between parties in the PIMA context. More importantly, Foo Kok Boon proceeded on the premise that Salmizan bin Abdullah v Crapper, Ian Anthony [2023] SGHC 75 (“Salmizan (HC)”) was still good law. That is no longer entirely true as Salmizan (HC) was overturned on appeal. If so, I have serious reservations as to whether counsel can rely on Foo Kok Boon to raise causation arguments belatedly, without an appropriate reservation made in a consent interlocutory judgment between parties.

19     A final somewhat pedantic point on terminology: if the Defendant is found not to have caused the injury, the proper nomenclature ought to be that the Defendant is not liable for the particular injury rather than damages being “assessed” as nil. After all, if the Defendant did not cause that particular injury, then the cause of action (in respect of that injury) is not complete. The Defendant cannot be liable for that. And if there is no liability to begin with, there is simply no occasion for an assessment at all.

20     In the present matter, I apprised the counsel of my concerns. The solution was practical and agreed by all parties – the consent interlocutory judgment was varied (with my permission) to reflect that causation arguments were reserved to the AD. Accordingly, I was in a position to hear the causation arguments at the assessment, along with the usual matters arising in an AD, sitting in my capacity as a deputy registrar.

Change of position

21     I turn then to the other housekeeping matter. The starting point is that the JOS is not a pleading and does not bind parties the way that pleadings ordinarily would. The tension is that when Defendants are otherwise absent throughout the proceedings and surface only as ADs loom, the JOS is ordinarily the first definitive and complete statement of the Defendant’s position in the court records. In that regard, it effectively functions like a set of pleadings even if it is not formally so.

22     My view is that the Defendant cannot take advantage of this technicality to commit egregious breaches of natural justice. As the High Court in Tan Hun Boon v Rui Feng Travel Pte Ltd and another [2017] SGHC 189 observed at [64], the fact that the Defendant failed to file pleadings “cannot be taken as carte blanche for the Defendant to take the other side by surprise by changing their case fundamentally after the trial is over.” But equally, parties ought to be given some leeway to respond to the fluid developments at an assessment of damages, without being shackled to the positions taken in their joint opening statement. As such, my view is that parties are indeed free to depart from the positions taken in their JOS’, but is subject to some (non-exhaustive) commonsensical considerations such as:

(a)     how extensive or radical the departure is from the originally stated position;

(b)     the opportunity given to the opposing party to respond to these departures, including whether the change in position was foreshadowed/implied during cross-examination and the particular point was brought to the relevant party’s notice;

(c)     the explanation for such a change in position, including any developments outside of the parties’ control, and whether there existed earlier opportunities to depart from an earlier stated position.

(d)     the cogency of any newly stated position, including whether it was supported by the evidence or otherwise an entirely speculative/unsubstantiated position; and

(e)     whether any change in position can be addressed with a suitable opportunity given to the opposing party to make further submissions.

23     Accordingly, depending on the facts of the case, the Court may find that its inherent powers are enlivened, such being “the reserve or fund of powers […] which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”: Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 117 (“Wellmix”) at [83] (emphasis mine), citing Sir Jack Jacob’s seminal article, “The Inherent Jurisdiction of the Court” (1970) Current Legal Problems 23. Since the “essential touchstone is one of “need”” (Wellmix at [27]) and since these powers “should only be invoked in exceptional circumstances” (Roberto Building Material Pte Ltd & Ors v Oversea-Chinese Banking Corp Ltd. [2003] 2 SLR(R) 353 at [17]), I would imagine the impropriety must be particularly high for a court to exercise its inherent powers, whatever form that may take (e.g. refusing to entertain a belated argument entirely).

24     In the present case, I was not minded to shut out the Defendant’s arguments entirely, as belated as they were. It transpired that the Defendant’s belated change in position arose from a genuine misunderstanding between counsel. When the Claimant’s counsel forwarded a draft JOS (filled out with his proposal for each head of claim) to the Defendant’s counsel for her input, the Defendant indicated that she accepted the Claimant’s proposal for certain heads of claim. The Defendant’s counsel took that to mean that parties had agreed on those heads of claim and therefore opted not to pursue any line of questioning on the same. The Claimant’s counsel, however, took the Defendant’s indications as nothing more than unilateral submissions which happened to align with the Claimant’s proposals at the time of crafting the JOS, rather than some sort of bilateral agreement between parties. And so, when the Claimant’s closing submissions deviated from what the Defendant had assumed to be already agreed between parties, the Defendant took this to mean that everything was now fair game. Accordingly, the Defendant’s closing reply submissions involved extensive submissions charting the Defendant’s true position on the matter – a position that drastically veered from what had originally been set out in the JOS.

25     In my view, this could all have been avoided if the Defendant’s counsel had made clear at the outset that she (a) assumed that those heads of claim were agreed between parties and not the subject of the assessment, (b) would not be pursuing a line of questioning at assessment on those heads of claim, and (c) reserved her rights to recall the Claimant for further cross-examination if the Claimant veered from that earlier “agreement”. That being said, I recognise that this could be chalked up to a mere misunderstanding between counsel – a mess to be cleaned up rather than impropriety to be extinguished. I was therefore not inclined to shut out the Defendant’s arguments entirely. More importantly, some of the Defendant’s arguments were fairly valid points (while others were plainly without merit, as I will explain shortly). The better and more valid arguments could have been suitably regularised, as a matter of natural justice, by giving the Claimant an opportunity to speak on the same. That was precisely the route I took when I called parties for further clarification, and my decision below reflects that. I turn then to the decision proper.

Executive Summary

26     In brief, I awarded damages as follows:

S/N

Item

Award

GENERAL DAMAGES

Pain and Suffering

 

1

Back injury

$12,250

2

Whiplash Injury

$4,500

3

Shin contusion

$800

(agreed between parties)[note: 4]

4

Bilateral trapezius strain

$800

5

Forehead contusion

$800

6

Left chest wall contusion

$650

Others

7

Loss of future earning capacity

$2,000

SUB-TOTAL (GENERAL DAMAGES):

$21,800

SPECIAL DAMAGES

Medical Expenses

8A

Consultations, medication, physiotherapy

$6,706.78 (agreed between parties)[note: 5]

8B

Surgery costs

$34,324.70

Transport Expenses

9

Pre-trial transport expenses

$570

(agreed between parties)[note: 6]

Loss of pre-trial earnings

10A

Loss of pre-trial earnings as a real estate agent

$35,366.28

10B

Loss of pre-trial earnings as a private hire driver

$0

SUB-TOTAL (SPECIAL DAMAGES):

$76,967.76

TOTAL DAMAGES (GENERAL & SPECIAL DAMGES):

$98,768



General damages - pain and suffering

The applicable legal principles

27     The principles are well-established and set out in Lua Bee Kiang (administrator of the estate of Chew Kong Seng, deceased) v Yeo Chee Siong [2019] 1 SLR 145 (“Lua Bee Kiang”) at [12] – [18]. I adopt the summary I have penned elsewhere in Asher David De Laure v Norhazlina Binte Md Yusop [2023] SGDC 72 (“Asher David”) at [10]:

(a)     First, the component method is applied. That involves quantifying the loss arising from each item or head of damage separately. This ensures that the loss arising from each distinct item or head of damage is properly accounted for: Lua Bee Kiang at [14]. Reference may be made to the Guidelines for the Assessment of General Damages in Personal Injury Cases (Academy Publishing, 2010) (“the Guidelines”) since they set out indicative assessment ranges for most types of personal injuries. However, these are no more than guidelines and a “good starting point” for negotiation: Lua Bee Kiang at [15].

(b)     Second, the global method is applied. That involves holistically considering all the injuries, to determine whether the aggregate award is reasonable and neither excessive nor inadequate: Lua Bee Kiang at [16]. This exercise is guided by at least two considerations. The first is to avoid overcompensation, with the Court accounting for any “overlapping” injuries that either (i) together resulted in pain that would not have been differentially felt by the claimant or (ii) together gave rise to only a single disability: Lua Bee Kiang at [17]. The second consideration is to ensure that like cases are treated alike, by considering and referring to the appropriate precedents: Lua Bee Kiang at [18].

28     Besides this, I recognise that the benchmarks set out in the Guidelines and the awards made in past cases ought to be made more relevant by accounting for inflationary pressures: see Tan Siew Bin Ronnie v Chin Wee Keong [2008] 1 SLR(R) 178 at [18] and Quek Yen Fei (by his litigation representative Pang Choy Chun v Yeo Chye Huat and another appeal [2017] 2 SLR 229 at [110]. There being no authority on how inflation may be accounted for in a principled manner, I have previously used the Monetary Authority of Singapore’s online inflation calculator (“MAS Inflation Calculator”)[note: 7] in Asher David (see [8]). That approach has since been similarly applied in Poongothai Kuppusamy v Huationg Contractor Pte Ltd and anor [2023] SGHC 215 at [57], and Najai Benchawan v Chong Qing (Origin) Steamboat (Pte) Ltd and others [2023] SGDC 286. I see nothing wrong with applying the same approach here again.

Stage 1 (Component approach) - Back injury

29     I award $12,250 for the back injury.

30     As a preliminary point, there was insufficient medical evidence for me to confidently characterise the back injury. Indeed, neither of the doctors called for the hearing, Dr Sean Ng (“Dr Ng”) and Dr Lim Yi-Jia (“Dr Lim”), offered a clear diagnosis for the back injury. The injury was initially diagnosed as a “back sprain” by Dr Timothy Tan (“Dr Tan”) on 3 June 2022[note: 8] and Dr Christie Chang (“Dr Chang”) on 6 June 2022.[note: 9] Following an MRI of the spine on 16 June 2022, Dr Ng simply identified the injury as an “L5S1 disc bulge with posterior annular fissure” and managed it on that basis.[note: 10] Dr Lim did not commit to any firm diagnosis but suggested at the hearing on 19 December 2023 that “if pushed”, he would have diagnosed this as “back strain with aggravation of underlying lumbar spondylosis”.[note: 11] In that sense, there was no clear agreement on the precises diagnosis of the injury. That said, the irrefutable evidence (accepted by both Dr Lim and Dr Ng) was that the MRI had identified certain abnormalities with the back: “desiccated L5/S1 disc”, a “posterior annular fissure” and a “mild broad-based central disc protrusion”.[note: 12]

31     Ultimately, I saw no need to diagnose or make firm findings about the precise nature of the injury. The inquiry for pain and suffering is not a naming-exercise (see Daniel Terry v Lee Susan Sauming [2020] SGMC 31 (“Daniel Terry”) at [29] and Yap Pow Kin v Muhammad bin Johari [2019] SGMC 40 at [11]), and I was content to simply assess the back injury as a collection of abnormalities comprising a “desiccated” L5/S1 disc, a “posterior annular fissure” and a “mild broad-based central disc protrusion”. On that understanding, the two sub-issues for this head of damage are:

(a)     Whether the accident caused the back injury; and

(b)     The proper quantum of damages for the back injury

32     On the first sub-issue, I find that the accident caused the back injury but that a portion of the pain arising was attributable to a pre-existing degenerative condition in the lumbar spine. Accordingly, I find that a 30% discount ought to be applied to the final award for the back injury.

33     There was little dispute between parties that the accident had indeed caused some sort of injury to the back. The magnetic resonance imaging scans (“MRIs”) showed that there were “trace effusions within the facet joints”,[note: 13] and Dr Lim (the Defendant’s expert) conceded that the effusions was suggestive of trauma.[note: 14] This – the acknowledgement that the accident had caused some sort of trauma to the lower back – was also consistent with Dr Ng’s testimony[note: 15] and the fact that prior to the accident, the Claimant did not experience any back pain.[note: 16]

34     That said, I find that there was a pre-existing degenerative condition primarily because the affected disc (L5/S1) was desiccated, suggesting a “long term problem”.[note: 17] That was Dr Lim’s unchallenged evidence at assessment, and I saw no reason to doubt the same. More importantly, the only evidence suggesting that the injury was purely trauma related – the fact that the desiccation was isolated to a single disc - was explainable by other factors. This deserves some explanation. The suggestion at assessment was that if there had been pre-existing degenerative conditions, one would have expected to see degenerative changes along the entire length of the lumbar spine. The other lumbar discs being “hydrated and without annular fissure”,[note: 18] an inference could be drawn that the L5/S1 desiccation was purely traumatic in nature.[note: 19] I am not prepared to draw that inference. As Dr Lim explained, degenerative changes are generally common in most of the population, and observable “from teen onwards even”.[note: 20] Such degenerative changes commonly manifest in one rather than several discs because of “biomechanical reasons”,[note: 21] presumably to do with how weight is distributed and borne by the lumbar spine. Specifically for the Claimant, Dr Lim suggested that the L5/S1 disc’s desiccation could be explained by the fact that the Claimant was overweight.[note: 22] Again, these were not seriously challenged by the Claimant at the hearing. The only relevant questions put by the Claimant’s counsel yielded an equivocal response:

Dr Lim:

The fact that the disc was desiccated, you can tell it's a long-term problem. Very often at lumbar spine there's one or two discs that are desiccated. And it's commonly L4/5. L1/2, L2/3, L3/4 hardly comes with problems. There is a biomechanical reason for why the lumbar spine usually has less problem. less movement.

 

If you look at T12/L1, the ribcage restricts the movement. And most of the movement is on L4/5 and L5/S1. So if he has a L5/S1 fusion where it's so bad, you'll find that L4/5 will degenerate. But in the cervical spine, there's more even distribution.

Claimant’s Counsel:

If L5/S1 is degenerative, wouldn't L4/5 also have a problem?

Dr Lim:

Could be.



I was unable to place much weight on that equivocal testimony.

35     As for the extent that the degenerative conditions contributed to the Claimant’s pain and suffering, I did not find the evidence to be particularly compelling in favor of either the Claimant or the Defendant. To start with, the doctors were only really questioned on whether pre-existing degenerative changes had a role to play in the Claimant’s pain and suffering, and never on the nature or extent of that role. And beyond that, the submissions did not address the extent that the accident’s trauma might have aggravated any pre-existing degenerative condition. The only inference that I was prepared to draw is that the degenerative condition was, on a balance of probabilities, not severe prior to the accident. There was no evidence of the Claimant experiencing any back-related issues prior to the accident, and the nature of the Claimant’s job (as a real estate agent and part-time private hire driver) would not ordinarily have resulted in serious wear and tear on the lumbar spine. For these reasons, I am prepared to accept that the accident would have been responsible for most of the pain the Claimant experienced (i.e. around 70%).

36     On the second issue (quantification of the damages payable), the starting point is the Guidelines. I find that the applicable range ought to be $10,000 - $17,000. That is a range catering to injuries involving “exacerbation of existing back conditions…” but where the “injured person is able to cope with the activities of daily life although he may have difficulty performing his job at the pre-trauma capacity”. At face value, the present case appears to answer that description.

37     On that range, I find that the injury ought to sound in $13,500 (around the middle of the range). The pain was present even at the time of assessment,[note: 23] and the Claimant was taking painkillers to manage the pain as and when it arose.[note: 24] While he did not report any further lower back pain at his review with Dr Ng on 16 December 2022,[note: 25] he explained that his pain had returned after that.[note: 26] Therefore, the evidence – and I did not see any reason to be sceptical of the Claimant’s credibility – paints a picture of an uneven and erratic relationship with pain. The Claimant was forthright, acknowledging that at points he did not experience pain,[note: 27] but also made clear that the pain returned – albeit in a slightly duller form.[note: 28] Given this, and given the Claimant’s testimony of the excruciating pain he suffered in the early days following the accident (“After a month I was in the bed, couldn’t even come down from that. I was also crawling around. Believe me, that was how much pain I was in […] I was just in so much pain.”),[note: 29] I find that damages at the middle of the range (i.e. $13,500) would be fair. This would also suitably reflect the fact that the injury required an invasive surgery, and physiotherapy as well. After accounting for inflation, the damages ought to be adjusted to $17,500.

38     I should also address five main arguments from the Defendant. I reject them all.

39      First, the Defendant suggested that Dr Ng did not “verify how bad the back pain was”.[note: 30] The Defendant then proceeded to – in a manner wholly unbefitting of a layperson – list medical checks that Dr Ng ought to have conducted (“detect tenderness, check on range of motion, palpate for spasms […] By right a doctor can quantify better the pain level by administering any of the standard method such as Visual Analog Scale, Verbal Rating Scale, and Numeric Rating Scale.”).[note: 31] The Defendant is not a doctor. And neither is her counsel. And more importantly, these sort of suggestions ought to have been tested at trial. It was entirely inappropriate for the Defendant to now ambush the Claimant with untested allegations at the eleventh hour.

40      Second, the Defendant suggested that Dr Ng did not “corroborate the complaint history of patient” with any “objective evidence to support veracity of the symptoms alleged by Claimant”.[note: 32] The Defendant concluded, somewhat sarcastically, that Dr Ng “[appeared] to believe patient a lot”.[note: 33] That is simply not true. Dr Ng first conducted a clinical examination at his initial consultation with the Claimant.[note: 34] Following that, an MRI – i.e. an objective and empirical diagnostic tool – was ordered and later reviewed on 20 June 2022.[note: 35] More importantly, Dr Ng recorded the Claimant’s complaints over a long time horizon – he was the Claimant’s treating doctor after all – and had an opportunity to track any medical developments over time. In that regard, Dr Ng specifically recorded that the Claimant had “persistent low back pain”,[note: 36] and also recorded in his notes that the pain was “severe pain++”.[note: 37] All this was later confirmed by Dr Ng again in his report dated 8 August 2023 when he added that the Claimant had “severe low back pain” at the review on 22nd July 2022, and that was why the surgery was discussed at all.[note: 38] Importantly, there was no reason to doubt Dr Ng’s ability to take medical history accurately. His notes were consistent with Dr Chang’s history-taking as well (“He returned to our clinic […] for persistent pain in his […] lower back”), and when the Claimant no longer reported any pain (at least, as of 16 December 2022), Dr Ng candidly recorded that observation.[note: 39]

41      Third, the Defendant took umbrage at the fact that Dr Ng had not taken steps to verify whether the Claimant had first pursued a course of “physiotherapy and medication”.[note: 40] This supposedly threw Dr Ng’s testimony/evidence into doubt and diminished its reliability. I agree that a doctor ought to get a sense of what existing treatment options had already been explored before rendering further medical advice. It is also true that Dr Ng appears to have assumed that physiotherapy had been pursued before the Claimant came to visit him (he wrote in his report dated 30 June 2022 that the Claimant “was managed with physiotherapy and medication first”,[note: 41] even though the Claimant only attended his first physiotherapy session afterwards on 21 July 2022).[note: 42] But I don’t see the relevance of the Defendant’s objection. It says nothing about Dr Ng’s ability to take medical history, and to record the Claimant’s complaints at that time (see [40] above). There was no reason to doubt Dr Ng’s records either – he confirmed on oath that he “never thought [the Claimant] was malingering or anything like that.”[note: 43] And if the Defendant truly thought that “the best objective evidence would be a report from the physiotherapist”, then the Defendant ought to have asked for one. If the Claimant chooses to run his case solely on the strength of the doctors’ testimony (as in the present case), the measure of the evidence is the cogency of the doctor’s evidence, not a speculative yardstick about an imaginary physiotherapist.

42      Fourth, the Defendant pointed out that pain medication was not prescribed at some of the Claimant’s consultations with Dr Ng. The inference, supposedly, is that “Dr Ng saw no reason to medicate for pain relief.”[note: 44] I refuse to draw that inference. This suggestion was never put to Dr Ng or the Claimant. And more importantly, the argument is somewhat tenuous. If a patient experiences pain, one might expect medication to be prescribed. But it does not follow that the absence of prescribed medication necessarily invites the opposite conclusion. In fact, the Claimant returned for painkillers as recently as 16 August 2023.[note: 45]

43      Fifth, the Defendant suggested that the Claimant’s failure to pursue physiotherapy in a timely fashion prior to the surgery suggested that the Claimant had failed to mitigate his losses. The law on mitigation of losses in tortious claims is lucidly summarised in Don King Martin (trading as King Excursion & Transport Provider) v Lenny Arjan Singh [2023] SGHC 334 (“Don King Martin”) at [58]:

58    …a plaintiff has a duty to take reasonable steps to mitigate the loss resulting from the defendant’s tort and cannot recover damages for loss which he could reasonably have avoided: The “Asia Star” [2010] 2 SLR 1154 (“The ‘Asia Star’”) at [24]. To minimise any potential unfairness to the aggrieved plaintiff, the courts have sought to ensure that the standard of reasonableness required of him is not too difficult to meet. For instance, he is not required to act in a way which exposes him to financial or moral hazard. The standard of reasonableness falls short of being purely objective as it takes into account subjective circumstances of the plaintiff: The “Asia Star” at [31]. Pertinently, an assertion that the plaintiff failed to mitigate his loss must be pleaded and proved by the defendant relying on it: Jia Min Building Construction Pte Ltd v Ann Lee Pte Ltd [2004] 3 SLR(R) 288 at [71].

(emphasis in bold mine)

44     The Defendant’s case was hobbled at the outset by her failure to plead any assertion that the plaintiff failed to mitigate his loss. But even putting that aside, the surgery, though pursued fairly early on and though somewhat aggressive, was entirely defensible as a matter of medical practice:

(a)     Dr Ng made clear that surgery was not explored at first instance (“No I would never. Not at first. Conservative first.”).[note: 46] This was borne out by the evidence. The Claimant was conservatively treated and taking medication for at least a month from the time of the accident before eventually opting for surgery on 27 July 2022.[note: 47]

(b)     Dr Ng explained that he had advised surgery because Dr Lim’s alternative proposal[note: 48] might have involved a “second procedure [and he didn’t] want to subject plaintiff to yet another procedure […] another operating theatre session, another anaesthetic session, etc.”[note: 49]

(c)     Dr Ng and the Claimant decided to pursue the surgery after a considered discussion of the potential benefits and trade-offs of various surgical options.[note: 50]

(d)     Dr Ng had basis to suggest the surgery since he was assured by “good results” with the surgery before.[note: 51] The choice of surgical procedure being something practice-based, and something within the judgment of the expert, I am loath to substitute my own assessment with Dr Ng’s.

(e)     More importantly, even Dr Lim agreed with Dr Ng that “[the choice of surgical procedure is] ultimately practice based.”[note: 52] There was no suggestion the surgery was inherently dangerous, scientifically bogus, or otherwise unreasonable to pursue. At best, Dr Lim made a passionate case for physiotherapy and suggested that the surgery was not a silver bullet for the pain management.[note: 53] But that was not enough to convince me that pursuing the surgery was itself unreasonable.

45     Given this, I am assured that even though the doctors generally agreed on pursuing treatments in a gradated fashion (i.e. from less costly and less risky to more so),[note: 54] there was reason enough to pursue a more aggressive solution (i.e. the surgery) even earlier on in the recovery process. Dr Ng spoke plainly at the assessment. He said the Claimant was suffering from “severe pain ++”.[note: 55] He was prepared to offer medical advice that would address that. In that regard, I reiterate that “the standard of reasonableness required of [the Claimant] is not too difficult to meet [and] takes into account subjective circumstances of the [Claimant]”: Don King Martin at [58].

46     Taking all this into consideration, and applying the 30% discount to $17,500, I assess damages for the back injury at $12,250.

47     Parenthetically, I should add that I did not appreciate the manner in which the Defendant’s closing submissions were phrased. At points, they felt unfair, as they invoked brand new yardsticks – metrics which had never been raised in the assessment[note: 56] – that the Claimant had allegedly failed to meet. At other points, they sounded bordered on being disrespectful. The Claimant was accused of giving “dishonest” replies for not informing Dr Ng that he had not started on physiotherapy at the time of the 21 July 2022 consultation.[note: 57] He was even accused of “misleading” his doctor (an allegation that was not tested at the assessment).[note: 58] And there was fanciful speculation that the Claimant “did not think it important enough to recover from his back pain in June 22 to July 22” (another allegation that was not tested at assessment), when the evidence clearly suggests that the Claimant was in so much pain[note: 59] that he opted for surgery very early on. To my mind, even in an adversarial system, there must be limits as to what counsel can allege. The Defendant’s counsel may have, at points, crossed that line.

Stage 1 (Component approach) - Whiplash Injury

48     I award $4,500 for the whiplash injury.

49     The doctors agreed that this was a case of “whiplash to the cervical spine with aggravation of underlying cervical spondylosis”.[note: 60] The starting point for whiplash injuries in the Guidelines is $5,000 - $7,000 for Grade 1 whiplash injuries. Adjusted for inflation, that is $6,500 - $9,100.

50     I find that the present case is an appropriate occasion to dip below the range stated in the Guidelines. Indeed, the precedents suggest (see p 153 of Carrie Chan et al, Practitioner’s Library – Assessment of Damages: Personal Injuries and Fatal Accidents (Lexis Nexis, 3 Ed, 2016) (“Practitioner’s Library”)) that even whiplash injuries may well sound in damages under $5,000. I find this an appropriate case to deviate from the Guidelines for two reasons:

(a)     First, the injury did not appear to be especially severe. There was “mild” cervical spine tenderness but “good range of movement”.[note: 61] The “power in bilateral C5-T1 myotomes were full”[note: 62] as well. In fact, the Claimant’s neck pain had resolved by 22 July 2022[note: 63] and there was no suggestion at assessment that his neck was still troubling him. This means that the neck pain lasted about two months at most. This distinguishes the present case from Scott Grayham De Silva v Comfort Transportation Pte Ltd and others [2017] SGDC 215,[note: 64] where the plaintiff suffered symptoms for 2 years and 10 months (see [15]). This also distinguishes the present matter from Choo Mee Hua v Karuppiah Veerappan [2023] SGDC 306[note: 65] where there was continuing intermittent pain “some two and a half years after the accident, and [which involved] a permanent disability of 10%” (see [13]). Those cases sounded in damages of $11,000 and $7,400 respectively.

(b)     Second, the injury appeared to have been managed conservatively and there was no special measure (such as an invasive surgery) taken to manage the pain. This distinguishes the present case from Daniel Terry[note: 66] where the Plaintiff attended some 97 physiotherapy sessions in the span of two years (see [26]) and from Lang Ren Jee Renata Mrs Tay Ren Jee Renata v Toh Yij Wei [2023] SGHC 147[note: 67] where the plaintiff averaged about two physiotherapy sessions a month (see [11]) and would require special procedures to manage the “permanent” neck symptoms (see [19] – [20]). Those cases sounded in damages of $9,000 and $8,000 respectively.

51     Accordingly, I assess damages at $4,500 (equivalent to a fairly severe neck sprain, according to the Guidelines). I have done so bearing in mind that the Claimant’s symptoms included “parasthesia over the right C7 dermatome”, and considering that the accident had played a role in aggravating the pre-existing issues. This, to my mind, is consistent with the $4,000 award granted in Mohamed Rizal Bin Yatiman v Wadhrul Hijazi Bin Abdul Wahab [2020] SGDC 211[note: 68] where the plaintiff’s pain lasted about two months but was “intermittent and not constant in nature” (see [7]), without any other secondary complications.

Stage 1 (Component approach) - Shin contusion

52     Parties agreed on $800 for this head of claim. Having surveyed the medical evidence, I found this appropriate and fair and award that accordingly.

Stage 1 (Component approach) - Bilateral trapezius strain, forehead contusion, and chest contusion

53     As alluded to above at [1], the Defendant fundamentally changed her position with regard to these heads of claim in her closing reply submissions (“CRS”):

Injury

Claimant

Defendant

JOS

CS

CRS

JOS

CS

CRS

Trapezius strain

$800

$1,500

$1,500

$800

$800

Nil

Forehead contusion

$800

$1,000

$1,000

$800

$800

Nil

Chest contusion

$1,000

$1,200

$1,200

$1,000

$1,000

Nil



54     As explained above (see [25]), I did not find that the Defendant’s arguments deserved to be shut out, purely on account of them being late. I therefore proceeded to examine these particular injuries on the strength of the evidence and (where appropriate), considered the Defendant’s arguments fully.

Bilateral Trapezius Strain

55     The Defendant’s argument, in essence, was that this was nothing more than an offshoot of the neck injury. These being overlapping injuries, they ought to be considered together. Accordingly, the Defendant proposed that I assess damages at $0 for the bilateral trapezius strain. The Defendant did not propose any uplift to the neck injury even though it, according to her, ought to now encompass a bilateral trapezius strain as well.[note: 69]

56     In my view, that is a matter of expert evidence, and the Defendant has not put that hypothesis to the test before the doctors. The Defendant has drawn inferences and made conjectures (“The doctor did group together two set of muscles when examining for tenderness i.e. the report noted “tenderness at bilateral cervical paraspinal muscles and trapezius muscles””)[note: 70] that she is not entitled to make as a layperson. Needless to say, exhibiting medical diagrams and “explaining” the link between the shoulder and neck muscles is not appropriate either.[note: 71] Of course, I appreciate that the Defendant’s counsel did not question the doctors on this because she was operating under a mistake (see [24] above). But at the time of drafting closing reply submissions, she should have recognised that her case had not been put to the Claimant/experts properly, and written in to Court to explain the situation. If necessary, she should have requested for the doctors to be recalled. The cost of recalling the doctors would naturally have had been the price to pay for her lapse (see [25] above). As such, I am simply unable to accept this argument - it has never been tested at assessment and I am not prepared to venture my own medical opinion on this matter. I am not a doctor either.

57     Turning to the assessment proper, the starting point for the bilateral trapezius strain is the Guidelines. The applicable range is below $2,000. This translates to less than $2,600 once inflation is taken into account. I assess damages at $800 for the following reasons:

(a)     The injury was mild and appeared to have fully resolved 10 days after the accident. Indeed, when the Claimant visited Intemedical Kovan on 12 June 2022, there were no records or complaints of any shoulder related pain.[note: 72]

(b)     There were no residual disabilities or any suggestion that treatment was necessary specifically for the trapezius strain. It appears that he was treated conservatively with “medications”[note: 73] and the injury, thankfully, ran its natural course fairly quickly.

58     I recognise that the strain was experienced on both shoulders and have therefore seen fit to price this injury higher than say, a single contusion which ordinarily sounds in about $500 of damages according to the Guidelines ($650 by modern standards). Accordingly I assess damages at $800.

Forehead Contusion

59     The Defendant’s argument was baseless and improper: baseless, because it offered an entirely speculative hypothesis (“Although a diagnosis of contusion to forehead was made, it was probably on account of the feedback of patient of a knock, which the doctor accepted to treat at best”);[note: 74] and improper, because the argument lacked any credible medical authority. It was entirely inappropriate for the Defendant to recharacterise the medical evidence by adding her own gloss, especially when that theory had never been suggested at the assessment, nor specifically put to the doctors or the Claimant. Recasting the evidence in that manner was unfaithful to the actual diagnosis made by Dr Chang i.e. that there had indeed been a forehead contusion.[note: 75] Even if the Defendant’s suggestions were accepted, the conclusion urged on the Court (to award $0 for this head of claim) simply did not follow. I reject the Defendant’s arguments entirely.

60     I accept that the Claimant suffered a forehead contusion. This much was clear from the undisputed diagnosis in Dr Chang’s report.[note: 76] The starting point for a single contusion is $500 according to the Guidelines. Adjusted for inflation, that would come up to $650. I agree with the Claimant that not all contusions are the same.[note: 77] A contusion on the head, an especially vulnerable part of the body, can credibly be accepted as being more alarming and worthy of compensation than say, a contusion on the little finger of a non-dominant hand. The Guidelines do not allow for that nuance and do not acknowledge that distinction. The Court, however, can. I grant an uplift of $150 accordingly, and assess damages at $800.

61     I have tempered this uplift on account of the fact that the forehead contusion was mild and there was no mention of it in medical reports after 12 June 2022. Much like the bilateral trapezius sprain, the treatment was conservative as well. For these reasons, I did not find it appropriate to grant any more of an uplift than $150. Needless to say, I reject the Defendant’s alternative submission of $300 – premised on the suggestion that this was no more than a “knock”[note: 78] – which was shorn of any evidential basis, heedless to the Guidelines’ benchmarks, and never put to the Claimant at assessment. I repeat my observations at [56] above.

Left Wall Chest Contusion

62     I reject the Defendant’s submission but accept her alternative submission. The Defendant’s main submission seeks to undermine Dr Chang’s report. The report did not document any examination of the chest, and there were no X-Rays ordered either. Dr Chang’s diagnosis of a left wall chest contusion therefore cannot be trusted, so the argument goes.[note: 79] I reject this argument for similar reasons as what I have stated above at [56].

63     However, I accept that the seemingly applicable range in the Guidelines ($1,000 for contusions to the chest) is deceptive and ought not to be followed in the present case. According to the endnotes in the Guidelines, the figure of $1,000 is based on Raveendran v Chong Suiew Foo Suit No 2123 of 1986 (High Court), an unreported case found at p 506 of the Practitioner’s Library. That case involved a horrific accident involving serious damage to the chest area and the lung contusion sounded in $1,000. Accordingly, I agree with the Defendant that the Guidelines intended for $1,000 to represent contusions experienced on internal organs in the chest area, rather than superficial bruising that happens to be on the chest. The starting point therefore ought to be the usual $650 (for contusions simpliciter), and I see no reason to grant any further uplift to that figure. The Claimant has not offered any special reasons for an uplift, and the mild injury resolved uneventfully by 12 June 2022.

Stage 2 – whether an uplift/discount is necessary upon holistic consideration of the case

64     I did not see any need for a further uplift. This was not a situation where the total pain and suffering was greater than the sum of its parts, and neither was it a situation where the component approach failed to account for more generalised pain/suffering inestimable by reference to specific injuries (see for example, Asher David at [62]). I did not see a need for a discount either. This was not a situation where the pain and suffering experienced from the injuries otherwise overlapped (see for example, Asher David at [64]), or where the pure application of the component approach would lead to overcompensation.

General damages - loss of earning capacity

The applicable legal principles

65     Turning to the claim for loss of earning capacity, the authorities suggest that there are three different tests for loss of earning capacity:

(a)     In situations where a plaintiff remains in the same line of work before and after the accident (and up to the time of assessment), the test in Chai Kang Wei Samuel v Shaw Linda Gillian [2010] 3 SLR 587 (“Samuel Chai”) applies. This involves a cumulative two-stage test: first, the Court determines whether there is a “a substantial or real risk that the [plaintiff/claimant] could lose his or her present job at some time before the estimated end of his or her working life”; if yes, the Court assesses whether the plaintiff/claimant “will, because of the injuries, be at a disadvantage in the open employment market” (see Samuel Chai at [36]).

(b)     In situations where a plaintiff/claimant is unemployed at the time of trial or assessment, the only requirement is for the plaintiff to show that he will be at a competitive disadvantage in the open labour market due to his injuries: Mykytowych, Pamela Jane v V I P Hotel [2016] 4 SLR 829 (“Mykytowych”) at [139].

(c)     In situations where a plaintiff/claimant has lost a better, higher-paying pre-accident job because of his injuries and is compelled to take up a different, lower-paying post-accident job, he/she will only need to show that he/she will be at a disadvantage in competing for his/her higher-paying pre-accident job because of the injuries (see Lua Bee Kiang at [50] and the rationalisation of Lua Bee Kiang in Islam Mohammad Rakibul v Masud and another [2022] SGDC 270 (“Rakibul”) at [84]).

66     Different tests apply in different situations because the plaintiff/claimant’s exposure to financial risk differs, depending on his/her employment situation at the time of assessment. If one remains employed at their pre-accident job, the risk of financial damage is somewhat more muted. The plaintiff/claimant still remains employed and is shielded from the vicissitudes of the open market until such time as he/she is fired. That is why the Court imposes a threshold requirement that the plaintiff/claimant must first prove a substantial risk of losing his/her job before the estimated end of his or her working life. In other cases, the plaintiff/claimant has already lost his/her job and is now either unemployed or settling for a less demanding (and lesser paying) job. In those situations, there is no need to impose a threshold requirement – it would have already been met in any case. The plaintiff/claimant need only prove that he/she will be at a competitive disadvantage in the open labour market (if he/she is unemployed), or in competing for his/her previous higher-paying pre-accident job (if he/she is presently employed at a lesser-paying job). These reasons have been lucidly canvassed in greater detail by the learned deputy registrar in Rakibul at [70] – [87], and I have summarised that elsewhere in Asher David at [70] – [73].

67     Here, the applicable test would be Samuel Chai’s two-step test (see [65(a)] above), since the Claimant remains at his same pre-accident jobs even after the accident. He continues to work as a real estate agent and a part-time private hire driver. The key issue centres on whether he has demonstrated “a substantial or real risk that [he] could lose his or her present job at some time before the estimated end of his or her working life” (“threshold requirement”).

68     The threshold requirement appears to apply with some modifications in the context of self-employed claimants. Claimants are only expected to show that there is “real risk that [they] would lose the ability to sustain [their business]”: Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 169 (“Tan Teck Boon”) at [46]. Tan Teck Boon’s plaintiff was a sole proprietor providing courier services for companies like DHL Express (Singapore) Pte Ltd (“DHL”). Together with one employee, the plaintiff personally carried out courier assignments. The plaintiff then suffered a road traffic accident. In assessing the plaintiff’s damages for loss of earning capacity, the High Court applied the Samuel Chai test, and found that there was a “real risk that [the plaintiff] would lose the ability to sustain” his business”. The business was “highly dependent” on contracts with DHL, and DHL testified that the “plaintiff’s inability to personally drive/meet customers would be a factor relevant in the renewal of the DHL contract”: Tan Teck Boon at [46]. The Court accepted that the risk was real despite the fact that DHL had renewed the plaintiff’s contract twice after the accident, and despite the fact that the contract was renewed after the plaintiff could no longer personally deliver goods: Tan Teck Boon at [46].

69     This modified threshold requirement makes sense for two reasons:

(a)     First, the threshold requirement, as originally formulated, assumes a traditional employer and employee model where one might be conceivably let go from his/her job. That does not apply to the self-employed. Indeed, it is odd to speak of self-employed persons being fired from the very businesses they operate/own (see also Long Hean Kuang v Thomson Catering & Enterprises Pte Ltd and anor [2023] SGDC 243 at [46]).

(b)     Second, the modified threshold requirement still conforms with the rationale for imposing a threshold requirement. The threshold requirement is imposed to satisfy the Court of a credible possibility that the competitive disadvantage will indeed occasion financial damage at some point in the future: Rakibul at [76]. In the context of self-employed persons, that financial damage takes a different form. Instead of being fired and thrown into the open market, the financial threat would involve potentially losing the ability to sustain the business. That damage need not be complete or crippling. As the facts of Tan Teck Boon show, this modified threshold requirement can be satisfied even if the business is not facing existential threat.

70     In my view, the same modified threshold requirement may, depending on the facts, apply to those who are employed in commissions-based jobs as well. For some, they would largely have the autonomy to carry out their work as they deem fit, much like someone self-employed. A large part of their remuneration may be commission based, and they would essentially be operating independently, save that it is under the banner of another company. The risk of financial damage comes less from the prospect of being fired for under-performing, and more from simply being unable to drum up enough business for himself/herself. For others, they may not enjoy such independence. They may be regularly monitored, have sales targets to meet, have key performance indicators to fulfil, and essentially be reliant on their employer’s evaluations/operational needs for continued employment. They are unmistakably employees of the company, save that their remuneration is structured with a commission component. The sort of financial damage that they might face would be the one that any employee faces and ought to be assessed using the threshold requirement in its original formulation.

71     The Claimant falls in the former category and the applicable test for loss of earning capacity is the Samuel Chai test, as modified in Tan Teck Boon. The Claimant is a real estate agent and a private hire driver. He has the autonomy to pursue deals as he wishes, and to drive for as many hours as he wishes. The financial damage he might face comes not from the prospect of Propnex letting him go, or Grab firing him (assuming Grab or Propnex can even be credibly called his employers at all), but from the fact that he can no longer close deals and drive passengers as well as before.

The Claimant is entitled to his claim for loss of earning capacity with regard to his real estate job, but not his private hire driving

72     Applying the modified threshold requirement, I find that the Claimant does not face a real risk of losing his ability to sustain his private hire driving, but that he faces a real risk of losing his ability to sustain his job as a real estate agent.

73     For his private hire driving, the Claimant made clear that he took on the job for a clear and singular purpose – to cover the rental costs of his car (“if I cover my rental I will call it a day”).[note: 80] So understood, it does not appear that the accident – or any injury arising from that – will seriously affect his ability to drive the (modest) amount that he wants to drive. Indeed, he confirmed that he was “well enough to drive” as early as January 2023.[note: 81] There was no testimony – other than a vague suggestion that the injuries have “affected and [are] still affecting his] daily and working activities” – to the effect that he would no longer be able to drive enough to cover the rental costs of his car. That being the case, I do not find that there is any real risk of him losing his ability to sustain his job as a part-time private hire driver.

74     For his real estate work, I accept that there is a risk the Claimant will not be able to sustain his business, at least at pre-accident levels. True, Dr Ng specifically mentioned that the Claimant “has been back to work without any major issues or complaints.”[note: 82] But equally true is that his evidence – that he had to reduce meetings on account of his pain[note: 83] - was never challenged at the assessment either. In fact, the Claimant continues to suffer from intermittent pain – pain which is severe enough to require prescription medication rather than over-the-counter drugs[note: 84] – and experiences it till this day.[note: 85] That is consistent with Dr Ng’s suggestions that “there may be an increased risk of pain, discomfort and restriction of movement in [the Claimant’s] neck and lower back region” in the years to come,[note: 86] and that the Claimant “may have more pain and discomfort when he works” since he has to “walk around a lot for his job”.[note: 87] I am particularly mindful of two other concerns as well:

(a)     The intermittent pain directly implicates his ability to function effectively as a real estate agent. His job involves a high amount of uncertainty (“you never know whether you can close the deal”).[note: 88] It requires a certain measure of readiness – a readiness to seize opportunities, to take advantage of economic tailwinds (e.g bull run years in the market[note: 89]), and to dynamically respond to any potential prospects. The Defendant acknowledges this too.[note: 90] The Claimant fares poorer now, as he is unable to be reliably ready to take advantage of these opportunities as and when they present themselves.

(b)     For those in commissions-based jobs like the Claimant, the risk of financial damage is live and present when they are injured, even if their livelihood is not under existential threat. Doubtlessly, that risk (of financial damage) arises at least in part because of the nature of the plaintiff’s/claimant’s work. But that alone cannot exculpate a defendant – the defendant must take the “victim” as it finds him: Loh Siew Keng v Seng Huat Construction Pte Ltd [1998] SGHC 197 at [164], citing Smith v. Leech Brain [1962] 2 QB 405.

For these reasons, I find that there is a real risk of the Claimant not being able to sustain his business as a real estate agent, at least at pre-accident levels.

75     Real as the risk might be, I assess the risk conservatively. Ultimately, the Claimant has returned to his job and there was no real evidence led about the precise effect/manner in which the injury will implicate his work as a real estate agent. The pain, though present, is either intermittent or not excruciating enough to demand total disengagement from work. And beyond this, Dr Ng has specifically stated that the Claimant “has been back to work without any major issues or complaints” (emphasis mine).[note: 91] Therefore, the evidence marshals itself into one conclusion: there is lingering pain which haunts the Claimant’s ability to work, but not debilitatingly so. Unfortunately, the precedents (both those offered by counsel, and my independent survey of the Practitioner’s Library) do not offer a useful comparator in pricing this loss. The best I can do is assess the loss of earning capacity in broad strokes – the haze of pain that fogs an otherwise unclouded mind at work; the pressures of having to close the deal without surrendering to pain; and the anxiety of anticipating erratic (i.e. uncertain) episodes/experiences with pain at work. I price this modestly at $2,000.

76     For completeness, I should mention that the Claimant acknowledged that he was a director/shareholder of a few companies as well.[note: 92] But since he had never made any claims for loss of earning capacity, and since it was reasonably clear that he did not play active roles in these companies anyway (“just checking monthly company records, on and off”;[note: 93] “I have no knowledge of accounts”;[note: 94] “live company but no role”[note: 95]), there was no need for me to seriously examine his shareholding/directorship in those companies.

Special damages

Medical expenses

77     The medical expenses are as follows:

S/N

Item

Sum ($)

Reference

1

Mount Alvernia – Medicine & Consultation (3 June 2022)

463.95

CBOD 105

2

Intemedical – Medicine & Consultation (6 June 2022)

$90.74

CBOD 106

3

Intemedical – Medicine & Consultation (12 June 2022)

$114.49

CBOD 107

4

Ardmore – Consultation (16 June 2022)

$171.20

CBOD 108

5

Ardmore – Medicine, MRI & Consultation (20 June 2022)

$2,884.75

CBOD 109

6

Ardmore – Consultation (22 July 2022)

$107

CBOD 110

7

Ardmore – Medicine & Consultation (16 August 2022)

$408.25

CBOD 111

8

Ardmore – Consultation (1 August 2022)

$107

CBOD 112

9

Ardmore – Medicine & Consultation (7 September 2022)

$407.70

CBOD 113

10

Ardmore – Plaster & Consultation (14 November 2022)

$136.45

CBOD 114

11

Ardmore – Consultation (16 December 2022)

$107

CBOD 115

12

Atlas – Physiotherapy (11 August 2022)

$180

CBOD 116

13

Atlas – Physiotherapy (22 August 2022)

$180

CBOD 117

14

Atlas – Physiotherapy (14 September 2022)

$180

CBOD 118

15

Atlas – Physiotherapy (5 October 2022)

$180

CBOD 119

16

Atlas – Physiotherapy (14 November 2022)

$180

CBOD 120

17

Atlas – Physiotherapy (22 November 2022)

$180

CBOD 121

18

Atlas – Physiotherapy (21 July 2022)

$220

CBOD 122

19

Ardmore – Medicine & Consultation (16 August 2023)

$408.25

CBOD 128

20

Aptus Surgery – Surgery bill

$34,324.70

CBOD 123 - 127



78     The Defendant accepts that she is liable to pay for S/N 1 – 19 above (totalling $6,706.78),[note: 96] but objects to paying for the surgery stated at S/N 20 above. In that regard, the Defendant does not take issue with the sufficiency of the evidence. Her main contention is that the surgery expenses were unreasonably incurred, considering that there may have been cheaper alternative treatments that were medically viable and proposed by Dr Lim.

79     The starting point, legally speaking, is that a plaintiff/claimant is entitled to act on the advice of his experts if such advice was taken in good faith from reputable practitioners: Rubens v Walker [1946] SC 215 at p 216, cited in the Practitioner’s Library at [2-10]. That is why the plaintiff/claimant is entitled to claim from the defendant medical expenses, even if it later transpires that the medical advice he/she acted upon was wrong and the medical treatment was unnecessary: Rubens v Walker [1946] SC 215 (cited with approval by Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 1 SLR(R) 490 at [14]). Having found that the surgery was indeed medically defensible, and that there was nothing untoward about the decision-making leading up to the surgery (see [44] – [45] above), I begin with the premise that the surgery’s medical expenses were indeed reasonable.

80     To this, the Defendant made three broad arguments, all of which I reject.

81      First, the Defendant suggested that judging by the literature, the surgery was not appropriate for the Claimant. To that end, Dr Lim produced four articles – two website printouts, and two from medical journals – which allegedly demonstrated that the surgery was (a) only appropriate for chronic as opposed to acute pain,[note: 97] (b) not appropriate to be pursued at first instance,[note: 98] and (c) not a permanent solution.[note: 99] The truth is, none of these articles were directed towards, or indeed made any findings about the efficacy of the surgery when pursued early on, or the appropriate candidate for such a surgery. The website printouts were merely generalised descriptions about the conditions which can be treated with such a surgery, and were at best, general statements about the usual candidates/circumstances that warrant such a surgery.[note: 100] Nothing, much less any scepticism, was expressed about the efficacy of pursuing the surgery at an earlier point in the patient’s journey with pain. The medical articles were similarly directed towards answering an entirely different question. One was a “systematic review of randomized controlled trials”, aimed at determining “the efficacy of [the surgery] for chronic low back pain”.[note: 101] The other was a generalised study “to survey current clinical practice related to [the surgery]”.[note: 102] Again, these studies said nothing about whether the surgery was inappropriate/ineffective when pursued early on. And naturally, none of them discussed whether in specific circumstances, a doctor might credibly recommend the surgery for non-chronic pain. The furthest that the journals suggested was that the surgery was generally pursued for chronic pain, perhaps after other conservative measures have failed to yield results. This was not enough to convince me that the surgery was so out of step with scientific norms as to warrant scepticism or disapproval from the Court. Indeed, one of the medical studies confirmed that the surgery was “an efficacious treatment […] demonstrating statistically significant pain reductions”.[note: 103]

82      Second, the Defendant claimed that the Claimant’s reasons for pursuing the surgery were not reasonable. At least part of the Claimant’s consideration was that “because he [was] unemployed, he [was] not sure if he [wanted] a second surgery”[note: 104] (which was a possibility if the Claimant had adopted Dr Lim’s alternative approach). The Defendant’s submission was that “the concern of claimant that he could face downtime of 2nd round of surgery […] is not reasonable”.[note: 105] I disagree. That is perfectly reasonable. The Claimant is perfectly entitled to weigh the downsides of a potential return surgery, and to accord it weight when electing between surgical options. Moreover, as Dr Ng observed, every additional surgical operation represented risks (“another operating theatre session, another anaesthetic session etc.”).[note: 106] Dr Ng also suggested the surgery given that the Claimant was in a high amount of pain (“His pain to me was very bad”)[note: 107] These too, were legitimate considerations that spoke to the reasonableness of the decision.

83      Third, the Defendant argued that the surgery was not effective and for that reason, was not reasonably pursued.[note: 108] I acknowledge that the surgery has not produced a total and permanent solution for the Claimant’s back pain. But “the recoverability of expenses for medical treatment cannot be dependent on its success. For one thing, the success of a particular treatment has little, if any, relation to whether that treatment was reasonably undertaken.”: Clark Jonathan Michael v Lee Khee Chung [2010] 1 SLR 209 at [40]. Indeed, there may be any number of reasons why a surgical procedure, even if pursued reasonably may not yield results. No doctor promises silver bullets and the Court should not realistically expect that either. As explained earlier (at [82] and [44] above), the Claimant and Dr Ng made the call given the information they had and after a considered discussion of the trade-offs associated with the decision. Indeed, even one of Dr Lim’s articles suggested that the surgery “can provide lasting relief”.[note: 109]

84     I am therefore fortified in my belief that the surgery expenses were reasonable and award that accordingly.

Transport expenses

85     Given that there were 19 round trips, the parties agree that $570 ($30 x 19) is fair.[note: 110] I see no reason to disturb that agreement and similarly agree that it is fair.

Pre-trial loss of earnings

86     As a starting point, the Claimant was issued medical certificates for the following period, representing about 5.5 months out of work between June and mid-December 2022 :

(a)     3 – 7 June 2022 (5 days);[note: 111]

(b)     6 – 10 June 2022 (5 days, with 2 days overlapping with another medical certificate);[note: 112]

(c)     12 – 16 June 2022 (5 days);[note: 113]

(d)     16 June – 23 June 2022 (8 days, with 1 day overlapping with another medical certificate);[note: 114]

(e)     24 June 2022 – 20 July 2022 (27 days);[note: 115]

(f)     21 July 2022 – 26 July 2022 (6 days);[note: 116]

(g)     26 July 2022 – 15 August 2022 (21 days, with 1 day overlapping with another medical certificate);[note: 117]

(h)     16 August 2022 – 1 September 2022 (17 days);[note: 118]

(i)     2 September 2022 – 2 November 2022 (62 days);[note: 119]

(j)     3 November 2022 – 13 November 2022 (11 days);[note: 120]

(k)     14 November 2022 – 16 December 2022 (33 days);[note: 121]

87     However, I am reluctant to take June 2022 – mid-December 2022 as the period of loss of pre-trial earnings for two reasons. First, the Claimant did in fact enjoy commissions during that period. Save for October 2022, he earned anywhere between $8,424 to $16,467.98 a month during that period.[note: 122]Second, the Claimant acknowledged candidly that though the medical certificates ran till December 2022, he resumed work “on and off” from November 2022.[note: 123]

88     The fairer way to approximate his loss would be to examine when the effects of his time away from work manifested themselves. That is because a real estate agent would ordinarily only enjoy the fruits of his labour a few months after the completion of the sale/purchase. For example, an option that was exercised and accepted on 12 March 2022,[note: 124] only resulted in a payday later on 3 June 2022.[note: 125] Similarly, an option exercised and accepted on 23 March 2022[note: 126] only resulted in commissions being paid out on 9 June 2022.[note: 127] When one compares the commission payout dates[note: 128] against the actual date that transactions were completed,[note: 129] one can credibly estimate a lag time of approximately 3 to 4 months. By extension, I am willing to estimate that his inability to work between June and November 2022 would have begun manifesting in lost commissions sometime in October 2022 (four months from June 2022) up till March 2023 (four months from November 2022). Indeed, October 2022 was the first month after the accident that the Claimant received $0 in monthly income,[note: 130] and the Claimant was receiving zero commissions from January 2023 - April 2023.[note: 131] I choose not to recognise his lack of income in April 2023 as a loss attributable to the accident since there is not enough statistical data to convince me that this was something more than an ordinary ‘low’ period in a real estate agent’s profession. Indeed, the Claimant regularly experienced zero-income months, even prior to the accident.[note: 132] So understood, I take the period of loss as roughly 6 months between October 2022 to March 2023.

89     The Claimant’s average monthly income as a real estate agent, after deducting for expenses) in the period preceding the accident (2019 – May 2022) was $7,367.98 (i.e. ($1,974[note: 133] + $113,455[note: 134]+ $100,318[note: 135] + $86,340[note: 136]) divided by 41 months). I recognise that there was an over-representation of “bull-run” years in this data set since the Claimant himself acknowledged that the years 2020 and 2021 were bull run years.[note: 137] Moreover, the Claimant acknowledged that there were certain months in those years where particularly lucrative deals were closed, netting him $62,545.53 or $78,552.35 a month (representing almost ten times of the monthly average income).[note: 138] That being the case, I was not inclined to simply take the average monthly income of $7,367.98 at face value. A more realistic view of his monthly income ought to accept that the bull and bear years should, on average, even out. Bearing that in mind, and recognising that there was no evidence that the period that he was out of work was a similarly lucrative period for a real estate agent, I apply a 20% discount to his average monthly salary. That sounds in a final figure of $5,894.38 as his monthly average income.

90     Putting these two figures together, 6 months x $5,894.38 comes up to $35,366.28‬ in lost income as a real estate agent.

91     As for his claims for lost income as a private hire driver, I am not minded to give any award for that. The truth is, the Claimant saw his private hire driving earnings primarily as a form of cost-recovery rather than an additional stream of income. Indeed, the Claimant candidly acknowledged that he only drove enough to cover his rental costs of the car. [note: 139] There being no evidence of him having rented a car during the period he was recovering, I do not imagine that there was any loss (in the sense of not being able to recover the cost of the car rental) in any meaningful way. Making an award for this lost “income” would therefore represent a potential windfall for the Claimant, and would be unfair to the Defendant. For that reason, I decline to make an award for the same.

Conclusion

92     The usual interest of 5.33% p.a. from the time of writ till date of judgment is to apply to the general damages. Similarly, the usual interest of 2.67% p.a. from the time of accident till the date of judgment is to apply to the special damages. The parties are to confer on costs. If agreement cannot be reached, parties are to write in by 15 October 2024 with cost submissions limited to 2 pages each (excluding cover pages and annexes).

[note: 1]DC/ORC 612/2023.

[note: 2]Assessment Case Conference dated 17 January 2023

[note: 3]Assessment Case Conference dated 15 February 2024

[note: 4]Defendant’s Closing Submissions dated 23 March 2024 (“DCS”) at [5] and Defendant’s Reply Submissions dated 1 April 2024 (“DRCS”) at [3]

[note: 5]DCS at [83].

[note: 6]DRCS at [20]

[note: 7]See https://eservices.mas.gov.sg/statistics/calculator/GoodsAndServices.aspx

[note: 8]Claimant’s Affidavit Evidence-in-Chief dated 14 March 2023 (“AEIC”) at p 90.

[note: 9]AEIC at p 92.

[note: 10]AEIC at p 93.

[note: 11]Notes of Evidence dated 19 December 2023 (“NEs 19 Dec 2023”) at p 21E.

[note: 12]AEIC at p 96.

[note: 13]AEIC at p 96.

[note: 14]NEs 19 Dec 2023 at p 24B.

[note: 15]NEs 19 Dec 2023 at p 8C.

[note: 16]NEs 19 Dec 2023 at p 8E.

[note: 17]NEs 19 Dec 2023 at p 23A.

[note: 18]AEIC at p 96.

[note: 19]Nes 19 Dec 2023 at p 22E.

[note: 20]NEs 19 Dec 2023 at p 14B.

[note: 21]NEs 19 Dec 2023 at p 23A.

[note: 22]NEs 19 Dec 2023 at p 22B.

[note: 23]Notes of Evidence dated 18 October 2023 (“NEs 18 Oct 2023”) at p 10C.

[note: 24]NEs 18 Oct 2023 at p 11B.

[note: 25]Claimant’s Bundle of Documents (“CBOD”) at p 88.

[note: 26]NEs 18 Oct 2023 at p 10E.

[note: 27]NEs 18 Oct 2023 at p 10D.

[note: 28]NEs 18 Oct 2023 at p 10E.

[note: 29]NEs 18 Oct 2023 at p 9B.

[note: 30]DCS at [56(ix)].

[note: 31]DCS at [56(ix)].

[note: 32]DCS at [56(iii)] and [56(iv)].

[note: 33]DCS at [56(viii)].

[note: 34]CBOD at p 84.

[note: 35]CBOD at p 87.

[note: 36]CBOD at p 84.

[note: 37]NEs 19 Dec 2023 at p 7A.

[note: 38]NEs 19 Dec 2023 at p 6E.

[note: 39]CBOD at p 88.

[note: 40]DCS at [56xi].

[note: 41]CBOD at p 84.

[note: 42]CBOD at p 122.

[note: 43]NEs 19 Dec 2023 at p 12C

[note: 44]DCS at [56xv].

[note: 45]CBOD at p 128.

[note: 46]NEs 19 Dec 2023 at p 8B.

[note: 47]CBOD at pp 105 – 109.

[note: 48]Defendant’s Bundle of Documents (“DBOD”) at p 5.

[note: 49]NEs 19 Dec 2023 at p 9B – C.

[note: 50]NEs 19 Dec 2023 at p 23D.

[note: 51]NEs 19 Dec 2023 at p 9A.

[note: 52]NEs 19 Dec 2023 at p 14.

[note: 53]NEs 19 Dec 2023 at p 14C – E.

[note: 54]NEs 19 Dec 2023 at p 13C (for Dr Lim) and 8B (for Dr Ng).

[note: 55]NEs 19 Dec 2023 at p 7A.

[note: 56]See for example, references to the Singapore Medical Council’s standards, “standard” diagnostic tools for pain assessment, and the preferability of having a physiotherapist instead: DCS at [56ii], [56ix] and [56xii].

[note: 57]DCS at [56sviii]

[note: 58]DCS at [65].

[note: 59]NEs 18 Oct 2023 at p 9B.

[note: 60]NEs 19 Dec 2023 at p 22A.

[note: 61]CBOD at p 84.

[note: 62]CBOD at p 84.

[note: 63]CBOD at p 88

[note: 64]Claimant’s Closing Submissions (“CCS”) at [17]

[note: 65]DCS at [28]

[note: 66]CCS at [18].

[note: 67]DCS at [29].

[note: 68]DCS at [32].

[note: 69]DCRS at [8].

[note: 70]DRCS at [5].

[note: 71]DRCS at [7]

[note: 72]CBOD at p 83.

[note: 73]CBOD at p 83.

[note: 74]DRCS at [9].

[note: 75]CBOD at p 83.

[note: 76]CBOD at p 83.

[note: 77]CCS at [37].

[note: 78]DCS at [14].

[note: 79]DCRS at [15].

[note: 80]Notes of Evidence dated 9 January 2024 (“NEs 9 Jan 2024”) at p 14C.

[note: 81]NEs 9 Jan 2024 at p 17E.

[note: 82]CBOD at p 88.

[note: 83]AEIC at [11].

[note: 84]CBOD at p 128.

[note: 85]NEs 18 Oct 2023 at p 8E and 10E

[note: 86]CBOD at p 85.

[note: 87]CBOD at p 85.

[note: 88]NEs 9 Jan 2024 at p 13E.

[note: 89]NEs 9 Jan 2024 at p 12D.

[note: 90]DCS at [149].

[note: 91]CBOD at p 88.

[note: 92]NEs 9 January 2024 at p 14B and 17E.

[note: 93]NEs 9 January 2024 at p 16B.

[note: 94]NEs 9 January 2024 at p 16C.

[note: 95]NEs 9 January 2024 at p 17B.

[note: 96]DCS at [83]

[note: 97]DCS at [100(a) - (b)]

[note: 98]DCS at [100(c)]

[note: 99]DCS at [112]

[note: 100]Defence Exhibits “D1” and “D2”.

[note: 101]Defence Exhibit “D3”

[note: 102]Defence Exhibit “D4”

[note: 103]Defence Exhibit “D3”

[note: 104]NEs 19 December 2023 at p 23D.

[note: 105]DCS at [107].

[note: 106]NEs 19 December 2023 at p 9C.

[note: 107]NEs 19 December 2023 at p 23D.

[note: 108]DCS at [109] – [114].

[note: 109]Defence Exhibit “D1”

[note: 110]DRCS at [20] and CCS at [50].

[note: 111]CBOD at p 93.

[note: 112]CBOD at p 94.

[note: 113]CBOD at p 95.

[note: 114]CBOD at p 96.

[note: 115]CBOD at p 97.

[note: 116]CBOD at p 98.

[note: 117]CBOD at p 103.

[note: 118]CBOD at p 99.

[note: 119]CBOD at p 100.

[note: 120]CBOD at p 101.

[note: 121]CBOD at p 102.

[note: 122]CBOD at p 136.

[note: 123]NEs 18 October 2023 at 11E.

[note: 124]CBOD at p 149.

[note: 125]CBOD at p 137.

[note: 126]CBOD at p 159.

[note: 127]CBOD at p 137.

[note: 128]CBOD at p 137.

[note: 129]See CBOD at p 162 onwards

[note: 130]CBOD at p 136.

[note: 131]CBOD at p 139.

[note: 132]CBOD at p 135.

[note: 133]CBOD at p 5.

[note: 134]CBOD at p 10.

[note: 135]CBOD at p 15

[note: 136]DBOD at p 9.

[note: 137]NEs 9 Jan 2024 at p 12D.

[note: 138]CBOD at p 135.

[note: 139]NEs 9 Jan 2024 at p 14C.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Theft","Criminal Procedure and Sentencing – Sentencing – Enhanced Sentences for Breaching Conditional Remission Order"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No DAC-909291-2021 and 15 Others, Magistrate's Appeal No 9169-2024-01","title":"Public Prosecutor v Muhammad Danial Bin Jesman","citation":"[2024] SGDC 256","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32240-SSP.xml","counsel":["Norman Yew (Attorney-General's Chambers) for the Public Prosecutor","Leonard Chua Jun Yi (Damodara Ong LLC) for the Defendant (Plea of Guilt and Mitigation)","Ng Jeanny (Jeanny Ng) for the Defendant (Further Mitigation Plea)."],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Kessler Soh","html":"Public Prosecutor v Muhammad Danial Bin Jesman

Public Prosecutor v Muhammad Danial Bin Jesman
[2024] SGDC 256

Case Number:District Arrest Case No DAC-909291-2021 and 15 Others, Magistrate's Appeal No 9169-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Kessler Soh
Counsel Name(s): Norman Yew (Attorney-General's Chambers) for the Public Prosecutor; Leonard Chua Jun Yi (Damodara Ong LLC) for the Defendant (Plea of Guilt and Mitigation); Ng Jeanny (Jeanny Ng) for the Defendant (Further Mitigation Plea).
Parties: Public Prosecutor — Muhammad Danial Bin Jesman

Criminal Procedure and Sentencing – Sentencing – Theft

Criminal Procedure and Sentencing – Sentencing – Enhanced Sentences for Breaching Conditional Remission Order

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9169/2024/01.]

30 September 2024

District Judge Kessler Soh:

Introduction

1       Muhammad Danial Bin Jesman is 32 years old.

2       He has a long history of offending, mainly for theft and other property-related offences. He was ordered to undergo probation in 2003 and 2004, ordered to reside for two years in a Juvenile Home in 2008, sentenced to reformative training in 2011, sentenced to 18 months’ imprisonment in 2014, sentenced to three years’ imprisonment in 2016. In 2018, he was found guilty of another string of theft offences and eventually sentenced to a total of 42  months’ imprisonment and an enhanced sentence of 224 days’ imprisonment for breaching a conditional remission order (“CRO”) under the Prisons Act (Cap 247, Rev Ed 2014) (“Prisons Act”).

3       For this last series of offences, he was released on 27 March 2021 under another CRO. Under this fresh CRO, he was not to commit any fresh offence during the period from 27 March 2021 to 30 April 2022. However, he breached the condition soon after by committing a fresh spate of offences between April and September 2021.

4       16 charges were subsequently brought against him. Most were offences of theft under s 380 of the Penal Code (Cap 224, Rev Ed 2008) (“Penal Code”). He pleaded guilty on 31 January 2023 to nine charges, with the remaining seven offences taken into consideration for sentencing. Various sentencing options were considered, including a mandatory treatment order (“MTO”) and corrective training (“CT”). Eventually, on 26 August 2024, he was sentenced to a total of 50 months’ imprisonment, and an enhanced sentence of the maximum of 391 days’ imprisonment for his breach of the CRO. He filed the present appeal against the sentence on 30 August 2024. He is serving the sentence.

5       The grounds of my decision on the sentence are set out below.

Plea of guilt

Proceeded charges

6       The defendant pleaded guilty to nine charges, which are set out below in the order in which the offences were committed:

DAC-911328-2021

You […] are charged that you, on 5 April 2021, at about 6.58pm, at Remax located at Westgate, 3 Gateway Drive #03-13, Singapore, a building used for the custody of property, did commit theft of [a smart watch and a portable speaker] with a total value of $328.90, in the possession of one Yap Siew Fong, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-911329-2021

You […] are charged that you, on 9 April 2021, at about 4.29pm, at “Laptop Factory Outlet” located at 200 Victoria Street Bugis Junction #03-26, Singapore, a building used for the custody of property, did commit theft of one Apple Macbook Air valued at $1,299, in the possession of one Nor Lih Shazzuany, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-911330-2021

You […] are charged that you, on 30 April 2021, at about 5.23pm, at “Oui Click” located at 107 North Bridge Road, #03-12 Funan, Singapore, a building used for the custody of property, did commit theft of one white DJI Mavic Air Fly More drone valued at $1,449, in the possession of one See Eng Teck, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-909314-2021

You […] are charged that you, on 2 May 2021 at about 5.08pm, at Challenger in 313@Somerset located at 313 Orchard Road #04-01/02, Singapore, a building used for the custody of property, did commit theft of one red and blue Nintendo Switch gaming console valued at $499, in the possession of one Wong Chee Kit and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-917037-2021

You […] are charged that you, on 2 May 2021, at about 7.32pm at “British Essential” located at 10 Tampines Central 1 #03-02 Tampines One, Singapore, a building used for the custody of property, did commit theft in dwelling of one 100ml bottle of “Versace Dylan Blue (Men)” valued at $69.60 and one 100ml bottle of “Burberry Touch (Men)” valued at $49.90 in the possession of Lim Kong Hwee, and you have thereby committed an offence punishable under section 380 of the Penal Code, Chapter 224 (2008 Rev. Ed.). […]

DAC-909291-2021

You […] are charged that you, on 17 May 2021, at about 7.24pm, at Popular Bookstore in PLQ Mall located at 10 Paya Lebar Road #03-01 to #03-03, Singapore, a building used for the custody of property, did commit theft of [earpieces] with a total value of $436, in the possession of one Chan Kin Yong, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-916277-2021

You […] are charged that you, on 6 June 2021 at about 8.55pm, at Best Denki in Ngee Ann City located at No. 391 Orchard Road, Singapore, a building for the custody of property, did commit theft of one white Sonos Beam soundbar valued at $699, which was in the possession of one Nor Ismail Bin Ariffin, and you have hereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-913618-2021

You […] are charged that you, on 11 July 2021 at about 9.53 p.m, at Cow Play Cow Moo (“CPCM”) located at No. 3 Temasek Boulevard #03-372 Suntec City Mall, Singapore, a building used for the custody of property, did commit theft of [two iPads and 4,000 pieces of CPCM vouchers with a total value of at least $180,000] with a total value of at least $181,378, in the possession of one Fu An, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

DAC-916293-2021

You […] are charged that you, on 18 August 2021, at about 11.47pm, at Mustafa Centre located at Blk 145 Syed Alwi Road, Singapore, a building used for the custody of property, did commit theft of [various items] with a total value of $4,932.70, in the possession of one Logkesh Maniam, and you have thereby committed an offence punishable under Section 380 of the Penal Code (Cap 224, 2008 Rev Ed). […]

Facts

7       The salient facts were as follows.[note: 1]

5 April 2021: Theft of watch, speaker ($328.90)

8       On 5 April 2021 at about 6.51 pm, the defendant visited “Remax”, an electronics store located at Westgate (3 Gateway Drive).

9       At a secluded corner of the store, he took a smart watch (Model: RL-EP09) valued at $49.90. After checking that no one was looking at him, he placed it inside his plastic bag with a view to taking it out of the store without paying for it. After that, he continued to loiter about in the store. At about 6.56 pm, he returned to the secluded corner and took a JBL Charge 4 portable speaker valued at $279. After checking that no one was looking at him, he placed it inside his plastic bag. He left the store at about 6.58 pm with both items without paying for them, intending to take the items dishonestly. (DAC-911328-2021)

10     The theft was discovered by the store manager, Yap Siew Fong, the next day. On 6 April 2021 at about 10.30 am, Yap performed a stock check and discovered that the two items were missing. She reviewed CCTV footage of the store, which showed the defendant taking the two items. She lodged a police report later that night.

11     During investigations, the defendant denied visiting the store. It was only after the police showed him screenshots of the CCTV footage that he admitted to stealing the items from the store. Both items have not been recovered.

9 April 2021: Theft of Apple Macbook Air ($1,299)

12     On 9 April 2021, at about 4.27 pm, the defendant visited “Laptop Factory Outlet”, a computer store located at Bugis Junction (200 Victoria Street).

13     He was carrying a paper bag and loitered in the store. At about 4.29 pm, after checking that no one was looking at him, he took a box containing an Apple Macbook Air valued at $1,299 from a shelf. He hid behind a display table so that the other persons in the store could not see him as he placed the box inside his paper bag. After putting the box inside his paper bag, and making sure that no one was looking at him, he left the store quickly, intending to take the item dishonestly without paying for it. (DAC-911329-2021)

14     On 4 May 2021, the sales supervisor of the store, Nor Lih Shazzuany, discovered that the item was missing. She reviewed CCTV footage of the store, which showed the defendant taking the item. Subsequently, she informed the police about the theft. The item has not been recovered.

30 April 2021: Theft of drone ($1,449)

15     On 30 April 2021, at about 5.21 pm, the defendant visited “Oui Click”, an electronic camera store located at Funan Mall (107 North Bridge Road).

16     He took a box containing a white DJI Mavic Air Fly More drone valued at $1,449. After making sure that no one was looking at him, he left the store at about 5.23 pm and took the item dishonestly without paying for it. (DAC-911330-2021)

17     Later that day, at about 8 pm, a staff at the store, See Eng Teck, discovered that the item was missing. He reviewed CCTV footage of the store, which showed the defendant taking the item. He called the police to report the theft. The item has not been recovered.

2 May 2021: Theft of Nintendo Switch ($499)

18     On 2 May 2021, at about 5.02 pm, the defendant visited “Challenger”, an electronics store located at 313@Somerset (313 Orchard Road).

19     He took a red and blue Nintendo Switch gaming console valued at $499 from a shelf at the store. He walked to a secluded corner of the store. He removed the store’s electronic tagging placed on the item (so that the store’s sensors would not detect the item being taken out of the store) and placed the item into his bag. He left the store at about 5.08 pm and took the item dishonestly without paying for it. (DAC-909314-2021)

20     On 13 May 2021, a sales manager at the store, Wong Chee Kit, conducted a stock check and discovered that the item was missing. He reviewed CCTV footage of the store, which showed the defendant taking the item. Later that day, he informed the police about the theft. The item has not been recovered.

2 May 2021: Theft of perfume ($119.50)

21     On 2 May 2021, at about 7.29 pm, the defendant visited “British Essentials” a health and beauty store located at Tampines One (10 Tampines Central 1).

22     He was carrying a tote bag and a paper bag. He took a bottle of 100 ml “Versace Dylan Blue (Men)” valued at $69.60. He went to a relatively secluded area in the shop, turned his back towards a shop staff to obscure her view, and placed the item in his paper bag. Subsequently, he took a bottle of 100 ml “Burberry Touch (Men)” valued at $49.90. He went to the same secluded area in the shop, turned his back towards a shop staff to obscure her view, and put the item in his paper bag. He left the store at about 7.32 pm with the items and dishonestly took the items without paying for them. (DAC-917037-2021)

23     Later that day, the store staff discovered that the items were missing and reported the matter to the director of the store, Lim Kong Hwee. Lim reviewed CCTV footage of the store, which showed the defendant taking the items. Later that night, Lim informed the police about the theft of the items.

24     During investigations, the defendant denied committing the offence. The items have not been recovered.

25     The defendant was arrested on 12 May 2021. He was released on bail on the same day.

17 May 2021: Theft of earpieces ($436)

26     On 17 May 2021, at about 7.18 pm, the defendant visited “Popular Book Store” a books and electronics store located at PLQ Mall (10 Paya Lebar Road).

27     He was carrying a tote bag. At about 7.20 pm, after making sure that no one was looking at him, he opened the locks on a rack and took the following items (worth a total of $436) and placed them into his pocket and bag:

(a)     Two Phiaton Bolt earbuds, valued at $99 each;

(b)     One Sennheiser wireless earpiece, valued at $99; and

(c)     One Skullcandy BT earpiece, valued at $139.33.

He left the store at about 7.24 pm with the items, intending to take the items dishonestly without paying for them. (DAC-909291-2021)

28     On 18 May 2021, a store supervisor, Chan Kin Yong, discovered that the items were missing. He reviewed CCTV footage of the store, which showed the defendant taking the items. Later that day, he informed the police about the theft of the items. During investigations, the defendant admitted to stealing the items. The items have not been recovered.

29     On 18 May 2021, the defendant was arrested for the second time. He was kept in police custody until he was produced in court on 20 May 2021 and charged. He was released on bail that day. His parents instructed him not to leave their residence from 10 am to 10 pm daily.

6 June 2021: Theft of soundbar ($699)

30     On 6 June 2021, at about 8.45 pm, the defendant visited “Best Denki”, an electronics store located at Ngee Ann City (391 Orchard Road).

31     He took a box containing a white Sonos Beam sound bar (valued at $699). He left the store at about 8.55 pm with the item intending to take the item dishonestly without paying for it. (DAC-916277-2021)

32     Staff at the store later discovered the item missing. A review of the store’s CCTV footage showed the defendant taking the item. Subsequently, the police were informed about the theft of the item. During investigations, the defendant denied stealing the item. The item has not been recovered.

33     On 10 June 2021, the defendant was arrested for the third time. He was released on bail on the same day.

34     On 15 June 2021, the defendant was arrested for the fourth time. He remained in police custody until he was produced in court on 17 June 2021. On that day, he was remanded at the Institute of Mental Health (“IMH”) for observation, until 1 July 2021 when he was released on bail.

11 July 2021: Theft of iPads ($1,378) and arcade vouchers

35     On 11 July 2021, at about 9 pm, the defendant visited “Cow Play Cow Moo” (“CPCM”), a video game arcade cum electronics store located at Suntec City Mall (3 Temasek Boulevard). He visited the store with a friend. CPCM was divided into two sections: the video game arcade at the front and the electronics store at the back.

36     At about 9.35 pm, at the electronics store of CPCM, the defendant saw multiple cardboard boxes on the floor. After making sure that no one was looking at him, he carried one box to a corner of the store, in front of a shelf with merchandise, with the intent to open the box and steal its contents. However, as he saw two shoppers at that corner, he put the box down, pretended to browse other merchandise and his mobile phone, and walked away.

37     At about 9.38 pm, after he saw that no one was at that corner, he returned there. After making sure that no one was looking at him or coming to that corner, he knelt and used a key to cut the tape used to seal the box. While he was doing so, a shopper walked to that corner. Hearing the shopper’s approach, the defendant stopped cutting the tape, stood up immediately and pretended to look at merchandise on the shelf.

38     At about 9.40 pm, once he saw that the shopper had left the area, he returned to the box, opened it and took multiple CPCM vouchers from the box and put them in his plastic bag. (The CPCM vouchers functioned as discount vouchers at CPCM’s video game arcade.) A few seconds later, he took more CPCM vouchers from the box and put them in the plastic bag. He then left that area with the vouchers.

39     At about 9.44 pm, he returned to the box and took more CPCM vouchers after checking that no one was looking at him. He placed them inside his plastic bag. While taking more CPCM vouchers from the box, he discovered that there were boxes of Apple iPads inside the box. At about 9.45 pm, he took out one of the boxes of Apple iPads and placed it inside his plastic bag. At about 9.49 pm, he returned to that corner and rearranged the merchandise at the bottom shelf to make space for the box. After doing so, he placed the box on the bottom shelf and took out one more box of Apple iPad. He then took other merchandise from the shelf and placed them in front of the box to obscure it from the view of others, to delay the discovery of the fact that the contents of the box had been stolen.

40     By this time, he had taken the following items (valued at a total of at least $181,378):

(a)     One Apple Wifi iPad 32GB valued at $499;

(b)     One Apple Wifi iPad Air 64GB valued at $879; and

(c)     4000 pieces of CPCM vouchers with a total value of at least $180,000 (which cost a total of $75 to print).

41     He went to look for his friend at the store but the friend was still playing a game. He then left the store and waited there until the friend finished the game and they left the place. He left the store at about 9.53 pm with the items intending to take the items dishonestly without paying for them. (DAC-913618-2021)

42     Subsequently, the store manager, Fu An, discovered that one box of redemption gifts was missing from the store and called the police. Upon reviewing the store’s CCTV footage, it showed the defendant taking the items. The items have not been recovered.

43     On 14 July 2021, the defendant was arrested for the fifth time. He was held in police custody until 15 July 2021, when he was produced in court to be charged. His bail was revoked and he was remanded. He remained in remand until 22 July 2021 when he was produced in court and offered bail. The Court reminded him that bail would not be offered if he should reoffend. He continued to remain in remand until 3 August 2021 when the bail sum was put up.

18 August 2021: Theft at Mustafa Centre ($4,932.70)

44     On 18 August 2021, at about 10.20 pm, the defendant visited Mustafa Centre, a department store located at 145 Syed Alwi Road.

45     He took the following items (with a total value of $4,932.70) from various parts of the store and placed them in a shopping trolley provided by the store:

(a)     Two bottles of John Varvatos Artisan Blue Edition Perfume valued at $90;

(b)     One bottle of Versace Dylan Blue Edition Perfume valued at $68;

(c)     One bottle of Versace Eros Men Edition Perfume valued at $72;

(d)     Two bottles of Mont Blonc Legend Edition Perfume valued at $110;

(e)     Two bottles of Lan Eclat Homme Edition Perfume valued at $88;

(f)     One bottle of Davoff CW Men Perfume valued at $35;

(g)     One bottle of BB London Women Edition valued at $40;

(h)     One bottle of Burberry Brit Men Edition valued at $45;

(i)     Two bottles of Viva La Juicy Gold Couture valued at $116;

(j)     Two bottles of John Varvatos Nick Jonas Edition valued at $138;

(k)     Two bottles of John Varvatos Edition valued at $110;

(l)     One IPhone 12 Pro 512GB Silver valued at $2,149;

(m)     One IPhone 12 Pro 256GB Blue valued at $1,819;

(n)     Two packets of Oreo single serve cookie valued at $3.80;

(o)     Two packets of Jack and Jill Dewberry Cookie valued at $7.20;

(p)     One packet of Bawas Mini Pempek Tallbot valued at $8.90;

(q)     One packet of Ajmir Assorted Tart valued at $13.90;

(r)     One piece of Amil Towel valued at $10.90; and

(s)     One piece of Amil Towel valued at $8.

46     He left the store at about 11.47 pm with the items, intending to take the items dishonestly without paying for them. (DAC-916293-2021)

47     A security supervisor at the store, Logkesh Manian, subsequently discovered that the items were missing. He reviewed CCTV footage of the store, which showed the defendant taking the items and leaving the store with the items inside his trolley.

48     On 22 August 2021, the security supervisor called the police to inform about the theft of the items. The defendant was arrested the same day (for the sixth time). He denied having stolen the items and lied that he had bought them from a friend. He was released on the same day.

49     Only item (b) and one bottle of (e) (at [45] above), worth a total of $112, were recovered.

Sentencing

Charges taken into consideration

50     Apart from the nine proceeded charges, the defendant admitted to seven other offences, which were taken into consideration for the purposes of sentencing. The key details of these charges are summarised below:

(a)     On 8 April 2021, at about 8.02 pm, at Singtel Exclusive Retail Branch located at ION Orchard (2 Orchard Turn), he committed theft of one JBL Pulse 4 portable speaker, valued at $299, an offence punishable under s 380 of the Penal Code. (DAC-909313-2021)

(b)     In April to May 2021, he intentionally distributed intimate recordings of a 25-year-old woman without her consent, by sending four videos of the woman naked and performing sex acts, with her face exposed, to at least ten people over an Instagram account that he had set up to impersonate the woman online, an offence under s 337BE(1) and punishable under s 377BE(3) of the Penal Code. (DAC-917038-2021)

(c)     On 10 May 2021, having been issued a medical certificate certifying that he had acute respiratory symptoms and excusing him from work or school for three days from 10 to 12 May 2021, he left his home without reasonable excuse, and contravened Regulation 3(2(b) of the Infectious Diseases (COVID-19 – Stay Orders) Regulations 2020, an offence punishable under Reg 3(3) of the Regulations. (MAC-908034-2021)

(d)     On 10 May 2021, at about 7.56 pm, at Kinokuniya Bookstore located at Bugis Junction (200 Victoria Street), he committed theft of a magazine valued at $7.00, an offence punishable under s 380 of the Penal Code. (DAC-911331-2021)

(e)     On 13 June 2021, at about 7.29 pm, at Victoria’s Secret located at Vivocity (1 Harbourfront Walk), he committed theft of four items of perfume with a total value of $486, an offence punishable under s 380 of the Penal Code. (DAC-911332-2021)

(f)     On 14 July 2021, at his home, he was found in possession of various items with a total value of $1,975.63, which were reasonably suspected of being stolen, an offence punishable under s 35 of the Miscellaneous Offences (Public Order & Nuisance) Act (Cap 184). (MAC-908033-2021)

(g)     On 25 September 2021 at about 2.40 pm, at JEM (50 Jurong Gateway Road), he committed theft of a Xiaomi smart watch valued at $179, an offence punishable under s 380 of the Penal Code. (DAC-925930-2021)

Antecedents

51     The defendant had a very long list of past offences.

52     On 9 September 2003, he was ordered by the Juvenile Court to undergo probation for 24 months for an offence of theft under s 379 of the Penal Code.

53     On 9 March 2004, he was again ordered by the Juvenile Court to undergo probation for 24 months after being found guilty of two offences of theft under s 379 of the Penal Code, with five other theft offences taken into consideration for sentencing.

54     On 24 January 2008, he was found guilty of an offence of theft under s 380 of the Penal Code. He was ordered to reside in a Juvenile Home for two years.

55     On 4 January 2011, he was convicted of a charge of forgery for the purpose of cheating, with a charge of theft taken into consideration for sentencing. He was sentenced to reformative training: PP v Muhammad Danial Bin Jesman [2011] SGDC 14.

56     On 6 November 2014, he was convicted of three charges of theft under s 380 of the Penal Code, one charge of personating a public servant and one charge of cheating, with four charges of theft and one charge of fraudulent possession of property taken into consideration for sentencing. He was sentenced to 18 months’ imprisonment in total.

57     On 3 February 2016, he pleaded guilty to seven offences of theft under s 380 of the Penal Code, with eleven other theft charges and two charges of possession of suspected stolen property taken into consideration for sentencing. He was sentenced to a total of three years’ imprisonment.

58     He was released under a CRO from 2 November 2017 to 17 September 2018. But he reoffended soon after with a string of theft offences from December 2017 to March 2018. On 16 August 2018, he pleaded guilty to six charges of theft under s 380 of the Penal Code, with eight other theft offences taken into consideration for sentencing. On 5 November 2019 he was sentenced to five years’ CT. He appealed against the sentence: PP v Muhammad Danial Bin Jesman [2020] SGDC 13 (MA-9270-2019-01). On 4 December 2020, the High Court allowed the appeal and substituted the sentence of CT with a total sentence of 42 months’ imprisonment, and an enhanced sentence of 224 days’ imprisonment for his breach of the CRO.

Submissions on sentence

Submissions on MTO and CT

59     After the defendant pleaded guilty on 31 January 2023, both the Prosecution and the Defence were aligned that an MTO pre-sentence report should be called for.[note: 2] Counsel for the defendant highlighted, among other things, an IMH Report dated 30 June 2021 where Dr Ashvini Selvaraj (“Dr Ashvini”) opined (at [26]):

Given repeated incarcerations have not helped in reducing his re-offending rate, an alternative approach of strict community supervision with continued outpatient psychiatric follow-up and therapy sessions with the medical social worker and family service centre is recommended.

60     The matter was adjourned and the defendant was remanded at the IMH for an MTO pre-sentence report to be prepared.

61     An MTO pre-sentence report dated 7 February 2023 (the “MTO Report”) was submitted by Dr Lim Cui Xi (the “Appointed Psychiatrist”). Dr Lim assessed (at [17]) that the defendant was not a suitable candidate for an MTO. While he had a history of Major Depressive Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”) and Conduct Disorder, he was not depressed at the time of the offences and there was no contributory link.

62     The case was next mentioned on 14 February 2023.

(a)     Counsel for the defendant indicated an intention to write to the IMH to seek a clarification report. Counsel wished to clarify, among other things, why it was assessed that there was no contributory link. [note: 3] Counsel had tendered a psychological report dated 4 June 2022 (the “Psychological Report”) prepared by Dr Julia CY Lam (“Dr Lam”) of Forensic Psych Services which indicated otherwise. Dr Lam’s opinion (at [32] of the Psychological Report) was that the defendant’s stealing behaviour was a manifestation of his Antisocial Personality Disorder (“ASPD”), and she agreed with Dr Ashvini’s recommendation (above, at [59]).

(b)     The Prosecution objected, submitting that the assessment of the Appointed Psychiatrist was final and conclusive. The Prosecution also submitted that a suitability report for CT should be called instead, as the defendant was a recalcitrant offender who had not reformed despite his past incarcerations.[note: 4]

(c)     I accepted the submission of the Prosecution that a pre-sentencing report for CT should be called for. I also allowed counsel for the defendant to seek clarifications from the Appointed Psychiatrist by way of written questions through the court. The matter was adjourned for the CT pre-sentence report to be submitted and for the Defence to prepare the questions to be put to the Appointed Psychiatrist.

63     In a Pre-Sentencing Report For Corrective Training dated 7 March 2023 (the “CT Report”, which was filed on 8 March 2023), the defendant was found to be physically and mentally suitable to undergo CT. It was stated at the conclusion of the CT Report (at p 9) that:

Danial presented with a persistent history of engaging in theft offences and presented with fast relapses after being released from prison. Danial’s recurrent failure to resist urges and impulses relating to theft, despite full awareness of the legal consequences and prior convictions, reflects his high risk of reoffending. While Danial sought professional help in the community after his previous release from prison, Danial’s fast relapse and arrest prevented him from having sustained engagement with professional treatment providers. It would be helpful for Danial to continue to receive intervention to target his impulse control issues relating to theft behaviours.

64     Meanwhile, the Defence also tendered a supplemental report by Dr Lam dated 18 March 2023 (the “Supplemental Psychological Report”) in response to the MTO Report (above, at [61]). In the Supplemental Psychological Report, Dr Lam opined (at [9]-[10]) that the defendant’s “untreated ADHD contributed to his offence commission” and “ADHD is a treatable condition”.

65     The Appointed Psychiatrist subsequently submitted a very brief supplementary report dated 4 April 2023 (the “Supplementary MTO Report”). She had considered the CT Report and Dr Lam’s Psychological Report, and maintained her assessment that the defendant was not recommended for an MTO. The Appointed Psychiatrist added at [3]:

I agree with Dr Lam that his theft behaviours are part of his Anti-Social Personality Disorder in paragraph 32 of her report. Therefore, he does not qualify for the Mandatory Treatment Order.

66     The case was next mentioned on 3 May 2023. It was agreed among parties that the Supplementary MTO Report was unclear, and that further clarification should be sought from the Appointed Psychiatrist.[note: 5] Among other things, it was unclear if the Appointed Psychiatrist had considered Dr Lam’s Supplemental Psychological Report. Meanwhile counsel for the defendant filed a further Plea-in-Mitigation on 3 May 2023 which set out (at [5]-[9], [12]-[13]) certain aspects of the MTO Report and the MTO Supplementary Report that were unclear. (This latest Plea-in-Mitigation also submitted (at [58]-[68]) that the defendant should not be sentenced to CT.)

67     The case was then adjourned to 24 May 2023 for the Appointed Psychiatrist to attend so that parties could ask questions to clarify her reports.[note: 6] The Appointed Psychiatrist clarified, among other things, that:

(a)     the defendant was not assessed for ADHD as his offences were “not impulsive” (meaning that ADHD was not a contributing factor to his offences);[note: 7] and

(b)     while she agreed that the defendant’s theft behaviours were part of his ASPD, ASPD was not treatable by psychiatric treatment, hence the defendant did not qualify for an MTO.[note: 8]

68     Following the clarifications from the Appointed Psychiatrist, the Defence accepted that MTO would not be a sentencing option. I also informed parties that I was not inclined to order CT, given that the sentence of CT imposed for the defendant’s previous set of offences was overturned on appeal. Parties were invited to make further submissions on the appropriate imprisonment sentence for each offence, the global sentence, and the enhanced sentence for the defendant’s breach of the CRO. The matter was adjourned for parties to put in further written submissions.

Submissions on imprisonment and enhanced sentence

69     The next mention was fixed on 22 June 2023. The defendant did not attend the mention as he had a medical certificate from a prison doctor. Counsel informed that the defendant might be seeking a Newton hearing on the basis that his underlying medical conditions might materially affect the sentence, even if MTO was not ordered. Meanwhile, the Prosecution had filed a further address on sentence seeking sentences ranging from 10 to 40 months’ imprisonment per charge, a global sentence of 60 months’ imprisonment, and an enhanced sentence of the maximum of 391 days’ imprisonment for the defendant’s breach of the CRO (if the court declined to impose CT). [note: 9]

70     The matter was next mentioned on 18 July 2023. The Prosecution and the Defence submitted on the sentence. Counsel for the defendant tendered further sentencing submissions seeking a global sentence of 36 months’ imprisonment and an enhanced sentence of 391 days’ imprisonment.[note: 10] The Defence’s main basis for seeking a sentence substantially shorter than that sought by the Prosecution was that Dr Lam, the psychologist engaged by the Defence, had opined that there was a contributory link between the defendant’s ADHD and the offences, and asked that a Newton hearing be held.[note: 11] As has been noted earlier (at [67(a)] above), the Appointed Psychiatrist was of a different opinion. Nonetheless I accepted that the Defence’s assertions, if they could prove it, could have a material impact on the sentence. The matter was adjourned to a pre-trial conference (“PTC”) for arrangements to be made for a Newton hearing.

71     Following that mention, nine PTCs were held from 14 August 2023 to 24 June 2024. Some time was taken for counsel to confirm whether the Criminal Legal Aid Scheme (“CLAS”) would pay for a private psychiatrist to assess whether the defendant’s ADHD had a contributory link to the offending. (Dr Lam was a psychologist and not a psychiatrist.) At some point, Mr Leonard Chua, the counsel who had been appearing for the defendant, left his law firm; another lawyer from the firm took over and appeared for the defendant from January 2024. In March 2024, the law firm applied to be discharged from further acting for the defendant. The defendant then requested for time to apply again to CLAS and to the Public Defender’s Office (“PDO”) for legal representation. When both CLAS and PDO declined to act for the defendant, he asked for time to seek assistance from his Member of Parliament to appeal for legal representation. This led to some delay. Eventually, Ms Jeanny Ng agreed to come on board and act for the defendant. By that time, the defendant had abandoned his quest for a Newton hearing: he was informed by a letter dated 7 May 2024 from Low Yung Ling, a neuropsychologist from Promises Healthcare, that “after careful consideration, Dr. Rajesh [a psychiatrist] has concluded that there is no link between your offence and your attention deficit hyperactivity disorder (ADHD) diagnosis.”

72     The case was fixed for a further mention on 26 August 2024 for Ms Jeanny Ng to tender a mitigation plea. Counsel tendered a brief mitigation plea in which she submitted, among other things, that a sentence of CT would be unsuitable.[note: 12]

Sentencing considerations

Dominant sentencing considerations

73     In deciding on the sentence, I considered the dominant sentencing considerations to be deterrence and prevention. The defendant had a long list of past convictions for theft, for which he had undergone probation, residence at a Juvenile Home, reformative training and periods of imprisonment of increasing duration (above at [51]-[58]). These have not rehabilitated him or deterred him from further offending. His rehabilitative prospects were not favourable at all, given his repeated and relentless reoffending each time soon after his release from custody. He must be deterred and prevented from further offending. The appropriate sentence to achieve these objectives would be a substantial term of imprisonment.

Individual sentences and global sentence

74     The prescribed punishment for theft under s 380 of the Penal Code was imprisonment for a term of up to seven years, and the offender was also liable to a fine.

75     In deciding on the sentence for each offence, it was appropriate to calibrate the sentence broadly according to the value of the items stolen as a proxy of the harm caused. It was also appropriate to apply the principle of escalation given his repeated offending. As noted above at [58], his most recent previous conviction was for six offences of theft, with eight other theft offences taken into consideration for sentencing. The offences for which he was convicted involved the theft of items with a total value ranging from $898 to $2,596. The High Court imposed 21 months’ imprisonment for each charge, with two sentences running consecutively, giving a global sentence of 42 months’ imprisonment. An enhanced sentence of 224 days’ imprisonment was also imposed for the defendant’s breach of his CRO at that time. These sentences previously imposed provided a helpful reference point for applying an escalation in determining the sentences for the present offences.

76     With these considerations in mind, I agreed with most of the sentences submitted by the Prosecution in the Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023. In my judgment, the sentences submitted were generally fair and appropriate. The following sentences were thus imposed for the individual offences:

(a)     For DAC-911328-2021, where the defendant on 5 April 2021 committed theft of a smart watch and portable speaker with a total value of $328.90, a sentence of 15 months’ imprisonment.

(b)     For DAC-911329-2021, where he on 9 April 2021 committed theft of an Apple Macbook Air valued at $1,299, a sentence of 20 months’ imprisonment.

(c)     For DAC-911330-2021, where he on 30 April 2021 committed theft of a drone valued at $1,449, a sentence of 20 months’ imprisonment.

(d)     For DAC-909314-2021, where he on 2 May 2021, at 5.08 pm, committed theft of a Nintendo Switch gaming console valued at $499, a sentence of 15 months’ imprisonment.

(e)     For DAC-917037-2021, where he on 2 May 2021, at 7.32 pm, committed theft of two bottles of perfume valued at a total of $119.50, a sentence of 10 months’ imprisonment.

(f)     For DAC-909291-2021, where he on 17 May 2021 committed theft of various earpieces with a total value of $436, a sentence of 15 months’ imprisonment.

(g)     For DAC-916277-2021, where he on 6 June 2021 committed theft of a soundbar valued at $699, a sentence of 15 months’ imprisonment.

(h)     For DAC-913618-2021, where he on 11 July 2021 committed theft of two iPads with a total value of $1,378, as well as 4,000 pieces of CPCM vouchers with a total value of at least $180,000, a sentence of 20 months’ imprisonment.

(i)     For DAC-916293-2021, where he on 18 August 2021 stole numerous items from the Mustafa Centre with a total value of $4,932.70, a sentence of 30 months’ imprisonment. This was lower than the sentence of 40 months suggested by the Prosecution. In my judgment, a sentence of 30 months, which reflected the higher value of the items stolen compared with the other charges, was an adequate and proportionate escalation from the sentence of 21 months that the defendant received for his previous set of offences.

77     As required by the law, at least two sentences had to run consecutively. In my judgment, the global sentence for the present offences should reflect an escalation from the global sentence of 42 months’ imprisonment that the defendant received for his previous offences. However, I did not consider it necessary for the global sentence to be as high as the 60 months sought by the Prosecution. Therefore, I ordered that the sentences for the following two offences run consecutively: DAC-911330-2021 (20 months) and DAC-916293-2021 (30 months), giving a total sentence of 50 months’ imprisonment. In my judgment, a total sentence of 50 months’ imprisonment would adequately reflect the defendant’s culpability and the harm caused by his present offences, with an escalation in view of his repeated offending, without being disproportionate or crushing.

Enhanced sentence for breaching CRO

78     After the defendant’s conviction and sentence for his previous set of offences, he was released on 27 March 2021 under a CRO. A basic condition of the CRO was that he was not to commit any fresh offence during the period of the conditional remission from 27 March 2021 to 30 April 2022. He committed all the present offences during this period while the CRO was in force. He was thus in breach of the CRO and liable to enhanced sentences of imprisonment under s 50T(1)(a) of the Prisons Act. These ranged from 391 days for the earliest offence committed on 5 April 2021 (DAC-911328-2021) to 256 days for the latest offence committed on 18 August 2021 (DAC-916293-2021).

79     I accepted the submission of the Prosecution that the offences would fall within Band 3 of the framework set out in Abdul Mutalib bin Aziman v PP [2021] 4 SLR 1220 (“Abdul Mutalib”).[note: 13] The defendant reoffended on 5 April 2021, which was only slightly more than a week after his release on 27 March 2021. He continued to reoffend numerous times despite being re-arrested and released on bail six times (above at [25], [29], [33], [34], [43], [48]). His offending stopped only in September 2021 after he was remanded. His rehabilitative prospects were clearly unfavourable. I accepted the submission of the Prosecution that the maximum enhanced sentence of a total of 391 days’ imprisonment should be imposed. Accordingly:

(a)     for DAC-911330-2021, an enhanced sentence of 191 days was imposed; and

(b)     for DAC-916293-2021, an enhanced sentence of 200 days was imposed,

giving a total enhanced sentence of 391 days for the breach of the CRO.

Sentence imposed

80     In summary, the sentences imposed were as follows:

Charge

Offence

Sentence

DAC-911328-2021

Theft ($328.90)

15 months’ imprisonment

DAC-911329-2021

Theft ($1,299)

20 months’ imprisonment

DAC-911330-2021

Theft ($1,449)

20 months’ imprisonment (Consecutive)

Enhanced sentence of 191 days’ imprisonment

DAC-909314-2021

Theft ($499)

15 months’ imprisonment

DAC-917037-2021

Theft ($119.50)

10 months’ imprisonment

DAC-909291-2021

Theft ($436)

15 months’ imprisonment

DAC-916277-2021

Theft ($699)

15 months’ imprisonment

DAC-913618-2021

Theft ($1,378, and arcade vouchers worth at least $180,000)

20 months’ imprisonment

DAC-916293-2021

Theft ($4,932.70)

30 months’ imprisonment (Consecutive)

Enhanced sentence of 200 days’ imprisonment

Total sentence: 50 months’ imprisonment; enhanced sentence of 391 days’ imprisonment.

Backdating of sentence: The sentence was backdated to 17 June 2021 (date of defendant’s remand at IMH) and to take into account the periods of remand and to exclude the periods during which he was on bail. He was on bail for the following periods:

- from 1 July 2021 to 15 July 2021, and

- from 3 August 2021 to 28 September 2021

(He has been in remand since 28 September 2021)[note: 14]



81     He is presently serving the sentence.

[note: 1]Statement of Facts of the Prosecution.

[note: 2]Plea-in-Mitigation filed on 31 January 2023 at [5]. Transcript, 31 January 2023, 15:9-15 (p 15 lines 9-15).

[note: 3]Transcript, 14 February 2023, 1:14-22, 3:8-30.

[note: 4]Prosecution’s Sentencing Submissions On Calling For Corrective Training Suitability Report filed on 10 February 2023. Transcript, 14 February 2023, 1:24–2:1-3, 14-32.

[note: 5]Transcript, 3 May 2023, 1:13–2:26.

[note: 6]Transcript, 24 May 2023, 1:16–19:27.

[note: 7]Transcript, 24 May 2023, 15:25–16:7.

[note: 8]Transcript, 24 May 2023, 18:22–19:20.

[note: 9]Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023.

[note: 10]Further Sentencing Submissions filed on 13 July 2023 at [24], [31]-[32].

[note: 11]Transcript, 18 July 2023, 1:29–2:12.

[note: 12]Further Plea-in-Mitigation dated 15 August 2024 at p 2, third paragraph.

[note: 13]Prosecution’s Skeletal Submissions On Custodial Sentence filed on 22 June 2023 at [4]-[5].

[note: 14]On further consideration, the brief periods that the defendant spent in police custody following some of his arrests could also have been taken into account in his sentence: 18-20 May 2021 (above at [29]); 15-17 June 2021 (above at [34]), 14-15 July 2021 (above at [43]).

"},{"tags":["Criminal Law – Offences – Section 5(1) read with section 14 of the Computer Misuse Act 1993","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-30","court":"District Court","case-number":"District Arrest Case No 910226 of 2024, Magistrate's Appeals No MA-9173-2024-01","title":"Public Prosecutor v Wu Zhiwei","citation":"[2024] SGDC 254","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32239-SSP.xml","counsel":["Grace Chua (Attorney-General's Chambers) for the Public Prosecutor","Lim Wen Yang Bryan (Hoh Law Corporation) for the Accused."],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Ong Chin Rhu","html":"Public Prosecutor v Wu Zhiwei

Public Prosecutor v Wu Zhiwei
[2024] SGDC 254

Case Number:District Arrest Case No 910226 of 2024, Magistrate's Appeals No MA-9173-2024-01
Decision Date:30 September 2024
Tribunal/Court:District Court
Coram: Ong Chin Rhu
Counsel Name(s): Grace Chua (Attorney-General's Chambers) for the Public Prosecutor; Lim Wen Yang Bryan (Hoh Law Corporation) for the Accused.
Parties: Public Prosecutor — Wu Zhiwei

Criminal Law – Offences – Section 5(1) read with section 14 of the Computer Misuse Act 1993

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9173/2024/01.]

30 September 2024

District Judge Ong Chin Rhu:

1       The Accused, Mr Wu Zhiwei, pleaded guilty to an amalgamated charge under section 5(1) read with section 14 of the Computer Misuse Act 1993 (“the Act”) for causing unauthorised modifications to the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd. I sentenced the Accused to 18 months’ imprisonment.

2       The Accused being dissatisfied with the sentence has filed an appeal. He is currently on bail pending the hearing of his appeal.

The Charge

3       The details of the charge which the Accused pleaded guilty to were as follows:

You […] are charged that you, between January 2022 and December 2022, in Singapore, did knowingly cause unauthorised modifications to the contents of the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd, to wit, not less than 297 SIM cards were registered for and activated using the personal information of 38 people without their consent, which modifications were without the authorisation of SIMBA Telecom Pte Ltd, and you have thereby committed an offence punishable under Section 5(1) read with Section 14 of the Computer Misuse Act 1993.

Facts

4       The Accused admitted to the facts set out in the Statement of Facts (“SOF”) without qualification:

1.    The accused is Wu Zhiwei, a 30-year-old Singaporean male, [NRIC No], [Date of birth]. At the material time, he was the owner of a mobile phone retail shop “TT Concept Pte Ltd”, located at Block 81 Whampoa Drive #01-907 Singapore 320081 (the “store”).

Facts pertaining to the charge DAC-910226-2024

2.    As the owner of the store, the accused ordered and received supplies of physical SIM cards from various telecommunication companies. The telecommunication companies used various applications, websites and portals for the registration of the SIM cards and as a dealer, the accused was given access to the login information on [the] said applications, websites and portal, for SIM card registration on behalf of his customers. One of these telecommunication companies was SIMBA Telecom Pte Ltd.

3.    Before issuing a SIM card from SIMBA Telecom Pte Ltd, the customer had to be physically present and the accused was required to physically verify the customer’s identity and particulars against their NRIC, employment pass or passport. The accused would then logon to the SIM card registration portal where he would select the type of SIM card the customer wished to register. He would click on the “sign up’ button for the customer. The accused would then retrieve a physical SIM card and key in the Integrated Circuit Card Identification (ICCID) details of the physical SIM card on the portal. Five available phone numbers would be generated on the website and the customer would be required to choose a preferred phone number. Once selected, the accused would be required to key in the customer’s personal particulars, before uploading a copy of the customer’s NRIC or Passport to complete the registration. Upon successful registration, the portal will transmit all of this data to SIMBA Telecom Pte Ltd’s computer system where it will be stored.

4.    Sometime in 2021, a man known as ‘Ah Boy’ arrived at the store. ‘Ah Boy’ informed the accused that he had gotten a group of customers for the store. The customers would be purchasing SIM cards from the accused and on average, they each required five to 10 SIM cards with different phone numbers. The customers arrived at the store to manually purchase the SIM cards. After some time, the same few customers kept returning over and over again to purchase SIM cards. When asked, they informed the accused that they were paid to purchase the SIM cards from him. ‘Ah Boy’ eventually collected these SIM cards from the customers. After some time, ‘Ah Boy’ informed the accused that he would simply send the accused photographs of various NRICs and Passports belongings [sic] to various individuals. The accused never verified the identities of any of these individuals and would simply register the SIM cards per the names and particulars furnished. Many of the individuals whose particulars were furnished did not know that their particulars were used in this manner and did not consent to the registering of a SIM card.

5.    The accused’s actions as described in paragraphs 4 above were all was [sic] performed without SIMBA Telecom Pte Ltd’s authorisation. The accused knew at all times that his actions were against SIMBA Telecom Pte Ltd’s policies and against the law but wanted to make fast cash and continued in his wrongdoing.

6.    The accused only stopped selling the SIM cards to ‘Ah Boy’ in December 2022 because ‘Ah Boy’ defaulted on payment.

7.    On 30 March 2023, at or about 3pm, a police raid was conducted to target errant subscribers and telco retailers for fraudulent registration of SIM cards. Investigations revealed that between January 2022 and December 2022, the accused had registered a total of 297 SIM cards with the personal information of 38 people, which were used as such by the accused without these individuals’ consent. 79 SIM cards were later used for illegal scam activities.

8.    By virtue of the above, from January 2022 and December 2022, the accused committed acts which he knew would cause unauthorised modifications to the contents of the computer system, namely the computer system for the registration of SIM cards belonging to SIMBA Telecom Pte Ltd, by registering 297 SIM cards with the personal information of 38 people without their consent with the aforesaid computer system. This was performed without the authorisation of SIMBA Telecom Pte Ltd, and the accused has thereby committed an offence under Section 5(1) read with Section 14 of the Computer Misuse Act 1993.

Sentencing

Prescribed punishment

5       Section 5(1) of the Act stated:

5.—(1)    Subject to subsection (2), any person who does any act which the person knows will cause an unauthorised modification of the contents of any computer shall be guilty of an offence and shall be liable on conviction —

(a)    to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both;

Antecedents

6       The Accused was untraced.

Prosecution’s Submissions on Sentence

7       The prosecution tendered written submissions on sentence, supplemented by oral submissions in Court, and sought a sentence of 24 to 26 months’ imprisonment on the charge.

8       The prosecution began by submitting that the dominant sentencing consideration for offences under the Act was deterrence. Referring to the decision in Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR(R) 653 at [20] to [21], the prosecution explained that this was because such offences would undermine public and international confidence in the commercial integrity of Singapore’s computer systems and were difficult to detect. Further, the proliferation of offences like the ones committed by the Accused was also particularly damaging as they provided an anonymous channel of communications for illicit activities.

9       The prosecution proceeded to highlight the following considerations which enhanced the Accused’s culpability:

(a)     The Accused committed the offences out of greed as he wanted to make fast cash.

(b)     The offences were committed over a protracted period of time for about a year.

(c)     The Accused’s offending was persistent. Despite knowing that the customers were paid to purchase SIM cards from him, the Accused escalated his offending by registering multiple SIM cards based on particulars provided to him by “Ah Boy” without performing any due diligence or checks and only stopped selling SIM cards to “Ah Boy” when the latter defaulted on payment.

(d)     The offences were difficult to detect.

(e)     Actual harm was caused as a number of the SIM cards registered by the Accused were used for illegal scam activities and implicated innocent individuals whose personal details were misused.

10     Against these considerations, the prosecution noted that the Accused had pleaded guilty and therefore did not object to the maximum 30% sentencing reduction being applied.

11     Finally, the prosecution referred to the case of Public Prosecutor v Jimmy Ong Wei Siong [2022] SGDC 277 (“Jimmy Ong”) where the offender was sentenced to 24 months’ imprisonment for similar offences under the corresponding provisions of the earlier version of the Act. The prosecution submitted that while Jimmy Ong involved the registration of more SIM cards, fewer SIM cards were traced to illegal operations. Further, the offending in the present case was over a longer period and more sophisticated. Therefore, prosecution concluded that their position of 24 months’ imprisonment was fair.

Mitigation & Defence’s Submissions on Sentence

12     The defence tendered a written plea-in-mitigation incorporating their submissions on sentence and asked the Court to impose the maximum fine of $10,000 against the Accused, or alternatively, an imprisonment term of not more than six months.

13     In mitigation, the defence set out the Accused’s personal and family background and stated that the Accused had been running the mobile phone retail shop mentioned in the SOF as a “one-man-show” since mid-2021 to provide for his family. One of the services he provided was the sale of SIMBA SIM cards and he would earn a 40% profit (i.e. $4) from each $10 SIM card sold. At the time of the offence, it was permissible for persons to purchase multiple SIM cards with one identification document and there would be customers who would require multiple SIM cards for their family or business.

14     The Accused was extremely remorseful as he had failed to appreciate the severity of his wrongdoings. He acknowledged that he was wrong to have registered and sold SIM Cards to “Ah Boy” without exercising the due diligence required.

15     The defence pleaded for leniency by pointing to the Accused’s clean records, cooperation with the police during investigations and early plea of guilt. The defence added that his family would face financial difficulties if the Accused was required to serve a lengthy imprisonment term and submitted that the court proceedings already had a strong deterrent effect on him.

16     Next, the defence referred to two sentencing precedents in support of its sentencing position.

17     The defence began by studying the case of Jimmy Ong, the sentencing precedent cited by the prosecution. The defence noted that the District Court in that case had suggested the following sentencing factors at [24] of its decision:

(a)     the period of the offending;

(b)     the scale of the operations;

(c)     the quantity of cards generated and where they were intended for; and

(d)     the personal role and motivations of the offender.

18     After setting out the background facts in Jimmy Ong, the defence pointed to several distinguishing factors between that case and the present one which, the defence submitted, should result in a significant downward calibration in the sentence for the Accused, as compared to the 24 months’ custodial term meted out in Jimmy Ong.

19     Firstly, the court in Jimmy Ong had placed significant weight on the offender’s long list of antecedents, which suggested a blatant disregard for the law. It was also noted that some of the offender’s offending actions took place while he was investigated by the authorities for Customs and Excise duty evasion. In contrast, the Accused was a first-time offender.

20     Secondly, the defence submitted that the period of offending in Jimmy Ong was substantially longer as the offender’s criminal activities had actually gone on for about five years. While his earlier wrongdoings did not form the subject matter of the charges in that case, they nevertheless formed the relevant backdrop to the offences and were therefore duly considered by the court in deciding sentence. In the present case, the Accused’s period of offending was one year.

21     Thirdly, the scale of offending in Jimmy Ong was much more substantial. Not only did the offender generate a larger number of pre-registered SIM cards (known as “Space Cards”) using his customer’s particulars without their knowledge by exploiting a loophole in the registration system, he sold the cards at a much higher price and earned a profit of about $5,000 a month by doing so. The offender escalated his offending behaviour by instructing his employee to pre-register the cards for him and purchased large quantities of additional cards from unknown persons which he upsold for profit. The offender in Jimmy Ong further expanded his operations by receiving numerous passports every month from two individuals which he used to register Space Cards and for which he would be paid between $2,000 to $4000 per transaction. Hence, the defence argued that while the main focus of the offender’s business in Jimmy Ong was his illegal activities, the Accused’s main focus in running his shop had always been on selling legitimate products and providing legitimate services.

22     Fourthly, the role of the offender in Jimmy Ong, as the mastermind of his offences, was much more active with a much higher degree of premeditation whereas the Accused played a passive role in committing his offences and did not initiate any of the transactions. The Accused was approached by “Ah Boy” and merely dealt with “Ah Boy” and the customers recommended by “Ah Boy”. He did not know what “Ah Boy” would do with the SIM cards purchased.

23     Fifthly, the offender in Jimmy Ong earned substantially more profit from his criminal acts than the Accused. Further, even if there were any illegal activity carried out using the SIM cards provided by the Accused, he did not profit from them.

24     Finally, the SIM cards involved in Jimmy Ong comprised 616 cards in the proceeded charges and 112 cards in the charges taken into consideration. This was more than double the 297 cards involved in the present case.

25     The defence added that the Accused’s actions were not sophisticated in nature. The offences were also not difficult for the authorities to detect as there was always a paper trail which would allow the authorities to trace the SIM cards back to the Accused’s store.

26     The defence then referred to the case of Public Prosecutor v Tan Chinn (“Tan Chinn”), an unreported decision which was mentioned at [21] of Jimmy Ong. The offender had registered Space Cards using the particulars of legitimate customers without their consent over the period of about a year. He was sentenced to six months’ imprisonment.

27     Based on the above, the defence urged the Court to temper justice with mercy and apply a significant downward calibration from the sentence of 24 months’ meted out in Jimmy Ong.

Decision on Sentence

Sentencing considerations & principles

28     In deliberating sentence, I agreed with the prosecution’s submission that deterrence was the predominant sentencing consideration in offences of this nature. In this regard, I was of the view that sentencing in cases involving the illicit registration of SIM cards would be informed by the following offence-specific elements:

(a)     the period of offending;

(b)     the scale of the operations;

(c)     the level of sophistication and premeditation involved;

(d)     whether there was syndicate involvement;

(e)     the quantity of SIM cards registered;

(f)     harm (including potential harm) occasioned by the offences;

(g)     the motivation of the offender, including whether there was any monetary gain or benefit derived by the offender;

(h)     the role played by the offender; and

(i)     the degree of persistence of offending.

(1)   The offences were committed over a prolonged period and there was syndicate involvement

29     Turning to the facts in the present case, I agreed with the prosecution’s observation that the Accused had committed the offences in the amalgamated charge over a protracted period of about a year. In fact, while the full scale and extent of the Accused’s dealings with “Ah Boy” and the group of customers introduced by him were unclear, the facts admitted by the Accused showed that, even before the period stated in the charge, the Accused had, since sometime in 2021, registered multiple SIM cards for a number of customers who he knew were paid to purchase the cards repeatedly from him.

30     Further, the fact that “Ah Boy” went on to send numerous photographs of NRICs and passports to the Accused clearly pointed to a nefarious element in the transactions and indicated the involvement of a criminal syndicate. Thus, while the defence emphasised that the Accused did not know what “Ah Boy” would do with the SIM cards, it was, in my view, reasonably foreseeable that the SIM cards could fall into the wrong hands and be employed in illegal activities.

31     On the other hand, I agreed with the defence’s submission that the Accused’s offending conduct was not particularly sophisticated. There was also minimum planning or premeditation on his part as his role was to register SIM cards based on particulars provided by “Ah Boy”.

(2)   Substantial number of SIM cards were wrongfully registered, giving rise to potential and actual harm

32     As regards harm, I was of the view that the Accused’s criminal activities gave rise to both potential and actual harm. As highlighted by the court at [10] of Jimmy Ong, such SIM cards registered using innocent third parties’ particulars allowed malicious actors access to Singapore’s telecommunication systems and data networks while masked by a cloak of anonymity. Each of the 297 SIM cards registered by the Accused with particulars furnished by “Ah Boy” represented an instance where the control mechanisms put in place to safeguard access to our communications infrastructure was breached, and resulted in a local phone number issued which could not be traced to its actual user. As observed by the District Judge in Jimmy Ong “[w]ith these SIM cards, users can reach out to and contact others – whether they be other similar associates or other unsuspecting parties – to further their activities and /or to advance their propositions, and be assured that tracing attempts by those parties/authorities of the SIM card’s subscriber details would lead to naught, and instead result in some other hapless innocent individual being investigated instead”.

33     Indeed, this was exactly what happened in this case. Not only did the 38 individuals suffer their personal information being misused for the registration of the 297 SIM cards, actual harm was wrought when 79 of these SIM cards were later used for illegal scam activities and the innocent individuals were visited with the ignominy of being implicated. While the Accused was not directly involved in perpetuating the downstream offences, his unlawful acts were critical in enabling and facilitating such wrongdoings.

(3)   The Accused was motivated by personal gain and continued his offending despite knowing that the acts were illegal

34     The Accused’s offences were clearly motivated by personal gain. He had admitted to committing the offences despite knowing at all times his actions were unlawful as he wanted to make fast cash. Indeed, as submitted by the prosecution, even though the Accused found out that the customers introduced by “Ah Boy” were paid to purchase SIM cards from him, the Accused escalated his actions by simply registering SIM cards without performing any due diligence or checks. Further, the Accused had persisted in his offending and stopped only when it no longer profited him as “Ah Boy” had defaulted on payment.

(4)   The offences were difficult to detect

35     I agreed with the prosecution’s contention that the Accused’s offences were difficult to detect. Although the defence argued that there would be a paper trail leading from each SIM card registered to the Accused, in reality, the Accused’s surreptitious activities had gone undetected for more than a year and it was only in March 2023 that the police conducted the raid that uncovered his offences. Further, the facts admitted by the Accused showed that, by the time the offending SIM cards were traced to him, a large number had already been utilised in perpetuating criminal activity.

The maximum fine of $10,000 would be wholly inadequate

36     Following from the above, I was of the view that the maximum fine proposed by the defence would be manifestly inadequate to reflect the Accused’s overall criminality as the custodial threshold has clearly been crossed in this case.

Sentencing precedents considered

37     I therefore turned to deliberate on the appropriate imprisonment term to be meted out. In doing so, I had carefully considered the sentencing precedents highlighted by both parties.

38     Referring first to Tan Chinn, as acknowledged by the defence, this was an unreported decision mentioned at [21] of Jimmy Ong and the details of the case (including the number of SIM cards involved) were not available before me. Hence, I was of the view that Tan Chinn was of little precedential value and afforded no assistance to the defence.

39     I next turned to consider Jimmy Ong, the only reported decision cited by the parties. The offender in Jimmy Ong faced a total of four amalgamated charges under section 5(1) read with section 11A[note: 1] of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) for knowingly effecting unauthorised modifications to the contents of the computer systems of various telcos. Like the Accused, the offender ran a mobile phone and accessories shop. After registering a legitimate SIM card selected by a customer at his shop, he did not close the registration page but registered additional SIM cards against the customer’s particulars without his knowledge. These resultant pre-registered SIM cards were sold at a much higher price than legitimate ones. The offender pleaded guilty to two charges (involving a total of 616 SIM cards) and admitted and consented to having two charges (involving a total of 112 SIM cards) be taken into consideration for the purposes of sentencing. He was sentenced to a total of 24 months’ imprisonment.

40     As mentioned earlier in these grounds, the prosecution relied on Jimmy Ong and urged the Court to impose a similar sentence of 24 months’ imprisonment on the Accused. While the prosecution acknowledged that Jimmy Ong involved the use of more SIM cards, the prosecution argued that the offences in the present case was more prolonged and sophisticated. The defence, on the other hand, launched into a detailed comparison between Jimmy Ong and the present case[note: 2] and submitted that there should be a significant downward calibration in sentence for the Accused.

41     Having carefully studied the facts in Jimmy Ong, I was in general agreement with the defence that there were several substantial distinguishing factors. As the points of distinction have been enumerated extensively by the defence, I do not propose to set them out in detail, but summarise the main points below.

(a)     Firstly, though the proceeded charges in Jimmy Ong focused on offences committed between May to October 2021, the total duration of offending was in fact about 5 years.[note: 3] This was substantially longer than the period of offending in the present case.

(b)     Secondly, the scale of offending in Jimmy Ong was also more extensive. Based on the charges in that case, the number of SIM cards generated totalled 728. The offender also instructed his employee to pre-register the cards for him[note: 4] and earned about $5,000 a month from the creation and sale of the SIM cards[note: 5]. He further escalated his offending by regularly receiving numerous passports from unknown persons and was paid $2,000 to $4,000 per transaction for mass-registering SIM cards using the identities therein[note: 6]. To expand the scale of his criminal enterprise, the offender bought illegitimate SIM cards from unknown persons and upsold them for a profit[note: 7].

(c)     Thirdly, the conduct of the offender in Jimmy Ong was comparatively more egregious as he had exploited the technological loophole and misused the particulars of his own customers to register the illegitimate SIM cards.[note: 8]

(d)     Further, contrary to the prosecution’s submission that the offending in the present case was more sophisticated, the court in Jimmy Ong concluded that the offending in that case was “well-planned, sophisticated and entirely premeditated” due to the deliberate steps and subterfuge employed in registering each SIM card[note: 9].

(e)     Pertinently, the court in Jimmy Ong found that specific deterrence was firmly engaged as the offender had 54 pages of antecedents, and had committed the offences relating to the SIM cards while he was being investigated and dealt with for his many Customs and Excise evasion offences.[note: 10]

42     In contrast, the current case was the Accused’s first brush with the law. His offending conduct was also less sophisticated compared to that in Jimmy Ong as he played a relatively passive role by registering the SIM cards using particulars given to him by “Ah Boy”. The Accused’s transgressions were of a smaller scale and consequently, the profits reaped by the Accused also paled in comparison to that in Jimmy Ong.

43     That said, it was important to note that the number of SIM cards linked to illicit activities in the present case (79 cards used for illegal scam activities) was more than double that in Jimmy Ong (34 SIM cards used by unlicensed moneylending syndicate[note: 11]). In my judgment, this evinced a greater degree of actual harm flowing from downstream offences facilitated by the Accused’s wrongdoings.

44     I would also hasten to add that while Jimmy Ong may be distinguished on several fronts, it was nevertheless germane as a useful reference point for calibrating sentence in this case. More importantly, although I was of the view that a relatively shorter custodial term (than the 24 months in Jimmy Ong) should be meted out against the Accused, the sentence imposed in this case must still be sufficiently robust to reflect Accused’s overall criminality and effectively deter like-minded offenders.

Mitigating factors

45     In considering sentence, I had given the Accused credit for his cooperation during investigations. In recognition of his early plea of guilt as a sign of his genuine remorse and contrition, I have accorded him a 30% reduction from the sentence he would otherwise have received had he claimed trial. On the other hand, hardship suffered by the Accused’s family as a consequence of his incarceration would carry little mitigating value: Lai Oei Mui Jenny v Public Prosecutor [1993] 2 SLR(R) 406 at [11].

Conclusion

46     Having carefully weighed all the sentencing considerations, I was of the view that a sentence of 18 months’ imprisonment would be appropriate in this case. In my view, this sentence was proportionate to the Accused’s culpability and sufficient for the purpose of deterrence.

[note: 1]Section 11A of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) was the equivalent of section 14 of the Act.

[note: 2]Mitigation plea at [33] to [60].

[note: 3]Jimmy Ong at [4(i)], [4(j)], [6] and [13].

[note: 4]Jimmy Ong at [4(d)].

[note: 5]Jimmy Ong at [4(c)].

[note: 6]Jimmy Ong at [4(f)] and [4(g)].

[note: 7]Jimmy Ong at [4(e)].

[note: 8]Jimmy Ong at [4(c)].

[note: 9]Jimmy Ong at [13].

[note: 10]Jimmy Ong at [5], [6] and [15].

[note: 11]Jimmy Ong at [4(h)].

"},{"tags":["Criminal Law – Securities and Futures Act – Act likely to operate as a fraud","Criminal Procedure and Sentencing – Sentencing – Custodial Sentence"],"date":"2024-09-23","court":"District Court","case-number":"District Arrest Case No 921152 of 2020 & Anor, Magistrate's Appeal No 9126/2024/01","title":"Public Prosecutor v Sun Weiyeh","citation":"[2024] SGDC 242","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32238-SSP.xml","counsel":["Mr Peter Koy, Mr Eric Hu, Mr Darren Sim (Attorney-General's Chambers) for the Public Prosecutor","Mr Jason Chan SC, Mr Aaron Lee, Ms Wong Pei Ting and Ms Low Zhe Ning (Allen & Gledhill LLP) for the accused"],"timestamp":"2024-10-04T16:00:00Z[GMT]","coram":"Luke Tan","html":"Public Prosecutor v Sun Weiyeh

Public Prosecutor v Sun Weiyeh
[2024] SGDC 242

Case Number:District Arrest Case No 921152 of 2020 & Anor, Magistrate's Appeal No 9126/2024/01
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Luke Tan
Counsel Name(s): Mr Peter Koy, Mr Eric Hu, Mr Darren Sim (Attorney-General's Chambers) for the Public Prosecutor; Mr Jason Chan SC, Mr Aaron Lee, Ms Wong Pei Ting and Ms Low Zhe Ning (Allen & Gledhill LLP) for the accused
Parties: Public Prosecutor — Sun Weiyeh

Criminal Law – Securities and Futures Act – Act likely to operate as a fraud

Criminal Procedure and Sentencing – Sentencing – Custodial Sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9126/2024/01.]

23 September 2024

District Judge Luke Tan:

Introduction

1       The accused, Sun Weiyeh, is a 43-year-old male Singaporean. He claimed trial to two charges under s 201(b) of the Securities and Futures Act (Cap 289, 2006 Rev Ed) (“SFA”), for engaging in acts which were likely to operate as a fraud upon the investors of a fund of which he was a portfolio manager.

2       The acts in question pertained to the accused selling two bonds from one fund (“selling fund”) to another fund in which he had a majority shareholding (“buying fund”). The Prosecution’s case was that he carried out these acts despite knowing of earlier bids for these bonds at higher prices, and thus benefitted from this transaction at the expense of investors of the selling fund.

3       For the purposes of the hearing, and with the consent of the Defence, the Prosecution proceeded on a joinder of the two charges. The trial took place over the course of 28 days. Evidence was led from eight witnesses from the Prosecution, and the accused was the sole witness for the Defence.

4       At the end of the trial, both the Prosecution and the Defence tendered lengthy submissions and replies and also put in several bundles of authorities. These consisted of:

(a)     For the Prosecution:

(i)       Prosecution’s Closing Submissions (“PCS”);

(ii)       Prosecution’s Reply Submissions (“PRS”)

(iii)       Prosecution’s Bundle Of Authorities (Volume 1) (“PBOA V1”); and

(iv)       Prosecution’s Bundle Of Authorities (Volume 2) (“PBOA V2”); and

(v)       Prosecution’s Bundle Of Authorities for Reply Submissions (“PBOA RS”).

(b)     For the Defence:

(i)       Defence’s Closing Submissions (“DCS”);

(ii)       Defence’s Reply Closing Submissions (“DRCS”)

(iii)       Defence’s Bundle Of Authorities to Defence’s Closing Submissions (Volume 1) (“DBOA CS V1”);

(iv)       Defence’s Bundle Of Authorities to Defence’s Closing Submissions (Volume 2) (“DBOA CS V2”); and

(v)       Defence’s Supplementary Bundle Of Authorities to Defence’s Reply Closing Submissions (“DSBOA”);

5       After going through the extensive notes of evidence (“NE”), the exhibits, the submissions of parties and the authorities cited, I was satisfied that there was sufficient evidence to establish the charges against the accused beyond a reasonable doubt, and I convicted him accordingly.

6       Thereafter, I considered submissions made by parties on sentence including, in particular, submissions on the gains made by the accused in connection with the commission of the offences. For sentencing, parties again tendered various submissions, replies and bundles of authorities consisting of:

(a)     For the Prosecution:

(i)       Prosecution’s Skeletal Sentencing Submissions (“PSSS”);

(ii)       Prosecution’s Reply Submissions (“PRSS”)

(iii)       Prosecution’s Further Reply Submissions (“PFRS”);

(iv)       Prosecution’s Bundle Of Authorities (“PBOAS”); and

(v)       Prosecution’s Reply Bundle of Authorities (“PRBOAS”)

(b)     For the Defence:

(i)       Defence’s Sentencing Submissions (“DSS”);

(ii)       Defence’s Reply Sentencing Submissions (“DRSS”)

(iii)       Defence’s Further Reply Sentencing Submissions (“DFRSS”)

(iv)       Defence’s Second Supplementary Bundle Of Authorities to Defence’s Sentencing Submissions (“DSSBOA”);

(v)       Defence’s Third Supplementary Bundle Of Authorities to Defence’s Reply Sentencing Submissions (“DTSBOA”); and

(vi)       Defence’s Fourth Supplementary Bundle Of Authorities to Defence’s Reply Sentencing Submissions (“DFSBOA”).

7       After considering the submissions and relevant authorities, I imposed an aggregate sentence of 6 months’ imprisonment on the accused, consisting of two concurrent sentences of 6 months’ imprisonment per charge.

8       The accused, being dissatisfied, has filed appeals against his conviction and sentence. He is currently on bail. I now give the reasons for my decision in these Grounds of Decision (“GD”). For ease of reference, I have set out in some detail the main points made by the Prosecution and the Defence in their various submissions referred to at [4] and [6], which explains the length of these GD.

Charges

9       The accused faced two similar charges. The charges were amended at the end of the Prosecution’s case pursuant to an application by the Prosecution, and before the defence was called. In line with section 230(1)(g) of the Criminal Procedure Code 2010 (“CPC”), and bearing in mind the guidance of the High Court in Goh Chin Soon v Public Prosecutor [2020] SGHC 162 (“Goh Chin Soon”), which set out at [69] the requirements that must be met before a trial court can exercise its discretion to amend an existing charge, I agreed that the charges should be amended in the manner proposed by the Prosecution. In making my assessment to amend the charges, I was of the view that the proposed amendment would not prejudice the accused.

10     Further, upon making the amendment, I followed the procedures set out in s 128 - 130 of the CPC (pertaining to the amendment of charges) where, inter alia, the plea was recorded again, time was given to the Defence to consider the amendment, and the opportunity for recall of witnesses was also given to parties. The accused then continued to the charges as amended, and neither party applied to recall any witness.

11     The two amended charges read:

First Amended Charge

You…. are charged that you, on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, MIEHOL 180206 Mie Holdings Corp 2013/2018 (“MIE18”), did engage in an act which was likely to operate as a fraud upon the investors of the Arion Asia Credit Fund SPC – AACF High Yield Basis Fund SP managed by One Asia Investment Partners Pte Ltd (“OAIP”), to wit, by selling 2.5 million notional value of MIE18 at US$25.375 when you knew that there was a bid for the said block of MIE18 bonds at or around US$33, and thereafter buying the said block of MIE18 bonds into the Arion Asia Credit Fund SPC – AACF Investment Grade Bond Fund II SP managed by OAIP at a price of US$25.5, through Pareto Securities Pte Ltd, and you have thereby committed an offence under Section 201(b) of the Securities and Futures Act (Chapter 289, 2006 Revised Edition) punishable under Section 204(1) of the said Act.

Second Amended Charge

You…are charged that you, on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, MIEHOL 190425 Mie Holdings Corp 2014/2019 (“MIE19”), did engage in an act which was likely to operate as a fraud upon the investors of the Arion Asia Credit Fund SPC – AACF High Yield Basis Fund SP managed by One Asia Investment Partners Pte Ltd (“OAIP”), to wit, by selling 1.5 million notional value of MIE19 at US$21.875 when you knew that there was a bid for the said block of MIE19 bonds at or around US$32, and thereafter buying the said block of MIE19 bonds into the Arion Asia Credit Fund SPC – AACF Investment Grade Bond Fund II SP managed by OAIP at a price of US$22, through Pareto Securities Pte Ltd, and you have thereby committed an offence under Section 201(b) of the Securities and Futures Act (Chapter 289, 2006 Revised Edition) punishable under Section 204(1) of the said Act.

The general undisputed facts and sequence of events

12     At the commencement of the hearing, parties put up a Statement of Agreed Facts (“SOAF”) setting out the undisputed matters. In the course of the trial, it was also clear that many of the events that preceded or were connected with the actions of the accused on 19 January 2016, were generally also not disputed, although the inferences to be drawn may not necessarily be agreed by parties. The main issues in dispute in this case pertained to the interpretation of the elements of s 201 of the SFA, and the inferences to be drawn from the evidence adduced, viz, the exhibits and the testimonies of the witnesses called, including the Prosecution’s expert witnesses, the witnesses from various trading counterparties, the accused’s colleagues, a representative of the main investor from the selling fund, and the accused himself.

13     I have set out the main undisputed matters below, much of which was extracted from the submissions of parties.

Main Parties and Agreements

14     The main parties were:

(a)     One Asia Investment Partners Pte Ltd ("OAIP"). At the material time in January 2016, the accused was a director, shareholder (with 83.6% of the shares), and the Chief Investment Officer (“CIO”) of OAIP. The other shareholders of OAIP included Mr Kelvin Goh (“Mr Goh”), a director and the Chief Executive Officer (“CEO”), and Mr Brayan Lai (“Mr Lai”), a portfolio manager, fixed income of OAIP. Both the accused and Mr Lai were also OAIP’s authorised traders. As the CIO, the accused had oversight and authority over all the portfolio managers of OAIP.[note: 1]

(b)     Arion Asia Credit Fund ("AACF"), Pursuant to an investment management agreement (“IMA”) dated 20 October 2014 (D42), OAIP managed a fund, AACF, which was incorporated and subsequently re-registered into a Segregated Portfolio Company ("SPC") in the Cayman Islands. Under clause 2.1 of the IMA, OAIP was to provide investment management services and to undertake management duties in respect of each of the segregated portfolios, which essentially meant that OAIP manages the sub-funds of AACF, including its assets. The management of each sub-fund was carried out by OAIP’s employees, essentially portfolio managers like the accused.[note: 2]

(i)       At the material time, AACF was governed by a Private Placement Memorandum ("PPM") dated 20 October 2014 and two Supplementary PPMs dated 26 June 2015 and 28 October 2015. The accused was one of two directors of AACF (together with Mr Lai). Holders of shares in AACF refer to the investors who have subscribed for shares in any of the sub-funds.[note: 3]

(ii)       As an SPC structure, AACF had 10 sub-funds, designated as SP1 to SP10. These included the following:

SIN

AACF Segregated Portfolios

SP Designation (internal to OAIP)

1

AACF High Yield Basis Fund (also referred to as "HYBF")

SP1

2

AACF Investment Grade Bond Fund Il SP (also referred to as "IGBF')

SP5



(iii)       The accused was a co-portfolio manager of SP1. At the material time in January 2016, Mr Lai was the other co-portfolio manager of SP1. At that time, a company, Stafford Capital Limited (“SCL”) had a majority ownership of about 86.85% in SP1, and OAIP had a shareholding of 2.49%. The accused had no ownership in SP1.

(iv)       Both the accused and Mr Lai, being OAIP’s authorised traders, could conduct trades with external parties for SP1 and SP5.

Witnesses at trial

15     The Prosecution witnesses called eight witnesses, while the accused was the only Defence witness. The Prosecution witnesses were as follows:

(a)     PW1 Morgan Stanley Lily Ng (“Ms Ng”), the legal manager of SCL, which was the majority investor in SP1. In essence, she testified on events connected to SCL’s investment in SP1, and the redemption of this investment.

(b)     PW2 Goh Toh Kiat Kelvin (“Mr Goh”), CEO and a director and shareholder of OAIP. Mr Goh was SCL’s primary relationship manager and gave evidence on the circumstances leading to the investment redemption by SCL.

(c)     PW3 Mr Brayan Lai (“Mr Lai”) was a co-founder of OAIP, co-portfolio manager and authorised trader of SP1, and a director of AACF. Mr Lai gave evidence of his role in the liquidation of SP1’s investments.

(d)     PW4 Ms Goyal Megha (“Ms Goyal”) was a salesperson from Morgan Stanley. Ms Goyal gave evidence on the messages that she exchanged with the accused on the day in question, 19 January 2016.

(e)     PW5 Mr Reshad Mohd Sabed (“Mr Reshad”) was a trader from Pareto, the intermediary broker that conducted the passthrough trades. Mr Reshad gave evidence about his involvement with the accused in the passthrough trades.

(f)     PW6 Ms Low Guan Yi (“Ms Low”), the head of Asia fixed income at M&G Investments Singapore, a global asset management firm that is part of Prudential plc. She gave evidence as an expert witness for the Prosecution.

(g)     PW8 Mr Jamie Tadelis (“Mr Tadelis”), the Head of Business Development for SC Lowy Financial (HK) Ltd (“SC Lowy”). Mr Jamie Tadelis gave evidence on Bloomberg chat conversations involving himself and the accused on 19 January 2016 concerning the MIE bonds.

(h)     PW7 Mr Cheong Wei Ming (“Mr Cheong”), a fund manager at Eastspring Investments (Singapore) Limited, a global asset management firm that is part of Prudential plc. He was the second expert witness for the Prosecution.

16     As for the Defence, only the accused gave evidence pertaining to the charges. The Defence declined to call any expert witnesses, which effectively meant that they chose not to put in the reports prepared by two previously identified expert witnesses, although the Defence did use these same reports to question and challenge the evidence of the Prosecution’s expert witnesses.

Key events

17     The Defence set out in its DCS certain key matters in the chronology of events. In so far as these do not appear to have been disputed by the Prosecution, I have reproduced parts of the Defence’s chronology on the more material matters, with relevant edits for purposes of brevity. I have also included below relevant extracts from some of the trial exhibits.

Events from Oct 2014 to 18 Dec 2015: SCL’s investment/redemption

18     SCL was brought in by Mr Goh as OAIP’s first external investor in 2014. On 14 October 2014, SCL signed the Subscription Agreement (P20) and invested in SP1 with a subscription amount of US$10 million, becoming the principal and seed (i.e., first) investor in SP1. The subscription was accepted by OAIP as a manager of the Fund with the contracting parties being the Fund and the subscriber.

19     From August 2015, SP1 did not perform well. At a subsequent investor update meeting with SCL on 23 November 2015, while SCL was encouraged not to redeem its investment at the meeting, SCL nevertheless decided to do so.

20     On 18 December 2015, Ms Tan Choo Hui ("Ms Tan”) from SCL emailed Mr Goh and stated that SCL would arrange for the redemption request form to be signed, upon receipt of the form from Mr Goh. At that time, SCL was the largest investor in SP1. Owing to the size of SCL’s investment in SP1, a full redemption by SCL meant that substantially all US$13.6 million worth of positions held by SP1 (including the MIE bonds) would have to be sold in order to generate sufficient proceeds to meet SCL’s redemption request. With the majority of SP1’s assets sold to fulfil SCL’s redemption request, SP1 would no longer be viable and would have to be liquidated completely.

Events from Dec 2015 to 15 Jan 2016: Responses to SCL’s request

21     In the days that followed, the accused, Mr Lai, and Mr Goh discussed alternative options to handle SCL’s intention to redeem its investment.

22     Mr Goh stated that SCL had wanted a full redemption by the end of 2015, but that “only after much explanation” SCL had agreed to a redemption by no later than the end of January 2016. According to Mr Goh, there was “no mention of redemption price or expectation”, which led Mr Goh to believe that SCL “really just wants to exit and get his money out”. Mr Goh suggested an alternative option to the two options raised by Mr Lai, i.e., to “inject own money to keep the fund going and we work to keep the other existing investors in viable”.[note: 4]

23     On 28 December 2015, Mr Goh sent Ms Tan a copy of the redemption form and asked her to complete it and send it back for processing with the fund administrator. That same day, Ms Tan sent a scanned copy of the signed redemption form to Mr Goh and informed him that the original redemption form, together with a board resolution from SCL in respect of the redemption, would be couriered to OAIP by 31 December 2015. SCL’s original redemption form eventually sent to OAIP was dated 4 January 2016.[note: 5]

24     Pursuant to clause 9.3.2 of the PPM, the next Dealing Day for SCL’s shares to be redeemed was 1 February 2016 (the first business day of February 2016), and the redemption would be at an NAV of 29 January 2016 (the last business day of January 2016 preceding the Dealing Day of 1 February 2016).

25     Some of SP1’s smaller positions (relative to the SP1’s portfolio) were sold on 4 January 2016 (700,000 Jingrui Holdings bonds) and 15 January 2016 (1 million Indika bonds).

26     At the material time in January 2016, there was evidence that the financial outlook was dire. The Defence pointed out that there was no dispute by the Prosecution’s experts that:

(a)     Oil prices were at a 12-year low, with particular concerns about the performance of the Chinese market, and that the market was “very tenuous”, “a lot of oil and gas bonds have traded down”, “prices were moving around consistently”, and it was overall a “difficult time in the markets”.[note: 6]

(b)     “…19 January 2016 would likely have been a very difficult opening for traders... If [they] were a trader at that time, [they] would have been very cautious to bid equities or corporate bonds, especially for those related to oil industries during that time.”[note: 7]

(c)     Given the downgrade in its rating, the MIE bonds “…would have much more price volatility with regard to the trading price of those issued securities”.[note: 8]

27     Around the first two weeks of January 2016, on the accused’s instructions, Mr Lai was monitoring the market and checking for prices of bonds (including the MIE bonds) held by SP1 which may have to be sold, so as to understand where the market was heading. During this time, the prices of the MIE bonds fluctuated daily.[note: 9]

28     On 18 January 2016 (Monday), the accused reached out to his contact at Goldman Sachs, and asked Goldman Sachs for indicative bid prices of the MIE bonds. Goldman Sachs responded with indicative bids of $34 on 1 million of MIE18 and $31 on 1 million of MIE19. the accused remarked that these indicative bids were a “big move” from the previous week, and was told by Goldman Sachs that “RM selling has much bigger size so bonds has been trading down. 18s is more heavy than 19s. as a few RM were worrying about coupon payment for 18s”.[note: 10]

Events on 18 Jan 2016: The passthrough plan

29     On Monday, 18 January 2016, the injection of funds into SP5 was done on an “urgent basis”.Various parties, including Mr Goh, Mr Lai, the accused and OAIP’s compliance personnel, were all involved in various actions as follows:

(a)     The AACF board resolution was signed by Mr Lai and the accused on 18 January 2016.[note: 11] The resolution provided that “[OAIP], acting in its capacity as the investment manager of [AACF] and [SP5] had determined that it was in the best interests of [OAIP] and [SP5] to waive the Dealing Deadline and Dealing Day. The subscription application would be accepted and processed ... for the Dealing Date of 4 January 2016”.

(b)     At 6:23 pm on 18 January 2016, Mr Lai informed the accused that “SP5 [was] immediately usable”.[note: 12] Following this, the accused became the majority shareholder of SP5, holding 94.1% of SP5, with OAIP holding the remaining 5.9%. Mr Lai then took steps to ensure that trading lines with various traders, including Pareto, were established for SP5 to trade.

(c)     On 18 January 2016, the accused injected US$3 million into SP5.[note: 13]

Events on 19 March 2016: The passthrough is carried out

30     At 1:32 a.m. on 19 January 2016, the accused created a WhatsApp chat group titled “HYBF [SP1] redemption” with Mr Lai and Mr Goh.[note: 14]

(a)     The first messages were from the accused, asking “Kg [i.e., Mr Goh] have we received the redemption notice from Dato [i.e., SCL]” and “Brayan [i.e., Mr Lai], have you received the redemption notice from Ken [i.e., Mr Ken Tanizar]”.

(b)     The accused highlighted to Mr Goh and Mr Lai the “[n]eed to stay on top of things” because “liquidity is thinning out”.[note: 15]

(c)     Mr Goh confirmed that OAIP had received SCL’s redemption notice and that it had been dated 4 January 2016.[note: 16]

31     At 10:00:34 a.m., the accused sent a mass blast to at least 11 counterparties including Morgan Stanley via the Bloomberg chat terminal to ask for pricing for the whole block of MIE bonds plus INDYIJ23 bonds issued by Indika held in SP1’s portfolio “to get them to show [him] a bid”.[note: 17] Bids were received from 4 counterparties: Haitong, Morgan Stanley, BNP Paribas (“BNP”), and SC Lowy for one, two or three of the bonds.

(a)     Haitong’s bids (based on Mr Ray Xie’s chat with the accused (P6) adapted/extracted from Annex A of DCS were as follows:

S/N

Time

Party

Event

Ref

1

10:00:23

The accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5,

P6, P7,

P8, P9,

P10,

P11,

P14,

P52

2

10:00:30

Ray Xie

(Haitong)

hey bro

P6

3

10:00:34

Ray Xie

(Haitong)

sec on the mie

P6

4

10:00:44

The accused

(mass blast)

sorry, i mean bids

P4, P5,

P6, P7,

P8, P9,

P10,

P11,

P14,

P52

5

10:02:50

Ray Xie

(Haitong)

oh

P6

6

10:02:55

Ray Xie

(Haitong)

sec sec

P6

7

10:06:26

Ray Xie

(Haitong)

32 bid on MIEHOL 18 1MM

29 bid on MIEHOL 19 1MM

P6

8

10:06:52

The accused

(with Haitong)

can you quote me a bid for the block?

P6

9

10:07:00

The accused

(with Haitong)

not in pieces

P6

10

10:08:50

Ray Xie

(Haitong)

sorry will be 25/MIE 18 and 20/MIE 19 for the block for now

P6

11

10:27:17

The accused

(with Haitong)

any bid for indika 23s 2mm?

P6

12

10:27:27

Ray Xie

(Haitong)

dont trade that here bro sorry

P6



 

(b)     Morgan Stanley’s bids (based on Ms Goyal’s chat with the accused (P4 (main chat) and P64 (side chat)) adapted/extracted from Annex A of DCS [Note: Bids request and bids quote are indicated in bold]

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7,

P8, P9, P10,

P11, P14, P52

2

10:00:30

Megha Goyal

(MS)

sec

P4

3

10:00:44

the accused

(mass blast)

sorry, i mean bids

P4, P5, P6, P7, P8, P9,

P10,P11,

P14,P52

4

10:01:24

Megha Goyal

(MS)

Miehol 18 - 33/ miehol 19 - 32/

P4

5

10:01:27

Megha Goyal

(MS)

pass on INDYIJ

P4

6

10:02:11

Megha Goyal

(MS side chat)

hey Wei..

P64

7

10:02:11

the accused

(with Morgan Stanley side chat)

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P64

8

10:02:18

Megha Goyal

(MS side chat)

probably easier here given the noise on the main chat

P64

9

10:02:45

the accused

(with Morgan Stanley side chat)

Ok

P64

10

10:08:07

Megha Goyal

(MS side chat)

assume nothing ?

P64

11

10:08:53

the accused

(with Morgan Stanley side chat)

need a bid for blkock [ sic ]

P64

12

10:08:56

the accused

(with Morgan Stanley side chat)

your best bid

P64

13

10:09:02

the accused

(with Morgan Stanley side chat)

pls use the main chjat [ sic ]

P64

14

10:09:11

Megha Goyal

(MS)

ive put the bids there already

P64

15

10:09:34

Megha Goyal

(MS)

reposting - Miehol 18 - 33/ miehol 19 - 32/ INDYIJ - PASS

P4

16

10:15:21

the accused

(with MS)

for whole block?

P4

17

10:15:29

the accused

(with MS)

miehol 18s 2.5mm, miehol 19s 1.5mm ?

P4

18

10:15:42

Megha Goyal

(MS)

yes

P4

19

10:23:42

Megha Goyal

(MS)

Wei please refresh before trading

P4

20

10:45:02

the accused

(with Morgan Stanley side chat)

Wei.. presume nothing ont he MIEHOLs ?

P64

21

10:47:53

the accused

(with Morgan Stanley side chat)

nope. tks

P64

22

10:48:01

the accused

(with Morgan Stanley side chat)

all or nothing

P64

23

10:48:11

Megha Goyal

(MS)

ahh i see, so INDYIJ

P64



(c)     BNP’s bid (based on Ms Pamela Tsang’s chat with the accused (P5 (main chat)) adapted/extracted from Annex A of DCS.

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast 2 )

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

2

10:00:31

Pamela Tsang

(BNP)

hi mom pls.

P5

3

10:00:44

the accused

(mass blast)

sorry, i mean bids

P4, P5, P6, P7, P8, P9,

P10,P11,

P14,P52

4

10:00:55

Pamela Tsang

(BNP)

oh !

P5

5

10:00:57

Pamela Tsang

(BNP)

sec

P5

6

10:11:48

Pamela Tsang

(BNP)

Weiyeh- bear with us- coming right back. just got a few things coming in

P5

7

10:12:18

the accused

(with BNP side chat)

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P5

8

10:12:22

the accused

(with BNP side chat)

PAMELA TSANG, BNP PARIBAS received an invite from WEIYEH SUN, ONE ASIA INVESTMENT

P5

9

10:12:22

the accused

(with BNP side chat)

pam

P5

10

10:12:26

Pamela Tsang

(BNP side chat)

hey

P5

11

10:12:32

the accused

(with BNP side chat)

can you give me a bid for the whole block?

P5

12

10:12:38

Pamela Tsang

(BNP side chat)

which one do u hv a block

P5

13

10:12:49

the accused

(with BNP side chat)

need to clear

P5

14

10:12:58

Pamela Tsang

(BNP side chat)

which name do u own the blcok [sic] ? mie 18, 19 or indika

P5

15

10:13:03

the accused

(with BNP side chat)

miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s

2mm

P5

16

10:13:11

Pamela Tsang

(BNP side chat)

ah u mean thts the entire position already

P5

17

10:13:15

the accused

(with BNP side chat)

all three. need a bid yes

P5

18

10:13:19

Pamela Tsang

(BNP side chat)

k. seccy

P5

19

10:22:17

Pamela Tsang

(BNP side chat)

Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block

otherwise, we can bid better for say 500k each and we need an order to work the balance.

P5



(d)     SC Lowy’s bid (based on Ms Pamela Tsang’s chat with the accused (P5 (main chat) adapted/extracted from Annex A of DCS

S/N

Time

Party

Event

Ref

1

10:00:23

the accused

(mass blast2)

hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

2

10:00:44

the accused

(mass blast2)

sorry, i mean bids

P4, P5, P6, P7, P8, P9, P10, P11, P14, P52

3

10:01:27

 

Jamie

Tadelis

4

10:16:43

the accused

WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

P52

5

10:16:46

(with SCLOWY

side chat)

JAMIE TADELIS, SC LOWY FINANCIAL (H received an invite from WEIYEH SUN, ONE ASIA INVESTMENT

P52

6

10:16:46

the accused

(with SC LOWY

side chat)

Jamie

P13

7

10:17:11

the accused

(with SC LOWY

side chat)

i need a firm bid for the whole block

P13

8

10:16:46

the accused

(with SC LOWY

side chat)

can you help me with something, not piecemeal

P13

9

10:17:35

Lauri Purhonen

(SC LOWY)

Indyij23 no bid atm

P52

10

10:24:33

Jamie Tadelis

(SC LOWY side

chat)

ah…I see. Unfortunately, we don’t have a bid for the block. The only bid we have had in these particular names of late has been in the MIE 19s. Seeing little to no interest in the others at the moment.

P13

11

10:28:39

the accused

(with SC LOWY side chat)

indika 23s

P13

12

10:28:50

the accused

(with SC LOWY side chat)

any bid for 2mm?

P13

13

10:28:54

the accused

(with SC LOWY

side chat)

need a firm one

P13

14

10:29:38

Jamie Tadelis

(SC LOWY side chat)

We don’t have a bid for INDYIJ 23s….you were our last trade in that when we lifted you in 1m last week.

No buyers at the moment.

P13



(e)     At 10:18 a.m., Mr Reshad messaged the accused. In two separate two chats, a main chat and a one-on-one chat, the accused acted in the capacity of both SP1 (selling fund) and SP5 (buying fund) respectively to deal with Mr Reshad, the intermediary via the passthrough.

A) Accused acting for SP1 (selling by SP1):

01/18/2016 09:18:58 PM EST (01/19/2016 10:18:58 SGT) RSABED3 (PARETO SECURITIES PT): Ready when you guys are

01/18/2016 09:31:17 PM EST (01/19/2016 10:31:17 SGT) WY.SUN (ONE ASIA INVESTMENT): hi miehol 18s 2.5mm, miehol 19s 1.5mm, any bids for the block

01/18/2016 09:31:27 PM EST (01/19/2016 10:31:27 SGT) RSABED3 (PARETO SECURITIES PT): Hi, where can you offer these bonds?

01/18/2016 09:35:04 PM EST (01/19/2016 10:35:04 SGT) WY.SUN (ONE ASIA INVESTMENT): any bids?

01/18/2016 09:37:27 PM EST (01/19/2016 10:37:27 SGT) RSABED3 (PARETO SECURITIES PT): I can buy from you @ 24.875 for the 18s and 21.875 for the 19s - FIRM

01/18/2016 09:40:09 PM EST (01/19/2016 10:40:09 SGT) WY.SUN (ONE ASIA INVESTMENT): can you improve your 18s pls?

01/18/2016 09:40:53 PM EST (01/19/2016 10:40:53 SGT) RSABED3 (PARETO SECURITIES PT): I can improve to 25.375 for the 18s - firm

01/18/2016 09:41:14 PM EST (01/19/2016 10:41:14 SGT) WY.SUN (ONE ASIA INVESTMENT): done

01/18/2016 09:42:15 PM EST (01/19/2016 10:42:15 SGT) WY.SUN (ONE ASIA INVESTMENT): AACF HYBF sells 2.5mm miehol 18s at 25.375 and 1.5mm miehol 19s at 21.875



B) Accused acting for SP1 (buying by SP5):

01/18/2016 09:19:20 PM EST (01/19/2016 10:19:20 SGT) RSABED3 (PARETO SECURITIES PT): hi

01/18/2016 09:19:21 PM EST (01/19/2016 10:19:21 SGT) WY.SUN (ONE ASIA INVESTMENT): wait

01/18/2016 09:30:47 PM EST (01/19/2016 10:30:47 SGT) WY.SUN (ONE ASIA INVESTMENT): hi I can pay for miehol 18s 2.5mm @ 25, miehol 19s 1.5mm @ 22, any offers?

01/18/2016 09:31:38 PM EST (01/19/2016 10:31:38 SGT) WY.SUN (ONE ASIA INVESTMENT): this is for IGBF2

01/18/2016 09:31:51 PM EST (01/19/2016 10:31:51 SGT) RSABED3 (PARETO SECURITIES PT): understood

01/18/2016 09:35:39 PM EST (01/19/2016 10:35:39 SGT) RSABED3 (PARETO SECURITIES PT): hi, where you bid for these bonds?

01/18/2016 09:36:13 PM EST (01/19/2016 10:36:13 SGT) WY.SUN (ONE ASIA INVESTMENT): I can pay 25 for the 18s and 22 for the 19s

01/18/2016 09:39:55 PM EST (01/19/2016 10:39:55 SGT) WY.SUN (ONE ASIA INVESTMENT): can improve to 25.5 for the 18s

01/18/2016 09:43:50 PM EST (01/19/2016 10:43:50 SGT) RSABED3 (PARETO SECURITIES PT): okie, I sell you 2.5MN miehol 18s at 25.5 and 1.5MN miehol19s at 22. Done?

01/18/2016 09:44:57 PM EST (01/19/2016 10:44:57 SGT) WY.SUN (ONE ASIA INVESTMENT): done. AACF IGBF 2 will buy the above

01/18/2016 09:45:11 PM EST (01/19/2016 10:45:11 SGT) RSABED3 (PARETO SECURITIES PT): understood.



The above transactions were summarised in a table (P72). I have reproduced the relevant parts with highlights below.

\"\"

(f)     As a result of the passthrough:

(i)       At 10:41:14 a.m., SP1 sold 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 to Pareto at a price of US$25.375 and US$21.875.

(ii)       At 10:44:57 a.m., SP5 bought 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 from Pareto at a price of US$25.50 and US$22. [note: 18]

Events following the passthrough

32     Following the passthrough, Mr Lai was involved in the confirmation and settlement of the passthrough. Mr Patrick Koh, an OAIP analyst, was involved in the settlement process for the passthrough too.

33     That afternoon, Mr Goh updated Mr Lai and the accused that SCL was seeking an update on the redemption of the positions of the fund.[note: 19] The accused drafted responses to be sent by Mr Goh to SCL and Mr Ken Tanizar.

34     In an email on 19 January 2016 at 4:53 pm, on the accused’s instructions, Mr Goh informed Ms Tan that “given the extreme volatility in the current markets, as evidenced by the sharp drop in global equities and oil prices, many bonds have traded lower” and “[a]s before, we highly recommend that you stay in the fund”.[note: 20]

35     Despite this, SCL pushed ahead with the redemption. The remainder of SP1’s assets were sold off between 20 and 25 January 2016, so as to fulfil SCL’s redemption and effect the liquidation of SP1.[note: 21] These included another passthrough trade in relation to a block of Indika bonds sold from SP1 to SP5 through Pareto on 22 January 2016.

36     Between 25 January 2016, Mr Lai, Mr Goh and the accused discussed a request made by SCL for the accounts of SP1. The accused said he had “np” (no problem) providing these, and instructed Mr Lai to prepare the quarterly accounts of SP1 for SCL. He also reminded Mr Lai to “square off all remaining positions in time for redemption this month end”.

37     On 28 January 2016, Mr Lai commented that there was “[n]othing out of the ordinary” on the NAV statements, which were “by the book and system generated”. The accused gave his approval for the NAV statements to be provided to SCL. On 3 February 2016, Mr Lai approved the NAV pack for SP1 for January 2016.

38     SCL’s redemption was confirmed on 5 February 2016 with the redemption amount of US$6,490,977.60, processed on the Dealing Day of 1 February 2016. On around 12 February 2016, SCL sought further information from OAIP on the sale of SP1’s assets. Mr Goh and Mr Lai worked to prepare a non-disclosure agreement (“NDA”) for SCL to be signed before providing such information and liaised with SCL on this. Eventually, SCL decided not to enter into the NDA with OAIP.

The Prosecution’s case

Outline of Prosecution’s case

39     The Prosecution’s case against the accused under s 201(b) of the SFA was that he engaged in acts on the morning of 19 January 2016, which were likely to operate as a fraud upon the investors of a fund (SP1) which he was a portfolio manager of, by selling two bonds of SP1 at lower prices to another fund (SP5) which the accused had overwhelming majority shareholding in, despite knowing of earlier bids by Morgan Stanley for these bonds at higher prices. By doing so, the accused knew he would cause losses to investors of SP1 and benefit to himself.

40     The Prosecution’s case, based on the evidence adduced at trial, and set out in its various submissions, is outlined below:

(a)     The accused as a portfolio manager of the fund SP1 carried the responsibility of managing the investments of SP1. In that capacity, he was entrusted with monies by SP1 investors and therefore had the duty to sell the MIE bonds for SP1 at the highest available prices. Importantly, the evidence shows that the accused did not dispute that he owed a duty to sell the MIE18 and MIE19 bonds at the best available prices. Further, while it was not necessary for the Prosecution to prove that the accused had a fiduciary duty in order to make out an offence under s 201(b), the Prosecution took the position that the circumstances of the case suggest that such a duty was owed.

(b)     In the present case, on 19 January 2016, even before Haitong gave its bids for the MIE bonds at 10:08:50 a.m., the accused had already decided to sell the MIE bonds from SP1 to SP5.

(c)     When the accused saw the Morgan Stanley bids that Ms Goyal reposted at 10.09 a.m., he knew they were executable.

(d)     The accused did not sell the MIE bonds to Ms Goyal, or the MIE19 bonds to SC Lowy, because by that time he did not intend to sell them to the market.

(e)     Even though Ms Goyal sent a message in the group chat at 10.23 a.m. asking the accused to refresh before trading, there was no reason for the accused to have gone back to the group chat with Ms Goyal and therefore he did not see this message because prior to that he did not intend to sell the MIE bonds to her.

(f)     Even if the accused had seen Ms Goyal’s message of 10.23 a.m., if it was true that he genuinely wanted to sell the MIE bonds at the highest available prices, he ought to have asked Ms Goyal if her earlier bid prices were still valid, given that those prices were the highest amongst the bidders and he was still purportedly doing price discovery.

(g)     On 19 January 2016, when the accused received executable bids from counterparties (e.g., from Morgan Stanley, SC Lowy), he should have sold the MIE bonds to those bids because they were higher than Haitong’s bids, or he should have used those prices as market context for the passthrough trades.

(h)     The accused’s defence that he sold the MIE bonds from SP1 to SP5 at fair prices cannot be accepted because he did not do genuine price discovery and had no basis to expect Mr Reshad of Pareto to do price discovery.

(i)     If the accused was carrying out genuine price discovery, he would have checked back with Morgan Stanley before he sold the MIE bonds to SP5 through Pareto. For BNP’s bids, the accused’s claim that he did not see BNP’s bids was inconsistent with his claim he was doing price discovery. When the accused asked BNP’s Ms Pamela Tsang for bids, she responded and acknowledged. She did not state that BNP was not bidding – instead, the accused moved on. He ought to have checked back with BNP if his claim of doing genuine price discovery was true; and

(j)     In connection with the sale of the MIE bonds, the accused’s acts which likely operated as a fraud upon SP1 investors comprised the

(i)       intentional act of selling the MIE bonds from SP1 and buying them for SP5 at the lower prices pegged to Haitong’s bid through Pareto; and

(ii)       doing so with the knowledge of the earlier higher bids when he carried out the trades.

(k)     In selling the MIE bonds from SP1 and buying them into SP5 despite knowing of earlier higher bids, the accused breached his duty to sell the MIE bonds at the highest available prices. He intentionally caused a loss to the investors of SP1, as well as benefitted himself as the majority shareholder of SP5.

41     The Prosecution also made clear that:

(a)     Its position was not that the passthrough itself was objectionable, but only the price that the passthrough was actually finally transacted at. In itself, a passthrough trade was not objectionable, provided it was done at a fair price, as the accused’s duty was to get what was the highest available price for him to use in the passthrough trades.[note: 22]

(b)     The accused has a duty to sell the MIE bonds at the highest available prices, which was something the accused agreed with in cross-examination. This means that he had to seek the highest available prices to sell the bonds at, in the light of the prices that he knew of.

(c)     Further, as the charges were framed under s 201(b) of the SFA, they deal with the accused’s acts which were directly “in connection with” the sale of the MIE bonds. These acts were not limited by s 201(b) only to the act done only at the time of the sale transaction of securities, as the terms (“in connection with”) carry a broad meaning. Therefore, the higher bid prices that the accused knew of, for example, the earlier Morgan Stanley bids, must be relevant, and his duty to investors must require him to check to ascertain if he could obtain those prices to use as market context for the passthrough trades.

(d)     A duty framed in a limited way by the Defence, as being restricted only to the time of the actual transaction, would not advance the objective of s 201 to protect investors.

Evidence from material witnesses

42     To prove its case, the Prosecution witnesses called eight witnesses, including two experts for the trial. The Defence called the accused as its witnesses, but declined to call two other witnesses who had prepared expert reports, for the trial, even though the latter were originally expert witnesses that the Defence lined up for the trial.

43     I have summarised at [15] above the general roles of the Prosecution witnesses who testified at the trial. In addition, in light of the elements set out in the charges, and the nature of the s 201(b) offences alleged to have been committed, for purposes of discussing the Prosecution’s case, I will elaborate on the evidence of the more material witnesses in relation to the passthrough trades and Morgan Stanley’s bids on 19 January 2016. These would be the evidence of Mr Lai from OAIP, Ms Goyal from Morgan Stanley, and Mr Reshad from Pareto. I will also set out the opinion evidence led from the two experts called by the Prosecution, namely Ms Low and Mr Cheong.

Mr Lai’s evidence pertaining to OAIP, the funds and the passthrough

44     Mr Lai testified that he was employed by OAIP from March 2014 to sometime in May 2016, and that he reported directly to the accused. The accused was the "Chief Investment Officer", or CIO and “has oversight, in quite absolute terms, over all investment strategies and funds that One Asia has.”[note: 23]

45     Mr Lai was also a co-portfolio manager with the accused for SP1. According to Mr Lai, because of a trading halt imposed on him from 5 January 2016 until the time he left OAIP, the accused was the only one who retained the discretion to make trading decisions for SP1 sometime after 5 January 2016. Mr Lai said that to him, the trading halt imposed on him, equated to him not being a portfolio manager.[note: 24] He also testified that about two weeks before the MIE bonds were sold, which was sometime around the beginning of January 2019, the accused had instructed him to check the market for the MIE bonds and other bonds that were held by SP1 for purposes of price discovery, and he was to keep the prices of those bonds in either an Excel or Word format.[note: 25] He said that these logs were kept in the company’s folder and both he and the accused had access to them.[note: 26] Mr Lai said that there were some trades that the accused wanted to handle directly himself regarding SP1, specifically those for MIE and Indika.[note: 27]

46     Mr Lai also said that he had set up lines with Pareto, but at the time he was doing so, he did not know that they were being used to carry out the passthrough trades. He also does not know of any passthrough trades that OAIP has ever done with Pareto before that.[note: 28]

47     Sometime in late January 2016, the accused had given him instructions to confirm a set of trades from SP1 to SP5 with Pareto involving MIE and/or Indika bonds, which were passthrough trades. At that time, the accused was the sole portfolio manager of SP5. The accused told Mr Lai that he had already agreed with Pareto on the prices that the bonds were to be sold at.

48     Mr Lai said that he had no involvement in any of the discussions that the accused had with Mr Reshad, nor did he have any involvement in arriving at the prices that the bonds were sold by SP1 and bought by SP5. He also confirmed that based on P6, he was not involved in the chat between the accused and Ray Xie of Haitong on 19 January 2019. He does not recall being aware of the bid by Haitong, or that he knew about it. [note: 29]

Ms Goyal’s evidence on the bids made by Morgan Stanley

49     Ms Goyal, was a salesperson from Morgan Stanley. She gave evidence about the messages that she had exchanged with the accused on 19 January 2016, as reflected in two chats: (1) P4 – a mass chat; and (2) P64 – a one-on-one chat (see [31(b)] above).

50     In response to the accused’s request, she had posted bids at 10:01:24 a.m. in the main chat. The same bids were reposted at 10:09:34 a.m. The bids for the MIE bonds were as follows:

“miehol 18 - 33/"

“miehol 19 - 32/"

51     Ms Goyal testified that the bids were for the size of the MIE bonds that the accused had asked for i.e. 2.5 million for MIE18s and 1.5 million for MIE19s.[note: 30]

52     The accused had subsequently asked her at 10.15.21 a.m. and 10.15.29 a.m. whether her bids were for the whole block of 2.5 million for MIE18s and 1.5 million for MIE19s, and she responded “yes” 13 seconds later to his query. Before reposting the prices at 10:09:34 a.m., and before she replying to the accused at 10:15:42 a.m., she had checked with her trading desk to make sure that the prices were good.[note: 31]

53     At 10:23:42 a.m., she posted a message “Wei please refresh before trading". She explained what she meant by this message:[note: 32]

Typically, prices can become stale after a certain time, so it is just a message to him saying -- it is not saying that I can't buy them anymore, it is just me saying that, "If you are still interested in trading, please just refresh the prices with me", because there could be news coming, there could be other reasons why the prices can move, and it's just like a disclaimer, saying, "Please just refresh. Don't come back to me 10 minutes later, saying, 'I can sell you at those old prices.'"

[emphasis added]

54     Ms Goyal also clarified that the prices could go stale so if the accused or anyone else cannot come back seven or eight minutes later to confirm the trade, as the prices may have remained the same or may have changed, or the trading desk may not want to trade the bond anymore. Ms Goyal further elaborated on her “please refresh before trading" message:[note: 33]

…It's just one of those disclaimers we put. It doesn't really add anything substantively, but we still put that disclaimer because the conversation has gone cold, there's no other further conversation happening. So, in a way, it's just to close the topic, that, "Just refresh before trading."

Mr Reshad’s evidence on the passthrough trades

55     Mr Reshad testified that in 2015 and 2016, he worked for a Nordic investment bank called "Pareto Securities” where his role was to carry out institutional sales for high-yield bonds, and his job scope was to find capital from clients in Singapore and Hong Kong.

56     Mr Reshad said that when he was performing this role, it was very rare for him to do a passthrough trade for a bond that Pareto had not placed. For the MIE bonds, he had agreed to carry out a passthrough for the accused who had engaged him for this task. Mr Reshad said that he trusted the accused’s judgement on the prices to do the passthrough.[note: 34] In Mr Reshad’s words:[note: 35]

No, so this is a passthrough. This is a straightforward case of a client transferring bonds from one fund to another. So the price at which he did or the price that I was instructed at which to do it I felt was a price the client knew best, so I leaned on the client's judgment for that price.

[emphasis added]

57     Leading up to this transaction, Mr Reshad had exchanged a phone call with the accused (see transcript at P55) on an unspecified date where Mr Reshad had said:

... I just want to let you know [that] the accounts are all set up. If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great."

[emphasis added]

58     Mr Reshad explained that he told the accused to let him know the price, and the amount as he was totally leaning (i.e. relying) on the accused for the price because, for Mr Reshad, he was facilitating a straightforward execution and just wanted to know the price that the accused wanted him to do the transaction at.[note: 36]

59     Mr Reshad said that as this would be a passthrough done for a bond that he does not actively trade, he trusted the accused’s judgement on price, and did not believe that he himself has an obligation to do price-discovery for the passthrough. Mr Reshad said that there wasn’t even a consideration for him to look for buyers and sellers. Neither did he recall the accused telling him to conduct price discovery, nor did he expect the accused to ask him to do so.[note: 37]

60     Mr Reshad also said that he did not know who were the investors for SP1 and SP5, and specifically, he did not know that the accused was the majority shareholder of SP5 at that time.

61     Mr Reshad said that in the course of the passthrough trades:

(a)     The accused had made use of two separate chats to carry out the buying and selling of the MIE bonds, with SP1 selling to Pareto done by way of a group chat (started by Mr Reshad), and SP5 buying from Pareto carried out by way of a single/one-on-one chat (started by the accused). Mr Reshad said that he does not know why the accused started the single chat, as he had expected the correspondence for the buying and selling to take place by way of a group chat.[note: 38]

(b)     Mr Reshad said that as it was the same party buying and selling the bonds, he just relied on the accused for the price, and so when the accused unilaterally improved his offer to buy the MIE18 bonds (for SP5) from 25 to 25.5 at 10.39.55 a.m., Mr Reshad presented the corresponding adjusted price of 25.375 (25.5 minus Mr Reshad’s spread of 0.125) to the accused to buy the bonds from SP1 correspondingly.

(c)     Then the accused, on behalf of SP1, had said “done” to confirm the trade i.e. buy for SP1. For MIE19 bonds, the accused sold the bonds at 22 from SP1 to Pareto and bought the same bonds at 21.875 from Pareto for SP5.

62     The passthrough trades, carried out between the accused and M Reshad, were reflected in P72 (an exhibit produced by the Prosecution). I set out again an extract of P72 to reflect the trade.

\"\"

63     Mr Reshad confirmed that Pareto primarily does passthrough for bonds that Pareto placed, for which they were able to participate in the price discovery and discussion process. But for this passthrough trade, the price discovery was not done because he trusted the accused. Mr Reshad also said that at the time of the transaction, he did not think much about the pricing and executed it “without paying much heed to the price at which he did”. He did not find anything suspicious during the transaction.[note: 39]

Evidence from the experts

64     The Prosecution called two experts to render opinions concerning the passthrough trades of the MIE bonds. Both experts also produced reports which set out their analysis. I summarise the main aspects of their evidence below.

    (1) Evidence of Ms Low Guan Yi (“Ms Low”)

65     Ms Low is the head of Asia fixed income at M&G Investments Singapore, a global asset management firm that is part of Prudential plc. In this role, she oversees a team of 20 fund managers and analysts, managing multiple fixed-income funds. The funds are mostly invested in bonds issued by governments and corporations domiciled in Asia

66     Ms Low was called as an expert in the area of fund management of bond funds with experience in trading. For the trial, she prepared a written report rendering her opinion on trades carried by the accused for the MIE bonds (see P67 – report dated 25 May 2022).

(a)     Her position in both her expert report and her court testimony was that the accused owed a duty to obtain the best available prices for the sale of the MIE18 and MIE19 bonds.[note: 40] She testified that “[her] experience over the entire course of [her] career has been consistently that investment managers need to ensure the best outcome for clients”.[note: 41]

(b)     In her expert report, Ms Low specified that the accused owed a duty to ensure “best execution” which involves achieving optimal economic outcome, taking into consideration the market circumstances.[note: 42] This duty is usually met by asking at least three to five counterparties for prices and selecting the best executable price for the trade.[note: 43] She also made clear that this was the case, even though there were no applicable guidelines from MAS in place at the time, given that this duty is “part and parcel” of the duties and obligations expected of fund managers.[note: 44]

(c)     When asked by the Prosecution to elaborate on her evidence, Ms Low testified as follows:[note: 45]

Q:    … I want to ask you more again about this, which is: quite apart from these published documents, as far as the fund management industry, itself, is concerned, are there obligations, standards, or duties required of a fund manager outside these published documents and outside the PPM and the IMA? Can you respond?

A.    I think outside of the standards, the PPM, the IMA, as a manager of somebody else's money, I think it is understood that, you know, I have to behave in an honest, diligent, take my best efforts, protect the interests of the investor, even without these standards in place.

Q.    What do you mean by "even without these standards in place"?

A.    It's so as to demonstrate fair play. Right? The investor pays me a fee for managing his money, so I have to take due care, exercise proper diligence and effort and process, and, again, in my dealings, I should not harm the interests of the client.

Q.    So what you're saying is that outside the PPM, outside the IMA, other than what the PPM and IMA have said, and apart from certain publications having set out certain standards, what you've just said is that, in terms of the fund management industry, there are such obligations on the part of the fund manager? I just want to be clear that --

A.    Yes, there should be these obligations on the fund manager. There should be these obligations on the fund manager.

Q.    I had asked a question which you had not answered because my learned friend had stood up to object, and that question was: if these obligations that you've just said of a fund manager are not adhered to, what consequence, if any, would there be to the investor of funds?

A.    If there's a financial loss suffered by the investor and clearly, because of –

Q.    No, I'm not asking you about financial loss. My question is even broader, which is: if those standards that you just referred to are not adhered to, what consequence, if any, may there be to investors? Because when you answered if there is financial loss, you're already assuming a consequence.

A.    Back to my former answers, the reason why -- the Association of Fund Managers of Singapore and why they set out a list of standards and code of conduct is to instil confidence and faith in the investment management industry, including fund management industry, for the healthy development of the industry. So if such standards or such obligations are not upheld, to answer your question specifically, it would impact the ability of investors to believe in the industry and, hence, place their investments through the industry.

[emphasis added]

(d)     In addition, Ms Low said that besides exercising due care and diligence, when a fund manager decides on strategies, and whether to buy or sell securities and in what quantities, the process of carrying out the strategy must be consistent with the obligation to achieve the best result for the client.[note: 46]As regards the concept of fiduciary duty which she mentions as being owed to the client, Ms Low understands this to mean that the manager owes responsibility to the client to exercise due care and diligence and to do his best for the client. This would include managing conflicts of interest, mitigating conflicts of interest, and ensuring the client was not disadvantaged by the carrying out of his work. She further said that in the fund management industry, there is a generally accepted standard that fund managers owe fiduciary duties.[note: 47]Further, in the fund management industry, there is a generally accepted standard that fund managers need to resolve conflicts of interest equitably and fairly. This would ensure a fair outcome for the client ensuring that the interests of the client are protected.[note: 48]

(e)     Ms Low further opined that where the same manager wishes to sell assets from one fund while buying for another, this can be transacted via a “cross trade” (two funds trade directly with each other) or via a “passthrough” (through a counterparty as an intermediary). Where the fund manager wishes to do a passthrough with a broker, he will communicate that intention to the broker, and inform the broker on the funds involved and the passthrough prices (i.e. the sell prices and buy prices of the securities). He will also agree with the broker on the spread that he would earn As part of the fund manager’s fiduciary obligations to both funds, the cross-trade or passthrough must be done in accordance with the principles of fair dealing and, if applicable, best execution. [note: 49] Ms Low agreed with the Defence that there was nothing wrong with carrying out a passthrough trade, but the nub of the issue was how the fund manager came up with the pricing and whether it was fair pricing.[note: 50]

67     Specifically, as regards the MIE18 and MIE 19 bonds:

(a)     Ms Low took the position that the accused’s action on 19 January 2016 to broadcast to 11 counterparties at the same time of his need to sell a block each of the MIE18 and MIE19 bonds, and his actions to make it very clear that he needs to clear the bonds, taken into account the difficult conditions for MIE bonds, “..actually serves to depress the prices that he's likely to get.”[note: 51]

(b)     In any event, the fact that three counterparties came back quite swiftly with bid prices in the face of such supposedly difficult conditions means that the accused “…as a manager who needs to sell the bonds, [should] decide amongst the three prices what's the best price and execute the trade, rather than hold off and not execute the trade.”[note: 52]

(c)     The short duration in which Haitong/ Morgan Stanley/ BNP replied with firm bids for the bonds also showed that the bonds were tradeable even if they were not traded actively by all counterparties.[note: 53]

(d)     Given that Haitong’s bids at 10:06:26 Singapore Time (“SGT”) was 32 cents to the US dollar for MIE18 and 29 cents to the US dollar for MIE19 for 1 million in quantity of the bonds, and about 30 minutes had elapsed before Pareto’s reply at 09:37:27 PM Eastern Standard Time (“EST”) (10:37:27 SGT), the accused should have checked with Haitong whether their prices were still valid. If that was so, the accused should have sold 1 million of each bond to Haitong because Haitong’s prices were higher than Pareto’s for the two bonds, even though they were for smaller quantities.

(e)     Ms Low opined that in fact, Haitong’s prices were still lower than what Morgan Stanley quoted at 10:01:24 SGT and what BNP quoted at 10:22:17 SGT. It was thus puzzling why the accused did not ask Morgan Stanley and BNP whether their prices were still applicable with a view to selling the full quantities to them. Even if the prices no longer applied, the accused should have explored selling smaller sizes with BNP, Haitong, Morgan Stanley and Pareto with the aim of improving the best price execution for SP1. By not doing these, the accused failed to demonstrate best execution in the trades between SP1 and SP5. [note: 54]

68     Further, as regards the passthrough trades, Ms Low opined that:

(a)     Even though it appears that SP1 sold to Pareto and SP5 bought from Pareto via two separate transactions, the fact was that it was the accused who determined the buy and sell prices. Using the prices from Haitong (as reference prices even though they were lower than the prices from Morgan Stanley and BNP), he had asked Pareto to improve the bid for MIE 18 at 09:40:09 PM EST (10:40:09 SGT). In his message sent at 09:39:55 PM EST (10:39:55 SGT), The accused had raised the buying price for MIE18 from 25 cents to the US dollar to 25.5 cents to the US dollar, this enabled Pareto to improve the bid price from 24.875 to 25.375, making it better than Haitong’s price (25 cents to the US dollar) but Pareto would still earn a spread. Ms Low opined that there was no need for the accused to have asked Pareto to improve the bid for MIE 19 as at 21.875 it was already higher than the bid by Haitong (20 cents to the US dollar).

(b)      Ms Low was of the view that by the accused determining the buy and sell prices, this showed that Pareto was just an intermediary facilitating the transfer of the bonds from SP1 to SP5 using prices determined by the accused in a manner that was unfair to SP1 . The latter demonstrated that the accused had not fulfilled his fiduciary duty to SP1.[note: 55]

69     As regards the bids from Morgan Stanley:

(a)     When the accused asked for bids from Morgan Stanley, he had already indicated the quantities of the two bonds that he wanted to sell. Thereafter, the Morgan Stanley bids (Miehol 18 - 33/ miehol 19 – 32), and BNP’s bids (Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36) would be applicable to these quantities. Thus, the accused should have sold the bonds to Morgan Stanley and/or BNP in order to meet best execution to obtain optimal economic outcome from the sale of the bonds.

(b)     Ms Low opined that the accused did not need to ask Morgan Stanley again whether the prices were for the whole block. However, since the accused did ask, he should have checked for Morgan Stanley’s response. In any event, since the accused knew of Morgan Stanley’s prices, which were better than those offered by Haitong, likewise he should have checked for Morgan Stanley’s response to his question (whether the prices were for the whole block).[note: 56] He could also have at least asked Pareto to match Morgan Stanley’s bid. Instead, the accused went ahead to sell the bonds from SP1 to SP5 through Pareto.

(c)     As a result, SP1 investors were clearly worse off as they could have obtained better prices for the two bonds had the accused sold them to Morgan Stanley and/or BNP. The accused could have sold the MIE18 bonds to BNP and the MIE19 bonds to Morgan Stanley or sold both bonds to either of them. Any of these permutations would have resulted in a better economic outcome for SP1 investors than the prices sold to SP5 through Pareto. Thus, the accused failed to demonstrate best execution in trading the bonds between SP1 and SP5. [note: 57]

70     As for whether the accused could have missed out on a price given by a counterparty, Ms Low stated that “If many counterparties came back with prices, yes, it's possible to miss out one or maybe even two of the prices that came back. But on 19 January, given only five counterparties came back with prices, I think it reasonable to expect the accused to have seen most of these prices that came back.”[note: 58]She clarified her answer further:[note: 59]

Q.    What do you mean by "most of these prices that came back"? What was your reference there to?

A.     I think that the three that came back quite promptly, by 10.09, which would be Haitong, Morgan Stanley --Morgan Stanley came back first -- Morgan Stanley, Haitong and Barclays quite close, think these three, the prices should have been picked up on, and any questions that the accused had, the answers should have been followed through on, because these three came back quite promptly. The SC Lowy's prices that came back at 10.16, I think we have already answered that it seems that he saw the price for MIE19 given by SC Lowy. Now, the BNP exchange took a bit more time. BNP only came back at 10.22, but prior to that, there was quite a few questions and answers between the accused and the BNP salesperson to verify what is the size of the position he's looking to sell. So I would expect then the accused to look out if BNP came back to him with a price, since there was quite a bit of question-and-answer between the two of them.

[emphasis added]

71     She further commented that “…given that he is the one deciding for both funds, to ensure independence and objectivity, it would be better to get another manager to represent SP1 in the selling, rather than him acting for both funds.”[note: 60] Ms Low said that even if there was no specific policy or mention in the PPM or IMA on how prices are set our determined, or the actions or measures or conditions to demonstrate best execution, “…there would be a need to demonstrate best execution so as to meet the fiduciary obligation to the client”.[note: 61]

72     Ms Low was of the view that the accused had failed to meet best execution requirements in the trading of the bonds or selling of the bonds from SP1. Ms Low explained her opinion as follows:[note: 62]

…Between 10.06 and 10.09, he had clearly responded to prices from Haitong and Morgan Stanley, and of these two price, Morgan Stanley prices were the higher ones. He should have followed through to trade on those prices… As in acknowledged or shown that he has seen the prices provided by Haitong at 10.06 and the prices provided by Morgan Stanley at 10.09. Between the two, it's clear that the best executable prices would be to sell to Morgan Stanley. So best execution would require that he sell the bonds to Morgan Stanley or at least use the Morgan Stanley prices as reference.

[emphasis added]

73     In addition, Ms Low opined that the accused had breached fair dealing in that he had benefitted SP5 at the expense of SP1. This is because “By passing through the bonds, meaning SP1 selling at a lower price than what SP1 could have gotten in the market, the beneficiary was SP5.”[note: 63](emphasis added)

74     On whether the accused breached his fiduciary duty to SP1, Ms Low opined that:[note: 64]

My opinion is the process did not manage or mitigate the conflicts of interest. That's one. My second opinion is he breached his fiduciary duty to SP1 because the process of selling the bonds from SP1, that the whole process did not meet the requirements of best execution and fair dealing.

[emphasis added]

75     Ms Low added that she took the position that the accused had breached his fiduciary duty “… because he did not ensure that SP1 was not disadvantaged in the passthrough. By "disadvantaged", [she] means having an economic outcome in the passthrough that is worse than what SP1 could have gotten in the market”.[note: 65] In addition, when asked further by the prosecutor on her view about his breach of fiduciary duty, she elaborated as follows:[note: 66]

Q.    So another question I want to ask you, perhaps in a more general way, is: if the accused had seen any of the bids from the other counterparties, other than Haitong, and then he carried out the passthrough trades of theMIE18 and MIE19 with Pareto in those prices that we have agreed set out in your report, has he breached his fiduciary duty?

A.    The other prices received would be Barclays for MIE19 at a price of 25, which is higher than the passthrough price of 21.875. SC Lowy gave a price of 28.5 for the MIE19s, which is also higher than the passthrough price used of 21.875. So for MIE19s, I would agree that he has not fulfilled best execution requirements.

Q.    My question was about fiduciary duty.

A.    And hence he's in breach of his fiduciary duty to SP1.

Q.    Your answer was on MIE19?

A.    Correct.

Q.    What about MIE18?

A.    MIE18s, we would have to use the Haitong prices and the Morgan Stanley prices.

Q.    What do you mean, "we would have to use"?

A.    Because only Haitong, Morgan Stanley and BNP came back with prices for the MIE18.

Q.     So if the accused had seen those prices, would he have breached his fiduciary duty by passing through the trades of MIE18 to Pareto?

A.     Yes, he would have, because if he had seen those prices, they were all higher than the passthrough price of 25.375 used for the MIE18s.

Q.    Earlier, you talked about MIE19, the price SC Lowy gave for MIE19. You also talked about Barclays. Now, we know that for the MIE19, Morgan Stanley also came back with a price.

A.    Correct.

Q.     So, again, I then need to ask you: if the accused had seen the Morgan Stanley price of MIE19, then, likewise, in passing through the trades with Pareto at the prices we know, the Pareto prices, did he breach his fiduciary duty?

A.     Yes, because the passthrough was at a lower price.

Q.    And I also want to ask: in terms of my questions here, if he had seen the prices of these counterparties and passed through the trades of MIE18 and MIE19 with Pareto at the Pareto prices, did he breach best execution?

A.    He breached best execution by passing through at prices lower than what he had seen. Again, your question is if he had seen those prices.

Q.    Yes.

A.     So if he had seen those prices and they were all higher than the Pareto prices, then he breached best execution, and hence fiduciary duty, by passing through Pareto at those lower prices -

[emphasis added]

(2)    Evidence of Mr Cheong Wei Ming (“Mr Cheong”)

76     Mr Cheong is a fund manager at Eastspring Investments (Singapore) Limited, a global asset management firm that is part of Prudential plc. He is part of the fixed-income dealing team which executes trades and engages market participants. He prepared an expert report pertaining to the execution of trades including of bonds for this case (P68– dated 27 May 2022). He also gave evidence in court. The Defence highlighted that Mr Cheong had stated in court that he was giving evidence as an expert on bond trading, and not as a fund manager.[note: 67] However, Mr Cheong confirmed that as he has been a portfolio manager since 2008, he was giving his opinion based on his experience both as a bond trader and a fund manager.[note: 68]

77     In the present case, Mr Cheong took the position that the accused owed a duty to ensure that he obtained the best available prices for the sale of the MIE18 and MIE19 bonds.[note: 69] Specifically, in his expert report, Mr Cheong stated that when a fund manager wishes to sell bonds, he should check for prices “in order to find the best available price to maximise the investment return”.[note: 70] Mr Cheong further stated that even in situations where there was low liquidity for a bond, this does not mean that there will be no bids in the market for the bond.[note: 71]

78      As for whether the quotes received by the accused in this case were executable, Mr Cheong stated that where a request for a bid provides the security identifier and the quantity of the bond, a bid received in response should be understood to be a tradeable/executable bid.

79     Specifically, on 19 January 2016, at 10:00:23 a.m. and 10:00:44 a.m. when the accused first sent out the following messages to the counterparties to ask for bids for three bonds he wanted to sell, the accused had provided the security identifier and quantity of the bonds. For the MIE bonds, he was asking the counterparties whether they wanted to bid for the two bonds of quantity 2.5 million of MIE18 and 1.5 million of MIE19. Mr Cheong said that it was clear that the accused’s message contained the quantity and the security identifier of the bonds that he wished to sell.[note: 72]

80     As regards the bids from Ms Goyal of Morgan Stanley, Mr Cheong stated the following:

(a)     Having regard to the earlier message by the accused asking for bids, the message sent at 21:01:24 EST (10:01:24 SGT) by Ms Goyal were prices to buy 2.5 million of MIE18 and 1.5 million of MIE19 at 33 cents to the US dollar and 32 cents to the US dollar respectively.

(b)     Further, the message sent at 21:09:34 EST (10:09:34 SGT) by Ms Goyal was a repeat of her bids at the same price for the same quantity of the MIE18 and MIE19 bonds. His view was that the bids contained in both the messages sent at 21:01:24 EST (10:01:24 SGT) and 21:09:34 EST (10:09:34 SGT) were firm. Mr Cheong further explained that when the fund manager or trader sends out to the counterparties the details of the trade that they want to engage in, in this case, the accused had indicated that he wanted to sell 2.5 million MIE18 and 1.5 million MIE19, when the counterparties see these details and they responded with the bid prices, unless stated otherwise, these bids are executable.[note: 73]

(c)     Additionally, when the accused posted his response “for the whole block?” at 21:15:21 EST (10:15:21 SGT) to Ms Goyal, this showed that the accused saw and knew of the bid prices for the full quantities of the two bonds which Ms Goyal had posted in her messages at 21:01:24 EST (10:01:24 SGT) and 21:09:34 EST (10:09:34 SGT). Ms Goyal had responded “yes” at 21:15:42 EST (10:15:42 SGT). That was the third time her messages showed that her bids were firm.[note: 74] Also, having asked her, the accused should have checked to make sure if she had responded to his question.[note: 75]

81     As regards the bids for MIE18 and MIE19 bonds from Mr Ray Xie of Haitong, the message sent at 10:06:26 SGT by him was a bid for 1 million of MIE18 at 32 cents to the US dollar, and 1 million of MIE19 at 29 cents to the US dollar. In response, at 10:06:52 SGT, the accused had asked him to give bid prices for the full quantities in the accused’s earlier message of the two bonds instead of the smaller quantities that he had given. The next message from Mr Ray Xie at 10:08:50 SGT quoted 25 cents to the US dollar for MIE18 and 20 cents to the US dollar for MIE19 for the full quantities the accused had earlier asked about. The bids contained in Mr Ray Xie’s messages at 10:06:26 SGT and 10:08:50 SGT were also firm.[note: 76]

82     As regards the bids of MIE18 and MIE19 from Ms Pamela Tsang of BNP, having regard to the earlier messages by the accused, the message sent at 02:22:17 GMT (10:22:17 SGT) by Ms Tsang to the accused was a price quote to buy 2.5 million of MIE18 and 1.5 million of MIE19 at 34 cents to the dollar and 31.5 cents to the dollar respectively. The rest of her message was that in the alternative, BNP could quote a higher price than for smaller quantities of the bonds the accused wanted to sell. For the remaining quantities, BNP could help the accused with the sale. The bids contained in the message sent by Morgan Stanley Pamela Tsang at 02:22:17 GMT (10:22:17 SGT) were firm.[note: 77]

83     As regards the sale of bonds from SP1 to SP5 via the passthrough trades in the present case, Mr Cheong was of the view that these trades were not appropriate because the accused should have sold the bonds at the higher bids that were given to him. Specifically, the accused should have sold the MIE18 bonds from SP1 to BNP at 34 cents to the US dollar and the MIE19 bonds from SP1 to Morgan Stanley at 32 cents to the US dollar. Mr Cheong said that it was common for Morgan Stanley to buy only MIE19 bonds alone since they did not say that they would only trade if SP1 was only selling them both bonds as a block.[note: 78] On the basis of Mr Cheong’s evidence, the accused could have sold MIE18 to one counterparty (e.g. BNP) at the price they quoted, and MIE19 to another counterparty (e.g. Morgan Stanley) at the respective higher prices.

84     As regards the bid from BNP which the accused claimed not to have seen, Mr Cheong said that since the accused knew that he had sent out a request to various counterparties as part of price discovery, he should have gone back to the chat room to ensure that there were no bids from these counterparties.[note: 79]

85     In the present case, despite receiving the higher bids, the accused instead sold the bonds at the lower prices of 25.375 cents to the dollar for MIE18 and 21.875 cents to the dollar for MIE19 from SP1, and bought the bonds into SP5 at 25.5 cents to the dollar for MIE18 and 22 cents to the dollar for MIE19 through Pareto. The accused thus failed to maximise the sales proceeds for investors of SP1. Further, the accused should not have allowed SP5 to buy the bonds at prices that were to SP1’s detriment. At the minimum, SP5 should have bought the bonds at prices equal to the highest bids given by BNP (for MIE18) and Morgan Stanley (for MIE19).[note: 80]

86      The accused could have used Haitong’s bids as reference only if Haitong’s bids were the only bids he received and saw. Given that there were two higher bids from BNP and Morgan Stanley, he should not have used Haitong’s bids as the reference for the trades between SP1 and SP5. This was especially so as he saw Morgan Stanley’s bid of 33 cents to the dollar for MIE18 and 32 cents to the dollar for MIE19 which Morgan Stanley posted at 10:01:24 SGT and 10:09:34 SGT. Mr Cheong said this because the accused responded at 10:15:21 SGT to ask whether the prices were “for whole block?”.[note: 81]

87     In the present case, while the accused had reached out to 11 counterparties for the MIE bonds:

(a)     The passthrough trades that he actually carried out based on Haitong's price as a reference were inappropriate “(b)ecause from the chat conversation, there were responses from other counterparties that came back with firm bids.”[note: 82]Further, “(c)ompared to Morgan Stanley, compared to BNP prices. He should have used those higher bids that's available to him for the passthrough.”[note: 83]

(b)     Mr Cheong also said that his view that the passthrough trades carried out by the accused using Haitong’s prices were inappropriate “…because from the fiduciary duty obligation angle, the fund manager has to act in the best interests of the investor. Hence, knowing that there are higher bids in the market for the selling fund, that is the price that he should be using for the passthrough trade. And because this passthrough was actually executed at a lower bid, hence from that perspective it's not appropriate”.[note: 84]

(c)     In short, “…the accused has seen higher prices. He's aware there are higher prices. As a result, when the cross trade was being carried out at 10.41..he cannot just rely on only Haitong's price…He should at least have checked back with Morgan Stanley”[note: 85]

(d)     Mr Cheong further said that if the accused did not see BNP’s prices when posted, and if Morgan Stanley was refreshed, the accused could have used Haitong’s bids as a reference if Haitong’s bids were the only bids he received and saw. Mr Cheong further said that there were in fact no firm bids at 10.41 am:[note: 86]

88     In court, Mr Cheong said that his disagreement was with the price the accused used in the execution of the sale, in that the accused should have taken into account the BNP and Morgan Stanley’s prices.

(a)     In the case of Morgan Stanley’s prices, Mr Cheong said that after Morgan Stanley had said “please refresh before trading”, the accused should have gone back to Morgan Stanley to check with Morgan Stanley because they had given the best prices for the bonds the last time. This duty to check, was because “…fund manager owes a fiduciary duty to your investor because they are entrusted with the money to manage in the best interest.”[note: 87] This means getting them the best returns.[note: 88]

(b)     While there was no mandatory requirement or specific regulation for the accused to re-do price discovery for the MIE bonds after the refresh by Morgan Stanley on 19 January 2016,[note: 89] and even though it is not stated in the policies, Mr Cheong said that to ensure fair dealing due to the fiduciary duty owed to the investor, the accused has to act in the best interests of the fund and get them the best returns by selling at the highest possible price and buying at the lowest possible price. This applies even if there is no central dealing desk and the fund manager and trader wears the same hat to do the planning and execution of the trade.[note: 90]

89     Further, Mr Cheong said that the duty to act in the best interests of investors means ensuring that the interests of the investors are looked after and avoiding benefitting oneself at the expense of the investor.[note: 91] This is rooted in the fact that investors have entrusted their money to the fund manager to look after for them.[note: 92]

90      Mr Cheong elaborated that acting in the best interests of a fund included getting the “best returns” which means selling at the highest possible price.[note: 93] This obligation, in his view, was breached by the accused because he executed the trades at a low price,[note: 94] with knowledge of the other earlier higher prices. Thus, he maintained his view that the trades were inappropriate because the accused had to act in the best interests of the investors and could not execute the passthrough trades while knowing that there were higher bids in the market.[note: 95] In Mr Cheong’s view, as the fund manager of SP1, the accused owed a fiduciary duty to the investors of SP1.[note: 96]

91     Further, on the issue of the conflict of interest in the present case:

(a)     Mr Cheong explained that as the accused has a financial interest, specifically a vested interest in the buying fund (SP5), and in this circumstance where the buying fund has bought the bond at a price that was lower than the available bids in the market, there was this potential gain that he, being an investor in the buying fund, would stand to gain.

(b)     Mr Cheong explained that the accused has to act in the best interests of his investors and that he should not be benefitting at the expense of the investors. This was the understanding Mr Cheong has from his years in the industry, whether be it a trader or be it a fund manager.[note: 97]

(c)     Here, being a major shareholder in SP5, and buying the bonds at a bid price that was lower than another available bid in the market, the accused stood to gain from that transaction. It also meant that the investors in SP1, which was the selling fund, would have lost out on the opportunity of selling at a higher bid.[note: 98]

92     Mr Cheong further opined that in the passthrough trade, Pareto was merely acting as a broker to facilitate the trades of the two bonds between SP1 and SP5. This was clear from the messages exchanged between Pareto and the accused where Pareto made the spread between the bid and offer prices put up by the accused. Specifically, from the chat messages between Pareto and the accused, Mr Cheong said that it appears that Pareto was not doing any price discovery for the accused,[note: 99]and from the sequence of the conversation between the accused and Mr Reshad, “…Mr Reshad is just taking the price from [the accused], both for SP5 and SP1, to help to pass through the trade.”[note: 100]

93     Finally, Mr Cheong said that had the accused sold the two bonds from SP1 to the market, SP1 investors would have made the additional amounts (in US currency, excluding transactional costs), of $215,635 and $151,875 as shown in the following tables:

Quantifying the impact of selling to Pareto instead of to the market Bid for 2.5 million of MIEHOL 18

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(2.5 million x bid price)

Impact ($)

(sales proceeds – 634,375)

1

BNP

34

850,000

215,635

2

MS[note: 101]

33

825,000

190,625

3

Pareto

25.375

634,375

-



Quantifying the impact of selling to Pareto instead of to the market Bid for 1.5 million of MIEHOL 19

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(1.5 million x bid price)

Impact ($)

(sales proceeds – 328,125)

4

BNP

31.5

472,500

144,375

5

MS

32

480,000

151,875

6

Pareto

21.875

328,125

-



94     At [52] of the PRS, the Prosecution emphasised the following:

(a)     First, the two experts have maintained throughout that the accused ought to have gone back to check with Ms Goyal even after her 10:23 a.m. message of “please refresh before trading”, even though there was no specific rule or regulation mandating or requiring this, and that this was part of the accused’s duty.

(b)     Secondly, they testified that the passthrough trades were not appropriate because the accused did not go back to Ms Goyal to check, given that he knew of her earlier higher prices.

95      The Prosecution also highlighted that the Defence did not call any of their own expert witnesses to contradict the key aspects of Ms Low and Mr Cheong’s evidence.

The Defence’s case

Duty owed to SP1 investors by the accused as the portfolio manager of SP1

96     The Defence argued that breaching a duty to take reasonable care, for example, cannot in itself and without more, result in an offence under s 201(b). Instead, for an offence under s 201(b) to be made out, this requires deception, deceit or dishonesty on the part of the accused.

97     Further, there was no offence committed in the present case as there was plainly no such legislation, regulation, guideline, or other policy statement with equivalent effect, dictating what the accused ought to have done to conduct the passthrough – including that he should / ought to have:

(a)     Sold the MIE bonds “shortly after” 10:15 a.m. (when Ms Goyal had confirmed that the bids made were for the blocks of MIE bonds that the accused had sought bids for;

(b)     Broken up the block of MIE bonds into MIE19 and MIE18 for separate sale of these bonds; or

(c)     Checked back with Morgan Stanley for a new bid price after the earlier bid had been refreshed.

98     In addition, as regards the meaning of fraud, the Defence argued that

(a)     The Prosecution’s conclusion[note: 102] - that the cases they cited stand for the proposition that fraud should be found where there is: (i) a breach of duty; and (ii) the accused knew or intended this breach would cause loss to investors or gain to oneself - was not correct.

(b)     It cannot be the case that a breach of duty with the intention of causing loss to others or gain to oneself, amounts to “fraud” under s 201(b). There must be an element of dishonesty, deceit, or deception. This is also clear from the species of fraudulent conduct that are set out in s 200(1) of the SFA.

99     As for the element of “likely to operate as a fraud” under the Second limb of s 201(b), the Defence took issue with the Prosecution’s contention that since there must be some difference in the first (“operate as a fraud”) and second (“likely to operate as a fraud”) limbs of s 201(b), this “must mean” that:

(a)     “the accused need not have intended to operate a fraud, and that the effect of the act, i.e., ‘operate as a fraud’, must be assessed objectively”; and

(b)     “the mens rea of the two limbs cannot be the same”, and “the offence is made out “so long as the accused does an act which objectively operates as a fraud on investors. The mens rea is the doing of such an act intentionally”.

100    The Defence argued that the word “likely” in the context of the phrase “likely to operate as a fraud” instead means that fraud has operated as a matter of factual causation, so long as it is likely to have operated. In other words, the word “likely” merely caters for a situation where no sale or purchase of securities has been induced or the market price of securities was not actually affected, so long as there was such potential.

101    I move on now to set out in some detail the evidence of the accused on various aspects of this case.

Evidence of the accused

102    Despite initially indicating that they intended to call two expert witnesses, and initially tendering the reports of these two potential experts, the defence counsel ultimately declined to call these two potential experts to give evidence. As such, the accused was the sole witness for the Defence.

103    I summarise the main aspects of the accused evidence below.

Role and duty to investors

104    In December 2015 and 2016, the accused was a director of AACF, the CIO and a director of OAIP, which itself was the fund manager of AACF. As for the sub-funds of AACF, both Mr Lai and the accused were the portfolio managers. The accused explained that this was a functional role, whereas the fund manager is the legal entity, and that “…in fund management activities, it includes a portfolio manager, trader, analyst, settlements. So all these are jobs pertaining to fund management.”[note: 103] He testified that portfolio managers in OAIP are there to make investment decisions for their portfolio, whether to buy or sell, and they had to do the trading themselves.[note: 104]The accused testified that as a portfolio manager, he had many things to do to manage the sub-fund, but as a director of the fund, there was not much to do on a day to day basis.[note: 105]

105    In the case of his role as a portfolio manager, the accused clarified that he was “more involved with the fund activities ranging from research down to execution of trades down to reporting and marketing. So it covers the entire spectrum of work required for the SP”.[note: 106] He stated that “(i)n One Asia, we are a much smaller firm, so the portfolio manager does everything, everything from research to price discovery, to execution, to marketing. We …do everything.”[note: 107] Between the accused and Mr Lai, who was the other co-portfolio manager, the latter was predominantly focussed on SP1 as compared to the accused who had duties for the other funds.

106    The accused agreed that as the portfolio manager of a sub-fund like SP1, he acts in the best interest of the sub-fund that he manages. [note: 108] He agreed that when a portfolio manager goes about to sell any asset of the sub-fund, he has to sell at the highest available price that he could obtain given the circumstances.[note: 109]

Q.    Now, I want to ask you, as the portfolio manager of SP1, or for that matter as a portfolio manager of any of the sub funds, when you go about to sell any asset of a sub-fund, did you have to sell at the highest available price that you could obtain?

A.     Yes, I do.

Q.    All right. That is logical because it is in order to get the highest available price for the sub-fund in selling any asset of the sub-fund, isn't it?

A.    Yes, it's logical to get the highest available price at that point of time given the circumstances then.

Q.    I understand. And it is also logical and makes sense because the investors of a sub-fund invested money into the sub-fund for the portfolio manager to invest, including to sell, correct? So if you don't understand my question, my question simply is that what you agreed as to the portfolio manager having to sell at the highest available price in the circumstances any asset of a sub-fund, it is because investors of a sub-fund invest the money into the sub-fund for the portfolio manager to invest, including to sell assets. It is just a follow-on question. Do you agree?

A.     Yes. In general I agree, yes.

Q.    That's fair. Now, do you also agree with me that investors of a sub-fund, when they invest money to the sub-fund, they entrust their money to the portfolio manager to invest, including to buy using their money or to sell assets of the sub-fund?

A.     Yes, I agree.

Q.    Having heard from you on these questions I asked, would you be able to also agree then that for a portfolio manager to sell any asset of a sub-fund at the highest available price you could obtain in the circumstances, that was also a duty of the portfolio manager?

A.     Yes, I agree.

[emphasis added]

107    Specifically, the accused agreed that “in the course of liquidating SP1's assets, the portfolio manager of SP1 had a duty to sell its assets at the highest available price so that the … sub-fund SP1 would get back as much sale proceeds as possible”, and “…the investors of the sub-fund could get back as much sale proceeds as possible.”[note: 110] However, the accused said that his view that this duty was derived from his employment contract with OAIP, and that as a portfolio manager, he does not have any fiduciary duty to the investors of SP1.[note: 111] However, I note that despite the accused’s claim that his duty was derived from his employment contract, the accused’s employment contract was not actually produced in evidence by the Defence.

108    When clarification was subsequently sought on his answers, the accused apparently changed his position and said that no one owes any duty to the investors.[note: 112]

COURT:

The second part doesn't really answer the question I pose. So in terms of trading or investment, does anybody owe any duty to the investors of SP1?

A.

No, your Honour, not to my understanding.

COURT:

So nobody owes any duties to the investors of SP1 for trading or investment?

A.

Yes, your Honour. Because there's the investment management agreement, it's a contract. It's a commercial contract to my understanding.



109    Thereafter, while stating that “…the portfolio manager, when they sell things they sell at the highest available price”, his subsequent position was that “…the portfolio managers do not owe a duty to the investors.”[note: 113]

Conflict of interest in selling assets from SP1 to SP5

110    The accused agreed that where one sub-fund wants to sell an asset such as a bond to another sub-fund, the selling sub-fund would want to sell at the highest possible price available, while the buying sub-fund would want to buy at the lowest available price.[note: 114]

111    Despite this, the accused denied that he was in a conflict of interest position even though he was the portfolio manager and managing both sub-funds, SP1 and SP5, and he was the majority shareholder of SP5[note: 115], in the intended sale of the MIE bonds from SP1 to SP5. The accused claimed that his interest in SP5 did not create any conflict of interest and that there was (already) a conflict of interest by virtue of the sale of bonds from SP1 to SP5.

112    Nonetheless, the accused said that both Mr Lai and he did not identify this to be an issue, and they did not think there was an actual conflict of interest.[note: 116] In particular, the accused claimed that he would not actually be in a conflict of interest position if the price for the sale was fair. Further, the price would be fair, if it was determined through a price discovery process with Pareto engaged as an independent intermediary to create an arm’s length transaction.

113    Further, while agreeing with the Prosecution that in a sale of assets from SP1 to SP5, this may affect SP1 if the sale was not done at the highest price, the accused denied that there was any requirement for him to disclose such a potential conflict of interest to the SP1 investors.[note: 117]

On what constitutes a firm bid for the MIE bonds

114    The accused was questioned about the statements that he previously made to CAD. The Prosecution pointed out that in various statements made by the accused, he had stated that for a bid, the broker must use the word “firm” before it was considered as a firm quote (P79 at Q106, P81 at Q286, Q287, Q288 and Q289, P80 at Q474). Nevertheless, I noted that in his final statement that was admitted for the trial (P82 dated 6 February 2018), the accused appeared to vacillate on whether had to see both the word “firm” and the size of the bid before it is considered a firm bid.

Question 613

You mentioned in the previous interviews, that if a broker provides a quote without mentioning the word firm, it means that the quotes are indicative and you need to look out for the word 'firm' so as to know if the price quoted is a confirmed price. You also mentioned just now that Morgan Stanley did 108 not mention the size and the word 'firm'. Can you explain the quote of USD33 for MIE18 and USD32 for MIE19 here?

Answer

These are indicative quotes.

Question 614

Why are these indicative quotes?

Answer

Morgan Stanley did not mention the word 'firm' and the size.

Question 615

Do you need to see both the word and the size? 'firm'

Answer

Yes.

Question 616

If the broker only provides the size and does not say 'firm' , is the quote a firm quote?

Answer

No.

Question 617

If the broker only says 'firm' and did not mention the size, is the quote a firm quote?

Answer

Yes .

Question 618

Then do you need to see both the word 'firm' and 'size' so that you know that it is a firm quote?

Answer

Yes. I need to see both.

Question 619

If the broker only says 'firm' and did not mention the size, does it mean that it is a firm quote?

Answer

No, I need to see both the size and the ’ word 'firm'.

Question 620

Does it mean that if the broker says either 'firm' or the size, it is an indicative?

Answer

Yes .



Events leading up to sale of MIE bonds on 19 January 2016 and Mr Lai’s restricted mandate

115    Following the redemption request made by SCL on 18 December 2015, Ms Tan emailed Mr Goh and stated that SCL would arrange for the redemption request form to be signed, upon receipt of the form from Mr Goh. She also stated that the “liquidation of the funds is allowed till end January 2016 and the proceeds will be remitted to the holder, namely [SCL] in 7 days after the relevant dealing date”[note: 118]

116    According to the accused, what Ms Tan was saying was for them “…to sell everything, liquidate the fund…and sell for me by the end of January and give me everything by seven days after the first dealing date of February.”[note: 119] By way of an email dated 28 December 2015 sent by Ms Tan to Mr Goh which was copied to the accused, Ms Tan attached a “duty signed redemption form” in respect of the redemption of its investment in SP1. The accused said that by the end of December 2015, he knew that SCL wanted to proceed with its redemption in SP1.[note: 120]

117    As regards the mandate by Mr Lai to trade for SP1, by way of an email (D16) dated 4 January 2016 from the accused to Mr Lai which the accused signed off with his name and CIO designation, the accused had told Mr Lai that he was to refrain from “…all trading activities on all funds/accounts including HYBF [which was SP1] with immediate effect. This will stay in place until further instructions are given." The accused agreed that the intention of the email was that Mr Lai should not trade and that he should consult the accused before he traded.[note: 121]

118    The accused also took the position that on 15 January 2016, Mr Lai, Mr Goh and he decided to proceed with a normal redemption by liquidating all the assets of SP1 in order to facilitate the redemption on 1 February 2016 by SCL, and that the assets of SP1 had to be liquidated in a short time frame between 15 January to the end of January 2016.[note: 122] The accused denied that they had all the way until the end of January to sell the assets. This was allegedly because they needed to factor in the time for administrative purposes, including moving the funds from one account to another, time to settle trades, and reconciliation. He estimated that they needed anywhere between five to seven working days to settle the process. The accused said that the bulk of the trades for SP1 took place between 19 January 2016 to 22 January 2016.[note: 123]

119    The accused also said that as they were in a liquidation process, he was mindful and kept telling everyone to document things properly.[note: 124] Based on the trade logs of the assets of SP1 (P75), the last bond held in SP1 was called Bumi Resources and it was sold on 25 January 2016, as part of the process of liquidating the entire SP1.[note: 125]

The passthrough trades on 19 January 2016

120    The accused initially said that he could not recall if there was any documentation of the plan to use SP5 as a backup plan if necessary to buy the bonds from SP1.[note: 126] Subsequently, upon further cross-examination, he agreed that there was no written documentation of this plan, claiming that no documentation was required.[note: 127]

DPP: .

Thanks. But my position to you again is there was no documentation of the declaration or disclosure or informing Mr Kelvin Goh of this plan -- of this decision to use the SP5 as a backup plan to buy bonds from SP1. Do you agree or disagree?

A.

So documentation as in the email was the documentation that -- that I have, the email currently.

Q.

Which email --

A.

There was no written documentation. The documentation

that Kelvin Goh had returned that he asked the question

and we discussed it.

Q.

So P69, that relevant email I earlier asked you about?

A.

Yes, he asked it. He asked it and we discussed it subsequently.

Q.

Yes, I understand you say there's no documentation --

A.

But that's my sense of some of the documentation that we had.

Q.

I know what you are saying, right.

A.

Because there's no official documentation that is required, the form of the documentation. If there is --if it's required, then probably we have done it.



121    According to the accused, the liquidation process only actually started on 19th January 2016 at 10 a.m. in the morning.[note: 128] He said that in order to meet SCL’s redemption by 1 February 2016, to be valued as of 29 January 2016, it was important to take immediate steps to start liquidating SP1’s portfolio. He also said that time had to be factored in for administrative purposes, including “moving of funds from one account to another account, including time to settle trades, time for reconciliation”.[note: 129]

122    In all, the accused estimated it would take five to seven working days to settle this process,[note: 130] before SCL’s redemption could be completed and the redemption funds paid to SCL. The accused further said that it was important to exit the MIE bonds and Indika bonds as a priority, as MIEHOL was under a lot of negative headlines and Indika was also one of the distressed companies in SP1’s portfolio. The accused said that he was “…extremely concerned about MIEHOL not just being downgraded to B minus but there were a lot of indications that there is more negativity and there's more price pressures to come in the days and the weeks to come.”[note: 131] Furthermore:

... there's a double whammy per se for [MIE Holdings]. They are an oil and gas company and they are a Chinese company. And coupled with the negative news from the rating agencies where they downgrade just I think about two days back -- one to two days ago, there was a lot of pressure on these bonds. So on the 19th was when we decided to liquidate and what do we liquidate? MIEHOL bonds stands out to me that we need to exit this position quickly.[note: 132]

123    The accused also said that he had a hectic schedule on 19 January 2016. He attended a medical check-up early in the morning and was scheduled for meetings with another fund at 10:30 a.m. followed by a luncheon. He was thereafter scheduled to fly to Shanghai, China that evening at 5:05 p.m.

124    Although the timing was tight, the accused testified that “if possible, [he] would like to exit this whole position [i.e. the MIE bonds and the Indika bonds] quickly in the morning before [he left] Singapore at least in terms of the liquidation process we have started it and taken off some of the more difficult positions in the portfolio”.[note: 133]

125    Furthermore, as SCL’s redemption would have to be processed at a NAV value of 29 January 2016, there was a deadline of roughly 22 January 2016 or at least around 3 days before the end of January (taking into account the time needed to process monies from account to account, and the settlement of bonds) to liquidate sufficient positions in SP1’s portfolio to meet SCL’s redemption request.[note: 134]

126    The accused said that there was only a small window in the morning to trade. Further, the accused said that “(b)ecause [he] was due to attend a meeting, a very important board meeting, shareholders' meeting at 10.30, roughly about 10.30, so [he] tried to do what [he] could between 10 to 10.30”.[note: 135]

127    Further, as the MIE bonds are not exchange-traded securities,[note: 136] the accused said that there was no readily available price for them, unlike securities traded on the exchange where there are generally ready prices at each moment in time when the market is open.

128    As a result of his mass blast to the 11 counterparties to ask for pricing for the whole block of MIE bonds plus Indika bonds held in SP1’s portfolio, and from the sizeable drop in the bid prices from the incremental size based on Haitong’s bids, the accused said that this was evidence of the stress in the market. The accused said that his fears were if the bonds were sold in the market, there may be a market perception they were dumping the bonds.[note: 137] The accused claimed that it was at this time that he felt that the backup plan to passthrough the MIE bonds to SP5 should be activated. The accused said that he provided Haitong’s bids as the price context to Pareto sometime prior to 10:18 a.m.[note: 138]

129    In the meanwhile, the accused said that he remained hopeful of finding higher prices, as there was still time in his allocated trading window.[note: 139] He thus continued to check the various Bloomberg chat messages.

130    As regards the bid by Morgan Stanley, at 10:01:24 a.m., Ms Goyal had placed bids for the MIE bonds in a main chat between Morgan Stanley and OAIP (“Miehol 18 – 33; miehol 19 – 32;pass on INDYIJ”). However, the accused claimed that he had not seen the message at that time.[note: 140] He also said that he was in a rush because there were a lot of things happening.

131    Thereafter, apparently without having seen Morgan Stanley’s earlier message at 10:01 a.m. in the main chat, the accused responded to Ms Goyal in the one-on-one chat at 10:08 a.m. telling her he “need[ed] a bid for blkock [sic]”, “your best bid”, “pls use the main chjat [sic]”.[note: 141] According to the accused, he did this because he knew that there was a main chat, and his team (Mr Lai[note: 142] and Mr Koh) who were in that chat could assist to monitor it.[note: 143]

132    However, the accused subsequently admitted that in his chat messages with Morgan Stanley (P4), even though he had queried Ms Goyal about the bids that Ms Goyal made at 10:09:34 a.m., he did not ask if the bids were firm. Also, despite the fact that in the chat messages, she did not use the word “firm”, he inferred that they were in fact executable[note: 144] (but see [114] above).

133    The accused also stated that on 19 January 2016, when he sent out the mass blast, he wanted a price for all three bonds as a block. Except for a bid from BNP, which he claimed that he did not see, no one else (including Pareto) gave him a bid for the whole block of three bonds.[note: 145]

134    The accused claimed that he revised his strategy to sell the MIE bonds as a block when he posed the question to Ms Goyal at 10:15:21 – “MIEHOL 18s 2.5 [million], MIEHOL 19s 1.5 [million]”.[note: 146].He then said that he did not see the subsequent reply “yes" from Ms Goyal at 10:15:42 a.m.

135    At 10:18 a.m., Mr Reshad messaged the accused to say he was “[r]eady when you guys are”, signifying that he was ready to do the passthrough.[note: 147] At 10:19 am, the accused invited Mr Reshad into another Bloomberg chat conversation, and told him to “wait”. The accused said that he did this as he was still doing price discovery at that point in time and was not looking to trade yet.[note: 148] Interestingly, Mr Reshad said that he did not expect that the accused would initiate a separate chat, thinking that everything would be done on the group chat.[note: 149]

136    The accused also said that as late as 10:18:30 a.m., he still reached out to MUFJ whom he saw as “one of the potential buyers” and “pasted a message to MUFJ and check them if … they have any interest on the bonds”.[note: 150] At 10:22:19 a.m., MUFJ informed the accused they did not have firm bids and the accused said that he saw this message sometime after 10:23 a.m.[note: 151]

137    At 10:23:42 a.m., Ms Goyal messaged the accused with the following message: "Wei please refresh before trading". The accused claimed that he did not see this until sometime after 10.23 to 10.30 am.[note: 152] He agreed that while he did not see the word “yes” from Ms Goyal at 10:15:42, “…the word "yes" confirms the size and the bonds and, therefore, it's firm at 21:15:42”.[note: 153]

138    The accused emphasised that at all material times, Mr Patrick Koh, who shared the OAIP common Bloomberg account with Mr Lai, was in the main chatroom with Morgan Stanley.[note: 154]

139    The accused said that even at 10:29:38 a.m. when James Tadelis of SC Lowy responded, he was still doing price discovery for MIE and Indika.[note: 155]

140    In short, the accused’s testimony was that he was only aware of one firm, valid and executable bid for the MIE bonds and this was from Haitong. Given the poor market conditions, and the fear of a perception of dumping or ‘fire sale’ liquidation, this became the catalyst for the passthrough.[note: 156]

141    The accused said that he only decided to start the passthrough process at 10:30 a.m. when he reached out to Pareto. Before that, he had not decided to sell to SP5 instead of reaching to the market.[note: 157]

142    The accused said that there was no dispute that Pareto was involved as an intermediary in the passthrough. As, he (the accused) was aware of a possible conflict of interest, he sought to mitigate this by using an intermediary, i.e. Pareto, to ensure that the trades between SP1 and SP5 were fair. The accused said that when he gave Mr Reshad the price on behalf of SP5 at 10:30:47 a.m. by stating “MIEHOL 18, 2.5 at 25 and MIEHOL 19, 1.5”, he expected Mr Reshad to check that the price that he was offering was in line with the market.[note: 158]

143    The accused also said that he carried out the passthrough trades on 19 January 2016 because the market conditions on that day were really bad and if they were to undertake a sale to the market, there could be this perception of dumping and they were worried that people will perceive that they were in liquidation.[note: 159] The accused subsequently elaborated on this answer during a later part of cross-examination. He stated:[note: 160]

So in the morning of -- in January 19, when we went to the markets, the responses that we got was there was a general lack of liquidity. It seems like at that point of time that if we start selling things in pieces, people may perceive that we're dumping. The prices of this -- a lot of assets are much -- are very low.

So in the case of the MIEHOL bonds, sometime after we reached out to the markets and Haitong came back with a bid that was very low, so I felt that at that point of time we should do the passthrough so that generally we don't want to let people have a sense or perceive that we're in trouble.

So that's the reason why we activate the SP5 and only at that point of time we do the passthrough with this Pareto at around 10.30….

144    At 10:31:17 a.m., the accused asked Pareto (on behalf of SP1) for bids on the MIE bonds. At 10:37:27 a.m., Mr Reshad provided a bid by stating “24.875 for the 18s and 21.875 for the 19s – FIRM”.[note: 161] As this bid was lower than Haitong’s bid prices, the accused improved his bid for the MIE18 (on behalf of SP5 as the buyer) to $25.5 at 10:39:55 a.m., to ensure that the price would be higher than Haitong’s bid price.[note: 162] At 10:40:53 a.m., Mr Reshad correspondingly increased the bid to SP1 for the MIE18 to $25.375.[note: 163]

145    Arising from the exchange between Mr Reshad, and the accused (acting on behalf of SP1 as the seller, and also acting on behalf of SP5 as the buyer):

(a)     At 10:41:14 a.m., SP1 sold 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 to Pareto at a price of US$25.375 and US$21.875.

(b)     At 10:44:57 a.m. SP5 bought 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19 from Pareto at a price of US$25.50 and US$22.[note: 164]

146    Separately, the accused also said that he only realised that BNP made a bid for all three bonds as a block after MAS conducted its investigation, and not on 19 January 2016 itself. On that day, while Pamela Tsang of BNP rang the bell at 10:40:31 a.m., the accused only responded to her at 10:46:47 a.m.[note: 165]

147    Having set out in some detail both the Prosecution’s and Defence’s cases, and the main evidence of their witnesses, I now discuss the law on s 201(b) and the elements of the charge.

Section 201(b) of the SFA and elements of the charge

148    Having broadly outlined the parties’ respective cases, and the main evidence given by the material witnesses, I will now set out the law on s 201(b) and the elements of the two charges, before considering whether the charges have been proven beyond a reasonable doubt.

149    The accused was charged with committing two offences under s 201(b) of the SFA. This provision reads:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

150    As noted by the Defence[note: 166], s 201(b) encompasses four limbs:

(a)     an act which “operates” as a fraud (the “first limb”);

(b)     an act which is “likely to operate” as a fraud (the “second limb”);

(c)     an act which “operates” as a deception (the “third limb”); and

(d)     an act which is “likely to operate” as a deception (the “fourth limb”).

151    Both parties accepted that the broad legislative intent behind s 201(b) can be discerned from various cases and that these cases guide the interpretation of the elements of an offence under the second limb:

(a)      First, s 201 is a ““catch-all provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA”: Ng Geok Eng v Public Prosecutor [2007] 1 SLR(R) 913 (“Ng Geok Eng”) at [34].

(b)      Second, the enactment of the SFA as a whole “…is intended to achieve at the least the following ends: (a) protect investors; (b) protect public confidence in the market; and (c) ensure that the operation of the market is not distorted” Public Prosecutor v Ng Sae Kiat [2015] 5 SLR 167 (“Ng Sae Kiat”) at [58].

(c)      Third, s 201(b) of the SFA “penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities”: Ng Sae Kiat at [58].

152    The two charges against the accused involved the commission of offences under the second limb of s 201(b), as it was alleged that the accused had engaged in an act which is “likely to operate” as a fraud. Based on the relevant wording of s 201(b) and the respective charges, it was clear that the following elements need to be proven beyond a reasonable doubt:

(a)      First Element: That, the accused on 19 January 2016, in Singapore, directly in connection with the sale of securities, namely, the MIE bonds (MIE18 or MIE19) did engage in an act, to wit:

(i)        For the First Amended Charge: By selling 2.5 million notional value of MIE18 at US$25.375 when he knew that there was a bid for the said block of MIE18 bonds at or around US$33, and thereafter buying the said block of MIE18 bonds into SP5 managed by OAIP at a price of US$25.5, through Pareto: and

(ii)        For the Second Amended Charge: By selling 1.5 million notional value of MIE19 at US$21.875 when he knew that there was a bid for the said block of MIE19 bonds at or around US$32, and thereafter buying the said block of MIE19 bonds into SP5 managed by OAIP at a price of US$22, through Pareto.

(b)      Second Element: The acts (in the respective charges) were likely to operate as a fraud upon the investors of SP1.

153    I will now consider each element in turn.

The law on the First Element: Engaging in an act that was directly in connection with the sale of securities, namely, the MIE bonds

154    As regards the first element of the offence, this essentially deals with the actus reus of the offence as well as the nature of the accused’s act. In essence, this element concerned what the accused did on 19 January 2016, and that they were directly in connection with the sale of securities.

155    At this stage, without going too much into the evidence regarding this element, I will just broadly sketch out the components of this first element that have to be proven.

(a)     First, bonds, such as the MIE bonds, are included in the definition of “debenture” in s 2(1) and s 196A of the SFA (applicable on 19 January 2016). In turn, the definition of “securities” in s 196A(a) of the then SFA also includes “debentures. Hence, the MIE bonds were a form of securities that came within the scope of s 201(b).

(b)     Second, as for the meaning of “in connection with”, referred to in s 201(b), I accepted the arguments put forward by the Prosecution that:

(i)       The dictionary definition of “connection” is “causal or logical relation or sequence” or “contextual relation or association”.[note: 167] It is evident that the word “connection” carries a broad meaning, and that so long as the acts of the accused bore a relation to the eventual sale of the MIE18 and MIE19 bonds, they can be said to have been “in connection with” the sale of these securities within the meaning of the provision.

(ii)       The Prosecution also referred to case law from the United States of America (“US”) which provides useful guidance in interpreting s 201(b) of our SFA, as this provision was derived from legislation in the US.

(iii)       In this regard, our Parliament had made clear that the predecessor of the SFA, which was the Securities Industry Bill (“SIA”), was drafted with the principles guiding the regulation of securities in the US.[note: 168] It was thus no surprise that our s 102(b) SIA was worded in a similar way as the US Securities and Exchange Commission (“SEC”) Rule 10b-5 (“Rule 10b-5”), which was the provision that both the Prosecution and the Defence referred to in their submissions. The relevant portion of the SEC Rule 10b-5 is reproduced below with parts highlighted in bold to show the similarity of that provision with the equivalent SIA and SFA provisions. Rule 10b-5 reads:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or for the mails or of any facility of any national securities exchange…

(a)    To employ any device, scheme, or artifice to defraud;

(b)    To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c)     To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

[emphasis added]

(iv)       When the SFA was enacted in place of the SIA, section 201(b) of the SFA continued to be similarly worded to Rule 10b-5(c), with some minor variations. S 201(b) reads:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act , practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

(v)       As regards Rule 10b-5 itself, the seminal US Supreme Court decision in United States v O’Hagan, 521 U.S. 642 (1997) (“O’Hagan”), in dealing with Rule 10b-5, had construed the phrase “in connection with” broadly and found that the entrustment of the confidential information in the offender there, which the latter then used to trade, was done “in connection with” the sale of securities even though these two actions occurred at separate points in time. This was because the Court there decided that the “fiduciary’s fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities”.[note: 169]Accordingly, it appears that relevant information, acts and other context leading up to a fraudulent trade can be said to be done “in connection with” a fraudulent trade, so long as the fraud is consummated in that trade.

156    The Prosecution argued that since case law from the US demonstrates that “in connection with” should be interpreted widely in this manner, a similarly broad approach should be adopted in the interpretation of the words “in connection with” in s 201(b), such that the acts of the accused, leading up to the sale of MIE18 and MIE19 bonds, can similarly be said to be acts done in connection with the sale of securities.

157    I agreed with the broad analysis by the Prosecution of the first element of the offence, and its interpretation, in particular, on how the component “in connection with” should be interpreted.

The law on the Second Element: Act likely to operate as a fraud upon investors of SP1

158    Based on the wording of the second limb of s 201(b) (“act is likely to operate as a fraud upon anyone”), the second element that has to be established to make out the offence is proof that the act of the accused is likely to operate as a fraud upon investors of SP1.

159    Both the Prosecution and Defence took different positions as to the requirements to prove this element of the offence.

160    The Prosecution took the position that the following requirements were necessary to make out this aspect of the offence:[note: 170]

(a)     First Element: The accused engaged in the act of selling the MIE bonds from SP1 at the prices as set out in the amended charges and buying the same bonds into SP5 at the prices as set out in the amended charges through Pareto, and that such act was directly in connection with the sale of securities, namely the MIE18 and MIE19 bonds;

(b)     Second Element: The accused intentionally engaged in the said act; and

(c)     Third Element: By executing the said MIE18 and MIE19 trades while knowing of earlier higher bid prices, the said act was likely to operate as a fraud upon the investors of SP1.

161    As for the Defence, it essentially argued that:[note: 171]

(a)     The Prosecution must prove beyond reasonable doubt that:

(i)       there was deceitful, deceptive or dishonest conduct on the accused’s part, which was likely to operate as a fraud upon the investors of SP1; and

(ii)       there was an intention to operate fraud upon the investors of SP1.

(b)     s 201(b) is not a strict liability offence, and requires proof of intention; and

(c)     Breaches of fiduciary duty simpliciter do not and cannot amount to fraud, so as to attract criminal liability under s 201(b).

162    For purposes of analysis, I will break down the second element further into several component parts.

(1)    Sub-component: “ the act is likely to operate”

163    The conduct of the accused in effecting the sale of the MIE bonds by SP1, and the corresponding buying of the same bonds by SP5, all done via the passthrough effected through Pareto was not disputed, nor was it disputed that these actions were carried out by the accused at the time, and at the prices and in the manner decided by the accused.

164    As for the word “operate” which appears in the phrase “…engaged in any act…which is likely to operate…” in s 201(b), I accepted the position of the Prosecution, that this word can be taken to mean to “bring about or effect” or “to cause to function”, as defined in the Oxford English Dictionary. Clearly, the focus of the word “operate” is the effect of the act.

165    Next, while not explicitly stated in s 201(b), I also accepted the position of both parties that s 201(b) is not intended to create a strict liability offence. That said, while parties agreed that a mental element on the part of the accused was required for an offence to be made out, both parties disagreed as to the exact mens rea requirement(s) needed to be proven for the present charges. In essence:

(a)     The Prosecution took the position that a s 201(b) offence was made out where the accused intentionally engaged in the trades and knew that by these trades, he would cause loss to investors or financial gain to himself.[note: 172]

(b)     The Defence, on the other hand, argued that it must be shown that there was specific intention on the part of the accused.[note: 173] In this regard, notwithstanding that the charge was based on the second limb i.e. the “likely to operate as a fraud” limb, rather than the first limb i.e. the “operate as a fraud limb”, the Defence argued that there was still a need for the Prosecution to prove that there was an intention by the accused to commit fraud, for proof of specific intention on the part of the accused. Otherwise, the Defence argued, s 201(b) would amount to a strict liability offence. In this regard:

(i)       The Defence argued that it is contrary to the fundamental tenets of criminal law to adopt an objective approach. Further, citing, amongst others, several cases that have dealt with securities offences (albeit not offences under s 201(b) of the SFA) such as the decision of the Court of Appeal in Tan Chong Koay v Monetary Authority of Singapore [2011] 4 SLR 348 (“Tan Chong Koay (CA)”), and Shapy Khan s/o Sher Khan v Public Prosecutor [2003] 2 SLR(R) 433 (“Shapy Khan”), the Defence submitted that “this Court should not lightly imply that s 201(b) of the SFA was intended by Parliament to be a strict liability offence, i.e. not requiring specific intention on the part of an accused person for an offence to be made out”[note: 174]. Further, the Defence argued that criminal liability cannot be attached simply on the basis of knowledge or intention of doing the act.

(ii)       In addition, the Defence submitted that an objective interpretation of the phrase “likely to operate as a fraud” would render the phrase “operates as a fraud” in s 201(b) redundant since if an act actually operated as a fraud, it must perforce have been an act likely to do so, and it would, for all practical purposes, be easier to prove a breach of s 201(b) by relying on the “likely to operate as a fraud” limb.

(c)     The Defence also took issue with the Prosecution’s reliance on the comments of the High Court in Tan Chong Koay (HC) and on the decision of the Ontario Securities Commission (“OSC”) in In the Matter of Bradon Technologies Ltd., Joseph Compta, Ensign Corporate Communication Inc. and Timothy German 2015 ONSEC 26 (“Bradon”).

(i)       As regards the obiter views of the High Court in Tan Chong Koay (HC) which concerned the scope of the words “…likely to create a false or misleading appearance” as set out in the then section 197(1) of the SFA, the Defence pointed out that on appeal, Chan Sek Keong CJ (as he then was), delivering the judgment of the Court of Appeal in Tan Chong Koay (CA), affirmed the position that mens rea is presumed to be a necessary ingredient of any statutory provision that creates an offence. CJ Chan had stated that:

“[47   In the realm of criminal law, it is prima facie objectionable to penalise a person for doing a criminal act which he did not intend to do or did not know would be a criminal act. The criminal law punishes or penalises persons with guilty minds. If the law makes it an offence to do a negligent, rash or reckless act (which causes harm to the interests protected by criminal law, namely, life, liberty and property), it should say so expressly.”

…

“[51]  …It must be recognised that if s 197(1) proscribes the effects of an investor’s activities in the securities market without considering his intention or knowledge regarding those effects, there would be nothing he could do in advance to prevent himself from incurring liability, short of not trading at all. In other words, he would be trading at his peril. This is arguably not the policy intention of s 197(1).”

(ii)       As regards the Canadian case of Brandon, the Defence pointed out that this was not the decision of a judicial authority, and that in any event, it was decided based on provisions of Canadian law i.e. s 126.1(1) of Ontario’s Securities Act (“OSA”), which are evidentially and materially different from both s 201(b) of the SFA and the Rule 10b-5. Specifically, the Defence pointed out that the words “reasonably ought to know” in s 126.1(1) of the OSA provide for an objective assessment of whether a person perpetrates a fraud on any person or company, while such are words absent from both s 201(b) of the SFA and Rule 10b-5. Further, unlike the position under Ontario securities law (as noted by the OSC in Brandon), the Defence argued that there was no indication or evidence that our Parliament intended for s 201(b) to impose strict liability, or for it to water down the Prosecution’s burden of proof.

166    As a preliminary matter, I agreed that a blameworthy state of mind was needed to make out the offence i.e. that mens rea was required. As regards the respective propositions of parties, I agreed with the Prosecution that there need only be shown an intention by an offender to do the particular act, done with the knowledge that he would cause loss to investors or financial gain to himself. There is no further requirement to prove that the act was done by the offender with a specific intention to operate a fraud on any person. I elaborate below.

(a)     To begin, I accepted that the Prosecution’s position more clearly aligns with the plain reading of s 201(b) since the Prosecution was proceeding on the second limb of s 201(b) in which the accused was alleged to have “engage(d) in any act… which is likely to operate as a fraud …”, rather than the first limb of s 201(b) in which the accused was alleged to have “engage(d) in any act which operates as a fraud …”. Logically, the mens rea element that applies to the two limbs cannot be the same as it is trite that Parliament does not legislate in vain.

(b)     In enacting s 201(b) of the SFA Parliament had clearly distinguished the two limbs with the word “likely”, which was the sole word that differentiated the two limbs. This word does not even appear in the predecessor provision i.e. s 102(b) of the SIA. I accepted that Parliament was thus deliberately making a clear distinction in the mens rea requirements of the two limbs of s 201(b), in that while there is a requirement to prove the intention to commit fraud when proceeding on a charge of engaging in “an act that operates as a fraud” (i.e. first limb), proof of such an intention to commit fraud cannot also be required when proceeding against a person alleged to be engaging in “an act that is likely to operate as a fraud” (i.e. second limb). For the latter, I accepted that it is sufficient for the Prosecution to show that the accused intended to carry out the act and that the act is (objectively) likely to operate as a fraud.

(c)     I would add that in coming to the above conclusion, I agreed with the Prosecution that if one were to accept the Defence’s argument – effectively that the mens rea requirement when the charge is drafted under the “likely to operate as a fraud” limb is the same as the mens rea requirement when the charge is drafted under the “operate as a fraud” limb”, quite aside from making both limbs effectively one, this would also unduly limit the scope of s 201 as a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]).

(d)     Such an approach would also go against the general tenor of s 201(b) which seeks to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities: Ng Sae Kiat at [58]. Thus, the position put forward by the Prosecution was more in accord with Parliamentary intention, and the cases which have expounded on the objectives of s 201(b). This interpretation would also ensure that parties in the securities industry act with prudence to achieve stronger protection for investors.

167    Further, in arriving at the conclusion that the act must objectively be assessed to be likely to operate as a fraud, I also drew support from the dicta of the High Court in Tan Chong Koay (HC).

(a)     In that case, the Court had to consider the effect of the same word “likely” that appeared in the then s 197(1) of the SFA, under the “likely to create a false or misleading appearance” limb. In interpreting this word, the High Court at [93] had aligned itself with the views of an academic, Associate Professor (AP) Loke (Investors’ Protected Interest against Market Manipulation at 57–58):

It is certainly true that the statutory formulation admits of an objective test that permits conviction based on conduct that is likely to create a false or artificial market. None the less, the issue of whether a price is artificial cannot be solely determined by the new equilibrium brought about by one’s orders. There must be something wrongful about these orders that result in a false or artificial market. At best, the false or artificial market is linked to one’s motivations for giving the orders. The quality of the market – whether it is false or artificial – is often informed by one’s motivation.

(b)     I note from the above extract that while AP Loke took the view that the word “likely” connotes an objective test, he had also suggested that in assessing the scope of s 197(1) SFA, it was not enough to objectively look at the effect of the offender’s act (i.e. whether the false market was objectively likely to be created), there “.. must be something wrongful about these orders that result in a false or artificial market. At best, the false or artificial market is linked to one’s motivations for giving the orders”.

(c)     Applying the same logic and considerations to an offence proceeded with under the second limb (the “likely to operate limb”) of s 201(b), this would suggest that quite aside from proof that the act is objectively likely to operate as a fraud, it must be shown that there was something wrongful about the offender’s act, in that there must have been some ulterior or improper motivation involved on the part of the offender.

(d)     I would add that when the same case when on appeal, Chan CJ in Tan Chong Koay (CA) made several pertinent observations.

(i)       At [47], concerning s 197(1) of the SFA, Chan CJ stated that

…it is prima facie objectionable to penalise a person for doing a criminal act which he did not intend to do or did not know would be a criminal act. The criminal law punishes or penalises persons with guilty minds.

(ii)       Further, at [50], Chan CJ said that:

It must be recognised that if s 197(1) proscribes the effects of an investor’s activities in the securities market without considering his intention or knowledge regarding those effects, there would be nothing he could do in advance to prevent himself from incurring liability, short of not trading at all. In other words, he would be trading at his peril. This is arguably not the policy intention of s 197(1).

168    Moving on to s 201(b) offences drafted under the “likely to operate as a fraud” limb, I am of the view that the word “likely” should also be interpreted with the benefit of the observations made by Chan CJ in relation to 197(1). In other words, aside from proof that the offending act was done intentionally by an accused person, it must also be shown that he has intention or knowledge about the effects of his act. This approach also appears consistent with the views of AP Loke cited by the High Court above, where “the motivation” of the doer of the act is something that should be considered.

169    The Defence, however, argued that the true effect of the word “likely”, rather than suggesting an objective assessment of the effect of the accused’s act, was capable of alternative interpretations.

(a)     First, it could be interpreted as being intended to distinguish the second limb from the first limb of s 201(b) of the SFA in the sense that the Prosecution need not show that fraud has, as a matter of factual causation, been operated, so long as it was “likely” to have been operated. The Defence justified this position by referring to s 197(1) of the 2006 SFA concerning an act which “create[s]” or is “likely to create a false or misleading appearance”, where the learned authors of Securities Regulations in Singapore had opined that the third limb of s 197(1) of the 2006 SFA “appears more concerned with causation”.

(b)     The Defence also referred to s 199(b)(i) of the 2006 SFA concerning a statement or information that is “likely... to induce the sale or purchase of securities by other persons”, where the Court in Public Prosecutor v Wang Ziyi Able [2008] 2 SLR(R) 61 (“Wang Ziyi Able”) held at [63] that “To constitute an offence, it is not essential to show that someone was in fact induced to sell or buy securities; it is enough to show the potential to induce such an outcome. It also does not seem to be necessary to show that the statement concerned actually affected the market price of securities...” [emphasis added]

(c)     Finally, in reference to s 415 of the Penal Code, concerning an offence of cheating which requires an act or omission that “causes or is likely to cause damage or harm to any person in body, mind, reputation or property”, the Defence argued that the reference to the words “likely to cause damage or harm” means that there was no requirement to show “actual harm”: Tang You Liang Andruew v Public Prosecutor [2023] 3 SLR 229 at [29].

170    However, with due respect, I did not see the alternative suggestions of the Defence to be consistent with the interpretation of the word “likely” (as used in the second limb of s 201(b)) to be logical or consistent with the objectives of the SFA. Instead, interpreting “likely” in the manner suggested by the Prosecution would be more consistent with the intended wide scope of s 201(b) in serving to protect investors, the latter being one of the main objectives of the SFA. In this regard, an objective assessment simply requires an examination of the facts of the case to determine whether a reasonable person would regard the accused’s act as one which operates as a fraud upon the investors of SP1.

171    At this stage, I would like to also make a further observation about the word “likely” in the second limb of s 201(b). This is not a word that appears in either the US Rule 10b-5(c), or s 102(b) of our then SIA (the predecessor to our SFA). Specifically, the wording of s 201(b) of the SFA makes it clear that what is prohibited under the second limb is “…any act, practice or course of business which….is likely to operate as a fraud”. In contrast, both Rule10b-5(c) and s 102(b) SIA[note: 175] make unlawful any act, practice, or course of business which “would operate as a fraud”.

172    It could thus be argued that considering the difference in wording between s 201(b) of the SFA on the one hand, and Rule10b-5(c) and s 102(b) of the SIA on the other, the word “likely” used in s 201(b) suggests a lower degree of certainty than the more definitive word “would” used in Rule10b-5(c) and s 102(b) of the SIA. Thus, in the case of s 201(b), it would suffice for a reasonable person to objectively assess that fraud is a likely consequence, rather than for proof that fraud would be caused in the case of Rule10b-5(c) and s 102(b) of the SIA. Be that as it may, parties did not provide submissions on this point, and for present purposes, I will not comment further save to say that the provisions are not identical and hence, any reliance on caselaw which interpreted Rule 10b-5(c) and/or s 102(b) of the SIA should be done with some caution and awareness of this distinction in wording between those provisions and s 201(b) of the SFA. This also meant that the Singapore case law dealing with the SFA – which emphasised the objectives of the SFA, and importantly the intended wide-ranging scope of s 201(b) of the SFA – should be more critical in construing how the second limb should be interpreted and applied (see [176(b)] below).

173    There were also other reasons why the interpretation and requirements set out in US authorities dealing with SEC Rule10b-5(c) have to be considered with circumspection, bearing in mind the objectives of our SFA and the difference in wording. I will deal with these issues in greater detail when I explore the US cases dealing with fraud at a later part of these GD.

(2)    Sub-component 2: “ as a fraud” in s 201(b)

174    As regards the word “fraud” referred to in s 201(b), this word is not defined in the SFA.

175    As such, both parties looked at legislative provisions and caselaw from Singapore and from other jurisdictions to argue the scope and meaning of fraud in s 201(b). I discuss the main points brought out by the parties below.

(A)   Scope of fraud in case law and legislation

(I)   SINGAPORE LAW

176    In the context of s 201(b), the Prosecution submitted that fraud should be construed broadly as s 201(b) is a catch-all provision. Specifically, in the context of Singapore law, the Prosecution highlighted the following:

(a)     “fraud” in s 201(b) cannot be synonymous with “deception” or “deceit”, given that s 201 lists “fraud” and “deception” disjunctively, and it is trite that Parliament shuns tautology and does not legislate in vain. Accordingly, “fraud” must have a distinct meaning from “deception. Further, contrary to the position put forward by the Defence, s 201(b) cannot be confined to deception, since such an interpretation would unduly restrict s 201(b) in a way where it fails to protect investors. Instead, s 201(b) must be broad enough so as to punish errant and harmful conduct effectively, particularly in the context of the securities industry where parties, such as fund managers, are entrusted with monies from investors. Such fund managers can intentionally enrich themselves at the expense of the investors when dealing with the latter’s monies, without actually practising deception on the investors.

(b)     The Prosecution put forward other reasons why “fraud” must be construed broadly in the context of s 201(b):

(i)       First, the SFA was drafted specifically to protect investors, and s 201 is a “catch-all” provision that covers all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA (see PP v Cheong Hock Lai and other appeals [2004] 3 SLR(R) 203 (“Cheong Hock Lai”)

(ii)       Section 201(b) is broadly worded and penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities - Ng Sae Kiat at [58]. Further, the SFA as a whole, is intended to punish and deter market misconduct: Cheong Hock Lai at [23].

(iii)       An offence under s 201(b) must also be necessarily amorphous so that it can fully protect investors by being “capable of incorporating a myriad of illegitimate trading practices” and “[covering] all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA”.[note: 176]

(iv)       To protect investors, the provision must be construed broadly enough to capture the breach of one’s duty, knowing that it would cause loss to investors or financial gain to oneself. This is particularly so when one considers that the enactment of the SFA as a whole was intended to: (a) protect investors; (b) protect public confidence in the market; and (c) ensure that the operation of the market is not distorted: Ng Sae Kiat at [58].

(c)     The Prosecution also argued that while fraud has not been defined in the SFA, reference to other legislation may be useful to consider the scope of how this word should be construed in the SFA.

(i)       First, s 25 of the Penal Code 1871 (“PC”), defines “fraudulently” as doing an act with intent to deceive another person and by means of such deception, that an advantage should accrue, or a detriment shall befall another, However, s 6A of the PC expressly excludes this definition from applying to any other written law beyond the PC. Section 6A reads:

6A. Every definition of a word or expression which is explained in sections 22A to 26H (except the definitions of “dishonestly” and “fraudulently” in sections 24 and 25, respectively) applies to any offence in this Code or in any other written law unless that written law expressly provides for a definition or explanation of that same word or expression.

[emphasis added]

(ii)       The Prosecution also emphasised that the context of “fraudulently”/fraud used in the PC is also different, given that the SFA is aimed at protecting investors in the securities market.

177    In addition, the Prosecution referred to a local case under s 201(b) of the SFA, PP v Loo Kiah Heng & another [2010] SGDC 434 (“Loo Kiah Heng”).

178    In this case, the offenders (“Soh” and “Loo”) pleaded guilty to four proceeded charges under s 201(b). Soh was a fund manager who had conspired with Loo to operate a fraud on Soh’s investment firm. This conspiracy involved Soh buying securities from Loo at a price above that in the prevailing market and selling securities to Loo at a price below that in the prevailing market. This arrangement allowed Loo to profit from the difference between the price at which Soh sold the securities to him and the prevailing market price. As it was a “Plead Guilty” case, the Court there did not go into depth as to the meaning of fraud within s 201(b). Nevertheless, the Court accepted that on these facts, the offenders’ acts operated as fraud on Soh’s investment firm.

179    The Prosecution argued that the facts of Loo Kiah Heng are analogous to the present case, where the accused had sold the MIE bonds at lower prices from SP1 to SP5, knowing that it would thereby cause loss to SP1 investors and benefit himself (as the clear and overwhelming majority shareholder of SP5).

180    On its end, the Defence argued that:

(a)     Fraud requires not just an intent to deceive, but also proof that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception, and that “fraud” requires an element of dishonesty, moral blame, culpability or lack of probity.[note: 177]

(b)     While the term “fraud” is not defined in the SFA, the legislation and the case law demonstrate that there must be shown some illegitimate or deceptive conduct and that a mere breach of fiduciary duty (even if proven), cannot and does not automatically lead to a finding of fraudulent behaviour.

(c)     Referring specifically to section 25 of the PC, which defines the term “fraudulently”[note: 178], the Defence submitted that a “fraud” within the meaning of the PC requires not just an intent to deceive another, but also that such deception would result in an advantage accruing to the accused, or a disadvantage accruing on someone else, by such means of deception. The Defence further argued that contrary to the position taken by the Prosecution, s 6A of the PC does not preclude reference to s 25 as it is a permissive provision. Instead, it may be presumed that Parliament intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection (citing Alrich Development Pte Ltd v Rafiq Jumabhoy [1995] 2 SLR(R) 340 (“Alrich Development”), and submitted that fraud under the SFA requires not just an intent to deceive, but also that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception.

181    The Defence also responded to an example cited by the Prosecution.

(a)     The Prosecution had stated[note: 179]

To illustrate with a simple example, if an investor entrusted $100,000 to a fund manager and the fund manager intentionally purchased a security at ten times above market price (for the purposes of this example, assume the market price is $10,000) from himself, no deception would be involved. However, the conduct of the fund manager is evidently an abuse of his position, to harm the investor and at the same time, benefit himself. In effect, the fund manager would have conferred $90,000 in profit to himself, at the direct expense of his investor. As an example, this must be conduct that s 201(b) SFA is capable of prohibiting, in order to protect investors. Given the nature and practice of certain sectors of the securities industry (where parties are entrusted with monies from investors), it is critical that s 201(b) SFA not be confined merely to deception, and instead be broad enough to punish errant and harmful conduct effectively.

(b)     In the view of the Defence, deceit is inbuilt in the example cited by the Prosecution[note: 180]. I reproduce the Defence’s argument below:

[39]   According to the Prosecution, fraud cannot require an element of deception, because s 201(b) would apparently otherwise be rendered “toothless”. The Prosecution gives the following fallacious example in support of its submission:

“…if an investor entrusted $100,000 to a fund manager and the fund manager intentionally purchased a security at ten times above market price (for the purposes of this example, assume the market price is $10,000) from himself, no deception would be involved.

However, the conduct of the fund manager is evidently an abuse of his position, to harm the investor and at the same time, benefit himself. In effect, the fund manager would have conferred $90,000 in profit to himself, at the direct expense of his investor.”

[40]   The Prosecution’s example above is wholly misconceived, as deceit is inbuilt into that scenario. A fund manager who intentionally purchases a security at above market price clearly deceives the investor, because the investor in this situation would not know that the security has been purchased at above market value. It is also inherent in the example above that the fund manager acted dishonestly and intended to cause loss or confer a benefit on himself. Hence, the elements of deceit and/or dishonesty are established in the Prosecution’s example.

(c)     The Defence also cited the Magistrate’s Court’s decision in Ong First Pte Ltd v Yap Poon Kwang [2005] SGMC 31 (“Ong First”) which considered the predecessor provision of s 201(b) of the SFA, i.e. s 210(b) of the Securities and Futures Act (2002 Rev Ed) (“2002 SFA”). In Ong First, the Court held at [28] that s 210 of the 2002 SFA was “couched in a language which is premised on a fraudulent act or omission. There must be deception, deceit or dishonesty involved” [emphasis added].

182    Further, while the Defence agreed with the Prosecution that “fraud” must have a distinct meaning from “deception”, the Defence argued that “fraud” must mean something more than what “deception” entails. Drawing on the definition of “fraudulently” in s 25 of the PC, the Defence argued that fraud requires not just an intent to deceive, but also that such deception would result in an advantage accruing to the accused or a disadvantage accruing to someone else by such deception,

183    The Defence additionally submitted that for an offence to be proven under the second limb of s 201(b), deception, deceit or dishonesty must be involved, citing amongst other things, US cases dealing with Rule 10b-5(c). I will deal with the US cases in a later part of my GD.

184    At this stage, having considered the parties’ submissions on Singapore law, I make several observations about the meaning of “fraud” in the SFA.

185     First, in the context of s 201(b), there is an obvious distinction between “fraud” and “deception” as can be seen from the wording of section 201(b) which makes clear that these concepts are different and mutually exclusive:

201 - No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)    engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

[emphasis added]

186    Thus, I agreed with the Prosecution “fraud” cannot be synonymous with “deception” (or the similar noun “deceit”), given that s 201 lists “fraud” and “deception” disjunctively, as Parliament shuns tautology and does not legislate in vain (citing Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [38]). Accordingly, “fraud” must have a distinct meaning from “deception” (and “deceit”). Thus, requiring additional proof of deception or deceit – in the context of a charge framed under either of the “fraud” limbs (rather than a charge framed under either of the “deception” limbs of s 201(b)) would run counter to the plain wording of the SFA.

187    As for the Defence’s suggestion that for an offence to be proven under either of the “fraud” limbs of s 201(b), there must be deception, deceit or dishonesty involved, with respect, I do not agree with the Defence.

(a)     For one, it makes no sense for a charge under either of the fraud limbs in section 201(b) to require additional proof of deception/deceit, as there are already two separate limbs in s 201(b) specifying the requirement for deception. If deception/deceit is already a requirement to be proven when the charge is drafted under either of the deception limbs, rather than under either of the fraud limbs, a charge drafted under either of the fraud limbs should not require deception to be proven, since conceivably all charges would otherwise simply be drafted under either of the “deception limbs” instead of under the “fraud limbs”, as the former would presumably require fewer elements to be proven.

(b)     As for the Defence’s suggestion that there was an alternative requirement for proof of dishonesty as a component of fraud under s 201(b) of the SFA, such a “requirement” was not set out in any of the cases cited by the Defence, with the possible exception of Ong First. In this regard, it a more careful perusal of Ong First was necessary to better understand the reasoning applied in that case, and to determine if it was of relevance to our present case.

188    It would be recalled in Ong First, the Magistrate’s Court had considered the predecessor provision of s 201(b) of the SFA, i.e. s 210(b) of the 2002 SFA and held at [28] that for an offence under that provision to be made out, “there must be deception, deceit or dishonesty involved”.

(a)     However, it should be noted that being a Magistrate’s Court’s decision, and one involving a civil matter (MC Suit 1507/2003) at that, Ong First was not binding on a District Court exercising original criminal jurisdiction, in determining the meaning of fraud within s 201 of the SFA.

(b)     Further, as noted at [28] of that case, the defendant in Ong First alleged a breach of s 210 of the 2002 SFA based on the Plaintiff’s concealment of material facts so as to induce the Defendant to trade and continue trading excessively. While the fact scenario presented in Ong First could arguably reflect deception, deceit or dishonesty on the facts, whether this definitively means that any of these concepts are essential requirements of a of s 210 offence was not established. In other words, while there may have been actual deception, deceit or dishonesty on the facts of a case involving a s 201(b) offence, whether any of these constitute essential elements of the offence is a different thing altogether.

(c)     In addition, the brief pronouncement by the Magistrate’s Court in Ong First at [28] was not explained nor elaborated on in the actual judgment. Neither was it backed by any interpretation, reasoning, or precedent. In addition, it was not shown that this one-line pronouncement in this 2005 decision has since been followed or adopted in any subsequent case dealing with s 210 of the 2002 SFA, let alone any case dealing with the present s 201(b) of the SFA, which is the provision that we are concerned with.

(d)     In short, I did not find the pronouncement in Ong First to be particularly helpful, let alone binding, on this Court.

189    Further, as pointed out by the Prosecution, the current SFA makes a distinction between dishonesty and fraud, as these concepts are referred to disjunctively in numerous sections.[note: 181] In addition, I note that s 201 is intended to be a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]) Thus, clearly s 201 should not subsume offences that are already dealt with under “dishonesty” provisions in the SFA, nor should “fraud” and “dishonesty” in s 201 overlap.

190    Finally, to round off this point, in so far as the Defence urged me to rely on principles set out in US cases, especially the requirement of “scienter” (i.e. a mental state embracing intent to deceive, manipulate or defraud)[note: 182], for reasons that I will expand on later when I consider US cases commenting on Rule 10b-5, I did not agree with the Defence’s approach.

191     Second, I accepted that the word “fraud” must be given an expansive meaning in the context of s 201(b).

(a)     In this regard, I note that both parties accepted that the SFA was drafted specifically to protect investors, and s 201 is a “catch-all” provision that covers all forms of securities fraud that have not been otherwise dealt with in other sections of the SFA. As noted in Ng Sae Kiat at [58], s 201(b) “…is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities”

(b)     I thus accepted the proposition put forward by the Prosecution that in the context of the securities industry, the “likely to operate as a fraud” limb of s 201(b) should be construed broadly enough to capture a situation involving a breach of one’s duty with the knowledge that this would cause loss to investors or financial gain to oneself. Given the nature and practice of the securities industry, where parties such as portfolio managers are entrusted with monies from investors, s 201(b) should not be solely confined to acts of deception directly practised by portfolio managers (which could already amount to cheating under the Penal Code). Instead, this limb should be broad enough to punish conduct involving a breach of duty intentionally carried out with the knowledge that it would cause loss to investors or financial gain to oneself.

192    As for the Defence’s suggestion (see [180(c)] above) of adopting the definition of “fraudulently” in s 25 of the PC, as requiring proof of intent to deceive, and proof that such deception would result in an advantage accruing to the accused, or a disadvantage accruing on someone else by such means of deception, when interpreting the meaning of “fraud” in s 201(b) of the SFA, I respectfully disagree that this is the correct approach.

(a)      First, quite aside from the fact that s 201(b) makes clear the distinction between the concepts of “fraud” and “deception” as discussed above, I note that the PC itself, in the form of s 6A, specifically makes clear that the definition of “fraudulently” in the PC does not apply to other written laws.

(b)     In this regard, I agreed with the Prosecution that the case of Alrich Development, cited by the Defence to support its argument that in the absence of any context indicating a contrary intention it may be presumed that Parliament intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection, was ultimately an unhelpful case. Instead, section 6A of the PC evidences a contrary intention for the PC Code definition of “fraudulently” to be applied to laws other than the PC (see [176(c)] above).

(c)     Further, it should also be noted that in Alrich Development at [54], the Court had stated “Whether it is permissible in the interpretation of the RPA to refer to the Companies Act for the purpose of ascertaining the meaning of the word “director” depends on whether the word “director” is used in the same sense in the two statutes.” (emphasis added). In the present case, there was nothing to suggest any intention for the meaning of “fraudulently” in the PC to be “used in the same sense” as “fraud” in s 201(b) of the SFA. This was especially so given that the latter is a catch-all provision, and fraud should conceivably be given a more expansive interpretation than “fraudulently” has been given in the PC.

193    That said, while the PC definition of “fraudulently” should not limit the meaning of “fraud” in the SFA due to the operation of s 6A of the PC, I was of the view that how “fraud” is construed in the Companies Act 1967, which was a statute which does not contain a similar “limiting provision” as s 6A of the PC, that may be more useful to interpret the meaning of “fraud” in s 201(b), in line with the scope of the SFA.

(a)     In this regard, the Prosecution pointed out[note: 183] that in interpreting s 340 of the Companies Act, a provision which deals with fraudulent trading, the High Court in Phang Wah and others v Public Prosecutor [2012] 1 SLR 646 (“Phang Wah”) had construed the words “fraudulent purpose” in the Companies Act broadly to connote an intention to go “beyond the bounds of what ordinary decent people engaged in business would regard as honest”, or involving “according to the current notions of fair trading among commercial men, real moral blame”. This approach was endorsed by Vincent Hoong J in How Soo Feng v PP Prosecutor and another appeal [2023] SGHC 252 (“How Soo Feng”).

(b)     While the above cases in (a) dealt with the Companies Act, I agreed with the Prosecution that they also illustrate the general approach taken towards the concept of fraud (and its variants such as “fraudulent purpose”) and show that Courts are prepared to ascribe a wide meaning to such concepts.

(c)     I further agreed that this same approach adopted to the interpretation of “fraudulent purpose” in the Companies should similarly apply to the interpretation of “fraud” in s 201(b) bearing in mind again that 201(b) of the SFA “…is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities” (Ng Sae Kiat at [58]).

194    All in all, I was of the view that based on the Singapore authorities discussed above, for a charge that is framed under the “…likely to operate as a fraud” limb of s 201(b), it was not a requirement that there needs to be proof of deceitful, deceptive or dishonest conduct on the accused’s part as suggested by the Defence. Instead, fraud must necessarily be construed more broadly, in line with the objective of s 201(b).

195    That said, where elements of deceitful, deceptive or dishonest conduct on the part of the accused are present, it can be more readily construed that the acts are “likely to operate as a fraud”. This is consistent with the decision cited by the Prosecution of Loo Kiah Heng (see [177] above]. Even though that was a Plead Guilty case, which did not explicitly consider this issue, I accepted that the facts of the case were sufficiently analogous to those in the present case.

(a)     It would be recalled that in Loo Kiah Heng, Soh, the fund manager who conspired with Loo, had operated a fraud on Soh’s investment firm by buying securities from Loo at a price above that in the prevailing market and selling securities to Loo at a price below that in the prevailing market. The trades were thus to the disadvantage of Soh’s investment firm, and correspondingly were to Loo’s advantage and allowed the latter to make “contra” profits.

(b)     The Defence argued that the facts of Loo Kiah Heng were different from that of the present case[note: 184], highlighting that (a) the conduct of the offenders took place over a period of 20 months, whereas the present case concerns a one-off instance of a sale of bonds; (b) Loo was the counterparty to the married trade who benefited through actual, tangible, intra-day contra profits from the difference between the married trade price and the market price, while in this case, SP5 only fortuitously benefitted some months later; (c) the profits were earned by Loo personally and Loo alone, while in the accused’s case, any profits at the end of the day were earnt by SP5, which had other investors apart from the accused; (d) there was no indication in Loo Kiah Heng that the price of the married trade was determined with regard to any points of reference, e.g., actual firm, valid and executable bids received; (e) the decision to conduct a passthrough was not one taken by the accused alone, and various other key persons were involved but had not flagged any issues or concerns; and (f) there was no evidence of any deliberate and covert attempt to coverup or to otherwise conceal the passthrough from other parties, unlike in Loo Kiah Heng, and the accused here did not act in a deceptive, deceitful, or dishonest manner.

196    While I will be elaborating on the accused’s behaviour at a later part of these GD when considering whether the offence under s 201(b) was made out under the “likely to operate as a fraud” limb, I would only say at this stage that I did not agree with the Defence that the facts of Loo Kiah Heng and that of the current case are materially different. In this regard, it was clear that:

(a)     Even a one-off sale of bonds, as occurred in the present case, if done in breach of s 201(b) would still constitute an offence;

(b)     If the accused had sold the MIE bonds via the passthrough trades to SP5 at a lower price than was made available to SP1 on 19 January 2016, the SP1 investors would have suffered a loss, and SP5 investors (in particular the accused who held overwhelming shares in SP5) would have made a gain;

(c)     The fact that other investors of SP5 also benefitted from the accused’s actions would not change the fact that the accused (as an investor owning, directly or indirectly, 99% of SP5 on 19 January 2016 (see [520] below) gained overwhelmingly from carrying out the passthrough transaction;

(d)     That while the accused may have used Haitong’s bid prices for the purposes of the passthrough trades, there were clearly higher prices available on the day when he could have sold the MIE bonds at, most notably, at the Morgan Stanley bid prices which he was clearly aware of. In any event, even at the time he finally carried out the sale of the MIE bonds from SP1 via the passthrough trade to Pareto, and then pass through these bonds to SP5, there were higher bids from BNP, and from SC Lowy (for the MIE19 bonds), and he could have sold the bonds to these counterparties, or used these bids to conduct the passthrough trades;

(e)     It was the accused’s decision, and his decision alone, to decide when to sell the MIE bonds, who to sell them to, and also the price that they were to be sold. It was also his decision alone to buy the same bonds for SP5 at the time and prices that he bought them. The accused carried out these decisions in his capacity as a portfolio manager of SP1 (and SP5) knowing that they were to the detriment of the SP1 investors, and to the benefit of himself; and

(f)     There was also evidence suggestive of active concealment of the actions of the accused on 19 January 2016. At the same time, there was no evidence of active and voluntary disclosure of the circumstances of the transactions to SP1 investors. In fact, even if the accused had agreed to voluntarily disclose trade logs to the SP1 investors about the sale of the MIE bonds, these logs would not have included (1) information on the significantly higher competing bids that were made available to him that morning for the MIE bonds; (2) the fact that it was SP5 that bought the bonds (through the passthrough trades), or (3) that the accused himself was the overwhelming majority shareholder of SP5 at the material time of the passthrough trades.

197    I will elaborate on the matters in [196] in greater detail at a later part of my GD. Suffice it to say, contrary to the claims of the Defence, the facts of the present case bore many similarities with the facts in Loo Kiah Heng. I should also add that the limb that was proceeded with in Loo Kiah Heng was the “operate as fraud limb”, as opposed to the “likely to operate as a fraud limb”. The requirements to prove an offence under the latter limb are clearly less stringent than those to prove an offence under the former limb, for the reasons already discussed.

198    Separately, both parties also considered that reference should be made to US provisions that were analogous to section 201(b) of the SFA, although the parties differed as to which provisions I should look at, and the significance, and application of the US cases that interpreted those provisions. I shall deal with these issues in the next part of my GD.

(II)   US LAW AND LIMITATIONS ON APPLICATION TO S 201(B)

199    Both parties made extensive reference to Rule 10b-5(c), although not for the same purpose. Rule 10b-5 as a whole reads:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or for the mails or of any facility of any national securities exchange…

(a)    To employ any device, scheme, or artifice to defraud,

(b)    To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c)     To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

[emphasis added]

200    As stated earlier, Rule 10-5(c) bears similarity with our s 201(b). One of the major issues that parties disagreed with was whether this meant that the requirement of “scienter” in US securities law similarly applies to an offence under s 201(b).[note: 185]

Scienter is not a requirement for s 201(b) of our SFA

201    The Defence argued that US authorities dealing with Rule 10b-5(c) and more importantly, those dealing with section 10b of the US SEA, have indicated that the word “manipulative”, which appears in s 10b of the SEA but not in Rule 10b-5, “connotes intentional or wilful conduct designed to deceive or defraud investors…” (citing the US Supreme Court decision of Ernst & Ernst & Hochfelder 425 U.S. 185 (1976) (“Hochfelder”) at [199]). The Court there added at [202] that “(t)there is no indication, however, that s 10(b) of the SEA was intended to proscribe conduct not involving scienter.”

202    The Defence stated [note: 186] that as regards the requirement of scienter, the US Supreme Court in Aaron v SEC 446 U.S. 680 (1980) (“Aaron”) had concluded at 694 that “scienter is a necessary element of a violation of s 10(b) and Rule 10b-5” primarily on the basis that:

(a)     The language of s 10(b) of SEA – particularly the terms “manipulative”, “device”, “contrivance” – clearly refers to “knowing or intentional misconduct” (at 694); and

(b)     The legislative history of s 10(b) of the SEA contained no indication that the provision was intended to proscribe conduct not involving scienter (at 690).

203    In essence, the position of the Defence was that “the rationales that the US courts have put forward, even acknowledging the differences in language should, in our submission, lead to a conclusion by this Court that Section 201 of the SFA does require the kind of dishonest, morally blameworthy state of mind in order to prove fraud.”[note: 187]

204    However, having carefully considered and compared US legislation to our own SFA, and also having considered how the US authorities have interpreted the requirement of scienter in the context of US law, I disagree with the Defence that scienter is a requirement that has to be proven for an offence under the second limb of s 201(b) to be made out. Instead, I agreed with the Prosecution that there was no scienter requirement to limit the scope of s 201(b). I elaborate below.

A)    The scope of the US Rule 10b-5 is determined and constrained by the US SEA, and no such constrain applies to s 201(b) of our SFA

205    I will first deal with the fact that the statutory context of the US Rule 10b-5 differs from that of our s 201(b). In this regard, as noted in various US authorities, Rule 10b-5 was enacted under s 10b of the SEA, which is its parent provision. S 10b of the SEA reads:

It shall be unlawful for any person, directly or indirectly, …. To use or employ, in connection with the purchase or sale of any … security … any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

[emphasis added]

206    In line with the Prosecution’s submissions,[note: 188] the US Courts in Aaron, Tagliaferri, and other US cases, have made it clear that the mental state required for an offence to be made out under Rule 10b-5, is based on (and limited by), the context and language of s 10(b) SEA.

207    In Aaron, the US Supreme Court at pp. 6 and 8 specifically noted that s 10(b) of the SEA (which is the parent provision of Rule 10-5) was enacted to capture “knowing or intentional misconduct” for two reasons.

(a)     First, s 10(b) SEA uses the words “manipulative”, “device” and “contrivance” which indicate that the acts must have been done knowingly or intentionally.

(b)     Second, the legislative history of s 10(b) SEA makes it clear that Congress did not intend to punish merely negligent conduct, because whenever Congress intended that, it would expressly subject such actions to significant procedural restraints that were absent in s 10(b) SEA.

208    The Court went on to state that as Rule 10b-5 was enacted under s 10(b) SEA, Rule 10b-5 was “limited by the ambit of its statutory authority” and accordingly required the same scienter requirement. The Prosecution thus submitted that clearly, this interpretation of s 10(b) of the SEA directly informed the US Courts’ view on the scope of Rule 10b-5.[note: 189]

209    Similarly in Santa Fe Industries, Inc. v Green 430 U.S. 462 (1977) (“Santa Fe”), at p 1300, the US Supreme Court, citing Ernst & Ernst stated that

…the language of the statute must control the interpretation of the Rule: “Rule 10b-5 was adopted pursuant to authority granted the [Securities and Exchange] Commission under § 10(b). The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is “the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.”… [The scope of the Rule] cannot exceed the power granted the Commission by Congress under § 10(b).”

[emphasis added]

210    However, as the Prosecution rightly pointed out, there is no equivalent of section 10(b) of the US SEA in our SFA. This renders Aaron and other US cases - which had set out the scienter requirement - of limited utility given that the main basis for the Court’s position on scienter as a requirement for Rule 10b-5 was due to s 10(b) of the SEA, which the US Courts has made explicitly clear controls the interpretation of Rule 10b-5. Thus, as there is no provision equivalent to s 10(b) SEA in our SFA, our s 201(b) should not be similarly limited by the language or requirements of s 10(b) SEA.

211    Separately, the Prosecution also pointed[note: 190] out that the US Supreme Court had in O’Hagan made clear at pp 665 and 666 that the scienter requirement (that Rule 10b-5 be “wilfully” violated, and the offender has to have knowledge of the Rule which he breached) was rooted in the punishment provision, s 32(a) of the US SEA. This provision reads:

Any person who wilfully violates any provision of this title (other than section 30A), or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this title, or any person who wilfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this title or any rule or regulation thereunder or undertaking contained in a registration statement as provided in subsection (d) of section 15 of this title, or by any self-regulatory organization in connection with an application for membership or participation therein or to become associated with a member thereof, which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both, except that when such person is a person other than a natural person, a fine not exceeding $25,000,000 may be imposed; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.”

[emphasis added]

212    However, again the US law on this issue is at variance with Singapore law since s 32(a) of the US SEA differs from our s 204(1) of the SFA, the latter being the offence creating and punishment provision for s 201(b). Specifically, unlike the US provision, our s 204(1) SFA does not require the contravention to be done “wilfully”. Section 204(1) reads:

Any person who contravenes any of the provisions of this Division shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 7 years or to both.”

[emphasis added]

213    Thus, in short, since our SFA is not constrained in the same manner as the US SEA, the scienter requirement that the US courts have insisted in the application of Rule 10b-5 cannot simply be imported into s 201(b).

214    I agreed with the Prosecution’s submissions. In so far as the US courts have insisted on the scienter requirement in the context of Rule 10-5b, this was clearly a consequence of US provisions in the SEA. Since these provisions, essentially s 10(b) of the SEA, and s 32(a) of the SEA, have no equivalent in Singapore law, we should not blindly import the requirement of proof of scienter when determining whether an offence under s 201(b) is made out.

B)    Interpretation of S 17(a) of the US Securities Act supports the position that no scienter requirement applies to s 201(b)

215    Further, the Prosecution pointed out that at pp 696 and 697 of Aaron, the US Supreme Court had discussed s 17(a) of the US Securities Act of 1933 (“US SA”), and argued that the Court’s comments on this provision are useful and relevant, as s 17(a)(3) of the US SA has similarities with s 201(b) of our SFA. This provision relates to “Fraudulent Interstate Transactions”, and it reads:

It shall be unlawful for any person in the offer or sale of any securities … by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly –

(1)    to employ any device, scheme, or artifice to defraud, or

(2)    to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstance under which they were made, not misleading; or

(3)     to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.

[emphasis added]

216    At pages 695 to 697 of Aaron, the Court added:

[2C]  The language of § 17(a) strongly suggests that Congress contemplated a scienter requirement under §17(a)(1), but not under §17(a)(2) or §17(a)(3). The language of §17(a)(1) … plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term “defraud” is ambiguous, given its varied meanings at law and in equity, the terms “device”, “scheme”, and “artifice” all connote knowing or intentional practices ... Indeed, the term “device”, which also appears in §10(b) [of the SEA] embraces a scienter requirement.

…

[4C] Finally, the language of § 17(a)(3), under which it is unlawful for any person “to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit” … quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206(2) of the Investment Advisers Act of 1940 a meaning that does not require a “showing [of] deliberate dishonesty as a condition precedent to protecting investors”.

It is our view, in sum, that the language of § 17(a) requires scienter under §17(a)(1), but not under §17(a)(2) or §17(a)(3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17(a), the language of the section is simply not amenable to such an interpretation… Indeed, since Congress drafted § 17(a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what is so plainly seems to say.

[emphasis added]

217    The Prosecution argued that while the US Rule 10b-5 was circumscribed by section 10(b) of the US SEA, the same was not the case for 17(a)(3) of the US SA. Nor should our own s 201(b) be circumstanced. Instead, the comments of the Court in Aaron on s 17(a)(3) US SA, would apply to our s 201(b), and make clear that based on the plain wording of these provisions, there is no need to show deliberate dishonesty before they apply to protect investors.

218    I agreed with the arguments put forward by the Prosecution. In short, quite aside from the fact that our s 201(b) was not constrained by wording contained in s 10(b) of the US SEA, the analysis of the Court in Aaron, regarding s 17(a)(3) US SA serves further to reinforce the position that we should not impose a scienter requirement into s 201(b) when there was clearly no legislative basis, or legislative history showing Parliament’s intent to do so.

C)    Title of s 201(b) of the SFA does not limit the language of the provision

219    While the Defence also pointed out that s 201(b) comes under the title “[e]mployment of manipulative and deceptive devices” in the SFA, apparently suggesting that these words would import the requirements set out in the s 10(b) of the US SEA into our s 201(b), with respect, the title of s 201(b) alone cannot, without more, govern the scope and interpretation of this provision.

220    In this regard, I make reference to the local High Court case of Soil Investigation Pte Ltd v PP [2018] SGHC 91 (“Soil Investigation”), where the Court was called upon to interpret s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed), a provision which had hitherto not been dealt with since its introduction. The Appellant there had made a similar argument that the title of the provision should guide its interpretation. In rejecting this proposition, Aedit Abdullah J at [39], referred to his earlier decision in Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd [2016] 5 SLR 226, where he had stated at [18] that the title, header or marginal note to a section was not determinative of its contents as it is intended only to summarise the contents of sections for ease of reference and was not always precise or exhaustive. In Soil Investigation itself, Abdullah J added at [40]:

In the present case, I find that the title of the section does not limit the actual statutory language used in the section. It is rather only a broad summary of the contents of the section. In particular, the title of s 56A does not necessitate that s 56A be read as extending liability for offences committed by agents or employees only. One must look beyond the title and consider the wording of the section itself.

[emphasis added]

221    In the same vein, the title of the section under which s 201(b) of the SFA falls, cannot operate to limit how s 201(b) should be interpreted, especially when this provision (with four separate limbs) clearly was intended to cover a wide scope. Instead, as made clear by Aedit Abdullah J in Soil Investigation, it was the “wording of the section” itself, rather than the title, that needed to be considered. The wording of the “likely to operate” limb of s 201(b) clearly does not set out any scienter requirement.

222    In summary, in light of the fact that:

(a)     There is no equivalent to section 10(b) of the US SEA in our SFA, which would guide or impose limitations on how we interpret s 201(b) of our SFA;

(b)     The difference in the wording of the punishment provisions in the US SEA and our SFA (i.e. s32(a) of the SEA vs s 204(1) of our SFA);

(c)     The comments of the US Supreme Court in Aaron on the lack of a scienter requirement in s 17(a)(3) of the US Securities Act of 1933 which is similarly worded to Rule 10b-5(b), and which may guide us in our interpretation of s 201(b) of the SFA;

(d)     The fact that language of s 201(b) itself does not set out any scienter requirement; and

(e)     Finally, noting that s 201 is in the nature of a “catch-all” provision, and is intended to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities;

I am of the view that there was simply no basis to impose a scienter requirement in the “likely to operate as a fraud limb”. Neither, a literal nor a purposive interpretation of s 201(b) supports such a requirement.

223    While I have held that the scienter requirement that applies to US legislation does not apply to our own s 201(b), this does not mean that the US cases dealing with Rule 10b-5(b) are of no relevance at all. Instead, the fact that US courts have tendered to interpret fraud widely under US securities law was particularly instructive. I will deal with this in greater detail in the next section of these Grounds.

Broad scope of fraud under US securities law

224    While it is clear that the US Courts have not laid down a precise definition for fraud, I accepted the Prosecution’s argument that various US authorities show that fraud is construed broadly in US securities law. The following cases illustrate this point:

(a)     In the US Supreme Court decision of O’Hagan, which was cited by the Prosecution,[note: 191] the offender, a partner in a law firm, was charged and prosecuted, inter alia, with violating Rule 10b-5. The Supreme Court there explained that misappropriation of confidential information specifically, and disloyalty to the principal generally, could amount to deceptive and fraudulent conduct.[note: 192] The Court explained that Rule 10b-5 was breached in such a case because:

… A fiduciary who “[pretends] loyalty to the principal while secretly converting the principal’s information for personal gain”, “dupes” or defrauds the principal.

[emphasis added]

Thus, it could be seen that the Supreme Court there did not confine the scope of Rule 10b-5 to insider trading but instead recognised that the scope of the rule was wide enough to include cases where a fiduciary intentionally breaches his duties for personal gain.

(b)     Next, in US Supreme Court decision of Santa Fe, the Court stated that Rule 10b-5 must be flexible and broad, to “prohibit the full range of ingenious devices that might be used to manipulate securities prices”[note: 193]. Further, while the Court there acknowledged that “fraud” under Rule 10b-5 did not bring within its ambit “all breaches of fiduciary duty in connection with a securities transaction”,[note: 194] I agreed with the Prosecution that the decision of the Court shows that a breach of fiduciary duty can and does fall within the ambit of fraud under Rule 10b-5.

(c)     Other US authorities have similarly recognised that securities fraud can take many forms and it is accordingly critical that the prohibition on fraud remains flexible and broad, so as to encompass and prevent a wide range of conduct. The following cases are illustrative:

(i)       In Lorenzo v SEC 139 S.Ct. 1094 (“Lorenzo”), it was stated that the Rules 10b-5(a)-(c) “[capture] a wide range of conduct”[note: 195];

(ii)       In A.T. Brod Co v Perlow 375 F.2d 393, 397 (2d Cir. 1967), it was stated that “Rule 10b-5…was designed to protect both investors and “the public interest”[note: 196], and that it was designed to prohibit all fraudulent schemes in connection with the purchase or sale of securities, including “novel or atypical transactions”[note: 197] (see also James v Gerber Products (“James v Gerber Products”) 483 F.2d 944 (6th Cir. 1973) at [4])

225    On its end, the Defence cited the US Supreme Court decision of Schreiber v Burlington Northern, Inc. 472 U.S. 1 (1985) (“Schreiber”) to argue that instances of corporate mismanagement, where the essence of the complaint was that shareholders were treated unfairly by a fiduciary, would not fall within the scope of s 10(b) of the US SEA. However, I agreed with the Prosecution[note: 198] that Schreiber was distinguishable as the Court there was asked to interpret 14(e) of the SEA, a provision that is different from Rule 10b-5. Further, while the Court in Schreiber did also consider the scope and interpretation of the word “manipulative” in the context of s 10(b) of the SEA, as stated earlier, s 10(b) of the SEA is not a provision found in our SFA, and hence the comments of the Court in Schreiber were not directly relevant to our present case. In any event, on the facts of that case, the claim for fraud was not sufficiently supported.

226    Thus, in summary, I agreed with the Prosecution that the US courts have ascribed a broad meaning to fraud within the context of Rule 10b-5, and have found that fraud had been committed when:[note: 199]

(i)     A trustee promoted the interests of any other (including himself) over that of the beneficiary (James v Gerber Products);

(ii)     Executors intentionally sold stock at an undervalue, causing loss (Heyman v Heyman (“Heyman”) 356 F. Supp. 958 (S.D.N.Y. 1973); and

(iii)     There was a breach of the duty of best execution for personal financial gain (Francis x Fleming v. Charles Schwab “Francis x Fleming”) (2017) 878 F.3rd 1146)

227    In short, I agreed with the Prosecution that in line with the common thread running through the US cases that conduct involving a breach of a duty owed to investors, with the intention or knowledge that this would result in loss to investors, or to financial gain to oneself, could also be regarded a fraudulent within the context of our s 201(b). This, as the Prosecution rightly argued, would be the correct approach to adopt as such conduct harms investors who have entrusted monies to another to invest and manage.

(III)   CANADIAN CASES ALSO REVEAL A BROAD UNDERSTANDING OF FRAUD

228    To strengthen its argument that a broad understanding of fraud should be adopted when considering s 201(b), the Prosecution also referred to Canadian authorities because Singapore cases and US cases have not explained precisely what fraud means in the context of their respective securities laws.

229    The Prosecution argued that even though the relevant Canadian provision was not worded in the same way as our s 201(b), a reference to Canadian law would nonetheless be useful, since key elements are similar, for example, the requirements that one “engage in any act” and “perpetrates a fraud on any person” in Canadian law, have equivalents in s 201(b).

230    In this regard,

(a)     The Canadian Securities Act R.S.O 1990 (“the Securities Act”) specifically contains the following provision:

126.1 (1) A person or company shall not, directly or indirectly, engage or participate in any act, practice or course of conduct relating to securities, derivatives or the underlying interest of a derivative that the person or company knows or reasonably ought to know, (a) results in or contributes to a misleading appearance of trading activity in, or an artificial price for, a security, derivative or underlying interest of a derivative; or (b) perpetrates a fraud on any person or company.

[emphasis added]

(b)     For purposes of comparison, our s 201(b) has similar requirements and reads as follows:

No person shall, directly or indirectly, in connection with the subscription, purchase or sale of any securities –

(b)     engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; …

231    As regards Canadian authorities, the Prosecution highlighted the following:

(a)     The Ontario Securities Commission ("the Commission”) decision In the Matter of Bradon Technologies Ltd., Joseph Compta, Ensign Corporate Communication Inc. and Timothy German 2015 ONSEC 26 (“Bradon”) which held that securities fraud encompasses acts that are distinct from deceit or falsehood.

(b)     The Supreme Court of Canada decision in R. v Theroux, [1993] 2 S.C.R.5 (“Theroux”) where it was held that “fraudulent means” in the Canadian fraud offence provision is to be determined objectively by reference to what a reasonable person would consider to be a dishonest act. In Théroux, Justice McLachlin (as she then was) summarised the elements of fraud at [27] as follows:

… the actus reus of the offence of fraud will be established by proof of:

1.    the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and

2.    deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk.

Correspondingly, the mens rea of fraud is established by proof of:

1.    subjective knowledge of the prohibited act; and

2.    subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).

232    The Prosecution argued that Canadian cases have given a broad meaning to fraud which does not confine fraud to deceit or falsehood. This supported its argument that fraud should be understood broadly, to encompass the breach of one’s duties, with the intention or knowledge that it would cause loss to investors or financial gain to oneself. In addition, the Prosecution highlighted several Canadian cases which have applied a broad interpretation of fraud:

(a)     The case of Wong (Re) 2016 LNBCSC 155 (“Wong (Re)”), which demonstrated that fraud is construed broadly under Canadian law and is established when one acts with the intention or knowledge that it would cause loss to investors or gain to another.

(b)     The case of Sino-Forest Corporation (Re), 2017 ONSEC 27 (“Sino-Forest”) (affirmed by the Ontario Superior Court of Justice on appeal in Hung v. Ontario (Securities Commission), [2019] O.J. No. 2982)) which demonstrated that fraud was found when one intentionally puts investor interests at risk for personal gain.[note: 200]

233    The Prosecution thus summed up that the Canadian authorities have established that securities fraud had been found where an accused person:[note: 201]

(a)     Acts with the intention to cause loss to investors; or

(b)     Puts investor interests at risk to benefit himself.

234    In response, the Defence essentially argued against referring to Canadian jurisprudence as some of the cases cited were not determined by judiciary authorities but by regulatory authorities (such as the cases of Bradon and Wong (Re)), and/or were based on legislation that was not in pari materia with s 201(b) of the SFA. The Defence also argued that the facts of the cases cited were also distinguishable from the facts in the present case.

235    In so far as Canadian authorities commented on the meaning of fraud in the context of their securities laws, I make the following observations:

(a)     While it is clear that Canadian legislation is not identical to provisions in our SFA, they nonetheless deal with similar concepts and contain similar wording as highlighted above (see [229] and [230] above).

(b)     Further, as earlier noted, the concept of fraud in s 201(b) has not been decided by Singapore cases before, nor is there a definition of “fraud” provided in the SFA. In addition, as highlighted earlier and as accepted by both parties, our case authorities have made clear that s 201 is a “catch-all” provision that covers all forms of securities fraud that have not otherwise been dealt with in other sections of the SFA (Ng Geok Eng at [34]), and is intended to penalise a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities. In fact, one of the main objectives of the SFA is to protect investors (Ng Sae Kiat at [58]). These objectives appear to be entirely consistent with s 126.1 of the Canadian Securities Act which seems to have a similar focus.

236    Thus, I did consider the guidance provided in the Canadian cases to be useful in understanding how “fraud” should be construed in the context of our s 201(b). Further, I accepted the proposition put forward by the Prosecution that securities fraud should be given a broad interpretation in a similar manner as what has been accepted in Canada.

(IV)   CONCLUSION ON THE INTERPRETATION OF FRAUD IN S 201(B)

237    To sum up, I agreed that consistent with Singapore, US and Canadian authorities, fraud should be given a broad meaning within the context of our securities laws. Specifically, in the context of the “fraud” limbs in s 201(b), fraud should not require proof of scienter or proof of deception, deceit or dishonesty. Further, I agreed with the Prosecution that based on the analysis of the cases, and the wide scope of s 201(b) fraud should be found where:

(a)     An offender who, in connection with the sale or purchase of securities breaches his duty (a concept we will discuss further in the next section of these GD); and

(b)     he does so knowing that this breach would cause loss to others or benefit himself.

238    The scope of fraud in s 201(b) would thus cover situations where an accused person, such as a portfolio manager, who is entrusted with and deals with securities of investors, and who voluntarily assumes this role, intentionally sells the securities in breach of his duty, knowing that by his act, he would thereby enrich himself or cause loss to the investors.

239    I will now examine whether the accused owes any duty to the SP1 investors in the context of s 201(b) and if so, what this duty entails.

(B)   Duty owed by the accused to sp1 investors

(I)   OUTLINE OF THE PARTIES’ ARGUMENTS

240    The Prosecution argued that the accused owed a duty to sell the MIE bonds at the highest possible prices and that this duty was owed to the investors. The Prosecution clarified that there does not mean that there was a requirement under s 201(b) to prove that the accused also owed a fiduciary duty to SP1 investors, even though the circumstances suggested that such a duty was actually owed by the accused in the present case.

241    The Prosecution instead argued that as a matter of logic and principle, it must be that the accused owed this duty to SP1 investors to sell the MIE bonds at the highest available prices in his capacity as a portfolio manager and that he had breached that duty in the present case. [note: 202]

242    I outline below the Prosecution’s arguments as to why the accused owed a duty to sell the MIE bonds at the highest available price, and why, in any case (even though it was not essential to establish the charges), the accused was in a position of a fiduciary vis-à-vis the SP1 investors.

243     First, the Prosecution cited the High Court case of Zhou Weidong v Liew Kai Lung and others [2017] SGHC 32 (“Zhou Weidong”) a case which established that fund managers owe fiduciary duties to investors.

(a)     In Zhou Weidong, the first defendant (Liew) had incorporated a company RCL (the second defendant) to spearhead its investments in China. The plaintiff (Zhou) maintained an investment portfolio in RCL, including four investments (“Four Investments”). Zhou subsequently claimed against Liew, for misrepresentation, breach of fiduciary duty, and constructive and resulting trusts pertaining to the Four Investments agreements that Zhou had entered with RCL.

(b)     Audrey Lim JC, who heard the case, made the following findings on the action for breach of fiduciary duty. Her Honour stated:

(i)       At [27] that “(e)ven if investment or fund managers do not fall within settled categories of fiduciaries, the circumstances of the case justify the imposition of such duties….”

(ii)       At [29], her Honour found that “Liew and RCL owed a duty to act in good faith for Zhou’s benefit, having voluntarily taken on the responsibility as Zhou’s fund manager handling Zhou’s investment moneys”. As they had not acted in Zhou’s best interest, they were thus in breach of their fiduciary duties (I will discuss this case further at [254] of my GD below).

244    Thus, in essence, the Singapore High Court in Zhou Weidong recognised that a fund manager owes a fiduciary duty to an investor when he voluntarily takes on the responsibility to handle the investor’s monies.

245    In the present case, the accused, was the portfolio manager of SP1.

(a)     In that capacity, he was entrusted with and had voluntarily taken on the management of the SP1 investors’ monies and the investment products in SP1. Further, as portfolio manager, he also handled the sale of the assets of SP1 including the sale of the MIE bonds.

(b)     On 19 January 2016, there was no dispute that the accused had full control and management of the assets in SP1. He was thus essentially in the same position as the fund manager in Zhou Weidong and owed fiduciary duties to the investors to act in good faith and for their benefit. Specifically, he had a duty to act to protect the interests of the investors, which in the context of selling the assets of the funds, meant that he had to sell them at the highest available prices in favour of his investors, and not to act against their interests or for his own benefit.

(c)     Specifically in the case of SP1, SCL was the majority investor of SP1 and the accused was the appointed portfolio manager assigned to manage the fund. Ms Lily Ng, who was SCL’s representative, had also testified that as an investor who has funded SP1, SCL expected the accused to sell the assets of SP1 at the highest possible price.[note: 203]

246     Second, the Prosecution argued that in any event, there was no need to prove that the accused had a fiduciary duty to make out a s 201(b) offence, as individuals in the accused’s position must, in any event, owe duties to those who entrust monies to them. The Prosecution made the following submissions.

(a)     Referencing the evidence of the expert witnesses, Ms Low and Mr Cheong, the Prosecution highlighted that both witnesses essentially testified that the accused owed a duty to ensure the accused obtained the best available prices for the sale of the MIE18 and MIE19 bonds. As regards the evidence of these experts, the Prosecution pointed out that:

(i)       Ms Low testified that she is an expert in fund management, and also has expertise in trading. As such, her evidence both as to fund management and trading was relevant to the issue of how the trades ought to have been carried out, particularly as OAIP has no trading desk, and the accused was wearing the hats of both a portfolio manager and a trader, Similarly, while Mr Cheong had given expert evidence on trading, he also has experience as a fund manager, and his experience on both aspects cannot be separated especially as the accused, as a portfolio manager, was also doing trading in wearing his other hat.

(ii)       Ms Low’s evidence was that the accused owed a duty to ensure best execution in the trades that he conducted. While there were no applicable guidelines from MAS in place at the time, her opinion was that the accused had a duty to ensure best execution which was “part and parcel” of the duties and obligations expected of fund managers, the role that she viewed as being played by the accused. In her report at [11], Ms Low explained best execution to mean “…achieving optimal economic outcome, taking into consideration the market circumstances.”

(iii)       Mr Cheong took essentially the same position in both his expert report and in his evidence in court. In his expert report, Mr Cheong stated that when a fund manager wishes to sell bonds, he should check for prices “in order to find the best available price to maximise the investment return”. In court, Mr Cheong added that the duty to act in the best interests of investors means ensuring that the interests of the investors were looked after and avoiding benefitting oneself at the expense of the investor. He explained that this duty was rooted in the fact that investors have entrusted their money to the fund manager to look after. Mr Cheong elaborated that acting in the best interests of a fund included getting the “best returns” which meant selling at the highest possible price.

(iv)       The Prosecution pointed out that the Defence had not called any expert to rebut and challenge these points made by the Prosecution’s experts. Thus, as recognised by the Court of Appeal on multiple occasions, the Court should be slow to reject expert evidence which was unopposed (citing Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1 (“Saeng-Un Udom”) at [26], and Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 (“Sudha Natrajan”) at [46]).

(v)       In essence, the Prosecution argued that the basis of the duty owed by the accused to SP1 investors was because the latter had entrusted their investments to him as their portfolio manager, to manage them and to sell their investment assets.

(b)     Next, the Prosecution highlighted the accused’s own evidence about the duty he owed. In this regard:

(i)       The accused had agreed that as a portfolio manager of SP1, he had a duty to sell the MIE bonds at the highest available prices that he could obtain. This was logical because the sub-fund investors invested their monies for the portfolio managers to invest, including buying and selling assets. The accused also agreed that a portfolio manager has to act in the best interests of the sub-fund he manages, which entailed getting the highest possible prices given the circumstances. This was so that the investors could get back as much sale proceeds as possible (see [106] and [107] above).

(ii)       Further, the accused had agreed that he has a duty to sell the products, when liquidating them, at the highest available prices. The Prosecution pointed out that there must be such a duty because otherwise, there would be no parameter governing or guiding the conduct of the portfolio manager, and the portfolio manager, in selling, could otherwise sell at any price he wanted.[note: 204]

(iii)       As for the denials made by the accused on the nature and scope of the duty he owed to SP1 investors, his attempts to distinguish his duty by limiting it to SP1 and not its investors, and also the distinction that the accused had sought to draw between the various roles he held at OAIP and his argument that no one, including himself, owed any duty to SP1 investors for trading or investments, the Prosecution argued that these claims were all illogical because SP1 was funded by investors’ funds. Instead, ultimately, by stepping back from labels and considering substance and not form, it was clear that the accused was entrusted with SP1 investors’ monies, and hence he owed a duty to the investors as it was the investors who would benefit or suffer a loss based on how he carried out his duty.[note: 205] It would thus be artificial to assert that duties were owed by the accused to the fund SP1 itself, but not to the investors who funded SP1.

(iv)       Further, while the accused claimed that his duty to obtain the highest available prices merely laid within his employment agreement with OAIP, when pressed, the accused claimed that this was a “general duty”, and there was “no such clause in the [employment] contract” setting this out.[note: 206]

(v)       Thus, even by his own evidence, the accused had to sell the MIE bonds at the highest available prices because the investors had entrusted their monies to him to manage. The accused was fully cognisant of this duty because he sought bids from market participants on the morning of 19 January 2016 and he claimed he was doing price discovery before carrying out the trades. The Prosecution highlighted that it would have been unnecessary for him to have done this or to claim that he was doing price discovery if he was not cognisant of his duty. Instead, he could simply have carried out the trades at any arbitrary price, if no such duty existed.

247    The Defence’s response, as extensively set out in its submissions and replies, can broadly be summarised as follows:

(a)     The Defence argued that the Prosecution had changed its stance in the course of the pre-trial preparation, and also in the course of the trial itself. The Defence also took issue with the Prosecution’s argument that the accused had an “overarching obligation” to “ascertain the highest prices available at the material time”,[note: 207] which was apparently based on a fiduciary duty or obligation that was owed. The Defence argued that “(t)his alleged duty is not mentioned in the various iterations of the charges against the accused, the CFP, nor the Prosecution’s Opening Statement.”

(b)     The Defence further argued that the Prosecution’s articulation of the duty owed by the accused was not framed in such terms in the expert reports of Ms Low and Mr Cheong and that “… the source and scope of the alleged fiduciary duty owed by the accused remains thoroughly unclear and unsubstantiated.”[note: 208]Additionally, the Defence submitted that any claim by the Prosecution experts of the accused’s alleged fiduciary duty was based on an erroneous understanding of the PPM, and of the accused’s role.

(c)     Further, even by the evidence of the Prosecution experts, the Defence argued that they had not framed the duty as one to obtain the best price, but rather, to obtain the best execution, and the Prosecution had conflated the notions of “best execution” with that of “highest price”, “highest available price” and “highest available executable price”.

(d)     The Defence instead took the position that the accused’s duty, if any, was only to obtain best execution, which does not mean the best price. Instead, the Defence highlighted that “(v)arious factors, besides price, are at play in obtaining the best execution, including the likelihood of execution and settlement, the size and nature of the order, the character of the market of the security (e.g., volatility and relative liquidity), the amount of bonds concerned, the circumstances and trading strategy of the trader or fund manager selling the bonds, the market context and the circumstances of the case.”

248    Having broadly outlined the parties’ respective cases, I now move on to examine the issues raised concerning the accused’s alleged position (and duty) as a fiduciary, and his alleged broader duty, in any event, to sell each of the MIE bonds at the highest available price.

(II)   ACCUSED’S POSITION AS A FIDUCIARY

249    I first consider the issue of whether the accused can be said to be a fiduciary, and thus owed fiduciary duties to the SP1 investors as such.

250    In the DRCS at [13], the Defence referred to Snell’s Equity (John McGhee & Steven Elliott gen eds) (Sweet & Maxwell, 34th Ed, 2020) (“Snell’s Equity”), where the learned authors had noted that “(t)he word “fiduciary” has been used in a variety of ways in equitable doctrine…” and that ““…unthinking resort” to verbal formulae has only created confusion in the fiduciary concept, and should be avoided.” (see [7-002] – citing Bristol and West Building Society v Mothew (t/a Stapley & Company) [1998] Ch 1 (“Bristol”)).

251    Further, at [7-005] of Snell’s Equity, the learned authors set out the following propositions:

(a)     The categories of fiduciary relationships are not closed. Fiduciary duties may be owed even if the relationship does not fall within one of the settled categories of fiduciary relationships, provided the circumstances justify the imposition of such duties;

(b)     Identifying the kind of circumstances that justify the imposition of fiduciary duties is difficult because the courts have consistently declined to provide a definition, or even a uniform description, of a fiduciary relationship, preferring to preserve flexibility in the concept. There is, however, growing judicial support for the view that:

a fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

[emphasis added]

(c)     The undertaking can be implied in circumstances, particularly where someone has taken on a role in respect of which fiduciary duties are appropriate. Hence, it has been said that:

(i)        Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct or the affairs of another.

(ii)       The concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal.

(d)      The expectation is assessed objectively, and so it is not necessary for the principal subjectively to harbour the expectation. Nor is it relevant whether the person who is alleged to be a fiduciary subjectively considered himself to be undertaking fiduciary duties.

[emphasis added]

252    In addition, at 7-008 of Snell’s Equity, the learned authors noted:

The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This obligation of loyalty has several facets, which are addressed separately below. Millett LJ provided a non-exhaustive list of those facets in his judgment in Bristol & West Building Society v Mothew, which is “widely regarded as a masterly survey of the modern law of fiduciary duties”

“A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal.”

The fundamental fiduciary obligation of loyalty comprises two related themes. The first prohibits a fiduciary from acting in a situation where there is a conflict between the fiduciary’s duty and his or her interest: “the objective is to preclude the fiduciary from being swayed by considerations of personal interest”. The second prohibits a fiduciary from making a profit out of his or her fiduciary position: “the objective is to preclude the fiduciary from actually misusing his position for his personal advantage”.

[emphasis added]

253    In the local case of Ho Yew Kong v Sakae Holdings Ltd [2018] 2 SLR 333 (“Ho Yew Kong”), the Court of Appeal also discussed the concept of fiduciary duties. At [135], the Court stated:.

[135] ...Fiduciary duties in the classic sense encompass the two distinct rules proscribing a fiduciary from making a profit out of his fiduciary position (namely, the no-profit rule) and putting himself in a position where his own interests and his duty to his principal are in conflict (namely, the no-conflict rule): see Bray v Ford [1896] AC 44 and Chan v Zacharia (1984) 154 CLR 178. Although conceptually distinct, these two rules share a common foundation in a director’s duty of loyalty to his company. The duty of care, skill and diligence is not a fiduciary duty because it is not imposed to exact loyalty from a director, and accordingly does not encompass either of the two aforementioned rules that are the hallmarks of a fiduciary obligation…"

[emphasis added]

254    Further, as discussed at [243] above, in Zhou Weidong,[note: 209] the Singapore High Court had recognised that a fund manager owes a fiduciary duty where he voluntarily took on the responsibility to handle investor monies. Audrey Lim JC (as she then was) had stated:

27.    .. I find that as the intended investment or fund manager under the Four Agreements, RCL and Liew (the alter ego of RCL, being its only shareholder and director) owed fiduciary duties to Zhou. Even if investment or fund managers do not fall within settled categories of fiduciaries, the circumstances of the case justify the imposition of such duties.

28    In Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654 (“Tan Yok Koon”), the Court of Appeal set out a few observations on fiduciary law. First, the hallmark of a fiduciary obligation is that he is to act in the interests of another person. The distinguishing obligation of a fiduciary is the obligation of loyalty which entails that he must act in good faith for his principal’s benefit (at [192]). Second, a fiduciary obligation is a conclusion rather than a premise. The relationship is the reason why undertaken duties are fiduciary (at [193]). Third, fiduciary obligations are voluntarily undertaken (see also Vivendi SA v Richards [2013] EWHC 3006 (Ch) at [137]–[141]). Such undertakings arise when the fiduciary voluntarily places himself in a position where the law can objectively impute an intention on his part to undertake these obligations (Tan Yok Koon at [194]).

29     I find that Liew and RCL owed a duty to act in good faith for Zhou’s benefit, having voluntarily taken on the responsibility as Zhou’s fund manager. Based on my earlier findings on the mismanagement of Zhou’s investment moneys, Liew and RCL had not acted in Zhou’s best interest, and were thus in breach of their fiduciary duties.

[emphasis added]

255    In the present case, I noted that the accused played multiple roles in OAIP, AACF and in the various sub-funds including SP1 and SP5. What was also clear was that in the context of SP1, both in the lead up to 19 January 2016, as well as on that date itself, the accused was the co-portfolio manager and, because of the restrictions placed on Mr Lai (who was supposed to be the other co-portfolio manager), the accused was effectively the sole person who was managing/trading the MIE bonds for SP1 on that date. Specifically, in respect of the MIE bonds, the accused was the sole decision maker in determining when to sell the MIE bonds, who to sell them to, and at what price and in what manner he wished to adopt to carry out the sale on 19 January 2016.

256    As the impetus to sell the MIE bonds was due to the redemption request made by SCL the majority shareholder of SP1, it was clear that the timing, method, and the price at which the accused determined the sale of the MIE bonds, would directly affect the proceeds that SCL would receive, something the evidence showed the accused was aware of.

257    Separately, in the case of SP5, the accused was not only the portfolio manager, but he was also the clear and overwhelming majority shareholder of SP5 at the time of the passthrough trade on 19 January (see [520] below). In this regard, just prior to the sale of the MIE bonds by SP1, and the ultimate purchase of these same bonds by SP5, both of which were decisions made solely by the accused, he had taken active steps to become the majority shareholder of SP5. The result of these actions was that by 18 January 2016, the day before the passthrough trade, the accused held 94.1% share of SP5, with OAIP (with the accused as one of its shareholders) owning the remaining 5.9% of SP5.

258    Further, like the situation in Zhou Weidong where Liew, the fund manager, was found to have breached his fiduciary duty to the investor Zhou when he failed to act in Zhou’s best interest, the accused who had taken on the role of the portfolio manager of SP1, and was also the sole person entrusted with and empowered to deal with the MIE bonds of SP1 on 19 January 2016, solely decided on the price, timing, mode of sale and buyer of the SP1 bonds. The accused was thus a fiduciary and owed fiduciary duties to the SP1 investors at the time he sold the MIE bonds from SP1 to SP5 via the passthrough mechanism. In other words, having been entrusted with full control, authority and management over how and when the MIE bonds would be transacted, and to whom and at what price, and having voluntarily taken on the role of dealing with them via the passthrough (to a sub-fund which was almost completely owned by him), the accused had “an obligation of loyalty which entails that he must act in good faith for his principal’s (i.e. the SP1 investor’s) benefit” (see Zhou Weidong at [28] citing the decision of the Court of Appeal in Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654 (“Tan Yok Koon”) at [192]).

259    The Defence, however, sought to distinguish the decision in Zhou Weidong from the present case by emphasising that while the intended investment or fund manager, RCL, as well as Liew who was the only shareholder and director of RCL (and its “alter ego”), were found to owe fiduciary duties to the plaintiff investor, the situation was different here as the accused was not the fund manager since the actual fund manager of AACF (including SP1) was OAIP under the PPM.

260    With respect, I am of the view that while it was technically correct to say that the fund manager of AACF (including SP1) was OAIP and not the accused, this was a distinction more in form than substance.

(a)     For one, it was not disputed that at the material time in January 2016, the accused was a director, shareholder (with 83.6% of the shares), and he was the Chief Investment Officer of OAIP. More importantly, the accused was the portfolio manager of SP1, and also the person given full control and authority over how the MIE bonds in SP1 could be disposed of. He could choose whether to sell them, when to sell them, who to sell them to, and by whatever method (i.e. via a sale to a counterparty, sale via a cross-trade, or sale via a passthrough trade). Further, throughout the entire sale process, he was the person with the sole authority and discretion to decide on the trading of the MIE bonds on the date and time in question, and he actually did so, without reference to or needing to seek clearance or approval from anyone else for his actions. His status and authority contrasted sharply with those of Mr Lai (the other person who could have traded the bonds), who would had to get the approval of the accused before he could conduct a trade of the securities in SP1.

(b)     Thus, the accused was in no different a position from Liew/RCL, the fund manager in Zhou Weidong, and hence like Liew/RCL who were found to owe a fiduciary duty to Zhou (the investor), the accused here similarly owed a fiduciary duty to the SP1 investors. Clearly, one should look beyond the labels, and focus on substance rather than form.

261    Finally, in assessing whether the accused could be said to be a fiduciary, I adopted the following guidance from the commentaries in Snell’s Equity (see [250] – [252] above), namely:

(a)     the categories of fiduciaries are not close;

(b)     fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct or the affairs of another;

(c)     the concept of a fiduciary encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal; and

(d)     the expectation is assessed objectively, and so it is not necessary for the principal subjectively to harbour the expectation. Nor is it relevant whether the person who is alleged to be a fiduciary subjectively considered himself to be undertaking fiduciary duties.

262    Thus, considering the principles summarised in [261] above, even if one disregards the decision of the High Court in Zhou Weidong that found the fund manager there to be a fiduciary (and by analogy, the accused would similarly be regarded as a fiduciary), I was of the view when one assesses the facts of the present case, namely:

(i)     the position of the accused as the portfolio manager of SP1 with full control and management of its assets on 19 April 2016;

(ii)     the fact that he voluntarily took on the role of deciding on the manner, timing and price of the sale of the assets of SP1 on that date; and

(iii)     the fact of the accused’s sole and unfettered discretion over the trading decisions of the MIE bonds;

all go to show that the accused’s role and relationship with the SP1 investors was such as to objectively give rise to “a legitimate expectation”, that he “will not utilise his position in such a way which is adverse to the interests of the principal”. Further, in line with the guidance above (see [261(d)], it was not necessary for the accused to subjectively harbour the expectation, nor was it relevant whether he subjectively considered himself to be undertaking fiduciary duties.

263    In short, I was of the view that the accused was a fiduciary in the present case vis-à-vis the investors of SP1, and hence he must act in good faith for their benefit. I would add that my assessment was consistent with the opinions of the expert witnesses, and also with the accused’s own evidence in court. As regards the latter, the accused himself recognised the conflict situation that he was in, whereby effecting the passthrough trade with the interest of SP1/its investors and the interest of SP5/himself as the overwhelming majority shareholder being essentially mutually inconsistent, he thus needed to resolve this conflict by having Pareto play an (impartial) part in this process. The latter was supposed to be effected by Pareto conducting its own price discovery so as to ensure a “fair price” for the sale of the MIE bonds.

264    All in all, it was clear that the accused owed an obligation of loyalty towards the SP1 investors, which prohibits him “…from making a profit out of his fiduciary position (namely, the no-profit rule) and putting himself in a position where his own interests and his duty to his principal are in conflict (namely, the no-conflict rule)…” (as per Sundaresh Menon CJ delivering the judgment of the Court of Appeal in Ho Yew Kong at [135]).

(III)   DUTY TO SELL AT THE HIGHEST AVAILABLE PRICE

265    In his position as a fiduciary, the accused should not benefit at the expense of his principal, or put himself in a position of conflict. His obligation of loyalty also entailed that he must act in good faith for his principal’s (i.e. the SP1 investor’s) benefit. In the case of selling the MIE bonds, this would have meant that he had to seek to sell at the highest available price, and certainly not do it in such a manner that benefits himself at the expense of the SP1 investors.

266    In any event, the Prosecution argued that there was no need to show that the accused owed a fiduciary duty before any contravention of s 201(b) of the SFA could be established. Instead from the evidence of the expert witnesses (see [246(a)] above), it was clear that in his duty as a portfolio manager when selling any asset of the fund, the accused has a duty to sell it at the highest available price that he could obtain in the circumstances.

267    The expert’s opinions were in fact fortified by the accused’s own admissions that he made in court.[note: 210]

Q.    Now, I want to ask you, as the portfolio manager of SP1, or for that matter as a portfolio manager of any of the sub-funds, when you go about to sell any asset of a sub-fund, did you have to sell at the highest available price that you could obtain?

A.     Yes, I do.

Q.     All right. That is logical because it is in order to get the highest available price for the sub-fund in selling any asset of the sub-fund, isn't it?

A.     Yes, it's logical to get the highest available price at that point of time given the circumstances then.

Q.    I understand. And it is also logical and makes sense because the investors of a sub-fund invested money into the sub-fund for the portfolio manager to invest, including to sell, correct?

So if you don't understand my question, my question simply is that what you agreed as to the portfolio manager having to sell at the highest available price in the circumstances any asset of a sub-fund, it is because investors of a sub-fund invest the money into the sub-fund for the portfolio manager to invest, including to sell assets. It is just a follow-on question. Do you agree?

A.    Yes. In general I agree, yes.

Q.    That's fair. Now, do you also agree with me that investors of a sub-fund, when they invest money to the sub-fund, they entrust their money to the portfolio manager to invest, including to buy using their money or to sell assets of the sub-fund?

A.     Yes, I agree.

Q.    Having heard from you on these questions I asked, would you be able to also agree then that for a portfolio manager to sell any asset of a sub-fund at the highest available price you could obtain in the circumstances, that was also a duty of the portfolio manager?

A.     Yes, I agree.

[emphasis added]

268    Thus, by agreeing that in his role as a portfolio manager, he owed a duty to the investors to sell the assets of SP1 at the highest possible price, the Prosecution submitted that the accused was essentially agreeing to what the experts, Mr Cheong and Ms Low, had set out in their reports and evidence.

269    I agreed with the submissions of the Prosecution. Thus:

(a)     As a portfolio manager of SP1, and one who was given sole discretion over how, when, to whom and at what specific price to sell the MIE bonds, the accused was to be guided by the duty he owed to the investors of SP1 to sell the MIE bonds at the highest possible price.

(b)     This was a duty confirmed by the experts and a duty that the accused himself acknowledged and admitted that he was aware.

(c)     As stated above, such a duty to sell the MIE bonds at the highest possible price was also consistent with the accused’s status as a fiduciary.

270    Having made clear the duty of the accused, I now go on to examine whether he breached his duty in a way as to amount to an offence under s 201(b) of the SFA.

Whether the offences have been made out

271    Having discussed the law relating to a s 201(b) offence, I now consider whether the charges against the accused have been proven beyond a reasonable doubt.

First Element: The accused engaged in an act directly in connection with the sale of securities, namely, the MIE bonds

272    The first element of the s 201(b) offence broadly concerns the actus reus of the offence and the nature of the accused’s actions. I agree that this element of the offence was made out. I explain below.

273     First, it was not disputed that the accused did intentionally sell the MIE bonds from SP1 at prices pegged to Haitong’s bid prices, and then almost immediately thereafter bought the same MIE bonds into SP5 through Pareto by way of the passthrough mechanism which he had earlier arranged with Mr Reshad.

274    To effect this sale and purchase through the passthrough mechanism, the accused had made use of two separate chats with Mr Reshad to carry out the buying and selling of the MIE bonds. This involved SP1 selling to Pareto (via a group chat started by Mr Reshad – “Chat A”) followed by SP5 buying from Pareto (via a separate one-on-one chat started by the accused – “Chat B”). The accused’s actions were reflected in P72 (reproduced below) which captured the two chats on 19 January 2016.

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275     Second, I noted that even before the passthrough trades were carried out on 19 January 2016, the accused had already taken preliminary steps in preparation for them. In this regard, aside from the actions he took to set up and prepare SP5 beforehand through the injection of his funds (see [29] above), the accused had also:

(a)     Checked with his contact at Goldman Sachs for indicative bid prices of the MIE bonds on 18 January 2016 (Monday), which was just one day before the commission of the alleged offences; and

(b)     Liaised with Mr Reshad to set up accounts with Pareto for the passthrough trades to be carried out. As set out in the transcripts of a phone call exchanged between the accused and Mr Reshad prior to 19 January 2016 (P55), Mr Reshad had told the accused that the accounts were set up and “If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great."

276    Specifically, for the transactions involving the MIE bonds on 19 January 2016, it could be seen from the two chats (P72 above) that:

(a)     During the period from 10:18:58 a.m. to 10:43:50 a.m., when Mr Reshad alerted the accused via the group chat that he was ready (to buy the MIE bonds in SP1 from the accused), all the way until Mr Reshad sold the same MIE bonds to SP5 through the accused, the accused was the sole person in OAIP that dealt with Mr Reshad for the passthrough trades.

(b)     Mr Reshad said that the same party (i.e. the accused) was buying and selling the bonds, and he just relied on the accused for the price.

(i)       Thus, when the accused unilaterally improved his offer to buy the MIE18 bonds (acting for SP5 at this stage) from 25 to 25.5 at 10.39.55 a.m., Mr Reshad had simply correspondingly adjusted the price to 25.375 (25.5 minus Mr Reshad’s spread of 0.125) and presented it to the accused (acting now for SP1) for the same bonds. The accused had then, on behalf of SP1, said “done” to confirm the trade i.e. for SP1 to sell the bonds.

(ii)       For the MIE19 bonds, it was also the accused who sold the bonds at 22 from SP1 to Pareto and then bought the same bonds at 21.875 from Pareto for SP5.

277    Thus, it was clear that apart from the accused, no one else was involved in the decision to execute the passthrough trades for the two MIE bonds, and it was also the accused alone who decided the time and price that they were transacted at – both the “sell price” by SP1 and the “buy price” by SP5.

(a)     In this regard, neither Mr Goh nor Mr Lai was involved in the seeking of bids on 19 January 2019 for the MIE bonds. They also did not know of the higher bids that were provided to the accused that morning, and neither were they involved in the actual transactions that took place at 10.41:14 a.m. (sale of the MIE bonds by SP1), or at 10:44:57 a.m. (purchase of the MIE bonds by SP5).

(i)       Specifically, Mr Goh was not involved in the trades of the MIE18 and MIE19 bonds in question.[note: 211] He also has no decision-making authority over the choice of bonds for the funds, or what would be done with the bonds after they were acquired.[note: 212]

(ii)       As for Mr Lai, he had a trading freeze imposed on him from 4 January 2016,[note: 213] and could only carry out the transactions with the approval of the accused. It was, however, not explained why approval was not granted by the accused to Mr Lai to carry out the passthrough trades since the accused was supposedly so busy on the morning of 19 January 2016, and since there was a clear potential of conflict for the accused that was involved in this transaction. Instead, Mr Lai was not present in the Bloomberg chat rooms or involved in the conversations at the material times between the accused and Ms Goyal,[note: 214] nor those between the accused and Mr Reshad.[note: 215] Further, Mr Lai was also not notified of the bid prices given by Morgan Stanley or SC Lowy.[note: 216] In addition, Mr Lai was not asked why he left the various chats involving Mr Reshad or the various counterparties on the material day that these MIE bonds were sold from SP1 to SP5 via the passthrough.

(b)     In any event, the accused accepted that he alone executed those passthrough trades with Mr Reshad on 19 January 2016 and that Mr Goh and Mr Lai were not involved.[note: 217]

(c)     As for Mr Patrick Koh, he was apparently present in the main chats (only) that the accused engaged in with some of the counterparties, as Mr Patrick Koh manned the OAIP account on the morning of 19 January 2016. The Defence suggested that his presence meant that he should have highlighted any issue of concern to the accused about the passthrough trades.

(i)       However, contrary to the Defence’s arguments, there was nothing to show that Mr Patrick Koh was aware that what the accused did would constitute an offence under s 201(b), nor was there any suggestion that Mr Koh was supposed to have any role in regulating the trades or to prevent the commission of such an offence. In this regard, Patrick Koh was a settlements staff member and not a portfolio manager, nor was he in the compliance department of OAIP. So, he was not involved in trading the MIE bonds, nor was he necessarily even familiar with the process involved to get the appropriate prices.

(ii)       Further, Mr Patrick Koh, like Mr Lai and Kelvin Goh, was not involved in the actual passthrough trades, [note: 218] as only the accused was engaged in the chats. It was also only the accused who decided when to sell the MIE bonds, who to sell them to, and at what price they should be transacted. There was no one that the accused needed to answer to or to clear his decisions with.

(iii)       Additionally, and vitally, Mr Patrick Koh was not involved in several important chats on 19 January 2016, in particular, the one-on-one chats that the accused engaged in with some counterparties/intermediaries, such as with Ms Goyal of Morgan Stanley or Mr Reshad of Pareto. Hence, Mr Patrick Koh would, at best, have had an incomplete picture about the bids that were received from the counterparties, and about what was discussed between the accused and some of the counterparties/intermediaries.

(iv)       Also, for the Haitong chat, the persons on the OAIP account were not involved as it was only carried out between the accused and Mr Ray Xie. Similarly, for the BNP account where the prices were posted, it was also only a chat between the accused and Ms Pamela Tsang of BNP, as was the chat between the accused and Jamie Tadelis of SC Lowy, which involved only the two of them. And for the Morgan Stanley one-on-one chat, it was only the accused and Ms Goyal that were involved.[note: 219] Of course, the one-on-one chat that the accused initiated between him (acting on behalf of SP5) and with Mr Reshad to buy the MIE bonds would also presumably not have been known to Mr Patrick Koh.

(v)       Finally, based on the evidence tendered, the accused as CIO would presumably have outranked Mr Patrick Koh, even if the latter had a full and complete picture of what was happening (which it appears he does not). In those circumstances, it is hardly reasonable to expect Mr Patrick Koh to be aware, let alone challenge or doubt the correctness or legitimacy of what the accused had done. So in short, contrary to the Defence’s assertions, just because Mr Patrick Koh was on the OAIP account was completely irrelevant.

278    Thus, to sum up, as regards the first element of the offence, it was clear that the accused did engage in an act directly in connection with the sale of securities i.e. the MIE bonds on 19 January 2016.

Second Element: The act was likely to operate as a fraud upon the investors of SP1

279    The Prosecution’s case on this element can be summed up as follows[note: 220]:

(a)     The accused had a duty to sell the MIE bonds from SP1 at the highest available prices.

(b)     On 19 January 2016, before 10:08:50 a.m., which was the time Haitong gave its bids for the MIE bonds, the accused had already decided to sell the MIE bonds from SP1 to SP5.

(c)     When the accused saw the Morgan Stanley bids that Ms Goyal reposted at 10.09 a.m., he knew they were executable.

(d)     The accused did not sell the MIE bonds to Ms Goyal, or the MIE19 bonds to SC Lowy, because by that time he did not intend to sell them to the market.

(e)     Even though Ms Goyal sent a message in the group chat at 10.23 a.m. asking the accused to refresh before trading, there was no reason for the accused to have gone back to the group chat with Ms Goyal and therefore he did not see this message because prior to that he did not intend to sell the MIE bonds to her.

(f)     Even if the accused had seen Ms Goyal’s message of 10.23 a.m., then if it was true that he genuinely wanted to sell the MIE bonds at the highest available prices, he ought to have asked Ms Goyal if her earlier bid prices were still valid, given that those prices were the highest amongst the bidders and he was still purportedly doing price discovery.

(g)     On 19 January 2016, when the accused received executable bids from counterparties (e.g. from Morgan Stanley, SC Lowy), he should have sold the MIE bonds to those bids because they were higher than Haitong’s or used those prices as market context for the passthrough trades.

(h)     The accused’s defence that he sold the MIE bonds from SP1 to SP5 at fair prices cannot be accepted because he did not do genuine price discovery and he had no basis to expect Mr Reshad of Pareto to do price discovery.

(i)     If the accused was carrying out genuine price discovery, he would have checked back with Morgan Stanley before he sold the MIE bonds to SP5 through Pareto. For BNP, his claim that he did not see BNP’s bid was inconsistent with his claim he was doing price discovery. When the accused asked BNP’s Pamela Tsang for bids, she responded and acknowledged. She did not state that BNP was not bidding – instead, the accused moved on. He ought to have checked back with BNP if his claim of doing genuine price discovery was true.

(j)     In connection with the sale of the MIE bonds, the accused’s acts which likely operated as a fraud upon SP1 investors comprised the

(i)       intentional act of selling the MIE bonds from SP1 and buying them for SP5 at the lower prices pegged to Haitong’s bids through Pareto; and

(ii)       done with the knowledge of the earlier higher bids when he carried out the trades.

(k)     In selling the MIE bonds from SP1 and buying them into SP5 despite knowing of earlier higher bids, the accused breached his duty to sell the MIE bonds at the highest available prices. He intentionally caused loss to the investors of SP1, as well as benefitted himself as the overwhelming majority shareholder of SP5.

280    The Defence argued that the Prosecution had failed to prove the charges beyond a reasonable doubt. Its main arguments are outlined below:[note: 221]

(a)     The accused’s duty was one of best execution, and not to sell at the best available price.

(b)     The accused had no alleged fiduciary duty.

(c)     The accused properly disclosed and dealt with his conflict of interests.

(d)     The accused did not know that the Morgan Stanley bids for the MIE bonds were executable at 10:15:21 a.m., and specifically:

(i)       The accused did not see the Morgan Stanley bids or their repost until around 10:15:21 a.m.; and

(ii)       it was not unreasonable for the accused to have asked Ms Goyal at 10:15:21 a.m. to confirm if her bid was for the full block

(e)     There was no alleged duty to sell the MIE bonds at 10:15 a.m. or shortly thereafter.

(f)     There was no alleged duty to use the Morgan Stanley bid prices which were no longer being firm, valid or executable after 10:23 a.m.

(g)     The accused only saw the Morgan Stanley chat after 10:23 a.m., when Ms Goyal had refreshed the bids.

(h)     There was no alleged duty to refresh the Morgan Stanley bids after 10:23 a.m.

(i)     The accused’s use of Haitong price was done in good faith.

(j)     The accused executed the passthrough trades at the best available price that he was aware of.

(k)     The accused did not know that Pareto, the third-party independent broker, would not do price discovery or would rely solely on him to give the price for the passthrough.

(l)     There was no motive or intention to cause loss to SP1’s investors or benefit himself as the majority shareholder of SP5.

281    I move on now to consider whether the Prosecution had established its case beyond a reasonable doubt based on its main arguments and also to review the main points put forward by the Defence.

I) Duty to sell the MIE bonds at the highest available prices

282    As stated earlier, while the Prosecution was of the view that the accused, in his capacity as portfolio manager of SP1, was a fiduciary vis-à-vis the SP1 investors, and that he owed duties to the investor as such, the Prosecution also took the broader position that for the purposes of making out the charges under s 201(b), there was no actual need to prove that the accused owed a fiduciary duty to the investors. Instead, the Prosecution said that the facts showed that in any event, the accused had a duty to sell the MIE bonds at the highest available price, and that this was consistent with the tenor of the evidence given by the Prosecution expert witnesses (which was unrebutted by contrary expert evidence), the expectations of SCL, which was the majority investor of SP1, and the accused’s own evidence that as the portfolio manager he had a duty to sell the MIE bonds at the highest available price.

283     The Prosecution also made it clear that the highest available price was something that the accused was to actively seek, and it was not the case that the accused only had to have regard to the executable prices at the time of the transaction at 10.41:14 am. Instead, the circumstances leading up to the final sale of the MIE bonds have to be considered, and not just the situation at the time of the actual transaction.[note: 222] Specifically, as s 201(b) was worded very broadly, and covers any act which the accused engaged in that was “in connection with” the sale of the MIE bonds, s 201(b) was not limited or proscribed to only the act of the accused done at the time of the actual sale transaction.

284    The Defence argued that the Prosecution has intermittently conflated the notions of “best execution” with that of “highest price”, “highest available price” and “highest available executable price”, submitting that the accused’s duty, if any at all, was only one of obtaining best execution, which requires a consideration of various factors besides price, including the likelihood of execution and settlement, the size and nature of the order, the character of the market of the security (e.g. volatility and relative liquidity), the amount of bonds concerned, the circumstances and trading strategy of the trader or fund manager selling the bonds, the market context and the circumstances of the case. This means that the duty of best execution, when obtaining a bid price, is not an exact science, and is a product of the discretion, judgment, and strategy of a fund manager keeping in mind the nature of the MIE bonds as OTC instruments, and the situation of the financial markets as at January 2016.[note: 223]

285    Having carefully considered both parties’ arguments, and the evidence of Ms Ng the representative of SCL, the evidence of the experts, Ms Low and Mr Cheong, as well as the evidence of the other witnesses involved in trading such as Mr Lai and Mr Reshad, and importantly, also the evidence of the accused himself, it was clear that without exception, the evidence showed that the duty expected of the accused, as the sole portfolio manager dealing with and selling the MIE bonds from SP1 on 19 January 2016, was that of obtaining the highest possible price for the MIE bonds.

(a)     First, as stated earlier (see [262] – [264] above) I was of the view that this duty arose from the position of the accused in the capacity of a fiduciary, who was entrusted with full discretion and control over dealings with the MIE bonds in SP1. Notably, as a portfolio manager/sole trader of the MIE bonds on the date in question, the accused had voluntarily assumed full management and decision-making over how, when and to whom the MIE bonds, and he had an obligation to act in good faith for the benefit of the investors, and certainly not to profit at their expense. Further, in the context of the accused’s role in managing the fund and its assets entrusted to him, it was both objectively clear and also subjectively obvious to the accused, that how he dealt with these assets would have a direct impact on the interests of the investors who had put money into the fund. Thus, I accepted that he had a duty to sell the bonds at the highest available price for the benefit of the investors. This was broadly in line with his role and obligations as a fiduciary (see [28] – [30] of Zhou Weidong), and also the obligations identified in Snell’s Equity for a fiduciary not to be swayed by considerations of personal interest, or to misuse his position for his personal advantage (see [249] above).

(b)     Second, in any event, I agreed with the Prosecution that the accused’s duty to sell the MIE bonds at the highest available price was clearly and logically the only objective he should have when selling the assets of a fund that he was managing, especially when he had taken upon himself the sole role of selling the MIE bonds on the day in question. That this was what he needed to do, was evidenced by the fact that he himself claimed to have been trying to seek the highest available price to sell the bonds to a counterparty, or to use the highest bid price that he could get from them as the bid price for the passthrough. In short, by his own words and his alleged behaviour, the accused was aware of his duty to get the highest possible price for SP1 and its investors (see [266] – [269] above).

286    While the Defence argued that the Prosecution (and its experts) had used a variety of different terms to characterise the duty incumbent on the accused, suggesting inconsistency in the approach, I was of the view that from the accused’s own evidence, where he admitted that he had a duty to sell at the highest available price, it was clear that the accused was fully aware of what was required of him, and hence his defence could not be said to have been in any way prejudiced, nor was the accused confused about what was expected of him, even if the Prosecution witnesses or parties had not used the exact same terms at the trial to describe the duty reposed on the accused.

287    As the sole person managing the fund, and the only person carrying out the process of sale (and determining the time, date, price, method of sale and buyer), the duty incumbent on the accused was clearly that of selling the MIE bonds at the best available price. Thus, by intentionally carrying out the act of sale at lower prices knowing that he would thereby cause loss to the investors or financial gain to himself, this was clearly in breach of his duty owed to the investors. Indeed, that this duty was clear to the accused was evidenced not only by his oral evidence but also by the rationale he gave for using Pareto on 19 January 2016 to facilitate the passthrough at the price offered by Haitong, which the accused claimed was the highest available price (that he knew of) at the time of the transaction.

288    Having thus established that the accused was required to sell the MIE bonds at the highest available price, the remaining issue to decide was whether he carried out his duty, and more importantly, whether his actions in the circumstances were acts that were likely to operate as a fraud on the investors of SP1, particularly as he was selling the MIE bonds to SP5, which was a fund which he had an overwhelming majority interest in on the date of sale.

II) The accused knew of higher executable bids for the MIE18 and MIE19 bonds but sold them at lower prices.

(1)    The accused knew that Morgan Stanley’s bids were executable

289    The Prosecution argued that on 19 January 2016, by 10:15:21 a.m. at the latest, the accused knew that the higher bids made by Morgan Stanley for the MIE18 and MIE19 bonds were executable because he responded to Ms Goyal of Morgan Stanley regarding her bids. Yet he ultimately chose not to sell the MIE bonds to Morgan Stanley. This was even though he also knew the prices offered by Morgan Stanley were the highest available prices for the MIE bonds that he was seeking bids for.

290    The relevant chats setting out the accused’s interaction with Ms Goyal of Morgan Stanley between 10:00:23 a.m. to 10:23:42 a.m. on 19 January 2016 (P4) which I had set out earlier, are reproduced again below for convenience (with the equivalent Singapore time inserted in brackets). I have also highlighted some aspects of their interaction in bold for emphasis.

P4 – main chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes

01/18/2016 21:23:42 (01/19/2016 10:23:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says Wei please refresh before trading



291    From the table above, it should be noted that after the accused sent out a blast message to the 11 counterparties (at 10:00:23 a.m. and 10:00:44 a.m.), Ms Goyal had responded almost immediately to him (see also Annex A of the DCS).

292    Within a short time thereafter, she had also specifically engaged the accused by way of a (one-on-one) side chat to discuss about her bid for the MIE bonds. Her reason for doing so was because of “noise on the main chat”. Again for convenience, I reproduce the relevant portions of P64, which is the one-on-one chat between the accused and Ms Goyal (with the equivalent Singapore time in brackets).

P64 – one-on-one chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:02:18 (01/19/2016 10:02:18 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

probably easier here given the noise on the main chat

01/18/2016 21:02:45(01/19/2016 10:02:45 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

ok

01/18/2016 21:08:07 (01/19/2016 10:08:07 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

assume nothing ?

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

ive put the bids there already



293    It should also be noted that Ms Goyal of Morgan Stanley was the first of the 11 counterparties that responded to him. She was also the first to make a bid for the MIE bonds (at 10:01:24 a.m. – see P4). Additionally, she initiated the side chat with the accused (see P64). All these acts on Ms Goyal’s part provided clear evidence that Ms Goyal was interested in the MIE bonds that the accused was seeking bids for. This fact would not have been lost on the accused.

294    Subsequently, in the one-on-one chat at 10:08:07 a.m., probably because of the accused’s lack of response, Ms Goyal asked the accused “assume nothing”. To this, the accused responded at 10:08:53 a.m. and 10:08:56 am, and told Ms Goyal that he needed a best bid from her for the whole block. He also specifically told her to use the main chat. To these requests of the accused, Ms Goyal responded at 10:09:11 a.m. that she had put the bids there (in the main chat) already.

295    These series of messages in the one-on-one chat (P64) showed that:

(a)     Ms Goyal had already posted a message to the accused that she was starting the one-on-one chat because of the noise (i.e. distractions) on the main chat, and the accused had expressly acknowledged her intention (and interest).

(b)     To her prompt, the accused subsequently responded to her between 10:08:53 a.m. to 10:09:02 a.m. to indicate that he needed her best bid for the whole block and that the bid should be made in the main chat.

(c)     Ms Goyal then replied almost immediately at 10:09:11 a.m. to say that she had done precisely what he asked her i.e. posted her best bids for the whole block in the main chat.

(d)      Thus, logically, the accused would have known to look at the main chat for Ms Goyal’s best bid for the MIE bonds since she was responding precisely in the way that he had asked her to.

296    The main chat between the accused and Ms Goyal of Morgan Stanley, which was out at [290] above is reproduced again for easy reference.

P4 – main chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes



297    These series of messages show that:

(a)     Ms Goyal was the first of the 11 counterparties, whom the accused had expressly sought out, to express interest in the MIE bonds. And they showed that she responded to him within seconds of his request.

(b)     Ms Goyal was also the first of the counterparties to make bids for the MIE bonds offered by the accused. This was done at 10:01:24 a.m., or less than a minute after he had posted his request for bids.

(c)      Her bids (“Miehol 18 - 33/ miehol 19 - 32/”) were also unqualified and made no changes to the quantum of the bonds that the accused had asked for. This was in contrast to the first bids made by Mr Ray Xie of Haitong (which was made a few minutes after than Ms Goyal’s bids) where he had made bids for lesser quantities of 1 million each of MIE18 and MIE 19 bonds (see extract of P6 below), rather than for the 2.5 million of MIE18 bonds, and the 1.5 million of MIE 19 bonds that the accused had sought bids for.

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(d)     Further, in response to the accused’s request that he had made in the side chat at 10:09:11 a.m. (P64) where the accused had specifically asked Ms Goyal to post her bid for the whole block in the main chat, Ms Goyal did precisely this when she reposted the bids “Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS” at 10:09:34 a.m. in the main chat.

298    It was thus clear that by the bids she made at 10:01:24 a.m., which she reposted at 10:09:34 a.m., Ms Goyal was posting her (unqualified) bid for the MIE bonds that he sought bids for, and she was doing so specifically in response to the accused’s request and as per his instructions for her to post her best bids in the main chat for the whole block. Clearly, Ms Goyal’s bids were for the precise quantities of MIE bonds that the accused was seeking bids for, and the accused would have known of this since she was doing exactly what he had asked her to do.

299    While the accused tried to refute this obvious conclusion by claiming that “… these two are different chats”,[note: 224] and suggested that his chats with Ms Goyal, in P64 and P4 should not be looked at as an entire conversation,[note: 225] I agreed with the Prosecution that his claims was illogical given that the two chats took place on the same morning, concerned the same bonds, and were carried out between the same two parties, i.e., the accused and Ms Goyal. Both chats were also clearly and solely in connection with the accused’s request for bids for the MIE bonds, which was the only item that the accused was dealing with Ms Goyal that morning (since she had already indicated that she was not bidding for the Indika bonds).

300    Moreover, it was clear that up to that point, the highest bids, and arguably the greatest interest in the MIE bonds, were being shown by Ms Goyal. In fact, she even took the trouble to set up a one-on-one chat with him (to get away from “the noise” in the main chat) to discuss about these very MIE bonds. Thus, the accused’s claim that he did not pay attention to her (or her bids) was completely illogical, if he was really trying to sell the MIE bonds at the highest available price as claimed.

301    Further, it should be noted that the accused had at 10:09:02 a.m. in the one-on-one chat (P64) with Ms Goyal – directed her to “pls use the main chjat (sic)”. This request from the accused made it clear that up to that time (10:09:02 a.m.), the accused was not only looking at the one-on-one chat (P64), but he was also looking at the main chat (P4) and would have seen all the messages on both chats. He had then wanted her to concentrate on making the bids on the main chat (P4) presumably because he, and she, would then focus on the discussion and deal with the MIE bonds on the main chat, and not be distracted by other chats.

302    Thus, after he had sent this message to Ms Goyal at 10:09:02 a.m. to use the main chat, it would be expected that he would be even more focused on the discussions in the main chat (P4) with her. Thus, when Ms Goyal reposted her best prices for the MIE bonds at 10:09:34 a.m. on the main chat (P4), which she did on his instructions, he would have seen these bids, at or around this time.

303    In short, the accused would have had a complete picture from around 10:09:34 a.m. at the latest, of the repeated (highest) bids made by Ms Goyal for the MIE bonds. The bids were, in any event, always on the main chat (P4) that he had directed Ms Goyal to post on.

304    I now address the accused’s claim that the prices that Ms Goyal reposted at 10:09:34 a.m. for the MIE bonds did not contain sizes, and hence it was not clear to him that her bids were executable.

305    In this regard, his evidence was that even though he had seen Ms Goyal’s 10:09:34 a.m. bid, which he claimed to have seen only around 10:15:21 a.m., he was uncertain if Ms Goyal’s bids were firm bids for the full block of the two MIE bonds. Because of this alleged uncertainty, he sought clarification from her at that time. To bolster the accused’s claim, the Defence pointed out that Ms Goyal herself admitted that it was possible the accused did not understand from her message that her bid was for the full block of MIE bonds. The Defence also pointed out that seeking clarification in this manner was something that the Prosecution’s expert witnesses agreed was reasonable to do.

306    In response, the Prosecution highlighted the accused’s interactions with Pareto contradicted his claims that he was not sure if the Morgan Stanley bids from Ms Goyal were executed. Specifically, the Prosecution compared the accused’s responses and interaction with Mr Reshad of Pareto in his dealings in the two chats between them (see extract of P72 below ), and his dealings with Ms Goyal over the same MIE bonds (in the two chats P4 and P64).

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307    As could be seen from the extract above, Mr Reshad’s bids for the MIE18 and MIE19 bonds from SP1 similarly do not state the size of these bonds that he was bidding for. Yet, the accused accepted the bids when he was selling the MIE bonds to Mr Reshad on behalf of SP1, even though no bond size was stated. The Prosecution argued that the conclusion to be drawn from the above interaction between them was that the accused knew that bids made this way (i.e. bids which only indicate the name of the bond and the price but did not specify the bond size) were clearly executable.

308    Thus, when the accused saw the unqualified bids by Ms Goyal in the main chat P4 at 10:01:24 a.m., which she then reposted at 10:09:34 a.m., and where the bids also only stated the name of the bond and the price but did not specify the bond size, the accused would similarly have known that Ms Goyal’s bids were for the same size of bonds that he was asking her (and the other counterparties) to bid for. Thus, the accused would also have known that these bids made by Ms Goyal at 10:01:24 a.m., and which she reposted at 10:09:34 a.m., were executable.

309    In response, the Defence argued that the interactions between Mr Reshad and the accused were different from those between Ms Goyal and the accused because, in the case of the former, it was a passthrough trade, while the latter was not. In this regard, the Defence argued that in the case of the former “… both the accused and Pareto were aware that the premise of Pareto’s involvement was as an intermediary to facilitate a passthrough trade of a known and specific block of MIE bonds from SP1 to SP5”[note: 226].

310    However, with respect, there appears to be no indication from Mr Reshad’s evidence that he was even aware of the actual amount of MIE bonds to be traded via the passthrough prior to his actual dealing with the accused via the chats in P72 on 19 January 2016. In other words, what Mr Reshad did – when he reflected the price that he was bidding for the MIE bonds from SP1 at 10:37:27 a.m. (without specifying the quantities of the bond in his bid) - was no different from how and what Ms Goyal repeatedly did when she similarly bided, much earlier and at a significantly higher price, for the same two bonds.

311    I would add that, contrary to the Defence’s argument in DRCS,[note: 227] the fact that Mr Reshad had added the word “FIRM” in his bid when he was buying from SP1 (Chat A in P72) was not a critical consideration in whether the bid could be regarded as executable since, as rightly pointed out by the Prosecution, the word “firm” did not appear in the accused’s own bid (made on behalf of SP5) to buy the MIE bonds from Mr Reshad, nor did the word “firm” appear in Haitong’s bids to SP1, even though the accused had always taken the position that the Haitong’s bids were the ONLY executable bid at 10:41:14 a.m. when the passthrough trades were initiated.

312    All in all, I agreed with the Prosecution that by the approach the accused took when selling the MIE bonds to Mr Reshad, it was clear that the absence of the bond size in Mr Reshad’s bids did not render the bid non-executable as the bid was made in response to the sizes of the bonds already specified in the request for bids. Applying the same logic to the bids by Ms Goyal, even if the accused only saw Ms Goyal’s bids as late as 10:15 a.m., he would have known that her bids were executable. He would also have known that they were the highest available bids for the MIE bonds that he was allegedly in such a hurry to sell.

313    I further noted that the evidence of the Prosecution experts was also that the bids posted by Ms Goyal for the MIE bonds - specifically in response to the accused’s request for bids - were executable. That no contrary expert evidence was produced, nor any evidence from the witnesses (such as Ms Goyal, Mr Reshad and Mr Lai, all of whom traded bonds) was given which contradicted this, fortifies the opinion of the two Prosecution experts on this issue.

314    In addition, while the accused asked questions of Ms Goyal in the main chat (P4) at 10:15:21 a.m. and 10:15:29 a.m. about her bids for the MIE bonds, the Prosecution submitted that it was actually unnecessary for him to have done so because he must have known that Morgan Stanley bids were executable.[note: 228] In any event, the following extracts of the Notes of Evidence also showed that the accused was aware of the bids by Ms Goyal of Morgan Stanley’s bids that were made at 10:01:24 a.m. (and which were reposted at 10:09:34 a.m.), although he claimed to have only seen them only at 10:15 a.m.

Q:    So let me repeat. Essentially her bids at 10:09:34 for both MIE 18 and MIE 19 were in response to your seeking of bids at 10 a.m. for the MIE 18 bond of 2.5 million, for the MIE 19 bond of 1.5 million, as well as for the Indika of 2 million. Do you agree it was in response to your seeking of bids at 10 am?

A: That’s correct. I think so.

…

Q:    … Let me put that question to you again so that you be not confused. Essentially I put it to you that when you saw the 10:09:34 prices by Morgan Stanley Megha Ms Goyal you knew that they were in response to your 10.00 message seeking for bids for the full sizes of the MIE 18 and MIE 19 bonds; that’s my position. Do you agree or not?

A:     Yes, I agree but, to clarify, I saw it at 10.15 of the 10.09 prices, just to clear up on the question.

[emphasis added]

315    Thus, to sum up, the evidence of the accused fortified my earlier conclusion that the accused would have known, by 10:15 a.m. at the latest, of the Morgan Stanley bids (made at 10:01:24 a.m., and again at 10:09:34 a.m.), and that he knew that they were executable.

316    The accused also claimed that he responded to Ms Goyal’s message of 10:09:34 a.m. because he had changed his mind from his initial request for bids for a block of three bonds to just bids for the two MIE bonds, and that his message made at 10:15:29 a.m. to Ms Goyal of “miehol 18s 2.5 mm, miehol 19s 1.5 mm?” in the main chat (P4 – see [296] above) was made because he was clarifying that he wanted bids for the MIE bonds only.

317    However, I agreed with the Prosecution that this claim does not make sense because the accused’s two questions made at 10:15:21 a.m. and 10:15:29 a.m. respectively to Ms Goyal, flowed immediately from Ms Goyal’s reposted prices for the two MIE bonds. Moreover, the first of his questions was made at 10:15:21 a.m. where he asked if her posted prices were for the “whole block” i.e. for the whole size of the MIE bonds she had given prices for. The accused’s next question, which he made eight seconds later at 10:15:29 am, clarified his position and also specified the sizes of the MIE bonds that he was referring to in his earlier question. I reproduce the relevant extracts of P4 again.

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA Says yes



318    From the above, it could be seen that when the accused saw Ms Goyal’s bid of 10:09:34 a.m., Ms Goyal was giving her best bid for the MIE bonds that the accused had sought bids for, and that Ms Goyal’s bids were executable.

319    Separately, the accused claimed that he did not take the prices posted by Morgan Stanley at 10:09:34 a.m. into account when he saw them, purportedly around 10.15 a.m. Purportedly on that basis, he then posed the question “miehol 18s 2.5mm, miehol 19s 1.5mm?” at 10.15:29. His evidence was as follows:[note: 229]

Q.    Well, you said earlier you don't -- "I don't think so much about what the other parties have said." But, you see, your question at 10:15:29 was about the same two MIE bonds of which Morgan Stanley Megha Ms Goyal had given prices for at 10:09:34 and you asked for the sizes, whether 2.5 million MIE 18 and 1.5 million MIE 19. Therefore, your question at 10:15:29 to Morgan Stanley Megha Ms Goyal was whether her prices for the MIE 18 and MIE 19 were for the sizes you asked for. Do you agree or disagree?

(Pause)

A.    No, I think -- I think you're thinking I'm asking the question with reference to the price. I'm -- what I'm saying here is that I'm not asking that question with reference to the earlier price. I'm asking a question I'm looking for the price at that point of time for this bond and this size. So I'm asking a question without any reference to the 10.09 that she's saying. I'm asking her by this statement give me a price for the MIEHOL 18s and MIEHOL 19s --

320    However, the accused’s claim in court – effectively that he was not making reference to Ms Goyal’s 10:09:31 a.m. message when he engaged her in the chat at 10:15:29 a.m. – does not make any sense, since he had just, only seconds earlier (at 10:15:21 a.m.) posed a question (“for whole block?”) to Ms Goyal’s very same message (see [317] above).

321    The Prosecution also pointed out to the accused that his position in court was also different from his earlier instructions to a witness that the Defence had originally intended to call, one Mr Porcelli. This could be seen from Mr Porcelli’s report (report D35i – cited by the Prosecution), where the accused had informed Mr Porcelli that “when [he] asked Morgan Stanley’s Ms Goyal at 10:15:21 and at 10:15:29, [he was] asking her about the prices she had given at 10:09:34”[note: 230] (emphasis added)

322    Similarly, at paragraph 13(a) of a report (D34i) from another witness whom the Defence had originally identified as its expert witness, one Mr Hidetaka, the accused had informed Mr Hidetaka that “At 10:15:21 a.m. and 10:15:29 am, [the accused] sought confirmation from Morgan Stanley that its bids were for the whole block of 2.5 million notional value of MIE18 and 1.5 million notional value of MIE19”. Indeed, the accused confirmed that his instructions to Mr Hidetaka were that when he asked Ms Goyal his questions at 10:15:21 a.m. and 10:15:29 a.m. in the main chat with her (P4), he was asking her whether her prices for the MIE 18 and 19 of 10:09:34 were prices for the 2.5 million of MIE 18 and 1.5 million of MIE 19.[note: 231]

323    In short, what the accused said in court, and what he said to the two witnesses that he originally intended to call as his expert witnesses, were at odds with one another. Indeed, contrary to the accused’s court testimony that his questions posed at 10:15:21 a.m. and 10:15:29 a.m. were not made in reference to what Ms Goyal had stated at 10:09:24 a.m., this was NOT what the accused told his own experts earlier. It can only be concluded that despite his claims in court otherwise, his messages at 10:15:21 a.m. and 10:15:29 a.m. to Ms Goyal in P4 were indeed made in response to Ms Goyal’s reposting of her bids at 10:09:24 am.

324     Further, the totality of the evidence showed that the accused knew – by 10.15 a.m. at the latest - that the Morgan Stanley’s bids for the two MIE bonds, which Ms Goyal posted as early as 10:01:24 am, reposted on 10:09:34 am, and further confirmed to him again at 10:15:42 am, were executable bids. Yet the accused chose not to sell the MIE bonds to Morgan Stanley or used Morgan Stanley’s bids as reference prices for the subsequent passthrough trades.

325    I agreed with the Prosecution that given the following factors, namely:

(a)     the accused’s alleged urgency to sell the MIE bonds on the morning of 19 January 2016 in view of the supposed dire state of the market and the downgrade of the MIE bonds, as well as the pressure placed on him by SCL to redeem the bonds by the end of January 2016;

(b)     the supposed short time that the accused had to sell the bonds on 19 January 2016 itself due to his apparently busy schedule on that day caused by the many conflicting activities that were supposed to take place; and

(c)     the clear interest in the MIE bonds, and the obviously highest bids made by Ms Goyal of Morgan Stanley for them (at 10:01:24 am, reposted at 10:09:34 am, and further confirmed at 10:15:42 am), in contrast to the general lack of interest from most of the rest of the 11 counterparties that the accused engaged in that day, as well as the dismal other bid by Haitong for the MIE bonds,

it was obvious that the accused should have sold the bonds to Ms Goyal at the latest by 10:15:21 a.m.

326    Alternatively, if the accused should still have wanted to proceed with the passthrough to sell the MIE bonds to SP5, which was the fund that he had the clear majority interest, then he should have sold the MIE bonds at the price offered by Ms Goyal when Mr Reshad said that he was ready to do the trade at 10:18 am. Instead, what the accused ultimately did was to use Haitong’s prices for the passthrough trades for the MIE bonds from SP1 to SP5, even though the accused knew that these bid prices from Haitong were “too low”. His sentiments towards the Haitong bids could be seen from his answers given in his statements to the CAD:

Question 671:

... [S]o when did you confirm that SP5 has to be activated as a backup to buy the 2 Miehol bonds?

Answer:

On 19 January 2016 itself, before I had the Bloomberg conversation with Haitong.

Question 672:

You already decided and told yourself that SP5 will need to be activated for the cross trades before having the Bloomberg conversation with Haitong?

Answer:

Yes.

Question 673:

What was the purpose of asking Haitong for the quote then?

Answer:

There is a possibility of selling to Haitong.

Question 674:

Why did you not sell to Haitong?

Answer:

I don’t want to sell the Miehol bonds at the price of 25 for MIE18 and 20 for MIE18.

Question 675:

Why did you not want to sell at the price of 25 for MIE18 and 20 for MIE19 to Haitong?

Answer:

The price was too low...”

[emphasis added]



327    There was thus clearly no justification for the accused not to have sold the MIE bonds to Morgan Stanley by 10:15:21 a.m. at the latest, but to instead carry out the passthrough trades at the much lower Haitong prices subsequently. There was especially no excuse for him to have done so when he was clearly and knowingly benefitting a fund i.e. SP5 where he had overwhelming direct shareholding and interest. Yet the accused did precisely this, at the expense of a fund SP1 that he was not a shareholder of. His actions resulted in a loss to the SP1 investors whose interest he was supposed to be protecting and advancing.

(2)    The accused always intended to carry out the passthrough trades and did not engage in genuine price discovery before that

328    The accused also claimed that he set aside the period from 10 to 10.30 a.m. on 19 January 2016 to engage in price discovery. However, the Prosecution disputed this claim arguing that the accused never engaged in genuine price discovery for the MIE bonds before he sold them to SP5 and that he also had no basis to expect that Mr Reshad would do price discovery for the MIE bonds.

329    I will now deal with the issue of whether the accused actually engaged in any genuine price discovery.

(A)   The evidence contradicted the accused’s claim that he conducted genuine price discovery

(I)   THE ACCUSED DID NOT SELL TO COUNTERPARTIES THAT GAVE HIGHER EXECUTABLE BIDS FOR THE MIE BONDS

330    The Prosecution highlighted that the accused’s evidence was that for genuine price discovery, the intent must be to seek the highest available price to sell the MIE bonds. However, the accused did not do this in the morning of 19 January 2016. In this regard, the Prosecution pointed out that on that morning, despite claiming to have set aside time from 10:00 – 10:30 a.m. purportedly for price discovery, the accused did not sell the MIE bonds to counterparties which had provided him with executable bids (i.e. Morgan Stanley, SC Lowy and BNP), which were all higher than Haitong’s bid prices.

331    In this regard, if the accused had been conducting genuine price discovery during that time, he ought to have sold the MIE bonds (either one or both) to any of these counterparties or used their prices as reference for the passthrough trades when he eventually sold the bonds to SP5. Instead, the passthrough trades were conducted by the accused at significantly lower prices.

332    As regards the Prosecution’s argument, I agreed that there were clearly executable bids from counterparties that the accused could and should have sold the MIE bonds to rather than executing the passthrough trades. Instead, in deciding to proceed with the passthrough trades in the manner and at the prices that he did, the accused sold the MIE bonds at much lower prices to a fund (SP5) in which he had a clear personal interest and a huge personal shareholding in. In this regard, the bids from any of the three counterparties, Morgan Stanley, SC Lowy or BNP would clearly have resulted in much higher prices and benefits for the SP1 investors. I elaborate on this below.

(i)    Morgan Stanley’s bids for MIE18 and MIE19 bonds

333    As regards the bids by Morgan Stanley, this has been discussed exhaustively above. To summarise:

(a)     The accused could not explain why he did not check or transact with Ms Goyal of Morgan Stanley where the prices were posted on the main chat, despite her having given the highest bids that he had known at that time (10:15 a.m. at the latest). This was even more unfathomable when it was the accused who had deliberately told her (at 10:09:02 a.m. on the one-on-one chat) to use the main chat to post /discuss the bids for the whole block of MIE bonds that he was selling.

(b)     Indeed, in response to his instructions, Ms Goyal had faithfully complied and replied to him seconds later (at 10:09:11 a.m. on the one-on-one chat (P64) to say that she had “put the bids there [in the main chat] already” (see below).

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA Ms Goyal, MORGAN STANLEY ASIA says:

ive put the bids there already



(c)     Yet the accused did not follow up on those highest bids made at that time.

ii)    SC Lowry’s bid for MIE19 bond

334    As for the SC Lowy bid, this was made for the MIE19 bonds at 10:16:18 a.m. (see P52 – chat message with SC Lowy reproduced below)

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(a)     Thus, as far as SC Lowy’s bid was concerned, the accused did not dispute that it was executable for the MIE19 bond, although he said that while it was possible to sell the MIE19 bonds to SC Lowy (which would have been at a higher price than the passthrough price that he eventually sold the MIE19 bond to SP5), the accused declined to sell to SC Lowy because he wanted to sell the MIE bonds as a block, allegedly because if he only sold the MIE19 bonds to SC Lowy, he may not have been able to sell the MIE18 bonds.[note: 232]

(b)     However, with respect, the accused’s claim makes no sense since the accused could have subsequently bought the remaining MIE18 bonds for SP5 via the passthrough, even if he had sold the MIE19 bonds to SC Lowy at the higher price of 28.5. In such a scenario, the price he used for the passthrough trade for the MIE18 bonds, even if there was a genuine basis not to sell to Morgan Stanley or BNP at their higher prices, could still be the price offered by Haitong. This would still result in the SP1 investors being better off than they would be when the accused used the Haitong prices to buy the MIE bonds from SP1. Thus, selling to SC Lowy in such a scenario would at least be more closer aligned with the accused’s duty, and supposed intention, of selling the MIE bonds (at least the MIE19 bonds) at the highest available prices.

(c)     To do otherwise and proceed with the passthrough trades for both the MIE bonds at the Haitong prices, would be at the expense of the SP1 investors because they would have obtained more in sale proceeds for the MIE19 bond at least, if SC Lowy’s bid had been used. The accused admitted as much in court.[note: 233]

COURT:

I think the point he's trying to make and it's been asked quite a lot of times is you could have used the higher price or SP5 could have offered a higher price to essentially to SP1 through Pareto and SP1 will still make more money. I think that's in essence what he's trying to say. So why didn't you do that? That's really what he's asking.

A.

Your Honour, I don't do that because I need to take the

price as a whole, as both --

COURT:

Why? SP1, if your idea is for SP1 to get highest possible price, why can't you do that? That's fundamentally what he's asking, he's been asking and you're not really answering. You know, at some point we have to deal with it and move on.

A.

I'm sorry, your Honour. It's not the highest available price for that bond. It's the highest available price for what I'm trying to sell, which is the block. So I did not use this price by itself for the 19s because this is not -- this may not result in the highest available price for the block.

COURT:

Fundamentally the point is this: if you had used the higher price, 28.5, for MIEHOL 19 and still used Haitong's lower price for MIEHOL 18 -- "you" meaning SP5 -- would SP1 have made more money or less money? Do you understand the question?

A.

SP1 would have made more money.

…

DPP:

Therefore, if you had used the SC Lowy price for MIE 19 and sold it using that price to SP5, in contrast with the ultimate price that was sold to SP5 for the MIE 19, SP1 investors would have gotten $99,375 more. Do you agree?

A.

I agree.

[emphasis added]



335    As for counsel’s argument that “if [the accused] were to only sell the MIE19 bonds to SC Lowy, he would have to re-do price discovery for just the MIE19, which would have gotten different responses and different prices than when he was doing price discovery for the MIE bonds as a block”[note: 234], with respect, this is not an argument consistent with the accused’s own actions.

(a)     In this regard, when the accused first sought a bid from the 11 counterparties (at 10:00:23 a.m. and 10:00:44 a.m.) it was for THREE bonds – namely MIE18, MIE19 and Indyij23. In other words, he was doing price discovery for a block of three bonds at that time. Three of the counterparties (Haitong, Morgan Stanley and SC Lowy) reverted with bids ONLY for one or two of the MIE bonds, with none making any bid for Indyij23.

(b)     In the case of Haitong, it only bided for the two MIE bonds. Yet the accused NEVER proceeded to re-do price discovery for the two MIE bonds alone as a block when his original request for bids was for a block of three bonds. Instead, the accused used the Haitong’s prices, which were for the two MIE bonds only, to carry out the passthrough trades. In other words, the accused changed his plan by discarding the INDYIJ23 bonds from the block that he was trying to sell.

(c)     Further, the Prosecution pointed out that the accused himself had conceded that there was nothing to stop him from selling the MIE19 bonds alone to SC Lowy, or using the SC Lowy bid price as market context for the passthrough trades for MIE19 bonds,[note: 235] and then going on to separately sell the MIE18 bonds to other counterparties, or to then sell them to SP5 at the final price that he actually paid via the passthrough (i.e. at 25.375).

(d)     In short, it was entirely possible for the accused to have sold the MIE19 bonds to SC Lowy at the higher price that SC Lowy offered, and then carry out the passthrough trade with only the MIE18 bonds, without having to re-do the price discovery for the MIE18 bond alone. Alternatively, the accused could also have used the higher SC Lowy bid prices for the MIE19 bonds, when he conducted the passthrough trade for both of the MIE bonds. Either way, he would have made more money for the SP1 investors.

(e)     Yet the accused declined to take either of these actions that would have benefitted the SP1 investors. Instead, he deliberately chose to carry out the passthrough trade for the MIE19 bonds by selling them at a lower price to SP5. By doing so, the accused personally benefitted from this action, as he was the overwhelming majority shareholder of SP5 which was paying the lower price for the MIE bonds. His actions were also done to the detriment of the SP1 investors and caused loss to them.

(f)     I would also add that there was never any requirement for the MIE bonds to be dealt with as a “package” rather than individually and that the accused himself was aware of this.

(i)       This was in fact seen from the accused’s own actions when he was conducting the passthrough.

(ii)       In this regard, as seen from P72, when the accused was representing the buyer (SP5) in his dealing with Mr Reshad, the accused had revised his bid for the MIE18 bonds only (at 10:39:55 a.m.) without making a corresponding change to his bid for the MIE19 bond, even though the bid for the MIE19 bond was originally made together with the bid for the MIE18 bond at 10:36:13 a.m.

(iii)        This showed clearly that the prices and treatment of the two bonds could be delinked, and were in fact, dealt with independently of each other even by the accused himself. It also showed that the bid price of one was not dependent on the bid price of the other.

(g)     As for the argument made by the Defence that selling bonds in small pieces would give rise to the impression of dumping, this was clearly not something the accused was concerned with at the time.

(i)       Instead, if this was really the accused’s concern, it made no sense for the accused to have abandoned his initial strategy of selling three bonds and only selling the two MIE bonds, as such an impression of dumping could also be created by such action.

(ii)       Neither would the accused have reached out to as many as 11 counterparties, when the norm appears to be to approach only three to five, as reaching out to so many counterparties surely created the impression of desperation on the part of SP1, and “..actually serves to depress the prices that he's likely to get.”. This was the precise point made by the expert witness, Ms Low (see [67(a)] above).

(h)     In short, since the accused does not deny having seen the SC Lowy bid for the MIE19 bond, the fact that the accused did not use SC Lowy’s MIE19 bid price (at 28.5) which was substantially higher than the 21.875 offered to SP1 via the passthrough (based on Haitong price), discredits the accused’s claim that he was doing genuine price discovery. Instead, if he was doing genuine price discovery to achieve the highest available price, he would at least have used SC Lowy’s bid price for the MIE19 bonds so as to obtain more sale proceeds for SP1 investors (assuming that he really knew nothing about the Morgan Stanley or BNP bids at that time).

(i)     Clearly, the accused could have sold the MIE19 bonds to SC Lowy or used its prices in the passthrough trade for the MIE19 bonds, and still carried out the passthrough trade for the MIE18 bonds, as the decision whether and how to carry out the passthrough trade with the MIE18 bonds was solely his to make. This would at least have been more consistent with his alleged objective of seeking the highest possible price for the MIE bonds for the SP1 investors.

iii)    BNP’s bids for the MIE bonds and the Indika bonds -alleged lack of awareness

336    Finally, I deal with the bids made by BNP.

337    Based on Annex A of the DCS, which was a compilation by the Defence of the chats between the accused and the various counterparties from 10:00:23 a.m. and 10:30:47 a.m., it could be seen that similar to Ms Goyal of Morgan Stanley, Ms Pamela Tsang of BNP was also interested in the bonds that the accused was seeking bids for.

(a)     In this regard, Ms Tsang responded to the accused as early as 10:00:31 a.m. and again at 10:00:55 a.m. and 10:00:57 am, to the request for bids for the bonds. Like Ms Goyal of Morgan Stanley, Ms Tsang also engaged in a one-on-one chat with the accused, again indicating her interest in the bonds that the accused was trying to sell. I set out the relevant chats between the accused and Ms Tsang, with some parts highlighted in bold for emphasis.

01/19/2016 02:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/19/2016 02:00:31 (01/19/2016 10:00:31 SGT) PAMELA TSANG, BNP PARIBAS Says hi mom pls.

01/19/2016 02:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says sorry, i mean bids

01/19/2016 02:00:55 (01/19/2016 10:00:55 SGT) PAMELA TSANG, BNP PARIBAS Says oh !

01/19/2016 02:00:57 (01/19/2016 10:00:57 SGT) PAMELA TSANG, BNP PARIBAS Says sec

01/19/2016 02:11:48 (01/19/2016 10:11:48 SGT) PAMELA TSANG, BNP PARIBAS Says Weiyeh- bear with us- coming right back. just got a few things coming in

01/19/2016 02:12:18 (01/19/2016 10:12:18 SGT) WEIYEH SUN, ONE ASIA INVESTMENT has joined the room

01/19/2016 02:12:22 (01/19/2016 10:12:22 SGT) PAMELA TSANG, BNP PARIBAS received an invite from WEIYEH SUN, ONE ASIA INVESTMENT Says pam

01/19/2016 02:12:22 (01/19/2016 10:12:22 SGT) PAMELA TSANG, BNP PARIBAS has joined the room

01/19/2016 02:12:26 (01/19/2016 10:12:26 SGT) PAMELA TSANG, BNP PARIBAS Says hey

01/19/2016 02:12:32 (01/19/2016 10:12:32 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says can you give me a bid for the whole block?

01/19/2016 02:12:38 (01/19/2016 10:12:88 SGT) PAMELA TSANG, BNP PARIBAS Says which one do u hv a block

01/19/2016 02:12:49 (01/19/2016 10:12:49 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says need to clear

01/19/2016 02:12:58 (01/19/2016 10:12:58 SGT) PAMELA TSANG, BNP PARIBAS Says which name do u own the blcok ? mie 18, 19 or indika

01/19/2016 02:13:03 (01/19/2016 10:13:03 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm

01/19/2016 02:13:11 (01/19/2016 10:13:11 SGT) PAMELA TSANG, BNP PARIBAS Says ah u mean thts the entire position already

01/19/2016 02:13:15 (01/19/2016 10:13:15 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says all three. need a bid yes

01/19/2016 02:13:19 (01/19/2016 10:13:19 SGT) PAMELA TSANG, BNP PARIBAS Says k. seccy

01/19/2016 02:22:17 (01/19/2016 10:22:17 SGT) PAMELA TSANG, BNP PARIBAS Says Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block otherwise, we can bid better for say 500k each and we need an order to work the balance.

01/19/2016 02:33:02 (01/19/2016 10:33:02 SGT) PAMELA TSANG, BNP PARIBAS Says see this?

01/19/2016 02:40:31 (01/19/2016 10:40:31 SGT) PAMELA TSANG, BNP PARIBAS Says *** PAMELA TSANG rang the bell



(b)     Yet again, despite specifically asking Ms Tsang of BNP for a bid for all three bonds at 10:13:15 a.m., the accused claimed that he did not even check with her for the result of his request, or the price of her bids, even though Ms Tsang had clearly and consistently expressed obvious interest in the bonds. In fact, Ms Tsang of BNP made a clearly valid and executable bid at 10.22:17 a.m. (“Mie 18s @ 34/, 19s @ 31.50/, indyij 23s @ 36/ >> this works for entire block”), which the accused admitted in court “looks like a firm bid to me”. The accused, however, claimed not to have seen the bids that she made, before he carried out the passthrough trades at 10:41:14 a.m. [note: 236]

(c)     Again, the accused’s claim about not being aware of Ms Tsang’s bids was unbelievable when one considers that it was the accused himself who had specifically asked Ms Tsang of BNP for a bid for all three bonds, and she had promptly responded to him. In fact, Ms Tsang was the only counterparty to make a bid for all the three bonds that the accused had originally sought bids for. I would add that BNP’s bids were also made when the accused’s price discovery process was taking place in full swing, and hence for him to have claimed not to have known of them simply beggars belief.

(d)     In addition, the accused’s story was made even more unbelievable when one considers that Ms Tsang even made a deliberate and conscious effort to get the accused’s attention when she “rang the bell” at 10:40:31 a.m. before the accused had actually started the sale of the MIE bonds from SP1 to Pareto (which took place at 10:41:14 a.m.).[note: 237] Since the Defence itself had taken the position that the actual price discovery had not ended until the passthrough actually began at 10:41:14 a.m., the fact that Ms Tsang consciously and deliberately alerted the accused before he carried out the passthrough trades with Pareto at 10:41:14 a.m. must have meant that he would have seen and been aware of the higher prices Ms Tsang was offering to SP1 for the MIE bonds. Yet the accused apparently chose to ignore the higher BNP bids and carried out the passthrough trades to the detriment of the SP1 investors, and to the obvious benefit of SP5 (and hence of the accused himself as its overwhelming majority shareholder).

338    I would add that not only had Ms Tsang of BNP rang the bell at 10:40:31 a.m., which would have surely alerted the accused of her interest before he carried out the passthrough trades, even in the case of the other counterparties which put in valid bids such as Ms Goyal of Morgan Stanley, and SC Lowy, those bids and messages would have been highlighted in their chats with the accused, and such highlighting would have resulted in getting his attention.

339    Further, these three counterparties (BNP, Morgan Stanley and SC Lowy), together with Haitong, were the only ones of the 11 counterparties that he engaged with, which had expressed interest in bidding for the bonds that the accused was trying so hard to offload that morning of 19 January 2016.

340    Thus, it was inconceivable that the accused did not see the executable bid of Morgan Stanley (when it was made at 10:01:24 a.m., and then reposted at 10:09:34 a.m., despite the various promptings of Ms Goyal), or the executable bid of BNP (made at 10.22:17 a.m. despite the numerous promptings of Ms Tsang) until after he had carried out the passthrough trades with Pareto at 10:41:14 a.m. The accused’s claim was especially dubious given his assertion that he was doing price discovery specifically during this period of time when they were making their bids to him. Simply put, the accused’s claim of his lack of awareness of these valid bids was completely incredible.

341    While the accused also claimed that it was “impossible to keep track”[note: 238] of the Bloomberg conversations that he had with counterparties, it should be noted that the accused was not exactly a babe in the woods in the field of fund management and trading, and he would have experience in working with and responding to bids and offers being made to him in his role as a portfolio manager who also conducts trades. More importantly, it was the accused himself who had supposedly chosen to do price discovery with at least 11 counterparties in that half hour window, even though the accused’s own evidence was that the norm was for only “two to three counterparties” to be engaged.[note: 239]

342    Quite aside from the fact that such a practice of engaging with as many as 11 counterparties would surely have gone against his admitted concern of giving the impression of a fire sale to others, it was also highly dubious that the accused claimed not to have known of BNP’s firm bid made during the period that he himself set aside for price discovery, and also put into doubt the reasons he gave as to why he did not ‘refresh’ Morgan Stanley bid during the same period of price discovery. It was further unbelievable for him not to have used SC Lowy’s bid for the MIE 19 bonds. Any of these actions would have been more aligned with his claimed objective of seeking the “highest available prices” for the MIE bonds, and yet none of these actions were taken by him.

iv)    Using Haitong’s bid prices for the passthrough made no sense

343    I next deal with the accused’s alleged basis for using the Haitong prices for carrying out the passthrough trades. In this regard, the accused essentially said that at 10:41:14 a.m. the Haitong prices were the only prices he was aware of that were executable for both MIE bonds (as a block), and hence he had used those prices to carry out the sale of the MIE bonds via the passthrough. However, I agreed with the Prosecution that the accused’s alleged claim and his purported reasons for relying on Haitong’s bid prices for the passthrough trades were unbelievable.

344     First, while claiming that “(t)he markets move, things move very quickly”,[note: 240] it was unfathomable for the accused to rely on Haitong’s bids (which were received much earlier) at 10:08:50 a.m. as market context to conduct the passthrough trades at 10:41:14 a.m., given that Haitong’s bids were made over 30 minutes before.[note: 241] Presumably things could have changed by then, especially given the alleged volatility of the market. Indeed, this was clearly the case as other counterparties, like BNP and SC Lowry had in fact made higher bids for one or more of the MIE bonds between the time of Haitong’s bids, and the time the accused carried out the passthrough trades.

345    Moreover, Haitong’s bids made by Mr Ray Xie at 10:08:50 a.m. appear to have been qualified and limited in time, since Mr Ray Xie had explicitly said that his bid prices made at 10:08:50 a.m. were “for now”[note: 242]. Thus, it was inexplicable for the accused not to have checked with Mr Ray Xie whether those Haitong bids were still valid at 10:41:14 a.m. when he purportedly used them as market context for the passthrough trades.

346     Second, if the accused was so careful – at 10:15:21 a.m. and 10:15:29 a.m. – to ask questions about the higher bids that Ms Goyal of Morgan Stanley had made at 10:01:24 a.m. and reposted at 10:09:34 a.m., it was inexplicable why the accused would have no questions about the much lower bids that Haitong made at 10:08:50 a.m., when he decided to carry out the passthrough trades at the much later time of 10:41:14 a.m., using bids that were more than 30 minutes old.

347     Third, it also seemed strange that the accused would be so willing to go ahead with using the Haitong bid prices to carry out the passthrough trades knowing full well that (in his own words) the bids by Haitong were “too low” (see [326] above).

348    All in all, the accused’s actions, more than his words, spoke volumes. It appeared that he was clearly happy to go with using Haitong’s “too low” bids as market context for the passthrough trades, simply because this benefitted SP5 of which he himself was the majority shareholder with almost total ownership of SP5. In other words, he was quite willing to take action that he knew benefited himself, while causing losses to the SP1 investors in the process.

349    In totality, the accused’s actions provided a strong basis for the Prosecution’s argument that “…either he was not serious about selling to the 11 counterparties or he was, in fact, scouting for low bid prices to use as market context for the passthrough trades while ignoring/deflecting higher bids.”[note: 243]

350    Whatever the case, the clear conclusion that one would draw was that the accused never carried out genuine price discovery for the MIE bonds before he executed the passthrough trades. Instead, the latter was done in a manner and at a price that was clearly detrimental to the SP1 investors and of benefit to the accused himself, as the passthrough prices were significantly lower than any of the bid prices from Morgan Stanley, BNP and/or SC Lowy.

(II)   THE ACCUSED’S CLAIM ABOUT SETTING ASIDE 10:00 TO 10:30 A.M. FOR PRICE DISCOVERY WAS UNSUBSTANTIATED

351    Since the accused was “very busy” that morning, and he wanted to sell the MIE bonds as soon as possible, he could (and presumably should) have carried out the passthrough trades by selling to SP5 through Mr Reshad earlier in the morning of 19 January 2016 than 10:41:14 a.m.. In fact, by 10:18:58 a.m. (see P72), Mr Reshad had made clear to the accused that he was “Ready , when you guys are”.

352    The facts certainly did not gel with the accused’s belated claim that he needed to do price discovery for half an hour between 10 a.m. and 10.30 a.m. In this regard, as highlighted by the Prosecution, this claim of the accused was only brought up at the trial during the accused’s cross-examination. The accused also did not raise this claim of price discovery in any of his investigative statements to the MAS.[note: 244]

353    Nor does the claim explain why the accused had to ask for bids from at least 11 counterparties, especially if he had genuine concerns that there would be perceptions of a fire sale or dumping of the SP1 assets, a fear which he claimed was on his mind. As regards the latter concern, it was the accused himself who had pointed out that counterparties “will start to chat [and] speculate among themselves”,[note: 245] and yet he engaged so many of them, who would the speculate on why the accused was even sounding so many of them out. The accused’s actions were especially unfathomable when one considered that it was the accused himself who claimed that the norm was for only “two to three counterparties” to be engaged.[note: 246]

354    The Prosecution thus suggested that the irresistible inference from these facts, and the fact that the accused did not sell at the higher executable prices when they were clearly available for him to trade, must be because the accused was actually utilising the time between 10 a.m. and 10.30 a.m. to fish and search for lower prices as reference points to conduct the passthrough trades. The Defence countered that this suggestion of the Prosecution was “an absurd and far-fetched submission to make”, and argued that this was also not a position the Prosecution had previously advocated.

355    As regards the Prosecution’s arguments on this issue, I noted that:

(a)     With the exception of the accused’s own evidence, there was no independent evidence to show that the accused had even set aside 30 minutes (from 10:00 to 10:30 am) for purposes of price discovery.

(b)     For one, neither Mr Reshad nor Mr Lai testified about this alleged plan of the accused to set aside 30 minutes for price discovery as a prelude to the sale of the bonds. Yet both of them would presumably have been kept in the loop about such a plan (if there was one) since both Mr Reshad and Mr Lai were allegedly integral parties in the plan to liquidate the assets of SP1.

(c)     Nor was there any documentation produced to show that there was such a plan.[note: 247] Yet, the accused was the one who agreed it was “very important [to] keep everything documented” during a liquidation process.[note: 248] In fact, the evidence of Mr Goh, the CEO of OAIP was that he did not even know that SP5 would buy the MIE bonds from SP1, or that the accused had injected US$3 million into SP5 for that purpose,[note: 249] essentially as part of the passthrough plan.

(d)     Further, as highlighted by the Prosecution, it was not put to Mr Reshad that at 10.18:58 a.m. (when Mr Reshad alerted the accused that he was “ready [to trade] when you guys are”) or even before, that the accused had given Mr Reshad the Haitong’s prices (which Mr Ray Xie of Haitong had informed the accused at 10:08: 50 a.m.) as market context for the purpose of Mr Reshad doing price discovery for the MIE bonds.[note: 250]

356    In any event, the idea of carrying out price discovery for 30 minutes from 10.00 to 10.30 am, before initiating the passthrough plan of negotiating and selling the bonds from SP1 to Pareto, and then also negotiating and selling the bonds from Pareto to SP5, would mean that the entire passthrough process would extend beyond 10.30 a.m. Yet going by the accused’s evidence, he was supposed to have closed the trade by 10:30 a.m. before going off for his important meeting that was supposed to start at 10:30 a.m. [note: 251] I reproduce his testimony on this matter.

Q.    And then, after that, had you some more chats with SC Lowy before serial number 101, at 10:30:47, you stated the passthrough trade by giving that message to Mr Reshad. Can I ask you to explain again: why did you have 10.30 as a cut-off time, and why did you start this passthrough trade at this time?

A.    That morning, they -- I had a very important meeting at 10.30, so it was for a pretty big fund. It was a real estate fund that Mr Kelvin Goh and myself were directors of. The shareholders, the directors, the owners, there was a big group of people that came sometime at 10.30, even before 10.30. So the latest, at that point of time, was 10.30 because that was when the meeting started, so I wanted to give myself the maximum amount of time, which is 10.00 to 10.30, see what I could get off the markets, then quickly close the trade and jump into the meeting. So that's roughly why the time constraint I had at that time was 10.30.

[emphasis added]

357    Yet, the accused’s purported urgency that morning of 19 January 2016 to finish with the price discovery and then to transact the MIE bond before the 10.30 a.m. meeting started, was contradicted by the fact that he did not actually initiate the passthrough trade with Pareto until 10:41:14 a.m. Further, he continued his chats with Mr Reshad over matters related to MIE bonds all the way until 11:01:55 a.m. at least, even though the passthrough process completed at 10:44:57 a.m. with SP5 buying the MIE bonds (see P72). By 11:05:11 a.m., this would be long after that very important meeting (starting at 10:30 a.m.) would have begun.

358    Further, if indeed the accused was so busy and so concerned about attending the very important meeting (for matters related to the “pretty big fund” – see [356] above) at 10.30 a.m., and if indeed he wanted to “quickly close the trade and jump into the meeting”, the accused’s price discovery process for the MIE bonds would not have lasted all the way to 10:30 am, since he would then have no time to “close of the trade and jump into the meeting” before the meeting was to begin at 10:30 a.m. Neither would he have continued dealing with the MIE bonds after 10:30 a.m., or sent messages to Mr Reshad as late as 11:01:55 a.m. – see P15 and P72) about this transaction.

359    In short, all the evidence cast serious doubt on the accused’s claim that he had even set aside 30 minutes until 10:30 a.m. for price discovery, or that he was doing genuine price discovery during this time.

360    There were other unexplained and illogical aspects of the accused’s behaviour which made his claim about allegedly setting aside 30 minutes for himself to conduct price discovery even more dubious.

(a)     For one, there was no reason for the accused to have to carry out price discovery himself, or to even to have to personally deal with the sale of the MIE bonds himself, when he could have simply authorised or delegated Mr Lai to do this since the latter could do so if the accused permitted him to. Considering that the accused was supposedly very busy with personal and professional matters to deal with on the morning of 19 January 2016, it made no sense for him to have burdened himself with this task that Mr Lai (if authorised by the accused) could do.

(b)     As to why Mr Lai was not involved that morning, or even why he was not present during most of the interactions with the counterparties, despite being the only other portfolio manager and the person authorised to trade during the entire process (if the accused so permitted), these issues were never explained by the accused. In this regard, in contrast to the accused, Mr Lai clearly did not have as busy a schedule as the accused that morning. For example, Mr Lai apparently did not need to attend that “very important meeting” that was due to start at 10:30 a.m. that the accused was so concerned about. Also, Mr Lai apparently did not need to fly out of the country that day, nor did Mr Lai have a medical appointment to attend to, all of which were tasks that the accused allegedly had to perform within the short space of time on 19 January 2016, and yet have to engage 11 counterparties to sell the MIE bonds that morning.

(c)     Simply put, Mr Lai could have done everything that the accused did to effect the sale of the MIE bonds from SP1, without the time limitations and work/personal constraints and pressure that the accused claimed he was under. Most importantly, unlike the accused, Mr Lai would not have been in a situation of conflict even if the passthrough trade had been conducted by him from SP1 to SP5 via Pareto since Mr Lai DID not have any direct shareholding in SP5. This was in sharp contrast to the overwhelming direct shareholding in SP5 that the accused did on 19 January 2016 (at 94.1% - which does not even include his indirect shareholding of about 4.9% (see [519] – [520] below).

361    Further, as previously discussed:

(a)     Another rather inexplicable aspect of the entire transaction, which was never properly explained by the accused, was why he asked for bids from 11 counterparties, especially if he had concerns about perceptions of a fire sale or dumping. This was especially so when the expert evidence led suggested that there was only a need to engage three to five counterparties (see [66(b)] above), and the accused himself said that the norm was for only “two to three counterparties” to be engaged.[note: 252]. To engage 11 counterparties as the accused did on 19 January 2016, especially when he allegedly had so little time to properly deal with those who may come back with bids or queries, clearly made no sense.

(b)     In addition, it made no sense for the accused not to transact, follow up, or be aware (or so he claimed) of bids made by clearly interested counterparties such as Morgan Stanley, BNP or SC Lowy (in the case of MIE19). Instead, the accused went ahead with the passthrough trades using a bid that was “too low” (by the accused’s own admission), and even “old” (as stated by the Prosecution experts - being a bid given by Haitong at 10:08:58 a.m. (which Mr Ray Xie said were prices “for now”) when the passthrough only started at 10:41:14 a.m.

(c)     Indeed, since the market was very bad, and there was an urgency to sell the MIE bonds which the accused had labelled as toxic and difficult to sell, and since he was very busy that morning (with a very important meeting starting at 10.30 a.m. to attend), it was inconceivable that the accused did not sell the MIE bonds as soon as he received much higher executable bids than those offered by Haitong, if the accused was really seeking to fulfil his duty of selling at the highest available price. In this regard, having received the Morgan Stanely bids (“33 for MIE18”, and “32 for MIE 19”) compared to the much lower Haitong’s bids (“25 for MIE18”, and “20 for MIE 19”), the accused would logically have acted on the Morgan Stanley bids to sell to them, or used them as the market context for the passthrough trades, if he was genuinely interested to sell the bonds at the highest available price for the benefit of the SP1 investors.

(d)     Further, even if the accused had not acted on the much higher Morgan Stanley bids after he received SC Lowy’s bid for the MIE19 bonds (“28.5 for MIE 19”), he should have sold the MIE19 bonds to SC Lowy or used that as market context, since that price was still significantly higher than what Haitong had offered for the MIE19 bonds. Yet the accused eventually used the much lower Haitong prices as market context for his passthrough trades for the MIE19 bonds from SP1 to SP5.

(e)     For the BNP bid, the accused should also have been actively looking out for the bids from Ms Tsang since he was clearly aware of BNP’s interest in the bonds. Yet he totally ignored her (also) much higher bids, this time for the MIE bonds as well as the Indika bonds, despite Ms Tsang specifically drawing his attention to her interest and her bids.

362    All in all, there were many reasons to support the Prosecution’s argument that it was highly doubtful that the accused had even set aside 30 minutes from 10 -10:30 a.m. to conduct price discovery or, if he did do so, to show that he never conducted genuine price discovery during this period.

363    Instead, if at all the accused was genuine in trying to sell the MIE bonds at the highest available price, he would have done so by accepting the bids from Morgan Stanley (or even the bids from SC Lowy or BNP) before the time he finally executed the passthrough trades by selling the MIE bonds at much reduced prices to SP5 (of which he had 94.1% direct shareholding in - see also [519] – [520] below)).

(III)   THE ACCUSED’S TRUE INTENTION WAS ALWAYS TO PASSTHROUGH THE MIE BONDS TO SP5

364    The Prosecution argued that the accused had intended to use SP5 to buy the MIE bonds from SP1 at the outset.

365    To support its argument, the Prosecution pointed to the investigation statement recorded from the accused on 6 February 2018 (P82), where the accused admitted that he had intended to use SP5 to purchase the MIE bonds even before Haitong provided its bid at 10:08:50 a.m. [note: 253]

Q671

… when did you confirm that SP5 has to be activated as a backup to buy the 2 [MIE] bonds?

A

On 19 January 2016 itself, before I had the Bloomberg conversation with Haitong.

Q672

You already decided and told yourself that SP5 will need to be activated for the cross trades before having the Bloomberg conversation with Haitong?

A

Yes

[emphasis added]



366    When confronted with his statement during cross-examination, the accused attempted to distance himself from the answer given in his statement by arguing that he had a different understanding of “activate”: [note: 254]

A    So my understanding of "activate" here was, as I've said earlier, in the early part of 10 o'clock, when I saw the other brokers' responses, it was before Haitong's Bloomberg. So that was my understanding that when was the thought, when was it activated? So -- and earlier on, I said as well that that was a time I said there is a possibility we will activate this SP5.

…

A    …The timing is, as I said, after I saw the brokers, before Haitong, I thought of using SP5. That was when I thought that we will activate this backup plan, because the responses were quite bad from the brokers in general.

367    The Prosecution argued that the accused’s explanation contradicted what he said in his statement (P82), and was also internally inconsistent. Clearly, the accused had changed his explanation in court of “activate” to “possibility we will activate” and “thought of using SP5”, from his earlier version in his statement where he had said that he “will activate this backup plan” even before his conversation with Haitong. Clearly, the account given by the accused in court had changed from what he said earlier in P82.

368    Further, the accused could not even say what his precise plan was that morning of 19 January 2016, in particular, whether his intention was to sell the MIE bonds to the market or not. Instead, he resorted to giving answers like he would sell the MIE bonds to the market if the prices were “fairly high”, and yet not be able to say what was “fairly high”, except that Haitong’s prices were “fairly low”. The Prosecution thus submitted that the simple reason for the accused’s inability to explain the inconsistent and incoherent position he took in court was because the truth was contained in what he earlier said in his statement P82 i.e. that he had intended to use SP5 to purchase the MIE bonds even before Haitong provided its bid at 10:08:50 a.m.

369    The Prosecution also pointed out that the accused had indicated in P82 that he decided to activate SP5 to buy the bonds before his Bloomberg conversation with Haitong because he liked the MIE bonds, and not because he wanted to see how the market reacted to his blast messages seeking bids. This could be seen from his answer given to the CAD in P82:

Q679

Can we [understand] your thinking at that time, on why did you not sell the bonds to Haitong but rather take them on yourself into SP5?

A

I was OK to take on the Miehol bonds at a slightly higher price than what Haitong quoted, because I like the bonds.

[emphasis added]



370    In response, the Defence argued that the accused had made it clear that he intended to use SP5 to purchase the MIE bonds only as a backup if there were no buyers in the market and that “…if there were buyers in the market, we will sell it to the market, if not, then we will do the cross trade.” (see answer to Q599). Further, the accused had stated that the backup plan would be used “If I cannot sell the bonds in the market.” (see answer to Q607). The accused had further mentioned that he had asked Haitong for a quote because there was a possibility of selling to them, but that he had decided not to sell because the price that was bided was “too low” (see answers to Q673 – 675).

371    All in all, the Defence argued that there was no inconsistency with the accused’s testimony at trial from his earlier statement, in that he only decided at 10:30 a.m. on 19 January 2016 that the passthrough trades should be conducted. Moreover, the Defence argued that it was not surprising that the accused could not confirm how “fairly high” a bid would have to be for him to sell the MIE bonds to the market, as the situation was dynamic. The Defence also insisted that “the decision to do the passthrough had nothing to do with [the accused] “wanting” the bonds”.[note: 255]

372    Having carefully evaluated the evidence, I was unable to accept the Defence’s position.

(a)     For one, the accused had said he would sell the bonds to the market if there were buyers and would activate the passthrough as a backup only if he could not sell to the market. Yet, while he agreed that there was (at least) one potential buyer i.e. Haitong that had actually made a bid that he was aware of, he declined to sell to Haitong.

(b)     Instead, he went ahead with the passthrough trades effectively to sell the MIE bonds to a sub-fund, SP5, in which he was the overwhelming majority shareholder, and he did so despite recognising the possible conflict of interest concerns.

(c)     Further, he sold the bonds from SP1 to SP5 at 25.375 for MIE18, and 21.875 despite the prices being offered to SP1 for the bonds being only slightly more than the price of 25 for MIE18, and 20 for MIE19, offered by Haitong, which were the very prices that he claimed were “too low”. In so doing, he disregarded much higher prices offered by other counterparties, which he declined to use because they were allegedly not available, he was not aware of them, or they allegedly didn’t fit into his trading strategy, all of which were claims that were not consistent with the evidence discussed.

(d)     Specifically, on 19 January 2016 between 10:00 – 10:30 a.m., which the accused said was the price discovery period that he (in court) said he had set aside, it was undisputed that significantly higher prices for the MIE bonds were offered by Morgan Stanley, BNP and Lowy for either one, two, or all three of the bonds being marketed by the accused for sale. Yet, the accused did not sell the bonds to any of these counterparties, but instead pass through the MIE bonds to a fund in which he was the overwhelming majority shareholder of, thus disregarding the much higher bids by the counterparties. He personally gained in this process, just as the SP1 investors suffered losses as a result.

373    Further, I noted that the accused had repeatedly answered in his investigation statements that he had to see the size and the word “firm” in a bid before he would transact. However, his actions showed that he acted otherwise.

(a)     In the case of Mr Reshad’s bids made to SP1 as part of the passthrough trade, these bids did not contain the size. And Mr Reshad’s subsequent offer to SP5 (after Mr Reshad had succeeded in buying the MIE bonds from SP1 at the low price) neither contained the size nor the word “firm”, and yet the accused carried out the transactions.

(b)     In addition, it should be noted that even Haitong’s bids did not have the word “firm”. Yet the accused took Haitong’s bids to be valid and executable.

(c)     While the accused attempted to explain that the above answers he gave in his investigation statements were referring to a “gold standard”, I agreed that no such “qualifier” or “clarification” (that his answers were referring to a “good standard” only) appeared in his statements. In other words, what the accused said in court, was not what he stated in his statements.

374    Separately, the Prosecution also highlighted that while the accused claimed that he was in a rush to sell the MIE bonds within a short window in the morning of 19 January 2016 (supposedly before his meeting of 10:30 a.m.), his claim was not credible.

(a)     For one, the accused had ample time to liquidate the assets prior to 19 January 2016, as SCL had indicated its intention to redeem its investment in SP1 on 15 December 2015, and had also sent the signed redemption form via email on 28 December 2015[note: 256] which the accused saw.[note: 257]

(b)     Further, there was evidence from Mr Lai that the liquidation process had started much earlier from the sale of the first bonds in SP1, which were the Jingrui bonds. The latter were sold before 6 January 2016 and Mr Lai testified that this sale was for the purpose of meeting the redemption of Stafford Capital. Mr Lai’s evidence on this point was not challenged by the Defence.

(c)     As such, the accused had sufficient time prior to 19 January 2016 to sell the assets, including the MIE bonds, and there was no need for him to have insisted on selling the MIE bonds in the very short window in the morning of 19 January 2016. Even if he had insisted on doing so, he should have sold them to Morgan Stanley, or at least sold the MIE19 bond to SC Lowy, when bids from both these counterparties were known by him and when these bids were clearly executable.

(d)     As further highlighted earlier (see [336] – [342] above), he could also have sold them to BNP which was offering significantly higher prices than the prices he eventually used for the passthrough trades, especially as BNP had made the effort to draw his attention to their bids and clearly indicated its continued interest in the bonds the accused was allegedly so desperate to sell.

375    All in all, I found credence in the Prosecution’s argument that the accused decided to use SP5 to buy the MIE bonds because he liked them. Thus, he never engaged in genuine price discovery before he finally carried out the passthrough trades by selling the MIE bonds from SP1 to SP5 at what was clearly not the “highest available price” on the morning of 19 January 2016.

(B)   The accused never intended to do genuine price discovery through Mr Reshad

376    The Prosecution argued that the evidence showed that the accused never intended to do genuine price discovery through Mr Reshad. Essentially, based on Mr Reshad’s and the accused’s answers in court, it was highlighted that Mr Reshad was not challenged on important aspects of his evidence where he said that his role was only to facilitate the passthrough and that there was no discussion (or reason for him) to do any price discovery before the passthrough trades took place.

377    Further, the circumstances of the accused’s interactions with Mr Reshad, before and during the passthrough process (as evidenced by the chat logs (see P72), and also a transcript of their phone message exchanged between them (P55)), and also the behaviour of the accused when acting for both SP1 and SP5 in the passthrough trades, led to the obvious conclusion that Mr Reshad’s role was never to do his own independent price discovery.

378    In response, the Defence submitted that the accused had wrongly assumed that Mr Reshad would do his own price discovery checks to ensure that the passthrough trade prices for the MIE bonds were fair and that such an assumption itself was reasonable as Pareto was a capital markets services licence holder that is regulated and monitored by MAS. Hence, the Defence argued that Pareto would have its own compliance functions and would comply with such compliance and other regulatory requirements without needing to be instructed by a third-party trader to do so. Further, the Defence argued that assuming that the accused had spoken to Mr Reshad closer to 10:08 a.m. on 19 January 2016, this would have given Mr Reshad effectively more than 30 minutes to do price discovery, between 10:08 a.m. and 10:41:14 a.m., before the MIE bonds were sold by SP1 to Pareto. [note: 258]

379    Having carefully evaluated the evidence, I agreed with the Prosecution that the accused never intended for Pareto to do independent price discovery, or even assumed that Pareto would do so. I elaborate below.

380     First, I agree with the Prosecution that the accused’s claim that he trusted or believed that Mr Reshad of Pareto would do price discovery before executing the passthrough trades was unsubstantiated. In this regard, the accused conceded that he did not instruct Mr Reshad to do price discovery for the MIE bonds, nor was there any written communication or documentation to Mr Reshad telling him to do price discovery based on Haitong’s bid prices.

381    In addition, as pointed out by the Prosecution, while the accused claimed that sometime around or before 10:18 a.m. on 19 January 2016, he had given Haitong prices for the MIE bonds to Mr Reshad with the expectation that Mr Reshad was to do price discovery,[note: 259] this claim was plainly inconsistent with the evidence of Mr Reshad that his involvement, prior to conducting the passthrough trades, was non-existent. Further, such a claim of the accused by the Defence was never put to Mr Reshad in cross-examination.

382     Second, I note that Mr Reshad was only told by the accused that Pareto’s role was to facilitate the passthrough trades. [note: 260] For doing this, Mr Reshad would earn the agreed spread. Essentially, the accused agreed that he, acting for SP5, would give Mr Reshad the price that he would buy the MIE bonds from SP1 and then Mr Reshad, as the intermediary, would just make the bid to SP1 accordingly after factoring in Mr Reshad’s own spread. The evidence from the accused during his cross-examination by the Prosecution was as follows:[note: 261]

Q:    Do you agree with me that this message from Mr Reshad when he said he could buy from you at those prices was an immediate, almost immediate response, after you had told him in the side one-on-one chat that you could pay 25 and 22 for the MIE 18 and MIE 19 respectively?

A:    That’s correct.

Q:    And you recall also that we have established that prior to the passthrough trade, the spread that Mr Reshad was to get for the passthrough trades was agreed and it was 0.125, right?

A:    That’s correct.

Q:    So what Mr Reshad, by his message at 10:37:27 in the group chat in giving you prices he could buy for the MIE 18 and MIE 19s, do you agree that he subtracted your prices you gave to him you could buy from SP5, the spread, and then he gave you the prices?

A:    It looks like it.

Q:    Therefore, can I ask you again to confirm, as far as Mr Reshad’s bids he gave to you at 10:37:27 in the group chat, that was given to you after you had given to him the prices you would buy – you could buy for SP5 of the MIE 18 and MIE 19 bonds of the amounts 25 and 22 respectively?

A:    That’s correct.

383    In essence, Mr Reshad’s role was simply to mechanically subtract his spread from the price offered by the accused (acting for the buyer SP5) and make that “adjusted bid” back to the accused himself (now acting for the seller SP1). All these “bids”/”offers” were done over separate chats albeit between the same two humans (the accused and Mr Reshad). They would nonetheless have given external parties the impression that these transactions were being conducted among three different parties i.e. SP1, Pareto and SP5, when in fact, the only two humans involved were Mr Reshad and the accused.

384    It was noteworthy that despite having been involved in other passthrough trades before, Mr Reshad testified that he does not know why – in this particular transaction - the accused had even started the additional one-on-one chat to carry out the passthrough trades, as Mr Reshad had simply expected the instructions for the buying and selling of the MIE bonds to have taken place by way of the single group chat.[note: 262]

385    The Prosecution also pointed out that the accused’s claims that he had expected Mr Reshad to do price discovery and that he had given Mr Reshad Haitong’s bid prices for this purpose, were also inconsistent with P55, the transcript of the conversation between the accused and Mr Reshad. This conversation had taken place before 19 January 2016. I reproduce P55 below (with the accused being speaker A, and Mr Reshad being speaker B).

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386    From P55 above, it could be seen that Mr Reshad had said to the accused “… I just want to let you know the accounts are all set up. If you want me to do the transfer, you just let me know the price, the amount, and if you want to give me a spread, great.” (emphasis added).

387    In court, when asked to comment on P55, Mr Reshad testified that:

(a)     The word “transfer” in P55 referred to the passthrough trades that he was to help facilitate.

(b)     As for his words “just let me know the price” Mr Reshad explained that he said them because his role was simply to facilitate a straightforward execution of the passthrough trades.

(c)     Further, Mr Reshad had totally leaned on the accused’s judgment for the price of the passthrough trades when he asked the accused “What is the price at which you want me to do this?”

(d)     Following Mr Reshad’s words to the accused, the latter clearly understood the limited extent of Mr Reshad’s role when he replied to Mr Reshad: “Okay, I’ll definitely give you a spread. I’ll let you know. Okay?”

388    Thus, it was clear from the conversation recorded in P55 between the accused and Mr Reshad, that the latter’s role was intended by both parties to be very passive and very limited. In essence, Mr Reshad was completely relying on the accused to give him the information (“the price”, and “the amount”) to carry out the passthrough trades, and his chief concern was only about getting a spread. This, the accused assured Mr Reshad that he would get i.e. that he would definitely give Mr Reshad a spread. There was certainly no indication, or expectation, that Mr Reshad would carry out any price discovery for the MIE bonds.

389    Instead, it was obvious from P55 that what the accused expected of Mr Reshad in the passthrough trades, for which Mr Reshad would be rewarded with a spread, was to carry the passthrough trades at the price and of the amount that the accused was to inform him. Thus, contrary to the accused’s claims in court, there was no evidence presented which would indicate that Mr Reshad was to do anything else (such as independent price discovery), or that Mr Reshad would be rewarded or remunerated for doing anything other than effect the transfer of the number of bonds at the prices that the accused informed him of.

390    I further noted that in cross-examination by the Defence, Mr Reshad was not challenged on P55 or the explanations he had given on its contents. I agreed with the Prosecution that P55 thus provided further evidence that, contrary to the accused’s claims in court, the accused never expected Mr Reshad to carry out independent price discovery before the passthrough trades were effected.

391     Third, as pointed out by the Prosecution, for the entire passthrough transaction, Mr Reshad did not assume any risk in executing the trades,[note: 263] and his role was simply to take the price offered by the accused for SP5.

(a)     As Mr Reshad would have earned the agreed spread regardless of the prices offered to SP1 for the MIE bonds, objectively, there was no impetus for him to have conducted any price discovery.

(b)     In a similar vein, the Prosecution pointed out that before appointing Mr Reshad as the intermediary in the passthrough trades, the accused had in fact had a separate conversation (see P3) with another potential intermediary, Mr Thomas Kong of Huatai. At that time, the accused was apparently considering using Mr Thomas Kong (rather than Mr Reshad) to carry out the passthrough trades. In his conversation with Mr Thomas Kong on 18 January 2016, the accused had stated that the role Mr Kong would play in the passthrough trades was one where the latter would get “free money”. Clearly, this meant that Mr Thomas Kong would get a spread if he carried out the passthrough trades and would not have to take any risks, nor be expected to do anything more.[note: 264] It could be clearly inferred that the same “passive role” was what the accused expected from Mr Reshad when the latter was finally appointed to carry out the passthrough trades.

392     Fourth, I accepted the Prosecution’s argument that there was no basis for the accused to have truly expected Mr Reshad to carry out price discovery for the MIE bonds, as these were not even bonds issued by Pareto.

(a)     In this regard, Mr Reshad’s unequivocal evidence was that he had no obligation to do price discovery. Instead, Mr Reshad understood this to be a straightforward transaction where he was to be in the intermediary, and he would just take a spread. He was not expected to do price discovery for the MIE bonds because he was simply not familiar with these bonds as these were not issued by Pareto.

(b)     Further, Mr Reshad testified that he leaned fully on the accused for the prices to be used for the passthrough trades. Mr Reshad saw the passthrough trades as an “extremely transactional, straightforward thing to do” and he did not scrutinise or think that he had to scrutinise the transactions. Indeed, Mr Reshad testified that there was no discussion about selling (or showing) the bonds to the market – his role was simply to pass through the bonds from one sub-fund (SP1) to another related sub-fund (SP5). In Mr Reshad’s words:[note: 265]

Again, it’s – it wasn’t even a consideration to look for buyers and sellers. This was a passthrough so I wasn’t even engaging clients or the market to be able to do this transaction.”

[emphasis added]

(c)      As rightly pointed out by the Prosecution, Mr Reshad’s evidence on these matters was all unchallenged during Mr Reshad’s cross-examination.

(d)     It should further be noted that. Mr Reshad was never told that the accused was the major shareholder of the fund SP5 that was going to buy the MIE bonds from the related fund SP1. In addition, in the main chat between the accused and Mr Reshad at 10.18:58 a.m., Mr Reshad sent a message to the accused to say: “Ready when you guys are.” So, clearly, by that time (10.18:58 a.m.), everything was set up in the sense that the passthrough trades were going to take place. Simply put, Mr Reshad was ready to do the passthrough trades and he was just waiting for the accused’s instructions to carry them out. There was nothing further for him to do but to act on the accused’s instructions, and to transact the amounts of bonds at the prices provided by the accused.

(e)     I would add that Mr Reshad’s unqualified message to the accused at 10:18:58 a.m. (“Ready when you guys are.”) also strongly suggested that it was always the understanding between him and the accused that the passthrough trades would definitely take place that day, and Mr Reshad was just waiting for the accused to give him the go ahead. In this regard, there was nothing to suggest that the accused only intended to use the passthrough as a backup plan and that his intention (or first choice) was to sell the bonds to a counterparty in the market.

393     Fifth, I do not accept the Defence’s argument that it was reasonable for the accused to have assumed that Mr Reshad/Pareto would conduct his/its own price discovery, even if the accused did not explicitly inform them to do so.

(a)     In this regard, the Defence argued that the accused thought that because Pareto was a CMS licence holder, which was regulated and monitored by the MAS, Pareto would conduct some form of price discovery for any passthrough trader.[note: 266] Further, the Defence argued that this was not an unreasonable view to hold since, as Mr Cheong had testified, Pareto had certain regulatory obligations and compliance functions to ensure that the required regulations were upheld, such as not being involved in fraud, money laundering, or market manipulation.

(b)     However, there was no actual evidence led by the Defence that such an obligation to carry out separate price discovery even existed in such a scenario just because Pareto was a CMS licence holder. [note: 267]Neither was there any actual evidence produced as to why the accused would even have made such an assumption about Mr Reshad/Pareto’s alleged obligation to check in such a scenario, or whether such an assumption (if really held by the accused) was even reasonable.

(c)     In particular, I noted that no evidence was led through the questioning of Mr Reshad by the Defence, nor evidence given by the accused himself, about the role, duties or responsibilities of a CMS holder in situations of passthrough trades, especially where they involve parties where there was an obvious conflict of interest as was the case here.[note: 268]

(d)     Further, while it was not disputed that Pareto had certain regulatory obligations and compliance functions to ensure that the required regulations were upheld, such as not being involved in fraud, money laundering, or market manipulation, this was quite different from saying that Pareto or Mr Reshad had to, or should, conduct their own price discovery in a passthrough trades situation. In other words, the Defence’s argument simply has no evidential basis to support it.

(e)     I would add that in this case, where the accused did not even make known his majority interest in SP5 to Mr Reshad, it cannot be said that Mr Reshad would have suspected, let alone have been aware of any possible impropriety or illegality, to make him scrutinise the transaction more carefully, or to make him feel the need to conduct an independent price discovery just because Pareto was a CMS licence holder.

(f)      In short, there was nothing put forward by the accused or by the Defence, in general, to substantiate their argument that just because Pareto was a CMS holder, the accused would, or did really, believe that Mr Reshad/Pareto would conduct their own price discovery process, independent of what the accused himself was already supposedly doing when he engaged the 11 counterparties. In fact, since the accused was already engaging so many more counterparties than he needed to for bids (see [353] and [361(a)], if Mr Reshad were to do the same, it would conceivably have made it even more likely that the market would perceive that there was dumping or fire sale of the MIE bonds, which would have depressed their prices even further.

394     Sixth, the Defence sought to rely on the chatlogs in D33, which were chats conducted between Mr Reshad and Mr Lai, to argue that in conducting MIE18 and MIE19 trades through Mr Reshad of Pareto, it was reasonable for the accused to have expected Pareto to assist to safeguard and check on the transactions.[note: 269] In this regard, the Defence highlighted the mention made by Mr Reshad in D33 that he was “checking on buyers”.[note: 270] This, the Defence suggested, showed that Mr Reshad had such a role to play when he was interacting with OAIP. The relevant extract in D33 is reproduced below.

Mr Lai:

show me a bid for 1m PSALM 24, 2m NTPCIN 24 or 2m STATS 20

Mr Reshad:

Okie checking on buyers. Let me come back.



395    However, with respect, I agreed with the Prosecution that the Defence’s argument – based on the above extract - was illogical.

(a)     For one, the chat cited by the Defence was dated 22 January 2016. This was after the impugned MIE18 and MIE19 passthrough trades had taken place (on 19 January 2016). Thus, this chat in D33 could not have formed a proper basis for the purported expectations the accused had of Mr Reshad and Pareto when the accused effected the passthrough trades on the earlier date of 19 January 2016. In other words, the accused could not have assumed on 19 January 2016 that Mr Reshad would do his own independent checks, based on what Mr Reshad would say three days later on 22 January 2016 in D33. Simply put, it was clear that on 19 January 2016, the accused would not have known what Mr Reshad would say or do three days later on 22 January 2016, and his actions on 19 January 2016 could not have been based on things that hadn’t yet happened, and which the accused won’t have known about when he carried out the passthrough trades.

(b)     Next, the character and identity of the bonds referred to in the chat in D33 were clearly different from the MIE bonds.

(i)       In this regard, the transactions that the Defence referred to in D33 involved other bonds and not MIE bonds.

(ii)       It was also unclear whether the bonds referred to in D33 were bonds previously placed by Pareto, or if those bonds had any other connection with Pareto (unlike the MIE bonds which clearly did not). It would be recalled that Mr Reshad had said that how Pareto deals with bonds depended on whether they were bonds issued by Pareto, or bonds not issued by Pareto. Thus, without any information on what kinds of bonds were dealt with between Mr Reshad and Mr Lai on 22 January 2016, it could not be ascertained why Mr Reshad dealt with these bonds differently on 22 January 2016 from how he dealt with the MIE bonds on 19 January 2016.

(c)     Further, the discussion in D33 related to a potential request made by Mr Lai to Mr Reshad to seek bids for those other bonds.

(i)       In this regard, there was no evidence on the face of D33 to show that the accused (or Mr Lai) in that chat intended to be both the buyer and the seller. Simply put, there was nothing to show that the discussion in D33 on 22 January 2016 even related to a passthrough trade scenario which was the scenario involving the MIE bonds on 19 January 2016.

(ii)       Instead, if the 22 January 2016 transaction was not a passthrough trade, it would be entirely logical for Mr Reshad to source for a buyer if Mr Lai or the accused was seeking Mr Reshad’s help to sell the bonds, and Mr Lai/the accused did not intend to hold on to the bonds thereafter.

(iii)       In short, what appears to be the scenario in D33 could well have been markedly different from the scenario involving the MIE trades transacted via the passthrough trade mechanism on 19 January 2016, where the accused was both selling the bonds for SP1 and then re-buying the bonds for SP5. The latter would have given Mr Reshad no impetus to source for external buyers, quite unlike a situation involving a non-passthrough trade.[note: 271]

(d)     Finally, and most importantly on this point, neither Mr Lai nor Mr Reshad was cross-examined on D33 and neither of their explanations on D33 was even obtained. On that basis, it was not possible to determine how similar (or dissimilar) the transaction in D33 on 22 January 2016 was with the passthrough trades involving the MIE bonds on 19 January 2026. Thus, the transaction in D33 may well have been a completely irrelevant and inappropriate comparison with the passthrough trades for the MIE bonds on 19 January 2016, which were the subject matter of this case.

(e)      In short, the transaction reflected in D33 was a red herring and D33 was of no assistance to the Defence.

396     Seventh, the Prosecution pointed out that based on the accused’s claim that he had expected Mr Reshad to carry out independent price discovery, Mr Reshad would have had only 10 minutes to carry this out. The inference would thus be that the accused actually did not contemplate Mr Reshad doing any genuine price discovery on 19 January 2016 before the passthrough trades were carried out. The accused’s answers on this issue are instructive.

Court:

How much time did you give [Mr Reshad] to do price discovery?

…

Court:

So about 10 minutes, is that what you’re saying? [10.08 to 10.18], is that what you’re saying?

A:

Yes, between the 10.08 and 10.18 is when I spoke to Mr Reshad.



397    In its submissions, the Defence argued that “(a)ssuming that [the accused] had spoken to Mr Reshad closer to 10:08 a.m., this would have given Mr Reshad effectively more than around 30 minutes to do price discovery, between 10:08 a.m. and 10:41 am, when the MIE bonds were sold by SP1 to Pareto”.[note: 272] However, this claim of the Defence – that there were 30 minutes for Mr Reshad to do price discovery - was not what was stated in the accused’s evidence. Further, Mr Reshad did not testify to this, nor did the Defence put to him that Haitong’s prices were given to him even before 10.18:58 a.m. for the purpose of doing price discovery.

398     Notably, when Mr Reshad first messaged the accused on the Bloomberg chat at 10:18:58 a.m. (see P72), there was no mention by Mr Reshad that he had received the Haitong prices earlier than 10:18 a.m., or that he would conduct, or was in the process of conducting, price discovery.

399    Instead, Mr Reshad’s message to the accused was simply “Ready when you guys are”. Clearly, this meant that Mr Reshad was just waiting for instructions or directions from the accused to carry out the passthrough trades based on the “the price” and “the amount” indicated to him by the accused (see P55 – transcript of their earlier discussion). As stated earlier, there was no evidence that Mr Reshad was expected to do anything more.

400    Further, in the chats indicated at P72 exchanged between the accused and Mr Reshad on 19 January 2016, the accused never asked Mr Reshad anything about the latter’s efforts at carrying out any independent price discovery. Thus, all the available evidence refuted the accused’s claim that he ever expected Mr Reshad to carry out any independent price discovery.

401    In any event, if the Defence’s position was that Mr Reshad had (and should have) carried out price discovery all the way up to 10:41:14 a.m. before the accused said “done” to accept the bid from Mr Reshad, then the accused similarly should have carried out his own price discovery all the way up to 10:41:14 a.m., and be open to higher bid prices before he concluded the passthrough trades at that time.

402    Yet when Ms Pamala Tsang of BNP posted her significantly higher bid prices for the MIE bonds at 10:22:17 a.m. (see [336] above), and even rang the bell to catch the accused’s attention at 10:40:31 a.m., the accused did not acknowledge her bids, let alone consider them. He should certainly have done so and possibly sold the MIE bonds to her as her bid prices were significantly higher than the prices he himself was about to use for the passthrough trades. Alternatively, he could have simply used BNP’s higher prices for the passthrough trades.

403    Indeed, there was no reason for the accused not to have done so since Ms Pamela Tsang was the only counterparty offering bids for all the three bonds that he was seeking to sell. Thus, rather than using the prices that he did for the passthrough trades, the accused could have (and should have) accepted her bids if he was really seeking to sell the MIE bonds at the highest available price, especially if he was trying to sell all three bonds. Moreover, since these prices had been given to the accused during the price discovery period (which the Defence suggested extended all the way until 10.41:14 a.m.), there was certainly no basis for the accused to have ignored them, and for him to have gone ahead with the passthrough trades instead.

404     Eighth, if the accused genuinely intended for Mr Reshad to do price discovery, he should at least have (but did not) give Mr Reshad the bid price provided by SC Lowy as the market context for the MIE19 bonds, since there was no doubt that he knew that SC Lowy bid (at US 28.5 cents) was significantly higher than Haitong’s bid (at US 20 cents) for the MIE19 bond. Further, the accused knew that the prices from SC Lowy were executable.

405    The accused, however, claimed that he did not want to rely on SC Lowy’s bid because he wanted prices for the whole block and not just for the MIE19 bonds from SC Lowy. However, as highlighted above (see [334] – [335] above) this claim by the accused would be at the expense of the SP1 investors because they would clearly have obtained significantly more in sale proceeds for the MIE19 bond if SC Lowy’s bid had been used, especially a SC Lowy’s bid at US28.5 cents for 1.5 million of MIE19 would have netted SP1 investors a lot more than the passthrough price of US21.875 cents for 1.5 million of MIE19. It appears that this difference amounted to about US$99,375, which was the amount that the SP1 investors thus lost out on for the MIE19 bonds alone.

406    I agreed with the Prosecution that the fact that the accused did not use SC Lowy’s MIE19 bid price further discredited his claim that he was doing genuine price discovery because SC Lowy’s bid would have resulted in significantly higher sale proceeds for SP1 investors, even if the accused did not use either Morgan Stanley’s or BNP’s bids, which were also significantly higher than what SP5 paid for the MIE bonds via the passthrough. Instead, the benefits of the lower passthrough trade prices accrued to SP5, and thus befitted the accused the most, in light of his overwhelming interest and ownership of SP5.

407     Ninth, a perusal of the chats (P72) between the accused and Mr Reshad also makes it clear that the bid prices to SP1 for the MIE bonds came solely from the accused and not independently from Mr Reshad, or any other counterparty that Mr Reshad could purportedly have found by way of his own price discovery. The relevant portion of P72 below illustrates this point.

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408    The table demonstrates that the bid prices all came from the accused, who initiated the so-called price exchanges or “negotiations” between him and Mr Reshad at 10.30.47 a.m. and 10.31.17 a.m.

(a)     In this regard, the accused’s claim that Mr Reshad first gave him bid prices (at 10:37:27 a.m. in Chat B) for the MIE bonds and that these bids could have been after Mr Reshad conducted his own checks, was a complete non-starter because it could be seen that at 10:30:47 a.m. and 10:36:13 a.m. in Chat A, it was clearly the accused who had given bid prices to Mr Reshad for the MIE bonds that SP5 could buy these bonds.

(b)     Further, Mr Reshad testified that he arrived at the prices in his message of 10:37:27 a.m. by relying on the prices that the accused gave to him to make the bid, after deducting his own spread. The accused even unilaterally ‘improved’ SP5’s bid for the MIE18 bonds in his one-on-one chat at 10.39.55 a.m., before requesting an improvement from Mr Reshad in the other chat at 10.40.09 a.m. This, Mr Reshad promptly did, in response to the accused’s own corresponding improvement made only moments earlier in the other chat.

(c)     These series of “back-to-back” transactions, when placed side by side, suggested a sequence of staged bids/offers. While they may appear genuine to third parties who look at them in isolation, when put together, the chats clearly showed that the transactions of bids/offers for the MIE bonds were fully and solely controlled by the accused. It was clearly a case of the accused being the puppet master and pulling all the strings. Thus, any claim that the accused “negotiated” the prices (meaning that he genuinely sought to discuss the prices for the MIE18 and MIE19 bonds) with Mr Reshad was completely untenable, as Mr Reshad simply did what the accused told him to do.

(d)     As a clear illustration of the complete extent to which the accused controlled the entire process of buying the MIE bonds, the transactions relating to MIE18 between 10:39:55 a.m. and 10:40:53 a.m. were especially pertinent.

(i)       In this regard, Mr Reshad testified he “[did] not have an explanation” as to why the accused improved prices, “on behalf of SP5”, for the MIE18 bonds on his own (which the accused did at 10:39:59 a.m.)

(ii)       Nevertheless, immediately after the accused’s improved bid (made on behalf of SP5), and almost mechanically at 10:40:53 a.m., Mr Reshad simply repeated that bid to the accused (acting on behalf of SP1[note: 273]), allegedly because of SP1 request (made by the accused) for an improved bid.

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(e)     Further, as could be seen from the extract of P72 (see [407] above), the fact that Mr Reshad replied to the accused (acting on behalf of SP1) with the prices so quickly after the bids were made by the accused (acting on behalf of SP5) made it crystal clear that Mr Reshad did not carry out his own independent price discovery but relied solely on the accused (acting for SP5 as buyer) to make the “same offers” back to the accused (acting for SP1 as seller). This would have been obvious to the accused.

(f)     While the accused tried to explain that he gave Mr Reshad an opportunity to “challenge [his] price”, that explanation, when considered against the sequence of his chats with Mr Reshad, and Mr Reshad’s and the accused’s own evidence in court, was completely unconvincing.

(g)     Instead, the chats when put side by side, spoke volumes as to what was actually happening. In short, the accused was the sole party dictating prices to be sold by SP1, and the prices to be bought by SP5, regardless of the higher prices that were offered by the other interested parties such as Morgan Stanley, BNP and SC Lowy for the MIE bonds.

409     Finally, I would add that the evidence of Ms Low, one of the Prosecution’s expert witnesses, was also that it was not Pareto's duty to establish prices that were reasonable for the passthrough trades. Her explanations for this opinion, which I endorsed, bear repeating:[note: 274]

(a)     First, the fund or the fund's holders have no recourse to Pareto acting as an intermediary should it subsequently be determined that the passthrough trade prices were not reasonable.

(b)     Second, it was completely at the discretion and the decision of the fund manager to decide if the passthrough trades should occur, and at what prices.

(c)     Third, Pareto was not amongst the 11 counterparties asked by the accused to provide bids at 10.00 a.m. In her view, if Pareto was an active trader in the three bonds, Pareto should be amongst the 11 counterparties that the accused asked for bid prices at 10.00 am, but it wasn't.

410    All in all, I agreed with the Prosecution that the clear conclusion to be drawn from the overwhelming evidence, including documentary evidence, opinion evidence and evidence of the relevant witnesses such as Mr Reshad and the accused himself, was that the accused never expected Mr Reshad to carry out independent or genuine price discovery, or to verify that the prices that the accused was offering to SP1 for the MIE bonds were fair prices.

411    This was a very significant finding especially as the accused himself acknowledged that the main precaution that he allegedly implemented - to get around the conflict of interest situation that he admitted was present from his selling the MIE bonds from SP1 (which he held no direct shares) to SP5 (of which he was the clear majority shareholder) - was through Pareto carrying out genuine and independent price discovery.

412    Clearly, this alleged precaution was never truly implemented by the accused. Thus, there was nothing to stop the accused from abusing the trust reposed in him by the SP1 investors, and this in turn resulted in him carrying out the passthrough trades in a manner and at prices that he knew would cause loss to them and benefit to himself.

(3)    If the accused really intended to get the highest available bid prices, he would have checked Morgan Stanley’s bids

413    As stated earlier (see [290] – [303] above), there were extensive discussions between the accused and Ms Goyal of Morgan Stanley, both in the main chat (P4) and in the one-on-one chat that she initiated with him (P64) before the accused carried out the passthrough trades.

414    For convenience, I set out again the relevant excerpt of the discussion between the accused and Ms Goyal in the main chat (P64).

01/18/2016 21:00:23 (01/19/2016 10:00:23 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: hi, miehol 18s 2.5mm, miehol 19s 1.5mm, indyij 23s 2mm. any offers for block?

01/18/2016 21:00:30 (01/19/2016 10:00:30 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:00:44 (01/19/2016 10:00:44 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says: sorry, i mean bids

01/18/2016 21:00:53 (01/19/2016 10:00:53 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: sec

01/18/2016 21:01:24 (01/19/2016 10:01:24 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: Miehol 18 - 33/ miehol 19 - 32/

01/18/2016 21:01:27 (01/19/2016 10:01:27 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: pass on INDYIJ

01/18/2016 21:09:34 (01/19/2016 10:09:34 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says: reposting - Miehol 18 - 33/miehol 19 - 32/INDYIJ – PASS

01/18/2016 21:15:21 (01/19/2016 10:15:21 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says for whole block?

01/18/2016 21:15:29 (01/19/2016 10:15:29 SGT) WEIYEH SUN, ONE ASIA INVESTMENT Says miehol 18s 2.5mm, miehol 19s 1.5mm ?

01/18/2016 21:15:42 (01/19/2016 10:15:42 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA Says yes

[emphasis added]



415    The Prosecution highlighted that even if one believes the accused’s claim that at 10:15:21 a.m. and 10:15:29 a.m., he had posed questions to Ms Goyal about her bid because he was unsure that Morgan Stanley’s bids were executable, the accused should have checked back with Morgan Stanley as soon as he could if he was genuinely interested in obtaining the highest available bid prices for the MIE bonds. This was especially the case since the accused said that the market conditions at that time were “really bad”[note: 275] and the MIE bonds were the “most toxic”, [note: 276] and he wanted to sell the MIE bonds quickly.[note: 277]

416    Instead, while Ms Goyal had shown arguably the greatest interest in the MIE bonds, a fact that could not have been lost on the accused, the accused did not follow up with her on her interest, and he allegedly did not see her reply at 10:15:42 a.m., despite the fact that she replied to him almost immediately after he questioned her at 10:15:21 a.m. and 10:15:29 a.m.

417    The accused’s apparent lack of interest in her reply was particularly surprising when one considers that Ms Goyal was not only the first of the counterparties that he reached out to who expressed interest in the bonds, Ms Goyal had even unilaterally initiated the one-on-one chat with him about the bonds as early as 10:02:18 a.m. (see extracts of one-on-one chat below)

P64 (extract)– side chat between accused and Ms Goyal of Morgan Stanley

01/18/2016 21:02:18 (01/19/2016 10:02:18 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

probably easier here given the noise on the main chat

01/18/2016 21:02:45(01/19/2016 10:02:45 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

ok

01/18/2016 21:08:07 (01/19/2016 10:08:07 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

assume nothing ?

01/18/2016 21:08:53 (01/19/2016 10:08:53 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

need a bid for blkock

01/18/2016 21:08:56 (01/19/2016 10:08:56 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

your best bid

01/18/2016 21:09:02 (01/19/2016 10:09:02 SGT) WEIYEH SUN, ONE ASIA INVESTMENT says:

pls use the main chjat

01/18/2016 21:09:11 (01/19/2016 10:09:11 SGT) MEGHA MS GOYAL, MORGAN STANLEY ASIA says:

ive put the bids there already

[emphasis added]



418    As seen from the extract of P64 above, Ms Goyal even nudged the accused for a response at 10:08:07 a.m. when she asked him “assume nothing” after he had failed to respond to her earlier bids. The accused clearly knew about her interest in the MIE bonds, when he finally replied to her at 10:08:53 a.m. to say that he needed a bid for the whole block and that this was to be her best bid. In P64, the accused at 10:09:02 a.m. then redirected her to use the main chat, to which Ms Goyal confirmed at 10:09:11 a.m. that she had posted her bids in the main chat already.

419    All the above messages, in the main chat and the one-on-one chat, pointed to the clear and unequivocal fact of Ms Goyal’s interest in the MIE bonds during the price discovery period. This was her interest in the same bonds that the accused was allegedly so desperate to sell that morning, and her bids were also a clear improvement of the “too low” bid that the accused had received from Haitong. There was thus a clear impetus for the accused to have paid close attention to her bids, and to have seen them as she posted them on the main chat as early as 10:01:24 am, and then reposted at 10:09:34 a.m. This was especially so when Ms Goyal specifically informed the accused at 10:09:11 a.m. in the side chat (P64) that she had posted her bids in the main chat, in response to the accused’s explicit request to her to “pls use the main chjat (sic)”.

420    Separately, I also noted that the accused’s attention to Ms Goyal’s bids and messages would also have been drawn by the fact that they would have been highlighted in the various chats when they were sent to him. In this regard, it should be noted that when Ms Goyal responded to the accused on the Bloomberg chats, even the accused admitted that this chat would have been highlighted in red (see D49).[note: 278]This fact was made clear when the accused was questioned by the DPP in court.

Q.    Right. No, I understand what you are trying to explain, but my further question then, is that if you scroll to where Morgan Stanley's group chat with you was in the left column, you would see, when you reach it, that that group chat would be red highlighted because she had sent a new message; a.m. I right?

A.    Yeah. Most likely, yes.

[emphasis added]

421    The Prosecution also submitted that even if one takes the accused’s claim – that he only saw Ms Goyal’s bids in the main chat at 10:15 am (and not earlier) - his reaction thereafter speaks for itself. At 10:15:42 a.m., it would have been clear to him that he had received reconfirmation of executable bids from Ms Goyal at prices much higher than those offered in Haitong’s bids. Yet, he claimed he did not to know this at that time because he was very busy.

422     However, since Ms Goyal’s response to his mass blast (and her repeated reminders to him about her bids) would have been highlighted, the accused’s attention would have been drawn to them and he would have responded if indeed he was genuinely interested in her reply, and in selling the bonds at the highest available prices. Thus, the clear inference to be drawn from the overwhelming evidence was that the accused would have seen her the Morgan Stanley bids, at the latest, when Ms Goyal responded to him at 10:15:42 a.m. to his direct queries.

423    If on the other hand, he did not see them, it must have been because he did not bother going back to the Morgan Stanley chat to check on her bids. If the latter was the case, the clear inference to be drawn was that he never intended to sell the MIE bonds to Morgan Stanley or to use its prices as a reference for the passthrough trades.

424    The Defence, however, argued that the accused did not check back with Morgan Stanley until sometime after 10:23 a.m., and that there was nothing to show that he was expected to do so before that time.

425    However, I found the accused’s claim that he only checked the main chat with Morgan Stanley after 10:23 a.m. to be difficult to believe, especially if he was really trying to get the highest available prices for the MIE bonds. As I have dealt with this issue extensively, I will just reiterate the main points below.

(a)     The accused claimed that he had wanted to sell the MIE bonds quickly because of the poor market conditions. Since Ms Goyal for Morgan Stanley had shown the greatest interest in the MIE bonds, by being the first to respond to show interest, being the first to respond with an executable bid, and also being the first to initiate a one-on-one chat with him to talk about her bids, he would have checked and confirmed the sale with her much earlier if he was genuinely trying to sell at the highest available price.

(b)     Further, at 10:08:53 am, the accused had specified to Ms Goyal in the one-on-one chat that he needed a bid for the whole block, which was to be her best bid, and further directed her at 10:09:02 a.m. to use the main chat for her bids. In response to his specific requests, she did all that he asked for, and confirmed to him only seconds later at 10:09:11 am, that she had posted her bids in the main chat already.

(c)     Specifically, Ms Goyal had posted and reposted the same executable bids at 10:01:24 a.m. and 10:09:29 a.m. respectively and this was done on the main chat which the accused had specifically directed her to post her bids. Ms Goyal further confirmed at 10:15:42 a.m. in the main chat that these bids were for the whole block, again in response to the accused’s queries posted at 10:15:21 a.m. and 10:15:28 a.m.

(d)     Each time that Ms Goyal posted her bids and sent messages to the accused, the chats were highlighted to draw the accused’s attention to the postings.

(e)      Thus, the accused would have seen Ms Goyal’s bids, at the very latest, shortly after she posted them, and by 10:15:42 a.m. at the latest.

426    In short, either the accused did check the main chat and found out about Ms Goyal’s executable (and much higher bid prices) by 10:15:42 am, or if he did not, it was because he was not interested in getting the highest available prices to sell the MIE bonds, despite his claims that this was always his aim.

(4)    If the accused intended to obtain the highest available bid prices, he would have checked back with Morgan Stanley even if he saw Ms Goyal’s “please refresh after trading” message

427    The Prosecution also suggested that because the accused had no intention to sell the MIE bonds to Morgan Stanley, this was why there was no reason for him to check back on the chats with Morgan Stanley especially after he started the chat with Mr Reshad at 10.19.14 a.m. for the passthrough trades. Accordingly, the accused did not even see the “please refresh before trading” message by Ms Goyal at 10:23:42 a.m. because by that time he had no interest in selling the MIE bonds to Morgan Stanley.

428    Alternatively, even if the accused saw the “please refresh before trading” message around the time that it was sent, he should have checked back with Ms Goyal as to whether her earlier bid prices were still valid. This was also the view of Ms Low, the expert witness, “given that Morgan Stanley had provided the highest prices up to the point”. [note: 279] In this regard, I agreed that if the accused really intended to obtain the highest available bid prices through price discovery, he would have checked back with Morgan Stanley especially as he purportedly set aside (at least) until 10.30 p.m. to do price discovery. The accused also conceded that there was nothing to stop him from going back to check with Ms Goyal on whether her bid prices were still the same.

429    I was thus of the view that the objective evidence showed that the accused would have been aware of the interest shown by Ms Goyal in the MIE bonds since she had responded very quickly to his request for bids, and she had even taken the trouble to initiate a separate one-on-one chat with the accused at 10:02:11 a.m., after specifically informing the accused that it was easier for them to discuss about the bids that Morgan Stanley was making. In court, the accused agreed that Ms Goyal did this as she wanted to get his attention.[note: 280]

430    To reiterate, the following conclusions could be drawn from the one-on-one chat (P64) and the main chat (P4) between the accused and Ms Goyal.

(a)     From P64, there was a whole series of exchanges between them which again showed Ms Goyal’s clear interest in the MIE bonds. For one, Ms Goyal had questioned the accused about his non-response when she asked him the question "assume nothing" at 10:08:07 a.m. after the accused did not respond to her earlier bids for the MIE bonds which she had posted only seven minutes earlier in the main chat (P4). Clearly pushed to give a reply to her when she asked him about this, the accused then told her that he “Need a bid for block”, and also told her that he wanted her best bid. He then specifically instructed her to "pls use the main chat". This, the accused claimed, was so that “the team and I can follow up.”[note: 281] Ms Goyal promptly and directly replied to the accused by telling him at 10:09:11 a.m. that "I've put the bids there already" hence directed his attention to her bids in the main chat.

(b)     As seen in P4 at 10:09:34 a.m., Ms Goyal reposted the same bid prices for the MIE bonds that she had made earlier at 10:01:24 a.m. At 10:15:42 a.m., Ms Goyal again promptly responded to further questions posed by the accused only seconds earlier, again showing her enthusiasm for the bonds. It was only at 10:23:42 a.m. that she posted the message “Wei, please refresh before trading”. (emphasis added)

(c)     When asked in court about this 10:23:42 a.m. message, Ms Goyal testified that she was not saying that Morgan Stanley could not buy the MIE bonds:[note: 282] She explained what she meant by the message.

A    Typically, prices can become stale after a certain time, so it is just a message to him saying -- it is not saying that I can't buy them anymore, it is just me saying that, "If you are still interested in trading, please just refresh the prices with me", because there could be news coming, there could be other reasons why the prices can move, and it's just like a disclaimer, saying, "Please just refresh. Don't come back to me minutes later, saying, 'I can sell you at those old prices.'"

[emphasis added]

(d)     Indeed, I agreed that Ms Goyal’s message posted at 10:23:42 a.m. did not indicate that her bid had been withdrawn, but that the accused should refresh them before trading. If anything, Ms Goyal’s message (which specifically included the words “before trading”) showed her continued interest in trading the MIE bonds with the accused. This invitation for him to refresh before trading was thus consistent with the interest she continually displayed in bidding for the MIE bonds.

431    The accused claimed that he saw this message from Ms Goyal (“please refresh before trading”) sometime between 10.23 a.m. and 10.30 a.m. The accused took the position that he had no obligation to check back with Ms Goyal on whether her earlier higher bid prices were still valid. The Defence also submitted that the experts never mentioned any requirement to refresh a bid in their expert reports and that it was stated in the report of one of the experts, Mr Cheong, that the accused need only sell “…at the highest bid amongst the bids that have been received from counter parties…” [emphasis added].[note: 283]

432    However, I did not agree with the arguments of the Defence.

(a)     While there was no specific written requirement that the accused had to check with Morgan Stanley in such a situation, this was not surprising as it was unreasonable and unrealistic to expect every single aspect of a portfolio manager’s role to be set out in minute detail; nor could every single scenario such as the “please refresh before trading” situation be planned for or envisaged beforehand.

(b)     Instead, guided by the duty he owes to the investors to seek the highest available price for the MIE bonds, and on the basis that the accused was supposed to be carrying out genuine price discovery and further, given that the Morgan Stanley prices were the highest of the prices that he had already received for bonds that he was allegedly desperate to sell, it was inconceivable that he would not have checked with Ms Goyal if he was indeed trying to get the highest available prices for the MIE bonds.

(c)     This was more so as the accused was still in the process of carrying out price discovery at that time and refreshing “before trading” was no different from seeking fresh bids from counterparties, which the accused was still actively engaging in at that time (see Annex A of DCS).

(d)     In such circumstances, and considering that Ms Goyal of Morgan Stanley had given the best bid so far, certainly much better than Haitong’s bids which the accused used for the passthrough trades, the accused would be expected to “refresh the bids” with her before trading with her, if he was genuinely seeking to sell at the highest available price. Indeed, as pointed out by the Prosecution, the accused himself admitted that Morgan Stanley was an important counterparty because they had shown him a bid. I reproduce the accused’s evidence on this point:[note: 284]

Q    And I recall your evidence previously also that you agreed with me that Morgan Stanley in that morning was an important counterparty, correct?

A:    Yes, I think in the sense that they have shown me a bid.

(e)     In short, as Morgan Stanley was one of only two (or three, if one includes SC Lowy’s bid for the MIE19 bonds alone) counterparties that the accused claimed to have known to have shown him executable bids, and even discounting BNP’s executable bid which the accused claimed not to have been aware of at that time, it was unbelievable for the accused not to have checked back with Morgan Stanley (which had given the highest bids that morning) before he carried out the passthrough trades if he was indeed genuinely trying to sell at the highest available price.

433    While the Defence took issue with the fact that the requirement to refresh before trading was not specified in the expert reports, having considered the testimonies of both Prosecution experts (the Defence having declined to call its own experts), I noted that the Prosecution experts’ evidence supported my finding that the accused should have checked with Ms Goyal on the bid after she had indicated to the accused to “please refresh, before trading”. Specifically, when Mr Cheong was asked for his opinion concerning Morgan Stanley’s message at 10:23 a.m. (“please refresh before trading”), Mr Cheong’s opinion was that if the accused saw this message from Ms Goyal, it remained important for the accused to ask Ms Goyal for a refreshed price to ensure that the bids for Morgan Stanley were not higher than the prices that he would ultimately use for the passthrough trades. [note: 285] This was the case even though there was no specific regulation requiring the accused to do so[note: 286]. In this regard, Mr Cheong’s view was that if there were higher bids in the market, the accused ought to sell the bonds at the higher market bid prices for the SP1 investors.[note: 287] In my assessment, Mr Cheong’s view accorded with logic and common sense and also aligned with the duty reposed in the accused.

434    In short, I was of the view that the onus on the accused to check with Ms Goyal i.e. to “refresh before trading”, while not explicitly written down as part of the accused’s duty as the portfolio manager of SP1, was simply part and parcel of the accused’s fiduciary duty, and also aligned with his duty to obtain the highest available price for the sale of the MIE bonds. Such a duty was intentionally breached by the accused in circumstances which he knew would cause loss to the investors or gain to himself.

435    Finally, I move on to Ms Goyal’s message which she sent to the accused at 10.45:02 a.m. on the one-on-one chat (see P64), where she had indicated to him “Wei.. presume nothing ont he MIEHOLs”.

(a)     This message again showed her continued interest (even at that late stage) in buying the MIE bonds from him.

(b)     The accused responded to her question at 10:47:53 a.m. with the words “nope.tks”, followed at 10:48:01 a.m. with the words “all or nothing”. The Prosecution suggested that his responses were all lies. Specifically, his answer “all or nothing” suggested that he did not trade with her because she had passed on making a bid for the IND23 bond.

(c)     I agreed with the Prosecution that the accused’s answer to Ms Goyal’s question was clearly and intentionally misleading, as it gave the impression that he did not sell the MIE bonds to Ms Goyal because she had not also made a bid for the IND23 bond. Yet the fact was that he never even traded the IND23 bond that day, not even via the passthrough.

(d)     While the accused tried to explain in court that he had responded to Ms Goyal in this manner because he wanted to give a “polite answer” to her, this explanation was absurd, especially as there was no need for him to lie to Ms Goyal for this purpose. This was especially so after he had already answered her “nope, tks” at 10:47:53 a.m. that he was not trading with her on the MIE bonds. Further in the context of his busy schedule, and the important meeting he was attending, there was simply no need for him to have said anything further (after the “nope, tks” response), unless it was to distract her from the true situation.

(e)     I further accepted the Prosecution’s submission that the accused had lied to Ms Goyal because he knew, prior to carrying out the passthrough trades with Pareto, that Ms Goyal was all along interested in buying the MIE bonds from him, but he did not want to take up her bids.

(f)     In addition, contrary to the Defence’s submission that this evidence was not relevant to the accused’s state of mind at the time of the passthrough[note: 288], this lie made by the accused to Ms Goyal, so soon after he had gone ahead with the passthrough trades (objectively benefiting himself in the process), suggested that the accused was fully aware that the passthrough trades for the MIE bonds had been improperly conducted at prices below what should have been paid for them.

436    What was, perhaps also telling about this episode, was that in his response to Ms Goyal, when he said to her “all or nothing” after she enquired again about the MIE bonds, the accused neither expressed surprise at her continued interest nor did he say that he was not aware that her earlier bids were still executable. Neither did the accused tell Ms Goyal that he thought that her bids had been withdrawn or that they were no longer valid because of the “please refresh before trading message” that she had posted at 10:23:42 a.m.

437    The Defence, however, argued that in any event, the Morgan Stanley bid was not available at the time of the passthrough trades since it had been refreshed at 10:23:42 a.m., and there was no evidence whatsoever that Morgan Stanley would have continued to bid on the MIE bonds. Neither, the Defence argued, was there evidence as to what the hypothetical bid would have been even if the accused had sought a new price.

438    However, with respect, none of these arguments help the Defence’s case, In this regard, I considered the following factors.

(a)     In so far as the charge was one of “likely to operate as a fraud on the investors”, what was important was that the accused knew that a significantly higher bid had just been made by Morgan Stanley for both of the MIE bonds during the time that he was allegedly trying to sell the bonds and that Ms Goyal’s message, after he did not respond to her high bids, was for him to “please refresh before trading”. Ms Goyal never once said that Morgan Stanley was no longer interested in trading or in bidding for the MIE bonds. Her actions throughout also suggested otherwise.

(b)     Further, contrary to the Defence’s arguments, I agreed with the Prosecution that there was nothing in the charges or in s 201(b), to limit the court to consider only the situation at the precise point i.e. 10:41:14 a.m. when the passthrough trades were carried out. Instead, bearing in mind that the accused had said that he began the process of sourcing for bids at 10 a.m. and that he wanted to conclude the process before his meeting started at 10.30 a.m., and seeing the supposed urgency of the situation, there was no excuse for him not to have sold to Morgan Stanely at the much higher bids they offered when these bids were clearly available, or to check back after with Ms Goyal after she posted the “please refresh before trading” message.

(c)     Clearly, the accused had not fulfilled his duty to get the highest available price for the SP1 investors, and his actions resulted in a loss to them (seeing the availability of other executable bids prior to and at the time of the passthrough), and a gain to the accused (as the overwhelming majority shareholder of SP5) since he bought the same MIE bonds at a price much lower than what Morgan Stanley (as well as BNP and SC Lowy) were offering to SP1. The accused did so in breach of his duty, and with the knowledge that he would thereby cause loss to the investor, and personally gain in the process.

439    As for the Defence’s argument that Mr Cheong had essentially endorsed the accused’s practice of conducting the passthrough trades using the bid prices offered by Haitong, I note that this was an inaccurate characterisation of Mr Cheong’s evidence.

(a)     Instead, Mr Cheong had explained that it was not appropriate to rely only on Haitong’s bid price for the passthrough trades.

(b)     Specifically, in his expert report P68 at [27], Mr Cheong stated that it was appropriate for Haitong’s bid price to be used only if it was the sole bid. In court, he made clear that his view was that this was not actually the situation in the present case, as there were clearly other bids, e.g., from Morgan Stanley and SC Lowy (for MIE19).

(c)     Further, when Defence Counsel asked Mr Cheong whether it was appropriate to have used Haitong’s bid prices at 10.41:14 a.m. for the passthrough trades, Mr Cheong explained that due to the time-lapse of over 30 minutes (between Haitong’s bids at 10.08:50 a.m. and 10.41:14 a.m.), it was not fair to rely on Haitong’s earlier prices as the reference price for the passthrough trades.[note: 289]

440    As for the accused’s claim that he had many chats opened at the material time on 19 January 2016, and he had no obligation to go back to check with Morgan Stanley, I agreed with the Prosecution that this was not a credible explanation for him to give.

(a)     To recap, Morgan Stanley was one of only four counterparties which had responded with bids, the others being BNP, Haitong and SC Lowy. Further, Ms Goyal had also shown arguably the most interest in the MIE bonds. More importantly, the accused was aware of her obvious interest, as he had even queried about her bids, and instructed her on how to place the bids (telling her to use the main chat for this purpose). Further, each time she sent him a bid by way of a message, that chat would have been highlighted for his attention.

(b)     Thus, in light of the above considerations, and having seen the “please refresh before trading” message from Ms Goyal (purportedly seen by him between 10.23 a.m. and 10.30 a.m.), this should have prompted the accused to check with Ms Goyal, especially as the accused had not yet carried out the passthrough trades, and would not do so until 10:41:14 a.m. Such an action on his part was certainly to be expected of him in light of his duty to the investors, and if he was really seeking to obtain the highest available prices. This was especially the case as the alternative of using the “too low” offered by Haitong as market context, was clearly disadvantageous to the investors.

441    All in all, the clear and irresistible inference to be drawn from all the evidence was that the accused did not check back with Ms Goyal after her “please refresh before trading” message, because he had no intention of selling the MIE bonds to her or to the market. Instead, he was going to carry out the passthrough trades using the significantly lower price offered by Haitong, and to do this to his benefit as the main shareholder of the buyer SP5, and to the detriment of the investors of SP1.

(5)    The accused sold the MIE bonds at a lower price to a fund where he had an overwhelming shareholding despite the obvious conflict of interest.

442    It was not disputed that by way of the passthrough trades, the accused sold the MIE bonds to SP5, in which the accused had a massive direct majority shareholding of 94.1% (and total sharing of 99% if his indirect interest was also considered - see [520] below). Despite this, the accused claimed that there was no conflict of interest in his carrying out the passthrough trades, as he had no responsibility to the SP1 fund. I agreed with the Prosecution that this claim was untenable and should be rejected.

443    To recap, in his role as the portfolio manager of SP1, a position that he had voluntarily assumed, the accused was entrusted with monies by SP1 investors to purchase and then manage the assets of SP1 including the MIE bonds. Thereafter, having also taken upon himself the role of selling the bonds as the portfolio manager on 19 January 2016, the accused should do so in the interest of the SP investors by selling the MIE bonds at the highest available prices. At the same time, being also the portfolio manager of SP5, he would also want to buy the same MIE bonds at the lowest possible prices to benefit the investors of SP5 (which was mainly himself).

444     Thus, the accused’s role and interest as a portfolio manager of SP1 (with a duty to the SP1 investors to sell the MIE bonds at the highest possible price) clearly conflicted with his role and interest as a portfolio manager of SP5 (with a duty to the SP5 investors to buy the MIE bonds at the lowest possible price).To make matters worse, he had an overwhelming direct and indirect shareholding of 99% in SP5 and hence a direct majority financial interest in the buying fund. In such circumstances, his position of being in a conflict of interest was obvious, and it was a clear and present danger to his objectivity and judgment.

445    In fact, the accused conceded that if SP5 bought the bonds at a price lower than the market price, he stood to gain as its majority shareholder[note: 290]. He further admitted that there could be a “potential conflict of interest” because of the trades between SP1 and SP5,[note: 291] although he also claimed that this conflict was mitigated by using Pareto as an intermediary, as he assumed that Mr Reshad of Pareto would conduct his own price discovery to determine a fair price.

446    As I have already analysed the evidence and concluded that the accused did not carry out genuine price discovery through Mr Reshad, nor did he have the intention to do so (see [376] – [412] above), it was clear that the accused never intended to resolve this obvious conflict of interest through the use of Pareto to conduct independent price discovery as claimed. Further, as the accused himself conceded, he was the ultimate decision-maker in the entire process:[note: 292]

Court:

Who decides whether to sell on the part of SP1?

A:

The selling decision is by the portfolio manager, that’s myself.

Court:

In this case?

A:

In this case myself.

Court:

Who decides to buy on the behalf of SP5?

A:

That is myself, your Honour.

[emphasis added]



447    As discussed earlier, the accused did not tell Mr Reshad that there was a potential conflict of interest in the passthrough trades between SP1 and SP5, or about his (the accused’s) majority ownership in SP5. This strongly suggested that the accused never expected Mr Reshad/Pareto to, or assumed that Mr Reshad/Pareto would, help to mitigate any conflict of interest, especially as neither Pareto nor Mr Reshad was even aware of such a conflict. If anything, Mr Reshad’s admission that he leaned on the accused for the price and did not do his own price discovery, showed that Mr Reshad never knew or expected to fulfil this role to conduct independent price discovery to establish a “fair price”, because the accused never gave him any reason for him to feel that this action was expected of him.

448    I would add that while the accused also said that “we” (meaning Mr Lai and he) “engaged Pareto Securities as the independent intermediary to come in here [to] do the price discovery and check on this price context that we have, and they can also at any point in time give us the right market context”, no evidence was ever led by the Defence from Mr Lai that there was actually any plan between he and the accused to do this. Neither was such evidence led from Mr Reshad or anyone from Pareto to this effect. [note: 293]

449    In essence, it was never possible for the accused to be looking at the interests of SP1 investors when the accused himself had a financial or pecuniary interest as an SP5 investor. This was obviously the case since the only way for the accused to maximise profit for SP5 (and hence for himself as the overwhelming majority shareholder of SP5) was if SP5 paid a low price for the bonds sold by SP1. It was clearly impossible to reconcile these conflicting duties, as could be seen from the struggle in the accused’s evidence in court.[note: 294]

A.

Your Honour, because as SP1 and SP5, my interest aside, I understand I have -- I understand I have my interest aside, but between two funds the price being sold between the two funds must be a fair price.

COURT:

Fair for who?

A.

Both for SP1 and SP5. Because a low price for SP1 means a high price for SP5 and vice versa.

COURT:

A low price for SP1 means -- I don't get it. A low

price for SP1 means a low price for SP5?

A.

So, your Honour, I may not explain it correctly. Please bear with me. So if SP1 sells something at a low price, it means

SP5 stands to gain.

COURT:

SP5 buys it at a low price?

A.

Correct. If SP1 sells at a high price, it means SP5 is overpaying.

COURT:

As far as SP5 is concerned, it's overpaying?

A.

Correct. So the idea here is to establish --

COURT:

SP1 of course benefits.

A.

Correct, your Honour. So the idea here is that we want to achieve a fair price between SP1 and SP5.

COURT:

You see, that's why I struggle with your evidence. So SP1 benefits in this scenario; SP5 overpays. So whose interests are you looking at? SP1 or SP5?

A.

Both SPs' interests must be looked after equally.



450    Thus, by putting himself in the conflict of interest situation, where

(a)     If SP1 sells at a high price, it benefits SP1 but SP5 suffers, and

(b)     If SP1 sells at a low price, it benefits SP5 but SP1 suffers,

the accused would ultimately have to choose to favour one party (either SP1 or SP5) over the other. He simply could not have it both ways.

451    This was something that was clear from the accused’s answers, although he attempted to suggest that he was trying to be fair to both parties and that he had hoped and/or expected that this would be achieved by using Pareto as the intermediary to conduct its own genuine price discovery. As stated earlier, the accused’s claim about allegedly using Pareto to conduct genuine price discovery was simply not borne out by the evidence.

452    All in all, despite the obvious conflict of interest in carrying out the passthrough trades, the accused went ahead with them resulting in SP5 (of which he was the clear majority shareholder) buying the bonds of SP1 essentially at a gross undervalue. This supported the Prosecution’s claim this action of the accused was taken because the accused liked (and admitted that he liked) the MIE bonds and hence wanted to acquire them.

III)   The accused knew that his acts would cause losses to SP1 investors and benefit SP5 which he was a majority shareholder of

453    The Prosecution submitted that by the accused selling the MIE bonds from SP1 to SP5 at prices pegged to Haitong’s bid prices when he knew of higher bids (including the bid from Morgan Stanley), the accused must have known that doing so would cause losses to SP1 investors. This was because the resulting sale proceeds from such passthrough trades would obviously be less than if he had sold the MIE bonds to the other counterparties which had made (higher) executable offers that morning, and they would also be less than if he had used their bid prices for the passthrough trades. At the same time, the accused knew that SP5, with the accused as its clear majority shareholder, would benefit from buying the MIE bonds based on the lower Haitong bid prices.

454    In this regard, it was undisputed that the price that the accused paid for the MIE bonds, through the mechanism of using SP5 in the passthrough trades, was lower than the prices that Morgan Stanley had offered for the MIE bonds on the morning of 19 January 2016. The passthrough trade prices were also lower than the prices which BNP offered for both MIE bonds, and which SC Lowy offered for the MIE19 bond. The latter two bids were both clearly executable as late as 10.41:14 am. As for the earlier higher bids by Morgan Stanley, they were executable when given that morning, and this would have been known to the accused at that time when he saw them. Alternatively, the accused should have sought to check on them after seeing Ms Goyal’s message to “please refresh before trading” message which she sent at 10:23:42 a.m.

455    Whatever the case may be, the fact that all these alternatives to the passthrough trades, which were all more advantageous to the SP1 investors, were not taken up by the accused, but he proceeded to passthrough using the significantly lower Haitong prices for the passthrough trades meant that:

(a)     The SP1 investors received significantly less from the sale of the MIE bonds by the accused to SP5 via the passthrough than they would have received if the bonds were sold to Morgan Stanley, BNP or SC Lowy, or if the prices offered by any of these three counterparties been used for the passthrough trades; and

(b)     The accused would have made the corresponding gain by acquiring the MIE bonds at these lower bid prices, as he was the majority owner of SP5 which bought these bonds at a “discounted” price from SP1.

456    While the Defence submitted that the accused was not the only one who profited from the passthrough trades since SP5 also had Mr Lai’s father-in-law, and OAIP as its shareholders, the undisputed fact was that the accused was the overwhelming shareholder with 94,1% direct interest in SP5 on 18 January 2016. In any event, the accused was also a shareholder of OAIP and hence had a further indirect interest in SP5 of 4.9%. Further, the fact that others may also have benefited from the accused’s actions does not detract from the fact that the accused made (overwhelmingly) the most profit from his act of carrying out the passthrough trades. Neither does it change the fact that it was the SP1 investors who ultimately suffered losses from the accused’s act of carrying out the passthrough trades at the prices that he used.

457    I would add that it was also unchallenged that subsequently, the accused sold the same MIE bonds to the market at much greater profit. For the purposes of the trial, it was set out at P8, a summary of the prices that SP5 paid for MIE18 and MIE19 bonds, and the price that SP5 sold these same bonds for.

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458    In essence, the accused cashed out his gains in the MIE bonds about 3 months after the passthrough trades at a tremendous profit (of over S$1.5 million – see [520] below) that he would not otherwise have made but for the passthrough trades that he conducted at the prices he did on 19 January 2016.

IV)   The above constitute acts were likely to operate as a fraud on the SP1 investors

459    To recap, for the reasons already extensively discussed:

(a)     The SP1 investors had entrusted their monies with OAIP to invest, and the accused as portfolio manager of SP1 owed a fiduciary duty to the investors, and a duty to sell the assets of SP1 (including the MIE bonds) at the highest available prices.

(b)     At the latest by 10:15:21 a.m. on 19 January 2016, the accused saw Morgan Stanley’s bids for the MIE bonds and knew that the bids were executable. He asked Ms Goyal a question seeking confirmation that her bids were for the sizes of the MIE bonds. Whether he did check for her reply or not, his subsequent actions showed that he did not intend to sell the MIE bonds to her.

(c)     The accused knew that Morgan Stanley’s bid prices for the MIE bonds were higher than Haitong’s and that they were executable. As such, because of his duty to SP1 investors, he ought to have sold the MIE bonds to Morgan Stanley by 10:15:21 a.m. or shortly thereafter. Alternatively, he ought to have used the Morgan Stanley bid prices as market context for any passthrough trades that he conducted with Pareto.

(d)     Before selling the MIE bonds via the passthrough to SP5, the accused did not do any genuine price discovery either on his own or through Mr Reshad. He also had no basis to expect Mr Reshad would do any price discovery for the MIE bonds which were not bonds issued by Pareto, and he never told Mr Reshad to carry out price discovery in any event. The evidence further showed that the accused knew that Mr Reshad relied solely on him to provide the prices for the passthrough trades.

(e)     The accused either did not see the “please refresh before trading” message from Ms Goyal that she posted at 10:23:42 a.m. or even if he did, he ought to have checked back with her on the Morgan Stanley bid prices available to him thereafter.

(f)     Despite knowledge of Morgan Stanley’s higher bid prices, the accused used the lower bid prices by Haitong as market context for the passthrough trades. In doing so, he breached his duty to sell the MIE bonds at the highest available prices.

(g)     The accused also knew of a higher executable bid by SC Lowy for the MIE19 bonds and had no good reason for not selling them to SC Lowy or not using that bid price as market context for the passthrough trade of the MIE19 bonds. The accused would also have been alerted to the higher prices offered by BNP for the MIE bonds before he actually carried out the passthrough trades.

(h)     Yet despite having been given several executable bids for the MIE bonds (i.e., Morgan Stanley and BNP for both the MIE bonds and SC Lowy for the MIE19 bonds) before carrying out the passthrough trades, the accused ignored these higher bids and sold the MIE bonds to SP5 at lower prices. He did so because he liked the MIE bonds and wanted SP5 to purchase them via the passthrough trades based on the lower bid prices made by Haitong.

(i)     At the time the accused carried out the passthrough trades for the MIE bonds, he knew that he would cause detriment and loss to the SP1 shareholders as he sold them at prices lower than he otherwise would have obtained had he sold based on the higher executable bids. Correspondingly, he also knew that he would make a gain for SP5 (and hence himself as the clear majority shareholder of SP5) through the same passthrough trades. Subsequently, the accused sold the MIE bonds for profit to the market, thus crystallising his gains.

460    The above findings would satisfy each and every element of the charges.

(a)     The first element, which was that the accused engaged in an act directly in connection with the sale of securities, namely, the MIE bonds; and

(b)     the second element, which was that the act was likely to operate as a fraud on the investors of SP1.

461    Accordingly, I was of the view that the Prosecution has proven all the elements of the two charges against the accused beyond a reasonable doubt and I convicted him accordingly.

Sentencing

462    Having found the accused guilty of the two charges proceeded with, I now deal with sentencing.

Prescribed punishment and antecedents

463    The offences the accused has been convicted of are punishable, under s 204(1) SFA, with imprisonment of up to 7 years, or with a fine of up to $250,000, or with both.

464    The accused is a first offender.

Defence’s sentencing submissions (“DSS”)

465    The Defence argued that:

(a)     a high fine of up to S$150,000 in respect of each charge was appropriate and proportionate; and that

(b)     alternatively, if the Court was of the view that the custodial threshold has been crossed, an imprisonment sentence of no more than 3 weeks per charge should be imposed, with the sentences to run concurrently.

Argument that a custodial threshold has not been crossed

466    On its arguments that the custodial threshold had not been crossed, the Defence submitted that the following sentencing considerations applied:

(a)      First, the appropriate sentence should be determined with reference to the aims of the SFA, i.e. (a) the protection of investors; (b) the protection of public confidence in the market; and (c) ensuring that the operation of the market was not distorted (citing Ng Sae Kiat at [58]).

(b)      Second, in weighing whether a custodial sentence was warranted for offences under the SFA, the Court considers the extent of harm or damage that was caused: PP v Foo Jong Kan [2005] SGDC 248 (“Foo Jong Kan”) at [29].

(c)      Third, public interest affected the type of sentence to be imposed, whilst aggravating or mitigating circumstances affected the duration or severity of the sentence imposed, citing Ng Geok Eng at [44].

(d)      Fourth, as to when the custodial threshold was crossed for offences under s 201(b), the Court in Ng Sae Kiat had held at [58]:

We do not think it is possible, nor desirable, to lay down a bright line rule as to when the custodial threshold would be crossed in respect of a s 201(b) offence. In our judgment, it is necessary to consider all the facts of the case to determine if the offending conduct in question warrants a custodial sentence. A non-exhaustive list of factors to consider would include the following:

a)    the extent of the loss/damage caused to victim(s);

b)    sophistication of the fraud;

c)    the frequency and duration of the offender’s unauthorised use of the relevant account;

d)    extent of distortion, if any, to the operation of the financial market;

e)    the identity of the defrauded party (i.e., whether the defrauded party is a public investor or a securities firm)

f)    relationship between the offender and the defrauded party; and

g)    the offender’s breach of any duty of fidelity that may be owed to the defrauded party.

In addition, the Defence submitted that situations where the custodial threshold has been crossed included the following:

(i)       where there has been market misconduct which adversely affects the integrity of the financial market by causing information conveyed on the market to be distorted: Ng Sae Kiat at [56]; and

(ii)       where the offending conduct impinges upon the interests of public investors: Ng Geok Eng at [49]. For example, in the case of unauthorised share trades, those trades made without the consent of the account holder, as opposed to those made without the consent of the securities firm with whom the account was opened, would cause greater detriment to public investors and would therefore attract punishment of a higher order: Ng Geok Eng at [49]-[50].

(e)      Fifth, whether a profit or gain was made is not determinative as to whether a custodial sentence should be imposed. For example, if the profit or gain was incidental, there may be grounds for a fine only: Foo Jong Kan at [30].

(f)      Sixth, a deterrent sentence need not always take the form of a custodial term and could take the form of a fine so long as it was high enough to have a deterrent effect on the offender himself as well as others: Cheong Hock Lai at [42]. A fine would generally be appropriate for a s 201(b) offence which does not involve the deception of an innocent member of the investing public: Ng Geok Eng at [52].

467    Applying the above sentencing principles to the facts of the present case, and bearing in mind that there were no similar precedents applicable, the Defence argued that a high fine should suffice.

468    The Defence further cited the following reasons.

469     First, there was no impact on public confidence in the market nor was there any distortion of market operation as a result of the accused’s actions, and the impact would only be on the SP1 investors. As for SCL, which was the only investor of SP1 that testified at the trial, this was a private investment company incorporated in the British Virgin Islands, and it had the knowledge, expertise, and experience in financial matters to evaluate the investment, and the risks involved and could bear the risk of loss of its entire investment.

470     Second, the Defence argued that the Court should apply a graduated approach in view of the absence of any written law, rule, regulation, policy, guideline or contract concerning the accused’s conduct citing the District Court case of PP v Siow It Loong [2008] SGDC 306 (“Siow It Loong”). Under that approach, in situations where “… conduct is not inherently dishonest and has not previously been shown to be against the law”, the Court there decided that “…some leniency for the first offences of a kind should be exercised if over-regulation of the stock market is to be avoided” (see [10]). In the present case, the Defence argued that since the accused’s behaviour was not clearly or expressly prohibited by any written law, rule, regulation, policy, guideline or contract, a graduated approach should similarly be taken and some leniency should be shown so as to avoid over-regulating the financial markets and dampening enterprise on the part of traders.

471     Third, as regards the extent of loss caused, the Defence’s primary position was that no actual loss was caused to the investors of SP1 since the Morgan Stanley bid prices were no longer firm, valid or executable at the time of the passthrough trades. In any event, even by the evidence of the expert, Mr Cheong, the financial impact from the sale of the MIE18 and MIE19 bonds to SP5 through Pareto at the actual executed prices instead of at Morgan Stanley’s earlier (refreshed) bid prices was US$190,625 and US$151,875 respectively (i.e., US$$342,500 in total).[note: 295] This was similar to the losses in the other s 201(b) SFA cases considered in Annex A of the DSS where in each case, a fine was imposed despite actual losses being of comparable amounts. For example:

(a)     In Ng Sae Kiat, the loss caused was quantified between S$113,000 and S$266,000 for each of the 4 offenders. Notwithstanding the presence of aggravating factors, including premeditation, and planning, the extended duration of the conduct, the difficulty of detection, and the violation of clear and express prohibitions against trading, fines of between S$10,000 and S$50,000 were imposed per charge.

(b)     In Cheong Hock Lai, the loss caused was quantified at S$107,925.29 for one of the offenders. Despite the presence of other aggravating factors such as the extended duration of the conduct, the Court imposed a fine of between $30,000 and S$100,000.

(c)     Based on the above precedents and bearing in mind the financial impact quantified by Mr Cheong, the Defence submitted that a fine of up to S$150,000 was appropriate.

472     Fourth, the Defence argued that there was an absence of a sophisticated or elaborate scheme, or of planning or premeditation in the accused’s conduct, as could be seen from the following factors.

(a)     The offences were precipitated by SCL’s redemption of its investment into SP1. Had SCL not redeemed its investment, the acts underlying the charges would not have taken place at all.

(b)     The accused did not try to conceal his acts, and the decision to conduct a passthrough was not one taken by him alone, and others in OAIP were involved in the preparatory steps for the contemplated passthrough trade There was also nothing in principle inherently objectionable about a passthrough.

(c)     The facts and circumstances surrounding the acts underlying the charges took place within a short window on the morning of 19 January 2016, with the price discovery process commencing at 10:00:34 a.m. and SP1 eventually selling the MIE bonds to Pareto at 10:41:14 a.m. When SCL sought further information on the sale of SP1’s assets, OAIP was prepared to make information available subject to SCL’s execution of an NDA. Eventually, SCL decided not to enter into the NDA and chose not to access the information that was made available.

(d)     This situation was in contrast to other s 201(b) cases, where there was pre-meditation, planning, or coordination, and/or where there were elaborate steps taken to conceal the wrongdoing. For example:

(i)       In PP v Ng Hock Ching and Lau Voon Kien and Lum Wai Meng Benny [2017] SGDC 142, (“Ng Hock Ching”) the accused operated a deceit on a securities trading firm. The Court found that there was evidence of premeditation and planning, and the accused had taken active steps to conceal his involvement. Despite these factors and the presence of other aggravating factors, the Court sentenced the accused to a fine of S$150,000 per charge.

(ii)       In Ng Sae Kiat, the accused persons had collaborated and coordinated with one another to carry out more trades and had even set up additional nominee accounts to increase their trading limits. Despite this and the presence of other aggravating factors such as the extended duration of the conduct, the difficulty of detection, and the violation of an express prohibition to trade, the Court sentenced each of the accused persons to fines of S$10,000 to S$50,000 per charge.

(iii)       In Ng Geok Eng, the accused person used various trading accounts in his, his wife’s, and his friend’s names to trade shares in a publicly listed company to artificially maintain its share price. The first instance Court held that the offences were “carefully planned and pre-meditated, and involved a high level of deceit” (see Ng Geok Eng at [24]). Despite this and the presence of other aggravating factors, such as the scale and duration of the conduct and the extensive market impact, the accused was sentenced to a fine of S$50,000 for each of the three s 201(b) offences that he was charged with (see Ng Geok Eng at [81]).

(iv)       In PP v Sia Teck Mong and another [2005] SGDC 249 (“Sia Teck Mong”) the Court found that deceit on the securities trading firm was perpetrated with some level of organisation and coordination. Despite this and other aggravating factors like the violation of an express prohibition against placements, the accused persons were sentenced to fines of S$100,000 to S$150,000.

(v)       Based on the above precedents and the circumstances of the present case, the Defence submitted that a high fine of up to S$150,000 in respect of each charge was appropriate and proportionate in the present case.

473     Fifth, as regards the frequency and duration of the offences, the Defence pointed out that the passthrough trades were conducted within a short window on the morning of 19 January 2016, and that whilst there are two charges, both were part of the same transaction, and were conducted as a one-off event. In addition, the Defence argued that:

(a)     The Prosecution had not taken issue with any of the other trades in January 2016 conducted as part of the liquidation process, including a subsequent passthrough trade between SP1 and SP5 done through Pareto for the Indika bonds.

(b)     The accused’s behaviour was also not systematic, large scale, or carried out over a long period of time, in contrast to other s 201(b) cases where the conduct occurred over an extended period. For example:

(i)       In Ng Geok Eng, the accused had made trades on 260 out of 273 trading days (see [14]), but was nevertheless sentenced to a fine of S$50,000 for each of the three s 201(b) offences he was charged with (see Ng Geok Eng at [81]).

(ii)       In Cheong Hock Lai, the conduct of the accused persons took place over 3 months, and they were sentenced to fines ranging from S$30,000 to S$100,000.

474     Sixth, the Defence took the position that there was no distortion to the operation of the financial market, and argued that in other s 201(b) cases where there was no distortion to the operation of the financial market the Courts have imposed a fine even where there were significant aggravating factors e.g. in Ng Sae Kiat where fines of S$10,000 to S$50,000 per charge were imposed in connection with deceptive trades that were traded off-exchange for which there was no secondary market and no actual market impact.

475     Seventh, SP1 was a private offering investment issued only to selected accredited or institutional investors, and not to general retail laymen investors.

476     Eighth, the Defence argued that the accused did the best he could in the circumstances and had no motive to cause loss to SP1 investors or to benefit himself. Further, because of his efforts, SP1’s investments were successfully liquidated in a short time, and notwithstanding the abrupt liquidation of SP1’s assets during extremely challenging and volatile market conditions, a redemption amount of over US$6.49 million was paid to SCL, even though Mr Goh testified that there was no mention of redemption price or expectation by SCL, and he believed SCL just wanted to exit and get its money out.

477    As regards mitigating factors, the Defence highlighted the following:

(a)      First, the accused was a first-time offender and has no antecedents: Krishin Chand v Public Prosecutor [1995] 1 SLR(R) 737 at [14]. Additionally, the accused is of good character, as attested to by the Head of China of ARA Private Funds, a real estate fund management company.

(b)      Second, the accused has served the country with distinction as an army officer and has provided substantial public service. He was awarded the Platoon Best Trainee during Basic Military Training, the Sword of Merit (which was awarded to the top 10% of the Officer Cadet School cohort for each vocation), and the Best Trainee in his Guards Conversion Course. He completed his National Service duties, leaving as a Captain of the Singapore Armed Forces. The Defence argued that the public service records of accused persons merit consideration in sentencing as they show good character and tangible contribution to the welfare of society: Foo Jong Kan at [24], referencing Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523 (“Knight Glenn Jeyasingam”) at [27].

(c)      Third, the accused had cooperated with the investigations. He attended no fewer than 5 police interviews between June 2017 and February 2018 in connection with the investigations.

(d)      Fourth, there have been material and significant delays in the proceedings which have caused the accused significant stress, undue agony, and the immense uncertainty of having the matter hanging over his head since investigations commenced in 2017. The Defence highlighted the following case authorities:

(i)       In Tan Kiang Kwang v PP [1995] 3 SLR(R) 746 (“Tan Kiang Kwang”), the Court held at [20] that “in appropriate cases, the court may exercise its discretion to order a “discount” in sentence, if there has been a significant delay in prosecution which has not been contributed to in any way by an accused person, if it would otherwise result in real injustice or prejudice to the accused”.

(ii)       The lapse of time is a relevant mitigating factor: PP v Lo Hock Peng [2015] SGDC 23 (“Lo Hock Peng”) at [47], and such delays can result in accused persons suffering prolonged periods of suspense and anxiety: Chan Kum Hong Randy v PP [2008] 2 SLR(R) 1019 (“Randy Chan”). The Court in Randy Chan observed at [23] “[W]here there has been a lengthy postponement, ... fairness to the prisoner requires weight to be given ... to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach…”

(e)     In the present case, the Defence submitted that there have been significant delays in prosecution in light of the following:

(i)       The First Information Report was made against the accused on 20 February 2017. His first statement under section 22 of the CPC was recorded on 27 June 2017 (P79). Subsequent statements were recorded on 6 July 2017 (P80), 2 February 2018 (P81), 6 February 2018 (P82), and 8 February 2018. However, he was apparently only charged on 22 October 2020, which was more than 3 years after he was first investigated.

(ii)       Trial dates in the matter were first fixed at a pre-trial conference on 30 September 2021 and affirmed in pre-trial conferences on 27 October 2021 and 17 January 2022. The first tranche of the trial took place between 1 August 2022 and 16 August 2022. The final tranche of the trial took place between 14 August 2023 and 18 September 2023. The Prosecution delivered its oral closing submissions on 29 December 2023, and the Defence delivered oral closing submissions on 12 March 2024. The accused was eventually convicted on 11 April 2024. As of the date of the sentencing submissions, nearly 7 years have passed since the accused was first investigated.

(iii)       In the meanwhile, the accused has been subjected to inconveniences and restrictions, such as the need to have to seek leave of the Court each time he travelled out of Singapore. In total, the accused has had to file 7 applications to leave jurisdiction.

(iv)       Moreover, as the Prosecution consistently sought a bail condition that the accused’s bailor, who is his wife, cannot travel at the same time that the accused travelled, the accused has not been able to go on any family holidays with his whole family consisting of his wife and two children during this time.

(v)       Furthermore, there was significantly increased cost, time and resources applied to the accused’s defence, arising from the Prosecution’s evolving case, and the inclusion of new witnesses from the original list of witnesses filed on 1 July 2021.

(f)      Fifth, prior to these proceedings, the accused had a substantial and extensive professional reputation which has suffered, and arising from the investigation and present charges, the accused has not been able to work in the fund management industry as a fund manager, thereby resulting in a loss of job opportunities.

478    All in all, the Defence submitted that a fine would suffice.

Length of custodial sentence if such a sentence is appropriate

479    The Defence further submitted that even if the Court was of the view that the custodial threshold has been crossed, a sentence of no more than 3 weeks’ imprisonment should be imposed per charge. In particular, the Defence sought to distinguish the case of Loo Kiah Heng as a sentencing precedent (see [177] above), because of the presence of certain aggravating factors there which the Defence argued were absent in the present case.

480     First, in Loo Kiah Heng, which involved over 37 trades conducted over 20 months, both accused persons had pleaded guilty to four charges each under s 201(b). Additionally, each accused person had 33 charges taken into consideration for the purposes of sentencing.

(a)     Soh, the fund manager who was in charge of managing an institutional fund owned by the Singapore Anti-Tuberculosis Association (“SATA”), had engaged in married trades with Loo, and had sold, on behalf of SATA, to Loo at prices below the market price and did the reverse when buying from Loo. Over 20 months, 37 married trades were conducted, and total profits of S$154,588.64 (for the proceeded charges) and S$842,353.51 (for all the charges) were gained. The sheer scale of the scheme in Loo Kiah Heng led the Court there to conclude that Loo had “clearly exploited a laxity in the way the reporting [of trades] was monitored”, and that his acts were “premeditated and executed with care to avoid detection” (at [35]).

(b)     The Defence argued that the scale and extent of the conduct of the offenders in Loo Kiah Heng far outstripped that of the accused in the present case, as the latter concerned the sale of the MIE bonds in a single transaction that took place on a single day between 10:30 a.m. and 10:44 a.m., and with a single counterparty. Further, more than a dozen bonds in SP1’s portfolio, with an estimated book value of over US$13.6 million (including the MIE bonds), were liquidated in connection with SCL’s redemption including the Indika bonds which were later subjected to a passthrough to SP5 through Pareto. Yet, despite conducting investigations for more than 3 years, the Prosecution had not taken issue with the liquidation of any of the other bonds or any other trades conducted during the liquidation, and there were also no charges to be taken into consideration for sentencing here.

481     Second, in Loo Kiah Heng, the offences allowed Loo to make immediate, guaranteed intra-day contra profits from the difference in prices, exceeding S$842,000 in total (at [2] - [4]).

(a)     Further, while the Court there found that Soh, the fund manager, did not make “direct monetary profits” in the same manner that Loo did, “the benefits that would accrue to him could not be understated. The married trades were executed in order to feed a relationship that was beneficial to Soh because it would improve his standing in ING and positively affect his income/bonuses. His motivations in maintaining the relationship with Loo and in keeping the married trades concealed were thus hardly altruistic” (at [49]).

(b)     In the present case, the Prosecution’s expert, Mr Cheong. had quantified the immediate financial impact from the sale of the MIE18 and MIE19 bonds to SP5 at the actual executed prices instead of at Morgan Stanley’s earlier (refreshed) bid prices at US$190,625 and US$151,875 respectively (total: US$342,500). This was far below the amount of S$842,000 involved in Loo Kiah Heng. As for the total profit made from the subsequent onward sale by SP5 of the MIE18 and MIE19 bonds on 7 March 2016 and 25 April 2016 (S$572,500 and S$549,250 respectively - total: S$1,121,750), any such profit was purely fortuitous. Unlike in Loo Kiah Heng, there was no guarantee of any such profit as SP5 had taken on the risk of the MIE bonds.

482     Third, in Loo Kiah Heng, the Court found that Soh carried out the trades in a manner which he knew would escape detection. The Court found that Soh’s acts were “executed with care to avoid detection” (at [45]). By contrast, the decision to conduct a passthrough was not one taken by the accused alone, and various other key persons were involved but had not flagged any issues or concerns. There was no evidence of any deliberate and covert attempt to cover up or to otherwise conceal the accused’s interest in SP5 and/or the passthrough from other parties.

483     Fourth, in Loo Kiah Heng, the securities in question were publicly traded stocks. By contrast, the MIE bonds were not traded on the open market and SP1 was a private fund for accredited or institutional investors only.

484     Fifth, there was no indication that the prices of the married trades in Loo Kiah Heng were determined with regard to any points of reference, e.g., actual firm, valid and executable bids received. This was unlike the present case where the passthrough prices were based on the actual earlier firm, valid and executable Haitong bids received.

485     Sixth, as for the plea of guilt in Loo Kiah Heng, the Defence pointed out that a plea of guilt only has a mitigating effect when it was motivated by genuine remorse, contriteness or regret, and/or a desire to facilitate the administration of justice, and that not every plea of guilt entitles the accused to a “discount” on the sentence: Fu Foo Tong v PP [1995] 1 SLR(R) 1 at [12]. The Defence argued that there was also no indication in Loo Kiah Heng that the Court considered the plea of guilt as a mitigating factor or took the guilty plea into consideration for the purposes of sentencing. In the present case, the accused was entitled to claim trial, and amongst other things, the Morgan Stanley bids did not exist at the time of the passthrough. Further, it was only after the end of the first tranche of trial that the Prosecution amended the charges against the accused.

486    The Defence further argued that sentencing precedents must be compared on a charge-by-charge basis. This followed from the fact that the approach for sentencing multiple offences was to first determine the appropriate individual sentence in respect of each charge (including the relevant mitigating and aggravating factors for each charge), before determining the overall sentence to be imposed (including which sentences ought to run consecutively, and the totality principle): Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [18] -[19]. It was thus not appropriate to use the global sentence imposed in Loo Kiah Heng as the measure of comparison since that sentence was a product of adjustments that had been made in the second stage (including the Court’s determination in that case that 2 of the sentences should run consecutively).

487    The Defence also pointed out that in Loo Kiah Heng, the Court declined to increase the sentences with a measure of specific deterrence because Soh had been terminated from his job in ING and there was no indication he would be in a position to commit such offences in the industry again. Likewise, Loo was running a business in China (at [50]). Similarly, specific deterrence was not a factor in the present case because the accused no longer works in the fund management industry and has ceased to be a fund manager since his employment was terminated in January 2017.

488    Thus, as the facts in the accused’s case were less aggravated than Soh’s acts in Loo Kiah Heng, and considering the other circumstances and the personal and mitigating factors, the Defence argued that the accused should be given a shorter sentence of no more than 3 weeks’ imprisonment per charge.

Prosecution’s skeletal sentencing submissions (“PSSS”)

489    The Prosecution submitted for a global sentence of 8 to 12 months’ imprisonment, consisting of two sentences of 8 to 12 months’ imprisonment per charge, with the sentences running concurrently.

Applicable sentencing principles and considerations

490    The Prosecution cited the decision of the High Court in Ng Sae Kiat where at [58] of the judgement, the court made clear that one of the aims of the SFA was to protect investors. The Prosecution also referred to sentencing factors set out in Ng Sae Kiat, and in Lee Chee Keet v PP [2016] 4 SLR 1316 (“Lee Chee Kiat”), and submitted that a deterrent sentence must be imposed on the accused, due to the gravity of the offence and the need to protect investors.

491    In addition, the Prosecution also emphasised Singapore’s status as a leading international fund management hub, boasting a robust financial sector that plays a pivotal role in global markets, with assets under management (AUM) in Singapore increasing from S$2.7 trillion in 2016 to S$4.9 trillion by 2022. These amounts underscore the responsibility and trust given to fund and portfolio managers in managing the investments of investors.

492    Arguing the importance of investor confidence for the reputation of Singapore’s financial market and economic growth, the Prosecution submitted that it was imperative that individuals entrusted with managing funds should uphold the highest standards of integrity and transparency. In this case, the Prosecution argued that the accused’s conduct represented a breach of trust that undermines investor confidence and a deterrent sentence of a substantial imprisonment term was necessary to deter others from even thinking of engaging in any fraudulent act, so as to safeguard investors and maintain investor confidence.

Aggravating factors point to sentence of 8 to 12 months’ imprisonment

493    The Prosecution submitted that there were numerous aggravating factors in the present case to justify a deterrent sentence:

(a)      First, the losses caused to investors in this case were significant. Specifically, through the passthrough trades, the MIE18 and MIE19 bonds were sold from SP1 at US$25.375 and US$21.875 respectively, for which SP1 received sale proceeds of US$634,375 for the MIE18 bonds and US$328,125 for the MIE19 bonds. The Prosecution argued that if the accused had sold the bonds to Morgan Stanley or used Morgan Stanley’s prices for the passthrough trades, SP1 investors would have received US$825,000 for the MIE18 bonds and US$480,000 for the MIE19 bonds. Therefore, for the First Amended Charge involving the MIE18 bonds, the accused caused a loss amounting to US$190,625 (about S$273,738) and for the Second Amended Charge involving the MIE19 bonds, the accused caused losses of US$151,875 (about S$218,093). The total losses were thus US$324,500 (about S$491,831[note: 296]).

(b)      Second, the accused was in a position of trust and had intentionally breached the trust given to him. Further, being in an obvious conflict of interest position, given that he was the portfolio manager of SP1 (which was selling the bonds) and the majority shareholder of SP5 (which was buying the bonds), he went ahead to sell the bonds at lower prices knowing that it would cause loss to SP1 investors. This was an intentional breach of the trust of the SP1 investors and caused losses to them.

(c)      Third, the offences were premeditated. The inference to be drawn was that the accused never intended to carry out the sale of the MIE bonds at prices that would benefit SP1 investors. Instead, he did so with the motivation to benefit himself, and to cause loss to the investors.

(d)      Fourth, the offences were difficult to detect. If not for the letter sent in by Mr Goh to MAS on 31 October 2016, the accused’s offending would have gone undetected.

(e)      Fifth, the accused personally benefitted from the offences:

(i)       At the point of purchase of the bonds into SP5, he bought them at prices lower than what others in the market would have paid for. In this regard, when these bonds were purchased by SP5 at prices significantly lower than that in the market, SP5 recorded unrealised gains of US$264,062.50 (about S$375,998.59) for the MIE18 bonds and US$142,500.00 (about S$202,905.75) for the MIE19 bonds, totalling US$406,562.50 (about S$578,904.34).[note: 297] This benefitted the accused as the owner of SP5 (with direct and indirect shareholding of 99%). If the bonds had been sold to Morgan Stanley, the sale of the MIE18 and MIE19 Bonds, the loss would be quantified at S$190,625 and S$151,875 respectively,[note: 298] as seen from the evidence of Mr Cheong.

Impact of selling to Pareto (passthrough) instead of to the market

 

Bid for 2.5 million of MIEHOL 18

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(2.5 million x bid price)

Impact ($)

(sales proceeds – 634,375)

1

BNP

34

850,000

215,635

2

MS

33

825,000

190,625

3

Pareto

25.375

634,375

-

Bid for 1.5 million of MIEHOL 19

Row

 

Bid price

(cents to the US dollar)

Sales proceeds ($)

(1.5 million x bid price)

Impact ($)

(sales proceeds – 328,125)

4

BNP

31.5

472,500

144,375

5

MS

32

480,000

151,875

6

Pareto

21.875

328,125

-



(ii)       By April 2016, the accused had sold both bonds to the market for a profit of US$572,500 for the MIE18 bonds and US$549,250 for the MIE19 bonds (the total profit was US$1,121,750 or around S$1,468,304).

(iii)       Given the huge amount of profit made by the accused, even if the maximum fine was imposed for each charge, the accused would still be enriched by his offending. Accordingly, a fine was clearly manifestly inadequate and would not be a sufficient punishment.

(f)      Sixth, there was a measure of sophistication to the fraud, as the accused did not engage in genuine price discovery, and had put forward a façade of seeking the highest prices for the MIE bonds to sell to SP5 through Pareto.

494    The Prosecution also argued that the global sentence of 8 to 12 months’ imprisonment sought in the present case was appropriate bearing in mind the case of Loo Kiah Heng which was the only reported case under s 201(b) involving a fund manager. The Court there had sentenced Loo to four months’ imprisonment and Soh (the fund manager) to eight months’ imprisonment, and the sentences were upheld on appeal. The Prosecution highlighted the following factors in Loo Kiah Heng which it argued were relevant to the present case:

(a)     The District Judge (DJ) there found (at [54]) the case was akin to one of criminal breach of trust rather than of mere misuse of information of a trading account. This fact, together with the way the transactions were carefully executed and concealed, the length of time over which the offences took place, the scale of the resultant benefits to the accused persons and the gravity of the corresponding loss suffered by SATA (the victim), made the DJ conclude that a custodial sentence was necessary.

(b)     Given Soh’s greater position of responsibility towards SATA and the fund as compared to Loo, the DJ sentenced Soh to a higher term of imprisonment. Loo also received a lower jail sentence because he disgorged his profits. At [51], in commenting on fund/asset managers, the Court stated that “It must be impressed upon persons placed in positions of trust in investment houses and the like that they cannot misuse the assets placed in their care and expect to get away lightly.”

495    In the present case:

(a)     The profits exceeded the total profits of all the charges in Loo Kiah Heng.

(b)     The fund manager Soh in Loo Kiah Heng, who was not shown to have directly benefitted monetarily from the offences, was nevertheless sentenced to 8 months imprisonment.

(c)     As compared to the accused persons in Loo Kiah Heng who pleaded guilty, the accused here claimed trial to the charges against him.

496    The Prosecution argued that while Loo Kiah Heng involved 37 trades over a 20-month period, this must be balanced against the aggravating factors in the present case. Considering these aggravating factors and Soh’s sentence, the proposed sentence of 8 to 12 months’ imprisonment per charge in the present case was appropriate.

497    Separately, the Prosecution highlighted the guidance provided by See Kee Oon JC (as he then was) in Lee Chee Keet on sentencing for s 201(b) offences. I will discuss these observations in greater detail when setting out the reasons for my sentence.

Defence’s Reply Sentencing Submissions (“DRSS”) and Defence’s Further Reply Sentencing Submissions (“DFRSS”)

498    The Defence was given the opportunity to respond to the Prosecution’s submissions on sentence and tendered the DRSS and DFRSS in response. As much of what the Defence stated in its replies were matters already set out in the DSS, I will just summarise the main points put forward.

Reiterating why the Defence considered a fine was justified

499     First, the Defence repeated its argument that the alleged loss mentioned by the Prosecution as having been caused to the investors was hypothetical, speculative, and conjectural, since the Morgan Stanley bids had been refreshed at 10:23:42 a.m. and were no longer firm, valid or executable, and there was also no evidence of the theoretical “refreshed” bid price. The Defence also repeated the position that by investing in SP1, SCL and other SP1 investors represented and warranted that they were aware of the inherent risks in their investments and of the methods by which the assets of SP1 were held and/or traded, and they could bear the risk of loss of the entire investment.

500     Second, notwithstanding the finding of this Court that the accused was a fiduciary vis-a-vis the SP1 investors, and that the accused had breached his duty to obtain the highest available prices for the MIE bonds, the Defence reiterated that there was no specific written law, rule, regulation, policy, guideline or contract which prescribes the steps that the accused has to take in connection with the passthrough, or to deal with the accused’s potential conflict of interest between SP1 and SP5. Further, even where a breach of fiduciary duty was established, the Defence argued that this does not automatically translate to an aggravating factor. Instead, the Defence argued that in Loo Kiah Heng, where one of the accused was a senior fund manager at a fund management company, the Court accepted at [49] that in almost every case of market misconduct, some degree of abuse of trust was involved, and this factor in itself should not be aggravating.

501     Third, the Defence repeated its claim that the offences were not premeditated.

502     Fourth, the Defence reiterated that the offences were not sophisticated even based on the findings made by the Court. In this regard, the Defence disputed the Prosecution’s claim that the accused did not engage in genuine price discovery, that the use of the two separate chats with Pareto to conduct the passthrough was ““unnecessary and a charade”, or that the alleged lie made by the accused to Ms Goyal (where he stated “all or nothing”) at 10:48:01 a.m. after the passthrough had been concluded, were evidence of sophistication.

503     Fifth, the Defence repeated its position that the accused did not conceal his involvement. Further, as regards the issue of difficulty in detection, the Defence cited the District Court decision in PP v Soh Guan Cheow Anthony [2015] SLR 190 (“Anthony Soh (DC)”) to argue that difficulty of detection was a factor that was inherent to most if not all market misconduct cases under s 201(b). Thus, this factor cannot in itself be aggravating. Instead, the Defence submitted that, on the basis of Lee Chee Keet, it was the obstruction of detection that was more relevant in sentencing rather than difficulty in detection, and that in the present case, there was no evidence of any obstruction of detection.

504     Sixth, the Defence reiterated the argument that any subsequent profits that were made by SP5 were entirely fortuitous. Given the volatile, chaotic, and difficult market conditions in January 2016 (which the Prosecution’s experts accepted), and the inherently risky nature of commodity-linked securities, the Defence argued that there was no guarantee or certainty that prices for the MIE bonds would have rebounded or recovered. In any event, the Defence argued that profit or gain was not determinative of whether a custodial sentence should be imposed. Further, on the issue of profits made by the accused, the Defence disputed the Prosecution’s claim that the accused made total gains of US$1,121,750 (or around S$1,468,304) as a result of his offences. Instead, the Defence highlighted the following arguments:

(a)     The appropriate measure of profit was the difference between the amount SP5 would have paid for the MIE bonds if it had purchased the MIE bonds at the Morgan Stanley bid prices, less the actual price SP5 paid for the MIE bonds in the passthrough on 19 January 2016. The profit should also be calculated as of 19 January 2016 because, at the time the passthrough was conducted in January 2016, there was no certainty that prices for the MIE bonds would have rebounded or recovered. SP5 took on the risk of the bonds and any profits it subsequently derived were entirely fortuitous. The coupon rate/interest for the MIE bonds should also be considered in the calculation. All in all, based on the calculations by the Defence, they arrived at a sum of US$317,587.50 as the eventual gain by the accused from the passthrough trades, accounting for his shareholding in SP5 as of 19 January 2016 of 94.1%. In this regard, the Defence did not consider the accused’s indirect interest in SP5 that he held through OAIP. The Defence’s calculations are tabulated below.

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(b)     In addition, the Defence referred to the case of Madhavan Peter v PP [2012] 4 SLR 613 (“Madhavan Peter”) to argue that:

(i)       In quantifying the amount of loss/profit caused by any offence, the Court will assess whether the loss/profit was attributable to extraneous factors and if such factors were unrelated to the accused person’s breach(es) under the SFA. Thus, in Madhavan Peter, the High Court held that it was overly simplistic to compute the loss avoided by the offender Chong in committing the offence of insider trading by reference to the traded price of the Airocean shares roughly two months after the offence took place because the subsequent drop in Airocean’s share price could also be attributed to other reasons unconnected to the offence (such as a failed joint venture).[note: 299]

(ii)       Accordingly, quite aside from the argument that there was no certainty, as of 19 January 2016, that the prices of the MIE bonds would rebound or recover and that it was entirely fortuitous that they did, the Defence argued that by parity of reasoning to Madhavan Peter, it would be overly simplistic and inappropriate to consider the profit made by the accused in the subsequent sales of the MIE bonds to the market in March and April 2016 as part, if not all, of the profits made, arguably arose because of the recovery or rebounding of the oil market and other market forces that were not attributable to or a result of the accused’s conduct in relation to the passthrough trades on 19 January 2016.

(iii)       Thus, even if the accused had conducted the passthrough trades on 19 January 2016 at the Morgan Stanley bid prices, SP5 would still have earned profits from the subsequent sale of the MIE bonds. Taking into account the coupon rate/interest and the accused’s 94.1% (direct) shareholding in SP5 as of January 2016[note: 300], the amount of profits made by the accused would still be US$317,587.50.[note: 301]

(c)     Further, and in the alternative, since the charges concerned the passthrough trades from SP1 to SP5, the relevant gain under consideration should be the gain made by SP5 from the sale of the MIE bonds, and the corresponding 94.1% share of such gains attributable to the accused having regard to his shareholding in SP5 as of 19 January 2016.[note: 302]

(i)       The Defence argued that this would amount to US$599,691.45, with the sum derived from the difference between:

(1)       the total of (i) SP5’s actual selling price of the MIE18 to Morgan Stanley and Goldman Sachs and (ii) SP5’s actual selling price of the MIE19 to SP9, using the actual prices SP5 purchased the MIE bonds via the passthrough trades, less

(2)       SP5’s actual buying price paid for the MIE bonds.

The calculations are summarised in the table below:

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(d)     Thus, by any of the calculations in [(a)] and [(c)] above, the Defence argued that the financial impact of the passthrough trades was far lower than that quantified by the Prosecution of US$1,121,750 (or around S$1,468,304). Instead, the profits were either US$317,587.50 or US$599,691.45.

505    Further, based on a lower profit figure of US$317,587.50, and bearing in mind that the accused no longer works in the fund management industry and has learned from his past conduct, the Prosecution’s submission that deterrence would not be achieved even if the maximum fine of S$250,000 is imposed, no longer stands. Instead, a high fine was appropriate and proportionate given all the circumstances of the case, particularly in the absence of any written law, rule, regulation, policy, guideline or contract concerning the accused’s conduct, and also in light of the fines imposed in Ng Sae Kiat and Cheong Hock Lai.

Alternative proposal of aggregate sentences of 3 weeks’ imprisonment

506    On its alternative proposal of a custodial sentence of not more than 3 weeks’ imprisonment per charge (with the sentences to run concurrently), the Defence reiterated that this proposed sentence was consistent with sentences imposed in the following cases with more aggravated facts:

(a)      Lee Chee Keet: The offender here profited in excess of S$573,500. The Court imposed 4 months’ imprisonment for each of the 2 charges, to run concurrently despite more aggravating facts.

(b)      Loo Kiah Heng: Loo earned profits of over S$842,000 and Soh benefited by way of a positive impact on his annual income and bonus. The Court imposed 1 - 2 months’ imprisonment per charge on Loo, with 2 terms to run consecutively (totalling 4 months) and 4 months’ imprisonment on Soh per charge, with 2 terms to run consecutively (totalling 8 months).

Prosecution’s Reply Submissions (“PRSS”) and Prosecution’s Further Reply Submissions (“PFRS”)

507    The Prosecution disputed both the factual assertions made by the Defence, as well as arguments put forward for a lighter sentence to be imposed. Amongst other things, the Prosecution argued that the Defence had relied on claims that were contrary to the evidence and findings of the Court and that the cases that the Defence relied on were distinguishable and did not assist the accused. I reproduce the crux of the Prosecution’s reply submissions below.

Defence’s claims contradicted the Court’s findings and the evidence

508    The Prosecution highlighted that the following claims made by the Defence had not been accepted by the Court:

(a)      First, the claim that the accused was under “extreme time pressure” to liquidate the SP1 portfolio and had allocated a 30-minute window to sell the bonds on the morning of 19 January 2016.

(b)      Second, the Defence’s claim that the accused had reached out to 11 counterparties and sought to engage with them to the best of his abilities, contradicted the Court’s findings that the accused never carried out genuine price discovery for the MIE bonds.

(c)      Third, the Defence’s argument that Mr Lai and Mr Koh were involved in the settlement of the trades but did not raise any issues with them was misconceived and of no mitigating value. For one, Mr Lai did not know what the accused knew, which was that there were higher available bid prices for the MIE18 and MIE19 bonds. The response (or lack thereof) of Mr Koh was irrelevant because he was essentially an operations and settlements specialist[note: 303], who would presumably not be able to assess whether the trades carried out by the accused were at market prices. In any event, even if other people may have been aware that the accused had committed offences but did not report him, this could not be mitigating.

(d)      Fourth, the Defence’s claim that SCL requested information on the redemption and that the accused gave his approval for such information to be provided although SCL chose to not access this information, was an inaccurate and irrelevant characterisation of the facts. While SCL had requested for the “trade logs”, this would only have shown the details of the trades conducted, for example, the buyers of the assets and the prices[note: 304], but would not have shown the full range of bids that the accused had received for the MIE18 and MIE19 bonds before he carried out the trades. Thus, even if the trade logs had been given to SCL, they would not have shown that there were higher available bid prices that the accused knew of.

(e)      Fifth, the Prosecution challenged the Defence’s reliance on the argument that there was a lack of any written law, rule, regulation, policy, guideline or contract at the material time to guide the accused on how to properly carry out the passthrough trades, as well as the fact that the MAS guidelines on best execution only came into effect after the MIE bonds had been traded. The Prosecution also disputed the Defence’s claim that it was not unreasonable or illegitimate for the accused to believe that Pareto would ensure fairness in the passthrough trades.

(i)       In this regard, the Prosecution highlighted that the Court had stated that it is not surprising that there were no written requirements on the accused’s specific conduct because “it was not reasonable to expect every single aspect of the portfolio manager’s role to be set out in minute detail nor could every single scenario … be planned or envisaged”.[note: 305] Instead, based on the accused’s own admissions, it was clear that the accused knew that he ought to have sought out and sold the MIE bonds at the highest available prices and that he should have done genuine price discovery. The accused was also aware that he was in a conflict of interest position. In particular, the accused knew that the passthrough trades were not based on the highest available prices when he conducted them.

(ii)       Further, on the role of Mr Reshad and Pareto, the Court had found that Mr Reshad would not have been able to ensure against impropriety or illegality. Additionally, the Court agreed with the Prosecution that there was no basis for the accused to have expected or believed that Mr Reshad or Pareto would do price discovery for the MIE18 and MIE19 bonds.

(f)      Sixth, the Defence’s contention that there was no actual loss to investors was again contrary to the evidence and the Court’s findings that the accused had not fulfilled his duty to obtain and sell the MIE bonds at the highest available prices for SP1 investors and that this resulted in a loss to them, as the bonds were traded at prices lower than the bids that Morgan Stanley, BNP and SC Lowy had given.

(g)      Seventh, the Defence’s claim that the acts of the accused were neither planned nor premeditated was also contradicted by the Court’s findings, as the evidence showed that the accused had intended to use SP5 to purchase the bonds before Haitong provided its bids at 10:08:05 a.m. because he liked the MIE bonds. Therefore, the arrangements that the accused had set up with Mr Reshad before 19 January 2016 were all in preparation for the sale of the bonds to SP5. The accused’s offending was also not done on the spur of the moment but was instead envisioned and planned beforehand, and the accused never expected Mr Reshad to do independent price discovery nor did he tell Mr Reshad that he was the majority shareholder of SP5. The inference from all these facts was that the accused never intended to carry out the sale of the MIE bonds at prices that would benefit SP1 investors. Instead, he did so with the motivation to benefit himself and to cause the investor’s loss.

(h)      Eighth, the Defence had argued that the accused had no motive to cause losses to SP1 investors or to benefit himself as the majority shareholder of SP5. However, even if, as the Defence alleged, there were other allegedly “more logical or easier” options available to the accused if he indeed had such a motive, the existence of these possibilities does not detract from the fact that the accused had breached his duty knowing he would cause loss to SP1 investors and his motive was for gain to himself. Thus, the fact that the offences were not committed in other possible ways could not be mitigating.

509    In addition, the Prosecution argued that despite clear evidence against the accused, as well as the findings made by the Court, the fact that the accused still insisted on his version of facts so as to get away with a light sentence showed a total lack of remorse on his part.

Authorities and precedents cited by Defence did not assist the accused

510    The Prosecution also submitted that the authorities cited by the Defence were unhelpful to the accused.

511     First, as regards the case of Foo Jong Kan, which the Defence cited to argue that under the SFA, the Court would consider the harm or damage that was caused to determine if a custodial sentence was warranted, the Prosecution highlighted that in the subsequent case of Lee Chee Keet, the High Court had clearly considered the quantum of gain as an aggravating factor in market misconduct cases (at [46]). On the facts of that case, the High Court took into account the appellant’s substantial gain in deciding to dismiss his appeal against the sentence of imprisonment (at [55]).

512    In the present case the accused reaped significant financial benefits of US$1,163,023.12 (or around S$1,522,328.06)[note: 306], and deterrence would not be achieved even if the maximum fine was imposed because the accused would then have benefitted and got away with most of his ill-gotten gains.

513     Second, as regards the case of Ng Geok Eng, which the Defence had cited for the proposition that a fine would generally be appropriate for a s 201(b) offence that does not involve deception of an innocent member of the investing public, the Prosecution made the following arguments:

(a)     The Court in Ng Geok Eng had made clear at [49] that in a case of unauthorised trading under s 201 of the SFA, the sentence imposed

…should reflect the extent to which each species of offending conduct impinges upon the interests of public investors ... In addition, the prejudicial effect of such unauthorised trading would be particularly pronounced where the offender is the broker or remisier of the innocent investor whose account has been used. Apart from the detriment suffered by the particular investor, such events would clearly be inimical to the fair and open running of our securities market. Public confidence in the securities market would be severely undermined if the investing public is not able to trust the relevant industry professionals. The need to ensure general deterrence is therefore sufficiently pressing to warrant the imposition of a custodial sentence in the general run of cases imbued with these characteristics.

[emphasis added]

(b)     Further, at [50] of Ng Geok Eng, the Court implied that where unauthorised share trading was carried out without the consent of the investor of the trading account, there was an abuse of the broker-client relationship. The Court then cited the case of PP v Goh Bock Teck [2002] SGHC 322 (“Goh Bock Teck”) where the then-DJ Mavis Chionh had at [15] had stated the following:

In sentencing the accused, I was conscious that the sentence should address the need to deter other like-minded individuals. For this reason, I did not agree with defence counsel that a fine would be adequate punishment. The trust which is reposed in dealer’s representatives by their clients is an important element of their relationship; and indeed, one of the “givens” of the securities industry. In committing the present offences, the accused abused that trust. A message has to be sent to all other would-be offenders that such conduct will not meet with a mere fine.

[emphasis added]

(c)     The above observations in Ng Geok Eng and Goh Bock Teck clearly demonstrated that one of the core factors that the Court should consider aggravating was where there was an abuse of position or trust by securities industry professionals in relation to their investors.

(d)     In the present case, the accused was entrusted with investors’ monies and owed a duty to his investors to obtain the highest available prices. Instead, the accused abused the trust given to him by his investors to intentionally cause them loss, and at the same time to benefit himself. Thus, the imposition of a custodial sentence would be in line with the principles set out in the above cases.

(e)     In addition, the High Court had opined at [49] - [50] of Ng Geok Eng that where there was a lack of consent emanating from the securities firm for unauthorised share trading, the public interest in deterring such conduct would be considerably less significant as compared to a situation where there was a lack of consent from the investors. The Court there also found that no loss had been caused by the offender’s use of other persons’ accounts in that case (see [81]). In contrast, in the present case, the accused’s acts had caused substantial losses to the SP1 investors.

514     Third, the Defence had relied on Shapy Khan to argue that if the offender had been able to pay a fine, the Court would have imposed the maximum fine. The Prosecution, however, argued that the Defence’s reliance on Shapy Khan was misplaced and the case was distinguishable as the losses sustained there only amounted to S$31,199.67 (at [10]). Further, the accused in Shapy Khan did not benefit from the crime though he stood to gain (at [18]).

515    In short, the Prosecution argued that the authorities cited by the Defence to argue that the custodial threshold was not crossed were either irrelevant or that they in fact supported the Prosecution’s sentencing position.

516    The Prosecution also distinguished the sentences in other cases relied on by the Defence.

(a)      First, the case of PP v Ng Hock Ching and Lau Voon Kien and Lim Wai Meng Benny [2017] SGDC 142 (“Ng Hock Ching”) was distinguishable as there was no evidence of loss caused in that case. Further, there was no breach of duty or abuse of trust unlike in the present case. The present case was also more serious as it involved substantial losses to investors who had entrusted monies to be invested and managed by the accused. In contrast, in Ng Hock Ching, Ng’s profit was only $36,000, and he was sentenced to $150,000 for each s 201(b) charge after trial. The other offenders, Lau and Lim, were sentenced to a fine of $30,000 each as they committed the offences on account of their friendship with Ng and their culpability was lower.

(b)      Second, the case of Ng Sae Kiat was distinguishable because:

(i)       The High Court there was primarily constrained by the parity principle in deciding to impose a fine, even though the High Court agreed with the Prosecution that a custodial term would ordinarily be warranted. At [64], the Court had stated:

We broadly agree that the aggravating factors highlighted by the Prosecution warrants a custodial sentence. In our judgment, custodial sentences would ordinarily be warranted where employees in a financial institution abuse the duty of fidelity they owe their employer in a premeditated and brazen manner, over a period of time, for personal gains…Therefore, ordinarily it would be appropriate to impose custodial sentences on an offender whose offences are of the same type, scale and gravity as that of the Respondents’ offences.

(ii)       However, at [72], while acknowledging that a custodial sentence was otherwise warranted, the Court decided that the parity principle prevented the imposition of a custodial sentence because another individual involved in the matter, one Vincent Tan, had been sentenced to fines for the same offences and his case could not be meaningfully distinguished from the cases in Ng Sae Kiat. The Court even described Vincent Tan as the “real villain” in the case and noted that the four offenders it dealt with had decided to plead guilty after Vincent Tan had pleaded guilty and received a fine. Thus, it was not unlikely that they had factored in Tan’s sentence in deciding to plead guilty. It was for this reason that the Court eventually declined to interfere with the sentences imposed by the DJ and did not impose a custodial term on the four offenders in Ng Sae Kiat.

(iii)       Additionally, Ng Sae Kiat was distinguishable from the present case as there was full restitution of profits made (at [37(a)]); there was no actual loss eventually because the brokerage company that was deceived had frozen the funds in the accounts used for the trades (at [63(h)]); and the largest amount of financial gain to the offenders was (only) $45,000 (at [17]).

(c)      Third, as for the case of Sia Teck Mong, there was similarly no loss or gain caused (see [5], [9] and [17]). Further, there was no evidence that the securities house suffered any additional prejudice above being deceived into a contravention of a practice note, and there was no indication of any damage suffered by any person (at [15]).

(d)      Fourth, Cheong Hock Lai was distinguishable from the present case as the highest profits made in Cheong Hock Lai were $62,931.90 (for the proceeded charges) and $107,925.29 in total (including the TIC charges) (at [13]). Further, the wrongful acts were committed when the respondents were trading on their own accounts and thus there was no clear abuse of position to the detriment of investors (at [30] and [38]).

A graduated approach should not be adopted

517    The Prosecution also disputed the Defence’s reliance on the case of Siow It Loong for the adoption of a graduated approach where there was no written source to indicate to the accused that what he did was wrongful or should have been avoided.

518    Instead, the Prosecution argued that the DJ’s proposition in Siow It Loong was very broad, and does not seem to have been derived from any established sentencing principle, any case law, or any academic publication. Further, the 2008 decision of Siow It Loong has not been cited since, nor has it been considered or endorsed in any reported case in the High Court. Even for State Court cases, the only reported case that had considered the proposition in Siow It Loong was Loo Kiah Heng. Even then, the DJ had stated at [46] that she “…preferred the view that if a course of conduct was not clearly illegal but the persons involved wanted to embark on it to test the limits of permissible activity, then they would have to bear the consequences of their conduct.” In any event, the Prosecution argued that the case of Siow It Loong differed significantly from the present case for the following reasons:

(a)      First, the trades carried out in that case did not involve any abuse of trust of investors.

(b)      Second, the profits made by the two accused persons in that case were totally not comparable, i.e. $4,825 and $6,592 with the profits made by the accused in the present case.

(c)      Third, the trades carried out by the accused in the present case, in contrast with those in Siow It Loong, involved the calculated abuse of the accused’s position to intentionally cause loss to his investors and at the same time, to cause gain to himself. This was not the type of conduct that was deserving of a graduated approach, even if there should be such an approach in law. Instead, the Prosecution submitted that the conduct of the accused in the present case harms investors and undermines investor confidence in the fund management industry and must be deterred by a substantial imprisonment sentence.

The accused’s total gains

519    Aside from the total amount of loss of US$342,500 caused to the SP1 investors as a result of the accused not using Morgan Stanley’s higher prices, the Prosecution initially argued that the accused had made total gains of US$1,121,750 (or around S$1,468,304) as a result of his offences (see [493(e)(ii)] above). Subsequently, the Prosecution revised this figure upwards to US$1,163,023.12 (or around S$1,522,328.06), bearing in mind inter alia that the accused also held 83.6% share in OAIP[note: 307], which in turn held an additional 5.9% of the shares in SP5 at the material time.

520    Effectively, this meant that the accused held an additional 4.9% (5.9 x 83.6/100, rounded up to the first decimal point) interest in SP5 that has to be added to his direct holding of 94.1% in SP5. Thus, in total, the accused’s shareholding in SP5 - both direct and indirect - was 99% (94.1% + 4.9%). (see PFRSS at [10] and the table reproduced below).

Description

Actual Buying

Price +

Interest (US$)

Actual Selling

Price + Interest

(US$)

Coupon payments

received by SP5 / SP9

(US$)

Actual Gains

(US$)

Sale of MIE18 (by SP5 to market)

716,276.04

1,225,755.20

85,937.50

595,416.66

Sale of MIE19 (by SP9 to market)

356,875.00

879,979.17

56,250.00

579,0354.17

Total

1,174,770.83

The accused’s gains, i.e., 99% of total

1,163,023.12 (or around S$1,522,328.06)



521    The Prosecution also referred to the case of Lee Chee Keet, where the appellant, who was under a moratorium imposed by the SGX on the transfer or disposal of his shareholdings in SNF Corporation Limited (“SNF”) for one year after the listing of SNF, had deceptively used nominees to circumvent this moratorium and disposed of his shareholding in SNF. A total of 15,931,900 SNF shares of his were sold by nominees in breach of the moratorium in three tranches, two in the open market and one through an off-market transaction, with the proceeds of the sale being approximately S$5.73 million, which were then channelled back to the appellant.

522    On the issue of the personal gain of the appellant for the purpose of the appeal against sentence, the High Court there considered (at [42] to [47]) the submission of the Defence in the lower court that the appellant only enjoyed a gain of S$573,548.40, being the difference between the price at which he sold the SNF shares in breach of the moratorium, and the price at which the SNF shares would have been sold had he complied with the moratorium. The High Court did not seem to have given credence to this argument because it observed that the appellant had gained handsomely, that his gains were not wholly fortuitous and not some unexpected windfall for him, nor did they flow to him purely by circumstance. The Court added at [44] 521 that “[i]f the post-IPO share prices had fallen, presumably he would have simply bided his time until he felt the time was right to sell”, and that the appellant had gained “from having engineered for himself the flexibility of cashing out within the period of the moratorium and at opportune times when he was not supposed to have done so.”

523    The Prosecution thus submitted that a parallel could be drawn between the present case and the observations of the High Court in Lee Chee Keet, as in the present case, the accused could similarly determine when and how he sold the MIE bonds to the market after he had bought them into SP5 in breach of his duty.

524    As for the subsequent sale of the MIE bonds from SP5 and SP9, the Prosecution pointed out that the accused always knew about their sale by Mr Lai, since the latter had to report to the accused and needed the accused’s approval before trading them. Thus, the accused had control over when and how these bonds were sold and he permitted Mr Lai to sell them to the market from SP5 and SP9 in a manner that resulted in significant total profits to the accused of US$1,163,023.12 (or around S$1,522,328.06).

525    The Prosecution also argued that the present case was significantly different from Madhavan Peter where the offender Chong did not have any control over the losses he would have avoided as a result of subsequent market price movements. Instead, in the present case, the accused alone could decide when to realise his profits from the price movements in the market.

526    The Prosecution thus reiterated that the gains made by the accused were not fortuitous, since he had full knowledge of and control over when and how the MIE18 and MIE19 bonds could be sold, and he had also bought them via the passthrough trades because he liked the bonds and "believed [these bonds] will recover”.[note: 308] Clearly, he saw potential in them, and approved for them to be sold at a time when profits could be realised.

527    The Prosecution further disputed the Defence’s argument that the profits from the sale of the MIE bonds to the market would have eventuated even if the accused had bought the bonds from SP1 into SP5 at the Morgan Stanley prices. Instead, the Prosecution argued that this claim was speculative since had the accused done genuine price discovery and acted properly, he would likely have sold the MIE bonds to Morgan Stanley and BNP at the highest available prices for the MIE18 and MIE19 bonds, and hence there would have been no profits to SP5 to talk about.

528    Thus, the Prosecution submitted that the Court should, in sentencing, consider the financial gain that the accused had in fact received, i.e. S$1,522,328.06. This large gain would not have been made if not for the accused’s offences.

Little or no weight should be given to the mitigating factors

529    The Prosecution argued against reliance on the factors that the Defence had cited as mitigating in nature.

530     First, the Prosecution submitted that the accused’s lack of antecedents and plea of guilt could only be a neutral factor at best in the face of the need for deterrence.

531     Second, while the Defence argued that the accused was of good character by providing one testimonial from his secondary school friend and further that the accused had provided “substantial” public service by completing his mandatory NS obligations, the Prosecution submitted that these arguments should be given no weight as his completion of NS obligations was no different from what many other male citizens and Permanent Residents have done. Further, the High Court in Leong Sow Hon v PP [2021] 3 SLR 1199 (“Leong Sow Hon”) had held that courts should place limited weight on past contributions.

532     Third, the Prosecution disputed various other claims made by the Defence including the argument that there was no premeditation involved, that the acts of the accused were not part of a sophisticated or elaborate scheme, and that the offences took place on a single day. The Prosecution submitted that the present offences were premeditated, and the fact that the offences took place on a single day could not be considered on its own but has to be considered in the context of the accused’s abuse of the trust given to him by the SP1 investors, the loss he caused to them, and the gains he made for himself.

533     Fourth, while the Defence claimed that the accused had cooperated with investigations by attending no fewer than five interviews by the investigator, the Prosecution argued that this could not, in itself, be a mitigating factor because the accused was required by law to attend such interviews. Further, he had not cooperated with investigations since it could be seen that the answers he gave were evasive and self-serving.

534     Fifth, as for the Defence’s argument that there had been a significant delay in these proceedings and a lower sentence was therefore warranted, the Prosecution submitted that there was little merit in the Defence’s submission.

535    Instead, the Prosecution highlighted the recent decision of Menon CJ in Wong Poon Kay v PP [2024] SGHC 91 (“Wong Poon Kay”), where an 11-year delay in prosecution (from 2 March 2010, when investigations began, to 4 June 2021 when the accused was charged) was not found to be inordinate. Instead, at [66], Menon CJ held that the test was whether the Court was “satisfied that there has been inordinate delay that is attributable to the Prosecution and that the accused person has suffered unfair prejudice as a result”. His Honour had also made clear that an inordinate delay was one that was “unusually long and not explicable by reasonable grounds” (see [68]). Further, Menon CJ cited Ang Peng Tiam v Singapore Medical Council and another matter [2017] 5 SLR 356 (“Ang Peng Tiam”) where at [113], the Court explained that whether there was an inordinate delay was “not measured in terms of the absolute length of time that has transpired, but must always be assessed in the context of the nature of investigations”. This was obviously a fact-sensitive inquiry.

536    In the present case, the Prosecution argued that there has similarly been no inordinate delay.

(a)     In this regard, as could be seen from the trial, the evidence in the present case was complex and voluminous. The First Information Report was received by MAS on 20 February 2017, and from the evidence adduced at trial, it was evident that extensive investigations were required, Such investigations included the following:

(i)       Obtaining and reviewing voluminous documents and other evidence from OAIP, APEX, Bloomberg, and market participants (e.g., Bloomberg chats with BNP, Morgan Stanley and Pareto);

(ii)       Conducting five interviews and recording statements from the accused, where he was evasive and uncooperative; and

(iii)       Interviewing all relevant parties including Mr Lai, Mr Goh, Mr Reshad, the SCL representatives, and Ms Megha Goyal from Morgan Stanley amongst others.

(b)     The accused was charged on 22 October 2020 which was about three years and eight months later. The Prosecution pointed out that the period of time to be looked at when considering whether there has been an inordinate delay was the time the Prosecution took to bring the present charges against the accused (see Pigg, Derek Gordon v PP and another matter [2022] SGHC 5 at [104]), and the time taken for trial was to be excluded from this analysis.

(c)     In this regard, the Prosecution submitted that the time taken to investigate and review the case against the accused was amply justified and would in no way amount to an inordinate delay.

537    Further, the Prosecution submitted that there was also no evidence of any unfair prejudice caused to the accused.

(a)     Regarding the Defence’s complaints concerning bail, the Prosecution highlighted that the bail condition that the bailor cannot travel with the accused was a standard bail condition imposed on all accused persons. Further, it was open to the accused to ask another bailor, who was not his wife, to be his bailor, if he wished to have his wife travel with him. Since he chose not to, or even if he could not, it does not lie in the accused’s mouth to complain that this situation amounted to mistreatment, when it was he who put himself in that position. This was also part of the necessary process and consequence of a person being charged with an offence.

(b)     On the separate matter regarding its conduct of the trial, the Prosecution pointed out that it was legally permissible and indeed not unusual for parties to decide to include new witnesses or to serve new documents. As for the first and second amendments made to the charges, these were merely to edit the phrasing of the charges and to correct typographical errors (e.g., “offer” to “bid”), and were done before the trial commenced. The third set of amendments, effected during the trial, was granted by the Court under s 128 of the CPC. As explained during the trial, the Prosecution had applied for the amendments to make clear that the bid for the MIE18 and MIE19 bonds was provided by Morgan Stanley earlier, i.e., at 10:01:24 a.m. and 10:09:34 a.m. before the sale of the bonds from SP1 to SP5 via the passthrough at around 10:41:14 a.m.. This was obvious from the evidence adduced by the Prosecution at trial and has been the Prosecution’s case. Also, the Defence had cross-examined the witnesses on the evidence, and hence the amendments did not prejudice the accused.

538     Sixth, as for the Defence’s argument that arising from the investigation and present charges, the accused had suffered significant reputational damage and has not been able to work in the fund management industry as a fund manager, thereby resulting in a loss of job opportunities, such an argument was expressly rejected by the High Court in Stansilas Fabian Kester v PP [2017] 5 SLR 755 (“Stansilas”). In that case, the offender had argued that he was already punished by facing disciplinary proceedings in the army and would suffer from adverse consequences at work. In rejecting these arguments, and regarding them to be irrelevant, Menon CJ stated at [111]:

A person who breaches the criminal law can expect to face the consequences that follow under the criminal law. Whether or not such an offender has already or may as a result suffer other professional or contractual consequences should not be relevant to the sentencing court.

539    In summary, the Prosecution submitted that there could no doubt that the accused’s offences were serious, and that the Defence’s submissions for a non-custodial sentence were unmeritorious, unprincipled, and unsupported by precedents, and that they trivialised the seriousness of the accused’s offending. Hence, the Prosecution repeated its submissions for a custodial sentence of 8 – 12 months’ imprisonment.[note: 309]

Decision on Sentence

540    I begin by setting out the approach that I would be adopting in sentencing before explaining how I arrived at the final sentence.

Approach to Sentencing

541    Both parties agreed that the appropriate sentence to be imposed should be determined with reference to the aims of the SFA, i.e. (a) the protection of investors; (b) the protection of public confidence in the market; and (c) ensuring that the operation of the market is not distorted (see Ng Sae Kiat). I further noted that at [58] of that case, the Court had made clear that:

(a)     Distortion of market information is not a necessary condition for a custodial sentence to be imposed in respect of a s 201(b) offence. It is important to bear in mind that s 201(b) is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities.

(b)     While recognising the aims of the SFA, the Court further noted that “…given the broad scope of offences criminalised in s 201(b), the absence of direct contravention of one of these aims should not necessarily preclude the imposition of a custodial sentence in respect of an offence under that section.”

542    In the present case, in deciding on the appropriate approach, I also considered the guidance provided by See Kee Oon JC (as he then was) in Lee Chee Keet. This was a case that both the Prosecution and the Defence referred to in their various submissions.

543    In Lee Chee Keet, See JC had considered earlier cases that dealt with offences under s 201(b) of the SFA and s 102(b) of the SIA (which was the predecessor of s 201(b) of the SFA), and also distilled the relevant sentencing principles and factors that should be considered for such offences. I have set out below some guidance provided by See JC in Lee Chee Keet.

(a)      First, at [22], See JC noted that in Cheong Hock Lai, it was observed that for charges under s 102(b) of the SIA (the predecessor of s 201(b) of the SFA), the common thread in all the cases in which custodial sentences were imposed for offences under s 102(b) of the SIA was that there was “a clear abuse of position by professional securities dealers vis-à-vis laymen investors who came to them for assistance and advice on trading” (at [38]).

(b)      Second, at [26], See JC disagreed with the proposition that the case of Ng Geok Eng, where the offender had pleaded guilty to and was convicted of three charges under ss 197(1) and 201(b) of the SFA as well as one charge under s 102(b) of the SIA, stood for the proposition that a fine should invariably be imposed in all types of cases brought under s 201(b) as long as the offence in question does not cause detriment to innocent investors.

(c)      Third, See JC also considered the case of Wang Ziyi Able. There, the respondent had been charged under s 199(b)(i) of the SFA with disseminating information that was false in material particulars on an online forum at shareinvestor.com, without caring whether this information was true or false. In allowing the appeal and sentencing the accused to six months’ imprisonment, V K Rajah JA squarely rejected the argument that a custodial sentence would only be appropriate where innocent lay investors had suffered losses. See JC thus commented that the decision in Wang Ziyi Able neatly debunks the appellant’s argument that prior to Ng Sae Kiat, the prevailing sentencing norm for a s 201(b) offence was a fine unless identifiable, innocent members of the public had been defrauded and had suffered losses. See JC also commented that this was also a salutary reminder that a period of incarceration may be appropriate even in cases where a fiduciary relationship or the offender’s position of authority over those affected is absent on the facts. (at [27])

544    In addition, See JC commented generally about the limitations in relying on sentencing precedents for s 201(b) offences. At [28], his Honour stated:

… the above cases illustrate the variety of offences and factual matrices that could be brought under s 201(b) of the SFA. Therefore, it may, in appropriate cases, be useful to have regard to sentences imposed for offences under other provisions of the SFA when determining an appropriate sentence for s 201(b) offences. It stands to reason that one should not readily assume that a sentence imposed in another s 201(b) case would invariably serve as a useful reference point simply because it also involved another offence for which a charge was preferred under s 201(b). It also follows that greater care must be taken when making reference to precedents involving s 201(b) as a guide to calibrating sentences.

[emphasis added]

Further, See JC added at [30] that:

…given the broad range of s 201(b) offences and the differing degrees of culpability of offenders, I was not convinced that a common and uniform “sentencing norm” should or can be established across all types of s 201(b) offences save for factors that could assist in assessing the public interest at stake which would in turn determine the type of sentence to be imposed.

545    In dealing with the appeal against sentence, See JC also set out certain considerations that are useful for our present case. I have summarised them below:

i)      The relevance of the factors in Ng Sae Kiat

To determine whether a custodial sentence is warranted, the non-exhaustive of factors set out by the High Court in Ng Sae Kiat at [58] , which are distilled from relevant precedents, was applicable i.e. that the court should consider: (a) the extent of the loss/damage caused to victim(s); (b) sophistication of the fraud; (c) the frequency and duration of the offender’s unauthorised use of the relevant account; (d) extent of distortion, if any, to the operation of the financial market; (e) the identity of the defrauded party (i.e., whether the defrauded party is a public investor or a securities firm); (f) relationship between the offender and the defrauded party; and (g) the offender’s breach of any duty of fidelity that may be owed to the defrauded party. I reiterate that these factors were distilled from relevant precedents and are therefore not new to this area of the law. (at [31])

…

As noted in Ng Sae Kiat, it is necessary to consider all the facts of the case to determine if the offending conduct in question warrants a custodial sentence. Not all the factors enumerated in Ng Sae Kiat might be relevant or applicable in every case and in determining the appropriate weight to be given to the pertinent factors, much would ultimately turn on the individual circumstances before the court. (at [32])

ii)      On personal gain as an aggravating factor

See JC accepted that the motive for the offence, and the quantum of gains made, are relevant aggravating factors in market misconduct cases, and that the commission of an offence for personal gain is generally an aggravating factor (see [46] – [47]). His Honour stated:

… I considered it established beyond peradventure that the motive for and the quantum of gain were relevant aggravating factors in market misconduct cases. In Wang Ziyi Able, V K Rajah JA stressed that the fact that the offender stood to gain from the gamble of making a false statement was an additional aggravating feature (at [24]). The same point was reiterated in Ng Sae Kiat where the High Court agreed that personal gain was an aggravating factor that warranted a custodial sentence (at [64]).” (at [46])

…

It is settled law that the commission of an offence for personal gain is generally an aggravating sentencing consideration... (at [47])

….

The appellant had hoped to gain by selling the shares during the period of the moratorium and he certainly did gain handsomely, even having regard only to the amount of $573,548.40 that was quantified by the defence in their submissions below. This gain far exceeds the gains made by several of the respondents in Cheong Hock Lai and Ng Sae Kiat. This gain far exceeds the gains made by several of the respondents in Cheong Hock Lai and Ng Sae Kiat. In Cheong Hock Lai, the respondents each made total profits ranging from $16,162.32 to $107,925.29. In Ng Sae Kiat, the respondents made profits ranging from $9,000 to $45,000.” (at [44])

[emphasis added]

iii)      As regards market impact

This could have been a relevant consideration but was not considered an aggravating factor on the facts of that case. See JC stated at [38]:

In the present case, notwithstanding the lack of evidence of actual quantifiable loss, the investing public was fed misleading information which had the potential to affect their investment decisions. It could be said that the integrity of the market was thus affected by the circulation of the misleading information and the appellant’s misconduct could have had potentially deleterious consequences for the financial market. …That having been said, there was no evidence about the materiality of such misleading information or its actual impact on the market. This in no way excuses or mitigates the appellant’s misconduct but I did not consider it appropriate to deem this an aggravating factor in the circumstances.

[emphasis added]

iv)      On premeditation, planning and efforts to avoid detection

See JC stated at [48]:

In my view, the high degree of premeditation and careful planning that went into creating the very elaborate scheme to secure the opportunity for gain while at the same time avoiding detection was a significant aggravating factor in favour of a custodial sentence.

v)      On the alleged delay in prosecution

See JC stated at [51].

I had no difficulty in accepting the general proposition that where there has been an inordinate delay in prosecution, the sentence should in appropriate cases reflect the fact that the matter has been held in abeyance for some time, possibly inflicting undue agony, suspense and uncertainty on the offender: Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 at [23]. However, it is clear from the District Judge’s grounds of decision that the substantial delay had been taken into account.… In any case, I would observe in passing that the degree of leniency that should be shown to the appellant to account for the delay in prosecution should be decided with the countervailing public interest in punishing and deterring serious market misconduct in mind.”

[emphasis added]

546    Based on the facts in Lee Chee Keet, See JC affirmed the decision of the DJ to impose an imprisonment sentence but reduced it from 6 months to 4 months, as he took into account “…the appellant’s cooperation with the authorities including his willingness to testify against his fellow director” (see [53]). Further, his Honour was of the view that the DJ had “…accorded undue weight to certain considerations in sentencing and had thus calibrated the sentence at a level which was inappropriately high.” (at [57])

547    Separately, I also considered the decision of the District Court in Loo Kiah Heng. As stated earlier, this case involved two offenders, one of whom played broadly the same role as the accused and was in a somewhat similar situation, in that he was a fund manager, and the offences were committed in connection with his position in managing a fund. This case was also referred to by both the Prosecution and the Defence in their sentencing submissions.

548    At [51] of Loo Kiah Heng, the Court commented that “…It must be impressed upon persons placed in positions of trust in investment houses and the like that they cannot misuse the assets placed in their care and expect to get away lightly.” The sentences imposed by the DJ were upheld on appeal. I will discuss this case in greater detail at a later part of these GD.

Why a custodial sentence rather than a fine should be imposed

549    I first deal with the issue of whether a custodial sentence or a fine should be imposed. For this purpose, I considered the relevant sentencing considerations, especially those referred to in Ng Sae Kiat, Lee Chee Keet, Loo Kiah Heng, and other relevant cases.

(1)    Huge losses caused to SP1 investors who had entrusted their investments to the accused to manage

550    On the extent of losses caused to investors, the Prosecution submitted that the losses caused in this case were very significant and totalled US$324,500 (about S$491,831) (see [493(a)] above).

551    On the other hand, the Defence’s primary position was that no actual loss was caused to the investors of SP1 (see [471]).

552    On the issue of loss caused to the SP1 investors, I accepted that based on the Morgan Stanley bids that were reflected in the charges that the accused was convicted of, the losses totalled US$324,500 (about S$491,831). This exceeded the sums set out in the cases relied on by the Defence, and was close to the maximum prescribed fine that could have been imposed for both charges taken together (i.e. S$500,000). I thus did not see it fitting to impose the kinds of fine imposed in Ng Sae Kiat or Cheong Hock Lai, or even the total fine of $300,000 suggested by the Defence as being the appropriate sentence, especially in light of other considerations which I will discuss further.

553    In addition, as noted earlier, the present case involved the accused who, as a portfolio manager of a sub-fund, SP1, was entrusted with and given full discretion to deal with the assets of SP1 on 19 January 2016. This was similar to the situation in Loo Kiah Heng involving the offender Soh, the fund manager who conspired with Loo to operate a fraud on Soh’s investment firm. At [54] of that case, the Court noted that the situation was more akin to a criminal breach of trust than the mere misuse of information or a trading account. This fact, combined with the manner in which the transactions were carefully executed and concealed, the length of time over which the offences took place, the scale of the resultant benefits to the accused persons, and the gravity of the corresponding loss suffered by the victim, led the Court there to conclude that a custodial term was necessary, even though the accused person Loo, was willing to disgorge the full profits of S$842,353.51.

554    I would add that many of the same, though not all, of the factors that applied in Loo Kiah Heng similarly existed in the present case, something which will be elaborated on further. On the other hand, there was no disgorgement of profits by the accused in the present case, unlike in Loo Kiah Heng where the disgorgement of profits by Loo was regarded as a very significant mitigating factor, that contributed to his aggregate sentence being four months’ imprisonment, as compared to the aggregate sentence of eight months’ imprisonment imposed on his co-accused Soh, the fund manager.

(2)    Profit as a motive and the huge personal benefits made

555    I next considered the profit motive for the present offences, and the quantum of gains made by the accused, all of which were recognised aggravating factors highlighted by See JC in Lee Chee Keat.

556    As pointed out by the Prosecution, the accused had indicated in his statement P82 that he decided to activate SP5 to buy the bonds even before his Bloomberg conversation with Haitong, because he liked the MIE bonds. The impetus for the commission of the offences was thus his desire to acquire the MIE bonds for SP5, the fund of which he had almost total ownership. This could be seen from his answer given to the CAD in P82 (Answer to Q674, 675 and 679 – reproduced below).

Question 674

Why did you not sell to Haitong?

Answer

I don't want to sell the Miehol bonds at the price of 25 for MIE18 and 20 for MIE19.

Question 675

Why did you not want to sell at the price of 25 for MIE18 and 20 for MIE19 to Haitong?

Answer

The price was too low, I was ready to buy the bonds at a slightly higher price than Haitong. The price Haitong gave was consistent with the market.

…

Question 679

Can we understanding your thinking at that time, on why did you not sell the bonds to Haitong but rather take them on yourself into SP5?

Answer

I was OK to take on the Miehol bonds at a slightly higher price than what Haitong quoted, because I like the bonds.

[emphasis added]



557    From the facts of the present case, it was not difficult to see why the accused had put in so much of his own money to fund SP5 (the buyer of the MIE bonds from SP1), and go through the very elaborate and urgent steps to set up the mechanisms and structures to carry out the passthrough trades using SP5 as his vehicle to purchase the MIE bonds. In addition, the accused had put in considerable effort and gone through significant trouble to liaise with Mr Reshad to prepare for the passthrough trades, just so as to ensure the passthrough of the MIE bonds from SP1 to SP5. The acquisition of these bonds from SP1 by SP5, clearly garnered the accused tremendous personal profits at the end of the day, whichever way one looks at it, even if I accepted the quantum of the accused’s profit as US$971,660.914 (S$1,472,705.56), the figure put forward by the Defence to me in court on 2 July 2024.[note: 310]

558    In this regard, at the point of sale of the MIE bonds by SP1 on 19 January 2016 at 10:41:14 a.m., and the purchase of the same bonds by SP5 at 10:44:57 a.m., even if one discounted the Morgan Stanley bids which the Defence argued were no longer executable by 10:41:14 a.m., there were outstanding BNP and SC Lowy bids for one or both of the MIE bonds at prices considerable higher than what SP1 sold, and what SP5 bought them, via the passthrough trades.

559    I further noted that the accused would in fact have made instantaneous gains after the passthrough trades, and could have even immediately cashed out and sold the MIE bonds on 19 January 2016 itself at a considerable profit. This he could possibly do, by onward selling (on behalf of SP5 after 10:44:57 a.m.) to BNP, SC Lowry or Morgan Stanley (whose Ms Goyal had informed him to “please refresh before trading”), all of whom were clearly still interested, and continued to maintain their desire to buy one or both of these bonds, even after the passthrough trades had already concluded (with Ms Goyal even asking the accused “Wei.. presume nothing on the MIEHOLs” at 10:45:02 a.m. – see P64). Further, in the case of BNP, Ms Tsang was actually interested not only in both the MIE bonds but also in the Indika bond as well.

560    However, the accused did not encash the MIE bonds for immediate gains on 19 January 2016. Instead, he chose to keep the bonds with SP5, likely because the accused liked the bonds and saw further potential upside. The accused’s decision was clearly well thought through and it was fully vindicated only two or three months later in March/April 2016 where, by the Prosecution’s calculations, the accused made much higher profits when he sold both bonds to the market for a total profit of US$1,163,023.12 (or around S$1,522,328.06)

561    In this regard, I accepted the Prosecution’s calculation of the profits made by the accused, since the accused held, directly or indirectly, shareholdings of about 99% of SP5, which was the buyer of the MIE bonds from SP1 (see [520] above). Hence, the accused was the clear and obvious beneficiary of the passthrough trades.

562    Further, the accused clearly could, and in fact did, determine, through his control and oversight of Mr Lai’s trading activities in SP5 and SP9 (which obtained the MIE19 bonds from SP5), the manner, timing and prices that the MIE bonds were onward sold by SP5 and SP9 to the market. These subsequent sales resulted in huge gains in profit for the accused who owned 99% and 100% of SP5 and SP9 respectively Indeed, this ability of the accused to control and determine the ultimate disposal and sale of the MIE bonds meant that he was fully able to control how the MIE bonds were dealt with, and hence reaped for himself huge profits of US$1,163,023.12 (or around S$1,522,328.06).

563    I further accepted the Prosecution’s argument (see [525] above) that, unlike the situation in Madhavan Peter, the accused here could, as Mr Lai’s superior and the person who had oversight of Mr Lai’s trading activities, ultimately control and decide how and when the MIE bonds would be disposed of. In this case, he decided on the disposal in a manner that resulted in huge gains for himself.

564    Clearly, in light of the vast profits made by the accused, even the maximum fine that could be imposed for both charges, which totalled only S$500,000, would be woefully insufficient, as the accused would still be unduly enriched by more than S$1 million afterwards. Imposing a fine in such circumstances would effectively be making a mockery of the justice system, as it would not only be completely inadequate and deficient as a punishment and a deterrent, but it may potentially even send out a perverse message that crime actually does pay, to the tune, in this case, of well over a million dollars.

565    I would add that in coming to the conclusion that imposing a fine as a punishment was completely misguided and inappropriate in the circumstances, I was guided by the words of See JC in Lee Chee Keet at [56] that “…the imposition of custodial sentences in appropriate cases was necessary to deter potential offenders who might otherwise be willing to risk a monetary slap on the wrist if and when they were apprehended (Wang Ziyi Able at [30])."

566    I also considered the Defence’s argument that given the volatile, chaotic, and difficult market conditions in January 2016, which the Prosecution’s experts accepted, and the inherently risky nature of commodity-linked securities, there was no guarantee or certainty that prices for the MIE bonds would have rebounded or recovered after they had been purchased by SP5.

567    However, such an argument ignored the fact that it was a considered decision of the accused to buy the MIE bonds as the portfolio manager and majority shareholder of SP5, and to decide on how to deal with the bonds thereafter. Neither of these were apparently ill-considered or illogical decisions, including the decision of the accused to hold onto the MIE bonds, which potential he obviously saw when he decided to keep them instead of immediately realising his considerable gains even on 19 January 2016 itself. His obvious faith in these bonds was realised and vindicated by the massive profits he subsequently made, which went well even beyond his initial already substantial gain that he could have immediately capitalised on, had he sold the bonds on 19 January 2016 after purchasing them from SP1.

568    Indeed, in light of the clear and complete control that the accused had over the dealings and disposal of the MIE bonds from SP5 (and SP9), I also agreed with the Prosecution that a parallel could be drawn with Lee Chee Keet, where in the context of the loss that the offender avoided there, the Court had observed at [44] that “[i]f the post-IPO share prices had fallen, presumably he would have simply bided his time until he felt the time was right to sell, and he would have done so if he deemed it expedient to reduce his exposure and minimise losses.”. The Court there had further remarked at [45] that the appellant had gained “…from having engineered for himself the flexibility of cashing out within the period of the moratorium and at opportune times when he was not supposed to have done so.” (see [521] above)

569    In the present case, being the person who oversaw and approved how Mr Lai would and could deal with the MIE bonds, being the majority shareholder of SP5 (with direct and indirect shareholdings of 99%), and finally also being the sole shareholder of SP9, the accused had obvious control as to how, when and how much the MIE bonds would be sold to the market, and this was eventually done resulting – as stated earlier - in huge gains to the accused himself of US$1,163,023.12 (or around S$1,522,328.06).

570    All things considered, the massive gains that the accused made, and his obvious profit motivation for the offences would, in line with the guidance of See JC in Lee Chee Keet, be clear aggravating factors.

(3)    Sophistication of the offence/Premeditation/Planning:

571    Moving on to considering the sophistication of the offences, and related factors such as the presence of premeditation and planning, the evidence already discussed showed that the accused had intentionally effected the sale of the MIE bonds from SP1 to SP5 through the passthrough trades, and did so otherwise than at the highest available prices and with the requisite knowledge that he would cause loss to the SP1 investors and also gains for himself. He clearly could have sold the MIE bonds to Morgan Stanley when they made much higher bids or sought a “refresh before trading” of the bonds with Morgan Stanley as Ms Goyal displayed consistent interest in the MIE bonds. Alternatively, the accused had the option of selling the MIE bonds to the other interested counterparties (BNP and SC Lowy) which were also offering higher prices (for one or more of the MIE bonds) than the prices offered by Haitong. Further, the accused could have used the higher prices that Morgan Stanley, BNP and SC Lowy offered when conducting the passthrough trades, but he did not.

572    In addition, the evidence indicated that the accused did not engage in genuine price discovery, but yet engaged with 11 counterparties, when it would be usual and/or sufficient to engage three to five counterparties as per Ms Low’s evidence while claiming that he wanted to avoid the perception of a fire-sale.

573    There was also evidence that even before engaging the counterparties on 19 January 2016, and specifically even before Haitong provided its bids at 10:08:05 a.m., the accused had intended to use SP5 to purchase the bonds because he liked the MIE bonds. This would explain the elaborate arrangements made by the accused to set up and prepare SP5 before 19 January 2016, and to liaise with Mr Reshad before the passthrough trades on 19 January 2016[note: 311], all for the purpose of effecting the passthrough trades of the MIE bonds to SP5 on 19 January 2016.

574    Other evidence of the elaborate nature of the offences, and the deliberation involved, included the accused’s use of one-on-one chats with Mr Reshad, his deceptive message to Ms Goyal after she asked him whether he was still interested in trading with her (after he had conducted the passthrough trades), and even his alleged lack of attention and reaction to the counterparties which had shown actual and persistent interest in the MIE bonds etc, despite allegedly setting aside time specifically for price discovery with them.

575    In short, there was abundant evidence of sophistication, planning, and premeditation, and of efforts made by the accused before and even after the commission of the offences which showed that his act of carrying out the passthrough trades in a manner that benefitted him and caused losses to the SP1 investors, was not a simple affair, nor one carried out on the spur of the moment.

(4)    Frequency/Duration of the offences

576    The Defence argued that the passthrough trades were conducted within a short window on the morning of 19 January 2016 and that whilst there were two charges, both were part of the same transaction and were conducted as a one-off event. The Prosecution did not submit anything to the contrary, and in fact, accepted that the custodial sentence imposed for each charge should run concurrently. I agreed with both parties that the aggregate sentence ultimately should reflect the fact that the two offences were committed on the same day, and as part of the same transaction, albeit that there was evidence of prior actions taken by the accused in preparation to set up SP5 for the passthrough trades (see [29] above).

(5)    Distortion to the market

577    In light of the nature of the securities involved, I accepted that there was no distortion to the market caused by the accused’s actions.

578    Having said that, the High Court in Ng Sae Kiat at [58] had stated that “We do not agree that the distortion of market information is a necessary condition for a custodial sentence to be imposed in respect of a s 201(b) offence.” The Court had added that “It is important to bear in mind that s 201(b) is broadly worded and it penalises a wide range of fraudulent conduct directly or indirectly linked with the purchase or sale of securities,” and that “…given the broad scope of offences criminalised in s 201(b), the absence of direct contravention of one of these aims should not necessarily preclude the imposition of a custodial sentence in respect of an offence under that section.”

(6)    Identity of the defrauded party, entrustment to the accused and the accused’s position of conflict

579    The Defence highlighted that SP1 was a private investment issued for sale only to selected accredited or institutional investors and that the general retailer laymen public investors were not involved. While that may be the case, I did not think that this factor was something necessarily in the accused’s favour.

580    In this regard, Steven Chong J (as he then was) in PP v AOM [2011] 2 SLR 1057 had made clear at [37] “…the absence of an aggravating factor cannot ipso facto constitute a mitigating factor. This is because a mitigating factor is something which an accused is given credit for …, and it cannot be said that the absence of an aggravating factor is something which the accused should be given credit for…” Thus, that the victim was not a layman or a public investor was neutral at best, and not something the accused should be given credit for.

581    In any event, while Dato Lee of SCL, which was the majority investor of SP1, may have possibly been more financially secure and commercially astute than the ordinary man in the street, I noted that in this particular case, it was because the accused had direct contact with Dato Lee and his representative, Ms Ng, that the accused knew about how desperate SCL was in wanting to liquidate its investments in SP1, to the extent of refusing all advice, including from the accused himself, not to do so. It was under those circumstances, and with this knowledge, that the accused apparently decided to personally carry out the process of disposing of the MIE bonds via the passthrough trades, even though he could presumably have authorised and left Mr Lai to carry out the sale.

582    Yet, given that trust and mandate given to him to manage SP1 and to divest its assets including the MIE bonds, the accused, as the portfolio manager of SP1, and someone who had full control and discretion over how the process of sale of its assets was to take place in terms of the price to sell, the time to sell, the method of sale and the party to sell them to, he had a clear duty to act in the interests the investors of SP1. As the expert witnesses have alluded to and to which the accused agreed, he had a duty to sell the assets of SP1 at the highest possible prices. The accused was thus clearly in a position of trust vis-à-vis the investors of SP1, including SCL, and he had essentially abused that trust.

583    In addition, as previously discussed, the accused was also in an obvious position of conflict. This was because as the portfolio manager of both sub-funds SP1 and SP5, he effectively sold the MIE bonds from SP1 to SP5, when he was the clear majority shareholder of SP5 (with 99% direct and indirect shareholding), and hence he would have had a clear desire to pay the lowest possible price for the MIE bonds, which would clearly and directly act against the interests of SP1 and its investors. Under such circumstances, there was an obvious temptation on his part to offer a lower price for the MIE bonds.

584    As it turned out, the actual price that the accused bided for the MIE bonds (with SP5 as the buyer) which he then accepted on behalf of SP1 acting as its portfolio manager, was clearly a figure lower than the best available price for these bonds. His acts were done to the detriment of the investors of SP1, and to his own personal benefit as the clear majority shareholder of SP5.

585    As for the Defence’s argument that SP1’s investments were successfully liquidated in a short period of time, this was neither here nor there, simply because the accused was expected to complete the liquidation process as part of his duty as the portfolio manager of SP1. Presumably, the accused would have been separated and additionally remunerated or rewarded for doing this work that he was expected to do in any event. Even if this was not the case, it does not excuse his actions in carrying out the acts likely to act as a fraud on investors, in relation to the sale of the MIE bonds, which caused a huge loss to the investors of SP1, and which also resulted in massive profits for himself.

(7)    Difficulty of detection

586    As noted earlier, the Prosecution argued that the offences were difficult to detect and that if not for the letter sent in by Mr Goh to MAS on 31 October 2016, the accused’s offending would have gone undetected. The Defence countered by citing Anthony Soh (DC) (see [503]) where the District Court had remarked at [150(f)] that “[s]ecurities offences are notoriously difficult to detect, investigate and prosecute”. Given that difficulty of detection is a factor that was inherent to most if not all market misconduct cases under s 201(b) of the SFA, the Defence argued that this factor could not in itself be aggravating.

587    However, with respect, the Defence failed to mention that the same DJ in Anthony Soh (DC) had stated in the same paragraph referred to by the Defence that “The difficulty of detection of an offence attracts the principle of general deterrence when considering the appropriate sentence for the offence…” In other words, the difficulty of detection, even in the context of offences under the SFA, could be a reason for enhancing the sentence to serve as a deterrence.

588    I would add that detection may well have been made even more difficult by the accused in the present case as there were elements of concealment of the offences, as evidenced by the accused’s deliberate use of separate chats in his dealings with Mr Reshad of Pareto when conducting the passthrough trades. This was something which Mr Reshad could not understand as he had expected the actual instruction and correspondence for the buying and selling to occur by way of a single group chat, being a straightforward transaction (see [56], [58] and [387(b)] above). Further, the accused’s subsequent misleading response to Ms Goyal of Morgan Stanley (when he told her “all or nothing”), after she had queried him about her bids, also suggested that the accused was trying to give Ms Goyal the impression that he had not accepted her (higher) bids for the MIE bonds because she had not concurrently bided for the Indika bonds.

589    While the Defence pointed out that when SCL requested information on the redemption, the accused had given his approval for such information to be provided although SCL subsequently chose to not access this information, suggesting that there was no effort made by the accused to avoid detection by SCL, I agreed with the Prosecution that this was an inaccurate characterisation of affairs (see [508(d)] above).

590    In this regard, as pointed out by the Prosecution, SCL had requested the “trade logs”, which would only show the details of the trades conducted, for example, the buyers of the assets and the prices, but these would not have shown the full range of bids that the accused had received for the MIE18 and MIE19 bonds before he actually carried out the passthrough trades.

591    Thus, it appeared that even if the trade logs had been given to SCL, they would not have shown to SCL that there were higher available bid prices that the accused knew of before he conducted the passthrough trades and that the accused had not accepted these higher bids. Hence, SCL would have been none the wiser about the circumstances under which the accused had carried out the passthrough trades even if it had obtained the trade logs. In other words, the accused’s misdeeds would still likely have remained undetected by SCL even if the trade logs had been provided to SCL.

(8)    Sentencing precedents did not support a non-custodial sentence

592    In its written submissions, the Defence had enclosed a table of sentencing precedents to argue that a high fine ought to be imposed on the accused. However, I agreed with the Prosecution that the facts of those cases were distinguishable, and hence they were not useful sentencing precedents.

593     First, as explained by the Prosecution, in respect of the case of Ng Hock Ching, unlike the present case, there was apparently no evidence of any loss caused to the victim, nor of any breach of duty or abuse of trust, and the profits made were significantly lower (see [516(a)] above). I would add that factors such as planning and premeditation, in that case, were also present here.

594     Second, in respect of Ng Sae Kiat, as correctly pointed out by the Prosecution (see [516(b)] above), the High Court was primarily constrained by the parity principle to impose a fine, despite otherwise agreeing with the Prosecution there that a custodial term would ordinarily have been warranted as Ng Sae Kiat featured four “…employees in a financial institution [abusing] the duty of fidelity they owe to their employer in a premeditated and brazen manner, over a period of time, for personal gains…displaying a high degree of moral culpability” (see [64]). Thus, as the “mastermind” Vincent Tan had been sentenced to only a fine, and as the four offenders before the Court had likely pleaded guilty after they had factored in Tan’s sentence, the Court eventually declined to interfere with the sentences imposed by the DJ and did not impose a custodial term on the four offenders (at [72]). Further, consistent with what was pointed out by the Prosecution, other points of distinction between Ng Sae Kiat’s case and the present case were that:

(a)     the offenders there pleaded guilty (for which they would have received a sentencing discount), while the accused here claimed trial, for which he would not receive a similar discount;

(b)     there was full restitution by the offenders of the profits that they made (at [37(a)]);

(c)     there was no actual loss there eventually because the brokerage company that was deceived had acted promptly in freezing the funds in the relevant accounts used for the trades (see [63(h)]); and

(d)     the largest amount of financial gain to the offenders was only $45,000, made by the offender Wong (at [17]), while the gains by the accused here were significantly more, coming in at over S$1.5 million.

595     Third, as for Ng Geok Eng, the facts there were very different from the present case, as the s 201(b) offences in that case related to the offender using other persons’ trading accounts to conduct trades without informing the securities trading firms, albeit that he did so with the consent of the account holders. Also, there was no loss caused by the offender’s use of the other persons’ accounts (at [81]). In contrast, in the present case, the accused’s acts had caused substantial losses to the SP1 investors.

596     Fourth, as regards the case of Sia Teck Mong, there was similarly no loss caused or damage caused to the market, nor any gains made by the offenders. The Court also noted that there was no evidence that the securities house or any other person suffered damage (see [516(c)] above).

597     Fifth, as regards the case of Cheong Hock Lai, I accepted the Prosecution’s arguments (see [516(d)] above) that the facts there were less aggravating as the highest profits made were $62,931.90 (for the proceeded charges) and $107,925.29 in total (including the TIC charges) (at [13]). The Court there also expressly considered that the wrongful acts were committed when the respondents were trading on their own accounts rather than that of a member of the investing public. No investor clients were involved (at [30] and [38]), and thus, there was no abuse of position to the detriment of investors.

598    In short, the cases highlighted by the Defence to justify a fine were all clearly distinguishable. I would add that all things considered, the facts of the present case were distinctly more aggravating than the facts in those cases where fines were imposed. Accordingly, having considered the relevant factors, and bearing in mind the guidance of the Courts in Lee Chee Keet, Ng Sae Kiat and the various other cases discussed above, I was of the view that a custodial sentence was clearly necessary in the present case.

599    I now turn to consider the appropriate length of the custodial sentence to impose for each charge, and the aggregate sentence overall.

Length of custodial sentence

600    As for the length of imprisonment to be imposed, I would reiterate the guidance of See JC in Lee Chee Keet at [28] that as far as precedents for s 201(b) offences go “…one should not readily assume that a sentence imposed in another s 201(b) case would invariably serve as a useful reference point simply because it also involved another offence for which a charge was preferred under s 201(b). It also follows that greater care must be taken when making reference to precedents involving s 201(b) as a guide to calibrating sentences.”

601    As such, and having considered the factors put forward by parties, I found the precedents cited by the Defence, even on the question of calibrating the length of custodial sentence, to be generally unhelpful as the facts of those cases were clearly different and, in the case of unreported cases, there was nothing useful to guide me in determining the appropriate custodial sentence.

602    In this regard, I broadly agreed with the Prosecution’s arguments, set out in Annex A of the PFRSS, that the cases cited by the Defence to justify their argument for a 3-week imprisonment sentence (see DRSS at Annex A) were either unhelpful to the Defence, or were distinguishable for various reasons. These included the fact that they were plead-guilty cases, the gains involved were considerably smaller, the use of the accounts was done with the consent of the account holders, there was no evidence of any breach of duty, abuse of trust or of losses suffered by the victims, and/or they were unreported decisions of little precedential value.

603    Instead, the case which I found particularly useful for sentencing was the District Court decision of Loo Kiah Heng which was first cited by the Prosecution and which involved many similar facts and considerations as the present case. Amongst other things, one of the offenders, Soh, was a fund manager who dealt with securities. The sentence imposed by the DJ there was also upheld on appeal to the High Court.

604    Both parties also referred to Loo Kiah Heng, although they highlighted different and/or distinguishing aspects of that case that they felt supported their respective sentencing positions.

605    In the case of the Prosecution, it highlighted that:

(a)     The profits made by the accused in the present case exceeded the total profits of all the charges in Loo Kiah Heng;

(b)     The fund manager Soh, who was not shown to have directly benefitted monetarily from the offences, was nonetheless sentenced to 8 months’ imprisonment; and

(c)     As compared to the accused persons in Loo Kiah Heng who pleaded guilty, the accused here claimed trial to the charges against him.

606    As for the Defence, with reference to Loo Kiah Heng (see [480(b)] – [485] above) it highlighted the following considerations:

(a)      Loo Kiah Heng involved over 37 trades conducted over 20 months and hence, the scale and extent of the conduct in Loo Kiah Heng far outstripped that in the present case.

(b)     The offender Loo could make immediate, guaranteed intra-day contra profits from the difference, exceeding S$842,000 in total (at [2]-[4]), and the married trades were executed in order to feed a relationship that was beneficial to the offender Soh because it would improve his standing in ING and positively affect his income/bonuses. In contrast, in the present case, the Defence argued that the immediate financial impact from the sale of the MIE18 and MIE19 bonds to SP5 through Pareto at the actual executed prices, instead of at Morgan Stanley’s earlier (refreshed) bid prices which totalled US$342,500), was far lower than the amount of S$842,000 in Loo Kiah Heng. The subsequent profit from the onward sale by SP5 of the MIE18 and MIE19 bonds on 7 March 2016 and 25 April 2016 was also purely fortuitous.

(c)     In Loo Kiah Heng, the Court found that Soh had carried out the trades in a manner which he knew would escape detection, and Soh’s acts were “executed with care to avoid detection” (at [45]). In contrast, there was no evidence of any deliberate or covert attempt to cover-up or to otherwise conceal the accused’s interest in SP5 and/or the passthrough from other parties in the present case.

(d)     In Loo Kiah Heng, the securities in question were publicly traded stocks, unlike the MIE bonds which were not traded on the open market and SP1 is a private fund for accredited or institutional investors only.

(e)     There was no indication that the prices of the married trades in Loo Kiah Heng were determined with regard to any point of reference, whereas the passthrough prices were based on the actual firm, valid and executable Haitong bids received.

(f)     Finally, the Defence argued that there was no indication in Loo Kiah Heng that the court considered the plea of guilt as a mitigating factor, or took the guilty plea into consideration for the purposes of sentencing.

607    As I have already given my views about the losses suffered by the SP1 investors, the actual gains made by the accused and his profit motivation, as well as the planning and premeditation involved, I have nothing further to add, save to say that the final profits made by the accused vastly exceeded that made by Loo, and presumably would also have exceeded whatever benefits Soh, the fund manager, would have obtained. Moreover, Loo had made full restitution of the profits he received, something which the accused here has not done.

608    However, in so far as the MIE bonds in the present case were not publicly traded securities, and more importantly, in light of the much more extensive nature of the operation and offences in Loo Kiah Heng, as reflected in the total number of charges proceeded with, the charges taken into consideration, and also the duration of the offences, I accepted that these were clear differences between the two cases. As such, these were significant factors that I did take into account in calibrating the final sentence.

609    Further, while it was clear that the MIE bonds were not publicly traded securities, that did not mean that losses suffered by investors in a private fund i.e. the SP1 investors, should not be considered important, as they were still innocent victims who lost substantial sums of money as a result of what the accused did. Further, while SCL, the majority investor, could not be said to be a vulnerable victim (which would have been an aggravating factor), it was entitled to expect that the accused, the portfolio manager of the fund in which it had invested and trusted to manage, would abide by the law and not seek to unfairly and unlawfully profit himself at its expense. To aggravate its pain as SCL was already desperate to get out of its investment in SP1 due to the losses it had already suffered, the accused’s actions served only to deepen its wounds by causing its losses to be increased.

610    As for the Defence’s argument that the Court in Loo Kiah Heng found that Soh’s acts were “executed with care to avoid detection”, I had also noted that there were similar elements of concealment and deception in the present case (see [588] above).

611    As for the argument raised by the Defence that sentencing precedents must be compared on a charge-by-charge basis, and that it was thus not appropriate to use the global sentence imposed in Loo Kiah Heng as the measure of comparison, I would highlight that in Loo Kiah Heng at [55] the Court made clear that “…although the accused persons were being sentenced for four charges each, [the Court] considered their conduct in its entirety”. Thus, the aggregate sentence of 8 months’ imprisonment imposed on Soh (the fund manager) reflected this reality, including the fact that there were numerous charges taken into consideration for the purposes of sentencing.

612    Thus, the Court in Loo Kiah Heng, in expressly focussing on the aggregate sentence, would also have considered the totality principle where, amongst other things, the sentencing court has to consider whether to re-calibrate the individual sentences so as to arrive at an appropriate aggregate sentence (see Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (“Mohamed Shouffee”) at [58] – [59, [66] – [67])]. This means that rather than looking at the individual sentences in Loo Kiah Heng in isolation, it would be more useful to look at and compare the aggregate sentences when looking at two cases involving multiple charges.

613    I would add that the approach of the Court in Loo Kiah Heng in focussing on the aggregate sentence was also consistent with what the High Court advocated in Tan Thiam Wee v PP [2012] 4 SLR 141 (“Tan Thiam Wee”), where the Court stated at [8] that “It is clear law, and indeed commonsense, that the primary consideration in cases involving multiple charges in circumstances such as the present case, is the totality of the sentence”

614    Thus, applying the same approach in the present case, I was of the view that it would be more useful to consider the conduct of the accused in its entirety, and to come up with an aggregate sentence that was fair and proportionate based on the overall facts and circumstances of the present case. In doing so, it would be appropriate to look at the facts and aggregate sentence for each offender in Loo Kiah Heng, rather than the sentences imposed for their individual charges.

615    Moving on to the issue of a plea of guilt, it is generally accepted that this factor would result in a sentencing discount for offenders. Nevertheless, the Defence argued that there was nothing in Loo Kiah Heng to indicate that the Court there had considered the plea of guilt as a mitigating factor, or that it had taken the guilty plea into consideration in calibrating the sentence.

616    With respect, I did not agree with the analysis of the Defence. Instead, I was of the view that the Court in Loo Kiah Heng was clearly cognisant of the effect of a plea of guilt in sentencing as it made express reference to this factor when considering the sentencing precedents (see [31] – [37] of the case). Further, there was nothing stated by the Court in Loo Kiah Heng to suggest that it had not followed the general approach taken by courts to apply a sentencing discount when an offender pleads guilty. Nor was there any suggestion that the evidence there was so overwhelming that no sentencing discount for a plea of guilt was warranted in Loo Kiah Heng, In short, in line with general sentencing practice and based on the written judgement in Loo Kiah Heng, I was satisfied that the 4 months’ and 8 months’ imprisonment imposed on Loo and Soh respectively had taken into account their respective pleas of guilt.

617    Thus, when there was no plea of guilt, as in the present case, it serves to reason that no sentencing discount for a plea of guilt should be expected by the accused (see Kreetharan s/o Kathireson & Ors v PP [2020] SGCA 91 at [37] (“Kreetharan”). That said, for the avoidance of doubt, I agreed that the accused was entitled to claim trial and I would make it clear he was not penalised in terms of any increase in his sentence as a result of his claiming trial.

618    I would conclude the discussion of Loo Kiah Heng, by dealing with the graduated approach set out in Siow It Loong which the Defence urged me to apply here. This approach was also discussed in Loo Kiah Heng.

619    As correctly highlighted by the Prosecution, the learned DJ in Loo Kiah Heng, does not appear to have accepted that the graduated approach should apply. At [46] of Loo Kiah Heng, the DJ stated that she:

…preferred the view that if a course of conduct was not clearly illegal but the persons involved wanted to embark on it to test the limits of permissible activity, then they would have to bear the consequences of their conduct. I thus considered this to be a neutral point: it did not entitle them to more leniency, but the Court was also not entitled to treat such conduct in itself as aggravating.

[emphasis added]

620    Further, the Prosecution also rightly pointed out that the graduated approach in Siow It Loong does not appear to have been based on any approach previously set out by the High Court, nor has that approach since been endorsed or applied in any reported decision after Siow It Loong. In any event, I agreed with the Prosecution that the more nuanced approach taken by the DJ in Loo Kiah Heng on this issue was also clearly more logical and defensible. It was also the approach which I both preferred and endorsed.

621    On a related point, I would add that I did not agree with the Defence’s submission that there was a danger of over-regulating the financial markets and dampening enterprise on the parts of traders if behaviour such as that of the accused in this case was not dealt with leniently.

622    Instead, I noted that the present case was one where the accused had intentionally carried out acts that he knew were to the detriment of investors of a fund who had essentially entrusted him with the assets of the fund, over which he was given full control of and could deal with, save that it was clearly established, and which both the experts and the accused himself acknowledged, he had a duty to sell the assets of the fund at the highest available price. The accused would also clearly have been aware that by carrying out the passthrough trades at the prices and in the manner that he did, whereby the MIE bonds were essentially sold by SP1 to SP5 at an “undervalue”, he would personally benefit from this transaction because of his own overwhelming ownership and interest in SP5. He would also have known that the investors in SP1 would correspondingly suffer a loss by the same action. Indeed, even while the accused denied that he owed a fiduciary duty to the investors, as discussed extensively above, the accused himself conceded and recognised that he had a duty to the SP1 investors to sell the MIE bonds at the highest available price. Notwithstanding his knowledge and acceptance of this duty, he declined to do what he was supposed to do to fulfil his duty.

623    I would add that the chances of such a scenario happening in the future – where there was a confluence of factors such as (1) the entrustment of the assets of the selling fund to an accused person; (2) that person having complete control of the assets of the selling fund such as to be able to solely decide on all aspects of the trading of its securities including determining who, how, how much, and when the securities would be sold to; (3) that same person having full control of the buying fund which the accused did in the present case as its portfolio manager; and (4) and that same person being in a situation to benefit from the transaction as a result of having a personal interest and benefit in the buying party (which was also what happened in the present case) – was remote. Clearly, the Defence has not shown that the above factors or circumstances are so common or prevalent in the securities industry or among traders, that imposing custodial punishment on the accused in the present case, would lead to a danger of over-regulating the financial markets, or lead to a danger of dampening enterprise on the parts of traders as alleged by the Defence.

624    All in all, I rejected the Defence’s suggestion for the application of the graduated approach referred to in Siow It Loong.

625    I turn now to what the Defence put forward as mitigating factors. Before discussing them in detail, I would again highlight the cardinal sentencing principle that was reiterated by Steven Chong J in AOM at [37] that “…the absence of an aggravating factor cannot ipso facto constitute a mitigating factor. This is because a mitigating factor is something which an accused is given credit for …, and it cannot be said that the absence of an aggravating factor is something which the accused should be given credit for…”

626    As regards the mitigating factors put forward by the Defence, with respect, having carefully considered the Defence’s submissions, I did not consider them to be particularly noteworthy. I elaborate below.

627     First, the accused’s lack of antecedents was only a neutral factor at best, especially in the face of the need for deterrence. In Ng Tai Tee Janet and another [2000] 3 SLR(R) 735, a case cited by the Prosecution, Yong Pung How CJ had stated at [18] that:

The fact that the respondents were first offenders and had pleaded guilty were at best, neutral factors and could not justify the imposition of a fine when there were compelling overriding policy reasons for imposing a deterrent custodial sentence.

628    Similarly, in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 at [65], Chan Seng Onn J stated that:

First, I find the fact that the appellant is a first-time offender to be a neutral factor because it is not positive evidence of good character that could in turn be considered a valid mitigating factor: see Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at paras 21.016–21.017, citing PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [32]. Also, the absence of antecedents is merely the absence of an aggravating factor (ie, the presence of relevant antecedents that thereby evince recalcitrance). It is trite that the mere absence of an aggravating factor cannot be construed as a mitigating factor which the appellant should be given credit for: see Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 at [24]–[26], PP v AOM [2011] 2 SLR 1057 at [37] and Chow Yee Sze at [14].

[emphasis added]

629    In the present case, while the commission of previous offences may have been an aggravating factor in line with the principle of escalation and the need for specific deterrence, the converse was not necessarily true. In other words, the fact that the accused has not committed any offence before should not automatically be considered something that he should be given credit for. In short, on the facts of the present case, his lack of antecedents would at best be a neutral factor.

630     Second, the Defence argued that the accused is of good character by providing one testimonial, and by submitting that the accused had provided “substantial” public service by completing and apparently performing well during his NS stint. However, I agreed with the Prosecution that this argument does not carry much, if any, weight since most other male citizens and Permanent Residents would also have to complete NS, as this is required by Singapore law. Further, without meaning to belittle the accused’s personal achievements or status, all things considered, his record in NS was relatively insignificant compared to the clearly much more substantial contributions of the offenders referred to in the cases of Foo Jong Kan and Knight Glenn, which were the cases put forward in his mitigation plea.

(a)     In Foo Jong Kan, the Court had stated:

23.    …Of greater relevance were his positions on public bodies, such as the Strata Titles Board. His philanthropy was also highlighted. Foo Yung Kuan for his part, is described as being active in community work, particularly in Toa Payoh and the Central Singapore Community Development Council, various temples, and was awarded a National Day award in 2003. He also served on various other boards and panels.

[emphasis added]

(b)     Similarly, in Knight Glenn, at [27] the Court recognised the offender’s distinguished record of public service as follows:

[The offender] joined the Attorney-General’s Chambers on 3 April 1970 and reached the position of a Senior State Counsel. On 16 October 1984, he was appointed Director of CAD and was responsible for the setting-up of the department and also for the success of that department in the investigation and prosecution of commercial crimes. In 1989 he received a strong commendation from the Minister for Finance for outstanding leadership in setting up CAD, and in 1990 he was awarded the Public Administration Medal (Gold). In addition, he had served, among others, the positions of a lecturer/tutor in the Faculty of Law, National University; a consultant in the Practice Law Course organised by the Board of Legal Education; vice-chairman of the Board of Governors for four Anglo-Chinese Schools, and vice-chairman of the Board of Management of Anglo-Chinese Independent School.

[emphasis added]

631    In any event, as rightly pointed out by the Prosecution, the High Court has also made clear that courts generally place limited weight on claims of past contributions. In this regard, Aedit Abdullah J in Leong Sow Hon affirmed the position that past contributions do not confer a ‘Get out of Jail Free’ card on an accused person. At [66(b)], his Honour stated:

Second, in so far as the conception of the “clang of the prison gates” principle in question relies on the offender’s eminence and past contributions to society, with respect, this is not at all a sound basis for a more lenient sentence. In Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 (“Stansilas”) at [84], Menon CJ made clear that it was necessary to “justify the mitigating value of public service and contributions by reference to the four established principles of sentencing: retribution, prevention, deterrence (both specific and general) and rehabilitation”. Without actually elucidating the relationship between an accused person’s eminence and past contributions on the one hand, and particular sentencing objectives which should be met on the facts on the other, there is a real worry that the court may descend into “moral accounting” or sentencing offenders on the basis of their “moral worth”: Stansilas at [88]–[92]. Past contributions may be relevant in so far as they show a capacity for reform, and hence reduce the need for specific deterrence, but are even at the very highest only of modest weight, and are liable to be displaced where other sentencing considerations assume greater importance: Stansilas at [102(c)]. I would further note that the courts do not play the game of “Monopoly”, and that past contributions do not confer a “Get out of Jail Free” card on an accused person.

[emphasis added]

632    Notably, Aedit Abdullah J observed at [67] that it is “difficult to see how such contributions can be relevant to a charge involving fraud”. Similarly, in the context of the s 201(b) charge, where the acts of the accused were “likely to operate as a fraud”, and paraphrasing Aedit Abdullah J, it would be “ difficult to see how such contributions can be relevant to a charge involving [an act likely to operate as] a fraud”.

633     Third, the Defence argued that there was no premeditation involved, nor were the acts part of a sophisticated or elaborate scheme. As I have dealt with these issues earlier (see [571] – [575] above), I say nothing more.

634     Fourth, as regards the issue of cooperation by the accused, the Prosecution challenged this claim, arguing that that was no evidence that the accused had co-operated with the investigations. Specifically, as regards his attending police interviews, the Prosecution pointed out that the accused was required by law to attend such interviews, and that in any event, during these interviews, he had not been forthright nor had he given truthful responses, as seen from his evasive and self-serving answers contained in the accused’s statements that were admitted into evidence.

635    In my view, without delving into specific responses given by the accused in his statements, I would only say that there was nothing contained in the evidence before me during the trial which manifested any evidence of cooperation by the accused, beyond what he was required to do so by law. Simply put, in the words of Steven J in AOM, there was nothing to give the accused credit for.

636     Fifth, the Defence alleged that there was undue delay causing prejudice to the accused. However, with respect, again there was nothing before me that would support this claim by the Defence.

637    In this regard, in Wong Poon Kay, Menon CJ had explained at [66] that:

As a matter of principle, the court may extend leniency in the sentencing of an offender on account of a significant delay in investigation and/or prosecution. This is a nuanced inquiry which first requires the court to be satisfied that there has been an inordinate delay that is attributable to the Prosecution and that the accused person has suffered unfair prejudice as a result.

638    Menon CJ added that:

[67]  Even where it is possible to establish inordinate delay and unfair prejudice, the accused person may not succeed in getting the sentence reduced if there are countervailing reasons not to take into account the delay (such as if the offence is particularly heinous, or if the offender is recalcitrant)…

[68]  Turning to the question of delay, I reiterate that only inordinate delay would warrant considering leniency in sentencing. This means the delay must have been unusually long and not explicable by reasonable grounds…

[emphasis added]

639    In Wong Poon Kay, the Defence there had alleged that there had been a delay in investigations and prosecution for a period of 11 years, from 2 March 2010 when investigations began, to 4 June 2021 when the accused was charged. However, after examining the facts, Menon CJ rejected the Defence’s argument that there had been any inordinate delay and held that there was no basis to reduce the sentence that was imposed. As his Honour decided that there had in fact been no delay, there was no need for him to proceed to the second stage of the enquiry to consider if the accused there had been prejudiced by any delay.

640    It should also be noted that in Wong Poon Kay, Menon CJ expressly disagreed with the decision of the DJ who had reduced the offender’s sentence of 30 months’ imprisonment to a term of 24 months’ imprisonment on the basis of the alleged delay. Despite this, and perhaps fortunately for the accused person there, as there was no cross-appeal by the Prosecution, Menon CJ decided not to interfere with the sentence imposed by the DJ (at [86] – [87]).

641    In the present case, I agreed with the Prosecution that as has been made clear from the witnesses’ evidence, and the exhibits and reports tendered in court, there was no inordinate delay caused in connection with this case. In this regard, it was obvious that the evidence involved was complex and voluminous, and extensive investigations had to be carried out in relation to the offences. Specifically, I accepted the Prosecution’s arguments (see [536] above) that such investigations included examining documents and other evidence from OAIP, APEX, Bloomberg, and the market participants (e.g., Bloomberg chats with BNP, SC Lowry, Haitong, Morgan Stanley and Pareto); interviewing witnesses from OAIP, SCL, and the counterparties, as well as seeking expert opinions and obtaining expert reports from Ms Low and Mr Cheong, and conducting interviews and recording statements from the accused, before he was charged on 22 October 2020. This was about three years and eight months after investigations commenced.

642    In addition, I also considered the fact that this case involved a scenario which was novel, in that the charge was framed under a limb of s 201(b) (“likely to operate as a fraud”), where the law has not been settled in any previously contested trial. Thus, extensive evidence was adduced by BOTH the Prosecution and the Defence to support their respective positions. Both parties had also engaged experts, in fact, at least two experts each, to analyse the documents and to render their opinions. This fact alone reflected the complexity of the case, which, together with the amount of evidence that was adduced and examined, and the contentiousness of the issues, accounted for the time taken to investigate and evaluate the case, and for parties to review their positions.

643    To the extent that the evidence involved technical matters and/or issues which were not always clear cut (e.g. even on the gains that the accused made from the offences), and as the law was not exactly straightforward or obvious, these factors likely influenced how the parties conducted their respective cases.

644    In summary, all things considered, in particular, the complexity of the facts and the law, the volume of evidence concerned, and the involvement of various witnesses including foreign witnesses such as the representatives from SCL and SC Lowy, both of whom testified at the trial, I was of the view that an investigation that spanned less than 4 years could not be said to be inordinately long or to be one that has been delayed.

645    By way of comparison, and as noted above, the Court did not find 11 years to be an inordinate delay in Wong Poon Kay (a case cited by the Prosecution). Similarly, in Tan Kiang Kwang, a case cited by the Defence, a 6-year period to investigate and charge the offender was not found to be a ground to reduce the sentence imposed.

646    While there was some suggestion by the Defence that the trial process itself was lengthy, this was as much a result of the actions of the Defence as it was those of the Prosecution since cross-examination of the Prosecution witnesses accounted for a significant portion of the time spent on adducing evidence in court. It also appeared that the taking of trial dates was affected by the availability of counsel, as much, if not more so, than it was due to the availability of the prosecutors.

647    Further, I considered that the Prosecution had in fact, not called everyone who was connected with the transactions, possibly paring their witness list down to witnesses that they felt would be sufficient to prove their case. For example, they did not call Mr Ray Xie of Haitong to testify, nor various other employees of OAIP whose names were mentioned in the course of the trial. This would have reduced the time taken for the proceedings.

648    Separately, the evidence adduced after defence was called, particularly the evidence led from the accused by counsel (and contested by the Prosecution) also accounted for a substantial portion of the time taken for the trial. In addition, even though the Defence ultimately declined to call their experts to testify, the contents of those purported Defence expert witnesses’ reports were nonetheless used by the Defence in lengthy and protracted cross-examination of the Prosecution experts.

649    Even when it came to sentencing, on the original date of the sentencing mention which was supposed to be on 14 May 2024, the Defence brought up matters in relation to the quantification of the accused’s gains, and this necessitated further submissions and investigations and pushed back the completion of the case. That said these matters, rightly so, had to be fully explored and ventilated before the case could be properly concluded.

650    All in all, I saw no evidence of any delay in this case on the part of either the Prosecution or Defence, let alone any inordinate delay that would have an effect on sentencing.

651    While my finding that there was no inordinate delay would have been the end of the matter, I would add that there was also no evidence of any prejudice caused to the accused in any event. In this regard, I agreed with the Prosecution that much of what the Defence complained about, including the inability of the accused’s wife to travel with him overseas, was due to the accused’s own decision or acquiescence with her being his bailor, hence necessitating that she comply with the relevant bail conditions, which were themselves reasonable and unexceptional.

652    The choice by the Defence of selecting the accused’s wife to be the accused’s bailor was clearly a voluntary and considered decision of both the accused and his wife, presumably made with the awareness of counsel that under the conditions of bail, she would not be able to travel overseas with him.

653    As for the issue of amendments made to the original charges, this was something permitted under the CPC, subject to the requirements set out therein, as well as in case law. In light of the nature of the offences and the evidence presented, I was of the view that the amendments were justified. There was also nothing put forward by the Defence which showed that there was any prejudice caused to the accused, certainly nothing that was not already addressed by the precautions taken in connection with the making of the amendments.

654    In short, I rejected the Defence’s claim that there was an inordinate delay in the conduct of this case, let alone a delay that caused prejudice to the accused.

655     Sixth, as regards the Defence’s argument that the accused had suffered significant reputational damage and, arising from the investigation and present charges, and that he has not been able to work in the fund management industry as a fund manager thereby resulting in a loss of job opportunities, I agreed with the Prosecution that a similar argument had been expressly rejected by Menon CJ in Stansilas, In that case, the offender argued that he was already punished by facing disciplinary proceedings in the army and would also suffer from adverse consequences at work. However, Menon CJ emphatically rejected this argument as irrelevant to sentencing. Instead, his Honour held at [111] that:

A person who breaches the criminal law can expect to face the consequences that follow under the criminal law. Whether or not such an offender has already or may as a result suffer other professional or contractual consequences should not be relevant to the sentencing court.

656    All in all, after carefully evaluating the factors put forward, I was of the view that based on the relevant sentencing considerations and sentences imposed in the pertinent cases, the sentence imposed on the accused should not be as high as the aggregate sentence of 8 months’ imprisonment imposed on the fund manager Soh in Loo Kiah Heng (who faced more charges for offences committed over a greater duration), but that they should be higher than the sentence imposed on Loo, who had received a lower jail sentence because he disgorged his substantial profits, and also pleaded guilty, neither of which had happened in the present case.

657    All things considered, I imposed a sentence of 6 months’ imprisonment per charge in the present case, a sentence which I consider to be fair, proportionate, and one which has taken into account all the relevant considerations. The sentences will run concurrently, for an aggregate sentence of 6 months’ imprisonment.

658    It is my hope that such an aggregate sentence would promote continued investor confidence in our fund management industry, and ensure that individuals entrusted with managing funds uphold the highest standards of integrity and honesty.

659    Finally, it leaves me to thank the DPPs and counsel for coming up with detailed submissions on the issues of guilt and sentence, all of which have been of immense assistance to this Court.

[note: 1]Notes of Evidence (NE) Day 17 (25 August 2023) page 39/24 - 40/14.

[note: 2]NE Day 18 (28 August 2023) page 94/3 - 8.

[note: 3]NE Day 19 (29 August 2023) page 2/7 - 10.

[note: 4]P69 p 3 – Emails between the accused, Mr Lai and Mr Goh between 15 and 22 Dec 2015.

[note: 5]P24 – Redemption Form dated 4 Jan 2016; SOAF at [11].

[note: 6]NE Day 7 (11 August 2022) Page 139:10-23.

[note: 7]DCS Annex B, Table 1 s/n 17.

[note: 8]DCS Annex B, Table 2 s/n 15.

[note: 9]NE Day 6 (10 August 2022) Page 72/9-12.

[note: 10]DCS at [176].

[note: 11]D22 – Board resolution; NE Day 6 (10 August 2022) Page 15/19-16/1.

[note: 12]D23 – WhatsApp chat log between Mr Lai and the accused. NE Day 6 (10 August 2022) Page 43/11-16.

[note: 13]NE Day 21 (31 August 2023) Page 87/24 –88/6.

[note: 14]D26 p 1 – WhatsApp chat log between the accused, Mr Goh and Mr Lai.

[note: 15]D26 p 1.

[note: 16]D26 p 2.

[note: 17]NE Day 16 (24 August 2023) page 93/2 - 12, 100/20 - 24.

[note: 18]SOAF at [14].

[note: 19]D26 p 2 – WhatsApp chat log between the accused, Mr Goh and Mr Lai.

[note: 20]P58 – Email from Kelvin Goh to Tan Choo Hui dated 19 January 2016.

[note: 21]P75 – SP1 Trade List.

[note: 22]NE Day 25 (29 December 2023) Page 38/3 - 8.

[note: 23]NE Day 6 (10 August 2022) Page 145/1 - 11.

[note: 24]NE Day 6 (10 August 2022) Page 151/15 - 24.

[note: 25]NE Day 6 (10 August 2022) Page 69/11 - 72/5.

[note: 26]NE Day 6 (10 August 2022) Page 135/21 - 136/7.

[note: 27]NE Day 5 (8 August 2022) Page 17/3 - 9.

[note: 28]NE Day 6 (10 August 2022) Page 161/23 - 162/6.

[note: 29]NE Day 6 (10 August 2022) Page 87:19 - 22.

[note: 30]NE Day 7 (11 August 2022) Page 33//24 - 34/2.

[note: 31]NE Day 7 (11 August 2022) Page 34//25 - 35/23.; Page 56//23 - 57/14

[note: 32]NE Day 7 (11 August 2022) Page 36//15 - 24.

[note: 33]NE Day 7 (11 August 2022) Page 58//21 - 59/1.

[note: 34]NE Day 7 (11 August 2022) Page 79/21 - 24.

[note: 35]NE Day 7 (11 August 2022) Page 80/4 - 9.

[note: 36]NE Day 7 (11 August 2022) Page 86/23- 87/10.

[note: 37]NE Day 7 (11 August 2022) Page 88/18- 89/19.

[note: 38]NE Day 7 (11 August 2022) Page 97/14- 20.

[note: 39]NE Day 7 (11 August 2022) page 136/9- 14.

[note: 40]NE Day 10 (16 August 2022) page 26/18 - 24; and P67 at [10] and [11].

[note: 41]NE Day 8 (12 August 2022 page 107/14 - 16.

[note: 42]P67 at [10] and [11].

[note: 43]NE Day 8 (12 August 2022) page 51/1 -6.

[note: 44]NE Day 10 (16 August 2022) page 26/18 - 24; and P67 at [10] and [11].

[note: 45]NE Day 10 (16 August 2022) page 11/9 - 13/ 19.

[note: 46]NE Day 10 (16 August 2022) Page 14/16 - 15/ 3.

[note: 47]NE Day 10 (16 August 2022) Page 16/1 - 15/ 3.

[note: 48]NE Day 10 (16 August 2022) Page 19/3 - 21/10.

[note: 49]P67 at [15], [16] and [18].

[note: 50]NE Day 9 (15 August 2023) page 109/18 - 110/9.

[note: 51]NE Day 8 (12 August 2023) page 56/14 - 15.

[note: 52]NE Day 8 (12 August 2023) page 56/20 - 23.

[note: 53]P67 at [24].

[note: 54]P67 at [27].

[note: 55]P67 at [32].

[note: 56]NE Day 10 (16 August 2022) Page 49/23 - 50/4.

[note: 57]P67 at [34].

[note: 58]NE Day 10 (16 August 2022) Page 51/23 – 52/3.

[note: 59]NE Day 10 (16 August 2022) Page 52/4 – 23.

[note: 60]NE Day 10 (16 August 2022) Page 24/20 - 24.

[note: 61]NE Day 10 (16 August 2022) Page 28/7 - 20.

[note: 62]NE Day 10 (16 August 2022) Page 28/7 - 20.

[note: 63]NE Day 10 (16 August 2022) Page 93/23- 25.

[note: 64]NE Day 10 (16 August 2022) Page 90/6 - 24.

[note: 65]NE Day 10 (16 August 2022) Page 88/21 – 92/3.

[note: 66]NE Day 10 (16 August 2022) Page 90/25 – 93/2.

[note: 67]NE Day 11 (14 August 2023) page 79/15 - 80/2.

[note: 68]NE Day 12 (15 August 2023) page 107/4- 108/ 9.

[note: 69]NE Day 12 (15 August 2023) page 12/3 - 22 and P68 at [11].

[note: 70]P68 at [11].

[note: 71]NE Day 12 (15 August 2023) page 120/12 - 13.

[note: 72]P68 at [14] and [15].

[note: 73]NE Day 10 (16 August 2022) Page 6/17- 7/4.

[note: 74]P68 at [18] - [20].

[note: 75]NE Day 10 (16 August 2022) Page 7/12- 16.

[note: 76]P68 at [22].

[note: 77]P68 at [24].

[note: 78]NE Day 12 (15 August 2023) page 67/18- 71/21.

[note: 79]NE Day 10 (16 August 2022) Page 4/5- 21.

[note: 80]P68 at [25].

[note: 81]P68 at [27] – [28].

[note: 82]NE Day 10 (16 August 2022) Page 34/13 - 19.

[note: 83]NE Day 10 (16 August 2022) Page 36/9 - 25.

[note: 84]NE Day 10 (16 August 2022) Page 40/4 - 14.

[note: 85]NE Day 10 (16 August 2022) Page 47/21 - 48/2.

[note: 86]NE Day 12 (15 August 2023) page 80/10 - 80/20; NE Day 13 (16 August 2023 page 32/8 – 12.

[note: 87]NE Day 12 (15 August 2023) page 49/24 - 50/2.

[note: 88]NE Day 12 (15 August 2023) page 132/24 - 50/2.

[note: 89]NE Day 12 (15 August 2023) page 103/24 - 104/4; 136/22 – 137/7.

[note: 90]NE Day 12 (15 August 2023) page 132/10 - 134/5.

[note: 91]NE Day 11 (14 August 2022) page 47/5 - 12.

[note: 92]NE Day 11 (14 August 2022) page 47/13 - 21.

[note: 93]NE Day 12 (15 August 2022) page 132/18 - 22.

[note: 94]NE Day 13 (16 August 2022) page 40/7 - 14.

[note: 95]NE Day 13 (16 August 2023) Page 40/4 - 14.

[note: 96]P68 at [26].

[note: 97]NE Day 12 (15 August 2023) page 114/7 - 115/ 11.

[note: 98]NE Day 13 (16 August 2023) page 15/10 - 19.

[note: 99]See P68 at [30].

[note: 100]NE Day 13 (16 August 2023) page 12/17 - 23.

[note: 101]Morgan Stanley.

[note: 102]PCS at [53].

[note: 103]NE Day 15 (23 August 2023) page 38/1 - 8.

[note: 104]NE Day 17 (25 August 2023) page 42/20 - 24.

[note: 105]NE Day 18 (28 August 2023) page 87/8 - 20 .

[note: 106]NE Day 15 (23 August 2023) page 58/19 - 23.

[note: 107]NE Day 15 (23 August 2023) page 59/10 - 15.

[note: 108]NE Day 18 (28 August 2023) page 75/12 - 16.

[note: 109]NE Day 18 (28 August 2023) page 53/11 - 54/21.

[note: 110]NE Day 18 (28 August 2023) page 80/4 - 22.

[note: 111]NE Day 18 (28 August 2023) page 97/15 – 98/15.

[note: 112]NE Day 18 (28 August 2023) page 111/12 – 20.

[note: 113]NE Day 18 (28 August 2023) page 113/2 – 6.

[note: 114]NE Day 18 (28 August 2023) page 116/14 – 20.

[note: 115]With what the Prosecution said was direct and indirect interest of 99% in SP5.

[note: 116]NE Day 18 (28 August 2023) page 116/14 – 123/14.

[note: 117]NE Day 18 (28 August 2023) page 134/5 – p 135/24.

[note: 118]P57 p 1 – Email from Ms Tan dated 18 Dec 2015.

[note: 119]NE Day 17 (25 August 2023) page 49/8 - 14.

[note: 120]NE Day 18 (28 August 2023) page 36/10 - 20.

[note: 121]NE Day 18 (28 August 2023) page 50/20 - 52/8.

[note: 122]NE Day 16 (24 August 2023) page 16/6 - 20.

[note: 123]NE Day 18 (28 August 2023) page 39/5 - 43/11.

[note: 124]NE Day 17 (25 August 2023) page 6/16 - 7/6.

[note: 125]NE Day 18 (28 August 2023) page 16/24 – 18/13.

[note: 126]NE Day 18 (28 August 2023) page 149/7 – 11.

[note: 127]NE Day 19 (29 August 2023) page 36/15 – 37/10.

[note: 128]NE Day 24 (18 September 2023) page 7/4 - 21.

[note: 129]NE Day 18 (28 August 2023) page 39/9 - 17.

[note: 130]NE Day 18 (28 August 2023) page 40/15 - 20.

[note: 131]NE Day 16 (24 August 2023) page 48/10 - 15.

[note: 132]NE Day 23 (5 September 2023) page 47/9 - 18.

[note: 133]NE Day 16 (24 August 2023) page 96/15 - 20.

[note: 134]NE Day 23 (5 September 2023) page 46/10 - 47/8.

[note: 135]NE Day 17 (25 August 2023) page 11/4 - 9.

[note: 136]SOAF at [9].

[note: 137]NE Day 21 (31 August 2023) page 5/16 - 21.

[note: 138]NE Day 21 (31 August 2023) page 44/19 - 23.

[note: 139]NE Day 21 (31 August 2023) Page 5/22 - 6/2; NE Day 24 (18 September 2023) page 84/1 - 14.

[note: 140]P4 p 4 – Morgan Stanley Bloomberg chat; NE Day 19 (29 August 2023) page 95/10 - 17.

[note: 141]P64 – Morgan Stanley Bloomberg one-on-one chat.

[note: 142]It appears that Mr Lai left the chat room at around 10:00:52 am, and only re-joined at around 11:00 pm (P4 p 4 and p 6). the accused testified that this was not the typical format of a Bloomberg chat and therefore he could not explain what Mr Lai did to result in the notification that he had “left the room” in this particular format of the Bloomberg chat - NE Day 19 (29 August 2023) page 44/18 - 45/14.

[note: 143]NE Day 16 (24 August 2023) page 140/23 - 25; NE Day 22 (4 September 2023) page 145/8 - 13.

[note: 144]NE Day 21 (31 August 2023) page 45/16 – p 46/4.

[note: 145]NE Day 16 (24 August 2023) page 96/23 - 99/14.

[note: 146]NE Day 16 (24 August 2023) page 103/22 - 105/11.

[note: 147]P15 p 1 – Pareto Bloomberg chat; NE Day 7 (11 August 2022) page 95/19-25, 97/6 - 20.

[note: 148]NE Day 16 (24 August 2023) page 108/18 - 21; NE Day 17 (25 August 2023) page 18/16 - 23.

[note: 149]NE Day 7 (11 August 2022) page 97/14 - 20.

[note: 150]P12 – Bloomberg chat with MUFJ; NE Day 16 (24 August 2023) page 99/25 - 100/5.

[note: 151]NE Day 16 (24 August 2023) page 109/4 - 6.

[note: 152]NE Day 16 (24 August 2023) page 105/20-24; NE Day 19 (29 August 2023) page 132/22 - 133/2.

[note: 153]NE Day 23 (5 September 2023) page 6/5 - 7.

[note: 154]P4 pp 1-5 – Morgan Stanley main chat. NE Day 16 (24 August 2023) page 72/8 - 10.

[note: 155]NE Day 17 (25 August 2023) page 21/23 - 22/3.

[note: 156]NE Day 17 (25 August 2023) page 2/14 - 3/9.

[note: 157]NE Day 23 (5 September 2023) page 24/17 –25/13.

[note: 158]NE Day 16 (24 August 2023) page 127/7 - 128/9.

[note: 159]NE Day 17 (25 August 2023) page 2/18 - 3/1.

[note: 160]NE Day 21 (31 August 2023) Page 103/24 - 104/1.

[note: 161]P15 p 2 – Bloomberg chat with Pareto. Eastern Standard Time is 13 hours behind Singapore time/ NE Day 6 (10 August 2022) page 44/5 - 23.

[note: 162]NE Day 22 (4 September 2023) page 122/7 - 18.

[note: 163]P15 p 2 – Bloomberg chat with Pareto.

[note: 164]SOAF at [13] and [14].

[note: 165]NE Day 17 (25 August 2023) page 3/23 - 5/6.

[note: 166]DRCS at [34]

[note: 167]Oxford English Dictionary cited at Tab 37 of PBOA V2.

[note: 168]Second Reading of the Securities Industry Bill) at col 1443.

[note: 169]At pp.656.

[note: 170]PCS at [14].

[note: 171]DCS at [31].

[note: 172]PRS at [34].

[note: 173]DCS at [31(b)].

[note: 174]DCS at [68].

[note: 175]Section of the then 102(b) SIA states that: “It shall be unlawful for any person directly or indirectly in connection with the purchase or sale of any securities — (b) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person”

[note: 176]Ng Geok Eng at [34].

[note: 177]DRCS at [37] and [43].

[note: 178]25 “ A person (A) is said to do an act fraudulently if A does that act with intent to deceive another person (B) and by means of such deception, that an advantage should accrue to A or another person or detriment should befall B or another person (other than A), regardless of whether such advantage or detriment is temporary or permanent.”

[note: 179]PCS at [34].

[note: 180]DRCS at [39] – [40].

[note: 181]See for example, s 28(6)(b)(i) SFA, s 31(1)(b) SFA, s 46H(3)(c) SFA, s 86(4)(f)(i) SFA and s 292A(1)(i) SFA.

[note: 182]See DCS at [47] – [53].

[note: 183]PCS at [36(b)].

[note: 184]DRCS at [52].

[note: 185]DCS at [47].

[note: 186]DCS at [50]

[note: 187]NE Day 26 (12 March 2024) Page 14/27 – 31.

[note: 188]PRS at [29]

[note: 189]PRS at [29]

[note: 190]PRS at [25]

[note: 191]PCS at [42].

[note: 192]At p.653 to 654.

[note: 193]At p 1303.

[note: 194]At p 1300.

[note: 195]At p.1101.

[note: 196]At p.396.

[note: 197]At p.397.

[note: 198]See [16] – [17] of PRS.

[note: 199]See [47]- [52] of PCS.

[note: 200]At [1419] and [1430].

[note: 201]PCS at [65].

[note: 202]NE Day 25 (29 December 2023) page 31/27 - 31.

[note: 203]NE Day 1 (1 August 2022) page 29/2 - 5; 52/13 - 17; 80/10 - 11.

[note: 204]NE Day 25 (29 December 2023) page 23/22 - 24/10.

[note: 205]NE Day 25 (29 December 2023) Page 31/2 - 9.

[note: 206]NE Day 18 (28 August 2023) page 90/15 - 21.

[note: 207]NE Day 14 (21 August 2023) page 6/15 - 25.

[note: 208]DCS at [292] – [293].

[note: 209]See [243] above.

[note: 210]NE Day 18 (28 August 2023) page 53/11 - 54/21.

[note: 211]NE Day 23 (5 September 2023) page 118/17 - 23.

[note: 212]NE Day 2 (2 August 2022) page 10/20 - 11/7.

[note: 213]NE Day 16 (24 August 2023) page 142/18 - 22.

[note: 214]See P4 (‘Mr Lai, One Asia Investment has left the room’); NE Day 19 (29 August 2023) page 79/9 - 12.

[note: 215]P15 and P72; NE Day 22 (4 September 2023) page 111/22 - 25.

[note: 216]NE Day 23 (5 September 2023) page 131/14 - 20.

[note: 217]NE Day 25 (29 December 2023) page 70/9 - 16.

[note: 218]NE Day 25 (29 December 2023) page 5/12-16; 6/9 – 13.

[note: 219]NE Day 25 (29 December 2023) page 38/20 - 40/7.

[note: 220]See [4] of the PRS.

[note: 221]DCS at [324] – [435].

[note: 222]NE Day 25 (29 December 2023) at 12/16 - 29.

[note: 223]DCS at [307] - [312].

[note: 224]NE Day 19 (29 August 2023) page 102/7.

[note: 225]NE Day 19 (29 August 2023) Page 102/9 - 12.

[note: 226]DRCS at [163].

[note: 227]DRCS at [164].

[note: 228]NE Day 19 (29 August 2023) page 111/19 - 25; 118/5 - 13.

[note: 229]NE Day 21 (31 August 2023) Page 62/21 - 63/15.

[note: 230]NE Day 21 (31 August 2023) page 72/16 – 74/6 .

[note: 231]NE Day 21 (31 August 2023) page 67/12 -28.

[note: 232]DRCS at [175].

[note: 233]NE Day 21 (31 August 2023) page 102/15 - 103/15; 104/14 – 19.

[note: 234]DRCS at [175].

[note: 235]NE Day 21 (31 August 2023) page 99/8 - 11.

[note: 236]NE Day 23 (5 September 2023) page 50/19 - 51/12.

[note: 237]NE Day 23 (5 September 2023) page 51/13 - 53/12.

[note: 238]NE Day 19 (29 August 2023) page 104/20.

[note: 239]NE Day 19 (29 August 2023) page 106/21 - 23.

[note: 240]NE Day 16 (24 August 2023) page 104/22.

[note: 241]NE Day 16 (24 August 2023) page 109/20 - 110/21.

[note: 242]See P6. Mr Ray Xie had explicitly informed the accused at 10:08:50 a.m. that “sorry will be 25/MIE 18 and 20/MIE 19 for the block for now”

[note: 243]PCS at [110].

[note: 244]PCS at [107(b)] at footnote 127; see also NE Day 25 (29 December 2023) page 43/20 - 31.

[note: 245]NE Day 21 (31 August 2023) page 36/17 - 18.

[note: 246]NE Day 19 (29 August 2023) page 106/21 - 23.

[note: 247]NE Day 25 (29 December 2023) page 43/20 - 31.

[note: 248]NE Day 16 (24 August 2023) page 70/16 - 19.

[note: 249]NE Day 3 (3 August 2022) page 98/17 - 100/16.

[note: 250]NE Day 25 (29 December 2023) page 49/5 - 9.

[note: 251]NE Day 24 (18 September 2023) page 88/8 -25.

[note: 252]NE Day 19 (29 August 2023) page 10/21 - 23.

[note: 253]NE Day 21 (31 August 2023) page 15/1 - 8; See P82 at Q671 - 672.

[note: 254]NE Day 21 (31 August 2023) Page 15/15 – 21; 16/16 – 20.

[note: 255]DRCS at [187].

[note: 256]SOAF Tab 27.

[note: 257]NE Day 17 (25 August 2023) page 52/6 - 17.

[note: 258]DRCS at [207].

[note: 259]NE Day 22 (4 September 2023) page 11/10 - 18.

[note: 260]NE Day 22 (4 September 2023) page 92/24 – 93/11.

[note: 261]NE Day 22 (4 September 2023) page 114/8 to 117/3.

[note: 262]NE Day 7 (11 August 2022) Page 97/14- 20.

[note: 263]NE Day 22 (4 September 2023) Page 41/20 - 23.

[note: 264]PCS at [108(c)].

[note: 265]NE Day 26 (4 September 2023) page 102/5 - 8.

[note: 266]NE Day 16 (24 August 2023) page 119/14-17.

[note: 267]NE Day 26 (12 March 2024) page 29/1-6.

[note: 268]NE Day 26 (12 March 2024) page 26/11 - 29/6.

[note: 269]DCS at [241] and [242].

[note: 270]See D33, Mr Reshad’s message timestamped at 16:25:57 hrs.

[note: 271]PCS at [108(b)].

[note: 272]DRCS at [207].

[note: 273]After removing Mr Reshad’s own spread.

[note: 274]NE Day 8 (12 August 2022) page 49/19 – 50/15.

[note: 275]NE Day 17 (25 August 2023) page 2/21.

[note: 276]NE Day 17 (25 August 2023) page 24/21 - 22.

[note: 277]NE Day 16 (24 August 2023) page 95/9 - 15.

[note: 278]NE Day 24 (18 September 2023) page 114/22 – 115/3.

[note: 279]NE Day 8 (12 August 2022) page 40/18 - 41/1.

[note: 280]NE Day 19 (29 August 2023) page 87/18 – 25.

[note: 281]NE Day 19 (29 August 2023) page 96/24 – 97/15.

[note: 282]NE Day 7 (11 August 2022) page 36/15 - 24.

[note: 283]P68 p 2 – Mr Cheong’s Expert Report at [12].

[note: 284]NE Day 22 (4 September 2023) page 144/15 - 18.

[note: 285]NE Day 11 (14 August 2023) page 66/11 - 22.

[note: 286]NE Day 12 (15 August 2023) pages 136/4 - 137/7.

[note: 287]NE Day 11 (14 August 2023) page 66/20 - 22.

[note: 288]DRCS at [226].

[note: 289]NE Day 11 (14 August 2023) page 118/4 - 21.

[note: 290]NE Day 18 (28 August 2023) page 122/8 - 12.

[note: 291]NE Day 18 (28 August 2023) page 118/2 - 5.

[note: 292]NE Day 18 (28 August 2023) page 124/24 – 125/3.

[note: 293]NE Day 24 (18 September 2023) page 39/23 - 40/13.

[note: 294]NE Day 21 (31 August 2023) page 127/15 - 128/14.

[note: 295]P68 p 11-12 – Mr Cheong’s Expert Report at [32].

[note: 296]Based on the estimated exchange rate on 19 January 2016.

[note: 297]See P31, page 6 (SP5 NAV Pack for January 2016).

[note: 298]See P68 p 11-12 – Mr Cheong’s Expert Report at [32].

[note: 299]DFRSS at [36].

[note: 300]As stated above, for this calculation, the Defence did not consider the accused’s indirect interest in SP5 held through OAIP.

[note: 301]DFRSS at [38] – [40].

[note: 302]See DFRSS at [42] – [45]. The Defence did not consider the accused’s indirect interest in SP5 held through OAIP.

[note: 303]NE Day 6 (10 August 2022) page 34/10 - 12.

[note: 304]NE Day 1 (1 August 2022) Page 26/7 - 10.

[note: 305]NE Day 27 (11 April 2024) page 42/4 - 7.

[note: 306]The Prosecution had revised the figure for gain made by the accused taking into account as well the accused’s indirect sharing in SP5 (see PFRS at [11]).

[note: 307]See SOAF at [1].

[note: 308]NE Day 21 (31 August 2023), page 34/17 - 21.

[note: 309]PFRSS at [45].

[note: 310]NE Day 28 (2 July 2024) page 3/4 - 7.

[note: 311]For example based on the telephone conversation between Mr Reshad and the accused, transcribed in P55.

"},{"tags":["Criminal Law – Offences – Betting – Gaming Prohibitions – Sentencing Principles – Criminal Procedure and Sentencing – Sentence – Imprisonment"],"date":"2024-09-26","court":"District Court","case-number":"District Arrest Case No 941384 of 2017 and 3 ors, Magistrate's Appeals No 9150 of 2024 - 01","title":"Public Prosecutor v See Chye Huat","citation":"[2024] SGDC 229","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32218-SSP.xml","counsel":["Sunil Nair (Attorney-General's Chambers) for the Public Prosecutor","K Jayakumar Naidu (Jay Law Corporation) for the Accused."],"timestamp":"2024-10-02T16:00:00Z[GMT]","coram":"Wong Li Tein","html":"Public Prosecutor v See Chye Huat

Public Prosecutor v See Chye Huat
[2024] SGDC 229

Case Number:District Arrest Case No 941384 of 2017 and 3 ors, Magistrate's Appeals No 9150 of 2024 - 01
Decision Date:26 September 2024
Tribunal/Court:District Court
Coram: Wong Li Tein
Counsel Name(s): Sunil Nair (Attorney-General's Chambers) for the Public Prosecutor; K Jayakumar Naidu (Jay Law Corporation) for the Accused.
Parties: Public Prosecutor — See Chye Huat

Criminal Law – Offences – Betting – Gaming Prohibitions – Sentencing Principles – Criminal Procedure and Sentencing – Sentence – Imprisonment

26 September 2024

District Judge Wong Li Tein:

Introduction

After a prolonged period of intensive investigations, the police conducted crime-busting operations in November 2016 and arrested 49 persons for their involvement with a major online gambling ring operating out of Singapore by a trio of three brothers. One of those arrested was the Accused, See Chye Huat, male 55 years of age, a trusted runner in the gambling ring and one of the leader’s brother-in-law.

2       The Accused faced four charges proceeded against him as follows:

(a)     One count under s 5(1) of the Organised Crime Act 2015 (Act No. 26 of 2015) (“OCA”) for being a member of an organised crime group from 1 June 2016 to 27 November 2016 in DAC-941384-2017;

(b)     One count under s 5(a) of the Common Gaming Houses Act (Cap 49, Rev Ed 1985) (“CGHA”) for assisting in the carrying on of a public lottery sometime from 1 January 2013 to 1 February 2015 ($8.15 million deposits) in DAC-941385-2017;

(c)     One count under s 11(1) of the Remote Gambling Act 2014 (Act 34 of 2014) read with s 109 Penal Code 1871 for abetting the provision of a Singapore-based remote gambling service from 2 February 2015 to 27 November 2016 ($3.15 million deposits) in DAC-941386-2017; and

(d)     One count under s 11(1)(a) of the OCA punishable under s 11(3)(a) of the same Act for retaining $104,495.00 knowing that it was property obtained by an organized crime group in DAC-941387-2017.

3       After having considered fully the facts of the case, the Prosecution’s Address on Sentence and the Accused’s Mitigation Plea, I sentenced the Accused as follows:

Charge No.

Offence Section

Order of Court

DAC-941384-2017

S 5(1) of the OCA

18 months' imprisonment

DAC-941385-2017

S 5(a) of the CGHA

18 months' imprisonment and a fine of $50,000.00 in default 3 months’ imprisonment

DAC-941386-2017

S 11(1) of the RGA

read with s 109 of the Penal Code

18 months' imprisonment

DAC-941387-2017

S 11(1)(a) of the OCA punishable under s 11(3)(a) of the OCA

8 months' imprisonment



4       The sentences in DAC-941385-2017 and DAC-941386-2017 were ordered to run consecutively but concurrently with the sentences in DAC-941384-2017 and DAC-941387-2017. The aggregate sentence imposed was 36 months’ imprisonment with effect from 6 August 2024 and a fine of $50,000.00 in default 3 months’ imprisonment. The Accused, being dissatisfied, has filed an appeal against his sentence. He is currently serving sentence.

5       These are the grounds for the sentences imposed.

The Charges

6       The proceeded charges read as follows:

DAC-941384-2017 (1st Proceeded Charge)

You…are charged that you, from 1 June 2016 to 27 November 2016 (both dates inclusive), in Singapore, were a member of a group, knowing that the group was a locally-linked organised criminal group, to wit, you acted as a ‘Runner’ of the group which included Seet Seow Huat, Seet Seo Boon, Seet Sian Thian, Lim Beng Tiong, See Mui Khim, and Ang Poh Seng, which had, as one of its purposes, the obtaining of a financial benefit from the commission by Seet Seow Huat, Seet Seo Boon, and Seet Sian Thian, of offences of providing Singapore-based remote gambling services under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014), and you have thereby committed an offence punishable under section 5(1) of the Organised Crime Act 2015 (Act No. 26 of 2015).

DAC-941385-2017 (2nd Proceeded Charge)

You…are charged that you, from 1 January 2013 to 1 February 2015 in Singapore, did assist in the carrying on of a public lottery, to wit, by being a ‘Runner’ who managed monies amounting to approximately $8,154,729.97 particularized as follows:

S/no.

Account no.

Amount

Transactions

1

POSB 085-12XXX-X

S$25,941.80

9

2

DBS 006-7-00XXX

S$5,500.00

1

3

DBS 029-021XXX-X

S$835,270.00

89

4

OCBC 534-012XXX-XXX

S$1,845,754.67

381

5

OCBC 667-848XXX-XXX

S$729,864.00

91

6

UOB 366-304-XXX-X

S$3,374,166.30

364

7

UOB 138-305-XXX-X

S$585,970.00

52

8

UOB 366-302-XXX-X

S$495,336.20

104

9

SCB 42-2-988XXX-X

S$45,503.00

20

10

SCB 53-0-830XXX-X

S$199,424.00

12

Total

S$8,142,729.97

1123



in relation to public lotteries conducted through www.asure6.net and www.888pool.net and you have thereby committed an offence punishable under section 5(a) of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed).

DAC-941386-2017 (3rd Proceeded Charge)

You…are charged that you, from 2 February 2015 to 27 November 2016 in Singapore, engaged with Seet Seow Huat, Seet Seo Boon, Seet Sian Thian, Lim Beng Tiong, See Mui Khim, and Ang Poh Seng (collectively, “the co-conspirators”), in a conspiracy to provide a Singapore-based remote gambling service, through the websites www.asure6.net and www.888pool.net, and in pursuance of that conspiracy and in order to the doing of that thing, you assisted the co-conspirators as a runner in the collection and distribution of prize monies and money’s worth paid or staked by others in remote gambling which amounted to approximately $3,150,673.19 particularised as follows:

S/no.

Account no.

Amount

Transactions

1

POSB 085-12XXX-X

S$45,021.00

12

2

DBS 006-7-00XXXX

S$1,129,977.75

216

3

DBS 029-021XXX-X

S$4,540.00

3

4

OCBC 534-01X-XXX

S$458,149.44

53

5

OCBC 667-84803X-XXX

S$250,000.00

29

6

UOB 366-304-XXX-X

S$446,971.00

123

7

UOB 138-305-XXX-X

S$549,454.00

62

8

UOB 366-302-XXX-X

S$54,000.00

11

9

SCB 42-2-988XXX-X

S$62,900.00

11

10

SCB 53-0-830XXX-X

S$149,660.00

6

Total

S$3,150,673.19

526



a Singapore-based remote gambling service was committed in consequence of your abetment, and you have thereby committed an offence punishable under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014) read with section 109 of the Penal Code (Cap 224, 2008 Rev Ed).

DAC-941387-2017 (4th Proceeded Charge)

You…are charged that you, on 27 November 2016, at or about 5.05pm, at Block 721 Yishun Street 71, #XX-XXX, Singapore, did retain property, to wit, $104,495.00, which you knew was illegally obtained by an organised criminal group which had, as one of its purposes, the obtaining of a financial benefit from the commission by Seet Seow Huat, Seet Seo Boon, and Seet Sian Thian, of offences of providing Singapore-based remote gambling services under section 11(1) of the Remote Gambling Act 2014 (No. 34 of 2014), and you have thereby committed an offence under section 11(1)(a) and punishable under section 11(3)(a) of the Organised Crime Act 2015 (Act No. 26 of 2015).

Statement of Facts

7       The detailed facts of this case were found in the Statement of Facts (“SOF”) which the Accused admitted to without qualifications. For purposes of explaining my decision, I set out briefly the pertinent facts below.

Background information

How the Accused got involved with illicit gambling activities with Eric Seet

8       Sometime in 2011, the Accused was asked by his brother-in-law, 64-year-old Seet Seow Huat Eric (“Eric Seet”), to work in his illegal 4D business as a runner. He was to collect money from punters and other runners of the business and hand the money to Eric Seet personally or to deposit them into specific bank accounts controlled by Eric Seet. The Accused was to work on lottery draw dates, which were typically on Sundays and Mondays, or on the few days thereafter if runners requiredmore time to settle their accounts after the draw dates. In exchange, Eric Seet paid the Accused a monthly salary of S$2500.00.

9       Police investigations found that the Accused’s first transaction for Eric Seet took place on 15 April 2011, and he continued working for Eric Seet until his arrest on 27 November 2016 for a total of 68 months. During this time, he received at least S$ 170,000.00 in remuneration from Eric Seet.

How the Accused got involved with illicit gambling activities with Philip Seet

10     Sometime in 2012, the Accused was also asked by Eric Seet’s brother, 72-year-old Seet Sian Thian Philip (“Philip Seet”) to be a runner for the latter’s illegal 4D business. The Accused would collect money from other people working for Philip Seet either monthly or once every two to three weeks. Philip Seet paid him $3000.00 every year in the form of a red packet during Chinese New Year.

11     Police investigations found that the Accused’s first transaction for Philip Seet took place on 19 April 2012, and he continued working for Philip Seet until his arrest on 27 November 2016 for a total of around five years. During this time, he received at least S$15,000.00 in red packets from Philip Seet.

How the Accused got involved with illicit gambling activities with Steven Seet

12     Sometime in January 2013, the Accused was approached by Eric Seet’s brother, 55-year-old Seet Seo Boon Steven (“Steven Seet”) to be a runner in his illegal 4D business. The Accused would collect money from other runners working for Steven Seet and hand them to Steven Seet. In exchange for his work, Steven Seet paid the Accused $2000.00 monthly and bonuses of $3000.00 annually between 2014 and 2016 in the form of a red packet during Chinese New Year.

13     Police investigations found that the Accused’s first transaction for Steven Seet took place on 3 January 2013, and he continued working for Steven Seet until his arrest on 27 November 2016 for a total of around five years. During this time, he received at least S$94,000.00 from Steven Seet in the form of salary and bonuses.

Total remuneration received by the Accused from the illicit gambling activities

14     For working for Eric Seet, Philip Seet and Steven Seet (collectively known as the “Seet brothers”) in their illegal 4D business up until his arrest, the Accused received a total of S$288,000.00 over the course of 68 months.

Overview of the Seet brothers’ illegal 4D business

15     The Seet brothers were the leaders of a remote gambling organized crime group (“the Syndicate”) from 1 June to 26 November 2016. The Accused was roped in to assist as a runner for the Syndicate as he was a relative and trusted to handle large amounts of money.

16     After a long period of thorough investigations which culminated in raids conducted in November 2016, 49 people were arrested for their involvement with the Syndicate headed by the Seet brothers during this period.

17     Broadly, the Syndicate comprised the following member groups:

(a)     the three syndicate leaders, namely the Seet brothers, who operated remote gambling websites www.asure6.net and www.888pool.net;

(b)     the leaders’ runner, namely the Accused, who took instructions from them regarding the collection and transfer of money from gambling-related activities;

(c)      three administrative and two IT staff who assisted with operations in the Syndicate;

(d)      four shareholders who received a cut of the profits gained or paid for losses suffered by the Syndicate on www.asure6.net and www.888pool.net; and

(e)      three main clusters which actively collected bets, which consisted of:

(i)       a cluster led by shareholder Lim Beng Tiong comprising a runner and two sub-groups;

(ii)       a cluster led by shareholder Lean Kay Cheong; and

(iii)       a general cluster led by the Seet brothers comprising two shareholders and two agents who collected bets.

Administrative and IT staff

18     The three administrative Staff working for the Syndicate were:

(a)     Lai Yen San, female 33 years old;

(b)     Koo Kah Yee, female 30 years old; and

(c)     Tok Poh Ling, female 50 years old.

19     The two IT staff were:

(a)     Woo Woei Juem, male 43 years old, who provided IT website support for the Syndicate’s accounting website, aabooks.net, which he created to keep records of deposits and withdrawals related to the Seet brothers’ illegal remote gambling business; and

(b)     Lim Zhaoming Edwin, male 38 years old, who set up and maintained the illegal 4D websites, www.escrown.net and www.asure6.net.

Shareholders

20     The shareholders of the Syndicate were:

(a)     Seet Siau Khuang, male 71 years old, Philip Seet’s agent who collected illegal bets on the outcome of the 4D and and Toto draws conducted by Singapore Pools (Private) Limited (“Singapore Pools”). A portion of the 4D bets was transferred to www.asure6.net and/or www.888pool.net;

(b)     Wong Choi San, female 64 years old, Philip Seet’s agent who collected illegal 4D and Toto bets. A portion of the 4D bets was transferred to www.asure6.net and/or www.888pool.net;

(c)     Ang Poh Seng, male 56 years old, a shareholder of the remote gambling 4D websites www.asure6.net and www.888pool.net; and

(d)     See Mui Khim, female 55 years old, a shareholder of the remote gambling 4D websites www.asure6.net and www.888pool.net. She was Eric Seet’s wife and the Accused’s sister.

Main cluster led by Lim Beng Tiong

21     Lim Beng Tiong, male 55 years old, was a shareholder and operator of remote gambling websites, www.88lionking.net, www.hub12356.net, www.asure6.net and www.888pool.net. He was assisted by his runner, Lim Beng Yeow, male 47 years old, who would collect and distribute money related to business of the cluster for him. The bets received from the agents within this cluster would be entered into www.88lionking.net and www.hub12356.net, with a portion of the bets transferred to www.asure6.net and www.888pool.net.

22     Lim Beng Tiong’s Cluster comprised two sub-groups. Sub-Group 1 consisted of the following persons:

(a)     Toh Bee Leh, female 59 years old, an agent would assisted Lim Beng Tiong by accepting illegal 4D and Toto bets;

(b)     Siah Thiam Chai, male 70 years old, an agent who assisted Lim Beng Tiong by accepting illegal 4D and Toto bets.

(c)     Neo Lay Wah, female 53 years old, an agent who assisted Lim Being Tiong by accepting illegal 4D and Toto bets.

23     Sub-Group 2 consisted of the following persons:

(a)     Ow Choon Bok, male 43 years old, who operated illegal 4D and Toto website www.ss772.net with Ow Gowan Hock as the co-operator. The bets received from agents within this sub-group would be entered into www.ss772.net. This website was programmed to receive a limited value of bets, with the excess to be transferred to www.88lionking.net;

(b)     Ow Gowan Hock, male 73 years old, who operated www.ss.772.net, with Ow Choon Bok;

(c)     Cheau Biau Teck, male 64 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock;

(d)     Poh Boon Kheng, male 59 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock; and

(e)     Chai Chiek, female 66 years old, an agent who collected illegal 4D and Toto bets for Ow Choon Bok and Ow Gowan Hock.

Main cluster led by Lean Kay Cheong

24     Lean Kay Cheong, male 62 years old, was a shareholder and operator of remote gambling website www.peng8888.com. He was assisted by his runner, Seah Ee Lam, male 68 years old, who would collect and distribute money related to business of the cluster for him. The bets received from the agents within this cluster would be entered into www.peng8888.com or transferred to www.asure6.net and www.888pool.net.

25     Lean Kay Cheong and Eric Seet had an arrangement for a portion of the 4D bets collected by the former to be transferred to the latter. Lean Kay Cheong was also a shareholder of www.asure6.net and www.888pool.net and would receive a cut of the profit from both websites.

26     Lean Kay Cheong’s cluster consisted of the following persons:

(a)     Lim Teng Kok, male 69 years old, Lean Kay Cheong’s master agent who assisted him in accepting illegal 4D and Toto bets for www.peng8888.com. Lim Teng Kok had 16 agents under him who assisted him in collecting illegal 4D and Toto bets;

(b)     Edi, male 40 years old, the IT technician who assisted Lean Kay Cheong with the set up and maintenance of www.peng8888.com;

(c)     Toh Hee Choye, male 65 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(d)     Lim Poi Hwa, female 63 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(e)     Ng Eng Thiam, male 63 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(f)     Ng Kim Huat, male 66 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf;

(g)     Or Poh Soon, male 55 years old, an agent who collected illegal 4D bets on Lean Kay Cheong’s behalf; and

(h)     “Ah Lian”, female age unknown, one of Lean Kay Cheong’s accomplices and an agent who operated out of Malaysia who collected illegal 4D bets on Lean Kay Cheong’s behalf.

The Accused’s arrest

27     The Accused was arrested at about 6.58pm on 27 November 2016 at about 6.58 pm at his home by a party of police officers on suspicion that he had committed offences under the RGA. The following items were seized from him:

(a)     One yellow bag containing S$57,418.00;

(b)     One white envelope containing cash of S$20,000.00;

(c)     One white bag containing cash of S$27,077.00;

(d)     One Samsung Note 5 mobile phone;

(e)     One Samsung Galaxy S4 mobile phone;

(f)     Two calculators;

(g)     Some pieces of paper with entries;

(h)     One OCBC deposit slip;

(i)     One envelope with entries;

(j)     One Nokia mobile phone;

(k)     One stack of paper with entries;

(l)     One blue notepad with entries;

(m)     Some small pieces of paper with 2 clips; and

(n)     One Garmin Global Positioning System.

28     Investigations revealed that the accused maintained five bank accounts which were used solely for monetary transactions connected to the Syndicate’s illegal remote gambling activities:

(a)     DBS bank account number 08366XXXX;

(b)     UOB bank account number 416110XXXX;

(c)     UOB bank account number 899045XXXX;

(d)     OCBC bank account number 55073612XXXX; and

(e)     Hong Leong fixed deposit account number 1104043XXXX.

Facts relating to DAC-9441384-2017 (1st charge)

29     Investigation revealed that from 1 June to 27 November 2016 the Accused was a member of the Syndicate headed by the Seet brothers, involving Lim Beng Tiong, See Mui Khim and Ang Poh Seng. In particular, he was a runner for the Seet brothers.

30     The Accused was aware that the Syndicate was an illegal remote gambling business and worked closely with them by assisting them with the following:

(a)     collecting money from their respective agents, which would either be handed over to them in person or deposited by the accused into their designated bank accounts;

(b)     disbursing cash to their respective agents as payout for winnings under the instructions under their instructions; and

(c)     collecting cheques for payment by their agents to settled their gambling accounts and handing these cheques over to the relevant Seet brother to whom the cheque was made out to.

31     He was aware that the illegal gambling operations were syndicated and organised in nature as the Syndicate utilised assigned code references to its agents and the Accused knew who these code references belonged to. For instance, “B”, “BA”, “BB” and “AS” codes were syndicate members under Steven Seet, whilst the “M” codes indicated syndicate members under Philip Seet. The Accused acted as the sole intermediary between the Seet brothers and their respective agents, and handled all the funds that were transacted between the Seet brothers and the other syndicate members.

32     In this regard, the Syndicate was connected to operators of numerous illegal gambling websites including www.asure6.net, www.888pool.net, www.peng8888.com, www.88lionking.net, www.hub12356.net, and www.ss.772.net, with numerous sub-groups and clusters. Lean Kay Cheong’s cluster alone comprised at least 89 agents, of which only seven were arrested.

33     The www.asure6.net website had at least 36 registered shareholders but not all were successfully arrested. It generated an average revenue of about S$370,000 per 4D draw date, amounting to approximately S$1.11 million in revenue on average per week for three 4D draw dates per week. From 1 June to 27 November 2016 (24 week period), the Syndicate’s estimated revenue amounted to around S$26.64 million.

Facts relating to DAC-941385-2017 (2nd charge)

34     In the course of investigations, Steven Seet identified the Accused as his runner, who would collect and make payments to syndicate members under his instructions and on his behalf. The Accused would also collect and hand over cheques to be deposited into bank accounts controlled by Steven Seet. Whilst he did not always have specific knowledge of what each transaction was for, the Accused was aware that all these funds related to the Syndicate’s illegal gambling activities conducted through www.asure6.net and www.888pool.net.

35     Between 3 January 2013 and 26 January 2015, 1123 cheques were deposited into bank accounts controlled by Steven Seet. Each of these cheques were issued by a syndicate member working under Steven Seet and handed to the Accused, who would in turn hand them to Steven Seet. Investigations showed that the total amount transacted through these bank accounts during this period amounted to S$8,142,729.79 and represented Steven Seet’s earnings from his illegal gambling business during this period. The bank accounts were stated in the table reproduced below:

\"\"

Facts relating to DAC-941386-2021 (3rd charge)

36     Between 5 February 2015 and 24 November 2016, 526 cheques were deposited into bank accounts countrolled by Steven Seet. Each of these cheques were issued by a syndicate member working under Steven Seet and handed to the Accused, who would in turn hand them to Steven Seet. Investigations showed that the total amount transacted through these bank accounts during this period amounted to S$3,150,673.19 and represented Steven Seet’s earnings from his illegal gambling business during this period. The bank accounts were stated in the table reproduced below:

\"\"

Facts relating to DAC-941387-2017 (4th charge)

37     At the time of the Accused’s arrest on 27 November 2016 at about 5.05pm, a total of S$104,495.00 in cash was found in his home and seized as follows:

(a)     one yellow bag containing S$57,418.00;

(b)     one white envelope containing cash of S$20,000.00; and

(c)     one white bag containing cash of S$27,077.00;

38     The Accused admitted that the seized cash were illegal earnings of the Syndicate from their Singapore-based remote gambling activities. The Accused was arrested before he could receive instructions from the Seet brothers on how to handle the money.

Antecedents

39     The Accused was untraced.

Prosecution’s Address on Sentence

40     The Prosecution submitted for a global sentence of 36 to 40 months’ imprisonment and a fine of $50,000.00 to be meted out against the Accused, broken down as follows:

Offence

Sentence sought

1st charge under s 5(1) of the OCA

18 - 20 months’ imprisonment (concurrent)

2nd charge under s 5(a) of the

CGHA

18 - 20 months’

imprisonment

A fine of $50,000.00 for either charge

3rd charge under s 11(1) of the RGA read with s 109 of the Penal Code

18 - 20 months’

imprisonment

4th charge under s 11(1)(a) of the OCA

8 – 10 months’ imprisonment

(concurrent)



1st Charge (DAC-9441384-2017) under s 5(1) of the OCA

41     In respect of the first charge under s 323 of the Penal Code, the Prosecution made reference to the sentencing framework in Public Prosecutor v Hermanto Bin Abdul Talib [2021] SGDC 205 (“Hermanto”) at [11] to [17] to assess the degree of harm caused by the Syndicate, the Accused’s culpability and finally adjusting the sentence for personal aggravating and mitigating factors.

42     It was submitted that the degree of harm caused was at the threshold of moderate and high, whilst the Accused’s culpability in this case was medium. The starting point would be 3 years’ imprisonment based on the Hermanto framework. Adjusting the starting point for personal aggravating and mitigating factors, which was his plea of guilt and lack of similar antecedents, it was submitted that an adjustment to 18 to 20 months’ imprisonment would be condign.

43     The learned DPP highlighted that Lim Beng Yeow (the runner for Lim Beng Tiong) was sentenced to 8 months’ imprisonment for a similar charge while Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment and a fine of $11,000.00.

3rd Charge (DAC-941386-2017) under s 11(1) of the RGA read with s 109 of the Penal Code

44     For the 3rd charge under s11(1) of the RGA read with s 109 of the Penal Code, the Prosecution relied on the sentencing framework in Koo Kah Yee v Public Prosecutor [2020] SGHC 261 (“Koo Kah Yee”) in urging the Court to assess first, the degree of harm caused by the Syndicate, secondly the Accused’s culpability, the starting point sentence before finally adjusting the sentence for personal aggravating and mitigating factors.

45     In this case, similar to Koo Kah Yee, the degree of harm was submittted to be at the lower end of severe and the Accused’s culpability was medium. The starting point as such would be 27 to 30 months’ imprisonment. However, taking into his plea of guilt and lack of similar antecedents, an adjustment to 18 to 20 months’ imprisonment would be appropriate. It was pointed out that Lim Beng Yeow (the runner for Lim Beng Tiong) was sentenced to 10 months’ imprisonment for a similar charge, whilst Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment.

46     In addition to an imprisonment term, the Prosecution urged the Court to impose a fine of $50,000.00 against the Accused in respect of either the 2nd or 3rd charge. The learned DPP pointed out that in Public Prosecutor v Elger Kua Meng Tern [2019] SGMC 5 at [55], it was noted that a fine in addition to imprisonment was necessary under both the CGHA and the RGA to counter the profit motive involved. As the offences under s 11(1) of the RGA, s 5 of the CGHA and s 5(3)(a) of the BA all involve the same legally protected interest, i.e. the interest to protect individuals and society from the harmful effects of illegal gambling services, similar sentencing considerations would apply. Where the offender received profit in excess of S$20,000.00, additional fines ought to be imposed to disgorge the benefits of offending.

47     In view of the fact that the Accused had received the total sum of $288,000.00 as wages rather than profit or criminal proceeds, it was submitted by the Prosecution that an additional fine of $50,000.000 imposed would be appropriate.

2nd Charge (DAC-941385-2017) under s 5(a) of the CGHA

48     For the 2nd charge under s 5(a) of the CGHA, the Prosecution submitted that the sentencing considerations were similar to those in the 3rd charge. Given the virtually identical manner of offending in the 2nd and 3rd charges, the assessment of harm and culpability in the 3rd charge may be adopted for the 2nd charge, save that the Accused’s culpability would be higher due to the larger amount involved in the 2nd charge.

49     Further, it was submitted that if a fine of $50,000.00 was not imposed for the 3rd Charge, it may instead be imposed for the 2nd charge. Although the Accused’s culpability was higher in this charge than in the 3rd charge, the maximum imprisonment term for a charge under s 11(1) of the RGA was higher than that of a charge under s 5(a) of the CGHA. A similar imprisonment term was hence an appropriate calibration on the facts of this case.

50     The Prosecution stated that Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 2 years’ imprisonment and a fine of $92,000 on a similar charge.

4th Charge (DAC-941387-2017) under s 11(1)(a) of the OCA

51     It was submitted that s 11(1) of the OCA targeted any dealings with property that a person in Singapore knows was illegally obtained by an organised criminal group. Under s 11(3) of the OCA, the prescribed punishment for the offence was a fine not exceeding S$250,000 or to imprisonment for a term not exceeding 5 years or to both.

52     The total value of the property dealt with and how integral it was in advancing the Syndicate’s purpose or reach should have a strong bearing on sentence when assessing the harm caused. As for culpability, the duration of the offender’s involvement in dealing with illegally obtained property and the manner in which the offender dealt with said property would be relevant factors.

53     Given that the prescribed punishment for the offences under s 11(1) of the OCA and s 5(1)(a) of the OCA were the similar, the Prosecution sought to use the sentencing matrix as a reference point and indicated that this case would fall under the upper ends of the low harm and low culpability category.

54     Applying the harm-culpability matrix, the indicative sentence would be 1 year’s imprisonment. Adjusting it for the mitigating factors of the Accused’ plea of guilt and lack of similar antecedents, a sentence of 8 – 10 months’ imprisonment would be just and appropriate.

55     The Prosecution pointed out that Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to 16 months’ imprisonment for dealing with $327,661.00.

Running of sentences and global sentence

56     In terms of running of sentences, the Prosecution submitted that it would be just and appropriate for two of the sentences with imprisonment terms between 18 and 20 months to run consecutively to reflect the overall criminality of the Accused’s offending. In addition, the Prosecution submitted that the Accused should be imposed with a fine of $50,000.00 to disgorge his earnings from working as a runner for the Syndicate leaders. The total proposed sentence would not be substantially above the normal level of sentences for the most serious of the individual offences involved such as to offend the totality principle.

57     It was highlighted for the Court’s reference the sentences imposed against other accused persons in the Syndicate with comparable work scopes:

(a)     Seah Ee Lam, the runner for Lean Kay Cheong, was sentenced to a global sentence of 3 years and 4 months’ imprisonment and a fine of $108,000.00;

(b)     Tok Poh Ling, an administrative staff working for the Syndicate, was sentenced to a global sentence of 37 months’ imprisonment and a fine of $92,000.00; and

(c)     See Mui Khim, a shareholder of the Syndicate, was sentenced to a global sentence of 40 months’ imprisonment and a fine of $90,000.

Mitigation Plea

58     Defence Counsel submitted a written mitigation plea on behalf of the Accused submitting for a global sentence of 20 months’ imprisonment and a fine of $20,000.00 with individual sentences as follows:

Offence

Sentence sought

1st charge under s 5(1) of the OCA

17 months’ imprisonment (concurrent)

2nd charge under s 5(a) of the

CGHA

10 months’

imprisonment

A fine of $20,000.00 for either charge

3rd charge under s 11(1) of the RGA read with s 109 of the Penal Code

10 months’

imprisonment

4th charge under s 11(1)(a) of the OCA

7 months’ imprisonment

(concurrent)



59     It was highlighted that the Accused was a family man who valued his family deeply. He had been married for 24 years with a 22-year-old daughter who was pursuing a Diagnostic Radiology degree at the Singapore Institute of Technology. The Accused’s highest level of education was Primary 4 and he had acted on the instructions of his brother-in-law, Eric Seet. His sister, See Mui Khim, was married to Eric Seet. As a result of these criminal proceedings, the Accused’s own bank accounts had been frozen and this had affected his daily life and caused financial burdens to him and his family.

60     The Accused started working for Eric Seet and Steven Seet at their coffeeshop located at Block 416 Bedok Avenue 2 (“the Coffeeshop”). Additionally, the Accused also received a full salary from the other businesses ran by Eric Seet and Steven Seet during the period he was working at the coffee shop. The Accused was tasked with depositing monies into the Syndicate’s bank accounts purely because he was a family member and the Seet brothers trusted him.

61     It was submitted by the Defence that the Accused’s culpability was on the low to medium end of the scale as he was merely acting on orders from the Seet brothers. He was just a runner and did not have much direct involvement in the operations as he did not hold a high position in the Syndicate. He did not want to ask too many questions of Eric Seet as the latter was married to his sister and he did not want to “make things difficult for her”.

62     Defence counsel urged the Court to consider that this was the Accused’s first brush with the law. In terms of culpability, the Defence subnitted that it would be low as the Accused was a “mere runner” and coffee shop employee who simply carried out instructions from the Seet brothers[note: 1], who did all the planning and premeditation of offences. Although he was aware of the ongoing activities of the Syndicate, he did not have a higher level of sophistication in the Syndicate and his culpability would be lower than that of the agents. When the offences came to light, he had cooperated fully in police investigations.

63     Whilst acknowedging that the three-step sentencing framework in Hermanto applied in this case and that the harm caused by the syndicate here was moderate to high, it was submitted by the Defence that the Accused’s culpability was not higher than other runners from other clusters because he “merely helped the brothers bank in the cash, which involved the earnings from the coffee shop, into requisite bank accounts”. In fact, his role in the organisation was “miniscule” compared to the other members in the organisation[note: 2] and he had not personally gained anything[note: 3]. It was further submitted that there were very few aggravating factors in this case, which were outweighed by the mitigating factors.

Sentencing Considerations

1st Charge (DAC-941384-2017) under s 5(1) of the OCA

64     The prescribed punishment under s 5(1) of the OCA was a fine not exceeding $100,000 or an imprisonment term not exceeding 5 years or both.

65     I was guided by the proposed sentencing framework set out in Hermanto, which comprised three steps, namely, (i) to assess the of harm caused by the Syndicate, going on (ii) to assess the Accused’s culpability in coming to a starting point sentence, and finally (iii) to adjust the sentence for personal aggravating and mitigating factors.

66     The sentencing matrix to arrive at the indicative starting point sentence would be as follows:

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Step 1: Assessing the harm caused by the Syndicate

67     In the first step, the following factors relating to the Syndicate would be relevant for the Court’s consideration:

(a)     its illegal purpose and how dangerous or serious it was;

(b)     its organization and scale; and

(c)     the negative impact it had on society.

68     In this case, the raison d’etre of the Syndicate was solely to obtain financial gain from illicit remote gambling activities. In doing so, it had to encourage or at least entice members of the community at large, both local and overseas, to breach gambling laws and indulge in unlawful and addictive behaviour. As observed by the learned Chief Justice in In Koo Kah Yee v Public Prosecutor [2020] SGHC 261 (“Koo Kah Yee”) at [62], the use of the internet acts as a powerful multiplier that extends the reach of gambling activities. The nature and design of online punting often lend themselves to repetitive play and compulsive conduct. This can leads to a proliferation of negative behaviour with an undesirable impact on society.

69     The Syndicate had a wide reach with at least 49 members consisting of shareholders, agents and runners, who in turn engaged with and collected bets from lower tier punters. It even had an overseas operation centre in Malaysia with workers who assisted with maintaining records of illegal bets from the sheer volume of activities which the Syndicate was involved in. An estimated S$26.64 million was generated from the collection of illegal bets through www.asure6.net alone in a six-month period from 1 June 2016 to 27 November 2016. The Syndicate was no old-fashioned punting ring. It utilised technology to create two remote gambling websites with automated standard functions such as the calculation of bets and profits to ensure that operations were efficient and effective, thereby making it easy for both agents and punters to place bets and settle transactions seamlessly.

70     I agreed with the Prosecution that the degree of harm caused by the Syndicate in this case was between moderate and high.

Step 2: Assessing the Accused’s culpability

71     In the next step of determining the Accused’s culpability, the following considerations would be taken into account:

(a)     his role and position in the hierarchy of the Syndicate;

(b)     the degree of control or power which he wielded;

(c)     the duration of his association with the Syndicate;

(d)     the functions he performed in the Syndicate;

(e)     his motives for being part of the Syndicate; and

(f)     his knowledge of the Syndicate’s purpose, scale and activities.

72     The Defence compared the Accused’s culpability to Wong Choi San, a 64-year-old female who was Philip Seet’s agent. She assisted in collecting illegal 4D and Toto bets and regularly transported staff from Singapore to Malaysia. It was submitted that her culpability would be much higher than the Accused as he “only acted as a runner and his task involved banking in cash to the requisite bank accounts”[note: 4]. As she was sentenced to 10 months’ imprisonment with no fine, Defence counsel submitted that the Accused should received the same or a lower sentence.

73     Defence counsel also compared the Accused’s culpability to that of his sister, See Mui Khim, who was a Syndicate shareholder and was actively involved in the Syndicate’s operations. She gave instructions to lower-tier members such as runners and agents and also directed operations in Malaysia. See Mui Khim was sentenced to 40 months’ imprisonment and a fine of $90,000 and it was argued by the Defence that the Accused should receive a lower sentence.

74     Having considered the Accused’s involvement in the Syndicate fully, I was unable to agree with the Defence. The Accused was no “mere runner” in the grand context of the Syndicate’s operations and was not as innocent as he was made out to be. He was considered the “chief runner” of the Syndicate as he worked directly with the Seet brothers and on their instructions, would collect and distribute moneys for illegal gambling operations[note: 5]. Because of his close connection with them, being Eric Seet’s wife’s brother, he was given extensive duties, the most important of which was to deposit revenue collected from the remote gambling websites into bank accounts as instructed by the them. This was a crucial role with huge amounts of monies passing through his hands in the form of cheques. Because it was such an important task, it made sense that the Seet brothers entrusted it to a single person – one in whom they must have had complete trust. The Accused apparently did his job faithfully and and lived up to expectations. The Accused was also relied upon to run the coffeeshop belonging to the Seet brothers. I noted that had been involved in the Syndicate since its early days, beginning from his involvement under Eric Seet from 15 April 2011.

75     I accepted that the Accused was not one of the masterminds in the Syndicate and hence would place his culpability lower than the shareholders, such as his sister See Mui Khim. However, his culpability was the highest amongst the runners and should be placed above the average agent and below one of the Syndicate’s smaller shareholders. I considered that the Accused’s culpability would be medium.

Step 3: Adjusting for personal aggravating and mitigating factors

76     Based on the sentencing matrix, the indicative starting point sentence against the Accused would be 2.5 to 3 years’ imprisonment.

77     In this case, the main mitigating factors in the Accused’s favour would be his plea of guilt and lack of similar antecedents. I compared his involvement with that of Lim Beng Yeow (the runner for Lim Beng Tiong), who was sentenced to 8 months’ imprisonment and Seah Ee Lam (the runner for Lean Chay Cheong), who was sentenced to 16 months’ imprisonment and a fine of $11,000, on a similar charge. As his role was higher than that of Seah Ee Lam, I was of the view that a sentence of 18 months’ imprisonment for the first charge would be appropriate.

2nd Charge (DAC-941385-2017) under s 5(a) of the CGHA and 3rd charge (DAC – 941386 – 2017) under s 11(1) of the RGA read with s 109 of the Penal Code

78     Although the 2nd and 3rd charges concerned different provisions under separate pieces of legislation, I noted that the offending conduct of the Accused forming the subject matter of these two charges were the same in substance, and hence the considerations for the appropriate sentence on each of these charges may take reference from one another.

79     The prescribed punishment for an offence under s 5(a) CGHA was a fine of not less than S$20,000.00 and not more than S$200,000.00, and an imprisonment term not not exceeding five years. The prescribed punishment for an offence under s 11(1) of the RGA was a fine of not less than S$20,000.00 and not more than S$500,000.00 and/or an imprisonment for a term not exceeding seven years.

80     In Koo Kah Yee where the offender was also part of the Seet brothers Syndicate and charged under s 11(1) of the RGA, the learned Chief Justice Sundaresh Menon set out a five-step sentencing framework to be applied for an offence of providing Singapore-based remote gambling services under s 11(1) of the RGA:

(a)     identify level of harm caused by the offence;

(b)     assess the offender’s level of culpability;

(c)     identify the indicative sentencing range;

(d)     identify the appropriate starting point within the indicative sentencing range; and

(e)     make adjustments for offender-specific factors.

Step 1: Assessing the degree of harm caused by the offence

81     In the first steps, factors to be considered in assessing the degree of harm caused would include:

(a)     the aggregate value of bets involved;

(b)     whether a syndicate was involved;

(c)     the involvement of a transnational element; and

(d)     difficulty in detection.

82     In Koo Kah Yee at [60], the Court noted that a transational remote gambling syndicate was involved with an aggregate value of bets collected exceeding $18 million. Whilst ordinary gambling activities were generally hard to detect because they were often carried out in secret, remote gambling activities were even harder to detect due to the added cloak of anonymity to both the provider and participants:

“In a related vein, the difficulty of detecting the offences in question may also be a relevant consideration… It is not surprising that ordinary gambling activities are often carried out secretly in order to evade detection. However, when gambling activities are offered on remote or online platforms, these tend to add a further cloak of anonymity to both the providers and participants and make detection even more challenging… The means by which the offenders provide the remote gambling services and evidence of the methods employed to conceal the illicit activities would also be pertinent considerations.”

83     The offender in Koo Kah Yee was an adminstrative staff and had acted as a runner as well. The degree of harm was placed at the lower end of severe.

84     In the present case, the 3rd charge involved a sum of $3.15 million, whilst the 2nd charge involved a sum of $8.14 million. I was of the view that the degree of harm for the 3rd charge should be placed at the lower end of severe as well.

Step 2: Assessing the Accused’s culpability

85     In the second step to determine the Accused’s culpability, the Court should take into account the following factors:

(a)     the degree of planning and premeditation;

(b)     the level of sophistication;

(c)     the offender’s role in the offence(s);

(d)     his personal gain from the offence(s); and

(e)     the duration of offending.

86     In the context of online gambling, the learned Chief Justice noted that culpability of the offender would be increased as the use of the internet served as a powerful multiplier which extended the reach of gambling activities. For offences under s 11(1) of the RGA, the level of sophistication would entail, amongst other things, consideration of the nature of remote communications used, the modus operandi of the remote gambling ring and the scale of the operations: Koo Kah Yee at [62].

87     Here, the Accused was the runner for the Syndicate leaders and managed five banks account used for the Syndicate’s remote gambling activities. In total, he had deposited around $3.15 million worth of cheques into bank accounts for the Syndicate. Although his earnings from working with the Syndicate did not correspond directly with the high amounts of money which he was tasked to handle, over the course of approximately 5 years, he was paid $288,000.00. I accepted that operatives who we essentially runners carrying out the instructions of their leaders would generally be less culpable than the masterminds behind the criminal operations: Koo Kah Yee at [63]. In this case, the Accused’s culpability would be placed as medium, taking into account all the relevant factors.

Steps 3 and 4: Identifying the indicative sentencing range and the appropriate starting point within the indicative sentencing range

88     Based on the degree of harm caused and the Accused’s assessed culpability, the indicative starting point sentence against the Accused for the 3rd charge would be an imprisonment term of between 2 to 2.5 years as per the sentencing framework in Koo Kah Yee:

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89     The amount of money handled in the 2nd charge, being S$8.14 million, was higher than the S$3.15 million handled in the 3rd Charge.

Step 5: Adjusting the final sentence for personal aggravating and mitigatin factors

90     Having determined the indicative starting sentence, I next considered the offender-specific factors in this case to decide if any adjustments ought to be made having regard to the applicable offender-specific factors. These would be the aggravating factors, which can include offences which make be taken into consideration for purposes of sentences, the offender’s relevant antecedents and evident lack of remorse. In terms of mitigating factors, the Court should consider if the offender had pleaded guilty or claimed trial, and his level of cooperation with the authories.

91     The main mitigating factors here, as for the 1st charge, would be the Accused’s plea of guilt and lack of similar antecedents. I took into account the sentences received by Lim Beng Yeow (the runner for Lim Beng Tiong) and Seah Ee Lam (the runner for Lean Chay Cheong) for a similar charge, which was 10 months’ and 16 months’ imprisonment respectively, and was of the view that a sentence of 18 months’ imprisonment for the 3rd charge would be appropriate against the Accused in this case.

92     Having decided that the Accused should be sentenced to a term of 18 months’ imprisonnment on the 3rd charge under the Koo Kah Yee sentencing framework and given that the subject matter of his offending in the 3rd charge was in essence similar to that in the 2nd charge, I was of the view that 18 months’ imprisonment should be imposed against him viz the 2nd charge as well. In imposing this sentence, I took reference from the sentence received by Seah Ee Lam (the runner for Lean Chay Cheong) on a similar charge at 2 years’ imprisonment and a fine of $92,000.00.

93     The Prosecution had sought for a disgorgement fine of $50,000.00 to be imposed against the Accused in respect of either the 2nd or 3rd charges. The question as to deductions from revenue generated by the illicit activities was also considered in Koo Kah Yee at [41], in cases where the Court imposes a fine. As held by the learned Chief Justice, the purpose of a fine was to disgorge the offender’s actual profits and ensure that he would not be better off by reason of having committed the offence. Fines imposed to disgorge benefits from criminal acts served a confiscatory purpose, such that the Court may take cognizance of the net profit or actual gain made by the offender in calibrating the quantum of the fine: Koh Jaw Hung v Public Prosecutor [2019] 3 SLR 516 at [48].

94     To this end, the starting point for a fine would have been the entire revenue representing the offender’s profits. However, the Court may take into account work rendered by the Accused for legitimate businesses owned by the Seet brothers, in this case, managing the coffeeshop: Koo Kah Yee at [42]. I was mindful of the fact that the sum of $288,000.00 which the Accused received for his services in the Syndicate was not purely profit or financial gain from criminal activities but paid to him as wages for work done. As such, a sum of $50,000.00 would be fair and reflective of the Court’s disapprobation of his involvement in the Syndicate’s operations.

4th Charge (DAC-941387-2017) under s 11(1)(a) punishable under s 11(3)(a) of the OCA

95     The prescribed punishment for an offence under s 11(3)(a) of the OCA was a fine not exceeding S$250,000.00 or an imprisonment for a term not exceeding five years or both, targetting anyone in Singapore who dealt with property knowing that it was illegally obtained by an organised criminal group. The value of the property dealt with and its purpose in advancing the Syndicate’s objectives, as well as the length of time the Accused dealt with the property and the manner in which he did so would therefore have a strong bearing on the sentence to be meted out.

96     This case fell within the upper end of the low harm and low culpability category.

97     In this case, the value of the property dealt with amounted to $104,495.00. I agreed with the Prosecution that this was the lowest amount involved in the charges against the Accused and that given the scale at which the Syndicate was operating, this particular sum of money cannot be said to be was integral to its operations. In fact, the Accused was found with this sum of money and had not yet dealt with it as he was still waiting for instructions from the Seet brothers.

98     Applying the harm-culpability matrix in Hermanto, which would be helpful insofar as the prescribed punishment for both the 1st and 4th charges were similar, the indicative starting point sentence for the 4th charge would be an imprisonment term of 1 year. Calibrating it for the Accused’ plea of guilt and lack of similar antecedents, which were personal mitigating factor, I was of the view that a sentence of 8 months’ imprisonment would be fair and just in this case.

Running of sentences

99     In terms of running of sentences, I was of the view that two of the sentences should run consecutively to reflect the overall criminality of the Accused’s conduct, such that the total proposed sentence would not be substantially above the normal level of sentences for the most serious of the individual offences involved such as to offend the totality principle. In doing so, I took reference from the global sentences which were imposed on other members of the Syndicate with comparable roles and job scopes as follows:

(a)     Seah Ee Lam (the runner for Lean Chay Cheong) was sentenced to a global sentence of 3 years and 4 months’ imprisonment and a fine of $108,000.00;

(b)     Tok Poh Ling (an administrative staff working for the Seet brothers) was sentenced to a global sentence of 37 months’ imprisonment and fine of $92,000.00; and

(c)     See Mui Khim (a shareholder of the Syndicate and Eric Seet’s wife) was sentenced to a global sentence of 40 months’ imprisonment and a fine of $90,000.00.

Conclusion

100    In summary, I imposed the sentences against the Accused as follows:

Charge No.

Offence Section

Order of Court

DAC-941384 -2017

s 5(1) of the OCA

18 months’ imprisonment

DAC-941385 -2017

s 5(a) of the CGHA

18 months’ imprisonment and a fine of $50,000.00 in default 3 months’ imprisonment

DAC-941386 -2017

s 11(1) of the RGA read with s 109 of the Penal Code

18 months’ imprisonment

DAC-941387 -2017

s 11(1)(a) punishable under s 11(3)(a) of the OCA

8 months' imprisonment



101    The sentences in DAC-941385-2017 and DAC-941386-2017 were ordered to run consecutively but concurrently with the sentences in DAC-941384-2017 and DAC-941387-2017. The aggregate sentence imposed on the Accused was 36 months’ imprisonment with effect from 6 August 2024 and a fine of $50,000.00 in default 3 months’ imprisonment.

102    In ordering the sentence against the Accused, I was mindful that it did not offend the totality principle, that it was not a crushing sentence and that it was in keeping with his past record and his future prospects of rehabilitation.

103    The Accused being dissatisfied with my decision had lodged an appeal against his sentence. He indicated that he did not wish to apply for bail pending appeal and is currently serving sentence.

[note: 1]Mitigation plea at [22]

[note: 2]Mitigation Plea at [26]

[note: 3]Mitigation Plea at [27]

[note: 4]Mitigation Plea at [29]

[note: 5]Reference to description of the Accused at [4(b)] of Koo Kah Yee.

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Public Prosecutor v Ong Kian Peng
[2024] SGDC 227

Case Number:District Arrest Case No. 909445 of 2024 and 3 others, Magistrate's Appeal No. 9167 of 2024-01
Decision Date:26 September 2024
Tribunal/Court:District Court
Coram: Kelly Ho
Counsel Name(s): DPP Lu Huiyi for the Public Prosecutor; Mohamed Sarhan s/o Mohamed Ikhbar (Public Defender's Office) for the Offender.
Parties: Public Prosecutor — Ong Kian Peng

Criminal Law – Offences – Outrage of Modesty

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9167/2024/01.]

26 September 2024

District Judge Kelly Ho:

1       Having preyed on young children as they were less likely to report him to the Police, Ong Kian Peng (“the Offender”), a 32-year-old male serial molester, pleaded guilty to two counts of aggravated outrage of modesty (“OM”) and one count of criminal force.[note: 1] The victims were nine, 11 and 15 years of age at the time of the offences, which were committed publicly near HDB flats and in a shopping mall. The acts of molest involved the Offender making the victims touch his penis over his pants and the act of criminal force involved the Offender grabbing the victim’s hand and placing it onto his palm. In my view, the sentences sought by the Prosecution and the Defence, which were in the region of 10 to 11 months’ imprisonment with and without caning respectively, were unduly lenient and did not adequately reflect the Offender’s overall criminality. I therefore sentenced him to 15 months’ imprisonment and two strokes of the cane.

Introduction

2       On 14 August 2024, the Offender pleaded guilty to the following three charges:

DAC-909445-2024 (“the 1st Charge”)

You … are charged that you, on the 12th day of December 2023, at or about 5.58 p.m., at the vicinity of Block 283 Bukit Batok East Avenue 3, Singapore 650283, did use criminal force to one [XXX (“V1”)] (a female, 9 years old), intending to outrage her modesty, to wit, by using your hand to grab the arm of the said V1 (a female, 9 years old), and guiding the hand of the said V1 (a female, 9 years old) to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(2) of the Penal Code 1871 (“Penal Code”).

DAC-909446-2024 (“the 2nd Charge”)

You … are charged that you, on the 13th day of May 2024, at or about 6.26 p.m., at the ground floor lift lobby of Block 288C Bukit Batok Street 25, Singapore 652288, did use criminal force to one [XXX (“V2”)] (a male, 11 years old), intending to outrage his modesty, to wit, by using your hand to grab the arm of the said V2 (a male, 11 years old), and guiding the hand of the said V2 (a male, 11 years old) to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(2) of the Penal Code.

MAC-903689-2024 (“the 3rd Charge”)

You … are charged that you, on the 2nd day of February 2024, at or about 5.48 p.m., along the walkway adjacent to Valu$ Shop located at Level 3 of West Mall, 1 Bukit Batok Central Link Singapore 658713, did use criminal force to one [XXX (“V3”)] (a female, 15 years old), to wit, by using your hand to grab the hand of the said V3 (a female, 15 years old), and placing the hand of the said V3 (a female, 15 years old) onto your palm, you have thereby committed an offence punishable under Section 352 of the Penal Code.

3       The Offender also consented to the following charge being taken into consideration for the purposes of sentencing:

MAC-903688-2024 (“the 4th Charge”)

You … are charged that you, on the 20th day of December 2023, at or about 6.20 p.m., at the vicinity of Block 289F Bukit Batok Street 25, Singapore 655289, did use criminal force to one unknown male, intending to outrage his modesty, to wit, by using your hand to grab the arm of the unknown male, and guiding the hand of the said unknown male to touch your penis over your pants, you have thereby committed an offence punishable under Section 354(1) of the Penal Code.

4       The Prosecution’s and the Defence’s respective sentencing positions are set out in the table below:

Charge

Prosecution’s Position

Defence’s Position

The 1st and 2nd Charges

(Aggravated OM)

10.5 to 11 months’ imprisonment and caning per charge (one of the sentences to run consecutively)[note: 2]

10 months’ imprisonment and no caning per charge (one of the sentences to run consecutively)[note: 3]

The 3rd Charge

(Criminal force)

Short custodial sentence (to run consecutively)[note: 4]

One day’s imprisonment (to run consecutively)[note: 5]

Total sentence

At least 10.5 months to 11 months’ imprisonment and caning in addition to a short custodial sentence[note: 6]

10 months’ and one day’s imprisonment[note: 7]



5       I did not agree with the sentences sought by both parties and imposed a global sentence of 15 months’ imprisonment and two strokes of the cane. This was achieved by running the sentences for both the aggravated OM charges consecutively after moderating the imprisonment terms of 10 months for the 1st Charge and nine months for the 2nd Charge down to eight and seven months respectively, on account of the totality principle. The sentence of imprisonment was backdated to the date of arrest, viz, 15 May 2024.

6       The Offender has filed an appeal against sentence and is currently serving his sentence.

Facts

7       The salient parts of the Statement of Facts which the Offender admitted to without qualification were as follows.

Facts pertaining to the 1st Charge – aggravated OM

8       On 12 December 2023, at or about 5.58pm, the Offender had seen V1 (female, nine years old) in the vicinity of Block 283 Bukit Batok East Avenue 3. V1 was walking towards a nail salon where her mother was working. The Offender approached V1, grabbed her arm and asked her where he could find a nail salon. V1 told him that her mother’s salon was next to them. When asked by the Offender where she did her nails, V1 replied that her mother did them.[note: 8]

9       The Offender then guided V1’s hand to touch his penis over his pants. He took a video of this using his handphone. The video showed the Offender grabbing V1’s hand and directing her to touch and tickle his groin area and legs over his pants. V1 was scared and anxious. She pulled her hand away and went to her mother’s salon.[note: 9]

Facts pertaining to the 2nd Charge – aggravated OM

10     On 13 May 2024, at around 6.15pm, while the Offender was on his way home from work, he saw V2 (male, 11 years old) sitting at a playground near Block 288C Bukit Batok Street 25. The Offender approached V2 and asked if he knew where the salon was, where V2 did his nails, and where V2 lived. V2 felt uncomfortable and tried to walk away. When V2 stood up, the Offender grabbed V2’s arm and placed V2’s hand on his right knee, before taking a photograph of V2’s hand with his handphone. The Offender then moved V2’s hand up and down the Offender’s knee over his clothing.[note: 10]

11     V2 broke free and moved towards the ground floor lift lobby of the block. The Offender followed V2 to the lift lobby where he grabbed V2’s hand and guided it to touch his penis over his pants. He took a photograph of V2’s hand touching his penis using his handphone. V2 managed to push the Offender away and ran to the pick-up point where he boarded his Grab car and left.[note: 11]

Facts pertaining to the 3rd Charge – criminal force

12     On 2 February 2024 at around 5.48pm, the Offender was walking around West Mall while waiting for an appointment with his social worker. He saw V3 (female, 15 years old) along the walkway adjacent to the Valu$ shop. The Offender asked V3 if she knew of any nail shop in the mall and she replied that she did not.[note: 12]

13     Thereafter, the Offender grabbed V3’s hand and placed it on his left palm. He then stroked her fingers and used his handphone to take a photograph of her fingernails. V3 pulled her hand away and moved away from the Offender. The Offender followed V3 and asked her to place her hand on his lap but she refused. V3’s mother exited the Valu$ shop and confronted the Offender who then left to meet his social worker.[note: 13]

Prescribed penalties

14     The prescribed punishment for an aggravated OM offence under s 354(2) of the Penal Code was imprisonment for a term which may extend to five years, or with fine, or with caning, or with any combination of such punishments.

15     A person convicted of an offence of criminal force under s 352 of the Penal Code shall be punished with imprisonment for a term which may extend to three months, or with fine which may extend to $1,500, or with both.

Antecedents

16     The Offender was untraced.

Parties’ submissions

Prosecution’s address on sentence

17     The Prosecution sought an overall sentence of “at least 10.5 to 11 months’ imprisonment on top of a short custodial sentence as well as the imposition of caning”.[note: 14]

18     In respect of the aggravated OM charges, the Prosecution referred to the sentencing framework in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”) which was affirmed by the Court of Appeal in BRJ v Public Prosecutor [2020] 1 SLR 849.[note: 15] It highlighted the following offence-specific factors in submitting that the case fell within the lower end of Band 2 of the framework: (i) the Offender had guided the victims’ hands to touch his penis albeit over clothes; (ii) V1 was especially young (nine years old); and (iii) the Offender had photographed or video recorded his offences.[note: 16] For the offender-specific aggravating and mitigating factors, the Prosecution pointed out that the Offender had consented to a charge under s 354(1) of the Penal Code being taken into consideration for the purposes of sentencing, and although the Offender was untraced, he had committed the 2nd Charge whilst under investigation for his earlier offences.[note: 17]

19     Had the Offender claimed trial, the Prosecution would have submitted for 15 months’ imprisonment per charge.[note: 18] As the Offender had pleaded guilty at Stage 1 of the proceedings, it applied a sentencing discount of about 30% to arrive at 10.5 to 11 months’ imprisonment.[note: 19] The Prosecution urged the Court to impose caning but did not submit on the appropriate number of strokes.[note: 20]

20     As regards the criminal force charge, the Prosecution was of the view that a short custodial sentence should be imposed as the Offender had targeted a young and vulnerable victim who was only aged 15.[note: 21]

21     Finally, while it acknowledged that the aggravated OM Charges involved different victims, the Prosecution opined that both sentences should run concurrently to avoid a crushing sentence.[note: 22] The Prosecution’s proposed total sentence of at least 10.5 to 11 months’ imprisonment in addition to a short custodial sentence and caning was derived by running the sentence for the criminal force charge consecutively with one of the other two sentences.[note: 23]

Defence’s mitigation and submissions on sentence

22     The Defence’s global sentencing position, viz, 10 months’ and one day’s imprisonment, was not too far off from the Prosecution’s.[note: 24] It submitted that a reduced sentence without caning was justified on account of the following mitigating factors: (i) the Offender’s remorse, willingness to seek treatment, and full cooperation with authorities; and (ii) his psychiatric conditions, viz, fetishistic disorder with paedophilic interest and a background of mild intellectual disability.[note: 25]

23     While acknowledging that there was no direct contributory link between the Offender’s psychiatric conditions and his commission of the offences, the Defence highlighted paragraph 31(f) of the IMH Report which ostensibly stated that for the purposes of a Mandatory Treatment Order, his conditions did contribute to the commission of the offences.[note: 26] In advocating for mitigating weight to be placed on the Offender’s conditions, the Defence cited Public Prosecutor v ASR [2019] 3 SLR 709 (“ASR (HC)”) and Public Prosecutor v Low Ji Qing [2019] 5 SLR 769 (“Low Ji Qing”).[note: 27]

24     Referencing the IMH Report, the Defence implored the Court to infer that the Offender did not understand the seriousness of his offence until he was in remand.[note: 28] It went further and argued that the Offender’s intellectual disability caused him to “only recently understand that his actions [were] wrong and that he should not have committed such offences” (emphasis added).[note: 29] The Defence subsequently retracted this position during the hearing.[note: 30]

25     In respect of the aggravated OM charges, the Defence was in agreement with the Prosecution that the offences fell within Band 2 of the GBR framework.[note: 31] However, it pushed for a lower sentence of 10 months’ imprisonment on account of the Offender’s intellectual disability.[note: 32]

26     For the criminal force charge, the Defence cited Public Prosecutor v Bander Yahya A Alzahrani [2017] SGDC 51 (“Bander Yahya”) where the offender was sentenced to one week’s imprisonment for a charge under s 352 of the Penal Code.[note: 33] In seeking one day’s imprisonment, the Defence pointed out the distinguishing and mitigating factors in the present case.[note: 34]

27     The Defence also contended that caning was inappropriate due to the Offender’s intellectual disability.[note: 35] It quoted passages from Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2nd Ed, 2019) (“Sentencing Principles”) and referred to several cases which will be discussed further at [52] below.[note: 36]

28     The Defence was aligned with the Prosecution that the sentences for the aggravated OM charges ought to run concurrently.[note: 37]

Decision on sentence

29     I broadly agreed with the parties’ proposed individual sentences for the three charges; where we diverged was in relation to which sentences should run consecutively. They took the view that the sentences for one of the aggravated OM charges and the criminal force charge should run consecutively. I disagreed and ran the sentences for both the aggravated OM charges, reduced to eight and seven months respectively owing to the totality principle, consecutively.

30     In my opinion, running the sentences as proposed by the Prosecution and the Defence would result in an inadequate sentence that would fall far short of reflecting the gravity of the offences and the Offender’s culpability. As regards caning, I concurred with the Prosecution that it was warranted and imposed one stroke per charge. The eventual sentence was therefore 15 months’ imprisonment and two strokes of the cane.

The relevance of the Offender’s psychiatric conditions

31     This was the main area of disagreement between parties. The Defence’s position was that some mitigating weight should be assigned to the Offender’s psychiatric conditions notwithstanding the lack of a direct contributory link, and a lower custodial term without caning should be imposed.[note: 38] In contrast, the Prosecution maintained that the Offender’s conditions were not mitigating as there was no direct contributory link and his judgment and self-control were not impaired.[note: 39]

32     At the outset, I should deal with a seemingly contradictory statement in the IMH Report which the Defence had relied on.[note: 40] The entire sub-paragraph, paragraph 31(f), is reproduced below for ease of reference:[note: 41]

He is assessed to be suitable for Mandatory Treatment Order (MTO). Compared to adult persons without fetishistic disorder, he has a higher risk of committing the offence compared to others. From this point of view, there is a contributory link to his offence.

[emphasis added]

33     At first glance, the italicised words above appeared to be inconsistent with an earlier sub-paragraph of the report, viz, paragraph 31(c) which stated:[note: 42]

There is no direct contributory link of his psychiatric conditions to his alleged offence as they did not impair his judgement, nor did they impair his self-control.

[emphasis added]

34     However, upon further review, it was clear that there was no inconsistency as the purport of paragraph 31(f) was simply that the Offender had a higher tendency of committing the offence compared to adults without a fetishistic disorder. Paragraph 31(c) of the IMH Report made it amply clear that the Offender’s fetishistic disorder (or his mild intellectual disability which the Defence had placed more reliance on) did not have a direct contributory link to his offences or impair his judgment or self-control which was the key consideration when determining whether mitigatory weight should be given.

35     As Sundaresh Menon CJ pronounced (at [61]) in the recent case of Public Prosecutor v Soo Cheow Wee and anor appeal [2024] 3 SLR 972 (“Soo Cheow Wee”), the presence of psychiatric conditions per se will not constitute a mitigating factor. The court is required to assess the causal link between the conditions and the commission of the offence. In particular, the “conditions must have had some impact on the offender’s mental responsibility” in one of the following ways (at [61]):

(a)     the offender did not possess the “basic cognitive ability” to perceive his acts and know their nature;

(b)     the offender did not possess the “moral and legal cognition” to know and appreciate whether the act was wrong, in the sense of it being contrary to law; or

(c)     the offender was unable to “exercise his will to control his actions”.

36     Paragraph 31(c) of the IMH Report stated unequivocally that there was “no direct contributory link” between the Offender’s conditions and commission of the offences, and his conditions did not impair his judgment or self-control. It was also apparent from the following paragraphs of the report that the Offender was well aware that his actions were wrong:[note: 43]

21.    Regarding the charge on 20 Dec 2023 [the 4th Charge]… He knew that what he did was not a right thing to do.

22.    Regarding the charge on 2 Feb 2024 [the 3rd Charge] … While he knew that it was wrong to hold her hand without her consent, he still did it because nobody was around her. He did not dare put her hand on his groin because he felt that the shopping mall was a crowded place. …

24.    … He explained that all his victims have been children so far because a child may not know what is going on, and “they won't make police report”. He did admit that “actually I also like adult hands”, but he recognised that an adult person “can straightaway bring me to the police station”. There had been times where he would unzip his pants and place the victim's hand on his underwear over his groin region, but this was only done if he was out of public sight, so that he would not get caught. He also admitted that he has been committing multiple similar offences since early 2023, but he did not get caught for it. Even though he recalled being arrested by the police once in Feb 2023, he continued to commit similar offence because he thought the offence was not very serious and that he may not get caught again …

[emphasis added]

37     Where the offender’s condition does not affect the commission of the offence, ie, there is no causal link between the condition and the commission of the offence, “the usual sentencing parameters and principles would apply” (Soo Cheow Wee at [62]). Hence, the Offender’s conditions should not be viewed as mitigating.

38     For completeness, I now address the cases and arguments advanced by the Defence. I first turn to the cases it cited to support its submission that mitigatory weight should be afforded to the Offender’s conditions. The first case was ASR (HC) which held (at [108]) that rehabilitation was particularly important when dealing with mentally disordered offenders.[note: 44] However, the Court of Appeal (“CA”) decision, Public Prosecutor v ASR [2019] 1 SLR 941 (“ASR (CA)”), which was more pertinent, affirmed the need for a causative link between the Offender’s condition and the offence. In this regard, the CA held (at [107]) that “the existence of a causal link between the respondent’s intellectual disability and his offending acts represented a specific means by which his intellectual disability reduced his culpability, namely, by affecting his control over his offending impulses” (emphasis added).

39     The next case of Low Ji Qing also did not aid the Defence. In that case, the offender’s disorder had “impaired his ability to control his desire to act on his fetishism” (emphasis in original) (at [53]).[note: 45] Additionally, the offender’s condition had also “affected his judgment predisposing him to stealing” (emphasis in original) (at [52]). Unlike the offender in Low, the Offender’s conditions neither impaired his judgment nor his self-control.[note: 46]

40     On the issue of whether the Offender possessed the moral and legal cognition to know and appreciate that his acts were wrong and contrary to the law, the Defence highlighted paragraphs 27 and 31(e) of the IMH Report (reproduced below):[note: 47]

27.    He expressed remorse of his actions and fear of the upcoming consequences. He shared that he realised this time how serious his offence was from this remand admission. He requested to get help in controlling his behaviour. He said that he would not dare to do it again because he “don't want go jail, don't want caning”. At multiple times during the interview sessions, he kept pleading for a lighter sentence.

31.e) He is at moderate risk of reoffending in terms of repeating the same act. This is seen from the fact that he has repeated his offence multiple times, and continued to do so even after the police arrested him once in Feb 2023. This is balanced with the fact that he now appears to recognise the seriousness of his offence and is remorseful of his actions.

[emphasis in original in bold; emphasis added in italics]

41     Paragraphs 27 and 31(e) of the IMH Report merely suggested that the Offender did not realise the severity of the potential punishment for the offences until he was in remand, and not that he was unaware that his acts were wrong or illegal which was the crux of the matter (see paragraph 35(b) above). As explained at [36] above, the Offender was plainly cognisant of the wrongfulness of his actions.

42     Given that the Offender’s mental conditions did not affect his mental responsibility and he was fully aware of the illegality of his actions, I declined to place any mitigating weight on them.

Sentences for the 1st and 2nd Charges – aggravated OM

43     The consensus between parties was that the GBR framework should apply in respect of the aggravated OM charges. There are three main steps in the GBR framework:

(a)     The court should first consider the offence-specific factors which can be broadly categorised as such: (i) degree of sexual exploitation; (ii) circumstances of the offence; and (iii) harm caused to the victim.[note: 48]

(b)     The court should then situate the offence within one of the following sentencing bands:[note: 49]

(i)       Band 1 (at most one aggravating factor): less than one year’s imprisonment;

(ii)       Band 2 (two or more aggravating factors): one to three years’ imprisonment; and

(iii)       Band 3 (most serious instances): three to five years’ imprisonment.

(c)     Finally, the court should take into account the offender-specific aggravating and mitigating factors.

44     The following offence-specific aggravating factors raised by the Prosecution were present:[note: 50]

(a)     The Offender caused the victims to come into contact with his private part (penis), albeit that there was no direct contact.

(b)     V1’s age, viz, nine years old, was significantly lower than the threshold of 14 years (the 1st Charge).

(c)     The Offender had recorded his offending conduct by taking a video (the 1st Charge) and a photograph (the 2nd Charge) of his actions.

45     The Defence did not specifically address the Court on the above factors but accepted that the aggravated OM charges fell within Band 2. For Band 2, apart from an imprisonment term of between one and three years, “[c]aning will nearly always be imposed, and the suggested starting point would be at least three strokes of the cane” (GBR at [33]).[note: 51] As there was no skin-to-skin contact with the victims’ private parts (or that of the Offender’s), I accepted the Prosecution’s submission that the indicative sentence should be at the lower end of Band 2, viz, around one year’s or 12 months’ imprisonment.[note: 52] The indicative sentence for the 1st Charge should be slightly higher than that for the 2nd Charge given the factor at paragraph 44(b) above.

46     At the final step, I took into consideration the following offender-specific aggravating and mitigating factors raised by parties:[note: 53]

(a)     The Offender had consented to the 4thCharge (s 354(1) of the Penal Code) being taken into consideration.

(b)     The offence in the 2nd Charge was committed whilst the Offender was being investigated for his earlier offences, demonstrating his recalcitrance.

(c)     The Offender’s early plea of guilt which warranted a 30% reduction in sentence.

(d)     His lack of antecedents.

47     Bearing the above factors in mind, had the Offender claimed trial, I would have sentenced him to 14 months’ imprisonment for the 1st Charge and 13 months’ imprisonment for the 2nd Charge. Since he had pleaded guilty expeditiously, the appropriate sentence would have been 10 and nine months’ imprisonment for the 1st Charge and 2nd Charge, respectively.

48     Turning to the issue of caning, the recommended starting point for a Band 2 case is at least three strokes of the cane. I was of the view that caning was justified “as an additional deterrent” ([31] of GBR) given the facts and circumstances of the case canvassed above and imposed one stroke of the cane per charge. The Defence’s main argument against the imposition of caning appeared to be the Offender’s intellectual disability.[note: 54]

49     In support of its position, the Defence quoted the following passage from Sentencing Principles at para 29.037:

There may be a less compelling need to impose caning for the purpose of retribution or deterrence if the offender is mentally disordered at the time of the offence or is intellectually disabled. This is particularly so if there is a causal link between the offence and the offender’s mental condition.

[emphasis added]

50     It bore noting that the author merely suggested that there may be less need to impose caning where the offender is intellectually disabled; he did not actually assert that caning should not be imposed whenever an offender is intellectually disabled. Further, he had emphasised the significance of a causal link between the offender’s condition and his offence.

51     In this case, there was a strong impetus to impose caning for the aggravated OM charges given the nature and circumstances of the offences and the absence of a direct contributory link, let alone a causal link, between the offences and the Offender’s conditions.

52     The two cases mentioned in the Defence’s Plea-in-Mitigation were of no assistance to the Offender. For Public Prosecutor v Kok Weng Shang Bernard [2005] SGHC 64, the Defence quoted the following sentence from the judgment (at [28]), “[c]aning is not imposed in such cases as the accused persons would have been suffering from such abnormality of mind as would have substantially impaired their mental responsibility for their acts” (emphasis added).[note: 55] However, the Offender was not suffering from an abnormality of mind that substantially impaired his mental responsibility for his actions.

53     The offender in Public Prosecutor v Hwang Yew Kong [2006] SGHC 22 suffered from residual schizophrenia with residual hallucination and delusion, and there was some impairment of his self-control as he “was unable to ignore the hallucination and felt compelled to obey the voices telling him to stab his father” (at [11]).[note: 56] The second case was clearly distinguishable from the case at hand.

54     For completeness, I noted that the issue of whether an intellectually disabled offender should be caned was discussed in ASR (CA). The CA held (at [136]) that caning was precluded as it was generally imposed for its deterrent effect which was not applicable to the offender. This was because the offender was “not cognitively normal, and did not fully understand the gravity of his offending conduct” (ASR (CA) at [115]). Menon CJ explained (at [115]) that the offender’s intellectual disability attenuated the importance of general and specific deterrence considerably as there was a causal link between his intellectual disability and the offence, and his ability to fully appreciate the nature and quality of his actions was compromised.

55     The offender in ASR was considered to have a mental age of eight to 10 at the time of his offences and an “extremely low range of intelligence” (emphasis added), and his intellectual disability had impaired his impulse-control (ASR (CA) at [49], [67] and [68]). In contrast, the Offender’s intellectual disability was mild and did not impair his judgment or self-control.[note: 57] It also had no effect on his capacity to understand the nature of his acts (as explained in [35] to [42] above).

56     In light of the above, I rejected the Defence’s submission that the Offender should not be caned on account of his intellectual disability.

Sentence for the 3rd Charge – criminal force

57     Parties accepted that the custodial threshold was crossed.[note: 58] The Prosecution emphasised that the Offender had picked on a young and vulnerable 15-year-old victim in submitting for a short custodial sentence.[note: 59] To support its submission for one day’s imprisonment, the Defence referred to Bander Yahya where the offender was sentenced after trial to one week’s imprisonment for an offence under s 352 of the Penal Code.[note: 60] They reasoned that the Offender’s acts were not as egregious as those in Bander Yahya, he had pleaded guilty at the earliest opportunity, and he had suffered from an intellectual disability.[note: 61]

58     I took into account the aggravating and mitigating factors raised by parties save for the Offender’s intellectual disability. Considering all the factors and circumstances of the offence, I was of the view that three days’ imprisonment would be appropriate.

The appropriate global sentence

59     Having determined the individual sentences, I proceeded to consider what the aggregate sentence should be. Both parties’ submissions on this issue were brief.[note: 62] Despite recognising that the aggravated OM charges involved different victims, the Prosecution sought concurrent sentences “to prevent the total sentence from being crushing upon the accused”.[note: 63] The Defence simply agreed with the Prosecution’s position.[note: 64]

60     It is trite that sentencing is strictly within the court’s purview. The court is not obliged to sentence an offender in accordance with parties’ agreement, especially where scant reason was provided for the shared position. For example, in Public Prosecutor v Wong Tian Jun De Beers [2021] SGDC 75, the court at first instance ran five sentences consecutively despite parties’ common stance that only three sentences ought to run consecutively. The sentence imposed, viz, 42 months’ imprisonment and a fine of $20,000 (in default one month’s imprisonment) was substantially higher than the Prosecution’s and the Defence’s positions of at least 30 and no more than 24 months’ imprisonment respectively. On appeal, Menon CJ enhanced the custodial sentence to eight years and five months’ imprisonment (Wong Tian Jun De Beers v Public Prosecutor [2021] SGHC 273).

61     Pursuant to s 307(1) of the Criminal Procedure Code 2010, at least two sentences have to run consecutively as the Offender was sentenced to imprisonment for three distinct offences. In deciding which sentences to run consecutively, I considered whether the offences were unrelated. The general rule is that consecutive sentences should be imposed for unrelated offences (Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 (“Raveen”) at [41]). One of the key reasons for this rule was articulated by Menon CJ (at [46]) as follows:

Fourthly, and perhaps most intuitively, allowing a multiple offender to be punished less seriously, or even not at all, for a second or further offending would be a perverse outcome that flies in the face of any notion of justice. … public confidence in the administration of criminal justice requires the court to avoid any suggestion or impression that a multiple offender may benefit from some sort of bulk discount in sentencing. …

[emphasis added]

62     The three offences in the present case were without doubt unrelated as they were committed on separate occasions at distinct locations and involved different victims. They thus did not “form part of a single transaction” or involve a “single invasion of the same legally protected interest” (Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 at [39]). The starting point was thus that all three sentences should run consecutively.

63     I next applied the totality principle and took one “last look” at the entire case to satisfy myself that the cumulative sentence was “sufficient and proximate to the offender’s overall criminality” (Raveen at [73]). There are two limbs to this principle – the combined sentence must not be: (i) “substantially above the normal level of sentences for the most serious of the individual offences committed” or (ii) “crushing and not in keeping with [the offender’s] past record and future prospects” (Raveen at [73]). The sentencing judge may either reconsider the sentences to be run consecutively or calibrate the individual sentences if the collective sentence is too high (Raveen at [73]).

64     Running all three imprisonment terms consecutively would result in 19 months and three days’ imprisonment, which would be excessive. On the other hand, running only the sentences for one of the aggravated OM charges and the criminal force charge consecutively would lead to an inadequate sentence of only 10 months’ and three days’ imprisonment. This would be, in the words of Tay Yong Kwang J (as he then was) in Public Prosecutor v AUB [2015] SGHC 166 (“AUB”) at [25], “[giving] an unwarranted discount to the accused for multiple assaults”.

65     In that case, the offender pleaded guilty to two charges for the offences of sexual assault by penetration under s 376(2)(a) of the Penal Code (Cap 224, 2008 Rev Ed) and obscene act under s 7(a) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed), and consented to another charge of obscene act being taken into consideration. Although the offences involved the same location, same victim and an unwelcome invasion of the victim’s bodily integrity, and there were only two proceeded charges, consecutive sentences were imposed (AUB at [25]).

66     It was my considered view that the sentences for the two aggravated OM charges should be moderated downwards by two months per charge to eight and seven months’ imprisonment and made to run consecutively. The resulting sentence of 15 months’ imprisonment and two strokes of the cane was proportionate to the severity of the offences and the Offender’s general blameworthiness.

67     This sentence was not substantially above the normal level of sentences for an aggravated OM offence since the starting point for such an offence was 12 months’ imprisonment (see [45] above). It also did not offend the second limb of the totality principle. A sentence of 15 months’ imprisonment can hardly be said to be “an extremely long total sentence” that “will induce a feeling of hopelessness and destroy any expectation of a useful life after release” (Raveen at [75]).

Conclusion

68     The presence of a psychiatric condition does not automatically result in a reduction in sentence or the non-imposition of caning. Where the condition does not affect the offender’s mental responsibility as in this case, it should not be regarded as mitigating or displace the principle of deterrence. Ultimately, I did not find the sentences sought by the Prosecution and the Defence to be commensurate with the Offender’s overall criminality; I therefore imposed an aggregate sentence of 15 months’ imprisonment and two strokes of the cane.

[note: 1]Institute of Mental Health report dated 27 May 2024 (“IMH Report”) at para 24.

[note: 2]Prosecution’s Skeletal Submissions on Sentence (“PS”) at paras 6 and 8.

[note: 3]Defence’s Plea-in-Mitigation (“DS”) at para 3.

[note: 4]PS at paras 8 and 9.

[note: 5]Ibid.

[note: 6]PS at para 1.

[note: 7]Ibid.

[note: 8]Statement of Facts (“SOF”) at para 11.

[note: 9]SOF at para 12.

[note: 10]SOF at paras 14 and 15.

[note: 11]SOF at paras 16 and 17.

[note: 12]SOF at paras 2 and 3.

[note: 13]SOF at para 4 to 6.

[note: 14]PS at para 1.

[note: 15]PS at para 2.

[note: 16]PS at paras 3 and 4

[note: 17]PS at para 5.

[note: 18]PS at para 6.

[note: 19]Ibid.

[note: 20]PS at para 7.

[note: 21]PS at para 9.

[note: 22]PS at para 8.

[note: 23]PS at para 10.

[note: 24]DS at para 3.

[note: 25]DS at para 6.

[note: 26]DS at para 9.

[note: 27]DS at paras 11 and 12.

[note: 28]DS at para 14.

[note: 29]DS at para 15.

[note: 30]Notes of Evidence (“NE”), 14 August 2024, p 13, lines 10 to 14.

[note: 31]DS at para 19.

[note: 32]DS at paras 20 and 21.

[note: 33]DS at para 22.

[note: 34]DS at paras 23 and 24.

[note: 35]DS at para 25.

[note: 36]DS at paras 26 to 29.

[note: 37]DS at paras 31 and 32.

[note: 38]DS at paras 6(c), 9 and 10.

[note: 39]NE, 14 August 2024, p 11, lines 5 to 7.

[note: 40]DS at para 9.

[note: 41]IMH Report at para 31(f).

[note: 42]IMH Report at para 31(c).

[note: 43]IMH report at paras 21, 22 and 24.

[note: 44]DS at para 11.

[note: 45]DS at para 12.

[note: 46]IMH Report at para 31(c).

[note: 47]DS at para 14.

[note: 48]GBR at paras 27 to 30.

[note: 49]GBR at para 31.

[note: 50]PS at para 3.

[note: 51]PS at para 4 and DS at para 19.

[note: 52]PS at para 4.

[note: 53]PS at para 5 and DS at paras 7 to 17.

[note: 54]DS at paras 6(c), and 25 to 30.

[note: 55]DS at para 29.

[note: 56]DS at para 29.

[note: 57]IMH Report at para 31(a) and (c).

[note: 58]PS at para 9 and DS at para 24.

[note: 59]PS at para 9.

[note: 60]DS at para 22.

[note: 61]DS at para 23.

[note: 62]PS at para 8 and DS at paras 31 and 32.

[note: 63]PS at para 8.

[note: 64]DS at para 31.

"},{"tags":["Damages – Assessment","Contract – Contractual terms – Rules of construction – Consent judgment"],"date":"2024-09-23","court":"District Court","case-number":"District Court Suit No 1633 of 2018, Assessment of Damages No 173 of 2021","title":"Chew Hock Seng v Ng Teck Siong and another","citation":"[2024] SGDC 250","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32211-SSP.xml","counsel":["Ms. Lisa Sam (M/S Lisa Sam & Company) for the plaintiff","Mr. Wang Liansheng and Ms. Valerie Goh (M/s Bih Li & Lee LLP) for the first defendant"],"timestamp":"2024-10-01T16:00:00Z[GMT]","coram":"Teo Wei Ling","html":"Chew Hock Seng v Ng Teck Siong and another

Chew Hock Seng v Ng Teck Siong and another
[2024] SGDC 250

Case Number:District Court Suit No 1633 of 2018, Assessment of Damages No 173 of 2021
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Teo Wei Ling
Counsel Name(s): Ms. Lisa Sam (M/S Lisa Sam & Company) for the plaintiff; Mr. Wang Liansheng and Ms. Valerie Goh (M/s Bih Li & Lee LLP) for the first defendant
Parties: Chew Hock Seng — Ng Teck Siong — Sun Yiam Gwek — DTG & Co. Pte Ltd

Damages – Assessment

Contract  –  Contractual terms  –  Rules of construction  –  Consent judgment

23 September 2024

Judgment reserved.

Deputy Registrar Teo Wei Ling:

Introduction

1       The plaintiff is the owner of the property at 7 Siglap Avenue South (“House 7”). The first and second defendants are the owners of the property at 5 Siglap Avenue South (“House 5”). As the present assessment of damages proceeded only against the first and second defendants, I will refer to the first and second defendants collectively as “the defendants”.

2       In or around January 2015, the defendants decided to demolish and reconstruct House 5. Sometime in May 2015, the plaintiff noticed that House 7 had sustained damage, in particular, water seepage damage and cracks in the walls and ceilings.

3       Between August 2015 and August 2016, the plaintiff and the first defendant exchanged various emails and messages relating to the water seepage issues in House 7 noted by the plaintiff, and discussed remedial works to be done by the first defendant to rectify the issues. However, the plaintiff was not satisfied with the remedial works and claimed that the water seepage issues persisted.

4       Thereafter, the plaintiff engaged various parties to carry out surveys on the building condition of House 7, to identify defects and damage allegedly caused by the reconstruction works at House 5:

(a)     On 21 March 2017, Chesterfield Building Surveyors Pte Ltd carried out a survey on the building condition of House 7, and issued a report on 27 March 2017 (“the Chesterfield Report”);

(b)     Subsequently, the plaintiff engaged Mr. Chin Cheong of M/s Building Appraisal Pte Ltd (“BA”) to carry out a survey and inspection on property damage to House 7 and prepare a report on his observations and findings;

(c)     Mr. Chin Cheong carried out a first inspection on 13 November 2017, and a re-inspection on 27 December 2017, and issued his first report dated December 2017 (“BA’s First Report”) [note: 1];

(d)     On 19 February 2019, Mr. Chin Cheong carried out a further inspection and issued a supplementary report dated March 2019 (“BA’s Second Report”) [note: 2]; and

(e)     On 13 January 2020, Mr. Chin Cheong carried out a further inspection and issued a further supplementary report dated January 2020 (“BA’s Third Report”) [note: 3].

5       The plaintiff also obtained quotations in respect of rectification works for House 7. Of relevance to this assessment is the quotation obtained from Richfield Integrated Pte Ltd (“Richfield”) dated 24 September 2020[note: 4] (“Richfield Quotation”) for “rectification works required at the plaintiff’s property”[note: 5].

6       The Richfield Quotation contained quotations for various “renovation and/or repair works”, [note: 6] sorted into four different categories:

(a)     “A - Exterior”: works at the gate pillar, entrance metal gate, car porch, back yard, balcony, and roof;

(b)     “B - Interior”: works at the living room, kitchen, staircase, master bedroom, master bathroom, and third storey bathroom;

(c)     “C - Miscellaneous items”: painting works, scaffolding works as well as costs for labour, tools and materials; and

(d)     “D - Preliminaries”: general cleaning costs and costs for necessary permits and licences.

7       Each category contained an itemised list of proposed rectification works with a short description of the works to be done. Notably, the Richfield Quotation did not contain any references to any of BA’s Reports.

8       In the meantime, the plaintiff commenced the present action on or about 7 June 2018. His case is that the demolition and reconstruction works by the defendants caused damage to House 7, and the defendants are therefore liable in tort for negligence.

9       After seven days of trial, parties entered into a consent interlocutory judgment on 26 June 2020[note: 7] with damages to be assessed (“Consent Judgment”). Thereafter, the matter proceeded to assessment before me.

10     Some interesting issues for determination arose in the assessment. Notwithstanding the Consent Judgment, parties were in dispute as to the scope and extent of defects the Court could consider in assessing the appropriate damages to be awarded. The defendants claim that they should not have to pay rectification costs for all the defects and damage claimed by the plaintiff, but only for damage that was caused by the defendants’ reconstruction works. In essence, the defendants take the position that causation remains a live issue at the assessment stage. On the other hand, the plaintiff claims that insofar as there is a judgment on liability, causation cannot be challenged at the assessment stage now.

11     When there is a consent judgment on liability for damages to be assessed, does the court still have to determine causation before assessing and awarding damages? Should a consent judgment be interpreted like a contract and do the established principles of contractual interpretation therefore apply? What should the court consider when determining the scope of damages for assessment? These issues will be examined in the course of this judgment.

12     Having considered the matter carefully, I assess damages at $99,304.00 and set out below the reasons for my decision. A full breakdown of the damages assessed is set out at Annex 1.

The parties’ submissions

13     The joint opening statement set out a full itemised list of rectification works taken from the Richfield Quotation, as well as the plaintiff’s and defendants’ submissions in respect of each proposed rectification work item. The structure of cross-examination in the assessment hearing also appeared to be largely based on the list of proposed rectification works in the Richfield Quotation.

14     In his closing submissions at assessment, the plaintiff quantified his damage and losses at $214,905.80[note: 8], comprising costs for rectification works (as quoted in the Richfield Quotation) plus costs previously incurred by the plaintiff for interim or temporary rectification works.

15     In their closing submissions at assessment, the defendants took the position that the plaintiff is only entitled to $4,380 in damages, for instances where the plaintiff can prove that the alleged damage suffered was caused by the defendants’ reconstruction works. In this regard, the defendants’ main arguments were:

(a)     The alleged damage suffered by the plaintiff either did not exist or was not suffered by the plaintiff;

(b)     The plaintiff failed to establish factual causation, and the alleged damage suffered by the plaintiff was not caused by the reconstruction works; and

(c)     The quantum and scope of repairs claimed by the plaintiff were excessive and/or unreasonable.

16     In response, the plaintiff argued in closing submissions that the defendants’ expert had put up his opinion in contravention of “the ultimate issue rule”, and that the court should treat such evidence with “no weight”.[note: 9]

The Consent Judgment

17     Given that the present matter proceeded to assessment after parties had entered into the Consent Judgment, I was surprised that both parties chose to present their arguments and submissions based on the Richfield Quotation, rather than the Consent Judgment.

18     In my view, the starting point for assessment must be the Consent Judgment entered into on 26 June 2020. I set out in full the terms of the Consent Judgment:

IT IS HEREBY BY CONSENT ADJUDGED that:

1.     Judgment for the Plaintiff against the 1st and 2nd Defendants on matters set out in the 3 reports of Mr. Chin Cheong of Building Appraisal Pte Ltd dated December 2017, March 2019 and January 2020.

2.    Costs and disbursements, payable by the 1st and 2nd Defendants to the Plaintiff, are to be agreed or taxed.

3.     Damages, interest and costs of the Assessment of Damages hearing, payable by the 1st and 2nd Defendants to the Plaintiff, are to be assessed by the Registrar on the scope and quantum of rectification works required at No. 7 Siglap Avenue South Singapore 456267.

4.    The 1st and 2nd Defendants shall grant reasonable access, to the Plaintiff, his servants or agents, to No. 5 Siglap Avenue South Singapore 456265 to undertake such rectifications works ordered by the Registrar.

5.    Costs and disbursements, payable by the 1st and 2nd Defendants to the 3rd Defendant, whether on a standard or indemnity basis, are to be determined by the Court and for such quantum to be thereafter to be agreed or taxed.

[emphasis added in bold and underline]

19     What divides parties is how paragraph 3 of the Consent Judgment should be interpreted. Specifically, parties disagree whether an assessment “on the scope and quantum of rectification works required” means that the defendants can argue that they are only liable for some and not all of the rectification works for defects and damages claimed by the plaintiff.

Issues

20     As such, the issues before me in assessment are as follows:

(a)     Whether the defendants can challenge causation at the assessment stage;

(b)     What is the scope of damages to be assessed; and

(c)     What is the quantum of damages due to the plaintiff.

Can the defendants challenge causation at the assessment stage?

21     To ascertain what has been agreed between parties, I first examine the scope of the Consent Judgment.

Contractual Interpretation

22     The principles of contractual interpretation apply equally to the interpretation of consent judgments (Seiko Epson Corp v Sepoms Technology Pte Ltd [2008] 1 SLR(R) 269 (“Seiko”) at [26]).

23     The relevant principles were succinctly summarised by the High Court in Foreland Singapore Pte Ltd and anor v IG Asia Pte Ltd [2024] SGHC 179 at [88]:

88    The principles of contractual interpretation are well established under Singapore law. As the Court of Appeal stated in the seminal case of CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Ltd) v Ong Puay Koon and others and another appeal [2018] 1 SLR 170 (“CIFG”) (at [19]):

(a)    The starting point is that one looks to the text that the parties have used (see Lucky Realty Co Pte Ltd v HSBC Trustee (Singapore) Ltd [2016] 1 SLR 1069 at [2]).

(b)    At the same time, it is permissible to have regard to the relevant context as long as the relevant contextual points are clear, obvious and known to both parties (see Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 at [125], [128] and [129]).

(c)    The reason the court has regard to the relevant context is that it places the court in “the best possible position to ascertain the parties’ objective intentions by interpreting the expressions used by [them] in their proper context” (see Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 at [72]).

(d)    In general, the meaning ascribed to the terms of the contract must be one which the expressions used by the parties can reasonably bear (see, eg, Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [31]).

24     The High Court in HSBC Institutional Trust Services (Singapore) Ltd (as trustee of AIMS AMP Capital Industrial REIT) v DNKH Logistics Pte Ltd [2022] SGHC 248 (“HSBC”) also stated at [26]:

26    The principles to be applied in the interpretation of contracts are well established by several salient decisions of the Court of Appeal …

I shall summarise the applicable principles from the above cases on the interpretation of clauses in a contract:

…

(e)    Should an interpretation of the clause based on its plain wording lead to an absurd result, this is a strong indication that the text may be inconsistent with the context in which it is interpreted. In this regard, the Court should ordinarily start from the position that the parties did not intend that the term(s) concerned would produce an absurd result. It must be stressed that the context cannot be utilised as an excuse for the Court to rewrite the terms of the contract according to its subjective view of what it thinks the result ought to be. The need to avoid an absurd result cannot be pursued at all costs. Rather, the Court must always base its decision on objective evidence. Therefore, if the objective evidence demonstrates that the parties had contemplated the absurd result or consequence, the Court is not free to disregard this in favour of what may seem to the Court to be a more commercially sensible interpretation of the contract. In such a situation, although one that would no doubt be extremely rare, the Court must give effect to the meaning contained therein, notwithstanding that an absurd result would ensue: YES F&B at [32] and [33]

25     Following the approach of the Court of Appeal in Seiko, the first question in the present case is whether the Consent Judgment was final on the issue of liability, or whether, on an objective interpretation of the Consent Judgment, the issue was left to be determined at the present assessment hearing.

26     The plaintiff’s only submission on this issue was that the defendants had entered into the Consent Judgment, and that “[b]y admitting liability on the matters stated therein, it is not open for the 1st and 2nd Defendants to deny or attempt to challenge their liability for the defects found and observed in each of the three reports of Chin Cheong. They are disputing the terms of the Interlocutory Judgment. It is not open for them to do so now.” [note: 10]

27     On the other hand, the defendants submitted that the burden of proof lies on the plaintiff to show that the defendants’ breach was the effective cause of the plaintiff’s loss. [note: 11] The defendants further submitted that the assessment stage is for “damages to be assessed as regards the scope and quantum of rectification works required at the Plaintiff’s Premises” and therefore “there must be care and consideration given as to whether the claims made by the Plaintiff… would be allowed having regard to the agreement by parties that the failure to comply fully with the demolition plan as submitted and as approved by the Building and Construction Authority was the main cause of the water seepage” (emphasis in underline in original).[note: 12]

28     I have some difficulties with the defendants’ submissions.

(a)     Crucially, the Consent Judgment does not contain any express reservation of causation to the assessment stage.

(b)     The Consent Judgment makes no reference to the alleged “agreement by parties” as to the main cause of water seepage, or how that leaves the issue of liability open.

(c)     Further, the order that damages are to be assessed “on the scope and quantum of rectification works required” is not inconsistent with the position that liability has been fully determined. This simply means the scope of damages for assessment has been finalised, and the issue at assessment is for the court to determine what would be the reasonable or appropriate rectification works for the said damages and the costs thereof. For example, there may be alternative methods or differing extents of rectification works in respect of a defect or damage.

29     In my view, an objective construction of the Consent Judgment indicates that it is final on the issue of liability, with the specific issue of the scope and costs of rectification works to be determined in assessment. There is nothing in the factual matrix surrounding the Consent Judgment to justify any inference that the plaintiff had agreed to reserve the issue of causation to the assessment stage.

30     As the Court of Appeal observed in Crapper Ian Anthony v Salmizan bin Abdullah [2024] SGCA 21 (“Salmizan (CA)”) at [48], it is for parties to agree on what has been resolved with res judicata effect and what has not. The Court of Appeal further stated in Salmizan (CA) at [50]:

… However, where parties have agreed to enter into a consent interlocutory judgment, what has been decided would be an interlocutory judgment on the matters that the parties had agreed to, regardless of whether the interlocutory judgment entirely established liability. There can be no confusion as to what the interlocutory judgment was entered in respect of; any doubt would be a consequence of the conduct of the parties’ counsel in drafting the consent interlocutory judgment and not because of the legal effect of the consent interlocutory judgment.

31     For these reasons, I find that the defendants are not entitled to challenge causation at the assessment stage in the present case.

Scope of damages to be assessed

32     What then is the scope of damages captured by the Consent Judgment for which the defendants are liable, and which are to be assessed?

33     In the course of the assessment hearing as well as in closing submissions, counsel spent a considerable amount of time to identify whether the reconstruction works at House 5 were the actual cause of the defects and damage found in House 7, arguing that the defendants are liable insofar as the reconstruction works had caused the defects and damage suffered by House 7. This is misconceived.

34     As stated above, one must look at the Consent Judgment to ascertain the scope of parties’ agreement. Having said that, the question of the proper interpretation of the Consent Judgment in the present case involved some intricacy.

35     Paragraph 1 of the Consent Interlocutory Judgment (“Para 1”) states:

1.     Judgment for the Plaintiff against the 1st and 2nd Defendants on matters set out in the 3 reports of Mr. Chin Cheong of Building Appraisal Pte Ltd dated December 2017, March 2019 and January 2020.

[emphasis added in bold and underline]

36     The plain and ordinary meaning of Para 1 suggests that all matters stated in the three BA Reports should be assessed, regardless of whether they relate to a defect in House 7 or not. That would be an absurd result and cannot be the case. Insofar as the BA Reports include descriptions and photographs of the “General view” [note: 13] at various locations in House 7, such observations and remarks clearly should not be included in the scope of items for assessment.

37     This is supported by the plaintiff’s own interpretation of Para 1 to mean that the plaintiff is entitled to damages to rectify all “defects found and observed in each of the three reports of Chin Cheong”.[note: 14] However, this interpretation is still vague and does not clearly identify the “defects” in each of the three BA Reports.

38     Applying the law on the interpretation of contracts which requires the assessment of both text and context, I am satisfied that the sensible way of interpreting Para 1 is to review what defects have been identified or described to be a defect observed by the plaintiff’s expert, Mr. Chin Cheong, in the three BA Reports.

39     Paragraph 5.1 of BA’s First Report contains a table setting out the defects identified at House 7, titled “Table of comparison of the reports”. The third and fourth columns set out the inspection findings and observations from the City Surveyors’ Report, the fifth and sixth columns set out the inspection findings and observations from the Chesterfield Report, and the seventh, eighth and ninth columns titled “BA’s view” set out Mr. Chin Cheong’s findings and observations from his site inspections of House 7.

40     Notably, Mr. Chin Cheong stated in paragraph 5.2 of BA’s First Report that he “classified the defects into ‘existing defect’, ‘deteriorated defect’ and ‘new defect’. In our view, the ‘deteriorated defect’ and ‘new defect’ were caused by the construction activities in No. 5 Siglap Avenue South” (emphasis added in bold).

41     Paragraph 4.2 of both BA’s Second and Third Reports also contain a table setting out Mr. Chin Cheong’s observations on the defects and damage identified at House 7 following his further site inspections. In both Reports, this table is set out under the heading “Schedule of Defects and Observations”.

42     Hence, reading Para 1 of the Consent Judgment together with the three BA Reports, the most sensible interpretation of the scope of the Consent Judgment in my view is that the defects for which damages are to be assessed include the following:

(a)     defects or damage listed in paragraph 5.1 of BA’s First Report which Mr. Chin Cheong has identified either as a “deteriorated defect” or a “new defect”;

(b)     all defects and observations listed in paragraph 4.2 of BA’s Second Report; and

(c)     all defects and observations listed in paragraph 4.2 of BA’s Third Report.

Quantum of damages due to the plaintiff

43     Finally, I turn to consider the issue of quantum of damages.

44     An issue I faced in the present case was that neither party clearly addressed the scope of the Consent Judgment or identified the full list of defects or damage for assessment in their submissions. This was further complicated by the manner parties had chosen to present their quantification of damages for assessment.

45     As mentioned at [13] and [17] above, both parties had presented their submissions on quantum of damages in accordance with the Richfield Quotation, rather than in relation to the defects or damage identified in the BA Reports. Furthermore, considerable time was spent cross-examining and re-examining witnesses (both factual and expert) on whether the reconstruction works were the cause for each defect or damage photographed in the three BA Reports. This meant that a large part of the evidence in this case was unfortunately not relevant and of minimal use for the purposes of assessing damages.

46     After sifting through over 2800 pages of parties’ documents and over 1,000 pages of transcripts of the assessment hearing, which took a considerable time to sort out, I set out in Annex 1 a full list of the defects and damages for assessment (82 items in total), together with parties’ respective submissions on quantum as well as the final damages assessed.

47     Broadly, my assessment of damages can be categorized into three groups.

(1)   Items which I allowed the plaintiff’s submission in entirety

48     First, items for which I allowed the plaintiff’s submission in entirety. For most of these items, the defendants’ only argument and submission was that they should not be allowed as no causation has been established. For the reasons aforementioned, I cannot accept this submission.

49     Further, the defendants either did not propose any alternative method or quantum of rectification or the alternative was in my view unworkable, whereas the plaintiff’s submission is reasonable and appropriate. Accordingly, I awarded the damages sought by the plaintiff.

(2)   Items which I allowed in part

50     Second would be items for which I allowed either the plaintiff’s submission in part, or allowed the defendants’ alternative submission. This include instances where the plaintiff’s proposed rectification work amounts to an improvement work, and I have applied an appropriate discount to take this into account. There are also defects where the defendants’ proposed rectification works are more consistent with the plaintiff’s expert’s recommendation as stated in the BA Reports and more appropriate as compared to the plaintiff’s proposal.

51     Further, there are some defects which are clearly evidenced by the documentary evidence, but parties did not make any submissions on what the rectification works should be or the costs thereof. In these instances, the court has awarded a nominal sum to the plaintiff.

(3)   Items which I did not allow

52     The final group would be items which I did not allow. These include:

(a)     proposed rectification works to defects and damage that were not to the plaintiff’s property (House 7) but rather, to the defendants’ property (House 5) instead. These claims cannot be allowed;

(b)     proposed rectification works which either overlap with or would be included as part of other proposed rectification works which have been allowed. There should be no double-counting; and

(c)     proposed rectification works which do not relate to or address the identified defects at all.

(4)   Summary

53     Based on the above, I assessed rectification costs at a total of $99,304.00. The full tabulation and breakdown as well as reasons for assessment are found in Annex 1.

54     The defendants relied on LBE Engineering Pte Ltd v Double S Construction Pte Ltd (“LBE Engineering”) [2022] SGHC 92 and argued in their closing submissions that the Court should order a 5% reduction to the quoted rectification sums allowed, since the plaintiff had only obtained quotations from a single contractor, i.e. Richfield, in the course of these proceedings.

55     Having reviewed and analysed the defects and damages identified in the BA Reports, the recommendations for repair and/or rectification works as stated in the BA Reports, as well as the corresponding proposed rectification works in Richfield’s Quotation, there is in my view nothing to suggest that the figures stated in the Richfield Quotation (having regard to the description of works Richfield had quoted for) are inflated or unreasonable. The present matter can also be distinguished from LBE Engineering since there is nothing in the present case to suggest that the figures in the Richfield Quotation have been inflated because of any relationship between the plaintiff and Richfield or any contractor hired to conduct the rectification works. In the circumstances, I do not think it is appropriate to apply any reduction in the present case.

Conclusion

56     In conclusion, the total rectification costs assessed and allowed is $99,304.00. The full breakdown can be found in Annex 1.

57     I will hear parties on the issue of interest and costs.

58     Finally, I wish to record my thanks to counsel for their patience and resilience in seeing through this assessment.

______________________

Annex 1:

The following table contains a breakdown of the damages which I awarded to the plaintiff.

[LawNet Admin Note: Please click on the link to the PDF above to view Annex 1.]

[note: 1]Plaintiff’s Bundle of Documents (“PBOD”) p1176 – 1284.

[note: 2]PBOD p1400 – 1436.

[note: 3]PBOD p1530 – 1580.

[note: 4]PBOD p2739.

[note: 5]Plaintiff’s Supplementary AEIC at [9]

[note: 6]PBOD p2739

[note: 7]Plaintiff’s Bundle of Pleadings (“BOP”) Volume 4 p1-2.

[note: 8]Plaintiff’s Closing Submissions (“C Subs”)

[note: 9]Plaintiff’s Closing Submissions dated 24 February 2023 (“C Subs”) at paragraph 5.

[note: 10]C Subs at p13.

[note: 11]Defendants’ Closing Submissions dated 24 February 2023 (“D subs”) at paragraph 13

[note: 12]D subs at paragraphs 9 and 13.

[note: 13]PBOD p1182

[note: 14]C Subs at page 13.

"},{"tags":["Criminal Law – Offences – Property – Cheating","Criminal Procedure and Sentencing – Sentencing – Principles"],"date":"2024-09-23","court":"District Court","case-number":"District Arrest Case No 904122 of 2023 & 2 Others, District Arrest Case No 904123 of 2023 & 2 Others","title":"Public Prosecutor v Andy Oie Zheng Jie and another","citation":"[2024] SGDC 238","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32209-SSP.xml","counsel":["Kelly Ng (Attorney-General's Chambers) for the Public Prosecutor","Kalidass Murugaiyan/ Koh Boon Yang (Kalidass Law Corporation) for the first Accused","Josephus Tan/ Cory Wong Guo Yean (Invictus Law Corporation) for the second Accused."],"timestamp":"2024-09-28T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Andy Oie Zheng Jie and another

Public Prosecutor v Andy Oie Zheng Jie and another
[2024] SGDC 238

Case Number:District Arrest Case No 904122 of 2023 & 2 Others, District Arrest Case No 904123 of 2023 & 2 Others
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Kelly Ng (Attorney-General's Chambers) for the Public Prosecutor; Kalidass Murugaiyan/ Koh Boon Yang (Kalidass Law Corporation) for the first Accused; Josephus Tan/ Cory Wong Guo Yean (Invictus Law Corporation) for the second Accused.
Parties: Public Prosecutor — Andy Oie Zheng Jie — Sim Tze Wei, Nicholas

Criminal Law – Offences – Property – Cheating

Criminal Procedure and Sentencing – Sentencing – Principles

23 September 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       These two related cases involve two friends who had committed online cheating offences, or in current parlance, e-commerce scams. By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and the prescribed punishment; as well as

(c)     parties’ positions and my decision.

Brief facts

2       The accused persons, Andy Oie Zheng Jie (“Mr Oie”), a 32-year-old Singaporean, and Sim Tze Wei, Nicholas (“Mr Sim”), a 26-year-old Singaporean, conspired with each other to sell counterfeit Apple AirPods to unsuspecting buyers. The two friends bought three batches of such AirPods from a seller on Alibaba and listed them as genuine items for sale on their Carousell accounts, one owned by Mr Oie and two owned by Mr Sim. Over the course of seven days, 14 victims fell prey to their deception and were dishonestly induced to deliver a total of $3,405 to Mr Oie and Mr Sim to purchase the counterfeit AirPods.

Charges

3       Mr Oie and Mr Sim have each pleaded guilty to a charge of abetting by conspiracy an offence of cheating under section 420 of the Penal Code 1871 (2020 Rev Ed) two such victims in a day in March 2023. They have also each consented to have a second similar charge taken into consideration for the purpose of sentence (“TIC”) for cheating four victims over two days in February 2023. For Mr Oie, he consented to a third TIC charge of abetting by aiding Mr Sim cheat eight victims over four days in March 2023; for Mr Sim, he also did so in respect of cheating these eight victims.

Prescribed punishment

4       For the cheating charge which they have pleaded guilty to, both Mr Oie and Mr Sim must be punished with imprisonment that may extend to ten years. This can also be coupled with a fine. They are subject to twice that maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the cheating charge is framed as an amalgamated charge for two separate transgressions amounting to a course of conduct under section 124(4) of the CPC.

Parties’ positions

5       The prosecution has sought to impose a sentence of four to six months’ imprisonment on both Mr Oie and Mr Sim based on:

(a)     deterrence in the face of the prevalence of scams;

(b)     the use of the Internet to perpetuate their scams;

(c)     the presence of planning and premeditation demonstrating a conscious decision by Mr Oie and Mr Sim to commit the crime;

(d)     the difficulty the victims faced in detecting the offences because of the particular mode of deception deployed by Mr Oie and Mr Sim;

(e)     the persistence in their offending and efforts made to evade detection until they were caught red-handed when they made a sale to an undercover police officer;

(f)     personal financial gain that motivated the commission of the offences;

(g)     the number of victims involved; and

(h)     the presence of similar TIC charges evidencing a pattern of criminal activity.

6       Mr Oie is not a first offender and has largely unrelated criminal antecedents. He had previously committed property-related offences but these were dated, where he offended as a juvenile almost two decades ago. Mr Sim is also not a first offender but his criminal antecedents are unrelated as well.

7       The defence has sought a term of six to eight weeks’ imprisonment for Mr Oie and one that is no more than eight to ten weeks for Mr Sim:

(a)     both counsel for Mr Oie and Mr Sim emphasised the full and voluntary restitution made by their respective clients and their early indications of guilty plea. In particular, counsel for Mr Sim has highlighted that Mr Sim was always prepared to make full restitution, including Mr Oie’s share in the event that Mr Oie is unable to do so;

(b)     counsel have also submitted that the sentence that the prosecution has sought is a marked departure from the three-month imprisonment sentence based on case precedents that involve more egregious facts and have also considered the factors that the prosecution has relied on to justify its deterrent sentence; and

(c)     counsel for Mr Oie has sought to differentiate the lower culpability level of his client from that of Mr Sim.

Court’s decision

8       After convicting both Mr Oie and Mr Sim on their respective cheating charges that they have pleaded guilty to before me on 13 September 2024, I reserved my judgement on sentence to afford time for Mr Oie to make full voluntary restitution. He has since done so. I now sentence both Mr Oie and Mr Sim to three months’ imprisonment and set out the reasons for my decision.

Issues to be decided

9       There are three main issues I have to decide in this case.

Operative sentencing principle; nature of offence and offender; application of case authorities

10     They are:

(a)     first, the main sentencing principle(s) operating in this case;

(b)     second, the nature of this particular offence and the specific nature of Mr Oie and Mr Sim as offenders; and

(c)     third, how to approach and take any guidance from relevant case authorities in discerning the appropriate sentence for this case.

11     I resolve the issues in this way:

(a)     deterrence and retribution are the operative sentencing principles in this case. There is a strong public interest in the prevailing context of e-commerce scams to deter the use of the internet as a medium to commit online cheating offences. But retributive considerations also demand that the punishment fits the crime and the criminal. In this case, retributive and deterrent concerns are aligned given the egregious circumstances of offending and the wholly blameworthy conduct of Mr Oie and Mr Sim in their criminal enterprise;

(b)     to the extent that full restitution will restore the pecuniary loss of the victims who had come forward and will mitigate the harm caused to them, the severity of the offence is reduced. However, the full extent of the harm is potentially farther reaching because a significant majority of the offending transactions were left unreported. There is also the intangible harm caused to Apple’s reputation. The particular mode of deception deployed by Mr Oie and Mr Sim using valid serial numbers that could be verified by Apple perpetuates the victims’ belief that they had bought genuine but defective products from Apple; and

(c)     sentencing remains a fact-sensitive exercise that encompasses a determination of criminality that has both quantitative and qualitative aspects. Insisting on linear quantitative proportionality between the sentence to be meted out in the present case and the economic value of the transactions, the number of proceeded with or TIC charges, or the number of other factors previous cases took into account and their resulting sentences, misses the woods for the trees. The overall qualitative criminalities of Mr Oie and Mr Sim justify the imposition of a three-month imprisonment term on each of them.

Analysis of issues

12     I analyse the issues in turn.

Issue 1: Deterrence and retribution as operative sentencing principles

13     Deterrence and retribution are the main sentencing principles operating in this case.

Deterring use of internet as medium to commit online cheating offences

14     There is a strong public interest to deter potential offenders from using the Internet as a medium to reach a larger number of potential victims: PP v Syamsul Hilal bin Ismail [2012] 1 SLR 973 (“Syamsul”) at [36]. Like-minded potential offenders should be deterred in using the internet to prey on a large pool of potential scam victims: Syamsul at [37]. In this case, the internet misuse is not peripheral because the ability to commit multiple cheating offences involving numerous victims over a short span of seven days was largely facilitated by the duo’s use of the internet to effectively publicise their scams through listing the counterfeit AirPods as genuine items for sale on their respective Carousell accounts: Syamsul at [41]. Would-be criminals should be deterred from using the Internet as a cheap, convenient and effective publicity platform to reach large numbers of potential victims in a targeted manner as Mr Oie and Mr Sim did in a popular online marketplace: Syamsul at [42].

Situating public interest in current context of e-commerce scams and mediums of perpetration

15     While I heed the caution sounded in Huang Ying-Chun v PP [2019] 3 SLR 606 at [111] about drawing conclusions about the prevalence of certain offences based on statistics and more importantly how any such prevalence correlates to the particular offence and offender at hand, it is difficult in the present case to think of the public interest in the abstract. In this regard, I find it helpful, by way of background, to situate the public interest in the context of the current realities of e-commerce scams borne out by relevant and reliable statistics. According to the publicly-available Singapore Police Force’s Annual Scams and Cybercrime Brief 2023, e-commerce scams make up one of the two top scam types reported in 2023, recording the second highest number of reported cases among all scam types for 2023, with Carousell being the second most popular medium used in e-commerce scams.[note: 1] Public interest in deterring the use of the internet, specifically popular mediums such as Carousel, to commit online cheating offences should properly be understood in this context.

Proportionality through retributive sentencing

16     Ultimately, deterrent considerations have to be tempered by proportionality in sentencing by retributive justice insisting on pegging punishment to the level of culpability and blameworthiness of the offender. A convenient proxy for this is an analysis of the relevant offence-specific harm-culpability factors, as well as offender-specific aggravating and mitigating factors that present themselves in this case.

17     For online cheating scams, sentences in the range of three to four months per charge were imposed in previous cases where the amount involved is about S$1,000 or less, even for first offenders who pleaded guilty: PP v Lim Shi Hui [2018] SGDC 108 (“Lim”) at [36]; see also PP v Tan Li Hui Matthew [2022] SGDC 29 at [31]-[33]. The starting point for an online cheating offence involving less than S$1,000 is three months’ imprisonment: Lim at [39(a)].

Issue 2(a): Nature of offence and harm caused

18     I preface the discussion on the harm caused by the offence with the nature of the scams that Mr Oie and Mr Sim had perpetrated in general.

E-commerce scams deceptively clothed with semblance of legitimacy

19     The scams that Mr Oie and Mr Sim had engaged in were atypical of the nature of the usual e-commerce scams that involve the sale of goods and services without physical meet-ups, where victims would come across attractive deals on online marketplaces or social media platforms but would fail to receive the goods and services after making payment.[note: 2] In the present case, the deception was more egregious because the scams masqueraded effectively as legitimate transactions with actual delivery of goods (with valid and verifiable product serial numbers) on payment by Mr Oie and Mr Sim who would meet up with the buyers as sellers. However, no refunds were effected when the buyers caught on that their valid product serial numbers were duplicated widely across the same products of other buyers.

Harm caused by offence

20     There are at least three facets to the harm caused in this case: first, the actual quantifiable harm caused to the immediate victims of crime who came forward because they had suffered detriment in the form of a total loss of $3,405; second, the intangible reputational harm to Apple’s reputation by using its valid and verifiable product serial numbers to tout counterfeit Apple products as genuine; and third, the harm that has not been crystalised because the value of the transactions that were actually reported by the victims who came forward only represent a fraction of the total sales made by Mr Oie and Mr Sim from peddling the counterfeit goods.

(1)   Actual harm caused to 14 victims mitigated by full restitution

21     The charge that Mr Oie and Mr Sim has each pleaded guilty to involves two victims parting with S$560. The TIC charges involve 12 other victims and their S$2,845. The value of the property cheated is a convenient starting point for sentencing, but in this case, the victims will eventually not suffer any detriment because full restitution has been made: PP v Lim Beng Kim, Lulu [2023] SGDC 9 (“Lulu Lim”) at [22] and [23]. The actual harm caused by the offences will be mitigated as such with respect to the 14 victims that have come forward. However, this cannot be over emphasised when the fuller extent of the harm caused is considered.

(2)   Intangible reputational harm caused to Apple

22     First, there is also the intangible reputational harm caused to Apple by virtue of the particular mode of deception deployed by Mr Oie and Mr Sim of using Apple’s own product serial numbers against itself and its customers. This perpetuates the victims’ belief that they bought genuine but defective Apple products. Indeed, in response to the victims who got in touch with them to say that the AirPods they bought were either not working or were not genuine products, Mr Oie and Mr Sim fell back on the refrain that their products checked out using valid and verifiable (or verified in some cases by the victims themselves or by them with the victims) serial numbers.

(3)   Full extent of harm farther reaching because majority of offending transactions not reported

23     Second, I am cognisant that the full extent of the harm caused is potentially farther reaching because there are more victims involved who had not reported their transactions. The value of the transactions involving the 14 victims represent only 35% of the total sale of S$9,780 in counterfeit AirPods, which means that the majority of the offending transactions have not been reported and the full extent of the harm has therefore not crystalised as such.

24     In any event, while the victim’s pecuniary loss and the offender’s pecuniary benefit is proportionate to the severity of the sentence, this relationship is not linear because there are other relevant sentencing considerations such as offender culpability and offender-specific factors that have to be evaluated and weighed: Lulu Lim at [29].

Issue 2(b): Nature of offence and offender culpability

25     While restitution may go some way in reducing the harm caused by the offence and therefore the severity of its nature, this does not reduce Mr Oie and Mr Sim’s culpability in the offence, and in turn the severity of the nature of their offending behaviour, in any way.

Both Mr Oie and Mr Sim equally culpable

26     Both Mr Oie and Mr Sim are equally culpable in the criminal enterprise. It is unnecessary to split hairs over their roles; the argument that one is more (or less) culpable than the other loses considerable force when these facts are properly considered together:

(a)     both of them paid for the three batches of counterfeit AirPods that they bought from the seller on Alibaba;

(b)     the ill-gotten gains from the enterprise were split equally between them;

(c)     both of them listed the counterfeit products for sale on their Carousell accounts;

(d)     they would meet each customer either together or on their own;

(e)     if they drove to meet the customers together, either one would drive Mr Oie’s vehicle with the other as passenger; Mr Oie’s vehicle would also be used if either one drove to meet the customers alone; and

(f)     they struck a common modus operandi between themselves, which was to relay to the customers that the AirPods they sold bore valid and verifiable serial numbers to lend legitimacy to the otherwise counterfeit products that were in fact peddled.

Circumstances of offending aggravating

27     The circumstances of offending were aggravating. Both Mr Oie and Mr Sim are wholly culpable in the sheer doggedness in which they had pursued the offence. As early as the first two to three sales from the first batch of AirPods they had bought, they had confirmed with the seller and knew they were selling counterfeit products because the AirPods had duplicate serial numbers. But this did not deter them from buying two more batches of counterfeit AirPods to sell. They were driven by sheer greed and personal gain (for extra income in Mr Oie’s case and to pay off credit card debts in Mr Sim’s case) to cheat and it is in this context that the particular egregiousness of this motive has been singled out.

28     Indeed, this motive continued to feed the persistence in their offending behaviour. This is perplexing. When the victims started to confront Mr Oie and Mr Sim on or around 10 March 2023 about their ruse, this distinctly afforded a point of repentance and an opportunity for the duo to show remorse. Instead, they doubled down in their Damoclean situation of being reported to the police. They made plans to evade detection by:

(a)     closing ranks and getting their stories straight, aligning themselves to the account that their products carried valid and verifiable serial numbers (but which they knew had been duplicated widely across other products);

(b)     discussing about withdrawing their ill-gotten gains from their bank accounts; and

(c)     discussing about going dark on their instant messaging accounts.

29     Emboldened by the belief that their pseudonyms, which they had used to transact with the victims over PayNow, afforded them anonymity and shielded them from being traced by the police, they decided to persist with their criminal enterprise. It is in this context that the seriousness of the cheating charge that Mr Oie and Mr Sim has pleaded guilty to ought to be appreciated. It involves the least number of victims and the smallest transaction value as compared to the other two charges, but it is the most egregious because it represents blatant and defiant recalcitrant conduct. Knowing that their victims were on to them did not stop Mr Oie and Mr Sim in their tracks. The duo nevertheless went on to cheat their last two victims on 16 March 2023 and only stopped, not by choice, when they were caught red-handed making a sale to undercover police on 17 March 2023 posing as buyers. This effectively limited any further harm caused but to be sure, credit cannot be given to Mr Oie and Mr Sim for this. Indeed, the potential for further harm was very real. Upon their arrest, 16 pairs of AirPods were found in their possession and another 25 were subsequently delivered. These could easily have been sold to more unsuspecting victims.

Manner of deception reprehensible

30     For the specific cheating charge at hand, the mode of deception that was deployed is also reprehensible. These two particulars victims were lulled with the assurance that the valid serial numbers of their AirPods could be verified officially. This they did and the numbers checked out, clothing the transactions with a veil of legitimacy, making it difficult to detect the actual deception involved. Unbeknownst to them, these numbers have been widely duplicated and applied to other products. Indeed, it took the other victims finding one another after leaving reviews on Mr Sim’s Carousell account to discover that the AirPods they bought had duplicate product serial numbers.

Issue 2(c): Offender-specific personal aggravating and mitigating factors

31     The defence has raised restitution and the early indication of guilty plea as personal mitigating factors, whereas the prosecution has raised the aggravating presence of the TIC charges and the amalgamated nature of the charges.

Voluntary restitution and guilty plea not persuasive indicators of genuine remorse and contrition

32     I accept that the full restitution made by Mr Oie and Mr Sim goes some way towards reducing the harm and therefore severity of the offence. I have already explained why this does not make the nature of their offending behaviour any less blameworthy. I am also less persuaded that the voluntary restitution, along with their early indications of guilty plea after the fact, stem from genuine remorse and contrition. Expressions of regret and remorse after the offender has been caught are easy to profess and difficult to prove: PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 at [26]. This is no more or less difficult than other findings of fact that a trial or sentencing judge has to grapple with: Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [74], and the contemporaneity of documents, evidence, behaviour and conduct at the material time in question has been used as a reliable fact-finding yardstick. In this case, contemporaneous displays of guilt, remorse and contrition at the time of the offence that would have been more persuasive are clearly absent. Multiple victims coming forward to confront Mr Oie and Mr Sim provided them the golden opportunity to repent. Not only did they fail to seize this opportunity because they were obviously confident in thinking that their game was not up, they actually went ahead to commit the present offence and cheated another two victims. They did not stop until they were caught. Their behaviour as such is incongruous to the present claim of remorse and contrition that they lay. An equally plausible explanation is that they are merely sorry that they got caught in the circumstances.

33     In any event, any mitigatory weight to be accorded to these personal factors must also be weighed against the personal aggravating factors that are present.

Amalgamated charge as signalling higher criminality and gravity of conduct

34     Although both Mr Oie and Mr Sim have each pleaded guilty to a single cheating charge, that charge has been amalgamated. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct as is the present case: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Presence of TIC charge aggravating

35     The TIC charges are likewise amalgamated, framing 12 separate transgressions as a course of conduct across two single charges. They also involve cheating under section 420 of the PC similar to the charge that is proceeded with against Mr Oie and Mr Sim. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. In this case, they also show a pattern of offending that suggests a deliberate rather than causal involvement in criminal activity: UI at [37].

Issue 3: Application of case authorities

36     I consider the approach to applying case authorities to ascertain the appropriate sentence in this case.

Nature of sentencing as highly evaluative rather than mathematical exercise

37     Counsel for both Mr Oie and Mr Sim have commendably cited and sought to distinguish relevant case authorities that involved more egregious facts and considered the factors that the prosecution has relied on to justify its deterrent sentence. However, taking on too granular an exercise in this regard runs the real risk of missing the woods for the trees. Sentencing is not a mathematical exercise; it is a highly evaluative one where many discrete decisions must be made on the weight to be given to many sentencing factors to arrive at the ultimate sentence: Lulu Lim at [29].

Insistence on linear quantitative proportionality with other cases unhelpful

38     It is therefore unhelpful, for instance, to insist on linear quantitative proportionality between the sentence and the number of proceeded with and TIC charges in previous cases and their resulting sentences, where amalgamated charges are concerned such as in the present case; equally so to peg criminality quantitatively to the economic value of the offending transactions and the number of other factors previous cases took into account and their resulting sentences. Sentencing must remain a fact-sensitive exercise encompassing a determination of criminality that has both quantitative and qualitative aspects.

Qualitative aspect of criminality

39     In this case, the overall qualitative criminalities of Mr Oie and Mr Sim are determined by:

(a)     the multiple offences involving numerous victims that were committed over a span of merely seven days facilitated by their use of Carousell as the online medium with which to reel in unsuspecting victims;

(b)     not only the actual harm caused to the 14 victims that will be mitigated by the full restitution made, but also the intangible reputational harm caused to Apple, and the potentially farther-reaching extent of the harm caused because the majority of the offending transactions were not reported;

(c)     clothing the e-commerce scams with a semblance of legitimacy by delivering in person actual (but counterfeit) goods with valid and verifiable (but duplicate) product serial numbers;

(d)     persistent offending behaviour in the face of their subjective knowledge of the counterfeit nature of the goods they were selling, as well as the blatantly recalcitrant, unremorseful and defiant criminal conduct when faced with the Damoclean situation of being reported to the police; and

(e)     the mode of deception specifically deployed on the two victims relating to the charge that Mr Oie and Mr Sim have each pleaded guilty to, by getting them to verify the product serial numbers that would check out to assure them that they were buying genuine products, when Mr Oie and Mr Sim knew the numbers were duplicated widely and applied to other products.

40     It is this factual and qualitative aspect of criminality (rather than a reduction to the quantitative factors that represent them), which justifies the imposition of a three-month imprisonment term for this scale, nature and culpability of offending. Counsel for Mr Oie has eloquently put forth the proposition that no one factor trumps all and the factors do not come together to support a higher sentence on the same set of facts. I hold a different view. The culpability of Mr Oie and Mr Sim is a decisive factor. The mode of deception that they have deployed through the use of valid and verifiable product serial numbers, coupled with their persistence in offending till they were caught red-handed, changes the complexion of this case and elevate its factual matrix to a qualitative level comparable with that which may appear to be more egregious at first blush in the other cases.

Conclusion

41     There is strong public interest in the prevailing context of e-commerce scams to deter the use of the internet as a medium to commit online cheating offences. In this case, the 14 victims who have come forward will be restored by the full restitution made, but the harm caused is not confined to the pecuniary loss suffered by these victims. Apple would have suffered intangible reputational and goodwill loss as well. The full extent of the harm is also potentially farther reaching because the majority of the offending transactions were unreported.

42     The severity of the offence may be reduced because the harm caused will somewhat be mitigated, but it does not reduce the severity of the offending behaviour in any way because of its aggravated nature borne out by the culpability of both Mr Oie and Mr Sim. The personal aggravating factors are not outweighed by the less persuasive case for any substantial mitigatory weight to be accorded to voluntary restitution and the early indications of guilty plea as reliable proxies of genuine remorse.

Sentence of three months’ imprisonment imposed

43     Viewed in the round, their overall qualitative criminality justifies the imposition of a sentence of three months’ imprisonment on both Mr Oie and Mr Sim. I backdate their respective sentences to 17 March 2023 when they were first arrested to take into account any periods of remand and custody and to exclude their bail period from 24 March 2023 till date.

[note: 1]Singapore Police Force, “Annual Scams and Cybercrime Brief 2023” <https://www.police.gov.sg//-/media/Spf/Media-Room/Statistics/Annual-Scams-and-Cybercrime-Brief-2023/Annual-Scams-and-Cybercrime-Brief-2023.ashx> (18 February 2024) (“SPF Annual Scams and Cybercrime Brief 2023”) at paras 8 and 9(b).

[note: 2]SPF Annual Scams and Cybercrime Brief 2023 at paras 9(b)(ii).

"},{"tags":["Criminal Procedure and Sentencing – Ill-treatment of Child under Section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act Chapter 38, 2001 Rev Ed – Sentence"],"date":"2024-09-23","court":"District Court","case-number":"DAC 906879/2022 and another, Magistrate's Appeal 9155/2024/01","title":"Public Prosecutor v JDB","citation":"[2024] SGDC 248","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32203-SSP.xml","counsel":["DPP David Menon (Attorney-General's Chambers) for the Prosecution","Michelle Yap Ho (M Yap Law) for the Accused"],"timestamp":"2024-09-27T16:00:00Z[GMT]","coram":"Carol Ling","html":"Public Prosecutor v JDB

Public Prosecutor v JDB
[2024] SGDC 248

Case Number:DAC 906879/2022 and another, Magistrate's Appeal 9155/2024/01
Decision Date:23 September 2024
Tribunal/Court:District Court
Coram: Carol Ling
Counsel Name(s): DPP David Menon (Attorney-General's Chambers) for the Prosecution; Michelle Yap Ho (M Yap Law) for the Accused
Parties: Public Prosecutor — JDB

Criminal Procedure and Sentencing – Ill-treatment of Child under Section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act Chapter 38, 2001 Rev Ed – Sentence

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9155/2024/01.]

23 September 2024

District Judge Carol Ling:

Introduction

1       The Accused was a 32 year-old mother who pleaded guilty to a charge of ill-treating her son, then six years old.

2       The charge read:

You, are charged that you, on 11 May 2020, between 12.03pm and 12.14pm, at Block 350 Anchorvale Road #xxx Singapore, being the person who had the care of a child [victim], a male who was six years old at the time of the offence, did ill-treat the said child by wilfully doing an act which was likely to cause him unnecessary injury, to wit, by kicking him, slapping him, and hitting him with a belt more than 100 times, and you have thereby committed an offence under section 5(1) punishable under section 5(5)(b) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”).

3       One other charge under section 182 of the Penal Code, Chapter 224 2008 Rev Ed[note: 1] was taken into consideration for purposes of sentencing. The Accused had given false information to a police officer that her then-boyfriend was the one who had caused unnecessary injuries to the child.

4       Prior to sentence, a Newton Hearing was conducted to determine whether the Accused's Adjustment Disorder had a contributory link to the offence, given the divergent views contained in the medical reports of Dr Lee Yu Wei from the Institute of Mental Health (IMH)[note: 2] and Dr Jacob Rajesh from Winslow Clinic of Promises Healthcare Pte Ltd.[note: 3] At the conclusion of the Newton Hearing, it was a finding of this court that there was no contributory link between the Accused’s Adjustment Disorder and the offence.[note: 4]

5       I imposed an imprisonment term of 13 months on the Accused for the ill-treatment of her child. This is the Prosecution’s appeal against sentence.

Facts of the Case[note: 5]

6       Save for the last paragraph in the Statement of Facts (which formed the issue for the Newton Hearing), the Accused admitted to the facts presented by the Prosecution without qualification.

7       At the time of the offence, the victim lived with the Accused, the Accused’s then-boyfriend, and several of the victim’s siblings, half-siblings, and step-siblings. The Accused had custody of the victim.

8       On 11 May 2020, at around 12pm, the Accused was at her home at Block 350 Anchorvale Road, #xxx, Singapore. She was in her bedroom with several of her children, including the victim. The Accused was punishing the victim for misbehaviour and had told the victim to do a handstand. The victim was unable to stay in the handstand position. The Accused, who had been brandishing a rotan, picked up a belt.

9       Between 12.03-12.14pm on 11 May 2020, the Accused began to strike the victim. The Accused struck the victim with a belt, and kicked and slapped the victim. The victim cried in pain, but the Accused ignored his pleas for her to stop. At one point, the Accused paused, before resuming the beating. In total, the Accused hit the victim with a belt more than 100 times, using both the strap and the buckle. The Accused struck the victim all over his body, including his face. The beating was captured on closed-circuit television (CCTV) camera.

10     On 12 May 2020, the Accused brought the victim to Nanyang NPC, where she lodged a police report falsely alleging that the Accused’s then-boyfriend had administered a beating to the victim. The victim was observed to have numerous bruises on his body and scratches on his face. On 13 May 2020, the victim was examined by Dr Juliet Tan Sher Kit at KK Women’s and Children’s Hospital. Dr Tan noted that the victim had sustained more than 50 bruises and abrasions.[note: 6]

Parties’ Position on Sentence

11     The Prosecution urged the Court to impose a sentence of between 16 to 18 months’ imprisonment.[note: 7] The learned Deputy Public Prosecutor (DPP) submitted that deterrence and retribution were the dominant sentencing considerations, highlighting these factors:

(a)     The offence took place in a familial setting and there was an abuse of trust;[note: 8]

(b)     The injuries were severe;[note: 9]

(c)     The manner and duration of the ill-treatment- the Accused had administered a ferocious and sustained beating on the victim, and also struck the victim on his head (which was a vulnerable part of the body);[note: 10]

(d)     A weapon was used, in this case both a belt and its buckle;[note: 11]

(e)     The young age of the victim – he was only six years at the time of the offence;[note: 12]

(f)     The Accused had attempted to conceal the offence;[note: 13]

(g)     Little weight ought to be given to the Accused’s plea of guilt as an indication of remorse since the evidence against the Accused was overwhelming (captured on closed circuit television - (CCTV)).[note: 14]

12     Defence Counsel urged the Court to impose a sentence of eight to 10 months’ imprisonment, which was a sentence more in line with case precedents and the facts of the case.[note: 15] Contrasting the present case with Public Prosecutor v GEC [2021] SGDC 236 (“GEC”), a case involving an offender who pleaded guilty to seven charges under the CYPA, Defence Counsel submitted that the facts in GEC were more aggravating. In GEC, the offender had abused her two daughters over many occasions and even when she was under investigations and on bail for similar offences.[note: 16]

Sentencing Considerations

Deterrence and Retribution - the Dominant Sentencing Considerations

13     Deterrence and retribution were the dominant sentencing considerations in this case. It was aptly stated in the case of GEC at [40]:

“In determining the appropriate sentence, the dominant sentencing considerations were deterrence and retribution. Children are vulnerable victims and must be given the full protection of the law. In the present case, both victims were particularly vulnerable in view of their very young age; they could do nothing to protect themselves. The defendant, as a parent, was under a moral obligation to care for the children. Her acts of physical abuse against them were a betrayal of the trust that they had placed on her. Parents must not use violence against their children under any circumstances, and such acts of violence must be deterred. The sentence must also carry a retributive element in proportion to the physical and likely psychological harm caused to the child.”

14     The scenes of the incident captured on CCTV footage and played in a closed court, were heart-wrenching. It was hard to watch. The victim was a young boy, only six years old at the time of the offence. He was punished for misbehaving and was ordered to do a handstand. At some points, he was unable to maintain his handstand and faltered. In the course of that, the Accused kicked and slapped the victim, and used a belt to hit the victim more than 100 times. The victim was vulnerable, helpless to defend himself physically against his mother. All he could do was to cry out to and plead with the Accused to stop hitting him.[note: 17]

15     It is right that the sentence imposed in this case should sufficiently reflect the court's disapprobation for the actions of the Accused and to also send a strong message to all parents and guardians of children that excessive force and/or the use of violence, even if it is said to be in the name of discipline, could not be tolerated.

The Relevant Aggravating and Mitigating Factors

16     In arriving at the appropriate sentence, I took into account the aggravating factors raised by the Prosecution (listed at [11] above).[note: 18] The incident was committed in a familial setting and there was an abuse of a position of trust.[note: 19]A child looks up to his parent for security and protection but in this case, the victim received none of those. Instead, he suffered physical abuse at the hands of his mother. The injuries suffered by the victim were also severe as he was covered in bruises, abrasions and hematomas all over his body.[note: 20] The use of violence on the victim by the Accused’s kicking and slapping was made worse when she used a belt (both belt and buckle) to hit him more than 100 times, over an extended period of time. The victim was also struck on vulnerable parts such as his head and face.[note: 21] The Accused had also attempted to conceal her involvement in the offence by naming her boyfriend as the one who caused the injuries.[note: 22]

17     These aggravating factors aside, I was mindful that the Accused had pleaded guilty. Notwithstanding the fact that the offence was captured clearly on CCTV and there was no running away for the Accused, her guilty plea saved judicial and prosecutorial resources. By so doing, she also spared her son from testifying in court against his own mother.[note: 23] When considered along with the steps the Accused had taken after the incident – attending counselling at Viriya Community Services from 2021 to 2022 (16 sessions in total)[note: 24] as well as making the effort to re-connect with the victim under supervision after her bail conditions were varied,[note: 25] I was satisfied that the Accused was genuinely remorseful for what she had done.

18     The Accused may also be treated as a first offender. As fairly pointed out by the Prosecution, even though this was not her first brush with the law, her previous conviction was dated and she had been sentenced to probation;[note: 26]

19     The Accused's ill-treatment of the victim on this occasion was one-off. There was no history or pattern of abuse or any prior incidents where the Accused was violent towards the victim or any of her other children. Defence Counsel emphasized that prior to this incident, the Accused was not on the Child Protection Services watchlist, indicating that there were no prior concerns about her conduct as a mother.[note: 27] On the evidence, I was prepared to accept Defence Counsel’s submission that this episode was a result of the Accused’s excessive use of force in disciplining the victim on this occasion rather than a pattern of violent behaviour towards the victim or her other children. Thankfully, the injuries suffered by the victim, whilst severe, did not, result in any permanent injuries.[note: 28]

The Appropriate Sentence

Punishment Prescribed

20     The punishment prescribed for an offence under section 5(1) of the CYPA punishable under section 5(5) of the same, was a fine not exceeding $8,000 or to imprisonment for a term not exceeding 8 years or to both.[note: 29] The prescribed punishment envisages a wide spectrum of cases for which fines may even be appropriate. The case before me was not one such case; the width of sentence only emphasized the need to scrutinize the facts and circumstances of each case to determine the most appropriate sentence.

Public Prosecutor v GEC

21     The case precedents[note: 30] highlighted by the Prosecution assisted to give a flavour of the range of sentences which had been imposed in offences under the CYPA but were not particularly helpful.[note: 31] However, Prosecution relied on GEC as the foundation for their proposed sentencing range. Prosecution submitted that the aggravating facts in the present case justified a substantial uplift from the individual sentences imposed in GEC.[note: 32] As GEC was a case dealing with offences under section 5(1) CYPA charges, with one such offence having occurred after the increase in the maximum punishment prescribed, I found the case of GEC to be relevant in my consideration of the appropriate sentence.

22     The particulars of ill-treatment contained in each proceeded charge in GEC consisted of acts such as pulling of the hair, repeatedly slapping of the face, kicking and pinching the victim, pulling of the ears, dragging the victim by the hair, throwing the victim on the floor, kicking of the head and body, throwing a capped marker pen at the victim’s forehead et cetera[note: 33]. The offender in GEC received a sentence of eight to 10 months imprisonment on each of the seven proceeded charges (four other charges were taken into consideration). The imprisonment terms in four charges were ordered to run consecutively, with a global sentence of 36 months imprisonment.[note: 34] The individual sentences as well as the global sentence were upheld on appeal.

23     I agreed that an uplift from the sentence imposed in individual charges in GEC was necessary on the single charge proceeded on in this current case, given the nature and duration of the violence inflicted on the victim, amongst other factors. However, I did not think it should be of the length suggested by the Prosecution. The sentences imposed by the court in GEC on the individual charges would have factored in the aggravating aspects of the case[note: 35].

24     In my view, there were several highly aggravating facts in GEC:

a)     For one, the offender in GEC faced a total of 11 charges under section 5(1) of the CYPA. She pleaded guilty to seven charges and the remaining charges were taken into consideration for purposes of sentencing. Her offences were similarly captured on a CCTV;[note: 36]

b)     There were two vulnerable victims in GEC – both were daughters of the offender who were four and eight years old at the time of the first incidents in 2019;[note: 37]

c)     There was a history as well as pattern of abuse by the offender in GEC. Investigations revealed that beatings for the eight year-old began when she was in kindergarten (K1 or K2). The beatings worsened in 2018, when she was in Primary 1. The beatings included slapping her many times on her face, using a cane to hit her, kicking her and pulling her hair. These assaults would usually take place in the living room where the CCTV camera was installed. Sometimes, the offender would pull the daughter by her hair and drag her to the bedroom to continue the assaults away from the CCTV camera;[note: 38]

d)     The offender in GEC was recalcitrant. The abuse did not stop despite the intervention of the Child Protection Service on 22 August 2019 and the police investigations that began on 3 September 2019. She re-offended in 2021 while on bail and awaiting trial;[note: 39]

e)     There was no indication of remorse other than a guilty plea. As mentioned in GEC at [31], “she lacked remorse and sought to downplay her culpability while the matter was being investigated by the police”;

f)     The injuries suffered by one of the victims included a broken tooth.[note: 40]

25     The sentences of eight to 10 months imprisonment imposed on the individual charges in GEC would have taken into account these aggravating facts even though admittedly, the particulars contained in the individual charges in GEC were not as serious as the single charge proceeded on in this present case. The overall culpability and criminality of the offender in GEC, which I found to be higher than the Accused in the present case, would also have been reflected in the global sentence imposed in GEC. Whilst I fully agreed that the appropriate sentence in this present case should be one higher than the sentences imposed in individual charges in GEC, I did not think it warranted a sentence of the length sought for by the Prosecution.

26     A sentence higher than 10 months’ imprisonment would be appropriate, taking a reference point from the sentence imposed on the 9th charge in GEC (DAC 917824/2021). In this charge which offence occurred on 8 March 2021 (and thus invoked the application of the increased penalties under section 5(1) CYPA, following amendments to the Act), the offender had pulled the ear of her daughter (who had by then turned 10 years old), slapped her face, and used her finger to repeatedly hit her head and also hit her arm. The court in GEC imposed a sentence of 10 months’ imprisonment, noting that the offence was committed after the offender had been charged in court and was pending trial for the earlier offences. Two other offences were considered in sentencing.[note: 41]

27     I was of the view that a sentence of 13 months’ imprisonment would be appropriate, bearing in mind the gravity of the offence before me and the sentencing objectives in this case. This sentence was not inconsistent with case precedents even if at first glance, the sentence may seem inadequate when viewed against the sentences imposed on CYPA offences in Public Prosecutor v BDB [2018]1 SLR 127 (“BDB”) and Public Prosecutor v Firdaus bin Abdullah [2010] 3 SLR 225 (“Firdaus”) - cases highlighted by the Prosecution.

28     The cases of BDB and Firdaus may be differentiated. First, as pointed out by the Defence Counsel, there were aggravating factors in these cases. There was evidence of a pattern of abuse; in BDB, even after child protection services were involved. Sadly, the abuse in these cases also caused the death of the victims.[note: 42] Taking into account these aggravating circumstances, the sentences imposed in BDB and Firdaus were between 6 months to one year’s imprisonment.

Conclusion

29     The sentence of 13 months’ imprisonment adequately meets the sentencing considerations of deterrence and retribution whilst balancing the aggravating and mitigating factors in this present case. Taking into consideration the totality of the circumstances, 13 months’ imprisonment on a single charge under section 5(1) CYPA, was a fair sentence. It may not be described as manifestly inadequate.

30     What would truly be in the best interest of the victim from this point forward was for the Accused to serve out the sentence and thereafter to resume contact with the victim with safety protocols in place, and for them to work on re-building their relationship as mother and child. This was the heartfelt desire expressed by the Accused in her personal mitigation plea to the court.[note: 43]

31     The Accused is on bail, pending the Prosecution’s appeal.

[note: 1]MAC 903165/2022

[note: 2]Medical Reports dated 3 Jan 2022 and 9 May 2023

[note: 3]Medical Report dated 5 October 2022

[note: 4]Notes of Evidence, 30 May 2024, 23/6-10

[note: 5]Statement of Facts

[note: 6]Medical Report from KK Women and Children’s Hospital dated 12 June 2020

[note: 7]Prosecution’s Sentencing Position, [1]

[note: 8]Prosecution’s Sentencing Position, [7]

[note: 9]Prosecution’s Sentencing Position, [8]

[note: 10]Prosecution’s Sentencing Position, [9]

[note: 11]Prosecution’s Sentencing Position, [10]

[note: 12]Prosecution’s Sentencing Position, [11]

[note: 13]Prosecution’s Sentencing Position, [12]

[note: 14]Prosecution’s Sentencing Position, [13]

[note: 15]Defence’s Mitigation Plea

[note: 16]Defence’s Mitigation Plea, [23]-[24]

[note: 17]Prosecution’s Address on Sentence, [11]

[note: 18]Prosecution’s Address on Sentence, [6] – [11]

[note: 19]Prosecution’s Address on Sentence, [7]

[note: 20]Prosecution’s Address on Sentence, [8]

[note: 21]Prosecution’s Address on Sentence, [9]-[10]

[note: 22]MAC 903165/2022 – TIC charge

[note: 23]Prosecution’s Address on Sentence, [13]

[note: 24]Defence’s Mitigation Plea, [24]

[note: 25]Defence’s Mitigation Plea, [8]

[note: 26]Prosecution’s Address on Sentence, [14]

[note: 27]Defence’s Mitigation Plea, [22]

[note: 28]Prosecution’s Address on Sentence, [8]

[note: 29]Children and Young Persons Act, Cap 38, 2001 Rev Ed, as of 11 May 2020

[note: 30]Prosecution’s Address on Sentence, [23]-[29]

[note: 31]Prosecution’s Address on Sentence, [22]

[note: 32]Prosecution’s Address on Sentence, [19]; [30]-[33]

[note: 33]Public Prosecutor v GEC, [7]

[note: 34]Public Prosecutor v GEC, [50]

[note: 35]Public Prosecutor v GEC, [27];[44]

[note: 36]Public Prosecutor v GEC, [3]

[note: 37]Public Prosecutor v GEC, [2], [7]

[note: 38]Public Prosecutor v GEC, [13]

[note: 39]Public Prosecutor v GEC, [31]

[note: 40]Public Prosecutor v GEC, [18]

[note: 41]Public Prosecutor v GEC, 10th and 11th charges

[note: 42]Notes of Evidence, 2 August 2024, 6/1-15

[note: 43]Notes of Evidence, 2 August 2024, 8/16-9/9

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Public Prosecutor v Lim Kai Heng
[2024] SGDC 247

Case Number:District Arrest Case Nos. 916267 of 2022 & others
Decision Date:18 September 2024
Tribunal/Court:District Court
Coram: Jill Tan
Counsel Name(s): Colin Ng (Attorney-General's Chambers) for the Public Prosecutor; Raphael Louis (Ray Louis Law Corporation) for the accused.
Parties: Public Prosecutor — Lim Kai Heng

Criminal Procedure and Sentencing – Sentencing – Sentencing framework – Section 354(2) Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Sentencing framework – Sections 377BK(1) and 377BK(2) Penal Code 1871

Criminal Procedure and Sentencing – Sentencing – Section 337(a) Penal Code 1871

18 September 2024

District Judge Jill Tan:

Introduction

1       A key question that arose in this case was whether caning should be imposed on an offender who had outraged the modesty of a child although he did not touch her private parts, and whether caning should be imposed on him for possession of child abuse material on account of some of its content depicting cruelty and physical abuse. On the facts of this case, I answered these questions in the affirmative. These are the grounds of my decision, which incorporate and supercede the oral remarks I made in sentencing.

Facts

2       The accused faced five charges. He pleaded guilty to three, with two taken into consideration for the purpose of sentencing (“TIC”). The charges he pleaded guilty to, the facts that he admitted to, and the charges that were TIC are summarised below.

First proceeded charge: DAC 9162671/2022 (1st charge)

3       The first proceeded charge was under s 354(2) of the Penal Code 1871 (“PC”), for outraging the modesty of a person under the age of 14 (“aggravated outrage of modesty”).

4       On 17 October 2022, at about 5 pm, the accused was walking around a housing estate when he heard sounds of merriment. He followed the sounds and came to a corridor which housed the flat in which the victim (then aged eight) and her sister (then aged five) lived. The accused noticed them playing in the flat and became sexually aroused at that sight. The victim noticed the accused peeping into the flat, and walked towards the window, thinking he was a deliveryman. The accused walked away and towards the lift lobby, near the staircase landing. He then began to masturbate. The victim, who had by then left her flat to follow the accused down the corridor, noticed him rubbing and stroking his exposed penis. When he accused saw the victim, he used his free hand to hold on to her right hand, while continuing his masturbation with his other hand in the victim’s presence, until he ejaculated on the floor. At this time, the victim’s sister shouted for her, and she managed to break free from the accused’s grasp. She ran home, and the accused ran away. Her mother subsequently called the police, and the accused was arrested at his residence the next day.

Second proceeded charge: DAC 915354/2023 (4th charge)

5       On the day of his arrest, the accused’s residence was raided and it was discovered that he possessed various electronic devices containing adult pornography, child abuse material and photographs of young children clad in swimming costumes at public swimming pools. The electronic devices contained 306 video files and 313 images, all of which were examined by the Info-Communications Media Development Authority and classified as obscene. Of these, 11 video files and 125 still images depicted children engaging in a sexual pose or sexual activities and/or depicted the genital and/or breasts of female children, where the depiction was sexual and offensive. Of the 11 video files, the faces of at least four children in four video files were fully, largely or partially visible. Of the 125 images, 30 were sampled, in which there were 24 in which the faces of at least 37 children were fully, largely or partially visible. The accused knew that these were child abuse material and had downloaded these from the internet for his own viewing.

6       His possession of these materials gave rise to the second proceeded charge, which was under s 377BK(1) punishable under s 377BK(2) of the PC.

Third proceeded charge: DAC 915355/2023 (5th charge)

7       The third proceeded charge was under s 337(a) of the PC, for doing a rash act to endanger the personal safety of others, by throwing a plastic cup filled with water from a fifth-floor unit to the ground floor, thereby causing bodily pain to a passer-by as the cup struck him in the neck. This occurred in August 2022.

Charges taken into consideration for the purpose of sentencing

8       The two charges which the accused consented to be TIC were as follows:

(a)     An amalgamated charge under s 336(a) of the Penal Code (Cap 224, 2008 Rev Ed) read with s 124(4) and 124(8)(a)(ii) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), for throwing various glass objects from a unit on the nineteenth floor of a block of flats onto the ground floor, in the period between 5 June 2020 and 14 September 2020; and

(b)     A charge under s 30(1) of the Films Act 1981 (“Films Act”) for possession of 295 obscene films on 18 October 2022.

Matters Relating to Sentencing

Prescribed penalties

9       The punishments that the accused faced were as follows:

(a)     For the offence of aggravated outrage of modesty, he was liable to be punished with imprisonment of up to five years, or with fine, or with caning, or with any combination of such punishments.

(b)     For the possession of child abuse material, he was liable to be punished with imprisonment of up to five years and was also liable to a fine or to caning.

(c)     For the rash act endangering the personal safety of others, he was liable to be punished with imprisonment of up to one year, or with a fine of up to $5,000, or with both.

Accused’s background

10     The accused had no antecedents but was found by the Institute of Mental Health to have paedophilia, which was “ego-dystonic” for him, which meant that he experienced distress about his sexual preference. He was about to turn 23 years old as at the time of the offences in the proceeded charges.

Prosecution’s submissions on sentence

11     The prosecution sought the following sentences:

(a)     For the first proceeded charge: at least 12 months’ imprisonment and three strokes of the cane;

(b)     For the second proceeded charge: 21 to 25 months’ imprisonment and three strokes of the cane; and

(c)     For the third proceeded charge: a starting sentence of six to 10 weeks’ imprisonment and with an appropriate uplift left to the court.

12     The prosecution also submitted that the sentences for the first and second proceeded charges should run consecutively, such that the total punishment should be 33 to 36 months’ imprisonment and six strokes of the cane.

13     The prosecution’s main bases for this submission were the need for deterrence and retribution.

Mitigation and defence’s submissions on sentence

14     The defence sought the following sentences:

(a)     For the first proceeded charge: eight months’ imprisonment with no caning;

(b)     For the second proceeded charge: 10 months’ imprisonment with no caning; and

(c)     For the third proceeded charge: three weeks’ imprisonment.

15     The defence submitted that the imprisonment terms for the second and third proceeded charges should run consecutively, for a total of 10 months and three weeks’ imprisonment.

16     The main mitigating factors cited were that following the commission of the offence for aggravated outrage of modesty, the accused had sought treatment for his paedophilia. He had also co-operated with investigations, and was extremely ashamed and remorseful. His youth and clean record were also highlighted, as was the fact that the outcome of the present proceedings would have a detrimental effect on his future employment prospects.

Victim Impact Statements

17     The prosecution filed victim impact statements from the victim of the aggravated outrage of modesty, and from her mother. The victim stated that since the incident, she had difficulty sleeping and often had to cry herself to sleep. She had nightmares that the accused was doing the act to her again and she would wake up crying. Since the incident, she is also afraid of men who are strangers and no longer trusts men, except for her father and relatives. She is now ten years old.

18     The victim’s mother confirmed the victim’s nightmares and difficulty sleeping after the incident. She added that the victim needed to go for counselling after the incident and became quieter than she used to be. The victim also asked her mother “why God chose her to be [the] victim of such an offence.” She sought to explain to her daughter that “God had chosen her because she was brave enough to face through this”, and since she was able to identify the accused, she had indirectly prevented him from doing the same to other children.

Decision on Sentence

19     As the three proceeded charges are different and have different sentencing considerations, I will refer to the relevant case law separately below.

First proceeded charge – aggravated outrage of modesty

20     For the charge of aggravated outrage of modesty, it was not disputed that the sentencing framework in GBR v Public Prosecutor [2018] 3 SLR 1048 (“GBR”) applied. In that case, the High Court set out a two-step sentencing framework.

(a)     First, the court is to identify which band the offence falls in, having regard to offence-specific factors (GBR at [28] to [30]). These include:

(i)       the degree of sexual exploitation, including the part of the victim’s body the accused touched, how the accused touched the victim, and the duration of the outrage of modesty;

(ii)       the circumstances of the offence, including any premeditation, use of force or violence, abuse of a position of trust, use of deception, aggravating acts accompanying the outrage of modesty, and the exploitation of a vulnerable victim; and

(iii)       the harm caused to the victim, whether physical or psychological.

Where two or more of these aggravating factors present themselves, the case will almost invariably fall within Band 2 (GBR at [33]), and cases involving skin-to-skin touching of the victim’s private parts or sexual organs would fall within the higher end of this band, while cases that do not involve skin-to-skin contact with the private parts would fall in the lower end of this band. Once the relevant band has been identified, the court should then determine where in that range the offence falls, to derive an indicative starting point.

(b)     Second, the court then considers the offender-specific factors, that is, the aggravating and mitigating factors personal to the offender, to calibrate his appropriate sentence (GBR at [39]).

21     While parties agreed that this case fell within Band 2, the prosecution submitted that the case fell in the middle of the range, while the defence contended that it fell at the lowest end of the range.

22     For reference, I noted that Band 1 comprises cases which do not present any (or at most one) of the offence-specific aggravating factors. Thus, it would include cases that involve a fleeting touch or a touch over the victim’s clothes, and do not involve intrusion into the victim’s private parts (see GBR at [32]).

Analysis

(1)   Step 1: Offence-specific factors

23     In terms of the degree of sexual exploitation, although the accused did not touch the victim’s private parts, there was skin-to-skin contact and it was not fleeting.

24     As for the circumstances of the offence, there was no premeditation, abuse of position of trust or deception. However, the victim, at the tender age of eight, was undeniably vulnerable. The accused also gripped her hand tightly during the episode such that her ordeal ended only when she managed to break free from his grasp. There was thus a use of force for a period of time that could not be described as short, and this was an aggravating factor.

25     Concerning the harm caused to the victim, while there was no indication of physical harm, the psychological harm in terms of the lasting trauma that she now suffers cannot be understated. Counsel for the accused submitted that there was no clinical diagnosis of the victim’s condition. Nevertheless, based on her victim impact statement and that of her mother’s, this incident clearly scarred her. She had trouble sleeping, had nightmares and woke up crying, needed to undergo counselling, and is now afraid of male strangers. She even asked her mother why God chose her to be the victim of such an offence – surely a question a child should never have to encounter. It was fortuitous that the victim’s mother had the wisdom to frame the incident in a positive light and explain it to the child in terms of her role in helping to catch an offender, which perspective it can only be hoped the victim will come to understand in time.

26     Given the number of aggravating factors that existed, I agreed with the parties that this case fell within Band 2. Since a Band 1 case would be one in which at most one of the aggravating factors existed (as noted at [20(a)] above), this would mean that to fall on the lowest end of Band 2, this case would need to be a “borderline” Band 1 case. In my view, it was clearly not borderline, and I disagreed with the defence that this case fell at the bottom of Band 2. I agreed with the prosecution that this offence fell within the middle of Band 2. Since the sentencing range for Band 2 is one to three years’ imprisonment, I pegged the starting point sentence at no less than 18 months’ imprisonment. This was slightly below the mid-point of the range, since the accused did not touch the victim’s private parts.

(2)   Step 2: Offender-specific factors

27     The strongest offender-specific factor in the accused’s favour was his plea of guilt, as this saved the victim from having to testify in court. While I noted that the accused sought treatment for his paedophilia and I accepted that this was a demonstration of remorse for his actions as well as a willingness to overcome his condition, I also noted that he sought treatment only after this incident. Crucially for his victim, this was too little, too late. I therefore declined to put much weight on this factor. However, I granted him the full 30% sentencing discount for his guilty plea, which brought his sentence to just over 12½ months’ imprisonment.

(3)   Caning

28     Counsel submitted that no caning should be imposed on the accused because he did not intrude into the victim’s private parts. The High Court (in GBR at [31]) held that the starting point is caning where a victim’s private parts are intruded upon. However, this did not mean that if the offence did not involve touching a victim’s private parts, then there would be no caning, for the High Court held that caning “should also be imposed if the facts and circumstances of the case warrant this as an additional deterrent”.

29     I agreed with the prosecution that the sentence to be imposed on the accused had to reflect the public disapprobation of such acts against young children, and that the key sentencing considerations were general deterrence and retribution. It needed to be made clear to the accused and any like-minded persons that perpetrating such acts on a child simply cannot be tolerated. In this regard, while his offence was not premeditated, his impulsive sexual offending was egregious, because it showed his inability to control his urges. In the present case, he was drawn to the sounds of merriment, saw two little girls playing, and was sexually turned on. He then gave in to his tendencies, and when approached by a curious child, grabbed hold of her while he was masturbating. He thus moved from watching child pornography videos and looking at images, to acting on his paedophilic urges in person with a child.

30     My view was that this was an escalation in his offending conduct and showed that he did pose a threat to the safety of children whom he might encounter. In the circumstances, my view was that this case was an appropriate one to impose caning in addition to the imprisonment term, as a deterrent. However, since he was a first offender in this regard, my view was that two strokes, instead of the three sought by the prosecution, would be sufficient.

31     Relying on a news report of an offender who had made his daughter perform an indecent act on him and who had been charged under the Children and Young Persons Act 1993 (“CYPA”), counsel also submitted that if a separate charge had been imposed under the CYPA for the accused’s obscene act, then it might have been the case that caning would likely not be imposed for the aggravated outrage of modesty. On the basis that the two resultant imprisonment terms might then have been ordered to run consecutively, counsel sought a higher imprisonment term for the accused instead of caning. I declined to equate the accused’s case with that of other offenders who faced different charges, not least because the circumstances under which they came to be charged were not known. I therefore declined to speculate on what the result might have been if the accused had faced different charges, as my task was to sentence him for the charges that he faced, based on the facts before me.

32     On DAC 916267/2022, for the offence of aggravated outrage of modesty, I therefore sentenced the accused to 12 months’ imprisonment and two strokes of the cane.

Second proceeded charge – possession of child abuse material

33     For the charge for possession of child abuse material, it was not disputed that the applicable sentencing framework was that in Public Prosecutor v Randy Rosigit [2024] SGHC 171 (“Randy Rosigit”). In that case, the High Court adopted the two-stage, five-step sentencing framework from Logachev Vadislav v Public Prosecutor [2018] 4 SLR 609.

34     Broadly, the first stage required the court to consider the offence-specific factors while the second stage required the court consider the offender-specific factors. Under the first stage, Step 1 of the framework required the court to identify the level of harm based on the nature of the acts in the child abuse material, and also decide on the accused’s culpability relative to the offence. Steps 2 and 3 of the framework then required the court to identify an indicative sentencing range and appropriate starting point based on the harm and culpability factors. Under the second stage, Step 4 required the court to consider the offender-specific aggravating and mitigating factors in further adjusting the sentence as necessary, while Step 5 required the court to make any final adjustments based on the totality principle.

35     The types of harm in such cases were noted by the High Court to generally refer to the harm to the children involved in the child abuse material, and a wider “market-making harm”. The factors to be considered included (Randy Rosigit at [51]):

(a)     The type/nature of acts that were depicted in the child abuse material;

(b)     The number of different children depicted in each item of child abuse material;

(c)     The quantity of child abuse material possessed;

(d)     The age of the children in the child abuse material;

(e)     The type of media (whether video or images) and the length of the media; and

(f)     The degree of identifiability of the children.

36     The scale of harm then could be categorized into four levels, in increasing grades of seriousness (Randy Rosigit at [44]):

(a)     Level 1: the child is in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity.

(b)     Level 2: the child is engaged in, or apparently engaged in, a sexual pose (whether or not in the presence of another person) – this includes material that depicts an image of the genital region, buttocks or breasts where the depiction is sexual and in circumstances which a reasonable person would regard as offensive.

(c)     Level 3: the child is engaged in, or apparently engaging in, a sexual activity (whether or not in the presence of another person).

(d)     Level 4: the child is a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual).

37     As for the factors going towards culpability, these were (Randy Rosigit at [51]):

(a)     The degree of planning, preparation, premeditation and sophistication by the offender;

(b)     The offender’s attempts to conceal behaviour;

(c)     The offender’s participation in a network;

(d)     The duration and persistence of the offending behaviour; and

(e)     The offender’s motive.

38     The relevant sentencing matrix was as follows (Randy Rosigit at [54]):

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39     As for the offender-specific factors, the aggravating factors included TIC offences, while the mitigating factors included co-operation with the authorities, psychological factors with a causal link to the commission of the offence, and genuine remorse (Randy Rosigit at [57]).

Analysis

(1)   Step 1

40     In terms of the harm caused, I noted the following:

(a)     First, that the quantity of child abuse material possessed, at 125 still images and 11 videos, was not as high in comparison to other cases in which over a thousand videos were found (eg, PP v Chong Xuan Ming, unreported, as cited by the defence, and addressed further below at [51]). That said, this number was certainly not low or negligible.

(b)     Second, the type and nature of the acts shown in much of the material was minimally Level 3 harm. As pointed out by the prosecution, in nine out of the 11 videos, the children were engaged in penetrative sexual activities. Out of the sampling of 30 images, at least a third showed the children engaging in sexual activity. Of these, one involved a child with her hands tied behind her back, and one with her hands taped to her legs while an object was being inserted into her vagina. Most disturbingly, one of the videos involved the child screaming in pain during penile-vaginal penetration. I classified these latter two clips as demonstrating Level 4 harm in their cruelty and physical abuse.

(c)     Third, in terms of the number of different children depicted, the faces of least four different children could be seen in the videos, while there were at least 37 different children visible in 24 images.

(d)     Fourth, the type of media involved were stills and videos, with the shortest video being seven seconds, and the longest being one minute and 59 seconds.

(e)     Fifth, the age of the children involved in the materials went as low as four years old, with many involving children aged between six to nine, and generally under 16.

(f)     Sixth, the faces of no less than 31 children were clearly identifiable in the images and videos.

41     Bearing these in mind, I agreed with the prosecution that the harm caused crossed the threshold from moderate into severe, and disagreed with the defence that the harm caused was only moderate. That said, my view was that the case fell at the bottom end of the severe band, since there clearly are cases in which the child abuse material depicts worse acts of cruelty or abuse (which are addressed below at [51]).

42     In terms of the accused’s culpability, since he simply possessed these images and videos for his own viewing and masturbated to them, I agreed with both parties that his culpability would be considered low.

(2)   Steps 2 and 3

43     Since my view was that the harm in this case was severe and culpability was low, this meant that based on the sentencing matrix, the sentencing range was 24 to 36 months’ imprisonment with the option of caning.

44     On balance, since I put the harm at the bottom end of the severe band, my view was that the starting point for the accused’s sentence would be at the bottom end of this range, that is, 24 months’ imprisonment, with the option of caning.

(3)   Step 4

45     As for the offender-specific factors, once again, the strongest mitigating factor was the accused’s guilty plea. However, I declined to grant him the full measure of the sentencing discount due to the TIC charge under the Films Act. That said, I disagreed with the prosecution that this TIC charge and the accused’s paedophilia justified an uplift of six months’ imprisonment, as this figure did not seem have a principled basis.

46     Therefore, from the starting point of 24 months, a slightly reduced sentencing discount (of about 25%) would bring the accused’s sentence to 18 months’ imprisonment.

(A)   Delay

47     Counsel also submitted that the accused should be granted a further sentencing discount because his guilty plea had initially been fixed for December 2023 but was delayed until August 2024. The postponement was because the prosecution was awaiting the High Court’s decision in Randy Rosigit.

48     The matter of whether a sentencing discount may be granted on account of a delay was recently addressed by the High Court in Wong Poon Kay v Public Prosecutor [2024] SGHC 91 (“Wong Poon Kay”), and the applicable principles were restated therein at [66] to [69]. In short, a discount in sentencing is granted only where there is an inordinate delay, that is, a delay that is unusually long and not explicable by reasonable grounds. In this regard, the delay is not measured in terms of the absolute length of time that has passed, but must be assessed in the context of the case. The delay must also cause the accused to suffer unfair prejudice as a result.

49     In the present case, the delay was to await relevant guidance on sentencing from the High Court, which was held in Wong Poon Kay (at [82] to [84]) to be a valid ground for a delay. In any event, my view was that eight months in the present context was not long, even in absolute terms. Given that the accused was on bail during that time in any event, I was unable to see how such a delay caused him to suffer unfair prejudice. I therefore disagreed that there was an inordinate delay in this case that would justify further reducing the accused’s sentence.

(B)   Caning and unreported precedents

50     Counsel also referred the court to some recent cases which he submitted had factual scenarios which “were worse” than the accused’s and for which there were more videos containing the child abuse material, but for which no caning was imposed. The prosecution also did not appeal against those decisions. Counsel thus submitted that for fairness and consistency, caning should not be imposed on his client. I directed the prosecution to file copies of the charges and statements of facts in those cases, and I reviewed the facts and the sentences imposed. Unfortunately, none of them involved a reported decision. These cases were PP v Chong Xuan Ming (as mentioned above) PP v Liew Yih Fui (unreported) and PP v Wang Dian (unreported). It was therefore unclear what factors were considered by the district judges in arriving at their decisions, and what aspects of the cases weighed on their minds.

51     Suffice to say that in the worst of the cases in terms of the quantity and nature of child abuse material, PP v Chong Xuan Ming, which involved 807 images and 3,149 videos, and in which some videos contained what I considered to be Level 4 harm (involving the use of a needle to poke the child’s nipple and a knife to cut her nipple), it was my view that the sentence of 18 months’ imprisonment without caning was lenient. In comparison, I noted that PP v Liew Yih Fui, which involved 752 videos containing what I regarded as mostly Level 3 harm and one involving Level 4 harm (as it concerned bestiality), the offender was sentenced to 21 months’ imprisonment without caning. Given the variations in the sentences and the absence of reasoned decisions, I did not consider myself constrained to necessarily impose a lighter sentence than in these precedents.

52     Returning to the matter of whether caning should be imposed on the accused for this offence in addition to his imprisonment term, as noted above, my view was the sentence had to signal public disapprobation of sexual offences against young children. As noted by the High Court in Randy Rosigit (at [47]), the consumption of child abuse material is pernicious, and a firm stance must be taken against it, because if not for the consumers of such material, there would be no market for those who abuse children by creating this material.

53     Given the number of videos and images found, the accused’s interest in child abuse material was also clearly more than merely fleeting. Thus, I agreed with the prosecution that general deterrence had to be factored into his sentence, and that caning would be appropriate, bearing in mind that I found that the harm caused to the children in the materials was severe. Nevertheless, given the accused’s low culpability and my finding that the harm was in the lower end of the severe band, my view was that two strokes of the cane would be sufficient.

54     On DAC 915354/2023, for possession of the child abuse material, I therefore sentenced the accused to 18 months’ imprisonment and two strokes of the cane.

Third proceeded charge – rash act endangering the personal safety of others

55     The third proceeded charge was for causing hurt by a rash act that endangered the personal safety of others. As noted above, the accused threw a plastic cup filled with water out of a fifth-floor window, such that it hit a passer-by on his neck, causing him to suffer pain.

56     For this, the prosecution sought an imprisonment term of six to ten weeks, relying on Public Prosecutor v Lim Choon Teck [2015] 5 SLR 1395 (“Lim Choon Teck”). The defence argued that a three-week term would suffice.

Analysis

57     Counsel submitted that the prosecution’s reliance on Lim Choon Teck was misplaced, because the reference to a sentencing range of six to 10 weeks’ imprisonment for “killer litter” offences therein (at [11]) was merely the High Court stating what the district judge had noted in her grounds of decision. I agreed with counsel on this point, as it was not a clear case of the High Court affirming the sentencing range. I also agreed with counsel’s observation that the offences under s 336 and s 337 of the PC consist not only of the rash and negligent limbs, but also of acts that are done to endanger human life, or the personal safety of others. In this regard, as noted by the High Court in Lim Choon Teck at [29], the “personal safety” limb is ordinarily regarded as of lower culpability than the “endangering life” limb. I bore this gradation in mind when determining where to peg the starting point sentence.

58     There being few reported cases relied on by parties to guide the court in sentencing for this offence, I noted from the Sentencing Information and Research Repository that the average sentence for such offences was six to eight weeks’ imprisonment, while the median was four to six weeks’ imprisonment. Counsel cited Public Prosecutor v Tan Kwan Sin [2010] SGDC 196, in which a term of three weeks’ imprisonment was imposed after a reduction upon appeal. While this case was slightly dated, I accepted that the object thrown in that case, a piece of wood from a broken chair, arguably had greater potential to cause harm than the plastic cup filled with water in the present case. I did not regard the other precedents cited by counsel as of much assistance, they concerned a different offence (that under s 336(a) of the PC), with a much lower punishment.

59     All things considered, I pitched the starting point sentence for this case at no less than three weeks’ imprisonment. This was at the lower end of the known sentencing ranges, in part because the offence was framed as a rash act that endangered the personal safety of others, rather than one that endangered life. Bearing in mind that the accused had a TIC charge which also involved throwing items out the window, my view was that a slight uplift was necessary, and a sentence of four weeks’ imprisonment overall was appropriate. The accused was therefore so sentenced on DAC 915355/2023.

Consecutive sentences

60     Finally, on the matter of which imprisonment terms to run consecutively, my view was that it should be the terms for the two more serious offences. This was because they happened on different occasions and concerned different legally-protected interests, even if the victims were all children. I thus agreed with the prosecution on this point and disagreed with the defence.

61     I then considered whether I needed to further adjust the sentence for the offence of possession of child abuse material under step 5 of the Randy Rosigit framework to ensure that the accused’s total sentence was not crushing in totality.

62     Running the sentences for the aggravated outrage of modesty charge and the possession of child abuse material charge consecutively meant a total of 30 months’ imprisonment and four strokes of the cane. The maximum punishment for each of these offences was five years’ imprisonment and 12 strokes of the cane. Bearing in mind that it is not unusual to see sentences in terms of years rather than months for offences of aggravated outrage of modesty, my view was that this aggregate sentence could not be said to be substantially above the normal level of sentences for the most serious of the individual offences committed. While the sentence would certainly adversely affect the accused’s future prospects, my view was that this was a necessary result of his punishment for his acts, and could not be said to be crushing. I therefore did not make any further adjustment to the sentence for the charge for possession of child abuse material.

Conclusion

63     The accused’s total sentence was therefore 30 months’ imprisonment and four strokes of the cane. His imprisonment term was backdated to 18 October 2022, the day he was arrested, and it was ordered to exclude the period he was on bail (3 November 2022 to 22 August 2024).

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Public Prosecutor v Muhamad Farhan Bin Umar
[2024] SGMC 67

Case Number:Magistrate Arrest Case No 902510 of 2024 and 1 Other
Decision Date:19 September 2024
Tribunal/Court:Magistrate's Court
Coram: Lee Lit Cheng
Counsel Name(s): Lim Yi Neng, Ryan (Attorney-General's Chambers) for the Public Prosecutor; The Accused unrepresented.
Parties: Public Prosecutor — Muhamad Farhan Bin Umar

Criminal Procedure and Sentencing – Sentencing – Relinquishing own Singpass credentials – Section 8 Computer Misuse Act 1993

Criminal Procedure and Sentencing – Sentencing – Sentencing Advisory Panel Guidelines for Scams-Related Offences

19 September 2024

District Judge Lee Lit Cheng:

Background

1       The alarming prevalence of scam cases have become a major and fast-growing concern. Over the past five years, the number of reported scam cases have increased by more than seven-fold, and amounts lost to scams have quadrupled. The total amount of monies lost by scam victims in 2023 alone was $651.8 million.[note: 1]

2       Victims who fall prey to scams are often unable to recover their monies as the funds can be swiftly transferred via the Internet out of jurisdiction and beyond the reach of the local authorities. The money is often dissipated by the time a police report is lodged and action is taken to freeze the bank accounts which first received deposits from the victims.

3       Once the bank accounts are frozen by the authorities, scammers will need new bank accounts to receive funds from other victims. In other words, scammers use bank accounts like disposables, and they need to have a steady stream of new bank accounts to replace the discarded ones.

4       To evade detection and maintain anonymity, scammers acquire bank accounts by offering to “buy” or “rent” them from others in return for payment or other gains. Scammers also offer to “buy” or “rent” Singpass credentials which they can then use to open bank accounts to receive scam proceeds. Therefore, persons who cede control of their bank accounts or disclose their Singpass credentials to others play an important role in facilitating the receipt and laundering of crime proceeds by scammers.

5       To combat the growing menace posed by scams, Parliament introduced new offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and Computer Misuse Act 1993 (“CMA”) in 2023. The new CDSA and CMA offences which came into force on 8 February 2024 target a critical component of the operation of scam syndicates – persons in Singapore who hand over control of their bank accounts or who disclose Singpass credentials to others.[note: 2]

6       In August 2024, the Sentencing Advisory Panel of Singapore (“the Panel”) also issued Guidelines for Scams-Related Offences (“the Guidelines”) to provide guidance and clarity on how the new CDSA and CMA offences should be sentenced. The Panel comprises members from the Judiciary, the Ministry of Law, the Singapore Police Force, the Attorney-General’s Chambers, and the Bar. The Panel formulates and publishes guidelines on matters relating to sentencing, with the objective of promoting greater consistency, transparency and public awareness in sentencing. While guidelines issued by the Panel are not legally binding on any court, they are helpful in providing guidance to the courts in passing sentences. If a decision is made not to apply a relevant guideline, the court should provide reasons for that.

7       In relation to the unauthorised disclosure of one’s Singpass credentials, an offender may be prosecuted for the new offence under s 8A of the CMA or for the pre-existing offence under s 8 of the CMA. Both offences carry the same prescribed punishment for the first conviction, namely, a fine not exceeding $10,000 or imprisonment not exceeding three years or both.

The Charges

8       In the present case, the 36-year-old Accused pleaded guilty to a charge under s 8 of the CMA for disclosing his own Singpass credentials knowingly and without authority. Another charge under s 177(1)(a) of the Penal Code 1871 for falsely informing the police that he did not furnish his Singpass credentials to anyone else was taken into consideration for the purpose of sentencing (“the TIC charge”).

Brief Facts

9       In early 2023, the Accused received an advertisement via Telegram offering to pay him $500 for relinquishing his Singpass credentials. The Accused responded by providing the unknown sender his Singpass User ID, password, and one-time password. The unknown person deleted the chat between them, and the Accused did not receive any payment.

10     On 21 February 2023, the Accused’s Singpass account was used to set up a company and a bank account was opened for the company (“the Bank Account”). Between 25 February 2023 to 1 March 2023, a total sum of $132,577.57 was deposited into the Bank Account, and a total sum of $132,543.32 was withdrawn from it. The funds that flowed through the Bank Account included a sum of $30,000 deposited by a victim of scam who had lodged a police report.

11     When the Accused was called up for investigations on 3 May 2023, he falsely told the police that he had not shared his Singpass login details with anyone.

The Prosecution’s Submissions on Sentence

12     The Prosecution submitted that general deterrence was the dominant sentencing consideration given that the offences were committed in the context of a rising tide of scam cases. The offence committed by the Accused facilitated the control of scam proceeds by allowing scammers to swiftly dissipate their unlawful gains by transacting the gains through multiple bank accounts and placing them beyond the reach of the authorities. Individuals must therefore be prevented and deterred from acting as money mules by selling their bank accounts or Singpass login details to others.[note: 3]

13     The Prosecution submitted that the sentencing approach for s 8A CMA offences in the Guidelines should also apply to the charge under s 8 of the CMA in this case, given that both involve the same conduct and mischief. The prescribed punishment for both offences is also the same for the first conviction.

14     Applying the Guidelines, the Prosecution sought a sentence of at least seven to 8.5 months’ imprisonment.

Mitigation

15     The Accused sought leniency on the basis that he was the sole breadwinner and had committed the offence because he was facing financial difficulties and was desperate to earn money to provide for his family with young children. He said that he would not have accepted the offer if he had known that it was a scam. He also did not receive any benefit.

Decision on Sentence

16     In determining the appropriate sentence to be imposed for the present charge under s 8 of the CMA, I first considered whether the Guidelines relating to s 8A of the CMA were relevant.

Guidelines for s 8A CMA relevant to s 8 CMA

17     I agreed with the Prosecution that the Guidelines relating to s 8A of the CMA were relevant to the present charge under s 8 of the CMA.

18     The guidance pertaining to s 8A of the CMA are set out in the Guidelines at [23] to [33]. They relate to cases where the criminal act involved is the disclosure by an offender of his own Singpass credentials without taking reasonable steps to ascertain the identity of the recipient and purpose in which the Singpass credentials will be used (Guidelines at [25]).

19     Given that the criminal act involved, the mischief targeted and the prescribed punishment for the present offence under s 8 of the CMA are the same as the s 8A CMA cases covered by the Guidelines, I found that the Guidelines were also relevant and applicable in the present case.

Application of the Guidelines to s 8 CMA

Custodial sentences ought to be the norm

20     The Guidelines (at [7]) recommend that custodial sentences ought to be the norm for scams-related offences and the sentences must be punitive enough and commensurate with the harm suffered by scam victims.

21     Given the prevalence of scam cases, general deterrence was undoubtedly the key sentencing consideration, and a custodial sentence was clearly warranted in this case.

(1)   Starting sentence

22     The Guidelines (at [25]-[26]) recommend a starting sentence of six months’ imprisonment for a first-time offender convicted after trial of an offence under s 8A of the CMA in an archetypal case involving the following:

(a)     an offender who discloses his Singpass credentials without taking reasonable steps to ascertain the identity of the recipient and purpose in which the Singpass credentials will be used;

(b)     the disclosed Singpass credentials have not been used, eg, to open bank accounts; and

(c)     the offender did not have any intention to derive a gain from his act.

23     Taking guidance from the Guidelines, I was of the view that the same starting sentence of six months’ imprisonment was appropriate, if the Accused had claimed trial. Although the Accused was not a first offender, his antecedents relate to offences which were dissimilar to the present offence under s 8 of the CMA. I therefore did not find it necessary to go beyond the recommended starting sentence.

(2)   Apply uplifts for offence-specific aggravating factors

24     Next, the Guidelines provide that upward adjustments to the starting sentence should be made for the offence-specific aggravating factors in a case, including the following factors set out in [28]-[29] of the Guidelines:

(a)     Where the offender was motivated to commit the offence for personal gain, even if he did not receive the gain.

(b)     Where the offender disclosed his Singpass credentials knowing that it would be used to commit an offence (“predicate offence”), it would be more aggravating than only having reasonable grounds to believe that it would be so used.

(c)     If the predicate offence is committed, an uplift should be imposed.

(d)     If the disclosure of the Singpass credentials has led to the opening of bank accounts, the incorporation of companies, or the making of any claim for Government incentives and benefits. The extent of the uplift will depend on, among others, the number of bank accounts and/or companies created, the amount of Government incentives and benefits claimed for or disbursed.

(e)     If there is evidence that the bank accounts were created for money laundering purposes. The extent of the uplift should be commensurate with the amount of funds that had been received or flowed through these accounts. Where significant funds ($100,000 or more) had been received or transferred out of these accounts, an uplift of at least 25% of the starting sentence should be considered. This is so even if the offender does not know of the extent of funds that have flowed through these accounts.

(f)     Where actual harm or loss occurs as a result of the disclosure of the Singpass credentials.

(g)     Where the disclosure of the Singpass credentials has led to the creation of bank accounts for money laundering purposes, and the funds flowing through the bank accounts are linked to a victim of a scam who is a vulnerable person, namely, a person 65 years of age or older, or a person who, by reason of mental or physical infirmity, disability or incapacity, is substantially unable to protect himself from abuse, neglect or self-neglect. The extent of the recommended uplift is as follows:

(i)       If the offender knew that vulnerable persons were specifically targeted by the scams, an uplift of at least 50% of the starting sentence should be made.

(ii)       If vulnerable persons were affected by the scams (even if vulnerable persons were not specifically targeted and even if the offender did not know that vulnerable persons would be affected), an uplift of at least 25% of the starting sentence should be made.

25     Further, in the illustration at [32]-[33] of the Guidelines (“the Illustration”), an uplift of three months’ imprisonment was made for the fact that (1) the offender was motivated by gain to commit the offence; and (2) a bank account was opened as a result of the offender’s disclosure of his Singpass credentials. This works out to an average uplift of 1.5 months’ imprisonment (being 25% of the starting sentence of six months) for each factor.

26     In the present case, the Accused was motivated by gain to commit the offence. A company was also incorporated using the Accused’s Singpass credentials followed by the opening of a bank account for the company. Taking guidance from the extent of the uplift made in the Illustration, I found that a similar uplift of three months’ imprisonment was appropriate for these two factors.

27     Significant funds amounting to over $130,000 flowed through the Bank Account which was created for and used to launder scam proceeds. An uplift of 1.5 months’ imprisonment (being 25% of the starting sentence of six months’ imprisonment) was appropriate.

28     After adding the uplifts, the custodial sentence if the Accused had been convicted after trial would be 10.5 months’ imprisonment.

(3)   Consider offender-specific sentencing factors

29     In the final step, I considered the Accused’s plea of guilt and the TIC charge.

30     For his early plea of guilt, I applied the maximum 30% reduction in sentence as recommended for a Stage 1 plea of guilt in the Guidelines on Reduction in Sentences for Guilty Pleas published by the Panel. That brought the sentence down to 7.35 months’ imprisonment.

31     Taking into account the TIC charge, I sentenced the Accused to imprisonment for a term of seven months and two weeks,

Disgorgement fine, if applicable

32     The Guidelines (at [31]) also recommend that, in addition to a custodial sentence, an appropriate fine to disgorge the financial gains received by an offender from his offence ought to be imposed.

33     As the Accused did not receive any payment for relinquishing his Singpass credentials, no fine was ordered in this case.

Conclusion

34     Many have fallen prey to scams and suffered huge financial losses. It is particularly dire for the elderly who may have lost their life savings and are unable to recover the monies.

35     There is a compelling need to cut the supply of bank accounts to scammers by taking firm action against those who hand over control of their bank accounts or disclose their Singpass credentials to others and, in so doing, have facilitated the receipt and laundering of crime proceeds by scammers. The clear message to anyone who may be tempted by the promise of easy cash is that the punishment will be severe and it does not pay to engage in such criminal conduct.

36     All things considered, I was of the view that the sentence of seven months and two weeks’ imprisonment was appropriate and needful in the present case.

[note: 1]Press release dated 21 August 2024: Publication of Guidelines for Scams-Related Offences (“Press Release”)

[note: 2]Press Release

[note: 3]Prosecution’s Skeletal Submissions on Sentence, [3]

"},{"tags":["Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Consumption of specified drug","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of controlled drug","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of drug utensils","Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Trafficking of controlled drug"],"date":"2024-09-19","court":"District Court","case-number":"District Arrest Case No 912429 of 2023 & 6 Others","title":"Public Prosecutor v Ryan Hafiz Syah bin Razali","citation":"[2024] SGDC 245","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32177-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor","Lee Chuan/ Vadi PVSS (Public Defender's Office) for the Accused."],"timestamp":"2024-09-25T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ryan Hafiz Syah bin Razali

Public Prosecutor v Ryan Hafiz Syah bin Razali
[2024] SGDC 245

Case Number:District Arrest Case No 912429 of 2023 & 6 Others
Decision Date:19 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor; Lee Chuan/ Vadi PVSS (Public Defender's Office) for the Accused.
Parties: Public Prosecutor — Ryan Hafiz Syah Bin Razali

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Consumption of specified drug

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of controlled drug

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Possession of drug utensils

Criminal Law – Statutory Offences – Misuse of Drugs Act 1973 – Trafficking of controlled drug

19 September 2024

District Judge Paul Quan:

Introduction

1       By way of background, I first set out the:

(a)     brief facts of the case;

(b)     charges and their prescribed punishments; and

(c)     parties’ positions and my decision.

Brief facts

2       The accused, Ryan Hafiz Syah Bin Razali (“Mr Ryan”), a 31-year-old Singaporean, was caught selling methamphetamine to an undercover Central Narcotics Bureau (“CNB”) officer. A few days earlier, he had also sold methamphetamine to the same officer. During a subsequent house raid following his arrest, Mr Ryan was found to be in possession of:

(a)     methamphetamine for the purposes of personal consumption and trafficking;

(b)     MDMA; and

(c)     drug utensils.

His urine samples were also taken, which later tested positive for methamphetamine.

Charges

3       Mr Ryan has pleaded guilty to four charges under the Misuse of Drugs Act 1973 (2020 Rev Ed) (“MDA”) of unauthorised:

(a)     trafficking of a controlled drug, methamphetamine, under section 5(1)(a) MDA (“trafficking charge”);

(b)     consumption of a specified drug, methamphetamine, under section 8(b)(ii) MDA (“consumption charge”);

(c)     possession of a controlled drug, methamphetamine, under section 8(a) MDA (“possession charge”); and

(d)     possession of drug utensils under section 9 of the MDA (“possession of drug utensils charge”).

4       He has also consented to have another three similar charges under the MDA taken into consideration for the purpose of sentence (“TIC”). These relate to unauthorised:

(a)     trafficking of a controlled drug, methamphetamine, under section 5(1)(a) MDA;

(b)     possession of a controlled drug, methamphetamine, for the purpose of trafficking under section 5(1)(a) read with section 5(2) MDA; and

(c)     possession of a controlled drug, MDMA, under section 8(a) MDA.

Prescribed punishment

5       For drug trafficking, section 33(1) MDA prescribes a mandatory minimum sentence of five years’ and five strokes of the cane.

6       By virtue of his two previous drug rehabilitation centre admissions in 2017 and 2019, Mr Ryan is subject to Long Term-1 (“LT-1”) enhanced punishment for drug consumption under section 33A(1) MDA, which prescribes a mandatory minimum sentence of five years’ imprisonment and three strokes of the cane.

7       As for drug possession and possession of drug utensils, the maximum punishments prescribed by section 33(1) MDA are ten years’ imprisonment and/or fine of S$20,000; and three years’ imprisonment and/or fine of $10,000 respectively.

Parties’ positions

8       The prosecution has sought to impose a global sentence of six years’ six months’ imprisonment and eight strokes of the cane on Mr Ryan. The defence has submitted six years’ two months’ imprisonment and eight strokes of the cane.

9       The parties agree on the individual sentences to be imposed on each charge and only part ways on how the sentences are to run. Except for the sentence on the consumption charge that is to run concurrently, the prosecution has asked for the sentences on the remaining three trafficking, possession and possession of drug utensils charges to run consecutively. The defence has asked for only two sentences on the trafficking and possession charges to run consecutively instead.

Court’s decision

10     I sentence Mr Ryan to six years’ six months’ imprisonment and eight strokes of the cane. I set out the reasons for my decision.

Issues to be decided

11     There are two main issues I have to decide in this case.

Length of individual custodial sentences and how they should run

12     The first issue is whether I agree with the individual sentences put forth by the parties. The second is how these individual sentences are to run.

13     I resolve the issues in this way:

(a)     I agree with the individual sentences as proposed by the parties; and

(b)     I agree with the prosecution that I should run the sentences on the trafficking, drug possession and possession of drug utensils charges consecutively, with the remaining sentence on the consumption charge to run concurrently with the other sentences.

Analysis of issues

14     I preface the analysis of the issues by reiterating that the operative sentencing consideration for drug offences is unequivocally deterrence; because of the harm inflicted on the individual offenders and society at large, it cannot be gainsaid that the price that must therefore continue to be paid is eternal vigilance in the form of deterrent sentencing: PP v Jeon Suji [2024] SGDC 209 at [12].

15     I analyse the issues in turn.

Issue 1(a): Sentence of five years’ six months’ imprisonment and five stokes of cane on trafficking charge

16     The parties have submitted that the sentence on the trafficking charge ought to be five years’ six months’ imprisonment and five strokes of the cane. I agree.

Starting point sentence range from five to six years’ imprisonment and five to six strokes of cane

17     The proper starting point in determining the appropriate sentence for the trafficking charge is the quantity of methamphetamine trafficked: Loo Pei Xiang Alan v PP (“Alan Loo”) [2015] 5 SLR 500 at [13]. Given the very small quantity of 0.27g of methamphetamine, and applying the “exchange rate” between diamorphine and methamphetamine in Alan Loo at [17] so as to apply the indicative starting points in Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [47], the equivalent quantity of diamorphine would reside within the lowest end of the lowest band encompassing quantities under 3g. This would mean that the applicable starting point sentence for trafficking 0.27g of methamphetamine would range from five to six years’ imprisonment and five to six stokes of the cane.

Starting point sentence of five years’ three months’ imprisonment and five strokes of cane

18     Mr Ryan’ culpability is higher as he was motivated by financial gain to commit the offence. First-time traffickers are likely to have diverse motivations such that it would be meaningful to distinguish between those who are profit- driven and those who are not: Alan Loo at [27]. As such, I determine the starting point sentence to be five years’ three months’ imprisonment and five strokes of the cane.

Upward adjustment of three months’ imprisonment to starting point sentence

19     I then consider the further adjustments to be made to the starting point sentence to take into account offender-specific aggravating and mitigating factors.

20     The presence of similar TIC charges, one of trafficking and the other of possession for the purpose of trafficking, is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. The TIC charge of trafficking is particularly egregious because it represents the second occasion where Mr Ryan sold drugs to the same undercover CNB officer over a short span of merely four days. Together with the separate TIC charge of drug possession for the purpose of sale, this shows a pattern of criminal activity that suggests deliberate rather than causal involvement in drug trafficking: UI at [37]. I therefore apply an upward adjustment of three months’ imprisonment to the starting point sentence.

21     As the defence rightly conceded, entrapment is not a defence. By extension, the fact that trafficking occurred in the context of multiple entrapments is quite irrelevant. That Mr Ryan should not have been lured (if at all) to traffic drugs by the second entrapment is no answer to the simple point that he ought to have known better and should not have trafficked in drugs at all, much less a second time even when such an opportunity presented itself. The fact that Mr Ryan had drugs in his possession for sale and also drug utensils for this purpose militates against the argument that he would not have trafficked in drugs but for the opportunities that the two occasions of entrapment had afforded him to do so.

22     It is trite that any financial hardship that drove Mr Ryan to traffic in drugs is generally of little or no mitigatory value; it was also not suggested that he was experiencing exceptional or extreme hardship arising out of genuinely desperate needs and times. In the absence of Mr Ryan extending his cooperation beyond his confession, his cooperation with the authorities does not carry strong mitigatory weight since the case is often overwhelmingly against drug traffickers because of the operative presumptions: Vasentha d/o Joseph v PP [2015] 5 SLR 122 at [73]. Although Mr Ryan’s guilty plea carries mitigatory weight, the sentence cannot be reduced below the mandatory minimum sentence on account of it. Instead, I have factored this into my calibration of the overall sentence for the trafficking charge.

23     The final sentence for the trafficking charge is therefore five years’ six months’ imprisonment and five strokes of the cane.

Issue 1(b): Sentence of five years’ imprisonment and three stokes of cane on consumption charge

24     The parties have submitted that the sentence on the consumption charge ought to be five years’ imprisonment and three stokes of the cane. I too agree.

Starting point sentence of five years’ imprisonment and three stokes of cane

25     The starting point sentence for an LT-1 consumption charge is the statutorily prescribed minimum punishment of five years’ imprisonment and three strokes of the cane.

No adjustment to starting point sentence necessary

26     Other than those that form the basis for the enhanced LT-1 punishment, Mr Ryan has a similar but dated antecedent for drug consumption more than a decade ago in 2012 when he was 19. He was also placed under drug supervision in 2015. He is obviously not a first-time drug user; in fact in relation to the present drug consumption, he had admitted to smoking methamphetamine two to three times a week, though the circumstances leading to the offence was that he took drugs to relieve stress due to his unemployment. His records show that his last drug use was in 2019 and he had stayed drug free till 2023.

27     On balance, I do not find it necessary to make any upward adjustment to the starting point sentence and the final sentence on the consumption charge is therefore the minimum prescribed punishment of five years’ imprisonment and three strokes of the cane. Likewise, the sentence cannot be reduced below this mandatory minimum sentence on account of his guilty plea, but I have factored this in my considerations when deciding not to make any upward adjustment to the starting point sentence.

Issue 1(c): Sentence of eight months’ imprisonment on possession charge

28     The parties have submitted that a sentence of eight months’ imprisonment should be imposed on the possession charge. Again I agree.

Starting point sentence of six to 18 months’ imprisonment

29     The starting point sentence for a first offender possessing a small quantity of Class A controlled drug is six to 18 months’ imprisonment: Dinesh Singh Bhatia s/o Amarjeet Singh v PP [2005] 3 SLR(R) 1 at [38] as applied in the context of drug possession in PP v Lim Cheng Ji Alvin [2017] 5 SLR 671 (“Alvin Lim”) at [28] and Liew Zheng Yang v PP [2017] 5 SLR 1160 at [18].

Upward adjustment of two months’ to starting point sentence

30     I consider the aggravating and mitigating factors that warrant an upward or downward adjustment to the starting point sentence.

31     In terms of the aggravating factors:

(a)     first, the quantity of drugs possessed is a proxy of the harm caused by such possession; the greater the quantity, the graver the harm to the individual offender abusing the drugs, and therefore the greater the aggravating effect. In the present case, the quantity of methamphetamine in Mr Ryan’ possession is small, not less than 0.4g;

(b)     second, the drugs that were in Mr Ryan’ possession for this particular charge was for his own consumption. As the harm caused is confined to himself, it is less aggravating as opposed to possession for the purpose of trafficking that causes harm to others: Liew Zhen Yang at [14];

(c)     third, where the possession is for the purpose of consumption, there is a greater need for specific deterrence if the offender were an addict or a casual user, as opposed to a one-off user: Alvin Lim at [29]. In the present case, the facts reveal that Mr Ryan was a casual user at the very least, having abused drugs about two to three times a week. As such, specific deterrence applies in the present case; and

(d)     fourth, there is the aggravating presence of a similar TIC charge of possession of a different type of drug.

32     As for the mitigating factors:

(a)     first, being 30 years old at the time of the offences, Mr Ryan cannot avail himself of youth as a mitigating factor and the consequent baseline of six months’ imprisonment for younger offenders: Alvin Lim at [28]; Liew Zheng Yang at [20]. Indeed, the court in Alvin Lim had observed that for the 27-year-old accused in that case, there was no reason to think that the same position taken with young offenders should also apply to him: Alvin Lim at [15].

(b)     second, in cases of drug possession, if there is little room to suggest that the offender was not in possession, a plea of guilt will often carry little if any weight: Alvin Lim at [25].

33     The upshot of balancing the aggravating and mitigating factors lands on the side of a slight upward adjustment of two months’ imprisonment. The final sentence on the consumption charge is therefore eight months’ imprisonment.

Issue 1(d): Sentence of four months’ imprisonment on possession of drug utensils charge

34     The parties have submitted that a sentence of four months’ imprisonment should be imposed on the charge of possession of drug utensils. I also agree.

Starting point sentence of three months’ imprisonment

35     The starting point sentence for a possession of drug utensils charge is three months’ imprisonment, which is the median sentence passed on similar offenders who have pleaded guilty: Effrizan Kamisran v PP [2020] 5 SLR 747 at [40].

Upward adjustment of one month’s imprisonment to starting sentence

36     I apply a slight upward adjustment of one month’s imprisonment to take into account the fact that possession of the drug utensils was not only for the purpose of drug consumption but also for trafficking as well. The weighing scale was used to weight the drugs for his personal consumption and for his clients’ orders as well.

37     The final sentence for the possession of drug utensils charge is therefore four months’ imprisonment.

Issue 2: Sentences on trafficking, drug possession, and possession of drug utensils charges to run consecutively

38     I next consider how the individual sentences on the four charges are to run.

39     The defence has submitted for only the sentences on the trafficking and possession charges to run consecutively, on the basis that Mr Ryan already faces the prospect of a substantial term of imprisonment, which is qualitatively different from his previous stint at the Reformative Training Centre (“RTC”) and the Drug Rehabilitation Centre (“DRC”), and also a considerable number of strokes of the cane with the two sentences running consecutively. But that prospect is necessarily the consequence of committing multiple offences. Mr Ryan’s previous RTC and DRC stints have also proven to lack deterrent bite.

40     Other than the sentence on the consumption charge that is to run concurrently, the prosecution, on the other hand, has sought for the sentences on the three remaining charges to run consecutively. According to the prosecution, running any less than three sentences consecutively would yield a global sentence that is inadequate to reflect the multiple offences committed by Mr Ryan. I agree. Mr Ryan has committed multiple drug-related offences. Out of these seven offences, four attract a mandatory minimum sentence of five years’ imprisonment. The fact that two of these arose out of separate entrapments is irrelevant. Indeed, if anything, the second entrapment provided Mr Ryan a point of repentance to reconsider engaging in further criminal behaviour, but he chose not to turn away from crime and confirmed his deliberate involvement in criminal activity instead.

41     The totality principle has generally been taken to possess a limiting function, but it is equally capable of having a boosting effect on individual sentences where they would otherwise result in a manifestly inadequate overall sentence; this is because the principle not only requires the overall sentence not be excessive but also that it not be inadequate: Gan Chai Bee Anne v PP [2019] 4 SLR 838 at [20]. In the present case, running the sentences for the trafficking and consumption charges consecutively would have yielded a ten-year imprisonment term that would have been excessive; but running only the sentence for the trafficking charge consecutively with that for either possession charges only would represent some sort of bulk discount in sentencing that has the effect of conveying the unintended impression or suggestion that Mr Ryan does not have to bear the full brunt of the consequence of multiple offending, and in relation to serious offences at that: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [46], [75], [81].

42     Because the offences are also separate, unrelated and violate different legally-protected interests, I therefore order that the sentences on the trafficking, possession and possession of drug utensils charges to run consecutively: Raveen Balakrishnan at [41] and [102].

Conclusion

Aggregate sentence of six years’ six months’ imprisonment and eight strokes of cane imposed

43     I therefore sentence Mr Ryan to six years’ six months’ imprisonment and eight strokes of the cane, comprising:

(a)     five years’ six months’ imprisonment and five strokes of the cane on the trafficking charge;

(b)     five years’ imprisonment and three stokes of the cane on the consumption charge;

(c)     eight months’ imprisonment on the possession charge; and

(d)     four months’ imprisonment on the possession of drug utensils charge.

I order the sentences on the trafficking, drug possession, and possession of drug utensils charges to run consecutively, with the imprisonment term for the consumption charge to run concurrently. As concurrent sentences of caning cannot be ordered, they have to be aggregated as a cumulative sentence.

44     The aggregate sentence cannot be said to be substantially above the normal level of sentences for the most serious of the individual offences committed (being five years’ imprisonment and five strokes of the cane): Mohammed Shouffee bin Adam v PP (“Shouffee”) [2014] 2 SLR 998 at [54]. It would also not be crushing and not in keeping with his past record (given his similar drug-related antecedents) and future prospects (given that he is presently 31 years old) of setting a positive example for his children, staying resolutely away from drugs, committing to personal growth and providing a better future for his family, such that only two sentences should run consecutively, or that the individual sentences need to be re-calibrated in order to arrive at an appropriate aggregate sentence: Shouffee at [57].

45     I also backdate the sentence to 7 August 2023, when Mr Ryan was first arrested to take into account any period of custody and remand and to exclude his bail period from 3 April 2024 till date.

46     While I may not have agreed with the defence submissions in its entirety, I fully endorse the very measured and sensible approach it has taken in generally agreeing with the prosecution’s position on the individual sentences and parting ways only when it comes down to how the sentences are to be run that is necessary in the interests of the client. This effort is not only laudable but enlightened and is to be encouraged in criminal proceedings.

"},{"tags":["Tort – negligence – claim by client premised on solicitors’ failure to raise arguments in court proceedings","Tort – negligence – whether solicitors’ failure to raise arguments occasioned loss"],"date":"2024-09-04","court":"District Court","case-number":"District Court Suit No 1401 of 2021","title":"Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)","citation":"[2024] SGDC 228","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32170-SSP.xml","counsel":["Mr Suang Wijaya (Eugene Thuraisingam LLP) for the plaintiff","Mr Alfonso Ang and Mr Neo Wei Liang Anneson (A.Ang, Seah & Hoe) for the defendant."],"timestamp":"2024-09-23T16:00:00Z[GMT]","coram":"Teo Guan Kee","html":"Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)

Wen Wen Food Trading Pte. Ltd. v Tan Yew Seng (Practising as Alfred Tan & Co.)
[2024] SGDC 228

Case Number:District Court Suit No 1401 of 2021
Decision Date:04 September 2024
Tribunal/Court:District Court
Coram: Teo Guan Kee
Counsel Name(s): Mr Suang Wijaya (Eugene Thuraisingam LLP) for the plaintiff; Mr Alfonso Ang and Mr Neo Wei Liang Anneson (A.Ang, Seah & Hoe) for the defendant.
Parties: Wen Wen Food Trading Pte. Ltd. — Tan Yew Seng (Practising as Alfred Tan & Co.)

Tort – negligence – claim by client premised on solicitors’ failure to raise arguments in court proceedings

Tort – negligence – whether solicitors’ failure to raise arguments occasioned loss

4 September 2024

Judgment reserved.

District Judge Teo Guan Kee:

Introduction

1       The Plaintiff is a company, incorporated in Singapore, carrying on business as an operator of food stalls.

2       The Defendant is and was, at all material times, an advocate and solicitor.

3       The Defendant acted for the Plaintiff in High Court Suit No.930/2018 (“HC/S 930”).

4       The Plaintiff alleges that the Defendant was negligent in his conduct of HC/S 930 on behalf of the Plaintiff and has accordingly brought these proceedings against the Defendant seeking damages to be paid by the latter for loss occasioned by his negligence.

Brief Procedural History of HC/S 930

5       HC/S 930 was commenced on 21 September 2018 by the Plaintiff herein against a company known as Food Republic Pte Ltd (“Food Republic”).

6       The Plaintiff, which operated, inter alia, a food stall (the “ION Stall”) in a food court run by Food Republic located at ION Orchard (the “ION Foodcourt”), claimed that the latter had failed to honour a representation to allow the Plaintiff to operate the ION Stall for six years.

7       Specifically, the Plaintiff averred in HC/S 930 that Food Republic refused to extend the Plaintiff’s licence to operate the ION Stall and instead asked the Plaintiff to vacate the stall by 25 May 2018, less than six years from May 2016, being the date from which the Plaintiff alleged the promised six-year licence should have started to run.[note: 1]

8       After HC/S 930 was commenced, Food Republic, through its counsel, applied in HC/SUM 4872/2018 (“SUM 4872”) for the action brought by the Plaintiff to be struck out. Food Republic’s application was granted by an Assistant Registrar (“AR”) on 27 November 2018, and the Plaintiff’s action in HC/S 930 was struck out in its entirety.

9       The Plaintiff appealed against the decision of the AR by way of HC/RA 320/2018 (“RA 320”). RA 320 was heard by Dedar Singh Gill JC (as His Honour then was) and His Honour dismissed the Plaintiff’s appeal on 11 January 2019, with Grounds of Decision published on 7 March 2019 as [2019] SGHC 60 (the “RA 320 GD”).

10     In the RA 320 GD, the Judicial Commissioner noted that the Plaintiff’s action against Food Republic was based on a representation made by Food Republic that the Plaintiff would be able to operate the ION Stall for at least six years.[note: 2]

11     However, the Judicial Commissioner agreed with the AR in SUM 4872 that this argument was legally unsustainable, observing that the plaintiff could not have relied on or been induced by a misrepresentation (that a six-year license would be granted), as this directly contradicted the two-year licence period specified in the written contract between the parties.[note: 3]

12     It is also relevant, given the arguments raised by the Plaintiff in the present proceedings, that the Judicial Commissioner expressly remarked in the RA 320 GD that there was “no option to renew” the licence for the ION Stall in the written agreement between the Plaintiff and Food Republic.[note: 4]

13     The Plaintiff was dissatisfied with the decision in RA 320 and lodged an appeal to the Court of Appeal by way of a Notice of Appeal dated 1 February 2019, heard as CA/CA 16/2019 (“CA 16”).

14     CA 16 was heard before the Court of Appeal on 25 September 2019 and the Court of Appeal similarly dismissed the Plaintiff’s appeal.

15     The Defendant herein acted as counsel for the Plaintiff in HC/S 930 (including RA 320) as well as CA 16 up to and including the dismissal of CA 16 by the Court of Appeal.

16     For ease of reference, the proceedings in HC/S 930 (including RA 320) and CA 16 will collectively be referred to as the Food Republic Proceedings.

Summary of the Parties’ positions

The Plaintiff’s allegations

17     It is not disputed that, as the Plaintiff’s counsel on record in the Food Republic Proceedings, the Defendant owed to the Plaintiff a duty of care.

18     The Plaintiff has alleged that the Defendant breached this duty of care in failing to raise either of the two following arguments in the Food Republic Proceedings:

(a)     An argument that the Plaintiff had validly exercised a right of renewal contained in Clause 12 of a Licence Agreement (“Clause 12”), entered into between the Plaintiff and Food Republic dated 27 October 2016 (the “Licence Agreement”) pertaining to the Plaintiff’s operation of the ION Stall (the “Clause 12 Argument”); and

(b)     An argument that the Plaintiff was labouring under a unilateral mistake in believing that it was entitled to operate the ION Stall for six years when the Licence Agreement was signed (the “Mistake Argument”).

19     The Plaintiff avers that the Defendant’s failure to raise either the Clause 12 Argument or the Mistake Argument was the “direct and proximate cause of HC/S 930 being struck out”.[note: 5]

20     As such, the Plaintiff avers, the Defendant’s aforementioned failures caused the Plaintiff to lose a “real and substantial chance” of obtaining relief against Food Republic in HC/S 930 or, alternatively, to obtain a favourable out-of-court settlement with Food Republic.[note: 6]

The Defence

21     The Defendant accepts that he did not raise either the Clause 12 Argument or the Mistake Argument in the Food Republic Proceedings.

22     That said, the Defendant argues that his failure to raise these arguments did not amount to a breach of the duty of care which he owed to the Plaintiff in the Food Republic Proceedings, as he had valid reasons for not raising them.

23     In any event, the Defendant submits, his failure to raise the Clause 12 Argument and the Mistake Argument did not cause the Plaintiff to lose the chance of obtaining a favourable outcome or settlement in HC/S 930.

Background to the Plaintiff’s operation of the ION Stall

24     The Plaintiff’s primary witnesses in the proceedings before me were Mr Wang Lock Thean (“Wang”) and Mdm Elsie Tan (“Elsie”), a married couple.

25     Wang and Elsie were, at all material times, the directors of the Plaintiff.

26     In his Affidavit of Evidence-in-Chief (“AEIC”) filed in these proceedings, Wang asserted that the idea of taking up the ION Stall was first pitched to himself, Elsie and one Tan Boon Kiau (“BK Tan”) in or around March 2014 by two representatives of Food Republic, who he identified as Marquis Hou (“Marquis”) and Alvin Ong Lye Hock (“Alvin”).[note: 7]

27     BK Tan was not an officer of the Plaintiff, but Wang asserted that he was a person with whom the Plaintiff intended to “go into” the business of operating the ION Stall.[note: 8]

28     Wang asserted that Marquis and Alvin had informed BK Tan, Elsie and himself, inter alia, that if they became the operator of a stall at the then upcoming ION Foodcourt, they would have “priority to renew [its] licences each time [its] licence was up, which meant that [the Plaintiff] would effectively be able operate [sic] the stall for a duration of 6 years”.[note: 9]

29     I note that in HC/S 930, Food Republic did not agree with this position and that Alvin had affirmed an affidavit in those proceedings denying that Food Republic had, at any stage, represented that the licence period for the ION Stall would be six years.[note: 10]

30     On 26 March 2014, BK Tan signed a “stall licence booking form” for the ION Stall, for the sale of Yong Tau Foo (the “2014 Booking Form”).[note: 11]

31     For present purposes, it suffices to note that the 2014 Booking Form:

(a)     specified a licence period of “2 years”; and

(b)     contained the following acknowledgement directly above BK Tan’s signature:

I/We understand that this application is subject to acceptance, in whole or part. I/We agree to render my/our cooperation and be bounded by the terms and conditions of the licence agreement should I/We be selected.

(Emphasis added)

32     Although the 2014 Booking Form was signed in 2014, the ION Stall only commenced operations in or around June 2016 and the Licence Agreement for the ION Stall was formalised only on 27 October 2016. The parties to the Licence Agreement were Food Republic and the Plaintiff herein.

33     By way of further background, when the 2014 Booking Form was signed, the Plaintiff had not been incorporated. However, by the time the Licence Agreement was signed, the Plaintiff had been incorporated (in May 2016). Under cross-examination, Wang confirmed that the Plaintiff had been set up to operate the “business at ION”.[note: 12]

34     The Licence Agreement provided, in summary, that Food Republic would grant to the Plaintiff a “licence to use and occupy” the ION Stall on the terms and conditions set out therein.

35     In particular, the Licence Agreement included the following salient terms:

(a)     Section 6 of the Appendix to the Licence Agreement (the “Agreement Appendix”) provided for a license period of “27 May 2016 – 31 May 2018 (2 years)”.

(b)     Clause 12, entitled “Option to Renew”, stated that Food Republic “shall grant” the Plaintiff a “further licence” for a “renewal term and based on the further conditions as stated in Section 16”, which was a reference to section 16 of the Agreement Appendix.

(c)     The right to renew mentioned in Clause 12 was also subject to, inter alia, a requirement set out in Clause 12.1.1 of the Licence Agreement that the Plaintiff give “a notice to [Food Republic], not less than 6 months and not more than 9 months before the expiry of the Licence, that it wishes to exercise the option to renew the Licence”. Based on the licence period ending 31 May 2018, the relevant period during which the Plaintiff was required to give notice pursuant to Clause 12.1.1 (the “Window Period”) would have been from around the beginning of September 2017 to end November 2017.

(d)     Section 16 of the Agreement Appendix contained, under the title “Option to Renew”, only the notation “-NA-“, which the parties agreed was an abbreviation of the words “Not Applicable” (although they did not agree on the effect of this notation).

(e)     Clause 30.1 of the Licence Agreement contained an entire agreement clause, whereby the Plaintiff acknowledged that the Licence Agreement contained the whole agreement between the parties and that it had not relied on any oral or written representation made by Food Republic, its employees or agents.

36     On 4 April 2018, Food Republic sent a letter to the Plaintiff entitled “Notice of Expiration and Non-Renewal for [the ION Stall]”. In this letter, Food Republic made reference to the Licence Agreement, noted that it provided that the licence granted thereunder would expire on 31 May 2018 and informed the Plaintiff that Food Republic had decided “not to renew this Licence Agreement”. The letter also indicated that the Plaintiff’s last day of business should be 25 May 2018 and that the ION Stall was to be returned by 31 May 2018.[note: 13]

37     Correspondence then ensued between the Plaintiff and Food Republic in the following weeks, but ultimately Food Republic, through its then-Senior Branch Manager Nick Li, in an email dated 26 April 2018,[note: 14] informed the Plaintiff essentially that no renewal of the licence for the ION Stall would be granted.

38     On 21 May 2018, an email was sent by Elsie to Pearly Teo of Food Republic, stating that the Plaintiff would vacate the ION Stall.[note: 15]

39     Wang confirmed in his AEIC that the Plaintiff thereafter vacated the ION Stall on or around 25 May 2018.[note: 16]

The Clause 12 Argument

Breach of duty

40     The Plaintiff’s counsel have submitted that “on a plain reading of Clause 12.1 of the Licence Agreement, there exists an option to renew” the licence for the ION Stall and, further, that a reasonable solicitor would have:

(a)     further applied his mind to the existence of an option to renew in the Licence Agreement;[note: 17]

(b)     raised Clause 12 in response to Food Republic’s application to strike out the Plaintiff’s action in HC/S 930 and at the appeals therefrom; and

(c)     commenced HC/S 930 as, inter alia, a breach of contract claim alleging a breach of Clause 12 by Food Republic.[note: 18]

41     The Defendant accepts that he did not raise the Clause 12 Argument in the Food Republic Proceedings.[note: 19] It is also apparent, from the Statement of Claim filed in HC/S 930, that the Defendant did not plead any cause of action therein premised on Clause 12. However, he denies that the omission of the Clause 12 Argument from the Food Republic Proceedings arose because he had not properly considered the issue of whether the Plaintiff had an option to renew under Clause 12.

42     To the contrary, the Defendant asserts that he had specifically taken instructions from Elsie and Wang regarding Clause 12 and advised them that they could not seek to rely on the same in HC/S 930, as Elsie and Wang had not been aware of Clause 12 and had not given notice to Food Republic of the Plaintiff’s intention to renew the licence for the ION Stall in accordance with Clause 12.1.1.

43     The Defendant’s position is disputed by the Plaintiff.

44     In this regard, the Plaintiff has claimed that:

(a)     Elsie and Wang were aware of the existence of Clause 12.

(b)     Elsie and Wang did not inform the Defendant that they “did not seek oral renewal of the Licence Agreement” within the period provided for in Clause 12.[note: 20]

45     As such, the Plaintiff argues, it was incumbent upon the Plaintiff to “properly interrogate Clause 12 in the context of the Licence Agreement”.[note: 21]

46     Since the success of the Clause 12 Argument would have been premised on the Plaintiff having given notice of an intention to renew the licence for the ION Stall in accordance with Clause 12, in the next portion of these Grounds, I consider the evidence as to whether Elsie and Wang had been aware of Clause 12, and whether there is evidence that they had given notice in accordance with the requirements of that clause.

Evidence

(1)   Whether Elsie and Wang were aware of Clause 12

47     With respect, it is not entirely clear which period is being referred by the Plaintiff in relation to its submission that Wang and Elsie were aware of the existence of Clause 12.

48     Specifically, it is not clear whether the Plaintiff’s position is that Wang and Elsie had been aware of Clause 12 during the Window Period or whether what the Plaintiff meant was that Wang and Elsie had been aware of Clause 12 when they engaged the Defendant to act for the Plaintiff in connection with the latter’s grievances with Food Republic.

49     It will be appreciated that the point in time at which Wang and Elsie supposedly became aware of Clause 12 would have a significant bearing on their knowledge of the mechanism for seeking renewal set out therein and hence their ability to demonstrate that they had taken the necessary steps to set the aforementioned mechanism in motion.

50     In Wang’s AEIC, he stated that he had brought Clause 12 to the attention of the Defendant at a meeting with the Defendant on or around 30 November 2018, after the AR had ordered that the action in HC/S 930 be struck out.[note: 22] However, this assertion was not supported by any contemporaneous evidence.

51     Further, even if it is true that Wang raised Clause 12 to the Defendant in November 2018, there is evidence which suggests that up to and including May 2018, when the Plaintiff engaged the Defendant, Wang and Elsie were not aware of Clause 12 or its significance.

52     First, none of the three witnesses associated with Food Republic who testified at the trial before me provided any evidence which supported the Plaintiff’s assertion that Wang and Elsie had orally sought to renew the Licence Agreement during the Window Period. This is despite Wang asserting in his AEIC that an oral notice of intention to renew was given to Food Republic’s representatives “approximately 5 times”.[note: 23]

53     Significantly, Wang named “Pearly Teo, Leonard Bong, Nick Li” as the persons to whom they had communicated such an intent. All three of these persons gave evidence at the trial, but not one could recall having been so informed by the Plaintiff’s representatives.

54     Secondly, prior to engaging the Defendant, the Plaintiff had been represented by another firm, Messrs Optimus Chambers LLC (“Optimus”). If Wang and Elsie had been aware of Clause 12 as they claimed, one expects they would have addressed Clause 12 with the solicitors from Optimus as well.

55     Yet, when one looks at the documents prepared by Optimus in connection with the Plaintiff’s claim against Food Republic, Clause 12 does not feature at all.

56     Optimus’ final bill for services rendered to the Plaintiff in connection with its dispute with Food Republic was dated 20 June 2018, after the Defendant had been engaged by the Plaintiff. The Schedule to this bill (the “Optimus Schedule”)[note: 24], which was disclosed in Wang’s own AEIC, contained a summary of work carried out by Optimus on behalf of the Plaintiff between 13 April 2018 and 17 May 2018.

57     The Optimus Schedule confirms that the Licence Agreement had been provided to Optimus and that they had been given instructions to review the same on 13 April 2018.

58     Thereafter, between 17 April 2018 and 25 April 2018, the Optimus Schedule records that Optimus was engaged in discussions with the Plaintiff about corresponding with Food Republic and its representatives.

59     Significantly, the Optimus Schedule then records that on 10 May 2018, Wang and Elsie had met with Optimus’ solicitors for a “lengthy discussion” on Wang and Elsie’s decision to “proceed” with a claim against Food Republic “for breach of their oral contract to allow the [Plaintiff] to renew the Agreement for the next 4 years” (emphasis added).[note: 25]

60     It will be obvious that the claim which Optimus had instructions to commence against Food Republic, as of 10 May 2018, could not have been one based on Clause 12, because the instructions made reference to an oral contract to renew the ION Stall’s licence.

61     Further, Wang confirmed under cross-examination the terms of a draft letter of demand[note: 26] which had been prepared by Optimus to be sent (by Optimus) on behalf of the Plaintiff.[note: 27]

62     The terms of this draft letter of demand further reinforce the instructions received by Optimus on 10 May 2018, as recorded in the Optimus Schedule, in that the draft also makes no mention of Clause 12 or of the Plaintiff having given notice of an intention to renew the licence for the ION Stall.

63     Separately, it is also pertinent to note the transcript of a meeting[note: 28] which Wang and Elsie supposedly attended on 7 May 2018 (about 10 days before the Defendant was engaged), with three persons associated with Food Republic:

(a)     Nick Li (Senior Branch Manager);

(b)     Alvin Ong (Leasing Manager); and

(c)     Andy Kiu (General Manager).[note: 29]

64     As a preliminary point, I would record that I entertain some doubt regarding the accuracy of the transcript.

65     First, the person who prepared the transcript is not identified in the evidence and the transcript itself contains no certification as to accuracy.

66     Secondly, at trial, Nick Li cast doubt on the accuracy of the transcript, as it appeared to record words spoken by a woman who he did not recall was at the meeting.[note: 30]

67     Notwithstanding the foregoing, Wang himself must stand by the transcript, having introduced it into evidence.[note: 31]

68     From the contents of the transcript, it is plain that throughout the meeting, Wang and Elsie’s complaints were centred around a representation that they would be allowed to operate the ION Stall for 6 years. There was no reference at all to Clause 12.

69     To the contrary, the overall tenor of Wang’s complaints against Food Republic during the meeting gives the impression that he was unhappy that Food Republic insisted on sticking to the strict terms of the Licence Agreement, which he called the “contract”.

70     On the whole, therefore, the evidence available to this Court suggests that in May 2018, which also happened to be around the time the Defendant was engaged by the Plaintiff, Wang and Elsie were not aware of Clause 12.

71     That being the case, there is no reason to believe that Wang or Elsie would have been aware of Clause 12 during the earlier Window Period.

72     Taken at its highest, the evidence shows only that Wang and were aware of Clause 12 on or around 30 November 2018, after SUM 4872 had been decided.

73     The Plaintiff’s counsel emphasize that the Defendant herein has not disclosed any attendance notes which he may have made in the course of his retainer with the Plaintiff.

74     The Defendant claimed under cross-examination that he did keep “one or two attendance notes” in response to a suggestion that he could not remember whether he had met with Wang and Elsie after SUM 4872 had been decided.[note: 32]

75     However, the Defendant could only claim to have “no comments” when it was suggested to him that he had not kept attendance notes which would have recorded meetings with Wang and Elsie after CA 16 was heard.[note: 33]

76     I am constrained to agree with the Plaintiff’s counsel that the Defendant’s failure to disclose a single attendance note must, in the words of VK Rajah JC (as he then was) in Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR(R) 594 (“Lie Hendri”), handicap the Defendant insofar as the credibility of his evidence is concerned.

77     However, the absence of attendance notes should not be overstated in this case. As Rajah JC opined in Lie Hendri, it would be “incorrect” to say that “the absence of an attendance note is either tantamount to negligence or robs a solicitor’s testimony of all significance”.

78      A fortiori, the absence of an attendance note supporting a defendant solicitor’s assertions would not necessarily mean that his aggrieved client’s case must, without more, be accepted unconditionally. Ultimately, the Plaintiff still bears the burden of proving its own case.

79     As such, whilst I would view the Defendant’s claims that he had interviewed Wang and Elsie regarding Clause 12 with suspicion, this need not influence the view which I have formed based on evidence available to me from other sources, that is, that Wang and Elsie had not in fact been aware of Clause 12 or its significance during the Window Period and up to the point at which they engaged the Defendant to act for the Plaintiff.

(2)   Whether Wang and Elsie reached out to Food Republic’s representatives during the Window Period

80     Not only does the evidence provide no support for an assertion that Wang and Elsie were aware of Clause 12 prior to May 2018, there is also no independent evidence that Wang and Elsie contacted Food Republic’s representatives during the Window Period to indicate an intention to renew the ION Stall.

81     In his AEIC, Wang asserted that he and Elsie had reached out to Food Republic “[o]n or around October to November 2017 onwards” to arrange a meeting, because it was standard practice for stall owners to ask for an “appointment to renew their licence”,[note: 34] and also that they had verbally informed Food Republic’s representatives of their intention to renew the licence for the ION Stall.

82     However, these were bare assertions. There was no supporting evidence, for example in the form of text messages, showing that Wang and Elsie had asked for such a meeting at all, during the Window Period, despite Wang disclosing, in his AEIC, text messages which he exchanged with Pearly in February 2018, just a few months thereafter (but after the Window Period had ended), requesting a meeting.

83     Further, as mentioned above, none of Pearly Teo, Leonard Bong and Nick Li could recall, when questioned at trial, that they had been informed of the Plaintiff’s intention to renew the licence for the ION Stall.[note: 35]

Analysis

84     In considering whether the Defendant breached the duty which he owed to the Plaintiff, comments made by Belinda Ang J, in the case of Sports Connection Pte Ltd v Asia Law Corp and another [2015] SGHC 213 (“Sports Connection”) are apposite.

85      Sports Connection involved an action brought by a company against its solicitors for negligent advice, in connection with a lawsuit conducted by the latter on behalf of the former.

86     Ang J opined in Sports Connection at [13] that defendant solicitors “cannot be liable for any error of judgment in the course of a lawsuit”.

87     In making this remark, Ang J plainly did not mean that errors of judgment could never give rise to a cause of action in negligence against a solicitor guilty of that error; instead, it appears this remark was a reminder that not every error of judgment would give rise to such a cause of action.

88     Ang J also remarked in Sports Connection that a defendant solicitor’s conduct ought not to be assessed with the benefit of hindsight.

89     Given my finding that Wang and Elsie were not aware of Clause 12 during the Window Period, it follows that they could not possibly have knowingly acted, in accordance with Clause 12, to give notice of the Plaintiff’s intention to renew the licence for the ION Stall, during the Window Period.

90     That being said, if one takes the interpretation of Clause 12 which is most generous to the Plaintiff, this still leaves the possibility of making an argument that Wang and Elsie unknowingly engaged in communications with representatives of Food Republic, during the Window Period, which could constitute notice of an intention to renew, sufficient to meet the requirements of Clause 12.

91     Herein lies the significance of the Plaintiff’s assertion that Wang and Elsie had not informed the Defendant that they did not seek renewal of the Licence Agreement by giving verbal notice of an intention to do so. The Plaintiff’s case is effectively that because Elsie and Wang had not expressly provided information to the Defendant which ruled out the possibility that notice of an intention to renew had been unknowingly provided, the Defendant ought to have pleaded a cause of action premised on such a possibility.

92     The question is therefore whether, in failing to anticipate this cause of action, the Defendant’s conduct had fallen below the standard of a reasonably competent lawyer. In my view, the answer to this question is “no”.

93     Bearing in mind that the Plaintiff’s representatives were not, during the Window Period in 2017 or when the Defendant was first engaged in May 2018, aware of Clause 12, the Plaintiff’s case could not be that the Defendant failed to uncover the Plaintiff’s knowing exercise of its rights thereunder, but could only be that the Defendant failed to construct a case around facts which could have constituted an unknowing exercise, by the Plaintiff, of its right to the renewal provided for in Clause 12.

94     This position is reflected in the Plaintiff’s Closing Submissions, wherein the Plaintiff’s case was premised on the Defendant’s failure to “interrogate” or raise Clause 12 in the Food Republic Proceedings,[note: 36] as opposed to any assertion by Wang or Elsie that they had exercised the Plaintiff’s rights under Clause 12, and thereafter informed the Defendant of this.

95     The Plaintiff also asserted that because Wang and Elsie had not informed the Defendant that they had failed to seek oral renewal under Clause 12 within the Window Period, the Defendant was “at liberty”[note: 37] to raise Clause 12 in the Food Republic Proceedings.

96     It is clear, from the judgment in Sports Connection, that Ang J was acutely sensitive to the factual background in considering whether a lawyer’s actions had fallen below the standard expected of a reasonably competent lawyer.

97     Similarly, Judith Prakash J, in Tan & Au LLP v Goh Teh Lee [2012] 4 SLR 1 (“Goh Teh Lee”) at [64], recognised that when considering whether a solicitor has exercised reasonable skill and care, he should be judged in light of the circumstances existing at the time and not on hindsight.

98     Here again, the question of the defendant solicitor’s liability was also said by Prakash J (at [57] of Goh Teh Lee) to turn on whether any error made by the solicitor “was one which no reasonably competent solicitor would have made”.

99     Viewed in light of the information available to him at the time (for which the evidence adduced in these proceedings must be the proxy), the Defendant’s failure, in relation to his handling of the Food Republic Proceedings, was at best a failure to construct a case based on some informal notification, unsupported by any documentary evidence, which could have formed the basis for renewal under Clause 12.

100    I accept the Plaintiff’s argument that the Defendant cannot be allowed to rely on the defence that he had not been expressly instructed to construct such a case to absolve himself of liability. This is because ultimately the Plaintiff engaged the Defendant so as to benefit from the latter’s skill and experience as counsel.

101    That said, the fact that no express instructions were given by the Plaintiff to the Defendant to construct a case around the requirements of Clause 12 is still relevant, for it meant that that the Defendant was free to exercise his professional judgment to decide whether or not to put forward a case premised on Clause 12 in the Food Republic Proceedings.

102    This, taken together with the consideration that any notification of an intention to renew the licence during the Window Period would only have been made informally, without direct reference to Clause 12 and that any such notification was unsupported by documentary evidence, leads me to conclude that the Defendant’s failure to raise Clause 12 in the Food Republic Proceedings did not fall below the standard of a reasonably competent lawyer.

103    In other words, the failure by the Defendant to raise Clause 12 was not an omission which no reasonably competent solicitor would have made.

104    The nature of the Defendant’s failure, in this case, may be usefully contrasted against those of the defendant solicitors in the decision of Kitchen v Royal Air Force Association and others [1958] 1 WLR 563 (“Kitchen”). In Kitchen, the defendant solicitors were ultimately found by the English Court of Appeal to have been negligent in their handling of a claim on behalf of the plaintiff.

105    Specifically, the failures of an articled clerk handling the plaintiff’s matter (which were apparently attributed to the defendant firm) were helpfully summarised by Sellers LJ as follows (at pages 577 to 578 of the Judgment):

(a)     “inadequate efforts had been made to obtain evidence…”;

(b)     “failed to serve a writ within the statutory period of one year to keep the claim open…”

(c)     “failed to inform the plaintiff of the time-limit for the writ and the consequences of not issuing the writ and to obtain her instructions…”

106    It will be apparent from the foregoing that the failures attributed to the defendant solicitors in Kitchen were far more egregious than the failure of the Defendant before me.

107    Separately, in my view, it is not sufficient for the Plaintiff, in order to succeed in its action herein, to show that a notional argument, premised on Wang and Elsie having given oral notification to Food Republic of an intent to renew the licence for the ION Stall, could have staved off the striking out application made in SUM 4872.

108    The Defendant herein was plainly not engaged by the Plaintiff only to successfully resist a striking out application.

109    As such, a lawyer is not invariably to be regarded as having fallen below the standard of a reasonably competent lawyer only on account of having failed to raise an argument which is strong enough to defeat a striking out application but which, on the information available to that lawyer, he reasonably felt would not succeed at trial.

Breach of duty: Conclusion

110    By reason of the foregoing, I find that the Defendant did not breach his duty of care to the Plaintiff in failing to raise the Clause 12 Argument in the Food Republic Proceedings.

Causation

111    Even if, contrary to my findings above, the Defendant was remiss in failing to raise the Clause 12 Argument in the Food Republic Proceedings, in my view the Plaintiff herein has still not demonstrated that such a failure occasioned any loss to the Defendant.

112    I say this because:

(a)     there is insufficient evidence to show that Clause 12 was not considered in the Food Republic Proceedings; and

(b)     I do not accept the Plaintiff’s counsels’ submissions as to what the likely outcome of the Food Republic proceedings would have been if the Clause 12 Argument had been raised by the Defendant.

Insufficient evidence to show that Clause 12 was not considered in the Food Republic Proceedings

113    The Plaintiff’s counsel submits that Clause 12 is “a direct response to the Courts’ findings that there was no option to renew the Licence Agreement” which, had it been brought to the Court’s attention, would have led to HC/S 930 being “allowed to proceed”.[note: 38]

114    However, there is no evidence that Clause 12 was not considered in the Food Republic Proceedings.

115    Both the Judicial Commissioner in RA 320, as well as the Court of Appeal in CA 16, expressly made comments to the effect that the Licence Agreement contained no option to renew.

116    At the very first hearing of RA 320 on 17 December 2018, Gill JC highlighted the Appendix to the Licence Agreement and provisionally commented that

Licence period is stated to be two years. Page 62 under “Option to Renew” states NA. This is the difficulty with the Plaintiff’s case.[note: 39]

117    Subsequently, in the Notes of Evidence (“NE”) for the hearing of RA 320 on 11 January 2019, the Judicial Commissioner was again recorded as having specifically highlighted the Appendix to the Licence Agreement, in particular, the section entitled “Option to Renew”. This was directly linked to Clause 12, which was also entitled “Option to Renew”.

118    Similarly, regard can also be had to the certified NE for the hearing of CA 16 on 25 September 2019, wherein it is recorded that the Court of Appeal stated, inter alia, “there is no option to renew in the Licence Agreement”.

119    With respect to the Plaintiff’s counsel, there is no basis for me to conclude that the coram in RA 320 and CA 16 had failed to consider the possible import of Clause 12, before expressing their opinion that the Licence Agreement did not contain any option to renew.

120    It is worth noting that in arriving at their respective decisions in the Food Republic proceedings, the AR in SUM 4872, the Judicial Commissioner in RA 320 and the Judges of Appeal in CA 16 all made reference to the primacy of the Licence Agreement over any alleged representation made by Food Republic, thus demonstrating a focus on the terms of the Licence Agreement.

121    In view of the aforementioned Courts’ recognition of the importance of the Licence Agreement, the Plaintiff’s submission that Clause 12 of the Licence Agreement could not have been considered by all the Courts involved in the Food Republic Proceedings is not one which I am prepared to accept.

The Plaintiff’s submissions as to the hypothetical outcome of the Food Republic Proceedings if the Clause 12 Argument had been raised

122    The Plaintiff has put forward a version of events which it says would likely have transpired had the Clause 12 Argument been raised in the Food Republic Proceedings. Specifically, in the Plaintiff’s Closing Submissions, it submitted that:

(a)     The Plaintiff “would have had a strong case to argue that, based on a plain reading of Clause 12 and Section 16 [of the Agreement Appendix], there would have been an option to renew if the conditions at Clauses 12.1.1 to 12.1.3 were satisfied”.[note: 40]

(b)     “In construing the Licence Agreement the Court would lean towards the interpretation that there is an option to renew in Clause 12, with no further conditions that need to be fulfilled as none are detailed in Section 16” due to the operation of the contra proferentum rule.[note: 41]

(c)     The Court in HC/S 930 would likely have been persuaded that “the lack of defining of the terms of the renewal period and price simply means that Food Republic is obliged to grant a renewal period on the terms of the Licence Agreement”.[note: 42]

(d)     Since Clause 12 “sets clearly defined conditions that [the Plaintiff] had to fulfil before it could avail itself of the option to renew”, in that there was a specified period within which notice had to be served on Food Republic and the Plaintiff was obliged not to be in default of the Licence Agreement, this “must mean that the parties had explicitly contemplated and intended for there to be an option to renew in the Licence Agreement, and Food Republic had agreed to such an obligation. Had there been any more qualifications that Food Republic wished to have made, it would have made it amply clear in Section 16 [of the Agreement Appendix].”[note: 43]

123    I have set out the Plaintiff’s submissions in some detail to illustrate the lengths to which this Court is being invited to go, in hypothesizing as to the likely outcome of a trial, in the High Court, of HC/S 930.

124    On the information available to this Court, I am unable to conclude that there was a real and substantial chance that HC/S 930 would have turned out in the manner contended for on behalf of the Plaintiff, as summarised above.

125    The Plaintiff’s description of the putative outcome of a trial in HC/S 930 is premised, not just on findings of law, but of fact as well, for instance, that the preconditions for renewal set out in Clause 12 had been met.

126    As such, in order for this Court to arrive at the same view as that advocated for by the Plaintiff as to the outcome of a trial in HC/S 930, I would be required to agree with the Plaintiff that there was at least a real and substantial chance that the findings required to arrive at the aforementioned outcome would have been made.

127    To begin, I do not see how this Court could blithely arrive at such a conclusion, in the absence of both evidence adduced and arguments advanced by Food Republic, which is not a party to this suit.

128    Here, the Plaintiff’s suggestion that this Court can “evaluate” the Plaintiff’s chance of succeeding in HC/S 930 in percentage terms is, with respect, a non-starter because it is not even apparent that Food Republic had filed a Defence to the Plaintiff’s claim in HC/S 930 when the Plaintiff’s action therein was struck out.

129    The decision in Hanif v Middleweeks (a firm) [2000] Lloyd’s Rep PN 920, which the Plaintiff seeks to rely on, does not assist the Plaintiff here.

130    In that case, the English Court of Appeal was able to assess the plaintiff client’s chance of success in litigation, which had been struck out due to want of prosecution on the part of their solicitors (whom the client sued), by examining the merits of the defences which had been raised by the defendants in the suit which had been struck out. In contrast, no formal Defence was filed by Food Republic before HC/S 930 was struck out.

131    As such, the Plaintiff’s counsel herein was reduced to speculating about the supposed defences that would have been raised by Food Republic in HC/S 930 to a notional Clause 12 Argument but, at the same time, submit that these defences would not have found purchase with the High Court in the event of a trial. This was effectively a situation in which the Plaintiff’s counsel were arguing against themselves.

132    In any event, even if this Court were to carry out an assessment of the Plaintiff’s chances in a putative trial of HC/S 930, based on the available evidence, I would be unable to find that the Plaintiff had any real or substantial chance of success. Assuming that Clause 12 gave the Plaintiff an option to renew the licence for the ION Stall, there is scant evidence to show that the Plaintiff gave the requisite notice to Food Republic that was required under that provision (see paragraphs 80 to 83 above).

133    Separately, there were again suggestions by the Plaintiff’s counsel that so long as the Plaintiff can demonstrate that the making of the Clause 12 Argument would have allowed it to avoid the striking out of its action in HC/S 930, the requirement to demonstrate causation would be satisfied, because the Plaintiff would have lost the chance to pursue its case in HC/S 930 to trial.

134    This appears, for instance, in paragraph 38 of the Plaintiff’s Closing Submissions and paragraph 35 of the Plaintiff’s Reply Submissions.

135    The same reasoning underlies the Plaintiff’s counsels’ assertions, made in the Plaintiff’s Further Written Submissions dated 15 August 2024, that the “converse of striking out is a real and substantial chance of arguing the claims”.[note: 44]

136    I do not agree with this argument.

137    It is not sufficient for the Plaintiff to show the loss of merely any chance, such as a chance for the Plaintiff to argue its claims, without regard to the merits of such claims.

138    The authorities are clear that what the Plaintiff must show it has lost, by reason of some breach on the part of the Defendant, is a “real and substantial” chance.

139    In submitting that the loss of a chance to avoid having the Food Republic Proceedings struck out was itself sufficient to demonstrate causation for the purposes of the Plaintiff’s action against the Defendant herein, the Plaintiff has erroneously ignored the merits of its claim against Food Republic, which was one (if not the) key determinant of whether what was lost, by the Defendant’s actions, was real and substantial or not.

140    For the above reasons, I am not satisfied that the Defendant’s failure to raise the Clause 12 Argument caused loss to the Plaintiff.

The Mistake Argument

141    Independently of the Defendant’s failure to raise the Clause 12 Argument, the Plaintiff’s counsel in these proceedings have also submitted that a reasonable solicitor would have advanced, in the Food Republic Proceedings, the Mistake Argument.

142    As framed by the Plaintiff’s counsel, a “reasonable solicitor would be aware that claims that hinge on a mistake will, in all likelihood, not be struck out”[note: 45] and that pleading mistake could “possibly entitle the mistaken party to equitable rectification of an agreement”.[note: 46]

Breach of Duty

143    In Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502 (“Digilandmall”), the Court of Appeal first recognised that

the law will declare void a contract which was purportedly entered into where the non-mistaken party was actually aware of the mistake made by the mistaken party.[note: 47]

(Emphasis added)

144    The Court of appeal then went on, in Digilandmall at [80], to say that where the non-mistaken party did not have actual knowledge of the mistake but had constructive knowledge coupled with an “additional element of impropriety”, the court could also grant relief in the exercise of its equitable (as opposed to common law) jurisdiction.

145    I am unable to agree with the Plaintiff’s counsel that only a solicitor who was not reasonably competent could have failed to appreciate and raise the Mistake Argument in the Food Republic Proceedings.

146    I have already referred to Ang J’s reminder, in Sports Connection, that not every error of judgment would amount to negligence, and to Prakash J’s comment, in Goh Teh Lee, that a defendant lawyer’s conduct must be assessed in light of the circumstances existing during the relevant period and not on hindsight.

147    The primary difficulty with the Plaintiff’s argument under consideration is that whilst there may have been evidence that Wang and Elsie were labouring under a mistake as to their entitlement to operate the ION Stall for six years, there is no credible evidence, either in the Food Republic Proceedings or the present suit, to suggest that Food Republic was or ought to have been aware that Wang and Elsie were labouring under such a mistake.

148    Indeed, the Plaintiff’s counsel themselves have not identified, in the Plaintiff’s Closing Submissions or Reply Submissions, any specific evidence which was available to the Defendant herein, during the period when he was engaged by the Plaintiff, that could have formed the basis for raising the Mistake Argument in HC/S 930.

149    It follows that there is no basis for this Court to find that the Defendant had failed to appreciate or consider the significance of some evidence or information available to him, such that his failure to raise the Mistake Argument in the Food Republic Proceedings caused him to fall below the standard of a reasonably competent lawyer.

150    The Plaintiff’s counsel have sought to argue, in the Plaintiff’s Further Written Submissions dated 15 August 2024, that “the fact that it did not cross the mind of a solicitor to run a credible argument, whether or not ultimately successful, is arguably negligent”.[note: 48]

151    With respect, this assertion is neither here nor there, for the Court here is not concerned with whether the Defendant’s conduct was only “arguably” negligent but whether his conduct failed to meet the standard expected of any reasonably competent lawyer.

152    I also think it is relevant that this allegation of a failure by the Defendant to make the Mistake Argument was not even one which was raised by the Plaintiff’s present counsel themselves in their early correspondence with the Defendant.

153    Specifically, in their letters sent on behalf of the Plaintiff to the Defendant herein dated 14 December 2020[note: 49] and 12 January 2021[note: 50], there was no mention at all of a failure to raise the Mistake Argument.

154    The original Statement of Claim filed in these proceedings on 5 July 2021 also did not contain any allegation that the Defendant had breached his duty to the Plaintiff by reason of a failure to raise, in the Food Republic Proceedings, the Mistake Argument.

155    The allegation of negligence coming in the form of a failure to raise the Mistake Argument appeared, for the first time, in the Plaintiff’s Statement of Claim (Amendment No.2) filed on 19 August 2022, more than one year after this suit had been commenced.

156    I turn now to the submission that the Plaintiff could have sought the remedy of equitable rectification if only the Mistake Argument had been raised in HC/S 930.

157    Having regard to the decision in Yap Son On v Ding Pei Zhen [2017] 1 SLR 219, equitable rectification for a unilateral mistake would require, inter alia, the non-mistaken party to know of the mistaken party’s mistaken belief and yet do nothing to correct that mistaken belief.[note: 51]

158    In this regard, as I have already mentioned, there is no credible evidence of Food Republic’s knowledge of the Plaintiff’s supposedly mistaken belief.

159    For the above reasons, I find that the Defendant did not fall below the standard of a reasonably competent lawyer in failing to raise the Mistake Argument in HC/S 930.

Causation

160    In its Closing and Reply Submissions, the Plaintiff did not put forward any assessment of its chances of succeeding in making out the Mistake Argument, or of obtaining the equitable rectification which it says could have been a remedy to which it was entitled in consequence of successfully making such an argument.

161    I am of the view that the Plaintiff has not demonstrated the loss of any real or substantial chance stemming from the Defendant’s failure to raise the Mistake Argument in the Food Republic Proceedings. As I have commented above, there is insufficient evidence to support the Mistake Argument in the first place.

162    The Plaintiff’s counsel have, in order to illustrate how the Plaintiff was allegedly disadvantaged by the Defendant’s failure to raise the Mistake Argument, made reference to cases which show that if only such an argument had been raised, the Plaintiff’s claim in HC/S 930 would not have been struck out, but without then going further to submit on what its chance of succeeding on the Mistake Argument would have been in a trial of HC/S 930.

163    I would state again that such an argument is inchoate, for the purpose of establishing a claim premised in negligence, because the avoidance of having HC/S 930 struck out was not itself a valuable remedy, but at best, an opportunity for the Plaintiff to have recourse to another, separate opportunity, to obtain substantive relief from the Court in the Food Republic Proceedings.

164    As such, even if I am mistaken on the question of whether the Defendant’s conduct herein had fallen below the standards required of a reasonably competent lawyer, I am of the view that the Plaintiff has not demonstrated that such conduct occasioned any compensable loss to the Defendant.

Loss of opportunity to settle HC/S 930

165    Apart from submitting that the Defendant’s failures to raise the Clause 12 Argument and the Mistake Argument cost the Plaintiff the chance of obtaining a substantial remedy in court proceedings against Food Republic in HC/S 930, the Plaintiff’s counsel also argued that the striking out of the Plaintiff’s action in HC/S 930 caused it to lose a real and substantial chance of obtaining a favourable out-of-court settlement from Food Republic.[note: 52]

166    The Plaintiff suggested that there was a real and substantial chance that Food Republic would have pursued an out-of-court settlement if only the matter had not been struck out, partly because of the costs which Food Republic would have incurred in having that matter tried and partly because, according to the Plaintiff’s counsel, the Plaintiff “had a strong case that Clause 12 obliged Food Republic to grant a further licence period”.[note: 53]

167    I have already expressed my views on the shortcomings of an argument premised on Clause 12.

168    In particular, as previously mentioned, none of the witnesses associated with Food Republic who gave evidence at the trial before me provided any testimony that lent meaningful support to the Plaintiff’s case against Food Republic.

169    That being the case, it is unrealistic to imagine that the evidence of the aforementioned persons would have been any more favourable to the Plaintiff if Food Republic were a party to the proceedings (for instance, in a trial of HC/S 930), or that they would have provided information to Food Republic which would have made the latter more inclined to enter into a settlement with the Plaintiff.

170    As for the argument that Food Republic would have been deterred from pursuing a trial because of the costs of doing so and the perceived strength of a case premised on the Clause 12 Argument or the Mistake Argument, that is also pure speculation on the part of the Plaintiff’s counsel.

171    As such, I do not accept that the Defendant’s failure to raise the Clause 12 Argument or the Mistake Argument in HC/S 930 occasioned the loss of a real and substantial opportunity to settle the matter out-of-court.

Decision

172    In view of my findings above, the Plaintiff’s action against the Defendant herein is dismissed in its entirety.

173    The costs and disbursements of this action are to be fixed by this Court if the parties are unable to agree on the same. The parties are to file and exchange their respective written submissions on costs and disbursements within 14 days hereof, limited to 10 pages, if required. ​

[note: 1]Statement of Claim filed in HC/S 930 at paragraphs 16 to 19.

[note: 2]RA 320 GD at [12].

[note: 3]RA 320 GD at [20].

[note: 4]RA 320 GD at [28].

[note: 5]Plaintiff’s Closing Submissions dated 22 December 2023 (“PCS”) at page 23.

[note: 6]Plaintiff’s Reply Submissions (“PRS”) dated 22 February 2024 at paragraph 32.

[note: 7]Wang’s AEIC at paragraph 6.

[note: 8]Wang’s AEIC at paragraph 17.

[note: 9]Wang’s AEIC at paragraph 10.

[note: 10]RA 320 GD at [14].

[note: 11]Wang’s AEIC at page 33.

[note: 12]NE 17 August 2023 28/16-22.

[note: 13]Bundle of AEICs Volume 1 (“1BA”) at 95.

[note: 14]1BA109.

[note: 15]1BA175.

[note: 16]Wang’s AEIC at paragraph 70.

[note: 17]Paragraph 26 of the PCS.

[note: 18]Paragraph 27 of the PCS.

[note: 19]Paragraph 13 of the Defence (Amendment No.2) read with paragraph 28.8 of the Statement of Claim (Amendment No.2).

[note: 20]PCS at paragraph 15.

[note: 21]PCS at paragraph 23.

[note: 22]Wang’s AEIC paragraph 79.

[note: 23]Wang’s AEIC at paragraph 50.

[note: 24]1BA 172.

[note: 25]1BA 173.

[note: 26]Agreed Bundle of Documents volume 3 at 1199.

[note: 27]NE 16 August 2023 53/4-10.

[note: 28]1BA 113.

[note: 29]Wang’s AEIC at paragraph 55.

[note: 30]NE 17 August 2023 78/29-79/23.

[note: 31]Wang’s AEIC at paragraph 57.

[note: 32]NE 13 October 2023 45/15-24.

[note: 33]NE 13 October 2023 45/25-46/6.

[note: 34]Wang’s AEIC at paragraph 49.

[note: 35]Paragraph 53 above.

[note: 36]PCS at paragraphs 4 and 23.

[note: 37]PCS at paragraph 15.

[note: 38]Paragraph 40 of the PCS.

[note: 39]Agreed Bundle of Documents volume 1 at 440.

[note: 40]PCS at paragraph 51.

[note: 41]PCS at paragraphs 54 and 59.

[note: 42]PCS at paragraph 75.

[note: 43]PCS at paragraph 80.

[note: 44]Plaintiff’s Further Written Submissions dated 15 August 2024 (“PFS”) at paragraph 14.

[note: 45]PCS at paragraph 34.

[note: 46]PCS at paragraph 35.

[note: 47]Digilandmall at [37].

[note: 48]PFS at paragraph 31.

[note: 49]1BA206.

[note: 50]1BA210.

[note: 51]Yap Son On at [65].

[note: 52]PCS at paragraph 109.

[note: 53]PCS at paragraphs 113 and 114.

"},{"tags":["Criminal Law – Offences – Criminal breach of trust by employee","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-02","court":"District Court","case-number":"DAC 916394-2021, Magistrate's Appeal No. 9228-2023-01","title":"Public Prosecutor v Lee Wee Yen","citation":"[2024] SGDC 225","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32169-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor","Ragbir Singh Bajwa (Bajwa & Co) for the Accused."],"timestamp":"2024-09-23T16:00:00Z[GMT]","coram":"Kamala Ponnampalam","html":"Public Prosecutor v Lee Wee Yen

Public Prosecutor v Lee Wee Yen
[2024] SGDC 225

Case Number:DAC 916394-2021, Magistrate's Appeal No. 9228-2023-01
Decision Date:02 September 2024
Tribunal/Court:District Court
Coram: Kamala Ponnampalam
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Public Prosecutor; Ragbir Singh Bajwa (Bajwa & Co) for the Accused.
Parties: Public Prosecutor — Lee Wee Yen

Criminal Law – Offences – Criminal breach of trust by employee

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9228/2023/01.]

2 September 2024

District Judge Kamala Ponnampalam:

Introduction

1       The accused person, Mr Lee Wee Yen, (“the Accused”) claimed trial to one charge under section 44(1)(a) and punishable under section 44(5)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) (“CDSA”) (“the offence”). For ease of reference, the charge is reproduced below:

You…are charged that you, sometime between the 25th to the 31st day of January 2020, in Singapore, did enter into an arrangement with one Gee Ming Li Jaromel (“Jaromel”), to wit, by using your Industrial and Commercial Bank of China (ICBC) bank account (no. [xxx]) (“ICBC account”) to receive and transfer out RMB 1,518,000 (approximately SGD $300,000) on behalf of Jaromel between 30th January 2020 and 31st January 2020, having reasonable grounds to believe that by the said arrangement, the retention by Jaromel of his benefits from criminal conduct would be facilitated, and having reasonable grounds to believe that Jaromel had engaged in criminal conduct, to wit, offences of cheating under section 420 of the Penal Code (Cap 224), and you have thereby committed an offence under section 44(1)(a) and punishable under section 44(5)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A).

2       At the conclusion of the trial, I was satisfied that the Prosecution had proven its case against the Accused beyond a reasonable doubt. I found the Accused guilty and convicted him on the charge. He was sentenced to 27 months’ imprisonment. The Accused being dissatisfied with the outcome, has appealed against the conviction and the sentence.

Background facts

3       The Accused is a Singapore citizen, aged 43 years, who works as a regional operations manager for Aivo Asia. He is also known as Vince. The Accused was the account holder of an International Commercial Bank of China (“ICBC”) bank account bearing the number [xxx]. This account was solely owned and operated by the Accused (“the Accused’s ICBC account”).[note: 1]

4       Sometime in January 2020, Gee Ming Li Jaromel (“Jaromel”) and Kato Hitoshi (“Kato”) conspired to deceive one Dominic Chen Jiajie (“Dominic”) into transferring the equivalent of SGD$300,000 in Renminbi into the Accused’s ICBC account. Their plan was to find a Bitcoin buyer in Singapore and for Kato to pose as a Bitcoin seller. The transaction amount was to be set at SGD$300,000. When the Bitcoin buyer produces the cash amount of SGD$300,000 for the purchase of the Bitcoins, they would deceive Dominic into believing that they were performing a genuine Bitcoin transaction, when in fact Kato had no Bitcoins for sale. They would then request Dominic to transfer the equivalent of SGD$300,000 in Renminbi into the Accused’s ICBC account in return for the cash amount of SGD$300,000 by saying that the Bitcoin owner resides in China and needs to be paid in Renminbi. However, once the money was transferred into the Accused’s ICBC account, Kato would claim that the money had not been received, and Jaromel and Kato would then make a hasty exit. Thereafter, Jaromel and Kato would take the Renminbi which was received into the Accused’s ICBC account and split it equally between the two of them.[note: 2]

5       As planned, sometime between 25th to 30th January 2020, Jaromel approached the Accused and requested for the use of his ICBC account to receive the Renminbi and thereafter for the Accused to transfer out the Renminbi. The Accused was told that these were monies involved in a Bitcoin transaction.[note: 3] The Accused agreed and provided his ICBC account number in the WhatsApp chatgroup which he shared with Jaromel and Kato.

6       On 30 January 2020, sometime in the afternoon, Jaromel and Kato arrived at an office unit located at 1 Commonwealth Lane, #04-20, One Commonwealth, Singapore. There, they met the Bitcoin buyer who showed them the cash amount of SGD$300,000 which was to be used for the purchase of the Bitcoins.[note: 4] The Bitcoin buyer placed the cash on the table. Dominic too arrived at the location and saw the cash on the table. When Kato confirmed to Dominic that the Bitcoin transaction would proceed, Dominic instructed his counterparts in China to transfer RMB 1,518,000 (equivalent to approximately SGD$300,000) to the Accused’s ICBC bank account. The bank account number was given to Dominic by Kato.[note: 5]

7       After the money was transferred into the Accused’s ICBC account, Kato left the office unit and did not perform any Bitcoin transfer. The Bitcoin buyer did not allow Dominic to take the SGD$300,000 which was on the table. A heated argument ensued and the police was summoned. Jaromel was arrested a few hours later. Kato too was arrested on the same day.[note: 6]

8       Prior to his arrest, Jaromel had called the Accused on the phone and told the Accused that the monies had been transferred into the Accused’s ICBC account. The Accused logged into his ICBC bank and saw that a total of RMB 1,518,000 had been transferred into his bank account from four different accounts. The Accused became worried that his ICBC bank account would be frozen and told Jaromel to take back the money.[note: 7] Jaromel offered to split the money with the Accused in an attempt to get the Accused to cooperate. Thereafter, Jaromel was arrested and the Accused was unable to contact him.

9       Subsequently, one Lao Ying contacted the Accused via WeChat and instructed the Accused to transfer the monies into three different bank accounts. Pursuant to the instructions which he received from Lao Ying, between 30th to 31st January 2020, the Accused made six outgoing transfers from his ICBC account amounting to RMB 1,518,000.[note: 8] The six outgoing transfers were made to three separate accounts[note: 9] which were different from the four accounts from which the monies were received[note: 10]. The Accused was subsequently arrested by the police on 8 February 2020.

10     Jaromel and Kato were each charged with the offence of cheating in furtherance of their common intention under section 420 read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“the cheating offence”). Kato pleaded guilty to the charge and was sentenced to 40 months’ imprisonment. Jaromel faced other charges to which he pleaded guilty. The cheating offence was taken into consideration for purposes of sentencing. He was sentenced to a total of 66 months’ and 2 days’ imprisonment.

The Prosecution’s Case

11     The Prosecution’s case was that the sum of RMB 1,518,000 received into the Accused’s ICBC account represented the benefits of Jaromel’s criminal conduct, which was the cheating offence perpetrated against Dominic. When the Accused agreed to receive these monies into his ICBC account and then to transfer out the same, he had facilitated Jaromel’s retention of the benefits of his criminal conduct. The Accused had done so having reasonable grounds to believe that Jaromel was engaged in criminal conduct and that the monies to be received into his ICBC account constituted Jaromel’s benefits from this criminal conduct. The offence was completed when the Accused transferred out the entire sum from his account into three different accounts as instructed by a person known to him only as Lao Ying.

12     The Prosecution led evidence from the three persons involved in the cheating offence – Kato, Jaromel, and Dominic. They also adduced in evidence the three statements recorded from the Accused during police investigations as well as the transaction records of the monies transferred into and out of the Accused’s ICBC account .

The Defence’s Case

13     The Defence denied any involvement by the Accused in the cheating offence. It was asserted that the Accused was not aware of Jaromel’s and Kato’s plan to deceive Dominic into transferring the Renminbi into the Accused’s ICBC account. The Accused had given his ICBC bank account number to Jaromel in good faith and never suspected that Jaromel would use the account to receive the benefits of his criminal conduct. Jaromel was a friend whom he trusted and the Accused had no reason to believe that by receiving and transferring the monies into and out of his ICBC account, he would be facilitating Jaromel’s retention of his ill-gotten gains. The Accused was the sole witness for the Defence.

The applicable law

14     The relevant statutory provision reads as follows:

Assisting another to retain benefits from criminal conduct

44.—(1)  Subject to subsection (3), a person who enters into or is otherwise concerned in an arrangement, knowing or having reasonable grounds to believe that, by the arrangement —

(a)      the retention or control by or on behalf of another (referred to in this section as that other person) of that other person’s benefits from criminal conduct is facilitated (whether by concealment, removal from jurisdiction, transfer to nominees or otherwise); or

(b)     that other person’s benefits from criminal conduct —

(i)     are used to secure funds that are placed at that other person’s disposal, directly or indirectly; or

(ii)    are used for that other person’s benefit to acquire property by way of investment or otherwise,

and knowing or having reasonable grounds to believe that that other person is a person who engages in or has engaged in criminal conduct or has benefited from criminal conduct shall be guilty of an offence.

(2)     In this section, references to any person’s benefits from criminal conduct include a reference to any property which, in whole or in part, directly or indirectly, represented in his hands his benefits from criminal conduct.

(3)     Where a person discloses to an authorised officer his knowledge or belief that any property, funds or investments are derived from or used in connection with criminal conduct or any matter on which such knowledge or belief is based —

(a)     if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he shall not be guilty of an offence under this section if the disclosure is made in accordance with this paragraph, that is —

(i)     it is made before he does the act concerned, being an act done with the consent of the authorised officer; or

(ii)    it is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it;

(b)     the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by law, contract or rules of professional conduct; and

(c)     he shall not be liable in damages for any loss arising out of —

(i)     the disclosure; or

(ii)    any act done or omitted to be done in relation to the property, funds or investments in consequence of the disclosure.

(4)     In any proceedings against a person for an offence under this section, it is a defence to prove —

(a)     that he did not know and had no reasonable ground to believe that the arrangement related to any person’s proceeds derived from criminal conduct;

(b)     that he did not know and had no reasonable ground to believe that, by the arrangement, the retention or control by or on behalf of the relevant person of any property was facilitated or, as the case may be, that, by the arrangement, any property was used as mentioned in subsection (1);

(c)     that —

(i)     he intended to disclose to an authorised officer such knowledge, belief or matter as is mentioned in subsection (3) in relation to the arrangement; and

(ii)    there is reasonable excuse for his failure to make disclosure in accordance with subsection (3)(a);

(d)     that, in the case of a person who was in employment at the time in question and he enters or is otherwise concerned in the arrangement in the course of his employment, he disclosed the knowledge, belief or matter as is mentioned in subsection (3) to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.

(5)     Any person who commits an offence under this section shall be liable on conviction —

(a)      if the person is an individual, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or to both; or

(b)     if the person is not an individual, to a fine not exceeding $1 million or twice the value of the benefits from criminal conduct in respect of which the offence was committed, whichever is higher.

[Act 51 of 2018 wef 01/04/2019]

[applicable subsections in bold]

15     It was agreed between parties that the elements required to be established under this provision are set out in the High Court case of Ang Jeanette v PP [2011] 4 SLR 1. The Court held at [49] that to make out an offence under section 44(1)(a), the Prosecution must prove as part of the actus reus the following:

a)     the accused has entered or is otherwise concerned in an arrangement;

b)     which (i) facilitates the retention or control by or on behalf of another (“that other person”) of (ii) that other person’s benefits of criminal conduct; and

c)     that other person is a person who engages in or has engaged in criminal conduct or has benefited from criminal conduct.

16     The Court further held at [56] that the Prosecution has to show that there was some criminal conduct from which the moneys were derived. If the conduct occurred in Singapore, it has to constitute an offence listed under the Second Schedule in order to come within the meaning of “criminal conduct”.

17     As for the mens rea element of having reasonable grounds to believe, the Court at [70] adopted the meaning ascribed to the phrase in Ong Yew Beng v PP [2003] 1 SLR(R) 536 that having “reason to believe” involved a “lesser degree of conviction than certainty but a higher one than speculation”. In applying the test, the court must assume the position of the actual individual involved (ie, including his knowledge and experience), but must reason (ie, infer from the facts known to such individual) from that position like an objective reasonable man.

18     On the issue of proof of “criminal conduct”, the Court had elaborated at [58] that circumstances could well arise where the only logical inference to any reasonable person is that the moneys involved in the arrangement are criminal property, and that the other person engages in, or has engaged in, or has benefited from, criminal conduct.

19     The Court in Ang Jeanette v PP concluded at [71] that the offender in that case clearly had reasonable grounds to believe that the moneys she was dealing with were the benefits of criminal conduct. The circumstances under which she received the money and her instructions were highly suspicious. Her unwillingness to remit any more money after her last assignment clearly indicated that she thought that she was aiding in the retention of what she reasonably believed were benefits of criminal conduct.

Issues to be determined

20     The key issues to be determined at this trial are as follows:

a)     whether the Accused had entered into an arrangement with Jaromel to receive and transfer out Renminbi from his ICBC account;

b)     whether Jaromel had engaged in criminal conduct;

c)     if Jaromel had engaged in criminal conduct, whether the arrangement with the Accused had facilitated the retention or control by Jaromel of Jaromel’s benefits of his criminal conduct; and

d)     when the Accused entered into the arrangement with Jaromel, whether the Accused had reasonable grounds to believe that Jaromel had engaged in criminal conduct and that the Renminbi were the benefits of his criminal conduct.

21     The first three issues deal with the actus reus of the offence while the last issue concerns the mens rea requirement for the offence.

The actus reus is undisputed

22     The Accused does not deny that he had an agreement with Jaromel pursuant to which he received and transferred out Renminbi through his ICBC account. Sometime between 25th and 30th January 2020, Jaromel had approached him and asked him for the use of his ICBC account. The Accused readily agreed and furnished his account details to Jaromel. On 30 January 2020, the Accused received a total of RMB $1,518,000 into his ICBC account. Hours later, on the same day and in the early hours of the following day, the Accused transferred out the entire sum. The transaction records, Exhibits P2, P3, and P4, show that monies were received from four separate accounts into the Accused’s ICBC account and were later transferred out into three different accounts.

23     Jaromel does not dispute that the sum of RMB 1,518,000 channelled through the Accused’s ICBC account constituted his benefits from criminal conduct. Jaromel admitted that together with Kato, they had deceived Dominic into believing that they were involved in a genuine Bitcoin transaction and that they would receive the cash amount of S$300,000 produced by the Bitcoin buyer which would be given to Dominic in exchange for Renminbi. By such manner of deception, Jaromel had dishonestly induced Dominic to transfer RMB 1,518,000 into the Accused’s ICBC account.

24     The RMB 1,518,000 which went through the Accused’s ICBC account constituted Jaromel’s benefits from the cheating offence which is listed as a “serious offence” under the Second Schedule to the CDSA and therefore satisfies the statutory definition of “criminal conduct” under the CDSA. The Accused had through his arrangement with Jaromel, facilitated Jaromel’s retention and control of the benefits of Jaromel’s criminal conduct.

The Accused had the requisite men rea

25     The mens rea element specified in the charge is “having reasonable grounds to believe”. The Court in Ang Jeanette v PP defined this element as the “lesser degree of conviction than certainty but a higher one than speculation”. The Court elaborated that in assessing whether the Accused possessed the requisite mens rea, the court needs to assume the position of the actual individual involved (ie, including his knowledge and experience), but must reason (ie, infer from the facts known to such individual) from that position like an objective reasonable man. Applying this test, the Court in Ang Jeanette v PP held that the offender in that case clearly would have found the circumstances of the transaction highly suspicious and would have had reasonable grounds to believe that the moneys she was dealing with were the benefits of criminal conduct.

26     The evidence in the present case similarly pointed to highly suspicious circumstances which would have given the Accused reasonable grounds to believe that Jaromel was engaged in criminal conduct and the monies to be received into his ICBC account were derived from Jaromel’s criminal conduct.

The suspicious circumstances

27     The Accused had past work experience in different areas of business. He had worked as a night club operator. He had set up an F&B business venture with Jaromel. The business venture known as Epic F&B failed and resulted in a police report being lodged against him. The Accused had also opened and operated his China bank account, ie the ICBC account, to carry out business with people in China.[note: 11] In short, the Accused was a seasoned businessman and not a naïve or gullible individual inexperienced in the ways of business and commerce. He would be familiar with how a transaction in foreign currency would typically be conducted.

28     In the present case, there were several red flags which should have indicated to the Accused that the request from Jaromel was not only unusual but downright suspicious and warranted caution and further enquiry. It was not how a normal foreign currency transaction would be carried out. The Accused ignored all the warning signs.

Jaromel’s request to use the ICBC account was suspicious on several levels

29     Sometime between 25th and 30th January 2020, Jaromel met the Accused and asked for the use of his ICBC account to receive and transfer out Renminbi. Jaromel made some vague and passing reference to a Bitcoin deal but provided no details.[note: 12] Neither did he specify the amount of money to be channelled through the account beyond stating that it would be ji wan in Chinese, meaning a few tens of thousands of Singapore dollars.[note: 13] This lack of details should immediately have caused the Accused to be wary. He had acknowledged during cross-examination, that Bitcoin was a cross-border currency and the source of funds for a Bitcoin transaction could potentially be ‘dirty’.[note: 14] Such awareness ought to have prompted the Accused to enquire further, but he did not. He immediately agreed to Jaromel’s request.[note: 15] His reason was that Jaromel was a friend whom he trusted.[note: 16]

30     I agreed with the Prosecution that an unsolicited request to “lend” your bank account to receive and transfer out funds, regardless of the purpose, would objectively be suspicious to any reasonable person.[note: 17] It begs the question of why the monies could not be converted into Singapore dollars before they were remitted to Jaromel or, why Jaromel could not have opened his own foreign currency account/Renminbi bank account to receive the monies. These would have been the logical ways to receive funds from a legitimate business transaction. Not the circuitous route proposed by Jaromel to funnel the funds into an account belonging to a person who was unrelated to the transaction. These were clearly suspicious circumstances which should have alerted the Accused.

31     It is baffling why the Accused readily agreed to Jaromel’s request without enquiring further. This was the first time that Jaromel had made such a request.[note: 18] There was no similar prior request or transaction for the Accused to reference or rely on. If there had been a similar previous arrangement with Jaromel which had been concluded without incident, the Accused could then cite that as a basis for his unquestioning trust, but there was none. A reasonable man in similar circumstances would minimally have asked Jaromel: 1) who was sending the money, 2) where was the money coming from, 3) how much was to be received into the account, and 4) how and when should the monies be transferred out. The Accused’s stock answer for why he made no enquiries was that Jaromel was a friend and he trusted him.

32     It was also the Accused’s testimony that his ICBC account was obtained with much difficulty and he was careful not to do anything to jeopardize the account as it was important to him.[note: 19] Yet he willingly provided his account to Jaromel without verifying how exactly his account would be used.

33     When Jaromel asked to use his ICBC account, he had mentioned that the amount involved was a few tens of thousands of Singapore dollars without specifying the exact amount. The Accused initially claimed that he took this to mean anything less than SGD $50,000 but later conceded that “a few tens of thousands of Singapore dollars” could be as much as SGD$100,000 which is equivalent to about RMB 500,000, an amount which had shocked him when he found it deposited into his account. He became afraid that his account would be frozen. Given his concern for his ICBC account, it bears repeating that it is puzzling why the Accused agreed to Jaromel’s request without first enquiring and verifying the exact amount of Renminbi to be received into the ICBC account.

34     The only conclusion to be drawn is that the Accused chose to be wilfully blind to the suspicious nature of the transaction. There were clear signs which cast doubts on the legitimacy of Jaromel’s Bitcoin transaction. The deliberately vague request from Jaromel devoid of details was a clear red flag. The only reasonable response in this situation would be to enquire further and get more details, something which the Accused omitted to do.

The Accused’s problematic past experience with Jaromel

35     The Accused’s sole defence was that he trusted Jaromel. He maintained that Jaromel was a good friend whom he trusted implicitly. Yet, this defence of blind faith was not stated in any of the three statements which were recorded from him in the course of investigations. These statements, Exhibits P5, P6, and P7, were admitted in evidence without any challenge to their accuracy and voluntariness.

36     In his second statement, P6, which was recorded on 30 April 2020, about three months after the transaction, the Accused was confronted with information obtained from Jaromel:

Q18:      Jaro informed Police that there was a plot between himself, Kato and yourself to cheat the money changer. What do you have to say?

A18:      No. I want to say that if I have the intention or if I really wanted to cheat people, I will not use my own bank account because it will trace to me.

37     Here, the Accused was quick to defend himself and assert that he had no intention to cheat. Earlier on in the same statement, the Accused was asked:

Q10:      Did you provide your bank account to other people other than Jaro?

A10:      No.

38     This question would have been the perfect opportunity for the Accused to state his defence of well-held trust in Jaromel, but he failed to do so. Clearly, this defence was an afterthought which had occurred to him long after the statements were recorded. It was something which he had conjured up to explain away his ready acceptance of Jaromel’s request.

39     The other plank of the Accused’s defence was that Jaromel was quite a reputable guy .. was a PAP member, .. accountant .. and his knowledge on business is quite respectful.[note: 20] This gave him further reason to trust Jaromel. Once again I accepted the Prosecution’s arguments that being a “reputable guy” and a “popular guy” does not in any way remedy the suspicious nature of Jaromel’s request. If anything, it invites more questions as to why a “reputable guy” would be making such a suspicious request. It is trite that being a grassroots member, an accountant or even someone with business experience is not an assurance that the individual would not engage in criminal activity.

40     Beyond these bare assertions, the Accused did not produce any evidence to show that Jaromel was indeed trustworthy. In fact, the converse appeared to be true. Apart from casual social interactions, the Accused’s only other interaction with Jaromel in the past was his failed business venture with him. This ended with the Accused being investigated by the police on suspicions of cheating. The Accused had declared in his first statement that Jaromel gave me a lot of problems. In his third statement recorded almost one and a half years later on 2 August 2021, when the Accused was asked about this claim, the Accused said that after he was investigated for cheating the company, he was not close to Jaromel anymore. The Accused said, I also do not want to join him in any other business that he approaches me. But I still on talking terms purely as a friend. This is in direct contrast to the Accused’s defence at the trial that he trusted Jaromel completely.

41     The Accused had gone through a difficult relationship with Jaromel. It had understandably made him cautious of any further business involvement with Jaromel. The objective reasonable man in the Accused’s shoes would have been slow to agree to any request from Jaromel which was remotely associated with a business transaction such as a Bitcoin deal. He would have made further enquiries to allay his concerns. The Accused however did the opposite. He ignored all signs which pointed to a dubious proposal and promptly acceded to Jaromel’s request. The Accused’s omission to make the enquiries to verify strongly suggests that he had wilfully ignored the signs indicating that Jaromel was engaged in criminal conduct and that the Renminbi represented the benefits of his criminal conduct.

Jaromel’s offer of money for the bank account

42     Jaromel testified that he had made a monetary offer to the Accused to entice him to allow the use of his ICBC account.[note: 21] The extract from Jaromel’s evidence-in-chief is reproduced below:[note: 22]

Q

And I’m not sure if I asked you this previously, but what did you---what, if anything, did you offer the accused for using his bank account? Did you offer him any commission or reward?

A

Yes, I did.

Q

What did you offer him?

A

I---I remember that---what was spoken was the---the---the majority of the share would go to Kato, and then the---the---remember whether was it $50,000, I told him that “I’ll give you $50,000 for just using your account. ”Yah.

Court:

You said “what was spoken”. What do you mean by “spoken”?

Witness:

I’m sorry, what I meant was the---this---what I told him was that I will give him $50,000 for using his bank account. That’s just to make things simple. Yes.

Q

And how did you communicate this to him, was it in person, or was it over the phone?

A

I can’t remember specific---specifically.

Q

Okay. Was this reward and commission offered to him before or after he agreed to lend you the bank account?

A

That would be before, yah, because I had to entice him to let me use his account, right? So, I told him I---suppose it’s before.

Q

And was Kato present when you made this offer to Vince?

A

Can’t recall.

Q

Okay. So, if I summarise, the arrangement was that majority of the share would go to Kato and you said you offered Vince $50,000 to use his bank account?

A

Yes, I did.



43     During cross-examination, Jaromel qualified that he couldn’t be certain whether he was earnest when he made such an offer or of the amount which he had offered.[note: 23]

Q

Alright. Now, I am going to ask you questions regarding this alleged payment, offer of $50,000 to Vince to entice him to open the account. I’m just going to ask you some questions there.

A

Go ahead.

Q

Is your memory a bit sketchy about what happened there?

A

Yah, I told---I---I mentioned before this that, you know, everything was done recklessly. So, this offer also was done in desperation, I would suppose.

Q

Now, there is---is there some thought as to whether you could have even made that offer, considering the fact that you have---you haven’t told him anything about any plan, or any amount of money, to that extent? You haven’t mentioned 300,000 to him, right?

A

No, I haven’t.

Q

So---

A

And I would suppose that---

Q

It doesn’t make sense---sorry, it doesn’t make sense to suddenly say “I offer you $50,000”, correct? And you are---

A

In---

Court:

Sorry. At which point did you offer him $50,000?

Singh:

Yes. Maybe I should---thank you, Your Honour.

Q

Maybe I should establish---there is some confusion about the $50,000, right---

Court:

No.

Q

---so at what point of time do you actually make this offer, if at all, or are you mistaken?

A

I could be mistaken, but I think I---I made this offer when I desperately needed an account. But, you know, when I made this offer, I don’t think Vince even believed it, this thing would---like, I would give him $50,000. You get what I mean? It’s just like, “Hey, can you give me your account and I will pay you $50,000?” We are at that level of closeness as friends, I would suppose he was just thinking that I was just jesting.

Q

Right, now, I’m still on this $50,000, right. Think carefully; could you be mistaken when you say that you actually had to entice him, given the fact that he trusted you and he was quite happy to lend you his bank account? Why would you even offer him anything? He was quite cooperative, he wanted to---

A

Yes, I agree. Perhaps it was just me being a loudmouth, I just, “Hey, I’m going to give you $50,000”. Yah.

Q

Perhaps you never said it, you are mistaken now. Is that a possibility?

A

As I mentioned, the---my memory is a bit sketchy. So, it might be a possibility.

Q

A possibility, right. In fact, when the learned DPP cross-examined you, the figure of 50,000 somehow came down to 5 or 10,000 as well, right?

A

As I mentioned, my memory is not 100% clear---

Q

Yes.

A

---so I would agree with what you just said.

Q

See, what it appears to me is this, correct me if I’m wrong. You may have had this intention of rewarding him 50,000 or 10,000 or 5,000, whatever the figure was, look, it was in your mind, but never communicated to him at the time when you asked him to give you the account. Is that possible? It was really in your mind. Because you did not know how much you were going to make.

A

I would agree with you. But I really can’t remember---can’t remember.

Q

Alright. So now your position on the 50,000, as an enticement, is something that you can’t really remember. Correct?

A

I would agree with you.

Q

Thank you.



44     Following re-examination by the Prosecution, the Defence posed more questions by way of cross-examination to Jaromel. Jaromel responded that he may have made the monetary offer to the Accused to persuade the Accused, but perhaps not in a serious way.[note: 24]

Q      Now, Mr Jaromel, I just---I just want to put it to you, because there is a lot of confusion about your evidence, but I want to put it to you that my instructions are that you did not entice my client with any monetary reward. You can agree or disagree. That’s my case. You did not offer him any money.

A      I need to say that even if I did, I wasn’t serious about it. It was something that I said in desperation. So I wouldn’t put it---I want to put it on record that it would be something that I might have said, I might not have said, but even if I said it, it wouldn’t be something serious, it would be like “Hey, please give me your bank account, I will give you $50,000, I really need your bank account”, and him being reluctant, I tried everything under the sun to ask him for his bank account. So yes, that---I---I would put it just---that would be my position, your Honour.

45     It is evident that Jaromel did not retract his initial testimony that he had made a monetary offer to the Accused because he had tried everything under the sun to ask him for his bank account. He simply clarified that it may have been something which he had said in jest. As pointed out by the Prosecution, Jaromel had no reason to lie. He never tried to implicate the Accused. If anything, he went to great lengths to absolve the Accused of any involvement in the plot to cheat Dominic.

46     The Accused on the other hand flip-flopped on whether Jaromel had made such an offer. During his evidence-in-chief, the Accused denied that Jaromel had offered him an incentive to provide his ICBC account.[note: 25] In cross-examination he merely said that he can’t recall if Jaromel had made such an offer.[note: 26] He no longer refuted the possibility of a monetary offer. In the final assessment, I was persuaded that there may have been some mention of a financial reward for the Accused’s ICBC account. It may not have been a serious offer. Such an offer for a personal favour would have made the already suspicious request from Jaromel even more suspect.

The shared WhatsApp chatgroup

47     There was a common WhatsApp chatgroup involving Kato, Jaromel and the Accused. This chatgroup was created “for the purpose”[note: 27] of corresponding about the transaction using the Accused’s ICBC account. The Accused had provided his ICBC bank account details on this chatgroup. The Accused further testified that Kato and Jaromel discussed their Bitcoin deal in this chatgroup.[note: 28] There was a suggestion that it was possible that the Accused may have received information about the cheating plot during the chatgroup discussions between Kato and Jaromel. However, this was mere speculation with no actual evidence of the fact. I therefore placed no weight on the evidence relating to the shared WhatsApp chatgroup and the possibility of the Accused deriving information relating to the cheating plot from the chatgroup.

The Prosecution witnesses were reliable

48     The prosecution witnesses were reliable and I accepted their evidence without reservation. Jaromel in particular, was keen to exonerate the Accused of any blame in the cheating offence. At the end of his testimony, Jaromel addressed the Court and pleaded for leniency on behalf of the Accused.[note: 29] That said, Jaromel did not exaggerate or embellish his evidence in order exculpate the Accused. If he did not know or could not recall, he stated as much. Likewise, Kato candidly admitted to his role in the cheating scam. He did not shift the blame to Jaromel or to the Accused. Similarly, Dominic gave a straightforward account which corroborated Kato’s and Jaromel’s evidence that he was dishonestly induced by the two of them to transfer RMB 1,518,000 into the Accused’s ICBC account. The Defence accepted the evidence of the prosecution witnesses without challenge. It was never the Defence’s position that the witnesses were untruthful or unreliable.

The Accused was an unreliable witness

49     By contrast, the Accused was an unreliable witness. His account was fraught with inconsistencies. It began with the statements recorded from him in the course of investigations.

50     The first statement, P5, was recorded on 8 February 2020, about a week after the Accused had transferred the monies out of his ICBC account. In this statement, the Accused stated that it was Kato who had requested for his ICBC account and not Jaromel. He had agreed to Kato’s request because he knew that Kato dealt with Bitcoins when he was in Taiwan. So, he thought that it was okay for Kato to use his account. The Accused claimed that he later became worried when he discovered that the amounts deposited into his ICBC account were large, but he did not think to report the matter to the police because he believed that Kato will not do anything illegal – Kato will tell A is A, B is B, meaning that Kato does not lie. This account that Kato had approached him for his ICBC account and his firm belief in Kato’s integrity were abandoned in the subsequent statements.

51     The second statement was recorded more than two months later on 30 April 2020. In this statement, the Accused claimed that it was Jaromel who had approached him and had requested for the use of his ICBC account for some Bitcoin business. When he was confronted with the previous statement, the Accused merely said, I confirmed Jaro is the one who approached me. He added that he was aware that both Kato and Jaromel were involved in a Bitcoin deal but it was Jaromel who contacted him. The Accused gave no clear reason for why he had named Kato in his first statement.

52     His attempts to explain away the discrepancy during his cross-examination by the DPP were not any more successful. The Accused testified that he was injured and lying in bed in hospital when the first statement was recorded from him.[note: 30] Kato was then at the forefront of his mind because someone had mentioned Bitcoin and then kept mentioning Kato’s name. That is why he used Kato’s name.[note: 31] The Accused’s reasons were plainly absurd. First, there was no evidence to support the Accused’s claim that someone kept mentioning Kato’s name. Second, the Accused’s explanation made no sense at all. The mere mention of Bitcoin and Kato’s name should not influence him to make a false statement. The question asked of him was a simple one – who approached you to use bank account [xxx]. What was the purpose to use this bank account? There is no reason why he could not have responded truthfully and given Jaromel’s name.

53     His injuries had not constrained him from accurately providing his personal particulars and the background facts. He could have similarly given an accurate account of who had approached him for his ICBC account. I accepted the Prosecution’s submission that the Accused had given Kato’s name in his first statement because he thought that it would make for a more convincing story given Kato’s prior history with Bitcoin deals. He sought to rely on Kato’s Bitcoin experience to justify his ready agreement to the request for his ICBC account.

54     Another example of the Accused’s inconsistent testimony was when he gave evidence in relation to Jaromel’s monetary offer for his ICBC bank account. During his evidence-in-chief, the Accused denied that Jaromel had offered him an incentive to provide his ICBC account. In cross-examination he changed his stance and said that he can’t recall if Jaromel had made such an offer.

55     The Accused also exhibited a tendency to embellish his evidence. When questioned about his transfer of the Renminbi to three separate bank accounts, the Accused initially claimed that his intention was to return the money to the rightful owner or the victim. After he was confronted with the transaction slips showing that the monies were not transferred to the accounts from which they were received but to a different set of bank accounts, the Accused conceded that his only intention was to get the money out of his ICBC account. He did not care who received the monies.[note: 32]

56     The Accused was evasive even when answering straightforward questions. When asked about whether Kato was involved, he did not give a direct answer, at times suggesting “not really” but eventually admitting that he “did not know” and “never asked him”. When asked about why Jaromel wanted a bank account in China to receive Renminbi, the accused claimed that there was “nothing to ask”, only to later admit that he “did not know” and “did not ask”.[note: 33]

57     On the whole, the Accused had shown himself to be an unreliable witness who was fast and loose with the truth. I treated his evidence with caution and placed little weight on it.

Conclusion on conviction

58     The evidence at this trial overwhelmingly pointed to the Accused’s guilty mind. He had a bad history with Jaromel. His previous business venture with Jaromel failed and resulted in the police investigating him for criminal offences. The Accused declared in his statements that he would not want to have any other business related dealings with Jaromel. Despite this, when Jaromel requested for his bank account, he agreed without hesitation. It was a bare request with no details beyond the fact that it was monies to be received from a Bitcoin deal. It was a request to use his ICBC account which according to the Accused was very important to him and he was careful not to do anything to compromise the account. It was a request from someone he no longer wished to have any business dealings with. Any reasonable man in the Accused’s position would have made enquiries and sought some verification before handing over his account details. The Accused did none of that.

59     At trial, the Accused proffered an improbable defence of well-held trust in Jaromel. It was a defence which was devoid of logic and did not stand up to scrutiny. It was at odds with his statements recorded during investigations. The Accused was unable to provide a satisfactory explanation for the inconsistencies. The only conclusion to be drawn from these circumstances was that the Accused was being untruthful. His defence of a bare trust in Jaromel was a fabricated afterthought invented to mask the fact that he had been wilfully blind to the clandestine nature of Jaromel’s request. The Accused had reasonable grounds to believe that Jaromel was engaged in criminal conduct and the monies to be received into his account were the benefits of that criminal conduct.

60     At the close of the trial, I was satisfied that the Prosecution had proven its case beyond a reasonable doubt. I found the Accused guilty and convicted him on the charge.

Sentence

Antecedents

61     The Accused was untraced for prior criminal convictions.

Prosecution’s submission on sentence

62     The Prosecution submitted that the dominant sentencing consideration for offences under section 44(1)(a) CDSA is general deterrence. They relied on the five-step sentencing framework in Huang Ying-Chun v PP [2019] 3 SLR 6062 (“Huang Ying-Chun”). Huang Ying-Chun dealt with section 44(1)(a) CDSA offences which involved the laundering of cash proceeds of cheating offences committed in Singapore. The offender in Huang Ying-Chun collected cash from victim-mules before handing the monies over to other runners, who would eventually carry the monies out of Singapore. In total, the offender collected and handed over a total of S$957,000 over two weeks. He was sentenced to 66 months’ imprisonment.

63     The five-step sentencing framework in Huang Ying-Chun was as follows:

a)     First, the court should identify the level of harm, and the level of culpability.

b)     Second, the court should identify the applicable indicative sentencing range.

c)     Third, the court should identify the appropriate starting point within the indicative sentencing range.

d)     Fourth, adjustments should be made to the starting point to take into account offender-specific factors.

e)     Fifth, further adjustments should be made to take into account the totality principle

64     The Prosecution argued that the principal factual elements identified in the Huang Ying-Chun framework were found in the present case:

a)     The laundering of cash or monies amounting to RMB 1,518,000,

b)     which cash and monies are the proceeds of the cheating offences committed in Singapore by Jaromel and Kato, and

c)     the involvement of a runner who collects cash in Singapore and dissipates the monies, for example, by remitting the monies or handing them to other persons to remove the monies from the jurisdiction. Here the Accused had used his ICBC account to dissipate the sum of RMB 1,518,000.

65     In assessing the harm and culpability for each offence, the High Court identified a few offence-specific and offender-specific factors:

Offence-specific factors

Factors going towards harm

(a) the amount cheated

(b) involvement of a syndicate

(c) involvement of a transnational

element

(d) the seriousness of the predicate

offence

(e) harm done to confidence in

public administration

Factors going towards culpability

(a) the degree of planning and

premeditation

(b) the level of sophistication

(c) the duration of offending

(d) the offender’s role

(e) abuse of position and breach of

trust

(f) the mental state of the offender

(g) whether commission of offence

was the offender’s sole purpose for

being in Singapore

(h) the offender’s knowledge of the

underlying predicate offence

(i) the prospect of a large reward

Offender-specific factors

Aggravating factors

(a) offences taken into consideration

for sentencing purposes

(b) relevant antecedents

(c) evident lack of remorse

Mitigating factors

(a) a guilty plea

(b) voluntary restitution

(c) cooperation with the authorities



66     The Prosecution submitted that the harm caused by the Accused’s offences must be pegged closer to the top of the moderate band in view of the significant amounts of criminal proceeds that were laundered through his bank accounts. The predicate offence of cheating under section 420 of the Penal Code (Cap 224) was a serious offence that attracts a maximum punishment of 10 years’ imprisonment. The Prosecution cited the following case precedent.

S/N

Case Name

Amount

Harm

1

PP v Ng Siew Wai Carole [2021] SGDC 1483 (“Carole Ng”)

S$27,600

Slight

S$72,050

Moderate

2

PP v Ng Koon Lay [2020] SGDC 1964 (“Ng Koon Lay”)

S$174,750

Moderate

3

PP v Chow Zhi Hong and anor [2020] SGDC 2795 (“Chow Zhi Hong”)

S$369,900

Moderate

4

PP v Cheng Peng-Yu [2019] SGDC 1216 (“Cheng Peng-Yu”)

S$803,000

Severe

5

Huang Ying-Chun

S$957,000

Severe



67     The Prosecution argued that the Accused’s culpability should be pegged at the lower end of the medium band for the following reasons:

a)     The importance of the Accused’s role: The Accused played a critical role in the dissipation of funds by offering his ICBC account for Jaromel’s use, failing which Jaromel would not have been able to retain his criminal proceeds.

b)     Transnational element: The Accused was aware that he was helping an individual based in Singapore, Jaromel, to facilitate a transaction based in China.

c)     The Accused’s mental state: The Accused admitted to having suspicions about the transactions he was performing. In fact, he admitted that he suspected that he was dealing with scam proceeds. Furthermore, despite the warning signs of Jaromel giving him the “barest minimum of details, or lack thereof” when requesting him to serve as a conduit to receive and transfer monies to accounts given by an unknown third party ‘Lao Ying’, he did not make any enquiries as any reasonable person would. By his own admission, he chose to remain wilfully blind to the circumstances.

d)     The prospect of personal gain: Jaromel made a monetary offer to the Accused to entice him to let him use the ICBC account. The evidence showed that an offer was made although whether a specific amount was offered was unclear (there were mentions of S$50,000, $10,000, and $5,000). In fact, it was Jaromel’s evidence that he “tried everything under the sun to ask him for his bank account” out of “desperation”. The inference is that there was a prospect of personal gain or reward that motivated the Accused to assist Jaromel with his ICBC account. It is undisputed that there is no evidence of the Accused actually receiving any monetary reward, and that the promised reward did not materialize. Nonetheless, the High Court in Huang Ying-Chun held that the fact that the offender did not ultimately receive his reward is not to be considered a mitigating factor warranting a reduction in sentence.

68     The Prosecution concluded that for offences falling within the moderate harm and medium culpability, the indicative sentencing range would be 30 to 60 months’ imprisonment. The indicative starting point is 30 to 40 months’ imprisonment. The indicative starting sentence will then have to be adjusted to take into account the offender-specific factors.

69     The Prosecution stated that there were no significant aggravating factors. The Accused was generally cooperative with the authorities during investigations save for the instance when he lied in his initial statement that it was Kato whom he trusted, only to later switch to Jaromel. The fact that the Accused had claimed trial and not taken responsibility for his criminal acts is a relevant consideration, even if not to be taken as an aggravating factor. Some credit may be afforded for his general cooperation with the investigations.

70     The Prosecution submitted that a sentence in the range of 27 to 30 months’ imprisonment is fair and appropriate. It is in line with the post Huang Ying-Chun reported case precedents.

S/N

Case Name

Antecedents

CT/PG

Amount

Sentence

1

Carole Ng

(Appeal dismissed)

Untraced

CT

S$27,600

4 months’ and 2 weeks’ imprisonment (concurrent)

S$72,050

9 months’ imprisonment (concurrent)

2

Ng Koon Lay

(Appeal dismissed)

Untraced

PG

S$47,050

6 months’ imprisonment (consecutive)

S$174,750

12 months’ imprisonment (consecutive)

3

Chow Zhi Hong

(Appeal dismissed)

Untraced

CT

S$369,900

45 months’ imprisonment (consecutive)



71     The Prosecution stated that the closest comparators by virtue of quantum are the cases of Ng Koon Lay and Chow Zhi Hong. The sentencing range of 27 to 30 months’ imprisonment was derived by applying an uplift to the sentence imposed in Ng Koon Lay (18 months’ imprisonment for S$221,800 collectively) given the higher quantum and the fact that the Accused was not entitled to any discount for a plea of guilt. The sentencing range of 27 to 30 months’ imprisonment was also derived by applying a downward adjustment from Chow Zhi Hong (45 months’ imprisonment for S$369,900) given the lower quantum and the absence of the offence-specific factors which were present in Chow Zhi Hong that warranted a higher indicative sentence).

Mitigation

72     The Mitigation Plea set out the Accused’s personal circumstances and pleaded for leniency stating that he had a clean record and was unlikely to reoffend. It was highlighted that the Accused did not ask for nor did he receive any financial incentive.

Defence’s submission on sentence

73     The Defence submitted for a sentence of a fine only and/or a short custodial sentence. It was argued that the harm was slight and the culpability was low. The Defence relied on the following factors.

74     The harm caused was low as it was not entirely clear what eventually happened to the sum of RMB 1,518,000 that was received in the Accused’s ICBC account. The evidence adduced showed that neither Kato nor Jaromel received the proceeds of the crime. Dominic, was unable to clarify what had eventually happened to the money. The loss was not borne by him either The monies may not have been dissipated but could have been returned to the original accounts as stated by Jaromel. As such, the harm is slight.

75     In terms of culpability, the Defence argued that it was low. The Accused was not offered any monetary reward for the use of his ICBC account. There was no syndicate involvement, no runner involved, no sophisticated planning, and no vulnerable victims involved. The duration of the offending was very short and there was no provable loss to anyone.

76     The Defence argued that this case was similar to the “love scam” cases as it involved an element of friendship and trust bordering on foolishness and vulnerability. There were no aggravating factors here, and the Accused had fully cooperated with the police. The Defence reiterated that the harm is slight and the culpability is low thereby falling into the category of a fine and /or a short custodian sentence.

The reply submission on sentence

77     The Prosecution highlighted that the Defence had pegged the harm as slight, primarily on the basis that there is no clear evidence of loss and thus giving rise to the possibility that the money was in fact returned to the rightful owner which is tantamount to making full restitution. The Prosecution argued that this is a mischaracterisation. In Huang Ying-Chun, the Court at [98] stated that the factor to be considered for harm is the amount cheated and not the specific loss being caused. So, it is not about proving the loss. In this case, evidence has been adduced to show that the sum of RMB 1,518,000 which is roughly equivalent to SGD 300,000 was cheated and thereafter dissipated through the ICBC account by the Accused. The Prosecution submitted that while it is correct to say that harm is not exclusively about the amount cheated, it does remain an important factor.

78     In the same vein, the evidence adduced cannot be stretched to mean that restitution has been made. While Dominic testified he did not personally bear the loss but that it was his Chinese counterpart that he was working with who did so, it does not mean that the monies should be taken as having been returned to the original owner or that restitution has been made. There was no evidence of this. The onus is on the Defence to prove on a balance of probabilities that restitution was attempted or made.

79     The Prosecution further argued that the fact that the funds were not recovered or allocated to a particular person precisely proves the point that there was loss and there was dissipation. If there was evidence that the money was recovered or it had gone to a certain party, that would be the basis to then assert that there was some kind of tracing and possibly even restitution. The lack of tracing actually is in fact evidence that there was dissipation and by extension, that would be the loss or the amount cheated that has to be considered by the Court for the CDSA offence.

80     The Prosecution disagreed that the form of culpability in the present case was similar to the genus of cases that relate to love scams. In those cases, there was some element of entrapment, exploitation, and cultivation of trust that was subsequently abused. That was not the case here. Entrapment and exploitation of trust was not present in this case. It was an active and voluntary decision by the Accused to let Jaromel use his ICBC account. There is even some evidence of some promise or prospect of gain from this enterprise. The Prosecution added that the love scam cases were cited to distinguish the present case from those cases in terms of the uplift in the sentence sought.

81     The Defence in their reply submissions reiterated that the Accused was not a party to the cheating plan which was the predicate offence. As for the dissipation of the monies, the Defence argued that the Prosecution’s own witness, Jaromel, had testified that his mother told him that the money had been returned to the source. This evidence was not challenged by the Prosecution. They appeared to be satisfied with that answer. So, the Accused is now entitled to rely on Jaromel’s evidence and to submit that restitution has indeed been made. In these circumstances, the onus is on the Prosecution to show that no restitution was made.

Court’s decision on sentence

82     The prescribed punishment for the offence under section 44(1)(a) of the CDSA is a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or both. I agreed with the parties that the five-step sentencing framework in Huang Ying-Chun applied to the present case. The factual elements were similar. The predicate offence was a cheating scam committed in Singapore. The monies derived from this offence, RMB 1,518,000 which is equivalent to about SGD 300,000, was laundered through the Accused’s ICBC account and thereafter dissipated by the Accused, acting on instructions received from one Lao Ying, into various Renminbi bank accounts. Lao Ying was unknown to the Accused and in conveying those instructions to the Accused, Lao Ying was effectively operating as a runner.

83     Applying the five-step sentencing framework in Huang Ying-Chun, the first step was to determine the level of harm and the level of culpability.

84     I agreed with the Prosecution that the amount cheated was the chief indicator of the level of harm involved. The amount involved here was about SGD 300,000. The Prosecution relied on five case precedents for an indication of the level harm, and I accepted this approach. The case precedents, save for Huang Ying-Chun, involved love scams and police impersonation scams. I found that these cases while having a different factual matrix were still relevant and provided a useful gauge. An amount of S$27,600 was held to be in the slight harm range. Amounts of S$72,050, S$174,750, and S$369,900 fell within the moderate harm range. Amounts of S$803,000 and S$957,000 were assessed to be in the severe harm range. The amount in the present case was about SGD 300,000 and it falls squarely within the moderate harm range. Additionally, the predicate offence of cheating was a serious offence and there was clearly a transnational element there as the monies were received from Dominic’s Chinese counterparts.

85     In assessing the Accused’s culpability, I agreed with the Prosecution that the Accused played a pivotal role in the plot to cheat. Without his ICBC bank account, the plot would have failed. The Accused was aware of the transnational nature of the transaction. He was helping Jaromel in Singapore to receive monies from China purportedly for a Bitcoin deal in China. There was also some evidence of a promise of a monetary reward which the Accused did not deny. When probed under cross-examination, he simply said that he could not recall. I accepted the Prosecution’s argument that the Accused’s culpability was not reduced merely because he did not receive the reward. All considered, I accepted the Prosecution’s submission that the Accused’s culpability fell within the Medium range. The indicative sentences for the various levels of harm and culpability were set out in Huang Ying-Chun.

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86     The present case of moderate harm and medium culpability fell within the range of 30 to 60 months’ imprisonment. Having considered the Accused’s level of involvement which was limited to agreeing to Jaromel’s request on a single occasion and with no further participation in the cheating scam, I agreed with the Prosecution that the indicative starting point within the sentencing range is 30 to 40 months’ imprisonment.

87     The next step was to take into account the offender-specific factors to make the appropriate adjustments to the indicative starting sentence.

88     In terms of the offender-specific considerations, there were no significant aggravating factors. As for the mitigating circumstances, it was noted that the Accused had a clean record and apart from this charge, he was not involved in any other offences. The Accused’s lack of antecedents and lack of TIC charges merited a downward adjustment to 27 months’ imprisonment. This sentence was in accordance with the sentencing precedents cited.

Conclusion

89     The evidence led at this trial unequivocally pointed to the Accused’s guilty mind. His lack of enquiries which any reasonable man in his position would have made showed that he had deliberately ignored the illicit nature of the transaction. His feeble defence of absolute trust in Jaromel failed dismally in the face of evidence to the contrary. The only inference to be drawn from these circumstances is that the Accused had been wilfully blind when there were reasonable grounds to believe that the monies constituted Jaromel’s benefits from his criminal conduct. Having regard to the severity of the offences, the sentence of 27 months’ imprisonment meted out to the Accused is just and appropriate. It is not a crushing sentence.

[note: 1]NE, Day 5 Page 3 Lines 3-7

[note: 2]NE, Day 1 Page 81 lines 4-31, Page 83 lines 1-10

[note: 3]NE, Day 1 Page 83 Lines 1 to 25

[note: 4]NE, Day 1 Page 8 lines 10-23, Page 9 lines 1-16

[note: 5]NE, Day 3 Page 7 Line 24 to Page 8 Line 9

[note: 6]NE, Day 3 Page 7 Line 24 to Page 8 Line 9

[note: 7]NE, Day 5 Pages 10-11 and Page 23

[note: 8]NE, Day 5 Page 63 Lines 1-5 and 12-16

[note: 9]Exhibit P4

[note: 10]Exhibit P3

[note: 11]NE, Day 5 Page 15 lines 21-32, Page 16 lines 1-32

[note: 12]NE, Day 5 Pages 22-23

[note: 13]NE, Day 5 Pages 49-50

[note: 14]NE, Day 5 Page 24 Lines 1-17

[note: 15]NE, Day 5 Page 4 Lines 2-7

[note: 16]NE, Day 5 Page 3 Line 17-22

[note: 17]Exhibit C Prosecution’s Closing Submissions at [16]

[note: 18]NE, Day 1 Page 83 Lines 11 to 20

[note: 19]NE, Day 5 Page 10 Lines 12 and 14

[note: 20]NE, Day 5 Page 17 Line 8-11

[note: 21]NE, Day 1 Page 90 Lines 8-11

[note: 22]NEs, Day 1 Page 89 Line 24 to Page 90 Line 17

[note: 23]NE, Day 2 Page 44 Line 30 to Page 46 Line 28

[note: 24]NE, Day 2 Page 55 Line 22 to Page 56 Line 4

[note: 25]NE, Day 5 Page 3 Lines 28-30

[note: 26]NE, Day 5 Page 49 Lines 9-12

[note: 27]Exhibit P5 at A15

[note: 28]NE, Day 1 Page 84 Lines 9-30, Page 91 Lines 1-29

[note: 29]NE, Day 2 Page 56 Line 20 to Page 57 Line 2

[note: 30]NE, Day 5 Page 26 Lines 27-29

[note: 31]NE, Day 5 Page 30 Lines 17-29

[note: 32]NE, Day 5 Page 60 Lines 23-32, Page 61 Lines 18-19

[note: 33]NEs, Day 5 Page 25 Lines 1-12

"},{"tags":["Criminal Procedure and Sentencing – Sentencing","Penal Code – Voluntarily Causing Hurt – Vulnerable victim – Enhanced sentences under ss 74B(2) and 74C(2)"],"date":"2024-09-16","court":"Magistrate's Court","case-number":"Magistrate Arrest Case 901498 of 2024 and Others","title":"Public Prosecutor v Dinesh S/O Rajalingam","citation":"[2024] SGMC 66","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32168-SSP.xml","counsel":["Yeo Zhen Xiong (Attorney-General's Chambers) for the Prosecution","Accused in Person"],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Christopher Goh Eng Chiang","html":"Public Prosecutor v Dinesh S/O Rajalingam

Public Prosecutor v Dinesh S/O Rajalingam
[2024] SGMC 66

Case Number:Magistrate Arrest Case 901498 of 2024 and Others
Decision Date:16 September 2024
Tribunal/Court:Magistrate's Court
Coram: Christopher Goh Eng Chiang
Counsel Name(s): Yeo Zhen Xiong (Attorney-General's Chambers) for the Prosecution; Accused in Person
Parties: Public Prosecutor — Dinesh S/O K Rajalingam

Criminal Procedure and Sentencing – Sentencing

Penal Code – Voluntarily Causing Hurt – Vulnerable victim – Enhanced sentences under ss 74B(2) and 74C(2)

16 September 2024

Judgement Reserved

District Judge Christopher Goh Eng Chiang:

Introduction

1       The Accused pleaded guilty to five charges under s 323 of the Penal Code 1871 (“PC”). Two charges were for causing hurt to his then girlfriend, victim 1 (“V1”) and three charges were for causing hurt to V1’s son, victim 2 (“V2”), who was then under four years old at V1’s home. As the Accused was in an intimate relationship with V1, the s 323 charges involving her were read with (“r/w”) s 74C(2) of the PC and, as V2 was under the age of 14 years, the charges involving him were r/w s 74B(2) of the PC.

2       Four more charges against the same victims were taken into consideration for the purposes of sentencing (“TIC”). Two TIC charges were for causing hurt to V1, one TIC charge was for causing hurt to V2 and the fourth TIC charge was for criminal intimidation against V1 under s 506 of the PC.

Summary of the facts

3       The proceeded charges involved incidents on three different occasions when the Accused was co-habituating with V1.

1st incident on 16/17 November 2022 (MAC-901498-2024 & MAC-901499-2024)

4       On either 16 or 17 November 2022, while in V1’s home, the Accused lost his patience with V2 as he refused to stop crying. He then slapped V2, who suffered bodily pain.

5       Having heard the slap, V1 came out of the kitchen to stop the Accused. The Accused kicked V1 in the face and threw his mobile phone at her. As a result, V1 suffered a bruise on her right eye and a cut on her nose area.

2nd incident on 18 December 2022 (MAC-901502-2024 & MAC-901503- 2024)

6       In the early morning of 18 December 2022, V2 could not sleep and began crying. This made the Accused angry. He used his mobile phone and hit V2 on his forehead multiple times.

7       Seeing this, V1 tried to intervene. The Accused slapped V1, pulled her hair and kicked her once. V1 felt bodily pain and suffered redness on the left side of her face, near her ear.

8       V2 suffered bodily pain and swelling on his head. It was only when V2’s condition worsened that the Accused allowed V1 to bring V2 to seek medical attention. V2 was admitted to KKH on 21 December 2022, suffering from headache, drowsiness, and persistent vomiting. A CT scan revealed that V2 had a small acute right subdural hematoma. He was also diagnosed with a mild traumatic brain injury resulting in a subdural hematoma and was hospitalized for five days between 21 to 26 December 2022. Prior to the V2’s discharge from hospital, the Accused was informed of the treatment received by the V2 and injuries suffered.

9       At KKH, V1 told the doctors that V2 had possibly fallen in the toilet. V1 did not tell them the truth because the Accused had threatened V1 that he would beat her up if she told the medical personnel the truth (this formed the subject matter of the TIC criminal intimidation charge).

3rd Incident on 3 January 2023 (MAC-901505-2024)

10     On 3 January 2023, at about 1100 hours, V2 felt pain on his forehead and began. This again irritated the Accused.

11     He grabbed V2’s neck and lifted him off the floor. When V1 tried to stop the Accused, he pushed V1 away with his elbow. Eventually, the Accused’s action caused V2 to lose consciousness, resulting in the V2’s head tilting backwards. The Accused stopped choking V2 and placed him on the sofa. The Accused then tried to wake V2 up by blowing air into his mouth and sprinkling water on his face. V2 eventually woke up.

12     V2 was subsequently brought for follow up treatment at KKH where V1 reported that V2 had symptoms of persistent headaches, poor appetite and his frequent vomiting had become worse. V2 was admitted to KKH from 4 to 10 January 2023 when his symptoms gradually improved.

13     During this time, the Accused moved out of V1’s home.

The chronology of when the offences were committed

14     To better appreciate when the offences were committed, (ie. five proceeded and four TIC charges), the following table sets out the chronology of events:

Date

Charge

Victim / Brief Description of harm caused

24 October 2022

TIC

MAC-901497-2024

V1. Slapped her cheek twice

16/17 Nov 2022

Proceeded

MAC-901498-2024

V2. Slapped him on the cheek.

MAC-901499-2024

V1. Threw phone at V1’s face. Causing bruise on right eye and cut at nose area.

21 November 2022

TIC

MAC-901500-2024

V1. Hit V1 on left forearm with a hanger.

MAC-901501-2024

V2. Hit V2 on his body with a hanger.

18 December 2022

Proceeded

MAC-901502-2024

V1. Pulled her hair and kicked her stomach.

MAC-901503-2024

V2. Used mobile phone to hit V2 on his forehead multiple times.

18 December 2022

TIC

MAC-901504-2024

V1. Threatened to beat her up if she told authorities how V2 sustained his injuries.

3 Jan 2023

Proceeded

MAC-901505-2024

V2. Grabbed V2 by his neck and lifted him of the floor causing him to lose consciousness



Antecedents

15     The Accused has numerous antecedents which he admitted to. Excluding the offences he had committed when he was a juvenile, I set out his relevant antecedents thereafter which involved violence or that were violence related:

Date

Offence

Sentence

16/09/2009

s.394 PC. Robbery

s.354A(2)(a) PC. Aggravated outrage of modesty

s.323 PC. Causing hurt (TIC).

RTC

Note: Also convicted for other offences

27/12/2012

s.324 PC. Causing hurt by dangerous weapon or means.

7 months’ imprisonment and caning 3 strokes

18/11/2016

s.354(1) PC. Outrage of modesty

15 months’ imprisonment and caning 3 strokes. years’ imprisonment

Note: Also convicted for other offences

23/08/2019

s.353 PC. Using criminal force on a public servant.

s.353 PC. Using criminal force on a public servant. (TIC)

3 weeks’ imprisonment

Note: Also convicted for other offences

07/06/2021

s.323 PC. Causing hurt (TIC).

NA

Note: Also convicted for other offences



Decision on Sentence

Punishment prescribed by law

16     The punishment prescribed by law for a charge of causing hurt under s 323 of the PC is imprisonment for a term which may extend to three years, or with fine which may extend to $5,000, or with both.

17     Further, as the Accused was in an intimate relationship with V1, and V2 was below 14 years of age, under ss 74C(2) and 74B(2) of the PC respectively, the Accused was liable to enhanced punishment not exceeding twice the maximum punishment prescribed.

The sentencing framework

18     The Prosecution has set out the sentencing framework for offences involving ss 74B and 74C at [8] - [18] of the Prosecution’s Sentencing Position (“PSP”). This is based on the High Court’s decision in GFX v PP [2024] SGHC 140 (“GFX”). I am in general agreement with this framework. This is further elaborated below.

19     In GFX, the offender faced a charge of causing grievous hurt under s 325 r/w s 74B(2) of the PC. On appeal, the High Court at [49] set out the following three-step process to determine the appropriate sentence. This is as follows:

(a)     First, the court is to considers the seriousness of the injury in arriving at an indicative starting point for the s 325 offence (ie “base” offence);

(b)     Second, the court is to make an uplift to the indicative starting point by way of a multiplier to reach the enhanced indicative starting point;

(c)     Thirdly, the court will adjust the indicative enhanced starting point upwards or downwards based on the presence of relevant aggravating and mitigating factors.

20     I agree with the Prosecution that, although the offender in GFX was convicted for an offence of causing grievous hurt, and the enhancement was under s 74B(2) of the PC, the same sentencing framework could not only be utilized for an offence of causing hurt under s 323 of the PC but also where an offender is in an intimate relationship with the victim under s 74C(2) of the PC.

First step: the sentencing framework for offences under s 323 of the PC

21     The first step is to determine the appropriate sentencing range based on the hurt caused. In Niranjan s/o Muthupalani v PP [2023] SGHC 181 (“Niranjan”) at [63], the High Court set out the sentencing ranges for a first-time offender who claims trial to a s 323 PC charge. This is reproduced below for easy reference.

Band

Factors

Indicative sentencing range for first-time offenders claiming trial

1

Low harm: no visible injury or minor hurt such as bruises, scratches, minor lacerations or abrasions

Fines or custodial term up to 8 weeks’ imprisonment

2

Moderate harm: hurt resulting in short hospitalization or a substantial period of medical leave, simple fractures, or temporary or mild loss of a sensory function

Between 8 weeks and 12 months’ imprisonment

3

Serious harm: serious injuries which are permanent in nature and/or which necessitate significant surgical procedures

Between 12 months and 36 months’ imprisonment



Second step: identifying the multiplier for ss 74C(2) and 74B(2) of the PC

(1)   Multiplier for s 74C(2) of the PC (viz V1)

22     The increase in the punishment prescribed by law under s 74C(2) of the PC is meant to impose additional punishment for domestic abuse cases and thus extends to intimate partners. Deterrence is the paramount consideration. The only issue would be to determine the multiplier. The main consideration to determining this would be the extent of this relationship and extent of trust and interdependency between the parties. This is a fact-specific inquiry (PP v Tan Jia Jun Shawn [2022] 5 SLR 560 (“Shawn Tan”) at [17]).

23     I note that V1 and the Accused entered into a relationship sometime in September 2022 and began cohabiting sometime in October 2022 when the Accused moved into V1’s home (see SOF at [5]). I accept that there is some level of trust and dependency which was perhaps higher when compared, for example, to a case where an offender and a victim were in an intimate relationship but not staying together. There may be other factors that could cause the multiplier to increase (or decrease, as the case may be) but in this instant, I was prepared to accept the Prosecution’s submission of a multiplier of 1.5 times.

(2)   Multiplier for s 74B(2) of the PC (viz V2)

24     In GFX, the High Court had, at [43] – [44], set out the appropriate enhancement to be applied for offences r/w s 74B(2) taking into account the victim’s age. This is set out below:

Age of victim

Enhancement (%)

0 – 3 years

76 – 100

Just over 3 years – 6 years

51 – 75

Just over 6 years – 10 years

26 – 50

Just over 10 years – just under 14 years

1 – 25



25     Although GFX was concerned an offence under s 325 of the PC, I agree that there is no reason why the enhancement set out by the High Court should not be equally applicable to an offence under s 323 of the PC. Hence, as V2 was then about three years and nine months old, the Prosecution’s submission of an enhancement of 70% in this instant is appropriate. This would equate to a multiplier of 1.7 times.

Third step: adjusting the indicative enhanced starting points based on the relevant aggravating and mitigating factors

26     In the third step, the offence related aggravating and mitigating factors are considered, as are and the offender related aggravating and mitigating factors, which in this case are the Accused’s antecedents and the TIC charges.

(1)   Offence-related aggravating and mitigating factors

27     In GCX at [47] the High Court set out a list of non-exhaustive factors to be considered. Not all as relevant to the present case. I considered, amongst other things, the following factors:

(a)     the extent of deliberation or premeditation;

(b)     the manner and duration of the attack;

(c)     the use of any weapon / or object;

(2)   Offender-related aggravating and mitigating factors

28     The offender-related aggravating factors concerns the Accused’s antecedents and the TIC charges. The Prosecution sought uplifts ranging from three to six months’ imprisonment for this. I agree that an uplift would be applicable because of:

(a)      The antecedents. The Accused has numerous violence related antecedents. These are set out at [15] of this Judgement.

(b)      The TIC charges. In this case, three of the four TIC charges are for similar offences under s 323 of the PC. In determining the respective uplifts, I note that in two TIC charges, V1 is the named victim while V2 is the named victim in the third TIC charge. The fourth TIC charge is a criminal intimidation charge relating to the 2nd incident on 18 December 2023. I was of the view that this charge would enhance the Accused’s culpability for the charges relating to that incident.

Final step: reduction in sentence for pleading guilty

29     I agree that other than the fact that the Accused had pleaded guilty, there are no other offender-related mitigating factors. As the Accused had pleaded guilty at Stage 1 of the Guidelines on Reduction in Sentences for Guilty Pleas, the full reduction of up to 30% will be accorded to him.

The Prosecution’s sentencing position.

30     Based on the sentencing framework in GFX, the Prosecution is seeking a global sentence of between 9 to 11.5 months’ imprisonment with two sentences of imprisonment to run consecutively. Their sentencing position can be found in PSP at [19] and is summarised below for easy reference:

Charge No (victim)

1st stage: base sentence

2nd stage: after ss 74B/74C enhancement

3rd stage: after aggravating/ mitigating factors

Final stage: sentence after SAP reduction

MAC-901498-2024 (V2)

Up to 2 wks

Up to 1 mth

2 -3 mths

2 – 3 mths

MAC-901499-2024 (V1)

Up to 1 mth

0.5 – 1.5 mths

3.5 – 4.5 mths

2.5 – 3.5 mths

consecutive

MAC-901502-2024 (V1)

Up to 1 mth

0.5 – 1.5 mths

3.5 – 4.5 mths

2.5 – 3 mths

MAC-901503-2024

2 – 3 mths

3.5 – 5 mths

7.5 – 9 mths

5 – 6.5 mths

MAC-901505-2024

2 – 3 mths

3.5 – 5 mths

9.5 – 11 mths

6.5 – 8 mths

consecutive



Applying the framework to the charges

31     In determining the appropriate sentence for each charge, I now proceed to apply the above sentencing framework to the proceeded charges.

Charges relating to the 1st incident on 16/17 November 2022

32     In MAC-901499-2024, the Accused caused hurt to V1. My assessment is as follows:

(a)      Stage 1: hurt caused. V1 suffered a bruise on her right eye and a cut on her nose area. In my view, this injury fell within Band 1 of the framework set out in Niranjan. I agree that the custodial threshold was crossed but I disagree with the Prosecution’s assessment as to the length of the sentence, namely a sentence of “up to one months’ imprisonment”. Instead, I assess the indicative sentence to be slightly more than one week’s imprisonment, namely about 10 – 11 days’ imprisonment.

(b)      Stage 2: uplift per s 74C(2) PC. With a multiplier of 1.5 times, this will give an indicative enhanced sentence of about two weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. The Accused kicked V1 at a vulnerable area, namely her face, and threw his mobile telephone at her. In my view, an uplift of at least three to four weeks’ imprisonment is appropriate. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be five weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Applying the full PG discount, the final sentence reached is about five weeks’ imprisonment. ie. 70% x seven weeks’ imprisonment.

33     In MAC-901498-2024, the Accused caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2 did not suffer any visible injury. I accordingly assess that this fell within Band 1 of the framework set out in Niranjan. While I accept that the custodial threshold was crossed, I assess the indicative starting sentence be slightly less than one week’s imprisonment.

(b)      Stage 2: uplift per s 74B(2) PC. With a multiplier of 1.7 times, this will give an indicative enhanced sentence of about 1.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. V2 was simply crying when the Accused slapped him. As this was but a slap, I find that an uplift of about two weeks’ imprisonment to be fair. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be about 3 weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentence reached is about three weeks’ imprisonment. ie. 70% x 4.5 weeks’ imprisonment.

Charges relating to the 2nd incident on 18 December 2022

34     In MAC-901502-2024, the Accused caused hurt to V1. My assessment is as follows:

(a)      Stage 1: hurt caused. V1 felt bodily pain and suffered redness over the left side suffered of her face. This injury fell within Band 1 of the framework set out in Niranjan. I likewise agree that the custodial threshold is crossed and assess the indicative sentence to be about one week’s imprisonment.

(b)      Stage 2: uplift per s 74C(2) PC. With a multiplier of 1.5 times, this will give the indicative enhanced sentence of about 1.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. In terms of the offence-related aggravating factors, I note that Accused had slapped V1, pulled her hair, and kicked her stomach. In my view, an uplift of five to six weeks’ imprisonment is appropriate. Including the uplift for the TIC charges and antecedents, I assess that the total uplift for this stage to be about seven weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentenced reached is about six weeks’ imprisonment. ie. 70% x 8.5 weeks’ imprisonment.

35     In MAC-901503-2024, the Accused caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2 was not brought to the hospital until 21 December 2022 when his condition worsened. A CT scan revealed that V2 had a small acute right subdural hematoma and was also diagnosed with a mild traumatic brain injury resulting in a subdural hematoma and was hospitalized for five days between 21 to 26 December 2022. In my assessment, this falls within Band 2 of the framework set out in Niranjan. I assess the indicative starting sentence to be 12 weeks’ imprisonment.

(b)      Stage 2: uplift per s 74B(2) PC. With a multiplier of 1.7 times, this will give the indicative enhanced sentence of about 20.5 weeks’ imprisonment.

(c)      Stage 3: aggravating and mitigating factors. Once again, the Accused assaulted V2 simply because he was crying. He used his mobile telephone to hit him twice, before and after V1 tried to intervene. Another aggravating factor was that the Accused did not allow V1 to bring V2 to seek medical attention. This could have serious repercussions as the injuries were caused to V2’s head. Furthermore, when V2 was brought to the hospital, the Accused threatened V1 that he would beat her up if she told medical personnel the truth of what had happened to the V2 (subject matter of the TIC charge MAC-901504-2024). V2 was eventually admitted to hospital for five days. I accordingly the uplift to be about 10 to 11 weeks’ imprisonment. Including the uplift for the TIC charges and antecedents, I assess the total uplift for this stage to be 12 weeks’ imprisonment.

(d)      Stage 4: applying the PG discount. Having applied the PG discount, the final sentence sentenced reached is about 23 weeks’ imprisonment. ie. 70% x 32.5 weeks imprisonment.

Charges relating to the 3rd incident on 3 January 2023

36     In MAC-901505-2024, the Accused also caused hurt to V2. My assessment is as follows:

(a)      Stage 1: hurt caused. V2’s crying once again irritated the Accused. He lifted V2 off the ground by his neck until V2 lost consciousness. Although V2 subsequently regain consciousness, he later had symptoms of persistent headaches, poor appetite and frequent vomiting which had become worse. V2 was admitted to hospital from 4 to 10 January 2023 and his symptoms gradually improved. It my view, this injury fell within Band 2 of the framework set out in Niranjan. I adjudge that the hurt caused here is higher than that caused to V2 in the 2nd incident and assess that the indicative starting sentence is 14 weeks’ imprisonment.

(b)      Uplift per s 74B(2). With a multiplier of 1.7 times, this will give the indicative enhanced sentence of about 24 weeks’ imprisonment.

(c)      Aggravating factors. In this incident, one additional aggravating factor is that the Accused committed this offence despite knowing the injuries V2 had suffered earlier. In my view, an uplift of about 12 – 13 weeks’ imprisonment to be appropriate. Including the uplift for the TIC charges and antecedents, I assess the total uplift for this stage to be 14 weeks’ imprisonment.

(d)      Applying the PG discount. Having applied the 30% PG discount, the sentenced reached is about 27 weeks’ imprisonment ie. 70% x 38 weeks imprisonment.

Consecutive or concurrent sentences

37     Having determined the individual sentences, I next had to consider which of these sentences of imprisonment should run consecutively. Under s 307 of the CPC, I am required to run at least two sentences of imprisonment consecutively.

38     The Prosecution is seeking for two sentences of imprisonment to run consecutively, namely MAC-901499-2024, where the Accused caused hurt to V1 and MAC-901505-2024, where the Accused caused hurt to V2.

39     I disagreed. As the five proceeded charges encompassed three separate occasions, I adjudge that it was more appropriate that three of the sentences of imprisonment run consecutively. I therefore order at the sentences of imprisonment in the following charges to run consecutively:

(a)     MAC-901499-2024 (1st incident, committed against V1);

(b)     MAC-901503-2024 (2nd incident, committed against V2); and

(c)     MAC-901505-2024 (3rd incident, committed against V2)

Final sentence imposed

40     In summary, I impose the following sentences:

Charge No.

Offence

Sentence Imposed

MAC-901498-2024

V2. Slapped him on the cheek.

three weeks’ imprisonment

MAC-901499-2024

V1. Threw phone at face. Caused bruise on right eye, cut at nose.

Five weeks’ Imprisonment

consecutive

MAC-901502-2024

V1. Pulled hair and kicked stomach.

six weeks’ imprisonment

MAC-901503-2024

V2. Used phone to hit V2 on his forehead multiple times.

23 weeks’ imprisonment

Consecutive

MAC-901505-2024

V2. Grabbed V2 by his neck and lifted him off the floor causing him to lose consciousness

27 weeks’ imprisonment

consecutive



41     I therefore impose a global sentence of 55 weeks’ imprisonment.

42     While the global sentence of 55 weeks’ imprisonment is higher than the upper end of the Prosecution’s proposed sentencing range of 11.5 months’ imprisonment, I nonetheless found this to be appropriate. It was not a crushing sentence and I find that it more accurately reflects the Accused’s criminal culpability and accordingly, no further adjustment is required to the individual sentences.

Concluding remarks

43     What the Accused did to V2 to be both egregious and cowardly. Such volent conduct cannot be condoned.

44     He hurt V2 on numerous occasions and the only reason for doing so, it would appear, was the fact that V2 would not stop crying. He hurt an innocent child who was unable to defend himself. Even when V1 tried to intervene, the Accused continued to hurt V2. His violent acts against V2 did not stop even though he was aware that V2 had previously suffered injuries in his hands and had been warded in hospital. Further, in co-habiting with V2’s mother in her home, one of his responsibilities was ultimately to share, or minimally to assist in looking after V2. He did not. Instead, he abused the trust reposed in him. It can only be hoped that the incident(s) will not leave a lasting psychological effect on V2.

"},{"tags":["Criminal Law – Outrage of Modesty – Penal Code","Criminal Law – Obscene Act – Penal Code","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-16","court":"District Court","case-number":"District Arrest Case No 916718 of 2021 & Anor, Magistrate's Appeal No 9119 of 2024-01","title":"Public Prosecutor v Wong Xiu Xian","citation":"[2024] SGDC 237","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32163-SSP.xml","counsel":["DPP Grace Teo Pei Rong (Attorney-General's Chambers) for the Public Prosecutor","Bernard Sahagar and Shaun Sim (Lee Bon Leong & Co) for the accused person."],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Kok Shu-en","html":"Public Prosecutor v Wong Xiu Xian

Public Prosecutor v Wong Xiu Xian
[2024] SGDC 237

Case Number:District Arrest Case No 916718 of 2021 & Anor, Magistrate's Appeal No 9119 of 2024-01
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Grace Teo Pei Rong (Attorney-General's Chambers) for the Public Prosecutor; Bernard Sahagar and Shaun Sim (Lee Bon Leong & Co) for the accused person.
Parties: Public Prosecutor — Wong Xiu Xian

Criminal Law – Outrage of Modesty – Penal Code

Criminal Law – Obscene Act – Penal Code

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9119/2024/01.]

16 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused is a 39-year-old Singaporean male who claimed trial to 2 charges:

(a)     One charge of using criminal force to outrage the modesty of one [V] by touching V’s vagina and squeezing her breasts, and in order to commit the offence, voluntarily causing wrongful restraint to V, which is an offence under section 354A(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the section 354A charge”); and

(b)     One charge of doing an obscene act in a public place by exposing his penis to V, which is an offence under section 294(a) of the Penal Code (“the obscene act charge”).

2       At the conclusion of the trial, I amended the section 354A charge to remove references to V having been touched underneath her clothing and to change the reference to V being pinned down to having been blocked by the accused’s body.

3       I convicted the accused on both charges and sentenced him to a global sentence of 4 years’ imprisonment and 6 strokes of the cane.

4       The Defence has filed an appeal against both the convictions and sentences imposed.

Facts

The undisputed facts

5       It was undisputed that the accused and V were strangers who were unacquainted before the incident on 24 August 2021 and did not have any interactions thereafter. There was also no dispute that the accused did have an encounter with V that day and that they were both the premises of the estate where V resided (“the estate”)[note: 1] on 24 August 2021 at around 2am – in other words, the Defence did not claim that the accused had been mistaken for another person.[note: 2]

6       From the testimonies of V and the accused, there was also convergence as to some of the general contours of the events of 24 August 2021. The first point of contact between V and the accused was outside the gate and continued up the stairs behind the side entrance for residents and at the landing on top of the stairs.

7       At some point, the accused caused V to fall down around the stairs. As V got up, she fell again, this time backwards into a row of bushes at the side of the landing of the stairs. The accused’s body was positioned above her whilst she was in the bushes.

8       After the accused exited the compound, V scolded the accused. The accused turn back and reacted to V’s scolding with a rude gesture.

9       V subsequently captured photographs of the accused in the vicinity of the estate, having spotted him after the incident.[note: 3]

The Prosecution’s case

10     The Prosecution led evidence from a total of 4 witnesses. Apart from V, evidence was also led from one Quey Zhi Qiang (PW2), a doctor who examined V after the incident (PW3) and the investigation officer (PW4).

V’s evidence

11     At the time of trial, V was 32-year-old Chinese national. She testified that she arrived in Singapore from China in July 2021 to study, and she had been renting a place to stay at the residential estate located at the estate.

12     At about 2am on 24 August 2021, V was walking home alone.[note: 4] She was wearing a black top and white skirt that was slightly above her knees.[note: 5] She said she felt that someone was following her and when she turned around, she saw someone about 2 to 3 metres away from her.[note: 6] She said the man as wearing a red-orange top and shorts and a mask.[note: 7]

13     V said she quickened her steps and as she tried to get her keys from her handbag, the person pounced on her at the area near the side gate into the estate[note: 8], next to the white line on the ground,[note: 9] by using his arms to surround her chest and collarbone area from the back.[note: 10] When he pounced on her, V said that she shouted, “what are you doing?” at him but he did not respond.[note: 11]

14     V said she then struggled to make her way toward the side gate and to tap her access card. She managed to tap the card and the gate opened.[note: 12] After the gate opened, V tried to move up the staircases just behind the gate[note: 13].

15     As V tried to go up the stairs, she said that the person was pulling onto her, causing her to fall.[note: 14] She said that she was unable to get up as she moved from the bottom of the stairs to the top, and that the person was bent over her, using one of him arms to hold onto V’s arm while his other hand was somewhere on her waist.[note: 15]

16     When she reached the top of the stairs, V said that the contents of her bag and her handphone had scattered all over the floor. V said that she tried to stand up to pick up her phone, when she was pushed by the person towards the plants, and she fell. She said that she fell onto the concrete bench lining the planter box at the side of the staircase landing, with the upper half of her body was in the plants.[note: 16]

17     When describing her position at this time, V said during her examination-in-chief that she was in a half-lying position because the person was pinning down on her and she was not able to move.[note: 17] During cross-examination, she said that she had not been pinned down – she said that she had fallen backwards into the plants, so she was facing upward, while the person was bending forward though his body was not resting on hers.[note: 18] She said that she could not get up as she had used up all her strength in struggling and trying to push the person away[note: 19].

18     V said that when her upper body was in the plants and she was facing upwards, the accused – who was positioned above her – put his hand under her top from the collar.[note: 20] She said that he first touched both her breasts[note: 21] with both his hands, before using only his right hand underneath the top[note: 22]. He then used his left hand to touch her vagina[note: 23] – first touching her over the underwear and then underneath the underwear, going in from the side of her thigh to touch her private part.[note: 24]

19     During cross-examination, V was confronted with a statement that was recorded from her by the investigation officer, PW4, during investigations.[note: 25] It was highlighted to V that according to the statement, V said that she had been touched by the accused over her clothing – specifically that he had touched her vagina over her panties, and that he had squeezed both her breasts over the short-sleeved blouse that she was wearing. V explained that it was quite chaotic at the time of the incident - she said that he started off by touching her above the clothes and then under the clothes.[note: 26] She claimed that did tell PW4 that she had also been touched underneath her clothing but said that PW4 had mistakenly omitted to record these in the statement.[note: 27]

20     Whilst the person was touching her, V said that she wanted going to report the matter to the police, to which he retorted in Mandarin “I’ve already touched you, you can call the police all you want”[note: 28] in a tone that she said sounded as if he was belittling her.[note: 29]

21     After the person got up, V took the opportunity to pick up her phone and called her classmate, a person she identified as ‘Na Na’ as she did not know the number to call the police. V said that she managed to place a call through to Na Na and as she was telling Na Na that she had encountered an incident, the person turned to leave the premises of the estate via the side gate.

22     After the person had exited the gate had closed behind him, V stood near the railings of the compound and started to scold the accused from where she was. When the accused heard V scolding him, he turned around, took a few steps back in her direction and pulled down his shorts, exposing his penis to V.[note: 30]

23     Following this incident, V returned to her apartment at the estate and called her friend Na Na. She told Na Na that she was scared, and Na Na asked V to go over to her place.[note: 31] So about 10 minutes after returning to her apartment, V left the estate, planning to walk towards the main road to get a taxi.[note: 32] As she was walking down the road outside the estate, she spotted the person who had just assaulted her walking and talking on his phone and proceeded to take a photograph of him.[note: 33]

24     After she took the photograph, V noticed the person turn back and thinking that he had seen her, she panicked and noticing an open door of a car parked along the side of the road, she spoke the driver of the car, who was unknown to her, and told him that she had been robbed by the person she had just photographed. The driver told her to get into the car and that he would help her to go after this person. Whilst seated in the car, V took a second photograph of the person who had attacked her. [note: 34]

25     When the person turned into a road that the driver could not turn into, V said that she thanked the driver and alighted from his car. She managed to get a taxi and went to Na Na’s house. V told the court that Na Na left Singapore and returned to China sometime in March or May 2022 and that she had since lost contact with her.

26     Apart from Na Na, V said that she had also told one ‘Xiao Ming’ about what had happened to her. Xiao Ming was the agent who had assisted V in applying for her visa to stay in Singapore, and she said she received a text message from him reminding her to take precautions due to the worsening Covid-19 situation.[note: 35] After deliberating for a long time whether she should tell Xiao Ming about what had happened, since he was a guy, she decided to do so. Xiao Ming then told her to police report and accompanied her to do so on 25 August 2021 at about 6.39pm.[note: 36]

27     V also went for a medical check-up at Tan Tock Seng Hospital, where she briefly told the doctor about the incident and was examined for injuries.[note: 37] Photographs of injury marks on V were admitted into evidence[note: 38] and V confirmed that these were all injuries that she sustained in the altercation with the accused.[note: 39]

28     When asked about how the incident had affected her, V said that she had been affected psychologically, though she had not sought any treatment or help. She could not sleep well, had nightmare and continued to feel depressed even up to the time of the trial. She said that talking about the incident made her feel stressed and extremely scared, and having to give testimony about the incident made her feel helpless.[note: 40]

PW2’s evidence

29     PW2 was a self-employed consultant who ran a business called Visa Global Solution that assisted foreigners in handling visa-related issues. He informed the court that he was also known as ‘Xiao Ming’ and that he was the agent who had assisted V with her visa for her stay in Singapore.[note: 41]

30     He testified that V had texted him late one night asking to speak with him and that they eventually spoke via WeChat. He said that it took V a while to tell him what really happened, but she eventually told him that she had been molested. When he pressed V for details of the incident, he recalled that V told him that she had been walking home when she felt someone following her, which caused her to speed up her pace of walking. As she was scanning her access card to enter the condominium premise, she said that the unknown stranger came charging toward her from the back.[note: 42]

31     He said that V also told him that the stranger had pinned her onto the ground and had used his hand to touch her private area, specifically her breasts followed by her vagina, and that she had asked him to stop.[note: 43] According to PW2, V told him that the incident started as she was walking up the staircase at the entrance of the condominium and that the stranger pinned her down along the stairs and near the walkway inside the condominium parameter.[note: 44] He also explained that he had visited the estate before, though this was not with V but another client.[note: 45]

32     V also told him that in the midst of the incident, her phone rung, and she managed to press the key to answer the call, and that when the stranger heard the sound from the phone, he panicked, stopped what he was doing and tried to exit the condominium premise.[note: 46] After he had exited the condominium premises, PW2 said that V told him that the attacker flashed him private area at V before walking away.[note: 47]

33     PW2 said that V then told him that after resting at her place for a short while, V went out to look for the attacker. She sought the assistance of a driver and whilst in his car she spotted the attacker and was able to take a few photographs of the side profile of the person.[note: 48]

34     PW2 described V during this phone call as sounding a bit embarrassed and lost, as she asked PW2 how such a thing could happen to her just a few months after arriving in Singapore.[note: 49] He said that V was crying during the call, and that he tried to calm her down. He offered to go to the police station with her, as he felt it was the right thing to do since she did not have any friends in Singapore. He then sent her the address of the police station and they arranged to meet outside the station.[note: 50]

35     Prior to this phone call, PW2 said that he had only met with V twice – once at her school to handle administrative formalities, and another time when she obtained her student pass at the Immigration and Checkpoint Authority. From his earlier interactions with V, PW2 described her as a very outgoing person but after the incident, he felt that she tried to keep everything to herself and did not talk so much.[note: 51]

36     At the police station, PW2 assisted in translating for V as the first information report was made as the police officer was not a Chinese. PW2 said that V seemed lost during the recording of the report, and that she was not maintaining eye contact with him, which he found was quite different from her demeanour the previous two times that they had met.[note: 52]

37     Once the matter was forwarded to an investigation officer, he said that V proceeded into the interview alone and he waited for her at the police station. Following the interview with the investigation officer, PW2 accompanied V to Tan Tock Seng Hospital for a medical check-up that the police had requested, where again he helped her translate during the registration process before she went in for the check-up with the doctor alone.[note: 53]

38     PW2 indicated that he no longer had any record of his communications with V as he had changed his mobile phone, resulting in the loss of his previous chat records on WeChat.[note: 54]

The remaining witnesses

39     PW3 was the doctor who examined V at Tan Tock Seng Hospital on 25 August 2021. She testified that V had told her that she had been assaulted by an unknown male and had been grabbed by her leg, causing her to sustain abrasions over the leg. PW3 conducted a physical examination of V and discharged her with some medication.

40     During cross-examination, PW3 was asked to comment on photographs of injuries on V’s legs and agreed that some of the injuries appeared to be fresh while other appeared older.

41     PW4 was a Senior Station Inspector attached to the Special Victims Unit who was assigned as the investigation officer for the case reported by V, who also recorded the long statement from V. She testified that during the statement recording, V was quiet, looked a bit lost, avoided eye contact with her, and needed time to relate the incident to her. She confirmed that the contents of the statement came entirely from V, who had spoken in Mandarin.

42     During cross-examination, PW4 agreed that as an experienced investigation officer, she appreciated the difference between outrage of modesty that involved skin-to-skin contact as opposed to contact over the clothes.

Close of the Prosecution’s case

43     The Defence did not make any submission of no case to answer at the close of the Prosecution’s case. I was satisfied that a prima facie case had been made out on the charges and accordingly I called upon the accused to enter his defence.

The Defence’s case

44     The accused was the only witness for the Defence.

45     At the time of the trial, the accused was employed as a regular in the Singapore Armed Forces, holding the rank of third warrant officer. He had been in service for 18 years and his highest educational qualification was a diploma.

46     The accused said that he married his second wife in 2016 and claimed that she had a tendency to quarrel or fight with him when she became drunk. Photographs of injuries on the accused’s body was tendered into evidence[note: 55], which the accused said were the result of fights with his wife. At the time of the offence, the accused and his wife were renting a room in an apartment within the vicinity of V’s apartment.[note: 56]

47     On 24 August 2021, the accused had taken a day of leave from work[note: 57] as his wife was due to fly off that morning and he intended to send her to the airport. Sometime just before 2am that day, the accused recalled that he had not placed a parking coupon for his car for the next morning. After placing the parking coupons at his car,[note: 58] he saw a person who looked like one ‘Xiaoling’.

48     According to the accused, he came to know Xiaoling sometime in 2015 at a club in Tanjong Pagar. Sometime in 2019, she borrowed about S$2,800 from the accused, following which the accused said his WhatsApp account was deleted by his wife and he was unable to contact her anymore.[note: 59] The accused explained that he was eager to have his money back from Xiaoling as he had recently become the victim of an online scam, for which he made a police report on 14 May 2021.[note: 60]

49     When he saw the person whom he thought was Xiaoling on 24 August 2021, he proceeded to follow her. There was no dispute at the time of trial that this person was in fact not Xiaoling, but V, whom was a stranger to him. When they reached the gate, the accused said that V was waiting for the gate to open, and he asked her if she was Xiaoling. He said V turned around, shook her head once and went up the staircase.[note: 61] The accused denied that he had grabbed her from behind.[note: 62]

50     The accused said that even though V had turned around to face him, he was not able to recognise at that time if she was indeed Xiaoling as she was wearing a mask.[note: 63] Unconvinced that V was not Xiaoling and thinking that she might be trying to avoid him due to the money that she owed him, he chose to follow V up the staircase.[note: 64]

51     As V was about to reach the top of the flight of steps, the accused said that he tried to reach out for her hand but was only able to grab her skirt instead. The pull on her skirt caused her to trip and fall forward onto the ground.[note: 65] According to the accused, the contents of her bag fell out onto the ground when she fell.[note: 66] Once she fell to the ground, the accused said that he went forward to help her up by the front. He said that V had turned toward the right and was half-facing him, and so he placed his right hand in front of her chest and with his hand under her left arm to try to lift her up.[note: 67] He said that she struggled and tried to push him away as he was lifting her up.[note: 68]

52     After V managed to get up, the accused said that she tried to struggle again – she hit and pushed him, which caused her to lose balance and fall backward into the planter box, such that the top half of her body was in the bush.[note: 69] The accused said that he tried to hold onto her to prevent her from falling using his right hand but was unable to do so. He said that because she used her right hand to pull his shirt, he fell onto her. While trying to break his fall using his left hand, he said he sustained some cuts and bleeding on his hand due to the thorns in the plants.[note: 70] He did not seek any treatment for these injuries.[note: 71]

53     According to the accused, he was on top of V at the bush for about 1 or 2 second because his hand was in pain, so he quickly picked himself up and left the compound, going down the staircase and out of the gate, leaving her in the bush.[note: 72] In the brief moment that he was positioned above her in the plants, he said that his knee was positioned on the concrete bench but was not resting his body weight on her. The accused denied touching V’s breasts or her vagina, whether over or underneath the clothing.[note: 73]

54     Explaining why he decided to leave at this point, the accused said that he was still unconvinced that V was not Xiaoling who had borrowed money from him, but he left because did not want to escalate matters any further since he was already injured.[note: 74] He said that he left via the side gate while it was still closing – according to him, the side gate took about 40 seconds to close, and he was able to squeeze out just before it closed completely, which he explained meant that he had spent no more than 40 seconds within the compound of the condominium.[note: 75]

55     After he exited the gate, he turned right and walked down along the road. As he passed by the vehicle gate of the estate, he said that V came out of the gate, stood on the grass patch in front of the estate and started to scold him with some vulgarity.[note: 76] The accused said that he responded by also scolding her back, pointed his middle finger at her and also made a gesture by crossing his hands and making a downward gesture around the area of his pelvis. He did so because he was in pain and because she had scolded him.[note: 77] He denied exposing his private parts to V.[note: 78]

56     The accused then left the area and headed towards a nearby park when his wife called him, and they started to quarrel over the phone. He then walked back to a spot about 300 meters away from the estate he spotted V together with a guy, standing outside of a black car.[note: 79] He was unsure whether V and the man saw him. As he was still quarrelling with his wife on the phone, he did not think much about having spotted V.[note: 80]

57     As he continued walking, he noticed a black car with a man sticking out his head to look at him though it stopped following him when he turned onto another road. He did not see V at this point.

Analysis of the evidence

Assessment of V’s evidence

58     The Prosecution’s case against the accused rested almost entirely on V’s testimony. As the Defence rightly pointed out, this was a case where there was little corroborative evidence in that there were no eyewitnesses, no video footage or DNA evidence that might support her account of events.

59     While I do not think that the lack of corroborative evidence is in itself reason to discredit a witness’ account, it is clear that in such a situation, the evidence of the witness must be unusually convincing in the sense that it must be sufficient, in and of itself, to overcome any reasonable doubts that might arise from the lack of corroboration (see Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533).

V’s credibility as a witness

60     In court, it was evident that the incident that occurred on 24 August 2021 had been traumatic and deeply unpleasant for V. Her testimony was textured in a manner that reflected what would have been a chaotic episode. This was a stranger she did not know before the incident and had not interacted with since the incident who accosted her in the middle of the night, not long after she arrived in Singapore.

61     Objectively, I could see no reason for her to make false allegations against the accused. The accused himself also accepted that he could not think of any reason for V to make up false accusations against him.[note: 81]

62     The Defence argued that it was plausible that V had made false accusations ought of anger and annoyance at the accused for confronting her in the middle of the night and giving her a scare,[note: 82] though this was not something that was put to V in examination. Bearing in mind that it is not sufficient for the Defence to make bare assertions of any motive to falsely implicate the accused (see Goh Han Heng v Public Prosecutor [2003] 3 SLR(R) 374 at [33]), I did not think that the Defence had put forward sufficient evidential basis of such motive of V to do so.

63     I also noted that there was a strong consistent and coherent core that ran through V’s testimony in court, her statement to PW4 and the account that she told PW2 (as told to the court by PW2). Both the account to PW2 and the statement to PW4 occurred contemporaneously on 25 August 2021, just one day after the incident occurred.

64     The accounts were not completely identical. For example, the account that PW2 heard from V appeared to be the briefest and with the least amount of detail, but in all three accounts, V consistently said that:

(a)     The accused had accosted her outside the gate;

(b)     She struggled with him as she entered the gate;

(c)     Whilst inside the premises she was held down by the accused while he touched her breasts and vagina; and

(d)     After he had exited the premises via the gate, he flashed her penis at her.

65     Some of the details about the exact sequence of events before V and the accused were in the bushes were slightly different in the court testimony and in the statement, such as the exact spot outside the estate where V first encountered the accused, whether V had tapped her card when she said that the accused hugged her from the back, whether she recalled him saying any words – these were inconsistencies that the Defence picked up on and submitted that they affected her credibility as a witness. I did not think that these differences ought to have such impact, taking into account allowances to be given for the dynamic situation and the passage of time. Importantly, the general contours of her evidence remained consistent in these separate recounts, and broadly in-line with the accused’s own account of the initial part of their encounter.

66     Apart from these more minor inconsistencies, the Defence argued that V was not credible for a number of other reasons, such as the inconsistency between the injuries sustained and her description of the incident, V’s reaction in the aftermath of the incident, and also how she chose to describe the incident to the unknown car driver and to the doctor, PW3. I considered each of these issues in turn.

67     First, on the injuries sustained by V. The Defence argued that given V’s claim that she had crawled up the staircase, fallen down twice, and struggled with the accused while she was half-lying in the bushes, it was incredible that she only sustained fairly minimal injuries as seen from the medical report and the photographs. It also pointed to the PW3’s evidence that some of the injuries on V appeared to be fresher than others, based on the photographs, as evidence that V must have embellished her evidence about the incident.

68     In my view, this point was neither here nor there. The presence or absence of physical injuries on a person to my mind are not conclusive evidence in itself of whether a physical altercation had taken place, and to be clear this was not a case where there were no injuries noted on V at all. This was also not a case where the Defence was denying any physical altercation at all – by the accused’s own account, he had caused V to fall down as she was near the top of the stairs, and that she fell down again into the planter box.

69     Second, the Defence took issue with how V reacted in the immediate aftermath of the incident when she left the estate to look for a taxi. The Defence argued that this was irrational, since she ought to have stayed instead of leaving home and trying to confront the accused.

70     To be clear, V’s evidence as to why she left the estate shortly after the incident was not that she intended to look for or confront the accused, but to flag a taxi to go to Na Na’s house. She explained that she had been unable to a Grab car and decided to find a taxi along the road instead.[note: 83]

71     In looking at V’s actions in the immediate aftermath of the incident, I think that it is helpful to bear in mind that there is no typical way that a victim of sexual assault can be expected to behave. As the High Court in Public Prosecutor v Yue Roger Jr [2019] 3 SLR 749 observed (at [34]):

“[T]he fact that the Victim was not driven into despair or helplessness was not by itself a ground for disbelief of her evidence. People react in different ways to sexual abuse and may compartmentalise or rationalise their reactions. A calm, undisturbed disposition may generally incline the court to conclude that no wrong was committed, but it is not necessary for a complainant to be distraught for her to be believed.” [Emphasis added]

72     So, the fact that V did not cower and tremble in fear in her room, but decided to step out of her residence was, to my mind, not an indication that she had not been truthful about the incident. In any event, her explanation was still a logical one, in that she wanted to make her way to her friend Na Na’s place at Na Na’s invitation, as she had told Na Na that she was scared.

73     I pause at this point to address the absence of Na Na at the trial, or indeed the lack of any evidence of her existence. PW4, the investigation officer, confirmed that she had not been able to obtain any details about Na Na from V, though she also said that she had not asked V for any call logs. There was also the fact that V had told PW4 during investigations that she had been with Na Na prior to returning home that evening, but at trial claimed that she had been with an entirely different individual. The Defence pointed to these as another indication of the unbelievability of V’s account.

74     I did indeed find it difficult to believe that, in an age of hyper-connectivity, V would be unable to provide any information about Na Na, though I was not in a position to speculate as to why V seemingly refused to provide information about Na Na.

75     However, in assessing the impact of Na Na’s identity on V’s credibility as a witness, I returned to the significance of this person in V’s testimony, which was that she was the first person whom V claimed she related the incident to. However, she was not the only person that V confided in shortly after the incident, since she had also told PW2 about what had happened by the next day, which led to the police report being lodged by the evening of 25 August 2021. As such, whilst V’s testimony about Na Na could not be fully verified or accepted, I did not think that this significantly impacted her overall credibility as a witness.

76     Finally, I considered also what V told the unknown car driver and the examining doctor PW3 about the incident, significantly that she did not tell them that she had been molested. Instead, V said that she told the unknown car driver that she had been robbed, while she told the doctor that she had been assaulted, with no specific mention of sexual assault.

77     When questioned about these accounts that she gave to the driver and the doctor, V said that she had been embarrassed to tell the driver and the doctor about what had happened. She explained that the driver was a man, and as for the doctor, who was a female, she only gave information that the doctor asked for and did not volunteer any additional information.

78     In this connection, I am conscious that in determining if a witness’ evidence is “unusually convincing”, the court must consider the internal and external consistency of the witness’ testimony, and that in telling different things to different persons about what happened to her on 24 August 2021 there was inconsistency in her evidence.

79     However, in my view, V had given satisfactory explanations for why she had given these different accounts to the driver and the doctor. I noted that V had mentioned several times during her testimony that she found the incident to be embarrassing, and that it had taken her a long time to decide to tell PW2 about the incident, since he was also a man. It is understandable and natural for a person to feel a sense of embarrassment and reticence about having been violently molested, and also understandable if V decided that she would not provide the details of the incident to other persons unless it was necessary to do so. Thus, in my view, these inconsistent accounts that she gave to the doctor and the driver ought not to put a dent in her credibility as a witness.

80     Taking all these together, in my view V was overall a credible witness. While there were some significant inconsistencies in her evidence – which I deal with in further detail below – I did not think that V was being deliberately untruthful or that she was seeking to embellish her allegations against the accused, and they did not diminish her credibility as a witness.

The evidence for the section 354A charge

81     The key issue concerning V’s evidence in this case was the inconsistencies in her oral testimony in court and the statement that she gave to PW4. The main inconsistencies that go to the heart of the section 354A charge concerned V’s account of how she was touched on her breasts and her vagina.

82     In court, V said during evidence-in-chief that the accused first used both his hands to grab her breasts, and then used only his right hand.[note: 84] She said that he first touched her breasts over her underwear before he touched her below the underwear. During cross-examination, she said that he had squeezed her breast over the clothing and also slipped his hand under the blouse.[note: 85] She also said in court that he touched her vagina over her underwear before touching the same area under the underwear.[note: 86]

83     In the investigative statement that was recorded from her on 25 August 2021, she said that the accused used both his hands to squeeze both breasts over her short-sleeved shirt and that he touched her vagina over her panties. The statement did not contain any reference of touching the breasts under the blouse or the vagina underneath the underwear (“under-clothing touches”).

84     The explanation that V put forth in court for this omission was that she did tell the recorder about the under-clothing touches, and that the recorder mistakenly left this out from the statement, which the Prosecution accepted – and I agreed – was likely not the case given PW4’s experience as an Investigative Officer. The Prosecution instead relied on the fact that PW4 had not specifically asked V whether she had also been touched beneath her clothing to account for the absence of any reference to the under-clothing touches in the statement.

85     I accepted that on the evidence, there were inconsistencies in the description of how the touching of the breasts and vagina occurred that had not been satisfactorily resolved or explained. However, I would add that, in my view, the versions whilst inconsistent were not contradictory or incompatible, since what was in the statement was affirmed by V in court, albeit with the addition of further details. I also did not think that these inconsistencies were indicative of a witness who was being deliberately untruthful or seeking to embellish her evidence.

86     It was clear from the evidence that this was for V a chaotic and unpleasant experience with a stranger who accosted her out of the blue in the wee hours of the morning in a foreign country, and I agreed with the Prosecution that allowance must be given for a witness’ ability to recount events given these circumstances. It was also possible that a sense of shame and embarrassment can cause reticence in revealing the full details of an incident, which V herself alluded to several times in her evidence, e.g. when explaining why she told the driver that she was robbed, when asked about why she did not reveal details of the incident to the doctor, when she talked about deliberating whether to tell PW2 about the incident.

87     Allowance must also be given for the passage of time and how that affects a witness’ recollection and perception of events, as well as issues of nuances in translation from another language to English.

88     To my mind, any of these reasons can reasonably account for variances between in a witness’ contemporaneous recollection of an event and her recollection two years after the event. In this regard, I note that the credibility of a witness is a separate issue from the reliability of an account (see Public Prosecutor v GCK [2020] 1 SLR 486) and reiterate the point made earlier that she was, in my view, a credible witness who has no reason to give false testimony against a complete stranger.

89     On the issue of the reliability of her evidence, I did not think that this was a situation where, as the Defence suggested, V could have been mistaken about what had happened to her. It is quite difficult to see how a person can be mistaken about having her breasts squeezed and her vagina touched, particularly since the Defence accepted that V was not mistaken about a number of other things that evening, such identifying that the accused was the person who had followed her and then accosted her, and that she fell down once at the staircase of the estate and a second time into the planter box.

90     While there were aspects of V’s testimony – specifically that she was touched underneath her clothing – which I found evidentially difficult to accept given the lack of a satisfactory explanation in the evidence for the inconsistencies, I did not think that this was reason to disregard the entirety of her evidence as being unreliable. This was because of the consistent core running through the accounts that V gave to PW2, PW4 and to the court – all of which state that the accused squeezed her breasts, and then touched her vagina.

91     For these reasons, I had no difficulty accepting her evidence within the consistent core that ran through her testimony in court, and what she had said contemporaneously in her statement and to PW2, that she had been squeezed on her breasts and touched at her vagina, albeit without references to the under-clothing touches.

92     As for the element of the charge under section 354A that relates to the wrongful restraint of V by the accused, which the Prosecution has particularised with the words “pinned her down”, V had initially said during her evidence-in-chief that she had been pinned down by the accused while she was in the bushes.

93     Under section 339 of the Penal Code, the element of “wrongful restraint” is defined as follows:

Whoever voluntarily obstructs any person, so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

94     However, during cross-examination, she said that she had not been “pinned down”, which she explained to mean that his body was not resting on her though she maintained that she had been unable to move because his body was bent over above hers while she was half-lying down in the plants.

95     In my view, what V described satisfied the definition of wrongful restraint in section 339 in the sense that the accused had prevented V from moving away from the planter box since he had voluntarily placed himself in a position over her. However, given her evidence, in my view it was more appropriate to describe this as her having been blocked from moving by the accused’s body.

The evidence for the obscene act charge

96     Turning to the charge for doing an obscene act, the Defence did not dispute that V had scolded the accused as he walked away from the gate, and that he turned around in response to her scolding and reacted with a crude gesture, with the only dispute being what that gesture was.

97     As I indicated earlier, I did not think that the inconsistencies in the evidence on the section 354A charge discredited V as a witness nor the reliability of her testimony. The account that V gave in court about how she scolded the accused after he had left and the gate had closed, and how he then turned back to expose his penis to her was textured, coherent and consistent and I had no difficulty accepting her evidence in this regard.

Assessment of the accused’s evidence

98     The central plank of the accused’s Defence was the claim that he had mistaken V for Xiaoling, which caused him to follow V and try to grab onto her. He denied

99     While the Defence took issue with the lack of evidence that V’s friend Na Na existed, it faced a similar predicament of its own in the lack of evidence as to the existence of Xiaoling. While the accused was able to put forward a number of exhibits to corroborate his testimony on issues such as his leave plans and his car parking, there was noticeably nothing put forward to corroborate his testimony on Xiaoling to address the questions of whether she existed, and the debt that she owed to him. It appeared from his testimony that his wife would have been able to corroborate his testimony about Xiaoling, but he did not call her as a witness.

100    Even if I were to accept that Xiaoling existed, which I did not have any clear basis for, I found that his entire course of conduct in following V and then physically accosting her as she entered the condominium premise was at odds with his claim that this was a person who he thought owed him money. If he was indeed concerned with getting Xiaoling to return the money that she had borrowed from him, it seemed logical to me that he would try to quickly ascertain her identity and ask her about the returning the money.

101    Yet by the accused’s own account, he only asked her once in the entire incident if she was Xiaoling, which was at the point when he first caught up to her in front of the gate. From his account, there also appeared to have been no mention at all by him during the entire interaction when he mentioned the loan, even though that was ostensibly the main reason why he had gone through the trouble of approaching her.

102    He also claimed that he could not ascertain if she was Xiaoling because of the mask on her face, but there seemed to have been no attempt by him to have the mask removed so that he could visually identify the person.

103    When she started scolding him after he left the condominium, again he made no attempt to ascertain her identity or to bring up this outstanding debt that he was supposedly aggrieved by but claims that he only made a rude gesture before walking away.

104    This version of events put forward by the accused was to my mind unconvincing, and accordingly I rejected it.

Decision on the charges

105    For the reasons I set out above, I was satisfied on the evidence that:

(a)     The accused did touch V’s breasts and vagina, and in order to do so, he blocked her from moving with his body, and

(b)     The accused did expose his penis to V whilst standing at the road in front of the estate, which is a public place.

106    Accordingly, I amended the section 354A charge to remove the reference to skin-to-skin touch and to change the “pinned her down” to “blocked her from moving with your body” and convicted the accused on both charges.

Sentencing

Prescribed punishments

107    Under section 354A(1) of the Penal Code, an offender convicted of an offence of outrage of modesty while voluntarily causing restraint is one that shall be punished with imprisonment for a term of not less than 2 years and not more than 10 years, and with caning.

108    As for the obscene act charge, section 294(a) of the Penal Code provides that this is punishable by imprisonment for a term which may extend to 3 months, or with a fine, or both.

Prosecution’s submissions

109    The Prosecution sought a global sentence of between 4.5 to 5 years’ imprisonment with 6 strokes of the cane.

110    For the section 354A charge, the Prosecution referred to the sentencing framework set out by the High Court in Public Prosecutor v BDA [2018] SGHC 72 (“BDA”), which in turn was based on the sentencing approach set out in GBR v Public Prosecutor and another appeal [2018] 3 SLR 1048 (“GBR”).

111    The Prosecution argued that all three offence-specific factors identified in the BDA framework and GBR approach were present in this case, specifically that:

(a)     There was a high degree of sexual exploitation, as the accused touched both the breasts and vagina, albeit over the clothes.

(b)     The circumstances of the offence were aggravated in that the accused targeted a woman walking home alone at night and attacked her within the premises of her home. There was some degree of premeditation in that the accused admitted to trailing her to the gate and attacked her there, even before the act of molestation.

(c)     There was harm to the victim in the form of both physical injuries and psychological impact.

112    The Prosecution argued that this ought to place the present case at Band 2, with a starting point of at least 4.5 years’ imprisonment with 6 strokes of the cane under the BDA framework.

113    It also argued that a further uplift was warranted in light of the manner in which the Defence was conducted, citing the case of Public Prosecutor v Rengasamy Manikandan [2021] SGDC 122 (“Rengasamy”), where the court considered it aggravating that the offender there had “spun an entire fairy tale in court” and “maintained a patently untenable defence in the face of overwhelming evidence”. The Prosecution submitted that the Defence’s case that the accused had mistaken V for Xiaoling and insisting that V had misconceived and embellished the entire incident was precisely such a defence.

114    As for the obscene act charge, the Prosecution sought a custodial sentence, with length left to the Court, which they submitted should run concurrently with the sentence for the section 354A charge.

115    The case of Public Prosecutor v M Udayaah [2017] SGDC 209 was cited, where the court sentenced the offender to 2 weeks and 1 month imprisonment for two charges under section 294(a) of the Penal Code. Based on the Statement of Facts that the Prosecution retrieved, the offender in that case had exposed his penis to a 16-year-old girl on a bus and on another occasion exposed the top of his penis to a 33-year-old female in a shop.

116    The Prosecution highlighted that the accused in this case exposed his penis to V at the end of what had already been a harrowing experience for her, which had the effect of prolonging her distress. It thus submitted that a custodial sentence was warranted in the circumstances, though recognising that both offences were committed in the same transaction, the Prosecution did not object for both sentences to run concurrently.

Defence’s submissions

117    In relation to the section 354A charge, the Defence similarly referred to the sentencing framework in BDA, though it submitted that the present case fell at the lowest end of Band 1 of the framework because there were no (or at most one) offence specific aggravating factors, specifically that:

(a)     The degree of sexual exploitation was non-existent and/or not high as there was no skin-to-skin contract, and all touches were flitting and over the clothing;

(b)     The victim sustained hardly any and/or only minor injuries in the form of small cuts/bruises on her legs;

(c)     There was no evidence of premeditation on the part of the accused, as seen from the evidence that he had gone to his car to place parking coupons;

(d)     The victim was not a minor; and

(e)     There was no abuse of trust and the incident did not occur within a confined space.

118    As for the obscene act charge, the Defence submitted for a benchmark fine of $2,000, arguing that the obscene act in this case was witnessed by V alone for a fleeting moment, with no physical harm caused to V.

119    The Defence highlighted that the accused had no prior convictions and had served for almost 20 years in the Singapore Armed Forces, from which he had been suspended since investigations began. It asked that the court impose the lowest possible sentences permissible by law on both the charges.

Reasons for the sentences imposed

The section 354A charge

120    On the s354A PC charge, both parties agree that the applicable sentencing framework is set out in the High Court decision of BDA, which adopted an adapted GBR approach for s354A offences, though they diverged on which sentencing band the present case fell under.

121    In my view, the present case ought to be placed at Band 2, which is for cases where there are two or more aggravating factors. Band 1, on the other hand, is for cases where there is no or only one aggravating factor.

122    The main offence-specific factor present in this case was the degree of sexual exploitation. I agreed with the Prosecution that there was a significant degree of exploitation. Even though I found that the evidence supported only an intrusion over the clothing of the victim, the intrusion was to her private parts at both her breasts and the vagina. This was not a case of low level of sexual exploitation, as the Defence had argued.

123    As for the circumstances of the offence, I accepted that this was not a premeditated offence. The accused and V were unknown to each other before this incident and the offence appears to have been committed rather opportunistically by the accused when he spotted V on that fateful evening after he had placed the parking coupons in his car.

124    There was some use of force, in the sense that the accused had accosted the victim outside the condominium and engaged in a physical struggle with V who tried to get away from him. However, I did not give this full weight as a standalone offence specific factor, since the offence under s354A already provides enhanced penalty for offences committed with an element of restraint, which I was satisfied had been established on the evidence. There was thus a need to ensure that there was no double counting of this element of force against the victim in the commission of the offence.

125    The victim sustained some minor physical injuries in the physical altercation with the accused, and she said that she also suffered psychologically. I agreed that these were also relevant as an offence-specific factor.

126    Putting these factors, I agree with the Prosecution that this case would be properly placed within Band 2 of the GBR framework, which under the BDA sentencing bands would attract between 4 to 7 years imprisonment with 6 strokes of the cane, with the appropriate starting point being at the lower end of the band.

127    Moving on to the next stage of the sentencing approach, I did not think that any further adjustments were necessary to account for offender specific factors. As for the accused’s conduct of his case, while I had rejected the version of events that he presented, I did not think that this necessarily warranted the uplift that the Prosecution sought from the starting point. The case of Rengasamy that was cited in support of this argument was quite distinct and aggravated because the offender presented a fanciful defence in the face of clear and objective evidence in the form of CCTV footage, which I did not think was comparable to the situation in the present case.

128    In the circumstances, I sentenced the accused to 4 years imprisonment with 6 strokes of the cane on the section 354A charge.

The obscene act charge

129    As for the obscene act charge, I noted that the usual sentence for such an offence is ordinarily a fine.

130    In the present case, the accused’s conduct in flashing his private parts at V was part of his overall conduct of insulting and antagonizing V. This was essentially an act of adding insult to the earlier injury caused when he had committed the offence in the section 354A charge.

131    In that context, I agreed with the Prosecution that the custodial threshold had been crossed and imposed a sentence of 1 week’s imprisonment on the obscene act charge.

Concurrent sentences

132    As for the issue of consecutive sentences, I agreed with the Prosecution that both sentences should run concurrently since they essentially formed a single transaction.

Conclusion

133    For the reasons set out above, the accused was convicted on the charges and sentenced to a global sentence of 4 years imprisonment and 6 strokes of the cane.

134    A stay of execution was granted on the imprisonment term and the caning. The accused is presently on bail pending appeal.

[note: 1]Scene photographs as set out in exhibit P2

[note: 2]See paragraph 3 of A1, Statement of Agreed Facts

[note: 3]Exhibit P4

[note: 4]Notes of Evidence (“NEs”) on 10 October 2023, page 8, line 31

[note: 5]Ibid, page 10, line 14

[note: 6]Ibid, page 9, line 1 to 3

[note: 7]Ibid, page 10, line 19; page 21, line 20

[note: 8]As shown in photograph 5 of exhibit P2

[note: 9]Ibid, page 10, line 7

[note: 10]Ibid, page 11, line 30 to page 12 line 4

[note: 11]Ibid, page 11, line 27 and page 12, line 5

[note: 12]NEs on 10 October 2023, page 12, line 7 to 24

[note: 13]As shown in photograph 7 of exhibit P2

[note: 14]NEs on 10 October 2023, page 12 line 29

[note: 15]Ibid, page 13, line 6 to 23

[note: 16]As shown in photograph 9 of exhibit P2

[note: 17]NEs on 10 October 2023, page 20 line 11 to 15; page 21, line 1

[note: 18]Ibid, page 58, line 23

[note: 19]Ibid, page 61, line 3

[note: 20]Ibid, page 14, line 30

[note: 21]Ibid, page 15, line 8

[note: 22]Ibid, page 20, line 18

[note: 23]Ibid, page 20, line 21

[note: 24]Ibid, page 18, line 25; page 22, line 17 to 19

[note: 25]Exhibit D1

[note: 26]NEs on 11 October 2023, page 38, line 25

[note: 27]Ibid, page 39, line 6 to 20

[note: 28]NEs on 10 October 2023, page 21, line 4

[note: 29]Ibid, page 21, line 21

[note: 30]Ibid, page 23, line 17 to page 24, line 7

[note: 31]Ibid, page 25, line 1

[note: 32]Ibid, page 25, line 5 to 11

[note: 33]Ibid, page 25, line 19; page 26, line 21; exhibit P4-1

[note: 34]Ibid, page 27, line 17 to 26; exhibit P4-2

[note: 35]Ibid, page 28, line 26 to page 29, line 5

[note: 36]Ibid, page 29, line 7 to 24; exhibit P1

[note: 37]Ibid, page 30, line 27

[note: 38]Exhibit P3

[note: 39]Ibid, page 31, line 16

[note: 40]Ibid, page 32, line 10 to page 33, line 3

[note: 41]NEs on 11 October 2023, page 46, line 8 to 19

[note: 42]Ibid, page 48, line 17 to page 49, line 9

[note: 43]Ibid, page 49, line 19 to page 50, line 2

[note: 44]Ibid, page 50, line 24 to page 51, line 17

[note: 45]Ibid, page 51, line 19

[note: 46]Ibid, page 50, line 4 to 11

[note: 47]Ibid, page 52, line 11

[note: 48]Ibid, page 52, line 17 to 26

[note: 49]Ibid, page 53, line 21

[note: 50]Ibid, page 54, line 9

[note: 51]Ibid, page 53, line 26 to page 54, line 6

[note: 52]Ibid, page 54, line 29 to page 58 line 22

[note: 53]Ibid, page 58, line 27

[note: 54]Ibid, page 60, line 26

[note: 55]Exhibit D2

[note: 56]NEs on 8 January 2024, page 5, line 4; exhibit D3

[note: 57]Exhibit D4

[note: 58]Exhibit D5A, D5B, D5C, D5D, D5E; location of car marked ‘X’ on D6

[note: 59]Ibid, page 15, line 8 to 30

[note: 60]Exhibit D9

[note: 61]Ibid, page 16, line 1 to page 18, line 3

[note: 62]Ibid, page 22, line 1

[note: 63]Ibid, page 18, line 4

[note: 64]Ibid, page 18, line 22

[note: 65]Ibid, page 18, line 28 to page 20, line 13

[note: 66]Ibid, page 25, line 24

[note: 67]Ibid, page 20, line 25 to page 21, line 23

[note: 68]Ibid, page 22, line 19 to page 23, line 6

[note: 69]Ibid, page 24, line 1

[note: 70]Ibid, page 24, line 21 to 32

[note: 71]Ibid, page 43, line 1

[note: 72]Ibid, page 26, line 15 to 27

[note: 73]Ibid, page 52, line 21 to page 5, line 23

[note: 74]Ibid, page 28, line 1 to 20

[note: 75]Ibid, page 28, line 21 to page 29, line 8

[note: 76]Ibid, page 30, line 10 to page 31, line 6

[note: 77]Ibid, page 31, line 7 to page 32, line 4

[note: 78]Ibid, page 53, line 24

[note: 79]Ibid, page 34, line 1 to page 35, line 25

[note: 80]Ibid, page 36, line 1

[note: 81]NEs on 8 January 2024, page 71, line 12

[note: 82]Defence’s Closing Submissions at [95]

[note: 83]NEs on 10 October 2023, page 67, line 20

[note: 84]NEs on 10 Oct 2023, page 20, line 18

[note: 85]NEs on 10 Oct 2023, page 18 line 3; NEs on 11 Oct 2023, page 39, line 12

[note: 86]NEs on 10 Oct 2023, page 20, line 1; NEs on 11 Oct 2023, page 39 line 12

"},{"tags":["Criminal Law – Criminal Procedure and Sentencing – Consumption of controlled drugs under section 8(b)(ii) and punishable under section 33A(2)of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Sentencing"],"date":"2024-09-16","court":"District Court","case-number":"District Arrest Case no.903360-2020 and others, Magistrate's Appeal No. 9158-2024-01","title":"Public Prosecutor v Mohammad Ariff Bin Jamaludin","citation":"[2024] SGDC 236","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32162-SSP.xml","counsel":["Deputy Public Prosecutor Ms Quek Lu Yi for the Public Prosecutor","Defence Counsel Teo Choo Kee (M/s C K Teo & Co) for the Accused."],"timestamp":"2024-09-20T16:00:00Z[GMT]","coram":"Eddy Tham","html":"Public Prosecutor v Mohammad Ariff Bin Jamaludin

Public Prosecutor v Mohammad Ariff Bin Jamaludin
[2024] SGDC 236

Case Number:District Arrest Case no.903360-2020 and others, Magistrate's Appeal No. 9158-2024-01
Decision Date:16 September 2024
Tribunal/Court:District Court
Coram: Eddy Tham
Counsel Name(s): Deputy Public Prosecutor Ms Quek Lu Yi for the Public Prosecutor; Defence Counsel Teo Choo Kee (M/s C K Teo & Co) for the Accused.
Parties: Public Prosecutor — Mohammad Ariff Bin Jamaludin

Criminal Law – Criminal Procedure and Sentencing – Consumption of controlled drugs under section 8(b)(ii) and punishable under section 33A(2)of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9158/2024/01.]

16 September 2024

District Judge Eddy Tham:

Background

1       This is the accused’s appeal against sentence in respect of three charges, namely one charge DAC 903360-2020 for an offence of consumption of a specified drug under section 8(b)(ii) and punishable under section 33A(2) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“the Act”) and two charge, DAC 915381-2022 and DAC 917181-2022, for offences of possession of controlled drugs under section 8(a) and punishable under section 33(1) of the Act.

2       The Accused was initially charged on 2 counts for trafficking in controlled drugs. For one charge, the amount of cannabis alleged to have been trafficked was not less than 499.99 grams and he would have been liable to be punished with not less than 20 years’ imprisonment, if convicted. For the other charge, the amount of diamorphine trafficked was alleged to be not less than 17.95g, for which the Accused was facing a death penalty. However, both charges were subsequently reduced to one for possession of controlled drug and the Accused had thereafter pleaded guilty to these charges.

3       The Accused also admitted to and consented for nine possession charges, one consumption charge, one possession of drug utensil charge and three failure to report for urine test charges to be taken into consideration.

4       I sentenced the Accused to 8 years’ imprisonment and 6 strokes of the cane for the consumption charge and 8 years’ imprisonment for each of the possession charges. I further ordered the sentence for the consumption charge to run consecutively with one of the sentences for the possession charge, giving a total sentence of 16 years’ imprisonment and 6 strokes of the cane.

5       The Accused being dissatisfied with the sentence has filed an appeal against it. He is presently serving his sentence.

The Charges

6       The three charges which Accused pleaded guilty to are set out here in full:

DAC 903360-2020

… you, on or about 24 August 2018, in Singapore, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, (Chapter 185, 2008 Rev Edition) (“MDA”), to wit, Morphine, without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the MDA, and further, that you, before the commission of the said offence, had been convicted, on 12 May 2004, in the District Court, No. 4 (vide DAC18510/2004), for an offence of Consumption of a Specified Drug, to wit, Morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Chapter 185, 2001 Rev Edition) (“MDA 2001”) and punishable under s 33A(1) of the MDA 2001, and sentenced to 5 years and 3 months’ imprisonment with 3 strokes of cane, for which conviction and punishment has not been set aside, and that you are thereby liable for enhanced punishment under s 33A(2) of the MDA;

DAC 915381-2022

… you, on 24 August 2018 at or about 8.25am, at Block 782D Woodlands Crescent “xxx”, Singapore, did possess a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, four blocks containing not less than 499.99g of vegetable matter, which was analysed and found to be cannabis, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) of the MDA, and further, that you, before the commission of the above offence, had been convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside, and you are thereby liable for enhanced punishment under s 33(1) of the MDA;

and

DAC 917181-2022

… you, on 24 August 2018 at or about 8.25am, at Block 782D Woodlands Crescent “xxx”, Singapore, did possess a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, one packet and two bundles containing not less than 2254.7g of granular/ powdery substance which was analysed and found to contain not less than 14.99g of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) of the MDA, and further, that you, before the commission of the above offence, had been convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside, and you are thereby liable for enhanced punishment under s 33(1) of the MDA..

The Statement of Facts

Background facts

7       The Accused is a 41-year-old male Singaporean.

8       The co-accused persons are:

a.     Abdul Rahim bin Ahamed (“Ahamed”), a 53-year-old male Singaporean; and

b.     Abdul Rahim bin Ramli (“Ramli”), a 49-year-old male Singaporean.

9       On 24 August 2018, at about 8.25am, a group of officers from the Central Narcotics Bureau (“CNB”) arrested Ramli and the Accused at their residence at Block 782D Woodlands Crescent “xxx”, Singapore (“the Woodlands Unit”).

10     Separately, at about 9.14am on the same day, a group of officers from the CNB arrested Ahamed at his residence at Block 264 Jurong East Street 24 “xxx”, Singapore.

11     A search of the Woodlands Unit was conducted, and the following items, amongst others, were seized:

S/N

Exhibit Description

Exhibit Marking

1

One packet containing granular/powdery substance

A1A1

2

One bundle containing granular/powdery substance

A1B

3

One bundle containing granular/powdery substance

A1C

4

One block containing vegetable matter

H1A1-1

5

One block containing vegetable matter

H1A1A

6

One block containing vegetable matter

H1B-1

7

One block containing vegetable matter

H1B1A



12     The Accused, Ramli, and Ahamed were subsequently escorted to CNB Headquarters at Central Police Divisional Headquarters.

Facts relating to the 2nd Charge (DAC-917181-2022): Enhanced possession

13     The exhibits marked “A1A1”, “A1B” and “A1C” were individually sealed in tamper-proof bags and submitted to the Health Sciences Authority (“HSA”) for analysis on 27 August 2018.

14     On 19 December 2018, an analyst from HSA issued certificates stating that the exhibits “A1A1”, “A1B” and “A1C” were found to be as follows:

(a)     A1A1 - One packet containing not less than 450.6g of granular/powdery substance which was analysed and found to contain not less than 4.13g of diamorphine;

(b)     A1B - One black bundle containing not less than 901.7g of granular/powdery substance which was analysed and found to contain not less than 7.70g of diamorphine; and

(c)     A1C - One black bundle containing not less than 902.4g of granular/powdery substance which was analysed and found to contain not less than 6.12g of diamorphine.

15     Therefore, the three exhibits were found to be one packet and two bundles containing a total of not less than 2254.7g of granular/ powdery substance were analysed and found to contain not less than 14.99g of diamorphine (“the Drugs”).

16     During investigations, it was established that Ramli was acting under the instructions of the Accused. The Accused, Ramli and Ahamed communicated with one another via phone call and text messages.

17     Both the Accused and Ramli resided in the Woodlands Unit. The Accused would occasionally provide “panas” and “sejuk” (the street name for diamorphine and methamphetamine respectively) to Ramli.

18     Sometime in May 2018, Ahamed lost his job. As he was in financial difficulties, Ahamed agreed to work as a driver for the Accused. The Accused told Ahamed that his job scope was to drive to various places to collect items and to pass these items to him. The Accused informed Ahamed to rent a car under his name and told Ahamed that he would pay for the rental and petrol.

19     Ramli had previously confided in the Accused that he was in financial difficulties and was in debt. Sometime in August 2018, the Accused approached Ramli and offered him a job. The Accused told Ramli that his job scope was to collect items for him in exchange for $200. Ramli agreed.

20     On 24 August 2018, at about 6.00am, Ramli arrived at Ahamed’s residence. Ramli passed Ahamed a bundle wrapped with tape, which Ramli had received from the Accused. They then left Ahamed’s residence for Third Lok Yang Road at about 6.45am, after receiving instructions from the Accused to do so.

21     Ramli and Ahamed proceeded to Third Lok Yang Road in separate vehicles. Ahamed drove a red Toyota Vios bearing registration number SKW3761R, while Ramli followed behind in a white van bearing registration number GBH2032D.

22     At about 7.15am, Ramli and Ahamed arrived at a carpark at Third Lok Yang Road. An unknown Indian man, riding a motorbike bearing a Malaysian registration number, then passed a plastic bag (which contained the Drugs) to Ahamed, while Ahamed handed over the bundle he had earlier received from Ramli.

23     Ahamed placed the said plastic bag on the front passenger seat of his vehicle. Ahamed then called the Accused and informed him that he had collected the Drugs. He was informed by the Accused to hand over the Drugs to Ramli. Ramli and Ahamed then spoke on the phone and agreed to meet at a separate location.

24     Ramli and Ahamed then proceeded to the open carpark at Block 935 Jurong West, Singapore. When they arrived at the carpark, Ahamed passed the plastic bag containing the Drugs to Ramli.

25     Ramli proceeded to the Woodlands Unit with the Drugs in his van. At about 7.30am, Ramli reached the carpark next to Block 782D Woodlands Crescent. Ramli was in possession of the Drugs at this time.

26     After he had parked his van and as he was leaving his van, he realised the plastic bag containing the Drugs was torn. Ramli removed the Drugs from the plastic bag and placed them in a blue bag.

27     Ramli carried the blue bag containing the Drugs to the Woodlands Unit. He noticed that the door to the Accused’s bedroom was locked and knocked on the door. He then placed the blue bag outside the Accused’s bedroom door.

28     The Accused knew that the Drugs were diamorphine and was in possession of the Drugs. He intended to traffic the Drugs.

29     Diamorphine is a Class A controlled drug listed in the First Schedule to the MDA.

30     The Accused was not authorised under the MDA or the Regulations made thereunder to possess diamorphine. The Accused has thereby committed an offence under s 8(a) of the MDA.

31     Further, before the commission of the above offence, the Accused was convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA 2001”), and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside. The Accused is thereby liable for enhanced punishment under section 33(1) of the MDA.

32     On 4 September 2023, Ahamed was sentenced to, inter alia, eight years’ imprisonment for possession of not less than 17.95g of diamorphine under s 8(a) of the MDA, punishable under s 33(1) of the MDA. On 13 December 2023, Ramli was sentenced to, inter alia, eight years’ imprisonment for a similar charge.

Facts relating to the 1st Charge (DAC-915381-2022): Enhanced possession

33     The four exhibits marked “H1A1-1”, “H1A1A”, “H1B-1” and “H1B1A” were individually sealed in tamper-proof bags and submitted to the HSA for analysis on 27 August 2018.

34     On 20 December 2018, an analyst from HSA issued certificates stating that the four exhibits were found to be as follows:

(a)     H1A1-1 - One block containing, inter alia, not less than 253.4g of vegetable matter which was analysed and found to be cannabis;

(b)     H1A1A - One block containing, inter alia, not less than 27.63g of vegetable matter which was analysed and found to be cannabis;

(c)     H1B-1 - One block containing, inter alia, not less than 224.5g of vegetable matter which was analysed and found to be cannabis; and

(d)     H1B1A - One block containing, inter alia, not less than 39.40g of vegetable matter which was analysed and found to be cannabis.

35     Therefore, the exhibits “H1A1-1”, “H1A1A”, “H1B-1” and “H1B1A” were found to be four blocks containing, inter alia, a total of not less than 499.99g of vegetable matter, which were analysed and found to contain cannabis.

36     The Accused was in possession of these four blocks of cannabis and knew that the four blocks were cannabis. He intended to traffic the cannabis.

37     Cannabis is a Class A controlled drug listed in the First Schedule to the MDA.

38     The Accused was not authorised under the MDA or the Regulations made thereunder to possess cannabis. He has thereby committed an offence under s 8(a) of the MDA.

39     Further, before the commission of the above offence, the Accused was convicted on 12 May 2004, in the District Court No. 4 (vide DAC09923/2004) for an offence of possession of a controlled drug, to wit, diamorphine, under s 8(a) of the MDA 2001, and were sentenced to 18 months’ imprisonment, which conviction and sentence have not been set aside.

40     The Accused is thereby liable to for enhanced punishment under section 33(1) of the MDA.

Facts relating to the 4th Charge (DAC-903360-2020): LT-2 consumption

41     After his arrest, the Accused was escorted to CNB Headquarters. He provided two bottles of his urine samples, which were sealed in his presence.

42     The urine samples were sent to the HSA on 27 August 2018 for analysis. The HSA subsequently issued two certificates on 29 and 30 August 2018 under s 16 of the MDA stating that stating that on analysis, the said urine sample was found to contain morphine.

43     Morphine is a Specified Drug listed in the Fourth Schedule to the MDA.

44     Morphine is a known metabolite of diamorphine. The morphine found in the Accused ’s urine samples was therefore a result of the Accused’s consumption of diamorphine.

45     The Accused admitted to consuming heroin (street name for diamorphine) to help him relax. He admitted to consuming 1 to 1.5 packets of heroin per day, with each packet containing about 8g of heroin.

46     The Accused was not authorised under the MDA or the Regulations made thereunder to consume morphine and he has thereby committed an offence under s 8(b)(ii) of the MDA.

47     Further, before the commission of the said offence, the Accused had been convicted on 12 May 2004 in the District Court No. 4 (vide DAC18510/2004) for an offence of consumption of a Specified Drug, to wit, morphine, under s 8(b)(ii) of the MDA 2001 and punishable under s 33A(1) of the same Act, and sentenced to 5 years and 3 months’ imprisonment with 3 strokes of cane, for which conviction and punishment has not been set aside.

48     The Accused is thereby liable for enhanced punishment under s 33A(2) of the MDA.

49     Following his arrest on 24 August 2018, the Accused was produced in State Court 26 on 25 August 2018. Ariff has been in remand since 25 August 2018.

50     The Accused’s sentence has been ordered to be backdated to the date of his arrest on 24 August 2018.

Antecedents

51     The Accused has a long list of antecedents. The Accused started off his court intervention in 1998 with probation being imposed for theft-related offences. He also had a few obscene films offences a few years later. The relevant antecedents would however be his drug records which began in 2000.

52     The Accused had two admissions into Drug Rehabilitation Centre, first on 23 March 2000 and again on 15 February 2002. On top of that, he was placed under drug supervision on 4 occasions in 2001, 2003, 2009 and 2017.

53     His drug convictions are as follows:

12 May 2004:

(a)     Trafficking in controlled drugs, sentenced to 5 years and 3 months’ imprisonment with 6 strokes of the cane;

(b)     Unauthorised possession of controlled drug, sentenced to 18 months (consecutive);

(c)     Consumption of a specified drug, sentenced to 5 years and 3 months’ imprisonment with 3 strokes of the cane (concurrent);

(d)     Failure to report for urine test, sentenced to 6 months’ imprisonment (consecutive); and

12 July 2012:

(e)     Consumption of a specified drug, sentenced to 7 years and 6 months with 6 strokes of the cane.

The Prosecution’s Submission on Sentence

54     The Prosecution sought a global sentence of 16 to 18 years and 6 months’ imprisonment and 6 strokes of the cane.

55     The Prosecution submitted for a sentence of between 8-10 years for each of the two unauthorised possession charges. For the consumption charge, Prosecution submitted for a sentence of between 8 years and 8 and a half years with 6 strokes of the cane and for this sentence to run consecutively with one of the sentences for the unauthorised possession charge.

56     For the unauthorised possession charges, the Prosecution highlighted the following factors:

(a)     The amount of diamorphine and cannabis being in possession by the Accused respectively is large, at just under the capital threshold.

(b)     The Accused was in possession of the drugs not just for his own consumption but also for trafficking.

(c)     The Accused was heavily traced for similar offences, including trafficking, and has nine similar enhanced possession charges taken into consideration.

(d)     The co-accused persons were both sentenced to 8 years’ imprisonment for their respective charges. The Accused is more culpable than the co-accused persons in that he was the coordinator of the transaction as borne out by the Statement of Facts.

57     In respect of the consumption charge, the Prosecution submitted for 8 years’ to 8 years’ and 6 months’ imprisonment with 6 strokes of the cane on the principle of escalation. This was because in 2012, the Accused had already been sentenced to 7 years’ and 6 months’ imprisonment with 6 strokes of the cane for an enhanced consumption offence punishable under section 33(A)(2) of the Act commonly known as an LT2 charge, for which he was sentenced to 7 years and 6 months with 6 strokes of the cane.

58     The Prosecution then submitted for the sentences for the 2nd and 4th charges to run consecutively to reflect the higher culpability of the Accused, in comparison with the other 2 co-accused persons.

Mitigation

59     In mitigation, the Defence counsel highlighted that the Accused had a promising start. He had secured GCE O’ level passes in 7 subjects and had enrolled into Temasek Polytechnic, Unfortunately, he fell prey to drugs time and again whenever he was faced with stresses and did not manage to overcome his drug addiction. However, for the past 6 years in remand, he had reflected deeply on what had happened. He is remorseful and regretful that he would not have much time to spend with his mother who has provided moral support to him . During this time, the Accused had taken up course in self-improvement, attended religious classes while in prison. He had also formally renounced his gang affiliations.

60     In respect of the sentence, the Defence Counsel agreed in general with the proposed sentences by the Prosecution save that they should be adjusted downwards to take into account the totality principle. It was thus submitted for a sentence of 7 years for each enhanced possession charge and 7 years and 6 months for the LT2 drug consumption charge giving an overall sentence of 14 years and 6 months of imprisonment.

61     The Defence Counsel submitted that a normal sentence for the most serious of offences which was the LT2 enhanced drug consumption charge which carried a maximum of 13 years would be 7 to 8 years. Thus a sentence of 16 years would be substantially above the normal level and would be a crushing sentence for the Accused.

62     He added that the sentence proposed by the Defence would also be keeping with the prospects that he had shown by the steps he had taken to reform himself for the past few years and would not dash his hopes.

REASONS FOR THE SENTENCE

The sentencing principle

63     The Defence does not appear to object to the individual sentences proposed by the Prosecution and hence the main contention in this case would be how the ‘totality principle’ should be applied in adjusting the individual sentences to reach the global sentence.

64     The totality principle has been enunciated in the case of Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 at [47] as ”a principle of limitation and is a manifestation of the requirement of proportionality that runs through the gamut of sentencing decisions”.

65     It has also been held that the totality principle is a consideration that is applied at the end of the sentencing process. It has been coined as taking “a last look” to see whether the sentence looks wrong or if the effect is crushing.

66     In applying this principle, the Court must first determine the appropriate individual sentences for each of the offences. Once that is done, the Court then can look at the overall sentence when the sentences are aggregated to see whether any adjustments need to be made to the individual sentences in order to “arrive at an aggregate that it thinks is proportionate to the culpability of the offender and which is just in all the circumstances”: PP v BAB [2017] 1 SLR 292 at [61].

67     I next turn to the reasoning for the individual sentences.

Sentencing of the enhanced possession charges

68     In respect of the possession offence, the first pivotal factor would be the amount of drugs. In this case, the quantity of drugs in both charges is huge. Even though the Accused has been charged for possession a lesser amount of 14.99 grams, factually, the amount of diamorphine that was seized was 17.95 grams. As for the cannabis, the amount was equally large. He was charged with being in possession of 499.99 grams of cannabis but factually the amount seized was 544.93 grams. As an indication of the significance of the amount of drugs, had the Accused been charged for trafficking for the amounts stated in the respective charges, he would have faced a minimum of 20 years’ imprisonment for each charge. This factor of quantity alone would have placed the Accused near the maximum end of the sentencing spectrum for this offence which would be towards 10 years’ imprisonment.

69     The second critical factor would be the purpose for the possession. In this case, the Accused had admitted that his possession for both drugs were for the purpose of trafficking.

70     The third factor would be that of culpability. In this case, the Accused had displayed high culpability in respect of the diamorphine charge. Both co-accused persons were acting under his instructions in the collection and transporting of the Drugs to the Woodlands unit. In terms of parity of sentencing, the Accused based on his role as the orchestrator of the offence, ought to be punished much higher than the sentences meted out to both co-accused persons. Even though the co-accused persons had been convicted with being in possession of a higher amount of drugs, which would be the actual amount of drugs seized, nonetheless, the fact that they had been recruited by the Accused should clearly be reflected in the respective sentences. In any case, the actual amount of the Drugs seized was set out in the Statement of Facts and was admitted by the Accused without any qualification.

71     The fourth critical factor would be his antecedent record. The most relevant would be his offence of trafficking in 2004 where he had been sentenced to 5 years and 3 months with 6 strokes of the cane with another charge of possession which sentence of 18 months was ordered to run consecutively. His substantial period of incarceration did not deter him from getting involved in drugs again.

72     The final aggravating factor would the nine similar charges taken into consideration. The Accused had one possession offence committed on an earlier date, 3 February 2018 (DAC 904516/2023). Of the other 8 possession charges taken into consideration, they were all committed on the same day as the proceeded charges but they involved additional variety of other controlled drugs, namely:

(i)     methamphetamine,

(ii)     4-bromoethcathinone or its bromo positional isomer in the phenyl ring,

(iii)     N-ethylpentylone or its 3-methylbutan-1-one isomer,

(iv)     5-methoxy-MiPT or its methoxy positional isomer in the 6-membered ring,

(v)     MMB-FUBINACA or its 1-pentanoate or 2-methylbutanoate isomer or any of their respective fluoro positional isomers in the phenyl ring,

(vi)     Methadone, and

(vii)     MDMA.

73     The Accused was in possession of not just large quantity but a large variety of controlled drugs. These numerous charges taken into consideration would certainly have a boosting effect on the sentences for the proceeded possession charges.

74     Based on the principle of deterrence and the abovementioned factors, the maximum sentence would have been warranted and I would have sentenced the Accused to 10 years’ imprisonment on each charge at this first stage of the sentencing.

75     I turn next to the charge of consumption.

Sentencing of the LT2 consumption charge

76     The Accused had been in and out of the Drug Rehabilitation Centre on at least 2 occasions. Despite his two DRC admissions, the Accused went on to commit consumption offences on another 2 occasions, resulting in a conviction of a LT2 consumption offence in 2012 whereby he was sentenced to 7 years and 6 months with 6 strokes of the cane.

77     The Accused also had three failure to report for urine charges as well as one LT2 charge taken into consideration.

78     Taking into account the principle of escalation, I would have sentenced the Accused to eight years and six months’ imprisonment for this offence with 6 strokes of the cane.

Adjusting the individual sentences in applying the Totality Principle

79     By virtue of section 307 of the Criminal Procedure Code 2010, as the Accused is being sentenced to imprisonment for at least 3 distinct offences, the Court must order the sentences for at least two of those offences to run consecutively.

80     If no adjustment is made, then the Accused would have to be sentenced minimally to 18 years and 6 months imprisonment based on my above-indicated sentences for the three offences.

81     Given that the maximum sentence for the most severe offence which is the consumption offence is 13 years’ imprisonment, the sentence of 18 years and 6 months would not be exactly crushing given his overall criminality. Nonetheless, in view of his plea of guilt and his avowed efforts during the last six years in remand to reform, I have adjusted the sentences for each offence down to eight years’ imprisonment, giving a global sentence of 16 years’ imprisonment.

82     Any further adjustment down would not reflect appropriately the various aggravating factors highlighted above in arriving at the individual sentences.

83     The sentence of 16 years’ imprisonment would not be so crushing as to snuff out all hopes and prospects of a rehabilitated life and thus would be in keeping with his past record and future prospects.

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Public Prosecutor v Le Thuy Trieu
[2024] SGDC 191

Case Number:DAC 902207 of 2023
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: Kow Keng Siong
Counsel Name(s): Ganeshvaran s/o Dhanasekaran and Muhammad Izzat (Immigration & Customs Authority) for the Prosecution; James Joseph (Prestige Legal LPP) for the accused person
Parties: Public Prosecutor — Le Thuy Trieu

Criminal Procedure and Sentencing – Section 57C(2) of the Immigration Act (Cap 133, 2008 Rev Ed) – Offender arranged a marriage of convenience in return for financial gain

13 September 2024

District Judge Kow Keng Siong:

Introduction

1       At the end of a trial, I convicted Ms Le Thuy Trieu (“the Accused”) on a charge under s 57C(2) of the Immigration Act (Cap 133, 2008 Rev Ed): Public Prosecutor v Le Thuy Trieu [2024] SGDC 126 (“Conviction GD”).

2       After the conviction, the Prosecution recommended a sentence of 9 months’ imprisonment and $6,000 fine. The Defence sought a lenient sentence.

3       I eventually imposed a sentence of 9 months’ imprisonment and $4,000 fine i/d 20 days’ imprisonment. In this judgement, I will explain my reasons for imposing this sentence. (The references used in this judgement are the same as those in the Conviction GD.)

Relevant considerations

4       Section 57C(2) makes it an offence for any person to arrange or otherwise assist in arranging a marriage between two other persons with the intention of assisting one of the parties to the marriage to obtain an immigration advantage (“marriage of convenience”).

Offence-specific factors

5       In Mehra Radhika v Public Prosecutor [2015] 1 SLR 96 (“Mehra Radhika”) at [24] and [25], the High Court identified six offence-specific factors which are relevant to the sentencing under s 57C(2). They are as follows:

(a)     Whether the offence was committed in circumstances that reveal that active steps were taken to avoid detection of the offence.

(b)     Whether the offence was a one-off incident or part of a wider illicit commercial operation.

(c)     The specific role played by the offender.

(d)     The specific motive with which the offender committed the offence.

(e)     Whether the offender had recruited accomplices to assist in the commission of the offence.

(f)     Whether the offender had pressured or exploited any of the other parties involved in the marriage of convenience.

Custodial threshold

6       According to the High Court, the custodial threshold will generally be crossed if any of the following offence-specific factors are present (Mehra Radhika at [58]):

(a)     Active steps were taken to conceal the offence.

(b)     The offender played a major role in the commission of the offence as opposed to a minor or merely ancillary role.

(c)     The offence was committed as part of a commercial enterprise that was active in the commission of such crimes as opposed to being a one-off incident.

(d)     The offender was motivated by profit, in which case a fine should additionally be imposed (“disgorgement fine”).

(e)     The offender has recruited others (beside the “spouse”) in the course of committing the offence.

(f)     There has been any exploitation or pressure applied to any of the participants involved in the commission of the offence.

Offender-specific factors

7       In my view, I am of the view that the offender-specific sentencing factors that are typically considered for other offences should also apply to s 57C(2). These factors include the following:

Aggravating factors

(a)     Offences taken into consideration.

(b)     Relevant antecedents.

(c)     Evident lack of remorse.

Mitigating factors

(d)     Guilty plea.

(e)     Voluntary surrender of criminal proceeds.

(f)     Co-operation with authorities.

(g)     Offender’s personal attributes, e.g., his mental condition.

(h)     Offender’s young age.

(i)     Judicial mercy.

(j)     Undue delay in investigation and prosecution.

See Sentencing Frameworks in Singapore (Academy Publishing, 2022) at [4.86(b)] and at Annex H; Sentencing Principles in Singapore (Academy Publishing, 2019) at Cap 22 and Cap 24.

Applying the considerations

Custodial threshold crossed

8       Applying the considerations in [6] above, the custodial threshold is clearly crossed in the present case.

(a)      First, the Accused had played a major role in the commission of the offence. Specifically, she was the one who (i) had suggested the idea of Vuong entering a marriage of convenience to prolong her stay in Singapore, (ii) had approached Hoo to enter into a marriage of convenience with Vuong, (iii) had arranged the registration of the marriage with the Registry of Marriages, and (iv) had passed a total of $10,000 (consisting of $2,000 as an advance and $8,000 in balance payment) from Luong to Hoo for entering the marriage: see Conviction GD at [5(a)], [5(b)], [5(d)], [6(c)] and [6(d)]. I agreed with the Prosecution that without the Accused’s involvement, it would have been unlikely for Hoo and Vuong to have entered a marriage of convenience.[note: 1]

(b)      Second, the Accused had also obtained for herself $4,000 to $6,000 in order to commit the offence: see [13] below.

Imprisonment term

9       In determining the duration of the Accused’s imprisonment term, I have considered the fact that Hoo, Vuong, and Luong (“co-offenders”) had each been sentenced to six months’ imprisonment for their role in the marriage of convenience.

10     In my view, the Accused’s sentence should be longer than those imposed on her co-offenders. This is to reflect a difference in their culpability.

(a)     Among the four persons involved in the marriage of convenience, the Accused clearly played the most significant role: see [8(a)] above.

(b)     The co-offenders had pleaded guilty to their respective offences. Such a plea showed that they were remorseful and had saved valuable public resources in prosecuting them. The sentences on the co-offenders would have included a sentencing discount for their early guilty plea. The same sentencing discount is not available to the Accused. This is because she had chosen to claim trial.

11     In my view, a sentence of 9 months’ imprisonment is appropriate as a starting point (“starting point sentence”). Such a sentence –

(a)     commensurate with the gravity of the Accused’s offence,

(b)     reflects the difference in her culpability from those of the co-offenders, and

(c)     is in line with the sentences imposed in Public Prosecutor v Qin Fuxing [2021] SGDC 154 and Public Prosecutor v Nguyen Thi Hong Lan [2018] SGDC 325.[note: 2]

Disgorgement fine

12     In addition to a term of imprisonment, it is also appropriate to impose a fine to disgorge the criminal benefits that the Accused had received from her offence: see [6(d)] above.

13     In this case, the evidence reveals the following:

(a)     Luong had given the Accused about $14,000 to $16,000 for arranging the marriage: see Conviction GD at [5(d)].

(b)     Out of this sum, the Accused had given $10,000 to Hoo: see [8(a)] above.

(c)     The criminal benefits that the Accused had obtained from the offence is thus between $4,000 to $6,000 – i.e., $14,000 to $16,000 minus $10,000.

14     Given that there is some uncertainty as to exactly how much the Accused had obtained (between $4,000 to $6,000), a benefit of the doubt should be given to her. Accordingly, I impose a disgorgement fine of $4,000 in the present case.

Offender-specific factors

15     I will now deal with the issue of whether the starting point sentence ought to be adjusted for offender-specific sentencing factors.

16     In this regard, the Defence had highlighted the following when submitting for a lenient sentence:[note: 3]

(a)     The Accused did not have any criminal antecedent.

(b)     She had been suffering from depression since 2016.

(c)     She had been unemployed since March 2024.

(d)     The personal circumstances and hardship that the Accused’s loved ones and her were facing at the time of sentencing.

17     In my view, the factors raised by the Defence do not justify a reduction in the starting point sentence.

Conclusion

18     Accordingly, I imposed a sentence of 9 months’ imprisonment and a fine of $4,000 i/d 20 days’ imprisonment.

[note: 1]Prosecution’s Submission on Sentence dated 1 July 2024 at [6(b)].

[note: 2]See Prosecution’s Submission on Sentence dated 1 July 2024 at [9] to [15].

[note: 3]Mitigation dated 4 July 2024.

"},{"tags":["Criminal Law – Offences – Outrage of modesty","Criminal Procedure and Sentencing – Sentencing"],"date":"2024-09-13","court":"District Court","case-number":"District Arrest Case No. 916738 of 2022 & Ors, Magistrate's Appeal No. 9127-2024-01/02","title":"Public Prosecutor v JDA","citation":"[2024] SGDC 224","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32136-SSP.xml","counsel":["Ms Gladys Lim (Attorney General's Chambers) for the Prosecution","Mr Terence Tan and Ms Ong Hui Wen (Drew & Napier LLC) for the Accused"],"timestamp":"2024-09-18T16:00:00Z[GMT]","coram":"Ong Luan Tze","html":"Public Prosecutor v JDA

Public Prosecutor v JDA
[2024] SGDC 224

Case Number:District Arrest Case No. 916738 of 2022 & Ors, Magistrate's Appeal No. 9127-2024-01/02
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: Ong Luan Tze
Counsel Name(s): Ms Gladys Lim (Attorney General's Chambers) for the Prosecution; Mr Terence Tan and Ms Ong Hui Wen (Drew & Napier LLC) for the Accused
Parties: Public Prosecutor — JDA

Criminal Law – Offences – Outrage of modesty

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9127/2024/01-02.]

13 September 2024

District Judge Ong Luan Tze:

1       The Accused claimed trial to four charges involving the outrage of modesty against his stepdaughter. These charges covered a 10-year period from 15 March 2005 to 2015, with the salient details as follows:

Charges under s 354 of the Penal Code (Cap 224, 1985 Rev Ed) (“1985 Penal Code”)

1st charge (DAC 916738/2022)

Sometime between 15 March 2005 and 2006, in an address along Bury Road (“Bury Road address”), the Accused touched the victim’s chest over her clothes.

2nd charge (DAC 916739/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s vagina with his fingers, and made contact between his penis and her vagina.

Charge under s 354(1) and punishable under s 354(2) of the Penal Code (Cap 224, 2008 Rev Ed) (“2008 Penal Code”)

3rd charge (DAC 916740/2022)

Sometime between 15 March 2009 and 15 August 2010, at the carpark of 43 Jalan Loyang Besar and in a motorcar, the Accused touched the victim’s bare thigh and breast over her clothes.

Charge under s 354(1) of the 2008 Penal Code

4th charge (DAC 916741/2022)

Sometime in 2015, in an address along Upper Aljunied Lane (“the Aljunied unit”), the Accused touched the victim’s thigh and breasts.



2       At the conclusion of the trial, I was satisfied that the Prosecution had proven these four charges beyond a reasonable doubt. Accordingly, I found the Accused guilty and convicted him.

3       Having heard the Prosecution’s address on sentence as well as the Accused’s mitigation, I imposed the following sentences:

Charge

Sentence imposed

1st charge DAC 916738-2022

12 months’ imprisonment

2nd charge DAC 916739-2022

18 months’ imprisonment (consecutive)

3rd charge DAC 916740-2022

16 months’ imprisonment (consecutive)

4th charge DAC 916741-2022

10 months’ imprisonment + six weeks’ imprisonment in lieu of three strokes of the cane.

Global sentence

34 months’ imprisonment + six weeks’ imprisonment in lieu of caning



4       The Accused appealed against both the conviction and sentence, and is currently out on bail pending appeal.

Statement of Agreed Facts (“SOAF”)

5       The undisputed facts were encapsulated in a Statement of Agreed Facts[note: 1], the salient portions of which are set out below.

6       The victim was a female born on 17 October 1996. At the commencement of the trial, she was 27 years old. Her biological family consisted of:

(a)     The victim’s biological mother PW1;

(b)     The victim’s biological father PW3;

(c)     The victim’s twin brother PW6; and

(d)     The victim’s older brother.

7       The Accused was 49 years old at the commencement of the trial. He was married to PW1 in October 2003 and they divorced in January 2020.

8       The Accused and PW1 had a total of nine children, as follows:

(a)     Triplets born in April 2004 (“the triplets”), including PW4;

(b)     Twins born in November 2012 (“the twins”); and

(c)     Quadruplets born in October 2013 (“the quadruplets”).

9       On 20 May 2021 at about 7.50 p.m., the victim lodged a police report against the Accused.[note: 2]

Background facts: The victim’s schooling arrangement

10     The victim was enrolled in Rosyth Primary School from 2003 to 2008, and later in CHIJ St Theresa’s Convent Secondary School from 2009 to 2012. In 2021, she started schooling at ITE College West.[note: 3]

Background facts: The victim’s living arrangement

11     Between 15 March 2005 and 14 March 2009, the victim and her biological family, as well as the Accused and his family, and the victim’s maternal grandmother (“grandmother”), lived at the Bury Road address. This was a government property rented in the name of the Accused’s parent’s company.[note: 4]

12     Sometime after 15 March 2005, renovations were done to the Bury Road address. After these renovations, the victim shared a bedroom with her grandmother. This room was connected to the master bedroom by a connecting door.

13     Between 15 March 2009 to 15 August 2010, the victim lived with her biological family, and the Accused and his family, at a unit in 43 Jalan Loyang Besar, Singapore.[note: 5] During this time, the Accused drove a motorcar (“Honda Odyssey”) which was registered in the name of the Accused’s mother.[note: 6]

14     Between 16 August 2010 to sometime before 30 November 2016, the victim lived with her biological family, the Accused and his family, and the grandmother, at the Aljunied unit. This was a two-storey unit in a block of flats which was rented in the name of the victim’s biological father, PW3.[note: 7]

15     Sometime during the period from 16 August 2010 to 30 November 2016, both families ran a café business, Bartak, at the Aljunied unit. The business was registered in the names of the victim’s biological parents (PW1 and PW3) with the Accounting and Corporate Regulatory Authority from 25 June 2010 and its registration expired on 25 June 2017.

16     By 2016, both families had moved out of the Aljunied unit.

The Prosecution’s Case

17     In seeking to prove the charges against the Accused, the Prosecution called the following witnesses.

Evidence from the victim

18     The victim confirmed that she had lodged a police report against the Accused on 20 May 2021, informing that “18 years ago, [she] was sexually assaulted by [the Accused] a couple of times”.[note: 8] While she was not able to remember when exactly the incidents happened, she recalled that it started when she was in primary school, and when she was staying at the Bury Road address.[note: 9] Her evidence was that the Accused had touched her at her private parts on a few occasions and that apart from the Bury Road address, it had also occurred when she was staying at 43 Jalan Loyang Besar and the Aljunied unit.

Incident in the Aljunied unit

19     The last time this occurred was sometime in 2015 when she was staying at the Aljunied unit. While her bedroom was on the second level with her two brothers, her mother had asked her to move downstairs to sleep with her and the victim’s step-siblings in the bedroom on the ground floor. This was because her mother wanted her to help out in the kitchen in the morning, as well as to help take care of her younger step-siblings. As such, the victim would sleep in the ground floor bedroom with her mother and her step-siblings. In particular, she slept on a mattress which was closest to the bedroom door. The Accused would sleep in the living room. She recalled that there were a few nights when the Accused would come into the bedroom and touch her on her private areas like her breast and thighs.

20     On the last occasion this happened, the Accused came into the bedroom and while squatting down, touched the victim on her breast. The victim described the touch as soft and being in a circular motion, and she felt it over her clothes. She also felt touches on her thigh, and this was on her skin. She opened her eyes and saw the Accused squatting in front of her. She moved and the Accused stopped what he was doing and left. The victim confirmed that the Accused had touched her with his hands.[note: 10]

21     The next morning, one of her step-sisters, PW4, asked the victim if the Accused had touched her the night before, and told the victim that she had seen what happened. The victim answered in the affirmative but told PW4 not to tell anyone because she was afraid the others might think she had made this up. However, sometime later, PW6 also came to ask her about this incident and she told him what happened. Her mother later came to ask her about it too, and she also told her mother what happened. Her mother told her not to tell her father PW3 about it as she did not want to have any problems at home. The victim did not tell her father, but her father later came to know about this and asked her if she wanted to lodge a police report. The victim replied in the negative as she was thinking about her step-siblings who were very young then, and she did not want them to grow up without a father.[note: 11]

22     When asked why she thought that her family members might not believe her if she told them what happened, the victim explained that she was not close to any of them. Her mother did not like her since young, and she was not close to her father, as her mother did not like her talking to her father. PW6 was close to her mother so the victim did not confide in him, and her older brother was usually not at home.[note: 12]

23     About one month after this last occasion, the victim moved out of the Aljunied unit with her father PW3.[note: 13]

First incident at the Bury Road address

24     The victim recalled one night when she was in primary three or four[note: 14], when the Accused entered her bedroom via the connecting door to the master bedroom. The victim was sleeping on the top bunk of a double decker bed when she felt the Accused touch her on her breast area with his hands, softly and in a circular motion. This was over her clothes. She moved, after which he stopped and left. Her grandmother, whom she shared the bedroom with, was in the living room watching television at that time.[note: 15]

25     When the Accused touched her, she was confused and knew that it was wrong because her mother had told her before that she should not show her private areas to other people. By private areas, the victim understood this to mean her chest and the area between her thighs. She did not know why the Accused touched her.[note: 16]

Second incident at the Bury Road address

26     The victim recalled another night when she was also in primary three or four, when she was sleeping on the top bunk. The Accused came into the bedroom and tapped her on her shoulder to wake her up. He then signalled for her to follow him and she duly did so. She went to the master bedroom via the connecting door. The Accused asked her to take off her pants and panties and to lie down on the bed. The victim pulled down her pants and panties although she did not take them off. She then lay down on the bed. The Accused took off his boxers and took his penis to rub on her vagina in an up and down motion. He tried to put his penis inside her vagina and she knew this was happening because she felt pressure on her vagina and a pushing force. The Accused then used his fingers to rub her vagina up and down, before asking her to pull up her pants and panties and to leave the room. The Accused also pulled up his boxers. The victim pulled up her pants and panties and went back to her bedroom.[note: 17]

27     The victim did not know why this happened, and felt scared and sad because she could not talk to anyone about this as she was not close to her family members. She did not think about telling her friends about this.[note: 18]

Incident at 43 Jalan Loyang Besar

28     During the time when the victim stayed at 43 Jalan Loyang Besar, she was studying in secondary one and two. One day after school, she saw the Accused’s vehicle at the pick-up point in school, and thought that her mother might have asked the Accused to pick her up. She boarded the vehicle and sat in the front passenger seat. On the way home, she fell asleep. When she was sleeping, she felt touches on her breast area and on the middle of her thigh as well. She described the touches on her breast as soft and in a circular motion over her uniform. The touch on her thigh was directly on her skin. The victim moved and opened her eyes. She then realised that they were back at the car park of 43 Jalan Loyang Besar, and the vehicle was already parked. The Accused was in the driver’s seat and had used his hands to touch her. The Accused stopped what he was doing, and the victim got out of the vehicle and went home.[note: 19] Again, she did not tell her family about this incident as she was not close to them. The victim felt scared and did not know why this was happening.[note: 20]

29     The victim confirmed that she did not consent to any of these incidents. She would cry herself to sleep during the period when the incidents were happening, and after lodging the police report, she also went to see a psychiatrist.[note: 21]

30     When asked why she decided to lodge the police report in 2021, the victim explained that she was dating someone then, and told him about the last occasion at the Aljunied unit. She revealed this to him because she wanted him to understand why she might get sensitive over certain things. He then advised her to lodge a police report and after thinking about it for a while, she decided to do so. She also felt that her step-siblings were old enough by then to take care of themselves.[note: 22]

31     In describing her relationship with the Accused, the victim’s evidence was that she was not close to him and did not usually talk to him. She admitted that she did not like the Accused because when he came into the picture, her father was not around much.[note: 23]

32     At around the time of the last incident, the victim was close to PW4 but they had since drifted apart.[note: 24]

33     The victim admitted that she did not like her mother as she felt that her mother treated her unfairly as opposed to her other children.[note: 25] However, even after the victim moved out of the Aljunied unit, she continued to visit her mother.[note: 26] The victim confirmed that she did not know about her mother’s divorce with the Accused[note: 27] and also did not know that her mother and the Accused owned a property at Joo Seng Road.[note: 28]

Evidence from PW1 (the victim’s biological mother)

34     PW1 gave evidence on the living and sleeping arrangements when her family (including the victim and the Accused) lived at the Bury Road address, as well as at the Aljunied unit. In particular, she explained that at the Bury Road address, the victim slept in the same room as her grandmother. This room was connected to the master bedroom, and the door connecting the two rooms could only be locked from the side of the master bedroom.[note: 29] PW1 and the Accused slept in the master bedroom.

35     When they lived at the Aljunied unit, there was a shopfront on the ground floor, and living quarters on the second floor. The victim lived on the second floor together with PW3, her grandmother and her two brothers. PW1, the Accused and their nine children (the triplets, twins and quadruplets) lived in one bedroom on the ground floor, a space which was carved out from the shop space. PW1 gave evidence that the victim would sleep on the second floor where her room was, but that sometimes she would doze off on the couch on the ground floor, or even in the ground floor bedroom when she had to help “feed the babies”.[note: 30]

36     PW1 confirmed that she only knew that the victim had lodged a report after she was called up by the police for investigations. She also stated that she had not spoken to the victim for about two years prior to the report being lodged.[note: 31]

Evidence from PW3 (the victim’s biological father)

37     PW3 gave evidence that sometime in 2015, he came to know from someone that the Accused had molested the victim. He could not recall who he heard this from, and he did not know the details of what happened. However, he was upset when he heard this, and confronted the Accused on the same day together with PW1.[note: 32]

38     Before he met the Accused, PW3 wrote his thoughts down on a piece of paper. He explained that he was feeling angry and upset, and did not want to lose his train of thought or lose control of himself when talking to the Accused. Hence he used the note as a reference and essentially read out the key points to the Accused during the meeting.[note: 33]

39     The contents of the note included the statement “You dare to molest my daughter in my house” and went on to warn the Accused against any such further acts.[note: 34] The note also made reference to the Accused’s “issues”, which PW3 clarified referred to the Accused’s explosive temperament and abusive and violent tendencies[note: 35], although he did not think these had been used against the children. According to PW3, after he had read out the points in the note to the Accused, the Accused kept quiet and there was no response or denial.[note: 36]

40     PW3’s evidence was that at that point, he thought there had only been one incident, and he wanted to give the Accused a warning and a chance to change. PW3 went on to keep the note as a record for himself that he had spoken to the Accused about this incident.[note: 37] He did not make a police report or ask the victim to make a police report because he did not think that it was a serious criminal matter. PW3 also felt that the victim was very young and did not want her to be affected by what he thought was a single incident.[note: 38]

41     PW3 explained that the victim would not tell him these things as she would know that she would not be believed by PW1.[note: 39] PW3 confirmed that the victim was not treated well by PW1. He also felt that PW1 prevented the victim from getting close to him and the victim would be badly treated if he tried to get too close to her.[note: 40] He felt that the victim was being oppressed and had no one to speak to and no one to protect her.[note: 41]

42     In December 2015, he moved out of the Aljunied unit with the victim and the grandmother, as he wanted to take her away from PW1 since she was not being treated fairly.[note: 42]

Evidence from PW4 (the victim’s step-sister)

43     PW4 was the victim’s step-sister, and about 11 years old at the time of the last incident in 2015. PW4 confirmed that during the period when they stayed at the Aljunied unit, the victim would sleep with her on the “lower bunk” of the bedroom on the ground floor, as their mother would ask the victim to help take care of the step-siblings. The Accused would sleep outside in the living room area.[note: 43]

44     One night, she was woken up by the Accused coming into the bedroom. She saw the Accused kneel down and touch the victim on her thigh and breast with his hands. As the victim was sleeping on her side and facing away from her, she saw the Accused touch the victim on the side of her thigh and breast. She also confirmed that the Accused had touched the victim on her bare thigh. After that, PW4 went back to sleep.[note: 44]

45     The next day, she asked the victim if she knew that the Accused had touched her but she could not recall in detail the victim’s response. PW6 also came by to ask her about the incident and she told him what she saw. After that, PW1 then asked to see the victim, PW6 and herself, and asked them what happened. PW4 told PW1 what she saw.[note: 45]

46     With regard to the brightness of the room during the time of the incident, PW4 explained that the room was dim, but there were two night lights so it was bright enough for them to see where they walked.[note: 46]

47     PW4 also confirmed that she was close to the victim at the material time, but did not remain close after they moved out of the Aljunied unit.[note: 47]

Evidence from PW5 (the victim’s ex-schoolmate)

48     PW5 was the victim’s schoolmate in secondary school and was quite close to her at that time. They got to know each other sometime in 2012 when they were in secondary four.

49     PW5 gave evidence of the victim coming to school looking haggard and not eating much. As this was affecting the victim’s schoolwork, PW5 and other friends tried to approach her to ask if she was encountering any problems in school or at home. After some time, the victim told PW5 that she was touched at night by her stepfather, but she did not want to speak out for fear of the repercussions. In particular, the victim told her she shared a room at home with her step-siblings as she needed to help take care of them. The door to the bedroom was not locked, and at night, she would feel that she was being touched and open her eyes to see the Accused touching her. Upon hearing this, PW5 advised her to inform her parents or the teachers and counsellors.[note: 48]

50     PW5 confirmed that she was no longer in contact with the victim at the time of the trial, and they lost touch after graduating from secondary school.

Evidence from PW6 (the victim’s twin brother)

51     PW6 was the victim’s twin brother, and gave evidence that sometime in the later part of 2015, he found out from PW4 that she saw the Accused touch the victim on her breast while the victim was sleeping in the early hours of the morning[note: 49]. When he asked her to be more specific, PW4 told him that this had been happening for the past couple of nights. In particular, the Accused would enter the bedroom on the ground floor and this would occur before he woke the other children up for school.[note: 50] PW6 asked the victim about this but she told him that she did not know this had happened. PW6 wanted to inform their mother, but the victim told him not to because she was afraid their mother would not believe her and that she was making things up to tear the family apart. PW6 respected this decision, but told PW4 to lock the bedroom door. He himself made sure that the bedroom door was locked for the next few nights as well after everyone went inside.[note: 51]

52     About two weeks later, PW6 received a phone call from PW5 to inform him that she just got off the telephone with a crying victim who told her she had been touched by her stepfather that morning. PW6 recalled that he was serving National Service (“NS”) and was in camp at that point. After receiving this phone call, he took the afternoon off[note: 52] and came home to confront the victim and PW4. He asked the victim what happened and she told him that the Accused had touched her that morning. He then asked PW4 how this had happened since he had given instructions for the bedroom door to be locked. PW4 explained that the door had to be unlocked because the Accused got angry one morning when he found it locked, and shouted at the children.[note: 53]

53     PW6 told the victim that he could not stay silent about this. The victim begged him not to but he went ahead to tell their mother, PW1 about this. PW1 then told him that she would inform their father about this.[note: 54]

54     PW6 confirmed that PW1 would ill-treat the victim and be quite abusive with her punishments. On the other hand, he was mostly doted on by PW1 when he was younger and was closer to her than anyone else then. PW6 was aware that the victim did not trust their mother, and she would sometimes rant about the unfair treatment she received.[note: 55] He also agreed that the victim’s relationship with PW1 and the Accused was not good.[note: 56]

Evidence from PW7 Deputy Superintendent of Police Liao Chengyu (“PW7 DSP Liao”)

55     PW7 DSP Liao was the first investigation officer for this case, and recorded the second statement from the victim on 17 August 2022[note: 57].

56     He explained that no statement was recorded from the victim’s grandmother because her family had objected on the basis of the grandmother’s old age and health.

57     He later handed over the case to Assistant Superintendent of Police Seow Seah Hui (“PW8 ASP Seow”).

Evidence from PW8 ASP Seow

58     PW8 ASP Seow took over the matter sometime in October 2022, when the investigations were largely completed, and just before the Accused was charged.

59     She recorded a third statement from the victim on 5 April 2023[note: 58] and to her recollection that was the first time she met the victim. She confirmed that she had drafted the first set of charges[note: 59], under the direction and guidance of PW7 DSP Liao.

The Defence’s Case

60     At the end of the Prosecution’s case, I found that a prima facie case had been made out against the Accused on the charges, and called on him to give his defence accordingly. The Accused chose to give evidence in his own defence.

Evidence from the Accused

61     The Accused married PW1 in October 2003. Before his marriage, PW3 was introduced to him by PW1 as his brother-in-law.[note: 60] PW3’s three children (the victim and her two brothers) addressed him as “Uncle” in Teochew, and he was given to understand they were his niece and nephews.[note: 61] It was not until the start of police investigations that he realised they were the children of PW1 and PW3.[note: 62]

62     After his marriage with PW1, they lived in a condominium unit at Gilman Heights. PW3’s three children would come to visit but not sleepover. Eventually, PW1 wanted both families to live together, so they moved to the Bury Road address. The Accused was initially hesitant, but he eventually gave in because he considered that PW3’s three children were still young.[note: 63]

63     The Accused and PW1 moved in with their triplets and two helpers first, followed by PW3, his three children and “Granny”. The Accused was told by PW1 that “Granny” was her nanny.[note: 64]

64     The Bury Road address was renovated to add a bedroom and living space to accommodate both families. The new bedroom was occupied by the victim and “Granny”. The Accused and PW1 occupied the master bedroom, the triplets and the two helpers occupied the second original bedroom and PW3 and his two boys occupied the third original bedroom. The triplets would occasionally sleep over in the master bedroom as well, although the Accused could not be sure how often this occurred.[note: 65] There was only a king-sized bed in the master bedroom, and the Accused could not remember if there were any cots.[note: 66]

65     The Accused described his relationship with PW3 and his three children as good,[note: 67] and denied that he had ever touched the victim’s chest or vagina in the course of staying at the Bury Road address.

66     In 2009, they moved out of the Bury Road address and moved to 43 Jalan Loyang Besar.[note: 68]

67     At this point, the Accused was working in his father’s company, with his office location at Bukit Merah. This was near the victim’s secondary school. However, the only time the Accused ever picked her up from school was once when he drove along the main road outside the school and happened to spot the victim waiting at the bus stop opposite the school. He then stopped his car, signalled for her to get in, and sent her home to 43 Jalan Loyang Besar. Nothing unusual happened during this occasion[note: 69], and the Accused denied touching the victim on her chest or thigh while at the car park of 43 Jalan Loyang Besar.

68     In 2010, both families moved to the Aljunied unit because PW1 and PW3 wanted to start a family business (Bartak Boutique Café). The Aljunied unit was rented by PW3 and he was also the owner of the business.[note: 70]

69     At the Aljunied unit, PW3, his three children and “Granny” slept on the second floor, while he, PW1 and their nine children slept in the ground floor bedroom. They started off with a double decker bed, but when the twins and quadruplets were born, renovations were done to install a platform in the room and to increase the floor area. PW1 would sleep on the top deck and the children at the bottom. The Accused would sleep in the double decker bed which was now moved to the corridor.[note: 71] The Accused did not remember if the victim would sometimes sleep in the ground floor bedroom[note: 72], and denied that he had ever touched her breasts or thighs at the Aljunied unit.

70     The Accused admitted that there was an occasion when they were staying in the Aljunied unit when PW3 confronted him over an allegation that he had molested the victim. PW3 did not provide details of this molest. The Accused was shocked and disappointed at this allegation but did not say anything as he did not want to affect the relations of both families. At that point, he did not think this was a serious allegation.[note: 73]

71     The Accused, PW1 and their nine children moved to Joo Seng Road in 2016. PW3 and his three children moved to Pasir Ris.

72     The Accused and PW1 divorced in 2019, with final judgment in 2020. PW1 then tried to pressure the Accused into selling the unit at Joo Seng Road. A few days before he was called down to the police station for this allegation, PW1 told him that if he did not sell the unit at Joo Seng Road, she would see him in court. She also told him that she had gone for a police investigation, and asked him to be careful. However, she did not provide any details on the allegations.[note: 74]

73     When asked if he knew why the victim would make a false report against him, the Accused said that he did not know. He had told the police during investigations that it might have started when he got married with PW1 and the victim felt that she had lost her mother. Also, the victim might have felt that he betrayed her mother when he divorced her in 2019. However, the Accused admitted this was guesswork on his part.[note: 75]

74     The Accused agreed that he had no disputes with PW4 and did not know of any reason why PW4 would lie and give false evidence in court against him.[note: 76]

Court’s Decision on Conviction

The law – elements of the offence

75     The charges against the Accused were framed as outrage of modesty offences, under s 354 of the 1985 Penal Code; and s 354(1) and s 354(2) of the 2008 Penal Code. For all four charges, the following two elements[note: 77] must be proven:

(a)     criminal force was used on the victim; and

(b)     the Accused knew it to be likely that this would thereby outrage the modesty of the victim.

76     The facts which the Prosecution needed to prove to make out the actus reus of each charge i.e. the facts which constitute the criminal force, are set out below:

1st charge (DAC 916738/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s chest over her clothes.

2nd charge (DAC 916739/2022)

Sometime between 15 March 2005 and 2006, in the Bury Road address, the Accused touched the victim’s vagina with his fingers, and made contact between his penis and her vagina.

3rd charge (DAC 916740/2022)

Sometime between 15 March 2009 and 15 August 2010, at the carpark of 43 Jalan Loyang Besar and in a motorcar, the Accused touched the victim’s bare thigh and breast over her clothes.

4th charge (DAC 916741/2022)

Sometime in 2015, at the Aljunied unit, the Accused touched the victim’s thigh and breasts.



An assessment of the victim’s evidence

77     The Prosecution’s case relied solely on the victim’s evidence for the first three charges, and an assessment of whether her evidence was “unusually convincing”[note: 78] therefore had to be made. The relevant considerations would include the victim’s demeanour, and the internal and external consistencies of her evidence.[note: 79]

78     In my assessment, the victim’s evidence was largely consistent and credible. In court, she came across as having a mild character. Testifying in a courtroom setting clearly took a significant amount of effort on her part, and she broke down a few times in the course of giving evidence. She was never forceful in putting across her answers, and on some occasions, even gave up trying to give an explanation. In short, she did not come across as someone who would deliberately concoct an elaborate history of false sexual assault and go to the trouble of coming to court to defend it. Naturally, demeanour alone was not determinative and some fault could even be attributed to her for her refusal to give an explanation at times, as the Defence had quite reasonably pointed out in their closing submissions. However in my view, her lack of forcefulness actually cohered with the general background she painted of a young victim who suffered alone and in silence throughout a long history of sexual assault. I elaborate more on this below.

79     The victim gave evidence of the facts as set out in the charges and at [76] above, and by itself, her evidence was internally consistent.

80     The Defence tried to argue that there were some inconsistencies within her evidence, some aspects of which were based on guesswork and assumptions. I examine two of these below:

(a)     With regard to the 1st charge, the victim’s evidence was that she was asleep when the Accused came through the connecting door into her bedroom. If so, then she could not possibly have seen him come through the connecting door. In cross examination, she candidly agreed that she would not have seen him come through the door and her evidence had been based on a logical assumption since that was the only way he could have entered the bedroom. I accepted the victim’s explanation and noted that making assumptions based on logic was natural in normal conversations, and something commonly done by everyone.

(b)     With regard to the 2nd charge, the Defence also pointed out that the victim’s evidence was that the Accused had touched her in the middle of her thigh, but this appeared to be inconsistent with the fact that she had been wearing a school pinafore at that time, which ended just a bit above her knee. Again, I did not think this was an inconsistency. How long the pinafore was, how it had been tucked in when she sat, and where exactly on her thigh she was touched, were all peripheral facts which did not go to the core of her evidence that she had been touched on her bare thigh, in a way which made her uncomfortable. The victim had also explained that when she sat down, she had folded her pinafore between her legs, exposing more of her thigh as a result.[note: 80] I accepted this explanation.

81     The greatest challenge to the victim’s evidence came from what appeared to some external inconsistencies between her evidence in court and her statements to the police.

Inconsistencies between the victim’s evidence and her statements

82     The most significant inconsistency lay in the number of incidents which occurred at the Bury Road address. In cross examination, the victim initially confirmed that apart from the four incidents reflected in the charges, and other touching incidents in the Aljunied unit, there were no other incidents. However, when cross examined on her statements, she later clarified that in fact there had been multiple instances of assault even at the Bury Road address, although she could not remember the details for the rest of them.

83     In her police statement recorded on 21 May 2021 at 11.54am (“D1”)[note: 81], the victim described two incidents at the Bury Road address where the Accused had asked her to go to the master bedroom and then (i) tried to penetrate her vagina with his penis which was “half erected”, used one finger to penetrate her vagina, and moved his finger in and out of her vagina a few times, and (ii) a few weeks later, penetrated her vagina with his fingers and moved his fingers in and out a few times. This was different from her evidence in court where there were only two incidents at the Bury Road address, one involving the touching of her chest on her own bed, and the other an attempted penetration with his penis in the master bedroom. When asked whether there was a total of two or three incidents at the Bury Road address, the victim explained that there were a lot of incidents which happened when she was young. She was not able to remember every single detail anymore. However, she confirmed that the incidents in her police statements had occurred, and she could also still remember the details of the two incidents which were set out in the first two charges.[note: 82]

84     Furthermore, it was only in her police statement recorded on 5 April 2023 at 10.15 a.m. (“D2”)[note: 83] that she first mentioned an incident at the Bury Road address where she was on her upper bunk bed and the Accused touched her chest i.e. the 1st charge.

85     In my view, this inconsistency was not fatal to the credibility of the victim’s evidence as a whole. It is apposite at this point to refer to the reminder by the High Court in PP v Singh Kalpanath [1995] 3 SLR(R) 158 at [60] to give adequate allowance to the “human fallibility in retention and recollection”. While this certainly does not excuse every inconsistency in a witness’ evidence, it is an important reminder to assess the evidence as a whole, and not to lose sight of the forest for the trees.

86     With regard to the incidents at the Bury Road address, these were supposed to have taken place about 15 years prior to the time the police report was first lodged and statements recorded from the victim. The victim would have been only about 9 – 10 years old at the time of the incidents. It would therefore be perfectly reasonable for her not to remember the details of all the incidents, or even exactly how many incidents there were. The victim’s explanation that there had been many incidents when she was young and that she was not able to recall every single one, was a plausible explanation which I accepted. This was bearing in mind that the first incident she described in her first statement (D1) was largely similar to the incident set out in the 2nd charge. There was therefore no dramatic change in the facts, just the question of how many times this had happened.

87     While the Defence tried to draw a detailed comparison of the account in the victim’s statement as set out at [83] above to her account in court in relation to the first two charges, it was not the victim’s evidence that these related to the same incidents at all. Her position was that she could not remember the details of each incident, and there had been many such incidents. However, she confirmed that the details of the incidents she gave evidence of in court were something that she could still remember. I therefore saw little value in nitpicking over differences between the account in the victim’s statement at [83] above and her evidence in court. For example, whether it was the Accused or the victim who had removed the victim’s panties, and whether one finger or a few fingers had been used to rub or touch her vagina. There was no value to this exercise because there was no basis to think that they even related to the same incidents. The question was whether it was reasonable to accept the victim’s explanation that the accounts in the statement related to other incidents for which she did not now specifically remember. I believed it was.

88     It was suggested to the victim during cross examination that her memory was “hazy” and she “genuinely” could not remember what may or may not have happened at the Bury Road address[note: 84]. The victim reasonably agreed. Interestingly, it was not put to the victim that she had deliberately lied about the incidents. It did not seem to me possible that the incidents, whether those as set out in her statement or those as related in court, could have been birthed from nothing as a result of a hazy memory. Either the victim was lying that she had been sexually assaulted by the Accused, or she was not. I could find no basis to think that she was lying. However, I accepted that her memory on the details could well be hazy.

89     The victim was also cross examined by the Defence on other inconsistencies between her statements and her evidence in court, but I did not find these to be material:

(a)     In her statement at D1, the victim mentioned only six step-siblings – “a triplet (girls), a pair of twins (one boy and one girl), and a youngest daughter from their marriage.” This was different from reality (see SOAF) and her own evidence in court that her mother had nine children from her second marriage. When asked about this discrepancy, the victim had no explanation to offer.[note: 85] However, I found that this was merely a peripheral inconsistency and I accepted that this was not something the victim would have been focusing on at the time of giving the statement. Considering the number of step-siblings she had, and the fact that it had been many years since she took care of them, it was not unreasonable for her to have forgotten how many and what gender they were. When she took care of them, the twins and quadruplets were only one or two years old, and she also admitted in court that she did not know their names.

(b)     In her statement at D1, when the victim described the incident of the Accused attempting to penetrate her vagina in the master bedroom of the Bury Road address, she mentioned that everyone else was at home and her grandmother was in the living room watching television. In court, she was not sure where everyone was. She had no explanation for this difference, although she mentioned that she assumed in her statement that everyone else was at home, and her grandmother was watching television.[note: 86] I did not find any inconsistency here, but rather a problem with recollection by the time of the court hearing.

(c)     In her statement at D1, the sequence of events which the victim gave for the incident at 43 Jalan Loyang Besar was slightly different. In D1, she mentioned that the Accused had touched her thigh area before touching her right breast. The Accused had also felt up her right arm sleeve and touched her arm. In evidence, the victim described the Accused touching her breast first before touching her thigh, and confirmed that the Accused did not touch other parts of her body. When asked about this discrepancy, the victim had no explanation to offer.[note: 87] I did not think this was a material inconsistency that detracted from the victim’s credibility. This was an incident that was supposed to have taken place more than 10 years ago, and getting the sequence of touches wrong, and forgetting that the Accused had also touched her arm, was not unreasonable. Ultimately she never wavered from her evidence that she had been touched on both her breast and her thigh. This was also true in D1.

(d)     In her statement at D2, with regard to one of the incidents at the Bury Road address, the victim mentioned that she could not be sure that the Accused had tried to penetrate her although she was sure he rubbed his penis on her vagina. In her evidence in court, she maintained that she knew the Accused was trying to put his penis inside her vagina because she felt a pressure and a force on her vagina. When asked to explain this apparent discrepancy, the victim explained that she thought “penetration” meant to “go all the way inside” but she was not sure if that was what the Accused was trying to do.[note: 88] I accepted her explanation. In any case, the core of her evidence, as well as what was alleged in the charge, was that the Accused had made contact between his penis and her vagina. This was something the victim never changed her evidence on. How much force was actually used, or whether the Accused was actually attempting to penetrate the victim’s vagina, was not directly relevant to the charge, and certainly not something I would expect a 9 – 10 year old girl with limited sexual knowledge to be focusing on and remembering at the time of the incident.

(e)     In her third statement recorded on 5 April 2023 (“D3”), in relation to the incident at the Bury Road address where the Accused had touched her chest, the victim stated that she opened her eyes after the Accused had stopped touching her, and she saw him leaving the room. In evidence, she stated that she had opened her eyes while the Accused was touching her, and she could see his face through the gap in the wooden railing on her bunk bed. When asked about this, the victim explained that she had peeked at the Accused while he was touching her, and only opened her eyes fully after he left.[note: 89] I accepted this explanation as a reasonable one.

(f)     In her statement at D1, with regard to the incident at the Aljunied unit, the victim mentioned that she had felt touches on her thighs and over her shorts. In court, her evidence was that the Accused had touched her thigh on her bare skin. When asked, she maintained that he had touched her skin, and she was not sure why her statement was different.[note: 90] I noted here that the victim’s explanation was corroborated by the evidence from PW4 that the Accused had indeed touched the victim on her bare thigh.

90     As a whole, the victim’s evidence was clear, coherent and internally consistent. While there was some inconsistency between her evidence and her police statements, I did not find these inconsistencies material enough to impeach the credibility of her evidence as a whole, or to throw into doubt her evidence relating to the charges.

External consistency of the victim’s evidence with other evidence

91     I also noted that the victim’s evidence was externally consistent with other aspects of the evidence.

92     In particular, the victim’s evidence with regard to the 4th charge was directly corroborated by the evidence from PW4, who was an eye-witness. PW4’s evidence was simple and clear – the victim would usually sleep with them on the ground floor bedroom of the Aljunied unit, and one night she saw the Accused touch the victim on her breast and thigh. While PW4 candidly admitted that the victim was sleeping facing away from her, she insisted that she saw the Accused touch the victim’s thigh and breast and that the Accused had touched the side of the victim’s thigh.

93     PW4 was the Accused’s biological daughter and there was nothing on record to indicate any possible reason why she would give false evidence against her own father. The evidence also indicated that while she had been relatively close to the victim at the time of the incident, the two of them had since drifted apart and were not keeping in contact by the time the police report was lodged, or when the matter was heard in court. I could therefore find no reason to doubt her evidence as objective, and accepted that she had indeed seen the Accused touch the victim on her breast and thigh areas one night at the Aljunied unit. Even if she had been mistaken and did not see the touches directly on the victim since the victim was facing away from her, she certainly saw the Accused kneeling down next to the victim and moving his hands near the victim’s breast and thigh areas. This was still directly corroborative of the victim’s evidence. I noted that the Accused did not offer any other explanation regarding why he might have been found in that compromising position, since his evidence was that the incident never took place at all.

94     In addition, PW3’s evidence of the confrontation he held with the Accused after learning of the incident in the Aljunied unit was also another independent corroboration of the 4th charge. I found it significant that the Accused, when first confronted with an allegation of molesting the victim, chose to keep quiet. I did not find his explanation for his behaviour reasonable, and took the view that his silence was an implicit admission to what he had done. I elaborate more on this below.

95     While there were some differences in the evidence from PW3, PW4 and PW6 with regard to how many times PW4 had seen the Accused touch the victim, who was the one who told PW6 about the incidents, and whether PW3 had asked the victim if she wanted to lodge a police report, these were all minor details that did not detract from the core evidence that (a) PW4 had seen the Accused touch the victim on her breast and thigh, and had asked the victim about it the morning after; and (b) PW3 came to know of this eventually and confronted the Accused, who remained silent.

96     The evidence from PW5 was not directly corroborative of any of the sexual assault incidents, but it showed that the victim’s general behaviour in school when she was in secondary 4 (2012) was consistent with her evidence of a long history of sexual assault at home. PW5’s evidence also showed that at least from 2012, the victim had made mention of such experiences to someone. As I had no reason to doubt the evidence from PW5, who was no longer close to either the victim or the victim’s brother PW6 by the time of the court hearing, I accepted that the victim had indeed told PW5 in 2012 that she had been touched by her stepfather at night. This did not prove that the incidents happened, only that the victim had told PW5 that it did. In other words, the victim’s behaviour in 2012 was consistent with the account that she related in court.

97     Evidence from PW3 and PW6 also corroborated the background history given by the victim that she was not close to any of her family members and that she did not share a good relationship with her mother PW1. Clearly she was not lying or exaggerating about this aspect of her life. When seen in this context, it was easy to accept her explanation for why she had kept quiet all these years i.e. she had no one to turn to.

98     These different sources showing the external consistency of the victim’s evidence from different angles reinforced the victim’s own evidence, and had the effect of lending it the “ring of truth”[note: 91] which made her evidence “unusually convincing”.

Accused’s evidence was not credible

99     In contrast to the evidence from the victim, the Accused was evasive and difficult during cross examination, often not answering the question or contradicting himself.

100    In particular, I was dissatisfied with his evidence regarding his relationship with the victim. It was inexplicable at best, and dishonest at worst. Given the simplicity of the question i.e. did he or did he not know that the victim was PW1’s daughter, his refusal to give a proper answer raised serious doubts in my mind as to his credibility as a witness. He insisted that PW1 had told him that the victim was his niece, and therefore he thought that she was his niece. Yet, he also admitted knowing that the victim’s mother was PW1[note: 92]. In his statement recorded on 24 May 2021 (“P10”), he also claimed that the victim only stayed with them sometimes and not on a daily basis[note: 93], which was different from the undisputed evidence set out in the SOAF. When asked why he lied in court about only knowing that the victim was PW1’s daughter when the police investigations commenced, he refused to give a straight answer, and maintained that he knew she was PW3’s daughter and that PW1 had told him that she was his niece.[note: 94]

101    In my view, the answers given by the Accused on this point showed that he was trying to distance himself from the victim. Given the number of years the Accused had been living with PW1 and her children with PW3, and the fact that there was no evidence whatsoever that any of the parties had tried to hide their relationship, I found that the Accused must have known that the victim was PW1’s daughter and therefore his stepdaughter. He was clearly not being forthright in court on this point.

102    In addition, I was also dissatisfied with his evidence regarding the confrontation between him and PW3 when PW3 came to know about the incident in the Aljunied unit.

103    When questioned on why he had not defended himself when PW3 first accused him of molest in 2015, he explained that his priority was family, and that no details were given to him, so “what is there to defend?”[note: 95] This was not a reasonable explanation as I would have expected an innocent person who had been suddenly accused of such a serious allegation as having molested his own stepdaughter to deny it outright, whether or not details were provided. His failure to do so was telling.

104    The Accused’s explanation that he had kept silent to “preserve the family bonds” was also weak and illogical[note: 96], as one would have expected that such misunderstandings should be cleared up as soon as possible if the Accused was really interested in preserving any bonds. In P10[note: 97], the Accused explained that he did not say anything when PW3 first accused him of molestation because he did not want to “tarnish” the family relationship and if the victim wanted to lie to her father, the Accused was fine to be the “scapegoat” because of the family. In my view, this altruistic and self-sacrificial claim did not sit well at all in the context of the evidence he gave himself of a family relationship where he was not close to the victim and her direct siblings. More fundamentally, this explanation made no sense.

105    When pressed on this point of confrontation and in particular why he did not deny the allegation, the Accused later said that he had clarified to PW1 that he had not done it, although this appeared to have taken place only after investigations commenced, which was years later.[note: 98] Ultimately, the evidence remained that when he was first confronted on an allegation of sexual assault against the victim in 2015, he never denied it.

106    Overall, from the way the Accused answered or refused to answer questions in cross examination, I had little faith in his credibility as a witness.

107    For completeness, I should also mention that there were other aspects of the Accused’s evidence which were raised by the Prosecution, but which I did not eventually put very much weight on.

108    The Accused was asked several times what reason there could be for either the victim or PW4 to make false allegations against him. It was also pointed out to him that he appeared to have changed his answers several times e.g. that the victim had wanted to use the police report to help PW1 pressure him into selling his property at Joo Seng Road, or that she did not like him as she may have felt like she lost her mother when the Accused came into her life. While I agreed that in answering these questions, the Accused was generally evasive, I did not think it unreasonable for him to grapple with the possible reasons the victim and PW4 might have for falsely accusing him, or to have come up with different possibilities at different stages. It was clear that he did not know of any reason, but I did not fault him for trying to think of the possibilities.

109    The Prosecution had also questioned the Accused on some inconsistencies between his evidence in court and the contents of his statement at P10, but I did not think these were material. For example, the Accused had not mentioned in the statement that the triplets had their own separate room at the Bury Road address; he did not mention that he had picked up the victim from school once; and he was sure in his statement that the victim never slept on the ground floor bedroom of the Aljunied unit. The Accused’s explanation for these inconsistencies was a lack of recollection, which I accepted. These related to a time in his life several years prior to giving his statement to the police, and it was reasonable for him to have forgotten these details when giving his statement.

110    In trying to explain away some of these inconsistencies, the Accused claimed that he had been detained for a night at the police station, developed a back pain and had to go to A&E the next day. He was therefore on painkillers when he recorded the statement[note: 99]. This was later proved by the Prosecution to be false because the arrest and medical records showed that the statement was recorded a few hours after the Accused was arrested on 24 May 2021, and the Accused only went to the hospital the next day on 25 May 2021. While this was certainly not satisfactory on the part of the Accused, I gave him the benefit of the doubt that he might have genuinely forgotten this detail in giving evidence. I did not think it uncommon that the sequencing of events in one’s memory might get mixed up.

111    However, I did find it telling that on more than one occasion when the Accused was directly confronted with an allegation of molest, his answer was not an outright denial. In P10, when he was first asked about the allegations of molest at the Bury Road address, his answer was that he did not remember, or that he did not think it happened and that he did not believe it was true.[note: 100] When he was asked in court about why PW4 would lie against him, the Accused said that he did not know if PW4 had lied or not, and explained that it was difficult for him to accept what PW4 said because of the inconsistencies between her account and the victim’s account. These responses struck me as odd. Why did it matter if there were inconsistencies in PW4’s evidence if he was innocent of the allegations? He may not know why PW4 lied, but he should have had no hesitation in saying that she had lied.

112    Based on the above, I took the view that the Accused’s evidence was not credible, and in some respects rather telling of his guilt.

No reason for victim and PW4 to lie in court

113    I found nothing to suggest that the victim or PW4 had lied in court, or had any reason to do so.

114    In cross examining PW1, the Defence had suggested that PW1 convinced or spoken to the victim to make her file the police report so as to pressure the Accused into selling his property at Joo Seng Road. PW1 vehemently denied this, and stated that she only knew that the victim had lodged a report after she was called up by the police for investigations. She also stated that she had not spoken to the victim for about two years prior to the report being lodged. This was corroborated by the victim, and I found it unlikely, especially given the evidence that the victim and PW1 did not even share a good relationship, that the victim would make a false report just for PW1. I noted that the Defence did not eventually pursue this point as well.

115    By the time the police report was lodged, the Accused and the victim had already been living apart for several years. It was therefore unlikely that the victim had made the report because she wanted to get out of the house, or that she was unhappy with the Accused for coming into her life.

116    As for PW4, the Accused was not able to come up with any suggestion as to why she would lie against her own biological father.

117    There was therefore no basis to find that the victim or PW4 had any reason to make a false allegation against the Accused.

Amendment of charges

118    The Defence took issue with amendments which had been made to the charges over the course of time. In particular, the 1st charge was drafted in October 2022, and read that the Accused had touched the victim’s chest over her clothes and touched the victim’s vagina with his fingers. At trial, this charge had been amended to only include the reference to touching the victim on her chest over her clothes. The Defence pointed out that there was no mention of the Accused touching the victim’s chest at all in her first two police statements recorded prior to October 2022, and therefore queried where those details had come from.

119    There was no ready explanation for this from PW8 ASP Seow who had drafted the charges, and who confirmed that she would not have made up facts to include in the charge. In cross examination, PW8 ASP Seow also agreed that the details of the charges must have come from the victim, and that there must have been other interviews the victim had with the police which were unrecorded.[note: 101]

120    I accepted that this must have been the case as well, and noted that this meant that from as early as before October 2022, the victim must have already mentioned to the police about an incident where the Accused had touched her chest i.e. the 1st charge.

121    Apart from this takeaway, I did not think that the issue of the charge amendments assisted me in my decision. The charges were drafted by the police and the Prosecution, and did not constitute statements made by the victim. She had no control over how the charges were drafted, and this process is also often dependent on the case strategy and assessments made by the police and Prosecution. Just because the police and Prosecution had initially used the word “fingers” instead of “finger”, or “rub” instead of “made contact with” was not relevant to my assessment of the victim’s credibility or consistency. There might well be occasions when amendments to charges raise suspicions as to whether the victim had materially vacillated between different versions, but I did not find this to be so in the present case. The amendments were not material.

Delay in reporting

122    The victim only lodged the police report more than five years after the last alleged incident. I should reiterate the general point that a delay in reporting in and of itself is not a reason to disbelieve a victim, and there is no general rule requiring victims of sexual offences to report the offences to the police immediately.[note: 102]

123    In the present case, the victim explained that she was not close to any of her family members at the material time and therefore did not tell anyone of the assaults. As mentioned above, this background was corroborated by evidence from PW3 and PW6. I noted that soon after the last incident, the victim moved out of the Aljunied unit and was no longer staying with the Accused. It was only after she started dating someone who encouraged her to make a report, and when she felt that her step-siblings were older and could take care of themselves, did she then find the courage to make a report. I found this explanation reasonable and accordingly did not fault the victim for the delay in reporting.

Time range set out in the charges

124    I was also satisfied that the time periods set out in the charges were sufficiently proven.

125    With regard to the 1st and 2nd charges, the time period set out was between 15 March 2005 and 2006. According to the SOAF, the victim was living at the Bury Road address from 15 March 2005 onwards. The victim’s evidence was that the incidents in the first two charges took place at the Bury Road address when she was in primary three or four. According to her birth year, as well as the school arrangements set out at paragraph 5 of the SOAF, these would have been the years 2005 and 2006. Therefore, the period set out in these charges were made out on the evidence.

126    With regard to the 3rd charge, the time period set out was between 15 March 2009 and 15 August 2010. This corresponded with the undisputed evidence that the victim and her family were living at 43 Jalan Loyang Besar then. The victim’s evidence was that this incident took place when they were living at 43 Jalan Loyang Besar, and she was in secondary school at that time. The period set out in the charge was therefore made out on the evidence.

127    With regard to the 4th charge, the time period set out is “sometime in 2015”. This was consistent with the victim’s evidence regarding the last time she was molested at the Aljunied unit.

Knowledge on the part of the Accused

128    Given the absence of any other explanation from the Accused, the relationship of stepfather and stepdaughter between the Accused and the victim, and the nature of the touches, it was an irresistible inference that when the Accused used such criminal force against the victim as set out in the four charges (see [76] above), he was intending to outrage her modesty.

Conclusion on conviction

129    The burden was on the Prosecution to prove the four charges against the Accused beyond a reasonable doubt.

130    With regard to the first three charges, the victim’s evidence was not directly corroborated. As such, the “unusually convincing” standard should apply. Based on my assessment of the evidence as set out above, I was satisfied that the victim’s evidence as a whole met the standard of being “unusually convincing”. This would include her evidence for the 4th charge, which was in any case, also corroborated by evidence from PW4.

131    The Accused’s defence was that of a bare denial. This was not objectionable in itself, but given the unsatisfactory way in which he gave evidence, I was of the view that he had not managed to raise a reasonable doubt in the Prosecution’s case. As such, I was satisfied that the Prosecution had proven all four charges against him beyond a reasonable doubt.

Sentencing

Antecedents

132    The Accused was untraced.

Submissions on sentence

133    There was no dispute between parties that the relevant sentencing frameworks were as set out in Kunasekaran s/o Kalimuthu Somasundara v Public Prosecutor [2018] 4 SLR 580 (“Kunasekaran”) for the charges under s 354 of the 1985 Penal Code[note: 103] and s 354(1) of the 2008 Penal Code (the 1st, 2nd and 4th charges), and GBR v Public Prosecutor [2018] 3 SLR 1048 (“GBR”) for the charge under s 354(2) of the 2008 Penal Code (the 3rd charge).

134    Both sentencing frameworks took into account similar offence-specific aggravating factors[note: 104] such as:

(a)     The degree of sexual exploitation, including considerations of the part of the victim’s body that was touched, how the offender touched the victim and the duration of the outrage of modesty;

(b)     The circumstances of the offence, including the presence of premeditation, the use of force or violence, the abuse of a position of trust, the exploitation of a vulnerable victim and other aggravating acts accompanying the outrage of modesty; and

(c)     The harm caused to the victim, whether physical or psychological.

135    The relevant sentencing bands for the charges under s 354 of the 1985 Penal Code and s 354(2) of the 2008 Penal Code as set out in Kunasekaran at [49] are as follows:

Band

Description

Sentence

1

Cases which do not present any, or at most one, of the aggravating factors.

Less than five months imprisonment

2

Cases where there are two or more of the aggravating factors present.

Five to 15 months’ imprisonment

3

Most serious instances of aggravated outrage of modesty by reason of the number of aggravating factors, including cases involving the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust and/or the use of violence or force.

15 to 24 months’ imprisonment



136    The relevant sentencing bands for the charge under s 354(2) of the 2008 Penal Code as set out in GBR at [31] – [38] are as follows:

Band

Description

Sentence

1

Cases which do not present any, or at most one, of the aggravating factors.

Less than one year’s imprisonment

Caning is generally not imposed

2

Cases where there are two or more of the aggravating factors present.

One to three years’ imprisonment

Caning will nearly always be imposed, with a suggested starting point of at least three strokes

3

Most serious instances of aggravated outrage of modesty by reason of the number of aggravating factors, including cases involving the exploitation of a particularly vulnerable victim, a serious abuse of a position of trust and/or the use of violence or force.

Three to five years’ imprisonment

Caning ought to be imposed, with a suggested starting point of at least six strokes.



137    Bearing the above frameworks in mind, the parties submitted for the following sentences:

Charge

Prosecution’s position

Defence’s position

1st charge DAC 916738-2022

Section 354 of the Penal Code (Cap 224, 1985 Rev Ed)

14 – 16 months’ imprisonment (Band 3)

5 months’ imprisonment (upper end of Band 1 or lower end of Band 2)

2nd charge DAC 916739-2022

Section 354 of the Penal Code (Cap 224, 1985 Rev Ed)

22 – 24 months’ imprisonment (Band 3)

14 months’ imprisonment (higher end of Band 2)

3rd charge DAC 916740-2022

Section 354(2) of the Penal Code (Cap 224, 2008 Rev Ed)

24 – 30 months’ imprisonment (middle of Band 2)

10 months’ imprisonment (upper end of Band 1)

4th charge DAC 916741-2022

Section 354(1) of the Penal Code (Cap 224, 2008 Rev Ed)

12 – 14 months’ imprisonment + at least three strokes of the cane (1.5 months imprisonment in lieu of caning)

(Band 2)

5 months’ imprisonment (Band 1)

 

Global sentence of 46 – 54 months’ imprisonment + at least three strokes of the cane (1.5 months’ imprisonment in lieu of caning)

Global sentence of 24 months’ imprisonment



Prosecution’s arguments on sentence

138    The Prosecution relied on the following offence-specific aggravating factors in their sentencing submissions:

(a)      Abuse of trust over a long period of time. As the victim’s stepfather, the Accused was in a position of trust and responsibility towards her, and had breached this when he committed the offences over the course of 10 years. It was also pointed out that the offences had mostly been committed in the sanctity of the family home.

(b)      The victim was especially vulnerable. The victim was very young (between 8 – 13 years old) when the offences in the first three charges were committed against her. The offences also first commenced against the backdrop of a fractured family when the victim had to contend with significant changes in her life such as a stepfather and new living arrangements. In addition, the offences in the 1st and 4th charges had taken place when the victim was asleep. The fact that the victim was not close to her mother or any of her other family members compounded her vulnerability as she had no one to turn to.

(c)      Significant harm caused to the victim. A victim impact statement was tendered, wherein the victim spoke about the emotional and psychological harm she suffered and still suffers from. She wrote about how she had been “scarred badly” and how the Accused’s actions made her life “a living hell”. The Accused made her feel disgusted about herself, and she hated herself for not having stood up to his actions earlier.

(d)      There was premeditation. It was pointed out that the offences had mostly taken place at night, with the Accused specifically targeting the victim when no one else was present. It was argued that the Accused had picked and planned the moments to violate the victim when he believed he could get away with it.

139    With regard to offender-specific factors, the Prosecution submitted that the Accused should not be considered a first-time offender, given that the charges showed that he had been abusing the victim over the course of 10 years, and that he had shown no remorse.

140    As the Accused was above the age of 50 years and could no longer be caned, the Prosecution submitted that with regard to the 4th charge, a term of 1.5 months imprisonment in lieu of caning ought to be imposed in order to achieve a sufficiently retributive and deterrent sentence.[note: 105]

Defence’s arguments on sentence

141    While agreeing that the victim was vulnerable given her young age, the Defence argued that there was no abuse of trust or premeditation in the present case.

142    Although the Accused was the victim’s stepfather, this was a merely legal relationship and in fact, the victim did not rely on the Accused, was not dependent on him and did not trust him. Therefore, there was no abuse of trust.

143    There was no evidence that there was any significant planning or orchestration from the Accused in the course of committing the offences, and as such it could not be said that the offences were premeditated.

144    The Defence also referred to the following sentencing precedents by way of comparative analysis:

Offences under s 354 of the 1985 PC and s 354(1) of the 2008 PC

(a)      BZT: The offender was convicted after trial on eight charges of committing sexual offences against two young victims (between seven to 11 years old), who were the children of his girlfriend. In particular, for a charge of rubbing his penis against the victim’s buttocks over her clothes, using his hand to rub the victim’s vagina skin-to-skin, and rubbing his penis against the victim’s vagina area skin-to-skin, a sentence of one and a half years’ imprisonment and six strokes of the cane was imposed. The High Court agreed that this set of facts fell within the high end of Band 3 of the Kunasekaran framework. The offender was convicted on a total of eight charges, with four charges taken into consideration, and was sentenced to a global term of 18 years’ imprisonment and 24 strokes of the cane.

(b)      PP v Cheng Kim Han Stanley [2019] SGMC 66: The offender was convicted after trial on two charges under s 354(1) of the 2008 PC committed against his domestic worker. For a charge of hugging the victim from behind and using his hand to press her right breast, the offender was sentenced to a term of 10 months’ imprisonment.

(c)      PP v GFV [2023] SGDC 147: The offender was convicted after trial on five charges under s 354(1) and s 354(2) of the 2008 PC, committed against his daughter between the ages of 10 to 17 years old. One of the charges under s 354(1) of the 2008 PC involved the offender squeezing the victim’s breast over her clothes when she was 13 years old, and another involved the offender rubbing the victim’s vagina over her shorts with his fingers when she was 16 years old. For each of these charges, the offender was sentenced to eight months’ imprisonment. His global sentence was a term of 58 months’ and four weeks’ imprisonment.

(d)      PP v Ong Jun Yong [2024] SGMC 6: The offender was convicted after trial on one charge under s 354(1) of the 2008 PC, for having slipped his hand into the victim’s dress and touching her left breast over her bra. The offence took place at a nightclub, and the offender was sentenced to a term of six months’ imprisonment.

Offences under s 354(2) of the 2008 PC

(a)      PP v GEE [2022] SGDC 14: The offender was convicted after trial on three charges under s 354(2) of the 2008 PC, one of which was an attempt. The offender was the form teacher of the 12 year old male victim. For a charge involving the offender using his hand to tap the victim’s penis over his shorts, a sentence of 12 months’ imprisonment was imposed. For a charge involving the offender inserting his hand into the victim’s shorts and underwear and touching the victim’s penis skin-to-skin, a sentence of 24 months’ imprisonment and three strokes of the cane was imposed.

(b)      PP v GHI [2023] SGDC 295: The offender was convicted after trial on one charge under s 354(2) of the 2008 PC for touching the 10 year old victim’s right breast over clothes, placing his hand on her thigh, touching her crotch area over clothes, and kissing the back of her neck. The offender was the victim’s tutor, and was sentenced to a term of 14 months’ imprisonment. As the offender was of the age where he could not be caned, an additional two months’ imprisonment in lieu of caning was imposed.

(c)      PP v GDX [2021] SGDC 142: The offender was convicted after trial on two charges under s 354(1) and one charge under s 354(2) of the 2008 PC. For the charge under s 354(2), the offender had touched the victim’s left breast over her clothes. The victim was the offender’s stepdaughter and between 11 to 12 years old at the time of this offence. He was sentenced to a term of 14 months’ imprisonment[note: 106] for the charge under s 354(2), with a global sentence of 32 months’ imprisonment. As the offender was of the age where he could not be caned, an additional 18 weeks’ imprisonment in lieu of caning was imposed.

145    The Defence pointed out that claiming trial was not an aggravating factor, and that there were no charges to be taken into consideration when sentencing. It was also submitted that no imprisonment in lieu of caning ought to be imposed, relying on the dicta in Amin bin Abdullah v PP [2017] 5 SLR 904 at [53]. There were no substantial aggravating factors in the present case which would warrant a departure from the starting point that the sentence should not be enhanced in lieu of caning by default.

Court’s decision on sentence

146    These sexual offences were committed by the Accused over the course of a decade against his own stepdaughter, who was only between nine and 10 years old when he started. There could be no real doubt that the dominant sentencing principles were those of deterrence and retribution. See Public Prosecutor v NF [2006] 4 SLR(R) 849 at [49].

147    The relevant sentencing frameworks are set out in Kunasekaran and GBR. See [135] and [136] above. In order to determine which sentencing band the present case fell within and the appropriate starting points, I considered the offence specific factors which applied.

Abuse of trust

148    I unequivocally rejected the submission by the Defence that there was no abuse of trust because there was in fact no real relationship of trust between the Accused and the victim, and the Accused did not take care of her. The Accused was the victim’s stepfather, and in that capacity he lived in the same residence as her and had access to her without question or suspicion. As her stepfather, he was in a position of authority to her, and was supposed to protect and care for her. Instead of doing so, he abused this position by molesting her on multiple occasions. As pointed out by the Prosecution, most of the offences also took place in the sanctity of her own home. In these circumstances, there was clearly an egregious abuse of trust which I took into consideration in sentencing.

Vulnerability of the victim

149    The offences were committed against the victim when she was very young. In particular, she was only between nine to 10 years old when the offences at the Bury Road address were committed, and between 12 to 13 years old when the offence at 43 Jalan Loyang Besar was committed. Based on her age alone, she was clearly a vulnerable victim. The offences were also committed in her home, and sometimes when she was sleeping at night.[note: 107]

Harm caused

150    Based on the victim impact statement, I accepted that significant emotional and psychological harm had been caused to the victim, and that she still suffered from the effects of the offences up to now. Indeed, this was not surprising given the duration of the offending, the fact that it all started when she was still so young, and by a man who was supposed to be her stepfather.

No significant premeditation

151    For completeness, I should state that I did not agree with the Prosecution that there was significant premeditation in the present case. Just because the Accused had managed to commit the offences over the course of 10 years without being discovered did not lead to the necessary inference that the offences had been meticulously planned. There was no such evidence, and I therefore declined to consider this as a relevant offence-specific factor.

Mitigating factors

152    I accepted that the Accused should not be penalised for claiming trial, but this was not a mitigating factor, and I could find nothing of mitigatory value in the present case. It could not be said that the Accused was remorseful, and indeed he did not profess as such, even in his mitigation. Given that the Accused had committed multiple offences, the first of which was committed sometime in 2005 or 2006, I did not treat him as a first offender.

The appropriate starting points

153    With regard to the 1st charge, the Accused had touched the victim’s chest over her clothes. The degree of sexual exploitation was not particularly high, although I would disagree with the characterisation by the Defence that there was no intrusion into the victim’s private parts as her breasts had still not developed. The victim already knew at that time that her chest was a private area she was not supposed to show other people, and the intrusion she felt would therefore be no less than if she already had fully developed breasts. In addition, there were at least three offence-specific factors triggered – the victim’s age and vulnerability, the abuse of trust, and the significant harm caused to the victim. In particular, I noted that the offence had been committed against her in the sanctity of her own bedroom and when she was sleeping. In the circumstances, I took the view that this fell somewhere between the middle to high end of Band 2 in the Kunasekaran framework, and a starting point of 12 months’ imprisonment was appropriate.

154    With regard to the 2nd charge, the Accused had touched the victim’s vagina with his finger and made contact between his penis and her vagina, skin-to-skin. The degree of sexual exploitation was very high, and the same three offence-specific factors as in the 1st charge applied. In the circumstances, I took the view that this clearly fell within the high end of Band 3 of the Kunasekaran framework, and taking guidance from the precedent in BZT which involved a similar charge, a starting point of 18 months’ imprisonment was appropriate.

155    With regard to the 3rd charge, the Accused touched the victim on her bare thigh, and her breast over her clothes. The degree of sexual exploitation was not particularly egregious but it did involve an intrusion into the victim’s private parts and had also occurred when the victim was sleeping. As the charge was under s 354(2) of the 2008 PC, I was mindful not to take the victim’s age into account as an additional offence-specific factor. Nevertheless, the factors of abuse of trust and harm caused to the victim were still present, and in my view, the case fell within the lower end of Band 2 in the GBR framework. A starting point of 16 months’ imprisonment was appropriate.

156    With regard to the 4th charge, the Accused had touched the victim on her thigh and her breasts. The degree of sexual exploitation was similar to the 1st and 3rd charges, with the key difference being the victim’s age. She would have been about 19 years old at the time of this offence. I therefore took the view that the case fell within Band 2 of the Kunasekaran framework, and slightly lower than for the 1st charge. A starting point of 10 months’ imprisonment would be appropriate.

157    I found no significant mitigating factors in the present case, and no significant aggravating factors other than those identified above as relevant offence specific factors. There was therefore no reason to adjust the starting points.

Imprisonment in lieu of caning

158    Given the relationship between the Accused and the victim and the resulting abuse of trust, the vulnerability of the victim as well as the harm caused to her, caning ought to have been imposed for the charges. However, the Accused was more than 50 years old at the time of sentencing and could no longer be punished with caning. Under s 325(5) of the CPC, no imprisonment in lieu of caning could be ordered for the first three charges as they involved offences committed before 2 January 2011. The only charge for which imprisonment in lieu could be ordered was the 4th charge.

159    There was of course no mandatory requirement or even a default position to impose imprisonment in lieu of caning.[note: 108] However, this might be appropriate where there were substantial aggravating factors warranting a sufficiently deterrent and retributive sentence.[note: 109] I was satisfied that this was true for the present case. The victim was the Accused’s stepdaughter and the offence had been committed in the domestic context and within her own home. By the time the offence in the 4th charge occurred, the victim had already suffered a history of sexual abuse spanning a decade, starting from when she was barely 10 years old. In my view, these circumstances placed her in a particularly vulnerable class of victims warranting a sufficiently deterrent and retributive sentence to properly reflect the disapprobation the courts take to such offences.

160    Bearing the above in mind, I took the view that a term of six weeks’ imprisonment in lieu of three strokes of the cane was appropriate for the 4th charge.

Global sentence

161    Under s 307(1) of the CPC, two of the sentences had to be ordered to run consecutively, and I agreed with the submission by both parties that the sentences for the 2nd and 3rd charges should run consecutively.

162    These charges involved distinct offences and did not run afoul of the one-transaction rule. I was also satisfied that the resulting global term of 34 months’ imprisonment (and six weeks in lieu of caning) was in line with the totality principle and an adequate and necessary reflection of the Accused’s culpability in the present case.

Conclusion (sentence)

163    The sentences imposed on the Accused were therefore as follows:

Charge

Sentence imposed

1st charge DAC 916738-2022

12 months’ imprisonment

2nd charge DAC 916739-2022

18 months’ imprisonment

3rd charge DAC 916740-2022

16 months’ imprisonment

4th charge DAC 916741-2022

10 months’ imprisonment + six weeks’ imprisonment in lieu of three strokes of the cane.

Global sentence

34 months’ imprisonment + six weeks’ imprisonment in lieu of caning



[note: 1]Admitted and marked SOAF.

[note: 2]Admitted and marked P1.

[note: 3]The victim’s school record from the Ministry of Education was admitted and marked P2.

[note: 4]The floorplan of the Bury Road address was admitted and marked P3.

[note: 5]Photographs of the carpark at 43 Jalan Loyang Besar, which layout had not changed since the material time they were staying there, were admitted and marked P4-1 to P4-14.

[note: 6]The vehicle ownership record for the Honda Odyssey was admitted and marked P5.

[note: 7]The rental records for the Aljunied unit during the period of 16 August 2010 to 30 November 2016 was admitted and marked P6.

[note: 8]See P1.

[note: 9]See Notes of Evidence (“NE”), 3 Nov 2023, 6/20-23.

[note: 10]See NE, 3 Nov 2023, 11/21 – 12/6.

[note: 11]See NE, 3 Nov 2023, 12/6-25; 16/28-30.

[note: 12]See NE, 3 Nov 2023, 15/1-12.

[note: 13]See NE, 3 Nov 2023, 16/21.

[note: 14]See NE, 3 Nov 2023, 21/23.

[note: 15]See NE, 3 Nov 2023, 17/12-26.

[note: 16]See NE, 3 Nov 2023, 19/19 – 20/7.

[note: 17]See NE, 3 Nov 2023, 22/9 – 23/4.

[note: 18]See NE, 3 Nov 2023, 25/1 – 26/4.

[note: 19]See NE, 3 Nov 2023, 28/2-20.

[note: 20]See NE, 3 Nov 2023, 31/20 – 32/6.

[note: 21]See NE, 3 Nov 2023, 34/7-14.

[note: 22]See NE, 3 Nov 2023, 32/26 – 33/12.

[note: 23]See NE, 3 Nov 2023, 34/22 – 35/7.

[note: 24]See NE, 3 Nov 2023, 38/1-6.

[note: 25]See NE, 3 Nov 2023, 45/5-11.

[note: 26]See NE, 3 Nov 2023, 48/28 – 49/10.

[note: 27]See NE, 3 Nov 2023, 45/26.

[note: 28]See NE, 9 Nov 2023, 43/11.

[note: 29]See Notes of Evidence (“NE”), 2 Nov 2023, 20/6-19.

[note: 30]See NE, 2 Nov 2023, 23/22-32.

[note: 31]See NE, 2 Nov 2023, 37/7-28.

[note: 32]See NE, 8 Nov 2023, 9/1 – 23.

[note: 33]See NE, 8 Nov 2023, 9/23-28.

[note: 34]The handwritten note was admitted and marked P7.

[note: 35]See NE, 8 Nov 2023, 13/11-12.

[note: 36]See NE, 8 Nov 2023, 15/5-8.

[note: 37]See NE, 8 Nov 2023, 16/14-17.

[note: 38]See NE, 8 Nov 2023, 18/13-22.

[note: 39]See NE, 8 Nov 2023, 16/28-30.

[note: 40]See NE, 8 Nov 2023, 23/26 – 24/9.

[note: 41]See NE, 8 Nov 2023, 28/10-25.

[note: 42]See NE, 8 Nov 2023, 5/31 – 6/1; 8/20-22.

[note: 43]See NE, 10 Nov 2023, 44/1-7; 52/30-31.

[note: 44]See NE, 10 Nov 2023, 44/18 – 46/5; 56/16-18; 58/28-29.

[note: 45]See NE, 10 Nov 2023, 46/16 – 47/32.

[note: 46]See NE, 10 Nov 2023, 45/27 – 46/2.

[note: 47]See NE, 10 Nov 2023, 50/27 – 51/9.

[note: 48]See NE, 10 Nov 2023, 68/8-10; 69/1-32.

[note: 49]See NE, 21 Nov 2023, 4/29-31.

[note: 50]See NE, 21 Nov 2023, 5/9-12.

[note: 51]See NE, 21 Nov 2023, 7/20-32.

[note: 52]PW6 Kenston’s NS leave records for 2015 were admitted and marked P8, indicating two dates when he was on afternoon leave – 14 September 2015 and 2 October 2015.

[note: 53]See NE, 21 Nov 2023, 5/21 – 7/13.

[note: 54]See NE, 21 Nov 2023, 8/11-25.

[note: 55]See NE, 21 Nov 2023, 13/30 – 14/14.

[note: 56]See NE, 21 Nov 2023, 19/17-21.

[note: 57]Admitted and marked D2.

[note: 58]Admitted and marked D3.

[note: 59]Admitted and marked D4.

[note: 60]See NE, 4 Mar 2024, 9/16-17.

[note: 61]See NE, 4 Mar 2024, 16/11-12.

[note: 62]See NE, 4 Mar 2024, 46/28-31.

[note: 63]See NE, 4 Mar 2024, 11/22-32.

[note: 64]See NE, 4 Mar 2024, 14/10-11.

[note: 65]See NE, 4 Mar 2024, 15/17-21; 16/28-31.

[note: 66]See NE, 4 Mar 2024, 17/7-12.

[note: 67]See NE, 4 Mar 2024, 15/24 – 16/3.

[note: 68]See NE, 4 Mar 2024, 24/18-29.

[note: 69]See NE, 4 Mar 2024, 27/8-31.

[note: 70]See NE, 4 Mar 2024, 29/26 – 31/8.

[note: 71]See NE, 4 Mar 2024, 33/31 – 34/23.

[note: 72]See NE, 4 Mar 2024, 35/8.

[note: 73]See NE, 4 Mar 2024, 38/13 – 39/9.

[note: 74]See NE, 4 Mar 2024, 44/9-23.

[note: 75]See NE, 4 Mar 2024, 39/25 – 40/8.

[note: 76]See NE, 5 Mar 2024, 14/21 – 17/3.

[note: 77]See PP v Mohd Taufik bin Abu Bakar and Anor [2019] SGHC 90 at [33].

[note: 78]See PP v GCK and Anor [2020] 1 SLR 486 (“GCK”) at [87-88], citing PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 (“Liton”) at [38].

[note: 79]See GCK at [88].

[note: 80]See NE, 9 Nov 2023, 30/16-32.

[note: 81]Admitted and marked D1.

[note: 82]See NE, 10 Nov 2023, 4/10-31; 30/6-10.

[note: 83]Admitted and marked D3.

[note: 84]See NE, 10 Nov 2023, 16/10-19.

[note: 85]See NE, 9 Nov 2023, 51/17-21.

[note: 86]See NE, 10 Nov 2023, 13/3-5.

[note: 87]See NE, 10 Nov 2023, 19/28.

[note: 88]See NE, 10 Nov 2023, 35/17 – 37/8.

[note: 89]See NE, 10 Nov 2023, 10/29 – 11/5.

[note: 90]See NE, 10 Nov 2023, 20/23-30.

[note: 91]See Liton at [39].

[note: 92]See VRI statement admitted and marked as exhibit P10, at pages 8, 11, 12, 24 and 41.

[note: 93]See P10 at page 15.

[note: 94]See NE, 5 Mar 2024, 50/5-17.

[note: 95]See NE, 5 Mar 2024, 20/21.

[note: 96]See NE, 5 Mar 2024, 18-25.

[note: 97]See P10 at page 46.

[note: 98]See NE, 5 Mar 2024, 62/12-13.

[note: 99]See NE, 4 Mar 2024, 73/5-14;

[note: 100]See exhibit P10 at pages 26 – 27.

[note: 101]See NE, 21 Nov 2023, 43/7-12.

[note: 102]See Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2019] SGCA 47 at [67], citing DT v Public Prosecutor [2001] 2 SLR(R) 683 at [62].

[note: 103]Relying on the dicta in Public Prosecutor v BZT [2022] SGHC 148 (“BZT”) at [5].

[note: 104]See GBR at [27] – [30].

[note: 105]As the other charges involved offences committed before 2 January 2011, no imprisonment in lieu could be imposed. See s 325(5) of the Criminal Procedure Code 2010 (“CPC”).

[note: 106]The court was of the view that a term of 16 months’ imprisonment would be appropriate, but calibrated the eventual sentence downwards in view of the totality principle. See [241] of the judgment.

[note: 107]See BZT at [47].

[note: 108]See Amin bin Abdullah v Public Prosecutor [2017] 5 SLR 904 at [53] and [54].

[note: 109]See GBR at [40].

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Public Prosecutor v Teo Linfeng (Zhang Linfeng), Melvin
[2024] SGDC 234

Case Number:District Arrest Case Nos. 913832-5 of 2024, Magistrate's Appeal No. 9172-2024-01
Decision Date:13 September 2024
Tribunal/Court:District Court
Coram: John Ng
Counsel Name(s): ASP Jimmy Yap (Singapore Police Force) for the Public Prosecutor; The Accused was unrepresented.
Parties: Public Prosecutor — Teo Linfeng (Zhang Linfeng), Melvin

CRIMINAL PROCEDURE AND SENTENCING – Sentencing – Road Traffic Act – Drink-driving Offences – Repeat Offender

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9172/2024/01.]

13 September 2024

District Judge John Ng:

Introduction

1       In the year 2009, on the 8th of January, the Accused – Teo Linfeng (Zhang Linfeng), Melvin – pleaded guilty and was convicted of a charge of driving a vehicle when the proportion of alcohol in his body had exceeded the prescribed limit. He was sentenced to a fine of $3,000 and disqualified from driving for two years. Prior to that, on 23 April 2008, the Accused had pleaded guilty to and was convicted of Inconsiderate Driving (resulting in an accident) and he was sentenced to a fine of $700 with 9 demerit points (see Conviction History tendered by the Prosecution, printed and dated 24 June 2023).

2       On 26 August 2024, before me in the Traffic Court, the Accused pleaded guilty to two charges of drink-driving under the Road Traffic Act 1961 (“RTA”) which offences were committed on two different occasions in 2023. The first occasion was on 24 June 2023 and the second occasion was on 6 August 2023. These two offences were committed less than two months apart. He also admitted to the commission of two other offences under Section 122 RTA for causing obstruction to other road users on those two occasions and consented for these two charges to be taken into consideration for sentencing.

3       The Accused admitted to the Statement of Facts presented by the Prosecution detailing the circumstances of the commission of the two offences and he was convicted of the two drink-driving charges accordingly. The Accused was a repeat offender and therefore punishable under Section 67(1) RTA with a fine of not less than $5,000 and not more than $20,000 and to imprisonment for a term not exceeding 2 years on each of the two charges. That is to say, there was a mandatory minimum fine to be imposed of $5,000 and mandatory imprisonment of up to 2 years for each offence.

4       The Accused was sentenced on 26 August 2024 to a total fine of $19,000 ($7,000 fine for DAC 913832/2024 [the June 2023 offence] and $12,000 for DAC 913834/2024 [the subsequent August 2023 offence]) and nine months of imprisonment in total for the two offences of drink-driving (two months for the June 2023 offence and seven months for the later August 2023 offence, running consecutively). The Accused had indicated that he wanted to begin his sentence on that day and started serving his sentence on the same day that his guilty pleas were taken. Eight days into serving his sentence, the Accused filed this appeal against sentence (but not against the disqualification orders) from prison. The Accused has not applied for bail pending appeal and is currently serving his sentence of imprisonment.

Summary of Facts

5       Based on the Statement of Facts, the salient aspects of this case can be summarized as follows:

(a)     For the first drink-driving incident on 24 June 2023, the Accused was spotted sleeping inside a stationary motorcar at about 3.57 a.m. The car was stationary in the middle of the road – on Lane 2 of the three-lane Killiney Road towards the direction of River Valley Road. The police response officer at scene saw the Accused in the driver’s seat. The Accused was slumped forward and sleeping whilst the engine of the car was still running. The Accused did not have his seatbelt strapped on and the headlights of the car were switched on.

(b)     The police officer managed to wake the Accused up by knocking on the side window of the driver’s seat. The Accused reeked of alcohol and a breathalyser test was conducted and the result showed “Fail”. The Accused was placed under arrest for driving under the influence of alcohol and escorted to the Police Cantonment Complex. At the complex, the Accused was not able to provide his breath and consented to provide his blood sample for a blood test. The blood test revealed that the proportion of alcohol in the blood was 115 milligrams of alcohol in 100 millilitres of blood (the equivalent value for breath after conversion is 50.31 micrograms of alcohol per 100 ml of breath).

(c)     For the subsequent drink-driving incident on 6 August 2023, the Accused had consumed alcohol at a discotheque located at Orchard Road with a friend. After his last drink, the Accused drove his friend home in Eunos before he proceeded to head to his home in Yishun via the Pan Island Expressway (“PIE”).

(d)     At the PIE, a motorcycle collided onto the rear of the car of the Accused when it was stationary on Lane 3 of three lanes. The Accused had fallen asleep at the wheel and he was woken up by the police officers who had responded to a report of the road traffic accident and who had attended at the scene of the accident.

(e)     The Accused only realized that there was an accident involving his car and a motorcycle, after he had alighted from the driver’s seat subsequent to being woken up by one of the police officers. Upon interviewing the Accused, the police officer noticed that the Accused reeked of alcohol. An instant breathalyser test was carried out and the result showed “Fail”. The Accused was placed under arrest for driving under the influence of alcohol and escorted to Traffic Police Headquarters (“TPHQ”). The rider of the motorcycle and a female pillion were conveyed to Tan Tock Seng Hospital.

(f)     At the TPHQ, the breath test on the Accused revealed that the proportion of alcohol in his breath was 62 mcg of alcohol in 100 ml of breath. The prescribed legal limit is 35 mcg of alcohol in 100 ml of breath.

Conviction History

6       The Accused has a long string of antecedents for various offences connected to the driving of a vehicle, as reflected in the table below:

Date of Offence

Nature of Offence

Outcome

27 March 2002

Failure to display sign during probation period

Paid composition fine of $120

14 July 2002

Protective helmet not worn securely

Paid composition fine of $120 (3 demerit points)

12 September 2002

Wearing helmet fitted with unapproved visor

Paid composition fine of $50

5 October 2002

Parking on footway

Paid composition fine of $70

19 February 2003

Parking on footway

Paid composition fine of $70

4 March 2003

Riding without headlamp light

Paid composition fine of $30

2 April 2003

Going against the flow of traffic

Paid composition fine of $150 (6 demerit points)

17 November 2004

Speeding

Paid composition fine of $170 (8 demerit points)

2 June 2007

Speeding

Paid composition fine of $130 (4 demerit points)

18 January 2008

Inconsiderate driving causing accident

Convicted on 23/4/2008 and sentenced to fine of $700 (9 demerit points)

12 December 2008

Drink-driving

Convicted on 8/1/2009 and sentenced to fine of $3,000, two years of DQ

30 November 2017

Speeding

Paid composition fine of $150 (6 demerit points)

28 September 2018

Speeding

Paid composition fine of $150 (6 demerit points)

15 December 2019

Failing to conform to red light signal

Paid composition fine of $400 (12 demerit points)

29 March 2021

Speeding

Paid composition fine of $200 (6 demerit points)

DQ refers to the period of Disqualification from Driving



Prosecution’s Submissions on Sentence

7       The Prosecution’s submissions on sentence were as follows:

(a)     The alcohol level of the Accused for the June 2023 offence fell within Band 1 of the Rafael Voltaire Alzate v PP [2022] 3 SLR 993 (“Rafael Voltaire”) Framework. Based on the guidelines laid down by the Chief Justice Sundaresh Menon for repeat drink-driving offenders in the case of Lee Shin Nan v PP [2023] SGHC 354 (“Lee Shin Nan”), the indicative fine would be between $5,000 to $8,000 and a disqualification period of 60 to 66 months. The Prosecution proposed that the punishment for the offence on this occasion ought to be a fine between $7,000 and $8,000, a disqualification period of 5 years and an imprisonment term of two months.

(b)     The alcohol level of the Accused for the August 2023 offence of 62 mcg of alcohol per 100 ml of breath, fell within Band 2 of the Rafael Voltaire framework. The indicative fine under the Lee Shin Nan guidelines would be a fine from $8,000 to $11,000, with a disqualification period of 66 to 78 months. The Prosecutor sought for a sentence of $12,000 fine, 8 years of disqualification from driving and an imprisonment term of nine months.

(c)     The Prosecution highlighted that the principle of escalation should apply in view of the repeat offending by the Accused for the offences. The Accused committed the subsequent drink-driving offence in August 2023 despite knowing that he would be facing police action for a similar offence of drink-driving committed in June 2023. Furthermore, the subsequent offence resulted in an accident on the expressway involving a motorcycle with a rider and a pillion.

(d)     The Prosecution submitted that the custodial sentences for the two offences ought to run consecutively as these were two separate incidents. There were also the further two charges for causing obstruction to be taken into consideration for the purpose of sentencing.

Mitigation

8       The Accused had nothing to say.

Sentence

9       The applicable punishment provision for a repeat drink-driving offender is Section 67(1) RTA which mandates the imposition of a fine of a minimum of $5,000 and a maximum of $20,000 and an imprisonment term not exceeding two years. It is further provided in Section 67(2)(b) RTA for a repeat offender that a disqualification specified period of not less than 5 years starting from the date of release from prison must be ordered, unless there are special reasons not to do so. Based on the circumstances of the case, the relevant sentencing factors, the nature of the offences, the type of offender and the absence of special reasons, the sentences of imprisonment, fines and disqualification from driving imposed for the individual offences were:

CHARGE NO.

IMPRISONMENT

FINE

DISQUALIFICATION

DAC 913832 of 2024

Two Months (consecutive)

$7,000

Five Years

DAC 913834 of 2024

Seven Months (consecutive)

$12,000

Eight Years

Total Sentence:

Nine (9) months of imprisonment, $19,000 fine and eight (8) years of disqualification from date of release from prison.

Two Charges Taken Into Consideration For The Purpose Of Sentencing.



10     The calibration on the specific type of sentence and the reasons for the individual punishment of the offences are elaborated below.

The Guidance of The High Court

11     The first port of call in sentencing repeat drink-driving offenders is the High Court case of Lee Shin Nan. At [57] of Lee Shin Nan, the following approach was provided for guidance by CJ Menon on 18 December 2023:

“57    In my judgment, in the light of the foregoing considerations, the sentencing framework for repeat drink driving offences should comprise a four-stage process (the “Repeat Offences Framework”), as follows:

(a)     Stage 1 – Starting sentence range: The court should first determine the sentence range for the offence based on the offender’s Alcohol Level Band as if the offender were a first-time offender, using the sentencing ranges set out in the Rafael Voltaire Framework, and then apply an uplift to the range of the fine and the disqualification period taking into account only the level of alcohol for the present conviction.

(b)     Stage 2 – Adjustment on account of the repeated offending behaviour: The court should pay particular attention to the consideration of those factors that pertain to the repetition of the offending behaviour. This will bear on the calibration of the fine and disqualification period and the court should arrive at a provisional assessment of these punishments within the applicable range.

(c)     Stage 3 – Adjustment to account for aggravating and mitigating circumstances: The court should next consider the aggravating and mitigating circumstances of the offence and the offender and make any further adjustments to the provisional assessment of the fine and disqualification period.

(d)     Stage 4 – Final Adjustment: The court will finally calibrate the appropriate term of imprisonment having regard in particular to the need for deterrence and then finally review the sentence as a whole.”

The Quantum of Fines

12     The Accused was previously fined $3,000 in 2009. A significant escalation of the fines to be imposed for the repeat offending is already built into the punishment provision for repeat offenders. The mandatory minimum fine is $5,000 and the maximum is set at $20,000.

13     The Chief Justice provided a tabular summary of the starting ranges for repeat offenders at [63] of his judgment. The relevant extract touching on Fines for the present purposes is as follows:

Level of alcohol

(mcg per 100ml of breath)

Indicative band for repeat offenders

36-54

Fine: $5,000-$8,000

55-69

Fine: $8,000-$11,000

70-89

Fine: $11,000-$14,000

90 and above

Fine: $14,000-$17,500



14     Applying the Repeat Offences Framework of Lee Shin Nan first to the fines imposed, for the offence committed on 24 June 2023, the alcohol level of 50.31 mcg per 100 ml of breath is at the first of the Alcohol Level Band. The applicable sentence range is $5,000-$8,000. On account of 50.31 mcg alcohol being in the upper middle of that range, together with the causing of obstruction to other road users in the repeated offending behaviour (i.e. the TIC charge), the sentence of the fine is calibrated at $7,000 for the offence of 24 June 2023. The fact that there was no injury or property damage and the show of remorse in pleading guilty have been taken into account in imposing a sentence at the lower end of $7,000 instead of $8,000 in the range submitted by the Prosecution.

15     For the subsequent offence committed on 6 August 2023, the occurrence of the accident, involving the motorcycle with the rider and pillion, was a highly aggravating factor. This was a case where the drink-driving offence had caused harm but the offender was only charged with the offence under Section 67(1) RTA. No other charges in relation to the harm caused had been preferred against the Accused in this case. The damage to the motorcycle is not known and the injury caused to the rider and his pillion in the present case is also unknown as there were no Medical Reports tendered. Nevertheless, the fact of harm caused could not be ignored and in fact ought to be considered an aggravating factor justifying a significant uplift.

16     Applying the Repeat Offences Framework of Lee Shin Nan, for the offence committed on 6 August 2023, the alcohol level of 62 mcg of alcohol per 100 ml of breath is at the second of the Alcohol Level Band. The applicable sentence range is $8,000-$11,000. On account of 62 mcg alcohol being right in the middle of that range, the starting point would be a fine of $9,500. A further uplift of $2,500 was warranted in view of the fact that this 6 August 2023 offence was the 3rd time of drink-driving committed by the Accused, occurring six weeks after committing his 2nd drink-driving offence on 24 June 2023 to arrive at the calibration of the fine to be imposed at $12,000 for the August 2023 offence. The TIC charge of causing obstruction to other road users and the plea of guilty were also factored into the calibration.

Disqualification Orders

17     Turning now to the Disqualification Orders, the Accused was previously disqualified from driving for two years in 2009. A significant escalation of the Disqualification Orders had to be imposed for the repeated offending in order to give effect to the sentencing principle of prevention and enhancing protection for the community.

18     The current two drink-driving offences attracted the specified minimum disqualification period of five years per charge from the date of release from prison under Section 67(2)(b) RTA. There were no special reasons provided by the Accused to obviate the application of the specified minimum period of disqualification.

19     The relevant extract touching on the starting ranges of Disqualification for repeat offenders (from the tabular summary provided by the Chief Justice at [63] of his judgment) is as follows:

Level of alcohol

(mcg per 100ml of breath)

Indicative band for repeat offenders

36-54

Disqualification: 60-66 months

55-69

Disqualification: 66-78 months

70-89

Disqualification: 78-96 months

90 and above

Disqualification: above 96 months



20     Applying the Repeat Offences Framework of Lee Shin Nan to the Disqualification to be imposed for the offence committed on 24 June 2023, the alcohol level is at the lowest band which attracts a range of 60-66 months i.e. five to five and a half years of disqualification. The imposition of a disqualification from driving for five years for the drink-driving offence was the specified minimum period under the RTA.

21     The offence on 6 August 2023 was the Accused’s 3rd drink-driving offence and therefore there has to be an uplift from the specified minimum period of disqualification of five years to reinforce the deterrent effect and increase the protection of other public road-users. A calibration of a disqualification period of eight years from the date of release from prison was required to reflect the severity of what was effectively the Accused’s third commission of the same RTA offence. If anything, eight years could be seen as being on the lenient side, bearing in mind that a third conviction for the offence of drink-driving would have attracted a mandatory lifetime ban in the absence of any special reasons.

22     In any event, the Accused had indicated in the Notice of Appeal that he was not appealing against the orders of disqualification.

The Length of Total Imprisonment

23     Turning finally to the sentence of imprisonment imposed. A sentence of two months (for the June 2023 offence) and seven months (for the August 2023 offence) of imprisonment to run consecutively are amply justified.

24     At [70] of Lee Shin Nan, the CJ observed that:

“A term of imprisonment is mandatory for repeat offenders and arises from the parliamentary intent to deter recalcitrant drink driving and to prevent accidents, injury and death that can needlessly arise from drink driving. As such, its length will be determined primarily by the need for deterrence (both general and specific) and the need to punish especially culpable behaviour (see Singapore Parliamentary Debates, Official Report (28 March 1990) vol 55 at cols 960–961, 964–965 and 974 (Prof S. Jayakumar (Minister for Home Affairs), Dr Arthur Beng Kian Lam, Mr Chng Hee Kok); Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423 at [14]).”

25     The CJ added:

“when assessing the term of imprisonment. Such factors include: (a) the manner and circumstances of driving and road conditions; (b) the nature and number of relevant antecedents; (c) the recency of antecedents; and (d) the actual and potential danger posed to others. These appear to be the key factors that are relevant to deterrence (both general and specific) and to why imprisonment was made mandatory for this class of offenders.”

26     At [71] of Lee Shin Nan, the Chief Justice provided three broad classes with their corresponding indicative sentencing bands of imprisonment terms for repeat offenders under Section 67(1) RTA. These are:

(a)     serious: 1-6 months’ imprisonment;

(b)     more serious: 6-12 months’ imprisonment; and

(c)     most serious: 12-24 months’ imprisonment.

27     The offences in the present case are repeated offences committed by the Accused and the dominant sentencing principle is that of Specific Deterrence. The Accused had shown a blatant disregard for the law and the commission of these two offences revealed an intransigent behaviour that must be met with escalating lengths of incarceration, both to punish the Accused and to protect the members of the road-using public.

28     For the June 2023 offence, it fell within the first sentencing band of “serious” category with the starting range of 1-6 months’ imprisonment as it has zero to two identified key factors present and operating at a relatively low level. The manner and circumstances of driving here is one of falling asleep while waiting for the lights to change at a traffic junction and causing obstruction to other road users. The vehicle remained stationary in the middle of the 3-lane road, thereby posing potential danger to other road users (of which the August 2023 offence provided a clear instance of how that potential danger was real in that an accident occurred when another vehicle crashed into his stationary car when he fell asleep while driving on the expressway). Within the range of one to six months of imprisonment, the offence committed was assessed at the lower end of two months of imprisonment based on the aforesaid manner of driving and circumstances. This June 2023 offence was committed more than 10 years after his previous conviction of drink-driving in January 2009, there is no need for a sentence higher than two months for this offence.

29     On the other hand, for the August 2023 offence, it fell within the “more serious” category with the starting range of 6-12 months’ imprisonment. This offence had two key aggravating factors. The first is that there was an accident and actual (rather than potential) harm was caused to property and persons. The second aggravating factor at a pronounced level was the fact that this August 2023 offence was committed so soon after the June 2023 offence. Therefore, the sentence to be imposed was assessed at the higher end of the range, nearer to the 12-month mark. After granting the discount for the guilty plea, a sentence of 7 months of imprisonment was passed.

30     Moving on, it is obvious that offences which were committed on separate occasions should have their terms of imprisonment run consecutively. The first offence was committed end June and the second offence occurred in early August of 2023. These two repeat offences of drink-driving occurred within a short span of time and a sufficiently punitive length of incarceration was warranted to reflect their severity. Specific Deterrence looms large as a sentencing principle in this case. The use of the full spectrum of the range of punishment also featured in this case.

Conclusion

31     The present case involved the commission of a second and a third drink-driving offence after the first conviction in 2009 but not resulting in a third conviction. This is because the third offence was committed before the Accused was charged or prosecuted for the second offence due to the fact that the third offence was committed shortly after the arrest of the Accused for the commission of the second offence.

32     The sentence meted out in this case seeks to fulfil the several social objectives of punishment for the Accused, protection of other road users and deterrence – both general and specific. Even though the first conviction of drink-driving occurred 14 years ago, the commission of the two latest back-to-back repeat offending brings to the fore the need to ensure the current overall sentence is effective to curb the irresponsible behaviour of the Accused. It seemed that the Accused had very little regard for the safe use of our roads and did not and had not learnt his lesson from his first drink-driving conviction in 2009. Despite being caught for repeating the offence in late June 2023, he went on to commit another drink-driving offence less than two months later in early August 2023, in almost similar fashion.

"},{"tags":["Criminal Law – Offences – Property – Criminal trespass","Criminal Law – Offences – Sexual offences – Voyeurism","Criminal Procedure and Sentencing – Sentencing – Persistent offenders"],"date":"2024-09-12","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 903952 of 2004 and 1 Other","title":"Public Prosecutor v Ong Wei Le","citation":"[2024] SGMC 37","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32134-SSP.xml","counsel":["Jocelyn Teo (Attorney-General's Chambers) for the Public Prosecutor","Accused self-represented."],"timestamp":"2024-09-17T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ong Wei Le

Public Prosecutor v Ong Wei Le
[2024] SGMC 37

Case Number:Magistrate Arrest Case No 903952 of 2004 and 1 Other
Decision Date:12 September 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Jocelyn Teo (Attorney-General's Chambers) for the Public Prosecutor; Accused self-represented.
Parties: Public Prosecutor — Ong Wei Le

Criminal Law – Offences – Property – Criminal trespass

Criminal Law – Offences – Sexual offences – Voyeurism

Criminal Procedure and Sentencing – Sentencing – Persistent offenders

12 September 2024

District Judge Paul Quan:

Introduction

1       On 27 May 2024, the self-represented accused, Ong Wei Le (“Mr Ong”), a 27-year-old Singaporean, went to Tampines North Polyclinic. He did not have a medical appointment but had wanted to see the clinic. He ended up scouting the female toilet at the first level of the polyclinic and going back out to loiter at the lobby until he saw a polyclinic staff member, a 28-year-old female in a maternity uniform (“the victim”), walking into the female toilet. Mr Ong followed suit and subsequently peeped at her using the toilet. During this time, he was under a remission order for a previous set of property-related offences.

2       Mr Ong has pleaded guilty to two charges, one of voyeurism and the other of criminal trespass under section 377BB(1) and section 441 of the Penal Code 1871 (2020 Rev Ed) (“PC”) respectively. For voyeurism, he can be punished with imprisonment that may extend to two years, a fine, caning, or any combination of such punishments under section 377BB(7) of the PC. It is a term of imprisonment that may extend to three months, and/or with fine that may extend to S$1,500 for criminal trespass under section 447 of the PC.

3       Upon being convicted and sentenced to imprisonment that would breach his remission order, section 50T(2)(a) of the Prisons Act 1933 (2020 Rev Ed) (“PA”) allows the court to impose an enhanced sentence under section 50T(1)(a) of the PA on each charge in addition to the sentence to be imposed on them. The cumulative enhanced sentence must not exceed 41 days, the remaining duration on the remission order that was in effect from 11 May 2024 to 6 July 2024: section 50T(2)(b) of the PA.

4       Mr Ong has similar criminal antecedents for sexual and property-related offences. The prosecution has sought a global sentence of ten to 12 months’ imprisonment for voyeurism and criminal trespass, with a cumulative enhanced sentence of 40 days’ imprisonment for breaching his remission order:

(a)     applying the sentencing framework laid down for offences under section 377BB(4) of the PC in Tan Siew Chye Nicholas v PP [2023] 4 SLR 1223 (“Nicholas Tan”) to the present case and based on its low harm-moderate culpability assessment, coupled with an overall upward adjustment for offender-specific factors, the prosecution has sought a sentence of ten to 12 months’ imprisonment for Mr Ong’s voyeurism offence;

(b)     a three to four weeks’ imprisonment term was sought for his criminal trespass based upon the nature and circumstances of the trespass, Mr Ong’s similar antecedents, and his early indication of guilty plea;

(c)     the sentences on both charges should run concurrently as they occurred within “a close temporal proximity” to each other; and

(d)     applying the framework laid down in Abdul Mutalib bin Aziman v PP [2021] 4 SLR 1220, the breach of the remission order by the commission of –

(i)       voyeurism is pegged at a “moderate-high severity” that should attract an enhanced sentence of 27 days, or about two-thirds of the remaining duration of 41 days on the remission order, and

(ii)       criminal trespass is pegged at a “low-moderate” severity that should attract an enhanced sentence of 13 days, or about one-third of the remaining duration of 41 days on the remission order; and

(e)     the global sentence on the two charges, with the cumulative enhanced sentence under section 50T(2) of the PA would not offend the totality principle.

5       Mr Ong has pleaded for the court’s leniency and a lighter sentence. During mitigation, he has expressed remorse and assured me that he would mend his ways.

6       I sentence Mr Ong to an aggregate term of ten months’ imprisonment, with a cumulative enhanced sentence of 41 days’ imprisonment under section 50T(2) of the PA. I set out the reasons for my decision.

Issues to be decided

7       The three main issues I have to decide in this case are:

(a)     first, whether the Nicholas Tan sentencing framework for offences under section 377BB(4) of the PC applies in this case, and if so, the extent to which it does and its actual application in respect of voyeurism under section 377BB(1) of the PC;

(b)     second, the sentencing considerations in terms of the nature of the offence and the offender in respect of Mr Ong’s criminal trespass offence; and

(c)     third, the severity of the breaches of Mr Ong’s remission order by the voyeurism and criminal trespass that he had committed whilst under the order.

8       I resolve the issues in this way:

(a)     I decide that the Nicholas Tan framework applies in this case and arrive at an indicative starting point of seven months’ imprisonment based upon a low harm-moderate culpability assessment. According the aggravating and mitigatory weight to the relevant factors personal to Mr Ong that are present in this case lands on the side of an overall upward adjustment to arrive at the final sentence of ten months’ imprisonment;

(b)     In deciding to impose a sentence of three weeks’ imprisonment for criminal trespass, I took into account the moderate severity of the voyeurism offence that Mr Ong intended to commit by criminally trespassing the female toilet, his similar antecedents, and his early indication of guilty plea; and

(c)     Given the low gravity of his criminal trespass and moderately grave nature of his voyeurism coupled with his less than promising rehabilitative prospects, the breaches of Mr Ong’s remission order by both offences are moderately severe attracting enhanced punishments of between one-third and two-thirds of the remaining duration of 41 days on the remission order.

Analysis of issues

9       I analyse the issues in turn.

Issue 1: Nicholas Tan framework should apply to voyeurism under section 377BB(1) PC

10     I agree with the prosecution that the Nicholas Tan framework can apply to an offence under section 377BB(1) of the PC. This is based on the (caveated) dictum of the High Court that it saw no reason why the same sentencing framework it has laid down for section 377BB(4) offences should not apply to the other section 377BB offences if they are also punishable under section 377BB(7) of the PC: Nicholas Tan at [62]. That is the case here.

11     Applying that framework, the offence-specific factors point towards situating the present case within the low harm-moderate culpability spectrum with an indicative starting point of four to eight months’ imprisonment on a claim-trial, first-offender basis. I assess the indicative starting sentence to be at the higher end of this spectrum at seven months’ imprisonment. The upshot of balancing the offender-specific aggravating and mitigating factors is an overall upward adjustment to arrive at the final sentence of ten months’ imprisonment.

Offence-specific factors: low harm-moderate culpability

12     Considering the harm caused by the offence and his culpability in the round, I assess the indicative starting point to be at the higher end of the low harm-moderate culpability spectrum of the Nicholas Tan matrix at seven months’ imprisonment.

(1)   Low harm caused: brief period of observing victim on toilet bowl; victim was aware of and shocked at observation and wanted Mr Ong held accountable

13     The harm that Mr Ong caused was low, based on the period of the offending observation and what was observed, as well as the victim’s knowledge of the offending observation and the impact this had on her. But it is pegged at the higher end of the low harm spectrum given that the distress, to which Mr Ong had subjected the victim, would have been amplified because she was pregnant.

14     Mr Ong observed the victim very briefly seated on the toilet bowl and while the victim was shocked by Mr Ong’s actions, she was immediately aware that Mr Ong was peeping at her when she saw Mr Ong’s hair and forehead at the bottom of the cubicle. She quickly nipped the invasion of her privacy in the bud by stomping her foot to scare him away. She wanted the police to take action against Mr Ong to hold him accountable for his actions.

(2)   Moderate culpability: evidence of planning and premeditation, subject knowledge that observation was without consent; and efforts to evade apprehension

15     Mr Ong’s culpability is pegged at the higher end of the moderate culpability spectrum, based on the degree of planning and premeditation involved, his subjective knowledge that the observation was without consent, and his efforts to evade apprehension.

16     Mr Ong had no reason to be at the polyclinic and while he was there, he scouted the female toilet. He then loitered at the lobby and waited opportunistically for a victim and when one came along, he followed her into the toilet. While the victim was sitting on the toilet bowl, Mr Ong intentionally peeped under her cubicle. He knew he was observing the victim doing a private act without her consent. His instinctive response to flee the scene when the victim stomped her foot was telling; he knew he was doing something wrong and did not wish to get caught for his dastardly act. But the victim reported the matter to the polyclinic and they reviewed surveillance footage that caught Mr Ong entering the female toilet with the victim.

Offender-specific aggravating and mitigating factors: similar antecedents, lack of remorse and early indication of guilty plea

17     To the extent that he is traced for a previous offence of voyeurism and a worrying slew of sexual offences, Mr Ong’s similar criminal antecedents are aggravating. He was sentenced:

(a)     in 2015 to reformative training for outraging the modesty of a person under 14 under section 354(2) of the Penal Code (Cap 224 2008 Rev Ed) (“PC 2008”).

(b)     in June 2020 to nine weeks’ imprisonment on two counts of sexual exposure under section 377BF(3) of the PC 2008;

(c)     in October 2020 to a total of 20 weeks’ imprisonment on two counts under section 377BF(4) of the PC 2008 against a person under 14, with another attempted count taken into consideration for the purpose of sentence (“TIC”);

(d)     in June 2021 to eight weeks’ imprisonment on one count under section 377BF(3) of the PC 2008;

(e)     in March 2022, to 17 weeks’ imprisonment on one count under section 377BF(4) of the PC; and

(f)     in July 2022 to 24 weeks’ imprisonment on one count under section 377BF(2) of the PC.

In particular, Mr Ong was last convicted of attempted voyeurism only in December 2022 under section 377BB(1) of the PC and was sentenced to eight months’ imprisonment, concurrently with a six-month imprisonment term for another count of insulting the modesty of a person under section 377BA of the PC.

18     Mr Ong also showed a lack of remorse after committing the present voyeurism offence because he had continued to loiter in the vicinity. A polyclinic staff, who recognised him, spotted him at the bus-stop opposite the polyclinic more than two hours after he committed the voyeurism offence.

19     I therefore decide that an upward adjustment of another seven months’ imprisonment to the starting point sentence of seven months’ imprisonment should be made. For his early indication of guilty plea, I accord him the full 30% reduction in sentence as recommended by the guidelines of the Sentencing Advisory Panel in this regard, but only because in doing so, he has spared the victim of having to testify against him in a trial.

20     The final adjusted sentence for Mr Ong’s voyeurism offence is therefore ten months’ imprisonment.

Issue 2: Nature of criminal trespass offence and nature of Mr Ong as offender

21     Mr Ong entered the toilet with the intention of committing an offence against the victim. Whether the custodial threshold is crossed for such criminal trespass depends on the gravity of the offence intended to be committed. A three-week imprisonment term adequately reflects the nature of the offence and the offender.

Nature of voyeurism offence

22     The offence of voyeurism, which Mr Ong intended to commit with the criminal trespass, is moderately grave: see [29], below. This is in contrast with committing criminal trespass for the purpose of intimidating, insulting or annoying the victim. This was not a case of unlawfully remaining on property; Mr Ong’s entry into the female toilet was unlawful to begin with. He violated the sanctity of a private space, where female users should be able to feel safe and secure, though the violation was only for a brief period.

Nature of offender

23     Mr Ong has a similar antecedent for criminal trespass in respect of a previous TIC charge that he had admitted to as recently as March 2022, as well as a slew of other property-related antecedents:

(a)     Mr Ong was sentenced in June 2021 to two weeks’ imprisonment on one count of theft-in-dwelling under section 380 of the PC 2008, concurrently with two days’ imprisonment on one other count of theft under section 379 of the PC 2008, as well as another count and an attempted count that were TIC.

(b)     he was sentenced in September 2021 to a total of six weeks’ 18 days’ imprisonment on two counts of theft-in-dwelling under section 380 of the PC 2008, with another count of theft under section 379 of the PC 2008 that was TIC;

(c)     he was sentenced in November 2021, to six weeks’ imprisonment on two counts of theft-in-dwelling under section 380 of the PC 2008, with two other counts that were TIC;

(d)     he was sentenced in October 2023 to three months’ and nine weeks’ imprisonment on one count of mischief by fire or explosive substance with intent to cause damage under section 435 of the PC, and another count of theft in dwelling under section 380 of the PC.

His latest conviction was in January 2024 for two counts of theft-in-dwelling under section 380 of the PC, for which he was sentenced to 24 weeks’ imprisonment.

24     The three-week imprisonment sentence factors in the full 30% reduction in sentence for his early indication of guilty plea to this charge.

Issue 3: Enhanced sentences should be imposed under section 50T(2) PA

25     Mr Ong was under a conditional remission order at the time of the offences, with a period of his sentence for his last conviction on two counts of theft-in-dwelling being suspended from 11 May 2024 to 6 July 2024. By committing the present offences and being convicted and sentenced to imprisonment for them, he has breached the basic condition of the order, and therefore liable for enhanced sentence of imprisonment for each offence: section 50T(2)(a) of the PA.

26     Each enhancement is not to exceed 41 days, which is the remaining duration on the remission order as determined based on the date when the offence was committed: section 50T(1)(a) of the PA. In this case, both offences were committed on the same date, ie 27 May 2024. The cumulative enhanced sentence is also not to exceed the remaining duration on the remission order as determined based on the date of the earliest offence committed: section 50T(2)(b) of the PA. In this case, that date is also 27 May 2024, and the cumulative enhanced sentence is therefore also not to exceed 41 days.

Gravity of breach of remission order

27     On a consideration of the factors in section 50T(3) of the PA and on an application of the Abdul Matalib framework, the sentences imposed for both voyeurism and criminal trespass, which are not de minimis offences, should be enhanced: Abdul Matalib at [51]. The extent of such enhancements will depend on the gravity of the breach of Mr Ong’s remission order. This turns on the gravity of the fresh offences committed and his rehabilitative prospects.

(1)   Breach by voyeurism resides at upper end of Band 2 of Abdul Mutalib framework

28     Given the dissimilar but nevertheless moderately grave nature of the fresh voyeurism offence, as well as the lack of rehabilitative prospects for Mr Ong, I agree with the prosecution that the breach of the remission order in relation to that fresh offence resides at the upper end of Band 2 of the sentencing range set out in Abdul Mutalib at [47]. This entails an enhanced sentence of about two-thirds of the remaining duration of 41 days on the remission order, or 27 days.

(A)   Voyeurism is moderately grave

29     To the extent that it is a sexual offence that may be punishable additionally with caning, apart from imprisonment and fine, the gravity of the fresh voyeurism is moderate, although the upper limit of its imprisonment term may be lesser than that for theft-in-dwelling.

(B)   Low rehabilitative prospects: voyeurism is dissimilar but grave and committed two weeks after release

30     Voyeurism may be dissimilar to theft-in-dwelling, but it is nevertheless grave. The window between Mr Ong’s release and the commission of the fresh voyeurism offence is also small. Mr Ong committed the voyeurism offence on 27 May 2024, barely two weeks after release on his remission order on 11 May 2024. His prospect of rehabilitation now is therefore less than promising.

(C)   Low rehabilitative prospects: consistent pattern of offending shows lack of commitment to rehabilitation and reintegration

31     Mr Ong has a string of sexual and property-related antecedents, which date all the way back to 2015 when he was still 17. It reveals a consistent pattern of offending. For instance, he committed no less than eight offences of sexual exposure within a period of slightly more than two years from June 2000 to July 2022. Over a mere span of about two and half years from June 2021 to January 2024, he chalked up 14 theft offences. There were also previous multiple breaches of remission orders. This pattern of offending suggests that he has not been able to rehabilitate himself yet.

Breach by criminal trespass resides at low end of Band 2 of Abdul Mutalib framework

32     Given the similar but low gravity of the fresh criminal trespass offence, and the lack of rehabilitative prospects already discussed at [31], above, I agree with the prosecution that the breach of the remission order in respect of that fresh offence resides at the low end of Band 2 of the Abdul Mutalib framework. This entails an enhanced sentence of about a-third of the remaining 41 days on the remission order, or 14 days.

(A)   Criminal trespass is of low gravity

33     Given that criminal trespass is only punishable with imprisonment that may extend to three months and/or with fine that may extend to S$1,500, it is of low gravity compared to theft-in-dwelling.

(B)   Low rehabilitative prospects: criminal trespass similar property-related offence committed two weeks after release, consistent pattern of committing property-related offences, and string of other antecedents

34     To the extent that it is a property-related offence, the fresh criminal trespass offence is similar to theft-in-dwelling. Committing a similar property-related offence soon after being released on a remission order, as well as his consistent pattern of committing property-related offences and his string of other antecedents already discussed at [31] above do not speak to optimistic rehabilitative prospects. The entire duration of the remission order is less than two months, and he could not even stay crime-free for this relatively short period.

Conclusion

35     I sentence Mr Ong to a total of ten months’ imprisonment with an enhanced 41 days’ imprisonment:

(a)     I impose a sentence of ten months’ imprisonment for the voyeurism offence and three weeks’ imprisonment for the criminal trespass offence. I order both sentences to run concurrently; and

(b)     I enhance the sentence for the voyeurism offence by 27 days and the sentence for the criminal trespass offence by 14 days for the breach of a conditional remission order under section 50T(2)(a) of the PA. Both sentences run consecutively by virtue of the operation of section 50T(5) of the PA.

Sentences for voyeurism and criminal trespass to run concurrently

36     The criminal trespass was part of the same transaction as the voyeurism with one preceding immediately after the other, or in the words of the prosecution, both occurred in “close temporal proximity” to each other. I therefore order both sentences to run concurrently.

Enhanced sentences under section 50T(2) PA to run consecutively

37     The enhanced sentences under section 50T(2) of the PA must run consecutively even though I order the base imprisonment terms for both offences to run concurrently: section 50T(5) of the PA. The cumulative enhanced sentence is the entire remaining duration of 41 days on the remission order. In other words, the whole remission period granted to Mr Ong is rescinded.

Global sentence of ten months’ imprisonment with enhanced 41 days’ imprisonment not crushing

38     The global sentence of ten months’ imprisonment with an enhanced 41 days’ imprisonment does not offend the totality principle. It is not crushing on Mr Ong and wholly in keeping with his past record, especially given his similar criminal antecedents, and less than promising prospects of rehabilitation and reintegration in the light of his consistent pattern of offending.

39     I also backdate the sentence to 27 May 2024 when he was first arrested. He has been in remand since 27 May 2024.

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Public Prosecutor v Sree Kanth s/o Murugan
[2024] SGDC 231

Case Number:DAC 903245/2024 and another, Magistrate's Appeal 9154/2024/01
Decision Date:11 September 2024
Tribunal/Court:District Court
Coram: Carol Ling
Counsel Name(s): Sivakumar Ramasamy and Ho May Kim (Attorney-General's Chambers) for the Prosecution; Asoka Markandu (Anitha & Asoka LLC) for the Accused
Parties: Public Prosecutor — Sree Kanth s/o Murugan

Criminal Procedure and Sentencing – Offence under Section 376(2)(b) Penal Code 1871 punishable under Section 376(3) Penal Code 1871 – Young Offender – Reformative Training

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9154/2024/01.]

11 September 2024

District Judge Carol Ling:

Introduction

1       The Accused pleaded guilty to the charge below. He was 20 years of age at the time of his conviction.

DAC 903245/2024

You, are charged that you, on 28 October 2023, sometime at or around 2.10 a.m., at the void deck of Block 195 Kim Keat Avenue, Singapore, did cause one [victim], then 34 years of age [date of birth], to penetrate, with his penis, your mouth, without his consent, and you have thereby committed an offence under Section 376(2)(b) punishable under Section 376(3) of the Penal Code 1871.

2       One charge under section 354(1) of the Penal Code 1871, for touching the victim’s penis over his pants with his [the Accused’s] hand[note: 1] was taken into consideration (TIC) for the purpose of sentencing.

3       At the time of the commission of the offence and the recording of his plea of guilt, the Accused was 20 years old (Date of Birth: 17 April 2003). He was charged in court on 19 February 2024 and at the second mention of this case, he swiftly pleaded guilty. Both the pre-sentence Probation as well as Reformative Training (RT) reports were called for. The Accused was found suitable for both probation and reformative training.

4       I sentenced the Accused to a term of reformative training with level one intensity of rehabilitation, as recommended in the report. This was a minimum of six months detention in a Reformative Training Centre (RTC).

5       This is the Accused’s appeal against the sentence.

Facts of the Case[note: 2]

6       The victim is an Indian National who was working in Singapore as a maintenance worker at the material time.

7       On 27 October 2023 at around 10.30 pm, the victim chatted and shared 3 cans of beer with his relative at the void deck of Block 195 Kim Keat Avenue, Singapore. They talked until about 1.30 am on 28 October 2023. Thereafter, the victim’s relative returned to his flat in that same block to freshen up as he was preparing to take a flight that same morning at about 5.00 am. The victim waited for his relative at the void deck as his relative would be dropping the victim off at the victim’s dormitory along the way to the airport. While waiting for his relative, the victim fell asleep on a concrete slab at the void deck.

8       Sometime around 2.10 am, the Accused (who was returning home from supper) sat at a table in the void deck and was using his mobile phone. The Accused noticed the victim lying down around 5m away from where he was seated. The Accused also smelt alcohol on the victim.

9       The Accused proceeded to walk up and down for about three to five minutes near where the victim was sleeping, contemplating whether to engage the victim. Thereafter, the Accused approached the victim and used his right hand to touch the victim’s penis over the victim’s pants for about 1 minute (subject matter of the TIC charge). The Accused then put his right hand inside the victim’s pants and took out the victim’s penis. The Accused then put the victim’s penis into his mouth for about 5 seconds without the victim’s consent.

10     At this juncture, the victim woke up as he felt a wet sensation at his penis area. The victim saw the Accused sitting at his feet area bending his body towards the victim. The victim also saw that his penis was exposed. The victim was shocked and got up. The Accused ran off and the victim gave chase. Ultimately, the Accused managed to escape back to his home which was nearby. He was subsequently arrested later that same morning by the police.

The Approach to Sentencing Young Offenders

11     The Accused was under 21 years old at the time of the offences and when he pleaded guilty to the charge.

12     Where young offenders are concerned, the approach to sentencing is well-established. It involves a two-step approach as set out in Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”). From [77] of Al- Ansari:

“First, the court must ask itself whether rehabilitation can remain a predominant consideration. If the offence was particularly heinous or the offender has a long history of offending, then reform and rehabilitation may not even be possible or relevant, notwithstanding the youth of the offender. In this case, the statutorily prescribed punishment (in most cases a term of imprisonment) will be appropriate.

However, if the principle of rehabilitation is considered to be relevant as a dominant consideration, the next question is how to give effect to this….”

13     The Al-Ansari framework was elaborated upon in Public Prosecutor v Koh Wen Jie Boaz [2016] 1 SLR 334 and affirmed by the Court of Appeal in Public Prosecutor v ASR [2019] SLR 941. The Court of Appeal in See Li Quan Mendel v Public Prosecutor [2020] SGCA 61 at [15] emphasized:

“We reiterate the point that where young offenders are concerned, the sentencing framework remains the two-step approach set out in Al-Ansari ([7] supra) and Boaz Koh as affirmed and explained in ASR. The inquiry proceeds from the foremost question of whether rehabilitation remains the dominant sentencing principle, before considering whether probation or reformative training or some other type or combination of community-based sentences would be the correct way to achieve this. At the first stage, the court should not be asking whether the offender showed enough rehabilitative potential for probation, as opposed to reformative training. Rather, at that stage of the inquiry, the question is whether in all the circumstances, the presumptive emphasis on rehabilitation has been displaced. If it has, then rehabilitative options such as probation or reformative training would typically not be available; and if it has not been displaced, then such options may be considered.”

14     In summary, the two-step approach when dealing with youthful offenders is:

a)      Step One: The court must first ask itself the question whether rehabilitation remained the dominant sentencing consideration, or had the emphasis on rehabilitation been displaced;

b)      Step Two: If rehabilitation remained the dominant sentencing consideration, the court is to consider if probation, reformative training or some other type or combination of community-based sentences would achieve it.

Rehabilitation was the Dominant Sentencing Consideration

15     It was clear from both the Prosecution and Defence’s submissions that rehabilitation was the dominant sentencing consideration in this case.[note: 3] I was of a similar view. The overall facts and circumstances of the case did not displace the emphasis on rehabilitation as the dominant consideration in sentencing.

16     Since rehabilitation remained the dominant sentencing consideration, both probation and reformative training were viable sentencing options for the Court. As stated in the case of Koh Wen Jie Boaz at [36] (reiterated in the case of Public Prosecutor v Ong Jack Hong [2016] SGHC 182):

“While it is clear that probation is conducive to rehabilitation, I emphasise that it is not the only sentencing option for a youthful offender where rehabilitation remains the dominant sentencing consideration. Reformative training too is geared towards the rehabilitation of the offender (PP v Al-Ansari at [47]).”

17     On that basis, I called for both probation and RT suitability reports, despite the Prosecution’s objections to the former. The Accused was assessed suitable for a term of probation. He was also assessed suitable to undergo reformative training.

Parties’ Position on Sentence

18     Upon receipt of both reports, Prosecution maintained their position in seeking a term of reformative training for the Accused, citing deterrence as an applicable sentencing principle given the aggravated facts of the case.[note: 4] Moreover, the retrospective and prospective rationales for offenders to be sentenced on the basis of rehabilitation held “relatively less weight” since the Accused was on the cusp of adulthood when he committed the offence and already 21 years old at the time of the sentence.[note: 5] Probation lacked sufficient deterrence and a term of reformative training would strike the appropriate balance.[note: 6]

19     Defence Counsel, on the other hand, argued that reformative training would not address the Accused’s risk factors and that probation offered the “better rehabilitative outcome” for the Accused. Amongst other things, Defence Counsel emphasized Accused’s sexuality and highlighted that the programme in probation specifically addressed the Accused’s “core risk factors” - something that a stint in the reformative training centre may not do. [note: 7] Defence Counsel submitted that the Accused was remorseful, had accepted responsibility and had taken positive steps to address his sexuality[note: 8]. Deterrence was not a key factor since the Accused had “already made plans to not re-offend and it was observed that he was equipped with strong familial support.”[note: 9]

A Term of Reformative Training is the Appropriate Sentence

20     In cases where the youthful offender is found suitable for both probation and reformative training, the challenge for the court is to determine which rehabilitative regime would be more appropriate.

21     It was well-put in Al-Ansari at [66]-[67] where the court stated:

“In all cases, therefore, the key is always to find the most appropriate sentencing option to give effect to the dominant principle of rehabilitation, which is also balanced against the need for deterrence that might arise for particular offences. In cases involving young offenders, the sentencing options that give dominant consideration to the principle of rehabilitation invariably boil down to either probation orders or reformation training. The presence of more than one sentencing option which equally advances the rehabilitative principle must mean that the courts’ hands are not tied when it comes to giving effect to this principle. Any other view cannot be right, and the courts would be remiss in the discharge of their judicial duties by abdicating their function to determine the appropriate sentence in consideration of the unique facts of each case.

In determining the balance to be struck between the dominant consideration of rehabilitation and the need for deterrence, the courts must of course pay utmost attention to the unique facts and circumstances of each case. Without intending the following to be cast in stone like compulsory statutory factors, I would venture to suggest that some relevant factors include: (a) the seriousness of the offence; (b) the culpability of the offender; (c) the existence of antecedents; (d) the nature of the rehabilitation best suited for the offender; (e) the availability of familial support in the rehabilitative efforts; and (f) any other special reasons or need for rehabilitation. These factors would determine the appropriate sentence in each case.” (emphasis mine)

22     The court had to have regard to the unique facts and circumstances of each case in determining whether a term of probation or a term of reformative training would be the appropriate sentence.

Probation not Given as of Right

23     First, it ought to be remembered that young offenders are not entitled to probation. The fact that the Accused was assessed suitable for probation did not mean that he should be placed on probation. Probation is never granted as of right. As stated in the case of Public Prosecutor v Muhammad Nuzaihan bin Kamal Luddin [1999] SGHC 275:

“…. the above-italicised portions of s 5(1) of the Act make it clear that probation is never granted as of right, even in the case of juvenile offenders. In deciding whether or not probation is the appropriate sentence in each case, the court still has to take into account all the circumstances of the case, including the nature of the offence and the character of the offender.”

24     On a careful consideration of the facts and circumstances in this case, I was of the view that a term of reformative training was the appropriate sentence, even for the Accused who was a first offender and had pleaded guilty at the earliest opportunity.

Gravity of the Offence

25     The gravity of the offence, whilst it may not be the only consideration, is an extremely weighty and important one.

26     The offence which the Accused had committed was very serious. The punishment prescribed for his offence under section 376(2)(b) of the Penal Code was imprisonment up to 20 years, and also carried with it discretionary fine or caning. In the case of Pram Nair v Public Prosecutor [2017] 2 SLR 1015 which set the sentencing framework for offences punishable under section 376(3) Penal Code, the range of sentences in the starting band (Band One) is seven to 10 years’ imprisonment and four strokes of the cane for an offender who claims trial. The gravity of the offence was reflected in the punishment prescribed and the guideline sentences. [note: 10]

27     The nature and gravity of the offence committed by the Accused signalled a need for a strong measure of deterrence within the overarching focus and emphasis on rehabilitation.[note: 11]

Culpability of the Accused

28     What the Accused did was a gross violation of another individual’s sexuality, personal rights and privacy. Apart from that, he had chosen to do so in public, at a void deck below a Housing Development Board (HDB) block. Such was the brazen nature of the Accused’s act.[note: 12]

29     The Accused made a conscious and deliberate decision to take advantage of a sleeping victim, a complete stranger. He had noticed the victim sleeping on a concrete slab at the void deck and smelt alcohol on him. The Accused then walked up and down for about three to five minutes, contemplating whether to engage the victim. Subsequently, the Accused made his move by first touching the victim’s penis over his pants[note: 13] and then eventually sexually assaulting the victim by putting the victim’s penis into his mouth for about five seconds. It was only when the victim felt a wet sensation at his penis that he was awoken. There was a high level of violation of the victim’s person.

30     The Accused’s personal struggles with his sexual identity did not mitigate his actions. In the course of his submissions, Defence Counsel focused much on the Accused’s sexuality and his sexual preferences; how he “did not know where to draw the boundaries”.[note: 14] The Psychological Report dated 29 May 2024 (“Psychological Report”) did also state that the Accused’s offence “appeared triggered by a combination of sexual coping, offence-supportive thoughts and the inability to cope with acute stressors he was facing at that time”[note: 15]. For an offender of the Accused’s age, I was prepared to accept that at the material time, the Accused may have been struggling with his own sexuality, coping with it and dealing with related issues. However, even giving the Accused the full benefit, those reasons could not excuse his offending behaviour, give him a licence to do what he did, or lessen the gravity of the offence.

31     I agreed with the Prosecution that the Accused could not be said to have acted out of “youthful folly or inexperience” in this case. Rather, he “has had experience with several sexual relationships and is well-aware of the issues surrounding consent.”[note: 16] The Psychological Report reported that the Accused had a former male partner[note: 17]; he had been exposed to sexual acts as a minor and had also engaged in casual sexual interactions with male acquaintances he met online.[note: 18] The Probation report had similar details.[note: 19] Sexual experience aside, the Accused was also almost 21 years old when he committed this offence. As the court in Public Prosecutor v Quek Xiu Zhi Winfred [2015] SGDC 251observed at [22]:

“……the closer an adolescent is to adulthood, the more his status as a youthful offender lessens in significance and the more other factors such as the nature and severity of the offences and the need for deterrence could gain preponderance. The tapering off of the forbearance we extend to youthful offenders will generally come to an end by adulthood. By the time a person has attained adulthood, he should be regarded as having passed the threshold level of maturity such that, in most kinds of offences, the courts would not countenance the excuse that he “did not know better”.

32     Given the Accused’s age and sexual experience, this was not a case where latitude could be extended to the Accused because he “did not know better”.

Need for a Measure of Deterrence

33     I was firmly of the view that there was a need for a strong measure of deterrence in this case which a term of probation would not be able to provide. It is established that whilst probation orders do exert some form of deterrence, such deterrence, generally speaking, is “relatively modest in nature”.[note: 20]

34     Defence Counsel stressed that based on the RT report, it appeared that deterrence was not a key factor as the Accused had already made plans to no re-offend. He also had strong familial support.[note: 21] However, in so submitting, Defence Counsel had sidelined the issue of how inherently serious the offence was; that the offence in itself, called for a deterrent sentence. Even if the Court was willing to accept that the need for specific deterrence was reduced based on the Accused’s remorse and family support, general deterrence was also a highly relevant factor. As Prosecution had submitted, “a brazen sexual assault involving penetration, and in public, not resulting in any period of incarceration would send the wrong message to the public at large”,[note: 22] and I add, to all like-minded youthful offenders.

35     Further, the Accused’s risk of re-offending was assessed to be “moderate” based on both the Level of Service/Case Management Inventory (LS/CMI) as well as the Risk of Sexual Violence Protocol Version 2 (RSVP – V2).[note: 23] One of the risk factors highlighted by the Probation Officer was the Accused using sexually deviant means to cope with his sexual urges. That emphasized his lack of self-control, limited regard for others and poor ability to regulate his sexual urges. The Prosecution submitted that his risk of offending underscored the need for deterrence.[note: 24] I agreed with that.

Other Considerations

36     The case of Fahd Siddiqui v Public Prosecutor [2024] SGHC 66 (Fahd Siddiqui) relied on by Defence Counsel did not aid the Accused’s bid for probation. Defence Counsel highlighted offender-specific factors in Fahd Siddiqui (seemingly also present in the Accused’s case) which favoured probation.[note: 25] However, the case of Fahd Siddiqui did not stand for the proposition that when such factors are present, probation would be the appropriate sentence. On the contrary, the court in Fahd Siddiqui stated at [15]:

“Notwithstanding the favourable probation report, the need for deterrence and retribution in the present case means that probation is not appropriate here. Although the probation report is an important part of assessing whether an offender is suitable for probation, it does not and cannot advise the Court on whether general deterrence and retribution should feature in the particular case before the Court. That is a matter for the sentencing Court to determine after considering all aspects of the case.”

37     The court in Fahd Siddiqui found that neither probation nor reformative training was the appropriate sentence, and imposed a short detention order instead, adding that “it was not appropriate to sentence the appellant to RT just because probation was not the appropriate sentence”.[note: 26] In the present case, I was satisfied that reformative training was the appropriate sentence, given the facts and circumstances.

38     Both probation and reformative training were rehabilitative regimes which addressed the Accused’s rehabilitative needs. From that perspective, I did not think it was extremely helpful to scrutinise or dissect the programmes offered in the terms of probation and reformative training to decide which would be better placed to rehabilitate the Accused, and consequently, to arrive at the appropriate sentence. Defence Counsel looked at the probation programme and sought to persuade the court that probation “is more likely to achieve his desired rehabilitative outcome and that more importantly it’s tailored to meet his risk factors”.[note: 27] Having perused the elaborately-prepared probation and RT reports, it was clear that professionals in the social service and the prison service had fully assessed the Accused, ascertained his needs and determined that they could help him. Both probation and reformative training had programmes which would assist in the Accused’s rehabilitation, the main difference being whether such rehabilitation should take place in the community or in a structured, regimented environment. In any case, in a response dated 17 May 2024 to Prosecution’s query, Singapore Prisons Service confirmed that there were psychological interventions for sex offenders; psychiatric services were also available.[note: 28]

Conclusion

39     Given the overall facts and circumstances of this case, when placed side by side, a term of reformative training was the appropriate sentence as it provided the better balance between the need for rehabilitation and deterrence. I was satisfied that the recommended term of a level one intensity of rehabilitation which carried with it a minimum of a six-month detention in the RTC was not a disproportionate sentence.

40     The Accused is currently on bail pending appeal.

[note: 1]MAC 901218/2024

[note: 2]Statement of Facts

[note: 3]Notes of Evidence, 18 March 2024, 2/7-3/19; 3/30-5/31; Mitigation Plea, [8], [12]-[17]

[note: 4]Prosecution’s Address on Sentence, [7]; Notes of Evidence, 18 July 2024, 4/20-5/6

[note: 5]Prosecution’s Address on Sentence, [8]; Notes of Evidence, 18 July 2024, 3/23-4/13

[note: 6]Prosecution’s Address on Sentence, [10]; Notes of Evidence, 18 July 2024, 5/30-6/32

[note: 7]Defence’s Reply to the Prosecution’s Address on Sentence, [22]-[25]; Notes of Evidence, 18 July 2024, 17/27-18/12; 20/27-21/5

[note: 8]Defence’s Reply to the Prosecution’s Address on Sentence, [17]-[18]

[note: 9]Defence’s Reply to the Prosecution’s Address on Sentence, [19]; 17/11-26

[note: 10]Prosecution’s Address on Sentence, [7(c)]

[note: 11]Public Prosecutor v Ong Jack Hong [2016] 5 SLR 166,[14]; Prosecution’s Address on Sentence, [10(a)]

[note: 12]Prosecution’s Address on Sentence, [7(a)]

[note: 13]MAC 901218/2024 – TIC charge

[note: 14]Mitigation Plea, [15], [25]; Notes of Evidence 18 March 2024 4/20-24, 8/13-20; 18 July 2024, 18/12-22; Defence’s Reply to Prosecution’s Address on Sentence, [27]

[note: 15]MSF Psychological Report dated 29 May 2024, [46]

[note: 16]Prosecution’s Address on Sentence, [8a]

[note: 17]Psychological Report, [16]

[note: 18]Psychological Report, [30]-[34]

[note: 19]Probation Report, pages 15-16

[note: 20]Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449, [56]

[note: 21]Defence’s Reply to Prosecution’s Address on Sentence, [19]

[note: 22]Prosecution’s Address on Sentence, [10(d)]

[note: 23]Probation Report, [2], [19]; Psychological Report, [4], [46]

[note: 24]Prosecution’s Address on Sentence, [10(e)]

[note: 25]Notes of Evidence, 18 March 2024, 6/20-8/20; 18 July 2024, 23/23-24/3

[note: 26]Fahd Siddiqui v Public Prosecutor [2024] SGHC 66, [17]-[18]

[note: 27]Defence’s Reply to Prosecution’s Address on Sentence, [24]; Notes of Evidence 18 July 2024, 20/27-31

[note: 28]Letter from the Singapore Prison Service dated 17 May 2024 in response to Prosecution’s query dated 26 April 2024.

"},{"tags":["Criminal Law – Statutory offences – Gambling Control Act – Unlawful conduct of betting operations","Criminal Law – Statutory offences – Gambling Control Act – Acting as bookmaker","Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending","Criminal Law – Statutory offences – Remote Gambling Act 2014 – Unlawful remote gambling","Criminal Procedure and Sentencing – Sentencing – Benchmark sentences"],"date":"2024-09-10","court":"District Court","case-number":"District Arrest Case No 908642 of 2023 and 3 Others","title":"Public Prosecutor v Ong Guat Eng","citation":"[2024] SGDC 226","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32112-SSP.xml","counsel":["Tay Zhi Jie (Attorney-General's Chambers) for the Public Prosecutor","Jared Lee (Regent Law LLC) for the Accused."],"timestamp":"2024-09-16T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Ong Guat Eng

Public Prosecutor v Ong Guat Eng
[2024] SGDC 226

Case Number:District Arrest Case No 908642 of 2023 and 3 Others
Decision Date:10 September 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Tay Zhi Jie (Attorney-General's Chambers) for the Public Prosecutor; Jared Lee (Regent Law LLC) for the Accused.
Parties: Public Prosecutor — Ong Guat Eng

Criminal Law – Statutory offences – Gambling Control Act – Unlawful conduct of betting operations

Criminal Law – Statutory offences – Gambling Control Act – Acting as bookmaker

Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending

Criminal Law – Statutory offences – Remote Gambling Act 2014 – Unlawful remote gambling

Criminal Procedure and Sentencing – Sentencing – Benchmark sentences

10 September 2024

District Judge Paul Quan:

Introduction

1       The accused, Ong Guat Eng (“Mdm Ong”), a 62-year-old Singaporean, has pleaded guilty to two charges, one of unlawful conduct of betting operations under section 18(1) of the Gambling Control Act 2022 (Act No 15 of 2022) (“GCA”) and another of assisting in unlicensed moneylending under section 14(1) of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“MLA”). She has also consented to have two other charges, one of acting as bookmaker under section 5(3) of the Betting Act (Cap 21, 2011 Rev Ed) and another of unlawful remote gambling under section 8(1)(b) of the Remote Gambling Act 2014 (Act No 34 of 2014) (“RGA”), taken into consideration for the purpose of sentence (“TIC”).

2       For the GCA offence, Mdm Ong must be punished with imprisonment not exceeding five years that can be coupled with a fine not exceeding S$200,000 under section 18(3)(a) of the GCA. She is subject to twice the maximum punishment under section 124(8)(a)(ii) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) because the charge is framed as an amalgamated charge for separate transgressions amounting to a course of conduct under section 124(4) of the CPC.

3       As for the MLA offence, she must be punished with imprisonment not exceeding four years and a fine of not less than S$30,000 and not more than S$300,000 under section 14(1)(b)(i) of the MLA. This can be coupled with caning with not more than six strokes under section 14(1A) of the MLA and although Mdm Ong cannot be caned, an imprisonment term of not more than 12 months can be imposed in lieu of caning under section 325(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

4       The prosecution has sought to impose a global sentence of six months’ three weeks’ to ten months’ five weeks’ imprisonment and a fine of S$38,000 on Mdm Ong:

(a)     on her GCA charge, the prosecution has sought an imprisonment term of six to ten months by comparing the present case with PP v Chua Phoi Yong (“Chua”), unreported, District Arrest Case No 914729 of 2022. Chua’s case has in turn adapted and applied the sentencing framework laid down in Khoo Moy Seen v PP [2022] 5 SLR 728 (“Khoo”). The prosecution has also sought a fine of $8,000 to be imposed to disgorge the payments that Mdm Ong had received for conducting the betting operations unlawfully; and

(b)     on her MLA charge, the prosecution has sought an imprisonment term of three to five weeks and the mandatory fine of S$30,000, given the range of sentences imposed for previous cases from two weeks’ to two months’ imprisonment.

5       On the account of her plea of guilt, cooperation with the authorities and her husband’s demise that had led her to commit the offences, the defence has urged the court to exercise leniency in sentencing Mdm Ong. For the GCA offence in particular, the defence has submitted a final calibrated sentence of five to six months’ imprisonment and a fine of S$8,000, having applied the modified sentencing framework in Chua’s case, arriving at a moderate harm-low culpability assessment, and balancing the aggravating and mitigating factors.

6       I impose an aggregate sentence of ten months’ three weeks’ imprisonment and a fine of S$38,000 on Mdm Ong. I set out the reasons for my decision.

Issues to be decided

7       There are two main issues I have to decide in this case:

(a)     first, whether the Khoo sentencing framework applies to the GCA offence, and if so the extent to which it does, as well as its actual application; and

(b)     second, whether there are any aggravating or mitigating factors to justify departing from the norm sentence for the MLA offence.

8       I resolve the issues in this way:

(a)     The Khoo sentencing framework for offences under section 9(1) of the RGA can be adapted for the GCA offence. On an application of such an adapted framework, I arrive at:

(i)       an indicative starting sentence of 14 months’ imprisonment based on my moderate harm-medium culpability assessment. Balancing the aggravating presence of Mdm Ong’s gambling-related TIC charges and the mitigating effect of her early indication of guilty plea lands on the side of a downward adjustment of four months’ imprisonment to the indicative starting sentence, and

(ii)       a fine of S$8,000 to disgorge the payments that Mdm Ong received for her efforts for conducting the betting operations unlawfully; and

(b)     As Mdm Ong took steps to mitigate the harm caused by her MLA offence, I depart from the usual sentencing norm of one’s month’s imprisonment and impose a sentence of three weeks’ imprisonment instead, together with the mandatory minimum fine of S$30,000.

Analysis of issues

9       I analyse the issues in turn.

Issue 1(a): Khoo sentencing framework applies to GCA offence

10     While the defence has applied the Khoo sentencing framework to the present GCA offence, the prosecution has elected to draw comparisons with Chua’s case that has applied a modified framework and has also helpfully given some preliminary indications of its assessment if it were to apply the Khoo sentencing framework.

11     I decide that the Khoo sentencing framework for offences under section 9(1) of the RGA can be adapted for the GCA offence. In this regard, I agree with the approach in Chua’s case that has done so based on the fact that the maximum punishments for both the RGA and GCA offences are the same, and that the GCA was meant to consolidate gambling laws including the RGA: Chua at [13]-[15]. The court adapted the Khoo framework to factor in two differences: Chua at [16]. First, unlike the RGA offence, the GCA offence does not carry a mandatory minimum fine of S$20,000; second, the GCA also carries mandatory imprisonment unlike the RGA offence.

12     The sentencing approach is to first identify the level of harm caused by the GCA offence and the level of Mdm Ong’s culpability, having regard to the offence-specific factors. After ascertaining the levels of harm and culpability is to identify the indicative sentencing range. The sentencing ranges are adapted from the Khoo sentencing framework and are also on a claim trial basis:

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The indicative starting point sentence is then determined from the sentencing range. Finally, adjustments to the starting point ought to be considered having regard to the applicable offender-specific factors.

Issue 1(b): Application of Khoo framework

13     Applying the Khoo framework, the court in Chua’s case arrived at a high slight harm-medium culpability assessment and sentenced the accused in that case to 20 weeks’ imprisonment.

Harm caused is at higher end of moderate spectrum

14     The defence has assessed the level of harm to be at the lower end of the moderate spectrum. If it were to apply the framework, the prosecution has indicated a moderate harm assessment based on the fact that the harm caused in this case is higher because the value of bets collected in this case is ten times more than that in Chua’s case.

15     In this case, I assess the harm caused to be at the higher end of the moderate spectrum for three reasons:

(a)     first, the aggregate value of bets involved is substantial, based on a conservate estimate of S$192,000 over four months at the frequency Mdm Ong had worked, which was three days a week. This is compared to $14,400 in Chua’s case pegged at the high end of the low harm spectrum, and nearly $90,000 over 14 days in PP v Low Jit Chan [2021] SGMC 9 pegged at the mid-range of the moderate harm spectrum;

(b)     second, while there is no evidence of any transnational element, there is some indication of syndicate activity, and it is most certainly a group offence –

(i)       there was a scheme of operation. Mdm Ong worked for an unknown individual. An unknown Chinese man would be in touch with her at the start and the end of each workday. Specific roles were assigned to different individuals. For instance, Mdm Ong was assigned to collect bets, while another individual was assigned to pay out winnings to punters, as well as

(ii)       Mdm Ong’s monthly payout of S$2,000 for her efforts working three days per week was handsome, as was the payout to a punter for a winning number that was up to 4,000 times the initial bet; and

(c)     third, there was some difficulty of detection because Mdm Ong would only accept cash payment for the bets placed and punters were generally introduced to her services by word of mouth. Likewise in Chua’s case, the court found that there was syndicate operation and the operation was also not easy to detect: Chua at [21] and [22], with the overall harm assessed at the higher end of slight harm.

16     All things being equal more or less, the value of the aggregate bets is significantly higher in this case and the assessment of harm ought to be at the higher end of the moderate spectrum as such.

Mdm Ong’s culpability is at the lower end of medium spectrum

17     The defence has assessed the level of Mdm Ong’s culpability to be at the higher end of the low spectrum. The prosecution gave the same indication if it were to apply the framework because the accused in Chua’s case was more involved in the scheme whereas for Mdm Ong, it was a fairly simple scheme.

18     I hold a different view. As compared to Chua’s case, I assess Mdm Ong’s culpability to be at least at the lower end of the medium culpability spectrum for five reasons:

(a)     first, the duration of offending in this case was for four months from July 2022 to 2 November 2022 at a frequency of three days a week. The accused in Chua’s case worked six days a week for about three months: Chua at [38];

(b)     second, Mdm Ong was motivated by personal gain for quick money and was paid S$2,000 every month for her efforts. She was paid S$8,000 in all (with another S$2,000 meant for the month of November 2022 that was seized from her) for 48 days of work. In contrast, the accused in Chua was only paid S$9,360 for 72 days of work: Chua at [38];

(c)     third, to the extent that the operations were clockwork with a fixed routine set, there was some degree of planning and premeditation. At the start of each workday, Mdm Ong would collect a mobile phone used to record bets and a portable printer used to print betting slips from an unknown Chinese man. She would print (or handwrite) betting slips, record the bets in the handphone and collect the bets. At the end of each workday, she would hand over the phone and printer back to the unknown Chinese man, together with the day’s bets that the punters had placed;

(d)     fourth, as is evident from [18(c)] above, the level of operations was unsophisticated and rudimentary. Mdm Ong would receive and accept the bets from punters; whereas another individual would be responsible for paying out the winning to the punters; and

(e)     fifth, Mdm Ong’s role to collect bets was critical. Without her role, it would have been impossible for the operation to rake in S$4,000 to S$6,000 worth of collection in bets on a daily basis.

19     In Chua’s case, the court also found that there was some form of planning and premeditation, the level of sophistication of the operations was not high, and that the accused’s active role made the operation possible: Chua at [31], [34] and [36]. The overall culpability was assessed at the middle of medium culpability for the accused in that case. Mdm Ong’s level of culpability was somewhat comparable and should be pegged at least to the entry level of the medium culpability spectrum.

Indicative starting sentence

20     Based on a moderate harm-medium culpability assessment, the indicative sentencing range is nine months’ to two years’ imprisonment. I assess the starting sentence to be 14 months’ imprisonment. This also properly reflects the status of the GCA charge as an amalgamated charge under section 124(4) of the CPC. Such amalgamation is not merely administrative or procedural in nature; it may be used to signal the higher criminality of the accused and the gravity of the course of criminal conduct: PP v Song Hauming Oskar [2021] 5 SLR 965 at [69].

Offender-specific aggravating and mitigating factors

21     I consider the aggravating and mitigatory weight to be accorded to the relevant factors personal to Mdm Ong that are present in this case:

(a)     the presence of gambling-related TIC charges is aggravating. The general effect of TIC charges is to enhance the sentences for the charges that are proceeded with against the accused, especially if the TIC charges are similar in nature: PP v UI [2008] 4 SLR(R) 500 at [38]. Mdm Ong also has a related but dated gambling antecedent in 1998. I therefore apply a slight upward adjustment to the starting sentence; and

(b)     due weight should be given to her co-operation with the authorities and her early indication of guilty plea. Although Mdm Ong disputed the statement of facts at the last plead guilty mention within stage one of the proceedings, she has eventually come round and pleaded guilty to the GCA charge based on the same statement of facts. As such, I accord her the full 30% reduction in sentence for her guilty plea.

Downward adjustment of four month’s imprisonment to indicative starting sentence

22     The upshot of balancing the aggravating and mitigating factors lands on the side of an overall downward adjustment of four months’ imprisonment to the starting sentence.

Sentence of ten months’ imprisonment imposed for GCA offence

23     The final imprisonment term that I arrive at for the GCA offence is therefore ten months’ imprisonment.

Fine of S$8,000 to disgorge profits

24     Additionally, I impose a fine of S$8,000 in respect of the payment that Mdm Ong had received over the course of four months for her efforts for conducting the betting operations unlawfully. A fine would generally be imposed in addition to any custodial sentence to disgorge any profits made by the offender: Khoo Moy Seen at [16].

Issue 2: Sentence of three weeks’ imprisonment and mandatory minimum fine of S$30,000 should be imposed for MLA offence

25     The context of the MLA offence was that Mdm Ong was a debtor-turned-runner who assisted an unlicensed moneylender, “Raymond” carry on the business of unlicensed moneylending. In return for the repayment of her loan in the form of $500 taken off her loan every month, she provided her auto-teller machine (“ATM”) card linked to her bank account in August 2019. When Mdm Ong updated her passbook around September 2019, she realised that her bank account registered numerous unexplained transactions and cancelled the ATM card.

26     The sentences for such passive assistance by way of handling an ATM card or opening a bank account have generally ranged between two weeks’ to two months’ imprisonment and the minimum fine, with the norm being one month’s imprisonment: PP v Luciana Lim Ying Ying [2015] SGDC 257 at [57]. I give some credit to Mdm Ong’s small effort in mitigating the harm caused by the offence by cancelling the card. Instead of the sentencing norm of one month’s imprisonment, I sentence Mdm Ong to three weeks’ imprisonment instead, together with the minimum fine of S$30,000 on the MLA charge.

Sentences to run consecutively

27     Because the GCA and MLA charges are separate and unrelated and they safeguard different legally-protected interests, I order the sentences on them to run consecutively: PP v Raveen Balakrishnan [2018] 5 SLR 799 at [41] and [102].

Sentence of ten months’ three weeks’ imprisonment and fine of S$38,000 imposed

28     I impose an aggregate sentence of ten months’ three weeks’ imprisonment and a fine of S$38,000 on Mdm Ong, being:

(a)     ten months’ imprisonment and a fine of $8,000 in default five weeks’ imprisonment on the GCA charge; and

(b)     three weeks’ imprisonment and a fine of S$30,000 in default four weeks’ imprisonment on the MLA charge.

29     I backdate the sentence of imprisonment to 2 November 2022, when she was first arrested to take into account the period of custody and to exclude the bail period. She was on bail from 3 November 2022 till date. If Mdm Ong does not pay the fine of S$38,000, she will have to serve nine weeks’ imprisonment in default.

"},{"tags":["Criminal Procedure and Sentencing – Sentencing – Young offenders","Criminal Procedure and Sentencing – Sentencing – Benchmark sentences – Section 3(1) read with section 12 of the Computer Misuse Act 1993"],"date":"2024-09-09","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904008 of 2024","title":"Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy","citation":"[2024] SGMC 65","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32109-SSP.xml","counsel":["Ernest Chua Kai Guan (Attorney-General's Chambers) for the Public Prosecutor","Accused in-person."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Shen Wanqin","html":"Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy

Public Prosecutor v Muhammad Raimi Rushaidy Bin Mohamed Rudy
[2024] SGMC 65

Case Number:Magistrate Arrest Case No 904008 of 2024
Decision Date:09 September 2024
Tribunal/Court:Magistrate's Court
Coram: Shen Wanqin
Counsel Name(s): Ernest Chua Kai Guan (Attorney-General's Chambers) for the Public Prosecutor; Accused in-person.
Parties: Public Prosecutor — Muhammad Raimi Rushaidy Bin Mohamed Rudy

Criminal Procedure and Sentencing – Sentencing – Young offenders

Criminal Procedure and Sentencing – Sentencing – Benchmark sentences – Section 3(1) read with section 12 of the Computer Misuse Act 1993

9 September 2024

District Judge Shen Wanqin:

1       This is an ordinary case with extraordinary consequences. Mr Muhammad Raimi Rushaidy Bin Mohamed Rudy (“Mr Raimi”), like many others before him, opened and relinquished a bank account (“the Account”) to an unknown person without authorisation, in exchange for a lucrative monthly profit. However, unlike other cases, his offence under s 3(1) read with s 12 of the Computer Misuse Act 1993 (“the CMA Offence”) led to large sums of monies being laundered through the Account, including a sum of S$19,945.40 which was irreversibly and fraudulently wrenched from a 75-year-old retiree who lost a total sum of S$100,000 to scams.

2       Even though Mr Raimi was 21 years old at the time of sentencing, this had to be balanced against the severity of his offence and the pressing need to reign in the growing menace posed by scams-related offences. General deterrence was undoubtedly the predominant consideration in sentencing. The sentence of five months and two weeks’ imprisonment was necessary, to send a firm and unmistakable signal that such crimes would not be tolerated, even if they were committed by youthful offenders. Where serious scams-related crimes are concerned, youth is not a “Get Out of Jail” pass or the key to a more lenient sentence.

Background

3       The scams and cybercrime situation in Singapore is alarming. According to the Annual Scams and Cybercrime Brief 2023 prepared by the Singapore Police Force (“SPF”), the total number of scams cases in 2023 was 46,563, and the total amount lost through scams was S$651.8 million (https://www.police.gov.sg/-/media/4B5A6A81EDC4470EA8ED2B8CDE89EE4D.ashx). The number of scam and cybercrime cases increased by 49.6% to 50,376 in 2023, compared to 33,669 cases in 2022 (https://www.police.gov.sg/Media-Room/Police-Life/2024/02/Three-Things-you-Should-Know-About-the-Annual-Scams-and-Cybercrime-Brief-2023). Notably, youths formed about half of all scams-related offenders arrested in Singapore in 2022 (Singapore Parliamentary Debates, Official Report (5 April 2022), vol. 95, Mr Shanmugam, Minister for Home Affairs and Law). The Police also investigated more than 7,800 persons in 2022 and more than 9,600 persons in 2023 for money mule offences (Singapore Parliamentary Debates, Official Report (6 August 2024), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law).

4       The dire scams and cybercrime situation in Singapore led to the authorities adopting a multi-pronged approach of making legislative amendments, intensifying public education, and working with institutions and regulatory agencies to implement anti-scams measures, with a view to arresting the rising trend of scams and money mule cases (Singapore Parliamentary Debates, Official Report (6 August 2024), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law). On the legislative front, Parliament introduced new offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“CDSA”) and the Computer Misuse Act 1993 (“CMA”) in 2023, to strengthen SPF’s ability to deal with such cases. The legislative amendments took effect on 8 February 2024. One of the new offences is an offence of entering into an arrangement by handing over control of a bank account to another, without taking reasonable steps to ascertain the other person’s purpose of accessing, operating or controlling the account, under s 55A(1)(a) read with s 55A(1)(b)(ii) punishable under s 55A(5) of the CDSA (“the CDSA Offence”).

5       On the sentencing front, the Sentencing Advisory Panel Guidelines for Scams-Related Offences (“SAP Guidelines”) for the new offences were published on 21 August 2024. The SAP Guidelines recommended that custodial sentences be the norm for all offenders (except for juvenile offenders dealt with in the Youth Court) who committed scams-related offences, even for those offences attracting a fine. The rationale is three-fold: (a) first, scams-related offences are prevalent and increasing; (b) second, the sentences for such offences must be punitive enough and commensurate with the harm suffered by the victims; and (c) third, the need for deterrence and the public interest in suppressing scams warrant a custodial term (SAP Guidelines at p 4).

6       The present offences occurred in the thick of the dire scams and cybercrime situation. Mr Raimi abetted by engaging in a conspiracy with an unknown party in February 2023, to knowingly provide the unknown party with unauthorised access to the banking services of OCBC. He agreed to relinquish a bank account to the unknown party in February 2023, in return for a monthly payout of S$400 to S$600. He then opened the Account with OCBC, amended the personal particulars of the Account to those provided by the unknown party, and provided the unknown party with his Internet banking credentials. This was to allow the unknown party to access the Account for the purpose of effecting unauthorised transactions. Mr Raimi thereby committed the CMA Offence. He pleaded guilty and was convicted of the CMA Offence on 6 September 2024.

7       Mr Raimi also gave his consent for another charge under s 417 read with s 109 of the Penal Code 1871 to be taken into consideration for the purpose of sentencing (“the TIC Charge”). This charge was for abetting by conspiring with the unknown party to cheat OCBC, by deceiving OCBC into believing that he would be the sole operator of the account he applied for. He thereby fraudulently induced OCBC to open the Account in his name without conducting due diligence on the ultimate beneficial owner of the Account, which OCBC would not have done so if they were not so deceived (“the Cheating Offence”).

Whether rehabilitation was displaced as the dominant sentencing consideration

8       In PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 (“Al-Ansari”), the High Court established a two-staged sentencing framework for youthful offenders aged 21 or below:

(a)     At the first stage, the Court’s task is to identify and prioritise the primary sentencing considerations appropriate to the youth in question.

(b)     At the second stage, the Court is to select the appropriate sentence that would best meet those sentencing considerations and the priority that the Court has placed upon the relevant ones.

9       The two-staged framework in Al-Ansari was affirmed by the Court of Appeal in PP v ASR [2019] 1 SLR 941 (“ASR”) and was the applicable legal framework in this case. While the primary sentencing consideration is ordinarily that of rehabilitation where youthful offenders are concerned, rehabilitation is neither singular nor unyielding (see A Karthik v PP [2018] 5 SLR 1289 at [33] and [44] and PP v Koh Wen Jie Boaz [2016] 1 SLR 334 (“Boaz Koh”) at [97]). The presumptive emphasis on rehabilitation is displaced where: (a) the offence is serious; (b) the harm caused is severe; (c) the offender is hardened and recalcitrant; or (d) the conditions do not exist to make rehabilitative sentencing options available (Boaz Koh at [30]; See Li Quan Mendal v PP [2020] 2 SLR 630 (“Mendal See”) at [12]; see also the Court of Appeal’s clarification in ASR at [101] that factor (d) is best considered at the second stage of the Al-Ansari framework).

10     In this case, rehabilitation was displaced as the dominant sentencing consideration, by reason of the gravity of the offences and the harm caused. The CMA Offence and Cheating Offence, insofar as they were scams-related offences that facilitated money laundering, were serious offences (see Singapore Parliamentary Debates, Official Report (19 November 2018), vol. 94, Mrs Josephine Teo, Second Minister for Home Affairs). They took place against the backdrop of the prevalence and rising trend of scams and money mule cases, as well as the worrying phenomenon of youths being involved in these cases. Parliament’s intention was to strongly prevent and deter scams-related offences, to fight scams more effectively (Singapore Parliamentary Debates, Official Report (14 February 2023), vol. 95, Mr K Shanmugam, Minister for Home Affairs and Law). Parliament’s stance towards scams-related offences and the extensive efforts made to tackle such offences were indicative of the gravity of the offences.

11     Further, the potential harm and actual harm that arose from the present offences were very significant. A bank account is the most basic financial tool used by companies, businesses, and individuals from all walks of life. Bank accounts are commonly used to store money safely and to manage finances. Given the pre-eminence and pervasiveness of bank accounts as financial tools, scams-related offences involving the relinquishing of bank accounts not only undermined the public’s confidence in the reliability of the banking systems, but also jeopardised the efficacy, security and stability of the financial systems. If left unchecked, these offences are “akin to a slow drip of subtle but potent poison that will inexorably and irremediably damage Singapore’s standing, both as a financial hub as well as a preferred centre of commerce” (PP v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334 (“Fernando”) at [88]). The potential harm arising from the present offences was therefore very significant.

12     The actual harm that arose from Mr Raimi’s offences was serious and extensive. Mr Raimi, by relinquishing the Account, enabled an unknown party to conceal his true identity, circumvent the bank’s due diligence checks, gain unauthorised access to a banking service for illegitimate purposes, and remain undetected while creating havoc in the online sphere. As a result, the Account was misused as a vehicle for money laundering and the bank’s security system was undermined. Large sums amounting to a total of nearly S$74,000 were laundered and dissipated through the Account. These sums included S$19,945.40 which belonged to an elderly retiree who lost the monies to scams. In addition, time and resources were clearly expended in investigating the offences and in tracing the monies. The actual harm that arose from the present offences was therefore very significant.

13     By reason of the gravity of the offences and the harm caused, rehabilitation was displaced as the dominant sentencing consideration. Accordingly, the dominant consideration necessarily turned to deterrence and the appropriate sentence must be the legislatively prescribed option of imprisonment (Mendal See at [13]).

The appropriate sentence

14     In determining the appropriate length of imprisonment, the main issue I had to resolve was whether guidance could be taken from the sentencing benchmark approach recommended by the SAP Guidelines for the CDSA Offence. I resolved this issue in the affirmative for the following reasons. First, the mischief targeted by s 3(1) read with s 12 of the CMA and s 55A of the CDSA was the same. The intent of both provisions was to deter the unauthorised access and misuse of bank accounts (see Singapore Parliamentary Debates, Official Report (9 May 2023), vol. 95, Mrs Josephine Teo, Second Minister for Home Affairs; see also the Long Title of the Computer Misuse Act 1993). Second, the nature of the CMA Offence and the CDSA Offence was also the same – the crux of the matter was that an offender had relinquished a bank account to another. As such, I agreed with the Prosecution that there was no good reason for adopting a differentiated approach for the CMA Offence.

15     That said, as the CMA Offence and the CDSA Offence attracted different prescribed punishments, in fairness to Mr Raimi, the starting sentence for the CMA Offence should also be adjusted. This was based on two considerations: (a) first, the starting sentence should not be excessive when compared to the applicable maximum punishment; and (b) second, there should be relative proportionality in the starting sentences between the different offences (SAP Guidelines at p 7). As the maximum imprisonment terms prescribed for the CMA Offence and the CDSA Offence were two years and three years respectively, the starting sentence for the CMA Offence was derived by applying a two-third ratio to the starting sentence of six months’ imprisonment for the CDSA Offence. I therefore agreed with the Prosecution that the starting sentence for the CMA Offence was four months’ imprisonment, for a first-time offender convicted after a trial in an archetypal case.

16     I then turned to the offence-specific and offender-specific factors, which warranted an uplift in the sentence. First, Mr Raimi was motivated to commit the offence for personal gain. He was enticed by the substantial payout of S$400 to S$600 per month and wanted to earn fast cash. Second, a large quantum of funds was received and transferred out of the Account over a period of five days. Between 12 March 2023 and 16 March 2023, S$73,367.81 was credited into the Account, and S$73,312.69 was withdrawn from the Account, leaving only S$55.12 in the Account at the time of seizure.

17     Third, amongst the funds that were dissipated through the Account, S$19,945.40 were scam proceeds that were taken from a vulnerable victim. The victim was a 75-year-old retiree and an elderly man who lost a total sum of S$100,000, including the sum of S$19,945.40, to a police impersonation scam. Even though the monies that were dissipated through the Account were limited to S$19,945.40, none of the monies had been recovered to date. As for the offender-specific factors, the TIC Charge for fraudulently inducing OCBC to open the Account was connected and similar in nature to the CMA Offence. As such, the effect of the TIC Charge was to enhance the sentence for the CMA Offence (PP v UI [2008] 4 SLR(R) 500 at [37]–[38]).

18     Given the offence-specific and offender-specific factors, I applied a four-month uplift to the starting sentence of four months for the CMA Offence. I then applied the full sentencing discount of 30% on account of Mr Raimi’s early indication of his plea of guilt (Stage 1) and arrived at the sentence of five months and two weeks’ imprisonment. For the sake of completeness, I must add that I did not place any significant weight on Mr Raimi’s youth in sentencing. While the assumption would ordinarily be that the young did not know any better (PP v Mok Ping Wuen Maurice [1998] 3 SLR(R) 439 at [21]), Mr Raimi should have known better than to relinquish his account to a stranger for profit. He was already on the cusp of adulthood and was not a young and ignorant teenager. He showed during the hearing that he had the maturity to appreciate, at the time he opened the Account, that the Account was meant for his own use and should not be used by any other persons for any other unauthorised transactions. Yet, he chose quick profits rather than to do what was right. Accordingly, there was no reason for me to accord any significant sentencing discount on account of his youth alone.

Conclusion

19     This case demonstrates that insofar as scams-related offences are concerned, outcomes do matter (see the explanation of the outcome materiality principle in PP v Hue An Li [2014] 4 SLR 661 at [70]–[74] and Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 at [43]–[45]). The scourge of scams must be firmly nipped in the bud before it morphs into a full-blown disaster. The price of security is unstinting vigilance and the unflinching imposition of appropriately stiff sentences in dealing with transgressions (Fernando at [88]). The sentence of five months and two weeks’ imprisonment sends a clear and unmistakable signal that offences involving the relinquishing of a bank account for unauthorised purposes will not be tolerated. Any person who chooses to misuse his bank account for quick profits must be prepared to suffer the pain of incarceration.

"},{"tags":["Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(2)(b) read with Section 65(6)(a) – Driving without reasonable consideration causing death – Sentencing"],"date":"2024-09-09","court":"District Court","case-number":"District Arrest Case No 913489 of 2024, Magistrate's Appeal No 9174 of 2024 - 01","title":"Public Prosecutor v Yuan Changqing","citation":"[2024] SGDC 233","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32107-SSP.xml","counsel":["DPP Sean Teh (Attorney-General's Chambers) for the Public Prosecutor","The accused in person."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Kok Shu-en","html":"Public Prosecutor v Yuan Changqing

Public Prosecutor v Yuan Changqing
[2024] SGDC 233

Case Number:District Arrest Case No 913489 of 2024, Magistrate's Appeal No 9174 of 2024 - 01
Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Sean Teh (Attorney-General's Chambers) for the Public Prosecutor; The accused in person.
Parties: Public Prosecutor — Yuan Changqing

Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(2)(b) read with Section 65(6)(a) – Driving without reasonable consideration causing death – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9174/2024/01.]

9 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Yuan Changqing is a 39-year-old male Chinese national who pleaded guilty to one charge under section 65(1)(b) punishable under section 65(2)(b) read with section 65(6)(a) of the RTA for driving without reasonable consideration for other persons using the road.

2       I sentenced the accused to 10 months’ imprisonment and a disqualification and prohibition period of 8 years with effect from the date of release.

3       The accused is dissatisfied with the sentence and has filed an appeal.

Facts

The accident

4       On 12 July 2023, the accused was the driver of a motorbus bearing the registration number PD6999T, operating a bus shuttle service run by the company Leisure Frontier (S) Pte Ltd between Sembawang wharves, Bukit Canberra Hawker Centre and Yishun MRT Station.

5       The accused was driving along Yishun Ring Road towards Yishun Avenue 2, towards Sembawang wharves. As the accused reached the signalised cross-junction of Yishun Ring Road and Yishun Avenue 2, the traffic light signal was green in his favour. As the accused was on the left most lane of Yishun Ring Road, this meant that the accused could make a discretionary left turn onto Yishun Avenue 2 towards Canberra Road if there were no persons crossing the pedestrian crossing.

6       At about 5.55pm, one Jeffson Tang (“the deceased”), an 18-year-old boy, began cycling across the pedestrian crossing at Yishun Avenue 2, while the green man traffic signal was blinking in his favour, which signalled that he had the right of way.

7       At the same time, the accused executed the discretionary left turn from Yishun Ring Road onto Yishun Avenue 2 without slowing down or stopping his vehicle, and failed to keep a proper lookout for the deceased as he cycled across the pedestrian crossing. The accused’s motorbus collided with the deceased, causing the deceased to be flung off his bicycle and fall onto the road, under the accused’s motorbus. The deceased was then run over by the motorbus’ rear left tyre.

8       Upon hearing a sound from the rear left side of the bus, the accused stopped the bus and alighted, where he saw the deceased lying on the road surface along Yishun Avenue 2 with blood coming out from his head. The accused called for the police while the deceased’s father and other passers-by called for an ambulance. The accused remained at the scene till the police and ambulance arrived.

9       The incident was captured on two cameras on the bus, one which captured a front view and one that captured a left-side view. It was also captured on an in-car camera of a witness whose car was on the opposite side of the junction at the time of the incident.

Prevailing conditions

10     At the material time, the weather was fine, road surface was dry, traffic flow was moderate, and visibility was good. There was no complaint of traffic light malfunction at the time of the accident on 12 July 2023.

The injuries

11     A paramedic who attended at the scene observed the deceased lying in a supine position with his face facing rightward, and blood on the road surface. The deceased was also found to be bleeding from the ear and his face was deformed, with multiple abrasions on his lower limbs. The paramedic found that the deceased had no pulse and was not breathing. The deceased was pronounced dead at about 6.15pm on 12 July 2023.

12     In the autopsy report dated 13 July 2023 prepared by Dr Nadia Lee Wen Yun of the Health Sciences Authority Mortuary, the deceased’s cause of death was certified as “HEAD AND CHEST INJURIES”. The examining doctor found that the injuries present on the deceased were consistent with that being sustained in a motor vehicle collision.

Vehicle assessments

13     In an inspection report dated 14 September 2023 prepared by Senior Technical Investigator Muhd Nazril of LKK Auto Consultants Pte Ltd, the deceased’s bicycle was found to have been damaged all around. The damaged parts included the front fork assembly, right handlebar end, sub frame, rear sub frame, left pedal, gear train, seat, rear wheel rim. A mechanical inspection found that the two tyres of the deceased’s bicycle were in serviceable condition.

14     In a mechanical inspection report dated 12 October 2023 by Technical Investigator Sherwin Beh of LKK Auto Consultants Pte Ltd, the accused’s motorbus was noted as having appeared to have sustained no damage at the time of the inspection. The report indicated that the motorbus’ engine system, transmission system, steering system, braking system and tyres were all in serviceable condition, with no evidence to suggest that there was possible mechanical failure and/or abnormal behaviour to the motorbus that could have caused or contributed to the accident.

Antecedents

15     The accused had one previous conviction for speeding on 16 February 2021, which involved him exceeding the speed limit while driving a heavy vehicle.

16     He had also previously compounded two offences of careless driving, one for a contravention of Rule 29 of the Road Traffic Rules in May 2019, and one for an offence under section 65(5)(a) of the RTA in May 2020. Both offences were compounded for $250 each.

Prosecution’s sentencing submission

17     The Prosecution submitted that the appropriate global sentence was between 10 to 12 months’ imprisonment with the mandatory minimum disqualification period of 8 years, noting that the dominant sentencing principle in this case was deterrence.

18     Reference was made to the sentencing framework for offences under section 65(2)(b) read with section 65(6)(a) of the RTA as set out in the case of Public Prosecutor v Lim Wei Liang William [2023] SLR(StC) 614 (“William Lim”). Applying the framework, the Prosecution submitted that the accused’s culpability could be regarded as being at the middle to higher end of the low culpability range. The following culpability enhancing factors were highlighted:

(a)     The accused was driving a heavy vehicle and was thus required to take extra care and consideration but had failed to do so.

(b)     The accused had violated multiple traffic rules, namely: (i) failing to keep a proper lookout when approaching a junction and conducting checks to ensure it is safe to move off before doing so as required under rule 72 of the Highway Code, and (ii) failing to stop before the signalised traffic junction as required by rule 4 of the Road Traffic (Pedestrian Crossings) Rules.

19     The Prosecution acknowledged that there was some contribution to the accident by the deceased’s failure to stop and look out for oncoming traffic before using the pedestrian crossing, as was required of him under regulation 13A(1)(b) of the Active Mobility Regulations 2018.

20     Based on this assessment of culpability, the Prosecution submitted that the indicative starting sentence ought to be between 13 to 16 months’ imprisonment.

21     As for the offender specific factors, it was highlighted that the accused was traced for traffic offences as set out at [15] to [16] above, which they argued showed a pattern of unsafe and careless driving by the accused and a disregard for traffic rules. On account of these antecedents, the Prosecution argued that an uplift to 15 to 18 months’ imprisonment was appropriate.

22     Given the accused’s plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentence for Guilty Pleas (“PG Guidelines”), the Prosecution accepted that a 30% reduction was appropriate in this case, bringing the overall sentence down to 10 to 12 months’ imprisonment.

Defence’s sentencing submission and mitigation

23     In his oral address to the court, the accused first sought to provide an explanation for his previous antecedents. He explained that as a driver who worked on the road daily, his work schedule was demanding and tiring. As a result of his packed work schedule, the accused said that he did not get to rest well at nights, he was often sleepy, and he thought that this could have caused him to be negligent or flout the rules when driving.

24     In relation to his previous speeding conviction, he pointed out that this was committed during the Covid-19 pandemic. He explained that his company arranged for transportation of migrant workers to get their vaccinations and that his because of his packed work schedule, he kept rushing and he said this may have caused his flouting of the rules.

25     As for the offence in question, the accused expressed his remorse and apologised to the family of the deceased, recognising that it was too late for him to say anything at this stage.

26     In asking for a lightest possible sentence, the accused explained that his father had suffered an aneurysm earlier in the year and was currently in a poor state of health, as such he expressed his desire to be able to return home quickly to be with his father.

Reasons for the sentences imposed

Punishment provisions

27     Given the accused’s previous conviction for speeding under section 63 of the RTA, section 65(8) of the RTA provides that he is a repeat offender, thereby triggering the enhanced punishment provision under section 65(2)(b).

28     Section 65(2)(b) of the RTA provides that a repeat offender is liable to a fine not exceeding $20,000 or to imprisonment for a term exceeding 6 years or to both. Both the maximum fine and imprisonment terms that this provision provides for are double that which applies to a first-time offender under section 65(2)(a).

29     Section 65(6)(a) of the RTA provides that a court that convicts an offender under section 65(2)(b) is to also order that person to be disqualified from holding or obtaining a driving licence for a period of not less than 8 years, unless there are special reasons to not order or order otherwise.

The sentencing framework

30     There is presently no sentencing framework for an offence under section 65(2) of the RTA for the offence of careless or inconsiderate driving causing death that has been set down or endorsed by the High Court.

31     As the Prosecution pointed out, the case of William Lim, which is a decision of the District Court, provides helpful reference for this present case. William Lim itself draws on an earlier decision of the District Court in the case of Public Prosecutor v Selvakumar Ranjan [2020] SGDC 252 (“Selvakumar Ranjan”), which set out a sentencing framework for offences under section 65(2)(a) of the RTA.

32     Under both the Selvakumar Ranjan and William Lim frameworks, the sentencing court first identifies the accused’s level of culpability based on a set of working definitions:

Level of culpability

Definition

Low

Generally, no dangerous driving behaviour exhibited.

Typically careless or inconsiderate manner of driving like failing to give way when other road users have the right of way or exhibiting poor control of the vehicle.

Moderate

Some manner of dangerous driving behaviour exhibited. This may include swerving across lanes suddenly and without warning, driving against the flow of traffic, weaving in and out of traffic, speeding, beating red light, handphone driving, sleepy driving or failing to use visual aids while driving, etc.

High

Serious manner of dangerous driving exhibited. This may include several forms of dangerous driving exhibited, dangerous driving behaviour exhibited over an extended distance or deliberate bad driving behaviour.



33     Based on the assessed level of culpability, the frameworks set out corresponding sentencing ranges for each tier of culpability. Unlike sentencing frameworks for road traffic offences that involve other kinds of harm, such as under section 65(3) or section 65(4), the element of harm under section 65(2) is constant since death is always the outcome, as such there is no harm element incorporated in the framework.

34     Under the William Lim framework, the sentencing ranges were adjusted upward from those in Selvakumar Ranjan to account for the higher prescribed punishment under section 65(2)(b):

Level of culpability

Sentencing range under section 65(2)(b) RTA

Low

Eight months to two years’ imprisonment (a fine of up to $30,000 or a lower sentence may be imposed in exceptional circumstances)

Moderate

2–4 years’ imprisonment

High

4–6 years’ imprisonment



35     Once a starting point is identified within the indicative sentencing range, adjustments can be made to take into account offender-specific factors followed by a final look to consider any application of the totality principle.

Assessment of the accused’s level of culpability

36     I agreed with the Prosecution that the accused’s level of culpability in this case could be considered low, though it ought to be pegged at the middle to higher end of the low range of culpability.

37     On the facts of the case, there were no obvious forms of dangerous driving by the accused such as those identified in the description of the moderate level of culpability above at [32]. That said, I did not think that the accused’s level of culpability could be considered as being at the very lowest end of low culpability.

38     As the Prosecution pointed out, there were a number of aggravating factors that ought to affect the assessment of his level of culpability in this case, including the flouting of the Highway Code and the Road Traffic Rules. It also bears emphasising that not only did the accused fail to stop at the signalised junction before he executed the turn, but he failed to even slow down as he approached the junction. As seen in the footage, the bus travelled at a constant speed as it travelled down Yishun Ring Road and as it approached the junction, with the speed dipping slightly only as the left turn was made.

39     While the Statement of Facts does not expressly state so, it would appear from the fact that the accused only stopped the bus when he heard a sound from the collision that he had not even registered the presence of the deceased on the pedestrian crossing until the collision had taken place. This was despite the fact that the turn involved the accused moving across a pedestrian crossing which was on the blinking green man signal, which ought to have alerted the accused to likelihood of pedestrians being present at the crossing, or about the enter the crossing.

40     While the Prosecution accepted that there was some contribution by the deceased in the sense that he had failed stop and look out for oncoming traffic before entering the pedestrian crossing, in my view the impact that this ought to have on the accused’s level of culpability, if any, ought to be quite minimal.

41     In this regard, I was mindful of the High Court’s decision in Guay Seng Tiong Nickson v Public Prosecutor [2016] 3 SLR 1079 (“Nickson Guay”) where it was held that the conduct of a victim or a third party must have a direct bearing on the culpability of the offender in order to affect the sentence being imposed. So, while the deceased can indeed be seen entering the pedestrian crossing without slowing or stopping, and I accepted that his conduct may have contributed to the outcome of this accident, I could not see how this diminished the lack of care that the accused had exhibited in his failure to keep a proper lookout for pedestrians at the pedestrian crossing. By failing to even slow down the bus while he was approaching the junction and then executing the turn, the accused had clearly compromised his ability to keep a proper lookout for other road users while he made that turn.

42     I also agreed with the Prosecution that given that the accused was operating a heavy vehicle, namely a motorbus, that ought to have required him to take extra care since there is a potential for greater harm to occur when a heavy vehicle is involved in an accident. In the case of the motorbus, the fact that this was a longer vehicle than a regular car meant that the accused needed to exercise greater care in ensure that a proper lookout was kept for the entire length of the vehicle.

43     Taking reference from the William Lim sentencing band for low culpability case, which is a range of between 8 months to 2 years imprisonment, in my view a starting point around the middle of the range was appropriate and I agreed with the Prosecution’s suggested starting point of around 13 to 16 months’ imprisonment.

The offender specific factors

44     Turning to the offender specific factors in this case, the significant aggravating factor in this case was the accused’s antecedents. I agreed with the Prosecution that the accused’s history of traffic infringements suggested a pattern of unsafe and careless driving. These antecedents were recent and indeed showed that the present case was not an isolated incident of poor driving conduct by the accused.

45     The accused, on his part, accepted that he had been negligent in his previous driving conduct and sought to provide explanations for why he had driven in such manner. The suggestion that was made was that his poor driving was a result of work requirements imposed on him by his employer, which he was simply trying to fulfil as part of the job and to make a living.

46     While I empathised with the accused’s situation and could appreciate that he was doing what he could to make a living as an employed driver, I could not see how any of this affected his level of culpability for the present offence, nor did it reduce the aggravating weight of his driving antecedents. As the driver of a bus that can ferry a large number of passengers, it must have been clear to him that each time he got behind the wheel of the bus and drove in a manner that was less than safe, he put the safety of all his passengers as well as other road users at risk. As much as he might have been concerned for his job security, I did not think that could be an excuse for compromising on the safety of his passengers and other road users.

47     As for mitigating factors, I noted that the accused had pleaded guilty well within Stage 1 of the PG Guidelines, for which up to 30% discount can be accorded. The accused was also clearly remorseful, as he expressed his apologies to the family of the deceased.

48     Taking these factors into consideration, I made the appropriate adjustments from the starting point of 13 to 16 months’ imprisonment and arrived at 10 months’ imprisonment, which in my view adequately and appropriately reflected the overall criminality of the accused in this case.

49     I did not think that there were any special reasons not to impose a disqualification period below the mandatory minimum period of 8 years in this case. As the accused is a foreigner, I also made an order under section 47F of the RTA prohibiting him from driving any motor vehicle in Singapore for the same period of time.

Sentencing precedents

50     In arriving at my decision on sentence, I had regard to the case of William Lim as a sentencing precedent. In William Lim, the offender also faced a charge for an offence punishable under section 65(2)(b) of the RTA, due to a previous speeding conviction which triggered the enhanced punishment provision for repeat offenders. He was sentenced to 8 months’ imprisonment and 8 years’ disqualification.

51     In William Lim, the offender was driving a minibus out of a carpark, intending to turn right. As he approached the exit of the carpark, the offender checked for oncoming traffic and spotted a motorcycle that was headed towards him on his right. The accused did not stop at the stop line at the exit of the carpark and in doing so also failed to comply with a stop sign. As the accused exited the carpark and executed the right turn, he checked for vehicles coming from his left, at which point the motorcycle collided into his vehicle. The motorcyclist was flung off the motorcycle and landed on a grass verge. He subsequently passed away from the injuries sustained in the accident.

52     Apart from the previous speeding conviction that triggered the enhanced punishment provision for repeat offenders, the offender in William Lim had another speeding conviction, though it was for a speeding offence committed on the same day as the other speeding offence, i.e. both speeding offences were committed on the same day.

53     While the present case similarly involved a driver who had flouted traffic rules by failing to stop and failing to keep a proper lookout, in my view the accused’s conduct in this case was more aggravated than that in William Lim by his failure to even slow down as he approached the junction. Bearing in mind that the vehicle that the accused was driving was also a much heavier one, being a motorbus, which heightened the level of potential harm that could result from an accident, to my mind the failure to stop or even slow down evinced a more significant degree of culpability.

54     This is consistent with the view expressed by the court in William Lim, where the court noted (at [69] and [70]) that the culpability of the offender in Selvakumar Ranjan was higher than that of the offender in William Lim, noting that the main culpability enhancing factors in Selvakumar Ranjan were the fact that he was driving a heavy vehicle in addition to the fact that he had failed to stop at the stop line. The court in Selvakumar Ranjan had pegged the level of culpability of the offender at the higher end of the of the range of low culpability.

55     There is also the fact that the accused in this case had antecedents for similar offences, namely the two compounded offences for careless driving, which to my mind suggested a more concerning pattern of unsafe driving behaviour. The accused himself confirmed that he did in fact drive whilst feeling tired because of his work schedule, which he thought might have contributed to his poor driving on those occasions.

56     In my view, the present case was more aggravated than the facts in William Lim, as such I did not think that the sentence of 10 months’ imprisonment was out of step with this precedent.

Conclusion

57     For the reasons set out above, I sentenced the accused to 10 months’ imprisonment and a disqualification and prohibition period of 8 years with effect from her date of release.

58     The accused was remanded from the date of his first mention on 24 July 2024 and is presently serving his sentence.

"},{"tags":["Criminal Law – Statutory Offences – Road Traffic Act","Criminal Law – Offences – Drink Driving – Repeat Offender"],"date":"2024-09-09","court":"District Court","case-number":"District Arrest Case No. 912256 of 2022","title":"Public Prosecutor v Zhong Liu","citation":"[2024] SGDC 25","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32106-SSP.xml","counsel":["Jonathan Tan (Attorney-General's Chambers) for the Prosecution","Cory Wong Guo Yean (Invictus Law Corporation) and Ng Yong Ern Raymond (Tan Lay Keng & Co.) for the Defence."],"timestamp":"2024-09-13T16:00:00Z[GMT]","coram":"Shawn Ho","html":"Public Prosecutor v Zhong Liu

Public Prosecutor v Zhong Liu
[2024] SGDC 25

Case Number:District Arrest Case No. 912256 of 2022
Decision Date:09 September 2024
Tribunal/Court:District Court
Coram: Shawn Ho
Counsel Name(s): Jonathan Tan (Attorney-General's Chambers) for the Prosecution; Cory Wong Guo Yean (Invictus Law Corporation) and Ng Yong Ern Raymond (Tan Lay Keng & Co.) for the Defence.
Parties: Public Prosecutor — Zhong Liu

Criminal Law – Statutory Offences – Road Traffic Act

Criminal Law – Offences – Drink Driving – Repeat Offender

9 September 2024

District Judge Shawn Ho:

Introduction

1       The Accused, Mr Zhong Liu, claimed trial for drink driving. He agreed that he drank alcohol and drove. His blood alcohol level exceeded the drink driving limit. The sole issue was whether his blood sample had been taken by a registered medical practitioner.

2       Three witnesses (nurse, police officer and Health Sciences Authority analyst) gave testimony. The trial started on 15 August 2023 with a second day of trial on 22 January 2024. The trial was adjourned to 22 August 2024 for the doctor, who had been on maternity leave, to give evidence.

3       The Accused pleaded guilty on 22 August 2024, which was about one year after the trial had started.

4       The sentence was as follows:

Defence’s

Sentencing Position

Prosecution’s

Sentencing Position

Court

Not more than 8 days’ to 3 weeks’ imprisonment

+

Fine of $5,000 to $6,000

+

Driving disqualification of 5 years

4 to 5 weeks’ imprisonment

+

Fine of $5,000 to $6,000

+

Driving disqualification of 5 years

6 weeks’ imprisonment

+

Fine of $5,000 i/d 25 days

+

Driving disqualification of 5 years



 

5       Driving is a privilege — that privilege was abused when the Accused drank and drove. And the sentence has to reflect that he is a repeat offender.

6       The Accused is serving his sentence. I set out my reasons.

Charge

7       The Accused faced one charge under s 67(1)(b) punishable under s 67(1) read with s 67(2)(b) of the Road Traffic Act 1961 (“the Act”):

NAME: ZHONG LIU

GENDER/ AGE : MALE / 49 YEARS OLD

NATIONALITY : SINGAPOREAN

are charged that on 23 April 2022 at or about 1.40 a.m., along South Canal Road towards the direction North Canal Road, Singapore, when driving motorcar, SKE9897M, did have so much alcohol in your body that the proportion of it in your blood, to wit, not less than 81 milligrams of alcohol in 100 millilitres of blood, exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood and you have thereby committed an offence under Section 67(1)(b) of the Road Traffic Act 1961.

And further, that you, before the commission of the said offence, has been convicted on an earlier occasion, that is to say that you, on 27 August 2018 had been convicted for an offence of Drink Driving under Section 67(1)(b) of the Road Traffic Act, Chapter 276 (DAC/906381/2018) in Subordinate Court of Singapore; which conviction has not been set aside, and you shall thereby be liable for punishment under Section 67(1) read with Section 67(2)(b) RTA 1961.

Statement of Facts

8       The Accused is Zhong Liu, a 51-year-old male Singaporean.[note: 1]

9       The complainant is one SGT(2) Nurul Aqilah Binte Azmi, a Traffic Police officer.[note: 2]

10     At the material time, he was the owner and driver of motor car bearing vehicle registration number SKE 9897 M (“his motor car”).[note: 3]

11     On 23 April 2022, at or about 1.40am, the Accused was driving his motor car along South Canal Road towards the direction of North Canal Road. He was stopped for checks by the complainant at a roadblock along South Canal Road towards the direction of North Canal Road.[note: 4]

12     The complainant observed that the Accused reeked of alcohol. She proceeded to administer a breathalyzer test on the Accused. The result showed ‘Fail’. The Accused was thus arrested for driving under the influence of alcohol.[note: 5]

13     He was escorted to the Traffic Police Headquarters for the Breath Analyzing Device (BAD) test. However, he was rejected by the medical officer as he had just returned from the United States of America just two days before his arrest. He was then escorted to Changi General Hospital (CGH) for a blood alcohol test.[note: 6]

14     On 23 April 2022 at about 2.32am, at CGH, SS Muhammad Norsiddiq Ibrahim administered a warning to the Accused under section 70(5) of the Road Traffic Act 1961 (“the Act”). The Accused consented to a blood sample being taken from him.[note: 7]

15     On 23 April 2022, at about 3.57am, at CGH, a blood sample was taken from the Accused.[note: 8]

16     Leong Hsiao Tung, an Analyst with the Analytical Toxicology Laboratory of the Health Sciences Authority, released a report dated 6 May 2022 (Lab Report No 2206925-TX-001) that stated that the proportion of alcohol in the Accused’s blood was 81 milligrammes (mg) of alcohol in every 100 millilitres (ml) of blood. The prescribed limit is 80mg of alcohol in every 100ml of blood. The Accused’s blood alcohol level thus exceeded the prescribed limit.[note: 9]

17     The Accused admitted that, on 22 April 2022, he started drinking with his friend at a pub located at Boat Quay since about 8pm. Sometime after midnight on 23 April 2022, the Accused had then left the pub with a friend, whom he had intended to send home in his motor car. While driving along South Canal Road towards the direction of North Canal Road, he was stopped at the roadblock.[note: 10]

18     Prior to this incident, on 27 August 2018, the Accused was convicted of one count of drink driving under s 67(1)(b) of the Road Traffic Act, Chapter 276, in the State Courts of Singapore, vide DAC/906381/2018, which conviction has not been set aside to date.[note: 11]

19     The Accused has thereby committed an offence under s 67(1)(b) of the Act, and he is liable to be punished under s 67(1) read with s 67(2)(b) of the Act. He admits to the foregoing offence and stands charged accordingly.[note: 12]

Sentencing

Prescribed punishment

20     The prescribed punishment for s 67(1) of the Act (repeat offender) is:

(a)     a fine of not less than $5,000 and not more than $20,000 and to imprisonment for a term not exceeding 2 years, and

(b)     a driving disqualification for a period of not less than 5 years.

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751])

21     An offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment set by Parliament: Public Prosecutor v Kwong Kok Hing [2008] 2 SLR(R) 684 at [44]

(Benny Tan, Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore Issued Post-March 2013 and A Guide to Constructing Frameworks, (2018) 30 SAcLJ 1004 at [46]) (see also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2017; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3751]).

22     The court should ensure that the full spectrum of sentences enacted by Parliament is carefully explored in determining the appropriate sentence, viz. Completeness principle (Poh Boon Kiat v Public Prosecutor [2014] 4 SLR 892 at [60]).

Prosecution’s submissions on sentence

23     The Prosecution sought a sentence of 4 to 5 weeks’ imprisonment, with a fine of $5,000 to $6,000, and driving disqualification of 5 years with effect from the Accused’s release from prison.[note: 13]

Mitigation plea

24     The Defence sought a sentence of not more than 8 days’ to 3 weeks’ imprisonment, a fine of S$5,000 and driving disqualification of 5 years.[note: 14]

The Law

(1)   Legislative history of s 67 of the Act

25     The offence under s 67(1)(b) of the Act was enacted on 10 May 1996, following the passing of the Road Traffic (Amendment) Act 1996 (No. 11 of 1996) (“the 1996 Amendment Act”).

26     The 1996 Amendment Act effected two changes that are relevant for present purposes. First, it repealed s 70 of the Road Traffic Act (Cap 276, 1994 Rev Ed). Second, it re-enacted s 67 of the Act.

(See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

27     The present iteration of the offence under s 67 of the Act was enacted on 1 November 2019, following the passing of the Road Traffic (Amendment) Act 2019 (Act 27 of 2019) (the “2019 Amendment Act”). The reforms introduced through the 2019 Amendment Act were aimed at providing stronger deterrence against irresponsible driving and to tighten the regulatory regime against irresponsible driving: Singapore Parliamentary Debates, Official Report (8 July 2019) vol 94 (Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993 at [26]).

28     Specifically, in relation to the offence of drink driving, the Second Minister for Home Affairs, Mrs Josephine Teo explained as follows:

… Drivers who are drunk or drug-impaired show a blatant disregard for the safety of other road users. … Currently, such motorists typically face the same maximum penalties as other motorists who cause accidents. The judge may take into consideration that the offender was driving under influence during the sentencing itself. But it would be clearer to have our intentions codified in law. In fact, our intention is for offenders driving under influence to face stiffer penalties to signal the aggravated seriousness of their actions.

…

… during the public engagement process, respondents felt that even a standalone driving under influence offence where no accident is caused, should attract higher penalties to better reflect its gravity.

We agree with this view. The consumption of alcohol or drugs already makes a motorist a danger to other road users. Section 67 in Clause 17 of the Bill will raise the penalties to about double the current levels. We will also raise the existing minimum DQ period to two years for first-time driving under influence offenders and five years for second-time driving under influence offenders. A lifelong disqualification will be imposed on third-time driving under influence offenders. [emphasis added]

(2)   Mandatory imprisonment for repeat drink driving

29     An imprisonment term is mandatory for second offenders under s 67(1) of the Act.

30     The first port of call was the Court of Criminal Appeal case of Public Prosecutor v Tan Teck Hin [1992] 1 SLR(R) 672 at [7]. The Court of Criminal Appeal stated that under s 67(1) of the Act, repeat offenders were subject “to both a minimum fine and a mandatory term of imprisonment” (emphasis added).

31     The High Court in Public Prosecutor v Lee Soon Lee Vincent [1998] 3 SLR(R) 84 at [38] agreed that a jail term was mandatory for second offenders under s 67(1) of the Act. In reaching this conclusion, the High Court considered the Road Traffic (Amendment) Bill 1990.

32     At the second reading of the Road Traffic (Amendment) Bill 1990, the Minister for Law and Home Affairs, Professor S. Jayakumar, said [Singapore Parliamentary Debates, Official Report (28 March 1990) vol. 55 at col 960]:

Sir, at present, a person driving under the influence of alcohol is liable to a fine not exceeding $1,000 or imprisonment not exceeding six months. Repeat offenders can be fined up to $2,000 or imprisoned for 12 months, or both. The amendments seek to enhance this penalty by increasing the fine and imposing mandatory imprisonment for repeat offenders. … For a repeat offender, the fine will be between $3,000 and $10,000, but this repeat offender will be subject to mandatory imprisonment, the period of which will not exceed 12 months. The court will decide on the period of imprisonment. [emphasis added]

33     The Sentencing Practice in the Subordinate Courts (3rd Edition: Vol II) at 1722 states as follows:

For repeat offenders, a sentence of imprisonment and fine is mandatory. [emphasis added]

34     Finally, the High Court in Lee Shin Nan v Public Prosecutor [2023] SGHC 354 at [53] referred to Lee Soon Lee Vincent and at [48(b)] stated that a jail term was mandatory for repeat offenders under s 67(1) of the Act.

(3)   Driving disqualification order

35     Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14] and Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [64].

36     The most important sentencing principles engaged in driving disqualification orders are to:

(a)      protect society, because disqualification orders are meant to prevent future harm that the offender may cause to the public, and to

(b)      deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

37     As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the “most satisfactory penalty for most motoring offences is disqualification” because a fine is paid once and then forgotten. A 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

38     Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Act.

Decision on sentence

39     Drink driving is irresponsible. A motorcar in the hands of a drunk driver is a potentially devastating weapon writ large – and needlessly so: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

40     For repeat drink driving, the applicable case is Lee Shin Nan.

Framework in Lee Shin Nan v Public Prosecutor

(1)   Starting sentence range

41     The court should first determine the sentence range for the offence based on the offender’s Alcohol Level Band as if the offender were a first-time offender, using the sentencing ranges set out in the framework in Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993, and then apply an uplift to the range of the fine and the disqualification period taking into account only the level of alcohol for the present conviction: Lee Shin Nan at [57(a)].

42     The starting ranges are as follows:

Level of alcohol

(μg per 100ml of breath)

Under the Rafael

Voltaire Framework

for first-time

offenders

The initial uplift

Indicative band

for repeat

offenders

36 – 54

Fine: $2,000 –$4,000

Disqualification: 24 – 30 months

Fine: $3,000 –$4,000

Disqualification: 36 months

Fine: $5,000 –

$8,000

Disqualification:

60 – 66 months

55 – 69

Fine: $4,000 –$6,000

Disqualification: 30 – 36 months

Fine: $4,000 –$5,000

Disqualification: 36 – 42

months

Fine: $8,000 –

$11,000

Disqualification:

66 – 78 months

70 – 89

Fine: $6,000 –$8,000

Disqualification: 36 – 48 months

Fine: $5,000 –$6,000

Disqualification: 42 – 48 months

Fine: $11,000 –

$14,000

Disqualification:

78 – 96 months

≥ 90

Fine: $8,000 –$10,000

Disqualification: 48 – 60 months (or longer)

Fine: $6,000 –$7,500

Disqualification: 48 – 60

months (or longer)

Fine: $14,000 –

$17,500

Disqualification:

96 –120 months (or longer)



43     Based on the Accused’s alcohol level, the applicable sentencing range (for a plead guilty case) is Band 1, viz. fine of $5,000 – $8,000 and driving disqualification of 60 – 66 months.

(2)   Adjustment on account of the repeated offending behaviour

44     At the second stage, the court should calibrate the provisional fine and disqualification period having regard to two factors:

(a) the actual quantity of alcohol within the applicable Alcohol Level Band; and

(b) the circumstances that pertain to the repetition of the offending behaviour: Lee Shin Nan at [64].

45     The first factor (actual quantity of alcohol) is obvious.

46     The circumstances pertaining to the repetition of the offence are also an important consideration because they constitute one of the primary factors for the higher sentence: Lee Shin Nan at [65].

47     In relation to the latter factor, it is appropriate to consider the following:

(a)     the interval between the previous conviction(s) and the present one. The longer the interval, the less this will weigh as a particularly aggravating factor;

(b)     the number of such offences. The more such offences, the more aggravating this will be;

(c)     whether there is a trend of increasing gravity of alcohol consumption and driving. If so, this will be a significant factor in enhancing the sentence; and

(d)     whether there is a trend of increasing danger posed to the public with each repeat offence. As with the previous factor, where this is the case, it may further increase the uplift: Lee Shin Nan at [66].

48     In provisionally calibrating the actual fine and disqualification, the court will begin with the range prescribed by the applicable Alcohol Level Band. But these are only guidelines and it is entirely open to the court to shift to a lower or higher band if both factors, namely the actual amount of alcohol involved and the considerations pertaining to the repetition, point that way: Lee Shin Nan at [67].

49     In the present case, amongst other things, I considered that:

(a)     The Accused’s alcohol level was low. His alcohol level of not less than 81 milligrams of alcohol in 100 millilitres of blood slightly exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood.[note: 15]

(b)     He had one previous conviction for drink driving.[note: 16]

(c)     The interval between the previous conviction (August 2018) and the present offence (April 2022) was about 3 years and 8 months.[note: 17]

(d)     On 23 April 2022, at or about 12.35am, the Accused had been driving his motor car along South Canal road towards the direction of North Canal Road. He was stopped for checks by Traffic Police officers at a roadblock along South Canal Road towards the direction of North Canal Road.[note: 18]

50     In the circumstances, the fine and disqualification should be pegged at the lower end of Band 1, viz. a fine of $5,000 and 5 years’ driving disqualification for all vehicle classes.

(3)   Adjustment to account for aggravating and mitigating circumstances

51     The court should next consider the aggravating and mitigating circumstances of the offence and the offender and make any further adjustments to the provisional assessment of the fine and disqualification period: Lee Shin Nan at [57(c)].

52     The factors pertaining to the offender or the particular offence include:

(a)     degree of danger posed to the public (such as the circumstances of driving, the road conditions, the state of traffic and the location);

(b)     distance travelled;

(c)     speed of driving;

(d)     manner of driving;

(e)     reasons for driving;

(f)     whether the offender has pleaded guilty and/or shown remorse;

(g)     any other relevant antecedents not yet considered: Lee Shin Nan at [69].

53     First, I took into consideration the fact that the Accused had left the pub with a friend, whom he had intended to send home in his motor car, viz. as a passenger in his car.

54     The distance travelled was from Boat Quay to South Canal Road before he had been stopped at the roadblock.

55      Guilty plea. For the Sentencing Advisory Panel Guidelines for Guilty Pleas, as the Accused only pleaded guilty after the first day of trial, the applicable sentencing discount to be considered was up to a maximum of 5%.

56     In the present case, the Prosecution had already completed its trial preparation.[note: 19] The trial started on 15 August 2023 with a second day of trial on 22 January 2024. The Accused pleaded guilty on 22 August 2024, i.e. about one year after the trial had started.

57     That said, given that his plea of guilt saved some time and resources, he was afforded a sentencing discount of less than 5%.[note: 20]

58      Antecedents. The Accused’s driving record was not unblemished. Apart from his drink driving antecedent, he had 8 composition fines for speeding. He had composition fines for failing to conform to the red light, careless driving and failing to stop after an accident.

59     An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Haleem Bathusa bin Abdul Rahim v Public Prosecutor [2023] SGHC 41 at [59] and Public Prosecutor v Cheng Chang Tong [2023] SGHC 119 at [60].

(See also Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [56]-[60])

60     In the present case, I placed little to no weight on his compounded offences.

61      Cooperation with the authorities. I gave due weight to the Accused’s cooperation with the authorities: Public Prosecutor v Siew Boon Loong [2005] 1 SLR(R) 611 at [16]-[18].

62     In the circumstances, the fine and disqualification at the lower end of Band 1, viz. a fine of $5,000 and 5 years’ driving disqualification for all vehicle classes were left unchanged.

(4)   Final adjustment

63     The court should separately consider what term of imprisonment is appropriate having regard to all the circumstances. A term of imprisonment is mandatory for repeat offenders and arises from the parliamentary intent to deter recalcitrant drink driving and to prevent accidents, injury and death that can needlessly arise from drink driving: Lee Shin Nan at [70].

64     As such, its length will be determined primarily by the need for deterrence (both general and specific) and the need to punish especially culpable behaviour (see Singapore Parliamentary Debates, Official Report (28 March 1990) vol 55 at cols 960–961, 964–965 and 974 (Prof S. Jayakumar (Minister for Home Affairs), Dr Arthur Beng Kian Lam, Mr Chng Hee Kok); Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423 at [14]): Lee Shin Nan at [70].

65     Where the aggravating factors considered at the previous stage warrant a custodial term, they should be considered again at this stage when assessing the term of imprisonment. Such factors include:

(a)     the manner and circumstances of driving and road conditions;

(b)     the nature and number of relevant antecedents;

(c)     the recency of antecedents; and

(d)     the actual and potential danger posed to others.

66     These appear to be the key factors that are relevant to deterrence (both general and specific) and to why imprisonment was made mandatory for this class of offenders: Lee Shin Nan at [70].

67     At this stage of the analysis, when considering the term of imprisonment, the court should categorise the offence in overall terms having regard to its overall gravity and the nature and all the circumstances of the offending and reoffending behaviour into three broad classes with the following indicative sentencing bands (Lee Shin Nan at [71]):

Class

Indicative Sentencing Band

Serious

1 – 6 months’ imprisonment

More Serious

6 – 12 months’ imprisonment

Most Serious

12 – 24 months’ imprisonment



68     Generally, if zero to two of the factors identified in Lee Shin Nan at [70] are present and operating at a relatively low level, the offence would fall into the first sentencing band, that is, the classification of a “serious” case. If there are two to three factors (or if there are fewer but these operate at a more pronounced level), the “more serious” sentencing band would apply. And if all factors are present (or if there are fewer factors but most of them are operating at a pronounced level), the offence would fall into the “most serious” sentencing band: Lee Shin Nan at [72].

69     The sentencing court should then take a final look at the sentence to assess whether the fine and disqualification order need to be adjusted, whether there is a basis and need to consider invoking the power to further enhance the punishment under s 67A, and whether the overall punishment is proportional and condign: Lee Shin Nan at [73].

70     In sum, the court will finally calibrate the appropriate imprisonment term having regard in particular to the need for deterrence and then finally review the sentence as a whole: Lee Shin Nan at [57(d)].

71     In Lee Shin Nan, the interval between the previous conviction (April 2012) and offence in question (June 2022) was more than 10 years and the offender had two previous convictions for drink driving. The initial indicative custodial sentence was 12 weeks’ imprisonment before being moderated downwards to 8 weeks’ imprisonment, after taking into account the long lapse of more than 10 years between the conviction in question and his previous conviction (Lee Shin Nan at [16] and [100].

72     The reason given by the offender in Lee Shin Nan for driving his car a short distance was that he had to make way for a car which he was blocking (Lee Shin Nan at [97]-[98]).

73     Our present case falls under the “serious” category. Amongst other things, I considered that the interval between the previous conviction (August 2018) and the present offence (April 2022) was about 3 years and 8 months (as compared to more than 10 years in Lee Shin Nan), the Accused had one previous conviction for drink driving, and he had left the pub with a friend, whom he had intended to send home in his motor car.

74     The Accused pleaded guilty about 1 year after the trial had started, and the Prosecution had already completed its trial preparation.[note: 21] That said, given that his plea of guilt saved some time and resources, he was afforded a sentencing discount of less than 5%.

75     The Accused’s alcohol level of not less than 81 milligrams of alcohol in 100 millilitres of blood slightly exceeded the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood.[note: 22]

76     All things considered, I was of the view that the term of imprisonment ought to be in the lower end of the sentencing range for a “serious” case, viz. about 6 to 7 weeks’ imprisonment.

77      Proportionality Principle. I kept in mind the proportionality principle in sentencing (Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [30]). Under the proportionality principle, the sentence to be imposed must not only bear a reasonable proportion to the maximum prescribed penalty, but also to the gravity of the offence committed (Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, Second Ed, 2019) at [06.091]-[06.093]).

78      Sentence. All told, in the round, I sentenced the Accused to 6 weeks’ imprisonment, a fine of $5,000 in default 25 days’ imprisonment and 5 years’ driving disqualification for all vehicle classes.

Conclusion

79     The Accused was sentenced to 6 weeks’ imprisonment, a fine of $5,000 in default 25 days’ imprisonment and 5 years’ driving disqualification for all vehicle classes.

80     I was aware that my custodial sentence of 6 weeks’ imprisonment was higher than that sought by the Prosecution (viz. 4 to 5 weeks’ imprisonment). Ultimately, sentencing lies exclusively within the court’s prerogative: Saravanan Kuppusamy v Public Prosecutor [2016] 5 SLR 88 at [6]-[8], Janardana Jayasankarr v Public Prosecutor [2016] 4 SLR 1288 at [12] and CRH v Public Prosecutor [2024] SGCA 29 at [17(c)].

81     Where the penalty prescribed for an offence extends across a range, the question of where the offence falls within that range is squarely for the court’s determination. Therefore, while the Prosecution and Defence are expected to assist the court in this task, it is ultimately for the court to assess and determine what sentence would be just in the light of all the circumstances before it.

82     Just as the Defence’s submissions on sentence is not necessarily the lower limit of the sentence that a court may impose, the Prosecution’s submissions on sentence is not, and should not be regarded as, the upper limit of the sentence that may be meted out: Janardana Jayasankarr at [12].

83     I am grateful for the hard work and submissions of both sides.

[note: 1]SOF at [1].

[note: 2]SOF at [2].

[note: 3]SOF at [3].

[note: 4]SOF at [4].

[note: 5]SOF at [5].

[note: 6]SOF at [6].

[note: 7]SOF at [7].

[note: 8]SOF at [8].

[note: 9]SOF at [9].

[note: 10]SOF at [10].

[note: 11]SOF at [11].

[note: 12]SOF at [12].

[note: 13]Prosecution’s Address on Sentence at [1].

[note: 14]Mitigation Plea at [4].

[note: 15]SOF at [9].

[note: 16]SOF at [11].

[note: 17]SOF at [11].

[note: 18]SOF at [10].

[note: 19]Prosecution’s Address on Sentence at [4(c)].

[note: 20]Sentencing Advisory Panel Guidelines on Reduction in Sentences for Guilty Pleas at [9].

[note: 21]Prosecution’s Address on Sentence at [4(c)].

[note: 22]SOF at [9].

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Public Prosecutor v Lim Pang Boon Adrian Michael
[2024] SGMC 64

Case Number:Magistrate Arrest Court Nos. 900787 of 2022 and others, Magistrate's Appeals No. 9152 of 2024-01
Decision Date:06 September 2024
Tribunal/Court:Magistrate's Court
Coram: Ow Yong Tuck Leong
Counsel Name(s): DPP Eric Hu (Attorney-General's Chambers) for the Public Prosecutor; Mr Mohamed Arshad (Fernandez LLC) for the accused
Parties: Public Prosecutor — Lim Pang Boon Adrian Michael

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9152/2024/01.]

6 September 2024

District Judge Ow Yong Tuck Leong:

1       The accused, Lim Pang Boon Adrian Michael, a 48-year-old male, pleaded guilty to three proceeded charges and consented to one other charge being taken into consideration (“TIC”) for sentencing.

2       The three proceeded charges are:

(a)     First Charge MAC-900787-2022

… are charged that, you, on 9 June 2021 at or about 7.28 p.m. at (redacted) Building located at (redacted address), did commit criminal trespass, to wit, by entering into a female toilet cubicle at (redacted) of the said Building with intent to commit an offence of voyeurism, and you have thereby committed an offence punishable under Section 447 of the Penal Code (Chapter 224, 2008 Revised Edition).

(b)     Second Charge MAC-900788-2022

… are charged that you, on 9 June 2021 at or about 7.46 p.m. at the female toilet of (redacted) of (redacted) Building located at (redacted address), did attempt to use your mobile phone to record [(redacted) victim] doing a private act, to wit, relieving herself in the toilet, without her consent, knowing that she did not consent to you recording the act, and you have thereby committed an offence under Section 377BB(3) punishable under Section 377BB(7) read with Section 512(1) of the Penal Code (Cap 224, 2008 Rev Ed).

(c)     Third Charge MAC-900789-2022

… are charged that you, on 9 June 2021, at or about 7.56 p.m., at the basement carpark located at No. 105 Cecil Street, ‘The Octagon’ building, Singapore 069534, did cause hurt to one [(redacted) complainant] by doing an act so rashly as to endanger the personal safety of others, to wit, by driving your vehicle, a White Mercedes Benz bearing registration number SMP5866Y, towards the said complainant and hitting her on her right leg, and you have thereby committed an offence punishable under Section 337(a) of the Penal Code (Chapter 224, 2008 Revised Edition).

3       The TIC charge is:

MAC-900790-2022

… are charged that you, on 9 June 2021, at or about 7.56 p.m., at basement carpark located at No. 105 Cecil Street, The Octagon, Singapore 069534, did act so rashly as to endanger the personal safety of others, to wit, by driving your vehicle, a White Mercedes Benz bearing registration number SMP5866Y, towards one Muhammad Salahuddin Bin Shahibullah causing him to jump out of the way to avoid being hit by your vehicle, and you have thereby committed an offence punishable under Section 336(a) of the Penal Code (Chapter 224, 2008 Revised Edition).

4       I sentenced the accused to one month and three weeks’ imprisonment. The accused, being dissatisfied with the sentence has filed a notice of appeal against sentence. He is on bail pending the appeal. These are the grounds for the sentence imposed.

Statement of Facts

5       The accused admitted without qualification to the Statement of Facts (“SOF”) tendered by the Prosecution. I set out the SOF below:

1.    The accused is Lim Pang Boon Adrian Michael, Male, 48 years old, NRIC No: Sxxxx603D, Singapore Citizen. At the material time, he was working as a private hire car driver.

2.    The victim is (redacted), female, 32 years old, a Singapore Citizen.

3.    The complainant is (redacted), female, 38 years old, a Singapore Citizen.

4.    On 9 June 2021, at or about 8.47 p.m., the complainant called the Police stating: “earlier at about 7.30 pm to 8pm I saw a male Chinese inside the female toilet. He drove off in a car SMP5866Y. I am at the security control room to view the CCTV. I am scared that he might be still loitering in the building. I will wait for the police”. The incident location given is (redacted) Building.

5.    On 9 June 2021, at or about 7.28 p.m., the accused entered (redacted) Building located at (redacted address). The accused then went up to (redacted) of the building before going straight into the female toilet. He then entered the centre cubicle and locked the door. He admitted to the Police that he waited in the cubicle for any female to walk into the adjacent cubicle(s) so that he could take a photo of them while they were relieving themselves. He decided to target that toilet because he knew that there would be ladies frequenting a dating agency on that level.

6.    At or about 7.46 p.m., the victim left her office and entered the female toilet and had used the last cubicle. She was relieving herself, which was a private act. While relieving herself, the victim looked up and saw that there was a mobile phone with its camera facing downwards over the top of the cubicle wall from the adjacent toilet cubicle.

7.    Upon seeing the mobile phone, she was alarmed and distressed. She immediately left the toilet and went back to her office to seek assistance from the complainant. Together with the complainant, they went back to the female toilet. However, there was no one inside the adjacent toilet cubicle. Both the victim and the complainant then heard that there was someone washing hands inside the male toilet.

8.    In actual fact, the accused was in the adjacent toilet cubicle in the female toilet at the material time. He committed criminal trespass by entering a female toilet cubicle of (redacted) Building with intent to commit an offence of voyeurism, i.e., to take voyeuristic images of women relieving themselves in the toilet. He has committed an offence punishable under Section 447 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (MAC-900787-2022). He admitted to the Police that he went to the cubicle because he had an urge that day to take photographs of women using the toilet and relieving themselves. The victim was in the toilet cubicle to his right. He peeked over the top of the cubicle wall and saw her seated on the toilet bowl. He also saw her exposed buttocks.

9.    The accused then used his mobile phone and switched on the camera function and intended to use the phone to take photographs of the victim’s naked buttocks and of her relieving herself. He stretched his hand over the cubicle wall while holding the phone and tilted the phone with the camera facing downwards towards the victim. He knew that the victim did not and would not consent to him using his phone to take photographs of her naked buttocks and of her relieving herself. He tried to take a photograph of the victim. However, before he could do so, the victim looked up and saw the phone. Hence, he quickly retracted his hand with the phone. He thus did not manage to take a photograph of her. After the victim left the female toilet, he went to the male toilet. He was washing his hands as he heard two females calling him to come out from the male toilet.

10.    When the accused stepped out of the male toilet, the complainant and the victim confronted him and asked him to show his photo gallery on his phone, but he refused. The accused then took off and ran down the staircase of the building and the complainant and the victim gave chase. The victim then went down to Level 1 to alert the building security officer.

11.    The accused fled via the rear exit towards ‘The Octagon’ building located at No. 105 Cecil Street, Singapore 069534. Both the victim and the complainant continued to give chase. Upon arrival at Basement 1 carpark of ‘The Octagon’ building, the accused went into his car, which was a white Mercedes Benz vehicle bearing registration number SMP5866Y. He started his car engine and was about to drive off from the parking lot.

12.    However, the complainant stood in front of the accused’s vehicle in a bid to prevent him from leaving. Despite that, the accused continued to drive his vehicle towards the complainant and the vehicle hit her on her right leg. Despite this, the accused did not stop, and the car continued to move forward. As a result, the complainant’s body was pushed along the front of the car and the car hit her left leg as well. The complainant attempted to stop the accused by opening the driver’s door. However, the accused continued to drive forward and reached his hand out of the car to close the driver’s door. The accused caused hurt to the complainant by doing an act so rashly as to endanger the personal safety of others and he has committed an offence punishable under Section 337(a) of the Penal Code (MAC-900789-2022).

13.    The accused then drove his vehicle off by dashing through the parking barrier, breaking it before speeding off from the scene. The security officer, one Muhammad Salahuddin Bin Shahibulla, had to jump out of the way to avoid being hit by the car. The events stated above at [12]-[13] were captured on CCTV footage.

14.    The complainant later sought medical treatment at the Department of Emergency Medicine at Singapore General Hospital at about 4.50 p.m. on 10 June 2021. The victim had sustained an 8 x 3 cm ovoid irregular bruise on the right lateral upper thigh, 1 x 1 cm round bruise on the left upper lateral thigh, 3 x 2 cm irregular bruise over the right-hand knuckles and neck sprain. She was discharged and granted 5 days of medical leave from 10 June 2021 to 14 June 2021.

15.    The accused attempted to using his mobile phone with the intention of recording the victim doing a private act, i.e., relieving herself, without her consent, knowing that she did not consent to him recording the act. There were no photographs or videos taken of the victim found in the accused’s phone, after he was arrested. He has committed an offence under Section 377BB(3) punishable under Section 377BB(7) read with Section 512(1) of the Penal Code (MAC-900788-2022).

16.    The following properties were seized from the accused:

a.    One black Lenovo laptop without battery, and charger;

b.    One Samsung Galaxy J6 phone with black phone casing; and

c.    One white Bermudas and one blue T-shirt.

17.    The accused stands charged accordingly.

Antecedents

6       The accused has no record of any previous conviction.

Prosecution’s Address on Sentence

7       The Prosecution submitted that the accused had surreptitiously trespassed into a cubicle in a female toilet. The accused saw the victim relieve herself and attempted to take a photo of her relieving herself. When confronted, the accused took flight and drove his car in a rash manner which caused hurt to the complainant. The Prosecution submitted that a global sentence of at least two months’ imprisonment was appropriate, comprising the following individual sentences for the three proceeded charges:

(a)     At least two weeks’ imprisonment for the First Charge (concurrent). The position was supported by two reported precedents, PP v Ang Wei Sheng [2016] SGMC 28 (“Ang Wei Sheng”), and PP v Ong Wai Hoong [2011] SGDC 251 (“Ong Wai Hoong”);

(b)     At least one month’s imprisonment for the Second Charge (consecutive), referring to the offences in Nicholas Tan Siew Chye v PP [2023] 4 SLR 1223 (“Nicholas Tan”); and

(c)     At least one month’s imprisonment for the Third Charge (consecutive). The Prosecution highlighted the following precedents for the court’s consideration, PP v Bibianna Lim Poh Suan [2020] SGMC 14 (“Bibianna”), PP v Mazlan bin Ujod (“Mazlan”) (SC-902455-2021, unreported), PP v Kesavan Pillai Govindan [2017] SGHC 44 (“Kesavan”), and PP v Ng Poh Kok [2009] SGDC 376 (“Ng Poh Kok”).

Mitigation

8       The Defence recommended a global sentence of three weeks’ imprisonment. The Defence submitted that the accused had pleaded guilty. He was a first-time offender. The accused suffers from voyeuristic disorder, although there was no contributory link between the disorder and the accused’s actions on 9 June 2021, his actions were a depiction of his voyeuristic tendency. The accused has not reoffended for a period of more than three years. The accused compensated the following parties:

(a)     $2,500 to the (redacted) victim;

(b)     $2,500 to the (redacted) complainant and offered to reimburse her medical expenses;

(c)     $1,000 to Mr Muhammad Salahuddin Bin Shahibullah; and

(d)     $1,000 to the management of the (redacted) Building.

9       In relation to the First Charge, Defence relied on PP v Jonathan Chua Wei Cong [2023] SGMC 101 (“Jonathan Chua”). The offender claimed trial to one charge (s 509 of the Penal Code) of insulting the modesty of the victim by moving his phone over the top of the door of the cubicle she was showering in and one charge (s 447 of the Penal Code) of committing criminal trespass to enter the female toilet.

10     The Defence submitted that the accused’s trespass was similar to the offender in Jonathan Chua, where the offender was sentenced to two weeks’ imprisonment after claiming trial. However, given the accused’s plea of guilt, the restitution made, as well as the fact that the accused never actually recorded a video of the victim showering, the Defence submitted a sentence of one week’s imprisonment for the First Charge (concurrent).

11     In relation to the Second Charge, the Defence agreed that Nicholas Tan was instructive. The Defence submitted that the first offence in Nicholas Tan was more useful for the court to consider as the offender had recorded an upskirt video of the victim with her private part covered. The offender deleted the video from his phone. The offender was sentenced to one week’s imprisonment. The Defence submitted a similar sentence of one week’s imprisonment for the Second Charge (consecutive).

12     As to the Third Charge, the Defence highlighted that the physical injuries suffered by the victim in the unreported case of Mazlan appeared to be more serious, the victim was given a longer hospitalisation leave, the offender’s car had hit the victim three times, the accused compensated the victim and also offered to reimburse her medical expenses. For the aforesaid reasons, as well as, on account of the totality principle, the Defence submitted a sentence of two weeks’ imprisonment for the Third Charge (consecutive).

Court’s Decision

13     First Charge - the prescribed punishment for the criminal trespass offence under s 447 of the Penal Code (Chapter 224, 2008 Revised Edition) (“PC”) is imprisonment for a term which may extend to three months, or with fine which may extend to $1,500, or with both.

14     In determining the appropriate sentence to be imposed for the First Charge, I considered the following factors:

(a)     The purpose of the intrusion was to commit an offence of voyeurism. The offence was of moderate gravity taking into account the intrinsic seriousness of the offence and the maximum punishment under s 377BB(7) PC.

(b)     The offence was premeditated and the period of intrusion was not insignificant. The accused purposely chose the female toilet in a specific building based on his knowledge that there would be females frequenting a dating agency on that floor. The accused hid in the centre cubicle to wait for a female to use the adjacent toilets. The victim entered the toilet about 15 minutes later (see [5] and [6] of SOF). The accused peeked over the top of the cubicle wall to see the victim before stretching his mobile phone over the cubicle wall towards the victim (see [8] and [9] of SOF).

15     In my view, the custodial threshold was clearly crossed. An appropriate sentence would be about three weeks’ imprisonment on the present facts if the accused had claimed trial. I considered the mitigating factors that the accused was remorseful, untraced, co-operated with the authorities and compensated the victim. After applying a reduction of 30% (Stage 1) under the Sentencing Advisory Panel Guidelines on Reduction in Sentences for Guilty Pleas (“PG Guidelines”), I sentenced the accused to two weeks’ imprisonment.

16     The sentence would not be inconsistent with the outcomes in PP v Ang Wei Sheng [2016] SGMC 28 (“Ang Wei Sheng”) and PP v Ong Wai Hoong [2011] SGDC 251 (“Ong Wai Hoong”):

(a)     In Ang Wei Sheng, the offender, a first offender who had pleaded guilty, was sentenced to four weeks’ imprisonment for s 447 PC charge for trespass into the female shower room of a swimming complex to video women showering. The court considered that it was not a one-off offence but part of a pattern of criminality as there were two similar s 447 PC charges pertaining to two other occasions taken into consideration in sentencing (see Ang Wei Sheng at [41] to [42]). The appeal lapsed.

(b)     In Ong Wai Hoong, the offender with two previous similar convictions under s 447 PC charge, claimed trial to one count of s 447 PC charge and was sentenced to six weeks’ imprisonment. The appeal against conviction and sentence was dismissed.

17     In my view, the present case can be distinguished from the pattern of criminality or repeat offending found in Ang Wei Sheng and Ong Wai Hoong, where a longer imprisonment sentence was justified, taking into account the need for general and specific deterrence.

18     I did not accept the Defence’s submission relying on Jonathan Chua to impose a lower sentence. In my view, there was less premeditation and less culpability in Jonathan Chua for the criminal trespass charge. The offender possibly formed the intention to commit the offence when he first walked past the female toilet and knew that someone was showering inside (see Jonathan Chua at [163(c)]). The intrusion was briefer in Jonathan Chua. When the victim in Jonathan Chua heard the main toilet door opening, she turned to face the shower cubicle door, and in less than two seconds, she saw the mobile phone coming up over the cubicle door and shouted out. Upon her shouting, the mobile phone immediately came down (see Jonathan Chua at [21] and [22]). The appeal against conviction and sentence has since been dismissed. Given the differences in culpability between the two offenders, I am of the view that the sentence of two weeks’ imprisonment was appropriate on the present facts although the offender in Jonathon Chua had claimed trial.

19     Both parties referred the court to Nicholas Tan, to determine the appropriate sentence to be imposed for the Second Charge. The sentencing matrix in Nicholas Tan applies the full sentencing range punishable under s 377BB(7) PC. The maximum custodial punishment under s 377BB(7) PC for the voyeurism offence is two years’ imprisonment. The Prosecution submitted for a sentence of at least one month’s imprisonment while the Defence recommended one week’s imprisonment. The Second Charge and the SOF referred to S 512(1) PC, which does not apply in the present case as the voyeurism offence is not punishable by death or imprisonment for life. The correct reference should be s 512(2) PC where the punishment for attempted voyeurism is the same as is prescribed for voyeurism. It did not matter that the wrong provision was referred to in the present case as I applied the sentencing framework in Nicholas Tan.

20     In Nicholas Tan, the High Court formulated a sentencing framework applicable to the offence under s 377BB(4) PC punishable under s 377BB(7) PC framework as follows:

(a)     At Step 1, the court considers the offence-specific factors to identify the level of harm caused by the offence and the level of culpability of the offender.

(b)     At Steps 2 and 3, the court identifies the applicable sentencing range in the sentencing matrix before identifying the starting point within that range:

Sentencing Matrix

 

Harm

 

Low

Moderate

High

Culpability

Low

Fine or up to 4 months’ imprisonment

4 to 8 months’ imprisonment

8 to 12 months’ imprisonment with caning

 

Moderate

4 to 8 months’ imprisonment

8 to 12 months’ imprisonment with caning

12 to 18 months’ imprisonment with caning

 

High

8 to 12 months’ imprisonment with caning

12 to 18 months’ imprisonment with caning

18 to 24 months’ imprisonment with caning



(c)     At Step 4, the court considers the offender-specific aggravating and mitigating factors.

(d)     At Step 5, the court makes further adjustments in keeping with the totality principle where the offender is convicted of multiple charges.

21     The High Court observed that there is no reason why the same sentencing framework should not apply to the other offences in s 377BB PC punishable under s 377BB(7) PC (see Nicholas Tan at [62]).

22     I applied Steps 1 to 4 of the sentencing framework in the present case. At Step 1 of the sentencing framework, as to harm, there was invasion of the victim’s privacy as the accused saw her from a top-down perspective, seated on the toilet bowl and saw the victim partially undressed with her buttocks exposed. The accused intended to use his mobile phone camera to take photographs of the victim’s naked buttocks and of her relieving herself (see [8] and [9] of SOF). The victim saw the accused’s mobile phone. The victim was aware that she had been a victim of voyeurism, and this caused her to suffer emotional distress (see [7] of SOF). Such harm brings both general and specific deterrence to the fore (see Nicholas Tan at [44]). As to culpability, the accused knew that he did not have consent from the victim. While the accused’s modus operandi was unsophisticated, the commission of the offence involved a degree of furtiveness, planning and premeditation on the part of the accused (see [5] of SOF), which warrants the imposition of a deterrent sentence (see Nicholas Tan at [46]). While no photos of the victim were taken by the accused, an offender who intended to record the victim (but failed to do so) is more culpable than an offender who merely intended to observe the victim (see Nicholas Tan at [72]).

23     At Steps 2 and 3 of the sentencing framework, I placed the offence in the low harm and low culpability category. The applicable indicative sentencing range is a fine or up to four months’ imprisonment, on the basis of a first offender who is convicted after trial. A starting point of about five weeks’ imprisonment would be appropriate, considering the offence-specific factors above. At Step 4 of the sentencing framework, I considered the mitigating factors in [15] above. After applying a reduction of 30% (Stage 1) under the PG Guidelines, I sentenced the accused to three weeks’ imprisonment.

24     I disagreed with the Defence’s submission for a one week’s imprisonment based on the first offence in Nicholas Tan. In my view, the present case was more egregious than the first offence in Nicholas Tan. First, the accused saw the victim’s exposed buttocks compared to the offender in Nicholas Tan who saw the victim’s covered bottom. Second, the victim had partially undressed to relieve herself when she saw the accused’s phone. This would have exacerbated the level of distress she experienced from the invasion of privacy, causing her to feel more traumatised than the upskirt victim in Nicholas Tan. Third, the commission of the offence involved more planning and premeditation than in Nicholas Tan, where the offender had chanced upon the victim and followed her to take an upskirt video. A sentence of three weeks’ imprisonment was just and fair.

25     I did not accept the Defence’s submission to reduce the sentence on account of the accused’s voyeuristic disorder. The IMH clarification report dated 25 March 2024 stated that there was no contributory link to the offences and his ability to appreciate the nature of the offences was not impaired. The IMH report also said that the accused “was aware of the moral and wrongfulness of his actions. His actions were planned and coordinated. He purposefully chose to carry out his actions in the specific building, well aware of the secluded toilets. There was no loss of self-control and restraint.” Mitigating weight should only be given to psychiatric conditions if there exists a causal or contributory link (see Ng So Kuen Connie v PP [2003] 3 SLR(R) 178 at [58]).

26     Third Charge - the prescribed punishment for an offence under s 337(a) PC (causing hurt by a rash act which endangers human life or the personal safety of others) is imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

27     I considered the precedents for the s 337(a) PC offences referred to by the Prosecution for the Third Charge:

(a)     In Bibianna, the victim, the offender’s older brother, tried to stop the offender from driving off after a family altercation. The offender claimed trial to a s 337(a) PC charge under the “endanger human life” limb. The victim tried to open the car door and he knocked on the car window before standing in front of the car. The offender drove the car forward when the victim was standing in front of the car, causing him to take evasive action by jumping onto the bonnet of the car and roll off. The victim suffered tenderness over the right knee and he was prescribed oral analgesia (see Bibianna at [175]). The offender was untraced. The sentence of three weeks’ imprisonment and 12 months’ disqualification for all classes of vehicles was upheld on appeal.

(b)     In Ng Poh Kok, the offender pleaded guilty to a rash act under the “endanger human life” limb. The offender was driving the car with another person to collect duty unpaid cigarettes. The offender knocked down the victim, a customs officer. The victim suffered from tenderness over his chest and shoulder. He also had abrasions over his right elbow and one finger. The court considered the seriousness of the offence which involved causing hurt to a customs officer while driving rashly to escape from the law and sentenced the accused to nine months’ imprisonment (see Ng Poh Kok at [12]). The appeal against the sentence was dismissed.

(c)     In Mazlan, the offender was charged under the “endanger personal safety” limb. The victim was a pedestrian. She stood in front of the van to stop the offender from driving off because she thought he was drunk. The offender was in fact not drunk and told the victim that he was in a rush to leave (see [6] of Mazlan SOF). The van hit the victim who suffered a left knee contusion. The contusion was managed conservatively (see Mazlan at [7] of Mazlan SOF). The offender was sentenced to one month’s imprisonment and 12 months’ disqualification for all classes of vehicles. There was no appeal.

(d)     In Kesavan, the accused faced a charge under the “endanger personal safety” limb. The victim, a Certis Cisco auxiliary police officer, stood in front of the offender’s car to take down the licence plate number of the car so as to issue a summons for a parking offence. The offender drove off before the summons was issued. The car hit the victim. The victim suffered a left shin contusion and was prescribed oral analgesics for the pain and swelling (see Kesavan at [13]). The High Court found the offender had ample opportunity to realise that the victim was directly in front of his car, and it would have been dangerous to drive forward in such circumstances because of the high probability of injuring the victim. The offender did not care that the victim was in front of his car and obstructing his way (see Kesavan at [55] to [57]). The High Court allowed the Prosecution’s appeal against acquittal. The offender was sentenced to nine weeks’ imprisonment and 15 months’ disqualification for all classes of vehicles.

28     In my view, the factual matrix in the present case was closer to Kesavan. First, the accused faced a charge with the same degree of rashness under the “endanger personal safety” limb of s 337(a) PC. Second, the accused caused hurt while trying to evade the complainant after his wrongful activity was detected. Third, the injuries in both cases were managed conservatively.

29     In determining the appropriate sentence to be imposed for the Third Charge, I considered the following factors:

(a)     The accused exhibited a callous disregard for the safety of others. The complainant, like the victim in Kesavan, was standing in front of the car (see [12] of SOF). The accused would have known it would be dangerous to drive forward because of the high probability of injuring the complainant.

(b)     The complainant suffered bruises and a neck sprain (see [14] of SOF) and had flashbacks interrupting her sleep (see SGH Medical report dated 22 June 2021). In my view, the multiple contusions and interrupted sleep suffered by the complainant were just as serious if not more serious than the injuries suffered by the victims in Kesavan (left shin contusion) and Mazlan (left knee contusion) who was given a longer hospitalisation leave.

(c)     Similar to Kesavan, the accused had caused hurt after his wrongful activity was detected. The accused used his car as a weapon, to intimidate the complainant to move out of the way or risk suffering personal injury.

(d)     The accused did not stop after hitting the complainant. He then drove his vehicle off by dashing through the parking barrier, breaking it before speeding off from the scene. The security officer had to jump out of the way to avoid being hit by the car. There should be an uplift to the sentence to take into account the TIC charge of a similar nature (see PP v UI [2008] 4 SLR(R) 500 at [38]).

(e)     A longer sentence should be imposed in cases where offenders commit rash driving offences causing hurt to a police officer or an enforcement officer. The High Court has reiterated that “it is of vital importance to ensure that police and other officers who are at the frontline of law enforcement are adequately protected in the exercise of their duties. These officers frequently deal with unreasonable and uncooperative individuals and are often at the receiving end of verbal abuse and resistance, as well as retaliatory acts of force and aggression. The sentence of the court must therefore effectively convey the message that such actions are completely unacceptable.” (see Aw Soy Tee v PP [2020] SGHC 114 at [79]). A downward calibration of the sentence in Kesavan is appropriate where the victim is not an enforcement officer (see Bibianna at [192] and [218]).

30     An appropriate sentence would be about six weeks’ imprisonment on the present facts if the accused had claimed trial. I considered the mitigating factors in [15] above. After applying a reduction of 30% (Stage 1) under the PG Guidelines, I sentenced the accused to one month’s imprisonment. The lower sentence here would not be inconsistent with Kesavan as the victim was not an enforcement officer. I disagreed with the Defence’s submission to impose a lower sentence than in Mazlan as the accused was more culpable than the offender in Mazlan. The Prosecution did not seek any disqualification of the accused’s driving licence.

31     The court must order the sentences for at least two of the offences to run consecutively under s 307(1) of the Criminal Procedure Code 2010. I ordered the sentences for the Second Charge and the Third Charge to run consecutively, given that these are distinct offences committed against two separate victims. The global sentence of one month and three weeks’ imprisonment accords with the totality principle and the one-transaction rule. The sentence is not crushing and no further adjustment is required (see PP v Raveen Balakrishnan [2018] 5 SLR 799 at [52] and [73]).

Conclusion

32     The dominant sentencing position is general deterrence for the reasons given above. The sentence imposed is just and appropriate to send a clear message to other like-minded persons that such conduct is completely unacceptable.

"},{"tags":["Criminal Law – Offences - Sexual Penetration of Minor","Criminal Procedure and Sentencing – Sentencing – Sentencing Framework"],"date":"2024-08-27","court":"District Court","case-number":"DAC-901125-2020 & Anor, Magistrate's Appeal No. MA-9084-2024-01","title":"Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim","citation":"[2024] SGDC 221","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32084-SSP.xml","counsel":["DPP Joseph Gwee (Attorney-General's Chambers) for the Prosecution","Mr K Jayakumar Naidu (M/s Jay Law Corporation) for the Accused"],"timestamp":"2024-09-12T16:00:00Z[GMT]","coram":"Chay Yuen Fatt","html":"Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim

Public Prosecutor v Muhammad Mustaffa Kamal Bin Salim
[2024] SGDC 221

Case Number:DAC-901125-2020 & Anor, Magistrate's Appeal No. MA-9084-2024-01
Decision Date:27 August 2024
Tribunal/Court:District Court
Coram: Chay Yuen Fatt
Counsel Name(s): DPP Joseph Gwee (Attorney-General's Chambers) for the Prosecution; Mr K Jayakumar Naidu (M/s Jay Law Corporation) for the Accused
Parties: Public Prosecutor — Muhammad Mustaffa Kamal Bin Salim

Criminal Law – Offences - Sexual Penetration of Minor

Criminal Procedure and Sentencing – Sentencing – Sentencing Framework

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9084/2024/01.]

27 August 2024

District Judge Chay Yuen Fatt:

Introduction

1       The accused was a 34-year-old male Singaporean. He was represented by counsel. He faced two charges for offences of sexual penetration of a minor (“SPOM”) who was a girl below 14 years of age (“victim”). The accused denied committing the acts and claimed trial to the charges. He was 23 years old when he committed the said offences under s 376A(1)(a) and punishable under s 376A(3) and punishable under s 376A(3) of the Penal Code (Cap 224, Rev Ed 2008)(“Penal Code”). The first offence was committed when the victim was 12 years old. The second offence occurred when she was 13 years old. Two other similar charges were stood down at the commencement of the trial.

2       At the conclusion of the trial, the accused was convicted of both SPOM charges and sentenced to a total of 16 years' imprisonment and 10 strokes of the cane. The stood down charges were then withdrawn. I provided the parties with my brief reasons for the conviction and indicated that full grounds will be furnished if necessary. The accused filed an appeal against both the conviction and sentence. The sentence of imprisonment and caning has been stayed. The accused is on bail pending this appeal.

3       I now provide my full grounds for the conviction and sentence.

The Charges

4       For ease of reference, I set both SPOM charges in full as follows:

1st Charge (DAC-901125-2020)

You…are charged that you, sometime between mid-2013 and 20 October 2013, in vehicle bearing licence plate SJY2591Y, at a parking lot located at 255 Dairy Farm Road, Singapore, did penetrate with your penis the vagina of one victim (female / then 12 years old, DOB: xxx 2000), and you have thereby committed an offence punishable under Section 376A(1)(a) read with Section 376A(3) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

2nd Charge (DAC-901128-2020)

You…are charged that you, sometime between November 2013 and mid-2014, in vehicle bearing registration number SJY2591Y, Singapore, did penetrate with your penis the mouth of one victim (female / then 13 years old, DOB: xxx 2000), and you have thereby committed an offence punishable under Section 376A(1)(a) read with Section 376A(3) of the Penal Code, Chapter 224 (2008 Rev. Ed.).

Prosecution’s Case

5       The Prosecution’s case and its evidence, where material and relevant, are summarised from its submissions.[note: 1]

6       The Prosecution’s case is that the accused had committed both offences against the victim. The first offence involved penile-vaginal penetration and was committed sometime between mid-2013 and 20 October 2013 when the victim was only 12 years old. The offence was committed inside a car SJY 2591Y (“the car”) which was parked at the Heavy Vehicle Carpark located at 255 Diary Farm Road.

7       The second offence of penile-oral penetration or fellatio was committed between November 2013 and mid-2014 when the victim was 13 years old. The offence was committed whilst the accused was driving the car.

Undisputed facts

8       I set out the following facts that were not in dispute.

9       The victim[note: 2] was born on 21 October 2000. She was 12 years old at the time of the first offence in 2013 and 13 years old at the time of the second offence in 2014. It was not disputed that the accused was aware of her age at all material times. It was also not in dispute that there was at least a 10-year age gap between the accused and the victim.

10     The families of the accused and the victim became acquainted because the families were involved in the same multi-level marketing business called ‘4Life’. Both families met weekly and interacted with other 4Life business associates. That was how the accused got to know the victim. The respective families remained on good terms until around 2014 to 2015 when there was a fallout due to a business-related dispute. The families drifted apart thereafter.

11     The offences came to light only in 2018 in the course of a spat between the victim and the accused’s then fiancée, DW2 Erratiqah binte Erwan (“Erratiqah”). The spat took place on the social media platform Instagram (“IG”). The victim was using her younger sister’s IG account and there was an exchange of IG messages[note: 3] between her and Erratiqah. The victim’s mother[note: 4] had access to the victim’s sister’s IG account and found out that the victim had had sex with the accused.

12     The victim lodged a police report[note: 5] in respect of the offences on 15 November 2018. The victim was examined at KK Women’s and Children’s Hospital by PW1 Dr Yip Swee Lin (“Dr Yip”). Dr Yip prepared a medical report in relation to the examination which was tendered in evidence.[note: 6]

13     A statement was recorded from the accused by way of a Video Recorded Interview (“VRI”) on 19 November 2018 from 5.00pm to 6.02pm. The VRI was conducted by the investigation officer, PW6 ASP Liao Chengyu (“ASP Liao”), and ASP Muhammad Fadzridin Fadzil Bin Amir. The CD containing the VRI[note: 7] and the transcript[note: 8] were also tendered in evidence.

14     The police took photographs of (i) the car wherein the offences were committed, and (ii) the Heavy Vehicle Carpark at 255 Diary Farm Road where the car was parked at the time of the first offence. These photographs were admitted in evidence.[note: 9]

15     The car in question was a black Mercedes Benz E250 which was registered in the name of the accused’s sister, DW3 Haffiyenti Binte Salim (“Haffiyenti”).

The Defence

16     The accused elected to give evidence. His defence is summarised in the Defence’s closing submission.[note: 10] He denied being in any relationship with the victim.[note: 11] It was categorically put to the victim by the Defence that the accused was not in any relationship with the victim.[note: 12] He only went on family outings with her family but he did not go on dates with the victim alone. He did not drive the car with the victim alone.[note: 13] Therefore, he was never alone with the victim and did not have sexual relations with her in any form.

Findings and Reasons for Conviction

17     I set out below my findings and the reasons for convicting the accused on both SPOM charges.

Relevant Law

Elements of the SPOM charges

18     It was not in dispute that the essential elements of the SPOM charges comprise the actus reus and the mens rea:

(a)     the actus reus – the accused used his penis to penetrate the victim’s vagina (first charge) and mouth (second charge); and

(b)     the mens rea – (i) the accused intended the said acts and (ii) he knew that the victim was below 14 years of age.

19     If the actus reus is proved, there is no question that the mens rea in (b)(i) would naturally follow and therefore also be proved. The mens rea in (b)(ii), that he knew the victim’s age at all relevant times, was accepted by the accused.

Assessing credibility of victim

20     It is trite law that in a case of a sexual offence, in the absence of other corroborative evidence, the victim’s testimony must be “unusually convincing” in order to form the sole basis for a conviction: Public Prosecutor v GCK and another matter [2020] 1 SLR 486 (at [87]-[88]); AOF v Public Prosecutor [2012] 3 SLR 34 (“AOF”).

21     The Court of Appeal (“CA”) in AOF stated (at [111] – [115]):

111    It is well-established that in a case where no other evidence is available, a complainant’s testimony can constitute proof beyond reasonable doubt (see s 136 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”)) – but only when it is so “unusually convincing” as to overcome any doubts that might arise from the lack of corroboration (see generally the decision of this court in PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) d601 at [37]–[44] (“Liton”) and the Singapore High Court decision of XP v PP [2008] 4 SLR(R) 686 at [27]–[36] (“XP”)).

112    The need for “fine-tooth comb” scrutiny in so far as allegations of sexual abuse are concerned is particularly acute, “given both the ease with which allegations of sexual assault may be fabricated and the concomitant difficulty of rebutting such allegations” (see the Singapore High Court decision of Chng Yew Chin v PP [2006] 4 SLR(R) 124 at [33], cited with approval in Liton at [37]–[38]).

113    In XP, V K Rajah JA observed (at [31]) that the requirement that the alleged victim’s evidence ought to be “unusually convincing”:

… does nothing, however, to change the ultimate rule that the Prosecution must prove its case beyond a reasonable doubt, but it does suggest how the evidential Gordian knot may be untied if proof is to be found solely from the complainant’s testimony against the Appellant.

…

115    Moving from the level of scrutiny to the elements of what an unusually convincing testimony consists of, it is clear that a witness’s testimony may only be found to be “unusually convincing” by weighing the demeanour of the witness alongside both the internal and external consistencies found in the witness’ testimony.

[emphasis added]

22     A complainant’s testimony would be considered “unusually convincing” only if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused. A trial judge evaluates whether this standard is met by weighing the demeanour of the complainant alongside both the internal and external consistencies found in the complainant’s testimony: PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 at [39].

23     Further, when considering whether the complainant’s evidence is “unusually convincing”, the court must “assess the complainant’s testimony against that of the accused”, such that the complainant is found to be “unusually convincing” to the extent that “the court can safely say his account is to be unreservedly preferred over that of another”: XP v Public Prosecutor [2008] 4 SLR(R) 686 at [34].

24     For completeness, the Prosecution also referred to the High Court’s observations in PP v Tan En Jie Norvan [2022] SGHC 166 at [65]-[66] as follows:[note: 14]

(a)     the “unusually convincing” standard is the threshold for the complainant’s testimony to be preferred over the accused’s evidence where the case is one that boils down to one’s person’s words against another’s.

(b)     The emphasis is on the sufficiency of the complainant’s testimony, and the threshold would be met only if the testimony, when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused.

(c)     A witness’s testimony may only be found to be “unusually convincing” by weighing the demeanour of the witness alongside both the internal and external consistencies found in the witness’s testimony.

(d)     Finally, even if the witness’s testimony is found to be “unusually convincing”, it does not automatically lead to a guilty verdict and does not dispense with the need for the court to consider the other evidence and the factual circumstances peculiar to each case, as well as the need to assess the complainant’s testimony against that of the accused’s.

25     As to what constitutes corroborative evidence, the CA in AOF provided the following invaluable guidance at [173]:

It is settled law that where the evidence of the complainant is not “unusually convincing”, an accused’s conviction is unsafe unless there is some corroboration of the complainant’s story. This requirement was laid down in Federation of Malaya High Court decision of Public Prosecutor v Mardai [1950] MLJ 33 where Spencer-Wilkinson J declared (at 33), as follows:

Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story. It would be sufficient, in my view, if that corroboration consisted only of a subsequent complaint by complainant herself provided that the statement implicated the Appellant and was made at the first reasonable opportunity after the commission of the offence.

The EA did not, at its inception, provide a definition of corroboration and still does not do so. In Liton ([111] supra), this court (at [43]) preferred Spencer-Wilkinson J’s more liberal approach to corroboration (“liberal corroboration”) as opposed to the stricter traditional common law definition laid down in The King v Baskerville [1916] 2 KB 658 at 667 (“Baskerville”) of independent evidence implicating the Appellant in a material particular (“Baskerville corroboration”):

[I]t is clear that the Baskerville standard … does not apply in its strict form in Singapore since Yong CJ, in Tang Kin Seng ([37] supra), advocated a liberal approach in determining whether a particular piece of evidence can amount to corroboration. This is so, notwithstanding Yong CJ’s apparent allusion to the whole or part of the Baskerville standard in B v PP [2003] 1 SLR(R) 400 (at [27]); Lee Kwang Peng ([38] supra) at [71]; and Kwan Peng Hong ([37] supra) at [37] as being ‘essential’ in nature. In our view, to adopt a stringent definition of what constitutes corroborative evidence goes against the liberal approach which Yong CJ himself alluded to as a broad principle of law in the other cases. In Kwan Peng Hong (at [36]), Yong CJ held that our courts ‘have left behind a technical and inflexible approach to corroboration and its definition’ and alluded to similar pronouncements in Tang Kin Seng (at [53]–[68]) and Soh Yang Tick ([37] supra at [43]). The principle of law which emerges from these cases is that the local approach to locating corroborative evidence is liberal, thus ensuring that the trial judge has the necessary flexibility to treat relevant evidence as corroborative. What is important is the substance as well as the relevance of the evidence, and whether it is supportive or confirmative of the weak evidence which it is meant to corroborate.

(emphasis added)

Only Issue in Dispute

26     The accused denied having any sexual intercourse or sexual relations with the victim whatsoever. Therefore, the actus reus of the offences was the only material issue in dispute.

Victim was Unusually Convincing

27     The victim was already 21 years old and an adult when she took the stand as a prosecution witness to testify against the accused. She was currently a student at the Singapore Polytechnic. A shielding measure was provided for her to testify in court and in the presence of the accused, pursuant to s 281A of the Criminal Procedure Code 2010 (“CPC”).[note: 15]

28     I heard her testimony which was both internally and externally consistent in all aspects that were material to the charges. Her demeanour was calm and natural and her testimony was absolutely credible. She provided her evidence in an objective and logical manner. Her testimony was both measured and fluent. She was completely objective and factual and did not embellish or exaggerate any detail. She gave the impression that she had nothing to hide. She did not attempt to vilify the accused. Overall, I found the victim’s evidence to be cogent and unusually convincing. In addition, her testimony was also corroborated by other evidence which I will elaborate below.

29     If there were any inconsistencies, including those pointed out by the Defence, these were immaterial and attributable to normal human fallibility in memory due to the passage of time but which did not detract from the overall cogency of the totality of her testimony. In other words, the inconsistencies were entirely minor or acceptable.

Existing relationship

30     I believed the victim’s evidence that she was in a boy-girl relationship with the accused. Initially, they were just friends but they both entered into a relationship sometime in June 2013 which was a few months after they were introduced to each other.[note: 16] In fact, it was her parents who first introduced the accused to her because they wanted her to be with him as they thought he was a “very nice” and “very religious” person.[note: 17] The victim explained how the relationship started:

I just remember us going out as a family, uh, quite often like, for family gathering then he would be there, and then, we started, uh, I think, then, we started texting each other.[note: 18]

They went out for movies at night and they became boyfriend and girlfriend.[note: 19]

31     However, the victim told the court that the accused’s parents did not approve of the accused having any relationship with the victim because of the age gap. Therefore, the accused and the victim had to hide their relationship from the accused’s parents.[note: 20] The victim further testified that the accused would lie to his brothers to hide the fact that he was going out with her.[note: 21] In fact, the accused would be beaten up by his brother for going out with the victim.[note: 22]

32     The fact that they were dating was known and corroborated by her parents’ testimony. Whenever he wanted to go out with the victim alone, he would ask the victim’s mother’s permission. He would text the victim’s mother.[note: 23] When her mother gave her permission, the accused would drive and pick up the victim in his car.[note: 24] The mother would see them out of the flat and house and even look from the kitchen window to see them drive off safely.[note: 25] They went out once or twice a week.[note: 26]

33     The victim’s mother testified that the accused and the victim were close and that they always went out together.[note: 27] She testified that the victim had in fact revealed that the accused had expressed his interest to be the victim’s girlfriend. However, the mother reminded the victim of their age gap. Her mother did not know if they in fact became boyfriend and girlfriend. However, she was aware that they continued to go out together.[note: 28] The victim’s father also corroborated the victim’s account and testified that he knew that the two of them would go out about once a week.[note: 29] The accused would pick up the victim in his car i.e. the black Mercedes.[note: 30]

34     Their relationship lasted almost a year before they broke up in the middle of 2014.[note: 31] They broke up because she was embarrassed that he was much older. Furthermore, his family did not approve of their relationship with and they had to hide it from them.[note: 32]

35     I found the victim’s evidence of their relationship to be completely credible and supported by her parents’ evidence. When considered alongside the accused’s bare denial of any relationship, I preferred and believed the victim’s version.

First offence – vaginal penetration

36     Given the fact and context of their relationship, I believed the victim’s account of the first offence. I agreed with the Prosecution’s submission that she provided a textured and sufficiently detailed recollection of the first (and also the second) offence.[note: 33]

37     The victim was able to anchor the first offence in time. She remembered that that the first offence happened in 2013 before she turned 13 years old.[note: 34] It was her first experience of sexual intercourse.

38     She testified that the accused drove her to a heavy vehicle carpark which was established to be at 255 Dairy Farm Road.[note: 35] He had purchased a box of condoms at the petrol kiosk along the way. She testified that the accused started kissing her before removing her clothes. He also removed his clothes. He then climbed over to the passenger seat and got on top of her. He had sexual intercourse with her.[note: 36] The sexual intercourse lasted less than half an hour. She was quite candid with Counsel that she was unable to remember all the details. For example, she remembered the accused putting on the condom and climbing over and on top of her,[note: 37] but cannot recall if he had ejaculated into the condom or onto a tissue.[note: 38] She recalled that after the sexual act, the accused took her home where he cleaned up his private part in the toilet of her flat.[note: 39] She testified that she had not had sex with anyone before this incident.[note: 40]

Second offence – oral penetration

39     In respect of the second offence, they were also in the accused’s car whilst he was driving. He had unbuckled his belt and unzipped his pants.[note: 41] He then put his hand on the back of the victim’s head and pulled her head towards him so that the victim could perform fellatio on him.[note: 42] He continued to place his hand on the back of her head while she fellated him for less than 10 minutes. The victim recalled that this incident happened during the day when she was not in school. Therefore, it likely occurred during the school holidays in the later half of 2013.[note: 43]

Corroborative Evidence

40     The victim’s evidence in court was broadly coherent and consistent, both internally and externally. I found that her testimony was further corroborated by two other aspects of the Prosecution’s evidence: (i) her account of events to the examining gynaecologist; and (ii) IG messages that were exchanged between the victim and Erratiqah (accused’s then fiancée).

(i)   Medical Examination

41     In the course of police investigations, the victim was examined in December 2018 by Dr Yip, a gynaecologist at the hospital.[note: 44] Dr Yip set out the victim’s account of events in her report[note: 45]. She cannot recall the victim’s exact account and was only relying on what was stated in her report.

42     I considered and found that the victim’s testimony was materially consistent with her account of events as set out in Dr Yip’s report.[note: 46] The victim identified the accused. She told Dr Yip that the accused and her were inside a car parked at a carpark at night. The accused then showed her a condom saying it was a surprise. He undressed himself and her and put on the condom. He moved to the passenger seat and got on top of her. He kissed her and had penile-vaginal intercourse with her. She told him to stop because she felt pain but he continued. After the intercourse, he sent her home.

43     The victim did not mention the incident of fellatio to Dr Yip. However, I accepted her explanation, as being reasonable, that Dr Yip’s clinical examination and questions related to the sexual intercourse and the frequency of coitus. Therefore, it did not occur to the victim to talk about the act of oral penetration.[note: 47]

(ii)   Instagram Messages

44     The accused met his present wife, Erratiqah, in May 2016 and entered into a relationship with her sometime in July 2016.[note: 48] The sexual relationship between the accused and the victim came to light when there was an argument between Erratiqah and the victim by way of IG messages. The IG messages were admitted in evidence.[note: 49] There was no dispute as to the admissibility of these messages. The IG messages suggested that Erratiqah was fully cognisant of the past relationship between the accused and the victim and that they had sex in the past.

45     The IG messages were dated 15 November 2018. The context of IG messages was such. The victim’s sister received a message from Erratiqah one day accusing the former of cyber-stalking. The victim’s sister then consulted the victim on how to respond to Erratiqah’s accusation. The victim replied to Erratiqah using her sister’s IG account.[note: 50] Nothing turns on the allegation of cyber-stalking but that is the reason which started the IG exchange between the victim and Erratiqah.

46     During their exchange of IG messages, the victim revealed that “she [victim] had done everything with Mus [accused].” The victim asked if Erratiqah could bear to sleep with accused now knowing that the victim had already “used” him. Erratiqah then shot back saying:

Mus is a guy so I have no problems if he was already used by anyone. But you girl, would your boyfriend or future husband have any appetite for you who had been sondol1 by other men hahahahaha

1(Translator’s note: Literally it means ‘to be butted’ or ‘pushed with the head’. However, in this context, it probably means ‘to be penetrated’.)

47     Looking at Erratiqah’s above reply, it showed that she already knew that the accused has had sex with the victim.

48     The victim’s mother got to know about the messages because she had access to the victim’s sister’s IG account. She then questioned the victim who then decided to admit to her parents that she had sex with the accused.[note: 51]

49     Erratiqah acknowledged under cross-examination by the learned DPP that the IG messages between the victim and her was sexual in nature. She conceded that she understood the victim to be telling her that she had sex with the accused. Her response to the victim was to tell the victim that being a woman, she had more to lose in terms of reputation than the accused.[note: 52]

50     I found that Erratiqah already knew about the past sexual relationship between the accused and the victim. She conceded that despite what the victim told her, she did not question the accused. She explained that she knew it did not happen and that the accused would have nothing to tell her.[note: 53] I did not accept this explanation which was entirely circular. The only logical inference that I could draw was that she already knew about the accused’s sexual relationship with the victim and hence there was no need to confront the accused. I fully agreed with the Prosecution’s submission that it would have been most natural for Erratiqah to question the accused, with whom she was already engaged at that time, as to what the victim had claimed. The fact that Erratiqah was not even surprised and did not question the accused showed that she already knew that the victim had told the truth.

No Motive or Reason to Lie

51     It is trite law that the burden lies on the accused to show that the victim has a motive to falsely implicate him and that mere allegations are insufficient: AOF v PP [2012] 3 SLR 34 at [215]. I found that the Defence has not discharged this burden.

52     I was satisfied that the victim had neither motive nor reason to make such allegations against the accused. I also did not find that the victim harboured any grudge or was biased against the accused in any way. Their relationship had ended in 2014. There was no suggestion that the break-up was anything but mutual and amicable. Since then, they have both moved on with their lives. It was not in dispute that the victim had little to no communication with the accused who went to meet Erratiqah. The Defence took pains to question the victim as to her subsequent relationships. Counsel also showed her photographs which she took with other boys.

53     There was absolutely no reason why the victim would make up such allegations more than four years after her relationship ended with the accused. As between the victim and Erratiqah, it was not disputed that they have never met each other, even though they had an online argument in 2016. However, the present allegations were not brought up then. The allegations only came up during a second argument in 2018 as captured in the IG messages in P4. In fact, it was Erratiqah who started the spat when she sent a message to the victim’s sister and that led to the victim responding to Erratiqah through the sister’s account. It was essentially an online spat between an ex-girlfriend and the current one. It may well be that the victim was trying to one-up Erratiqah by revealing that she (the victim) had already had sex with accused. However, I found that she was telling the truth albeit in a boastful manner. She was merely stating it as a fact that she had already “used” the accused. It was Erratiqah who tried to turn that fact against the victim saying that being a woman, it was not something to be proud of.

54     I rejected any suggestion that the victim had lodged the police report out of revenge or spite. If she did so because of any animosity with Erratiqah, she could and would have done so in 2016 but that did not happen. On the contrary, I accepted the victim’s evidence that she did not reveal her sexual activity with the accused to anyone because she was “embarrassed it happened”.[note: 54] She only told her mother her sexual relationship with the accused because her mother questioned her.[note: 55] If the allegations were untrue, she could have easily come clean. The fact that she had to admit to her mother that she had sex with the accused, which could not have been easy and which would certainly incur the wrath of her parents, showed that she was indeed telling the truth. The further fact that she went ahead to lodge a police report was probative evidence that she spoke the truth.

55     In summary, I found that the victim had moved on with her life after her relationship with the accused had ended. It was only because of the exchange of messages between Erratiqah and the victim that prompted the victim to reveal that the accused has had sex with her. She had not made up the allegations. The messages were eventually read by her mother which led to the discovery of the offences.

Defence Rejected

56     The accused’s defence was one of a bare denial of the charges. The offences could not have taken place because he denied being in any relationship with the victim.[note: 56] In respect of the second offence, the accused said the act was not possible.[note: 57]

57     I fully agreed with the Prosecution’s submission that the accused’s testimony was internally inconsistent.[note: 58] On the one hand, he said that he “seldom” went to Natasha’s house and that their interactions were confined to the 4Life events.[note: 59] He then conceded that he had gone out once or twice alone with the victim for movies.[note: 60] His evidence was externally inconsistent with the evidence of the victim and her parents and belied the many objective photographs[note: 61] taken of him with the victim and her family. The accused tried too hard to play down how close he was to the victim and her family. I disbelieved his testimony and rejected his denial of a relationship with the victim. I found that he clearly lied when he said he was merely friends with the victim. The Prosecution also could not help but point out that the accused made a Freudian slip in his VRI statement when he referred to the victim as his “ex”. I rejected his explanation in court that by “ex”, he meant “ex-friend” and not “ex-girlfriend”. That would not be the common or conventional meaning of the term “ex” in the Singapore context.

58     I also noted that the very relationship which he vehemently denied at trial was ironically raised and relied upon by the Defence in his mitigation plea to argue for a lighter sentence.[note: 62] The accused was therefore choosing to either use or deny the relationship with the victim as it suited him.

59     The Prosecution also rightly pointed out that the accused’s evidence was vague as regards who drove the car when he went on those two movie dates with the victim.[note: 63] He claimed that it was his brother who had driven him in the car.[note: 64] When pressed for the identity of this brother, the accused could not say which of his five brothers had driven him.[note: 65] He further claimed that he could not remember because each occasion was different.[note: 66] The accused had therefore conceded that he had gone out on dates with the victim on at least two occasions. This revelation contradicted his Defence that he was merely friends with the victim.

60     The question whether they were in a relationship was central to the accused’s defence of the charges. Given my finding that they were in fact in a relationship, the accused’s defence was therefore severely undermined.

61     As regards the accused’s assertion that the alleged act in respect of the second offence was not possible, he has not shown to this court how the alleged act could not have been carried out. On the contrary, I believed the victim and accepted her evidence that she did fellate the accused while he was driving. I certainly found that the alleged act was humanly possible. The question that is often discussed is not whether it can be done physically but whether it is safe or legal for the driver to be receiving oral sex when driving.[note: 67] There have been cases reported in other jurisdictions of drivers getting into traffic accidents for such conduct, quite apart from the issue of the legality of the act itself.[note: 68] There is no question that the physical act of oral sex in a moving car is possible.

Accused’s evidence inconsistent with VRI statement

62     The Prosecution also rightly pointed out that the accused’s testimony was incongruous with his VRI statement in material aspects.

63     Thus, he stated in his VRI statement that they (referring to the victim and him) “sometimes take public transport, sometimes drive” when they went out together. He also stated in his statement that he would go to “fetch” the victim when they went out alone. This version was very different from his court testimony that his brother (never mind which one) would drive them in the car. He tried very hard in court to give the impression that his brother would chaperone them when they went out. Even then, the accused was vague as to who drove the car when he went out with the victim. When pressed by the learned DPP if he was asserting that he did not drive the car when he went out with the victim, the accused could only say that he could not recall.[note: 69]

64     In any event, Counsel for the Defence did not put to the victim that the accused did not drive the car at the material time. The rule in Browne v Dunn (1893) 6 R 67 as affirmed by the Court of Appeal in Sudha Natrajan v The Bank of East Asia Ltd [2017] 1 SLR 141 at [48] is therefore engaged. Accordingly, the Defence is precluded from asserting that it was the accused’s brother who was driving the car on the material dates of the offences.

Defence witnesses

65     There were three witnesses for the Defence, apart from the accused. They were Erratiqah (accused’s wife), Haffiyenti[note: 70] (his older sister), and Amirul[note: 71] (his younger brother).

66     I did not find that their evidence furthered the accused’s defence. On the contrary, as elaborated above, I found that Erratiqah’s evidence showed that she knew about the sexual relations between the accused and the victim. Accordingly, her evidence corroborated the victim’s allegations against the accused.

67     Haffiyenti’s evidence did not assist the Defence either. The car in question was purchased by her father and registered in her name. The car was sold in 2019 because the family had financial difficulties. She testified that her father permitted both Amirul and the accused to drive the car.[note: 72] She added that Amirul would be the one driving most of the time and that the accused would take over if Amirul was tired. She also said the accused would not be driving alone. However, this was in the context of driving the car from Malaysia to Singapore to attend the 4Life events. Her evidence did not go so far as to say that the accused never borrowed the car for other purposes. Her evidence was simply that she was not aware if the accused had taken the car on his own.[note: 73] It was not in dispute that the accused’s parents had more than one car.[note: 74] Haffiyenti did not drive this car because she had her own car.[note: 75] At least one other sibling has his own car.[note: 76] Therefore, it was not the case that the accused could never have had the exclusive use of the material car at any point in time. In fact, it was Haffiyenti’s evidence that this car was used by the accused and Amirul.[note: 77]

68     Amirul’s evidence regarding the use of the car was also largely focused on driving between Malaysia and Singapore.[note: 78] His evidence was that he did most of the driving except when he was tired.

69     Haffiyenti also testified that the accused and the victim were friends but not in a relationship. However, she testified that both families got along very well and she knew that the victim’s parents had wanted the accused to be part of their family.[note: 79] I found this to be more consistent with the victim’s (and her parents’) testimony that the accused was, in fact, dating the victim. Even if Haffiyenti was not aware that the two were dating, that was because the couple were hiding their relationship from the accused’s family because his parents did not approve of their relationship. It was not in dispute that the accused’s parents and most of the accused’s siblings (including Haffiyenti and Amirul) lived in Johor[note: 80] and would come to Singapore weekly to attend the 4Life events.[note: 81] It was also not in dispute that the accused would stay at one of his brother’s (Fadzli) flat in Jurong West occasionally.[note: 82] Therefore, it would not be very difficult for the accused to hide his relationship with the victim from his family, including Haffiyenti.

70     For the same reasons, it would also explain why Amirul testified that the accused was not having a relationship with the victim. Considering that Amirul was also not residing in Singapore, he may not know what the accused was up to when the latter stayed in Singapore.

71     I was also alive to the possibility that Amirul knew about the relationship but was not telling the truth in court to protect his brother. Either way, I found his evidence that there was no relationship between the accused and the victim to be doubtful or unreliable.

72     His evidence of what he knew of the victim did not cohere with what the accused was prepared to accept. For example, Amirul claimed to have heard of the victim and her family but had no interactions with them.[note: 83] This clearly flew in the face of the undisputed evidence that both families were close, at least before the families eventually drifted apart. Amirul also claimed he was not aware that the accused had gone out with the victim’s family. He was certainly unaware that the accused had gone out with the victim.[note: 84] This contradicted even the accused’s limited concession that he had gone out twice with the victim on movie dates and that it was Amirul who had chaperoned them as the driver. Both brothers clearly could not get their story straight in court.

Conclusion - Conviction

73     I believed the victim’s testimony which I found to be internally and externally consistent, unusually convincing and fully corroborated by other evidence.

74     I did not find that she had any motive or reason to make up false allegations against the accused, especially regarding events which had taken place some years ago.

75     I preferred her evidence to that of the accused, who was untruthful and had plainly lied about his relationship with the victim. It was obvious that the accused had every reason and motive to lie about their relationship which was the basis and which formed the context of the offences. His denial of their underlying relationship was completely inconsistent with the totality of the all the evidence.

76     Having carefully considered all the evidence and the respective submissions from the parties, I found that the prosecution has proved its case against the accused beyond reasonable doubt. Accordingly, the accused was convicted of the charges.

Sentence

77     The accused was sentenced on both charges as follow:

Charge No.

Offence

Sentence

DAC-901125-2020

S 376A(1)(a) punishable under s 376A(3) Penal Code (Cap 224, Rev Ed 2008)

Ten (10) years' imprisonment and six (6) strokes of the cane.

DAC-901128-2020

S 376A(1)(a) punishable under s 376A(3) Penal Code (Cap 224, Rev Ed 2008)

Six (6) years' imprisonment and four (4) strokes of the cane.

Further Order:

Sentences in DAC-901125-2020 and DAC-901128-2020 to run consecutively.

Total Sentence:

Sixteen (16) years' imprisonment and ten (10) strokes of the cane.



78     Two similar charges that were stood down at the commencement of the trial were withdrawn by the Prosecution after the accused was sentenced.[note: 85]

Prescribed punishment

79     Both charges were for offences of SPOM under s 376A(1)(a) and punishable under s 376A(3) of the Penal Code. The offences were committed against the victim who was below 14 years of age. The prescribed punishment for both offences is as follows:

(3) Whoever commits an offence under this section against a person (B) who is under 14 years of age shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

80     The Prosecution also reminded the court that pursuant to s 303(2) and 306(4) of the CPC, the maximum sentence that a District Court can impose for each charge is 10 years imprisonment with 12 strokes of the cane, and that the aggregate sentence cannot exceed twice of this limit. In other words, the upper limit in respect of the total sentence is 20 years’ imprisonment and 24 strokes of the cane.

Respective Sentencing Positions

81     The sentencing positions of both parties were indeed very wide apart.

Prosecution’s sentencing position

82     The Prosecution submitted that the accused be sentenced to 17 years’ imprisonment and 10 strokes of the cane as follows:[note: 86]

(a)     1st Charge (DAC-901125-2020): 10 years’ imprisonment and 6 strokes of the cane; consecutively with

(b)     2nd Charge (DAC-901128-2020): 7 years’ imprisonment and 4 strokes of the cane.

Defence’s sentencing position

83     On the other hand, the Defence initially submitted for a sentence of only 12 months’ imprisonment with no caning for each charge to run consecutively, adding up to 24 months’ imprisonment.[note: 87] Counsel subsequently revised the Defence’s sentencing position upwards to 4 years’ imprisonment without caning[note: 88]:

(a)     1st Charge (DAC-901125-2020): 3 years’ imprisonment; consecutively with

(b)     2nd Charge (DAC-901128-2020): 1 year’s imprisonment.

Sentencing Considerations

Applicable sentencing frameworks

84     The Prosecution cited the decision of the High Court in CJH v Public Prosecutor [2022] SGHC 303 (“CJH”) which ultimately guided me in the approach to be taken in sentencing the accused for both his SPOM charges.[note: 89] The High Court in CJH applied the sentencing framework laid down by the Court of Appeal (“CA”) in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”) to the first charge involving penile-vaginal penetration and the sentencing framework devised by the CA in Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) to the second charge involving penile-oral penetration.

85     In applying the respective frameworks, the Court in CJH referred to Sundaresh Menon CJ’s decision in ABC v Public Prosecutor [2022] SGHC 244 (“ABC”) where Menon CJ held (at [45]) that that the Pram Nair framework “should apply to all offences that are to be sentenced under s 376(3) and also those under s 376A(3)”, subject to his provisional view that offences of penile-vaginal penetration prosecuted under s 376A(1)(a) instead of rape should be dealt with by applying the Terence Ng framework.

1st Offence: Penile-Vaginal SPOM

86     In CJH, the offender (then 15 years old) had engaged in penile-vaginal intercourse with the victim (then 9 years old). The Court held at [96] that the Terence Ng sentencing framework was applicable to the offence of penile-vaginal penetration. The Court then applied the Terence Ng sentencing framework and agreed with the Prosecution that the charge for penile-vaginal penetration in that case fell within Band 2 of the Terence Ng framework but calibrated the indicative sentence downwards on account of his plea of guilt and his rehabilitative prospects given that he was a relatively youthful offender who was 20 years old at the time of the proceedings.[note: 90] The Court sentenced the accused to 10 years’ imprisonment and 8 strokes of the cane in respect of the charge for penile-vaginal intercourse. The sentence was upheld by the CA in CJH v Public Prosecutor [2023] SGCA 19 (“CJH (CA)”).

87     The sentencing framework in Terence Ng is for “contested cases”[note: 91] and applies to offences of rape, including the offence of statutory rape under s 375(1)(b) read with s 375(2) of the Penal Code. The offence of statutory rape is the same offence as the present offence under s 376A(1)(a) read with s 376A(3) of the Penal Code (i.e. the first charge) insofar as the act under s 376A(1)(a) is one of penile-vaginal penetration. The prescribed punishment for both offences is the same.

88     Accordingly, I set out the Terence Ng framework as follows:

Band 1: 10 to 13 years’ imprisonment, six strokes of the cane;

Band 2: 13–17 years’ imprisonment and 12 strokes of the cane; and

Band 3: 17–20 years’ imprisonment and 18 strokes of the cane.

The application of the Terence Ng framework is to take place in two steps.[note: 92] The first step requires the sentencing court to consider the offence-specific factors and decide which band the offence in question belonged to. In the second step, the sentencing court would further identify where within that range the offence fell in order to derive an indicative starting sentence.

89     Band 1 comprised cases at the lower end of the spectrum of seriousness and attracted sentences of 10 to 13 years’ imprisonment and six strokes of the cane. Given the nature and circumstances of the first charge, low level of harm involved and the absence of the offender-specific aggravating factors that would push the case into the upper bands, I agreed with the Prosecution’s submission that the offence would fall within Band 1 of the Terence Ng framework.

90     I considered that the following factors were relevant to sentencing within Band 1:

(a)     The victim was a very young student who was then 12 years old at the time of the offence;

(b)     The accused was an adult and there was a 10-year age difference between the accused and the victim. The accused would have the advantage of a decade of maturity and life experiences over the victim. Accordingly, their relationship was very much asymmetric.

(c)     There was no consent legally speaking. It was emphasised in Terence Ng at [44(f)] that the policy of the law is that a female under 14 cannot consent to sexual activity. Thus, any man who uses his penis to penetrate the vagina of such a female commits rape, irrespective of whether the victim assents to the act. Even as regards factual consent, given the asymmetric nature of their relationship by virtue of their huge age difference, the accused had exerted some degree of pressure on the victim to have sex with him. He had driven her to a deserted carpark in the night and had bought condoms beforehand without her knowledge. He had intended and planned to have sexual intercourse with the victim but the victim was given no opportunity to even mentally prepare herself. She was not entirely comfortable with the act and the evidence was that she did in fact tell the accused to stop.[note: 93] It was also the first time that the victim’s had sexual intercourse.[note: 94] She was not experienced sexually at all compared to the much older accused.

(d)     There was some degree of abuse of trust in that the accused had to ask the victim’s parents for permission to take the victim out on a date. The victim’s parents had trusted the accused and did not and would not have agreed to the accused having sex with their daughter. As observed in Terence Ng at [44(b)], when an offender commits the offence in circumstances where trust is abused, there is a “dual wrong” in that not only has he committed a serious crime, he has also violated the trust placed in him in this case by the victim’s parents.

91     This last factor was an offence-specific aggravating factor which would situate this offence at the very least in the middle range of Band 1 of the Terence Ng framework. In respect of statutory rape cases, it was held in Terence Ng that such cases in which the victim consents and there are no further notable aggravating factors (such as an abuse of position or evidence of particular vulnerability over and above the age of the victim) should fall in the upper band of Band 1 with an indicative starting point of 12 years’ imprisonment. Band 1 also prescribes six strokes of the cane: Terence Ng at [47(a)].

92     Thus, the appropriate indicative imprisonment term would be at least 11.5 years’ imprisonment if not 12 years’ imprisonment. In addition, the victim had testified that there were other instances of sexual intercourse i.e., about twice a month in the same car.[note: 95] This was yet another aggravating factor which would have pushed the indicative sentence to beyond the baseline of 10 years’ imprisonment.

93     There were no mitigating factors operating in favour of the accused. The CA in Terence Ng (citing Public Prosecutor v AOM [2011] 2 SLR 1057 at [34]) stated clearly at [45(b)] that the fact that a victim consented to intercourse was not a mitigating factor save in “exceptional” cases, e.g., where the offender and the victim were of the same or similar age at the time the offence was committed. It was plainly not the case here.

94     More importantly, the accused had decided to claim trial to the charges. In so doing, he did not spare the victim of the ordeal and embarrassment of having to testify in court. The victim was also subjected to the cross-examination by his Counsel and had to refute the Defence’s allegations that she had made up the allegations.

95     I am, however, limited by s 303(2) of the CPC to imposing not more than 10 years’ imprisonment in respect of any charge. Accordingly, the accused was sentenced to 10 years’ imprisonment and 6 strokes of the cane in respect of the first charge.

2nd Offence: Penile-Oral SPOM

96     The High Court in CJH also had to deal with an act of vaginal-oral penetration in the third charge against the offender in that case. The Court applied the Pram Nair sentencing framework when considering the appropriate sentence for the offence and found that the offence fell within at least the middle range of Band 2 of the Pram Nair framework but calibrated the indicative sentence downwards to 8 years and 4 strokes for the same reasons as for the offence of penile-vaginal penetration.[note: 96]

97     The sentencing framework in Pram Nair (“Pram Nair framework”) at [158]-[159] was modified from the Terence Ng framework to apply to offences of sexual assault by penetration, other than penile-vaginal penetration:

Band 1: 7-10 years’ imprisonment and four strokes of the cane;

Band 2: 10-15 years’ imprisonment and eight strokes of the cane; and

Band 3: 15 to 20 years’ imprisonment and 12 strokes of the cane

Band 1 would comprise of cases with no offence-specific aggravating factors or where the factor(s) are present to a very limited extent and therefore should have limited impact on the sentence.

98     In the present case, I repeat the same sentencing factors that were considered above in respect of the first charge, except that the victim was a year older when the second offences of fellatio was committed. In addition, I also considered that the accused had used some force to commit the offence in that the victim testified that the accused put his hand on the back of her head and pulled her head over to the driver’s side and downwards to perform fellatio for him for about 10 minutes. The victim said she felt uncomfortable pushed his hand away so that she could return to her seated position.[note: 97] I agreed with the Prosecution’s submission that while this would not constitute “actual or threatened violence”, it was also very different from a verbal instruction to perform fellation as was the case in CJH.

99     All considered, I agreed with the Prosecution’s submission that the second offence fell within Band 1 of the Pram Nair framework which attracts an imprisonment term of 7 to 10 years, with 4 strokes of the cane.

100    The Prosecution submitted for a sentence of 7 years’ imprisonment, with 4 strokes of the cane, which lies at the lowest end of Band 1.[note: 98] I would not disagree with the proposed sentence, given that it is already at the lowest end of the lowest band. As with the first offence, I found no mitigating factors which would warrant a reduction of this indicated sentence. In CJH, the High Court had originally sentenced the offender to 8 years’ imprisonment and 4 strokes of the cane for the offence of fellatio. This was reduced on appeal to 6 years’ imprisonment and 4 strokes of the cane, but only on account of principles of totality. That case was more aggravating only because the degree of abuse of trust was higher in that the offender and the victim were siblings. However, the offender in CJH was much younger than the present accused both when the offence was committed (17 years old) and when he was sentenced (20 years old). Furthermore, the offender in CJH was contrite in that he pleaded guilty to his charges unlike the present accused who decided to contest his charges. On balance, I considered that the Prosecution’s submission for 7 years’ imprisonment and 4 strokes of the cane for the present second charge was condign and justified.

Defence’s Precedents

101    In his further written mitigation plea, the Defence submitted that the accused ought to be sentenced to similar sentences as imposed in like cases around 2020 coinciding with the time he was charged. The Defence referred to a table of precedents in support of their submission.[note: 99]

102    I rejected Counsel’s submission because there was no logical or legal basis for the argument. A similar submission was made before me in Public Prosecutor v Jayaraman A/L Sankaran [2023] SGDC 202. In that case, the Defence also argued that the accused ought to be sentenced in accordance with the applicable sentencing framework at the time he was charged because by the time he was convicted of the charge under the Workplace Safety and Health Act (Chapter 354A), the previous sentencing framework in Nurun Novi Saydur Rahman v Public Prosecutor [2019] 3 SLR 431 had been overruled and replaced with a new framework in Mao Xuezhong v Public Prosecutor and another appeal [2020] SGHC 99. I sentenced the accused by applying the new sentencing framework rather than the previous sentencing framework. The sentence was affirmed on appeal.[note: 100]

103    I noted that all but one of the precedents cited by the Defence are ‘plead guilty’ cases. The sentences imposed in those precedents would therefore be discounted sentences. In any event, I agreed with the Prosecution’s submission that Menon CJ had prospectively overruled all the cases decided prior to ABC which had not applied the Pram Nair framework in respect of sexual offences with penetration, other than penile-vaginal penetration. I agreed with the Prosecution’s observation that accordingly, I should disregard all the lower court precedents cited by the Defence. I would also derive limited assistance in respect of the sentences imposed in High Court decisions[note: 101] that were decided prior to ABC as these precedents would have to be considered in that context and with that caveat.

Aggregate Sentence and Totality

104    In the present case, it was common ground between the parties, and quite rightly so, that the imprisonment sentences should run consecutively. This was because as a general rule, an offender who has committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively: Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [41]. In the present case, the two offences may have involved the same victim but were completely separate acts committed on quite separate occasions. I considered the two offences to be distinct and unrelated.

105    Nonetheless, the Prosecution accepted that in the present case, there is room for calibration of the sentences on account of the totality principle, but left the degree of the calibration to the Court’s discretion.[note: 102] Having said that, the Prosecution also submitted that the sentences sought in respect of the two charges already lie at the lowest end of the respective applicable sentencing frameworks, and that there were no compelling reasons warranting a further reduction of the global sentence.[note: 103]

106    I was, however, guided by the approach in CJH (CA) where the CA considered that the offender was only 20 years old at the time of his sentence and the aggregate sentence of 18 years’ imprisonment was therefore a crushing one for the offender as it represented almost his whole life up to that point. With that observation, the CA reduced the imprisonment term for the 3rd charge of fellatio from 8 years to 6 years’ imprisonment. In the present case, the accused was 34 years old at the time of sentence. The indicative aggregate sentence of 17 years’ imprisonment would constitute half of his whole life, unlike the case in CJH. Accordingly, I calibrated the imprisonment sentence for the second charge downwards by one year to 6 years’ imprisonment.

107    I finally considered that the adjusted aggregate sentence of 16 years’ imprisonment and 10 strokes of the cane, even though severe, was not crushing but is in keeping with his future prospects given his present relatively young age: Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 at [57].

Conclusion - Sentence

108    Given all the circumstances of the present case and considering the accused’s overall culpability and lack of contrition, the final aggregate sentence of 16 years’ imprisonment and 10 strokes of the cane was consistent with the applicable sentencing frameworks and therefore appropriate and justified.

[note: 1]Prosecution’s Closing Submission dated 1 December 2023 (“PCS”).

[note: 2]PW3.

[note: 3]P4.

[note: 4]PW5.

[note: 5]P3.

[note: 6]P1.

[note: 7]P8.

[note: 8]P8T.

[note: 9]P2 and P5 respectively.

[note: 10]Defendant’s Submissions dated 28 December 2023 (“DCS”) at [6]-[8].

[note: 11]NEs, Day 6, Pg 4, Line 2.

[note: 12]NEs, Day 2, Pg 62, Line 24 to 26.

[note: 13]NEs, Day 6, Pg 5, Lines 3 to 14.

[note: 14]PCS at [6].

[note: 15]Notes of Evidence (“NEs”), Day 2, Pg 4, Line 3 to 11.

[note: 16]NEs, Day 2, Pg 56, Line 14 to 18

[note: 17]NEs, Day 2, Pg 5, Line 14 to 21.

[note: 18]Nes, Day 2, Pg 6, Line 13 to 16.

[note: 19]NEs, Day 2, Pg 5, Line 21 to 24.

[note: 20]NEs, Day 2, Pg 61, Line 14 to 18.

[note: 21]NEs, Day 2, Pg 61, Line 20 to 21.

[note: 22]NEs, Day 2, Pg 61, Line 22 to 23.

[note: 23]NEs, Day 2, Ps 12, Line 14 to 15.

[note: 24]NEs, Day 2, Pg 12, Line 10 to NEs, Day 2, Pg 13, Line 22

[note: 25]NEs, Day 4, Pg 18, Line 27 to NEs, Day 4, Pg 19, Line 21

[note: 26]NEs, Day 4, Pg 19, Line 24 to NEs, Day 4, Pg 20, Line 14

[note: 27]NEs, Day 4, Pg 22, Line 5 to 26

[note: 28]NEs, Day 4, Pg 24, Line 12

[note: 29]NEs, Day 3, Pg 53, Line 5.

[note: 30]NEs, Day 3, Pg 54, Line 1 to 21.

[note: 31]NEs, Day 2, Pg 16, Line 4 to 7.

[note: 32]NEs, Day 2, Pg 16, Line 10 to 14,

[note: 33]PCS at [16].

[note: 34]NEs, Day 2, Pg 14, Line 8.

[note: 35]Photographs in P2 and P5.

[note: 36]NEs, Day 2, Pg 33, Line 19 to NEs, Day 2, Pg 35, Line 27

[note: 37]NEs, Day 2, Pg 92, Lines 22 to 24.

[note: 38]NEs, Day 2, Pg 97, Line 22, to NEs, Day 2, Pg 98, Line 9

[note: 39]NEs, Day 2, Pg 93, Lines 20 to 28.

[note: 40]NEs, Day 2, Pg 93, Lines 11 to 13.

[note: 41]NEs, Day 3, Pg 25, Line 16, to Day 3, Pg 28, Line 8.

[note: 42]NEs, Day 3, Pg 23, Lines 14 to 32.

[note: 43]NEs, Day 3, Pg 24, Lines 1 to 13

[note: 44]PW1.

[note: 45]P1.

[note: 46]At [3].

[note: 47]NEs, Day 3, Pg 21, Line 19 to Day 3, Pg 22, Line 18

[note: 48]NEs, Day 8, Pg 4, Lines 13 to 23

[note: 49]P4.

[note: 50]NEs, Day , Pg, Line 4 to 10.

[note: 51]NEs, Day 2, Pg 17, Line 27 to 31.

[note: 52]See generally NEs from Day 8, Pg 27, Line 14 to Day 8, Pg 31, Line 25

[note: 53]NEs, Day 8, Pg 9 Line 28 to Day 8, Pg 10, Line 8

[note: 54]NEs, Day 2, Pg 30, Line 19

[note: 55]NEs, Day 2, Pg 67, Lines 20 to 28

[note: 56]NEs, Day 6, Pg 4, Line 2.

[note: 57]NEs, Day 6, Pg 10, Lines 3 to 4.

[note: 58]PCS at [46].

[note: 59]NEs, Day 6, Pg 7, Lines 8 to 20.

[note: 60]NEs, Day 6, Pg 37, Lines 11 to 22.

[note: 61]P6.

[note: 62]Plea-In-Mitigation dated 15 April 2024 (“PIM2”) at [20].

[note: 63]PCS at [47]-[48].

[note: 64]NEs, Day 6, Pg 11, Line 1, to Day 6, Pg 13, Line 2

[note: 65]NEs, Day 6, Pg 37, Line 14 to Day 6, Pg 40, Line 17

[note: 66]NEs, Day 7, Pg 14, Line 13 to Day 7, Pg 16, Line 25

[note: 67]E.g. https://www.sydneycriminallawyers.com.au/blog/is-receiving-oral-sex-whilst-driving-a-crime/

[note: 68]E.g. https://nypost.com/2022/06/03/oral-sex-sends-florida-man-crashing-into-fedex-truck/

[note: 69]NEs, Day 7, Pg 17, Lines 5 to 7

[note: 70]DW3 Haffiyenti bte Salim.

[note: 71]DW4 Amirul Amri bin Salim.

[note: 72]NEs, 4 October 2023, p 39, lines 8-9.

[note: 73]NEs, 4 October 2023, p 43, lines 20-21.

[note: 74]NEs, 4 October 2023, p 48, lines 19-22.

[note: 75]NEs, 4 October 2023, p 53, lines 29-32.

[note: 76]NEs, 4 October 2023, p 49, lines 29-31.

[note: 77]NEs, 4 October 2023, p 52, lines 9-13.

[note: 78]NEs, 4 October 2023, p 62, lines 8-28; p 68 lines 1-7.

[note: 79]NEs, 4 October 2023, p 43, lines 14-17.

[note: 80]NEs, 4 October 2023, p 45, lines 24-27.

[note: 81]NEs, 4 October 2023, p 47, lines 27-31

[note: 82]NEs, 19 January 2023, p 27, line 20; 4 October 2023, p 50, lines 15-23.

[note: 83]NEs, Day 8, Pg 68, Lines 9 to 31

[note: 84]NEs, Day 8, Pg 70 Line 1, to Day 8, Pg 71, Line 18

[note: 85]DAC-901126-2020 and DAC-901127-2020.

[note: 86]Prosecution’s Submission on Sentence dated 5 February 2024 (“PSS”) at [2]; Prosecution’s Supplementary Submission on Sentence dated 17 April 2024 (“PSSS”) at [3].

[note: 87]Plea-In-Mitigation dated 2 February 2024 (“PIM”) at [1].

[note: 88]PIM2 at [2].

[note: 89]PSS at [6].

[note: 90]At [102], [107]-[108].

[note: 91]At [40].

[note: 92]At [39(a)], [42] and [73(a)].

[note: 93]CJH at [102].

[note: 94]NE (“NEs”), Day 2, p 36, Lines 28 to 30.

[note: 95]NEs, Day 2, p 37, lines 1 to 9.

[note: 96]At [75], [111]-[113].

[note: 97]NEs, Day 2, p 39, lines 25 to 32.

[note: 98]PSSS at [33].

[note: 99]PIM2 at [9].

[note: 100]Magistrate’s Appeal No. MA-9068-2023-01 heard on 18 January 2024.

[note: 101]Public Prosecutor v GCM [2021] SGHC 18, AQW v Public Prosecutor [2015] SGHC 134 and Public Prosecutor v Qiu Shuihua [2015] SGHC 102.

[note: 102]PSSS at [34].

[note: 103]PSSS at [36]-[38].

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Public Prosecutor v Hee Kwee Choy
[2024] SGDC 230

Case Number:District Arrest Case No 902668 of 2024, Magistrate's Appeal No 9166 of 2024 - 01
Decision Date:05 September 2024
Tribunal/Court:District Court
Coram: Kok Shu-en
Counsel Name(s): DPP Gabriel Lee (Attorney-General's Chambers) for the Public Prosecutor; Sara Ng Qian Hui (Covenant Chambers LLC) for the Accused.
Parties: Public Prosecutor — Hee Kwee Choy

Criminal Procedure and Sentencing – Road Traffic Act – Section 65(1)(b) punishable under Section 65(3)(a) read with Section 65(6)(d) – Driving without reasonable consideration causing grievous hurt – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9166/2024/01.]

5 September 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Hee Kwee Choy is a 59-year-old male Singaporean who pleaded guilty to a single charge under section 65(1)(b) punishable under section 65(3)(a) read with section 65(6)(d) of the RTA for driving without reasonable consideration for other persons using the road.

2       I sentenced the accused to 3 weeks’ imprisonment and a disqualification and period of 5 years with effect from the date of release.

3       The accused is dissatisfied with the sentence and has filed an appeal.

Facts

4       On 15 November 2022 at about 11.49pm, the accused was driving a motorcar bearing the registration number SLA5291X with his wife as a passenger

5       At the signalised cross junction of Tampines Road and Hougang Avenue 3, the accused waited for the traffic light to turn green in his favour before making a discretionary right turn.

6       Around the same time, one Liow Yaw Shen, a then 46-year-old male (“the victim”) was crossing Hougang Avenue 3 at the pedestrian crossing while the pedestrian signal was green in favour of pedestrians. The accused did not notice the victim as he was making the discretionary right turn and his car collided into the victim.

7       The accused stopped his car, attended to the victim and called for emergency medical services. The victim was subsequently conveyed to Sengkang General Hospital via ambulance.

8       As a result of the accident, the victim sustained right acetabular fractures and an undisplaced right inferior pubic ramus fracture. He underwent surgery to treat the right acetabular fractures and was subsequently placed on a physiotherapy regime that was expected to continue for at least three months.

9       The victim was hospitalised for a total 15 days and was given a total of 45 days of hospitalisation leave (which included the period of hospitalisation).

10     The accused’s car did not sustain any damages.

11     At the time of the accident, the weather was fine, the road surface was dry, traffic flow was light, and visibility was clear.

Antecedents

12     The accused did not have any previous convictions.

13     The conviction history document that was tendered to the court ahead of the mention indicated that the accused had a history of compounded traffic infringements. However, the Prosecution indicated that it was not intending to rely on these records and did not read them into the record.[note: 1]

Prosecution’s sentencing submission

14     The Prosecution submitted for a sentence between 2 to 3 months’ imprisonment along with the mandatory minimum disqualification period of 5 years.

15     Applying the sentencing framework set out in Chen Song v Public Prosecutor and ors [2024] SGHC 129 (“Chen Song”) for offences punishable under section 65(3)(a), the Prosecution submitted that the present case fell within Band 1 of the framework. This was based on its assessment that there were two primary harm factors and no culpability enhancing factors engaged in this case.

16     While Chen Song indicates that the presence of two harm factors would constitute “greater harm”, which would push the case into Band 2, the Prosecution took the view that based on a holistic assessment of the harm factors, it was still appropriate to place the present case within Band 1 of the framework.

17     Within the Band 1 sentencing range, the Prosecution submitted that the appropriate starting point was around 3 to 4 months’ imprisonment, which then could be adjusted downward to 2 to 3 months’ imprisonment to account for the accused’s plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines on Reduction in Sentence for Guilty Pleas (“PG Guidelines”).

Defence’s sentencing submission and mitigation

18     The Defence submitted that a fine of $2,500 to $3,000 and mandatory minimum disqualification period was appropriate in the present case.

19     With reference to the Chen Song framework as well, the Defence argued that there was only one primary harm factor in the present case in light of the surgery that the victim underwent. The Defence highlighted that there was only one injury in this case, which was not in a vulnerable location of the body and had healed well. There was also no indication that the injury was permanent or that it would have any impact of the victim’s livelihood.

20     As for the accused’s culpability, the Defence argued that there were no culpability factors present since there was no dangerous driving behaviour or any flouting of traffic rules and regulations. It emphasised that the accused had not been speeding and had stopped to check for oncoming traffic. While the Defence confirmed the position that the accused had not noticed the victim at all, it argued that the level of carelessness was nevertheless low and his ought not to be considered as exhibiting a high level of carelessness.

21     In arguing that a fine was an appropriate sentence in the present case, the Defence cited the case of Erh Zhi Huang Alvan v Public Prosecutor (“Alvan Erh”), which appeal was one of the cases heard in the Chen Song decision. The High Court had allowed the appeal in Alvan Erh and substituted a sentence of 10 weeks’ imprisonment with a fine of $4,000.

22     The offender in Alvan Erh had failed to keep a proper lookout while abruptly changing lanes during peak hour on an expressway, which led to a collision with a motorcyclist. The victim there suffered a traumatic amputation of the right little finger and a right sided clavicle fracture, for which he was given 58 days of hospitalisation leave. The High Court had noted that while there was permanent injury caused to the victim in the form of the amputated finger, there was no evidence of any permanent hand disability.

23     The Defence argued that the harm in the present case was less serious than that in Alvan Erh, since there was no permanent injury suffered by the victim in this case. It also highlighted that there was little to no potential harm in the present case given that the accident happened late at night and given that the victim was the only pedestrian at that time.

24     Emphasis was placed on the fact that this was the first time that the accused had been charged for a traffic offence in 40 years of driving, and the fact that he had pleaded guilty within Stage 1 of the PG Guidelines, cooperated with authorities and rendered assistance to the victim.

Reasons for the sentences imposed

Punishment provisions

25     Section 65(3)(a) of the RTA provides that an offender who has caused grievous hurt by committing an offence under section 65(1) is liable to a fine not exceeding $5,000, or to imprisonment for a term not exceeding 2 years or to both.

26     Under section 65(6)(d) of the RTA, a court who convicts a person of an offence under section 65(3)(a) must order that the person be disqualified from holding or obtaining a driving licence period of not less than a period of 5 years, unless the court for special reasons thinks it fit to not order or to order otherwise.

The applicable sentencing frameworks

27     As referenced in the submissions made by both parties, the applicable sentencing framework for the offence in this case is set out in Chen Song, where the High Court set out a sentencing framework for offences punishable under section 65(3)(a) and section 65(4)(a) of the RTA.

28     At the first step, the sentencing court is to identify the number of offence-specific harm and culpability factors.

29     Under “harm” factors, the High Court distinguished between primary and secondary harm factors, with each primary harm factor counting as one offence-specific factor going towards harm, while secondary harm factors, where significant, would go towards where the offence falls within the indicative sentencing band. Primary harm factors are those that pertain directly to the bodily injury suffered by the victim(s) in the case, which include: (i) nature and location of the injury, (ii) degree of permanence, and (iii) impact of the injury. The secondary harm factors identified were: (i) potential harm, and (ii) property damage.

30     The non-exhaustive list of “culpability” factors identified include: (i) any form of dangerous driving behaviour, (ii) flouting of traffic rules and regulations, and (iii) high degree of carelessness.

31     At the second step, the court is to identify the applicable sentencing band based on the number of offence-specific factors present. In this regard, the High Court held that:

(a)     If there are 0 to 1 harm or culpability factors, there will be “lesser harm” and “lower culpability” respectively; and

(b)     If there are 2 or more harm or culpability factors, there will be “greater harm” and “higher culpability” respectively.

32     At the third step, the sentencing court is to identify the indicative starting point within the sentencing band, having regard to all the primary harm and culpability factors identified, as well as the secondary harm factors.

33     Finally at the fourth step, appropriate adjustments may be made to the starting point by taking into account offender-specific factors.

Assessment of the level of harm

34     I agreed with the Prosecution that two of the primary harm factors had been engaged in the present case, namely: (i) nature and location of the injury, and (ii) impact of injury.

35     Based on the medical report of the victim, it appeared that multiple fractures were sustained – there were fractures of the right acetabular, as well as an undisplaced fracture of the right inferior pubic ramus. The Defence had argued there was only one injury, and while I accept that the fractures were indeed concentrated in the pelvic area of the body, I did not think it was entirely accurate to consider it a single injury.

36     I also disagreed with the Defence that the injuries were not in a vulnerable part of the body. While it is certainly not as vulnerable a part such as the head or chest, the pelvic area is clearly a critical part of the body for overall movement.

37     The victim underwent surgery for the acetabular fractures, which is also relevant in considering the nature and location of the injury. The medical report indicated that the post-operation recovery was complicated by “possible hospital acquired pneumonia”.[note: 2]

38     As for the impact of injury, I noted that the period of hospitalisation was not insubstantial, at 15 days. In total, he was given 45 days of hospitalisation leave. The medical report also noted that he was placed on physiotherapy, which started whilst he was inpatient and was expected to last for at least the next 3 months.

39     I was mindful of the High Court’s comment at [127] of Chen Song that even where two or more primary harm factors apply, but if presented only to a limited degree, then the court may nevertheless consider that “lesser harm” had been caused based on a holistic assessment of the harm caused.

40     In my view, the “nature and location of the injury” ought to be considered as 1 primary harm factor. As for the “impact of injury”, I was of the view that this was engaged but only to a limited degree – the periods of hospitalisation, hospitalisation leave and physiotherapy whilst substantial, were not inordinately long. There was also no indication that the victim’s ability to carry out daily tasks and maintain his livelihood had been affected by the injuries.

41     Thus, I agreed with parties that the overall assessment of harm in this case would be considered as “lesser harm”, though in my view, this was at the higher end of “lesser harm”.

42     None of the secondary harm factors were engaged in this case, since there was no property damage caused and there did not appear to be any significant potential harm given the lack of other road users in the area at the time of the accident.

Assessment of the level of culpability

43     On the issue of culpability, I was similarly with parties that this was a case involving “lower culpability”. I accepted that there were no dangerous driving behaviours exhibited, nor had the accused flouted any traffic rules and regulations.

44     As for the degree of carelessness, bearing in mind that the victim was crossing the road at a signalised pedestrian crossing where the light was in his favour, it was remarkable to me that the accused had completely failed to notice the victim as he made the turn, which to my mind is indicative of how poor a lookout he was keeping. This was not a pedestrian at a non-designated crossing where it might be argued that a driver might not expect pedestrians to be, but a signalised pedestrian crossing that was on the green signal for pedestrians.

45     That said, I noted that the High Court in Chen Song held (at [131(c)] and [132]) that when considering the culpability factor of “higher degree of carelessness”, there ought to be a prolonged or sustained period of inattention, as opposed to a momentary lapse of attention. As such, I did not consider the culpability factor of “higher degree of carelessness” to be engaged in this case, though as I have explained above, I emphasise that the level of carelessness was by no means low.

Indicative starting point

46     The High Court in Chen Song held (at [137]) that the custodial threshold would typically be crossed where there are 2 or more offence-specific harm and/or culpability factors present. I also bore in mind the High Court’s guidance that fines would ordinarily be reserved for cases where 0 to 1 offence-specific harm and/or culpability factors are present. In my view, there was clearly more than 1 offence-specific harm and/or culpability factors present in this case.

47     Taking all the harm and culpability considerations into account, I was of the view that the custodial threshold had been crossed. This was because there were two primary harm factors had been engaged, albeit with one being engaged to a limit extent, giving rise to an overall assessment of harm being at the higher end of “lesser harm”, along with my view that the degree of carelessness was by no means low.

48     The custodial sentencing range within Band 1 goes up to 6 months’ imprisonment, and in my view the appropriate indicative starting point for this case ought to be toward the lower end of the custodial range, at around 1 to 2 months’ imprisonment.

Offender-specific factors

49     Turning to the offender specific factors in this case, it would be aggravating if the offender had relevant traffic antecedents. As I noted above, it appeared that the accused had a history of related antecedents but given the Prosecution’s position that they were not relying on them, I did not place reliance on them.

50     The main offender specific factor that applied in this case was the accused’s plea of guilt. I noted that the accused had indicated his intention to plead guilty within Stage 1 of the PG Guidelines, and I accepted he ought to be given the appropriate reduction in sentence in accordance with the PG Guidelines.

51     Thus, from the starting point of 1 to 2 months’ imprisonment, I calibrated the sentence downwards and arrived at 3 weeks’ imprisonment, which in my view adequately and appropriately reflected the overall criminality of the accused in this case.

52     I did not think that there were any special reasons not to impose a disqualification period below the mandatory minimum period of 5 years in this case.

Comparison with Alvan Erh

53     I considered the case of Alvan Erh, which the Defence had cited as a point of reference. Notwithstanding that the applicable sentencing framework that applied in Alvan Erh was the framework established in Sue Chang (Xu Zheng) v Public Prosecutor [2023] 3 SLR 440 (“Sue Chang”) and not the Chen Song framework, I agreed that it was nevertheless a helpful reference point given that the High Court had taken the view in Chen Song (at [120]) that the application of the modified Tang Ling Lee sentencing bands approach that was eventually laid down in Chen Song and the framework in Sue Chang would likely result in same or similar outcomes.

54     The Defence argued that the injuries sustained by the victim in Alvan Erh were more serious than that in the present case. It was emphasised that the victim in Alvan Erh’s case had suffered a permanent injury in the form of the amputated little finger, whereas there were no such permanent injuries in the present case. Bearing in mind that the assessment that there were no culpability enhancing factors in both this case and Alvan Erh, the Defence argued that the less serious injuries in the present case ought to translate to a lower sentence than that which was imposed in Alvan Erh.

55     In this regard, I think that the focus on the permanent nature of the injury suffered by the victim in Alvan Erh can be an unhelpful distraction in the assessment of overall harm. Understandably, any indication of permanence suggests a certain level of severity of the injury. However, it is important to engage – as the High Court emphasised in Chen Song (at [127]) – in a holistic assessment of the harm factors.

56     Whilst the victim in Alvan Erh suffered a permanent loss of his little finger, the High Court noted that there was no indication of any permanent disability that resulted from this injury and that he had in fact been medically assessed as being likely to be able to return to work. Apart from this, he also suffered a right clavicle fracture, though it is not apparent that there was any surgical intervention required for this injury. While the victim here was given 57 days of hospitalisation leave, this included just one day of hospitalisation, as he was discharged the day after the accident occurred.

57     In contrast, the victim in the present case suffered multiple fractures to the pelvic area, which to my mind can be considered a more sensitive or vulnerable part of the body than the little finger or the clavicle. The victim required surgery for the fractures and was hospitalised for 15 days, during which time he had post-operation complication in the form of “possible hospital acquired pneumonia”. While his overall period of hospitalisation leave was shorter than that in Alvan Erh, it should be noted that the victim here was expected to be on physiotherapy for at least 3 months.

58     Assessing these factors holistically, in my view the level of harm cannot be said to be less serious than that in Alvan Erh and ought to be considered slightly more aggravated than Alvan Erh. Accordingly, I did not think that the sentence imposed in this case was out of step with the outcome in Alvan Erh.

Conclusion

59     For the reasons set out above, I sentenced the accused to 3 weeks’ imprisonment and a disqualification period of 5 years with effect from his date of release.

60     A stay of execution was granted on the imprisonment term as well as the disqualification order. The accused is presently on bail pending appeal.

[note: 1]Notes of Evidence at page 3, line 13

[note: 2]Exhibit P2, Medical Report dated 21 December 2022

"},{"tags":["Criminal Law – Offences – Sexual offences – Sexual exposure","Criminal Procedure and Sentencing – Sentencing – Persistent offenders"],"date":"2024-09-02","court":"Magistrate's Court","case-number":"Magistrate Arrest Case No 904223 of 2024","title":"Public Prosecutor v Keong Hock Lai","citation":"[2024] SGMC 63","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32064-SSP.xml","counsel":["Lynda Lee (Attorney-General's Chambers) for the Public Prosecutor","Accused self-represented."],"timestamp":"2024-09-06T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Keong Hock Lai

Public Prosecutor v Keong Hock Lai
[2024] SGMC 63

Case Number:Magistrate Arrest Case No 904223 of 2024
Decision Date:02 September 2024
Tribunal/Court:Magistrate's Court
Coram: Paul Quan
Counsel Name(s): Lynda Lee (Attorney-General's Chambers) for the Public Prosecutor; Accused self-represented.
Parties: Public Prosecutor — Keong Hock Lai

Criminal Law – Offences – Sexual offences – Sexual exposure

Criminal Procedure and Sentencing – Sentencing – Persistent offenders

2 September 2024

District Judge Paul Quan:

Introduction

1       It was a Friday morning during the mid-year school holidays. The victim, who was then 14 years old, went to Woodlands Regional Library with her mother to return and borrow books on 7 June 2024. While she was browsing at the library, she chanced upon the accused, Keong Hock Lai (“Mr Keong”), a 51-year-old Malaysian national, who is also a Singapore Permanent Resident, masturbating in a sofa with his penis exposed. Mr Keong made eye contact with the victim and smiled at her. This distressed the victim and she quickly left to look for her mother, who in turn informed the librarian. The librarian then called the police but Mr Keong had left the library by that time.

2       Mr Keong has pleaded guilty to a charge of sexual exposure under section 377BF(1) of the Penal Code 1871 (2020 Rev Ed). Mr Keong went to the library to charge his mobile phone. When he saw female patrons at the library, he felt aroused and decided to masturbate himself at the library. For the purpose of obtaining sexual gratification, he intentionally exposed his penis in the act of masturbation for 35 seconds. When the victim caught him in the act, he did not stop but instead smiled at her after making eye contact, intending for her to see his exposed penis. He did so obviously without the victim’s consent because she chanced upon his indecent exposure unsuspectingly. All the essential elements of section 377BF(1) of the PC are therefore satisfied.

3       Mr Keong must be punished with imprisonment that may extend to a year and/or fine. The prosecution has sought to impose an imprisonment term of between eight to ten weeks on Mr Keong based on the principle of deterrence, the harm caused to the victim and Mr Keong’s similar criminal antecedents. Mr Keong has pleaded for the court’s leniency. He promised to mend his ways, keep himself busy with work so that he would not have idle thoughts, and remain at home after coming back from work.

4       I sentence Mr Keong to two months’ imprisonment. I set out the reasons for my decision.

Issues to be decided

5       There are three main issues I have to decide in this case:

(a)     first, the operative sentencing principle(s) that should inform my sentencing decision;

(b)     second, the harm caused by Mr Keong’s offence and his culpability in the offence; and

(c)     third, the aggravating and mitigatory weight to be given to relevant factors personal to Mr Keong that present themselves in this case.

6       I resolve the issues in this way:

(a)     the dominant sentencing considerations are deterrence and retribution. Mr Keong must be suitably deterred but also held accountable according to the severity of the offence and the level of his culpability. Like-minded sex fiends must be deterred against “flashing” to satisfy their perverted sexual urges or cause humiliation, alarm or distress to their victims;

(b)     the harm caused to the victim is serious, considering her age, what she saw, and how Mr Keong responded to her when he realised her presence. Mr Keong’s indecent exposure was wholly culpable, having regard to the audacity of the particular nature of his conduct; and

(c)     Mr Keong’s similar criminal antecedents are aggravating. There is no evidence to suggest he was labouring under any mitigating medical or psychological condition at the time of the offence. On the contrary, he did not show any guilt, remorse or contrition even when he was literally caught with his pants down and engaging in his dastardly act. In his favour was his early indication of guilty plea and only because by doing so, he has spared the young victim of having to testify against him in court in a trial.

Analysis of issues

7       I analyse the issues in turn.

Issue 1: Deterrence as dominant sentencing principle

8       The operative sentencing consideration in this case is deterrence. The imposition of a custodial term even for first-time offenders underscores the need to meet the ends of general deterrence. This has been expressed in PP v Tan Chen Chek, unreported, Magistrate Arrest Case 908125 of 2022 at [27], [29] and [30]:

With the new offence created to update the law and criminalise sexual exposure, and the prevalence of the offence of “flashing” where offenders intentionally expose their genitalia without the victim’s consent, … the court should send a clear signal to would-be offenders that a custodial sentence would be imposed in the ordinary course, and this in turn, would serve as a stronger deterrent effect.

…

…[T]he more recent sentences imposed by the court do reflect the current judicial attitude and abhorrence towards such offences, and that a custodial sentence could still be visited on a first-time offender.

In the final analysis… a custodial sentence is appropriate to send a clear message to deter like-minded offenders from committing such offences, and that a fine would be warranted only in exceptional circumstances.

9       Unequivocal disapprobation of perverse sexual exposure will suitably disincentivise like-minded offenders. With the threat of deterrent punishment hanging above them like the proverbial Damoclean sword, they are likely to think twice about acting on their sexual urges or carrying out their mischief. This is all the more so in the context of public spaces, where members of the public should have the right to enjoyment, and should not have to be subjected to the traumatic experience of witnessing deliberate and intentional sexual exposures. In Mr Keong’s case, specific deterrence comes sharply into focus because this is not his first foray into this genre of sexual offences; in fact, his offending conduct on this occasion has worsened and the principle of escalation should be pressed into service to also meet the ends of specific deterrence.

10     Having said this, deterrence should not be indiscriminately used as a sledgehammer with which to crush offenders, and has to be tempered with retributive considerations so that the punishment always fits the crime and the criminal. This segues into the analysis of the next two issues that focus on considerations of the relevant offence-specific and offender-specific factors at play in this case.

Issue 2: Offence-specific harm-culpability analysis

11     Retributive justice circumscribes deterrence by its insistence on punishment being proportionate to the severity of the offence and the offender’s level of culpability: Tan Kay Beng v PP [2006] 4 SLR(R) 10 at [31].

Harm caused is serious

12     In this case, the level of harm inflicted on the victim is serious because of her age, what she had witnessed and how Mr Keong responded to her when he realised her presence.

13     The victim was 14 years old at the time of Mr Keong’s offence. She barely crossed the statutory age that would otherwise have subjected Mr Keong to the enhanced punishment regime under section 377BF(4) of the PC. That the enhanced punishment provision does not apply in this case does not change the fact that Mr Keong sexually exposed himself to a young victim.

14     The victim not only had to witness Mr Keong exposing himself in a public space that she was free to access and enjoy; she has had to endure this distressing sight in the context of him engaging in the lewd act of masturbation.

15     This is all the more serious when the manner in which Mr Keong responded to the victim, after she caught sight of what he was doing, is considered. Instead of stopping whatever he was doing after making eye contact with her, he smiled at her instead. This would have increased the level of distress that the victim was experiencing considerably, having already had to process witnessing Mr Keong intentionally exposing himself and engaging in a lewd act deal after stumbling unsuspectingly upon him. She was sufficiently distressed to exit that uncomfortable scene quickly to look for her mother.

Mr Keong’s culpability is high

16     Mr Keong’s culpability is high. It was an audacious act of perversion because of the cumulative effect of four reasons:

(a)     first, it violated such a wholesome public space and caught the victim unawares, interfering with her right to enjoyment of such a space. Other than the victim who was nearby at the time when he was exposing himself and engaging in his lewd act, there was a female patron in the sofa next to his and another who was browsing in the vicinity;

(b)     second, he was shockingly indiscreet. The victim saw him with his knee-length shorts partly pulled down and he wore no underwear;

(c)     third, this was not a typical “flashing” offence. The sexual exposure was in the context of a more egregious lewd act of masturbation; and

(d)     fourth, the most damning is the deeply disturbing extent of his sexual depravity. When the victim came into his line of sight, this did not jolt his conscience that he was actually exposing a minor to his depraved act and stop him in his tracks. Indeed, he had been engaged in the lewd act for 35 whole seconds and was not merely exposing or touching himself fleetingly.

Issue 3: Offender-specific analysis of personal aggravating and mitigating factors

17     I next consider the aggravating and mitigatory weight to be accorded to the relevant factors personal to Mr Keong that present themselves in this case.

Similar antecedents aggravating and principle of escalation applies

18     Mr Keong is not a first offender and has similar criminal antecedents for:

(a)     insulting the modesty of a woman under section 509 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC 1985”) and was fined S$600 in 1992; and

(b)     doing an obscene act in public under section 294(a) of the PC 1985 and was sentenced to one month’s imprisonment in 2003.

The previous fine and imprisonment term obviously did not deter Mr Keong from re-offending. The principle of escalation is clearly applicable in this case to meet the ends of specific deterrence. This entails invoking an escalation in sentence to cumulatively increase his sentences to deter him: PP v Low Ji Qing [2019] 5 SLR 769 at [58] and [59]. He is deterrable by such an escalation because he clearly possesses some insight into his offending behaviour from his oral mitigation, but the opportunity cost of crime was obviously not prohibitively high to make him think twice about reoffending.

19     The maximum prescribed punishment for the present sexual exposure offence is the same as that for public obscenity under section 294(a) of the PC 1985, to which he had pleaded guilty. For this latest occasion of re-offending and having regard to my harm-culpability assessment, I double the length of Mr Keong’s last custodial term (for the offence under section 294(a) of the PC 1985) and impose a sentence of two month’s imprisonment on him.

Reduction in sentence for early guilty plea does not apply

20     Adopting the Sentencing Advisory Panel’s recommendation in its guidelines, Mr Keong should be accorded the full 30% reduction in sentence for his early indication of guilty plea, but in this case only because he has spared a young victim of having to testify against him in a trial, even though he showed no sign of guilt, remorse or contrition by his act of smiling at the victim when he was caught in the act. However, since the sentence for Mr Keong’s present offence is based on doubling his last sentence (that arose from him pleading guilty to his public obscenity offender under section 294(a) of the PC 1985), the 30% reduction should not be applied over and above that already discounted plead-guilty sentence.[note: 1]

Conclusion

21     Both the ends of deterrent and retributive justice are aligned in this case. The nature of the offence was serious, as was the nature of the offending conduct that reflected a high level of culpability. This was coupled with Mr Keong’s aggravating similar criminal antecedents. Although he showed an utter lack of remorse at the time of the offence, Mr Keong spared the victim of the secondary trauma of having to testify against him in a trial by pleading guilty, to which due credit is given.

Sentence of two months’ imprisonment imposed

22     As such, I sentence Mr Keong to two months’ imprisonment on the sexual exposure charge, which effectively doubles his last custodial term for his public obscenity offence. I also backdate his sentence to 7 June 2024 when he was first arrested to take into account the period(s) of custody and to exclude the bail period from 21 June 2024 till date.

[note: 1]Sentencing Advisory Panel, “Guidelines on Reduction in Sentences for Guilty Pleas” <https://www.sentencingpanel.gov.sg/files/Guidelines/guidelines on reduction in sentences for guilty pleas.pdf> (15 August 2023) at para 10.

"},{"tags":["Criminal Law – Statutory Offences – Prevention of Corruption Act","Criminal Procedure – Newton hearing"],"date":"2024-08-30","court":"District Court","case-number":"District Arrest Case No 920868 of 2020 and others, Magistrate's Appeals No 9022 of 2024-01","title":"Public Prosecutor v Rajavikraman s/o Jayapandian","citation":"[2024] SGDC 223","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32059-SSP.xml","counsel":["David Menon, Janice See and Ben Mathias Tan (Attorney-General's Chambers) for the Public Prosecutor","Adrian Wee Heng Yi and Lynette Chang Huay Qin (Lighthouse Law LLC) for the Accused."],"timestamp":"2024-09-06T16:00:00Z[GMT]","coram":"Ronald Gwee","html":"Public Prosecutor v Rajavikraman s/o Jayapandian

Public Prosecutor v Rajavikraman s/o Jayapandian
[2024] SGDC 223

Case Number:District Arrest Case No 920868 of 2020 and others, Magistrate's Appeals No 9022 of 2024-01
Decision Date:30 August 2024
Tribunal/Court:District Court
Coram: Ronald Gwee
Counsel Name(s): David Menon, Janice See and Ben Mathias Tan (Attorney-General's Chambers) for the Public Prosecutor; Adrian Wee Heng Yi and Lynette Chang Huay Qin (Lighthouse Law LLC) for the Accused.
Parties: Public Prosecutor — Rajavikraman s/o Jayapandian

Criminal Law – Statutory Offences – Prevention of Corruption Act

Criminal Procedure – Newton hearing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9022/2024/01.]

30 August 2024

District Judge Ronald Gwee:

1       The High Court set out the sentencing framework for private sector corruption offences under ss 6(a) and 6(b) of the Prevention of Corruption Act (“PCA”) in Goh Ngak Eng v PP [2023] 4 SLR 1385 (“Goh Ngak Eng”).

2       In these present Grounds of Decision, references to “Goh Ngak Eng” relate to the High Court decision, and references to “Goh” relate to the accused person in that case, one Goh Ngak Eng.

3       Goh was involved in a conspiracy with one Rajavikraman s/o Jayapandian (“Rajavikraman”) and one other person we shall refer to as “Lim”, to corruptly receive gratification.

4       The facts of the case (so far as they relate to Goh) are set out in [7] to [12] of Goh Ngak Eng.

5       The said Rajavikraman is the person who pleaded guilty before me, to 16 charges, and admitted and consented to 33 other charges being taken into consideration for purposes of sentencing.

6       When Rajavikraman’s guilty plea was taken before me, the Statement of Facts (“SOF”) was read out to Rajavikraman. The SOF in relation to Rajavikraman (in its entirety) presented facts consonant with the circumstances related to Goh in his case. Save for three issues, Rajavikraman admitted to the SOF without qualification.

7       The Prosecution and the Defence were both in agreement that Rajavikraman’s non-acceptance of these three issues did not qualify his guilty plea. I agreed with parties on this, and a Newton hearing was thus convened before me to determine these three issues. These three issues would affect sentence but would not otherwise affect Rajavikraman’s guilty plea.

8       The first issue was, “Whether it was Goh or Rajavikraman who first proposed the corrupt arrangement;”.

9       The second issue was, “Whether it was agreed between Goh and Rajavikraman that the balance of the marked-up amounts would be shared equally between themselves;”.

10     The third issue was, “What was the total amount of the gratification Rajavikraman personally received from the corrupt arrangement.”

11     With regard the first issue, the Prosecution’s assertion was that it was Rajavikraman who proposed the corrupt arrangement. This was a position consonant with the facts in Goh’s case. The Defence asserted a contrary position, in that it was Goh who proposed the corrupt scheme to Rajavikraman.

12     With regard the second issue, the Prosecution’s assertion was that it had been agreed between Goh and Rajavikraman that the balance of the marked-up amounts would be shared equally between themselves. This was a position consonant with the facts in Goh’s case. The Defence asserted that although there had been an agreement that Rajavikraman would receive part of the balance of the marked-up amounts, there had been no (specific) agreement that Rajavikraman would receive 50% (as asserted by the Prosecution).

13     With regard the third issue, the Prosecution asserted that Rajavikraman received a total of $191,115.89 as corrupt payments for the scheme involving himself, Goh and Lim. This was consonant with the facts in Goh’s case (in [11] of Goh Ngak Eng, it is stated that Goh and Rajavikraman each received $191,115.89, as fruits of their respective corrupt endeavours). The Defence asserted that Rajavikraman had received a total sum of “no more than S$28,000”.

14     The Prosecution had the burden of proving its assertions for the three issues, beyond a reasonable doubt.

15     At the Newton hearing, the Prosecution called Goh as its sole witness. The Defence called Rajavikraman as its sole witness. After hearing all the evidence and having considered the closing submissions of each party (in written form as well as their oral replies), I found that the Prosecution had proven its case for each of the three disputed issues beyond a reasonable doubt.

16     I therefore found, in relation to the three issues, that it was Rajavikraman who proposed the corrupt arrangement to Goh; that it had been agreed between Rajavikraman and Goh that the balance (after the earlier agreed deductions) was to be shared equally between the two of them, namely Rajavikraman and Goh; and that the total sum received as gratification by Rajavikraman was the sum of $191,115.89.

17     Before I delivered my findings after the Newton hearing, I made the following brief, oral remarks (delivered ex tempore and captured verbatim from the transcript of the Notes of Evidence.

18     (Start of oral remarks) “I think for the first two issues, the evidence was quite clear as to the findings I’m about to make. Upon consideration of all the evidence that has been heard, I would state that in respect of the first issue and that was whether it was Goh or the accused who proposed this corrupt arrangement, my finding is that it was the accused who proposed the corrupt arrangement to Goh. Primarily, the accused was the one with the direct contact with the person whom I shall just name as Alvin in this particular case, and the circumstances showed, as well as from the evidence given by Goh, that he was the one that, sorry, that the accused was the one who proposed this arrangement.

Issue number two is similarly from, to my mind, quite clear cut from the evidence that there was an agreement - whether it was an agreement initially or somewhere along the line - there was an agreement between the accused and Goh that the balance after the payments have been made would be shared equally between the two of them.

The third issue was the one which I invited parties to make further submissions. I’d come to a preliminary finding on this but I wanted to see if there was anything more that prosecution and defence had to say in this matter. I’ve carefully considered what both prosecution and defence have said in their respective submissions. Sometimes, it requires a look back at what it is that we are looking at. Looking again at the well, at least the first 15 of the 16 proceeded charges, those that involve the accused and Goh and the person named Alvin, leaving aside the charge that only involves Goh, it was that the accused had pleaded guilty to having abetted by engaging in a conspiracy with Goh and as well as with the person called Alvin. And the charge goes on to say that a certain sum was obtained by Goh, and this sum was for himself sorry, for the accused, Alvin as well as Goh, and this follows through all the proceeded charges, only difference of obviously being the dates as well as the sums involved and the persons from which these figures had been obtained. Now, one point that the prosecution makes is that and this is something that has to be pointed out. It is rare, in fact, in any corruption case where there’s evidence of any form which seems to show the actual sums that are involved. I note the defence’s submissions as to how accurate these sums are to be taken but I would agree with the prosecution that the purpose of this was to document, in that sense, the payments that were to be made from each of the invoice payments that were incoming. Now, I do take note that the actual figures in NHP1 may not have been directly entered by Goh himself but I’m satisfied that Goh was himself satisfied as to the accuracy of these figures that had been entered into the Excel spreadsheet. And it has been pointed out, and I think the prosecution points out to that extent, and I would just add that this was a spreadsheet that Goh was making available in that sense for the perusal of the accused as well as Alvin to see at any point whether any party had been short-changed. To that extent, looking at the procedure and the process as a whole, I accepted the prosecution’s point that the Court in this particular case could accept NHP1 in its entirety insofar as the figures that it states are accurate in terms of the payments that are due or said to be due to the person named Alvin and, in particular, the sums that were due and ultimately paid to the accused. There had not been in evidence, at least, any challenge on any of these payments that had been made during the currency of the corrupt arrangements between the parties involved.

Therefore, it’s stated I found for issues one and two in favour of the prosecution’s assertion. Just to summarise, that it was the accused who proposed the corrupt arrangement. And issue two that it had been agreed between the accused and Goh that the balance was to be shared equally between the two of them. And in respect of issue three, I agreed with the prosecution’s assertion that the Court in this particular case could, despite there may that despite the fact that there may have been less than 100% accuracy, and to that extent, I accept the prosecution’s point that this was not, in that sense, meant for an audit but it was meant for parties to be able to see, if such was required to be seen, the sums that were to be paid from the series of corrupt transactions. And to that extent, I accepted the prosecution’s submissions as I said, but I could accept NHP1 as a whole as representing an accurate representation insofar, at least, of the sums that were paid to the accused. And, therefore, in respect of issue three, I find for the prosecution’s assertion that the accused had received a total of $191,115.89 as asserted by the prosecution.” (end of oral remarks).

19     As far as the evidence was concerned, (leaving aside the third issue temporarily), the first and second issues were quite clearly to be found in the Prosecution’s favour. It had been Rajavikraman who was familiar with Lim and this connection was vital to facilitate the corrupt arrangement between Rajavikraman and Goh (and involving Lim – named as “Alvin” in the oral remarks). Rajavikraman was keenly aware of the role Lim played and how the weaknesses of Lim’s company’s processes could be exploited.

20     During the currency of the corrupt transactions, it was Rajavikraman (rather than Goh) who had been mainly liaising with Lim. On the whole, I believed Goh’s evidence on this point: indeed, as the Prosecution asserted, Goh had no reason to lie. Goh had pleaded guilty to a set of facts consonant with the SOF (in its entirety) in Rajavikraman’s case, and had been sentenced for his role in the corrupt transactions.

21     With respect to the first and second issues, I had no hesitation in finding for the versions put forth by the Prosecution in the SOF. The evidence on these two issues was quite clearly overwhelming.

22     The third issue raised interesting angles. In many corruption cases, the amount of gratification that is agreed between parties is very often a round figure or a convenient figure to ascertain. In the present case, Rajavikraman had agreed with Goh that they were to share equally the balance of the marked-up prices after the deductions for Lim’s share and for the payment of corporate tax. Each invoiced amount would therefore result in a different base amount upon which the agreed calculations were to be applied.

23     This is where the spreadsheet prepared by Goh entered the picture. This piece of evidence provided a “checklist” from which Lim, Goh or Rajavikraman could satisfy themselves that the amounts due to them from each corrupt transaction represented the correct amount.

24     Upon a careful consideration of the evidence heard at the Newton hearing, and the respective submissions on this point, I found that the Prosecution had proven its case on this point with regard the total gratification received by Rajavikraman over the course of the corrupt transactions.

25     There had apparently been no challenge (during the currency of the corrupt transactions) in particular from Rajavikraman, that any of the figures in the spreadsheet maintained by Goh had been erroneous: especially with regard to the respective sums Rajavikraman would have been “entitled” to.

26     I found in favour of the Prosecution’s position regarding the third issue. Rajavikraman had received a total sum of $191,115.89, and I so found.

27     After my findings from the Newton hearing, the sentencing for Rajavikraman was next to be considered. The Prosecution had proceeded against Rajavikraman for the 15 charges that represented “mirrored” charges that Goh had pleaded guilty to, and were referred to as the “Conspiracy Charges” in Goh Ngak Eng (charges involving the conspiracy involving Rajavikraman, Goh and Lim), and one charge (DAC-920915-2020) involving only Rajavikraman and Goh (referred to as one of the “Non-Conspiracy Charges” in Goh Ngak Eng). A Table (adapted from a table presented by the Prosecution) showing the sentences Goh received after his appeal to the High Court, and the comparative sentences sought by the Prosecution and the Defence for Rajavikraman, is shown in the following paragraph, [28]. The parties had indicated that three of the sentences (for the same “mirrored” charges for which Goh had been sentenced for in the High Court) should be made to run consecutively.

28     (Table proper appears on the following page.)

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29     The Prosecution’s submission represented a significant uplift from the sentences received by Goh (both for individual sentences as well as for the global sentence sought). The Defence submitted for sentences (individual and global) that were slightly below the level of Goh’s sentences.

30     The differentiation in the sentences imposed on Goh and the sentences to be imposed on Rajavikraman would turn largely on a comparison of the respective levels of culpability of Goh and Rajavikraman.

31     I carefully considered the respective submissions on sentence. I also took into account the Mitigation Plea.

32     I agreed with the Prosecution that in terms of culpability, Rajavikraman was more culpable than Goh. It was Rajavikraman who proposed the corrupt scheme to Goh. The actions of Rajavikraman during the currency of the events of the corrupt scheme also tilted the balance towards a finding of greater culpability on the part of Rajavikraman. Rajavikraman had played a greater role in liaising with Lim. I could not agree with the Defence that Rajavikraman deserved sentences lower than what Goh received.

33     However, I could not agree with the scale of the calibration upwards of the sentences as proposed by the Prosecution. Whilst I agreed that the individual sentences as well as the global sentence ought to factor in an uplift due to the higher culpability, I calibrated the sentences proposed by the Prosecution downwards. Therefore, the sentences meted out by this Court can be seen in the (further adapted) Table set out in the following paragraph, at [34].

34     (Table proper appears on the following page.)

S/N

DAC No.

Amount (S$)

Sentence imposed on Goh

Sentence Sought by Prosecution for Rajavikraman

Sentence Proposed by Defence for Rajavikraman

Sentence Imposed by the Court for Rajavikraman

1.

DAC-920868-2020

107,000.00

(Keh Choon / Titan)

15 months’ imprisonment

(consecutive)

20–22 months’ imprisonment

(consecutive)

13 ½ months’ imprisonment (consecutive)

17 months’ imprisonment (consecutive)

2.

DAC-920883-2020

21,835.41

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

3.

DAC-920888-2020

28,784.36

(Stanley/ Spectrama)

11 months’ imprisonment

(consecutive)

14–16 months’ imprisonment

(consecutive)

10 months’ imprisonment (consecutive)

13 months’ imprisonment (consecutive)

4.

DAC-920900-2020

46,170.50

12 months’ imprisonment

16–17 months’ imprisonment

11 months’ imprisonment

14 months’ imprisonment

5.

DAC-920901-2020

34,556.72

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

6.

DAC-920903-2020

36,754.50

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

7.

DAC-920904-2020

37,274.52

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

8.

DAC-920905-2020

43,882.84

12 months’ imprisonment

16–17 months’ imprisonment

11 months’ imprisonment

14 months’ imprisonment

9.

DAC-920906-2020

28,607.52

11 months’ imprisonment

14–16 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

10.

DAC-920907-2020

25,761.32

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

11.

DAC-920908-2020

22,778.16

10 months’ imprisonment

13–15 months’ imprisonment

9 months’ imprisonment

12 months’ imprisonment

12.

DAC-920909-2020

40,086.48

11 months’ imprisonment

16–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

13.

DAC-920910-2020

30,873.78

11 months’ imprisonment

14–16 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

14.

DAC-920911-2020

34,299.92

11 months’ imprisonment

15–17 months’ imprisonment

10 months’ imprisonment

13 months’ imprisonment

15.

DAC-920912-2020

27,623.12

(Fatkullah / Growa)

11 months’ imprisonment

(consecutive)

14–16 months’ imprisonment

(consecutive)

10 months’ imprisonment (consecutive)

13 months’ imprisonment (consecutive)

16.

DAC-920915-2020

3,000

One week’s imprisonment (consecutive for Goh)

Short custodial term

Fine

3 weeks’ imprisonment

Global sentence

37 months and

3 weeks (includes sentence for an unrelated charge)

48-54 months’ imprisonment

33 ½ months’ imprisonment and a fine

43 months’ imprisonment



35     The total sentence meted out to Rajavikraman was therefore imprisonment for a global term of 43 months. He was further ordered to pay a Penalty of $191,115.89 (in default six months’ imprisonment) pursuant to the PCA.

36     Rajavikraman appealed against the sentence imposed as well as the order of the said Penalty. Rajavikraman is currently serving sentence. The Penalty remains unpaid.

37     I was of the view that an uplift of two months’ imprisonment per charge (over the sentences Goh received for the mirrored charges) for the three sentences to be run consecutively, was appropriate in the circumstances to reflect the higher culpability of Rajavikraman, as compared to Goh. It had to be borne in mind that several sentences were ordered to run concurrently, and that there were 33 charges to be taken into consideration.

38     Upon a straight comparison of the sentences received for the Conspiracy Charges: Goh’s (total) sentence for the three mirrored charges was 37 months and the (total) sentence meted out to Rajavikraman was 43 months. I was of the view that the (total) uplift for these sentences run consecutively (amounting to six months), appropriately reflected the difference in culpability in the respective roles in this corrupt campaign.

39     It should also be pointed out that the sentence Goh received for the Non-Conspiracy Charge involving solely himself and Rajavikraman was ordered to run consecutively. For Rajavikraman’s mirrored charge, this sentence was ordered to run concurrently.

40     In the final analysis, I was of the view that the total sentence of 43 months’ imprisonment meted out to Rajavikraman was appropriate and was not crushing in the circumstances. The in default period of six months’ imprisonment in the event the Penalty was not paid, was similarly appropriate, and not excessive.

"},{"tags":["Contract – Contractual terms – Whether lease agreement can be construed as granting option to purchase at the end of lease","Contract – Contractual terms – Entire agreement clause – Whether collateral agreement is precluded"],"date":"2024-09-02","court":"Magistrate's Court","case-number":"Magistrate's Court Originating Claim No. 8528 of 2023","title":"Voo Teck Chuan v Skyway Motor Pte Ltd","citation":"[2024] SGMC 61","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32054-SSP.xml","counsel":["Mohamed Nawaz Kamil and Nadia Ui Mhuimhneachain (August Law Corporation) for the claimant","Hewage Ushan Saminda Premaratne and Choong Guo Yao, Sean (Meritus Law LLC) for the defendant."],"timestamp":"2024-09-04T16:00:00Z[GMT]","coram":"Vince Gui","html":"Voo Teck Chuan v Skyway Motor Pte Ltd

Voo Teck Chuan v Skyway Motor Pte Ltd
[2024] SGMC 61

Case Number:Magistrate's Court Originating Claim No. 8528 of 2023
Decision Date:02 September 2024
Tribunal/Court:Magistrate's Court
Coram: Vince Gui
Counsel Name(s): Mohamed Nawaz Kamil and Nadia Ui Mhuimhneachain (August Law Corporation) for the claimant; Hewage Ushan Saminda Premaratne and Choong Guo Yao, Sean (Meritus Law LLC) for the defendant.
Parties: Voo Teck Chuan — Skyway Motor Pte Ltd

Contract – Contractual terms – Whether lease agreement can be construed as granting option to purchase at the end of lease

Contract – Contractual terms – Entire agreement clause – Whether collateral agreement is precluded

2 September 2024

Judgment reserved.

District Judge Vince Gui:

Introduction

1       The Claimant leased a Mini Cooper Clubman (the “Mini Cooper”) from the Defendant for five years. As the lease came to an end, the Claimant sought to buy the vehicle. The Defendant quoted $96,000. The Claimant insisted on buying it at the “estimated residual value” of $50,046 stated in the lease agreement.

2       Did the lease agreement provide the Claimant an option to purchase the Mini Cooper for the residual value stated? This is the central issue to be determined.

Background facts

3       Mr Adrian Tan Cheng Wen (“Adrian”), a good friend of the Claimant, wanted to purchase a Mini Cooper but fell short in securing a favourable loan. He opted to engage a financing company to acquire the vehicle and lease it to him for an extended period.

4       The arrangement was brokered by a car salesman from Eurokars Habitat Pte Ltd (“Eurokars”), Mr Deryl Tan Rong Hwui (“Deryl”), a friend of Adrian. At that point, Adrian had paid a non-refundable $2,000 deposit to Eurokars.

5       The Defendant purchased the Mini Cooper from Eurokars for $147,000 which was funded as follows:

(a)     $127,000 payment made by the Defendant;

(b)     $2,000 deposit made by Adrian; and

(c)     $18,000 further payment made by Adrian.

6       While the Mini Cooper was to be driven by Adrian, he arranged for the Claimant to sign the lease agreement with the Defendant.

7       By an agreement dated 21 December 2017, the Defendant leased the Mini Cooper to the Claimant for five years between 3 January 2018 to 2 January 2023 with a monthly rent of $2,021 (the “Lease Agreement”). Adrian paid the monthly rent to the Claimant for the next five years.

8       As the lease was expiring, Adrian asked the Defendant for the cost to acquire title to the Mini Cooper on 16 December 2022. The Defendant quoted him $96,000 based on the prevailing market price of similar models. Adrian disagreed, saying the amount payable should be $50,046 as reflected on the Lease Agreement. The Defendant replied saying the amount was merely an estimate.

9       Adrian expressed surprise and urged the Defendant to “honour the agreement”. Adrian followed up with a series of messages to which the Defendant did not respond.

10     The Claimant commenced the present action for breach of contract.

Parties’ pleaded case and submissions

11     The Claimant argued that the Defendant granted the Claimant an option to purchase the Mini Cooper for $50,046 being the residual value assessed by the Defendant. The contractual provision relied upon is clause 4 of the Lease Agreement which states:

4. RENTAL PAYMENT DETAILS

Estimated Residual Value at the end of Hirer [sic] (For reference only): SGD$50,046.00.

12     The Claimant argued that the contra proferentum rule should apply against the Defendant since it was the Defendant who drafted the Lease Agreement.

13     Aside from the Lease Agreement, the Claimant also pleaded and argued that parties entered into a collateral agreement on or around 21 December 2017 granting the same option to purchase to the Claimant. He called it a “lease-to-own” arrangement. The Claimant alleged that the said agreement was made between Deryl and the Defendant’s representative called “Pei Lin”.

14     The Defendant denied having granted the alleged option to purchase whether under the Lease Agreement or otherwise. It argued that it could not have done so as such an arrangement would fall foul of a financial regulation which required the hirer to pay 40% of the downpayment in a hire-purchase agreement. Clause 4 of the Lease Agreement also could not be interpreted to grant an option to purchase the Mini Cooper.

Discussion

15     The burden is on the Claimant to establish the alleged agreement. In my view, the Claimant failed to discharge that burden. Clause 4 says nothing about giving the Claimant the option or right to purchase the vehicle at the end of the lease period. It merely expressed the “estimated residual value” of the vehicle at the end of the lease period.

16     The Claimant argued that clause 4 is ambiguous and any ambiguity should be resolved in favour of the Claimant pursuant to the contra proferentum rule. While there may be some ambiguity in the words “estimated residual value”, the ambiguity only relates to what sort of value it represents. It could mean the estimated scrap value according to the Defendant or the estimated market value of the Mini Cooper. The contra proferentum rule does not give the Claimant the right to re-write the clause into something entirely different. If clause 4 was meant to confer the Claimant an option to purchase the Mini Cooper, it would have used words to that effect. Clause 4 however did not say that. It simply informed parties that the Mini Cooper was “estimated” to have a “residual value” of $50,046 at the end of the lease.

17     The Claimant also highlighted that clause 4 was inserted into the agreement at the Claimant’s insistence, as the Claimant wanted the option to purchase the Mini Cooper at the end of the lease for his own use. He said that was why he was the named hirer whereas Adrian was the named driver. He may well have thought of buying the vehicle. But if he truly wanted the unilateral right to purchase the vehicle, he ought to have insisted that the Defendant include a term to expressly confer him the right to do so. The Defendant explained that it could not have granted such right to the Claimant as it would have fallen foul of the regulations of the Monetary Authority of Singapore (“MAS”) that was applicable to hire-purchase agreements. MAS Notice 642 stipulated that hirers must furnish a minimum 40% downpayment for vehicles of this sort. The Claimant did not furnish the requisite downpayment. He was therefore not legible for hire-purchase. This was why he opted to lease the vehicle instead. The Defendant submitted that it declined to grant the Claimant an option to purchase at the end of the lease as that would turn the lease into a hire-purchase arrangement that was prohibited by the said regulation.

18     The Defendant relied on the case of Hitachi Capital Asia Pacific Pte Ltd v Goh Wee Ling Diana [2020] SGDC 231 which examined a clause similarly worded as clause 4. There, the court held that the clause “Estimated Residual Value (For reference only)” did not mean that the leasor was bound to sell to the lessee at that price. The court reasoned that the words “For reference only” indicates that it was open to the leasor to accept an offer from the lessee to purchase the vehicle at the end of the lease. It was not a binding option for a fixed sum.

19     In my view, clause 4 was at best an agreement to agree. Parties may have inserted this clause in contemplation that the Claimant might want to purchase the Mini Cooper from the Defendant at the end of the lease. The estimated residual value was indicated to give the Claimant an idea of roughly how much it would cost. It was a “lease-to-own” arrangement in that sense. But it was by no means a done deal. The final price, assuming the Defendant agrees to sell, was a matter subject to further discussion and agreement. The words “estimated” and “for reference only” underscore parties’ intention for the residual value to be non-binding. Since there was no agreement on the final purchase price, the Defendant was entitled to quote different amount based on the prevailing market conditions. As it turned out the Certificate of Entitlement (“COE”) prices skyrocketed in the subsequent years, resulting in a corresponding uplift in the market value of second-hand cars. In this regard, the Defendant highlighted that second-hand cars of the same model and vintage were being listed for sale at prices ranging from $99,800 to $102,002 on Sgcarmart.com, an online marketplace for second-hand cars. The previous estimate of $50,046 was no longer viable. It was in those circumstances that the Defendant quoted $96,000.

20     Aside from clause 4, the Claimant alleged in the alternative that parties entered into a collateral agreement for the Claimant to purchase the Mini Cooper at the end of the lease. In my view, this allegation fails for several reasons.

21     First, the allegation is not borne out by the contemporaneous evidence. Deryl who brokered the arrangement with the Defendant, testified that he did discuss the option of purchasing the Mini Cooper at the end of the lease. But the WhatsApp correspondence between him and the Defendant’s representative did not detail any discussion on the alleged option.

22     Second, even on Deryl’s evidence that they did discuss such an arrangement, parties did not reach an agreement on the purchase price. He said the Defendant’s representative told him the final purchase price would be “slightly different” from the amount stated in clause 4. A contract cannot be formed without certainty of terms.

23     Third, the Lease Agreement contains an entire agreement clause. Clause 27 provides that the agreement “embodies all the terms and conditions agreed upon” and “constitutes the final agreement between parties and supersedes and cancels in all respects all previous agreements … whether written or oral”. Having agreed to this clause, it is incongruous for the Claimant to now assert that an oral agreement supposedly existed alongside the Lease Agreement. As the Court of Appeal explained in Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR(R) 537 at [26] (citing Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep 611 (at [7]–[8])):

The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth, and finding, in the course of negotiations, some (chance) remark or statement (often long-forgotten or difficult to recall or explain) upon which to found a claim, such as the present, to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that, accordingly, any promises or assurances made in the course of the negotiations (which in the absence of such a clause, might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given effect in that document.

… [T]he formula used is abbreviated to an acknowledgment by the parties that the agreement constitutes the entire agreement between them. That formula is, in my judgment, amply sufficient to constitute an agreement that the full contractual terms to which the parties agreed to bind themselves are to be found in the agreement and nowhere else. That can be the only purpose of the provision.

[emphasis in original]

24     The Court of Appeal concluded that an appropriately worded provision would be upheld it if clearly purports to deprive any collateral agreement of legal effect.

25     The wording of clause 27 evinces parties’ intention to be bound by the terms of the Lease Agreement and not a prior agreement. The High Court recently found this to be the case for a similarly worded clause in BGC Partners (Singapore) Limited and another v Sumit Grover [2024] SGHC 206 at [28] – [30]. Similar observations were made in Cradle Wealth Solutions Pte Ltd v MTN Consultants & Building Management Pte Ltd and another [2023] SGHC 307 at [83]. The Claimant did not advance any argument or authority that shows otherwise.

26     It remains for me to briefly address the Claimant’s submission that the Court should draw an adverse inference against the Defendant for failing to call its representative with personal knowledge of the disputed facts as witnesses. The Claimant submitted that its sole witness was a representative with no personal knowledge of the disputed transaction, and that the Defendant should have called the representative who brokered the Lease Agreement with Deryl by the name of “Pei Lin”.

27     I am unable to accept the Claimant’s submission. I agree with the Defendant’s submission that the onus is on the Claimant to call Pei Lin since he is the one alleging that the alleged agreement took place between Deryl or Pei Lin. It is trite that he who alleges must prove. As far as the Defendant is concerned, the Defendant denies such agreement ever existed, and is prepared to rely on the Lease Agreement which more than adequately shows that no such option was granted to the Claimant. It is for the Claimant to lead rebuttal evidence, and he failed to do so.

Conclusion

28     For these reasons, I dismiss the claim.

29     I will hear parties on costs (including disbursements) and consequential orders. Parties are to file written and reply submissions within five and ten days of this judgment respectively, each limited to 10 pages.

"},{"tags":["Criminal Law – Statutory offences – Computer Misuse Act – Unauthorised disclosure of access code","Criminal Law – Statutory offences – Moneylenders Act – Harassing borrower on behalf of unlicensed moneylender","Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending","Criminal Procedure and Sentencing – Sentencing – Young offenders"],"date":"2024-08-26","court":"District Court","case-number":"District Arrest Case No 904508 of 2024 and 2 Others","title":"Public Prosecutor v Cheah Bernice","citation":"[2024] SGDC 220","url":"https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32039-SSP.xml","counsel":["Janessa Phua (Attorney-General's Chambers) for the Public Prosecutor","Asoka Markandu (Anitha & Asoka LLC) for the Accused."],"timestamp":"2024-09-03T16:00:00Z[GMT]","coram":"Paul Quan","html":"Public Prosecutor v Cheah Bernice

Public Prosecutor v Cheah Bernice
[2024] SGDC 220

Case Number:District Arrest Case No 904508 of 2024 and 2 Others
Decision Date:26 August 2024
Tribunal/Court:District Court
Coram: Paul Quan
Counsel Name(s): Janessa Phua (Attorney-General's Chambers) for the Public Prosecutor; Asoka Markandu (Anitha & Asoka LLC) for the Accused.
Parties: Public Prosecutor — Cheah Bernice

Criminal Law – Statutory offences – Computer Misuse Act – Unauthorised disclosure of access code

Criminal Law – Statutory offences – Moneylenders Act – Harassing borrower on behalf of unlicensed moneylender

Criminal Law – Statutory offences – Moneylenders Act – Assisting in unlicensed moneylending

Criminal Procedure and Sentencing – Sentencing – Young offenders

26 August 2024

Judgment reserved.

District Judge Paul Quan:

Introduction

1       The accused, Cheah Bernice (“Ms Cheah”), a 21-year-old Singaporean has pleaded guilty to a charge of unauthorised disclosure of access code under section 8(1)(a) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”) by disclosing her Singpass credentials to an acquaintance. She has also consented to have two charges under the Moneylenders Act (Cap 188, 2010 Rev Ed) (“MLA”) taken into consideration for the purpose of sentence (“TIC”). These relate to the offences of harassing a borrower on behalf of an unlicensed moneylender under section 28(2) of the MLA (“MLA harassment offence”) and assisting another in unlicensed moneylending under section 14(1) of the MLA (“MLA assistance offence”). She had committed the offences in 2021 when she was 18 years old.

2       For the CMA offence, Ms Cheah can be punished with a fine not exceeding S$10,000 and/or to imprisonment for a term not exceeding three years under section 8(2) of the CMA. The prosecution has sought to impose a sentence of ten to 14 weeks’ imprisonment on Ms Cheah based on the harm caused and her moderate culpability in the offence. The defence has submitted for a short custodial term of four to six weeks’ imprisonment on account of the prejudicial delay in prosecution, Ms Cheah’s demonstrative rehabilitative potential during the intervening period of delay, her youth and absence of criminal antecedents, as well as her remorse. I have reserved judgment on sentence after convicting Ms Cheah on 14 August 2024. I now impose a sentence of eight weeks’ imprisonment on Ms Cheah and set out the reasons for my decision.

Issues to be decided

3       The issues I have to decide in this case are:

(a)     first, whether I should call for a pre-sentencing report to assess Ms Cheah’s suitability for probation;

(b)     second, the sentencing principle(s) that are operative in this case; and

(c)     third, whether imprisonment should be considered as a sentencing option and if so, the length of the custodial term.

4       I resolve the issues in this way:

(a)     I should not call for a probation pre-sentencing report because the severity of the CMA offence rules out probation as a viable or realistic sentencing option;

(b)     the dominant sentencing principle is general deterrence, displacing the presumptive primacy of rehabilitation for youthful offenders aged 21 or below at both the time of the offence and the time of sentencing, given the prevalence of scams in recent years and the concomitant need to disincentivise younger money mules who are lured into facilitating the criminal activities of scam syndicates;

(c)     since probation is ruled out as a sentencing option because of the severity of the CMA offence (and community sentences are therefore also ruled out by extension) and Ms Cheah is not eligible for reformative training (“RT”) because she has already turned 21 years old at the time of her conviction, imprisonment should be considered as a sentencing option. It is the appropriate punishment to press into service to meet the ends of both deterrent and retributive justice required in this case; and

(d)     given that RT is not available to me as a sentencing option and imprisonment is decidedly the more severe and also punitive sentence between the two, the appropriate custodial term lies between the parties’ positions and has to be calibrated accordingly. To be sure, I do not find any prejudicial delay in prosecution that warrants such calibration.

Procedural history of case

5       Before I set out my analysis of the issues, I outline the procedural history of this case by way of context. The matter was first fixed before me to take Ms Cheah’s guilty plea on 2 August 2024. The prosecution originally proceeded with the two MLA harassment and assistance charges against Ms Cheah and for the CMA charge to be TIC. During this mention, the prosecution sought a two-week adjournment to formally convey its revised position to the defence by 8 August 2024 to proceed with the CMA charge against Ms Cheah and to TIC the MLA charges instead, and that consequently, the prosecution would not object to a probation pre-sentence report being called. On 8 August 2024, the prosecution filed an amended statement of facts and its revised address on sentence to that effect.

6       When the matter next came before me on the morning of 14 August 2024, the prosecution sought a further three-week adjournment for an internal review of its sentencing positions for all similar cases. Understandably, the defence objected having formally accepted the prosecution’s revised offer that was duly conveyed on 8 August 2024 along with its sentencing position. Given how the matter has progressed, I decided I should proceed to take the plea but afforded time to the prosecution and adjourned the mention to the afternoon. Subsequently, in the afternoon just before the mention, the prosecution filed a revised address on sentence seeking its present proposed imprisonment term for Ms Cheah instead.

Analysis of issues

7       I analyse in turn the issues on which my sentencing decisions rests.

8       I preface my analysis with two preliminary observations:

(a)     first, the fact of plea, charge or sentence bargaining between the prosecution and the defence does not feature in my deliberation. I express no view on how such bargaining eventually panned out as this lies outside the court’s province; and

(b)     second, although the prosecution filed two revisions to its address on sentence, first on 8 August 2024, and subsequently on 14 August 2024, this was before I took Ms Cheah’s plea and the prosecution is therefore open to change its position before that time.

Issue 1: Probation pre-sentencing report should not be called because probation is not viable or realistic given severity of CMS offence

9       I decide that I should not call for a probation pre-sentencing report. Even though the basic criteria for probation are met in this case, it is not a viable or realistic sentencing option, given the severity of the CMA offence (coupled with the two serious MLA offences that are TIC).

10     I am cognisant that when a court deals with sentencing an offender who is aged 21 or below, it should generally call for a probation pre-sentencing report before imposing sentence, and should not embark on an assessment of the offender’s suitability for probation without the benefit of such a report: A Karthik v PP [2018] 5 SLR 1289 at [20]. However, a court may, in general, sentence such a youthful offender without obtaining a probation pre-sentencing report if the basic prerequisites for probation to be considered are not met, or if the court is clearly satisfied that probation is not a viable or realistic option on the facts of the case: A Karthik at [21].

Probation not a viable or realistic sentencing option

11     In this case, probation may be considered at law since the CMA offence is not one for which its sentence is “fixed by law”: section 5(1) of the Probation of Offenders Act 1951 (2020 Rev Ed) (“POA”). Its sentence is not fixed in quantum and in type; the court can impose a fine and/or imprisonment and has the discretion to decide on the quantum of the fine and/or imprisonment to be imposed. The proviso to section 5(1) of the POA, in particular proviso (a) that requires Ms Cheah to be above 16 but below 21 years old at the time of her conviction, also does not apply as the CMA offence is not punishable with either a specified minimum sentence or mandatory minimum sentence. Proviso (b) to section 5(1) of the POA relating to previous convictions does not apply to Ms Cheah because she is a first offender.

12     Even though this case satisfies the basic criteria for probation, I must still make a preliminary assessment whether probation is a realistic option on the facts of the case. If the accused is young (that is, between 16 and 21 years old), a first offender and convicted of a relatively less serious crime, a court should order a probation report: Wong Shan Shan v PP [2008] SGHC 49 at [21]. In exceptional circumstances, an accused, who appears, on the face of it, suitable for probation (in that he satisfies the basic criteria for probation) can nonetheless be given a custodial sentence without the court ordering a probation report: Wong Shan Shan at [23].

13     Given the severity of the CMA offence (coupled with the serious MLA offences that are TIC), I decide that probation is not a viable or realistic sentencing option in this case; this case falls squarely within the exceptional circumstances where the court can impose a custodial sentence without ordering a probation report.

CMA offence is severe

14     In assessing the severity of the CMA offence, comparisons will undoubtedly be drawn with the offences faced by the youthful offenders in A Karthik and Wong Shan Shan:

(a)     the offender in A Karthik faced one count of abetting the offence of cheating under section 420 of the Penal Code punishable with imprisonment that may extend to 10 years and can be coupled with a fine. He was 17 at the time of the offences and 22 at the time of sentencing; whereas

(b)     the offender in Wong Shan Shan faced:

(i)       two counts of vandalism under section 3 of the Vandalism Act (Cap 341, 1985 Rev Ed) punishable with a fine not exceeding S$2,000 or to imprisonment not exceeding three years;

(ii)       two counts of intentional harassment under section 13A(1)(a) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cp 184, 1997 Rev Ed) punishable with a fine not exceeding S$5,000; and

(iii)       eight other vandalism counts TIC.

She was 19 years old at the time of the offences and at the time of sentencing.

15     In this case, Ms Cheah was 18 years old at the time of the CMA offence and 21 years old at the time of sentencing. The maximum punishment for the CMA offence is a fine not exceeding S$10,000 and/or imprisonment not exceeding three years. I have said elsewhere that the consideration of the nature and gravity of the offence is necessarily a fact-specific exercise: PP v Saiful Rizam bin Assim [2014] 2 SLR 495 at [41]; the severity of the CMA offence must be properly appreciated in its current context of the prevalence of scams and proliferation of money mules set against their upward trajectories over the years: PP v Goh Hai Shan [2024] SGDC 178 at [8] and [9], and cannot be solely determined by its maximum penalties: PP v Hari Suvvan, unreported, DAC 908777 of 2024, at [8].

16     I am fortified in my view by the observation of the Sentencing Advisory Panel in its recent published guidelines for scams-related offences[note: 1] (“SAP Guidelines”) at [7(c)] that:

[F]ines, probation and community sentences are generally not appropriate [for scams-related offences]. Imprisonment or reformative training, whichever is more appropriate should be considered given the need for deterrence and the public interest in suppressing scams. This applies to all offenders (even if below the age of 21) except juvenile offenders dealt with in the Youth Court. [Emphasis in original]

The panel’s observation is pertinent in this case for three reasons:

(a)     first, the SAP Guidelines apply to the new section 8A of the CMA 1993 (2020 Rev Ed). The CMA offence that Ms Cheah had committed and has been convicted for is under the predecessor section with the same prescribed punishment for first offenders;

(b)     second, the SAP Guidelines recommend a sentencing approach for scams-related offences. The nature of Ms Cheah’s CMA offence is scams-related, where a victim’s bank account was used to effect an unauthorised transfer to a bank account that was opened in Ms Cheah’s name using the Singpass credentials she had previously disclosed; and

(c)     third, the two-fold concerns of the number of scam cases and the amounts lost to scams were just as relevant, if not more so, in 2021. In 2021, the scam situation was dire, seeing an exponential uptick in both. The total number of reported scam cases rose by 52.9% to 23,933 cases as compared to 2020 and made up of half of the overall crime in 2021, up from 42% in 2020.[note: 2] The total amount lost to scams increased by a whopping 137.9% to S$632 million as compared to 2020.[note: 3]

17     For completeness, I note that both of Ms Cheah’s TIC offences are more severe than the CMA offence in terms of their prescribed punishments:

(a)     For the MLA harassment offence, the prescribed punishment under section 28(2)(a) of the MLA is mandatory imprisonment not exceeding five years that can be coupled with a specified minimum fine of not less than S$5,000 and not more than S$50,000. Because property damage was caused, mandatory caning of not less than three and not more than six strokes of the cane is also prescribed by section 28(3)(b)(i) of the MLA. Although Ms Cheah cannot be caned, imprisonment of not more than 12 months can be imposed in lieu of caning under section 325(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

(b)     For the MLA assistance offence, it is a mandatory minimum fine of S$30,000 and up to S$300,000 and mandatory imprisonment for a term not exceeding four years.

18     Both offences prescribe a specified minimum sentence and mandatory minimum sentence respectively: Mohamad Fairuuz bin Saleh v PP [2015] 1 SLR 1145 at [18] and [48]. Proviso (a) to section 5 of the POA therefore applies and since Ms Cheah has turned 21 at the time of her conviction, probation would therefore not have been an available sentencing option for both offences if they were proceeded with against Ms Cheah.

Reformative training not available as sentencing option

19     The sentence of RT is also not an available sentencing option for the CMA offence for the same reason that Ms Cheah is required to be above 16 but under 21 years old at the time of her conviction: section 305(1)(a) of the CPC. For this reason, while I have applied the SAP Guidelines for their general principles at [16], I am more circumspect about applying them beyond its conceptual approach and framework to the CMA offence, as though RT were available, duly considered, and ruled out as a sentencing option, landing with imprisonment as the more appropriate sentencing option between the two. The actual imprisonment term will have to be calibrated accordingly to account for the fact that it is the only sentencing option that is available to Ms Cheah in her particular circumstances: see [35(c)], below.

Issue 2: Deterrence as dominant sentencing principle

20     If an offender is 21 years old or below at both the time of the offence and the time of sentencing, the law takes the presumptive view that the primary sentencing consideration in such cases will generally be rehabilitation, because both the retrospective and prospective rationales underlying such presumptive primacy of rehabilitation would apply: A Karthik at [44].

21     In this case, Ms Cheah was 18 years old at the time of the CMA offence and she is 21 years old at the time of sentencing. However, the primacy of rehabilitation is diminished, if not eclipsed, by considerations of deterrence and retribution because the CMA offence is serious and the harm caused severe: PP v Koh Wen Jie Boaz [2016] 1 SLR 334 at [30].

22     General deterrence is the operative sentencing consideration in this case. The CMA offence is serious because it contributed to the burgeoning number of scams and the attendant losses in 2021: see [16(c)], above. Over the past five years, the number of reported scam cases increased by more than seven-fold, while the amount lost to scams have quadrupled: SAP Guidelines at [5]. There is an imperative need to deter like-minded offenders, in particular youthful ones who are being targeted, from equipping scam syndicates with an effective layering tactic in the form of an intricate network or web of bank accounts to perpetrate scams whose proceeds are untraceable and unrecoverable: Goh Hai Shan at [9]. The opportunity cost of crime must be sufficiently high so that these targeted youths think long and hard before becoming money mules for easy money. The consequent blockage of easy access to new and existing bank accounts effectively cripples syndicate activity by disrupting the crucial layered network built on the back of these accounts though which proceeds of scams are typically laundered: SAP Guidelines at [6].

23     The harm caused in this case is also quite severe. The values transacted through Ms Cheah’s bank account that was eventually opened using her Singpass credentials are not only, in and of themselves, quantitively significant; crucially, they represent criminal benefits flowing to the perpetrators and correspondingly actual losses. It is not a victimless crime; losses can be devastating to victims and can lead to significant psychological harm; they can also lead to the erosion of public trust in public and financial institutions and the use of electronic transactions: SAP Guidelines at [7(b)]. Indeed, there is at least one identified victim who reported an unauthorised transfer of a significant value to Ms Cheah’s bank account.

Issue 3: Imprisonment as appropriate sentence to meet ends of deterrent and retributive justice

24     Probation is ruled out as a sentencing option because of the severity of the CMA offence; so are community sentences. Ms Cheah is not eligible for reformative training because she has already turned 21 years old at the time of her conviction. As such, I avail myself of imprisonment as a sentencing option. It is the appropriate punishment to press into service to meet the ends of both deterrent and retributive justice in this case.

25     While I am more circumspect in adopting the actual starting point sentence and uplifts recommended in the SAP Guidelines because the imprisonment term will need to be calibrated accordingly to take into account that the fact that RT, which is the other alternative sentencing option suitable for CMA offences, is not available to Ms Cheah in this case: see [35(c)], below, I adopt its general approach of considering the relevant offence-specific and offender-specific factors present in a case to arrive at the appropriate custodial sentence. I decide that the sentence for this case should lie between the parties’ respective sentencing positions, that is, ranging from six to ten weeks’ imprisonment.

Offence-specific factors

26     Aggravating offence-specific factors are present in this case, namely:

(a)     actual harm caused to the Singpass system and that a bank account was opened as a result of the disclosure of Singpass credentials;

(b)     actual loss caused as a result of the disclosure of Singpass credentials and that significant funds had also been received or transferred out of the account; as well as

(c)     personal gain that motivated the commission of the CMA offence, coupled with the complicit subjective knowledge that the Singpass credentials disclosed would be used to open bank accounts.

(1)   Actual harm caused to Singpass system and actual loss caused

27     The harm caused in this case is two-fold:

(a)     first, the integrity of the Singpass system was compromised and its inviolability undermined: Goh Hai Shan at [13]; SAP Guidelines at [27]. Ms Cheah also did not take remedial steps even when she subsequently received a notification informing her that the password to her Singpass account has been changed;

(b)     second, a bank account was opened in Ms Cheah’s name as a result of the disclosure of her Singpass credentials. Over three mere days, 19 transactions coursed through the account with a total of S$210,006 debited and S$174,804 credited, with at least one victim reporting that her bank account was used to effect an unauthorised transfer of S$110,000 to Ms Cheah’s bank account.

(2)   Motivated by personal gain and possessed subjective knowledge that Singpass account would be used to open bank accounts

28     Ms Cheah was wholly culpable in that she was motivated to commit the CMA offence for personal monetary gain of S$400, even though she did not eventually receive the gain. She did this because she found herself short on money as she was supporting the family of her former boyfriend. Such circumstances leading to the offence do not make her less culpable.

29     She was complicit in the subjective knowledge that her Singpass account would be used to open bank accounts. She contacted an acquaintance, Sean, to borrow money from him. Sean offered her S$400 for access to her Singpass account and told her that it would be used to open bank accounts. Without enquiring further, she accepted the offer and disclosed her Singpass credentials to Sean. She clearly went into this transaction with her eyes wide open, and later chose to shut them to a real risk that the bank accounts, which were eventually opened, would be used for nefarious purposes. She could not have seriously thought that she would be paid $400 for doing close to nothing. Rather, she was blinded by greed and was quite content to turn a blind eye in return for S$400 come what might.

30     The fact that personal gain motivated the commission of the offence, a bank account was opened as a result of the disclosure of Singpass credentials, significant funds of S$100,000 or more had been received or transferred out of the account, and that there was actual harm or loss as a result of the disclosure of Singpass credentials, are all aggravating offence-specific factors: SAP Guidelines at [28(a)], [28(d)]-[28(f)].

31     As for her financial circumstances that led her to commit the offence, it is trite that financial hardship is generally of little or no mitigatory value; it was also not suggested that Ms Cheah was experiencing exceptional or extreme hardship arising out of genuinely desperate needs and times: SAP Guidelines at [16]. I segue into considering other mitigating (and aggravating) factors personal to Ms Cheah that are present in this case.

Offender-specific factors

32     I consider the aggravating and mitigating weight to be accorded to the other relevant factors personal to Ms Cheah that are present in this case:

(a)     Ms Cheah’s youth is of limited mitigatory weight and a sentence of imprisonment can meet the ends of any residual and un-displaced rehabilitative considerations in this case in any event;

(b)     Ms Cheah should not be regarded as a first offender because she had committed multiple offences; the absence of criminal antecedents is a neutral factor in any event;

(c)     Ms Cheah cannot rely on the delay in prosecution to seek a lenient sentence;

(d)     the rehabilitative progress shown by Ms Cheah during the intervening period of delay is strongly in her favour of a sentence that commensurate with not undoing the progress she has made so far and destroying any hopes of recovery and reintegration;

(e)     the presence of TIC charges in the form of serious MLA offences is aggravating; and

(f)     a full 30% reduction in sentence is accorded to Ms Cheah for her early guilty plea.

(1)   Any residual rehabilitative considerations can be met by a sentence of imprisonment

33     The defence has submitted that Ms Cheah was a youthful offender, being only 18 years old at the time of her offence. The prosecution has also factored this into its sentencing position considerations. I have already dealt with how this the presumptive primacy of rehabilitation, which is driven by this retrospective rationale, is largely, if not fully, displaced by considerations of deterrence and retribution: see [20] and [21], above. There is no suggestion that rehabilitation cannot take place in prison or continue even after imprisonment to meet the ends of any residual rehabilitative considerations: PP v Chong Hou En [2015] 3 SLR 222 at [67].

(2)   Ms Cheah not regarded as first offender and absence of antecedents neutral factor

34     Even though she does not have any prior convictions, I exercise my prerogative not to regard Ms Cheah as a first offender when she has committed multiple offences: Chen Weixiong v PP [2003] 2 SLR(R) 334 at [17]. In any event, the absence of criminal antecedents is a neutral factor; it is an absent aggravating factor, not a mitigating factor: BPH v PP [2019] 2 SLR 764 at [85].

(3)   Delay in prosecution

35     The defence has argued that it would be fair to impose a more lenient sentence on Ms Cheah on account of the delay in prosecution that had prejudiced her: A Karthik at [49(a)], the gravamen of this being she had committed the offence when she was 18 years old in 2021, but was only charged in 2024 when she turned 21. I hold a different view for three reasons:

(a)     first, the delay was attributed in part to Ms Cheah herself. An offender should generally not be permitted to rely on an inordinate delay in prosecution to seek a lighter sentence if he had been responsible for the delay in any way: A Karthik at [56]. According to the prosecution, Ms Cheah had failed to report for station bail from February to October 2022. In April and May 2022, the investigation officer sent letters requesting to interview her but she did not respond. In July 2022, she was traced to her workplace only to discover that she has been terminated. She remained uncontactable until she eventually showed up for statement-taking on 31 October 2022. I was unpersuaded by the argument that it was not impossible to trace and find Ms Cheah since her bailor was available. Her bailor could have been contacted or paid a visit at her house. The onus is on Ms Cheah to respond and report promptly to the investigation officer when the letters requesting to interview her were served on her registered address;

(b)     second, it is one thing for Ms Cheah to readily admit to the offences; it is quite another to ensure that the investigative and charging process is thorough to establish and ensure that the evidence bears out the offences; and

(c)     third, there was no prejudice because the prosecution has indicated that given the nature of the CMA and MLA offences, a sentence of RT would have been sought in any event if Ms Cheah were charged and convicted before she turned 21. If she were sentenced to RT, this would have entailed at least a minimum incarceration period of six or 12 months, depending on the intensity at which the RT is pegged, coupled with a period of community supervision thereafter. As RT is not available to Ms Cheah as she is 21 at the time of her conviction, the prosecution has sought a term of ten to 14 weeks’ imprisonment in its place. Although juxtaposing RT with imprisonment is not quite comparing like-with-like because imprisonment is fundamentally a very different and more severe punitive sentence, a significant difference in the incarceration periods (ie six- or 12-months’ RT as compared to ten to 14 weeks’ imprisonment) serves to narrow the gulf somewhat. The sentence of imprisonment is further subject to the possibility of remission, whereas the RT is not.

(4)   Rehabilitative progress made during intervening period relevant to sentence

36     Rather than rely on the delay in prosecution to seek a more lenient sentence, the better argument is that the delay in prosecution has afforded the court the opportunity to gauge how Ms Cheah has progressed in her rehabilitation in the intervening period: A Karthik at [49(b)]. Although Ms Cheah is partially responsible for the delay in prosecution and is therefore less justified in relying on such delay to seek a lighter sentence, this does not preclude the court from taking into account any rehabilitative progress that she has made during the period of the delay for the purposes of determining the appropriate sentence to impose: A Karthik at [57].

37     In this regard, I give due weight that she has willed herself to be rehabilitated during this intervening period of almost three years in that:

(a)     she has removed herself from the source of her offending behaviour. Being short on money was only symptomatic of that behaviour; the root cause was the need to support the children and family of her former boyfriend, whom she had since broken up with;

(b)     she is presently enrolled in a foundational diploma course at Kapalan’s Higher Education Academy and also gainfully employed on a part-time basis;

(c)     she supports her family and also helps to take care of her mother who requires regular dialysis; and

(d)     she has not reoffended and remained crime free. This is testament to the strength and effectiveness of the familial support that has kept her on the straight and narrow.

38     I am therefore cognisant that the length of the custodial term should not undermine this rehabilitative progress Ms Cheah has made between the time of her offence and the time of her eventual sentencing: A Karthik at [52]. Too long a period of incarceration has the potential to undo progress she has achieved thus far: Ang Zhu Ci Joshua [2016] 4 SLR 1059 at [9]. When imposing sentence, care must be taken to ensure that it is not such a crushing sentence that could destroy any hope of Ms Cheah’s recovery and reintegration: Ang Zhu Ci at [5].

(5)   Presence of TIC charges aggravating

39     Ms Cheah has two other TIC charges. Because this involve serious MLA offences, this is taken against her because the general effect of TIC charges is to enhance the sentence for the charge that is proceeded with against the accused: PP v UI [2008] 4 SLR(R) 500 at [38].

(6)   Full 30% reduction in sentence due to early plea

40     The parties agree that Ms Cheah should be accorded the full 30% reduction in sentence for her early guilty plea. I too agree because I am persuaded that this is motivated by genuine contrition as is consistent with her earlier remorseful behaviour to readily admit to her offences.

Sentence of eight weeks’ imprisonment to be imposed

41     I have cautioned elsewhere against using Goh Hai Shan to extrapolate the length of custodial sentences in similar cases: Hari Suvvan at [17]. Goh Hai Shan should properly be regarded as an outlier case because of the sheer number and size of the transactions as well as the astronomical value of criminal proceeds involved. It should not straitjacket any higher or lower limits to sentencing the same or similar CMA offences. This is in the same vein as the caution I sounded in Goh Hai Shan itself at [38] against attempting to use the size of criminal proceeds in previous cases to arithmetically determine the sentence for the cheating offence in that case. Attempts to discern or insistence on such linear correlations will be to miss the woods for the trees and will often be unfruitful.

42     As I understand it, the usual imprisonment term sought for a CMA offence pre-SAP Guidelines is between three to three-and-a-half months. This is represented by the higher end of the prosecution’s proposed sentencing range of ten to 14 weeks’ imprisonment in this case. On the other hand, the defence’s proposed sentencing range of four to six weeks’ imprisonment does not quite give sufficient deterrent bite. The appropriate sentence is closer to between six to ten weeks’ imprisonment. The upshot of balancing the offence-specific and offender-specific factors lands on the side of imposing an imprisonment term of eight weeks on Ms Cheah:

Offence-specific factors

Offender-specific factors

Actual harm to Singpass system (+)

Youth (x)

Actual loss caused (S$110,000) (+)

(with significant funds received or transferred out of account)

First offender (x)

Absence of criminal antecedents (x)

Bank account opened as a result disclosure of Singpass credentials (+)

(with subjective knowledge that Singpass account would be used to open bank accounts)

Delay in prosecution (x)

Rehabilitative progress shown during the intervening period of delay (-) (-)

Personal gain (+)

TIC charges (+)

Financial circumstances leading to offence (x)

Early guilty plea (-)



43     I am cognisant that eight weeks’ imprisonment is half of the starting sentence recommended in the SAP Guidelines for an archetypal CMA offence involving an accused person who has given an early indication of guilty plea. While I have adopted the principles and general sentencing approach in the SAP Guidelines, I am circumspect in applying the recommended starting point sentence and uplifts for three reasons:

(a)     first, this is a transitional case in that the SAP Guidelines were published last week during the course of my deliberations after the parties have already submitted on sentence;

(b)     second, given the procedural history of this case: see [5] and [6], above, I do not think Ms Cheah should be made to bear another development in the case, including the new sentencing approach recommended by the SAP Guidelines; and

(c)     third, given that RT is not available as a sentencing option and the strong rehabilitative progress that she has made during the intervening period of delay, I do not think an imprisonment term that is close to six months should be visited upon Ms Cheah. The effects of a two-month incarceration period under a punitive sentence should not be understated in the absence of a rehabilitative-punitive one. However, it is necessary, fair and measured.

44     It stands to reason that the sentence for this case should be confined to its unique facts.

Conclusion

45     I therefore sentence Ms Cheah to an imprisonment term of eight weeks’ imprisonment with effect from today.

46     In summary:

(a)     I decide not to call for a probation pre-sentencing report because the severity of the CMA offence rules out probation as a viable or realistic sentencing option;

(b)     The operative sentencing principle is general deterrence and this displaces the presumptive primacy of rehabilitation for youthful offenders aged 21 or below at both the time of the offence and the time of sentencing. There is a need to disincentivise youthful offenders from being lured to become money mules who facilitate syndicated scam operations and to stem the rising tide of scams;

(c)     As probation is ruled out and RT is also not available as a sentencing option, imprisonment is considered and is an appropriate sentencing option to press into service to meet the ends of deterrent and retributive justice as required in this case; and

(d)     I adopt the principles and general sentencing approach of the SAP Guidelines, but exercise circumspection when applying the recommended starting sentence and uplifts because the sentence of imprisonment in this case has to be calibrated to take into account the fact that a punitive sentence is resorted to at first instance in the absence of a rehabilitative-punitive sentence.

47     I commend parties for their industry and diligence, in particular Mr Asoka, who took on this case as a criminal legal aid scheme matter. While I may not have agreed with all of his submissions, he has discharged his duties competently and with distinction. I also acknowledge the contributions and efforts of Singapore Management University’s Project Lighthouse, from whom I understand Mr Asoka has derived much assistance for his case.

[note: 1]Sentencing Advisory Panel, “Guidelines for Scams-Related Offences” <https://www.sentencingpanel.gov.sg/files/Guidelines/Guidelines_For_Scams_Related_Offences.pdf> (21 August 2024) at para 7(c).

[note: 2]Singapore Police Force, “Annual Scams and Cybercrime Brief 2021” <https://www.police.gov.sg/-/media/C167DEC20A18405CA4AFFC79D0B3240C.ashx> (16 February 2022) at para 6.

[note: 3]Singapore Police Force, “Annual Scams and Cybercrime Brief 2023” <https://www.police.gov.sg/-/media/8F06592D8FBE475C8D2B92EB3BFFE7FC.ashx> (18 February 2024) at table titled “Total Amount Lost to All Scams (in millions) at para 3.

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Public Prosecutor v Liew Sheng Yan
[2024] SGMC 59

Case Number:Magistrate's Arrest Case No 900708 of 2024 & Ors, Magistrate's Appeals No 9146 of 2024 - 01
Decision Date:26 August 2024
Tribunal/Court:Magistrate's Court
Coram: Kok Shu-en
Counsel Name(s): DPP Yap Jia Jun for the Public Prosecutor; Victor David Lau Dek Kai (Drew & Napier LLC) for the Accused.
Parties: Public Prosecutor — Liew Sheng Yan

Criminal Procedure and Sentencing – Sentencing

Criminal Law – Section 417 read with Section 109 Penal Code – Section 3(1)(a) read with section 12 and section 14 Computer Misuse Act

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9146/2024/01.]

26 August 2024

District Judge Kok Shu-en:

Introduction

1       The accused person Liew Sheng Yan is a 24-year-old Singaporean male who pleaded guilty to one charge under section 417 read with section 109 of the Penal Code 1993 (the “cheating charge”), and one charge under section 3(1)(a) read with section 12 and section 14 of the Computer Misuse Act 1993 (“CMA”) (the “CMA charge”).

2       Another two charges for offences under section 417 read with section 109 of the Penal Code and one charge for an offence under section 3(1)(a) read with section 12 and section 14 of the CMA were taken into consideration (“TIC”) for the purpose of sentencing.

3       I sentenced the accused to a sentence of 12 weeks’ imprisonment on the cheating charge and 10 weeks’ imprisonment on the CMA charge. Both sentences were ordered to run concurrently for a global sentence of 12 weeks’ imprisonment.

4       The accused is dissatisfied with the sentences imposed and has filed an appeal.

Facts

Facts relating to the cheating charge

5       Sometime in April 2023, the accused was approached by one Chan Zhi Hao Felix (“Felix”), who asked him to open an account with the bank CIMB to transfer money for online gambling purposes. Felix told the accused that his own bank account had been frozen, and he promised that he would pay the accused $2000 in exchange for the use of his CIMB bank account.

6       The accused and Felix had been friends since they were both in secondary school.

7       The accused agreed to Felix’s proposal and proceeded to open an account with CIMB on 24 April 2023 (the “CIMB account”). The account opening form contained an advisory or warning from the Singapore Police Force that stated as follows:

Advisory from the Singapore Police Force – Warning

Your account should be for your own use and you are responsible for all transactions made through your account.

You may be facilitating criminal activities such as money laundering and/or unlicensed moneylending if you:

1. Knowingly allow other people to operate, access and/or control of your account; and/or

2. Knowingly receive money from strangers, dubious sources, or other unverified sources.

You can be prosecuted for the relevant offences if your account is used to receive or transfer money linked to criminal activities. These offences carry a punishment of a fine and/or imprisonment.

You should make the necessary application to your financial institution if you wish to authorise the operation, access and/or control of your account to a third party. A failure to do so would subject your account to additional risk mitigation measures, and in some cases, your financial institution may terminate or restrict your use of your account and other related accounts you may have with your financial institution.

I/We acknowledge that I/we have read and agree to all the above.



8       In the account opening form, the accused declared and confirmed that he was the beneficial owner of the CIMB account, and that he would be transacting for his own account and not on behalf of any other person or entity. The declaration and confirmation made by the accused were deceptive, since his intention was to hand control over the CIMB account to Felix. As a result of this deception, CIMB omitted to conduct due diligence on the ultimate beneficial owner or controller of the CIMB account.

9       On the same occasion that the accused opened the CIMB account, he also opened an internet banking account. He then passed the internet banking login credentials and password to Felix and changed the phone number and email address associated with the internet banking account. In so doing, the accused relinquished control over the CIMB account to Felix.

10     The accused did not receive the $2000 that he was promised by Felix for the CIMB account. Investigations revealed that between 1 June and 31 August 2023, the CIMB account received $26,347.48 in deposits and $26,346.42 was withdrawn. The source of the funds and the reasons for the transfers are unknown.

Facts relating to the CMA charge

11     The accused also had a bank account with the OCBC bank (the “OCBC account”), which he had opened in January 2023 as part of an application for an OCBC credit card but did not use.

12     In June 2023, Felix found out that the accused had the OCBC account and asked for it, so that that he could transfer money for online gambling. Again, he offered to pay the accused $2000 for the OCBC account. The accused agreed to hand over the OCBC account to Felix and did so by handing the internet banking login credentials and password and changed the phone number and email address associated with the internet banking account.

13     By relinquishing control over the OCBC account to Felix, this meant that persons other than the accused would be utilising the internet banking functions to carry transactions in the OCBC account, which meant that the accused and Felix had caused the computer of OCBC to perform functions for the purpose of securing access without authority to programmes held in that computer.

14     The accused did not receive the $2000 that he was promised by Felix for the OCBC account. Investigations revealed that between 25 July and 15 August 2023, the OCBC account received $22,511 in deposits and $13,500 was withdrawn. The source of the funds and the reasons for the transfers are unknown.

Antecedents

15     The accused was untraced.

Prosecution’s sentencing submission

16     The Prosecution sought a global sentence of 3.5 to 4 months’ imprisonment, comprising of a sentence of 3.5 to 4 months’ imprisonment for the cheating charge and 3 to 3.5 months imprisonment for the CMA charge, with both sentences to run concurrently.

17     The Prosecution emphasised the need for deterrence in light of the fact of the scam epidemic in Singapore, and the role that money mules who allow the use of their bank accounts to receive and transfer illicit funds play in this web of criminal conduct. It also highlighted the impact that offences such as these have on the delivery of financial services and the integrity of the economic infrastructure.

18     Reference was made to three case precedents – Tang You Liang Andruew v Public Prosecutor and another appeal [2023] 3 SLR 229 (“Andruew Tang”), Public Prosecutor v Liao Bang Xiong [2023] SGDC 228 (“Liao Bang Xiong”) and Public Prosecutor v Goh Hai Shan [2024] SGDC 178 (“Goh Hai Shan”).

19     All three cases involved offenders who faced charges under section 417 read with section 109 of the Penal Code for conspiring to cheat banks by falsely declaring that they would be the sole operators of the respective bank accounts that they were applying for, when in fact they intended to cede control over these bank accounts to third parties, unbeknownst to the banks. This was conduct not unlike that in the cheating charge in this case. The offender in Goh Hai Shan also faced charges for offences under the CMA, which similarly involved the relinquishing of control over bank accounts to third parties.

20     For the cheating charge, the Prosecution submitted that the accused’s conduct involved a moderate level of harm and culpability. It noted that actual harm had materialised in this case, given that significant sums of money totalling about $26,000 had been transferred through the CIMB account, though the source of these funds and the purpose of the transfers was unknown. The Prosecution argued that this distinguished the case from Andruew Tang, where it was noted by the District Court and the High Court that the bank accounts opened by the offenders had not been misused and thus no serious harm was caused.

21     On the issue of culpability, the Prosecution argued that the accused could not reasonably have believed that he was facilitating lawful or legitimate activity, given that he had been informed by Felix that Felix’s own bank account had been frozen. There was also the police advisory that accompanied the CIMB account opening form that would have put him on notice that the account could be used to facilitate illegal activity.

22     Comparing the present case with Andruew Tang and Liao Bang Xiong, the Prosecution argued that the accused’s level of culpability was more similar to that in Liao Bang Xiong, where the offender knew that his account would be used for illegal activity, specifically unlicenced moneylending. In contrast, the offender Tang in Andruew Tang was found to have a low level of culpability as he did not think that he was doing anything illegal.

23     The Prosecution pointed out that the accused in this case had been motivated by monetary gain, and that there were two other TIC charges involving two other bank accounts.

24     Accordingly, it was submitted that the appropriate sentence for such conduct had the accused elected to claim trial would have been between 5 to 6 months imprisonment, which could then be adjusted downward to account for his plea of guilt within Stage 1 of the Sentencing Advisory Panel’s Guidelines, to arrive at a sentence of 3.5 to 4 months imprisonment.

25     The Prosecution argued that the same sentencing considerations applied to the CMA charge, with a further downward adjustment to account for the fact that the accuse did not deceive OCBC into opening a new account but handed over an existing account to Felix. For this charge, the Prosecution thus proposed a sentence of 3 to 3.5 months imprisonment.

26     The Prosecution submitted that both sentences could run concurrently in this case, given that the offence occurred relatively close in time to each other and involved a similar modus operandi with Felix.

Defence’s sentencing submission and mitigation

27     The Defence urged the court to impose a global sentence of not more than 1 week’s imprisonment.

28     In the written mitigation plea, the Defence explained that the accused and Felix became close friends after meeting at the age of 13 when they were both in secondary school. It was highlighted that the accused came from a comfortable family background and had been relatively sheltered for most of his life, and that he worked at his father’s business, which had annual revenues of approximately S$5 million. The Defence’s argument was that the accused was not in financial want, and that he had acted out his trust in his longtime friend.

29     The Defence’s account of how the accused came to be involved in these offences was that Felix told the accused that he had been making money online via online gambling, and that he could gain greater rewards and bonuses by topping up his gaming account with new bank accounts. Felix claimed that his own bank account had been frozen and asked the accused to open and give him access to new bank accounts so as to enable Felix to continue earning these rewards and bonuses. Felix assured the accused that the opening of these bank accounts was “unlikely to be illegal, and that even if it was illegal, it was only Felix who was committing a crime since he was the one who was actually using the bank accounts”[note: 1]. The Defence’s position was that in his naivety, the accused completely trusted Felix and believed that he was doing nothing wrong.

30     The Defence argued that even in cases where an offence concerns public interest, a sentencing judge ought not to place undue weight on the consideration of public interest without ensuring that the sentence passed is proportionate to the severity of the offence and the culpability of the offender, citing the case of Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR 653 as the authority for this proposition.

31     With regard to the cheating charge, the Defence argued that the facts in this case were analogous to that of the offender e present case, noting that the offender Andruew Tang You Liang (“Tang”), one of the two offenders who were dealt with in Andruew Tang, in that both of them were not the masterminds and did not act on behalf of syndicates. Unlike the offender Tang who had claimed trial, the accused had elected to plead guilty at an early stage.

32     The Defence also argued that assessment that Tang’s culpability was low applied equally to the accused’s level of culpability in this case, noting that Tang had reviewed bank account opening advisories in the same fashion as the accused. It was also noted that Tang was engaged in an enterprise of being a nominee director and did so for financial gain, which the Defence argued was not present in the accused’s case since he was from a well-to-do family and had no need for the monies offered by Felix.

33     As for the case of Liao Bang Xiong, the Defence argued that this was a far more aggravated case than the present, as the offender there clearly understood that the bank account in question would end up being used by unlicensed moneylenders and even attempted to restrict access to the bank account in an attempt to steal the tainted monies from the account for himself and his accomplices. Contrast was also drawn between the antecedents of the offender in Liao Bang Xiong and the accused who was a first offender, emphasising that the accused in this case was truly “some simpleton who had been made use of” by Felix (see [22] of Liao Bang Xiong).

34     Accordingly, the Defence argued that a sentence of one week’s imprisonment was appropriate for the cheating charge, bearing in mind the similarities with the offender Andruew Tang who was also sentenced to one week’s imprisonment for each charge under section 417 read with 109 of the Penal Code that he claimed trial to.

35     As for the CMA charge, the Defence argued that a similar sentence of one week’s imprisonment ought to be imposed having regard to the principle of proportionality.

36     Reference was made to the case of Public Prosecutor v Tay Bee Lang [2021] SGDC 4 (“Tay Bee Lang”), which involved offences under section 417 of the Penal Code and section 3 of the CMA but in the context of the use of a lost credit card to make unauthorised purchases. In that case, the offenders were sentences to 3 weeks’ imprisonment for the offence under section 417 of the Penal Code and 2 weeks’ imprisonment for the section 3 CMA offence.

37     The Defence argued the case of Tay Bee Lang engaged a specific public interest in checking credit card fraud, but that no such similar concern was engaged in the present case. Accordingly, a downward calibration from the sentence imposed in Tay Bee Lang to arrive at one week’s imprisonment was appropriate.

38     The Defence agreed with the Prosecution that the sentences on both the cheating charge and the CMA charge ought to run concurrently for a global sentence of one week’s imprisonment.

Reasons for the sentences imposed

Punishment provisions

39     Pursuant to section 417 of the Penal Code, the cheating charge in this case is punishable with imprisonment for a term not exceeding 3 years, or with a fine, or both.

40     As for the CMA charge, section 3 of the CMA provides that this offence may be punished with a fine not exceeding $5,000, or to imprisonment for a term not exceeding 2 years, or to both.

Sentencing considerations

41     I agreed with the Prosecution’s submission that general deterrence is the dominant sentencing consideration in the present case, which concerns the abuse of bank accounts to facilitate illicit fund flows through the banking system. As the Prosecution aptly described, Singapore is in the throes of a scam epidemic, as a worrying upward trend of scam cases has continued to build in recent years. Shortly after I had rendered my decision in this case, the Ministry for Home Affairs released statistics that showed that victims in Singapore had lost $385.6 million in the first six months of 2024, which was a 16.3 percent increase for the amount lost over the same period in the previous year.[note: 2]

42     The success of these criminal schemes rests largely on the ability of bad actors not only to deceive victims into parting with their money, but also in the subsequent squirrelling away of the funds through bank accounts. These bank accounts do not belong to the scammers themselves, but third parties who are persuaded into ceding control over bank accounts that they have opened. The conduct of the accused in this case – in opening and relinquishing control over his bank accounts to a third party – is exactly the sort of conduct that is enabling the funnelling of funds away from victims of scams.

43     That said, I agreed with the Defence that the mere fact that there are public interest considerations engaged in a particular offence ought not to mean that the sentence imposed can be indiscriminately deterrent without regard to proportionality, and that a careful analysis of the specific harm and culpability factors in each case must be carried out.

44     On the issue of harm, while I have noted that the relinquishing of bank accounts to third parties enables the laundering of scam proceeds, there was no indication in the present case that any of the bank accounts that the accused handed over to Felix were in fact involved in transactions of illicit funds. The Statement of Facts indicated that the source and purpose of the transfers in the CIMB and OCBC accounts remained unknown.[note: 3] The amounts of transactions were also fairly modest, at about $26,000 for the CIMB account and $20,000 for the OCBC account. This stood in contrast with the very substantial amounts involved in the case of Goh Hai Shan and some of the unreported cases noted at [40] of that decision.

45     As for the level of culpability, I was not persuaded by the Defence’s arguments that the accused’s level of culpability was comparable to that of the offender Tang in Andruew Tang, who was regarded as being of low culpability (see Public Prosecutor v Tang You Liang Andrew and another [2021] SGDC 266 at [137]).

46     Unlike many of the offenders in similar cases who relinquish their bank accounts to unknown persons that they meet online, I accepted that there was a basis for the accused to trust Felix in this case given that they had been friends for a long time. However, I did not think that this factor alone significantly reduced his level of culpability. Even by the Defence’s own account of the events, Felix’s representations to the accused were full of red flags that the bank accounts were not being handed over for innocent purposes.

47     First, there is the fact that Felix’s own bank account had been frozen and could not be used, which led him to ask the accused for bank accounts. This would have alerted the accused to the fact that whatever Felix had been doing with his bank account had already led to action being taken on the bank account.

48     Second, Felix assured the accused that what Felix was asking of the accused was “unlikely to be illegal, and that even if it was illegal, it was only Felix who was committing a crime since he was the one who was actually using the bank accounts”[note: 4]. As I pointed out to Counsel for the Defence in court, I found it disturbing that the accused would happily hand over his bank account to Felix even after Felix had told him plainly that there was a chance that Felix could be committing a crime by using the bank account.[note: 5] I did not think that this was something that could be accounted for by simple naiveness. Even if the accused had no direct knowledge of what the bank account would eventually be used for, this signalled to me that he had no issues even if Felix’s use of the account turned out to be an offence.

49     Third, there was the promise of substantial rewards for each bank account that was handed over to Felix. As the Prosecution put it, this was a disproportionately and illogically large reward for the handing over of a bank account. While the Defence claimed that the accused had no need for these rewards given his family’s wealth, it nevertheless remained an agreed fact that this reward was a part of Felix’s offer that the accused accepted.

50     Additionally, there was also the fact that the accused had been put on notice by the police advisory that accompanied the CIMB account opening form, which clearly alerted him to the risks that accompanied ceding control of his bank account to a third party, including the risk that the bank account could be used for illegal purposes.

51     The Defence asserted that the offender in Andruew Tang also received similar advisories when he opened the bank accounts in that case but was unable to point me to the specific reference in the written decisions where this was indicated.[note: 6] Instead, what appears to have been presented to the offender in Andruew Tang was a declaration of the ultimate beneficial owner (“UBO”) of the account (as described at [7] of Andruew Tang). To my mind, the nature of this UBO declaration is significantly different from the police advisory that was before the accused when he opened the CIMB account, and accordingly the level of notice that the accused was given was also significantly greater.

52     As for the comparison with Liao Bang Xiong, I accepted that there were aspects of that case that were more aggravated than the present case, such as the level of knowledge of what the bank account would be used for, the conduct in attempted to steal the tainted proceeds, and the offender’s antecedents.

53     However, the offender in Liao Bang Xiong ultimately only handed over one bank account to a third party. In contrast, the accused in this case ceded control over four bank accounts – the CIMB account, the OCBC account and two other bank accounts that formed the subject matter of the TIC charges.

Sentences imposed

54     On a balance of these factors, in my view, the level of culpability of the accused in this case was closer to that of the offender in Liao Bang Xiong and not to that in the case of Andruew Tang.

55     While the case of Tay Bee Lang also involved charges under the same provisions, this was in fact a case involving credit card fraud, which is factually quite distinct from the present case and as such I did not think that it was such a helpful reference point compared to Liao Bang Xiong and Andruew Tang.

56     While I accepted that the accused did not have the same level of knowledge that the offender in Liao Bang Xiong had, i.e. he did not know what the bank accounts were going to be used for, I did not think that it lay in his mouth to claim that he did not think he was doing anything wrong, given the circumstances under which the accused acceded to Felix’s offer to essentially purchase his bank accounts from him as I outlined at [46] to [51] above. These circumstances were quite sufficient for him to know that the bank accounts were not being handed over for legitimate purposes, even if he did not know exactly what that illegitimate purpose might be.

57     There was also the fact that the accused engaged in this conduct repeatedly – apart from the CIMB account and the OCBC account that were the subject matter of the proceeded charges, there were two other bank accounts that were subject matters of the TIC charges.

58     Weighing these factors alongside the level of harm and considering the sentences imposed in Liao Bang Xiong and Goh Hai Shan, in my view the appropriate sentence for the cheating charge was 12 weeks’ imprisonment, and the appropriate sentence for the CMA charge was 10 weeks’ imprisonment.

Global sentence

59     While both the cheating charge and the CMA charge concerned different bank accounts and therefore different legally protected interests, in my view, it was not necessary in this case to order both sentences to run consecutively.

60     Considering the overall conduct of the accused’s conduct over all the charges, which involved the same conspirator and similar modus operandi, in my view that the overall sentence of 12 weeks’ imprisonment adequately reflected the accused’s criminality in this case.

Conclusion

61     For the reasons set out above, I imposed a global sentence of 12 weeks’ imprisonment on the accused.

62     The accused is currently on bail pending appeal.

[note: 1]See Defence’s Mitigation Plea at [15]

[note: 2]The Straits Times, 22 August 2024, “Scam victims in S’pore lost $385.6m in first half of 2024 as number of cases hit high of 26,587”

[note: 3]See Statement of Facts at [7] and [11]

[note: 4]See Defence’s Mitigation Plea at [15]

[note: 5]Notes of Evidence on 30 July 2024, page 10 line 28

[note: 6]Ibid, page 11 line 21 to page 12 line 22

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